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PROCEEDINGS  AND  DEBATES 

CONSTITUTIONAL  CONVENTION 

STATE  OF  VIRGINIA 


HELD  IN  THE  CITY  OF  RICHMOND  JUNE  12,. 1901,  TO  JU.NE  26,  1902 


VOI^,  II. 


RICHMOND,  VA. 

THE   HERMITAGE    PRESS.  INC. 

1906. 


COMMITTEE  ON  PRINTING  DEBATES. 


CARTER  GLASS,  Chairman. 

C.  V.  MEREDITH,  BEVERLY  A.  HANCOCK, 

J.  H.  LINDSAY,  J.  M.  WILLIS, 

HENRY  FAIRFAX,  GEORGE  K.  ANDERSON. 


J.  H.  LINDSAY,  Editor  and  Compiler. 


PROCEEDINGS  AND  DEBATES 

OF  THE 

CONSTITUTIONAL  CONVENTION 


WEDNESDAY,  January  1,  1902. 


The  Convention  met  at  12  o'clock       Hon.  John  Goode,  President,  in  the  chair. 


INAUGURATION  CEREMONIES. 


The  invited  guests  having  been  admitted  to  the  places  on  the  floor  reserved  for  them, 
the  Governor-elect,  Hon.  Andrew  J.  Montague  entered  the  hall,  accompanied  by  the  com- 
mittee of  the  Convention  (Delegates  Thom,  Green,  Himton,  Stuart  and  Allen),  the 
committee  of  the  General  Assembly  (Senators  Barksdale,  Sears,  Wallace,  Ople  and  Rever- 
comb,  and  Representatives  Cardwell,  Folke«,  Gumming,  Lewis,  Clarke,  Stearns  and 
Bland),  the  retiring  Governor,  Hon.  J.  Hoge  Tyler;  the  Lieutenant-CxOvernor-elect  Hon. 
Joseph  E.  Willard;  the  retiring  Lieutenant-Governor,  Hon.  Edward  Echols;  the  Attorney- 
General-elect,  Hon.  William  A.  Anderson;  the  Speaker  of  the  House  pf  Delegates,  Hon. 
J.  F.  Ryan;  the  president  and  associate  judges  of  the  Supreme  Court  of  Appeals,  and  the 
Mayor  of  the  city  of  Richmond. 

The  Governor-elect,  the  retiring  Governor,  the  Lieutenant-Governor-elect,  the  retiring 
Lieutenant-Governor  and  the  Attorney-General-elect  were  escorted  to  seats  on  the  plat- 
form near  the  President's  chair. 

Rev.  T.  B.  Thames,  D.  D.,  pastor  of  the  First  Baptist  Church  of  Danville,  Va.,  offered 
the  following  prayer: 

We  seek  Thy  face  and  Thy  favor,  oh  Lord,  Thou  who  art  the  God  of  our  fathers  and 
the  God  and  Father  of  our  Lord  and  Saviour,  Jesus  Christ.  We  crave  the  bene- 
diction of  Thy  presence  and  the  gift  of  Thy  peace  this  morning.  We  give  to  Thee  thanks- 
giving for  all  the  blessings  that  have  enriched  and  enlarged  our  lives,  especially  for  those 
that  have  brought  us  liberty  and  that  have  maintained  our  Government. 

We  give  Thee  thanks  for  all  the  memories  that  gather  themselves  about  this  place 
in  which  we  stand.  We  give  Thee  thanks  for  the  cherished  traditions  and  for  the  history 
of  our  great  and  beloved  Commonwealth.  AVe  thank  Thee  for  all  the  great  and  good 
men  that  have  lived  and  labored  before  us,  witnessing  for  righteousness,  achieving 
liberty,  never  counting  their  lives  too  dear  for  the  weal  of  the  Commonwealth.  We 
pray  that  a  double  portion  of  their  spirit  may  come  upon  all  who  gather  under  these 
gracious  auspices  this  morning,  especially  upon  Thy  servant  who,  by  the  voice  of  the 
people,  is  thrust  forward  into  this  place  of  high  usefulness  and  honor  and  responsibility. 
We  pray  that  the  spirit  of  the  fathers  of  the  elder  days,  whose  mantle  falls  upon  his 
shoulders,  and  into  who^ee  labors  he  now  enters,  may  come  to  him  with  affluent  and 
benignant  power  and  grace;  that  he  may  have  every  girding  and  equipment,  yea,  even 
every  imbuement  and  inspiration,  that  will  give  him  fitness  and  competency  for  the 
discharge  of  the  duties  of  this  high  office.  Give  Thou  unto  him  health  of  body,  sanity 
of  mind  and  a  conscience  void  of  offense  before  God  and  man.  and  do  Thou  establish  the 
work  of  his  hands,  yea,  the  work  of  his  hands  do  Thou  establish  it. 

Likewise  we  invoke  the  divine  blessing  upon  all  these  that  are  to  be  associated 
with  him  and  that  with  him  are  to  take  upon  themselves  this  morning  the  oath  of  office. 
The  Lord  grant  unto  them  every  gift  of  grace  and  wisdom  that  shall  make  them  work- 


LAW  LIBRARY 


1708 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


men  that  need  not  to  be  ashamed  in  the  great  affairs  of  the  State;  and  may  the  Lord 
bless  us  all,  high  and  low,  in  whatsoever  relation  in  life  we  stand,  in  whatsoever  place 
God  in  his  providence  has  thrust  us,  endeavoring,  each  of  us,  to  be  faithful  and  true, 
serving,  by  the  will  of  God  our  generation;  and  then  may  we  be  gathered  in  peace  unto 
our  fathers;  we  beg  for  Thy  name's  sake.  Amen. 


ADDRESS  OF  THE  PRESIDENT. 

The  President:  Gentlemen  of  this  Convention,  in  response  to  your  invitation,  the 
Governor-elect,  the  Lieutenant-Governor-elect  and  the  Attorney-General-elect  have  come 
into  your  presence  for  the  purpose  of  taking  the  oath  of  office.  The  occasion  is  one  of 
extraordinary  interest  and  is  withont  a  precedent  in  the  history  of  the  Commonwealth. 
The  retiring  Governor  and  Lieutenant-Governor  are  here.  The  speaker  of  the  House  of 
Delegates  and  the  joint  committee  of  the  General  Assembly  are  here.  The  members  of 
the  Supreme  Court  of  Appeals  are  here.  The  Mayor  of  the  City  of  Richmond  is,  here; 
and  the  people  are  constructively  here  in  the  persons  of  their  chosen  representatives  in 
the  Constitutional  Convention,  which  is  temporarily  clothed  with  their  sovereignity. 

The  office  of  governor  of  Virginia  is  one  of  great  diginity  and  responsibility.  It  hasi 
been  heretofore  filled  by  some  of  her  most  illustrious  sons.  Two  Virginia  governors 
have  become  presidents  of  the  United  States.  A  Virginia  governor  wasi  the  father  of 
one  president  and  the  great-grandfather  of  another. 

The  first  governor  under  the  Constitution  of  1776  was  Patrick  Henry,  the  inspired 
orator,  whose  heaven-born  eloquence  kindled  the  flame  of  liberty  in  the  hearts  of  the 
people  and  incited  them  to  revolution  by  the  proclamation  of  the  eternal  truth  that 
"resistance  to  tyrants  is  obedience  to  God."  The  lasit  governor  under  that  constitution 
was  William  B.  Giles,  who  also  served  his  State  with  great  distinction  in  the  House  of 
Representatives  and  the  Senate  of  the  United  States. 

The  first  governor  under  the  Constitution  of  1829-1830  was  John  Floyd,  who  partici- 
pated actively  in  the  war  of  1812,  and  represented  his  district  in  the  United  States  House 
of  Representatives.  He  was  conspicuous  for  his  valor  in  the  field,  his  wisdom  in  council 
and  hisi  devotion  to^  country.  The  last  governor  under  that  constitution  was  John  B. 
Ployd,  a  prominent  political  leader,  and  an  influential  member  of  President  Buchanan's 
cabinet,  and  a  distinguished  major-general  in  the  army  of  the  Confederate  States. 

The  first  governor  under  the  Constitution  of  1850-1851  was  Joseph  Johnson,  who 
Tepresented  his  district  seven  successive  terms  in  the  Congress  of  the  United  States 
and  died  in  the  ninety-second  year  of  his  age  beloved  and  lamented  by  all  who  knew 
him.  The  last  governor  under  that  constitution  was  that  noble  old  Virginian,  William 
Smith,  who  served  his  people  most  faithfully  and  acceptably  in  the  General  Assembly 
of  Virginia,,  in  the  Congress  of  the  United  States  and  the  Confederate  States,  as  major- 
general  in  the  Confederate  army  and  twice  as  governor  of  the  Commonwealth. 

The  first  governor  under  the  Constitution  of  1869-70  was  Gilbert  C.  Walker,  who, 
although  not  native  and  to  the  manner  born,  rendered  most  valuable  service  to  the 
people  of  Virginia  during  the  perilous  days  of  reconstruction,  and  reprensented  the 
metropolitan  district  most  efficiently.  The  last  governor  under  that  constitution  is  J. 
Hoge  Tyler,  who  retires  from  office  to-day  without  a  blot  upon  his  admistration  and 
with  the  plaudit  of  "well  done,  good  and  faithful  servant."  (Applause). 

The  Governor-elect,  Andrew  Jackson  Montague  (applause),  is  about  to  be  inducted 
into  office  in  the  126th  year  of  the  Commonwealth  and  in  the  morning  of  the  twentieth 
century,  under  the  most  auspicious  circumstances.  He  is  in  the  full  vigor  of  mature 
manhood.  He  enjoys  to  an  unlimited  extent  the  confidence  and  esteem  of  his  fellow- 
citizens.  He  will  doubtless  meet  all  their  just  expectations  and  measure  up  fully  to  the 
Jeffersonian  standard  of  honesty,  capacity  and  fidelity.  (Applause).  Under  his  patriotic 
administration  and  by  the  blessing  of  Almighty  God  we  may  confidently  indulge  the  hope 
that  our  beloved  Commonwealth,  crowned  with  the  traditions  of  history  and  bearing 


1 


DEBATES  OE  THE  CONSTITUTIONS AL  CONVENTIOI^  OE  VIRGINIA.  1709 

in  her  hands  the  splendid  trophies  of  the  past,  will  move  forward  over  the  bright  track 
of  progress  upon  a  new  career  of  prosperity  and  glory. 

The  chair  now  has  the  honor  to  present  Andrew  Jackson  Montague,  the  Governor- 
elect,  who  will  address  you.  (Applause). 

The  Governor-elect  delivered  the  following. 

INAUGURAL  ADDRESS: 

Mr.  President  and  Gentlemen  of  the  Convention'. 

My  appreciation  of  the  confidence  of  my  fellow-citizens  and  of  the  invitation  which 
brings  me  into  this  honorable  presence  can  best  be  expressed  by  this  public  and  un- 
reserved dedication  of  myself  to  the  service  which  the  oath  about  to  be  taken  will  legally 
proclaim. 

In  this  devotion  of  myself  to  the  public  weal,  I  am  not  unmindful  of  the  conditions 
w^hich  embarrass  your  most  patriotic  purposes.  No  similar  convention  was  ever  con- 
fronted with  the  difficulties  which  stand  in  your  pathway — difficulties  political,  economic 
and  sociological.  You  are  called  upon  not  only  to  extricate  the  Commonwealth  from 
political  conditions  wrongfully  imposed,  but  to  safeguard  and  make  room  for  great  and 
rapidly-growing  industry  and  commerce,  and  to  preserve  inviolate  the  precedence  and 
mighty  mission  of  our  race. 

No  political  conditions  threatening  the  intellectual  freedom  and  the  civic  virtue  of 
our  people;  no  vast  displacements  of  capital  by  machinery  and  corporate  owner-ship, 
giving  rise  to  new  and  difficult  questions  of  taxation;  and  no  racial  problems,  vital  and 
profound,  evoked  the  thought  of  the  Convention  of  1850;  while  all  of  these  momentous 
changes  and  their  consequent  results  tax  your  deliberations  and  demand  your  most 
exalted  courage.  Surely,  therefore,  these  conditions  must  secure  from  your  fellow-^ 
citizens  a  patient  and  just  consideration. 

The  Virginia  of  the  convention  just  named  and  the  Virginia  of  the  convention  in 
whose  presence  I  now  stand  afford  a  striking  contrast.  And  yet,  despite  the  years  of  war 
and  waste,  and  the  succeeding  period  of  industrial  and  social  revolution,  the  present 
is  full  of  satisfaction  and  promise. 

In  1850  our  population  was  1,119,316,  and  notwithstanding  the  fact  that  in  1890,  the 
only  year  for  which  accurate  figures  are  obtainable,  38  per  cent,  of  the  people  born  in 
Virginia  were  living  in  other  States  and  Territories  of  the  republic,  our  present  popula- 
tion is  1,854,184. 

In  1850  our  taxable  values,  excluding  slaves,  railroads  and  banks  were,  in  round 
numbers,  $385,000,000,  while  similar  assessments 'are  now  $439,061,280,  which  our  rail- 
roads and  banks  increase  to  a  grand  total  of  $513,151,849. 

In  1850  our  railroad  mileage  w^as  less  than  500  miles,  as  against  4,700  miles  in  1900, 
the  latter  not  exceeding  the  former  more  in  length  than  in  mechanical  improvements, 
comforts  of  service,  and  value.  At  the  former  date  our  railroads  were  chiefly  engaged 
in  intra  State  commerce,  whereas  now  the  five  trunk  lines  which  traverse  our  territory 
make  our  ports  of  world  importance.  This  is  conclusively  shown  by  the  fact  that  in 
1850  our  exports  were  $3,415,646,  while  for  1900  we  have  the  enormous  gain  of  $47,870,419. 

Half  a  century  ago  we  had  no  plants  comparable  to  those  of  our  day  for  the  manu- 
facture of  wood  and  iron  and  ship-building.  Virginia  now  has  the  largest  ship-yard  and 
the  largest  dry-dock  in  the  Western  hemisphere.  In  the  past  year  we  have  put  upon 
the  seas  the  fastest  battle-ship  afloat,  and  we  have  launched  the  two  largest  merchant 
vessels  ever  built  in  America.  A  new  plant,  but  recently  established  by  home  enter- 
prise and  home  capital,  is  now  not  only  building  merchant  vessels  but  is  successfully 
competing  with  old  yards  in  the  construction  of  torpedo-boats  and  torpedo-boat  destroyers, 
the  most  difficult  and  delicate  of  all  marine  work.  Indeed,  in  our  various  ship-yards  the 
value  work  on  hand  is,  in  round  numbers,  $~26,0D0,000,  giving  employment  to  some  nine- 
thousand  laborers.  L  ^  ^  ^  9  3 

LAW  LIBRARY 


1710 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 


The  extensive  manufacture  of  cotton  and  of  machinery  and  the  construction  of 
electric  plants,  together  with  the  increased  impetus  in  old  and  new  fields  of  manufacture, 
are  the  indisputable  evidences  of  the  new  industrial  life  breaking  in  upon  our  people. 

♦  While  the  acreage  of  staple  crops  is  somewhat  less,  due  perhaps,  partially  to  western 
competition,  our  large  returns  from  cattle  and  horses,  and  from  truck-farming  and  horti- 
culture, bespeak  an  assured  prosperity  for  these  forms  of  industry. 

Our  prodigious  resources  of  field  and  forest,  of  mine  and  water,  await  the  touch  of 
capital  and  skilled  labor  for  their  full  development.  Capital  must  give  the  power,  and 
educated  labor  must  broaden  and  build.  Wilh  capital  and  industrial  skill  will  come 
immigration.  But  what  will  bring  capital?  A  government  of  law  and  order,  of  security 
for  life,  liberty  and  property,  and  a  government  of  low  taxes  and  small  indebtedness. 
Taxes  will  wasite  within,  and  debt  will  bar  capital  and  people  out.  So  it  is  of  supreme 
moment  that  the  tax  rate  should  be  at  all  times  commensurate  with  economic  govern- 
ment, and  that  our  public  securities  be  retired  with  all  possible  expedition. 

But  what  of  education?  This  is  a  momentous  question  for  the  Southern  States. 
Republican  government  founded  upon  an  electorate  without  intelligence  is  a  house  whose 
foundation  is  sand.  The  predominant  feature  of  the  century  just  closed  is  the  exten- 
sion of  free  education  to  the  masses  of  the  people,  and  with  this  extension  goes  hand  in 
hand  the  wealth  producing  power  of  the  people;  for  the  material  advancement  of  a 
State  is  measured  by  the  school  privileges  of  its  people. 

But  one  education  differs  from  another  as  one  star  differeth  from  another  in  glory. 
There  is  an  education  of  the  learned  professions,  state-craft,  science  and  philosophy, 
and  there  is  an  education  of  agriculture  and  the  mechanical  arts;  the  latter  is  the 
foundation  of  wealth  and  comfort,  and  is  laid  in  the  common  schools. 

The  age  of  the  hand  is  past  and  the  age  of  the  machine  is  come.  Its  mighty  power 
is  at  play  in  modern  industrial  progress.  What  shall  we  do  with  this  force?  Shall  we 
observe  its  march  with  unconcern,  or  shall  we  command  it  to  our  own  uplifting?  If  so, 
we  must  engraft  upon  our  common  free  schools  some  forms  of  industrial  and  mechanical 
education. 

In  proportion  to  her  prosperity  Virginia's  contribution  to  public  free  schools  is 
second  to  that  of  no  State  in  the  Union,  but  it  is  now  to  be  feared  that  our  free  schools 
do  not  awaken  the  enthusiasm  nor  possess  the  full  confidence  of  our  people,  in  that  they 
do  not  meet  the  exigencies  of  the  industrial  life  which  is  flowing  across  the  threshold 
of  the  new  century.  We  should  not  resist  this  economic  impulsion.  We  should  put  our- 
selves within  its  sweep  by  the  establishment  of  a  practical  industrial  education.  It  is 
the  bounden  duty  of  our  State  to  do  this,  unless  we  would  withhold  from  generations  yet 
to  come  the  simple  discharge  of  our  patriotic  duty. 

The  decrease  in  the  number  of  those  engaged  in  agricultural  pursuits  in  the  State 
is  both  significant  and  regrettable.  Whatever  may  be  the  several  causes,  one  of  the 
moment,  I  venture  to  offer,  is  the  condition  of  onr  public  roads.  In  many  of  our  coun- 
ties, from  two  in  three  months  in  the  winter  season,  our  roads  are  a  social  and  industrial 
blockade.  This  blockade  should  be  raised.  We  should  facilitate  the  social  and  com- 
l^iercial  intercourse  of  our  rural  population.  We  have  spent  in  the  past  five  years  about 
$2,100,000  upon  the  public  roads,  but  this  great  sum  has  been  of  no  appreciable  good. 
May  not  failure  be  largely  due  to  the  fact  that  our  people  do  not  sufficiently  realize  what 
good  roads  are,  and  what  a  contribution  they  make  to  man's  comfort  and  wealth?  We 
should  at  least  start  a  good  road  in  every  county  which  now  has  none.  This  will  at  once 
prove  of  extraordinary  educational  value,  and  when  the  knowledge  of  such  benefits 
is  once  perceived  we  need  not  fear  for  the  results.  Words  are  inadequate  to  express, 
my  sense  of  the  importance  of  this  subject,  and  I  simply  suggest  this,  as  I  do  that  of 
industrial  education,  for  the  purpose,  of  inviting  public  consideration,  for  later  I  enter- 
tain the  hope  of  presenting  my  views  more  concretely  to  the  legislature. 

In  the  race  for  commercial  supremacy  it  has  been  found  essential  among  successful 
States  to  make  their  resources  known  to  the  world.  For  such  purposes  great  expositions 
have  afforded  the  best  facilities.    In  the  succeeding  year  perhaps  the  greatest  fair  of 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


1711 


the  world  will  be  held  in  St.  Louis.  The  occasion  is  of  peculiar  interest  to  Virginia,  for 
in  celebrating  the  Louisiana  purchase  we  celebrate  at  once  the  sagacity  and  patriotism 
of  Thomas  Jefferson.  Whether  it  be  wise  for  Virginia  to  make  a  mere  historic  contri- 
bution to  this  exposition  I  need  not  now  consider;  but  I  would  remind  our  people  that 
perhaps  no  such  opportunity  outside  of  our  borders  will  occur  in  the  next  half  a  century 
for  us  to  show  our  resources  and  products,  and  to  make  an  exhibition  which  will  so 
greatly  redound  to  our  material  benefit. 

Nor  should  we  forget  our  ter-centenary.  We  have  long  been  too  indifferent  to  our 
history,  and  this  occasion  will  impress  upon  the  world  that  Jamestown  wasi  the  first 
permanent  Anglo-Saxon  settlement  in  America,  and  that  fourteen  years  before  the  landing 
at  Plymouth  Rock  the  colony  at  Jamestown  had  plowed  the  furrow  and  sowed  therein 
the  seed  of  this  mighty  western  civilization.  Therefore,  let  us  make  this  occasion  a 
great  historic  episode. 

My  purpose  ia  not  to  over-estimate  the  needs  of  our  material  advancement,  but  I  can- 
not forbear  to  urge  that  the  fullest  use  be  made  of  all  the  gifts  with  which  nature  and 
circumstances  have  endowed  this  Commonwealth.  It  is  not  to  the  neglect  of  the  higher 
and  better  things  of  civic  life  that  I  now  so  earnestly  seek  the  co-operation  of  our  people 
in  the  development  of  our  resources,  and  in  the  cultivation  of  those  arts  and  industries 
which  make  for  our  peace  and  prosperity;  but  rather  to  the  linking  of  the  inspirations 
and  achievements  of  the  past  with  the  energies  and  enterprise  of  the  present  that  I 
invoke  our  people.  Let  us  take  the  best  of  the  old  and  give  it  to  the  conditions  of  the 
present. 

I  believe  with  the  great  Greek  that  the  best  science  of  ethics  is  the  best  science 
of  government.  The  force  of  civilization  is  the  superiority  of  private  life,  and  a  com- 
manding sense  of  right  and  wrong  is  the  imperial  virtue  that  moves  and  lifts  civiliza- 
tion. 

I  revere  the  old  Virginia;  the  Virginia  of  simple  living  and  high  thinking;  the  Vir- 
ginia of  sacrifice,  of  patriotism  and  of  courage;  the  Virginia  as  a  leader  of  the  armies 
of  the  American  Revolution  and  the  maker  of  the  American  Union;  the  Virginia  under 
fire  and  sword  and  surging  squadrons;  the  Virginia  in  the  agony  of  her  struggle  for  the 
resumption  of  self-government. 

Let  us  lay  hold  of  these  virtues  that  have  made  for  her  a  matchless  name  and  ap- 
ply them  to  our  material  upbuilding;  to  a  tolerant  public  sentiment  and  a  catholic 
patriotism;  to  the  elevation  and  retention  of  high  and  efficient  men  in  the  public  service, 
and  to  "a  decent  respect  to  the  opinions  of  mankind."  Then  will  the  sound  of  the  ap- 
proval of  the  people  be  more  majestic  than  the  sound  of  many  waters,  and  the  day  that 
dawns  will  be  one  of  exceeding  brightness. 

And  now,  in  the,  presence  of  these  witnesses,  and  of  Him  who  witnesiseth  all  things, 
I  am  ready  to  take  the  solemn  oath  that  is  to  seal  my  inflexible  purpose  to  serve  the 
people" of  this  Commonwealth  withoiit  fear  and  without  favor.  (Applause). 

The  president  of  the  Supreme  Court  of  Appeals  administered  the  oath  of  office  to 
the  Governor-elect,  the  IJeutenant-Governor-elect  and  the  Attorney-General-elect,  and 
thereupon  the  Convention  took  a  recess  for  five  nfiinutes  to  afford  the  members  an 
opportunity  to  pay  their  respects  to  the  newly  inaugurated  officials  of  the  State. 

At  the  expiration  of  the  recess  the  President  resumed  the  chair. 

Mr.  Boaz:  I  move  that  the  Convention  adjourn  until  to-morrow  morning  at  10 
o'clock. 

The  motion  was  agreed  to,  and  accoTdingly  (at  12:55  o'clock  P.  M.)  the  Convention 
adjourned  until  to-morrow,  Thursday,  January  2,  1902,  at  10  o'clock  A.  M. 

(No  sessions  of  the  Convention  were  held  January  2nd  and  3rd,  on  account  of  lack 
of  a  quorum — Editor.) 


SATURDAY,  January  4,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  McIIwaine,  D.  D.  . 

On  motion  of  Mr.  McIIwaine  the  Convention  resolved  itself  into  Committee  of  the 


1712 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


Whole  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Education 
and  Public  Instruction,  Mr.  Flood  in  the  chair. 

The  Chairman:  The  section  of  the  report  of  the  Committee  on  Education  and 
Public  Instruction  under  consideration  is  Section  12.  The  Secretary  will  read  the 
section. 

The  General  Assembly  shall  make  provision  for  the  maintenance  of  the  University 
of  Virginia  by  an  annual  appropriation  not  less  than  nov^  provided  by  law. 

Mr.  Marshall:  Mr.  Chairman,  is  there  not  a  motion  pending  to  strike  out  Section 
12?    If  not,  I  make  that  motion. 

The  Chairman:  The  question  is  on  the  motion  of  the  gentleman  from  Craig  (Mr. 
Marshall)  to  strike  out  Section  12  of  the  report. 

The  motion  was  agreed  to  there  being,  on  a  division,  yeas,  28;  noesi,  23. 

The  Chairman:  The  gentleman  from  Lynchburg  (Mr.  Glass)  moves  to  reconsider 
the  vote  by  which  Section  12  was  stricken  out,  and  moves  to  pass  that  by. 

The  motion  was  rejected;  there  being,  on  a  division,  ayes  25;  noes  27. 

The  Chairman:  The  question  now  recurs  on  the  motion  made  by  the  gentleman 
from  Lynchburg  (Mr.  Glass)  to  reconsider  the  vote  by  which  Section  12  was  stricken 
out. 

Mr.  Meredith:  I  simply  rise,  without  any  expectation  of  changing  any  vote  in  this 
house,  to  enter  my  protest  against  the  proposed  action.  This  State  is  struggling  to 
build  up  a  system  of  education.  There  is  not  in  the  State  a  college  to  which  any  man 
would  rather  send  his  son  than  to  the  University  of  Virginia.  I  speak  without  any 
personal  attachment  towards  it.  There  is  not  a  college  in  this  State,  however,  through 
which  any  man  would  rather  have  his  child  receive  his  final  education,  if  he  could 
afford  to  send  him  to  the  University.  And  yet  it  is  proposed  to^  hamper  this,  the  highest 
educational  institution  in  the  State. 

The  result  of  this  action  would  be,  if  we  act  so  as  to  hurt  or  hamper  the  University, 
that  men  will  send  their  children  to  Princeton,  to  Yale  and  to  Harvard,  and  they  will 
do  right.  We  may  as  well  meet  the  situation.  I  am,  a  trustee  of  one  of  the  other  col- 
leges of  this  State,  and  a  graduate  of  some  of  the  schools  of  that  institution,  and  yel 
I  do  not  hesitate  to  say  that  if  anything  is  done  to  pull  down  the  University  from  its 
high  position,  or  hamper  it  in  its  career,  I  would  not  hesitate  to  send  my  child  to  some 
high  institution  out  of  this  State,  at  which  to  get  his  education.  It  is  proposed  to 
hamper  this  institution  when  we  know  it  is  a  State  institution,  and  therefore  somewhat 
out  of  the  probability  of  getting  individual  endowments.  You  hamper  it  by  having 
it  a  State  institution.  Men"  shrink  from  giving  their  funds  to  it  because  it  is  a  State 
institution;  and  yet  the  State  does  not  help  it  as  it  should.  You  cut  its  throat  both 
ways.  Jt  is  the  leading  college  of  this  State.  It  is  the  place  where  our  young  men 
hope  to  get  their  final  education.  With  the  knowledge  on  our  part  that  our  men  are 
going  there,  knowing  that  they  cannot  even  now,  with  the  assistance  you  give  it,  get  as 
high  an  education  as  they  can  get  at  Princeton  and  Harvard,  and  colleges  of  that  kind, 
because  they  have  such  large  endowmentsi,  yet  it  is  proposed  to  strike  out  the  pro^ 
vision  which  would  tend  to  put  it  upon  a  safe  basis. 

Mr.  Keezell:  Has  not  the  Legislature  of  Virginia  in  all  the  past  years  dealt  liberally 
with  the  University  of  Virginia?  ^ 

Mr.  Meredith:  The  State  has  given  annually;  but  the  University  has  annually 
had  the  same  fight  on  it  that  exists  in  this  Convention,  and  it  is  going  to  have  the  fight 
on  it  all  the  time,  if  left  to  the  Legislature.  It  is  our  duty  to  prevent  that  fight.  It 
is  a  State  institution,  and  we  ought  to  put  it  beyond  politics.  We  ought  to  put  it  beyond 
an  annual  strain  to  get  the  little  pittance  that  it  does  get  from  the  State.  That  is  my 
position  in  reference  to  it. 

Mr.  Keezell:  I  simply  asked  the  question,  because  I  know  there  has  never  been 
any  disposition  in  the  Legislature  of  Virginia,  so  far  as  my  knowledge  of  that  body  is 
concerned,  not  to  deal  liberally  with  the  University. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OE  VIRGIXIA. 


ins 


Mr.  Meredith:  Am  I  not  right  in  stating  that  every  year  it  has  to  make  a  fight  to 
get  an  appropriation? 

Mr.  Keezell:  You  are  net  right.  It  comes  here  by  its  representatives.  I  have  been 
a  member  of  the  financial  committee  of  the  Senate  of  Virginia  for  about  twelve  years, 
and  I  know  no  institution  in  this  State  has  been  dealt  with  as  liberally  and  as  generously 
and  as  freely  as  has  the  University  of  Virginia. 

Mr.  Meredith:  That  is  all  true  as  to  its  having  dealt  with  it  more  liberally  than 
with  any  other  college  in  this  State.  Does  any  man  think  for  a  moment  that  it  ought 
not  to  so  act?  Is  it  any  credit  that  it  has  dealt  with  it  more  liberally  than  any  other 
college?  Is  it  not  the  highest  educational  institution  in  this  State?  Is  it  not  the  one 
we  all  look  to  as  the  place  where  the  young  men  of  our  State  will  get  their  final  educa- 
tion? I  have  been  told  by  men  who  know  as  much  about  the  matter  perhaps  as  some 
of  yoti  gentlemen,  that  every  year  they  have  to  come  to  the  Legislature  to  try  to  keep 
their  appropriation  from  being  cut  down. 

'Mr.  Chairman,  I  have  no  personal  interest  in  the  world  in  this  institution.  I  never 
went  to  the  University,  but  I  look  at  it  simply  as  a  citizen  of  this  State,  with  the  hope 
that  we  will  see  it  an  institution  of  the  highest  character  and  reputation.  Ve  must  look 
to  the  University  for  the  final  education  of  our  young  men.  It  is  our  duty  to  protect  it 
and  to  put  it  so  that  it  .can  always  be  safe  in  the  matter  of  its  appropriations. 

Mr.  Boaz:  Mr.  Chairman,  in  reply  to  the  statement  that  has  been  made  here  that 
no  fight  is  made  on  the  appropriations  for  the  University,  with  all  due  respect  to  the 
gentlemen  who  make  the  statement.  I  think  they  are  mistaken.  I  have  been  a  member 
of  the  Legislature  for  a  good  many  terms,  and  it  has  never  been  the  case  that  the 
University  has  secured  its  appropriation  unless  there  was  an  organization  on  the  part 
of  its  friends.  Its  friends  were  always  kept  uneasy.  They  were  forced  to  organize  and 
to  combine  with  the  friends  of  other  institutions  and  go  into  a  sort  of  log-rolling  busi- 
ness. The  fact  that  no  fight  has  iDeen  made  on  some  occasions  was  due  to  the  strength 
of  the  friends  of  the  I'niversity.  Time  and  time  again  efforts  have  been  made  to  cut 
the  appropriation  down  to  a  ridiculously  small  sum.  and  I  do  think  it  would  be  a  wise 
provision  on  the  part  of  this  Convention  to  refuse  to  strike  out  this  section.  It  would 
set  the  matter  at  rest. 

Gentlemen  urge  that  we  ought  not  to  make  any  appropriation  in  the  Constitution. 
If  we  will  turn  back  to  Section  7  it  will  be  seen  that  we  have  made  a  very  large  appropria- 
tion for  the  maintenance  of  the  public  schools.  Ve  have  set  aside  the  present  literary 
fund,  and  in  addition  to  that,  a  minimum  tax  of  not  less  than  one  nor  more  than  five 
mills  for  the  maintenance  of  the  public  schools  of  the  State.  Now,  if  the  only  objection 
to  this  provision  is  because  it  makes  an  appropriation  in  the  Constitution,  that  does  not 
hold  good,  because  we  have  done  so  in  reference  to  the  public  schools,  and  the  University 
of  Virginia  is  universally  regarded  as  the  head  of  the  public  school  system.  I  do  not  see 
why  we  should  not  make  an  appropriation  for  the  head  of  the  system,  since  it  has  been 
done  for  the  body  of  it.    I  hope  the  motion  to  reconsider  will  not  be  voted  down. 

Mr.  Mcllwaine:  :\Ir.  Chairman.  I  differ  from  the  gentleman  from  Richmond  (Mr. 
I\Ieredithl.  in  the  respect  that  I  am  an  alumnus  of  the  University  of  Virginia.  I  have  the 
profoundest  respect  for  that  institution,  and  nothing  but  the  kindest  feelings  in  regard 
to  it.  During  the  past  few  days  I  have  been  calling  up  the  memories  which  cluster  about 
my  student  days  at  that  institution  from  1853  to  1855,  when,  not  as  an  immature  boy,  but 
as  a  graduate  of  one  of  our  other  institutions.  I  entered  the  University.  I  can  recall 
nothing  in  connection  with  my  student  days  there  that  is  not  pleasant,  agreeable  and  de- 
lightful in  the  retrospect,  and  still,  sir.  I  must  differ  from  the  gentleman,  and  on  this 
ground.  I  do  not  believe  the  University,  or  any  other  of  our  State  institutions,  ought 
to  be  freed  from  allegiance  to  the  governing  power  of  the  State  of  Virginia.  If  you 
make  this  appropriation  to  the  University  of  Virginia,  why  not  to  the  Virginia  Militaiw 
Institute?  Why  not  to  the  Virginia  Polytechnic  Institute?  Why  not  to  the  Fa.rmville 
Female  Normal  School?  These  institutions  are  all  doing  valuable  service.  We  all  have 
a  high  regard  for  them.    We  believe  they  are  subserving  the  interests  of  the  State.  If 


1714 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


you  are  going  to  inaugurate  this  policy  to  fix  a  settled  endowment  for  one,  why  not 
for  all?    That  is  the  ground  on  which  I  place  it. 

The  gentleman  says  the  fact  that  the  University  of  Virginia  is  a  State  institution 
has  debarred  it  in  large  measure  from  private  endowment.  In  this  the  gentleman  is 
vastly  mistaken.  The  University  of  Virginia,  in  my  honest  judgment,  without  having  the 
facts  and  figures  before  me,  has  received  more  endowment  from  private  individuals 
than  all  the  other  institutions  in  the  State  of  Virginia  put  together,  leaving  out  alone 
the  Virginia  Polytechnic  Institute  and  the  Hampton  Normal  School.  Look  at  the  Coch- 
ran endowment.  Look  at  the  endowment  of  that  Jeffersonian  Democrat  in  Boston 
who  left  the  whole  of  his  estate,  amounting  to  several  hundred  thousand  dollars,  to  the 
University  of  Virginia;  and  many  other  endowments  that  it  has  received. 

Now,  sir,  I  would  not  say  one  word  against  the  University.  I  would  do  everything 
in  my  power  to  promote  its  welfare;  but  so  far  from  believing  that  this  step  is  advisable, 
and  that  it  would  redound  to  the  welfare  of  the  University,  I  believe  to  the  contrary,  and 
therefore  I  cannot  support  it. 

Mr.  Keezell:  Mr.  Chairman,  replying  to  the  statement  of  the  delegate  from  Albe- 
marle (Mr.  Boaz).  I  wish  to  state  that  I  have  never  known  in  my  service  in  the  Virginia 
Legislature  of  an  effort,  having  any  appearance  of  strength  whatever,  to  cut  down  the 
appropriations  for  the  University  of  Virginia.  There  have  been  times  when  it  was  not 
thought  by  the  Legislature  advisable  to  give  the  increases  asked  for  by  the  representa- 
tives of  that  institution;  and  yet  I  think  if  you  go  back  and  look  at  the  history  of  the 
last  twenty  years  you  will  find  that  only  once  in  that  time  has  there  been  a  reduction  in 
the  annual  appropriation  to  that  institution,  and  very  frequently  special  appropriations 
for  particular  purposes.  The  reduction  was  some  four  or  six  years  ago,  at  a  time  when 
there  was  a  general  cut  all  along  the  line  of  expenditures.  At  that  time  the  appropria- 
tion to  the  Universfty  of  Virginia  was  reduced  either  from  $45,000  to  $40,000  or  frorc 
$50,000  to  $45,000,  I  am  not  sure  which.  It  was  reduced  $5,000  a  year  for  two  years 
At  the  very  next  session  of  the  Legislature,  when  the  finances  of  the  State  seemed  to  be 
in  better  condition,  the  appropriation  was  restored  to  the  original  amount,  either  tc. 
$50,000  or  to  $45,000,  whichever  it  was.  As  an  evidence  of  the  friendliness  of  the  Legis 
lature  towards  the  University  of  Virginia,  when  the  University  miet  with  misfortune  and 
was  burned  out  there  was  authority  given  the  University  to  borrow  $200,000,  with  practi 
cally  little  opposition,  for  the  purpose  of  rebuilding;  the  State  making  the  additional 
appropriation  necessary  to  pay  the  interest  on  this  debt  and  create  a  sinking  fund, 
practically  guaranteeing  this  loan,  and  when  you  consider  that  it  was  very  questionable 
whether  or  not  it  was  not  an  unconstitutional  proposition,  you  can  see  how  friendly  dis- 
posed the  people  of  the  State  were  towards  the  University. 

The  annual  appropriation  has  been  gradually  increased  by  the  Legislature  from 
$15,000  in  1860  until  now  it  is  $50,000;  and  as  I  have  said,  in  addition,  has  frequently 
made  special  appropriations,  as  well  as  the  loan  of  $200,000,  upon  which  it  authorized  and 
stood  in  the  position  of  guaranteeing  payment  of  the  interest,  which,  as  I  have  stated, 
if  not  in  opposition  to  the  letter  of  the  Constitution  under  which' we  live,  was  at  least 
antagonistic  to  its  spirit.  It  seems  to  me  that  of  itself  is  a  refutation  of  the  idea  that 
there  is  an  unfriendly  spirit  towards  the  University  in  the  Legislature  of  Virginia,  and 
an  effort  to  take  away  from  this  grand  institution  a  proper  support. 

My  position  to-day  is  not  an  unfriendly  one  towards  the  University  of  Virginia.  As  a 
member  of  the  Finance  Committee  of  the  Senate,  I  have  invariably  voted  to  sustain  that 
institution  to  the  very  fullest  extent;  but  I  think  it  is  unwise,  even  from  the  standpoint 
of  a  friend  to  the  University,  to  undertake  to  put  into  this  Constitution,  which  we  hope 
may  last  a' generation  or  more,  a  cast-iron  provision  to  the  effect  that  under  no  condi- 
tion which  may  arise  in  the  future  can  there  be  any  reduction  of  fhe  appropriation  to 
this  institution;  that  if  the  very  existence  of  the  State  should  demand  reduction  along 
all  lines,  here  is  one  favored  institution  which  cannot  be  touched;  that  it  matters  not 
whether  pestilence  or  famine  or  what  not  may  confront  the  State,  you  must  appropriate 


DEBATES  OF  TFIE  CONSTITUTIONAL  CONVEXTIOX  OE  VIRGINIA. 


1715 


to  this  institution  not  a  dime  less  than  is  paid  now,  whether  its  necessities  require  it  or 
not. 

There  is  another  objection  that  may  be  urged  to  this  appropriation,  and  that  is  that 
the  language  of  the  clause  is  vague  and  indefinite.  The  question  arises,  What  does  the 
University  receive  now?  You  will  say  it  is  $50,000,  yet  when  you  come  to  analyze  this 
proposition  you  will  find  that  a  certain  portion  of  it  is  to  pay  the  interest  upon  debt. 
If  I  remember  correctly — I  did  not  expect  to  make  any  remarks  this  morning,  or  I  would 
have  had  the  exact  figures — there  is  one  item  of  $6,000  to  $8,000  to  pay  interest  and 
sinking  fund,  which  will  expire  in  1905,  because  the  debt  for  which  that  interest  has 
been  appropriated  each  year  will  have  been  wiped  out  at  that  time.  I  want  to  know 
how  this  provision  will  be  construed  if  you  pass  it  as  it  is  presented  here  by  the  report  of 
the  Committee  on  Education,  when  that  debt  has  been  wiped  out?  It  is  claimed  by  the 
friends  of  the  University  that  it  is  not  an  appropriation  to  the  University,  but  that  it  is 
an  appropriation  to  pay  a  debt  against  that  institution.  AVill  you  have  reduced  what  is 
required  in  this  proposed  provision  then  by  the  amount  you  save  in  the  way  of  interest 
and  sinking  fund  each  year,  or  will  it  still  be  held  that  you  must  appropriate  a  no  less 
amount  in  the  gross  than  you  do  now?  Suppose  all  of  its  debt  were  paid  and  no  money 
were  needed  for  interest  and  sinking  fund — what  then?  I  think  it  is  claimed  by  many 
that  much  less  than  half  of  the  $50,000  which  is  appropriated  each  year  goes  to  the  Uni- 
versity for  educational  purposes.  A  certain  portion  of  it  is  to  keep  up  repairs.  A  certain 
portion  of  it  is  to  pay  fixed  charges  in  the  way  of  interest,  provide  sinking  funds,  &c., 
and  it  seems  to  me  if  you  pass  this  section,  in  its  present  form,  you  leave  it  a  matter  of 
as  much  uncertainty  to  be  dean  with  by  the  Legislature  as  if  the  whole  matter  were  left 
in  the  hands  of  the  Legislature. 

Then  again,  I  desire  to  say  I  agree  with  the  principle  which  some  one  else  an- 
nounced, that  it  is  not  good  for  any  institution  in  the  State  to  be  put  in  the  position 
of  being  divorced  from  a  certain  amount  of  dependence  upon  the  people  of  the  State. 
I  do  not  believe  in  putting  any  institution  beyond  the  control  and  entirely  out  of  the 
power  of  the  people  who  pay  the  taxes  and  support  the  government  and  it.  The  people 
have  a  right  to  a  certain  amount  of  control  over  these  institutions,  and  they  should  not 
be  put  in  a  position  of  superiority  to  the  people  who  contribute  the  money  to  sustain 
them. 

Mr.  Glass:  Mr.  Chairman,  I  had  not  anticipated  that  this  matter  would  be  brought 
up  this  morning.  I  had  hoped  that  it  would  be  brought  up  when  there  would  be  a  full 
attendance  of  the  members  of  the  Convention,  so  that  it  might  be  decided  once  for  all. 
If  it  is  decided  by  and  in  the  presence  of  a  bare  majority  of  the  Convention  we  will  have 
to  traverse  the  matter  again  in  the  Convention,  v/hich  would  be  a  regrettable  waste  of 
time. 

The  chairman  of  the  Committee  on  Education  assigned  to  me  the  particular  duty 
of  defending  this  section  of  the  committee's  report.  I  think  I  will  be  in  order  in  saying 
to  this  Committee  of  the  A^Hiole  that  the  Committee  on  Public  Education  discussed  this 
matter  from  every  possible  standpoint;  that  on  three  or  four  occasions  the  committee 
afforded  those  members  of  the  Convention  who  are  opposed  to  this  proceeding  ample 
opportunity  to  be  heard;  that  they  were  heard  in  numbers,  and  that  on  three  occasions 
a  vote  was  taken  by  your  committee,  and  resulted  in  the  almost  unanimous  adoption 
of  this  section  by  the  committee.  On  no  occasion  were  there  more  than  two  votes  cast 
against  it. 

Mr.  Mcllwaine:  Three: 

Mr.  Glass:  I  do  not  recall  that  there  were  more  than  two  votes  on  any  one  oc- 
casion. I  recall  that,  perhaps,  there  were  three  members  of  the  committee  who  were 
at  one  time  or  another  opposed  to  it. 

I  readily  concede  that,  upon  a  superficial  view  of  the  question,  it  would  appear  to 
persons  not  understanding  the  reason  for  embodying  this  proposition  in  the  report  of 
the  Committee  on  Public  Education  an  unreasonable  thing  to  do,  and  an  indefensible 
discrimination  against  other  institutions;   but  your  committee  thoroughly  considered 


1716 


DEBATES  OE  THE  COIS^STITUTIONAL  CONVENTION  OE  VIRGINIA. 


that  phase  of  the  subject,  and  I  want  briefly  tO'  state  the  facts  of  the  case.  It  is  not  a 
discrimination  against  any  institution  in  this  State.  No  other  public  institution  of 
learning  in  Virginia  occupies  to  the  people  of  Virginia  the  same  peculiar  position  that 
the  University  does.  There  is  no  other  university  in  Virginia.  This  institution  is  the 
property  of  the  Commonwealth,  albeit  gentlemen  talk  about  it  here  as  if  we  were  making 
some  donation  to  some  institution  as  a  matter  of  mere  gift  or  charity.  The  University 
of  Virginia  is  the  property  of  this  State.  It  is  either  a  good  thing  for  the  State  to  own 
and  operate  it  or  it  is  not.  If  it  is  not,  the  appropriation  ought  to  be  discontinued  and 
the  institution  abolished.  If  it  is  a  good  thing,  then  the  State  ought  tO'  sustain  it,  and 
there  ought  never  to  be  any  doubt  that  the  State  will  sustain  it,  and  sustain  it  well. 

Every  denominational  college  in  the  State  or  Virginia — and  it  cannot  be  denied — is 
to-day  in  positive,  aggressive  hostility  to  the  University  of  Virginia.  Now  mark  that — 
I  say  every  demoninational  college  in  this  State  is  to-day  in  positive,  aggressive  hostility 
to  your  State  University,  and  I  ask  you  to  consider  for  a  moment  what  that  means.  I 
will  ask  the  distinguished  chairman  of  your  committee  if  a  single  student  from  Hampden- 
Sidney  College,  of  which  he  is  president,  attended  the  University  of  Virginia  last  year. 

Mr.  Mcllwaine:  Not  one;  but  the  reason  was  not  because  of  any  hostility,  but 
because  the  University  of  Virginia  does  not  afford  facility  for  post-graduate  students 
from  our  colleges. 

Mr.  Glass:    Why  does  it  riot? 

Mr.  Mcllwaine:    I  do  not  know. 

Mr.  Glass:  It  is  because  this  State  does  not  give  it  the  proper  support.  It  is  be- 
cause this  State  requires  it  to  pursue  a  policy  that  is  not  in  strict  accord  with  the  policy 
of  university  education. 

It  never  will  be  a  university  if  it  is  compelled  always  to  go  before  the  General  As- 
sembly and  encounter  this  talk  about  being  a  "rich  man's  school."  It  never  will  be  a 
university  as  long  as  it  has  to  go  before  the  General  Assembly  year  after  year  and  fight 
for  its  very  existence. 

I  assert,  again,  that  there  is  not  a  denominational  college  in  Virginia  that  is  not  in 
aggressive  hostility  to^  the  university;  and  why?  I  do  not  blame  them  for  it.  If  I  were 
in  control  of  these  institutions  I  would  occupy  the  same  attitude  toward  the  University 
of  Virginia;  because,  instead  of  having  a  university,  with  the  public  funds  at  its  com- 
mand, this  great  State  institution  is  compelled  to  take  young  men  who  are  immature 
as  to  their  habits,  immature  as  to  their  mental  capacity  and  without  adequate  prepara- 
tion for  university  life.  The  result  is  harmful  to  education.  Thus  it  is  the  University  of 
Virginia  comes  in  active  competition  with  the  colleges  of  this  State,  and  it  ought  not 
to  be  so.  And  yet,  when  the  board  of  visitors  has  undertaken,  as  it  frequently  has,  to 
establish  an  entrance  examination  in  order  to  make  the  university  what  it  purports  to 
be — in  fact  as,  well  as  name,  a  university — and  to  take  it  out  of  competition  with  the 
denominational  colleges,  thereby  creating  a  feeling  of  co-operation  with  these  colleges, 
we  are  invariably  met  with  the  statement  that  if  we  do  that  the  General  Assembly  will 
cut  off  this  appropriation;  and  thus  the  governing  authorities  at  the  University  of  Vir- 
ginia have  been  prevented  from  making  it  a  greater  university  in  fact. 

If  the  University  of  Virginia  is  not  to  get  the  material  turned  out  by  the  colleges 
of  the  State,  where  must  it  look  for  its  material?  It  will  not  get  the  graduates  of  our 
State  colleges  as  long  as  it  takes  immature  youths  in  direct  competition  with  these 
colleges. 

Now,  gentlemen  of  the  committee,  you  must  remember  that  your  State  University 
comes  intO'  competition  with  the  wealthier  institutions  of  this  country  at  the  North — 
colleges  like  Princeton,  and  Yale,  and  Harvard — that  are  richly  endowed,  some  of  them 
to  the  extent  of  $15,000,000,  and  yet  the  University  of  Virginia  has  available  now,  if 
I  remember  aright,  an  endowment  of  only  a  little  more  than  $350,000.  It  must  come  in 
competition  with  these  great  institutions.  Our  people  have  no  money  to  give  it;  or  if 
they  have,  they  do  not  give  it  in  shape  of  endowments,  and  I  will  say  tO'  the  distinguished 
chairman  of  our  committee  that  the  major  part  of  its  present  endowment  has  come 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


in: 


from  sources  outside  of  Virginia.  If  ihe  lax-payers  of  Virginia,  who  own  tlie  universiiy, 
are  not  going  to  sustain  it;  if  tliey  are  not  going  to  enable  tlie  governing  body  of  that 
institution  to  make  of  it  what  Mr.  Jefferson  designed  it  to  be.  and  what  it  is  to  the 
interests  of  this  State  that  it  shall  be,  who  is  going  to  do  it?  More  than  one-half  of  the 
annual  appropriatio^n  made  by  the  State  of  Virginia  is  used  for  stated  expenses,  such 
as  maintenance  of  the  buildings  and  payment  of  interest  on  account  of  the  debt  that 
came  orer  during  the  war  and  created  by  the  nre;  so  that  a  very  small  part  of  this  an- 
nual appropriation  goes  to  sustain  the  university  proper  in  its  work.  Moreover,  the 
University  of  Virginia  has  lost,  and  it  has  failed  to  obtain,  the  services  of  certain 
eminent  men  because  of  the  fact  that  its  existence  is  always  endangered.  All  of  us 
know  that  the  great  teacher  of  Greek  at  the  university.  Professor  Gildersleeve,  went  to 
Johns-Hopkins,  when  his  heart  was  with  the  University  of  Virginia.  Some  of  us  know 
that  in  recent  years,  when  the  board  of  visitors  of  your  university  undertook  to  secure 
the  services  of  Mr.  Voodrow  Vilson,  a  native  of  Virginia,  an  alumnus  of  the  University 
of  Virginia,  whose  heart  vras  constantly  turning  to  his  alma  mater,  one  of  the  most 
accomplished  men  in  this  nation,  a  genius  in  educational  work — when  it  undertook  to 
secure  his  seiwices,  and  supposed  it  had  succeeded,  it  failed  because  of  the  ver;:.*  difficulty 
we  are  now  seeking  to  cure.  Had  we  secured  Mr.  Wilson  the  probability  is  that  his 
intercourse  and  influence  with  the  wealthy  people  of  the  North  would  have  nearly 
doubled  the  endowment  of  the  university  in  a  few  years. 

Vliat  other  institution  in  Virginia  occupies  this  peculiar  attitude?  Vhat  other  insti- 
tution in  Virginia  is  hostile  to  the  denominational  colleges,  and  to  what  other  institution 
in  Virginia  are  the  denominational  colleges  hostile?    Not  one? 

I  cannot  say,  from  actual  observation,  but  other  members  of  the  General  Assembly 
do  say  to  me  that  the  University  has  a  fight  on  its  hands  even.-  time  it  gets  an  ap- 
propriation for  a  particular  purpose.  I  have  heard  it  said,  and  I  believe  it  is  true, 
because  we  have  been  met  with  the  same  opposition  right  here,  that  some  persons  do 
not  want  to  "put  the  University  in  the  Constitution"'  because  they  avowedly  do  not  want 
to  lose  the  powerful  aid  of  the  University  in  lobbying  before  the  Legislature  when  other 
institutions  need  appropriations.  Is  that  the  proper  way  to  get  an  appropriation  from 
the  General  Assembly? 

I  wish,  sir,  the  chairman  of  this  committee  had  put  somebody  here  better  qualifled 
than  I  to  state  the  case  of  this  great  institution.  It  seems  to  me  we  are  deciding  now 
the  degree  of  usefulness  which  the  University  of  Virginia  shall  be  to  the  youth  of  Vir- 
ginia. If  it  is  going  to  be  continued  along  its  present  lines  it  will  never  reach  that 
degree  of  usefulness  which  its  founder  designed  it  to  reach,  and  which  the  people  of 
Virginia  should  take  pride  in  helping  it  to  reach.  It  is  hampered  by  the  fact  that  its 
very  existence  is  frequently  dependent  upon  the  whims  or  prejudices  of  gentlemen  who 
designate  it  ''the  rich  man's  school."  I  am  not  a  graduate  of  the  University  of  Vir- 
ginia or  of  any  other  institution.  I  belong  to  that  large  and  ignorant  body  of  people 
who,  by  reason  of  the  fact  that  they  have  not  enjoyed  the  blessings  of  a  collegiate 
education,  naturally  entertain  a  prejudice  against  institutions  of  the  sort.  My  own 
prejudice  was  so  pronounced  that  when  I  was  tendered  an  appointment  to  the  board  of 
visitors,  I  declined  at  first  to  accept,  feeling  that  I  could  not  be  of  service  to  the  insti- 
tution. The  fact  that  I  take  a  different  view  and  speak  so  earnestly  for  the  University 
to-day  is  a  testimonial  to  the  power  of  enlightenment.  I  have  gone  there  and  have 
seen  the  great  work  the  University  is  doing  for  Virginia,  3.nd  I  stand  here  to-day,  with- 
out collegiate  instruction,  sadly  and  humiliatingly  deficient,  a  plain  man —  to  plead  for 
the  sons  of  the  plain  people  of  this  Commonwealth,  and  to  ask  you  to  sustain  this  insti- 
tution, to  put  it  on  a  permanent  basis  and  beyond  the  assaults  of  demagogy,  to  the  end 
that  the  sons  of  the  plain  people  of  this  Commonwealth  may  get  the  advantages  that 
the  University  of  Virginia  holds  out  to  them;  and  I  do  sincerely  hope  that  it  will  be  the 
pleasure  of  this  committee  to  reconsider  "the  vote  by  which  the  University  was  just  now 
struck  down. 

Mr.  Gregory-:    Mr.  Chairman,  it  is  with  great  reluctance  that  I  occupy  the  time 


1718  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

of  the  committee  on  this  question.  The  position  I  occupy  is  such,  however,  that  I  feel 
constrained  to  do  so,  in  view  of  the  statement  made  by  the  distinguished  gentleman 
from  Lynchburg  (Mr.  Glass),  who  has  just  taken  his  seat.  He  has  stated  to  this  com- 
mittee that  all  of  the  denominational  colleges  of  this  State  are  in  hostility  to  the  Uni- 
versity of  Virginia.  It  is  that  statement  which  calls  me  to  my  feet,  and  prompts  me  to 
ask  the  indulgence  of  this  committee  in  making  a  few  observations. 

I  am  an  alumnus  of  the  University  of  Virginia.  I  voted  against  striking  out  the 
twelfth  section  of  the  committee's  report,  and  I  did  it  for  several  reasons.  The  first 
one  is  that  I  think  the  University  should  be  an  honor  to  the  State  of  Virginia.  It  is 
due  to  the  memory  of  its  founder  that  the  State  of  Virginia  should  put  it  upon  an 
Independent  footing,  that  it  may  do  the  work  that  was  assigned  to  it  by  its  founder. 

I  have  been  connected  with  one  of  the  denominational  schools  of  the  State  for  the 
past  eleven  sessions,  this  being  the  twelfth  session.  It  is  my  privilege  to  be  permitted 
to  give  instruction  in  law  in  Richmond  College,  and  for  myself,  and  so  far  as  I  am 
able  to  know,  I  must  say  that  the  gentleman  from  Lynchburg  is  in  error  when  he  says 
that  there  is  a  feeling  of  hostility  between  all  of  the  denominational  schools  of  this 
State  and  the  University  of  Virginia.  There  is  no  such  feeling  of  hostility,  so  far  as 
Richmond  College  is  concerned;  but  I  do  admit  that  they  are  in  a  state- of  competition. 
They  are  brought  in  competition  with  the  University  of  Virginia,  and  I  for  one,  wish  to 
see  the  necessity  for  that  competition  removed,  so  that  the  University  of  Virginia  may 
confine  itself  to  such  work  as  was  designed  by  its  founder,  and  leave  to  the  colleges 
the  work  that  they  should  properly  do,  and  that  that  competition  may  be  removed.  I 
want  to  see  the  University  of  Virginia  put  upon  such  a  footing  that  she  may  not  be  in 
a.  position  which  makes  it  necessary  for  her  to  canvass  the  State  foi*  every  pupil  that 
can  be  induced  to  go  there,  without  any  reference  tO'  his  qualification. 

If  my  friend  (Mr.  Glass)  will  qualify  his  remark  by  saying  that  the  denominational 
schools  are  in  competition  with  the  University,  I  have  no  objection  to  accepting  it  as 
correct.  It  is  true,  and  the  ground  for  it  should  be  removed.  The  best  way  to  ac- 
complish this  is  to  put  the  University  upon  a  firm  and  solid  foundation,  and  I  do  trust 
it  will  be  the  will  of  the  Convention  to  do  that. 

Mr.  Glass:  Mr.  Chairman,  just  in  that  connection,  I  cheerfully  confess  that  I  was, 
perhaps,  not  entirely  fortunate  in  the  use  of  language.  Of  course  I  did  not  mean  to 
assert  that  the  denominational  institutions  of  Virginia  are  in  hostility  to  the  University, 
as  such.  I  simply  intended  to  say  that  they  are  postively  and  righteously  hostile  to 
the  policy  that  the  University  is  forced  to  pursue;  that  they  are  hostile  to  this  policy 
adopted  by  the  University,  of  canvassing  the  State,  as  my  friend  has  said,  for  the  imma- 
ture youth,  whO'  ought  to  have  his  preliminary  training  in  State  Colleges. 

Mr.  P.  W.  Campbell:  Mr.  Chairman,  it  does  seem  to  me  that  the  motion  of  the 
gentleman  from  Lynchburg  (Mr.  Glass)  to  reconsider  the  vote  that  has  just  been  taken  . 
should  prevail.  I  have  just  been  looking  over  the  membership  of  the  Committee  on 
Education,  in  view  of  the  vote  on  such  an  important  matter  as  this,  and  there  are  only 
five  members  of  that  committee  present  here  this  morning.  Some  of  the  members  who 
have  been  most  active  in  support  of  the  committee  report  are  absent.  Is  it  possible 
that  we  are  to  take — no,  I  will  not  say  snap  judgment,  but  that  we  are  to  take  premature 
judgment  and  vote  this  matter  down,  when  every  other  request  to  reconsider  has  been 
carried  almost  by  unanimous  voice? 

Mr.  O'Flaherty:  On  the  day  we  adjourned,  just  before  Christmas,  I  begged  the 
committee,  almost  with  tears  in  my  eyes,  to  wait  until  the  members  of  the  committee 
were  all  here,  and  they  would  not  do  it.    Nov/  I  want  to  know  why  they  are  not  here. 

Mr.  P.  W.  Campbell:  Well,  Mr.  Chairman,  if  the  gentleman  from  Warren  (Mr, 
O'Flaherty)  will  recollect,  we  were  on  the  eve  of  departing  for  our  homes  on  that  day. 
Everything  w-as  in  confusion,  and  if  he  will  recall  the  fact,  the  reason  why  the  members 
of  the  committee  did  not  want  the  question  put  then  was  for  the  same  reason  that  they, 
do  not  want  it  put  to-day — because  there  was  a  bare  quorum. 

Mr.  Chairman,  the  gentleman  from  Rockingham  (Mr.  Keezell),  speaking  for  the 


DEBATES  or  THE  C0XSTITUTI02^"AL  CO'^'VEXTIO^'  OF  VIEGIXIA. 


i:is> 


Legislarure — and  I  have  no  criiicism  to  pasis  upon  any  past  Legislatures,  in  any  way, 
shape  or  form —  says  that  the  University  O'f  Virginia  has  never  heen  in  danger  of  losing- 
its  appropriation.  I  knovr  the  gentleman  is  mistaken.  It  v;-as  my  fortune,  sir,  to  be 
a  student  at  the  I'niversity  of  Virginia  during  the  session  of  1596-97.  The  State  hac- 
just  passed  through  a  Presidential  election,  and  political  feeling  vras  high,  As  chairman 
of  a  committee  representing  the  tvro  literary  societies  at  the  University,  I  entered  into 
correspondence  v^ith  ilr.  William  J.  BiTan,  inviting  him,  on  behalf  of  those  societies, 
to  make  an  address  there.  The  faculty  of  the  University,  it  was  reported,  was  in  op- 
position to  him,  and  such  was  the  indignatio^n  of  a  large  portion  of  the  people  of  the 
State,  based  on  that  report,  that  I  have  in  my.  possession  now  letters  from  members  of 
the  Legislature  saying  that  unless  the  faculty  withdrew  their  objection,  when  the  matter 
of  the  annual  appropriation  came  up  before  the  Legislature  of  Virginia  they  would 
take  pleasure  in  using  their  influence  to  defeat  it. 

Ve  are  here  to-day  asking  this  committee  to  remove  the  University  of  Virginia 
from  that  very  evil  which  threatened  it  then  and  which  in  the  future  may  threaten  it. 
It  is  not  my  fortune,  sir,  to  be  a  graduate  of  the  University  of  Virginia.  Like  my 
friend  from  LAmchburg  (Mr.  Glass),  it  was  not  my  fortune  to  be  a  gi'aduate  from  any 
college,  and  I  would  not  to-day  utter  my  protest  against  the  action  of  the  committee 
if  the  members  of  the  committee,  who  are  more  competent  than  I  am  to  discharge  the 
duty,  were  here.  But  they  are  not  here,  and  it  devolves  on  some  one  to  ask  that  the 
Committee  of  the  VThole  accede  to  the  request  of  the  gentleman  from  Lynchburg — a 
request  in  no  sense  unreasonable,  a  request  that  has  been  granted  on  other  occasions 
without  a  single  question;  and  why  not  grant  it  to-day?  Is  it  because  the  friends  of 
the  University,  of  their  ovm  volition  or  through  misfortune,  are  not  here  to-day? 

Sir.  I  stand  here  pleading  not  only  for  the  University  of  Virginia,  but  for  the  young 
men  of  the  State.  As  the  youngest  member  of  this  body  I  think  I  have  the  right  to 
plead  for  the  young  men  of  the  State.  VTe  are  to-day.  in  my  opinion,  by  this  hasty  action, 
threatening  a  blow  at  the  deserving  lioor  young  men  of  the  State  of  Virginia.  Ve  all 
know  the  conditions  that  exist  in  The  Iniversity  of  Virginia:  and  why  do  the^-  exist? 
As  pointed  out  by  the  gentleman  from  Lynchburg,  they  exist  because  the  I'niversity  of 
Virginia  has  to  come  in  contact  and  competition  with  the  sectarian  colleges  of  the  State. 
You  say,  "TVhy  do  they  have  to  do  it?"  The  chairman  of  the  committee  has  asked" 
upon  more  than  one  occasion  that  you  will  not  place  the  University-  of  Virginia  upon  a 
university  basis,  but  that  you  will  force  it  into  competition  with  your  colleges;  and  then 
because  you  put  the  yoke  upon  it.  you  sa^-  that  the  University  of  Virginia,  through  State 
agencies,  is  ti^'ing  to  choke  out  the  smaller  colleges, 

'SlT.  Mcllw8.ine:  VTlll  the  gentleman  please  tell  me  when  I  said  any  such  thing  as 
that  ■? 

Mr.  P.  V,  Campbell:  Yes,  sir;  I  remember  early  In  the  summer  the  distinguished 
gentleman  and  myself  had  a  controversy,  and  the  gentleman  used  the  language  that  I 
have  just  quoted,  if  I  am  not  mistaken. 

Mr  ISIcIlwalne:  I  have  no  recollection  of  ever  having  any  controversy  wiih  the 
gentleman  on  the  subject  at  all. 

Mr.  Chairman,  before  the  vote  is  taken  I  just  want  to  say  a  word,  not  on  the  merits 
of  the  main  question  at  all.  I  have  said  ail  I  have  to  say  in  regard  to  the  main  question: 
but  I  do  not  want  to  be  misunderstood,  either  by  any  member  of  this  Convention  or  by 
any  intelligent  citizen  of  the  State  of  Virginia.  I  want  you  to  understand  that  I  act 
fairly  and  squarely  and  above  board  in  everything;  and  if  any  snap  judgment  has  been 
taken  in  this  matter  it  has  been  taken  upon  a  caution  given  by  me  this  morning  before 
making  the  motion  to  go  into  Committee  of  the  Whole.  I  sneclficaliy  stated  there  were 
only  three  questions  in  the  report  of  the  Committee  on  Education  that  had  not  been 
determined  on;  that  two  of  them  had  been  passed  by,  and  that  this  was  the  third.  I 
made  that  statement  in  order  that  any  gentleman  might  make  objection  to  going  into 
Committee  of  the  Whole.  There  was  no  objection,  and  we  went  into  Committee  of  the 
Whole  and  have  progressed  thus  far. 


1720  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

I  have  not  one  syllable  to  say  against  the  University  of  Virginia,  when  I  think  of 
the  honorable  gentlemen  who  filled  those  chairs  when  I  was  there,  such  men  as  Minor, 
under  whom  I  took  a  course,  Gessner  Harrison,  Frank  Smith,  and  McGuffey,  all  of  whom, 
I  believe,  are  in  heaven  except  the  venerable  Frank  Smith,  who  was  on  this  floor  the 
other  day,  and  whose  hand  I  had  the  pleasure  of  grasping,  a  man  who  this  year  fills 
out  his  semi-centennial  of  service  at  the  University  of  Virginia,  has  stood  there  not  only 
as  a  grand  professor,  but  as  a  grand  Christian  man,  honored  and  beloved  by  all  who 
came  under  his  influence. 

Now  I  would  say  a  word  on  the  subject  spoken  of  by  the  gentleman  from  King 
William  (Mr.  Gregory) ;  but  he  has  done  it  so  effectively  that  I  need  not  say  another 
syllable.  Mr.  Chairman,  there  is  no  hostility  on  the  part  of  the  colleges  of  Virginia 
to  the  University  of  Virginia.  We  all  recognize  our  indebtedness  to  it.  I  could  say  a 
great  many  good  things  about  the  University,  and  I  reckon  maybe  I  will  some  of  these 
days  when  the  question  comes  up  again. 

I  have  no  objection  in  the  world,  sir,  to  the  postponement;  but  just  remember  that 
the  Committee  on  Education  is  ready  to  go  on  now.  (Laughter.) 

Mr.  Marshall:  Mr.  Chairman,  I  do  not  care  to  take  up  the  time  of  the  committee 
for  more  than  a  few  moments.  I  regret  as  much  as  the  gentleman  from  Washington  (Mr. 
Campbell)  possibly  can  that  the  members  of  the  Convention  are  not  here.  If  the  lashings 
by  the  public  press  and  the  mutterings  of  the  people  do  not  give  us  a  quorum,  those  of 
us  who  attend  here  ought  not  to  be  held  responsible  for  it,  and  we  ought  to  go  on  and 
transact  this  business;  for  I  will  tell  you  there  is  going  to  be  a  hot  old  time  in  this 
State  if  we  do  not  soon  get  down  to  business  and  do  something  here.  You  may  mock 
and  you  may  treat  lightly  the  patience  and  forbearance  of  the  people,  but  when  you  get 
them  stirred  once,  they  are  not  easily  trifled  with. 

Now,  Mr.  Chairman,  if  I  understand  this  proposition,  it  is  contended  that  by  putting 
into  this  Constitution  this  appropriation  that  is  to  continue  during  the  lifetime  of  the 
Constitution  to  the  University  of  Virginia  it  will  be  enabled  to  become  a  greater  and  re- 
nowned seat  of  learning.  What  does  that  involve?  You  certainly  concede  that  you  do 
not  intend  to  do  any  more,  if  this  appropriation  is  put  in  there  in  its  present  form,  than 
you  do  now.  You  come  in  here  and  say  "You  are  not  now  doing  the  work  of  a  great 
university  and  you  will  never  get  the  Legislature  to  give  you  any  more  than  this  appro- 
priation." If  this  does  not  answer  our  purposes,  when  it  comes  in  the  shape  of  an 
appropriation  in  the  annual  appropriation  bill,  how  can  it  efficiently  be  improved  upon 
simply  because  it  comes  as  a  continuing  appropriation  in  the  Constitution  of  the  State? 

The  gentleman  from  Lynchburg  '(Mr.  Glass)  says  "Who  owns  the  University  of  Vir- 
ginia?" The  same  query  might  well  be  made  as  to  the  Virginia  Military  Institute.  That 
institute  in  its  sphere  and  in  its  relation  to  the  educational  interest  of  the  State  has 
brought  as  much  renown  and  lustre  to  this  Commonwealth  as  even  the  University  of 
Virginia.  Its  graduates  have  reflected  honor  upon  this  State  as  well  as  upon  their 
Alma  Mater;  and  if  this  appeal  is  to  be  heeded  in  behalf  of  the  University,  why  would 
it  not  come  with  the  same  grace  from  the  Virginia  Military  Institute  and  from  these 
other  institutions  which  the  State  owns  and  controls? 

If  professors  are  leaving,  and  have  left,  and  refuse  to  come  because  the  Legislature 
has  made  inadequate  appropriations  in  the  past,  how  do  you  expect  to  improve  that  con- 
dition when  you  do  not  increase  your  appropriation  in  this  Constitution,  for  the  amount 
of  the  appropriation  is  just  what  the  Legislature  gave  last  year? 

Mr.  Chairman,  it  is  now  more  than  a  quarter  of  a  century  since  I  first  occupied  a 
seat  in  the  other  end  of  this  Capitol.  Twenty-six  years  ago  there  was  an  appropriation 
to  the  University  of  Virginia  of  $15,000  and  to  the  Virginia  Military  Institute  of  $10,000, 
Gentlemen,  the  Legislature,  whatever  may  have  been  its  faults  and  its  defects,  and  doubt- 
less it  has  them,  has  not  been  unmindful  of  your  wants,  nor  has  it  been  untrue  to  your 
interests.  It  has  increased  those  appropriations  until  they  are  now  beyond  $50,000  to- 
this  institution.  I  repeat,  the  Legislature  has  not  been  unmindful  of  its  duty  to  the 
University  of  Virginia  when  you  remember  that  fact.    It  has  constantly  increased  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


1T21 


appropriation,  and  it  is  incredible  to  believe  that  it  will  be  recreant  to  this  trust  in  the 
future.  I  oppose  putting  any  appropriation  in  this  Constitution.  I  would  relegate  even 
the  fixing  of  the  salary  of  the  Governor  to  the  people  who  pay  it,  through  their  repres- 
entatives. But  he  does  not  succeed  himself.  We  refused  to  put  in  the  Constitution  the 
appropriation  for  the  salaries  of  the  circtiit  jtidges.  It  is  true  the  provision  was  left 
in  the  Constitution  fixing  the  salaries  of  the  judges  of  the  Supreme  Court  of  Appeals; 
but  it  is  very  questionable  to  me,  even  when  that  question  comes  back  on  the  floor  of 
the  Convention,  whether  that  appropriation  will  not  go  otit.  So  I  am  opposed,  on 
principle,  to  putting  this  provision  in  here.    Make  no  appropriations  in  your  Constitution. 

In  reference  to  whether  these  denominational  schools  are  antagonistic  to  the  Uni- 
versity or  not,  I  do  not  know.  I  took  one  of  my  own  boys  from  one  of  them  and  sent 
him  to  the  University  of  Virginia;  so  I  have  only  had  that  one  opportunity  to  patronize 
it,  and  I  did  so.  I  did  not  send  my  boy  to  Yale.  Harvard  or  Princeton,  but  I  did  send 
him  to  the  University  of  Virginia.  I  want  to  say  that  I  have  no  enmity  or  hostility  to 
this  institution.  It  is  not  my  good  fortune  to  be  an  alumnus  or  ever  to  have  been  within 
its  historic  precincts.  It  was  my  misfortune  to  have  received  very  little  education,  even 
less  than  the  distinguished  gentleman  from  Lynchburg,  and  that  is  very  little,  according 
to  his  own  testimony  here.  (Laughter).  But  I  will  say  in  passing  that  I  hope  the  good 
Lord  will  give  us  a  few  more  ignoramuses  in  Virginia  like  him.  (Laughter). 

Now  I  hope  we  will  remand  this  question  to  the  Legislature,  where  it  properly 
belongs,  and  where  it  has  received  proper  and  creditable  attention  in  the  past. 

It  is  not  fair  to  the  children  of  the  State  that  we  do  this,  nor  is  it  just  to  the  free 
schools  of  the  State. 

Let  us  first  foster  the  common  schools  of  the  State,  and  leave  it  to  the  Legislature 
as  to  the  higher  educational  facilities. 

The  Chairman:  The  question  is  on  the  motion  of  the  gentleman  from  Lynchburg 
(Mr.  Glass)  to  reconsider  the  vote  by  which  Section  12  was  stricken  out  of  the  report. 

The  motion  was  agreed  to;  there  being,  on  a  division,  ayes  36;  noes  16. 

Mr.  William  A.  Anderson:    I  move  that  that  motion  be  passed  by. 

The  motion  was  agreed  to. 

The  Committee  rose  and  on  motion  of  Mr.  Garnett  the  Convention  adjourned  until 
Monday,  January  6.  1902,  at  12  o'clock  meridian. 


MONDAY.  January.  6.  1902. 

The  Convention  met  at  in  o'clock  A.  :\I.  '  ■ 

Prayer  by  Rev.  AV.  F.  Dunaway.  D.  D. 

On  motion  of  :\Ir.  Hunton  the  Convention  proceeded  to  the  consideration  of  the 
report  of  the  Committee  on  the  .Judiciary. 

The  Secretary  read  Section  1.  which  was  adopted. 

Section  2  was  read  and  Mr.  Turnbull  moved  to  amend  by  striking  out  the  word 
"three"  and  insert  "one,"  so  as  to  make  the  jurisdiction  of  the  Supreme  Court  of  Ap- 
peals $100  instead  of  $300. 

The  motion  was  rejected  and  the  section  adopted. 

Sections  3  and  4  were  adopted  without  amendment. 

Section  5  was  read.  An  amendment  to  have  the  judges  of  the  Supreme  Court  of 
Appeals  elected  by  the  people  was  defeated  by  a  vote  of  29  to  38.  and  one  to  have  them 
appointed  by  the  Governor,  with  the  consent  of  the  General  Assembly  was  defeated  by 
a  vote  of  32  to  38. 

Sections  6  and  7  were  adopted. 
Section  8  providing  for  twenty-four  judicial  circuits,  was  then  read. 

On  motion  of  Mr.  Stuart.  Giles  county  was  put  in  the  twenty-first  circuit.  Russell 
was  put  in  the  twenty-second  circuit,  and  Grayson  was  put  in  the  twenty-third  circuit. 


109 — Const.  Deb. 


1722 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Keezell  moved  to  substitute  "Highland"  for  "Rockbridge"  in  the  eighteenth 
circuit. 

The  motion  was  defeated. 

The  further  consideration  of  Section  8  was  temporarily  passed  by. 
Section  9  was  adopted  without  amendment. 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  tomorrow, 
Tuesday,  January  7,  1902,  at  10  o'clock  A.  M. 


TUESDAY,  January  7,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

On  motion  of  Mr.  Ayers  the  report  of  Public  Institutions  and  Prisons  was  recom- 
mitted. 

Mr.  Stuart  moved  to  reconsider  the  vote  by  which  his  amendment  to  Section  8  of  the 
Judiciary  report  was  adopted. 

Messers.  Blair,  Gwyn  and  Wysor  spoke  in  favor  of  the  motion  to  reconsider. 
Messers.  Stuart  and  Summers  opposed  reconsideration. 
The  motion  to  reconsider  prevailed — ayes  39;  noes  36. 

The  President:  The  question  recurs  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from,  Russell  (Mr.  Stuart.) 

The  amendment  was  rejected — ayes  32;  noes  44. 
Mr.  Portlock:    1  offer  the  following  amendment: 

Strike  out  lines  1,  2,  3  and  4  of  Section  8  and  insert  the  following:  "The  State  shall 
be  divided  into  at  least  twenty-five  judicial  circuits,  as  follows:  The  county  of  Norfolk 
shall  constitute  the  first  circuit." 

The  amendment  was  rejected. 

The  President:    The  question  recurs  on  the  adoption  of  Section  8. 
The  section  was  adopted. 

Mr.  Hunton:    Mr.  President,  I  move  that  the  vote  by  which  Section  8  was  adopted 
be  reconsidered  and  that  that  motion  be  laid  on  the  table, 
The  motion  was  agreed  to. 
Section  10  was  read  and  adopted, 

Mr  Turnbull:  I  move  to  amend  Section  11  by  adding  after  the  word  "circuit,"  the 
words  "or  city."  The  object  of  that  amendment  is  simply  to  allow  the  circuit  judges 
to  hold  courts  in  cities. 

The  amendment  was  agreed  to. 

Mr.  Barbour:  I  move  to  amend  Section  11  by  striking  out  the  word  "separate"  and 
striking  out  the  words  in  lines  8  and  9,  "as  defined  in  Section  12  of  this  article  until 
said  city  court  shall  abolish  its  existing  city  court,"  and  substitute  for  them  the  words 
"having  a  separate  city  court,"  so  lhat  that  portion  of  the  section  would  read: 

But  no  separate  circuit  court  shall  be  held  for  any  city  having  a  separate  city  court. 

The  amendment  was  rejected — ayes  19;  noes  55. 
Section  12  was  read  and  Mr.  Quarles  proposed  the  following  amendment: 

Strike  out  the  following  words  in  Section  12,  after  the  word  "exist,"  in  line  50: 

In  case  of  the  abolition  of  the  corporation  or  hustings  court  of  any  city  of  the  second- 
class,  such  city  shall  thereupon  become  in  every  respect  within  jurisdiction  of  the  cir- 
cuit court  of  the  county  wherein  it  is  situated,  until  otherwise  provided  by  law,  and  the 
records  of  such  corporation  court  shall  thereupon  become  a  part  of  the  records  of  such 
circuit  court,  and  be  transferred  thereto. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE 


VIRGINIA. 


Iv23 


And  insert  in  lieu  thereof  the  following  words: 

In  case  of  the  abolition  of  the  corporation  or  hustings  court  of  any  city  of  the 
second-class  containing  five  thousand  inhabitants  or  more,  such  ciiy  shall  thereupon  have 
a  separate  circuit  court  and  become  a  part  of  the  circuit  of  the  county  in  Y\-hich  it  is 
located,  until  otherwise  provided  by  law;  and  in  case  of  the  abolition  of  the  corporation 
or  hustings  court  of  any  city  of  the  second-class  containing  less  than  iive  thousand  in- 
habitants, such  city  shall  threreupon  become  in  every  respect  within  the  jurisdiction  of 
the  circuit  court  of  the  county  wherein  it  is  situated  until  otherwise  provided  by  law, 
and  the  records  of  such  corporation  court  shall  thereupon  become  a  part  of  the  records 
of  such  circuit  court  and  be  transferred  thereto. 

Mr.  Quarles:  3,Ir.  President,  the  ordinance  under  consideration,  as  adopted  by  the 
Committee  of  the  Whole,  provides  that  the  people  of  any  city  of  the  second-class  may 
abolish  its  corporation  court  by  popular  vote.  The  words  which  I  ask  to  be  stricken  out 
provide  that  when  such  abolition  shall  take  place,  the  city  shall  pass  under  the  jurisdic- 
tion of  the  circuit  court  of  the  county  in  which  such  city  is  situated,  and  the  records  of 
the  abolished  court  shall  be  transferred  to  the  circuit  court.  These  words  were  inserted 
by  an  amendment  which  was  adopted  just  as  the  ordinance  was  completed  in  the  Com- 
mittee of  the  Whole. 

Now,  under  the  report  as  it  came  from  the  Judiciary  Committee,  on  the  abolition 
of  the  corporation  court  .in  a  city  of  the  second-class,  that  city  vvould  have  a  separate 
circuit  court;  but  the  amendment  mentioned,  as  adopted  in  the  Committee  of  the  Whole, 
changed  the  ordinance  so  that  it  now  provides,  as  I  have  stated,  that  upon  the  abolition 
of  the  corporation  court  of  any  city  of  the  second-class,  it  leaves  the  city  without  any 
separate  court  whatever. 

This  I  wish  to  prevent,  and  I  propose  hy  my  amendment  that,  upon  the  abolition  of 
the  corporation  court,  the  city  shall  have  a  separate  circuit  court  in  place  of  the  corpora- 
tion court,  until  otherwise  provided  by  law — that  is.  in  any  city  of  the  second-class  con- 
taining 5,000  inhabitants  or  more. 

The  amendment  provides  that  in  cities  of  5.000  inhabitants  and  more,  upon  the 
abolition  of  the  corporation  court,  a  separate  circuit  court  shall  be  establisned  in  that 
city,  but  in  cities  of  less  than  5.000  inhabitants,  when  the  court  is  abolished,  the  city  is 
brought  within  the  jurisdiction  of  the  circuit  court  of  the  county  in  which  such  city  is 
located.  I  fixed  upon  5,000  inhabitants  because,  under  the  present  Constitution,  this  is 
the  population  necessary  for  a  city. 

The  municipalities  in  this  State  containing  5,000  inhabitants  or  more  have  had 
separate  courts  for  thirty  years,  and  I  do  not  think  it  is  right  and  fair  to  them  that, 
upon  the  abolition  of  the  corporation  court,  they  shall  be  deprived  entirely  of  a  separate 
court.  The  people  will  be  required  to  decide  when  they  vote,  as  the  ordinance  now 
stands,  between  whether  they  will  abolish  the  corporation  court  and  have  no  separate 
court  in  its  place,  or  retain  the  corporation  court.  I  want  them  given  the  right  to  de- 
cide whether  or  not  they  will  have  a  corporation  court,  or  a  separate  circuit  court  in  its 
stead  in  cities  of  5,000  inhabitants  or  more.    This  right  my  amendment  gives. 

Mr.  Hunton:  Mr.  President,  as  I  understand  the  amendment  of  the  gentleman  from 
Augusta  (Mr.  Quarles),  It  is,  whenever  the  corporation  courts  in  these  cities  of  under 
10,000  inhabitants  have  been  abolished  under  the  terms  of  the  Constitutional  provisions, 
the  circuit  court  can  be  held  specially  for  that  city;  whereas  by  the  article,  as  it  was 
reported  by  the  committee,  the  city  remains  at  once  within  the  jurisdiction  of  the  cir- 
cuit court  for  the  county  in  which  the  court  is  held  until  the  Legislature  convenes  and 
can  make  proper  legislation  to  relieve  the  situation.  In  my  judgment,  if  the  amendment 
of  the  gentleman  from  Augusta  prevails,  it  would  produce  inextricable  confusion  in  the 
circuits  in  which  these  corporation  courts  had  been  abolished.  ^Tien  vrould  the  terms 
be  held?  How  often  would  they  be  held?  It  is  in  the  nature  of  a  provision  for  the 
circuit  court,  without  those  details  being  worked  out  in  the  Constitution.  It  seems  to 
me  that  the  orderly,  wise  way  to  do,  the  way  that  would  result  in  no  confusion  at  all, 
would  be  that,  upon  the  abolition  of  the  corporation  courts,  let  the  Legislature  pass 


1724 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


upon  it  and  arrange  for  the  situation.  Until  that  is  done,  that  city  falls,  by  the  terms  of 
the  article  as  adopted  in  the  Committee  of  the  Whole,  within  the  jurisdiction,  and  is 
always  within  the  jurisdiction,  of  the  circuit  court  of  the  county  in  which  the  city  is 
located. 

In  the  judgment  of  the  chairman  of  the  committee  this  amendment  would  produce 
inextricable  confusion,  and  I  trust  it  will  be  voted  down. 

Mr.  Quarles:  Mr.  President,  I  fail  to  see  the  confusion  that  will  result  from  this 
amendment.  No  terms  of  the  courts  are  fixed  by  the  Constitution;  they  will  all  have 
to  be  fixed  by  the  Legislature;  and  all  the  Legislature  will  have  to  do,  if  the  people  shall 
abolish  the  corporation  court  of  any  city,  will  be  to  fix  the  terms  of  the  circuit  court  for 
such  city  just  as  it  will  fix  the  terms  of  the  courts  for  the  counties  and  other  cities  of 
the  State.  From  what  will  the  confusion  result?  II  is  apparent  there  will  be  no  con- 
fusion. And  I  insist  that  it  would  be  most  unfair  and  unjust  to  the  people  of  cities  of 
5,000  inhabitants  or  more,  when  they  shall  abolish  their  courts,  to  be  compelled,  as  they 
will  be  in  some  cases,  to  go  great  distances  to  attend  court. 

The  point  I  am  trying  to  impress  on  this  Convention  is  that  cities  of  5,000  inhabi- 
tants or  more  ought  to  have  separate  courts,  and  I  simply  provide  by  this  amendment 
that  when  the  people  shall  abolish  the  corporation  court,  they  shall  go  at  once  from 
that  court  to  a  circuit  court.  As  the  ordinance  now  stands,  when  the  people  shall 
abolish  the  corporation  court,  they  will  be  entirely  without  a  separate  court. 

Mr.  Meredith;  If  Staunton  abolishes  her  city  court,  the  result  will  be,  under  your 
amendment,  that  there  will  be  separate  terms  of  the  court  for  that  city. 

Mr.  Quarles:    Yes,  sir. 

Mr.  Meredith:  That  would  put  an  additional  burden  upon  that  circuit.  Let  usi  take 
the  city  of  Charlottesville.  If  Charlottesville  abolishes  her  court,  then  you  have  to  have 
separate  terms  in  Charlottesville  for  the  Charlottesville  court.  That  will  lessen  the 
-opportunity  of  the  judge  of  that  circuit  to  perform  his  duties.  Is  not  that  the  result  of 
your  motion — bringing  about  the  confusion  the  chairman  of  the  committee  spoke  of? 
You  upset  these  judicial  systems. 

Mr.  Quarles:  I  understand  this  report  was  drawn  with  the  expectation  that  these 
cities  of  the  second-class  will  abolish  their  corporation  courts,  and  the  districts  are 
arranged  with  reference  to  that.  Why  does  the  gentleman  now  talk  about  disarranging 
the  circuits,  when  the  report  was  drawn  with  the  expectation  that  this  very  thing  I  am 
speaking  of  will  happen. 

Mr.  Meredith:  Allow  me  to  say  that  it  was  not  drawn  with  any  idea  of  a  separate 
term.  That  is  your  distinction.  You  are  not  required  to  abolish  your  court,  but  if  you 
abolish  them  voluntarily,  then  you  become  a  part  of  that  circuit,  and  the  county  of 
Albemarle  will  take  charge  of  the  business  of  Charlottesville  and  the  county  of  Augusta 
ivill  take  charge  of  the  business  of  Staunton.  You  propose  to  do  what  was  never  con- 
templated by  the  Judiciary  Committee' — to  have  separate  terms  in  these  small  cities, 
which  would  knock  out  the  whole  system  so  far  as  those  circuits  are  concerned. 

Mr.  Quarles:  Mr.  President,  I  did  not  so  understand  the  report  of  the  Judiciary 
Committee.  I  find  in  Section  11  of  the  Ordinance,  as  it  came  from  that  committee,  this 
language:  "But  no  separate  court  shall  be  held  for  any  city  of  the  second-class  until 
said  city  shall  abolish  its  existing  city  court."  Does  not  that  language  imply  that  such 
cities  are  to  have  separate  circuit  courts  on  the  abolition  of  their  city  courts?  It 
certainly  does,  and  this  was  what  I  understood  to  be  the  purpose  and  expectation  of  the 
committee.    This  language  fully  warrants  the  position  I  take. 

The  amendment  was  rejected. 

Mr.  Harrison:  Mr.  President,  I  desire  to  offer  an  amendment,  and  I  do  so  with  the 
consent  of  all  the  members  of  the  Judiciary  Committee  that  I  have  been  able  to  see. 
T  understand  there  is  no  controversy  about  it  among  the  representatives  of  the  smaller 
cities.  It  is  to  add  at  the  end  of  Section  12  these  words  "And  during  the  existence  of 
the  corporation  or  hustings  court,  the  circuit  court  of  the  county  in  which  said  city  is 
situated  shall  have  concurrent  jurisdiction  with  said  corporation  or  hustings  court  in 


DEBATES  or  THE  COXSTITUTIOXAL  CONVEXTIOX  OE  YIRGIXIA. 


1725 


all  civil  matters."  It  leaves  the  jurisdiction  of  the  circuit  courts  of  these  little  cities 
exactly  as  it  is  now.  In  the  smaller  cities  the  circuit  courts  are  considered  a  part  of 
the  counties,  and  the  jurisdiction  of  the  circuit  court  is  concurrent  with  that  of  the 
city  court.  I  understand  there  is  no  objection  on  the  part  of  the  Judiciary  Committee. 
It  is,  in  fact,  carrying  out  in  more  distinct  language  what  they  intended;  and  there  is  no 
objection  on  the  part  of  the  representatives  of  any  of  the  smaller  cities  in  the  body.  I 
therefore  ask  the  adoption  of  it. 

Section  12,  as  amended,  was  adopted. 

Sections  13,  14,  15  and  16  were  read  and  adopted,  after  being  amended  in  unimpor- 
tant particulars. 

Section  17,  relating  to  the  salaries  of  the  judges,  was  then  read. 

Mr.  Marshall  moved  to  leave  the  fixing  of  the  salaries  of  judges  of  the  Supreme 
Court  of  Appeals  to  the  Legislature,  and  Mr.  Ayers  offered  an  amendment  fixing  the 
salaries  of  the  Circuit  Court  judges  at  $2,500  per  annum. 

Both  amendments  were  rejected — the  first  by  a  vote  of  25  to  46,  and  the  second  by  a 
vote  of  34  to  39. 

On  motion  of  Mr.  Barbour  a  minimum  salary  of  $2,000  per  annum  was  fixed  for  Cir- 
cuit Court  judges — one-half  of  which  salary  is  to  be  paid  by  the  State. 

A  motion  by  Mr.  Parks,  that  the  amount  of  salaiw  provided  shall  include  mileage, 
was  defeated. 

Mr.  James  W.  Gordon,  moved  to  insert  after  the  word  "Richmond."  in  line  21,  the 
words:  The  salaries  of  the  judges  of  city  courts  in  cities  of  the  first-class  shall  be  not 
less  than  $2,000  per  annum." 

The  amendment  was  agreed  to. 

Mr.  Barbour:  Mr.  President,  I  move  to  amend  this  section  by  striking  out  the  words 
beginning  in  line  33,  "one-half  by  the  State,  and  the  other  half,"  and  substituting  the 
words,  "respective  cities"  for  the  word  "city,"  in  line  35,  so  that  the  section  will  read: 

The  salaries  of  judges  of  the  city  courts  containing  more  than  10,000  inhabitants  shall 
be  paid  by  the  respective  cities. 

I  wish  to  state.  Mr.  President,  that  the  effect  of  this  amendment  will  be  to  keep  the 
expense,  so  far  as  the  State  is  concerned,  at  just  about  what  it  is  now.  For  instance, 
in  the  city  of  Alexandria  they  have  exactly  the  same  facilities  they  haA'e  always  had, 
and  still  the  State  comes  in  and  says,  "I  will  pay  half  of  the  salary  of  your  corporation 
judge."  That  does  not  appear  to  be  fair.  The  same  thing  applies  to  the  cities  of 
Petersburg,  Danville  and  Lynchbtirg  and  other  cities  of  that  class.  While  yoti  have 
deprived  the  counties  of  one-half  of  their  court  facilities,  you  have  decreased  the  direct 
expense  to  them  about  $15,000  but  yoti  have  increased  the  indirect  expense  about  $4,000, 
and  there  is  nothing  fair  about  it.  AYe  are  Avilling  to  have  our  court  facilities  done 
away  with,  but  when  they  are  done  away  with  I  think  the  expense  of  it  ought  to  be 
done  away  with.  I  do  not  see  any  reason  why,  if  these  cities  of  from  10,000  to  30,000 
inhabitants  have  exactly  the  same  facilities  they  have  always  had,  they  should  ask  the: 
State  to  pay  one-half  of  the  expenses.    I  hope  the  amendment  will  be  adopted. 

Mr.  Meredith:  Mr.  President,  I  do  not  think  the  gentleman  has  seen  the  unfairness 
of  his  proposition.  Otherwise  I  do  not  believe  he  w^ould  have  contended  for  it.  Taking 
the  city  of  Richmond,  she  pays  one-seventh  of  the  taxes  of  the  State.  She  is  entitled 
to  court  facilities,  no  matter  whether  they  require  one,  two  or  three  judges. 

Mr.  Barbour:  If  the  gentleman  will  pardon  me  a  moment,  I  wish  to  call  his  atten- 
tion to  the  fact  that  she  pays  about  one-seventh  of  the  taxes,  as  he  says,  but  gets  about 
one-sixth  of  the  judges. 

Mr.  Meredith:    Four  out  of  forty  do  not  constitute  one-sixth. 

Now,  Mr.  President,  I  respectfully  submit  that  this  effort  to  draw  distinction  between 
cities  and  counties  by  talking  about  the  counties  having  given  up  their  court  facilities 
is  not  fair.  Does  the  gentleman  favor  the  circuit  court  system?  Why  does  he  say  he- 
gave  up  anything? 


1726  DEBATES  OF  THE  COXSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

You  speak  of  having  surrendered  something.  Did  you  not  surrender  it  for  the  pur- 
pose of  getting  what  you  believed  to  be  a  better  system?  And  has  it  not  been  given 
you?  It  has  been  given  you  as  far  as  we  have  been  able  to  give  it  to  you,  and  you  have 
gotten  a  better  system.  Now  let  us  see  as  to  the  cost.  You  say  the  counties  have  as- 
sumed the  burden.  Does  not  this  report  show  that  $22,000  has  been  saved  to  the  counties 
out  of  $47,000  that  they  have  been  in  the  habit  of  paying?  If  that  is  a  fact,  how  can 
you  say  you  are  being  subjected  to  an  expense  which  you  have  not  heretofore  had  to 
bear?  On  the  other  hand,  the  cities  save  $400.  That  is  the  total  of  the  saving  of 
the  cities.  If  you  take  into  consideration  what  the  city  of  Richmond  will  have  to  pay 
extra  there  is  not  a  dollar  saving  to  the  city.  You  save  50  per  cent,  of  what  you  used  to 
pay.    The  cities  do  not  save  over  $400,  under  the  most  Jiberal  estimate. 

Now,  you  say  these  cities  of  under  30,000  arfe  getting  more  than  they  did  before. 
Let  us  see.  They  used  to  have  the  circuit  court.  Who  paid  for  the  circuit  courts  hereto- 
fore? The  State.  Heretofore  they  had  a  city  court,  Wlio  paid  for  the  city  courts? 
They  paid  for  them.  Now,  what  do  you  do?  You  make  them  divide  both  salaries  be- 
tween them.  It  isi  just  as  long  as  it  is  broad.  Instead  of  each  paying  for  a  separate 
court,  they  both  pay  for  both  courts,  so  that  there  is  no  saving  tO'  the  cities. 

When  you  come  to  the  city  of  Richmond,  you  propose  to  throw  a  burden  upon  us  of 
three  courts.  You  propose  to  say  to  the  city  of  Richmond,  with  84,000  people,  paying 
one-seventh  of  the  taxes  of  the  State,  and  with  certainly  one-seventh  of  the  business  of  it, 
"Although  you  pay  that,  I  propose  to  make  you  pay  for  three  of  your  four  judges."  The 
judges  are  supposed  to  be  given  upon  the  theory  of  the  necessity  for  them.  You  give 
so  many  judges  according  to  the  necessity  of  the  business,  and  yet  when  you  come  to  a 
place  wfhere  you  see  the  necessity  for  it,  which  has  been  recognized  for  years,  you  say, 
"You  can  Kave  it,  but  I  am  going  to  make  you  pay  for  it."  Where  is  the  fairness  of  it? 
We  aye  sl  part  of  the  State.  You  talk  about  us  as  if  we  were  foreigners,  as  if  we  ought 
to  be  put  by  ourselves.  We  furnish  our  proportion  of  the  business  of  the  State  and  the 
prosperity  of  the  State.  I  submit  to  the  Convention  that  the  gentleman  did  not  see  the 
unfairness  of  the  proposition,  or  he  would  not  have  offered  it. 

Mr.  Flood:  Mr.  President,  I  simply  want  to  say  a  few  words  in  behalf  of  the  amend- 
ment offered  by  the  gentleman  from  Culpeper  (Mr.  Barbour).  I  have  never  undertaken 
in  my  life,  as  a  member  of  the  Legislature  or  otherwise,  to  draw  any  distinction  between 
the  cities  and  the  counties  of  the  State  of  Virginia,  or  to  array  the  one  against  the  other. 
I  do  not  propose  to  do  so  now,  but  I  do  believe,  and  that  belief  is  not  confined  to  me, 
but  is  widespread  all  over  the  Commonwealth,  that  the  counties  have  been  unfairly 
dealt  with  in  this  report,  and  that  the  cities  have  not  been  so  dealt  with. 

I  believe  the  people  of  Virginia  in  the  counties  were  willing  to  surrender  their  county 
courts  provided  there  was  a  considerable  saving  to  them  or  to  the  State  of  Virginia.  It 
had  been  held  out  to  them  that  there  would  be  a  saving  of  $50,000  or  $60,000,  but  when  they 
found  out  they  were  surrendering  a  court  which  satisfied  their  wants,  and  to  which  they 
were  much  attached,  and  were  saving  little  or  nothing  by  it,  the  sentiment  has  become 
widespread  that  this  committee  made  a  mistake  in  abolishing  the  county  courts. 

Now,  Mr.  President,  the  cities  will  have  exactly  the  same  court  facilities  fhey  have 
now.  This  report  does  not  propose  to  take  from  the  cities  any  of  their  courts.  Every 
city  in  the  Commonwealth  will  have  just  as  good  court  facilities  after  this  ordinance 
is  adopted  and  becomes  a  fundamental  law  of  this  land  as  it  has  to-day;  and  the  counties 
are  to  have  their  judiciary  reduced  by  about  ninety-five  judges.  You  leave  the  cities 
the  same  number  of  judges,  and  you  take  ninety-five  judges  from  the  counties. 

I  repeat,  the  counties  would  be  satisfied  with  that  if  they  were  saving  any  money 
by  it,  if  there  was  any  saving  to  them;  but  when  we  come  to  examine  the  figures  we  see 
that  the  saving  is  deminimis.  We  see  the  saving  is  not  sufficient  to  induce  the  people 
to  willingly  give  up  their  monthly  courts.  As  it  is  at  present,  Mr.  President,  the  cities 
pay  for  their  judges.    I  have  never  heard  any  complaint  from  the  cities. 

Mr.  Meredith:    The  city  of  Richmond  pays  for  the  hustings  court  $2,900.  The 


DEBATES  or  THE  C0y5IITUTI0XAL  COXYEXIIOX  OF  YIEGIXIA. 


1:2: 


State  pays  for  three  courts  liere  §2,300  apiece.  Under  the  present  system  we  assume 
a  burden  direct  of  SSOO  over  and  above  wliat  we  now  bear. 

^Ir,  Flood:    Tliat  applies  only  to  tlie  city  of  Rlclimond  and  tlie  city  of  Norfolk. 

Mr.  Meredith;  I  think  you  will  find  that  in  the  cities  that  had  the  circuit  court 
facilities  the  State  paid  for  those  facilities. 

Mr.  Flood:  Of  course.  The  State  pays  for  all  of  the  circuit  courts  now.  I  am 
talking  about  the  city  courts. 

The  State  has  paid  for  all  of  the  circuit  courts,  and  the  counties  have  never  been 
called  on  heretofore  to  contribute  from  their  treasuiw  to  pay  for  the  circuit  courts. 
They  have  paid  for  their  county  courts,  and  thej  ask  to  be  relieved  of  that  burden,  or 
some  of  them  did.  Some  were  opposed  to  it  in  the  first  instance,  and  have  been  opposed 
to  it  all  of  the  time;  but  they  would  have  acqiuiesced  in  the  abolition  of  these  courts  if 
they  were  to  be  relieved  of  any  burden.  When  you  take  their  county  courts  from  them 
you  take  their  monthly  term  from  them,  and  you  impose  a  burden  upon  them  to  pay  for 
the  circuit  judge  who  has  always  heretofore  been  paid  for  by  the  State. 

The  cities,  with  two  exceptions,  have  paid  for  their  judges  in  the  past.  They  pay 
for  their  judges  at  present,  and  I  see  no  reason  why  they  should  be  relieved  of  that 
burden  and  an  additional  burden  put  upon  the  counties.  For  this  reason,  Mr.  President, 
I  think  the  amendment  offered  by  the  gentleman  from  Culpeper  is  right.  I  do  not  know 
anything  that  this  Convention  has  done,  or  will  do,  that  is  going  to  give  such  dissatis- 
faction throughout  the  State  as  this  judiciary  report.  We  hear  the  rumbling  of  discon- 
tent coming  up  from  every  section  of  the  Commonwealth,  and  when  the  people  of  the 
State  realize  the  fact,  when  the  country  people  realize  the  fact,  that  their  courts  have 
been  taken  away  from  them,  that  ninety-five  of  their  judges  have  been  abolished,  and 
yet  they  have  not  been  relieved  of  the  burden  of  paying  for  judges,  the  discontent  will  be 
gi'eat  indeed. 

Mr.  Thorn:  Mr.  President,  it  seems  to  me  there  is  a  great  misconception  of  the 
attitude  of  this  question  before  the  Convention.  Under  the  old  judicial  system  of  the 
State  the  county  courts  were  paid'tof  entirely  by  the  counties,  and  the  city  courts,  with 
one  or  two  exceptions,  were  paid  for  by  the  cities.  Now  the  whole  of  this  jurisdiction, 
which  heretofore  was  exercised  by  the  county  court,  has,  by  the  present  article,  been 
conferred  upon  the  circuit  court,  and  the  counties  relieved  of  the  whole  cost  of  the 
county  court  system.  Being  relieved  of  that  amount,  it  was  nothing  but  a  fair  proposi- 
tion that  they  should  contribute  something  towards  the  cost  of  the  new  system,  which 
performed  the  service  for  them  of  both  the  circuit  court  and  the  county  court.  It  was 
supposed  that  to  divide  into  two  the  cost  under  the  new  system  would  be  fair,  the  result 
being  that  the  saving  to  the  counties  was  822,000  out  of  $47,000.  When  now  the  counties 
and'  the  city  together  in  equal  pay  for  the  new  judicial  system  of  the  counties,  it  is 
nothing  but  fair  that  the  judicial  system  of  the  cities  should  be  paid  for  one-half  by 
the  State  and  one-half  by  the  city.  In  other  words,  it  is  a  rule  of  equality,  applicable 
in  the  counties  and  in  the  cities,  ty  which  the  State  pays  for  one-half  of  the  judicial 
system  in  both  the  localities.  But  how  will  that  figure  out  in  actual  numbers,  Mr. 
President?  It  figirres  out  a  saving  to  the  counties  of  S22,000  and  a  saving  to  the  cities 
of  nothing. 

^Ir.  Flood:    Four  hundred  dollars. 

Mr.  Thorn:  It  may  be  ?iOO,  but  it  is  practically  nothing,  and  there  is  an  additional 
cost  to  the  cities  of  ST. 000. 

Mr.  Flood:  Is  it  not  trje  that  the  cities  will  have  just  as  many  judges  under  this 
provision  as  they  have  under  the  present  Constitution,  while  the  counties  will  lose  about 
ninety-five  judges? 

Mr,  Thorn:  It  is  true  that  under  the  proposed  system  there  would  be  as  many 
judges  as  there  are  now.  It  is  likewise  true  that  the  counties  will  lose  their  county 
judges.  But  wh:-'?  Because  the  cities  have  not  heretofore  had  any  judges  but  the  number 
neces=an.'  for  transacting  the  public  business;  whereas  there  was  a  universal  concession, 
or  if  not  universal,  an  overwhelming  concession,  that  there  were  too  many  judges  in  the 


1728 


i^EBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


counties,  and  that  the  county  court  system  could  go.  The  whole  complaint  in  reference 
to  the  judicial  system  of  this  State  has  been  to  the  county  court  feature.  There  has. 
been  no  complaint  of  the  judicial  system  of  the  cities. 

Mr,  Green:  I  understand  it  is  necessary  to  make  a  motion  to-day  to  reconsider  a 
vote  passed  yesterday.  I  wish  to  ask  the  Convention  to  reconsider  the  vote  by  which 
the  fifth  section  of  this  report  was  adopted.  I  will  say  that  I  voted  for  the  section,  and 
I  expect  to  vote  for  the  section  again.  I  have  not  changed  my  own  opinion  on  that  sub- 
ject, but  I  know  there  are  gentlemen  absent  who  are  very  much  interested  in  the  question. 
They  are  necessarily  absent,  but  they  desired  to  be  heard  on  it,  and  I  ask  the  Convention,^ 
therefore,  to^  allow  me  to  submit  my  m-otion,  and  allow  it  to  lie  over  until  to-morrow. 

On  motion  of  Mr.  Portloek,  the  Convention  adjourned  until  to-morrow,  Wednesday, 
January  8,  1902,  at  10  o'clock  A.  M. 


WEDNESDAY,  January  8,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

The  President:  The  business  before  the  Convention  is  the  report  of  the  Committee 
on  the  Judiciary,  and  the  pending  proposition  is  the  amendment  of  the  gentleman  from 
Culpeper  (Mr.  Barbour)  to  Section  17,  on  which  the  gentleman  from  Norfolk  City  (Mr. 
Thorn)  has  the  floor. 

Mr.  Thorn:  When  the  Convention  adjourned  on  yesterday  I  was  calling  attention  to 
the  fact  that  the  whole  jurisdiction  of  the  court  in  the  county  is  now  performed  by  the 
circuit  court;  that  heretofore  that  jurisdiction  was  divided  between  the  circuit  court 
and  the  county  court;  that  under  the  conditions  which  then  existed  the  county  paid  the 
whole  cost  of  the  county  court  system,  from  which  they  are  relieved  by  ha^ang  the  juris- 
diction concentrated  in  the  hands  of  one  system  of  courts,  and  it  was  that  fact  that  made 
it  proper  and  just  in  the  minds  of  the  committee  in  dividing  the  salaries  and  cost  of  the 
present  system  of  courts —  one-half  to  the  State  and  the  other  half  to  the  county.  I  also* 
called  the  attention  of  the  Convention  to  the  fact  that  this  had  resulted  in  a  saving  to 
the  county  treasuries  of  over  $22,000;  that  it  had  put  an  increased  cost  upon  the  Stat© 
of  between  $7,000  and  $8,000,  and  that  the  system  of  courts  for  the  cities  had  resulted 
simply  in  leaving,  in  roiind  numbers,  the  cost  to  the  cities  exactly  where  it  was  under  the 
laws  as  they  heretofore  existed.  So  that  all  the  saving  that  has  been  made  in  this  new 
system  of  courts  has  been  to  the  counties.  There  has  never  been  any  complaint  of  the 
system  of  courts  in  the  cities.  The  complaint  was  of  the  system  of  courts  in  the  counties, 
and  the  city  members  on  the  Judiciary  Committee  subordinated  their  own  views  as  to 
the  new  system  of  courts  to  the  views  of  the  county  members  in  order  that  they  might 
have  the  system  they  thought  best  for  the  people.  If  it  is  right  that  the  State  should 
pay  one-half  of  the  cost  of  the  courts  which  do  the  public  business  in  the  counties,  why 
is  it  not  right  that  the  State  should  pay  one-half  of  the  cost  of  the  courts  that  do  the 
public  business  of  the  cities?  It  is  not  only  right  as  a  system,  and  proper  and  just  in 
itself,  but  I  invite  the  attention  of  the  Convention  to  the  fact  that  when  we  take  the  con- 
tribution made  to  the  public  treasury  by  the  counties  and  by  the  cities  respectively  we 
find  that  the  net  amount  remaining  in  the  treasury  from  the  counties,  after  paying  back 
to  them  what  they  get  out  of  the  treasury,  is  only  a  fraction  over  $400,000  a  year,  while 
the  net  amount  remaining  in  the  public  treasury,  over  and  above  what  the  cities  get 
back  from  the  State,  is  $793,000  a  year. 

Where,  then,  is  the  justice  of  saying  to  the  cities,  notwithstanding  the  large 
contribution  they  make  to  the  public  treasury,  that  in  addition  to  that  they  should  pay 
the  whole  cost  of  the  judicial  system? 

I  cannot  believe,  for  one  instant,  that  any  such  proposition  will  find  favor  with  this 
Convention.    No  court  has  been  assigned  to  any  of  these  cities  except  those  which,  in 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  YIFvGINIA. 


1729 


the  judgment  of  their  representatives  and  of  the  committee,  are  properly  required  to  do 
the  public  business.  And  now  the  proposition  is  that  the  cities  shall  not  only  pay  about 
$400,000  more  into  the  State  treasury  than  the  counties  do,  net,  after  what  they  receive, 
but  that  in  addition  to  that  the  unjust  discrimination  shall  be  made  that  the  cities  shall 
pay  for  the  whole  cost  of  their  judicial  system,  and  that  the  counties  shall  pay  only  one- 
half  of  the  cost  of  their  judicial  system,  when  the  courts  in  both  places  are  simply  doing 
the  business  of  the  State  and  of  the  people. 

I  shall  not  detain  this  Convention  longer  by  discussing  the  question.  I  simply  lay 
those  facts  before  you.  I  appeal  to  the  Convention  against  the  spirit  of  enmity  and 
hostility  which  is  manifested  here  in  the  effort  on  the  part  of  some  gentlemen  to  make 
war  upon  the  cities  in  the  Commonwealth.  The  people  of.  the  cities  are  as  much  citizens 
as  are  the  people  of  the  country.  They  are  bearing  their  full  share  of  the  public  burden. 
In  my  own  city  of  Norfolk,  property  upon  its  main  street  is  paying  taxes  to  the  State 
upon  an  assessment  of  about  $700  per  front  foot.  How  does  that  compare  with  the 
cssessm-ent  in  the  country?  And  yet,  gentlemen,  v/here  has  there  been  a  city  man  upon 
the  iloor  of  this  Convention  who  has  risen  here  to  make  war  upon  the  country  communi- 
ties of  the  State? 

I  am  told  by  the  gentleman  from  the  city  of  Richmond  that  Richmond  contributes 
one-seventh  of  the  entire  revenue  of  the  State.  I  have  not  verified  these  figures,  but  I 
accept  his  statement  on  the  subject.  My  own  city  pays  into  the  State  treasury,  after  it 
gets  back  all  the  allowances  to  which  it  is  entitled  by  law,  over  $113,000;  and  notwith- 
staii.luig  this  high  assessment  upon  city  property,  notwithstanding  the  great  contributions 
that  they  are  making  to  the  treasury  of  the  State,  notwithstanding  the  large  share  of  the 
public  charge  that  they  are  already  bearing,  the  proposition  here  is  to  make  war  upon 
them  and  to  declare  that  they  are  not  entitled  to  the  same  rights  in  the  State  of  Vir^ 
ginia,  or  to  the  same  consideration  at  the  hands  of  its  representatives,  as  are  the  country 
communities.  I  appeal,  gentlemen,  against  the  injustice  of  any  such  position,  and  I  ask, 
and  I  must  say  with  some  confidence,  that  the  rights  of  the  cities  be  protected  by  your 
vote. 

Mr.  Barbour:  Mr.  President,  I  desire,  in  the  first  place,  to  disclaim,  as  a  representa- 
tive of  one  of  the  counties  of  the  State,  any  feeling  of  enmity  or  hostility  whatsoever  to 
the  cities.  I  have  as  much  regard,  as  mtich  respect,  for  the  cities  of  this  State  as  I  have 
for  the  counties,  but  when  I  see  proposed  a  system  by  which  grave  injustice  is  done  to 
the  people  I  represent,  I  then  claim  the  right  to  speak  for  my  people  upon  the  floor  of 
the  Convention. 

The  gentleman  from  Norfolk  has  stated  that  the  cities  of  the  State  under  the  present 
system  pay  into  the  treasury  the  same  that  they  have  always  paid.  The  gentleman  can- 
Qot  substantiate  that  statement  by  figures. 

Mr.  Thorn:  Mr.  President,  not  only  do  they  pay  as  much  as  they  have  heretofore 
paid,  but  I  believe  they  will  pay  more,  for  this  reason,  which  I  forgot  to  comment  tipon 
in  my  remarks  Where  there  is  in  a  city  not  a  large  business  for  the  circuit  court,  that 
matter  has  been  taken  into  consideration  in  the  formation  of  the  circuit,  and  the  small 
amount  of  business  that  the  circuit  court  will  do  in  the  cities  has  made  it  possible  for 
those  judges  to  allot  a  larger  portion  of  their  time  to  county  business;  and  notwith- 
standing the  fact  that  very  little  of  their  time  will  be  taken  up  in  the  cities,  the  cities 
still  have  to  pay  just  as  much  of  the  salaries  of  those  circuit  court  judges  as  the  counties 
do.  I  will  illustrate.  Suppose  it  is  only  necessary  for  a  circuit  court  to  be  held  in  some  of 
the  smaller  cities  of  this  State  for  one  week  twice  a  year;  that  matter  is  not  considered 
in  the  portion  of  the  salary  that  that  city  pays  to  the  circuit  judge,  but  the  city  pays 
just  as  much  of  that  circuit  court  judge's  salary  as  if  it  were  necessary  for  them  to  hold 
elever,  terms  a  year. 

Mr.  Barbour:  Now,  Mr.  President,  the  gentleman  stated  that  there  was  no  com- 
plaint on  the  part  of  the  cities  as  to  the  present  judiciary  system,  that  the  entire  com- 
ji'aint  came  from  the  counties,  and  that  the  reason  for  the  complaint  was  that  it  was 
regarded  as  an  expensive  system,  and  that  the  counties  were  willing  to  have  their  court 


1730 


DEBATES  OF  THE  OONSTITUTIOi^AL  CONVENTION  OF  VIRGINIA. 


facilities  cut  down,  but  it  was  with  the  hope  of  saving  money  thereby  to  the  counties  and 
not  with  the  expectation  of  saving  money  thereby  to  the  cities,  I  would  like  to  request 
gentlemen  of  the  Convention  to  follow  closely  the  figures  which  I  will  now  present  to 
them,  which  will  show  conclusively  that,  with  the  possible  exception  of  the  city  of 
Richmond  and  the  city  of  Norfolk,  every  city  in  this  State  will  save  money  and  save 
large  sums  of  money  under  the  proposed  system.  These  figures  are  taken  from  the 
official  documents  of  the  Convention.  It  appears  that  under  the  present  system  the  city 
of  Alexandria  pays  $1,400  a  year  for  its  corporation  judge.  Under  the  new  system  they 
increase  the  salary  of  their  corporation  judge  so  that  instead  of  getting  a  $1,400  man  as 
heretofore  they  will  now  get  a  $2,000  man,  and  at  the  same  time  they  will  only  pay 
$1,000  of  his  salary,  and  they  will  pay  fifteen  per  cent,  of  one  half  of  the  salary  of  the 
circuit  judge,  which  will  be  $150,  making  the  total  cost  of  the  court  of  Alexandria  $1,150, 
a  net  saving  of  $250  tO'  them,  notwithstanding  the  fact  that  the  salary  of  that  judge  is 
increased  $600. 

Mr.  Meredith:  Is  it  not  true  that  you  propose  now  to  do  what  never  has  been  done — 
that  the  city  judge  shall  be  at  the  call  of  the  Governor  to  go  out  into  the  counties  and 
hold  court? 

Mr.  Barbour:    Yes,  sir. 

Mr.  Meredith:    And  that  the  city  courts  have  never  had  that  power  before. 

Mr.  Barbour:  They  provide  that  if  the  circuit  judges  in  the  counties  are  nearly 
worked  to  death,  you  may  then  call  on  the  curled  darlings  of  the  cities  to  come  and  help 
them.  That  is  what  it  amounts  to.  Again,  the  city  of  Portsmouth  at  present  pays 
$1,800  for  a  corporation  judge.  Under  the  proposed  system  they  will  pay  $1,000  of  his 
salary,  whioji  will  be  increased  to  $2,000,  and  pay  $210,  twenty-one  per  cent,  of  the 
salary  of  the  circuit  judge  of  that  circuit,  making  $1,210  total  cost  to  the  city  of  Ports- 
mouth, and  a  net  saving  of  $590.  That  is  where  they  are  paying  the  same  they  have 
always  paid. 

The  city  of  Petersburg  at  present  pays  $2,500  to  its  corporation  judge.  Under  the 
proposed  system  the  city  would  pay  $1,000  of  the  salary  of  the  corporation  judge  and 
twenty-five  per  cent,  of  the  $1,000  that  the  circuit  will  have  to  pay  to  the  circuit  judge, 
making  $1,200  that  Petersburg  will  have  to  pay,  thereby  saving  to  the  people  of  Peters- 
burg $1,250.  But  if  they  keep  the  salary  of  the  corporation  judge  up  to  the  point  now 
provided  for  by  law  and  still  continue  to  pay  $2,500  there  will  be  a  net  saving  of  $750 
to  the  city  of  Petersburg  alone.  Are  they  paying  the  same  they  have  always  paid?  The 
city  of  Danville  has  always  paid  its  corporation  judge  $2,000.  Under  the  proposed 
system  they  would  pay  $1,000  and  thirteen  per  cent,  of  the  $1,000  which  the  counties 
would  have  to  pay  to  a  circuit  judge  of  the  circuit  in  which  the  city  is  located. 

Mr.  Meredith:    Take  you  own  county.    You  pay  your  judge  $500,  do  you  not? 

Mr.  Barbour:    Yes,  sir. 

Mr.  Meredith:  You  will  have  to  pay  under  this  system  $133.  You  recognize  that 
you  get  a  better  system,  and  you  save  $367  out  of  $500.  Then  have  you  any  right  to 
complain? 

Mr.  Barbour:  Yes,  sir;  I  have  a  right  to  complain.  What  right  have  these  cities, 
when  they  are  not  doing  away  with  their  court  facilities,  to  come  in  and  kindly  consent 
to  divide  with  them  what  we  save?  That  is  what  they  are  doing.  They  are  getting 
the  same  facilities  that  they  have  always  had  and  then  they  say,  "It  is  true  you  are 
cutting  down  expenses,  but  we  will  divide  the  saving  with  you."  In  my  own  county  we 
have  at  present  three  terms  of  the  circuit  court  a  year,  three  terms  of  court  for  the  trial 
of  civil  cases,  and  I  say  that  it  is  impossible  for  us  to  get  those  facilities  under  the  pro- 
posed system.  We  could  get  along  under  the  new  system  but  we  cannot  get  along  as 
conveniently  as  we  have  heretofore  gotten  alouig.  I  hear  a  gentleman  say  near  me  that 
we  get  double  that  many  terms.  We  do  not  get  double  that  many  terms  for  the  ex- 
clusive trial  of  civil  cases. 

Mr.  Hunton:  If  the  gentleman  will  allow  me,  what  I  said  was  that  you  get  double 
the  number  of  terms  for  the  disposition  of  civil  business  that  you  had  before. 


DEBATES  OE  THE  COXSTITUTIO>s^AL  COXYEXTIOX  OE  VIRGINIA. 


1731 


And  it  lias  been  one  of  the  advantages  of  the  new  system  which  one  of  the  gentlemen 
from  the  country  has  said  induced  him  to  accept  it,  though  he  was  opposed  to  many  other 
features  of  it, 

Mr.  Barbour:  Heretofore  v,'e  haA^e  had  three  terms  of  the  circuit  court  and  twelve 
terms  of  the  county  court,  making  fifteen  terms  of  court  a  year,  and  hereafter  we  cannot 
get  over  six  terms. 

Novr,  the  city  of  Danville  has  all  along  been  paying  $2,000  to  its  corporation  judge. 
Under  the  proposed  system  they  will  pay  $1,000  only  of  that  salary,  and  pay  $130  towards 
the  salary  of  the  circuit  judge,  making  $1,130,  their  total  cost,  a  net  saving  of  $870  to 
the  tax-payers  of  Danville. 

Lynchburg  has  been  paying  $2,700  to  its  corporation  judge.  It  would  under  the  new 
system  pay  sixteen  per  cent,  of  the  salary  of  the  circuit  judge,  $160,  and  $1,000  towards 
the  salary  of  the  corporation  judge,  making  $1,160,  and  a  saving  of  $1,620  to  the  tax- 
payers of  Lynchburg,  Or,  if  they  kept  the  salary  at  $2,700,  which  is  paid  at  present, 
it  would  be  about  $920.  Newport  News  in  the  same  way  would  save  $1,545.  It  pays 
at  present  $2,775.  Under  the  proposed  system  it  would  pay  $1,000  to  the  corporation 
judge  and  $230  to  the  circuit  judge,  making  $1,230,  a  net  saving  of  $1,545  to  the  city  of 
Newport  News  alone.  . 

Roanoke  at  present  pays  its  corporation  judge  $1,800.  Under  the  proposed  system 
they  would  pay  their  judge  $1,000  of  his  salary.  The  State  would  pay  the  balance, 
and  they  contribute  $220  to  the  salary  of  the  circuit  judge  for  that  circuit.  In  their 
case  they  get  the  salary  of  thelj'  judges  raised  $200,  and  at  the  same  time  save  $580  to 
the  tax-payers  of  the  city  of  Roanoke. 

Those  seven  cities  save  to  their  tax-payers  $6,705.  The  city  of  Norfolk  at  present 
contributes  $3,083  to  the  salaries  of  the  judges.  Under  the  proposed  system  they  would 
only  have  to  pay  $2,440,  a  net  saving  of  $643,  if  they  kept  the  salaries  at  $2,000.  I 
presume,  however,  they  will  keep  those  salaries  at  the  present  figures,  and  I  did  not  have 
the  information  upon  which  to  state  what  the  additional  cost  of  it  would  be.  I  suppose 
it  would  be  something  the  same  as  the  case  of  the  city  of  Richmond. 

Mr.  Brooke:  Are  you  basing  your  calculation  upon  the  salary  of  the  judges  of  Nor- 
folk city  at  $2,000  a  year? 

Mr.  Barbour:  Yes,  sir,  I  say  I  have  not  the  figures  now  showing  just  how  much 
is  paid  by  the  State. 

Mr.  Thom:    I  want  to  give  you  the  figures.    We  pay  $3,500  apiece. 

Mr.  Barbour:  Then  it  would  be  an  additional  cost  of  about  $700  to  the  city  of  Nor- 
folk. So  that  every  city  in  the  Commonwealth,  with  the  exception  of  the  city  of  Norfolk 
and  the  city  of  Richmond,  saves  money,  and  seven  of  them  save  $6,705,  Still  the  repre- 
sentatives of  the  cities  say  that  we  are  actuated  in  this  matter  by  feelings  of  hostility 
towards  the  cities,  when  they  have  everything  that  they  ever  had  and  all  we  are  asking 
is  that  we  may  ourselves  receive  the  benefit  of  the  sacrifices  which  we  are  making. 

There  are  nine  of  these  cities,  Mr.  President,  with  populations  of  from  10,000  inhabi- 
tants up,  and  of  those  nine  cities,  six,  I  think,  have  representatives  upon  the  Judiciary 
Committee.  Is  it  remarkable  that  they  have  protected  the  interests  of  their  cities?  I 
do  not  think  it  is.  It  is  natural  for  them  to  do  so,  and  I  think  there  was  nothing  wrong 
about  it.  These  gentlemen  all  thought  that  they  were  doing  right,  but  they  seem  to  have 
lost  sight  of  the  fact  that  the  saving  by  this  system  has  been  brought  about  by  sacrifice 
on  the  part  of  the  counties.  I  insist  that  if  we  have  to  make  these  sacrifices  the  people 
of  the  counties  are  entitled  to  the  benefit,  and  I  think  the  amendment  which  I  have 
offered  should  be  adopted. 

Mr.  Robertson:  Does  not  your  argument  go  to  show  that  the  counties  have  made  an 
unnecessary  and  foolish  sacrifice  of  their  interests,  and  that  the  cities  are  getting  more 
than  they  ought  to  ,get? 

Mr,  Barbour:    Yes;  and  the  cities  have  gotten  the  benefit  of  our  sacrifices. 

Mr,  George  K,  Anderson:  Mr.  President,  I  should  not  take  up  the  time  of  the  Con- 
vention with  the  remarks  which  I  desire  to  submit  upon  the  subject,  but  for  the  fact  that 


1732 


DEBATES  OE  THE  CO^'STITUTIONAL  CONVENTION  OE  VIRGINIA. 


on  yesterday  my  friend  from  Appomattox  (Mr.  Flood),  whom  I  do  not  now  see  in  his 
seat,  used  language  under  which  I  am  unwilling  to  sit  silent.  In  speaking  of  the  proposed 
change  in  the  judicial  system,  he  used  this  language: 

I  do  believe,  and  that  belief  is  not  confined  to  me,  but  is  widespread  all  over  the 
Commonwealth,  that  the  counties  have  been  unfairly  dealt  with  in  this  respect  and  that 
the  cities  have  not  been  so  dealt  with. 

And,  again,  further  on  in  his  remarks,  he  said: 

We  see  the  saving  is  not  sufficient  to  induce  the  people  to  willingly  give  up  their 
monthly  court. 

Now,  Mr.  President,  if  we  have  been  in  this  Convention  for  seven  months  and  have 
allowed  a  report  to  come  into  this  body  and  be  adopted  in  Committee  of  the  Whole  which, 
in  its  operation,  deals  unfairly  with  the  counties,  and  discriminates  against  the  counties 
in  favor  of  the  cities,  it  must  be  attributed,  sir,  to  one  of  two  causes.  Either  we  are 
densely  ignorant,  or  we  have  been  culpably  negligent  in  the  performance  of  the  duty 
which  we  owe  to  our  respective  constituencies. 

I  am  not  willing  to  admit  that  either  proposition  is  true.  I  have  been  in  favor,  Mr. 
President,  of  a  change  in  our  judicial  system  for  a  long  time.  I  know  that  I  could  not, 
even  with  great  preparation,  interest  this  body,  and  of  course  in  the  reading  of  statistics 
I  must  necessarily  be  less  interesting;  but  I  purpose  giving  you  gentlemen  some  figures 
which  I  believe  will  show  you  that  the  counties  in  the  Commonwealth  have  not  been 
discriminated  against,  but  that  the  counties  will  be  inestimably  benefited  from  a  financial 
standpoint  as  well  as  from  every  other  view. 

Mr.  President,  I  have  taken  up  several  of  the  circuits  at  random.  When  the  gentle- 
man from  Appomattox  (Mr.  Flood)  stated  upon  this  floor  that  the  counties  had  been 
discriminated  against,  my  mind  naturally  reverted  to  my  own  constituency  and  I  asked 
myself  "How  can  I  justify  any  vote  which  I  may  make  on  this  floor  when  I  go  back  to' 
my  people  and  say  there  is  nothing  saved  in  taking  our  courts  away?" 

I  find,  in  reference  to  the  nineteenth  circuit,  composed  of  the  counties  of  Highland, 
Bath,  Alleghany,  Craig  and  Botetourt,  that  those  counties  now  pay,  for  county  courts 
alone,  $1,956.20.  Their  contribution  to  the  salary  of  the  judge  of  the  circuit  court  of 
that  circuit  would  be  $1,000,  thereby  making  a  saving  of  $956.20.  The  county  of  Alle- 
ghany pays  $700  to  a  county  judge.  Under  the  proposed  plan  she  would  pay  $320  to- 
wards the  salary  of  the  circuit  judge,  and  thereby  save  to  that  county  $370.  And  the 
same  thing  is  true  through  the  whole  list.  As  a  matter  of  fact,  for  the  county  court  sys- 
tem to-day,  in  the  counties  composing  the  nineteenth  circuit,  we  are  paying  at  the  rate 
of  four  cents  per  capita,  and  under  the  proposed  plan  we  will  only  pay  at  the  rate  of 
two  cents  per  capita,  or  just  one-half  as  much ;  and  certainly  in  our  circuit  I  am  satisfied 
the  facilities  furnished  by  the  proposed  plan  will  be  fully  equal  to  the  courts  as  we  now 
have  them. 

Take  the  eighteenth  circuit,  composed  of  Augusta,  Rockbridge  and  Rockingham.  In 
that  circuit  the  aggregate  salaries  of  the  county  judges  of  the  three  counties  is  $2,332.40. 
Under  the  proposed  plan  Augusta  county  would  pay  tO'  the  circuit  judge  $369,  and  effect 
thereby  a  saving  of  $723  to  the  county  of  Augusta.  The  county  of  Rockbridge  would 
pay  $250  towards  the  salary  of  the  circuit  judge,  and  effect  a  saving  of  $290.  Rocking- 
ham would  pay  $380  to  her  circuit  judge,  and  effect  a  saving  of  $320. 

Those  three  counties  to-day,  sir,  are  paying  towards  the  salaries  of  the  county  judges 
at  the  rate  of  two  and  three-fifths  cents  per  capita,  and  under  the  proposed  plan  they 
would  pay  on©  and  one-fifth,  or  less  than  one-half  as  much.  Now  I  come  to  the  circuit 
in  which  the  county  of  Appomattox  is  located,  the  county  from  which  my  friend  (Mr. 
Flood)  comes,  and  under  th©  proposed  plan  the  saving  in  that  county  will  be  $946. 
Under  the  present  plan  the  people  in  those  counties  composing  that  circuit  now  pay 
over  three  cents  per  capita  for  county  courts  alone.    Under  the  proposed  plan  they  would 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


-I  ^  o  o 
1  i  OO 


pay  one  and  five-eights  cents — less  than  half  as  much.  And  yet  it  is  charged  that  there 
is  practically  no  saving  to  the  counties  under  the  proposed  plan. 

The  people  of  the  county  of  Culpeper,  from  which  my  distinguished  friend  (Mr. 
Barbour)  comes,  now  pay  three  and  one-half  cents  per  capita  for  county  judge's  salary 
alone,  under  the  proposed  plan  they  would  pay  one  and  one-half  cents  per  capita,  or  less 
than  half,  and  the  saving  in  his  whole  circuit  will  be  $1,363  under  this  system. 

:\Ir.  Barbour:  I  will  ask  the  gentleman  if  we  have  not  teen  paying  for  this  county 
court  that  we  do  not  need"? 

Mr.  George  K.  Anderson:    Certainly  you  have  been  paying  for  it. 

:Slr.  Barbour:  And  if  v^-e  do  not  need  that  we  certainly  should  be  entitled  to  the 
saving  when  it  is  taken  away. 

Mr.  George  K.  Anderson:  You  get  more  than  the  savings.  You  are  paying  now 
just  twice  as  much  as  you  will  pay  under  the  new  plan.  The  trouble  with  my  friend 
is  that. he  is  making  a  saving  himself  and  yet  is  kicking  up  a  fuss  because  the  cities 
are  saving  something,  too.  I  do  not  care  how  much  the  cities  of  the  Commonwealth 
save.    It  makes  no  difference  to  me. 

Mr.  Meredith:    All  the  cities  together  save  $400. 

^Ir.  George  K.  Anderson:  I  say  under  this  system  my  county  is  saving  money,  and 
if  the  city  of  Richmond  and  the  city  of  Norfolk  can  save  money  I  am  entirely  willing 
that  they  should  do  it. 

I  will  take  up  one  of  those  circuits,  under  the  new  arrangement,  which  includes  a 
city.  I  take  up  the  sixteenth  circuit — Fauquier,  Loudoun,  Prince  William,  Fairfax, 
Alexandria  and  the  city  of  Alexandria.  Under  the  present  arrangement  the  total 
salaries  paid  to  the  county  judges  alone  in  those  counties  aggregate  $2,762.  Under  the 
proposed  plan  they  will  pay  the  judge  in  the  circuit  court  $1,000,  and  save  thereby  $1,762. 

Mr.  R.  Walton  Moore.  I  will  say  to  the  gentleman  that  he  must  not  lose  sight 
of  the  fact,  and  it  is  a  fact  tliat  v  t  ought  never  to  lose  signt  of,  I  think,  that  whenever 
you  transfer  a  charge  from  a  locality  to  the  State  treasury  you  increase  the  contribution 
that  is  being  made  by  the  tax-payers  of  that  circuit. 

We  pay  a  net  revenue  into  the  State  treasury,  after  criminal  charges,  school  charges 
and  pensions  are  satisfied,  of  over  $80,000;  and  you  cannot  substitute  a  treasury  charge 
for  a  local  charge  without  increasing  the  burden  to  us  and  diminishing  the  opportunity 
of  the  General  Assembly  to  decrease  the  tax  rate. 

Mr.  George  K.  Anderson:  The  county  of  Fauquier  now  pays  $800  to  the  county 
judge  alone,  within  $200  of  the  quota  of  the  whole  district  to  the  salary  of  the  circuit 
judge.  Under  the  proposed  plan  that  county  will  pay  $24.5  towards  the  salary  of  the 
circuit  judge,  saving  thereby  $550  to  the  county  of  Fauquier.  The  county  of  Loudoun 
pays  $620  to  their  county  judge.  She  will  pay  $220  under  the  new  plan,  thereby  saving 
$400.  The  countj'  of  Fairfax,  represented  by  my  distinguished  friend,  now  pays  $442 
to  her  county  judge.  She  will  under  the  proposed  plan,  pay  $195  towards  the  salary 
of  the  circuit  judge,  saving  thereby  $247. 

But  this  is  the  point  to  which  I  wish  to  call  the  attention  of  the  body.  While  the 
city  of  Alexandria  apparently  saves  money,  and  actually  saves  money,  and  pays  less  for 
her  system  than  she  has  heretofore  paid,  still  the  city  of  Alexandria  will  pay  under  the 
proposed  plan  eight  cents  per  capita  for  her  judicial  circuit.  I  want  to  repeat  that.  The 
people  in  the  rural  districts  in  the  sixteenth  circuit  t^uU  pay  one  cent  per  capita  for  the 
service  of  their  judges  and  the  city  of  Alexandria  will  pay  eight  cents  per  capita.  Does 
that  look  like  discrimination  in  favor  of  the  cities? 

Take  another  circuit,  with  the  city  of  Danville  in  it.  The  total  saving  in  that  cir- 
cuit is  $1,460  under  the  proposed  plan.  The  people  in  that  circuit  under  the  proposed 
plan  will  pay  eight-tenths  of  one  cent  per  capita  for  their  judge's  services.  Under  the 
present  plan  they  pay  two  and  a  half  times  as  much  for  the  cotmty  court  alone;  and  in 
the  city  of  Danville,  while  there  is  apparently  a  saving,  the  people  of  that  city  pay  seven 
cents  per  capita  for  their  services  of  circuit  and  corporation  judge. 

'Mv.  Thornton:    If  that  is  true,  has  the  gentleman  heard  any  complaint  from  the 


173-1  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

section  of  the  State  to  which  he  has  just  alluded,  asking  that  this  change  be  made? 
On  the  contrary,  have  not  petitions  come  in  here  asking  that  they  have  monthly  terms  of 
courts  for  the  reason  that  they  do  not  believe  that  bi-monthly  terms  can  transact  all 
the  business? 

Mr.  George  K.  Anderson:  I  can  say  in  reply  to  my  friend  that  there  are  probably 
one  hundred  counties  in  this  (Commonwealth  and  one  hundred  county  courts  and  one 
hundred  members  of  the  Convention,  representing  the  people  who  are  interested  in. 
those  courts,  and  that  almost  unanimously  the  representatives  upon  this  floor  have  been 
in  favor  of  the  abolition  of  the  county  court  system.  If  any  petitions  have  come  here, 
they  have  been  from  probably  not  over  three  or  four  per  cent,  of  all  the  counties  in  the 
Commonwealth. 

Mr.  Thornton:  Is  the  gentleman  aware  of  the  fact  that  there  have  been  several 
petitions  from  the  counties — I  am  alluding  nov/  only  to  the  district  to  which  the  gentle- 
man Just  referred —  asking  that  they  have  a  monthly  term  of  the  county  court  under 
some  plan?  I  mean  the  old  eleventh  judicial  circuit,  the  one  you  were  mentioning  when 
I  interrupted  you? 

Under  the  present  system  Alexandria  city  has  a  corporation  judge,  and  she  pays 
his  salary  and  gets  the  entire  benefit  of  his  services.  She  also  has  a  circuit  judge,  who 
is  paid  by  the  State.  Every  county  has  the  services  of  a  county  judge,  whose  salary 
they  pay.  Under  the  proposed  plan  you  take  from  the  people,  against  their  protest, 
the  benefit  of  a  term  once  a  month,  and  yet  Alexandria  city  has  two  judges  there,  a 
circuit  judge  and  a  corporation  judge,  and  the  business  is  not  nearly  as  great  as  in  some 
individual  counties  composing  that  circuit.  That  is  the  complaint  that  the  people  in 
that  circuit  are  making.  They  dO'  not  care  how  many  judges  you  have  in  Alexandria. 
They  have  no  objection  whatever  to  the  number;  but  under  this  plan  the  people  com- 
plain that  you  take  from  them  the  benefit  of  having  a  monthly  term.  I  do  not  say  they 
want  a  judge  for  each  county,  but  they  do  want  monthly  terms  of  the  court,  and  that  is 
what  they  are  asking  at  the  hands  of  the  Convention. 

Mr.  George  K.  Anderson:    Does  my  friend  want  a  monthly  term  of  the  court? 

Mr.  Thornton:  Yes,  sir;  I  want  it  and  my  people  have  petitioned  almost  unani- 
mously for  it.  They  have  also  petitioned  in  the  county  represented  by  my  friend  from 
Fairfax,  I  understand,  and  also  in  Fauquier.  They  are  asking  for  monthly  terms;  not  for  a 
judge  for  every  county,  but  they  do  ask,  and  they  believe  it  is  necessary  in  order  to 
transact  the  business,  that  the  circuit  should  be  arranged  so-  that  we  can  have  monthly 
terms.  Under  the  present  arrangement  we  cannot  have  it.  You  have  given  us  five 
counties  and  a  city,  and  we  believe  under  the  present  system  we  cannot  have  it. 

Mr.  Pedigo:    Mr.  President,  if  it  is  in  order  I  desire  to  offer  an  amendment. 

In  Section  17,  line  9,  strike  out  all  after  "per  annum"  down  to  "city"  in  line  35, 
and  all  after  the  word  "treasury"  in  line  38  to  the  end  of  the  section.  The  section  will 
then  read: 

The  salaries  of  the  Judges  of  the  Supreme  Court  of  Appeals  shall  be  not  less  than 
$4,000  per  annum,  and  shall  be  paid  by  the  State.  The  salaries  of  the  judges  of  the 
circuit  courts  shall  be  not  less  than  $2,500  per  annum.  The  whole  of  the  aforesaid  sal- 
aries of  said  judges  shall  be  paid  out  of  the  State  treasury. 

Mr.  Harrison:    I  offer  the  following  substitute. 

Article  6  of  the  present  Constitution,  except  as  modified  as  follows,  in  Sections  9 
and  10: 

Sec.  9.  The  General  Assembly  at  its  first  session  after  the  adoption  of  this  Consti- 
tution shall  divide  the  State  into  not  more  than  fourteen  judicial  circuits,  equalizing  as 
far  as  may  be  the  work  among  the  various  circuits,  and  providing  uniform  salaries  for 
the  judges. 

Sec.  10.  The  General  Assembly  may  rearrange  said  circuits  or  any  of  them,  and 
increase  or  diminish  the  number  thereof  when  the  public  interests  require  at  the  end  of 
periods  of  eight  years. 

The  President:    The  gentleman  from  Alleghany  will  proceed. 


DEBATES  OF  THE  COXSTITUTIONAL  CONVEjSTTION"  OE  VIRGINIA. 


1735 


Mr.  George  K.  Anderson:  Mr.  President,  I  shall  conclude  what  I  have  to  say  upon 
this  subject  in  a  very  few  words. 

I  was  proceeding  to  state,  :\rr.  President,  that  the  gravamen  of  the  complaint  of 
my  friend  from  Culpeper  is  that  he  has  given  up  something  that  was  of  value  to  him. 
I  think  that  proposition  is  very  doubtful,  in  the  first  place.  He  says  that  he  has  gained 
something  in  dollars  and  cents,  and  he  is  unwilling  that  the  cities  should  not  give  up 
something  and  gain  something.  I  think  the  figures  that  I  have  submitted  to  you  show 
that  under  the  proposed  plan  the  counties  are  benefited  and  that  the  cities  are  benefited; 
and  if  this  Convention  can  make  a  Constitution  that  benefits  both  cities  and  counties 
it  will  have  done  a  good  work. 

Mr.  Hunton:  I  desire,  Mr.  President,  to  say  a  word  in  reference  to  this  question. 
With  reference  to  the  saving  to  the  counties  of  the  State  of  Virginia  under  the  pro- 
posed plan  of  judiciary-,  as  compared  with  the  existing  order  of  things,  it  will  appear 
by  the  report  of  the  Judiciary  Committee  there  is  a  saving  to  the  counties  of  the  State 
of  $22,244.16.  Those  figures  were  based  upon  the  salaries  of  the  circuit  court  judges 
fixed  at  $2,500  per  annum.  This  body,  in  its  wisdom,  has  fixed  those  salaries  at  $2,000 
per  annum,  instead  of  $2,500.  Giving  to  the  counties  their  proportion  of  that  saving, 
which  is  five-sixths,  it  will  make  a  saving  to  the  counties  in  dollars  and  cents  of  $32,- 
244.16,  the  saving  by  the-  reduction  of  the  salaries  of  the  circuit  judges  of  $500  in  the 
twenty-four  circuits.  Five-sixths  of  it  accrues  to  the  counties  and  makes  their  aggregate 
saving  $32,244.16. 

Now  turn  to  the  cities.  Their  saving  under  the  proposed  plan  is,  in  the  aggregate, 
$485,  the  cities  of  Norfolk  and  Richmond,  I  believe,  paying  more  under  the  new  system 
than  under  the  old  system.  Our  friend  is  in  error  in  saying  that  the  salaries  of  the 
city  judges  in  a  majority  of  the  cities  of  the  State  have  been  increased — Richmond  and 
Norfolk  pay  more  to  their  judges  under  the  new  system  than  under  the  old  system — 
upon  the  theory  that  they  will  keep  the  salary  of  their  judges  as  at  present.  In  the 
three  cities  of  Petersburg,  Newport  News  and  Lynchburg  the  salaries  proposed  by  this 
article  will  have  to  be  supplemented  by  those  cities  in  order  to  keep  them  at  what  they 
are  to-day.  That  leaves  of  the  ten  cities  of  over  10,000  inhabitants  but  five  in  which 
the  salaries:  of  their  judges  are  increased.  I  will  not  undertake  to  name  them,  but  there 
are  but  five  cities  in  which  the  salaries  of  the  judges  are  increased. 

The  members  of  the  Convention  will  remember,  Mr.  President,  that  the  right  to 
practice  law  has  been  taken  from  the  judges  of  those  cities,  it  being  the  concurrent  view, 
practically  with  unanimity,  that  it  is  unwise  to  leave  that  power  in  the  possession  of  the 
judge  who  is  upon  the  bench  trying  cases,  where  the  same  questions  are  daily  liable  to 
arise  that  he  has  the  day  before  probably  argued  as  counsel  in  a  case;  because  I  care 
not  how  high  he  is,  how  impartial  and  how  well-trained,  it  is  impossible  for  the  human 
mind  not  to  have  taken  on  bias  from  the  advocacy  of  the  positions  he  has  assumed. 
More  than  tha.t,  Mr.  PresideEt,  new  duties  are  imposed  upon  the  city  judges,  duties  that 
are  required  of  them  in  order  to  supplement  the  circuit  judges,  if  there  is  any  conges- 
tion of  business:  not  "curly-headed  city  judges. but  city  judges  who  are  capable  and 
able  and  who  are  paid  a  sufficient  salary  to  fill  the  highest  judicial  positions  in  the  State, 
and  who  by  their  intelligence  and  ability  will  save  more  to  the  Commonwealth  of  Vir- 
ginia, in  my  judgment,  than  can  be  saved  in  salaries  in  .dollars  and  cents. 

A  good  deal  has  been  said  about  petitions,  about  popular  sentiment,  and  I  was 
struck  with  the  statement  of  my  friend  from  Prince  William  (Mr.  Thornton),  for  whom 
my  affection  is  as  strong  as  my  respect,  that  his  appeal  was  not  for  the  monthly  terms 
for  the  county  of  Prince  William,  because  bi-monthly  terms  could  not  do  the  business  of 
the  county  of  Prince  William,  but  because,  as  I  understood  it,  of  a  desire  for  monthly 
terms.  As  to  popular  sentiment,  it  seems  to  me  that  this  but  revives  the  fight  that  has 
been  fought  over  time  and  time  again  upon  this  floor  for  monthly  terms  of  the  court, 
for  which  I  grant,  there  is  a  sentimental  desire  upon  the  part  of  some,  a  sentimental 
desire  which,  however,  in  my  judgment,  does  not  indicate  a  desire  of  the  people  for  any 
change  that  will  give  them  greater  efficiency  and  economy  in  the  administration  of  the 


1736 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


affairs  of  our  State;  but  I  say  that  question  has  been  passed  iipon  time  and  again,  and 
I  should  not  now  refer  tO'  it  except  that  the  circuit  which  I,  in  part,  represent  has  been 
referred  to  upon  that  subject.  I  do  not  undertake  to  speak  for  the  county  of  Fairfax 
or  the  county  of  Prince  William,  but  I  do  undertake  to  speak  for  the  county  of  Fauquier, 
where  the  public  press  has  stated  that  there  was  a  meeting,  the  object  of  which  was 
opposition  to  the  abolition  of  the  county  courts.  With  great  respect  to  the  gentlemen 
who  took  part  in  that  meeting  and  in  its  organization,  with  every  desire  to  represent 
their  views  fairly  and  completely,  I  recognize  in  the  gentlemen  most  active  in  getting 
up  that  meeting — and  nuost  naturally,  too^ — the  personal  friends  of  the  county  judge  of 
that  county. 

I  have  in  my  desk  a  petition  which  I  am  informed  is  in  favor  of  the  abolition  of  the 
county  courts  and  in  favor  of  the  judiciary  system  as  proposed  by  this  article;  a  petition 
addressed  to  the  two  representativeis  of  that  county  in  this  body,  signed  by  more  people, 
I  am  told,  than  were  in  attendance  upon  that  meeting.  I  have  received  a  number  of 
letters  from  other  citizens  of  that  county  in  the  same  line,  and  have  received  from 
another  end  of  the  county  a  letter  from  a  gentleman  stating  that  if  it  was  desired  a  peti- 
tion could  be  gotten  up  in  that  end,  which  in  his  judgment  would  be  signed  foT  four- 
fifths  of  the  property-owners  of  that  section  of  the  county,  in  favor  of  the  judiciary 
article  as  reported  by  the  committee,  in  preference  to  a  retention  of  the  county  courts 
and  in  favor  of  this  article  as  it  was. 

Mr.  President  and  gentlemen  of  the  Convention,  whatever  I  have  been  able  to  ac- 
complish in  life  has  come  from  the  generous  support  of  the  good  people  of  the  country 
of  Piedmont  Virginia,  and  if  I  were  false  to  them,  or  to  their  interests,  I  would  be  un- 
worthy of  the  name  of  man.  To  them  and  to  their  generous  support,  and  more  than  all, 
to  the  good,  true,  high  people  of  the  county  of  Fauquier,  who^  have  ever  been  generous 
and  kind  and  forbearing  with  me,  honoring  me  more  than  my  deserts,  and  standing  by 
me  with  a  fidelity  that  I  can  never  forget  to  my  dying  day,  I  owe  whatever  I  have  been 
able  to  do  in  life;  and  if  I  should  stand  upon  the  floor  of  this  Convention  and  advocate 
that  which  in  my  judgment  was  unjust  to  them  or  to  their  interests,  I  would  be  unworthy 
of  the  respect  of  good  and  true  men.  I  believe  this  report  has  done  full  justice  to  the 
counties  and  to  the  cities  of  the  Commonwealth  of  Virginia.  I  know  it  represents  the  view 
of  a  majority  of  the  county  people  of  the  State,  as  tO'  what  has  been  done  for  the  coun- 
ties, and  1  believe  it  represents  fairness  and  equality  and  justice  to  the  cities  of  the 
Commonwealth. 

It  has  been  stated  upon  the  floor  of  this  Convention  that  this  complaint  and  trouble, 
with  the  exception  of  a  few,  has  grown  out  of  a  limit  that  has  been  fixed  to  the  establish- 
ment of  new  circuits  in  the  State,  and  that  the  number  has  been  placed  too  high,  at 
50,000  instead  of  40,000,  for  the  creation  of  a  new  circuit.  I  speak  but  for  myself. 
It  may  be  that  that  limit  is  too  high.  That  limit  was  stricken  out  with  my  approbation 
and  without  my  dissent  in  Committee  of  the  Whole,  and  was  put  back  by  the  Committee 
of  the  Whole;  but  if  there  is  any  strength  in  the  impression  that  that  ties  the  hands 
of  the  Legislature  in  giving  tO'  the  counties  suflScient  judicial  facilities  under  the  pro- 
posed system,  should  it  work  a  hardship  I  shall  join  hands  with  them  gladly  in  recon- 
sidering that  action,  in  order  that  the  limit  may  be  reduced  from  50,000  to  40,000. 

I  do  trust  it  will  be  the  pleasure  and  the  will  of  the  Convention  to  vote  down  the 
resolution  of  my  friend  from  Culpeper  which  I  believe  does  an  injustice  to  a  large 
portion  of  the  State  of  Virginia.  It  cannot  be  right,  it  cannot  be  fair,  to  compel  the 
cities  of  this  Commonwealth  to  pay  the  entire  cost  of  their  judicial  system,  and  to 
divide  it  as  to  the  counties  of  the  State.  If  you  put  it  wholly  upon  the  cities,  it  would 
be  but  fair  and  right  to  put  it  wholly  upon  the  counties,  which  would  merely  put  that 
expense  upon  them  in  addition  to  the  tax  rate  that  they  are  now  paying  into  the 
treasury  of  the  State. 

I  regret  to  have  been  compelled  to  appear  for  a  second  time  upon  this  proposition. 

Mr.  Summers:  Mi:.  President  and  gentlemen  of  the  Convention,  I  will  not  detain 
you  but  a  moment.    I  agree  with  the  present  system.    I  consider  the  county  court 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTION  OF  VIEGINIA. 


1737 


system  as  an  issue  that  is  dead  and  past  forever,  and  it  will  never  be  resurrected;  but 
at  the  same  time  I  am  very  much  inclined,  unless  some  gentleman  answers  me  to  my 
satisfaction,  to  support  the  amendment  offered  by  the  gentleman  from  Culpeper  (Mr. 
Barbour).  My  reason  in  this:  We  must  notice  what  w^e  have  done  in  this  committee 
and  w^hat  will  be  done.  You  will  notice  that  cities  of  the  second-class  cannot  get  a  court 
unless  they  bear  their  own  expenses.  The  city  of  Bristol,  that  I  represent,  and  other 
cities  of  that  class,  have  to  bear  all  their  expenses.  ^A^iat  did  w^e  of  the  Judiciary  Com- 
mittee tell  them?  We  said:  "This  is  a  luxury.  If  you  want  it  you  have  got  to  pay  for 
it." 

Will  some  gentleman  answer  me  w-hen  a  good  thing  ceases  to  be  a  virtue? 

Mr.  Meredith:  Is  it  not  a  fact  that  the  majority  of  the  Judiciary  Committee 
thought  that  those  cities  ought  not  to  have  a  single  judiciary,  and  you  advocated  it  and 
earnestly  urged  that  we  should  let  it  be  done  at  their  expense? 

Mr.  Summers:  Certainly;  and  on  that  very  same  principle  I  act  here  to-day.  What 
is  fair  and  just  to  the  big  man  and  to  the  small  city  should  apply  to  the  mighty  and 
powerful.  Now,  let  me  ask  you  a  question.  Is  not  that  equity?  You  are  a  lawyer  of 
standing.  Is  not  that  equity?  If  it  applies  to  a  small  city,  why  not  apply  to  a  large 
one? 

Mr.  Meredith:  I  w^ill  answer  your  question.  It  was  thought  by  the  committee  that 
your  population  did  not  demand  it,  and  that  therefore  there  w^as  no  necessity  for  that 
judiciary  system  in  those  cities;  and  as  a  favor  you  came  and  asked  it,  saying  you 
would  pay  for  it.  Now,  w'hen  you  come  to  the  large  cities  it  is  a  necessity  and  not  a 
luxury,  and  they  stand  just  like  the  counties,  simply  asking  for  a  necessity.  Is  there 
no  distinction.? 

Mr.  Summers:  Yes,  sir;  but  you  do  not  carry  it  out.  AA%y  did  you  pay  for  half 
of  it? 

Mr.  Meredith:    Because  the  counties  pay  for  their  half. 

Mr.  Summers:  I  am  willing  to  pay  for  half  of  mine.  I  do  not  know  why  it  is  that 
the  city  of  Bristol  should  pay  all  of  her  expenses  and  the  city  of  Richmond  should  not 
pay  more  than  one-half.  I  do  not  want  it  to  go  down  to  posterity  that  we  on  the 
Judiciary  Committee  have  thrown  aside  ever^^  principle  of  equity  in  forming  our  Consti- 
tution. If  you  want  to  do  justice  to  the  small  cities,  if  that  is  a  proper  principle,  let  it 
apply  to  the  mighty  and  strong;  and  under  those  cirumstances,  unless  I  hear  some 
better  view  advanced  than  that  of  the  honorable  and  distinguished  gentleman  from 
Richmond  (Mr.  Meredith)  I  will  certainly  support  the  gentleman's  amendment. 

The  ayes  and  noes  w^ere  taken,  and  resulted,  ayes  22,  noes  59. 

Mr.  Barbour's  amendment  was  rejected. 

The  president:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Henry  (Mr.  Pedigo). 

The  amendment  was  rejected. 

Mr.  Portlock:  Mr.  President,  I  offer  the  following  resolution  as  an  addition  to 
Section  17  of  the  report  of  the  Committee  on  the  Judiciary. 

Nothing  herein  contained  shall  be  construed  to  prevent  the  General  Assembly  from 
permitting  any  county  in  the  State,  by  the  vote  of  its  board  of  supervisors,  to  increase, 
out  of  the  treasury  of  such  county,  the  salary  of  the  circuit  judge  having  jurisdiction 
over  such  county. 

Mr.  Portlock:  Mr.  President,  I  would  like  to  say  a  word  in  explanation  of  that 
amendment. 

The  report  of  the  Committee  on  the  Judiciary,  as  it  stands,  renders  null  and  void 
all  acts  of  the  Legislature  authorizing  counties  to  increase  the  salaries  of  the  present 
circuit  judges,  and  this,  amendment  has  reference  especially  to  that  condition  of  affairs. 
As  I  have  stated,  the  provisions  in  this  report  have  the  affect  of  annulling  the  acts  as 
they  now  stand,  relating  to  the  several  and  separate  counties  in  the  State,  giving  them 
authority  to  add  to  the  salaries  of  the  circuit  judges.  I  do  not  think  it  was  the  object 
110— Const.  Deb. 


1738  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

of  the  standing  Committee  on  the  Judiciary  to  bring  about  such  results  as  those.  There 
are  a  number  of  counties  in  the  several  circuits  in  the  State  to-day  which  have  deemed 
it  important  to  ask  the  Legislature  to  allow  them  to  supplement  the  salaries  of  the  cir- 
cuit judges  presiding  over  the  several  counties.  Such  is  the  case,  for  instance,  in  the 
first  judicial  circuit  of  Virginia.  "While  it  does  not  affect  the  county  which  I  represent 
here  in  this  Convention,  it  does  affect  one  of  the  counties  in  that  circuit,  which  espe- 
cially desired  to  supplement  the  salary  of  the  circuit  judge.  I  speak  of  the  present 
judge  of  the  first  judicial  circuit,  the  county  of  Nansemond.  That  county,  by  special 
act,  is  authorized  to  supplement  the  salary  of  the  judge  of  that  circuit,  and  the  board 
of  supervisors  of  Nansemond  county  have  for  several  years  past  been  adding  from  the 
county  treasury  of  that  county  to'  the  salary  of  the  judge  of  that  circuit.  The  amend- 
ment which  I  offer  has,  as  its  special  object,  the  retention  of  these  special  acts  affecting 
the  several  counties  in  whose  behalf  they  have  been  enacted. 

Now,  sir,  the  Liegislature  has  heretofore  authorized  a  number  of  counties  to  do 
thisi  for  the  very  best  of  reasons.  In  the  place,  as  the  matter  now  stands,  under  the 
present  system,  we  all  know  the  circuit  judges  are  paid  exceedingly  small  salaries, 
when  you  consider  the  ability,  the  standing  and  the  mental  calibre  of  the  judges  of  the 
circuit  courts  under  the  present  system;  and  in  order  to  obtain  the  services  of  efiicient 
ofiicers  upon  the  bench,  many  of  the  counties  in  the  State  have  thought  it  necessary, 
in  order  to  secure  the  talents  and  the  services  of  some  gentlem.an  who  would  prove 
acceptable  to  them,  as  their  circuit  judge,  to  ask  the  Legislature  to  allow  an  additional 
inducement  by  way  of  a  more  adequate  salary,  in  order  that  they,  might  secure  the 
services  of  that  particular  gentleman.  This  is  the  case  in  the  first  judicial  circuit,  and 
I  refer  to  this  as  an  illustration  of  the  reasons  for  sustaining  my  resolution.  The  gentle- 
man whO'  now  sits  upon  the  bench  of  that  circuit,  when  a  practitioner — and  by  the  way, 
he  v/as  a  former  partner  of  the  distinguished  President  of  this  Convention — stood  in  the 
forefront  and  at  the  head  of  the  bar  of  this  State.  His  ability  and  standing  as  a  lawyer, 
and  as  a  high  type  of  a  gentleman,  was  fully  recognized  by  the  people  of  the  district  in 
which  he  lived  and  practiced  his  profession,  and  they  felt  assured  that  he  would  render 
them  most  efficient  service  in  the  capacity  of  judge  of  their  circuit.  This  gentleman — 
I  refer  to  Hon.  Robert  R.  Prentiss — had  a  most  lucrative  and  extensive  practice.  He 
was  not  a  man  who  had  accumulated  a  fortune  by  any  means.  He  was  in  no'  position 
to  retire  from  active  life  and  business  pursuits.  The  people  of  that  district  knew  that 
he  could  not  afford  to  take  the  position  as  their  judicial  officer  on  the  circuit  bench,  to 
which  they  desired  to  call  him,  if  they  were  unable  to  supplement  the  salary  of  that 
position  as  provided  for  under  the  general  law.  They,  therefore,  applied  to  the  Legisla- 
ture and  obtained  the  consent  of  that  body  to  add  to  the  salary  of  the  judge  of  that  cir- 
cuit so  that  they  might  obtain  the  services  upon  the  bench  of  a  gentleman  who  would 
make,  as  he  has  made,  a  most  acceptable,  able  and  distinguished  jurist. 

Now,  sir,  so  much  for  the  laws  now  in  existence,  which  I  ask  this  Convention  may 
not  be  repealed  and  which  is  the  main  object  of  the  resolution  I  have  sent  to  the  desk. 
Such  special  enactments  affect  not  only  the  judge  of  the  circuit  to  which  I  have  alluded, 
but  also  several  other  circuits  in  the  same  manner. 

Under  the  new  system  it  will  work,  perhaps,  the  same  result.  It  is  true  that  the 
limit  has  been  fixed  at  $400  more  for  the  circuit  judges  under  the  new  system  than  under 
the  old  system;  but  I  would  say,  with  reference  to  that,  that  $2,000  would  scarcely  be  an 
inducement  in  many  cases  for  a  judge,  in  active  practice  and  business,  life,  to  give  up 
all  the  opportunities  of  his  profession,  all  the  prospects  of  a  lucrative  and  successful 
business  career,  in  order  that  he  might  receive  the  salary  of  $2,000  as  judge  of  a  circuit 
court.  If  these  reasons  have  existed  heretofore  under  the  old  system,  when  the  salary 
was  fixed  at  $1,600,  I  say  it  is  scarcely  less  reasonable  to  assume  that  it  will  be  neces- 
sary under  a  new  system  as  to  the  limit  of  the  salary  recently  fixed  by  this  report  of 
the  Judiciary  Committee. 

Then,  sir,  it  will  be  putting  the  counties  upon  the  same  footing  with  the  cities  in 
respect  to  the  salaries  of  their  judges.    No  restraint  is  placed  upon  the  cities.  They 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  'IRGIXIA. 


1T39 


hare  ihe  authority  under  this  report  to  supplement,  out  of  tlie  city  funds,  the  salary 
paid  by  the  State  to  their  judges ;  and  this  is  simply  a  request  that  the  s.ame  privileges 
and  powers  be  conferred  upon  the  counties  such  as  you  have  bestowed  upon  the  cities. 
I  presume  it  may  be  urged,  although  I  hope  it  will  not  be  by  any  member  of  this  body, 
whether  he  be  from  the  cities  or  from  the  counties,  that  the  boards  of  supervisors  are 
not  to  be  trusted  in  this  matter,  when  they  are  confronted,  as  it  may  be  urged  they  will 
be,  by  an  influential  judge  or  his  friends  to  increase  such  salary.  I  ask  if  the  same 
argument  would  not  apply  to  the  councils  of  the  cities.  Are  they  any  more  to  be  trusted 
in  the  matter  of  raising  or  adding  to  judges"  salaries  than  the  boards  of  supervisors 
in  the  counties  of  the  State?  If  they  are,  there  will  be  force  in  such  argtiments  on  the 
part  of  those  who  may  oppose  this  resolution.  If  the  counties  of  the  cities  are  not  more 
to  be  trusted,  are  not  more  honest,  are  not  more  beyond  corrupt  influences,  if  you  choose 
to  put  it  in  that  way,  than  the  boards  of  supervisors,  then  there  is  no  more  reason  why 
the  cities,  through  their  councils,  should  be  allowed  to  supplement  the  salaries  of  their 
judges  than  there  is  that  the  boards  of  supervisors,  under  special  enactments,  should  be 
entrusted  to  do  the  same  thing. 

In  all  justice  and  fairness,  let  me  ask  that  the  counties  in  this  one  minor  respect 
alone  be  put  upon  the  same  footing  with  the  cities.  That  is  the  effect  of  it.  I  do  not 
ask  that  you  do  anything  more  for  them  than  you  have  done  for  the  cities  under  this 
report:  but  I  do  ask  that  in  this  one  poor  isolated  case  at  least  you  give  to  the  counties 
the  same  rights  which  you  have  accorded  the  cities.  I  ask  that  you  make  this  one  con- 
cession in  favor  of  the  counties  in  order  that  they  may  feel  that  in  this  one  respect  at 
least  they  have  not  been  discriminated  against.  I  ask  this  more  particularly  in  behalf 
of  the  present  laws,  enacted  for  those  counties  which  desire  to  continue  to  supplement 
the  salaries  of  their  judges  and  as  they  are  now  doing,  than  for  any  other  reason;  but 
I  do  ask  it  for  another  reason,  that  the  same  inducements  may  be  offered  hereafter  by 
the  separate  counties  for  obtaining  the  services  on  the  judiciary  of  high,  able  and  effi- 
cient men — services  which  may  not  be  obtained  under  the  provisions  of  this  report  and 
by  the  Legislature  as  to  the  general  salaries  to  be  fixed  by  the  State.  I  say  we  can 
trust  the  Legislature  to  act  in  this  matter.  We  can  trust  the  councils  of  the  cities  to 
act  in  this  matter,  as  you  have  already  provided  in  this  report,  in  their  case,  and  we 
can  trust  the  boards  of  supervisors  of  the  counties  to  perform  similar  duties.  I  feel 
assured  that  it  must  be  admitted  that  the  boards  of  supervisors  are  as  competent,  honest 
and  efficient  in  the  discharge  of  their  official  duties  as  the  councils  of  the  cities.  I  ask 
you,  gentlemen,  in  all  seriousness,  not  to  interfere  with  the  existing  laws  on  this  subject. 
I  do  not  believe  this  report  contemplated  they  should  be  interfered  with,  in  the  matter 
of  supplementing  the  salaries  of  the  circuit  judges  under  the  present  system.  I  ask 
you  in  addition  to  that  to  place  the  counties  upon  the  same  footing  with  the  cities,  hy 
putting  them  in  a  position  to  secure  the  services  of  proper  men  and  desirable  men  for 
the  bench  of  their  circuits. 

I  submit  the  amendment  for  your  action,  and  I  can  but  hope  it  may  be  your  pleasure 
to  sustain  the  same. 

The  President:  The  Question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  XoiTolk  county  Olr.  Portlock). 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  5;  noes,  .56. 

The  President:  The  question  recurs  on  agreeing  to  Section  17,  as  read  by  the 
Secretary. 

Section  17  was  adopted. 

]\Ir.  Hunton:  Air.  President,  in  justice  to  those  gentlemen  who  think  the  figures 
fixed  in  Section  9,  -50,000,  are  too  high,  and  who  desire  to  reduce  it  to  40,000,  I  move 
to  reconsider  the  vote  by  which  Section  9  was  adopted. 

The  motion  to  reconsider  was  agreed  to. 

Air.  R.  Walton  Moore:  Mr.  President.  I  move  that  the  words  ■'■forty  thousand"  be 
-inserted  instead  of  "'■'fifty  thousand."' 


1740 


DEBATES  OE  THE  COXSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  Dimaway:    Mr.  President,  I  move  to  amend  the  pending  amendment  by  inserting 
"thirty-five"  instead  of  "forty."    I  shall  not  detain  the  Convention  by  any  argument. 
The  motion  of  Mr.  Moore  was  agreed  to,  while  that  of  Mr.  Dunaway  was  rejected. 
Mr.  Turnbull:    I  offer  the  following  amendment  to  Section  9. 

Amend  Section  9  by  adding  after  the  word  "Assembly"  in  line  14  the  following: 
"After  the  expiration  of  four  years  from  the  adoption  of  this  constitution." 
The  section  would  then  read. 

The  General  Assembly  after  the  expiration  of  four  years  from  the  adoption  of  this 
constitution  may  from  time  to  time  as  the  public  interests  may  require,  etc. 

The  President:    The  question  is  on  the  adoption  of  the  amendment. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  44;  noes,  38. 

The  amendment  was  agreed  to. 

On  motion  of  Mr.  Thorn  the  vote  was  reconsidered. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Brunswick  (Mr.  Turnbull.) 

The  ayes  and  noes  were  taken  and  resulted — ayes,  41;  noes,  41. 

The  amendment  was  rejected.  - 

Mr.  James  W.  Gordon:  I  move  to  amend  the  section  in  the  same  language  offered 
by  the  gentleman  from  Brunswick  (Mr.  Turnbull),  only  substituting  "two  years"  for 
"  four  years." 

Add  after  the  word  "Assembly,"  in  line  14,  the  foPlowing:  "After  the  expiration  of 
two  yearsi  from  the  adoption  of  this  Constitution." 

The  ayes  and  noes  were  taken  and  resulted — ayes,  49;  noes,  33. 
The  amendment  was  agreed  to. 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  Section  9,  as 
amended. 

Section  9  was  adopted. 

Sections  18,  19,  20  ,21  and  22  were  read  and  adopted. 

Mr.  James  W.  Gordon:  Mr.  President,  I  now  offer  as  Section  23  of  the  report  we 
are  now  considering.  Section  23  as  originally  prepared  by  the  committee. 

Sec.  23.  The  number  and  jurisdiction  of  the  justices  of  the  peace  for  each  city  and 
county  shall  be  prescribed  by  law.  They  shall  be  appointed  by  the  judges  of  the  circuit 
courts  of  the  respective  cities  and  counties  of  the  Commonwealth,  except  in  cities  of  less 
than  ten  thousand  inhabitants  which  have  a  corporation  or  hustings  court.  In  such 
cities  they  shall  be  appointed  by  the  judges  of  said  corporation  or  hustings  court.  In 
cities  which  are  authorized  by  law  to  have  a  police  court,  the  police  justice  shall  be 
elected  as  may  be  prescribed  by  law.  Justices  of  the  peace  may  be  removed  in  the 
manner  prescribed  by  law. 

I  desire  to  offer  the  following  to  come  in  later,  at  the  end  of  that  section. 
The  Secretary  read  as  follows: 

They  shall  receive  a  salary  in  lieu  of  all  fees  in  criminal  cases. 

Mr.  President,  when  the  Committee  on  the  Judiciary  brought  in  their  report,  I 
understand  they  attempted  to  bring  in,  and  did  bring  in,  a  complete  report  of  the  judi- 
ciary department  of  government.  In  the  whole  history  of  the  Commonwealth,  as  I 
understand  it,  justices  of  the  peace  have  been  considered  a  part  of  the  judicial  system  of 
the  State,  and  they  are  such.  They  are,  under  our  present  law,  a  very  important  part 
of  the  system,  and  it  seems  to  me  eminently  fitting  that  justices  of  the  peace  should 
be  treated  in  this  article  of  the  Constitution. 

When  this  section  was  reached  in  Committee  of  the  Whole,  the  gentleman  from 
Nelson  (Mr.  B.  T.  Gordon)  moved  to  strike  it-  out.  I  understood  that  his  principle  objec- 
tion to  the  section,  as  reported  by  the  committee,  was  the  provision  made  for  the  choice 
of  justices  of  the  peace  or  their  appointment  by  the  circuit  courts.    I  knew  he  was 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1741 


very  mucli  in  favor  of  their  election  by  the  people.  Now,  that  question  aside — because 
I  do  not  think  it  has.  anything  to  do  with  this  important  point — it  seems  to  me  that  this 
is  the  proper  place  to  treat  the  question  of  justices  of  the  peace.  We  have  provided  in 
this  article  for  all  county  courts,  or  courts  for  counties,  and  courts  for  cities.  The 
report  of  the  Committee  on  County  Organization  and  Government  did  not  undertake  to 
establish  circuit  courts  for  the  counties.  The  report  of  the  Committee  on  Organization 
and  Government  of  Cities  and  Towns  will  not  undertake  to  report  a  system  of  courts 
for  the  Commonvrealth,  and  neither  should  they  be  called  upon  to  report  as  to  the 
justices  of  the  peace,  which  are  one  of  the  courts  in  the  system  of  judiciary  of  the  State. 

A'Mien  the  amendment  of  the  gentleman  from  Nelson  to  strike  out  this  section  was 
proposed  the  Committee  on  the  Judiciary  did  not  even  call  for  a  show  of  hands  on  the 
proposition.  Now,  whether  the  gentlemen  of  the  Convention  desire  that  these  justices 
should  be  elected  by  the  people  or  should  be  appointed  by  the  proper  authority,  they 
can  have  that  settled  right  here  now  by  offering  an  amendment  to  this  sction;  but  I  do 
ask  you  to  provide  in  this  article  on  the  judiciary  department  for  justices  of  the  peace, 
which  are  an  essential  part  of  our  judicial  system.  I  cannot  see  that  there  is  any  objec- 
tion to  it  at  all.  We  have  made  no  provision  in  the  county  organization  for  justices  of 
the  peace.  That  question  was  passed  over  there,  with  the  understanding  that  it  would 
be  settled  in  the  article  on  the  judiciary  department;  and  it  seems  to  me  that  the  gentle- 
men of  the  Judiciary  Committee  ought  to  be  willing  to  make  an  effort  to  have  their  own 
report  adopted  here,  or  to  let  it  go  through  with  such  amendments  as  may  appear  to  the 
Convention  to  be  proper. 

I  should  like  to  withdraw  the  last  clause  of  that  amendment  which  I  offered.  It 
seems  to  be  distasteful  to  some  of  the  members,  and  I  do  not  wish  the  principle  to  suffer. 

Mr.  Mcllwaine:  I  am  going  to  offer  an  amendment  which  will  strike  that.  I  move 
to  strike  out  all  after  "they  shall  be,"  in  the  fifth  line,  and  add  "elected  by  the  qualified 
voters  as  prescribed  by  law." 

^Alien  this  report  was  first  presented  to  the  Committee  of  the  Whole,  after  examina- 
tion I  stated  that  I  believed  it  was  the  best  report  that  had  yet  been  offered  to  the  Con- 
vention. I  think  so  to-day.  and  I  have  voted  for  it  continuously  up  to  this  point;  but 
I  do  think  it  would  be  a  radical  error  to  make  the  office  of  justice  of  the  peace  an  ap- 
pointive office.  Justices  of  the  peace  ought  to  be  elected  by  the  people.  If  the  people 
are  not  qualified  to  elect  them  from  among  their  own  number,  what  in  the  name  of  com- 
mon sense  are  they  qualified  to  vote  for?  Are  thej^  fit  to  vote  for  a  President  of  the 
United  States  or  for  a  Governor  of  the  State  of  Virginia,  if  they  are  not  fit  to  vote 
for  their  own  magistrates?  This  is  so  obvious  that  it  seems  to  me  to  need  no  argument. 
I  therefore  submit  the  question  to  you. 

Mr.  Meredith:  There  is  one  thing  I  wish  to  say,  Mr.  President,  speaking  for  the 
cities.  I  do  not  ask  that  this  power  of  appointment  be  given  to  the  judges  of  the 
circuits  in  the  counties,  because  there  seems  to  be  a  pretty  widespread  opinion  that  it 
ought  not  to  be  done,  although  there  are  some  who  favor  it;  but  when  you  come  to 
the  cities,  our  views  are  expressed  in  this  report,  unless  it  be  radically  wrong.  If  it 
be  simply  a  question  of  doubt,  we  ask  you  to  waive  it  in  our  favor.  I  have  conversed 
with  the  representatives  from  the  cities,  and  they  are  all,  so  far  as  I  am  able  to  tell,  in 
favor  of  the  justices  of  the  peace  in  cities  being  appointed  by  the  judges. 

Now,  what  is  the  result  of  this?  In  every  city  in  the  Commonwealth  you  will  find 
that  when  they  come  to  their  city  elections  they  have  a  long  list  of  names,  beginning 
at  the  mayor  and  running  through  the  several  officers.  In  some  instances  there  are  ten 
or  twelve  officers  to  be  elected.  Down  at  the  foot  of  the  list  there  come  the  names  of 
the  justices  of  the  peace  to  be  elected.  Time  and  time  again  in  the  precinct  in  which 
I  live,  which  is  a  precinct  in  which  there  is  as  much  wealth  as  there  is  anywhere  in  this 
city,  and  the  men  of  which  are  as  intelligent  as  any  class  of  men  in  the  city,  they  are 
ignorant  as  to  who  is  the  justice  of  the  peace,  and  do  not  care  who  he  is.  They  will 
simply  vote  for  any  person  that  anybody  asks  them  to  vote  for  without  caring  about  it. 
They  do  not  want  to  vote  for  justice  of  the  peace.  They  have  no  need  for  him.  They 
do  not  feel  any  pressure,  and  they  do  not  feel  any  desire  to  vote  for  him. 


1742 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


We  simply  ask  that  we  be  allowed  in  the  cities  of  the  Commonwealth  to  have  them 
appointed  by  the  judges  of  the  court.  In  the  counties,  where  they  pay  more  attention 
to  those  things,  I  am  perfectly  willing,  as  far  as  1  am  concerned,  to  permit  them  to  elect 
the  justices  of  the  peace;  but  we  do  ask  that  where  we  have  such  a  vicious  element  as 
you  always  have  in  crowded  cities —  • 

Mr.  Blair:    Do  you  object  to  putting  counties  in  there? 

Mr.  Meredith:  Personally  I  think  they  ought  to  be  appointed  in  the  counties,  but 
as  a  large  majority  of  the  Convention,  by  the  vote  that  was  taken  in  the  Committee  of 
the  Whole,  an  almost  unanimous  vote,  indicated  that  they  did  not  wish  it,  I  do  not 
propose  to  put  upon  them  what  they  do  not  v/ant;  but  I  am  simply  asking  that  we  be 
allowed,  as  to  the  justices  of  the  peace  in  the  cities,  to  have  them  appointed  by  the 
judges  of  the  court.  They  are  elected  in  some  sections  of  the  city  by  a  class  of  people 
who  ought  not  to  elect  them,  and  in  other  sections  of  the  city  they  are  elected  by  people 
who  do  not  care  three  straws  about  the  matter,  and  do  not  know  the  names  of  the  candi- 
dates, and  who  take  the  suggestion  of  anybody  in  w^hom  they  have  any  confidence  who 
happens  to  be  around  the  polling  place. 

Under  those  circumstancesi,  gentlemen,  recognizing  the  difference  in  the  class  of 
people  we  have  in  the  cities  from  those  in  the  counties,  we  ask  that  you  allow  us  to 
have  these  justices  of  the  peace  appointed  by  the  judges  so  that  we  will  get  a  better 
class  of  justices  of  the  peace  than  we  now  get. 

Mr.  Mcllwaine:  Mr.  President,  the  remarks  of  the  gentleman  bring  up  one  of  the 
vicious  features  of  the  legislation  proposed  in  the  Convention,  and  that  is  special  legisla- 
tion. Many  gentlemen  do  not  seem  tO'  apprehend  that  we  are  making  a  Constitution 
for  Virginia,  and  not  for  the  cities  or  the  counties. 

Now,  sir,  I  appreciate  the  trouble  of  w^hich  the  gentleman  speaks  in  Richmond,  and 
I  have  a  cure  for  that  trouble.  I  hold  that  no  Constitution  will  be  prepared  for  the 
State  which  fails  to  go  down  to  the  bottom  of  that  trouble.  My  cure  is  the  elimination 
from  the  electorate  of  this  vicious  vote  that  you  find  in  the  cities.  We  will  come  to  that 
pretty  soon  sir,  in  another  article  of  the  Constitution;  but  I  dO'  say  that  the  people 
ought  to  have  the  right  in  the  cities,  as  well  as  in  the  counties,  to  elect  their  m.agistrates. 
No  people  ought  to  be  allowed  to  vote  who  are  not  fit  to  vote  for  a  magistrate.  Why,  sir, 
the  people  will  forever  remain  careless  about  the  fundamental  principles  of  government 
if  they  are  not  brought  into  contact  v/ith  such  questions  as  these.  That  is  the  very 
prime  reason  why  I  think  they  ought  to  be  entitled  to  vote  for  more  of  their  ofiicers 
than  some  gentlemen  seem  inclined  to  give  them.  They  need  to  be  brought  into  sym- 
pathy, into  contact  and  into  educational  relations  with  all  of  these  conditions.  I  do 
hope  that  the  Convention  will  pass  a  general  law  empowering  the  people  in  the  cities, 
in  the  towns  and  in  the  counties  to  elect  these  officers. 

Mr.  Green:  Mr  President,  I  wish  to  announce  my  adherence  to  the  suggestion  of  the 
gentleman  from  Richmond  in  favor  of  the  appointment  of  justices  of  the  peace  in  the 
cities,  at  least,  by  the  judges  of  the  city  courts. 

It  is  perhaps  not  known  to  the  gentleman  from  the  cloister  (Mr.  Mcllwaine)  that 
the  justices  of  the  peace  have,  under  the  law,  the  duty  imposed  upon  them  of  making 
regular  reports  to  the  judges  of  the  corporation  courts  of  their  fines  and  their  duties. 
That  gives  the  judges  a  peculiar  opportunity  to  knov/  both  as  to  the  ability  and  the 
proper  performance  of  their  duty  of  these  officers.  I  do  not  think,  either,  that  the  gen- 
tleman realizes  the  fact  that  the  justice  of  the  peace  is  the  man  in  whom  the  leaders 
of  society,  the  men  of  wealth,  never  come  in  contact,  and  in  whom  they  feel  no  interest. 
If  he  is  anything  in  the  world,  he  is  the  guardian  of  the  interests  of  the  poorer  class  of  peo- 
ple. All  of  their  small  claims,  and  all  the  small  claims  against  them,  come  before  him.  He 
eminently  ought  to  be  a  man  of  the  strictest  sense  ot  justice,  of  intelligence  and  of  the 
highest  character.  He  ought  not  to  be  selected  by  any  ignorant  and  stupid  electorate. 
The  gentleman  may  conceive  that  he  has  a  plan  by  which  he  can  cure  and  purify  that 
electorate  in  Virginia,  but  it  is  a  Utopian  dream.  It  cannot  be  done  in  a  day,  nor  a 
month,   nor   a   year,   nor   a   series   of  years.    He  may   eliminate   the    stupid  and 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  YIEGINIA.  1743 


ignorant  white  man,  as  he  proposes  to  do,  to  a  certain  extent.  He  may  eliminate  the 
ignorant  and  stupid  negro,  but  the  virus  is  there  that  has  been  there  for  the  last  thirty 
years,  and  it  is  working  to-day  as  it  always  has  worked. 

The  people  in  the  cities,  as  the  gentleman  from  Richmond  (Mr.  Meredith)  has  said, 
have  ceased  to  take  any  interest  in  the  election  of  the  justices  of  the  peace.  The 
property  holders  in  the  city  know  he  can  never  touch  them,  and  that  they  can  never 
touch  him;  and  men  of  the  most  debased  character,  in  many  instances,  are  elected  by 
going  around  to  bar-rooms  and  other  disreputable  places  and  electioneering  and  carrying 
the  votes  at  the  election.  The  justices  of  the  peace,  of  all  men  in  the  State,  ought  to  be 
appointed  instead  of  being  elected.  It  is  for  the  protection  of  the  State;  it  is  for  the 
protection  of  the  people,  and  above  all  it  is  for  the  protection  of  the  common  people, 
the  poorer  people,  that  I  appeal  here  for  the  appointment  of  these  justices,  in  the  cities 
at  least.  If  I  had  my  way  I  would  have  them  appointed  in  the  counties  by  the  circuit 
court  judges.  I  have  voted,  and  I  would  vote  again,  for  the  appointment  of  the  justices 
of  the  peace  by  the  courts,  to  which  they  are  in  the  end  responsible,  and  who  will  have 
a  supervision  over  their  action. 

I  trust  that  whatever  may  have  been  the  action  of  the  Committee  of  the  ^Hiole, 
the  Convention  will  at  least  reverse  that  action  to  the  extent  of  adopting  the  amendment 
offered  by  the  gentlem-an  from  the  city  of  Richmond. 

Mr.  Meredith:  Mr.  President,  I  want  to  bring  this  to  an  issue,  sir.  I  offer  the 
following  amendment,  and  I  prefer  to  read  it,  if  you  will  allow  me.  I  ask  attention  to 
it  to  show  that  I  draw  a  distinction  between  the  counties  and  the  cities,  because  I  under- 
stand there  is  a  desire  that  that  should  be  done.  I  move  the  following  as  a  substitute 
or  amendment: 

The  number  and  jurisdiction  of  justices  of  the  peace  for  each  city  and  county  shall 
be  prescribed  by  law.  In  the  counties  they  shall  be  elected  by  the  people  as  may  be 
prescribed  by  law.  In  the  cities  they  shall  be  appointed  by  the  judges  of  the  hustings 
or  corporation  courts  of  the  respective  cities  of  the  Commonwealth.  In  cities  which  are 
authorized  by  law  to  have  a  police  court,  the  police  judge  shall  be  elected  as  may  be 
prescribed  by  law.  Justices  of  the  peace  may  be  removed  in  the  manner  prescribed  by 
law, 

Mr.  James  W.  Gordon:  Mr.  President,  before  the  vote  is  taken  I  have  several, 
remarks  I  would  like  to  make.  There  is  no  question  that  has  come  up  before  this  Con- 
vention in  which  I  feel  a  deeper  interest  than  I  do  in  this  one,  because  I  feel  it  is  one 
of  extreme  iniportance.  I  have  seen  the  abuses  under  which  we  have  labored  and 
suffered  under  the  present  system  of  election  of  justices  of  the  peace. 

The  gentleman  from  Prince  Edw^ard  (Mr.  Mcllwaine)  says  if  the  people  of  the  Com- 
monwealth are  not  qualified  to  elect  their  justices^  they  are  not  qualified  to  exercise  any 
function  at  all.  He  says  they  elect  the  President  of  the  United  States  ahd  the  Governor 
of  the  State,  and  their  other  ofiicers.  That  is  true,  but  he  himself  says  that  he  is  not 
in  favor  of  submitting  to  the  people  the  election  of  judges,  those  who  are  to  decide  their 
controversies  for  them,  and  he  does  not  favor  that  because  he  knows  it  is  a  dangerous 
thing  to  make  a  man  a  candidate  for  ofl^ce  before  those  whose  difficulties  and  con- 
troversies he  is  to  try. 

Now,  if  we  had  an  ideal  electorate,  if  we  could  purge  the  electorate  from  every 
vicious,  every  venal  feature,  and  if  we  could  have  every  man  giving  the  attention  which  he 
should  give,  to  his  public  duties  as  a  citizen,  I  admit,  we  could  safely  afford  to  leave, 
not  only  the  election  of  the  justices  of  the  peace,  but  of  the  judges  and  other  officers, 
to  the  people;  but  we  have  not  that  ideal  condition,  and  it  will  be  many  years,  if  ever, 
before  we  do  have  such  a  condition. 

Now,  what  is  the  result  as  to  these  justices  of  the  peace?  These  are  paid  no  salary 
and  little  or  nothing  in  the  way  -of  compensation.  They  do  receive  some  fees.  It  is 
almost  impossible  to  get  any  man  of  standing  to  run  before  the  people  and  make  a 
political  contest  for  the  office  of  justice  of  the  peace,  because  the  compensation  is  so 


1744 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


small.  As  to  the  higher  officers,  there  is  competition  for  them.  The  emoluments  and 
honors  of  the  office  attract  a  higher  grade  of  intelligence;  but  it  is  not  so  in  regard  to  the 
office  of  justice  of  the  peace.  The  practical  effect  of  this  system  is  shown  in  the  result, 
and  we  see  it  all  through  the  counties. 

Now,  I  do  not  know  how  it  is  in  many  of  the  distant  sections  of  the  State,  but  I  doi 
know  that  in  the  immediate  vicinity  of  Richmond  we  have  a  class  of  justices  of  the  peace 
who  are  a  disgrace  to  any  civilized  community.  Why,  gentlemen,  under  the  system 
which  we  have  adopted  and  have  in  operation  here,  I  have  seen  a  whole  crown  of  little 
boys  bathing  in  a  creek  down  here  in  Henrico  county  held  up  by  these  justices  and 
constables  and  fined,  in  order  to  get  the  fees  out  of  them.  There  is  the  constant  tempta- 
tion held  out  to  these  people  to  do  that  very  thing.  We  are  doing  an  awful  wrong  to 
the  poor  people  of  the  State,  when  we  allow  such  men  as  that  to  have  rule  over  them  and 
to  decide  their  controversies. 

Why,  just  contemplate  for  a  minute  the  power  we  place  in  the  hands  of  justices  of 
the  peace.  They  have  the  examination  into  a  large  part  of  the  offenses  that  are  alleged 
to  be  committed  and  unless  you  have  men  of  high  character  who  will  consider  the  facts 
that  are  presented  to  them  for  the  issuance  of  a  warrant,  unless  you  have  men  who  are 
above  the  mere  fifty  cents  they  get  for  the  warrant,  or  the  dollar  they  get  for  signing 
the  warrant,  you  will  have  a  perversion  of  justice  in  our  midst.  If  you  have  some  ap- 
pointing power  in  regard  to  justices  of  the  peace  you  will  have  a  much  higher  character 
of  men. 

There  was  a  time  when  men  like  George  Washington,  Esquire,  did  not  hesitate  to 
become  justices  of  the  peace;  but  you  do  not  find  that  character  of  men,  now,  I  believe, 
very  largely  holding  this  office.  Suppose  these  justices  of  the  peace  were  appointed 
by  the  Governor  and  commissioned  by  him.  Gentlemen  of  the  highest  standing  all  over 
the  Commonwealth  would  be  willing,  as  a  public  duty,  to  accept  this  office  and  discharge 
Its  duties. 

There  are  some  gentlemen  who  seem  to  think  there  isi  some  peculiar  virtue  in  any 
office  which  is  filled  by  election  of  the  people.  It  seems  to  me  that  the  criterion  should 
be  to-  get  the  best  men  to  fill  the  offices  of  government,  the  one  that  is  going  to  operate 
best  upon  the  rights  and  liberties  of  the  people,  and  I  do  not  hesitate  to  say,  and  I 
believe  it  can  be  demonstrated  to  any  fair-minded  man,  that  you  can  get  a  very  much 
higher  class  of  men  under  the  system  of  appointment  than  you  can  get  under  the  sys- 
tem of  election  by  the  people. 

I  do  trust,  as  has  been  urged  by  my  colleague  from  Richmond  (Mr.  Meredith)  and 
by  the  gentlemen  from  Danville  (Mr.  Green),  that  you  will  at  least  allow  us  in  the  cities 
to  have  the  justices  of  the  peace  appointed;  and  I  believe,  gentlemen,  that  if  you 
of  the  counties  were  just  willing  to  try  this  thing  you  would  never  go  back  to  a  system 
of  electing  your  justices  by  the  people,  as  you  have  done  for  the  last  few  years. 

Mr.  Barbour:  I  desire  to  ask  the  gentleman  from  Richmond  (Mr.  Meredith)  if 
he  will  permit  his  amendment  to  be  so  amended  as  to  include  the  tovms? 

Mr.  Meredith:  I  have  no  objection  to  including  anybody  who  wants  to  come  in. 
I  have  canvassed  the  gentlemen  who  represent  the  cities  and  they  are  in  favor  of  it. 

Mr.  Harrison:  I  have  the  honor,  Mr.  President,  to  represent  a  very  small  city  here, 
but  we  prefer  to  elect  the  justices  by  the  people  as  we  always  have  done. 

Mr.  B.  T.  Gordon:  Mr.  President,  when  this  question  was  before  the  Committee  of 
the  Whole,  I  moved  to  strike  out  this  section,  because  I  believed  I  represented  the  sense 
of  the  people.  I  believe  the  people  can  be  safely  trusted,  as  they  have  been  trusted  for 
the  past  fifty  years,  with  the  selection  of  these  officers.  I  do  not  believe  in  any  system 
of  the  judiciary  by  which  one  kind  of  court  can  be  appointed  by  a  higher  court.  If  you 
carry  out  this  principle  I  see  no  reason  why  the  Court  of  Appeals  shall  not  appoint 
all  of  the  circuit  judges  in  the  State  of  Virginia. 

Now,  and  I  speak  for  the  people  of  the  country,  it  is  immaterial  to  me  what  the 
gentlemen  representing  the  city  constituencies  may  elect  to  do  with  reference  to  their 
constituencies;  but  give  to  the  people  of  the  country  a  right  which  they  have  exercised. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTION  OF  VIRGINIA.  1745 

I  believe,  in  the  main  wisely  and  well,  for  fiftj^  years,  the  choice  of  thes,e  officers.  I 
know  it  is  a  habit  to  depreciate  and  run  them  down;  but  I  do  not  believe  that  they  are 
justly  liable  to  the  censure  that  has  been  heaped  upon  them.  I  believe  the  answer  to 
all  of  this  censure  and  abuse  is  to  be  found  in  the  acts  of  its  Legislature  itself. 

I  stated,  sir,  before  the  Committee  of  the  Whole,  and  I  repeat  now,  and  I  wish  toi 
emphasize  it,  that  years  ago  the  jurisdiction  of  these  officials  was  exceedingly  limited. 
I  believe  they  were  limited  in  civil  matters  to-  the  sum  of  $20.  Gradually  that  jurisdic- 
tion has  been  increased  until  to-day  they  are  clothed  with  the  trial  of  civil  cases 
involving  the  sum  of  $100.  Their  criminal  jurisdiction  has  been  increased  so  that  they 
have  in  many  cases  exclusive  jurisdiction,  and  in  most  cases  concurrent  jurisdiction 
with  the  trial  or  county  courts.  Under  the  administration  of  the  law  by  these  men  the 
criminal  expenses  have  been  vastly  reduced  in  the  State. 

That  is  an  answer,  sir,  to  all  the  charges  as  to  their  incompetency  and  their  cor- 
ruption. Moreover,  Mr.  President,  I  think  the  time  has  come,  and  we  might  as  well 
recognize  it,  when  the  great  mass  of  the  people  in  the  country  will  not  willingly  allow 
their  representatives  here  to  deny  to  them  the  right  which  they  enjoyed  for  the  last 
fifty  years.  There  is  too  much  of  a  tendency  sir,  to  curtail  the  rights,  and  to  stifle 
and  silence  the  voice  of  the  people,  in  the  privileges  of  their  servants  throughout  the 
State.  Any  step  in  that  "direction  will  be  resented,  and  I  believe  bitterly  resented,  by 
the  people  of  the  country.  They  have  in  the  main  exercised  this  right  wisely,  judiciously 
and  prudently  for  fifty  years  past,  and  I  believe  that  any  effort  now  made  to  take  away 
from  them  a  right  which  they  have  thus  exercised  will  be  resented  by  them,  and  that 
this  whole  scheme  of  constitutional  reform  will  fall  under  their  condemnation. 

I  therefore  hope,  sir,  speaking  for  my  people,  and  I  believe  speaking  for  the  country 
constituencies  generally,  that  the  Convention  will  allow  the  law  to  stand  as  it  is.  This 
matter  does  not,  I  believe,  properly  belong  to  the  judiciary  S3'stem  of  Lhe  State.  Under 
the  Coiistitation  of  1867,  and  I  believe  prior  to  That  time,  possibly,  it  was  apportioned 
to  the  article  on  the  organization  of  counties.  I  believe  it  belongs  there.  That  com- 
mittee has  unanimously  reported,  asi  I  am  informed,  in  favor  of  the  election  of  these 
officers  as  at  present.  I  hope  therefore  it  may  be  the  pleasure  of  the  Convention  to 
reject  the  amendment  offered  by  the  gentleman  from  Richmond  and  allow  the  law  to 
stand  as  it  is  to-day. 

The  President:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Prince  Edward. 

The  question  was  taken  by  ayes  and  noes,  and  the  result  was  announced  ayes.,  51; 
noes,  28. 

The  amendment  was  agreed  to. 

Mr.  James  W.  Gordon:  Mr.  President,  I  presume  it  is  now  in  order  to  offer  an 
amendment  to  the  original  section,  as  amended,  in  order  that  it  may  come  in  competi- 
tion with  the  substitute  of  my  colleague  from  Richmond  (Mr.  Meredith),  and  I  offer 
this: 

The  number,  jurisdiction  and  method  of  choice  and  removal  of  justices  of  the  peace 
for  each  county  and  city  shall  be  prescribed  by  law. 

Mr.  Lindsay:  We  have  just  decided  that  the  method  of  election  shall  be  by  the 
people,  and  it  seems  to  me  it  would  not  be  in  order  to  introduce  an  amendment  providing 
that  the  Legislature  shall  decide  how  the  magistrates  shall  be  elected. 

The  President:  The  Chair  thinks  the  point  of  order  well  taken.  The  question 
has  already  been  decided. 

The  amendment  of  the  gentleman  from  Norfolk  city  (Mr.  Thom)  is  an  amendment 
to  the  section  as  already  proposed.  The  question  is  on  agreeing  to  that  amendment, 
which  the  Secretary  will  read. 

Provided,  that  the  justices  of  the  peace  for  the  cities  of  the  first  class  may  be  elected 
or  appointed,  as  may  be  prescribed  by  law. 


1746 


DEBATES  OF  THE  C02s  STITUTIOXAL  CONVENTION  OE  VIRGINIA. 


Ttie  amendment  waa  adopted. 

The  President:  The  question  recurs  on  the  amendment  in  the  nature  of  a  substitute- 
offered  by  the  gentleman  from  Richmond  city  (Mr.  Meredith). 

The  Secretary:  The  amendment  to  the  report  as  submitted  by  the  member  from 
Richmond  (Mr.  Gordon)  is  as  follows  amended  by  several  amendments  offered: 

The  number  and  jurisdiction  of  the  justices  of  the  peace  for  each  city  and  county 
shall  be  prescribed  by  law.  They  shall  be  elected  by  qualified  voters  as  prescribed  by 
law,  provided  that  justices  of  the  peace  for  cities  of  the  first  class  may  be  elected  or 
appointed,  as  prescribed  by  law. 

The  substitute  proposed  by  the  member  from  Richmond  (Mr.  Meredith  is  as  follows: 

The  number  and  jurisdiction  of  the  justices  of  the  peace  for  each  city  and  county 
shall  be  prescribed  by  law.  In  the  counties  they  shall  be  elected  by  the  people,  as  may 
be  prescribed  by  law.  In  the  cities  they  shall  be  appointed  by  the  judges  of  the  hustings 
or  corporation  courts  of  the  respective  cities  of  the  Commonwealth.  In  cities  which  are 
authorized  by  law  to  have  a  police  court,  the  police  judge  shall  be  elected  as  may  be 
prescribed  by  law.  Justices  of  the  peace  may  be  removed  in  the  manner  prescribed 
by  law. 

Mr.  Braxton:  Mr.  President,  if  it  is  in  order  to  do  so,  I  move  that  there  be  inserted 
the  woTds,  "and  cities  of  the  second-class,"  after  the  word  "counties,"  in  the  amend- 
ment as  offered  by  the  gentleman  from  Richmond  (Mr.  Meredith).  I  understand  it 
provides  for  the  election  or  appointment  of  judges  in  counties  or  cities  of  the  first-class, 
but  that  there  is  no  provision  for  cities  of  the  second-class,  and  I  would  like  to  have 
cities  of  the  second-class  put  on  the  same  footing  as  the  counties  and  have  the  justices 
elected  by  the  people. 

Mr.  Meredith:    I  accept  that  amendment. 

Mr.  Barbour:  I  move  to  amend  the  substitute  of  the  gentlemen  from  Richmond 
(Mr.  Meredith)  by  inserting  the  words,  "and  towns,"  after  the  word  "cities,"  so  that 
it  will  read,  "in  cities  and  towns." 

The  amendment  was  rejected. 

Tlie  President:  The  Secretary  will  call  the  roll  on  the  substitute  proposed  by 
the  gentleman  from  Richmond  (Mr.  Meredith). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — 
ayes,  37;  noes,  42. 

The  substitute  was  rejected. 

Mr.  Barbour:    I  offer  the  following,  then,  as  a  substitute: 

The  General  Assembly  shall  provide  by  law  for  the  appointment  or  election  of  such 
justices  of  the  peace  as  the  public  interests  may  require  and  shall  prescribe  their  juris- 
diction. 

Mr.  Quarles:  On  this  question  I  am  paired  with  the  gentleman  from  Rappahan- 
nock (Mr.  Yancey).    If  he  were  present  he  would  vote  nay  and  I  should  vote  yea. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — 
ayes,  48;  noes,  30 — as  follows: 

Ayes — Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barbour,  Barham, 
Thomas  H.  Barnes,  Blair,  Boaz,  Braxton,  Brooke,  Brown,  Cameron,  Carter,  Cobb, 
Crism.ond,  Epes.,  Fairfax,  Fletcher,  Glass,  James  W.  Gordon,  R.  L.  Gordon,  Green, 
Gregory,  Gwyn,  Hamilton,  Hardy,  Hatton,  Hunton,  G.  W.  Jones,  Keezell,  Lawson,  Lincoln, 
Meredith,  Miller,  R.  Walton  Moore,  Parks,  Robertson,  Stebbins,  Tarry,  Thom,  Turnbull, 
Walker,  Watson,  Willis,  Wise,  Woodhouse,  and  the  President — ^^48. 

Noes — Messers.  M.  H.  Barnes,  Bouldin,  Bristow,  P.  W.  Campbell,  Dunaway,  Earman, 
Gilmore,  Gillespie,  B.  T.  Gordon,  Hancock,  Harrison,  Ingram,  Claggett  B.  Jones,  Kendall, 
Lindsay,  Lovell,  Marshall,  Mcllwaine,  Thomas  L  Moore,  Mundy,  Orr,  Pedigo,  Phillips, 
Quarles,  Richmond,  Rivers,  Summers,  Thornton,  Waddill,  and  Wescott — 30. 

Mr.  Barbour's  substitute  was  adopted.  I 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OP  YIRGIXIA. 


1U7 


The  President:    The  question  recurs  on  the  adoption  of  the  original  proposition 
as  amended  by  the  substitute  of  the  gentleman  from  Culpeper. 
The  amendment  was  agreed  to. 

On  motion  of  Mr.  Marshall  the  Convention  adjourned  until  to-morrow,  Thursday, 
January  9,  1902,  at  10  o  clock  A.  M. 


THURSDAY,  January  9,  1902. 

The  Convention  met  at  10  o, clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

The  President:  The  unfinished  business  is  the  report  of  the  Committee  on  the 
Judiciary. 

Mr.  Hunton:  The  unfinished  business,  I  believe,  was  the  motion  to  reconsider  Sec- 
tion 5.  I  withdraw  my  motion  to  lay  on  the  table,  and  shall  ask  that  the  motion  to 
reconsider  be  voted  down. 

The  ayes  and  noes  were  ordered,  and  having  been  taken,  the  result  was  announced — 
ayes,  39;  noes,  41. 

The  President:    The  question  is  on  the  motion  to  reconsider. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes,^ 
43;  noes,  3S. 

The  motion  to  reconsider  was  agreed  to. 

The  President:  The  question  recurs  on  the  motion  of  the  gentleman  from  Augusta 
(Mr.  Quarles)  to, reconsider  the  vote  which  the  amendment  offered  by  the  gentleman 
from  Richmond  (Mr.  Gordon)  was  rejected. 

The  question  having  been  taken  hj  ayes  and  noes,  the  result  was  announced — ayes, 
43;  noes,  36. 

The  motion  to  reconsider  was  agreed  to. 

The  President.  The  question  recurs  on  the  adoption  to  the  amendment  offered  hy 
the  gentleman  from  Richmond  city  (Mr.  Gordon)  providing  that  members  of  the  Supreme 
Court  of  Appeals  shall  be  elected  by  the  Legislature  on  the  nomination  of  the  Governor. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes^ 
32;  noes,  48. 

The  amendment  was  rejected. 

Mr.  Lindsay  offered  an  amendment  providing  for  the  election  of  judges  of  the 
Supreme  court  of  Appeals  in  a  manner  to  be  prescribed  by  law. 

Mr.  Barbour  proposed  as  a  substitute  that  they  be  chosen  by  the  General  Assembly 
on  the  nomination  of  the  Governor. 

Both  amendment  and  stibstitute  were  rejected — -the  latter  by  a  vote  of  40  to  43. 

Mr.  Summers:    I  offer  the  following  substitute  for  the  section: 

After  the  word  "the"  in  line  three,  insert  the  words  "the  Governor  shall  nominate 
eight  lawyers  of  recognized  standing,  from  which  the  General  Assembly  shall  elect  five 
judges." 

The  amendment  was  rejected. 

The  President:    The  question  recurs  on  agreeing  to  the  adoption  of  Section  5. 
Section  5  was  adopted. 

Mr.  Harrison:  Mr.  President,  I  desire  to  introduce  an  amendment  to  the  report 
at  the  end  of  Section  23,  making  it  Section  24. 

Sec.  24.  The  circuit  judge  of  each  circuit  shall  designate,  by  order  of  court  or  in  vaca- 
tion, entered  of  record  in  each  county  of  a  circuit,  one  of  the  commissioners  of  chancery 
for  the  circuit  court  of  said  county  as  bail  commissioner,  whose  duty  it  shall  be,  in  the 
absence  of  the  judge  from  said  county  or  in  his  inability  to  act,  to  hear  such  matters  of 
bail  as  may  be  prescribed  by  law.  An  appeal  may  lie  from  his  judgment  to  the  circuit 
court  of  said  county  or  to  the  judge  thereof  in  vacation. 


1748 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OE  VIRGINIA. 


Mr.  President,  I  have  shown  this  amendment  to  several  members  of  the  Judiciary 
Committee,  and  they  see  no  objection  to  it.  The  object  of  it  is  to  remove  one  of  the 
objections  to  the  proposed  system,  and  that  is  that  there  is  no  local  judge  in  a  county 
who  could  hear  questions  of  bail.  A  man  might  be  arrested,  for  instance,  in  a  county 
far  distant  from  the  judge  of  a  circuit,  and  he  would  have  no  means  of  applying  for  bail 
and  would  have  to  go  to  jail  or  be  otherwise  inconvenienced.  This  is  simply  to  auth- 
orize the  judge,  who  has  the  question  of  bail  before  him,  anyhow,  to  designate  one  of 
his  commissioners  in  each  county,  who  can  take  those  matters  into  consideration  while 
the  judge  is  absent,  or  when  he  cannot  hear  matters.  I  have  proposed  the  commissioners 
in  chancery  because  it  is  necessary  to  select  some  officer,  as  the  pay  attached  to  it 
would  be  insufficient  to  have  an  independent  officer  for  that  purpose  only.  Therefore 
I  have  selected,  as  the  best  substitute  I  know  of  the  commissioners  in  chancery,  to  have 
that  power. 

Mr.  Hunton:  Mr.  President,  I  am  thoroughly  in  sympathy  with  the  object  that  is 
sought  to  be  accomplished  by  the  amendment.  My  friend  will  pardon  me  lor  making 
a  statement  of  my  position.  He  has  shown  the  proposition  to  me,  but  in  the  confusion 
and  in  the  engrossment  of  other  duties,  I  was  unable  tO'  consider  it  carefully.  I  wish 
to  ask  the  gentleman  if  this  suggestion  would  not  accomplish  his  object.  Has  not  the 
Legislature  full  power  to  give  to  the  justices  of  the  peace,  the  parties  who  originally  deal 
with  crimes  now,  the  power  to  grant  bail  in  just  such  cases  as  he  desires,  to  reach? 

Mr.  Harrison:  They  have,  but  I  do  not  think  they  ought  to  have  the  power. 
Justices  of  the  peace  ought  not  to  be  allowed  to  bail  anybody  who  is  charged  with  a 
■serious  criminal  offense.  If  that  should  be  the  case,  the  justice  of  the  peace  might  turn 
loose  a  man  who  ought  not  to  be  turned  loose.  A  justice  of  the  peace  under  the  law 
now,  cannot,  in  serious  cases,  grant  bail  except  on  a  slight  suspicion  of  guilt;  and  that 
is  as  far  as  they  ought  to  be  entrusted  with  the  power  of  bail.  The  object  of  this  amend- 
ment is  to  select  a  practicing  lawyer,  the  commissioner  of  a  court,  charged  with  impor- 
tant duties  in  other  matters,  and  give  him  the  power  to  pass  on  bail  when  the  judge  is 
not  within  reach. 

Mr.  Robertson:  Mr.  President,  I  must  say  that  I  am  absolutely  opposed  to  the  pro- 
position of  the  gentleman  from  Frederick  (Mr.  Harrison).  I  do  not  agree  with  him  that 
justices  of  the  peace  ought  to  be  prohibited  from  granting  bail  in  serious  cases,  and  that 
commissioners  in  chancery  are  necessarily  very  good  people  to  grant  bail.  It  is  a  well- 
known  fact  that  there  are  a  large  number  of  commisssioners  in  chancery  who  are  not 
practicing  lawyers,  and  who  are  men  not  at  all  versed  in  criminal  matters.  This  is  a 
dangerous  power  to  put  into  the  hands  of  any  officer,  to  grant  bail  in  serious  cases  Our 
law  has  always  drawn  the  distinction  that  the  gentleman  from  Frederick  has  pointed 
out.  Justices  are  not  allowed  to  grant  bail  in  serious  felony  cases;  but  you  have  to 
apply  to  some  judge  of  a  court  of  record. 

I  think  this  is  a  dangerous  innovation  to  introduce  into  our  law.  I  think  the  chair- 
man of  the  committee  is  right,  that  this  matter  ought  to  be  left  to  the  Legislature.  In 
my  opinion  it  is  simply  another  argument  to  show  that  the  system  of  judiciary  which  we 
have  adopted  here  is  an  inefficent  one,  and  they  are  attempting  to  buttress  it  up  by  all 
kinds  of  makeshifts,  which  are  absolutely  worthless,  and  worse  than  worthless, 
because  I  believe  they  will  do  harm  to  the  Commonwealth.  I  am  absolutely  opposed  to 
adopting  an  inefficient  judiciary  system  and  then  attempting  to  buttress  it  up  by  .giving 
county  clerks  duties  that  they  ought  not  to  have,  and  commissioners  in  chancery,  and 
other  officers,  duties  they  ought  not  to  have,  because  these  gentlemen  cannot  answer 
the  argument  that  are  made  against  the  judiciary  system' which  they  have  adopted, 

Mr.  Carter:  Mr.  President,  at  first  blush  I  was  inclined  to  think  that  the  proposi- 
tion of  the  gentleman  from  Frederick  (Mr.  Harrison)  was  a  proper  one,  and  that  it 
would  tend  to  relieve  somewhat  the  embarrassment  and  trouble  resulting  from  not 
having  a  judge  always  convenient  to  grant  bail,  but  on  thinking  it  over  and  listening 
to  the  remarks  that  have  been  made  by  gentlemen  on  both  sides  it  appears  to  me  that 
the  true  answer  to  the  proposition  is  that  the  whole  matter  is  in  the  power  of  the  Legis- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGIXIA.  1749 

latiire.  and  it  is  not  only  the  duty  but  the  privilege  of  the  Legislature  to  provide  for 
all  that  kind  of  questions.  If  we  undertake  to  do  this  kind  of  thing  it  will  be  usurping 
the  province  of  the  Legislature.    AVe  cannot  go  into  all  those  details. 

]\Ir.  Harrison:  Mr.  President,  I  do  not  agi^ee  with  the  gentleman,  that  it  is  in  the 
power  of  the  Legislature.  When  the  criminal  jurisdiction  is  conferred  upon  the  courts 
and  they  are  given  the  sole  power  of  trial,  and  the  courts  are  defined  in  the  ordinance 
here  that  we  are  adopting,  I  do  not  believe  it  is  in  the  power  of  the  Legislature  to  create 
any  other  court  than  the  courts  we  have  designated  in  the  ordinance.  I  believe  this 
matter  of  bail  is  a  judicial  question  and  will  haA'e  to  be  passed  upon  by  the  court  or  the 
judge  who  is  designated  by  the  ordinance  in  this  Convention. 

Mr.  Carter:  Will  the  gentleman  point  out  some  section  here  that  would  prohibit 
the  Legislature  from  alloAving  magistrates  or  commissioners  in  chancery  or  clerks  or 
anybody  else  from  taking  bail? 

Mr.  Harrison:  It  would  not  prevent  them  from  allowing  justices  of  the  peace  to  do 
so,  but  I  believe  it  would  prevent  them  from  allowing  anybody  btit  a  judicial  officer  tO' 
do  it. 

Mr.  Hancock:  :\Ir.  President,  the  proposition  now  before  the  Convention  is  one 
of  great  importance  and  one  that  involves  the  question  of  the  separate  and  co-ordinate 
departments  of  the  government.  It  allows  the  Legislature  to  take  from  the  judge  a 
portion  of  his  judicial  functions  and  devolve  them  upon  another,  or  it  allows  a  judge 
to  delegate  his  authority  to  some  one  else.  WTien  a  judge  is  elected  it  is  his  duty  to 
pass  upon  judicial  questions.  He  is  the  officer  who  has  been  selected  by  the  sovereign 
power  of  the  Commonwealth  to  do  this  Avork,  and  no  one  else  should  have  authority 
to  perform  it  except  a  judicial  officer  selected  according  to  law  for  that  ptirpose.  A 
jtidge  of  one  of  these  circuits  consisting  of  four  or  five  counties  will  have  time  to  dis- 
pose of  all  of  these  questions  of  bail  and  to  give  ample  justice  to  the  Commonwealth 
and  to  the  accused. 

The  question  whether  bail  shall  be  allowed  to  a  prisoner  or  not  is  a  question  in 
which  the  Commonwealth  is  interested  as  well  as  the  prisoner.  It  is  a  question  jtidicial 
in  its  nature,  and  it  should  be  passed  upon  by  a  judicial  officer.  When  yoti  allow  the 
Legislature  to  authorize  the  judge  to  delegate  his  authority  to  some  one  else  then  you 
are  allowing  the  Legislature  to  take  away  from  the  proper  officer  a  part  of  the  duty 
that  is  assigned  to  him.  The  theory  of  our  government  is  that  the  judicial  and  the 
legislative  departments^  shall  be  kept  separate  and  distinct.  There  would  not  be  so  much 
objection  if  it  was  a  jtidicial  officer  to  whom  this  duty  was  to  be  assigned.  If  you  should 
say  that  one  of  the  justices  of  the  peace  of  the  county  shall  be  designated  for  that  pur- 
pose there  might  not  be  so  much  objection  to  it,  because  a  justice  of  the  peace  is  a  judi- 
cial officer,  and  it  is  his  business  to  pass  upon  questions  of  this  kind.  Y^lien  you  allow 
the  Legislature  to  authorize  a  commissioner  in  chancery  or  any  other  independent  person 
who  is  not  a  judicial  officer  to  exercise  judicial  functions,  then  you  are  allowing  the 
legislative  department  to  invade  the  territory  which  belongs  exclusively  to  the  judiciary 
department.  The  point  that  I  make  is  that  the  question  of  allowing  or  refusing  bail  is 
a  judicial  question,  and  that  only  judges  can  properly  decide  judicial  questions,  and  that 
a  judge  should  not  be  allowed  to  delegate  his  authority  to  any  one  else.  The  legisla- 
tive hand  should  not  be  placed  upon  the  judiciary  and  take  away  any  of  the  responsi- 
bilities or  any  of  the  duties  that  naturally  belong  to  a  judicial  officer.  If  this  amend- 
ment is  adopted  what  will  be  the  result?  The  judges  will  forthwith  appoint  a  com- 
missioner in  chancery  in  each  one  of  the  counties  of  the  Commonwealth,  and  thtis  relieve 
themselves  of  the  duty  and  responsibility  and  inconvenience  of  bailing  prisoners.  Let 
the  judge  have  this  power  and  responsibility,  and  this  duty  resting  upon  him  and  upon 
him  alone,  and  the  judicial  affairs  of  the  Commonwealth  will  be  better  administered 
than  to  allow  him  to  distribute  his  duties  to  five  or  six  agents  or  deputies. 

Mr,  R.  Walton  Moore:  It  seems  that  the  only  trouble  about  this  matter  arises 
from  a  doubt  as  to  whether  the  report  of  the  committee  as  presented  here  would  allow 
the  General  Assembly  to  appoint  any  other  than  a  judicial  officer  to  entertain  applica- 


1750 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tions  for  bail.  I  believe  most  of  us  wish  to  confer  the  power  upon  the  General  Assembly 
to  deal  with  and  to  dispose  of  this  bail  question  in  such  way  as  it  may  think  best.  I 
think  that  the  gentleman  from  Frederick  will  agree  tO'  adopt  the  language  that  I  now  pro- 
pose as  a  substitute  for  the  amendment  which  he  offered  a  while  ago.  The  substitute 
is  as  follows:  "The  General  Assembly  will  have  the  right  to  provide  by  whom 
and  in  what  manner  applications  for  bail  shall  be  heard  and  determined."  I  think 
that  that  will  put  the  matter  in  better  shape. 

Mr.  Harrison:    I  accept  that  amendment. 

The  amendment  was  adopted — ayes,  59;  noes,  14. 

Mr.  Harrison:  Mr.  President,  I  suppose  the  substitute  I  have  offered  for  the  whole 
report  is  in  order? 

The  Secretary:  The  substitute  proposed  by  the  member  from  Frederick  (Mr.  Har- 
rison) is,:  "All  of  Article  6  of  the  present  Constitution,  except  as  modified  as  follows 
in  Sections  9  and  10." 

Section  9  reads: 

The  General  Assembly,  at  its  first  session  after  the  adoption  of  this  Constitution, 
shall  divide  the  State  into  not  more  than  fourteen  judicial  circuits,  equalizing  as  far  as 
may  be  the  work  of  the  various  circuits  and  providing  uniform  salaries  for  the  judges. 

Section  10  reads: 

The  General  Assembly  may  rearrange  said  circuits,  or  any  of  them,  and  increase  or 
diminish  the  number  thereof  when  the  l)ublic  interests  require  it,  at  the  end  of  periods  of 
eight  years. 

The  member  from  Roanoke  (Mr.  Robertson)  proposes  the  following  amendments  to 
the  substitute: 

That  Section  13  be  amended  by  striking  out  the  word  beginning  "provided"  and  end- 
ing with  "county  judges,"  substituting  therefor:  "Provided,  that  several  adjoining  coun- 
ties may,  in  the  discretion  of  the  Legislature,  be  united  for  the  formation  of  district 
and  county  judges." 

Mr.  Harrison:    I  will  accept  that. 

The  President:  The  pending  question  is  upon  the  adoption  of  the  substitute  for 
the  article  reported  by  the  Committee  on  the  Judiciary  offered  by  the  gentleman  from 
Frederick. 

The  ayes  and  noes  were  taken,  and  resulted — ayes,  27;  noes,  50 — as  follows: 

Ayes — Messrs.  Bristow,  Clarence  J.  Campbell,  Chapman,  Dunaway,  Earman,  Epes, 
Fletcher,  Gillespie,  Gregory,  Hancock,  Harrison,  Hooker,  Hubbard,  Ingram,  Claggett  B. 
Jones,  Keezell,  Lincoln,  Marshall,  Moncure,  Thomas  L.  Moore,  Mundy,  Pedigo,  Phillips, 
Portlock,  Quarles,  Robertson  and  Thornton — 27. 

Noes — Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Barbour,  Barham,  Thomas  H.  Barnes, 
Boaz,  Bouldin,  Braxton,  Brooke,  P.  W.  Campbell,  Carter,  Cobb,  Crismond,  Fairfax,  Garnett, 
Gilmore,  Glass,  B.  T.  Gordon,  James  W.  Gordon,  R.  L.  Gordon,  Green,  Gwyn,  Hamilton, 
Hardy,  Hatton,  Hunton,  G.  W.  Jones,  Lawson,  Lindsay,  Mcllwaine,  Meredith,  Miller,  R. 
Walton  Moore,  O'FIaherty,  Orr,  Parks,  Pollard,  Richmond,  Stuart,  Summers,  Tarry,  Thorn, 
Turnbull,  Waddill,  Walker,  Wescott,  Willis,  Wise  and  Woodhouse — 50. 

Mr.  Harrison's  substitute  was  rejected. 

Mr.  Hunton:    Mr.  President,  I  move  that  the  report  as  a  whole  be  adopted. 
The  report  was  adopted. 

Mr.  Hunton:    Mr.  President,  I  move  that  the  judiciary  article  of  the  new  Constitu- 
tion be  referred  to  the  Committee  on  Final  Revision. 
The  motion  was  agreed  to.  (Applause.) 

On  motion  of  Mr.  Mcllwaine  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Education 
and  Public  Instruction,  Mr.  Parks  in  the  chair. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


1751 


Mr.  Mcllwaine:    Mr.  Cliairman,  the  matter  under  consideration  when  this  report 
was  last  before  the  committee  was  the  twelfth  section. 
The  Chairman:    The  Secretary  will  read  the  section  . 

Sec.  12.  The  General  Assembly  shall  make  provision  for  the  maintenance  of  the 
University  of  Virginia  by  an  annual  appropriation  not  less  than  now  provided  by  law. 

The  Chairman:    The  question  is  on  the  motion  to  strike  out  Section  12. 
The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayesi, 
32;  noe?  44. 

The  amendment  was  rejected. 
.  Mr.  Hamilton:    Mr.  Chairman,  I  offer  the  following  amendment  to  Section  12. 

The  General  Assembly  shall  make  provision  for  the  maintenance  of  the  University  of 
Virginia  and  of  the  Virginia  Military  Institute  by  annual  appropriations  not  less  than 
now  provided  by  law, 

Mr.  Hamilton:  Mr.  Chairman,  I  want  to  say  a  few  words  as  to  that  amendment. 
I  have  not  troubled  this  body  by  taking  much  of  its  time,  and  I  ask  the  attention  of 
members.  This  is  a  matter  in  which  I  feel  deep  interest.  Every  cadet  of  the  Virginia 
Military  Institute  in  the  State  and  thousands  in  other  States  will  feel  that  a  marked 
unnecessary  and  unjust  discrimination  is  made  against  that  institution  If  the  University 
alone  is  singled  out  for  this  permanent  appropriation  in  the  Constitution. 

I  did  not  believe  on  principles,  sir,  and  I  do  not  now  so  believe,  that  any  permanent 
appropriation  should  be  made  by  the  Convention  for  any  purpose  except  preserving 
the  co-ordirate  branches^  of  the  government  independently  of  each  other.  For  that 
reason  I  could  not  as  a  matter  of  principle  vote  for  this  originally,  either  for  the  Uni- 
versity or  the  Military  Institute,  although  both  are  yery  dear  to  my  heart;  but  if  this 
Convention  thinks  it  is  proper  to  make  an  appropriation  for  any  institution  of  learning 
in  the  State  I  say  tne  Virginia  Military  Institute  should  not  be  left  out  of  that  list. 

It  was  founded  in  1839.  It  has  not  alone  in  war  added  to  the  glories  and  lustre  of 
Virginia,  but  it  has  equallly  done  so  in  peace.  It  absolutely  belongs  to  the  State  of 
Virginia,  every  foot  of  its  ground,  every  brick.  It  and  the  University  are,  strictly 
speaking,  the  colleges  of  the  State. 

We  believe  it  is  right  for  it  to  be  in  this,  appropriation  permanently,  if  it  is  right 
for  an\i:hing  to  go  in  it,  and  we  urge  the  members  of  this  Convention  not  to  so  discrimi- 
nate against  it  as  to  have  people  feeling  that  the  Convention  has  intentionally  cast  a 
slur  upon  it,  and  therefore  done  something  that  would  injure  it  in  its  usefulness  in  the 
future. 

Mr.  O'Flaherty:  Mr.  Chairman,  I  move  to  amend  the  motion  of  the  gentleman  by 
inserting  after  the  words.  "Virginia  Military  Institute,"  the  words  "and  the  State  Normal 
School." 

1  wish  to  state  in  favor  of  that  proposition  that  if  we  are  going  to  make  this  appro- 
priation to  the  University  of  Virginia  and  to  the  Virginia  Military  Institute  we  ought  to 
make  it  to  the  only  institution  in  Virginia  with  which  the  people  of  Virginia  are  in  direct 
contact.  I  make  the  assertion  that  the  State  Normal  School,  in  my  opinion,  is  the  most 
important  of  the  educational  institutions  of  the  State  of  Virginia  I  want  it  distinctly 
understood  I  have  nothing  against  the  Military  Institute.  I  have  nothing  against  the 
State  University  of  Virginia;  but  I  believe  that  we  ought  to  train  teachers  to  teach 
in  the  public  free  schools  of  Virginia  and  if  we  do  not  train  teachers  instead  of  soldiers 
we  are  making  a  retrograde  movement. 

I  repeat,  I  have  nothing  against  the  University  of  Virginia;  but  I  do  want  to  say 
that  when  I  was  a  boy  and  wanted  to  get  an  education  I  found  that,  notwithstanding 
I  might  be  able  to  get  admission  into  that  institution,  the  additional  amount  of  money 
that  it  required  of  me,  if  I  were  a  State  student,  was  such  that  it  was  impossible  for  me 
to  get  inside  of  it;  and  I  was  driven  to  go  outside  of  the  State  of  Virginia  to  get  the 


1752  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

most  of  my  education,  because  I  could  get  it  cheaper.  And  yet  we  are  here  to-day 
fastening  upon  the  people  of  Virginia  for  generations  to  come  an  appropriation  of  at 
least  $50,000  a  year. 

Now,  the  public  schools  of  Virginia  need  trained  teachers.  They  demand  to-day 
the  very  best  talent;  and  I  make  the  assertion  that  to-day  the  University  of  Virginia 
does  not  send  out  teachers  to  teach  in -the  public  schools  of  Virginia,  and  we  all  know 
it.  Why  cut  out  the  State  Normal  School  that  is  educating  poor  boys  and  girls  to  become 
teachers,  and  I  do  not  hesitate  to  say  that  the  teachers  of  the  United  States  are  the 
very  grand  army  of  the  republic — the  school  teachers  of  Virginia  form  a  part  of  that 
magnificent  army.  You  are  voting  money  to  the  rich  pian's  sons  to-day  and  taking  it 
away  from  the  public  free  schools  of  Virginia;  and  you  are  not  willing  to  give  to  the 
training  of  the  young  men  and  women  of  Virginia  that  which  is  necessary  to  make  them 
good  teachers  in  the  public  schools.    Is  this  Convention  going  to  do  that? 

I  wish  I  had  the  time  to  read  to  you  the  letters  and  the  newspaper  clippings  that 
I  have  received  and  seen  condemning  us  for  the  action  we  are  taking  along  this  line. 
There  is  a  great  audience  outside  of  this  hall  listening  to  what  we  say;  and  they  are 
taking  note  of  what  we  do^  and  demanding  that  we  do  not  throttle  the  public  school 
system.  You  cannot  do  anything  better,  if  you  are  going  to  put  the  University  of  Vir- 
ginia in,  and  put  the  Military  Institute  in,  than  to  train  the  young  men  and  women  to 
teach  the  young  "idea  how  to  shoot"  and  not  to  train  men  to  shoot  their  fellow  beings. 
We  have  passed  the  stage  of  war  and  bloodshed  and  carnage.  We  are  on  a  higher 
plane  of  intellectuality;  and  I  raise  my  voice  to-day  in  behalf  of  the  school  teachers 
of  Virginia  and  the  public  schools,  without  consultation  with  any  member  of  the  board 
of  that  institution,  without  any  connection  with  the  State  Normal  School,  but  as  a  lover 
of  public  free  schools,  and  believing  that  the  schools  of  Virginia  cannot  make  any 
higher  progress,  than  the  advance  guard,  who*  are  the  teachers  of  Virginia.  I  ask  that 
you  put  the  State  Normal  School  upon  the  same  footing  as  theie  other  institutions.  The 
State  Normal  School  at  Parmville  is  preparing  teachers,  and  doing  it  well. 

Then  there  is  William  and  Mary  College,  and  Blacksburg,  and  yet  we  are  discrimi- 
nating against  all  these  institutions  which  belong  to  Virginia,  except  the  great  Uni- 
versity of  Virginia,  that  does  not  need  any  help. 

Some  one  said  upon  this  floor  the  other  day  that  the  University  of  Virginia  had  not 
grown  because  they  had  no  private  donations.  I  want  to  say  there  is  no  great  university 
in  this  country  that  has  ever  grown  by  parental  donations  from  the  State.  The  Uni- 
versity at  Ann  Arbor,  Michigan,  is  the  only  university  in  the  United  States  that  ever 
received  anything  like  princely  allowances  from  the  State,  and  as  I  understand  a  great 
deal  of  that  comes  from  the  sale  of  the  public  lands,  of  that  State. 

Now,  I  want  you  to  point  me  to  a  single  university  that  has:  ever  become  great  by 
State  donations.  One  gentleman  said  here  recently  that  we  only  have  one  university 
in  this  State.  I  deny  it.  Washington  and  Lee  University  to-day  stands  just  as  high 
with  the  other  colleges  of  the  United  States  as  the  University  of  Virginia,  and  yet  it 
does  not  get  a  dollar.  It  has  had  donations  of  nearly  a  million  dollars,  and  why  has 
it  gotten  them?    Because  it  has  stood  upon  its  own  merits. 

I  say  again  I  have  nothing  against  these  other  schools;  but  in  justice  to  the  poor 
people  of  Virginia,  when  you  have  taken  the  money  out  of  the  public  coffers  do  not  put 
it  into  the  treasury  of  a  great  university,  but  rather  let  us  invest  it  in  training  teachers. 
I  did  not  expect  to  say  anything  on  this  subject,  but  I  cannot  remain  quiet  and  feel  that 
I  have  done  the  duty  that  I  owe  to  the  good  people  who  have  sent  me  here,  unless 
I  protest. 

Unless  gentlemen  can  show  that  we  ought  to  discriminate,  let  us  give  them  all  the 
same  chance,  equal  opportunities,  equal  chances.  Let  all  the  young  men  and  young 
women  of  this  State  who  want  to  attend  the  various  institutions  of  learning  in  the 
State  be  able  to  choose.  Let  them  feel  that  the  State  has  the  same  interest  in  the 
institution  to  which  they  go  as  in  the  others. 

I  ask  you,  gentlemen  to  vote  for  the  amendment  that  I  offer,  to  put  the  State 


DEBATES  OE  THE  CONSTITUTIONAL  COXVEXTION  OE  YIEGINIA. 


1753 


Female  Normal  College  on  the  same  footing  with  those  other  institutions,  for  this  school, 
I  know,  is  doing  a  good  work,  and  as  great  service  to  the  State  as  is  the  University 
of  Virginia. 

I  thank  you  for  your  attention.  I  hope  you  will  vote  for  this  amendment,  because 
I  believe  it  is  right,  it  is  just,  it  is  putting  the  money  where  it  will  do  the  most  good; 
it  is  bread  cast  upon  the  waters  which  will  return  many  days  hence. 

Mr.  Brown:  I  desire  to  say  a  very  few  words  on  this  question  of  adding  other 
institutions  to  the  university  in  the  Constitution  for  fixed  appropriations.  I  have  no 
desire  whatever  to  oppose  the  Virginia  Military  Institute.  I  have  the  highest  regard 
and  affection  for  the  Virginia  Military  Institute.  I  occupy,  however  a  posi- 
tion in  connection  with  one  of  the  other  State  institutions  of  Virginia,  the 
A^irginia  Polytechic  Institute,  which  makes  my  regard  for  that  institution  very 
warm.  In  the  committee  I  made  no  request  that  the  State  should  fix  an  appropria- 
tion for  that  institution.  I  opposed  the  proposition  to  fix  an  appropriation  for  evedy  other 
institution  except  the  University  of  Virginia.  I  agreed  to  vote  for  that  proposition- 
that  the  appropriation  to  the  University  should  be  fixed — because  I  believe  that  the 
Universitj^  occupies  a  different  position  in  this  State  from  any  other  State  institution. 
It  occupies,  or  it  should  occupj'',  a  position  as  the  head  of  the  educational  institutions 
of  the  State,  especially  of  the  free  school  system  of  the  State.  And  then,  again,  it 
comes  in  direct  contact  with  all  the  academic  sectarian  schools  in  the  State.  The 
representation  made  by  the  especial  friends  of  the  University  of  Virginia,  members 
of  its  board,  is  that  competition  causes  a  friction  between  the  University  and  these 
institutions,  causes  the  board  of  the  University  to  be  placed  in  the  position  of  doing 
away  with  the  necessary  entrance  examinations,  which  results  in  there  being  at  the 
University  a  number  of  immature,  unprepared  students  who  should  be  at  the  colleges, 
and  places  the  University  in  the  position,  therefore,  of  doing  not  the  proper  work  that 
it  should  be  doing  in  the  State,  but  attempting  to  occupy  not  only  the  university  field, 
but  the  field  of  the  colleges  as  well. 

Taking  that  view  of  the  question,  I  was  willing  to  vote  for  this  appropriation  to 
the  University  of  Virginia,  because  I  believed  everything  should  be  done  to  enable  the 
board  of  the  institution  to  make  it  a  tmiversity  in  fact  as  well  as  in  name.  I  know, 
as  a  matter  of  fact,  that  few,  if  any,  of  the  boys  from  the  institution  with  which  I  ha»ve 
the  honor  to  be  connected  go  to  the  University  for  post-graduate  work.  They  leave 
the  State  and  go  after  graduation  to  such  institutes  as  the  Boston  School  of  Technology 
and  the  Stevens  Institute.  And  why  do  they  go?  Because,  as  there  are  not  in  this 
State  the  proper  facilities,  they  go  out  to  these  institutions.  I  want  to  do  what  I  can 
to  raise  the  University  of  Virginia  to  the  level  of  those  instittitions  out  of  the  State, 
not  to  make  it  more  difficult  for  it  to  reach  that  goal. 

The  friends  of  the  University  of  Virginia  feel  that  in  coming  to  the  Legislature 
every  year  they  have  a  fight  on  their  hands  to  retain  this  appropriation.  It  may  be 
there  is  some  truth  in  that.  On  the  other  hand,  I  do  not  think  the  Legislature  of  Vir- 
ginia will  ever  fail  to  make  a  suitable  provision  for  the  University  of  Virginia,  but 
I  do  feel  that  there  must  be  at  that  institution  an  unusual  feeling  if  every  year  they 
have  to  come  here  and  make  the  same  fight.  I  want  to  remove  the  nncertainty  upon 
that  subject.  I  want  to  put  the  University  in  the  position  of  giving  the  highest  uni- 
versity work  to  the  people  of  this  state.  I  feel  that  the  Virginia  Polytechnic  Institute 
and  the  Virginia  State  Female  Normal  School  at  Farmville  are  not  in  competition  with 
the  University  of  this  State,  because  by  doing  special  work  for  the  State  none  of  them 
are  prejudiced  by  this  resolution.  I  do  hope  that  it  will  be  the  pleasure  of  this  Conven- 
tion to  vote  down  the  proposition  to  add  other  institutions  to  the  report  of  the  com- 
mittee. 

Mr.  William  A.  Anderson:    Mr.  Chairman,  I  yield  to  no  man  in  my  appreciation 
of  the  value  of  the  University  of  Virginia  to  the  Commonwealth.    It  is  one  of  the 
institutions  of  the  State  which  has  returned,  many  fold,  every  dollar  that  has  been  con- 
tributed by  the  people  for  its  support.    It  is  an  honor  to  the  State  of  Virginia.    It  has 
111— Const.  Deb. 


1754 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


doue,  and  is  doing,  a  work  that  cannot  be  measured  in  dollars  and  cents.  WSiile  these 
are  my  views  and  these  the  sentiments  which  I  cherish  towards  that  institution  of 
which  I  have  the  honor  to  be  an  alumnus,  while  I  can  never  hope  to  repay  the  debt  of 
gratitude  which  I  owe  to^  the  faithful,  capable  and  dutiful  men  who  were  the  instructors 
during  the  days,  of  my  youth  when  I  was  a  student  within  its  halls,  I  feel  that  this 
committee  has  made  a  mistake  in  undertaking  to  single  it  out  as  the  only  institution  in 
Virginia  which  should  be  recognized  in  the  Constitution  in  this  manner.  Though  I 
am  an  alumnus,  and  a  loyal  alumnus,  of  the  University  of  Virginia  and  have  never  had 
any  connection  except  in  a  representative  capacity  with  the  Virginia  Military  Institute, 
I  know  enough  of  that  institution,  of  the  invaluable  work  which  it  has  done,  and  is 
doing,  for  Virginia  to  be  justified  in  the  statement  that  its  claims  upon  the  Common- 
wealth, in  proportion  to  the  benefactions  which  it  has  received,  are  equal  even  to  that 
of  your  great  university;  and  I  advocate  the  proposition  submitted  by  the  gentleman 
from  Petersburg  (Mr.  Hamilton),  because  not  to  adopt  it  will  be  an  injustice  and  an 
invidious  discrimination  against  an  institution  of  this  State  whose  history  is  too  well 
known  to  members,  of  the  committee  for  me  to  undertake  to  show  them  that  it  is 
entitled  to  such  recognition  as  he  asks. 

It  is  not  only  upon  the  bloody  field  of  war  that  the  men  whom  that  institution  has 
turned  out  have  reflected  immortal  renown  upon  the  people  of  Virginia.  It  was  not 
only  during  and  before  the  war  between  the  States  that  they  went  to  the  front  in  every 
department  of  industry  and  of  intellectual  achievement  in  the  Commonwealth,  through- 
out the  land,  wherever  they  have  been  found,  since  the  war,  tot-day  everywhere  in  the 
Commonwealth,  and  particularly  in  the  avenues  of  business,  as  well  also  as  in  the 
highest  walks  in  any  profession,  you  find  the  alumni  of  the  Virginia  Military  Institute 
measuring  up  to  the  highest  standard  of  educated  civic  virtue. 

If  you  looK  through  the  streets  of  this  city,  or  any  other  city  of  the  Common- 
wealth; if  you  consider  the  conditions  in  any  county  of  the  Commonwealth,  you  will 
find  that  the  graduates  of  the  Virginia  Military  Institute  are  among  the  most  useful 
and  the  most  successful  of  all  the  citizens  of  the  State  in  every  department  of  industry 
or  of  labor  to  which  they  may  have  devoted  their  energies. 

Some  gentlemen  have  s.uggested  that  the  University  of  Virginia  is  the  capstone 
of  our  public  school  system.  It  has  done  a  great  work  for  education  in  Virginia,  but 
within  its  domain,  and  in  proportion  to  the  assistance  which  it  has  received  from  the 
Commonwealth,  I  do  not  hesitate  to  say  that  the  Virginia  Military  Institute  has  done 
more  for  education  in  Virginia  than  the  University  of  Virginia.  Of  the  135  men  who 
last  graduated  at  the  Virginia  Military  Institute,  55  are  now  engaged  actually  in  teaching 
in  the  State  of  Virginia.  Fifty  out  of  each  corps  at  that  institution,  about  one-fourth 
of  each  corps  of  the  State  appointees,  are  under  obligation  to  teach  for  two  years,  at 
least,  after  they  leave  the  institution. 

Mr.  Keezell:  I  want  to  know  whether  or  not,  if  this  provision  which  perpetuates, 
an  appropriation  not  less  than  is  now  provided  by  law,  is  engrafted  in  the  Constitution, 
it  would  not  be  in  the  power  of  the  board  of  visitors  of  that  institution  to  devote  all 
of  the  benefits  now  received  by  State  s-tudents  from  that  provision  which  requires  that 
they  shall  teach  in  the  public  free  schools,  and  whether  they  would  not  be  independent 
of  the  Legislature? 

Mr.  Hamilton:    I  will  answer  that  they  cannot  do  it. 

Mr.  Ayers:  They  are  appointed  by  the  State.  The  State  has  absolute  control  of 
them. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  it  would  be  impossible  for  them  to  do 
any  such  thing  unless  they  were  required  to  do  it  by  the  law  of  the  State.  I  suppose 
it  is.  not  proposed  by  any  man  that  the  Constitution  which  we  shall  adopt  shall  operate 
to  repeal  all  the  statutes  of  the  Commonwealth.  On  the  contrary,  following  the  example 
of  every  other  Convention,  you  must,  by  your  schedule,  continue  in  operation  and 
perpetuity  all  statutes  of  the  State  not  by  plain  implication  or  by  express  terms 
repealed  by  the  Constitution. 


DEBATES  OF  THE  COXSTITUTIOXAE  COX^^XTION  OE  YIRGIXIA. 


1:55 


I  entirely  endorse  all  ihat  has  been  said  by  my  patriotic  young  friend  from  Warren 
in  reference  to  the  Alrginia  State  Female  Normal  School,  and  the  claims  which  it  has 
upon  the  Commonwealth,  and  when  the  claims  of  that  institute,  in  reference  to  which 
my  friend  has  offered  his  amendment,  come  up  upon  their  merits,  as  an  independent 
proposition,  I  shall  most  heartily  give  it  my  support.  It  has  been  a  reproach  to  Vir- 
ginia that  she  has  done  so  little  foT  female  education.  The  Farmville  Female  Normal 
School  represents  practically  the  only  contribution  which  the  manliood  of  Virginia  has 
made  to  female  education.  It  has  been  the  greatest  success  that  has  ever  been  ac- 
complished by  the  people  of  Virginia  in  any  educational  enterprise,  and  it  ought  to  be 
prospered.  It  deserves  to  be  recognized,  and  it  would  be  wrong  for  tis,  by  leaving 
it  out  of  any  such  provision  as  this,  to  subject  it  to  insidious  discrimination. 

But  upon  the  main  question,  tipon  the  qtiestion  now  before  the  committee,  as  to 
whether  the  Virginia  Military  Instittite  shall  be  endorsed,  I  confidently  appeal  to  the 
members  of  this  committee  not  to  permit  an  act  of  such  injtistice.  and  I  may  say  of 
such  ingimitude,  towards  one  of  the  most  useful  of  all  the  institutions  that  Virginia 
has  ever  fotmded. 

Mr.  Keezell:  Mr.  Chairman,  when  this  question  was  tip  some  days  ago  I  made 
some  remarks  with  reference  to  striking  out  this  appropriation  for  the  University  oi 
Virginia.  I  do  not  at  this  time  wish  to  go  over  the  same  ground,  except  that  we 
have  possibly  a  good  many  more  of  our  membership  here  than  we  had  then.  I  stated 
then,  and  1  think  I  can  prove  by  the  record,  that  the  University  of  Virginia  was  not 
in  danger  of  having  its  appropriation  reduced,  beca^use  the  history  of  the  last  twenty 
years  has  shown  that  at  every  session  of  the  Legislature  it  was  fully  cared  for.  That 
this  appropriation  has  been  increased  from  §15,000  some  years  back  until  it  is  now 
850,000  is  proof  that  there  has  been  no  disposition  on  the  part  of  the  Legislature  not 
to  provide  for  this  institution — all  the  State  cO'Uld  .afford  to  give  it  and  all  that  was 
for  its  uses.  I  showed  at  that  time  that  not  only  had  its  annual  appropriation  been 
increased,  but  that  special  appropriations  had  been  made  time  and  again  for  particular 
purposes.  I  called  attention  to  two  facts  with  reference  to  that.  I  remember  o-nce, 
some  years  ago,  when  this  institution  came  to  the  Legislature  of  Virginia  asking  that 
authority  be  given  it  to  secure  money  for  an  increased  water  supply,  the  Legislature 
promptly  voted  every  dollar  hey  asked  for,  in  cash,  necessary  to  secure  this  water 
supply  .  On  another  occasion  it  vras  unforttmate  and  its  btiildings  burned  down,  and, 
although  it  was  a  question  of  doubtful  co^nstitutional  propriety,  the  Legislature,  to  all 
intents  and  purposes,  gtiaranteed  the  bonds  of  that  institution,  authorizing  them  to 
mortgage  their  property  and  appropriating  money  for  the  payment  O'f  interest  and 
sinking  fund  upon  its  bond  issue  of  $200,000.  I  argued  from  that  standpoint  that  I 
believed  it  was  unnecessary  in  the  interest  of  this  great  institution  to  ptit  in  the  Con- 
stitution anything  vrlth  reference  to  guaranteeing  its  appropriations. 

I  hold  the  same  position  to-day  that  I  held  then.  I  did  not  agree  with  the  delegate 
from  Lynchburg  (Mr.  Glass)  and  others,  who  thought  that  the  competition  of  the  other 
institutions  in  the  State  made  it  necessary  to  put  the  L'ni versify  on  a  higher  plane 
above  and  beyond  all  the  other  institutions  of  the  State.  I  believe  the  only  argument 
then  which  was  made  in  favor  of  making  an  exception  of  this  institution  and  putting 
it  in  the  Co^nstitution  was  because  of  the  fact  that  it  too^k  into  its  walls  immature 
pupils  who  ought  to  be  in  the  colleges,  thus  provoking  a  certain  amount  of  antagonism 
from  its  sectarian  institutions  and  colleges  in  the  State  which,  it  was  stated,  made  it 
always  have  trouble  to  get  its  appropriation.  That,  if  I  understand  correctly,  was  the 
argument  made  by  its  friends;  and  I  do  not  wish  to  be  classed  in  any  other  position 
than  as  one  of  its  friends;  but  by  its  special  advoc-ates,  I  will  say,  those  who  are  in 
favor  of  putting  this  appropriation  in  the  Co^nstitution. 

I  say  I  think  1  have  shovTi  my  friendship  to  the  L'niversity  by  voting  the  money 
of  the  people  of  the  State  to  the  uses  and  needs  of  that  Institution. 

Now,  this  committee  having  reversed  its  action  of  a  few  days  ago  and  having 
voted  to  put  this  appropriation  in  the  Constitution,  what  would  most  naturally  have 


1756 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


been  expected  has  happened.  Here  come  the  special  representatives  of  other  institu- 
tions and  ask  that  their  institutions,  too,  be  put  in  the  Constitution,  and  a  provision  be 
engrafted  on  it  that  they  shall  receive  no  less  appropriation  than  they  now  receive. 

Now,  Mr.  Chairman,  I  would  like  to  vote  for  all  of  them  if  I  thought  it  was  right, 
but  I  believed  it  was  wrong  to  vote  for  the  University.  I  believe  it  is  equally  wrong 
to  vote  for  these  other  institutions;  and  even  though  I  shall  be  put  in  the  attitude, 
possibly,  of  bringing  about  discrimination,  I  cannot  bring  myself  tO'  the  point  of  voting 
to  put  into  the  Constitution  provisions  which  I  do  not  believe  belong  in  the  Constitution, 
but  which  ought  to  be  left  to  the  Legislature.  I  do  not  believe  it  is  good  policy  to  take 
out  of  the  hands  of  the  people,  and  out  of  the  hands  of  the  representatives  of  the  people, 
control  over  the  appropriations  to  these  institutions,  and  thereby,  to  a  very  great  extent, 
any  control  over  these  institutions,  for  when  you  take  out  of  the  hands  of  the  Legisla- 
ture and  out  of  the  hands  of  the  people  the  right  to  hold  the  purse  strings  you  have 
made  these  institutions  largely  independent  of  the  people. 

For  that  reason  I  am  going  to  vote  against  the  proposition  to  put  a  single  solitary 
one  of  these  institutions  in  the  Constitution.  Much  as  I  am  in  favor  of  the  Female 
Normal  School  at  Farmville;.  much  as  I  realize  and  recognize  the  work  of  that  insti- 
tution and  the  grand  work  it  is  doing;  much  as  I  recognize  the  needs  and  the  worth 
of  the  Virginia  Military  Institute,  I  cannot  bring  myself  to  violate  a  principle  of  govern- 
ment which  I  think  we  ought  to  recognize,  and  ought  not  to  violate  by  undertaking  to 
tie  the  hands  of  all  future  Legislature,  and  of  the  people  for  generations  to  come, 
with  reference  to  the  control  of  their  institutions  and  the  expenditure  of  their  hard 
earned  taxes. 

Then,  again,  Mr,  President,  I  think  we  are  making  an  unfair  discrimination  here 
in  favor  of  these  institutions  of  higher  education,  I  care  not  how  worthy  they  are,  and 
against  the  public  free  schools,  in  this  State.  We  are  saying  in  the  Constitution  that 
it  matters  not  whether  pestilence  or  famine  or  whatnot  may  befall  the  State;  it  matters 
not  what  may  be  the  condition  of  the  treasury,  if  it  is  necessary  to  do  so,  you  will  have 
to  take  away  from  other  institutions  or  objects  or  you  will  have  to  impose  a  high  rate 
of  taxation  in  order  to  provide  the  funds  to  insure  that  these  institutions  shall  never 
receive  a  dime  less  than  they  receive  now,  whether  they  need  it  or  not.  Yet  as  to 
the  public  free  schools,  you  put  them  upon  the  basis  of  simply  receiving  whatever  they 
receive  according  to  whether  the  State  is  prosperous  or  whether  it  lacks  in  prosperity; 
and  in  that  particular  you  make  a  discrimination  against  the  public  free  schools  of 
the  State  and  in  favor  of  these  institutions  of  higher  education,  which  I  think  is  un- 
warranted and  ought  not  to  be  done.  I  think  they  ought  to  take,  if  I  may  be  allowed  to 
use  the  expression,  "pot-luck"  along  with  all  the  other  educational  and  other  institu- 
tions of  the  Commonwealth. 

Now,  Mr.  Chairman,  I  know  that  these  institutions  do  good  work;  but  if  we  just 
stop  a  moment  and  look  at  what  it  costs  the  people  of  Virginia  in  order  that  this  work 
may  be  done,  we  may  realize  something  with  reference  to  the  proposition  which  we 
are  going  to  vote  upon  now.  The  State  of  Virginia  appropriates  $25,000  annually  to 
the  Virginia  Military  Institute — 

Mr.  Fairfax:    I  beg  your  pardon,  I  think  it  is  only  $20,000. 

Mr.  Keezell:  It  is  $25,000  to  the  Virginia  Military  Institute;  and  until  within  a 
few  years  it  has  been  $30,000.  Every  few  years  it  makes  an  additional  appropriation 
for  buildings  or  repairs,  or  something  of  that  sort,  of  $5,000  or  $10,000.  What  does 
the  State  get  in  return  for  the  $25,000  which  it  appropriates  each  year  to  the  Virginia 
Military  Institute?  It  gets  the  free  education  of  fifty  State  students.  What  does  that 
amount  to?  It  costs  the  State  $500  for  each  one  of  the  State  students  who  goes  to  that 
institution,  and  unless  that  State  student  is  able  to  pay  from  $165  tO'  $200  in  addition 
he  cannot  get  into  that  insttution;  and  therefore  for  each  boy  educated  there  at  State 
expense  the  State  contributes  $500  and  the  boy's  guardian  or  his  father  has  to  contri- 
bute from  $165  to  $200  more,  in  order  that  he  may  receive  that  education.  Yet  I  am 
told — and  if  I  misrepresent  I  hope  the  members  of  the  board  of  that  institution  who  are 


DEBATES  OE  THE  COXSTITUTIOXAL  CO^"TXXTI0X  OE  YIEGIXIA. 


175? 


members  of  the  Conventioii  will  correct  me,  because  I  do  not  wisli  to  make  a  mis- 
statement— thai  a  boy  ma.j  come  from  outside  the  State  and  receive  ax  that  institu- 
tion education  which  does  not  cost  him  in  the  aggregate  more  than  $360  per  session. 
If  I  am  incorrect  I  want  to  be  corrected  right  here  and  now.  I  say  that  S360  pays  the 
entire  cost  of  an  outsider,  whilst  a  Virginia  boy  has  to  pay  8655,  in  order  that  he  may 
be  educated  in  that  institution  either  hy  his  guardian  or  by  the  State. 

Mr.  Hamilton:  The  average  cost  of  attending  the  Virginia  Military  Institute  to  a 
boy  who  goes  there  is  but  $365.  The  average  cost  of  the  State  student  is  $165  a  year. 
The  State  appointment  is  equal  to  $200  a  year. 

Mr.  Keezell:  Then  I  have  made  an  absolutely  correct  statement.  :\Iy  statement 
was  that  it  cost  the  State  student,  either  by  his  guardian  or  by  the  State,  $665,  and 
I  have  taken  the  minimum;  and  it  costs  an  outsider,  one  who  is  not  a  State  cadet,  the 
gentleman  says,  $365.  I  said  $260.  Possibly  I  may  have  been  in  error  in  regard  to  the 
$5. 

Now.  :\Ir.  Chairman,  this  being  the  case,  now  when  the  Legislature  has  control  of 
the  appropriation,  when  they  come  to  the  Legislature  of  Virginia  and  ask  an  appropria- 
tion upon  the  basis  of  the  benefits  which  they  are  conferring,  what  do  you  suppose  will 
possibly  be  the  result  when  you  ptit  into  the  Constitution  a  provision  that  it  matters 
not  what  may  happen,  never  shall  they  receive  less  than  $25,000  for  this  institution? 
Mr.  Chairman,  I  do  not  think  it  is  good  public  policy  to  put  in  the  Constitution  any  of 
these  appropriations,  and  I  think  it  is  exceedingly-  bad  that  we  should  now,  because  we 
have  violated  the  principles  in  one  instance,  that  there  should  be  an  effort  to  make  a 
rush  to  become  preferred  creditors  and  to  mortgage  the  revenues  of  the  State  for  the 
benefit  of  certain  institutions. 

I  tell  you,  Mr.  Chairman,  the  day  of  reckoning  is  going  to  come  one  of  these  days, 
and  it  is  not  going  to  be  very  far  off.  If  the  gentlemen  want  to  load  down  this  Con- 
stitution to  such  an  extent  that  when  jom  submit  it  to  the  people  for  their  ratification 
3'ou  will  certainly  -insure  its  defeat,  just  go  along  at  the  gait  you  are  now  going  and  I 
will  guarantee  yon  will  insure  it  beyond  any  question  in  the  world. 

Mr.  Hamilton:  If  the  gentleman  will  permit  me,  I  am  told  he  says  it  costs  the 
State  student  at  the  Virginia  Military  Institute  $660  a  year. 

Mr.  Keezell:    Xo,  sir;  I  say  ft  costs  the  State  student  and  the  State  $665. 

]\Ir.  Hamilton:  VTiy  do  you  not  make  those  calculations  as  to  the  L'niversity 
of  Virginia  and  other  places? 

;Mr.  Keezell:  I  only  made  it  in  regard  to  this  one  because  this  is  the  only  one  we 
are  considering  at  present. 

I  stated  explicitly  that  I  was  as  much  opposed  to  fixing  in  the  Constitution  an 
appropriation  to  the  University  of  Virginia  as  to  the  Virginia  Military  Institute;  but 
I  supposed  i  wouiu  be  out  of  order  if  I  discussed  a  proposition  which  had  been  already 
settled,  and  that  I  was  in  order  when  I  was  discussing  one  before  this  body.  I  used  the 
figures  that  were  applicable  to  tne  case  I  was  discussing  before  the  Convention. 

Mr.  Chairman,  I  do  not  vrish  to  weary  the  committee  longer.  I  simply  want  to 
raise  my  protest  against  what  is  going  on  in  tke  committee:  against  this  effort  on  the 
part  of  everybody  to  get  special  benefits  and  special  favors  for  the  special  interests 
which  they  represent,  to  the  detriment  of  the  interests  of  the  whole  people  of  Virginia. 
I  stated  to  the  good  people  of  Rockingham,  when  I  was  nominated  for  a  seat  upon  the 
floor  of  the  Convention,  that  if  they  expected  me  tO'  come  to  this  Convention  and  get 
special  favors  for  them,  to  undertake  to  protect  them  against  their  share  of  the  burdens 
of  the  government  of  the  State,  or  to  undertake  to  get  for  them  special  advantages  or 
special  favors.  I  wanted  them  to  nominate  somebody  else,  and  I  would  not  come  to  this 
Convention  and  ask  for  my  people  anything  that  I  would  not  give  to  any  other  com- 
munity in  Virginia,  nor  would  I  ask  them  to  be  exempted  from  any  burdens  that  were 
to  be  borne  by  the  balance  of  the  people  of  Virginia.  For  that  reason  I  do  not  intend 
to  vote  for  any  of  these  special  appropriations  to  any  of  these  special  interests. 

]\Ir,  Hamilton:    ^Nlr.  Chairman.  I  would  like  to  say  a  few  words  in  reply  to  the 


1758 


DEBATES  OF  THE  CONSTITUTIONyiL  CONVENTION  OF  VIRGINIA. 


gentleman  from  Rockingham  (Mr.  Keezell).  I  think  the  members  of  the  Convention 
understand  my  position  thoroughly  and  fully.  I  have  never  been  willing  to  raise  my 
voice  or  my  hand  against  the  University  of  Virginia,  even  if  I  thought  the  matter  was 
wrong  on  principle;  and  I  have  never  done  it.  I  have  kept  my  mouth  shut.  I  was 
compelled  to  vote  against  such  an  appropriation  and  that  has  been  my  position.  If  the 
appropriation  has  been  brought  in  originally  embracing  the  Virginia  Military  Institute 
I  should,  in  the  first  place,  have  had  to  vote  against  it.  But  if  the  Convention  thinks 
it  is  right  tO'  make  such  an  appropriation  permanently  in  the  Constitution,  if  I  must 
accept  the  idea  that  my  views  and  my  principle  on  that  subject  are  wrong,  then  I  say, 
do  not  do  a  great  act  oi  injustice,  which  will  carry  bitterness  and  mortification  to  the 
heart  of  every  old  cadet  who  has  ever  been  at  the  Virginia  Military  Institute.  We  do 
not  come  and  ask  special  favors,  which  the  gentleman  from  Rockingham  speaks  of. 
We  do  not  ask  for  special  favors.  We  are  willing  to  stand  up  and  take  care  of  our- 
selves, provided  other  people  are  not  given  advantages  rather  which  discriminate 
against  us. 

But,  Mr.  Chairman,  if  the  appropriation  goes  in  here  for  the  University  of  Vir^ginia, 
and  the  Virginia  Military  Institute  is  left  out  of  it,  you  might  as  well  write  the  death 
sentence  of  that  magnificent  school,  for  in  the  future  people  will  say  the  Constitutional 
Convention  of  Virginia  refused  to  recognize  it,  while  it  did  recognize  its  other  old 
complete  State  colleges  and  institution. 

it  is  not  that  we  are  asking  favors.  We  are  asking  justice.  We  are  asking  even- 
handed  treatment,  and  if  you  think  it  is  right  to  make  these  permanent  appropriations 
to  such  institutions,  if  that  is  your  principle,  then  we  merely  ask  that  m  doing  so  you 
will  do  no  injustice  and  make  no  undue  discrimination.    That  is  all  we  ask. 

I  feel,  Mr.  Chairman,  that  more  than  half  of  all  I  am,  or  all  I  have  ever  been,  is 
due  to  my  training  at  the  Virginia  Military  Instftute,  and  what  I  learned  there.  I  was 
not  a  beneficiary  of  the  State's  aid.  I  have  never  been  the  beneficiary  of  the  aid  of 
anybody  except  my  father  and  mother;  but  I  stand  here  to  say  that  if  you  pass  this 
appropriation  for  the  Universitj^  and  leave  out  the  Virginia  Military  Institute,  you  had 
as  well  wipe  it  off  of  your  statue  books  and  make  no  appropriation,  but  let  it  wind  up 
in  the  glories  of  the  past.  For  one,  sir,  if  that  action  is  taken,  I  will  never  forgive  it 
if  I  live  a  hundred  years, 

Mr.  Garnett:  Mr.  Chairman,  as  a  members  of  the  corps  of  cadets  who  received 
his  diploma  at  the  battle  of  Newmarket,  in  the  shape  of  a  Yankee  bullet,  I  rise  toi 
s.econd  the  efforts  of  my  friend  from  Petersburg  (Mr.  Hamilton)  in  advocacy  of  the 
am.endment  he  has  proposed  before  this  body.  In  doing  so  I  want  to  say  that  while 
I  am  an  ardent  advocate  of  this  measure  I  was  equally  as  ardent  a  friend  of  the  Uni- 
versity of  Virginia,  and  voted  for  that  appropriation  with  great  pleasure. 

In  reply  to  my  friend  from  Rockingham  (Mr,  Keezell),  I  wish  to  say  that  I  think 
I  can  convince  him  that  he  will  not  be  violating  any  duty  confided  to  him  by  his  people 
in  voting  for  this  appropriation  or  in  advocating  it;  for,  if  I  understand  the  gentleman 
correctly,  he  has  said  than  in  every  Legislature  of  which  he  has  been  a  member  he  has 
voted  for  an  increased  appropriation  to  the  University  of  Virginia  year  by  year,  and  for 
these  other  appropriations,  and  we  all  know  the  fact —  the  records  of  the  State  disclose 
the  fact  that  the  gentleman  has  been  returned  here  by  his  constituencies  time  and  time 
again,  and  honored  with  the  position  which  he  now  holds  in  this  body,  and  they  have 
thereby  endorsed  his  action  in  appropriating  money  to  the  University  of  Virginia  and 
to  the  Virginia  Military  Institute, 

Mr.  Keezell:  I  distinctly  stated  I  had  no  possible  objection  to  voting,  and  have 
time  and  again,  voted  liberal  appropriations  to  both  of  these  institutions.  But  I  believe 
it  is  a  legislative  and  not  a  constitutional  function,  and  for  that  reason  I  was  opposed  to 
making  a  discrimination  in  reference  to  these  institutions  and  against  the  public  free 
schools,  and  not  putting  them  on  the  same  plane. 

Mr.  Garnett:  I  understood  the  gentleman,  and  I  do  not  agree  with  him.  We  have 
provided  for  the  public  free  schools  in  the  Constitution  which  we  are  now  making.  We 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  1759 

have  appropriated  the  interest  on  the  literary  fund,  and  in  addition  not  less  than  ten 
cents  on  the  hundred  dollars,  which,  together  with  other  sums  gotten  by  the  schools, 
will  amount  to  nearly  two  million  dollars,  for  the  public  schools  of  the  Commonwealth 
of  Virginia. 

Mr.  Keezell:    I  am  sure  the  gentleman  does  not  wish  to  make  a  misisfatement. 

He  says  that  that  amount  will  be  in  the  neighborhood  of  tw^o  million  dollars.  If 
he  will  consider  for  one  moment  he  will  see  that  it  will  not  make  anything  like  one 
million  dollars. 

:Mr.  Garnett:    I  was  considering  the  fines  and  other  local  sums  that  go  to  making 
it  up. 

Mr.  Keezell:  Even  with  those  it  will  not  make  one  million  dollars. 
Mr.  Garnett:  Mr.  Chairman,  I,  for  one,  want  to  record  myself  as  being  an  earnest 
advocate  of  the  public  free  school  system  of  the  State;  and  gentlemen  of  the  committee, 
I  believe  the  time  has  come,  or  will  soon  come,  wnen  the  people  of  the  State  of  Virginia 
will  demand  of  us  a  larger  appropriation  for  the  public  schools.  There  is  no  tax  that 
I  have  ever  paid,  small  as  it  may  have  been,  with  more  pleasure  than  that  which  goes 
to  the  benefit  of  public  free  schools;  and  I  have  been  so  situated  as  to  derive  very 
little  personal  benefit  from  that  tax,  in  the  education  of  my  children. 

I  wish  to  state  to  the  committee  that,  coming  from  a  section  of  the  country  remote 
from  the  University  of  A^irginia,  and  from  among  a  people  largely  in  such  an  impover- 
ished condition  that  they  have  not  been  able  to  take  advantage  of  the  benefits  of  that 
institution  in  the  education  of  their  sons,  I  have  never  heard  from  one  man  in  that 
whole  region  any  opposition  to  the  appropriations  that  have  been  made  here  for  the 
University  of  Virginia,  year  by  year;  and  there  has  been  no  representative  from  that 
section  of  the  State  who  has  not  voted  to  susitain  these  appropriations  to  the  institutions 
of  the  State,  and  who  has  not  been  accorded  by  the  people  who  sent  him  here  perfect 
satisfaction  with  his  course,  and  re-elected  him  time  and  again;  but  I  want  to  say  that 
I  do  not  think  we  have  anything  to  fear  from  the  people  in  this  matter.  Year  by  year 
these  appropriations  have  been  made  by  the  Legislature,  and  we  are  but  endorsing 
their  effort  and  sustaining  their  action  in  this  matter.  My  friend  from  Rockingham 
(Mr.  Keezell)  endorses  what  has  been  done  in  that  way;  and  yet,  come  what  may  come, 
the  people  of  the  State  of  Virginia  intend  to  take  care  of  the  public  educational  insti 
tutions  of  the  State.  I  believe  the  time  will  never  come  when  the  good  people  of  the 
State  of  Virginia  will  forsake  her  public  educational  institutions.  Whatever  may  be 
the  condition  of  the  State  we  cannot  afford  to  lay  down  that  burden.  We  must  take 
it  up  and  support  these  educational  institutions. 

I  hope,  as  has  been  so  ably  said  by  my  friend  from  Petersburg  (Mr.  Hamilton), 
that  there  will  be  no  invidious,  distinctions  made  here,  but  that  you  will  recognize  the 
fact  that  that  great  school,  which  has  done  so  much  for  the  educational  interests  of 
the  State  of  Virginia,  and  furnished  to  the  Confederate  Army  some  of  the  ablest  and 
brightest  ornaments  that  defended  our  homes,  is  a  part  and  parcel  of  the  State  of  Vir- 
ginia, as  well  as  her  other  learned  institutions,  and  that  you  will  put  in  the  Constitu- 
tion the  provision  offered  by  my  friend. 

Mr.  Green:  Mr.  Chairman,  it  seems  to  me  it  is  unfortunate  that  this  discussion 
of  a  question  in  which,  in  m^y  opinion,  the  State  is  so  seriously'  interested  should  take 
any  tinge  of  rivalry  between  institutions.  I  believe,  sir,  that  no  State  can  perform 
a  higher  duty,  and  no  Legislature  or  constitutional  body  can  bestow  a  greater  boon 
upon  the  State  than  to  take  out  from  the  midst  of  its  people  as  many  as  it  can  and 
educate  them  in  the  higher  order  of  intelligence.  I  am  one  of  the  men  who  believe 
that  an  A.  M.  who  comes  away  from  the  University  of  Virginia,  imbued  with  the 
learning  it  gives  him,  with  the  love  of  literature  and  the  knowledge  of  history,  with 
the  high  aspirations  which  all  those  things  bring,  is  worth  more  to  the  State  of  Vir- 
ginia than  500  common  school  teachers  who  are  teaching  tricks  of  a,  b,  c  upon  black- 
boards. Those  men  all  stand,  sir,  as  the  high  water  mark  to  which  the  State  must  look, 
and  to  v/hich  all  the  citizensi  of  the  State  can  turn  for  guidance,  and  with  admiratioii 


1760 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


and  love.  I  voted,  therefore,  sir,  with  pleasure — eagerly  did  I  vote — for  the  retention 
of  the  full  amount  that  we  could  give  to  the  University.  I  wish  we  could  give  her 
$100,000. 

Let  me  call  the  attention  of  the  gentlemen  to  the  fact  that  we  people  from  down 
south  of  the  Potomac  have  no  millonaires  to  endow  our  schools.  We  have  no  men 
whose  sons  have  gone,  and  who  themselves  have  gone,  to  those  institutions,  and  who 
have  imbibed  the  love  which  I  am  gratified  to  see  these  gentlemen  show  for  their  insti- 
tutions, and  are  willing,  therefore,  when  death  lays  hands  upon  them,  and  some  of 
them  even  before,  to  turn  over  to  the  support  of  these  institutions  which  have  nur- 
tured them  and  made  them  what  they  are,  a  large  portion  of  their  fortune.  If  he 
State  does  not  support  its  institutions  they  will  never  be  supported.  If  the  State  does 
not  build  them  and  maintain  them  and  aggrandize  them  as  she  can,  and  as  wealth 
accumulates,  they  will  necessarily  go  downward  and  lose  influence  prestige  and  cannot 
maintain  themselves. 

I  repeat  sir,  that  I  voted  with  pleasure  ,and  I  am  glad  this  Convention  did  it,  to 
maintain  the  appropriation  to  the  University.  I  will  vote  with  equal  pleasure  to  main- 
tain the  appropriation  to  the  Military  Institute.  Mr.  President,  I  remember,  when 
I  was  younger  than  I  am  now,  I  was  called  from  civil  life  intO'  the  army.  I  did  not 
know  what  "hep"  meant.  I  was^  brought  here  and  put  as  a  private  at  the  fair  grounds, 
and  my  drill  masters  were  the  boys  who  came  from  the  Virginia  Military  Institute. 
Those  boys  came  down  in  a  body,  under  their  instructors,  and  took  charge  of  the  men 
who  were  to  make  Lee's  army,  and  trained  them  and  disciplined  them  until  they  had 
made  them  into^  soldiers.  In  the  meantime,  sir,  when  age  had  come  to  those  boys, 
they  went  with  those  brave  soldiers  upon  the  battlefields  of  Virginia.  I  shall  never 
forget  that,  and  I  shall  never  cease  to  believe  that  Virginia  owes  to  that  institution  a 
debt  of  gratitude  for  that  which  she  can  never  pay.  I  never  see  one  of  those  boys  in 
his  small  clothes  that  I  do  not  feel  like  taking  my  hat  off  to  the  memory  of  the  fellows 
who  trained  me  into^  my  soldier  life. 

Who  knows  when  Virginians  may  be  called  to  the  tented  field  again?  This  is  an  age 
of  war.  Talk  about  it  being  a  commerical  age!  It  isi  a  commercial  age  in  which  com- 
merce is  to  be  gained  by  arms.  At  any  time  Virginia  may  be  called  upon  to  supply  her 
quota  of  armed  soldiers  again.  When  she  does,  she  has  a  ready  made  corps  of  instructors 
at  the  institute.  Let  us  not  only  maintain  it,  but  let  us  build  it  up  to  higher  things. 
Let  us  give  all  that  can  possibly  be  given.  Let  us  support  it  in  every  way  possible. 
Let  us  remember,  too,  when  we  talk  about  it,  that  both  of  these  institutions  are  a 
part  of  Virginia.  Both  of  them  constitute  a  part  of  her  educational  facilities.  Let 
us  by  all  means  sustain  them  both.  Let  us  give  them  what  we  can,  and  when  the  time 
comes  let  us  increase,  as  far  as  we  possibly  can,  the  appropriation  of  both  institutions. 

Mr.  Fairfax:  Mr.  Chairman,  I  earnestly  request  members  of  the  Convention  to 
allow  a  separate  vote  on  this  question.  They  have  voted  separately  for  the  appropria- 
tion for  the  University  of  Virginia.  I  voted  against  that  appropriation  for  the  simple 
reason  that  I  did  not  think  it  proper  to  put  it  in  the  Constitution.  I  do  not  believe 
the  friends  of  the  Virginia  Military  Institute  fear  the  Legislature  of  Virginia.  I  do  not 
believe  for  one  moment  that  they  fear  the  Legislature  will  not  make  an  appropriation. 
What  would  it  be  if  it  is  cast  aside  by  the  State  and  not  given  State  support?  It  has  been 
built  up  since  the  War  Between  the  States  entirely  without  special  appropriations  by 
the  State.  It  has  been  built  up  by  the  earnest  and  active  work  of  the  people  who  have 
that  business  in  charge.  They  have  not  called  upon  the  Legislature  for  anything  when 
the  Legislature  has  not  come  to  their  rescue  and  granted  it;  but  they  have  made  no 
great  demands  upon  the  Legislature  at  any  time.  The  institution  has  worked  its  way  up 
until  it  is  a  very  important  institution  in  the  State;  and  as  long  as  this  committee  has 
seen  fit  to  put  the  University  upon  a  plane  higher  than  any  of  the  rest  of  the  institutions 
in  the  State,  I  beg  the  committee  will  give  a  vote  upon  the  appropriation  or  non-appro- 
priation to  the  Virginia  Military  Institute,  and  not  connect  it  with  other  institutions. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGINIA. 


1761 


Let  them  come  along  afterwards.  I  do  not  wish  to  detain  the  committee,  but  it  will 
take  but  a  few  moments  to  hare  these  separate  votes,  and  I  trust  they  may  be  had. 

Mr.  Glass:  Mr.  Chairman,  on  behalf  of  those  members  of  the  Committee  on  Public 
Education  who  concur  in  the  report  giving  the  University  of  Virginia  recognition  in 
the  Consiitution,  I  most  earnestly  approve  the  suggestion  made  by  the  gentleman  who 
has  just  taken  his  seat  (Mr.  Fairfax).  I  do  not  think  the  University  of  Virginia  should 
have  this  recognition  in  the  Constitution  dependent  upon  the  amendment  proposed  by  the 
gentleman  from  Petersburg.  I  do  not  propose  at  this  time  to  argue  against  a  constitu- 
tional appropriation  to  the  Virginia  Military  Institute;  but,  in  view  of  the  absence  from 
the  Convention  of  so  many  members  when  this  matter  came  up  for  discussion  on  Sat- 
urday last,  I  ask  the  attention  of  members  to  a  very  brief  statement  of  facts — a  state- 
ment of  facts  which  may  be  taken  as  a  response  to  some  of  the  statements  made  by 
gentlemen  who  have  advocated  the  pending  amendment. 

Your  Committee  on  Public  Education  expressly  denies  that  its  report  embodies  any 
sort  of  discrimination  against  any  institution  in  the  State.  I  call  attention  to  the  signi- 
ficant fact  that  although  on  the  Education  Committee  there  is  a  member  of  the  board 
of  visitors  of  the  Virginia  Polytechnic  Institute,  a  member  of  the  board  of  visitors  of 
William  and  Mary  College,  and  gentlemen  identified  in  interest  and  sentiment  with  the 
Farmville  school,  when  the  facts  wei'e  known  and  the  reasons  given,  each  one  of  them 
declined  to  embarrass  the  University  of  Virginia  by  putting  forward  a  proposition  on 
behalf  of  their  respective  institutions,  such  as  the  proposition  presented  by  the  gentle- 
man from  Petersburg  (Mr.  Hamilton)  in  behalf  of  the  Virginia  Military  Institute. 

Gentlemen  identified  with  the  Virginia  Polytechnic  Institute,  one  of  the  most  useful 
public  institutions  in  the  State,  having  in  its  curriculum  a  system  of  manual  training 
directly  related  to  the  public  school  system;  gentlemen  identified  with  the  Normal  School 
at  Farmville,  in  intimate  connection  with  the  public  school  system,  and  gentlemen 
identified  with  and  on  the  board  of  visitors  of  William  and  Mary  College,  all  realized 
that  putting  the  University  of  Virginia  in  your  Constitution  in  this  way  was  no  sort 
of  discrimination  against  any  of  those  institutions,  because  not  one  of  them  occupies 
the  same  relation  to  this  question  that  the  University  of  Virginia  occupies. 

I  have  nothing  to  say  in  disparagement  of  the  fame  or  the  efficiency  of  the  Virginia 
Military  Institute;  but  this  question  is  not  related  to  the  glory  of  any  institution  in  war 
or  in  peace.  It  is  a  plain,  practical  business  question.  The  Virginia  Military  Institute 
is  not  in  antagonism  with  the  University  of  Virginia,  nor  the  University  of  Virginia  to 
it.  If  the  contrary  is  true,  then  one  or  the  other  of  these  institutions  should  be  dis- 
continued; for  Virginia  ought  not  to  own  two  institutions  of  learning  which  are  in 
antagonism  to  each  other.  Nor  is  the  Virginia  Military  Institute  in  antagonism  to  a 
single  sectarian  institution  in  the  State.  On  the  contrary,  there  is  not  a  single  secta- 
rian institution  in  the  State  that  is  not  in  antagonism  to  the  University  of 
Virginia.  I  mean  in  just  antagonism,  not  to  the  University  as  such;  but  to  the  policy 
which  the  University  of  Virginia  is  compelled  to  pursue.  I  use  the  word  "antagonism" 
now  in  the  sense  that  I  used  the  word  "hostility"  the  other  day,  each  being,  perhaps,  a 
less  polite  term  for  "competition."  The  reason  for  putting  the  University  of  Virginia 
in  the  Constitution  for  a  stated  sum  is  to  enable  us  to  discard  the  policy  which  provokes 
the  rightful  antagonism  of  sectarian  colleges.  Now,  note  the  difference.  It  is  clear;  it 
is  wide.  No  sectarian  college  has  any  hostility  to  the  Virginia  Military  Institute;  hence 
there  is  no  need  to  put  it  in  the  Constitution.  They  are  all  in  competition  with  the 
University,  owing  to  a  policy  which  the  University  is  compelled  to  pursue  and  which 
cannot  be  discontinued  unless  the  annuity  to  it  from  the  State  is  made  secure  by  con- 
stitutional provision;  hence  the  necessity  for  ptitting  the  University  in  the  Constitution. 

The  Convention  has  put  the  University  in  because  it  ought  to  go  in;  and  it  ought 
to  go  in  because  it  occupies  a  peculiar  and  an  entirely  different  relation  to  this  question 
from  any  other  instituti9n. 

While  I  am  on  my  feet,  Mr.  Chairman.  I  want  to  indicate  briefly  to  this  Convention 
w^hat  the  University  of  Virginia  has  to  contend  against.    I  have  already  stated  that  it 


1762 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


is  antagonized  (and  justly  so)  by  every  sectarian  institution  of  learning  in  the  State, 
because  its  necessitated  policy  is  not  properly  the  policy  of  a  University,  and  I  have 
asserted,  on  the  contrary,  that  the  Virginia  Military  Institute  is  not  antagonized 
by  a  single  one  of  these  sectarian  institutions,  because  it  does  not  compete  with  them. 
But  in  addition  to  this  competition  at  home  from  institutions  from  which  the  University 
ought  to  get  its  material,  it  has  the  antagonism  of  the  great  universities  of  the  North. 
I  hold  in  my  hand  a  statement  of  the  endowment  of  these  various  universities. 

Harvard  has  $14,000,000  of  endowment,  with  an  annual  income  of  $1,376,000;  Yale 
has  $5,000,000,  with  an  annual  income  of  $770,000;  The  University  of  Pennsylvania  has 
an  income  of  $520,000;  The  Leland-Stanford  University  has  $30,000,000;  Cornell  has  an 
annual  income  of  $810,000;  Columbia  University  has  an  annual  income  of  $929,000;  while 
the  University  of  Virginia  has  an  income  of  but  $145,000,  of  which  $50,000  comes  form 
the  State. 

Mr.  O'Flaherty:  Does  the  Constitution  of  any  of  those  States  in  which  those  insti- 
tutions are  situated  make  any  provisions  for  those  schools? 

Mr.  Glass:  They  are  rich  enough  to  dispense  with  State  aid;  yet  I  am  told  that  in 
three  States  they  get  it.  I  have  a  statement  here,  gotten  from  the  ofSce  of  the  Superin- 
tendent of  Public  Instruction  of  tnis  State,  to  the  effect  that  the  State  of  Maryland  has 
for  a  number  of  years  guaranteed  to  Johns-Hopkins  University  an  annual  appropriation 
of  $60,000,  notwithstanding  the  fact  that  the  State  of  Maryland  does  not  own  one  dime 
of  property  interest  in  that  institution. 

I  submit  that  when  my  friend  from  Rockingham  county  (Mr.  Keezell)  tells  us  we  are 
about  to  rob  the  State  treasury  for  the  benefit  of  the  higher  institutions,  and  in  dire 
antagonism  to  the  public  school  system  of  the  State,  and  then  admits  that  the  appro- 
priation which  we  are  seeking  to  put  in  here  is  not  one  dime  in  excess  of  the  appropria- 
tion which  he  has  voted  to  the  University  year  after  year  as  a  member  of  the  Legisla- 
ture, he  is  hair-splitting.  It  does  not  meet  the  argument  we  have  presented  here  to  show 
that  the  University  of  Virginia  ought  to  be  made  secure  in  its  annuity  in  order  that  it 
may  be  enabled  to  free  itself  from  a  certain  sort  of  antagonism  from  forces  and  in- 
fluences that  ought  to  be  friendly  to  it,  and  ought  to  be  helpful  to  it. 

I  do  hope  that  the  suggestion  offered  by  the  gentleman  from  Loudoun  will  be  acted 
upon,  and  that  the  friends  of  the  Virginia  Military  Institute  in  the  Convention  will  not 
take  the  position  that,  jUst  because  they  cannot  get  constitutional  recognition,  they  will 
therefore  prevent  the  University  of  Virginia  from  getting  such  recognition. 

Mr.  Mcllwaine:  Mr.  Chairman,  I  have  not  one  word  to  say  against  the  University 
of  Virginia  nor  against  the  appropriation  to  the  University,  except  on  the  ground  upon 
which  I  put  it  the  other  day,  and  that  was  simply  that  I  do  not  think  the  University  or 
any  of  the  State  institutions  ought  to  be  taken  from  under  the  governmental  power  of 
the  State. 

The  Chairman:    The  question  is  on  the  amendment  of  the  gentleman  from  Warren 
(Mr.  O'Flaherty)  to  include  the  Female  Normal  School  at  Farmville. 
The  amendment  was  rejected. 

The  Chairman:  The  question  recurs  on  the  amendment  of  the  gentleman  from 
Petersburg  (Mr.  Hamilton)  to  include  the  Virginia  Military  Institute. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ■ 
ayes,  38;  noes,  ou. 

Mr.  Hamilton's  amendment  was  agreed  to. 

On  motion  of  Mr.  O'Flaherty  the  committee  rose. 

The  hour  oi  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow, 
Friday,  December  10,  1902,  at  10  o'clock  A.  M. 


FRIDAY,  January  10,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


ires 


On  motion  of  :\Ir.  IMcIlwaine,  the  Convention  resolved  itself  into  a  Committee  of  tlie 
TMioIe  for  the  further  consideration  of  the  report  of  the  Committee  on  Education  and 
Public  Instruction.  :\Ir,  Parks  in  the  chair. 

:\Ir.  James  W.  Gordon:  I  move  to  strike  from  the  committee's  report  the  tvi-elfth 
section,  amended  by  the  insertion  of  the  Virginia  Military  Institute. 

Mr.  R.  \\  alton  'Moove:  Mr.  Chairman,  can  that  motion  be  divided?  It  seems  that 
two  institutions  are  now  embraced  in  that  section. 

The  Chairman:    The  Chair  rules  that  the  motion  cannot  be  divided. 

Mr.  Barbour:  Mr.  Chairman,  I  raise  the  point  of  order  that  the  motion  is  not  in 
order  at  the  present  time.  The  first  question  arose  on  the  question  of  reinserting  the 
provision  which  had  been  stricken  out  in  Committee  of  the  Yrhole,  on  a  reconsideration, 
and  that,  by  order  of  the  committee,  was  reinserted.  Then,  after  being  reinserted,  the 
amendment  was  offered  adding  the  Virginia  Military  Institute,  and  that,  by  a  separate 
vote  of  the  committee,  was  inserted.  Both  those  actions  having  been  taken.  I  think  the 
only  way  in  which  this  matter  can  be  gotten  at  is  by  a  motion  to  reconsider  those  sepa- 
rate votes. 

The  Chairman:  The  Chair  sustains  the  point  of  order  of  the  gentleman  from 
Culpeper — that  it  can  only  be  gotten  at  on  a  motion  to  reconsider. 

Mr.  James  V.  Gordon:  3Jr.  Chairman,  this  matter  in  the  end  will  have  to  be  de- 
cided by  the  votes  of  the  members  of  the  Committee  of  the  T^'hole,  and  although  I  dis- 
like to  do  so.  I  shall  take  an  appeal  from  the  decision  of  the  Chair  on  that  point  and 
submit  it  to  the  decision  of  the  committee. 

The  chairman:  The  question  before  the  committee  is,  shall  the  ruling  of  the 
Chair  be  sustained  as  the  judgment  of  the  committee? 

The  ruling  of  the  Chair  was  sustained;  there  being,  on  a  division,  ayes,  35; 
noes,  30. 

The  Chairman:    Are  there  any  further  amendments  to  Section  12? 

Mr.  Mcllwaine:  If  there  are  none,  sir,  before  making  a  motion  in  regard  to  the 
report,  I  wish  to  put  myself  entirely  right  with  the  Committee  of  the  Whole  on  the 
subject  of  my  relation  to  the  University  of  Virginia. 

Nothing  more  would  have  been  necessary  had  it  not  been  for  certain  intimations  in 
the  speeches  of  two  of  the  gentlemen  on  the  floor,  and  in  order  that  there  may  be  no 
misunderstanding  whatever,  I  want  to  read  a  resolution  which  I  formulated  during  the 
last  summer,  and  which  was  presented  to  the  gentleman  from  Fairfax  (Mr.  Moore),  a 
member  of  the  board  of  visitors  at  the  University  of  Virginia,  and  by  him  submitted  to 
certain  of  the  members  of  the  faculty  of  the  University  of  Virginia  for  their  approval 
or  disapproval. 

I  was  in  hope,  sir.  that  this  resolution  might  be  brought  before  the  Convention  by 
the  committee  of  which  I  was  chairman,  but  the  committee,  for  reasons  good  in  their 
sight,  did  not  see  fit  to  do  so.    The  resolution  reads  as  follows: 

The  University  of  A'irginia  shall  constitute  a  public  trust,  and  its  organization  and 
government  shall  be  continued  in  the  form  and  character  prescribed  by  the  organic  act 
creating  the  same,  passed  January  25,  1819,  and  the  several  acts  amendatory  thereof, 
subject  to  such  legislative  control  as  may  be  necessary  to  insure  compliance  with  the 
terms  of  its  foundation  and  the  proper  investment  and  security  of  its  funds.  It  shall  be 
entirely  independent  of  all  political  or  sectarian  influence  and  kept  free  therefrom  in  the 
appointment  of  its  visitors  and  in  the  administration  of  its  affairs. 

Down  to  thai  point,  sir,  the  language  is  largely  taken  from  the  Constitution  of  the 
State  of  California.    I  go  on  then: 
•Tt  shall"  

And  I  wish  the  gentlemen  would  pay  particular  attention  to  this  paragi'aph  

It  shall  be  what,  in  its  creation,  it  was  designed  to  be,  the  head  of  the  educational 
system  of  the  Commonwealth,  including  its  classical  academies  and  chartered  colleges, 
and  to  this  end  the  General  Assembly  may.  from  time  to  time,  pass  such  enactments  and 
make  such  appropriations  for  its  benefit  as  its  full  efficiency  demands. 


1764 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


That  resolution,  sir,  was  written  with  a  warm  heart  and  with  an  earnest  desire  to 
see  the  University  of  Virginia  not  only  at  the  head  of  the  common  school  system  of  the 
State  of  Virginia,  but  at  the  head  of  the  educational  system  of  Virginia. 

I  should  have  been  greatly  gratified  if  such  a  provision  as  this  could  have  been  en- 
grafted into  the  Constitution.  I  am  sure  that  it  would  have  met  with  the  approval  of 
every  friend  of  education  in  this  State,  and  I  merely  read  it  now  to  the  committee  for 
the  purpose  of  letting  them  see  my  personal  attitude  towards  that  great  institution. 

Mr.  Cameron:  I  also  feel  it  incumbent  on  me,  in  a  very  few  words,  to  make  expla- 
nation of  the  reason,  and  of  my  regret  that  it  existed,  why  I  could  not  yesterday  give  my 
support  to  the  proposition  for  this  support  to  the  University  of  Virginia. 

Individually  i  have  for  that  institution  the  greatest  love  and  veneration.  I  am  not 
a  graduate  of  it,  because  at  the  time  when  youth  seeks  such  advantages  as  are  to  be 
offered  by  a  university  education  another  alma  mater  called  for  my  services,  and  for  four 
years  of  my  life  which  should  have  been  spent  in  preparation  for  the  life  to  come  were 
given  to  the  military  services  of  the  State.  Since  then  it  has  been  my  mission  once  and 
again  to  be  placed  where  opportunity  existed  for  service  to  the  University.  On  one 
occasion  its  very  existence  was  at  stake,  and  it  is  known  by  its  friends  that  I  did  not 
hesitate  to  spring  into  the  breach  and  furnish  the  necessary  authority  and  influence  to 
save  it  unimpaired.  But  I  was  confronted  yesterday  with  the  alternative  of  withholding 
my  vote  from  this  appropriation  or  violating  a  constitutional  conviction  as  deep  as 
my  nature.  I  do  not  believe  that  to  any  individual  or  any  educational  purpose  a  Constitu- 
tion should  make  any  appropriation.  I  believe  that  the  Legislature  should  be  left  in 
charge  of  the  disposition  of  the  current  funds  of  the  State  as  circumstances  and  ex- 
perience may  dictate. 

I  do  not  admit  any  inconsistency  between  this  position  and  that  which  I  hold  in  re- 
gard to  fixing  the  salaries  of  the  Governor  and  the  judges,  under  the  Constitution. 
The  Governor  is  the  head  of  one  great  equal  co-ordinate  department  of  the  government 
and  the  Supreme  Court  of  another;  and  that  they  should  be  protected  from  invasion  by 
the  third  department  and  should  be  put  beyond  all  possibility  of  starvation  to  the  will 
of  that  department  is  a  self-evident  truth  to  any  one  brought  up  in  the  political  school 
in  which  I  was  educated.  Therefore  I  feel  that  there  was  no  inconsistency,  but,  on  the 
contrary,  it  seems  to  me  to  imply  lack  of  the  sense  of  proportion  and  of  a  proper  sense 
of  discrimination  in  those  minds  who  could  see  no  difference  between  providing  for  the 
perpetuation  in  freedom  and  independence  of  the  other  great  departments  of  the  govern- 
ment and  the  provision,  without  regard  to  such  circumstances,  as  might  arise  in  the 
future  for  an  institution  which,  useful  as  it  is,  is  after  all  but  an  institution  of  the 
State. 

Mr.  Chairman  and  gentlemen,  I  am  sorry  to  have  detained  you  even  for  this  long; 
but  I  thought  this  was  due  to  myself. 

Mr.  Dunaway  moved  that  the  committee  now  rise  and  that  the  chairman  report  to 
the  Convention  that  the  committee  has  finished  the  consideration  of  the  report  of  the 
Committee  on  Education  and  Public  Instruction. 

The  motion  was  agreed  to  and  the  committee  yose. 

The  President  having  resumed  the  chair,  Mr,  Parks  reported  that  the  Committee  of 
the  Whole  had  had  under  consideration  the  report  of  the  Committee  on  Education  and 
Public  Instruction  and  nad  finished  its  consideration. 

Mr.  Thomas  H.  Barnes:  Mr.  President,  I  move  that  the  Convention  take  up  and 
consider  the  report  of  the  Committee  on  the  Government  and  Organization  of  Counties, 
as  amended  by  the  Committee  of  the  Whole. 

The  motion  was  agreed  to. 

ARTICLE  VII. 
County  Organization. 

Section  1.  There  shall  be  elected  by  the  qualified  voters  of  each  county  one  sheriff, 
one  attorney  for  the  Commonwealth,  one  clerk  of  the  court,  one  county  treasurer,  who 


t 

DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OE  VIRGINIA.  1765 

shall  not  be  elected  nor  serve  for  more  than  two  consecutive  terms,  nor  shall  he  act  as 
deputy  of  his  immediate  successor;  and  there  shall  be  appointed,  in  a  manner  to  be  pro- 
vided by  law,  commissioners  of  the  revenue,  the  number  of  whom  and  whose  duties  and 
compensation  shall  be  such  as  may  be  prescribed  by  law;  one  superintendent  of  the  poor, 
and  one  county  surveyor. 

The  President:    The  question  is  on  agreeing  to  the  section  as  read  by  the  Secretary. 

Mr.  Quarles:  I  move  to  strike  out,  beginning  in  line  14  of  Section  1,  the  following- 
words:  "Who  shall  not  be  elected  nor  serve  for  more  than  two  consecutive  terms,  nor 
shall  he  act  as  deputy  of  his  immediate  successor." 

Mr.  Robertson:  Mr.  President,  perhaps  it  is  useless  for  any  member  of  this  Con- 
vention to  say  anything  further  with  reference  to  this  matter. 

The  substance  of  the  amendment  of  the  gentleman  from  Augusta  is  to  the  effect 
that  the  provision  of  Section  1,  whereby  it  is  provided  that  a  treasurer  shall  not  ba 
re-eligible  shall  be  stricken  out.  That  is  the  sum  and  substance  of  the  amendment  of 
the  gentleman  from  Augusta,  as  I  understand  it;  and  while  I  have  craved  the  indul- 
gence of  the  Convention  once  before  on  this  subject,  I  feel  such  a  deep  interest  in  it  that 
1  will  presume  to  say  a  few  words  more  in  reference  to  it. 

I  do  feel  that  we  ought  not  to  irrevocably  commit  this  Convention  to  the  principle 
which  is  involved  in  the  first  section  of  the  report  of  this  committee.  The  gentlemen 
who  were  present  Vv^hen  this  matter  w^as  up  before  are  familiar  with  the  arguments  that 
were  adduced  at  that  time,  but  we  have  a  very  much  larger  attendance  here  now  than 
we  have  had  before,  and  that  is  my  excuse  for  trespassing  upon  the  time  of  this  body 
again.    I  do  want  a  reconsideration  of  that  matter. 

Now,  Mr.  President,  I  respectfully  submit  that  it  is  wrong  in  principle,  however  it 
may  have  been  in  practice,  to  put  into  our  Constitution  a  proA'ision  that  any  officer  can- 
not be  elected  for  a  second  term.  An  argument  has  been  made  here  that  we  have  a 
provision  that  our  Governor  cannot  be  elected  to  succeed  himself.  In  my  opinion  that 
is  wrong  in  principle.  But  because  we  have  done  one  wrong,  and  because  we  have  kept 
in  the  Constitution  an  old  provision  which  has  been  there  for  a  number  of  years  with 
reference  to  the  Governor,  is  no  reason,  in  my  humble  judgment,  why  we  should  go 
further  and  carry  that  principle,  which  is  certainly  an  exceptional  principle,  into  the 
minor  offices  of  this  State. 

That  provision  in  reference  to  the  Governor,  Mr.  President,  was  put  into  our  Con- 
stitution when  our  people  were  very  much  afraid  of  the  power  of  the  Governor.  That 
fear  was  the  outgrowth  of  their  experience  when  this  State  was  a  colony;  and  the 
Governor  represented  the  crown;  and  even  when  we  became  a  separate  State,  we  still  had 
that  fear  of  the  chief  executive  officer  of  this  Commonwealth,  and  wanted  to  hedge  him 
around  in  every  manner  in  order  to  protect  the  people  against  possible  aggressions  on 
his  part.  But  I  respectfully  submit  that  the  time  for  even  that  has  gone  by,  and  that 
that  provision  ought  not  to  have  been  retained  in  our  Constitution.  But  when  we  come 
to  these  minor  officers,  our  county  officers  and  city  officers,  I  say  it  is  depriving  the  peo- 
ple of  Virginia  of  a  right  which  they  ought  to  have  to  re-elect  men  in  whom  they  have 
confidence,  whom  they  have  learned  by  experience  are  competent  to  fill  those  offices, 
whom  they  see  have  filled  them  well,  to  say  to  them  that  they  cannot  re-elect  those  men 
simply  because  some  gentlemen  on  this  floor  are  able  to  point  out  that  on  account  of  the 
duties  of  these  officers  there  is  some  tendency  to  evil  and  some  tendency  to  electioneering 
for  the  purpose  of  being  re-elected. 

Now,  I  submit  it  is  wrong  in  principle  to  say  that,  because  some  of  the  officers  of 
this  Commonwealth  in  the  discharge  of  their  duties  do  wrong,  we  ought  to  put  a  con- 
stitutional provision  here  with  reference  to  this  office  making  the  good  men  who  are 
elected  to  those  offices  ineligible  for  a  second  term  on  account  of  bad  men  who  are  put 
into  the  offices.  That  is  contrary  to  all  the  theories  of  popular  government.  I  am  not 
going  to  indulge  here  in  any  buncombe  talk  about  the  people,  and  about  this,  that  and 
the  other,  but  whatever  we  may  S3.y  about  it,  this  is  a  democratic  and  popular  form  of 
government.    We  have  decided  here  that  the  people  shall  elect  these  officers,  the  treas- 


1766  DEBATES  OF  THE  COjS^STITUTTOjSTAL  CONVENTIOISr  OF  VIEGINIA. 

hirers  of  counties  and  cities,  yet  in  the  next  breath  we  say  that  the  people  cannot  elect 
Jiim,  whether  he  be  good  or  bad;  that  the  people  cannot  reward  a  good  officer  by  a  re- 
election, but  must  turn  him  out  because,  forsooth,  the  nature  of  the  office  is  such  that 
men  are  prone  to  do  evil  in  it.  I  say  if  that  is  the  nature  of  the  office  we  ought  to  re- 
form the  nature  of  the  office. 

Mr.  Keezell:  May  I  call  the  attention  of  the  gentleman  from  Roanoke  to  the  fact 
that  this  provision  allows  his  re-election  for  one  term,  makes  him  eligible  for  two  con- 
secutive terms? 

Mr.  Robertson:  I  do  not  care  about  that,  sir.  The  same  principle  is  involved. 
I  want  it  so  that  a  man  may  be  elected  for  twenty  terms,  if  he  lives  that  long  and  proves 
an  efficient  officer. 

I  say  you  are  practically  saying  to  the  people  of  Virginia  that,  however  a  man  has 
discharged  the  duty  of  this  office,  he  cannot  be  re-elected  and  rewarded  for  having  dis- 
charged it  aright.  I  think  that  kind  of  argument  will  not  do.  It  is  practically  an 
argument  that  something  is  wrong  about  the  nature  of  the  office,  that  the  duties  of  the 
office  are  not  properly  prescribed,  that  there  is  something  in  the  nature  of  the  office 
which  keeps  it  from  being  the  kind  of  office  that  we  want.  That  is  really  the  kind  of 
argument  that  these  gentlemen  are  making. 

Now,  on  a  former  occasion,  I  suggested  to  this  body — and  it  was  impressed  on  my 
mind,  I  must  admit,  by  the  remarks  submitted  by  the  gentleman  from  Petersburg 
(Mr.  Hamilton)  referring  to  the  way  in  which  they  managed  things  in  the  city  of 
Petersburg;  I  had  had  the  same  view,  but  it  was  brought  home  to  me  in  a  very  strong 
way  by  the  remarks  he  made — that  the  effect  of  this  whole  matter  does  not  arise  from 
the  cause  which  these  gentlemen  think.  It  is  not  because  our  treasurers  are  re-elected 
for  any  number  of  terms.  It  is  because  the  State  of  Virginia  has  not  adopted  a  proper 
system  of  book-keeping  and  accounting,  in  order  to  see  that  these  people  do  their  duties 
properly.  I  respectfully  submit  that  is  the  true  business  solution  of  this  whole  matter. 
Take  a  Lank  or  a  railroad  company,  or  any  other  business  organization  that  employs 
men  to  handle  and  to  collect  its  money.  If  a  man  were  to  make  the  proposition  to  the 
board  of  directors  of  such  companies  that  they  should  be  tied  down  so  that  they  could 
not  re-elect  him,  the  thing  would  be  treated  with  scorn  and  nobody  would  think  of 
listening  to  him  for  a  moment.  The  way  they  protect  themselves  is  to  see  that  these 
people  make  a  frequent  accounting.  These  companies  that  have  men  scattered  about 
have  what  they  call  traveling  agents  or  auditors.  Those  whose  employes  are  not  scat- 
tered about  the  country  are  in  some  local  place,  require  them  to  make  settlements  at 
frequent  intervals,  and  they  have  some  one  to  audit  the  accounts  of  those  employes  who 
understand  how  to  do  it. 

I  respectfully  submit  that,  instead  of  accepting  these  conclusions  on  this  proposition, 
we  ought  to  wait  until  we  can  get  the  benefit  of  the  advice  of  some  other  committee — 
I  suppose  the  Committee  on  Finance  would  be  the  proper  committee,  or  some  other  com- 
mittee of  the  body — ^as  to  the  proper  manner  in  which  the  county  accounts  can  be 
properly  kept. 

I  do  not  want  to  detain  the  committee,  but  under  the  present  system  it  is  a  well- 
known  fact,  taking  our  county  levies,  that  the  treasurers'  accounts  are  settled  before 
the  boards  of  supervisors  of  the  different  counties.  While  I  was  on  my  feet  here  once 
before,  a  gentleman  put  me  in  the  position  of  saying  that  I  was  trying  to  do  away  with 
the  board  of  supervisors.  I  repeat  what  I  then  said,  that  I  am  not  trying  to  do  away 
with  them;  but  I  do  say  that,  so  far  as  my  personal  experience  goes,  those  boards  are 
inadequate  to  discharge  the  duties  imposed  upon  them,  and  to  that  extent  they  are 
worthless,  in  my  opinion,  and  not  sufficient  and  adequate  to  audit  the  accounts  of  these 
public  officers.  We  need  an  addition  to  those  boards,  some  traveling  auditor,  some  man 
who  would  go  around  and  drop  in  on  the  treasurer  when  he  is  not  expecting  him.,  and 
require  him  at  any  moment  to  show  the  exact  condition  of  his  accounts.  I  cannot  go 
into  the  details  of  that.  I  am  not  sufficiently  familiar  with  book-keeping  and  accounting 
to  do  so,  but  I  do  believe  that  we  ought  not  to  deprive  the  people  of  the  right  to  re-elect 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


176? 


officers  who  have  faithfully  and  properly  discharged  their  duties  simply  because  bad 
men  have  been  allowed  to  commit  defalcations  on  account  of  our  not  watching  them  and 
making  them  settle  their  accounts  in  the  proper  manner. 

I  have  nothing  further  to  say  on  that  matter,  and  I  do  not  want  to  detain  the 
committee  longer,  but  it  does  seem  to  me  that  the  committee  will  make  a  mistake  in 
adopting  any  such  proposition  as  this. 

Mr.  Keezell:  Mr.  President,  I  am  sorry  that  this  matter  has  come  up  at  this  time, 
for  the  reason  that  during  the  discussion  of  the  matter  in  Committee  of  the  ^Miole 
I  took  some  part  in  it.  I  had  some  data  which  I  have  not  at  my  hand  now,  and  it  will 
be  impossible  for  me  to  get  it  at  this  time,  as  I  did  not  suppose  this  report  would  come 
up  this  morning.  What  I  shall  have  to  say  upon  it.  therefore,  will  be  at  a  very  great 
disadvantage,  owing  to  the  fact  that  I  have  not  the  information  in  such  shape  as  I 
feel  this  Convention  is  entitled  to  have  it;  but  as  the  question  is  up,  and  I  do  not  desire 
to  be  put  in  the  attitude  of  delaying  any  of  the  proper  work  of  this  Convention,  I  will 
simply  try  to  remind  those  members  of  the  Convention  who  were  absent  during  the 
time  when  the  matter  was  discussed  in  Committee  of  the  ^^Tiole  that  we  had  a  very 
full  and  through  discussion  of  this  question  of  the  eligibility  or  ineligibility  for  re- 
election of  treasurers  of  the  various  counties  of  the  Commonwealth;  that  it  was  dis- 
cussed at  considerable  length,  and  that,  instead  of  its  being  an  innovation,  as  would 
be  inferred  from  the  remarks  of  the  gentleman  from  Roanoke  (Mr.  Robertson),  if  not 
from  his  exact  lang-uage,  I  showed  to  the  Committee  of  the  Whole  at  that  time  that  a 
large  majority  of  the  most  important  States  of  the  Union  had  a  similar  provision  with 
reference  to  the  ineligibility  of  the  sheriff  or  the  treasurer,  whichever  was  the  col- 
lecting and  disbursing  officer  of  the  taxes  in  those  States. 

I  have  before  me  now  the  Constitutions  of  the  various  States,  and  could  refer  to 
them  if  I  had  the  time  to  do  so.  The  gentleman  from  Albermarle  CMv.  Boaz)  has 
kindly  handed  me  a  list.  I  am  probably  unfamiliar  with  the  list  as  he  has  prepared  it, 
and  I  will  be  glad  if  the  gentleman  will  later  on  present  it  himself:  but  I  may  state 
that  the  list  which  the  gentleman  has  here  will  show  that  in  a  large  number  of  the  most 
important  States  of  the  Union  it  has  been  found  necessary  to  limit  the  time  when  a 
man  who  has  the  collection  of  taxes  from  the  people  should  be  allowed  to  continue 
in  offi_ce.  There  must  have  been  some  reason  for  this,  or  there  would  not  have  been 
so  much  unanimity  in  the  important  States  in  engrafting  this  provision  into  their  Con- 
stitutions. 

What  would  be  the  effect  if  we  were  to  go  along  now  and  affirm  the  action  of  the 
Committee  of  the  AWnole?  There  is  not  a  treasurer  in  Virginia  now  who,  if  the  people 
wish  to  retain  him.  could  not  hold  office  for  ten  years  longer.  They  would  hold,  under 
their  present  elections,  as  I  understand  the  law.  until  the  1st  of  January,  1904.  They 
would  then  be  eligible  to  two  terms  of  four  years  each  from  the  1st  of  January,  1904, 
so  that  they  would  hold  ten  years  yet. 

So  you  see  we  are  not  undertaking  to  prevent  the  proper  rewarding  of  an  officer 
for  the  faithftil  discharge  of  his  duties,  because  we  give  him  an  opportunity  for  one 
endorsement  at  the  polls  by  a  re-election,  and,  if  he  has  been  faithful  heretofore,  a 
ten  year  lease  of  official  life. 

I  went  into  some  detail  at  the  time  the  Committee  of  the  Wliole  had  this  matter 
under  consideration. 

Mr.  Claggett  B.  Jones:  Are  you  not  mistaken  about  the  terms  of  office  expiring 
on  the  first  day  of  January,  1904?    Will  they  not  expire  on  the  first  day  of  Juh^  1903? 

Mr,  Keezell:  That  would  have  been  true  had  there  not  been  a  constitutionaJ 
amendment  adopted  at  the  November  election;  but  the  time  of  election  having  been 
changed  from  May  until  the  succeeding  fall,  the  understanding  of  the  Legislature  and 
my  understanding  of  the  proposition,  is  that  there  shall  be  six  months  added  to  the  term 
of  each  one  of  these  officers,  which  would  niake  their  term  expire  on  the  first  of  Jan- 
uary, 1904,  the  spring  elections  having  been  abolished. 

Mr.  President,  I  was  going  on  to  say  that  when  this  matter  was  up  before  the 


1768  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Committee  of  the  Whole  I  went  into  some  detail.  I  do  not  care  to  go  over  all  that 
again,  but  I  state  to  you  now,  that  under  our  present  system  of  accounting — and  if 
the  gentleman  from  Roanoke  (Mr.  Robertson)  will  take  the  trouble  to  go  and  look 
at  the  acts  of  Assembly  which  have  been  passed  here  in  the  last  fifteen  years  he  will 
find — that  you  cannot  put  any  more  stringent  provisions  into  the  law  requiring  settle- 
ments and  all  that  sort  of  thing  than  you  have  now;  and  that,  notwithstanding,  these 
requirements  are  absolutely  ignored  and  to  a  very  great  extent  rendered  utterly  worth- 
less. He  will  find  it  to  be  the  fact  that  a  county  treasurer  who  desires  to  do  it  has  the 
whole  matter  in  his,  own  hands,  in  the  question  of  settlement.  Generally  speaking, 
a  treasurer  will  manage  to  keep  himself  somewhat  straight  with  the  Auditor  of  Public 
Accounts,  but  you  will  find,  and  it  has  been  the  history  of  very  many  counties  of  the 
Commonwealth,  that  he  has  kept  himself  straight  with  the  Auditor  at  the  expense  of 
the  county  and  district  funds  in  the  county  where  he  is  located. 

It  is  almost  impossible  to  have  such  an  accounting  with  the  treasurer  as  is  an  ac- 
counting in  fact.  Take  a  count}'  like  the  one  I  represent  upon  this  floor,  in  which 
there  are  five  magisterial  districts,  in  which  there  are  five  school  districts,  in  which 
there  are  five  road  districts.  You  will  find  that  the  treasurer  fixes  a  different  day — 
(and  he  must  necesarily  fix  it  if  he  wants  to  make  a  settlement)— for  a  settlement 
witn  each  one  of  these  sub-divisions;  and  it  is  possible  for  him,  if  he  wishes  to  do  it, 
to  make  the  same  cash  serve  as  balances  for  all  of  the  various  boards  v/ith  which  h© 
settles;  and  he  can  take  a  few  thous,and  dollars  and  make  an  apparent  balance  tO'  the 
extent  of  many  thousands  of  dollars  in  the  settlements  with  these  boards. 

Mr.  Chairman,  it  has  been  demonstrated  time  and  time  again,  when  treasurers 
have  gone  out  of  office  whose  accounts  were  supposed  tO'  be  as  straight  as  it  was  pos- 
sible for  business  men  to  keep  accounts,  that  nothing  was  known  about  the  true  con- 
dition of  their  offices  until  they  went  out  of  them  and  made  a' final  settlement  and 
turned  it  over  to  other  people.  I  think  it  is  desirable,  not  only  for  the  sake  of  the 
people  of  the  counties,  but  for  the  sake  of  the  treasurer  himself,  that  there  should  be 
some  time  limit  to  his  office.  If  there  is  any  official  in  Virginia  who  is  imposed  upon 
by  impecunious  tax-payers,  it  is  the  treasurer  of  a  county.  Take  the  treasurer  of  a 
county  which  is  close  politically,  which  condition  has  rendered  it  necessary  for  a  man 
to  be  mending  his  fences,  all  the  time  with  the  idea  of  re-election;  or  take  a  county  in 
which  there  is  no  such  condition,  but  where  there  is  an  opportunity  for  what  we  call 
a  free  fight,  you  will  find  that  the  treasurer  discovers  that  it  will  be  necessary  to  be 
making  favor  with  the  tax-payers  in  order  that  he  may  be  retained  in  office,  and  the 
result  of  that  is  that  the  tax-payers  impose  upon  the  treasurer  and  demand  that  he  shall 
carry  their  taxes.  It  has  been  the  history  of  a  great  many  treasurers  in  Virginia  that, 
although  they  are  apparently  getting  a  fair  compensation  for  the  duties  which  they 
perform,  when  they  come  to  settle  up  they  find  their  commissions  in  the  shape  of  tax 
tickets  they  have  paid  for,  and  carried  over  for,  the  impecunious  tax-payers. 

The  history  and  the  proof  of  that  is  that  there  has  never  been  a  session  of  the 
General  Assembly  of  Virginia  of  which  I  have  been  a  member — and  the  two  weeks  of 
the  session  which  has  already  been  held  is  but  a  further  proof  of  it — that  there  have 
not  been  from  a  great  many  counties  in  the  Commonwealth  requests  to  extend  the  time 
when  treasurers  may  go  back  and  levy  for  taxes  for  which  they  have  accounted  to  the 
Commonwealth  and  boards  of  supervisors. 

So,  I  say,  it  would  be  a  protection  not  only  to  the  counties  but  to  the  treasurers 
themselves  if  there  was  a  fixed  and  determined  time  when  their  officers  should  expire, 
because  they  would  then  say  to  these  tax-payers,  "Sirs,  you  must  come  up  and  perform 
your  duties  as  citizens.  I  cannot  be  put  in  the  attitude  of  carrying  your  taxes  and 
allowing  the  commissions  to  which  I  am  entitled  to  be  simply  upon  paper.  Again  he 
would  say,  "My  term  of  office  expires  at  a  certain  time,  and  I  must  make  a  final  and 
full  s,ettlement,  I  cannot  get  credit  for  overdue  tax  tickets  in  settlement.  I  am  obliged 
to  turn  over  cash."  It  would  not  only  be  a  protection  to  the  counties,  but  it  would  be 
a  protection  to  the  treasurers  themselves  if  there  was  a  fixed  time  when  they  must 
go  out  of  office. 


DEBATES  OP  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


1769 


Now,  Mr.  Chairman,  I  want  to  call  your  attention  to  the  fact  thai  if  you  go  and  tak© 
the  records  of  the  past  you  will  find  that  a  very  large  per  centage  of  the  treasurers 
who  have  defaulted  in  Virginia,  either  to  the  State  or  to  the  counties,  have  not  been 
treasurers  who  have  held  but  one  or  two  terms  of  oiSce,  btit  they  have  been  treasurers 
who  year  after  year  and  term  after  term  were  re-elected  by  the  people,  and  who  from 
frequent  re-election  had  begun  to  believe  that  they  owned  the  office  and  that  they  were 
no  longer  amenable  to  the  will  of  the  people,  but  that  they  would  be  able  to  continue 
during  life.  It  is.  a  very  dangerous  condition  of  mind  for  an  oflicer  to  get  in,  when 
he  believes  he  is  so  thoroughly  intrenched  in  the  confidence  of  the  people  as  not  to  be 
amenable  to  them. 

I  believe  there  has  been  nothing  proposed  in  the  Convention  which  will  be  as 
much  protection  to  the  tax-payers  of  the  Commonwealth  as  putting  a  time  limit  upon 
the  terms  of  the  treasurers  of  the  counties.  Can  any  treasurer  who  now  holds  the 
ofBce  object?  Why  should  he  object?  As  I  stated  in  the  outset  of  these  remarks,  if 
the  people  see  fit  to  do  so  they  can  continue  him  in  office  for  ten  years  from  this  time. 

Now,  Mr.  Chairman,  if  the  people  whom  I  represent  on  this  floor  had  not  gone 
through  an  experience  with  a  defatilting  treasurer,  I  possibly  wotild  not  feel  as  strongly 
upon  this  stibject  as  I  do.  In  the  remarks  that  I  made  before  the  Committee  of  the 
Whole  I  called  attention  to  the  fact  of  what  happened  in  the  county  of  Rockingham, 
with  reference  to  a  defaulting  treasurer.  I  do  not  wish  now  to  undertake  to  go  into* 
all  that  detail,  because  I  know  the  people  of  Virginia  are  anxious  that  we  should  gO' 
along  with  our  work.  I  do  not  wish  to  detain  the  Convention:  but  I  will  say  to  yoti  now 
that  in  that  county  we  had  a  defalcation  which  meastired  up  to  seventy  or  eighty  thous- 
and dollars,  and  yet  that  defalcation  came  as  a  clap  of  thunder  from  a  clear  sky.  Every- 
body thought  we  had  the  best  treasurer  in  Virginia.  He  had  that  reputation;  and  it 
could  have  been  no  greater  surprise  if  the  skies  had  fallen  when  action  was  taken 
against  that  man  upon  his  official  bond. 

Mr.  Chairman,  I  hope  that,  though  I  know  I  have  not  been  in  a  position  to-day  to 
discuss  this  matter  in  the  detail  and  in  the  manner  I  would  like  to  have  heard  it  dis- 
cussed, this  Convention  will  endorse  what  I  believe  was  the  mature  deliberation  and 
conclusion  of  the  Committee  of  the  Whole. 

Mr.  Boaz:  Mr.  President,  I  have  no  desire  to  make  any  remarks.  The  ground 
has  been  so  fully  covered  by  the  gentleman  from  Rockingham  (Mr.  Keezell)  that  it  is 
unnecessary.  I  will  simply  refer  to  the  provision  of  the  Constitutions  of  some  twenty- 
odd  of  the  States  in  regard  to  this  matter. 

In  South  Carolina  the  sheriff  is  disqualified  for  re-election  if  he  is  in  default. 

In  a  great  many  of  the  States,  where  these  officers  are  made  ineligible  for  succeed- 
ing terms  the  sheriffs  are  the  treasurers.  The  word  "sheriff"'  and  the  word  "treasurer" 
are  interchangeable  terms. 

In  South  Dakota  they  have  a  two  years  term,  and  are  not  eligible  for  more  than 
four  years  in  succession. 

In  Tennessee  they  may  serve  six  years  in  eight. 

In  West  Virginia  the  sheriff  is  ineligible  to  a  second  consecutive  term — that  is  sub- 
stantially the  provision  we  have  here — nor  is  he  permitted  to  act  as  deputy  of  his  suc- 
cessor, or  within  one  year  eligible  to  any  other  office  whatever. 

In  Delaware  the  sheriff  is  given  a  term  of  two  years,  and  is  ineligible  to  succeed 
himself. 

In  Idaho  the  sheriff  is  ineligible  to  succeed  himself. 

In  Illinois  there  is  a  term  of  four  years,  and  the  officer  is  ineligible  for  re-election. 

In  Missouri  there  is  a  term  of  two  years,  and  the  officer  is  eligible  to  serve  four 
years  out  of  six  years. 

In  Pennsylvania  the  officer  is  ineligible  for  the  next  succeeding  term. 

I  have  here  a  statement  of  the  provisions  in  the  Constitutions  of  twenty-odd  of  these 
States,  and  as  a  rule,  they  have  much  shorter  terms  than  ours.  In  most  of  them  the 
terms  are  two  years,  and  they  limit  the  treasurer  to  two  successive  terms.  They  do 
112 — Const.  Deb. 


1770 


DEBATES  OF  THE  COJssSTITUTIO^sTAL  CONVEIstTION  OE  VIEGHs^IA. 


not  give  him  more  than  four  years  as  a  general  rule.  Our  provision  allows  a  treasurer 
to  hold  office  for  eight  years  in  succession,  and  I  think  it  is  a  very  reasonable  require- 
ment. 

I  do  hope  the  Convention  Vv^ll  not  recede  from  the  conclusion  reached  by  the  Com- 
mittee of  the  Whole. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  41;  noes,  43— 
as  follows: 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Manly  H.  Barnes,  Bristovs^,  Brooke,  Brown, 
Clarence  J.  Campbell,  P.  W.  Campbell,  Carter,  Chapm^an,  Cobb,  Crismond,  Earman,  Epes, 
Gillespie,  R.  L,  Gordon,  Green,  Gregory,  Hamilton,  Hancock,  Hooker,  Hubard,  Ingram, 
Claggett  B.  Jones,  Kendall,  Lincoln,  R.  Walton  Moore,  Mundy,  Pedigo,  Phillips,  Portlock, 
Quarles,  Rives,  Robertson,  S'ummers,  Tarry,  Thorn.,  Vincent,  Willis,  Wise  and  Withers. — 41. 

Noes — Messrs.  George  K.  Anderson,  Barbour,  Thomas  H.  Barnes,  Hlair,  Boaz,  Bouldin, 
Dunaway,  Fairfax,  Garnett,  Gilmore,  James  W.  Gordon,  Gwyn,  Harrison,  Hatton,  Hunton, 
G.  W.  Jones,  Keezell,  Lawson,  Lovell,  Marshall,  McHv/aine,  Meredith,  Miller,  Moncure, 
Thom.as  L.  Moore,  O'Plaherty,  Orr,  Parks,  Pollard,  Richmond,  Stebbins,  Stuart,  Thornton, 
Turnbull,  Waddill,  Walker,  Walter  Watson,  Wescott,  Woodhouse,  Wysor,  Yancey  and  the 
:President — 43. 

The  amendm^ent  Vv'as  rejected. 

The  President:    The  question  recurs  on  the  adoption  of  Section  1  as  amended. 

Mr.  O'Flaherty:  I  move  to  strike  out  the  words  beginning  with  semi-colon,  in  line 
16,  page  2,  down  to  the  word  "lav/,"  in  line  17. 

The  effect  of  that  amendment  will  simply  be  that  the  eommxissioners  of  the  revenue 
shall  be  elected  by  the  people.  The  clause  begins,  "There  shall  be  appointed,"  and  then 
follows  the  enumeration  of  seven  officers.  By  striking  out  that  language  these  offi^cers 
will  be  elected  by  the  people.    On  that  amendment  I  call  for  the  ayes  and  noes. 

The  ayes  and  noes  v/ere  ordered. 

Mr.  Thomas  H.  Barnes:  I  desire  to  state  that  the  original  report  of  the  com- 
i  mittee  contained  that  language,  providing  for  the  election  of  these  commissioners  by 
the  people.  The  Committee  of  the  Whole,  after  a  very  lengthy  discussion,  decided  to 
provide  that  they  shall  be  elected  in  some  manner  prescribed  by  the  Legislature.  They 
left  to  the  Legislature  the  v/hole  matter,  and  we  are  willing  to  abide  by  the  decision 
of  the  Committee  of  the  Yv^hole.  ^ 

Mr.  Withers:  My.  President,  I  would  not  take  up  the  time  of  this  Convention  by 
any  disicussion  in  regard  to  this  amendment  were  it  not  for  the  fact  that  the  question 
came  up  in  Committee  of  the  Whole  on  the  Saturday  after  the  election  recess,  when 
there  was  a  bare  quorum  present.  I  dO',  however,  desire  to-  call  the  attention  of  the 
Convention  to  a  few  facts  in  connection  with  this  question,  which  is  brought  up  by 
the  amendment  proposed  by  the  gentleman  from  Clarke  and  Warren  (Mr.  O'Flaherty). 
On  that  day  I  attempted  to  show  why  I,  who  am  in  favor  of  the  election  of  officials  by 
the  people,  did  not  believe  that  listers  for  taxes  were  officials,  in  the  proper  sense  of  the 
term.  Whether  I  succeeded  or  not  is  a  matter  that  is  of  no  importance  to 
the  decision  of  this  question.  I  attempted  to  show,  and  I  believe  I  did  show,  at  any 
rate  it  has  stood  unchallenged  on  the  records  of  the  Convention  for  exactly  two  months, 
to  a  day,  that  the  cost  of  the  elective  system  of  Virginia  was  immensely  greater  than 
.the  cost  of  the  appointive  system  in  other  Statesi,  and  that  the  appointment,  under  a 
proper  system,  of  commissioners  for  the  taxation  of  property  would  result  in  the  per- 
formance of  the  duties  of  that  office  in  from  sixty  to  ninety  days,  and  the  consequent 
retirement  of  the  incumbent,  after  that  period,  until  he  is  appointed  for  the  next 
two  years,  whichever  the  Legislature  may  decide.  I  stated,  as  an  illustration  of  the 
differences  in  the  systems,  matters  which  had  been  brought  to  my  personal  attention  by 
the  fact  in  a  fiduciar^^  capacity  I  had  been  compelled  to  list  taxes  in  other  States;  I 
cited  my  ov/n  county  of  Pittsylvania  and  the  county  of  Norfolk,  and  compared  them 
respectively  with  the  counties  of  Rockingham  and  Mecklenburg,  in  the  adjoining  State 
of  North  Carolina.    I  showed  that  the  commission  for  county  purposes  that  is  paid  out 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIKGIXIA. 


1771 


of  the  county  levy  to  the  commissioiiers  of  the  revenue  for  the  county  of  Norfolk  was 
nearly  four  times  as  great  as  the  total  commission  paid  to  the  commissioners  of  revenue 
of  the  county  of  Mecklenburg  for  performing  similar  work  in  that  county;  and  there 
was  an  almost  equal  disproportion  as  betvveen  the  counties  of  Rockingham  and  Pittsyl- 
vania. 

I  believe,  Mr.  President,  if  the  Convention  will  consider  these  two  facts,  the  eth- 
cienc}'  of  the  official  in  listing  property  for  taxation,  and  the  economy  when  he  is  not 
influenced  by  any  desire  to  keep  himself  in  office  or  by  any  desire  to  please  those  v^^hose 
property  he  has  to  list,  there  will  be  no  hesitation  in  adopting  this  provision,  and  re- 
moving this  person,  noYv  improperly  styled  an  official,  from  popular  prejudice  or  favor. 
Each  man  wnom  he  approaches  remembers  whatever  of  imaginary  wrong  he  thinks  has 
been  perpetrated  against  him  by  overcharging  or  improperly  listing  such  property  as  he 
does  not  Vv^ant  taxed. 

Thirdly,  Mr.  President,  I  sought  to  impress  upon  the  Conventioii  when  sitting  in 
Committee  of  the  Whole,  the  fact  that  no  man  Vv'-ho  listed  our  property  for  taxation 
ought  to  be  dependent  upon  cur  favor  for  his  position  and  remuneration,  because  it  is 
so  essentially  a  personal  and  disagreeable  duty  that  almost  any  man,  with  human  re- 
strictions upon  his  sense  of  right  and  wrong,  would  resent  the  act  of  an  official  if  that 
official,  in  differing  with  him,  undertook  to  appraise  his  property  at  a  higher  rate  than 
the  citizen  tj.ought  it  "ought  to  be  appraised,  or  to  list  more  property  than  the  citizen 
thought  ought  10  be  listed;  and  v/ould  seek  to  vent  his  displeasure  upon  the  official  by 
seeking  to  retire  him  from  office  at  the  next  election, 

I  have  noticed  that  those  gentlemen  in  the  Convention  who  have  criticised  my 
position  with  regard  to  that  particular  matter  have  ever  been  ready  and  willing  to 
submit  to  i^e  people  for  election  officers  of  comparative  unimportance,  where  local  pre- 
judices and  local  sores  Yveve  necessarily  engendered,  v\-hile  "they  were  totally  unwilling 
to  give  them  control  of  the  respective  branches  of  their  government,  such  as  the  judi- 
cial and  the  executive. 

For  these  three  reasons  it  has  been  urged,  and  is  respectfully  urged  again,  that 
the  commissioners  of  the  revenue  or  the  listers  of  property  for  taxation  are  not  officials 
and  offixcers  in  the  proper  sense  of  the  term,  and  should  not  be  continuous  and  per- 
manent. By  making  them  independent  of  the  citizens  whose  property  they  assess  a 
more  efficient,  as  well  as  a  more  economical,  system  will  be  insured.  No  lister  of 
property  for  taxation  ought  to  be  dependent  for  his  continuance  in  office  or  for  his 
pay  upon  the  citizens  whose  property  he  lists.  These  three  reasons,  I  respectfully  con- 
tend, ought  to  justify  the  Convention  in  sustaining  the  action  of  the  Committee  of  the 
Whole  and  in  voting  dovrn  the  amendment  of  the  gentleman  from  Clarke  and  W^arren 
(Mr.  OTlaherty). 

Mr.  O'Plaherty:  Mr.  President,  the  criticism  of  the  gentleman,  that  those  who  are 
in  favor  of  this  amendment  have  not  been  in  favor  of  voting  for  the  other  officials  of 
this  State,  is  not  true  of  myself.  I  have  voted  for  the  election  by  the  people  of  every 
official  of  the  State. 

With  reference  to  the  three  points  made  by  the  gentleman,  the  first,  as  to  cost, 
should  not,  in  my  judgment,  enter  into  this  question,  because  the  subject  of  cost  is  a 
matter  which  can  be  regulated  by  the  amount  of  commission.  If  3^ou  reduce  the  com- 
mission you  will  reduce  the  cost.  I  am  surprised  that  the  gentleman  should  make  an 
argument  of  that  kind.  It  is,  to  my  mind,  absolutely  worthless.  If  it  costs  too  much, 
reduce  his  commission. 

The  second  point  which  he  makes  is  as  to  the  efficiency  of  the  officials.  I  say  that 
if  you  want  to  make  an  official  efficient,  say  that  he  shall  not  be  re-elected  to  the  offic©, 
and  then  he  will  do  his  duty  without  regard  to  whether  he  is  to  be  re-elected  or  not. 
The  gentleman  aoandoned  his  whole  case  when  he  abandoned  that  point  in  the  Com- 
mittee of  the  whole. 

The  third  point  is  that  no  man  shall  be  dependent  for  his  position  upon  the  favor 
of  the  people.    I  say  that  no  man  ever  ought  to  hold  an  office  who  is  not  dependent 


1773  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

upon  what  he  does  in  that  office.  I  am  dependent  upon  the  favor  of  the  people  if  I 
practice  law,  and  I  am  dependent  upon  the  favor  of  the  people  if  I  practice  medicine. 
I  am  dependent  upon  their  favor  if  I  want  to  be  in  politics,  and  I  am  dependent  on  their 
favor  if  I  want  to  be  a  commissioner  of  revenue,  and  I  ought  to  be.  I  would  never 
vote  not  tO'  make  a  man  responsible  to'  the  people  who  put  him  in  power. 

Mr.  Keezell:    Does  that  amendment  make  him  ineligible  to  re-election? 

Mr.  O'Flaherty:  It  does  not;  but  I  would  add  an  amendment  that  he  should 
not  be  eligible  to  re-election  after  his  first  term.  A  gentleman  says  that  is  nonsense. 
I  say  that  is  the  only  sensible  way  to  dO'  this  thing.  That  is  the  only  question  that 
I  discussed  with  my  people  when  I  made  a  canvass  for  the  position  which  I  hold; 
and  the  people  of  my  district  are  almost,  and  I  will  say  quite,  unanimous  in  the 
belief  that  a  commissioner  of  revenue  should  be  elected  by  the  people,  and  that  he 
should  not  be  eligible  for  re-election.  The  question  of  cost  or  of  efficiency  does  not 
enter  into  this  matter.  I  want  to  ask  my  distinguished  friend  to  answer  me  what 
difference  a  few  dollars  makes  in  this  matter,  or  a  few  thousand  dollars,  or  a  few 
tens  of  thousands  of  dollars,  if  those  who  escape  taxation  in  the  State  of  Virginia 
to-day  are  reached.  My  distinguished  friend,  from  the  beginning  of  this  Convention, 
lias  been  talking  about  mere  bubbles.  He  has  been  arguing  for  a  reduction  of  ex- 
penses of  five  or  ten  thousand  dollars,  of  a  few  cents  here  and  there,  when  the  whole 
question,  in  the  State  of  Virginia,  is  to  get  the  money  that  is  due  to  the  State,  and 
not  of  reducing  the  expenses  in  the  county,  and  in  the  judiciary,  and  in  this,  that  and 
the  other.  That  is  where  the  gentleman  made  his  initial  mistake,  and  he  will  go 
down  to  his  grave  with  it.  I  say  that  the  gentleman  has  made  his  mistake  by  en- 
deavoring to  save  a  dollar  here  and  a  dollar  there,  and  he  puts  that  dollar  up  so  close 
to  his  eyes  that  it  looks  like  it  covered  the  wliole  earth,  when,  as  a  matter  of  fact, 
we  ought  to  be  getting  in,  from  the  taxable  values  of  the  State  of  Virginia,  hundreds 
of  thousands  of  dollarsi  that  are  escaping. 

Mr.  O'Flaherty's  amendment  was  rejected.    Ayes,  29;  noes,  48. 

Mr.  Withers:  Mr.  President,  I  desire  to  offer  the  following  amendment:  "Amend 
Section  1  by  striking  out,  in  lines  2  and  3,  the  words  'one  attorney  for  the  Common- 
wealth.' " 

Mr.  Withers:  Mr.  President,  I  dislike  to  take  up  the  time  of  the  Convention  to 
again  call  its  attention  to  what  this  amendment  means.  I  will,  however,  explain  it 
so  that  it  can  be  thoroughly  understood.  It  is  to  strike  out,  in  lines  2  and  3,  the 
words  "one  attorney  for  the  Commonwealth,"  so  that  the  Legislature,  if  it  sees  fit  in 
its  wisdom,  may  provide  for  what  are  known  as  district  attoTneys — that  isi,  each 
judicial  circuit  of  the  State  may  have  an  attorney  for  that  circuit,  but  there  shall  be 
no  constitutional  necessity  that,  in  each  county  of  the  State,  there  shall  be  a  Com- 
monwealth attorney. 

I  will  attempt  to  meet,  in  advance,  the  proposition  that  a  Commonwealth  attorney 
is  essential  for  every  county,  as  I  Know  such  a  proposition  will  be  advanced  and 
argued.  That  does  not  correspond  with  my  observation.  The  Commonwealth  attor- 
ney, in  some  few  counties,  may  be  very  busy;  but  the  Commonwealth  attorneys,  in 
very  many  other  counties,  may  not  be  busy,  as  is  evidenced  by  the  fact  that  we  find 
them  in  every  Legislature,  in  the  Constitutional  Convention,  and  in  other  bodies  of 
this  State.  They  cannot  be  very  busy  all  the  time,  because  they  can  properly  per- 
form the  duties  of  their  other  offices. 

This  isi  not  an  attack  upon  Commonwealth  attorneys.  So  far  as  my  observation 
and  information  go,  the  duties  of  that  office  are  most  acceptably  and  properly  per- 
formed; but  it  would  promote  harmony  in  the  judicial  system;  it  would  raise,  dignify 
and  elevate  the  office  itself,  that  there  should  be,  throughout  the  State,  to  correspond 
with  the  circuit  judges  of  the  State,  a  prosecuting  attorney  to  gO'  around,  from  county 
to  county,  with  the  judge  to  see  that  criminals  are  properly  prosecuted.  The  position 
would  be  next  in  importance  to  that  of  Congressman.  It  would  insure  to  gentlemen 
who  have  political  ambitions,  by  the  proper  performance  of  their  duties,  reputation 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


and  fame  for  their  ability  energy  and  mental  capacity.  It  would,  I  believe,  result  in 
an  efficient  prosecution  of  criminals  and  it  would  harmonize  our  judicial  system. 

It  would,  Mr.  President,  in  addition,  give  us  an  official  secondary  in  importance 
only  to  the  judge  in  our  judicial  system,  and  an  official,  in  a  political  sense,  second 
only  to  the  Congres.sman.  It  would  be  a  sure  step  to  reputation,  fame  and  advance- 
ment, and  it  could  in  no  wise  lessen  the  efficiency  of  the  prosecution  of  criminals,  so 
far  as  I  can  see.  I  do  not  think  it  is  the  custom  of  Commonwealth  attorneys  to  run 
all  over  their  counties  to  attend  magistrates'  trials.  It  is  not  so  in  some  sections 
and  there  is  no  officer  required  to  do  it  by  law.  The  only  question  is  whether  it  is 
wiser  to  have  such  an  officer  for  every  county  or  whether  it  is  better  to  have  one  of 
higher  importance,  covering  a  larger  extent  of  territory,  with  more  of  emolument  and 
more  of  honor  attached,  and  thereby  to  render  the  judicial  system  more  dignified, 
consistent  and  harmonious,. 

I  shall  not  enter  into  any  further  discussion  of  this  question,  because  I  am  sure 
that  the  mind  of  this  Convention  is  in  such  mood  that  anything  I  might  say,  in  the 
way  of  argument,  will  occur  to  it  of  itself. 

Mr.  Keezell:  V^%at  would  be  the  effect  if  we  were  to  have  district  attorneys 
instead  of  Commonwealth  attorneys,  as  to  advising  boards  of  supervisors,  etc.? 

Mr.  Withers:  I  think  I  can  reply  to  that.  Every  time  any  county  in  the  State 
has  a  case  or  litigation  of  importance,  almost  without  exception  I  submit,  it  is  the 
rule  to  have  counsel  other  than  the  Commonwealth  attorney.  The  Commonwealth 
attorney  appears  as  adviser  to  the  board  when  his  presence  is  demanded  by  the  board 
of  supervisors. 

In  what  capacity  are  his  services  continually  required?  In  what  capacity  can  a 
Commonwealth  attorney  be,  expected,  as  a  prosecuting  officer,  to  be,  every  day,  at  the 
command  and  behest  of  the  board  of  supervisors  in  several  cases?  There  is  always 
other  counsel  employed,  and  the  only  thing  that  would  be  requisite,  when  the  case 
demanded,  would  be  the  payment  of  a  retainer  to  a  legal  firm  for  such  advice.  In 
case  of  emergency  or  necessity  there  would  arise,  of  course,  a  necessity  for  the  employ- 
ment of  counsel  just  as  there  does  now.  Of  course,  the  Commonwealth  attorney  in  his 
home  county  could  practically  perform  those  duties  as  district  a^ttorney.  In  others, 
especially  in  large  counties,  there  might  be  a  necessity  for  the  retainer  of  a  legal  firm 
for  consultation  upon  routine  and  ordinary  business  transacted  by  the  board  of  super- 
visors. 

So  with  business  transacted  by  the  sheriff  and  by  the  treasurer.  Those  things 
are  purely  perfunctory,  in  the  main,  and  the  self-sufficient  answer  to  it  is  that  such  a 
thing  is  not  a  matter  of  serious  consideration  in  the  greater  part  of  the  State  of  Vir- 
ginia, and  in  by  far  the  larger  number  of  counties  in  Virginia.  It  is  seen  in  the  fact 
that  Commonwealth  attorneys  can  be  members  of  any  Legislature  or  deliberative  body 
in  existence  in  Virginia,  or  other  bodies — such  as  members  of  Congress,  members  of 
the  General  Assembly  and  members  of  the  Constitutional  Convention.  It  shows,  Mr. 
President,  not  that  they  are  not  properly  performing  the  duties,  but  their  duties  are 
such  that  their  presence  at  home  to  prosecute  criminals,  and  for  routine,  usual  and 
ordinary  advice  in  the  administration  of  county  affairs,  is  not  of  such  a  serious  nature 
as  to  be  pressing  in  its  demands  or  to  require  their  constant  and  ever-present  attend- 
ance at  their  cotmty  seats,  or  at  their  offices,  or  at  the  meetings  of  boards  of  super- 
visors, or  with  the  sheriff  or  the  treasurer. 

I  respectfully  submit  if  the  other  plan  is  adopted  it  will  have  the  advantages  of 
being  an  important  position.  However  important  the  Commonwealth  attorney  may  be 
in  his  own  county,  his  fame,  reputation,  duties  and  privileges  are  bounded  by  the  limits 
of  his  county.  They  will  be  enlarged,  enhanced,  increased  and  magnified;  and  we  will 
have  an  harmonious  judicial  system,  whereby  the  duties  of  the  prosecuting  atorney 
will  be  confined  to  the  performance  of  one  branch,  and  one  branch  only,  of  the  adminis- 
tration of  justice  in  our  Commonwealth,  and  that  is  to  see  that  criminals  are  properly 
prosecuted. 


1774  DEBATES  OF  THE  COXSTITUTIOXAL  CO^vTYENTION  OF  VIEGIN-IA. 

Mr.  Green:  I  feel  constrained  to  support  the  motion  of  my  colleagues  in  this  matter, 
for  what  I  believe"  are  most  important  public  reasons.  I  wish  to  sa,y  to  my  friends  who 
happen  to  be  CommonYvealth  attorneys  in  this  Convention  that  I  mean  no  disrespect 
to  them  in  what  I  have  to  say.  I  have  been  a  Commonwealth  attorney  myself.  I  have 
never  thought  it  was  a  disgrace  to  hold  the  ofRce;  but  I  do  say  that  by  a  system  of 
cheese-paring,  adopted  in  the  Legislature  of  Virginia,  Commonwealth  attorneys  re- 
ceive pay  in  accordance  with  the  degradation  of  the  service  which  he  is  required  to 
perform.  His  character  as  a  lawyer,  his  influence  in  the  community,  his  influence 
in  the  State  at  large  are  utterly  destroyed.  I  do  not  deny  that  there  are  many 
promising  young  men  in  the  position  of  Commonwealth  attorney  in  Virginia;  a.nd  I 
want  to  lift  them  up.  I  do  not  want  to  keep  them  in  the  terrible  condition  of  servants 
to  the  county  ring,  which  they  now  occupy.  I  want  it  understood  that  I  do  not  mean 
any  reflection.  I  repeat  it,  because  I  do  not  want  to  be  understood  as  reflecting  upon 
anybody;  I  do  not  reflect  upon  anybody,  I  say,  sir,  that  these  oflicials  do  not  occupy 
the  high  plane  of  influence  and  character  which  a  Commonv^ealth  attorney  of  Virginia 
ought  to  occupy,  and  one  reason  for  it  is  that  not  their  will,  but  their  poverty  consents. 
If  you  establish  a  Commonwealth  attorney  for  each  district  no  man  can  deny  that  it 
elevates  the  oflice,  gives  him  a  greater  influence,  a  higher  character,  position  and 
reputation,  and  no  one  can  deny  that  a  better  class  of  men  will  seek  and  obtain  the 
portion  from  the  people. 

You  must  necessarily  pay  them  more,  but  3''ou  will  get  a  cleaner  and  better 
administration  of  justice.  I  have  never  understood  how  it  could  be  said — I  deny  it 
if  it  is  said — that  a  Commonwealth  attorney  could  not  perform  the  duties  of  his  oflice 
in  a  district.  Two  United  States  district  attorneys  serve  the  whole  State  ol  Virginia. 
They  are  Commonwealth  attorneys  of  the  United  States,  and  nothing  else.  They  are 
paid  well,  and  whenever  it  is  necessary  for  a  commissioner  to  have  their  presence 
he  has  only  to  inform  them  and  they  are  there.  Whenever  it  is  necessary  for  tlie 
board  of  supervisors  of  the  county  of  Pittsylvania  or  Henrj^  or  Nottowaj^  or  Amherst 
to  have  them  present  before  them  the  Commionwealth  attorney  of  the  district  will  be 
there  upon  their  request  and  demand,  just  as  the  district  attorneys  of  the  United 
States  are  now  present  upon  request. 

It  is  a  mistake  for  the  gentleman  who  happen  to  be  Commonwealth  attorneys  in 
any  county  to  feel  that  they  are  going  to  be  deprived  of  their  oflice.  If  they  are  fit 
for  it  they  will  be  retained  by  the  people.  The  man  who  acts  as  Commonwealth  attor- 
ney through  five,  six  or  seven  counties  of  this  State  builds  up  a  practice  and  reputa- 
tion as  a  lawyer  which  will  doubly  pay  him  for  the  expenses  that  he  may  incur  in 
attending  upon  the  calls  and  demands  of  supervisors  at  their  respective  meetings  in 
the  different  counties.  It  brings  him  into  communication  with  a  large  clientage  and 
gives  him  an  acquaintance,  which,  if  he  is  worth  anything,  will  enable  him  to  make 
more  money  than  v/as  ever  made  out  of  the  position  of  Commonwealth  attorney  anywhere 
under  the  sun.  If  he  is  not  worth  anything  he  ought  to  go  down,  and  deserves  to  perish. 
The  people  will  find  it  out,  if  he  has  the  right  kind  of  ability.  He  can  impress  it  upon 
them  himself. 

I  believe  it  vv^ould  be  a  great  saving  to  the  State  even  if  they  are  employed  at 
liberal  salaries.  I  believe  that  this  doling  out  of  twO'  hundred  dollars  to  a  poor  creature 
here,  and  of  $350  to  another  poor  creature  there,  who  calls  himself  a  Commonwealth 
attorney,  is  an  absolute  degradation  of  legal  services  in  the  State  of  Virginia,  and  I 
feel  called  upon,  therefore,  out  of  common  decency  to  protest  against  it. 

Mr.  Meredith:  Mr.  President,  while  I  am  in  favor  of  the  idea  of  the  gentleman 
from  Danville,  I  would  not  like  to  support  it  in  the  language  in  which  he  has  offered 
it.  I  think  there  would  be  danger  in  simply  striking  out  the  provision  as  to  the  Com- 
monwealth attorneys.  We  have  undertaken  in  this  Constitution  to  state  the  county 
officers,  and  I  am  doubtful,  to  say  the  least,  whether,  if  we  leave  out  of  the  Constitution 
entirely  the  provision  in  regard  to  these  officers,  the  Legislature  will  have  authority 
to  create  as  important  an  office  as  that,  unless  there  be  some  mention  made  of  it  in  the 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXIIOX  OE  VIKGIXIA. 


Constitution.  I  Therefore  suggest  to  tlie  gentleman  from  Danville  (Mr.  Witliers),  if 
he  is  agreeable  to  it,  to  leave  in  the  language,  ''"'One  attorney  for  the  Commonwealth,'^ 
and  add  to  it  this,  vrhich  vrould  be,  to  my  mind,  sufficientlj*  elastic  to  have  it  tested, 
if  desirable:  '''Unless  the  Legislature  shall  prescribe  that  there  shall  be  a  district  at- 
torney for  one  or  more  counties. 

I  think,  in  that  way,  we  will  give  the  Legislature  the  opportunitj-  of  testing  this 
matter  without  tying  its  hands  by  saying  there  shall  be  a  district  attorney  for  one 
or  more  counties.  Let  it  continue  as  Commonwealth  attorney  for  one  county,  with  the 
power  in  the  Legislature  to  test  this  change,  if  it  shall  see  the  wisdom  of  it.  There 
is  no  doubt  about  the  fact  that  several  of  the  States  have  tested  this  matter  and  found 
it  beneficial.  If  they  have  found  it  beneficial,  I  cannot  see  why  we  should  not  get  the 
same  benefit  from  it.  We  should  dx  least  leave  it  to  the  Legislature  to  determine.  "\\'e 
do  not  say  it  shall  be  more  than  one  county.  T^'e  say  ■'"for  one  or  more  counties.'"  Let 
the  Legislature  prescribe  as  to  how  many  officers  of  this  character  there  shall  be. 

I  want  to  say  one  word  more  and  then  I  shall  have  finished.  I  do  not  vrish,  any 
more  than  does  the  gentleman  from  Pittsylvania  (Mr.  Green),  to  refiect  in  the  slightest 
upon  the  Commonwealth  attorneys  of  the  State.  I  have  seen  in  this  body  too  many  able 
men  who  have  filled  that  office,  and  among  them  I  recognize  some  of  the  ablest  lawyers 
at  the  bar  of  the  State;  but  it  is  equally  true  that  there  are  frequently  inefficient  Com- 
monwealth attorneys,  who  occupy  the  office  by  reason  of  some  popular  move:  active 
3'oung  men  are  able  to  obtain  votes  and  are  electea  Commonwealth  attorneys. 

Mr.  Chairman,  I  think  we  ought  to  recognize  the  importance  of  the  position  of 
Commonwealth  attorne:-',  or  rather  the  law  officer  of  the  sovereign,  and  recognize  it 
as  a  higher  duty  than  vre  do.  Do  not  let  us  make  it  so  that  he  can  be  elected  by 
local  favoritism  in  a  county. 

Let  us  turn  now  and  see  what  is  the  difierence  between  this  country  and  England. 
A  criminal  is  brought  to  the  bar  in  England  and  is  prosecuted  by  Queen's  counsel,  a 
man  s'elected  from  the  bar  for  his  ability. 

I  say  it  is  our  duty,  if  possible,  to  rectify  that  evil,  so  that  we  shall  have  the  sov- 
ereign, represented  by  men  who  are  among  the  abler  members  of  the  bar.  I  know 
there  are  man}'  able  prosecuting  attorneys;  but  we  ought,  if  possible,  to  have  them 
selected  in  some  other  way  than  bj'  simply  getting  the  votes  of  a  small  locality;  so 
that  in  these  great  State  trials,  costing  a  great  deal  of  money,  where  important  ques- 
tions are  raised,  where  life  and  death  are  at  stake,  we  shall  not  have,  as  has  happened 
in  this  State  so  often,  "infamous  criminals  getting  free  because  of  the  inabilit}-  of  the" 
Commonwealth  attorney  or  by  reason  of  the  great  ability  and  ingenuity  of  the  lav;wers 
on  the  other  side.  We  can  secure  that  result  if  we  have  these  Commonwealth  at- 
torneys elected  by  such  a  large  class  of  voters  as  to  prevent  mere  local  favoritism. 

I  respectfully  submit,  sir,  that  the  matter  ought  to  be  left  to  the  Legislature,  sa 
that  they  may  test  this  matter  as  it  has  been  tested,  and  favorably  tested,  in  other 
States. 

Mr.  Withers :  Mr.  President,  I  desire  to  withdraw  my  original  amendment,  and 
offer  the  substitute  proposed  by  the  gentleman  from  Richmond  (Mr.  Meredith). 

The  President  Pro  Tempore:  The  Secretary  will  read  the  amendment  offered 
by  the  delegate  from  Danville  (Mr.  Withers). 

Add  after  the  words  '•■attorney  for  the  Commonwealth,''  the  words  •'•'who  shall  be 
elected  by  the  qualified  voters  of  the  judicial  circuit  in  which  said  county  is  situated,  and 
shall  perform  the  duty  of  the  said  office  for  all  the  counties  composing  said  judicial 
circuit." 

Mr.  Hancock:  The  importance  of  this  subject  is  the  only  excuse  I  have  to  offer  for 
submitting  any  remarks  to  this  Convention.  The  office  of  Commonwealth  attorney  is 
one  of  the  most  important  offices  in  our  system  of  government.  It  is  an  offi.ce  that 
is  peculiarly  local  in  its  character,  and  its  work  and  duties  are  peculiarly  local  in 
their  nature.    It  is  important  that  the  officer  who  has  to  discharge  a  duty  of  this  kind 


1776 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


should  be  fully  acquainted  with  the  people  and  the  locality  in  which  he  is  to  perform 
his  duty.  Now,  Mr.  President,  take  the  Commonwealth  attorney  of  a  county,  however 
small  that  county  may  be,  yet  it  is  a  political  organization  of  the  State.  Each  county, 
however  small  in  territory,  has  the  same  organization,  the  same  officers  and  the  same 
mission  to  perform  that  one  of  the  larger  counties  has.  The  Commonwealth  attorney 
is  the  officer  who  has  to  give  legal  advice  to  all  officers  connected  with  the  county 
organization.  He  is  a  very  im^portant  factor  in  that  county.  Take,  for  instance,  the 
board  of  supervisors  of  a  county,  and  he  is  required  to  attend  its  meetings,  to  give 
advice  to  the  board  about  all  county  matters,  to  examine  and  pass  upon  every  claim 
that  is  presented  against  the  county,  and  to  determine  whether  it  is  proper  and  just 
and  should  be  allowed.  He  is  there  to  appeal  in  case  the  board  of  supervisors  should 
allov/  claims  which  are  improper  against  the  county.  Now,  consider  some  of  the  other 
duties  of  the  Commonwealth  attorney  which  are  local  in  their  character.  The  Com- 
monwealth attorney  knows  the  people  of  his  county  and  when  a  crime  has  been  commit- 
ted he  knows  the  witnesses;  he  is  acquainted  with  the  people,  and  there  can  be  no 
such  thing  as  an  improper  prosecution  or  a  persecution,  because  he  understands  fully 
the  whole  situation. 

I  had  the  honor,  in  my  early  life,  to  occupy  the  position  of  Commonwealth  attorney 
for  the  county  of  Chesterfield.  On  one  occasion  I  was  requested  to  come  to  the  City 
of  Richmond  and  prosecute  a  case  for  the  Commonwealth  attorney,  who  was  unable 
to  prosecute  on  account  of  siclmess  or  some  other  cause.  When  I  appeared  in  the 
hustings  court  of  this  city  I  was  confronted  with  this  difficulty:  Here  were  witnesses, 
a  great  number  of  them.  I  knew  none  of  them — I  did  not  even  know  well  the  officers 
of  the  court.  There  w^as  a  man  who  had  been  indicted  by  the  grand  jury.  I  knew 
nothmg  whatever  of  the  case,  and  I  had  to  ask  for  a  continuance  until  I  could  examine 
the  witnesses  and  find  out  whether  the  case  was  a  proper  one  to  be  prosecuted  or  not. 
I  was  helpless  in  the  matter  until  I  could  have  an  opportunity  to  examine  in  to  the 
case  and  to  acquire  information  that  was  necessary  to  determine  whether  it  was  a 
proper  or  an  improper  prosecution.  On  the  other  hand,  if  I  had  been  the  Common- 
wealth attorney  of  that  city  I  would  have  been  fully  informed  as  to  all  of  these  matters. 
If  you  have  a  district  attorney,  he  goes  from  county  to  county,  and  has  some  five  or  six 
counties  in  his  district.  How  will  he  know  the  people  and  the  witnesses?  How  will 
he  understand  whether  this  is  or  is  not  a  malicious  prosecution — whether  it  is  a  pro- 
secution brought  for  the  purpose  of  maligning  and  injuring  a  citizen  or  is  an  honest 
purpose  to  prosecute  for  the  benefit  of  the  Commonwealth? 

I  think,  Mr.  President,  that  the  Commonwealth  attorney  is  the  most  important 
officer  in  tne  county.  He  is,  m  fact,  the  legal  adviser  of  all  the  officers  of  the  county. 
A  constable  or  a  sheriff  rarely  arrests  a  person  on  a  criminal  charge  without  inquiring 
of  the  attorney  of  the  Commonwealth  what  to  do  and  how  to  act.  If  you  have  a  district 
attorney  how  will  the  sheriff  or  the  constable  or  any  other  officer  know  how  to  decide 
what  to  do,  when  there  is  no  legal  officer  at  hand  to  give  the  needed  advice?  The 
district  attorney  is,  perhaps,  fifty  or  seventy-five  miles  away.  Here  is  a  board  of 
supervisors  who  have  to  determine  an  important  question  upon  which  they  need  legal 
advice.  They  cannot  obtain  the  services  of  the  district  attorney  who  is  fifty  miles 
away,  prosecuting  a  murder  case  in  another  county.  The  board  of  supervisors  will, 
therefore,  be  compelled  to  employ  some  other  attorney  to  advise  them  in  the  premises, 
and  thus  entail  additional  expense  upon  the  county. 

Mr.  President,  the  gentleman  from  Danville  (Mr.  Withers)  has  said  that  the  full 
time  of  the  Commonwealth  attorney  is  not  now  employed.  What  difference  doesi  it 
make  whether  a  man's  time  is  employed  or  not  if  he  efficiently  performs  the  duties  that 
are  assigned  to  him?  If  those  duties  are  such  that  he  can  perform  them  and  at  the 
same  time  do  other  work,  why  require  him  to  work  every  moment  of  the  day,  from 
early  morn  until  dewy  eve,  in  and  about  the  duties  of  an  office?  We  want  efficient 
men,  men  who  will  perform  the  duties  assigned  to  them;  and  whether  they  work  one 
hour  a  day  or  ten  hours  a  day,  if  the  work  is  faithfully  and  efficiently  done,  that  is  all 
that  can  be  required. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIRGIXIA. 


1777 


The  other  gentleman  from  Danville  (Mr.  Green)  Intimated  that  Commonwealth 
attorneys  in  Virginia  are  very  inefficient  men.  I  want  to  call  his  attention  to  the  fact 
that  if  he  will  look  over  this  Convention  he  will  find  a  dozen  or  more  gentlemen  who 
are  now,  or  have  been  heretofore,  attorneys  for  the  Commonwealth.  These  men  are 
certainly  equal  in  character,  in  reputation  and  in  ability  to  the  other  members  of  the 
Convention.  They  are  men  who,  in  their  county,  in  their  congi^essional  district,  and  in 
the  State  at  large,  are  worthy  and  proper  representatives  of  the  Commonwealth,  men 
of  whom  the  State  may  justly  be  proud.  I  say  to  you  that  if  there  were  no  other  reason 
and  no  other  argument  in  favor  of  the  Committee's  report,  adduced  on  this  floor,  I 
might  point  to  the  gentlemen  who  are  Commonwealth  attorneys  and  also  members  of 
this  Convention  as  living  examples  of  what  kind  of  men  are  elected  to  that  office  in 
Virginia. 

Mr.  Harrison:  Will  the  gentleman  allow  me  to  call  his  attention  to  the  judges  of 
the  Court  of  Appeals  who  were  elected  when  they  were  Commonwealth  attorneys  of 
their  respective  counties.  Judge  Riley  and  Judge  Christian? 

Mr.  Hancock:  Yes,  sir;  and  if  it  may  also  be  allowed  I  can  refer  to  a  member  of 
this  Convention  who  was  at  one  time  one  of  the  most  distinguished  members  of  Con- 
gress this  Commonwealth  has  ever  had  and  who  faithfully  represented  this  State  in 
the  Congress  of  the  United  States  for  fourteen  years.  He  was  also,  when  a  young 
man,  one  of  the  most  distinguished  Commonwealth  attorneys  in  the  State  of  Virginia. 
I  could  point  to  others  in  this  Convention  equally  as  distinguished  if  it  were  proper  to 
do  so. 

The  gentleman  from  Danville  stated  that  the  establishment  of  this  office  of  dis- 
trict attorney  v\-ould  furnish  an  inspiration  for  ambitious  young  men  to  go  forth  with  a 
great  future  before  them  and  with  the  hope  of  making  a  great  reputation  in  that  posi- 
tion. I  do  not  think  offices  are  made  for  the  purpose  of  furnishing  inspiration  for  ambi- 
tious young  men.  I  think  that  if  a  man  has  the  proper  kind  of  ambition  the  inspira- 
tion comes  with  the  ambition  and  he  generally  succeeds  in  whatever  he  undertakes. 

The  gentleman  from  Danville  (Mr.  Withers)  says  that  the  appointment  of  a  district 
attorney  will  make  our  judicial  system  consistent  and  complete.  Consistency  is  a  jewel, 
but  sometimes  consistency,  according  to  the  views  of  the  gentleman  from  Danville,  are 
painful  inconsistencies  so  far  as  other  people  are  concerned.  I  think  that  one  Com- 
monwealth attorney  for  each  county  of  this  State  is  better  and  more  consistent  with  our 
judicial  system,  and  will  stibserve  the  interests  of  the  people  better,  than  a  district 
attorney  travelling  around  from  county  to  county  with  the  judge  of  the  circuit  court. 

Now,  Mr.  President,  in  regard  to  the  proposition  that  there  would  be  any  money 
saved.  We  cannot  say  that  there  will  be  any  money  saved,  because  we  do  not  know 
what  is  going  to  be  paid  these  district  attorneys. 

In  conclusion  I  will  say:  Let  us  have  a  Commonwealth  attorney  for  each  county. 
It  has  been  the  custom  in  Virginia  since  1850  and  has  been  satisfactory  to  the  people. 
The  most  distinguished  men  in  this  Commonwealth  to-day  are  men  who  have  occupied 
or  who  now  occupj^  that  position.  There  can  be,  therefore,  no  reason  urged  against  it 
on  the  ground  that  inefficient  men  are  elected.  Gentlemen  who  are  Commonwalth 
attorneys  are  not  complaining  that  they  are  improperly  paid,  and  there  are  plenty  of 
good  men  who  are  willing  to  hold  the  office  under  the  present  system.  We  ought,  there- 
fore, to  be  careful  about  getting  rid  of  this  officer  and  establishing  one  that  is  novel  to 
us,  and  one  that  will  likely  create  disorder  and  confusion  in  our  judicial  system. 

Mr.  Withers'  amendment  was  rejected.    Ayes,  20;  noes,  53. 
Mr.  Meredith:    I  now  again  offer  my  amendment. 

Insert  after  the  word  '"Commonwealth."  in  line  3,  the  following:  "Unless  the  Gen- 
eral Assembly  shall  prescribe  that  there  shall  be  elected  a  district  attorney  for  one  or 
more  counties." 

Mr.  Pollard:  On  this  question  I  am  paired  with  the  gentleman  from  Montgomery 
(Mr.  Moore).    If  he  were  present  he  would  vote  "nay"  and  I  should  vote  "yea." 


1778 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


The  Question  having  been  taken  by  the  ayes  and  noes,  the  result  was  announced — 
ayes,  34;  noes,  4o — as  follows: 

Ayes — Messrs.  Allen,  Barbour,  Manly  H.  Barnes,  Blair,  Boaz,  Brown,  P.  W.  Campbell,, 
Chapman,  Fairfax,  Gilmore,  Glass,  James  W.  Gordon,  R.  L.  Gordon,  Green,  Gwyn,  G.  W. 
Jones,  Keezell,  Lindsay,  Marshall,  Meredith,  Miller,  Moncure,  Parks,  Richmond,  Robert- 
son, Stebbins,  Turnbull,  Waddill,  Watson,  V/escott,  Willis,  Wise,  Withers  and  the  Presi- 
dent—34. 

Noes — Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Thomas  H.  Barnes,  Bouldin, 
Bristow,  Brooke,  Clarence  J.  Campbell,  Carter,  Cobb,  Crismond,  Dunaway,  Earman,  Bpes, 
Garnett,  Gillespie,  B.  T.  Gordon,  Gregory,  Hancock,  Harrison,  Hatton,  Hooker,  Hubard^ 
Hunton,  Ingram,  Kendall,  Lav/son,  Lovell,  Mcllwaine,  R.  Walton  Moore,  Mundy, 
O'Flaherty,  Orr,  Pedigo,  Phillips,  Portlock,  Quarles,  Rives,  Summers,  Thornton,  Vincent, 
Walker,  Walter,  Woodhouse,  Wysor  and  Yancey — 45. 

Mr.  Meredith's  amendment  was  rejected. 

Mr.  Withers:    I  desire  to  offer  the  following  amendment: 

Amend  Section  1  by  inserting  in  line  2,  after  the  word  ''sheriff,"  the  words  "who 
shall,  in  addition  to  his  duties  as  sheriff,  perform  the  duties  of  treasurer,  as  are  now  or 
may  hereafter  be  prescribed  by  law:  Provided,  that  in  counties  of  more  than  30,000  in- 
habitants the  office  of  treasurer  may  be  created  by  law." 

Mr.  President,  this  is  the  old  fight  as  to  the  consolidation  of  the  Oiiices  of  sheriff 
and  treasurer.  I  shall  not  detain  the  Convention  except  to  say  that  it  involves  four 
simple  propositions:  Whether  the  Convention  desires  to  abolish  a  useless  office; 
whether  it  desires  to-  give  the  sheriff  something  to  do;  whether  it  desires  to  break  up 
the  pernicious  and  demioralizing  system  of  allowances,  whereby  an  office  that  does  not 
pay  without  an  allov/ance  may  be  kept  in  existence;  whether  it  desires  to  have  its  taxes 
collected  by  saving  those  allowances  and  saving  to  the  people  of  the  counties  of  the 
State  the  sum  of  forty-odd  thousand  dollars  a  year. 

Those  are  the  propositions  embraced  in  it,  and  nothing  more.  I  have  entered  so 
fully  into  this  matter  in  Committee  of  the  Whole  that  I  shall  not,  in  justice  to  the  Con- 
vention, in  justice  to  the  people  of  Virginia,  and  in  justice  to  myself,  attempt  to  restate 
In  detail  the  questions  involved,  which  are  the  four  I  have  just  announced  to  the  Con- 
vention. 

The  President:  The  question  is  upon  the  adoption  of  the  amendment  offered  by 
the  gentleman  from  Danville  (Mr.  Wither s>). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
31;  noes  42. 

Mr.  AVithers'  amendment  was  rejected. 

At  this  point  Mr.  Vv'alker  took  the  chair  as  presiding  officer. 

Mr.  Lindsay:  Mr.  President,  I  propose  the  same  amendment  as  the  one  just  re- 
jected reducing  the  number  to  15,000. 

The  Presiding  Officer:    The  Secretary  will  read  the  proposed  amendment. 

The  Presiding  Officer:  The  gentleman  from  Patrick  (Mr.  Hooker)  moves  to  amend 
that  amendment  by  striking  out  "fifteen  thousand"  and  inserting  "ten  thousand." 

The  Presiding  Officer:  The  question  is  on  the  amendment  of  the  gentleman  from 
Patrick  to  the  amendment  offered  by  the  gfentleman  from  Albemarle  (Mr.  Lindsay), 
by  striking  out  "fifteen  thousand"  and  inserting  "ten  thousand." 

The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  recurs  on  the  amendment  of  the  gentleman 
from  Albemarle  (Mr.  Lindsay). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
30;  noes,  46. 

Mr.  Lindsay's  amendment  was  rejected. 

Mr.  Brown:  Mr.  President,  I  move  that  the  vote  by  which  the  amendment  of  the 
gentleman  from  Warren  (Mr.  O'Flaherty),  to  strike  out  certain  v/ords  in  line  16,  was 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIKGIXIA. 


rejected,  be  reconsidered.  I  do  so  not  for  the  purpose  of  asking  that  that  amendment 
be  itself  voted  upon  again,  but  to  put  the  question  in  a  parhamentary  status,  so  that 
it  will  be  open  for  the  amendment  offered  by  the  gentleman  from  Scott  (Mr.  Richmond), 
which  was  ruled  out  of  order  by  the  President  because  it  was  offered  after  a  motion  to 
strike  out  had  been  carried  in  the  negative.  The  amendment  of  the  gentleman  from 
Warren  was  to  strike  out  the  latter  part  of  this  section,  beginning  in  line  16,  as  I  re- 
member it,  so  that  the  commissioners  of  the  revenue  would  be  elected  by  the  people. 

It  is  not  the  purpose  of  my  motion  to.  renew  that  fight,  but  to  place  it  in  a  position 
to  make  way  for  the  amendment  of  the  gentleman  from  Scott,  V\4iich  was  to  insert  the 
words  "elected  or  appointed,"  so  that  the  General  Assembly  may  decide  whether  the 
commissioners  of  the  revenue  shall  be  elected  or  appointed. 

Mr.  Thornton:  Mr.  President,  I  voted  with  the  majority  on  the  resolution  offered 
by  the  gentleman  from  Danville  (Mr.  Withers),  but  I  concur  in  all  that  my  friend  from 
Bedford  (Mr.  Browm)  has  stated.  I  think  the  Legislature  ought  to  have  the  right  either 
to  elect  or  appoint,  as  it  may  deem  desirable,  from  time  to  time. 

Mr.  Boaz:  In  regard  to  the  motion  to  reconsider,  while  it  may  not  have  been  the 
purpose  of  the  gentleman  from  Bedford  (Mr.  Brown)  to  reopen  the  whole  subject,  if 
it  is  carried  in  the  affirmative  it  will  reopen  the  whole  subject,  which  has  been  settled. 
I  hope  the  Convention  will  vote  down  the  motion  of  the  gentleman  from  Bedford. 

The  Presiding  Ofiicer:  As  the  Chair  understands  the  question  no  motion  to  re- 
consider is  necessary.  The  gentleman  from  V\^arren  (Mr.  O'Flaherty)  moved,  as  an 
amendment  to  Section  1,  to  strike  out  certain  words.  That  amendment  was  rejected. 
The  member  from  Scott  (Mr.  Richmond)  moves,  a,si  the  Chair  understands  it,  to  insert 
certain  words  in  that  same  section,  and  the  Chair  rules  that  that  motion  is  in  order 
without  any  motion  to  reconsider. 

The  Presiding  Ofiicer:  The  Secretary  will  read  the  amendment  proposed  hy  the 
gentleman  from  Scott  (Mr.  Richmond). 

Insert  after  the  word  "be,"  in  line  17,  the  words  "elected  or."  The  section  would 
then  read:  "And  there  shall  be  appointed  or  elected,  in  a  manner  to  be  provided  by  law, 
commissioners  of  the  revenue,"  etc. 

The  ayes  and  noes  were  ordered,  and  being  taken,  the  result  was  announced — ayes, 
41;  noes,  87 — as  follows: 

Ayes — Messrs.  Allen,  M.  H.  Barnes,  Blair,  Bristow,  Brown,  Clarence  J.  Campbell,  P. 
W.  Campbell,  Chapman,  Dunaway,  Earman,  Garnett,  Gillespie,  Gregory,  Gv^TIl,  Hamilton, 
Hancock,  Harrison,  Hatton,  Ingram,  Claggett,  B.  Jones,  Lawson,  Lovell,  Marshall,  Mon- 
cure,  R.  Walton  Moore,  Mundy,  O'Flaherty,  Orr,  Pedigo,  Phillips,  Quarles,  Richmond, 
Rives,  Stuart,  Summers,  Tarry,  Thom,  Thornton,  Vincent,  Walter  and  the  President — 41. 

Noes — Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Barbour,  Thomas  H.  Barnes, 
Boaz,  Bouldin,  Carter,  Cobb,  Crismond,  Epes,  Fairfax,  Gilmore,  Glass,  James  W.  Gordon, 
R.  L.  Gordon,  Green,  Hooker,  Hunton,  G.  W.  Jones,  Keezell,  Kendall,  Lindsay,  Mcllwaine, 
Meredith,  Parks,  Pollard,  Robertson,  Stebbins,  Turnbull,  Waddill.  Y\^alker,  Watson,  Wes- 
cott,  Wise,  Withers,  Woodhouse  and  Wysor — 37. 

Mr.  Richmond's  amendment  was  adopted. 

Mr.  Brown:    IMr.  President,  I  offer  the  following  amendment: 

In  line  5,  after  the  word  "court,"  insert  the  following:  "Except  that  the  General 
Assembly  may  provide  for  the  election,  in  counties  of  a  population  of  20,000  or  more,  of 
a  clerk  for  the  county,  who  shall  be  clerk  of  the  board  of  supervisors,  recorder  of  deeds 
for  the  county,  and  who  shall  have  charge  of  the  land  books,  and  be  charged  with  such 
other  duties  as  may  be  prescribed  by  law." 

Mr.  Harrison:  I  move  to  amend  the  amendment  of  the  gentleman  from  Bedford 
(Mr.  Brown)  by  striking  out  the  limit  of  20,000. 

The  amendment  would  then  read:  "Except  that  the  General  Assembly  may  pro- 


1780 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


vide  for  the  election  of  a  clerk  for  the  county,  who  shall  be  clerk  of  the  board  of 
supervisors,"  etc. 

The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  recurs  on  the  amendment  of  the  gentleman 
from  Bedford  (Mr.  Brown). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
8;  nays,  71. 

The  amendment  was  rejected. 

Mr.  Keezell:    I  offer  the  following  amendment: 

At  the  end  of  line  19  insert  the  words  "but  should  commissioners  of  the  revenue  be 
chosen  by  election  then  they  shall  be  ineligible  for  re-election  for  the  next  succeeding 
term,." 

Mr.  President,  it  will  be  remembered  that  when  the  Committee  on  County  Organiza- 
tion brought  in  its  report  it  contained  a  provision  that  the  commissioners  of  the  reven© 
should  be  elected  by  the  people,  but  their  tenure  of  office  should  be  limited  to  ond 
term.  The  Committee  of  the  Whole  took  a  different  view,  and  amended  their  report 
so  as  to  provide  for  the  appointment  of  commissioners  of  revenue  in  a  manner  to  be 
prescribed  by  law.  This  Convention,  by  a  very  narrow  margin,  has  reversed  the  action 
of  the  Committee  of  the  Whole,  and  has  relegated  to  the  General  Assembly  the  duty 
of  providing  by  law  for  the  appointment  or  election  of  these  officers.  I  have  no  objec- 
tion personally  to  that  power  going  to  the  Legislature,  provided  we  guard  this  point, 
that  if  they  see  fit  to  elect  these  officers,  it  matters  not  how  long  or  how  short  their 
terms  may  be,  they  shall  be  ineligible  for  re-election  to  the  same  office  at  the  end  of 
their  term.  I  think  that  ought  to  be  provided,  because  it  is  an  almost  unanimously 
admitted  fact  on  all  sides,  that  the  weakest  point  in  our  whole  financial  system  is  the 
commissioners  of  the  revenue,  and  that  the  weakness  of  it  is  that  it  gives  that  officer 
an  opportunity  to  electioneer  from  the  time  he  is  elected,  in  order  to  perpetuate  him- 
self; doing  this  to  the  disadvantage  of  the  honest  tax-payers  and  to  the  advantage  of  the 
dishonest  one,  with  whom  he  wants  to  curry  favor.  If  this  amendment  is  adopted, 
I  think  it  will  rectify  that  difficulty. 

Mr.  Mcllwaine:  Mr.  President,  it  does  not  seem  to  me  that  is  the  way  to  rectify 
the  evil.  On  the  contrary,  let  us  reconsider  the  motion  and  go  back  and  strike  out 
"elected."  If  there  is  any  officer  in  the  State  of  Virginia  who  ought  to  have  experience 
in  the  matter  of  judging  the  value  of  property  and  how  to  get  at  it,  it  is  the  com*- 
missioner  of  the  revenue.  I  do  not  reckon  there  is  any  gentleman  on  the  floor  whc 
will  deny  that;  and  for  us  to  say  that  he  can  be  elected  by  the  people,  and  if  elected 
by  the  people  he  is  to  serve  but  one  term,  is  striking  at  the  very  root  of  the  welfare 
of  the  State  of  Virginia  in  having  such  an  office. 

On  motion  of  Mr.  Wise,  the  Convention  adjourned  until  to-morrow,  Saturday, 
January  11,  1902,  at  10  o'clock  A.  M. 


SATURDAY,  January  11,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

The  President:  The  unfinished  business  is  the  consideration  of  the  report  of  the 
Committee  on  Organization  and  Government  of  Counties,  as  amended  by  the  Com- 
mittee of  the  Whole. 

At  this  point  Mr.  Walker  took  the  Chair  as  presiding  officer. 

Mr.  Keezell:  Mr.  President,  yesterday  when  the  Convention  adjourned  I  made  the 
statement  that  when  the  Committee  on  the  Organization  and  Government  of  Counties  had 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIRGIXIA. 


1781 


brought  in  their  report  they  recommended  the  election  of  commissioners  of  the  revenue 
by  the  people  for  one  term,  making  them  ineligible  for  re-election.  The  Committee  of 
the  Whole  seemed  to  think  this  was  not  exactly  a  proper  disposition  of  the  matter,  and 
that  it  was  not  even  safe  to  elect  the  commissioners  of  the  revenue  for  one  term.  They, 
therefore,  reversed  the  action  of  the  Committee  on  Organization  of  Counties  and  rele- 
gated the  matter  to  the  Legislature,  authorizing  the  Legislature  to  provide,  by  law, 
for  the  appointment  of  these  officers. 

The  Convention  on  yesterday  reversed  the  action  of  the  Committee  of  the  Whole 
on  this  question,  delegating  this  matter  to  the  Legislature  and  providing  that  these 
officers  should  be  "elected  or  appointed,"  according  to  the  provision  of  law.  In  order 
to  carry  out  the  views  of  the  Committee  on  the  Organization  and  Government  of 
Counties  I  offered  an  amendment,  which  provides  that  if  the  office  is  to  be  an  elective 
one,  the  officer  elected  shall  not  be  eligible  to  re-election,  but  shall  be  confined  to  one 
term.  If  the  Legislature  decides  that  he  shall  be  appointed,  then  he  is  eligible  to  reap- 
pointment, if  it  is  so  desired. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
44:  noes,  26. 

The  amendment  was  agreed  to. 

Mr.  Barbour:    I  move  to  strike  out  line  20  of  that  section. 

Mr.  Thornton:  That  provision  appears  in  the  present  Constitution  and  I  think  it 
would  be  well  to  leave  it.  If  we  should  strike  out  the  office  of  superintendent  of  the 
poor  our  action  might  be  misconstrued.  The  committee  considered  that  matter  fully 
and  it  was  thought  better  to  leave  it  in  the  Constitution. 

Mr.  Barbour:  Mr.  President,  one  of  the  worst  features  of  the  present  Constitution 
is  that  it  includes  a  large  number  of  petty  officers  of  this  land.  There  is  no  earthly 
use  of  having  such  officers  specifically  mentioned  in  the  Constitution.  The  Legislature 
will  have  them  if  they  are  necessary,  and  will  not  have  them  if  they  are  not  necessary. 
I  hope  the  provision  will  be  stricken  out. 

Mr.  Harrison:  I  agree  with  the  gentleman  from  Culpeper.  It  seems  to  me  we 
are  losing  a  very  fine  opportunity  in  this  Convention  to  get  rid  of  a  lot  of  petty  officers. 
These  matters  can  be  arranged  by  the  boards  of  supervisors  of  the  counties,  in  such 
a  way  as  they  think  proper,  which  would  be  a  great  deal  better  arrangement  than  to 
have  a  lot  of  little  county  officers  specifically  mentioned  in  the  Constitution.  I  hope  the 
amendment  of  the  gentleman  will  prevail.  I  have  understood  that  one  of  the  purposes 
for  which  this  Convention  was  called  was  to  free  the  State  from  a  number  of  these 
insignificant  little  offices. 

The  ayes  and  noes  were  ordered,  and  being  taken  resulted — ayes,  23;  noes,  51. 

The  amendment  was  rejected. 

Mr.  Parks:  :\Ir.  President,  I  desire  to  offer  an  amendment  to  insert  in  line  20  the 
words  ■•'and  there  shall  be  appointed  hy  the  board  of  supervisors  of  each  county  one 
superintendent  of  the  poor  and  one  countj^  surveyor." 

Under  the  section  as  it  now  stands,  without  providing  for  the  appointment  by  the 
board  of  supervisors  of  each  county,  those  officers  could  be  either  elected  or  appointed 
as  the  Legislature  may  determine.  Mr.  President,  the  office  of  superintendent  of  the 
poor,  as  well  as  the  office  of  county  surveyor,  is  an  important  one.  The  office  of 
superintendent  of  the  poor  is  not  such  an  office  as  is  sought  after  by  men  who  are 
competent  to  discharge  the  duties  of  it.  In  the  coimties,  we  have  poorhouse  farms. 
We  need  men  there  who  know  something  about  the  management  of  a  farm — not  merely 
men  with  kindness  of  heart  and  a  proper  disposition  to  look  after  the  unfortunate 
inmates,  but  who  are  capable  of  looldng  after  the  interests  of  the  farm  and  seeing  that 
it  is  managed  properly.  We  have  in  the  country  plenty  of  men  who,  if  you  make  it  elec- 
tive by  the  people,  will  go  around  over  the  county  and  hobnob  and  electioneer  and  be 
elected,  but  who  are  totally  unfit  for  the  position. 

Mr.  Keezell:    May  I  call  the  gentleman's  attention  to  the  fact  that  it  was  the 


1782 


DEBATES  OF  THE  COjStSTITUTIOXAL  CO^TVENTION  OE  VIKGINIA. 


evident  intention  of  the  language  in  the  report  to  provide  that  the  county  surveyor  and 
the  superintendent  of  the  poor  should  be  appointed? 
Mr.  Parks:    Yes,  sir;  I  will  call  attention  to  that. 

Men  who  are  really  qualified  are  not  anxious,  to  get  the  position,  because  it  is 
not  a  very  pleasant  place.  These  other  men  will  go  around  and  electioneer  for  it,  and 
the  result  will  be  that  v/e  will  have  men  foisted  upon  the  people  by  election  whoi  are 
totally  unfit  and  incompetent  to  discharge  the  duties  of  the  place  in  the  interests  of  the 
people. 

Take  the  office  of  county  surveyor.  Why,  sir,  in  my  county  we  have  no  county 
surveyor  at  all.  We  have  surveyors  there,  but  no  man  who  is  a  surveyor  will  accept 
the  ofiice  of  county  surveyor;  one  reason  being  that  the  law  as  it  now  stands  requires 
a  very  large  bond  of  the  county  surveyor,  which,  in  my  opinion,  is  very  foolish,  and 
they  will  not  execute  the  bond.  Wp  have  m^en  there  who  pretend  to  be  surveyors  who 
Vv'Ould  accept  the  position  if  they  were  appointed,  but  the  court  will  not  appoint  them. 
If  you  make  it  an  elective  office,  the  men  who  now  run  a  line  with  a  grapevine,  and 
knovv"  just  as  much  about  the  proper  surveyor's  instruments  as  a  hog  knows  about  a 
holiday,  will  run  for  the  office  and  be  elected. 

Mr.  Summers:  Mr.  President,  if  it  be  in  order,  I  desire  to  submit  as  an  amend- 
ment to  that  amendment,  the  words  "to  be  elected  by  the  people." 

The  amendment  was  rejected. 

Mr.  Mcllwaine:  Mr.  President,  I  just  want  to  say  one  word  in  regard  to  the  failure 
to  give  the  people  the  right  to  do  what  belongs  to  them.  It  seems  to  me  that  the  right 
for  the  Convention  to  take  is  that  v/hich  is  expressed  by  their  vote,  and  not  only  to 
give  to  the  people  all  the  rights  which  belong  to  them,  but  in  such  a  case  as,  this  to  save 
the  people  from  the  unnecessary  burden  of  having  imposed  upon  them  the  duty  of 
selecting  the  men  who  can  be  generally  selected  by  others. 

Now,  sir,  I  am  not  a  candidate  for  office;  I  am  not  an  aspirant  for  anything  in  the 
future  at  all.  I  have  lived  among  the  people  during  my  life,  and  I  feel  that  one  of 
the  ways  in  which  I  wish  to  express  my  consideration  for  the  people  is  to  save  them 
all  unnecesisary  trouble  and  burden;  and  the  idea  of  imposing  the  election  of  every 
little  county  officer  upon  the  people  of  our  counties  is,  to  my  mind,  an  absurdity  and 
an  injustice. 

The  Presiding  Officer:    The  question  is  on  agreeing  to  the  amendment  of  the  gen- 
tleman from  Page  (Mr.  Parks). 
The  amendment  was  adopted. 

Mr.  Parks:  Mr.  President,  I  have  another  amendment  which  I  desire  to  offer.  It 
is  as  follows: 

After  the  word  "law"  in  line  17,  strike  out  all  down  to  and  including  the  v/ord  "and," 
in  line  18,  and  insert  the  following:  "One  commissioner  of  the  revenue  for  each  county: 
Provided  that,  in  counties  of  30,000  population  or  more,  there  may  be  two  commissioners 
of  the  revenue  of  such  county." 

Mr.  President,  my  reason  for  offering  that  amendment  is  thisi:  In  some  of  the 
large  counties  of  the  State  it  has  been  provided  by  the  Legislature  that  there  shall 
be  two  commissioners  of  the  revenue.  In  some  of  the  counties  there  is  a  provision 
that  there  shall  be  a  commissioner  of  the  Revenue  for  each  magisterial  district  in  such 
county.  That  does  not  prevail  in  many  of  the  counties,  but  it  does  prevail  in  a  few 
of  them.  There  are,  in  my  judgment,  two  evil  results  flowing  from  that.  One  of  them 
is  the  very  same  evil  that  results  now  in  the  various  counties  of  the  State — inequality 
of  assessment.  That  is  to  say,  the  same  class  of  property  assessed  at  one  figure  in  one 
district  will  be  assessed  at  another  figure  in  another  district  in  the  same  county. 
Where  the  counties  are  large,  where,  as  provided  by  the  amendment,  the  population  is 
30,000  or  more,  it  might  be  well  to  have  as  many  as  two  commissioners  of  the  revenue. 

There  is  another  evil  flowing  from  it.  In  each  Legislature  that  assembles  petitions 
come  up  from  every  one  of  my  counties  asking  that  a  commissioner  of  the  revenue 


DEBATES  OE  TEIE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA. 


1783 


Tdg  elected  in  each  magisterial  district,  and  efforts  are  made  to  that  end  in  the  Legisla- 
triie.  These  petitions  are  not  confined  to  the  large  counties,  sir,  hut  come  from  the 
small  counties  as  well,  and  they  practically  say  "Rockingham  has  more  than  one, 
Shenandoah  has  more  than  one,  another  county  has  more  than  one,  and  why  should 
not  Yve  haYe  a  commissioner  of  the  revenue  in  each  magisterial  district?"  The  result 
is,  that  after  a  while  Y^e  Y'ill  get  back  to  the  same  old  system,  which  the  people 
-repudiated,  of  having  a  commissioner  of  the  revenue  in  each  magisterial  district,  and 
the  same  inequality  of  assessment  found  noAv  in  portions  of  the  State  y411  be  found 
for  the  very  same  reason  to  exist  in  various  counties  of  the  State.  I  hope,  sir,  that  the 
Convention  y^II  adopt  this  amendment  and  protect  the  people  from  these  evil  results. 
Let  one  man  in  each  county  be  responsible,  personally,  for  the  result  of  the  assess- 
ment. 

Mr.  Turnbull:  In  a  large  county  containing,  say,  18,000  inhabitants,  is  it  an  impos- 
sibility for  one  commissioner  of  the  revenue  to  perform  the  duty,  as  provided  by  law? 
I  Y^ant  to  get  at  my  friend's  idea  of  a  remedy  for  the  difficulty  in  counties  of  that  sort. 

Mr.  Parks:  I  Y^ant  to  remedy  it  as  it  vcas  remedied  before.  Let  there  be  one 
commissioner  of  the  revenue,  and  let  him  appoint  men  as  deputies  in  the  different 
■districts.  Then  you  Yill  have  one  man  responsible — one  man  to  go  over  the  property 
^nd  see  that  the  assessments  are  equalized  in  the  various  districts.  Where  you  have 
different  men  in  different  districts,  no  one  man  is  responsible.  You  have  inequality' 
of  assessment  in  the  different  districts  of  the  same  county,  just  as  inequality  of  assess- 
ments now  exist  in  one  county.  That  is  a  matter  that  members  of  the  Convention 
know  ought  to  be  corrected.  It  cries  to  Heaven  for  correction,  in  the  name  of  justice 
and  right  and  equality  and  honesty  between  the  people,  and  yet  the  Legislature  so  far 
has  been  powerless  to  correct  it.  I  want  to  prevent  these  counties  from  coming  to  the 
Legislature  and  having  commissioners  of  the  revenue  appointed  for  little  districts  in 
all  the  counties  of  the  State,  which  brings  about  this  inequality  of  assessment. 

Mr.  Turnbull:  Would  not  the  same  thing  apply  to  a  large  county  as  to  a  small  one, 
if  they  have  deputies? 

Mr.  Parks:  I  admit  that,  sir;  but  in  a  county  of  30,000  inhabitants  or  more,  Yiiich 
is  equal  in  many  instances  to  two  counties,  and  in  some  instances  to  three  counties, 
the  situation  is  different.  As  I  say,  these  small  counties  are  coming  in  and  asking 
for  commissioners  of  the  revenue  at  the  hands  of  the  Legislature;  and  the  gentleman 
from  BrunsY^ick  knoY^s  very  Y'ell  that  in  the  Legislature,  Y^here  a  representative  from 
a  county  says  "My  people  want  this,"  the  members  of  the  Legislature  throY^  the 
responsibility  upon  that  member,  and  vote  for  it  because  he  wants  it.  It  seems  to  me 
this  matter  ought  to  be  corrected,  and  that  we  ought  to  put  it  in  the  Constitution  so 
as  to  prohibit  the  Legislature  from  increasing  this  evil  as  the  years  go  by,  as  it  has 
been  increasing  in  the  past. 

Mr.  Richmond:  Mr.  President,  I  hope  the  amendment  of  the  gentleman  from  Page 
y411  not  prevail.  'My  county  has  tY'o  commissioners  of  the  revenue,  one  on  the  north 
side  and  one  on  the  south  side.  It  is  a  very  difficult  county  to  canvass.  It  is  moun- 
tainous and  broken.  Many  streams  and  rivulets  floY'  through  it;  and  it  is  Y/ith  great 
■difficulty  that  the  two  commissioners  can  make  a  canvass  of  the  county  so  as  to  get 
their  reports  in  by  the  time  fixed.  I  have  been  frequently  consulted  by  the  commis- 
sioners of  the  revenue  in  relation  to  the  difficulties  of  completing  their  work  in  time. 
They  v:ork  hard.  They  make  a  house  to  house  canvass,  in  order  to  secure  a  proper 
list  of  the  taxation.  No  one  man  can  do  it,  and  it  is  with  difficulty  that  tY'o  men  per- 
form the  duties. 

I  do  not  think  the  position  which  the  gentleman  from  Page  has  taken  is  tenable 
at  all.  He  Y-ants  to  have  one  man  appointed  who  will  have  the  right  to  appoint 
deputies,  so  that  the  commissioner  can  see  that  everything  is  done  right  and  be  re- 
sponsible for  it.  Would  he  not,  of  necessity,  have  to  take  the  word  and  the  action  of 
his  deputies?  You  ought  to  have  enough  men  to  accomplish  the  Y^ork.  It  is  impossible 
for  any  one  man  in  my  county  to  do  the  work  unless  you  extend  the  time.    You  might 


1784  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

give  him  more  time,  and  that  would  enable  him  to  do  it.  In  six  months  he  could 
prohably  do  it,  if  he  worked  every  day,  and  there  were  no  hot  days,  or  high  water,  or 
anything  of  that  sort;  but  under  existing  law  it  is  with  difficulty  that  two-  men  can 
perform  the  duty.  Why  have  one  man  and  let  that  one  man  have  deputies?  What 
reason  is  there  in  that?  There  is  no  economy  in  it.  It  lessens  the  responsibility,  be- 
cause the  one  commissioner  would  be  bound  to  take  the  action  of  his  deputies.  He 
will  be  compelled  to  do  so  unless  he  goes  back  over  the  work  done  by  his  deputy,  and 
he  cannot  do  that.  So  I  hope  the  amendment  of  the  gentleman  from  iPage  will  not 
prevail. 

Mr.  Earman:  Mr.  President,  I  rise  to  urge  the  Convention  not  to  support  the 
resolution  offered  by  the  gentleman  from  Page.  I  have  had  a  great  deal  of  practical 
experience  as  a  commissioner  of  the  revenue.  I  speak,sir,  for  my  own  county,  in  which 
I  have  been  a  commissioner  of  the  revenue  of  one  district  for  fourteen  years,  and  to 
talk  about  one  commissioner  of  the  revenue  being  able  to  do  all  the  work  in  a  county 
like  the  county  of  Rockingham  is  an  absurdity.  Gentlemen  who  have  had  no-  practical 
experience,  gentlemen  who  know  nothing  about  the  practical  work  of  a  commissioner 
of  the  revenue,  can  hardly  imagine  the  amount  of  work  that  is  imposed  upon  him  in 
the  performance  of  his  duties.  In  one  of  the  five  districts  in  the  county  of  Rockingham 
it  takes  me  from  the  month  of  February  until  some  time  in  August  to  complete  my 
work,  and  then  we  are  delayed  by  the  Legislature.  Our  interrogatories  are  withheld 
awaiting  the  action  of  the  Legislature,  and  we,  as  commissioners  of  the  revenue,  are 
compelled  to  go  to  the  county  court  and  ask  for  a  deputy,  in  order  that  we  may  get 
our  work  done  in  the  time  required.  Yet,  sir,  the  laws  of  the  State,  as  they  stand  now, 
require  the  commissioner  of  the  revenue  to  have  his  work  completed  by  the  fifteenth 
day  of  July. 

Now,  as  to  this  inequality  of  assessment.  I  have  listened  very  attentively  to  the 
arguments  adduced  here  relative  to  the  work  of  the  commissioner  of  the  revenue,  and 
it  is  true.  I  cannot  concur  with  this  Convention,  and  I  am  sorry  to  say  that  I  cannot 
concur  with  my  colleague  from  Rockingham  county,  as  to  the  appointment  of  the  Com- 
missioners of  the  revenue  or  as  tO'  allowing  them  toi  serve  only  one  term. 

As  to  the  point  now  raised  by  the  gentleman  from  Page  (Mr.  Parks),  that  one 
man  shall  do  the  work  of  the  county,  he  would  necessarily  be  compelled  to  have 
deputies  appointed  for  the  various  districts,  and  he  says  by  that  system  the  principal 
commissioner  of  the  revenue  of  the  county  would  be  responsible  for  the  whole  work. 
Inequality?  How  would  you  remedy  the  inequality  of  the  assessment?  I  fear,  sir, 
that  all  the  combined  wisdom  of  this  Constitutional  Convention  can  devise  no  means  by 
which  you  can  compel  every  man  to  put  in  a  report  of  valuation  equal  to  that  of  every 
other  man.  The  commissioner  of  the  revenue  is  required  by  the  laws  of  the  State  to 
administer  an  oath  to  every  man  who  makes  a  report  of  his  property,  but  that  is  just 
as  far  as  you  can  go.  When  you  put  a  man  on  the  witness  stand  in  court,  you  have 
that  man  take  an  oath  to  speak  the  truth  and  nothing  but  the  truth,  but  that  is  as  far 
as  the  court  can  go. 

Mr.  Waddill:  The  provision  now  in  force  is:  "The  commissioner  or  any  one  of 
his  duly  qualified  deputies  shall,  upon  his  own  view  or  upon  such  information  as  he 
may  obtain  or  possess,  assess,  a  fair  cash  valuation  on  all  property  which  appears  td 
be  owned  by  the  tax-payers  from  the  answers  to  the  interrogatories,  as  required  by  the 
two  preceeding  sections." 

Mr.  Earman:  That  is  right,  sir;  but  I  say  you  have  to  get  the  information  of  the 
kind  and  quality  of  the  property  under  oath. 

How  am  I,  as  commissioner  of  the  revenue,  or  how  are  you,  sir,  if  you  were  com- 
missioner of  the  revenue,  to  know  anything  about  the  value  of  property  unless  it  comes 
from  the  man  who  owns  the  property? 

Mr.  Waddill:    You  must  inspect  the  property  and  fix  the  valuation  yourself. 

Mr.  Earman:  I  say  you  are  dealing  with  an  impossibility.  It  is  impossible  to 
inspect  the  property.    Are  you  going  to  go  to  a  man's  house  and  go  from  the  cellar  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OP  VIRGINIA. 


1T85 


garret  and  look  at  everything  in  his  house  when  you  want  to  assess  his  household 
property? 

Mr.  Willis:  Suppose  a  man  had  a  horse  and  put  its  value  at  $25,  and  you 
assessed  it  at  $40.  Suppose  you  knew  that  horse  was  worth  $150  or  $200.  Do  you 
mean  to  say  that  man's  oath  would  be  conclusive  as  to  the  value  of  the  horse  and  you 
would  not  go  behind  it? 

Mr.  Earman:  Certainly  not;  but  suppose  I  approach  a  man  and  interrogate  him  as 
to  his  property.  I  ask  him  how  many  horses  he  has.  If  he  should  say  he  was  going  to 
look  after  those  horses,  it  would  be  an  impossible  matter  for  me  to  go  all  over  his  farm. 
Some  of  his  horsies  might  be  fifty  or  a  hundred  miles  away,  or  his  cattle  might  be  a 
hundred  miles  away  in  the  mountains.  If  he  said  he  had  five  head  of  horses,  and  out 
of  that  five  head  there  was  one  lame,  one  blind  and  another  had  reached  his  majority, 
and  I  Vv^ere  required  to  put  a  value  on  them,  and  averaged  the  value  of  that  stock,  how 
am  I  going  to  put  it?  Can  I  say  those  five  horses  are  worth  $500?  No,  sir;  there  is  a 
blind  horse  among  them;  there  is.  a  lame  horse  among  them;  there  is  one  twenty-one 
years  of  age  among  them;  there  is  a  colt,  probably,  among  them.  I  would  say  to  the 
man.  "I  want  to  put  a  fair  tax  valuation  on  your  property;"  and  if  he  should  say  $40 
is  a  fair  cash  value  on  an  average  for  those  horses,  I  would  have  to  accept  his  state- 
ment. Should  I  say  to  him  then,  "I  do  not  respect  your  oath?"  When  he  put  the 
valuation  on  his  household  property,  am  I  going  to  tell  him  I  do  not  respect  his  ca.'h'' 
Is  that  done  in  court?  The  only  means  you  have,  gentlemen,  of  ascertaining  the  value 
is  the  statement  of  the  man  under  the  oath  that  is  prescribed  on  this  blank. 

Then  we  come  to  that  invisible  property  that  is  so  much  spoken  of — his  bonds, 
his  money  in  bank,  money  in  his  pocket.  How  are  you  going  to  arrive  at  the  value 
of  that?  Can  you  go  on  his  premises  and  look  through  his  bureau  drawers  and  see 
how  many  bonds  he  has?  You  cannot  do  it.  You  have  simply  to  take  the  man's  oath. 
The  commissioner  who  is  appointed  will  find  the  same  difficulty  that  is  encountered 
by  the  man  who  is  elected.  He  cannot  find  the  property.  There  is  no  set  of  commis- 
sioners in  any  county  or  any  State  who  can  assess  property  equally  on  all  men.  No- 
matter  Vihat  judgment  may  be  exercised  or  what  care  is  taken,  it  cannot  be  done. 

Mr.  Keezell:  If,  under  the  law  as  it  now  exists,  the  commissioner  of  the  revenue 
goes  to  a  farmer  and  the  farmer  reports  he  has  ten  head  of  cattle,  and  the  commissioner 
of  the  revenue,  from  his  own  personal  knowledge,  knows  that  he  has  a  hundred,  I 
want  to  know  whether  or  not  the  commissioner  is  bound  to  take  that  return. 

Mr.  Earman:    Certainly  not. 

Mr.  Keezell:  And  whether  it  is  not  his  duty,  if  he  believes  that  men  of  that  sort 
have  been  shirking  their  responsibility,  to  report  to  the  clerk  of  the  court  a  list  of  the 
people  whom  he  believes  have  shirked  responsibility,  together  w^ith  the  names  of  the 
witnesses  by  whom  he  can  prove  that  dereliction,  to  be  presented  to  the  grand  jury; 
and  I  will  ask  him  whether  it  has  been  the  custom  of  the  commissioners  of  revenue 
in  the  county  of  Rockingham  to  make  such  reports  to  the  clerk  as  are  required  by  law. 

Mr.  Earman:  Well,  this  is  his  duty.  I  admit  that;  but  I  do  not  know  what  has 
been  the  custom  of  all  the  commmissioners. 

Mr.  Keezell:  I  will  ask  him  whether  he  has  ever  done  it  in  the  fourteen  years 
that  he  has  been  commissioner  of  the  revenue. 

Mr.  Earman:  No,  sir;  I  treat  other  men  as  I  treat  you,  sir.  I  presume,  when 
I  ask  you  the  question,  you  are  temng  me  the  truth,  although  I  do  not  know  from  my 
own  knowledge  w^hether  you  have  done  it  or  not  (laughter) ;  and  I  have  no  right,  sir, 
from  your  record,  or  from  the  record  of  those  men  whom  I  assess,  to  believe  they  are 
liable  to  falsehood. 

Mr.  Carter:  If  that  is  the  universal  custom,  if  the  presumption  is  they  are  all 
telling  the  truth,  under  all  circumstances,  why  have  any  commissioners  of  the  revenue? 
Why  not  allow  them  to  make  a  return  without  the  commissioners? 

Mr.  Earman:  I  would-be  glad,  sir,  if  they  could  all  make  return;  but  that  is  im- 
practicable. You  are  obliged  to  have  a  commissioner  of  the  revenue,  or  some  person 
113— Const.  Deb. 


1786  DEBATES  OF  THE  CONSTITUTIONxVL  CONYENTIOIST  OF  VIRGINIA. 

to  look  after  the  tax-payer,  to  keep  the  books  and  issue  licenses,  and  all  that  sort  of 
thing.  That  has  tO'  be  done,  gentlemen,  and  you  know  very  well  that  you  could  not 
dispense  with  the  officer  of  commissioner  of  the  revenue. 

That  is  not  the  question,  either.  The  question  is  as  to  the  equality  of  taxation.  I 
ask  the  question,  and  I  pause  for  the  answer,  whether,  with  all  your  legal  wisdom, 
any  gentleman  will  get  up  here  and  devise  any  plan  or  recommend  any  means  by  which 
you  can  make  all  men  tell  the  truth  and  make  statements  exactly  alike  as  to  the  value 
of  their  respective  properties? 

It  is  true,  gentlemen,  there  are  probably  men  in  our  county,  and  in  all  counties, 
who  attempt  to  evade,  and  possibly  do  evade,  paying  a  proper  tax  on  their  property; 
but  the  question  is,  how  are  we,  as  commissioners  of  the  revenue,  to  overcome  that 
great  difficulty  and  trouble?  As  I  said  before,  the  only  thing  a  commissioner  of  the 
revenue  can  resort  to  when  he  does  not  know  the  amount  of  property  the  tax-payer 
owns,  when  he  does  not  know  the  amount  of  bonds  he  may  have,  when  he  does  not 
know  the  number  of  cattle  he  may  have  scattered  about  over  the  hills,  is  to'  have  the 
tax-payers  swear  that  he  has  so  many  cattle,  so  many  horses,  so  many  hogs,  so  many 
sheep,  so  much  in  bonds  and  so  much  money  on  deposit  in  the  bank.  That  is  the  only 
and  the  best  evidence,  gentlemen,  that  you  can  possibly  arrive  at. 

The  gentleman  from  Page,  by  his  amendment,  proposes  to  have  one  commissioner 
of  the  revenue  in  a  county  like  Rockingham,  where  we  have  five  commissioners  now, 
who  have  to  work  like  Trojans  to  get  the  work  done  in  time.  There  is  hardly  one  out 
of  the  five  who  gets  his  books  in  according  to  the  prescribed  limits  of  the  law.  Sup- 
pose Mr.  A  is  commissioner  of  the  county  of  Rockingham,  and  he  employs  Mr.  B  in 
one  district,  Mr.  C  in  another  district,  and  Mr.  D  in  another  district,  separate  and  apart 
from  his  own  work.  The  absurd  proposition  is  made  that  he  must  know  how  much  and 
what  kind  of  property  all  these  men  may  assess  in  the  respective  districts,  without 
going  himself  to  inspect  them.  It  is  a  matter  of  impossibility;  and  I  do  hope  the 
amendment  of  the  gentleman  from  Page  will  not  prevail. 

The  Presiding  Officer:  The  pending  question  is  on  the  amendment  of  the  gentle- 
man from  Page  (Mr.  Parka). 

The  amendment  was  rejected. 

Mr.  Thomas  H.  Barnes:    I  move  that  Section  1  be  adopted  as  a  whole. 
Section  1  was  adopted. 

The  Presiding  Officer:    The  Secretary  will  read  Section  2. 

Sec.  2.  The  magisterial  districts  shall,  until  changed  by  law,  remain  as  now  con- 
stituted: Provided,  that  hereafter  no  additional  districts  shall  be  made  containing  less 
than  thirty  square  miles.  In  each  district  there  shall  be  elected  one  supervisor.  The 
supervisors  of  the  districts  shall  constitute  the  board  of  supervisors  of  the  county,  who 
shall  meet  at  fixed  periods  and  as  often  as  may  be  necessary,  fix  the  county  and  district 
levies,  pass  upon  all  claims  against  the  county  and  perform  such  duties  as  may  be  required 
by  law. 

Mr.  Richmond:  I  desire  to  offer  an  amendment  to  Section  2,  to  come  in  line  16, 
after  the  word  "county."  I  desire  to  insert  the  words  "may,  in  their  discretion,  require 
all  able-bodied  male  persons,  between  the  ages  of  16  and  50  years,  to  work  on  some 
public  road  in  the  vicinity  v/here  such  persons  reside,  not  less  than  three  nor  more 
than  five  days  in  one  year,  without  compensation,  under  such  regulations  as  may  be 
provided  by  law:  provided,  such  persons  may  furnish  a  sufficient  substitute  to  work 
in  his  stead;  and  in  addition  thereto  levy  a  tax  of  not  exceeding  25  cents  on  the  $100 
in  value." 

Mr.  Richmond:  Mr.  President,  it  is  well  known  to  every  man  on  this  floor  that 
for  more  than  200  years,  beginning  v/ith  the  earliest  period  of  our  colonial  history,  all 
the  able  persons — that  is,  all  persons  16  years  of  age  and  above — were  required  to  work 
on  the  streets  and  public  roads  of  the  common  country.  That  continued  to  be  the  law 
until  1894,  when  a  case  came  up  from  Louisa  coimty,  in  which  some  person  there 
refused  to  work  upon  the  road.    He  was  arrested  and  fined  upon  a  capias  pro  fine  and 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGTXIA. 


1787 


imprisoned.  A  writ  of  habeas  corpus  was  sued  out  for  the  prisoner  before  the  Supreme 
Court  of  the  State,  and  that  court  held  that  the  law  was  unconstitutional;  that  it  was 
a  poll  tax.  or  a  tax  upon  the  head,  and  not  a  police  regulation. 

The  decision  was  made  by  a  divided  court — two  of  the  judges,  Lewis  and  Lacey, 
dissenting.  Right  then  in  our  section  of  the  country  we  ceased  to  have  any  roads,  and 
have  not  had  any  from  that  time  until  now.  The  decision  was  not  acquiesced  in  and 
considered  to  be  the  law  by  Judges  Lewis  and  Lace^',  but  the  people  had  to  acquiese 
in  that  decision  of  the  court,  and  it  became  the  paramount  law  of  the  land,  and  there 
has  been  no  opportunity  to  remedy  it  until  now. 

Such  a  provision,  in  my  humble  judgment,  is  not  one  of  equity  and  equality.  We 
would  get  a  contribution  from  certain  individuals  in  this  way  and  in  no  other  way; 
and  if  gentlemen  will  only  think  for  a  moment  and  consider  their  own  constituencies, 
they  will  remember  that  there  is  an  element  in  their  counties  which  contributes  nothing 
to  the  support  of  government.  This  class  of  people,  however,  are  protected  in  all  of 
their  rights,  privileges  and  liberties.  Property  pays  for  a  court-house  in  which  they 
can  assert  their  rights;  property  builds  churches  and  pays  preachers;  property  btiilds 
school-houses,  pays  the  teachers  and  educates  their  children.  Every  man  who  is  an 
able-bodied  man  should,  in  the  language  of  the  bill  of  rights,  be  so  identified  with  the 
community  in  which  he  lives  that  he  should  contribute  something  to  the  support  of  the 
government  and  its  institutions. 

The  man  withotit  property  has  to  have  roads  as  well  as  the  man  with  property; 
and  whilst  I  would  not  reqtiire  at  his  hands  that  which  he  cannot  give,  or  the  same  con- 
tribution that  I  vrould  require  of  the  man  who  has  property,  every  able-bodied  man 
should  be  made  to  feel  that  he  has  an  interest  in  the  community  in  which  he  lives.  He 
uses  the  public  roads  and  the  public  streets;  he  goes  to  the  places  of  public  resort.  He 
must  go  to  the  mills  to  get  bread  for  his  family.  He  cannot  travel  through  the  woods 
or  through  the  fields,  but  he  must  go  along  the  public  roads.  Is  it  asking  too  much 
to  require  that  class  of  men — not  for  money,  because  they  will  say  they  have  none — 
but  simply  for  muscle  to  contribute  this  small  part  of  their  time  to  the  public  good? 

Gentlemen,  in  my  section  of  the  county  we  are  without  roads.  Those  of 
you  who  have  Aisited  that  country — and  to  this  my  distinguished  friend  from 
the  county  of  Norfolk  (Mr.  Portlock)  is  a  witness: — know  that  we  would 
rather  build  twenty-five  miles  of  road  in  the  cotmty  of  Norfolk  or  in  any  part 
of  Eastern  Virginia  or  the  valley,  than  one  mile  in  the  counties  of  the  Southwest, 
especially  the  extreme  Southwest,  where  I  live.  In  those  little  sharp  mountains  and 
little  narrow  valleys  the  road  winds  around  and  over  the  hills  and  back  into  the  little 
valleys  and  up  again,  and  it  takes  a  great  deal  of  work  to  keep  them  in  order.  The 
country  is  so  situated  that  we  cannot  work  to  advantage,  or  keep  the  roads  in  the  state 
of  repair  in  which  they  are  kept  in  level  sections  of  the  country.  Our  people — and 
when  I  speak  of  our  people  I  mean  the  people  of  the  counties  of  Lee,  Scott,  Wise, 
Dickenson.  Washington.  Carroll,  Grayson,  &c. — are  unanimous  on  the  subject.  There 
is  not  a  dissenting  voice.  I  presented  this  matter  before  the  people  somewhat  on  the 
same  line  on  which  I  have  addressed  this  Convention,  only  more  extensively.  The  result 
shows  vrhether  or  not  my  position  was  approved  by  the  people.  There  was  not  a  dis- 
senting voice,  and  there  were  as  many  poor  men  present  as  there  were  men  of  property. 
When  I  say  poor  men, I  mean  men  without  property. 

Mr.  Pedigo:  Is  not  that  proposition  in  violation  of  a  provision  of  the  Constitution 
of  the  United  States,  which  provides  that  neither  slavery  nor  involuntary  servitude, 
except  in  punishment  of  crime,  shall  exist  in  the  L'^nited  States? 

Mr.  Richmond:  I  will  not  undertake  to  discuss  that  with  you  now.  If  you  will 
come  up  to  my  room  I  Avill  discuss  it  with  you  later.  (Laughter.)  We  have  quite  a 
ntimber  of  negi'oes  in  my  cotmty,  not  so  many,  to  be  sure,  as  in  others.  We  have  a 
hundred  or  a  hundred  and  fifty,  and  they  contribute  nothing  tinder  the  sun  to  the  sup- 
port of  government,  or  at  least  very  few  of  them.  Yet  they  travel  the  roads  and  we 
educate  their  children.    We  want  them,  and  I  will  say  we  v\'ant  some  poor  white  men, 


1788  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


as  well  as  the  negroes,  to  contribute  something  to  the  institutions  of  the  country  and 
feel  that  they  have  an  interest  in  the  government  and  in  the  community  in  which  they 
live. 

Mr.  President,  the  amendment  provides  for  labor,  and  it  likewise  provides  that  a 
tax  of  not  to  exceed  twenty-five  cents  on  a  hundred  dollars  shall  also  be  levied  on  real 
and  personal  property  for  certain  road  purposes.  All  men,  whether  they  have  property 
or  not,  are  called  upon  to  come  out  and  v/ork  not  lessi  than  three  nor  more  than  five 
days  in  each  year  upon  some  public  road  without  compensation,  provided  that  any 
person  who  desires  to  do  so  may  provide  a  sufiicient  substitute.  All  who  desire  to  work 
without  furnishing  the  substitute  may  do  so,  and  if  they  do  not  furnish  the  substitute 
they  are  required  to  work.  Then,  in  addition  to  that,  as  I  have  stated,  we  propose  to 
levy  a  tax  of  twenty-five  cents  on  a  hundred  dollars  of  valuation  for  that  purpose.  I 
hope  it  will  be  the  pleasure  of  the  Convention  to  adopt  the  amendment. 

Mr.  Keezell:  Mr.  President,  I  hope  the  Convention  will  not  engraft  in  the  Consti- 
tution the  provisions  embraced  in  the  amendment  of  the  gentleman  from  Scott. 

I  do  not  think  the  Cpnvention  ought  to  undertake  to  limit  the  amount  of  money 
that  may  be  assessed  in  the  county  on  real  and  personal  property  for  road  purposes, 
and  I  do  not  think  we  ought  to  undertake  tO'  leave  a  discretion  with  the  board  of  super- 
visors as  to  compulsory  labor  on  the  public  roads.  I  am  opposed  to  this  proposition 
for  several  reasons. 

In  the  first  place,  I  am  opposed  to  the  whole  theory  of  compulsory  road  service, 
because  I  believe  it  is  inefficient  and  does  not  amount  toi  anything,  and  that  under  it 
we  do  not  get  good  roads.  In  the  second  place,  I  am  opposed  to  it  as  a  matter  of 
principle.  I  do-  not  believe  we  ought  to  undertake  to  put  upon  certain  classes  of  our 
citizens  a  burden  equal  to  this  service  of  from  three  to"  five  days  in  a  year  upon  the 
public  roads.    I  believe  it  would  be  inequitable  and  unjust. 

In  the  next  place,  I  am  opposed  to  it  because  I  do  not  desire  to  see  this  question 
made  the  football  of  politics  and  brought  up  every  time  we  go  to  elect  a  board  of  super- 
visors in  the  county,  and  probably  defeat  for  membership  upon  the  board  of  supervisors 
men  who  are  most  valuable,  because  of  the  fear  that  they,  by  some  means  or  other, 
may  be  induced  to  undertake  to  put  this  system  into  operation.  I  hope  it  will  be  the 
pleasure  of  the  Convention  to  vote  down  the  proposition  of  the  gentleman  from  Scott. 

In  my  county  we  got  rid  of  compulsory  road  service  quite  a  number  of  years  before 
the  decision  of  the  Supreme  Court  made  it  unconstitutional.  We  have  found  that  our 
roads  are  much  improved  and  that  we  pay  very  little  more  road  tax  now  than  we  did 
then,  and  yet  we  have  a  system  of  roads  so  much  better  now  than  we  had  under  the 
old  compulsory  system  of  service  that  there  is  no  comparsion  at  all  to  be  made.  It 
is  a  practical  demonstration  of  the  fact  that  the  service  which  we  were  forcing  out  of 
people  involuntarily  and  against  their  will  amounted  to  nothing,  so  far  as  the  better- 
ment of  the  roads  was  concerned.  I  do  not  desire  to  have  this  matter  brought  up  and 
made  a  bone  of  contention  every  time  there  is  an  election  of  a  board  of  supervisors, 
creating  a  system  of  unrest  among  a  certain  class  of  our  people. 

Mr.  Turnbull:    I  desire  to  offer  an  amendment  to  the  amendment. 

Strike  ^'it  of  the  amendment  all  after  the  word  "compensation,"  and  insert  "under 
such  regulations  as  may  be  provided  by  law." 

The  amendment  will  then  read  as  follows: 

May,  in  their  discretion,  require  all  able-bodied  male  persons  between  the  ages  of  16" 
and  50  years  to  work  on  some  public  road  in  the  vicinity  where  such  persons  reside,  not 
less  than  three  nor  more  than  five  days  in  the  year,  without  compensation,  under  such 
regulations  as  may  be  provided  by  law. 

Mr.  Turnbull:  That  amendment  simply  provides  for  the  proposition  of  the  gentle- 
man from  Scott  (Mr.  Richm.ond),  except  that  it  strikes  out  of  the  section  everything 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1789 


m  reference  to  the  amount  of  taxes  that  may  be  levied,  and  puts  the  question  directly 
as  to  Ts-hether  people  shall  be  compelled  to  work  on  the  roads. 

Mr.  Richmond:    If  that  is  the  effect  of  the  amendment,  I  accept  it. 

The  Presiding  Officer:  The  question  is  on  agreeing  to  the  amendment  of  the  gen- 
tleman from  Scott  as  amended  by  the  gentleman  from  Brunswich. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  14;  noes,  55. 

The  amendment  was  rejected. 

Mr.  O'Flaherty:  I  move  to  insert  the  words  in  brackets,  beginning  in  lii.e  5  and 
ending  in  line  7. 

The  effect  of  the  amendment  will  be  to  make  justices  of  the  peace,  constables  and 
overseers  of  the  poor  constitutional  officers,  as  they  are  now  under  the  present  Consti- 
tution, and  will  be  in  accordance  witii  the  report  of  the  Committee  on  the  Organization 
of  Counties. 

I  take  it,  Mr.  President,  that  if  this  report  is  adopted,  with  this  amendment,  the 
committee  on  Final  Revision  and  Adjustment  will  correct  it.  I  hope,  if  we  have  made 
a  mistake  in  this  matter  that  we  vrill  correct  it  now  while  we  have  the  opportunity, 
for  if  we  do  not  we  will  never  have  the  opportunity. 

I  do  not  want  to  lecture  this  Convention.  I  do  not  want  to  advise  any  member 
how  to  vote;  but  I  do  think  that  we  ought  to  permit  the  people  to  have  these  officers. 
The  answer  of  the  gentleman  is  that  they  can  have  them  through  the  Legislature;  but 
when  we  strike  this  provision  from  the  Constitution  we  say,  indirectly,  that  we  do  not 
believe  these  officers  are  an  absolute  necessity.  I,  for  myself,  believe  that  justices  of 
the  peace  ought  to  be  a  part  of  the  coimty  government,  and  I  believe  that  they  ought 
to  be  elected  by  the  people.  I  am  sorry  1  was  not  present  a  day  or  two  ago  when  this 
question  came  up  and  the  Convention  reversed  the  action  of  the  Committee  of  the 
AMiole,  whereby  it  was  left  to  the  Legislature  to  say  whether  they  should  be,  elected 
or  appointed.  I  want  to  put  myself  on  record,  and  to  put  myself  straight  with  the 
people  of  Virginia,  by  saying  that  I  am  in  favoi;^of  the  election  of  justices  of  the  peace 
by  the  people.  In  all  the  history  of  government  there  is  no  older  officer  known,  and 
there  is  none  that  comes  nearer  to  the  people.  I  venture  the  assertion  that  the  two 
classes  of  officers  who  most  closely  effect  the  people  of  Virginia  are  the  boards  of 
supervisors  and  jutices  of  the  peace.  A  great  many  people  in  the  State  of  Virginia  do 
not  care  who  is  Governor  of  the  State;  they  do  not  even  care  who  is  sent  to  the  Co  - 
stitutional  Convention,  they  do  not  care  who  occupies  any  position,  so  long  as  3'ou  will 
leave  them  their  own  local  self  government  and  give  to  them  their  boards  of  super- 
visors and  justices  of  the  peace. 

I  apprehend  that  nothing  I  can  say  will  change  one  vote,  and,  therefore,  in  order 
to  avoid  the  unnecessary  consumption  of  time,  and  out  of  respect  to  the  opinions  of 
the  gentlemen  who  may  differ  from  me,  I  shall  not  discuss  this  subject  further. 

I  want,  however,  to  call  your  attention  to  the  fact  that  you  are  out-Heroding  Herod. 
You  condemn  the  L'nderwood  Constitution  and  yet  you  are  going  further  than  the 
Underwood  Constitution  went.  In  my  opinion,  you  are  striking  out  of  the  Underwood 
Constitution  one  of  the  few  good  features  in  it.  I  will  not  say  that  this  may  effect  the 
question  of  the  adoption  of  this  Constitution,  nor  will  I  say  or  threaten  that  I  will  use 
what  little  influence  I  may  have  against  its  adoption,  because  if  it  comes  anywhere 
near  what  I  want  I  am  going  to  do  all  I  can  to  see  that  it  is  adopted,  if  sent  back  to 
the  people.  But  I  warn  you,  that  if  you  strike  these  provisions  out  and  submit  the  Con- 
stitution to  the  people,  you  will  lose  thousands  and  tens  of  thousands  of  votes.  Evidently 
the  gentlemen  of  this  Convention  do  not  intend  to  submit  it  to  the  people.  It  looks  as 
if  the  die  were  cast,  and  the  people  of  Virginia  would  have  to  look  to  some  other  source 
than  to  this  Convention  for  a  Constitution  which  will  permit  them  to  govern  them- 
selves. I  love  the  members  of  the  Convention,  individually  and  collectively,  and  I  do 
not  want  to  see  them  make  a  mistake.  I  do  hope  it  will  be  the  good  judgment  of  the 
Convention  that  these  words  should  be  reinstated  and  to  let  the  people  know  that,  come 
what  may.  they  will  have  justices  of  the  peace,  overseers  of  the  poor  and  constables 


1790  DEBATES  OF  THE  COisTSTITLTTIOXAL  CONVEXTIOX  OF  VIRGINIA. 

whom  they,  themselves,  shall  elect.  I  hope  you  will  vote  to  insert  the  words  the  com- 
mittee reported  to  the  Committee  of  the  Whole,  which  words  are  in  the  Constitution  as 
we  now  have  it. 

The  amendment  was  rejected — ayes,  28;  noes,  38. 

Section  2  of  the  report  was  adopted. 

Sections  4,  5  and  6  were  then  read  and  adopted. 

Mr.  Barnes:  The  Committee  of  tne  Whole  propose  the  following  independent  sec- 
tion: 

The  General  Assembly  shall  provide  by  law  for  the  examination  of  the  books, 
accounts  and  settlements  of  city  and  county  officers  who  are  charged  with  the  collection 
and  disbursement  of  public  funds. 

I  move  the  adoption  of  this  section  as  proposed  by  the  Committee  of  the  Whole. 

The  independent  section,  proposed  by  the  Committee  of  the  Whole,  was  adopted. 

Mr.  Barnes:  I  move  that  the  report  as  a  whole  be  adopted  and  referred  to  the 
Committee  on  Final  Revision  and  Adjustment. 

The  Presiding  Officer:  The  gentleman  from  Nansemond,  chairman  of  the  Com- 
mittee on  Organization  and  Government  of  Counties  (Mr.  Barnes),  moves  that  the 
report  of  the  committee  as  a  whole  be  adopted  and  referred  to  the  Committee  on 
Pinal  Revision  and  Adjustment. 

The  motion  was  agreed  to.  (Applause). 

On  motion  of  Mr.  Turnbull  the  Convention  adjourned  until  Monday,  January  13, 
1902,  at  12  M.  . 


MONDAY,  January  13,  1902. 

The  Convention  met  at  12  o,clock  M. 

Prayer  by  Rev.  R.  P.  Kerr,  D.  D.,  of  Richmond. 

On  motion  of  Mr.  Ayers  the  Convention  resolved  itself  into  Committee  of  the  Whole 
for  the  further  consideration  of  the  report  of  the  Committee  on  Public  Institutions  and 
Prisons,  Mr.  Barbour  in  the  chair. 

Mr.  Ayers:  Mr.  Chairman,  I  will  state  for  the  information  of  the  Committee  of  the 
Whole  that  the  report  Vv'as  practically  concluded  when  it  was  last  considered  by  the 
committee,  but  that  at  the  instance  of  the  committee  the  report  was  recommitted  to 
the  Committee  on  Public  Institutions  and  Prisons,  and  they  have  now  reported  a  substi- 
tute, which  has  been  printed,  together  with  the  report  as  it  stood  in  Committee  of  the 
Whole  when  the  subject  was  last  under  consideration;  so  that  members  have  upon 
their  tables  this  morning  both  the  original  report  of  the  committee,  as  it  stood  when  it 
was  last  considered,  and  the  substitute  which  is  proposed  by  the  Committee  on  Public 
Institutions  and  Prisons. 

To  facilitate  the  further  consideration  of  the  matter  I  desire  to  say  that  the 
changes  made  in  the  report  as  it  was  amended  by  the  Committee  of  the  Whole  are  the 
following:  In  Section  5  there  is  added,  in  line  8,  the  words  "for  a  term  of  four  years," 
in  order  to  make  the  term  of  the  resident  officers  of  the  institutions  conform  to  the 
term  of  the  office  of  the  superintendent  of  State  hospitals,  as  the  report  was  amended 
in  Committee  of  the  ^Vliole.  Otherwise  they  would  hold  office  for  an  indefinite  term, 
and  the  superintendent  for  a  term  of  only  four  years.  Therefore  the  committee 
thought  it  proper  to  provide  that  the  resident  officer  as  well  as  the  superintendent 
should  be  appointed  for  a  term  of  four  years. 

It  will  be  found,  by  reference  to  the  original  report,  that  Section  3,  as  amended, 
in  accordance  with  an  amendment  offered  by  the  gentleman  from  Westmoreland,  pro- 
vides as  follows: 


DEBATES  OF  TEIE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA.  IT 91 


Sec.  3.  The  General  Assembly  shall  appropriate  at  its  first  session  after  this  Con- 
stitution shall  be  adopted,  such  sums  of  money  as  may  be  necessary  to  provide  and  main- 
tain buildings  with  a  sufficient  number  of  cells  and  sufficient  air  space  as  may  be  necessary 
for  the  proper  care  and  safe  keeping  of  the  convicts  incarcerated  therein. 

This  section  was  inserted  in  the  original  report  in  lieu  of  Section  3  and  4,  which 
provided  for  the  application  of  certain  sums  for  building  purposes,  and  were  a  mandate 
upon  the  General  Assembly.  The  Committee  on  Public  Institutions  and  Prisons,  after 
fully  considering  this  section,  determined  it  was  best  to  strike  it  out  entirely  and  it 
is  not  included  in  their  substitute,  it  being  their  opinion  that  the  aniotmt  necessary  is 
a  matter  to  be  determined  by  the  General  Assembly,  and  that  this  provision  has  no 
place,  in  the  pennanent  form  of  government  or  in  the  organic  law.  Therefore,  in  the 
substitute  they  do  not  include  Section  3. 

The  only  other  amendment  proposed  by  the  substitute,  I  am  glad  to  say  for  the 
information  of  the  gentleman  from  Roanoke  (Mr.  Robertson),  strikes  out  the  State 
board  of  charities,  the  committee  being  of  the  opinion  that  in  all  probability,  as 
amended,  that  had  best  go  out. 

As  finally  revised  by  the  Committee  on  Public  Institutions  and  Prisons  the  report 
contains  only  six  sections,  which  refer  exclusively  to  the  organization  and  government 
of  the  penitentiary,  branch  prisons  and  prison  farms,  and  of  the  State  hospitals  for  the 
insane,  and  with  the  change  of  the  insertion  -for  a  term  of  four  years,"  in  Section  5, 
and  the  striking  out  of  Section  3,  is  indentical  Avith  the  report  as  approved  by  the  Com- 
mittee of  the  AMiole  some  time  since. 

Sections  1,  2,  3,  4.  5  and  6  were  read  and  adopted  without  amendment,  after  which 
the  Committee  rose  and  the  President  resumed  the  chair. 

On  motion  of  Mr.  Mcllwaine  the  Convention  proceeded  to  the  consideration  of  the 
report  of  the  Committee  on  Education. 

Section  1  was  read  and  adopted. 

Mr.  Eggleston:  Mr.  President,!  wish  to  offer  an  amendment  to  Section  2,  to  strike 
out  all  of  the  section  after  the  words  "four  years,"  in  line  5,  to  the  end  of  the  section, 
so  that  the  section  will  then  read: 

The  general  supervision  of  the  public  free  school  system  of  the  State  shall  be  vested 
in  a  State  Board  of  Education,  to  be  composed  of  the  Governor,  Attorney-General,  Super- 
intendent of  Public  Instruction,  and  three  experienced  educators,  to  be  elected  by  the 
Senate  of  Virginia  once  every  four  years. 

Now,  Mr.  Chairman,  if  it  is  a  matter  of  importance,  and  I  think  it  is,  that  this 
board  should  be  composed  of  experienced  educators,  I  see  no  reason  why  we  should 
be  limited  in  the  choice  of  those  men  to-  the  faculties  of  these  public  institutions.  In 
the  first  place,  when  you  do  that  you  have  the  assurance  that  you  get  no  man  who  is 
actually  engaged  in  the  public  free  school  work  of  the  State — the  common  schools;  you 
get  no  man  who  is  in  toticli  with  the  common  schools,  no  man  who  knows  anything  in 
the  world  about  the  practical  working  of  them. 

If,  as  I  have  said,  we  are  going  to  get  practical  edticators  to  compose  this  board, 
why  limit  ourselves  to  the  faculties  of  these  institutions?  One  of  them  is  the  School 
for  the  Deaf  and  Blind,  at  Staunton,  which  furnishes  no  teachers  to  the  ptiblic  school 
system  and  takes  no  pupils  from  the  public  schools.  We  want  the  best  educators  in 
the  State.  If  it  should  happen  that  the  best  educators  are  employed  in  these  institu- 
tions, we  want  to  get  those  men;  but  if  it  happens  that  the  best  educators  are  not  em- 
ployed in  these  institutions,  there  is  no  reason  on  top  of  this  earth  why  we  should  be 
confined  in  our  selection  to  the  faculties  of  these  six  colleges. 

More  than  that,  Mr.  Chairman,  it  seems  to  be  the  idea  to  take  the  public  school 
system  out  of  politics.  I  assert  that,  in  composing  this  board  as  you  do,  you  not  only 
keep  the  public  school  system  in  politics,  but  you  inject  these  colleges  along  with 
them.  You  allow  these  public  institutions  to  put  an  active,  able,  political  agent  in  every 
county  of  the  State.    You  may  say  no  harm  will  come  of  that.    I  reply  that  it  will  give 


1792 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


these  institutions  a  tremendous  lever  in  opening  the  treasury  of  the  State;  that  if  you 
give  them  118  or  100  political  agents,  located  one  in  every  county  in  the  State,  you 
give  them  virtually  the  control  of  your  public  treasury.  You  may  say  that  that  cannot 
happen.  Then,  gentlemen  of  the  Convention,  I  want  to  Know  why  it  is,  when  a  move- 
ment was  made  to  exclude  certain  of  these  public  institutions  from  this  list,  we  saw 
the  heads  of  those  institutions,  and  members  of  their  faculties,  around  here  log-rolling 
and  lobbying  to  see  that  their  particular  institutions  were  put  into  this  list  and  allo^ved 
representation  on  this  board. 

What  do  they  want  with  that  representation?  They  want  it  because  they  want  the 
power  it  gives  them,  and  I  say  it  should  not  be  done.  If  you  want  a  board  familiar 
with  the  public  free  school  system,  then  you  ought  to  have  a  board,  some  members  of 
which,  certainly,  are  in  touch  with  the  public  free  school  system  of  the  State.  No  one 
can  give  us  a  good  reason  why  we  should  not  have  on  that  board  the  principal  of  one 
of  our  city  high  schools.    They  know  the  needs  of  that  branch  of  the  school  system. 

Mr.  Watson:  Has  not  the  gentleman  discovered,  by  reading  a  little  further  down 
in  the  same  article,  that  provision  is  made  for  two  public  school  officials? 

Mr.  Eggleston:  Yes,  sir;  you  put  them  in  there,  and  they  have  no  power  after 
they  are  put  in. 

Mr.  Watson:  I  desire  to  suggest  to  the  gentleman  that  the  power  of  the  State 
Board  of  Education  consists,  first,  in  making  regulations  for  the  government  of  the 
public  schools,  and  second,  in  the  selection  of  text  books;  two  important  functions,  in 
my  judgment,  and  the  only  power  denied  them  is  that  they  shall  not  participate  in  the 
selection  of  the  school  superintendents. 

Mr.  Eggleston:  Yes,  sir.  Now,  Mr.  Chairman,  the  most  important  province  of  this 
board  is  the  selection  of  the  school  superintendents.  I  do  not  say  that  a  county  school 
superintendent  should  be  permitted  to  select  himself,  but,  if  you  have  a  professional 
educator,  who  is  directly  connected  with  your  common  school  in  the  country,  why  say 
that  he  shall  not  have  a  position  on  this,  board?  You  do  say  it,  and  you  have  confined 
the  selection  to  the  faculties  of  these  institutions,  none  of  whom  have  any  connection 
whatever  with  the  public  free  school  system,  and  you  must  select  three  out  of  the  six 
that  they  nominate.  You  are  tied  down  to  those  six,  and  after  you  have  elected  them 
for  four  years  all  you  can  do  in  the  next  four  years  is  to  get  the  other  three.  Whether 
those  men  make  a  Siuccess  or  a  failure  of  the  public  institutions  you  are  obliged  to  take 
them;  and  we  have  known  the  time  when  they  have  made  absolute  failures  of  them. 

Mr.  Watson:  Would  you  not  consider  the  Parmville  Female  Normal  school  a 
public  institution  connected  with  the  public  free  school  system  of  the  State? 

Mr.  Eggleston:    No,  sir. 

Mr.  Watson:  And  would  you  not  consider  William  and  Mary  College  an  institu- 
tion connected  with  the  public  free  school  system  of  the  State? 

Mr.  Eggleston:  No,  sir,  W|llliam  and  Mary  College  is  not  even  a  State  institu- 
tion. 

Mr.  Watson:  I  desire  to  ask  one  other  question,  and  I  will  not  interrupt  the  gen- 
tleman again.  If  the  amendment  that  he  offers  is  adopted,  what  guarantee  has  he  that 
the  Senate  of  Virginia  will  ever  elect  a  public  free  school  man? 

Mr.  Eggleston:  I  certainly  am  not  willing  to  say  to  them  that  they  shall  not  elect 
one.  That  is  what  the  report  of  the  committee  does.  I  do  not  claim  that  they  will  not 
elect  one,  but  I  do  not  intend  to  say,  with  my  vote,  that  they  shall  not  do  it.  It  is  left 
to  the  Senate  to  make  the  selection  from  this  list.  Why  not  leave  it  to  the  Senate  to 
make  a  selection  from  a  list  anywhere  in  the  State,  and  not  tie  them  down  so  that  they 
will  have  to  have  failures,  if  failures  there  be?  These  institutions  may  be  all  properly 
conducted  now,  but  we  have  no  guarantee  that  in  five  years  or  ten  years  they  will  be 
properly  conducted.  It  has  not  been  ten  years  since  some  of  them  have  been  failures, 
and  have  had  to  be  reorganized. 

Mr-  Hancock:    Would  the  gentleman  object  to  changing  his  amendment  so  as  to 


DEBATES  OF  THE  COXSTITrTIO^TAL  COXTEXTIOX  OF  VIEGIXIA.  1793 

say  "two  educators,"  instead  of  ••three, so  that  a  majority  of  the  board  shall  consist 
of  men  elected  by  the  people?    You  hare  six  under  your  amendment. 

Mr.  Eggleston:  Mr.  President,  if  I  had  my  choice  abotit  it  I  would  have  a  board 
composed  of  the  superintendent  of  ptiblic  instruction  and  four  educators.  I  am  as 
anxious  as  other  members  of  the  Convention,  and  perhaps  more  so,  to  get  the  public 
free  school  system  out  of  politics,  so  that  these  appointments  cannot  be  used  for  political 
purposes.  I  would  prefer  a  board  composed  of  the  superintendent  of  public  instruction 
and  four  educators.  They  may  be  selected  as  you  please,  either  by  the  Senate  or  by 
the  appointment  of  the  Governor,  with  the  confirmation  of  the  Senate;  but  I  do  not 
want  to  confine  the  election  to  these  six  institutions,  because  I  do  not  think  they 
embody  all  the  wisdom  and  all  the  zeal  in  behalf  of  education  which  can  be  found  in 
the  State.  I  do  not  want  to  put  a  political  agent  for  these  institutions  in  every  county 
in  the  State,  because  I  believe  when  I  do  that  I  give  them  the  absolute  command  of  the 
public  treasury. 

Mr.  Brown:  Mr.  President  and  gentlemen  of  the  Convention,  personally  I  felt  that 
it  was  an  inopportune  time  to  take  up  this  report  this  morning,  as  many  members  of 
the  Convention  are  absent,  and  had  no  idea  it  would  be  taken  up  for  final  consideration 
at  this  time.  I  do  hope,  however,  the  Convention  will  not,  by  amendment,  reopen  this 
particular  question  which  was,  of  all  others  in  the  report,  discussed  most  exhaus- 
tively and  was  most  hard  to  decide  finally  in  Committee  of  the  ^^Tiole.  It  seems  to 
me  that  the  conclusion  reached  by  the  Committee  of  the  ^\Tiole  is  an  eminently  fair  and 
just  one.  It  provides  that  the  board  of  visitors  of  each  of  the  State  instittttions  shall 
nominate  to  the  Senate  of  Virginia  a  representative  from  that  institution  either  the 
head  of  the  institution  or  a  member  of  its  faculty. 

The  idea  of  the  Committee  on  Education  in  originally  providing  that  the  board 
should  consist  of  the  head  of  each  of  these  several  institutions  was  that  the  control  of 
the  board  of  education  should  rest  in  the  hands  of  men  whose  work  was  entirely  along 
educational  lines,  and  to  avoid,  if  possible,  any  danger  of  bringing  the  educational 
system  of  the  State  into  politics.  Recognizing  that  that  was  rather  an  inflexible  board, 
and  hoping  to  meet  the  objection  of  gentlemen  who  raised  the  question  that  it  was  an 
Inflexible  board,  the  committee  asked  that  that  subject  be  recommitted  to  them  for 
reconsideration.  It  was  recommitted  to  them  for  further  consideration,  and  after  very 
careful  examination  the  committee  unanimously  agreed  upon  this  substitute.  Thei 
matter  was  brought  into  Committee  of  the  WTiole.  and  was  again  very  carefully  con- 
sidered. I  hope  it  will  be  the  act  of  the  Convention  to  endorse  the  section  as  it  now 
stands,  without  further  amendment. 

Mr.  Dunaway:  Mr.  President.  I  shall  give  my  vote  in  favor  of  the  amendment 
submitted  by  the  gentleman  from  Charlotte  for  the  reasons  that  have  been  stated  by 
him,  and  for  the  additional  reason  that  the  machinery  of  the  board,  if  I  may  so  term  it, 
is  very  complicated  as  it  is  now  constituted.  The  people  have  elected  three  general 
officers  of  the  State,  and  they  are  put  upon  the  board,  as  they  have  been  heretofore. 
Then  here  are  six  institutions,  each  one  having  its  board  of  visitors  or  directors.  Each 
one  of  these  boards  of  visitors  or  directors  mtist  select  one  member  from  the  official 
corps  or  faculty  of  its  own  institution.  There  will  be  elections  by  six  boards  of  visitors. 
It  will  be  a  difficult  task  that  these  boards  of  visitors  will  have  to  perform,  and  a  very 
delicate  task.  V^Tien  they  hold  their  meeting,  they  will  look  upon  all  the  members 
of  the  faculty,  and  they  must  perform  the  disagreeable,  unpleasant  duty  of  making  a 
discrimination,  of  showing  partiality  among  the  members  of  the  faculty,  and  picking 
out  one  of  them  who  shall  be  called  an  eligible.  Then,  when  these  six  have  been 
elected  by  so  many  boards  of  visitors,  the  General  Assembly  will  meet  and  the  Senate 
must  select  three  from  the  list  of  six  eligibles.  Each  one  of  the  schools  which  has  an 
eligible  before  the  Senate  of  Virginia  will  have  some  ambition  or  desire  that  its  own 
member  shall  be  chosen;  and  the  probability  is  that  you  will  have  six  lobbies  from 
these  six  institutions  before  the  Senate  of  Virginia,  each  one  endeavoring  to  have  the 
member  from  his  own  faculty  chosen  upon  the  board. 


1794  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

But  whether  that  be  so  or  not  there  will  be  the  unpleasant  and  difficult  task  be- 
fore the  Senate  of  Virginia  to  pick  out  three  of  these  men  out  of  the  six  that  will  have 
been  presented  to  it.  Nor  will  the  difficulty  stop  then.  After  the  election  by  the  people, 
the  elections  by  these  six  boards  of  visitors  and  the  election  by  the  Senate,  the  board 
thus  constituted  of  six  members  must  hold  an  additional  election.  It  must  go  among 
the  number  of  county  superintendents  and  city  superintendents  throughout  the  State 
and  pick  out  just  two  of  these.  There  is  a  discrimination  again  that  will  create  un- 
pleasant feeling  among  the  superintendents  who  are  left  out. 

For  these  reasons,  because  it  is  very  complicated  machinery  and  there  will  be 
so  many  elections  to  get  at  a  very  simple  matter,  the  proposition  of  the  Committee  of 
the  Whole  is  very  objectionable  to  my  mind,  and  I  do  believe  that  if  the  Senate  of  Vir- 
ginia is  to  choose  three  men  it  ought  to  be  left  free  to  choose  the  three  best  men  in 
the  State,  or,  if  you  put  it  two  or  four  men,  that  they  shall  look  out  over  the  whole 
Commonwealth  and  select  three  men  of  zeal,  men  acquainted  with  and  interested  in 
our  public  school  work,  men  of  administrative  ability;  and  you  may  not  find  men  with 
these  qualifications  upon  the  faculties  of  these  various  institutions.  The  Senate  might 
get  three  better  men  than  could  be  picked  out  of  the  six  presented  to  them  for  selec- 
tion. 

Mr.  Withers:  Mr.  President,  I  desire  to  offer  this  amendment,  which  I  presume 
will  have  precedence  over  the  motion  of  the  gentleman  from  Charlotte: 

Strike  out,  in  Section  2,  after  the  first  comma,  in  line  9,  all  the  words  beginning  with 
"school,"  down  to  and  including  the  parenthesis  in  line  11. 

Mr.  Withers:  The  effect  of  that  amendment,  Mr.  President,  is  to  strike  out  from 
the  list  of  eligibles  any  member  of  the  faculty  of  the  School  for  Deaf  and  Blind,  at 
Staunton,  and  of  William  and  Mary  College.  As  regards  the  school  for  the  Deaf  and 
Blind,  I  do  not  desire  to  put  that  school  upon  the  basis  of  a  hospital,  but  I  think  it 
has  no  connection  with  the  public  school  system  of  the  State.  As  to  William  and  Mary 
College,  that  is  a  private  institution;  and  putting  its  president  or  any  member  of  its 
faculty  upon  this  board  is,  in  my  opinion,  as  indefensible  as  putting  upon  it  any  mem- 
ber of  the  faculty  of  Richmond  College,  or  of  Hampden-Sidney,  or  of  Randolph-Macon. 
The  State  ought  not  to  enter  into  a  combination  with  private  institutions. 

Furthermore  than  that,  without  touching  upon  the  disagreeable  controversy  about 
which  so  much  has  appeared  in  the  newspapers,  and  about  which  I  have  not  read  one 
line  or  word,  if  the  Convention  does  put  a  representative  of  the  faculty  of  William 
and  Mary  College  on  its  board  it  will  put  itself  in  an  indefensible  position  by  reason, 
not  of  public  intelligence  possibly,  but  by  reason  of  public  prejudice  and  passion. 

Mr.  rarks:  Mr.  President,  I  desire  to  offer  tne  following  substitute  for  the  entire 
section,  but  I  suppose  under  parliamentary  law  the  proposed  amendment  will  first  be 
disposed  of.  I  ask,  however,  that  my  substitute  be  now  read,  so  that  the  Convention 
may  know  what  it  embraces. 

The  general  supervision  of  the  public  free  school  system  of  the  State  shall  be  vested 
in  a  State  Board  of  Education,  to  be  composed  of  the  Superintendent  of  Public  Instruction 
and  four  experienced  educators,  to  be  elected  by  the  General  Assembly  of  Virginia  once 
every  four  years,  the  four  members  thus  elected  to  receive  such  per  diem  and  mileage  as 
shall  be  fixed  by  the  General  Assembly. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the" 
gentleman  from  Danville  (Mr.  Withers)  to  the  amendment  offered  by  the  gentleman 
from  Charlotte  (Mr.  Eggleston).  The  gentleman  from  Danville  demands  the  ayes  and 
noes. 

The  vote  will  be  fallen  on  the  first  branch  of  the  amendment  referring  to  the  School 
for  the  Deaf  and  Blind. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — 
ayes,  37;  noes,  32. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIRGIXIA.  1T95 
The  first  branch  of  Mr.  Withers'  amendment  was  agreed  to. 

The  President:  The  question  recurs  on  the  second  branch  of  the  amendment, 
proposing  to  strike  out  William  and  Mary  College. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
28;  noes,  41. 

The  second  branch  of  Mr.  Withers"  amendment  was  rejected. 

The  President:  The  Convention  is  now  proceeding  to  perfect  the  original  section, 
and  after  being  perfected  it  will  come  in  competition  with  the  substitute  of  the  gentle- 
man from  Page. 

Mr.  Meredith:  :\Ir.  President,  T  simply  desire  to  call  the  attention  of  the  Con- 
vention to  what  is  really  the  sum  and  stibstance  of  both  the  propositions,  that  either 
are  or  will  be  before  the  Convention,  in  regard  to  the  change  of  this  report.  Both  of 
them  desire  three  or  two  experienced  educators.  They  start  out  with  that  proposi- 
tion. Then  they  propose  to  have  them  elected  by  the  Senate  from  anywhere  in  the 
State.  On  the  other  hand,  the  committee  report  suggests  who  are  experienced  educa- 
tors. You  have  a  guarantee  of  what  everybody  desires.  Gentlemen  want  to  put  in 
there  three  or  two  experienced  educators,  and  leave  out  any  suggestion  as  to  where 
they  shall  come  from.  The  committee  suggests  that  these  experienced  educators  shall 
,  come  from  the  colleges.  Has  any  man  a  doubt  that  is  a  guarantee  that  there  will 
be  three  experienced  educators  elected  according  to  the  wish  of  everybody? 

Aside  from  the  committee  report,  nobody  submits  a  proposition  by  which  we  will 
get  any  gtiarantee  that  there  will  be  three  experienced  educators.  When  you  tise  the 
expression  "three  experienced  educators, and  leave  it  to  the  Senate  or  the  General 
Assembly  to  establish  who  they  shall  be  and  how  much  experience  they  shall  have, 
the  door  is  wide  open  to  everybody.  So  you  propose  to  announce  a  principle  and  not 
take  advantage  of  an  opportunity  to  have  that  principle  carried  into  effect.  You  pro- 
pose to  announce  that  you  want  three  experienced  educators,  and  at  the  same  time 
you  lea-^'e  it  to  the  General  assembly  as  to  who  they  may  select  and  how  much 
experience  they  may  have.  I  respectfully  submit  yoti  are  undertaking  to  destroy  the 
very  guarantee  you  have,  that  your  desires,  as  well  as  those  of  the  Committee  on 
Education,  will  be  carried  out. 

I  wish  to  call  your  attention  to  one  other  thing.  "When  you  leave  open  this  door 
for  three  experienced  educators  you  are  going  to  have  what  the  gentleman  from  Dan- 
ville (Mr.  Withers)  said  ought  not  to  exist — a  connection  of  the  public  schools  with  the 
private  colleges  of  the  State.  They  are  coming  in  and  making  a  contest  for  this  posi- 
tion, just  as  much  as  the  State  institutions  are,  and  you  will  have  the  liveliest  lobbying 
you  have  ever  had  for  positions  on  this  board  from  private  institutions.  There  is  not 
one  of  us  who  doubts,  and  it  is  a  matter  of  fact,  that  these  private  colleges  would 
like  to  have  the  position,  and  they  will  come  in  and  make  just  as  earnest  a  contest  for 
it  as  the  State  institutions  will  make. 

Mr.  O'Flaherty:  Do  you  not  think  it  would  be  better  for  the  Legislature  to  have 
the  privilege  of  electing  from  all  the  people,  and  from  all  the  educators  of  the  State, 
than  to  confine  them  to  a  few? 

Mr.  Meredith:  If  I  did  I  would  not  have  risen.  I  am  contending  that  they  ought 
not  to  do  that,  because  I  believe  it  is  going  to  result  in  the  election  of  people  who  are 
not  experienced. 

How  are  you  going  to  get  the  thing  you  desire?  I  submit  the  report  of  the  com- 
mittee gives  you  an  opportunity  to  get  vrhat  you  desire:  and  if  you  undertake  to  open 
the  door  you  will  leave  it  to  the  Legislature  to  pass  upon  what  experience  is  sufficient. 
You  Imow  from  practical  experience  that  that  is  not  a  guarantee.  You  know  the 
danger  of  allowing  a  contest  of  that  kind  before  the  General  Assembly. 

In  addition  to  that,  you  will  have  all  these  private  colleges  making  a  contest  for 
the  position;  and  yet  you  want  to  have  the  State  institutions  connected  with  the  public 
school  system.  It  has  been  said  there  is  a  good  deal  of  feeling  between  the  colleges 
of  higher  education  and  the  public  schools.    Here  is  an  opportunity  for  you  to  make 


1796 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


a  link  between  the  public  school  system  of  the  State  and  the  colleges  of  higher  educa- 
tion; and  if  the  men  whom  you  know  are  experienced  educators,  the  very  men  ycu  say 
you  want,  do  their  duty  properly,  instead  of  there  being  a  feeling  of  hostility  between 
the  colleges  of  higher  education  and  the  public  school  system,  there  will  be  a  feeling 
of  gratitude  for  giving  them  a  system  of  education  that  has  not  existed  in  the  Statei 
before. 

It  has  been  said  that  these  men  are  inexperienced  in  matters  of  public  education. 
You  talk  as  ii  they  are  going  to  be  teachers  themselves.  You  know  they  are  not  going 
to  assume  that  position.  What  are  the  duties  they  are  expected  to  perform?  Simply 
that  they  will  meet  and  elect  such  superintendent  as  they  think  fit,  without  any  special 
desire  to  benefit  anybody;  mey  will  determine  upon  the  proper  clasis  of  books,  without 
any  special  partiality  for  any  particular  books;  and  they  will  map  out  a  system  of 
management  for  the  school  as  is  proper.  Then,  after  that,  the  whole  public  school 
system  is  left  to  the  public  school  teachers. 

Therefore,  this  idea  that  you  have  advanced  here — that  there  is  no  experience  as 
to  the  public  schools  in  these  men  who  teach  in  the  higher  colleges — is  true;  but  it  is 
not  an  argument  to  be  used,  because  there  is  no  necessity  of  any  connection  of  that 
kind  between  them.  It  is  not  necessary  that  they  should  have  had  experience  of  that 
kind.  The  grea't  question  is  the  selection  of  good  superintendents,  free  of  all  political 
entanglement,  the  people  who  will  be  the  best  teachers  for  the  children  in  the  public 
schools. 

I  respectfully  submit  to  you  that  by  adopting  the  committee's  report  you  have  a 
sufficient  elasticity  or  selection,  because  you  have  five  colleges  from  which  to  select 
three  men.  The  nominees,  or  eligibles,  as  you  call  them,  are  to  be  suggested  by  the 
facnltiesi  of  the  different  colleges,  and  undoubtedly  the  faculties  will  put  forth  their 
best  men,  because  they  will  take  a  pride  in  it;  and  the  Legislature  has  the  right,  when 
the  matter  comes  before  them,  to  select  three  out  of  the  five.  The  board  will  thus  be 
constituted  of  the  Governor,  tne  Attorney  General,  three  experienced  educators  from 
the  higher  colleges  of  the  State,  and,  in  addition  to  that,  two  men,  one  of  whom  shall 
be  a  city  supermtendent  and  one  a  county  superintendent. 

I  desire  to  urge  again  that  you  have  a  system  by  which  you  can  get  a  guarantee 
that  every  man  on  that  board,  unless,  it  be  the  Governor  and  the  Attorney-General, 
shall  be  an  experienced  educator.  You  are  offered  here  a  system  that  connects  you 
with  the  public  schools  by  these  twO'  superintendents;  that  connects  you  with  the 
people  by  the  Attorney-General  and  the  Governor,  and  that  connects  you  with  the  col- 
leges of  higher  education  by  these  eligibles  being  selected  from  them.  I  respectfully 
submit  you  have  a  chance  to  get  a  board  of  education  that  presents  the  finest  principle 
that  has  been  presented  in  the  State  since  the  adoption  of  the  public  school  system. 

Mr.  Walker:  Mr.  President,  it  seems  to  me  there  is  great  force  in  the  objections 
which  are  suggested  by  the  gentleman  from  Lancaster  (Mr.  Dunaway).  Certainly 
I  have  not  heard  any  satisfactory  answer  to  those  objections.  They  had  occurred  to 
me,  and  I  was  on  the  point  of  saying  something  of  the  sort  when  the  gentleman  from 
Lancaster  arose.  I  rise  now  for  the  purpose  of  again  calling  attention  to  those  objec- 
tions and  emphasizing  them,  if  I  can. 

According  to  the  provisions  of  this  report  the  board  of  Visitors  of  each  of  the  insti- 
tutions named  in  the  report  is  limited  in  its  choice  of  a  candidate  for  a  position  on  the 
list  of  eligibles  to  the  faculty  of  its  own  institution.  The  result  of  that  may  possibly 
be,  I  do  not  say  that  it  will  be,  but  it  may  possibly  be — to  produce  a  rivalry  for  this 
place  among  the  members  of  the  faculty  of  the  institution.  It  may  be  it  will  have  the 
effect  of  throwing  an  apple  of  discord  into  the  faculty  of  each  of  these  institutions. 
That  may,  or  may  not,  be  so.  However,  one  thing  at  least  is,  certain,  that  when  from 
the  six  institutions,  or  the  five  institutions  named  in  the  report,  as  the  matter  stands 
now,  a  list  of  six  names  or  five  names  is  presented  to  the  Senate,  the  members  of  the 
Senate  will  have  to  make  a  choice  between  those  institutions.  It  will  have  to  turn 
down  three  of  the  applicants  and  elect  three  of  the  others.    It  seems  to  me  in  that 


DEBATES  OE  THE  COXSTITETIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


179T 


case  it  will  almost  inevitably  produce  a  rivalry  among  those  institutions  before  the 
senate,  and  that  in  all  probability  the  members  of  the  boards  of  trustees,  if  not  the 
members  of  the  faculties  themselves,  viTl  be  oefore  that  body  advocating  the  selection 
of  the  man  from  their  own  faculty.  It  would  thus  produce  the  very  undesirable  result 
of  bringing-  the  institutions  into  rivalry  for  those  positions  before  the  Senate. 

The  gentleman  from  Prince  William  (Mr.  Thornton)  suggested — and  it  is  the  only 
suggestion  I  have  heard  in  reference  to  the  objections  made  by  the  gentleman  from 
Lancaster — that  the  boards  of  visitors  of  those  institutions  might  agree  among  them- 
selves which  three  of  the  six  applicants  should  be  specially  pressed  for  the  positions. 
If  that  is  so,  and  the  boards  of  visitors  should  have  the  ability  to  settle  the  matter  by 
their  agreement,  then  there  would  be  no  necessity  for  confirmation  by  the  Senate, 
because  that  power  would  be  taken  from  them.  I  cannot  think  that  would  likely  be  the 
result  produced.  As  long  as  the  matter  stands  in  that  shape,  and  as  long  as  those 
objections  exist,  as  they  seem  to  me  to  be  objections,  I  shall  vote  against  the  provisions 
of  the  report  and  in  support  of  the  amendment  of  the  gentleman  from  Charlotte. 

Mr.  Keezell:  If  yoti  strike  out  one  of  these  institutions,  leaving  only  five  names 
to  be  presented,  would  it  not  always  be  possible  for  the  friends  of  three  of  the  institu- 
lions  to  combine  and  absolutely  dictate  in  the  Senate  the  election  of  the  man  whose 
name  they  should  see. fit  to  present? 

Mr.  Walker:  That  would  seem  to  be  the  case,  and  that  presents  another  serious 
objection. 

Mr.  Keezell :  It  seems  to  me  if  we  are  going  to  adopt  this  amendment  v\-e  ought 
to  make  the  number  two. 

The  President:  The  question  recurs  on  agreeing  to  the  amendment  offered  by 
the  gentleman  from  Charlotte  CMr.  Eggleston). 

The  Quesrions  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
41;  noes,  27. 

:\Ir.  Egglestons  amendment  was  agreed  to. 

Pending  a  motion  by  'Mr.  Withers  to  reconsider  the  vote,  the  Convention  adjourned 
until  to-morrow,  Tuesday,  January  14,  1902,  at  10  o'clock  A.  M. 


TUESDAY.  January  14.  1902. 

The  Convention  met  at  10  o'clock  A. 
Prayer  By  Rev.  W.  T.  Devrieux.  D.  D. 

Pollard:    I  ask  the  consideration  of  the  amendment  offered  by  me  to  Rule  S. 
The  Secretary  read  as  follows: 

Resolved.  That  Rule  S  be  amended  by  the  addition  of  the  following  after  the  word 
"payment,"  in  line  16:  ''Provided,  That  in  certifying  the  amount  due  each  member  he 
shall  deduct  S4  for  each  day  such  member  is  absent  without  leave  first  obtained,  unless 
such  member  be  thereafter,  for  good  cause,  excused  by  the  Convention." 

The  resolution  was  rejected. 

The  President:  The  unfinished  business  this  morning  is  the  motion  made  by  the 
gentleman  from  Danville  (Mr.  Withers)  to  reconsider  the  vote  by  which  the  amend- 
ment offered  by  the  gentleman  from  Charlotte  fMr.  Eggleston)  striking  out  certain 
words  in  Section  2  was  adopted. 

The  Question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
37:  noes.  32. 

The  motion  to  reconsider  was  agreed  to. 

The  President:  The  question  recurs  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Charlotte  (Mr.  Eggleston). 

Mr.  Pollard:    In  the  first  place,  the  teachers,  the  members  of  the  faculty  of  these 


1798  DEBATES  OF  THE  COXSTITUTIONAL  COJs'YE^^TION'  OF  VIEGINIA. 


institutions  of  higher  learning,  draw  their  compensation  from  the  State,  and  in  the 
opinion  of  many  of  us  on  the  committee  the  State,  for  that  reason,  had  a  right  to 
command  their  services  without  any  extra  compensation.  If  other  educators  are 
elected,  who  are  not  in  any  way  connected  with  the  public  institutions  of  the  State, 
we  would  have  no  right  to  ask  of  them,  without  compensation,  the  great  sacrifice  of 
time  which  would  be  required  in  service  upon  this  board.  In  the  selection  of  text- 
books their  time  would  perhaps  be  occupied  for  weeks  and  months.  In  the  election 
of  school  superintendents  much  of  their  time  would  be  occupied.  Making  the  rules 
and  regulations  for  the  government  of  the  public  schools  is  no'  small  task.  It  was 
thought  by  our  committee  that  the  State  had  a  right  to  command  the  time  of  those 
whom  the  State  paid,  while  it  would  not  have  the  right  to  command  the  time  of  others 
who  did  not  receive  compensation  from  the  State;  and  therefore  we  thought  it  was 
unreasonable  to  ask  any  prominent  educators  not  paid  by  the  State  to  give  the  great 
amount  of  time  which  is  necessary  to  the  performance  of  duty  on  this  board. 

In  the  second  place,  we  thought  that  if  the  selection  were  limited  to  the  faculties 
of  the  public  institutions*  of  this  State  that  we  would  be  absolutely  certain  to  have 
serving  upon  that  board  men  of  experience  and  capacity.  And  in  the  third  place  we 
knew  that  every  public  institution  in  this  State  was  dependent  for  its  prosperity  on  the 
public  school  system. 

The  gentleman  from  Halifax,  on  yesterday,  said  that  he  felt  that  the  people  in  his, 
section  had  a  suspicion  of  those  who  were  connected  with  the  higher  institutions  of 
education,  that  they  feared  these  gentlemen  did  not  take  an  interest  in  the  common 
schools.  But,  gentlemen,  by  virtue  of  their  very  positions  they  must,  of  necessity,  take 
an  interest  in  the  public  school  system.  How  could  the  school  at  Farmville  exist  with- 
out the  public  school  system?  Does  not  its  prosperity  depend  upon  the  prosperity  of 
the  public  school  system?  And  so  it  is  with  all  our  public  institutions.  All  the  men 
connected  with  those  institutions  know  that  the  success  of  their  institutions  depends 
on  the  success  of  the  public  school  system,  and,  therefore,  they  have  the  very  strongest 
reasons  for  fostering  and  supporting  the  interest  of  the  public  school  system.  There- 
fore, even  the  sordid  motives  of  self-interest  would  insure  their  interest  in  the  common 
schools,  from  which  most  of  the  students  in  these  institutions  must  be  drawn. 

I  would  like  to  call  attention  to  the  fact  that  the  Committee  of  the  Whole  on  two 
different  occasions  have  decided  by  an  overwhelming  vote  that  such  a  board  as  that 
recommended  should  be  constituted.  In  the  substitute  offered  by  the  gentleman  from 
Charlotte  there  is  no  such  guarantee  that  we  will  have  men  of  capacity  and  men  whose 
interests  require  them  tO'  foster  the  public  school  system,  and  I  hope,  therefore,  that 
this  Convention  will  stand  by  the  report  which  is  the  result  of  so  much  labor  and 
thought  on  the  part  of  your  committee. 

Mr.  Watson:  Mr.  President,  I  dislike  to  occupy  the  time  of  the  Convention  when 
every  disposition  isi  manifested  to  come  to  a  vote  on  this  subject,  but  I  hope  that  the 
Convention,  in  its  haste  to  get  rid  of  this  subject,  is  not  going  to  make  the  mistake  of 
losing  sight  of  a  very  important  principle.  The  main  object  the  committee  had  in 
view  in  formulating  this  report  was  to  allow  the  educational  element  in  the  State,  as 
contrasted  with  the  political  element,  to  have  at  least  a  half,  and  perhaps  the  pre^ 
pohderating  influence,  upon  the  State  Board  of  Education.  If  the  resolution  offered  by 
the  gentleman  from  Charlotte  prevails,  whatever  else  it  means,  it  does  mean  that  the 
State  Board  of  Education  will  not  only  be  put  into  politics,  but  that  it  will  be  controlled 
hy  politics.  I  say  so,  sir,  because  the  Governor,  the  Attorney-General  and  the  Superin- 
tendent of  Public  Instruction  are  three  officials  directly  responsible  to  the  people  and 
elected  by  political  influences.  I  say  that  if  the  Senate  of  Virginia  names  three  mem- 
bers of  the  Board  of  Education,  no  matter  whether  you  call  them  distinguished  educators 
or  not,  they  are  selected  and  constituted  by  the  political  power  of  the  State,  which  is 
a  part  of  the  Legislature.  The  three  educators  you  propose  to^  elect,  sir,  under  the 
resolution  of  the  gentleman  from  Charlotte  will  be  selected  in  senatorial  caucus  in  the 
same  manner  that  other  State  officers  are  selected  before  the  legislative  body,  and  will 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIRGIXIA. 


1799 


lie  directly  responsible  to  the  political  influences  dominating  the  State  at  the  particular 
time  of  their  selection. 

I  should  like  to  inquire  of  the  gentleman  from  Charlotte  what  possible  precedent 
he  has  ever  found  for  taking  the  House  of  Delegates  out  of  participation  in  this  impor- 
tant subject  and  devolving  upon  the  Senate  alone  the  appointment  of  these  three  mem- 
bers of  the  Board  of  Education? 

Mr.  Eggleston:  I  refer  him  to  the  Committee  on  Education.  They  seem  to  have 
found  a  precedent  for  it,  and  found  it  was  justifiable,  because  they  brought  in  this 
report  here  under  which  the  Senate  of  Virginia  made  these  selections,,  and  not  the 
General  Assembly. 

Mr.  AVatson:  Mr.  President,  I  consider  it  an  ungracious  task  to  inform  the  gentle- 
man that  the  education  report  simply  gives  the  Senate  the  power  of  selection  from  a 
list  already  proposed  to  it,  and  in  no  sense  the  power  of  original  choice,  which  are  two 
things  as  far  apart  as  the  poles,  in  my  humble  judgment.  The  Senate  of  Virginia  con- 
firms a  great  many  appointments  made  by  the  Executive  Department  under  all  the 
Constitutions  of  this  State;  but  I  say  there  is  not  a  single  precedent  for  devolving  upon 
the  Senate  an  appointive  and  elective  power  that  is  denied  to  the  House  of  Delegates, 
as  it  is  under  the  resolution  of  the  gentleman  from  Richmond,  if  he  wants  to  be 
logical  about  the  matter,  and  if  this  thing  ought  to  be  dumped  upon  the  Legislature, 
I  insist  there  is  no  precedent  and  no  principle  in  withholding  from  the  House  of  Dele- 
gates the  power  which  he  undertakes  to  devolve  exclusively  upon  the  Senate. 

Now,  Mr.  President,  the  Committee  on  Education  has  undertaken  to  divide  the 
political  element,  composed  of  the  Governor,  the  Attorney-General  and  the  Superin- 
tendent of  Public  Instruction,  and  the  educational  element,  composed  of  the  three 
members  of  these  faculties  of  public  institutions,  half  in  two,  so  as  to  make  one-half 
of  that  board  directly  responsible  to  public  sentiment  in  the  State  and  to  political 
influences  and  me  other  half  directly  independent  of  it.  Now,  to  connect  this  State 
board  with  the  public  educational  system  in  the  State  (a  thing  which  my  friend  from 
Charlotte  has  not  attempted  to  do,  because  he  has  cut  off  the  county  and  city  superin- 
tendents who  are  associated  with  the  board  by  the  committee's  report),  the  committee 
has  seen  fit  to  call  in,  in  an  advisory  capacity,  one  county  and  one  city  superintendent 
from  different  parts  of  the  State,  so  as  to  make  a  direct  connection  with  the  public 
school  system.  The  committee  did  not  confer  upon  the  county  and  the  city  superin- 
tendent power  to  act  in  case  of  appointments,  for  the  simple  reason  that  they  would 
have  had  to  act  upon  their  own  appointments  or  upon  the  appointments  of  their 
associates  throughout  the  State. 

I  submit  that  the  criticism  of  the  gentleman  from  Winchester  (Mr.  Harrison),  that 
no  provision  is  made  here  against  these  people  coming  to  a  tie  at  some  time  or  other, 
is  not  entitled  to  any  serious  practical  consideration,  for  the  reason  that  it  seldom  hap- 
pens that  a  tie  would  occur  on  a  board  of  this  sort;  and  the  sense  of  public  responsi- 
bility, should  a  tie  occur,  would,  in  nearly  every  instance,  result  in  breaking  the  tie. 
I  submit  further,  Mr.  President,  that  if  a  tie  should  occur  on  these  questions  of  appoint- 
ment, where  six  men  control  the  appointments,  there  is  good  reason  for  supposing  that 
that  thing  ought  not  to  be  done  which  six  men  cannot,  agree  should  be  done.  But  I  do 
not  believe  that  this  side  of  the  millennium,  or  this  side  of  the  time  when  the  gentleman 
from  Frederick  will  become  an  old  man,  which  will  be  a  long  number  of  years,  such  a 
thing  will  ever  arise  in  practice;  and  I  am  satisfied  that  suggested  contingency  is  one 
that  need  not  be  provided  against  in  this  constitutional  article. 

To  be  perfectly  frank  with  the  Convention  and  with  myself,  if  the  State  Board  of 
Education  is  to  be  appointed  by  political  influences,  and  if  it  is  to  be  a  part  of  the 
political  system  of  the  State,  I  should  be  very  glad  to  see  the  Legislature  make  the 
appointments.  If  it  be  a  good  thing,  I  have  no  objection  to  the  Legislature  undertaking 
to  do  the  T^ork.  I  would  not,  with  my  friend  from  Charlotte  (Mr.  Eggleston),  cut  off 
from  any  participation  in  this  thing  the  House  of  Delegates,  the  members  of  which  are 
the  people's  direct  representatives,  but  I  would  devolve  it  upon  the  whole  Legislature 


1800 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


and  let  them  make  the  selection.  I  repeat,  if  it  is  to  be  a  political  appointment  and  if 
political  influences  are  to  dominate  the  State  Board  of  Education  I  should  be  most 
happy  to  see  it  done  by  the  Legislature  undertaking  to*  exercise  that  power;  but  if  we 
are  to  remove  it  from  politics,  if  we  are  not  to  call  upon  these  great  book  concerns, 
which  have  canvassed  so  many  of  the  Commonwealths  to  the  south  of  us,  and  which 
only  wait  to  enter  the  field  of  politics  in  old  Virginia,  if  we  are  toi  repress  those  people 
and  keep  them  beyond  our  northern  border,  I  submit  the  educational  element  on  the 
State  Board  ought  to  be  in  control  of  it  and  that  it  should  not  be  dragged  through  the 
mire  by  political  influences  and  political  conditions. 

Mr.  Thom:  Mr.  President,  I  wish  to  detain  the  Convention  but  a  moment,  and  I 
would  not  rise  at  all  were  it  not  for  the  consideration  that  it  seems  to  me  the  Conven- 
tion is  about,  if  its  votes  yesterday  is  an  indicatfon,  to-  lose  sight  of  an  essential  principle 
in  its  treatment  of  this  matter. 

To  me  an  overwhelming  consideration  in  addition  to  the  considerations  that  have 
been  mentioned  by  the  gentleman  who  has  just  taken  his  seat  (Mr.  Watson),  in  favor  of 
the  general  policy  of  this  report  is  that  it  takes  the  common  school  education  of  the 
State  with  the  university  education  of  the  State.  I  cannot  believe  that  it  will  be  to  the 
disadvantage  of  the  poorer  children  of  the  State  to  have  imbued  into  their  mental 
training  the  scientific  methods  of  higher  education.  I  cannot  believe  that  there  is  any 
justification  for  suggestions  which  I  hear  upon  this  floor  that  there  must  be  a  line  of 
demarcation  between  the  rich  man  and  the  poor  man  in  Virginia,  and  that  one  of  these 
classes,  must  be  considered  out  of  sympathy  with  the  other  in  the  matter  of  the  educa- 
tion of  our  youth. 

I  can  find  no  sympathy  with  this  talk  about  the  universities  and  the  colleges  and 
the  higher  institutions  of  the  State  being  schools  for  the  rich  man's  sons.  I  can  find 
no  syjnpathy  for  the  thought  suggested  here  that  the  common  schools  of  the  State  are 
the  schools  for  the  poor  man's  sons.  It  seems  to  me  we  are  attempting  or  should 
attempt,  to  establish  here  one  harmonious  system  of  education  in  which  worth,  whether 
rich  or  poor,  aspiration,  no  matter  from  whence  it  springs,  shall  be  able  to  enter  the 
common  school  system  of  our  State  and  pass  up  from  the  lowest  to  the  highest  place 
in  our  educational  system  and  be  fitted  for  the  higher  walks  of  life  in  connection  there- 
with. 

Now,  Mr.  President,  if  we  will  put  representatives  of  the  university  thought  of 
this  State  upon  that  board  of  common  school  education,  we  will  thereby  infuse  into  the 
management  of  the  public  schools  of  the  State  the  higher  educational  thought  of  the 
country.  Is  it  right  or  is  it  wrong  to  give  the  poorer  children  of  the  State  this  opportu- 
nity for  a  touch  at  something  higher  than  the  ordinary  conception  of  primary  education? 
This  consideration  overweighs  all  others  in  my  mind.  While  I  agree  that  it  isi  desirable 
to  keep  the  school  board  out  of  politics,  while  I  agree  that  it  is  desirable  to  keep  the 
hands  of  the  book  companies  off  of  the  politics  of  Virginia,  feel  more  intensely  that 
it  is  our  duty  here  toi  give  to  the  poorer  children  of  our  State  some  touch  of  the  scientific 
educational  thought  of  the  day,  and  to  me  this  suggestion  from  the  Committee  on 
Education  has  been  fraught  with  more  hope  and  more  suggestion  of  the  elevation  of 
the  sentiment  of  our  people  than  anything  else  that  has  occurred  in  the  Convention. 
As  I  read  the  sentiment  of  the  people  of  Virginia,  as  I  read  their  conception  of  life  and 
of  duty  and  of  purpose,  I  think  they  have  been  in  touch  with  a  problem  for  the  last 
thirty  years  that  has  lowered  their  standard,  and  I  desire  in  this  to  find,  in  some 
measure,  an  antidote  for  the  poison  which  has  infused  itself  into  the  body  politic. 

I  believe  this  will  be  done,  to  a  certain  extent,  by  giving  toi  the  children  of  the 
State  a  broader  field  of  education,  and  putting  them  in  touch  with  the  higher  and  more 
liberal  fields  of  thought,  and  letting  our  poor  children  have  the  same  elevating  influences 
that  every  man  within  the  sound  of  my  voice  who  has  entered  a  university  or  an  educa- 
tional institution  of  the  higher  grade  has  felt  the  moment  he  began  to  come  in  contact 
with  the  real  educational  system  of  the  State. 

I  do  trust,  therefore,  that  we  will  not  divorce  the  common  school  education  from 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTIOX  OF  VIRGINIA.  1801. 

the  university  thought  of  the  State  of  Virginia,  and  that  the  gentlemen  of  the  Conven- 
tion will  reconsider  what  they  did  yesterday  and  will  enable  uS:  to  fceep  the  higher 
grades  of  education  in  touch  with  and  influencing  the  common  grade  schools  of  the 
State. 

Mr.  Bouldin:  Mr.  President,  I  do  not  understand  that  the  amendment  of  the  gen- 
tleman from  Charlotte  contemplates  any  divorcement  of  the  higher  grades  of  educa- 
tion from  the  common  school  system.  On  the  contrary,  it  seems  to  me,  sir,  that  it 
simply  provides  for  the  mode  of  selecting  the  board  charged  w^ith  the  direction  of  the 
matter  of  education,  differing  somewhat  from  that  sugested  by  the  committee,  but 
having  for  its  object  the  same  purposes.  The  political  element  is  retained  by  the 
amendment  proposed  by  the  gentleman  from  Charlotte,  and  in  addition  thereto  three 
educators  chosen  from  the  State  at  large  are  provided  for  to  manage  the  common  school 
system.  There  is  no  question,  sir,  of  the  fact  that  the  friends  of  the  common  schools 
throughout  the  State  desire  to  enlarge  and  perfect  that  system  in  every  possible  way, 
and  I  understand  that  this  amendment  contemplates  only  adding  to  the  political  ele- 
ment, of  the  board  of  three  educators  to  be  selected  by  the  Senate  of  Vir- 
ginia from  the  State  at  large,  instead  of  from  the  faculties  of  the  higher  institutions 
of  learning,  who  shall  be  charged  with  the  special  duty  of  attending  to  the  interest  of 
the  common  schools  of  the  State. 

The  point  we  make,  sir,  Is  that  the  eligibles  proposed  by  the  report  of  the  commit- 
tee— the  members  of  the  faculties  of  the  higher  institutions  of  learning — nominated 
by  the  boards  of  visitors  and  trustees  of  these  institutions  are  not  the  persons  to  whose 
hands  we  should  be  compelled  to  submit  the  care  of  the  common  school  system.  We 
desire  that  the  non-political  element  of  the  State  Board  of  Education  should  be  selected, 
whether  it  be  taken  from  the  State  institutions,  institutions  not  owned  by  the  State, 
or  from  private  stations  of  life,  from  the  men  of  education  in  the  State  at  large  that 
this  element  of  the  State  Board  of  Education  should  be  selected  from  men  whose  time 
is  not  wholly  occupied  with  the  duties  of  their  own  institutions,  and  who  thus  may  be 
able  to  devote  greater  time,  labor  and  energy  to  the  promotion  of  the  eflaciency  of  the 
common  schools  system.  We  do  not  propose  to  raise  any  antagonism  between  the 
children  of  the  rich  man  and  the  poor  man.  I  take  it,  sir,  that  that  question  is  not  at 
all  involved  in  the  m^atter  of  the  adoption  of  this  amendment.  The  friends  of  the 
amendment  desire  to  advance  the  cause  of  the  common  schools  in  every  possible  way, 
and  have  no  desire  to  restrict  its  eflB.ciency  in  any  manner.  They  wish  to  make  it  the 
doorway  to  the  higher  institutions  of  learning,  but  they  believe  that  the  best  mode  of 
doing  so  is  to  have  the  State  Board  of  Education  selected  from  educators  of  the  highest 
ability,  proficiency  and  culture,  and  that  the  v,^hole  range  of  the  State  be  open  to  the 
Senate  for  selection,  instead  of  limiting  that  body  to  nominations  made  hy  the  boards 
of  visitors  and  trustees  of  these  higher  institutions  of  learning  from  their  own  faculties. 
We  desire  that  the  board  shall  be  composed  of  the  best  men  attainable  by  the  Senate 
from  the  State  at  large,  and  not  from  any  limited  class. 

As  to  the  expense  of  it,  sir,  if  it  is  necessary  these  men  ought  to  be  paid — and  1 
take  it  that  unless  the  Constitution,  in  providing  for  this  board,  should  go  further  and 
provide  that  they  shall  not  be  paid — the  Legislature  will  make  such  sufficient  compen- 
sation for  their  labor  as  it  may  deem  the  public  interest  requires.  If  you  add  the  labor 
of  the  proposed  board  to  the  present  duties  of  the  professors  of  the  university  and  col- 
leges mthout  additional  compensation,  what  guarantee  have  you  that  you  will  secure 
the  necessar>^  efficiency  of  the  system?  These  professors  have  enough  to  do  with  their 
own  particular  duties  at  this  time.  The  board  of  visitors  and  the  professors  of  the 
University  have  all  that  they  can  do  to  maintain  that  institution  and  to  advance  it; 
and  so  with  the  other  institutions.  They  will  have  neither  the  time  nor  the  opportunity 
to  devote  the  necessary  care  and  affection  to  the  management  of  the  public  school 
system.  If  the  board  is  constituted  as  contemplated  by  the  amendment  of  the  gentle- 
man from  Charlotte,  how  can  it  be  said  that  this  will  militate  against  bringing  the 
common  schools  in  touch  with  the  colleges  and  higher  institutions  of  learning?  The 
114 — Const.  Deb. 


1802 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


board  is  to  be  selected  from  the  educated  men  of  the  entire  State,  without  restriction, 
and  it  will  be  required  to  devote  its  time  exclusively  to  the  common  school  system.  I 
can  see  no  sufficient  reason  why  it  cannot  elevate  that  system  and  improve  it  and  bring 
it  in  touch  with  the  branches  of  education  that  are  taught  in  the  higher  grades  as  fully 
as  the  board  constituted  in  the  manner  proposea  by  the  committee. 

Now,  sir,  as  to  the  political  matters  and  the  school  books.  Gentlemen  of  the  Con- 
vention, there  must  be  some  appointing  power  for  these  boards,  and  in  my  judgment 
that  power  can  be  no  better  placed  than  in  the  General  Assembly  of  the  State;  and  I 
hope  my  friend  from  Charlotte,  if  his  amendment  shall  prevail,  will  accept  an  amend- 
ment  putting  the  General  Assembly  in  the  place  of  the  Senate  for  the  purpose  of 
electing  the  board.  But  even  if  that  power  is  confined  to  the  Senate,  what  higher  and 
better  board  for  the  purpose  of  nomination  and  election  could  you  have  than  that  body 
of  men?  Are  the  professors  of  our  university  and  colleges,  whose  lives  are  devoted 
exclusively  to  building  up  the  higher  institutions,  who  are  without  experience  with  the 
common  schools,  between  whom  and  the  common  school  system  there  has  been  more 
or  less  of  antagonism,  better  qualified  to  secure  the  welfare  of  the  common  school  sys- 
tem than  the  General  Assembly  or  the  Senate?  Is  not  the  Senate  better  informed  and 
equally  qualified  to  nominate  this  board?  Do  these  boards  of  visitors  and  trustees 
possess  any  special  advantages  over  the  Senate  of  Virginia?  I  think  not.  The  General 
Assembly  is  deemed  qualified  to  elect  the  judges  of  our  highest  courts,  and  can  it  be 
doubted  that  that  body  or  the  Senate  of  the  State  is  fully  competent  to  elect  the  board 
of  education.  In  my  judgment  the  cause  of  the  common  schools  is  perfectly  safe  when 
in  the  hands  of  the  General  Assembly  or  the  Senate. 

As  to  the  politics  involved  in  the  plan  proposed  by  the  amendment,  I  w^ould  say  we 
have  politics  in  all  the  plans,  and  that  it  is  utterly  impossible  to  remove  the  schools 
entirely  from  the  field  of  politics.  The  plan  of  the  committee  is  not  free  from  the 
change.  The  visitors  of  the  various  institutions  are  appointed  by  our  governors,  and 
we  all  know  that  as  a  general  rule  they  are  selected  from  the  political  friends  and  sup- 
porters  of  the  governors  in  recognition  of  political  service.  As  to  resisting  the  book 
agents'  importunities,  I  believe  that  any  board  chosen,  either  in  the  manner  proposed 
by  the  committee  or  the  amendment  of  the  gentleman  from  Charlotte,  would  be  amply 
able  to  resist  these  importunities,    I  can  see  no  force  in  this  objection. 

Believing,  gentlemen  of  the  Convention,  that  the  common  school  system  ought  to 
be  directed  by  a  board  separated  from  the  board  which  governs  the  other  institutions, 
and  selected  from  the  ablest  educators  of  the  State  at  large,  I  trust  that  it  may  be  the 
pleasure  of  this  body  to  adhere  to  its  action  of  yesterday  and  stand  by  the  amendment 
of  the  gentleman  from  Charlotte. 

Mr.  Hamilton:  Mr.  President,  I  feel  it  is  not  improper  to  say  a  word  on  this  sui»- 
^ect.  I  thought  when  this  matter  was  considered  and  finally  acted  upon  in  the  Com- 
mittee of  the  Whole,  the  result  of  the  action  was  practically  satisfactory  to  all  gentle- 
men in  tnis  body.  The  question  is  certainly  not  whether  this  action  would  help  any 
college  in  the  State.  The  question  is,  what  is  best  for  the  public  school  system,  as 
distinguished  from  th^t  education  which  takes  place  in  colleges?  Upon  that,  and  that 
alone,  the  decision  should  rest. 

I  do  not  believe  it  will  be  any  advantage  to  any  of  the  State  colleges  mentioned 
to  have  representatives  from  their  faculties  on  this  board.  I  think  it  is  more  probable 
that  if  there  is  the  possibility  of  any  politics  or  dissatisfaction  growing  out  of  the  action 
of  the  board,  those  colleges  may  become  involved  and  therefore  have  trouble  on  ac- 
count of  it.  But  that  is  not  the  question  either.  The  supervisors,  the  people  connected 
with  the  faculties  of  these  higher  institutions  of  learning  are  officers  and  servants 
practically  of  the  State  of  Virginia,  elected  indirectly,  but  elected  by  boards  appointed 
wholly  by  the  State  and  governed  by  the  State. 

Certain  it  is,  Mr.  President,  whether  there  is  truth  or  not  in  the  statement,  there 
have  been  allegations  that  the  State  Board  of  Education  has  been  to  some  extent  used 
for  political  purposes.    I  know  nothing  about  it,  but  that  board  should  be  so  consti- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIRGIMA. 


1803 


tuted  as  practically  to  forbid  that  suggestion.  Tlie  board  should  be  above  reproach  in 
that  matter. 

Uov,-  can  you  have  a  more  disinterested,  impartial  board  than  the  board  as  con- 
stituted in  the  report  which  we  have  before  us,  as  altered  and  amended  by  the  Com- 
mittee? You  haA-e  three  people  on  it  elected  by  the  people,  as  I  understand,  the  Gov- 
enor,  the  Attorney-General  and  the  Superintendent  of  Public  Education. 

You- have  three  people  elected  by  the  Senate  of  Virginia,  or  the  General  Assembly, 
I  do  not  care  which,  from  the  list  of  eligibles,  and  that  list  of  eligibles,  would  embrace 
six  people  each  time  three  had  to  be  elected;  so  that  when  a  man  with  improper  char- 
acteristics is  presented,  he  can  be  readily  rejected.  You  are  not  forced  to  take  any 
particular  man  from  any  particular  institution  merely  because  his  name  is  sent  up  by 
the  board  of  visitors,  or  trustees  of  that  instittition.    You  may  reject  him. 

That  is  a  board  really  appointed  by  the  State,  because  the  three  men  on  the  board 
are  appointed  by  the  board  of  trustees  or  visitors  of  State  colleges,  and  they  are  ap^ 
pointed  by  the  Governor  of  Virginia  and  their  nomination  is  confirmed  by  the  Senate. 
It  is  almost  impossible  that  any  improper  influence  could  go  through  that  ramification 
of  appointments  in  this  way. 

Xow  with  respect  to  those  jnen  and  as  to  their  pay.  I  do  not  think,  Mr.  President, 
that  any  man  called  an- experienced  educator  should  be  put  on  this  board  and  paid  any 
salary  whatever.  Their  actual  expenses  should  be  paid,  and  no  more,  just  as  is  the 
case  in  the  appointment  of  trustees  or  visitors  to  the  State  colleges  and  institutions. 
The  man  who  goes  upon  one  of  those  boards  with  the  idea  of  making  any  money  out  of  it 
is  unfit  to  go  upon  it  and  unnt  to  serve  upon  it,  and  whenever  it  is  apparent  he  has  any 
selfish  purpose  on  one  of  those  boards,  or  anything  to  make  out  of  it,  I  think  nothing 
can  be  clearer  than  that  he  should  be  displaced  as  quickly  as  the  law  will  permit.  The 
best  service  gotten  from  people  of  that  kind  in  Virginia  on  such  boards  is  the  seiwice 
that  comes  from  men  who  voluntarily  and  gladly  give  their  best  attention  to  such 
matters  from  a  high  sense  of  duty  and  from  that  alone.  So  it  ought  to  be  that  these 
men  from  the  colleges  placed  upon  the  State  board  should  not  be  permitted  to  have 
one  dime  beyond  their  actual  expenses. 

As  to  the  time  it  wotild  take  for  them  to  discharge  their  duties,  I  do  not  believe 
it  would  taKe  a  bit  more  time  tnan  is  given  in  the  honest  and  faithful  discharge  of  the 
duties  of  a  member  of  the  trustees  or  board  of  visitors  of  the  UniA^ersity  of  Virginia  or 
the  Poh^technic  School  or  the  Farmville  School  or  the  Military  Institute.  Any  man 
who  serves  upon  any  one  of  tnose  boards,  and  is  fit  to  serve  upon  it,  gives  to  the  ser- 
vice of  the  State  a  considerable  time  during  the  year,  but  it  is  a  needful  service,  and 
there  is  no  reason  why  these  men  should  not  give  such  reasonable  time  as  is  neces- 
sary in  attending  upon  meetings.  They  can  examine  text-books  at  their  homes.  They 
do  not  need  to  attend  a  board  meeting  to  do  that.  I  doubt  extremely  whether  it  would 
be  necessary  for  the  members  of  the  board  to  meet  any  oftener  than  or  perhaps  as 
often  as  the  board  of  visitors  of  the  University  of  Virginia  or  the  State  Female  X'ormal 
School.  Therefore  the  pay  of  the  gentlemen  need  not  be  taken  into  consideration,  I 
take  it.  I  would  be  in  favor  of  putting  in  here  a  provision  that  they  should  have  no 
pay,  but  that  ony  their  actual  necessary  expenses  should  be  paid. 

I  cannot  see  that  the  method  proposed  by  the  gentleman  from  Charlotte  (Mr. 
Eggleston)  is  not  far  superior  to  many  other  methods.  I  think  it  is  a  great  deal  better 
to  have  the  method  proposed  by  him  than  to  have  existing  the  present  board  of  educa- 
tion, which  is  certainly  in  danger  of  being  tainted  by  political  considerations:  but  I 
think  the  board  which  the  geniieman  from  Charlotte  proposes  has  not  the  advantages 
of  the  other  boards.  It  is  true  it  opens  the  appointments  for  this  board  to  all  the 
people,  as  you  may  say,  of  the  State.  I  cannot  see,  Mr.  Chairman,  that  that  is  entirely 
desirable.  With  an  idea  that  it  may  help  some  college  from  which  a  professor  comes 
and  is  put  upon  that  board,  there  may  be  friends  to  influence  the  Legislature,  which 
the  gentleman  from  PLichmond  (Mr.  Meredith)  spoke  of  as  the  lobbying  influence.  I 
cannot  think  that  would  be.  or  could  be,  the  case  with  these  State  institutions,  them- 


1804 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


selves  part  and  parcel  of  the  State  government  and  State  system  of  education.  It 
seems  to  me  that  the  conclusion  of  the  Committee  of  the  Whole  on  this  subject  is  the 
best  and  happiest  one  we  can  have,  and  in  my  judgment  the  best  one  we  can  get.  I 
hope  the  action  of  the  Committee  of  the  Whole  will  be  approved  by  the  Convention. 

Mr.  Harrison:  Mr.  President,  if  I  understand  the  proposition,  it  is  not  so  much 
the  professors  of  these  various  institutions  who  are  to  be  put  on  this  board,  but  those 
professors  who  are  selected  by  the  boards  of  the  institution.  Now  I  cannot  understand 
why  the  General  Assembly  or  the  Senate  should  be  limited  to  the  men  who  are  selected 
by  the  boards  of  the  institution.  If  we  are  to  have  professors  as  members  of  this  board, 
to  which  I  do  not  see  any  great  objection,  why  not  let  the  General  Assembly  select 
from  the  whole  corps  of  the  faculty,  instead  of  being  restricted  to  those  who  are 
selected  by  the  boards  of  the  institufion.  The  boards  of  the  institution  are  not 
responsible  in  any  shape  or  form  to  the  people  or  to  the  representatives  of  the  people. 
They  are  appointed  at  different  periods  of  time,  and  are  appointed  by  different  execu- 
tives. 

Mr.  Watson:  I  rise  to  inquire  if  he  is  speaking  in  advocacy  of  the  Eggleston 
amendment? 

Mr.  Harrison:    Yes,  sir. 

Mr.  Watson:  I  desire  to  inform  the  gentleman  that  the  Eggleston  amendment 
does  not  provide  that  the  General  Assembly  shall  select  anybody.  It  provides  that  the 
Senate  of  Virginia  shall  do  it. 

Mr.  Harrison:  Well,  that  matter  can  be  guarded  when  the  question  comes  up, 
after  the  adoption  of  the  resolution.  That  may  be  done  by  simply  striking  out  certain 
words  here;  but  the  General  Assembly,  or  the  Senate,  if  that  is  more  satisfactory  to  the 
gentleman  from  Nottoway  (Mr.  Watson)  will  be  limited  by  the  selection  of  the  pro- 
fessors by  the  boards  of  those  institutions  which  are  utterly  irresponsible  to  any  in- 
fluence which  the  people  can  throw  around  them.  If  it  is  a  good  thing  for  these 
professors  to  be  upon  this  board,  why  not  give  the  freest  opportunity  to  the  General 
Assembly  to  select  from  the  faculties  of  the  various  institutions  those  professors  which 
the  General  Assembly  thinks  would  best  subserve  the  interests  of  the  public  schools? 
Why  limit  the  General  Assembly  to  the  names  of  five  men  selected  by  five  dif- 
ferent boards  from  five  different  institutions,  when  the  whole  faculties  of  the  five 
institutions  are  left  open  for  the  selection  and  the  choice  of  the  General  Assembly 
of  the  State? 

Mr.  Glass:    You  have  been,  I  believe,  a  member  of  the  State  Senate? 
Mr.  Harrison:    Yes,  sir. 

Mr.  Glass:  Was  there  any  time  during  your  service  in  the  State  Senate  when, 
if  called  upon,  you  could  tell  what  v/as  the  particular  qualification  of  any  particular 
member  of  any  faculty  of  any  of  these  institutions? 

Mr.  Harrison:  Mr.  Chairman,  in  reference  to  that  m^atter,  I  believe  the  Senate 
and  General  Assembly  will  generally  be  guided  by  the  advice  of  the  several  boards 
or  the  faculties  of  the  institutions;  but  at  the  same  time  I  do  not  think  it  wise  that 
the  General  Assembly  or  the  Senate  should  be  concluded  by  these  boards.  Let  them 
liave  the  advice  of  the  board  and  then  permit  them  a  free  selection  from  the  faculties 
of  those  institutions.  In  saying  this,  Mr.  President,  I  have  no  hostility  to  any  of  these 
Institutions.  I  am  proud  of  the  fact  that  I  am  an  alumnus  of  the  University  of  Vir- 
ginia, and  there  is  noi  member  of  the  Convention  who  has  a  warmer  affection  for  that 
Institution  than  I  have;  but  the  selection  by  these  various  boards  is  what  I  object  to; 
and  the  fact  that  these  boards,  who  are  no  part  of  the  institution  or  the  alumni  of  the 
institution,  should  dictate  to  the  General  Assembly  of  the  State  which  one  of  the  mem- 
"bers  of  a  faculty  shall  be  the  m.ember  to  go  upon  the  board  and  have  the  control  of 
the  public  schools  of  the  State. 

I  would  suggest  the  provision  that  the  General  Assembly  shall  be  guided  by  the 
advice  of  those  boards,  and  listen  with  respect  to  their  suggestions  as  to  who  should 
go  upon  the  board,  but  at  the  same  time  leave  their  hands  untied  to  select  whom  they 
shall  see  fit  in  case  they  do  not  consider  the  recommendation  to  the  board  as  proper. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1805 


AVe  all  know  these  boards  are  made  up  more  or  less  of  politicians.    Tliey  are 
selected  from  the  friends  of  the  Governor,  who  possibly  have  been  most  active  in^ 
securing  his  nomination  and  election.    Why,  then,  take  a  body  of  politicians,  many  of 
them  able,  intelligent  and  honest  men,  but  still  politicians,  who  are  not  responsible 
to  the  people? 

Mr.  Hamilton:  Are  you  not  mistaken  in  saying  that  these  boards  are  appointed 
by  the  Governor  usually  from  his  personal  friends?  I  admit  they  are  to  some  extent, 
but  you  must  recollect  these  boards  are  appointed  for  one,  two  and  three  years,  and 
no  Governor  has  an  opportunity  to  appoint  more  than  two-thirds  of  any  board  during 
his  four  years'  term. 

Mr.  Harrison:  I  will  ask  the  gentleman  from  Petersburg  if  it  is  not  tnie  that 
generally  the  members  of  these  boards  have  been  active  politicians,  who  have  at  one 
time  or  another  been  active  in  aiding  one  Governor  or  another  to  secure  his  office? 
I  will  make  an  exception  of  the  gentleman  from  Petersburg. 

Mr.  Hamilton:  I  do  not  ask  to  be  excepted  in  anything  or  about  anj'thing.  I 
will  answer  the  gentleman's  question.  According  to  my  observation,  as  a  rule,  the 
men  so  appointed  are  people  Oj.  some  personal  force  and  status  and  usefulness  in  their 
communities.  I  do  not  doubt  that  their  being  personally  agreeable  to  the  appoint- 
ing power  has  something  to  do  vritli  their  appointments  ordinarily,  but  I  know  there 
are  exceptions  to  that  as  a  reason  for  appointment. 

Mr.  Harrison:  I  believe  there  are  exceptions  to  every  rule,  Mr.  President.  I 
knew  the  members  of  the  board  are  generally  members  of  high  character  and  in- 
fluence; I  believe  a  politician  is  generally  that  kind  of  man,  and  I  believe  in  politi- 
cians; but  I  say  that  is  more  or  less  a  political  board;  that  they  act  in  secret;  that 
their  proceedings  are  not  public  or  open;  that  they  are  an  irresponsible  board  to  the 
public;  that  the  General  Assembly  of  the  State  are  to  have  the  final  say  as  to  which 
members  of  a  faculty  should  be  placed  upon  the  board,  and  that  the  action  of  these 
various  boards  of  five  different  institutions  ought  not  to  be  conclusive  upon  the  repre- 
sentatives of  the  people. 

If,  out  of  five  men,  three  have  to  be  selected,  I  cannot  see  what  range  of  selection 
is  given.  Only  two  men  can  be  rejected.  A\Tiy,  then,  go  through  the  idle  formula  of 
having  the  selection  made  by  the  General  Assembly,  when  they  cannot  do  anything 
more  than  reject  two  out  of  five  of  the  men  who  are  suggested  to  them?  It  would 
seem  that  the  nomination  is  in  effect  left  to  these  various  institutions,  who,  as  I  say, 
cannot  be  held  in  any  way  responsible  for  what  they  do,  and  whose  action  may  not 
be  known  until  they  lay  it  before  the  Senate.  Therefore,  I  think  the  amendment  of 
the  gentleman  from  Charlotte  should  be  agreed  to. 

Mr.  Meredith:  Mr.  President,  I  desire  to  call  attention  to  the  fact  that  the  object 
of  allowing  the  boards  of  visitors  or  trustees  to  elect  these  officers,  instead  of  the 
faculty,  is  to  prevent  what  has  been  suggested  here  v>'ould  happen — the  bitterness  of 
feeling  of  disappointment  that  would  occur.  If  you  allow  these  eligibles  to  be  sug- 
gested by  the  faculty  there  will  be  some  trouble.  There  will  be  some  feeling  occa- 
sioned among  them;  but  if  you  allow  them  to  be  selected  by  the  boards  of  visitors 
or  trustees  that  is  removed,  and  there  will  be  none  of  it,  because  they  are  not  voting 
for  each  other,  but  are  dependent  entirely  upon  the  vote  of  the  board  of  trustees  or 
visitors.  I  simply  say  that  in  reply  to  the  remarks  of  the  gentleman  from  Frederick 
(Mr.  Harrison). 

I  want  to  call  attention  to  one  evil,  though,  that  seems  to  exist  under  the  pro- 
posed amendment.  The  idea  is  to  strike  out  all  of  Section  2  from  the  word  ''from," 
in  line  5,  and  that  leaves  the  language,  "that  there  shall  be  elected  every  four  years 
three  experienced  educators."  I  stated  on  yesterday  the  uselessness  of  putting  in 
that  language.  It  does  not  bind  anybody,  and  is  not  going  to  affect  the  Legislature; 
but  I  will  call  your  attention  to  the  fact  that  every  four  years  you  will  have  before 
the  Legislature  of  Virginia  one-half  of  the  school  board  of  the  State  to  be  elected. 


1806 


DEBATES  OF  THE  COXSTITUTIO^TAL  CONVENTION  OF  VIRGINIA. 


You  are  simply  opening  the  doors  for  another  fight  among  the  school  book  agents 
«  of  the  country,  and  they  will  make  a  desperate  effort  every  four  years  to  control  at 
least  one-half  of  the  school  board  of  the  State.  Every  four  years  one-half  of  the  State 
Board  of  Education  of  this  State,  that  is  to  decide  upon  the  class  of  books  to  be  used, 
is  to  be  elected  by  the  Senate  of  Virginia.  You  are  offering  a  bid  to  those  people  to 
come  in  and  contest  for  and  buy,  as  far  as  they  can,  one-half  of  the  State  Board  of 
Education.  I  do  not  mean  to  say  you  cannot  get  as  good  men,  and  as  honest  men, 
and  men  as  free  from  anything  of  that  kind  outside  of  the  faculties  of  these  different 
institutions,  but  I  do  mean  to  say  that  the  effort  that  will  be  made  every  four  years 
by  the  people  who  have  books  to  sell  will  be  to  find  somebody  whom  they  can  buy. 
Is  not  that  natural?  Instead  of  having  men  who  will  be  free  of  all  that;  men  whose 
situation  in  life  would  not  suggest  anything  of  that  kind;  men  whose  situation  in  life 
would  remove  them  from  any  temptation  of  that  kind,  you  propose  to  put  here  an 
opportunity  for  one-half  of  the  State  Board  of  Education  every  four  years  to  be  fought 
for,  or  to  be  bought,  as  far  as  that  can  be  done. 

I  earnestly  urge  that  before  any  gentleman  casts  his  vote  he  will  consider  the 
danger  he  is  putting  in  the  path  of  the  State  of  Virginia  as  to  the  public  education 
of  the  State,  and  that  you  will  allow  the  State  Board  of  Education  to  be  selected  from 
those  men  who  are  experienced  educators  and  v/hose  lines  of  life  are  such  that  they 
would  not  be  subjected  to  the  temptations  to  which  some  men  would  be  subjected 
who  run  for  this  office,  if  they  simply  want  to  get  in  there  for  what  they  can  get  out 
of  it.    I  earnestly  urge  that  the  report  of  the  committee  be  sustained. 

Mr.  Eggleston:  Mr.  President,  when  I  offered  this  amendment  to  the  report  of 
the  committee  I  had  no  idea  that  such  an  action  on  my  part  could  be  by  anybody 
construed  as  an  attack  upon  the  higher  institutions  of  learning  in  the  State.  No  man 
in  the  General  Assembly  of  Virginia  has  been  a  more  urgent  friend  and  supporter  of 
each  one  of  those  institutions  than  myself.  In  offering  this  amendment,  Mr.  President, 
I  did  so  because  I  felt  the  deepest  interest  in  the  common  schools  of  the  State,  and 
because  I  did  not  think  a  board  of  education,  constituted  as  it  is  proposed  to  consti- 
tute this  board,  would  serve  the  best  interest  of  Ihose  schools. 

Now,  let  us  see  what  is  this  amendment.  It  is  charged  that  I  have  undertaken  to 
inject  politics  intO'  the  composition  of  this  board,  while  the  committee  has  undertaken 
to  include  politics  from  it.  I  wish  the  Convention  to  understand  that  every  political  ele- 
ment and  every  political  influence  v/hich  will  go  into  the  constitution  of  the  Board  of 
Education  under  my  proposed  amendment  was  put  there  by  the  committee  itself,  and  not 
by  the  effect  of  my  amendment.  In  moving  to  strike  out  the  latter  part  of  this  clause, 
sir,  I  undertook  to  make  a  wider  field  for  the  selection  of  these  educators  who  are 
to  compose  the  board.  Who  can  find  any  fault  with  that?  If  it  is  proper  that  we 
should  have  educators  on  this  board,  is  it  not  proper  that  we  should  search  the  whole 
State  from  one  end  to  the  other  and  secure  the  services  on  the  board  of  the  most  suc- 
cessful, the  most  practical  educators  to  be  found  within  the  limits  of  the  State?  "V^Hiat 
right  have  we  to  say  that  all  of  the  wisdom,  all  of  the  executive  ability,  all  of  the 
practical  common  sense  and  all  of  the  knowledge  incident  to  the  management  of  the 
school  system  is  embodied  in  the  faculties  of  the  five  public  institutions  of  the  State? 

That  is  the  position  of  the  committee,  and  they  would  have  you  believe  that  when 
you  go  beyond  the  faculties  of  these  institutions  you  are  not  going  to  get  practical 
men,  or  that  you  are  not  going  to  get  men  who  have  an  interest  in  the  public  school 
system.  Wlhy,  Mr.  Chairman,  I  doubt  very  much  whether  any  member  of  the  faculty 
of  the  University  of  Virginia  ever  saw  the  inside  of  a  public  school,  and  if  left  to  his 
own  will  whether  he  ever  will  see  the  inside  of  one  of  them.  We  want  men  on  this 
board  who  have  a  direct  interest  in  the  public  school  system.  What  interest  have  these 
gentlemen?    Were  any  of  them  ever  educated  in  it?    I  doubt  it. 

We  have  been  told  it  is  absurd  to  leave  the  selection  of  these  tree  educators  to 
the  Senate  of  Virginia.  The  gentleman  who  raises  the  objection  knows  that  when  this 
amendment  is  passed  on  he  can  offer  an  amendment  to  change  the  method  of  selecting 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


1807 


these  educators.  I  do  not  care  vrliere  you  select  tliem.  If  I  liad  my  choice  ahoui  it  I 
should  not  select  them  by  the  Senate  of  T.rginia.  I  think  I  could  find  a  better  way 
of  selecting  them;  but  no  matter  how  :^  ou  undertake  to  select  tliem,  you  cannot  get 
rid  of  political  izfiuence.  How  are  they  to  be  selected  under  the  provisions  of  this 
section?  They  are  to  be  nominated  by  the  boards  of  visitors  of  these  various  insti- 
tutions. Who  compose  those  boards?  It  has' been  shown  by  the  gentleman  from  Win- 
chester {Ylv.  Harrison)  that  nine  men  out  of  ten  who  compose  those  boards  are  put 
there  because  of  political  influence,  because  of  their  political  friendship  with  and 
political  advocacy  of  the  cause  of  some  Governor  of  the  State.  They  are  politicians; 
not  less  worthy  because  they  are  politicians,  but  nine  times  out  of  ten  they  owe  their 
appointment  to  the  fact  that  they  are  politicians,  and  if  they  were  not  politicians  they 
never  would  have  gotten  them. 

Are  you  removing  the  public  school  SA'stem  from  politics  when  you  give  the  first 
selection  of  this  eligible  list  to  boards  of  visitors  who  are  composed  of  politicians,  and 
give  the  confirmation  of  them  to  a  Senate  composed  of  politicians?  If  there  is  any 
political  element  in  the  amenrment  offered  by  me  it  is  only  such  as  has  been  injected 
into  it  by  the  Committee  on  Education. 

3.1r.  President,  it  is  said  in  advocacy  of  this  proposition:  Give  the  children  of  the 
State,  rich  and  poor,  an  opportunity  for  a  touch  of  high  educational  influences."  I 
vvould  like  to  know  what  touch  of  high  educational  influence  they  get  from  a  board 
selected  in  this  way.  If  they  get  a  touch  of  the  influence  that  is  all  they  can  get  under 
the  report  of  the  committee.  T\liy?  Becatise  this  committee  has  absolutely  forbidden 
the  State  to  contribute  one  dollar  to  any  educational  cause  except  in  the  grammar 
grade  of  schools.  That  being  the  case,  the  State  does  not  give  fotir-fifths  of  the  children 
of  the  State  any  opportunity  whatever  to  get  in  touch  with  these  high  institutions  of 
learning.  They  have  cut  those  children  off  absolutely  from  them,  as  far  as  the  report 
of  the  committee  could  do  so,  and  as  far  as  the  Constitution  to  be  adpted  by  the  Con- 
vention can  do  it.  The  State  cannot  contribtite  a  dollar  to  anything  but  these  grammar 
schools.  Then  how  are  these  children  going  to  get  otit  of  the  grammar  schools  into 
the  University  of  Virginia?  Then.  :\Ir.  President,  the  only  touch  they  can  get  of  higher 
education  is  the  touch  the  people  will  get  through  the  treasury  of  the  State,  and  I  say 
the  composition  of  this  board  will  give  these  institutions  absolute  control  of  your  treas- 
ury. 

It  is  said  it  can  be  no  possible  advantage  to  any  of  these  high  institutions  to  have 
a  membership  on  this  board.  Then.  Mr.  President.  I  want  to  ask  again,  as  I  asked 
yesterday,  why  do  we  find  the  faculties  and  heads  of  certain  institutions  here  lobbying 
and  log-rolling  to  get  back  on  this  board,  vrhen  it  was  intimated  they  were  going  to  be 
taken  off?    VCliy  were  they  here? 

Mr.  Hamilton:  This  m  the  second  time  I  have  heard  a  statement  somewhat  to  that 
effect  made  here.    It  was  made  once  before  by  some  gentleman. 

I  saw  the  head  of  one  school  here,  and  he  was  here  because  I  telegraphed  him 
and  asked  him  to  come.  He  had  personally  expressed  the  wish  not  to  be  on  such  a  board, 
but  there  had  been  an  unintentional  misstatement  made  as  to  his  position  with  refer- 
ence to  that  school  and  I  asked  him  to  come  here  to  correct  it.  because  I  thought  if 
any  of  the  State  colleges  were  put  on.  all  should  be.  That  was  the  reason  he  was  here, 
sir.  he  does  not  desire  to  be  on  the  board.  And  as  far  as  the  Virginia  Military  Institute 
is  concerned.  I  do  not  hesitate  to  say  that  if  you  do  not  put  all  the  State  colleges  on  I 
do  not  care  at  all  whether  it  goes  on  or  not. 

Mr.  Eggleston:  Now.  ]\rr.  President.  T  do  not  think  the  gentleman  quotes  me  just 
exactly  right.  I  said  the  men:bers  of  the  faculties  and  heads  of  some  institutions 
had  been  here  trying  to  get  back  on  this  board  when  it  was  intimated  they  were  going 
to  be  cut  off.  I  said  the  friends  of  all  these  institutions— men  who  are  known  to  be 
friends  of  all  these  institutiot^s — are  advocating  the  formation  of  this  board  in  the 
manner  presented  by  the  committee. 

By  the  report  of  the  committee  you  cut  off  four-fifths  of  the  children  from  any 


1808 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


opportunity  whatever,  as  far  as  the  State  is  concerned,  of  ever  getting  any  advantages 
from  these  public  institutions.  Not  satisfied  with  that,  in  the  constitution  of  the  board, 
which  will  be  the  very  life  and  existence  of  the  public  school  system  of  the  State,  jon 
tie  down  the  constitution  of  that  board  to  the  faculties  of  these  public  institutions, 
and  j^ou  virtually  say  to  the  people  of  the  State  that  if  these  public  institutions  go  down 
they  will  have  the  power  to  drag  down  with  them  your  public  schools  and  to  involve 
them  in  the  ruin  which  they  may  bring  down  on  their  own  institutions. 

Mr.  President,  is  it  fair  to  the  patrons  of  the  public  school  to  place  their  existence 
in  the  clutch  of  the  public  institutions,  and  if  those  public  institutions  go  down  to  drag 
down  the  whole  pubic  school  system  of  the  State  v/ith  them?  Is  it  wise?  Is  it  sensible 
to  do  such  a  thing  as  that?  And  for  what  good?  Because,  forsooth,  it  is  claimed  that 
the  several  boards  of  visitors  of  these  institutions,  appointed  on  account  of  political 
services  rendered,  are  better  capable  of  selecting  men  who  should  be  on  this  board  of 
education  than  are  the  representatives  of  the  people  sent  to  the  capitol  for  the  purpose 
of  representing  them. 

More  than  that,  Mr.  President,  I  warn  you  gentlemen  that  when  you  so  constitute 
this  board,  in  the  first  place,  you  are  putting  in  the  constitution  that  which  will  pile  up 
against  its  adoption  thionsands  and  thousands  of  votes  all  over  the  State.  I  doubt 
whether  a  Constitution  with  such  a  provision  as  that  in  it,  in  my  own  county,  would 
get  fifty  votes,  if  they  understand  what  they  are  doing.  You  are  doing  wrong.  You 
are  raising  up  in  the  State  of  Virginia,  a  direct  antagonism  to  the  public  institutions  of 
the  State  which  will  result  perhaps  in  their  temporary  benefit,  but  in  their  ultimate 
destruction.    That  is  what  you  are  doing;  and  why  do  it? 

Now,  as  to  the  manner  in  which  these  educators  are  selected  I  do  not  care  how 
they  are  selected.  If  you  wish  the  Governor  to  nominate  them  and  the  Senate  to  con- 
firm them,  I  am  perfectly  willing  for  that.  If  you  wish  the  General  Assembly  to  elect 
them,  I  am  perfectly  willing  for  that;  but  it  was  the  proper  parliamentary  method  to 
amend  this  section — first,  to  cut  out  this  clause,  and  then,  if  you  see  fit,  to  amend  and 
change  the  manner  in  which  these  educators  are  to  be  selected.  No  one  knows  that 
better  than  the  gentleman  from  Nottoway  (Mr.  Watson),  who  has  made  that  the  subject 
of  criticism.  After  you  have  cut  out  the  clause  which  confines  the  selection  to  the 
heads  of  these  institutions,  then  you  can  amend  the  section  further  by  providing  the 
manner  in  which  the  educators  are  to  be  selected,  if  you  are  not  satisfied  with  the 
method  reported  by  the  committee. 

Mr.  President,  you  have  been  told  that  this  is  the  only  method  in  which  you  can  con- 
trol this  matter  and  keep  the  selection  of  your  Board  of  Education  out  of  the  hands  of  book 
companies.  Since  I  have  been  on  this  floor,  Mr.  President,  I  have  heard  a  great  many 
things  about  the  people  of  Virginia;  I  have  heard  a  great  many  hara  things  said  about 
the  officers  of  the  State  of  Vhginia;  but  I  have  never  yet  heard  the  people  of  the  State 
so  severely  arraigned  and  so  severely  condemned  as  in  the  remark  that  they  cannot 
send  their  representatives  here  to  do  their  bidding,  because,  forsooth,  they  will  be 
bought  by  the  book  companies.  Mr.  Pi'esident,  if  the  book  companies  can  buy  the 
Senate  of  Virginia  they  can  buy  the  board  of  visitors  of  any  public  institution  in  the 
State  of  Virginia.  If  they  undertake  to  buy  the  Senate  of  Virginia,  taking  it  on  a  com- 
merical  basis,  they  have  got  to  buy  twenty-one  men.  It  will  be  just  as  easy  to  buy  a 
majority  of  the  members  of  the  boards  of  four  institutions' — twenty  men — dollar  for 
dollar.  How  much  more  does  the  gentleman  from  Richmond  think  it  would  take  to  buy 
twenty  members  of  the  boards  of  visitors  of  public  institutions  than  it  would  to  buy 
twentj^-one  members  of  the  Senate  of  Virginia? 

In  the  formation  of  the  fundamental  law  of  the  State  we  are  asked  to  consider  the 
fact  that  we  cannot  trust  the  Senate  of  this  old  Commonwealth,  and  that  in  forming 
this  clause  we  must  take  into  consideration  the  fact  that  the  book  companies  may  buy 
the  Senate  of  Virginia.  If  the  book  companies  are  going  to  buy  the  Senate  they  can 
buy  the  board  of  visitors  of  the  University  of  Virginia;  and  if  we  have  got  to  provide 


DEBATES  OF  THE  COXSTITCTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


1S09 


for  appointments  beyond  the  reach  of  any  influence  wliatever  we  must  get  them  dropped 
down  from  above. 

As  I  said  yesterday,  and  I  want  to  repeat  it,  I  shall  never  vote  for  a  provision  which 
will  give  boards  of  visitors,  composed  of  boards  of  politicians,  a  political  agent  in  eveiT 
city  and  county  in  the  State  of  Virginia  to  do  their  bidding.  We  were  told  yesterday, 
"If  you  allow  the  General  Assembly  to  elect  the  members  of  this  board,  the  various 
members  will  want  to  trade  their  votes  for  members  of  the  Board  of  Appointments  of 
certain  school  superintendents."  I  tell  you  there  is  jtist  as  much  danger  that  those 
same  appomtments  will  be  traded  in  the  General  Assembly  for  votes  for  appropriations 
as  they  will  be  traded  in  the  selection  of  these  educators  who  compose  this  board. 

I  will  say  again  that  if  the  gentleman  from  Xoftovs-ay  does  not  approve  of  the  selec- 
tion of  these  three  educators  by  the  Senate,  let  him  propose  that  they  shall  be  elected 
by  the  General  Assembly  and  I  will  vote  for  it.  Let  him  take  the  Governor  off  this 
board,  and  let  him  propose  that  the  Governor  shall  appoint  them,  and  the  Senate  con- 
firm them,  and  I  will  vote  for  it.  Let  him  provide  any  other  method  for  the  selection 
of  these  educators  by  persons  who  are  directly  responsible  to  the  people  and  I  will 
vote  for  it;  but  I  will  never  be  willing  to  leaA'e  the  fortunes  of  the  common  schools  of 
the  Commonwealth  to  the  success  of  its  public  institutions  and  to  give  to  those  insti- 
tutions the  control  of  the  public  schools,  whether  they  make  their  own  institutions  suc- 
cessful or  not. 

The  Presiding  Officer:  The  pending  question  is  on  the  amendment  of  the  gentle- 
man from  Charlotte. 

The  qtiestion  having  been  taken,  the  result  was  announced — ayes,  29;  noes,  39. 
The  amendment  was  rejected. 

:\Ir.  Wescott:  Mr.  President,  I  move  to  reconsider  the  vote  Avhereby  the  School 
for  the  Deaf  and  Blind,  at  Staunton,  upon  the  motion  of  the  gentleman  from  Danville 
(Mr.  Withers),  was  stricken  out  of  the  list  of  State  institutions  authorized  under  the 
report  of  the  Committee  of  the  Vliole  to  select  this  list  of  eligibles. 

I  shall  detain  the  committee  only  for  a  moment  to  suggest,  as  briefly  as  possible, 
the  reasons  which  actuate  me  in  making  the  motion.  The  gentleman  from  Danville 
coupled  William  and  Mary  College  and  the  School  for  Deaf  and  Blind,  at  Staunton,  in 
his  motion  to  strike  out.  That  motion  was  separated,  and  as  the  result  of  two  separate 
votes  William  and  Mary  College  was  retained  in  the  list  of  institutions  authorized  to 
select  a  list  of  six  eligibles  and  the  School  for  Deaf  and  Blind,  at  Staunton,  was  left  out 
of  that  list. 

My  reason  for  this  motion,  mainly,  :Mr.  President  and  gentlemen,  is  that  the  ex- 
clusion of  this,  the  only  State  educational  institution,  is  an  invidious,  discrimination 
for  which  there  can  be  no  excuse,  as  I  can  see  the  situation,  in  the  conduct  of  this 
body.  Especially  is  that  true  when  the  action  of  the  Convention  leaves  in  the  list  of 
educational  institutions  an  institution  of  learning,  against  which  I  have  nothing  to 
say  further  than  to  call  the  attention  of  the  Convention  to  the  fact  that  it  is  not  an 
institution  owned  by  the  State  of  Virginia,  but  an  institution  of  learning  with  which 
the  State  has  a  merely  contractual  relation. 

One  word  further  and  I  shall  conclude.  Let  me  call  your  attention,  gentlemen, 
to  the  fact  that  no  possible  harm  can  ensue  to  the  public  school  interests  of  the  State 
of  Virginia  in  the  addition  of  this  institution  to  the  list,  because  its  effect  will  simply 
be  to  enlarge  the  number  of  eligibles  from  which  the  General  Assembly  shall  select 
the  educators  upon  this  board. 

At  the  very  time  when  this  matter  is  under  consideration,  permit  me  to  call  your 
attention  to  the  fact  that  the  superintendent  of  this  institution.  :\Ir.  William  A.  Bowles, 
is  one  of  the  most  conspicuous  educators  of  the  State,  in  so  far  as  he  has  demonstrated 
his  superiority,  coming  up  as  he  has  from  a  teacher  in  the  common  schools  of  the  State 
to  his  present  position.  I  dare  hazard  the  assertion  that,  as  present  constituted,  the 
recommendation  of  these  various  institutions  of  learning  to  the  general  Assembly  will 


1810 


DEBATES  or  THE  COITSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


contain  no  man  upon  its  list  of  eligibles  more  essentially  eligible  to  this  position,  more 
pre-eminent  as  an  educator — entitled  to  the  consideration  of  the  General  Assembly  by 
reason  of  his  past  record  as  an  efficient  teacher  and  manager  of  the  public  school  inter- 
ests of  the  State — than  the  present  superintendent  of  the  institution  to  which  my 
motion  refers.  For  years  he  was  a  teacher  in  the  public  schools  of  the  State.  He  then 
became  the  principal  of  the  high  school  of  the  city  of  Staunton.  He  then  succeeded 
to  the  position,  which  he  held  for  years,  of  superintendent  of  public  instruction  of  the 
city  of  Staunton.  Thereafter,  before  he  was  promoted  to  his  present  position  as 
superintendent  of  this  institution  for  the  deaf  and  blind,  he  held  for  years  the  high 
position  of  principle  of  the  high  schools  of  the  city  of  Richmond. 

In  the  name  of  reason,  gentlemen,  I  ask  you  not  to  make  any  such  invidious  dis- 
crimination against  an  institution  designed  for  the  betterment  of  the  educational  in- 
terests of  a  class  of  men  by  nature  sensitive,  especially  when  that  action  will  result 
in  excluding  from  this  list  of  eligibles  a  gentleman  who  sitands  pre-eminent  among  the 
educators  of  the  State,  in  so  far  as  his  direct  and  immediate  connection  with  the  public 
school  interests  is  concerned,  which  would  be  his  chiefest  recommendation  upon  this 
board. 

I  ask  you  gentlemen  to  take  into  consideration  the  fact  that  since  the  action  of 
this  body  hasi  been  reconsidered,  and  since  the  recommendation  of  the  Committee  of 
the  Whole  has  again  been  readopted  ^vith  this  single  exception,  you  leave  this  provision 
in  its  symmetry  according  to  the  recommendation  of  the  Committee  of  the  Whole,  and 
in  consonance,  as  I  understand  it,  with  the  wishes  of  the  Educational  Committee;  that 
you  restore  this  institution,  and  to  that  end  that  you  reconsider  your  vote  whereby 
this  single  educational  institution  of  the  State  was  discriminated  against  by  being 
stricken  out  from  the  list  of  institutions  authorized  under  this  enactment  to  furnish  the 
list  of  eligibles  for  the  board. 

The  motion  was  agreed  to. 

The  Presiding  Officer :  The  question  recurs  on  that  part  of  the  motion  of  the 
gentleman  from  Danville  (Mr.  Withers)  in  regard  to  striking  out  that  portion  of  the 
words  relating  to  the  School  for  the  Deaf  and  Blind. 

The  amendment  was  rejected. 

Mr.  Parks:  Mr.  President,  T  desire  to  offer  the  following  substitute  for  the  sect- 
tion : 

The  general  supervision  of  the  public  free  school  system,  of  the  State  shall  be  vested 
in  p,  State  Board  of  Education,  to  be  composed  cf  the  Governor,  Attorney-General,  Superin- 
tendent of  Public  Instruction  and  four  experienced  educators,  to  be  elected  by  the  joint 
vote  of  the  two  houses  of  the  General  Assembly  of  Virginia,  once  every  four  years,  and 
who,  at  the  time  of  their  election,  shall  be  engaged  in  education  in  some  institution  of 
learning  within  the  State,  and  the  payment  of  whose  expenses  while  serving  on  the  board 
shall  be  provided  for  by  the  General  Assembly. 

The  question  having  been  taken,  the  result  was  announced — ayes,  30;  noes,  37. 
The  substitute  was  rejected. 

Mr.  Barbour:    I  offer  the  following  amendment  to  Section  2: 

Strike  out  the  v/ords  "one  city  and  one  county  school  superintendent,"  in  lines  14  and 
15,  ard  substitute  the  words  "two  division  superintendents  of  public  s'^hools.  one  of  whom 
shall  be  from  one  of  tne  cities  and  one  from  one  of  the  counties  of  the  State. 

Mr.  Barbour:  Mr.  President,  T  will  simply  state  to  the  Convention  that  the  effect 
of  that  amendment  is  not  to  change  the  meaning  of  the  clause  at  all,  but  merely  to 
conform  its  phraseology  to  the  phraseology  adopted  by  the  committee.  Before  offering 
the  amendment,  I  submitted  it  to  the  chairman  of  the  committee,  and  it  meets  with  his 
approval. 

The  Presiding  Officer:  The  question  is  on  agreeing  to  the  amendment  of  the  gen- 
tleman from  Culpeper  (Mr.  Barbour). 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTICX  OF  VIRGIXIA. 


ISll 


The  amendmeni  TS'as  agreed  to. 

.Mr.  Thorn:  :\Ir.  Chairman,  I  merely  wish  lo  call  the  aTieniion,  specially  of  the 
chairman  of  this  committee,  to  the  fact  that  the  phraseology  as  now  contained  in  this 
section  might  produce  a  result  which  is  not  desired.  It  seems  to  me  that  as  at  present 
written  the  language  is  susceptible  of  the  interpretation  that  the  list  of  eligibles  is 
to  be  voted  for  by  the  combined  boards  of  these  various  institutions.  As  I  understand 
it,  each  one  of  these  boards  is  intended  to  furnish  one  eligible,  and  not  only  to  furnish 
that  eligible  from  the  board  itself,  but  to  elect  such  eligible  without  the  intervention  of 
any  other  board  in  making  the  selection.  I,  therefore,  suggest  that  that  trouble  is  not 
cured  by  the  provision  that  the  said  list  of  eligibles  shall  be  made  up  of  "one  name 
from  the  ofScial  corps  or  faculty  of  each  of  the  institutions  indicated." 

That  is  merely  as  to  how  the  list  of  eligibles  is  to  be  made  up.  not  as  to  who  shall 
choose  them,  and  it  is  to  cure  that  that  I  suggest  in  line  6,  after  the  word  '•'eligible. 
the  words  "one  each"'  be  inserted,  and  after  the  word  '■furnish.'"  in  the  same  line,  the 
word  "respectively""  be  inserted,  so  that  it  will  read:  "From  a  list  of  eligibles.  one  each 
shall  be  furnished  by  the  boards,'"'  etc. 

Z\Ir.  Mciiwaine:    I  accept  tne  amendment. 

The  Presiding  Officer:    The  question  is  on  agreeing  to  the  amendment  of  the  gen- 
tleman from  Xorfolk  (5Ir.-  Thoml. 
The  amendment  was  agreed  to. 

I\Ir.  Brown:    I  move  the  adoption  of  the  section  as  amended. 
The  motion  was  agi^eed  to. 

:\Ir.  Walker:    I  desire  to  offer  the  following  amendment  to  Section  3: 

Insert  after  the  word  "instrtiction.""  in  line  5.  the  following:  ''TSTlo  shall  be  an  ex- 
perienced educator." 

That  part  of  the  section  will  then  read: 

The  Stiperintendent  of  Public  Instruction,  who  shall  be  an  experienced  educator,  shall 
be  elected  by  a  vote  cf  the  aualined  voters  of  the  State. 

Mr.  President,  it  would  seem  to  be  tmnecessary  to  offer  an  argument  in  support 
of  the  proposed  amendment 

If  it  is  thought  desirable  and  necessary  that  the  members  of  that  board  shall  be 
experienced  educators,  then  it  seems  to  me  it  is  all  the  more  desirable  that  the  Superin- 
tendent of  Public  Instruction  should  himself  have  some  experience  in  educational  mat- 
ters and  be  at  least  equally  as  well  qualified  to  serve  as  other  members  of  the  board, 
as  he  is  the  head  of  it. 

3.1r.  r\IcHwaine:  Mr.  President,  I  rise  to  second  the  amendment  vTiich  has  been 
offered  by  the  gentleman  from  Northumberland  (Mr.  Walker),  and  to  say  that  in  my 
honest  judgment  no  action  of  the  Convention  will  give  so  much  pleastire  and  so  much 
of  hope  to  the  friends  of  education  in  the  State  of  Virginia  as  the  adoption  of  this 
amendment.  I  suppose,  sir,  every  single  educator  with  whom  I  have  come  in  contact 
this  summer  and  fall  and  winter  who  is  interested  in  the  subject  of  the  public  schools  of 
Virginia,  has  urged  this  point  upon  me.  I  do  believe  that  the  insertion  of  these  words 
will  very  greatly  strengthen  the  report,  and  I  hope  it  will  be  done. 

Mr.  Lincoln:  ^Mr.  President.  I  desire  to  ask  the  gentlemen  who  have  advocated 
this  proposition  this  question:  Suppose  the  people  of  the  State  of  Virginia  elect  as 
Superintendent  of  Public  Instruction  a  man  who  is  to  decide  the  question  as  to  whether 
he  is  an  experienced  educator  or  not;  who  is  to  decide  the  constitutional  question, 
after  the  people  have  elected  him  as  Superintendent  of  Public  Instruction? 

Mr.  :McIlwaine:  That  question  occurred  to  me  before  I  rose  to  my  feet,  but  wishing 
to  hurry  through  it.  it  escaped  my  observation  at  the  time.  It  will  be  an  indication  to 
those  who  have  the  nominating  power  of  what  they  are  expected  to  do.  Fortunately. 


1812  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

sir,  for  us  in  Virginia,  there  are  two  parties,  and  if  one  party  puts  up  an  incompetent 
man  for  this  position  and  the  other  party  puts  up  a  man  of  education  and  of  fitness,. 
iL  will  almost  insure  the  election  of  the  man  who  is  fit  for  the  position. 
At  this,  point  the  President  resumed  the  chair. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Northumberland  (Mr.  Wallier). 

The  amendment  was  agreed  to. 

Mr.  Meredith:  I  now  offer  my  amendment — to  strike  out  all  from  the  word  "the," 
in  line  5,  page  3,  down  to  line  8,  and  insert  in  lieu  of  the  words  stricken  out  the  fol- 
lowing: "The  State  Board  of  Education;  and  shall  hold  office  for  a  term  of  four 
years." 

I  do  not  propose  to  discuss  the  matter  at  any  length.  I  simply  wish  to  say  that  the 
vote  which  wasi  taken,  by  which  it  was  required  that  the  superintendent  should  be 
elected  by  the  people,  was  based  upon  the  theory  that  the  board  as  constituted  had 
very  little  touch  with  the  people.  That  has  certainly  been  remedied  tO'  a  very  great 
extent.  There  are  to  be  on  the  board  men  selected  by  the  Legislature  out  of  a  class  of 
experienced  educators,  a  city  and  a  county  superintendent,  the  Grovernor  and  the 
Attorney-General;  and  I  submit  that  the  reasons  that  were  given  heretofore  for  the 
change  do  not  now  exist  to  the  extent  it  was  imagined  they  did  exist  at  that  time. 

Mr.  Withersi:  Mr.  President,  I  beg  leave  to  call  the  attention  of  the  ConventiQn 
to  what  the  proposed  amendment  of  the  gentleman  from  Richmond  means.  It  may  be 
tiresome  to  do  so,  but  I  want  the  Convention  to  consider  for  one  moment  that  the 
amendment  means  that  the  Convention  is  afraid  to^  let  the  people  of  Virginia  say  who 
shall  be  at  the  head  of  the  educational  system.  It  means  that  the  members  of  the 
Convention,  sent  here  by  the  grace  and  power  of  the  people  of  Virginia,  are  afraid  of 
the  people  and  do  not  dare  trust  them,  and  it  puts  the  stigma  of  opprobrium  and  odium 
and  condemnation  upon  them  whenever  it  seeS'  fit  to  so  do. 

I  want  to  respectfully  protest  against  any  such  thing  as  this.  I  do  not  believe  it 
is  creditable  to  the  Convention  tO'  assume  that  position.  We  have  now  constituted  a 
board  that  is  practically  within  the  appointing  power  of  the  Governor  of  Virginia.  Of 
that  I  have  no  criticism  to  make,  as  it  has  been  settled.  But  now  the  proposition  is.  made 
that  the  head  of  the  entire  educational  system  of  Virginia  shall  be  independent  of  the 
will  of  the  people,  and  created  by  somebody  else  than  that  will,  and  I  think  we  ought 
to  pause  and  consider,  and  remember  that  these  gentlemen,  who  are  ever  afraid  of 
the  people,  have  the  bit  in  their  teeth  and  are  about  to  carry  us  to  the  precipice  of 
popular  distrust. 

I  hope  my  earnestness  may  not  be  considered  discourtesy,  or  undue  zeal,  but  I  do 
respectfully  protest,  and  most  earnestly  protest,  against  this  ever-present  manifestation 
of  condemnation  and  distrust  in  the  intelligence,  the  sound  sense  and  honesty  of  the 
sovereign  people  of  this  State. 

Mr.  Claggett  B.  Jones:  Mr.  President,  I  desire  to  say  to  the  gentleman  from 
Danville  that  there  are  two  views  in  which  you  may  look  at  this  question.  It  may  be 
that  some  gentlemen  are  afraid  to  vote  according  to  their  honest  judgment,  because 
they  are  afraid  of  the  people,  and  afraid  to  vote  that  the  people  should  not  be  allowed 
to  elect  every  officer  to  be  constituted  by  the  Convention.  There  are  two'  ways  of 
looking  at  the  question.  The  gentleman  knows  the  sentiment  of  the  people  he  repre- 
sents, but  he  is  not  supposed  to  know  the  sentiment  of  the  people  of  every  section  of 
the  State.  He  comes  from  Danville.  Other  gentlemen  come  from  the  Southwest  sec- 
tion of  the  State,  others  from  Tide-water  and  South  Side;  and  it  seems  to  me  the  gen- 
tleman goes  too  far  when  he  undertakes  to  speak  for  the  whole  State  asi  to  what  the 
wishes  of  the  people  may  be  generally. 

Therefore,  I  respectfully  submit  that  the  gentleman,  in  my  humble  judgment,  goes 
entirely  too  far  when  he  undertakes  to  criticise  the  Convention  for  not  doing  all  his 
judgment  may  dictate  should  be  done,  or  what  the  people  of  his  section  think  should 


DEBATES  OE  THE  COX STITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


1S13 


be  done.  Gemlemen  upon  this  floor  are  supposed  to  represent  their  respective  cou- 
stituencies  and  to  know  what  those  constituencies  wish,  but  it  seems  to  me  the  gentle- 
man's criticism  is  unfounded  and  unjust  when  he  says  every  gentleman  upon  this  floor 
who  does  not  vote  that  the  peopie  may  elect:  every  officer  to  be  constituted  by  the  Con- 
vention is  afraid  of  the  people.  As  I  said  in  the  beginning,  sir,  it  may  be  that  gentle- 
men are  afraid  of  the  people  in  two  senses  of  the  word.  Therefore,  Mr.  President,  it 
does  seem  to  me  the  gentlemen  of  this  Convention  should  be  allowed  to  exercise  their 
honest  juagment  in  deciding  these  questions,  with  cut  being  constantly  taunted  with 
being  afraid  of  the  people  and  not  trusting  the  people. 

Mr,  Mcllwaine:  Mr.  President,  if  I  understand  our  position  it  is  that  we  are  here 
in  order  to  get  for  the  people  the  very  Best  Constitution  it  is  in  our  power  to  give  them. 
If,  in  our  honest  judgment,  we  think  it  is  best  for  the  people  to  have  the  election  of 
any  particular  officer  or  officers  we  ought  by  all  means  to  giA'e  it  to  them.  If,  on  the 
other  hand,  it  is  our  honest  judgment  that  a  mode  better  than  that  can  be  devised,  by 
which  the  people  can  be  saved  trouble,  it  is  our  positive  duty  to  devise  that  method. 

A  few  moments  ago,  when  I  made  some  very  brief  remarks,  I  said  that  in  my  honest 
judgment  no  action  could  be  taken  by  the  Convention  which  would  not  only  do  more 
good  to  the  public  schools  of  the  State,  but  would  give  more  pleasure  to  their  friends 
than  the  insertion  of  the  amendment  of  the  gentleman  from  Westmoreland  (Mr. 
Walker) .  I  now  say,  sir,  that,  in  my  honest  judgment,  the  amendment  of  the  gentle- 
man from  Richmond  is  almost  equivalent  to  that  of  the  gentleman  from  Westmoreland, 
and  that  the  friends  of  education  in  Virginia  and  the  intelligent  people  of  Virginia  will  be 
equally  gratified  with  the  insertion  of  the  amendment  of  the  gentleman  from  Richmond. 

Mr.  President,  why  upon  the  face  of  the  earth  should  we  be  eternally  twitted  with 
the  accusation  that  we  are  taking  away  from  the  people  their  rights?  It  is  one  of  the 
inalienable  rights  this  very  day  of  the  people  of  Virginia  to  expect  you  and  me  to  think 
for  them  here  and  to  devise  the  best  plan  we  can  to  carry  out  their  wishes.  It  is  the 
unanimous  verdict  of  the  educators  in  the  State  that  the  best  way  of  choosing  the 
State  Superintendent  of  Public  Instruction  is  by  the  State  Board  of  Education.  There- 
fore, sir,  I  do  hope  the  amendment  of  the  gentleman  from  Richmond  will  prevail.  I 
honor  the  people.  I  am  one  of  the  people.  I  have  lived  among  them  and  labored  for 
them  all  my  life. 

Mr.  Keezell:  'Mv.  President,  when  this  matter  was  before  the  Committee  of  the 
Whole  it  was  discussed  at  considerable  length,  and,  by  a  very  decisive  vote,  the  Com- 
mittee of  the  VTiole  decided  that  the  Superintendent  of  Public  Instruction  should  be 
elected  by  the  people.  As  T  understand  it.  the  composition  of  the  Board  of  Education 
as  now  constituted  by  the  Convention,  and  as  reported  from  the  Committee  of  Educa- 
tion and  the  Committee  of  the  Whole,  has  been  controlled  by  the  idea  that  upon  that 
hoard  there  would  be  three  persons  who  would  be  elected  by  the  people — three  who 
would  represent  the  educational  interests  of  the  State — being  connected  with  the  State 
Institutions  of  higher  education,  as  proposed  by  the  committee,  or,  as  proposed  by  the 
gentleman  from  Page  (Mr.  Parks),  by  educators  in  any  institution,  and  that  there  should 
be  a  balance  kept  between  the  particular  representatives  of  the  higher  institutions  of 
learning  and  the  representatives  of  the  board  elected  by  the  people. 

What  would  be  the  effect  of  the  amendment  of  the  gentleman  from  Richmond  f^Ir. 
Meredith)  ?  It  would  be  to  put  the  composition  of  the  Board  of  Education  and  the  con- 
trol of  its  affairs  absolutely  and  entirely  in  the  control  of  the  State  institutions.  Those 
institutions  would  have  three  representatives  upon  the  board.  The  people  would  elect 
two.  if  his  proposition  were  to  go  into  effect;  and  then  a  board  consisting  of  five  mem- 
bers, two  elected  by  the  people  and  three  chosen  by  the  State  institution,  would  elect 
the  Stiperintendent  of  Public  Instruction:  then  you  would  have  a  board  made  up  of 
two  representatives  amenable  to  the  people  and  four  amenable  to  the  higher  institu- 
tions of  the  State;  and  you  might  just  as  well  publish  to  the  world  that  you  had  turned 
over  the  public  free  school  system  of  Virginia,  bound  hand  and  foot,  to  the  higher 


1814 


DEBATES  OF  THE  CONSTII UTIONAL  CONVEXTION  OF  VIRGINIA. 


institutions  of  the  State  and  that  the  people  would  haA^e  no  control  whatever  over  it. 

I  do  hope  this  Convention  will  let  this  matter  rest,  since  it  has  adopted  the  first 
or  second  clause  of  the  report,  whichever  it  may  be,  and  reconsidered  it,  so  that  there 
is  now  no  possibility  of  a  change  in  the  composition  of  the  board. 

I  was  not  one  of  those  who  believed  that  the  present  constitution  of  the  board  was 
the  best  that  could  be  proposed.  It  is  very  different,  I  think,  from  what  was  originally 
proposed,  and  a  great  improvement,  and  for  that  reason  I  contented  myself  simply  with 
voting  for  a  change,  which  I  thought  v/ould  further  improve  it,  and  did  not  raise  my 
voice  in  opposition;  but  now  it  seems  to  me  we  have  come  to  the  point  when,  if  we 
adopt  the  amendment  of  the  gentleman  from  Richmond,  we  will  confirm  the  charge 
that  the  whole  school  system  has  been  delivered  over  to  these  institutions,  horse,  foot 
and  dragoons,  and  that  the  people  of  Virginia  will  have  lost  control  over  their  public 
free  schools. 

Mr.  Brown:  Mr.  President,  I  hope  it  will  be  the  pleasure  of  the  Convention  to 
adopt  the  amendment  offered  by  the  gentleman  from  Richmond  (Mr.  Meredith).  If  the 
members  of  the  Convention  recall  the  occurrences  in  Committee  of  the  Whole,  they 
will  remember  that  that  was  the  original  report  of  the  Committee,  and  through  a  mis- 
understanding, the  day  the  vote  v'as  being  taken,  it  was  stated  on  the  floor  that  the 
majority  of  the  members  of  the  committee  had  agreed  to  the  election  of  the  Superin- 
tendent of  Public  Instruction  by  the  people.  Within  a  few  minutes,  however,  it  was 
ascertained  that  was  a  mistake  and  correction  was  m^ade  on  the  floor  of  the  Convention. 

As  a  matter  of  fact,  this  matter  was  not  exhaustively  discussed  in  the  committee, 
but  was  acted  upon  rather  hurriedly  and  in  the  confusion  that  exists  with  that  state 
of  affairs.  It  was  the  view  of  the  committee,  in  providing  that  the  Superintendent  of 
Public  Instruction  should  be  appointed  by  the  board,  to  remove  that  officer,  as  far  as 
possible,  from  the  baneful  influences  of  politics,  to  put  his  appointment  in  the  hands 
of  a  board  composed  of  educators,  whose  sole  idea  would  be  to  select  a  man  whoso 
views  on  education  would  be  broad — a  capable  man,  whO'  would  use  his  large  influence 
to  raise  the  public  s,chool  system  so  that  it  would  be  an  efficient  system.  It  was  the 
sole  idea  of  the  committee,  in  dealing  with  these  matters,  to  remove  the  school  system, 
as  far  as  possible,  from  the  baneful  effects  of  political  influence  and  to  put  its  head 
and  its  machinery  in  such  a  position  that  educational  ideas  would  prevail. 

Every  one  knows  that  when  you  put  an  officer  up  to  be  nominated  at  a  political  con- 
vention, whatever  restrictions  as  to  his  qualification  as  an  experienced  educator  may 
be  put  in  the  Constitution,  we  are  entrusting  his  selection  to-  a  body  already  occupied 
with  other  and  important  matters,  such  as  nominating  a  Governor,  an  Attorney- 
General,  a  Lieutenant-Governor  and  other  officers  of  the  State,  and  we  will  find  that  the 
fitness  of  the  Superintendent  of  Public  Instruction,  if  not  his  selection,  will  in  all 
probability  be  the  last  matter  considered.  Experience  with  political  conventions  of  that 
character  proves  that  the  geographical  considerations  weigh  very  heavily. 

I  hope,  therefore,  it  will  be  the  sense  of  the  Convention  to  restore  the  original  idea 
of  the  committee  and  to  support  the  views  of  the  gentleman  from  Richmond  in  the  mat- 
ter. 

Mr.  O'Flaherty:  Mr.  President,  I  do  not  want  to  m.ake  a  speech.  I  simply  wish  to 
say  that  I  endorse  every  word  the  gentleman  from  Danville  (Mr.  Withers)  has  said,  and 
I  desire  to  enter  my  protest  against  the  appointment  of  this  officer  in  the  manner  pro- 
posed. Wte  have  gone  s.o  far  in  the  direction  of  turning  school  matters  over  to  the  public 
institutions  of  Virginia  that  I  had  hoped  this  career  of  political  madness^  would  end. 
With  all  deference  to  gentlemen,  it  is  a  career  of  political  madness  in  that  direction.  I 
do  hope  we  will  stop  it,  and  that  we  will  not  take  from  the  people  the  only  school  officer 
they  have  the  right  to  elect.  As  the  representative  of  the  sovereign  people  of  Virginia, 
I  protest  against  any  such  enactment,  and  I  again  warn  you  not  to  do  it.  I  know  I  can 
say  nothing  that  will  change  the  vote.  I  have  seen  how  futile  my  efforts  have  been  upon 
this  floor,  but  in  the  interest  of  the  people  of  Virginia,  and  in  the  interest  of  the  good 
old  Democratic  party,  I  urge  you  not  to  do  it.    That  is  all  I  have  to  say. 


DEBATES  OF  THE  COXSTITCTIOXAL  COXVEXTIOX  OF  VIKGIXIA. 


1815 


Mr.  Wysor:  Mr.  President,  I  simply  desire  to  say  that  I  concur  in  what  the  gen- 
tleman from  Prince  Edward  (Mr.  Mclhyaine)  faid  on  this  subject  I  hope  this  office  may 
be  made  elective  by  the  Board  of  Education.  I  will  vote  for  the  amendment  offered  by 
the  gentleman  from  Richmond  CMr.  :\Ieredithj  Avith  great  pleasure,  and  will  think  I 
am  doing  the  people  of  the  Commonwealth  a  service  by  so  A'oting. 

The  president:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
rrom  Richmond  city  CMr.  jleredith^  to  strike  out  the  words  '"qualified  electors  of  the 
State;  and  after  his  first  term,  which  shall  be  fixed  by  law  he  shall  be  elected  at  the 
same  time  as  the  Governor,"  and  insert  the  words,  "State  Board  of  Education;  and 
after  his  first  term,"  etc. 

Mr.  Waddill:  On  this  question  I  am  paired  with  the  gentleman  from  the  city  of 
Richmond  (Mr.  Pollard).    If  he  were  present  he  v.-ould  vote  yea  and  I  should  vote  nay. 

Mr.  Moncure:  I  am  paired  with  the  gentleman  from  the  city  of  Richmond  CMr. 
Gordon).    If  he  were  present  he  would  vote  yea  and  I  should  vote  nay. 

The  vote  having  been  taken,  the  result  was  announced — ayes,  19;  noes,  49 — as 
follows: 

Ayes — Messrs.  Allen,  Ayers,  Brown,  Carter,  Epes,  Glass,  Hamilton,  Hatton,  Hunton, 
Ingram,  Clagget  B.  Jones,  Lincoln,  Mcllwaine,  Meredith,  Portlock,  Robertson,  Watson, 
AVise  and  Wysor — 19. 

Noes — IMessrs.  Barbour,  Barham,  Thomas  H.  Barnes,  Blair,  Boaz.  Bouldin.  P.  W. 
Campbell,  Crismond,  Davis,  Dunaway,  Earnian,  Eggleston,  Fairfax,  Fletcher,  Gilmore, 
Gillespie,  B.  T.  Gordon,  Gwyn,  Hancock.  Hardy.  Harrison,  Hooker,  G.  W.  Jones,  Keezell, 
i^awson.  Lindsay.  Loveil,  ^Marshall.  Miller.  R.  Walton  IMoore.  ^Mundy.  O'Flaherty, 
Orr,  Parks,  Pedigo,  Phillips,  Quarles,  Richmond.  Rives,  Stuart,  Summers,  Turnbull,  Wal- 
ker, Walter,  Wescott,  Withers,  Yancey  and  the  President — 49. 

Mr.  Pollard  was  paired  with  2dv.  Waddill  and  Mr.  James  W.  Gordon  with  Mr.  Mon- 
cure. 

The  first  named  would  have  voted  in  the  affirmative. 
Mr.  IMeredith's  amendment  was  rejected. 

:Mr.  :McIlwaine:  I  move  that  the  Convention  adopt  Section  3  of  the  report  as 
amended. 

Section  3  was  adopted 

Mr.  Mcllwaine:  I  move  that  in  the  consideration  of  Section  4  it  be  taken  up  para- 
graph by  paragraph. 

The  President:  That  will  be  taken  as  the  sense  of  the  Convention  unless  objection 
be  made. 

Sec.  4.    The  duties  and  powers  of  the  State  Board  of  Education  shall  be  as  follows: 

First.  It  may.  in  its  discretion,  divide  the  State  into  appropriate  school  divisions  and, 
subject  to  the  confirmation  of  the  Senate,  appoint  all  superintendents  of  schools  for  such 
divisions,  and  prescribe  their  duties,  and  may  remove  such  superintendents  for  cause  and 
upon  notice  to  the  incumbent:  Provided,  no  such  division  shall  comprise  less  than  one 
county  or  city,  nor  shall  any  county  or  city  be  divided  in  the  formation  of  any  such 
division. 

Mr.  Richmond:  I  move  to  amend  the  first  paragraph  of  Section  4  by  inserting 
after  the  v-ord  "divisions."  in  line  14.  the  words,  "who  shall  not  be  active  political 
partisans  while  holding  such  office." 

Mr.  President,  I  shall  not  detain  the  committee  with  any  elaborate  statement,  but  it 
is  very  desirable,  as  has  been  expressed  on  this  floor  on  many  occasions,  to  avoid,  as  far 
as  possible,  politics  in  the  school  system.  This  amendment,  in  my  opinion,  is  appropriate 
and  does  not  deprive  any  citizen  of  any  political  right,  however  active  he  may  desire  to  be. 
either  before  his  election  to  such  office  or  after  his  term  expires;  but  if  we  do  not  want 
the  school  system  fettered  and  clogged  with  active  political  partisan  superintendents, 
it  seems  to  m,e  it  would  be  wise  and  appropriate  to  inhibit  such  active  participation  in 
political  matters  during  his  incumbency.    I  think  it  would  be  a  wise  provision.    It  cer- 


1816 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tainly  would  keep  the  schools  and  the  school  managenient  out  of  politics  in  a  very 
great  measure;  and,  I  think,  in  order  to  the  attainment  of  good  schools  and  proper 
regard  for  the  education  of  the  children  of  the  country,  school  officers  should  for  the 
time  being  be  non-political  actors,  or  not  active  in  politics.  It  does  not  deprive  the 
officer  of  the  right  to  vote,  but  it  does,  deprive  him  of  the  right  to  hold  position  or  place 
in  a  political  party,  such  as  being  a  committeeman  or  of  being  active  in  that  way.  1 
hope  it  will  be  the  pleasure  of  the  Convention,  in  the  interest  of  the  schools,  to  adopt 
this  amendment. 

The  amendment  was  rejected. 

Mr.  Blair:  I  move  to  strike  out,  beginning  in  line  12,  after  the  word  "divisions," 
the  words  down  to  and  including  the  word  "incumbent,"  in  line  15. 

Mr.  President,  I  do  not  propose  to  make  a  speech  on  this,  but  I  will  state  the 
reasons,  for  my  belief  that  the  people  of  the  counties  affected  by  this  provision  are  the 
ones  who  select  their  county  school  superintendents.  I  will  never  vote  in  the  Conven- 
tion for  a  board  of  education  or  for  the  Legislature  to  saddle  on  the  people  of  these 
counties  as  their  school  superintendents  men  who  are  objectionable  politically  and 
otherwise.  I  think  the  people  can  be  trusted  to  elect  their  county  school  superin- 
tendents.   I  submit  the  amendment  with  that  object. 

The  vote  being  taken,  resulted — ayes,  21;  noes  49. 

The  amendment  was  rejected. 

Mr.  Harrison:  Mr.  President,  I  desire  to  offer  an  amendment  by  striking  out  the 
words  "it  may  in  its  discretion  divide  the  State  into  proper  school  divisions,  and." 

I  do  not  think  the  State  Board  ought  to  have  the  power  of  dividing  the  State  up 
into  districts  and  taking  away  from  the  counties  the  various  school  superintendents,  as 
they  are  appointed  now  by  law  for  each  county.  I  think  that  matter  ought  to  be  left  to 
the  General  Assembly,  if  anybody  does  it.  I  do  not  think  a  board  composed  as  this  is 
should  have  that  power. 

As  the  law  now  is  each  county  has  a  superintendent  of  its  own  for  its  own  schools. 
If  any  body  makes  that  change,  it  ought  to  be  done  by  the  General  Assembly  of  the 
State.    It  ought  not  to  be  in  power  of  the  board. 

Mr.  Mcllwaine:  Mr.  President,  the  committee  discussed  this  matter  at  some  length, 
and  it  was  very  largely  discussed  in  Committee  of  the  Whole.  You  will  notice  that  this 
is  not  exactly  as  it  was  reported  by  the  committee  originally,  but  it  is  as  it  was  adopted 
in  Committee  of  the  Whole.  If  I  recollect  aright,  the  idea  was  that  there  were  some 
small  counties  in  the  State  which  might  desire  to  come  together,  in  order  to  get  a 
superintendent  to  whom  they  could  pay  a  salary  sufficient  to  enable  him  to  give  his  time 
to  them,  and  thus  get  a  more  efficient  officer.  I  recollect  the  point  was  made  at  the 
time,  and  some  gentlemen  of  the  committee  will  perhaps  recall  it,  that  the  Board  of 
Education  would  never  undertake,  under  any  circumstances,  to  force  two  counties  to- 
gether, but  that  the  counties  themselves  might  desire  to  come  together  to  form  a 
separate  school  division,  and  that  they  ought  to  have  authority  to  do  it.  It  seems  to 
me  it  would  cure  the  difficulty  that  is  in  the  gentleman's  mind  if  he  would  make  this 
amendment:    "It  may  in  the  discretion,  subject  to  the  action  of  the  General  Assembly." 

Mr.  Harrison:    I  am  perfectly  willing  to  accept  that,  sir. 

Mr.  Parks:  I  offer  the  following  as  an  amendment  to  the  amendment  offered  by 
the  gentleman  from  Prince  Edward:  "The  General  Assembly  shall  divide  the  State 
into  school  divisions,  to  be  composed  of  one  or  more  counties,  and  the  State  Board  of 
Education  shall,  subject  to  the  confirmation  of  the  Senate." 

Mr.  Barbour:  Mr.  President,  I  hope  the  Convention  will  permit  the  section  to  re- 
main in  the  shape  in  which  it  is  reported.  It  leaves  this  matter  in  the  hands  of  the 
State  Board  of  Education,  with  whom  we  charge  the  responsibility  of  conducting  the 
entire  educational  system  of  the  State.  It  seems  to  me  it  is  where  it  properly  belongs, 
and  that  the  section  should  be  permitted  to  stand  where  it  is. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


I8i: 


The  President:    The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Page  (Mr.  Parks)  to  the  amendment  of  the  gentleman  from  Frederick. 
The  amendment  was  rejected. 

The  President:  The  question  recurs  on  the  adoption  of  the  amendment  proposed  by 
the  gentleman  from  Frederick  (Mr.  Harrison),  as  accepted  by  the  chairman  of  the 
committee. 

Mr.  Hatton:  I  offer  the  following  amendment  to  the  amendment:  That  the  words 
'■'in  its  discretion"  be  stricken  out.  If  those  words  are  alloAved  to  remain  there  with  that 
amendment  it  creates  a  contradiction  of  terins,  because  if  they  may  appoint,  in  their 
discretion,  subject  to  the  approval  of  the  General  Assembly,  they  have  no  discretion. 
It  is  the  discretion  of  the  General  Assembly,  really. 

The  amendment  was  rejected. 

The  President:    The  ayes  and  noes  having  been  ordered  on  the  amendment  of  the 
gentleman  from  Frederick,  the  result  was  announced — ayes,  26;  noes,  42. 
The  amendment  was  repected. 

The  President:  The  gentleman  from  Craig  (Mr.  Marshall)  gave  notice  of  an 
amendment  in  the  nature  of  a  substitute. 

A  superintendent  of  schools  for  each  county,  who  shall  be  elected  by  the  qualified 
electors  of  tne  county,  and  who  shall  hold  their  office  for  a  term  of  four  years. 

The  ayes  and  noes  being  taken,  the  results  was  announced — ayes,  16;  noes,  47. 
Mr.  Marshall's  amendment  was  rejected. 

Mr.  Ayers:    I  move  to  insert  "shall"  before  "subject,"  in  line  12,  so  that  it  will 
read:    "Shall,  subject  to  the  confirmation  of  the  Senate,  appoint  all  superintendents." 
The  amendment  was  agreed  to. 

Mr.  Parks:    Mr.  President,  I  move  to  amend  by  inserting  the  following  language 
after  the  word  "divisions,"  in  line  14:    "Who  shall  hold  their  office  for  four  years." 
The  amendment  was  agreed  to. 

Mr.  Glass:  Mr.  President,  after  conference  with  the  gentleman  who  proposed  this 
section,  he  agrees  v^ith  me  it  would  be  better  to  amend  by  striking  out  the  word  "all" 
and  inserting  the  word  "one,"  in  line  13,  and  after  the  word  "for,"  in  line  14,  inserting 
the  words  "each  of,"  so  as  to  make  the  section  read: 

Shall  appoint  one  superintendent  of  public  schools  for  each  of  said  divisions. 

As  the  section  stands  the  board  might  appoint  one  or  more  superintendents  for  eacn 
of  these  divisions,  and  that  was  not  in  contemplation.  I  therefore  move  that  amend- 
ment to  tne  report. 

The  amendment  was  agreed  to. 

Mr.  Dunaway:    I  offer  the  following  as  a  substitute  for  the  whole  section: 

It  shall  appoint  and  have  power  to  remove  for  cause  upon  notice  to  the  incumbent, 
subject  to  confirmation  by  the  Senate,  a  superintendent  of  ptiblic  free  schools  for  each 
county  and  city  of  the  State. 

The  question  having  been  taken,  the  result  was  announced — ayes,  10;  noes,  58. 
Mr.  Dunaway's  amendment  was  rejected. 

The  President:    The  Secretary  will  read  the  second  paragraph  of  the  section. 

Second.  It  shall  have,  regulated  by  law,  the  management  and  investment  of  the 
school  fund. 

Mr.  Eggleston:  I  move  to  strike  it  otit,  with  a  view  of  inserting  an  independent 
section  elsewhere,  providing  that  the  superintendent  of  schools  shall  be  elected  in  some 
other  manner. 

The  motion  was  rejected. 

The  first  sub-section  was  adopted. 

The  President:    The  Secretary  will  read  the  third  sub-section  of  Section  4. 
115 — Const.  Deb. 


1818 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Third.  It  shall  have  authority  to  make  all  needful  rules  and  regulations  for  the 
management  and  conduct  of  the  public  free  schools,  which  rules  and  regulations,  when 
published  and  distributed,  shall  have  the  force  and  effect  of  law,  but  all  rules  and  regula- 
tions of  said  board  may  be  amended  or  repealed  by  the  General  Assembly,  and  when  so 
amended  or  repealed  shall  not  be  re-enacted  by  said  board. 

Sub-section  3  was  adopted. 

The  President:    The  Secretary  will  read  sub-section  4  of  Section  4. 

Fourth.  It  shall  select  text-books  and  educational  appliances  for  use  in  the  public 
Ivee  schools  of  the  State:  Provided,  that  the  school  boards  of  cities  of  a  population  of 
5,000  or  more  shall  choose  the  booKs  and  appliances  for  their  schools,  subject  to  such  rules 
and  regulations  as  the  State  Board  of  Education  shall  prescribe. 

Mr.  Portlock:  Mr.  President,  I  move  to  amend  by  adding,  in  line  34  of  sub-section 
4,  of  the  report  under  consideration,  the  word  "counties"  after  the  word  "cities,"  so 
that  it  will  read:  "Provided,  that  the  school  boards  of  cities  and  counties  of  a  popula- 
tion of  5,000  or  more  shall  choose  the  books  and  appliances  for  their  schools,  subject  to 
such  rules  and  regulations  as  the  State  E'oard  of  Education  shall  prescribe." 

I  do  not  propose  to  make  any  speech  upon  this  question  at  this  time.  I  spoke  at 
some  length  before  the  Committee  of  the  AVhole,  advocating  the  right  and  propriety  of 
giving  to  the  counties  the  same  privilege  of  selecting  their  text-books  as  you  have  con- 
ferred upon  the  cities.  The  only  object  of  the  amendment  is  that  counties  of  at  least 
5,000  inhabitants  or  more  may  be  put  upon  the  same  plane  in  the  selection  of  their 
text-books,  through  their  local  school  authorities,  as  cities  of  5,000.  If  any  gentleman  of 
the  Convention  can  demonstrate  to  me  any  reason  Avhy  cities  of  5,000  population  may, 
through  their  local  authorities,  select  their  own  text-books  and  counties  of  50,000  in- 
habitants may  not,  through  their  local  authorities,  be  ,given  the  same  rights  I  am  sure 
I  shall  be  prepared  to  vote  for  the  report  as  it  now  stands  with  all  the  discrimination 
therein  made  in  favor  of  the  cities  and  against  the  counties.  If  any  gentleman  can 
show  me  why  it  can  be  claimed,  on  behalf  of  the  cities,  that  their  local  authorities  are 
more  capable,  have  more  intelligence,  have  more  ability  to  do  this  service  than  the  local 
school  authorities  of  counties  I  shall  be  prepared  to  vote  for  the  report  as  it  came  from 
the  standing  committee;  but  so  long  as  I  am  under  the  impression  that  the  local  school 
authorities  of  the  counties  are  just  as  intelligent,  honest  and  capable  as  similar  officers 
in  the  cities  I  must  conclude  that  the  counties  should  have  the  same  rights  and  authority 
in  this  respect.  I  shall  vote  for  the  amendment  I  have  offered,  and  I  hope  the  Con- 
vention will  do  the  same.  Certainly  I  do  not  understand  how  the  delegates  in  this  Con- 
vention, representing  the  counties  upon  the  floor  of  this  body,  can  consistently  decline 
to  support  the  amendment  I  have  submitted  in  the  interest  of  the  counties. 

Mr.  Mcllwaine:  Mr.  President,  this  is  one  of  the  most  important  features  of  the 
whole  report,  and  whether  or  not  the  Convention  agrees  with  the  report  of  the  Com- 
mittee of  the  Whole  it  certainly  ought  to  consider  it  before  such  a  motion  is  taken  up. 
There  were  two  reasons  which  prevailed  upon  the  Committee  of  the  Whole,  as  well  as 
upon  the  Commiftee  on  Education,  to  present  this  fourth  sub-section  as  it  is.  The  first 
is,  that  in  the  counties  it  is  far  more  difficult  to  get  educated  talent  than  it  is  in  the 
cities.    This  is  a  lamentable  fact,  but  throughout  the  most  of  our  counties  it  is  a  fact. 

When  I  was  a  boy,  Mr.  President,  the  great  part  of  the  intelligence  and  of  the 
worth  of  Virginia  dwelt  in  the  country.  Now,  sir,  it  is  not  the  case.  There  is  a  great 
deal  of  worth  there,  but  there  is  not  a  great  deal  of  intelligence  in  our  country  sections. 
(Laughter.)  I  mean  sir,  educated  intelligence.  The  people  have  sense,  but  they  are 
not  generally  educated.  I  see  some  of  the  gentlemen  from  the  eastern  part  of  the  State 
laughing.  I  wonder  if  it  is  different  in  their  counties  from  what  it  is  in  the  central 
portions  of  the  State. 

Another  reason,  sir,  which  prevailed  was  that  the  people  in  the  counties  were  both- 
ered to  death  by  the  visits  and  the  appeals  of  book  agents.  It  was  to  protect  tiie  people 
of  the  counties  against  these  agents  that  this  action  was  taken. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTION  OF  VIRGIXIA. 


1819 


Now,  sir,  I  have  but  little  personal  knowledge  about  this  matter  myself,  and  no 
personal  interest  in  it.  I  only  w^ant  to  do  what  is  for  the  good  of  the  counties,  and  if 
this  Convention  intelligently,  with  its  eyes  open,  chooses  to  change  that  provision,, 
why  of  course  I  have  not  a  word  to  say. 

Mr.  Lindsay:  Mr.  President,  I  desire  to  offer  as  an  amendment  to  the  substitute — 
to  strike  out,  in  line  30,  from  the  word  "State"  all  that  follows,  so  that  the  section  will 
read: 

It  shall  select  text-books  and  educational  appliances  for  use  in  the  public  free 
schools  of  the  State. 

I  contend  that  the  cities  do  not  desire  the  right  there  conferrc.  and  thai  the  oppor- 
tunity for  corruption  is  just  as  great  in  the  cities  as  in  the  counties,  or  even  greater. 
My  amendment  makes  it  uniform,  and  the  same  right  ought  to  be  extended  in  regard 
to  cities  as  in  regard  to  counties. 

The  President:  Before  the  motion  can  be  put,  the  motion  of  the  gentleman  from 
Norfolk  county  (Mr.  Portlock)  is  first  in  order,  the  section  must  be  perfected  before 
motions  to  strike  out  can  be  entertained. 

The  amendment  was  rejected. 

Mr.  Portlock:  I  offer  the  following  amendment:  After  the  words  "cities  of  a 
population  of  5,000  or  more,"  in  line  32,  insert  the  words  "counties  of  a  population  of 
40,000  or  more."    I  ask  that  privilege  for  Norfolk  county. 

The  ayes  and  nays  being  taken,  the  result  was  announced — ayes,  17;  noes,  47. 

The  amendment  was  rejected. 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow,, 
Wednesday,  January  15,  1902,  at  10  o'clock  A.  M. 


WEDNESDAY,  January  15,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 

Prayer  by  Rev.  W.  R.  L.  Smith,  D.  D.,  of  Richmond. 

The  President:  The  unfinished  business  is  the  report  of  the  Committee  on  Educa- 
tion and  Public  Instruction.  When  the  Convention  adjourned  on  yesterday  the  amend- 
ment offered  by  the  gentleman  from  Albemarle  (Mr.  Lindsay)  was  pending.  The  Secre- 
tary will  read  the  amendment. 

Strike  out  after  the  word  "  State,"  in  line  30  of  Section  4,  the  rest  of  the  sub-section. 
The  words  stricken  out  are:  "Provided  that  the  school  boards  of  cuies  of  a  population  of 
5,000  or  m.ore  shall  choose  the  booKs  and  appliances  for  their  schools,  subject  to  such  rules 
and  regulations  as  the  State  Board  of  Education  shall  prescribe." 

Mr.  Pollard:  Mr.  President,  I  desire  to  call  the  attention  of  the  Convention  to  the 
reason  why  discrimination  is  made  between  the  selection  of  text-books  in  the  counties 
and  the  selection  cf  text-books  in  the  cities.  So  far  as  I  am  able  to  learn  it  was  not  the 
intention  of  the  committee  to  make  any  discrimination,  had  it  not  been  for  the  fact  that 
the  representatives  of  the  counties  declared  they  did  not  wish  the  local  school  board  to 
select  the  books,  while  the  representatives  from  the  cities,  for  the  most  part,  did  de- 
sire that  authority  be  vested  in  the  local  board.  The  representatives  from  the  cities 
have  stated,  as  a  reason  why  the  text-books  should  be  selected  by  the  local  boards,  that 
in  the  cities,  of  the  funds  contributed  to  the  public  school  system  about  four-fifths  come 
from  the  treasuries  of  the  cities;  that  by  reason  of  the  fact  that  so  much  more  is  raised 
for  public  school  purposes  in  the  cities  than  in  the  counties,  they  are  enabled  to  employ 
and  to  pay  educators  of  the  first-class,  and,  therefore,  they  believe  they  can  bring  to  the 
important  task  of  the  selection  of  text-books  in  the  cities  more  expert  knowledge  than 
could  be  brought  to  the  task  in  the  counties,  because  the  counties,  as  a  rule,  have  not 


1820  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA, 

enough  money  to  employ  the  educators  who  would  be  helpful  in  this  important  work. 

It  was  not  the  desire  of  the  committee  to  discriminate  or  make  any  invidious  dis- 
tinction between  the  counties  and  the  cities,  but,  as  I  understood,  it  was  the 
request  of  the  counties  that  this  matter  be  left,  so  far  as  they  were  concerned,  with 
the  State  Board,  while  it  was  the  desire  of  the  cities,  having  different  books  from 
the  counties,  to  select  their  own  text-books.  I  simply  want  to  make  that  explanation  of 
the  reason  for  the  distinction. 

Mr.  Lindsay:  Mr.  President,  I  shall  not  detain  the  Convention  w^ith  any  extended 
remarks  on  the  subject.  I  simply  desire  to  call  attention  to  the  evident  discrimination 
provided  in  sub-section  4.  The  representatives  of  two  cities,  certainly,  came  here  and 
asked  that  they  be  included  in  the  provision  as  applied  to  the  counties.  On  yesterday 
there  was  on  the  floor  of  the  Convention  the  superintendent  of  schools  from  the  city  I 
have  the  honor,  in  part,  to  represent.  He  has  served  twelve  years  as  school  trustee, 
and  he  said  that,  in  his  judgment,  this  would  be  an  unwise  provision  to  have  inserted  in 
the  Constitution;  that  the  school  trustees  of  cities  were  liable  to  the  same  opportunities 
to  make  mistakes;  they  were  subject-to  the  importunities  of  book  agents  and  dealers  in 
educational  appliances,  and  that  they  desired  to  be  relieved  of  them. 

As  I  take  it,  the  selection  of  text-books  and  appliances  was  left  to  the  State  Board 
because,  in  tne  judgment  of  the  committee,  the  State  Board  is  the  most  competent  body 
to  select  the  books.  It  was  not  because  one  county,  or  half  a  dozen  counties,  wanted 
the  privilege  of  selectiuig  their  text-books,  and  one  or  two  cities  did  not  want  the  privi- 
lege of  selecting  their  text-books.  I  take  it  that  the  committee  acted,  in  its  judgment, 
for  the  best  interests  of  the  schools  of  the  State.  Now,  Mr.  President,  if  it  is  a  good 
thing  for  the  counties  it  ought  to  be  equally  good  for  the  cities,  and  vice  versa,  if  it  is 
improper  to  leave  the  selection  of  the  text-books  to  the  cities  it  should  not  properly  be 
left  to  the  counties.  The  sense  of  the  Convention  was  taken  on  yesterday.  It  was  de- 
cided that  the  counties  should  not  have  the  right,  and  I  ask  that  some  uniformity  be 
maintained  in  the  matter,  and  that  we  give  to  the  board  the  right  to  select  for  both  cities 
and  counties. 

It  has  been  ascertained  that  the  school  board  was  the  proper  authority  in  this 
matter.    If  that  is  the  proper  authority  give  it  the  right  to  exercise  it  in  both  cases. 

Mr.  Mcllwaine:  Mr.  President,  on  the  very  day  that  my  appointment  as  chairman 
of  the  committee  was  announced  I  met  in  the  lobby  two  school  officials,  who  impressed  it 
upon  me  as  one  of  the  most  important  things  to  be  brought  before  the  Convention  that 
the  authorities  in  the  cities  should  be  given  the  right  to  select  their  own  text-books. 

Mr.  Meredith:  May  I  ask  the  gentleman  whether  they  were  city  trustees  or 
teachers? 

Mr.  Mcllwaine:  One  of  them  w^as  a  superintendent  of  school  and  the  other  was  a 
teacher. 

Mr.  Meredith:    In  the  cities? 

Mr.  Mcllwaine:    Yes,  sir;  in  the  cities. 

After  that  time  the  committee  had  information  from  other  cities  that  the  thing  was 
very  much  desired,  and  the  ground  on  which  it  was  put  was  that  in  the  county  schools 
the  school  terms  did  not  last  more  than  five  months,  and  were  generally  of  the  primary 
grade;  whereas  in  the  cities  the  school  terms  lasted  nine  months,  and  a  large  portion  of 
them  consisted  of  high  schools.  It  was  found  that  the  books  selected  for  the  State 
generally  were  oftentimes  not  suitable  to  many  of  the  city  schools,  and  this  was  im- 
pressed upon  us  over  and  over  again,  and  it  was,  I  think,  on  this  account  chiefly  that  the 
sub-section  now  under  discussion  was  brought  in  in  the  shape  in  which  it  is  a  present. 

Mr.  Hancock:  Mr.  President,  I  have  had  some  experience  in  this  matter,  having 
held  the  office  of  city  superintendent  of  schools,  as  well  as  the  office  of  county  superin- 
tendent of  schools,  for  a  number  of  years.  To  allow  the  local  boards  of  counties  or 
cities  to  select  their  school  books  will  destroy  uniformity  in  the  text-books  used  in  the 
public  schools  of  the  Commonwealth.  It  will  subject  these  local  boards  to  the  annoy- 
ance, the  continual  worry  and  the  persistent  and  persuasive  influences  of  book  agents  and 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  1821 

publishers  of  books.  I  hope,  therefore,  that  the  motion  to  strike  out  will  prevail  and 
that  the  State  Board  of  Education  shall  have  the  exclusive  right  to  select  text-books  for 
all  the  cities  and  counties  in  the  State.  Why  should  the  city  of  Bristol,  or  the  city  of 
Norfolk,  or  the  city  of  Richmond,  or  any  other  city  in  this  Commonwealth  have  any 
more  right  to  select  its  own  school  books  than  the  county  of  Chesterfield,  the  county 
of  Pov/hatan,  the  county  of  Greenesville  or  the  county  of  Brunswick.  Is  there  any 
more  intelligence  in  any  one  of  these  cities  than  there  is  in  the  counties  which  I  have 
named? 

I  deny  that  proposition,  and  I  call  for  proof.  Call  for  it  and  I  defy  the  gentleman 
from  Prince  Edward  (Mr.  Mclhvaine)  to  produce  the  proof  that  the  people  of  the  coun- 
ties are  not  as  intelligent  as  the  people  of  the  cities.  Will  he  deny  that?  I  do  not 
think  he  will.  Laughter). 

I  think  the  proposition,  that  it  is  unwise  for  the  counties  to  have  the  selection  ot 
their  school  books,  because  these  book  agents,  with  their  artful  designs  and  methods, 
will  im^pKoperly  influence  the  local  county  boards,  applies  with  equal  force  to  the  city 
boards.  The  cities  are  no  better  than  the  counties,  and  where  did  the  idea  come  from 
that  the  cities  ought  to  have  any  greater  advantages  than  the  countiesi.  I  represent  a 
city  and  two  counties,  and  I  think  one  of  them  is  as  good  as  the  other  and  entitled  to 
the  same  rights  in  this  Convention. 

Mr.  Cameron:  May  I  ask  the  gentleman  what  city  he  thinks  he  represents  in  the 
line  he  is  now  pursuing? 

Mr.  Hancock:  I  represent  the  city  of  Manchester,  sir.  And  if  the  gentleman  from 
Petersburg  thinks  he  represents  the  sentiment  of  the  people  of  Petersburg,  when  he 
advocates  the  selection  of  the  school  books  by  the  local  boards,  I  think  he  is  as  much 
mistaken  about  his  city  as  he  thinks  I  am  about  my  city.  I  happen  to  know  something 
about  these  people  in  Petersburg  as  well  as  he  does.  They  are  an  independent  people, 
and  they  are  in  favor  of  right  and  justice  and  equality,  and  are  not  claiming  any  special 
privileges. 

But,  leaving  aside  this  interruption,  I  come  to  this  proposition:  The  people  of  the 
State  of  Virginia,  whether  they  live  in  cities  or  live  in  counties,  are  the  same  people, 
and  are  subject  to  the  same  influences  and  to  the  same  impulses  and  to  the  same 
temptations,  and  I  protest  here  against  allowing  cities  to  have  the  right  to  select  their 
school  books.  Why  have  the  Board  of  Education,  composed  of  men  specially  qualified 
for  this  technical  work,  and  then  take  it  away  from  them  and  put  it  into  the  hands  of 
men  in  no  w^ay  fitted  for  it?  Let  the  State  Board  of  Education,  which  is  a  board  of 
suflicient  political  power  and  influence  and  of  sufficient  technical  knowledge  and  educa- 
tional qualifications  to  do  the  work  well,  select  these  text-books  for  the  public  schools, 
and  let  their  selections  apply  to  all  the  cities  and  counties  of  the  Commonwealth. 

Mr.  Mcllwaine:  Before  the  question  is  put  I  would  like  to  say  that  the  repre- 
sentative of  the  public  schools  in  Manchester  appeared  before  the  committee  and 
strongly  urged  the  clause  that  the  committee  adopted.  I  suppose  that  gentleman 
understands  the  public  sentiment  in  Manchester. 

Mr.  Meredith:  I  would  ask  the  gentleman  from  Albemarle,  who  I  understand 
made  the  motion,  to  accept  this,  amendment:  Add  after  the  word  "State"  the  words 
"exercising  such  discretion  as  it  may  see  fit  in  the  selection  of  books  suitable  for  the 
schools  in  the  cities  and  counties,  respectively." 

Mr.  Lindsay:    I  accept  that  amendment. 

Mr.  Meredith:  My  suggestion  is  to  amend  the  sub-s^ction  so  that  it  will  read, 
as  amended  and  accepted  by  the  gentleman  from  Albemarle,  as  follows:  "It  shall 
select  text-books  and  educational  appliances  for  use  in  the  public  schools  of  the  State, 
exercising  such  discrimination  as  it  may  see  fit  in  the  selection  of  books  suitable  for 
the  schools  in  the  cities  and  counties,  respectively." 

Mr.  Chairman,  the  only  reason  that  has  been  given  for  the  insertion  of  this  pro- 
viso, allowing  these  local  boards  in  the  cities  to  have  this  power,  is  the  need  of  having 
different  classes  of  books  in  the  cities  from  those  they  have  in  the  counties.    That  is 


1822  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  ynHGlNIA. 

desirable,  but  are  you  getting  at  it  in  the  right  way?  If  you  can  get  at  it  and  put  the 
same  power  in  the  State  Board  of  Education  as  to  cities  that  they  have  as  to  counties., 
I  respectfully  submit  that  will  meet  the  end  desired  and  at  the  same  time  give  the  cities 
the  protection  they  need.  I  repeat  it — the  protection  they  need.  We  need  protection 
just  as  much  as  the  counties,  if  not  more  so.  But  I  earnestly  urge  that  the  amendment 
of  the  gentleman  from  Albemarle  be  accepted.  There  can  be  no  need  of  putting  upon 
us  the  danger  of  having  our  little  local  boards  overrun  by  these  book  agents,  and  I 
respectfully  submit  that  if  the  State  Board  of  Education,  selected,  as  we  believe,  wisely, 
is  able  to  pass  upon  this  question  honestly  and  intelligently,  for  the  benefit  of  the  coun- 
ties of  this  State,  it  can  also  pass-  upon  the  question  for  the  cities,  provided  it  has 
sufficient  elasticity  to  provide  different  classes  of  books  for  the  cities  and  those  used  in 
the  counties,  on  account  of  the  difference  in  the  length  of  the  term  and  of  their  respec- 
tive needs. 

No  man  can  say  that  a  city  board  can  be  trusted  any  more  than  a  county  board. 
33very  man  will  admit  that  no  local  board  ought  to  be  trusted  about  a  matter  of  this 
kind  any  more  than  is  necessary.  If  we  are  able  to  remove  the  necessity  for  this  thing, 
by  simply  adopting  language  to  remove  any  doubt  as  to  whether  they  have  this  dis- 
cretion or  not  and  stating  in  specific  terms  they  may  have  the  discretion,  I  respectfully 
submit  we  meet  the  only  argument  that  has  been  made  for  putting  this  in  here  and 
meeting  the  danger;  and  I  repeat  it,  there  is  very  great  danger  of  having  our  boards 
overrun  and  being  made  more  or  less  purchasable  by  the  book  agents. 

I  am  a  great  believer  in  the  doctrine,  "Lead  us  not  into  temptation."  I  believe 
officials  ought  not  to  be  tempted  any  more  than  is  necessary.  We  are  here  under- 
taking to  make  the  law  of  the  land,  and  we  ought  to  recognize  the  fact  that  we  have  no 
Tight  to  put  our  public  officers  in  any  greater  danger  from  temptation  than  we  can 
avoid.  Wlien  you  undertake  to  leave  discretion  with  these  city  boards,  with  the  large 
amount  of  books  they  purchase,  you  are  subjecting  them  to  temptation.  The  larger  the 
purchase  the  greater  the  temptation  of  the  book  agents  to  attempt  to  buy  the  local 
boards.  If  a  few  books  are  to  be  bought  they  do  not  bother  themselves  about  it,  as  it 
is  not  worth  the  money  they  spend,  but  if  a  large  quantity  of  books  are  to  be  bought 
the  greater  will  be  the  inducement. 

I  want  to  say  one  other  word  and  then  I  shall  be  through.  W^hile  the  committee 
lias  seen  fit  to  get  the  best  information  they  can  in  regard  to  the  wishes  of  the  cities 
in  matters  of  this  kind,  it  seems  to  me  they  have  not  gone  to  the  real  source  of  informa- 
tion. I  think  the  representatives  upon  this  floor  should  have  been  consulted  about  a 
matter  of  this  kind,  and  not  the  school  teachers  and  the  school  boards.  A  man  will 
naturally  ask  for  power.  Those  gentlemen  are  the  very  men  who  are  knocking  here 
and  asking  that  they  have  this  power.  I  do  not  mean  to  intimate  that  they  are  asking 
it  for  an  improper  purpose,  but  it  can  be  used  for  an  improper  purpose.  Any  man 
will  desire  to  have  power  as  far  as  he  can.  It  is  very  natural  that  they  should  ask  for 
It.  If  there  is  no  necessity  for  the  fear  that  these  gentlemen  have,  that  the  school 
boards  will  not  have  sufficient  discrimination  in  selecting  a  different  class  of  books  for 
the  cities  from  those  they  will  select  for  the  counties,  we  get  rid  of  that.  There  can 
be  no  need  of  uselessly  subjecting  the  local  school  boards  to  this  danger,  and  it  will  be 
useless. 

I  respectfully  urge  the  addition  of  the  words  I  have  indicated,  making  it  clear  and 
manifest  and  explicit  that  in  regard  to  the  Sielection  of  book  for  cities  and  providing 
that  it  may  exercise  a  discretion  as  it  may  see  fit  in  regard  to  the  schools  in  the  coun- 
ties. Does  any  man  doubt  the  ability  of  the  State  board  to  select  books  for  the  cities? 
Is  there  any  man  who  will  get  up  on  this  floor  and  say  that  these  gentlemen  are  not  fit 
to  select  books  for  the  cities?  If  they  are  fit,  and  we  give  a  power  sufficiently  broad 
to  exercise  that  discrimination,  I  respectfully  submit  that  we  have  done  all  that  is 
necessary  and  we  ought  not  to  subject  these  local  boards  to  a  useless  danger.  I  earn- 
estly urge  that  that  part  of  the  section  be  stricken  out. 

Mr.  Glass:    Mr.  President,  when  this  matter  was  up  in  Committee  of  the  Whole 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIKGIXIA. 


1823 


I  supposed  the  objection  urged  by  the  gentleman  from  Richmond  was  fully  met  when 
a  proposition  was  pending  to  strike  out  of  Section  4  these  words,  "subject  to  such  rules 
and  regulations  as  the  State  Board  of  Education  shall  prescribe."  The  matter  is  left 
entirely  to  the  discretion  of  the  State  Board  of  Education.  The  State  Board  of  Educa- 
tion under  this  section  may  require  that  the  school  board  of  the  cities  shall  report  to 
the  central  board  its,  selection  of  school  books,  and  if  the  selection  is  not  agreeable  to 
the  State  board,  if  the  manner  of  the  selection,  the  method  or  any  act  connected  with 
the  selection,  is  not  agreeable  to  the  State  board,  the  State  board  lias  veto  power. 

Mr.  Meredith:  That  is  a  very  serious  question  to  me,  as  to  whether  the  rules  and 
regulations  prescribe  the  same  thing  as  being  subject  to  approval.  That  is  a  matter  of 
doubt  with  me. 

Mr.  Glass:  If  the  State  board  makes,  a  rule  or  regulation  that  these  books  shall 
be  selected  by  the  cities,  subject  to  their  approval,  it  is  certainly  given  the  authority 
here  to  make  such  rules  and  regulations  as  it  considers  necessary  for  the  management 
of  the  public  schools,  and  such  rules  and  regulations  when  made  shall  have  the  force 
and  effect  of  law. 

Mr.  Meredith:  Then  I  respectfully  submit  there  is  no  use  for  it.  If  these  local 
boards  are  to  be  subject  to  the  approval  of  the  State  Board  of  Education,  that  gives 
ample  power. 

Mr.  Glass:  I  thougkt  it  was  the  contention  of  the  gentleman  from  Richmond  that 
if  we  left  these  words  in  there,  when  it  was  proposed  to  strike  them  out,  the  section 
would  be  satisfactory  to  him,  and  as  he  represented  a  city,  I  agreed  to  and  voted  for 
leaving  tnem  in  there,  thinking  it  met  his  approval. 

Mr.  Meredith:  I  have  always  been  opposed  to  any  power  being  given  to  the  local 
board. 

]\Ir.  Glass:  I  did  not  Ivnow  that.  I  desired  to  call  the  gentleman's  attention  to 
that  fact.  And  while  I  am  on  my  feet,  Mr.  Chairman,  I  just  want  to  say  that  the  broad 
statement  that  the  cities  do  not  desire  this,  is  incorrect  so  far  as  the  city  of  Lynchburg 
is  concerned.  I  want  to  say  further,  in  justification  of  the  committee,  that  the  com- 
mittee has  embodied  in  the  Constitution  in  a  modified  form  the  present  statute  of  Vir- 
ginia. In  other  words.,  your  statute  law  now  provides  that  the  selection  shall  be  made 
by  all  cities,  because  experience  shows  that  it  is  best  that  it  should  be  done,  and 
there  is  not  one  word  of  qualification  in  the  statute  about  it;  but  as  the  section  stands 
there  is  a  very  radical  qualification,  because  by  it  the  whole  matter  is  put  within  the 
discretion  of  the  State  board. 

Mr.  Hamilton:  Mr.  Chairman  and  gentlemen  of  the  Convention,  I  hope  the  motion 
to  strike  out  will  not  prevail.  I  do  not  know  about  any  other  communties  except  my 
own.  I  know  the  right  of  the  city  s.chool  board  to  select  text-books  for  the  high  schools 
and  the  higher  grades  is  Yevj  essential  for  their  prosperity  and  welfare.  My  observa- 
tion, extending  through  twenty-five  years,  is  that  there  has  never  been  any  solicitation 
with  respect  to  school  books  or  school  apparatus  in  my  city.  I  am  aware  of  what  was 
said  by  the  gentleman  from  Richmond  (Mr.  Meredith),  who  recently  spoke  when  this 
matter  was  up  in  Committee  of  the  ^\^ole,  namely,  that  it  was  not  desirable  to  leave 
this  power  in  the  hands  of  the  local  authorities  in  Richmond.  That  is  not  my  observa- 
tion or  experience  at  my  own  home,  and  I  do  not  believe  it  is  true  of  any  other  city  in 
the  Commonwealth.  As  far  as  the  right  of  the  local  boards  in  the  county  to  select 
such  apparatus  and  books  is,  concerned,  I  have  no  opinion  except  that  I  am  guided  by 
the  expressions  of  the  gentlemen  from  the  counties,  as  I  understand  them.  So  far  as 
I  have  been  able  to  get  their  views,  and  it  has  been  somewhat  general,  they  do  not  wish 
that  power  left  in  the  local  boards.  The  cities.,  so  far  as  I  know,  with  the  exception  of 
that  of  my  friend  from  Richmond,  who  sits  before  me  (Mr.  Meredith),  do  want  that 
power  left  in  the  local  board,  certainly  for  the  higher  grades  of  schools,  and  if  you 
change  that  you  may  seriously  cripple  the  schools. 

Mr.  Robertson:    As  I  understand,  the  law  at  present  allows  that  to  be  done. 

Mr.  Hamilton:    The  law  has  always  permitted  the  school  boards  in  cities  to  select 


182-i  DEBATES  OF  THE  COXSTITUTIOl^AL  COJ^'YENTION  OF  VIRGINIA. 

all  of  thesp  .hings,  and  without  any  limitation  or  discrimination.  In  the  Committee  of 
the  Whole  I  objected  to  these  words  "subject  to  such  rules  and  regulations  as  the 
State  board  shall  prescribe."  I  thought  that  was  too  much  of  a  restriction,  but  the 
committee  adopted  it  after  proper  consideration,  I  thought,  and  I  had  nothing  more  to 
say.  I  hoped  that  the  State  board  would  not  make  such  regulations  and  restrictions 
as  would  absolutely  nullify  the  power  of  the  local  city  boards. 

I  do  not  see  that  we  have  heard  anything  different  now  from  what  we  heard  when 
we  were  discussing  this  matter  in  Committee  of  the  Whole  as  to  the  kind  of  State  Board 
of  Education  we  have.  We  had  then  exactly  the  same  kind  of  State  board'  we  have  now. 
I  do  not  doubt  those  people  are  capable  of  selecting  text-books;  but  there  are  different 
text-books  used  in  the  various  cities  of  the  Commonwealth.  In  the  higher  grades  in 
the  city  of  Lynchburg  different  text-books  are  used  from  those  used  in  the  city  of 
Richmond  or  the  city  of  Petersburg;  but  the  heads  of  these  high  schools  (and  they 
have  very  successful  and  efficient  schools  over  there^ — as  good  as  any  in  the  State,  to  the 
extent  they  go)  know  by  experience  what  books  to  use.  They  have  used  them  to 
advantage,  and  it  would  not  be  best,  in  my  judgment,  to  make  all  of  these  really  efR- 
Dient  high  schools  use  exactly  the  same  books,  when  their  experience  teaches  them  to 
[he  contrary. 

Mr.  Lindsay:  I  do  not  understand  that  it  is  contemplated  that  the  State  boards 
i\"ill  not  allow  the  exercise  of  that  right.  There  is  nothing  in  this  provision  to  indicate 
that  there  shall  be  uniformity  in  that  respect  in  the  cities  of  the  State.  It  means 
simply  that  the  State  board  shall  select  them,  rather  than  the  local  board. 

Mr.  Hamilton:  I  hope  the  gentlemen  of  the  Convention  will  not  interfere  with 
the  substantial  and  practical  right,  I  do  not  care  in  what  form  it  is,  of  city  school  boards 
to  select  text-books  for  the  higher  schools.  If  the  gentlemen  from  the  counties  will 
simply  tell  us  what  they  v/isli  in  that  respect  I  am  sure  there  is  not  a  representative 
of  the  cities  here,  with  possibly  one  or  two  exceptions,  who  will  not  be  happy  to  vote 
for  whatever  they  wish  in  that  direction. 

Mr.  President,  the  gentleman  from  Richmond  has  asked  me  if  I  thought  the  matter 
of  public  education  was  a  mere  matter  of  local  legislation  and  government.  I  think  the 
chief  objections,  if  objections  there  are — and  we  know  there  are  some  faultsi  in  every 
sj^stem — to  the  public  school  education  of  Virginia  and  of  every  other  State,  are  that  it 
is  made  to  run  too  much  and  absolutely  in  a  rut,  and  that  every  child  is  made  to  con- 
form to  a  given  size.  I  believe  in  some  variation,  according  to-  the  different  conditions 
in  different  places.  I  do  not  mean  to  say  that  the  State  Board  of  Public  Education 
would  grant  this.  I  do  not  know  whether  they  would  or  not.  I  believe  they  would, 
and  I  hope  they  would — that  is,  such  a  list  as  would  afford  a  proper  limit  of  discretion 
to  these  boards  in  the  different  places;  but  I  do  not  think  we  should  put  it  in  such  a 
shape  that  we  cannot  have  the  right  to  make  our  schools  most  etRcient. 

Mr.  Pollard:  Mr.  President,  before  the  gentleman  takes  his  seat  I  would  like  to 
correct  a  misapprehension  which  he  seems  to  entertain.  He  stated  the  city  of  Rich- 
mond seems  to  desire  that  the  selection  of  these  text-books  be  placed  with  the  State 
board.  I  want  to  say,  as  a  member  of  the  Committee  on  Education,  that  I  have  made 
it  my  duty  to  find  out  what  the  educators  of  Richmond  desire  in  the  matter,  and,  so 
far  as  I  am  able  to  learn,  they  are  unanimously  of  the  opinion  that  the  local  board  ought 
to  have  the  right  to  select  the  books. 

Mr.  Ingram:  Mr.  President,  as  representing,  in  part,  on  this  floor  the  city  of  Man- 
chester, I  desire  to  state  that,  so  far  as  I  have  heard  the  wishes  of  that  constituency 
or  community  expressed,  and  I  have  only  heard  from  the  superintendent  of  schools  in 
that  city,  the  provision  embodied  in  the  report  of  the  Educational  Committee  is  entirely 
satisfactory  to  them,  and  I  shall  give  it  my  support.  I  think  it  is  sufficiently  safe- 
guarded by  giving  the  general  board  the  right  to  prescribe  the  rules  and  regulations 
under  which  the  board  shall  select  the  books  for  the  cities. 

Mr.  Thorn:  Mr.  President,  I  trust  it  will  be  the  pleasure  of  the  Convention  to 
retain  the  provision  as  it  stands  now  in  this  fourth  section.    No  one  who  has  observed 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


1S25 


the  educational  system  of  the  State  can  fail  to  have  been  struck  with  the  special  in- 
terest taken  in  public  education  by  the  cities,  and  the  very  large  appropriation  they 
are  now  making  and  intelligently  expending  in  the  matter  of  educating  the  school 
children  of  their  respective  localities.  A  great  majority  of  the  members  of  this  Con- 
vention are  from  the  country.  They  should  determine,  and  they  have  determined, 
what  shall  be  done  in  reference  to  the  countrj'  districts.  Is  it  asking  too  much  that 
the  representatives  of  the  cities  should  be  consulted  as  to  the  wishes  of  their  con- 
stituents in  reference  to  this  matter? 

I  understand  from  the  chairman  of  the  Committee  on  Education  that  they  have 
investigated  the  sentiment  of  the  cities  on  the  subject  and  they  have  heard  a  universal 
request  coming  from  that  source  that  the  cities  be  allowed  to  control  their  schools  by 
local  agencies.  I  understand  from  the  gentleman  from  the  city  of  Richmond  (^Ir. 
Pollard),  who  has  just  taken  his  seat,  that  the  educational  authorities  of  the  city  of 
Richmond  are  in  accord  w^ith  the  educational  authorities  of  the  other  cities  in  this 
regard,  and  it  does  not  seem  to  me  too  much  to  ask  that  the  cities,  considering  their 
large  appropriation  for  this  subject,  considering  the  great  interest  they  are  taking 
in  public  education,  and  considering  the  intelligent  management  they  are  giving  to  the 
subject,  should  be  allowed  the  privilege,  which  their  educational  people  all  desire,  of 
being  allowed  to  select  the  text-books  which  are  to  be  taught  to  tlieir  own  children.  I 
earnestly  hope  the  amendment  will  not  prevail. 

Mr.  Parks:  Mr.  President,  coming  from  the  country,  I  can  state  positively  what 
the  people  desire  in  reference  to  this  matter  and  what  the  school  authorities  wish. 
Further  than  that,  having  been  associated  Avitli  the  school  system  in  the  country-,  and 
by  virtue  of  the  position  I  have  held  for  years,  being  made  familiar  with  the  pro- 
ceedings of  the  school  boards  in  the  county  and  the  caliber  of  the  men  vrho  consti- 
tute the  school  boards  in  the  country  in  the  main,  I  approve  of  the  first  clause  of  this 
section,  which  provides  that  the  State  board  shall  select  school  books  and  appliances 
for  the  country.  I  protest  against  subjecting  the  school  boards  in  the  country  to  as- 
saAilts  from  book  agents.  I  suppose  every  man  on  this  floor  is  acquainted  with  the 
persuasive  eloquence  and  the  persistent  conduct  of  book  agents. 

It  has  been  said,  sir,  that  the  test  was  made  upon  one  occasion,  and  there  was  only 
one  human  being  in  the  world  who  can  outstrip  a  book  agent,  and  that  is  an  insurance 
agent.  It  is  said  that,  in  order  to  test  the  matter,  a  book  agent  and  an  insurance  agent 
were  locked  up  in  a  room,  each  to  ply  the  other.  The  parties  returned  after  some  time 
and  found  the  book  agent  on  the  floor  in  extremis  and  the  insurance  agent  whispering 
in  his  ear,  calling  his  attention  to  what  he  had  lost  by  not  yielding  to  his  persuasive 
eloquence  and  still  insisting  that  he  should  listen  to  him,  assuring  him  that  he  was 
not  only  supplied  with  life  insurance,  but  that  he  was  armed  with  policies  of  fire  insur- 
ance, and,  as  the  book  agent  was  likely  to  go  to  a  country  where  that  would  be  needed, 
msisted  on  his  taking  out  a  policy  in  a  fire  insurance  company.  (Laughter.) 

Mr.  President,  so  far  as  the  coimty  boards  are  concerned,  these  book  agents  come 
to  a  county  and  go  around  and  see  the  superintendent  and  members  of  the  board.  If 
they  find  tliey  are  invulnerable  they  go  and  employ  the  best  lawyer  in  the  town  to  go 
before  the  school  board  and  represent  the  school  books  for  which  the  agent  is  canvassing. 
As  these  trustees  receive  no  compensation  it  is  difficult  to  get  the  best  men  alwaj's  to 
take  the  places,  and,  as  they  are  in  a  hurry  to  get  the  work  off  their  hands,  they  are 
not  in  a  position  to  meet  these  school  book  agents. 

Then.  Mr.  President,  there  is  another  thing  to  which  I  wish  to  call  attention.  It 
is  known  to  members  on  this  floor,  and  it  is  known  to  every  man,  that,  whether  right 
or  wrong,  whether  jtistly  or  unjustly,  there  is  a  feeling  of  jealousy  in  the  country 
people  to  a  greater  or  less  extent  toward  the  cities.  Xow,  why  make  a  distinction 
between  the  counties  and  the  cities  in  the  fundamental  law  of  the  land,  unless  there  be 
an  absolute  necessity  for  it?  This  goes  out,  and  people  say,  "Here,  they  will  not  let  us 
select  our  text-books,  and  yet  they  give  cities  the  right  to  select  their  text-books." 
They  consider  it  a  discrimination  that  ought  not  to  be  made.    If  there  is  an  absolute 


1826 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


necesisity  for  making  this  discrimination,  for  the  protection  of  the  rights  and  interests 
of  the  people  living  in  the  cities  and  the  people  living  in  the  counties,  I  would  vote 
for  it  heartily;  but  when  there  is  no  necessity  for  it,  and  when  the  amendment  of  the 
gentleman  from  Richmiond  places  the  cities  and  the  counties  upon  the  same  footing 
and  yet  leaves  this  matter  in  the  hands  of  the  board  which  this  Convention  has  consti- 
tuted, let  me  ask  you,  are  you  willing  to  trust  this  board  which  you  have  selected,  which 
you  consider  the  very  best  that  could  be  selected,  composed  of  men  of  learning  and  of 
comprehensive  intelligence,  to  select  the  books  for  both  the  cities  and  the  counties 
under  the  amendment  offered  by  the  gentleman  from  Richmond,  that  this  board  should 
have  an  eye  to  the  interests  of  the  schools  in  the  country  and  in  the  city? 

Certainly  that  is  all  that  is  necessary,  and  will  not  that  discrimination  be  invoked, 
and  will  it  not  be  exercised  wisely  and  discreetly?  If  the  board  sees  that  it  is  best  to 
leave  this  matter  to  the  city  boards  to  select  their  books  they  will  do  it.  They  can  do 
it  under  this  regulation,  and  at  the  same  time  there  will  be  nothing  that  will  squint 
at  any  discrimination  or  any  distinction  between  the  country  and  the  cities.  It  seems 
to  me  that  is  a  very  desirable  end.  I,  therefore,  hope  the  members  of  the  Convention 
will  support  cordially  the  amendment  offered  by  the  gentleman  from  Richmond. 

The  President:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Albemarle  (Mr.  Lindsay)  as  modified  by  the  gentleman  from  Richmond 
(Mr.  Meredith). 

The  question  having  been  taken,  the  result  was  announced — ayes,  4G;  noes,  37. 
The  amendment  was  agreed  to. 

Mr.  James  W.  Gordon:    I  offer  the  following  substitute  for  sub-section  4: 

It  shall  provide  for  the  method  of  selecting  text-books  and  educational  appliances  for 
use  in  the  public  free  schools  of  the  State. 

Mr.  President,  I  have  just  a  word  to  say  in  regard  to  that.  It  has  been  provided  in 
the  second  section  of  this  article  that  the  supervision  of  the  free  school  system  shall 
be  vested  in  the  State  Board  of  Education  which  is  therein  constituted.  It  seems  to  me 
that  the  selection  of  text-bcoks  is  a  matter  of  administration,  and  we  should  leave  tc- 
the  officers  in  whom  we  have  vested  the  public  free  school  system  the  management  of 
it.  It  may  very  well  happen,  Mr.  President,  that  in  some  counties  and  cities  of  the 
State  it  would  be  wise  to  leave  the  selection  of  these  books  and  appliances  to  local 
boa,rds.  In  other  cases  it  might  be  proper  that  the  Board  of  Education  itself  should 
exercise  that  power.  This  is  not  a  subject,  it  seems  to  me,  that  should  be  made 
inflexible  by  constitutional  provisions.  It  is  one  of  those  administrative  functions 
about  which  there  should  be  some  elasticity. 

After  the  most  extended  debate  here  we  have  constituted  this  Board  of  Education 
and  have  provided  for  what  we  believe  to  be  an  impartial,  high-minded  and  educated 
set  of  gentlemen  to  perform  the  important  duty  of  managing  the  public  free  school 
system  of  the  State.  Now,  if  we  cannot  trust  those  gentlemen  to  perform  the  function 
of  legislating  as  to  how  text-books  and  appliances  shall  be  chosen,  it  seems  to  me  it 
was  absolute  folly  for  us  to  constitute  that  board  at  all. 

There  is  just  one  other  point,  Mr.  President,  upon  which  I  desire  to  touch.  Refer- 
ence has  been  made  to  the  importunity  with  which  these  local  boards  are  besieged 
by  the  book  agents. 

Mr.  Meredith:  Do  I  understand  the  object  of  your  resolution  is  to  allow  the  State 
Board  to  select  the  text-books,  or,  if  it  shall  see  fit,  to  allow  the  county  school  boards 
to  select  tnem? 

Mr.  James  W.  Gordon:  I  wa^~^  -^t  whole  matter  of  legislation  left  in  the  hands  of 
the  State  Board  of  Education.  I  think  it  is  an  administrative  question  that  ought  to 
be  left  in  their  hands. 

I  was  about  to  say  that  if  it  should  turn  out  in  practice  that  the  selection  of  the 
books  by  the  State  Board  of  Education  is  not  a  wise  thing,  then  the  board  will  have 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


18-27 


it  in  its  power  to  change  that  method,  if  they  find  that  ihe  needs  of  Augusta  county. 
Rockingham  county  or  Accomac  county  require  that  the  boards  of  education  in  those 
counties  should  select  the  books,  then  tney  would  have  the  right  to  give  that  power. 

If  they  found  it  was  necessary  for  the  best  interests  of  the  public  free  schools  of 
Richmond  that  the  Richmond  board  should  have  that  power  they  could  give  it  to  the 
Richmond  board,  or  they  could  change  the  method  from  time  to  time  as  the  exigencies 
of  the  case  or  the  importunities  of  the  book  agents  might  dictate.  It  seems  to  me 
we  ought  to  leave  in  the  hands  of  the  board  the  power  to  legislate  upon  this  question, 
and  not  attempt  to  settle  it  in  the  Constittition  so  that  it  cannot  be  altered. 

Mr.  Wescott.  Mr.  President,  and  gentlemen  of  the  Convention,  I  shall  intrude  my- 
self upon  your  attention  for  the  briefest  possible  space.  I  rise  to  protest  against  the 
adoption  of  the  substitute  offered  by  the  gentlman  from  Richmond  (Mr.  Gordon),  and 
will  only  occupy  your  time  in  so  far  as  necessary  to  point  out  that  which  I  hope  is 
obvious  to  every  member  of  this  body. 

If  there  has  been  any  one  thing  determined  as  the  undenied  sentiment  of  this  body, 
gentlemen,  by  the  extensive  discussion  and  frequent  votes  upon  this  question,  it  is  the 
proposition  that  the  consensus  of  opinion  of  a  large  majority  of  the  members  of  this 
body  is  that  this  power  of  local  selection  of  school  books  and  appliances  in  the  counties 
should  not  be  left  to  the  local  boards;  and  it  has  been  recently  determined  to  be  the 
sence  of  this  body  that  in  the  cities  it  should  be  left  to  the  selection  of  local  boards  of 
the  cities. 

AATiat  is  the  effect  of  the  adoption  of  the  substitute  offered  by  the  gentleman  from 
Richmond  if  it  is  not  to  empower  this  State  board  to  establish  as  one  of  its  regulations 
the  provision  that  the  selection  shall  be  relegated  to  the  county  local  boards — the  very 
proposition  that  has  been  repeatedly  repudiated  by  this  body? 

The  President:  The  question  is  on  agreeing  to  the  amendment  in  the  nature  of  a 
substitute  offered  by  the  gentleman  from  Richmond  city  (Mr.  Gordon). 

Therefore,  without  detaining  yoti  longer,  gentleman,  I  do  most  earnestly  hope  that 
no  favorable  action  will  be  taken  upon  the  substitute  of  the  gentleman  from  Richmond. 

The  amendment  was  rejected. 

The  President:  The  question  recurs  on  the  adoption  of  the  fourth  sub-section 
of  Section  4. 

Sub-section  4  was  adopted. 

The  President:    The  Secretary  will  read  the  fifth  sub-section. 

Fifth  It  shall  appoint  a  board  of  directors  consisting  of  five  members,  who  shall 
serve  without  compensation,  in  which  shall  be  vested  the  management  of  the  State 
library,  and  the  appointment  of  a  librarian  and  other  employees  therefor,  stibject  to  such 
rules  and  regulations  as  the  General  Assembly  shall  prescribe. 

Mr.  Watson:  Mr.  President,  the  report  of  the  committee  does  not  provide  for  the 
control  of  the  law  library,  which  is  a  part  of  the  State  library,  but  which  has  here 
tofore  been  under  the  control  of  the  Court  of  Appeals.  I  think  it  was  an  oversight 
of  the  committee  to  have  included  that  T\''ithin  the  management  of  the  other  books  of  the 
library:  and,  assuming  that  to  be  so,  I  desire  to  offer  the  following  resolution. 

In  line  40.  after  the  word  "prescribed."  insert  the  following:  "The  Law  Library  shall 
bo  under  the  control  of  the  Court  of  Appeals." 

The  amendment  was  agreed  to. 
The  fifth  sub-section  was  adopted. 

The  President:    The  question  is  on  agreeing  to  the  adoption  of  Section  4  of  the 
report  of  the  committee,  as  amended. 
Section  4  was  adopted. 

The  President:    The  Secretary  will  read  Section  5. 


1828  DEBATES  OF  THE  CON"STITUTIO]SrAL  CONVENTION"  OF  VIRGINIA. 

Sec.  5.  Each  magisterial  district  shall  constitute  a  separate  school  district,  unless 
otherwise  provided  by  law.  In  each  school  district  there  shall  be  elected  by  the  people 
three  school  trustees,  whose  term  of  office  shall  be  four  years:  Provided,  that  in  cities 
and  towns  constituting  separate  school  districts  school  trustees  shall  be  elected  or 
appointed,  as  may  be  provided  by  law. 

Mr.  Mcliwaine:  I  desire  to  call  the  special  attention  of  the  members  of  the  Con- 
vention to  this  section.  Perhaps,  sir,  in  the  committee  I  showed  more  interest  in  this 
section  than  in  any  other  one.  There  are  two  great  evils  connected  with  the  public 
school  system  in  the  counties.  The  first  is  the  existence  in  a  large  number  of  the  coun- 
ties of  what  may  be  called  nepotism,  growing  out  of  the  method  of  appointing  the 
school  trustees.  When  they  are  appointed  they  are  generally  continued  in  their  posi- 
tions, and  in  a  large  number  of  the  counties  they  have  used  their  power  of  the  appoint- 
ment of  teachers,  so  as.  in  many  cases  to  put  incompetent  teachers  in  the  schools — their 
children,  their  nieces  and  nephews — and  at  times  their  more  remote  relations.  This 
evil  must  be  cured  if  the  public  school  system  is  to  be  efficient. 

Another  great  trouble  with  the  public  school  system  in  the  counties  is  the  multipli- 
cation of  school-houses  .  This,  I  understand,  holds  not  only  in  Eastern  Virginia,  but 
to  a  considerable  extent  in  the  Valley,  and  perhaps  in  some  of  the  mountain  counties, 
but  I  know  of  cases  where  school-houses  for  white  children  are  put  within  a  mile  or 
a  mile  and  a  half  of  each  .other.  The  effect  of  that  ia  to  multiply  the  number  of 
teachers,  and  to  diminish  the  salary  that  is  paid  tO'  them,  and  consequently  their 
efficiency.  I  know  one  place  in  my  own  county  where  there  are  two  schools  one  mile 
apart,  and  another  school  a  mile  and  a  half  from  the  first. 

In  the  olden  time  our  boys  used  to  walk  from  three  to  five  miles  to  school.  I  have 
known  young  men  whO'  have  walked  to  our  college  from  three  and  a  half  to  four  and  a 
half  miles  every  day,  and  have  been  as  regular  and  as  good  students  as  any  connected 
with  the  institution,  and  four  of  them  I  have  in  my  mind  now  who  have  graduated  and 
are  filling  places  of  extensive  usefulness.  I  believe  one  of  the  vices  of  the  common 
school  system  is  through  the  trustees  placing  schoolsi  in  order  tO'  suit  themselves,  their 
relatives  or  their  friends,  irrespective  of  the  interests  of  the  people  at  large. 

Wliat  has  the  appointment  of  trustees  to  do  with  it?  It  has  been  noticed  by  the 
gentlemen  of  the  Convention  that  I  have  never  talked  much  about  the  people.  I  believe 
myself  to  stand  on  this  floor  asi  the  representative  of  the  people,  to  do  what,  in  my 
best  judgment,  is  for  their  welfare;  and  having  done  this,  I  think  I  have  served  the 
people  well;  but,  sir,  there  are  some  things  that  the  people  can  control  far  better  than 
any  other  agency,  and  I  think  this  is  one  of  the  cases,  and  that  the  only  solution  of  the 
question  is  to  make  the  s,chool  tmstees  elective  by  the  people,  so  that  if  the  trustees 
do  not  discharge  their  duties  faithfully,  if  they  abuse  that  tnist  which  is  committed 
to  them,  they  can  be  turned  out  of  office  and  efficient  and  useful  men  put  in  their  stead. 

I  have  explained  to  you  the  ground  on  which  I  desire  to  see  this  section  passed 
and  I  will  not  detain  you  with  one  word  more. 

Mr.  Hooker:  I  move  to  amend  Section  5  by  striking  out,  in  line  3,  the  words, 
"elected  by  the  people,"  and  Siubstituting  the  words,  "selected  in  a  manner  provided 
by  law,"  and  in  line  5  of  that  section,  beginning  with  the  word  "provided,"  strike  out 
all  the  remainder  of  the  section.    The  section  would  then  read: 

Each  magisterial  district  shall  constitute  a  separate  school  district  unless  otherwise 
provided  by  law.  In  each  school  district  there  shall  be  selected  in  a  manner  provided  by 
law  three  school  trustees,  whose  term  of  office  shall  be  four  years. 

Mr.  Thornton:  I  wish  to  state  that,  being  a  member  of  the  Committee  on  Educa- 
tion, I  voted  in  that  committee  to  elect  the  school  tmstees,  but  I  did  so  with  the  under- 
standing at  the  time  that  the  matter  would  not  be  passed  upon  in  Convention  until  the 
question  of  franchise  had  been  settled  and  disposed  of.  I  wish  to  state  that,  in  the- 
condition  of  affairs  now  existing,  I  shall  vote  against  the  report  made  by  the  committee 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  TIRGIXIA. 


1829 


lor  this  reason.  I  am  informed  by  gentlemen  on  the  floor  that  in  the  present  condi- 
tion of  affairs,  although  it  is  claimed  that  the  white  people  control  absolutely  their 
local  affairs  throughout  the  State,  it  is  a  mistake,  and  that  if  this  report  is  adopted, 
as  presented  here,  there  are  a  number  of  counties  in  the  State  in  which  Vv^e  will  have 
negro  trustees.  That  is  a  condition  of  affairs  that  is  abhorrent,  and  for  that  reason 
I  believe  it  would  be  wiser  and  better  to  adopt  the  amendment  of  the  gentleman  from 
Patrick  so  as  to  adjust  the  matter  to  suit  the  different  conditions  that  exist  throughout 
the  State. 

For  that  reason  I  shall  vote  against  the  report  of  the  committee.  I  endeavored  to 
^et  the  matter  passed  by,  I  voted  that  it  might  be  passed  by,  but  the  Convention  saw- 
proper  to  refuse  to  pass  by,  and  in  the  present  condition  of  affairs,  I  believe  we  would 
be  doing  an  injustice  to  the  white  people  of  the  State  to  undertake  to  place  the  elect- 
tion  of  trustees  in  the  hands  of  the  people. 

Mr.  Keezell:  Mr.  President,  I  hope  it  will  be  the  pleasure  of  the  Convention  to 
adopt  the  amendment  of  the  gentleman  from  Patrick.  It  seems  to  me  we  ought  to  do 
this,  especially  in  view  of  the  conditions  with  wSich  we  are  faced  in  reference  to  what 
the  electorate  may  be.  If  we  were  to  adopt  either  method  here  now,  and  say  trustees 
should  be  elected  for  four  years  hy  the  people,  or  provide  that  they  should  be  appointed 
in  a  certain  way,  we  would  be  tied  fast  to  it  for  all  time,  whether  the  method  adopted 
worked  well  or  not. 

It  seems  to  me  it  would  be  wist  to  have  a  certain  amount  of  elasticity  by  leaving  this 
matter  in  the  hands  of  the  General  Assembly,  so  that  it  may  adopt,  with  all  the  lights 
before  it  and  w^hich  we  cannot  have  now,  a  provision  that  will  be  for  the  best  interests 
of  the  public  free  schools  of  the  State. 

The  position  I  occupy  in  reference  to  the  matter  is,  that  if  we  could  have  an 
election  in  the  counties  for  school  trustees  divorced  from  all  other  elections,  in  which 
simply  the  fitness  of  the  school  trustees  came  up,  then  I  would  be  in  favor  of  having  an 
election,  but  if  we  have  an  election  in  which  the  school  trustees  are  btit  a  mere  fag-end 
of  the  general  election  for  State,  county  and  district  officers,  and  all  that  sort  of  thing, 
and  the  fitness  of  the  school  trustees  is  lost  sight  of  to  a  very  great  extent,  then  I 
would  not  be  in  favor  of  electing  them.  If  we  put  in  the  Constitution  a  provision  that 
they  are  bound  to  elect  in  the  counties,  the  natural  sequence  of  it  will  be  that  they 
will  be  elected  at  the  time  of  the  four-year  elections,  when  we  are  electing  all  other 
State  and  county  ofRcers.  I  think  that  would  be  unwise.  It  seems  to  me  it  would  be 
the  part  of  wisdom  to  leave  this  matter  to  the  Legislature,  so  that  it  may  provide  for 
the  election  in  such  way  as  it  thinks  proper;  or,  if  it  wants  to  have  them  appointed,  for 
good  and  sufficient  reasons,  it  can  provide  a  proper  method  for  their  appointment, 

Mr.  Eggleston:  Mr.  President,  I  endorse  everything  that  has  been  said  by  the 
gentleman  from  Rockingham  on  this  subject,  and  will  add  that,  as  the  matter  now 
stands,  we  would  not  only  be  liable,  but  likely,  to  have  negro  school  trustees  in  a  good 
many  districts  in  the  State,  if  the  trustees  are  to  be  elected  by  the  people.  I  think 
we  certainly  ought  not  to  vote  to  elect  them  in  that  manner  until  the  franchise  matter  is 
disposed  of.  It  seems  to  me  that  what  the  gentleman  says  in  regard  to  mixing  up  these 
elections  of  school  trustees  with  the  other  elections  is  a  very  satisfactory  argument 
why  it  should  not  be  done. 

I  also  desire  to  suggest  that  the  term  of  office  ought  to  be  left  with  the  Legislature. 
As  it  is,  under  the  law  now,  each  of  the  three  trustees  is  appointed  for  three  years. 
Under  that  arrangement  one  new  trustee  goes  in  every  year,  leaving  the  majority  of  the 
board  always  of  experienced  men.  It  seems  to  me  that  is  a  wise  provision;  and  if 
the  gentleman  would  allow  an  amendment  to  fix  the  time  of  office,  I  would  suggest  the 
words  "to  be  prescribed  by  law." 

Mr.  Hooker:    I  accept  that  amendment. 

Mr.  Mcllwaine:  Mr.  President,  I  have  no  personal  objection  to  that.  I  am  one  of 
the  members  who  have  great  confidence  in  the  Legislature  of  Virginia  as  representing 


1830 


DEBATES  OE  THE  COXSTITUTIOIvrAL  CONVEITTION  OF  VlRGIJiTIA. 


the  people  of  Virginia.  I  believe  if  the  people  v/ant  this  method,  after  the  new  Con- 
stitution is  adopted,  the  Legislature  will  give  them  what  they  want. 

Mr.  Summers:  Mr.  President,  I  am  opposed  to  the  amendment.  If  there  is,  or 
ever  will  be,  in  Virginia  a  deliberative  body  that  should  be  respected,  it  is  this  body. 
I  address  this  Convention  as  the  most  sensible,  deliberative  body  that  will  ever  be 
held  in  Virginia.  I  wish  to  say  further  that  I  am  no  dodger.  If  the  fact  is  to  be  known 
that  the  people  are  to  have  no  rights  in  the  State  of  Virginia,  I  want  to  know  it.  I  have 
been  in  war  and  I  have  been  in  peace.  I  am  always  ready  to  state  my  views  and  vote 
in  accordance  with  them. 

Gentlemen,  we  have  whipped  the  white  people  over  the  heads  of  the  negroes  in 
Virginia  until  we  leave  the  Constitutional  Convention  with  an  oligarchy.  We  have 
up  to  this  point  declined  to  elect  anybody,  and  now  we  come  down  to  a  little  town- 
ship office.  Is  there  a  man  going  to  get  up  in  the  Convention  to  stop  it?  You  cannot 
satisfy  the  people  of  Virginia  by  taking  from  yourself  a  disagreeable  burden  and 
throv/ing  it  upon  an  unknown  future,  and  it  is  not  manhood  so  to  act. 

That  is  my  view,  and  that  is  the  voice  of  the  white  people  of  Virginia.  We  have 
debarred  them  of  every  right  in  Virginia  by  whipping  them  over  the  heads  of  the 
negro;  and  every  man  in  this  Convention  knows  that  there  is  no  negro  in  Virginia  who 
has  an  office,  or  if  he  wants  it,  could  get  it.  We  see  here  represented  from  the  darkest 
portion  of  Virginia  the  strongest  Democrats — no:  not  Democrats,  because  that  is  an 
abuse  of  the  term;  men  who  are  in  favor  of  robbing  the  white  men  of  Virginia  of  every 
privilege  that  is  known  to  them. 

You  cannot  fool  the  people.  You  have  granted  them  no  privilege,  and  now,  on 
the  question  of  a  little  township  officer,  come  out  like  men  and  show  a'Ou  are  in  favor  of 
disfranchising  them.  What  does  your  suffrage  mean?  We  do  not  need  any  suffrage 
here,  because  there  is  nobody  to  vote  for.  What  interest  have  we  in  the  suffrage  of 
Virginia,  if  you  even  take  the  election  of  trustees  from  the  people?  I  do  not  care  any- 
thing about  it,  because  there  is  nobody  to  elect. 

Now,  gentlemen,  come  forv\^ard  like  men  and  vote  your  sentiments  and  say  that  the 
poor  white  man  and  the  negro  shall  have  no  rights  in  Virginia,  so  that  they  may 
emigrate  to  a  richer  and  more  fertile  and  liberty-loving  soil. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Patrick  (Mr.  Hooker). 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  58;  noes,  25 — as 
follows : 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Barham,  Bouldin,  Brooke,  Brown, 
Cameron,  P.  W.  Campbell,  Carter,  Cobb,  Crismond,  Dunaway,  Eggleston,  Epes,  Fairfax, 
Fletcher,  Garnett,  Gilmore,  Glass,  James  W.  Gordon,  Gregory,  Hamilton.  Hancock,  Hardy, 
Hatton,  Hooker,  Hunton,  Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Keezell.  Kendall,  Lawson, 
Mcllwaine,  Meredith,  Miller,  Moncure,  R.  Walton  Moore,  Orr,  Parks,  Pollard,  Portlock, 
Rives,  Robertson,  Tarry,  Thom,  Thornton,  Turnbull.  Waddill,  Walker,  Watson,  Wescott, 
Wise,  AVithers,  Wysor,  Yancey  and  the  President — 58. 

Noes — Messrs.  Barbour,  Thomas  H.  Barnes,  Boaz,  Bristow,  Clarence  J.  Campbell, 
Chapman,  Davis,  Earman,  Flood,  Gillespie,  B.  T.  Gordon,  R.  L.  Gordon,  Lincoln,  Lindsay, 
Lovell,  Marshall,  Mundy,  O'Flaherty,  Pedigo,  Phillips,  Quaries,  Richmond,  Stuart,  Sum- 
mers and  Walter — 25. 

The  amendment  was  agreed  to. 

Mr.  Mcllwaine:    I  move  that  Section  5  of  the  report  be  adopted. 

Section  5  v/as  adopted. 

Mr.  Meredith:    I  offer  the  following: 

The  General  Assembly  shall  have  the  power  at  any  time  after  the  expiration  of  the 
first  term  of  the  Superintendent  of  Public  Instruction  under  this  Constitution  to  require, 
by  a  vote  of  two-thirds  of  the  members  elected  to  each  house  that  such  officer  shall  be 
elected  by  the  State  Board  of  Education. 


JEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1831 


Mr.  President,  I  have  no  apologA^  to  make  for  my  persistency  in  this  matter.  I 
believe  the  importance  of  the  subject  is  a  sufficient  justification;  but  I  am  aware  that 
this  matter  has  been  very  thoroughly  discussed,  and  I  shall  not  detain  the  Convention 
in  discussing  the  matter  except  to  call  attention  to  the  difference  between  the  proposi- 
tion as  now  made  and  that  which  has  been  made. 

If  we  refuse  to  pass  this  the  hands  of  the  General  Assembly  are  tied  absolutely 
as  to  the  manner  of  the  selection  of  a  Superintendent  of  Public  Instruction.  Y\e  cannot 
get  away  from  it  except  by  a  constitutional  amendment.  It  is  a  new  matter  with  us.  It 
may  be  a  very  dangerous  and  injurious  matter  with  us.  We  simply  propose  by  this 
amendment  that  it  may  be  put  in  the  hands  of  the  Legislature  to  make  a  change  if 
it  shall  see  fit.  and  we  require  a  two-thirds  vote  upon  that  proposition.  If  you  have 
confidence  in  the  Legislature  as  the  representatives  of  the  people,  it  does  seem  to  me 
you  can  at  least  put  that  pov\-er  in  it  to  allow  it  to  establish,  by  a  two-thirds  vote,  as  to 
whether  this  thing  is  an  evil  or  not.  That  is  the  whole  proposition.  I  adopt  the 
language  of  the  gentleman  from  Rockingham  (Mr.  Keezeil)  when  he  was  discussing 
just  now  the  election  of  school  trustees.  I  do  not  doubt  you  feel  guilty.  That  is 
evidenced  by  your  rising  so  promply.  (Laughter.) 

I  say  I  Avill  adopt  the  language  of  the  gentleman  from  Rockingham,  in  discussing 
the  question  of  the  election  of  trustees,  that  it  is  a  very  dangerous  thing  to  put  in  the 
Constitution  specifically  how  they  shall  be  elected,  but  that  there  ought  to  be  left  to  the 
Legislature  some  power  to  change  the  method  of  election  if  it  shall  see  fit. 

:\Ir.  Keezeil:  I  simply  wish  to  ask  the  gentleman  whether  or  not  he  v^ould  be 
willing  to  allow  the  Legislature  to  revise  and  remodel  the  whole  board  if  it  should 
prove  unsatisfactory? 

Mr.  Meredith:    I  unhesitatingly  say  I  would  not. 

There  is  no  inconsistency  in  saying  that  under  the  Constitution  the  superintendent 
shall  be  elected  by  the  people,  with  the  proviso  that  if,  after  the  expfration  of  the  first 
term  of  office  of  superintendent,  the  General  Assembly,  by  a  two-thirds  vo"e,  shall  say 
that  is  unwise  and  shall  remedy  it  by  requiring  him  to  be  elected  by  the  board. 

I  wish  to  ask  the  gentlemen  whether  they  are  prepared  to  say  they  are  perfectly 
certain  that  the  selection  of  Superintendent  of  Public  Instruction  by  the  people  is  a 
wise  measure,  or  whether  it  is  not  a  test  matter — whether  we  are  not  simply  trj'ing  to 
see  whether  it  is  wise.  If  they  are  at  all  doubtful  on  a  matter  of  that  kind — and  it 
does  seem  to  me  a  man  must  have  some  doubt  about  it — they  must  leave  some  loophole 
by  which  to  escape,  and  at  the  same  time  throw  around  it  such  safeguards  as  will 
prevent  the  overturning  of  this  provision,  imless  there  is  some  expression  of  the  people 
that  would  seem  decisive  on  it.  That  safeguard  is  given  by  requiring  that  there  shall 
be  a  two-thirds  vote  of  the  General  Assembly. 

Mr.  Keezeil:  Mr.  President,  I  desire  to  knov/  why  it  is  the  gentleman  insists 
that  he  shall  apply  his  remedy  only  to  the  Superintendent  of  Public  Instruction,  who 
is  to  be  elected  by  the  people,  and  is  not  willing  to  let  his  amendment  apply  to  the 
representatives  of  these  higher  institutions,  who  are  elected  in  a  way  not  subject  to 
the  revision  of  the  people  at  all. 

Mr.  Meredith:  I  am  influenced  by  exactly  the  reason  that  induced  the  gentleman 
from  Rockingham  to  vote  for  the  amendment  offered  by  the  gentleman  from  Patrick 
(Mr.  Hooker)  as  to  the  selection  of  school  trustees.  It  is  a  political  election  of  which 
I  am  afraid.  Th^t  is  what  moves  3^011  and  that  is  what  moves  me.  I  fear  this  thing 
may  get  into  the  hands  of  some  man  who  wants  it  for  the  office  and  the  salary  attached 
to  it;  and  the  same  thing  that  moves  you  to  vote  that  the  school  trustees  should  not 
be  elected  by  the  people,  who  know  personally  every  one  of  ^Ir.em.  nromnts  me  to  say 
that  the  people  of  the  State  of  Virginia  ought  not  to  be  required  to  select  a  Superin- 
tendent of  Public  Instruction — a  man  of  whom  they  perhaps  never  heard  in  their  lives 
The  danger  is  greater  in  regard  to  the  Superintendent  of  Public  Instruction  than  it  is 
in  regard  to  school  trustees.    I  ask  that  you  give  to  the  people  of  Virginia  an  oppor- 


1832  DEBATES  OF  THE  CON'STITUTIOXAL  COis'YEXTION  OF  VIRGINIA. 

tunity  to  escape  from  this  evil,  if  it  be  an  evil,  and  that  that  provision  shall  be  ex- 
pressed in  Siiich  a  way  that  you  may  feel  certain  as  to  the  evil  of  it  by  requiring  a 
two-thirds  vote  of  the  Legislature  to  correct  it. 

Mr.  Flood:  Does  the  gentleman  think  that  would  be  a  good  provision  in  reference 
to  the  county  courts,  if  after  four  years  the  court  system  was  not  satisfactory,  the 
Legislature  by  a  two-thirds  majority  could  re-establish  it?  I  mean  the  court  system 
established  by  the  Constitution.  If  it  is  not  satisfactory,  do  you  think  the  Legislature 
should  have  the  authority,  by  a  two-thirds  vote,  to  re-establish  the  county  court  system? 

Mr.  Meredith:  I  have  a  very  high  regard  for  the  intelligence  of  the  gentleman 
from  Appomattox.  It  seems  to  me  if  he  heard  my  reply  to  the  gentleman  from  Rock- 
ingham (Mr.  Keezell)  he  would  not  have  asked  the  question.  One  is  as  to  the  forma- 
tion of  a  judicial  system.    The  other  is  a  question  of  a  political  election. 

Mr.  Flood:    I  did  not  know  the  question  had  been  asked  before. 

Mr.  Meredith:  Yes,  sir;  that  question  was  asked  me,  not  as  to  that,  but  as  to  the 
constitution  of  the  board.  What  I  am  afraid  of  is  the  same  thing  that  moved  these 
gentlemen  just  a  few  moments  ago  to  accept  the  amendment  of  the  gentleman  from 
Patrick — a  very  wise  suggestion — to  put  in  there  some  protection  if  this  thing  should 
prove  to  be  evil.  Yoii  are  stronger  in  regard  to  the  Superintendent  of  Public  Instruc- 
tion than  you  are  as  to  school  trustees.  You  start  out  v/ith  the  principle  that  he  shall 
"be  elected  by  the  people.  That  is  determined.  All  I  ask  is  that  you  will  have  some 
loophole  of  escape  if  you  find  it  is  an  evil,  if  it  becomes  simply  a  political  football;  and 
I  ask  all  the  gentlemen  not  to  be  influenced  by  this  thing  as  to  the  constitution  of  that 
iDoard.  That  board  has  been  constituted  by  the  Convention,  and  it  is  so  constituted 
that,  I  respectfully  submit,  the  danger  of  which  gentlemen  have  spoken,  of  it  being 
independent  of  the  people,  does  not  exist  with  one  county  and  one  city  superintendent 
with  the  Governor  and  Attorney-General  on  that  board,  and  then  three  men  to  be 
selected  from  the  suggestions  made  by  the  board  of  visitors  or  boards  of  trustees  of 
the  different  educational  institutions. 

I  simply  urge  that  we  have  an  opportunity  to  get  rid  of  this  thing  if  it  shall  be 
required.  I  ask,  gentlemen,  if  I  have  not,  in  this  amendment,  given  the  amplest  pro 
tection  by  requiring  that  that  thing  shall  not  be  done  except  by  a  two-thirds  vote  of 
the  members  elected  to  each  house?  It  seems  to  me  we  have  all  the  safeguards  and 
at  the  same  time  an  opportunity  of  escape  from  what  may  be  an  evil. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Richmond  city  (Mr.  Meredith). 

Mr.  R.  Walton  Moore:  On  this  question  I  am  paired  with  the  gentleman  from 
IS^ottoway  (Mr.  Watson).    If  he  were  present  he  would  vote  yea  and  I  should  vote  nay. 

The  question  having  been  taken  the  result  was^  announced,  ayes,  40;  noes,  43,  a« 
follows: 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Barbour,  Thomas  H.  Barnes,  Brooke, 
Cameron,  Carter,  Chapman,  Cobb,  Crismond,  Epes,  Fairfax,  Gilmore,  Glass,  James  W. 
Gordon,  Hamilton,  Hardy,  Hatton,  Hunton,  Ingram,  Claggett  B.  Jones,  Kendall,  Lawson, 
Lincoln.  Mcllwaine,  Meredith,  Orr,  Pollard,  Portlock,  Rives,  Robertson,  Thom,  Thornton, 
Turnbull,  Walker,  Wescott,  Wise,  Wysor  and  the  President — 40. 

Noes — Messrs.  Barham,  Manly  H.  B'arnes,  Blair,  Boaz,  Bouldin,  Bristow,  Brown, 
Clarence  J.  Campbell,  P.  W.  Campbell,  Davis,  Dunaway,  Earman,  Eggleston,  Fletcher, 
Flood,  Garnett,  Gillespie,  B.  T.  Gordon,  R.  L.  Gordon,  Gregory,  Hancock,  Hooker,  G.  W. 
Jones,  Keezeil,  Lindsay,  Lovell,  Marshall,  Miller,  Moncure,  Mundy,  O^Flaherty,  Parks. 
Pedigo,  Phillips,  Quarles,  Richmond,  Stuart,  Summers,  Tarry,  Waddill,  Walter,  Withers 
and  Yancey — 43. 

The  amendment  was  rejected. 
Section  6  was  then  read: 

Sec.  6.  Tne  General  Assembly  shall  set  apart,  as  a  permanent  and  perpetual  literary 
fund,  the  present  literary  funds  of  the  Stace;  the  proceeds  of  all  public  lands  donated  by 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


1S33 


Congress  for  public  free  school  purposes;  of  all  escheated  property;  of  all  waste  and  un- 
appropriated lands;  of  all  property  accruing  to  tne  State  by  forfeiture,  and  all  fines  col- 
lected for  offenses  committed  against  the  State,  and  such  other  sums  as  the  General 
Assembly  may  appropriate. 

Mr.  Turnbull:  I  move  to  strike  out  of  that  section,  in  lines  6  and  7,  the  words 
"and  all  fines  for  offences  committed  against  the  State."' 

Mr.  President,  I  wish  to  say  that  my  reason  for  offering  that  amendment  is  this: 
One  of  the  great  expenses  of  the  State  is  that  required  in  prosecuting  criminals,  in 
order  to  preserve  the  integrity  of  the  State  as  well  as  to  protect  the  homes  of  the 
citizens.  The  position  I  take  in  reference  to  the  matter  is  that  the  fines  collected 
from  that  source,  which  are  the  result  of  these  prosecutions,  should  go  to  reimburse 
the  State  for  the  amount  paid  out  in  the  shape  of  costs  in  these  prosecutions,  and 
that  that  fund,  coming  in  the  shape  of  fines,  should  not  be  diverted  in  this  way  and 
applied  and  invested  permanently  as  a  school  fund,  the  interest  upon  which  only  is 
applied  to  the  support  of  the  public  schools.  In  other  words,  in  a  nutshell  we  have 
this  kind  of  business  pro'position :  Twenty-five  thousand  dollars,  which  is  the  amount 
of  fines  collected  generally  in  each  year,  shall  not  be  applied  to  the  support  of  the 
public  schools,  but  shall  be  invested  at  a  rate  of  interest  of  three  per  cent.,  and  the 
interest  only  applied  to  the  support  of  the  public  schools.  If  that  kind  of  business 
proposition  were  submitted  to  any  sort  of  business  man  wotild  he  accept  it  for  a 
minute?  He  would  not.  There  is  no  question  about  the  fact  that  the  State  of  Virginia 
has  made  up  its  mind,  properly,  to  support  the  public  schools.  Then,  I  ask  what  reason 
is  there  that  a  part  of  the  funds  which  should  go  to  reimburse  the  State  for  criminal 
expenses  should  be  invested  at  three  per  cent?  In  other  words,  why  should  S2.5.000 
a  year  of  my  money  be  invested  at  three  per  cent?  The  proposition  that  is  put  to  the 
people  of  the  State  is  that  S2.5,000  of  their  money  shall  be  taken  out  of  their  pockets 
each  year,  by  way  of  taxation,  and  invested  at  three  per  cent.,  and  the  three  per  cent, 
applied  to  the  support  of  the  public  schools.    I  say  that  is  wrong. 

I  hope  the  members  of  the  Convention  will  think  about  that  as  a  btisiness  proposi- 
tion. Ask  yourselves  the  question,  gentlemen,  how  many  of  your  constituents  want 
■S25.000  of  their  money  invested  every  year,  and  the  interest  at  three  per  cent,  to  go 
to  the  support  of  the  public  free  schools,  when  they  have  made  up  their  minds  to  be 
taxed  sufficiently  to  support  the  public  free  schools  without  having  this  fund  applied 
in  that  way? 

I  do  hope  the  Convention  will  adopt  the  amendment  proposed  by  me,  for  the 
reason  that  it  is  not  going  to  injure  the  public  schools.  I  am  as  much  in  faA'or  of  the 
public  schools  as  any  man  in  Virginia:  but  when  you  raise  a  fund  for  the  public  school 
system  I  want  it  to  be  a  fimd  not  diverted  from  some  other  proper  source,  but  a  fund 
that  is  put  down  for  that  purpose.  To  take  this  money  that  comes  in  the  shape  of 
fines  and  apply  the  interest  on  it  at  three  per  cent,  to  the  public  schools  is  wrong, 
because  that  amount  ought  to  be  reimbursed  to  the  State  for  the  criminal  expenses 
incurred  in  prosecuting  criminals. 

The  President:  The  question  is  on  the  amendment  proposed  by  the  gentleman 
from  Brtmswick  Olv.  Turnbull). 

The  result  was  announced — ayes.  :34:  noes  40. 

The  amendment  was  rejected. 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  Section  6  of  the 
report. 

Section  G  was  adopted. 

The  President:    The  Secretary  will  read  Section  7. 

Sec.  7.  The  General  Assembly  shall  apply  the  annual  interest  on  the  literary  fund; 
that  portion  of  the  capitation  tax  provided  for  in  the  Constitution  to  be  paid  into  the  State 
treasury,  and  an  annual  tax  on  property  of  not  less  than  one  nor  more  than  five  mills  on 
the  dollar  to  the  public  free  schools  of  the  primary  and  grammar  grades,  for  the  equal 


116— Const.  Deb. 


1834  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.. 

benefit  of  all  of  the  people  of  the  State,  to  be  apportioned  on  a  oasis  of  school  population; 
the  number  of  children  between  the  ages  of  seven  and  twenty  years  in  each  school  district 
being  the  basis  of  such  apportionment.  Provision  shall  be  made  to  supply  children  at- 
tending the  public  free  schools  with  necessary  text-books  in  cases  where  the  parent  or 
guardian  is  unable  by  reason  of  poverty,  to  furnish  them. 

Mr.  Keezell:    I  offer  the  following  amendment  to  that  section: 

Add  after  the  word  "apportionment,"  in  line  10,  the  following:  "Provided,  that  incase 
the  subjects  of  State  taxation  shall  be  made  separate  from  the  subjects  of  city  and  county 
taxation,  the  General  Assembly  may  otherwise  provide  for  a  fixed  appropriation  of  State 
revenue  to  the  support  of  the  public  schools  not  less  than  that  provided  in  this  section." 

Mr.  President,  this  amendment  is  offered  not  in  any  way  to  effect  the  amount  of 
money  that  is  now  set  apart  by  the  Constitution  for  the  public  free  schools,  but  the 
Committee  on  Taxation  and  Finance  has  investigated  and  discussed  during  the  six  or 
seven  months  we  have  been  in  session  the  feasibility  of  separating  the  subjects  of 
taxation  on  which  the  State  shall  receive  revenue  from  those  subjects  on  which  the 
cities  and  counties  shall  derive  their  revenue. 

I,  perhaps,  will  betray  no  secret  if  I  say  that  the  Committee  on  Taxation  and 
Finance  will  very  likely  not  report  in  favor  of  a  proposition  of  this  sort;  not  that  they 
do  not  thoroughly  indorse  the  idea — at  least,  that  is  my  understanding — but  because  at 
the  present  time  it  is  not  regarded  as  possible  to  do  so  in  fairness  to  all  sections  and 
possible  to  separate  the  sources  of  revenue  for  the  State  from  the  sources  of  revenue 
for  cities  and  counties.  At  some  future  day,  and  I  hope  in  the  very  far  distant  future, 
it.  may  be  provided  for  cities  and  counties  in  such  a  way  that  real  estate  and  personal 
property  may  be  relieved  from  State  taxation,  and  let  the  revenue  necessary  for  the 
State  government  be  derived  from  other  sources  which  dO'  not  depend  upon  the  unequal 
assessment  to  which  real  estate  and  personal  property  are  subject. 

We  all  recognize  that,  if  we  were  able  to  do  this  now,  we  w^ould  settle  this  vexed 
question  about  the  inequality  of  assessment  of  real  estate  and  personal  property  in 
the  various  sections  of  the  Commonwealth,  and  do  away  with  any  necessity  that  may 
be  suggested  by  anybody  for  a  board  of  equalization,  or  anything  of  that  kind. 

My  amendment  simply  provides  that  if  at  some  future  day  it  shall  be  deemed 
feasible  by  the  General  Assembly  to  divide  the  subjects  of  taxation,  then  we  will 
not  be  prevented  from  doing  it  by  the  fact  that  the  Constitution  provides  that  we  shall 
set  aside  not  less  than  one  nor  more  than  five  mills  of  the  tax  upon  real  estate  and 
personal  property  to  the  public  free  school  of  the  State,  but  that  an  amount  equal  to 
this  sum  may  be  provided  from  some  other  source  for  them. 

Gentlemen  will  have  noticed  within  the  alst  few  days,  certainly  within  the  last 
week,  that  the  incoming  Governor  of  Ohio,  Governor  Nash,  has  recommended  to  the 
Ohio  Legislature  the  doing  of  the  very  thing  which  the  Finance  Committee  has  had  in 
contemplation— the  separation  of  the  sources  of  State  and  city  and  county  taxation, 
and  the  relieving  of  real  estate  and  personal  property  from  any  State  tax.  My  amend- 
ment simply  meets  that  contingency,  if  it  should  ever  arise,  without  the  necessity  of 
having  to  have  a  constitutional  amendment. 

(At  this  point  Mr.  Ajers  took  the  chair  as  Presiding  officer.) 

The  Presiding  Officer:    The  question  is  on  agreeing  to  the  amendment  offered  by 
the  gentleman  from  Rockingham  (Mr.  Keezell). 
The  amendment  was  agreed  to. 

Mr.  O'Flaherty:  I  move  to  amend,  in  line  9,  by  inserting  "one"  after  the  word 
**twenty,"  so  as  to  read: 

The  number  of  children  between  the  ages  of  seven  and  twenty-one  years  in  each  school 
district  being  the  basis  of  such  apportionment. 

Mr.  President,  I  understand  that  has  been  the  rule  heretofore.    The  present  pro- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIRGINIA. 


1835 


vision  cuts  down  the  apportionment  in  a  way  that  affects  some  of  the  rural  districts. 
Oftentimes  I  find  that  young  men  desire  to  get  started  in  the  public  schools  late  in  life 
and  they  ought  to  be  permitted  to  attend  school.  Those  last  years,  are  the  most  im- 
portant to  them.  No  good  reason  has  been  given  me  why  the  age  was  cut  down. 
If  there  is  any  reason  why  it  snould  be  cut  down  I  have  no  objection;  but  it  does  seem 
to  me  that  the  law  should  remain  as  it  is  now  and  that  the  apportionment  should  be 
fixed  on  that  basis. 

Mr.  Mcllwaine:  Mr.  President,  there  was  what  appeared  to  the  committee  to  be 
a  good  reason  for  that  provision.  There  are  very  few  persons  of  twentj'-one  years  of 
age  who  attend  the  primary  and  grammar  schools,  and  those  who  do  are  generally 
more  of  an  incubus  on  the  school  than  a  benefit  to  themselves.  Again,  it  makes  it 
appear  that  there  are  a  great  many  more  of  a  school  age  than  there  really  are,  those 
of  twenty-one  years  of  age  being  numbered  in  the  school  population.  I  do  not  think  it 
works  any  hardship  anywhere,  and  I  hope  it  will  be  left  to  stand  as  it  it. 

Mr.  O'Flaherty:  I  desire  to  ask  the  gentleman  what  difference  it  makes  if  it  does 
appear  in  the  waj'  he  suggests.    The  money  goes  to  the  people  anyhow. 

Mr.  Mcllwaine:  The  difiiculty  is  in  having  an  immense  number  of  persons  of 
school  age  absent  from  the  school  house  and  so  few  in  course  of  education. 

The  amendment  was  rejected. 

Mr.  Mcllwaine:    I  move  the  adoption  of  Section  7. 

Section  7  was  adopted. 

Section  8  was  read  and  adopted. 

The  Presiding  Oflicer:    The  Secretary  will  read  Section  9  of  the  report. 

Sec.  9.  The  General  Assembly  may  provide  for  the  compulsory  education  of  children 
between  the  ages  of  eight  and  thirteen  years,  except  such  as  are  weak  in  body  and  mind, 
or  can  read  and  write,  or  are  attending  private  schools,  or  that  are  excused  for  cause  by 
the  district  school  trustees. 

INIr.  Garnett:    I  move  to  strike  the  section  out. 

Mr.  Mcllwaine:  ^Mr.  President,  I  hope  the  Convention  will  not  strike  out  the 
section.  A  provision  like  this  is  embraced  in  every  Constitution,  so  far  as.  I  know,  in 
the  United  States.  Thirty-two  of  the  States  in  the  Union,  and  every  European  state, 
so  far  as  I  am  informed,  have  adopted  in  their  Constitution  compulsory  education.  The 
only  Southern  States  that  have  adopted  compulsory  education  are  Kentucky  and  West 
Virginia,  but  all  the  Northern  States  have  adopted  it.  This  section  does  not  adopt 
it,  but  simply  puts  it  into  the  hands  of  the  General  Assembly  to  provide  compulsory 
education  if  it  sees  fit  to  do  so. 

I  wish  to  state,  ]\Ir.  President,  that  I  have  had  a  considerable  number  of  letters 
on  this  subject  from  gentlemen  who  are  very  much  interested  in  it.  I  made  a  little 
speech  on  the  subject  when  the  matter  was  before  the  Convention  before,  and  I  dislike 
very  much  to  repeat  myself  or  to  take  up  one  moment  of  the  time  of  the  Convention, 
but  I  am  sure  it  will  be  a  mistake  not  to  leave  this  power  in  the  hands  of  the  General 
Assembly. 

Mr.  O'Flahertv:  AVould  not  the  effect  of  this  be  to  compel  us  to  open  schools  in 
districts  where  we  would  not  have  to  open  them  were  it  not  for  this  provision  of  com- 
pulsory education,  in  districts  where  there  are  none  but  negroes,  and  compel  them  to 
be  educated  at  the  expense  of  the  white  man? 

IMr.  Mcllwaine:    That  is  a  question  for  the  General  Assembly  to  decide. 

Mr.  Bouldin:  Mr.  President,  I  hope  it  will  be  the  pleasure  of  this  body  to  strike 
out  this  section.  I  think,  sir,  the  word  "may"  must  be  construed  here  as  in  public 
statues  as  meaning  "shall"  and  that  there  will  be  no  discretion  left  in  the  Legislature, 
but  it  will  be  compelled  to  provide  for  compulsory  education. 

Mr.  Glass:  I  should  like  to  call  my  friend's  attention  to  the  fact  that  in  the 
present  Constitution  we  have  this  requirement:    "The  General  Assembly  may  enact 


1836 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


laws  to  prevent  parents  and  guardians  from  allowing  their  children  and  wards  to  grow 
up  in  ignorance,"  and  that  has  never  been  construed  as  mandatory  upon  the  General 
Assembly. 

Mr.  Bouldin:  Very  fortunately  it  has  never  been  acted  on  at  all,  and,  therefore, 
never  construed,  so  far  ts  I  know. 

Mr.  Barbour:  Suppose  the  General  Assembly  would  not  act  on  it?  How  can  you 
compel  them  to  do  so? 

Mr.  Bouldin:  I  suppose  that  if  they  should  refuse  to  act  we  could  not 
compel  them.  I  do  not  think,  however,  we  should  load  the  Constitution  with 
bad  provisions,  the  only  security  from  the  operation  of  which  is  the  fact  that 
the  Legislature  cannot  be  compelled  to  adopt  them,  if  it  refuses  so  to  do.  I 
understand  it  to  be  a  recognized  rule  of  construction  that  the  word  "may"  used 
in  public  provisions  like  this  means  "shall,"  and  if  the  General  Assembly  complies 
with  the  mandate  of  the  Constilution,  which  I  believe  it  always,  will  do,  there  will  be  no 
means  by  which  that  body  can  escape  providing  for  compulsory  education  if  this 
section  is  adopted.  The  people  of  the  State  do  not  want  interference  with  their 
domestic  matters;  they  do  not  wish  the  education  of  their  children  to  be  controlled 
and  directed  by  the  officers  of  the  government.  There  is  too  much  paternalism  in  the 
proposed  system;  it  may  suit  the  autocratic  governments  of  Europe,  but  is  wholly 
inconsistent  with  the  spirit  of  the  people  of  Virginia.  We  can  safely  leave  to  the 
parents  the  control  and  direction  of  the  education  of  their  children.  I  trust,  Mr. 
President,  that  the  provision  will  be  stricken  out. 

Mr.  Thorn:  Is  there  anything  in  this  article  of  the  Constitution,  as  proposed, 
to  prevent  the  General  Assembly  from  exercising  that  power  if  it  should  see  fit,  with- 
out such  a  constitutional  provision? 

Mr.  Bouldin:  I  think  not,  sir,  but  I  do  not  think  we  ought  to  invite  them  to  do 
it  by  putting  it  in  the  Constitution  or  making  it  mandatory  upon  them  so  to  do. 

Mr.  Thornton:  I  agree  with  the  gentleman,  but  I  wish  to  ask  him  whether,  if  the 
latter  part  of  the  language  in  reference  to  a  pending  private  school  were  not  in  the 
Constitution,  the  Legislature  might  even  require  children  attending  private  schools 
to  attend  the  public  schools?  I  am  with  you.  I  am  opposed  to  putting  in  any  of  it 
except  the  fact  that  it  restricts  the  Legislature,  which,  without  restriction,  might  do 
what  I  have  suggested.  I  am  asking  for  information.  I  agree  with  you  generally,  but 
I  believe  that  restriction  will  have  a  tendency  to  prevent  the  Legislature  from  requiring 
all  children  to  attend  these  schools  which  otherwise  they  might  do. 

Mr.  Bouldin:  I  think,  sir,  the  only  redeeming  feature  in  the  section  is  that  it  is 
limited  to  a  comparatively  small  class  of  children;  but  I  want  to  take  the  hands  of 
the  government  off  those  children  and  leave  entirely  to  their  parents  the  matter  of 
looking  after  their  education.  I  think  that  dut3^  can  be  safely  entrusted  to  them,  and 
that  our  people  have  not  descended  to  that  depth  that  they  cannot  be  trusted  with  the 
direction  of  the  education  of  their  children. 

It  seems  to  me,  Mr.  President,  it  is  best  for  this  body  to  leave  these  matters  to  the 
parents  themselves  and  not  engraft  upon  the  constitution  a  measure  that  will  authorize 
or  suggest  to  the  Legislature  to  provide  for  compulsory  education.  The  people  of  the 
State  are  averse  to  compulsory  education.  They  do  not  like  the  idea  of  having  their 
family  affairs  controlled  in  this  way;  and  I  believe  there  are  a  few,  if  any,  provisions 
of  the  proposed  Constitution  that  will  meet  with  less  favor  at  the  hands  of  the  people 
than  this  one,  providing  for  compulsory  education. 

Mr.  Parks:  Mr.  President,  I  rise  to  a  parliamentary  inquiry.  The  amendment 
as  I  understand  it,  is  to  strike  out  that  section.  As  I  understood  the  ruling  of  the 
Chair  heretofore,  where  a  motion  to  strike  out  is  made  and  carried  there  can  be  no 
amendment  offered  to  the  section  after  that.  That  being  the  ruling,  I  would  ask  if  it 
is  in  order  now  to  offer  an  amendment  which  would  perhaps  obviate  the  dliRculty?  I 
am  frank  to  say  I  am  in  favor  of  striking  it  out  entirely,  but  if  no  amendment  is  offered 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1837 


now,  and  the  motion  is  lost,  then  there  can  be  no  amendment,  and  I  desire  to  offer  an 
amendment  now,  if  it  is  in  order. 

The  Presiding  Officer:  The  question  is  on  the  amendment  offered  by  the  gentle- 
man from  Page  (Mr.  Parks),  which  the  Secretary  will  read. 

Insert  after  the  word  "may,"  in  line  4,  the  words,  "in  its  discretion,"  so  it  will  read: 
"The  General  Assembly  may  in  its  discretion  provide  for  compulsory  education,"  etc. 

Mr.  Dunaway:  Mr.  President,  I  shall  vote  against  the  amendment  of  the  gentleman 
from  Page,  while  I  favor  the  sentiments  that  it  is  intended  to  convey.  The  word  "may" 
does  have  a  different  meaning  from  the  word  "shall."  We  have  used  the  word  "may" 
in  the  construction  of  the  article  upon  the  Legislative  Department — "the  General  As- 
sembly may" — and  in  various  parts  of  the  new  Constitution.  If  this  idea  is  to  prevail 
we  shall  have  to  rescind  the  words  "in  its  discretion,"  wherever  we  have  the  word 
"may"  in  the  Constitution.  I  do  not  believe  the  contention  which  has  been  made  by 
the  gentleman  to  my  left  (Mr.  Bouldin)  is  a  just  one,  that  the  word  "may"  in  the 
Constitution  ever  can  be  construed  into  a  mandatory  provision.  I  see  no  use  for  it. 
It  is  mere  surplusage.  It  is  adding  useless  words  to  what  is  going  to  be  a  very  long 
Constitution  anyhow,  and  I  believe  the  word  "may"  means  "maj-  in  its  discretion."  I 
shall,  therefore,  vote  against  the  insertion  of  these  unnecessary  words. 

The  amendment  was  agreed  to. 

Mr.  O'Flaherty:  Mr.  President,  I  now  move  to  strike  out  "thirteen,"  in  line  5, 
and  insert  "twelve"  in  lieu  thereof.  I  wish  to  state  very  frankly  that  I  shall  vote  for 
the  motion  to  strike  out  of  the  gentleman  from  Mathews  (Mr.  Garnett)  however  this 
amendment  of  mine  may  go,  but  I  want  to  get  the  age  as.  low  as  I  can.  I  hope  my 
amendment  will  be  agreed  to,  and  we  can  then  vote  on  the  motion  to  strike  out. 

Mr.  Mcllwaine:  Mr.  President,  I  hope  the  amendment  will  prevail.  I  think  it 
is  just  and  right,  and  I  believe  the  ages  between  eight  and  twelve  are  those  found  in 
most  of  the  school  laws  that  have  been  adopted  in  regard  to  compulsory  education. 

Mr.  Mcllwaine:  Mr.  President,  I  just  want  to  say  a  word  before  the  vote  is  taken 
on  striking  out  the  section.  It  seems  to  me  it  would  put  the  State  of  Virginia  in  a  very 
bad  attitude  for  this,  Convention  to  refuse  to  have  anything  in  the  Constitution  with 
a  view  in  the  future  to  bringing  to  accede  to  it  those  parents  who  are  utterly  indifferent 
to  the  education  of  their  children. 

Mr.  President,  have  gentlemen  considered  what  it  is  for  a  parent  to  lay  his  hand 
upon  his  child  and  to  deprive  him  of  the  poor  privilege  of  learning  to  read  and  write? 

I  do  not  want  to  detain  the  Convention,  but  it  does  seem  to  me  that  we  are  in 
danger  of  making  a  misstep.  I  do  not  believe  the  State  of  Virginia  is  at  present  in  a 
condition  where  this  Convention  could  properly  pass  such  a  law,  but  it  may  within  a 
few  years  be  in  a  condition  that  would  make  such  a  provision  very  necessary  to  the 
welfare  of  the  people  of  the  State.  The  gentleman  from  Halifax  (Mr.  Bouldin)  has 
said  that  surely  no  parents  can  be  so  lost  to  the  sense  of  the  welfare  of  their  children 
as  to  fail  to  do  what  they  can  for  their  education.  Why,  sir,  if  that  gentleman  knows 
what  is  going  on  within  a  few  miles  of  his  home,  he  must  know  that  there  are  many 
parents  who,  this  very  day,  are  bringing  up  their  children  in  absolute  ignorance.  I 
stated  on  this  floor,  I  think,  when  the  question  was  up  before,  and  I  will  state  it  again, 
that  one  thing  which  has  called  my  attention  to  this  matter  more  strongly  than  ever 
before  was  an  article  in  the  Richmond  Dispatch,  taken  from  a  Danville  letter,  in  which 
it  was  stated  there  were  scores  and  hundred  of  parents  who  had  moved  to  the  city  of 
Danville  in  order  to  put  their  children  into  the  cotton  factory,  and  that  those  little 
things,  from  eight  years  of  age  upward,  were  day  in  and  day  out  having  their  nervous 
and  intellectual  systems  strained  to  the  utmost  tension,  and  being  dwarfed  in  body  and 
in  mind  in  order  that  their  parents  might  live  in  idleness  while  their  children  grow  up 
ignoramuses  and  dangerous  to  society. 


1838  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Booildin:    Did  I  understand  you  correctly  to  say  that  the  condition  of  the 
State  of  Virginia  to-day  is  not  such  as  would  require  a  resort  to;  compulsory  education? 
Mr.  Mcllwaine:    I  said  so. 

Mr.  Bouldin:  I  agree  with  you  about  that.  If,  then,  the  conditions  hereafter 
should  require  it  could  you  not  safely  trus-t  the  Legislature  tO'  provide  it? 

Mr.  Mcllwaine:  But  in  the  meantime  you  cut  out  what  has  been  in  the  Consti- 
tution for  thirty  years,  and  thus  apparently  give  them  your  approval  to  their  doing 
nothing. 

Now,  sir,  this  condition  acknowledgedly  exists  in  Danville,  and  doubtless  exists  at 
other  manufacturing  centers  in  the  State.  Our  State  is  rapidly  becoming  a  manufac- 
turing State.  The  industries  are  increasing  very  much,  and  it  does  seem  to  me  that 
so  far  from  this  Convention  doing  anything  to  put  its  disapproval  upon  it  it  ought 
at  least  to  add  the  weight  of  its  influence  in  bringing  about  a  better  state  of  things 
among  this  class  of  our  population. 

Mr.  Meredith:  It  seems  to  me  there  has  been  difficulty  raised  by  a  question  asked 
by  a  gentleman  from  Norfolk  (Mr.  Thom).  The  question  asked  by  him  would  intimate, 
and  I  rather  think  the  gentleman  from  Halifax  (Mr.  Bouldin)  agreed  with  him,  that 
the  Legislature  would  have  this  power  without  a  constitutional  provision.  I  am  not 
prepared  to  say  myself  as  to  whether  it  would  or  not,  but  I  very  seriously  doubt 
whether  it  would. 

Certainly  it  is  that  other  States  have  found  it  necessary  to  put  it  in  their  consti- 
tutions, and  there  is  very  serious  doubt  whether  you  can  have  any  power  in  the  Legis- 
lature to  interfere  with  personal  liberty  unless  it  is  provided  for  by  the  Constitution. 
I  am  rather  inclined  to  take  that  view  of  it.  Therefore,  think  the  intimation  of  the 
gentleman  from  Norfolk,  that  the  Legislature  would  have  this  power  without  some 
constitutional  provision,  ought  not  to  pass  unchallenged.  If  there  is  a  doubt  as  tdi 
that  would  it  not  be  wiser  on  our  part  to  simply  give  the  Legislature  the  authority  to 
do  what  it  shall  see  fit.  Personally  I  am  in  favor  of  the  Legislature  having  that  pov/er. 
children  at  early  ages  and  putting  them  to  work,  which  I  think  is  a  great  crime  against 
civilization. 

I  can  see  the  danger  that  is  coming  up  among  our  manufacturing  cities  of  taking 
of  tlie  gentleman  from  Fairfax  I  confess  I  thought  at  least  there  was  some  doubt  on 
the  question.  He  seems  to  have  none,  however;  but  I  can  but  feel  that,  along  with  the 
rest  of  mankind,  he  sometimes  is  mistaken.  In  this  regard  I  think  we  had  better  "bear 
the  ills  we  have  than  fly  to  others  we  know  not  of." 

Therefore,  I  am  in  favor  of  the  retention  of  the  provision,  and  I  submit  we  ought 
not  to  strike  it  out  when  we  are  in  doubt  as  to  whether  the  effect  of  it  would  not  be 
to  tie  the  hands  of  the  Legislature,  even  if  the  necessity  should  hereafter  occur. 

Mr.  Bouldin:  Do  you  consider  yourself  that,  if  stricken  out,  there  would  be  any 
doubt  about  the  power  of  the  Legislature? 

Mr.  Meredith:  Personally  I  have  very  grave  doubt.  Upon  the  ground  that  I  doubt 
if  the  Legislature  has  any  right  to  interfere  in  matters  of  personal  liberty,  unless 
there  may  be  something  in  the  nature  of  police  power  for  the  suppression  of  crime. 

The  Presiding  Officer:  The  question  is  on  agreeing  to  the  motion  of  the  gentle- 
man from  Mathews  (Mr.  Garnett)  to  strike  out  Section  9. 

The  vote  being  taken,  resulted — ayes,  35;  noes,  43. 

Mr.  Garnett's  motion  was  rejected. 

Mr.  Mcllwaine:    I  move  the  adoption  of  Section  9. 

Section  9  was  adopted. 

Section  10  was  read  and  adopted. 

Section  11  was  read  and  its  consideration  temporarily  passed  by. 
The  Presiding  Officer:    The  Secretary  will  read  Section  12. 

Sec.  12.    The  General  Assembly  shall  make  provision  for  the  maintenance  of  the 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  1839 

University  of  Virginia,  and  of  the  Virginia  Military  Institute,  by  an  annual  appropriation 
not  less  than  now  provided  by  law. 

Mr.  James  W.  Gordon:    I  move  to  strike  out  that  section. 

Mr.  O'Flaherty:    Before  that  vote  is  put  I  want  to  offer  the  following  amendment. 

Provided,  however,  that  the  appropriation  to  the  University  of  Virginia  shall  never 
exceed  one-tenth  of  the  amount  raised  by  the  annual  tax  on  property  for  public  school 
purposes,  nor  shall  the  appropriation  to  the  Virginia  Military  Institute  exceed  one-thir- 
tieth of  said  fund. 

Mr.  President,  I  wish  to  say  just  one  word  in  explanation  of  the  amendment,  and 
that  is  about  the  amount  that  is  now  received  by  both  of  those  institutions.  From 
conversations  with  some  friends  of  the  University  I  believe  I  am  prepared  to  state  they 
left  me  under  the  impression  that  they  would  be  satisfied  with  this  provision.  It  is 
a  certain  percentage  of  the  amount  raised  by  the  annual  property  tax,  and  as  the 
amount  of  taxes  increase  it  would  give  them  a  greater  amount  of  appropriation.  It 
does  not  tie  them  to  any  special  amount.  There  <,ught  not  to  be  any  fixed  amount 
appropriated  for  those  institutions,  and  I  think  this  provision  ought  to  be  acceptable 
to  their  friends.. 

I  will  say,  very  frankly,  that  I  do  not  think  any  of  them  ought  to  go  into  the  Con- 
stitution, but  as  the  Committee  of  the  Whole  has  voted  that  there  shall  be  a  fixed  ap- 
propriation, and  as  the  friends  of  the  University  are  willing  to  accept  this,  I  hope  it 
will  be  accepted  by  those  who  take  the  same  view. 

The  Presiding  Officer:  The  question  is  upon  agreeing  to  the  amendment  offered 
by  the  gentleman  from  Warren  (Mr.  O'Flaherty). 

The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  recurs  upon  the  motion  of  the  gentleman  from 
the  city  of  Richmond  (Mr.  Gordon),  to  strike  out  the  section. 

The  question  having  been  taken,  the  result  was  announced — ayes,  44;  noes,  34. 
Mr.  Gordon's  motion  was  agreed  to. 

Mr.  R.  Walton  Moore:  Mr.  President,  I  wish  to  propose  an  independent  section: 
The  Secretary  read  as  follows: 

The  General  Assembly  shall  make  provision  for  the  maintenance  of  the  University  of 
Virginia  by  an  annual  appropriation  not  less  than  now  provided  by  law. 

Mr.  R.  Walton  Moore:  Mr.  President,  it  seems  to  me  there  is  no  change  in  the 
situation  since  we  then  voted  that  ought  to  induce  a  change  in  the  attitude  of  the  Con- 
vention towards  the  chief  of  the  educational  institutions  of  the  State.  The  argument 
is  unchanged,  and  since  we  voted  the  State  press,  to  large  extent,  doubtless  voicing 
public  opinion,  has  signified  its  wann  and  enthusiastic  approval  of  our  action.  There 
has  been  little  expreSiSion  of  dissent. 

I  voted  a  moment  agO'  with  the  friends  of  the  Virginia  Military  Institute  to  retain 
the  provision  embracing  both  of  these  institutions.  But  that  provision  is  defeated, 
and  now  I  respectfully  and  earnestly  beg  the  friends  of  the  institute  not  to  oppose 
the  pending  proposition,  but  to  assist  in  placing  the  University  in  the  Constitution 
and  relieving  it  of  the  dangers  to  which  it  is  now  subjected  and  which  have  been  so 
strongly  and  vividly  set  forth  by  my  friend  from  Lynchburg  (Mr.  Glass). 

One  word  further.  Permanency  was  a  vital  feature  of  the  act  which  was  passed  in 
the  winter  of  1818,  creating  the  University.  The  act  provided  that  there  should  be  so 
much  annually  paid  out  of  the  treasury  for  the  permanent  support  of  the  new  institu- 
tion. It  provided  a  continuing  appropriation.  I  appeal  to  the  Convention  to  return  td 
and  emphasize  the  policy  which  was  then  declared,  and  make  the  appropriation  perma- 
nent in  the  best  possible  way  by  writing  it  in  the  Constitution. 

Mr.  Hamilton:  I  move  as  a  substitute  for  the  amendment  of  the  gentleman  from 
Fairfax  the  following: 


1840 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  General  Assembly  shall  make  provision  for  the  maintenance  of  the  Virginia 
Military  Institute  by  an  annual  appropriation  not  less  than  now  provided  by  law. 

The  Presiding  Officer:  The  question  is  upon  the  substitute  offered  by  the  gentle- 
man from  Petersburg  (Mr,  Hamilton)  to  the  amendment  offered  by  the  gentleman  from 
Fairfax  (Mr,  Moore). 

The  question  having  been  taken,  the  result  was  announced — ayes,  11;  noes,  62. 

Mr.  James  W.  Gordon:  Mr.  President,  I  offer  the  following  amendment  to  the 
section. 

The  Secretary  read  as  follows: 

Amend  by  inserting  the  words,  "Virginia  Military  Institute  and  State  Female  Normal 
School,"  after  the  words,  "University  of  Virginia." 

The  Presiding  Officer:  The  Chair  thinks  the  proposed  amendment  is  germane. 
The  question  is  upon  agreeing  to  the  amendment  offered  by  the  gentleman  from  the 
city  of  Richmond  (Mr.  Gordon). 

Mr,  Thorn:    Rule  139  of  Reed's  Parliamentary  Rules  is  as  follows: 

If  the  amendment  to  strike  out  be  decided  in  the  affirmative,  then  the  words  stricken 
out  definitely  cease  to  be  a  part  of  the  main  question  and  cannot  be  reinstated  in  whole  or 
in  part;  but  the  same  words  with  others,  or  a  part  of  the  same  words  with  others,  may  be 
inserted,  provided  they  constitute  substantially  a  new  proposition. 

It  seems  to  me,  Mr.  President,  in  view  of  the  facts,  this  is  conclusive  authority  that 
the  motion  to  reconsider  should  prevail. 

Mr.  Wysor:  Mr.  President,  I  think  the  ruling  of  the  Chair  is  self-evidently  right 
and  proper.  The  propositions  were  put  to  the  body  conjunctively  and  it  had  no  oppor- 
tunity at  all  to  vote  on  them  separately.  I  do  not  think  the  authority  which  has  been 
quoted  sustains  the  position  of  the  gentleman,  and  I  hope  it  may  be  the  pleasure  of  the 
Chair  to  sustain  his  own  ruling. 

The  Presiding  Officer:  The  Chair  adheres  to  his  ruling.  The  proposition  as  voted 
on  included  the  two  institutions  together.  It  was  the  judgment  of  the  Convention  that 
the  proposition  providing  for  appropriations  to  both  of  these  institutions  should  be 
rejected.  Then  the  proposition  was  to  separate  them,  which  had  not  been  demanded 
before. 

Mr.  Thorn:    I  appeal  from  the  decision  of  the  Chair. 

The  Presiding  Officer:  The  gentleman  from  Norfolk  (Mr.  Thom)  appeals  from  the 
decision  of  the  Chair.  The  question  is,  shall  the  decision  of  the  Chair  stand  as  the 
judgment  of  the  house? 

Mr.  Thorn:  Mr.  President,  it  is  with  extreme  reluctance  that  I  make  this  appeal 
from  the  ruling  of  the  Chair.  But  it  seems  to  me  this  is  a  matter  of  the  utmost  import- 
ance, and  that  it  ought  to  be  decided  upon  the  merits  of  the  question,  and  not  with 
reference  to  any  views  that  gentleman  may  have  on  the  pending  proposition.  If  the 
rules  which  I  hold  in  my  hand  be  authority,  and  I  suppose  they  are  universally  recog- 
nized as  such,  then  they  are  definitely  to  the  point  that  when  an  "amendment  to  strike 
out  be  decided  in  the  affirmative,  then  the  words  stricken  out  definitely  cease  to  be  a 
part  of  the  main  question  and  cannot  be  reinstated  in  whole  or  in  part  " 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow, 
Thursday,  January  16,  1902,  at  10  o'clock  A.  M. 


THURSDAY,  January  16,  1902. 


The  Convention  met  at  10  o'clock  A.  M. 

Prayer  by  Rev.  George  Cooper,  D.  D.,  of  Richmond, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1841 


The  President:  The  unfinished  business  is  the  appeal  taken  on  yesterday  from  the 
ruling  of  the  temporary  occupant  of  the  chair,  and  the  gentleman  from  Norfolk  city 
(Mr.  Thorn)  is  entitled  to  the  floor. 

The  question  having  teen  taken,  the  result  was  announced — ayes,  30;  noes,  4G. 

The  decision  of  the  Chair  was  reversed. 

Mr.  Boaz:  Mr.  President,  I  beg  leave  to  offer  the  following  as  an  independent 
section. 

The  General  Assembly  shall  provide  of  the  support  of  the  University  of  Virginia  by  an 
appropriation  for  each  year  out  of  the  general  revenues  of  the  State  of  a  sum  of  money 
amounting  to  not  less  than  one-ninth  of  the  sum  arising  from  the  tax  on  property  appli- 
cable to  public  free  schools  for  each  year. 

Mr.  President,  I  simply  wish  to  explain  what  is  the  effect  of  that  amendment.  It 
provides  for  a  minimum  appropriation  to  the  University  of  Virginia,  being  a  sum  not 
less  than  one-ninth  of  the  amount  derived  from  the  taxes  on  property  applicable  to  public 
school  purposes  for  each  year.  Taking  the  year  1900,  for  example,  the  amount  derived 
from  the  tax  on  property  applicable  to  public  school  purposes  for  that  year  was 
$877,000.  That  includ-ed  $377,000  of  poll  tax,  which  being  deducted,  leaves,  $500,000, 
ninety  per  cent,  of  which"  is  applicable  to  public  free  school  purposes,  making  $450,000. 
One-ninth  of  that  is  $50,000,  exactly  what  the  University  is  now  receiving.  If  the  revenues 
increase,  the  appropriation  to  the  University  may  increase.  It  will  not  necessarily 
increase.  This  amendment  fixes  a  minimum — not  less  than  one-ninth.  If  the  revenues 
decrease  the  appropriation  of  the  University  will  decrease. 

I  hope  this  will  meet  the  views  of  some  of  the  gentlemen  who  are  averse  to  havinsr 
a  fixed  appropriation. 

This  is  a  fluctuating,  a  floating  appropriation. 

Mr.  Eggleston:  I  do  not  think  the  gentleman  from  Albemarle  (Mr.  Boaz)  is  cor- 
rect when  he  says  this  amount  cannot  be  raised.  It  fixes  permanently  that,  no  matter 
how  much  the  revenue  may  increase  which  is  appropriated  to  public  free  schools,  the 
Universitj"  shall  get  not  less  than  one-ninth  of  it.  If  it  runs  up  to  a  million  dollars,  the 
University  under  this  amendment  will  be  entitled  to  not  less  than  one-ninth.  You  can- 
not cut  it  down  less  than  one-ninth.  While  you  can  raise  it  as  much  as  you  please  you 
cannot  cut  it  down. 

Mr.  Glass:  I  offer  as  an  amendment  to  the  proposition  presented  by  the  gentleman 
from  Albemarle  these  words: 

Provided,  That  in  no  year  shall  the  appropriation  exceed  the  sum  of  $49,000. 

Mr.  O'Flaherty:  Mr.  President,  I  wish  to  call  attention  to  the  fact  that  that  is  just 
exactly  the  reverse  of  the  proposition  which  was  offered  and  voted  down  yesterday, 
except  that  it  was  $50,000  and  one-ninth.  If,  as  has  been  stated,  the  amount  shall  be 
paid  by  the  tax-payers  of  Virginia  should  be  double  what  it  is  now  the  University  of 
Virginia  would  get  $100,000  the  very  next  year,  and  you  can  never  reduce  it.  I  offered 
to  provide  a  minimum,  but  the  gentleman  would  not  accept  it.  I  offered  to  provide  that 
the  University  should  receive  as  a  minimum  one-ninth  and  as  a  maximum  that  it  should 
never  receive  more  than  $50,000.  They  reverse  the  proposition  now  and  I  hope  it  will 
be  voted  down. 

The  President:  The  Chair  understands  that  the  gentleman  from  Lynchburg  (Mr. 
Glass)  has  withdrawn  his  amendment.  The  question  recurs  on  the  amendment  offered 
by  the  gentleman  from  Albemarle  (Mr.  Boaz). 

Mr.  James  W.  Gordon:  I  offer  as  an  amendment  to  that  section  that  there  shall  be 
a  like  appropriation  made  to  the  Virginia  Military  Institute  of  an  amount  not  exceeding 
one-twentieth  of  such  taxes. 


1842 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Richmond  (Mr.  Gordon). 

Mr.  Keezell:  Mr.  President,  it  seems  to  me  there  is  one  objection  to  the  form  of 
this  amendment.  You  will  remember  when  we  were  discussing  the  question  whether 
or  not  an  additional  alppropriation  might  be  made  to  the  public  free  schools  in  that 
clause  of  the  Constitution,  which  provides  for  a  tax  of  not  less  than  one  mill  nor  more 
than  five  mills  on  personal  property  and  real  estate,  the  gentleman  from  Richmond 
(Mr.  Pollard)  offered  as  an  amendment  to  insert  the  words,  "or  such  other  sums  as  the 
General  Assembly  may  appropriate,"  which  was  stricken  out.  The  General  Assembly 
has  been  appropriating  each  year  $200,000  in  addition  to  the  tax  of  one  mill  on  personal 
property  and  real  estate.  The  effect  of  the  refusal  of  the  Convention  to  adopt  the 
amendment  of  the  gentleman  from  Richmond  is  that  if  we  propose  to  give  to  the 
public  free  schools  the  same  amount  of  money  they  now  receive  out  of  the  public 
treasury  it  will  be  necessary  to  have  not  one  mill  but  a  mill  and  a  half,  possibly.  In 
other  words,  we  would  have  to  increase  the  rate  to  15  cents  on  the  hundred  dollars  for 
free  school  purposes  instead  of  10  cents  on  the  hundred  dollars,  which  we  are  now  pay- 
ing, and  to  reduce  the  rate  for  general  State  purposes  from  30  cents  to  25  cents.  If  we 
were  to  adopt  the  amendment  of  the  gentleman  from  Albemarle,  we  would  at  once  allow 
the  University  of  Virginia  and  the  Virginia  Military  Institute  to  participate  in  this 
$200,000,  in  addition  to  the  one-ninth,  which  is  based  upon  the  idea  of  what  is  done  now 
as  an  appropriation  for  the  tax  on  personal  property  and  real  estate.  It  would  in  effect 
increase  the  appropriation  one-third,  making  it  $75,000  instead  of  $50,000. 

The  amendment  was  rejected. 

The  President:  The  question  recurs  on  the  amendment  of  the  gentleman  from 
Albemarle. 

Mr.  Glass:    I  offer  the  following  amendment. 
The  Secretary  read  as  follows: 

Add  at  the  end  of  the  proposed  section  the  following:  "Provided  that  the  General 
Assembly  may  in  any  year  limit  the  amount  to  be  appropriated  to  the  sum  of  $50,000." 

Mr.  Boaz:    Mr.  President,  I  will  accept  that  amendment. 

The  question  having  been  taken,  the  result  was  announced — Ayes,  39;  noes,  39 — as 
follows : 

Ayes — Messrs.  Allen,  Ayres,  Barbour,  Thomas  H.  Barnes,  Blair,  -Boaz,  Bouldin,  Bris- 
tow,  Brooke,  Brown,  P.  W.  Campbell,  Carter,  Cobb,  Epes,  Glass,  Gregory,  Hatton,  Hunton, 
Ingram,  Claggett  B.  Jones,  Kendall,  Lawson,  Lindsay,  Meredith,  R.  W^alton  Moore,  Pollard, 
Portlock,  Quarles  Rives,  Roberston,  Stuart,  Thornton,  Turnbull,  Walker,  Watson,  Wescott, 
Willis,  Wise  and  Wysor— 39. 

Noes — W.  A.  Anderson,  Barham,  Manly  H.  Barnes,  Clarence  J.  Campbell,  Crismond, 
Davis,  Dunaway,  Earman,  Eggleston,  Fairfax,  Fletcher,  Gilmore,  Gillespie,  R.  L.  Gordon, 
Gwyn,  Hamilton,  Hancock,  Hardy,  Hooker,  G.  W.  Jones,  Keezell,  Lincoln,  Marshall, 
Mcllwaine,  Miller,  Moncure,  Mundy,  O'Flaherty,  Orr,  Pedigo,  Phillips,  Richmond,  Sum- 
mers, Tarry,  Thom,  Waddill,  Walter,  Withers  and  the  President — 39. 

A  motion  to  reconsider  the  vote  was  rejected — ayes,  41;  noes,  41. 
The  President:    The  Secretary  will  read  Section  13. 

Sec.  13.  Members  of  the  boards  of  visitors  or  trustess  of  educational  institutions, 
required  by  law  to  be  appointed  by  the  Genearl  Assembly  or  the  Governor,  shall  hold 
their  position  for  the  term  of  four  years. 

Mr.  Brown:    I  offer  the  following  amendment  to  Section  13. 

In  line  5,  after  the  word  "shall,"  strike  out  the  rest  of  the  section,  and  insert  at  the 
end  the  following:  "Be  appointed  for  term.s  of  four  years;  provided,  that  one-half  of 
the  first  boards  appointed  under  this  Constitution  shall  be  for  two  years." 

The  object  of  the  amendment  is  simply  to  strike  out  the  words  "hold  that  position 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


for  a  term  of  four  years,"  which  might  be  construed  to  mean  there  shall  be  no  reappoint- 
ments to  these  boards,  and  also  to  restore  the  present  plan  of  appointing  half  the  mem- 
bers of  these  boards  for  a  term  of  tvro  years  and  half  of  them  for  four  years^,  so  that 
there  shall  always  be  in  charge  of  these  institutions  hold-over  men  who  are  experienced 
in  their  management.  It  seems  to  me  to  be  a  proposition  to  which  there  should  be  no 
dissent.  The  members  of  the  committee  are  unanimously  in  faA'or  of  the  proposition. 
The  amendment  was  agreed  to. 

On  motion  of  Mr.  Brown  the  vote  by  which  the  amendment  offered  by  him  was 
adopted  was  received. 

The  President:    The  Secretary  will  read  the  amendment  as  now  offered. 

Strike  out  the  words  "hold  their  positions  for  the  term  of  four  years"  and  insert 
the  w^ords  "be  appointed  for  terms  of  four  years:  Provided,  that  tne  General  Assembly 
may  provide  for  different  terms  for  the  first  boards  appointed  under  this  Constitution, 
so  that  there  shall  be  hold-over  members." 

The  amendment  was  rejected. 

Mr.  Mcllwaine:    I  move  that  Section  13  be  adopted. 
Section  13  was  adopted. 

Mr.  William  A.  Anderson:  Mr.  President,  I  feel  some  diffidence  in  offering  the 
amendment  which  I  now  propose  to  this  article;  but  the  matter  is  one  of  such  import- 
tance,  and  the  vote  of  the  Convention  upon  yesterday  was  so  close,  that  I  think  the 
proposition  should  be  submitted  for  the  judgment  of  members  in  the  shape  in  which  I 

have  ventured  to  formulate  it.  I  will  read  the  amendment  which  I  desire  to  submit 
to  come  in  as  an  independent  section: 

The  General  Assembly  shall  have  the  power  at  any  time  after  the  expiration  of  the 
first  term  of  the  Superintendent  of  Public  Instruction  under  this  Constitution  to  pro- 
vide, by  a  vote  of  two-thirds  of  the  members  elected  to  each  house,  that  the  Superin- 
tendent of  Public  Instruction  shall  be  thereafter  elected  in  such  manner  as  the  General 
Assembly  may  prescribe. 

If  this  amendment  is  adopted  the  General  Assembly  may  provide  that  the  General 
Assembly  itself  will  thereafter  select  the  Superintendent  of  Public  Instruction:  It  may 
provide  that  the  Governor  may  appoint,  with  the  concurrence  of  the  General  Assembly 
the  Superintendent  of  Public  Instruction,  or  it  may  delegate  to  the  Board  of  Public 
Instruction  the  power  to  select  a  Superintendent  of  Public  Instruction. 

Mr.  President,  the  far-reaching  importance  of  the  question  involved  in  this  pro- 
position is  my  apology-  to  the  members  of  the  Convention  for  presenting  it  to  them  for 
their  consideration. 

Mr.  President,  if  there  is  any  office  to  be  provided  for  by  the  new  Constitution 
which  should  not  be  filled  by  a  politician,  in  the  Selection  of  the  incumbent  of  which 
considerations  of  narrow  partisan  politics  should  not  control  the  appointing  power,  in 
which  the  only  consideration  in  the  selection  of  the  incumbent  of  the  office  should  be 
fitness  and  possession  of  the  high  and  rare  qualifications  necessary  for  the  efficient 
discharge  of  its  duties,  it  is  the  office  of  Superintendent  of  Public  Instruction.  It  may 
be  that  political  conventions  or  the  people  voting  in  primaries  may  not  be  influenced 
by  considerations  such  as  have  been  mentioned;  but.  Mr.  President,  the  danger  is  that 
they  will  be.  Another  danger  is  that  they  will  be  controlled  by  geographical  con- 
siderations. I  venture  to  say  that  there  are,  perhaps,  fifty  men  in  the  Commonwealth 
competent  to  discharge  the  duties  of  Governor  of  the  Commonwealth  to  one  who 
possesses  the  rare  qualifications  which  the  Superintendent  of  Public  Instruction  should 
possess. 

It  is  an  office  of  importance  equal  to  any  in  the  gift  of  the  people  of  the  government 
of  Virginia,  and  one  which  it  is  much  more  diffir^ult  to  fill  than  any  other.  If  the  right 
man  to  fill  this  most  important  position  lives  in  the  same  county,  in  the  same  tov^m,. 


ISU 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTION"  OF  VIRGINIA. 


in  the  same  house  with  the  Governor,  that  man  ought  to  be  selected;  but  when  you 
have  political  parties  making  their  nominations,  the  supreme  interest  is  in  the  selection 
of  the  head  of  the  ticket,  the  nominee  for  Governor;  and  in  primaries  or  in  political 
Conventions,  where  results  are  often  determined  by  political  combinations,  you  will 
never  find  people  selecting  a  nominee  for  Superintendent  of  Public  Instruction  from  the 
same  city,  the  same  county,  or  the  same  tov\^n  from  which  they  select  the  nominee  for 
Governor. 

Again,  sir,  the  man  ^ho  can  efficiently  discharge  the  duties  of  a  position  like  this 
must  be  a  great  educator,  a  great  administrator,  a  man  competent  to  deal  with  men  of 
affairs.  He  must  have  executive  ability.  He  mmst  have  qualities  that  are  very  rarely 
found.  Any  Commonwealth  is  fortunate  which  can  produce  a  half  dozen  men  com- 
petent, efficiently,  to  administer  this  great  public  institution  with  all  of  its  ramifications 
and  all  of  the  vast  powers  that  must  be  reposed  in  the  head  of  this  institution. 

Now,  there  is  a  great  peril  in  this  article  as  it  stands  which  cannot  be  corrected 
unless  some  such  provision  as  this  is  adopted.  If  it  shall  be  found  that  the  plan  in 
the  article  as  adopted  does  not  work  well,  then  the  power  should  be  vested  somewhere 
to  give  a  remedy;  and  we  cannot  put  it  in  any  safer  hands  than  in  the  hands  of  the 
representatives  of  the  people  in  the  General  Assembly. 

Mr.  Keezell:  Would  he  object  to  embodying  in  his  proposition  that  if  the  other 
members  of  the  board,  the  persons  who  represent  the  institutions,  should  not  prove 
satisfactory  they  might  be  remodeled  by  the  General  Assembly? 

Mr.  William  A.  Anderson:  Mr.  President,  I  was  opposed  to  narrowing  the  selec- 
tion, to  be  made  by  the  General  Assembly,  to  the  members  of  the  faculties  of  the 
different  institutions  of  the  State;  but  that  is  a  proposition  that  ought  to  stand  on  its 
own  merits.  It  relates  to  another  section  of  this  article.  I  am  perfectly  willing  to 
vest  the  whole  control  of  that  subject  in  the  General  Assembly,  and  I  so  voted.  I 
think  we  ought  to  confer  upon  the  General  Assembly  the  right  and  the  power  to  correct 
the  evil  that  some  of  the  wisest  men  in  the  Convention  have  pointed  out  as  an  immi- 
nent peril,  if  we  adopt  the  Constitution  in  the  shape  in  which  this  article  now  stands. 

Mr.  Withers:  Mr.  President,  I  respectfully  submit  to  the  gentleman  that  the 
most  complete  answer  to  all  his  arguments  is  the  gentleman  himself.  He  has  just 
been  inducted  into  office  hy  virtue  of  the  people  of  whom  he  now  seems  so  much 
afraid.  (Laughter.) 

,  Mr.  William  A.  Anderson:  Mr.  President,  I  am  very  much  obliged  to  the  gentle- 
man for  his  flattering  allusion  to  myself,  but  I  will  say  there  are  100,  perhaps  500, 
men  in  the  State  competent  to  be  Attorney-General.  I  do  not  know  five  who  are  com- 
petent, efficiently,  to  discharge  the  duties  of  Superintendent  of  Public  Instruction. 

The  amendment  proposed  by  Mr.  Anderson  was  laid  on  the  table — ayes.,  43;  noes. 

30. 

The  President:  According  to  the  understanding  of  the  Chair  that  completes  this 
report,  except  as  to  two  matters — section  5,  in  which  there  is  a  motion  pending  to 
reconsider,  and  Section  11,  which  was  passed  by. 

The  President:  The  special  order  is  the  report  of  the  Committee  on  the  Legisr 
lative  Department.    The  Secretary  v>ill  read  the  first  section. 

ARTICLE  V. 

Section  1.  Tne  Legislative  power  of  this  State  shall  be  vested  in  a  General  Assem- 
bly, which  shall  consist  of  a  Senate  and  House  of  Delegates. 

Section  1  was  adopted. 

The  President:    The  Secretary  will  read  Section  2. 

Sec.  2.    The  House  of  Delegates  shall  be  elected  quadrennially  by  the  voters  of  the 


DEBATES  OP  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


18-15 


several  cities  and  counties  on  the  Tuesday  succeeding  the  first  Monday  in  November, 
cind  shall  consist  of  not  more  than  100  and  not  less  than  90  members. 

Mr.  Flood:    I  offer  the  following  amendment  to  that  section: 

The  House  of  Delegates  shall  be  elected  biennially  by  the  voters  of  the  several  cities 
and  counties  on  the  Tuesday  succeeding  the  first  IMonday  in  November,  and  shall  consist 
of  not  more  than  100  nor  less  than  90  members. 

The  question  having  been  taken,  the  result  was  annunced — ayes,  34;  noes,  o9 — as 
follows: 

Ayes — Messrs.  Ayers,  Boaz,  Bouldin,  Bristow,  Brooke,  Brown,  Cameron,  Clarence  3, 
Campbell,  Bunaway,  Earman,  Eggleston,  Epes,  Fletcher,  Flod,  Garnett.  Gillespie,  Glass, 
Hamilton,  Hancock,  Hatton,  Ingram,  Keezell,  Kendall,  :Mundy.  O'Flaherty,  Pedigo,  Rives, 
Summers,  Thom,  Waller,  Watson,  Wise,  Wysor  and  the  President — 34. 

Noes — Messrs.  W.  a.  Anderson,  Barbour,  Barham,  Manly  H.  Barnes,  Thomas  H. 
Barnes,  Carter,  Cobb,  Crismond,  Davis,  Fairfax,  B.  T.  Gordon,  James  W.  Gordon,  Gregory, 
Gwyn,  Hooker,  Hunton,  Claggett  B.  Jones,  Lawson,  Lincoln,  Lovell,  Marshall,  McIUaine, 
Meredith,  Miller,  Moncure,  R.  Walton  Moore,  Orr,  Parks,  Phillips,  Robertson,  Stuart, 
Tarry,  Thornton,  Turnbull,  Waddill.  Wescott,  Willis.  Withers  and  Yancey — 39. 

The  following  pairs  were  annotmced: 

Mr.  Walker  with  Mr.  Braxton;  Mr.  Allen  with  Mr.  G.  K.  Anderson:  :\Ir.  Smith  with 
Mr.  Hardy;  :\Ir.  Harrison  with  :\Ir.  Quarles;  Mr.  Pettit  with  :\Ir.  Gilmore;  Mr.  Daniel 
with  :\Ir.  Lindsay;  Mr.  Hubbard  with  :\Ir.  Pollard;  Mv.  Chapman  with  Mr.  Richmond. 

The  first  named  would  have  voted  in  the  affirmative. 

The  amendment  was  rejected. 

The  President:    The  Secretary  will  read  Section  3. 

Sec.  3.  The  Senate  shall  consist  or  not  more  than  forty  and  not  less  than  thirty- 
three  members.  They  shall  be  elected  for  the  term  of  four  years  in  their  respective 
districts.  Each  county,  city  and  town  of  the  respective  districts  shall,  at  the  time  of  its 
first  election  of  its  delegate  or  delegates  tinder  this  Constitution,  vote  for  one  or  more 
Senators. 

Section  3  was  adopted. 

Sections  5  and  G  were  read  and  adopted. 

Mr.  Barbour:  I  move  to  amend  Section  5  by  inserting  the  words  "'and  his  quali- 
fications thereto"  after  the  words  "General  Assembly,"'  in  line  17.  That  amendment 
was  adopted  in  Committee  of  the  Whole,  but  seems  to  have  been  overlooked. 

The  amendment  was  agreed  to. 

Mr.  Flood  offered  the  following  amendment: 

In  Section  7,  line  3.  at  the  end  of  the  line,  insert  "two"'  in  place  of  "four."'  In  Sec- 
tion 7,  in  line  7,  substitute  "sixty"  for  "ninety."'  In  line  12  substitute  "sixty"'  for 
"ninety." 

Mr.  Ingram:  Mr.  President  and  gentlemen  of  the  Convention,  in  the  "declaration 
against  the  company,  to  be  entered  as  the  twenty-first  act""  of  the  Grand  Assembly  of 
Virginia,  1642,  we  read:  "The  present  happiness  is  exemplified  to  us  by  the  freedom 
of  yearly  assemblies  warranted  unto  us  by  his  Majestie's  gracious  instructions,  and  the 
legal  trial  per  juries  in  all  criminal  and  civil  causes  where  it  shall  be  demanded."  And 
every  student  familiar  with  the  political  history  of  our  Commonwealth  knows  that 
these  yearly  assemblies  were  continued  after  the  foundation  of  the  Republic  until  some 
few  years  ago,  when,  on  account  of  our  State  debt  and  the  impoverished  condition  of 
our  treasury,  biennial  sessions  of  the  Legislature  were  made  necessary.  And  now, 
Mr.  President,  in  the  judgment  of  the  Legislative  Committee  it  is  thought  wise  to 
provide  for  quadrennial  sessions  of  the  Legislature  as  being  most  conductive  to  the 
general  welfare.    This  startling  proposition  is  championed  with  great  ability  by  mem- 


1846 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


bers  of  this  body  on  two  grounds,  as  I  recall  their  speeches — first,  on  the  ground  that 
too  frequent  legislation  is  dangerous,  and,  second,  on  the  score  of  economy.  The  gen- 
tleman from  Roanoke,  who  is  ever  frank  and  fair,  in  a  very  attractive  speech  gave  his 
support  to  the  proposition  on  the  first  ground,  and  instanced  some  examples  of  vicious 
legislation  by  our  "General  Assembly"  in  recent  years.  This  argument,  I  most  res.pect- 
fully  submit,  carried  to  its  legitimate  conclusion,  would  make  it  obligatory  on  us  to 
abolish  the  Legislature  altogether.  This,  of  course,  he  did  not  mean,  nor  does  he  so 
intend.  Per  contra,  much  of  the  legislation  has  been  wise  and  necessary,  but  to  sustain 
the  necessity  of  retaining  the  Legislative  Department  of  a  free  government,  precedents 
need  not  be  cited  or  named. 

When  Grenville,  in  177G,  cited  the  authority  of  divers  cases  to  show  that  America 
might  be  taxed  without  representation,  Pitt  answered:  "I  come  not  here  armed  at 
all  points  with  the  statute  books  double-downed  in  dogs'  ears:  to  defend  the  cause  of 
liberty.  I  can  acknowledge  no  veneration  for  any  procedure,  law  or  ordinance  that  is 
repugnant  to  reason  or  the  first  principles  of  our  Constitution."  Where  burns  among 
our  sister  States  the  lamp  of  experience  to  guide  us  in  this  most  important  matter? 
What  haS)  been  their  action  in  this  regard?  The  chairman  of  the  committee,  the  ac- 
complished gentlem.an  from  Fairfax,  who  represents  on  this  floor  the  county  of  George 
Mason,  and  that,  too,  with  conspicuous  ability  and  never-falling  courtsey,  points  us  to 
the  action  of  Alabama,  and  possibly,  I  do  not  now  recollect,  to  one  or  two  other  States; 
but  the  great,  I  may  say  the  unanimous  action  of  all  the  States  has  been  against  the 
proposiiuon.  Massachusetts,  with  its  splendid  record  of  safe,  conservative  and  bene- 
ficial legislation,  has  annual  sessions  of  ita  legislature.  This  is  the  rule  in  the  progres- 
sive States  of  the  Union.  Quadrennial,  and  even  biennial,  session  are  the  exception. 
By  following  the  experimental  example  of  Alabama,  I  am  reminded  of  the  discourse 
of  the  great  Fuller  as  to  how  far  examples  are  to  be  followed.  He  mentions 
the  abuse  of  them  by  those  who,  though  they  have  room  enough  besides,  yet 
delight  to  walk  on  a  narrow  bank  near  the  sea,  and  have  an  itch  to  imitate  these 
doubtful  examples,  wherein  there  is  great  danger  of  miscarrying.  The  argument  I 
submit  is  not  so  much  that  the  State  would  suffer  from  the  lack  of  new  laws  that  new 
conditions  would  demand,  which  would  often  occur,  but  rather,  if  the  Legislature 
should  enact  unwise  laws,  the  remedy  would  be  in  abeyance  for  four  years.  The 
answer  to  this,  however,  by  the  committee  is  that  there  would  be  extra  sessions  of 
the  Legislature.  This,  in  some  instances,  would  be  so;  in  many  others  it  would  not 
be  SO'.  Whenever  political  mistakes  were  made,  and  there  was  a  great  outcry  on  the 
part  of  the  people,  I  concede  that  oftentimes  this  would  be  the  result.  But,  Mr.  Presi- 
dent, interests  of  a  business  and  commercial  character,  wherein  the  element  of  politics 
did  not  enter,  would  drag  and  suffer,  in  mv  .iudgment,  to  an  incalculable  extent. 
Edmond  Burke,  in  his  great  speech  "On  Conciliation  with  America,"  says  there  are 
"none  of  us  who  would  not  risk  his  life  rather  than  fall  under  a  government  purely 
arbitrary.  But,  although  there  are  some  among  us  who  think  our  Constitution  wants 
many  improvements  to  make  a  complete  system  of  liberty,  perhaps  none  who  are  of 
that  opinion  would  think  it  right  to  aim  at  such  improvement  by  disturbing  his  country 
and  risking  everything  that  is  dear  to  him.  In  every  arduous  enterprise  we  consider  what 
we  are  to  lose  as  well  as  what  we  are  to  gain;  and  the  more  and  better  stake  of  liberty 
every  people  possess,  the  less  they  will  hazard  in  a  vain  attempt  to  make  it  more. 
These  are  the  cords  of  man."  And  yet,  Mr.  President,  the  action  of  this  committee  will 
sever  or  seriously  injure  one  of  the  most  vital  cords  in  the  autonomy  of  oiir  State. 
Again,  Mr.  President,  can  it  be  wise  and  judicious  for  our  appropriation  bills  to  be 
made  for  as  long  a  time  as  four  years?  Would  there  not  be  great  danger  to  the  Com- 
monwealth in  so  doing?    Can  it  be  satisfactorily  done? 

In  the  Convention  of  1829-30  Judge  John  Scott,  a  jurist  and  patriot  of  great  ability, 
said  that  "the  guarantee  of  interest  constitutes  the  chief  difference  between  republican 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


and  aristocratic  or  monarchical  governments.  The  responsibility  of  public  agents 
resolves  itself  into  this  principle.  By  causing  the  law-maker  to  mingle  with  the  people, 
and  be  subjected  to  the  laws  which  he  has  enacted,  you  make  it  to  his  interest  to  enact 
just  laws.  By  subjecting  him  to  re-election  at  short  intervals  you  make  it  his  interest 
to  consult  the  welfare  of  his  constituents  in  order  that  he  may  be  re-elected.  The 
annals  of  mankind  occasionally  set  before  us  examples  of  self-sacrifice  on  the  altars 
of  patriotism  and  virtue,  but  they  are  few  v^^hen  compared  with  the  sacrifices  of 
patriotism  and  virtue  on  the  altars  of  ambition  and  avarice,  and  serve  by  their  splendor 
to  render  more  visible  the  dark  shades  of  human  character.'" 

This  is  as  true  now  as  when  uttered  by  Judge  Scott.  I  have  an  idea,  Mr.  Presi- 
dent, that  the  gentlemen  who  advocate  this  new  thing  under  the  sun  in  this  Com- 
monwealth will  find  themselves  politically,  at  least,  at  no  distant  day  in  the  position 
of  Orgeterix.  He,  if  you  recall,  was  desirous  of  new  things,  and  after  his  capture  was 
thrown  into  prison,  and  Caesar  tells  us  that  on  the  next  morning  after  his  imprisonment, 
when  his  cell  was  opened,  he  was  found  to  be  dead,  and,  Caesar  adds  '■that  suspicion 
was  not  wanting  but  that  Orgeterix  came  to  his  death  by  his  own  hand." 

Or,  perhaps,  their  fate  will  be  like  that  of  Memnon,  "who  went  to  the  Trojan  war 
in  beautiful  armor  and  flushed  with  popular  praises  where,  thirsting  after  further  glory, 
and  rashly  hurrying  on  to  the  greatest  enterprises,  he  engages  the  bravest  wan-ior  of 
all  the  Greeks,  Achilles,  and  falls  by  his  hand  in  single  combat.  Jupiter,  in  commisera- 
tion of  his  death,  sent  birds  to  grace  his  funeral,  that  perpetually  chanted  certain 
mournful  and  bewailing  dirges.  It  is  also  reported  that  the  rays  of  the  rising  stm, 
striking  his  statue,  used  to  give  a  lamenting  sound." 

\\liy,  Mr.  President,  the  very  suggestion  of  such  political  obsequies  for  our  friends 
makes  us  shudder  and  grow  sick  at  heart.  For  myself,  unless  forced  to  do  so,  I  shall 
not  partake  of  such  funeral  baked  meats. 

There  is  another,  to  my  mind,  very  cogent  reason  why  quadrennial  sessions  of  the 
Legislature  should  be  avoided;  and  that  is,  that  at  stated  and  recurring  periods  both  of 
our  United  States  Senators  will  be  elected  at  the  same  time.  The  figures  I  have  not 
at  hand,  but  the  gentleman  from  Portsmouth,  who  is  very  able  and  accurate  has  made 
the  calculation,  and  will  doubtless  furnish  them,  if  you  care  to  see  them.  Is  this 
desirable?  Is  this  desired?  The  second  ground  urged  for  quadrennial  sessions  is  that 
it  would  result  in  economy. 

Economy,  Mr.  President  and  gentlemen  of  the  Convention,  in  the  administration 
of  the  government,  is  proper  and  right,  but  there  is  such  a  thing  as  "a  saving  to  the 
hundred  and  a  loss  to  the  shire;''  and  the  people  will  be  slow  to  understand  an 
economy  that  seeks  to  seriously  impair  the  efficiencj^  of  that  branch  of  the  government 
in  which  they  are  most  interested — the  law-making  department.  This  meeting  together 
at  not  infrequent  periods  of  their  representatives  to  curb  and  put  down  tyranny  and 
oppression,  if  necessary,  and  to  perpetuate  for  them  free  institutions,  means  a  great 
deal  to  them.  And  they  did  not  intend  that,  either  directly  or  indirectly,  we  should 
take  it  away  from  them.  I  cannot  bring  my  mind  to  the  conclusion  that  this  fatal  step 
will  be  taken.  It  has  been  tmly  said  '"'that  the  legislative  function  is  by  far  the  most 
important  one  in  any  free  government.  It  is  the  supreme  power  of  the  State.  All 
others  are  insignificant  in  comparison  to  it,  inasmuch  as  all  the  others  are  bound  to 
obey  its  will.  The  Executive  is  absolutely  controlled  by  it  in  all  the  details  of  his 
administration.  It  marks  out  the  path  in  which  he  shall  walk.  The  Legislature  can 
appoint  the  judges;  it  can  do  more,  it  can  command  within,  of  course,  constitutional 
limits,  what  they  shall  do  after  they  are  appointed.  All  the  legal  justice  we  get  is 
manufactured  at  the  seat  of  legislation  and  sent  down  in  bulk  to  the  courts,  where  it 
is  distributed  among  the  people  according  to  the  wants  and  merits  of  each  individual. 
The  Legislature  regulates  the  practice  of  the  courts,  makes  and  unmakes  the  rules  of 
evidence  and  furnishes  the  standard  of  decision  for  every  cause.    It  defines  all  public 


18^8 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


offenses  and  supplies  the  remedy  for  every  private  wrong.  The  taxing  power  enables 
them  to  descend  as  deep  as  they  please  into  the  pockets  of  the  people  of  every  class, 
and  it  has  absolute  control  and  appropriates  all  the  revenue  after  it  is  collected. 
What  is  a  still  higher  consideration,  they  are  the  guardians  of  public  morality.  It 
depends  upon  them  whether  virtue  shall  be  promoted  or  vice  or  crime  be  encouraged." 
And  yet,  Mr.  President,  this  body  by  our  decree  is  to  be  told  that  it  must  not  meet 
except  under  certain  contingencies  save  at  intervals  of  four  years. 

In  conclusion,  Mr.  President,  I  would  say  that  never  before  have  I  regretted  more 
than  I  do  on  this  occasion  my  lack  of  power  as  a  speaker,  for  I  should  like  to  present 
this  question  to  you  as  it  appears  to  me.  It  is  fraught  with  great  danger  to  the  Com- 
monwealth and  upon  its  proper  determination  depends,  in  a  large  degree,  the  peace,, 
the  prosperity  and  the  advancement  of  our  dear  old  State.  Bear  in  mind,  gentlemen 
of  the  Convention,  "it  is  good,  also,  not  to  try  experiments  in  Statesi,  except  the  neces- 
sity be  urgent  or  the  utility  evident;  and  well  to  beware  that  it  be  the  reformation  that 
draweth  on  the  change,  and  not  the  desire  of  change  that  pretendeth  the  reformation; 
and  lastly,  that  the  novelty,  though  it  be  not  rejected,  yet  be  held  for  a  suspect;  and, 
as  the  Scripture  saith,  'that  we  make  a  stand  upon  the  ancient  way,  and  then  look 
about  us  and  discover  what  is  the  straight  and  right  way,  and  so  to  walk  in  it.'  " 
(Applause). 

The  question  having  been  taken,  the  result  was  announced —  ayes,  38;  noes,  37 — 
as  follows: 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Boaz,  Bouldin,  Bristow,  Brooke,  Brown, 
Cameron,  P.  W.  Campbell,  Davis,  Dunaway,  Earman,  Eggleston,  Epes,  Fletcher,  Flood, 
Garnett,  Glass,  B.  T.  Gordon,  Hamilton,  Hancock,  Hatton,  Ingram,  Claggett  B.  Jones, 
Keezel,  Kendall,  Lincoln,  Mundy,  O'Flaherty,  Pedigo,  Portlock,  Rives,  Thorn,  Waddill, 
Watson,  Wise,  Wysor  and  the  President — 38. 

Noes — Messrs.  Ayers,  Barbour,  Barham,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Clar- 
ence J.  Campbell,  Carter,  Cobb,  Crismond,  Fairfax,  Gillespie,  James  W.  Gordon,  Gregory, 
Gwyn,  Hooker,  Hunton,  Lawson,  Lovell,  Marshall,  Mcllwaine,  Meredith,  Miller,  Moncure, 
R.  Walton  Moore,  Orr,  Parks,  Phillips,  Robertson,  Stuart,  Summers,  Tarry,  Thornton, 
Turnbull,  Walter,  Wescott,  Willis  and  Withers— 37. 

The  same  pairs  as  upon  the  last  vote  were  announced,  except  that  the  first  named 
voted  in  the  negative. 

The  amendment  was  agreed  to. 

Mr.  O'Flaherty:  I  move  to  reconsider  the  vote  by  which  the  amendment  of  the 
gentleman  from  Appomattox  was  adopted. 

Mr.  Parks:  Mr.  President,  I  hope  the  motion  to  reconsider  will  not  be  voted  down, 
but  that  it  will  prevail,  and  that  we  may  consider  this  matter.  It  is  a  most  important 
question.  I  never  raise  my  voice  if  there  is  a  decided  majority  against  me,  but  here 
an  important  question  has  been  decided  by  only  one  vote,  a  vote  of  38  to  37,  the  ques- 
tion being  whether  the  Legislature  shall  meet  once  every  two  years  or  once  every  four 
years. 

Mr.  President,  in  my  section  of  the  State  one  argument  made  before  the  people  in 
behalf  of  the  assembling  of  a  Constitutional  Convention  was  that  the  affairs  of  the 
State  were  being  administered  at  toO'  great  an  expense,  and  that  the  Constitution  could 
be  so  changed  as  to  save  the  people's  taxes.  It  has  been  said  in  advocacy  of  biennial 
sessions  that  at  one  time  we  had  annual  sessions,  and  they  were  changed  to  biennial 
sessions  on  account  of  the  impoverished  condition  of  the  treasury.  Whether  there  were 
other  reasons  for  changing  it  or  not  does  not  matter;  but,  accepting  as  true  the  state- 
ment that  the  change  was  made  because  of  the  impoverished  condition  of  the  treasury, 
I  ask  if  any  harm  has  resulted  to  the  Commonwealth  of  Virginia  by  that  change,  and  by 
the  failure  of  the  Legislature  to  meet  every  year.  The  Legislature  has  assembled 
every  two  years.  The  wants  and  wishes  of  the  people  have  been  met  and  consum- 
mated.   There  has  been  a  sufficiency  of  laws  enacted.    The  rights  of  the  people  have 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1849 


been  protected  and  subserved.  Now,  then,  when  we  want  to  change  to  four  years, 
the  very  same  argument  is  made  that  was  used  against  the  change  to  two  years,  and 
yet  by  the  change  to  four  years  we  could  save  the  people  a  large  amount  of  money. 
What  the  people  want — 

Mr.  Flood:    How  much  money  will  you  save? 

Mr.  Parks :  We  will  save  certainly  the  amount  of  money  that  is  expended  by  the 
Legislature  in  one  session,  if  it  meets  every  four  years. 

■What  the  people  demand  is  a  reduction  of  taxation  and  a  lessening  of  their  bur- 
dens. If  we  can  lop  off  even  $30,000  here,  and  $10,000  there,  we  accomplish  the  desired 
result  and  relieve  the  people  of  taxation.  If  biennial  sessions  be  sufficient,  if  the 
interests  of  the  people  are  attended  to  properly  by  biennial  sessions,  we  can  go  far  in 
the  march  of  progress  and  answer  the  demands  of  the  press  and  of  the  people  which 
have  come  up  from  all  over  the  State.  Even  since  I  have  taken  any  interest  in  politics 
I  have  seen  in  the  press  of  the  State,  through  its  editorials,  and  through  communica- 
tions from  correspondents,  the  statement  that  the  best  thing  the  Legislature  can  do 
is  to  adjourn  and  go  home.  We  have  too  much  legislation.  A  law  is  proposed,  and 
before  it  can  be  tried,  before  you  can  see  whether  it  is  wise  and  politic,  another  Legis- 
lature assembles  and  goes  to  work  to  amend  that  law  and  goes  to  tinkering  with  the 
Code  until  a  Philadelphia  lawyer  does  not  know  what  the  law  is. 

Then,  again,  while  the  proposition  is  to  reduce  the  session  to  sixty  days,  there  is 
coupled  with  it  the  right  and  power  of  the  Legislature  to  extend  the  session  for  twenty 
days.    What  is  that  for? 

Mr.  Flood:    The  same  power  is  given  in  the  report  of  the  committee. 

Mr.  Parks:  Yes.,  sir;  that  is  what  I  say.  I  say  it  is  given  in  the  committee  report, 
and  having  only  sixty-day  sessions,  in  nine  cases  out  of  ten  it  will  be  extended  to  ninety- 
day  sessions  because  sixty  days  are  not  sufficient  for  the  Legislature  to  digest  the  work 
and  enact  proper,  sensible  laws. 

Mr.  O'Flaherty:  If  a  pension  law  should  be  fixed  upon  the  State  of  Virginia  to 
appropriate  $300,000  to  the  list,  as  it  seems  to  be  now  in  the  State,  and  which  it  is 
generally  conceded  is  not  a  correct  list,  would  you  be  willing  that  the  treasury  should 
be  so  depleted  for  four  years? 

Mr.  Parks:  No,  sir;  I  would  instruct  the  delegate  from  my  county  to  join  with 
others  and  call  a  special  session  of  the  Legislature. 

Mr.  O'Flaherty:    Then  you  would  have  a  special  session. 

Mr.  Parks:  Yes;  I  would.  There  might  be  pension  laws  and  other  laws  passed 
and  no  necessity  for  an  extra  session ;  but  when  an  extra  session  should  be 
necessary,  I  would  call  it,  even  for  thirty  days,  to  do  whatever  extra  work  might  be 
necessary. 

Mr,  President,  I  do  hope  the  Convention  will  vote  to  reconsider  it  and  that  we 
may  have  this  vote  over  again.  I  do  sincerely  trust  the  Convention  will  not  forego 
the  opportunity  of  relieving  the  people  of  some  of  the  burdens  of  taxation  they  are 
bearing. 

Mr.  Glass:  Mr.  President,  I  would  not  have  a  word  to  say  upon  this  proposition, 
except  that  I  do  believe  from  the  bottom  of  my  heart  that  if  you  reconsider  this  vote  and 
decide  to  have  quadrennial  sessions  of  your  General  Assembly  you  have  sealed  the 
doom  of  your  Constitution,  because  I  believe  you  have  denied  to  the  people  of  the  Com- 
monwealth the  right  of  representative  government. 

The  gentleman  from  Warren  (Mr.  O'Flaherty)  asked  the  member  from  Page  (Mr. 
Parks)  a  very  pertinent  question.  Suppose  we  were  operating  under  this  system 
now.  There  has  been  introduced  in  the  General  Assembly  a  bill  appropriating  $300,000 
for  pensions  under  a  law  which  its  author  admits  is  utterly  defective  and  utterly  dis- 
appointing in  its  results;  a  law  which  it  has  been  shown  has  put  deserters  and  bummers 
and  undeserving  people  on  cur  pension  roll;  a  law  which,  much  to  the  astonishment 
117 — Const.  Deb. 


1850  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

of  the  brave  old  soldier  who  drafted  it,  has  increased  our  pension  roll  from  2,000  to 
10,000  in  fifteen  months. 

I  cite  this  as  an  instance.  Suppose  the  appropriation  of  $300,000  were  to  a  less 
worthy  object,  and  the  argument  would  be  the  same.  Now,  suppose  that  proposition 
is  enacted  into  a  law,  as  seems  very  likely,  and  is  approved  by  the  Governor.  Are  we 
to  be  told  that  $1,200,000  of  the  people's  money  shall  be  taken  from  the  treasury  before 
we  are  given  an  opportunity  to  stop  that  waste  and  pillage? 

Mr,  R.  Walton  Moore:  Has  the  gentleman  ever  heard,  in  the  history  of  govern- 
ment, that  any  backward  step  has  been  taken  in  the  matter  of  appropriating  money 
for  pension  purposes;  and  does  he  think  that  more  frequent  sessions  of  the  Legislature 
would  bring  about  the  undoing  of  the  evil  that  has  been  done? 

Mr.  Glass.:  Yes,  sir;  I  believe  when  the  Confederate  soldiers  of  Virginia  put  money 
into  the  treasury  rather  than  take  it  out;  I  believe  when  the  tax-payers  of  the  Com- 
monwealth realize  that  the  soldier  who  drew  that  bill  concedes  its  inefficiency;  I  believe 
when  the  facts  are  put  before  them  they  will  visit  stern  indignation  upon  the  people 
who  make  this  assault  upon  their  public  treasury;  and  yet,  in  order  to  save  the  paltry 
sum  of  $7,000  a  year,  we  must  have  our  treasury  raided  of  $1,200,000  in  a  period  of  four 
years. 

Mr.  Robertson:  They  would  pass  some  other  bad  law  to  take  the  place  of  the* one 
they  repealed. 

Mr.  Glass:  If  they  pass  another  bad  law  let  the  people  visit  their  indignation 
upon  them  for  that  and  send  somebody  there  who  will  repeal  the  bad  law. 

Mr.  President,  I  will  not  take  any  more  time  of  the  Convention.  I  just  cannot 
discuss  it  deliberately  and  calmly,  as  the  subject  merits  discussion.  It  is  absolutely 
so  abhorrent  to  my  notion  of  the  right  and  proper  thing  that  I  cannot  discuss  it  in  the 
right  spirit  and  in  temperate  language.  I  believe  it  just  means  the  doom  of  this  Consti- 
tution to  put  that  provision  in  there,  to  lock  the  doors  of  this  capitol  in  the  face  of 
the  people  and  let  them  come  in  once  in  four  years  to  say  what  bad  legislation  shall 
be  repealed  and  what  good  legislation  shall  be  enacted,  and  all  to  save  the  pitiful  sum 
of  $7,000  a  year. 

Mr.  President,  I  do  sincerely  hope  that  the  Convention  will  decline  to  pass  by,  will 
decline  to  consider,  and  let  us  settle  this  question  once  for  all.  If  the  Constitution  is 
to  be  beaten  let  us  beat  it  here  and  now. 

Mr.  Carter:  Mr.  President,  it  seems  to  me  that  there  is  in  some  quarters  a  mis- 
apprehension as  to  the  question  at  issue  between  the  different  parties  who  have  divided 
on  this  floor  on  the  question  now  before  us.  It  is  argued  by  persons  who  are  proposing 
what  we  call  quadrennial  sessions  that  if  the  report  of  the  committee  is  adopted,  to 
use  the  emphatic  language  of  the  gentleman  from  Lynchburg  (Mr.  Glass),  the  doors 
of  the  capitol  will  be  locked  in  the  faces  of  the  people  for  four  long  years,  and  what- 
ever need  there  may  be  for  legislation  they  will  be  Without  redress  and  without  remedy. 
I  say,  Mr.  President,  that  that,  to  my  mind,  is  an  entire  misconception  of  the  situation 
here. 

You  will  see  by  an  examination  of  the  report  that  by  a  majority  of  the  Legislature, 
a  majority  of  one  of  the  Legislature,  can  assemble  themselves  together,  even  if  the 
Governor  does  not  call  them,  whenever  they  deem  proper.  In  addition  to  that,  the 
Governor  has  the  power  to  call  them.  So  that,  it  seems  to  me,  the  fair  way  to  put 
this  question  is  this:  Shall  there  necessarily  and  arbitrarily  be  a  session  of  the  Legis- 
lature every  two  years,  whether  there  be  any  need  for  it  or  not,  or  shall  there  be  a 
session  once  in  four  years,  anyway,  and  oftener  if  the  Legislature,  the  people's 
representatives,  deem  it  proper  to  have  it?  Is  there  any  inhibition  against  biennial 
sessions?  No,  sir.  It  is  simply  a  provision  that  if  the  Legislature  themiselves  do  not 
see  fit  to  come  they  need  not  be  forced  to  do  it.    That  is  all. 

So  far  from  the  gentleman's  illustration  demonstrating  the  evils  of  the  plan  pre- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


1851 


sented  by  the  committee,  I  think  it  is  a  striking  example  of  the  value  of  the  plan  now 
in  force.  Our  Governor  called  the  attention  of  the  Legislature  which  met  here  just 
before  Christmas  to  the  fact  that  there  was  a  surplus  in  the  treasury.  The  Legislature 
had  nothing,  or  next  to  nothing,  to  do,  owing  to  the  fact  that  this  body  was  in  session, 
with  its  labors  undetermined.  They  were  confronted  here  with  this  state  of  affairs: 
A  Legislature  in  session  and  nothing  to  do,  or  next  to  nothing  to  do,  and  they  did  what 
they  will  always  do  when  that  is  the  case — they  put  their  hands  into  the  treasury  and 
scattered  the  surplus  to  the  four  winds  of  heaven. 

Mr.  Flood:  I  would  like  to  ask  the  gentleman  whether  there  was  any  bill  passed 
appropriating  any  money. 

Mr.  Carter:  I  went  farther  than  I  intended.  They  started  to  do  it,  and  it  went 
through  the  Senate,  but  it  has  not,  thank  God,  gone  through  the  House,  and  I  hope  it 
never  will. 

Mr.  Flood:  I  think  the  gentleman  is  mistaken.  It  has  not  gone  through  either 
body. 

Mr.  Carter:  Perhaps  I  am  mistaken  altogether.  But  it  started,  and  it  looked  as 
if  it  would  go  through. 

Mr.  Glass:    I  wish  to  say  that  he  is  right  in  what  he  said.    It  did  pass  the  Senate. 

Mr.  Flood:  If  the  gentleman  will  permit  me,  I  insist  that  I  am  right.  No  appro- 
piation  bill  ever  passed  the  Senate. 

Mr.  Carter:  I  do  not  care  whether  you  gentlemen  are  right  or  wrong  in  relation 
to  that.  You  are  both  wrong  on  this  proposition,  and  that  is  the  proposition  before 
the  Convention.  (Applause.)  Mr.  President,  I  had  almost  finished.  I  say  if  the  re- 
port of  the  committee  is  adopted  on  other  points,  which  I  suppose  it  will  be,  besides 
this  one  which  is  now  in  dispute,  there  will  be  little  or  nothing  for  the  Legislature  to 
do  compared  with  what  they  now  have  before  them,  and  if  you  require  them  to  come 
here  once  in  two  years  they  will  be  confronted  with  the  situation  that  confronted  the 
Legislature  just  before  Christmas.  They  will  be  here  with  nothing  to  do  except  to  get 
into  mischief.  (Laughter.)  There  is  a  couplet,  with  which  all  of  us  are  familiar,  that 
could  be  applied  to  the  Legislature  as  well  as  to  other  people. 

"The  devil  finds  some  mischief  still 
For  idle  hands  to  do."  (Laughter.) 

i\Ir.  Flood:  I  want  to  call  the  gentleman's  attention  to  the  fact  that  his  associate 
from  Page  (Mr.  Parks)  was  arguing  against  this  proposition  on  the  ground  that  the 
Legislature  would  not  have  time  to  do  what  was  before  them  in  sixty  days. 

Mr.  Carter:  I  doubt  not  there  are  more  reasons  for  the  position  I  take  than  the 
one  I  give,  that  the  proposition  here  is  to  force  the  Legislature  into  session  every 
two  years  whether  there  is  anything  for  them  to  do  or  not,  and  whether  they  think 
there  is  anything  for  them  to  do  or  not.  "WTiat  more  liberal  provision  can  you  have 
than  now  exists — that  if  the  Legislature  thinks  it  proper  to  come  they  can  come.  It 
is  left  to  them.  "You  may  come  every  two  years;  you  must  come  every  four  years." 
The  proposition  is  they  must  come  every  two  years  whether  any  necessity  exists  or  not. 

Those  are  the  two  views  of  the  proposition  before  you  on  which  you  must  decide. 
"You  may  come  whenever  you  chose  to  come,  whenever  the  public  interests,  in  your 
opinion,  made  it  proper  for  you  to  come,  or  whenever  the  Governor  says  that  you  shall 
come,"  but  do  not  make  them  come  every  two  years,  when  there  is  nothing  for  them  to 
do  and  when  they  do  not  want  to  come. 

Mr.  Eggleston:  ^^en  the  Legislature  meets  here  in  quadrennial  session  would 
they  not  be  obliged  to  pass  the  appropriation  bills  for  four  years? 

Mr.  Carter:    I  suppose  so. 

Mr.  Eggleston:  If  they  met  here  in  quadrennial  session  would  not  they  have  to 
elect  all  the  United  States  Senators  whose  terms  would  expire  before  the  beginning 
of  the  next  quadrennial  session? 


1852  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Mr.  Carter:  I  suppose  so,  and  I  will  say,  Mr.  President,  that  I  have  not  given 
much  consideration  to  the  point  of  where,  when  or  who  shall  be  elected  United  States 
Senator.  That  matter  ought  not  to  have  anything  to  do  with  this  question,  and,  so  far 
as  I  am  concerned,  it  has  nothing  to  do  with  it. 

Mr.  Kendall:  Mr.  President,  it  seems  to  me  that  undoubtedly  the  logic  of  the 
position  is  that  biennial  sessions  should  carry  biennial  elections.  I  listened  with 
hearty  accord  to  what  was  said  by  the  gentleman  from  Lynchburg  (Mr.  Glass),  but  it 
seemed  the  real  inwardness  of  that  argument  v/as  that  a  Legislature  should  be 
allowed  to^  come  back  once  in  two  years,  in  order  that-  it  might  mend  its  mistakes. 
That  does  not  seem  to  me  to  go  to  the  whole  difficulty,  nor  does  it  leave  with  the  proper 
tribunal  the  mending  of  the  mistakes.  A  Legislature  may  make  mistakes  by  accident, 
because  they  have  not  duly  and  properly  considered  the  subject  before  them,  or  they 
may  make  rhistakesi  because  they  are  elected  in  such  a  manner  as  that  their  will  is  not 
the  will  of  the  people.  It  should  be  left  with  the  people  to  correct  the  mistakes  which 
the  Legislature  makes  on  occasions  of  that  kind.  It  is  true  a  Legislature  may  come 
here  and  pass  some  such  legislation  as  has  been  referred  to  by  gentlemen  as  having 
been  attempted  in  this  last  session.  It  is  also  true  that  a  Legislature  may  be  brought 
here  in  some  political  revulsion  and  may  then  commit  mistakes,  which  nobody  but  the 
people  can  correct,  because  if  brought  back  a  second  time  they  would  but  re-assert 
the  mistake  which  they  had  first  made. 

That  brings  us  back  to  the  fact  that  there  is  nothing  but  an  appeal  to  the  people 
for  the  correction  of  mistakes  which  Legislatures  make.  It  brings  usi  back  to  the  first 
great  principle  of  republican  government,  that  it  is  for  the  people  to  correct  their  mis- 
takes, and  not  for  their  agents,  who  have  proved  false  and  fatal  in  the  mistakes  they 
have  made. 

It  is  a  curious  ^proposition  to  me  that  we  should  elect  a  Legislature,  or  give  them 
a  second  session,  in  order  that  they  may  correct  the  mistakes  which  they  make.  It 
seems  to  me  you  are  relieving  them  from  responsibility  to  the  people,  which  is  of  the 
very  essence  of  a  republican  government.  It  seems  to  me  you  are  denying  the  right 
of  the  people  of  passing  upon  that  very  great  question  of  republican  government,  the 
control  of  their  representatives  and  the  election  of  new  members  in  the  place  of  those 
who  have  been  recreant  to  the  trust  committed  to  them. 

Gentlemen  will  preceive  that  by  biennial  sessions  and  quadrennial  elections  not 
one  cent  will  be  saved.  We  all  know  we  are  compelled  to  have  biennial  sessions  for 
the  election  of  members  of  the  House  of  Representatives,  and  there  is  no  reason  why 
any  man  who  is  to  be  elected  to  the  Legislature  cannot  be  elected  at  the  time  of  the 
congressional  election.  So  that  not  one  cent  is  to  be  saved,  and  yet  the  people  are  to 
be  denied  the  right  of  passing  upon  the  faithfulness  or  unfaithfulness  of  their  servants. 
I  say  the  logic  of  the  position  is  undoubtedly,  and  beyond  question,  that  biennial  ses- 
sions should  carry  biennial  elections. 

I  cannot  appreciate  the  position  of  the  gentleman  from  Hanover  (Mr.  Carter).  He 
complains  that  members,  by  being  sent  here  to  biennial  sessionsi,  are  given  nothing  to* 
do,  and  therefore  must  of  necessity  perpetrate  mistakes  and  outrageous  legislation,  and 
yet  when  they  have  made  these  mistakes  he  thinks  they  should  not  be  given  an  oppor- 
tunity to  correct  them.  It  seems  to  me  they  will  have  about  as  much  as  tliey  can  do 
correcting  their  mistakes.  His  idea  seems  to  be  that  a  Legislature  is  given  to  nothing 
but  making  mistakes,  whereas,  if  he  is  correct,  they  will  have  their  hands  full  in  cor- 
recting the  mistakes  they  make. 

Mr.  President,  I  think  it  is  a  question  of  so  much  importance  that  I  agree  with 
the  gentleman  from  Lynchburg,  when  he  says  that  more  than  probably  the  fate  of 
your  Constitution  hangs  upon  the  settlement  of  this  question.  I  trust  we  will  not  make 
the  mistake  of  going  either  to  quadrennial  sessions  or  quadrennial  elections. 

Mr.  Brown:    Mr.  President,  I  will  delay  the  Convention  only  a  very  few  moments. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA. 


1853 


but  1  want  to  call  attention  particularh-  to  the  matter  of  elections  suggested  by  the 
question  of  the  gentleman  from  Charlotte  (^Ir.  Eggleston).  Most  important  elections 
will  necessarily  occupy  a  great  part  of  the  time  of  a  Legislature  elected  quadrennially, 
and  in  addition  there  will  be  the  very  important  matter  of  making  appropriations  for 
four  years.  I  want  to  call  the  attention  of  this  body  to  the  fact  that  under  the  quad- 
rennial system  of  sessions  tliere  will  never  be  a  Legislature  that  will  meet  without 
being  compelled  to  elect  one  United  States  Senator,  or  two  United  States  Senators, 
or  one  United  States  Senator  and  a  full  circuit  court,  or  one  United  States  Senator 
and  a  full  Supreme  Court,  or  two  United  States  Senators  and  a  full  circuit  court,  or 
two  United  States  Senators  and  a  full  Supreme  Court  and  a  ftill  circuit  court.  I  ask, 
gentlemen,  to  recall  how  much  time  has  been  consumed  by  Legislatures  in  the  past 
with  the  election  of  even  one  judge  of  the  Supreme  Court,  and  what  can  we  expect  a 
Legislature  to  accomplish  by  meeting  once  in  four  years,  when  every  session  there 
would  be  one  L'nited  States  Senator  to  elect,  every  alternate  session  two  United  States 
Senators  to  elect,  eveiw  alternate  session  all  the  circuit  court  judges,  and  every  third 
session  all  the  judges  of  the  Supreme  Court,  and  in  addition  all  the  basement  officers 
to  be  elected  at  each  session. 

In  addition  there  would  be  appropriations  to  be  made  each  session  amounting  to 
sixteen  million  dollars,  covering  the  stated  expenses  of  the  four  years  to  follow,  and 
also  allowance  would  have  to  be  made  for  increased  needs  of  State  institutions  arising 
during  so  long  a  time.  This  would  invite  extravagant  estimates  and  cause  great  waste, 
or  really  deserving  cause  might  suffer. 

I  ask,  gentlemen,  to  consider  these  vital  features  before  they  vote  against  biennial 
sessions. 

Mr.  Thom:  Mr.  President.  I  cannot  but  consider  the  proposition  submitted  by  the 
committee  as  a  direct  blow  at  representative  government. 

As  I  understand  the  framework  of  the  Government  of  the  American  Commonwealth, 
it  is  that  the  powers  of  the  people  are  divided  between  three  great  departments — the 
executive,  the  judicial  and  the  legislative.  I  have  heard  a  gi^eat  deal  said  upon  this 
floor  in  favor  of  the  power  of  the  people.  I  have  never  been  willing  to  concede.  Mr. 
President,  that  there  was  any  gentleman  here  more  desirous  of  ser^'ing  the  interests 
of  the  people  than  myself,  and  yet  I  have  not  been  able  at  all  times  to  believe  that  it 
was  to  the  best  interests  of  the  people  to  elect  all  their  officers. 

But  there  is  one  department  of  the  government  that  ought  to  spring  directly  from 
the  people  and  be  absolutely  responsive  to  their  wishes.  That  is  the  Legislative 
Department.  If  the  people  cannot  be  heard  through  their  Legislative  Department,  let 
me  ask,  gentlemen,  to  consider  through  what  department  they  can  be  heard.  If  you 
are  to  deprive  them  of  their  right  to  be  heard  in  this  way  what  does  it  mean?  It 
means  the  destruction  of  government  by  the  people. 

Are  gentlemen  ready  to  take  that  position?  Are  they  willing  to  say  this  Conven- 
tion distrusts  representative  government,  and  is  distrustful  of  the  people?  I  could 
never  be  able  to  obtain  the  consent  of  my  own  judgment  to  the  proposition  so  often 
advanced  here  that  this  Convention  is  representative  of  the  people  in  any  greater  sense 
than  the  Legislature  of  the  State.  ^Tiile  we  are  commissioned  by  the  people  to  do 
certain  things,  and  have  greater  povrers  conferred  upon  us.  it  is  not  true  that  in  the 
jurisdiction  which  is  given  us  we  are  any  more  representative  of  the  people  than  the 
Legislature  in  the  jurisdiction  conferred  upon  them:  and  when  gentlemen  argue  here 
and  vote  here  in  favor  of  distrust  oi  the  Legislature  they  are  arguing  and  voting  against 
the  very  essence  of  poptilar  government. 

To  adopt  this  proposition  would  be  simply  to  vote  against  the  voice  of  the  people 
being  heard  in  their  own  government,  and  as  much  as  I  am  in  favor  of  stability  in  legis- 
lation, as  much  as  I  believe  the  business  interests  of  the  State  should  be  let  alone,  I 
can  never  give  my  adherence  to  the  proposition  that  the  people  should  be  debarred 
from  sending  their  representatives  into  this  hall  at  least  once  every  two  years. 


1854 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  desire,  gentlemen,  to  pause  and  think  what  the  proposition  of  quadrennial  ses- 
sions means.  It  means  the  incarnation  of  a  sentiment  which  has  found  too  much 
expression  on  this  floor,  criticism  and  distrust  of  the  Legislature.  I  am  unwilling  that 
tne  Convention  should  throw  down  that  gauntlet  to  the  people  of  the  State.  I  believe, 
with  the  gentleman  from  Lynchburg  (Mr.  Glass),  it  will  be  destructive  of  the  work  we 
are  attempting  to-  do,  that  nO'  matter  whatever  reform  we  make,  whatever  benefits  we 
confer  in  other  directions,  that  one  thing  will  be  the  seal  of  the  fate  of  the  instrument 
we  may  adopt,  and  I  am  not  prepared  to  say  but  what  that  would  be  a  righteous  judgment, 
because  it  would  be  an  act  of  absolute  arrogance  on  the  part  of  the  Convention.  It 
would  be  an  expression  of  absolute  distrust  of  popular  government  ,  and  would  array  us 
in  no  uncertain  way  against  the  people  of  Virginia. 

I  ask,  gentlemen,  to  pause  and  think  before  they  are  ready  to  take  any  such  step. 
The  position  taken  by  my  friend  from  Hanover  (Mr.  Carter)  is  no  answer  to  this  pro^ 
position.  This  report  puts  any  session  of  the  Legislature  oftener  than  once  in  four 
years  in  two  situations,  either  in  the  hands  of  the  Governor,  who  is  one  man,  or  in  the 
hands  of  the  Legislature,  acting  as  disjointed  units,  without  opportunity  to  come  to 
the  seat  of  government  and  learn  the  condition  of  affairs,  without  being  able  to  confer 
with  each  other  intelligently  and  act  for  the  best  interests  of  the  people. 

Can  representative  government  proceed,  gentlemen,  where  the  people  can  never 
be  heard  in  their  government,  except  once  in  four  years?  Can  members  of  the  Conven- 
tion sustain  themselves  before  the  great  arbitrament  of  the  people  when  they  go  before 
them  and  say,  "we  distrusted  your  Legislature;  we  distrusted  your  power  to  elect  good 
men;  we  wanted  to  disbar  you  from  your  capitol  and  to  prevent  you  from  making  such 
laws  as  you  saw  best;  you  could  not  be  trusted  even  in  the  Legislative  Department  of 
the  government."  Gentlemen,  that  is  what  a  vote  in  favor  of  this  proposition  will 
mean.  It  will  mean  a  gaunlet  to  the  people,  it  will  meaji  a  defiance  of  their  rights,  it 
will  mean  a  blow  at  representative  government. 

Mr.  R.  Walton  Moore:  Mr,  President,  the  gentleman  has  charged  we  are  exhibit- 
ing great  distrust  of  the  people;  that  at  least  we  are  trying  unduly  to  remove  the  legis- 
lative body  away  from  the  people.  He  seems,  to  desire  it  should  be  otherwise.  Our 
impression  is  that  the  present  plan  is  very  far  from  being  a  biennial  plan,  because  the 
Senate  has  to  be  elected  in  two  groups,  and  you  cannot  reconstitute  the  Legislature 
in  less  than  four  years,  and  you  have  to  do  it  in  the  most  inconvenient  and  embarrass- 
ing way,  so  far  as,  the  people  are  concerned,  because  you  only  elect  twenty  Senators 
at  the  same  time.  The  question  is  this;  is  the  gentleman  so  willing  to  put  the  Legisla- 
ture in  the  absolute  control  of  the  people  that  he  will  support  the  proposition  of  the 
gentleman  from  Danville  (Mr.  Withers)  to  elect  the  entire  Legislature,  the  House  of 
Delegates  and  the  Senate  biennially? 

Mr.  Thom:  Mr.  President,  sooner  than  support  the  proposition  of  the  committee 
I  would  support  that  proposition;  but  it  is  a  well  known  principle,  familiar  to  us  all, 
and  imbedded  in  the  deepest  and  most  fundamental  reason,  that  there  should  be  a 
certain  degree  of  stability  in  government.  The  American  Commonwealth  and  the  Con- 
stitution of  the  United  States  have  both  founded  themselves  upon  the  position  that  the 
Senate  is  elected  in  a  different  way,  with  longer  terms,  for  the  purpose  of  being  an 
element  in  the  stability  of  the  government;  and,  while  I  believe  in  biennial  sessions 
and  biennial  elections  of  the  popular  branch  of  the  Legislature,  my  belief  is  that  the 
best  results,  the  most  stable  government,  the  best  interests  of  the  people,  will  all  be 
advanced  by  having  one  branch  of  the  Legislature  more  stable  than  the  other.  If  the 
opportunity  is  given  to  me  I  shall  vote  to  retain  the  present  system,  because  I  believe 
that  to  be  to  the  best  interest  of  all  the  people,  and  when  you  have  biennial  elections 
and  biennial  sessions  you  have  a  Legislature  sufficiently  responsive  to  the  voice  of  the 
people. 

Mr.  Robertson:    Mr.  President,  I  would  not  say  another  word  on  this  subject  if  it 


DEBATES  OF  THE  COi^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


1855 


were  not  for  a  statement  that  was  made  by  my  friend  from  Manchester  (Mr.  Ingram), 
in  his  very  able  and  attractive  speech,  with  reference  to  an  argument  that  I  had  the 
honor  to  make  on  this  subject  when  thi&  matter  was  up  in  Committee  of  the  Whole. 

I  respectfully  submit  Mr.  President,  that  my  position  with  reference  to  this  subject 
has  been  totally  misunderstood  by  my  friends  upon  this  floor.  As  for  my  ever 
attacking  the  Legislature  of  Virginia,  no  thought  was  ever  farther  from  my  mind.  I 
submit  that  some  gentlemen  here,  whose  argument  consists  in  saying  we  must  have 
frequent  Legislatures  in  order  to  correct  the  mistakes  of  Legislatures,  have  less  confi- 
dence in  the  Legislature  than  I  have,  who  am  willing  to  wait  four  years  before  we 
change  the  legislation  they  adopt.  The  whole  argument  of  these  gentlemen  who  say 
we  must  have  biennial  sessions  is  that  the  Legislature  cannot  be  trusted,  and  therefore 
we  must  call  them  here  to  correct  their  mistakes. 

Now,  with  reference  to  my  attitude  about  this  matter.  The  gentlemen  here  took 
the  view  that  I  was  criticising  the  Legislature  simply  because  I  replied  to  some  of  the 
arguments  made  upon  this  floor.  Gentlemen  on  the  other  side  were  arguing  that  we 
must  have  frequent  Legislatures,  because  the  Legislature  passed  such  good  laws  that 
we  could  not  wait  for  them,  that  we  must  have  them  as  soon  as  we  could  get  them; 
and  I  undertook  to  show  the  instances  of  the  good  laws  they  cited  were  very  far  from 
being  good,  and  others  were  perfectly  useless.  One  of  them,  I  believe,  we  waited  for 
about  a  thousand  years. 

Now,  sir,  my  attitude  about  this  matter  is  simply  this — 

Mr.  Flood:  Does  not  the  gentleman  think  this  Convention  has  passed  some 
ordinances  that  are  not  wise? 

Mr.  Robertson:  Yes,  sir,  I  have  just  as  much  confidence  in  the  Legislature  as  I 
have  in  this  body.  (Laughter.)  I  believe  I  have  more  confidence  in  the  Legislature 
than  any  of  you  gentlemen  who  have  been  in  it. 

My  whole  argument,  Mr.  President — and  I  want  to  reiterate  it  in  order  to  put 
myself  right,  and  not  because  I  think  I  can  change  a  single  vote  in  this  body — is  that 
the  whole  thing  is  a  question  of  procedure.  It  is  not  depriving  the  people  of  any  power 
they  have.  It  is  simply  a  question  of  the  time  when  their  General  Assembly  shall  meet. 
The  argument  of  the  gentleman  from  Norfolk  (Mr.  Thom),  and  other  men  who  take 
the  view  th^t  we  are  depriving  the  people  of  any  power,  is,  in  my  humble  judgment, 
fallacious.  The  same  argument  could  be  made  and  reduced  to  an  absurdity,  that  we 
ought  not  to  deprive  them  of  meeting  here  of tener  than  once  in  two  years ;  that  we  ought 
to  go  back  and  allow  them  to  meet  every  month,  as  a  city  council  does. 

I  respectfully  submit  the  other  counter-question  they  ask  here  so  often  is  not  a 
proper  question,  and  does  not  cut  any  figure  in  this  matter. 

Mr.  Flood:  I  was  going  to  ask  whether,  at  any  time  the  people  have  had  an  oppor- 
tunity to  pass  upon  this  subject,  they  have  fixed  sessions  less  frequently  than  twa 
years? 

Mr.  Robertson:  I  do  not  know  anything  about  that,  but  my  humble  judgment  is 
that  the  people  do  not  take  any  interest  in  this  matter,  and  that  if  you  did  not  have  a 
Legislature  for  ten  years  they  would  not  know  anything  about  it,  nor  care  anything 
about  it.  It  is  only  when  the  candidates  run  around  worrying  the  people  and  begging 
them  to  vote  for  them  that  they  ever  think  about  the  Legislature.  (Laughter  and 
applause.) 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow, 
Friday,  January  17,  1902,  at  10  o'clock  A.  M. 


FRIDAY,  January  17,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 

Prayer  by  Rev.  G.  Otis  Mead,  D.  D.,  of  Richmond. 


1856 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTIOX  OF  VIRGINIA. 


LEGISLATIVE  DEPARTMENT. 

The  President:  The  unfinished  business  this  morning  is  the  report  of  the  Com- 
mittee on  the  Legislative  Department,  and  the  pending  question  is,  on  the  motion  of 
the  gentleman  from  Fairfax  (Mr.  Moore)  to  pass  by  the  motion  of  the  gentleman  from 
Warren  (Mr.  O'Flaherty)  to  reconsider  the  vote  by  v^hich  the  amendment  of  the  gentle- 
man from  Appomattox  (Mr.  Flood)  to  Section  7  was  adopted. 

The  question  having  been  taken,  the  result  was  announced — ayes,  30;   noes,  42. 

The  motion  to  pass  by  was  rejected. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Warren  (Mr. 
O'Flaherty)  to  reconsider  the  vote  by  which  the  amendment  of  the  gentleman  from 
A-ppomattox  was  adopted. 

The  question  having  been  taken,  the  result  was  announced — ayes,  27;  noes  43. 

The  motion  to  reconsider  was  rejected. 

On  motion  of  Mr.  Withers  the  vote  by  which  Section  3  was  adopted  was  recon- 
sidered. 

The  President:    The  question  recurs  on  the  adoption  of  Section  3. 

Mr.  Withers:  Mr.  President,  I  desire  to  offer  an  amendment  to  strike  out,  in  line 
3,  the  word  "four,"  and  insert  in  lieu  thereof  the  word  "two."  I  believe  I  can  explain 
in  two  minutes  why  I  offer  that  amendment.  As  is  known  to  gentlemen  of  the  Con- 
vention I  voted  for  quadrennial  sessions.  Had  that  proposition  been  maintained  I 
should  have  voted  for  quadrennial  elections,,  but  as  we  have  decided  on  biennial  ses- 
sions, and  as  I  believe  that  popular  government  and  the  rights  of  the  people  in  getting 
into  their  capitol  are  maintained  not  by  frequent  sessions  of  the  General  Assembly, 
but  by  a  frequent  return  of  the  members  of  the  General  Assembly  for  approval  or  dis- 
approval, for  election  or  rejection,  I  believe  the  election  should  correspond  with  the 
sesision;  and  I  offer  this  amendment  in  order  that  what  I  believe  to  be  the  misfortune 
of  our  Legislature,  to-wit,  hold-over  Senators  or  electing  Senators  in  groups,  may  be 
done  away  with,  so  that  the  entire  Senate  may  be  elected  with  the  entire  House  every 
session,  and  that  there  may  come,  fresh  from  the  people,  in  order  that  representative 
government  may  be .  retained  unimpaired,  forty  new  Senators  as  well  as  one  hundred 
new  members  of  the  House  of  Delegates.  As  I  stated  before,  I  believe  that  representa- 
tive government,  if  it  is  maintained  at  all  by  frequency  of  session,  is  maintained  at  all 
by  frequency  of  election  of  the  members  of  the  two  houses  composing  the  General 
Assembly,  rather  than  by  the  frequency  of  sessions  held  under  those  elections.  I 
hope  I  make  myself  plain  on  that.  The  sole  purpose  for  which  I  offer  this  amendment 
iS)  that  the  members  of  the  Senate  may  all  be  elected  at  the  same  time  that  members 
of  the  House  are  elected,  and  that  the  sessions,  having  been  made  biennial,  we  shall 
have  a  full  and  entirely  new  General  Assembly  at  each  session  thereof,  and  not  groups 
of  Senators  selected  every  four  years. 

Mr.  Ayersi:  Mr.  President,  I  move  to  amend  the  amendment  of  the  gentleman  by 
striking  out  all  of  Section  3  after  the  word  "members" — that  is,  after  the  first  sentence — 
and  inserting  "they  shall  be  elected  for  the  term  of  four  years." 

Mr.  Flood:  Mr.  President,  as  I  understand  the  proposition  of  the  delegate  from 
Wise  (Mr.  Ayers)  it  is  identically  the  same  as  the  present  Constitution,  that  the  Senate 
is  to  be  elected  every  four  years,  but  in  two  different  groups,  half  of  them  every 
two  years,  exactly  as  it  is  now.  The  proposition  of  the  delegate  from  Danville  (Mr. 
Withers)  is  to  elect  the  forty  Senators  every  two  years,  so  that  when  the  Legislature 
is  elected  all  the  one  hundred  and  forty  members  of  the  Legislature  will  have  been 
elected  at  the  same  time.    There  will  be  no  hold-over  Senators. 

Mr.  President,  I  think  that  to  adopt  the  amendment  of  the  delegate  from  Danville 
would  be  a  dangerous  experiment.  I  do  not  understand  why  gentlemen  should  come 
here  and  desire  to  put  into  the  Constitution  provisions  that  have  never  been  demanded 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGIXIA. 


1857 


by  any  portion  of  the  people  of  the  Commonwealth.  I  do  not  suppose  that  proposition 
has  been  discussed  by  a  hundred  men  in  the  State  of  Virginia.  It  has  never  before 
been  mentioned  here.  Ever  since  the  foundation  of  the  State  there  has  been  a  Senate 
composed  of  members  elected  at  two  different  periods,  so  that  half  of  the  Senators 
came  in  at  one  time  and  a  half  of  them  at  another  time.  There  have  been  times,  Mr. 
President,  when  that  provision  in  the  Constitution  of  Virginia  has  saved  the  Common- 
wealth from  untold  evils.,  saved  it  from  a  domination  that  it  would  have  taken  years  to 
throw  off.  I  allude  to  the  session  of  1881-1882,  when,  but  for  the  stand  made  by  three  - 
hold-over  Senators  and  one  new  Senator,  all  the  measures  advocated  by  General 
Mahone's  caucus  would  have  become  the  law  of  the  Commonwealth,  and  gentlemen  who 
are  familiar  with  that  period  of  our  history  know  that  if  that  had  been  the  case  the 
people  of  Virginia  would  have  been  prostrate  upon  their  backs  under  the  domination 
and  control  of  Mahone  for  years  to  come,  or  possibly  until  they  resorted  to  revolution. 

Now,  sir,  what  good  can  come  from  this,  innovation?  ^Miere  has  there  been  any 
demand  for  it?  Vliy  should  we  encumber  our  Constitution  with  provisions  that  may 
make  it  unpopular,  that  may  array  the  conservative  element  of  the  Commonwealth 
against  it  and  force  them  to  go  to  the  polls  and  vote  down  the  Constitution  when  it  is 
submitted  to  the  people, -or  if  it  is  not  submitted  to  them,  may  induce  them  to  force 
their  Legislature  to  bring  about  a  repeal  of  various  provisions? 

Mr.  President,  I  have  been  an  earnes-t  advocate  of  a  Constitutional  Convention  for 
the  past  six  or  seven  years.  I  have  never  advocated  the  assembling  of  a  Convention 
on  the  grounds  upon  which  the  gentleman  from  Danville  advocated  it,  because  I  have 
never  believed  that  the  governmental  affairs  of  Virginia  were  administered  in  an  ex- 
traordinarily extravagant  way.  I  have  never  believed  that  this  Convention  could 
reduce  the  State  expenses  very  materially,  but  I  have  been  in  favor  of  a  Constitutional 
Convention  for  the  purpose  of  relieving  the  people  of  the  Commonwealth  of  the  burden, 
the  incubus  and  curse  of  an  unlimited  negro  suffrage.  I  propose  to  support  the  Con- 
stitution if  it  contains  an  ethcient  suffrage  plan,  whatever  else  it  has  in  it.  There  are 
many  things  that  have  already  been  incorporated  in  the  Constitution  of  which  I  do  not 
approve,  many  things  against  which  I  would  have  liked  to  raise  my  voice,  but  I  did  not 
care  to  do  anything  that  might  tend  to  help  defeat  the  Constitution,  because  I  hoped, 
and  I  still  hope,  the  patriotism  and  the  wisdom  of  this  body  can  give  the  people  of  the 
State  an  efficient  suffrage  provision.  I  think,  sir,  this  proposition  would  array  a  con- 
siderable element  of  the  people  of  Virginia  against  our  Constitution. 

It  is  stated  in  one  of  the  morning  papers  that  the  real  issue  in  the  contest  against 
quadrennial  sessions  was  to  retain  in  the  Constitution  this  provision  for  hold-over 
Senators,  and  the  basis  of  the  writer's  opinion  upon  that  question  was  some  remarks 
that  I  made  here  yesterday.  I  want  to  say,  Mr.  President,  that  I  never  thought  of  this 
proposition.  It  never  occurred  to  me  that  with  biennial  sessions  and  biennial  elections 
the  members  of  this  Convention  would  vote  down  the  hold-over  Senators  or  that  such 
a  proposition  would  be  seriously  contended  for. 

I  do  not  regard  this  as  anything  like  as  important  a  matter  as  the  question  of  bien- 
nial sessions  or  the  question  of  biennial  elections,  but  I  do  regard  it  as  a  matter  of  im- 
portance: and  I  say,  why  make  this  change?  "V^Hiat  is  there  in  the  past  history  of  the 
Virginia  Legislature  to  justify  the  Convention  in  changing  its  Constitution  at  this  time? 
T\Tiat  would  be  the  sense  in  having  a  Senate,  if  it  is  elected  for  two  years  only,  if  it 
is  elected  at  the  same  time  that  the  House  of  Delegates  is  elected?  '^Tiy  not  give  all 
the  legislative  power  to  one  single  body  of  one  hundred  men  and  save  that  much  to  the 
tax-payers  of  Virginia?  There  can  be  no  reason,  no  logic  in  it.  A  division  of  the  sena- 
tors into  two  groups  makes  a  conservative  element  in  our  Legislature,  and  I  have 
pointed  out  a  time  in  the  history  of  our  State  when  this  conservatism  served  the  people 
of  Virginia  well. 

I  say,  sir,  there  has  never  been  in  the  history  of  the  Legislature  of  Virginia  any- 


1858  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 

thing  to  justify  the  Convention  in  undertaking  to  change  its  Constitution.  It  has  an 
honorable  history.  They  are  the  representatives  of  the  people,  and  for  the  past  ten  or 
fifteen  years  they  have  represented  the  very  will  of  the  people  in  both  of  these  bodies, 
except,  possibly,  upon  one  or  two  questions.  When  the  Democratic  party,  the  true 
representatives  of  the  people  of  Virginia,  came  into  power  in  these  halls,  we  found  an 
unsettled  debt,  a  state  of  chaos,  almost,  in  the  Commonwealth.  In  the  period  of  fifteen 
years  ensuing  all  that  has  been  reversed.  Your  debt  is  settled.  Prosperity  is  traveling 
at  a  fast  gait  in  the  whole  Commonwealth.  Within  the  period  mentioned,  leaving  out 
the  increase  of  revenue  from  real  and  personal  estate,  which  cannot  properly  be  ac- 
credited to  the  Legislature,  leaving  out  the  increase  of  revenue  from  the  poll-tax,  the 
revenues  in  the  Commonwealth  have  increased  $374,000  per  year.  The  Legislature  of 
Virginia  is  entitled  to  the  credit  of  bringing  into  the  treasury  of  the  Commonwealth 
$374,000  a  year  this  year  that  did  not  come  into  its  treasury  fifteen  years  ago. 

They  have  done  that,  sir,  upon  the  basis  of  a  reduction  of  taxation,  for  as  the 
Democratic  party  came  into  power  the  rate  of  taxation  in  Virginia  was  decreased 
from  fifty  cents  to^  forty  cents  on  the  one  hundred  dollars'  worth  of  property.  They  have 
increased  your  revenue  $374,000,  and  they  have  done  it,  Mr.  President,  as  I  have  said, 
on  a  basis  of  decreased  taxation.  They  have  done  it  by  wise  legislation,  by  bringing  under 
the  tax-gatherer's  supervision  subjects  of  taxation  which  were  escaping  their  just  and 
honest  burden  of  government,  by  imposing  taxes  upon  railroads  that  had  theretofore 
escaped  taxation,  upon  telegraph  companies,  upon  express  companies,  upon  banks^  upon 
charters,  upon  various  subjects  that  up  to  the  time  were  escaping  their  just  and 
equitable  taxation. 

Who  can  complain  of  the  Legislature  for  doing  that?  I  remember  that  some 
time  ago  the  gentleman  from  Brunswick  said  his  people  did  not  want  a  Legislature 
that  brought  in  new  subjects  of  taxation.  I  venture  to  say  that  if  the  gentleman  will 
consult  his  people  he  will  find  they  would  not  disapprove  of  the  taxing  of  a  single 
subject  on  which  the  Virginia  Legislature  has  imposed  taxation  during  the  past  fifteen 
years. 

Mr.  President,  that  has  been  done  under  the  present  system.  Why  change  it? 
What  argument  has  been  used  here  in  favor  of  a  change?  What  good  can  be  accom- 
plished by  changing  the  constitution  of  any  part  of  the  Legislature  of  Virginia?  It 
has  been  attempted  to  put  the  Legislature  upon  trial  here.  If  the  Legislature  has  done 
its  full  duty,  if,  as  it  is  constituted  at  present,  it  has  measured  up  to  the  expectations 
of  the  people  of  the  Commonwealth,  what  justification  is  there  for  a  change? 

Why,  gentlemen  tell  me  the  Legislature  makes  extravagant  appropriations.  It  is 
true,  Mr.  President,  it  does  make  more  extravagant  appropriations  now  than  it  did 
fifteen  years  ago,  but  it  makes  those  appropriations  because  the  money  is  in  the  treasury 
to  appropriate.  I  would  like  to  ask,  gentlemen,  who  gets  the  benefit  of  these  appropria- 
tions? The  insane  of  the  Commonwealth.  Would  any  gentleman  recommend  the  cut- 
ting down  of  the  increased  appropriations  to  the  unfortunate  insane  of  Virginia?  The 
children  who  attend  the  public  free  schools  get  the  benefit.  During  the  period  to  which 
I  have  alluded  the  appropriations  to  the  public  free  schools  have  been  increased  from 
$600,000  to  $1,000,000  a  year,  an  increase  of  $400,000.  The  gentleman  from  Hanover 
(Mr.  Carter)  says  the  Legislature  comes  here  to  meet  and  puts  its  hand  in  the  treasury 
of  the  Commonwealth.  Does  he  object  to  its  doing  so  for  the  benefit  of  educating  the 
children  in  the  free  schools  of  the  State?  The  institutions  of  higher  education  get  the 
benefit  of  it.  And,  last,  but  not  least,  that  old  hero  in  gray,  with  heart  of  gold,  God 
bless  him,  has  gotten  the  benefit  of  some  of  it;  and  I  want  to  say  right  here,  Mr.  Presi- 
dent, I  am  one  of  those  who  approve  of  the  action  of  the  Virginia  Legislature,  or  the 
Senate,  whichever  it  was,  in  passing  a  joint  resolution  committing  that  body  to  appro- 
priate $300,000  for  the  benefit  of  the  old  soldiers.  We  held  out  to  the  old  soldier  a 
promise  two  years  ago  that  we  would  give  it  fo  him,  but  we  found  there  were  more  of 


DEBATES  OF  THE  COXSTITITIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


1S59- 


them  who  need  assistance  than  we  had  expected,  and  the  money  did  not  go  around,  or 
at  least  but  m  niggardly  sums,  and  almost  every  Democratic  stumper,  from  the  Dem- 
ocratic canaidate  tor  Governor  down,  who  went  upon  the  stump  last  fail  and  appealed 
to  the  people  of  Virginia  to  support  the  Democratic  ticket,  pledged  the  people,  if  they 
returned  a  Democratic  Legislature  here,  and  there  was  sufficient  money  in  the  treasury, 
thai  tliat  deficit  should  be  made  up  to  the  old  soldier,  and  I  am  one  of  those  who  do 
not  believe  m  making  pledges  to  the  people  to  get  their  votes,  and  after  we  have  gotten, 
their  votes  refusing  to  keep  those  pledges. 

Virginia  is  to-day  appropriating  |135jj00  to  the  old  Confederate  soldiers,  $100,000 
of  which  goes  to  him  in  his  home,  $35,000  being  appropriated  for  the  purpose  of 
keeping  up  a  home  in  the  outskirts  of  this  city,  where  decrepit  and  poverty-stricken  old. 
soldiers  can  go,  that  he  may  not  have  to  beg  on  the  curbstone  as  blind  Bartimeus  did, 
but  that  he  may  have  a  home  supported  by  his  mother,  Virginia,  until  he  is  called  hence 
to  home  not  made  with  his  hands,  eternal  in  the  heavens. 

Mr.  Keezell:  If  the  gentleman  will  allow  me  to  interrupt  him,  I  wish  to  say  I 
think  the  aggregate  amount  appropriated  is  $170,000 — $35,000  to  the  Soldiers'  Home  and 
$135, OuO  to  be  distributed. 

Mr.  Flood:    Yes;  I  believe  that  is  it;  $135,000  to  be  distributed  to  them  and  $35,- 

000  to  maintain  the  home. 

My  argument,  Mr.  President,  is  that  there  should  be  no  change  in  the  fundamental 
lav%-  of  the  Commonwealth,  no  change  in  the  constitution  of  a  representative  body  of  the 
people  unless  there  is  some  demand  for  it,  unless  there  is  some  reason  given  for  it. 
Gentlemen  have  argued  against  the  General  Assembly  of  Virginia.  They  have  put 
the  General  Assembly  upon  trial  here,  and  brought  charge  after  charge  against  them 
for  extravagant  appropriations,  and  I  am  showing  where  these  appropriations  have  gone. 

1  desire  to  have  the  gentleman  from  Warren  state  whether  he  disapproves  of  any  of 
these  appropriations? 

Mr.  u  Flaherty:  On  the  contrary.  I  have  always  stood  up  for  the  General  As- 
sembly: but  I  want  you  to  show  us  why  you  could  not  continue  to  do  this  good  thing 
if  you  elect  them  for  two  years?  In  other  words,  do  you  think  that  a  man  who  comes, 
direct  from  the  people  would  not  be  as  responsive  to  the  people  as  if  he  is  in  the 
Senate  for  three  years? 

Mr.  Flood:  I  will  not  repeat  my  argument,  because  I  believe  most  of  the  gentle- 
men here  understand  the  point  I  am  making.  I  say  that  unless  some  reason  is  shown 
here  against  this  radical  change,  this  change  that  has  never  been  discussed  before 
the  Virginia  people,  this  change  that  was  never  heard  of  until  yesterday,  I  venture  to  say, 
by  one  hundred  men  in  the  Commonwealth,  unless  some  strong  and  powerful  argument 
is  made  here,  we  should  not  make  this  change.  It  is  a  safe  thing  to  stand  by  the  old 
landmarks,  unless  some  reason  can  be'  given  to  the  contrary.  Like  the  gentleman  from 
Roanoke  (Mr.  Robertson],  I  believe  because  a  thing  is  old,  that  does  not  make  it  good; 
that  some  change  is  progress,  but  all  change  is  not  progress;  and  unless  some  reason 
can  be  given  why  this  change  should  be  made  there  is  no  justification  on  the  part  of  the 
Convention  in  making  it. 

^Ir.  President,  the  history  of  Virginia  shows  that  the  people  of  the  Commonwealth 
have  approved  the  present  constitution  of  the  Legislature.  Every  time  the  people  have 
passed  upon  this  question  they  have  fixed  two  branches  of  the  Legislature,  and  the 
upper  branch,  the  Senate,  has  been  divided  into  two  groups,  elected  at  different  times. 
In  1S50,  when  the  Constitution  was  submitted  to  the  people  and  ratified  by  them;  they 
made  no  change  whatever  in  the  Constitution  or  in  the  time  of  elections  of  the  body. 
They  went  from  annual  sessions  to  biennial  sessions.  That  seemed  to  be  the  cumula- 
tive wisdom  of  the  people  of  Virginia.  Their  Convention  adopted  that  plan  and  sub- 
mitted it  to  the  people,  and  it  was.  ratified  by  them.  So  it  continued  down  to  the  dark 
days  of  reconstruction,  when  the  scallawag  and  the  carpetbagger  got  control  of  the 


18(30  DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  A^-IRGIXIA. 

State.  They  went  back  then  to  annual  sessions.  When  the  real  people  of  Virginia 
again  gained  control  of  the  State  they  submitted  an  amendment  to  the  people  for  bien- 
nial sessions,  but  there  was  no  suggestion  of  a  change  in  the  constitution  of  the  Legis- 
lature. I  will  say  to  the  gentleman  from  Warren  (Mr.  O'Flaherty)  that  when  a  con- 
Sititutional  provision  has  been  ratified  and  passed  upon  by  the  people  as  frequently  as 
that  has,  unless  there  is  some  powerful  reason  we  had  better  stand  by  that  provision  as 
it  is. 

We  should  frame  a  Constitution,  sir,  with  reference  to  the  characteristics,  the 
temper  and  the  tastes  of  our  people.  There  are  many  things  we  have  already  put  in 
the  Constitution  of  which  they  will  not  approve.  In  the  future  let  us  consult  the  genius, 
the  temperament  and  the  characteristics  of  our  people,  and  let  us  mirror  in  our  organic 
law  their  political  and  social  preference  and  predelictions.  Do  this,  and  give  them  a 
good  suffrage  law,  and  I  believe  the  Constitutibn  will  meet  with  the  approval  of  the 
people  of  Virginia  and  will  last  the  old  State  for  many  years  to  come. 

Mr.  Meredith:  Mr.  President,  I  offer  the  following  substitute  for  the  amendment 
of  the  gentleman  from  Danville  (Mr.  Withers)  and  I  ask  his  attention  as  to  whether 
it  meets  with  his  approbation  and  acceptance. 

The  Senators  shall  be  elected  at  the  same  time  the  members  of  the  House  of  Dele- 
gates are  elected,  and  their  terms  of  ofRce  shall  be  the  same  as  those  of  the  members  of 
the  House. 

Mr.  Withers:  Mr.  President,  if  the  gentleman  offered  that  as  an  amendment  to 
my  amendment  I  am,  perfectly  willing  to  accept  it,  my  object  being  to  get  rid  of  hold- 
over Senators. 

Mr.  Meredith:  I  will  read  it.  I  wish  to  invite  the  attention  of  the  Con'/ention 
to  what  is  the  purport  of  the  amendment.  The  proposed  amendment,  as  suggested  by 
me  and  accepted  by  the  gentleman  from  Danville,  is: 

The  Senators  shall  be  elected  at  the  same  time  that  the  members  of  the  House  of 
Delegates  are  elected,  and  their  terms  of  office  shall  be  the  same  as  those  of  the  members 
of  the  House. 

On  the  other  hand  if  we  should  adopt  the  amendment  offered  by  the  gentleman 
from  Danville,  requiring  that  the  terms  of  the  Senators  shall  be  two  years,  we  would 
necessarily  have  to  make  the  terms  of  members  of  the  House  two  years.  There  are 
two  questions  to  be  decided  by  you.  One  is  as  to  whether  we  shall  have  quadrennial 
elections.  The  second  is  as  to  whether  we  shall  have  the  House  and  the  Senate  elected 
at  the  same  time.  It  may  be  seen  from  the  discussion  which  has  taken  place  that  those 
are  the  two  questions  before  the  Convention.  I  respectfully  submit  they  ought  not  to  be 
embodied  in  an  amendment  which  would  confound  the  two  together  and  prevent  you 
from  voting  on  them  separately. 

By  this  resolution  you  have  an  opportunity  to  vote  on  each  one  of  those  questions 
singly.  This  presents  the  single  issue,  as  to  whether  the  members  of  the  House  and 
the  members  of  the  Senate  shall  be  elected  at  the  same  time  and  for  the  same  term, 
without  bringing  in  the  question  of  the  length  of  the  term.  It  simply  provides  that 
the  members  of  the  House  and  the  members  of  th©  Senate  shall  be  elected  at  the  same 
time.  That  has  been  accepted  by  the  member  from  Danville  (Mr.  Withers).  L  there- 
fore, say  we  shall  have  an  opportunity,  if  we  vote  down  the  substitute  of  the  gentleman 
from  Wise  (Mr.  Ayers),  to  meet  that  issue  distinctly  and  squarely,  as  to  whether  they 
shall  be  elected  at  the  same  time.  Then  we  can  return  to  Section  2  and  decide  whether 
the  terms  of  the  members  of  the  House  and  of  the  Senate  shall  be  for  two  or  four 
years.  We  do  not  confound  the  two  questions.  We  do  not  tie  ourselves  up  with  any 
question  as  to  the  length  of  the  term.  We  simply  declare  by  this  resolution  that  the 
terms  shall  be  the  same. 


DEBATES  OF  THE  COXSTITXTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


1S61 


I  respectfully  submit  we  ought  to  separate  those  questions  and  vote  upon  them.  I 
do  not  propose,  Mr.  President,  to  go  into  any  lengthy  discussion  of  the  matter,  because 
it  has  been  threshed  over  so  often.  In  Committee  of  the  AMiole  it  was  proposed  to 
make  the  terms  of  the  Senators  and  of  the  members  of  the  House  of  Delegates  the 
same,  by  making  each  four  years.  This  will  make  the  terms  of  both  of  them  the  same, 
and  we  can  afterwards  decide  whether  they  shall  be  two  years  or  four  years. 

I  do  not  see,  Mr.  President,  coming'  upon  us  the  great  evil  which  the  gentleman 
from  Appomattox  sees.  I  cannot  see  how  we  are  going  into  any  great  danger  by  saying 
the  people,  who-  have  the  right  to  elect  the  larger  branch,  the  more  popular  branch, 
of  the  General  Assembly,  shall  have  the  opportunity  at  the  same  time  to  express  their 
will  in  regard  to  the  Senators.  It  has  been  said  you  will  sometimes  have  a  question 
that  may  be  dangerous,  although  of  a  popular  nature,  and  that  the  Senate  w-ill  be  a 
check  upon  the  House.  Mr.  Presidenf,  we  cannot  undertake  to  form  our  organic  law 
for  the  purpose  of  meeting  exceptions. 

The  wisdom  of  making  a  law  consists  in  so  framing  it  as  that  you  will  get  the  best 
general  average  of  benefit.  It  is  a  fact  that  the  Senate  can  act  as  a  check.  But  it  can 
also  prevent  not  only  what  the  people  wish,  btit  what  they  have  a  riglit  to  demand.  We 
are  continually  having  held  up  to  us  the  great  protection  that  was  given  to  us  during 
the  Mahone  Legislature.  I  submit  that  if  we  undertake  to  make  the  calculation  we  may 
find  that  off-set  by  the  defeat  of  many  measures,  or  at  least  by  unjust  delay  by  the 
Senate. 

None  of  these  things  are  unmixed  evils;  but  we  ought  to  ascertain,  as  far  as  we 
can.  in  what  way  we  can  get  the  benefits  in  the  long  run.  I  respectfully  submit  if  you 
elect  Legislators  at  the  same  time,  and  the  people  understand  that  they  comprise  the 
members  of  upper  as  well  as  of  the  lower  House,  you  will  have  more  attention  given 
to  elections  of  such  men.  The  more  important  the  election  the  more  attention  will 
be  given  to  it  by  the  people.  You  will  find  they  will  select  the  Senators  with  just  as 
much  care  at  the  time  they  elect  the  members  of  the  House  as  they  now  show  in  elect- 
ing Senators.  Is  it  to  be  presumed  they  show  any  more  care  in  the  election  of  Senators 
because  they  are  separated  into  two  terms,  as  it  were  

Mr.  Glass:  Is  it  not  a  fact  that  in  the  States  of  Ohio,  Michigan,  Georgia  and  other 
great  and  progressive  States  of  the  Union  they  are  elected  at  the  same  time  without 
any  detriment  to  the  ptiblic  service? 

3.1r.  P..  Walton  Moore:  In  reply  to  the  question  of  the  gentleman  from  Lynchburg 
(Mr.  Glass)  I  will  say  he  is  entirely  correct  in  his  stirmise,  I  have  made  some  examina- 
tion and  I  find  that  several  of  the  leading  States  have  adopted  the  provision  which  is 
being  suggested  by  the  gentleman  from  Richmond  (Mr.  Meredith),  among  them  the 
State  of  Georgia.  The  State  of  Alabama,  the  other  day,  adopted  a  similar  provision, 
the  people  of  that  State  accepting  a  Constitution  w^hich  made  the  change  that  is  pro- 
posed here  now. 

Mr.  Meredith:  Thus.  :\Ir.  President,  we  have  precedents  where  similar  proA'isions 
have  been  tried  and  found  acceptable,  which  have  been  so  acceptable  in  some  States 
that  others  have  adopted  them.  Pray  tell  me  why  we  should  not  adopt  something  of 
that  kind,  unless  w-e  are  afraid  of  that  single  bug-bear  that  is  held  up  to-day — that 
sometimes  an  unwise  measure  may  be  passed,  some  rare  instance  may  occur.  I  repeat 
we  must  not  legislate  to  meet  rare  instances,  but  to  obtain  the  best  general  average  of 
benefit. 

This  State  has  been  progressive  upon  this  point.  You  will  find  it  has  been  progres- 
sive upon  the  question  of  sessions  of  the  Legislature,  changing  from  single  sessions  to 
biennial  sessions.  Thus  we  had  biennial  sessions  up  to  the  time  of  the  adoption  of  the 
present  Constitution.  In  addition  to  that,  the  State  has  been  progressive  along  the 
line  of  having  the  Senators  elected  at  the  same  time  with  the  members  of  the  House. 
Originally  only  one-fourth  of  the  members  of  the  Senate  were  elected  at  the  same  time 
with  the  members  of  the  House. 


1862 


DEBATES  OF  THE  COXSTITUTIOI^AL  COOSrVEIsTTION  OF  VIRGINIA. 


Afterwards,  under  the  Constitution  of  1851,  one-half  of  them  were  required  to  be 
■so  elected.  Did  any  great  evil  come  from  that?  Do  you  not  suppose  the  same  argu- 
ment was  used  then  that  is  used  here,  of  the  great  danger  of  allowing  the  members 
of  both  Houses  to  be  elected  at  the  same  time,  or  so  large  a  proportion  of  the  Senate, 
that  it  would  lose  its  power  of  being  a  check  on  the  General  Assembly. 

I  submit,  Mr.  President,  when  we  take  into  consideration  that  many  of  the  members 
of  the  Senate  of  Virginia  are  elected  from  different  districts  from  the  members  of  the 
House,  it  is  evident  that  you  will  get  an  expression  of  opinion  from  a  different  class  of 
voters.  You  will  have  a  right  tb  expect,  and  you  will  get,  an  expression  of  opinion  in 
which  you  can  have  just  as  much  confidence  had  those  members  been  elected  under 
the  present  requirement,  that  they  should  go  out  at  different  periods. 

The  only  argument,  which  T  can  understand,  that  can  be  reasonably  offered  against 
this  proposition  is  the  fact  of  always  having  some  of  the  members  in  the  Senate  who 
have  had  experience  in  that  body  and  who  may  be  a  benefit  in  assisting  and  guiding 
those  who  are  new.  Is  that,  however,  in  practice  and  in  reality  a  true  argument?  Do 
we  not  know  that,  whether  they  go  out  of  otRce  at  different  periods  or  not,  there  are 
always  in  each  branch  of  the  General  Assembly  of  Virginia  a  sufficient  number  of 
'Older  members  to  guide  and  assist  the  body  in  its  deliberations  and  in  its  progress. 

Mr.  Flood:  I  desire  to  call  his  attention  to  the  fact  that  when  the  Senate  of  1899- 
1900  convened  there  were  in  it  only  three  old  members.  I  mean  there  were  only  three 
of  the  newly-elected  members  who  had  been  members  of  the  Senate  before. 

Mr.  Meredith:  You  mean  there  were  only  three  out  of  the  twenty  that  were 
■elected? 

Mr.  Flood:  Yes. 

Mr.  Meredith:    But  suppose  3'ou  had  been  able  to  elect  forty. 
Mr.  Flood:    Then  there  would  have  been  six. 

Mr.  Meredith:  You  cannot  state  it  as  a  fact.  It  is  simply  a  possibility.  You  would 
liave  had  sufficient  to  derive  the  advantage  you  are  presumed  to  receive  by  letting 
them  go  out  at  different  times.  That  is  to  say,  you  would  have  had  a  sufficient  number 
of  the  older  members  there,  experienced  members,  to  assist  in  the  deliberations  of  that 
body.  I  do  not  believe  we  have  ever  built  up  four  Constitutions  upon  the  idea  that  you 
must  check  the  people.  I  do  not  believe  it  has  always  been  the  idea  of  the  Constitu- 
tion-makers of  the  State  that  it  is  necessary  to  look  forward  to  the  fact  that  the  people 
must  be  restrained,  and  that  you  must  have  some  check  upon  them  in  the  deliberations 
of  their  legislative  body;  but  it  is  based  upon  the  idea  that  you  must  have  there  some 
men  of  experience,  some  men  who,  by  having  been  there  before,  are  able  to  assist  them 
in  their  progTess  and  deliberations.  But  I  say  we  know  that  necessity  does  not  really 
exist,  because  we  always  elect  some  of  the  older  members,  and  they  are  there  to  give 
such  assistance  as  may  be  needed. 

In  conclusion,  I  simply  want  to  call  the  attention  of  the  Convention  again  to  these 
two  propositions.  Let  us  vote  on  them  and  meet  them  squarely,  and  let  the  people 
see  how  we  stand  on  them.  The  first  is  whether  the  members  of  the  Senate  and  the 
members  of  the  House  shall  be  elected  at  the  same  time. 

Mr.  Carter:  Mr.  President,  if  it  be  in  order,  and  I  suppose  it  is,  I  move  to  pass 
by  both  the  pending  matters,  the  amendment  of  the  gentleman  from  Danville  (Mr. 
Withers)  and  the  amendment  of  the  gentleman  from  Wise  (Mr.  Ayers),  until  we  finally 
dispose  of  Section  2.  I  do  not  think  we  ought  to  vote  now  as  to  whether  or  not  we 
will  elect  Senators  at  the  same  time  we  elect  members  of  the  House,  and  elect  all  the 
Senators  for  the  same  term,  until  we  find  out  whether  we  are  to  have  quadrennial  or 
biennial  elections.  I  confess  my  vote  will  be  determined  largely  by  the  final  disposi- 
tion of  Section  2.    I  believe  there  is  a  motion  now  to  reconsider  Section  2. 

Mr.  Flood:  Mr.  President,  I  only  want  to  say,  in  reply  to  the  las^  remark  of  the 
gentleman  from  Richmond  (Mr.  Meredith),  that  I  am  one  of  those  who  took  an  interest 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXLl. 


1863 


in  biennial  sessions  and  biennial  elections.  I  did  it  because  I  believed  in  biennial 
elections  and  biennial  sessions.  I  did  it  vrithout  any  reference  to  this  proposition. 
I  regard  this  as  a  separate  and  distinct  proposition.  I  regard  the  proposition  he  had 
submitted  as  vicious,  as  a  proposition  that  will  be  detrimental  to  the  Constitution,  but 
I  regard  it  as  of  inferior  importance  to  biennial  elections  and  to  biennial  sessions,  and 
so  far  as  I  am  concerned,  and  so  far  as  I  know  the  motives  of  those  who  have  acted 
with  me  in  fighting  for  biennial  sessions,  they  have  regarded  biennial  sessions  and  bien- 
nial elections  as  of  a  great  deal  more  importance  than  the  proposition  now  being  con- 
sidered. 

Mr.  Hunton:  Mr.  President,  I  desire  to  say  one  word  with  reference  to  the  motion 
of  my  friend  from  Hanover  (Mr.  Carter).  I  occupy  identically  the  same  position  that 
he  does.  In  other  words,  if  there  are  to  be  quadrennial  elections  I  favor  the  proposi- 
tion of  the  gentleman  from  Dan^-ille,  advocated  by  the  gentleman  from  Richmond.  If 
there  are  to  be  biennial  elections  I  am  opposed  to  that  plan.  I  do  not  know  how  to 
vote  intelligently,  occupying  that  position,  unless  the  motion  of  my  friend  from  Hanover 
should  prevail. 

Mr.  Keezell:  'Mr.  President,  I  occupy  this  kind  of  position  upon  this  question.  I 
believe,  whether  we  elect  every  two  years  or  every  four  years,  the  members  of  the 
Senate  and  the  members  of  the  House  ought  to  have  the  same  terms. 

Possibly  I  am  in  a  position  to  speak  with  some  knowledge  in  reference  to  this  mat- 
ter. In  my  judgment,  if  there  is  anything  which  prevents  the  Legislature  of  Virginia 
being  responsive  to  the  wishes  of  the  people  it  is  the  hold-over  members  of  the  Senate. 
I  have  been  a  hold-over  member  three  or  four  times.  I  believe  if  you  want  to  get  the 
members  of  the  Legislature  close  to  the  people  they  should  be  elected  every  two'  years. 
I  am  absolutely  and  utterly  opposed  to  the  hold-over  principles  in  the  Senate.  I  think 
it  has  been  detrimental  to  such  legislation  as  the  people  have  a  right  to  ask  for  and 
expect  at  the  hands  of  their  representatives.  Xo  matter  what  the  proposition  is  I  hope 
we  will  do  away  with  the  hold-over  part  of  the  Senate. 

Mr.  R.  V,'alton  Moore:  3Ir.  President,  speaking  for  myself  and  some  other  mem- 
bers of  the  Committee  on  the  Legislative  Department  who  thoroughly  approve  the 
principle  embodied  in  the  amendment  offered  by  the  gentleman  from  Richmond  (Mr. 
Meredith),  I  wish  to  say  that  I  will  support  that  amendment.  It  seems  to  me  it  con- 
tains a  vital  principle,  so  far  as  the  Legislative  Department  is  concerned,  that  r<e  ought 
to  incorporate  in  the  Constitution.  VTien  I  make  that  declaration  no  man  shall  charge 
that  I  am  reflecting  upon  the  General  Assembly  or  that  I  am  attempting  to  discredit 
it.  I  have  been  a  member  of  that  body  myself  and  I  have  alwa:*s  had  intimate  friends 
in  it.  I  have  never  yet  offered  any  reckless  criticism  upon  its  conduct,  nor  am  I  now 
doing  so  when  I  join  such  experienced  legislators  as  the  gentleman  from  Rockingham 
(Mr.  Keezell)  and  the  gentleman  from  Lynchburg  (Mr.  Glass)  and  the  gentleman  from 
Danville  (Mr.  Withers)  in  advocating  the  election  of  all  of  the  Sena.tors  at  the  same 
time.    I  am  not  here  to  make  attacks. 

If  I  know  myself,  I  have  no  desire  and  no  ambition  in  connection  with  the  work 
of  this  Convention  but  to  frame  a  Constitution  which  will  promote  and  advance  the 
highest  interests  of  the  Commonwealth.  I  cannot  believe  that  if  we  adopt  a  provision 
that  will,  beyond  the  peradventure  of  a  doubt,  allow  the  people  of  the  Commonwealth 
a  freer  expression  of  their  will  in  the  Legislative  Department  of  the  government  we 
have  done  anything  to  imperil  that  result. 

What  is  the  present  system?  It  is  the  worst  quadrennial  system  that  can  be 
imagined.  The  Legislative  Department  of  the  government  is  made  up  of  the  Executive, 
who  is  elected  every  four  years;  of  the  House  of  Delegates,  elected  every  two  years; 
of  Senators,  elected  in  two  groups,  at  two  elections,  located  in  a  period  of  four  years. 

My  friend  from  Appomattox  (Mr.  Flood )  calls  attention  to  one  instance  in  which  he 
claims  the  Senate  stood  as  a  barrier  against  an  invasion  of  popular  rights.  I  can  refer 
him  to  a  multitude  of  instances  in  which  the  fact  has  been  quite  to  the  contrary. 


18G4 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Flood:    What  are  they? 

Mr.  R.  Walton  Moore:  If  the  gentleman  wants  an  illustration  I  point  him  to  what 
is  called  the  employers'  liability  bill. 

Mr.  Flood:    That  is  the  only  one  you  can  give. 

Mr.  R.  Walton  Moore:  Let  me  refer  you  to  the  message  of  a  distinguished  ex- 
Governor  of  Virginia,  now  a  member  of  this  Convention,  in  which  he  appealed,  in  1884, 
for  a  proper  regulation  of  corporations  in  the  Commonwealth,  and  there  has  been  no 
response  to  that  appeal  yet,  although  nearly  a  score  of  years  have  passed. 

Under  the  present  system  the  will  of  the  people  may  be  defeated  in  two  ways, 
either  by  a  Legislature  chosen  in  the  midst  of  a  Governor's  term  and  confronted  by  a 
hostile  executive,  or  by  a  Governor  and  a  House  of  Delegates  in  accord  being  confronted 
by  a  hostile  or  reluctant  Senate. 

The  whole  burden  of  the  argument  against  the  quadrennial  plan  is  that  we  are 
destroying  the  intimate  relation  the  people  should  occupy  to  the  government.  I  wish  to 
declare  that  my  object  in  advocating  the  election. of  ail  the  Senators  when  all  of  the 
members  of  the  House  of  Delegates  are  elected  has  been  to  give  the  people  a  fuller 
control  of  the  Legislative  Department. 

Mr.  Flood:  I  should  like  to  ask  the  gentleman  whether  any  bill  regulating  corpora- 
tions ever  passed  the  House  and  was  defeated  in  the  Senate  since  that  message  to  which 
he  alludes  was  written. 

Mr.  R.  Walton  Moore:  I  was  in  the  Senate  some  time  ago  and  supported  a  bill  for  a 
proper  regulation  of  the  railroad  corporations;.  A  committee  failed  to  report  the  bill, 
and  upon  my  motion  tO'  bring  it  from  the  committee  into  the  Senate  for  consideration 
there  was  an  adverse  vote.  It  died  in  committee,  and  time  and  time  again  such  bills 
have  met  a  similar  fate  on  the  other  side  of  the  capitol. 

At  this  point  Mr.  Thom  took  the  chair  as  presiding  officer. 

The  Presiding  Officer:    The  question  is  on  the  motion  of  the  gentleman  from 
Hanover  (Mr.  Carter)  to  pass  by  the  two  amendments  now  pending. 
The  motion  was  rejected. 

The  Presiding  Officer:  As  the  Chair  understands  the  amendment  of  the  gentleman 
from  Richmond  (Mr.  Meredith)  was  accepted  by  the  gentleman  from  Danville  (Mr. 
Withers).  The  question  is  on  the  amendment  of  the  gentleman  from  Wise  (Mr. 
Ayers),  which  the  Secretary  will  read. 

Strike  out  all  after  the  word  "members,"  in  line  2  of  Section  3,  and  insert  in  lieu 
thereof  the  following: 

There  shall  be  elected  for  the  term  of  four  years,  for  the  election  of  whom  the 
counties,  cities  and  town  shall  be  divided  into  districts.  Each  county,  city  and  town 
of  the  respective  districts  shall,  at  the  time  of  the  first  election  of  its  delegate  or  dele- 
gates under  this  amendment,  vote  for  one  or  more  Senators.  The  Senators  first  elected 
under  this  amendment  in  districts  bearing  odd  numbers  shall  vacate  their  office  at  the 
end  of  two  years,  and  those  elected  in  districts  bearing  even  numbers,  at  the  end  of 
four  years,  and  vacancies  occurring  by  expiration  of  terms  shall  be  filled  by  the  election 
of  Senators  for  the  full  term. 

The  question  having  been  taken,  the  result  was  announced — ayes,  23;  noes,  44, 
The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  is  upon  the  amendment  of  the  gentleman 
from  Danville  (Mr.  Withers)  as  modified  by  the  amendment  of  the  gentleman  from 
Richmond  (Mr.  Meredith^,  w^hich  was  accepted  by  the  gentleman  from  Danville. 

The  question  having  been  taken,  the  result  was  announced — ayes,  45;  noes,  24 — 
as  follows: 

Ayes — Messrs.  W.  A.  Anderson,  Barbour,  Barham,  Blair.  Boaz,  Bristow.  Cobb,  Davis, 
Dunaway.  Earman.  Fairfax,  Fletcher,  Glass,  James  W.  Gordon.  R.  L.  Gordon,  Gwyn, 
Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Keezell,  Lindsay,  Lovell,  Marshall,  Mcllwaine, 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXYEXTIOX  OE 


VIRGIXIA. 


1865 


Meredith.  Miller,  R.  Walton  Moore,  Mundy,  Orr,  Parks,  Pedigo,  Phillips,  Pollard, 
Richmond,  Robertson,  Summers,  Tarry,  Thornton,  Turnbull,  Waddill,  Walker,  Wescott, 
Willis,  Withers  and  Woodhouse — 45. 

Nays — Messrs.  Allen,  Manly  H.  Barnes,  Brooke,  Brown,  Cameron,  Clarence  J. 
Campbell,  P.  W.  Campbell,  Epes,  Flood,  B.  T.  Gordon,  Gregory,  Hancock,  Hatton,  Hooker, 
Hubard,  Kendall,  Moncure,  Portlock,  Rives,  Stebbins,  Stuart,  Watson,  Wysor  and  the 
President — 24. 

The  following  pairs  were  announced:  Mr.  Wise  with  Mr.  Ayers;  :\Ir.  Yancey  with 
Mr.  Hamilton;  Mr.  Lawson  with  Mr.  Bouldin;  Mr.  Hardy  with  Mr.  Smith;  Mr.  Gilmore 
with  Mr.  Petitt;  Mr.  Braxton  with  Mr.  Thom;  Mr.  Quarles  with  Mr.  Harrison. 

The  first  named  gentlemen,  in  each  instance,  would  have  voted  in  the  affinnative. 

The  amendment  was  adopted. 

The  Presiding  Officer;  The  question  is  on  the  adoption  of  Section  3  an  amended. 
Mr.  Blair:    I  offer  the  following  amendment: 

In  line  2,  Section  3,  insert  after  the  word  "members"  the  words,  "to  be  elected  from 
each  of  the  judicial  circuits  as  created  by  this  Constitution,  except  in  cities  of  over  forty 
thousand  inhabitants,  w^hich  may  be  formed  into  separate  districts." 

The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  Section  3,  as  amended. 
Section  3  was  adopted,  as  amended. 

]\Ir.  Flood:  Mr.  President,  I  move  to  reconsider  the  vote  by  which  Section  2  was 
adopted,  by  which  the  amendment  offered  by  myself  was  voted 'down. 

Mr.  Turnbull:  Mr.  President,  I  hope  it  will  be  the  pleasure  of  the  Convention 
not  to  reconsider  this  vote,  but  to  let  this  section  stand  as  reported  from  the  committee. 
Members  of  the  Convention  will  understand  my  position  in  reference  to  this  matter.  I 
was  in  favor,  and  I  do  not, hesitate  to  say  so,  not  only  of  quadrennial  elections,  but  of 
quadrennial  sessions  of  the  Legislature,  because  I  believe  thereby  we  would  carry  out 
two  things  that  the  people  sent  us  here  to  do:  One  to  economize,  and  the  other  to 
stop  them  from  being  worried  by  these  continuous  elections.  The  Convention  has 
thought  proper  to  strike  out  the  provision  in  regard  to  quadrennial  sessions  of  the  Leg- 
islature, but  I  do  hope  they  will  yet  sustain  the  committee  and  vote  down  this  proposi- 
tion of  the  gentleman  from  Appomattox  Olv.  Flood),  as  they  did  yesterday,  and  let  us 
have  quadrennial  elections,  at  least,  so  that  that  much  of  the  wishes  of  the  people 
of  Virginia,  as  I  understand  them,  may  be  adopted  in  this  Constitution,  and  that  we  may 
have  quadrennial  elections,  and  not  have  what  the  people  have  complained  of  under  the 
old  Constitution,  continual  elections  in  reference  to  these  matters. 

I  deem  it  unnecessary  to  go  over  the  argument  that  we  went  over  in  reference 
to  this  matter  before,  but  I  do  hope  the  position  the  committee  takes  on  the  subject  of 
quadrennial  elections  will  be  sustained. 

Mr.  Keezell:  Mr.  President,  I  hope  it  will  be  the  pleasure  of  the  Convention  to 
reconsider  the  vote  by  which  Section  2  was  adopted.  We  have  now  adopted  biennial 
sessions  of  the  Legislature.  We  have  gone  further,  and  we  have  agreed  that  there 
shall  be  no  hold-over  Senators,  that  the  terms  of  the  Senators  shall  be  the  same  as 
the  terms  of  the  members  of  the  House  of  Delegates. 

T  voted  for  the  D-rnrin?;itinn  tn  fiv  the  sp-^p  tfirrn  for  both  hecans/P  T  wanted  to  get 
the  Senators  as  close  to  the  people  as  were  the  members  of  the  House  of  Delegates. 
I  did  not  want  to  get  the  members  of  the  House  of  Delegates  as  far  away  from  the 
people  as  the  hold-over  Senators  now  are.  Therefore.  I  hope  it  will  be  the  pleasure  of 
the  Convention  to  reverse  the  vote  by  which  it  adopted  Section  2,  providing  for  quad- 
rennial elections,  and  will  allow  the  people  of  Virginia  an  opportunity  every  two  years 
to  be  represented  in  these  halls  by  people  fresh  from  them,  who  will  reflect  their  ^ish 
and  their  command. 

I  do  not  think  it  is  necessary  to  argue  the  question.    I  am  one  of  those  who  have 
118— Const.  Deb. 


1866 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


been  in  favor  of  doing  away  with  as  many  elections  as  it  was  possible  to  do  away  with, 
without  depriving  the  people  of  their  representative  capacity.  We  have  done  that. 
The  people  of  Virginia  have  abolished  the  spring  elections  by  a  constitutional  amend- 
ment which  they  adopted  this  fall,  an  amendment  which  was  offered  by  me  in  the 
General  Assembly  of  Virginia,  and  the  Convention  has  adopted  the  wishes  of  the 
people  of  Virginia,  as  expressed,  by  voting  upon  that  amendment.  We  are  done  with 
that  election,  but  I  do  not  want  now  to  go  to  the  other  extreme  and  prevent  the  people 
from  having  an  opportunity  to  have  representatives  come  fresh  from  them  and  respect 
their  will  in  the  General  Assembly. 

Mr.  Glass:  Mr.  President,  I  entirely  concur  with  my  friend  from  Rockingham. 
(Mr.  Keezell).  I  supposed  the  object  of  the  motion  of  the  gentleman  from  Danville 
(Mr.  Withers)  was  to  bring  the  Virginia  Senate  closer  to  the  people  and  more  fre- 
quently in  contact  with  the  people,  and  not  to  push  the  House  of  Delegates  further 
away  from  the  people.  I  certainly  hope  it  will  be  the  pleasure  of  the  Convention  to 
reconsider  the  vote  by  which  this  section  was  adopted,  in  order  that  we  may  accomplish 
that  purpose. 

Mr.  R.  Walton  Moore:  As  I  remarked  a  while  ago,  the  Governor  is  a  part  of  the 
law-making  power,  and  a  very  important  part.  We  elect  the  Governor  every  four  years, 
and  I  submit  he  is  as  popular  (using  that  word  in  its  large  sense)  an  official  as  we  have 
in  our  government,  and  there  is  no  reason  to  assume  that  if  the  people  elect  the  Legis- 
lature every  four  years  the  Legislature  will  be  less  popular,  less  responsive  to  the 
will  of  the  people  than  the  Governor  is. 

Further  than  that,  Mr.  President,  there  is  a  clamor  upon  the  part  of  the  people  of 
the  State  for  fewer  elections,  and  the  only  way  in  which  we  can  give  them  fewer 
elections  is  to  elect  the  General  Assembly  quadrennially. 

If  we  adopt  the  quadrennial  plan  we  can  save  two  autumn  elections,  because  we 
can  elect  the  General  Assembly  at  the  time  when  members  of  Congress  are  elected — 
the  years  intermediate  between  Presidential  elections.  If,  however,  gentlemen  are 
absolutely  opposed  to  throwing  State  and  Federal  elections  together,  and  we  adopt 
the  quadrennial  plan,  we  can  save  one  autumn  election  every  four  years,  as  against  the 
biennial  plan. 

One  other  point  and  I  shall  not  trouble  the  Convention  further.  A  little  while  ago 
my  friend  from  Appomattox  (Mr.  Flood)  said  that  if  we  could  put  in  the  Constitution 
an  efficient  suffrage  plan  he  thought  the  people  would  accept  it.  The  people,  I  think, 
will  also  approve  a  Constitution  which  will  enable  the  General  Assembly  to  reduce  the 
tax  rate.  Even  though  there  may  be  an  increase  of  revenue  from  certain  quarters, 
yet,  if  we  reverse  all  we  have  done  in  the  way  of  curtailing  expenses  what  chance  will 
there  be  of  such  a  result? 

It  strikes  me  that  upon  every  consideration  we  should  adhere  to  the  action  we 
have  already  taken.  I  do  not  believe  any  gentleman  can  show  that  popular  interest 
or  popular  rights  will  be  adversely  affected,  will  be  prejudiced  in  the  slightest  degree, 
by  providing  that  the  people  shall  go  to  the  polls  once  in  four  years  to  elect  their 
Governor,  their  House  of  Delegates  and  their  Senate — the  entire  law-making  power. 

I  trust  it  may  be  the  pleasure  of  the  Convention  to  sustain  the  report  of  the  standing 
committee,  and  sustain  the  action  of  the  Committee  of  the  Whole. 

At  this  point  the  President  resumed  the  Chair. 

Mr.  Withers:  Mr.  President,  I  feel,  in  justice  to  what  might  otherwise  appear  an 
inconsistent  position  on  my  part,  that  I  should  express  my  desire  that  the  motion  of 
the  gentleman  from  Appomattox  (Mr.  Flood),  as  I  understand  it,  should  prevail.  I 
believe,  since  we  have  settled  on  biennial  sessions,  there  should  be  biennial  elections 
of  the  whole  Legislature,  for  the  reason  that  to  a  large  extent  very  many  of  the  objec- 
tions that  apply  to  hold-over  Senators  would  apply  to  the  whole  Legislature'  as  a  body 
if  they  had  an  intervening  session  not  following  immediately  after  their  election.  In 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGIXIA. 


18G7 


other  words,  with  quadrennial  elections  and  biennial  sessions,  the  second  session  of 
every  General  Assembly  would  be  comparatively  free  from  and  none-responsive  to  the 
wishes  of  their  constituents. 

For  that  reason,  and  for  that  reason  alone,  I  feel  impelled  to  vote  for  biennial  elec- 
tions, as  quadrennial  sessions  have  been  defeated,  and  as  I  believe  the  stain  and  danger 
and  threat  and  bane  of  legislation  in  Virginia,  hold-over  Senators,  has  been  removed 
from  ail  possible  connection  or  povrer  in  our  General  Assembly. 

Mr.  Meredith:  Mr.  President,  I  wish  to  say  a  word  or  two  on  this  question,  as 
the  gentleman  from  Danville  (Mr.  Withers)  accepted  the  amendment  I  suggested  to 
his  amendment  in  regard  to  the  election  of  Senator.  I  was  of  the  opinion  at  the  time 
I  offered  it,  and  I  am  still  of  the  same  opinion,  that  the  report  of  the  committee,  as 
adopted  in  the  Committee  of  the  WTiole,  ought  to  stand  and  that  we  should  have  quad- 
rennial elections.  I  do  not  see  how  this  is  removing  us  so  far  from  the  people.  Some 
gentlemen  have  talked  as  if  we  intended  to  put  the  members  of  the  General  Assembly 
on  some  high  pinnacle  so  that  the  people  could  not  reach  them.  The  truth  of  the  mat- 
ter is,  that  at  the  second  session  they  will  be  closer  to  the  people  than  they  will  be 
at  the  first.  They  will  be  closer  to  the  next  election  than  they  will  at  the  first  session; 
and  they  will  feel  they  are  about  to  be  called  to  account,  when  they  are  in  the  second 
session,  more  than  they  will  when  in  the  first  session. 

I  respectfully  submit  this  idea  of  being  so  far  removed  from  the  people  is  a  mere 
fancy.  There  is  no  reality  in  it.  The  connection  between  the  representatives  of  the 
people  and  the  people  themselves  is  sufficiently  close,  no  matter  whether  a  man  is 
elected  for  four  years:  or  two  years,  for  a  man  to  feel  his  responsibilities  to  the  people 
and  to  desire  to  represent  their  wishes  as  far  as  possible. 

But  I  did  not  propose  to  argtie  that  point.  I  wish  to  call  your  attention  to  the 
benefit  of  having  quadrennial  elections.  I  ask  for  the  experience  of  every  member 
in  the  Convention,  who  has  had  no  experience  in  legislative  bodies  before  he  came  here, 
whether  he  does  not  feel  that  he  would  have  made  a  better  representative  in  this  Con- 
vention if  he  had  had  some  previous  legislative  experience.  I  know  there  are  men  here 
who  have  had  a  great  deal  of  experience  in  matters  of  that  kind,  but  I  appeal  to  those 
who  had  had  no  experience. 

Mr.  Ingram:  Do  you  not  think  under  the  plan  of  biennial  elections,  as  a  matter 
of  fact  there  will  be  a  good  many  hold-over  Senators  and  members  of  the  House  of 
experience?    Has  not  that  been  the  experience  in  the  past? 

Mr.  :\Ieredith:  I  am  not  speaking  of  that.  I  say  in  the  second  session  you  will 
have  every  man  experienced.  There  will  not  be  a  single  member  in  the  second  session 
who  will  not  have  acquired  some  experience  in  the  first  session.  I  say  there  is  not 
a  man  of  us  here  who  came  into  this  Convention  with  no  experience  in  legislative  halls 
who  does  not  feel  he  could  have  been  a  better  representative  had  he  had  some  ex- 
perience in  legislative  matters  before  he  came  here. 

We  will  give  the  men  who  are  elected  to  both  branches  of  the  General  Assembly 
an  opportunity  to  acquire  some  experience,  and  at  the  second  session  they  can  be  of 
more  benefit.  I  want  to  know  from  any  gentleman  in  this  Convention  whether  he  has  ■ 
not  had  influences  brought  to  bear  on  him  such  as  he  would  undoubtedly  have  been 
better  able  to  resist  if  he  had  had  any  experience  in  matters  of  this  kind  in  the  past? 
Does  not  everj-  gentleman  know  that  there  have  been  dangers  that  he  could  have  avoided 
if  he  had  had  any  experience  and  could  have  foreseen  the  result  of  certain  measures. 

So  I  say  that  by  having  two  sessions  for  each  member  of  the  General  Assembly 
we  will  have  men  with  more  experience,  at  least  in  the  second  session.  There  is  one 
other  thing,  and  I  ask  your  consideration  of  it,  because  it  does  seem  to  me  it  ought  to 
appeal  to  you.  You  can  get  men  to  run  when  they  will  have  a  term  of  four  years  who 
will  not  be  willing  to  run  for  a  term  of  two  years.  I  submit  to  you  that  is  worthy  of 
consideration.    I  do  not  mean  to  say  you  cannot  get  men  to  run  for  two  years.    I  do 


1868 


DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


not  mean  to  say  that  in  many  instances  you  will  not  get  able  men  to  run  for  two  years; 
but  I  do  say  that  men  will  be  more  willing  to  put  themselves  to  the  trouble  and  expense- 
and  annoyance  of  running  for  a  term  of  four  years  rather  than  for  a  term  of  two  years. 

So  I  submit  to  you  you  will  have  an  opportunity  of  getting  a  better  class  of  repre- 
sentatives. You  will  have  men  who  at  the  second  session  will  certainly  have  had 
experience,  which  ought  to  help  them  in  the  legislation  of  the  second  Siession. 

Mr.  Flood:  Mr.  President,  I  hope  the  Convention  will  reconsider  the  vote  by  which 
the  amendment  I  offered  on  this  subject  was  voted  down.  The  gentleman  from  Bruns- 
wick (Mr.  Turnbull)  says  we  want  to  economize  in  the  matter.  I  believe,  Mr.  President,, 
that  an  election  costs  about  $15,000.  There  is  no  way  in  which  you  can  save  more  than 
one  election  in  four  years.  If  you  have  quadrennial  elections  one  election  will  be  saved 
in  four  years,  and  that  will  be  less  than  $4,000  a  year  saved  to  the  treasury,  but  by 
doing  it  you  deprive  the  people  of  their  right  of  choosing  their  representatives  but  once 
in  four  years. 

I  do  not  believe  the  people  will  approve  this.  I  do  not  believe  the  people  are  going 
to  endorse  an  action  that  takes  from  them  the  right  to  choose  their  representatives  for 
four  years.  I  believed  the  proposition  to  have  biennial  sessions  was  more  important 
than  this,  but  I  regard  this  as  second  in  importance  to  any  proposition  in  this  report, 
if  not  to  any  matter  considered  by  this  Convention.  I  do  not  believe  the  people  will 
approve  a  proposition  by  which  they  will  have  to  elect  their  representatives  for  four 
years  and  cannot  pass  upon  their  actions  for  that  period  of  time. 

The  Legislature  will  have  to  elect  a  number  of  officers  under  the  Constitution. 
It  will  have  to  elect  the  Supreme  Court  judges.  It  will  have  to  elect  the  circuit  judges. 
It  will  have  to  elect  the  corporation  judges.  One  Legislature,  the  very  next  Legisla- 
ture, will  have  to  elect  two  United  States  Senators.  That  will  be  concentrating  a  great 
deal  of  power  in  the  hands  of  one  body.  All  of  the  important  officials  of  the  Common- 
wealth will  have  to  be  elected  at  one  term  or  another  by  one  Legislature. 

The  Legislature  that  is  chosen  in  the  year  1903  will  elect  two  United  States 
Senators..  If  we  have  two  quadrennial  elections  one  of  those  Senators  will  hold  until 
the  fourth  of  March,  1913.  In  other  words,  there  will  be  a  gentleman  representing  the 
people  of  Virginia  in  the  highest  legislative  branch  of  this  government,  whose  claims 
the  people  have  not  had  an  opportunity  to  pass  upon  for  ten  years.  He  will  hold  his 
commission  ten  years  after  the  Legislature  which  chooses  him  is.  elected  by  the  people. 

I  believe  that  in  all  matters  in  this  Constitution  we  ought  to  come  as  near  the 
people  as  possible.  I  do  not  use  that  expression  in  any  sense  of  demagoguery,  but 
surely  if  we  are  going  to  have  biennial  sessions,  if  the  Legislature  is  coming  here  once 
in  two  years,  you  would  not,  for  the  paltry  sum  of  $4,000  a  year,  deprive  the  people  of 
the  right  of  choosing  thos.e  representatives  every  time  they  come  here. 

The  gentleman  from  Richmond  (Mr.  Meredith)  says  you  will  get  a  better  class  of 
men.  It  is  true,  Mr.  President,  you  would  get  a  more  experienced  class  of  men  in  all 
probability,  but  as  suggested  by  my  friend  from  Manchester  (Mr.  Ingram)  there  would 
be  enough  old  men  in  each  biennial  session  to  give  experience  to  the  entire  body.  But 
suppose  a  Legislature  was  elected  that  the  people  did  not  want,  and  suppose  in  some 
popular  upheaval  you  got  a  Legislature  that  did  not  respond  to  the  sentiment  of  the 
state,  you  would  then  be  tied  hand  and  foot  to  that  Legislature  for  a  period  of  four 
years. 

I  submit,  Mr.  President,  if  we  have  biennial  sessions  it  would  be  a  remarkable 
position  for  the  Convention  to  put  itself  in,  to  remove  them  all  further  from  the  people. 

Mr.  Walker:  Mr.  President,  I  shall  detain  the  Convention  but  a  moment.  I  do 
not  understand  the  consistency  of  reasoning  of  those  gentlemen  who  A-oted  for  biennial 
sessions  and  who  now  would  vote  for  quadrennial  elections.  The  Convention  has  just 
decided  by  its  vote  that  one-half  of  the  members  of  the  Senate  are  to  hold  over.  If 
those  same  gentlemen  now  vote  for  quadrennial  elections  they  put  themselves  in  this 
position:  Wliile  it  is  an  evil  to  have  one-half  of  the  Senate  hold  over  it  is  not  an  evil 
to  have  the  whole  Senate  hold  over  and  the  whole  House  hold  over. 


DEBATES  OF  THE  COXSTITTTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


18(39 


The  argument  vrhich  the  gentleman  from  Richmond  (Mr.  Meredith)  uses  as  to  the 
experience  of  members  of  the  House  during  their  second  session  vould  have  been 
a  perfectly  good  argument  to  use  by  the  gentlemen  who  are  in  favor  of  having  hold- 
over Senators,.  v.-ho,  every  second  session  would  have  had  the  benefit  of  the  experience 
acquired  in  the  first  session.  I  cannot  see,  sir.  if  it  is  a  bad  thing  to  have  one-half  the 
members  of  the  Senate  hold  over  why  it  would  not  be  a  worse  thing  to  have  all  the 
members  of  the  Senate  hold  over,  and  in  addition  all  the  members  of  the  House. 

The  President:  The  question  is  on  the  motion  to  reconsider  the  vote  by  which 
Section  2  was  adopted,  the  object  being  to  reconsider  the  vote  by  v,hich  the  amend- 
ment offered  by  the  gentleman  from  Appomattox  CMr.  Flood)  was  defeated.  The 
present  question  is  on  reconsidering  the  vote  adopting  Section  2. 

The  question  having  been  taken,  the  result  was  announced — ayes,  44;  noes,  25 — 
as  follows: 

Ayes — Messrs.  Allen,  Barham,  Manly  H.  Barnes.  Blair,  Boaz.  Bristow,  Brooke, 
Cameron,  Clarence  J.  Campbell,  P.  Vi'.  Campbell.  Davis,  Dunaway,  Earman.  Barham.  Eggle- 
-ston,  Fletcher,  Flood,  Gillespie,  Glass,  James  Gordon,  Hancock.  Hatton,  Hooker,  Hubard, 
Ingram.  Keezell,  Kendall.  Lincoln.  Miller.  Moncure.  Mundy.  OTlaherty.  Pedigo.  Phillips, 
Portlock,  Rives,  Stebbins,  Summers,  Tarry,  Vincent,  "Walker.  Watson.  Vescott.  Withers 
and  the  President — 44. 

Noes — Messrs.  W.  A.  Anderson.  Barbour.  Carter,  Cobb.  Fairfax.  B.  T.  Gordon.  R.  L. 
G-ordon,  Gregory.  Gwyn.  Hardy,  Hunton,  Claggett  B,  Jones.  L-ovell.  Marshall.  Mcllwaine, 
Meredith.  R.  Walton  :\Ioore,  Orr,  Parks,  Pollard.  Robertson,  Stuart,  Turnbull.  Wood- 
house  and  Wysor — 23. 

The  following  pairs  were  announced:  :\Ir.  Brown  with  :\Ir.  George  K.  Anderson; 
Mr.  Daniel  with  :\Ir.  Lindsay:  3.1r.  Bouldin  with  :\Ir.  Lawson:  ^Iv.  Hamilton  with  Mr. 
Yancey;  Mr.  Pettit  with  ^Ir.  Gilmore:  Mr.  Chapman  with  Air.  Richmond:  Mr.  Thorn 
with  Mr.  Braxton:  ^Iv.  Ayers  with  Air.  Wise:  Mr.  Harrison  with  :Mr.  Quarles. 

The  first  named  gentlemen,  in  each  instance,  wotild  haA-e  voted  in  the  aflirmaiive. 

The  motion  to  reconsider  was  agreed  to. 

The  President:  The  first  question  is  on  the  motion  to  reconsider  the  vote  by 
which  the  amendment  offered  by  the  gentleman  from  Appomattox  (Mr.  Flood)  was 
defeated. 

The  motion  to  reconsider  was  agreed  to. 

The  President:  The  question  recurs  on  agreeing  to  the  amendment  to  strike  out 
^''quadrennially"  and  insert  •'biennially." 

The  question  having  been  taken,  the  result  was  announced — ayes,  43;  noes,  2S — 
as  follows: 

Ayes — Messrs.  Allen,  Barham.  Manly  H.  Barnes.  Blair.  Boaz.  Bristow.  Brooke, 
Cameron.  Clarence  J.  Campbell.  P.  W.  Campbell.  Davis.  Dunaway.  Earman.  Eggleston, 
Epes.  Fletcher.  Flood.  Gillespie.  Glass.  James  W.  Gordon.  Hancock.  Hatton.  Hooker, 
Hubard.  Ingram.  G.  W.  Jones.  Keezell.  Kendall.  Lincoln.  Miller.  Moncure.  Mundv, 
OTlaherty.  Pedigo.  Phillips.  Portlock.  Rives.  Stebbins.  Stimmers.  Walker.  Watson, 
Withers  and  the  President — 43. 

Xoes— Messrs.  W.  A.  Anderson.  Barbour.  Carter.  Fairfax,  B.  T.  Gordon,  R.  L. 
Gordon.  Gregory,  Gwyn,  Hunton,  Claggett  B.  Jones.  Lovell.  Marshall.  Mcllwaine.  Mere- 
dith. R.  Walton  Moore.  Orr.  Parks.  Pollard.  Robertson.  Stuart.  Tarrv.  Thornton,  Turn- 
bull.  Waddill.  Wescott.  Willis.  Woodhouse  and  Wysor — 2S. 

The  following  pairs  were  announced:  Mr.  Brown  with  Mr.  George  K.  Anderson; 
Mr.  Hamilton  with  Mr.  Yancey:  Mr.  Harrison  with  Air.  Quarles:  Mr.  Bouldin  with  Mr. 
Lawson:  Mr.  Ayers  with  Mr.  Wise:  Mr.  Pettit  with  Mr.  Gilmore;  Mr.  Daniel  with  Mr. 
Lindsay:  Mr.  Chapman  with  Mr.  Richmond:  Mr.  Vincent  with  Air.  Walter:  Air.  Thorn 
with  Air.  Braxton. 

The  first  named  gentleman,  in  each  instance,  would  have  voted  in  the  affirmative. 

Air.  Flood:    I  should  like  to  offer  another  amendment  to  Section  7. 

I  want  to  strike  out  the  words  "after  the  first  under  this  Constitution,"  in  line  6, 


1870 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


because  I  cannot  see  any  necessity  of  giving  the  first  Legislature  under  this  Consti- 
tution an  unlimited  term.  The  Legislature  which  is  now  in  session  will  put  the  Consti- 
tution into  operation.  They  will  stay  in  session  long  enough  for  that.  Then  there 
seems  to  me  to  be  no  necessity  of  giving  the  next  General  Assicmbly  that  assembles 
unlimited  term.  They  have  no  more  to  do  than  any  other  General  Assembly.  If  any 
great  necessity  arises  by  which  they  are  to  stay  in  session  longer  than  sixty  days  this 
section  provides  that  by  a  vote  of  three-fifths  they  can  keep  themselves  in  session 
longer  than  sixty  days. 

The  amendment  was  agreed  to. 

Mr.  R.  Walton  Moore:    1  move  the  adoption  of  Section  7. 
Section  7  was  adopted. 

Sections  8,  9,  10,  11,  12,  13,  14,  15,  16,  17,  18,  19,  20,  21,  22  and  23  were  read  and 
adopted  without  amendment. 

Section  24  was  read  and  adopted  with  an  unimportant  amendment. 
Sections  25,  26  and  27  were  read  and  adopted. 

The  President:  The  Secretary  will  read  the  first  independent  section  proposed 
by  the  Committee  of  the  Whole. 

The  Committee  of  the  Whole  propose  the  following  independent  sections: 

Sec.  — .  The  General  Assembly  shall  not  make  any  appropriation  of  public  funds, 
of  personal  property,  nor  of  any  real  estate  to  any  church,  or  sectarian  society,  associa- 
tion, or  institution  of  any  kind  whatever,  which  is  entirely  or  partly  directly  or  in- 
directly, controlled  by  any  church  or  sectarian  society;  nor  shall  the  General  Assembly 
make  any  like  appropriation  to  any  charitable,  industrial  or  educational  institution 
which  is  not  owned  or  controlled  by  the  State;  except  that  the  General  Assembly  may, 
in  its  discretion,  make  appropriations  to  non-sectarian  institutions  for  the  reform  of 
youthful  criminals  and  continue  the  appropriations  to  William  and  Mary  College  for 
male  normal  school  purposes:  Provided,  that  nothing  herein  contained  shall  prohibit 
the  General  Assembly  from  authorizing  cities,  towns  or  counties  to  make  such  appro- 
priations. 

Mr.  Pollard:  Mr.  President,  I  move  to  amend  the  section  by  striking  out  all  after 
the  word  "provided,"  in  line  12.  My  purpose  in  doing  that  is  this:  The  first  part  of 
the  section  announces  the  principle  that  public  money  shall  not  be  used  for  sectarian 
purposes,  while  in  the  latter  part  of  the  section  we  violate  that  principle  by  authorizing 
the  General  Assembly  to  permit  cities,  towns  and  counties  to  make  such  appropriations. 
I  think  that  is  inconsistent,  and  I,  therefore,  make  the  motion  to  strike  that  out. 

Mr.  Thom:  Mr.  President,  I  hope  that  amendment  will  not  prevail.  In  the  city 
of  Norfolk  that  very  provision  enables  us  to  carry  on  a  system  of  public  charities  which 
we  would  be  obliged  to  carry  on  at  vastly  increased  expense  unless  this  provision  is 
adopted.  The  Hospital  of  St.  Vincent  de  Paul  and  other  hospitals,  with  a  little  city 
help,  can  do>,  at  a  small  cost,  a  good  deal  of  work  that  the  city  would  have  to  establish 
its  own  independent  institutions  to  do  unless  this  were  permitted.  The  Committee  of 
the  Whole  inserted  this  provision  on  that  argument.  I  will  not  continue  my  remiarks, 
but  will  merely  say  I  hope  that  idea  will  not  be  forgotten. 

The  amendment  was  rejected. 

The  President:    The  question  recurs  on  agreeing  to  the  adoption  of  the  first  inde- 
pendent section  proposed  by  the  Conmmittee  of  the  Whole. 
The  section  was  adopted- 

The  President:  The  Secretary  will  read  the  second  independent  section  proposed 
by  the  Committee  of  the  Whole. 

Sec.  — .  The  General  Assembly  shall,  at  each  regular  session  thereof,  appoint  a 
standing  committee  consisting  of  two  members  of  the  Senate  and  three  members  of  the 
House  of  Delegates,  which  said  committee  shall  be  known  as  the  Auditing  Committee, 
and  which  shall  annually,  or  oftener,  in  their  discretion,  examine  the  books  and  accounts 
of  the  First  and  Second  Auditor,  the  State  Treasurer  and  the  Secretary  of  the  Com- 
monwealth, and  report  the  result  of  these  investigations  to  the  Governor,  and  annually 
publish  the  same  in  two  newspapers  of  general  circulation  in  the  State.    The  reports 


DEBATES  OF  THE  COISrSTITnTIONAL  CONVEXTION  OF  VIRGINIA. 


1871 


received  by  the  Governor  shall,  at  the  beginning  of  each  session,  be  submitted  by  him 
to  the  General  Assembly  for  scrutiny  and  appropriate  action.  The  said  committee  may 
employ  one  or  more  expert  accountants  to  assist  in  said  examinations. 

The  section  was  adopted. 

Mr.  R.  Walton  Moore:  Mr.  President,  I  move  the  adoption  of  the  report  of  the 
Committee  on  the  Legislative  Department,  as  amended. 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  the  report  of  the 
Committee  of  the  Legislative  Department,  as  amended. 

The  report  of  the  committee  was  adopted. 

Mr.  R.  Walton  Moore:  I  move  that  the  report  of  the  committee  be  printed  and 
referred  to  the  Committee  on  Final  Revision. 

The  President:  That  will  be  taken  as  the  sense  of  the  House  unless  there  is  objec- 
tion.   The  Chair  hears  none.  (Applause.) 

The  consideration  of  the  report  of  the  Committee  on  the  Legislative  Department 
having  been  concluded,  the  Convention  adjourned  until  to-morrow,  Saturday,  January 
IS,  1902,  at  10  o'clock  A.  M. 


SATURDAY,  January  18,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

Mr.  Flood:    Mr.  President,  I  desire  to  introduce  the  following  resolutions: 

Resolved,  That  Section  3,  Article  6,  of  the  pending  Constitution,  as  contained  in  the 
report  of  the  Committee  on  the  Legislative  Department,  adopted  on  the  7th  day  of 
January,  1902,  be,  and  the  same  is  hereby,  rescinded. 

The  Secretarj^  read  as  follows: 

Resolved,  That  the  Senate  shall  consist  of  not  less  than  thirty-three  nor  more  than 
forty  members.  They  shall  be  elected  for  a  term  of  four  years;  for  the  election  of 
whom  the  counties,  cities  and  towns  shall  be  divided  into  districts.  The  Senators  to  be 
elected  from  districts  bearing  even  numbers  shall  be  elected  in  the  year  1903,  and  every 
four  years  thereafter,  and  those  bearing  odd  numbers  shall  be  elected  in  the  year  1905 
and  every  four  years  thereafter. 

The  President:  The  resolutions  will  be  referred  to  the  Committee  on  the  Legisla- 
tive Department. 

Mr.  Turnbull:  Mr.  President,  I  desire  to  offer  an  amendment  in  the  nature  of  a 
substitute  for  sixty-five  lines  of  Section  1  of  the  majority  report  of  the  Committee  on 
Elective  Franchise,  and  ask  that  it  lie  on  the  table  and  be  printed. 

The  President:    That  will  be  the  sense  of  the  Convention,  without  objection. 

Mr.  Ayers:  Mr.  President,  I  move  that  the  Convention  take  up  for  consideration 
the  report  of  the  Committee  on  Public  Institutions  and  Prisons,  as  reported  from  the 
Committee  of  the  Whole. 

The  motion  was  agreed  to. 

The  report  was  read  section  by  section  and  adopted  with  slight  amendments. 
Mr.  James  W.  Gordon:    1  offer  the  following  resolution,  and  ask  that  it  lie  on 
the  table  and  be  printed. 

Resolved,  That  Sections  2  and  7  of  the  report  of  the  Committee  on  the  Legislative 
Department,  as  adopted  by  the  Convention  on  January  17,  1902,  be,  and  the  same  are 
hereby,  rescinded;  and  that  Sections  2  and  7  of  said  report,  as  they  came  from  the 
Committee  of  the  Whole,  be  substituted  tnerefor. 

The  President:  The  resolution  will  be  referred  to  the  Committee  on  the  Legisla- 
tive Department. 


1872 


DEBATES  OF  THE  CONSTITUTIOIS^AL  CONVENTIOIir  OF  VIEGINIA. 


THE  EXECUTIVE  DEPARTMENT. 

Mr.  Cameron:  Mr,  President,  I  move  that  the  report  of  the  Committee  on  the 
Executive  Department,  so  far  as  it  is  completed,  be  taken  up  for  consideration  by 
the  Convention. 

The  motion  was  agreed  to. 

Section  1  was  read  and  adopted. 

The  President:    The  Secretary  will  read  Section  2. 

Sec.  2.  The  Governor  shall  be  elected  by  the  voters  at  the  times  and  places  of 
choosing  members  of  the  General  Assembly.  Returns  of  election  shall  be  transmitted, 
under  seal,  by  the  proper  officers,  to  the  Secretary  of  the  Commonwealth,  who  shall 
deliver  them  to  the  Speaker  of  the  House  of  Delegates  on  the  first  day  of  the  next  session 
of  the  General  Assembly.  The  Speaker  of  the  House  of  Delegates  shall,  within  one 
week  thereafter,  in  the  presence  of  a  majority  of  the  Senate  and  House  of  Delegates,open 
the  said  returns,  and  the  votes  shall  then  be  counted.  The  person  having  the  highest 
number  of  votes  shall  be  declared  elected;  but  if  two  or  more  shall  have  the  highest  and 
an  equal  number  of  votes,  one  of  them  shall  be  declared  elected;  but  if  two  or  more  shall 
have  the  highest  and  an  equal  number  of  votes,  one  of  them  shall  be  chosen  Governor  by 
joint  vote  of  the  two  houses  of  the  General  Assembly.  Contested  elections  for  Governor 
shall  be  decided  by  a  like  vote,  and  the  mode  of  proceeding  in  such  cases  shall  De  pre- 
scribed by  law. 

Mr.  William  A.  Anderson:  Mr.  President,  I  beg  leave  to  submit  the  following 
amendment,  to  come  in  after  the  word  "counted"  in  line  10:  "In  such  manner  as  may 
be  prescribed  by  the  General  Assembly  then  in  joint  session."  The  sentence  will  then 
read  if  the  amendment  is  adopted,  as  follows: 

The  Speaker  of  the  House  of  Delegates  shall,  within  one  week  thereafter,  open  the 
returns,  and  the  votes  shall  be  counted  in  such  manner  as  may  be  prescribed  by  the 
General  Assembly  then  in  joint  session. 

The  gentleman  from  Petersburg  (Mr.  Cameron)  will  remember  that  a  very  grave 
question  has  arisen  in  the  construction  of  a  paragraph  of  the  Constitution  of  the  United 
States  substantially  identical  with  this,  and  one  which  at  one  time  threatened  this 
country  perhaps  with  a  bloody  catastrophe.  It  was  claimed  at  that  time  that  under 
similiar  language  the  President  of  the  Senate  of  the  United  States  had  the  right  to 
count  the  votes.  The  Constitution  of  the  United  States  failed  to  prescribe  precisely 
how  and  by  whom  the  votes  should  be  counted.  It  can  do  no  harm  to  prevent  any 
such  question  ever  arising,  if  there  should  be  a  contest  in  regard  to  the  election  of  a 
Governor. 

Mr.  Cameron:  If  the  gentleman  will  excuse  me,  this  does  distinctly  provide  who 
shall  count  the  votes — the  Speaker  of  the  House. 

Mr.  William  A.  Anderson:  If  it  does,  that  officer  ought  not  to  do  it.  It  vests  too- 
great  a  power  in  the  Speaker  of  the  House.  If  he  does  it  at  all,  he  ought  to  do  it 
simply  as  the  agent  of  the  General  Assembly,  the  representatives  of  icie  people. 

Mr.  Cameron:  I  ask  the  gentleman  to  consider,  what  seems  to  be  a  salient  and 
unmistakable  fact,  that  the  joint  assembly  of  the  two  houses  will  be  in  the  entire 
charge  of  the  whole  matter  in  any  case,  and  that  the  votes  could  not  be  counted  by  the 
joint  assembly  of  the  two  houses,  except  in  such  manner  as  they  might  determine,  unless 
we  put  something  here  to  the  contrary. 

Mr.  William  A.  Anderson:  Mr.  President,  that  was  the  contention  of  many  of  the 
ablest  jurists  of  this  country  at  the  time  the  question  arose  as  to  whether  Mr.  Tilden 
or  Mr.  Hayes  had  been  elected  President  of  the  United  States.  If  the  construction 
which  the  gentleman  from  Petersburg  (Mr.  Cameron)  places  upon  similar  language  in 
the  Constitution  of  the  United  States  is  the  correct  construction,  as  I  believe  it  to  be, 
and  if  it  had  been  accepted  by  Congress,  Mr.  Tilden  would  have  been  seated  as  Presi- 
dent of  the  United  States,  because  the  Dem^ocrats.  had  a  majority  in  the  joint  session  of 
the  two  houses  of  Congress;  but  that  proposition  was  denied,  and  the  then  President 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


18T3 


of  the  Senate,  Mr.  Farry,  upon  the  advice  of  able  counsel  claimed  he  had  the  right  to 
count  the  votes  and  determine  which  return  was  a  valid  return;  and  it  was  to  avoid 
the  collision  which  would  probably  have  been  brought  about  if  such  powers  had  been 
attempted  to  be  exercised  by  the  President  of  the  Senate  that  the  Electoral  Commission 
was  agreed  upon.  The  contest  in  which  the  country  would  otherwise  have  been  involved 
was  thereby  averted,  and  the  man  uho  was  defeated  was  declared  to  be  the  President 
of  the  United  States. 

Mr.  Cameron:  I  have  no  doubt,  Mr.  President,  that  under  the  stress  of  an  irrespon- 
sible political  tension  such  forced  construction  might  be  placed  upon  this  language. 
Therefore,  I  repeat  that,  while  I  consider  no  other  legitimate  construction  is  possible, 
I  have  no  objection  whatever  to  the  insertion  of  the  language  proposed  by  the  gentle- 
mi  an. 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes, 
20;  noes.  45. 

Section  2  was  then  adopted. 

Sections  3  and  4  were  read  and  adopted. 

Section  5,  relating  to  the  duties  of  the  Governor,  was  then  read. 

Mr.  Barbour:  I  offer  the  following  as  an  amendment  to  Section  5,  to  be  added  at 
the  end: 

He  shall  have,  subject  to  the  provisions  of  this  section,  and  under  such  regulations 
as  m&y  be  prescribed  by  law,  the  power  to  suspend,  for  a  period  not  exceeding  thirty 
days  at  any  one  time,  and  to  an  extent  that  may  be  limited  by  law,  any  sheriff  or  ser- 
geant or  other  executive  officer  of  any  county,  citj^  or  town  charged  by  law  w^ith  the 
preservation  of  the  public  peace  or  order,  or  the  execution  of  the  public  laws,  whenever 
it  becomes  necessary  for  the  preservation  of  the  public  peace  or  order  or  the  prompt 
enforcement  of  the  public  laws,  and  he  shall  also  have  power  to  appoint  a  temporary 
superior  to  any  such  officer  so  suspended,  with  such  powers  and  dtities  as  may  be  pre- 
scribed by  law. 

:\Ir.  President,  I  wish  briefly  to  call  the  attention  of  the  Convention  to  the  meaning 
and  effect  of  that  provision.  Its  purpose  is  to  give  the  executive  the  power  to  perform 
the  duty  that  this  Constitution  imposes  upon  him,  the  duty  to  see  that  the  laws  are 
enforced.  It  gives  him  the  power  to  act  promptly  when  the  necessity  occurs  for  it,  and 
merely  in  those  cases  where  it  is  necessary  for  the  prompt  enforcement  of  the  laws 
and  the  preservation  of  the  peace  of  the  Commonwealth.  At  the  same  tim.e  any  abuse 
of  that  power  is  fully  and  strictly  guarded  against  by  making  the  whole  thing  subject 
to  regulations  and  rules  to  be  prescribed  by  the  General  Assembly.  It  is  an  important 
power,  one  that  is  almost  essential  in  cases  of  mobs  or  insurrections  of  a  similar  char- 
acter. It  is  one  which  every  executive  charged  with  the  duty  of  preserving  the  peace 
and  order  of  the  Commonwealth  should  have,  and  I  sincerely  hope  the  amendment  will 
be  adopted  by  the  Convention. 

:\Ir.  Cameron:  :\Ir.  President,  I  have  simply  to  say  that  in  the  opinion  of  the 
committee,  it  was  held  to  be  wiser  to  leave  to  the  Legislature  the  determination  of  how 
these  officers  should  be  suspended  and  removed.  It  seemed  to  them  very  questionable 
whether  a  Governor  at  Richmond  could  be  sufficiently  informed  as  to  matters  in  the  one 
hundred  counties  of  the  State  and  as  to  particular  cases  arising  in  them,  to  determine 
on  the  spur  of  the  moment  in  any  judicial  or  judicious  way  upon  the  question  of  how  an 
officer  was  performing  his  duty,  or  whether  he  should  be  suspended  from  office  or  not. 

It  also  occurs  to  me  that  while  we  have  guarded  the  Governor's  power  of  suspen- 
sion of  State  officers  and  given  officers  so  dealt  with  a  chance  fc^r  hearing  before  the 
General  Assembly,  and  for  vindication  and  reinstatement  in  case  injustice  has  been  done 
them,  here  you  would  commission  the  Governor  with  power  on  the  exparte  statement 
of  individuals  in  any  county  of  the  State  prejudiced,  perhaps,  inimical  to  the  office- 
holders, perhaps,  to  place  a  slur  upon  the  official  and  personal  character  of  the  officer, 
to  suspend  him  from  offxce  for  thirty  days,  and  at  the  end  of  that  time  restore  him  to 


1874  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

office,  with  no  possible  redress  as  to  his  character  or  as  to  the  injury  which  had  been 
done  him. 

Mr.  Barbour:  I  suggest  to  the  gentleman  that  the  whole  thing  is  subject  to  regula- 
tions to  be  prescribed  by  law. 

Mr.  Cameron:  Therefore,  the  committee  thinks  it  is  better  to  leave  the  whole 
thing  to  be  regulated  by  law.  We  think  it  would  be  infinitely  safer  and  infinitely  better, 
and  that  all  proper  provisions  can  and  will  be  made  by  the  General  Assembly. 

Mr.  Flood:  Mr.  President,  I  think  the  proposition  proposed  by  the  gentleman  from 
Culpeper  would  be  a  dangerous  provision.  If  there  is  any  malfeasance  or  misfeasance 
on  the  part  of  an  officer  the  laws  are  ample  now  to  have  him  removed  by  the  court. 
I  suppose  this  is  aimed  to  cover  cases  where  there  is  neglect  oi  duty,  a  lynching,  for 
instance;  but  it  is  too  late  to  prevent  the  lynching  then,  and  the  officer  has  been  guilty 
of  malfeasance.    The  courts  can  turn  him  out. 

Sections  5,  6  and  7  were  read  and  adopted. 

The  President:    The  Secretary  will  read  Section  8. 

Sec.  8.  Every  bill  which  shall  have  passed  the  Senate  and  House  of  Delegates,  and 
every  resolution  requiring  the  assent  of  both  branches  of  the  General  Assembly,  shall, 
before  it  becomes  a  law,  be  presented  to  the  Governor.  If  he  approve,  he  shall  sign  it; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  the  house  in  which  it  shall  have 
originated,  which  shall  enter  the  objections  at  large  on  its  journal  and  proceed  to  re- 
consider the  same.  If,  after  such  consideration,  two-thirds  of  the  members  present, 
which  two-thirds  shall  include  a  majority  of  the  members  elected  to  that  house,  shall 
agree  to  pass  the  bill  or  joint  resolution,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likevvase  be  reconsidered,  and  if  approved  by  two- 
thirds  of  all  the  members  present,  which  two-thirds  shall  include  a  majority  of  the  mem- 
bers elected  to  that  house,  it  shall  become  a  law,  notwithstanding  the  objections  of  the 
Governor.  If  he  approve  the  general  purpose  of  any  bill  or  joint  resolution,  but  dis- 
approve any  part  or  parts  thereof,  he  may  return  it,  with  recommendations  for  its 
amendment,  to  the  house  in  which  it  originated;  whereupon  the  same  proceedings 
shall  be  had  in  both  houses  upon  the  said  bill  or  joint  resolution,  and  his  said  recom- 
mendations in  relation  to  its  amendment,  as  is  above  provided,  in  relation  to  a  bill  or 
joint  resolution,  which  he  shall  have  returned  without  his  approval,  and  his  objections 
thereto:  Provided,  that,  if  after  such  reconsideration,  both  houses,  by  a  vote  of  a  majority 
of  the  mem-bers  present  in  each,  shall  agree  to  amend  the  said  bill  or  joint  resolution, 
in  accordance  with  his  recommendations  in  relation  thereto,  or  either  house  by  such  vote 
shall  fail  or  refuse  to  so  amend  it,  then,  and  in  either  case,  the  said  bill  or  joint  resolu- 
tion shall  be  again  sent  to  him,  and  he  may  act  upon  it  as  if  it  were  then  before  him 
for  the  first  time.  The  Governor  shall  have  the  right  to  veto  any  item  or  items  in  an 
appropriation  bill  and  approve  the  others.  But  in  all  the  cases  above  set  forth  the  votes 
of  both  houses  shall  be  determined  by  ayes  and  noes,  and  the  names  of  the  members 
voting  for  and  against  the  bill  or  joint  resolution  shall  be  entered  on  the  journal  of  each 
house,  respectively.  If  any  bill  or  resolution  shall  not  be  returned  by  the  Governor 
within  five  days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law  in  like  manner  as  if  he  had  signed  it,  unless  the  General  Assembly  shall, 
by  their  adjournment,  prevent  such  return,  in  which  case  it  shall  be  a  law  if  signed  by 
the  Governor  within  ten  days  after  such  final  adjournment,  but  not  otherwise. 

Mr.  Walker:    I  offer  the  following  amendment  to  Section  8: 

♦  Strike  out  the  words  beginning  with  the  word  "Governor,"  in  line  33,  down  to  and 
including  the  word  "others,"  in  line  35. 

Mr.  President,  I  will  simply  state  that  that  language  was  not  a  part  of  the  written 
report  of  the  Committee  on  the  Executive  Department.  It  was  inserted  by  an  amend- 
ment adopted  by  the^Committee  of  the  Whole,  and  it  seems  to  me  unwise.  The  report 
makes  a  provision,  which  never  existed  before,  for  bringing  the  Governor  and  the 
General  Assembly  in  closer  relations,  and  allows  the  Governor,  in  case  he  approves 
the  purpose  of  any  general  measure,  but  disapproves  of  any  special  item  in  it,  to  return 
that  measure  to  the  General  Assembly,  calling  their  attention  to  the  special  matter 
that  he  thinks  unwise.    It  gives  them  an  opportunity  to  reconsider,  if  they  are.  disposed 


DEBATES  OP  THE  COXSTITUTIOXAL  COXY:l,.,  f  lOX  OF  VIRGINIA. 


1875 


to  do  so,  and  make  the  change.  If  they  are  not  disposed  to  make  it  they  can  send  it 
back  to  the  Governor,  and  then  it  comes  before  him  as  it  would  have  orginally  come 
before  him. 

It  seems  to  me  that  is  quite  as  far  as  the  Constitution  ought  to  go,  and  that  it  would 
be  sufficient  to  cover  the  case  of  an  item  in  an  appropriation  bill  which  the  Governor 
might  think  would  be  an  unwise  and  improper  item;  and  after  he  has  called  the  atten- 
tion of  the  members  of  the  General  Assembly  to  that  matter  and  given  them  an  oppor- 
tunity to  reconsider  it,  I  think  that  is  as  far  as  the  Governor  should  go  in  a  matter  of 
legislation.    I  hope  the  amendment  will  be  adopted  and  the  words  stricken  out. 

Mr.  Meredith:  Mr.  President,  the  language  referred  to  by  the  gentleman  from 
Northumberland  (Mr.  Walker)  was  inserted  after  consideration  in  Committee  of  the 
Whole  upon  amendments  offered  by  myself.  I  earnestly  hope  the  language  will  be  left 
in  the  bill  as  reported  from  the  Committee  of  the  Whole. 

I  think  we  recognize  the  fact  that  an  effort  has  been  made  in  the  report  of  the 
Committee  on  the  Legislative  Department  to  protect,  as  far  as  possible,  the  finances 
of  the  State  in  regard  to  bills,  and  the  manner  in  which  they  shall  be  passed,  affecting 
the  finances  of  the  State.  But  now  it  is  proposed  to  put  it  in  the  power  of  the  Legisla- 
ture to  tie  the  hands  of  the  Governor  in  regard  to  any  separate  item  in  an  appropria- 
tion bill.  In  other  words,  under  th(  proposed  amendment  here,  or  the  proposed  report,, 
you  will  have  a  Governor's  hands  Lied  as  to  the  separate  items  of  an  appropriation  bill, 
unless  he  shall  veto  the  whole  bill,  except  that  he  can  return  it  to  the  House  and  suggest 
that  he  thinks  there  ought  to  be  some  amendments  made.  Then  what?  If  they  refuse 
to  make  those  amendments,  what  is  the  vote  by  which  the  financesi  of  the  State  are 
to  be  effected?    A  majority  vote. 

Mr.  Cameron:  The  gentleman  will  remember  that  when  the  Governor  is  thrown 
back  upon  his  veto  power  he  has  the  same  right  then  as  he  has  about  any  other  bilL 

Mr.  Meredith:    Not  as  to  a  single  item  of  a  bill. 

Mr.  Cameron:  No. 

Mr.  Meredith:  But  you  propose  to  say  to  the  Governor,  "You  shall  veto  an  entire 
appropriation  bill  or  none  of  it."  That  is  the  proposition  that  is  made  by  the  chairman 
of  the  committee,  and  would  be  the  effect  if  the  amendment  offered  by  the  gentleman 
from  Northumberland  (Mr.  Walker)  is  carried. 

You  are  going  to  say  to  the  Governor,  "^Vhatever  there  may  be  in  the  appropria- 
tion bill,  although  it  may  affect  the  administration  of  the  State,  you  shall  veto  the 
whole  of  it  or  none  of  it;  but  we  will  allow  you  to  return  it  to  us  with  recommenda- 
tions of  what  you  think  is  proper,  and  then  by  a  majority  vote  we  will  overcome  it." 
In  other  words,  as  to  everj^  otner  veto  except  the  veto  of  an  item  in  an  appropriation 
bill,  if  this  report  is  adopted,  the  Governor  will  be  protected  by  a  two-thirds  vote;  but 
now  you  propose  that  he  either  shall  vote  an  appropriation  bill  in  whole  or  he  shall 
follow  exactly  the  same  course  as  to  the  finances  that  he  would  as  to  some  general 
provision  of  law,  whether  it  be  a  question  of  evidence,  a  question  of  court  procedure, 
or  any  small  matter  of  that  kind.  You  propose  that  the  finances  of  the  State  shall  be 
put  upon  the  same  footing  as  any  statute  of  a  general  nature. 

I  insist  that  as  to  the  finances  of  the  State  there  ought  to  be  a  distinction,  and 
we  ought  to  require  a  two-thirds  vote.  You  require  it  as  to  the  whole  bill.  Why  not 
require  it  as  to  any  item  in  the  bill? 

Mr.  Barbour:  I  wish  to  call  the  gentleman's  attention  to  the  fact  that  this  really 
does  not  make  any  distinction  between  the  finance  bills  and  the  others,  because  the 
Constitution  prohibits  any  bill  from  covering  more  than  one  subject,  except  appropria- 
tion bills,  which  cover  the  whole  range  of  expenses  of  the  State. 

Mr.  Meredith:  That  is  what  I  say.  An  appropriation  bill  is  sometimes  composed 
of  twenty  absolutely  different  subjects,  just  as  distinct  as  they  could  be  if  they  were  in 
separate  bills;  and  yet,  by  the  method  of  passing  these  bills,  they  are  lumped  together, 
and  upon  the  Governor  is  put  the  responsibility  of  vetoing  all  or  none. 

Is  not  that  tying  the  hands  of  the  Governor  as  to  the  veto  power?    I  wish  some 


1876 


DEBATES  OF  THE  COXSTITUTIONAL  COXVENTIOX  OF  VIRGINIA. 


gentleman  to  tell  me  the  harm  that  can  be  done  by  allowing  the  Governor  to  say  as  to 
this  item  or  that  item,  "I  veto  it,  and  1  put  the  responsibility  upon  you."  You  have 
shifted  the  responsibility  to  the  Governor.  You  say  to  the  Governor,  "We  put  the  re- 
sponsibility upon  you,  and  you  shall  veto  the  whole  bill  or  you  shall  not  veto  any  part 
of  it."  I  respectfully  submit  that  instead  of  the  amendment  giving  us  protection,  we 
will  be  injured  by  it  in  allowing  a  recommendation  as  to  an  item  in  an  appropriation 
bill  to  be  overcome  by  a  majority  vote. 

Mr.  Flood:    It  takes  a  majority  of  all  elected. 

Mr.  Meredith:  We  should  require  a  two-thirds  vote.  It  does  not  make  any  differ- 
ence whether  it  is  a  majority  of  all  elected  or  of  all  present.  I  wish  to  ask  what  harm 
can  be  done  by  allowing  the  Governor  to  veto  a  single  item  in  a  bill. 

Mr.  Flood:  I  will  tell  the  gentleman  the  harm.  It  gives  the  Governor,  as  to  that 
special  item,  the  power  of  sixteen  members  of  the  Legislature,  which  he  has  never 
heretofore  had. 

Mr.  Meredith:  Then  the  same  harm  exists  as  to  a  veto  of  the  whole  bill,  does 
it  not?    I  am  asking  for  the  extra  harm. 

I  say  you  are  uprooting  the  veto  power  which  is  given  the  Governor  for  the  pro- 
tection of  the  people.  As  to  what  measures  are  you  uprooting  it?  As  to  the  finances 
of  the  State.  A  general  appropriation  bill  contains  sometimes  twenty  different  sub- 
jects), just  as  distinct  as  if  they  were  questions  of  law  procedure  in  court,  questions 
of  evidence,  questions  of  summoning  witnesses,  questions  as  tO'  the  manner  in  which 
you  shall  serve  notice  upon  a  corporation.  Those  are  all  distinct  things,  put  in  distinct 
bills,  and  the  Governor  can  approve  one  or  veto  another;  but  when  you  come  to  the 
appropriation  bill  you  say  to  him,  "You  shall  not  touch  one  of  these  separate  and 
distinct  subjects  unless  you  touch  all." 

Mr.  Dunaway:  Mr.  President,  I  suppose  it  is  understood,  of  course,  that  that  veto 
will  take  the  same  course  as  vetoes  of  other  measures. 

Mr.  Meredith:  Undoubtedly  so.  The  General  Assembly  ought  to  have  the  power 
to  overrule  the  veto  by  a  two-thirds  vote. 

It  has  been  intimated  on  the  floor  of  this  body,  and  elsewhere,  that  it  gives  the 
Governor  the  opportunity  to  play  to  the  galleries,  as  it  were.  I  do  not  believe  the 
Governor  is  going  to  play  to  the  galleries  in  matters  of  that  kind.  If  he  does  we  had 
better  protect  ourselves,,  and  let  him  play  to  the  galleries  and  put  the  responsibility 
upon  the  Legislature.  If  it  is  a  mere  play  to  the  galleries  a  two-thirds  vote  will  over- 
ride it.  We  can  protect  ourselves  from  the  play  to  the  galleries,  but  how  can  we  pro- 
tect ourselves  when  in  a  general  appropriation  bill,  upon  which  the  entire  expense  of 
the  State  and  all  its  departments  depends,  there  is  an  item  of  another  nature  for 
$2,000  or  $5,000,  and  we  compel  the  Governor  to  veto  the  entire  appropriation  bill  in 
order  to  veto  that  one  objectionable  item? 

Mr.  Walker:  The  last  part  of  Section  8  provided  that  "if  any  bill  or  resolution 
shall  not  be  returned  by  the  Governor  within  five  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him  the  same  shall  be  a  law  in  like  manner  as  if  he  had 
signed  it,  unless  the  General  Assembly  shall,  by  their  adjournment,  prevent  such  re- 
turn; in  which  case  it  shall  be  a  law  if  signed  by  the  Governor  within  ten  days  after 
such  final  adjournment,  but  not  otherwise." 

Now  Siuppose  an  appropriation  bill  is  passed  during  the  last  stages  of  the  session 
and  the  General  Assembly  adjourns.  If  the  Governor  chooses  to  sign  it  it  is  all  right 
within  ten  days  after  the  adjournment.  "^k^Tiat  effect  would  this  provision  you  have 
here,  as  to  allowing  him  to  veto  any  special  item  in  the  bill,  have  on  that?  Would  it 
not  make  some  doubt  about  the  construction  of  this  constitutional  provision  in  respect 
to  a  case  of  that  sort?  Would  it  not  put  it  on  a  different  footing  from  any  other  bills 
which  might  be  held  over  by  the  Governor  until  after  the  adjournment  of  the  General 
Assembly? 

Mr.  Meredith:  It  distinctly  provides  that  he  may  approve  the  others.  It  provides 
that  he  may  veto  any  item  in  the  bill  and  approve  the  others. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


1877 


I  submit  to  the  Conyentioii  that  the  Governor  should  have  the  power  to  pass  his 
judgment  upon  each  single  specific  item  of  an  appropriation  bill  containing  twenty 
or  more  different  subjects. 

:\Ir.  Cameron:  :\Ir.  President,  the  gentleman  from  Richmond  places  this  matter  in 
an  entirely  wrong  light  before  the  Convention  when  he  treats  it  as  an  innovation.  He 
says  '""We  have  confined  the  Governor  to  so  and  so.  You  take  from  the  Governor  so 
and  so.""  Is  it  not  a  fact  that  up  to  1850  the  Governor  had  no  veto  power  in  Virginia? 
Is  it  not  a  fact  that  since  then  he  has  had  nothing  but  the  absolute  alternative  of  veto 
or  approval  on  all  bills,  and  the  whole  of  all  bills  presented  to  him?  Is  it  not  a  fact 
that  this  committee,  so  far  from  binding  the  hands — 

Mr.  Meredith:  My  statement  that,  "Yoti  are  taking  away  power  from  the  Gov- 
ernor." means  that  you  are  providing  by  the  proposed  amendment  that  he  shall  not 
have  it.  I  never  said  he  did  have  it.  but  I  say  that  this  will  be  the  future  Constitution, 
and  by  it  you  are  taking  away  the  power  the  Governor  ought  to  have. 

Mr.  Cameron:  The  power  of  the  Governor  has  been  broadened  here  heretofore, 
and  I  was  beginning  to  say  the  Governor  of  the  Commonwealth  had  no  recourse,  where 
a  bill  or  a  joint  resolution  did  not  meet  the  approval  of  his  judgment,  but  to  veto  the 
whole  and  to  destroy  that  act  of  legislation,  unless  supported  by  a  two-thirds  vote  in 
each  house  of  the  General  Assembly,  or  to  approve  a  bill  which  contained  matter  that 
did  not  meet  his  approval. 

Xow.  :\Ir.  President,  seeing  the  difficulty  in  that  direction  and  not  being  opposed 
to  progress,  this  committee  unanimously  suggested,  and  was  forttmate  enough  to 
receive  the  support  of  the  Committee  of  the  "\ATiole  on  that  subject,  that  on  every  bill 
or  joint  resolution  passed  by  the  General  Assembly,  if  the  Governor,  after  examination, 
should  find  that  certain  portions  of  it  were  objectionable,  while  the  general  purpose 
of  the  bill  met  his  approval,  he  could,  withotit  coming  to  a  direct  confiict  with  the  legis- 
lative branch  of  the  government,  return  that  bill,  stating  wherein  he  thought  it  capable 
of  improvement  and  respectfully  asking  the  General  Assembly,  which  with  himself, 
constitutes  the  law-making  power,  to  consider  if.  in  their  mature  wisdom,  they  could 
not  meet  his  A'iews.  We  were  careful  there  not  to  put  the  General  Assembly  upon  a 
two-thirds  A"ote.  We  were  trying  to  establish  better  relations  between  the  Executive 
and  the  General  Assembly.  So  we  provided  for  giving  the  Governor  an  entirely  new 
power,  which  he  never  has  had  since  the  establishment  of  government  in  Virginia. 

Mr.  Meredith:  Is  it  not  perfectly  fair  and  perfectly  proper  that  the  Governor 
should  have  the  power,  when  one  bill  is  confined  to  one  subject,  and  when  one  bill 
contains  twenty  different  subjects,  why  should  he  be  required  to  veto  twenty  different 
subjects  rather  than  vetoing  one? 

Mr.  Cameron:  I  will  come  to  that  if  the  gentleman  will  allow  me  to  proceed  by 
regular  stages,  and  it  will  not  be  very  long  before  I  reach  that  point  of  the  discus.sion. 

Vlien  you  come  to  consider  financial  matters  there  is  no  truth  more  broadly  laid 
down  in  the  system  tmder  which  we  live,  or  more  tmiversally  accepted,  than  that  the 
Legislature  is  the  voice  of  the  people  as  to  the  appropriation  of  money. 

Mr.  Meredith:  :\Iay  I  interrupt  you  once  more?  Will  you  tell  me  what  would  be 
the  general  purpose  of  an  appropriation  bill  with  twenty  different  items  in  it? 

Mr.  Cameron:  A  general  appropriation  bill  is  to  provide  funds  for  the  maintenance 
of  the  government. 

Now  I  will  try  and  answer  some  of  the  gentleman's  questions.  The  House  of 
Delegates  ■  and  the  Senate  constitute  the  governors  of  the  money  of  the  people,  the 
Executive  having  never  been  so  considered  in  any  government  that  partakes  of  repre- 
sentative features.  Parliament  pushing  its  claim,  in  England,  to  absolute  control 
until  the  executive  is  silent  in  that  regard. 

Mr.  Meredith:  If  the  gentleman's  historical  allusions  are  correct  why  is  it  that 
you  destroy  the  power  of  the  people  by  allowing  the  Governor  to  veto  an  entire  appro- 
priation bill  and  will  not  allow  him  to  veto  one  little  item? 


1878 


DEBATES  OE  THE  CONSTITUTIOjSTAL  CONVENTION  OE  VIRGINIA. 


Mr.  Cameron:  Because  it  goes  then  to  the  Legislature  and  it  stands  as  their  judg- 
ment, if,  after  mature  deliberation,  a  majority  fixed,  by  the  Constitution  declare  that 
it  shall  stand. 

I  was  going  to  say,  Mr.  President  and  gentlemen,  that  an  appropriation  bill  is  not 
an  accidental  hotch-potch  of  items.  It  is  prepared,  one  in  reference  to  another.  It 
stands  as  a  whole,  if  it  is  properly  prepared.  It  is  made  with  a  reference  to  the  object 
sought,  with  a  reference  to  the  means  in  hand,  and  is  made  by  the  legislators,  who  are 
responsible  tO'  the  body  of  the  people  for  their  money  and  its  use,  and  yet  the  proposi- 
tion is  that  you  will  allow  an  individual  head  of  the  executive  department,  no  matter 
how  exalted  in  character,  no  matter  how  great  in  wisdom  and  business  capacity,  to 
step  in  and,  with  a  stroke  of  his  pen,  by  cutting  off  this  item  here  and  that  item  there, 
to  mutilate  the  complete  and  coherent  work  of  the  representatives  of  the  people.  I 
think  that  is  one  valid  argument  against  the  gentleman's  provision.  Another  argument 
which  is  valid  is  that  an  astute  man  could  use  that  pow^er  to  political  advantage;  and  I 
do  not  think  that  objection  can  be  whistled  down  the  wind. 

In  every  appropriation  bill  the  necessities  of  government  call  upon  the  independ- 
ence of  legislators  to  do  things  that  would  not  meet  the  breeze  of  popular  approval; 
and  time  and  again  it  would  be  in  the  powder  of  the  Executive  to  give  the  seal  of  his 
approval  to  the  ].opular  cnlch-penny  features  of  a  bill  and  to  veto  those,  no  matter 
how  beneficient  or  wise  they  might  bo  in  their  permanent  effect,  as  to  which  he  knew 
there  was  popular  oppos'.tion. 

I  believe  this  is  an  innovation.  Instead  of  our  having  put  any  clamp  upon  the 
power  of  the  Governor  we  have  already  extended  his  discretion.  I  believe  that  this 
to-day  would  be  an  innovation  in  the  wrong  direction,  that  we  would  be  giving  the 
Executive  too  much  power,  and  tine  opportunity  to  do  mischief. 

Under  this  report,  as  we  originally  submitted  it,  and  with  the  adoption  of  the 
amendment  proposed  by  my  colleague  on  the  committee  (Mr.  Walker),  the  Governor, 
if  an  appropriation  bill  doesi  not  meet  his  approval  in  its  entirety,  can  do  what  he 
never  yet  has  been  able  to  do  since  this  government  was  founded — he  can  address 
a  note  to  the  General  Assembly,  or  to  the  house  which  originated  the  appropriation 
bill,  and  say,  "I  find  some  items  here  which  do  not  seem  wise  or  just.  I  ask,  without 
questioning  your  wisdom  or  your  honesty  of  purpose,  that  you  will  take  this  matter 
under  consideration  and  give  it  more  mature  thought.  These  are  what  I  object  to. 
The  rest  of  the  bill,  I  say,  ia  right." 

The  General  Assembly  then  takes  up  that  matter,  and  by  a  mere  majority  vote 
can  accede  to  that  request  of  the  Executive  and  remodel  the  bill;  but  if,  after  mature 
thought  and  reconsideration,  they  still  hold  to  their  first  opinion,  then  the  result  is, 
as  it  ought  tO'  be,  that  the  will  of  the  representatives  of  the  people  obtains  unless  the 
Governor  interposes  his  veto,  and  then  that  obtains  unless  two-thirds  of  the  members 
of  both  houses  agree  to  over-ride  him. 

I  cannot  conceive  any  more  equitable  arrangement  than  this.  We  have  extended 
the  power  of  the  Governor.  I  believe  we  have  given  him  all  the  power  he  ought  to 
have,  and  I  believe  that  to  give  him  any  more  would  be  plunging  upon  the  sea  of 
experiment  and  invading  the  territory  of  danger.    I  hope  the  amendment  will  prevail. 

Mr.  Hancock:  Mr.  President,  the  object  and  purpose  of  allow^ing  the  Governor 
to  veto  a  bill  is  to  prevent  hasty  and  improper  legislation.  It  is  to  prevent  measures 
being  adopted  that  would  be  injurious  to  the  Commonwealth.  When  the  Legislature 
passes  a  measure  and  reports  it  to  the  Governor  he  should  take  it  as  a  complete 
measure;  he  should  examine  it  to  see  whether  it  is  a  proper  measure  and  whether  he 
should  approve  it  or  veto  it.  If  it  is  an  improper  measure  he  vetoes  it  and  it  goes 
back,  and  the  General  Assembly,  in  order  to  have  it  become  a  law  must  pass  it  over 
his  veto  by  a  two-thirds  vote.  Now,  take  an  appropriation  bill.  The  appropriation 
bill  is  composed,  perhaps,  of  one  hundred  or  more  items.  Many  of  these  items  may 
have  been  passed  by  the  General  Assembly  by  a  majority  of  only  two  or  three  votes. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXLl. 


isr9 


If  The  Governor  has  the  right  to  take  any  one  of  these  items  out  that  he  thinks  proper, 
if  he  should  be  of  the  opposing  party,  and  has  enough  members  in  the  Legislature 
of  his  party  to  stand  by  him,  he  might  be  able  to  strike  out  those  measures  which  are 
obnoxious  to  him  and  which  were  passed  by  a  very  small  vote  of  the  General  Assembly, 
and  be  able,  by  that  means,  to  destroy  an  appropriation  bill  in  its  integrity  and  carry 
out  the  purpose  which  he  and  his  party  may  have  had  in  view  at  the  time. 

It  seems  to  me,  Mr.  President,  that  to  allow  the  Governor  to  veto  any  single  item, 
or  several  items,  in  an  appropriation  bill,  and  not  to  require  him  to  veto  the  whole  bill, 
is  an  invasion  of  the  legislative  department  .  Legislation  is  nothing  in  the  world  but 
compromise  after  all.  There  are  one  hundred  men  in  the  House  of  Delegates  and  forty 
in  the  Senate,  and  after  long  and  laborious  efforts  for  days,  and  sometimes  weeks,  they 
succeed  in  passing  an  appropriation  bill.  Some  items  in  the  bill  have  been  passed  by 
a  bare  majority,  but  when  the  vrhole  bill  comes  up  upon  its  passage  it  may  be  carried 
by  a  large  majority.  Then  it  is  sent  to  the  Governor  for  his  approval.  If  the  Governor 
should  be  of  the  opposing  party  he  has  only  to  look  at  the  jotirnals  of  the  House  and 
Senate  and  see  how  the  vote  stands  upon  the  separate  and  independent  items,  and 
he  may  strike  out  those  which  he  thinks  the  Legislature  will  not  be  able  to  carry 
through  OA-er  his  veto  and  allow  the  others  to  remain.  There  v^ould  be  a  dissected 
appropriation  bill  that'v.'ould  not  be  acceptable  to  the  majority  and  would  be  very 
objectionable  to  the  people  at  large. 

He  ought  to  veto  the  whole  measure  or  not  be  allowed  to  touch  it.  It  is  a  piece 
of  completed  legislation,  and  he  ought  not  be  allowed  to  destroy  it  by  taking  the  execu- 
tive Ivnife  and  cutting  off  such  portions  of  it  as  he  may  think  to  be  unpopular  and  thus 
destroy  an  appropriation  bill  passed  by  the  General  Assembly. 

I  hope,  therefore,  that  the  Convention  will  not  allow  this  to  be  done.  This  matter 
was  carefully  considered  in  the  committee,  and  the  members  of  the  committee  came 
to  the  unanimous  conclusion  that  all  that  the  Governor  should  be  allowed  to  do  with  a 
bill  was  either  to  approve  it,  veto  it  or  to  send  it  back  to  the  General  Assembly  and 
point  out  the  objectionable  items  which  the  Governor  thinks  should  be  stricken  out. 
If  the  General  Assembly  corrects  it.  as  he  recommends,  then  it  will  be  approved  by 
him  when  the  bill  is  returned.  If  the  General  Assembly  refuses  to  reconsider  and  make 
the  changes  suggested  then  the  Governor  is  allowed  to  veto  the  bill  when  it  is  returned, 
but  not  to  veto  a  part  of  it. 

Who  will  say  that  any  such  power  as  this  shotild  be  given  to-  the  Governor,  to 
dissect  and  change  and  modify  legislation  that  has  been  enacted  by  the  wisdom  and  hard 
labor  of  the  General  Assembly?  Let  the  Governor  say:  ''This  piece  of  legislation  is 
improper  and  should  not  be  the  law  of  this  Commonwealth  and  I  place  my  veto  upon 
it."  but  do  not.  I  pray  you.  allow  him  to  veto  such  portion  of  the  appropriation  bill  as 
may  suit  his  pleasure  and  then  send  it  back  in  its  mutilated  form  to  be  passed  upon  by 
the  General  Assembly.  Let  the  General  Assembly  be  held  resposible  for  the  passage 
of  the  bill  and  the  Governor  responsible  for  his  veto  of  the  bill,  but  do  not  permit  any 
divided  responsibility.    I  hope  that  the  amendment  will  be  adopted. 

The  president:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Northumberland  (Mr.  WalkerL 

The  question  was  ordered,  and  being  taken,  resulted — ayes,  20 :  noes.  50. 

The  amendment  was  rejected. 

The  President:    The  question  recurs  on  the  adoption  of  Section  S. 
Section  8  was  adopted. 

The  President:    The  Secretary  will  read  Section  9. 

Sec.  9.  A  Lieutenant-Governor  shall  be  elected  at  the  same  time  and  for  the  same 
term  as  the  Governor,  and  his  qualifications  and  the  manner  of  his  election,  in  all 
respects,  shall  be  the  same. 


Mr.  Summers:    I  move  that  Section  9  be  stricken  out.    T^Tiile  I  am  on  the  floor 


1880 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


1  will  say  I  propose  to  substitute  the  office  of  President  of  the  Senate  for  that  of 
Lieutenant-Governor,  and  I  call  upon  all  reformers  and  retrenchers  to  support  my  views. 

The  amendment  was  rejected. 

Section  9  was  adopted. 

Section  10  was  read  and  adopted  without  amendment. 

The  President:    The  Secretary  will  read  section  11.  ' 

Sec.  11.  The  Lieutenant-Governor  shall  be  president  of  the  Senate,  but  shall  have 
no  vote  except  in  case  of  an  equal  division;  and  while  acting  as  such  shall  receive  a 
compensation  equal  to  that  allowed  to  the  Speaker  of  the  House  of  Delegates.  For  his 
services  as  a  member  of  the  Board  of  Public  Works,  while  actually  employed  as  such, 
he  shall  receive  a  per  diem  to  be  fixed  by  law. 

Mr.  Withers:  Mr.  President,  I  move  to  strike  out,  beginning  with  the  word  "for," 
down  to  the  end  of  the  section.  I  do  not  believe  both  the  Lieutenant-Governor  and 
the  Governor  ought  to  be  members  of  a  Board  of  Public  Works,  even  if  we  have  such, 
a  Board  of  Public  Works  constituted  in  the  way  indicated  here. 

Mr.  Dunaway:  Mr.  President,  I  wish  to  call  attention  to  the  fact  that  if  the  amend- 
ment should  prevail  it  would  not  accomplish  the  object  intended  by  the  gentleman 
who  offered  it.  The  Lieutenant-Governor  may  still  be  upon  the  Board  of  Public  Works, 
and  the  only  effect  of  it  would  be  to  take  away  his  per  diem  while  actually  serving  as 
a  member  of  the  board.  The  amendment  does  not  propose  that  he  shall  not  be  a 
member.  It  might  be  proposed  in  some  other  part  of  the  Constitution  that  he  should 
or  should  not  be  a  member.  The  only  effect  of  the  amendment  would  be  to  deprive  the 
Lieutenant-Governor  of  his  per  diem  while  he  is  actually  discharging  his  duties. 

Mr.  Withers:  Mr.  President,  the  very  object  for  which  I  offered  this  amendment 
is  to  call  the  attention  of  the  Convention  to  two  or  three  facts  in  connection  with  the 
proposed  Board  of  Public  Works,,  as  brought  in  by  the  committee  in  Section  18  at  the 
bottom  of  page  9. 

In  the  first  place,  as  the  board  is  now  constituted,  and  as  I  understand  it,  the 
Treasurer,  the  Governor  and  his  First  Auditor,  or  the  Auditor  of  Public  Accounts,  get 
nothing  except  their  traveling  expenses.  Those  gentlemen  admit  they  have  no  time  to 
make  proper  assessments  of  the  corporate  properties  in  Virginia.  The  putting  upon 
the  board  of  two  additional  members  of  the  executive  branch  of  the  government — the 
Attorney-General  and  the  Lieutenant-Governor — will  not  enable  it  to  properly  assess 
the  corporate  properties  of  Virginia;  and  the  allowance  to  the  Lieutenant-Governor  of 
a  per  diem  for  the  time  he  is  actually  engaged  in  those  duties  will  be  either  an  injustice 
to  the  other  members  of  the  board  or  will  necessitate  the  allowance  to  them  of  a  per 
diem. 

Mr.  Fairfax:    Are  not  all  the  officers  who  are  on  the  board  getting  an  annual 
salary  from  the  State? 

Mr.  Withers:  Yes,  sir;  I  understand  that  thoroughly.  The  reason  the  Lieutenant- 
Governor  does  not  get  an  annual  salary  is  because  he  has  no  annual  duty  to  perform, 
but  for  the  time  he  performs  the  duty  he  is  paid  the  sum  of  $8  per  day. 

Now,  Mr.  President,  I  do  not  see  how  it  is  possible,  directly  or  indirectly,  for  this 
Convention  to  give  its  sanction  to  the  formation  of  a  board  for  the  assessment  of  / 
corporate  properties  when  that  board,  as  now  constituted,  admits  it  has  not  the  time  to 
do  the  work.  I  believe,  therefore,  before  committing  ourselves  to  this  policy,  the  pro- 
vision should  be  stricken  out  until  the  action  of  the  Convention  as  to  the  composition 
of  the  board  is  determined,  and  then,  if  it  adheres  to  this  plan,  the  provision  could  be 
inserted  by  the  Committee  on  Final  Revision  and  adjustment. 

The  ayes  and  noes  being  taken,  the  result  was  announced — ayes,  32;  noes,  87. 

The  amendment  was  rejected. 

Mr.  Walker:  Mr.  President,  it  seems  to  me  it  would  be  better  not  to  finally  adopt 
Section  11  or  Section  18,  as  both  those  sections  have  reference  to  a  board  of  Public 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OE  VIRGINIA.  1881 

Works,  and  as  the  Convention,  as  I  understand  it,  will  have  to  decide  sometime  in  the 
future  whether  it  will  or  will  not  establish  a  Corporation  Commission.  If  that  com- 
mission should  be  established  the  duties  which  are  now  performed  by  the  Board  of 
Public  Works  would  be  assigned  to  the  commission  and  the  Board  of  Public  Works 
abolished.  Therefore,  I  think  it  would  be  unwise  to  attempt  to  fix  irrevocably  now  any 
provision  in  regard  to  a  Board  of  Public  Works,  as  that  matter  ought  to  be  first  decided 
on,  and  that  it  would  be  best  to  pass  by  Sections  11  and  18,  those  being  the  only  sections 
in  the  report  having  reference  to  the  Board  of  Public  Works. 

It  seems  to  me  that  would  be  especially  desirable  in  view  of  the  fact  that  there  are 
in  the  report  other  sections  still  blank  which  would  have  reference  to  that  matter, 
because  they  relate  to  providing  for  the  manner  of  election  of  certain  officers  who 
would  be  members  of  that  board. 

Mr.  Cameron:  Mr.  President,  in  view  of  all  the  circumstances,  in  view  of  the 
fact  that  we  have  several  other  sections  delayed  on  the  same  account,  I  think  nothing 
would  be  lost  by  passing  by  the  consideration  of  Section  11  and  18  until  the  matter 
shall  be  further  determined.    I,  therefore,  make  that  motion. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Petersburg 
(Mr.  Cameron),  chairman  of  the  committee,  to  pass  by  Sections  11  and  18. 

The  motion  was  agreed  to. 

Section  12  relating  to  the  office  of  Secretary  of  the  commonwealth,  was  then  read. 
Mr.  Portlock:    I  offer  the  followiug  amendment  to  that  section: 

Resolved,  That  Section  12  of  the  report  of  the  Committee  on  the  Executive  Depart- 
ment be  recommitted  to  that  committee. 

f 

Mr.  President,  I  simply  have  a  word  to  say  in  this  connection.  I  presume  there  will 
be  no  objection  on  the  part  of  the  chairman  of  the  committee  to  treating  this  section 
as  he  agreed  Section  11  should  be  treated,  and  referring  it  back  to  the  committee. 

I  took  the  position  before  the  Committee  of  the  Whole,  when  this  matter  came 
up,  that  this  section,  referring  to  the  Secretary  of  the  Commonwealth,  especially  as  to 
the  provision  therein  made  for  his  election  to  office,  as  also  the  combining  of  his  office 
with  that  of  the  Register  of  the  Land  Office,  was  injudicious  and  againt-'t  the  best 
interests  of  the  State,  when  we  come  to  consider  the  importance  of  that  office,  the 
small  salary  involved  and  the  fact  that  Ave  must  offer  some  inducements  beyond  those 
offered  in  this  section  as  to  his  selection,  in  order  to  obtain  the  service  of  an  efficient 
officer  in  that  position. 

Now,  Mr.  President,  without  enlarging  upon  the  matter  at  this  time,  I  simply 
want  to  call  the  attention  of  the  Convention  to  the  fact  that  the  committee  has  not  onlj- 
passed  by  Section  11  and  recommitted  it,  but  that  there  are  several  other  matters  yet 
to  be  considered  by  the  committee,  as  shown  by  the  report.  You  will  find,  on  page  9, 
that  there  are  various  matters  to  be  acted  on,  the  first  being  tliat  of  the  office  of 
Treasurer,  which  has  been  wholly  passed  by  up  to  this  time;  that  the  office  of  Auditor 
of  Public  Accounts  has  not  been  considered,  or  certainly  has  not  been  acted  upon  by 
the  committee;  that  nothing  has  been  reported  in  conection  with  the  office  of  Second 
Auditor,  and  the  same  is  true  with  reference  to  the  official  bonds  of  officers  handling 
finances  of  the  State.  The  committee  have  also  passed  by  a  section  here  relating  to 
a  Bureau  of  Argiculture  and  a  Board  of  Public  Works. 

Inasmuch  as  the  committee  have  all  these  matters  to  act  upon  hereafter,  not  having 
acted  upon  them  or  reported  upon  them,  and  are  to  consider  them  in  committee  as  a 
standing  committee,  I  hope  the  committee  will  agree  to  recommit  Section  12,  along 
with  all  these  other  sections  in  view  of  the  fact,  as  I  consider  it,  that  a  grave  mistake 
has  been  made,  and  I  am  satisfied  it  is  one  which  even  members  of  the  committee, 
certainly  som^e  of  them,  will  agree  to  correct. 

Mr.  Cameron:    Mr.  President,  I  will  say  for  the  information  of  the  gentleman  from 
119 — Const.  Deb. 


1882 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Norfolk  county  (Mr.  Portlock)  that  the  Committee  on  the  Executive  Department  has 
acted  on  each  one  of  these  current  subjects,  but,  subsequent  to  arriving  at  a  decision 
and  after  the  report  was  made  to  the  Committee  of  the  Whole,  the  fact  developed  that 
these  various  matters  which  have  been  passed  by  heretofore  were  in  the  hands  of  other 
committees  of  this  body,  and  in  such  a  state  of  progress  as  enabled  us  to  siee  the  strong 
probability,  if  not  the  certainty,  that  our  action  would  have  to  be  modified  in  regard 
hereto  by  the  action  taken  by  our  committee.  I  should  have  no  objection  to  passing 
by  this  section  if  the  same  reason,  or  others  as  good,  could  be  shown  for  so  doing;  but 
I  do  not  see,  I  must  confess,  why  this  body  is  not  as  able  now  to  determine  the  ques- 
tions raised  by  the  gentleman,  and  as  to  the  wisdom  or  unwisdom  of  the  election  of  the 
Secretary  of  the  Commonwealth  by  the  people,  and  the  wisdom  or  unwisdom  of  merging 
the  office  of  Register  of  the  Land  Office  into  that  office  as  at  any  other  time.  Certainly 
the  committee  gave  both  those  questions  patient  investigation  and  rendered  its  unani- 
mous opinion  thereon. 

The  President:  The  question  is  on  the  motion  to  recommit,  made  by  the  gentle- 
man from  Norfolk  county  (Mr.  Portlock). 

The  motion  was  rejected. 

Mr.  Ayers:    I  desire  to  offer  the  following  substitute  for  Section  12: 

A  Secretary  of  the  Commonwealth  shall  be  elected  by  the  joint  vote  of  the  two 
houses  of  the  General  Assembly,  and  continue  in  office  for  the  term  of  four  years  unless 
sooner  relieved.  He  shall  keep  a  record  of  the  official  acts  of  the  Governor,  which  shall 
be  signed  by  the  Governor  and  attested  by  the  secretary,  and  when  required  he  shall  lay 
the  same,  and  any  papers,  minutes  or  vouchers  pertaining  to  his  office,  before  either 
house  of  the  General  Assembly,  and  shall  perform  such  other  duties  and  shall  receive 
such  salary  as  may  be  prescribed  by  law.  All  fees  received  by  the  secretary  shall  be 
paid  into  the  treasury. 

Mr.  Fairfax:  I  offer  as  a  substitute  for  the  amendment,  to  strike  out  all  after 
the  manner  of  his  election. 

The  amendment  of  the  gentleman  from  Wise  (Mr.  Ayers)  is  simply  the  wording 
of  the  old  Constitution.  Section  12  attempts  to  define  many  duties,  and  so  on,  that 
have  been  in  controversy  here  in  the  past  and  have  not  been  understood  properly.  I 
think  the  subjects  ought  to  be  separated. 

Mr.  Withers:    I  desire  to  offer  the  following  amendment: 

In  line  12,  after  the  last  comma,  add  the  words,  "and  to  the  office  of  Superintendent 
of  Public  Printing."  That  part  of  the  section  would  then  read:  "He  shall  discharge 
all  the  duties  heretofore  attaching  to  the  office  of  Register  of  the  Land  Office,  and  to  the 
office  of  Superintendent  of  Public  Printing,  and  such  other  duties  as  may  be  prescribed 
by  law." 

Mr.  Withers:  Mr.  President,  I  offer  this  amendment  because  under  a  general  in- 
corporation law,  it  is  to  be  presumed,  and  it  will  very  probably  be  the  case,  that  the 
office  of  Secretary  of  the  Commonwealth  will  become  the  most  important  executive 
office,  with  the  exception  of  the  office  of  Governor  and  the  Auditor  of  Public  Accounts. 

I  believe  it  is  conceded  by  everybody  who  has  made  an  investigation  of  that  offi.ce 
that  the  duties  of  Secretary  of  the  Commonwealth,  since  this  Convention  has  seen  fit 
to  put  the  control  of  the  Library  in  the  hands  of  a  commission  or  board,  which  pro- 
vision has  been  adopted  both  in  Committee  of  the  Whole  and  in  Convention,  are  prac- 
tically confined  to  two  things,  keeping  the  minute  books  of  the  official  executive  re- 
cords and  the  copying  and  issuing  of  charters.  Of  course,  the  Secretary  of  the  Com- 
monwealth has  some  other  duties  to  perform.  We  understand  that  he  signs  notaries' 
commissions  and  various  other  commissions,  that  he  certifies  certain  things  under  the 
great  seal  of  the  State;  but  I  believe  the  office  of  Secretary  of  the  Commonwealth 
should  be  made  one  of  importance  and  magnitude,  the  duties  of  which  would  be  such 
as  to  engage  the  time  and  attention  of  those  officials  who  are  called  upon  to  fill  it, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


1883 


and  in  addition  to  that  to  justify  the  payment  of  a  proper  and  efficient  salary  to  the 
official  whom  the  people  shall  select  for  that  office. 

I  believe,  Mr.  President,  that  since  our  action  of  yesterday,  by  which  the  clerk  of 
the  House  of  Delegates  is  made  the  keeper  of  the  rolls  of  Virginia,  and  that  duty  which 
was  originally  proposed  to  be  put  upon  the  Secretary  of  the  Commonwealth  has  been 
taken  from  him,  that  officer  cannot  only  acceptably  perform  such  duties  as  are  pre- 
scribed by  law  for  that  office,  but  in  addition  to  that  can  and  ought  to  perform  the 
duties  of  Register  of  the  Land  Office  and  Superintendent  of  Public  Printing. 

I  respectfully  submit  that  the  office  of  Superintendent  of  Public  Printing  prac- 
tically amounts  to  nothing  as  it  is  now  constituted  and  as  the  law  provides  for  it. 
The  Superintendent  of  Public  Printing  does  not  even  have  to,  nor  does  he,  read  the 
proof-sheets.  He  simply  makes  contracts,  lets  out  bids,  has  advertisements  printed  and 
posted,  and  returns  the  volumes  as  printed  and  bound  to  the  proper  departments  or  to 
the  General  Assembly.  He  has  practically  nothing  to  engage  his  time.  The  business 
of  superintending  the  public  printing  of  the  State  would  be  under  the  control  and 
direction  of  the  Secretary  of  the  Commonwealth,  the  officer  who  has  under  his  con- 
trol the  records  of  the  State,  who  keeps  the  official  acts  of  the  Executive,  whO'  knows 
everji^hing  the  Legislature  does,  and  has  in  his  office  a  record  of  practically  all  of  its 
acts. 

It  may  be  said  an  expert  public  printer  is  needed.  He  is  no  more  needed  than 
an  expert  public  architect  is  needed;  and  even  if  he  is  needed,  the  way  to  meet  that 
difficulty  would  be  to  enable  the  Secretary  of  the  Commonwealth  to  make  a  contract 
and  submit  it  to  an  expert  printer  and  see  whether  the  printer  taking  the  contract  has 
properly  performed  his  duties.  It  would  be  a  matter  of  a  few  minutes,  a  few  hours, 
or,  at  most,  a  few  days. 

As  it  is  now  constituted,  the  office  of  public  printer  is  no  protection  to  the  State 
of  Virginia.  On  the  contrary,  it  seems  to  be  the  reverse  of  a  protection  to  the  State. 
In  the  hands  of  the  Secretary  of  the  Commonwealth,  an  official  whose  importance  will 
be  second  only  to  that  of  the  Governor,  and  possibly  the  Auditor  of  Public  Accounts, 
these  matters  can  be  ever  looked  into,  ever  supervised  and  controlled  with  intelli- 
gence, authority  and  discretion. 

We  will  recall  that  during  the  original  discussion  of  quadrennial  sessions  in  this 
body  last  September,  when  sitting  in  Committee  of  the  Whole,  the  question  of  the  cost 
of  printing  the  acts  of  the  General  Assembly,  and  the  bills,  resolutions,  etc.,  introduced 
there,  as  compared  with  the  years  when  there  was  no  General  Assembly,  came  into 
controversy  and  was  settled  by  a  reference  to  the  books  or  reports  of  the  Auditor, 
and  by  a  letter  from  the  public  printer.  According  to  tliat  letter,  which  I  hold  here, 
it  seems  that  when  the  General  Assembly  is  in  session  and  the  people  of  the  State 
have  the  greatest  amount  of  public  printing  to  be  done,  by  a  combination  of  printers 
in  the  city  of  Richmond  the  State  is  mulcted  in  far  more  charges  for  a  greater  amount 
of  printing  than  in  the  years  when  there  is  comparatively  little  printing  to  do.  That 
letter  is  dated  September  24,  1901,  and  is  addressed  to  the  gentleman  from  Brunswick 
(Mr.  Turnbull).  It  contains  an  explanation  of  the  large  cost  of  printing  for  the  year 
1900,  which  embraces  a  great  part  of  the  printing  of  the  acts  of  the  General  Assembly 
of  1S99-1900.    The  letter  reads: 

In  reply  to  your  favor  of  the  24th  instant,  I  beg  leave  to  say  that  the  cost  of  printing 
and  binding  the  annual  reports  was  not  included  in  the  statement  furnished  Mr.  Boaz. 
During  the  fiscal  year  ending  September  30,  1899  

Wtien  the  General  Assembly  was  not  in  session,  which  is  my  own  addition — 

There  was  no  session  of  the  General  Assembly,  and  owing  to  great  competition  for 
the  public  work  between  the  printers  and  binders,  the  prices  bid  were  lower  than  during 
any  year  since  the  war. 


1884 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


So  that  the  public  printer  seems  not  to  have  the  power  and  autliority  to  prevent 
a  combination  among  the  printers  of  the  city  of  Richmond,  during  the  year  when  the 
den' and  for  public  documents  is  enormously  increased,  whereby  the  prices  of  printing 
greatly  increased  and  enhanced,  and  thereby  the  State  is  practically  mulcted  by  reason 
or  the  incj-eased  charges  and  cost  of  printing. 

So,  Mr.  President,  I  believe  we  should  vest  the  duties  of  public  printer,  such  as 
are  now  or  may  be  hereafter  constituted  by  law,  in  the  office  of  the  Secretary  of  the 
Commonwealth,  whose  salary  and  duties  and  responsibilities  will  be  such  as  to  enable 
him  tO'  be  ever  present  in  the  City  of  Richmond,  and,  with  full  charges  and  supervision 
and  control  over  the  public  printing,  to  prevent  any  combination  whereby  the  State's 
cost  and  expenses  for  having  its  public  documents  printed  may  be  greatly  and  unjustly 
enhanced. 

In  addition  to  that,  the  Secretary  of  the  Commonwealtb,  with  the  proper  control 
and  supervision  over  the  public  printing  of  the  State,  may  let  out  contracts  in  other 
cities  of  the  State  than  the  city  of  Richmond.  Ttie  Convention,  in  printing  the  memo- 
rial in  honor  of  the  deceased  President,  William  McKinley,  has  had  a  striking  illustra- 
tion of  the  advantage  of  putting  in  competition  with  the  printers  of  Richmond  the 
printers  of  another  city,  to^wit,  Lynchburg,  and  the  saving  that  was  incurred  thereby. 

Mr.  Meredith:  How  would  you  have  the  journal  and  things  of  that  kind  printed? 
For  that  kind  of  work  you  are  necessarily  thrown  upon  the  printers  of  the  city  of  Rich- 
mond, and  they  could  take  advantage  of  it,  but  I  do  not  see  how  the  Secretary  of  the 
Commonwealth  could  prevent  that  any  more  than  the  public  printer  could. 

Mr.  "Withers:  He  could  not,  except  and  only  by  reason  of  the  fact  that  he  could  let 
that  printing  to  nearby  cities,  such  as  the  cities  of  Petersburg,  Fredericksburg,  Ashland, 
or  places  of  that  kind,  to  meet  that  particular  emergency;  but  in  getting  out  the  annual 
reports  of  the  various  officers  and  bureaus  of  the  government  he  would  have  a  free 
hand  to  meet  any  such  possibility  of  combination. 

An  expert  printer  is  not  required  in  the  office  of  public  printer.  There  is  no  need 
for  him.  There  is  not  even  the  necessity  of  reading  the  proof-sheets.  Expert  printers 
cannot  be  gotten  without  high  compensation,  and  the  office  of  public  printer  is  deemed 
so  unimportant  and  so  little  that  the  compensation  attached  thereto'  is  necessarily  small; 
but  if  we  submit  it  to  the  supervision  of  the  Secretary  of  the  Commonwealth,  where 
it  properly  belongs  he  can  let  the  contract  and  have  the  widest  possible  control  and 
supervision.  Whenever  it  is  necessary  he  can  submit  to  a  trained,  expert  and  dis- 
interested printer  a  contract  made  for  printing,  and  then  say  whether  or  not  it  comes 
up  to  the  specification  and  the  bids. 

I  submit  we  do  well,  without  considering  in  this  or  any  other  instance  the  ques- 
tion of  economy,  when  we  do  away  with  any  office  that  has  so  little  duties  to  perform 
that,  except  during  the  sessions  of  the  Legislature  or  a  deliberative  body  like  this, 
there  is  practically  nothing  to  do  except  to  print  mere  repetitions  of  the  reports  from 
year  to  year,  and  that  the  Secretary  of  the  Commonwealth  ought  to  be  endowed  with 
all  duties  that  pertain  to  the  control  of  the  State  records  and  the  printing  thereof,  and 
be  allowed  the  fullest  margin,  as  doubtless  the  Legislature  in  its  wisdom  will  see  fit 
to  provide,  to  meet  any  possibility  of  a  combination  whereby,  when  the  greatest  amount 
of  printing  is  to^  be  done,  the  highest  prices,  are  asked. 

Mr.  Fairfax:  Mr.  President,  I  wish  to  withdraw  the  substitute  I  offered  for  the 
amendment  of  the  gentleman  from  Wise  (Mr.  Ayers). 

Mr.  Watson:  I  have  but  little  information  on  this  subject.  I  can  see  that  the 
proposition  of  the  gentleman  may  result  in  financial  economy.  If  that  be  true,  I  should 
like  to  have  from  the  gentleman,  who  seems  to  have  investigated  this  matter,  a  state- 
ment of  what  economy  there  is  in  the  change  he  suggests. 

Mr.  Withers:  The  gentleman  can  take  the  reports  of  the  public  printer  and  the  letter 
of  the  public  printer,  which  are  my  sole  sources  of  information,  and  compare  the  prices 
of  printing  the  same  things  the  year  the  Legislature  was  in  session  and  the  year  it 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


1885 


was  not  in  session,  and  see  that  the  increased  competition  of  the  year  1899,  when  there 
was  no  session  of  the  General  Assembly,  decreased  enormously  ihe  price  of  printing 
over  that  of  the  year  1900.  That  is  a  mere  matter  of  information  from  the  report  and 
from  this  letter.  I  wish  to  have  it  understood  that  I  do  not  attack  the  public  printer. 
I  simply  state  the  facts  as  furnished  by  him  and  let  the  Convention  pass  upon  whether 
the  law  is  a  w^ise  one  or  whether  it  is  wisely  administered. 

Mr.  Meredith:  Mr.  President,  I  do  not  know  whether  the  gentleman  proposed  to 
characterize  it  as  an  attack,  but  surely  the  deductions  to  be  drawn  from  the  remarks 
that  have  been  made  by  him,  and  the  alleged  facts  he  has  cited,  would  be  a  very  severe 
indictment  against  anybody  who  purported  to  be  honest. 

Mr.  Withers:  I  do  not  know  whether  it  is  the  fault  of  the  public  printer  or  the 
fault  of  the  law,  but  there  is  some  fault,  if  the  gentleman  will  permit  me,  when  the 
cost  of  printing  during  the  legislative  year  are  enormously  greater  than  during  the 
year  when  the  Legislature  does  not  meet,  for  the  same  kind  of  work. 

Mr.  Meredith:  Here  is  the  statute  in  regard  to  the  public  printer:  '"He  shall  let 
out  to  the  lowest  responsible  bidder,  experience  and  facilities  possessed  at'  the  time 
being  considered" — necessarily  so  in  printing — "a  bid  which  shall  be  determined,  in 
case  of  an  appeal  during  the  sessions  of  the  General  Assembly,  by  the  Committee  on 
Public  Printing,  and  during  vacation  by  the  Governor  and  Secretary  of  the  Common- 
wealth." 

There  is  an  opportunity  to  bid.  There  is  an  opportunity  to  take  an  appeal.  It 
does  seem  to  me  there  is  no  fault  in  the  law,  and  there  must  be  a  fault  in  some 
Individual.  It  may  very  well  happen  that  during  the  years  when  the  Legislature  is 
not  in  session  there  may  be  this  bidding  and  competition  from  other  cities,  because 
from  the  nature  of  books  which  you  can  take  plenty  of  time  to  print  you  can  very  well 
have  competition  from  other  cities;  but  when  you  have  a  matter  that  is  to  be  put  upon  your 
desk  the  next  morning,  matter  required  in  a  day  or  two.  hurried  printing  of  that  kind, 
it  does  look  to  me  as  if  it  is  immaterial  whether  you  put  it  into  the  hands  of  the 
Secretary  of  the  Commonwealth  or  in  the  hands  of  the  Governor  or  public  printer,  you 
are  not  going  to  have  that  competition  of  v,'hich  the  gentleman  from  Danville  would 
like  to  have  Danville  have  the  benefit.  It  is  just  impossible  to  get  it,  because  you  can- 
not furnish  the  printing  with  the  speed  necessary  to  accommodate  the  members  of  the 
two  branches  of  the  General  Assembly. 

Mr.  Green:  If  the  Secretary  of  the  Commonwealth  can  perform  these  duties,  and 
as  to  that  I  am  not  ready  to  express  an  opinion,  would  not  that  save  the  cost  of  the 
public  printer  by  putting  the  work  upon  the  Secretary  of  the  Commonwealth? 

Mr.  Meredith:  I  will  come  to  that  in  a  moment.  If  there  was  ever  a  pro]X)secl 
political  junk-shop,  I  submit  this  section,  as  proposed  by  the  gentleman  from  Danville 
(Mr.  Withers),  will  make  one  of  the  office  of  Secretary  of  the  Commonwealth.  The 
Secretary  of  the  Commonwealth  is  to  watch  the  police  on  the  square.  He  is  to  see  that 
the  dogs  do  not  kill  the  squirrels.  Those  are  to  be  some  of  his  duties.  He  is  to  see 
that  the  buildings  are  properly  taken  care  of;  and  if  the  roofs  leak  he  is  to  see  that 
they  are  mended.  He  is  to  see  that  the  coal  supply  is  all  right.  These  duties  are  to 
be  performed  by  a  high  and  distinguished  dignitary,  as  described  by  the  gentleman 
from  Danville.  In  addition  to  that  he  is  to  be  the  ptiblic  printer.  A  man  cannot  fill 
this  office,  by  law,  unless  he  is  a  practical  printer.  How  can  he  read  proof;  how  can 
he  measure  proof;  how  can  he  tell  one  class  of  type  from  another,  unless  he  is  a 
practical  printer?  How  coula  draw  proper  contracts?  Our  public  printer  was  called 
down  to  North  Carolina  within  the  last  few  months  to  testify  in  regard  to  a  large 
claim  against  the  State  of  North  Carolina  because  they  did  not  have  a  public  printer  in 
North  Carolina  to  superintend  work  of  that  kind. 

I  do  not  care  anything  about  the  office  of  public  printer.  It  is  immaterial  to  me 
whether  tne  officer  comes  from  the  city  of  Richmond  or  elsewhere;  but  the  gentleman 
talks  about  the  Secretary  of  the  Commonwealth  being  a  high  dignitarj^  and  yet,  at 
the  same  time,  you  put  upon  him  a  character  of  work  that  is  far  from  being  exalted.  It 


1886 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


requires  simply  expert  experiences  in  matters  of  labor.  It  seems  to  m©  a  contradiction 
of  terms,  and  I  respectfully  submit  to  you  if  you  undertake  to  take  this  work  out  of  the 
hands  of  a  practical  printer,  you  will  probably  lose  more  than  you  will  gain  by  it. 

I  respectfully  submit  you  will  not  save  anything  by  the  proposed  arrangement. 
It  is  necessary  to  have  somebody  to  perform  that  duty  and  to  see  that  proper  work  is 
done,  and  correctly  paid  for.  You  are  transferring  various  duties  to  the  Secretary  of 
the  Commonwealth,  and  making  a  kind  of  hotch-potch  of  the  office.  I  had  an  idea  that 
if  there  was  any  office  that  ought  to  be  abolished,  it  was  that  of  the  Secretary  of  the 
Commonwealth,  from  the  description  given  of  its  duties  by  the  gentleman  from  Dan- 
ville. He  sai-d  the  Secretary  of  the  Commonwealth  had  nothing  tO'  dO'  except  keep  some 
books  and  preserve  some  records;  but  instead  of  abolishing  the  office  of  Secretary  of 
the  Commonwealth  and  turning  the  custody  of  these  records  over  to,  say,  the  Second 
Auditor,  and  allowing  these  other  officers  to  perform  the  duties  that  require  experience 
and  expert  knowledge,  it  is  proposed  to  take  from  them  these  duties  which  they  can 
properly  perform  and  put  them  in  the  hands  of  an  officer  who  does  not  know  anything 
about  them. 

I  respectfully  submit  that  neither  the  duties  of  the  Register  of  the  Land  Office 
nor  of  the  public  printer  ought  to  be  put  in  the  hands  of  the  Secretary  of  the  Common- 
wealth, because  their  duties  do  not  apply  to  his  office  at  all.  They  have  no  relation 
to  each  other,  or  to  the  duties  of  the  Secretary  of  the  Commonwealth. 

Mr.  Turnbull:  Mr.  President,  I  desire  tO'  make  a  statement  in  reference  to  this 
matter,  but  I  want  it  understood  that  I  know  the  public  printer  very  slightly.  I  have 
seen  him,  I  think,  but  once,  when  I  went  down  there  to  investigate  the  cost  of  printing 
for  the  General  Assembly.  When  I  stated  in  Committee  of  the  Whole  that  the  cost  of 
public  printing  for  the  General  Assembly,  and  the  printing  incident  to  it,  was  $24,000 
and  some  dollars,  the  gentleman  from  Albemarle  rose  in  his  seat  and  said  he  had  a 
letter  from  the  Superintendent  of  Public  Printing  saying  it  was  only  $16,000,  showing 
a  discrepancy  of  $8,000.  I  was  reading  from  a  report  of  the  public  printer  and  he  was 
reading  from  a  letter  which  he  had  received  from  the  public  printer  on  the  same  sub- 
ject. I  tried  my  best  to  reconcile  this  discrepancy,  and  so  did  the  gentleman  from 
Albemarle  (Mr.  Boaz),  but  we  could  not  do  it.  So  we  called  on  the  public  printer,, 
and  if  the  gentleman  from  Albemarle  was  able  to  understand  hisi  reconciliation  of  it,. 
I  could  not. 

When  I  wrote  to  him  to  explain  how  this  discrepancy  occurred,  and  why  the  cost 
one  year  was  one  amount  and  another  year  another  amount,  he  wrote  me  a  letter  and 
said  it  was  because  of  competition.  When  we  went  down  there  to!  talk  about  it  he  said 
the  cost  of  the  pu^-iic  printing  during  the  year  when  it  was  $37,000  was  exactly  double 
as  much  as  it  was  during  the  year  before,  on  account  of  competition.  Then  the  thing 
that  occurred  to-  my  mind  w^as  this:  Of  what  account  to  the  State  of  Virginia  is  a 
public  printer,  in  determining  whether  work  is  properly  done  and  whether  a  proper 
amount  is  done  or  not,  if  he  is  going  to  allow  the  printing  to  be  double  as  much  at 
one  time  as  it  is  at  another  time,  without  reporting  the  fact  to  the  General  Assembly 
or  the  proper  authorities,  to  enable  them  to  take  some  action  in  regard  tO'  the  matter. ' 

That  is  all  I  have  tO'  say  on  the  subject.  I  simply  wanted  to  state  what  I  know 
about  it  and  how  I  came  to  investigate  the  matter.  As  I  understood,  a  skilled  man 
is  required  to  attend  to  the  work.  If  he  exercises  his  skill  in  such  a  way  as  to  have 
the  public  printing  cost  double  as  much  at  one  time  as  it  does  at  another  I  think  we 
had  better  get  a  man  who  does  not  know  anything  about  it  at  all. 

Mr.  Ayers:  Mr.  President,  I  call  the  gentleman's  attention  to  the  fact  that  the 
public  printer  had  no^  discretion.  He  simply  lets  the  public  printing  to  the  lowest 
responsible  bidder,  and  when  the  lowest  responsible  bidder  is  a  man  who  can  do  the 
work  and  give  bond  he  is  compelled  to  accept  that  bid.  He  cannot  prevent  a  combina- 
tion of  printers.    If  there  is  a  fault,  it  is  the  fault  of  the  law. 

Mr.  Turnbull:  I  will  ask  the  gentleman  from  Wise,  further,  if  he  were  Super- 
intendent of  Public  Printing,  and  a  skilled  printer,  and  knew  that  the  printers,  by  a 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA. 


1887 


combination,  were  charging  double  as  much  as  they  ought  to  charge,  he  would  not 
report  the  fact  to  somebody? 

Mr.  Ayers:  I  certainly  would  call  it  to  the  attention  of  somebody;  and  the  public 
printer  did  call  it  to  their  attention  when  his  next  report  came  in,  showing  the  increased 
expense. 

Mr.  Turnbull:    Here  is  his  report  and  there  is  nothing  of  that  sort  in  it 

Mr.  Cameron:  Mr.  President,  the  committee  found  some  difficulty  in  dealing  with 
this  and  kindred  subjects.  The  public  printer  is  not  a  constitutional  officer.  The 
abolition  by  a  constitutional  term  of  an  office  that  is  not  a  constitutional  office  does 
not  accomplish  the  object  desired.  The  only  mode  of  procedure  in  such  a  case  would 
be  to  assign  the  duties  to  some  other  officer. 

We  thought  it  incumbent  upon  us,  on  account  of  some  resolutions  this  body  had 
referred  to  us,  to  inquire  somewhat  into  the  question  of  public  printing.  We  did  not 
feel  called  on  to  express  an  opinion  as  to  the  merits,  ability  or  honesty  of  the 
incumbent.  We  did  not  believe,  and  we  do  not  believe,  it  is  constitutional  work  to 
tr^^  and  rectify  the  incompetency  of  a  public  officer,  if  there  be  incompetency.  We 
think  it  is  shooting  a  gun  entirely  too  large  at  game  entirely  too  small. 

The  opinion  of  the  committee  was  that  perhaps,  under  the  present  arrangement, 
the  interests  of  the  State  were  not  properh^  protected.  Certainly  that  was  my  own 
individual  conclusion;  but  when  we  began  to  seek  a  remedy,  as  I  said,  the  only  prac- 
tical wsLY  was  the  assignment  of  those  duties  somewhere  else,  and  we  could  not  find 
any  public  official  in  the  city  of  Richmond  to  whom  we  believed  those  duties  could  be 
properly  and  wisely  assigned.  The  committee  did  not  believe  the  Secretary  of  the 
Commonwealth  could  discharge  these  duties  either  with  any  economy  or  with  any 
increased  efficiency.  We  believe  the  duties  of  the  office  of  Secretary  of  the  Common- 
wealth, as  it  is  to  be  constituted  under  this  new  instrument,  will  be  as  much  as  he 
can  attend  to,  together  with  the  duties  of  the  Register  of  the  Land  Office. 

As  to  that,  I  shall  say  nothing  more  than  I  said  before  the  Committee  of  the  Whole. 
We  are  content  to  have  the  judgment  of  the  Convention  on  the  arguments  that  have 
been  made;  but  as.  to  the  matter  of  the  public  printer  I  believe  it  should  be  left  to  legis- 
lative correction.  I  do  not  believe  the  Constitution  should  take  any  cognizance  what- 
ever of  the  matter,  and  I  hope  the  amendment  to  that  effect  will  be  voted  down. 

Mr.  Withers:  Mr.  President,  I  wish  to  apologize  to  the  chairman  of  the  committee 
for  speaking  further  at  this  time.  I  did  not  desire  to  wait  until  he  had  spoken,  but 
I  ^-Ish  the  gentleman  from  Richmoud  (Mr.  Mereaith)  to  know  that  I  do  not  desire  to  be 
put  in  the  position  of  personal  antagonism  to  the  Public  printer.  I  do  not  know  that 
I  ever  saw  him  but  twice  in  my  life.  I  have  no  criticism  to  make  of  him.  I  only 
attempted  to  state  the  facts  in  my  possession.  I  will  ask  the  gentleman  from  Rich- 
mond whether,  as  a  matter  of  fact,  the  case  he  refers  to,  in  which  the  public  printer 
was  called  to  Raleigh,  was  not  brought  by  the  printers  against  the  State  of  North 
Carolina  and  lost,  and  whether  the  public  printer  was  not  for  the  suer  and  not  for  the 
sued. 

Mr.  Meredith:    I  do  not  know  enough  about  it  to  answer. 

The  President:  The  question  is  on  the  amendment  of  the  gentleman  from  Dan- 
ville (Mr.  Withers). 

The  ayes,  and  noes  were  ordered,  and  being  taken,  resulted— ayes,  35;  noes  30. 
The  amendment  was  agreed  to. 

On  motion  of  Mr.  Turnbull  the  Convention  adjourned  until  Monday,  Januarj^  20, 
1902,  at  12  o'clock  M. 


1888 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


MONDAY,  January  20,  1902. 

The  Convention  met  a,t  12  o'clock  M. 

Prayer  by  Rev.  George  Cooper,  D.  D.,  of  Richmond. 

Mr.  Earman:  Mr.  President,  I  offer  the  following  resolution,  which  I  ask  be  read 
and  lie  on  the  table: 

Resolved,  That  the  General  Assembly  shall  make  no  appropriation  for  teaching 
theology,  law,  medicine,  dentistry  or  pharmacy. 

THE  JUDICIARY  DEPARTMENT. 

Mr.  Withers:    I  offer  the  following  resolutions: 

Resolved,  That  Section  5,  Article  6,  of  the  Constitution,  as  contained  in  the  report  of 
the  Committee  on  the  Judiciary  Department,  adopted  on  the  8th  day  of  January,  1902, 
be,  and  the  same  is  hereby,  rescinded. 

Resolved,  That  the  judges  of  the  Supreme  Court  of  Appeals  shall  be  chosen  by  the 
qualified  voters  of  the  State,  and  shall,  after  the  first  election  hereunder,  hold  their 
office  for  a  term  of  twelve  years,  unless  sooner  removed  in  the  manner  prescribed  by  this 
Constitution.  They  shall,  when  chosen,  have  held  a  judicial  station  in  the  United  States, 
or  shall  have  practiced  law  in  this  or  some  other  State,  for  five  years.  At  the  first 
election  of  said  judges  under  this  Constitution  one  of  said  judges  shall  be  elected  for  a 
term  of  four  years,  two  for  a  term  of  eight  years,  and  two  for  a  term  of  twelve  years. 

Mr.  Hamilton:  Mr.  President,  in  the  absence  of  my  colleague  (Mr.  Cameron), 
the  chairman  of  the  Committee  on  the  Executive  Department,  I  move  that  the  con- 
sideration of  the  report  of  that  committee  be  passed  by.  I  think  he  understood  that 
would  be  done.  He  is  absent  to-day  addressing  a  Confederate  camp  and  did  not  think 
the  report  would  be  taken  up  again  this  morning. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Brooke  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  consideration  of  the  report  of  the  Committee  on  the  Organization  and 
Government  of  Cities  and  towns,  Mr.  Withers  in  the  chair. 

Mr.  Brooke:  Mr.  Chairman,  I  shall  detain  the  Committee  of  the  Whole,  I  hope, 
but  a  short  time  in  presenting  the  report  of  the  committee. 

I  confess,  Mr.  Chairman,  for  the  committee,  and  for  myself  as  chairman  of  the 
committee,  we  feel  such  an  interest  in  this  report,  and  such  a  strong  hope  that  its 
provisions  will  address  themselves  to  the  sound  judgment  of  the  Convention,  that  at 
the  committee's  request  I  shall  crave  the  indulgence  of  the  Committee  of  the  Whole, 
while  I  as  briefly  as  possible  give  some  at  least,  of  the  considerations  which  have  led 
us  tO'  the  conclusion  at  which  we  have  arrived,  and  some  specific  explanation  of  the 
provisions  of  the  report. 

The  problems  of  municipal  government  are  neither  new  nor  few,  nor  of  easy  solu- 
tion, and  it  is  not  even  the  hope  of  the  committee  that  all  the  difficulties  inherent  in  the 
•subject  can  be  successfully  met  and  solved  by  constitutional  enactment.  In  this,  as  in 
all  forms  of  popular  government,  so  much  depends  upon  the  condition  of  public  senti- 
ment itself,  upon  the  strength  of  the  intention  of  the  people  of  a  community  to  have  an 
honest  government  economically  administered,  upon  the  personnel  of  the  different 
departments  of  a  city  government,  that  in  considering  the  question  v/e  are  almost  led 
to  agree  that — 

For  forms  of  government  let  fools  contest; 
What'er  is  best  administer'd  is  best, 

and  to  feel  that  the  best  that  we  can  do  is  to  place  in  the  hands  of  the  people  them- 
selves the  instrumentalities  by  which  they  may  work  out  for  themselves  a  good  govern- 
ment, if  they  are  sufficiently  moral  and  public-spirited  to  desire  it. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


1889 


T^he  problems  of  municipal  government  have  recei-^  ed  of  late  years  the  considera- 
tion of  political  scientists  of  great  experience  and  ability,  seeking  to  find,  if  they  could, 
just  ^here  the  difficulty  lay  in  the  acknowledged  fact  that  municipial  government  in  the 
United  States,  as  at  present  organized  is  admittedly  a  failure  in  comparison  with  the 
governments  of  the  cities  of  Europe,  and  possibly  other  countries.  We  have  had,  as  a 
committee,  the  benefit  of  a  good  deal  of  literature  on  the  subject.  YVe  have  had  also 
the  benefit  of  personal  interviews  and  conferences  with  some  of  the  representatives  of 
those  bodies  that  have  given  this  subject  great  consideration.  They  have  sought  to 
find,  if  they  could,  some  false  priciple  imbedded  in  the  framework  of  municipal  govern- 
ment, the  removal  of  which  would  remove  all  the  difficulties  which  inhere  in  the 
subject,  and  enable  all  cities,  at  all  times,  to  have  a  perfect  government. 

We  have  not  been  misled  into  believing  that  is  possible.  We  believe  that  in  some 
cities  there  will  sometimes  be  good  government  and  sometimes  bad  government.  In 
other  cities  the  same  condition  of  affairs  will  exist.  In  accordance  with  the  state  of 
public  sentiment.  The  gentlemen  who  have  studied  this  subject  have  found,  or  claim 
to  have  found,  the  difficulty  in  the  fact  that  in  constituting  city  governments  the  bodies 
instituting  them  have  not  recognized  sufficiently  the  dual  character  of  the  city  govern- 
ment, being  on  the  one  hand  the  mere  administrative  agency  of  the  State  for  carrying 
out  within  the  territorial  limits  of  the  city  the  general  policies  of  the  State,  and  being, 
on  the  other  hand,  a  local  government,  clothed  with  the  power  of  home  rule,  and  with 
the  power  of  administering  government  for  their  own  inhabitants  where  they  are  dis- 
tinctively interested,  and  the  questions  are  not  related  to  the  welfare  of  the  State  at 
large. 

Others  have  held  that  the  great  difficulty  rests  in  the  failure  of  the  bodies  organiz- 
ing city  governments  to  bestow  upon  them  with  uniformity  sufficiently  large  grants  of 
the  powers  of  local  self-government.  One  writer,  I  recall,  points  this  difference  by 
saying  that  the  city  of  New  York,  for  instance,  is  ruled  by  the  Legislature  and  the 
city  of  Glasgow  is  ruled  by  the  people  of  Glasgow. 

I  think  I  may  say  for  the  committee,  Mr.  Chairman,  that  while  we  have  given 
those  theories  our  consideration  we  have  not  been  led  into  much  theoretical  dealing 
with  the  question,  and  we  have  come  to  a  conclusion,  largely  basing  our  action  upon 
this  idea:  That  much,  at  least,  if  not  the  greater  part,  of  the  inefficiency  of  city  govern- 
ments in  the  United  States  is  due  to  the  fact,  in  part,  that  as  generally  organized  there 
is  no  responsible  official  head  of  city  government,  having  such  powers  as  would  justify 
the  people  to  hold  him  to  a  direct  responsibility  for  the  matter  in  which  the  govern- 
ment is  Administered,  and  that  the  legislative  department  of  the  city  governments 
generally  so  constituted  as  that  there  is  no  just  and  proper  limitation  upon  their 
recklessness,  or  upon  the  ill-considered  character  of  their  legislation. 

We  have  felt,  therefore,  that  if  we  could  draft  an  article  which  would  increase 
the  power  and  the  direct  responsibility  to  the  people  of  the  community  of 
the  executive  head  of  the  city  government;  if  we  could  throw  around  the 
constitution  of  the  legislative  department  of  the  city  government  such  guards  and 
safeguards  as  might  result,  and  probably  would  result,  in  the  selection  of  a  m^ore  con- 
servative element  to  constitute  that  body;  and  if  we  could,  in  addition  to  that,  secure 
the  grant  by  uniform  laws  to  all  cities  alike  of  the  largest  powers  of  self-government 
which  are  consistent  with  the  safety  of  the  State,  we  would,  if  not  have  over-come  all 
of  the  difficulties,  at  least  have  paved  the  way  for  the  people  in  these  incorporated 
communities  to  work  out  for  themselves  a  safe,  satisfactory  and  conservative  city 
government.  I  think,  Mr.  Chairman,  a  consideration  of  the  different  provisions  of  this 
article  will  develop  the  fact  that  all  the  provisions  of  it  are  related  more  or  less  directly 
to  these  lines  of  general  thought. 

With  that  general  presentation  of  the  general  considerations  which  have  controlled 
us,  with  the  consent  of  the  committee  I  will  take  up  and  briefly  explain  the  different 
provisions  of  the  article  itself. 

The  first  section,  gentlemen,  consists  of  a  definition: 


1S90 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


All  incorporated  communities,  having  within  defined  boundaries  a  population  of  five 
thousand  or  more,  shall  be  known  as  cities;  and  all  incorporated  communities,  having 
within  defined  boundaries  a  population  of  less  than  five  thousand,  shall  be  known  as  towns. 

Then  the  determination  as  to  the  population  is  to  be  according  to  the  last  preceding 
Federal  census,  or  such  other  enumeration  as  may  be  made  by  the  authority  of  the 
General  Assembly. 

This  definition  is  practically  the  same  as  that  found  in  our  general  laws  in  the 
Code  of  Virginia.  The  Constitution  under  which  we  live,  in  the  article  relating  to  the 
government  of  cities  and  towns,  simply  provides  that  all  cities  having  five  thousand 
inhabitants  shall  have  a  certain  government.  The  Legislature  which  met  very  shortly 
after  the  adoption  of  that  Constitution  defined  cities  as  incorporated  communities 
having  five  thousand  inhabitants  and  having  a  hustings  court. 

I  shall  not  waste  any  time  in  undertaking  to  justify  the  advisability  in  dealing 
with  a  subject  of  this  sort,  if  for  mere  convenience,  if  for  no  other  purpose,  we  have 
a  definition  almost  a  matter  of  nomenclature.  A  difficulty  did  arise,  however,  in  the 
drafting  of  this  provision,  in  connection  with  the  judiciary  report.  As  was  developed 
in  the  discussion  of  -  the  judiciary  report,  there  are  a  number  of  cities  incorporated  in 
the  State  of  Virginia  having  less  than  five  thousand  inhabitants,  which  have  city  govern- 
ments and  corporation  and  hustings  courts.  How  they  got  them  under  the  Constitution 
which  was  then  in  force  I  do  not  know.  It  was  the  policy  of  the  Judiciary  Comtiiittee, 
which  has  been  approved  by  the  Convention  both  in  Committee  of  the  Whole  and  in 
Convention  itself,  to  allow  all  such  communities,  having  less  than  ten  thousand  popula- 
tion and  having  these  courts,  to  retain  them  upon  certain  conditions.  That  result, 
however,  in  the  article  which  has  been  accepted  by  the  Convention  coming  through 
the  Judiciary  Committee,  is  brought  about  by  a  provision  for  the  abolition  of  these 
courts  by  communities  of  this.  size. 

The  provision;  stating  from  memory,  is  that  cities  of  under  ten  thousand  inhabi- 
tants— cities  of  the  second  class — may,  by  a  process  of  election,  abolish  their  hustings 
or  their  corporation  courtsi.  Now,  it  occurred  to  us  at  once  that  if  we  gave  a  definition 
of  "cities"  which  should  embrace  only  incorporated  communities  having  more  than  five 
thousand  inhabitants,  if  we  read  the  judiciary  report  or  the  report  in  connection  with 
the  general  definition,  the  judiciary  article  saying  simply  "cities  of  under  ten  thousand 
inhabitants,"  and  our  definition  being  that  nothing  was  a  city  that  had  under  five 
thousand  inhabitants,  the  word  "city,"  as  used  in  the  judiciary  report,  would  refer  only 
to  those  incorporated  communities  which  had  between  five  thousand  and  ten  thousand 
inhabitants,  and  these  incorporated  communities  having  under  five  thousand  inhabi- 
tants wou^..  not,  under  the  judiciary  report,  have  the  right  to  retain  their  hustings 
courts  even  under  the  conditions  accepted  by  the  Convention. 

We,  therefore,  added  to  our  definition  the  proviso  "that  nothing  contained  in  this 
section  shall  be  held  to  repeal  the  charters  of  any  incorporated  community  of  less 
that  five  thousand  inhabitants  having  a  city  charter  at  the  time  of  the  adoption  of 
this  Constitution."  We  thougnc  then  we  had  met  the  difficulty,  but  the  peculiar  form — 
it  is  satisfactory,  I  do  not  mean  to  criticise — ^in  which  the  thirteenth  article  of  the 
report  of  the  Judiciary  Committee  is  drawn,  left  us  face  to  face  with  another  difiiculty. 
We  desired  in  our  report  to  bear  out  the  intention  of  the  Convention  in  its  adoption 
of  the  thirteenth  section  of  the  judiciary  report.  That  article,  as  I  have  said,  was 
drawn  in  such  a  form  as  provided  for  the  abolition  of  these  courts,  and  not  for  their 
continuance.  If  we  simply  stated  in  our  proviso  that  nothing  in  our  definition  should 
be  held  to  repeal  their  charters,  that  would  secure  to  them  the  continuance  of  their 
hustings  court,  but  there  would  be  an  omission  of  any  provision  by  which,  if  the  time 
ever  came  when  they  desired  to  get  rid  of  them  they  could  get  rid  of  them,  because 
the  right  to  abolish  the  hustings  courts  of  these  small  communities  was  provided  in 
the  judiciary  report  in  language  which  said  that  all  cities  of  less  than  ten  thousand 
inhabitants  should  have  that  right.  If  our  definition  prevailed  there  are  no  cities  of 
less  than  five  thousand  population,  and,  therefore,  the  incorporated  communities  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


1891 


less  than  five  thousand  inhabitants  would  not  have  the  right  to  abolish  these  courts  if 
they  desired  to  do  so,  in  accordance  with  the  provision  of  the  judiciary  report. 

Therefore,  when  v/e  come  to  take  up  this  provision  for  passage  I  think  I  am 
justified  in  saying  the  committee  will  accept  or  will  make  an  amendment,  adding  these 
words  to  the  thirteenth  line:  "Nor  to  prevent  the  abolition  by  such  incorporated  com- 
munities of  the  corporation  or  hustings  courts  provided  in  the  manner  prescribed  in 
Article  VI  of  the  Constitution." 

I  am  sorry  to  have  taken  so  long  to  explain  that  one  particular  clause,  but  it  was 
a  little  bit  involved  in  the  way  in  which  it  presented  itself.  I  think  it  is  now  clear 
that  the  definition  adopted  by  us  does  not  affect  the  continuance,  in  communities  hav- 
ing less  than  five  thousand  people,  of  their  hustings  courts,  if  they  want  them,  nor 
prevent  their  abolishing  them  if  they  choose  to  do  so. 

The  second  section,  gentlemen,  provides  for  uniform  lav/s  for  the  organization  and 
government  of  cities  and  towns: 

General  laws  for  the  organization  and  government  of  cities  and  towns  shall  be  passed 
by  the  General  Assembly  in  the  manner  prescribed  by  this  Constitution,  and  no  special  act 
shall  be  passed  in  relation  thereto,  except  in  cases  where,  in  the  judgment  of  the  General 
Assembly,  the  object  of  the  act  cannot  be  attained  by  general  laws. 

That  language,  down  to  that  point,  I  think,  is  identical  with  the  language  found 
in  the  present  Constitution.  The  committee,  in  considering  this  question,  found  that 
the  constitutional  provision  which  I  have  just  read,  and  which  has  been  a  part  of  the 
organic  law  of  the  State  since  that  Constitution  went  into  effect  in  1871,  had  not  pre- 
vented at  all  the  passage  by  the  Legislature  of  special  acts  relating  to  the  government 
and  organization  of  cities  and  towns.  Presumably  they  were  all  passed  under  the 
general  theory  that  the  object  of  the  act  could  not  be  obtained  by  general  law.  We 
felt  we  could  probably  guard  that,  believing  that  unifomity  in  the  grant  of  municipal 
powers  was  a  desirable  thing,  not  only  in  relation  to  the  character  of  city  govern- 
ments themselves,  but  in  order  to  relieve  the  Legislature  from  the  burden  of  this 
great  mass  of  special  legislation.  Finding  that  this  provision  had  existed  for  forty 
years  without  preventing  the  difficulty,  we  undertook  to  guard  it  by  adding  this  lan- 
guage: "And  then  only  by  a  recorded  vote  of  two-thirds  of  the  members  elected  to 
each  house  of  the  General  Assembly." 

That  clause  is  new.  The  view  of  the  committee  was  that  if  the  language  down 
to  that  point  had  been  ineffective  as  contained  in  the  present  Constitution,  it  might 
possibly  be  ineffective  in  this  Constitution  if  adopted  as  it  stood  and  without  addition, 
but  we  thought  if  we  provided  that  no  special  act  with  regard  to  the  organization  and 
governments  of  cities  and  towns  could  be  passed  without  a  recorded  vote  of  two-thirds 
of  all  the  members  of  the  Legislature,  and  if  we  took  that  provision  in  connection 
with  the  provision  of  the  legislative  report,  which  has  been  adopted,  raising  a  standing 
committee  who  should  always  examine  these  acts  and  report  whether  they  are  local  or 
can  be  attained  by  general  laws  or  not,  we  would  have  put  a  sufficient  guard  against 
the  multiplication  of  special  acts  relating  to  the  government  of  cities  and  towns,  and 
yet  we  would  not  have  absolutely  shut  off  the  Legislature  from  passing  such  an  act 
when  it  was  clearly  to  tne  benefit  of  the  city  which  applied  for  it,  and  not  impingeing 
upon  the  general  welfare. 

We  have  believed,  Mr.  Chairman,  that  the  framework  of  city  government  should 
be  placed  in  the  Constitution  in  the  simplest  and  most  essential  forms.  We,  therefore, 
have  felt  that  it  was  necessan-  to  provide  the  framework  for  a  judiciary  department, 
for  a  legislative  department  and  for  an  executive  department.  The  judiciary  system 
applicable  to  cities,  and  towns  had  already  been  reported  by  the  Judiciarj'  Committee, 
and  has  been  adopted.  We,  therefore,  make  no  recommendation  at  all  in  regard  to 
that,  simply  stating  as  our  third  section  that  the  judiciary  system  for  cities  has  been 
reported  by  the  Committee  on  the  Judiciary. 

Mr.  Meredith:    In  regard  to  the  second  clause  I  should  like  to  ask  v/hether  you 


1892  DEBATES  OF  THE  COi^STITUTIO^^AL  CONVENTION  OF  VIRGINIA. 

regard  that  language  as  sufficiently  broad  to  allow  the  Legislature  to  classify  the  Cities? 
Of  course,  it  would  not  do  to  have  general  laws  for  cities  of  five  thousand  people  apply 
to  cities  of  eighty  thousand.  The  expenses  of  government  would  be  so  great  that  they 
could  not  bear  them.  I  simply  desire  to  call  your  attention  to  that,  and  ask  whether 
you  regard  the  language  as  sufficiently  elastic  to  allow  the  Legislature  to  provide, 
under  general  laws,  for  classification  of  cities,  so  that  they  could  have  municipal  forms 
of  government  suitable  to  their  government? 

Mr.  Brooke:  If  the  gentleman  from  Richmond  (Mr.  Meredith)  will  permit  me 
I  will  answer  that  question,  not  categorically  at  first,  and  then  give  an  answer  categori- 
cally. 

To  deal  frankly  with  the  gentleman  and  with  the  committee  I  wish  to  say  that  the 
Committee  on  the  Organization  and  Government  of  Cities,  and  Towns  took  up,  with 
great  care,  the  question  of  the  division  of  cities  into  different  classes  according  to 
population.  The  original  draft  of  this  section,  as  submitted  to  the  committee,  had  in 
it  the  language  "uniform  as  to  the  class  to  which  they  relate."  The  question  was  con- 
sidered maturely,  and  the  committee  was  advised  in  regard  to  it  by  the  representatives 
of  the  National  Municipal  League,  which,  I  will  state  to  the  committee,  is  an  organiza- 
tion started  about  six  years  ago  for  the  purpose,  if  possible,  of  taking  up  this  question 
of  municipal  government  and  formulating  some  general  principles  which  would  give 
us  a  Utopian  government  hereafter.  The  president  of  that  body  is  James,  C.  Carter, 
the  distinguished  lawyer  of  New  York.  At  their  request  we  gave  a  hearing  to  their 
representative.  We  took  up  with  him  the  question  of  classification  of  cities.  His 
statement  was — and  we  have  it  in  his  publications — that  as  far  as.  it  had  been  tried  it 
had  resulted  certainly  not  so  well  as  had  been  expected,  but  practically  in  a  failure. 
One  of  the  difficulties  toi  which  he  called  attention  was  that  the  Legislature  might  so 
classify  cities  as  to  embrace  in  each  classi  only  one  city,  and  in  doing  so  thus  absolutely 
destroy  the  fundamental  doctrine  of  uniformity  of  laws  for  the  organization  and  govern- 
ment of  cities;  and  as  a  matter  of  fact,  in  Ohio,  and  I  think  in  Kentucky,  the  Legislature 
coming  on,  after  such  a  provision  as  this  in  the  Constitution,  has  simply  said  that  the 
city  of  so  and  so  shall  be  regarded  as  a  city  of  the  first-class,  the  city  of  so  and  so  be 
regarded  of  the  second-class,  and  so  on;  so  that  when  they  came  to  pass,  in  the  lan- 
guage of  the  Constitution,  uniform  laws  as  to  the  cities  to  which  they  relate  they  were 
absolutely  free-handed  to  pass  all  sorts  of  special  laws  relating  only  to  the  individual 
cities  as  they  came  up. 

My  own  personal  invesiigations  enrried  me  a  little  bit  further.  It  so  happened 
that  at  that  time  it  was  necessary  for  me  to  go  to-  Scranton,  Pa.,  upon  a  matter  of 
business.  While  there  I  wa'fe  brought  into  contact  with  a  good  many  lawyers  and  some 
judges — whether  they  were  lawyers  or  not  is  another  question — and  I  recollected  that 
in  Pennsylvania  this  doctrine  of  the  classification  of  cities  had  been  accepted  in  its 
convention,  and  the  classification  had  been  made  by  the  Legislature.  The  cities  of 
Scranton,  Alleghany  and  Pittsburg  constitute  the  second  or  third-class.  I  have  forgotten 
which,  but  they  are  in  one  class.  I  asked  those  gentlemen  there  how  it  operated.  They 
told  me  in  general  terms  that  it  was  a  failure,  that  so  far  as  Scranton  was  concerned, 
at  least,  Scranton  was  the  smallest  city  of  the  three,  and  that  it  could  practically  not 
only  not  get  any  legislation  which  it  wanted,  but  that  it  could  not  prevent  being  made 
applicable  to  it  legislation  which  was  desired  by  the  larger  cities  of  Pittsburg  and 
Alleghany. 

Now,  answering  the  question  of  the  gentleman  from  Richmond  (Mr.  Meredith) 
categorically,  I  think  the  history  of  this  article  would  justify  me  saying  that  I  do  not 
consider  it  broad  enough  to  cover  classification.  It  was  originally  drawn  with  the 
language  in  it,  "uniform  as  to  the  class  to  which  they  relate,"  because  in  the  opinion 
of  the  committee  at  that  time  it  was  not  sufficiently  broad  to  cover  a  classification  of 
cities,  if  it  was  made.  That  language  was  stricken  out  because  we  did  not  intend  to 
classify,  or  we  did  not  think  it  would  be  wise  to  classify,  cities;  and  as  the  language 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXVEXTIOX  OE  TIEGIMA. 


1S98 


now  stands.,  wiih  the  history  of  the  adoption  of  this  article  by  the  committee,  I  would 
say  it  is  not  broad  enough  to  cover  the  power  of  the  Legislature  to  classifj'  cities. 

Mr.  ^leredith:  Is  it  contemplated  that  there  will  be  a  general  law  forming  the 
chaiter  foT  cities  O'f  all  sizes? 

;\Ir.  Brooke:    Yes,  sir. 

]\Ir.  ]\Ieredith;  I  think  the  charter  for  a  city  of  five  thousand  inhabitants  would  be 
too  small  for  the  city  of  Richmond. 

Mr.  Brooke:  That  is  a  question  that  has  also  been  considered  to  some  extent  by 
the  committee.  The  idea  was  that  the  Legislature,  in  passing  unifoiTQ  laws  for  the 
government  of  cities,  being  incorporated  communities  of  more  than  five  thousand 
inhabitants,  would  grant  to  them  all  alike  all  of  the  pov.-ers  granted  to  any,  leaving 
it  in  the  discretion  of  the  cities,  as  their  necessities  might  require, to  make  use  of 
those  laws  or  not.  If  a  city  of  ten  thousand  inhabitants,  having  its  charter  as  a  mere 
grant  to  be  used  by  its  people  in  their  discretion,  should  undertake  to  encumber 
itself  with  such  a  government  as  the  city  of  Richmond  or  the  City  of  Norfolk  has,  of 
course  it  would  operate  harshly,  but  the  idea  was  that  it  ought  to  be  a  matter  of  State 
policy  as  to  how  much  of  the  powers  of  local  self-government  should  be  given  to  these 
State  agencies  of  local  governments,  and  leave  it  to  the  local  necessities  of  the  people 
to  be  determined  by  them  as  to  how  much  of  it  should  be  used  by  them,  thus  taking 
away  the  necessity  for  the  individual  localities,  from  time  to  time,  as  their  necessities 
should  develop,  to  apph.-  to  the  Legislature  for  special  laws,  and  taking  away  from  the 
Legislature  the  temptation  to  interfere  by  passing  laws  with  regard  to  the  govern- 
ment of  these  towns. 

Before  leaving  that  otiestion  I  wish  to-  say,  in  passing,  that  in  this  State,  and  in 
most  of  the  Southern  States,  we  have  never  felt,  to  the  full  degree,  the  misfortune 
of  having  the  Legislature  ex  mero  rnotu  to  undertake  to  interfere  in  the  government 
of  the  cities,  but  in  the  States  of  the  North,  where  there  has  been  a  difference  in  the 
political  party  which  has  power  in  the  State  from  the  political  party  which  had  power 
in  the  cities,  that  danger  has  been  -esperienced.  and  has  been  felt  to  be  exceedingly  onerous 
upon  the  cities,,  such  as  the  State  of  New  York,  being  Republican  as  to  its  State  Govern- 
ment, undenaking  to  govern  from  the  city  of  Albany  the  city  of  NeAv  York,  which  is 
Democratic  in  its  local  politics.    So  in  Philadelphia  and  other  cities. 

The  thirteenth  section  of  the  judiciary  report,  providing  for  a  judiciary  system 
makes  no  provision  whatever  for  the  court  officers  who  should  be  provided  for 
in  the  cities.  It.  therefore,  became  the  duty  of  the  Committee  to  provide  for  those 
officers.  Section  4  of  the  report  provides: 

In  each  city  which  has  a  court  in  whose  office  deeds  are  admitted  to  record,  there 
shall  be  elected  by  the  qualified  electors  of  such  city  a  clerk  of  said  court,  who  shall  hold 
his  office  for  a  term  of  eight  years,  and  perform  sucn  other  duties  as  mav  be  required 
by  law. 

There  shall  be  elected  in  a  like  manner  and  for  a  like  term  all  such  additional 
clerks  of  courts  for  cities  as  the  General  Assembly  may  prescribe. 

That  provision  was  adopted  to  conform  to  the  judiciary  report  in  its  thirteenth 
section. 

The  fifth  section  of  the  report  is: 

In  every  city  which  shall  have  under  the  provision  of  this  Constitution  a  corpora- 
tion or  hustings  court,  or  a  separate  circuit  court,  there  shall  be  elected  by  the  qualified 
electors  of  such  city  one  Commonwealth's  attorney,  who  shall  also,  in  those  cities  having 
a  separate  circuit  court,  be  the  Commonwealth's  attorney  for  such  circuit  court,  and  who 
shall  hold  his  office  for  a  term  of  four  years. 

That  was  adopted  also  to  conform  to  the  judiciary  system  which  nad  been  reported 
by  the  .Judiciary  Committee.    Section  .5  proceeds: 


In  every  city  there  shall  be  appointed  in  a  manner  to  be  prescribed  by  law  one 


1894 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


commissioner  of  the  revenue,  whose  duties  and  compensation  shall  be  such  as  may  be 
prescribed  by  law,  and  who  shall  hold  his  ofRce  for  a  term  of  four  years. 

It  is  giving  out  none  of  the  secrets  of  the  committee  to  say  that  we  had  quite  a 
contention  in  the  committee  over  that  provision.  It  was  finally  adopted  by  a  majority 
of  the  committee,  I  think,  largely,  because  it  put  that  office  in  the  cities  upon  the  secure 
footing  upon  which  the  same  office  in  the  counties  was  put  by  the  action  of  the  Com- 
mittee of  the  Whole  upon  the  report  of  the  Committee  on  the  Organization  and  Govern- 
ment of  Counties. 

That  is  equally  true  of  the  sixth  section,  which  provides  for  the  city  treasurer  and 
the  city  sergeant,  and  is  as  follows: 

In  every  city  there  shall  be  elected  by  the  qualified  electors  thereof  one  city 
treasurer,  who  shall  serve  for  a  term  of  four  years,  but  who  shall  not  be  elected  nor 
serve  for  more  than  two  consecutive  terms,  nor  act  as  deputy  for  his  immediate 
successor. 

One  city  sergeant,  who  shall  hold  his  office  for  a  term  of  four  years,  and  whose 
duties  shall  be  as  prescribed  by  law. 

Those  officers  are  the  same  that  now  exist  under  constitutional  provision  in  all 
of  the  cities.  The  changes  are  only  in  relation  to  the  terms  of  office  and  the  manner 
of  their  selection. 

In  this  section  we  also  provide  that  in  all  cities  there  shall  be  a  mayor,  who  shall 
hold  his  office  for  a  term  of  four  years,  who  shall  be  the  chief  executive  officer  of  such 
city,  and  who  shall  see  that  the  duties  of  the  various  police  and  city  officers,  whether 
elected  or  appointed,  in  and  for  such  city  in  pursuance  of  this  Constitution  or  the 
general  laws,  are  faithfully  performed. 

I  will  say,  after  reading  that  far,  that  down  to  the  seventeenth  line  that  is  the 
section  as  it  now  exists  in  the  present  Constitution.  There  are  some  changes  after  the 
seventeenth  line,  and  I  will  go  on  and  read  them: 

He  shall  also  have  power  to  suspend  or  remove  such  officers  for  misconduct  in 
office  or  neglect  of  duty,  to  be  specified  in  the  order  of  suspension  or  removal;  but  no 
such  removal  shall  be  made  without  reasonable  notice  to  the  officer  complained  of,  and 
an  opportunity  afforded  him  to  be  heard  in  person,  or  by  counsel,  and  to  present  testi- 
mony in  his  defense. 

I  wish  to  call  attention  to  the  fact  that  no  removal  shall  be  made  without  reasonable 
notice,  but  there  isi  no  provision  that  no  suspension  shall  be  made  without  reasonable 
notice,  because  suspension  may  become  instantly  necessary,  and  a  removal  can  be  pro- 
vided for  by  a  suspension  pro  tempore,  until  the  removal  takes  place. 

We  thought  it  was  desirable  not  to  leave  this  power  in  the  mayor  as  arbitrary 
as  it  had  heretofore  existed  in  him,  for  two  reasons.  The  first  was  that  there  was  a 
danger  of  his  going  to  the  extreme  of  acting  with  absolute  arbitrariness,  and  the  other 
was  we  recognized  that  the  officer  to  be  suspended  or  removed  had  no  redress  in  acting 
at  all.    So  .^at  we  have  provided  that: 

From  such  order  of  suspension  or  removal,  the  officer  so  suspended  or  removed 
shall  have  an  appeal  of  right  to  the  corporation  or  hustings  court,  or  to  the  circuit 
court  of  such  city,  in  which  court  the  case  shall  be  heard  de  novo  by  the  judge  thereof, 
whose  decision  shall  be  final.  He  shall  have  all  other  powers  and  duties  which  may  be 
conferred  and  imposed  upon  him  by  the  general  laws. 

Now,  gentlemen,  I  said  in  the  beginning  that  our  attention  was  largely  directed  to 
the  securing  of  better  city  governments,  by  enlarging  the  powers  of  the  mayor  and 
Iiolding  him  to  a  greater  responsibility,  and  by  guarding,  if  possible,  the  constitutent 
elements  of  the  city's  Legislature.  I  will  not  take  the  time  of  the  committee  by  reading 
these  long  provisions  exactly,  and  I  desire  to  consider  them  together  in  what  I  have  to 
:say. 


DEBATES  OE  THE  COJ^STITUTIOXAL  CONVENTION  OE  VIRGINIA. 


1895 


The  eighth  section  gives  the  mayor  a  veto  power,  but  it  is  guarded,  as  is  usual 
in  such  cas.es,  by  authorizing  the  coui:cil,  by  a  two- thirds  recorded  vote  of  each  branch, 
to  overrule  his  veto.  It  also  gives  the  power  to  the  mayor  to  veto  a  single  item  of  an 
appropriation  bill.  I  understand  you  gentlemen  had  quite  a  discussion  on  that  point 
the  other  day  in  connection  with  the  governor.  Now,  giving  the  mayor  the  power  of 
the  removal  of  these  officers,  and  giving  him  the  power  to  veto  a  bill  and  to  make  his 
veto  prevalent  unless  it  is  overruled  by  a  two^thirds  recorded  vote  of  both  housesi,  seems 
to  us  to  bring  about  the  result  that  the  mayor  of  a  city  can  never  hereafter,  as  he  has 
been  constantly  able  to  do  in  the  past,  excuse  himself  from  responsibility  for  mal- 
administration of  the  executive  department,  on  the  one  hand,  because  of  hisi  power  of 
removal  and  suspension  (and  giving  him  the  power  carries  with  it  the  responsibility), 
nor  to  excuse  himself  for  reckless  or  ill-considered  legislation  on  the  part  of  the  city 
council,  because  he  has  the  power  to  put  his  veto  upon  it,  and  if  he  doesi  not  do  that, 
and  it  is  undesirable  legislation,  he  is  responsible  to  the  people  of  the  city,  and  will 
feel  that  responsibility  and  exercise  his  power  whenever  it  seems  to  him  to  be  neces- 
sary. Heretofore,  in  my  own  observation,  when  the  attention  of  the  mayor  of  a  city 
has  been  called  tO'  the  fact  that  vicious  legislation  was  before  the  council  and  apt  to 
be  passed,  and  he  was  besought  to  use  all  the  influence  he  had  in  order  to  check  it, 
his  answer  has  invariably  and  truthfully  been,  "I  have  no  more  power  in  connection 
with  this  matter  than  you  gentlemen  who  are  protesting.  All  I  can  do  is  to  go  upon 
the  floor  of  the  council  and  help  you  to  lobby  against  it.  I  have  no  power  and  no 
responsibility  with  regard  to  it." 

There  are  some  cities  in  Virginia  where  the  veto  power  does  exist.  I  am  told  it 
exists  in  the  city  of  Richmond ;  but  curiously  enough,  it  may  be  overridden  by  a  majority 
vote  of  uiose  who  are  elected  to  the  different  branches  of  the  council.  It  may  have  the 
effect,  though  I  doubt  whether  it  has,  of  giving  publicity  to  tnreatened,  undesirable 
legislation,  and  making  the  people  aware  of  what  is  going  on;  but  it  gives  no  power 
practically  to  the  mayor  and  justly  does  not  hold  him  up  to  any  responsibility. 

Mr.  Thornton:  This  veto  power  to  which  you  refer,  I  presume,  refers  to  cities 
only.    There  is  no  provision  as  to  counties  or  towns. 

Mr.  Brooke:  It  refers  to  cities  only.  The  second  section  of  this  article  provides 
in  general  terms  for  the  passage  by  the  Legislature  of  general  laws  for  the  organiza- 
tion and  government  of  cities  and  towns.  It  has  been  the  policy  of  the  committee, 
except  in  very  few  instances,  not  to  deal  with  the  question  of  the  organization  and 
government  of  counties,  leaving  that  wholly  to  the  Legislature  as  it  now  is  left  to 
the  Legislature  under  our  law.  There  are  some  few  cases  in  which  we  do  deal  with 
it.    For  instance,  we  do  not  allow  a  town  to  create  too  much  debt. 

Now,  having  tried  to  clothe  the  mayor  with  the  necessary  power  to  justify  holding 
him  to  a  strict  responsibility  to  the  people  of  the  community,  the  committee  came  to 
the  second  branch  of  this  question,  to  be  considered  just  as  an  added  provision,  to 
secure  the  same  end.  That  was  in  regard  to  the  constitution  of  the  councils.  The 
present  Constitution  of  the  States  makes  no  provision  for  city  councils  at  all.  The 
result  is  that  the  provision  with  regard  to  councils,  their  constitution,  their  organiza- 
tion, their  powers,  are  just  as  variant  as  the  city  charters  are  numerous,  and  we  have 
been  faced  all  the  while  with  the  practical  difficulty  that  whenever  we  undertook  to 
consider  any  question  with  regard  to  the  organization  or  power  of  the  council  of  a  city, 
from  first  one  city  and  then  another  would  come  to  us  the  statement  that  that  would 
bring  about  a  change  in  their  organization  or  a  change  in  their  power.  If  we  had 
sought  or  attempted  to  please  all  we  would  not  have  been  able  to  get  any  article  in  at 
all;  so  we  held  to  our  original  idea,  to  bring  about  a  better  condition  of  affairs,  if  we 
could,  by  increasing  the  responsibility  and  the  power  of  the  mayor  on  the  one  hand, 
and,  in  addition  to  that,  throwing  around  the  constitution  of  the  councils  of  the  cities 
such  safe-guards  as  we  thought  would  tend  to  bring  about  a  more  conservative  member- 
ship. 

In  order  to  do  that  we  have  provided  that  in  all  cities  there  shall  be  a  city  council, 


1896  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


and  it  shall  consist  of  two  branches.  Permit  me  to  pause  here  just  a,  moment  to  say, 
in  connection  with  tnis,  that  we  have  had  from  different  cities  in  the  State  some  inquiry 
as  to  this  matter.  Some  of  the  cities  of  the  State  do  not  have  the  two  branches  now. 
while  some  have.  The  matter  we  were  trying  to  accomplish,  to  which  the  division  of 
the  council  into  two^  branches  was  subsidiary,  was  to  secure  a  due  weight  in  the  coun- 
cils of  the  city  of  the  conservative  element  that  might  be  elected  to  it.  You  have  one 
city  council,  we  will  say,  of  thirty  members,  in  one  branch.  Ten  or  twelve  of  them 
might  be  the  most  conservative  men  who  could  be  selected  by  the  people  of  the  com- 
munity, and  eighteen  or  twenty  of  them  might  be  men  ordinarily  good,  but  men  of  no 
experience,  of  not  much  interest  in  the  community,  of  no  legislative  knowledge,  and 
no  grasp  of  the  situation  which  would  come  upon  them  in  dealing  with  the  legislative 
matters  of  the  city.  If  you  have  one  branch  you  may  have  a  large  lump  of  leaven  in 
the  branch,  but  it  will  not  leaven  the  whole.  These  ten  or  twelve  conservative  men 
are  always  in  the  power,  if  not  always  overpowered,  by  the  larger  number  of  men  less 
conservative  and  less  qualified  to  deal  with  these  questions. 

i'hen,  how  were  we  to  deal  with  this  question?  It  was  not  possible  nor  proper 
for  us  to  say  that  peopde  who  had  no  property  or  who  had  no  fixed  interest,  by  the 
ownership  of  property,  in  a  community  could  have  no  membership  in  the  council.  It 
would  not  have  been  right  in  the  beginning.  It  would  not  have  been  right  to  say  to 
men  whose  interests  are  involved  in  the  prosperity  of  the  city,  but  whO'  have  no  interests 
growing  out  of  the  ownership  of  property  in  the  city,  that  they  should  have  nothing  to 
do  with  the  legislative  department  of  the  city.  That  being  true,  the  only  way  we  could 
bring  about  what  we  were  seeking  was  to  call  for  a  division  of  the  council  into  two 
branches,  one  of  a  smaller  number  of  members  than  the  other,  and  make  the  larger 
branch  what  might  be  called  the  popular  branch,  to  which  everybody  who  had  a  right 
to  vote  could  be  elected,  and  then  to  concentrate  in  the  smaller  branch  the  conserva- 
tive element  by  fixing  a  property  qualification,  very  low,  but  a  property  qualification  to 
the  membership  in  the  lesser  branch,  and  thus  erect  a  system  of  checks  and  balance 
which  seems  to  be  one  of  the  underlying  principles  of  our  legislative  government, 
whether  applied  to  national.  State  or  city  government,  and  making  the  conservative 
element  of  the  one  branch  have  power  enough  to  really  check  improper,  hasty  legisla- 
tion on  the  part  of  the  other  branch.  We  have  felt  that  by  giving  the  mayor  the  veto 
power,  and  giving  him  greater  power  over  the  officers,  the  people  of  the  city  could  hold 
him  to  a  direct  responsibility  for  maladministration  in  the  executive  department,  or 
reckless  legislation  in  the  legislative  department;  that  we  could  hold  the  mayor 
responsible  to  them,  and  we  could  hold  up  his  hands  by  constituting  a  conservative 
branch  of  the  city  councils,  which  would  be  a  check  upon  ill-considered  and  reckless 
legislation;  and  we  have  felt,  and  we  submit  it  to  the  gentlemen  of  this  committee, 
that  that  result,  if  it  shall  be  acquired,  will  far  more  than  outweigh  any  little  incon- 
venience which  may  result  from  a  reorganization  of  the  councils  in  those  cities  where 
the  councils  now  consist  of  only  a  single  branch. 

We  hope  the  Legislature  will  find  it  in  accordance  with  their  authority  to  give  a 
large  degree  of  the  power  of  local  self-government,  but  there  are  some  powers  we  feel 
ought  to  be  withheld  from  the  people  of  a  city,  beyond  the  power  of  the  Legislature 
to  grant,  and  there  are  some  which  we  think  ought  to  be  bestowed  beyond  the  power  of 
the  Legislature  to  withhold.  In  the  first-class  of  those  powers  which  should  be  restricted 
by  the  Constitution  so  that  the  Legislature  may  not  grant  them,  the  most  important, 
probably,  is  that  which  is  provided  for  in  Section  11,  as  follows: 

The  rights  of  every  city  or  town  in  and  to  its  water  front,  wharf  property,  public 
landing,  wharves,  docks,  streets,  avenues,  parks,  bridges,  and  all  other  public  places, 
are  hereby  declared  inalienable  except  by  an  ordinance  or  joint  resolution,  and  it  shall  re- 
quire a  recorded  vote  of  three-fourths  of  all  the  members  elected  to  such  branch  of  the 
council  of  said  cities,  and  in  case  of  the  veto  by  the  mayor  of  such  an  ordinance  or  joint 
resolution  it  shall  require  a  recorded  vote  of  three-fourths  of  all  the  members  elected 
to  such  branch  of  the  council  to  pass  the  same  over  the  veto. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


1897 


That  is  somewhat  of  an  exception  to  the  general  rule  of  veto  which  we  have  estab- 
lished. These  properties  of  the  city  cannot  be  aliened  by  the  city  except  by  a  three- 
fourths  vote  of  all  the  members.  The  mayor  has  still  the  right  to  veto  that,  but  whereas 
his  ordinary  veto  can  be  overcome  by  a  two-thirds  vote,  this  veto  must  'be  overcome 
by  a  three-fourths  vote.    I  simply  call  atttention  to  that  in  passing. 

Then,  in  the  same  section,  we  have  prohibited  the  cities  from  granting  any  fran- 
chise for  the  use  of  its  streets,  etc.,  for  a  longer  term  than  thirty  years.  We  have 
also  provided  in  that  section,  Mr.  Chairman,  that  when  a  franchise  is  granted  by  the 
city  council  it  shall  not  be  within,  the  power  of  the  council  and  the  grantee  of  the  fran- 
chise to  make  an  agreement  as  to  what  is  to  be  done  with  the  franchise  at  the  expira- 
tion of  the  thirty  years.  Of  course,  a  new  grant  upon  different  terms  might  be  made 
to  the  same  people,  but  if  it  ever  happened  that  that  was  not  desirable,  then  what  vrauld 
become  of  it?  And  it  is  provided  here  that  they  make  a  provision  in  the  beginning 
that  the  city  shall  take  the  franchise  over,  either  upon  a  valuation,  or  without  a  valua- 
tion; but  here  is  the  most  important  part  of  that  clause:  The  city  might  become 
possessed  of  a  plant  which  it  had  no  power  to  use.  Its  ownership  would  be  destruc- 
tion of  the  plant  so  far  as  the  legislative  grantees  of  the  franchise  were  concerned,  but 
it  would  be  of  no  use  to  the  city. 

So  that  this  section  provides,  without  at  all  countenancing  as  a  general  idea  that 
cities  ought  to  have  the  right  to  operate  properties  of  public  utility,  such  as  street  cars, 
etc.,  it  goes  on  to  provide,  however,  that  if  the  city  does,  become  possessed  of  such  a 
franchise  by  virtue  of  forfeiture,  or  by  virtue  of  some  arrangement  of  this  sort,  it  may 
have  the  right  to  operate  it  for  the  purpose  of  giving  it  a  value  to  some  fi^^'-.re 
purchaser. 

Now,  gentlemen,  I  am  very  nearly  through  with  what  I  have  to  say.  I  am  afraid 
1  have  taken  more  time  than  I  desired  to  take,  but  I  did  want  this  report,  and  the 
reasons  which  guided  us  in  its  adoption,  to^  be  presented  to  the  committee  so  that  we 
might  avoid  any  unnecessary  debate,  about  it.  Of  course,  I  do  not  expect  to  avoid 
debate,  and  I  do  not  object  to  debate. 

I  simply  wish  to  call  attention  briefly  to  two  or  three  other  clauses. 

The  twelfth  section  provides  for  the  passage  by  the  General  Assembly  of  some 
uniform  laws  looking  to  the  extension  and  contraction  from  time  to  time,  as  occasion 
may  require,  of  the  corporate  boundaries  of  cities. 

The  only  other  clause  of  any  importance  is  the  thirteenth.  That  provides  a  limit 
upon  the  bonded  indebtedness.  That  is  one  of  the  respects  in  which  we  thought  the 
Convention  ought  to  tie  the  hands  of  the  Legislature  in  their  grant  of  power  to  the 
cities.  I  am  not  going  into  the  details  of  that  until  the  question  comes  up,  except  to^ 
say  that,  of  course,  a  practical  question  would  always  arise  as  to  what  was  to  be 
counted  in  estim-ating  the  bonded  indebtedness  of  a  city.  All  of  us  who  have  lived 
in  cities,  and  have  some  slight  knoAvledge  of  the  manner  in  which  their  government  is 
run,  know  that  times  do  come  v/hen  the  cities  are  bound  to  borrow  money,  in  anticpa- 
tion  of  their  current  revenues,  to  meet  their  current  expenses.  It  has  been  done  in  my 
city  very  frequently  by  a  simple  note,  discounted  by  the  banks.  It  may  be  done  by  a 
revenue  bond.  It  may  be  done  in  a  great  many  ways.  The  question  was  whether  it 
was  fair  to  consider  that  in  estimating  the  amount  of  the  bonded  indebtedness  of  a  city. 
We  have  provided  that  in  doing  so  there  shall  not  be  taken  into  consideration : 

Certificates  of  indebtedness,  revenue  bonds  or  other  obligations  issued  in  anticipa- 
tion of  the  collection  of  the  revenue  of  such  city  or  town  for  the  then  current  year- 
Provided,  such  certificates,  revenue  bonds  or  other  obligations  mature  within  one  year 
from  the  date  of  their  issue,  and  be  not  past  due,  and  do  not  exceed  the  revenue  for 
such  year. 

If  they  are  past  due  they  ought  to  become  a  part  of  the  great  mass  of  the  city's, 
i!idebtedness,  because  the  fact  of  their  past  maturity,  to  some  extent,  emphasizes  the 
inability  of  the  city  to  meet  its  obligations,  and  it  is  nothing  more  than  fair  that  a  halt 
should  be  called  right  there. 
120 — Const.  Deb. 


1898 


DEBATES  OF  THE  CONSTITUTION'AL  CONVENTION  OF  VIRGINIA. 


There  are  some  cities  that  operate  water  works;  others  that  operate  gas  works. 
I  suppose  nobody  would  undertake  to  say  at  this  time  just  how  far,  in  the  passage  of 
time,  the  doctrine  will  become  more  and  more  popular  that  cities  may  have  the  right 
to  operate  these  public  utilities.  I  am  told  that  in  some  of  the  European  cities  they 
do  own  their  street  cars,  and  do  own  almost  all  of  those  public  utilities;  but,  so  far 
as  this  country  is  concerned,  so  far  as  our  population  is  concerned,  certainly  so  far  as 
the  State  of  Virginia  is  concerned,  this  doctrine  has  extended  as  yet  only  to  the  owner- 
ship and  operation  of  water  works,  gas  light  companies,  and  some  such  kindred  com- 
panies. 

It  is  not  fair  in  estimating  the  bonded  indebtedness  of  a  city,  and  whether  it  has 
arrived  at  the  permitted  percentage  or  not,  to  include  the  bonds  which  have  been 
issued  for  the  erection  of  these  plants,  and  for  the  operation  of  them,  from  which  the 
city  expects  to  get  a  revenue,  and  does  get  a  revenue,  sufficient  to  pay  the  interest  and  in 
time  to  pay  the  bonds,  because  it  does  not  add  to  the  obligations  of  a  city.  So  that  the 
second  exception  includes  these  bonds  which  are  issued  for  the  acquisition  of  such  public 
utilities  as  I  have  mentioned.  So  long  as  these  public  utilities  raise  revenue  to  pay  the 
interest  on  them,  and  to  provide  a  sinking  fund  from  year  to  year  sufficient,  at  the  expira- 
tion of  the  issue  of  the  bonds,  to  take  them  up,  there  is  no  reason  for  including  those  bonds 
in  the  estimate  of  the  indebtedness^  of  the  city,  in  the  effort  to  arrive  at  the  question 
whether  the  limit  has  been  reached;  but  with  those  bonds,  as  with  others,  it  may  turn  out 
that  the  enterprise  is  a  failure.  It  may  turn  out  they  do  not  pay  the  interest  on  the  bonds. 
It  may  turn  out  they  do  not  pay  enough  revenue  to'  provide  a  sinking  fund  to  take  the 
bonds  up.  If  that  ever  gets  to  be  the  case,  except  as  due  to  a  temporary  condition,  it 
is  ixv^>:!:.lr<g  more  than  fair  that  those  bonds,  should  be  included  in  the  estimate  of 
the  city  indebtedness.  So  this  section  provides  that  those  bonds  shall  not  be  included 
in  the  estimate  of  the  indebtedness  of  the  city,  unless,  after  such  a  time  as  may  be 
fixed  by  the  council,  they  have  failed  to  meet  these  obligations  and  have  become  a 
dead  debt  upon  the  city. 

There  is  one  other  little  provision  to  the  effect  that  the  assessment  of  real  estate 
in  cities  for  the  purposes  of  municipal  taxation  shall  be  upon  the  same  basis  as  the 
assessment  of  real  estate  in  cities  for  the  basis  of  State  taxation. 

Mr.  Robertson:  This  matter  is  of  considerable  importance  to  the  members  of  the 
Convention  who  represent  cities,  and  we  desire  to  understand  thoroughly  what 
the  idea  of  the  committee  is.  I  wish  to  ask  a  question  with  reference  to  Section  2,  just 
following  up  the  question  asked  by  the  gentleman  from  Richmond  (Mr.  Meredith). 

Do  you  intend,  by  that  section,  to  provide  that  it  shall  be  necessary  for  the  Legis- 
lature to  pass  a  general  law  applicable  to  all  cities  in  the  Commonwealth? 

Mr.  Brooke:  Yes;  we  expect  that  the  Legislature  shall  pass  "a  general  corpora- 
tion act,"  as  those  acts  passed  under  similiar  Constitutions  have  been  called,  in  which 
they  will  lay  down  the  general  powers  which  every  city  shall  have.  Now,  it  has  been 
suggested,  and  very  stronglj^  suggested,  that  if  we  were  to  impose  upon  a  small  city 
all  of  the  machinery  of  the  government  of  a  large  city  it  would  bankrupt  it;  but  the 
idea  of  the  committee —  and  it  has  been  the  idea  which  has  been  followed  by  the 
corporation  acts  passed  by  other  Legislatures  in  pursuance  of  similiar  provisions  in 
Constitutions — is  that  the  Legislature  shall,  by  a  uniform  act,  state,  for  instance,  what 
shall  be  the  powers  of  a  mayor,  except  such  as  are  provided  for  in  this  report;  what 
shall  be  the  general  powers  of  the  council;  what  shall  be  the  general  powers,  that 
every  city  organized  as  a  city  shall  have.  It  is  not  designed  to  impose  upon  them  any 
of  the  unnecessary  machinery  which  these  laws  may  provide  where  they  are  necessary, 
but  to  give  to  the  least  all  of  the  powers  of  local  self-government  that  are  given  to  the 
greatest,  and  let  them,  in  accordance  with  their  local  necessities,  use  much  or  little 
of  it  as  they  choose. 

Mr,  Robertson:  That  suggests  the  point  about  which  I  desired  toi  ask  you.  What 
is  your  idea  as  to  how  they  will  get  at  that?  How  would  a  city  determine  whether  it 
would  use  the  powers  or  not?    Would  it  be  necessary  to  have  an  election  in  each  city? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXLA.  1899 

Mr.  Brooke  :  it  is  a  little  hard  to  answer  that  question  directly,  but  the  idea  is  that 
the  Legislature  would  come  along  and  say  that  the  councils,  for  instance,  should  have 
the  power  to  establish  ware-houses,  we  will  say,  that  the  councils  shall  have  the  power 
to  establish  hospitals,  that  the  councils  shall  have  the  power  to  open  and  close  the 
streets. 

At  the  conclusion  of  Mr.  Brooke's  remarks  the  committee  rose  and  the  President 
resumed  the  chair. 

Mr.  Turnbull:  I  desire  to  offer  the  following  substitute  for  Section  3  of  the  report 
of  the  Committee  on  the  Organization  and  Government  of  Cities  and  Towns,  which, 
from  an  examination  of  the  report,  I  find  has  been  left  blank.  I  offer  this  so  that  it 
may  be  read  and  considered  by  the  Convention  when  the  report  is  again  taken  up  for 
consideration. 

The  mayor  and  council  of  a  town  shall  have  like  jurisdiction  in  civil  and  criminal 
matters  that  shall  be  prescribed  by  the  General  Assembly  for  justices  of  the  peace,  which 
shall  be  exclusively  within  the  corporate  limits  of  said  town. 

The  President:    The  amendment  will  lie  on  the  table,  under  the  rules. 

Mr.  Thom  asked  unanimous  consent  that  the  vote  of  the  Convention,  refusing  to 
reconsider  the  vote  bv  yrliich  the  provision  for  the  maintenance  of  the  University  of 
^''irginia  was  rejected,  might  be  taken  over,  in  view  of  the  fact  that  the  matter  had 
been  decided  by  a  tie  vote,  and  after  the  release  of  a  certain  pair,  which  if  insisted  upon, 
would  have  changed  the  result.  It  having  developed  that  the  failure  to  reconsider  was 
due  to  a  misunderstanding  of  the  authority  of  a  certain  member  to  pair  an  absentee, 
Mr.  Thom  asked  that  the  vote  be  retaken. 

The  President:  The  gentleman  from  Norfolk  city  (Mr.  Thom)  asks  unanimous 
consent  that  the  vote  of  the  Convention  refusing  to  reconsider  the  vote  by  which  the 
provision  for  the  maintenance  of  the  University  of  Virginia  was  rejected,  may  be 
retaken.    The  Chair  hears  no  objection. 

Mr.  Thom:  I  move  that  the  time  for  taMng  the  vote  be  fixed  for  11  o'clock  next 
Friday. 

The  President:  That  will  be  taken  as  the  sense  of  the  Convention  unless  objec- 
tion be  made.    It  is  so  ordered. 

The  matter  under  consideration  having  been  disposed  of,  the  Convention  adjourned 
until  Tuesday,  Januan^  21,  1902,  at  10  o'clock  A.  M. 


TUESDAY,  January  21,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 

Prayer  by  Rev.  Russell  Cecil,  D.  D.,  of  Richmond. 

On  motion  of  Mr.  Brooke  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organization 
and  Government  of  Cities  and  Towns,  Mr.  Withers  in  the  chair. 

Section  I  was  read  and  adopted  after  certain  inconsequential  amendments. 

Section  2  was  then  read. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  as  it  appears  to  certain  gentlemen  here  that 
perhaps  this  report  on  the  Organization  and  Government  of  Cities  and  Towns  would 
effect  the  present  municipal  charters  in  the  State,  I  am  going  to  take  the  liberty 
of  offering  this  amendment,  to  be  inserted  at  a  proper  point  in  the  report.  Perhaps 
it  would  be  best  to  have  it  come  in  at  the  end  of  the  report,  but  I  wish  it  to  be  read  now 
so  that  members  of  the  Committee  of  the  Whole  may  see  what  it  proposes.  It  is  just 
a  simple  safeguard. 

Subject  to  the  provisions  of  this  Constitution,  all  municipal  charters  heretofore 


1900  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

granted  shall  remain  in  force  until  expressly  altered  or  repealed  by  the  General  As- 
sembly. Any  municipality  heretofore  created  may,  by  special  act  of  the  General 
Assembly,  and  after  a  vote  to  that  effect  of  its  qualified  voters  in  an  election  held  for 
the  purpose,  reorganize  under  the  general  laws  applicable  to  the  class  to  which  it  be- 
longs, and  when  so  reorganized  its  special  charter  shall  cease  and  determine. 

I  wish  to  state  that  I  consulted  with  the  chairman  of  the  committee  before  offering 
the  amendment  and  he  approved  of  it. 

Mr.  Wise:  Mr,  Chairman,  I  desire  to  call  the  attention  of  the  gentleman  from 
Norfolk  (Mr.  Brooke)  to  the  provision  in  this  separate  section  relating  to  the  passage 
of  special  acts  by  the  Legislature.  It  seems  to  me  it  is  unnecessary  to  have  in  the 
Constitution  such  a  provision  as  is  contained  in  this  section.  I  will  read  it  for  the  infor- 
mation of  the  gentleman:  "And  no  special  act  shall  be  passed  in  relation  thereto 
except  in  cases  wherein,  in  the  judgment  of  the  General  Asseni^y  the  (fbjecf  of  the  act 
cannot  be  accomplished  by  general  laws."  It  is  left  entirely,  by  this  section  as  it 
stands,  to  the  judgment  of  the  General  Assembly  to  say  whether  the  object  can  be 
accomplished  otherwise  than  by  a  special  act.  It  seems  to  me  that  it  would  be  better 
to  strike  that  clause  entirely  from  the  Constitution.  It  amounts  to  nothing  as  it  stands. 
There  is  no  restraint  upon  the  General  Assembly,  because  it  is  left  entirely  to  their  judg- 
ment.   They  can  act  or  not  when  they  please. 

Mr.  Brooke:  Mr.  Chairman,  the  scheme  of  that  article  was  to  provide  by  general 
laws,  as  far  as  possible,  for  the  government  and  organization  of  cities  and  tov/ns.  But 
it  was  not  at  all  intended  to  absolutely  take  away  from  the  General  Assembly  the  right 
to  passi  special  acts  in  exceptional  cases.  Therefore,  the  article  was  drawn  to  provide 
for  the  passage  of  general  laws,  and  then  came  the  provision  in  relation  to  special  acts, 
to  which  is  added  the  exception,  namely,  except  in  those  cases  in  which,  in  the  opinion 
of  the  General  Assembly,  the  object  thereof  cannot  be  obtained  by  general  law.  That 
provision  had  been  the  law  under  the  old  Constitution.  It  has,  as  the  gentleman  from 
Richmond  city  (Mr.  Wise)  said,  been  inefficient,  and  the  General  Assembly  had  con- 
tinued to  pass  these  special  laws  in  relation  to  cities  and  towns  just  as  if  that  provision 
had  not  been  in  the  Constitution  at  all.  To  further  guard  it,  however,  the  Committee 
thought  if  they  would  provide  that  if  these  special  acts,  while  it  was  still  in  the  power 
of  the  General  Assembly  to  pass  them,  should  not  be  passed  without  a  two-thirds  voce 
of  all  the  members  elected  to  both  houses  of  the  General  Assembly,  that  would  put  a 
check  upon  these  special  acts,  and  at  the  same  time  would  leave  the  hands  of  the  Legis- 
lature free  to  deal  with  exceptional  cases.  W/e  had  in  mind  also  in  the  preparation  of 
the  article  the  fact  that  one  of  the  provisions  of  the  legislative  article  raises  a  standing 
committee  to  determine  whether  or  not  acts  which  are  offered  to  the  Legislature  for 
passage  are  special  acts  or  not,  so  that  it  would  seem  to  us  that  if  an  act  is  offered  for 
the  relief  of  a  city  which  finds  itself  in  peculiar  circumstances  in  relation  to  the  general 
law,  and  such  an  act  could  run  the  gamut  first  of  an  examination  and  report  of  a 
standing  committee  of  the  Legislature,  to  determine  whether  or  not  the  effect  could  be 
obtained  by  a  general  law,  and  then  a  two-thirds  recorded  vote  of  all  the  members 
elected  to  the  two  houses  of  the  General  Assembly  is  required,  sufficient  guard  would 
be  put  against  a  multiplication  of  special  acts,  and  yet  the  hands  of  the  Legislature 
would  not  be  tied  so'  as  tO'  prevent  it  from  giving  relief  in  deserving  cases. 

Mr.  Meredith:  Mr,  Chairman,  I  desire  to  offer  an  amendment  along  the  same  line, 
but  not  in  exactly  the  same  language,  and  I  think  the  appropriate  place  is  at  the  end 
of  Section  2.  The  second  section  provides  that  the  General  Assembly  shall  incorporate 
these  municipalities  by  the  general  laws.  The  language  is  such  that  it  looks  as  if  all 
cities  have  to  be  embodied  under  those  general  laws.  If  you  look  to  the  close  of  the 
first  section  you  will  see  it  is  provided  that  charters  of  cities  of  under  five  thousand 
inhabitants,  are  not  repealed.  There  is  an  express  statement  as  tO'  that  and  nothing 
as  to  cities  of  over  five  thousand  inhabitants.  I  am  afraid  of  the  principle.  As  there 
is  a  requirement  here  that  the  general  law  shall  apply  to  all  cities  and  towns  under  that 
state  of  circumstances  I  think  there  ought  to  be  an  express  statement  in  the  Constitu- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXI-A. 


1901 


lion  as  to  what  is  intended  in  reference  to  existing  cities  of  over  five  thousand  inhabi- 
tants. If  it  is  not  objectionable  to  the  chairman  of  the  committee  I  should  like  him 
to  accept  that  amendment.    Otherwise  I  will  have  to  offer  it  and  nave  it  voted  on. 

Mr.  Brooke:  Mr.  Chairman,  I  will  say  to  the  gentleman  from  Richmond  (Mr.  Mere- 
dith) that  I  myself,  and  I  think  I  can  speak  for  the  committee,  have  no  obejction  to  the 
principle  involved  in  the  amendment  which  he  proposes  to  offer.  I  have  no  doubt  the 
language  can  be  framed  so  that  it  will  be  satisfactory. 

Mr.  Meredith:  This  is  the  language  I  wish  to  offer,  to  be  added  at  the  end  of 
Section  2: 

But  the  cities  of  the  Commonwealth  now  having  charters  may  retain  the  same  until 
they  shall  be  respectively  repealed  or  amended  by  the  General  Assembly:  Provided, 
however,  that  each  of  said  charters  be  and  the  same  is  hereby  amended,  as  to  all 
provisions,  restrictions,  limitations  and  powers  set  forth  in  each  of  the  subsequent 
sections  of  this  article,  or  otherwise  provided  in  this  Constitution. 

My  object  is  this:  I  do  not  want,  if  possible,  to  have  these  city  charters  hanging 
in  the  air.  Take  the  city  of  Richmond.  The  bonded  indebtedness  is  $7,000,000,  and 
if  it  is  unkno\\TL  as  to  what  is  to  be  oiir  future  charter  it  will  have  a  very  seriousi 
effect  upon  our  financial- condition,  as  well  as  a  depressing  effect  upon  securities  we 
already  have  out.  Therefore,  I  should  like  some  specific  statement  put  in  the  Constitu- 
tion requiring  that  these  charters  shall  exist.  As  all  city  charters  are  held  subject  to  the 
will  of  the  Legislature  the  amendment  provides  that  they  shall  exist  until  repealed  or 
amended  by  the  General  Assembly.  It  does  not  destroy  the  right  of  the  General 
Assembly  to  amend  or  appeal  charters,  a  power  it  has  always  had,  but  allows  them  to 
exist  until  that  is  done,  so  that  we  may  have  some  certain  status.  At  the  same  time  it 
subjects  the  cities  that  now  have  charters  to  all  the  provisions,  restrictions,  limitations 
and  powers  prescribed  in  the  other  sections  of  this  article.  I  do  not  know  that  I  can 
agree  with  all  of  these  provisions.  Some  of  them  are  very  strikingly  wise,  and  I  should 
like  to  see  these  cities  subjected  to  them;  but  to  say  that  they  must  get  a  new  charter, 
without  knowing  as  to  what  restrictions  and  limitations  will  be  put  upon  them  by 
the  General  Assembly,  would  be  a  very  dangerous  thing  to  us  in  the  financial  world. 

Therefore,  I  am  willing  to  take  the  burden  of  being  subjected  to  these  provisions 
which  we  deem  wise,  and  to  put  them  into  the  Constitution;  but  I  think,  as  to  any- 
thing in  the  future,  we  ought  at  least  to  retain  our  charter  until  the  General  Assembly 
acts  upon  it.  I  should  like  to  submit  the  amendment  to  the  chairman  of  the  committee 
and  subject  it  to  criticism  by  him;  but  I  want  to  embody  that  idea,  which  seems  to  me 
to  be  appropriate  to  Section  2. 

I  do  not  know  exactly  the  language  of  the  amendment  offered  by  the  colleague 
from  Richmond  (Mr.  Gordon),  but  it  seems  to  me  to  look  forward  to  an  election  as  to 
this  charter. 

Mr.  James  W.  Gordon:    No,  sir;  it  does  not  at  all. 

Mr.  George  K.  Anderson:  Mr.  Chairman;  I  desire  to  suggest  to  the  gentleman  from 
Richmond  (Mr.  Meredith)  that  he  probably  ought  to  use  the  words,  "existing  at  the 
time  of  the  adoption  of  this  Constitution,"  instead  of  the  words,  "now  existing." 

Mr.  Meredith:    I  accept  that  amendment. 

Mr.  Eggleston:  Mr.  Chairman,  it  seems  to  me,  from  hearing  the  amendment  read, 
that  it  is  a  provision  which  belongs  in  the  schedule  of  the  Constitution  and  not  in  this 
article.  I  suppose  a  similar  provision  will  be  put  into  the  schedule  in  regard  to  existing 
laws,  to  the  effect  that  all  existing  laws  not  in  conflict  with  this  Constitution  will  be  con- 
tinued in  force,  and  that  seems  to  be  the  effect  of  the  amendment  of  the  gentleman  from 
Richmond  (Mr.  Meredith).  I  do  not  think  it  has  any  special  place  in  this  article  on 
the  organization  and  government  of  cities  and  towns,  but  applies  with  equal  force  to 
all  existing  laws. 

Mr.  Meredith:  I  will  call  the  attention  of  the  gentleman  to  the  fact  that  it  is 
desired  that  we  should  have  some  specific  declaration  on  the  subject.    It    is  a  very 


1902 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


important  matter  to  us.  It  should  not  be  necessary  to  go  to  the  Legislature  and  ask 
for  a  charter;  and  we  would  have  to  do  that  in  order  to  retain  these  charters  until 
repealed  or  amended  by  the  Legislature.  The  Legislature  has  always  had  the  right 
to  repeal  our  charters  and  amend  them.  We  do  not  desire  to  retain  any  more  protec- 
tion than  we  now  have;  but  we  want  some  specific  declaration  to  show  that  our  cities 
are  not  in  a  condition  of  uncertainty,  so  that  our  finances  will  not  be  effected. 

Another  provision  to  which  I  wish  to  call  attention,  one  that  seems  to  me  desirable, 
is  that  they  shall  retain  their  charters,  amended  according  to  the  provisions  of  the 
Constitution.  It  has  the  double  effect  of  subjecting  us  to  these  amendments,  most  of 
which  are  wise,  and  at  the  same  time  allows  us  to  retain  the  general  features  and 
general  body  of  our  charter,  so  as  to  avoid  our  remaining  in  a  state  of  uncertainty.  It 
can  do  no  harm,  and  it  will  be  very  beneficial  to  us. 

Mr.  Eggleston:  Mr.  Chairman,  it  was  not  necessary  to  put  this  provision  in  the 
Constitution  in  regard  to  the  counties.  In  fact  a  general  provision  in  the  schedule  of 
the  Constitution  will  give  the  gentleman  all  the  safety  and  all  the  protection  he  needs. 
I  do  not  see  the  use  of  marring  this  report  of  the  committee,  which  seems  to  be  an 
admirable  one,  by  putting  in  a  provision  that  ought  not  to  be  there.  It  ought  to  be  in 
the  schedule  of  the  Constitution  and  ought  to  apply  alike  to  all  the  provisions  of  the 
Constitution  and  all  the  communities  of  the  State. 

Mr.  Barbour:  Mr.  Chairman,  I  fully  concur  in  the  statement  of  the  gentleman 
from  Charlotte  (Mr.  Eggleston),  that  there  is  no  necessity  whatever  for  changing  this 
language.  The  effect  of  this  provision  is  to  provide  just  what  the  law  is  now,  that  the 
present  charters  are  maintained,  except  so  far  as  they  are  inconsistent  with  the  pro- 
visions of  this  article.  There  should  be  a  general  provision  in  the  schedule,  and  I  have 
no  doubt  it  will  be  incorporated. 

Mr.  Meredith:  Mr.  Chairman,  I  cannot  see  why  Uiese  gentlemen  should  raise 
any  difiiculty.  I  raised  none  in  regard  to  the  counties.  The  mere  fact  that  the  counties 
have  not  asked  for  this  is,  I  suppose,  no  reason  why  we  should  not  get  a  simple  protec- 
tion about  matters  so  important  to  us.  Surely  gentlemen  do  not  want  us  to  be  in  a 
position  of  uncertainty  as  to  where  our  charters  are.  The  effect  of  that  will  be  a  very 
serious  one  in  financial  matters.  Many  of  these  cities  are  undertaking  to  borrow 
money  for  the  purposes  of  public  improvement  and  public  utility,  and  I  submit  there 
cannot  be  any  harm  done.  The  proposed  amendment  is  not  objectionable  tO'  the  chair- 
man of  the  committee.  We  have  undertaken  tO'  retain  here  the  charters  of  cities  of 
less  than  five  thousand  inhabitants.  Now  we  simply  ask  that  we  be  allowed  to  retain 
these  charters  until  the  Legislature  shall  see  fit  to  respectively  repeal  them,  so  that  we 
can  feel  safe  in  regard  to  any  time  that  m.ay  elapse;  but  we  would  not  like  for  city 
charters  to  depend  upon  the  schedule.  The  Legislature  has  full  power  in  matters  of 
that  kind,  and  we  do  not  ask  for  any  special  power,  but  simply  for  temporary  protection. 

Mr.  Turnbull:  I  am  not  very  much  interested  in  matters  relating  to  the  cities, 
but,  from  hearing  read  the  language  of  your  amendment,  it  seems  to  me  it  will  defeat 
the  very  purpose  you  are  endeavoring  to  accomplish.  You  provide  that  these  charters 
shall  remain  in  force  until  they  are  repealed  or  amended.  If  there  is  an  amendment 
to  any  one  of  them  it  will  be  repealed,  under  the  language  you  have  adopted. 

Mr.  Meredith:  No;  they  will  simply  remain  until  they  are  repealed  or  amended. 
They  would  be  in  existence,  subject  to  the  amendment.  That  would  be  the  effect  of 
an  amendment,  I  think.  That  was  my  object,  and  I  think  that  will  be  the  construction 
of  the  language. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  I  offer  the  following  amendment  to  that 
amendment,  and  for  this  reason:  We  are  aiming  to-  accomplish  the  same  object,  except 
that  the  amendment  I  offer  indicates  the  method  by  which  any  of  these  municipalities 
heretofore  created  may  organize  under  the  general  laws  which  we  have  provided  in  case 
this  article  shall  be  passed  by  the  General  Assembly.  When  we  first  approached  the 
contemplation  of  this  subject,  we  felt  it  was  a  very  desirable  thing,  if  possible,  to  secure 
uniform  laws  for  the  organization  and  government  of  cities  and  towns;  and  at  one  time 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


1903 


there  was  a  proposition  that  we  should  place  all  of  these  municipalities  in  various 
classes  and  have  laws  passed  for  the  organization  of  the  different  classes,  and  vacate 
the  city  charters  in  that  way. 

We  felt  afterwards  that  that  would  be  too  rigid,  and  that  it  might  be  a  dangerous 
provision;  but  that  did  not  overcome  the  sentiment  in  the  committee  that  it  was  a 
wise  thing  to  encourage,  as  far  as  possible,  a  uniformity  of  organization  and  government 
throughout  the  cities  and  to^\^ls  of  the  Commonwealth.  The  advantages  of  such  uni- 
formity are  manifest,  and  I  believe  it  would  be  a  wise  thing  to  incorporate  in  this 
section  a  provision  looking  to  giving  encouragement  to  such  uniformity  of  laws  by 
providing  that  the  present  municipal  charters  shall  all  continue  in  force,  subject  to  the 
provisions  of  the  Constitution,  and  when  these  general  laws  are  passed  in  conformity 
to  the  mandate  of  this  article,  if  any  municipality  felt  that  the  general  laws  were  better 
for  it,  that  all  the  powers  granted  to  it  under  its  special  charter  were  preserved  under 
the  general  law,  it  could  then,  by  a  vote  of  its  qualified  electors,  voting  in  an  election 
held  for  the  purpose,  and  by  a  special  act  of  the  General  Assembly,  reorganize  under- 
this  general  law  and  take  its  place  along  with  all  the  cities  and  towns  of  the  Common- 
wealth, coming  in  subject  to  the  adoption  of  this  Constitution. 

It  seems  to  me  that  is  a  desirable  thing,  and  I  tnist  we  will  place  language  in  the 
Constitution  which  will  indicate  the  method  of  accomplishing  this  result,  and  will  give 
encouragement  to  these  municipalities  to  take  advantage  of  it. 

The  Chairman:  The  question  is  on  the  substitute  offered  by  the  gentleman  from 
Richmond  (Mr.  Gordon)  for  the  amendment  offered  by  the  gentleman  from  Richmond 
(Mr.  Meredith.) 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  15;  noes,  37. 
The  Chairman:    The  question  recurs  on  the  amendment  offered  by  the  gentleman 
from  Richmond  (Mr.  Meredith),  which  will  be  again  read. 

The  amendment  was  agreed  to;  there  being,  on  a  division,  ayes,  47;  noes,  9. 

Sec.  3.  The  judge  of  the  Corporation  Court  of  any  incorporated  community  now 
having  a  city  charter  of  less  than  5,000  inhabitants  may  reside  without  the  corporate 
limits  thereof,  and  the  same  person  may  be  judge  of  the  Corporation  Court  thereof  and 
the  judge  of  the  Corporation  Court  of  some  other  city  having  less  than  10,000  in- 
habitants. 

Mr.  James  W.  Gordon:  Before  the  gentleman  from  Rockbridge  proceeds  I  wish  to 
raise  a  point  of  order  on  that  amendment,  and  I  do  so  before  he  proceeds  so  that  the 
Chair  may  decide  it.  We  have  disposed  of  the  whole  judiciary  system  of  the  Common- 
wealth by  the  report  of  the  Committee  on  the  Judiciary.  ^Tien  vre  reach  the  third 
section  of  the  report  vve  are  considering,  it  is  stated  in  brackets:  "The  judiciary 
system  for  cities  has  been  reported  by  the  Committee  on  the  Judiciary."  This  report 
has  not  attempted  to  interfere  at  all  with  the  system  as  reported  by  the  Committee  on 
the  Judiciary-.  It  would  be,  in  effect,  an  amendment  of  the  report  on  the  Judiciary 
Department  to  consider  this  amendment  at  this  point.  I,  therefore,  raise  the  point 
of  order  that  it  is  not  germane  to  this  article,  ha^-ing  been  passed  upon  by  the  Conven- 
tion. 

Mr.  William  A.  Anderson:  Mr.  Chairman  This  amendment  is  rendered  necessary 
by  reason  of  the  adoption  of  the  judiciary  report.  It  is  not  in  direct  conflict  with  the 
system  embodied  in  the  report  of  the  Committee  on  the  Judiciary,  though  it  will  operate 
to  cure  a  defect  or  omission  in  that  report.  It  may  be  an  argument  against  the  pro- 
position that  it  could  have  been  considered  and  embodied  in  the  judiciary  report,  but 
it  is  not  a  parliamentary  objection  which  could  be  made  a  point  of  order. 

Mr.  George  K.  Anderson:  Mr.  Chairman,  I  would  also  suggest  to  my  friend  from 
Rockbridge  (Mr.  Anderson),  with  the  permission  of  the  Chair,  that  if  the  Committee 
on  the  Organization  of  Cities  and  Towns  had  presented  to  the  Convention  an  entirely 
nev/  judicial  plan  for  the  cities,  I  take  it  the  Committee  of  the  AVhole  could  have  con- 
sidered it,  notwithstanding  the  fact  fh^t  they  had  determined  upon  a  judiciary  plan  by 
the  judiciary  report  itself,  and,  therefore,  that  this  question  is  still  open. 


1904 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  Chairman:  The  Chair  feels  compelled  to  sustain  the  point  of  order.  He 
thinks  that  a  reading  of  Section  12  and  14  of  the  judiciary  report,  as  referred  to  the 
Committee  on  Final  Revision  and  Adjustment,  and  of  the  schedule,  will  satisfy  the 
committee  that  the  amendment  is  germane  to  the  12th  Section,  and  would  be  conflicting 
with  that  as  well  as  the  14th  section.  With  the  question  of  whether  or  not  the  com- 
mittee desires,  to  adopt  in  its  report  a  provision  conflicting  with  another  report,  the 
Chair  has  nothing  to  do,  but  on  the  question  of  its  being  germane  to  this  report,  under 
tJtie  report  made  by  the  committee,  the  Chair  is  compelled  to  sustain  the  point  of  order. 
Of  course,  the  gentleman  can  appeal  from  the  decision  if  he  so  desires. 

Mr.  William  A.  Anderson:  I  desire  to  take  an  appeal  from  the  decision  of  the 
Chair.  I  have  already  presented,  as.  fully  as  I  think  it  is  necessary,  the  views  which 
I  believe  justify  me  in  claiming  it  is  competent  for  this  committee  to  consider  the  pro 
position. 

The  decision  of  the  Chair  was  sustained;  there  being,  on  a  division,  ayes,  38;  noes, 

16. 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  gentleman 
from  Brunswick  (Mr.  Turnbull). 

The  mayor  and  councilmen  of  towns  shall  have  like  jurisdiction  in  civil  and  crim- 
inal matters  as  shall  be  prescribed  by  the  General  Assembly  for  justices  of  the  peace, 
which  shall  be  exclusive  within  the  corporate  limits  of  said  town. 

Mr.  Turnbull:  Mr.  Chairman,  I  desire  to  amend  that  by  inserting  after  the  word 
"mayor"  the  words  "or  police  justices."  I  offer  it  as  an  independent  section,  to  take 
the  place  of  Section  3,  which  is  left  blank. 

Mr.  Harrison:  Mr.  Chairman,  I  wish  to  suggest  to  the  gentleman  from  Brunswick 
(Mr.  Turnbull)  that  the  criminal  jurisdiction  of  the  municipal  authorities^  under  the 
present  Constitution  extends  a  mile  outside  of  the  town  limits,  and  to  ask  him  how 
that  matter  would  be  affected. 

Mr.  Turnbull:  I  do  not  know  that  it  would  affect  it  at  all.  The  amendment  simply 
provides  that  the  mayor  or  police  justices  and  councilmen  shall  have  jurisdiction  within 
the  corporate  limits  of  the  town.  I  see  no  reason  why  the  Legislature  could  not  extend 
the  jurisdiction  a  mile  outside  the  corporate  limits,  if  they  shall  see  fit  to  do  so. 

Mr.  Chairman,  this  amendment  occupies  an  entirely  different  position  from  that 
occupied  by  the  amendment  of  the  gentleman  from  Rockbridge  (Mr.  Anderson).  It 
does  not  conflict  with  the  report  of  the  Committee  on  the  Judiciary  in  any  way.  In 
order  to  satisfy  the  committee  of  that,  I  read  from  the  report  of  the  Committee  on  the 
Judiciary  Department  in  reference  to  justices  of  the  peace.  Section  27  of  that  report 
provides:  "The  number  and  jurisdiction  of  the  justices  of  the  peace  of  each  city  and 
county  shall  be  prescribed  by  law." 

It  does  not  apply  to  tow^ns.  Not  a  word  is  said  in  reference  to  justices  of  the  peace 
in  towns,,  because  the  present  law  provides  that  the  mayor  and  councilmen  of  all 
towns  shall  have  the  same  jurisdiction  within  the  limits  of  those  towns  as  that  of 
justices  of  the  peace.  My  amendment  simply  provides  that  when  the  Legislature  pro- 
vides the  jurisdiction  for  justices  of  the  peace,  as  it  has  a  right  to  do  under  the  judi- 
ciary report,  the  councilmen  and  police  justices  and  the  mayor  of  the  town  shall  have 
like  jurisdiction,  and  that  it  shall  be  exclusive  within  the  Mmits  of  the  town. 

I  live  in  a  town  of  from  one  thousand  to  twelve  hundred  inhabitants.  That  town  is 
situated  within  a  magisterial  district  and  the  justices  of  the  peace  in  that  district  have 
jurisdiction  inside  the  corporate  limits  of  the  town.  There  is  a  conflicting  jurisdiction 
between  the  justices  of  the  peace  within  the  town  and  the  justices  of  the  peace  outside. 
I  will  illustrate:  In  every  town  the  size  of  mine  there  is,  in  a  measure,  some 
conflict  between  the  jurisdiction  of  justices  of  the  peace  outside  and  those  inside..  In 
other  words,  people  outside  the  town  are,  in  a  measure,  prejudiced  against  the 
corporate  authority  of  the  town,  and  against  the  town  itself.  A  man  who  commits  an 
offence  inside  the  limits  of  the  town  will  go  outside  and  surrender  himself  to  a  justice 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


1905 


of  the  peace,  in  order  that  the  justice  of  the  peace  outside  the  town  may  take  charge 
of  him  and  punish  him  for  that  offence.  The  result  of  that  is  that  offences  are 
punished  by  justices  of  the  peace  outside  the  towns,  and  the  punishments  do  not  amount 
to  anything.  It  is  with  the  greatest  difficulty  the  mayor  of  the  town  can  preserve  order 
on  that  account. 

All  we  ask  is  that  the  jurisdiction  of  justices  of  the  peace  inside  the  toTsms  and  of 
the  mayor  and  councilmen  and  police  justice  shall  be  exclusive  inside  the  town,  so  that 
the  to^TL  authorities  can  control  the  business  of  the  town,  criminal  as  well  as  civil, 
inside  the  corporate  limits.    I  submit  we  are  entitled  to  it. 

^Ir.  William  A.  Anderson:  I  desire  to  ask  him  whether  the  effect  of  the  amend- 
ment will  be  to  give  to  the  councilmen  and  mayor  of  a  town  having  less  than  five 
thousand  inhabitants,  and  not  having  a  city  charter,  having  merely  a  town  charter, 
exclusive  jurisdiction  in  civil  cases  as  well  as  criminal.  As  I  understand,  those  towns, 
under  the  proposed  Constitution  as  well  as  under  the  present  Constitution,  are  in 
tegral  parts  of  the  magisterial  districts  in  which  they  are  situated  and  vote  in  the 
election  of  justices  of  the  peace  for  those  districts.  I  ask  my  friend  whether  the  effect 
of  his  amendment  v>'ill  be  to  assign  to  the  justices  located  in  those  magisterial  districts, 
whether  residing  inside  or  outside  of  the  town,  jurisdiction  in  civil  cases  within  the 

tO^^VTL. 

Mr.  Turnbull:    I  think  not,  because  under  your  city  charter — 

xvlr.  William  A.  Anderson:  My  question  does  not  relate  to  the  statutory  cities, 
but  to  toT\Tis,  like  that  in  which  the  gentleman  resides,  of  twelve  hundred  inhabitants, 
and  the  one  in  which  I  reside,  the  town  of  Lexington,  having  between  three  thousand 
and  four  thousand  inhabitants,  that  are  parts  of  the  magisterial  district  in  which  they 
are  situated,  and  vote  for  the  election  of  jtistices  of  the  peace.  I  want  to  know  whether 
lie  proposes  to  deny  to  justices  of  the  peace  the  jtirisdiction  in  civil  cases  in  qtiestions 
arising  before  them  within  the  limits  of  those  towns. 

Mr.  Turnbull:  That  is  exactly  the  object  of  my  amendment,  Mr.  Chairman,  to 
confine  justices  of  the  peace  to  the  jurisdiction  in  their  districts  outside  the  corporate 
limits  of  these  towns  and  give  the  mayors  of  the  towns  and  the  officers  I  have  named 
the  jurisdiction  inside.  They  are  the  ones  who  attend  to  all  business,  and  the  amend- 
ment is  for  the  purpose  of  allowing  the  mayor  of  the  towns  to  try  all  these  little  cases, 
and  to  keep  justices  of  the  peace  outside  the  limits  of  the  town  from  having  jurisdic- 
tion inside  at  all. 

Mr.  Ayers:  Mr.  Chairman,  I  fully  concur  in  what  the  gentleman  from  Bruns^^ck 
(Mr.  Turnbull)  has  said.  We  have  had  a  similar  experience  in  the  town  in  which  I 
reside.  The  justices  of  the  peace  outside  the  corporate  limits  come  in  and  make  a 
business  of  stirring  up  litigation,  getting  cases  brought  before  them,  and  we  have  had 
great  trouble  over  it.  Certainly  no  harm  can  come  from  making  this  jurisdiction  exclu- 
sive, because  you  have  ordinarily  in  town  five  or  six  or  seven  councilmen  and  a  mayor, 
and  you  have  an  ample  number  to  discharge  the  duties  of  the  office  of  justice,  both  in 
criminal  and  civil  cases. 

It  is  well  known  that  now  they  have  jurisdiction  as  justices  of  the  peace  of  all  towns, 
and  the  criminal  jurisdiction  extends  for  one  mile  beyond.  The  gentleman,  I  think, 
has  verv-  wisely  left  that  for  legislation,  and  only  announced  the  principle  that  the 
jurisdiction  of  justices  within  the  limits  of  the  town  should  be  execlusive.  I  hope  the 
committee  ^all  agree  to  the  amendment. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  I  simply  -udsh  to  make  a  suggestion  to 
the  gentleman  from  Brunswick,  0,lv.  Turnbull).  I  think  perhaps  there  is  great  merit 
in  his  proposition,  though  I  do  not  know  that  the  evil  he  complains  of  exists  in  the 
town  in  which  I  live.  I  have  no  objection  to  his  amendment,  but  it  seems  to  me  it 
ought  to  go  further  and  provide  that  the  citizens  of  these  towns  shall  not  vote  in  the 
election  of  justices  of  the  peace  for  the  magisterial  district  in  which  they  live. 

Mr.  Turnbull:  IMr.  Chairman,  that  can  be  provided  for  by  the  Legislature,  because 
if  the  justices  have  no  jurisdiction  inside  the  corporate  limits  they  ought  not  to  vote. 
That  can  be  provided  for  by  statute. 


1906 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Walker:  Mr.  Chairman,  I  dislike  very  much  to  oppose  any  proposition  advocated 
by  my  friend  and  desk-mate,  the  gentleman  from  Brunswick  (Mr.  Turnbull),  but  I  think 
the  amendment  which  is  proposed  by  him  is  an  unwise  one.  I  think,  first,  this  whole 
matter,  as  to  the  limits  of  the  jurisdiction  of  justices,  ought  to  be  left  to  the  Legislature. 
I  do  not  think  the  Constitution  is  a  proper  place  for  it.  If  it  were  a  question  proper 
for  us  to  discuss  here,  it  is  at  least  an  open  question  as  to  whether  this  would  be  a  wise 
provisional  statute.  In  support  of  that  assertion  I  call  the  attention  of  the  committee 
to  the  fact  that  what  the  gentleman  from  Brunswick  proposes  in  his  amendment  was 
the  law  in  this  State,  that  it  was  found  to  work  unsatisfactorily,  and  that  it  has  been 
changed  by  statute. 

Now  we  are  proposing  to'  fix  in  the  Constitution,  as  a  matter  of  law  which  can  not 
be  changed,  a  provision  which  has  been  tried  in  the  State  and  which  it  has  been  found 
by  the  Legislature  necessary  to  alter.  The  gentleman  from  Brunswick  states  as  his 
reason  for  offering  the  amendment  that  it  is  intended  to  meet  a  local  condition  which 
exists  in  his  community.  I  take  it  there  are  other  communities  in  which  the  local 
conditions  would  justify  a  precisely  opposite  law,  and  I  know  that  is  true  with  regard 
to  at  least  one  town  which  is  in  my  own  district. 

There  are  many  cases  in  which  it  is  almost  impossible  to  get  the  mayor  and  coun- 
cilmen  of  the  town  to  properly  hear  and  decide  criminal  cases  which  come  up,  and  in 
order  that  that  may  be  done  it  is  neces.sary  that  the  justices  in  the  district  who,  as  the 
gentleman  from  Rockbridge  (Mr.  Anderson)  properly  says,  are  voted  for  by  the  very 
people  who  live  in  that  town,  shall  have  jurisdiction  for  the  trial  of  those  offenses. 

I  am  very  much  disposed  to  think,  Mr.  Chairman,  as  I  have  said  before,  that  it  is 
a  very  unwise  proposition;  that  it  would  be  unwise  as  a  matter  of  statute,  and  certainly 
that  the  limit  of  jurisdiction  of  officers  ought  to  be  left  to  the  Legislature  and  not  fixed 
in  the  Constitution. 

In  addition  to  that,  as  the  gentleman  from  Winchester  (Mr.  Harrison)  has  sug- 
gested to  the  gentleman  from  Brunswick  the  law  now  provides  that  the  criminal  juris- 
diction of  the  mayor  and  councilmen  and  police  justices  of  the  town  shall  extend  for 
a  mile  outside  and  around  the  corporate  limits  of  the  town.  That  provision,  it  seems 
to  me,  might  be  confusing  and  would  be  difficult  to  reconcile  with  the  provision  which 
is  sought  to  be  incorporated  in  the  Constitution.  You  provide  here  that  the  mayor  and 
councilmen  and  police  justices  shall  have  exclusive  jurisdiction  within  the  town,  Now, 
it  isi  proposed  that  they  shall  have  exclusive  civil  and  criminal  jurisdiction  within  one 
mile  beyond  the  town,  so  that  the  justices  of  the  peace  who  live  in  the  very  district 
in  which  the  town  is  situated  shall  not  have  authority  to  try  any  criminal  cases  within 
one  mile  of  the  town  limit. 

Mr.  Barbour:  I  suggest  to  my  friend  that  a  great  many  of  these  justices  live  in  the 
towns  themselves. 

Mr.  Walker:    Yesi;  a  good  many  of  the  justices  live  right  in  the  very  town. 

On  the  whole,  Mr.  Chairman,  I  think  it  would  be  unwise  even  as  a  matter  of  statute, 
and  it  had  better  be  left  to  the  Legislature,  if  it  shall  be  necessary  for  them  to  do  so, 
to  adjust  the  law  tO'  meet  local  conditions,  and  not  to  fix  firmly  and  irrevocably  in  the 
Constitution  a  provision  which  would,  perhaps,  be  unwise  as  a  matter  of  general 
statute. 

Mr.  R.  Walton  Moore:  I  know  of  at  least  one  town,  a  small  town  in  the  State, 
where  the  people  forgot  and  neglected  for  several  years  to  elect  a  mayor  and  coun- 
cilmen, and  it  would  have  been  impossible  to  call  upon  any  officer  to  try  small  cases 
there  if  such  an  amendment  as  is  now  proposed  had  been  at  that  time  a  provision  in 
the  Constitution. 

Mr.  Parks:  Mr.  Chairman,  I  agree  with  the  gentleman  from  Northumberland 
(Mr.  Walker)  that  this  matter  ought  not  to  go  in  the  Constitution  at  all,  but  should 
be  left  entirely  to  the  Legislature;  but  I  hope  the  Committee  of  the  Whole  will  sustain 
the  amendment  I  now  offer,  for  that  ought  to  be  done,  even  if  the  amendment  of  the 
gentleman  from  Brunswick  is  then  adopted,  but  I  hope  that  will  be  voted  down.  His 


DEBATES  OE  THE  COXSTITUTION'AL  COXVEXTIOX  OE  VIRGINIA.  1907 

amendment  reads:  "The  mayor,  police  justices  and  councilmen  of  towns  shall  have 
like  jurisdiction  in  civil  and  criminal  cases." 

I  move  to  amend  by  striking  out  "civil  and,"  so  that  it  shall  read.  "Shall  have 
jurisdiction  in  criminal  cases,  as  shall  be  prescribed  by  the  General  Assembly  for 
justices  of  the  peace." 

If  this  amendment  is  to  prevail  at  all,  then  we  have  a  political  sub-division  of  a 
county  known  as  a  magisterial  district  and  when  you  elect  a  magistrate  the  people 
within  the  corporate  limits  of  the  town  vote  for  the  magistrate,  and  he  is 
without  any  jurisdiction  whatever  in  the  town.  Suppose,  as  is.  suggested  by  the  gentle- 
man from  Brunswick  (Mr.  Turnbull)  the  inhabitants  of  the  city  or  town  shall  not  vote. 
Then  you  have  citizens  of  a  magisterial  district  not  voting  for  the  district  officer,  which 
is  an  anomaly. 

In  my  magistrial  district  the  best  magistrate  we  have  in  the  county  lives  in  the 
town.  Under  that  amendment  he  would  have  no  jurisdiction  in  his  toviTi  of  which 
he  is  a  resident.  In  addition  to  that,  in  the  small  towns  it  is  frequently  very  difficult 
to  get  any  man  to  accept  the  office  of  mayor  at  all,  and  if  you  say  that  he  shall  be 
bothered  with  all  the  little  civil  cases  that  come  up  you  will  scarcely  be  able  to  get 
a  man  to  take  the  office  at  smy  time.  Certainly,  if  this  amendment  is  adopted  at  all, 
I  do  hope  the  committee  "will  first  perfect  it  by  adopting  my  amendment  striking  out 
the  words  "civil  and"  and  leaving  the  jurisdiction  in  criminal  cases  alone. 

Mr.  Brooke:  Mr.  Chairman,  I  dislike  to  interpose  objection  to  any  provision  oifered 
by  gentlemen  coming  from  communities  which  are  especially  interested  in  its  passage, 
and  upon  the  merits  of  this  amendment  offered  by  the  gentleman  from  Brunswick  I  am 
inclined  to  agree  with  him;  but  it  was  the  policy  of  the  committee,  which  I  represent, 
to  leave  to  the  Legislature  the  passage  of  general  laws  which  shall  control  the  organiza- 
tion and  government  of  towns  of  less  than  five  thousand  inhabitants. 

It  does  seem  to  me  that  if  we  undertake  to  violate  that  principle  in  one  case  we 
shall  open  the  door  to  violation  of  it  in  other  cases,  I  think  if  there  is  any  virtue  at 
all  in  a  uniform  system  of  general  laws  to  govern  the  organization  and  government  of 
to-vvTLs,  that  benefit  will  all  be  lost  by  the  constant  intrduction  of  exceptions  to  the 
general  rule.    For  that  reason  I  am  opposed  to  to  the  amendment. 

Mr.  Turnbull:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  committee  to  this 
matter,  because  I  think  it  is  of  the  utmost  importance  to  towns  in  this  State  that  they 
should  be  able  to  control  their  own  self-government.  Why  does  a  town  make  applica- 
tion for  a  charter?  Why  do  they  want  to  have  themselves  incorporated?  It  is  in  order 
that  they  may  have  better  police  protection,  that  they  may  have  somebody  inside  the 
town  who  can  preserve  order  and  have  control  of  the  affairs  inside  the"  corporate  limits 
of  the  town.  That  is  the  object  for  which  they  are  incorporated,  and  unless,  they  are 
going  to  have  that  benefit  they  had  better  not  have  any  charters  at  all. 

The  only  object  of  this;  amendment,  and  the  only  reason  I  offer  it,  is  simply  to  allow 
these  towns,  that  have  been  incorporated  for  the  purposes  of  having  self-protection, 
where  they  have  to  go  to  the  expense  of  having  a-  mayor  and  town  organization,  to  be 
able  to  perfect  that  town  organization  in  order  that  they  may  have  the  benefit  of  the 
charter  which  they  have  applied  for.  No  harm  can  result  from  the  matter  at  all.  Be- 
cause the  gentleman  from  Northumberland  (Mr.  Walker)  has  a  little  town  in  his  dis- 
trict the  pople  of  which  have  a  mayor  and  a  council  in  whom  they  have  no 
confidence  is  no  reason  why  others  should  not  have  protection.  If  they  are  not  satisfied 
with  their  mayor  and  council  let  them  have  new  ones,  or  let  the  Legislature  repeal 
the  charter. 

That  is  the  position  presented  to  this  committee,  and  I  do  think  these  chartered 
towns,  if  they  have  no  mayor  or  nobody  to  attend  to  the  duties  of  the  offices  of  the  town, 
ought  to  be  abolished  and  the  charters  repealed.  But  I  do  insist  that  the  towns 
springing  up  in  different  sections  of  the  State,  and  some  of  them  are  equally  as  important, 
probably,  as  are  some  of  those  that  are  incorporated,  should  have  the  protection  this 
provision  would  give  them. 


1908 


DEBATES  OE  THE  CON"STITUTION"AL  CONVENTION  OE  VIRGINIA. 


In  my  town  we  have  large  interests,  because  it  is  a  railroad  point.  We  have 
shops  employing  a  hundred  or  more  operatives,  and  it  is  of  the  utmost  importance  that 
the  oflQcers  of  the  town  should  have  control  of  the  criminal  as  well  as  of  civil  business 
within  the  corporate  limits  of  the  town,  for  the  reason  I  mention.  Where  offenses  are 
committed  upon  the  streets  of  a  tow^n,  and  it  is  done  every  day,  the  offenders,  for  the 
very  purpose  of  avoiding  the  jurisdiction  of  the  mayor,  gO'  and  surrender  themselves 
to  justices  of  the  peace  outside  of  the  corporate  limits  of  the  town,  and  he  fines  them 
$2.50,  the  smallest  limit,  every  time.  The  effect  of  it  is  that  the  mayor  and  those  who 
are  trying  to  preserve  order  really  have  no  opportunity  at  all  to  do  so. 

It  does  seem  to  me  this  proposition  is  a  reasonable  one,  and  that  it  is  just  and  right 
in  the  premises,  and  I  hope  the  pleasure  of  the  Convention  will  be  to  adopt  it. 

Mr.  George  K.  Anderson:  The  counties  are  interested  in  this  matter,  and  I  hope 
I  may  have  the  attention  of  the  gentlemen  of  the  committee  in  what  I  shall  have  tO' 
say,  because  it  has  a  direct  bearing  upon  the  question,  I  hope  the  committee  will  not 
adopt  the  amendment  either  as  perfected  by  the  gentleman  from  Page  (Mr.  Parks)  or 
as  originally  offered. 

Mr.  Chairman,  there  are  some  towns  in  Virginia  I  know  of  that  have  had  no  elec- 
tion for  mayor  for  ten  years,  and  the  man  who  was  mayor  then,  though,  as  a  matter  of 
law,  he  still  remains  mayor,  absolutely  refuses  to  exercise  his  office  as  mayor,  and 
nobody  knows  actually  who  are  the  members  of  the  council  in  that  town. 

I  shall  not  call  its  name,  sir,  because  it  has  a  representative  upon  this  floor.  If 
the  amendment  of  the  gentleman  from  Brunswick  should  become  a  part  of  the  funda- 
mental law  of  this  State  a  man  could  go  inside  of  that  town  and  be  absolutely  immune, 
and  violate  the  law  as  much  as  he  pleased,  and  there  would  be  absolutely  nobody  to 
try  him. 

But,  Mr.  Chairman,  there  is  another  town  in  the  State  which  has  this  identical 
provision  in  its  charter,  and  I  want  to  tell  the  gentlemen  of  this  committee  what  the 
situation  is  in  that  town.  It  has  a  list  of  ordinances  as  long  as  the  moral  law.  It  has 
every  offense  known  to  the  law,  known  to  the  State  law,  defined  and  made  an  offense 
against  the  State  law  or  town  law.  When  complaint  is  made  to  the  mayor,  and  he  is 
the  only  man  who  has  the  power  to  issue  a  warrant  or  to  try  a  case,  that  an  offense  has 
been  committed,  he  issues  a  warrant  for  a  violation  of  the  town  law,  provided  he  thinks 
the  prisoner  or  the  party  to  be  arrested  is  able  to^  pay  the  fine.  If  he  is  able  toi  pay  the 
fine,  the  town  gets  the  fine.  If  the  defendant  is  not  able  to  pay  the  fine  the  mayor 
sends  him,  not  to  the  town  jail  for  thirty  days'^  but  miakes  the  offense  against  the  State 
law  and  sends  him  to  the  county  jail,  and  makes  the  State  pay  the  expense. 

There  are  in  that  town  two  good  magistrates,  elected  by  the  people  of  the  county, 
with  their  hands  tied  absolutely.  They  cannot  issue  a  warrant  when  people  come  toi 
them.  The  mayor  is  czar.  He  issues  a  warrant  if  he  wants  to,  and  if  he  does  not  want 
to  he  does  not  do  it.  When  he  does  issue  it  he  puts  the  fine,  if  there  is  one,  into  the 
town  treasury.    Otherwise  he  sends  the  prisoner  tO'  the  county  jail. 

The  conditions  in  that  city,  Mr.  Chairman,  are  entirely  too  divergent.  Let  the 
Legislature  attend  to  this  matter,  giving  to  justices  the  jurisdiction  it  sees  fit  to  give, 
and  do  not  let  us  attempt  here  to  confer  jurisdiction  upon  justices  of  the  peace  and 
define  the  limits  thereof.    It  is  unwise. 

Mr.  Eggleston:  Mr.  Chairman,  it  seems  to  me  the  view  taken  of  this  question 
by  the  gentlemen  who  oppose  this  amendment  is  the  correct  one,  that  where  it  is  of 
such  doubtful  expedience  to  establish  such  a  law,  as  this  amnedment  proposes,  it  is 
unwise  and  unsafe  to  put  it  into  the  Constitution  and  beyond  the  right  of  the  people 
to  repeal  it.  It  is  a  fact,  as  stated  by  the  gentleman  from  Wesmoreland  (Mr.  Walker), 
that  four  years  ago  the  Legislature  passed  an  act  with  a  provision  of  this  kind  and 
in  two  years  it  was  necessary  to  repeal  it,  because  of  the  great  complaint  all  over  the 
State. 

It  would  present  an  anomaly,  too.,  Mr.  Chairman,  if  you  provide  that  a  justice  from 
a  district  shall  have  no  jurisdiction  over  any  criminal  or  civil  cases  inside  of  a  corpora- 


DEBATES  OE  THE  CONSTITUTIOiTAL  CONVENTION  OF  VIRGINIA.  1909 

tion.  Here  is  a  civil  case  with  two  defendants,  one  of  whom  lives  in  the  corporation 
and  one  outside  of  the  corporation.  With  such  a  constitutional  provision  as  this  how 
is  the  justice  outside  the  corporation  going  to  try  that  case?  He  cannot  try  a  case 
where  even  one  of  the  defendants  lives  inside  of  the  corporation,  because  you  say 
that  he  shall  have  no  jurisdiction  inside  of  the  corporation.  On  the  contrary,  the  Legis- 
lature could  provide  that  the  mayor  of  that  city  should  have  jurisdiction  in  just  such  a 
case,  and  there  the  justice,  who  is  elected  and  voted  for  partly  by  the  voters  of  the 
town,  would  have  no  jurisdiction  in  the  town  and  could  not  possibly  try  the  case,  even 
if  one  of  the  defendants  lived  in  the  town.  On  the  other  hand,  the  mayor  of  the  town, 
who  is  not  elected  by  the  voters  of  the  magisterial  district,  could  have  no  jurisdiction 
to  try  cases  and  take  jurisdiction  of  parties  living  outside  of  the  corporation.  That 
is  in  regard  to  the  civil  cases. 

Now,  Mr.  Chairman,  the  towns  can  be  managed  in  another  way  in  regard  to 
criminal  jurisdiction. 

If  they  will  enact  ordinances,  making  these  petty  offences  alluded  to  offences 
against  the  ordinances,  then  the  mayor  can  have  jurisdiction  of  these  offences  and 
no  harmi  will  be  done;  but  it  seems  to  me  it  will  be  dangerous  to  put  into  this  Constitu- 
tion a  provision  which  has  been  enacted  in  the  law  within  the  last  four  years  and 
which  has  had  to  be  repealed. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Page 
(Mr.  Parks)  to  the  amendment  of  the  gentleman  from  Brunswick  (Mr.  Turnbull),  offered 
as  an  independent  section. 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  15;  noes,  42. 

Section  4  wasi  then  read  as  follows: 

Sec.  4.  In  each  city  which  has  a  court  in  whose  office  deeds  are  admitted  to  record 
there  shall  be  elected  by  the  qualified  electors  of  such  city  a  clerk  of  said  court,  who 
shall  hold  his  office  for  a  term  of  eight  years  and  perform  such  other  duties  as  may 
be  required  by  law. 

There  shall  be  elected  in  a  like  manner  and  for  a  like  term  all  such  additional 
clerks  of  courts  for  cities  as  the  General  Assembly  may  prescribe. 

Mr.  Hatton:  I  offer  the  following  amendment  Add  at  the  end  of  line  8,  of  Section 
4,  the  following: 

But  in  no  city  of  less  than  30,000  inhabitants  shall  there  be  more  than  one  clerk 
of  the  court,  who  shall  be  clerk  of  all  the  courts  of  record  in  such  city. 

Mr.  Chairman,  my  object  in  offering  that  amendment  is  simply  to  prevent  the 
separating  of  the  officers  of  clerk  of  the  corporation  court  and  clerk  of  the  circuit  court 
in  cities  of  less  than  30,000  inhabitants.  I  do  not  desire  to  make  any  extended  remarks 
upon  the  subject  of  the  amendment,  but  I  think  while  we  are  dealing  with  that  part  of 
the  report  relating  to  the  subject  of  clerks  of  the  courts,  we  should  prevent  the  Legis- 
lature from  creating  two'  offices  where  one  would  be  sufficient,  I  believe  that  in  most 
cities  of  the  Commonwealth  of  less  than  30,000  inhabitants  those  offices  are  now  filled 
by  one  man.  They  are  not  separated,  and  that,  in  my  judgment,  is  as  it  should  be. 
It  has  been  said  that  the  man  who  makes  two  blades  of  grass  grow  where  but  one  grew 
before  is  a  benefactor,  but  I  do  not  think  that  any  Legislature  which  makes  two  officers 
grow  where  but  one  grew  before  is  a  benefactor,  and  I  offer  that  amendment  so  as  to 
prevent  the  multiplication  of  offices  unnecessarily.  I  hope  it  may  be  the  pleasure  of  the 
committee  to  support  it. 

Mr.  Hamilton:  Mr.  President,  I  heartily  concur  in  the  suggestion  of  the  gentle- 
man from  Portsmouth  (Mr.  Hatton),  that  it  is  a  great  deal  better  to  have  one  efficient 
clerk  than  to  have  two  inferior  clerks.  My  observation  is  that  cities  having  under 
30,000  inhabitants  do  not  need  two  clerks — that  one  clerk  is  sufficient.  I  hope  that  the 
committee  will,  therefore,  adopt  that  amendment. 


1910 


DEBATES  OF  THE  CON"STITUTION"AL  CONVENTIOlNr  OF  VIRGINIA. 


Mr.  Brooke:  Mr.  Chairman,  I  simply  want  to  state  to  the  committee  the  theory 
under  which  this  clause  was  adopted.  The  judiciary  report  provided  for  a  judiciary 
system  for  the  cities.  It  was  changeable  in  its  form,  or  liable  to  change  in  its  form, 
according  to  the  growth  of  the  city,  and  also  in  respect  to  cities  having  a  population 
of  less  than  5,000  inhabitants.  It  made  no  provision  whatever  for  the  clerks  of  the 
court  of  the  system  which  was  presented.  The  Committee  on  the  Organization  and 
Government  of  Cities  and  Towns  has  simply  attempted  to  pass  a  section  here  which 
will  provide  for  such  clerks  as  shall  become  necessary  for  the  courts  that  might  be 
established  under  the  judiciary  system,  without  undertaking  to-  put  any  limitation  at 
all  upon  the  Legislature  as  to^  those  clerks,  presuming  that  the  Legislature  would  elect 
clerks  only  where  necessary  for  the  courts  which  had  been  provided  for  under  the 
judiciary  report.    It  was  in  that  view  prepared  in  this  section: 

In  each  city  which  has  a  court  in  whose  office  deeds  are  admitted  to  record  

It  would  cover  the  smaller  cities  and  towns  as  well  as  the  larger  ones — 

There  shall  be  elected  by  the  qualified  voters  of  such  city  a  clerk  of  said  court,  who 
shall  hold  his  office  for  a  term  of  eight  years  and  perform  such  other  duties  as  may  be 
required  by  law. 

There  shall  be  elected  in  a  like  manner  and  for  a  like  term  all  such  additional 
clerks  of  courts  for  cities  as  the  General  Assembly  may  prescribe. 

It  seemed  to  us  that  the  only  safe  thing  to  do  in  the  not  exactly  uncertain  form, 
but  the  form  in  which  the  report  of  the  Judiciary  Committee  has  provided  judiciary 
systems  for  the  cities,  in  order  to  provide  officers  for  these  courts,  was  to  require  the 
Legislature  to  elect  such  additional  clerks  as  from  time  to  time  should  become  neces- 
sary to  carry  out  the  system  of  the  Judiciary  Committee. 

Mr.  Meredith:  I  desire  toi  ask  the  gentleman  from  Portsmouth  (Mr.  Hatton)  if  he 
would  object  to  amending  his  amendment  by  leaving  out  the  latter  part  of  it.  He 
would  accomplish  the  object  he  seeks  if  it  should  be  read:  "But  in  no  city  of  less  than 
30,000  inhabitants  shall  there  be  more  than  one  clerk  of  the  court,  who-  shall  be  clerk 
of  all  the  courts  of  record  in  such  city."  The  language  below  that  seems  to  interfere 
with  the  present  arrangement,  and  as  if  we  had  to  rearrange  all  of  our  system  here. 
If  you  leave  it  asi  I  suggest  it  gets  exactly  what  you  want. 

Mr.  Hatton:  That  would  accomplish  my  object  so  far  as  it  would  apply  to  cities 
of  less  than  30,000  inhabitants.  It  would  certainly  do  that,  and  I  perfer  toi  have  the 
amendment  in  that  shape  to'  not  having  it  at  all,  but  it  does  leave  the  Legislature  free, 
in  cases  of  cities  of  over  30,000  inhabitants,  to  provide  separate  clerks  to  those  two 
instances  cited,  and  also  an  additional  clerk  for  that  additional  court  which  the  Judi- 
ciary Committee  has  allowed  the  General  Assembly  to  establish  in  cities  of  30,000  or 
more  inhabitants.  If  the  gentleman  from  Richmond  thinks  the  latter  part  of  that 
amendment  as  to  30,000  inhabitants  would  injuriously  affect  the'  city  of  Richmond 
I  would  have  no  objection  to  striking  it  out. 

I  accept  the  gentleman's  amendment. 

The  Chairman:    The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Portsmouth  as  amended  by  the  gentleman  from  Richmond. 
The  amendment  was  agreed  to. 

Mr.  Allen:  I  offer  the  following  amendment.  Insert  in  line  8,  after  the  word  "be," 
the  words  "elected  or,"  so  that  it  will  read: 

In  every  city  there  shall  be  elected  or  appointed,  in  a  manner  to  be  prescribed  by 
law,  one  commissioner  of  the  revenue,  etc. 

Mr.  Meredith:  Instead  of  reading  "in  every  city  there  shall  be  appointed  or 
elected"  I  desire  it  to  rea.d  as  follows: 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


1911 


In  every  city  there  shall  be  appointed,  in  a  manner  to  be  prescribed  by  law,  either 
by  the  Mayor  of  the  city  or  by  one  of  the  city  judges  of  said  city  ,as  may  be  deter- 
mined by  law,  a  commissioner  of  the  revenue. 

In  other  words,  the  object  of  the  amendment  I  olfer  is  that  the  commissioner  of 
the  revenue  shall  be  appointed.  I  think  it  is  extremely  desirable  he  should  be  appointed 
in  the  city,  but  I  do  not  think  the  appointment  ought  to  be  left  so  broad,  because  if  it 
is  he  may  be  appointed  by  the  Governor  or  some  distint  oflBLcial.  I  think  the  local 
government  ought  to  be  recognized.  Therefore,  I  ask  that  the  appointment  be  made 
by  some  of  the  local  oflacials,  so  that  we  may  have  local  officials,  so  that  we  may  have 
local  self-government.  I  do  not  provide  that  the  mayor  shall  make  the  appointment, 
for  it  might  turn  out  that  the  Legislature  would  require  the  judges  to  make  the  ap- 
pointment; so  I  leave  it  open  to  the  Legislature  to  decide  whether  they  shall  be  ap- 
pointed by  the  mayor  or  by  the  city  judges. 

My  own  idea  is  that  they  should  be  appointed  by  the  mayor,  but  at  the  same  time 
I  do  not  know  that  we  can  ask  that,  because  the  Legislature  might  see  fit  tO'  require 
the  commissioners  of  the  revenue  in  the  counties  to  be  appointed  by  the  judges.  If 
that  happens  they  would  require  the  commissioners  of  the  revenue  in  the  cities  to  be 
appointed  in  the  same  way.  I  ask  that  the  amendment  be  read,  and,  if  it  meets  with 
the  approval,  that  it  be  adopted. 

The  secretary  read  as  lollows: 

In  every  city  there  shall  be  appointed,  in  a  manner  to  be  prescribed  by  law,  either 
by  the  mayor  of  the  city  or  by  one  of  the  city  judges  of  said  city,  as  may  be  deter- 
mined by  law,  one  commissioner  of  the  revenue,  whose  duties,  etc. 

Mr.  Eggleston:  I  give  notice,  then,  that  if  the  amendment  of  the  gentleman  from 
Richmond  (Mr.  Meredith)  is  not  adopted  I  shall  offer  an  amendment  to  the  amendment 
of  the  gentleman  from  Richmond  (Mr.  Allen)  to  the  effect  that  if  these  commissioners 
are  elected  they  shall  be  ineligible  to  succeed  themselves. 

Mr.  Parks:  I  suggest  to  the  gentleman  from  Charlotte  (Mr.  Eggleston)  that  the 
vote  will  first  be  taken  upon  the  amendment  of  the  gentleman  from  Richmond  (Mr. 
Meredith),  and  that  his  amendment  is  now  in  order,  there  only  being  one  amendment 
pending  to  the  substance  of  the  proposition. 

Mr.  Summers:  My  amendment  is  that  the  commissioners  shall  be  elected  by  the 
people.    I  desire  to  offer  that  as  a  substitute  for  all  the  others. 

Mr.  Barbour:  I  offer,  as  an  amendment  to  the  amendment  offered  by  the  gentle- 
man from  Richmond  city  (Mr.  Allen),  these  words,  to  be  added  at  the  end  of  the 
section:  "But  should  such  commissioner  of  the  revenue  be  chosen  by  election  of  the 
people  ,  then  he  shall  be  ineligible  for  re-election  to  the  office  for  the  next  ensuing  term." 
Is  that  amendment  in  order,  Mr.  Chairman? 

The  Chairman:  The  Chair  thinks  the  substitute  of  the  gentleman  from  Richmond 
(Mr.  Meredith)  for  the  amendment  of  the  gentleman  from  Richmond  (Mr.  Allen)  is 
first  in  order. 

Mr.  Barbour:  Is  it  not  necessary  for  the  amendment  to  be  perfected  before  it 
can  come  in  conflict  with  the  substitute? 

The  chairman:  The  amendment  of  the  gentleman  from  Richmond  (Mr.  Meredith) 
is  not  an  amendment  to  the  whole  section.  It  is  merely  a  substitute  for  the  proposed 
amendment  of  the  gentleman  from  Richmond  (Mr.  Allen)  to  the  section  as  reported 
by  the  committee. 

Mr.  Glass:  I  move  to  amend  by  making  the  section  read:  "In  every  city  there 
shall  be  appointed  by  the  juage  of  the  corporation  or  hustings  court  one  commissioner 
of  the  revenue,"  etc. 

Mr.  Meredith:  Mr.  Chairman,  gentlemen  representing  city  constituencies  ought 
to  see  what  lies  before  them.  A  provision  has  been  adopted  here  that  the  commissioners 
of  the  revenue  in  the  counties  may  be  appointed,  and  if  elected  they  shall  not  be  elected 
for  more  than  one  term. 


1912 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


We  ought  to  recognize  the  fact  that  that  provision  will  be  to  our  detriment  unless 
we  can  have  our  commissioners  appointed.  You  are  more  apt  to  get  a  good  man  by 
appointment,  and  you  should  have  the  privilege  of  retaining  that  man  in  office  for  more 
than  one  term.  Whatever  may  be  our  personal  perference  as  to  election  or  appoint- 
ment we  had  better  take  appointment  and  have  the  privilege  of  retaining  these  men 
in  office,  having  the  guarantee  that  they  vv^ill  do  their  duty  because  they  are  subject  to 
removal  by  a  high  official,  like  me  judge  or  mayor. 

One  word  in  regard  to  the  amendment  offered  by  the  gentleman  from  Lynchburg 
(Mr.  Glass).  I  think  it  is  desirable  that  there  should  be  some  elasticity  as  to  the 
manner  in  which  they  shall  be  appointed.  I  do  not  think  it  is  desirable  to  tie  the  hands 
of  the  Legislature  specifically  to  the  appointment  by  the  judges.  We  all  know  that  in 
city  government  now  the  object  is  to  have  some  head  at  whom  you  make  your  entire 
fight  in  a  political  contest.  The  idea  is  to  let  the  mayor  have  the  appointing  power 
and  make  him  the  object  of  the  contest  in  all  political  fights.  It  seems  to  me  that  one 
of  the  difficulties  of  the  present  methods  of  governing  the  cities  of  the  State  is  that  the 
mayor  has  no  power  in  many  cities.  In  most  of  them,  if  not  in  all  of  them,  he  is  a 
mere  figure-head,  and  nobody  cares  who  is  elected  or  v/ho  holds  the  office.  If  we  can 
put  such  power  in  the  hands  of  the  mayor  as  to  induce  us  to  make  an  earnest  fight  to 
have  a  capable  man  elected,  who  will  have  some  responsibilities  and  some  powers  that 
may  be  injurious  to  us,  we  will  get  a  bette it' system  of  municipal  government  in  the 
State.  I,  therefore,  ask  that  the  amendment  offered  by  the  gentleman  from  Lynchburg 
(Mr.  Glass)  be  not  adopted,  but  that  it  be  left  to  the  Legislature  to  decide  whether 
the  appointment  shall  be  maue  by  the  mayor  of  the  city  or  by  one  of  the  city  judges. 

Mr.  Gillespie:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  do-  not  think  this 
amendment  ought  to  be  adopted  as  suggested.  At  least,  I  do  not  think  it  would  be  fair 
dealing  with  the  counties  to  adopt  the  amendment  proposed  by  the  gentleman  from 
the  city  of  Richmond  (Mr.  Meredith). 

In  the  report  of  the  Committee  on  County  Organization  it  is  provided  that  the 
commissioners  of  the  revenue  shall  be  appointed  in  a  manner  to  be  prescribed  by  law, 
not  limiting  that  appointment  to  any  local  power  within  the  county.  I  think  that  limita- 
tion should  have  been  made  in  the  report  on  county  organization,  but  it  was  not  done. 
The  power  wasi  left  to  the  Legislature,  unlimited,  that  the  commissioners  of  the  revenue 
may  be  appointed  in  any  m,anner  prescribed  by  law.  They  may  be  appointed  by  a  com- 
mittee from  the  central  power  here  in  Richmond. 

The  gentleman  representing  the  cities  desire  to  be  relieved  from  the  general  super- 
vision which  was  to  apply  to  counties  and  to  have  it  provided  that  the  commissioners 
of  the  revenue  shall  be  appointed  by  some  local  power.  It  has  been  complained  that 
there  has  been  favoritism  toward  the  cities,  and  thisi  looks  to  me  more  like  it  than 
anything  which  has  yet  been  suggested.    I  do  not  think  the  amendment  should  be  adopted. 

Mr.  Meredith:  Mr.  Chairman,  I  have  not  desired  to  ask  for  any  favoritism.  If  my 
attention  had  been  called  to  the  fact  that  it  v/as  desired  that  the  county  officers  should 
be  elected  or  appointed  by  some  local  authority,  I  should  not  have  hestitated  to  vote 
for  it.  I  think  it  was  not  understood,  when  the  provision  was  passed,  that  it  was 
desired  by  the  counties.  If  any  return  is  made  to  that  provision  I  shall  vote  to  recognize 
local  government  in  the  counties  just  as  well  as  in  the  cities. 

Mr.  Glass:  Mr.  Chairman,  it  occurs  to  me  that  the  point  made  by  the  delegate 
from  Tazewell  (Mr.  Gillespie)  is  not  exactly  fair  to  the  cities.  I  voted  to  appoint  or 
elect  the  commissioners  of  the  revenue  of  the  various  counties  of  the  Commonwealth 
because  the  representatives  here  of  the  counties  asked  to  have  it  done.  As  I  understood 
the  matter  they  preferred  that  arrangement.  Now,  as  to  the  cities,  the  delegate  from 
Richmond  (Mr.  Meredith)  and  I  are  after  the  same  object;  but,  I  respectfully  submit, 
my  amendment  will  more  certainly  attain  that  object  than  the  amendment  proposed  by 
him.  There  is  very  little  difference  between  electing  the  commissioner  of  the  revenue 
by  direct  vote  of  the  people  and  having  him  appointed  by  another  city  officer  who  is 
elected  by  direct  vote  of  the  people. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


1913 


If  you  make  the  office  of  the  commissioner  of  the  revenue  appointive  by  the  mayor 
of  the  town,  in  every  municipal  election  we  would  have  the  issue  as  to  whom  the 
various  candidates  for  mayor  will  favor  for  commissioner  of  the  revenue,  and  you  will 
find  that  influential  politicians  who  are  candidates  for  the  office  of  commissioner  of 
the  revenue  will  line  up  for  this  candidate  or  that  for  mayor,  selecting  the  one,  of  course, 
who  would  most  likely  appoint  him  to  the  position  of  commissioner  of  the  revenue.  I 
hold  if  there  is  an  officer  in  the  Commonwealth  who  ought  not  to  be  elected,  but  ought 
to  be  appointed,  it  is  the  commissioner  of  the  revenue,  whether  in  the  counties  or  in 
the  cities. 

To  better  illustrate  the  importance  of  this  office,  and  the  necessity  of  having  a 
competent  and  fearless  man  toi  discharge  its  duties,  I  will  state  some  significant  facts, 
for  the  authenticity  of  which  I  refer  gentlemen  to  the  report  of  the  State  Auditor.  The 
city  of  Norfolk  and  the  city  of  Roanoke  combined  claim;  to  have,  if  the  census  does  not 
give  them,  76,000  population,  and  yet — now  mark  you — the  city  of  Lynchburg  with, 
20,000  inhabitants,  returns  more  personal  effects  for  taxation  than  the  cities  of  Norfolk 
and  Roanoke  combined. 

The  city  of  Lynchburg,  with  20,000  population,  returns  $68,000  more  of  money  in 
banks  on  certificates  of  deposit  for  taxation  than  the  cities  of  Roanoke,  Norfolk,  Ports- 
mouth, Petersburg  and  Newport  News  combined.  The  city  of  Lynchburg  returns  for 
taxation  in  money  invested  in  corporate  business  enterprises  more  than,  those  five  cities 
just  named  combined. 

Mr.  Robertson:  Is  it  not  a  fact  that  Lynchburg  is  said  to  be  the  richest  place  in 
the  United  States  for  the  population  it  has? 

Mr.  Glass:  I  suppose  it  isi  said  so  for  the  reason  that  Lynchburg  returns  so  much 
more  wealth  for  taxation  than  other  cities  of  like  size.  (Laughter.) 

Mr.  Robertson:    Is  it  not  a  fact,  though? 

Mr.  Glass:  I  will  answer  my  friend  in  a  perfectly  frank  way.  I  think,  perhaps, 
Lynchburg,  per  capita,  is  the  wealthiest  city  in  the  South;  but  I  do  not  believe  the  20,000 
people  in  Lynchburg  are  wealthier  than  the  76,000  people  in  Norfolk  and  Roanoke  com- 
bined. 

What  I  am  trying  to  accomplish  is  that  we  may  at  least  retain  our  good  officer  in 
Lynchburg,  and  that  you  may  not  adopt  a  system  here  of  election  by  the  people  in  the 
cities  and  then  say  the  man  who  was  fearlessly  and  efficiently  done  his  duty  shall  be 
ineligible  to  reelection.  I  think  if  all  the  commissioners  of  the  revenue  in  these  other  cities 
mentioned  were  appointed  perhaps  they  would  be  better  officers  than  they  are  now. 
What  I  mean  is  this:  They  would  have  less  temptation  to  temporize  with  people  who) 
show  a  disposition  to  evade  taxation. 

Mr.  Meredith:  I  desire  to  say  to  the  gentleman  from  Lynchburg  (Mr.  Glass), 
before  he  takes  his  seat,  that  I  regard  the  appointment  of  the  commissioner  of  the 
revenue  as  so  important  that,  rather  than  let  it  fall  by  reason  of  any  theoretical  idea 
I  have  of  appointment  by  the  mayor,  I  will  gladly  accept  the  suggestion  of  the  gentle- 
man from  Lynchburg  that  the  commissioner  of  the  revenue  shall  be  appointed  by  the 
court,  so  as  to  make  him  a  State  officer. 

Mr.  Barbour:  Mr.  President,  I  hope  none  of  the  pending  amendments  may  prevail. 
It  was  the  effort  of  the  Committee  on  the  Organization  and  Government  of  Cities  and 
Towns  to  make  this  provision  coincide  with  the  provision  adopted  by  the  Convention 
in  the  report  of  the  Committee  on  County  Organization.  The  commissioner  of  the 
revenue  is  essentially  a  State  officer,  and  carries  out  the  policy  of  the  State  in  reference 
to  taxation.  When  this  article  was  drawn  the  report  of  the  Committee  on  Counties 
provided  for  the  appointment  of  these  commissioners  of  the  revenue  in  a  manner  to 
be  provided  by  law.  Afterwards  the  report  came  up  in  the  Convention  and  the  language 
was  so  changed  as  to  provide  for  their  election  or  their  appointment,  with  the  provision 
that  should  they  be  elected  they  should  not  be  eligible  for  re-election  to  the  same  office. 

It  seems  to  me  the  amendment  offered  by  the  gentleman  from  Richmond  (Mr. 
Meredith)  deprives  the  system  of  a  proper  elasticity.    It  only  provides  for  two  modes 
121— Const.  Deb. 


1914 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


of  appointment,  either  by  the  mayor  or  by  the  judges  of  one  of  the  courts.  Certainly 
I  do  not  think  the  appointment  of  these  officers  by  the  judge  of  a  court  is  a  wise  pro- 
vision. I  think,  if  there  is  any  one  thing  that  is  responsible  for  the  downfall  of  the 
county  court  system,  it  is  the  putting  of  political  patronage  into  the  hands  of  the  county 
court  judges.  Under  our  new  system  I  want  tO'  see  our  judges  absolutely  divorced 
from  all  control  of  political  patronage.  I  do  not  think  it  would  always  be  wise  to  put 
the  appointment  of  this  officer  in  the  hands  of  the  mayor  of  a  city,  elected  by  the 
voters  of  the  city,  for  the  very  reasons  stated  by  the  gentleman  from  Lynchburg  (Mr. 
Glass.) 

Mr.  Meredith:  The  gentleman  understands  I  have  accepted  the  amendment  of  the 
gentleman  from  Lynchburg  to  leave  out  the  appointment  by  the  mayor. 

Mr.  Barbour:  I  did  not  know  the  gnetleman  had  accepted  that  amendment.  That, 
then,  leaves  the  appointment  of  these  officers  in  the  hands  of  the  judges  of  the  courts. 
I  do  not  think  we  ought  to  mix  up  the  judiciary  of  the  State  with  the  control  of  political 
patronage. 

I  will  not  restate  to  the  committee  the  reasons  I  have  just  asisigned  for  that.  I 
think  throughout  the  State  there  should  be  a  uniform  system  of  appointment  of  these 
officers,  who  have  to  assess  property  throughout  the  State,  leaving  it  in  the  power  of  the 
Legislature  to  provide  for  their  appointment  in  a  uniform  manner,  and  not,  if  the  sys- 
tem of  appointment  by  judges  in  cities  works,  badly,  to  have  commissioners  of  the 
revenue  appointed  by  the  judges  able  tO'  snap  their  fingers  in  our  faces  and  tell  us  they 
are  protected  by  constitutional  amendment  from  removal  or  change  in  the  manner  of 
appointment,  whereas  the  mode  of  appointment  in  the  counties  could  be  changed. 

I  hope  that  these  amendments  will  be  voted  down,  and  the  article  made  to  conform 
in  exact  terms  to  the  language  now  contained  in  the  article  for  the  government  of 
counties. 

The  Chairman:  The  amendment  of  the  gentleman  from  Lynchburg  (Mr.  Glass) 
has  been  accepted  by  the  gentleman  from  Richmond  (Mr.  Meredith).  The  question  is 
on  the  proposed  substitute  of  the  gentleman  from  Richmond  (Mr.  Meredith),  as  modified 
by  that  amendment,  to  the  amendment  of  the  gentleman  from  Richmond  (Mr.  Allen). 

The  amendment  was  rejected. 

The  Chairman:  The  question  recurs  on  the  amendment  proposed  by  the  gentle- 
man from  Richmond  (Mr.  Allen.) 

Mr.  Barbour:  Mr.  Chairman,  ±  offer  now,  as  a  substitute  for  the  amendment  offered 
by  the  gentleman  from  Richmond  (Mr.  Allen),  the  following  amendment:  After  the 
word  "be, '  in  line  8,  insert  "elected  or,"  and  at  the  end  of  line  12  insert  the  following 
language:  "But  should  such  commissioner  of  the  revenue  be  chosen  by  election  by  the 
people,  then  he  shall  be  ineligible  for  re-election  to  the  office  for  the  next  ensuing 
term." 

I  wish  to  state  to  the  Convention  that  if  that  substitute  is  adopted  the  provision 
for  the  cities  will  be  in  the  exact  language  which  is  now  provided  for  the  counties,  and 
it  has  been  the  effort  of  the  Committee  on  the  Organization  and  Government  of  Cities 
and  Towns  from  the  beginning  to  make  the  two  provisions  conform  throughout. 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  33;  noes,  24. 

Mr.  Davis  offered  the  following  substitute: 

In  every  city  there  shall  be  elected  one  commissioner  of  the  revenue,  whose  duties 
and  compensation  shall  be  such  as  may  be  prescribed  by  law,  and  who  shall  hold  his 
office  for  a  term  of  four  years. 

Mr.  Davis:  Mr.  Chairman,  when  the  question  of  the  election  or  appointment  of 
commissioners  of  the  revfenue  came  up  I  was  not  here.  I  was  sick  and  in  bed.  I  desire 
very  much  that  commissioners  of  the  revenue  shall  be  elected  by  the  people  all  over  the 
State,  in  the  cities  as  well  as,  in  the  counties,  and  especially  in  the  counties.  I  desire, 
if  it  can  be  done  at  some  future  time,  to  bring  this  matter  before  the  Convention  again, 


DEBATES  OF  THE  CO^s^STITUTIOITAL  COXYEXTIOX  OF  YIEGmiA. 


1915 


so  that  this  important  matter  may  be  settled  and  settled  right,  and  that  the  people  in 
the  counties,  as  well  as  in  the  cities,  may  elect  commissioners  of  the  reyenue. 

Mr.  Harrison:  I  wish  to  amend  by  adding,  after  the  word  "elected,"  the  ^yords 
"by  the  qualified  voters  of  said  city." 

]Mr.  Davis:    I  accept  that. 

Mr.  Harrison:  Mr.  Chairman,  it  does  seem  to  me  that  in  cities,  especially,  these 
officers  ought  to  be  elected  by  the  people.  It  is  in  the  cities  where  there  is  the  greatest 
complaint  about  the  tax  dodgers.  It  is.  in  the  cities  where  this  invisible  property  is 
located  far  in  excess  of  the  amount  in  the  counties.  A  few  people  own  a  great  deal  of 
the  wealth  of  the  cities,  and  they  are  the  people  who  generally  seek  to  dodge  the 
payment  of  the  taxes  on  that  species  of  property  which  the  commissioner  of  the  revenue 
cannot  find.  It  would  be  very  easy  for  the  people  of  great  wealth  to  influence  a  com- 
missioner of  the  revenue,  if  they  were  alone  to  be  dealt  with,  and  it  does  seem  to  me 
that  the  people  of  the  cities  should  have  the  power — 

Mr.  Barbour:  The  gentleman  has  just  said  that  in  the  cities  there  was  more  com- 
plaint about  tax  dodging. 

Mr.  Harrison:  I  say  that  is  where  the  great  complaint  is  about  it.  Commissioners 
of  the  revenue  cannot  get  at  that  species  of  property;  but  I  do  not  believe  we  are  going 
to  improve  the  matter  by  making  them  appointive  by  any  one  agency,  because  the 
great  wealth  that  has  accumulated  in  the  cities  can  influence  the  appointing  power  far 
more  easily  than  it  could  influence  the  people  who  have  the  power  of  electing  these 
officers.  If  it  becomes  injurious  to  the  people  of  a  city,  and  men  of  wealth  are  permitted 
to  dodge  their  just  responsibilities  to  the  State,  then  I  believe  it  would  be  within  the' 
power  of  the  people  of  that  city  to  turn  a  faithless  commissioner  of  the  revenue  out 
of  office,  and  I  think  that  officer  certainly  should  be  elected  by  the  people,  in  order  to 
control  just  such  a  condition  of  affairs. 

Mr.  Thom:  Mr.  Chairman,  I  do  not  rise  to  discuss  this  question,  but  I  feel  that  the 
inferences  that  were  drawn  by  my  friend  from  Lj-nchburg  (Mr.  Glass),  as  to  the  respec- 
tive assessments  of  personal  property,  should  not  go  without  a  word  of  explanation  from 
me,  so  far  as  the  city  of  Norfolk  is  concerned. 

The  table  from  which  he  read  shows  that  the  total  value  of  assessments  in  Lynch- 
burg of  personal  property  were,  in  round  numbers  $4,077,000,  and  in  the  city  of  Norfolk 
$3,546,000.  In  the  matter  of  the  assessment  of  bonds  in  Lynchburg  there  were  $917,000, 
and  in  the  city  of  Norfolk  $958,000  in  the  matter  of  moneys  under  the  control  of  courts 
in  Lynchburg,  $743,000,  and  in  Norfolk  $1,139,000. 

The  principal  difference  between  the  two  was  in  the  value  of  capital  invested  in  joint 
stock  companies,  not  otherwise  taxed,  of  which  Lynchburg  had  S  558,000  and  Norfolk  $17,320 
Of  course,  I  am  not  aware,  on  this  short  notice  what  exceptional  conditions  may  exist 
in  Lynchburg  in  reference  to  these  stock  companies.  I  know  the  fact,  however,  tha+ 
the  personal  property  in  the  city  of  Norfolk  does  not  compare  with  its  real  estate.  Lynch- 
burg real  estate  is  only  $7,000,000.  The  amount  invested  in  Norfolk  city  real  estate  is 
over  $21,000,000.  The  assessments  there  of  real  estate  are  immense.  I  know  it  is  an 
exceedingly  popular  method  of  investment.  I  have  never  heard  any  complaints  of  the 
commissioner  of  the  revenue  in  the  city  of  Norfolk,  and  I  believe  him  to  be  a  faithful 
and  efficient  officer. 

Mr.  Braxton:  Mr.  Chairman,  In  this  connection  I  desire  to  say,  on  behalf  of  the 
city  of  Staunton,  which  I  have  the  honor  to  represent  in  part,  that  there  is  no  occasion 
for  criticism  on  the  efficiency  of  the  work  of  the  commissioner  of  the  revenue  there. 
Staunton  is  reported  to  have  a  population  of  about  7,300.  Roanoke,  for  instance,  is 
reported  to  have  a  population  of.  I  think,  in  the  neighborhood  of  25,000. 

For  the  year  1901  the  personal  assessment  of  Staunton  was  $938,000,  as  against 
$948,000  in  Roanoke,  with  more  than  three  times  the  population  of  Staunton.  For  the 
year  1900  the  personal  assessment  of  Staunton  was  some  $50,000  more  than  Roanoke. 

The  city  of  Newport  News,  I  believe,  is  reported  as  having  some  23,000  population, 
and  yet  her  total  assessment  is  $435,000,  as  against  $922,000  for  Staunton,  with  less 


1916 


DEBATES  OF  THE  COJsTSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


than  one-third  the  population  of  Newport  News.  Without  going  further  intO'  detail,  I 
will  say  that  the  auditor's  report  for  Ibxjx  shows  that  the  cities  of  Bristol,  Buena  Vista, 
Charlottesville,  Fredericksburg,  Manchester,  Newport  News,  Portsmouth,  Radford,  Wil- 
liamsburg and  Winchester  have  all  very  much  smaller  assessments  than  Staunton — 
not  only  smaller  in  the  aggregate,  but  vastly  lower  per  capita,  and  that  only  Richmond, 
Petersburg,  Norfolk,  Lynchburg  and  Danville  have,  to  any  appreciable  extent,  a  larger 
personal  assessment  than  Staunton.  The  only  two  other  cities  who  exceed  Staunton  at 
all  in  her  personal  assessment  are  Alexandria,  which  returns  $993,000  as  against  Staun- 
ton's $938,000,  and  Roanoke,  which  returns  $948,000  against  Staunton's  $938,000. 

I  do  not  say  this  in  criticism  of  those  cities  which  report  a  less  taxation  than 
Staunton,  but  merely  to  show  that  the  criticism  which  some  of  the  gentlemen  pass 
upon  the  efficiency  of  the  performance  of  their  duties  by  the  commissioners  of  the 
revenue  in  various  cities  of  tne  ^^Site  is  not  without  exception;  and  whatever  may  be 
the  justice  of  the  criticism  of  these  officers  elsewhere,  I  think  it  but  fair  and  proper 
that  I  should  call  the  attention  of  the  committee  to  these  figures  to  show  that  in  Staun- 
ton, at  least,  the  commissioner  of  the  revenue,  who  has  been  eiected  by  the  people,  has 
perfoTmed  the  duties  of  his.  office  in  an  efficient  and  satisfactory  manner  as  well  to  the 
State  as  to  the  city. 

Mr.  Robertson:  Mr.  Chairman,  I  had  not  intended  to  say  a  word  about  this  matter, 
because  it  does  seem  to  me  this  question  ought  to  be  settled  entirely  apart  from  any 
rivalry  between  the  cities  of  the  commonwealth.  The  idea  of  talking  about  whether  we 
have  a  good  commissioner  of  the  revenue  in  one  city  and  a  bad  one  in  another,  strikes 
me  as  one  of  the  most  childest  performances  I  ever  heard  of  (Laughter),  for  the  simple 
reason  that  in  the  next  election  the  whole  matter  may  be  changed  around  and  the  city 
that  has  a  good  commissioner  of  the  revenue  now  may  have  a  bad  one  and  vice  versa. 

The  only  reason  I  have  risen  to  my  feet  at  all  is  that  several  gentlemen  on  the  . 
floor  seem  to  think  it  is  necessary  to  drag  in  the  city  that  I,  in  part,  represent  as  a 
sort  of  general  example  of  corruption  and  of  bad  administration.  I  respectfully  submit 
to  the  Convention  that  the  gentleman  who  talk  so  glibly  about  my  city  do  not  know 
anything  about  it.  (Laughter.)  The  city  of  Roanoke  has  grown  to  its  present  propor- 
tions largely  by  the  industry  and  the  hard  work  of  the  laboring  men  of  that  city.  We 
have  no  large  accumlated  wealth  in  our  city,  no  large  incomes,  but  it  is  made  up  of 
laboring  men — men  who  are  making  things  that  are  useful  for  the  rest  of  the  people  in 
the  Commonwealth.  It  is  as  much  as  most  of  them  can  do-  to-  live  upon  the  small 
incomes  they  make. 

Any  criticism,  which  is  made  upon  that  city,  which  twenty  years  ago  did  not  exist 
at  all,  in  comparison  with  the  citj^  of  Lynchburg,  for  instance,  or  the  city  of  Staunton, 
is  totally  unjust.  Those  are  old  communities,  where  men  are  sitting  back  making 
money  and  getting  large  incomes;  by  lending  money  at  usurious  interest  to  other  people. 
(Laughter.)  The  people  of  our  city  are  doing  work,  and  honest  work,  and  earning  their 
living  by  the  sweat  of  their  brow,  and  I  protest  against  its  being  criticised  here  or 
compared  or  contrasted  with  any  city  in  the  Commonwealth.  (Applause.) 

Mr.  Glass :  Mr.  Chairman,  I  would  not  rise  again  except  that  I  noted  the  enthusiasm 
of  my  friend  from  Norfolk  (Mr.  Thorn)  over  the  remarks  made  by  the  delegate  from 
Roanoke.  (Laughter.)  The  delegate  from  Norfolk  said  a  while  ago  the  main  difference 
between  his  city's  returns  and  mine  was  in  one  item  of  $558,000  in  the  value  of  capital 
invested  in  incorporated  companies.  I  desire  to  call  attention  to  the  fact  that  in  the 
item  of  the  value  of  all  capital  invested  in  business  not  otherwise  taxed,  the  city  of 
Lynchburg,  with  20,000  people,  returns  $473,000  and  the  city  of  Norfolk  only  $225,000. 
In  the  matter  of  money  on  deposit  with  bani^s,  returned  for  taxation,  Lynchburg  returns 
$674,000,  with  only  20,000  population,  and  Norfolk  $43,000,  with  about  50,000  population; 
and  it  is  that  way  all  through  the  list. 

Of  course,  when  it  comes  to  the  matter  of  real  estate  you  cannot  hide  that.  There 
is  bound  to  be  an  approximately  correct  valuation  given.  (Laughter.) 

Mr.  Tbom:    Mr.  Chairman,  the  difference  in  Ihe  assessment  in  Lynchburg  and 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGIXIA.  1917 

in  Norfolk  is  about  $500,000.  That  is  more  than  niade  up  in  the  one  item  of  taxes  on 
incorporated  companies. 

I  am  told,  and  my  friend  from  Lynchburg  can  correct  me  if  it  is  not  true,  that  there 
was  an  effort  on  the  part  of  Lynchburg  to  exempt  from  taxation  moneys  invested  in 
incorporated  joint  stock  companies  carrying  on  manufacturing  business.  If  that  is 
so,  and  I  am  told  it  is  so,  although  this  effort  has  failed  in  the  courts,  the  stocks  of  those 
incorporated  companies  would  become  taxable  by  individuals,  and  would  be  returnable, 
whereas  if  the  company  itself  had  not  been  exempt  from  taxation  they  would  not  have 
been  returnable  in  that  way. 

Mr.  George  K.  Anderson:  Mr.  Chairman,  just  one  minute  before  putting  the  quesr 
tion.  I  am  not  from  a  city,  sir.  Therefore,  I  am  not  very  much  interested  in  what 
these  gentlemen  claim  for  their  respective  cities;  but  I  want  to  call  the  attention  of 
the  committee  to  the  fact  that  if  the  amendment  of  my  friend  from  Franklin  (Mr.  Davis) 
is  adopted  commissioners  of  the  revenue  in  the  cities  of  the  Commonwealth  will  be 
elected  by  the  people,  and  in  the  counties  of  the  Commonwealth  they  may  be  appointed 
by  the  boards  of  supervisors),  or  they  may  be  elected  by  the  people,  and  if  they  are 
elected  by  the  people  they  cannot  serve  more  than  one  term. 

My  friend  from  Winchester  (Mr.  Harrison)  used  an  argument  which,  to  my  mind, 
is  an  argument  against  his  'position.  He  says  the  commissioners  of  the  revenue  ought 
to  be  elected  in  the  cities  so  that  large  returns  may  be  made  by  men  whO'  have  money 
hidden  away,  and  he  expects  that  a  com^missioner  of  the  revenue  who  reaches  down  and 
pulls  a  fellow  out  of  the  hole  with  his  money-bags  will  be  supported  by  that  same  man 
the  next  year.  AATiile  in  the  country  we  say  if  the  commissioner  of  the  revenue  is  to  be 
elected  by  the  people  he  must  be  ineligible,  because  if  he  assesses  some  fellow's  ninety- 
cent  pig  at  a  dollar  and  a  quarter  he  will  never  get  that  man's  vote  again.  In  the  city, 
according  to  my  friend  from  w^inchester,  if  he  hunts  up  the  hidden  wealth,  and  brings 
that  to  the  surface,  he  will  be  voted  lor  by  this  man  whom  he  has  exposed. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Franklin 
(Mr,  Davis). 

In  every  city  there  shall  be  elected  by  the  qualified  voters  of  said  city  one  com- 
missioner of  the  revenue,  whose  duties  and  compensation  shall  be  such  as  may  be 
prescribed  by  law,  and  who  shall  hold  office  for  a  term  of  four  years. 

The  amendment  was  rejected;  there  ueing,  on  a  division,  ayes,  2^;  noes,  43. 

The  Chairman:  The  acceptance  by  the  chairman  of  the  committee  of  the  amend- 
ment offered  by  the  gentleman  from  Culpeper  (Mr.  Barbour)  removes  the  neccessity  of 
putting  the  question  to  the  Committee  of  the  Whole. 

Section  6,  relating  to  municipal  officers,  was  then  read. 

Mr,  Wise:  Mr,  Chairman,  I  move  to  strike  out,  after  the  word  "years,"  in  line  3, 
down  to  the  end  of  that  clause,  so  that  it  shall  read:  "In  every  city  there  shall  be 
elected  by  the  qualified  voters  thereof  one  city  treasurer,  who  shall  serve  for  a  term  of 
four  years." 

During  the  consideration  of  the  report  on  the  Organization  and  Government  of 
Counties  thl^  question  was  fully  discussed,  and  I  do  not  propose  to  detain  the  com- 
mittee a  moment  in  repeating  the  argument  then  advanced  on  the  one  side  or  the  other. 
I  simply  wish  to  say  that  when  the  question  was  being  considered  as  to  the  counties 
I  voted  as  the  representatives  of  the  counties  desired  for  their  counties.,  I  believe  the 
representatives  of  the  cities,  certainly  of  the  large  cities,  are  all  opposed  to  the  provision 
that  treasurers  shall  not  be  re-elected  after  having  served  two  terms;  and  it  does  seem 
to  me  a  bad  proposition,  to  put  into  the  Constitution  that  the  people  of  a  city  shall 
not  be  permitted  to  re-elect  an  officer  who  has  proven  himself  both  faithful  and  efficient. 

Mr.  Allen:  Mr.  Chairman,  I  hope  the  amendment  of  my  colleague  (Mr.  Wise)  will 
prevail.  Like  him,  on  all  questions  that  have  come  up  here  w^here  the  county  interests 
were  concerned,  I  have  always  endeavored  to  find  out  from  the  countn^  members  what 


1918  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

was  best  for  the  interests  of  their  sections,  and  I  think  the  record  will  show  that  I  have 
always  voted  as  desired  by  them  on  all  questions  concerning  their  local  affairs. 

Mr.  Chairman,  this  provision  in  a  city  like  Richmond  can  do  no  good,  but  will  result 
in  great  harm.  You  could  not  get  a  man  who  ought  to  hold  the  office  of  treasurer  in 
the  city  of  Richmond  to  run  for  the  office  if  he  thought  he  would  be  turned  out  at  the 
end  of  one  term.  Furthermore,  we  have  in  the  city  of  Richmond  a  different  mode  of 
settlement  from  that  which  they  have  in  the  counties.  Our  settlements  are  made  daily. 
We  also  have  a  system  which  has  been  adopted  practically  throughout  the  State.  We 
have  a  special  accountant  who  is  required  to  make  reports  to  the  Committee  on  Finance 
of  the  condition  of  all  the  officers  of  the  city  government.  A  provision  has  been  adopted 
in  the  Constitution  appointing  traveling  commissioners,  with  the  power  to  employ  expert 
accountants  to  examine  the  books  of  the  various  officers  of  the  State.  If  that  is  done 
as  often  as  it  should  be  you  will  find  that  it  is  not  necessary  for  your  treasurers  to  be 
turned  out  at  the  end  of  every  four  years,  in  order  to  get  a  proper  settlement. 

Mr.  Chairman,  I  appeal  to  the  members  from  the  rural  districts  to  let  this  pro- 
vision, as  proposed  by  my  colleague,  be  adopted. 

Mr.  Hamilton:  Mr.  Chairman,  when  thlsi  matter  came  up,  with  respect  to  the  elec- 
tion of  treasurers  in  the  counties,  I  opposed  the  ineligibility  feature.  I  did  not  think 
it  was  right  or  proper.  I  do  not  think  it  is  right  or  proper  with  respect  to  the  cities.  I 
gave  my  reasons  then,  and  I  will  venture  to  give  them  again. 

There  is  no  trouble  about  making  a  treasurer  do  his  duty  or  account  for  public 
moneys  if  you  take  proper  steps  to  make  him  keep  his  accountsi  straight.  There  will  be 
no  trouble  if  you  have  an  accountant,  as  provided  by  the  Convention,  examine  those  ac- 
counts. Ill  addition  to  that,  in  the  cities,  certainly  in  my  own  city,  under  special  statute, 
you  require  the  city  treasurer  to  pay  the  city  funds  over  once  a  week  to  the  treasurer 
of  the  State  or  the  first  auditor,  and  the  city  funds  are  desposited  every  day  in  the  city 
depository,  a  bank  designated  by  the  common  council. 

When  you  get  a  really  first-rate  officer  it  is  rather  a  serious  matter  to  say  he  shall 
serve  but  a  limited  time.  I  hope,  very  much,  gentlemen  will  not  insist  on  the  ineligibility 
feature  as  to  treasurers  applying  in  the  cities.  I  regret  it  has  been  passed  to  apply 
to  the  counties.  I  know  of  certainly  two  county  treasurers  in  my  section  of  the  State 
who  are  wonderfully  faithful  and  efficient,  and  I  do  not  believe  the  people  of  those 
counties  will  be  able  to  replace  them  if  a  provision  is  adopted  making  them  ineligible 
for  a  second  term. 

Mr.  Ingram:  Mr.  Chairman,  my  position  is  exactly  similar  to  that  of  the  gentle- 
man from  Petersburg  (Mr.  Hamilton).  I  did  not  take  any  stock  in  the  doctrine  of 
Ineligibility  of  officials  who  have  performed  faithfully  the  duties  of  their  respective 
officers.  When  the  matter  was  up,  as  to  county  treasurers,  I  voted  against  the  ineligi- 
bility feature,  and  I  hope  the  qualified  voters  of  the  citiesi  will  be  allowed,  if  they  have 
an  efficient  officer  who  discharges  faithfully  the  duties  of  his  office,  to  re-elect  him  for 
more  than  two  years,  and  for  as  many  terms  as  they  may  see  fit. 

The  whole  principle,  in  my  judgment,  is  unsound.  I  believe  in  rotation  in  public 
office,  but  I  think  the  rotation  should  come  at  the  instance  the  people  and  not  by  virtue 
of  any  hard  and  fast  rule  put  in  the  organic  law. 

The  books  of  the  city  treasurers  are  examined  by  experta  at  stated  intervals,  and 
in  addition  to  that  we  have  provided,  in  the  article  on  county  governments,  that  the 
State  shall  employ  certain  accountants  to  overlook  the  books  and  records  of  all  State, 
county  and  city  officers.  I  do  hope  the  amendment  of  the  gentleman  from  Richmond 
(Mr.  Wise)  will  prevail. 

Mr.  Meredith:  Mr.  Chairman,  in  regard  to  this  provision,  «s  to  city  treasurers, 
I  feel  the  embarrassment  that  the  rest  of  the  representatives  of  cities  feel,  that  we 
have  to  overcome  what  is  true,  as  a  general  proposition,  that  what  is  good  for  the 
county  is  good  for  the  city.  I  know  what  lies  across  our  path.  I  recognize  it  as  a 
general  principle,  but  if  we  can  show  you  exceptional  circumstances  that  will  not 


DEBATES  OE  THE  COXSTITUTIO^'AL  COXVEXTIOX  OE  VIEGIXIA. 


1919 


Justify  the  application  of  a  general  principle,  I  simply  ask  you  not  to  be  bound  by  a 
principle,  because  it  is  a  general  principle,  and  require  that  it  snail  be  applied 
erroneously. 

I  repeat,  I  recognize  tlie  general  principle,  but  I  simply  ask  you  to  look  one  moment 
at  TTlietlier  tbe  application  of  the  general  principle  vrill  nut  be  injurious  instead  of 
beneficial. 

I  think  ever  one  of  us  will  acknowledge  that,  unless  there  is  some  great  good  reason 
for  it,  the  principle  of  ineligibility  of  re-election  to  office  is  a  wrong  one,  and  it  is  only 
because  of  the  necessity  that  exists  that  we  have  provided  it  shall  apply. 

Mr.  Lindsay:  Is  not  the  principle  recognized  in  every  State  Constitution  as  to 
sheriffs?  ]\Iy  investigation  of  the  subject  has  led  me  to  the  conclusion  that  the  States 
of  the  Union, with  very  few  exceptions,  reco:gnize  it  as  a  principle  and  a  precedent  that 
those  who  collect  taxes  or  handle  moneys  shall  be  ineligible  to* re-election,  many  of 
them  after  the  first  term,  and  very  many  after  the  second  term.  I  think  it  has  been 
recognized  as  a  principle,  and  the  burden  of  proof  is  upon  the  other  side  to  show  when 
it  is  wisest  not  to  apply  the  principle. 

Mr.  Braxton:  I  ask  for  infonnation.  In  those  States  which  observe  the  principle 
you  have  just  stated,  do  you  recall  whether  the  officers  are  elected  or  appointed? 

Mr.  i^indsay:    They  are  elected  by  the  people. 

Mr.  Braxton:    And  they  become  ineligible  for  re-election  after  the  first  term? 
Mr.  Lindsay:    Yes;  many  of  them. 

Mr.  Meredith:  Mr.  Chairman,  I  am  not  denjung  the  general  principle  is  recognized 
in  the  Constitutions  of  the  States.  I  am  simply  asking  you,  if  I  can  show  you  that' no 
good  can  come  from  the  application  of  the  principle,  not  to  apply  it.  You  certainly 
will  not  apply  it  if  harm  can  come  from  its  application.  If  I  can  show  you  that  the 
circumstances  are  such  that  it  will  not  be  beneficial  to  the  cities,  but  can  hurt  them, 
there  can  be  no  reason  why  it  should  be  applied  to  us. 

It  has  been  stated  on  this  floor  that  the  reason  the  counties  insist  on  the  proAusion  is 
that  they  cannot  get  proper  settlements  from  the  treasurers:  that  the  treasurers  can  so 
use  their  bank  accounts,  shifting  balances  from  one  account  to  another,  that  they  can 
deceive  boards  of  supervisors  in  any  settlements  they  may  make,  and  that  the  only 
remedy  is  to  require  that  they  shall  go  out  of  office  at  a  certain  time.  I  appeal  to 
gentlemen  on  this  floor  if  that  has  not  been  the  basis  of  all  the  claim  of  necessity  for 
ineligibility  to  re-election. 

It  has  not  been  upon  the  ground  that  the  provision  is  contained  in  other  Constitu- 
tions, but  upon  the  ground  that  a  proper  settlement  cannot  be  obtained  from  the  treas- 
urers because  of  the  manner  in  which  they  can  manipulate  the  different  funds  they  have, 
the  county  funds,  the  school  district  funds  and  the  State  funds;  that  they  can  change 
their  balances  in  bank  from  one  fund  to  another  so  as  to  deceive  the  board  of  super- 
visors, and  that  a  proper  settlement  cannot  be  obtained. 

That  is  the  whole  argument  that  has  been  adduced  here  on  the  question  of  ineligi- 
bility for  re-election.  Now,  gentlemen,  if  that  reason  for  the  adoption  of  this  provision 
as  to  county  treasurers  does  not  exist  in  the  cities,  why  should  you  put  upon  us  a 
requirement  which  will  be  injurious  to  us?  If  any  gentleman  can  offer  any  reason  that 
has  been  stated  on  this  floor,  except  the  one  I  have  referred  to,  that  their  power  of 
manipulation  of  the  funds  in  their  possession  is  so  great  that  they  can  deceive  the 
board  of  super-^isors,  and,  therefore,  can  carry  on  a  defalcation  for  3-ears,  I  should  like 
to  hear  it. 

Mr.  Summers:    The  people  in  my  county  do  not  agree  with  you. 

:\Ir.  ]\Ieredith:  I  am  not  speaking  of  your  county.  I  am  attempting  to  show  the 
difference  between  my  county  and  yours,  I  recognize  the  danger  of  continued  service 
in  3"our  country;  but  ii  the  reason  you  offer  does  not  exist  with  us,  gentlemen,  I  ask 
you  again,  why  should  you  put  upon  us  tlie  inconvenience  and  burden  of  having  these 
treasurers  turned  out  when  it  is  injurious  to  us,  when  we  have  recognized  in  the  city 
of  Richmond  the  desirability  of  re-electing  these  officers  to  such  an  extent  that  we  have 
only  elected  three  since  1S70. 


1920 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA, 


The  treasurer  of  the  city  of  Richmond,  gentlemen,  does  not  collect  our  taxes.  They 
are  collected  by  our  city  collector.  He  is  more  a  fiscal  agent  and  more  a  check  upon 
the  auditor  than  anything  else.  We  require  that  the  auditor's  draft  upon  the  city  treas- 
urer shall  go  into  the  treasurer's  ofiice,  and  that  the  treasurer  shall  say  upon  which 
bank  it  shall  be  drawn. 

Mr.  George  K.  Anderson:    Who  collects  the  poll-taxes  for  the  State  in  the  city? 

Mr.  Meredith:  I  am  coming  to  that.  I  shall  not  avoid  anything  of  that  kind.  I 
recognize  the  fact  that  poll-taxes  have  not  been  collected  as  they  should  have  been, 
but  the  proposed  change  is  not  going  to  result  in  improving  that  condition  of  affairs. 

I  am  calling  attention  to  the  fact  that  the  treasurer  of  the  city  of  Richmond  does 
not  collect  our  city  taxes.  He  collects  the  State  taxes;  and  we  do  not  have  in  the 
city  of  Richmond  and  in  other  cities  the  same  system  of  settlement  that  you  have  in 
the  counties,  and  that  is  the  reason  for  the  difference.  There  has  been  no  defalcation, 
no  shifting  of  accounts  in  banks.,  no  manipulation  of  the  funds,  and  it  is  simply  be- 
cause the  system  of  settlement  is  not  the  same  in  the  cities  as  in  the  counties,  where 
the  boards  of  supervisors  decide  what  tax  bills  shall  be  regarded  as  delinquent  and 
what  shall  not.  The  whole  evil  of  the  system  in  the  counties  has  been  that  you  have 
not  by  law  required  an  accounting  of  the  collection  of  moneys  and  as  to  delinquent 
tax  bills.  If  you  make  that  requirement  you  will  get  a  better  return  as  to  poll-taxes 
and  other  taxes. 

Mr.  Eggleston:  Has  it  been  any  trouble  in  the  city  of  Richmond  to  get  the  capita- 
tion taxes  collected? 

Mr.  Meredith:  The  gentleman  from  Alleghany  (Mr.  Anderson)  asked  me  that. 
I  say  there  has  been  that  evil,  and  I  recognize  it.  We  have  not  collected  the  capita- 
tion taxes,  but  it  has  not  been  because  we  allowed  the  treasurer  to  remain  in  ofRce; 
it  has  not  been  bcause  of  defalcation.  The  city  treasurer  is  not  required  to  show  that 
this  man  is  delinquent  and  that  he  has  not  collected  that  tax  bill,  as  is  required  of 
treasurers  in  the  counties.  The  reason  there  has  been  no  defalcation  on  the  part  of 
the  city  treasurer  is  because  he  makes  his  returns  oftener,  and  the  funds  cannot  be 
manipulated  as  they  are  said  to  be  manipulated  in  the  counties. 

Mr.  Lindsay:  Do  you  not  believe  that  if  the  term  of  office  were  one  year  instead 
of  two  years,  and  the  officers  were  made  ineligible  for  re-election,  there  would  be  more 
capitation  taxes  collected? 

Mr.  Meredith:  No;  and  I  think  I  can  show  you  why  not.  The  city  treasurers 
collect  large  sums  of  money  and  collect  them  very  rapidly.  There  are  large  tax  bills 
in  their  hands.  The  sources  of  revenue  under  their  control  produce  large  tax  bills, 
and,  together  with  the  amount  they  get  from  their  duties  as  city  treasures,  they  receive 
an  income  which  relieves  them  of  necessity  of  pushing  the  small  tax  bills. 

It  is  not  the  matter  of  remaining  in  office  which  effects  the  question.  It  is  the 
system  of  causing  them  to  make  proper  settlement.  Suppose  you  make  the  treasurer 
ineligible  for  re-election.  We  have  recognized  in  the  city  of  Richmond  the  ability  and 
honesty  of  these  treasurers,  and  we  have  only  elected  three  since  the  war.  You  pro- 
pose that  we  shall  not  re-elect  these  men.  What  is  going  to  be  the  evil?  We  are  going 
to  get  a  class  of  men  who  may,  perhaps,  not  be  as  honest  as  those  we  have  had  hereto- 
fore, men  who  have  discharged  their  duty  and  given  satisfaction  to  the  city.  You  pro- 
pose to  say  to  these  men,  without  any  necessity  for  it,  without  any  benefit  to  be  derived 
from  it,  that  they  shall  not  be  eligible  for  re-election.  If  you  can  show  me  any  benefit, 
I  am  willing  to  yield.  We  have  no  right  to  ask  that  you  shall  give  us  anything  in  the 
cities  which  you  do  not  get  in  the  counties;  but  I  am  showing  you  that  the  same  things 
which  induced  you  to  adopt  this  principle  as  to  the  counties  do  not  exist  in  the  cities. 

For  these  reasons  I  ask  that  the  principle  of  enligibility  of  re-election  be  not  applied 
to  the  cities,  where  the  necessity  for  its  application  does  not  exist. 

Mr.  R.  Walton  Moore:  Mr.  Chairman,!  do  not  think  there  ought  to  be  any  distinc- 
tion between  the  cities  and  the  counties  respecting  this  matter,  but  I  intend  to  support 
the  amendment  offered  by  the  gentleman  from  Richmond  (Mr.  Meredith),  and  to  support 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


1921 


it  .with  the  notice  that  an  effort  will  be  made  by  some  of  the  county  members  here  to 
strike  out  the  ineligibility  feature  as  to  the  counties,  heretofore  adopted. 

Mr.  Claggett  B.  Jones:  Suppose  you  let  it  all  come  up  at  the  same  time.  If  you 
get  this  matter  settled  upon  cities  there  is  no  telling  where  we  will  land  in  the  counties. 
I  do  not  want  to  interrupt  the  gentleman  further  than  to  say  this:  The  gentleman 
from  Richmond  (Air.  ]^Ieredith)  speaks  of  the  treasures  of  the  cities.  We  have  had 
but  one  treasurer  in  the  county  which  I  have  the  honor  to  represent  since  the  office 
was  created.  In  Richmond  they  have  had  three.  We  have  never  had  but  the  one,  and 
we  have  never  had  the  slightest  trouble  with  the  finances  of  our  county. 

I  will  be  very  glad,  indeed,  to  vote  for  the  cities,  provided  you  will  let  that  matter 
stand  in  abeyance  until  the  question  is  reconsidered  as  to  the  cotmties. 

Mr.  R.  Walton  Moore:  I  cannot  control  the  methods  of  procedure,  but  I  do  not 
intend  to  try  to  inflict  an  injurj^  upon  the  cities  by  opposing  the  amendment  offered  by 
the  gentleman  from  Richmond.  It  was  unjust,  in  my  opinion,  to  apply  the  principle 
to  the  counties,  and  I  will  not  vote  to  extend  it  to  the  cities. 

I  have  listened  with  attention  to  what  the  gentleman  from  King  and  Queen  (3Ir. 
Jones)  has  said,  and  in  Lhe  same  line  I  might  refer  to  my  own  county.  In  that  county 
there  is  no  great  eagerness  to  hold  the  office  of  treasurer.  It  is  not  such  a  very  desirable 
office.  It  is  not  an  office  with  a  heavy  salary.  We  now  have  an  admirable  treasurer, 
and  while  he,  as  I  am  informed,  is  not  particularly  anxious  to  retain  the  office,  I  will 
object  to  any  action  that  would  prevent  the  people  from  continuing  him  in  service. 
For  the  present  I  will  vote  for  the  amendment  of  the  gentleman  from  Richmond,  with 
the  hope  and  expectation  that  when  a  motion  to  rescind  is  made  here  the  county  mem- 
bers who  are  against  this  principle  will  have  the  stipport  of  the  members  from  the 
cities. 

Mr.  Mclhvaine:  Mr.  Chairman,  it  seems  to  me  self-evidently  true  that  this  amend- 
ment ought  to  be  carried,  and  that  the  provision  ought  to  be  made  for  the  cities  which 
they  universally  desire. 

I  represent  one  of  the  counties,  and  I  will  stand  with  the  gentleman  from  Fairfax 
OlT.  :Moore)  in  an  effort  to  try  and  get  the  action  of  the  Convention  in  regard  to  the 
county  treasurer  brought  up  again;  but  it  seems  to  me  that  matter  ought  not  to  have 
any  bearing  whatever  with  us  on  the  question  that  is  before  the  committee  now.  It 
seems  self-evidently  true  that  what  the  cities  want  in  this  respect  they  ought  to  have. 
The  experience  of  all  of  us  is  along  this  line,  and  we  ought  not  to  hinder  them  in  what 
is  manifestly  for  their  welfare. 

Mr.  Braxton:  jvir.  Chairman,  I  have  the  honor  to  represent  in  part,  not  only  one 
of  the  sturdiest  and  most  prosperous  little  cities  in  the  Commonwealth,  but  also  prob- 
ably the  biggest  county  in  the  State  in  population  and  in  taxable  values;  but  I  feel 
that  in  these  matters  I  have  no  prejudice  either  for  or  against  the  county  or  the  city. 

When  this  matter  came  up  before,  as  to  the  counties,  I  voted  against  it  and  I  spoke 
against  it.  It  seems  to  me  that  it  is  wrong  in  principle.  It  seems  to  me  that  it  Is  the 
crudest  attempt  to  correct  an  evil  that  I  have  ever  known,  with  all  due  respect  to  the 
gentlemen  who  differ  with  me  on  the  subject.  The  proposition  is  to  make  these 
treasurers  account  properly  and  perform  their  duties  properly,  and  the  remedy  proposed 
is  to  deprive  them  of  all  incentive  they  can  possibly  have  to  be  good  officers  by  saymg 
to  them:  T^Tiether  you  are  good  or  whether  you  are  bad  you  shall  inevitably  be  turned 
out  of  office. 

It  seems  to  me  that  is  a  mistake.  In  my  humble  opinion  it  is  a  mistake  for  coun- 
ties as  well  as  a  mistake  for  cities.  If  the  matter  comes  up  again,  and  I  have  another 
opportunity  to  vote  on  it,  I  shall  certainly  vote  to  change  that  as  to  the  counties,  as 
I  did  before;  but  even  if  that  does  not  occur,  and  it  should  be  the  opinion  of  a  majority 
of  the  committee  that  the  rule  of  ineligibility  should  remain  applicable  to  the  counties, 
I  shall  insist  it  is  a  mistake  to  say  that  because,  and  simply  because,  it  is  applied  to  the 
counties  it  ought  to  be  applied  to  the  cities.  If  it  is  true  that  it  should  be  applied  to 
the  cities  that  does  not  depend  upon  the  fact  that  it  is  applied  to  the  counties.    If  it  is 


1922 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 


proper  to  have  it  in  the  cities,  I  say  have  it  there,  but  do  not  have  it  in  the  counties; 
and  if  it  is  not  proper  to  apply  it  to  the  cities,  I  say  do  not  apply  it  to  them  although 
you  do  apply  it  to  the  counties.  The  conditions  of  rural  and  urban  life  are  essentially 
different.  Why  is  it  we  have  a  different  government  in  every  respect  in  cities  from  what 
we  have  in  counties?  Why  do  you  not  transfer  your  city  government  to  the  counties 
or  your  county  government  to  the  cities?  For  the  simple  reason  that  the  conditions 
are  different. 

You  have  different  troubles,  different  propositions  to  deal  with.  Different  condi- 
tions confront  you.  I  submit,  sir,  in  addition  to  any  reason  that  may  be  urged  for  this 
thing  in  the  county,  in  the  cities  we  have  these  reasons  against  it.  In  small  counties 
the  duties  of  the  treasurer  are  not  so  great  but  that  he  can  perform  other  duties  along 
with  it,  and  so  you  do  not  have  so  much  difficulty  in  getting  men  to  run  for  an  office 
which,  when  they  get  it,  will  not  compel  them  to  lay  aside  and  give  up  all  other  busi- 
ness they  may  have.  They  may  carry  on  their  farm,  for  instance.  But  when  you  come 
to  the  treasurer  of  a  city,  the  duties  of  whose  office  are  absolutely  engrossing,  when 
he  goes  into  that  office  he  must  give  up  all  other  businessi,  because  he  does  not  have 
time  for  anything  else.  I  submit  to  you,  gentlemen,  not  that  men  cannot  be  gotten, 
because  you  can  always  find  somebody  who  is  willing  to  accept  a  position,  if  only  for 
a  night's  lodging;  but  you  cannot  get  competent,  faithful,  efficient  men;  not  men  who 
want  the  position,  but  men  whom  the  people  want  for  the  position,  to  go  out  of  business, 
if  they  have  any  business,  and  give  up  everything  in  order  to  take  an  office  for  one  or 
two  terms,  which  they  would  have  to  lose  inevitably  whether  they  performed  their 
duties  faithfully  and  efficiently  or  not.  I  think,  gentlemen,  it  is  clearly  true  you  would 
be  compelled  to  have  inefficient  and  incompetent  men  to  fill  offices  on  any  such  terms. 

What  is  the  proposition?  It  is  that  if  a  man  be  a  merchant,  or  a  banker,  or  what- 
ever his  business  may  be,  he  must  go  out  of  that  business  entirely,  abandon  it,  close 
it  up,  in  order  to  take  an  office  which  will  continue  but  for  a  few  years,  and  then  give 
up  that  office  and  start  life  over  again. 

In  my  own  city,  and  as  far  as  I  am  aware,  in  all  the  cities,  we  have  officers,  of  tried 
integrity,  experience  and  efficiency.  It  has  been  said  here  that  the  power  of  selecting 
their  own  officers  should  not  be  taken  from  the  people,  and  yet  it  is  proposed  here  toi 
say  to  the  people,  "Although  you  have  an  officer  who  is  possibly  the  only  man  in  your 
community  suited  for  the  position,  one  whom  you  unanimously,  without  the  exception 
of  a  single  solitary  voice,  want  to  have  this  office,  you  shall  not  have  the  right  to  elect 
him?"  I  say  that  is  restriction  upon  the  right  of  the  people  to  elect  men  to  fill  their 
offices  that  goes  further  than  anything  ever  yet  proposed.  I  understand,  in  many  cases, 
there  have  been  defaulting  treasurersi  in  the  counties,  but,  if  my  information  is  correct, 
there  has  been  but  one  instance,  as  I  am  informed  by  the  auditor,  in  1884,  when  the 
State  has  ever  lost  a  cent  by  the  defalcation  of  a  city  treasurer. 

Gentlemen,  I  hope  I  will  not  be  misunderstood  in  this.  I  do  not  mean  to  say  that 
the  city  treasurers  or  the  men  in  the  cities  are  any  better  or  of  any  higher  order  of 
integrity  than  the  men  in  the  counties.  But  what  I  did  say  is  that  the  system  of  ac- 
counting which  is  required  of  the  treasurers  in  the  cities  is  more  efficient  than  it  is  in 
the  counties,  and  there  is  the  whole  question.  It  is  a  question  of  how  you  shall  make 
the  officers  settle  their  accounts.  If  you  have  a  competent  system  you  will  not  need  the 
clause  you  complain  of.  If  you  do  not  have  a  competent  system  you  will  be  left  with 
the  same  troubles  if  you  turn  them  out  of  office  at  the  end  of  every  week. 

Now,  Mr.  Chairman  and  gentlemen  of  the  committee,  the  complaint,  as  far  as 
I  have  heard,  is  that  the  poll-tax  is  not  collected  in  the  cities  as  it  is  in  the  counties. 
That  is  a  notorious  fact,  a  deplorable  fact,  a  fact  which  ought  not  to  exist,  and  one  for 
which  we  should  have  some  remedy.  But  sometimes,  Mr.  Chairman,  the  proposed 
remedy  is  not  a  remedy  in  fact  at  all.  How  will  it  remedy  that  to  say  the  man  shall 
go  out  of  office?  Why  is  it  he  does  not  collect  these  poll-taxes?  It  is  principally  because 
it  does  not  pay  him  to  do  it.  The  poll-tax  is  one  dollar,  and  his  commission  on  it,  I 
believe,  is  two  and  a  half  cents,  or  maybe  less  than  that.    It  would  not  pay  him  the 


DEBATES  OF  THE  COXSTTTUTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


1923 


carfare  that  would  be  necessary  for  him  to  ride  out  and  collect  the  money,  even  if  the 
man  would  give  it  to  him.  It  is  a  part  of  his  business,  the  execution  of  which  does 
not  pay  him,  and  therefore  when  it  is  left  to  him  to  perform  it,  he  does  not  execute  it. 
I  say  the  law  ought  to  require  him  to  execute  it.  The  law  ought  to  say  to  him  in  every 
case  of  failure  to  collect  the  poll-tax  from  a  delinquent,  -You  must  show  that  the  man 
has  not  the  money  in  order  to  make  it  out  of  him,  that  you  have  applied  to  him,  or  that 
he  is  not  a  resident  of  the  town." 

If  you  turn  him  out  at  the  end  of  a  year,  or  of  four  years,  he  will  not  put  himself 
to  the  trouble  of  collecting  the  poll-tax  any  more  than  he  does  now,  because  it  would 
not  pay  him  to  collect  it  any  more  than  it  does  now.  The  very  reasons  which  exist 
to-day  for  his  going  through  a  year  without  collecting  the  poll-tax  will  continue  to  exist, 
it  matters  not  when  you  turn  him  out  of  office.  I  heartily  join  with  these  gentlemen  in 
saying  that  is  an  evil  that  should  he  corrected,  but  I  differ  from  them  in  thinking  that 
the  proposed  amendment  would  afford  any  remedy  for  it  whatsoever. 

YiT.  George  K.  Anderson:  Does  it  cost  any  less  to  collect  the  dollar  in  Richmond 
than  to  collect  it  in  the  country? 

Mi\  Braxton:  Doubtless  it  does  not,  and  I  hope  the  gentleman  will  understand  that 
I  am  not  palliating  this  situation  of  affairs  on  the  part  of  the  city  treasurers.  I  admit 
it  is  a  deplorable  fact  which  ought  to  be  remedied.  If  you  can  suggest  any  remedy 
which  seems  to  me  to  be  directed  to  the  cure  of  the  evil,  I  will  join  with  you  in  sectiring 
it.  I  understand  you  have  a  system  in  the  country  by  which  you  require  treasurers  to 
either  collect  the  poll-tax  or  show  why  they  do  not  do  it.  That  rule  ought  to  be  applied 
in  the  cities. 

The  point  I  make,  and  I  hope  gentlemen  will  not  misunderstand  me,  is  that  the  pro- 
posed remedy  will  not  help  the  evil,  but  the  evil  you  complain  of  will  remain  just  as 
gTeat  if  you  turn  the  treasurer  out  of  office  as  if  you  did  not  turn  him  out.  I  suggest  to 
you,  gentlemen,  that  the  delinquent  list  of  the  city  of  Richmond  has  to  be  passed  upon 
just  the  same  as  the  delinquent  list  in  the  counties  by  one  of  the  courts  here  in  the 
city — I  think  the  hustings  court;  but  I  grant  you  it  is  a  purely  perfunctory  matter. 

Mr.  Meredith:  I  desire  to  call  attention  to  the  fact  of  the  absolute  impossibility  of 
remedying  the  difficulty  in  the  way  proposed.  In  the  counties,  when  the  treasurer  comes 
before  the  board  of  supervisors,  he  knows  the  supervisors  in  one  district  and  the  super- 
visor in  another  district.  In  the  city  we  do  not  know  the  men  who  live  in  the  square 
above  or  in  the  square  below.  That  is  my  case,  and  I  am  pretty  well  known  in  the  city  of 
Richmond,  myself.  The  same  principle  cannot  be  applied.  Some  other  means  must  be 
devised  for  curing  the  difficulty. 

Mr.  Braxton;  Mr.  Chairman,  it  is  well  known  in  the  various  schemes  proposed  for 
the  amendment  of  the  suffrage  law,  I  think  without  a  single  exception,  the  prepayment 
of  the  poll-tax  has  been  made  one  of  the  provisions  in  all  of  them;  and  I  submit  that 
when  that  is  done  the  difficulty  that  exists  in  many  cases  to-day  will  not  exist. 

Furthermore,  it  is  suggested  in  many  of  them,  as  a  part  of  the  scheme  of  suffrage, 
that  the  payment  of  the  poll-tax  be  not  made  compulsory;  and  if  that  be  true,  then  you 
will  not  have  occasion  for  this;  but  I  will  say  once  more  that  I  do  not  intend  to  palliate 
in  any  way  the  failure  of  city  treasurers  to  collect  the  poll-tax.  I  simply  say  I  do  not 
believe  turning  them  out  of  office  will  have  any  tendency  whatsoever  to  correct  that 
evil.  It  is  a  thing  which  can  be  corrected,  and  ought  to  be  corrected,  but  it  cannot  be 
corrected  in  that  way.  I  trust  that  when  the  experience  of  all  the  representatives  of 
the  city,  as  far  as  I  know,  concur  in  deploring  this  suggested  movement  as  one  which 
their  experience  shows  is  not  desirable,  when  I  state  that  if  you  gentlemen  will  think 
over  it  you  will  see  it  will  not  accomplish  what  you  want,  it  will  be  the  pleasure  of  the 
committee  to  vote  down  the  proposition  and  leave  the  people  of  the  cities  free  to  elect 
whom  they  choose  to  this  office,  and.  when  a  man  has  faithfully  performed  the  duties, 
they  may  be  permitted  to  say  to  him.  ''Well  done,  thou  good  and  faithful  servant;  we 
will  retain  you  there;  we  will  show  you  still  have  our  confidence,  and  we  will  hold  out 
some  reward  as  an  inducement  for  faithful  and  efficient  service." 


1924 


DEBATES  OF  THE  CONSTITUTIOIs^AL  CONVEN'TION'  OF  VIRGINIA. 


Mr.  Wescott:  Mr.  Chairman,  if  I  had  any  dooibt  whatsoever  of  the  fact  that  this 
body  has  already  listened  to  the  discussion  of  this  question  fully  as  long  as  it  is  disposed 
to  listen,  the  inattention  that  has  been  given  during  the  period  which  has  been  consumed 
by  his  rediscussion  of  it  would  attest  the  truth  of  that  fact. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  occupy  your  time,  as  usual, 
but  a  very  few  moments,  with  a  view  to  enforcing  the  suggestion  made  by  the  dis- 
tinguished gentleman  from  King  and  Queen  (Mr.  Jones).  We  have  heard  the  arguments 
pro  and  con  which  have  been  urged  heretofore,  both  in  committee  of  the  ^Hiole  and  in 
Convention,  as  to  the  wisdom  or  unwisdom  of  the  pursuit  of  this  policy,  when  the  recom- 
mendation of  the  Committee  on  the  Organization  and  Government  of  Counties  was  under 
consideration.  We  have  heard  them  without  stint  or  limit  in  Committee  of  the  ^Vhole; 
we  have  considered  and  reconsidered  and  heard  and  reheard  them  in  Convention;  and 
I  submit,  Mr.  Chairman  and  gentlemen,  that  the  consensus  of  opinion  of  this  body  has 
taken  form  in  the  report  which  has  been  adopted. 

Now,  sirs,  I  desire  to  address  myself  to  this  consideration  only:  If,  in  the  view  of 
all  the  gentlemen  from  the  cities  and  the  contingent  from  the  counties,  the  course  which 
we  have  adopted  is  unwise,  if  it  is  proposed,  Mr.  Chairman  and  gentlemen,  that  by  reason 
of  the  unwisdom  of  the  course  to  which  we  have  committed  ourselvea  we  should  recede 
from  that  position,  I  insist  that  is  no  reason  why  we  should  at  this  stage  leave  the  result 
of  the  action  of  this  body,  by  our  votes  here,  undistributed  upon  this  question,  and 
establish  a  diametrically  opposite  rule  with  reference  to  cities  to  the  one  we  have 
adopted  as  to  the  counties  is  inherently  and  intrinsically  wrong,  as  contended  for  by 
these  gentlemen,  then  let  us  put  the  cities  in  the  same  wrong  position.  I  do  not  concede 
that  proposition;  for  then  I  submit  there  would  be  a  stronger  pressure  and  a  stronger 
incentive  for  the  combined  exertions  and  influence  of  the  members  from  both  counties 
and  cities  to  undo  that  wrong.  ' 

I  am  discuSiSing  this  question  now  upon  the  assumption  that  that  policy  to  which, 
in  our  previous  proceedings,  we  have  committed  this  body  is  unwise,  and  that  we  ought 
to  retrace  our  steps.  I  submit,  gentlemen,  in  view  of  that  aspect  of  the  question  alone 
we  are  more  apt  to  retrace  our  steps,  we  are  more  apt  to  give  force  in  our  votes  to  the 
expression  of  that  view,  when  the  cities  and  the  counties  both  are  interested  in  the 
motion  to  rescind,  designed  to  correct  this  unwisdom  to  which  it  is  said  by  some  we 
have  committed  ourselves. 

A  few  more  words,  gentlemen,  and  I  shall  conclude.  1  realize  the  distinction  made 
in  many  regards  between  the  city  and  the  county  governments.  I  realize  the  risks  that 
underlie  the  distinction  as  to  the  difference  that  must  of  necessity  prevail  in  many 
respects  in  the  cities  and  in  the  counties,  but  I  challenge  the  gentleman  who  advocates 
that  proposition  as  a  reason  why  we  should  put  the  counties  in  this  matter  in  one  posi- 
tion, and  the  cities  in  another,  to  point  out  to  me  one  single  inherent  difference  between 
the  officers  of  the  respective  cities  and  counties  of  the  Commonwealth  in  this  matter, 
in  so  far  as  the  name  and  the  character  of  the  duties  required  to  be  performed  are  con- 
cerned. 

Wherein  lies  that  difference?  It  does  not  exist.  Their  duties  are  identical.  If  this 
policy  is  wise  with  reference  to  the  counties  of  the  State,  then  every  consideration  that 
forces  upon  us  the  belief  that  it  is  wise  to  adopt  it  with  reference  to  the  counties,  is 
equally,  I  submit,  applicable,  and  should  equally  influence  our  conduct  in  making  that 
policy  and  that  principle  applicable  alike  to  the  citiesi.  Then,  on  the  other  hand,  if  the 
gentlemen  who  have  fought  and  contended  and  contested  in  every  stage  of  this  pro- 
ceeding, and  who  have  been  successively  voted,  wish  still  to  contend  that  that  course 
is  unwise,  that  it  will  result  in  injurious  consequences,  then  I  submit  that  this  body, 
when  it  addresses  itself  to  the  question  of  the  unwisdom  of  that  course,  should  take  into 
consideration  alike  its  unwisdom  as  applied  to  counties,  and  as  applied  to  the  cities,  be- 
cause there  is  no  difference  between  the  characters  of  the  two  municipal  corporations 
to  which  it  is  applicable. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


1925 


I  therefore,  Mr.  ChairixLan  and  gentlemen  of  the  committee,  without  undertaking  to 
meet  these  gentlemen  in  discussing  the  wisdom  or  the  unwisdom  of  that  policy,  but  meet- 
ing them  upon  their  own  ground,  say  to  them  that  if  that  to  which  we  have  committed 
ourselves  in  the  report  that  has  been  successively  adopted  by  the  Committee  of  the 
T^Tiole  and  the  Convention  is  unwise,  let  us  consider  its  unwisdom  as  affecting  both  the 
cities  and  the  counties  alike;  let  us  not  run  the  risk,  under  any  circumstances,  of  having 
in  our  Constitution  this  crazy-quilt  patchwork  of  legislation  of  a  different  character 
when  applied  to  cities  from  that  which  is  applied  to  counties,  when  there  is  no  intrinsic 
difference  in  the  character  and  nature  of  the  duties  of  the  ofiicers  to  which  that  differ- 
ence applies,  which  underlies  and  supports  that  discrimination. 

I  hope,  Mr.  Chairman  and  gentlemen,  that  the  amendment  of  the  gentleman  from 
the  city  of  Richmond  will  be  defeated. 

On  motion  of  Mr.  Lindsay  the  committee  rose  and  the  President  resumed  the  chair. 

Mr.  Stebbins :  I  desire  to  offer  the  following  resolution,  and  ask  that  it  be  referred 
to  the  Committee  on  the  Organization  and  Government  of  Counties: 

Resolved,  That  the  action  of  the  Convention,  in  inserting  the  following  words,  to 
wit:  '"Who  shall  not  be  elected  nor  serve  for  more  than  two  consecutive  terms,  nor 
shall  he  act  as  the  deputy  of  his  immediate  successor,"  in  the  first  section  of  the  report 
of  the  Committee  on  the  Organization  and  Government  of  Counties,  be  and  the  same 
is  hereby  rescinded. 

Mr.  William  A.  Anderson:  I  offer  the  following  resolution  and  ask  that  it  be 
referred  to  the  Committee  on  the  Judiciary: 

Resolved.  That  the  following  section  or  provision  to  like  effect  be  embodied  in  the 
Constitution: 

Section  — .  The  judge  of  the  corporation  court  of  an  incorporated  community 
having  a  city  charter  under  existing  laws,  but  having  less  than  five  thousand  inhabi- 
tants, may  reside  outside  the  corporate  limits  thereof;  and  the  same  person  may  be 
judge  of  the  corporation  court,  and  judge  of  the  corporation  court  of  some  other  city  of 
less  than  ten  thousand  inhabitants. 

The  hour  of  2  o'clock  having  arrived  the  Convention  adjourned  until  tomorrow, 
Y^'ednesday,  January  22,  1902.  at  10  o'clock  A.  M. 


WEDNESDAY,  January  22,  1902. 

The  Convention  met  at  10  o'clock  A.  :m. 
Prayer  by  Rev.  Richard  Mcllvvaine,  D.  D. 

]\rr.  Green:  I  move  that  the  report  of  the  Committee  on  the  Preamble  and  Bill  of 
Rights  be  referred  to  the  Committee  on  Final  Revision,  and  that  it  be  printed  for  the 
use  of  members. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Brooke  the  Convention  resolved  itself  into  Committee  of  the 
mole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organization 
and  Government  of  cities  and  towns,  :Mr.  T^lthers  in  the  chair. 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Richmond  (Mr.  Wise)  to  the  first  clause  of  Section  6. 

:\Ir.  Wysor:  Mr.  Chairman,  I  crave  the  indulgence  of  the  committee  while  I  discuss^ 
for  a  few  moments,  the  pending  question. 

I  would  not  trespass  at  all  upon  the  patience  of  the  committee  if  I  had  not  promised 
the  gentleman  from  Accomac  (Mr.  Wescott)  that  if  he  would  make  a  speech  upon  the 
subject  I  would  follow  him  with  a  few  remarks. 

I  was  very  much  impressed  with  the  speech  of  the  gentleman  from  Accomac.  It 


1926 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


was  argumentative,  forceful,  intelligent.  The  proposition  before  the  committee  is  to 
make  city  treasurers  ineligible  for  more  than  two  consecutive  terms  of  office.  That 
same  provision  has  been  already  adopted  as  to  county  treasurers.  The  committee  re- 
ported in  favor  of  such  a  provision  in  reference  to  county  treasurers;  it  was  argued 
thoroughly  in  Committee  of  the  Whole,  and  they  decided  in  favor  of  the  provision.  It 
was  afterwards  submitted  to  the  Convention,  which  finally  adopted  the  provision;  but 
in  the  face  of  these  facts  the  gentleman  from  Halifax  (Mr.  Stebbins)  comes  here  and 
offers  a  resolution  to  rescind  the  action  of  the  Convention  in  regard  to  the  eligibility  of 
county  treasurers. 

It  seems  that  he  wants  to  destroy  the  steadfastness  of  purpose  of  the  Convention. 
Why,  he  wants  to  make  a  supple-jack  out  of  the  Convention  so  that  it  may  turn  somer- 
saults for  the  delectation  of  the  public.  (Laughter.)  He  wants  to  make  a  shuttlecock  out 
of  the  Convention,  and  to  run  it  backwards  and  forwards  like  the  shuttlecock  in  a  loom. 
I  suggest  to  the  gentleman  from  Fairfax  we  cannot  make  a  Constitution  like  an  old 
woman  weaves  a  piece  of  jeans.  (Laughter.)  I  submit  we  ought  to  adhere  to  what  we 
have  already  done  upon  thisi  subjeect. 

I  was  surprised  at  the  gentleman  from  Prince  Edward  (Mr.  McIlv/aiuQ)  when  he 
endorsed  the  position  of  the  gentleman  from  Halifax.  The  gentleman  from  Prince 
Edward  is  one  of  the  most  learned,  one  of  the  most  useful,  one  of  the  most  distinguished 
members  of  this  body.  I  just  read  his  life  in  the  Virginia  Constitution  Directory  of  1901. 
see  what  follows  his  name  A.  D.,  A.  M.,  D.  D.,  LL.  D.  (Laughter,)  Why,  these  degrees, 
following  his  name,  make  it  look  like  a  kite,  with  a  magnificent  streamer  stretched  out 
behind  it.  (Laughter.)  And  yet  he  is  here  supporting  this  propsition  of  the  gentleman 
from  Halifax  to  undo  what  we  have  adopted  in  so  many  instances. 

Mr.  Mcllwaine:    Will  the  gentleman  permit  me  to  interrupt  him? 
Mr.  Wysor:    No,  sir.    I  am  not  used  to  being  played  with  at  home,  and  I  will  not 
be  played  with  here.    (Laughter.)    I  do  not  believe  in  these  interruptions.    They  serve 
no  useful  purpose.  (Laughter.) 

Mr.  Mcllwaine:  If  the  gentleman  will  permit  me,  I  will  say  that  he  is  mistaken  in 
saying  that  I  endorsed  the  proposition  of  the  gentleman  from  Halifax. 

Mr.  Wysor:    I  understood  you  to  say  you  endorsed  it. 

Mr.  Mcllwaine:    No,  sir. 

Mr.  Wysor:  Then,  sir,  I  extend  to  you  my  apology.  I  understood  you  to  say  yes- 
terday that  you  endorsed  the  position  of  the  gentleman  from  Halifax,  and  I  was  surprised 
that  you  did  so.  I  am  glad  to  find  you  do  not.  I  tried  to  get  the  gentlem.an  from  Prince 
Edward  on  the  occasion  to  vote  for  the  reconsideration  of  a  measure  in  favor  of  which 
he  had  voted,  but  which  had  been  lost;  but  he  said  he  would  not  do  it;  that  he  was  not 
in  favor  of  dilatory  tactics —  and  hence  my  surprise  at  what  I  conceived  to  be  his  posi- 
tion in  supporting  the  position  of  the  gentleman  from  Halifax. 

Now,  the  gentleman  from  Richmond  (Mr.  Meredith) — there  are  so  many  gentlemen 
from  Richmond  that  we  have  to  violate  the  rules  and  call  them  by  name,  so  that  it  may 
be  known  which  gentleman  we  mean — and  the  gentleman  from  Manchester  (Mr.  Ingram) 
take  the  position  that  the  provision  is  against  principle.  Against  what  principle?  What 
principle  is  involved  in  the  question?  It  is  a  mere  question  of  public  policy.  We  have 
a  right  to  put  it  in  the  Constitution.  It  has  been  put  in  the  Constitutions  of  other  States. 
Our  bill  of  rights  provides  that  officers  shall  frequently  be  returned  to  private  station,  and 
says  in  so  many  words  that  they  may  be  made  ineligible  for  succeeding  terms  of  office 
as  the  law  may  direct.  And  yet  we  come  here  and  are  told  that  it  is  against  some 
principle  to  put  it  In  the  Constitution.  The  gentleman  from  Manchester  says  he  believes 
in  this  kind  of  rotation  of  office,  but  he  wants  the  people  to  rotate.  How  are  the  people 
going  to  rotate  an  oflicer  where  he  has  got  them  by  the  goozle?  (Laughter.)  They  may 
rotate  him  in,  but  they  cannot  rotate  him  out.  I  lay  this  down  as  a  principle  which  is 
incontrovertible — that  a  government  is  more  interested  in  the  prompt  payment  of  its 
revenues  into  the  public  treasury,  and  the  proper  disbursement  thereof,  than  it  is  in' 
anything  else.    If  you  cut  off  the  government  revenues  you  destroy  the  government.  It 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGINIA.  1927 

is  like  cutting  off  the  train  of  a  great  army  when  it  has  no  food  and  no  ammunition.  So, 
when  you  impair  the  revenues  of  a  government  in  any  way,  you  impair  the  government 
itself. 

It  is  a  question  of  policy.  It  is  a  question  of  efficiency.  The  question  is — will 
making  treasurers  ineligible  after  two  consecutive  terms  of  office  cause  them  to  be  better 
officers,  make  more  prompt  collections  of  the  revenues,  and  pay  them  into  the  public 
treasury  more  promptly  than  under  the  present  laws?  Why,  the  present  laws  are  ample, 
they  are  sufficient,  so  far  as  the  form  and  text  of  the  laws  are  concerned,  but  the 
treasurers  do  not  abide  by  them.  You  cannot  make  them  abide  by  them;  but  this 
simple  provision  will  secure  what  you  desire.    No  man  can  deny  that  it  will  be  efficient, 

I  prefer  that  a  treasurer  be  elected  for  six  years  and  for  only  one  term.  If  I  cannot 
get  that  I  want  the  provision  which  we  have.  When  you  make  him  ineligible,  he  knows 
he  must  settle;  he  knows  there  is  a  day  of  settlement  coming,  and  coming  soon,  and 
that  he  must  get  ready  to  settle  with  somebody  else  who  will  take  the  office.  Therefore, 
he  will  undertake  to  collect  all  the  revenues  belonging  to  the  government  and  have  them 
on  hand.  That  is  self-evident.  That  is  plain.  Why  do  you  put  such  a  provision  as  that 
in  the  Constitution?  What  better  provision  could  you  put  into  the  Constitution  than  pro- 
vision like  that,  which  violates  no  principle,  and  which  conserves  the  public  interest 
in  every  way? 

Gentlemen  who  deny  that  proposition,  who  prefer  the  present  cumber-some  machinery 
of  the  law  to  make  treasurers  settle,  would  prefer  an  ox-cart  to  an  automobile;  they 
would  prefer  a  torchlight  to  a  lamp;  they  would  prefer  a  lamp  to  an  electric  light,  and 
if  you  once,  by  any  means,  got  them  to  take  up  an  electric  light,  they  would,  without 
doubt,  prefer  it  even  to  the  resplendent  glories  of  the  new  Jerusalem.  (Laughter.) 
This  thing  is  automatic.    It  is  a  useful  provision  in  the  Constitution. 

Here  comes  the  gentleman  from  Stauton  (Mr.  Braxton).  What  objection  has  he 
to  it?  I  admire  the  gentleman  from  Staunton.  I  admire  his  charming  eloquence,  his 
ready  flow  of  language,  his  periods;  but  he  must  pardon  me  for  saying  that  his  speech 
on  yesterday  upon  the  pending  subject  reminded  me  of  the  hand-writing  of  a  blue-bottle 
fly  in  summer-time.  It  was  all  periods.  (Laughter.)  He  comes  here  to  tell  us  about 
what  they  have  got  in  Staunton — about  the  good  treasurer  they  have  in  Staunton.  He 
has  been  in  Staunton  so  long  that  he  thinks  Staunton  is  hub  of  the  universe  because 
it  has  a  lunatice  asylum.  (Laughter.) 

There  are  other  places  than  Staunton.  I  wish  I  could  take  him  up  to  Pulaski  and 
let  him  see  the  gem  city  of  the  mountains,  and  let  him  breathe  the  fresh  ozone  coming 
down  from  the  mountain  tops,  each  fresh  breath  from  Heaven  bearing  the  order  of  the 
cedar  and  pine. 

Now,  gentlemen,  I  insist  that  because  he  has  a  good  treasurer  in  Staunton  is  no 
reason  why  we  should  violate  the  general  principle.  Wiiat  does  the  gentleman  from 
Staunton  want?  He  wants  to  keep  his  man  in  office.  I  asked  the  gentleman  from 
Staunton  awhile  ago  what  his  treasurer's  name  was.  He  says  his  name  is  Izona  Hoge. 
I  said.  How  long  has  Izona  Hoge  been  in  office?"  He  said,  "Why,  Izona  Hoge  has  been 
in  office  for  fifteen  years."  What  kind  of  a  position  is  he  advocating  here,  that  retains 
a  man  in  office  until  every  tooth  in  his  head  has  become  impaired  beyond  redemption, 
until  he  becomes  "sans  eyes,  sans  teeth,  sans  everything."  What  kind  of  inducement 
is  he  holding  out  to  his  children  in  Staunton?  (Laughter.)  Suppose  one  of  his  blue- 
eyed  boys  should  come  up  to  him  and  say,  "Papa,  I  want  to  be  elected  treasurer  some 
of  these  days."  He  v/ould  say,  "Well  you  can  be  when  Izona  Hoge  dies."  (Laughter.) 
That  is  his  idea  now  of  keeping  a  man  in  office.  I  want  men  to  get  out  of  office  occasion- 
ally— I  do  not  care  how  well  they  fill  the  office — and  let  somebody  else  try. 

The  gentleman  from  Fairfax  (Mr.  Moore),  whose  charming  eloquence  so  often 
entertains  us,  and  who  evidently,  like  Demosthenes  of  old,  has  walked  along  beside  the 
sea  and  spoken  to  its  waves  with  his  pebbles  in  his  mouth  (laughter),  comes  forward 
and  makes  a  startling  proposition.  He  says  if  the  gentlemen  from  the  counties  would 
support  this  proposition,  why,  peradventure  they  would  turn  around  and  rescind  the 


1928 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


provision  making  treasurers  ineligible  in  counties.  He  thinks  you  green,  apparently. 
He  sees  flies  and  specks  on  you,  to  make  such  a  proposition  as  that  to  you.  Why,  he 
wants  to  take  you  a-hunting  and  divide  the  game  among  his  friends  and  give  you  the 
cahoot.  (Laughter.)  He  thinks  you  are  babes,  and  he  wants  to  lull  you  by  singing 
in  melliflous  voice  that  old  nursery  song — 

"Bye  Baby  Bunting, 
Papa's  gone  a  hunting 
To  get  a  little  rabbit  skin 
To  wrap  Baby  Bunting  in. 

Do  you  intend  to  be  led  astray  by  such  music  as  that?  (Laughter.)  It  might  cause 
stones  and  trees  to  follow  the  musician,  but  I  hope  this  independent  Convention  will 
never  be  misled  by  it.  If  you  gentlemen  want  to  accomplish  anything  you  go  just  the 
reverse  of  what  the  gentleman  from  Fairfax  advises  you.  (Laughter.)  If  you  do  not 
act  as  he  advises  you  put  him  and  his  friends  in  the  same  kind  of  a  hole  that  he  says 
you  are  in,  and  if  they  say  to  you  we  will  get  you  out  of  the  hole  if  you  will  then  lift 
us  out  of  the  hole,  all  right,  but  do  not  keep  them  out  of  the  hole,  because  you  have  no 
certainty  that  they  will  lift  you  out  of  the  hole.  The  thing  first  to  do  is  to  put  them  all 
in  the  same  kind  of  a  hole  that  you  are  in.  (Laughter.) 

The  new  member  from  Richmond  (Mr.  Allen)  comes  foward  and  tells  the  gentle- 
man from  the  counties  how  much  he  has  been  doing  for  them  and  wants  them  to  assist 
the  cities.  But  he  has  not  been  here  long  enough  to  do  very  much  for  them;  and  now 
he  says  he  always  wants  to  know  what  you  want,  and  he  will  vote  for  it.  When  h© 
came  here  I  moved  to  make  him  take  the  oath  of  office,  and  I  am  sorry  I  did  not  succeed, 
because  he  has  a  kind  of  loose  way  of  voting.  (Laughter.)  He  only  ought  not  to  vote 
for  a  thing  just  because  you  want  it.  I  say  to  him  you  want  an  ineligibility  clause,  but 
I  am  not  going  to  vote  for  that.  I  am  not  going  to  give  you  what  you  want,  but  what 
you  need.  If  you  ask  for  bread  I  am  not  going  to  give  you  a  stone.  I  am  going  to 
give  you  what  you  need. 

I  do  not  believe  the  gentleman  really  wants  what  his  constituency  wants.  I  be- 
lieve if  we  leave  it  to  the  citizens  of  Richmond  to-day  (I  mean  the  white  citizens) 
they  would  give  on  overwhelming  majority  in  favor  of  making  the  treasury  ineligible 
for  more  than  two  consecutive  terms.  He  is  representing  a  few  people  and  not  all  the 
people,  not  the  great  mass  of  the  people.  Your  people  here  are  in  your  shipyards,  in 
your  factories,  in  your  enterprises.  They  are  composed  largely  of  every-day  laborers. 
These  people  constitute  the  great  bulk  and  mass  of  your  people,  and  they  believe  in 
rotation  in  office.  They  do  not  believe  in  a  man  holding  office  interminably.  Look 
at  the  evil  it  produces.  Why,  he  has  the  saddle-bags  to  perpetuate  himself;  he  will 
join  in  with  some  other  oflScer  and  they  will  all  get  together  and  make  a  combination, 
and  it  is  almost  impossible  to  beat  them.  The  masses  of  the  citizens  of  the  Common- 
wealth prefer  a  leader,  bearing  a  banner  upon  which  is  inscribed;  "Ring  out  the  old, 
ring  in  the  new." 

If  I  thought  the  people  of  the  city  of  Richmond  really  wanted  their  treasurer  eligible 
continually,  I  would  hate  to  vote  against  the  proposition.  I  love  the  charming  capital 
city  of  the  Old  Dominion,  so  beautifully  located  on  the  water  of  the  historic  James. 
I  love  her  people.  Their  patriotism  has  been  tried  in  the  fiery  crucible  of  the  .greatest 
internecine  war  the  earth  has  ever  seen,  and  has  come  out  like  gold,  purified  in  a 
furnace.  She  suffered  defeat  in  war,  she  now  enjoys  the  victory  of  peace.  Her  waste- 
places  have  been  restored.  Trees  and  flowers  cover  the  places  of  desolation  made  by 
fire  and  sword.  She  now  holds  out  her  hands  of  prosperity  to  all  the  country  round 
about.  A  surpassingly  beautiful  cemetery  attests  undying  devotion  to  those  who  died 
in  a  common  strife.  It  is  the  common  verdict  that  a  pleasanter  place  than  Richmond 
can  scarcely  be  found  on  the  habitable  globe.  And  now  it  truly  may  be  said,  in  her 
case,  that  defeat,  desolation,  sorow  and  death  are  swallowed  up  in  victory!  I  thank 
the  Convention  for  its  attention.  (Applause.) 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIRGIXIA.  1929 


Mr.  Barbour:  Mr.  President,  before  the  vote  is  taken  on  this  proposition  I  desire 
to  call  the  attention  of  the  committee  to  some  figures  which  I  have  compiled,  which, 
to  my  mind,  demonstrate  the  fact  that  the  deficiency,  or  rather  the  inefficiency,  of  the 
present  system  of  collecting  the  city  revenue  is  much  more  difficult  in  the  cities  than  in 
the  counties.  Before  discussing  that  branch  of  the  proposition  I  Ts-ill,  however,  call 
the  attention  of  the  committee  to  the  fact  that  this  office  is  essentially  a  State  office, 
and  not  one  in  which  the  locality  is  soleh"  interested.  If  it  were  one  in  which  the  locality 
were  solely  interested  I  would  say  let  the  people  of  the  cities  have  exactly  the  form  of 
government  that  they  want;  but  this  proposition  is  one  in  which  the  people  of  the 
State  at  large  are  interested,  because  this  is  an  officer  who  collects  the  State  revenues, 
and  we  people  of  the  counties,  as  well  as  the  people  of  the  cities,  are  interested  in 
seeing  that  we  have  an  efficient  system  for  the  collection  of  these  revenues.  I  would 
call  attention  of  the  committee  to  this  fact,  and  it  is  a  remarkable  fact,  that  notwith- 
standing that  the  representatives  from  cities  here  are  attempting  to  perpetuate  this 
system  of  collecting  of  State  revenues  in  the  cities,  they  have  themselves,  and  for  the 
collection  of  their  own  revenues,  utterly  abandoned  it. 

Mr.  Meredith:  So  far  from  asliing  that  you  shall  continue  the  present  system  of 
collection,  I  distinctly  stated  on  the  floor  yesterday  that  the  evil  here  is  in  the  system,, 
and  not  in  the  officer  who  does  the  collecting.  I  should  like  very  much  to  see  some 
remedy  by  which  the  State  revenues  can  be  collected,  but  I  do  not  think  the  remedy  lies 
along  the  lines  you  suggest. 

Mr.  Barbour:  If  this  does  not  remedy  it,  and  if  the  evil  exists,  you  point  out  the 
remedy;  you  give  us  someming  better,  and  then — 

Mr.  Meredith:  You  would  not  expect  me  to  point  out  a  thing  which  lies  purely  in 
the  power  of  the  Legislature,  as  a  mere  matter  of  the  collection  of  revenue. 

Mr.  Braxton:  Did  I  understand  the  gentleman  to  say  that  the  cities  desire  to 
continue,  for  the  collection  of  their  own  revenues,  the  sj-stem  proposed  for  the  collection 
of  the  State  revenues? 

Mr.  Barbour:  Xo,  sir.  I  said  they  had  abandoned  the  system  of  having  the 
revenues  collected  by  an  elective  officer  at  all. 

Mr.  Braxton:    But  you  do  not  provide  that  officer  shall  be  ineligible. 

Mr.  Barbour:  Yes,  sir:  and  if  you  are  willing  to  have  your  treasurer  appointed 
I  am  willing  to  apply  that  system  to  the  entire  State.  But  gentlemen  come  here  and 
tell  us  that  for  your  local  revenues  you  will  have  an  appointive  officer  to  collect  them, 
and  when  it  comes  to  the  revenues  we  are  interested  in  you  want  them  collected  by  an 
elective  officer  forever  eligible  to  re-election. 

Mr.  Braxton:  I  said  nothing  about  electing  or  appointing.  The  question  which  we 
addressed  ourselves  to  yesterday  was  whether  they  should  be  ineligible  after  two  terms 
even  regardless  of  how  he  was  elected. 

Mr.  Barbour:  I  understand  what  the  gentleman  said  yesterdav,  and  I  am  calling 
the  attention  of  the  committee  to  the  fact  that,  so  far  as  your  local  revenues  are  con- 
cerned you  are  unwilling  to  take  the  system  which  you  want  us.  of  the  counties  to 
follow  when  we  collect  our  revenues.  It  is  true  that  in  the  counties  I  think  we  have  a 
better  system  of  passing  upon  the  delinquent  list,  as  to  whether  or  not  they  shall  be 
allowed,  than  you  have  in  the  cities,  but  that  grows  out  of  the  very  nature  of  the  case 
In  large  communities  you  cannot  get  men  who  are  acquainted  with  the  affairs  of  all 
of  their  fellow-citizens.  You  cannot  reach  it  in  that  way,  where  the  cities  are  con- 
cerned. The  only  way  you  can  reach  it  is  to  make  it  to  the  interest  of  the  officer,  as 
far  as  possible,  that  he  shall  execute  his  duty,  because  no  one  man  can  be  acquainted 
with  the  financial  condition  of  all  the  people  in  the  city  of  Richmond,  and  their  ability 
to  pay,  and  the  ability  of  the  officer  to  make  them  pay  their  tax  bills,  as  is  the  case 
in  the  counties,  where  the  boards  of  supervisors  pass  upon  the  tax  bills. 

Mr.  Allen:  Did  I  understand  the  gentleman  to  say  that  the  city  collectors  are 
appointive  officers? 

Mr.  Barbour:    Yes,  sir;  I  understand  so. 
122— Const.  Deb. 


1930 


DEBATES  OF  THE  CON'STITUTIONAL  CONVENTIOIT  OF  VIRGINIA. 


Mr.  Allen:    The  gentleman  is  mistaken.    In  Richmond  he  is  elected. 
Mr.  Barbour:    I  am  glad  the  gentleman  corrected  me.    I  do  not  wish  to  mislead 
the  committees. 

Now,  the  attention  of  the  committee  has  already  been  called  to  the  marked  dif- 
ference in  the  cities  and  in  the  counties  to  the  proportion  of  the  capitation  taxes  which 
are  paid.  I  want  to  call  the  attention  of  this  committee  to  the  fact  that  in  a  large 
number  of  the  cities  of  the  Commonwealth  almost  as  great  a  disproportion  exists  when 
it  comes  to  collecting  the  other  taxes. 

Mr.  Braxton:  I  think  I  am  correct  in  saying  that  the  city  has  no  authority  over 
the  treasurer,  so  far  as  the  collection  of  the  State  revenue  is  concerned.  That  is  a 
matter  controlled  entirely  by  the  Legislature.  The  settlement  is  made  with  auditors; 
and  if  the  city  which  controls  its  own  revenues,  which  are  collected  separately  from  the 
other,  has  devised  a  means  of  settlement  which  has  been  more  efficient,  why  should 
they  be  to  blame  that  the  Legislature,  which  alone  controls  the  collection  of  the  State 
revenue  in  the  city,  has  not  adopted  a  similar  method  of  settlement  to  enforce  its  col- 
lection. 

The  point  I  wish  to  call  to  your  attention  is  that  in  the  counties  the  State  revenues 
and  the  county  revenues  are  collected  at  the  same  time,  and  the  settlements  there 
made,  by  virtue  of  the  statue  in  such  case,  is  more  for  the  collection  of  the  State 
revenue  than  for  the  county  revenue.  In  cities  it  is  different.  The  city  tax  is  made 
out  on  a  separate  tax  ticket,  and  the  city  authorities  have  been  given  no  authority  of 
law  to  supervise  the  collection  of  the  State  revenue.  If  that  system  has  been  inefficient, 
I  think  the  blame  should  rest  upon  the  Legislature  and  not  upon  the  city  authorities, 
which  have  no  authority  to  look  into  the  matter. 

Mr.  Barbour:  If  my  friend  will  pardon  me,  the  cities,  on  the  other  hand,  need  put 
none  of  their  revenues  in  the  hands  of  the  State  treasurer.  That  we  have  provided  for. 
We  are  providing  for  a  system  of  collection  of  State  revenues  in  the  cities.  You 
gentlemen  in  the  cities  can  give  the  officer  duties  in  connection  with  the  collection  of 
your  local  revenues  or  not,  as  you  choose,  so  that  it  does  not  necessarily  interfere  with 
your  locai  matters.  In  this  section  we  are  providing  for  the  collection  of  State  revenues, 
and  all  of  us  are  interested  in  the  efficiency  of  that  system. 

Mr.  Braxton:  I  wish  to  call  the  gentleman's  attention  to  the  fact  that  we  are 
making  no  opposition  to  any  method  of  settlement  you  may  suggest,  or  to  anything  that 
will  require  him  to  account  for  the  taxes  which  come  into  his  hands  or  make  him  col- 
lect the  tickets.  The  only  point  we  make  is,  that  by  turning  him  out  of  office  you  will 
not  effect  the  purpose  you  desire. 

Mr.  Barbour:  We  have  heard  that  suggestion  all  along.  It  has  been  debated  on 
the  floor  of  the  Convention,  and  time  after  time  the  Convention  has  determined  that  it 
will  accomplish  that  purpose  if  that  system  is  adopted. 

'V^Tien  the  gentleman  interrupted  me  I  was  just  about  to  call  the  attention  of  the 
Committee  to  the  disparity  between  the  delinquent  list  in  the  cities  under  this  system 
and  in  the  counties,  showing  that  the  present  systemlmay  be  more  inefficient  in  the  cities 
than  in  the  counties. 

For  the  personal  property  lists  for  the  year  1S99  the  average  of  delinquencies  in 
the  counties  is  4.9  per  cent.  Of  every  $100  of  taxation,  in  the  counties,on  an  average  of 
$4.90  of  it  is  returned  delinquent,  whilst  the  average  for  the  cities  is  $8.30.  "^A^en  we 
come  down  to  the  individual  cities,  we  find  that  in  the  cities  of  Alexandria,  of  every 
$100  of  personal  tax  assessed  $22.80  of  it  is  returned  delinquent.  Is  that  an  efficient 
system?  In  the  city  of  Bristol,  which  is  a  small  city,  of  every  $100  assessed  $27.30  is 
returned  delinquent — more  than  a  fourth  of  it.  In  the  city  of  Manchester,  of  every 
$100  of  personal  property  assessed  $17  of  it  is  returned  delinquent. 

Mr.  Meredith:  la  he  not  prepared  to  submit  that  the  failure  to  collect  does  not 
come  from  the  officer  being  a  defaulting  officer,  which  is  alleged  in  the  counties,  but 
from  the  system  of  settlement  that  the  State  has  required. 

Mr.  Barbour:    I  will  answer  my  friend  in  this  way:    It  comes  from  the  same  evil 


DEBATES  OF  THE  C0NSTITUTI02s^AL  CONVENTION  OF  VIRGINIA. 


1931 


in  both  cases,  and  not  on  account  of  the  dishonesty  of  the  officer,  either.  He  does  not 
collects  the  taxes  in  the  counties,  and  he  does  not  collect  them  in  the  cities;  but  he  uses 
the  office  for  electionering  purposes.  He  will  not  press  the  men  who  have  votes,  with 
the  result  that  in  the  counties  the  county  officers  will  not  permit  him  to  return  the 
taxes  delinquent,  and  in  that  way  he  falls  short  of  the  collections  of  his  revenue,  and 
the  counties  lose  it  on  account  of  the  system  of  settlement.  In  the  cities  he  is  permitted 
to  return  that  same  tax  delinquent,  and  the  State  loses  it.  The  evil  grows  out  of  the 
same  thing  in  both  cases.  It  simply  develops  in  a  little  different  shape,  owing  to  the 
different  system  of  settlement. 

The  gentleman  from  Lynchburg  (Mr.  Glass)  yesterday  called  attention  to  the  great 
disparity  of  personal  and  real  estate  taxes  in  the  city  of  Norfolk,  the  inference  being 
that  Norfolk  is  not  assessed  with  as  much  personal  property  as  it  should  be  assessed, 
notwithstanding  the  fact  that  in  the  city  of  Norfolk  20  per  cent,  of  its  taxes  on  personal 
property  is  returned  delinquent.  In  the  city  of  Portsmouth  23  per  cent,  of  it  is.  re- 
turned-delinquent.  And  still  the  representatives  from  the  cities  tell  us  that  this  is  an 
inefficient  system  of  collecting  taxes.  It  is  not,  and  cannot  be;  and  this  is  one  step  in 
the  direction  of  reforming  it. 

There  is  no  reason  why  the  system  adopted  in  the  counties  should  not  apply  to  the 
cities.  It  is  a  matter  of  State  policy.  The  people  of  the  entire  State  are  interested 
in  having  the  taxes  from  the  whole  State  properly  collected.  This  in  one  step  in  that 
direction,  and  I  earnestly  hope  the  Committee  of  the  \Vhole  will  uphold  the  action  of 
the  Committee  on  Cities  and  Towns  in  reporting  this  provision  in  conformity  with  the 
action  heretofore  taken  by  the  Convention  in  reference  to  the  counties. 

Mr.  Lindsay:  Mr.  Chairman,  I  made  a  hurried  examination  this  morning  of  a  few 
of  the  State  Constitutions,  and  in  reply  to  the  argument  of  the  gentleman  from  Richmond 
(Mr.  Meredith),  that  this  provision  is  in  the  nature  of  an  innovation  and  rather  against 
precedent,  I  took  the  trouble  to  note  the  provision  in  several  of  the  different  Consti- 
tutions. 

In  Delaware  the  treasurers  are  ineligible  for  more  than  one  term  in  six  years.  They 
hold  for  four  years,  and  are  ineligible  for  the  next  succeeding  term.  In  Idaho  they 
are  ineligible  after  four  years.  In  Illinois  there  is  the  same  provision.  In  Indiana  they 
are  ineligible  after  four  years  for  the  next  succeeding  term.  They  are  eligible  for  four 
years  in  six.  In  Kentucky  they  are  ineligible  in  two  years  after  their  first  term.  In 
Maryland  they  may  hold  office  for  two  years.  In  Mississippi  for  four  years.  In 
Missouri  they  may  hold  office  for  two  years,  and  are  ineligible  after  the  second  term. 
The  same  is  true  in  Montana.  In  North  Dakota  they  are  ineligible  after  four  years. 
The  same  is  true  in  Ohio  and  in  Pennsylvania.  Tennessee  gives  them  a  term  of  six 
years. 

I  have  omitted  South  Dakota  and  one  or  two  Western  States.  The  Constitution  of 
Virginia  of  1851  provided  that  sheriffs,  who  at  that  time  collected  the  taxes,  were 
ineligible  for  more  than  four  years  in  any  six,  and  were  ineligible  during  their  term  and 
for  one  year  afterwards  for  any  political  office. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  when  this  question  was  up  for  discussion 
in  Committee  of  the  Whole,  on  the  report  of  the  Committee  on  County  Organization, 
I  foresaw  just  the  discussion  we  are  now  having  in  regard  to  the  cities.  I  asked  myself 
the  question  whether  I  would  be  willing  to  vote  to  make  these  treasurers  ineligible 
after  the  second  term  in  the  cities.  After  thinking  over  that  question  carefully  I  came 
to  the  conclusion  that  the  interests  of  the  people  of  the  State  of  Virginia,  as  a  whole, 
demanded  that  provision.  Those  gentlemen  who  represent  counties  in  this  body  are  not 
here  to  make  a  Constitution  for  the  counties  of  Virginia.  Nor  are  we  who  represent 
cities  here  to  make  a  Constitution  for  the  cities  of  Virginia.  We  are  all  here  to  make 
a  Constitution  for  the  entire  State.  It  seemed  to  me  that  this  was  one  of  those 
questions  which  should  be  settled  along  broad  lines  applicable  to  all  parts  of  the  Com- 
monwealth. 

I  wish  to  call  the  attention  of  the  committee  to  the  fact  that  the  nature  and 


1932 


DEBATES  OF  THE  CONSTITUTIO]>TAL  CONVENTION  OE  VIRGINIA. 


functions  of  the  office  of  the  treasurer  are  exactly  the  same  in  the  cities  as  in  the 
counties,  and,  as  has  just  been  pointed  out  to  you  by  the  gentleman  from  Culpeper 
(Mr.  Barbour),  the  fundamental  reasons  for  making  him  eligible  was  the  same  to  both 
localities. 

The  gentleman  from  Richmond  (Mr.  Meredith)  yesterday  said  that  the  reason  of 
the  failure  on  the  part  of  the  city  treasurers  to  collect  the  personal  property  taxes  was 
due  to  the  fact  that  the  compensation  which  he  derived  from  the  collection  of  the  larger 
bills  made  it  unnecessary  for  him  to  expend  the  time  labor  required  to  collect  the 
smaller  bills. 

Mr.  Chairman,  I  believe  if  you  will  limit  the  term  of  office  of  these  treasurers  they 
will  realize  when  they  go  into  the  office  that,  in  order  to  make  it  a  paying  thing  for 
them,  they  will  have  to  get  out  of  it  all  they  can  during  the  eight  years,  and  that  they 
will  be  forced  to  the  collection  not  only  of  the  larger  bills  but  of  all  the  bills,  in  order 
to  increase  the  aggregate  of  their  compensation  for  the  two  terms.  I  think  that  is  an 
answer  to  the  objection  made  by  my  colleague  from  Richmond.  I  believe,  just  as  the 
gentleman  from  Culpeper  has  intimated,  that  one  of  the  reasons — perhaps  the  chief 
reason — for  this  great  delinquency  in  the  collection  of  taxes  in  the  cities  which  he  has 
pointed  out  is  due  to  the  fact  that  the  rigid  enforcement  of  the  laws  which  are  now  on 
the  statue  book,  and  which  are  perfectly  adequate  for  the  purpose,  would  result  in  the 
antagonism  by  the  treasurer  of  such  a  large  number  of  voters  that  he  is  unwilling  to 
place  himself  at  that  disadvantage. 

To  illustrate.  Just  take  this  question  of  the  poll-tax.  Suppose  the  treasurer  of  the 
city  of  Richmond  were  to  go  into  the  Trigg  shipyards,  the  Richmond  Locomotive  Works, 
the  Tredegar  Company's  Works,  and  the  Old  Dominion  Iron  and  Nail  works,  or  any  of 
these  large  shops  here,  and  attempt  by  a  process  of  garnishment,  or  otherwise,  to 
enforce  the  collection  of  all  the  small  bills  for  personal  property  tax  and  the  poll-tax, 
I  believe  it  would  have  a  very  serious  effect  upon  his  re-election. 

We  want,  gentlemen,  to  place  this  officer  in  an  independent  position  from  the  nature 
of  the  office  itself,  because  there  is  nothing  about  which  men  are  so  sensitive  as  about 
their  money,  and  about  those  who  attempt  to  get  their  money  from  them.  If  we  will 
limit  the  terms  of  office  of  the  treasurers  in  the  cities  I  believe  it  will  result  in  a  greatly 
increased  revenue  and  a  much  more  efficient  collection  of  the  taxes. 

I  was  very  much  in  favor  of  the  proposition  offered  by  the  gentleman  from  Nottoway 
(Mr.  Watson),  that  we  have  only  one  term — a  longer  term,  perhaps,  than  is  provided 
here — and  make  the  treasurer  ineligible  after  the  one  term;  but  that  was  voted  down. 

There  is  another  argument  by  the  gentleman  from  Staunton  (Mr.  Braxton)  against 
this  provision  as  reported  by  the  committee.  He  says,  "We  do  not  know  where  we 
could  find  another  man  to  do  this  work  in  the  city  of  Staunton."  I  have  always  heard, 
Mr.  Chairman,  and  I  know  it  to  be  a  fact,  that  the  population  of  that  city  and  of  the 
county  in  which  it  is  located  is  largely  made  up  of  the  descendants  of  Scotchmen  and 
Scotch-Irishmen,  and  I  have  never  heard  that  that  race  of  people  were  at  all  chary 
about  accepting  anything  that  was  coming  to  them.  I  have  never  heard  that  there  is 
such  a  dearth  of  men  of  business  and  of  patriotism  in  the  city  of  Staunton,  and  I  know 
there  is  not  such  a  dearth  in  the  city  of  Richmond  that  we  cannot  find  plenty  of  people, 
and  honest  men,  to  accept  such  an  office  as  this  for  eight  years. 

But  see  in  what  a  position  you  have  placed  the  small  counties  of  the  State.  I  be- 
lieve the  carrying  of  this  proposition  in  regard  to  the  counties  is  largely  due  tO'  the 
votes  of  the  city  member  supon  the  floor  of  this  commmittee.  We  say  a  little  county 
with  four  thousand  inhabitants,  engaged  in  agricultural  pursuits,  can  pick  up  a  com- 
petent treasurer  at  any  time  for  eight  years  to  step  into  the  office  of  his  predecessor, 
and  yet  that  a  city,  a  commercial  community,  with  five  thousand  people  and  upwards, 
cannot  do  the  same  thing;  I  do  not  see  how  you  can  reconcile  those  two  attitudes.  Why, 
gentlemen,  there  are  always  plenty  of  men  in  every  community  who  are  willing  to 
accept  such  an  office  as  this,  and  who  are  thoroughly  efficient  and  honest  in  the  dis- 
charge of  any  duties  which  may  be  imposed  upon  them  in  that  respect. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYEXTIOIT  OF  VIRGINIA.  1933 


It  does  seem  to  me  this  T^hole  argument  goes  to  the  question  of  broad  public  policy, 
and  that  it  should -be  settled  along  those  lines,  and  not  settled  out  of  consideration  to 
any  locality,  either  counties  or  cities. 

Mr.  Keezell:  Mr.  Chairman,  I  hope  it  will  not  be  the  pleasure  of  this  committee  to 
adopt  the  amendment  of  the  gentleman  from  Richmond  (Mr.  Wise).  As  suggested  by 
the  gentleman  from 'Richmond  (Mr.  Gordon),  I  think  we  ought  to  legislate  along  broad 
lines  in  this  Constitution.  The  question  of  whether  or  not  a  particular  friend  of  ours 
happens  to  hold  any  office  in  a  county  or  in  a  city  should  not  affect  the  question  of 
policy,  whether  it  is  a  good  or  a  bad  thing  to  prohibit  a  man  from  being  elected  beyond 
a  certain  number  of  times  to  an  office. 

If  we  believe  the  duties  of  the  office  would  be  better  discharged  for  the  whole 
people  by  limiting  his  term  we  ought  to  limit  it,  irrespective  of  our  friends  or  those  who 
hold  the  position.  If  w^e  do  not  believe  so  then  we  ought  not  in  the  Committee  of  the 
Whole  and  in  the  Convention  to  have  adopted  this  provision  in  reference  to  the  counties. 
There  certainly  is  no  difference  so  far  as  the  city  treasurers  and  county  treasurers  are 
concerned,  and  if  there  is  one  thing  w^hich  to  my  mind  has  created  more  criticism  in 
Virginia  than  anything  else,  that  has  been  done  by  the  Convention,  it  is  the  discrimina- 
tion which  the  people  of  Virginia  believe  has  been  made  between  the  counties  and  the 
cities  in  one  of  the  articles  already  adopted  by  the  Convention. 

I  do  not  think  we  can  afford  to  put  ourselves  in  the  position  of  treating  the  counties 
in  one  way  and  the  cities  in  another  way.  We  ought  to  make  a  rule,  and  if  it  is  a  good 
one  apply  it  to  them  all.  I  think  there  is  no  question  that  if  the  discussion  had  in  Com- 
mittee of  the  Whole  and  in  the  Convention,  and  the  vote  of  the  Convention  upon  the 
question,  can  be  relied  upon  at  all,  the  Convention  is  of  the  opinion  that  it  was  a  good 
thing,  so  far  as  the  counties  of  the  Commonwealth  are  concerned.  If  that  be  true  wo 
ought  to  adopt  the  rule  a.nd  apply  it  in  the  cities  as  well  as  in  the  counties. 

The  gentleman  from  Culpeper  (Mr..  Barbour),  I  think,  has  clearly  demonstrated 
that  the  very  troubles  we  are  confronted  with  in  the  counties  are  accentuated  in  the 
cities,  and  if  we  ever  expect  to  see  the  State  revenues  collected,  the  capitation  tax  and 
the  revenue  from  the  smaller  tax-payers,  we  must  have  it  done  by  an  official  who  is 
not  dependent  for  his  tenure  of  office  entirely  upon  the  whim  of  the  voters  in  whose 
interest,  or  rather  in  his  own  interest,  the  interest  of  the  State  is  frequently  lost  sight 
of. 

I  hope  it  will  be  the  pleasure  of  the  committee  to  vote  against  the  amendment  of 
the  gentleman  from  Richmond. 

Mr.  Claggett  B.  Jones:  Mr.  Chairman,  I  confess  I  cannot  see  the  force  of  the  posi- 
tion taken  by  the  gentleman  from  Richmonc'  (Mr.  Meredith)  in  asking  that  a  distinction 
should  be  made  between  the  treasurers  for  the  counties  and  the  treasurers  for  the  cities. 
I  can  well  see  if  the  State  treasurer  collected  the  revenue  for  the  municipal  govern- 
ment, where  there  might  be  some  distinction,  and  where  possibly  the  cities  might  be 
affected  by  limiting  the  term  of  office  to  two  successive  terms;  but,  as  stated 
upon  the  floor  on  yesterday  by  the  gentleman  from  Richmond  (Mr.  Meredith),  a  large 
proportion  of  the  taxes  is  collected  by  the  city  treasurers.  I  know  of  my  personal  know- 
ledge that  three-fourths,  or  certainly  two-thirds,  and  I  think  three-fourths  of  the  taxes 
paid  in  the  city  of  Richmond,  are  paid  to  the  city  collector  and  not  to  the  State  treasurer. 

How  can  it  be,  Mr.  Chairman  and  gentlemen  of  the  Convention,  that  if  the  municipal 
taxes  of  the  cities  are  paid  to  a  city  collector  that  a  term  of  office  limited  to  two  succes- 
sive terms  for  the  cities  can  work  a  hardship  of  disadvanage  to  the  cities  if  it  does  not 
work  a  disadvantage  or  hardship  to  the  counties?  I  cannot  see  for  the  life  of  me  why 
the  cities,  simply  because  they  are  municipalities  and  have  a  much  larger  taxation  to' 
pay  than  the  counties,  can  be  affected,  when  they  have  their  own  peculiar  municipal 
officer  to  collect,  control  and  disburse  the  taxes  which  are  collected  for  municipal  pur- 
poses. 

Therefore,  it  does  seem  to  me,  Mr.  Chairman  and  gentlemen  of  the  committee,  there 
Is  no  reason  why  a  distinction  should  be  made  between  the  counties  and  the  cities  in 


1934 


DEBATES  OF  THE  CONSTITUTION'AL  CONVENTION"  OF  VIEGINIA. 


regard  to  the  matter  of  the  treasurer.  I  hope  the  Committee  of  the  Whole  will  see 
proper  to  put  them  all  upon  the  same  footing. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  the  city 
of  Richmond  (Mr.  Wlise),  eliminating  the  clause  providing  for  the  eligibility  of  treasurers. 

The  motion  was  rejected. 

Section  7,  relating  to  city  councils,  was  then  read  and  amended  slightly  on  motion 
of  Mr.  Brooke. 

Mr.  Harrison:  I  desire  to  add,  at  the  end  of  line  23,  these  words:  "But  nothing 
herein  shall  interfere  with  the  present  charters  of  the  cities." 

My  object  in  that,  Mr.  Chairman,  is  to  retain  to  the  various  cities  their  present 
method  of  selecting  the  councils  of  the  cities.  In  the  city  I  have  the  honor  to  represent 
here  the  method  has  always  been  to  have  twelve  councilmen,  of  whom  three  are  selected 
each  year,  so  that  the  council  retains  a  large  element  of  conservative  citizens  who  are 
familiar  with  the  business  interests  of  the  town.  There  is  no  qualification  as  to  real 
estate  or  any  other  property  qualification.  It  has  worked  satisfactorily  to  the  people 
of  that  city  for  one  hundred  and  twenty-five  yeara.  The  people  have  gotten  familiar 
with  it.  They  are  used  to  that  method  of  electing  their  own  council.  They  do  not  want 
two  bodies.  They  do  not  understand  the  system  of  having  two  bodies,  and  they  do( 
not  desire  it.  They  do  not  want  any  property  qualifications  on  any  member  of  the 
council.  The  largest  tax-payers  in  the  city  of  Winchester  to-day  would  be  disqualified 
from  sitting  in  the  town  council  if  it  were  required  that  he  should  be  a  freeholder  and 
possess  real  estate  in  the  city  of  Winchester. 

I  protest  against  this  attempt  to  change  what  has  been  the  established  order  of 
things.  It  excites  antagonisms  to  the  Constitution  which  are  wholly  unnecessary.  I 
think  it  ought  to  be  left  to  the  localities  to  determine  what  changes  they  desire  in  their 
own  municipal  affairs.  Why  should  there  be  put  upon  the  smaller  cities  of  the  State 
a  system  of  government  they  do  not  want;  which  will  not  work  satisfactorily  to  them. 
We  have  in  the  town  council  of  the  city  of  Winchester  as  conservative  a  set  of  men 
as  can  be  selected  in  that  town,  and  the  qualification  that  is  attempted  to  be  put  upon 
their  council  now  would  turn  out  at  least  three-fourths  of  them  and  disqualify  them 
from  sitting  in  the  council.  Not  only  that,  but  it  would  qualify  and  render  it  almost 
necessary  to  elect  men  whom  the  people  do  not  want  elected  and  do  not  desire  to  have 
representing  them  in  the  council. 

I  think  we  ought  to  leave  old  things  alone,  unless  there  is  something  essential  ta 
be  gained  by  it;  that  we  ought  to  leave  to  the  people  those  things  they  are  used  to  and 
familiar  with. 

If  I  understand  anything  about  the  object  of  having  municipal  government.  It  is  ta 
give  a  community  the  right  to  govern  itself  in  the  way  in  which  it  desires  to  be 
governed.  It  is^  purely  and  almost  entirely  a  fiscal  arrangement,  in  order  that  they 
may  control  their  fiscal  affairs  to  suit  the  people  of  the  locality. 

I  think  the  tax-payers  of  those  local  communities  ought  to  be  heard  here  against 
theories  of  government  which  have  not  been  put  in  practical  effect,  so  far  as  they  are 
concerned.  I  have  a  telegram  here  from  the  city  council  of  the  city  of  Winchester, 
informing  me  they  had  a  meeting  last  night  of  the  city  council  and  have  forwarded  here 
their  protest  against  the  proposed  changes  as  suggested  by  this  report.  That  protest 
has  not  yet  reached  me,  and  I  am  unable  to  lay  it  before  the  committee;  but  I  desire 
to  do  so  when  it  shall  reach  me.  The  meeting  was  only  held  last  night,  and  of  course 
it  has  not  had  time  to  arrive;  but  I  am  informed  that  they  object  to  this  method  of 
electing  their  town  council;  they  object  to  the  change  that  is  suggested  in  the  way  they 
have  elected  their  town  council  from  the  time  almost  that  they  have  been  organized 
intO'  a  city,  and  I  think  their  wishes  should  govern  the  committee  in  this  matter. 

Mr.  Robertson:  Mr.  Chairman,  I  do  not  desire  to  say  very  much  in  regard  to  this 
matter,  but  as  a  part  of  my  constituency  consists  of  one  of  the  smaller  cities  in  the 
Commonwealth  I  think  it  is  due  to  my  constituents  that  I  should  say  something  on  the 
subject. 


DZ^ATZS  OF  THE  COXSTITTTIOXAL  COXTE^~TIO^"  OF  TIEGI^'IA. 


1935 


I  heartily  concur  in  my  friend  from  Winchester  (Mr.  Harrison)  has  said  about 

this  matter.  T\"lLile  I  have  been  in  favor,  in  almost  every  particular,  of  depriving  the 
Legislature  of  the  power  to  pass  special  laws  for  special  parts  of  the  State,  for  special 
purposes  or  for  individuals,  my  opinion  is  that  there  is  one  exception  to  that  rule,  if 
not  more  than  one,  and  that  exception  is  the  question  we  have  now  under  consideration. 

I  believe  our  city  governments  ought  to  be  largely  what  the  people  of  those  cities 
desire  them  to  be.  I  do  not  believe  we  should,  in  this  Constitution,  undertake  to  form 
the  framework  of  city  governments  and  force  it  on  all  of  the  communities  of  the  State, 
when  it  is  a  well-known  fact  that  the  conditions  in  every  municipal  gO'vernmeni  in  the 
State  differ  widely.  VvTiat  might  suit  the  city  of  Richmond  and  the  city  of  Norfolk 
would  not  suit  smaller  cities  in  the  lirst  place,  but  when  you  come  down  to  cities  of  the 
same  class,  a  charter  which  would  suit  the  citizens  of  the  city  of  L::^'nchburg,  for  instance, 
or  the  citizens  of  the  city  of  Petersburg,  might  be  totally  unfit  for  the  government  of 
the  city  that  I  represent  in  part,  because  the  character  of  the  population,  the  character 
of  the  work  done  there  in  the  way  of  city  improvements  are  totally  different.  Roanoke 
is  a  new  city.  All  kinds  of  questions  come  up  there  that  the  older  cities  have  probably 
settled  years  ago,  and  the  kind  of  government  they  need  might  not  be  at  all  suitable 
for  us. 

We  have  undertaken-  there — and  it  has  been  a  work  to  which  the  best  citizens  of 
the  town  have  certainly  given  a  great  deal  of  thought  and  attention — to  get  a  charter 
perfected  which  would  suit  the  needs  of  our  people.  The  charter  we  have  at  present 
does  suit  the  people.  There  is  no  complaint  of  it,  though  it  is  a  city  of  23,S00  people, 
by  the  last  census,  and  we  claim,  of  course,  to  have  a  great  many  more  than  that. 
I  think  we  have  considerably  more.  Although  it  is  a  city  of  that  size  we  have  only  one 
chamber  in  the  council.  We  have  a  common  co^uncil  and  nothing  else.  Our  people  have 
never  indicated  the  slightest  dissatisfaction  with  that  system.  On  the  contrary,  everv- 
change  that  has  been  made  in  the  charter — and  I  believe  some  changes  have  been  made 
at  nearly  every  session  of  the  Legislature — that  feature  of  the  matter  has  been  retained. 
I  believe  it  would  create  dissatisfaction  among  our  people  to  make  this  change.  They 
cannot  see  any  good  in  it.  The  system  they  have  suits  them,  and  because  gentlemen 
think  a  board  of  aldermen,  along  with  the  common  council,  will  produce  a  conservative 
body,  as  a  matter  of  theory",  is  no  reason  why  they  should  impose  that  system  on  a 
local  community  when  they  :find  that  the  other  suits  them  and  has  never  done  any  harm. 

But  that  feature  of  the  matter  I  do  not  object  to  so  much.  It  is  the  other  feature 
about  which  I  wish  to  speak.  I  am  utterly  opposed  to  this  freehold  qualification.  If 
we  do  have  a  second  chamber,  it  does  seem  to  me  that  that  theory  of  producing  con- 
servatism in  a  legislative  body  is  one  that  might  have  been  a  very  good  one  in  the  past, 
in  the  old  days  when  nearly  everybody  of  any  importance  owned  a  freehold,  and  when 
it  was  considered  an  honor  for  a  man  to  be  a  freeholder,  when  the  freehold  qualification 
was  established  as  a  right  of  sufi'rage.  It  was  probably  a  good  thing  then  to  make  a 
freehold  qualification  for  holding  office,  becuse  it  embraced  the  class  of  people  which 
the  law  considered  were  worthy  not  only  of  holding  office,  but  of  voting.  But  that  old 
idea  of  the  holding  of  land  being  something  that  made  a  man  more  conservative  and 
a  better  citizen  has,  in  modern  times,  been  absolutely  done  away  with.  This  is  a  com 
mercial  age,  and  that  old  feudal  idea  about  land  has  been  exploded. 

In  the  Commonwealth  of  Virginia,  I  am  glad  to  say,  we  are  rapidly  getting  out  o 
those  old  prejudices  and  ideas,  that  simply  because  a  man  owns  land  he  is  better  and 
more  conservative  than  a  man  who  owns  other  kinds  of  property.  I  venture  to  say  in 
every  city  of  the  Commonwealth  some  of  our  best  citizens  prefer  not  to  invest  their 
money  in  land.  Our  best  merchants  do  not  own  the  stores  in  which  they  do  business, 
do  not  ov,-n  the  residences  in  which  their  families  live.  They  prefer  to  pay  rent  to  other 
people  who  make  a  business  of  building  houses  in  the  cities  and  ov^ming  land.  A  large 
part  of  our  population  in  eyery  city  of  the  Commonwealth — and  I  think  it  is  peculiarly 
true  in  my  own  city,  where  the  very  best  people  do  not  own  one  lick  of  land — would  be 


1936 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTIOIn  OE  VIRGINIA. 


excluded  from  sitting  in  this  higher  chamber,  where  we  are  supposed  to  have  the  con- 
servative element  of  our  city  council. 

I  believe  that  idea  is  a  false  one.  I  do  not  believe  it  will  bring  about  the  results 
that  are  anticipated  for  it.  My  experience  is  that  people  who  own  real  estate  are  na 
more  conservative  than  those  who  own  bonds  and  things  of  that  kind.  A  good  many 
people  go  into  the  real  estate  business  and  build  a  great  lot  of  houses  in  the  cities, 
who  are  speculators,  who  live  at  a  distance  and  do  not  care  anything  about  the  welfare 
of  the  city,  and  that  the  people  who  are  renting  those  houses,  and  are  engaged  in  the  legit- 
imate business  of  the  city,  are  largely  interested  in  its  welfare  and  are  more  conserva- 
tive than  the  people  who  own  the  property. 

You  cannot  guage  a  man's  conservatism  by  the  property  he  owns  at  the  present 
day.  I  do  not  think  a  property  qualification  ought  to  be  brought  back  here  into 
our  Constitution  when  our  fathers  got  rid  of  it  absolutely  and  entirely  away  back  in 
1851.  I  do  not  see  why  we  should  introduce  it  here  into  our  city  governments  when  we 
allow  the  State  Senate  of  Virginia  to  be  filled  with  men  whether  they  own  any  property 
at  all  or  not.  Why  should  we  have  the  distinction  made  between  the  board  of  aldermen 
of  the  city  and  the  State  Senate,  which  passes  on  the  grave  affairs  of  the  whole  Com- 
monwealth?   I  cannot,  for  my  life,  see  why  that  should  be. 

I  respectfully  submit  that  that  feature  of  the  report  certainly  ought  to  be  stricken 
out.  Asi  to  the  other  I  am  heartily  in  accord  with  what  my  friend  from  Frederick  has 
said.  I  give  notice  now  that  after  these  amendments  are  passed  on  I  shall  offer  a  sub- 
stitute providing  that  this  whole  section  be  stricken  out.  I  do  not  believe  that  the  Con- 
stitution should  go  into  the  details  of  what  we  shall  have  in  the  way  of  city  government. 
It  is  a  matter  that  ought  to  be  left  to  the  Legis-lature ;  and  I  think  we  ought  to  permit 
the  cities  to  retain  the  charters  they  have  at  present,  and  let  the  Legislature,  if  it  sees 
fit,  change  them  from  time  to  time. 

Mr.  Ayers:  I  desire  to  raise  a  point  of  order  on  the  amendment  offered  by  the 
gentleman  from  Frederick  (Mr.  Harrison). 

Mr.  Harrison:  I  will  withdraw  it  and  put  it  in  different  shape,  if  the  gentleman 
will  permit  me.  As  I  offered  it  before,  "nothing  herein  shall  interfere  with  the  present 
charters  of  the  cities,"  it  looks  as  if  we  were  doing  something  and  undoing  it  at  the 
same  time;  so  I  wish  to  change  it  in  this  way:  Strike  out  all  the  words  beginning  with 
the  words  "composed  of  two  branches"  down  to  the  sentence  in  line  13,  beginning  "No 
member,"  and  insert  these  words:  "There  shall  be  in  every  city  a  council  to  be  com- 
posed as  may  be  prescribed  by  law."  Then,  after  that,  continue  the  sentence:  "No' 
member  of  such  council  shall  be  eligible  during  the  term  of  his  office  as  said  member, 
or  for  one  year  thereafter,  to  any  office  to  be  filled  by  such  council,  by  election  or 
appointment."  I  think  that  is  a  good  provision.  Then  strike  out  the  rest  of  the 
sentence,  which  has  already  been  done,  virtually,  by  the  chairman  of  the  committee. 

Mr.  Summers:  Mr.  Chairman,  being  a  member  of  this  committee,  I  propose  toi 
show  my  consistency.  I  read  from  the  report  of  the  committee:  "We  reserve  the 
right  to  object  to  the  freehold  qualification  of  members  of  the  lesser  branch  of  the 
city  councils,  as  provided  in  Section  7."  That  is  signed  by  Timothy  Rivers,  D.  C. 
O'Flaherty,  John  C.  Summers,  J.  W.  Marshall  and  Otway  S.  Allen,  We  do  not  object 
to  the  section  except  in  this  particular,  and  I  wish  to  offer  the  following  amendment; 
Strike  out  the  words  beginning  with  "the  less,"  in  line  9,  down  to  "dollars,"  in  line  13. 

Those  are  the  lines  that  we,  the  objectors  on  the  committee,  reserved  the  right  to 
object  to,  I  ask  that  the  committee  will  sustain  our  objection  by  striking  out  those 
lines. 

The  chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Win- 
chester (Mr.  Harrison)  to  strike  out  certain  words  and  insert  certain  words  in  Section 
7. 

Mr.  Harrison:  I  withdraw  the  motion  to  strike  out  the  words  beginning  in  line 
16  to  the  end  of  the  section,  leaving  the  motion  to  strike  out  beginning  with  the  word 
"composed"  down  to  the  word  "dollars,"  in  line  13,  and  insert  the  words  "to^  be  com- 
posed as  may  be  prescribed  by  l^w." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA.  1937 


The  Chairman:    The  Secretary  will  read  the  proposed  amendment. 

Mr.  James  W.  Gordon:  The  gentleman  from  Roanoke  (Mr.  Robertson)  saj^s  that 
he  Is  in  favor  of  striking  out  this  entire  section,  and  gives  as  a  reason  for  it  that  there 
seems  to  have  been  an  effort  on  the  part  of  this  committee  to  unduly  tie  the  hands  of 
these  cities  of  the  Commonwealth  and  to  subject  them  to  hard  and  fast  rules.  I  think 
I  speak  for  each  member  of  that  committee  when  I  say  that  they  not  only  had  no 
intention  of  doing  any  such  thing,  but  that  I  can  prove  from  that  report  that  they  did 
not  do  it. 

Mr.  Robertson:  If  the  gentleman  will  permit  me  I  wish  to  say  that  I  did  not  intend 
by  any  words  I  uttered  to  cast  any  reflection  upon  the  members  of  that  committee.  I 
was  simply  arguing  what  I  thought  would  be  the  result  if  the   amendment  was  adopted. 

Mr.  James  W.  Gordon:  I  understood  what  the  gentleman  meant — that  he  thought 
the  effect  of  this  provision,  as  reported  by  the  committee,  would  be  to  create  too  much 
rigidness  about  the  government  of  the  cities  of  the  Commonwealth. 

It  was  the  object  of  the  committee,  Mr.  Chainnan,  to  present  to  the  Convention 
a  framework  of  government,  applicable  to  all  cities  in  those  particulars  which  were 
of  fundamental  importance,  and  then  to  leave  these  local  communities  the  largest  degree 
of  self-government  under  those  general  provisions.  It  was  recognized,  and  I  believe 
will  be  recognized,  by  the  Committee  of  the  Whole  to  be  an  essential  thing  that  there 
should  be  in  each  city  a  chief  executive  with  certain  fundamental  powers  and  duties 
necessary  and  sufficient  to  perform  the  functions  tha.t  would  naturally  attach  to  the 
office.  Therefore,  this  committee  provided  for  a  mayor,  with  a  veto  power  and  a  power 
of  suspension  and  removal.  It  was  recognized  that  it  was  essential  in  each  one  of  these 
communities  that  there  should  be  a  legislative  branch  of  the  government.  And  they 
have  attempted  in  this  section  to  provide  such  a  branch  of  government  as  they 
believe  will  best  carry  out  the  purpose  of  that  department. 

Under  the  present  municipal  charters,  as  they  exist  in  the  different  cities  of 
the  Commonwealth,  some  of  them  have  a  council  composed  of  one  body  only.  Others 
have  a  council  composed  of  two  bodies. 

:\Ir.  Dunaway:  How  many  cities  of  the  Commonwealth  have  two  branches  in  their 
council? 

Mr.  James  W.  Gordon:    I  think  there  are  three  or  four,  if  I  am  not  mistaken. 

It  appeared  to  the  committee,  Mr.  Chairman,  that  when  any  community  reached 
the  population  of  5,000  there  would  then  begin  to  come  bofre  its  council  for  considera- 
tion and  decision  questions  which  demanded  the  most  careful  thought  and  the  most 
deliberate  and  conservative  action.  We  have  fixed  the  population  of  cities  at  5.000 
and  more,  and  this  system  which  we  propose  applies  everywhere  to  those  communities. 
"^Tien  a  city  reaches  that  population  there  are  constant  applications  made  to  its  coun- 
cil for  franchises,  for  the  use  of  its  streets  and  for  the  use  of  public  places;  franchises 
in  the  nature  of  street  railways,  of  waterworks,  electric  light  and  power  works,  gas 
works  and  various  other  public  utilities. 

It  appeared  to  us  that  under  those  conditions  it  was  necessary,  for  the  proper 
safe-guarding  of  the  interests  of  all  the  community,  that  these  franchises  should  not 
be  rushed  through  a  cotmcil  of  one  body  only,  but  that  the  consideration  of  those  impor- 
tant questions  should  be  subjected  to  the  deliberation  of  two  bodies,  so  that  the  interests 
of  the  community  might  be  properly  protected.  And  I  believe  that  if  you  will  consider 
the  abuses  which  have  existed  in  the  past,  and  which  may  occur  in  the  future  under 
applications  for  city  franchises,  you  will  recognize  the  necessity  of  this  bicameral  sys- 
tem. 

I  think,  Mr.  Chairman,  that  it  is  recognized,  as  was  stated  by  the  chairman  of  the 
Committee  on  City  Organization  on  this  report,  that  the  municipal  problem  is  a  very 
trying  one;  is  perhaps  the  most  complicated  one  in  our  system  of  government,  and  the 
great  effort  and  aim  of  all  municipal  reformers  is  to  secure  greater  conservatism  in 
the  management  of  city  affairs.  We  have  belived  that  that  conservatism  would  be 
greatly  enhanced  by  not  only  having  these  two  branches  of  the  council,  but  by  making 


1938  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


only  free-holders  eligible  to  the  smaller  branch.  There  are  many  ways  in  which  the 
financial  interests  of  these  communities  come  up  before  these  city  councils  for  determi- 
nation, not  only  in  the  matter  of  granting  franchises,  but  in  the  matter  of  street 
improvements,  which  is  a  very  important  matter. 

Now,  when  the  council  attempts  to  lay  a  tax  upon  the  property  of  its  citizens  for 
street  improvements  in  the  arbitrary  way  it  is  done,  it  is  an  extremely  essential  thing 
for  the  protection  of  the  people  of  those  cities  that  there  should  be  in  at  least  one  branch 
of  the  council  men  who  feel  a  personal  interest  in  that  matter,  so  that  the  interests  of 
the  citizens  may  not  be  frittered  away  unduly,  and  that  result  can  only  be  secured  by 
having  in  one  branch  of  the  council  men  who  have  real  estate  which  would  be  affected 
by  these  improvements.  A  man  that  has  stocks  and  bonds  would  care  nothing  about  it. 
A  man  who  owns  other  classes  of  personal  property  would  care  nothing  about  it.  But 
the  man  who  has  felt  the  shoe  pinch  himself  does  realize  it,  and  he  feels  that  when  he 
votes  to  lay  street  assessments  upon  the  property  of  his  neighbor  it  is  a  matter  in 
which  he  is  vitally  interested,  because  it  may  effect  himself. 

Mr.  Chairman,  I  know  perfectly  well  that  neither'  the  acquisition  nor  the  possession 
of  wealth  makes  men  virtuous.  I  know  that  some  of  the  greatest  rascals  are  men  of 
the  largest  wealth,  and  some  of  the  most  patriotic  and  virtuous  and  high-minded  men 
are  those  who  have  been  subjected  to  misfortune  and  who  have  never  been  able  to 
acquire  anything,  or  have  lost  what  they  have  acquired.  But  yet  we  recognize  as  a 
principle  that  nothing  in  the  world  is  so  conservative  as  money,  and  that  nothing  soi 
tends  to  make  a  man  conservative  as  the  possession  of  property. 

It  was  for  these  reasons  that  the  committee  felt  that  it  was  justified,  not  only  in 
presenting  this  plan,  but  in  urging  it  upon  the  attention  of  this  committee. 

The  gentleman  from  Roanoke  (Mr.  Robertson)  say  he  wants  this  section  stricken 
out.  It  seems  to  me  that  this  provision  is  of  such  manifest  propriety  and  importance 
that  his  motion  will  receive  no  favorable  consideration  in  this  committee. 

Just  one  word  more.  In  the  consideration  of  this  whole  question,  gentlemen,  I 
would  have  you  remember  that  a  city  is  something  greater  than  a  mere  arm  of  the 
government.  It  is  a  public  corporation  with  governmental  duties,  but  it  is  also  a  quasi- 
private  corporation  in  certain  of  its  duties  and  functions.  This  distinction  is  very 
clearly  drawn  in  the  eminent  work  of  Judge  Dillon  on  Municipal  Corporations  and  it 
is  borne  out  by  the  decisions  of  the  courts.  There  are  peculiar  duties  and  obligations 
and  functions  resting  upon  these  municipal  governments  growing  out  of  their  close 
community  of  interests.  As  you  know,  the  city  is  charged  with  the  maintenance  of  its 
streets,  and  so  rigidly  is  it  charged  with  the  maintenance  of  the  condition  of  its  streets 
that  it  can  be  held  accountable  for  damages  to  those  injured  by  defects  in  them.  So 
it  seems  to  me  that,  in  considering  this  question,  we  ought  to  proceed  along  broad  lines 
and  try  to  lay  down  principles  applicable  to  the  whole  State  and  what  will  best  conserve 
the  interests  of  all  these  communities. 

Mr.  Dunaway:  Mr.  Chairman,  I  shall  support  the  amendment  that  has  been  offered 
by  the  gentleman  from  Winchester  (Mr.  Harrison).  So  far  the  addresses  have  been 
made  by  gentlemen  representing  cities.  As  I  do  not  represent  a  city  I  desire  to  state 
how  at  least  one  member  from  the  country  regards  this  question. 

So  far  as  I  am  concerned  I  desire  that  the  citizens  of  our  cities  shall  be  pleased 
with  the  Constitution  that  we  shall  make  in  respect  to  their  organization  and  govern- 
ment. Now,  sir,  if  the  amendment  prevails  no  harm  can  be  done,  no  injury  to  any 
city  in  the  Commonwealth.  If  the  amendment  prevails  those  cities — ^some  three  or  four 
in  the  State — that  have  now  two  branches  in  their  council  may  continue  to  have  those 
two  branches,  but  if  we  adopt  the  section  as  it  comes  from  the  committee  we  shall 
force  upon  all  the  cities  of  the  Commonwealth  two  branches  in  their  city  councils.  We 
know,  because  we  have  it  stated  upon  the  floor,  that  at  least  two  of  these  cities  are 
opposed  to  having  it  forced  upon  them  and  I  will  not  give  my  vote  for  forcing  upon  the 
city  of  Winchester  or  the  city  of  Roanoke  a  provision  in  their  city  charters  that  their 
people  do  not  want. 


DEBATES  OF  THE  COXSTTTUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


1939 


Mr.  Carter:  Mr.  Cliairman,  I  desire  to  inquire  whether  the  following  amend- 
ment would  not  be  satisfactory^  to  the  gentleman  from  Winchester:  In  line  2,  after 
the  words  "composed  of,"  insert  the  words  "of  one  or  two  branches,  as  may  be  pre- 
scribed by  law,"  so  as  to  leave  that  question  to  the  Legislature.  The  section  would 
then  read:  "There  shall  be  in  every  city  a  city  council,  composed  of  one  or  two 
branches,  as  may  be  prescribed  by  law,"  and  then  continue  down  to  the  ninth  line,  and 
commence  there  before  the  word  "the."    Would  that  be  satisfactory? 

Mr.  Harrison:  That  would  be  satisfactory  to  me,  except  that  I  want  to  reach  the 
point  made  by  the  gentleman  from  Richmond  (Mr.  Meredith),  that  a  vote  shall  be  taken 
on  the  two  propositions  separately.  I  accept  the  amendment  down  to  the  first  division 
and  leave  the  other  amendment  to  come  up  as  an  independent  amendment  after  we  have 
voted  on  this. 

Insert  after  the  word  "of"  the  words  "one  or"  and  after  the  word  "members,"  in 
line  3,  insert  the  words,  "as  may  be  prescribed  by  law."  The  section  would  then  read: 
"There  shall  be  in  every  city  a  city  council,  composed  of  one  or  two  branches  having  a 
different  number  of  members,  as  may  be  prescribed  by  law,  whose  powers  and  terms  of 
office  shall  be  prescribed  by  law." 

Mr.  Meredith:  Mr.  Chairman,  I  desire  to  call  the  attention  of  the  body  to  the 
danger  into  which  we  are  putting  these  minor  cities.  I  think  it  must  be  a  matter  of 
very  grave  doubt  with  any  man  familiar  at  all  with  municipal  affairs  as  to  whether  any 
community  of  people  as  small  in  number  as  5,000  ought  to  have  a  city  government.  I 
think  those  who  are  familiar  with  it  will  feel  rather  that  they  ought  not  to  have  it. 
That  it  is  intrusting  to  them  a  power  that  they  ought  not  to  exercise  and  for  which  they 
have  no  necessity.  If  you  look  over  the  cities  of  the  Commonwealth  you  will  find  that, 
with  some  rare  exceptions,  most  of  them  have  been  on  the  eve  of  bankruptcy  several 
times  by  reason  of  the  fact  that  the  expenses  attendant  upon  the  administration  of  a 
city  government  are  so  large  that  the  small  population  of  5,000  frequently  cannot  bear 
the  burden. 

Mr.  Harrison:  Mr.  President,  that  does  not  apply  to  Winchester  in  any  sense. 
It  never  has  applied  to  that  city.  We  have  the  lowest  tax  rate  of  any  community, 
large  or  small,  in  the  State  of  Virginia. 

Mr.  Meredith:  I  did  not  say  it  applies  to  any  particular  municipality,  but  .1  do 
respectful!}^  submit  that  when  we  are  drawing  a  Constitution  for  the  working  of  the 
Commonwealth  through  its  municipalities,  which  are  simply  hand-maids  of  the  general 
government,  we  ought  to  have  a  general  principle  and  not  be  guided  by  any  particular 
locality,  however  successful  it  may  have  been.  Winchester  may  have  been  able  to 
avoid  the  difficulties  that  other  municipalities  of  the  same  size  have  been  troubled  with, 
but  that  iS:  no  reason,  I  respectfully  submit,  why  we  should  legislate  with  a  view  of  the 
success  of  any  particular  town,  instead  of  along  the  lines  of  some  general  principle. 

Mr.  Robertson:  Suppose  that  general  principle  may  be  injurious  at  some  particular 
time.    Do  you  insist  on  putting  it  in  because  it  is  a  good  thing  for  other  cities? 

Mr.  Meredith:  I  undoubtedly  say  that,  as  to  the  constituent  elements  of  a  munici- 
pality, there  ought  to  be  general  lines  of  government. 

I  wish  to  call  attention  to  this:  These  are  not  private  corporations,  but  corpo- 
rations which  are  presumed  to  live  as  long  as  the  State  lasts,  and  that  we  ought  to  so 
legislate  for  them  in  their  infancy  that  they  cannot  so  hamper  and  ruin  and  destroy 
themselves,  that  they  may  be  injured  for  long  periods  of  time.  We  ought  to  require 
that  the  government  of  a  small  municipality  shall  be  so  constituted  that  it  will  have 
the  best  protection,  just  as  the  larger  cities  will,  in  order  that  it  may  not  get  into 
difficulties  which  it  may  never  overcome,  or  only  after  long  years  of  struggle. 

I  think  that  it  is  a  fair  proposition  that  we  should  recognize  that  they  are  not 
private  corporations,  but  assistants  and  ancillaries  to  the  State  government.  We 
should  adopt  such  a  system  for  these  cities  that  they  cannot  be  injured  by  indiscretions 
and  by  not  seeing  fully  the  dangers  in  which  they  are  put. 

Now,  Mr.  Chairman,  there  can  be  no  reason  why  any  city,  any  body  of  people  large 


1940 


DEBATES  OF  THE  CONSTITUTIO^tal  CONVENTION"  OF  VIRGINIA. 


enough  to  have  a  city  government,  cannot  have  people  enough  to  have  two  branches 
of  the  council.  If  they  have  population  enough  for  a  city  there  can  be  no  reason  why 
they  cannot  have  two  branches  of  government.  The  only  question  is,  whether  two 
branches  are  a  better  protection  to  municipalities  than  one  branch.  We  recognize  it 
in  our  State  government.  We  recognize  the  necessity  of  such  check  in  the  formation  of 
the  Legislature.  I  submit  that  the  dangers  in  municipalities  are  just  as  great,  if  not 
greater.  Certainly  there  is  more  hasty  legislation,  because  these  local  legislative  as- 
semblies meet  every  month,  and  frequently  oftener,  and  legislation  is  hastily  and  with- 
out due  consideration  passed  through  them.  Therefore,  I  say  that  if  there  is  any  leg- 
islative body  which  should  have  a  check  upon  it  it  is  the  mmunicipal  legislative  body, 
and  I  do  not  see  how  a  check  can  be  had  without  having  two  branches  in  their  city 
governments. 

Now,  what  objection  has  been  offered  to  this  system  of  government,  except  the 
statement  that  the  city  of  Winchester  has  been  accustomed  to  one  branch?  Now,  ought 
we  not  to  require  that  any  number  of  people  that  we  regard  large  enough  to  have  a 
city  form  of  government  should  conform  to  the  best  form  of  city  government.  If  it  is 
not  the  best  form  let  us  strike  it  out  altogether. 

It  ought  not  to  be  forced  upon  any  city  unless  it  is  a  proper  principle  of  govern- 
ment; and.  likewise,  simply  because  the  cities  msiy  have  been  able  to  avoid  some  of 
the  dangers  they  should  not  be  left  with  only  one  branch  for  the  future  if  it  is  not  a 
proper  principle. 

Mr.  James  W.  Gordon:  I  wish  you  would  call  attention  to  the  fact  that  we  are  not 
legislating  for  these  cities  as  they  are  at  present  ,but  we  are  anticipating  for  their 
growth. 

Mr.  Meredith:  I  say  that  we  are  legislating  for  the  future  as  to  all  municipalities, 
because  they  are  presumed  to  grow  and  to  last,  and  to  continue  for  a  long  time,  and  for 
us  to  frame  here  a  system  by  which  a  municipal  government  may  start  wrong  I  respect- 
fully submit  would  be  unwise. 

Mr.  Glass:  Is  it  a  fair  assumption  that  the  municipal  government  of  all  the  cities 
in  Virginia,  except  the  city  of  Richmond  and  the  city  of  Norfolk,  have  started  wrong, 
when  we  have  experienced  no  trouble  whatever,  while,  from  the  Gentleman's  own 
admission,  you  have  had  a  great  deal  of  trouble.  I  think  the  presumption  is  wrong  if 
you  are  going  against  what  is  recognized  as  a  principle  of  government.  The  question 
is,  is  it  a  wise  provision?  I  do  not  mean  to  say  that  you  have  not  avoided  the  difficulties 
and  dangers  that  lay  across  your  path. 

Mr.  Meredith:  The  question  is  simply  whether  we  shall  lay  down  in  this  Consti- 
tution a  recognized  principle  of  government  as  to  municipalities  that  claim  to  have  a 
population  sufficient  to  have  a  city  government.  It  may  be  a  great  evil  in  allowing 
5,000  people  to  have  a  city  government,  but  if  we  do  we  ought  to  lay  it  down  that  it 
shall  be  under  governmental  principles  that  are  recognized  as  correct. 

Mr.  George  K.  Anderson:  Mr.  Chairman,  I  wish  to  say,  as  a  member  of  this  com- 
mittee, that  when  this  question  came  up  in  the  committee  I  felt  very  much  as  my  friend 
from  Lancaster  (Mr.  Dunaway)  feels  now.  I  felt  that  if  the  city  of  Winchester  wanted 
five  councilmen,  and  wanted  to  elect  them  from  the  citj'-  at  large,  it  ought  to  be  allowed 
to  do  so;  that  if'  the.  city  of  Lynchburg  wanted  a  single  chamber,  and  wanted  to 
elect  them  by  wards,  it  ought  to  be  allowed  to  do  so.  But,  after  carefully  considering 
the  arguments  that  were  advanced  by  other  members  of  the  committee  and  by  members 
of  the  Municipal  League  of  the  United  States  who  apeared  before  us,  I  changed  my 
views  with  reference  to  that  matter,  and  I  want,  as  briefly  as  I  may,  to  give  some  of  the 
reasons  which  induced  me  to  that  change. 

I  asked  myself  this  question:  What  necessity  is  there  for  having  but  one  system? 
I  could  not  answer  it.  Certainly  a  system  that  is  suited  for  making  the  laws  of  the 
city  of  Richmond  ought  to  be  suited  for  the  same  purpose  so  far  as  the  city  of  Lynch- 
burg is  concerned. 

One  of  the  main  objects  of  this  body  is  to  relieve  the  Legislature  of  work.    If  the 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  1941 

amendment  of  my  friend  from  Winchester  shall  prevail  it  will  be  essentially  necessary 
that  every  city  in  the  Commonwealth  shall  get  from  the  Legislature  of  Virginia  special 
power  to  have  a  particular  kind  of  a  council.  Now,  what  is  the  council  for?  Under 
the  system  we  have  devised  in  this  report  the  council  is  the  legislative  branch  of  the 
city.  That  is  all.  It  makes  the  laws  for  the  city.  Can  there  be  urged  any  objection 
to  having  a  bi-cameral  system,  one  a  check  upon  the  other.  Will  it  not  be  admitted  by 
every  gentleman  upon  this  floor  that  the  Legislature  of  Virginia  makes  better  laws 
because  it  has  a  Senate  and  a  House?  Will  it  not  be  admitted  that  even  in  the  city  of 
Winchester,  model  as  it  is,  they  are  likely  to  have  better  laws  if  the  city  has  two  branches 
of  its  council? 

Mr.  Harrison:    I  would  say  no. 

Mr.  George  K.  Anderson:  Then  your  people  are  an  exception  to  this  rule.  They 
have  combined  in  a  very  great  amount  of  wisdom.  I  have  always,  heard  that  "in  a 
multitude  of  council  there  is  wisdom."  The  committee  thought  to  have  a  bi-cameral 
system  would  be  a  check  in  the  matter  of  legislation.  It  would  give  the  people  in  the 
city  time  to  consider  it  after  it  is  proposed  in  the  lower  branch  of  the  council  or  vice 
versa. 

1  cannot  agree  with  my  friend  from  Lancaster  in  the  sentiment  of  giving  the  cities 
what  they  want  regardless  of  what  we  think  is  best  for  the  whole  State.  My  friend 
from  Richmond  has  suggested  that  the  cities  are  the  mere  hand-maidens  of  the  State. 
The  State  has  rights  as  such.  The  State  is  interested  in  the  health  of  the  whole  State 
and  in  what  laws  are  made  in  the  cities  regarding  the  sanitary  conditions.  The  State  is 
interested  in  the  school  question  and  in  the  laws  that  are  made  governing  the  schools 
in  the  cities.  The  State  is  interested  in  the  financial  policy  of  the  cities,  and  is,  there- 
fore, interested  in  having  a  proper  and  uniform  law-making  body  in  every  city,  because 
the  State  will  then  be  assured  that  whatever  laws  are  made  in  a  city  with  reference 
to  health,  with  reference  to  education,  with  reference  to  finances,  will  be  carefully 
considered  and  adjusted,  and  that  no  harm  will  come  from  hasty  and  ill-considered 
legislation  by  a  single  council  composed  in  Winchester  of — how  many? 

Mr.  Harrison:    Twelve — three  elected  every  year. 

Mr.  George  K.  Anderson:  Now,  let  us  say  that  the  city  of  Winchester,  with  twelve 
councilnien,  makes  laws  which  put  people  in  jail;  imposes  fines  upon  them;  determines 
the  financial  policy  of  the  city,  in  which  the  whole  Commonwealth  is  interested;  deter- 
mines the  school  policy  of  the  city,  in  which  the  whole  Commonwealth  is  interested; 
determines  the  health  policy  of  the  city,  in  which  the  whole  Commonwealth  is  interested. 
I  say  those  twelve  men  in  Winchester  have  no  business  to  be  intrusted  with  the  making 
of  such  laws,  with  no  check  upon  them,  and  no  veto  power  in  their  mayor. 

Mr.  Robertson:  I  would  like  to  know  how  it  can  possibly  affect  the  county  of 
Alleghany  and  those  other  counties  you  gentlemen  live  in  as  to  what  sort  of  city  council 
they  have  in  Lynchburg? 

Mr.  George  K.  Anderson:  I  can  answer  my  friend.  I  think  if  a  city  council  in 
L3^nchburg,  composed  of  a  single  body,  enacts  lax  health  laws,  you  can  send  direct  from 
the  city  of  Lynchburg,  right  into  my  county  and  town,  as  has  been  done — I  do  not  say 
from  the  city  of  Lynchuburg — a  contagious  disease.  The  whole  prosperity  of  the  State 
depends  upon  the  legislation  in  these  cities. 

Mr.  Chairman,  these  considerations  induced  me  to  believe  that  it  would  be  exceed- 
ingly wise  to  require  every  city  in  the  Commonwealth  to  conform  to  a  common  standard 
wherever  the  State  is  interested. 

Now,  Mr.  Chairman  and  gentlemen  we  do  not  interfere  with  local  affairs  of  the 
city.  You  can  have  any  kind  of  an  arrangement  you  want  to  put  out  a  fire.  You  can 
furnish  your  city  with  water  in  any  way  you  please;  you  can  take  it  from  the  James 
river  or  bring  it  from  the  mountains  by  a  pipe.  You  can  have  a  police  board  if  you 
want  it.  You  can  have  any  sort  of  arrangement  to  clean  and  pave  your  streets.  But 
we  say  where  the  State  of  Virginia  is  interested  there  should  be  a  uniform  system  of 
making  laws  to  which  every  man  who  comes  to  that  city,  whether  he  lives  in  it  or  not. 


1942 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


is  amenable,  and  that  it  is  the  part  of  wisdom  to  have  these  laws  uniform.  If  the  city 
of  Richmond  has  a  bi-cameral  system  the  city  of  Winchester  ought  to  have  a  bi-cameral 
system  also. 

I  think,  Mr.  Chairman,  the  question  of  the  qualification  of  councilmen  is  left  out  of 
the  consideration  of  this  question.  I  have  not  been  able  to  present,  with  the  force  which 
I  would  like,  the  reasons  which  have  impelled  me  to  give  my  consent  to  the  report  in 
this  particular,  but  I  hope  the  report  will  commend  itself  to  you  and  that  you  will  vote 
to  sustain  the  committee  in  this  respect. 

Mr.  Manly  H.  Barnes:  Mr.  Chairman,  I  simply  rise  to  enter  my  protest  against  the 
wording  of  this  report  and  to  sanction,  as  far  as  I  can,  the  amendment  which  is  offered 
by  the  gentleman  from  Winchester. 

I  have  the  privilege  of  representing  two  cities,  both  of  which  have  city  councils 
with  only  one  branch.  I,  therefore,  personally  feel  an  interest  in  the  matter.  I  do  not 
think  that  any  reason  which  has  been  assigned  by  the  gentlemen  who  have  represented 
the  other  side  of  the  question  is  sufficient  to  cause  the  Convention  to  break  down  the 
policy  which  has  prevailed  in  the  State  heretofore. 

I  do  not  believe,  Mr.  Chairman,  that  if  you  will  compare  the  cities  of  the  Common- 
wealth which  have  heretofore  had  but  one  branch  of  the  city  council  with  those  cities 
which  have  two  branches  of  the  city  council,  that  you  will  find  that  the  cities  with  only 
one  branch  have  had  their  municipal  affairs  managed  any  worse  than  the  cities  with 
two  branches,  and  I  do  not  believe  that  those  cities  which  have  only  one  branch  are  any 
nearer  to-day  to  a  state  of  banruptcy  than  those  cities  which  have  two  branches. 

The  gentleman  from  Alleghany  says  he  does  not  propose  to  interfere,  so  far  as  the 
question  of  water  supply,  etc.,  is  concerned.  I  think  if  we  had  a  little  interference  on 
that  part  possibly  it  might  aid  some  of  these  cities  that  have  two  branches  of  the  city 
council,  for  certainly  one  of  the  cities  of  the  Commonwealth  which  has  two  branches  of 
its  city  council  has  had  about  as  bad  a  record  on  fires  as  is  possible,  and,  therefore, 
needs  some  prodding  of  its  city  council  far  more  than  the  cities  which  have  only  one 
branch. 

Mr.  Brooke:  The  gentleman  represents,  I  think,  the  city  of  Newport  News. 
Would  he  care  to  give  the  Convention  the  history  of  the  water  supply  of  Newport  News 
about  a  couple  of  years  ago? 

Mr.  Manly  H.  Barnes:  I  will  say  to  the  gentleman  that  Newport  News  is  a  city 
about  six  years  of  age,  and  that,  considering  the  great  age  of  the  city  of  Norfolk,  its 
prosperity,  its  advancement,  its  increase  in  material  resourcesi,  its  water  supply,  its 
every  feature  that  commends  itself  to  the  civilized  world  and  to  the  people  of  Virginia, 
compares  more  than  favorably  with  the  city  of  Norfolk.  You  cannot  expect  such  a  young 
city  as  that  to  have  had  a  sufficient  supply  of  water  two  years  ago,  when  it  was  only 
four  years  old.  But  its  water  supply  is  being  improved  and  benefited  every  day  of 
the  year;  and  it  does  seem  to  me  that  I  have  heard  some  little  complaint  of  the  water 
supply  of  the  city  across  the  bay  from  Newport  News,  and  that  the  gentleman,  instead 
of  asking  me  that  question,  would  be  doing  a  better  thing  for  his  own  people  if  he  had 
given  that  time  to  the  consideration  of  the  question  of  the  water  supply  of  the  city  of 
Norfolk. 

Mr.  Chairman,  this  question  as  to  the  management  of  municipal  affairs,  so  far  as  the 
two  systems  are  concerned,  I  think  is  certainly  in  favor  of  the  system  which  has  only 
one  branch  of  the  city  council.  If  we  consider  the  future  by  the  past,  and  in  making 
up  our  minds  upon  this  matter  it  seems  to  me  we  should  take  into  consideration  the 
past,  if  we  are  going  to  adopt  only  the  one  or  the  other  view  of  this  case,  we  ought 
to  confine  ourselves  to  the  single  system;  and  why?  Because  the  great  majority  of  the 
cities  of  the  Commonwealth  in  the  past  have  had  the  city  council  with  only  one  branch. 
They  say  they  have  worked  well.  They  say  they  have  performed  their  duties  in  ac- 
cordance with  the  wishes  of  the  people  and  the  best  interests  of  the  cities  they  represent. 
Then,  why  should  we  turn  them  down;  why  should  we  place  upon  them  a  system  which 
they  say  is  unsuited  to  them;  a  system  which  they  say  will  not  work  well  with  them, 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYEXTIOX  OF  YIRGIXIA. 


1943 


and  turn  do'^\Ti  a  system  that  has  worked  in  the  most  satisfactory  manner?  I  cannot 
see  any  reason  for  changing  at  all,  but  if  we  do  change  it  should  be  to  the  sysiem  that 
has  only  a  single  branch  of  the  city  council. 

Mr.  Hatton:  Mr.  Chairman,  I  ask  the  indulgence  of  the  committee  just  a  few 
moments,  in  order  that  I  may  say  a  word  upon  this  subject.  I  have  the  honor  to 
represent  upon  this  floor  a  city  of  the  Commonwealth  which  has  always  had  a  single 
chamber  in  its  legislative  department,  but  it  will  be  my  pleasure  to  support  the  report 
of  the  Committee  on  the  Organization  and  Government  of  Cities  and  the  changes  which 
that  report  would  make  in  the  legislative  system  in  my  own  city.  It  has  been  said, 
and  wisely  said,  that  the  evil  which  men  do  lives  after  them,  and  I  believe  that  this 
law  applies  with  greater  force  to  the  members  of  city  councils  than  to  any  other  class 
of  legislators  that  operate  in  such  circumscribed  limits. 

Wrhen  we  consider,  Mr.  Chairman,  that  members  of  the  council  in  cities  have  sole 
control  of  their  bond  issues;  that  they  issue  bonds  which  are  payable  by  generations 
to  come;  that  they  impose  burdens  upon  these  cities  which  will  be  felt  for  years  and 
years  in  the  future;  when  we  consider  that  in  laying  out  streets  and  in  providing 
improvements  of  that  character;  that  the  damage  which  they  do  cannot  be  corrected 
for  generations,  I  say  that  I  will  welcome  any  constitutional  provision  which  will  add 
something  of  conservatism  to  those  bodies. 

As  we  now  have  them,  a  man  can  come  into  a  town,  ov^ming  only  the  clothes  upon 
his  back;  he  gets  elected  to  the  city  council;  he  and  his  kind  can,  and  frequently  do, 
impose  burdens  upon  that  community  from  which  it  cannot  recover  for  many  years. 
When  that  burden  becomes  so  heavily  that  the  people  are  well  nigh  in  despair,  and 
when  the  burden  has  made  taxation  so  heavy  that  business  of  every  kind  has  become 
depressed  and  almost  destroyed,  he  can  shake  the  dust  of  that  town  from  his  feet  and 
leave  those  burdens  to  be  borne  by  the  real  estate  owners  who  have  been  without  the 
means  of  self  defense.  I  am  in  favor  of  anything  that  will  render  that  possibility  less 
proximate,  will  make  it  as  remote  as  possible. 

Now,  Mr.  Chairman,  it  may  be  interesting  to  this  body  to  see  what  proportion  the 
taxation  on  personal  property  bears  to  the  taxation  on  real  property,  and  I  will  assert, 
without  fear  of  contradiction,  that  two-thirds  of  the  acts  of  the  city  councils  affect  real 
estate,  or  effect  people  in  their  relations  to  real  estate.  In  the  city  I  represent,  the 
taxes  from  personal  property  are  only  15  per  cent,  of  the  taxes  derived  from  real 
property.  In  the  city  of  Roanoke  the  taxes  derived  from  personal  property  are  only 
19  per  cent,  of  the  taxes  derived  from  real  property.  In  the  city  of  Winchester  the 
taxes  on  personal  property  are  42  per  cent,  of  the  taxes  on  real  property,  and  in  the 
city  of  Richmond  the  taxes  on  personal  property  are  40  and  a  fraction  per  cent,  of  the 
taxes  on  real  estate.  So,  I  say,  when  mistakes  are  made  by  your  city  council,  that  those 
mistakes,  in  their  very  nature,  are  more  applicable  and  more  disastrous  to  the  real  estate 
than  to  any  other  class  of  property;  and,  therefore,  I  say,  is  it  unfair,  is  it  unreasonable, 
to  give  to  the  owners  of  that  real  estate  a  distinct  representation  on  your  council?  I 
think  not.  We  would  not,  and  it  is  not  proposed  in  this  report  to  give  to  the  owners 
of  real  estate  any  exclusive  representation  so  as  to  give  that  representation  the  control 
of  the  city.  We  only  recognize  those  owners  as  representing  an  integral  part  of  the 
city  government,  and  claim  that  it  is  nothing  more  than  that  to  which  they  are  entitled. 
The  legislation  which  affects  persons  is  usually  originated  and  passed  by  the  State  Leg- 
islature. But  it  is  the  city  council  which  deals  with  property  more  especially,  and  the 
State  taxes  are  insignificant  in  comparison  with  city  taxes,  and  I  think  it  is  not  un- 
reasonable to  recognize  that  property  which  bears  85  per  cent,  of  the  burdens  of  that 
taxation.  The  owners  of  that  property  are  the  ones  who  contribute  the  money  that  is 
spent  by  the  council,  and  those  who  contribute  the  money  should  have  the  right  to* 
distinct  representation  in  the  tribunal  to  spend  that  money.  I  do  not  claim  that  a 
man  who  owns  real  estate  is  any  better  than  the  man  who  does  not.  Such  a  claim  to 
my  mind  would  be  absurd.  But  I  do  claim  that  the  ownership  of  real  property  by  the 
man  who  spends  the  money  that  is  more  largely  contributed  by  that  property  awakens 


1944 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


him  to  a  proper  sense  of  the  responsibility  in  that  expenditure  and  makes  him  hesitate 
before  he  throws  that  money  away,  and  causes  him  to  think  twice  before  he  is  willing 
to  pay  $2  for  something  that  is  only  worth  $1.  I  say  that  it  is  a  false  principle  of 
government  which  allows  one  set  of  men  to  expend  the  money  which  is  contributed 
almost  entirely  by  another  set  of  m.en. 

Now,  Mr.  Chairman,  if  there  are  other  cities  within  the  Commonwealth  which, 
have  the  single  system  in  their  legislative  department,  and  they  find  that  system  so 
perfect  that  they  do  not  desire  to  be  rid  of  it.  I  can  only  felicitate  them  upon  such 
a  condition  of  things  in  their  midst,  but  I  cannot  agree  to  the  proposition  that,  as  a 
system  of  city  government,  the  single  system,  which  gives  no  distinct  recognition  ta 
that  class  of  tax-payers  which  pays  the  largest  amount  of  revenue  to  support  the  city^ 
is  a  good  one. 

I  ask  this  Committee  of  the  Whole  to  deliberate  seriously  upon  this  proposition. 
I  ask  them  to  give  us  a  leavening  principle  in  our  municipal  affairs.  I  appeal  to  the 
members  from  the  country  to  come  to  the  rescue  of  the  cities  of  this  Commonwealth, 
because  it  is  from  the  cities  that  the  State  gets  at  least  two-thirds  of  its  revenue,  and 
I  hope  it  may  be  the  pleasure  of  this  Committee  of  the  Whole  to  support  this  provision 
in  the  report  of  the  Committee  on  City  Organization. 

Mr.  Harrison:  I  accepted  the  amendment  suggested  by  the  gentleman  from  Han- 
over (Mr.  Carter),  and  I  know  he  proposed  it  with  view,  that  it  would  leave  discretionary 
with  each  special  city  to  have  its  own  charter. 

I  think  every  community  ought  to  be  allowed  to  have  ita  own  laws.  That  is  what 
I  am  contending  for;  but  I  cannot  see  why  this  amendment  of  the  gentleman  from 
Hanover  is  not  broad  enough  and  wide  enough  to  permit  any  special  legislation  But 
what  does  it  say?  "There  shall  be  in  every  city  a  council,  to  be  composed  of  one  or 
two  branches,  as  may  be  prescribed  by  law."  That  takes  it  out  of  the  exception  in 
Section  2,  but  leaves  it  to  the  General  Assembly  to  say  that  in  each  city,  or  in  every 
city,  or  in  any  city,  there  may  be  one  or  two  branches,  as  may  be  prescribed  by  law. 

Mr.  President,  I  do  not  desire  to  say  anything  more  on  this  subject.  The  gentle- 
man from  Richmond  (Mr.  Meredith)  goes  upon  the  theory  that  he  would  force  this  upon 
the  people  of  the  city  of  Winchester  even  if  it  takesi  away  the  charter  rights  of  thei 
people  of  that  city.  I  think  that  is  a  matter  of  enough  importance  to  be  considered  by 
itself — whether  the  city  of  Winchester  should  be  stripped  of  its  charter  rights;  but 
they  propose  to  give  to  the  city  of  Winchester  its  charter  rights  and  then  impose  upon 
it  a  government  that  cannot  be  made  suitable  to  the  government  of  the  town.  The 
rights  of  the  Commonwealth,  so  far  as  the  legislation  of  these  towns  is  concerned,  is 
exceedingly  limited. 

Mr.  Dunaway:  It  seems  to  me  the  arguments  that  have  been  presented  here  all 
rest  upon  a  false  basis  for  the  requirement  of  our  small  municipalities  to  have  two 
bodies  in  their  legislative  assembly.  Every  argument  has  its  major  premise.  It  may 
not  be  stated  in  words,  but  if  gentlemen  pay  attention  to  the  argument  they  can  always 
tell  what  that  mayor  premise  is.  In  the  present  case  it  is  that  a  system  of  government 
that  is  suited  to  a  large  population  contains  in  it  such  a  good  vital  principle  that  it  is 
applicable,  and  ought  to  be  applicable,  also  ot  small  communities. 

Now,  these  gentlemen  are  after  a  principle.  They  are  after  uniformity,  and  would 
make  us  believe  that  a  system  of  government  that  is  suitable  for  the  city  of  Richmond 
is  suitable  for  a  small  town  of  the  Commonwealth  that  has  a  population  of  only  5,000. 

I  have  read  an  ancient  story  about  a  man  by  the  name  of  Procrasteus  who  was  very 
fond  of  carrying  out  his  principles.  He  had  a  bed,  and  if  a  man  was  too  short,  he 
would  stretch  him  out  upon  the  bed  until  he  was  long  enough  for  it.  It  seems  to  me 
there  is  a  Procrastean  principle  here  that  gentlemen  are  clamoring  for  and  if  these 
smaller  cities  are  not  suited  for  that  principle,  they  will  stretch  them  out  against  their 
will  and  make  them  lie  upon  that  bed  also. 

There  are  a  good  many  towns  in  the  Commonwealth  not  having  a  population  of 
5,000  which  also  have  their  council.    I  remember  to  have  lived  for  a  number  of  years  in 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  1945 

a  little  town  of  the  State  that  had  a  population  of  only  400,  but  it  had  its  mayor  and 
its  town  council  under  the  laws  of  the  State.  Now,  if  the  principle  for  which  gentleman 
are  contending  is  true,  it  ought  to  be  applied  to  your  little  towns  of  400  or  500.  It  is 
a  principle  of  government  that  ought  not  to  be  violated  even  in  regard  to  the  smaller 
towns  of  the  Commonwealth.  But  they  say  "that  is  ridiculous;  we  would  not  apply  it 
to  one  of  our  little  towns  of  400  or  500;"  and  so  they  draw  the  arbitrary  line — and  I 
submit  it  is  an  arbitrary  line,  purely  so — at  the  number  of  5,000. 

Suppose  we  snould  enact  this  provision  in  our  Constitution,  what  should  we  se© 
in  the  State?  We  should  see  one  of  these  smaller  towns  with  its  two  chambers,  of 
aldermen  and  of  councilmen.  In  some  of  the  towns  they  have  a  council,  as  has  just 
been  stated  here  by  the  gentleman  from  Winchester  (Mr.  Harrison)  of  only  twelve. 
That  is  the  lower  house.  You  want  to  constitute  an  upper  house.  I  will  say  for  the 
city  of  Winchester,  because  that  has  been  mentioned  here  by  way  of  illustration,  how 
many  will  you  put  in  there?  There  are  only  four  wards  in  the  town.  Will  you  have 
four  in  the  upper  chamber,  or  does  that  look  ridiculously  small  for  a  legislative  branch? 
Do  you  say  that  you  will  put  eight  in  it  and  twelve  in  the  other?  Why,  the  body  of 
eight  seems  to  me  to  be  ridiculously  small,  too.  In  the  large  cities  of  the  Common- 
wealth it  seems  to  me  very  proper  to  have  the  lower  house  of  100  and  an  upper  house 
forty,  because  they  represent  so  many  people;  but  when  you  reduce  it  down  to  t^^e  small 
number  of  5,000,  the  practical  difficulty  arises  of  having  a  legislative  assembly  for  that 
small  body,  and  you  will  certainly  have  a  very  small  chamber. 

Another  thing:  That  small  chamber  consisting  of  four  or  six  or  eight  members  is 
made  up  exclusively  of  free-holders.  That  is  what  you  would  haye  in  every  town  of 
the  Commonwealth — a  little  body  of  men,  four,  six,  eight,  or  some  such  small  number  of 
freeholders,  a  thing  that  has  never  existed  in  the  Commonwealth  of  Virginia  and  the 
like  of  which  has  not  existed  in  any  Commonwealth  of  the  United  States  or  in  any  city; 
and  it  would  not  be  long  before  the  people  of  these  little  towns  and  of  some  larger  ones 
also,  such  as  Roanoke  and  Newport  News,  would  rise  in  open  rebellion,  and  it  would 
make  our  Constitution  very  obnoxious  to  those  cities  I  have  already  named. 

For  these  reasons,  and  in  deference  to  the  wishes  of  the  gentlemen  here  represent- 
ing the  cities,  without  voicing  the  wishes  of  gentlemen  of  large  cities,  I  hope  the  amend- 
ment may  prevail.  There  will  be  no  difficulty  in  getting  two  chambers  for  those  cities 
in  the  Commonwealth  that  desire  them. 

Mr.  Brooke:  Mr.  Chairman,  I  shall  endeavor  to  be  brief  in  presenting  the  views 
I  entertain  on  this  subject.  The  matter  has  been  so  thoroughly  discussed  on  either  side 
by  the  gentlemen  who  have  preceded  me  that  I  should  not  have  felt  inclined  to  rise  at 
all,  save  for  the  fact  that  there  might  have  been  an  inference  drawn  from  my  silence, 
being  the  chairman  of  the  committee  v/hich  has  presented  this  report,  that  I  was  at  all 
affected  by  the  arguments  which  have  been  introduced  by  the  gentlemen  who  are 
opposing  the  report  and  who  are  sustaining  the  amendment. 

Now  gentlemen  it  seems  to  me  that  the  very  first  proposition  we  have  to  meet  in 
regard  to  this  question,  judging  from  the  opposition  which  has  been  raised  to  it,  is  are 
there  any  difficulties  in  the  way  of  municipal  government?  Has  any  been  developed  in 
the  State  of  Virginia?  Because  we  find  here  that  the  gentleman  from  Roanoke  (Mr. 
Robertson)  says  he  wants  these  cities  in  the  State  of  Virginia  to  continue  under  their 
present  charters.  He  wants  nothing  to  be  done  in  relation  to  city  governments  so  far 
as  affects  the  constitution  of  the  city  government. 

Mr.  Robertson:  I  meant  that  so  far  as  the  framing  of  this  Constitution  is  con- 
cerned, there  may  be  changes  that  I  do  not  care  to  have  in  our  charter.  I  do  not  think 
this  body  is  the  proper  body  to  frame  the  charter  for  my  city,  when  it  knows  nothing 
about  local  conditions,  and  when  I  state  what  the  local  conditions  are  they  say  it  has 
no  effect  on  them  at  all. 

Mr.  Brooke:  That  then  brings  us  to  the  question  as  to  whether  in  this  provision 
the  Committee  is  going  too  far  in  the  line  of  the  Legislature,  or  whether  it  is  properly 
confining  itself  to  the  mere  framework  of  city  government.  It  is  the  view  of  the 
123— Const.  Deb. 


1946 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.' 


Committee  that  if  you  undertake  at  all  in  the  Constitution  to  provide  for  the  organiza- 
tion and  constitution  of  city  governments,  we  must  of  necessity  at  least  give  an  outline 
or  a  framework  of  those  governments.  Nobody  can  object,  and  nobody  has  objected  to 
our  saying  that  there  should  be  in  all  city  governments  a  mayor  or  an  executive  depart- 
ment. Nobody  has  said  and  nobody,  I  think,  will  say  that  it  is  not  proper  in  providing 
for  the  executive  department  to  lay  down  certain  lines  within  which  the  power  of  that 
department  may  be  exercised  for  the  good  government  of  the  people.  Nobody  has  said, 
and  nobody,  I  think,  will  say  that  we  ought  not  to  provide  in  the  Constitution  for  a 
judicial  department  of  the  municipal  government.  Nobody  has  said,  and  I  believe  no 
one  will  say,  that  in  providing  the  judicial  department  for  a  city  government,  the  Con- 
Sititution  should  not  go  on  and  lay  down  certain  lines  of  jurisdiction  and  certain  lines 
of  operation  of  that  department  of  the  government  within  the  municipal  territory  which 
shall  be  fixed  by  the  Constitution  itself. 

When  we  come  to  the  other  branch,  the  legislative  branch  of  the  city  government 
is  there  any  reason  why  we  should  not  provide  for  cities  some  form  of  a  legislative 
department  of  the  city  government?  Is  there  any  reason  why  we  should  not  say  that 
the  legislative  power  of  the  people  residing  within  that  municipality  shall  be  concen- 
trated in  some  department  of  the  city  government? 

Mr.  Harrison:  Has  any  constitution  in  the  State  ever  provided  for  two  branches 
of  a  city  council? 

Mr.  Brooke:    I  think  not. 

And  L  will  go  even  further  in  the  line  on  which  my  friend  seems  to  desire  me  to 
go,  and  say  that  the  present  Constitution,  curiously  enough,  has  not  even  provided  for 
a  legislative  department  of  city  government. 

Mr.  Robertson:    And  we  do  not  want  one  provided. 

Mr.  Brooke:  I  understand  the  position  of  these  gentlemen,  and  I  am  meeting  the 
argument  if  I  can.  The  gentleman  from  Roanoke  (Mr.  Robertson)  says  we  should  not 
provide  in  the  Constitution  for  a  legislative  department  of  the  city  government.  If  we 
do  undertake  to  establish  a  legislative  department  of  the  city  government,  we  ought 
to  make  a  framework  for  the  government  along  the  lines  which  are  recognized  as 
dividing  the  government  into  three  co-ordinate  branches.  We  provide  for  the  executive 
department.  We  provide  for  the  judiciary  department,  and  we  undertake  to  provide  for 
the  legislative  department.  If  it  is  right  that  we  should  provide  the  framework  of  these 
departments,  if  it  is  right  that  we  should  say  there  shall  be  a  city  council,  with  legisla- 
tive power,  then  the  question  works  down  to  whether  we  shall  say  anything  about  the 
constituent  elements  of  that  body.  Constitutions  always  do  that.  We  say  in  this  pro- 
vision that  there  shall  be  a  city  council.  There  are  certain  powers  which  ought  to  be- 
long to  a  city  council  beyond  the  power  of  the  Legislature  of  the  State  to  take  away, 
and  certain  powers  that  ought  to  be  given  which  it  ought  to  be  beyond  the  power  of 
the  Legislature  to  grant.  If  we  find  any  such  on  either  side,  and  if  there  are  any  such, 
we  should  secure  to  the  city  government  the  one  and  we  should  secure  from  the  city 
government  the  other. 

Then  we  come  to  take  up  the  form  of  this  legislative  department  of  the  city  govern- 
ment. It  has  occured  to  the  members  of  the  committee  that  it  ought  to  be  bi-cameral, 
that  there  ought  to  be  two  branches  of  the  city  council.  There  may  be  room  for  a 
difference  of  opinion  on  that  subject;  there  may  be  room  for  a  difference  of  opinion 
upon  the  subject  as  to  whether  the  city  council  should  be  composed  of  two  branches  or 
of  one  branch;  but  I  submit  it  is  not  fair  argument  for  gentlemen  on  the  other  side 
to  undertake  to  make  the  argument  that  simply  because  in  all  of  the  cities  of  the  State 
the  bi-cameral  system  does  not  exist,  that  those  who  are  in  favor  of  a  bi-cameral  system 
are  theorists,  and  merely  theorists.  Our  fathers  in  the  Federal  Constitution,  and  in 
the  Constitution  of  the  State  governments,  were  theorists  under  the  same  definition. 

It  seems  to  me,  gentlemen,  if  any  principle  of  government  has  ever  been  thoroughly 
imbedded  in  the  hearts  of  the  people  of  this  country,  it  is  the  fact  that  the  legislative 
department  shall  be  divided  into  two  branches.    Now  why?    I  could  not,  if  I  would, 


DEBATES  OF  THE  COXSTITUTIOXAL  COX^'E^'TIO^'  OF  YIEGIXIA. 


1947 


undertake  to  go  through  all  the  arguments  which  brought  about  the  establishment  of 
that  principle  as  a  fundamental  principle  of  the  legislative  department  of  the  goverment. 
If  you  are  going  to  create  a  municipal  government,  are  you  going  to  make  a  hybrid  of 
it;  are  you  not  going  to  constitute  it  upon  the  well-recognized  lines  along  which  govern- 
ments ought  to  be  constituted?  If  the  State  is  going  to  surrender  to  a  certain  extent 
the  right  to  govern  the  people  of  a  particular  community,  and  place  it  in  the  hands  of 
a  local  government,  is  it  not  good  sense,  good  policy  and  good  philosophy  to  build  that 
government  upon  the  well-recognized  lines  of  government,  as  they  have  been  established, 
and  have  become  dear  to  the  hearts  of  the  people  of  this  country  ever  since  it  has  been 
a  country? 

I  think  nobody  denies  that  the  application  of  the  double-branch  of  the  legislative 
department  is  good.  Only  recently  have  I  ever  heard  anybody  deny  that  it  was  ab- 
solutely essential  to  the  fair  administration  of  the  legislative  department  of  the  govern- 
ment. 

If  it  is  good  for  the  State  government,  we  come  to  the  question  whether  it  ought 
to  be  good,  or  will  be  good,  for  city  governments,  and  I  lay  down  this  proposition,  which 
I  believe  to  be  a  fact — and  I  think  it  will  be  borne  out  by  the  opinion  of  ever^'  gentle- 
man, if  he  will  stop  to  reflect,  who  has  had  any  experience  in  the  matter  of  municipal 
government — that  the  rapidity  and  consequent  secrecy,  not  intentional,  probably:  I  do 
not  mean  to  say  that,  but  the  rapidity  and  consequent  secrecj' — with  which  the  legisla- 
tion can  be  passed  through  a  municipal  council,  composed  of  but  one  body,  and  which 
does  its  work  in  one  night,  cannot  fail  to  put  the  cities  in  greater  need  of  some  check 
upon  the  action  of  these  councils  composed  in  this  way  than  a  State  would  need  upon 
the  action  of  its  Legislature. 

Mr.  Robertson:  Is  there  not  just  as  much  e\il  in  our  State  affairs  as  in  our  muni- 
cipal affairs,  from  good  m.easures  being  obstructed  and  prevented  from  being  passed, 
as  there  is  from  improper  measurers  going  through?  Is  it  not  a  fact  that  a  great  many 
of  the  laws  that  the  people  of  Virginia  have  desired  in  the  State  at  large  have  been 
prevented  from  being  passed  by  the  State  Senate,  that  in  the  House  of  Delegates,,  which 
represents  the  people  more  directly,  those  laws  have  been  passed  and  have  been 
obstructed  in  the  Senate  from  time  to  time?  Is  not  that  an  evil  that  has  to  be  con- 
sidered in  this  matter  just  as  much  as  the  other  evil? 

Mr.  Brooke:  I  have  heard  that  is  so,  and  I  have  heard  people  say  that  the  matters 
which  failed  to  pass  the  Senate  and  had  passed  the  House,  which  the  gentleman  from 
Roanoke  and  other  people  would  consider  good  legislation,  the  passage  of  which  has 
been  prevented  by  the  Senate,  was  bad  legislation.  Between  those  two  opinions  I  am 
not  willing  to  take  m^'  stand. 

Mr.  Robertson:  Is  it  not  easier  for  outside  influences  to  control  a  small  body  of 
men  than  to  control  a  large  body,  for  instance,  parties  come  there  wanting  to  get  a 
franchise  that  will  be  in  competition  with  a  franchise  already  established.  Is  it  not 
easier  for  the  franchise  that  is  there,  against  the  interests  of  the  people,  to  keep  the 
other  franchise  out  when  you  have  the  second  chamber  than  when  you  do  not  have  it? 
The}"  can  control  that  other  chamber  easier  than  can  the  lower  one,  can  they  not? 

Mr.  Brooke:  My  own  experience  and  obser^'ation  is  that  that  is  not  true.  I  re- 
member— although  I  do  not  care  to  be  led  off  into  personal  experiences  in  individual 
cases — Shaving  been  engaged  in  trj-ing  to  prevent  the  entering  into  the  city  of  Norfolk 
of  a  company  seeking  a  franchise,  when  I  could  have  won  if  there  had  been  but  a 
single  council,  and  I  was  defeated  because  there  was  a  second  branch.  I  do  not  mean 
to  say  that  one  swallow  makes  a  spring  or  that  one  incident  establishes  a  principle;  and 
that  is  just  what  seems,  to  me  to  be  the  fault  with  the  gentlemen  on  the  other  side.  The 
gentleman  from  Winchester  (Mr.  Harrison)  says  "our  city's  government  is  all  it  ought 
to  be,''  and  he  presents  here  in  solemn  form  a  resolution  from  the  council  of  the  city 
of  Winchester  which,  while  not  in  this  language,  is  substantially  this:  "We,  the  coun- 
cil of  the  city  of  Winchester,  do  solemnly  resolve  that  we  ought  not  be  turned  out  of 
office." 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Harrison:    We  do  not  pay  them  anything.    It  is.  a  great  burden  on  them. 

Mr.  Brooke:  But  I  am  being  diverted  from  the  line  of  my  thought.  My  proposition 
is  that,  if  this  principle  of  the  dual  branches  of  the  legislative  department  is  good  for 
States,  presumably  it  is  good  for  cities,  and  an  addition  to  the  presumption,  I  offer  this 
reason:  Legislation  comes  up  before  a  city  council  composed  of  one  body,  the  sessions 
of  which  are  generally  held  at  night.  The  legislation  is  passed  before  midnight  and  is 
law  before  morning. 

Mr.  Glass:  How  does  it  become  law  before  morning,  when  you  expressly  provide 
the  mayor  shall  have  the  right  of  veto? 

Mr.  Brooke:  I  am  talking  about  not  what  will  be  the  condition  of  those  cities 
under  the  additional  safeguards  we  have  put  around  them,  but  their  condition  hereto- 
fore, according  to  the  gentleman  from  Winchester. 

Mr.  Harrison:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  gentleman  to 
the  fact  that  cannot  be  true.  A  measure  has  to  pass  there  at  two  meetings  of  the  coun- 
cil.   They  cannot  pass  an  act  until  it  has  been  approved  at  two  meetings. 

Mr.  Brooke:  The  gentleman  from  Lancaster  (Mr.  Dunaway),  in  his  first  speech, 
said  that  if  this  amendment  goes  into  effect,  no  harm,  no  hurt,  will  be  done.  Gentle- 
men, that  brings  us  back  to  the  first  proposition:  Are  you  satisfied  to  leave  the  cities 
of  the  State  of  Virginia  in  the  present  condition  of  their  city  charters  and  their  city 
government?  Are  you  willing  to  say  the  experiment  of  municipal  government  in  the 
State  of  Virginia  has  worked  out  so  well  that  you  are  not  willing  to  change  it,  that  you 
see  no  changes  that  can  be  made  or  that  ought  to  be  made  in  an  organic  form  of  law? 
If  you  are  willing  to  say  that,  if  the  members  of  the  committee  are  willing  to  say  that, 
there  is  an  end  of  argument  on  our  side  of  the  case.    I  do  not  believe  they  will  say  that. 

Gentlemen  who  have  served  on  the  committee  of  which  I  happen  to  be  the  chair- 
man will  know  that,  according  to  the  representation  of  people  from  the  different  cities 
of  the  State,  the  operations  of  the  city  councils  have  not  been  satisfactory,  that  the 
operations  of  city  government  have  not  been  satisfactory.  They  seem  to  have 
been  satisfactory  to  the  gentlem^an  from  New  Kent  (Mr.  Barnes),  who  lives,  I  believe, 
about  four  counties  from  Newport  News,  though  he  represents  that  city  in  the  Conven- 
tion, and  who,  probably,  if  he  will  excuse  me  for  saying  so  kindly,  knows  as  little  about 
Newport  News  as  I  do.  As  a  matter  of  fact,  if  he  is  expressing  only  his  own  opinion 
as  to  what  the  people  of  Newport  News  desire  in  this  respect,  I  wish  to  say  upon  this 
floor  that  well-known  citizens  of  the  city  of  Newport  News,  where  I  am'  somewhat  well 
known  myself,  have  said  to  me  they  not  only  approved  this  change,  but  that  they  hope, 
or  wish,  rather,  for  they  did  not  dare  to  hope,  that  some  restriction  might  be  put  upon 
the  electors  who  should  elect  members  to  the  council  of  Newport  News. 

Now,  the  gentleman  from  Lancaster  says  there  is  an  arbitrary  line  drawn  between 
cities  and  towns,  and  he  gives  a  very  vivid  picture  of  how  hard  it  would  be  upon  these 
communities,  some  of  which  are  as  small  as  400  inhabitants,  to  have  this  cumbrous 
machinery  of  a  double-chamber  council.  The  answer  to  all  that  is  that  we  are  not 
asking  it  for  the  towns.  We  are  not  asking  to  put  this  on  places  of  less  than  five 
thousand  inhabitants.  His  argument  is  that  if  we  desire  to  do  it  with  regard  to 
cities  we  ought  to  desire  to  do  it  with  regard  to  towns.  My  answer  to  that  is  very 
much  like  the  sentiment  of  the  gentleman  from  Richmond  (Mr.  Meredith),  that,  in 
my  humble  judgment,  it  is  exceedingly  doubtful  whether  incorporated  communities  of 
only  five  thousand  inhabitants  have  a  right  to  be  called  cities  at  all.  But  if  they  will 
thrust  themselves  into  the  sisterhood  of  cities,  let  them  understand  that  the  Con- 
stitutional Convention  makes  no  difference  between  them  and  the  larger  cities  in 
providing,  according  to  the  best  of  its  judgment,  a  suitable  framework  of  municipal 
government. 

All  of  these  practical  difficulties  about  getting  enough  councilmen  to  serve  so 
as  to  make  up  a  double-chamber  council  are  as  thin  as  the  mists  of  the  air.  The 
trouble  is  not  to  get  people  to  go  to  the  councils,  but  to  keep  people  from  going  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIRGIXIA.  1949 


the  councils.  I  am  told  that  so  satisfactory  is  the  business  of  the  councilmen  in 
fiome  cities  that  men  after  being  elected  to  councils  which  pay  no  salary  abandon  the 
daily  labor  in  which  they  were  engaged  before  they  came  into  the  council.  I  do  not 
know  how  they  do  it,  and  I  do  not  even  know  that  it  is  true.    I  have  been  told  so. 

It  does  seem  to  me^  gentlemen,  that  is  no  answer  to  this  proposition  which  we 
make  to  the  committee  for  a  double-chamber  council.  It  is  no  answer  to  say  that 
a  single-chamber  council  in  this  place,  that  place  or  another  place,  has  heretofore 
operated  satisfactorily.  They  are  lucky  if  they  have.  But  can  there  be  any  doubt  of 
the  principle  that  a  thing  which  has  to  be  scrutinized  by  two  distinct  bodies,  meeting 
at  different  times,  is  going  to  disclose  its  defects,  errors,  and  corruption  to  the  second 
investigation  more  readily  than  it  would  to  the  first,  and  hasty  one  which  is  given, 
where  there  is  only  a  single  chamber  of  the  council? 

I  do  hope,  gentlemen  of  the  committee,  you  will  adopt  the  report  of  the  commit- 
tee on  this  subject.  I  am  not  usually  interested  so  deeply  in  work  to  which  I  have 
myself  contributed  as  to  be  unable  to  see  the  arguments  which  may  be  adduced 
against  its  perfections  and  its  good  qualities,  but  I  want  to  say  frankly  to  this  com- 
mittee that  I  do  feel  this  is  but  one  element  in  the  system  which  the  committee  has 
tried  to  draw  up,  which  will  bring  about  a  greater  ^conservatism  and  a  more  efficient 
management  of  city  governments  than  those  which  now  exist.  It  is,  along  with  the 
veto  power  of  the  mayor  and  some  other  few  provisions,  simply  one  of  a  system  of 
checks  and  balances  which  we  have  attempted  to  fix  upon  municipal  government. 
Personally  I  shall  feel  that  the  work  of  the  Committee  on  the  Organization  and  Gov- 
ernment of  Cities  and  Towns  has  been  largely  of  no  avail  if  this  provision  of  its  work 
is  voted  down  by  the  Convention. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Han- 
over (Mr.  Carter),  adopted  by  the  gentleman  from  Winchester  (Mr.  Harrison)  as  his 
own,  which  will  be  read  by  the  Secretary. 

Insert  after  the  word  "of,"  in  line  2,  the  words  "one  or";  insert  after  "branches," 
in  the  same  line,  the  words  "as  may  be  prescribed  by  law";  insert  after  the  word 
"members,"  in  lines  2  and  3,  the  words  "in  each  branch,  if  there  be  two." 

The  section  would  then  read: 

There  shall  be  In  every  city  a  city  council  composed  of  one  or  two  branches,  as  may 
be  prescribed  by  law,  having  a  different  number  of  members  in  each  branch  if  there  be 
two,  whose  powers  and  terms  of  office  will  be  prescribed  by  law,  etc. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes.  23;  noes,  36. 
The  Chairman:    The  Secretary  will  read  the  amendment  offered  by  the  gentleman 
from  Washington. 

Strike  out  the  words  "the  less  numerous  branch  of  the  city  council  shall  be  com- 
posed of  freeholders,  who  shall  own  a  freehold  estate,  in  real  estate,  situated  in  said 
city,  of  an  assessed  value  of  at  least  one  thousand  dollars." 

The  amendment  was  agreed  to,  there  being,  on  a  division,  ayes.  34;  noes,  29.. 

The  Chairman:    Are  there  any  further  amendments  to  Section  7? 

Mr.  Thom:  I  move  to  strike  out  all  of  the  section  after  the  word  '''city,"  in  line 
16,  and  insert  the  following  words:  "May,  in  a  manner  to  be  prescribed  by  law,  in- 
crease or  diminish  the  number  and  change  the  boundaries  of  wards  or  similar  sub- 
divisions thereof,"  so  that  the  provision  will  read: 

The  council  of  every  city  may,  in  a  manner  to  be  prescribed  by  law,  increase  or 
diminish  the  number,  and  change  the  boundaries  of  wards  or  similar  sub-divisions 
thereof. 


1950 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


Mr.  Chairman,  the  present  provision  requires  the  reapportionment  every  ten 
years,  and  requires  that  that  reapportionment  shall  proceed  upon  the  population  in 
each  ward.  There  is  a  serious  difficulty  that  will  arise  if  that  provision  is  adopted 
as  it  now  stands  in  the  article.  In  almost  every  city  in  the  Commonwealth  there  are 
a  very  large  number  of  negroes  who  congregate  in  one  special  section  of  the  city.  If 
a  suffrage  plan  is  adopted  which  will  disfranchise  these  negroes,  there  will  still  be 
under  the  article,  as  suggested  by  the  committee,  a  requirement  that  the  representation 
in  the  council  shall  be  based  upon  the  whole  population  in  that  ward,  and  will  give  to 
the  white  people  in  one  ward  from  five  to  ten  times  the  influence  in  the  city  council 
that  the  white  men  in  another  portion  of  the  city  will  have.  To  obviate  that,  and  to 
make  an  elastic  system,  I  ask  that  the  Committee  of  the  Whole  will  provide  that  this 
reapportionment  may  be  made  in  a  manner  to  be  prescribed  by  law,  so  that  it  may 
restrict  and  obviate  some  of  the  difficulties  to  which  I  have  alluded. 

Mr.  Pollard:  Mr.  Chairman,  I  hope  it  will  be  the  pleasure  of  this  committee  to 
sustain  the  report  of  the  Committee  on  Cities  and  Towns.  The  gentleman  from 
Norfolk  is  mistaken  in  supposing  that  any  such  danger  as  he  has  suggested  is  immi- 
nent. I  would  like  to  call  the  attention  of  the  members  of  this  committee  to  a  con- 
dition of  affairs  which  exists  in  the  city  of  Richmond.  Our  condition  but  illustrates 
the  importance  of  having  such  a  rule  as  is  laid  down  in  the  report  of  the  committee. 
We  have  in  this  city  six  wards  with  population  distributed  very  unequally  among 
them.  We  have  one  ward  that  is  nearly  three  times  as  large  in  population  as  any 
other  ward,  and  yet  this  large  ward,  with  immense  property  values,  paying  to  the 
city  treasury  and  to  the  State  treasury  often  three,  four  or  five  times 
as  much  in  personal  taxes  of  this  city  and  State,  has  only  the  same 
representation  as  is  given  to  a  ward  having  about  one-third  the  population.  The  re- 
sult has  been  that  citizens  living  in  certain  parts  of  the  city  have  three  times  the 
voice  in  the  management  of  the  city  affairs  as  those  in  other  portions 
of  the  city;  and  the  further  result  has  been  that  through  the  representation  in  the 
city  council  the  minority  of  the  people  of  the  city  of  Richmond  now  rule  the  city, 
and  that  is  one  reason,  gentlemen  of  the  committee,  that  there  has  been  so  much 
complaint  against  our  city  government.  It  is  because  the  lower  portions  of  this  city, 
having  a  small  population,  have  the  same  representation  in  the  council,  and  hold  the 
better  element  of  this  city  by  the  throats,  and  will  not  let  them  do  what  is  best  for 
the  interests  of  this  city.  Take  the  outlying  Clay  ward  which  has  been  the  ward  in 
which  there  has  been  most  growth.  It  has  nearly  three  times  tbe  population  of 
Jefferson  ward,  the  ward  just  below  us.  Jefferson  ward  is  a  finished  ward.  Nearly 
all  the  streets  in  that  ward  are  paved,  nearly  all  the  houses  in  that  ward  are  supplied 
with  gas  and  water  connection,  while  out  in  Clay  ward,  with  an  area  very  much 
larger,  they  have  refused  to  put  in  those  conveniences,  although  Clay  ward  pays 
about  three  or  four  times  as  much  taxes.  What  has  been  the  result?  The  people 
desiring  to  build  new  houses,  instead  of  building  in  the  growing  wards,  where  they 
would  naturally  have  built  if  they  could  have  gotten  gas,  water  and  culvert  connec- 
tions, have  erected  their  homes  on  the  suburbs,  vhere  they  would  not  have  to  pay 
city  taxes,  which  they  would  have  been  willing  to  pay  if  they  could  have  gotten  city 
conveniences.  They  have  gone  out  and  built  little  towns  all  around  Richmond,  and 
our  city,  instead  of  showing  a  growth  of  25  per  cent.,  as  it  has  in  almost  every  decade 
in  its  history,  in  the  last  ten  years  only  increased  about  3  per  cent.  The  small  wards, 
having  control  of  the  council,  often  succeed  in  having  the  money  for  improvements 
apportioned  among  the  wards,  irrespective  of  the  size,  the  condition,  and  the  needs 
of  the  wards.  They  pull  up  and  put  down  new  pavements,  here  in  the  center  of  the 
city,  where  wo  do  not  need  them,  and  neglect  portions  of  the  city  which  are  destitute 
of  all  city  conveniences.  I  call  your  attention  to  our  condition,  not  because  I  want 
you  to  put  this  clause  into  the  Constitution  just  for  the  benefit  of  our  city,  but  be- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA.  1951 

cause  it  shows  what  injustice  may  be  done  under  the  present  state  of  the  law.  What 
has  happened  in  Richmond  is  likely  to  happen  anywhere.  This  is  no  new  principle 
we  are  seeking  to  imbed  in  the  law.  Representation  in  the  House  of  Delegates  and 
in  the  Senate  is  of  proportion  according  to  population,  and  based  on  the  census  of  the 
United  States.  We  recognized  the  same  principle  when  we  reapportioned  the  repre- 
sentation in  Congress  according  to  population.  It  is  a  fundamental  principle  that 
should  be  embodied  in  the  organic  law — a  guarantee  lo  the  citizens  of  the  cities  equal 
voice  in  the  management  of  municipal  affairs.  We  have  applied  to  the  Common  Coun- 
cil for  relief  from  this  iniquitous  condition,  and  they  laugh  in  our  faces,  just  because 
the  representatives  of  the  smaller  w^ards  are  not  willing  to  give  up  the  unfair  ad- 
vantage which  the  condition  gives  them.  They  offer  the  flimsy  excuse  that  if  they 
give  us  representation  according  to  our  population,  they  would  have  to  give  larger 
representation  to  Jackson  ward,  the  negro  ward  of  the  city.  Why,  there  has  not  been 
a  negro  for  years  in  the  Common  Council.  The  Democrats  are  elected  by  a  large 
majority  in  Jackson  ward  to-day.  We  have  Democrats  representing  the  negroes  in  the 
council.  It  is  a  great  injustice  to  leave  it  as  it  is,  and  I  hope  the  committee  will 
stand  by  the  unanimous  report  of  the  Committee  on  Cities  and  Towns. 

Mr.  Robertson:  Mr. ■  Chairman,  I  simply  rise  to  say  that  there  exist  in  my  city 
very  similar  conditions  to  those  stated  by  the  gentleman  from  Norfolk  (Mr.  Thorn) 
to  exist  in  his  city.    I  hope  very  much  the  committee  will  vote  for  this  amendment. 

I  do  not  care  to  go  into  any  argument  about  it,  but  it  seems  to  me  the  wishes  of 
the  members  who  represent  cities  on  this  floor  are  not  very  much  regarded,  and  I 
do  not  know  that  any  argument  will  help  us.  There  seems  to  be  a  general  idea  here 
amongst  the  country  members  that  they  must  do  something  to  put  the  cities  on 
exactly  the  same  footing  as  the  counties.  They  go  on  the  principle  that  as  they  have 
been  hit  on  the  neck  by  something,  they  want  to  hit  us  back.  I  deprecate  any  feeling 
of  that  kind.  I  represent  two  counties  and  one  city.  I  have  no  such  feeling  myself, 
and  I  deprecate  the  manifestation  of  it  here.  It  does  seem  to  me  that  if  gentlemen 
representing  important  cities  get  up  here  and  make  statements  about  the  condition 
of  their  cities,  weight  ought  to  be  given  to  the  requests  they  make. 

Mr.  Meredith:  Mr.  Chairman,  I  just  want  to  add  my  statement  to  that  of  the 
gentleman  from  Roanoke  (Mr.  Robertson),  so  far  as  concerns  agreeing  with  the  motion 
made  by  the  gentleman  from  Norfolk  (Mr.  Thom).  It  does  seem  to  me  a  matter  of 
this  kind  ought  to  be  left  to  the  city  council,  which  is  controlled  by  the  General  Assem- 
bly. There  is  no  necessity  of  our  adopting  a  constitutional  requirement,  our  cities 
being  of  such  a  shifting  nature  as  they  are  at  present,  as  to  how  they  shall  be  sub- 
divided. It  is  a  matter  that  the  General  Assembly  and  the  city  councils  can  take 
care  of. 

Mr.  Pollard:  Mr.  Chairman,  in  answer  to  what  my  colleague  from  Richmond 
(Mr.  Meredith)  has  said,  it  is  a  well-known  fact  that  the  citizens  of  Richmond  who 
have  been  done  this  great  injustice  have  been  trying  to  get  it  corrected  for  many, 
many  years,  and  have  failed.  What  chance  would  we  stand  before  the  Legislature  of 
Virginia  with  a  committee  from  the  Common  Council  opposing  what  we  ask  for? 
The  smaller  wards  of  this  city  have  control  of  the  Common  Council,  and  any  change 
in  this  matter  would  be  opposed  by  a  committee  from  the  Common  Council,  because 
they  want  to  retain  this  unjust  and  undemocratic  control  of  the  affairs  of  the  city. 
We  can  get  no  relief,  either  from  the  council  or  from  the  General  Assembly. 

Mr.  Meredith:  Mr.  Chairman,  if  I  thought  there  was  any  such  great  injustice 
being  perpetrated  in  the  city  of  Richmond  as  is  stated  by  my  friend,  I  should  be  ppr- 
fectly  willing  to  assist  in  remedying  it,  but  I  think  it  is  somewhat  magnified.  I  do 
not  believe  the  better  wards  of  the  city  persist  in  any  such  injustice. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  I  trust  the  Committee  of  the  Whole  will 
not  be  frightened  by  this  bugaboo  of  one  negro  ward  in  two  or  three  cities  of  the 


1952 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Commonwealth.  The  conditions  that  have  been  pointed  out  by  my  colleague  (Mr. 
Pollard)  I  know  exist  in  the  city  of  Richmond,  and  they  are  apt  to  exist  in  any  of 
the  cities  of  the  Comonwealth.  It  does  not  seem  to  me  that  the  Convention  ought  to 
refuse  to  enunciate  and  give  effect  to  a  great  principle  of  government  merely  because 
in  two  or  three  cities  of  the  Commonwealth  there  happen  to  be  local  conditions  which 
might  cause  a  larger  representation  in  the  local  council.  The  gentleman  from  Nor- 
folk (Mr.  Brooks),  the  chairman  of  the  committee,  has  absolutely  put  at  rest  any 
such  danger  by  the  amendment  he  offered  to  the  report  this  morning,  which  allows 
these  wards  to  be  gerrymandered,  in  order  to  obviate  that  difficulty. 

Mr.  Thom:  I  wish  to  ask  how  any  possible  gerrymandering  can  remove  a  diffi- 
culty when  the  difficulty  is  produced  by  the  fact  that  the  reapportionment  must  be  in 
proportion  of  population?  It  simply  throws  them  in  a  different  ward  without  chang- 
ing the  basis  of  representation. 

Mr.  James  W.  Gordon:  It  can  be  done  by  so  changing  the  ward  lines  as  to  throw 
part  of  them  in  the  black  wards  and  part  in  the  white  wards.  That  has  been  done 
in  other  cities;  but  whether  it  could  be  done  or  not,  it  seems  to  me  we  should  not 
deny  to  these  suffering  white  citizens  of  Richmond  and  other  cities  the  relief  to 
which  they  are  entitled  merely  because  in  several  communities  of  the  Commonwealth 
there  exists  this  large  negro  population  in  one  of  the  wards. 

Why,  my  friend  (Mr.  Pollard)  might  have  told  you  that  Clay  Ward  has,  I  suppose, 
three  or  four  times  the  area  of  Madison  ward  or  Jefferson  ward,  and  about  three  times 
the  population  of  either  of  them,  and  yet  its  five  members  in  the  council  have  abso- 
lutely no  more  voting  strength  than  the  members  from  these  completed  wards  in  the 
center  of  the  city.  I  think  this  is  a  simple  matter  of  justice,  and  that  this  committee 
should  recognize  it  and  vote  to  sustain  the  .report. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Nor- 
folk (Mr.  Thom),  which  the  Secretary  will  read. 

The  amendment  was  rejected. 

Mr.  Robertson:    I  now  offer  my  amendment  to  strike  out  the  entire  section. 
The  motion  was  rejected. 

The  Chairman:    The  Secretary  will  read  Section  8. 
Section  8  was  read  and  adopted. 

Section  9  was  then  read,  as  follows:  -  , 

Sec.  9.  Every  joint  resolution  or  ordinance  which  shall  have  passed  both  branches 
of  the  city  council,  shall,  before  it  becomes  operative,  be  presented  to  the  mayor  of  said 
city.  If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it  with  his  objections  in 
writing  to  the  clerk,  or  other  recording  officer,  of  that  branch  of  the  council  in  which  It 
shall  have  originated,  which  branch  of  said  council  shall  enter  his  objections  at  length 
on  its  journal  and  proceed  to  reconsider  it.  If,  after  such  reconsideration,  two-thirds  of 
all  the  members  elected  thereto  shall  agree  lo  pass  the  resolution  or  ordinance  it  shall 
be  sent,  together  with  the  objections,  to  the  other  branch  of  said  council,  by  which  it 
shall  likewise  be  considered,  and  if  approved  by  two-thirds  of  all  the  members  elected 
thereto  it  shall  become  operative,  notwithstanding  the  objections  of  the  mayor.  But  In 
all  such  cases  the  votes  of  both  oranches  of  the  city  council  shall  be  determined  by  ayes 
and  noes,  and  the  names  of  the  members  voting  for  and  against  the  said  resolution  or 
ordinance  shall  be  entered  on  the  journal  of  each  branch  respectively.  If  any  resolution 
or  ordinance  shall  not  be  returned  by  the  mayor  within  five  days  (Sunday  excepted) 
after  it  shall  have  been  presented  to  him  the  same  shall  become  operative  in  like 
manner  as  if  he  had  signed  it,  unless  his  term  of  office,  or  that  of  the  city  council,  or 
both,  shall  expire  within  said  five  days. 

The  mayor  shall  have  the  power  to  veto  any  particular  item  or  items  of  an  appro- 
priation ordinance  or  resolution,  but  said  veto  shall  not  affect  any  item  or  items  to 
which  he  does  not  object.  The  item  or  items  objected  to  shall  not  take  effect  except  in 
the  manner  provided  in  this  section  as  to  joint  resolutions  or  ordinances  not  approved 
by  the  mayor. 


Meredith:    Mr.  Chairman,  I  desire  to  offer  an  amendment  to  Section  9,  al- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


1953 


though  I  do  not  know  whether  it  will  be  regarded  by  the  chairman  that  this  is  the 
proper  place  for  it,  and  he  may  object  to  it  on  its  merits.  It  is  an  amendment  in  re- 
gard to  the  passage  of  ordinances,  and  is  as  follows: 

No  ordinance  or  joint  resolution  appropriating  money  exceeding  the  sum  of  $100, 
imposing  taxes  or  authorizing  the  borrowing  of  money,  shall  be  passed  except  by  a 
recorded  vote  of  two-thirds  of  all  the  members  elected  to  each  branch  of  the  council  of 
said  cities;  and  in  case  of  veto  by  the  mayor  of  said  ordinance  or  joint  resolution,  it 
shall  require  a  recorded  vote  of  three-fourths  of  all  the  members  elected  to  each  branch 
of  the  council  to  pass  the  same  over  such  veto,  in  the  manner  prescribed  in  Section  9. 

I  simply  desire  to  put  the  ordinances  in  regard  to  the  finances  of  the  city  upon  a 
•different  basis  from  ordinances  for  ordinary  purposes  and  require  that  no  ordinance 
appropriating  money  exceeding  $100,  or  imposing  taxes  or  authorizing  the  borrowing 
of  money,  shall  be  passed  except  by  a  two-thirds  recorded  vote  of  the  members  elected 
to  each  branch.  If  it  requires  a  two-thirds  vote  to  be  passed  by  the  tv'o  branches,  then 
in  order  to  pass  such  an  ordinance  over  the  mayor's  veto  it  ought  to  require  a  larger 
Tote  than  it  required  to  originally  pass  it. 

It  will  not  do  for  us  to  think  for  one  moment  that  a  measure  cannot  be  gotten 
ordinance  is  passed,  except  in  one  particular  instance,  it  is  to  be  by  a  majority  vote. 
When  it  is  passed  by  a  majority  vote,  and  vetoed,  you  then  require  that  that  veto 
■shall  be  overriden  by  a  two-thirds  vote.  Recognizing  that  the  mayor  ought  to  have 
strong  reasons  for  his  veto,  it  requires  a  larger  vote  to  override  his  veto  than  to  pass 
the  ordinance.  I  respectfully  submit  to  your  consideration  whether,  as  to  the  finances 
of  a  city,  a  larger  vote  ought  not  to  be  required  than  is  required  in  order  to  pass  an 
ordinary  privilege  to  a  man  to  swing  a  gate  out  upon  the  sidewalk  instead  of  into  his 
yard  or  to  hang  a  sign,  or  matters  of  general  legislation.  When  you  come  to  the  ques- 
tion of  the  finances  of  a  city,  I  submit  you  ought  to  require  som.e  protection  to  be 
given  to  the  city,  as  you  require  some  protection  to  be  given  to  the  State.  This  has 
been  a  feature  of  the  charter  of  the  city  of  Richmond,  and  has  been  a  great  benefit  to 
US;  and  I  think  all  the  cities  of  the  Commonwealth  ought  to  be  put  upon  the  basis  of 
having  some  protection  to  their  finances. 

It  will  not  do  for  us  to  think  for  one  moment  that  a  measure  cannot  be  gotten 
through  the  city  council  far  more  easily  and  quickly  than  through  the  General  Assem- 
bly. We  must  recognize  the  fact  that  these  councils  frequently  meet  only  for  an 
hour  or  two  at  a  time.  The  members  are  men  of  business  who  are  anxious  to  get 
away.  They  meet  at  night,  and  frequently  desire  to  leave  as  soon  as  possible.  They 
pass  these  resolutions  with  great  speed.  And  ver^^  often  with  great  injury  to  citizens  of 
the  Commonwealth. 

My  amendment  simply  proposes  to  impose  the  restriction  that  the  finances  of  a 
city  shall  not  be  spent  without  a  vote  of  two-thirds  of  the  city  council.  If  a  measure 
of  that  kind  passes,  it  goes  to  the  mayor,  and  it  is  not  probable,  except  in  improper 
cases,  that  the  mayor  will  undertake  to  exercise  his  veto  power;  but  if,  having  had  a 
two-thirds  vote  on  the  measure,  the  mayor  shall  then  see  the  necessity  of  vetoing  it,  I 
respectfully  submit  it  shall  call  for  more  protection,  by  requiring  a  larger  vote  to  over- 
ride the  veto.  It  is  wise  to  put  here  for  the  benefit  of  all  the  cities  any  reasonable 
safeguard  we  can  throw  around  them.  The  proposition  is  not  to  pass  any  general 
legislation  for  the  purpose  of  showing  us  how  things  shall  be  done.  It  is  simply  a 
limitation  as  to  the  manner  in  which  the  money  of  the  cities  shall  be  disposed  of. 
I  can  see  no  objection  to  it.  unless  there  is  some  objection  on  the  ground  +hat  we  are  filling 
our  Constitution  with  too  many  provisions.  I  cannot  see  how  any  one  can  obiect  to  re- 
quiring a  larger  vote  to  pass  a  measure  involving  $10,000  worth  or  a  million  dollars' 
worth  of  the  bonds  of  the  city  over  the  mayor's  veto,  recognizing  the  sneedv  and  hasty 
manner  in  which  this  kind  of  legislation  is  often  passed,  than  is  required  to  pass  a 
measure  giving  authority  to  a  man  in  reference  to  where  he  can  swing  his  sign  or  his 


1954  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


gate.  Unless  some  provision  of  this  kind  is  adopted,  no  larger  vote  is  required  as  to 
the  important  matter  of  the  finances  of  a  city  than  is  required  in  regard  to  the  small 
matters  I  have  mentioned. 

The  committee  has  gone  in  this  direction  to  some  extent,  and  I  am  following  that 
line.  If  I  may  anticipate  what  is  in  the  report  of  the  committee,  you  will  find  when 
you  come  to  Section  11,  in  regard  to  selling  the  property  of  the  city,  such  as  the  docks 
and  water  front  and  streets  and  parks,  there  is  a  provision  requiring  a  recorded  vote 
of  three-fourths.  That  is  a  recognition  on  the  part  of  the  committee  that  the  actual 
tangible  property  of  the  city,  the  real  estate,  shall  be  protected  by  a  three-fourths 
vote.  Far  more  harm  is  done  by  the  expenditure  of  money,  and  it  is  far  easier  to  get 
an  appropriation  through  than  the  undertaking  to  sell  any  of  the  property  of  the  city. 
It  is  a  great  deal  easier  to  get  an  appropriation  of  $1,000  or  $2,000,  or  perhaps  $10,000, 
through  the  city  council  than  it  is  to  get  through  a  resolution  authorizing  the  sale 
of  the  property  of  the  city.  That  is  a  thing  from  which  most  of  the  members  shrink 
far  more  than  from  a  mere  appropriation;  and  yet,  as  to  this  property,  the  report 
requires  a  three-fourths  vote,  while,  as  to  the  finances,  it  only  requires  a  majority 
vote.    That  is  not  prudent. 

I  simply  ask  that  as  to  the  finances  of  the  city  a  two-thirds  vote  may  be  required 
to  give  us  the  same  protection  that  is  given  as  to  visible  property,  because  the  danger 
in  regard  to  the  finances  is  as  great  as,  and  perhaps  greater,  than  in  regard  to  the 
real  estate  or  tangible  personal  property. 

It  is  along  the  line  of  the  committee's  report,  but  it  simply  undertakes  to  ask 
for  some  broadening  of  it  to  protect  the  money  of  the  city  as  well  as  its  actual  prop- 
erty. 

On  motion  of  Mr.  Carter,  the  committee  rose  and  the  President  resumed  the  chair. 
The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  Thursday, 
January  23,  1902,  at  10  o'clock  A.  M. 


THURSDAY,  January  23,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  B.  Beauchamp. 

Mr.  Mcllwaine:  Mr.  President,  I  rise  to  a  question  of  personal  privilege.  On 
yesterday,  when  the  gentleman  from  Pulaski  (Mr.  Wysor)  was  speaking,  I  rose  and 
stated  I  was  sure  the  gentleman  did  not  intend  to  misrepresent  me,  but  that  he  was 
doing  so.  I  find,  on  looking  over  the  stenographic  report  of  the  remarks  I  made  day 
before  yesterday.  I  was  mistaken.  I  used  this  language:  "I  represent  one  of  the 
counties,  and  I  will  stand  with  the  gentleman  from  Fairfax  (Mr.  Moore)  in  an  effort 
to  try  and  get  the  action  of  the  Convention  in  regard  to  the  county  treasurer  brought 
up  again." 

That  language,  of  course,  did  not  embrace  anything  about  the  proposition  of  the 
gentleman  from  Fairfax  (Mr.  Moore).  The  gentleman  had  represented  me  as  standing 
by  Mr.  Stebbins,  and  it  did  not  occur  to  me  at  all  at  the  time  that  the  proposition 
of  the  gentleman  from  Halifax  (Mr.  Stebbins)  and  the  proposition  of  the  gentleman 
from  Fairfax  CMr.  Moore)  were  substantially  the  same.  Of  course,  I  make  the  amends 
to  the  gentleman  from  Pulaski. 

On  motion  of  Mr.  Brooke,  the  Convention  resolved  itself  into  Committee  of  the 
"Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organiza- 
tion and  Government  of  Cities  and  Towns,  Mr.  Withers  in  the  chair. 

The  Chairman:  The  pending  question  is  on  agreeing  to  the  amendment  offered 
by  the  gentleman  from  the  city  of  Richmond  (Mr.  Meredith)  to  Section  9. 


DEBATES  OF  THE  COXSTITUTIONAL  COXYEXTIOX  OF  VIRGINIA.  1955 

Mr.  Barbour:  Mr.  Chairman,  before  the  vote  is  taken  I  wish  to  call  the  atten- 
tion of  the  committee  to  the  fact  that  the  adoption  of  this  amendment  will  be  sub- 
versive of  all  the  principles  of  government  upon  which  our  government  is  founded. 
That  is  the  rule  of  the  majority.  It  seems  to  me  it  would  be  essentially  vicious  in  its 
result.  It  absolutely  puts  the  finances  of  every  city  at  the  mercy  of  a  combination 
made  by  a  minority  of  the  council.  It  would  absolutely  enable  a  minority  of  the 
council  to  hold  up  every  appropriation  bill  in  the  city  council. 

It  seems  to  me  that  if  we  assume  a  majority  of  its  inhabitants  is  capable  of  gov- 
erning a  city,  then  we  must  also  concede  that  a  majority  of  the  council,  their  repre- 
sentatives, are  capable  of  governing  it.  If,  however,  we  assume  that  a  minority  is 
always  right  and  a  majority  is  always  wrong,  then  this  amendment  should  be  put  in. 
A  minority  may  sometimes  be  right,  but  it  is  not  usually  so,  and  for  that  purpose, 
for  the  purpose  of  checking  hasty  legislation,  the  veto  power  is  given  to  the  mayor. 
But  a  proposition  to  absolutely  put  it  into  the  power  of  a  minority  of  a  city  council 
to  hold  up  every  appropriation  bill,  or  any  appropriation  bill,  it  seems  to  me,  is  essen- 
tially vicious  in  its  result,  and  must  be  so.  I  sincerely  hope  that  this  amendment  of 
the  gentleman  from  Richmond  will  not  be  adopted.  We  have  thrown  around  this 
matter  every  safeguard  that  can  be  thrown  around  it  properly,  if  the  people  of  the 
cities  of  our  Commonwealth  are  capable  of  self-government,  and  we  are  proceeding 
upon  that  theory. 

Mr.  Meredith:  Mr.  Chairman,  I  should  not  detain  the  committee  a  second  time 
with  this  matter  except  that  I  think  it  is  of  great  importance.  My  friend  who  has 
just  taken  his  seat  (Mr.  Barbour)  has  given  an  illustration  of  the  principle  he  lays 
down  that  it  would  be  very  dangerous  to  require  a  two-thirds  vote  of  the  Common 
Council  to  make  an  appropriation  of  the  city  finances.  In  contradistinction  to  that 
and  in  opposition  to  it,  and  to  show  that  the  evil  the  gentleman  recites  is  purely  an 
imaginary  one,  I  simply  wish  to  call  attention  to  the  charter  of  the  city  of  Richmond — 
and  I  get  very  much  of  the  language  of  my  amendment  from  that  charter — which 
provides  that  "for  all  ordinances  or  resolutions  appropriating  money  exceeding  the 
sum  of  one  hundred  dollars,  imposing  taxes,  or  authorizing  the  borrowing  of  money, 
a  vote  of  two-thirds  of  all  the  members  elected  to  each  branch  shall  be  necessary,  and 
the  yeas  and  nays  shall  be  entered  on  the  journal  of  each  branch  respectively." 

That  has  been  the  law  of  this  city  for  thirty  years,  and  not  one  single  instance 
of  evil  has  ever  come  from  it.  On  the  other  hand,  there  are  gentlemen  on  this  floor 
who  have  taken  part  in  our  city  government  who  can  prove  that  it  has  been  an  im- 
mense safeguard  to  us. 

So,  in  contradistinction  to  the  imaginary  evil  which  the  gentleman  thinks  will 
flow  from  this  language,  I  cite  a  charter  that  has  been  in  existence  for  thirty  j^ears, 
and  the  practical  working  of  which  has  been  beneficial. 

Now,  gentlemen,  do  not  let  us  indulge  in  imaginary  fears.  Do  not  let  us  be  led 
off  from  what  we  can  see  is  reasonable  and  proper  simply  by  the  ide?.  that  something 
may  happen  that  will  tend  to  hurt  us;  and  I  think  you  will  see  that  it  is  reasonable 
and  proper  if  I  can  show  you  it  has  been  in  practical  operation  for  thirty  years  in  the 
largest  city  of  the  Commonwealth,  and  has  been  a  great  benefit  to  us. 

What  I  have  said  is  in  answer  to  the  evil  the  gentleman  imagines  will  occur. 
Mr.  Chairman,  I  hate  to  repeat  what  I  have  said  before,  but  I  have  been  so  associated 
with  municipal  governments  for  a  number  of  years  that  I  feel  I  can  speak  with  some 
knowledge  on  the  subject.  I  claim  there  is  no  evil  now  existing  in  municipalities 
greater  than  these  two:  The  question  of  the  disposition  and  use  of  the  finances,  and 
the  selling  or  giving  away  of  the  franchises  of  a  municipal  corporation.  If  you  can 
throw  around  the  municipal  government  protection  in  those  two  instances,  I  respect- 
fully submit  you  will  need  no  protection  as  to  the  qualifications  of  the  members  of 
your  Common  Council  or  the  qualifications  of  the  electors  to  the  legislative  branch 
of  city  government. 


1956 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Has  any  gentleman  within  a  year  had  his  attention  called  or  directed  more  to  any 
subject  than  to  the  corruption  of  municipal  government?  It  is  idle  for  gentlemen  to 
stand  on  this  floor  and  say  they  have  lived  free  of  that.  There  is  no  use  of  gentlemen 
boasting  that  their  city  governments  have  escaped  this  evil,  because  if  others  have 
suffered  from  the  ordinary  evil  consequences  of  municipal  government,  they  are  not 
likely  to  be  free  from  them.  Is  it  not  wise  that  you  should  look  at  the  experience  of 
others  in  the  past,  no  matter  whether  it  be  the  experience  of  a  man  or  of  a  municipal 
government?  Is  it  not  wise  that  we  should  see  what  has  been  done  and  suffered 
in  the  past  by  others,  and  that  we  should  avoid  those  dangers  and  evils? 

Mr.  Barbour:  What  is  the  veto  power  in  the  mayor  of  the  city  of  Richmond  at 
present? 

Mr.  Meredith:  I  have  called  your  attention  to  the  fact,  and  I  feel  very  glad  of 
the  fact  that  you  have  put  in  here  a  provision  requiring  that  the  veto  of  the  mayor 
shall  only  be  overcome  by  a  two-thirds  vote.  It  is  a  wise  provision;  but  that  is  not  the 
question  now.  You  have  stated  here  that  you  fear,  if  a  two-thirds  vote  is  required 
to  appropriate  city  money,  it  will  result  in  the  city  government  being  tied  up.  I  am 
showing  you  are  in  error  as  to  that.  I  admit  you  put  another  safeguard  around  it, 
but  that  is  not  all  we  want.  We  want  the  fullest  protection  as  to  what  we  believe  to 
be  the  greatest  evil  in  municipal  government. 

Mr.  Barbour:  If  the  gentleman  will  permit  me,  I  said,  or  I  intended  to  say,  they 
could  tie  it  up  or  they  could  get  their  vicious  measures  through;  and  I  believe  this  very 
feature  in  the  charter  of  the  city  of  Richmond  is  responsible  for  the  vicious  legisla- 
tion. 

Mr.  Meredith:  I  would  advise  the  gentleman  not  to  speak  too  boldly  and  con- 
fidently upon  a  matter  about  which  I  presume  he  is  somewhat  ignorant,  because  I  do 
not  believe  he  is  familiar  with  what  has  been  done  in  our  city  government  to  an  extent 
which  will  justify  him  in  making  such  a  broad  statement. 

Mr.  Barbour:  I  have  heard  the  gentleman  from  Richmond  himself  say  they  have 
made  vicious  appropriations.    I  take  his  word  for  it. 

Mr.  Meredith:  Yes,  sir;  but  you  never  heard  me  ascribe  it  to  the  cause  to  which 
you  ascribe  it. 

Mr.  Barbour:  I  am  permitted  to  draw  my  own  conclusions.  When  I  find  you  have 
a  wrong  principle  embodied  in  your  charter,  I  have  a  right  to  conclude  the  vicious 
results  flow  from  it. 

Mr.  Meredith:  No,  sir;  you  have  a  right  to  conclude  that  vicious  results  come 
from  all  human  institutions,  that  there  is  not  a  human  institution  which  can  be  de- 
vised that  has  not  evil  in  it,  and  evil  coming  from  it;  but  is  that  any  reason  why  we 
should  not  put  safeguards  around  it,  and  minimize  the  evil  as  much  as  possible?  That 
is  what  I  am  pleading  for  on  this  floor. 

Mr.  Chairman,  I  wish  to  call  your  attention  to  the  fact  that  the  growth  of  munici- 
pal government  and  of  municipal  law  has  virtually  taken  place  in  the  last  fifty  years. 
I  do  not  mean  to  say  there  have  not  been  some  large  cities  in  the  past,  but  we  know 
that  the  largest  city  in  the  world,  London,  had  no  municipal  government  extending 
over  its  limits  until  lately.  In  the  last  few  years  it  has  had  municipal  government. 
You  know  of  the  evils  in  the  cities  of  Baltimore,  New  York,  Philadelphia,  and  possibly 
to  some  extent  in  Boston,  and  certainly  in  Chicago.  You  know  the  evils  that  have 
existed  in  municipal  governments  far  exceed  the  evil  and  corruption  that  exists  in 
State  governments.  No  man  can  challenge  that  statement.  Now,  if  you  see  greater 
dangers  existing  as  to  municipalities  than  exist  as  to  State  governments,  I  earnestly 
urge  that  you  will  take  such  a  course  of  action  as  will  prevent,  as  far  as  possible,  the 
extension  of  those  evils. 

Mr.  Chairman,  I  said  on  yesterday  that  you  must  recognize  the  difference  between 
the  character  of  the  legislative  body  of  a  municipality  and  that  of  a  State  government. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  1957 

A  tivate  Legislature  meets  here  once  every  year,  or  once  in  two  years.  It  sits  here  for 
ninety  days,  and  it  sits  in  the  day  time.  It  is  carried  on  by  men  who  are  devoting 
their  entire  time  to  it.  It  has  its  committees  that  pass  on  these  matters.  Now  take 
the  Legislature  of  a  municipal  government.  It  meets  at  7  o'clock  in  the  evening  and 
tries  its  best  to  get  through  and  adjourn  by  11  o'clock.  Legislation  involving  thousands 
if  not  tens  of  thousands  and  hundreds  of  thousands  of  dollars  is  passed  after  a  few 
hours'  consideration. 

If  you  can  see  the  evil  that  will  come  from  such  a  course  of  action,  if  you  can 
see  that  this  speedy  legislation  is  necessarily,  whether  corrupt  or  not,  obliged  to  be 
injurious  because  a  man  has  not  been  able  to  give  it  the  necessary  attention,  I  say 
you  ought  to  put  around  it  such  safeguards  as  are  possible.  I  repeat,  if  you  will  give 
protection  to  the  city  governments  against  themselves,  you  will  do  nothing  more  than 
encourage  the  prosperity  of  the  State.  I  know,  Mr.  Chairman,  it  has  not  been  put  iu 
the  Constitutions  of  the  past,  but  that  is  no  reason  why  we  should  not  put  it  in  this 
Constitution  if  it  is  wise  to  do  so,  so  that  the  cities  of  the  Commonwealth  shall  not 
stand,  as  other  cities  have  stood,  a  scorn  and  a  byword  for  corruption  through  all 
the  world. 

Now,  I  wish  to  call  your  attention  once  more  to  the  fact  that  I  am  not  asking 
anything  inconsistent  with  the  report  of  the  committee.  If  you  will  turn  to  Section 
11  of  the  report,  you  will  see  it  has  provided  that  none  of  the  property  of  the  cities 
shall  be  sold  except  by  a  three-quarters'  vote,  and  that  if  a  bill  of  that  kind  is  passed 
and  vetoed,  it  shall  be  passed  over  the  mayor's  veto  by  a  three-quarters'  vote.  It  can- 
not possibly  be  that  men  who  are  familiar  with  municipal  affairs  do  not  know  that 
it  is  far  more  difficult  to  sell  a  piece  of  land  belonging  to  a  city  than  it  is  to  hurry 
through  an  appropriation  of  money  that  happens  to  be  in  the  treasury.  The  one  is 
easy  and  the  other  is  difficult;  and  yet  around  the  one  that  is  difficult  you  throw  a 
high  safeguard  by  requiring  a  three-quarters'  vote. 

I  believe  in  putting  in  this  Constitution  limitations  upon  municipal  power.  I  be- 
lieve it  is  best  for  the  municipalities;  but  I  believe  if  we  start  to  do  it,  we  ought  to 
go  to  the  extent  necessary  to  give  them  protection,  and  not  pick  out  these  things 
as  to  which  the  dangers  are  very  small,  but  select  those  things  as  to  which  the  danger 
is  greatest  and  which  occur  in  regard  to  the  misappropriation  of  the  people's  money. 
All  I  ask  is  that  you  require  that  every  appropriation  of  the  .moneys  of  the  cities,  or 
every  ordinance  or  joint  resolution  imposing  taxes  and  authorizing  the  borrowing  of 
money,  shall  be  passed  by  a  two-thirds  vote;  that  you  will  put  in  your  Constitution 
something  that  will  tie  the  hands  of  the  officers  of  the  city  government  and  prevent 
them  from  wasting  the  people's  money.  You  know  that  if  there  is  a  needed  appro- 
priation, it  is  more  than  probable,  almost  certain,  that  it  will  go  through.  You  know 
that  if  it  is  passed  and  it  goes  to  the  mayor,  the  mayor  will  not  veto  it,  unless  there  is 
some  crying  evil  about  it,  after  it  has  been  passed  by  a  two-thirds  vote.  We  only 
ask  that  if  the  evil  is  so  glaring  and  so  vicious,  that  he  will  put  his  disapproval  on 
it,  it  shall  require  a  three-fourths'  vote  to  pass  it  over  his  veto.  I  ask  for  the  finances 
of  the  cities  the  same  protection  which  the  committee  has  given  to  the  sale  of  a  little 
piece  of  land  of  the  cities. 

Mr.  Hatton:  I  offer  this  amendment,  that  the  words  "two-thirds"  be  stricken  out, 
and  the  words  "a  majority"  be  substituted,  and  all  the  amendment  after  the  word 
"cities"  be  stricken  out,  so  that  the  amendment  will  read  as  follows: 

No  ordinance  or  joint  resolution  apprropriating  money  exceeding  the  sura  of  $100, 
Imposing  taxes  or  authorizing  the  borrowing  of  money,  shall  be  passed  except  by  a 
recorded  vote  of  a  majority  of  all  the  members  elected  to  each  branch  of  the  council  of 
said  city. 

Mr.  Meredith:    I  would  say  to  the  gentleman  that  unless  he  desires  to  have  a  vote- 


1958  DEBATES  OE  THE  COOSrSTITUTIONAL  COOsTVENTION  OE  VIRGINIA. 


on  that  question  first,  I  can  see  no  necessity  for  it,  because  if  my  resolution  is  voted 
down  and  we  go  back  to  the  provision  contained  in  the  committee's  report,  it  does  not 
require  anything  to  enable  the  council  to  spend  a  million  dollars  of  the  people's  money 
if  they  wish  to. 

Mr.  Hatton:  The  gentleman  from  Richmond  evidently  does  not  see  the  force  of 
my  amendment.  His  amendment  requires  the  vote  of  two-thirds  of  the  members 
elected.  Under  the  committee's  report  it  can  be  done  by  a  majority  of  a  quorum.  I 
take  the  middle  ground,  and  require  it  to  be  done  by  a  majority  of  all  the  members 
elected. 

Now,  Mr.  Chairman,  I  yield  to  no  man,  and  net  even  to  the  gentleman  from  Rich- 
mond, in  my  earnest  desire  to  see  the  financial  condition  of  the  cities  in  this  Com- 
monwealth amply  safeguarded  and  protected,  but  at  the  same  time  I  do  not  desire  to 
see  the  councils,  or  other  legislative  bodies  of  these  cities,  unduly  restricted,  and  I 
believe  that  the  amendment  of  the  gentleman  from  Richmond  in  requiring  a  two-thirds 
vote  of  all  the  members  elected  to  a  city  council  is  an  undue  restriction.  I  believe  it  is 
proper  and  wise  to  restrict  the  councils,  in  the  appropriation  of  money  and  the  impos- 
ing of  taxes  and  the  borrowing  of  money,  to  a  vote  of  a  majority  of  all  the  members 
elected  rather  than  to  a  majority  of  a  bare  quorum,  and  there  is  a  considerable  differ- 
ence between  those  two  requirements. 

My  amendment  also  strikes  out  of  the  amendment  offered  by  the  gentleman  from 
Richmond  that  part  which  requires  that  in  order  to  pass  one  of  these  measures  over 
the  veto  of  the  mayor  there  shall  be  a  recorded  vote  of  three-fourths  of  all  the  members 
elected.  I  think  the  report  of  the  committee  with  reference  to  the  veto  and  the 
passing  of  measures  over  the  veto  should  be  left  as  it  is,  namely,  that  a  measure  can 
be  passed  over  the  veto  of  the  mayor  by  a  two-thirds  vote.  I  hope,  Mr.  Chairman, 
that  this  amendment  may  be  adopted,  or  at  least  that  the  amendment  of  the  gentleman 
from  Richmond  may  not  be  adopted  in  its  present  form. 

Mr.  Meredith:  Mr.  Chairman,  I  call  the  gentleman's  attention  to  Section  11. 
When  it  comes  to  the  sale  of  a  little  piece  of  property  in  the  city,  it  requires  that  it 
shall  not  be  sold  except  by  a  recorded  vote  of  three-fourths  of  all  the  members  elected. 

Mr.  Hatton:  But  that  is  another  section  and  another  story.  We  are  not  on  that 
story  now. 

Mr.  Meredith:  I  call  your  attention  to  the  fact  that  it  is  on  the  same  line  of 
story.    Finances  and  property  are  the  same  thing. 

Mr.  Hatton:  When  we  get  to  that  bridge  we  will  cross  it.  We  cannot  cross  it 
until  we  get  to  it.  I  hope  it  may  be  the  pleasure  of  the  Committee  of  the  Whole  to 
adopt  the  amendment  which  I  have  offered  to  the  amendment  of  the  gentleman  of 
Richmond  (Mr.  Meredith).    I  think  that  is  a  proper  restriction. 

Mr.  Meredith:  Before  the  gentleman  from  Norfolk  (Mr.  Brooke)  begins  his 
closing  in  support  of  the  report  I  wish  to  say,  as  has  been  suggested  to  me  by  my 
associate  (Mr.  Gordon),  that  if  the  proposition  of  the  gentleman  from  Portsmouth 
(Mr.  Hatton)  is  adopted  the  city  of  Richmond  will  be  put  in  a  worse  condition  than 
that  in  which  she  is  now.  We  require  by  our  charter  a  two-thirds  vote  before  one 
hundred  dollars  is  appropriated.  If  the  gentleman's  amendment  is  adopted  as  pro- 
posed by  him,  all  that  would  be  required  is  a  majority  vote  of  the  members  elected  to 
both  branches  of  the  city  council;  so  you  will  deprive  us  of  a  protection  we  have  had 
for  thirty  years,  the  benefit  of  which  we  feel. 

Mr.  George  K.  Anderson:  I  desire  to  ask  whether  you  think  it  is  necessary  to 
put  this  provision  in  the  Constitution.  You  say  you  have  had  it  from  the  Legislature 
for  thirty  odd  years.  Do  you  not  think  you  would  be  safe  in  leaving  that  matter  where 
the  committee  has  left  it? 

Mr.  Meredith:  I  do  not  know  whether  a  city  might  not  get  it  from  the  Legisla- 
ture, but  I  can  suggest  this  to  you.    If  we  undertake  to  amend  our  charter  as  some  of 


DEBATES  OF  THE  COXSTITL'TIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


1959 


the  business  men  of  the  city  of  Richmond  think  best,  and  the  Common  Council  does  not 
approve  of  it,  we  have  a  fight  immediately  made  against  it;  and  there  are  so  many 
more  of  them,  and  they  have  such  political  influences  that  they  have  frequently  in- 
fluenced the  members  of  the  Legislature  against  proposed  judicious  legislation.  I  can 
cite  one  instance  where  we  attempted  to  amend  the  charter  of  the  city  of  Richmond 
as  to  the  Fire  Department.  I  was  then  city  attorney,  and  I  was  unable  to  get  more 
than  one  member  out  of  five  to  stand  by  it. 

You  will  recall  the  fact  that  these  are  to  be  general  laws.  Some  of  the  cities  who 
know  its  value  want  this  provision  in  here.  Suppose  a  majority  of  the  cities  do  not 
want  it;  how  are  we  going  to  have  an  exception  made  in  our  favor;  requiring  a  two- 
thirds  vote  as  to  our  finances,  when  the  majority  of  the  cities  do  not  want  it.  The 
evil  will  be  that  we  will  lose  the  benefit  of  what  we  now  have  in  our  charter. 

Mr.  George  K.  Anderson:  Mr.  Chairman,  the  committee  had  this  matter  under 
consideration^  and  very  many  other  matters  of  the  same  sort;  and  for  the  very  reason 
suggested  by  my  friend  from  Richmond  (Mr.  Meredith)  the  committee  left  out  these 
matters  of  administrative  policy  as  far  as  it  was  possible  to  do  so.  Mr.  Chairman, 
before  the  chairman  of  the  committee  closes  the  debate  I  wish  to  say  a  few  words. 
The  gentleman  from  Richmond  (Mr.  Meredith)  asks  for  some  logical  argument  why 
a  provision  of  this  sort  should  not  be  put  into  the  Constitution.  I  will  say  to  my 
friend  that  the  Legislature  of  Virginia,  which  makes  appropriation  annually  of  a  large 
sum  of  money,  only  requires,  in  order  to  pass  a  measure,  a  majority  vote  of  that  body; 
that  the  Congress  of  the  United  States,  which  makes  an  appropriation  of  nearly  a  bil- 
lion of  dollars  annually,  only  requires,  in  order  to  pass  a  measure,  a  majority  vote 
of  the  members  of  that  body.  Now,  Mr.  Chairman  and  gentlemen,  this  comniittee  has 
endeavored  to  furnish  to  the  Convention  a  plan  embracing  an  executive  department  for 
the  city,  a  judiciary  department  for  the  city  and  a  legislative  department  for  the  city. 

Mr.  Meredith:  Does  not  the  gentleman  himself  recognize  the  difference  between 
a  municipal  council  and  the  character  of  the  men  and  the  method  in  which  legislation 
is  carried  through  there,  and  the  Congress  of  the  United  States  and  the  State  Legis- 
lature? 

Mr.  George  K.  Anderson:  Certainly  I  recognize  the  fact  that  there  is  some 
difference  between  them,  but  I  say  if  either  body  is  more  conservative  than  the  other 
body,  if  either  is  more  careful  in  the  expenditure  of  its  moneys  than  the  other  body, 
it  would  be  the  smaller  body,  the  one  that  is  nearest  to  the  money. 

Now,  my  friend  suggests  another  idea,  that  this  committee  has  said  to  the  Con- 
vention that  in  order  to  sell  a  little  piece  of  city  property  a  three-fourths  vote  of 
the  council  is  required.  I  call  my  friend's  attention  to  the  fact  that  that  provision 
has  reference  to  the  actual  sale  of  a  street  in  the  city.  It  has  reference  to  the  sale  of 
a  park  that  has  been  dedicated  to  the  public.  It  has  reference  to  that  class  of  prop- 
erty— not  a  little  piece  of  property  bought  for  a  city  hall  and  not  found  useful  for  that 
purpose.    It  does  not  refer  to  that  class  of  property  at  all. 

Mr.  Meredith:  If  you  walk  up  Broad  street  here  in  Richmond  you  will  find  at 
Brook  avenue  a  little  triangular  park,  which  is  said  to  have  cost  a  great  deal  of  money. 
It  is  a  small  piece  of  land:  I  suppose  half  an  acre  in  extent.  You  require  a  three-fourths 
vote  to  dispose  of  that  land,  and  yet  you  only  require  a  two-thirds  vote  for  an  appro- 
priation of  a  million  dollars. 

Mr.  George  K.  Anderson:  The  difference  is  this:  The  people  of  Richmond  have 
set  aside  that  little  triangle  at  Brook  avenue  and  Adams  street  as  a  park.  They  do  not 
want  houses  there.  It  would  not  only  mar  the  beauty  of  the  city,  but  it  would  be  a 
disadvantage  and  an  obstruction  to  have  them  there,  and  I  say  a  three-fourths  vote 
ought  to  be  required  to  sell  that  little  piece  of  ground.  The  revenue  of  a  city  is 
levied  to  be  spent.  What  are  your  taxes  raised  for  but  to  be  spent  on  the  streets  of 
the  city?    Your  parks  are  not  laid  out  and  beautified  only  to  be  sold,  and  therefore 


1960  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  committee  said  that  in  order  to  sell  one  it  should  require  a  three-fourths  vote  of 
the  council,  but  in  order  to  make  an  appropriation  of  money  the  committee  said 
nothing,  because  the  committee  felt,  as  I  have  said,  that  that  was  a  matter  of  admin- 
istrative policy  that  ought  not  to  be  incorporated  in  the  Constitution,  and  that  there 
is  no  reason  at  all  for  it. 

Mr.  Brooke:  Mr.  Chairman,  I  wish  to  say  only  a  few  words  in  reference  to  this 
matter.  My  objection  to  the  amendment  arises  largely  from  the  fact  that  it  takes 
us  into  a  field  of  legislation  which  I  think  ought  to  be  avoided  in  constitutional  enact- 
ments. The  committee  felt  that  they  had  guarded  these  questions  as  well  as  it  was 
possible  to  be  done,  or  certainly  as  well  as  it  was  reasonable  to  be  done,  and  we  did 
not  feel  that  we  ought  to  go  further  into  that  field  of  legislation  and  say  how  the 
councils  should  legislate  on  particular  subjects  of  legislation.  Now,  if  the  principle  of 
the  gentleman's  amendment  is  correct,  it  Is  a  matter  which  can  be  dealt  with  by  the 
Legislature  in  his  own  city  charter;  it  has  been  dealt  with  by  the  Legislature  in  the 
city  charter  for  the  city  of  Norfolk.  How  any  one  can  suppose  that  the  Legislature, 
after  having  again  and  again  made  such  provision  as  that  in  their  legislative  charters, 
would  refuse  to  make  it  hereafter  I  cannot  understand.  Now,  we  have  guarded  the 
misappropriation,  or  the  careless  appropriation,  or  the  corrupt  appropriation,  of  money 
by  providing  that  these  ordinances  shall  all  be  submitted  to  the  mayor,  and  that  he 
shall  have  the  right  to  veto  them,  and  that  they  shall  not  be  passed  over  his  veto  except 
by  a  two-thirds  vote. 

That  brings  us  down  to  this  proposition:  The  gentleman  is  contending  for  a  two- 
thirds  vote  for  an  original  appropriation,  and  in  order  to  get  that  we  have  to  face 
another  evil  of  legislation,  and  put  a  legislative  enactment  in  our  constitutional  pro- 
vision. That  veto  power  bestowed  upon  the  mayor  by  this  artictle  provides  in  the 
final  analysis  for  a  two-thirds  vote  on  these  very  questions. 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman  from^ 
Portsmouth  to  the  amendment  offered  by  the  gentleman  from  Richmond. 

The  amendment  was  rejected,  there  being,  oh  a  division,  ayes,  11;  noes,  41. 

The  Chairman:  The  question  now  recurs  on  agreeing  to  the  amendment  offered 
by  the  gentleman  from  Richmond  (Mr.  Meredith),  which  the  Secretary  will  again  read. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  30;  noes,  30. 

Mr.  R.  L.  Gordon:  I  move  to  reconsider  the  vote  by  which  the  amendment  of  the 
gentleman  from  Norfolk  (Mr.  Thom)  to  section  7  was  rejected.  As  the  gentleman 
from  Richmond  (Mr.  Pollard)  is  absent,  I  move  to  pass  the  motion  by. 

The  motion  to  pass  by  was  agreed  to. 

The  Chairman:    The  Secretary  will  read  Section  10. 

Sec.  10.  No  street  railway,  gas,  water,  steam,  or  electric  heating,  electric  light  or 
power,  cold  storage,  compressed  air,  viaduct,  conduit,  telephone  or  bridge  company,  nor 
any  corporation,  association,  person  or  partnership,  engaged  in  these  or  like  enter- 
prises, shall  be  permitted  to  use  the  streets,  alleys  or  public  grounds  of  a  city  or  town 
without  the  previous  consent  of  the  corporate  authorities  of  such  city  or  town. 

The  Chairman:    Are  there  any  amendments  to  be  offered  to  Section  10? 
Mr.  Summers:    I  offer  the  following  amendment,  to  come  in  at  the  end  of  the 
section : 

Add  at  the  end  of  section  10  the  following:  "Unless  by  proper  condemnation  pro- 
ceedings to  be  provided  for  by  law.  ' 

Mr.  Chairman  and  gentlemen  of  the  committee,  my  reason  for  offering  that 
amendment  is  this:  You  will  notice  that  if  this  section  is  adopted,  there  are  numerous 
instances,  and  particularly  in  my  country,  where  it  gives  the  first  occupiers  of  the  city 
or  town  a  monopoly  forever.    There  are  one  city  and  twoi  towns  in  my  section.  If 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIPtGIXIA. 


19(51 


tnis  section  prevails,  they  can  stop  all  future  telephone  companies,  telegraph  com- 
panies, railroad  companies,  and  all  other  associations  from  coming  into  those  places 
unless  they  tunnel  through  a  mountain,  which  would  cost  millions  of  dollars.  I  think 
the  committee  should  give  this  matter  serious  consideration.  I  am  dovrn  on  monopo- 
lies and  corporations,  as  we  all  are;  but  this  would  be  establishing  a  monopoly  that 
time  can  never  alter. 

In  the  coming  city  of  Damascus,  in  my  county,  there  is  a  telephone  company,  a 
telegraph  company,  and  a  railroad  company,  and  if  this  provision  prevails,  none  of  the 
corporations  that  own  those  franchises  can  be  driven  away.  They  own  the  town  and 
will  own  the  city.  Now,  will  some  wise  man  from  the  East  or  from  the  West  explain 
how  we  can  prevent  a  money-making  monopoly  that  will  exist  forever?  This  is  some- 
thing, gentlemen,  which  I  think  needs  your  serious  consideration,  but  you  can  do  v/ith 
It  whatever  you  please. 

Mr.  Brooke:  Mr.  Chairman,  I  simply  want  to  say  that  this  is  a  proposition  which 
It  occurred  to  the  committee  would  hardly  meet  with  any  opposition.  It  is  so  entirely 
along  the  lines  of  home  rule  in  matters  which  are  purely  local  that  we  felt  v^'e  were 
at  least  safe,  even  before  a  body  of  this  sort,  in  making  this  provision. 

Mr.  Carter:  It  seems  to  me  there  is  one  point  which  may  occasion  some  criticism. 
You  are  dealing  only  with  matters  that  are  local  to  the  cities,  as  I  understand  You 
sa3^,  '"'Xo  street  railway,  gas,  water,  steam  or  electric  heating,  electric  light  or  power, 
cold  storage,  compressed  air,  viaduct,  conduit,  telephone  or  bridge  company."  How 
about  a  long  distance  telephone  company? 

Mr.  Brooke:  I  think  this  will  appl^'  to  it.  The  long  distance  tel'^phone  companies 
generally  make  their  connections  between  the  cities  by  connection  with  the  local  ex- 
changes. 

Mr.  Carter:  But  if  your  long  distance  telephone  company  wanted  to  go  into  a 
little  village  like  the  village  of  Ashland,  and  the  people  of  Ashland  objected,  that 
would  block  the  whole  scheme.  Would  you  have  any  objection  to  striking  out  the  word 
"telephone"?    The  others  are  purely  local. 

Mr.  Brooke:  I  would  have  a  decided  objection  to  striking  out  the  telephone  com- 
panies just  in  that  language,  but  I  might  not  have  any  objection  to  amending  that  by 
saying  "local  telephone.'" 

Mr.  Carter:    That  would  be  satisfactory  to  me. 

Mr.  Meredith:  There  is  nothing  which  is  more  trouble  to  us  than  the  poles  and 
wires  of  telephone  companies.  They  are  the  most  dangerous  things  we  have  in  the 
cities  in  regard  to  fires,  and  unless  we  have  them  in  the  control  of  local  authorities  it 
is  absolutely  impossible  for  us  to  protect  ourselves  from  that  danger.  We  ought  to 
have  the  authority  to  compel  them  to  put  their  wires  in  conduits  as  soon  as  possible, 
and  all  that  power  ought  to  be*  left  in  the  municipal  authorities.  As  to  the  danger  my 
friend  suggests  of  Ashland  stopping  the  long  distance  telephone,  it  would  not  require 
more  than  half  a  mile  circuit  to  pass  around  the  town. 

Mr.  Carter:  I  do  not  desire  to  say  much  about  it.  I  want  to  vote  for  the  section, 
and  if  it  confines  itself,  as  is  evidently  the  intention  of  the  committee  it  shall  do. 
simply  to  local  matters,  I  will  heartily  support  it;  but  when  you  put  in  the  words 
"telephone  companies."  you  interfere  with  what  is  not  local.  The  long  distance  tele- 
phone is  exactly  the  same  as  the  telegraph.  You  have  not  included  in  this  provision 
telegraph  companies,  and  you  have  left  them  out  for  the  express  reason  that  you  did  not 
want  to  interfere  with  the  power  of  the  State  over  anything  but  local  enterprises. 

Mr.  Meredith:  I  suggest  to  the  gentleman  from  Hanover  that  the  reason  the  word 
"telegraph"  is  left  out  is  that  telegraph  companies  operate  under  a  law  of  Congress 
that  allows  them  to  go  anywhere  along  a  post  road,  and  the  gentlem.an  from  Hanover 
is  familiar  with  the  line  of  authorities  which  hold  that  the  highways  of  a  city  are 
regarded  as  post  roads. 
124 — Const.  Deb. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Braxton:  Would  there  be  any  difficulty  in  a  telephone  company  making  a 
sufficient  deflection  to  go  around  a  village.  I  can  well  understand  the  difficulty  of  a 
railroad  going  around,  because  it  would  be  affected  by  the  contour  of  the  ground;  but 
no  such  difficulty  would  exist  in  the  case  of  a  long  distance  telephone  company.  If 
you  will  permit  me  to  make  the  suggestion,  I  would  take  it  that  unless  the  telephone 
company  wanted  to  do  as  they  frequently  do,  to  defy  the  municipal  authorities  and  do 
something  unreasonable,  there  would  be  no  objection  to  their  coming  in,  and  if  they 
could  not  agree,  it  would  be  no  hardship  on  them  to  go  around,  as  it  would  involve 
simply  the  building  of,  say,  half  a  mile  more  of  wire  line,  which  would  not  be  ex- 
pensive as  would  the  deflection  on  a  railroad. 

Mr.  Carter:  The  difficulty  would  not  be  insuperable,  nor  would  it  be  as  serious 
a  difficultty  as  the  deflection  of  a  railroad;  but  the  purpose  of  the  committee  here  was 
apparently  to  deal  simply  with  purely  local  matters,  and  in  that  I  think  they  are 
right,  and  I  would  like  to  support  them;  but  this  would  be  taking  from  the  Legisla- 
ture the  power  which  heretofore  it  has  always  had  over  the  streets  of  the  city  and 
giving  it  to  the  city  councils.  They  are  taking  from  the  State  its  right  of  eminent 
domain  and  vesting  it  in  the  little  villages  and  cities.  I  am  perfectly  willing  to  go 
with  them  to  that  extent,  if  they  confine  it  to  local  matters  only;  but  when  they  come 
to  interfere  with  matters  in  which  the  State  is  interested,  I  am  opposed  to  the  change. 
I  think  the  State  of  Virginia  and  the  Legislature  ought  to  retain  now  what  they  have  , 
always  had,  their  control  over  the  streets  of  the  city  except  as  to  purely  local  matters. 

Mr.  Braxton:  How  would  you  define  a  long  distance  telephone  company?  Would 
you  call  a  telephone  company  that  extended  its  lines  from  within  a  town  to  some 
point  out  in  the  country  a  long  distance  telephone?  If  not,  how  would  you  distinguish 
between  a  long  distance  telephone  and  a  local  telephone? 

Mr.  Carter:     Wherever  more  than  one  community  in  the  State  is  interested  in 
an  industry,  it  is  not  a  loQal  industry. 

The  Chairman:    The  question  is  on  the  amendment  of  the  gentleman  from  Wash- 
ington (Mr.  Summers),  which  the  Secretary  will  read: 

At  the  end  of  Section  10  add  the  following: 

^'Unless  the  proper  condemnation  proceedings,  to  be  provided  for  by  law." 

Mr.  Carter:  Mr.  Chairman,  my  motion  is  to  insert  before  the  word  "telephone," 
fn  line  3,  the  word  "local,"  so  as  to  make  this  section  apply  only  to  telephones  that 
are  confined  to  the  town,  village  or  city  whose  streets  are  proposed  to  be  occupied. 
This  makes  the  section  correspond  with  itself  and  congruous.  If  you  do  not  do  that, 
you  have  a  provision  here  which  takes  from  the  Legislature  of  Virginia  the  power 
that  it  now  has  over  the  streets  of  the  city  with  reference  to  all  local  matters  and 
with  reference  to  one  matter  alone  which  may  not  be  local.  It  makes  it  incongruous 
and  contradictory.  There  is  no  more  reason  for  singling  out  the  telephone,  which  is 
one  of  the  companies  that  is  not  local,  than  there  would  be  for  singling  out  a  telegraph 
company  in  villages  where  the  streets  are  not  used  for  distributing  the  mail,  and  it 
seems  to  me  that,  as  we  are  changing,  anyway,  the  present  condition  of  affairs  in 
Virginia  which  has  stood  ever  since  it  was  a  State,  and  limiting  the  powers  of  the 
State  and  the  Legislature  over  the  streets  of  the  cities,  we  ought  not  to  go  further 
than  to  limit  it  except  so  far  as  it  applies  to  purely  local  matters.  I  do  not  say  to 
the  Legislature,  ''You  must  allow  these  companies  to  come  through  here  without  the 
consent  of  the  city,"  but  I  leave  it  where  it  now  is,  in  the  discretion  of  the  Legisla- 
ture. They  have  never  abused  that  discretion  in  the  past,  and  there  is  no  reason  to 
suppose  they  will  abuse  it  in  the  future. 

Mr.  Thornton:  Under  your  amendment,  then,  the  Legislature  could  permit  the 
telephone  companies  to  pass  through  the  town  without  the  consent  of  the  town? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


1963 


Mr.  Barbour:  I  would  like  to  ask  you  if  a  bill  on  this  subject  was  not  gotten 
through  the  General  Assembly  at  its  last  session,  and  whether  a  protest  did  not  come 
up  from  every  city  and  town  of  this  State,  so  that  the  Legislature  repealed  the  bill 
so  quickly  it  would  take  your  breath  away? 

Mr.  Carter:  That  may  be,  but  it  never  was  gotten  through.  I  would  say  further, 
that  the  Legislature  has,  in  proper  cases^  the  power  to  take  from  little  cities  and 
villages  their  veto  power  and  keep  them  from  exercising  it  unreasonably,  as  sometimes 
they  might  do. 

I  sa3^,  Mr.  Chairman,  we  are  changing  here  an  important  principle  in  our  State, 
one  that  has  prevailed  ever  since  Virginia  has  been  a  State,  and  we  are  taking  from 
the  Commonwealth  of  Virginia  and  from  its  Legislature  the  power  it  has  always  exer- 
cised, and  are  giving  it  to  some  little  village,  which  may  not  have  two  hundred  in- 
habitants in  it,  which  might  block  a  great  enterprise  in  which  the  whole  State  was 
interested. 

All  I  say  to  you  is  this:  Let  things  stand  as  they  are  with  referouce  to  this  matter, 
and  leave  it  to  the  Legislature  to  decide  in  what  cases  it  is  proper  and  when  it  is  not 
proper  to  leave  that  veto  power  in  these  different  little  villages  throughout  the  State. 

Mr.  Glass:  I  think  that  the  proposition  offered  by  my  friend  from  Hanover  is,  as 
has  been  said,  a  revival  of  the  fight  we  had  before  the  General  Assembly  two  years 
ago  in  which  a  bill  passed  the  State  Senate  incorporating  a  telephone  company  with  a 
capital  of  five  millions  of  dollars,  with  but  few  members  of  that  body  knowing  any- 
thing about  it.  There  were  but  one  or  two  members,  as  I  recall  it  now,  of  the  com- 
mittee which  reported  the  bill  who  were  willing  to  say  they  remembered  having  voted 
to  report  it,  and  there  were  few  members,  as  I  rcall  it,  of  the  same  body  who  were 
willing  to  say  they  remembered  it  having  passed  the  body,  and  yet  it  had  passed  in 
the  way  prescribed  by  law. 

My  friend  from  Hanover  says  here  is  no  difference  between  a  telephone  company 
in  a  town  and  a  telegraph  company,  and  that,  since  railroads  are  given  right  of  en- 
trance to  cities  and  towns  without  local  assent,  so  should  telephone  companies.  There 
is  a  vast  difference  between  a  telephone  company  in  a  town  and  a  telegraph  company. 
A  telegraph  company  in  a  town  has  but  a  single  destination,  and  that  is  its  own  office. 
It  reaches  that  office  usually  hy  rear  streets  or  alleys — highways  or  byways  that  are 
not  given  over  to  traffic  and  upon  which  there  are  a  few  residences.  A  telegraph 
company  could  have  no  desire  to  disfigure  a  town,  and  there  is  no  reason  why  it 
should  disfigure  the  principal  streets.  On  the  contrary,  a  telephone  company  in  a 
town  uses  every  thoroughfare  in  that  town  and  has  lines  running  to  almost  every 
residence  in  the  town.  It  is  necessarily  obliged  to  disfigure  and  obstruct  the  streets, 
unless  it  has  a  subway  system. 

My  friend  has  also  said  that  we  are  proposing  to  take  away  from  the  General 
Assembly  a  power  that  it  has  always  had.  I  turn  to  the  Code  of  1887,  Section  1287, 
and  see  that  the  General  Assembly  has  exercised  that  power  precisely  as  the  commit- 
tee proposes  to  embody  it  here.    The  statute  reads: 

Every  telegraph  and  every  telephone  company  incorporated  by  this  or  any  other 
State,  or  by  the  United  States,  may  construct,  maintain  and  operate  its  line  along  any 
of  the  State  or  county  roads  or  works  and  over  the  waters  of  the  State,  and  along  and 
parallel  to  any  of  the  railroads  of  the  State:  Provided,  tne  ordinary  use  of  such  roads, 
works,  railroads  and  waters  be  not  thereby  obstructed;  and  along  or  over  the  streets  of 
acy  city  or  town,  with  the  consent  of  the  council  thereof. 

We  are  merely  making  permanent  here  a  statute  of  the  State  which  experience 
has  taught  the  General  Assembly  is  a  wholesome  provision;  that  is  all.  It  is  very 
well  to  say  that  the  General  Assembly  may  not  exercise  this  power  differently;  but, 
then,  again,  it  may  exercise  it  differently,  and  it  came  very  near  doing  it  two  years 
ago.    I  have  never,  in  all  my  observation  or  experience,  witnessed  such  a  scene  as 


1964  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA, 

we  had  here  in  the  General  Assembly  two  years  ago  over  tnis  very  proposition.  Some 
of  us  wtie  nearly  pui  inio  our  graves  resisting  the  measuie.  1  do  not  thinK  that  it 
is  any  exiraorainary  departure  tor  this  Convention  to  put  into  the  Constitution  what 
the  General  Assembly  has  made  statute  law  for  over  twenty  years,  and  which  ought 
never  to  De  changed.  I  do  sincerely  hope  that  the  proposition  offered  by  my  friend 
from  Hanover  will  not  prevail. 

Mr.  Tnom:  Mr.  Chairman,  I  think  the  question  presented  by  the  gentleman  from. 
Hanover  (.Mr.  Carter)  is  a  very  much  broader  and  larger  question  than  is  generally 
realized.  The  accepted  law  of  this  State  is  that  the  Commonwealth  of  Virginia  owns, 
the  stieets  of  the  cities  in  the  same  way  that  it  owns  the  highways  of  the  country. 
It  does  not  own  them  in  the  sense  of  doing  inconsequential  things  in  reference  to  them, 
but  it  owns  them  for  the  purpose  of  requiring  them  to  be  utilized  for  the  benefit  of 
the  whole  public  of  the  State;  and  every  citizen  of  the  State,  under  the  law  as  it  now 
stands,  has  the  right  to  use  the  highways  through  the  counties,  the  public  roads  of  the 
counties  and  the  streets  of  the  cities  for  purposes  of  travel  and  all  other  legitimate 
public  purposes.  Public  uses  in  reference  to  highways  are  being  developed  as  the 
instrumentalities  of  commerce  are  changed  and  themselves  develop. 

As  a  citizen  of  the  State  of  Virginia  living,  say,  in  the  county  of  Nansemond,  I 
would  have  the  right,  legitimately,  to  travel  over  all  the  roads  of  the  Commonwealth 
and  all  the  streets  of  the  cities  for  every  legitimate  purpose,  and  not  only  that,  but  I 
would  have  the  moral  right,  which  ought  to  be  protected  and  defended  by  my  State,, 
to  use  those  public  highways  for  every  purpose  of  communication. 

Now,  what  is  the  proposition?  The  proposition  of  the  bill,  as  it  now  stands,  is  that 
every  country  road  of  this  State  shall  be  kept  under  State  control  and  open  to  the  use 
of  the  citizens  of  the  State  for  all  purposes;  but  that  as  to  the  streets  of  the  cities, 
they  shall  be  taken  away  from  the  State  and  shall  be  confided  to  the  cities,  not  only 
for  local,  but  for  general  State  purposes. 

Mr.  Brooke:  Might  I  ask,  does  not  the  gentlemen  recognize  that  there  is  a  differ- 
ence between  the  two  cases  in  the  multitude  of  companies  that  might  desire  to  use 
the  same  streets  in  the  city  as  against  very  few  and  occasional  companies  that  desire 
to  use  the  roads  of  the  counties? 

Mr.  Thom:  I  do  not  recognize  any  difference  in  principle.  And  I  wish  to  elabo- 
rate this  idea  "and  to  invite  the  very  earnest  attention  of  the  committee  to  it,  be- 
cause I  think  it  is  fundamental. 

Now,  I  say  that  living  away  from  the  Capital  of  my  State,  I  have  a  right  to  travel 
on  all  its  highways,  whether  they  be  through  the  country  or  through  the  cities,  tO' 
reach  the  Governor  of  the  State,  to  reach  the  government  of  the  State  and  to  transact 
my  business  with  the  representatives  of  the  State.  Not  only  have  I  a  right  to  come  in 
person,  but  I  have  a  right  to  come  by  way  of  telegraph  or  telephone,  and  do  the  same- 
thing.  Every  citizen  of  the  State  living  in  the  country  has  the  proper  right,  due  to- 
his  citizenship,  of  being  able  to  come  to  the  capital  city  of  his  State,  either  in  person 
or  by  telegraph  or  by  telephone,  to  transact  his  business,  and  the  right  should  not  be 
taken  from  the  State  to  regulate  that  method  of  passage,  and  put  in  the  hands  of 
any  locality.  Suppose,  for  example,  the  long  distance  telephones  wore  to  come  into 
universal  use  in  the  State  of  Virginia,  and  my  friend  there  from  Pulaski  wanted  to 
talk  to  the  Governor  of  his  State,  why  should  the  city  of  Richmond,  as  to  State  high- 
ways in  the  city  of  Richmond,  have  the  right  to  say:  "You  may  talk  to  the  city  limits, 
but  you  shall  not  talk  to  the  Capital  of  the  State?"  Why  is  it  right  to  give  to  the 
city  of  Richmond  the  power  of  prohibition  against  all  the  population  of  the  State  to 
use  any  of  the  instrumentalities  of  commerce  over  its  streets? 

I  take  the  city  of  Richmond  as  an  example.  The  city  of  Norfolk  would  be  another 
example.  Why  should  not  a  merchant  living  in  some  of  the  Southside  counties  in 
Virginia  be  able  to  talk  to  his  correspondent  in  Norfolk  over  the  State's  highways  as 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  YIRGIXIA.  1965 


Vt?ii  as  travel  over  the  State's  highways?  Would  this  Convention  for  one  moment 
entertain  the  proposition  that  the  right  of  the  people  of  the  State  to  travel  over  the 
streets  of  the  city  snould  be  within  the  city's  control?  And  yet  this  proposidon  is  to 
say  that  the  right  to  use  the  streets  of  he  city  in  commercial  ways  snail  not  be  in  the 
oontrol  of  the  State,  but  shall  be  in  the  control  of  the  city.    Is  that  a  sound  principle? 

Mr.  Gregory:  I  would  liiie  to  ask  the  gentleman  if  he  says  that  the  right  to  travel 
over  the  streets  of  cities  and  over  the  highways  of  the  country  stand  upon  the  same 
footing? 

Mr.  Thorn:     Yes^  I  think  so. 

Mr.  Gregory:  Then,  I  ask  him  this:  Is  there  not  a  difference  between  the  lia- 
t)ility  of  the  cities  for  damages  sustained  on  the  streets  and  the  liability  of  counties  for 
<iamages  sustained  by  reason  of  the  condition  of  the  roads? 

Mr.  Thom:  There  is,  and  I  am  coming  to  that  point.  That  merely  relates,  not  to 
the  right  of  prohibition  on  the  part  of  the  city  to  use  the  streets,  but  the  right  of 
police  regulation  as  to  the  method  of  their  use.  In  other  words,  the  city  has  un- 
doubtedly the  right  to  say  whether  the  wires  shall  be  put  under  the  ground  or  on 
poles.  It  has  the  undoubted  right  to  say  whether  they  shall  be  on  this  side  of  the 
street  or  on  that.  It  has  the  right  to  say  which  street  shall  be  utilized  and  which 
shall  not  be  utilized.  And  it  is  not  proposed  by  this  amendment  to  cut  the  city  off 
from  the  right  of  the  police  regulations  and  control  of  its  streets.  In  all  those  matters 
the  city  has  a  liability  as  to  its  streets  which  is  not  put  upon  the  county  as  to  its 
tjounty  roads. 

Mr.  Glass:  It  is  not  proposed  in  so  many  words  to  do  it,  but  under  the  amend- 
ment the  General  Assembly  could  do  it. 

Mr.  Thom:  It  is  not  proposed  in  the  proposition  that  is  now  pending  to  do  other- 
wise than  to  take  away  from  the  Legislature  a  prohibition  on  its  povrer  in  any  respect, 
but  to  leave  the  whole  matter  with  the  Legislature;  and  I  am  willing  to  say,  so  far  as 
I  am  concerned,  though  I  do  not  know  how  the  gentleman  from  Hanover  feels  about 
it,  that  I  would  be  willing  to  accept  an  amendment  proposed  by  the  gentleman  from 
Hoanoke,  specifically  providing  that  the  police  regulation  over  its  streets  shall  be  in 
the  hands  of  the  city  authorities. 

But  I  want  to  call  attention  to  the  inherent  vice  involved  in  this  proposition, 
which  is,  saying  to  the  people  of  this  State,  wherever  they  may  be  situated,  that  any 
one  of  the  cities  may  cut  off  a  commercial  facility  at  the  city  line  and  deprive  the 
citizens  of  the  State  of  the  right  to  use  their  highway's  for  any  commercial  purpose. 

Mr.  Meredith:  You  speak ^ with  much  earnestness  about  protecting  the  interests 
of  the  country  members.  Do  you  not  think  that  they  are  in  far  more  danger  by  allow- 
ing the  power  to  remain  in  the  Legislature  than  by  giving  it  to  the  cities? 

Mr.  Thom:    I  do  not. 

Mr.  Meredith:  Do  you  not  know  that  the  cities  are  frequently  repre!=ented  here 
around  the  Legislature  and  their  interests  are  guarded  by  watching  the  bills  in  the 
Xiegislature.  so  as  to  see  that  their  interests  are  protected? 

Mr.  Thom:  Mr.  Chairman,  I  am  not  one  of  those  gentlemen  who  understand  that 
the  representatives  of  the  people  have  to  be  watched  at  all  times.  I  regard  the 
country  as  represented  here  when  it  has  its  delegates  in  the  General  Assembly,  and 
I  have  never  been  able  to  give  my  consent  to  the  proposition,  as  I  understand  it  en- 
tirely, favored  by  the  gentleman  from  Richmond,  that  the  Legislature  is  not  to  be 
trusted. 

Mr.  :Meredith:  Is  it  not  a  fact  that  I  am  safe  in  saying  there  have  been  twenty 
hills  killed  in  the  Legislature  simply  because  one  of  the  city  attorneys  of  Richmond 
happened  to  be  on  the  ground  to  watch  the  bills?  They  were  bills  that  would  have 
allowed  these  corporations  to  operate  street  railways  and  light  plants  and  telephone 
companies  in  the  town  of  Smith,  say.  and  In  an3'  other  city  or  county  in  the  Com- 


1966  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

monwealth,  but  those  bills  have  been  killed  simply  by  the  fact  that  there  has  been 
somebody  on  the  ground  to  watch  them. 

Mr.  Thorn:  I  quite  agree,  Mr.  Chairman^  that  every  representative  government 
has  difficulties  in  its  v/ay,  but,  to  my  mind,  the  way  to  get  rid  of  those  difficulties  is 
not  the  suggestion  made  by  the  gentleman  from  Richmond,  which  has  run  through^ 
as  I  understand,  his  entire  policy  in  connection  with  this  Convention,  and  that  is,  to 
take  away  from  the  people  of  this  State  the  right  of  contemporaneous  self-government,, 
and  to  bind  the  Legislature  and  make  them  practically  powerless,  and,  more  than 
that,  to  arrogate  to  this  Convention  the  wisdom  to  make  a  code  of  laws  which  are  to 
govern  the  destinies  of  this  people  for  thirty  years  to  come. 

Mr.  Glass:  Have  not  the  people  of  this  Commonwealth,  in  whom  is  now  vested 
this  power,  exercised  it  precisely  as  the  report  of  the  Committee  on  City  Organization 
proposes  to  exercise  it,  and  have  they  not  exercised  it  directly  in  a  different  way  from 
that  in  which  you  say  it  ought  to  be  exercised? 

Mr.  Thorn:  No. 

Mr.  Glass:   There  is  the  statute. 

Mr.  Thom:  You  asked  me  two  questions.  I  have  to  answer  the  two  questions 
differently.  The  last  question  is  to  be  answered  "No,"  that  they  have  not  exercised 
it  directly  contrary  to  the  way  I  say  they  ought  to  exercise  it.  The  answer  to  tha 
first  question  is  "Yes,"  and  that  question  is  have  they  not  put  into  a  statute  that 
which  is  now  proposed  to  be  put  into  the  Constitution. 

Mr.  Chairman,  my  idea  is  that  the  Legislature  will  aways  consider  the  wishes  of 
the  localities;  that  they  may  be  safely  trusted  to  consider  the  wishes  of  the  localities; 
that  the  very  instance  which  has  inspired  the  views  of  my  friend  from  Lynchburg 
on  this  question  is  an  eminent  illustration  of  the  fact  that  they  do  consider  the  viewB. 
of  the  localities,  and  I  believe  those  views  ought  to  be  considered  just  in  so  far  as  the 
interests  of  the  great  public  of  the  State  are  not  involved.  But  take  a  case  where  a 
locality  is  unreasonable;  take  a  case  where  the  city  of  Norfolk  or  the  city  of  Rich- 
mond says,  "We  will  not  allow  this  great  commercial  facility  to  pass  beyond  our 
borders;  we  will  not  permit  it.  No  matter  what  the  rules  and  regulations  are,  no  mat- 
ter what  the  safeguards  are,  this  commerce  must  stop  at  the  city  line."  Ought  not  the 
power  to  be  in  the  Legislature,  to  be  exercised  in  behalf  of  all  the  people  of  this  Com- 
monwealth, to  overrule  that  unreasonable  prohibition,  or  ought  the  absolutely  arbitrary 
power  to  be  put  in  the  hands  of  a  locality  to  stop  the  wheels  of  commerce  at  the  city 
line.    Now,  that  is  the  question. 

Mr.  Green:  I  would  like  to  know  if,  under  any  conceivable  circumstances,  any 
commercial  community  in  this  Commonwealth  would  deem  it  advantageous  to  cut 
itself  off  from  communication  with  other  communities. 

Mr.  Thom:  I  think  entirely  so,  Mr.  Chairman.  I  think  it  might  very  readily  be 
so,  and  while  I  do  not  want  to  introduce  here  a  debatable  question,  while  I  do  not 
want  to  go  into  a  local  matter,  I  regard  that  very  thing  as  having  happened  in  the 
State  of  Virginia.  I  have  always  considered  it  my  right,  living  in  the  city  of  Norfolk, 
to  communicate  with  any  part  of  the  city  of  Richmond  over  its  streets,  under  proper 
rules  and  regulations.  I  have  always  considered  it  my  right,  as  a  citizen  of  this  State, 
and  a  proper  commercial  facility,  that,  without  running  all  over  tbis  town,  I  should 
be  allowed  to  talk  to  New  York  or  to  Norfolk  or  to  any  other  place.  And,  yet,  the 
spectacle  is  now  presented  of  the  city  of  Richmond  having  the  poorest  telephone  com- 
munication with  the  outside  world  of  any  city  in  the  State  of  Virginia. 

Mr.  Meredith:  Does  the  gentleman  mean  to  contend  that  the  city  of  Richmond 
was  not  justified  in  making  that  fight  against  the  telephone  companj^,  simply  attempt- 
ing to  control  the  rate  which  their  citizens  should  be  charged? 

Mr.  Thom:  I  mean  to  say  that  I  do  not  care  to  go  into  that  question  of  criticising 
the  fight  one  way  or  the  other.    I  am  speaking  from  the  standpoini:  of  a  citizen  of 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVE^'TIOX  OF  VIRGIXIA. 


1967 


the  state  and  I  am  speaking  of  the  facilities  of  the  city  of  Richmond.  1  use  that 
merely  to  answer  the  question  as  to  whetner^  under  some  conceivaDle  conditions  of 
local  passion  and  local  rights  or  of  v^hatever  it  might  be,  a  city  will  consent  to  cut 
itself  off  from  commercial  facilities.  Now,  there  is  a  case  in  point.  I  take  no  part 
in  the  fight  of  the  city  of  Richmond.  I  characterize  it  in  no  way,  but  there  is  a  case 
in  which  the  leading  community  of  the  State,  for  reasons  satisfactory  to  itself,  has 
cut  off  its  citizens  from  local  facilities.  That  fight  may  have  been  a  correct  and 
righteous  one.  It  may  have  been  founded  upon  considerations  local  to  Richmond  and 
which  could  not  appeal  to  the  State  at  large.  It  may  have  been,  on  the  other  hand, 
an  unrighteous  fight  and  might  have  sprung  from  local  passion  and  local  conditions. 
Whatever  may  be  the  fact  about  that,  the  result  was  to  cut  off  the  city  of  Richmond 
from  one  of  the  great  commercial  facilities  of  the  age,  and  I  can  readily  conceive 
that  those  conditions  might  be  followed,  and  that  the  conditions  of  local  policy,  of 
local  trade,  of  local  passion,  might  so  far  shut  up  streets  of  the  city,  if  the  city  had 
the  complete  control  of  that  question,  as  to  deprive  the  people  of  the  State  of  their 
inherent  right  to  every  commercial  facility  over  those  streets. 

As  I  say,  I  want  to  be  understood  again  as  not  in  any  way  characterizing  or  en- 
tering into  that  fight  in  the  city  of  Richmond.  I  know  it  is  a  matter  upon  which 
the  prejudice  of  this  Convention  will  be  invoked  to  put  this  clause  into  the  Constitu- 
tion. I  know  that  every  effort  will  be  made  here  to  use  that  as  a  reason  for  putting 
this  clause  into  the  Constitution.  But,  gentlemen,  we  are  not  here  legislating  for  a 
moment.  We  are  here  making  a  Constitution  for  the  State.  We  find  in  that  instance 
that  if  the  city  of  Richmond  was  right,  it  went  to  the  Legislature  and  won  its  fight. 
We  find  that  the  Legislature  did,  in  that  particular  case,  respect  that  principle  of  self- 
government.  Why  should  not  that  be  a  guarantee  that  wherever  the  fight  is  not  a 
righteous  one  that  the  same  tribunal  that  protected  the  rights  or  views  of  the  city 
of  Richmond  in  that  case  will  protect  the  rights  and  views  in  every  proper  way 
hereafter. 

Mr.  Meredith:     You  speak  of  the  fight  as  being  that  of  the  city  of  Richmond. 

Are  you  not  aware  of  the  fact  that  it  happened  to  start  here  in  the  legislative  hal}. 
and  of  course  Richmond  heard  of  it  first,  and  when  she  started  to  fight  the  cry  came 
up  from  all  over  the  State,  from  every  city  and  from  every  county,  that  the  bill  should 
not  be  passed? 

Mr.  Thorn:  I  do  not  see  what  that  has  to  do  with  my  argument.  I  say  that  it 
was  the  f.ght  of  Richmond  because  I  consider  that  Richmond  started  it.  and  then 
the  other  cities  were  made  to  take  that  position  afterwards;  but  it  commenced  here 
in  Richmond. 

Mr  Avers:  I  would  like  to  suggest  to  the  gentleman  from  Norfolk  that  they 
won  the  fi2:ht  upon  the  question  they  were  contending  for  here,  and  rne  General  Assem- 
bly gave  the  telephone  companies  the  right  to  come  into  the  cities  without  the  consent 
of  the  councils,  on  certain  conditions:  but  it  was  the  attempt  to  put  a  prohibitive  rate 
of  thirty-five  dollars  for  a  'phone  upon  them  that  made  the  company  abandon  the  bill. 

Mr.  Thom:  I  do  not  know  what  the  reasons  were,  nor  do  I  care  to  enter  into  that 
question.  That  has  nothing  to  do  with  it.  so  far  as  I  can  see.  The  question  is  a 
larger  and  a  greater  one.  The  question  is  whether  or  not  in  the  matter  of  commer- 
cial facilities,  which,  in  justice  and  right,  should  be  open  throughout  all  the  State's 
highways  to  all  its  people,  you  will,  as  to  part  of  those  highways,  bv  your  Constitu- 
tion. ta>e  them  from  the  State  and  give  them  to  the  localities  and  cities.  The  question 
is  whether  you  will  leave  the  right  to  prescribe  how  far  the  people  of  this  State  may 
use  their  own  highways  to  the  Legislature  of  the  State  or  to  the  councils  of  the 
cities. 

Now.  thPt  is  the  pronosition.  Who  should  control  the  highwnvc;  of  t>^A  State,  the 
councils  of  the  cities  or  the  Legislature  of  the  State?    Why  is  it  tha^  you  leave  to  your 


1968 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Legislature  the  right  to  control  the  county  roads  and  do  not  give  it  to  your  boards  of 
supervisors.  Why  is  it  that  you  will  not  permit  local  authorities  to  prevent  great 
public  works?  It  is  a  common  principle  that  a  State  must  determine  State  ques- 
tions; and  now  the  suggestion  is  to  take  from  the  State  the  right  to  determine  this 
great  State  question  which  affects  me  in  the  city  of  Norfolk,  you  gentlemen  in  the 
city  of  Richmond,  you  gentlemen  in  the  county  of  Lancaster,  and  all  the  people  of 
the  State,  and  to  say  that  the  city  council  of  the  city  of  Richmond  and  the  city 
council  of  the  city  of  Norfolk  shall  determine  not  how  you  shall  use  the  streets,  but 
whether  you  shall  use  them  at  all.  Are  you  going  to  commit  yourself  to  that  propo- 
sition? There  is  no  suggestion  that  the  method  of  use  shall  be  taken  from  the  city. 
The  question  is  whether  you  are  going  to  give  the  cities  this  right  of  prohibition  of 
use.  I  ask  you,  gentlemen,  to  consider  it  upon  broad  principles,  consider  what  you 
are  asked  to  do,  and  before  you  take  away  from  your  State  the  right  to  use  and  con- 
trol its  highways  everywhere,  pause  and  think. 

Mr.  Meredith:  Mr.  Chairman,  I  desire  to  call  attention  to  the  fact  that  it  seems 
to  me  the  possible  evil  has  been  very  greatly  magnified.  Wherein  is  it  contemplated 
that  the  Legislature  shall  surrender  its  power  over  the  streets,  so  far  as  power  is 
necessary  to  be  retained?  From  the  argument  made  by  the  gentleman  from  Norfolk 
(Mr.  Thom)  one  would  imagine  that  the  power  was  given  to  the  city  to  say  that  the 
gentleman  from  Nansemond,  or  the  gentleman  from  Pulaski,  should  not  walk  the 
streets  of  the  city  of  Richmond.  As  if  there  were  some  power  to  be  given  into  the 
hands  of  the  municipality  to  enable  it  to  prevent  these  gentlemen  who  live  elsewhere 
from  coming  and  using  the  streets  of  the  city  of  Richmond.  Is  that  true?  Is  not  the 
true  issue  as  to  whether  the  municipalities  are  to  have  the  control  of  their  streets,  or 
whether  these  corporations  shall  be  able  to  get  through,  by  hurried  legislation,  au- 
thority to  use  the  streets  of  the  cities  and  the  towns  of  the  Commonwealth  to  their 
detriment? 

It  is  not  a  fight  between  the  people  of  the  country  and  the  people  of  the  cities,  as 
the  gentleman  from  Norfolk  (Mr.  Thom)  undertakes  to  make  it,  but  simply  a  question 
as  to  whether  the  people  of  the  city  or  the  corporations,  which  desire  to  occupy  the 
streets,  shall  control  them.  That  is  the  fight;  and  let  us  recognize  it,  no  matter  how 
ingenious  may  be  the  argument  made  by  the  gentleman  from  Norfolk.  It  is  not  the 
cry  of  the  people  against  the  cities,  but  it  is  the  fight  as  to  whether  these  corporations 
that  the  gentleman  is  advocating  shall  have  the  right  to  go  to  the  Legislature  and 
ask  for  a. charter  to  go  into  the  city  of  Lynchburg  or  the  city  of  Bristol  or  the  city  of 
Roanoke,  or  a  city  at  some  distant  point,  and  before  the  people  of  Roanoke  or  Bristol 
or  Lynchburg  ever  hear  of  it  the  burden  is  put  upon  them.  That  is  the  proposition 
you  must  meet,  and  not  the  proposition  to  refuse  to  allow  a  citizen  to  use  the  streets. 
It  is  a  fight  as  to  whether  these  corporations  shall  be  permitted  to  go  before  the 
Legislature  and  get  the  right  to  use  the  streets,  and  not  a  fight  as  to  the  rights  of  the 
people.    Let  us  recognize  the  fight  at  once  as  what  it  is. 

Mr.  Chairman,  the  city  of  Richmond  has  no  special  interest  in  this  matter.  This 
is  the  capital,  and  here  all  this  legislation  takes  place.  Our  local  officers  watch  bills 
of  this  character  that  are  introduced,  and  time  and  time  again  they  liave  gone  before 
the  Legislature  and  defeated  bills  which  would  have  affected  every  city  in  the  Com- 
monwealth for  the  running  of  electric  railw^ays.  electric  plants,  etc.  Suppose  a  bill 
is  introduced  to  create  a  corporation  with  power  to  build  a  street  railroad  and  operate 
an  electric  plant  in  the  town  of  Smith  or  any  other  city  in  the  Commonwealth.  Where 
is  the  protection  to  our  cities?  Such  bills  have  been  stopped  on  the  eve  of  their 
passage  by  the  law  officers  of  the  city  of  Richmond  simply  because  they  hapnened  to 
be  here.  But  T\^hat  protection  have  you  gentlemen  who  do  not  live  here?  What  pro- 
teetlori  have  you  for  the  little  towns  or  cities  in  your  counties,  unleps  you  make  pro- 
vision in  this  section  that  we  shall  have  some  authority  in  regard  to  it'' 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


1969 


What  is  the  evil?  The  evil  is  that  they  say  these  municipal  corporations  will  block 
commerce.  Upon  what  do  such  corporations  live,  if  not  upon  commerce?  They 
say  these  men,  whose  life  blood  is  commerce,  will  destroy  the  very  thing  upon  which 
they  live.  You  know"  that  is  not  reasonable  to  expect;  but  you  have  the  right  to  expect 
that  these  men,  who  know  the  dangers  in  regard  to  the  corporations,  will  put  such 
reasonable  restrictions  upon  them,  that  they  may  be  properly  managed.  That  is  all 
a  municipality  ever  undertakes  to  do.  You  know  it  is  not  probable  that  a  municipality 
is  going  to  be  obstinate,  and  simply  say  they  shall  not  come  in.  It  w^ill  propose  to 
reasonable  restrictions  upon  them  as  are  probable  and  possible  and  proper. 

Mr.  OTlaherty:  I  wish  to  say  I  signed  the  report  of  the  committee,  but  this 
part  of  it.  I  am  perfectly  willing  to  say,  has  given  me  a  great  deal  of  difficulty  from 
the  very  beginning,  as  to  whether  or  not  this  prohibition  should  be  permitted.  I 
should  like  to  ask  the  gentleman  if  he  is  willing  to  leave  the  language  as  it  is,  and 
put  some  provision  in  here  to  show  that  this  shall  go  just  as  far  as  the  police  power 
is  concerned? 

Mr.  Meredith:    No,  sir. 

Mr.  O'Flaherty:  As  a  member  of  the  committee,  I  want  to  get  at  the  correct 
idea,  and  whether  by  permitting  a  city  to  prevent  some  company  from  coming  into  the 
city  we  have  transferred  the  right  of  eminent  domain  from  the  State  to  the  city  or 
town. 

Mr.  Meredith:  You  have  not  surrendered  any  powder  over  your  streets,  except 
to  say  that  certain  corporations  shall  not  come  upon  them  without  the  consent  of  the 
cities.  You  have  the  same  power  you  ever  had  over  the  charter  and  as  to  the  abol- 
ishing of  highways.  They  all  belong  to  the  State,  and  you  have  just  as  much  right 
over  them,  except  to  say  that  these  corporations  shall  not  come  there  and  occupy 
them,  when  the  people  of  the  municipality  are  at  the  expense  of  maintaining  them, 
without  some  reasonable  restrictions. 

Mr.  O'Flaherty:  I  do  not  object  to  the  power  of  the  Legislature  over  that.  We 
all  agree  about  that.  The  question  is  whether  we  ought  to  give  to  the  municipality 
the  absolute  power  to  prevent  a  corporation,  a  telephone  corporation  or  a  corporation 
of  some  other  character,  to  come  into  the  city.  The  municipality  might  raise  them 
without  rhyme  or  reason. 

Mr.  Meredith:  That  is  possible.  That  bugbear  has  been  held  up  here  to  us 
several  times,  but  is  it  as  probable  that  a  municipal  community  will  block  commerce 
as'  it  is  that  a  corporation  will  go  to  the  I^egislature  and  try  to  get  a  charter  that 
wall  be  injurious  to  that  municipal  community?  That  is  the  issue.  Is  it  as  probable 
that  a  city  which  lives  upon  commerce  will  block  commerce,  as  it  is  that  a  money- 
making  corporation  will  try  to  get  the  very  best  terms  from  the  Legislature,  w^hen  the 
municipality  has  nothing  to  say  about  it.  Let  us  decide  which  is  the  more  reasonable 
to  expect.  I  respectfully  submit  that,  recognizing  the  intelligence  of  these  munici- 
palities, we  ought  to  expect  that  they  will  act  with  some  degree  of  intelligence  and 
business  discretion.  The  simple  question,  then,  is  as  to  whether  we  can  exnect  that 
these  people,  who  are  simply  desirous  of  making  money — I  am  not  censuring  them 
for  it.  but  their  whole  object  in  life  is  to  make  money — will  hesitate  to  get  the  very 
best  terms  they  can  from  the  Legislature,  regardless  of  the  interests  of  the  cities  and 
tovvns. 

If  that  is  the  state  of  facts,  I  submit  that,  while  there  may  be  some  dnno:er  upon 
both  si'^es,  yet  the  danger  on  the  side  of  the  cities  and  towns  acting  imi:)roperly  is  so 
much  less  than  that  of  a  private  corporation  acting  unwisely  and  unjustly,  and  some- 
times tvrnnpically.  tliat  we  ought  to  make  provision  to  protect  this  power. 

Mr.  Avers:  Mr.  Chairman.  I  fnllv  concur  in  the  amendment  offered  to  f^is  section. 
I  believe  vo  o\fv  should  have  the  ah^jolnte  ri2:ht  to  sav  that  a  telephone  coTur>Fmv  or  a 
tele.a:ranh  company,  if  you  put  it  that  way.  shall  have  the  power  of  ab-^olute  pro- 
hibition as  to  entry  into  that  city. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


About  two  years  ago  we  had  a  fight  in  this  city  for  the  long  distance  telephone 
company.  To  get  into  Virginia  it  was  necessary  that  it  should  get  into  the  capital 
city  of  Richmond  and  other  cities  of  the  State.  It  was  met  at  the  threshold  of  its 
entry  into  this  city  by  an  absolute  refusal  of  the  council.  It  is  true  a  branch  of  that 
company  was  in  litigation  and  contention  with  the  city,  and  that  entered  more  or 
less  into  the  fight;  but  we  all  know  that  the  long  distance  telephone  company  made  the 
proposition  to  deposit  $100,000  of  Virginia  bonds  in  the  city  treasury  as  a  guarantee 
that  it  should  within  three  years  have  long  distance  connection  with  every  magis- 
terial district  in  every  county  in  the  State. 

It  could  not  do  that  unless  it  could  get  into  these  cities  with  its  connections  upon 
some  reasonable  terms. 

As  the  section  stands  any  city  may  absolutely  prohibit  upon  any  terms  the  entry 
of  one  of  these  long  distance  telephone  companies  into  the  city.  There  have  been 
sufficient  safeguards  thrown  around  it  by  provisions  which  have  been  incorporated  in 
the  Constitution  already,  which  give  the  parties  whose  properties  are  affected  by  it 
compensation  for  damages,  and  also  for  damages  that  result,  although  no  property  is 
taken.  The  city  is  safe  in  the  hands  of  the  General  Assembly,  which  will,  if  the 
matter  is  called  to  its  attention,  put  such  safeguards  around  the  entry  of  any  of  these 
companies  into  the  city  as  will  protect  their  municipal  interests. 

There  is  too  much  paternalism,  too  much  of  protecting  the  cities  against  them- 
selves, in  this  provision.  The  General  Assembly  is  certainly  wise  enough  to  throw 
around  the  entry  of  any  of  these  companies  into  the  cities  special  safeguards  which, 
taken  in  connection  with  their  police  powers,  will  enable  the  State  and  the  munici- 
pality to  prevent  unjust  exercise  of  corporate  power. 

I  do  hope  the  amendment  will  be  adopted,  and  that  if  another  such  proposition 
is  made  it  will  be  accepted  by  the  General  Assembly,  and  will  not  be  defeated.  It  was 
defeated  indirectly,  but  nevertheless  as  affectually  defeated  as  if  the  General  Assem- 
bly had  refused  to  permit  this  company  to  enter  the  cities.  They  permitted  the  com- 
panies to  enter  the  cities  after  a  very  stiff  fight  under  certain  rules  and  regulations 
which  certainly  protected  the  cities;  but  the  fight  was  renewed  indirectly,  and  a  maxi- 
mum tariff  of  thirty-five  dollars  per  telephone  was  imposed,  for  which  no  company 
could  maintain  and  give  a  successful  service  in  a  city,  as  is  shown  by  the  fact  that 
since  that  time  this  very  city  has  permitted  a  branch  of  that  same  company  to  con- 
tinue to  occupy  its  streets,  and  is  to-day  engaged  in  putting  its  lines  in  subways,  with 
the  right  to  charge  more  than  the  maximum  fixed  by  the  General  Assembly. 

I  think  in  the  interest  of  all  the  people  of  the  State  this  amendn  ent  ought  to  be 
adopted,  and  the  discretion  ought  to  be  left  where  it  properly  belongs,  with  the  Gen- 
eral Assembly. 

Mr.  Glass:  Do  you  not  know  it  to  be  a  fact  that  the  company  refused  to  agi-^e 
for  the  General  Assembly  to  name  a  maximum  rate,  and  that  the  maximum  rate  named 
by  the  General  Assembly  was  the  highest  rate  charged  by  the  company  in  any  city, 
town  or  county  in  the  State? 

Mr.  Ayers:  I  cannot  answer  as  to  its  being  the  highest  rate  charged  by  the  com- 
pany in  any  city,  town  or  county  in  the  State.  I  know  the  matter  was  very  fully  dis- 
cussed by  the  president  of  the  company,  who  showed  that  it  would  be  impossible  in  a 
city  the  size  of  Richmond  for  the  company  to  give  its  full  service  for  $35  a  year,  and 
he  went  on  to  say  they  could  give  a  classified  service,  with  not  a  full  connection,  but 
it  was  impossible  to  give  the  full  service.  I  think  the  gentleman  is  correct,  that  the 
company  refused  to  be  limited  in  the  matter  of  its  charges. 

Mr.  Glass:  In  other  words,  the  company  did  net  want  any  limitations  put  upon  it 
as  to  its  entrance  in  the  cities,  and  did  not  want  any  limitations  put  upon  its  right  to 
charge  whatever  it  pleased  in  the  cities. 

Mr    Ayres:      On    the    contrary,  there  was  a  very  servere  limitation  proposed 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA.  19 Tl 

as  to  its  entrance  in  tlie  cities^  -^-hicli  was  considered  onerous,  but  tliat  would  have 
been  borne,  and  tbe  company  would  have  come  in,  but  for  the  limitation  as  to  tariff. 

Mr.  Hunion:  Mr.  Chairman,  I  desire  to  say,  in  reply  to  a  statement  of  my  friend 
from  Lynchburg  (Mr.  Glass),  that  I  think  he  is  in  error  as  to  one  statement  he  made. 
My  recollection  of  that  bill  was  that  it  provided  that  the  company  should  enter  no 
city  of  the  Commonwealth  without  the  terms  being  agreed  upon  between  the  com- 
pany and  the  city,  and  in  the  failure  of  the  company  and  the  city  to  agree,  the  court 
of  the  corporation  had  the  power  and  the  right  to  fix  the  terms,  and  that  provision 
was  accepted  by  the  company.  Unless  my  memory  greatly  fails  me,  I  am  sure  those 
are  the  facts. 

Mr.  Glass:  My  recollection  is  that  the  bill  as  it  originally  passed  the  Senate  con- 
tained no  effective  restrictions  upon  the  company.  J  want  to  say  just  here,  before  it 
escapes  me,  as  explanatory  of  the  brief  remarks  I  first  made  upon  this  question,  that  • 
I  did  not  mean  to  imply  that  the  telephone  charter  of  two  years  ago  had  passed  the 
Senate  in  an  irregular  or  improper  way.  What  I  purposed  to  indicate  by  the  state- 
ment that  few  members  knew  the  scope  of  the  bill  w^as  the  fact  that  it  is  easy  to  get 
a  matter,  even  of  that  magnitude,  through  the  General  Assembly  without  notice  to  the 
parties  chiefly  affected  and  without  the  members  themselves  knowing  what  they  are 
voting  for.  The  bill  passed  through  without  full  knowledge  of  the  members  of  the 
Senate  as  to  its  provisions,  just  as  I  have  stated,  but  in  no  improper  way. 

Now  as  to  the  facts:  The  bill,  as  originally  passed,  had  none  of  the  safeguards 
that  were  subsequently  inserted.  It  was  only  after  the  purposes  of  the  bill  had  been 
discovered  and  the  magnitude  of  the  whole  thing  exploited  that  those  of  us  who  were 
opposed  to  the  bill  had  inserted  these  exactions  and  restrictions.  It  is  true  the  com- 
pany came  forward  and  accepted  them;  but  as  the  bill  originally  passed  it  embodied 
no  efficient  restrictions. 

Mr.  Chairman,  I  would  have  it  distinctly  understood  that  I  am  in  no  sense  or 
degree  inimical  to  any  telephone  company.  We  have  two  in  Lynchbui^,  and  I  would 
do  nothing  to  retard,  but  everything  that  I  reasonably  may  to  help  them.  I  think  it 
would  be  exceedingly  unfortunate,  indeed  a  grievous  blunder,  for  the  authorities  of 
any  municipality  to  make  hard  or  unfair  exactions  in  dealing  with  telephone  or 
other  commercial  enterprises.  Cities  would  better  concede  much  than  deprive  them- 
selves of  the  advantages  supplied  by  such  companies.  At  the  same  time  I  cannot 
bring  myself  to  believe  that  cities  ought  to  be  denied  the  right  to  arrange  the  terms 
upon  which  such  corporations  shall  enter  their  precincts,  occupy  their  public  streets 
and  transact  business  with  their  citizens. 

Mr.  Thorn:  Mr.  Chairman,  I  will  offer  this  further  amendment  and  ask  the  gen- 
tleman from  Hanover  (Mr,  Carter)  to  accept  it.  It  is  to  go  at  the  end  of  the  para- 
graph: 

Nothing  contained  in  this  article  shall  be  construed  to  deprive  the  cities  or  to^^Tis 
of  the  power  of  reasonable  regulation  and  control  of  the  manner  of  use  of  the  streets 
and  highways  in  the  same. 

Mr.  Barbour:  Mr.  Chairman,  I  hope  these  amendments  will  be  voted  down.  The 
amendment  offered  by  the  gentleman  from  Norfolk  (Mr.  Thorn)  amounts  to  absolutely 
nothing.  We  are  undertaking  to  grant  certain  rights  to  the  cities  in  this  provision, 
and  he  adds  onto  it  a  proviso  that  nothing  herein  contained  shall  be  construed  as  de- 
priving cities  of  certain  rights  which  they  have  not. 

Mr.  Thorn:  I  quite  agi'ee  wit  the  gentleman's  proposition  that  the  amendment 
I  have  asked  to  be  added  adds  nothing  in  law  to  the  effect  of  the  clause  as  previously 
drawn,  but  there  exists  in  the  minds  of  some  gentlemen,  in  the  Convention,  an  idea 
that  such  a  safeguard  as  that  is  necessary,  and  in  order  to  make  it  entirely  clear  I 
have  suggested  that  amendment     The  Committee  on  Revision,  when  they  come  to 


IJEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


consider  the  matter,  can  consider  whether  that  language  is  necessary.  I  agree  with 
the  gentleman  that  it  is  not  necessary;  that  it  is  involved  in  it  already. 

Mr.  Barbour:  Mr.  Chairman,  I  hope  the  members  of  the  committee  will  not  be 
misled  by  the  very  ingenious  arguments  made  here  in  support  of  this  amendment. 
The  provision  reported  by  the  committee  is  nothing  more  than  what  is  right  and 
just  to  the  cities,  and  to  the  towns  of  the  State  as  well  as  the  cities.  There  is  no 
injustice  in  it  attempted  to  be  inflicted  upon  the  counties  as  such.  This  right  of  the 
cities  to  control  these  public  utilities  is  a  very  important  right  to  the  cities,  and  one 
which  should  be  maintained  to  them.  Now,  what  will  be  the  effect  of  this  proposition 
if  you  add  the  word  "local"  before  "telephone"?  You  might  as  well  strike  out  the 
word  "telephone"  then.  All  that  a  telephone  company  would  have  to  do  to  get  around 
the  construction  as  put  upon  it  by  the  gentleman  from  Hanover  would  be  for  them 
to  run  their  line  out  a  half  mile  into  the  county  of  Henrico,  and  then  this  provision 
would  absolutely  amount  to  nothing.  He  says  this  should  only  apply  to  telephone 
lines  running  entirely  within  the  limits  of  the  city.  I  say  it  is  right  and  just  and 
proper,  in  order  that  the  city  may  maintain  its  own  dignity,  and  may  have  the  liberty 
and  the  right  of  contract,  that  they  should  have  the  right  to  say  to  these  telephone 
companies,  "You  shall  not  come  in  here  unless  you  come  in  on  my  terms."  There  is 
absolutely  no  danger  of  any  city  in  the  Commonwealth  attempting  arbitrarily  to  cut 
itself  off  from  communication  with  the  balance  of  the  Commonwealth.  You  may  rely 
upon  it  that  whenever  a  city  does  prohibit  any  of  these  companies  from  coming  into 
it,  it  has  a  good  reason  for  it,  because  they  will  not  deprive  themselves  of  a  great  benefit 
of  this  kind  unless  there  is  sound  reason  at  the  back  of  it.  It  is  a  matter  that  properly 
belongs  to  each  locality  itself. 

Mr.  R.  Walton  Moore:  You  are  a  member  of  the  committee.  May  I  ask  why  the 
committee  limited  the  provision,  so  far  as  the  railway  companies  are  concerned,  to 
street  railways,  and  did  not  extend  it  to  other  railroad  companies? 

Mr.  Barbour:  Because  we  did  not  want  to  deprive  the  State  of  its  right  to  run 
a  railroad  from  one  point  in  the  State  to  another. 

Mr.  R.  Walton  Moore:  I  will  ask  my  friend  if  that  is  not  a  recognition  of  the 
principle  for  which  the  gentleman  from  Hanover  (Mr.  Carter)  is  contending? 

Mr.  Barbour:  No,  sir.  It  is  for  the  reason  v/hich  has  been  brought  out  by  the 
gentleman  from  Augusta  (Mr.  Braxton),  and  for  the  additional  reason  which  was 
brought  out  by  the  gentleman  from  Lynchburg  (Mr.  Glass),  that  to  make  a  railroad 
company  go  around  an  entire  city  would  work  a  great  hardship  on  it.  That  was  the 
reason  assigned  by  the  gentleman  from  Augusta.  The  reason  assign'^d  by  the  gentle- 
man from  Lynchburg  was  that  a  telephone  company  uses  every  street  and  alley  in  a 
city  to  render  service,  whereas  a  railroad  company  only  has  one  route  through  a  city. 

Mr.  R.  V/alton  Moore:  I  submit  to  my  friend  that  cities  have  been  very  much 
more  injured  by  the  use  of  the  streets  by  steam  railroad  companies  than  by  telephone 
companies. 

Mr.  Barbour:    Yes,  sir. 

Mr.  R.  Walton  Moore:  And  the  committee  seems  to  have  taken  this  as  a  funda- 
mental distinction,  that  it  will  tie  the  hands  of  the  Legislature  so  far  as  merely  local 
improvements  are  concerned.  It  reserves  to  the  Legislature  its  power  so  far  as 
State  improvements  are  concerned.  A  long  distance  telephone  company,  or  a  general 
telephone  company,  involves  the  State  development,  and  involves  a  provision  of  State 
facilities.  Is  not"  the  contention  of  the  gentleman  from  Hanover  well  founded  that 
you  should  limit  this  section  by  making  it  apply  to  local  telephone  'Companies? 

Mr.  Barham:  I  think  not,  sir.  The  street  railways  is  not  confined  to  operating 
strictly  within  the  limits  of  the  city.  It  may  run  its  lines  out  into  the  country  beyond 
the  city  limits,  but  still  if  it  is  in  ts  nature  a  street  railway,  a  strictly  local  concern, 
then  it  comes  within  the  limitation  here.  Now,  I  will  be  glad  to  have  the  gentleman 
propose  his  next  question. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


1973 


Mr.  R.  Walton  Moore:  I  was  about  to  ask  my  friend  from  Ciilpeper  if  lie  does 
not  think  this  would  be  a  fair  disposition  of  the  matter — and  I  wish  to  say  to  him 
that  I  have  no  interest  in  the  world  in  it  except  to  fairly  dispose  of  the  service  vi^ithout 
working  any  injustice  in  any  respect.  Would  not  the  matter  be  better  disposed  of 
by  adopting  the  amendment  of  the  gentleman  from  Hanover^  and  then  adding  this  at 
the  end  of  the  section:  "And  as  to  a  telephone  company,  not  local,  the  corporate  au- 
thorities shall  not  be  deprived  of  the  power  to  control  and  regulate  the  use  of  streets 
of  the  corporation  by  such  company  or  of  the  power  to  fix  a  minimum  rate  for  the 
use  thereof."  I  understand  that  meets  with  the  approval  of  my  friend  from  Lynch- 
burg (Mr.  Glass). 

Mr.  Meredith:  I  would  suggest  that  it  should  be  such  language  as  to  prevent  the 
long  distance  telephone  companies  from  being  included  in  local  service.  They  do  not 
confine  themselves,  like  a  telegraph  company,  to  coming  into  a  city,  but  when  they 
get  there  they  spread  their  nets  all  over  it,  just  like  a  local  telephone  company. 

Mr.  Ingram:    Mr.  Chairman,  I  desire  to  state  to  the  committee,  with  permission 
of  the  gentleman  from  Culpeper  (Mr.  Barbour),  I  hope  this  committee  will  adhere  to 
the  provisions  of  its  report,  as  reported  unanimously  by  the  Committee  on  Cities  and 
Towns.    I  take  emphatic  issue  with  the  gentleman  from  Norfolk,  with  the  profoundest 
respect  for  his  legal  ability  and  his  acumen  of  thought  and  mind,  when  he  attempts  to 
state  to  this  honorable  body  that  there  is  no  difference  in  principle  between  the  rights 
of  a  municipal  corporation  or  a  town  over  its  streets,  and  the  rights  of  a  county  gov- 
ernment over  the  county  roads.    As  a  matter  of  fact,  the  roads  are  open  to  the  public 
to  walk  over  -and  drive  over,  and  they  may  go  from  county  to  county.    That  is  also 
true  of  a  city,  so  far  as  the  streets  are  concerned.    To  that  extent  the  gentleman  from 
Norfolk  is  correct,  but  to  that  extent  only.    As  was  very  pertinently  asked  the  gen- 
tleman by  the  distinguished  representative  from  King  William    (Mr.   Gregory),  he 
knows,  and  you  know,  that  the  liability  is  upon  these  municipalities  for  the  condition 
of  their  streets  to  have  their  treasuries  mulcted  by  suits  for  damages  because  their 
streets  are  taken  up  in  such  a  way  as  to  endanger  the  life  of  the  traveling  public,  the 
liability  that  they  shall  keep  those  streets  in  good  repair.    This  burden,  which  they 
have  accepted  as  a  part  or  a  subordinate  branch  of  the  government  of  the  State,  does 
not  rest  upon  the  counties  of  the  Commonwealth.    The  cities  of  the  Commonwealth, 
for  all  time,  have  been  held  to  exercise  the  right  of  control  over  their  streets  and 
allej^s.    This  is  a  very  important,  right  to  the  cities  of  the  Commonwealth,  and  it  is 
one  that  the  cities  will  exercise,  not  onh^  for  their  own  benefit,  and  for  the  benefit 
of  the  citizens  wl^o  live  therein,  but  they  can  be  safely  counted  upon  to  exercise  it 
for  the  benefit  of  all  the  people  of  the  Commonwealth,  and  there  is  no  danger  that  by 
leaving  this  local  self-government  in  the  cities  that  the  rights  of  the  public  will  be  in 
the  slightest  degree  affected. 

I  had  the  pleasure  of  hearing  this  argument,  which  took  place  before  a  commit- 
tee of  the  Legislature,  and  the  cities  of  the  Commonwealth  came  here  and  saw  that  a 
bill  was  not  enacted  which  would  have  taken  av/ay  from  the  cities  of  the  Common- 
wealth this  control  that  they  had  had  over  their  streets,  ceded  to  them  by  the  Legis- 
lature for  a  period  of  over  twenty  years. 

Mr.  Wysor:  I  did  not  understand  the  gentlema^n  to  mean  that  it  would  take  away 
the  police  power  of  the  cities  over  their  streets,  but  it  means  to  prevent  the  cities 
taking  away  the  power  of  eminent  domain  on  the  part  of  the  State. 

Mr.  Ingram:  Yes;  but  I  say,  w^ith  the  greatest  respect  to  the  gentleman  from 
Pulaski,  that  the  right  ought  to  be  left  to  the  cities  of  saying  what  telephone  corpo- 
rations  should  come  into  their  midst,  and  upon  what  terms,  and  you  are  perfectly  safe 
in  leaving  that  power  in  the  hands  of  the  local  corporate  town  or  city  authority, 
where  it  justly  and  properly  belongs.  I  hope  this  committee  will  sustain  the  report 
of  the  committee  and  vote  down  all  these  amendments.  I  fear  the  result  of  the 
passage  of  any  of  them. 


1974  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Braxton:  Mr.  Chairman,  I  had  not  intended  to  say  anything  on  this  sub- 
ject, but  it  seems  to  me  it  is  one  of  such  importance  that  I  ought  to  submit  to  the 
consideration  of  the  committee  some  arguments  which  have  occurred  to  me  and  which 
I  have  not  yet  heard  advanced. 

It  seems  to  me,  Mr.  Chairman  and  gentlemen  of  the  committee,  it  is  a  funda- 
mental principle  that  ought  to  be  observed  that  the  right  of  municipalities  to  dispose 
of  their  municipal  franchises  should  not  be  taken  away  from  them.  Gentlemen  have 
talked  about  this  depriving  the  State  of  the  right  of  eminent  domain.  I  beg  to  call 
the  attention  of  the  committee  to  the  fact  that  the  right  of  eminent  domain  is  practi- 
cally not  involved  in  this  question.  Under  the  right  of  eminent  domain  property 
is  taken  for  public  use  and  compensation  is  paid  for  it.  Under  the  authority  which, 
by  the  proposed  amendments,  would  be  conferred  upon  the  Legislature,  the  right  to 
take  municipal  franchises  could  be  conferred  upon  these  companies  without  their 
paying  a  cent  for  it,  and  they  could  be  permitted  to  pervade  every  street  and  alley 
of  every  city  and  town  in  the  Commonwealth,  and  appropriate  to  themselves  franchises 
possibly  worth  hundreds  of  thousands  of  dollars.  Would  they  do  this  under  the  right 
of  eminent  domain?  Not  at  all.  They  would  do  it  under  a  free  and  absolute  gift  to 
them  of  what  belongs  to  the  public  without  their  paying  one  cent  of  compensation 
for  it. 

Do  these  companies  condemn  the  streets?  Do  they  pay  the  local  abutting  land 
owners  anything  for  the  additional  servitude,  as  they  have  to  do  when  they  go  along 
the  county  roads,  or  settle  with  them?  Do  they  pay  the  city  or  the  town  anything  for 
the  franchises  they  take?  Not  a  single  solitary  cent.  If  this  amendment  means 
anything,  it  means  the  Legislature  should  be  authorized  to  permit  them  without  say- 
ing, "By  your  leave,"  to  any  one,  to  go  there  and  take  these  valuable  franchises, 
impose  this  additional  servitude  upon  the  public  highway,  and  pay  not  a  cent  of  com- 
pensation to  individuals  or  to  the  public  therefor.  I  take  it,  sir,  it  is  a  proposition 
that  cannot  be  refuted  that  when  a  telephone  company  undertakes  to  erect  its  poles 
upon  the  public  highways  in  the  counties  they  must  either  pay  or  satisfy  the  abutting 
land  owners  for  the  additional  servitude  they  place  upon  it;  but  no  such  thing  is 
done  in  the  cities  or  towns. 

Mr.  Thorn:  Does  not  the  gentleman  know  that  it  has  been  decided  in  the  Court 
of  Appeals  of  Virginia  that  the  putting  up  of  a  pole  in  the  street  is  additional  servi- 
tude, and  an  adjoining  property  owner  has  a  right  to  demand  payment  for  it? 

Mr.  Meredith:  Has  it  not  been  held  that  the  erection  of  poles  and  the  running 
of  electric  cars  is  not  a  burden  on  them? 

Mr.  Thom:  That  was  decided  in  a  case  in  which  I  was  engaged  at  the  last  term 
of  the  Court  of  Appeals. 

Mr.  Braxton:  The  gentleman  seems  to  be  certain  of  his  position,  but  I  think 
he  is  mistaken.  I  think  no  such  right  exists  in  the  cities,  and  I  do  not  know  of  any 
case  where  abutting  property  holders  have  ever  gotten  any  compensation  for  it.  I 
call  the  attention  of  the  committee  to  the  fact  that  this  does  not  interfere  in  any  way 
with  the  free  and  uncontrolled  right  of  every  citizen  of  the  Commonwealth  to  pass 
over  every  street  and  alley  of  any  city  in  its  midst.  It  is  not  intended  to  restrict  that 
right,  so  far  as  the  Legislature  controls  it. 

But,  gentlemen  of  the  committee,  what  is  proposed  here  is  not  that  these  cor- 
porations should  have  the  same  right  that  individuals  and  the  general  public  have 
in  the  highways,  but  to  bestow  upon  them  a  right  which  in  its  nature  is  conclusive 
and  monopolistic,  allowing  them  to  do  in  the  streets  what  no  man  other  than  them- 
selves is  permitted  to  do,  allowing  them  to  dig  up  the  streets  and  lay  their  sub- 
ways, or  fill  the  streets  with  a  forest  of  poles  more  or  less  dangerous  to  the  commu- 
nity.   That  is  the  thing  which  is  granted  to  them. 

Mr.  Thom:    Do  I  understand  the  gentleman  to  mean  by  his  argument  that  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA.  1975 

suggestion  is  to  give  the  power  to  the  companies  to  fill  the  streets  with  a  forest  of 
poles,  when  the  articles,  as  suggested,  absolutely  puts  that  within  the  control  of  the 
cities?    Does  he  not  understand  that? 

Mr.  Braxton:  I  understand  that,  and  I  think  the  gentleman  did  not  catch  my 
remark.  What  I  said  was  directed  to  the  argument  which  I  undestood  the  gentle- 
man to  advance,  that  the  State  and  every  citizen  of  the  State  had  rights  in  the  public 
highways,  which  rights  the  effect  of  this  proposition  was  to  infringe  upon  and  re- 
strict; and  I  wish  to  call  attention  to  the  fact  that  the  report  of  this  committee,  as 
it  now  stands,  does  not  infringe  upon  any  such  rights,  but  undertakes  to  restrict  the 
right  of  the  Legislature  to  grant  to  a  corporation,  other  rights  in  addition  to  those 
that  an  individual  citizen  has,  those  rights  which  involve  valuable  franchises  of  the 
city,  Yvhich  ought  to  be  paid  for,  and  which,  under  this  amendment,  you  would  take 
from  the  cities  the  right  to  charge  for,  things  worth  hundreds  and  hundreds  of 
thousands  of  dollars. 

If  you  say  merely  that  the  right  of  police  control  shall  be  retained  to  the  cities, 
you  take  from  them  absolutely  the  right  to  charge  rental  for  the  use  of  their  streets, 
the  right  to  charge  anything  whatsoever  for  the  franchise,  for  which  possibly  they 
could  get  hundreds  of  thousands  of  dollars.  You  take  from  them  the  right  to  fix 
maximum  rates  to  protect  their  citizens  against  undue  and  unreasonable  encroach- 
ments by  these  telephone  companies. 

I  call  attention  to  the  fact  that  the  right  to  use  the  public,  highways  as  the  ordi- 
nary citizen  uses  it  is  not  conclusive.  Practically  an  indefinite  number  of  people  can 
use  it;  but  to  use  it  as  the  telephone  company  uses  it  is  to  that  extent  exclusive 
and  monopolistic.  There  are  only  a  certain  number  of  companies  which  can  use  the 
streets  in  that  way.  Practically  indefinite  millions  of  people  can  walk  and  drive 
along  the  streets.  So  just  to  the  extent  to  which  you  grant  these  franchises  for  the 
use  of  the  streets  to  one  company,  you  are  taking  it  away  from  others;  and  if  by 
chance  they  should  do  as  they  inevitably  do,  fall  into  the  hands  of  one  company  or 
under  one  control,  that  community  is  held  by  the  throat  by  a  company  which  has 
taken  up  all  the  available  franchises  of  your  streets,  thereby  excluding  the  possi- 
bility of  competition,  exercising  what  is  in  its  nature  an  unavoidable  monopoly,  and 
doing  as  the  Bell  Telephone  Company  has  ever  done,  flouting  all  authority  and  defy- 
ing all  public  opinion. 

I  say,  gentlemen  of  the  committee,  we  would  be  committing  the  greatest  mistake 
if  we  take  from  the  cities  the  right  to  control  these  things,  the  right  to  sell  their 
own  franchises,  or  make  the  best  terms  for  them,  the  right  to  say  who  shall  use  these 
exclusive  rights  of  their  streets,  which  are  limited  in  number,  and  under  what  cir- 
cumstances and  conditions,  and  what  they  shall  pay  for  them,  and  what  sort  of  service 
they  shall  render  to  the  citizens  in  return. 

The  sole  exception  that  I  know  to  the  general  rule  that  the  cities  and  towns 
should  have  control  of  these  matters,  not  of  the  use  by  citizens  of  the  streets  to  pass 
along,  but  of  the  peculiar  use  that  the  general  public  does  not  have,  is  in  the  case  of 
steam  railroads  running  through  a  city. 

Mr.  Wysor:  Suppose  there  is  a  long  distance  line  running  into  the  city  of  Staun- 
ton, and  another  long  distance  line  wants  to  parallel  it,  what  is  to  hinder  the  city  of 
Staunton  from  making  a  combination  with  the  line  that  is  already  in  there,  and 
prevent  the  other  line  from  entering? 

Mr.  Braxton:  Nothing  in  the  world,  except  that  the  city  of  Staunton  is  sup- 
posed to  represent  the  interests  of  the  citizens  of  Staunton,  and  the  telephone  com- 
pany represents  its  own  personal  interests.  If  there  is  to  be  any  monopoly  of  those 
streets,  I  think  it  should  be  in  the  city  of  Staunton,  and  not  in  the  long  distance 
telephone  company. 

So  far  as  a  public  railroad  is  concerned.  I  think  the  conditions  are  different.  In 


1976  DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  first  place,  as  pointed  out  by  the  distinguished  gentleman  from  Lynchburg  (Mr. 
Glass),  a  railroad  passing  through  a  town  has  one  single  line,  that  does  not  start  out 
and  interlace  every  street  and  alley.  It  goes  through  a  city  by  one  line.  It  is  not 
exclusive  and  monopolistic  in  its  character.  In  addition  to  that,  if  a  railroad  is  not 
allowed  to  pass  through  the  city,  frequently  the  contour  of  the  country  is  such  that 
it  would  practically  stop  the  railroad,  and  it  could  not  get  by.  But  you  gentlemen 
must  know  that  the  expense  and  the  difficulty  of  establishing  a  telephone  line  is  not 
to  be  compared  with  the  expense  and  difficulty  of  laying  a  railroad  track.  You  can 
run  a  telephone  line  over  hills  and  down  valleys.  You  can  climb  mountains  and  go 
anywhere  that  the  foot  of  man  can  carry  you.  There  is  absolutely  no  reason  why  a 
telephone  company,  with  an  expense  that  you  could  hardly  calculate,  should  not  go 
around  a  town  as  well  as  through  it.  With  a  railroad  it  is  different.  Sometimes  the 
route  through  the  town  is  the  only  available  route  for  the  road.  That  is  never  true 
of  a  telephone  company. 

As  to  the  difficulties  that  my  friend  from  Norfolk  (Mr.  Thom)  has  su^ested,  I 
submit  they  are  purely  imaginary  and  fantastic.  They  are  based  upon  the  idea  that 
the  various  communities,  actuated  by  motives  which  made  the  man  cut  oft  his  nose 
to  spite  his  face,  would  build  a  Chinese  wall  around  themselves  and  voluntarily  cut 
themselves  off  from  communication  with  the  outside  world,  in  order  to  spite  some 
telephone  company.  Such  a  thing,  I  think,  is  absolutely  inconceivable.  I  say  if  it 
did  exist,  the  remedy  is  simply  for  the  telephone  company  to  deflect  its  line  and  go 
around  the  town.  No  such  thing  would  ever  be  done,  unless  the  telephone  company 
was  so  unreasonable  in  its  demands  that  the  city  would  be  justified  in  compelling  it 
to  do  so.  If  the  telephone  comes  within  any  ordinary  reason,  it  is  to  the  interest  of 
the  tov/n  to  let  the  telephone  company  come  in;  but  whenever  you  say  to  the  tele- 
phone company,  "We  will  arm  you  with  privileges"  which  the  Bell  Telephone  Com- 
pany recently  thought  it  had  under  an  act  of  Congress  to  go  where  it  chose  and  when 
it  chose,  and  say  to  the  authorities,  "Whether  I  go  on  the  right  side  of  the  street  or 
the  left  side  of  the  street,  I  will  drive  out  other  companies.  I  v/ill  use 
your  street  exclusively,  and  I  will  not  pay  you  a  cent  for  the 
privilege."  Whenever  you  give  them  that  power,  you  have  put  into  their 
hands  a  monopoly  the  like  of  which  does  not  exist  in  this  country;  and  I  trust 
it  may  be  the  pleasure  of  the  committee,  by  adopting  this  provision  as  reported,  not 
to  make  any  new  departure,  but,  as  pointed  out  by  the  distinguished  gentleman  from 
Lynchburg,  sim-ply  to  adhere  to  what  has  been  the  statute  lav/  of  this  State  for 
twenty  or  thirty  years,  that  the  Legislature  shall  grant  to  no  telephone  company  the 
right  to  go  through  any  town  and  use  its  streets  and  alleys  without  the  consent  of 
the  local  authorities  of  the  town.  I  think  you  will  find  that  same  principle  is  em- 
bodied in  almost  every  Constitution  in  the  United  States  that  has  been  adopted  in 
the  last  twenty  or  twenty-five  years. 

Mr.  O'Flaherty:  Would  you  be  in  favor  of  any  of  the  cities  of  the  Common- 
wealth operating  a  telephone  monopoly? 

Mr.  Braxton:  If  there  is  to  be  a  telephone  monopoly,  I  would  rather  for  it  to 
be  operated  by  the  State  in  the  interest  of  the  general  public  than  operated  by  a  close 
corporation  in  its  own  interest. 

Mr.  O'Flaherty:  On  the  other  hand,  do  you  want  the  city  to  have  the  exclusive 
right  to  control  telephones?    Would  you  be  willing  for  that? 

Mr.  Braxton:  I  would  be  willing  for  the  city  to  have,  and  I  think  the  cities 
ought  to  have,  the  exclusive  control  over  its  monopoly  franchise,  and  if  you  do  not 
give  t>^em  that  exclusive  control,  I  say  you  have  done  them  and  the  general  public 
a  very  great  injury.  Those  things  are  of  great  value,  and  if  you  take  from  them 
the  power  to  grant  them  or  sell  them,  you  are  simply  giving  to  private  corporations 
public  facilities  for  nothing,  and  making  them  a  present,  as  it  were,  of  that  much 
of  the  public  interest. 


DEilATES  OF  THE  COJS' bi'ITUTIONAL  COXVEXTION  OF  VIRGINIA.  1977 


Mr.  O'Flaherty:  I  wish  to  call  the  attention  of  the  gentleman  to  the  fact 
that  in  the  next  section^  which  is  a  kindred  section,  it  is  provided  that  all  franchises 
may  belong  to  the  city  at  the  end  of  the  franchises,  and  all  the  ijroperty  that  be- 
longs to  the  city  may  be  taken  at  a  valuation  to  be  fixed,  by  a  method  provided  for, 
so  that  a  telephone  companj^  with  all  of  its  properties,  might  be  taken  over  by  the 
city,  and  the  city  then  might  not  give  its  consent  to  other  telephone  companies  com- 
ing in  there.  In  that  way  they  would  have  a  monopoly,  and  could  fix  the  rates  for 
other  portions  of  the  State.    Do  you  think  that  ought  to  be  permitted? 

Mr.  Braxton:  As  I  said  before,  I  do  not  favor  monopolies,  but  if  a  monopoly 
is  inevitable,  it  should  be  ov;ned  and  controlled  by  the  public,  and  not  by  private 
individuals.  I  will  say  to  the  gentleman  that  even  if  what  he  suggests  should  be- 
come true,  that  city  could  not  in  any  w^ay  monopolize  anything  except  the  telephone 
facilities  of  that  particular  city.  All  that  would  have  to  be  done  by  any  other  tele- 
phone company  would  be  simply  to  deflect  its  route  and  go  around  the  city,  which 
it  could  do  in  the  case  of  even  a  big  city  like  Richmond  for  $250  or  $500.  But  if 
the  gentleman  v/ill  allow  me,  the  suggestion  he  makes  is  purely  chimerical.  It 
would  never  occur. 

Mr.  O'Flaherty:  The  gentleman  is  taking  an  alternative  that  cannot  occrto*. 
He  says  that  if  there  should  be  a  monopoly  as  between  individuals  and  the  city,  he 
would  prefer  the  city.  I  agree  with  him  on  that  proposition,  but  I  do  not  see  how 
a  monopoly  could  ever  occur  where  the  consent  is  to  be  left  to  the  Legislature. 

Mr.  Braxton:  Suppose  the  Legislature  should  enact  a  law,  as  I  understand  it 
came  very  near  doing  a  year  or  two  ago,  saying  that  all  long  distance  telephone 
companies  should  have  the  right  to  enter  upon  and  use  any  of  the  streets  and  alleys 
of  any  incorporated  town  of  the  State,  subject  only  to  the  police  regulations  of  that 
town.  Then  they  could  go  there,  if  Lhey  chose,  and,  in  defiance  of  the  city  au- 
thorities, exclude  and  break  down  a  company  which  is  giving  the  city  satisfactory 
service,  and  then  raise  their  rates  three  or  four  times  on  the  people,  as  they  have 
frequently  done.  I  think  the  committee  should  recognize  the  point  made  by  the 
gentleman  from  Culpeper  (Mr.  Barbour)  that  the  only  difference  between  the  long 
distance  company  and  a  strictly  local  company,  so  far  as  I  have  heard  it  defined 
here,  is  that  the  local  company  could  be  limited  entirely  to  a  city,  and  if  it  ran  a 
mile  out  in  the  county  it  would  become  a  long  distance  company  and  could  snap 
Its  fingers  in  the  face  of  the  municipality. 

Mr.  Hunton:  Mr.  Chairman,  I  desire  briefly  to  express  my  views  upon  the 
pending  amendment,  and  without  reference  to  the  language  of  the  amendment  I 
shall  state  them  briefly. 

My  view  is  that  the  cities  and  towns  of  the  Commonvrealth  of .  Virginia  should 
have  full  and  absolute  power  to  control  and  regulate  the  me^nner  in  which  these 
companies  should  enter  the  towns  and  occupy  their  streets,  but  that  they  should 
not  have  the  power  to  prohibit  an  enterprise  of  that  sort  from  entering  their  town 
upon  reasonable  terms  and  regulations.  The  State  of  Virginia  and  its  citizens  at 
large  are  interested  in  this  matter.  We  know  that  the  State  to-day  taxes  telephone 
companies  $1.50  a  telephone,  and  that  it  is  one  of  the  subjects  of  large  revenue  to  the 
State.  We  know  that  telephones  are  also  the  subject  of  taxation  by  the  munici- 
palities. We  know  they  are  a  means  of  communication  which  bring  distant  parts 
of  the  State  together,  and  put  the  parts  of  the  State  in  communication  with  the  out- 
side world. 

It  does  not  seem  to  me  it  is  right  to  take  from  the  Legislature  of  Virginia  the 
power  to  name  the  term^s  upon  which  these  now  essentials  of  the  civilization  of  this 
century  should  occupy  the  territory  of  the  State.  I  want  to  see  the  right  of  every 
city  absolutel3^  recognized  to  control  the  manner  and  the  method  of  their  occupa- 
tion, and  not.  as  my  friend  from  Staunton  (Mr.  Braxton)  suggests,  that  they  may 
125 — Cpnst.  Deb. 


1978  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

have  as  many  telephones  as  they  choose  on  as  many  streets  of  any  city  as  they 
may  desire.  Such  is  far  from  my  desire  in  supporting  the  amendment  that  has 
been  offered.  I  want  to  leave  to  every  city  the  right  to  compel  these  companies  to 
put  their  wires  under  ground.  I  want  to  leave  to  every  city  of  tbe  Commonwealth 
the  right  to  compel  them  to  use  such  streets  as  they  may  indicate.  I  want  to  leave 
to  the  communities  of  the  State  absolute  control  in  the  method  of  their  entry,  but 
I  do  wish  to  ask  the  Legislature  to  give  to  these  essentials  of  progress  of  this 
day  and  generation  the  right  under  certain  conditions  to  enter  a  town  even  against  the 
will  of  that  town. 

I  will  suppose  a  case,  and  it  is  not  a  violent  one,  with  such  a  benefit  to  the 
people  of  the  Commonwealth.  I  will  take  my  own  village  as  an  illustration,  remote 
as  it  is  from  the  Capital  of  Virginia,  further  from  it  in  point  of  time  and  con- 
venience than  the  city  of  New  York.  Give  to  it  the  benefit  of  long-distance  com- 
munication with  all  the  people  of  the  city  of  Richmond,  and  it  would  be  to  that 
town  a  boon  the  value  of  which  cannot  be  appreciated  until  it  has  been  had  and  lost. 
I  say  it  is  an  infinite  benefit  to  the  citizens  of  the  State,  and  to  the  towns  and  cities 
of  the  State,  not  only  in  the  greater  advantage  of  communication,  but  in  tax  pro- 
ducing revenues,;  and  I  would  take  from  the  city  the  power  to  prohibit  the  entry  of 
these  corporations  into  their  midst,  but  would  give  them  the  fullest  power  of  regu- 
lation and  control  as  to  the  method  in  which  they  should  enter. 

Mr.  Meredith:     Is  there  any  amendment  pending  of  that  nature? 

Mr.  Hunton:  I  think  so.  I  think  the  amendment  which  gives  to  the  cities 
control,  confines  this  measure  to  local  telephone  companies,  but  retains  to  them  the 
absolute  power  to  control  their  streets,  because  when  you  take  it  up  and  limit  it  to 
local  companies  that  right  of  power  remains  in  the  Legislature  of  the  State.  That 
is  the  reason  it  amounts  to  nothing,  because  it  is  the  law  without  its  having  been 
put  there.  But,  in  order  to  make  it  perfectly  clear,  definite  and  certain  that  that 
power  of  control  is  retained  to  the  cities,  it  is  put  in  express  words  in  the  terms 
of  the  amendment  proposed.  I  do  not  object  to  its  being  given  specifically  in  this 
article,  but  I  believe  the  Legislature  is  a  sufRcient  guarantee  of  its  control.  Friends 
have  suggested  that  a  bill  of  this  sort  might  go  through  the  Legislature  without 
notice  to  the  cities  interested.  Why,  the  same  would  be  true  of  a  steam  railway, 
which  is  specially  exempt,  and  which  is  much  more  injurious  to  a  city  than  is  a 
telephone  company.  Suppose,  gentlemen  of  the  committee,  there  was  a  city  which 
chose  of  its  own  volition  to  hold  up  this  great  improvement,  this  great  development, 
and  to  say  in  an  obstinate,  stubborn  way  it  would  not  permit  the  telephone  line  to 
enter.  The  Legislature  ought  to  have  the  power  to  say  that  community  shall  per- 
mit the  company  to  enter  upon  reasonable  and  proper  terms  and  regulations,  such 
as  may  be  prescribed  by  law.  I  do  not  agree  at  all  with  the  statement  of  the  law 
as  laid  down  by  my  friend  from  Augusta  (Mr.  Braxton)  that  there  is  no  additional 
compensation  paid  for  these  matters.  The  Court  of  Appeals  has  decided  that  tele- 
graph poles  are  an  additional  burden,  and  that  the  owners  are  entitled  to  compen- 
sation therefor.  I  see  no  reason,  and  I  believe  there  is  none,  why  the  same  law 
would  not  apply  to  telephone  poles  in  the  streets  of  the  cities  as  well  as  to  tele- 
graph poles  in  the  roads  of  the  country.  I  believe  that  is  the  law.  Nor  can  I  agree 
with  the  gentleman  from  Culpeper  (Mr.  Barbour),  or  the  gentleman  from  Augusta, 
that  there  is  anything  that  can  differentiate  these  matters  from  steam  railways. 
The  identical  principle  that  leads  them  to  exempt  steam  railways,  which  are  muchi 
more  injurious  to  the  communities,  much  more  inconvenient  and  much  more  dan- 
gerous, would  apply  to  the  telephone  or  the  telegraph  company  entering  the  city 
with  the  same  or  greater  force  than  to  the  steam  railway  company. 

Mr.  Barbour:  A  trolley  line,  for  instance,  has  to  pay  additional  damages  for 
using  a  public  highway,  does  it  not? 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA. 


19?9 


Ivlr.  Hunton:    Yes,  sir. 

Mr.  Barbour:    Does  not  the  same  distinction  apply  to  telephones? 

Mr.  Hunton:  It  does  not,  in  my  judgment,  and  I  will  tell  you  why.  The  streets 
are  condemned  for  the  purpose  of  travel,  and  anything  that  is  in  that  line  is  in 
subservience  to  that  general  purpose  for  which  they  were  condemned.  A  telephone 
company  is  not  a  method  of  travel,  but  is  a  new  service,  and  there  is  the  same  dis- 
tinction in  the  city  between  the  telephones  and  the  railway  that  there  is  in  the 
country  between  the  travelers  over  the  road  and  the  telephone  poles  that  stand 
thereon. 

Mr.  Barbour:    Are  not  roads  also  condemned  for  travel? 
Mr.  Hunton:     Unquestionably  they  are. 

Mr.  Barbour:    What  is  the  distinction  between  the  road  and  the  street? 

Mr.  HuJLton:  Not  a  bit.  I  am  trying  to  show  they  are  identically  one  and  the 
same,  and  that,  while  the  road  is  condemned  for  travel,  the  telegraph  pole  is  an 
additional  servitude  upon  it.  The  streets  are  condemned  for  travel,  and  while  the 
street  railroad  is  not  an  additional  servitude,  a  telephone  would  be,  because  it  is 
not  for  the  purpose  of  travel. 

Mr.  Barbour:  If  you  condemn  a  road  outside  of  a  city  for  tramway  purposes, 
you  have  to  pay  additional  damages  because  it  is  an  additional  ser^'itude,  whereas 
if  you  cross  the  city  line  and  come  into  the  city  and  condemn  the  streets,  you  do 
not. 

Mr.  Hunton:  That  has  nothing  to  do  with  whether  a  telephone  pole  is  an  addi- 
tional servitude  or  not.  and  that  is  the  point  I  am  discussing. 

Mr.  Summers:  I  should  like  to  ask  the  gentleman  if  there  have  not  been  two 
decisions  in  Virginia  on  the  (luestion  as  to  whether  the  telegraph  pole  is  an  addi- 
tional servitude. 

Mr.  Hunton:  The  two  last  have  held  it  as  an  additional  servitude.  Until  a  new 
court  comes  it  is  as  stable  and  as  well  fixed  as  any  principle  in  law  is  fixed  by 
judicial  decision. 

My  friend  from  Staunton  (Mr.  Braxton)  undertakes  to  say  that  jou  have  no 
right  to  charge.  That,  I  think,  is  an  unfair  criticism  of  this  proposition.  The  State 
of  Virginia  to-day,  as  I  have  stated,  taxes  telephone  companies  $1.50  for  every  tele- 
phone. The  cities  have  the  same  right  that  belongs  to  the  State  to  tax  telephones, 
and  every  city  uncontrolled  by  this  article  has  the  right  to  tax  each  and  every  tele- 
phone put  in  by  a  company  for  the  purpose  of  transmitting  messages  by  telephone. 
Nor  is  there  anything  in  this  article  that  would  prevent  a  city  offering  to  let 
these  lines  come  upon  the  terms  of  competition;  but  I  do  not  think  it  is  right  to 
the  interests  of  the  State  and  of  the  Commonwealth.  We  can  suppose  a  case  where 
there  is  a  city  the  entry  into  which  is  asked  in  order  to  establish  such  a  system, 
and  that  there  is  a  local  company.  That  company  may  be  strong  enough  to  control 
the  city  and  its  council  and  to  stand  like  a  stone  wall  and  say,  "The  State  shall  not 
liave  this  improvement  because  of  the  local  interests  of  that  company."  I  do  not 
believe  that  is  right.  I  believe  the  interests  of  the  whole  State  should  prevail,  and 
that  the  protection  of  that  community  should  be  delegated  to  Its  representatives 
in  the  Legislature  who  voice  their  sentiments,  and  If  it  is  a  right  and  proper  ob- 
jection, that  objection  will  be  hearkened  to  and  represented  in  the  act  that  is 
passed,  rather  than  let  it  stand  as  a  stone  wall  to  prevent  benefits  to  the  people  of 
the  residue  of  the  State. 

In  conclusion,  this  matter  is  of  importance  to  the  State  not  only  for  the  pur- 
poses of  progress  and  development,  but  because  of  the  capital  Invested  and  the 
taxes  it  yields  not  only  to  the  State  of  Virginia,  but  to  every  municipality  in  which 
it  is  located. 

You  have  protected  everj'  community  of  the  State  when  you  give  to  every  city 


1980 


DElBATES  of  the  constitutional  convention  OE  VIRGINIA. 


and  town  the  right  to  regulate  and  control  the  method  of  entry,  but  it  would  be 
unjust,  improper  and  unfair  to  permit  any  city  to  say  that  because  of  its  local 
desires  or  wishes,  whether  righi  or  wrong,  it  will  prevent  such  an  improvement 
to  the  people  if  the  whole  Commonwealth,  who  are  entitled  to  the  benefits  of  a 
system  such  as  this. 

I  trust  it  w411  be  the  pleasure  of  the  committee  to  support  the  amendment  that 
has  been  offered. 

Mr.  Braxton:  I  understood  the  gentleman  to  say  in  his  closing  remarks  that 
the  provision  as  it  is  now  offered  by  the  committee  might  prevent  subjects  of  taxa- 
tion being  established  for  the  cities  as  well  as  the  counties.  I  should  like  to  ask 
if,  under  the  proposed  authority,  that  would  be  given  by  the  amendment  offered 
by  the  gentleman  from  Norfolk  (Mr.  Thom)  the  Legislature  would  permif  these 
telephone  companies  to  go  into  a  city  without  any  city  franchise,  what  would  there 
be  for  the  city  to  tax.  If  there  were  no  franchises  to  tax^  what  would  there  be  as  a. 
subject  of  city  taxation  except  the  naked  poles  and  wires  strung  on  them? 

Mr.  Hunton:  And  that  would  be  the  thing  we  would  have  there  to  tax.  Just 
as  the  State  imposes  a  tax  of  $1.50  a  telephone,  the  city  or  town  could  impose  a 
similar  tax,  without  any  limitation  as  to  the  amount  in  the  Constitution. 

Mr.  Braxton:  If  there  is  no  franchise  to  tax,  the  only  thing  they  could  tax 
would  be  the  value  of  the  property  on  an  acZ  valorem  valuation  of  the  wood  in  the 
pole  or  the  iron  and  copper  in  the  wire;  so  that  the  franchise  might  be  worth  hun- 
dreds of  thousands  of  dollars  to  the  telephone  company,  and  the  city  could  not  levy 
a  tax  of  a  cent  on  it  because  it  was  allowed  to  come  there  without  any  franchise. 

Mr.  Hunton:  Does  my  friend  mean  to  state  to  this  body,  as  a  lawyer,  that  if  a 
telephone  company  were  permitted  to  enter  the  city  of  Staunton,  with  absolute 
silence  upoD  the  subject  of  taxation,  the  city  of  Staunton  could  not  impose,  as  the 
SLal^  does  to-day^  a  tax  of  $1.50  a  telephone  upon  that  company? 

Mr.  Braxton:  I  will  state  to  the  gentleman,  then,  that  in  my  opinion  as  a 
lawyer  it  tne  teiephone  company  were  permitted  to  enter  the  town  and  do  business 
without  any  municipal  franchise,  the  city  without  special  legislative  authority  would 
have  no  light  to  charge  them  anything  in  the  world  except  an  ad  valorem  tax  on  the 
value  of  iheir  Ime  and  their  poles,  as  so  much  property,  and  not  any  franchise  tax. 
That  is  my  judgment,  sir.  I  may  be  wrong.  I  state  it  subject  to  correction.  But 
you  asked  for  my  opinion. 

Mr.  Wysor:     Why  could  not  the  city  tax  their  business? 

Mr.  Braxton:  "I  say  they  have  no  right  to  tax  their  business  without  special 
legislative  authority;  but  if  they  had  no  franchise  there  to  tax,  there  w^ould  be 
nothing  there  to  base  it  upon. 

While  I  am  on  my  feet  I  wish  to  say  one  w^ord  more,  as  I  am  very  much  im- 
pressed with  the  importance  of  this  matter.  The  law  as  stated  by  the  report  of  the- 
committee  has  practically  been  the  law  that  has  been  kept  upon,  and  been  upon,  our 
statute  books  for  years.  As  far  as  I  know,  there  has  never  been  but  one  attempt  to 
do  the  thing  which  the  amendment  of  the  gentleman  from  Norfolk,  if  adopted,  would 
make  it  possible  to  do,  and  when  that  attempt  was  made  two  years  ago  the  State 
got  up  in  arms  against  it.  The  State  was  on  fire  from  one  end  to  the  other  with 
protests  against  the  exercise  by  the  Legislature  of  any  such  authority  as  is  thought 
to  be  given  to  the  Legislature  by  this  amendment.  What  we  want  dow  is  simply  to 
say:  "You  shall  not  do  the  thing  which  you  tried  to  do  once,  and  which  met  with 
such  a  unanimous  protest  from  the  people  from  one  end  of  the  State  to  the  others 
but  you  must  continue  to  adhere  to  a  policy  which  you  yourselves  have  laid  down 
in  your  statute,  and  which  has  been  the  law  for  twenty  or  thirty  years,  with  which 
the  people  of  this  Commonwealth  are  satisfied,  and  do  not  want  changed." 

Mr.  Hunton:    I  wish  to  say  to  the  gentleman  from  Staunton  that  I  am  informed 


DEBATES  OP  THE  COXSTITUTIOXAL  CONVEXTIOX  OF  YIKGIXIA.  1981 

the  city  of  Richmond  to-day  levies  a  license  tax  upon  tiie  telephones  operating  in 
the  city  by  virtue  of  the  general  provisions  in  its  cnarter,  which  authorizes  it  to 
levy  a  license  tax  upon  the  various  occupations,  whicn  provision  is  in  tne  charter 
of  almost  every  city,  I  presume,  of  the  Commonwealth  of  Virginia. 

Meredith:  I  did  not  intend  to  mislead  the  gentleman  into  saying  we 
■charge  a  license  in  that  way,  as  we  do  not.  We  have  a  franchise,  granting  them  the 
right  to  come  in  under  our  charter,  and  we  charge  them  so  much  per  mile  oi  wire. 

Mr.  Thorn:  I  shall  not  detain  the  committee  long,  but  I  desire  to  present  a  few 
facts  in  opposition  to  some  that  have  been  placed  before  it.  The  suggesdon  has 
been  made  that  what  is  attempted  here  has  been  the  law  of  this  State  for  twenty 
years.  I  deny  that  -proposition.  What  is  attempted  here  is  to  take  from  the  Legis- 
lature the  power  of  permitting  such  a  company  as  we  are  now  discussing  from 
entering  the  streets  of  the  cities  of  the  State.  That  has  not  been  the  law  for  twenty 
j^ears,  and  it  has  never  been  the  law;  but  the  purpose  here  is  to  make  a  change  in 
the  law,  and  to  prevent  the  Legislature  from  doing  what  it  now  has  a  right  to  do. 
I  ask  this  committee  not  to  lose  sight  of  the  controversy  before  it.  The  controversy 
before  it  is  not  as  between  the  telephone  companies  on  the  one  side  and  the  cities 
on  the  other,  but  the  controversy  before  it  is  as  to  whether  or  not  the  State  shall 
still  continue  to  exercise  these  powers  in  behalf  of  its  own  citizens,  or  shall  sur- 
render those  powers  to  some  other  municipalities  of  the  State. 

That  controversy  is  emphasized  by  an  answer  made  by  the  gentleman  from 
Staunton,  that  the  city  of  Staunton  represented  the  interests  of  its  citizens.  Are  the 
interests  of  the  city  of  Staunton  the  only  interests  involved  there?  Have  not  the 
citizens  of  every  other  part  of  this  State  an  interest  in  this  question  as  well  as  the 
citizens  of  the  cities?  Have  not  the  citizens  of  the  country  districts  the  same  rights 
involved  here  as  those  of  the  cities?  Are  not  the  interests  of  one  city  involved 
in  the  legislation  of  another  city,  and  ought  those  interests  not  confined  to  the 
citizens  of  the  city  to  be  handed  over  to  the  common  councils  of  the  cities,  or  should 
they  be  in  the  keeping  and  within  the  protection  of  the  Legislature  of  the  State? 

Now,  that  is  the  controversy.  The  controversy  on  one  side  is  to  take  my  rights 
and  3'our  rights  as  citizens  of  Virginia,  and  have  them  decided  by  the  Common 
Council  of  the  city  of  Staunton  instead  of  by  the  Legislature  of  our  State.  It  is  to 
take  your  rights  and  have  them  decided  by  the  city  of  Norfolk  instead  of  by  the 
Legislature  of  your  State.  If  the  cities  are  the  guardians  of  the  rights  of  their 
own  citizens,  then  likewise  the  State  is  the  guardian  of  the  interests  of  its  citizens. 
There  is  no  right,  and  no  justice,  in  putting  my  rights  as  an  inhabitant  of  the 
city  of  Staunton  or  of  the  city  of  Richmond  into  the  common  councils  of  those 
cities.  I  should  have  the  right  to  go  to  the  Legislature  of  my  State.  The  proposi- 
tion is  to  take  from  the  cities  the  right  to  require  pay  for  the  use  of  the  streets. 
That  matter  is  likewise  in  the  discretion  of  the  Legislature.  In  the  grant  by  the 
legislature  of  the  right  to  a  long  distance  telephone  company  to  enter  a  cit5"  it 
could,  if  it  thought  proper,  impose  the  condition  that  that  right  should  be  paid 
for  to  the  city,  and  if  it  is  withheld — and  we  know  from  the  course  of  legislation  it 
T^•ill  be  withheld  for  some  overwhelming  reason — there  is  no  danger  to  the  locality. 
The  only  thing  is  to  prevent  a  change  in  the  law,  and  to  take  from  the  Legislature  the 
right  to  determine  questions  in  which  eyevy  citizen  of  the  State  is  interested,  and  to 
transfer  that  power  to  the  common  councils  of  cities. 

Mr.  Brooke:  Mr.  Chairman,  I  propose  to  say  just  a  very  few  words  on  this  sub- 
ject, more  by  way  of  letting  the  Committee  of  the  Whole  know  what  is  the  situation 
after  all  this  argument  of  the  committee  that  has  returned  this  report,  of  which  1 
happen  to  be  chairman.  I  may  say.  sir,  that  nothing  that  has  occurred  has  changed 
the  views  of  the  Committee  on  the  Organization  and  Government  of  Cities  and  Towna 
upon  this  subject. 


1982  DEBATES  OF  THE  CONSTITUTIOHAL  CONVENTION  OE  VIRGINIA. 

In  the  beginning,  when  the  amendment  of  the  gentleman  from  Hanover  (Mr. 
Carter)  was  suggested  upon  the  spur  of  the  moment  I  said  that  p'^rsonally  I  would 
be  willing  to  accept  it,  I  would  not  be  willing  to  accept  it  now,  and  there  are  just 
one  or  two  things  I  wish  to  say  before  closing  this  debate. 

It  does  seem  to  me  that  in  this  argument  the  gentlemen  on  the  other  side  have- 
drifted  av/ay  from  their  moorings.  It  does  seem  to  me  that  in  this  argument  a  great 
deal  has  been  injected  that  really  throws  no  light  upon  the  subject. 

The  gentleman  from  Norfolk  (Mr.  Thorn)  seems  to  feel  that  he  has  settled  the 
Question  when  he  calls  attention  to  the  fact  that  the  citizens  of  other  parts  of  the 
State  have  an  interest  in  this  question.  Does  he  know  of  any  question  which  is  sub- 
mitted in  the  charters  to  the  control  of  cities,  in  which,  more  or  less,  the  citizens  of 
other  parts  of  the  State  do  not  have  an  interest?  Does  he  not  recognize  the  fact  that 
it  is  one  of  the  peculiarities  of  the  existence  of  cities  that  they  have  a  dual  character- 
istic, that  in  one  sense  they  are  the  agencies  for  carrying  out  the  policies  of  the  State, 
and  while  in  another  sense  they  are  spoken  of  as  being  local  governments,  yet  even  in. 
that  sense,  though  to  a  less  degree,  they  are  the  agencies  of  the  State  itself. 

Now,  where  is  the  line  drawn  in  questions  of  this  sort,  when  we  come  to  deter- 
mine the  question  as  to  how  far  the  State  at  large  shall  commit  to  the  city  govern- 
ment the  administration  of  certain  of  the  rights  or  certain  of  the  functions  of  gov- 
ernment in  the  proper  administration  of  which  every  citizen  of  the  State  is  inter- 
ested? When  you  come  to  consider  that  question,  upon  what  lines  is  the  demarca- 
tion made?  Why,  largely  upon  these  lines.  As  to  those  matters  in  which  the  people 
of  the  locality  are  infinitely  more  largely  interested  than  the  people  of  the  State  at 
large,  it  has  been  the  policy  to  commit  them  to  the  management  of  the  local  govern- 
ment, without  at  all  denying  that  even  in  those  the  citizens  of  other  portions  of  the 
State  have  an  interest  in  their  proper  management. 

As  to  those  other  functions  of  government  in  which  there  is  no  large  difference 
in  the  degree  of  interest  felt  in  them  by  the  people  of  the  locality  and  by  the  people 
of  the  State  at  large,  where  the  interest  is  general,  which  cannot  be  said  to  be  in  any 
sense  local,  then  it  is  that  the  policy  has  been  to  withhold  from  the  municipal  govern- 
ment the  absolute  control  of  those  matters. 

Now,  the  gentleman  from  Norfolk  seems  to  think  that  the  difference  between  this 
question  of  long  distance  telephones  and  the  other  public  utilities,  the  use  by  which 
of  the  streets  is  to  be  absolutely  controlled  by  the  council,  is  that  the  one  is  local  and 
the  other  is  not  local.  He  says  that,  as  a  citizen  of  the  State  of  Virginia,  he  has  a 
right  to  the  streets  of  the  city  of  Norfolk.  I  say  that  there  is  no  difference  between 
that  principle  and  this;  that  as  a  citizen  of  the  State  of  Virginia  I  have  a  right  to 
come  to  the  Legislature  and  ask  it  to  incorporate  a  local  telephone  company  or  a  cold 
storage  company,  to  occupy  the  streets  of  Norfolk,  in  order  that  I  may  invest  my  money 
in  it.  I  have  just  as  much  right  as  a  citizen  of  Virginia  to  invest  my  money  in  utility 
companies  operating  in  the  streets  of  Norfolk  as  I  have  as  a  citizen  to  walk  the  streets 
of  Norfolk.    There  is  no  distinction,  in  fact,  between  the  two  classes  of  cases. 

Now,  then,  to  come  back  to  the  line  of  demarcation,  I  suggested  in  the  beginning 
in  this  question  of  long  distance  or  local  telephones,  it  makes  no  difference  how 
stands  the  question  of  interest  between  the  locality  and  the  people  at  large.  Where 
is  the  greatest  interest?  Is  it  local,  among  the  people  of  the  locality,  or  is  it  equally 
among  the  people  of  the  State  at  large?  Why,  the  very  question  answers  itself.  It  is 
the  burden  of  the  telephone  system  of  poles  and  wires  in  the  streets  of  a  city  that 
makes  the  interest  of  the  locality  so  much  greater  than  the  interest  of  the  people  at 
large  that  it  becomes  one  of  those  functions  of  government  that  ought  to  be  left  entirely 
to  the  control  of  the  locality,  just  the  same  as  leaving  to  the  control  of  the  locality, 
through  the  councils,  the  question  of  the  health  of  a  State.  Everybody  in  the  State 
is  interested  in  the  good  health  of  every  community  in  the  State,  but  it  is  so  much 


DEBATES  OF  THE  COXSTITUTIOXAl.  COXYEXTIOX  OF  YIEGIXIA.  1983 

more  in  the  interest  of  the  people  of  the  particular  locality  that  it  has  become  a  set- 
tled doctrine  that  to  municipal  governments  is  given  the  povrer  to  deal  locally  vvith  the 
question  of  local  health. 

2vlr.  Carter:  Does  the  Constitution  propose  to  give  to  the  cities,  in  regulating  the 
health  of  the  cities^  the  power  to  pass  quarantine  laws,  and  take  from  the  Legislature 
that  power? 

Mr,  Brooke:    The  Constitution  does  not  propose  anything  about  that,  as  far  as  I 
know.    I  have  made  no  such  proposition.    I  should  leave  that  to  the  Legislature. 
Mr.  Carter:    And  why  not  leave  this  to  the  Legislature? 

Mr.  Brooke:  It  seems  to  me  that  this  one  is  a  much  more  fundamental  question 
than  that.  Here  we  are  coming  to  the  question  as  to  whether  people  of  the  State  at 
large,  who  never  put  their  foot  in  the  city  of  Norfolk  or  in  the  city  of  Richmond,  have 
a  right,  because  of  their  right  to  use  these  commercial  agencies,  to  say  the  streets  of 
those  cities  shall  be  used,  or  rather,  to  say  that  the  councils  of  those  cities  shall  not 
determine  the  question  whether  the  streets  of  those  cities  shall  be  used,  in  such  a  way 
as  to  impose  an  immense  burden  upon  the  people  of  the  locality,  in  order  to  save  the 
casual  right  that  the  man  in  other  parts  of  the  State  has. 

I  leave  the  question,  with  you. 

Mr.  Flood:  The  proposition  here  is  not  to  take  from  the  cities  the  right  to  regu- 
late the  use  of  their  streets,  but  to  take  from  the  cities  the  right  to  deny  to  the  com- 
pany the  right  to  come  in  at  all. 

Mr.  Brooke:  Yes,  sir;  the  gentleman  is  right.  The  strongest  argument  in  favor 
of  the  position  taken  by  the  committee  on  that  subject  is  that  only  by  giving  this 
absolute  right  to  the  councils  can  you  properly  regulate  these  companies.  Put  them  on 
terms  whether  they  shall  come  in  or  not,  and  then  you  can  regulate  them.  Let  them 
come  in,  and  you  will  be  left  only  to  put  reasonable  terms  on  them,  and  they  do  what 
they  choose,  and  the  people  of  the  community  are  left  to  their  rights. 

Mr.  Hunton:  Mr.  Chairman,  as  to  the  power  of  the  city  to  tax,  which  was  ques- 
tioned by  my  friend  from  Augusta  (Mr.  Braxton),  I  desire  to  read  part  of  Section 
1042  and  Section  1043  of  the  Code: 

Sec.  1042.  In  addition  to  the  State  tax  on  any  license,  the  council  of  a  city  or  town 
may,  when  anything  for  which  a  license  is  so  required  is  to  be  done  within  the  city  or 
town,  impose  a  tax  for  the  privilege  of  doing  the  same  and  require  a  license  to  be 
obtained  therefor. 

Sec.  1043 — City  and  Town  Levies.  They  shall  annually  cause  to  be  made  up  and 
entered  on  their  journal  an  account  of  all  sums  lawfully  chargeable  on  the  city  or  town 
which  ought  to  be  paid  within  one  year,  and  order  a  city  or  town  levy  of  so  much,  as  in 
their  opinion  is  necessary,  to  be  raised  in  that  way,  in  addition  to  what  m.ay  be  received 
for  licenses  and  from  other  sources.  The  levy  so  ordered  may  be  upon  the  male  persons 
in  the  said  city  or  town  above  the  age  of  sixteen  years,  and  upon  any  property  therein, 
and  on  such  other  subjects  as  may  at  the  time  be  assessed  with  Stat©  taxes  against  per- 
sons residing  therein. 

It  seems  to  me  that  under  both  of  those  sections  the  cities  and  towns  of  the  State 
would  have  the  right  to  tax  these  companies. 

Mr.  Flood:  Mr.  Chairman,  I  agree  with  the  gentleman  from  Norfolk  (Mr.  Thorn) 
that  this  is  taking  away  from  the  Legislature  powers  that  the  Legislature  has  had  for 
twenty-five  years,  ought  to  have,  ajid  which  it  has  never  abttsed.  It  is  simply  another 
one  of  the  provisions  of  the  Constitution  we  are  framing  which  takes  from  the  Legis- 
lature power  which  it  has  always  heretofore  exercised,  and  exercised  in  the  interest  of 
the  Commonwealth. 

As  the  gentleman  from  Norfolk  says,  this  is  not  a  provision  which  has  ever  before 
been  in  the  Constitution  of  Virginia,.  It  has  heretofore  been  in  the  statute  law.  Now 
it  goes  from  there  to  the  Constitution,  and  if  it  goes  in  the  Constitution,  it  will  put  the 
entire  State,  so  far  as  the  development  of  its  long  distance  telephone  sj'stem  is  con- 


1984 


DEBATES  OF  THE  CONSTITUTIOi^AL  CONVENTION  OE  VIRGINIA. 


eerned,  in  the  power  of  any  one  or  two  or  three  little  towns  or  cities  in  the  Com- 
monwealth. 

Mr.  Green:  Will  the  gentleman  permit  me  to  ask  him  on  which  side  he  was 
ranged  in  the  late  Richmond  fight? 

Mr.  Flood:  Yes,  sir.  I  supported  the  bill  chartering  the  Virginia  Telephone  and 
Telegraph  Company,  as  it  passed  the  Senate,  with  the  single  exception  of  the  pro- 
vision prescribing  a  rate  beyond  which  the  company  could  not  charge;  in  other  words, 
a  maximum  rate  clause. 

I  acted  as  I  did  because  I  believed  my  course  would  redound  to  the  best  interest 
of  Virginia.  That  it  would  give  us  a  large  increase  of  taxable  values— estimated  at 
that  time  at  $5,000,000;  that  it  would  give  employment  to  a  considerable  number  of 
our  laborers  and  young  men;  that  it  would  make  an  increase  demand  for  telephone 
poles,  and,  above  all,  that  it  would  bring  the  benefits  and  comforts  of  a  comprehensive 
telephone  service  to  the  people  of  Virginia,  and  especially  to  the  country  districts.  It 
was  the  only  telephone  company  that  had  a  line  in  my  county.  I  knew  its  value  and 
wanted  to  give  other  counties  the  benefits  my  people  were  enjoying  and  at  the  same 
time  extend  the  benefits  those  people  were  then  receiving.  That  bill  proposed  to  ex- 
tend a  telephone  service  to  every  magisterial  district  of  this  State  within  the  period 
of  two  years  from  its  passage. 

The  bill  asked  for  but  one  single  power  that  every  other  bill  incorporating  tele- 
phone companies  did  not  ask  for,  and  that  was  the  right  to  appeal  from  the  city  and 
town  councils  to  the  corporation  or  county  judge  having  jurisdiction,  if  the  regula- 
^Vn  imposed  by  the  councils  were  unreasonable,  or  such  as  to  prohibit  the  company 
from  entering  the  city  or  town.  This  was  the  point  upon  which  the  charter  was  at- 
tacked, and  the  Senate  decided  to  confer  this  power. 

I  supported  the  bill  alluded  to  by  the  gentleman  from  Danville  because  I  believed 
It  wise  to  do  so,  for  the  reasons  I  have  given.  I  am  satisfied  with  the  course  I  then 
followed. 

The  right  was  then  asked  by  a  private  interest,  though  the  granting  of  it  would 
liave  benefited  the  public.  Now  no  private  interest  is  involved,  but  the  rights  of  the 
public  of  the  great  mass  of  the  people  who  live  in  country  districts  is  involved,  and  I 
feel  it  my  duty  to  speak  and  vote  in  their  interest. 

This  is  not  the  fight  of  any  special  telephone  company;  it  is  not  the  fight  of  two 
years  ago.  It  is  a  provision  that  applies  not  to  existing  telephone  companies,  but  to 
those  which  will  ask  for  privileges  in  the  future.  It  is  a  provision  involving  a  general 
principle,  which,  if  placed  in  the  Constitution,  might  cause  trouble  to  city,  town  and 
county;  a  principle  which  can  be  used  to  the  detriment  of  the  weak  as  well  as  the 
strong  companies;  a  principle  which  can  be  applied  to  the  disadvantage  of  the  owners 
©f  'phones  in  mutual  companies,  much  easier  than  to  the  hurt  of  large  corporations. 

I  would  not  vote  for  any  proposition  that  would  take  from  the  towns  and  cities  of 
this  State  any  of  their  rights.  I  do  not  believe  this  amendment  will  have  any  such 
effect.  I  know  it  would  not.  Their  rights  of  this  character  have  always  been  vested 
in  the  General  Assembly;  they  have  always  been  protected.  If  I  did  not  think  the 
General  Assembly  would  protect  "our  cities  and  towns,  I  would  vote  for  any  provision 
for  their  protection;  but  I  know  there  is  no  such  danger. 

I  have  been  absent  from  the  hall  during  most  of  the  discussion  on  this  amendment. 
I  have  only  heard  the  last  two  speeches.  I  do  not  know,  therefore,  what  range  the 
discussion  has  taken,  but  from  the  length  of  time  I  am  informed  has  been  consumed 
I  suppose  the  merits  have  been  fully,  discussed  and  I  will  not  go  further  into  them. 

I  only  wish  to  make  clear  my  reason  for  supporting  the  amendment.  It  does  not 
take  from  the  cities  and  towns  any  rights  they  now  have;  it  leaves  the  matter  where  it 
mow  is,  and  has  been  for  years.  I  do  not  believe  it  is  wise  to  take  this  safeguard  from 
the  statute  law  and  put  it  in  the  Constitution.    I  believe  the  Legislature  should  have 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA, 


1985 


the  power  to  interpose,  if  ii  deems  it  wise  to  do  so,  and  prevent  a  disagreemenL  be- 
tween a  city  and  a  State  enterprise  from  depriving  the  counties  and  the  rest  of  the 
cities  from  the  benefit  of  that  enterprise. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Han- 
over (Mr.  Carter)  as  modified  by  the  accepted  amendment  of  the  gentleman  from  Nor- 
folk (Mr.  Thorn) ^  w^hich  the  Secretary  will  read. 

Ihe  Secretary  then  read: 

Insert  after  the  word  "''conduif'  the  word  "local."  Insert  at  the  end  of  the  section 
the  following:  "Nothing  in  this  article  shall  be  construed  to  deprive  the  cities  and 
towns  of  the  power  of  reasonable  regulation  and  control  of  the  manner  of  use  of  the 
streets  and  highways  in  the  same.'' 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  26;  noes,  45. 
On  motion  of  Mr.  Thom,  the  committee  rose  and  the  President  resumed  the  chair. 
On  motion  of  Mr.  P.  Y\'.  Campbell,  the  Convention  adjourned  until  Friday,  Janu- 
ary 24,  1902,  at  10  o'clock  A.  M. 


FRIDAY,  January  24,  1S02. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  Asbury  Christian. 

Mr.  Barham:  Mr.  President,  when  the  legislative  report  VN'as  under  consideration 
in  the  Committee  of  the  Whole  I  offered  an  amendment  to  a  section  of  the  Legislative 
Committee's  report  to  be  inserted  as  an  independent  section.  It  was  agreed  to  in  Com- 
mittee of  the  Y/hole,  but  was  inadvertently  left  out  when  we  voted  on  the  question  in 
Convention.  I  hold  in  my  hand  a  copy  of  the  original  amendment,  which  was  amended. 
This  is  the  amendment  as  first  offered:  "That  after  the  adoption  of  the  Constitution  no 
new  office  shall  be  created  or  established  by  the  General  Assembly,  r^xcept  by  a  vote  of 
not  less  than  two-thirds  of  the  members  elected  to  each  house,  and  it  shall  be  by  a  re- 
corded vote  in  each  House."  There  w^as  a  substitute  offered  for  that  amendment,  to 
this  effect:  "But  no  new  office  shall  be  created  or  established  by  the  G-eneral  Assembly 
except  by  a  recorded  vote  in  each  House  of  a  majority  of  the  members  elected  to  said 
House."  The  Committee  of  the  Whole  acted  upon  that  substitute,  -^nd  it  was  adopted 
as  an  independent  section,  but  it  does  not  appear  in  the  report.  I  simply  wish  to  call 
attention  to  the  matter  and  to  have  it  acted  upon. 

The  President:  The  Chair  understands  the  omission  was  due  to  inadvertence  on 
the  part  of  the  Committee  of  the  Whole  in  making  their  report.  The  question  is  on 
agreeing  to  the  adoption  of  the  amendment. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  President,  by  instruction  of  the  Committee  on  Corporations,  I 
beg  to  present  its  report  and  ask  that  it  may  lie  on  the  table  and  be  printed. 

I  desire  to  suggest,  in  this  connection,  that  an  extra  number  of  copies  be  ordered. 
I  make  the  suggestion  because  there  are  a  large  number  of  gentlemen  interested  in  this 
matter.  I  think  it  would  be  well  to  have  500  extra  copies,  and  I  therefore  move  that 
that  number  of  extra  copies  be  printed. 

The  President:  The  report  of  the  Committee  on  Corporations  will  lie  on  the 
table  and  be  printed  under  the  rules. 

The  gentleman  from  Augusta  (Mr.  Braxton)  moves  that  500  pxtra  copies  of  the 
report  be  printed  for  the  use  of  the  Convention. 

The  motion  was  agreed  to. 

Mr.  Smith:    Mr.  President,  it  may  not  be  in  order  at  this  time,  but  I  desire  to 


1986 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


raise  a  question  of  personal  privilege.  It  was  my  intention,  Mr.  President,  at  the  time 
that  a  measure  was  pending  beiore  this  Convention  looking  to  a  permanent  appro- 
priation or  provision  for  the  Virginia  Military  Institute,  to  have  submitted  certain 
reasons  which,  in  my  judgment,  would  have  supported  that  position.  Owing  to  con- 
ditions which  I  was  unable  to  control^  it  was  impossible  for  me  to  be  present  and  par- 
ticipate in  that  debate.  I  have  reduced  my  reasons  to  writing,  Mr.  President  and 
gentlemen  of  the  Convention^  and  the  question  of  privilege  which  I  wish  to  submit  to 
you  this  morning  is  that  by  your  kind  indulgence  these  reasons  may  be  incorporated  in 
the  proceedings  of  this  day  as  those  which  I  would  have  given  at  the  time  the  debate 
was  in  progress  had  I  been  present. 

The  President:  If  there  be  no  objection,  it  will  be  so  ordered.  The  chair  hears 
none. 

The  views  of  Mr.  Smith,  as  reduced  to  writing,  v^ere  as  foiiows: 

VIEGINIA  MILITARY  INSTITUTE. 

Mr.  Smith:  Mr.  President,  before  the  vote  is  taken  upon  the  question  of  making 
provision  in  this  new  Constitution  for  a  permanent  appropriation  to  the  Virginia  Mili- 
tary Institute  I  rise  to  speak  a  few  words  in  behalf  of  the  measure  and  to  show  to  this 
Convention  some  of  its  claims  upon  the  State  of  Virginia. 

Sir,  what  is  it  that  forms  the  bulwark  of  a  people's  liberties  but  its  soldiery? 
What  strengthens  a  country's  place  in  the  eyes  of  the  world  but  its  ability  to  protect 
its  citizens  at  home  and  abroad,  to  resist  invasion  and  "to  hold  its  own"  by  sea  and  by 
land?  It  is  its  warlike  prowess,  its  children  of  "the  tented  field,"  its  "sailor  boys," 
which  give  name  and  fame  to  any  land. 

And  now,  to  bring  the  matter  home,  what  has  made  America  "the  land  of  the  free'^ 
but  that  it  has  ever  been  "the  home  of  the  brave!" 

As  pioneers  in  the  new  world,  contending  with  the  grim  obstacles  of  unexplored 
nature  and  the  wilder  savages  who  inhabited  these  coasts,  our  forefathers  won  their 
way  by  their  invincible  warrior  spirit;  later  they  achieved  their  separate  independence 
by  the  triumphs  of  the  sword,  and  now,  in  our  own  day,  a  matchless  victory  has  been 
ours.  That  small  band  of  Englishmen  who  landed  at  Jamestown  in  1607 — grown  to 
be  many  millions — has  leaped  like  Minerva  from  the  brain  of  Jove  with  a  mighty  war- 
shout  and  in  complete  armor,  and  has  become  one  of  the  great  powers  of  the  world. 
The  United  States  in  the  Spanish-American  war  by  its  victories  told,  and  its  possi- 
bilities untold,  has  taken  her  stand  far  above  and  beyond  nations  which  are  centuries 
older  and  hoary  in  the  struggle  for  international  supremacy. 

Sir,  it  is  not  the  poets,  the  philosophers,  the  statesmen,  the  orators  or  those  justly 
celebrated  in  the  arts  and  sciences  who  form  a  country's  highest  pride,  or  who  give 
that  country  its  weight  in  the  family  of  nations.  Sir,  it  is  the  army  and  the  nayy  of 
any  country  which  make  the  ground-work  of  its  greatness.  And  now,  in  contemplating 
the  amazing  progress  of  our  land,  this  giant-child  of  the  twentieth  century,  we  must 
realize  that  its  martial  spirit,  its  soldiery  abilities,  have  made  us  what  we  are.  And 
so,  at  this  moment  it  is  well  for  us  to  dwell  upon  these  facts  and  to  let  them  have  deep 
influence  upon  our  vote  to-day.  The  Virginia  Military  Institute  is  the  ■ecole  politechnique 
of  the  South,  and  what  that  great  nursery  of  soldiers  has  done  for  France  has  this 
military  school  done  for  the  State  and  for  the  South. 

This  institution  was  founded  in  the  year  1839  at  Lexington,  Va.  From  this  date  to 
1864  there  were  577  graduates,  and  out  of  this  number  there  were  474  who  took  an 
active  part  in  the  late  War  between  the  States.  Of  these  there  were  21  generals,  67 
colonels,  58  lieutenant-colonels,  41  majors,  125  captains,  90  lieutenants,  and  72  other 
officers. 

The  Virginia  Military  Institute  was  established  under  an  Act  of  the  General  As- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


i9sr 


sembly  of  Virginia,  passed  in  March,  1S39;  and  the  first  corps  of  cadeis  \vere  mustered 
into  the  service  of  the  State  on  the  11th  da.y  of  Xovemberj  1839.    Up  to  that  time  a 
company  of  soldiers  had  been  maintained  by  the  State,  at  an  annual  charge  of  $6,000, 
to  garrison  the  "V^'estern  Arsenal  at  Lexington,  in  vrhich  were  stored  30,000  muskets 
and  a  large  quantity  of  military  material.    In  1S36  J.  T.  L.  Preston,  Esq.,  a  citizen  of 
Lexington,  for  thirty-seven  years  an  honored  professor  upon  the  active  list,  and  after- 
wards emeritus  professor  in  the  Institute,  conceived  the  idea  of  substituting-  for  the 
company  of  soldiers  who  guarded  the  arsenal  a  company  of  cadets,  who,  in  addition 
to  the  duties  of  an  armed  guard,  should  pursue  a  course  of  scientific  and  military 
studies.    This  happy  conception  was  consummated  by  the  Act  of  March,  1839.  In 
May,  1839,  the  first  Board  of  Visitors  met  in  Lexington.    Of  this  board  Colonel  Claude 
Crozet,  a  graduate  of  the  Polytechnic  School  of  France,  a  soldier  under  Xapoleon  in  the 
Russian  campaign  of  1812,  and  subsequently  a  professor  in  the  United  States  Mili- 
tary Academy  at  West  Point,  and  at  the  time  a  citizen  of  Virginia,  was  President. 
The  first  act  of  the  new  board  was  to  recognize  the  eminent  fitness  of  General  Francis 
H.  Smith,  a  distinguished  graduate  of  West  Point,  and  at  that  time  professor  of 
mathematics  in  Hampden-Sidney  College,  for  the  position  of  superintendent.  Under 
wise  guidance,  in  the  prosecution  of  its  special  ends,  the  school  grew  rapidly  in  popular 
favor.    The  Legislature  increased  the  annuity  from  time  to  time,  and  appropriated  large 
amounts  to  provide  new  barracks  and  to  equip  the  institution.    In  1861  the  school  was 
full  to  its  capacity.    An  extension  of  the  barracks  vras  in  process  of  construction  to 
meet  the  demands  of  those  seeking  admission,  the  privileges  of  the  school  having 
been  extended  to  citizens  of  other  States.    In  April,  1861,  at  the  call  of  the  State,  the 
Corps  of  Cadets,  under  the  command  of  Major — afterwards  Lieutenant-General — Jack- 
son, marched  for  Richmond.    These  cadets  were  employed  in  instructing  and  drilling 
the  large  number  of  volunteers  assembled  for  organization  and  instruction  in  Camp 
Lee,  near  Richmond,  but  were  soon  disorganized  and  scattered  by  the  advancement  of 
cadets  to  military  rank  in  the  different  grades  of  service.    In  1862,  upon  the  demand 
of  the  military  authorities  of  the  Confederate  States  for  the  reorganization  of  the  Insti- 
tute as  a  training  school  to  supply  skilled  and  educated  officers  for  the  armies,  the 
Institute  was  reopened.   During  the  war  cadets  were  repeatedly  called  into  active  ser- 
vice in  the  Vallej^  of  Virginia  and  on  the  lines  around  Richmond.    On  the  loth  of  May,, 
1864,  at  New  Market,  the  Corps  of  Cadets,  organized  as  a  battalion  of  infantry  of  four 
companies,  and  as  a  platoon  of  artillery,  serving  two  three-inch  rifle  guns,  lost  over 
fifty  killed  and  wounded  cut  of  an  aggregate  of  two  hundred  and  fifty.    On  the  11th  of 
June,  1864,  the  barracks,  mess-hall,   officers'  quarters,  the  library  containing  about 
10,000  volumes,  and  all  the  apparatus  and  instruments  of  the  various  departments  of 
the  school,  were  burned,  by  order  of  General  David  Hunter,  commanding  the  United 
States  army  at  that  time  operating  in  the  Valley  of  Virginia.     From  providential 
causes,  the  quarters  of  the  superintendent  escaped  destruction,  and  was  the  only  build- 
ing left  standing  upon  the  grounds.    In  October,  1865,  after  the  close  of  the  war,  the 
Institute  was  reopened.    The  buildings  and  equipments  of  the  school  were  rapidly  re- 
stored, and  the  Institute  entered  upon  an  era  of  unprecedented  prosperity. 

In  the  organization  of  this  military  Institute,  one  cadet  from  each  senatorial  dis- 
trict in  Virginia  (numbering  thirty-nine)  is  educated  at  the  expense  of  the  State= 
Upon  matriculating  each  State  cadet  pledges  himself  after  graduation  to  become  a 
teacher  in  some  school  in  the  State,  and  to  continue  his  duties  of  instruction  for  two 
years.  Thus  it  will  be  seen  that  every  year  a  number  of  competent  teachers  are 
turned  out  by  the  institute  to  extend  the  benefits  of  their  training  and  knowledge  and 
to  form  as  it  were  an  ''endless  chain"  of  native-born,  efficient,  military  instructors. 

In  addition  to  all  of  these  advantages,  many  of  the  graduates  of  this  institution 
are  commissioned  as  officers  in  the  regular  army  of  the  United  States,  increasing  the 
representation  and  influence  of  the  State  of  Virginia  in  one  of  the  most  important 
governmental  agencies. 


l\)bS  DE.BATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

Perhaps  at  this  point  I  may  be  pardoned  for  a  personal  reminiscence  of  the  Vir- 
ginia Military  Institute.  It  Tvas  in  the  spring  of  18b4  when  the  red  war  cloud  waj» 
sweeping  over  our  devoted  land.  Being  sorely  pressed  by  tne  enemy.  General  Breck- 
enridge  lelt  obliged  to  call  out  the  battalion  of  cadets  to  his  assistance  in  the  Valley 
of  Virginia,  and  that  company  of  patriot  lads  eagerly  responded  to  [he  summons. 

Some  little  time  since  by  the  courtesy  of  a  friend  I  saw  the  pl?v,y  of  Cyrano  de 
Bergerac.  Intently  follow^ing  the  thread  of  the  story  it  reached  the  point  where  at 
the  disastrous  siege  of  Arras,  a  company  of  Gascon  cadets,  to  whom  had  been  assigned 
the  place  of  honor  and  post  of  danger,  had  fallen  under  the  attack  of  their  adversaries, 
save  their  commander,  who,  himself  desperately  wounded,  with  banner  in  one  hand 
and  sword  in  the  other,  just  before  he  fell,  pointed  to  his  dead  and  dying  comrades, 
exclaiming  with  pride  and  emotion,  "These,  these  are  the  cadets  of  Gascoigne."  The 
words  touched  a  hidden  chord  and  awoke  it  into  life.  The  brilliant  scene  faded  from 
my  view,  and  oblivious  to  surroundings  the  enchantress  Memory  transported  me  to 
May  14,  1864,  to  a  stone  or  brick  church  in  the  Valley  of  Virginia,  between  Harrison- 
burg and  New  Market,  where,  as  a  member  of  Company  A  of  the  Battalion  of  Cadets 
from  the  Virginia  Military  Institute  at  Lexington,  I  had  gone  to  sleep.  The  rattle  of 
accountrements  and  moving  feet  awakened  me,  to  find  the  battalion  in  progress  of 
formation  outside  of  the  church.    The  hour  was  midnight. 

There  was  iron  discipline  in  that  command.  The  line  being  formed  and  the  bat- 
talion brought  to  a  "parade  rest,"  it  looked  like  a  solid  body  instead  of  so  many  inde- 
pendent units.  A  veil  of  clouds  was  drawn  across  the  arch  of  heaven,  while  the  leaping 
flames  of  the  camp  fires  cast  fantastic  shadows  which  chased  each  other  into  the  gloam 
beyond;  the  moaning  of  the  winds,  the  sobbing  logs  upon  the  fires  and  the  falling 
rain  were  the  only  heralds  of  the  drama  which  w^as  to  be  enacted  so  soon  upon  the 
theatre  of  war.  Capt.  Frank  Preston,  professor,  commanding  B  Company,  was  under 
these  conditions  invited  to  invoke  the  Divine  Blessing  upon  the  organization.  There 
were  some  there  destined  to  die  before  the  morrow^'s  sun  should  run  its  course,  but 
they  knew  it  not,  nor  did  others.  There  were  others  there  to  languish  upon  beds  of 
suffering  and  pain,  from  wounds  to  be  received  before  the  twilight  came,  but  they 
knew  it  not,  nor  did  others.  But  ail  were  ready  to  die  a  soldier's  death  and  to  fill  a 
patriot's  grave. 

As  the  w^ords  of  prayer  fell  from  the  soldier-christian  lips  and  ascended  to  heaven, 
thoughts  of  home  and  loved  ones  came  thronging  upon  the  youths.  Faces  of  play- 
mate brother  and  gentle  sister,  of  the  dignified  father  v/hose  great  concern  was  the 
happiness  and  welfare  of  his  offspring,  of  the  devoted  mother,  upon  whose  bosom  his 
head  had  been  cradled  in  infancy,  and  at  whose  knee  he  had  first  lisped  the  Lord's 
prayer,  came  trooping  before  him  one  after  the  other.  But  the  mother's  face  lingered 
longest  and  last.  Ah,  these  mothers.  Then  saints  upon  earth,  most  of  them  now 
saints  in  heaven.    Hark!    I  seem  to  hear  their  voices  chanting  in  the  Angelic  Choir. 

It  was  a  scene  to  which  no  human  pen  could  do  justice. 

The  scene  changes  and  with  light,  swinging  step  the  corps  advances  to  meet  the 
enemy.  In  the  distance  can  be  seen  a  semicircle  of  campfires,  and  the  first  thought  is, 
that  the  adventure  is  to  be  a  night  attack,  but  marching  on,  marching  ever  from  mid- 
night to  dawn,  those  brightly  burning  fires  seem  always  to  recede.  As  day  breaks 
the  whole  army  can  be  seen  stretched  along  the  Valley  turnpike;  the  sound  of  horses' 
feet  can  be  heard  approaching  from  the  rear,  a  moment  more,  and  a  brilliant  cavalcade 
is  abreast  the  column;  it  takes  no  second  glance  to  fall  upon  the  chief,  tall,  striking  in 
appearance  and  with  all  of  the  grace,  fire  and  beauty  of  the  Southern,  General  John  C. 
Breckenridge,  commanding  the  little  army  is  beside  the  cadets.  They  salute  him  with 
a  rousing  cheer — upholding  his  gloved  hand,  he  said:  "Young  gentlemen,  I  am  glad  to 
see  you  in  such  fine  spirits  this  morning,  but  as  we  are  near  the  enemy,  I  think  it 
would  be  best  to  preserve  silence."    The  lines  of  battle  are  formed.    In  a  depression 


DEBATES  OF  THE  COXSTITUTIOiS AL  COXYEXTIOX  OF  YIRGIXIA.  1989 

between  two  ranges  of  hills,  near  New  ^^larket,  in  Shenandoah  county,  the  cadet  bat- 
talion is  halted,  to  strip  for  the  fight.  Haversacks  and  blankets  are  removed  and 
placed  in  piles,  and  the  young  athlete  stands  forth  for  a  trial  of  strength  with  mature 
manhood. 

It  is  true  that  the  Federal  army  numbered  about  10,000  men,  while  with  the  Con- 
federate colors  there  marched  only  about  3,000,  but  what  booted  the  disparity  in  forces! 
the  smaller  army  was  composed  in  the  main  of  Virginians,  who  stood  upon  their  native 
soil,  with  their  loved  ones  and  the  traditions  of  the  Commonwealth  behind  and  their 
foes  before  them.  In  "place  rest"  the  battalion  remained  and  saw  the  first  line  of 
battle  ascend  the  slope  and  engage  the  enemy.  The  battle  is  joined  and  the  "Young 
Guard"  wonder  when  their  time  will  come.  The  sound  of  .a  horse's  hoof  rapidly  beat- 
ing the  ground  smites  the  ear.  The  very  speed  at  which  the  rider  approaches  conveys 
the  tenor  of  his  message  in  advance.  Belts  are  drawn  tighter,  muscles  harden  and 
jaws  set  fast.  "Colonel  Shipp,  General  Echols  says  advance  youv  battalion,"  is  v/hat 
he  said  before  he  reached  the  side  of  the  commandant  of  cadets. 

The  little  speech  made  by  Colonel  Shipp  is  graven  upon  my  memory — "Hush 
talking  like  a  lot  of  mag-pies,  listen  to  your  officers  and  obey  their  orders."  The 
battalion  is  brought  to  attention  and  the  march  to  victory  and  to  death  is  begun. 
Up  the  same  slope  over  which  the  first  line  of  battle  had  preceded  them,  they  stream 
and  at  its  crest  met  the  storm  of  battle.  Ever  forv/ard  and  onward  they  press,  meeting 
soldiers,  some  of  whom  pass  around  the  flanks  of  the  cadet  battalion,  others  lie  down, 
for  them  to  pass  over  them,  others  still  are  dead,  dying  and  wounded — still  the  cadet 
battalion  passes  on.  A  gap  in  the  first  line  is  reached,  it  is  passed  and  still;  the 
battalion  moves  on.  That  was  Virginia  day.  The  battalion  of  cadets,  in  advance  of 
the  rest  of  the  army,  in  parade  formation,  with  colors,  general  guides  and  officers  to- 
the  front,  marching  with  empty  guns  in  face  of  concentrated  musketry  and  artillery 
fire.  When  within  a  short  distance  of  the  enemy,  Cary  Weston,  of  Norfolk,  Adjutant 
of  the  battalion,  saluted  Colonel  Shipp  with  his  sword,  saying:  "Colonel,  we  are  in 
advance  of  the  whole  line,"  and  then,  above  the  roar  of  infantry  fi^-e  and  scream  of 
shot  and  shell,  rose  the  clarion  voice  of  Colonel  Shipp  commanding,  "Mark  time, 
march."  In  the  Valley  of  Death,  in  parade  formation  they  executed  the  command, 
each  young  foot  marking  time  to  the  boom  of  hostile  gun;  the  flag  of  the  Common- 
wealth proudly  floating  in  the  breeze  before  their  e^' es :  they  were  maintaining  the 
honor,  the  traditions,  the  pride  of  Virginia.  The  hurtling  missiles  of  war  were 
killing  and  wounding  their  comrades,  but  preserving  their  line,  the  survivors  ever 
dressing  to  the  centre,  stepping  over  the  dead  and  wounded,  alw^ays  presented  a  solid 
and  compact  front  to  the  foe.  Then  it  was  that  the  youthful  band  experienced  the 
keen  delight  of  him  who  wrote — 

There  is  something  of  pride  in  the  perilous  hour, 
What'er  be  the  shape  in  which  death  may  lower, 
For  Fame  is  there  to  tell  who  bleeds, 
And  Honor's  eye  on  daring  deeds. 

The  fire  is  withering.  The  command,  "Halt,  lie  down."  is  given  and  obeyed.  The 
rest  of  the  army  reaches  the  line  occupied  by  the  Cadet  Battalion,  and  the  young  lion 
is  loosed,  the  battery  whose  grape  and  canister  had  wrought  such  destruction  and 
havoc  in  the  ranks  of  the  cadets  is  captured;  and  with  thrust  of  bayonet  and  butt  of 
musket  they  avenee  the  death  of  those  who  had  fallen  under  its  murderous  and 
destructive  missiles.  In  quick  succession  the  battalion  engages  two  reeiments  of 
infaritry.  each  comprising  a  force  much  greater  than  its  own.  and  defeats  them  in 
detail.  The  victory  is  won,  the  enemy  routed,  and  the  Cadet  Battalion  had  written 
a  new  page  in  the  lustrous  history  of  the  Commonwealth.  That  night  a  comforting 
dispatch  went  down  the  Valley  to  the  great  commander  of  the  army  of  Northern 


1990 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Virginia,  who  in  Spotsylvania  lay  with  his  army  locked  in  deadly  struggle  with  the 
Army  of  the  Potomac.    His  base  of  supplies  was  for  the  time  safe. 

Let  us  listen  for  one  moment  to  a  Federal  officer  who  himself  took  part  in  the 
battle  of  New  Market,  and  hear  what  he  thinks  of  the  Virginia  Military  Institute 
cadets  upon  that  bloody  day. 

A  few  days  since  the  News  published  an  article,  taken  from  the  Richmond  Times, 
"Why,  I  went  to  the  V.  M.  I./'  which  was  a  statement  of  a  young  cadet  who  was  in 
Richmond  with  the  corps  of  cadets  at  the  recent  unveiling  of  the  Confederate  Soldiers' 
Monument,  on  May  30th.  The  young  cadet  referred  to  is  a  son  of  a  gallant  Federal 
soldier  who  served  in  a  Pennsylvania  regiment,  and,  fronting  the  "Cadet  Battalion" 
in  the  battle  of  New  Market,  witnessed  their  charge,  which  resulted  in  the  capture 
of  a  Federal  battery  and  made  the  corps  of  cadets  and  the  V.  M.  I.  famous  in  the 
events  of  the  recent  war  between  the  States. 

General  Lincoln  was  made  prisoner  in  that  fight,  and  taken  to  Harrisonburg, 
and  while  there,  a  prisoner,  had  conversation  with  Major  Johnson,  post  quarter- 
master; Colonel  Smith,  of  the  Sixty-second  Virginia  Regiment;  Col.  A.  S.  Gray,  Dr. 
G.  K.  Gilmer  and  others. 

The  following  is  an  extract  of  a  letter  written  by  General  Lincoln,  dated  Wor- 
cester, Mass.,  March  10,  1888,  to  the  late  Rev.  James  H.  Smith,  son  of  the  lamented 
Gen.  Francis  H.  Smith,  for  half  a  century  superintendent  of  the  Virginia  Military 
Institute.  General  Lincoln's  letter  corroborates  the  statement  of  the  Federal  soldier 
who  was  under  his  command,  and  who  said,  after  witnessing  that  gallant  charge,  that 
if  ever  he  had  a  son,  he  would  educate  him  at  the  Virginia  Military  Institute.  He 
has  now  two  sons  in  the  V.  M.  I. 

I 

*  $  «  «  0  Naturally  enough,  incidents  of  the  battle,  the  conduct  of  troops,  and  to 
some,  though  less  extent,  that  of  some  of  the  officers  on  each  side,  were  spoken  of.  I 
well  recollect,  even  now,  our  own  position,  the  field  of  battle  and  the  appearance  of  each 
army.  We  were  upon  the  right  of  the  infantry  line;  to  our  right,  upon  ground  slightly 
elevated,  a  six  gnn  battery.  The  Sixty-second  Virginia,  which  formed  the  extreme  left 
of  the  attacking  force,  advanced  directly  against  us.  To  the  right  of  the  Sixty-second 
were  the  cadets.  The  line  of  advance  was  a  little  diagonal  to  that  of  our  formation,  and 
as  it  was  continued  the  Sixty-second  passed  beyond  and  the  cadets  came  directly  to  our 
front.  Our  fire,  both  that  of  artillery  and  infantry,  was  rapid  and  continuous,  and 
when  the  battery  opened  with  canister,  was  destructive.  As  the  advance  was  continued, 
it  was  apparent  that  the  cadets  were  in  advance  of  the  general  line  of  the  attacking 
force. 

Here  their  forward  movement  ceased,  and  for  a  moment  it  seemed  as  if  their 
advance  was  checked.  But  what  seemed  a  check  was  in  reality  a  halt,  during  which 
time  "those  boys"  marked  time,  dressed  their  rauKs,  and  when  again  aligned  on  the  left, 
came  forward  in  most  admirable  form.  The  whole  thing  was  done  with  as  much  pre- 
cision and  steadiness  as  if  on  parade,  and  this  while  all  the  time  subjected  to  a  destruc- 
tive fire.  No  one  wuo  saw  it  will  ever  forget  it.  No  command,  but  one  most  admirably 
drilled  and  disciplined,  could  have  done  it;  and,  if  other  troops  on  that  field  could,  it  is 
safe  to  say  no  otherbody  did  do  that  thing.  In  after  time  around  our  camp  fire,  the 
gallant  conduct  of  those  little  fellows  (for  such  they  seemed  to  be)  was  spoken  of 
among  ourselves,  and  always  in  terms  of  the  highest  commendation.  With  no  desire  to 
disparage  me  conduct  of  other  organizations  in  that  army,  I  should  be  doing  injustice 
to  myself,  the  tirave  men  of  my  own  command,  and  the  young  men  who  composed  that 
battalion,  if  I  failed  to  render  to  them  unqualified  praise,  and  I  most  heartily  join  you 
in  "your  purpose  to  exalt  the  .gjallantry  of  the  cadet  battalion  as  high  as  truth  can 
uplift  it." 

»*«««**«** 

(Signed)  William  S.  Lincoln, 

Colonel  late  Thirty-fourth  Massachusetts  Infantry,  and  Brevet  Brigadier-General  United 
States  Yo\viTi\.QQTS.~-Staunton  News. 

Mr.  President,  England  in  song  and  story  perpetuates  the  charge  of  her  600 
at  Balaclava;  Spain  cherishes  the  memory  of  the  Roncesvalles  Pass,  where  all  her 
harnessed  chivalry  perished;  the  story  of  the  bloody  river  Raisin  is  not  forgotten  in 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIRGIXIA.  1991 

Kentucky,  for  there  she  plumed  her  warrior  sires;  and  the  annals  of  France  treasure 
the  fame  of  countless  deeds  of  valor.  If  I  had  my  wish,  sir,  this  should  be  a  Hall  of 
Fame  devoted  to  the  preservation  of  the  memory  of  great  deeds  performed  by  the  sons 
of  the  Old  Dominion.  Springing  arches  would  be  here,  and  on  them  painted  Man- 
assas, Williamsburg,  Seven  Pines,  Gaines'  Mill,  Malvern  Hill,  Mechanicsville,  Fred- 
ericksburg, Sharpsburg,  Cold  Harbor,  Slaughter's  Mountain,  Chancellorsville,  Spot- 
sylvania, Kemstown,  Cross  Keys,  Port  Republic^  New  Market,  and  other  engagements 
in  which  Virginians  participated.  And  on  the  pillars  supporting  these  arches  there 
should  be  recorded  the  names  of  Lee,  Jackson,  Johnston,  A.  P.  Hill,  Stuart,  Early, 
William  E.  Jones,  Wise,  William  Smith,  Kemper,  Pickett,  Rhodes,  Wharton,  Mc- 
Causland,  Terry,  Garnett,  Winder,  Walker,  Hunton,  Wickham,  Corse,  Mosby,  and  the 
other  leading  spirits  who  shed  lustre  upon  the  name  of  Virginia — and  above  all 
this  inscription,  "Read  these  names,  lest  you  forget." 
My  story  is  told. 

I  do  not  feel  that  it  is  asking  a  favor  at  your  hands  to  desire  you  to  vote  to 
embody  a  provision  in  the  Constitution  for  the  preservation  and  perpetuation  of  the 
Virginia  Military  Institute,  but  rather  that  it  affords  you  an  opportunity  to  be  of 
service  to  the  State.  Leave"  it  to  me,  sir,  and  I  will  so  entwine  it  in  the  very  vitals  oi 
the  organic  law  that  it  will  last,  as  I  hope  the  Commonwealth  will — 

Until  the  years  grow  old, 
.  And  the  stars  grow  cold. 
And  the  leaves  of  the  judgment  roll  unfold. 

Mr.  Glass:  On  yesterday,  in  discussing  the  proposition  of  the  delegate  from  Han- 
over (Mr.  Carter),  I  said,  "I  think  the  proposition  offered  by  my  friend  from  Hanovei' 
is,  as  has  been  said,  a  revival  of  the  fight  we  had  before  the  General  Assembly  two 
years  ago."  What  I  meant  by  that  was  simply  this:  That  the  same  principle  was  in- 
volved in  the  one  proposition  as  was  involved  in  the  other;  that,  in  fact,  it  was  the 
same  proposition.  That  is  all  I  meant  to  say.  I  am  told  the  impression  may  be 
gotten  from  the  remark  that  some  telephone  company  was  the  inspiration  of  the  propo- 
sition to  amend  the  committee's  report  by  inserting  the  single  word  "local."  So  far  as 
I  am  concerned,  I  had  not  the  remotest  idea  that  any  telephone  company  had  inter- 
ested itself,  that  it  had  any  knowledge  of  this  report  of  the  committee,  or  that  there 
was  anything  more  involved  in  the  proposition  of  my  friend  from  Hanover  than  that 
he  desired  to  make  the  amendment  indicated.  I  wish  now  to  disclaim  any  purpose  to 
suggest  that  there  was  an  attempt  to  revive  the  fight  of  two  years  ago  in  the  sense 
that  any  telephone  company  had  interested  itself. 

On  motion  of  Mr.  Brooke,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organi- 
zation and  Government  of  Cities  and  Towns,  Mr.  Withers  in  the  chair. 

The  Chairman:  Are  there  any  further  amendments  to  Section  10?  If  not,  the 
Secretary  will  read  Section  11. 

Sec.  11.  The  rights  of  every  city  or  town  in  and  to  its  water  front,  wharf  property, 
public  landings,  wharves,  docks,  streets,  avenues,  parks,  bridges  and  all  other  public 
places,  are  hereby  declared  inalienable,  except  by  an  ordinance  or  joint  resolution  passed 
by  a  recorded  three-fourths'  vote  of  all  the  members  elected  to  each  branch  of  the 
council  of  said  cities,  and,  in  case  of  the  veto  by  the  mayor  of  such  an  ordinance  or 
joint  resolution,  it  shall  require  a  recorded  vote  of  three-fourths  of  all  the  members 
elected  to  such  branch  of  the  council  to  pass  the  same  over  the  veto;  and  no  franchise, 
lease  or  right  to  use  the  same,  either  on,  through,  across,  under,  or  over,  and  no  other 
franchise  granted  by  a  city  or  town  to  any  private  corporation,  association,  firm  or  indi- 
vidual, shall  be  for  a  longer  period  than  thirty  years.  Such  grant  and  any  contract  in 
pursuance  thereof  may,  in  the  discretion  of  the  council  and  of  the  grantee  of  said 
franchise,  provide  that  upon  the  termination  of  the  grant  the  plant,  as  well  as  the 
property,  if  any,  of  the  grantee  in  the  streets,  avenues  and  otner  public  places  shall 


199^ 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


thereupon,  without  further  or  other  compensation  to  the  grantee,  or  upon  the  payment 
of  a  fair  valuation  therefor,  be  and  become  the  property  of  the  said  city  or  town;  but 
the  grantee  shall  be  entitled  to  no  payment  by  reason  of  the  value  of  the  franchise,  and 
any  such  plant  and  property  acquired  by  a  city  or  town  may  oe  maintained,  controlled 
and  operated  by  such  city  or  town.  Every  such  grant  shall  specify  the  mode  of  deter- 
mining any  valuation  therein  provided  for,  and  shall  make  adequate  provision  by  way 
of  forfeiture  of  the  grant,  or  otherwise,  to  secure  efficiency  of  public  service  at  reasonable 
rates,  and  the  maintenance  of  the  property  in  good  order  throughout  the  term  of  tho 
grant. 

The  Chairman:  The  gentleman  from  Richmond  (Mr.  Meredith)  has  offered  tho 
amendment,  which  the  Secretary  will  read. 

After  the  word  "years,"  in  line  15,  insert  "no  franchise  or  privilege  shall  be  granted 
by  any  city  or  tov/n  for  the  use  of  its  highways,  either  above,  along,  or  under  the  eame, 
except  by  an  ordinance  or  joint  resolution  passed  by  a  recorded  vote  of  two-thirds  of  all 
the  members  elected  to  each  branch  of  the  council  of  said  city;  and,  in  case  of  the  veto 
by  the  mayor  of  such  ordinance  or  joint  resolution,  it  shall  require  a  recorded  vote  of 
three-fourths  of  all  the  members  elected  to  each  branch  of  the  council  to  pass  the  same 
over  such  veto,  m  the  manner  provided  in  Section  9." 

Mr.  Brooke:  Mr.  Chairman,  I  desire  to  say  briefly — I  do  not  propose  to  make  any 
speech  at  all — that  since  this  article  has  been  drafted  it  has  been  brought  to  my  atten- 
tion that  there  is  a  possible  construction  of  the  language  which  would  require  that  no 
franchise  should  be  granted  in  the  streets,  etc.,  of  the  city  without  a  three-fourths  vote. 
I  simply  wanted  to  give  notice  that  that  is  not  the  construction  intended  by  the  com- 
mittee. I  do  not  now  offer  an  amendment  so  as  to  make  the  construction  placed  upon 
it  by  the  committee  clear,  because  I  think  the  whole  question  will  probably  be  involved 
in  the  amendment  which  is  to  be  offered  by  the  gentleman  from  Richmond. 

Mr.  Meredith:  Mr.  Chairman,  the  amendment  I  have  offered  I  believe  to  be  neces- 
sary, because  I  do  not  think  the  language  of  the  committee  justifies  the  construction 
that  it  requires  anything  more  than  a  majority  vote  to  give  away  the  franchises  of  the 
municipality,  and  I  desire  to  have  some  express  language,  if  I  can  get  the  approval  of 
this  body,  that  the  franchises  of  the  cities  shall  not  be  given  away  by  a  majority  vote. 

In  the  early  days  of  the  Convention  I  offered  a  resolution,  which  was  referred  to 
the  Committee  on  Cities  and  Towns,  providing  that  no  public  franchise  should  be  dis- 
posed of  by  the  city  council  except  to  the  highest  bidder.  That  was  along  the  line  of 
the  Kentucky  Constitution.  The  committee  did  not  see  fit  to  incorporate  that  in  its 
report,  but  as  it  has  seen  fit  to  require  a  three-fourths  vote  for  the  sale  of  any  of  the 
property  of  a  municipality,  such  as  its  parks  and  wharf  property  and  landings,  the 
sale  of  streets,  and  matters  of  that  kind,  by  a  three-fourths  vote,  I  desire  to  have  some 
protection  for  properties  of  the  cities  which  are  just  as  valuable,  and  which  are  dis- 
posed of  with  far  greater  ease  and  with  far  less  consideration.  I  refer  to  the  public 
franchises  of  municipalities.  We  must  all  recognize  that  they  are  getting  to  be  ex- 
tremely valuable;  we  must  all  recognize  that  they  are  getting  to  be  extremely  numer- 
ous. We  are  having  electric  power  plants,  light  plants;  we  are  having  street  car 
companies;  we  are  having  other  companies  of  that  nature.  We  all  must  recognize, 
if  we  know  anything  about  it,  that  to  get  from  the  municipal  council  those  very  valu- 
able properties  of  the  city — for  they  are  properties — every  conceivable  effort  is  made, 
honest  and  dishonest,  to  get  them,  and  it  is  just  a  question  of  the  integrity  of  the 
council  as  to  whether  the  municipality  will  receive  sufficient  protection.  If  they  are 
in  the  hands  of  a  bad  set  of  men,  these  valuable  franchises  are  given  away  without 
even  reasonable  restrictions,  without  a  proper  system  of  taxation  or  comnensation  to 
the  city  for  the  use  of  its  highways,  sometimes  for  thirty  years,  sometimes  for  fifty 
years,  and  I  believe  in  some  of  the  cities  of  the  Commonwealth  there  is  no  restriction 
as  to  the  period  of  time. 

I  have  been  told  that  in  one  of  the  cities  of  the  Commonwealth  the  street  car  com- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTION  OF  VIEGIXIA. 


1993 


panies  occupy  its  streets,  and  do  not  have  any  burden  whatever  put  upon  them  as  to 
the  repair  of  the  streets;  and  yet  when  the  streets  are  paved,  either  with  asphalt  or 
granite,  the  abutting  property  owner  is  taxed  one-half  of  the  cost  to  the  middle  of  the 
street. 

In  this  city,  fortunately,  we  have  better  protection  than  that.  We  do  put  some 
reasonable  restrictions  upon  them  and  require  reasonable  compensation;  but,  Mr. 
Chairman,  it  is  to  the  evil  of  corruption  and  the  evil  of  the  lease  of  property  to  which 
I  ask  the  attention  of  the  committee,  in  order  that  that  evil  may  be  prevented  in  the 
future.  We  all  know — and  I  do  not  hesitate  to  speak  of  my  own  city — that  in  the 
last  few  years  very  valuable  franchises  have  been  given  away  without  direct  compen- 
sation at  the  time  for  the  value  of  the  franchises.  There  was  a  contest  in  this  city 
between  railroad  companies,  in  which  one  railroad  company  asked  for  a  very  valuable 
franchise,  involving  somewhere  near  fifty  or  sixty  miles  of  railway,  and  the  opposing 
company  made  an  offer  of  a  start  bid  of  $100,000  if  it  was  put  up  at  public  auction; 
and  we  were  unable  to  get  the  council  to  do  it. 

You  gentlemen  recollect  that  a  few  months  ago,  perhaps  within  the  last  year, 
the  Legislature  of  Pennsylvania,  in  conjunction  with  the  city  council  of  Philadelphia, 
gave  away  franchises  in  the  city  of  Philadelphia,  and  after  it  became  known  to  the 
public  a  rich  man  in  Philadelphia  came  forward  and  said  he  would  give  $2,000,000  for 
the  franchise,  and  to  the  man  who  had  it  he  would  give  $500,000.  That  is  the  history 
of  such  things  in  many  of  the  cities  of  this  country,  the  value  of  the  franchise,  of 
course,  depending  upon  the  size  of  the  city. 

It  is  proposed  that  we  shall  protect  the  water-works,  the  wharves,  the  landings  of 
the  wharves,  and  similar  valuable  property,  by  providing  that  a  majority  vote  shall 
be  required  to  pass  legislation  in  regard  to  it.  I  do  not  propose  to  go  over  the  line  of 
thought  I  offered  to  you  n  yesterday  when  I  asked  for  protection  as  to  the  city  finances, 
because  I  hope  some  of  you  remember  some  of  the  things  I  stated;  but  I  do  call  your 
attention  to  the  fact  that  this  matter  is  perhaps  a  greater  evil  than  the  matter  of 
spending  the  finances  of  the  city.  The  finances  are  frequently  appropriated  from  the 
current  revenues,  but  the  franchises  are  the  capital  of  the  city,  and  when  they  are 
once  gone  they  are  gone  for  years.  If  we  allow  the  municipalities  to  dispose  of  these 
franchises  in  so  simple  a  way  as  by  a  majority  vote,  we  are  acting,  in  the  first"  place, 
inconsistent  with  the  report  of  the  committee,  which  is  a  wise  one,  in  regard  to  the 
question  of  streets  and  docks  and  other  property  of  that  character,  and  we  are  also 
acting  most  unwisely  in  not  being  guided  by  the  lamp  of  experience.  We  know  the  out- 
cry that  has  come  up  from  all  over  this  country  that  these  municipal  franchises  shall 
not  be  disposed  of  except  in  consideration  of  a  valuable  return  to  the  people  who  own 
them,'  and  yet  we  know,  on  the  other  hand,  that  day  after  day  they  are  being  disposed 
of  by  the  different  municipalities  of  this  country  without  an  adequate  return. 

Now,  gentlemen,  if  we  propose  to  put  into  this  Constitution  such  restrictions  as 
will  govern  municipalities  to  a  certain  extent — I  am  not  favoring  any  extreme  law 
upon  the  subject — but  if  we  propose  to  recognize  that  the  growth  of  municipalities  is 
such  that  we  ought  to  be  more  careful  of  the  constitutional  limitation  in  regard  to  them 
than  we  are  as  to  county  governments,  surely  we  ought  to  take  some  means  by  which 
the  people  of  the  municipalities  can  be  protected  as  to  their  property,  I  urge  that  the 
Convention  has  a  chance  now  to  protect  the  municipalities  as  to  the  disposal  of  their 
franchises,  and  that  some  step  should  be  taken  by  which  they  shall  not  be  disposed  of 
except  under  such  restrictions  as  are  reasonable. 

I  therefore  ask,  in  behalf  of  the  cities  of  the  Commonwealth,  those  that  now  exist 
to  such  a  size  as  to  have  these  utilities,  those  that  are  growing  and  those  we  hope  will 
grow,  that  you  put  into  the  Constitution  a  restriction  upon  their  legislative  bodies. 
It  is  idle  to  tell  us  to  come  to  the  Legislature  for  protection.  We  cannot  get  it  if  we 
have  corruption  amongst  us.  The  efforts  we  make  before  the  Legislature  to  get  these 
126 — Const.  Deb. 


1994  DEBATES  OF  THE  CONSTITUTIOI^AL  CONVENTION^  OF  VIRGINIA. 

restrictions  imposed  are  defeated  by  the  corrupt  elements  which  defeat  us  in  our 
municipalities. 

In  conclusion,  I  wish  to  say  that  I  am  not  asking  of  the  Convention  as  to  the 
valuable  property.  I  have  referred  to  the  restrictions  which  the  committee  has  seen  fit 
to  impose  as  to  public  wharves  and  other  places  of  that  character.  The  report  of  the 
committee  requires  that  there  shall  be  a  three-fourths  vote  to  alienate  any  property 
of  that  kind.  I  simply  ask  that  we  may  have  a  two-thirds  vote  to  protect  us  as  to  this 
property.  I  recognize  the  distinction  between  a  sale  and  a  mere  franchise  for  a  term 
of  years;  but  I  say  the  difference  is  not  sufficient  to  justify  us  in  refusing  to  put  into 
the  Constitution  some  protection  in  regard  to  the  disposal  of  these  franchises. 

Mr.  Chairman,  it  is  idle  to  say  that  these  councils  will  be  tied  up  by  adverse  inter- 
ests. I  respectfully  submit  it  is  far  better  that  we  should  trust  to  the  intelligence  of 
a  business  community  like  a  municipality  than  that  we  should  trust  to  the  honesty 
of  all  the  councils,  tempted  as  they  frequently  are  by  large  amounts  of  money,  tempted 
as  they  are  sometimes  by  popular  outcry  that  efforts  shall  not  be  made  to  block  im- 
provements, as  they  are  called,  because  more  danger  and  trouble,  more  disasters  come 
to  the  Commonwealth  by  raising  that  cry  than  by  putting  reasonable  restrictions  upon 
them.  I  hope  the  committee  will  not  feel  that  when  a  statement  of  that  kind  is  made 
it  goes  to  prove  an  attempt  to  block  improvements,  but  that  the  desire  simply  is  that 
improvements  shall  be  upon  the  broad  lines  of  reasonable  restrictions.  We  feel  that 
no  municipality  is  going  to  block  improvements  in  a  spirit  of  obstinacy;  and  even  if 
it  does  do  it  temporarily,  we  had  better  have  that  block  than  the  property  should  be 
disposed  of  for  a  number  of  years  or  should  be  given  away  for  nothing. 

Mr.  Robertson:  Mr.  Chairman,  I  dislike  very  much  to  appear  so  often  on  this 
floor  in  regard  to  questions  coming  up  in  reference  to  this  report,  but  as  the  city 
which  I  represent  in  part  is  deeply  interested  in  all  these  questions,  I  frequently  feel 
it  my  duty  to  say  something,  whether  it  will  have  any  weight  with  this  body  or  not. 

I  totally  differ  from  my  friend  from  Richmond  (Mr.  Meredith)  in  regard  to  this 
matter.  I  think  if  there  be  any  evil  in  the  world,  it  is  requiring  a  large  majority  in 
any  legislative  body  in  order  to  get  through  what  they  want  to  do.  It  seems  to  me 
that  the  lobbyist  gets  in  his  work  with  reference  to  cases  of  that  kind  oftener  than 
he  does  in  anything  else.  The  chief  duty  of  the  lobbyist,  who  hangs  around  all  legis- 
lative bodies,  in  my  opinion,  is  not  so  much  to  get  through  legislation  as  to  prevent 
legislation;  and  it  is  a  great  deal  easier  to  do  that  under  the  plan  suggested  by  the 
gentleman  from  Richmond  than  it  could  possibly  be  if  we  leave  this  thing,  as  we 
ought  to  do,  to  the  majority. 

The  whole  argument,  it  seems  to  me,  of  the  gentleman  from  Richmond  is  based 
on  a  distrust  that  has  crept  into  his  mind  on  account  of  his  long  connection  with  the 
affairs  of  the  city  of  Richmond,  and  his  knowledge  of  what  is  taking  place  here.  His 
argument,  I  respectfully  submit,  is  not  a  proper  deduction  from  a  sufficient  number  of 
facts.  I  think  if  the  gentleman  would  give  this  matter  a  little  wider  range  in  his  own 
mind,  he  would  not  come  to  such  positive  conclusions  about  it.  But  I  submit  that 
because  he  has  found  difficulties  of  that  kind  in  Richmond  he  ought  not  to  want  to  put 
into  the  Constitution  provisions  which  will  bind  every  city  in  the  Commonwealth. 

Mr.  Meredith:  I  simply  want  to  ask  you,  do  you  mean  to  tell  this  Convention 
that  your  own  reading  does  not  inform  you  there  has  been  great  corruption  all  over 
Ihe  country  in  regard  to  the  granting  of  franchises? 

Mr.  Robertson:  I  am  perfectly  willing  to  admit  that;  but  I  do  not  think  your 
plan  will  prevent  that  corruption.  I  am  arguing  that  if  there  be  corruption  now, 
there  will  be  more  of  it  if  your  plan  is  adopted,  sir.  What  the  people  suffer  from  in 
this  Commonwealth  is  that  some  corporation  gets  in  and  gets  its  clutches  upon  some 
^community,  and  then  the  hands  of  the  city  council  are  tied,  so  that  there  can  be  no 
.competition  with  the  corporation  already  in  there.    In  every  city  in  the  Commonwealth 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEiSTTION  OF  VIEGINIA.  1995 

th^re  are  already  parties  that  have  valuable  franchises,  probably  granted,  as  my  friend 
saySj  to  some  extent,  certainly  carelessly,  and  probably  in  some  cases,  although  I  do 
not  know  of  any  such,  by  corrupt  methods;  but  are  we  to  say  these  people  cannot,  by  a 
majority  vote,  allow  some  other  corporation  to  come  in  there  and  compete  with  the  old 
corporation  that  got  in  there  improperly? 

That  seems  to  me  a  very  much  greater  danger  than  the  danger  my  friend  points 
out,  because  it  is  a  great  deal  easier  to  control  the  few  men  who  would  prevent  the 
two-thirds  majority  than  it  is  to  control  a  majority  of  the  council.  I  would  not  want 
anything  better  if  I  were  a  lobbyist  for  a  corporation  than  to  take  such  a  provision 
if  my  corporation  were  already  in,  for  I  would  have  very  little  difficulty,  in  my  opin- 
ion, if  these  bodies  are  as  corrupt  as  my  friend  seems  to  think,  in  keeping  any  other 
corporation  from  getting  in. 

On  motion  of  Mr.  Smith,  the  committee  rose  and  the  President  resumed  the  chair. 

The  President:  Gentlemen,  under  the  order  heretofore  adopted^  the  Convention 
will  now  proceed  to  the  consideration  of  the  motion  to  reconsider  the  vote  by  Vv^hich 
the  amendment  offered  by  the  gentleman  from  Albemarle  (Mr.  Boaz)  to  the  report 
of  the  Committee  on  Education  and  Public  Instruction  making  provision  for  the  main- 
tenance of  the  University  of  Virginia  was  rejected.  The  question  is  on  the  motion  to 
reconsider. 

The  Secretary  will  read  the  amendment. 

The  General  Assembly  shall  provide  for  the  support  of  the  University  of  Virginia, 
by  an  appropriation  each  year  out  of  the  general  revenues  of  the  State  of  a  sum  of 
money  amounting  to  not  less  than  one-ninth  of  the  sum  arising  from  the  tax  on  property 
applicable  to  public  free  schools  for  such  year:  Provided,  the  General  Assembly  may, 
in  any  year,  limit  the  sum  of  money  to  be  appropriated  to  $50,000. 

The  President:  The  question  is  on  the  motion  to  reconsider  the  vote  by  which 
the  amendment  was  rejected. 

The  following  pairs  were  announced:  Mr.  Watson  with  Mr.  Dunaway;  Mr.  Pol- 
lard with  Mr.  James  W.  Gordon;  Mr.  Brown  with  Mr.  Manly  H.  Barnes;  Mr.  Allen 
with  Mr.  Cameron;  Mr.  Gamett  with  Mr.  Vincent;  Mr.  Turnbull  with  Mr.  Marshall; 
Mr.  Thornton  with  Mr.  Mundy;  Mr.  Kendall  with  Mr.  Thomas  L.  Moore;  Mr.  Bristow 
with  Mr.  Crismond;  Mr.  Portlock  with  Mr.  Thom;  Mr.  Daniel  with  Mr.  Pettit;  Mr. 
Lawson  with  Mr.  C.  J.  Campbell.  The  first  named  gentleman,  in  each  instance,  would 
have  voted  in  the  affirmative. 

The  question  having  been  taken,  the  result  was  announced — ayes,  33;  noes,  39,  as 
f  ollov^rs : 

Ayes — Messrs.  Ayers,  Barbour,  Thomas  H.  Barnes,  Boaz,  Bouldin,  Braxton,  P.  W. 
Campbell,  Carter,  Epes,  Glass,  Green,  Gregory,  Harrison,  Hatton,  Hunton,  Ingram, 
Claggett  B.  Jones,  Lindsay,  Lovell,  Meredith,  R.  Walton  Moore,  Quarles,  Rives,  Robert- 
son, Stebbins,  Stuart,  Waddill,  Walker,  Walter  Wescott,  Willis,  Wise  and  Wysor — 33. 

Noes — Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Barham,  Brooke,  Chapman, 
Davis,  Earman,  Eggleston,  Fairfax,  Fletcher,  Flood,  Gilmore,  Gillespie,  R.  L.  Gordon, 
Gwyn,  Hamilton,  Hancock,  Hardy,  Hooker,  Hubard,  G.  W.  Jones,  Keezell,  Lincoln, 
Mcllwaine,  Miller,  Moncure,  O'Flaherty,  Orr,  Parks,  Pedigo,  Phillips,  Richmond,  Smith, 
Summers,  Tarry  Withers,  Woodhouse,  Yancey  and  the  President — 39. 

The  motion  to  reconsider  was  rejected. 

On  motion  of  Mr.  Brooke,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  repoit  of  the  Committee  on  the  Organization 
and  Government  of  Cities  and  Towns,  Mr.  Withers  in  the  chair. 

The  Chairman:  The  pending  question  is  on  the  amendment  of  the  gentleman 
from  Richmond  (Mr.  Meredith)  to  Section  11  of  the  report. 

Mr,  Barbour:  Mr.  Chairman,  I  dislike  very  much  to  have  to  differ  from  the  gen- 
tleman from  Richmond  in  reference  to  the  amen  Iment  which  has  been  offered  by  him. 


1996  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

I  know  he  is  deeply  interested  in  the  welfare  of  the  cities,  and,  from  his  large  expe- 
rience in  such  matters,  his  judgment  is  entitled  to  great  weight.  But  it  does  seem  to 
me  that,  from  his  experience  in  the  city  of  Richmond,  he  is  permitting  his  fears  to 
get  the  better  of  his  judgment. 

The  gentleman  says  that  because  we  provide  that  it  shall  require  a  three-fourths 
vote  to  alienate  a  certain  class  of  property,  therefore  we  should  require  a  two-thirds 
vote  in  order  that  that  property  may  be  leased.  That  is  what  in  effect  is  the  distinc- 
tion between  the  alienation  and  granting  of  a  franchise,  as  we  limit  it  here  to  thirty 
years. 

You  cannot,  by  legislation,  make  people  honest.  If  the  people  of  the  city  of 
Richmond,  or  of  any  other  city,  are  incapable  of  self-government,  there  is  no  way  that 
we  can  make  them  so.  If  they  are  not  capable  of  governing  themselves,  they  have  no 
right  to  make  application  to  the  Legislature  for  a  charter  to  do  it.  Certainly  they 
have  no  right  to  make  application  to  the  Legislature  to  grant  them  a  charter  which 
will  permit  a  minority  of  a  city  to  control  it.  That  is,  in  effect,  what  his  amendment 
will  amount  to. 

I  am  not  one  of  those,  Mr.  Chairman,  who  think  that  the  vicious  elements  in 
every  community,  or  in  any  community,  are  in  the  majority.  I  believe  that  they  are 
in  a  minority.  All  that  we  can  do  is  to  arouse  public  sentiment  to  the  importance  of 
action,  and  then  by  these  safeguards  save  them  from  the  results  of  hasty  legislation. 
That  is  as  far  as  we  can  go  safely,  and  it  is  what  the  committee  has  done. 

It  has  examined  into  this  matter  with  great  care  and  deliberation,  and  it  has  by 
a  system  of  checks  and  balances  sought  to  protect  the  cities  themselves  against  the 
results  of  hasty  legislation.  They  have  even  guarded  legislation  by  means  of  the  veto 
power,  lodged  in  the  mayor.  It  seems  to  me  that  the  gentleman  from  Richmond  ac- 
complishes the  very  purpose  that  he  desires  to  defeat  when  he  absolutely  puts  it  In 
the  power  of  one-third  of  a  city  council  to  prevent  the  granting  of  a  franchise. 

As  has  been  pointed  out  by  the  distinguished  gentleman  from  Roanoke  (Mr.  Rob- 
ertson), it  absolutely  puts  these  franchises  in  the  hands  of  a  minority.  One  corpora- 
tion already  has  a  monopoly,  for  instance,  of  the  street-car  business  in  a  city.  The 
citizens  want  competition,  and  still,  all  the  first  company  has  to  do  in  order  to  prevent 
competition  and  to  maintain  its  monopoly  is  to  be  able  to  control  one-third  of  the  city 
council. 

Now,  the  reasons  which  impelled  the  committee  to  require  this  three-fourths  vote 
to  alienate  property  were  very  different  from  those  which  impelled  it  to  permit  a 
majority  vote  to  grant  a  franchise.  This  provision  requiring  a  three-fourths  vote  to 
alienate  only  applies  to  water-fronts,  wharf  property,  public  landings,  wharves,  docks, 
streets,  avenues,  parks,  bridges,  and  all  other  public  places — to  those  places  in  the 
city  which  are  dedicated  to  the  public  use  and  for  the  preservation  of  the  public 
health.  They  should  not  be  alienated  unless  there  is  an  overwhelming  publfc  de- 
mand that  they  should  be.  But  the  cities  can  grant  franchises  in  those  properties, 
for  a  limited  time.  To  the  representatives  of  the  people,  and  in  order  to  protect  pos- 
terity against  ill-advised  acts  in  this  resnect,  we  say,  "Notwithstanding  the  fact  that 
you  may  grant  these  franchises,  you  shall  not  grant  them  for  more  than  thirty  years; 
so  that  if  you  make  an  ill-advised  bargain  you  will  suffer  for  it,  but  posterity  shall 
not  suffer;  and,  at  the  end  of  thirty  years,  their  rights  are  restored  to  them  just  as 
they  existed  before  you  made  this  grant." 

The  committee  have  considered  very  maturely  all  these  matters  in  this  connection, 
and  have  made  this  recommendation  by  unanimous  vote,  and  I  most  earnestly  hope 
that  the  article  will  be  permitted  to  remain  in  the  condition  in  which  it  'has  been  re- 
ported to  the  Convention. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  we  are  commanded  in  the  Scriptures  to 
be  temperate  in  all  things,  and  the  Committee  on  the  Organization  and  Government 
of  Cities  and  Towns  has  attempted  to  carry  out  that  injunction. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIKGIXIA.  1997 

We  realize,  on  the  one  side,  that  there  were  certain  checks  necessary  to  be  im- 
posed in  the  Constitution  upon  extravagant  and  ill-considered  legislation,  which  is  very 
often  carried  through  in  cities.  We  realized,  on  the  other  side,  that  it  was  possible 
to  make  those  restrictions  so  rigid  as  to  defeat  the  principle  of  local  self-government 
in  those  communities;  and  I  think  a  careful  consideration  of  this  report  will  show 
that  the  committee  has  steered  a  mean  course,  and  has  brought  in  a  report  here  which 
will  avoid  either  one  of  those  difficulties. 

Y/e  have  provided,  in  the  first  place,  Mr.  Chairman,  that  we  shall  have  a  double- 
body  council;  that  we  shall  have  a  veto  power  in  the  mayor,  and  a  two-thirds  vote 
of  all  the  members  elected  to  both  of  those  bodies  in  order  to  override  that  veto;  and 
we  have  gone  further  and  provided  that  the  election  of  mayor  and  council  of  the  cities 
and  towns  shall  be  at  a  different  time  from  all  other  general  elections,  so  as  to  con- 
centrate the  attention  and  the  interest  of  the  people  upon  these  elections  and  upon 
these  officers,  with  a  view  to  securing  a  better  representation  in  the  councils  and  a 
better  representation  in  the  mayoralty. 

Now,  I  believe  that  with  these  restrictions  and  limitations  thrown  around  our 
municipal  government  we  have  gone  as  far  as  it  is  wise  and  safe  for  us  to  go  in  this 
regard.  Therefore,  I  trust  we  will  sustain  the  report  of  the  committee  and  not  adopt 
the  amendment  offered  by  the  gentleman  from  Richmond,  although  I  know  how  deeply 
lie  feels  on  this  question,  and  what  good  reason  he  has  had  to  feel  deeply  upon  it; 
but  I  believe  we  should  not  attempt  to  tie  the  hands  of  our  local  legislatures  too  rigidly 
in  regard  to  the  granting  of  franchises,  or  in  regard  to  any  other  matter  that  may 
come  before  them. 

Mr.  Hatton:  Mr.  Chairman,  I  rise  to  offer  just  a  few  words  of  protest  against 
the  amendment  offered  by  the  gentleman  from  the  city  of  Richmond. 

I  have  great  respect  for  the  views  of  the  gentleman  from  the  city  of  Richmond  in 
most  matters  of  municipal  government.  I  feel  that  his  experience  in  such  matters 
is  entitled  to  great  respect,  and  I  have  no  doubt  that  his  object  in  offering  this  amend- 
ment is  to  protect  the  cities  of  this  Commonwealth  against  the  importunities  of  cor- 
porations who  seek  franchises  in  those  cities.  But  I  believe,  Mr.  Chairman,  that  the 
result  will  be  just  the  reverse,  and  I  believe  that  the  amendment,  if  adopted,  instead 
of  protecting  these  cities,  will  tend  more  to  protect  these  corporations  which  now  ex- 
ercise and  control  the  franchises  in  these  cities  against  proper  and  just  competition. 

In  almost  all  the  cities  of  this  Commonwealth  we  now  have  street-car  lines,  tele- 
graph and  telephone  lines,  gas  and  water  companies,  which  exercise  privileges  in  the 
streets  and  other  public  places  of  those  cities;  and  many  of  these  cities,  in  that  respect, 
have  no  competition  at  present,  and  if  we  require  two-thirds  of  the  members  elected 
to  the  city  council,  in  order  to  give  another  corporation  the  right  to  enter  that  city, 
what  will  be  the  result?  Why,  towards  these  other  corporations  seeking  to  enter  there, 
it  will  be  the  policy,  and,  no  doubt,  the  practice,  of  the  corporations  who  now  exercise 
franchises  in  those  cities  to  endeavor  to  get  simply  a  one-third  vote  of  those  councils 
in  order  to  keep  out  that  competition,  and  kill  it.  And  there  is  wherein  lies  the 
defect  of  this  amendment.  I  hope  the  gentleman  from  the  city  of  Richmond  will  be 
able  to  look  at  this  thing  with  both  eyes. 

Mr.  Meredith:  I  desire  to  call  the  attention  of  the  gentleman  from  Portsmouth 
to  the  fact  that  about  four  of  you  gentleman  have  followed  me,  and,  although  each 
one  of  you  is  some  ten  or  fifteen  years  younger  than  I  am,  you  describe  me  as  being 
led  away  by  hot  blood  and  ardor. 

Mr.  Hatton:  I  have  no  doubt  his  blood  is  very  hot,  and  that  he  is  very  ardent, 
and  sometimes  very  strenuous  (laughter) ;  but  I  do  think  there  are  two  views  of  this 
proposition,  and  I  trust  that  the  gentleman  from  Richmond,  as  well  as  the  members  of 
this  Convention,  will  be  able  to  see  both  aspects  of  the  proposition. 


1998  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

The  Chairman:   The  question  is  on  the  amendment  offered  by  the  gentleman  from 
the  city  of  Richmond  (Mr.  Meredith)  to  Section  11. 
The  amendment  was  rejected. 

Mr.  Meredith:  I  wish  to  call  to  the  attention  of  the  chairman  and  one  or  two  mem- 
bers of  the  committee,  if  it  meets  with  the  approval  of  the  Committee  of  the  Whole, 
to  what  I  desire  to  be  added.  After  the  word  "places,"  in  line  4,  add  the  words,  "and 
its  gas,  water,  and  electric  works."  After  the  word  "cities,"  in  line  7,  add  the  words, 
"and  under  such  other  restrictions  as  may  be  imposed  by  law."  After  the  word  "coun- 
cil," in  line  10,  add  the  words,  "in  the  manner  provided  in  Section  9,"  as  to  the  method 
of  veto.   I  understand  there  is  no  objection  from  the  chairman  as  to  these  amendments. 

The  amendments  were  agreed  to. 

Mr.  Meredith:  If  the  matter  is  still  before  the  committee,  I  desire  to  call  the  at- 
tention of  the  chairman  of  the  committee  to  the  expression  in  lines  24,  25,  and  26.  It 
is  provided  there  that,  after  the  expiration  of  this  franchise,  the  State  may  acquire 
the  property,  and  this  provides  that  "any  such  plant  and  property  acquired  by  a  city 
or  town  may  be  maintained,  controlled  or  operated  by  such  city." 

I  suggest  inserting  after  the  word  "operated,"  in  line  26,  the  words,  "sold  or 
leased." 

Mr.  Brooke:    I  accept  that  amendment. 

Mr.  Summers:  Mr.  Chairman,  this  question  will  probably  go  back  before  the  com- 
mittee, and  I  desire  to  state  that  at  the  proper  time  I  will  move,  at  the  instance  of 
some  of  my  constituents,  the  substitution  of  the  words  "twenty-five"  in  place  of  "thirty"" 
before  "years,"  in  line  15,  I  think,  individually,  it  should  be  for  twenty  years,  but  I 
was  asked  to  make  the  amendment  I  have  suggested,  and  at  the  proper  time  we  will 
hear  the  argument  on  it. 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Wash- 
ington (Mr.  Summers),  to  substitute  the  words  "twenty-five"  for  the  word  "thirty," 
in  line  15. 

The  amendment  was  rejected. 

iSection  12  was  read  and  adopted. 

Section  13,  relating  to  the  right  of  cities  and  towns  to  issue  bonds,  was  then  read. 

The  Chairman:    Are  there  any  amendments  proposed  to  Section  13? 

Mr.  Summers:  I  desire  to  amend  that  section  by  substituting  in  line  4  the  word 
"ten"  for  the  word  "eighteen,"  so  that  it  shall  read,  "no  city  or  town  shall  issue  any 
bonds  or  other  interest-bearing  obligations  for  any  purpose  or  in  any  manner  to  an 
amount  which,  including  existing  indebtedness,  shall,  at  any  time,  exceed  ten  per 
centum  of  the  assessed  valuation  of  the  real  estate  in  said  city,  subject  to  taxation," 
etc. 

Mr.  Chairman,  this  is  a  question  that  elicited  a  great  deal  of  discussion  in  the 
committee.  In  our  section  of  the  State,  where  the  towns  are  solvent  and  the  people  pay 
their  indebtedness,  they  are  desirous  of  having  it  fixed  at  ten  per  cent.  Being  solvent, 
they  want  to  remain  solvent.  Therefore,  that  their  properties  may  not  be  unrighteously 
encumbered  and  confiscated,  I  hope  the  committee  will  approve  of  the  amendment. 

Mr.  Marshall:  I  desire  to  offer  an  amendment  to  the  amendment.  My  idea  waB 
that  the  debt  limit  should  be  fixed  at  fifteen  per  cent.  I  move  to  amend  the  amendment 
by  inserting  "fifteen"  instead  of  "ten." 

The  amendment  to  the  amendment  was  rejected. 

The  Chairman:    The  question  recurs  on  the  amendment  of  the  gentleman  from 
Washington,  to  substitute  the  word  "ten"  for  the  word  "eighteen,"  in  line  4. 
The  amendment  was  rejected. 
Section  14  was  read  and  adopted. 

An  independent  section  offered  by  Mr.  Harrison  was  passed  by  temporarily. 

Mr.  Smith:    I  desire  to  go  back  to  Section  6,  line  10,  and  move  to  amend  by 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTTOX  OF  A'lEGIXLl.  1999 

striking  out  the  two  words  constituting  the  last  of  that  line,  "police  and."  Under 
the  provisions  of  the  present  Constitution,  the  mayor,  as  the  head  of  the  municipal 
organization,  is  only  endowed  with  the  authority  to  suspend  or  remove  city  officers. 
By  the  introduction  of  these  tw^o  words  in  the  present  article  authority^  Is  conferred 
on  the  mayor  to  remove  a  State  officer.  Under  the  adjudication  of  the  State  a  police- 
man is  a  State  officer.  Many  of  the  cities  of  the  Commonwealth  desire  to  divorce  the 
jurisdiction  and  power  of  the  mayor  over  their  police  forces,  and  that  the  authority  to 
manage  and  control  the  police  force  shall  be  conferred  by  law  upon  a  police  board. 

Gentleman  of  the  committee,  it  seems  to  me  there  is  a  thread  running  through 
the  warp  and  woof  of  nearly  every  measure  of  the  proposed  Constitution  in  the  nature 
of  centralization  or  concentration  of  power  in  the  hands  of  a  few.  Those  who  have 
lived  in  the  cities  have  experienced,  I  think,  the  bad  and  "ill  effects  which  arise  from  the 
mayor  having  the  control  of  the  police  force.  It  becomes  a  potential  factor  if  in  his 
hands  it  is  used  and  directed  for  a  political  purpose.  For  these  reasons,  and  believing 
that  the  provision  proposed  by  the  committee  will  not  be  to  the  advantage  of  the  city 
communities,  I  move  that  the  words  I  have  heretofore  designated  be  stricken  from  the 
report. 

Mr.  Harrison:  Mr.  Chairman.  I  think  the  amendment  I  have  offered  as  Section 
15  will  probably  cover  the  point  the  gentleman  from  Alexandria  (Mr.  Smith)  has  made. 
It  does  seem  to  me  to  be  a  very  peculiar  thing  that  this  Constitutional  Convention 
should  adopt  a  fixed  charter  here  for  every  city  in  the  Commonwealth,  without  any 
reference  to  the  wishes  or  the  needs  of  the  community  for  w^hich  this  charter  is  pre- 
pared. It  makes  no  difference  whether  it  is  a  city  of  100,000  inhabitants,  which  re- 
quires certain  regulations  and  certain  methods  of  government,  or  whether  It  is  a  little 
town  of  5,000  inhabitants.  Here  is  a  charter  which  has  been  made  to  suit  every  commu- 
nity, large  or  small,  in  the  State,  whether  it  is  adapted  to  the  needs  of  that  city  or 
community  or  not. 

I  always  understood  that  one  of  the  great  advantages  of  having  a  municipal  gov- 
ernment is  that  you  can  have  a  special  charter  for  that  particular  community,  a  gov- 
ernment that  is  suited  to  the  local  circumstances  of  that  community;  but  if  this  article 
is  adopted,  you  will  put  upon  every  city  in  the  Commonwealth  a  city  government  such 
as  may  be  suited  to  some  and  absolutely  unsuited  to  others. 

In  the  amendment  I  have  offered  I  have  endeavored  to  secure  to  every  city  the 
right  to  have  a  special  charter  according  to  the  needs  and  the  wishes  of  the  community 
for  which  that  charter  is  proposed,  and  I  have  asked  that  that  may  be  passed  by,  in 
deference  to  the  indisposition  of  the  chairman  of  the  committee.  I  think  the  question 
that  the  gentleman  from  Alexandria  (Mr.  Smith)  has  raised  ought  to  be  considered 
along  with  that  amendment;  and  with  that  view  I  move  that  this  amendment  also  be 
passed  by. 

Mr.  Smith:  I  will  say  to  the  gentleman  from  Frederick  that  if  he  will  guarantee 
that  his  section  is  going  to  become  a  part  of  this  article,  I  have  do  objection  to  the 
course  he  suggests. 

Mr.  Harrison:  I  have  been  unable  to  guarantee  anything  so  far  as  the  Convention 
is  concerned.  I  can  generally  guarantee  that  what  I  suggest  here  is  going  to  be  voted 
down.  (Laughter.) 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Alexandria. 

Mr.  Barbour:  Mr.  Chairman,  I  hope  the  Committee  of  the  "Whole  will  retain  this 
section  in  the  shape  in  which  it  has  been  unanimously  reported  by  the  committee. 
While  police  officers  are  technically  State  officers,  they  are,  as  we  all  know,  really 
local  officers.  The  mayor  of  the  city  is  charged  with  the  preservation  of  the  peace  of 
the  city  and  with  the  execution  of  its  law^s,  and  it  is  absolutely  necessary  that  he  shall 
have  charge  of  the  police  force. 


2000  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

In  the  very  city  represented  by  my  friend  from  Alexanlria  there  has  actually  been 
continual  turmoil  and  dispute  between  the  police  board  and  the  mayor  as  to  who  has 
the  right  to  direct  the  policemen  as  to  what  they  shall  do. 

It  is  a  condition  of  affairs  that  should  not  be  allowed  to  exist  in  any  city;  and 
there  is  nothing  that  will  go  so  far  to  make  the  police  force  obey  the  orders  of  the 
mayor  as  his  right  to  suspend  or  his  right  to  remove.  The  right  to  remove  is  a  great 
power,  but  the  committee  has  attempted  to  prevent  the  arbitrary  exercise  of  that 
power  by  giving  to  every  officer  who  is  removed  the  absolute  right  of  appeal  to  the 
judge  of  the  city  court,  in  order  that  he  may  have  the  matter  passed  on  finally. 

The  gentleman  from  Alexandria  says  there  is  a  constant  undercurrent  through 
the  work  of  the  Convention  having  a  tendency  to  centralize  power  and  take  it  away 
from  the  people.  Why,  Mr.  Chairman,  the  direct  effect  of  this  will  be  to  decentralize 
power.  Under  the  system  of  appointing  police  boards  to  control  the  police  force  of  the 
cities  you  centralize  the  power  and  the  control  of  the  police  in  the  Legislature.  You 
permit  the  Legislature  to  appoint  police  boards  for  the  different  cities  of  the  State, 
and  take  it  out  of  the  control  of  the  people  of  the  locality,  whilst  this  provision  puts 
the  actual  power  and  control  of  the  police  force  in  the  mayor  of  the  city,  an  oflBcer 
elected  by  the  people  themselves,  and  directly  responsible  to  them.  It  is  the  very 
opposite  of  centralizing  power.  The  provision  is  a  wise  one.  It  gives  these  mayors 
powers  which  it  is  necessary  they  should  have  in  order  that  they  may  perform  the 
duties  which  the  Constitution  imposes  upon  them. 

Mr.  Smith:  Mr.  Chairman,  I  might  have  anticipated  that  the  gentleman  from 
Culpeper  (Mr.  Barbour)  would  have  known  very  much  better  what  is  for  the  good  ot 
the  inhabitants  of  the  cities  than  do  the  representatives  of  the  cities.  I  believe  when 
a  question  heretofore  came  before  this  body  as  to  the  proper  constitution  of  the  judici- 
ary of  the  State,  the  gentleman  from  Culpeper  was  the  one  who  stood  forward  to  say 
and  to  express  and  declare  what  the  constitution  of  the  judiciary  should  be  In  the 
cities,  without  reference  to  the  views  or  wishes  expressed  by  the  representatives  of  the 
cities. 

I  said  there  was  a  thread  running  through  the  woof  and  warp  of  the  proposed  Con- 
stitution, because  it  is  not  yet  a  fixed  fact  that  the  instrument  which  is  now  in  process 
of  formation  shall  become  the  organic  law  of  the  State;  and,  Mr.  Chairman,  I  do  not 
believe  it  should  become  the  fundamental  organic  law  of  the  State  until  those  who  are 
to  be  controlled  by  it  and  to  live  under  its  operation  shall  have  an  opportunity  to  ex- 
press and  declare  whether  it  is  the  will  of  the  people  that  it  shall  be  the  Constitution. 
(Applause.) 

The  gentleman  from  Culpeper  has  adverted  to  the  condition  of  affairs  in  the  city 
of  Alexandria  as  being  one  of  turmoil  between  the  mayor  of  that  city  and  the  Board 
of  Police  Commissioners.  I  have  been  counsel  in  much  of  that  litigation,  and  in  that 
way  my  attention  has  been  directed  and  drawn  to  the  city  such  as  its  contemplated 
concentration  of  power  in  the  hands  of  the  executive  of  the  city,  such  as  is  contemplated 
by  the  report  of  thiis  committee.  I  say  it  would  become  an  engine  of  power  and  in- 
fluence in  the  hands  of  the  mayor  if  he  is  vested  with  the  absolute  power  to  remove 
not  only  the  city  ofiicers,  but  all  the  State  officers  who  have  jurisdiction  in  that  com- 
munity. 

The  gentleman  say  I  am  technical  when  I  say  a  policeman  is  a  State  officer.  The 
question  arose  in  the  city  of  Lynchburg,  where  the  mayor  undertook  to  remove  the 
chief  of  police  from  his  office.  The  matter  went  into  the  courts  and  became  a  subject 
of  litigation;  and  the  chief  of  police  sued  the  mayor  of  the  city  of  Lynchburg  and  re- 
covered a  judgment  for  a  large  amount  of  money  uopn  the  ground  that  the  mayor  ex- 
ceeded his  authority  and  had  not  the  power  or  authority  to  remove  him. 

I  say  it  is  wise  to  have  a  separation  of  the  power  of  removal  of  city  or  municipal 
officers  and  State  officers,  and  that  the  effect  of  this  provision  in  the  Constitution  will 


DEBATES  OF  TIIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2001 

be  to  obliterate  all  distinction  so  far  as  that  power  is  concerned,  and  to  mal^e  the  chief 
of  police,  as  well  as  every  policeman,  practically,  a  municipal  oflacer. 

For  these  reasons,  Mr.  Chairman,  I  hope  the  committee  will  adopt  the  amendment 
to  strike  out  the  words  I  have  indicated. 

Mr.  Meredith:  Mr.  Chairman,  I  desired  if  possible  to  have  the  matter  postponed 
in  order  that  the  amendment  might  be  drafted  in  such  a  shape  as  to  avoid  some  evils 
that  I  think  exist,  and  at  the  same  time  not  to  be  as  radical  a  change  as  that  suggested 
by  the  gentleman  from  Alexandria  (Mr.  Smith).  I  think  the  police  force  of  the  city 
of  Richmond  should  always  be  under  the  supervision  of  the  mayor,  and  that  he  should 
have  full  power  of  suspension  and,  unless  there  is  a  police  board,  he  should  have  the 
power  of  removal;  but,  as  the  gentleman  from  Alexandria  did  not  desire  that  the  sec- 
tion should  be  passed  by,  I  offer  the  following  as  a  substitute  for  his  motion  to  strike 
out  the  words  "police  and,"  in  line  10.  Strike  out,  in  lines  17  and  18,  the  following 
words:  "He  shall  also  have  power  to  suspend  and  remove  such  oflBcer,"  and  insert  in 
lieu  of  it  the  following:  "He  shall  also  have  pov/er  to  suspend  such  officers  and  police 
and  to  remove  such  officers,  and  also  such  police  when  authorized  by  the  Legislature." 
I  have  spoken  to  the  chairman  of  the  committee  about  the  amendment,  and  to  the 
gentleman  from  Culpeper  (Mr.  Barbour),  who  is  a  member  of  the  commitcee. 

Mr.  Barbour:  There  is  no  objection  to  that  amendment. 

Mr.  Meredith:  It  simply  relieves  a  difficulty  we  might  have  in  regard  to  removal 
by  the  mayor,  which  would  conflict  with  the  duties  put  upon  police  boards. 

The  Chairman:  The  question  is  on  the  substitute  proposed  by  the  gentleman  from 
Richmond  (Mr.  Meredith)  to  the  amendment  offered  by  the  gentleman  from  Alexandria 
(Mr.  Smith). 

The  substitute  was  agreed  to. 

Mr.  Summers:  Mr.  Chairman,  I  desire  to  call  the  attention  of  the  committee  to 
Section  2  of  the  report,  which  reads:  "General  laws  for  the  organization  and  govern- 
ment of  cities  and  towns  shall  be  passed  by  the  General  Assembly  in  a  manner  pre- 
^rihed  by  this  Constitution."  Section  6  provides:  "In  every  city  there  shall  be 
elected  by  the  qualified  voters  thereof  one  city  treasurer,"  etc.  We  have  made  no  pro- 
vision in  this  report  for  the  election  of  town  officers.  I  hope  the  committee  will  insert 
in  Section  6  the  words  "in  every  city  and  town." 

The  Chairman:  The  question  is  on  the  amendment  of  the  gentleman  from  Wash- 
ington. 

The  amendment  was  rejected. 

On  motion  of  Mr.  James  W.  Gordon,  the  committee  rose  and  the  President  resumed 
the  chair. 

On  motion  of  Mr.  George  K.  Anderson,  the  Convention  adjourned  until  Saturday, 
January  25,  1902,  at  10  o'clock  A.  M. 


SATURDAY,  January  25,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  John  G.  Scott,  D.  D. 

Mr.  Barbour  presented  a  lengthy  memorial  from  the  Anti-Saloon  League  of  Vir- 
ginia in  behalf  of  the  Barbour-Quarles  resolution  as  to  saloon  licenses,  which  was  re- 
fered  to  the  Committee  on  Preamble  and  Bill  of  Rights. 

On  motion  of  Mr.  Brooke,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organiza- 
tion and  Government  of  Cities  and  Towns. 

On  motion  of  Mr.  Brooke,  slight  verbal  changes  were  made  in  Sections  1  and  11. 


2002  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Under  this  provision  there  cannot  be  a  lease  for  longer  than  thirty  years. 

Mr.  Meredith:  But  the  other  municipal  property,  gas  works,  and  things  of  that 
kind,  ought  not  to  be  allowed  to  be  disposed  of  without  more  than  a  majority  vote. 
You  see  the  necessity  of  protecting  them  from  sale,  and  yet  you  leave  the  language  so 
that  the  same  thing  can  be  done  by  a  long  lease  with  the  right  to  renew. 

Mr.  Brooke:  I  appreciate  what  the  gentleman  from  Richmond  says.  I  think  I 
appreciate  it  fully;  but  we  do  not  want  to  step  from  the  frying-pan  into  the  fire  by  tying 
the  hands  of  the  councils  in  the  management,  from  year  to  year  it  may  be,  of  any 
property  which  the  city  may  have  and  yet  not  use  for  the  purposes  of  the  city.  For 
instance,  suppose  the  city  has — and  I  believe  in  my  own  city  it  is  true — buildings 
which  are  not  actually  used  for  city  purposes,  and  are  leased  out  or  rented  from  year 
to  year  until  they  shall  become  necessary  for  the  purposes  of  the  city. 

Mr.  Meredith:  We  have  an  instance  of  that  in  the  city  of  Richmond.  We  have 
a  very  large  piece  of  property  of  that  kind,  but  there  is  no  difficulty  in  getting  a 
three-fourths  vote  in  a  matter  of  that  kind. 

Mr.  Brooke:  I  am  not  speaking  of  large  pieces  of  property.  I  am  entirely  with 
the  gentleman  on  that  subject,  but  I  refer  to  the  smaller  pieces  of  property  which  are 
not  actually  in  use  for  the  purposes  of  the  city,  but  which  the  city  may  rent  from  year 
to  year,  not  desiring  to  make  a  long  lease  of  them,  because  they  expect  to  use  them 
themselves. 

Mr.  Meredith:  If  the  language  after  line  11  has  any  reference  to  the  property 
referred  to  above,  you  are  requiring  it  to  be  disposed  of  by  a  three-fourths  vote,  which 
I  do  not  think  can  be  the  construction  of  the  language.  If  that  is  not  its  construction, 
as  to  the  vote  required,  can  it  be  the  construction  as  to  the  lease  of  the  property,  be- 
cause it  is  intended  to  apply  to  franchises,  which  are  simply  the  right  to  do  a  certain 
class  of  work. 

Mr.  Barbour:  If  the  gentleman  will  permit  me,  I  will  read  the  section  as  it  now 
stands,  and  I  think  he  will  see  the  whole  subject  is  covered: 

The  rights  of  no  city  or  town  in  and  to  its  water  front,  wharf  property,  public 
landings,  wharves,  docks,  streets,  avenues,  parks,  bridges,  and  all  other  public 
places,  and  its  gas  works,  water  works,  and  electric  lights,  shall  be  sold  except 
by  an  ordinance  or  joint  resolution  passed  by  a  recorded  three-fourths  vote  of  all 
the  members  elected  to  each  branch  of  the  council  of  said  cities,  and  under  such  re- 
strictions as  may  be  imposed  by  law,  and  in  case  of  the  vote  by  the  mayor  of  such 
an  ordinance  or  joint  resolution,  it  shall  require  a  recorded  vote  of  three-fourths  of 
all  the  members  elected  to  each  branch  of  the  council,  in  the  manner  provided  in 
Section  9,  to  pass  the  same  over  the  veto;  and  no  franchise,  lease  or  right  to  use  the 
same,  etc. 

That  certainly  includes  all  the  property.  It  includes  water  front,  wharf  property, 
public  landings,  wharves,  docks,  streets,  avenues,  parks,  bridges,  gas  works,  water 
works,  and  electric  works. 

Mr.  Meredith:  Then  I  would  ask  you  to  strike  out  the  word  "lease,"  in  line  11, 
and  put  it  where  you  have  put  the  word  "sold"  and  confine  your  franchise  to  what  yon 
do  really  mean  by  "franchise,"  the  right  to  use  property.  Let  it  read,  "No  franchise 
shall  be  for  more  than  thirty  years,"  but  do  not  let  the  property  of  the  city  be  sold  or 
leased,  which  can  be  made  to  mean  the  same  thing,  without  a  large  vote. 

Mr.  Hatton:  Mr.  President,  there  seems  to  be  some  doubt  about  this  language, 
and  I  call  attention  to  the  fact  that  the  phraseology  here  when  it  includes  water  fronts 
and  wharf  property  has  a  vital  effect  upon  my  own  city,  which  owns  very  valuable 
wharf  property  which  is  now  leased  in  connection  with  its  ferry,  and  from  which  the 
city  derives  a  very  large  revenue,  I  would  not  like  to  see  any  language  used  here  that 
would  unnecessarily  hamper  my  city  in  the  disposition  or  enjoyment  of  that  property 
which  is  now  leased  at  an  annual  rental  of  some  $65,000  a  year.    I  s.sk  unanimous  con- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.      .  2003 

sent  to  have  the  matter  passed  by,  so  that  the  committee  and  the  members  of  the  Con- 
vention who  are  vitally  interested  in  it  may  have  an  opportunity  for  further  consid- 
eration.  I  hope  that  such  action  will  meet  the  views  of  the  chairman  of  the  committee. 

Mr.  Brooke:    Do  you  object  to  the  word  "lease"  being  retained  in  line  11? 

Mr.  Hatton:  I  would  object  to  having  the  word  ''lease"  put  where  the  gentleman 
from  Richmond  desires  it  should  be  put,  and  to  have  my  city  hampered  so  that  it 
could  not  lease  its  ferries  except  by  a  three-fourths  vote  of  all  the  members  elected  to 
its  city  council.  I  should  like  to  see  it  properly  restricted,  but  not  so  materially  re- 
stricted that  it  might  result  in  tying  the  hands  of  my  city  in  so  important  a  matter. 

Mr.  Meredith:  Does  the  gentleman  contend  as  a  principle  of  government  for  the 
cities,  that  a  city  ought  to  have  the  right  to  lease  the  gas  works  for  thirty  years  upon 
a  majority  vote?  I  ask  the  committee  to  consider  the  principles  involved  in  this  thing, 
as  to  whether  a  municipality,  after  having  built  up  a'  plant  worth,  I  will  say,  a  couple 
of  million  dollars,  shall  have  the  right  by  a  majority  vote  to  lease  that  plant.  I  re- 
spectfully submit  there  is  great  danger  in  that,  the  danger  of  having  your  hands  tied  is 
not  comparable  with  that  of  having  yourselves  robbed  of  your  property.  I  submit 
you  gentlemen  ought  to  pay  some  attention  to  those  who  have  lived  in  cities  large 
enough  to  feel  the  evils.  -  You  gentlemen  have  been  fortunate,  perhaps,  and  have  not 
had  that  evil  amongst  you,  because  you  know  everybody,  and  you  are  in  touch  with 
everybody,  and  you  restrain  everybody;  but  that  is  not  the  case  in  a  large  city.  Things 
are  done  in  a  night  that  you  cannot  prevent;  and  I  think  it  wise  we  should  put  some 
protection  at  least  around  the  disposal  of  these  things,  and  the  line  of  thought  in  re- 
gard to  it  is  that  the  city  and  nobody  else  should  own  what  we  call  natural  mo- 
nopolies. I  respectfully  submit  you  cannot  make  any  language  too  broad  to  accom- 
plish the  purpose  aimed  at  in  the  sale,  and  when  it  comes  to  the  lease  of  this  particular 
piece  of  property  if  you  will  broaden  the  language  down  below,  and  speak  of  the 
franchise  or  right  through,  along,  over  or  under  the  streets  of  the  city,  it  shall  not 
be  for  more  than  thirty  years,  you  accomplish  your  purpose,  but  you  ought  not  to  let 
any  of  this  property  of  the  city  be  leased.  I  do  not  know  very  much  about  public  land- 
ings and  wharves.  That  is  a  matter  in  which,  it  seems  to  me,  the  seaport  cities  are 
interested,  and  I  should  think  they  would  desire  to  have  their  cities  protected  against 
the  improper  leasing  of  them. 

I  am  not  contending  for  anything  for  the  city  of  Richmond.  I  am  repeating  what 
I  said  before,  and  I  feel  it  very  earnestly.  It  may  be  as  the  gentleman  has  suggested, 
that  I  have  had  experience  that  has  not  been  fortunate  in  these  matters,  but  it  is  just 
as  probable  that  these  gentlemen  will  have  just  such  unfortunate  experience  in  the 
future.  I  am  simply  contending  that  when  you  allow  a  city  to  be  deprived  of  what  is 
regarded  as  a  natural  monopoly,  which  ought  to  be  owned  by  the  city,  when  you  pro- 
pose to  sell  it  or  lease  it  in  such  a  manner  as  to  be  regarded  as  a  sale,  you  ought  to 
protect  it  by  such  a  vote  as  to  give  it  ample  protection. 

I  am  perfectly  willing  that  it  should  be  passed  by  if  the  chairman  of  the  commit- 
tee is  willing  that  It  should  be.  I  think  the  last  few  lines,  beginning  at  line  11,  can 
be  so  modified  as  to  express  what  I  think  was  the  purpose  of  the  language.  When 
you  speak  of  "through,  across,  under,  or  over,"  you  refer  to  the  highways  of  the  city. 
Therefore,  if  you  will  confine  it  to  that,  and  will  insert  "sold  or  leased/'  above  there 
you  will  give  the  city  protection.  I  do  not  want  to  criticise  the  language  of  the  com- 
mittee's report  in  any  other  particular,  because  I  have  seen  the  wisdom  of  i"t. 

Mr.  Brooke:  Mr.  President,  I  will  say  that  the  Committee  on  the  Organization 
and  Government  of  Cities  and  Towns  understands  the  attitude  and  temper  of  the  gen- 
tleman from  Richmond  on  this  subject.  We  simply  wish  to  get  the  matter  in  such  a 
Bhape  that  there  can  be  no  mistake  about  it.  We  may  differ,  and  I  must  confess  that  at 
present  I  do  differ,  as  to  the  wisdom  of  prohibiting  the  absolute  lease  of  property  by  a 
three-fourths  vote.    I  can  understand  the  difl^culty  which,  the  gentleman  suggests  with 


3004  DEBATES  OF  THE  COJ^STITUTIOJ^AL  CONVENTION  OF  VIRGINIA. 

regard  to  city  water-works,  city  gas  works,  because  you  do  practically  accomplish  the 
same  thing  by  a  lease  for  thirty  years  as  you  would  by  selling  them;  but  there  are 
other  classes  which  it  would  injure  the  city  just  as  much  in  the  other  direction  if  you 
tied  their  hands  so  that  they  could  not  lease  them,  except  by  a  three-fourths  vote. 

Let  me  give  as  an  illustration  the  instance  mentioned  by  the  gentleman  from  Ports- 
mouth. Prior  to  about  fifteen  years  ago,  the  Norfolk  county  ferries,  as  they  are  known, 
which  are  owned  jointly  by  the  county  of  Norfolk  and  the  city  of  Portsmouth,  were 
operated  by  a  joint  committee  made  up  of  a  committee  appointed  by  the  Board  of  Su- 
pervisors of  Norfolk  county,  and  a  committee  appointed  by  the  council  of  the  city  of 
Portsmouth. 

During  that  whole  period  I  cannot,  of  course,  say  that  the  ferries  were  run  at  a 
loss  and  were  a  burden  upon  the  county  of  Norfolk  and  the  city  of  Portsmouth,  but 
certainly  nobody  ever  supposed  from  the  results  of  their  operations  that  it  was  the 
gold  mine  that  it  has  been  developed  to  be  now.  The  operation  of  the  ferries  was  of 
such  a  character  that  it  came  to  be  regarded,  whether  truthfully  or  not  I  do  not  know, 
as  simply  a  place  in  which  good  berths  could  be  found  for  active  politicians. 

About  twelve  or  thirteen  years  ago,  by  some  fortuitous  happening,  the  city  of 
Portsmouth  and  the  county  of  Norfolk  determined  to  lease  those  ferries  for  ten  years. 
Now,  if  this  provision,  suggested  by  the  gentleman  from  Richmond,  had  been  the  law 
at  that  time,  I  doubt  very  much  whether  that  could  have  been  done.  Against  such  an 
•  effort  would  have  been  arrayed  the  political  power  of  all  the  poiticians  of  Norfolk 
county  and  of  Portsmouth  city,  and  it  would,  I  think,  have  been  practically  impossible 
to  change  the  method  of  the  management  of  a  joint  committee  to  a  lease  to  an  indi- 
vidual. But  somehow  they  did  succeed  in  changing  it  by  a  majority  vote,  and  they 
leased  those  ferries  for  ten  years  for  $10,000  a  year. 

Mr.  Hatton:    Twenty  thousand  dollars. 

Mr.  Brooke:  Well,  the  company  that  got  that  lease  made  big  money,  and  two  years 
ago  those  same  ferries  were  put  up  for  public  lease  for  ten  years,  and  at  public  auction 
were  leased  for  $61,000  a  year.  Now,  if  you  require  that  no  property  of  the  city  may 
be  leased  without  a  three-fourths  vote,  you  can  see  from  that  instance  what  would  be 
the  result.  Of  course,  I  understand  that  one  swallow  does  not  make  a  spring,  and  one 
instance  does  not  establish  a  rule.  But  you  can  take  that  as  an  illustration,  and  you 
will  find  that  there  exists  in  every  city  of  the  Commonwealth  some  particular  kind  of 
property  or  some  property  so  situated  with  relation  to  the  city  as  to  make  it  very  in- 
jurious to  the  interest  of  the  city  if  they  cannot  lease  it  without  a  three-fourths  vote. 

On  the  other  hand,  as  I  said  when  I  first  got  up,  I  appreciate  the  position  of  the 
gentleman  from  Richmond  with  regard  to  such  natural  monopolies  as  ought  to  belong 
to  the  city  as  do  belong  to  the  city.  There  is  some  doubt  whether  they  ought  to  belong 
to  the  city  or  not.  There  is  a  difference  of  opinion  about  that.  But  take  the  water- 
works, gas-works,  and  electric-works  that  do  belong  to  a  city.  It  is  certainly  the  pur- 
pose of  this  provision  that  they  should  not  be  sold  without  a  three-fourths  vote;  and 
I  can  appreciate  the  position  of  the  gentleman  from  Richmond  when  he  says  that  to 
lease  them  for  thirty  years  would  be  as  bad,  to  all  practical  purposes,  as  selling  them. 

It  has  been  suggested  that  we  might  again  pass  by  this  section^.  It  is  an  important 
matter,  and  one  which  I  would  not  like  to  see  left  entirely  in  the  hands  of  the  Commit- 
tee on  Final  Revision  and  Adjustment. 

Mr.  Robertson:  I  am  somewhat  interested  in  this  question.  Do  you  not  think  the 
same  argument  you  have  made  with  reference  to  the  lease  of  property  would  be  appli- 
cable to  the  sale  of  property,  that  a  city  might  own  greatly  to  the  interest  of  the  city  to 
sell,  and  get  it  out  of  the  hands  of  the  political  bosses  and  other  people  who  fill  the 
oflSces  that  would  manage  that  property;  and  might  they  not  prevent  an  advantageous 
sale  by  controlling  a  minority  in  the  city  council?  It  seems  to  me  there  is  more  danger 
in  that  than  there  is  in  the  other  proposition.    I  recognize  the  other  danger  that  the 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2005 

gentleman  from  Richmond  has  pointed  out,  but  it  does  seem  to  me  that  the  danger  on 
the  other  side  is  greater,  for  the  simple  reason  that  you  have  to  control  fewer  men 
when  it  is  to  the  interest  of  the  city  to  do  it.  After  all,  the  matter  has  come  down  to 
this:  the  people  must  elect  better  councils,  and  it  will  then  not  be  necessary  to  tie 
the  hands  of  the  councils. 

Mr.  Meredith:  I  make  the  motion  that  Section  11  be  passed  by  for  further  con= 
sideration. 

The  Chairman:  It  requires  unanimous  consent.  The  gentleman  from  Richmond 
(Mr.  Meredith)  asks  unanimous  consent  that  Section  11  be  again  passed  by  for  the 
purpose  of  perfecting  the  phraseology.    Is  there  objection? 

Without  objection  it  will  be  taken  as  the  sense  of  the  committee. 

On  motion  of  Mr.  Waddill,  the  committee  rose  and  the  President  resumed  the  chair. 

Mr.  Mcllwaine:  Mr.  President,  I  have  been  requested,  as  chairman  of  the  Com- 
mittee on  Education  and  Public  Instruction,  to  bring  before  the  Convention  a  matter 
which  was  postponed — the  matter  of  schools  and  colleges.  There  is  only  a  small  num- 
ber of  members  present,  but  I  am  perfectly  willing  to  have  the  matter  settled  by  those 
who  are  present. 

It  will  be  remembered  that  when  this  subject  was  up  before  its  consideration  was 
postponed  until  the  report  of  the  Committee  on  Taxation  and  Finance  should  be  pre- 
sented, as  it  was  understood  that  a  resolution  adverse  to  the  action  of  the  Committee 
on  Education  and  Public  Instruction  had  been  adopted  by  that  committee.  I  am  in- 
formed by  gentlemen  connected  with  that  committee  that  the  resolution  has  been  re- 
scinded, and  that  the  committee  will  make  no  report  on  this  subject.  Therefore,  it 
seems  to  me  it  is  proper  for  the  Convention  to  take  up  this  matter  and  to  dispose  of 
it  now,  and  unless  there  be  objection,  I  make  a  motion  to  that  effect. 

The  motion  was  agreed  to. 

The  President:    The  Secretary  will  read  the  section  referred  to. 

And  provided,  second,  that  this  section  shall  in  no  wise  affect  the  act  of  the  Gen- 
eral Assembly  passed  February  23,  1892,  relating  to  bonds  held  by  schools  and  colleges. 

Mr.  Mcllwaine:  Mr.  President,  this  clause  was  not  considered  in  Committee  of 
the  Whole,  but  it  was  presented  to  the  Convention,  and  therefore  I  suppose  it  is  per- 
fectly proper  to  take  it  up  now  in  the  Convention. 

I  ask  the  careful  attention  of  the  gentlemen  of  the  Convention  to  the  reading  of 
the  first  clause  in  the  section,  and  then  to  the  clause  which  is  to  be  under  immediate 
consideration: 

No  appropriation  of  public  funds  shall  be  made  to  any  school  or  institution  of 
learning  not  owned  or  exclusively  controlled  by  the  State:  provided,  that  this  sec- 
tion shall  in  no  wise  affect  the  act  of  the  General  Assembly  passed  February  23,  1892, 
relating  to  bonds  held  by  schools  and  colleges. 

The  effect  of  this  section  was  intended,  and  I  believe  such  a  course  will  be  found 
advantageous,  to  leave  the  matter  of  the  schools  and  colleges  exactly  in  the  position  it 
at  present  occupies,  to  leave  it  in  the  hands  of  the  General  Assembly.  That  is  the  only 
desire  the  Committee  on  Education  and  Public  Instruction  has  on  this  subject.  If 
there  are  gentlemen  present  who  wish  information  on  this  subject,  I  can  go  into  the 
matter,  and  will  give  them  all  the  information  they  wish. 

The  report  of  the  committee  was  unanimous.  I  do  not  know  that  every  member 
of  the  committee  was  present  at  the  time,  but  when  the  vote  was  taken  every  man 
present — and  there  was  a  very  large  majority  there — voted  to  present  the  matter  to 
the  Convention  in  this  form.  It  seems  to  me  the  view  taken  by  the  Committee  on 
Taxation  and  Finance  is  the  right  one;  that  is,  that  this  is  a  legislative  matter,  and 


2006 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


not  a  matter  to  put  into  the  organic  law  of  the  Commonwealth.  Therefore,  I  do  not 
wish  to  detain  the  Convention  unless  it  is  necessary,  but  if  any  gentleman  wishes  more 
information  in  regard  to  the  matter  than  he  is  possesed  of,  I  am  prepared  to  give  it 
in  full. 

Mr.  Keezell:  I  move  to  strike  out  the  language  in  Section  11  after  the  word 
"may,"  in  line  5,  down  to  the  word  "colleges,"  in  line  9. 

Mr.  President,  this  matter  comes  up  to-day  unexpectedly,  as  far  as  I  am  concerned, 
and  I  believe  that  is  probably  true  as  to  other  gentlemen,  but  I  do  not  desire  to  be 
put  in  the  attitude  of  delaying  the  proper  conduct  of  business.  The  gentleman  from 
Prince  Edward  (Mr.  Mcllwaine)  has  made  a  fair  statement,  I  think,  so  far  as  the  atti- 
tude of  the  Finance  Committee  is  concerned.  That  committee  voted,  if  I  am  not  un- 
parliamentary in  mentioning  a  matter  that  happened  in  that  committee — and  if  I  am 
I  suppose  I  am  only  following  in  the  wake  of  my  distinguished  friend  from  Prince 
Edward — to  include  a  provision  where  the  article  with  reference  to  the  sinking  fund 
comes  in,  making  it  incumbent  upon  the  General  Assembly  of  Virginia  that  in  re- 
tiring the  obligations  of  the  State  it  should  first  retire  those  obligations  which  bore 
a  higher  rate  of  interest,  that  they  should  be  retired  in  preference  to  those  which  bore 
a  lower  rate  of  interest.  That  was  the  provision  that  was  at  first  tentatively  adopted 
by  the  Committee  on  Taxation  and  Finance. 

Later  on,  I  understand,  in  my  absence,  the  committee  reversed  itself  and  adopted 
the  view  of  a  number  of  the  members  of  that  committee  who  declared  that  this  whole 
matter  ought  to  be  a  legislative  and  not  a  constitutional  matter,  that  it  ought  to  be 
dealt  with  by  the  Legislature  and  not  by  the  Finance  Committee  is  the  correct  one  

Mr.  Dunaway:  The  members  of  the  Committee  on  Education  entix*ely  concurred 
in  the  opinion  that  the  matter  ought  to  be  left  with  the  General  Assembly.  If  the 
gentleman  is  satisfied  with  the  existing  law  in  regard  to  the  matter,  this  is  only  a  pro- 
posal to  leave  the  matter  just  where  it  is,  and  not  affect  it  either  favorably  or  un- 
favorably. 

Mr.  Keezell:  That  is  just  where  the  gentleman  from  Lancaster  (Mr.  Dunaway) 
and  I  differ.  If  nothing  is  to  be  said  about  it  in  the  Constitution  at  all  by  the  article 
reported  by  the  Committee  on  Taxation  and  Finance,  then  I  think  nothing  ought  to  be 
said  with  reference  to  it  in  the  article  reported  by  the  Committee  on  Education,  be- 
cause I  believe  it  will  be  misconstrued,  and  that  the  hands  of  the  Legislature,  whether 
intentionally  or  not,  will  be,  to  a  certain  extent,  tied  in  reference  to  the  matter.  If 
it  is  to  be  left  to  the  Legislature,  why  should  we  not  leave  it  there  without  prejudice 
of  any  kind?  These  institutions  have  certificates  of  indebtedness  bearing  a  certain 
rate  of  interest  which  are  as  much  the  obligations  of  the  State  as  are  any  of  its  banks. 
Why  should  they  be  mentioned  at  all? 

Mr.  Robertson:  This  section  provides  that  there  shall  be  no  appropriation  made 
to  any  schools  or  colleges  not  owned  or  exclusively  controlled  by  the  State.  If  you  do 
not  put  some  provision  in  there  limiting  that  language,  might  it  not  be  construed  that 
this  was  in  the  nature  of  an  appropriation?  That  is  the  object  of  putting  it  in  there. 
It  is  not  intended  to  tie  the  hands  of  the  Legislature.    It  is  left  open. 

Mr.  Keezell:  But  it  is  not  an  appropriation  if  it  is  paying  interest  upon  obliga- 
tions which  the  institutions  hold  in  contemplation  of  this  section. 

Mr.  Robertson:  I  do  not  say  that.  I  say  this  is  put  in  to  prevent  any  such  con- 
struction as  that.  It  is  not  intended,  as  I  understand  the  language  of  the  article,  to 
tie  the  hands  of  the  Legislature  at  all.  It  is  simply  to  prevent  a  construction  of  this 
article  which  might  be  adverse  to  these  colleges. 

Mr.  Keezell:  I  understand  that  ts  the  opinion  of  some;  but  I  do  not  think  it  is  a 
proper  conclusion.  If  these  obligations  stand  upon  legislative  action,  as  they  do,  bear- 
ing obligations  bearing  a  given  rate  of  interest,  created  by  legislative  action,  and  bear- 
ing this  rate  of  interest  as  long  as  they  are  held  by  these  institutions,  and  not  paid  by 


DEBATES  OF  THE  COXSTITUTTOXAL  COXVEXTIOX  OE  TIEGIXIA. 


2007 


the  State,  it  seems  to  me  the  auestion  of  an  appropriation  does  not  enter  it,  because 
it  is  simply  a  question  of  paying  the  interest  upon  obligations  which  these  institutions 
hold,  and  which  have  been  executed  by  the  State.  Therefore  this  language  does  not 
undertake  to  put  an  appropriation  in  here,  and  it  will  probably  be  misconstrued  by 
the  Legislature  as  being  intended  by  the  Convention  to  perpetuate  for  all  time  an 
obligation  which  is  now  redeemable  at  the  pleasure  of  the  State. 

Mr.  Dunaway:  Suppose  this  language  is  put  into  the  Constitution,  could  not  the 
Legislature  deal  with  just  as  free  a  hand  in  regard  to  the  matter  as  if  it  were  not 
there? 

Mr.  Keezell;  I  do  not  know  about  that.  That  is  a  question  about  which  I  am  not 
certain. 

Mr.  Dunaway:  I  am  sure  that  was  the  feeling  of  the  members  of  the  committee, 
and,  as  the  gentleman  from  Roanoke  (Mr.  Robertson)  has  said,  it  is  a  true  explanation 
of  the  situation.  It  is  only  a  saving  clause.  It  may  be  that  some  gentlemen  would 
contend  that  the  State  is  now  making  an  appropriation  to  these  institutions  in  the 
way  of  paying  interest.  That  is  a  contention  that  is  not  admitted  by  a  great  many 
gentlemen  on  this  floor;  but  in  order  to  prevent  any  such  construction  as  that  from 
being  put  upon  the  language,  this  is  a  mere  saving  clause  which  leaves  the  whole 
matter  entirely  in  the  discretion  of  the  General  Assembly.  That  is  my  understand- 
ing of  it. 

Mr.  Ts'illiam  A.  Anderson;  Mr.  President,  I  desire  to  ask  my  friend  whether  he 
ever  knew  of  any  interest  to  be  paid  out  of  the  treasury  of  Virginia  except  in  pursu- 
ance of  an  act  appropriating  the  public  revenues  for  that  purpose?  It  requires  an  ap- 
propriation act  to  pay  interest. 

Mr.  Mcllwaine:  I  desire  to  say  to  the  gentleman,  in  reference  to  that  point,  that 
I  asked  the  auditor  if  this  was  an  appropriation,  and  he  said  it  was  necessary  for  the 
Legislature  to  appropriate  interest  every  year  in  the  appropriation  bill. 

Mr.  Keezell:  Yes;  for  every  one  of  its  obligations,  but  it  is  no  more  an  appro- 
priation in  the  sense  of  being  a  special  appropriation  when  you  come  to  pay  six  per 
cent,  interest  upon  an  obligation  than  it  is  an  appropriation  when  you  come  to  pay  three 
per  cent,  interest.  The  appropriation  is  not  to  the  schools,  but  to  pay  interest  just  as 
any  other  interest  is  paid,  and  no  one  will  contend  that  we  could  not  pay  interest  at 
the  usual  rate  to  any  holder  of  our  bonds.  I  care  not  what  school  or  institution  might 
hold  them.  When  these  gentlemen  ask  to  have  this  provision  put  in  here,  they  admit, 
and  there  can  be  no  other  construction  of  it,  than  that  they  admit  that  these  particu- 
lar institutions  are  getting  special  appropriations  from  the  public  treasury,  in  exact 
opposition  to  the  first  clause  of  this  section,  which  says  that  "no  appropriation  of  public 
funds  shall  be  made  to  any  school  or  institution  of  learning  not  owned  or  exclusively 
controlled  by  the  State."  If  they  are  not  getting  a  special  appropriation,  there  is  no 
necessity  for  the  clause  in  this  section.  If  they  are  getting  a  special  appropriation,  then 
they  are  putting  themselves  upon-  a  basis  different  from  the  basis  upon  v/hich  they 
want  to  put  every  other  institution,  however  worth^^  that  institution  may  be. 

That  is  my  objection  to  putting  this  clause  in  the  section.  If  the  matter  is  to  be 
left  in  the  hands  of  the  Legislature — and  I  am  not  one  of  those  who  is  going  to  make 
any  special  effort  not  to  have  it  left  there — let  us  leave  it  in  their  hands  as  it  is 
now,  and  do  not  let  us  undertake  either  to  prejudice  these  institutions  or  the  rights 
of  the  State. 

Mr.  Boaz:  Will  the  gentleman  permit  me  to  suggest  to  him  that  if  we  adopted 
the  first  part  of  this  section,  we  cannot  leave  the  discretion  in  the  Legislature. 

Mr.  Keezell:  If  that  be  true,  then  you  admit  you  are  getting  a  special  appropria- 
tion out  of  the  treasury  in  defiance  of  this  very  clause  you  have  already  voted  into  the 
■Constitution. 

Mr.  Boaz:    We  did  not  vote  it  in. 


2008  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Keezell:  We  have  voted  it  in  so  far  at  least  as  the  action  of  the  committee 
is  concerned;  and  so  far  as  the  action  of  the  Convention  is  concerned,  you  have  voted 
that  clause  into  the  Constitution,  which  says  we  shall  make  no  appropriation  to  "  secta- 
rian or  other  institutions  that  are  not  owned  or  controlled  by  the  State.  The  Conven- 
tion has  done  that,  and  now  you  say  you  shall  be  exempt  from  that  provision.  The 
position  I  take  in  reference  to  the  matter  is  that  under  the  contract  which  now  exists 
between  the  State  and  these  institutions,  by  which  they  hold  obligations  of  the  State 
bearing  interest  six  per  cent.,  they  are  taken  from  under  the  provisions  of  that  clause, 
and  you  by  your  own  declaration,  now  say  you  are  embraced  by  that  clause,  and  that 
you  are  undertaking  to  be  made  a  special  and  a  privileged  class,  in  distinction  from 
all  the  other  worthy  institutions  of  the  State  which  have  not  yet  been  favored  enough 
or  fortunate  enough  to  held  some  of  the  obligations  of  the  State. 

On  motion  of  Mr.  Braxton,  the  Convention  adjourned  until  Monday,  January  27, 
1902,  at  12  o'clock  meridian. 


MONDAY,  January  27,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  B.  Beauchamp. 

Mr.  Stuart:  Mr.  President,  I  present  the  report  of  the  Committee  on  Agricultural, 
Industrial  and  Manufacturing  Interests  and  Immigration,  and  ask  that  it  be  laid  on 
the  table  and  ordered  to  be  printed. 

It  was  so  ordered. 

Mr.  Keezell:  Mr.  President,  on  Saturday,  when  the  Convention  adjourned,  I  was 
addressing  myself  to  the  proposition  to  strike  out  of  the  report  of  the  Committee  on 
Education  the  provision  which  says — 

And  provided,  second,  that  this  section  shall  in  no  wise  affect  the  act  of  the  Gen- 
eral Assembly  passed  February  23,  1892,  relating  to  bonds  held  by  schools  and  colleges. 

As  I  started  to  say  on  Saturday,  if  it  is  the  desire  of  the  Convention  to  say  nothing 
whatever  on  the  question  of  these  college  bonds,  then  I  think  we  ought  to  say  nothing 
with  reference  to  them.  I  was  one  of  those  who  believed  that  there  ought  to  be  a  pro- 
vision in  the  report  of  the  Finance  Committee  which  should  say  that  it  should  be  the 
policy  of  the  General  Assembly  in  dealing  with  this  question  of  sinking  fund  and  re- 
tirement of  the  State  obligations,  to  retire  those  obligations  which  bore  the  highest 
rate  of  interest  first.  That  was  my  position.  A  great  many  of  the  members  of  that 
committee,  in  whose  judgment  I  had  a  great  deal  of  confidence,  argued  that  this  was 
not  properly  a  constitutional  matter;  that  it  ought  to  be  dealt  with  by  the  General 
Assembly;  that  it  was  so  certainly  a  correct  busihess  proposition  that  the  Legislature 
ought  to  pay  the  bonds  bearing  the  highest  rate  of  interest,  if  they  were  due,  in  prefer- 
ence to  those  bearing  a  lower  rate  of  interest;  that  it  would  be  considered  a  reflection 
upon  the  intelligence  of  the  General  Assembly  if  such  a  provision  as  this  were  put 
into  the  Constitution,  and  that  probably,  though  it  might  be  put  there  in  a  mandatory 
form,  it  would  only  be  sugestive,  and  after  all,  remain  in  the  discretion  of  the  General. 
Assembly.  From  what  appeared  on  Saturday,  it  seems  the  Finance  Committee  has 
adopted  the  views  of  the  gentlemen  who  hold  the  position  that  the  Legislature  should 
deal  with  this  matter. 

While  I  still  hold  the  same  view  I  held  then,  and  believe  it  would  be  wise  for  the 
Constitutional  Convention  to  express  itself  in  such  a  way  that  there  could  be  no  mis- 
understanding about  what  the  representatives  of  the  people  here  assembled  think  is 
the  proper  thing  to  do  with  reference  to  the  finances  of  the  State,  yet  if  the  view 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2009 

adopted  by  the  Finance  Committee  is  to  prevail,  we  ought  to  leave  the  whole  matter 
to  the  General  Assembly,  and  we  ought  not  to  undertake  to  put  into  this  section  re- 
ported by  the  Committee  on  Education  a  provision  which  would  prejudice  the  inter- 
ests of  the  State,  in  all  human  probability,  when  the  Legislature,  at  some  future  day, 
undertook  to  deal  with  the  proposition  and  to  pay  off  those  certificates  in  accordance 
with  the  provisions  of  the  act  under  which  they  were  issued. 

I  know,  Mr.  President,  that  I  am  trenching  on  very  dangerous  ground.  I  know 
frhen  I  favor  this  proposition  I  am  treading  on  the  toes  of  a  great  many  interests:  and 
I  can  see  how  gentlemen  who  have  stood  up  here  and  been  very  insistent  and  persistent 
in  their  declarations  in  favor  of  the  principle  enunciated  in  the  first  clause  of  this  sec- 
tion are  now  flinching  when  it  comes  to  applying  that  principle  to  institutions  in  which 
they  have  some  individual  interest;  and  I  say  that  in  all  kindness,  because  I  know  we 
are  all  human  beings,  and  we  are  all  made  up  pretty  much  after  the  same  pattern. 
During  the  earlier  hours  of  the  Convention  there  was  scarcely  a  day  passed  but  that 
there  was  a  flood  of  resolutions  pouring  into  the  Convention  from  all  over  the  Com- 
monw^ealth  from  religious  bodies,  declaiming  and  declaring  against  the  policy  of  allow- 
ing the  State  to  make  appropriations  of  public  money  to  sectarian  institutions  or  insti- 
tutions not  wholly  owned  and  controlled  by  the  State.  We  had  upon  the  floor  of  the 
Committee  of  the  Whole,  and  also  upon  the  floor  of  the  Convention,  I  am  told,  though 
my  recollection  was  not  along  that  line,  a  discussion  as  to  what  should  be  the  policy 
of  this  Convention  in  dealing  with  this  question. 

After  a  full  discussion  here  upon  this  floor,  there  has  been  engrafted  into  the  Con- 
stitution a  provision  w^hich,  I  understand  from  the  statement  of  the  gentleman  from 
Prince  William  (Mr.  Thornton),  the  Convention  has  refused  to  reconsider,  and  is  now 
a  part  of  the  Constitution,  which  says  that  "no  appropriation  of  public  funds  shall  be 
made  to  any  school  or  institution  of  learning  not  owned  or  exclusively  controlled  by  the 
State,"  and  then  there  is  an  exception  made  in  favor  of  William  and  Mary  College  as 
long  as  the  General  Assembly  may  see  flt  to  make  the  appropriation  to  it. 

I  am  not  a  lawyer,  Mr.  President,  as  I  have  frequently  had  occasion  to  say  upon 
the  floor,  and  probably  I  cannot  understand  the  detail  and  the  hair-splitting  of  legal 
propositions  as  some  of  my  friends  here  do;  but  I  maintain  and  I  believe  I  can  show  to 
the  satisfaction  of  the  Convention  that  there  is  no  legal  difiiculty  in  the  way  of  leaving 
out  of  the  Constitution  this  proposition  I  have  moved  to  strike  out,  and  still  leave  the 
status  of  these  institutions  and  the  bonds  held  by  them  exactly  as  it  is  now,  for  this 
reason:  I  do  not  believe  that  legally  the  paying  of  6  per  cent,  interest  upon  the  certifi- 
cates held  by  these  institutions  is  an  appropriation  to  these  colleges  or  institutions;  it 
is  an  appropriation  to  pay  the  interest  on  the  certificates  of  indebtedness  which  these 
institutions  hold,  and  not  an  appropriation  in  the  sense  interdicted  by  this  section  of 
the  Constitution  to  those  institutions. 

Mr.  President,  let  us  go  along  a  little  bit  and  look  at  that.  These  certificates  of 
debt  held  by  these  institutions  which  bear  6  per  cent,  interest  are  as  much  the  obli- 
gation of  the  Commonwealth  as  are  its  33  per  cent,  bonds.  They  are  obligations  under 
an  act  of  the  General  Assembly  which  provides  for  the  payment  of  6  per  cent,  interest, 
and,  though  in  one  sense  of  the  word — in  the  sense  that  these  institutions  aie  getting 
the  advantage  of  a  higher  rate  of  interest  than  the  other  creditors  of  the  Common- 
wealth— they  occupy  a  position  of  advantage,  yet  at  the  same  time  they  hold  the  legal 
status  of  being  the  possessors  of  bonds  bearing  6  per  cent.,  and  any  appropriation  which 
is  made  to  pay  interest  is  not  made  to  these  institutions,  but  is  made  to  pay  interest 
on  the  bonds  held  by  the  institutions. 

Any  other  construction  of  that  law  would  have  this  effect:  The  Miller  Manual 
Labor  School,  for  instance,  holds  $1,044,868.49.  all  except  $75,300  of  which  bears  6  per 
cent,  interest,  that  $75,300  bearing  4  per  cent,  interest:  and  yet  that  same  Institution 
holds  other  obligations  of  the  State,  It  holds  $353,600  of  the  3  per  cent,  obligations  of 
127 — Const.  Deb. 


2010 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


the  Commonwealth,  Will  any  gentleman  upon  this  floor  contend  it  would  be  in  oppo- 
sition to  the  spirit  of  this  clause  that  has  been  engrafted  here  to  make  an  appropria- 
tion to  pay  3  per  cent,  interest  upon  the  $353,600  held  by  the  Miller  Institute  which  it 
has  come  into  possession  of  by  purchase  in  the  open  market? 

Mr.  George  K.  Anderson:  The  $300,000  held  by  the  Miller  Manual  School,  I  think, 
can  be  transferred  by  that  school,  or  sold  in  tTie  open  market.  How  about  the  bonds 
held  under  the  act  of  February  23,  1892? 

Mr.  Keezell:  They  cannot  sell  those  bonds;  but,  while  they  cannot  do  so,  yet  at 
the  same  time  so  long  as  they  hold  those  bonds  they  have  a  right  under  the  act  creating 
them  to  receive  6  per  cent,  interest;  and  it  is  not  an  appropriation  to  the  school,  but  it 
is  an  appropriation  to  pay  interest  upon  these  certificates  which  they  hold. 

Mr.  George  K.  Anderson:  Suppose  the  Miller  School  should  attempt  to  sell  a 
part  of  that  $1,044,000  of  bonds  that  it  holds  to  you  or  in  the  open  market,  would  the 
State  be  bound  to  pay  6  per  cent,  on  it? 

Mr.  Keezell:    Certainly  not,  sir. 

Mr.  George  K.  Anderson:  Then  is  not  the  difference  between  the  3  per  cent,  now 
paid  by  the  State  and  the  6  per  cent,  paid  the  Miller  Institution  an  appropriation  made 
for  the  special  purpose  of  aiding  those  institutions? 

Mr.  Keezell:  No,  sir;  I  do  not  so  construe  it  at  all.  I  do  not  think  it  is  an  appro- 
priation in  contemplation  of  law  to  those  schools,  and  in  that  sense  in  opposition  to 
what  is  provided  here  in  this  section.  The  State  has  dealt  differently  with  these  insti- 
tutions from  its  other  creditors  in  more  respects  than  one.  In  the  first  place,  it  has 
not  required  that  these  bonds  shall  be  scaled  and  refunded  upon  the  same  conditions 
upon  which  all  other  obligations  of  the  State  have  been  scaled  and  refunded. 

Mr.  Lindsay:  Do  I  understand  you  lo  say  the  schools  cannot  sell  the  bonds  and- 
certificates?  They  are  obliged,  are  they  not,  to  use  the  interest  on  them  for  educational 
purposes? 

Mr.  Keezell:  That  is  my  understanding  of  it,  that  so  long  as  the  State  is  under 
obligations  to  pay  6  per  cent,  those  institutions  that  hold  the  bonds  are  under  obliga- 
tions to  use  it  for  educational  purposes. 

Mr.  Lindsay:    And  they  cannot  use  them  for  any  other  purpose? 

Mr.  Keezell:  They  have  no  right  to  use  them  for  any  other  purpose,  and  demand 
the  6  per  cent,  interest.  That  is  certainly  my  understanding  .  But,  whilst  all  that  is 
true,  the  State  reserves  the  right  at  any  time  it  may  see  fit  to  redeem  or  pay  off  these 
certificates.  The  position  I  occupy  is  that  so  long  as  this  contract  stands  between  the 
State  and  these  institutions,  the  State  is  bound  to  pay  the  6  per  cent,  interest  in  ac- 
cordance with  the  contract  by  which  these  obligations  exist;  this  being  true,  however, 
does  not  prevent  the  State  at  any  time  it  may  see  fit  from  paying  off  these  obligations. 

Mr.  Mcllwaine:  How  do  you  interpret  this  language:  "Whereas  it  appears  from 
acts  passed  by  the  General  Assembly  in  1867,  and  at  various  times  since  then,  to  be 
the  settled  policy  of  the  State  to  provide  support  for  the  education  of  her  citizens  and 
to  co-operate  with  the  generous  donors  of  her  bonds" — now  please  listen — "by  paying 
full  interest  thereon  so  long  as  they  shall  be  held  as  endowments  for  educational  pur- 
poses."   That  is  the  language  of  the  act. 

Mr.  Keezell:  Let  me  have  that  a  moment,  will  you?  I  want  to  know  from  the 
gentleman  from  Prince  Edward  (Mr.  Mcllwaine)  how  he  construes  this  part  of  it: 
"These  certificates  shall  be  non-transferable  and  redeemable  at  the  pleasure  of  the 
State?" 

Mr.  Mcllwaine:  I  explain  that  to  mean  that  whenever  these  bonds  are  used  for 
other  than  educational  purposes  the  State  has  a  perfect  right  to  pay  them  off. 

Mr.  Keezell:  Mr.  President,  v/hat  I  want  to  say  is  that  when  this  contract  was  en- 
tered into  by  the  State,  the  State  reserved  the  right  at  any  time  it  saw  fit  to  redeem 
the  certificates,  and  so  expressed  itself  in  the  act.    So  long  as  it  does  not  redeem  these 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  TIEGIXIA. 


2011 


certificates  it  is  bound  to  pay  6  per  cent,  interest.  What  I  am  now  contending  for  is 
that  we  ought  not  to  interefere  by  constitutional  provision  with  this  act;  to  the  preju- 
dice of  the  State,  if  we  are  not  going  to  say  anything  in  the  Constitution  about  its  be- 
ing a  proper  policy  to  redeem  these  obligations  in  preference  to  those  bearing  a  lower 
rate  of  interest,  we  ought  not  to  undertake  to  put  into  the  Constitution  a  provision 
which  will  probably  be  construed  as  perpetuating  appropriations  for  all  time,  if  you 
call  them  appropriations,  and  one  that  would  tie  the  hands  of  the  Legislature  if  it  saw 
fit  at  some  future  day  to  pay  off  these  obligations.  There  is  a  good  deal  in  that  pre- 
amble that  may  be  construed  very  differently  from  the  way  my  friend  from  Prince  Ed- 
ward construes  it.  It  is  the  policy  of  the  State  to  pay  full  interest.  What  is  meant 
by  full  interest?  It  has  not  reduced  the  principal  of  those  obligations,  and  it  means  in- 
terest on  the  full  amount.  If  it  had  dealt  with  S597,91S.30  of  that  debt  as  it  dealt  with 
■all  the  other  debt  of  the  Commonwealth,  the  principal  would  only  represent  46  cents 
in  the  dollar  of  this,  amount.  If  it  had  dealt  with  almost  all  the  remainder  of  those 
obligations  as  it  dealt  with  the  other  creditors,  instead  of  being  worth  100  cenfs  it 
would  be  worth  68  1-4  cents  on  the  dollar. 

Mr.  Lindsay:  Does  not  the  gentleman  know  that  if  at  the  time  the  State  adopted 
its  fixed  policy  in  the  matter  it  had  paid  those  certificates,  the  Miller  School,  as  an 
illustration,  would  have  had  an  opportunity  to  invest  in  special  bonds  at  fifty  cents 
on  the  dollar  and  would  to-day  be  receiving  6  per  cent.? 

Mr.  William  A.  Anderson:    And  other  institutions  also. 

Mr.  Keezell:  I  differ  with  the  gentleman  from  Albemarle  (Mr.  Lindsay)  in  that 
there  never  has  been  at  any  time  a  condition  of  affairs  existing  in  the  finances  of  the 
State  when  the  holders  of  these  obligations  would  be  in  as  good  a  situation  as  they 
hiave  been  in,  and  have  been  kept  in  by  the  General  Assembly  of  Virginia.  A  large 
part  of  the  holdings  of  the  Miller  School  were  purchased  in  the  open  market.  Only 
about  half  of  the  holdings  of  that  institution  came  by  devise.  The  balance,  some  $450,- 
000  or  $460,000 — I  have  not  the  exact  figures  here — were  purchased  upon  the  open 
market  at  prices  varying  from  55  to  74  cents,  I  believe  was  the  highest.  They  get  6 
per  cent,  upon  those  bonds. 

Mr.  William  A.  Anderson:    Century  bonds. 

Mr.  Keezell:  Not  century  bonds,  but  consol  bonds,  purchased  at  prices  ranging 
from  55  to  74  cents.  They  get  6  per  cent,  interest  upon  the  face  of  those  bonds  and 
have  been  getting  it  ever  since  they  have  held  them, 

Mr.  Mcllwaine:  May  I  ask  the  gentleman  if  that  is  true  as  to  the  Miller  fund? 
Did  it  not  come  down  during  the  war  and  was  it  not  left  by  Mr.  Miller  in  that  form? 

Mr.  Keezell:    No,  sir;  it  was  not. 

Mr.  Mcllwaine:  I  can  say  to  the  Convention,  Mr.  President,  that  the  very  much 
larger  part  of  the  fund  held  by  Hampden-Sidney  was  brought  over  from  before  the  war, 
and  for  a  considerable  part  of  it  the  college  paid  above  par. 

Mr.  Keezell.  Now,  Mr.  President,  the  holdings  of  the  Miller  School  are  different 
in  one  respect  from  most  of  the  other  funds.  One-third  of  it  was  cut  off  to  West  Vir- 
ginia. The  great  majority  of  the  Miller  fund  is  held  in  consol  bonds,  which  were  re- 
funded under  the  act  of  1871  and  from  which  fund  a  third  was  cut  off  and  assigned  to 
West  Virginia,  Therefore,  the  State  of  Virginia  is  not  paying  interest  on  that  one- 
third:  but  from  the  bonds  held  by  Hampden-Sidney  and  a  number  of  these  institutions 
the  one-third  has  never  been  cut  off  to  West  Virginia,  as  has  been  done  in  the  case  of 
other  obligations:  $597,918.36  of  these  bonds  represent  the  original  debt,  the  one-third 
which  ought  to  have  been  cut  off  to  West  Virginia  as  well  as  the  two-thirds  which  has 
"been  assumed  by  Virginia,  and  which  has  never  been  subjected  to  any  refunding  pro- 
cesses  

Mr.  Mcllwaine:  I  will  ask  the  gentleman  why?  Was  it  not  because  of  the  agree- 
ment between  the  bondholders  and  the  State  of  Virginia?    I  see  on  this  floor  a  gentle- 


2012  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

man  who  was  one  of  the  agents  of  Virginia  in  this  debt,  and  I  have  this  from  his  lips 
before  the  Committee  on  Taxation  and  Finance,  that  when  the  agreement  was  made  with 
the  bondholders  of  the  State  of  Virginia,  the  Legislature,  through  its  agents,  insisted 
on  the  bonds  that  were  held  by  the  schools  and  colleges  being  exempted  from  what  was 
done  with  the  other  bonds,  and  the  full  interest  being  paid  on  them;  and  he  held  and  I 
hold  that  the  State  then  made  an  agreement  to  continue  to  pay  the  6  per  cent,  on  those 
bonds,  and  that  is  evidently  the  view  which  the  Legislature  of  Virginia  has  taken  from 
that  time  to  this. 

Mr.  Keezell:  If  the  gentleman  will  allow  me,  when  the  one-third  was  cut  off  all 
the  other  debt  of  Virginia,  it  was  in  1871.  It  was  not  in  1892.  The  one-third  was  cut 
off  under  the  funding  bill  of  1871,  and  the  State  recognized  herself  as  being  respon- 
sible for  two-thirds,  and  that  one-third  ought  to  be  assigned  to  West  Virginia. 

I  am  not  raising  the  question  that  the  gentleman  insists  upon  raising  here.  My 
position  is  not  that  the  Legislature  of  Virginia  or  the  State  of  Virginia  ought  to  re- 
fuse to  pay  the  6  per  cent,  upon  these  bonds,  just  so  long  as  they  are  held  under  this 
bin  under  which  these  institutions  surrendered  their  old  bonds  and  securities,  but  I  do 
object  to  anything  going  into  the  Constitution  which  shall  undertake  to  say  that  for 
all  time  the  hands  of  the  Legislature  shall  be  bound  with  reference  to  this  matter,  and 
that  they  shall  not  have  the  right  to  pay  off  these  bonds  whenever  they  see  fit. 

Mr.  Hamilton:  Do  you  construe  the  language  of  the  report  to  mean  that  they  will 
be  bound  at  any  time  to  pay  them  off? 

Mr.  Keezell:  I  do  not  know  that  the  language  of  the  report  is  fairly  subject  to 
that  construction;  but  the  very  fact  that  these  gentlemen  are  contending  for  it  with 
the  urgency  with  which  they  are  contending  for  it,  is,  to  my  mind,  clearly  suflBcient 
to  show  that  they  hope  to  gain  a  point  of  vantage  by  having  this  provision  put  into 
the  Constitution.    Of  course,  I  do  not  mean  any  improper  advantage. 

Mr.  Robertson:  Does  not  the  language  there  expressly  say  it  shall  not  affect  these 
acts  one  way  or  the  other;  and  if  it  cannot  affect  them  either  way,  how  in  the  world 
can  this  be  construed  as  prohibiting  the  Legislature  from  acting  in  the  way  it  could 
act  without  this  provision? 

Mr.  Keezell:  That  does  not  affect  these  acts  one  way  or  the  other,  and  I  say  if  it 
does  not,  why  should  we  do  anything  about  it? 

Mr.  Hamilton:  You  have  said  you  think  gentlemen  are  endeavoring  to  obtain 
an  advantage  by  putting  something  in  here  for  the  future.  Are  you  prepared  to  say 
you  are  not  endeavoring  to  get  an  advantage  by  not  putting  in  anything,  and  leaving 
it  exactly  as  it  is? 

Mr.  Keezell:  I  certainly  do  mean  to  say  that.  I  mean  to  say  there  cannot  be  the 
slightest  doubt  in  the  world,  as  I  see  it,  that  if  nothing  is  said  about  It,  these  certifi- 
cates rest  upon  the  act  which  created  them,  and  there  can  be  no  prejudice  either  to 
the  State  or  to  these  institutions  in  the  matter  if  nothing  is  said. 

Mr.  Robertson:  How  can  it  hurt  to  say  in  so  many  words  that  the  thing  shall 
not  be  affected?   Does  it  not  leave  it  exactly  as  you  say  you  want  it  left? 

Mr.  Keezell:  I  say,  so  far  as  I  am  personally  concerned,  I  believe  It  ought  to  be 
the  policy  of  tlie  State  to  deal  with  these  institutions  and  with  this  debt  just  like  any 
business  man  would  deal  with  a  debt  of  that  sort,  if  it  was  due  and  payable.  If  the 
gentleman  from  Prince  Edward  (Mr.  Mcllwaine)  is  right  in  his  construction  of  it,  it  is 
an  obligation  which  is  fastened  upon  the  State  for  all  time,  and  the  Legislature  would 
not  have  the  right  to  pay  it  off. 

Mr.  Mcllwaine:  Mr.  President,  if  the  gentleman  will  permit  me,  this  debt  has 
been  due  long,  long  ago  and  the  State  did  not  pay  it  when  it  was  due.  If  the  State 
had  paid  this  debt  in  1892,  the  time  of  the  act  of  settlement,  these  colleges  and  schools 
could  more  than  double  their  money.  In  1893  these  very  bonds  sold  for  47  1-2  on  the 
Richmond  market,  and  if  these  schools  and  colleges  had  had  their  money,  they  could 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTION  OF  VIRGINIA. 


2013 


liave  doubled  the  number  of  their  bonds  and  gotten  3  per  cent,  on  them,  and  have  been 
doubly  as  well  off  as  they  are  today,  unless  the  State  continues  to  pay  the  6  per  cent. 

Mr,  Brown:  If  you  strike  out  this  provision  that  is  alluded  to  here  and  leave  the 
language  of  the  first  part  of  the  section,  and  the  construction  put  upon  the  interest  of 
these  certificates  is  that  it  is  an  appropriation  to  these  schools,  would  it  not  be  a  pro- 
hibition by  the  Constitution  upon  the  Legislature  to  continue  the  appropriation;  and 
leaving  it  as  it  was  left  by  the  committee,  would  it  not  leave  the  Legislature  exactly 
in  the  position  as  far  as  all  these  other  schools  are  concerned,  as  the  rest  of  the  pro- 
vision leaves  William  and  Mary  College?  In  other  words,  would  it  not  be  in  the  discre- 
tion of  the  Legislature  at  any  time,  in  pursuance  of  the  act  of  Assembly  of  February 
23,  1892,  to  call  in  these  certificates  and  pay  them  just  as  it  would  be  within  the  pro- 
vince of  the  Legislature  to  refuse  to  make  any  appropriation  to  William  and  Mary' 
College? 

Mr.  Keezell:  I  think  there  can  be  no  question  about  it,  if  you  say  not  a  word  about 
it  in  the  Constitution. 

Mr.  Brown:  The  question  I  want  you  to  answer  is  this:  If  you  say  not  a  word 
about  it,  and  the  construction  put  upon  these  certificates  is  that  they  are  appropria- 
tions to  these  institutions,  would  it  not  be  mandatory  upon  the  Legislature  to  refuse 
to  continue  these  interest-bearing  certificates? 

Mr.  Keezell:  I  do  not  know  how  that  might  be,  but  I  think  it  is  so  clear  that 
this  is  not  an  appropriation  to  the  schools  under  the  present  status,  but  an  appropriate 
tion  to  pay  interest  upon  our  obligations  which  they  hold,  that  I  do  not  see  how  it  can 
admit  of  question  at  all  in  the  minds  of  the  legal  profession. 

Mr.  Hamilton:  If  that  is  your  opinion,  that  it  is  not  an  appropriation  now,  are 
you  willing  to  have  the  language  of  the  report  so  changed  as  to  say  that  the  payment 
of  this  interest  shall  not  be  deferred,  and  permit  an  appropriation  to  sectarian  institu- 
tions? 

Mr.  Keezell:  I  say  the  right  thing  is  to  say  nothing  about  it  at  all,  and  let  it  rest 
just  exactly  as  it  is  now. 

Mr.  Withers:  Mr.  President,  vdth  the  permission  of  the  gentleman  from  Rock- 
ingham, I  will  ask  him  if  this  amendment  would  not  be  leaving  this  question  Vv-ith  the 
Legislature  as  it  is.  The  phraseology  can  be  perfected:  "Provided,  second,  that  this 
section  shall  in  no  wise  compel  or  prohibit  the  General  Assembly  of  Virginia  to  con- 
tinue or  discontinue  the  payment  of  the  interest  on  bonds  held  by  certain  colleges,  etc., 
under  the  act  of  February  23,  1892." 

Mr.  Hamilton:  Mr.  President,  if  I  may  be  allow^ed  to  respond  to  that,  I  would  say 
that  is  a  proper  way  to  express  it. 

Mr.  Keezell:  I  do  not  know  that  I  would  object  to  that,  but  my  opinion  about  it  is 
that  nothing  ought  to  be  said  about  it  at  all.  I  recognize,  Mr.  President,  that  I  am 
somew^hat  in  the  position  here  of  a  lawyer  I  once  heard  of  in  my  section  or  the  State. 
As  I  heard  the  story,  a  certain  John  Smith  was  charged  with  having  taken  from  one  of 
his  neighbors  a  certain  fat  porker  against  the  peace  and  dignity  of  the  Commonwealth 
of  Virginia.  He  was  brought  before  the  bar  of  the  court  to  answer  for  his  delinquency. 
The  prosecuting  attorney  summoned  the  witnesses  and  made  out  a  case  that  he  thought 
was  so  clear  that  there  could  be  no  possibility  as  to  what  the  jury  would  do  when  they 
brought  in  their  verdict.  When  the  jury  retired,  and  after  staying  out  only  a  few 
minutes,  came  in  with  a  verdict  of  "not  guilty,"  he  could  not  give  expression  to  his 
astonishment.  So,  when  the  matter  was  all  over  and  the  prisoner  was  discharged, 
he  went  around  to  him  and  said,  "John,  I  would  like  to  know  how  this  verdict  was 
brought  about.  You  are  free  now.  You  can  tell  me.  It  does  not  make  any  difference." 
"Well,"  said  John,  "I  will  tell  you;  every  one  of  that  jury  had  a  piece  of  the  pork." 
(Laughter.)  When  I  see  gentlemen  bobbing  up  all  over  this  Convention  hall  who  stand 
here  as  the  representatives  of  the  various  institutions  and  various  Interests  which  will 


2014  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

be  affected  by  dealing  with  this  matter  from  a  business  standpoint,  and  as  we  would 
deal  with  it  as  business  men  and  individuals,  I  cannot  help  but  remember  that  story 
about  the  pork.  Of  course,  I  mean  this  only  as  a  pleasantry,  and  do  not  wish  to  be  uii« 
derstood  as  reflecting  for  a  single  moment  upon  any  gentleman  as  to  his  position. 

Now,  Mr.  President,  let  us  look  at  the  question  as  a  matter  of  appropriation.  I 
do  not  believe  in  its  legal  acceptation  it  is  an  appropriation.  In  fact,  however,  it  is 
an  appropriation  of  this  much  money  to  institutions  which  are  prohibited  from  re- 
ceiving it  in  the  very  first  clause  of  this  section.  I  leave  out  the  University  of  Virginia; 
I  leave  out  the  Virginia  Military  Institute;  1  leave  out  William  and  Mary  College;  I 
leave  out  Blacksburg,  because  every  one  of  these  institutions  would  not  be  interdicted 
by  this  provision,  for  the  reason  that  the  State  either  owns  or  controls  them  in  some 
sort  of  way,  and  makes  appropriations  of  public  money  to  them. 

I  say  that  under  this  clause  here  these  State  institutions  would  not  be  affected, 
because  they  do  not  come  under  its  provisions,  and  it  would  not  make  any  difference 
to  the  State  whether  they  enforced  it  or  not,  because  if  these  institutions  were  to  have 
the  same  amount  of  money  they  now  have,  if  they  reduced  the  rate  of  interest  from  6 
per  cent,  to  3  per  cent.,  the  State  would  have  to  increase  the  appropriation  to  an  amount 
Sufficient  to  cover  the  difference. 

I  believe  that  is  the  right  way  to  deal  with  these  matters.  I  believe  we  ought  not 
to  undertake  to  do  what  we  are  doing  in  the  way  of  appropriating  to  our  institutions  in 
any  other  than  a  direct  manner.  I  want  these  gentlemen  to  understand  that  I  am  not 
one  of  those  who  would  object  to  appropriating  money  to  Hampden-Sidney  or  Rich- 
mond College,  or  ony  of  these  other  institutions,  if  they  made  out  a  proper  case,  and  it 
was  a  proper  thing,  in  my  judgment,  that  it  should  go  there.  I  have  no  disposition  to 
interfere  with  or  interrupt  these  institutions  in  any  way,  shape  or  form;  but  we  have 
gone  to  work  here  and,  after  protracted  discussion,  after  a  discussion  urged  and  led 
here  by  the  gentleman  from  Prince  Edward,  the  chairman  of  the  committee,  whose 
duty  it  was  to  defend  the  report  of  the  committee,  and  by  the  gentleman  from  Lancas- 
ter (Mr.  Dunaway),  whose  duty  it  was  probably,  as  a  member  of  that  committee,  to 
uphold  its  findings,  and  declared  solemnly  that  it  shall  be  against  the  principles  which 
we  are  going  to  put  into  our  Constitution  that  any  appropriation  shall  be  made  to  insti- 
tutions other  than  those  owned  and  controlled  by  the  State.  That  is  what  we  have 
said,  and  yet  we  are  asked  in  the  same  clause  to  say  that,  as  to  all  of  those  who  have 
not  been  fortunate  enough  to  get  in,  "You  cannot  get  it  at  all,"  and  to  all  those  who 
are  in,  and  in  up  to  the  armpits,  "We  are  going  to  let  you  stay  in  as  long  as  possible, 
probably  for  all  time." 

Let  us  look  at  the  injustice  which  would  be  done  by  that.  I  do  not  know  whether 
all  you  gentlemen  know  it  or  not,  but  there  are  still  $712,826.36  of  these  old  obligations 
of  the  State  which  have  not  been  refunded,  of  the  character  held  by  the  Miller  Manual 
School;  refunded  under  act  of  1871  there  are  about  $72,000.  The  remainder  of  this  amount 
is  of  the  character  held  by  Washington  and  Lee,  by  Hampden-Sidney,  and  by  a  number  of 
these  other  institutions,  from  which  the  one-third  of  West  Virginia  has  not  been  as- 
signed, and  as  to  which  there  has  been  no  refunding  under  the  act  of  1871,  or  any 
other  acts  of  refunding.  These  are  out  in  the  hands  of  the  public.  Now,  all  in  the 
world  you  would  have  to  do,  only  for  this  provision  here — I  suppose  this  provision 
would  be  effective  to  prevent — in  order  for  anybody  to  evade  the  law  of  the  State,  would 
be  to  sell  to  one  of  the  institutions  of  learning  these  bonds  at  whatever  price  they  could 
get  for  them,  or  give  them,  if  you  please,  and  then  if  we  were  to  mete  out  the  same 
justice  to  the  institutions  which  became  the  possessors  of  those  bonds  which  we  mete 
out  to  these  favored  institutions  which  we  are  endeavoring  to  protect  here  by  this 
clause,  the  State  would  at  once  commence  to  pay  6  per  cent,  upon  the  face  value  of  those 
obligations,  and  it  might  be  added  to  your  debt  on  a  6  per  cent,  basis. 

Is  there  any  reason  why  Roanoke  College,  or  a  number  of  the  other  of  the  worthy 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYENTIOX  OE  VIKGIXIA.  2015 

institutions  of  the  State  I  might  mention  which  might  come  into  the  possession  of 
these  old  obligations  of  the  State,  should  not  be  treated  the  same  as  Hampden-Sidney, 
or  Richmond  College,  or  the  Union  Theological  Seminary,  or  these  various  other  insti- 
tutions which  hold  these  obligations?  And  if  it  had  not  been  for  this  provision  which 
you  undertake  to  legislate  into  this  Constitution,  they  could  have  been  so  treated.  But 
now  you  are  undertaking,  after  you  have  gotten  in  the  control  of  these  institutions  a 
certain  amount  of  the  obligations  of  the  State,  to  lock  the  door  and  to  say  that  they 
alone  are  to  be  the  beneficiaries,  and  it  matters  not  how  worthy  the  object  may  be 
which  these  institutions  can  say  they  want  this  money  for,  no  further  appropriation 
of  State  money  shall  be  made  to  any  of  them.  This  is  what  I  object  to.  I  am  one  of 
those  who  believe  in  carrying  out  contracts  to  the  letter,  I  have  said  and  maintained 
that  I  would  not  ask  these  institutions  to  take  8  per  cent,  bonds  of  the  Commonwealth 
of  Virginia  unless  they  wanted  to  do  it,  and  I  would  not  undertake  to  force  their  pay- 
ment in  any  otlier  way  than  to  come  and  say  to  the  holders  of  these  certificates,  "Here 
is  the  money;  take  it  and  do  what  you  please;  if  you  can  get  10  per  cent  for  it,  I  only 
wish  you  that  much  more  success."  Why,  I  have  heard  gentlemen  charge  it  was  im- 
moral to  undertake  to  pay  off  these  bonds.  I  say  I  have  never  before  in  my  life,  until 
the  consideration  of  this  question  came  up,  heard  it  intimated,  or  a  man  charged  with 
being  immoral  when  he  wanted  to  pay  every  dollar  he  owed,  principal  and  interest,  on 
an  obligation  which  was  overdue. 

Mr.  Meredith:  I  should  like  to  ask  this  gentleman  from  Rockingham  whether  these 
certificates  represent  bonds  that  have  become  past  due? 

Mr.  Keezell:  Every  dollar  of  them  represents  bonds  that  have  become  past  due. 
Let  me  give  you  a  little  of  the  inside  history  as  to  that  act.  Before  the  passage  of  the 
act  of  1892,  these  institutions  each  year  had  to  come  to  the  Legislature  and  ask  a  special 
appropriation  to  pay  them  the  money  which  would  have  been  due  to  them  in  the  way  of 
interest.  It  is  true  the  Legislature — and  I  have  no  criticism  to  make  of  the  Legisla- 
ture about  it — each  year  did  not  undertake  to  pay  them  this,  calling  it  interest,  because 
that  would  have  been  a  discrimnation  between  this  class  of  creditors  and  the  other 
class;  but  they  took  the  obligations  held  by  these  institutions  and  made  a  calculation  of 
what  that  interest  would  amount  to,  and  made  an  appropriation  to  the  institutions  of 
that  sum  of  money;  and  it  was  to  prevent  the  necessity  of  these  institutions  coming  to 
the  Legislature  every  year  and  looking  after  their  particular  interests  that  they  decided 
to  turn  all  these  old  bonds  in  and  to  take  certificates  of  indebtedness  upon  which  the 
State  contracted  to  pay  them  6  per  cent,  interest  as  long  as  they  were  not  redeemed. 
Yes,  and  there  was  a  little  history  hanging  alongside  that,  too.  There  was  an  institu- 
tion in  the  State  that  if  you  will  go  back  and  look  at  the  record  you  will  find  the  first 
time  in  its  history  it  got  in  and  received  some  of  this  appropriation  from  the  State 
was  in  1892.  I  have  no  criticism  to  make  of  the  business  tact  which  the  manager  of 
this  institution  displayed  in  getting  itself  in  along  with  the  balance  of -these  institu- 
tions. 

Mr.  Hamilton:    Will  the  gentleman  be  kind  enough  to  mention  the  institution? 

Mr.  Keezell:  I  will  say  the  first  time  there  ever  appears  in  the  appropriation  bill 
anything  for  the  Randolph  Woman's  College  at  Lynchburg  is  in  1892.  I  say  I  have 
no  criticism  to  make  of  the  gentleman  who  managed  the  finances  to  that  matter,  be- 
cause, as  I  understand,  there  was  some  $49,000  of  bonds  purchased  at  probably 'less 
than  50  cents  on  the  dollar.  That  institution  had  not  been  upon  the  pay  roll  of  the 
State  before,  and  when  the  bill  was  passed  in  1892,  it  was  included  along  with  the 
balance,  and  began  to  receive  6  per  cent,  interest  on  $49,000  and  some  hundred  dollars 
which  had  cost  it  less  than  50  cents  on  the  dollar.  I  say  I  have  no  criticism  to  make 
of  it.  It  was  a  good  business  stroke,  and  the  gentlem.an  who  managed  it  was  worthy 
of  all  credit,  because  he  was  putting  himself  in  no  different  position  from  that  of  the 
other  institutions  which  were  already  included. 


2016 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


All  I  contend  for,  Mr.  President,  is  that  if  it  is  thought  better  to  put  the 
language  in  here,  it  shall  be  plain  that  there  can  be  no  question  that  you  do  not  under- 
take to  prejudice  the  present  status  of  affairs,  I  shall  not  raise  any  objection;  but 
what  I  do  object  to  is  putting  language  in  here  that  can  be  construed  as  prejudicing 
the  rights  of  the  State  under  the  act  of  1892,  which  would  prevent  it,  if  it  saw  fit  and 
had  the  money,  from  paying  off  these  obligations,  every  cent,  principal  and  interest. 

The  gentleman  from  Danville  (Mr.  Withers)  has  spoken  of  an  amendment.  I  do 
not  desire  to  press  my  motion  to  strike  out,  because  I  understand  from  the  parlia- 
mentary status  an  amendment  should  come  prior  to  the  motion  to  strike  out.  All  I 
have  contended  for  and  all  I  want  to  contend  for  is  that  if  we  are  not  going  to  say  any- 
thing in  the  Constitution  about  the  propriety  of  paying  off  these  debts,  we  should  not 
undertake  to  put  such  a  provision  in  as  will  be  construed  as  making  it  a  perpetuity, 
and  that  the  General  Assembly  shall  not  in  any  way,  shape  or  form,  directly  or  by  im- 
plication, be  deprived  of  its  right  to  pay  off  these  obligations  if  it  shall  see  fit  to  do  so. 

Mr.  Hamilton:  Mr.  President  and  gentlemen,  I  think  it  is  desirable,  in  consiaer- 
ing  a  matter  of  this  kind,  in  which  certainly  no  feeling  should  enter,  that  we  under- 
stand the  facts,  especially  before  we  indulge  in  innuendoes  and  reflections  upon  the 
motives  of  other  people.  Before  we  go  into  the  facts  I  wish  to  say  that  it  seems  to 
me,  and  I  trust  I  may  be  entirely  parliamentary  in  saying  it,  that  suggestions  as  to  bad 
motives  of  other  people  and  talking  about  people  flinching  from  principle  when  insti- 
tutions in  which  they  are  interested  are  concerned,  and  getting  pieces  of  pork,  etc., 
are  not  arguments.  Frequently,  gentlemen,  talk  of  that  kind  is  used  when  arguments 
cannot  be  obtained.  Now,  see  how  unjust  suggestions  of  flinching  from  principle  are, 
as  applied  to  some  of  these  institutions.  The  gentleman  who  has  taken  his  seat  has 
admitted,  at  a  late  period  of  his  remarks,  that  there  are  various  State  institutions 
here  which  would  not  be  affected  by  this  matter  one  way  or  the  other,  either  by  keeping 
anything  in  the  way  of  a  modification  in  this  report,  of  leaving  it  out. 

Mr.  Keezell:    I  thought  I  had  made  that  perfectly  clear. 

Mr.  Hamilton:  It  did  not  seem  to  me  so  clear  when  the  remarks  were  made  about 
flinching  from  principle.  Some  of  those  gentlemen  were  gentlemen  who  asked  the 
courtesy  of  being  allowed  to  ask  you  a  question  on  the  floor,  and  they  seemed  to  be  in- 
cluded in  your  remark  as  well  as  others. 

Now,  Mr.  President  and  gentlemen,  my  experience  in  life  in  debate  has  been  this, 
that  the  maxim,  "Honi  soit  qui  mal  y  pense,"  which,  being  translated,  means  those  whoi 
suggest  evil  in  others  generally  think  evil  themselves,  is  by  no  means  a  good  argument, 
and  it  is  almost  always  resorted  to  when  the  ground  for  a  proper  argument  does 
not  exist. 

Wliat  are  the  facts  about  this  matter?  I  know  what  the  facts  are,  because  I  ex- 
amined the  matter  as  a  member  of  a  sub-committee.  The  gentleman  from  Rockingham 
(Mr.  Keezell)  knows  v/hat  the  facts  are.  The  whole  matter  has  been  gone  through 
with  in  one  of  the  committees  here  and  has  been  determined  adversely.  I  can  say  that 
with  authority,  as  he  referred  to  the  fact  on  yesterday. 

On  February  23,  1892— that  is,  prior  to  that  time  and  at  that  time— there  were 
certain  colleges  and  institutions  of  the  State  which  held  bonds  of  the  State.  Some 
of  those  bonds  had  never  been  funded;  some  had  never  been  cut  off  in  the  process  of 
readjustment;  some  of  them  had  been  bought  after  certain  things  were  cut  off;  certain 
portions  were  razed.  At  any  rate,  at  that  time,  which  was  the  time  of  the  so-called 
Olcott  settlement,  the  fourth  or  fifth  readjustment  of  the  debt  of  the  State  of  Virginia, 
the  State  did  act  honestly  and  properly  with  the  colleges  and  institutions  holding  these 
bonds,  and  the  following  institutions  in  the  State  held  the  following  number  of  bonds 
in  dollars: 

Washington  and  Lee  University,  $236,758.23;  the  Virginia  Military  Institute,  $20,000. 
The  amendment  here  has  no  bearing  on  that.    If  I  am  flinching  from  principle  here,  it 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2017 


must  be  on  that  account,  for  I  have  no  other  possible  bias  or  leaning  in  the  matter; 
and  I  want  to  say  right  there  that  that  poor  little  $20,000  was  composed  of  three  funds, 
respect  to  her  debt.  I  say  with  respect  to  the  Miller  Manual  Labor  School,  the  State 
Part  of  it  is  a  fund  given  that  institution  by  Beresford  Hope,  an  English  gentleman,  w^ho 
erected  this  statute  out  here  to  Stonewall  Jackson.  He  gave  it  to  the  school  to  pay 
annually  with  the  income  from  it  for  what  are  called  the  Jackson-Hope  medals  and  as 
a  memento  to  Jackson.  The  remainder  of  that  fund  consists  in  part  of  the  John  K. 
Hilliard  scholarship  money,  an  eminent  merchant  of  London,  who  gave  a  fund  suffi- 
cient to  maintain  one  poor  young  man  at  that  school  each  year;  and  m  nart  a  bequest 
by  Philip  St.  George  Tucker,  of  Virginia,  to  establish  a  scholarship.  So  far  as  that 
120,000  is  concerned,  I  stand  here  to  say  now,  pay  it  off  to-morrow,  if  you  please.  We 
can  invest  it  so  as  to  bring  just  as  much  income.  I  care  nothing  for  it.  But  it  is  not 
involved  in  this  amendment,  and  therefore  I  claim  to  be  exonerated  from  those  people 
who  flinch  from  principle. 

Xow,  let  us  see  which  the  next  one  is.  Emoiw  and  Henry  College,  $G00;  Leesburg 
Academy,  S2,500:  New^  London  Academy,  $6,500:  Randolph-Macon  College,  $19,708;  trus- 
tees of  Randolph-Macon  College  for  Randolph-Macon  Woman's  College  at  Lynchburg, 
$49,600.  Those  gentlemen  who  are  managing  that  seem  to  have  been  peculiarly  immoral 
with  respect  to  this  transaction.  The  University  of  Virginia,  $148,600;  Richmond  Col- 
lege. $54,017.19;  Hall's  Free  School,  $4,800.  I  do  not  know  where  it  is.  I  suppose  some 
good  sensible  man  years  ago  left  a  fund  for  the  promotion  of  free  education  here  in 
Virginia,  and  the  State  took  charge  of  it.  The  Episcopal  Seminary  and  High  School 
at  Alexandria,  Va.,  $59,900:  William  and  Mary  College,  $35,900;  school  commissioners 
of  Prince  William  county,  $1,400;  Hampden-Sidney  College,  $96,353.33;  Union  Theologi- 
cal Seminary,  $137,695;  Miller  Manual  Labor  School,  of  Albemarle  county,  Va.,  $1,044,- 
868.49.  As  to  the  Miller  Manual  Labor  School,  the  State  of  Virginia  was  in  the  posi- 
tion of  fiduciary  w^hen  this  thing  took  place.  She  had  taken  the  bequest  of  that  old 
gentleman  and  had  undertaken  to  act  as  the  trustee  of  the  fund,  and  yet  she  did  put 
that  fund  under  conditions  with  respect  to  its  use,  and  hampered  those  conditions  so 
they  could  not  use  it  even  if  they  did  see  good  opportunities.  The  evidence  was  that 
at  times  the  State  of  Virginia  had  used  that  money  when  she  was  hard  pressed  with 
respect  to  her  debt.  I  say  with  respect  to  the  Miller  ^Janual  Labor  School  the  State 
owes  it  a  peculiar  and  a  high  obligation,  the  obligation  of  a  trustee  who  is  also  the 
beneficiary  of  a  fund — a  trustee  dealing  with  himself. 

Mr.  Meredith:  I  desire  to  ask  the  gentleman  from  Petersburg  whether  there  fs 
any  violation  of  trust  or  breach  of  trust  in  keeping  the  fund  in  bonds  of  this  character 
and  then  redeeming  them. 

Mr.  Hamilton:  I  will  answer  the  gentleman.  Mr.  President,  whenever  a  trustee 
requires  the  fund  under  his  control  as  trustee  to  be  invested  in  his,  the  trustee's,  obli- 
gation, and  puts  conditions  upon  the  free  alienation  of  those  obligations,  when  he  prac- 
tically puts  a  clog  upon  the  free  use  of  the  trust  fund,  and  apparently  at  the  time  for 
the  benefit  of  the  trustee,  I  say  that  is  not  in  accordance  with  my  ideas  of  the  high, 
moral  duty  of  a  trustee.  I  do  not  take  the  ground  that  the  State  of  Virginia  cannot 
pay  these  bonds  off.  I  think  she  can  pay  them  off  any  time  she  pleases.  I  do  not  agree 
with  the  gentlemen  who  appeared  before  the  committee  and  agreed  it  was  immoral 
for  the  State  to  do  it.  My  position  here  is  that  the  Constitutional  Convention  has 
nothing  to  do  with  it;  that  it  is  a  plain  business  transaction  which  the  Legislature 
should  deal  with;  and  if  I  were  in  the  Legislature,  and  the  State  had  the  money  to 
pay  them  off,  I  would  vote  to  pay  the  last  cent  of  them  off. 

But  the  real  question  before  the  Convention  is  not  that.  The  real  question  is 
whether  3'ou  will  put  a  provision  in  this  report  which  may  make  the  Legislature  feel 
in  duty  bound  to  pay  them  off,  and  at  a  time  when  it  would  be  imprudent,  considering 
the  finances  of  the  State,  to  pay  them  off. 

The  next  fund  is  the  Dawson  fund,  held  by  the  State  literary  fund  in  trust  for  edu- 


\ 


2018  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

cational  purposes  in  the  counties  of  Albemarle  and  Nelson,  Virginia.    I  do  not  know 
what  it  is.    I  know  it  is  some  fund  that  some  good  person  has  left  to  the  State  for 
educational  purposes.    The  amount  is  $34,187.61.    The  Virginia  Agricultural  and  Me- 
chanical College  at  Blacksburg,  Montgomery  county,  $44,312. 
Mr.  Keezell:    How  about  the  college  at  Hampden-Sydney? 

Mr.  Hamilton:  I  will  get  to  the  college  at  Hampden-Sidney.  I  shall  not  miss  any 
of  them.  The  Hampton  Normal,  and  the  Polytechnic  Institute,  $172,156.  Both  of  those 
institutions,  Mr.  President,  got  those  bonds  from  money  given  this  State  by  the  United 
States  Government,  and  the  State  gave  it  to  those  institutions  for  educational  purposes, 
in  accordance  with  the  act  of  Congress,  and  guaranteed  5  per  cent,  interest  upon  it  for- 
ever, by  contract.  St.  Joseph's  Academy  Orphan  Asylum,  of  Richmond,  Va.,  $6,600. 
The  total  of  these  bonds  or  certificates  is  $2,466,455.85,  and  the  total  interest  upon  it  is 
$146,330.32.  Most  of  the  bonds  bear  interest  at  6  per  cent.,  a  portion  of  them  at  only  4 
per  cent. 

Now,  the  ground  is  taken  that  the  State  has  no  moral  right  to  redeem  these  bonds. 
After  the  most  careful  consideration,  I  am  bound  to  differ  with  that  view  of  the  sub- 
ject. The  State  of  Virginia  did  put  some  compulsion  on  these  people  owning  these 
bonds  in  1893.  It  said  to  them,  "We  will  not  treat  you  as  badly  as  we  treated  other 
creditors.  We  recognize  you  hold  your  bonds  as  endowments  for  a  high  and  a  good 
purpose;  and  if  you  will  bring  your  bonds  in  here  and  give  them  to  us  and  let  ua 
finance  them,  we  will  give  you  a  certificate  of  indebtedness  which  on  its  face  will  say 
that  as  long  as  you  hold  these  bonds  for  educational  purposes  we  wil  pay  you  the  same 
amount  of  interest  that  your  original  bond  calls  for,  but  we  are  going  to  make  that 
certificate  on  the  face  of  it  non-transferable;  you  shall  not  sell  it,  if  it  goes  up,  and 
invest  the  money  in  something  else  to  make  a  good  investment,  but  we  will  pay  you 
the  interest  on  it  at  the  figure  fixed  as  long  as  you  hold  it  for  educational  purposes; 
but  v/e  reserve  the  right  to  pay  these  bonds  or  certificates  with  interest  whenever  we 
get  ready." 

Now,  I  do  not  care  what  the  moral  obligation  prior  to  that  time  was  on  the  part 
of  the  State  of  Virginia  to  keep  these  bonds  at  the  same  rate  of  interest.  The  State 
did  not  take  anything  off  from  the  principal  at  that  time.  She  said,  "Change  the  form 
of  your  debt,  waive  your  right  to  sell  it,  and  I  will  pay  you  the  full  interest  on  it  until 
I  redeem  it."  The  colleges  and  institutions  accepted  that,  and  by  their  acceptance  of 
the  terms  of  that  act  they  have  no  right  to  come  here  and  say  that  the  State  shall  not 
pay  these  bonds  off,  principal  and  interest,  whenever  she  is  ready  to  do  so. 

I  do  not  care  what  the  prior  equities  were,  what  the  prior  moral  view  or  the  sub- 
ject was.  That  is  undoubtedly,  it  seems  to  me,  a  conclusion  which  must  necessarily 
follow  from  the  institutions  holding  the  bonds  accepting  the  terms  of  that  act.  But, 
Mr.  President,  this  is  a  mole  hill  which  has  been  somewhat  converted  into  a  mountain. 
The  able  gentleman  from  Rockingham  (Mr.  Keezell)  has  been  greatly  disturbed  on  this 
subject,  disturbed  to  such  an  extent  that  as  long  as  there  was  a  possibility  of  attain- 
ing that  view,  he  wished  the  Constitutional  Convention  to  practically  tell  the  Legis- 
lature that  two  and  two  makes  four,  and  that  they  must  pay  these  bonds  off  as  soon 
as  they  can.  I  take  the  ground  that  it  is  not  a  proper  subject  of  constitutional  notice, 
and  there  should  be  no  reference  to  it  in  this  report  except  that  the  character  of  the 
report  which  has  been  adopted  has  made  it  necessary  and  essential  that  you  shall  put 
something  there  to  show  that  you  do  not  mean  to  require  the  Legislature  to  pay  these 
bonds  at  once.  Otherwise  the  educational  report  would  convey  that  meaning  to  some 
minds.  Consequently  some  reference  should  be  made  to  it.  The  amendment  suggested 
by  the  gentleman  from  Danville  (Mr.  Withers)  fully  carries  out  the  idea,  to  my  mind. 
I  had  drawn  an  amendment  myself  which  said  that  the  payment  of  this  interest  should 
not  be  deemed  such  an  appropriation  as  was  above  referred  to,  in  order  to  carry  out 
the  idea  of  the  gentleman  from  Rockingham,  but  he  is  not  willing  to  accept  that. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA, 


2019 


Keezell:  I  will  state  to  the  gentleman  that  I  am  perfectly  willing  to  accept 
the  amendment  of  the  gentleman  from  Danville,  because  I  think  that  creates  a  preju- 
dice neither  one  way  nor  the  other.    That  is  all  I  want, 

Mr.  Hamilton:  Did  not  the  amendment  I  submitted  to  you  express  what  you  told 
me  yourself? 

Mr.  Keezell:  It  may  have  expressed  somevrhat  the  langtiage  I  used,  but  at  the 
same  time  I  am  not  sure  it  expressed  the  views  or  the  Ideas  exactly  I  wished  to  convey. 

Mr.  Hamilton:  In  other  words,  Mr.  President,  if  the  report  is  left  just  as  it  is, 
and  the  language  referring  to  these  bonds  is  stricken  out,  and  no  language  substituted 
in  its  place  showing  that  the  Convention  does  not  mean  to  give  a  premature  order  on 
this  subject,  then  the  matter  will  not  be  left  as  it  has  been  heretofore,  which  is  what 
the  gentleman  from  Rockingham  now  says  he  is  willing  to  do,  but  it  will  be  left  with 
the  intimation  to  the  General  Assembly  that  this  excess  of  interest,  if  I  may  so  express 
it,  is  tantamount  to  an  appropriation  for  purposes  forbidden  by  the  Constitution.  There- 
fore you  must  put  something  in  there  to  prevent  the  status  quo  from  being  changed. 
It  is  essential. 

But  let  us  see,  Mr.  President  and  gentlemen,  to  what  extent  this  matter  will 
affect  the  finances  of  the'  State  of  Virginia.  The  State  to-day  has  not  the  money  to 
pay  off  these  $2,500,000  of  bonds.  It  has  been  said  here  recently  that  the  State  had 
some  8700,000  or  $800,000  of  money  in  its  treasury.  It  did  have  a  month  or  two  ago. 
I  do  not  know  what  it  has  now,  or  w^hat  it  will  have  shortly-;  but  let  us  see  what  effect 
this  drastic  action,  if  it  were  taken,  would  have. 

If  3-0U  pay  3  per  cent,  on  the  $2,390,255  of  bonds  which  bear  6  per  cent.,  it  would 
make  an  apparent  saving  of  871,707.  If  you  paid  3  per  cent,  interest,  instead  of  4,  on 
$76,200,  you  would  apparently  save  $762,  making  $72,469  apparently  saved.  That  is 
the  total  apparent  saving. 

Mr.  Meredith:    Vhat  is  the  amount  of  saving  after  all  these  bonds  are  redeemed? 

:Mr.  Hamilton:  Seventy-two  thousand  four  hundred  and  sixty-nine  dollars,  the  dif- 
ference between  the  present  rate  and  3  per  cent.  Of  that  $72,469,  which  might  be  ap= 
parently  saved,  $21,629  of  it  would  be  saved  from  interest  which  now  goes  to  the  Uni- 
versity of  Virginia,  to  the  Blacksburg  Polytechnic  School,  to  the  Hampton  school,  to 
William  and  Mary  College,  and  to  the  Virginia  Military  Institute.  In  other  words, 
$21,629  of  that  $72,469  would  come  out  of  their  appropriations  or  their  income.  I  think 
it  extremely  probable  that  as  to  those  schools  the  State  of  Virginia  would  make  up  any 
such  deficiency.  If  she  took  it  away,  she  v^'ould  be  taking  it  out  of  one  pocket  and  put- 
ting it  in  the  other.  As  far  as  that  portion  of  it  which  belongs  to  the  Virginia  Poly- 
technic Institute  and  the  Hampton  school  is  concerned,  she  would  have  to  make  up  all 
except  1  per  cent.,  because  she  has  guaranteed  to  the  United  States  Government  5 
per  cent,  on  the  money. 

Mr.  Meredith:  Could  not  these  colleges  take  money  received  from  these  bonds 
and  invest  them  in  5  per  cent,  bonds  with  ease,  which  bonds  would  be  free  of  taxation 
and  the  State  would  only  have  to  contribute  1  per  cent.? 

Mr.  Hamilton:  I  will  ask  the  gentleman  if  he  does  not  know  he  cannot  buy  good 
5  per  cent,  bonds  at  par.  I  think  the  gentleman  and  I  understand  each  other  at  that 
point.  You  cannot  huy  good  5  per  cent,  bonds  at  par,  at  present;  and  that  is  one  of  the 
troubles  about  this  matter.  It  is  true  these  institutions  consented  to  this  act,  mark 
you,  but  it  was  a  consent  under  compulsion  to  some  extent.  These  institutions  have 
been  prevented  in  the  time  past,  when  securities  were  not  so  high  and  when  they  could 
have  gotten  good  5  and  6  per  cent,  securities  to  put  their  endovvTuents  in,  and  the  proba- 
bilities are  that  whatever  they  had  paid  at  those  periods,  something  like  dve  or  ten  years 
ago,  if  wisely  invested,  would  have  as  much  increased  in  value  as  have  the  State  bonds. 

I  sav  the  State  will  not  have  to  make  up  this  $21,000  which  would  be  taken  from 
the  income  of  these  purely  State  institutions,  but  the  extreme  probabilities  are  that  it 


2020 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA, 


will  do  it,  and  I  presume  it  would  do  it,  certainly  as  to  Blacksburg  and  the  Hampton 
school,  it  would  have  to  make  up  all  except  1  per  cent,  of  ft,  and  they  control  much 
the  larger  portion. 

I  am  aware,  Mr.  President,  that  talk  about  figures  is  a  little  tiresome,  but  I  trust 
the  members  of  the  Convention  will  give  me  their  attention  for  a  few  moments  longer, 
unless  I  have  exceeded  my  time. 

If  you  deduct  the  $21,629,  you  have  $50,840  apparently  saved.  Now,  the  next 
$1,067  you  save  would  be  saved  on  the  Dawson  fund  and  the  Prince  William  School 
fund.  Of  both  of  those  the  State  is  trustee.  It  was  her  duty  to  manage  them  to  the  best 
advantage.  That  would  leave  $49,773.  The  next  thing  you  could  cut  off  and  would  cut 
off  would  be  $29,840  from  the  Miller  Manual  Labor  School.  In  that  case  the  State  is  the 
trustee.  She  has  had  the  highest  obligations  and  duties  to  perform  in  every  respect, 
and  if  there  is  any  merit  in  an  institution  at  all,  I  do  not  suppose  there  is  any  insti- 
tution in  the  South,  or  in  the  world,  as  far  as  that  is  concerned,  that  is  better  managed 
or  a  greater  credit  to  the  State  or  a  greater  benefit  to  mankind,  or  those  who  are 
permitted  to  attend  it,  than  that  Miller  Manual  Labor  School.  I  do  not  suppose  any 
man  ever  managed  an  institution  like  Captain  Vav/ter  has  managed  that  one.  It  is 
something  so  magnificent  as  tO'  appeal  to  the  highest  admiration  of  anybody  whO'  knows 
anything  about  it. 

So  that  unless  you  take  this  saving  from  the  State  institutions  absolutely  and 
the  Miller  School,  and  these  four  school  funds  that  people  have  given  and  that  the 
State  has  taken  charge  of,  you  reduce  your  saving  down  apparently  to  $19,933.  You 
cannot  pay  these  bonds  off  with  any  money  you  have  on  hand.  You  might  pay  $700,000 
of  them  off  by  depleting  your  treasury  and  leaving  yourself  with  nothing;  and  yet 
there  are  all  sorts  of  things  people  want  that  money  for  that  is  in  the  treasury.  Pen- 
sions is  one;  reduction  of  taxes  is  another.  Heaven  only  knows  how  quickly  it  will  go; 
but  suppose  you  can  use  the  $700,000  for  that  purpose,  then  you  would  have  to  sell 
nearly  $1,800,000  worth  of  State  bonds  to  raise  the  money  to  pay  these  bonds  off  with. 

My  belief,  Mr.  President,  and  I  think  it  is  borne  out  by  the  experience  of  people 
who  know  something  about  such  matters,  is  that  if  it  were  known  that  instead  of  the 
State  of  Virginia  buying  her  bonds  every  three  of  four  months  for  her  sinking  fund 
to  a  considerable  amount,  she  was  going  to  make  a  sale  of  $1,800,000  of  new  bonds,  they 
would  depreciate  10  per  cent.,  and  you  could  buy  them  at  90,  where  they  were  not  more 
than  a  year  ago. 

Mr..  Meredith:  Do  I  understand  you  to  say  that  if  it  were  known  the  State  was 
going  to  sell  that  amount  of  bonds,  not  immediately,  not  at  once,  but  in  instalments, 
in  one.  two,  three,  four,  and  five  years,  and  thereby  reduce  her  interest  account,  it  would 
depreciate  her  securities? 

Mr.  Hamilton:  My  belief,  Mr.  President,  is  that  any  making  of  new  bonds  by  the 
State  of  Virginia  and  any  offering  for  sale  by  the  State  of  Virginia  of  any  considerable 
quantity  of  new  bonds,  I  do  not  care  for  what  purpose,  would  greatly  injure  her  credit 
and  depress  the  value  of  her  bonds. 

Acting  on  that  belief,  sir,  and  considering  it  carefully  as  I  would  such  a  business 
transaction  in  other  matters,  the  State  would  have  to  sell  those  $1,800,000  of  bonds  at 
about  10  per  cent,  reduction  from  par.  If  that  is  true,  and  you  calculate  the  interest 
on  what  she  loses,  the  difference  between  par  and  the  sale  price,  deducted  from  what 
she  apparently  saved,  about  $19,000,  you  reduce  the  ultimate  saving  from  all  this  mat- 
ter which  might  come  to  the  State  of  Virginia  to  less  than  $9,000.  That  is  the  sum  and 
substance  of  what  might  be  hoped  from  it.  But,  Mr.  President,  the  merits  of  the  case 
are  apparently  not  up  here.  If  the  language  of  the  report,  to  which  I  can  see  no  ob- 
jection, and  which  I  think  is  essential  to  prevent  a  presumption  against  the  people  hold- 
ing these  bonds,  is  not  acceptable,  then  I  would  suggest  either  the  amendment  offered 


DEBATES  Of  THE  COXSTITETIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2021 


by  the  gentleman  from  Danville,  which,  according  to  my  recollection,  seems  clear  and 
definite,  or  I  would  suggest  this  language: 

Second,  that  payment  of  interest  upon  the  certificates  of  indebtedness  issued  un- 
der the  act  of  the  General  Assembly,  passed  February  23_.  1892,  relating  to  bonds 
held  by  schools  and  colleges,  shall  not  be  deemed  such  an  appropriation. 

If  gentlemen  claim  here  that  the  payment  of  interest  on  these  bonds  in  excess  of 
interest  at  which  the  State  could  borrow  money  is  not  an  appropriation,  they  ought  not 
to  object  to  saying  that  so  clearly  in  this  paper  as  to  leave  no  doubt  on  the  point. 

Mr.  Meredith:  Do  you  think  your  language  would  have  more  moral  effect  upon 
the  Legislature  to  preserve  the  present  status  than  the  language  of  the  committee? 

Mr.  Hamilton:  I  do  not  think  so.  On  the  contrary,  I  submitted  this  language  to 
the  gentleman  from  Rockingham,  and  although  he  says  he  cannot  go  into  details  and 
:  irs  like  lavwers,  I  think  he  can  split  pretty  fine  when  his  views  run  that  way. 
He  did  not  see  any  objection  to  the  language  except  that  he  could  not  take  anything. 
He  wanted  it  to  stay  without  any  objection. 

Mr.  Withers:  As  I  understand,  Mr.  President,  the  difference  between  the  contend- 
ing parties  in  this  Convention  is  simply  this:  One  wants  this  interest  discontinued; 
the  other  wants  it  continued:  but  the  merits  of  the  case  are  not  involved  here.  It  is  a 
question  of  what  the  language  of  the  Committee  on  Education  and  Public  Instruction 
means.  Those  of  us  who  take  the  view  that  the  bonds  ought  to  retire  gradually  fear 
that  it  means  that  having  laid  down  a  general  principle  that  no  appropriation  shall 
be  made  to  certain  sorts  of  institutions,  it  cites  two  exceptions  thereto,  and  we  contend 
that  the  citing  of  the  exceptions  is  an  approval  of  the  same  and  will  be  so  construed  by 
the  General  Assembly.  All  we  ask  for  is  that  the  language  of  the  committee's  report 
shall  in  no  wise  affect  hereafter  any  action  of  the  General  Assembly  on  this  subject. 
That  is  all  I  am  striving  to  do  in  that  amendment.  I  am  not  trying  to  get  a  position 
of  advantage  over  the  gentlemen  who  differ  with  me  as  to  the  payment  of  this  interest; 
but  I  simply  want  to  save  ourselves  from  the  advantage — even  though  it  be  uninten- 
tional, and  I  am  perfectly  willing  to  believe  that  it  is,  and  do  not  question  that  it  is — 
that  I  am  afraid  the  language  of  the  report  of  the  committee  will  give  to  these  gentle- 
men who  hold  the  opposite  view  as  to  the  payment  of  interest,  to-wit:  that  when  I  lay 
down  any  rule  of  government  or  of  conduct,  or  any  principle  that  should  govern  men  or 
nations  or  peoples  in  their  line  of  conduct  and  action,  when  I  say  this  shall  apply  to  a 
certain  action  or  to  a  certain  thing.  I  approve  the  exception  w^hi'ch  I  have  cited  to 
which  the  rule  does  not  apply.  Therefore,  vhen  we  say  a  man's  line  of  conduct  should 
be  thus  and  so,  but  this  principle  shall  not  affect  his  breach  of  it  in  a  certain  instance, 
we  unquestionably  approve  the  breach,  in  my  humble  opinion. 

Therefore,  having  said  the  State  should  not  make  appropriations  to  institutions 
owned  or  controlled  by  others  than  the  State,  but  that  this  principle  which  we  lay  down 
shall  not  apply  to  an  appropriation  to  William  and  Mary  College  and  to  certain  inter- 
ests paid  on  certain  bonds  held  by  certain  schools  and  colleges  and  allowed  by  a  cer- 
tain act  of  the  General  Assembly,  I  say  to  the  gentlemen  of  the  Convention  that  when 
we  make  the  exception  in  favor  of  William  and  Mary,  it  is  an  implied  approval  of 
that  exception,  and  when  we  make  the  exception  as  to  the  interest  on  these  bonds,  it  is 
an  approval  of  the  act  allowing  the  continuance  of  that  interest.  All  we  desire  is  to 
say  that  nothing  we  do  in  this  Convention  regarding  that  as  a  legislative  matter  shall 
be  construed  as  either  compulsory  or  prohibitory  upon  the  Legislature  to  take  suc"h 
action  as  it,  in  its  wisdom,  may  see  fit  to  take. 

Mr.  Dunaway:  Mr.  President,  so  far  in  this  discussion  nothing  has  been  said  by 
any  member  of  the  Committee  on  Education.  I  wish  to  say  a  few  words  before  the  vote 
is  taken,  and  in  the  first  place,  in  regard  to  remarks  that  were  made  by  our  esteemed 
friend  from  Rockingham  (Mr.  Keezell).    He  seems  to  me  to  have  allowed  himself  to 


2022 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOJT  OF  VIRGINIA. 


fall  into  two  mistakes,  the  first  with  regard  to  the  intent,  the  feelings,  the  motives  ot 
the  members  of  the  Committee  on  Education.  That  was  a  beautiful  story  he  told 
about  the  fat  porker,  but  the  members  of  the  committee  resent  the  application  of  the 
story  to  themselves.   We  feel  that  we  have  no  portion  of  that  pork. 

The  conduct  of  the  committee  is  very  clear  upon  this  subject.  In  the  first  place, 
after  they  had  made  their  recommendation  and  the  report  came  into  the  Convention,  it 
was  on  the  motion  of  the  committee  that  the  subject  was  passed  by  in  order  that  it 
might  be  thoroughly  considered  by  our  Committee  on  Taxation  and  Finance, 

Those  gentlemen  have  considered  it.  They  have  determined  to  make  no  recommen- 
dation in  regard  to  it;  and  now  the  question  is  here,  and  it  is  a  construction  of  words. 
So  far  as  we  are  concerned,  sir,  we  adhere  to  the  principle  and  cannot,  for  any  per- 
sonal consideration,  be  made  to  seek  an  advantage  for  the  violation  of  that  principle. 
That  seems  to  be  the  insinuation  of  the  gentleman  from  Rockingham.  But  we  are  just 
as  earnestly  opposed  as  he  can  be,  or  as  any  man  upon  this  floor  can  be,  to  appropria- 
tions made  by  the  State  to  any  other  institution  than -those  that  are  owned  or  controlled 
by  the  State;  and  I  would  go  further  than  any  gentleman  has  gone  here  upon  that  sub- 
ject, and  say  "owned  and  controlled"  by  the  State  of  Virginia. 

So  we  are  clear  upon  that  subject.  I  am  not  concerned  as  a  member  of  a  board  of 
visitors  of  any  of  these  institutions  in  favor  of  any  one  of  them.  There  is  an  institu- 
tion owned  by  the  Christian  denomination  of  which  I  am  a  member,  but  we  would 
not  ask  that,  if  this  excess  of  interest'  shall  be  construed  as  an  appropriation  to  that 
college,  a  single  cent  of  that  money  should  be  paid. 

Now,  the  question  arises  here,  a  question  that  does  not  properly  belong  to  this 
hour  and  this  Convention,  and  yet  it  has  been  raised:  Is  this  excess  of  interest  an  ap- 
propriation in  the  proper  sense  of  the  word  to  these  denominational  schools?  If  it  is 
the  judgment  of  the  Convention  that  it  is  such  an  appropriation,  then  I  would  go  as 
far  as  the  gentleman  from  Rockingham  or  the  gentleman  from  Danville,  or  any  other 
gentleman,  and  I  would  put  in  express  terms  in  the  Constitution  that  this  appvopria- 
tion  should  not  be  made,  for,  as  I  say,  I  adhere  to  the  principle;  but  I  am  one  of  those 
who  differ  with  some  gentlemen  here,  that  this  is  not  an  appropriation  to  those  insti- 
tutions. 

In  regard  to  another  matter:  The  other  mistake  that  has  been  made  by  the  gentle- 
man from  Rockingham  is  a  misconstruction  of  words.  The  committee  acted  intelli- 
gently upon  this  matter.  It  weighed  the  words  it  put  in  this  report,  and  while  I  have 
no  objection  to  the  principle  sought  to  be  enunciated  by  the  proposed  amendment  of  the 
gentleman  from  Petersburg  or  the  gentleman  from  Danville,  I  say  that  both  of  those 
amendments  are  unnecessary,  and  I  shall  vote  against  both  of  them  and  stand  by  the 
language  of  the  committee.  I  do  not  disagree  with  them  at  all  about  the  principle,  but 
I  say  there  is  no  necessity  for  it,  and  all  this  argument  grows  out  of  a  misconstruction 
of  what  I  consider  to  be  very  plain  language. 

The  gentleman  from  Rockingham  (Mr.  Keezell)  says  he  would  not  have  this  Con- 
vention say  anything  about  it;  he  would  strike  this  out. 

I  want  to  say  this,  that  in  saying  nothing  he  says  a  great  deal.  Suppose  this  pro- 
viso were  not  put  in,  or  suppose,  being  in,  it  should  be  stricken  out,  what  would  be  the 
construction  put  upon  it?  Why,  all  gentlemen  who  hold  views  like  the  gentleman  from 
Danville  and  the  gentleman  from  Rockingham,  when  the  matter  coraos  up  in  the  Gen- 
eral Assembly  of  Virginia,  will  read  their  interpretation  into  the  Constitution:  This  is  an 
appropriation,  and  the  Constitution  says  the  appropriation  shall  not  be  made,  and  there- 
fore the  General  Assembly  is  compelled  to  pay  these  bonds  by  raising  the  money  some- 
where, perhaps  by  selling  new  bonds,  perhaps  at  great  inconvenience  to  the  State;  but 
it  would  be  construed,  if  we  read  those  views  into  the  Constitution,  as  a  constitutional 
requirement  upon  the  Genernl  Assembly  to  pay  these  bonds  in  order  to  get  rid  of  mak- 
ing an  appropriation. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


2023 


I  say  if  nothing  were  said  here,  if  this  proviso  were  not  put  in,  then  it  would  be 
considered  as  mandatory  upon  the  General  Assembly,  provided  the  members  of  the 
General  Assembly  had  such  views  in  regard  to  appropriations  as  are  entertained  by 
the  gentleman  from  Rockingham.  It  was  simply  to  avoid  that  that  your  committee 
put  in  a  proviso  so  as  to  leave  the  matter  just  where  it  is.  It  expresses  no  opinion, 
and  I  do  not  want  to  express  an  opinion.  I  do  not  want  the  Convention  to  express  an 
opinion  that  would  in  any  wise  hamper  the  General  Assembly  of  Virginia.  I  want  it  to 
be  left  entirely  free,  and  as  for  the  greater  portion  of  the  remarks  of  the  gentleman 
from  Rockingham,  and  the  greater  portion  of  the  remarks  of  the  gentleman  from  Peters- 
burg in  reply,  as  he  himself  will  admit^  they  are  not  proper  to  this  forum.  It  is  not  a 
question  here  of  whether  these  bonds  are  redeemable  at  the  mere  pleasure  of  the  Gen- 
eral Assembly  or  not.  If  that  were  a  question,  then  I  might  have  a  great  deal  to  say 
upon  if  it  I  were  in  a  different  forum.  I  do  not  agree  that  these  bonds  are  redeem- 
able at  the  mere  pleasure  of  the  State,  but  I  say  as  that  matter  is  not  properly  before 
the  Convention,  I  will  not  attempt  to  argue  it. 

All  I  have  to  say  in  conclusion  is  that  your  committee  did  not  wish  to  express  any 
opinion  at  all,  and  merely  put  in  a  proviso  as  a  saving  clause,  so  that  the  section,  if 
adopted  without  it,  should  not  be  considered  as  mandatory  upon  the  General  Assembly 
to  make  paj-ment  of  these  bonds. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tlemen from  Danville  (Mr.  Withers). 

The  amendment  was  agreed  to. 

Mr.  Brown:    I  move  the  adoption  of  the  section  as  amended. 

Mr.  Eggleston:  ]\Ir,  President.  I  simply  desire  to  call  the  attention  of  the  commit- 
tee to  what  seems  to  be  an  oversight.  It  will  be  observed  that  in  this  report  the  district 
is  the  unit  for  taxing  purposes,  the  districts  being  allowed  to  levy  taxes  for  the  support 
of  schools.  The  latter  part  of  this  section  overlooks  that  fact.  The  third  proviso  reads: 
"Provided,  third,  that  cities,  towns,  and  counties  may  make  appropriations  to  non-secta- 
rian schools."    It  should  read,  "cities,  towns,  counties  and  districts.''' 

I  move  to  strike  out  the  word  '''and"'  before  "counties,'"  in  line  10^  and  insert  after 
the  word  "counties"  the  words  "and  districts." 

The  motion  was  agreed  to. 

Mr.  Eggleston:    Then  at  the  end  of  the  section,  Mr.  President,  I  propose  a  similar 
amendment,  to  add  the  words  "or  school  districts." 
The  amendment  was  agreed  to. 

Mr.  Eggleston:  Mr.  President,  in  Committee  of  the  Whole,  in  the  first  part  of  this 
section,  the  original  section  was  reported  by  the  committee  read:  "No  appropriation  of 
public  school  funds  shall  be  made  to  any  school  or  institution  of  learning  not  owned  or 
exclusively  controlled  by  the  State  or  some  political  sub-division  thereof," 

Those  words,  "or  some  political  sub-division  thereof,"  it  seems  to  me  ought  not  to 
have  been  stricken  out.  I  call  the  attention  of  the  Convention  to  the  fact  that  under 
this  report  all  of  the  tax  levied  for  public  school  purposes  in  the  State  has  to  go  to 
common  or  grammar  schools,  that  is,  to  schools  of  the  lowest  grade,  and  it  makes  no 
difference  how  much  surplus  the  State  may  have  at  any  time  it  cannot  under  this 
Constitution  appropriate  one  dollar  of  that  surplus  to  school  purposes  unless  it  gives  it 
to  these  higher  institutions  of  learning. 

Mr.  President,  it  seems  to  me  since  the  State  has  gone  into  this  question  of  public 
education  it  ought  to  provide  education  which  is  going  to  be  of  some  service  to  the 
people.  I  do  not  think  a  man  is  educated  i'f  he  barely  learns  to  read  and  write.  You 
do  not  send  him  to  school  to  teach  him  to  barely  read  and  write.  If  that  be  the  case, 
why  are  you  maintaining  the  universities  and  these  higher  institutions?  You  send  him 
there  to  learn  to  think,  and  it  is  the  policy  of  the  public  school  system  of  every  State 
in  the  Union  to  enlarge  the  common  schools  and  not  to  have  so  many  of  them,  and  to 


2024  DEBATES  OF  THE  COXSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

make  them  better  schools.  It  seems  to  me  it  would  tie  the  hands  of  the  State  by  strik- 
ing out  that  clause,  which  will  forbid  the  appropriation  of  one  dollar  of  State  funds  to 
any  school  in  the  State  unless  it  be  to  these  colleges;  and  if  you  do  that,  then  same 
reasoning  that  would  allow  you  to  do  it,  or  lead  you  to  do  it,  ought  to  lead  you  to  in- 
sert in  this  provision  a  clause  which  will  not  provide  appropriations  for  these  higher 
institutions,  but  should  absolutely  forbid  them. 

The  President:  The  question  is  on  the  amendment  of  the  gentleman  from  Char- 
lotte (Mr.  Eggleston)  to  restore  the  words  "or  some  political  sub-division  thereof,"  in 
lines  3  and  4  of  Section  11. 

The  amendment  was  agreed  to. 

Mr.  Gillespie:  I  move  to  further  amend  this  section  by  striking  out  beginning  with 
the  word  "provided,"  in  line  4,  down  to  the  word  "Mary,"  in  line  6. 

The  amendment  was  rejected.  ,  . 

Mr.  Mcllwaine:    I  move  that  Section  11,  as  amended,  be  adopted.  , 
The  motion  was  agreed  to. 

Mr.  Mcllwaine:    I  move  that  the  report  be  adopted  as  a  whole,  and  that  it  be  printed 
and  referred  to  the  Committee  on  Final  Revision. 
The  motion  was  agreed  to. 
(Applause.) 

On  motion  of  Mr.  William  A.  Anderson,  the  Convention  adjourned  until  to-morrow, 
Tuesday,  January  28,  1902,  at  10  o'clock  A.  M. 


TUESDAY,  January  28,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
±*rayer  by  Rev.  W.  W.  Lear,  D.  D. 

On  motion  of  Mr.  Brooke,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Organiza- 
tion and  Government  of  Cities  and  Towns,  Mr.  Withers  in  the  chair. 

The  Chairman:  The  pending  question  before  the  Committee  of  the  Whole  is  the 
motion  of  the  gentleman  from  Louisa  (Mr.  Gordon)  to  reconsider  the  amendment  of- 
fered by  the  gentleman  from  Norfolk  (Mr.  Thom)  to  Section  7,  which  was  defeated. 

Mr.  Stuart  offered  a  resolution  relating  to  the  elective  franchise  which  was  appro- 
priately referred. 

The  Secretary  will  read  the  amendment,  the  vote  rejecting  which  is  moved  to  be 
reconsidered.  ~  ' 

Insert  after  the  word  "city,"  in  line  16  of  Section  7,  the  following:  "May,  in  a 
manner  to  be  prescribed  by  law,  increase  or  diminish  the  number  and  change  the 
boundaries  of  the  wards  or  similar  sub-divisions  thereof,"  and  stri'ke  out,  after  the 
word  "city"  the  rest  of  the  section. 

Mr.  Thom:  Mr.  Chairman,  when  this  matter  was  before  the  committee  several  days 
ago  I  hesitated  very  much  to  take  the  time  of  the  committee  by  any  elaborate  state- 
ment, and  so  contented  myself  with  a  very  brief  outline  of  what  appeared  to  me  the 
very  plain  consideration  which,  in  my  judgment,  should  control  this  matter.  The  ad- 
verse action  of  the  committee  upon  it  makes  it  essential  for  me  in  the  interest  of  my 
people  to  bring  this  matter  up  again.  I  do  so  with  the  utmost  reluctance,  because  I 
have  attempted  as  much  as  possible  to  avoid  consuming  the  time  of  the  committee. 

This  is  a  most  important  question  to  the  cities  of  the  State.  It  may  completely 
control,  if  left  in  its  present  shape,  the  political  destinies  of  the  cities  in  a  most  unfor- 
tunate manner.    The  proposition  is  to  require  the  councils  to  be  apportioned  among  the 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2025 


various  wards  of  the  cities  in  accordance  with  the  population.  The  whole  method  of 
city  government  in  Virginia  for  the  past  thirty  years  has  been  adapted  to  the  exactly 
contrary  principle.  Let  me  ask  the  serious  attention  of  gentlemen  to  this  consideration. 
Take  a  city  of  the  State  where  the  African  population  is  40  per  cent,  of  the  whole 
population.  Now,  that  population  is  not  equally  distributed  over  the  whole  city,  but  it 
accumulates  in  one  particular  section  of  the  city,  and  as  it  does  so  the  white  vote 
leaves  that  section.  It  may  not  leave  entirely,  but  for  the  most  part  it  does.  Now,  no 
matter  ho^  you  may  change  the  lines  of  your  ward,  if  you  base  the  representation  in 
the  councils  on  the  population,  you  are  necessarily  forced,  even  with  a  change  of  your 
suffrage  law,  to  give  a  vastly  disproportionate  influence  in  the  councils  of  the  cities  to 
the  white  vote  in  those  negro  wards. 

This  is  a  crying  evil  in  the  city  of  Norfolk.  It  applies  as  well  to  the  city  of  Peters- 
burg, and  I  am  authorized  to  speak  for  one  of  the  delegates  of  that  city  in  saying  so. 
It  is  essential,  in  order  to  keep  the  government  of  our  cities  in  the  hands  of  intelligent 
men,  whether  yeomanry  or  not,  but  of  the  intelligent  white  people  of  the  city,  that 
there  should  not  be  a  hard  and  fast  rule  in  the  matter  of  the  apportionment  of  the  rep- 
resentation in  the  councils  according  to  the  population.  This  is  essential,  gentlemen, 
and  there  should  be  no  action  on  the  part  of  the  committee  based  upon  an  isolated  griev- 
ance in  one  particular  city.  Of  course,  I  am  impressed  with  the  difficulty  which  my 
friend  from  Richmond  experiences  about  his  Clay  ward.  I  know  nothing  of  the  facts 
except  what  I  have  heard  upon  this  floor,  but  I  am  told  that  there  is  one  of  the  great, 
white  wards  of  the  city  of  Richmond  which  does  not  have  its  proper  proportion  of  rep- 
resentation in  the  council.  That  may  be  true.  On  the  other  hand,  the  contention  of 
the  other  gentleman  from  Richmond  (Mr.  Meredith)  may  be  true.  But  whatever  may 
be  the  fact,  whether  there  is  a  grievance  here  in  the  city  of  Richmond  or  not,  the  effect 
of  that  grievance  ought  not  to  be  to  put  a  rule  into  the  Constitution  of  this  State  which 
will  hand  over  the  council  of  the  other  cities  to  the  most  objectionable  proportion  of  the 
population. 

I  want  to  impress  upon  you,  gentlemen,  that  this  matter  is  not  brought  up  for  any 
but  the  most  overwhelming  reasons,  and  your  reconsideration  is  asked  of  it  for  purposes 
which  must  appeal  to  your  own  experience  and  to  your  own  observation.  I  ask  you  to 
leave  that  question  to  be  dealt  with  according  to  some  elastic  rule,  so  that  the  Legis- 
lature of  the  State  may  authorize  the  apportionment  of  the  membership  in  city  coun- 
cils according  to  such  rules  as  the  public  necessity  may  from  time  to  time  require,  and 
not  to  say  that  a  mandamus  may  issue  directing  that  the  apportionment  of  representa- 
tions in  the  city  councils  shall  be  made  in  every  case  according  to  the  population  of  the 
various  wards,  as  they  may  from  time  to  time  exist.  It  is  impossible  to  divide  these 
wards  up  according  to  any  line  which  would  relieve  this  evil.  It  is  essential  and  inher- 
ent in  the  very  nature  of  the  proposition,  where  you  have  40  per  cent,  of  your  negro 
population  congregated  in  one  section  of  your  city  there  must  be  some  elasticity  in  your 
Legislature  and  in  your  council  to  deal  with  that  problem  on  some  other  basis  than  that 
of  mere  population. 

I  ask.  therefore,  gentlemen,  that  you  will  consider  the  trouble  in  which  these  citi'es 
find  themselves  and  will  reconsider  the  vote  by  which  you  rejected  this  amendment. 

Mr.  Pollard:  Mr.  Chairman  and  gentlemen  of  the  committee,  it  will  be  remembered 
when  this  matter  was  under  consideration  by  the  Committee  of  the  Whole  before,  the 
amendment  of  the  gentleman  from  Norfolk  was  overwhelmingly  voted  down.  On  that 
occasion  I  called  attention  of  the  gentlemen  of  the  committee,  by  way  of  illustration, 
to  the  great  hardship  which  was  worked  in  this  city  by  a  violation  of  this  principle  of 
government.  I  referred  to  our  condition  simply  for  the  purposes  of  illustration.  On 
that  occasion  I  did  not  know  that  the  same  condition  of  affairs  existed  in  many  other 
cities  of  the  Commonwealth.  I  called  your  attention  to  the  fact  that  in  our  city  the 
wards  are  represented  in  the  council  each  by  the  same  number  of  representatives;  that 
128 — Const.  Deb. 


2026  DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

our  wards  are  unequal  in  population;  that  some  wards  having  but  one-third  the  popu- 
lation of  others  have  exactly  the  same  representation  in  the  city  councils.  I  called 
your  attention  to  the  fact  that  by  virtue  of  this  unjust  rule  the  city  of  Richmond  is  and 
has  been  governed  by  a  minority  of  her  people  for  the  last  twenty  years. 

If  you  draw  a  line  north  and  south  on  Sixth  street  in  this  city,  you  will  find  that 
the  population  lying  east  of  Sixth  street  has  a  majority  of  representation  in  the  council, 
while  they  have  only  30,000  population,  55,000  of  population  lying  on  the  west  side  of 
Sixth  street.  In  other  words,  a  minority  of  the  people  of  this  city  have  a  majority  of 
the  representation  in  the  city  council.  It  is  so  in  many  of  the  other  cities  of  the  Com- 
monwealth. If  you  will  take  the  last  census  report,  you  will  find  this  is  true  in  nearly 
every  city  of  Virginia.  Now,  my  proposition  is  that  the  Constitution  of  the  State 
should  guarantee  majority  rule  to  every  city  of  the  Commonwealth;  that  it  should  guar- 
antee to  every  citizen  of  every  municipal  corporation  of  the  State  equal  voice  in  the 
management  of  city  affairs. 

Mr.  "Willis:  The  gentleman  says  that  he  is  in  favor  of  majority  rule  for  every 
city  and  town.  Suppose  there  should  be  a  majority  of  negroes  in  a  city  or  town, 
would  he  still  favor  majority  rule  in  that  town? 

Mr.  Pollard:  I  do  not  think  there  is  any  danger  of  negro  rule  in  any  city  in  the 
Commonwealth,  especially  under  any  suffrage  law  that  this  Convention  will  pass. 
Mr.  Chairman,  if  it  was  not  for  the  fact  that  the  gentleman  from  Norfolk  (Mr.  Thom) 
Is  such  a  serious  gentleman  I  would  think  he  was  joking  in  intimating  danger  of 
negro  domination.  If  the  proposition  he  has  just  laid  down  had  been  uttered  by  my 
jovial  friend  from  Hanover  (Mr.  Carter),  I  would  have  felt  it  was  a  joke,  but  inas- 
much as  it  was  made  by  the  serious  gentlem-an  from  Norfolk  I  am  going  to  under- 
take to  answer  that  later  on. 

Mr.  Willis:  If  the  gentleman  will  permit  me,  I  will  say  the  conditions  in  my 
city  are  just  as  serious  as  those  stated  by  the  gentleman  from  Norfolk  to  exist  in  his 
city,  and  I  feel  just  as  he  does  about  the  matter. 

Mr.  Pollard:    I  will  answer  the  objection  of  the  gentleman  later  on. 

The  gentleman  from  Norfolk  has  said  it  would  endanger  white  domination  in  his 
city.  Let  us  see  what  the  editor  of  the  Landmark,  in  his  own  city,  says  about  the 
condition  of  affairs  there.  The  trouble  about  this  thing,  gentlemen,  is  that  the  cities 
ask  from  you  a  right  to  violate  a  great  principle  in  order  that  they  may  use  it  against 
the  negro,  and  after  you  give  them  this  power  they  turn  around  and  use  the  infernal 
machine  on  their  white  fellow-citizens.  Look  at  the  census  returns  of  the  population 
of  each  ward,  and  you  will  see  that  the  discriminations  are  not  against  the  negro 
wards,  but  against  the  white  wards.  We  gave  them  this  privilege  of  apportioning  the 
representation  among  the  wards  of  the  city  to  protect  this  city  against  the  negro  rule, 
and  what  did  they  do?  They  gave  the  negroes  of  the  city  a  larger  representation  in 
the  council  than  the  white  people. 

Mr.  Brooke:  I  just  wish  to  make  it  clear  that  the  gentleman  is  speaking  of 
the  city  of  Richmond.  'We  have  not  done  that  down  our  way. 

Mr.  Pollard:  I  will  show  the  gentleman  that  he  is  mistaken.  The  editor  of  the 
Landmark,  in  commenting  on  this  action,  says: 

Now,as  to  the  apportionment  of  councilmen,  we  are  informed  that  the  object  of 
the  committee  

This  is  as  to  the  condition  in  Norfolk  

In  making  population  the  basis  is  to  get  a  law  which  will  prevent  the  defeat  of  the 
people  by  politcians  who  might  give  majority  representation  to  wards  which  con- 
tain actually  a  minority  of  citizens.    At  present,  to  come  right  down  to  our  own 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2027 


case,  Norfolk's  apportionment  is  reflated  by  the  General  Assembly,  which  has  itself 
said' how  many  councilmen  each  particular  ward  shall  have. 

Now,  listen  

It  requires  little  thought  to  realize  that  there  is  no  fairness  in  giving  the  Second 
ward  

With  a  population  of  5,500,  by  the  way  

For  instance,  as  many  councilmen  as  the  First  ward  or  the  Third  ward. 

With  populations  of  8,600  and  9,600,  respectively,  or  nearly  three  times  as  many 
as  in  the  Second  ward. 

Serious  injury  to  the  public  interests  might  easily  be  worked  by  legal  conditions 
which  leave  everything  wide  open  this  way.  There  may  have  been  a  time  when 
self-preservation  required  that  the  General  Assembly  be  able  to  exercise  discretionary 
power  in  the  premises.  But  if  there  ever  was  such  a  time,  it  is  past.  In  addition 
to  insuring  the  equitable  treatment  of  one  ward  as  compared  with  another,  the  pro- 
posed change  in  the  Constitution  will  keep  incoming  wards  from  demanding  or  re- 
ceiving unduly  large  representation. 

Now,  in  answer  to  what  the  gentleman  from  Norfolk  says  about  the  danger  in 
his  negro  ward,  the  Fourth  ward,  the  editor  of  the  Landmark  says  this: 

Norfolk's  especial  problem,  of  course,  is  the  Fourth  ward  

That  is  the  negro  ward  

"UTiich  is  rapidly  increasing  in  population.  This  ward,  as  now  constituted,  would 
nave  entirely  too  much  representation  for  the  good  of  the  city  if  the  basis  of  popula- 
tion were  used  in  fixing  the  apportionment.  The  best  thing  to  do,  it  seems  to  us,  is 
for  the  councils  to  redistrict  the  city  if  the  basis  of  population  shall  be  adopted.  The 
advantages  of  that  basis  as  a  safeguard  ought  to  overweigh  the  inconvenience  to 
which  we  may  be  put  in  order  to  adjust  local  conditions  to  the  law.  The  presumption 
is  that  at  each  reapportionment  (the  law  would  require  one  every  ten  years)  there 
would  be  also,  if  the  city  desired,  a  redistricting. 

There  is  the  remedy  for  any  such  condition  as  that  depicted  by  the  gentleman 
from  Norfolk.  Take  our  city  here.  The  negro  section  is  called  Jackson  ward.  It 
lies  in  the  northern  portion  of  the  city.  Now,  if  the  city  were  redistricted  and  a 
portion  of  that  negro  population  were  put  in  each  ward,  there  would  not  be  enough 
of  them  to  endanger  Democratic  rule  in  any  ward,  and  instead  of  there  being  one 
Republican  ward,  every  ward  in  the  city  would  be  a  Democratic  ward.  The  editor 
of  the  Landmark  is  of  the  opinion  that  the  same  thing  can  be  done  in  the  city  of 
Norfolk,  and  if  you  take  the  figures  showing  the  population  of  each  ward  you  will 
find  that  such  a  thing  can  be  done. 

Mr.  Brooke:  Mr.  Chairman,  I  simply  wish  to  justify  my  interruption  of  a  little 
while  ago.  I  said  neither  the  city  council  nor  the  Legislature  had  used  the  power  to 
district  the  wards  of  the  city  in  such  a  way  as  to  make  it  operate  against  the  white 
people.  The  Second  ward  of  the  city  of  Norfolk  is  not  a  negro  ward.  It  has  a  larger 
representation  in  proportion  to  its  population  than  the  negro  ward  has. 

Mr.  Pollard:  May  T  ask  the  gentleman  from  Norfolk  if  the  First  and  Thirds 
wards  are  not  white  wards? 

Mr.  Brooke:  Not  entirely.  They  are  by  a  majority,  but  there  is  a  large  number 
of  negroes  living  in  the  Third  ward.  The  First  and  Third  wards  both  bound  on  the 
fourth  ward,  and  there  is  an  overflow  of  the  negro  population. 

Mr.  Pollard:     But  they  are  both  white  wards. 

Mr.  Brooke:    They  are  white  wards,  so  far  as  majorities  go. 


2028 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Pollard:  And  yet  the  First  ward  and  the  Third  ward,  having  three  times 
the  population  of  the  Second,  are  given  only  the  same  representation  in  the  city  coun- 
cil. So  it  seems  that  in  the  city  of  Norfolk,  as  well  as  in  the  city  of  Richmond,  they 
use  this  power  against  the  white  people. 

Mr.  Willis:  The  gentleman,  as  I  understand,  claims  that  he  cannot  get  relief 
from  the  General  Assembly.  Do  not  the  majority  of  the  white  voters  in  Richmond 
control  your  representatives  in  the  General  Assembly;  and  if  you  control  the  repre- 
sentatives in  the  General  Assembly,  and  you  favor  an  amendment  to  your  charter, 
in  this  respect,  can  you  not  get  at  it  in  that  way? 

Mr.  Pollard:  Yes;  but  if  the  gentleman  lived  in  Richmond  he  would  know  that 
the  Common  Council,  having  the  control  of  nearly  one  thousand  employes  of  this 
city,  forms  such  a  solid  political  machine  that  the  representatives  from  the  city  would 
be  rarely  willing  to  go  against  their  bidding. 

Mr.  Willis:  You  ought  not,  it  seems  to  me  to  get  this  in  the  Constitution,  though. 
You  ought  not  to  seek  it  through  Constitutional  means.  You  ought  to  regulate  and 
control  your  local  conditions  better. 

Mr.  Pollard:  If  it  is  not  a  fundamental  principle  that  every  citizen  in  the  Com- 
monwealth should  have  equal  voice  in  the  management  of  the  affairs  of  his  city, 
leave  it  out  of  the  Constitution?  If  it  is  not  a  fundamental  principle  that  the  majority 
should  rule  in  the  cities,  leave  it  out  of  the  Constitution.  The  affairs  of  the  city  of 
Richmond  come  much  closer  to  us  than  do  the  affairs  of  the  State.  The  taxation 
we  pay  to  the  State  is  only  forty  cents  on  $100,  while  it  is  $1.40  on  $100  for  the  city. 
We  get  from  the  city  police  protection;  we  get  fire  protection,  and  we  get  our  water 
and  our  light  from  the  city.  The  affairs  of  the  city  come  much  nearer  to  our  homes 
and  our  firesides  than  the  affairs  of  the  State.  Why  should  men,  in  a  free  country, 
be  allowed  to  discriminate  against  the  citizens  of  the  cities  in  this  manner?  Is 
this  a  free  country?  Are  we  to  allow  political  cliques  to  hold  by  the  throats  a  ma- 
jority of  the  people  of  the  cities?  Is  that  fair?  Is  it  just?  Is  that  not  a  proper  mat- 
ter to  guard  against  in  the  Constitution  itself?  Ought  not  the  Constitution  to  guar- 
antee to  every  citizen  equal  voice  in  the  management  of  municipal  affairs? 

Gentlemen,  I  appeal  to  you  not  to  allow  the  violation  of  this  great  pn'nciple. 
Though  you  allow  it  for  the  purpose  of  discriminating  against  the  negro,  the  day 
will  come,  as  it  has  come  in  this  city,  in  the  city  of  Danville,  and  in  the  city  of  Lynch- 
burg, where  they  use  it  against  the  white  man  instead  of  against  the  negro.  We 
ought  not  to  violate  a  principle  for  a  supposed  difliculty  in  these  cities  that  have  ap- 
pealed to  you  to  leave  their  hands  free. 

Mr.  Thom:  Mr.  Chairman,  I  have  had  grave  doubt  of  the  wisdom  of  the  step 
we  are  taking  in  the  Convention,  of  applying  to  all  cities  general  laws,  but  I  had 
no  idea  that  the  diflBculties  which  I  anticipated  in  that  matter  would  be  so  early  ap- 
parent. The  difl5culty  that  has  presented  itself  to  my  mind  is  that  whenever  relief 
is  wanted  by  one  of  the  cities  of  the  State,  some  condition  existing  in  another  city 
brought  necessarily  into  the  question  by  a  general  law  would  prevent  the  relief  be- 
ing given  to  the  city  where  the  original  grievance  existed.  I  have,  however,  been  will- 
ing to  accept  that  proposition  of  the  government  of  cities  by  general  laws;  but  it 
seems  to  me  that  from  that  proposition  alone  this  corrollary  necessarily  follows,  that 
in  the  Constitution  there  should  not  be  a  hard-and-fast  rule  that  will  bear  harshly 
upon  some  of  the  communities  of  the  State  at  the  behest  of  any  other  community  in 
the  State,  no  matter  how  powerful. 

The  gentleman  from  Hampton,  the  representatives  from  Petersburg  and  the  rep- 
resentatives from  Norfolk  are  on  this  floor,  or  represented  by  permission  here,  pro- 
testing against  putting  into  the  Constitution  a  rule  of  representation  In  the  council 
which  will  have  the  effect  of  giving  bad  government  to  those  cities.  The  city  of 
Richmond  is  here,  through  one  of  its  representatives — opposed,  it  is  true,  by  another 


DEBATES  OF  THE  CONSTITUTIO^^AL  COis^YEXTION  OF  YIEGIiyTIA.  2029 

of  its  representatives — demanding  that  the  conditions  existing  in  the  city  of  Rich- 
mond shall  prevail  over  the  conditions  existing  in  other  portions  of  the  State,  and 
that  a  Constitutional  rule,  harsh  upon  some  of  the  communities  of  the  State^  shall 
be  engrafted  upon  the  Constitution. 

On  the  other  hand,  the  proposition  is  to  leave  that  whole  matter  to  the  General 
Assembly,  so  that  it  can  be  adjusted  by  the  needs  of  the  city  as  they  change,  or  as 
they  may  be  made  to  appear.  Now,  which  one  of  those  propositions  is  most  just? 
Is  it  right  to  allow  the  city  of  Richmond,  through  one  of  its  representatives,  to  put 
upon  the  city  of  Norfolk  and  these  other  cities  of  the  State  an  iron  rule  that  will  de- 
stroy the  peace,  the  tranquility  and  the  prosperity  of  the  city,  or  is  it  best  to  leave 
that  matter  to  the  General  Assembly,  as  proposed  by  this  amendment. 

I  cannot  conceive  that  any  proper  answer  has  been  given  to  the  question  asked 
by  the  gentleman  from  Hampton  (Mr.  Willis)  a  moment  ago.  The  question  was 
whether  or  not  the  representatives  in  the  General  Assembly  of  this  State  did  not  rep- 
resent white  majorities  from  the  city  of  Richmond,  and  whether  or  not  they  would 
not  answer  to  the  voice  of  that  white  majority.  The  answer  was  that  there  were  in- 
fluences in  the  city  of  Richmond  strong  enough  to  control  their  representatives  in 
the  General  Assembly.  What  does  that  mean?  It  may  mean  that  the  views  which 
the  gentleman  here  has  of  the  city  of  Richmond  are  not  the  views  of  the  majority 
of  its  population.  It  may  mean  that  he  is  not  right  in  his  assertion  of  the  senti- 
ments of  his  people  upon  this  floor,  but  that  the  other  gentleman  from  Richmond  is 
right;  but,  however  that  may  be,  and  with  it  I  have  no  concern,  I  do  plead  against 
putting  into  this  Constitution  a  rule  that  will  bear  harshly  and  disastrously  upon 
the  other  communities  of  the  State,  when  that  whole  matter  may  be  left  to  the 
General  Assembly. 

The  Chairman:  The  question  is  on  the  motion  of  the  gentleman  from  Louisa 
(Mr.  Gordon)  to  reconsider  the  vote  by  which  the  amendment  offered  by  the  gentle- 
man from  Norfolk  (Mr.  Thom)  to  Section  7  was  rejected. 

The  motion  was  agreed  to,  there  being  on  a  division,  ayes,  27 ;  noes,  24. 

The  Chairman:  The  question  now  before  the  committee  is  on  agreeing  to  the 
amendment  of  the  gentleman  from  Norfolk  (Mr.  Thom)  to  Section  7. 

Mr.  Thom:  Mr.  President  and  gentlemen,  we  have  about  adjusted  foui-  differences, 
I  believe,  and  I  ask  that  the  following  amendment  be  adopted.  I  will  read  it,  and  I 
think  the  gentlemen  here  will  agree  to  it. 

Insert  after  the  word  "city,"  in  line  16,  the  following:  "May  in  a  manner  to  be 
prescribed  by  law  increase  or  diminish  the  number  and  change  the  boundary  of  the 
wards  or  similar  sub-divisions  thereof  and."  Strike  out.  in  lines  19  and  20,  the 
words  "in  proportion  to  their  population  on  the  basis  of  the  last  preceding  United 
States  census"  and  insert  in  lieu  thereof  "in  a  manner  to  be  prescribed  by  law."  In 
line  22.  page  14.  strike  out  the  word  "herein"  and  insert  the  word  "so."  The  section 
would  then  read: 

The  council  of  every  city  may.  in  a  manner  to  be  prescribed  by  law,  increase 
or  diminish  the  number  and  change  the  boundaries  of  the  wards  or  similar  sub- 
divisions thereof,  and  shall,  in  the  year  1903.  and  in  every  tenth  year  thereafter, 
reapportion  the  representation  in  the  council  among  the  wards  or  similar  sub-divis- 
ions in  a  manner  to  be  prescribed  by  law;  and  whenever  the  council  of  any  such  city 
shall  fail  to  perform  the  duty  in  that  respect  so  prescribed,  a  mandamus  shall  lie  on 
behalf  of  any  citizen  of  such  city  to  compel  its  performance. 

:\Ir.  James  W.  Gordon:  I  repeat  what  I  have  said  heretofore,  that  I  have  not 
come  here  with  the  idea  of  making  a  Constitution  to  suit  the  city  of  Richmond  alone, 
but  one  to  suit  the  State  of  Virginia  and  all  the  communities  of  the  State.  I  be- 
lieve this  is  a  matter  which  affects  the  whole  State;  and  I  call  the  attention  of  my 
colleagues  to  the  fact  that  this  provision  does  not  make  it  mandatory  that  there  shall 


2030  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

be  a  redivision  or  a  redistricting  of  the  cities.    It  provides  that  "the  council  of  every 
city  may  in  a  manner  to  be  prescribed  by  law." 
Mr.  Pollard:     No;  it  says  "shall." 

Mr.  James  W.  Gordon:  It  says  it  "may  change  the  boundaries  of  the  wards." 
Then  it  says  "it  shall  reapportion  the  representation."  The  language  there  "may 
change  the  boundaries  of  the  wards"  was  put  in  a  tthe  instance  of  the  chairman  of 
the  committee  to  meet  a  possible  objection  to  the  reapportionment  feature  which  is 
contained  in  the  report,  and  is  not  intended  to  be  mandatory  at  all. 

Mr.  Chairman,  I  believe  if  the  Suffrage  Committee,  which  is  at  work  here  every  ^ 
night,  succeeds  in  presenting  to  the  Convention  any  provision  which  will  in  any 
large  degree  eliminate  the  negro  voters  of  the  State,  the  white  people  of  the  State 
are  going  to  divide  along  economic  lines,  and  that  we  are  going  to  have  two  large 
and  strong  white  parties  in  the  State  of  Virginia.  I  believe  majorities  have  the  right 
to  rule,  just  as  my  colleague  from  Richmond  (Mr.  Pollard)  has  said;  but  I  do  see 
this  great  danger  in  adopting  the  amendment  offered  by  the  gentleman  from  Norfolk 
(Mr.  Thom).  If  we  should  have  a  Legislature  here  controlled  by  one  political  party, 
and  there  should  be  a  city  or  a  number  of  cities  in  the  Commonwealth  in  which  the 
interests  of  the  other  party  prevailed,  you  might  have  that  Legislature  forcing  upon 
*  these  local  communities  a  representation  which  would  absolutely  destroy  them,  per- 
haps, or  reapportion  them;  and  I  say  you  are  doing  an  exceedingly  dangerous  thing 
when  you  put  it  in  the  power  of  a  hostile  Greneral  Assembly  to  absolutely  control 
the  will  of  all  these  local  communities  in  this  way. 

There  is  but  one  safe  way,  and  that  is  to  allow  the  local  communities  to  govern 
themselves  according  to  their  local  sentiment.  You  do  that  when  you  adopt  the  pro- 
vision originally  offered  by  my  colleague  from  Richmond  (Mr.  Pollard),  and  you  can 
do  it  in  no  other  way.  If  the  city  of  Petersburg  or  the  city  of  Richmond  has  a  voting 
population  which  is  Republican  in  its  sentiments,  the  city  of  Petersburg  or  the  city 
of  Richmond  ought  to  go  Republican;  but  I  do  say  that  no  Republican  majority  in  the 
General  Assembly  ought  to  be  allowed  to  apportion  the  representation  in  the  manner 
which  has  been  indicated  between  Jackson  ward  and  the  other  wards  of  this  city, 
thereby  defeating  the  best  sentiment,  perhaps,  in  the  community. 

It  is  a  safe  thing  to  leave  in  the  Constitution,  as  has  been  suggested,  a  reappor- 
tionment on  the  basis  of  population,  with  this  check  upon  any  evils  arising  out  of  that 
reapportionment,  that  the  Common  Council  may  redistrict  the  wards  so  as  to  throw 
the  colored  population  along  with  the  white  population  in  such  a  manner  as  to  prevent 
any  evils  arising  from  it. 

I  do  trust  the  committee  will  vote  down  these  amendments  and  allow  the  report  of 
the  committee  to  stand,  only  retaining  the  proposition  or  the  amendment  offered  by 
the  chairman  of  the  committee. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Norfolk  (Mr.  Thom)  as  modified. 

The  amendment  was  agreed  to,  there  being,  on  a  division,  ayes,  28;  noes,  24. 

The  Chairman:  The  next  question  before  the  committee  is  in  regard  to  the 
perfecting  of  the  phraseology  of  Sertlon  11. 

Mr.  Brooke:  Mr.  Chairman,  when  Section  11  of  the  report  was  last  under  con- 
sideration by  the  Committee  of  the  Whole,  it  was  passed  by  for  the  purpose  of  an 
amendment  in  relation  to  the  provision  in  reference  to  leases  and  franchises.  I  niove 
as  an  amendment  that  the  following  language  be  added  at  the  end  of  the  section: 
"Nothing  herein  contained  shall  be  construed  as  preventing  the  General  Assembly 
from  prescribing  additional  restrictions  on  the  power  of  cities  or  towns  in  granting 
franchises  or  in  selling  or  leasing  any  of  its  property,  nor  as  repealing  any  addi- 
tional restrictions  now  required  in  relation  thereto  in  any  existing  municipal  charter." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA.  2031 

Mr.  O'Flaherty:  Mr.  Chairman,  I  desire  to  ask  the  chairman  of  the  committee 
if  that  would  not  be  the  law  without  putting  it  in  the  Constitution? 

Mr.  Brooke:  We  think  so  except  as  to  the  last  clause  in  regard  to  repealing.  In 
the  end  of  the  second  section  of  this  article  we  have  provided  that  the  existing  charters 
shall  remain  in  force  except  as  they  are  inconsistent  with  the  provisions  of  this  Con- 
stitution. Now.  I  think  the  first  clause  of  the  proposed  amendment,  at  any  rate, 
would  be  law;  that  the  Legislature  might  prescrihe  additional  restrictions;  but  there 
might  be  some  question  as  to  whether  it  would  be  the  law  that  the  Legislature  might 
preserve  the  already  additional  restriction. 

Mr.  OTlaherty:  It  seems  to  me  the  thing  to  do  is  to  say  what  we  wish  to  say, 
and  simply  put  in  a  paragraph  as  to  repealing.  We  do  not  want  to  put  in  the  Con- 
stitution things  which  we  know  will  have  no  effect,  that  are  mere  surplusage:  and  I 
suggest  to  the  chairman  of  the  committeee,  with  all  due  deference,  that  he  should 
simply  put  in  the  part  of  the  ammndment  which  refers  to  repealing. 

Mr.  Brooke:  I  will  say  to  the  gentleman  from  Warren  (Mr.  O'-Flaherty)  that, 
after  a  great  deal  of  conference  with  regard  to  the  matter,  the  language  as  suggested 
by  the  amendment  was  accepted,  as  stated  to  a  majority  of  the  members  of  the  com- 
mittee whom  I  could  see  here  and  there.  We  have  had  no  meeting  of  the  committee. 
While  it  is  my  opinion,  and  I  think  it  is  the  opinion  of  a  good-  many  others,  that  that 
first  clause  confers  no  power  which  does  not  already  exist  in  the  General  Assembly, 
yet  there  are  some  gentlemen  in  whose  opinion  we  have  great  confidence  who  think 
there  may  be  some  doubt  about  it.    For  that  reason  we  felt  it  was  proper  to  put  it  in. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
chairman  of  the  committee  (Mr.  Brooks). 

The  amendment  was  agreed  to. 

Chairman:  The  next  question  before  the  committee  is  in  regard  to  the 
amendment  offered  by  the  gentleman  from  Winchester  (^Iv.  Harrison)  as  independent 
Section  1.5,  which  the  Secretary  will  read: 

Section  15.  Nothing  in  this  article  is  intended  to  modify,  alter  or  repeal  any  char- 
ter of  any  city  of  a  population  under  25.000  inhabitants,  or  the  control  of  tbe  General 
Assembly  over  the  same. 

Mr.  Brooke:  Mr.  Chairman.  I  desire  to  say  to  the  Chair  and  to  the  members  of 
the  committee  that  I  feel  a  little  bit  embarrassed  about  having  this  new  section 
brought  up  before  the  committee  at  this  time.  Y^Tien  it  was  offered  by  the  gentle- 
man from  Winchester,  it  was.  at  my  instance,  passed  over  because  of  personal  reasons, 
which  influenced  him.  I  had  no  idea  at  the  time  that  the  gentleman  was  going  to  be 
absent  from  the  Convention  for  four  or  five  days.  I  appealed  to  him  not  to  press  it 
before  the  Committee  of  the  Whole  at  that  time,  because  I  was  feeling  very  unwell 
and  wanted  to  get  away,  and  he  agreed  it  should  go  over.  I  feel  embarrassed  about 
pressing  it  at  this  time.  Having  made  that  statement,  I  will  leave  it  to  the  commit- 
tee as  to  whether  they  will  allow  it  to  go  over  or  not. 

Mr.  Keezell:  I  hope  the  Convention  will  not  pass  the  matter  by,  but  will  go  on 
and  dispose  of  it,  because  no  injustice  can  be  done  to  the  gentleman  from  Winchester 
by  proceeding  with  it.  and  otherwise  the  whole  Convention  will  be  delayed.  When  the 
gentleman  from  Winchester  returns,  if  his  amendment  is  not  adopted  and  he  desires 
to  insist  upon  it.  he  will  have  an  opportunity  to  do  so  in  Convention.  I  hope  the 
Convention  will  not  pass  the  matter  by.  but  that  it  will  finish  up  this  report,  so  that 
it  may  be  taken  up  in  the  Convention. 

The  Chairman:     The  question  is  on  agreeing  to  the  amendment. 

The  amendment  was  rejected. 

On  motion  of  Mr.  George  K.  Anderson,  the  committee  rose. 

The  President  having  resumed  the  chair,  Mr.  Withers  reported  that  the  Commit- 


2032 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


tee  of  the  Whole  had  completed  the  consideration  of  the  report  of  the  Committee  on 
the  Organization  and  Government  of  Cities  and  Towns,  and  had  directed  him  to  re- 
port the  same,  with  amendments,  to  the  Convention,  with  the  request  that  it  be 
printed. 

It  was  so  ordered. 

Mr.  Hunton:  Mr.  President,  I  desire  to  present  the  report  of  the  minority  of  the 
Committee  on  Corporations  and  to  ask  that  it  lie  on  the  table  and  be  printed,  and 
that  500  extra  copies  of  it  be  printed.  ,        -  ^  - 

It  was  so  ordered. 

On  motion  of  Mr.  Eggleston,  the  Convention  adjourned  until  to-morrow,  Wed- 
nesday, 29,  1902,  at  10  o'clock  A.  M. 


WEDNESDAY,  January  29,  1902. 

The  Convention  met  at  10  o'clock  A.  M, 
Prayer  by  Rev.  H.  E.  Johnson,  D.  D. 

On  motion  of  Mr.  Brooke,  the  Convention  proceeded  to  take  up  the  report  of  the 
Committee  on  the  Organization  and  Government  of  Cities  and  Towns,  as  amended  by 
the  Committee  of  the  Whole. 

The  sections  from  1  to  8  inclusive  were  read  and  considered.  Necessary  verbal 
changes  were  made,  but  no  amendment  materially  changing  the  report  was  adopted. 

Mr.  Ingram  sought  to  make  city  treasurers  eligible  after  their  second  term,  and 
Mr.  Lindsay  proposed  an  amendment  abolishing  the  office  of  city  sergeant  in  cities 
of  the  second  class.    Both  amendments  were  voted  down. 

Section  9,  relating  to  the  passage  of  city  ordinances  and  the  veto  power  of  the 
mayor,  was  then  read. 

Mr.  Meredith  proposed  the  following  amendment: 

No  ordinance  or  joint  resolution  appropriating  money  exceeding  the  sum  of  one 
hundred  dollars,  imposing  taxes  or  authorizing  the  borrowing  of  money  shall  be 
passed  except  by  a  recorded  vote  of  two-thirds  of  all  the  members  elected  to  each 
branch  of  the  council  of  said  cities,  and  in  case  of  the  veto  by  the  mayor  of  such  ordi- 
nance or  joint  resolution,  it  shall  require  a  recorded  vote  of  three-fourths  of  all  the 
members  elected  to  each  branch  of  the  council  to  pass  the  same  over  such  veto  in  the 
manner  provided  in  Section  9. 

The  amendment  was  rejected. 

Mr.  Hatton:  Mr.  President,  I  offer  an  amendment  in  that  same  language,  but  to 
strike  out  the  words  "two-thirds"  and  make  it  a  "majority  of  the  members  elected"; 
and  the  passage  over  the  mayor's  veto  to  be  by  a  two-thirds  vote. 

This  amendment  will  simply  provide  and  insure  that  when  these  specified  acts 
are  done  by  the  council  those  acts  shall  be  done  by  a  majority  of  all  the  members 
elected  rather  than  by  a  majority  of  quorum. 

The  amendment  was  agreed  to — ayes,  50;  noes,  16.  .  , 

Mr.  Meredith  proposed  the  fqllowing  amendment: 

Add  at  the  end  of  the  section  as  amended  the  following:  Nothing  contained  in 
this  section  shall  be  construed  to  repeal  any  provision  in  any  existing  city  charter 
requiring  a  two-thirds  vote  for  the  passage  of  any  ordinance  for  the  appropriations  of 
money,  imposing  taxes,  or  authorizing  the  borrowing  of  money. 

Mr.  Meredith:  Mr.  President,  I  wish  to  say  a  few  words  in  regard  to  that  amend- 
ment. I  simply  ask  that  the  cities  which  now  have  this  protection  shall  be  allowed 
to  retain  it.    You  have  passed  an  amendment  requiring  a  majority  vote  of  all  elected. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2033 


That  Tvill  protect  those  that  come  in  the  future,  but  some  of  us  ^'ho  live  in  cities 
already  existing  knovr  the  necessity  of  this  provision,  and  I  respectfully  ask  that 
this  amendment  be  adopted,  so  that  those  of  us  who  have  this  protection  in  our 
charter  shall  not  be  required  to  give  it  up.  It  cannot  affect  anybody  else,,  and  vre 
certainly  have  the  right  to  ask  you  gentlemen  to  let  us  require  that  our  money  shall 
not  be  expended  by  a  less  vote  than  vre  think  is  proper. 

The  amendment  was  agreed  to. 

Sections  9  and  10  were  then  adopted. 

Section  11.  relating  to  the  sale  or  lease  of  municipal  franchises,  was  then  read. 

Mr.  Meredith:  I  submit  an  amendment.  The  language  of  the  section,  beginning 
at  line  13,  is:  '"'And  no  franchise,  lease  or  right  to  use  the  same,  either  on,  through, 
across,  under,  or  over,  and  no  other  franchise  granted  by  a  city  or  town  to  any  private 
corporation,  association,  firm,  or  individual,  shall  be  for  a  longer  period  than  thirty 
years."  I  desire  to  have  this  language  added:  ''Before  granting  such  franchise  or 
privilege  for  a  term  of  years,  except  as  to  a  trunk  railway,  such  municipality  shall 
first,  after  due  advertisement,  receive  bids  therefor  publicly  in  such  manner  as  may 
be  provided  by  law,  and  shall  then  act  as  may  be  required  by  law.'' 

The  whole  object  of  that  amendment,  Mr.  President,  is  simply  to  require  publicity. 
These  franchises  are  sometimes  given  away  in  a  night,  and  the  object  is  to  require 
that  publicity  may  be  had  about  them  and  an  effort  made  to  ascertain  what  they  are 
worth.  That  is  the  only  restriction  that  is  put  upon  the  council;  that  before  you  give 
away  this  property,  no  matter  whether  you  do  it  hurriedly  or  after  due  consideration, 
you  shall  let  the  public  know  what  the  franchises  are  worth,  and  then  after  that  you 
shall  do  what  the  General  Assembly  may  see  fit.  If  the  General  Assembly  shall  re- 
quire you  to  put  it  out  to  the  highest  bidder,  you  are  compelled  to  do  that,  but  it  is 
left  entirely  to  the  Legislature.  All  I  am  striving  for  is  that  there  shall  be  some  pub- 
licity given  before  these  decisive  actions  are  taken  in  regard  to  the  disposition  of 
very  valuable  property  belonging  to  municipalities. 

I  wish  to  call  the  attention  of  the  Convention  to  the  fact  that  in  the  Constitu- 
tion of  Kentucky  they  have  a  far  more  stringent  rule.  It  provides:  '-'Before  granting 
such  franchises  or  privilege  for  a  term  of  years,  such  municipality  shall  first,  after 
due  advertisement,  receive  bids  therefor  publicly  and  award  the  same  to  the  highest 
and  best  bidder,  but  it  shall  have  the  right  to  reject  any  and  all  bids."  That  Con- 
stitution requires  that  the  bid  shall  be  given  to  the  highest  bidder.  There  may  be 
instances  where  that  might  be  unwise  and  instances  where  the  corporation  in  ex- 
istence and  using  some  of  the  franchises  of  the  city  may  desire  to  keep  out  a  very 
worthy  competitor,  and  it  might  enable  them  to  do  so  improperly.  That  is  the  argu- 
ment that  has  been  used,  but  this  amendment  does  not  go  to  that  extent.  It  does  not 
require  that  it  shall  be  given  to  any  person,  but  simply  that  there  shall  be  publicity 
about  the  matter.  It  says  to  the  council:  "You  shall  do  this  thing  after  due  consid- 
eration, and  you  shall  try  to  find  out  what  the  franchises  are  worth,  so  that  the  people 
can  know  how  their  property  is  being  given  away  or  sold,  or  whatever  disposition  is 
made  of  it";  then  afterwards  such  proceedings  may  be  taken  as  may  be  required  by 
law. 

We  are  proceeding  along  the  line  of  modern  thought,  but  we  do  not  go  as  far  as 
the  Constitution  of  at  least  one  of  the  States  goes;  and  I  ask  that  the  Convention, 
unless  there  be  some  reason  given  by  these  gentlemen  from  other  cities  In  opposition 
to  it,  give  us  this  protection,  simply  that  our  property  shall  not  be  given  away  secretly 
and  without  knowing  what  it  is  worth,  ^ye  want  publicity  about  it  and  the  ascer- 
tainment of  its  value  before  the  franchises  are  disposed  of. 

Mr.  Hatton:  Mr.  President.  I  cannot  understand  why  publicity  as  to  the  other 
corporations  provided  for  in  this  amendment  should  be  required,  .but  that  a  trunk 
railroad  should  be  exempt  from  that  publicity.    Therefore  I  feel  constrained  to  vote 


2034  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

against  the  amendment.  I  ask  the  Convention  to  seriously  consider  before  adopting 
an  amendment  of  this  kind  which  excepts  a  trunk  railroad.  I  ask  the  Convention 
to  vote  the  amendment  down.  I  do  not  see  why  a  trunk  railroad  should  be  exempted 
from  publicity  in  these  matters  any  more  than  any  other  corporation.  I  am  not 
hostile  to  railroads,  but  for  the  life  of  me  I  cannot  understand  why  a  trunk  railroad 
should  be  exempted. 

Mr.  Meredith:  Would  the  gentleman  object  to  making  a  motion  to  strike  that 
part  out?  I  want  to  get  a  test  of  the  question  as  to  what  we  shall  do  with  our  fran- 
chises in  the  cities.  I  am  fighting  for  the  principle  that  they  shall  not  be  given  away 
and  that  the  people  shall  not  be  robbed.  That  is  the  fight  I  am  making  on  this  floor, 
and  I  propose  to  make  it. 

The  reason  the  trunk  railroad  is  excepted  is  that  one  very  serious  item  to  munici- 
palities now  is  as  to  their  trunk  railroad  facilities.  It  is  a  very  serious  item  with 
us,  the  question  of  handling  freight.  We  all  strive,  in  all  of  these  municipalities, 
to  have  the  trunk  lines  come  to  the  doors  of  our  warehouses.  There  are  warehouses 
in  the  city  of  Richmond  that  have  been  built  at  a  cost  of  $45,000,  to  get  rid  of  having 
to  handle  freight  from  the  depot  to  the  warehouses. 

The  expense  of  a  quarter  of  a  cent  a  pound  upon  freight  destroys  practically 
the  profit  on  it.  You  can  therefore  conceive  as  to  how  important  it  is  that  we  should 
have  a  railroad  to  our  doors,  so  that  we  can  dump  our  freight  into  a  car  or  out  of  it, 
just  as  there  is  a  necessity  for  it.  Those  are  modern  necessities.  If  you  go  through 
the  city  here,  you  will  find  that  wherever  they  can  run  a  branch  or  switch  track  of 
one  of  these  trunk  lines,  it  is  done  simply  for  the  purpose  of  carrying  freight,  not  to 
carry  passengers.  The  freight  is  carried  up  to  the  door  of  a  warehouse  and  the  car 
remains  until  it  is  emptied,  and  is  then  taken  away.  There  are  a  great  many  instances 
of  that  kind  in  the  city  of  Richmond,  and  it  is  one  of  the  reasons  why  we  are  able  to 
compete  with  other  cities  in  business.  Our  railroad  facilities  are  encouraged  as  much 
as  possible  in  that  respect,  and  it  is  the  great  desire  of  the  merchant  to  have  the 
railroad  at  his  door  if  he  can  get  it. 

The  objection  that  applies  to  street  railroads  does  not  apply  to  the  trunk  railroad, 
for  the  reason  that  the  franchise  of  these  switch-tracks  is  not  worth  anything.  It  is 
a  mere  use  and  occupancy  of  the  street  for  the  benefit  of  the  public  generally.  There 
is  no  charge  made  by  the  railroad.  It  has  no  receipts  from  this  source,  and  the 
branch  track  is  not  intended  to  come  in  competition  with  other  railroad  lines  as  street 
railroads  come  in  competition  with  each  other.  It  is  simply  for  a  temporary  use  in 
the  receipt  and  discharge  of  freight. 

That  is  one  reason  the  trunk  railroad  is  excepted.  In  regard  to  the  other,  you 
will  find  that  when  cities  are  limited  as  to  what  corporations  should  enter  the  streets 
of  the  city  without  permission  of  the  city,  nothing  is  said  about  trunk  railroads,  and 
it  would  be  extremely  unwise  to  do  so.  I  am  heartily  in  favor  of  letting  none  of  these 
local  utilities  occupy  the  streets  without  the  consent  of  the  municipalities,  but  I 
would  be  opposed  to  blocking  a  steam  railroad  and  requiring  the  consent  of  the  city 
before  it  should  go  throagh.  I  think  that  is  a  thing  that  belongs  to  the  whole  State, 
and  the  State  ought  to  have  something  to  say  about  it.  The  committee  was  wise 
enough  to  leave  that  out.  Therefore  there  is  no  restriction  upon  a  trunk  railroad 
entering  a  city  without  the  consent  of  the  city;  and  when  you  come  to  this  kind  of 
use  by  a  mere  spur  or  switch-trick,  it  is  not  a  franchise  from  which  they  derive  any 
benefit,  like  a  street  railroad,  in  daily  use,  but  simply  a  temporary  occupancy  for  the 
benefit  of  some  of  the  merchants  owning  warehouses  in  the  -city. 

I  drew  the  amendment  in  accordance  with  the  provision  in  the  Constitution  of 
Kentucky,  but  provided  that  this  Constitution  shall  not  apply  to  a  trunk  railroad, 
because  it  would  not  do  to  hamper  the  city  in  regard  to  a  trunk  railroad  by  requirin-g 
the  consent  of  the  city.    If  any  gentleman  thinks  the  provision  ought  to  be  extended 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


2035 


to  embrace  a  trunk  railroad,  all  he  has  to  do  is  to  move  to  keep  that  out;  tut  I  have 
explained  the  reason  for  it,  and  the  thing  ought  not  be  voted  down  simply  because 
an  exception  is  provided  for,  unless  the  thing  itself  is  evil. 

I  earnestly  ask  that  the  cities  of  the  Commonwealth  may  have  some  chance  to 
ascertain  what  the  value  of  their  franchises  is,  and  that  these  municipalities  shall  be 
required  to  take  some  steps  to  secure  publicity  before  such  franchises  are  disposed  of. 
There  are  gentlemen  on  this  floor  who  know  their  cities  have  been  deprivea  or  a  iarge 
amount  of  property  by  the  hasty  manner,  to  say  nothing  harsher^  in  which  franchises 
have  been  disposed  of.  I  do  not  represent  the  only  city  in  which  that  has  been  done. 
It  has  been  done  in  my  city,  to  our  great  detriment.  We  are  simply  asking  that  this 
protection  may  be  given  us.  and  that  the  councils  may  have  their  hands  free  to  any 
other  extent  that  the  General  Assembly  may  see  fit  to  give  them. 

Mr.  George  K.  Anderson:  Mr.  President,  the  provision  embraced  in  the  amend- 
ment offered  by  the  gentleman  from  Richmond  (Mr.  Meredith)  has  been  very  care- 
fully considered  by  the  committee  having  these  matters  in  charge  

Mr.  Meredith:  May  I  interrupt  the  gentleman?  I  do  not  think  the  gentleman  re- 
members what  the  committee  considered.  The  resolution  that  was  offered  by  myself 
before  your  committee  required  that  they  should  be  put  up  to  be  bid  upon  along 
the  line  of  the  Kentucky  Constitution.  This  amendment  does  not  require  anything 
of  the  kind.  It  simply  provides  that  some  steps  shall  be  taken  to  give  publicity  to 
the  matter,  and  also  to  ascertain  the  value  of  the  franchise,  and  then  the  council  is 
perfectly  free  to  act  as  the  General  Assembly  may  require. 

Mr.  George  K.  Anderson:  Mr.  President,  the  proposition,  while  clothed  in  differ- 
ent language,  is  practically  the  same.  It  is  that  before  the  council  of  a  town  or  city 
shall  make  a  contract  for  the  use  of  its  streets,  it  shall  reduce  that  contract  to  writing 
or  to  specifications'  and  then  receive  bids  for  it.  Mr.  President,  it  is  a  matter  of 
common  note,  and  we  all  know  it  as  a  practical  fact,  that  the  cities  and  towns  of  the 
Commonwealth  do  not  find  out  themselves  what  they  have.  Some  man  comes  along 
who  sees  that  in  the  city  of  Richmond  or  in  the  city  of  Norfolk  a  street  railway 
would,  in  his  judgment,  pay  under  certain  terms  and  conditions,  if  he  can  get  those 
terms  and  conditions.  He  goes  to  the  council  and  agrees  with  the  council  as  to  the 
terms  and  conditions  under  which  he  may  occupy  the  streets  of  that  city  with  his 
enterprise.  If  that  gentleman  is  met  with  this  proposition,  "You  have  come  here  and 
seen  exactly  what  you  think  w^e  need;  you  have  seen  that  this  thing  will  be  a  good 
thing  for  the  city;  you  have  seen  it  will  be  a  good  thing  for  you;  and  3'ou  and  I  now 
will  agree  on  terms  under  which  we  are  willing  for  you  to  occupy  the  streets  of  this 
city";  and  then  the  council  tells  him,  "Before  we  can  let  you  do  it,  we  will  see 
whether  somebody  else  will  not  pay  more  for  it  than  you  will  pay  for  it."  it  will  re- 
tard the  development  of  the  cities  of  this  Commonwealth  just  as  the  cities  of  the 
Commonwealth  of  Kentucky  have  been  retarded  by  the  provisions  in  the  Constitution 
of  that  State,  and  just  as  the  cities  of  West  Virginia  have  been  retarded,  because  they 
have  a  statutory  provision  very  much  along  this  line,  and  I  have  had  some  personal 
experience  in  that  State. 

It  is  like  making  shoes  for  a  man  and  then  putting  them  up  at  auction.  Nobody 
will  bid  for  them  except  the  man  for  whom  they  were  made.  So  with  your  franchise 
provisions;  they  will  suit  the  man  who  came  to  that  town  to  get  the  franchise,  and 
they  will  suit  nobody  else:  and  putting  them  up  at  public  auction  will  be  a  matter  of 
supererogation.    There  is  no  necessity  for  it  in  the  world. 

My  friend  suggested  it  will  prevent  hasty  legislation.  I  should  like  to  ask  him 
whether  a  charter  has  ever  been  granted  by  the  city  council  of  the  city  of  Richmond 
so  hastily  that  nobody  ever  knew  anything  about  it?  We  have  provided  here  that 
those  franchises  shall  be  passed  by  a  majority  vote  of  the  council  and  receive  the  ap- 
proval of  the  mayor.     That  gives  publicity  enough.     Everybody  knows  that  the  re- 


2036  DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

porters  will  let  the  people  know  what  is  going  on  in  the  city  council.  There  is  oppor- 
tunity enough,  and  it  will  just  simply  amount  to  this:  If  you  put  a  provision  of  this 
sort  in  your  Constitution,  gentlemen  who  are  interested  in  these  enterprises  will 
taboo  the  State  of  Virginia,  as  they  have  tabooed  Kentucky  and  West  Virginia  along 
those  lines.  For  those  reasons  we  thought  it  wise  not  to  put  in  any  provision  offering 
these  franchises  for  public  sale. 

Mr.  James  W.  Gordon:  Mr.  President,  I  am  sorry  to  have  to  differ  with  what  is 
apparently  the  majority  of  the  Committee  on  Cities  and  Towns  in  regard  to  this 
matter,  but  my  grief  is  somewhat  modified  by  the  fact  that  I  can  so  heartily  agree 
with  my  colleague  from  Richmond  (Mr.  Meredith)  in  the  matter. 

It  seems  to  me  the  argument  just  made  by  the  gentleman  from  Alleghany  (Mr. 
Anderson)  is  not  a  good  one  for  this  reason: 

The  city  council  in  dealing  with  these  applications  for  franchises  does  not  deal 
with  them  as  a  body  alone,  or  as  individuals,  but  it  represents  the  whole  body  of  the 
people  in  regard  to  a  thing  in  which  the  public  is  interested.  I  freely  admit  that  if 
this  were  a  mere  matter  of  private  contract  between  the  members  of  the  city  council 
and  an  applicant  for  some  benefit  which  they  could  confer  upon  him,  the  gentleman's 
argument  might  hold;  but  where  the  council  represents  the  whole  body  of  the  people 
who  are  interested  in  the  value  of  these  franchises  and  in  the  nature  of  the  use  of  the 
streets  that  is  to  be  given  by  them,  it  does  seem  to  me  no  harm  can  come  by  throwing 
on  light  and  giving  the  fullest  publicity  to  the  grant  which  the  city  proposes  to  make. 

The  gentleman  from  Alleghany  says  that  the  franchise  which  it  is  proposed  to 
publish  will  not  fit  some  of  the  bidders,  and  he  likens  it  to  a  pair  of  shoes  that  would 
be  put  up  at  auction.  I  call  his  attention  to  the  fact  that  there  is  no  one  thing  that 
is  more  sought  after  in  these  days  than  city  franchises  of  all  kinds;  and  the  capital 
that  is  necessary  to  run  such  an  enterprise  can  be  furnished  by  one  set  or  men  just 
as  well  as  by  another  set  of  men,  and  no  applicants  for  these  franchises  monopolize 
all  the  brains  that  are  in  the  community.  We  have  had  frequent  illustrations  of  the 
fact  that  franchises  are  granted  by  city  councils  in  the  face  of  offers  made  by  other 
persons  to  purchase  those  franchises  at  a  very  considerable  amount.  We  had  an 
illustration  of  it  in  Richmond  a  year  or  so  ago.  An  offer  of  $50,000  was  made  for  a 
franchise,  and  it  was  given  without  any  such  consideration  to  another  company. 

Mr.  George  K.  Anderson:  Was  there  any  want  of  publicity  about  the  transaction — 
the  fact  that  a  franchise  was  being  sought?    Was  that  the  difficulty? 

Mr.  James  W.  Gordon:  No,  it  was  not,  in  that  particular  case;  but  it  might  very 
well  be  in  some  cases,  and  it  has  been  in  other  cases.  I  will  cite  the  gentleman  to  the 
fact  that  recently  in  the  State  of  Pennsylvania  and  the  city  of  Philadelphia  one  of 
the  greatest  scandals  this  country  has  ever  seen  grew  out  of  the  very  fact  that  pro- 
vision was  made  for  the  sale  of  franchises  in  Philadelphia  through  the  Legislature  of 
Philadelphia  and  the  city  council  of  Philadelphia  in  such  a  hurried  way  as  not  to 
give  publicity  to  the  matter. 

If  the  gentlemen  of  the  Convention  have  read  over  the  report  of  the  Committee 
on  Corporations  they  will  find  that  report  provides  for  the  fullest  publicity  as  to 
corporate  transactions  in  the  State  of  Virginia.  I  can  see  no  reason  why  we  should 
not  extend  that  principle  to  the  grant  of  municipal  franchises,  and  when  any  set  of 
men  come  before  any  of  our  councils  with  a  proposition  for  the  use  of  our  streets, 
they  should  be  met  by  the  city  council,  representing  the  whole  body  of  the  people,  and 
be  given  the  franchise  on  those  terms  and  conditions  which  will  conduce  to  the  best 
welfare  of  the  whole  community,  and  I  believe  the  amendment  of  the  gentleman  from 
Richmond  (Mr.  Meredith)  will  tend  to  that  result.  I  shall,  therefore,  support  it  most 
heartily,  and  I  trust  the  Convention  will  adopt  it. 

Mr.  George  K.  Anderson:  I  desire  to  ask  him  whether  he  thinks  if  a  long  dis- 
tance telephone  company  reaches  the  corporate  limits  of  my  town,  which  contain 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA.  2037 

about  3,500  people,  and  makes  an  arrangement  with  the  council  of  that  town  by  which 
it  may  traverse  the  streets  with  its  telephone  lines,  that  council  ought  to  be  required 
to  make  any  specifications  and  plans  by  which  that  company  is  to  go  through  there 
and  then  receive  bids  for  it?  _ 

Mr.  James  W.  Gordon:  My  friend  from  Alleghany  has  cited  an  extreme  case  to 
sustain  his  position.  I  wish  to  say  to  him  that  if  a  gas  company  or  a  water  com- 
pany or  an  electric  light  company  or  a  street  railway  company  came  to  his  town  and 
asked  for  the  privilege  to  use  the  streets,  it  would  be  the  most  natural  thing  in  the 
world  for  that  council  to  sit  down  and  draw  an  ordinance  under  which  any  set  of  men 
could  operate  that  franchise  in  the  streets,  under  the  streets,  and  over  the  streets 
of  his  town,  and  then  put  it  up  and  see  who  would  be  willing  to  give  most  for  it, 
and  not  confine  themselves  inflexibly  to  one  set  of  men  or  to  one  set  of  capital. 

That  is  the  state  of  affairs  that  this  amendment  tends  to  reach,  and  it  is  a  state 
of  affairs  which  is  confronting  the  cities  of  the  Commonwealth  almost  every  day  in 
the  year.  It  seems  to  me  there  can  be  absolutely  no  injustice  done,  and  great  good 
may  come,  by  the  adoption  of  the  amendment  offered  by  my  colleague. 

Mr.  Meredith:  Now,  Mr.  President,  is  the  gentleman  going  to  undertake  to  say 
because  in  small  towns,  where  you  are  not  apt  to  have  more  than  one  line  of  street 
railway,  if  any,  or  one  line  of  telephones,  if  any,  or  one  set  of  gas  works,  or  electric 
works,  if  any,  it  is  not  necessary  to  advertise  and  receive  bids,  that  shall  be  a  guide 
for  the  municipalities  of  the  State? 

Mr.  Barbour:  Could  not  this  provision  that  you  wish  put  in  here  be  handled 
better  by  the  General  Assembly  than  in  the  Constitution? 

Mr.  Meredith:  No,  sir;  we  are  putting  restrictions  in  here  upon  municipalities, 
and,  as  I  said  a  few  days  ago,  it  seems  to  me  there  is  no  subject  in  modern  times 
that  requires  more  careful  consideration  and  stronger  limitations  than  the  municipal- 
ities. They  are  becoming  the  great  evils  and  sores  in  the  body  politic,  and  unless 
you  put  some  restraint  upon  them  you  will  not  be  able  to  control  them  and  get  rid 
of  these  evils. 

Mr.  William  A.  Anderson:  Mr.  President,  if  my  friend  from  Richmond  (Mr. 
Meredith)  will  allow  me.  The  gentleman  from  Alleghany  (Mr.  Anderson)  asks  for 
some  instance  in  which  communities  had  suffered  by  reason  of  the  common  councils 
to  give  the  people  an  opportunity  to  make  opposition  to  schemes  of  spoliation.  I  de- 
sire to  call  his  attention  to  a  remarkable  instance  in  the  recent  history  of  one  of  the 
great  cities  in  this  country.  When  the  city  of  Chicago  was  about  to  be  plundered  by 
the  corrupt  action  of  its  council,  its  mayor  issued  a  proclamation  announcing  that 
he  would  put  the  members  of  that  council  in  the  penitentiary  if  they  dared  to  pass  the 
ordinance  giving  away  the  rights  of  the  people  of  that  city  for  fifty  years  to  the  most 
valuable  franchise  under  the  control  of  the  city  council,  but  that  did  not  deter  the 
council.  Under  the  charter  of  that  city,  or  the  Constitution  of  the  council,  they  could 
not  pass  such  an  ordinance  as  that  in  a  single  night,  as  can  be  done  under  the  Con- 
stitution we  are  framing  if  it  is  adopted  in  this  shape.  And  50,000  or  75,000  of  the 
citizens  of  that  city  surrounded  the  council  chamber  on  the  night  upon  which  the 
ordinance  granting  the  proposed  franchise  was  to  be  considered,  and  the  members  of 
the  council  were  served  by  the  people  with  notice  that  if  they  dared  to  pass  such  an 
ordinance  it  would  be  at  the  peril  of  their  lives. 

Mr.  George  K.  Anderson:  There  seemed  to  be  a  good  deal  of  publicity  about  the 
matter. 

Mr.  William  A.  Anderson:  Yes,  sir,  there  was  publicity  because  it  was  required 
there,  and  the  threatened  wrong  was  prevented. 

Mr.  George  K.  Anderson:  That  is  what  my  friend  from  Richmond  (Mr.  Mere- 
dith) is  asking  for  here.    Publicity  is  all  he  wants. 

Mr.  Brooke:    Mr.  President,  I  simply  rise  for  a  moment,  because  I  do  not  like 


2038  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

to  permit  to  pass  uncorrected  an  erroneous  statement  about  this  very  matter  we  have 
under  consideration.  The  gentleman  from  Rockbridge  (Mr.  Anderson)  has  said  that 
under  the  Constitution  of  the  State  of  Illinois  the  city  council  could  not  pass  an 
ordinance  in  a  single  night,  as  they  could  do  under  this  Constitution,  if  this  article 
is  adopted  as  it  is  prepared,  and  yet  for  a  week  here  we  have  been  trying  to  explain 
to  the  Convention  that  one  of  the  very  things  we  want  in  this  article  is  to  have 
two  chambers  to  the  councils,  so  that  the  very  thing  could  not  be  done  which  the 
gentleman  from  Rockbridge  says  could  be  done  if  this  article  is  adopted  as  prepared. 

Mr.  Meredith:  I  have  known  of  ordinances  passed  at  night  and  presented  to 
the  mayor  by  9  o'clock  the  next  morning^  in  order  that  there  might  not  be  any  oppo- 
sition. Mr.  President,  we  are  speaking  from  experience,  and  we  know  what  we  are 
talking  about.  I  wish  to  ask  the  gentleman  from  Alleghany  (Mr.  Anderson)  what 
harm  would  be  done  in  the  case  he  refers  to  if  that  long  distance  telephone  ordinance 
were  advertised?  I  say  that  no  harm  would  be  done  in  such  a  case,  but  great  harm 
can  be  done,  where  large  franchises  are  to  be  given  out,  unless  you  require  publicity 
in  regard  to  them. 

We  v/ant  to  protect  ourselves  against  such  a  state  of  affairs  as  has  existed  in 
Philadelphia  and  as  have  been  portrayed  here  as  existing  in  Chicago,  and  such  as 
has  existed  in  this  Commonwealth,  not  as  large  in  the  enormity  of  the  franchises,  but 
just  as  rotten  in  the  result  of  the  negotiations,  just  as  depraved,  just  as  fraudulent. 
The  only  difference  is  the  amount  of  property  that  was  transferred,  and  v/e  are  plead- 
ing here  that  our  State  shall  not  be  subjected  to  the  same  things  in  the  future,  and 
that  we  shall  have  some  protection.  What  is  the  protection?  In  the  first  place,  Mr. 
President,  let  me  give  you  a  little  statement  as  to  how  these  things  are  done.  A 
company  comes  and  knocks  at  the  door  of  the  council  and  presents  what  it  calls  a 
petition  or  draft  of  an  ordinance.  Of  course,  that  ordinance  is  drawn  in  the  most 
favorable  terms  itself.  It  tries  to  get  everything  it  can  from  the  council.  If  the 
council  is  exceeding  easily  handled,  it  gets  that  ordinance  through  just  as  it  is 
drafted.  If  there  are  some  watchful  members  there,  they  modify,  change,  and  amend 
the  ordinance,  and  then  the  company  is  asked  whether  it  will  accept  it.  All  we  ask 
is  that  you  will  provide  that  that  ordinance  shall  be  so  prepared  that  you  will  give 
the  franchise  to  anybody.  What  is  the  result  if  you  do  that?  In  the  first  place, 
the  man  who  comes  knocking  at  your  door  and  asking  for  this  ordinance  will  not 
buy  your  council,  because  he  does  not  know  whether  he  will  get  the  franchise.  If  you 
propose  to  put  it  up  at  public  auction  or  ascertain  what  it  is  worth,  so  you  can  sell 
it  to  anybody  else  to  whom  it  may  be  worth  something,  he  is  not  going  to  pay  mem- 
bers of  the  council  to  put  favorable  provisions  in  there,  because  he  knows  he  will  be 
encouraging  competition  if  he  does. 

That  is  the  practical  result  we  have  here,  that  men  spend  money  to  get  favor- 
able ordinances  passed  through  the  council  because  the  franchise  will  go  to  them  and 
they  can  afford  to  pay  for  it;  but  if  they  do  not  know  who  the  franchise  is  going  to, 
they  will  not  spend  their  money  in  buying  councilmen.  We  are  asking  for  protection, 
that  we  may  have  these  things  so  presented  to  the  public  that  anybody  can  get  a 
franchise  the  General  Assembly  shall  so  require.  We  do  not  require  that,  but  simply 
that  publicity  shall  be  given  and  that  the  value  shall  be  ascertained,  and  then  such 
steps  shall  be  taken  as  the  General  Assembly  shall  from  time  to  time  think  wise  in 
the  premises. 

Mr.  Brooke:  Mr.  President,  I  shall  take  only  a  few  minutes.  I  see  no  reason, 
from  my  standpoint,  why  this  amendment  should  be  adopted,  and  I  see  a  good  many 
reasons  why  it  should  not  be  adopted.  I  have  no  doubt,  of  course,  of  the  sincerity  of 
the  gentleman  from  Richmond  (Mr.  Meredith)  in  his  statement  that  his  effort  is  to 
protect  the  franchise  of  the  city  and  to  keep  his  people  from  being  robbed,  but  he 
must  not  forget  that  there  are  other  gentlemen  upon  this  floor  also  representing 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA.  2039 

cities  who  have  just  exactly  the  same  objection  to  municipal  corruption  as  he  has, 
and  are  here  for  the  purpose  of  protecting  their  people  from  being  robbed  just  as 
much  as  he  is.  The  question,  after  all,  is  not  one  of  all  morality  on  his  side  and 
the  contrary  on  the  part  of  the  gentlemen  who  differ  with*  him  in  a  proposition  which 
is  presented  before  the  people. 

I  think  I  can  say  for  the  Committee  on  Cities  and  Towns  that  they  have  shown  a 
persistent  effort,  running  through  this  entire  report,  upon  well  recognized  lines  of 
accepted  thought  on  the  question  of  municipal  government,  to  protect  the  people  of 
the  cities  from  the  mistakes,  the  errors  or  the  corruption  of  their  councils.  There 
is  no  use  talking,  in  this  late  day  we  cannot  legislate  people  into  morality.  There 
is  no  use  undertaking  to  make  a  constitutional  provision  to  suit  the  unfavorable  con- 
ditions of  particular  cities.  Why,  sir,  would  anybody  in  the  Convention  think  that 
if  we  had  on  the  floor  here  delegates  representing  the  cities  of  Sodom  and  Gomorrah, 
we  should  make  a  Constitution  in  order  to  correct  the  sins  and  evils  of  those  cities? 
Is  it  not  better  for  us  to  go  upon  some  well  recognized  lines  of  thought? 

What  is  the  declared  purpose  of  this  amendment?  But  one  justification  on  earth 
is  given  for  it,  and  that  is  to  give  publicity  to  the  fact  that  these  franchises  are  being 
applied  for.  To  what  end.  "If  you  follow  this  amendment  and  give  publicity  to  them, 
there  is  an  end  of  it.  That  is  all  you  do.  You  are  to  advertise  them,  you  are  to  pub- 
lish them,  and  they  are  to  be  put  up  for  public  bids.  There  is  no  obligation  on  the 
part  of  the  city  or  anybody  else  to  accept  a  -single  bid. 

Now,  let  us  see  if  this  quesOon  of  publicity  has  not  been  thoroughly  provided 
for  by  the  committee.  We  have  provided  for  a  council  to  be  composed  of  two  cham- 
bers. Ordinarily,  I  might  say  in  every  case  except  in  cases  of  such  an  extreme  nature 
that  I  can  hardly  conceive  of  them,  those  two  bodies  meet  at  different  times.  The 
proposition  of  a  franchise  is  made  to  one  of  the  bodies.  It  is  amended  in  that  body 
between  the  proposer  and  the  body,  until  the  terms  which  will  be  satisfactory  to  both 
are  agreed  upon. 

Then  it  goes  over  to  the  other  body  at  some  future  meeting.  Now,  is  it  con- 
ceived— or,  it  may  be  conceivable,  but  is  it  probable — that  all  this  while  that  can  be 
kept  entirely  secret,  that  the  people  of  a  community  do  not  know  that  certain  indi- 
viduals representing  capital  are  knocking  at  the  doors  of  the  council  to  ask  for  the 
gift  of  a  franchise? 

Then  it  comes  up  in  the  second  branch,  and  it  is  all  gone  over  again.  If  it  is 
amended  in  a  single  particular,  it  goes  back  to  the  original  branch.  Are  not  the 
people  advised  of  all  this?    Is  not  that  a  sufficient  advertisement? 

But  even  after  that,  the  committee,  in  its  anxiety  to  protect  the  franchise  of  the 
people  and  to  keep  the  people  from  being  robbed  by  their  councils,  have  given  to  the 
mayors  a  veto  power.  Every  ordinance  passed  by  those  two  branches  must  be  sub- 
mitted  to  the  mayor.  He  has  the  right  to  veto  it.  If  he  returns  it  with  his  veto,  then 
it  cannot  be  passed  by  the  council  except  by  a  two-thirds  vote  of  each  branch  of  the 
councils.  One  of  the  provisions  with  regard  to  that  veto  is  that  the  mayor  shall  return 
with  that  veto  his  reasons;  that  the  council  to  which  it  is  returned  shall  spread  those 
reasons  upon  the  record;  that  if  they  agree  to  pass  it  over  his  veto  they  send  it  to  the 
other  body  with  those  reasons  also. 

Now,  along  general  lines,  is  there  anything  more  that  could  be  done  to  give  pub- 
licity to  the  action  of  the  council?  The  gentleman  from  Rockbridge  (Mr.  Anderson) 
with  one  breath  says  that  under  the  Constitution  of  the  State  of  Illinois  they  could 
not  pass  an  ordinance  in  one  night  as  they  can  under  this  proposition,  if  it  is  adopted, 
because  there  would  be  two  chambers  to  the  council,  and  in  the  very  next  breath  he 
says:  "Why,  both  could  meet  the  same  day,  and  I  have  no  doubt  they  could  put  the 
halter  around  the  neck  of  the  mayor  and  lead  him";  but  we  are  not  providing  for 
things  which  may  occur  under  such  exceptional  circumstances.    We  are  trying  to 


2040  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

make  a  sensible,  and,  if  I  do  not  use  too  large  a  word  for  so  small  an  effort,  a 
philosophical  line  of  government  of  cities;  not  to  say  that  in  this  particular  the  city 
council  cannot  do  so  and  so,  and  in  this  particular  it  must  do  so  and  so,  but  laying 
down  general  lines  which  will  guard  in  a  general  way  the  rights  of  the  people.  We 
have  attempted  by  the  provisions  of  this  article  to  protect  the  people  of  the  cities 
against  the  maladministration  of  their  councils,  whether  it  be  from  incompetency 
or  corruption,  and  we  have  adopted  those  provisions  which,  it  seems  to  me,  and  seems 
to  the  committee  of  which  I  am  chairman,  are  absolutely  sufficient. 

One  other  word.  It  has  been  said  by  the  gentleman  from  Alleghany  (Mr.  Ander- 
son), and  very  truly — certainly  within  my  own  personal  experience,  and  I  have  had 
some  experience — that  franchises  do  not  originate  in  the  city  council.  The  man  rep- 
resenting a  syndicate  controlling  money  comes  into  one  city  or  another  to  see  if  he 
can  find  an  investment  that  will  be  desirable  to  him  and  profitable  to  the  city.  He 
does  not  care  so  much  about  its  being  profitable  to  the  city,  of  course,  but  he  wants 
to  see  if  he  can  get  a  proposition.  He  knows  the  limitations  under  which  he  wants 
his  charter.  He  knows  the  limitations  under  which  alone  he  can  successfully  operate 
if  he  gets  his  charter.  He  goes  to  the  councils  and  he  makes  his  proposition,  and  if 
he  cannot  get  the  provisions  which  are  essential  to  him,  he  abandons  the  effort. 
Well,  the  provisions  which  are  essential  to  him  may  be  objectionable  to  somebody  else. 
So  you  take  the  charter  and  turn  it  down  to  suit  the  desires  of  the  man  who  is  ap- 
plying for  it,  into  such  shape  that  it  will  suit  or  fit  nobody  else,  and  then  under  the 
proposition  of  the  gentleman  from  Richmond  (Mr.  Meredith)  you  give  public  notice 
that  this  franchise,  which  is  not  adaptable,  in  all  probability,  to  anybody  else  but  the 
man  who  is  applying  for  it,  shall  be  exposed  for  public  bid  at  public  auction,  and  no- 
body has  any  guarantee  that  any  bid  offered  for  it  is  going  to  bo  accepted;  and  all 
this  is  done  only  to  obtain  publicity. 

Mr.  James  W.  Gordon:  Is  it  not  a  fact  that  Mr.  John  Wanamaker  offered  a 
million  and  a  half  dollars  for  a  franchise  in  Philadelphia  under  those  very  circum- 
stances? 

Mr.  William  A.  Anderson:    Two  and  a  half  millions. 

The  President:     The  question  is  on  agreeing  to  the  amendment  offered  by  the 

gentleman  from  the  city  of  Richmond  (Mr.  Meredith),  which  the  Secretary  will  read. 
After  the  word  "yeas,"  in  line  17,  insert  the  following: 

Before  granting  such  franchise  or  privilege  for  a  term  of  years,  except  as  to  a 
trunk  railway,  any  such  municipality  shall  first,  after  due  advertisement,  receive 
bids  therefor  publicly  in  such  manner  as  provided  by  law,  and  shall  then  act  a,s  may 
be  required  by  law. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  54;  noes,  13. 
The  amendment  was  agreed  to. 

Sections  12,  13,  and  14  were  read  and  adopted,  completing  the  report,  except  Sec- 
tion 7,  which  had  been  temporarily  passed  by. 

The  President:  The  question  recurs  on  agreeing  to  the  adoption  of  Section  11 
as  amended. 

Section  11  was  adopted. 

On  motion  of  Mr.  Stuart,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Agriculture, 
Industrial  and  Manufacturing  Interests,  and  Immigration. 

Mr.  Glass  in  the  chair. 

Mr.  Stuart:  Mr.  Chairman,  in  as  much  as  this  report  has  been  somewhat  misun- 
derstood and  misrepresented,  of  course  unintentionally,  by  various  persons,  and  I  may 
say  by  the  press  of  this  city,  to  some  extent,  I  deem  it  proper  to  enter  into  some- 
thing of  an  explanation  of  the  aims  and  objects  of  the  committee  having  under  con- 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYENTIOX  OF  YIEGIXIA.  2041 

sideration  tlie  subjects  here  mentioned.  In  order  to  do  so,  sir,  if  I  may  be  pardoned,  I 
will  refer  briefly  to  some  extracts  contained  in  the  report  itself,  which  presents  the 
subject  in  a  much  briefer  and  more  pointed  way  than  I  could  expect  to  do  in  the 
course  of  any  remarks  I  might  make.  With  the  consent  of  the  committee,  therefore, 
I  will  present  this  for  their  consideration: 

Owing  to  the  number  of  subjects  which  have  come  under  the  consideration  of 
your  committee,  and  the  variety  of  opinions  which  have  been  presented,  both  by 
the  members  of  the  committee  and  by  persons  connected  with  the  agricultural  and 
industrial  development  of  the  State,  it  has  been  with  great  difficulty  that  the  commit- 
tee has  reached  a  conclusion  which  it  deemS;  in  the  main,  suffiiient,  in  respect  to  the 
development  of  the  State,  and  at  the  same  time  free  from  surh  provisions  as  might 
be  deemed  inappropriate  as  part  of  our '  organic  law. 

li  may  be  said  that  the  special  consideration  of  the  subject  of  agricultural 
and  industrial  and  manufacturing  interests  is  one  which  has  not  been  heretofore 
considered  as  of  sufficient  importance  in  itself  to  justify  the  creation  of 
a  separate  committee  for  its  special  consideration.  The  investigation  of  the  com- 
mittee charged  with  this  high  responsibility  has  fully  developed  the  justification  for 
this  rather  unprecedented  action  by  the  Convention.  It  would  be  useless  to  under- 
take the  recital,  within  the  compass  of  this  report,  of  all  the  important  features  of  the 
subject  referred  to  your  committee,  or  to  point  out  the  various  beneficial  results  to 
be  reached  by  our  action.  The  fact  that  the  masses  of  the  tax-payers  and  contrihu- 
tors  to  the  common  weal  are  directly  conected  with  and,  to  some  extent,  dependent 
upon  the  disposition  of  the  subject  under  our  consideration,  is  sufficient  evidence  of 
the  importance  which  attaches  to  the  deliberations  and  report  of  your  committee. 
It  is  undeniably  true  that  while  agricultural  interests  in  some  portions  of  Virginia 
have  been  steadily  languishing;  that  while  the  young  men  raised  on  the  farms  have 
been  drifting  in  hordes  to  pursuits  which  seemed  to  be  alike  more  congenial  and 
profitable;  3^et,  in  other  States,  not  greatly  favored  above  Virginia,  those  engaged  i'n 
agricultural  pursuits  have  been  steadily  increasing  both  in  numbers  and  influence. 
It  would  be  vain  for  this  committee  to  say  that  every  section  of  Virginia  could  be 
made  prosperous  under  any  policy  that  might  be  proposed,  but  it  is  confidently  be- 
lieved that  with  the  introduction  of  new  and  intelligent  methods,  such  as  may  be  ex- 
pected from  a  properly  organized  Agricultural  Bureau,  that  many  sections  of  the 
State,  vvhich  now  present  an  appearance  of  waste  and  desolation,  might  be  made  the 
scenes  of  happiness  and  prosperity.  The  State  of  Virginia  cannot,  through  any  proper 
public  instrumentality,  directly  advance  the  material  interests  of  individuals;  and  yet 
it  may  light  the  pathway  of  many  of  its  citizens  who  are  now  aimlessly  groping  in 
darkness.  It  may  be  stated  that  in  no  State  of  the  Union  is  there  a  greater  diversity 
of  soil,  climate  and  adaptability  than  in  the  State  of  Virginia.  Travellers  who  pass 
through  the  State  from  East  to  West,  and  from  North  to  South,  encounter  varieties 
of  soil,  production  and  climate  which  cannot  elsewhere  be  found  in  less  than  three 
States.  It  is  this  condition  which  has  always  militated  against  the  unification  of 
the  agricultural  interests  of  the  State;  and  it  is  this  lack  of  unification  which  it  is 
the  object  of  your  committee  to  relieve,  so  far  as  may  be,  under  the  provision  for  a 
Board  of  Agriculture  charged  with  the  consideration  of  every  important  interest 
known  to  the  agriculture  of  the  State. 

In  approaching  this  subject,  it  must  be  remembered  that  Virginia  has  not  been 
heretofore  wanting  in  faithful  and  unremitting  effort,  according  to  the  means  pro- 
vided, to  extend  recognition  to  agricultural  interests:  but  that  heretofore  the  instru- 
mentalities used  have  never  been  properly  organized  or  brought  in  touch  with  each 
other.  Recognizing  this  condition,  it  has  been  the  aim  and  object  of  your  committee 
to  unify  and  bring  into  harmony  all  the  agencies  which  have  heretofore  been  em- 
ployed in  the  advancement  of  agricultural  interests.  Not  only  has  your  committee 
129 — Const.  Deb. 


.2042  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

sought  to  unify  existing  agencies,  but  to  leave  ample  room  for  bringing  into  contri- 
bution to  the  advancement  of  the  agricultural  interests  of  the  State  all  the  agricul- 
tural interests  of  the  State  all  the  heads  of  the  various  organizations  which  now  exist 
or  which  may  be  hereafter  created,  looking  to  that  end. 

That  the  work  now  being  done  by  the  Commissioner  of  Agriculture  and  Agricul- 
tural Board,  as  at  present  constituted  by  law,  is  useful,  cannot  be  denied.  Neither 
can  it  be  denied  that  the  work  being  done  by  the  Department  of  Agriculture  of  the 
Virginia  Polytechnic  Institute  is  beneficial  to  the  agricultural  classes,  so  far  as  they 
have  been  able  to  avail  themselves  thereof.  But  it  must  be  admitted  that  the  efforts 
of  both  of  these  agencies  of  the  State  have  been  greatly  minimized  in  importance  and 
results  by  the  fact  that  they  have  not  been  heretofore  so  organized  as  to  compel 
harmony  and  united  action  for  the  betterment  of  a  common  cause.  Discovering  these 
perfectly  palpable  facts,  it  has  been  the  effort  of  your  committee  to  so  unite  the  State 
Agricultural  Board  and  the  Commissioner  of  Agriculture,  on  the  one  hand,  and  the 
Virginia  Polytechnic  Institute  and  its  corps  of  trained  experts  on  the  other,  as  to 
bring  the  State  within  the  benefits  which  might  be  and  should  be  conferred  by  the 
utilization  of  the  combined  efforts  of  these  two  important  agencies. 

The  report  of  your  committee  has  been  drawn  with  a  view  to  the  consummation 
of  this  much  desired  result;  but  at  the  same  time  the  committee  has  been  exceed- 
ingly careful  that  the  provisions  embodied  in  the  report  shall  not  be  such  as  to  mini- 
mize the  importance  and  effectiveness  of  either  of  these  agencies,  to  the  advantage 
of  the  other.  It  has,  therefore,  seemed  wise  to  your  committee,  and  they  so  report, 
that  reciprocal  relations  between  these  two  important  agencies  of  the  State  shall  be 
established,  which  is,  in  the  opinion  of  the  committee,  fully  accomplished  by  the 
recommendation  that  the  president  of  the  Board  of  Agriculture  and  the  Commissioner 
of  Agriculture  shall  be  members  ex-officio  of  the  Board  of  the  Polytechnic  Institute, 
and  that  the  president  of  the  Polytechnic  Institute  and  the  rector  of  its  Board  of 
Visitors  shall  be  members  ex-officio  of  the  Board  of  Agriculture.  In  this  way  the 
wants  of  each  of  these  arms  of  agricultural  development  will  be  made  known  to  the 
other,  and  they  will  be  united  in  a  common  cause  in  which  both  must  either  stand  or 
fall.  Under  this  arrangement  the  Board  of  Agriculture  will  have  practically  the 
same  control  of  the  Commissioner  of  Agriculture  as  the  Board  of  Visitors  of  the 
Polytechnic  Institute  has  of  the  president  of  that  institution,  making  the  boards  in 
each  case  responsible  for  the  proper  administration  of  their  respective  departments 
and  responsive  to  the  various  interests  which  each  board  may  represent. 

We  may  be  met  by  the  objection  that  your  committee  is  going  more  into  detail  ^ 
as  to  the  construction  of  the  Agricultural  Board  and  the  manner  of  the  election  of 
the  Commissioner  of  Agriculture  than  should  be  attempted  within  the  limits  of  a 
State  Constitution.  To  this  your  committee  replies  that  it  is  unwilling  to  recommend 
a  provision  which  makes  it  mandatory  on  the  General  Assembly  to  create  and  main- 
tain an  agricultural  department,  except  there  be  coupled  with  the  mandate  a  pro- 
vision defining  the  powers,  duties  and  responsibilities  of  the  creation.  It  has  seemed 
unwise  and  inadvisable  to  the  committee  to  call  into  being  a  Bureau  of  Agriculture 
without  accompanying  the  call  by  such  provisions  in  detail  as  will,  in  the  judgment 
of  the  committee,  give  to  the  State  the  full  benefit  of  whatever  good  can  or  should 
be  accomplished  by  such  agencies.  The  detail  as  to  the  manner  of  appointment  of  the 
Board  of  Agriculture,  and  the  election  of  the  Commissioner  of  Agriculture,  and  the 
reciprocal  duties  between  the  department  thus  created,  and  the  Agricultural  Depart- 
ment of  the  Virginia  Polytechnic  Institute,  have  seemed  essential.  To  have  given 
birth  in  a  constitutional  provision  to  a  bureau,  without  the  least  equipping  it  for  use- 
fulness and  guarding  it  againt  the  dangers  which  have  heretofore  retarded  all  the 
instrumentalities  which  the  State  has,  from  time  to  time,  set  in  motion  for  the  ad- 
vancement of  agricultural  interests,  would  seem  to  your  committee  as  giving  evidence 


DEBATES  OF  THE  CONSTITUTIOXAL  CONYEXTIOX  OF  VIRGINIA. 


2043 


of  ignorance  of  the  subject  or  indifference  to  its  importance.  It  is  believed  by  your 
committee  that  tbey  have  formulated  and  presented  to  the  Convention  a  scheme  for 
the  organization  and  control  of  an  Agricultural  Bureau  which  brings  into  contribu- 
tion all  of  the  vital  forces  now  in  existence  for  the  advancement  of  agricultural 
interests,  and  leaves  scope  to  the  General  Assembly  for  the  addition  of  such  other 
future  forces  as  may  from  time  to  time  appear.  It  is  only  through  the  uniflcatioD 
of  all  of  these  forces  and  agencies  that  the  agricultural  masses  of  the  State  can 
brought  within  the  beneficial  influence  of  an  Agricultural  Bureau. 

The  constitutional  and  statutory  provisions  of  all  the  States  of  the  Union  have 
been  diligently  searched,  with  the  view  of  forming  for  Virginia  an  Agricultural 
Bureau  on  the  best  models  yet  discovered;  and  the  information  obtained  from  these 
various  constitutional  and  statutory  provisions  has  been  maturely  considered  and 
analyzed,  and  the  best  of  all  has  been  embodied,  in  the  briefest  possible  compass,  in 
this  report. 

The  immediate  details  will  appear  in  Section  1,  and  in  so  far  as  they  do  not  ap- 
pear to  be  self-explanatory,  will  be  brought  immediately  to  the  attention  of  the 
Convention.  SuflBce  it  to  say  that  the  report  is  based  upon  careful  consideration  of 
the  high  aims  and  objects  to  be  attained,  and  upon  a  profound  regard  for  the  im- 
portant interests  to  be  subserved. 

Now,  Mr.  Chairman,  I  thought  proper  to  read  that  much  to  the  Convention  by 
way  of  explanation  in  a  very  general  way  of  the  aims  and  objects  of  the  committee, 
and  of  the  consideration  which  brought  about  this  report. 

Now,  as  to  the  report  itself.    There  appears  in  Section  1  a  provision  as  follows: 

There  shall  be  a  Board  of  Agriculture  and  Immigration,  composed  of  one  mem- 
ber from  each  congressional  district  in  the  State,  who  shall  be  appointed  by  the  Gov- 
ernor, subject  to  the  confirmation  of  the  Senate,  for  a  term  of  four  years,  except  that 
the  members  first  appointed,  after  the  adoption  of  this  Constitution,  from  the  odd- 
numbered  congressional  districts,  shall  hold  oflSce  for  two  j^ears. 

I  understand  there  is  no  objection  to  that  part  of  the  report.  Following  that 
there  appears  this: 

The  rector  of  the  Board  of  Visitors  and  the  president  of  the  Virginia  Polytechnic 
Institute  shall  be  members  ex-officio  of  the  Board  of  Agriculture  and  Immigration 

The  General  Assembly  may,  in  its  discretion,  add  other  members  ex-oftico  to  the 
said  board. 

That  brings  us  to  the  first  question  concerning  which  there  is  any  material  differ- 
ence of  opinion,  as  I  understand  it.  The  object  of  this  clause,  briefly  stated,  is  that 
the  example  set  by  other  States  may  be  followed  in  this  State,  which  is  to  allow 
representatives  of  important  agricultural  interests  in  their  representative  capacity 
membership  in  the  agricultural  board  of  the  State.  For  instance,  the  president  of 
the  Horticultural  Society,  an  association  engaged  in  the  growth  of  small  fruits,  and 
all  fruits,  in  fact,  which  is  one  of  growing  importance  and  value  to  the  State,'  and 
composed  of  very  intelligent  men  and  very  prosperous  ones— and  I  cite  that  depart- 
ment simply  as  an  example— might  be  allowed  membership  on  this  board,  which 
would  bring  into  the  board  the  representative  of  a  special  agricultural  interest  pre- 
pared to  represent  that  interest  as  no  other  member  who  might  be  appointed  by 
ordinary  process  would  be  expected  to  be  able  to  do. 

Again,  the  truckers  of  the  East  have  in  contemplation  the  formation  of  a  similar 
association,  and  this  provision  leaves  room  for  them  to  come  in.  as  is  the  case  in  the 
States  of  Illinois,  Ohio.  Michigan  and  other  States  of  the  West  where  it  is  deemed 
desirable  that  the  direct  representatives  of  special  agricultural   interests  should  be 


2044 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


allowed  direct  representation  on  the  agricultural  board.    Concerning  the  wisdom  of 
this,  it  seems  to  me  there  can  be  no  two  opinions. 
The  next  clause  is: 

The  powers  and  duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by 
law:  provided,  it  shall  maintain  its  principal  office  at  the  Capital  of  the  State,  and 
shall  elect,  and  have  power  to  remove,  its  officers,  among  them  a  Commissioner  of 
Agriculture  and  Immigration,  whose  term  of  office  shall  be  four  years. 

Now,  Mr.  Chairman,  that  is  the  clause  that  seems  to  have  excited  the  oppositi'on 
of  a  large  number  of  persons,  and  it  is  that  clause  which  I  shall  undertake  as  best 
I  can  to  show  the  wisdom  of,  and  I  think  I  shall  have  no  trouble  in  doing  so. 

That  clause  begins,  Mr.  Chairman,  by  the  declaration  that  "The  powers  and 
duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by  law."  There  is  a 
very  clear  limitation  upon  the  powers  of  this  board.  It  leaves  the  board  absolutely 
without  power  except  as  conferred  by  the  General  Assembly,  except  with  the  proviso 
further  appearing  in  this  clause. 

Now,  what  are  the  exceptions  provided  here?  The  first  one  is:  "Provided,  it 
shall  maintain  its  principal  office  at  the  Capital  of  the  State."  I  will  take  the  liTjerty 
of  reading  an  extract  from  an  editorial  appearing  in  the  Richmond  Di  patch  of  this 
morning,  and  I  do  so  because  I  take  it  that  it  reflects  fairly  the  sentiment  of  the 
people  who  are  opposed  to  this  section.    Among  other  .things  it  says: 

The  truth  is  that  the  Constitutional  Convention  is  making  a  great  mistake  in 
exercising  legislative  powers  as  it  is  doing — or  rather  as  some  of  Its  committees  would 
have  it  do. 

I  will  say,  gentlemen,  this  editorial  is  on  the  subject  of  this  report,  which  I  am 
now  presenting  to  the  committee. 

The  consequence  is  that  not  enough  time  is  left  it  to  discuss  and  consider  prin- 
ciples of  government.  Nor  can  the  Legislature  view  without  concern  and  indignation 
efforts  to  take  from  it  work  that  it  ought  to  do;  work  that  it  is  competent  to  do,  and 
work  which  hitherto  it  has  done,  and  done  well. 

It  seems  to  us  that  the  State's  Department  of  Agriculture  is  very  well  fulfilling 
the  purposes  for  which  it  was  designed.  If  it  has  not  escaped  criticism,  no  more  has 
Blacksburg  or  the  University,  or  the  Legislature,  or  the  Constitutional  Convention. 
Nor  would  the  Agricultural  Department  escape  criticism  if  it  were  removed  to  Blacks- 
burg, or  to  Lexington,  or  to  Charlottesville.  In  that  case,  indeed,  criticism  would 
rather  increase  and  would  not  fail  to  involve  the  institution  to  which  the  department 
was  attached. 

Plainly  this  is  another  matter  which  the  Convention  would  better  leave  in  the 
hands  of  the  Legislature. 

Permit  me  to  say,  Mr.  Chairman,  that  I  agree  very  thoroughly  with  the  sentiment 
there  expressed,  and  it  was  my  object  and  earnest  endeavor  to  leave  this  very  excep- 
tion out  of  this  clause;  and  I  may  add  that  it  v/as  done  with  a  view  to  preventing  the 
removal  of  this  department  from  the  city  of  Richmond  as  it  now  exists.  I  will  add, 
further,  it  is  the  first  line  that  was  ever  written  in  a  Virginia  Constitution  as  to  the 
location  of  the  Bureau  of  Agriculture,  and  that  it  is  one  more  line  than  I  think  should 
have  been  written  about  it,  for  I  think  the  Constitution  should  have  been  perfectly 
silent  on  the  subject,  as  the  old  Constitution  is.  I  read  now  from  the  old  Consti- 
tution, which  we  are  here  to  revise  and  amend: 

The  General  Assembly  shall  have  power  to  establish  a  Bureau  of  Agriculture  and 
Immigration,  under  such  regulations  as  may  be  prescribed. 

There  is  not  a  line  there  which  indicates  to  the  General  Assembly  where  this 
department  should  be  kept,  nor  do  I  think  there  should  be  a  line  in  our  report  on 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


2045 


that  point.  However,  in  deference  to  those  who  felt  that,  in  view  of  the  very  liberal 
provisions  which  were  proposed  here  as  to  reciprocal  relations  between  the  Poly- 
technic Institute  and  the  Agricultural  Board,  there  might  grow  a  tendency  to  move 
this  department  from  the  city  of  Richmond,  and  in  order  that  the  good  faith  of  those 
who  were  proposing  these  reciprocal  relations  might  be  fully  attested,  we  agreed 
that  this  clause  should  be  inserted  relating  to  the  maintenance  of  this  bureau  at  the 
Oapital  of  the  State. 

Now,  I  submit,  sir,  that  those  who  are  claiming  we  are  legislating  in  this  Con- 
stitution, those  who  are  claiming  we  are  burdening  this  particular  measure  with 
legislation,  cannot  w^ell  come  forward  and  insist  that  we  shall  lay  down  a  hard  and 
fast  proposition  that  this  bureau  shall  never  be  removed  from  the  Capital  of  the 
State.  Speaking  for  myself,  I  do  not  think  it  would  ever  be  good  policy.  I  cannot 
conceive  of  a  time  when  it  shall  ever  be  good  policy  to  remove  it  from  the  Capital. 
It  has  been  maintained  here  without  any  constitutional  requirement  for  all  these 
j^ears,  and  it  is  my  opinioiL  it  will  remain  here,  whether  we  by  constitutional  provision 
make  it  mandatory  or  not;  but  I  think  the  General  Assembly  ought  to  be  absolutely 
free  on  that  point,  or  I  did  think  so,  and  I  may  add  it  is  my  individual  opinion  yet, 
except  I  have  signed  this- report  with  this  proviso  that  the  principal  office  shall  remain 
at  the  Capital  of  the  State. 

It  is  impossible  to  conceive  any  circumstances  under  which  a  General  Assembly 
should  ever  move  this  department,  with  its  present  functions  and  duties,  from  the 
Capital  of  the  State. 

There  is  here  a  Bureau  of  Immigration  v/hich  has  done  some  valuable  service, 
and  no  one  would  seriously  say  that  any  general  assembly  would  ever  move  it  from  the 
Capital.  There  is  here  an  exhibit  of  minerals  from  all  parts  of  the  State,  but  who 
would  say  that  that  would  ever  be  moved  from  the  Capital.  There  is  here  a  labora- 
tory and  apparatus  and  everything  necessary  to  the  analysis  of  fertilizers,  a  very 
competent  bureau,  as  I  understand,  in  that  regard.  I  cannot  conceive  of  any  circum- 
stances in  which  that  should  be  discontinued  at  Richmond,  but  when  this  point  was 
made  in  the  report  of  the  Committee  on  Public  Institutions  as  to  the  location  of  the 
penitentiary  it  was  urged  by  a  number  of  gentlemen,  and  some  of  the  same  gentlemen 
who  are  now  urging  that  this  agricultural  bureau  be  retained  in  Richmond,  that  the 
Constitution  ought  to  prescribe  that  the  penitentiary  should  be  forever  kept  and 
maintained  in  the  city  of  Richmond,  the  Capital  of  the  State.  That  was  presented 
to  the  Committee  of  the  Whole  and  thoroughly  argued,  and  after  full  consideration 
it  was  decided  that  the  Constitution  should  be  silent  on  the  subject  of  the  location 
of  the  penitentiary.  It  was  argued  here  that  the  penitentiary  should  be  located  where 
it  would  be  convenient  to  a  heavy  police  force,  convenient  to  the  fire  department  and 
all  things  which  belong  to  a  large  city.  It  was  argued  with  much  force,  and  yet  it 
was  the  opinion  of  a  majority  of  this  committee  that  this  State  institution,  im- 
portant as  it  was,  that  it  should  be  near  to  the  police  department  and  fire  department, 
and  those  other  things,  should  not  be  bound  forever  to  remain  at  the  Capital  of  the 
State  or  at  the  city  of  Richmond. 

Now,  how  much  less  force  is  there  in  the  proposition  that  the  Bureau  of  Agri- 
culture should  forever  be  bound  to  remain  in  the  city  of  Richmond?  If  I  had  to  say 
that  it  had  to  be  provided  in  the  Constitution  that  this  bureau  should  stay  anywhere, 
then  I  say  it  should  stay  in  the  city  of  Richmond,  but  I  think  when  we  say  the  powers 
and  duties  of  this  board  shall  be  prescribed  by  law  in  the  same  manner  we  say  the 
location  or  site  of  the  bureau  shall  be  prescribed  by  law.  It  would  be  leaving  to  the 
General  Assembly  the  same  authority  which  the  newspaper  article  which  I  have  Just 
read  insists  should  remain  in  their  hands.  However,  I  feel  that  it  is  just  to  the  gen- 
tlemen who  advocate  this  proposition  of  keeping  the  bureau  in  Richmond  that  those 
who  differed  with  them  should  meet  them  in  a  spirit  of  compromise,  and  it  was  the 


2046  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  . 

result  of  that  spirit  of  compromise  which  brought  about  the  language  I  have  just 
read — that  is,  that,  the  principal  office  shall  be  in  the  city  of  Richmond,  or  at  the 
Capital  of  the  State. 

Another  point  of  contention,  Mr.  Chairman,  "the  board  shall  elect  and  have  power 
to  remove  its  officers."  I  can  hardly  conceive  of  any  view  that  would  seriously  con- 
test the  propriety  of  that  provision.  We  find  here  that  this  board  and  the  commis- 
sioner, who  is  its  executive  officer,  has  been  for  years  appointed  by  the  same  authority 
acting  independently  of  each  other,  neither  having  the  slightest  control  or  authority 
over  the  other.  Either  the  board  should  be  abolished,  or  it  should  be  given  some 
power  in  the  direction  of  the  affairs  of  the  Agricultural  Bureau.  It  was  thought  that 
the  agricultural  interests  of  the  State  would  be  promoted  by  bringing  together  repre- 
sentatives from  various  parts  of  the  State  as  a  board.  Having  done  so,  it  seems 
absurd  that  it  should  be  assembled  at  an  expense  to  the  State  and  absolutely  divested 
by  the  Constitution,  itself  of  every  particle  of  authority  to  deal  with  the  subjects  that 
might  come  before  It.  Therefore  we  have  framed  this  language,  and  if  this  be  legis- 
lation, it  is  only  such  legislation  as  is  necessary  to  define  properly  what  we  are  making 
mandatory  shall  exist  in  this  State.  To  say  that  there  shall  be  an  Agricultural 
Bureau  would  be  idle  without  saying  just  exactly  what  the  character  of  the  bureau 
shall  be.  Certainly  we  should  be  willing  to  equip  it  and  put  it  on  foot  before  saying 
in  the  Constitution  that  it  shall  exist. 

Therefore  I  take  it  that  that  proposition  will  not  be  seriously  contested  that 
the  bureau  shall  elect  ?.ts  executive  officer.  Of  course,  it  is  not  meant  that  they  shall 
prescribe  every  specific  duty  which  this  commissioner  shall  perform.  He  will  be 
vested,  doubtless,  with  a  large  discrimination  just  as  all  executive  officers  are  and 
should  be.  And  it  does  seem  to  me  there  ought  to  be  some  responsibility  from  this 
executive  officer  to  a  board.  I  take  it  the  power  to  remove  would  be  well  nigh  in- 
volved in  the  power  to  appoint.  "Whose  term  of  office  shall  be  four  years."  That 
prescribes  that  the  commissioner  when  appointed  shall  hold  office  for  four  years. 
There  is  a  reciprocal  relation  which  provides  that  the  Commissioner  of  Agriculture 
and  president  of  the  board  shall  be  members  ex-officio  of  the  Board  of  Visitors  of  the 
Virginia  Polytechnic  Institute. 

Now,  I  wish  to  say  this  report  has  been  drawn  with  great  care,  and  after  con- 
sultation with  nearly  every  important  representative  of  the  agricultural  interests  of 
the  State.  We  have  had  before  us  the  Board  of  Agriculture,  and  the  chairman  of 
that  board,  and  six  of  its  members,  including  the  chairman,  expressed  their  approval 
of  this  scheme,  so  far  as  it  related  to  the  control  of  the  commissioner,  the  point  to 
which  we  called  their  especial  attention.  I  have  a  letter  from  the  president  of  the 
board,  who  is  a  very  capable  and  highly  respected  citizen  of  this  State,  and  a  man 
whose  opinion,  I  think,  is  entitled  to  as  much  weight  on  subjects  of  this  kind  as  that 
of  any  man  within  my  knowledge  in  which  he  unqualifiedly  endorses  the  report  from 
beginning  to  end. 

It  does  seem  to  me,  therefore,  if  those  persons  who  have  oeen  selected  with 
special  reference  to  the  representation  of  the  agricultural  interests  in  this  State  are 
pleased  with  this  report,  certainly  no  consideration  of  a  merely  personal  or  local 
character  should  be  allowed  to  come  in  the  way  of  its  adoption  by  this  Convention. 
Now  it  is  said  that  there  is  danger  that  Blacksburg  will  absorb  this  institution.  On 
the  contrary,  the  language  of  this  report  will  forever  prevent  it,  because  it  defines 
it  as  a  separate  and  distinct  body,  an  Agricultural  Board,  the  members  of  which 
shall  perform  certain  duties.  It  will  be  impossible  to  destroy  it,  when  it  is  provided 
that  the  representatives  in  that  body  are  to  perform  certain  duties.  I  take  it  that  thi's 
objection  cannot  be  seriously  considered.  In  this  report  is  the  only  line  which  has 
ever  been  written  which  tended  to  perpetuate  the  Board  of  Agriculture  so  far  as  I  am 
able  to  discern.    Besides,  Blacksburg,  as  we  all  know,  is  eight  miles  from  the  railroad. 


DEBATES  OF  THE  CONSTITUTIONAL  CONTENTION  OF  VIRGINIA. 


2047 


I  think  it  is  almost  undignified  to  discuss  so  absurd  a  proposition  as  that  it  Is  in- 
tended to  remove  this  board  to  Blacksburg.  I  am  really  humiliated  that  sufficient 
importance  should  be  given  to  so  absurd  a  proposition  as  to  have  members  of  this 
body  approach  me  on  the  subject.  Blacksburg  is  six  or  eight  miles  from  the  railroad. 
It  does  seem  that  any  member  of  this  body  should  know  that  it  would  not  do  to  have 
the  Bureau  of  Immigration,  the  exhibit  of  agricultural  and  mineral  products,  or  any 
of  the  essential  accompaniments  of  the  bureau  now  in  Richmond  at  that  remote  point. 

But  it  appears  all  the  more  absurd  when  I  state  that  neither  Blacksburg  nor  any 
representative  of  it,  so  far  as  I  am  able  to  ascertain,  has  the  slightest  desire  to  absorb 
or  in  any  way  to  interfere  with  the  Bureau  of  Agriculture.  They  are  prosperous. 
They  are  standing  alone.  They  have  developed  a  great  institution,  which  they  started 
almost  entirely  as  an  agricultural  school.  Mean  time  the  mechanical  feature  of  the 
school  has  grown  and  the  agricultural  feature  has  been  awarded.  It  is  to  vitalize 
the  agricultural  department  of  that  great  institution  that  the  committee  seeks  to 
provide  these  reciprocal  relations.  I  hardly  think  it  necessary  to  dwell  seriously  on 
the  subject  that  there  is  any  such  change  contemplated. 

I  dislike  to  detain  the  committee  so  long  in  the  discussion  of  these  matters,  but 
they  are  new  subjects  to.  most  of  the  members  of  the  committee,  and  perhaps  new  to 
most  constitutions.  I  do  not  wish  to  close,  however,  without  stating  that  the  Agri- 
cultural Bureau  as  now  constituted,  according  to  my  best  information  and  understand- 
ing, is  doing  a  good  work,  and  the  Commissioner  of  Agriculture  has  shown  himself 
in  every  way  to  be  an  efficient  officer.  I  think  the  interests  of  agriculture  in  the  State 
are  steadily  advancing  under  that  administration,  but  we  are  writing  a  Constitution 
which  is  to  be  suited  to  changing  conditions,  and  we  do  not  know  that  we  can  always 
avail  ourselves  of  the  services  of  perfectly  competent  commissioners,  appointed  by 
the  Governor,  with  special  fitness  for  the  position,  and,  as  I  say,  the  committee  has 
framed  this  report  to  suit  conditions  as  they  see  it,  that  may  arise  in  the  future  as 
^^eIl  as  those  that  may  now  exist. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  I  was  absent  on  Monday  when  this  re- 
port was  presented  to  the  committee,  and  I  desire  to  have  it  understood  that  I  would 
have  signed  it,  reserving  the  same  rights  which  other  members  do  to  object  to  par- 
ticular items  in  it. 

The  Chairman:    The  Secretary  w^ill  read  the  first  section. 

Section  1.  There  shall  be  a  Board  of  Agriculture  and  Immigration,  composed  of 
one  member  from  each  congressional  district  in  the  State,  who  shall  be  appointed  by 
the  Governor,  subject  to  the  confirmation  of  the  Senate,  for  a  term  of  four  years,  ex- 
cept that  the  members  first  appointed,  after  the  adoption  of  this  Constitution,  from  the 
odd-numbered  congressional  districts,  shall  hold  office  for  two  years. 

Mr.  Parks:  Mr.  Chairman,  I  desire  to  offer  the  following  amendment,  as  the 
first  of  a  line  of  amendments  I  shall  offer,  in  line  8,  after  the  word  "years,"  I  move 
to  insert  the  following: 

A  Commissioner  of  Agriculture  and  Immigration  shall  be  elected  by  the  qualified 
voters  at  the  same  time  that  the  Governor  is  elected,  whose  term  of  office  shall  be  for 
four  years,  and  who  shall  be  ex-officio  a  member  of  the  Board  of  Agriculture  and  Immi- 
gration herein  provided  for. 

Now,  Mr.  Chairman,  I  only  want  to  submit  a  few  words  in  advocacy  of  that 
amendment.  The  Commissioner  of  Agriculture  ought  to  be  as  near  to  the  people  of 
the  State  of  Virginia  as  it  is  possible  to  get  him.  Our  State  is  an  agricultural  State, 
and  it  seems  to  me  the  people  of  the  State  who  are  engaged  in  agricultural  pursuits 
ought  to  select  this  Commissioner  of  Agriculture. 

I  am  not  a  farmer,  sir,  though  I  was  bom  and  raised  on  a  farm.    At  the  same 


2048 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA, 


time  I  have  always  lived  in  an  agricultural  community,  and  I  know  what  the  wishes 
of  my  people  are  in  reference  to  this  thing.  In  addition  to  that  we  all  know  a  great 
hue  and  cry  has  gone  out  through  the  country  among  the  people  that  we  are  cen- 
tralizing too  much  power  in  the  Governor,  and  in  other  officers  at  the  Capital,  and 
taking  it  away  from  the  people.  Now,  I  do  not  pay  a  great  deal  of  attention  to  that 
thing,  nor  hold  my  ear  close  to  the  ground  to  find  ont  what  the  popular  clamor  is  in 
the  discharge  of  my  duty,  but  I  exercise  the  best  judgment  and  call  into  requisition 
all  the  ability  that  I  have,  and  seek  to  discharge  my  duty  as  my  honest  judgment  dic- 
tates. 

I  offer  this  amendment  in  good  faith,  believing  that  this  convention  can  do 
nothing  that  will  more  commend  the  Constitution  which  we  shall  frame  to  the  agri- 
cultural people  of  the  State  than  to  give  them  the  pov/er  to  select  the  Commissioner 
of  Agriculture. 

I  am  not  asking  the  appointment  by  the  Governor  or  the  confirmation  of  the 
appointment  by  the  General  Assembly  per  se,  except  that  I  believe  it  would  be  bet- 
ter that  this  officer  should  be  elected  by  the  people.  I  believe  the  people  themselves 
will  manifest  more  .interest  in  the  Department  of  Agriculture  than  they  have  done  in 
the  past,  when  they  have  by  their  votes  to  elect  the  Commissioner  of  Agriculture.  I 
believe  in  addition,  as  I  have  before  stated,  that  nothing  that  this  Convention  can 
do  will  better  recommend  the  efforts  of  the  Convention  to  the  farmers  of  the  State 
of  Virginia  than  to  give  them  the  power  to  select  this  Commissioner. 

Mr.  Stuart:  Mr.  Chairman,  it  occurs  to  me  that  if  that  amendmeni*  Is  adopted, 
we  might  as  well  dispense  with  the  formality  of  a  Board  of  Agriculture.  What  the 
duties  of  that  board  will  be  after  they  are  assembled,  in  the  presence  of  an  officer 
elected  at  the  general  election  with  the  Governor,  I  would  be  unable  to  imagine.  They 
would  certainly  not  be  useful,  and  possibly  not  very  ornamental. 

Mr.  Fairfax:  Mr.  Chairman,  with  all  due  respect  to  the  representative  from 
Page  (Mr.  Parks),  I  wish  to  express  myself  very  briefly  in  the  way  of  objecting  to 
the  election  of  the  commissioner  by  the  people.  I  base  my  objection  upon  a  clear 
business  ground,  and  only  in  that  way.  One  difficulty,  as  I  see  the  matter,  would  be 
that  the  present  law  allows  the  Commissioner  of  Agriculture  a  very  modest  salary. 
Of  course,  the  details,  and  the  laws  governing  this  subject,  are  left  to  the  General 
Assembly,  and  they  have  the  power  to  increase  his  salary;  but  it  would  be  practically 
Impossible  to  select  the  best  man  for  that  position  in  the  manner  suggested  by  the 
amendment  of  the  gentleman  from  Page. 

It  would  be  a  very  difficult  matter  for  the  people  of  Loudoun  county,  for  exr 
ample,  which  is  an  entirely  agricultural  county,  to  cast  its  votes  intelligently  or 
send  their  representatives  to  a  State  Convention  to  name  a  man  who  would  poll  a 
good  vote  in  the  State  of  Virginia,  and  who  would  be  a  competent  man  to  fill  the 
position.  There  are  comparatively  very  few  men  in  the  State,  as  I  understand,  who 
are  fit  and  competent  to  properly  perform  the  duties  of  the  position.  It  requires  a 
man  of  certain  attainments  and  qualifications.  He  has  details  to  carry  out  with 
which  a  politician  or  a  man  who  looks  after  the  affairs  of  the  State  generally  is  not 
familiar.  If  I  may  allude  to  the  fact,  the  proposition  was  brought  up  in  discussion 
in  the  committee  that  there  might  be  eleven  members  of  the  board  appointed  by  the 
Governor,  and  one  of  those  members  elected  Commissioner.  I  raised  the  point  that 
while  a  man  might  be  a  very  efficient  member  of  the  board,  he  might  be  entirely  in- 
efficient in  regard  to  the  duties  of  Commissioner  of  Agriculture.  Satisfactory 
men  for  the  position  cannot  be  often  found,  and  when  found,  ihey  are,  as  a  rule, 
not  publicly  known,  or  known  prominently  throughout  the  State.  It  seems  to  me  it 
would  be  a  very  difficult  matter  to  secure  the  services  of  the  best  man  for  the  position 
i'f  the  amendment  of  the  gentleman  from  Page  is  adopted. 

Mr.  R.  L».  Gordon:    Mr.  Chairman,  I  desire,  very  briefly,  to  support  the  amend- 


DEBATES  OE  THE  COXSTITUTIONAL  COXVEXTION  OF  TIRGIXIA.  2049 


ment  of  the  gentleman  fiom  Page  (Mr.  Parks).  We  have  heard  that  the  people  are 
incapable  of  selecting  justices  of  the  peace,  judges  and  other  officers,  hut  it  does  seem 
to  me  the  most  remarkable  proposition  I  have  ever  heard  advocated,  that  the  farmers 
of  the  State  of  Virginia  are  not  capable  of  electing  a  farmer  to  act  as  the  head  of 
this  Board  of  Agriculture  or  to  be  a  member  of  it.  If  there  is  any  one  thing  the 
people  of  the  country  do  know,  and  would  be  likely  to  know^  it  is  something  about 
agriculture,  and  whether  a  man  would  be  fit  for  a  position  on  that  board. 

Mr.  Portlock:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  happened  to 
be  a  member  of  this  Committee  on  Agricultural,  Manufacturing  and  Industrial  Inter- 
ests and  Immigration.  I  would  say  that  we  have  considered  this  question  very  fully, 
as  to  the  method  of  selecting  the  Commissioner  of  Agriculture.  This  report  contem- 
plates, to  all  intents  and  purposes,  a  distinctive  branch  of  industry;  pertaining  more 
directly  to  agriculture,  in  which  the  people  at  large,  in  other  branches  of  business  are 
remotely,  certainly  not  very  directly,  interested. 

"We  deem  it  important  that  the  people  who  are  interested  in  this  matter  should 
have  a  voice  in  the  selection  of  the  Commissioner  of  Agriculture,  for,  as  a  matter  of 
fact,  the  agriculturists  alone  feel  any  interest  in  the  selection  of  this  officer.  The 
only  way,  Mr.  Chairman  and  gentlemen,  to  provide  for  this  is  to  place  the  farming 
communities  in  a  position  to  recommend  some  suitable  person  to  some  appointive 
power.  This  report  provides  that  such  nominations  may  be  made  by  the  people  to  the 
Governor,  either  in  person  or  through  their  representatives,  expressing  their  desire 
as  to  whom  they  wished  to  fill  the  position  of  Commissioner  of  Agriculture.  This 
cannot  be  accomplished  by  popular  election,  as  I  shall  undertake  to  demonstrate. 

No  man  upon  this  floor  concedes  to  the  people  of  Virginia  a  greater  right  to  select 
their  own  officers  by  popular  elections  than  myself,  whenever  it  shall  best  subserve 
their  interests  so  to  do.  But  the  people  of  Virginia  have  sent  us  here,  as  their  rep- 
resentatives in  this  Convention,  to  do  what  in  our  judgment  may  be  best  for  them, 
whether  it  be  to  provide  for  the  election  of  certain  of  their  officers  by  the  people  at 
large,  or  to  have  them  appointed  by  the  Governor,  or  other  appointive  power. 
So  far  as  I  am  concerned,  I  shall  always  do  what  I  conceive  to  be  best 
to  be  done  in  that  direction  in  the  interest  of  the  citizens  of  this  Common- 
wealth, regardless  of  the  fact  that  the  "people"  are  being  preached  to  us  from  the 
beginning  to  the  end  of  the  chapter.  "We  are  here  to  do  our  duty  as  we  see  it, 
and  when  we  do  this,  I  am  sure  the  "people"  will  at  least  give  us  credit  for  the 
courage  of  our  convictions.  Therefore,  I  say  our  committee,  acting  upon  this  theory, 
have  deemed  it  wise  and  best  for  the  agriculturists  to  make  this  officer  appointive, 
and  in  this  case  to  depart  from  the  general  theory  that  the  people  must  have  a  direct 
voice  in  a  general  election,  in  the  selection  of  the  officers  Vyho  are  to  serve  them. 

We  have  already  provided  for  several  exceptions  to  this  general  rule  in  the  work 
which  we  have  heretofore  accomplished,  and  our  committee  have  thought  It  best  to 
make  an  exception  in  this  case. 

Now,  Mr.  Chairman,  what  is  the  effect  of  the  election  of  the  Commissioner  of 
Agriculture  by  the  people.  It  simply  means  that  a  vast  number  of  people  living  in 
the  cities,  a  vast  number  of  people  engaged  in  other  pursuits  than  that  of  agricul- 
ture, who  are  very  remotely  interested  in  that  important  industry,  will  have  a  voice 
in  the  selection  of  a  Commissioner  of  Agriculture,  will  be  called  upon  to  vote  for  an 
officer  in  whose  case  they  feel  no  interest  whatever,  and  about  whom  and  whose  fitness 
and  capacity  they  know  nothing  and  care  less.  It  was  to  obviate  that  trouble,  and  to 
obviate  the  necessity  of  calling  upon  the  people  in  the  cities  to  elect  a  Commissioner 
of  Agriculture,  it  was  to  avoid  the  necessity  for  calling  upon  the  professors  of  col- 
leges, of  calling  upon  lawyers,  doctors,  and  other  professional  men,  manufacturers 
and  other  business  men,  to  elect  an  officer  in  whom  they  had  no  interest  whatever,  and 
about  whose  duties  they  know  nothing,  it  is  impossible  in  a  general  election  by  the 


2050 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


people  at  large,  as  I  conceive  it,  to  eliminate  the  one  set  of  electors  such  as  I  have 
mentioned  from  the  other.  It  is  impossible  to  say  the  farmers  alone,  under  any 
general  election  scheme,  can  elect  their  Commissioner  of  Agriculture,  and  that  th© 
residents  of  the  cities  and  people  engaged  in  other  pursuits,  entirely  different  from 
that  of  agriculture,  may  not  have  a  voice  in  it,  and  it  was  for  that  purpose  that  the 
election  in  this  case,  at  least,  was  sought  to  be  dispensed  with. 

The  gentleman  from  Louisa  (Mr.  Gordon)  has  stated  that  the  farmers  should 
select  these  men  because  the  farmers  are  experts.  Now,  Mr.  Chairman  I  think, 
with  all  due  deference  to  the  gentleman,  and  with  all  due  deference  to  the  farmers, 
that  they  are  not,  as  a  rule,  expert  agriculturists.  They  do  not  as  a  class  claim  to 
be  scientific  agriculturists.  Certainly  the  merchants,  manufacturers,  and  professional 
men  living  in  cities  are  not  supposed  to  be  capable  of  deciding  upon  the  expert  and 
technical  qualifications  of  a  person  who  is  to  fill  the  ofBce  of  the  Commissioner  of 
Agriculture.  We  all  know  farmers  are  not  experts  as  a  class;  they,  as  a  rule,  are  too 
much  disposed  to  follow  in  the  old  rut  and  methods  of  their  fathers  and  of  their 
forefathers,  and  it  was  for  the  purpose  of  getting  them  out  of  these  old  methods, 
which  are  impracticable  and  not  based  upon  scientific  principles  that  it  has  been 
deemed  wise  by  this  committee  to  establish  this  Bureau  of  Agriculture;  and  it  is  for 
the  same  reason  that  it  has  been  thought  expedient  that  an  expert,  scientific  officer 
should  be  provided  for  the  farmers  to  aid  and  counsel  them  in  the  higher  art  of 
agriculture.  I  am  sure  the  gentleman  from  Louisa  would  not  desire  the  city  people 
to  select  for  his  people  a  Commissioner  of  Agriculture. 

Who  is  better  able  to  judge  of  the  abilities  of  the  man  who  is  sought  to  be  placed 
in  this  position?  Why,  Mr.  Chairman,  these  people  representing  the  various  dis- 
tricts, the  various  sections  of  the  State,  the  intelligent  people,  who  can  come  to- 
gether and  discuss  the  abilities  and  qualifications  of  an  individual,  and  present  his 
name  to  the  Governor,  who  in  turn  nominates  him  and  refers  that  nomination  to  the 
Senate  for  confirmation.  I  think  it  is  unwise,  Mr.  Chairman  and  gentlemen,  to  under- 
take to  elect  a  Commissioner  of  Agriculture  by  people  representing  the  various  in- 
dustries and  branches  of  business  which  have  no  interest  whatever  in  the  matter  of 
agriculture,  and  I  hope  the  committee  will  vote  down  the  amendment  offered  by  the 
gentleman  from  Page,  and  allow  the  provision  as  embodied  in  this  section  of  the  re- 
port to  be  reported  to  the  Convention. 

Mr.  Parks:  Mr.  Chairman,  the  gentleman  from  Russell  (Mr.  Stuart),  for  whom 
I  have  the  highest  regard,  says  he  cannot  see  what  use  the  Department  of  Agricul- 
ture will  be,  and  that  it  will  be  neither  useful  nor  ornamental.  This  report  does 
not  propose,  and  I  shall  certainly  not  propose  by  any  amendment  I  offer  to  define 
the  duties  of  this  board.  I  leave  the  board  to  be  selected  just  as  the  committee  has 
reported  it,  to  be  appointed  by  the  Governor.  The  commissioner  will  simply,  by 
virtue  of  his  office,  be  a  member  of  that  board.  The  duties  of  the  board  will  be  pre- 
scri^bed  and  defined  by  the  General  Assembly,  and  the  Board  of  Agriculture  will  have 
control  of  the  whole  matter. 

Now,  as  to  the  people  selecting  the  officer  by  their  votes.  It  is  claimed  it  re- 
quires a  peculiar  sort  of  man.  In  some  respects  it  does,  but  we  have  men  who  are 
qualified  for  the  place,  and  who  are  active  farmers,  engaged  actively  and  continually 
in  the  business  of  farmers ;  and  I  would  say  to  the  gentleman  from  Russell  and  to 
the  gentleman  from  Loudoun  (Mr.  Fairfax)  that  if  my  amendment  is  adopted,  and 
either  one  of  them  will  consent  to  become  a  candidate,  I  will  guarantee  him  the  sup- 
port of  the  farmers  of  my  county  for  the  position;  and  we  will  get  a  good  man  in 
either  instance. 

It  is  true  that  people  in  the  cities  will  have  a  right  to  vote  for  this  officer,  Just 
as  the  people  in  the  cities  have  a  right  to  vote  for  other  officers  in  whom  the  farm- 
ers are  equally  interested.    The  people  of  the  cities  are  interested  in  agriculture.  As 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIHGIXIA. 


2051 


has  been  stated  by  another,  wiser  than  I  am,  if  you  destroy  the  cities  and  leave  the 
farms,  the  farmers  will  build  up  the  cities;  but  if  you  destroy  the  farms,  the  cities 
must  go  down.  The  people  in  the  cities  are  interested  in  agriculture,  ajid  certainly 
they  will  do  no  harm  in  this  regard,  but  will  come  up  shoulder  to  shoulder  with  the 
farmers,  taking  advice  from  the  farmers  as  to  who  is  the  best  man  for  the  place,  and 
cast  their  votes  for  a  fit  man  for  the  position.  I  simply  repeat  what  I  said  before,  that 
while  we  have  said  the  superintendent  of  schools  should  be  elected,  it  is  well  known 
the  people  in  the  country  desire  the  election  of  school  trustees.  We  have  declined  to 
give  them  that  for  a  good  reason.  In  m^ny  cases  they  wanted  to  elect  the  judges 
by  the  people.  I  did  not  think  that  was  wise,  and  I  voted  against  it,  but  I  say  this 
Convention  can  do  nothing,  in  my  judgment,  that  will  recommend  the  work  we  pro- 
pose to  accomplish  here  more  than  to  give  to  the  farmers  of  the  State  of  Virginia  the 
right  to  say  who  shall  be  at  the  head  of  the  Agricultural  Department  in  the  State.  I 
think  it  will  be  wise  and  politic  on  our  part  to  do  that,  and  at  the  same  time  I  think 
it  will  be  just.  It  will  bring  the  people  more  in  touch  with  this  department  of  the 
government  than  they  have  been  in  the  past.  They  are  growing  more  in  touch  with  it, 
sir,  and  that  is  what  I  want  to  accomplish,  to  bring  the  farmers  more  in  touch  with 
this  department;  and  we  can  do  it  by  giving  them  the  selection  of  the  head  of  the 
department. 

Mr.  Pedigo:  What  is  the  reason  you  are  not  willing  to  let  the  several  congres- 
sional districts  elect  their  members  to  that  board,  instead  of  having  the  Governor  ap- 
point them?  Do  you  not  think  farmers  in  the  country  are  as  well  qualified  to  elect 
that  board  as  is  the  Governor? 

Mr.  Parks:  I  have  no  doubt  of  that,  sir;  but  I  do  not  care  to  cumber  them  with 
the  election  of  too  many  officers,  and  I  think,  as  the  duties  of  this  board  are  pre- 
scribed by  the  General  Assembly,  if  they  are  appointed  by  the  Governor  and  con- 
firmed by  the  General  Assembly,  it  will  be  all  that  is  necessary. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  of  the  gentle- 
man from  Page  (Mr.  Parks),  which  thue  Secretary  will  read. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  28 ;  noes,  32. 

The  Chairman:    Are  there  any  further  amendments  proposed  to  Section  1? 

Mr.  Gwyn:  I  offer  the  following  amendment:  In  line  3,  after  the  words  "who 
shall  be"  make  it  read  this  way:  "There  shall  be  a  Board  of  Agriculture  and  Immi- 
gration, composed  of  one  member  from  each  congressional  district  in  the  State,  who 
shall  be  a  practical  farmer,  appointed  by  the  Governor,  subject  to  the  confirmation 
of  the  Senate,"  etc. 

Mr.  Stuart:  Mr.  Chairman,  I  appreciate  the  view  stated  by  the  gentleman  from 
Grayson  (Mr.  Gwyn)  in  introducing  those  words,  and  I  have  no  doubt  his  motive  is  a 
perfectly  good  one,  and  one  that  I  should  be  very  glad  to  see  carried  out.  Some  dif- 
ficulties occur  to  me,  however,  as  to  what  would  be  the  definition  of  the  term  "a 
practical  farmer."  I  really  am  not  able  to  give  one  myself.  Some  people  think  it 
is  the  man  who  can  make  money  on  a  farm.  I  do  not  see  that  that  would  give  him 
any  qualification  for  the  special  duties  involved  in  this  provision.  However,  I  am 
not  at  all  wedded  to  the  exact  language  proposed  here,  and  if  it  is  the  sentiment  of 
the  body  that  it  would  be  better  to  incorporate  those  words,  I  shall  offer  no  objection. 

Mr.  Barbour  proposed  an  amendment  making  the  members  of  the  Board  of  Agri- 
culture elective  by  the  people. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes.  29;  noes,  39. 

Mr.  Parks:  I  desire  to  add  these  words  after  the  word  "immigration,"  in  line  11: 
"But  shpll  have  no  vote  in  the  selection  of  the  officers  to  be  selected  by  said  board." 
The  whole  section  would  then  read:  "The  rector  of  the  Board  of  Visitors  and  the 
president  of  the  Polytechnic  Institute  shall  be  members  ex-officio  of  the  Board  of  Immi- 
gration, but  shall  have  no  vote  in  the  selection  of  the  officers  to  be  selected  by  said 
board." 


2053 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Mr.  Stuart:  You  will  observe  the  relation  between  the  Department  of  Agricul- 
ture and  the  Polytechnic  Institute  are  made  reciprocal.  I  should  like  to  ask  you 
if  you  further  wish  that  the  president  of  this  Board  of  Agriculture  and  the  Com- 
missioner of  Agriculture,  who  are  to  be  ex-officio  members  of  the  board  of  the  Poly- 
technic Institute,  should  likewise  be  deprived  of  the  power  of  participation  in  the 
election  of  officers  there?  I  thought  it  proper  at  this  point  to  call  your  attentidn 
to  the  reciprocity  which  is  made  exact  in  this  case  between  the  two  institutions. 

Mr.  Parks:  I  had  noticed  that,  and  I  confess,  sir,  I  had  intended  when  I  reached 
that  point  to  move  to  strike  that  out  absolutely;  but  still,  if  it  is  retained,  I  would 
be  glad  to  have  that  amendment,  that  they  should  have  no  vote  in  the  selection  of 
the  officers  at  Blacksburg. 

Mr.  Stuart:  I  only  wanted  to  ask  the  questiion  whether  it  had  escaped  your  at- 
tention. Mr.  Chairman,  I  shall  object  very  seriously  to  any  such  provision  as  that. 
The  object  of  providing  these  reciprocal  relations  is  to  arouse  the  interest  of  one  in 
the  other,  and  to  make  each  participate  in  the  affairs  of  the  other,  which  would  be 
Impossible,  under  the  amendment  offered  by  the  gentleman  from  Page  (Mr.  Parks). 
Of  what  use  would  these  members  be  if  they  were  in  any  way  to  be  deprived  of  the 
powers  that  belong  to  the  other  members  of  the  board? 

So  far  as  I  am  concerned,  I  have  always  been  one  of  those  who  thought  that  any 
executive  officer  had  a  right  himself  to  choose  his  immediate  subordinates.  That  is 
a  thing  which  I  do  not  think  ought  to  be  even  in  the  power  of  a  board,  nor  do  I 
think  there  ought  to  be  anything  to  exclude  any  member  of  the  board  from  partici- 
pating in  everything  that  every  other  member  of  the  board  can  do.  I  think  the 
powers  which  are  to  be  laid  down  and  provided  by  law,  as  expressed  I'n  this  report, 
should  be  equal  to  each  and  every  member  of  the  board. 

Mr.  Fairfax:  Mr.  Chairman,  one  reason  for  having  these  reciprocal  relations  be- 
tween the  Polytechnic  School  and  the  Board  of  Agriculture  is  that  we  hear  rumors 
and  we  have  hopes  that  the  United  States  Government  will  make  additional  appro- 
priations to  these  institutions  throughout  the  United  States.  Those  appropriations 
must  go  through  the  institutions  of  learning,  like  the  Virginia  Polytechnic  Institute, 
which  receives  now  $15,000  or  $18,000  a  year  from  the  United  States  Government. 
If  the  States  are  allowed  an  additional  appropriation  for  this  interest,  we  want  the 
farmers  of  the  State,  through  their  Board  of  Agriculture,  to  reap  some  of  the  benefits 
that  will  be  brought  to  us  by  the  additional  appropriation. 

Mr.  O'Flaherty:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  gentleman 
from  Page  (Mr.  Parks)  to  the  fact — and  doubtless  he  has  seen  the  effect  of  it — 
that  if  the  words  he  proposes  to  add  are  adopted,  he  destroys  entirely  the  usefulness 
of  these  members  on  the  board.  If  they  have  no  power  to  vote,  I  do  not  see  what 
necessity  there  will  be  for  their  being  on  the  board. 

The  chairman  of  the  committee  has  already  called  attention  to  the  fact  that 
there  are  reciprocal  duties  and  powers  and  privileges  between  these  men.  I  doubted 
the  wisdom  of  that  at  first,  but  after  hearing  the  matter  discussed  the  gentlemen  of 
the  com-mittee  will  remember  it  was  at  my  instance  that  this  board  was  appointed. 
They  will  remember  I  took  a  deep  interest  in  agricultural  matters,  and  ever  since 
this  committee  has  been  in  existence  I  have  had  it  dinged  into  my  ears  that  there 
is  a  fight  between  the  Board  of  Agriculture  of  the  State  and  Blacksburg.  They  say 
it  has  been  going  on  for  years.  I  do  not  know  anything  about  that,  but  I  believe  a 
union  of  interests  would  be  the  best  thing  that  could  be  had.  The  committee  believed 
that  if  we  forced  one  of  these  departments  under  the  other  without  a  union  of  inter- 
ests, and  a  union  of  sentiment,  it  would  not  be  a  perfect  union  and  would  do  no  good. 
Therefore,  I  agreed,  and  I  think  it  was  wise,  that  the  members  of  Blacksburg  should 
be  ex-officio  members  of  the  Board  of  Agriculture,  and  that  the  members  of  the  Agri- 


DEBATES  OE  THE  CONSTITUTIOIsTAL  CONVENTION  OE  VIRGINIA.  2053 

culture  and  Immigration  Board  should  have  power  and  voice  in  regard  to  the  election 
of  officers  at  Blacksburg,  and  in  that  way  the  two  would  be  brought  together. 

I  do  not  believe  you  will  ever  hereafter  have  any  friction.  I  do  not  believe  you 
will  ever  hereafter  have  any  talk  in  regard  to  this  matter,  because  you  will  have 
a  union  of  interests,  and  if  you  adopt  the  amendment  of  the  gentleman  from  Page, 
you  destroy  the  symmetry  of  the  proposition  we  offered  to  the  committee.  We  have 
considered  it  well.  We  have  striven  to  do  that  which  will  be  for  the  best  interests 
of  the  agricultural  people  of  the  State;  and  again  I  say  if  you  adopt  the  amendment 
of  the  gentleman  from  Page,  you  might  as  well  strike  out  those  lines,  and  I  hope 
it  will  not  be  done,  I  believe  in  the  future  the  interests  of  Blacksburg  College  will 
be  in  harmony  with  the  interests  of  the  Agricultural  Department,  and  the  money  that 
the  State  of  Virginia  is  indirectly  receiving  from  the  government  of  the  United  States 
will  be  better  utilized.  As  it  is  now,  gentlemen,  we  find  there  are  several  departments 
to  our  agricultural  interests  in  Virginia,  one  at  Blacksburg,  working  independently, 
and  one  here;  and  there  is  friction,  and  there  may  be  jealousy.  I  think  there  is,  and 
I  believe  this  will  do  away  with  it.  I  do  hope  the  gentleman's  amendment  will  be 
voted  down. 

Mr.  Parks:  Mr.  Chairman,  I  wish  to  say  to  the  gentleman  from  Warren  (Mr. 
O'Flaherty)  that  my  amendment  does  not  contemplate  that  those  members  shall  not 
have  a  vote  upon  anything,  but  simply  that  they  shall  have  no  vote  in  the  selection 
of  the  officers  that  the  board  may  be  authorized  by  the  General  Assembly  to  select. 
I  will  state  further  that  I  know"  the  fact  that  since  1895-96  at  every  session  of  the 
General  Assembly  there  has  been  an  effort  to  take  the  entire  Department  of  Agri- 
culture from  the  city  of  Richmond  to  Blacksburg;  and  if  you  will  give  to  Blacksburg 
more  power,  it  will  only  increase  that  effort. 

Mr.  O'Flaherty:  I  will  say  to  the  gentleman  that  I  fully  appreciate  that- situa- 
tion. I  want  to  know  how  it  will  be  possible  for  three  members  to  outvote  ten  mem- 
oers,  and  remove  the  department,  if  it  were  possible  to  remove  it.  which  it  will  not 
oe  under  the  provisions  we  have  made,  with  the  further  power  and  ability  on  the 
part  of  the  General  Assembly  to  increase  this  board.  How  would  it  be  possible  for 
those  three  members  to  override  the  vote  of  at  least  ten  others?  It  can  never  be  un- 
less the  representation  in  Congress  is  reduced.  I  appreciate  the  fact  that  there  has 
been  a  motive  of  that  kind;  but  here  we  have  Blacksburg,  it  seems  to  me,  more  safe 
than  it  has  ever  been. 

Mr.  Brown:  The  gentleman  has  stated  that  since  1895-1896  there  has  been  an 
effort  made  at  every  session  of  the  General  Assembly  to  remove  the  Board  of  Agri- 
culture from  Richmond  to  Blacksburg.  I  desire  to  ask  kthe  gentleman  if  he  asserts 
that  influence  has  been  exerted  by  the  authorities  at  Blacksburg. 

Mr.  Parks:  I  am  not  able  to  say  that,  but  I  know  that  the  president  of  Blacks- 
burg was  before  the  committee,  and  I  heard  him  make  a  speech  in  favor  of  it. 

Mr.  Brown:  I  desire  to  state  to  the  gentleman  that  at  the  last  session  of  the 
General  Assembly,  v/hen  the  matter  of  the  fertilizer  act  was  up,  members  of  the 
Blacksburg  board  were  approached  and  asked  to  take  part  in  such  a  movement  as 
that,  and  declined  to  do  so;  and  I  want  to  state  here  and  now  on  this  floor  that  this 
is  no  movement  on  the  part  of  Blacksburg  to  remove  the  Department  of  Agriculture 
to  Blacksburg,  but  that  is  an  endeavor  to  have  these  boards  put  into  thorough  inter- 
communication with  the  agricultural  interests  of  the  State. 

Mr.  Keezell:  Mr.  Chairman,  I  am  exceedingly  desirous  to  see  some  amicable  ar- 
rangement between  the  Blacksburg  school  and  the  Agricultural  Department.  I  believe 
there  ought  to  be  a  harmony  of  interest  between  these  Institutions.  They  ought  both 
to  have  the  same  object  in  view,  and  they  ought  to  be  able  to  work  together  in  such  a 
way  as  to  accomplish  that  object.  I  have  thought  that  for  a  long  time,  and  as  a  mem- 
ber of  the  General  Assembly  have  been  willing  to  vote  for  such  a  proposition,  but  I 


2054  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

very  much  question  whether  the  provision  in  this  report  is  calculated  to  bring  that 
about.  I  should  like  to  see  the  lion  and  the  lamb  lie  down  together  in  harmony,  but 
I  do  not  want  to  see  the  lamb  lie  down  inside  the  lion.  (Laughter.).  That  is  not  my 
idea  about  harmony  at  all. 

When  you  examine  this  report  you  will  see  that  you  are  giving  to  the  rector 
and  to  the  chairman  of  the  faculty  at  Blacksburg  as  much  power  as  you  are  giving 
to  the  representatives  of  two  congressional  districts.  You  are  taking  one-fifth  of  all 
the  power  that  the  people  have  in  the  congressional  districts  and  giving  it  to  the 
Blacksburg  board.    That  is  one  objection  I  have  to  this  arrangement. 

I  have  another  objection.  I  do  not  believe  in  these  ex-officio  appointments  on 
any  board.  They  might  be  first-class  to-day.  I  have  no  doubt  that  if  the  rector  of 
the  board  at  Blacksburg  and  the  president  of  that  institution  now  were  made  members 
of  the  Agricultural  Board,  you  would  have  two  most  excellent  and  competent  men; 
but  I  do  not  know  how  that  may  be  ten  or  fifteen  years  from  now. 

Mr.  Stuart:  I  should  like  to  know  from  you  your  views  as  to  what  power  would 
remove  this  agricultural  department  from  Richmond.  "Where  would  the  power  come 
from  for  its  removal?  Where  is  it  lodged  in  this  report?  Is  it  not  left  with  the 
General  Assembly? 

Mr.  Keezell:  I  am  not  speaking  now  so  much  with  reference  to  its  being  located 
at  Richmond  or  at  Blacksburg.  I  am  talking  about  the  control  of  the  board  and  its 
affairs.  The  point  I  was  objecting  to  was  that  they  would  have  just  as  much  control, 
so  far  as  the  management  of  all  the  interests  connected  with  the  Agricultural  De- 
partment are  concerned,  as  would  the  representatives  of  two  congressional  districts. 

I  do  not  know  whether  under  this  provision  which  says  the  principal  office  shall 
remain  in  the  city  of  Richmond  it  could  be  moved  from  Richmond  or  not.  I  under- 
stand the  chairman  of  the  committee  has  stated — and  I  have  no  doubt  he  has  stated 
it  perfectly  frankly  and  fairly,  that  he  does  not  think  it  ought  to  be  removed  from 
Richmond.  I  do  not  think  it  ought  to  be  removed  from  Richmond  ,but  I  do  not  know 
whether  you  guard  against  it  when  you  make  this  provision  here  that  says  the 
principal  office  shall  be  retained  in  Richmond.  It  might,  to  all  intents  and  purposes, 
be  removed  from  Richmond,  and  yet  its  principal  office  might  remain  in  the  city  of 
Richmond.  I  do  not  know  how  that  might  be,  but  the  principal  objection  I  have  to  it 
is  (and  for  that  reason  I  do  not  know  whether  I  am  going  to  vote  for  the  amendment 
of  the  gentleman  from  Page  (Mr.  Parks)  or  not  that  I  object  to  putting  ex-officio 
members  into  these  boards.  I  think  men  ought  to  be  appointed  to  Blacksburg  with 
reference  to  their  fitness  for  managing  the  affairs  at  Blacksburg,  and  that  the  Gov- 
ernor ought  to  select  those  men  with  reference  to  that  matter. 

I  think  the  same  about  the  Agricultural  Department,  that  if  the  Governor  is  to 
appoint  these  members,  they  ought  to  be  appointed  with  reference  to  their  fitness  for 
this  particular  work.  For  that  reason  I  do  not  want  to  cumber  either  the  board  at 
Blacksburg  or  the  agricultural  board  with  ex-officio  members  who  may  to-day  be  first- 
class  people  for  the  business  and  ten  years  from  now  might  be  very  improper  persons. 

I  am  very  much  disposed  to  offer  as  a  substitute  to  the  amendment  of  the  gen- 
tleman from  Page  that  we  strike  out  that  whole  provision  from  line  9  to  line  12. 

The  Chairman:  Does  the  Chair  understand  the  gentleman  from  Rockingham  to 
make  that  motion? 

Mr.  Keezell:  Yes,  sir;  and  in  making  that  motion  I  want  it  distinctly  understood 
that  I  am  in  favor  of  such  legislation  as  will  bring  the  Agricultural  Department  and 
the  department  at  Blacksburg  into  the  very  closest  harmony,  but  I  think  it  is  very 
dangerous  to  undertake  to  put  into  the  Constitution  a  cast-iron  provision  which  might 
prove  very  ineffective  in  accomplishing  the  results  which  it  is  endeavoring  to  ac- 
complish. 

Mr.  Mcllwaine:     Mr.  Chairman,  In  support  of  the  motion  just  made  by  the 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2055 


gentleman  from  Rockingham  (Mr.  Keezell)  I  hold  in  my  hand  two  letters  which  I 
received  in  the  mail  this  morning  from  my  constituents  which  seem  to  take  identically 
the  same  view  held  by  the  gentleman.  Both  of  them  are  from  gentlemen  of  intelli- 
gence and  education.  One  of  them  is  a  large  farmer;  the  other  man  lives  on  a  farm 
and  does  some  farming.    One  of  them  says: 

As  the  mail  is  about  to  go  out,  I  will  urge  upon  you  to  use  your  influence  against 
the  proposed  changes  in  the  Agricultural  Board.  It  is  doing  the  best  work  now 
it  has  ever  done,  in  my  opinion,  and  any  tampering  with  the  present  law  may  result 
in  evil. 

The  other  gentleman  expresses  the  same  views,  and  then  adds; 

I  am  sorry  to  see  that  it  is  probable  that  the  president  of  the  Polytechnic  Insti- 
tute and  the  rector  of  the  Board  of  Visitors  of  said  school  will  have  anything  to  do 
with  the  State  Department  of  Agriculture.  That  school  has  not  been  worth  a  row  of 
pins  (laughter)  to  the  farmers  of  Southside  Virginia.  The  bulletin  sent  out  from  that 
institution  is  not  practicable.  The  last  three  sent  me  treated  of  how  to  cure  dog 
distemper,  how  to  raise  forestry,  etc.  (laughter). 

Nov>",  sir,  we  have  a  superfluity  of  dogs  in  Southside  Virginia  and  a  superfluity 
of  trees. 

Mr.  Stuart:  Mr.  Chairman,  I  dislike  very  much  to  address  the  committee  so 
often.  The  gentleman  from  Rockingham  (Mr.  Keezell)  seems  to  object  to  this  pro- 
vision here  which  is  necessary  to  the  very  thing  he  seems  to  approve  of.  He  says  he 
thinks  there  ought  to  be  reciprocal  relations,  but  he  is  opposed  to  the  only  thing  we 
have  been  able  to  think  of  which  would  provide  reciprocal  relations.  I  have  asked 
both  the  gentleman  from  Page  (Mr.  Parks)  and  the  gentleman  from  Rockingham 
(Mr.  Keezell)  to  give  me  a  direct  answer  to  a  direct  question — what  control  these  two 
members  from  the  Polytechnical  Institute  could  have  of  the  question  of  moving  this 
department  from  this  city?  What  control  will  these  two  representatives  from  Blacks- 
burg  have  of  the  question  of  the  situs  of  the  agricultural  bureau  by  reason  of  their 
membership  on  the  agricultural  board?  Can  the  board  usurp  powers  that  are  left 
by  the  Constitution  in  the  hands  of  the  General  Assembly? 

Mr.  Parks:  The  whole  thing  will  be  a  nullity  unless  the  General  Assembly  car- 
ries it  into  effect. 

Mr.  Stuart:  That  is  perfectly  true,  but  we  are  leaving  it  in  the  hands  of  the 
General  Assembly,  and  your  views  are  based  upon  the  assumption  that  two  members 
from  Blacksburg  and  one  member  from  the  Ninth  congressional  district  can  exercise 
more  power  than  all  the  rest  of  the  State  east  of  the  Alleghanies. 

Mr.  Parks:  Not  at  all.  Those  two  members  will  have  their  influence  with  the 
other  members  of  the  board.  I  wanted  to  prevent  that,  so  far  as  I  am  concerned, 
although  my  motion  was  not  to  strike  out  that  at  all.  If  the  committee  thinks  it 
will  break  down  the  rivalry  between  these  two  institutions,  and  bring  them  into 
harmony.  I  was  v.'illing  to  leave  it  there,  but  at  the  same  time  I  agree  with  the  gen- 
tleman from  Rockingham  (Mr.  Keezell)  as  to  the  unwisdom  of  appointing  men  to 
positions  by  reason  of  constitutional  provisions  because  they  hold  some  other  oflBce. 
I  am  opposed  to  ex-officio  mejnbers.  I  think  it  unwise,  but  still  I  was  willing  to  yield 
that  point  to  the  committee,  provided  these  men  had  no  vote  in  the  selection  of 
officers.    That  was  as  far  as  my  amendment  went. 

Mr.  Stuart:  I  understand  the  gentleman,  then,  to  favor  reciprocal  relations,  but 
to  object  to  the  measure  which  is  the  only  means  of  securing  them. 

As  regards  the  letters  read  by  the  gentleman  from  Prince  Edward  (Mr.  Mcll- 
■waine),  I  will  say  I  have  had  a  number  of  such  letters.  I  will  not  undertake  to  say 
whence  the  letters  he  has  read  emanated,  but  I  will  say  that  mine  emanated  from  the 


2056  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

ex  parte  statements  of  interested  parties  and  were  generally  written  in  response, 
and  in  direct  response,  to  entreaties  from  such  interested  parties  to  address  letters  to 
members  of  this  Convention.  I  state  that  as  the  history  of  those  I  have  received, 
and  I  will  state  further  my  opinion  or  surmise  that  he  might  find  the  same  to  he  true 
in  regard  to  those  he  has  read,  without  casting  any  insinuations  on  the  character  of 
the  gentlemen  who  wrote  the  letters. 

Mr.  Mcllwaine:  All  I  know  about  the  letters,  sir,  is  that  I  received  them  from 
these  gentlemen  through  the  mail  this  morning,  and  I  know  the  gentlemen  to  be  up- 
right, intelligent,  honorable  men,  whose  opinions  are  worthy  of  consideration. 

Mr.  Stuart:  So  are  my  correspondents,  and  that  is  the  reason  they  were  selected 
to  write  the  letters. 

On  motion  of  Mr.  Eggleston,  the  committee  rose  and  the  President  resumed  the 
chair. 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow 
Thursday,  January  30,  1902,  at  10  o'clock  A.  M. 


THURSDAY,  January  30,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  i  .  M.  Maxey,  D.  D. 

Mr.  Green:    I  beg  leave  to  submit  the  report  of  the  Committee  on  the  Preamble 
and  Bill  of  Rights,  and  ask  that  it  lie  on  the  table  and  be  printed. 
It  was  so  ordered. 

Mr.  Fairfax:    I  am  instructed  by  the  Committee  on  Taxation  and  Finance  to  pre- 
sent the  report  of  that  committee,  and  request  that  it  lie  on  the  table  and  be  printed. 
It  was  so  ordered. 

On  motion  of  Mr.  Stuart,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Agriculture, 
Industrial  and  Manufacturing  Interests  and  Immigration,  Mr.  Glass  in  the  chair. 

The  Chairman:  The  question  before  the  committee  is  on  the  adoption  of  the 
amendment  of  the  gentleman  from  Page  (Mr.  Parks). 

Add  at  the  end  of  line  11,  Section  1,  the  following: 

But  who  shall  have  no  vote  in  the  selection  of  the  officers  to  be  selected  by  said 
board. 

The  paragraph  would  then  read:  The  rector  of  the  Board  of  Visitors  and  the  presi- 
dent of  the  Polytechnic  Institute  shall  be  members  ex-officio  of  the  Board  of  Agricul- 
ture and  Immigration,  but  who  shall  have  no  vote  in  the  selection  of  the  officers  to  be 
selected  by  said  board. 

Mr.  Parks:  I  suggest  striking  out  the  word  "who"  after  the  word  "but,"  as  it  is 
not  necessary. 

The  Chairman:    That  will  be  done,  without  objection. 

Mr.  Brown:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  take  it  there  is  a 
wide  field  of  usefulness  in  this  State  for  a  properly  constituted  Board  of  Agriculture. 

In  no  State  of  the  Union  are  there  greater  possibilities  than  in  Virginia;  and  no 
question  of  greater  moment  to  the  interests  of  agriculture  in  this  State  can  present 
itself  than  the  one  now  under  consideration. 

A  proper  determination  of  it  means  the  establishment  of  a  principle  that  will 
underlie  and  prove  the  foundation  of  all  really  successful  effort  for  an  early  upbuild- 
ing and  advancement  of  the  agricultural  interests  of  this  State. 


DEBATES  OF  THE  COXSTITUTIONAL  COXYEXTIOX  OE  VIRGINIA.  2057 

It  means  the  separate  and  independent  establishment,  but  the  permanent  unifi- 
cation in  interest,  of  the  varied  agencies  working  for  the  advancement  of  the  agricul- 
tural interest  along  progressive  lines. 

We  are  at  the  parting  of  the  ways;  a  false  step  now  will  have  serious  conse- 
quences. 

It  would  make  possible  a  continuance  of  the  lack  of  community  of  interest  and 
sympathy  between  the  great  agencies  that  can  and  should  work  together  unselfishly 
for  the  benefit  of  agriculture  in  Virginia,  and  would  perpetuate  indefinitely  present 
unprogressive  methods,  with  the  hard  struggle  for  the  survival  of  the  fittest,  unaided 
by  united  and  intelligent  direction  and  by  scientific  research,  and  by  practical  demon- 
stration of  the  usefulness  of  the  results  obtained.  Harmonious  and  joint  effort  of  all 
agencies  established  for  the  benefit  of  agriculture  is  needed  to  secure  success. 

To  this  end  cordial  relations  should  be  established  between  the  Board  of  Agricul- 
ture and  the  Board  of  Visitors  of  the  Agricultural  College  and  their  officers. 

The  provision  of  the  report  that  makes  the  president  of  the  board  and  the  Com- 
missioner of  Agriculture  and  Immigration  members  ex-officio  of  the  Board  of  Visitors 
of  the  Virginia  Polytechnic  Institute,  and  the  rector  of  the  Board  of  Visitors  and  the 
president  of  the  Virginia  Polytechnic  Institute  members  ex-officio  of  the  Board  of 
Agriculture  is  the  necessary  step  to  insure  the  most  cordial  relations  between  the 
two  institutions. 

In  almost  every  other  State  such  harmony  and  mutual  help  exists  and  is  made 
possible  by  just  such  a  provision  as  is  here  proposed. 

I  desire  just  here  to  most  emphatically  deny  any  suggestion  that  the  authorities 
at  Blacksburg  desire  in  any  way  to  absorb  or  interfere  with  the  proper  functions  of 
the  Board  of  Agriculture.  In  an  editorial  of  the  28th  on  the  subject  of  this  report  the 
Richmond  Dispatch  says: 

The  report  of  the  committee  submitted  to  the  Constitutional  Convention  yester- 
day not  only  proposes  to  reorganize  the  Board  of  Agriculture  of  this  State  and  take 
from  the  Governor  the  appointment  of  the  commissioner,  but  may  result  in  the  de- 
partment's being  moved  from  Richmond.  It  is  understood  that  Blacksburg  would  very 
much  like  to  have  it.  Should  the  proposed  ordinance  be  inserted  in  the  new  Consti- 
tution it  probably  would  be  easier  than  ever  for  Blacksburg  to  get  it. 

I  can  authoritatively  deny  such  a  suggestion,  and  as  authoritatively  state  that 
the  sole  interest  the  Board  of  Visitors  of  che  college  feels  in  the  matter  under  dis- 
cussion is  entirely  impersonal  as  far  as  themselves  or  the  college  is  concerned,  and 
speaking  for  them  I  assert  that  they  are  solely  actuated  by  a  desire  to  see  such  a  pro- 
vision as  will  establish  such  a  community  of  interest  as  will  necessarily  result  in 
harmonious  and  cordial  relations  between  the  said  boards  in  their  common  efforts 
to  advance  the  agricultural  interests  of  the  State. 

The  proposed  provision  in  the  Constitution  that  there  shall  be  reciprocal  ex-of- 
flcio  membership  between  the  two  boards  emphasizes  the  fact  that  there  must  be  two 
boards  always  separate  and  distinct,  and  in  itself  denies  the  assertion  that  either 
board  can  absorb  the  other. 

The  joint  efforts,  on  the  other  hand,  of  the  two  boards  working  independently, 
but  in  harmony,  will  produce  most  valuable  results,  which  will  be  for  the  best  in- 
terests of  the  agriculture  of  the  State.  It  is  to  put  them  in  this  sympathetic  touch 
with  each  other  that  the  committee  has  wisely  made  the  provisions  It  has  recom- 
mended. 

One  of  the  great  State  agents  for  the  advancement  of  knowledge  in  agricultural 
pursuits  is  the  Virginia  Polytechnic  Institute,  the  Agricultural  and  Mechanical  Col- 
lege of  Virginia,  with  its  corps  of  scientific  investigators  along  lines  that  deal  with  the 
most  material  interests  of  agriculture. 

130 — Const.  Deb. 


2058  DEBATES  OF  THE  COA'STITUTIOXAL  COXVENTIOJsT  OE  VIRGINIA. 

The  investigations  of  the  Experiment  Station,  supported  entirely  by  funds  fur- 
nished by  the  United  States  Government,  and  the  work  of  the  college  in  stock  hus- 
bandry veterinary  science,  in  the  best  methods  of  the  manufacture  of  all  the  pro- 
ducts of  the  farm  into  canned  goods,  fruit,  jellies,  butter,  cheese^  and  all  creamery 
products,  and  the  valuable  work  of  the  department  of  horticulture  in  all 
branches,  and  particularly  in  its  attention  to  the  scientific  culture  and 
protection  of  fruits,  the  work  of  the  Board  of  Crop-Pest  Commissioners, 
and  the  Board  of  Quarantine  Commissioners,  and  the  success  of  the  college  in  all 
lines  of  practical  instruction,  are  well  known,  and  contribute  to  the  estimation  in 
which  it  is  held,  but  are  too  valuable  to  the  general  agricultural  interests  of  the 
State  not  to  be  made  free  use  of  by  the  Board  of  Agriculture.  All  these  active  forces 
should  be  and  are  at  the  disposal  of  the  Board  of  Agriculture,  and  I  support  with 
pleasure  this  report  of  the  Committee  of  Agriculture,  which  provides  for  a  line  of 
intercommunication  and  mutual  interest  between  the  Agricultural  College  and  the 
Board  of  Agriculture,  and  which  will  enable  them  to  work  together  in  the  greatest 
harmony  and  with  the  greatest  economy  of  money  and  energy. 

The  Board  of  Agriculture,  as  at  present  constituted,  is  restrained  and  restricted 
m  its  greatest  usefulness  and  its  highest  efficiency  by  the  vague,  unsatisfactory  and 
contradictory  nature  of  the  laws  defining  its  duties  and  powers,  and  especially  by 
the  fact  that  the  powers  of  the  board  and  of  its  administrative  ofllcer,  the  Commis- 
sioner of  Agriculture,  are  inconsistent  and  conflicting.  He  is  supposedly  the  officer 
of  the  board,  but  independent  of  it  by  reason  of  his  appointment  by  the  Governor 
and  not  by  the  board  itself. 

The  board  has  responsibility  to  the  public,  but  no  real  power  to  fulfil  its  obliga- 
tions, meet  its  responsibilities,  or  demonstrate  its  usefulness  to  the  fullest  extent. 

Responsibility  without  authority — a  fatal  position  for  any  man  or  set  of  men. 

Under  the  present  system  the  commissioner,  while  independent  of  the  board,  is  a 
member  of  it,  atteuds  all  its  meetings;  and  this  renders  a  fair  and  thorough  criticism 
of  his  administration  difficult. 

In  case  of  an  open  issue,  he  could  defy  the  board. 

Just  here  I  desire  to  state  that  I  am  entirely  impersonal  in  what  I  say,  as  I  am 
sure  the  present  commissioner  is  held  in  the  highest  esteem  by  his  official  associates, 
and  the  chairman  of  the  committee  has  spoken  of  his  work  in  the  highest  terms.  I 
simply  wish  to  emphasize  the  wisdom  of  the  committee  in  providing  that  he  shall 
be  an  officer  of  the  board  elected  by  and  responsive  to  It. 

A  board  of  several  members  must  be  intended  to  subserve  a  certain  purpose — 
presumably  the  advancement  of  the  agricultural  interests  of  the  State  in  the  differ- 
ent sections  represented  by  them  . 

With  tied  hands,  all  initiative  is  checked,  effort  and  enthusiasm  dampened,  good 
work  rendered  difficult  by  the  concentration  of  all  power  In  the  hands  of  one  not 
responsible  to  them. 

With  larger  powers,  more  voice  in  the  administration  of  the  affairs  of  the  de- 
partment, each  member  of  the  board  would  be  an  active  officer  of  the  body,  a  special 
commissioner,  as  it  were,  in  his  section  of  the  State,  in  close  touch  with  his  people. 
One-man  power  in  such  a  department,  and  especially  with  the  responsibility  so  ill- 
defined,  is  thoroughly  unsatisfactory. 

Power  granted  to  the  commissioner  to  appoint  all  assistants  would  greatly  increase 
and  intensify  the  evils  of  the  present  system.  Assistants,  dependent  upon  his  pleasure 
-for  reappointment,  would  be  active  workers  in  his  personal  interest. 

With  the  development  of  this  department  made  possible  by  the  constant  increase 
in  fertilizer  tax  (now  over  $30,000,  I  believe)  there  would  be  a  score  or  more  of 
officials  wholly  devoted  to  his  service. 

Such  a  system  is  unknown  in  our  State  or  the  South,  and  directly  opposed  to  our 
Democratic-Republican  ideas. 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2059 


Besides  the  otLer  evils  incident  to  one-man  power,  it  is  impossible  for  a  single 
man  adequately  to  deal  with,  the  various  agricultural  and  horticultural  interests  of 
the  State —  to  feel  equal  sympathy  with  all.  Hence  the  value  of  a  hoard  with  ade- 
qu3.te  powers,  representing  every  section  and  its  peculiar  interests. 

If  experts  are  to  he  employed,  or  scientific  assistants,  these  should  he  selected 
on  their  merits.  Such  a  selection  is  best  made  by  a  large  board,  not  by  an  individual 
who  is  not  directly  responsible  for  his  acts  or  at  best  only  remotely  so. 

The  department  should  rest  upon  the  confidence  and  support  of  the  agricultural 
public. 

A  representative  board  can  best  secure  such  support.  In  the  great  majority  of 
States,  and  particularly  those  in  which  the  Boards  of  Agriculture  are  most  efficient, 
there  is  no  commiss^ner,  but  a  secretary,  who  is  the  administrative  officer  of  the 
board,  elected  by  and  subject  tc  it. 

I  cite  the  composition  of  a  few  of  the  State  Boards  of  Agriculture  that  I  have 
convenient: 

Connecticut — Governor  a  member  ex-officio;  four  are  appointed  by  the  Governor; 
eight  elected  by  agricultural  societies.    Board  elects  a  secretary. 

Vermont — Governor  and  the  president  of  Agricultural  College  are  members  ex- 
officio;  three  members  appointed  by  Governor.    Board  elects  its  own  officers. 

Maine — President  of  Agricultural  College  and  director  of  experimental  station 
are  members  ex-officio;  sixteen  members  chosen  by  agricultural  societi&s.  Board 
elects  its  own  officers. 

New  York — Has  no  board;  only  a  commissioner  appointed  by  the  Governor  for 
three  years. 

South  Carolina — Has  neither  board  nor  commissioner,  but  the  duties  of  such  a 
board  are  discharged  by  the  trustees  of  Clemson  College,  and  the  secretary  of  the 
college  performs  the  duties  usually  assigned  to  a  secretary  of  agriculture, 

Michigan — Governor  and  president  of  Agricultural  College  members  ex-officio; 
six  members;  elect  officers.    Board  is  also  board  of  trustees  of  college. 

Illinois — Governor  ex-officio  member,  also  president  of  Agricultural  College; 
twentj'-two  members  chosen  by  congressional  districts;  elects  own  officers, 

Ohio — President  of  college  ex-officio  member;  ten  members  elected  by  the  dele- 
gates from  all  the  counties  in  the  State  which  regularly  hold  agricultural  fairs;  elects 
a  secretary. 

Rhode  Island — Governor,  Lieutenant-Governor,  and  Secretary  of  State  are  ex- 
'officio  members;  two  members  are  appointed  by  the  Governor:  ihree  are  appointed 
by  the  agricultural  societies;  one  by  State  Granges:  one  by  Rhode  Island  College  of 
Agriculture. 

Missouri — Governor,  superintendent  of  schools,  and  dean  of  Agricultural  College 
ex-Gfficio  members;  fifteen  members  appointed  by  Governor;  elects  its  officers. 

Massachusetts — Governor.  Lieutenant-Governor.  Secretary  of  Commonwealth,  and 
president  of  Agricultural  College  ex-officio  members:  three  members  appointed  by 
Governor:  thirty-four  chosen  by  the  incorporated  agricultural  and  horticultural  socie- 
ties; elects  its  officers,  including  a  secretary. 

Where  there  is  a  commissioner  vested  with  full  powers,  as  in  New  York,  there  Is 
no  Board  of  Agriculture,  for  there  is  nothing  for  the  board  to  do. 

Only  in  Virginia  does  such  an  illogical  condition  exist. 

Either  a  commissioner  with  full  powers,  as  in  New  York,  or  a  board  with,  the 
power  to  satisfactorily  meet  its  responsibilities,  as  in  the  other  States. 

The  committee  has  wisely  chosen  the  latter,  and  I  understand  that  the  present 
Board  of  Agriculture  concurs  with  them  in  this  position,  and  I  understood  the  chair- 
man of  the  committee  yesterday  to  state  that  the  president  of  the  Board  of  Agriculture 


3060  DEBATES  OF  TllS  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

had  written  him  a  letter  in  which  he  heartily  endorsed  the  whole  section  of  the  com- 
mittee's report  dealing  with  the  Board  of  Agriculture. 

If  this  Convention  does  not  reach  the  same  conclusion,  I  am  sure  there  is  a  failure 
to  grasp  the  true  inwardness  of  the  situation  and  the  vital  importance  of  the  principle 
involved.  It  will  be  noted  that  in  every  instance  cited — and  I  believe  it  is  the  practical 
rule  in  nearly  every  State  in  the  Union — the  Agricultural  College  has  ex-o^icio  rep- 
resentation on  the  Board  of  Agriculture  and  the  Board  of  Agriculture  elects  its  own 
oflBcers. 

An  experience  of  more  than  twenty  years  in  many  States  has  approved  such  an 
arrangement.  Your  committee  proposes  to  extend  the  principle  and  give  the  Board 
of  Agriculture  reciprocal  ex-officio  representation  on  the  Board  of  Visitors,  the  gov- 
erning board  of  the  college. 

Gentlemen  cannot  claim  that  any  advantage  is  given  in  this  provision  by  your 
committee  to  the  Board  of  Visitors  of  the  college  as  against  the  Board  of  Agricul- 
ture, for  the  last  named  board  consists  of  ten  members,  to  whom  are  added  two  ex- 
officio  members  from  the  college  authorities,  while  the  Board  of  Visitors  of  the  college 
consists  of  eight  members,  to  whom  are  added  two  members  representing  the  Board 
of  Agriculture.  If  there  is  any  advantage  given,  it  is  in  the  proportionate  weight  of 
the  members  on  the  Board  of  Agriculture  on  the  Board  of  Visitors  of  the  college 
rather  than  to  the  representatives  of  the  college  in  the  Board  of  Agriculture,  the 
Board  of  Agriculture  having  one-fifth  membership  of  the  board  of  the  college,  and 
the  latter  having  only  one-sixth  of  the  membership  of  the  Board  of  Agricultnre.  This 
oflBcial  reciprocal  representation  between  the  two  great  vital  forces  at  work  to  pre- 
serve and  advance  the  interests  of  Virginia  agriculture  will  do  more  than  any  one 
thing  possible  to  unite  their  efforts  and  allow  each  board  to  bend  its  energies  to 
the  accomplishment  of  the  results  each  can  severally  best  attain.  It  will  produce  the 
greatest  economy  possible  and  will  conserve  the  energies  of  each  where  the  work  of 
one  touches  and  interlaps  the  other,  one  can  aid  the  other  intelligently,  feeling  tlfat 
in  a  sense  it  is  thereby  accomplishing  his  own  work  the  better.  Where  the  work  is 
divergent,  each  can  aid  the  other  by  friendly  sympathy  and  suggestion.  There  will 
be  no  danger  of  either  going  over  the  same  ground  passed  over  by  the  other,  at  great 
cost  to  the  tax-payers,  who  support  both  institutions. 

There  should  be  an  experiment  farm  in  the  peanut  and  trucking  section,  as  now 
in  the  tobacco  section,  and  another  possibly  in  the  northern  or  valley  section  of  the 
State. 

The  Board  of  Agriculture  may  find  it  advisable,  and  certainly  economical,  to 
take  advantage  of  facilities  at  the  college  for  the  scientific  determination  of  results 
obtained  from  the  experiments  on  said  farms,  without  which  accurate  determination 
all  efCort  and  expenditure  in  this  line  of  work  is  worse  than  useless.  To  do  this  ex- 
tensively will  require  an  extensive  corps  of  experts  and  assistants. 

Why  place  ttis  charge  upon  the  tax-payers  of  the  State  when  the  facilities  are 
already  provided  at  the  Polytechnic  Institute,  and  largely  at  United  States  Govern- 
ment expense? 

Why  adopt  a  course  that  may  demand  a  double  list  of  experts  in  horticulture, 
veterinary  science,  etc.,  to  be  provided  and  maintained  at  great  cost,  when  the  Board 
of  Control  of  the  Experiment  Station — the  executive  committee  of  the  Board  of  Visi- 
tors— is  already,  by  law,  created  a  Board  of  Crop  Pest  Commisioners,  and  its  horti- 
culturists are  State  oflBcers  empowered  to  investigate  and  protect  the  fruit  inter- 
ests and  to  eradicate  disease  from  the  orchards  of  the  State? 

Few  know  the  great  work  already  done  along  this  line,  done,  too,  at  comparatively 
small  cost  to  the  tax-payers — only  the  traveling  expenses  of  the  experts  and  a  small 
salary  to  assistants.  All  the  expert  work  Is  paid  for  by  the  United  States  appropria- 
tion. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA.  2061 


The  same  Board  of  Control  is,  by  law.  created  a  Quarantine  Board,  with  power 
to  deal  vritii  diseases  of  domestic  animals.  Its  veierinarians  are  State  officers,  and 
the  same  quality  of  vrork  done  by  the  crop  pest  workers  is  best  done  in  the  matter 
of  protecting  the  cattle  interests  of  the  State  from  infection. 

The  Federal  Government  threatened  to  place  the  whole  State  south  of  the  quar- 
antine line  ten  years  ago,  and  would  have  done  so  but  for  the  creation  of  this  Quar- 
antine Board  and  the  powers  Tested  in  it  by  the  General  Assembly,  a  fact  not  known, 
perhaps,  to  many  present. 

Incidentally,  I  may  say  to  gentlemen  interested  in  the  matter  of  quarantine  af- 
fecting certain  counties  north  of  the  James,  from  Nelson  to  Henrico,  that  I  am  glad 
to  say  that  the  board  has  had  assurances  of  co-operation  from  the  authorities  in  the 
several  counties  a^ected,  and  the  matter  will  be  taken  up  at  once  with  the  Federal 
authorities,  and  the  counties  released  from  Federal  quarantine  immediately,  it  is 
confidently  expected.    I  shall  take  pleasure  in  giving  any  gentleman  full  particulars. 

I  have  gone  more  fully,  perhaps,  than  necessary  into  these  phases  of  college  work, 
touching  the  agricultural  interests  of  the  State,  but  there  are  others  that  could  be  as 
easily  elaborated.  I  mention  these  matters  to  show  how  the  work  of  a  Board  of 
Agriculture  and  of  the  Agricultural  College  must  touch  or  interlap,  and  to  empha- 
size the  importance  of  harmonious  and  cordial  relations.  Referring  to  scientific  de- 
terminations of  the  result  of  experiments  conducted  on  State  farms,  I  have  stated 
that  the  whole  success  of  the  experiment  is  dependent  on  such  determination.  In 
like  case  must  the  value  of  the  experiments  to  the  people  at  large  be  governed  by  the 
ability  to  disseminate  the  information  gained. 

The  college  issues  many  thousands  of  bulletins  monthly  of  its  own  work,  and 
has  a  United  States  Government  frank.  If  the  Board  of  Agriculture  was  working  in 
close  touch  with  the  college,  the  college  would  be  able  to  use  this  frank  for  the  results 
obtained  jointly  for  the  college  and  board,  and  to  save  thousands  of  dollars  in  the 
matter  of  postage  alone. 

I  need  not  further  trespass  upon  your  time  with  such  enumeration;  but  it  can 
be  shown  that  a  Board  of  Agriculture  and  the  Board  of  the  College,  working  together 
harmoniously  and  cordially,  though  being  entirely  distinct  and  independent  of  each 
other,  can  yet  accomplish  a  threefold  greater  work,  at  the  same  or  less  cost  to  the  tax- 
payers, than  the  same  boards  at  odds. 

Your  committee  has  provided  for  this  community  of  interest  by  providing  the 
reciprocal  ex-oificio  representation. 

It  also  provides  that  the  General  Assembly  may  add  other  ex-officio  members 
to  the  Board  of  Agriculture — a  very  proper  provision. 

TVifh  a  revivification  of  the  hopes,  and  a  consummation  of  the  efforts,  of  those 
vvorking  for  the  advancement  of  agricultural  interests  there  may,  and  doubtless  will, 
be  a  rejuvenated  State  Agricultural  Society,  whose  president  might  be  so  honored, 
as  well  as  others,  perhaps.  There  will  arise,  no  doubt,  an  association  for  advanc- 
ing the  peanut  and  trucking  interests  of  the  State,  especially  in  the  Tidewater  sec- 
tion, and  already  we  have  a  State  Horticultural  Society  which  is  particularly  inter- 
ested in  advancing  the  fruit  interests  of  the  Commonwealth.  This  provision  would 
allow  the  General  Assembly  to  add  to  the  board  special  accredited  representatives  of 
such  associations,  in  the  persons  of  the  president  or  other  officer. 

I  have  sought  to  support,  in  a  desultory  way,  the  principles  upon  whose  adop- 
tion depends,  in  my  humble  judgment,  the  success,  m  largest  measure,  of  the  great 
movement  now  possible,  for  the  advancement  of  all  the  agricultural  interests  of  the 
State. 

I  have  tried  to  show  some  matters — there  are  many  others — in  which,  under  the 
report  of  this  committee,  the  Board  of  Agriculture  and  the  Board  of  Visitors  of  the 
Virginia  Polytechnic  Institute  can  co-operate,  to  the  great  benefit  of  the  agricultural 


2063  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

interests  in  the  State,  and  with  saving  to  tax-payers,  and  how  the  report,  at  the 
same  time,  in  terms,  insures  the  preservation  of  the  two  institutions  separate  and 
distinct. 

I  desire  again  to  repeat,  as  emphatically  as  possible,  that  there  is  no  desire 
whatever — nor  has  there  ever  been  any  such  wish — on  the  part  of  the  authorities  and 
friends  of  the  Virginia  Polytechnic  Institute  at  Blacksburg  to  in  any  way  prejudice 
the  work  of  the  Board  of  Agriculture  or  take  any  part  of  its  functions  to  Blacksburg. 
But  it  is  the  earnest  desire  of  them  all  to  support  a  provision  that  will  draw  the  two 
boards  into  the  most  harmonious  and  cordial  relations  possible.  The  mutual  helpful- 
ness, of  such  a  plan  cannot  be  denied. 

The  principles  involved  are  a  control  by  the  Board  of  Agriculture  of  its  own 
officers,  with  the  power  given  thereby  to  meet  its  responsi^bilities,  to  the  satisfaction 
of  its  members,  and  with  the  approval  of  the  people — a  reciprocal  official  representa- 
tion on  the  Board  of  Agriculture  and  the  Board  of  Visitors  of  the  Virginia  Polytechnic 
Institute  by  representatives  of  each  institute,  respectively. 

Adopt  these  principles  as  embodied  in  the  report  of  your  committee,  and  I  shall 
feel  confident  you  will  have  done  more  to  advance  the  true  interests  of  agriculture  in 
all  its  branches  than  is  possible  in  any  other  way. 

I  hope  gentlemen  will  think  carefully  before  they  accept  an  idea  that  there  is 
in  this  proposal  of  your  committee  any  idea  to  prejudice  the  Board  of  Agriculture  in 
favor  of  Blacksburg.  I  am  sincere  in  the  statement,  and  I  am  borne  out  by  all  ex- 
perience in  the  past,  that  this  college  has  never  undertaken  to  tak-e  the  Board  of 
Agriculture  to  Blacksburg,  and  does  not  propose  to  do  so  now,  but  that  it  believes 
there  are  agencies  that  should  be  working  together  in  the  State  to  uplift  and  upbuild 
the  agricultural  interests  of  the  State,  and  to  do  so  along  progressive  and  healthful 
lines. 

It  seems  to  me  you  have  provided  in  the  report  of  your  committee  the  most 
powerful  incentive  to  accomplish  this  in  the  most  feasible  manner.  You  are  following 
lines  that  have  been  adopted  in  nearly  every  State  of  the  Union  which  has  agricultural 
colleges  and  agricultural  boards.  The  tendency  in  the  State  is  to  keep  them  inde- 
pendent in  their  departments,  but  to  draw  them  closer  together  in  their  work  for  the 
interests  of  agriculture.  Colleges  are  heavily  endowed  by  the  United  States  Govern- 
ment in  every  State  of  the  Union,  and  the  endowments  are  given  for  the  purpose  of 
employing  experts,  and  are  in  just  measure  restricted  to  such  uses  in  nearly  every 
instance.  In  fact,  the  law  making  these  appropriations  defines  absolutely  how  they 
must  be  used. 

It  does  seem  to  me  that  when  we  have  an  opportunity  to  draw  all  these  forces 
together  for  the  advancement  of  the  agricultural  interests  we  should  not  do  anything 
that  will  further  force  tliem  apart,  but  should  do  what  the  Convention  best  may  do 
to  require  that  there  should  be  this  harmonious  and  cordial  relation  which  I  have 
pointed  out  as  desirable,  to  the  end  that  the  people  of  Virginia  may  be  able  to  enjoy 
to  the  fullesf  extent  the  result  of  the  appropriation  made  by  the  Government  of  the 
United  States.  A  wide  field  of  usefulness  is  proposed  for  the  Board  of  Agriculture, 
and  I  am  glad  to  see  that  the  people  of  the  United  States  realize  generally  its  value 
and  grasp  its  opportunities.  There  is  a  wide  field  for  college  work,  and  I  am  glad  to 
see  the  people  endorse  the  work  being  done  in  the  colleges;  but  it  is  in  the  power  of 
the  Convention  to  draw  these  two  agencies  together  in  Virginia,  to  unite  them  into 
one  effort,  so  that  they  will  be,  though  separate  and  independent,  still  working 
together  along  lines  where  they  overlap.  They  will  be  working  separately  where  their 
Interests  are  divergent,  but  always  working  in  the  common  interest,  with  the  full 
knowledge  of  the  demands  and  desires  of  the  people  who  need  their  help  and  for 
whose  assistance  they  are  established. 

Gentlemen,  I  thank  you  for  your  attention. 


DEBATES  OE  THE  COXSTITUTIOKAL  COXVEXTION  OE  VIRGINIA.  3063 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  gentleman 
from  Page  (Mr.  Parks). 

Mr.  Fairfax:  Mr.  Chairman,  I  respectfully  submit  the  following  amendment: 
Strike  out,  in  line  9,  the  words  "the  rector  of  the  Board  of  Visitors  and,"  which  would 
make  it  read:  "The  president  of  the  Virginia  Polytechnic  Institute,"  and  in  the  same 
section  strike  out,  in  line  20,  the  v/ords  "and  the  Commissioner  of  Agriculture  and 
Immigration." 

Mr.  Keezell:  I  would  suggest  to  the  gentleman,  in  the  interest  of  harmony  in 
appointments,  that  the  rector  of  the  Board  of  Visitors  should  be  put  on  the  board. 

Mr.  Fairfax:    My  amendment  was  to  strike  out  the  commissioner. 

Mr.  Keezell:  It  seems  to  me  the  rector  of  the  Board  of  Visitors  of  the  Polytechnic 
Institute  would  correspond  more  to  the  president  of  the  Board  of  Agriculture  than 
would  the  chairman  of  the  faculty  there.  The  chairman  of  the  faculty  would  represent 
the  Commissioner  of  Agriculture  to  a  very  great  extent.  That  is  merely  my  sug- 
gestion. Of  course,  I  have  nothing  to  do  with  the  amendment  except  to  make  that 
suggestion. 

Mr.  Fairfax:  I  am  offering  it  with  a  view  of  meeting  objections  that  have  been 
made.  I  want  to  make  the  board  as  nearly  as  possible  a  perfected  board,  and  to  have 
it  please  the  farmers  and  those  interested  in  this  measure,  if,  possible.  I  think,  Mr. 
Chairman,  we  had  better  strike  out  the  commissioner. 

Mr.  Parks:  Mr.  Chairman,  I  withdraw  my  amendment,  and  will  let  the  vote  be 
taken  on  the  amendment  of  the  gentleman  from  Loudoun. 

Mr.  Hubbard:  Mr.  Chairman,  I  have  the  highest  regard  for  the  distinguished 
members  of  the  Committee  on  Agriculture,  and  it  is  with  great  reluctance  that  I  rise 
to  oppose  the  part  of  their  report  which  undertakes,  as  I  conceive,  to  change  in  a 
radical  manner  the  agricultural  system  of  Virginia  by  adding  the  rector  of  the  Board 
of  Visitors  and  the  president  of  the  Polytechnic  Institute  to  the  Board  of  Agriculture. 
I  have  before  me  on  my  desk  a  document  received  from  my  county  this  morning, 
which  assures  me  that  the  farmers  of  my  county  are  unanimously  opposed  to  this 
radical  change.  We  are  presumed  here  to  be  a  representative  body,  and  it  must  be 
conceded  that  the  agricultural  Interests  are  of  paramount  importance. 

I  say,  Mr.  Chairman,  this  change  Is  radical.  Why  do  I  say  that?  This  body 
yesterday  decided,  an^  properly  decided,  that  each  member  of  the  board  to  be  ap- 
pointed by  the  Governor  and  confirmed  by  the  Senate  should  be  a  practical  farmer. 
What  assurance  has  this  body,  or  can  it  have,  that  the  rector  of  the  Board  of  Visitors 
or  the  president  of  that  institute  shall  be  practical  farmers?  What  justice  can  there 
be  in  allowing  that  institution  to  have  twice  as  much  representation  as  any  con- 
gressional district  in  the  State?  The  farmers  of  the  various  congressional  districts 
are  allowed  but  one  representative,  and  yet  this  favored  institution,  which  has  no 
place  upon  this  board  at  all,  is  allowed,  if  the  amendment  of  the  gentleman  from 
Loudoun  (Mr.  Fairfax)  prevails,  to  still  have  one.  The  injustice  of  that  is  manifest. 
The  Impropriety  of  it  is  manifest,  because  in  either  event,  whether  it  has  one  or  two, 
this  body,  which  saw  the  wisdom  and  the  propriety  yesterday  of  deciding  that  the 
other  members  of  this  board  should  be  practical  farmers,  allowed  In  the  one  case 
one  and  in  the  other  case  two  members  of  that  institution  to  be  placed  on  this  board, 
which  in  the  one  case  would  give  equal  representation  to  each  congressional  district 
and  in  the  other  twice  as  much  representation,  without  any  assurance  whatever  that 
either  of  them  would  be  practical  farmers. 

Now.  Mr.  President,  I  think  this  change  ought  not  to  be  made,  because  this  Is  a 
purely  agricultural  matter.  The  present  agricultural  system  has  proved  a  success, 
and  experiments  are  dangerous.  I  think  we  ought  to  heed  the  words  of  warning  that 
come  from  the  farmers,  as  appear  in  this  document  upon  my  desk,  which  assures  me 
my  constituency  are  unanimously  against  this  change.    They  want  us  to  let  well 


2064  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

enough  alone.  Therefore,  I  heg  the  members  of  the  committee  to  pause  long  and 
seriously  before  you  make  a  change  which  will,  in  any  event,  If  only  one  is  added, 
give  one  vote  to  an  institution  through  the  voice  of  a  man  who  may  not  be  a  practical 
farmer  against  the  ten  votes  of  the  practical  farmers  selected  by  the  Governor,  as 
provided  in  this  Constitution,  in  the  various  congressional  districts  upon  that  board. 

I  hope  it  will  be  the  pleasure  of  the  body  to  heed  this  warning  from  the  farmers, 
and  to  respect  their  wishes.  In  view  of  the  fact  that  the  system  is  now  a  success,  I 
hope  you  will  vote  down  this  clause  in  the  report  which  puts  these  new  gentlemen 
upon  the  board,  and  that  you  will  not  allow  the  General  Assembly  the  dangerous  power 
to  add  any  other  men  they  may  see  proper  upon  this  board. 

Mr.  Stuart:  Mr.  Chairman,  I  desire  to  say  that  the  amendment  proposed  by  the 
gentleman  from  Loudoun  (Mr.  Fairfax)  is  acceptable  to  the  committee,  so  far  as  I 
have  been  able  to  see  the  members,  and  so  far  as  I  have  any  knowledge  of  their  wishes 
on  the  subject.  It  simply  gives  recognition  to  the  views  expressed  by  some  gentlemen 
who  are  very  much  interested  in  this  question,  that  it  might  be  giving  undue  authority 
or  undue  weight  and  influence  to  one  particular  section  of  the  State;  and  in  order  to 
give  evidence  of  our  desire  to  avoid  any  such  condition  as  that,  the  committee,  so 
far  as  I  am  able  to  represent  them,  will  be  very  glad  to  accept  that  amendment. 

As  to  who  shall  constitute  the  member  from  the  Agricultural  Board,  it  seems  to 
me  to  be  immaterial.  So  far  as  I  am  concerned,  I  shall  have  no  objection  to  having 
the  commissioner  instead  of  the  president.  I  leave  that  matter,  however,  in  the  hands 
of  the  mover  of  the  resolution. 

The  Chairman:  The  question  is  on  agreeing  to  the  adoption  of  the  amendment 
proposed  by  the  gentleman  from  Loudoun  (Mr.  Fairfax). 

The  amendment  was  agreed  to. 

Mr.  Parks:  I  offer  the  following  amendment,  to  come  in  at  line  14.  It  reads  now 
as  follows:  "The  powers  and  duties  of  the  same  board  shall  be  such  as  may  be  pre- 
scribed by  law:  provided,  it  shall  maintain  its  principal  oflQce  at  the  Capital  of  the 
State."  I  move  to  insert  the  following  words  in  lieu  of  those  I  have  just  read:  "The 
powers  and  duties  of  the  said  board  and  of  the  Commissioner  of  Agriculture  and 
Immigration  shall  be  such  as  may  be  prescribed  by  law:  provided,  the  principal  office 
of  the  commissioner  and  of  such  board  shall  be  permanently  established  and  main- 
tained at  the  Capital  of  the  State."  I  do  not  move  to  strilie  out  the  balance  of  that 
paragraph. 

Mr.  Mcllwaine:  I  move  as  an  amendment,  sir,  that  instead  of  tlie  words  "prin- 
cipal office  shall  be  permanently  established  and  maintained  at  the  Capital  of  the 
State"  to  strike  out  the  words  "principal  office"  and  substitute  the  words  "the  Depart- 
ment of  Agriculture." 

Mr.  Parks:    I  accept  the  amendment 

The  Chairman:  The  gentleman  from  Prince  Edward  (Mr.  Mcllwaine)  moves 
an  amendment  to  the  amendment,  which  has  been  accepted  by  the  gentleman  from 
Page  (Mr.  Parks). 

Mr.  Stuart:  Mr.  Chairman,  the  amendment  proposed  by  the  gentleman  from 
Page  (Mr.  Parks)  is  one  which,  on  its  surface,  seems  to  be  very  little  at  variance 
with  the  views  of  the  committee  as  expressed  in  the  report.  It  is  the  intention  of  the 
report,  as  I  understand  it,  to  do  something  which  has  never  been  done  before,  either 
by  Constitution  or  by  statute  in  Virginia.  That  is,  to  provide  that  there  shall  be  a 
Board  of  Agriculture.  There  has  been  no  division  of  sentiment  whatever,  so  far  as 
I  have  been  able  to  hear,  as  to  the  importance  of  inserting  the  word  "shall"  instead 
of  the  word  "may."  The  committee,  recognizing  the  importance  of  this  board,  have 
used  the  word  "shall."  That  gives  perpetuity  to  the  department.  As  at  present,  the 
General  Assembly  has  power  to  wipe  it  off  the  statute  books  entirely;  it  has  power  to 
move  it  anywhere  it  may  choose,  and,  as  the  gentleman  from  Page  said,  it  had  seriously 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGT^'IA.  2065 

under  consideration  two  years  ago,  or  at  least  had  representatives  before  it,  seri- 
ously proposing  that  it  should  be  abolished  altogether,  or  if  not  abolished,  to  move  it 
to  some  other  point  which  would  be  equivalent  to  abolishing  it. 

Now  it  is  to  take  this  department  out  of  this  uncertain  state,  this  precarious 
existence,  that  this  committee  has  introduced  this  feature  of  the  report.  It  seems  to 
me  that  when  we  provide  that  this  Department  of-  Agriculture  shall  exist,  and  that 
its  duties  and  powders  shall  be  prescribed  by  law,  that  is  about  as  little  as  we  could 
safely  leave  to  the  General  Assembly.  I  do  not  see  how  w^e  could  leave  them  anything 
if  we  do  not  leave  them  that  much.  We  have  felt  that  if  the  General  Assembly  shall 
prescribe  the  duties  of  the  Board  of  Agriculture,  and  the  Board  of  Agriculture  shall 
elect  its  commissioner,  in  effect  it  would  deprive  the  board  to  some  extent  of  proper 
administrative  capacity  to  have  one  set  of  duties  prescribed  to  the  board  and  another 
set  to  the  commissioner,  which  might  in  some  cases  produce  the  very  condition  we 
are  now  trying  to  cure.  When  the  duties  of  that  board  are  prescribed  by  law,  the 
powers  of  the  board  and  the  limitations  of  the  powers  are  clearly  set  out  not  only  in 
dealing  with  the  commissioner,  but  in  dealing  with  every  other  subject  that  may  come 
before  it.  Now,  if  the  General  Assembly  shall  undertake  to  define  the  powers  of  the 
board  and  the  powers  of  the  commissioner,  it  may  define  one  set  of  powers  for  the 
department  and  one  set  for  the  commissioner,  which  would  be  entirely  in  conflict 
with  each  other,  or  might  lead  to  conflict.  It  is  to  announce  the  principle  that  the 
executive  officer  shall  be  elected  by  the  board  and  shall  be,  as  all  other  executive  offi- 
cers are,  dependent  upon  the  power  of  that  board  that  this  report  is  drawn.  It  is  to 
leave  that  question  in  no  uncertainty. 

Now,  if  the  committee  thinks  it  unwise  to  modify  or  qualify  the  powers  of  the 
Board  of  Agriculture  in  dealing  with  the  commissioner,  it  would  be  proper,  perhaps, 
to  adapt  the  suggestion  of  the  gentleman  from  Page,  but  I  have  never  seen  any  good 
result  from  extending  power  to  a  board  with  a  string  to  it.  If  we  intend  this  board  to 
exercise  discretion  and  power,  and  we  have  already  provided  that  they  shall  be  prac- 
tical farmers,  why  attach  this  qualification  and  condition?  It  does  seem  to  me  their 
powers  and  duties  could  be  defined,  and  that  is  sufficient. 

Now,  as  to  the  location  of  the  board,  some  people  seem  to  think  that  the  report 
is  drawn  for  the  express  purpose  of  enabling  this  department  to  be  moved  from 
Richmond,  whereas  there  is  ample  authority  now  to  move  it  if  it  were  desired:  and 
this  committee  has  written  the  first  line,  so  far  as  I  know,  in  the  Constitution  or  on 
our  statute  books  which  tends  in  any  way  to  curb  the  discretion  of  the  General  Assem- 
bly in  that  particular.  I  have  said  I  thought  it  ought  to  be  entirely  discretionary  with 
the  General  Assembly  as  to  where  this  department  should  be  located,  or  as  to  where 
the  headquarters  of  the  Board  of  Agriculture  should  be  located.  I  called  attention 
yesterday  to  the  fact  that  the  strong  and  cogent  reasons  were  given  for  requiring 
the  penitentiary  to  remain  at  the  Capital  of  the  State  were  not  considered  favorably 
by  this  committee  or  by  the  Convention,  but,  upon  the  contrary,  the  General  Assembly 
was  left  free  to  deal  with  that  question  as  they  might  deem  proper.  Now,  if  the 
General  Assembly  fails  to  see  any  reason  for  keeping  the  penitentiary  here — and  the 
reasons  for  that  are  very  much  greater  than  for  keeping  this  department  here,  although 
personally  I  am  in  favor  of  keeping  it  here,  and  see  no  reason  why  it  should  ever  be 
removed — if  it  was  deemed  improper  to  qualify  the  control  of  the  General  Assembly 
In  this  regard  in  dealing  with  the  penitentiary,  how  much  more  improper  it  is  in 
this  case. 

Now,  it  says  the  principal  office  shall  be  here.  It  is  desirable  that  there  shall  be 
branches.  There  may  be  State  experimental  stations,  supplemented  by  Federal  aid. 
There  may  be  many  varieties  of  cases  coming  before  the  General  Assembly,  or  before 
this  board,  of  a  nature  w^hich  it  would  not  be  well  to  prejudge.  I  think  the  report  of 
the  committee  in  this  regard  is  ample  for  the  purpose.     It  is  absolutely  impossible 


2066  DEBATES  OF  THE  COXSTITUTIOIsTAL  CONVENTIOlSr  OP  VIRGI^TIA. 

to  move  tlie  department  from  here,  in  any  proper  or  essential  sense  under  this  lan- 
guage. I  cannot,  therefore,  see  any  good  to  be  accomplished  by  this  amendment.  It  is 
urged  that  there  are  animosities  between  the  Board  of  Agriculture  and  the  Polytechnic 
Institute  which  may  result  in  a  movement  to  get  the  department  away  from  here.  It 
Is  a  recognition  of  the  fact  that  there  are  such  animosfties  which  brought  the  com- 
mittee to  the  very  conclusion  stated  in  this  report.  It  is  to  cure  these  animosities,  to 
make  it  impossible  for  those  animosities  to  exist,  and  to  unite  them  in  a  common 
interest  and  put  them  in  a  boat  together,  to  sink  or  swim,  so  that  they  will  have  a 
common  purpose  in  protecting  their  joint  interests  instead  of  fighting  each  other.  If 
this  is  not  in  the  interest  of  peace  between  the  two  institutions,  I  am  unable  to  dis- 
cover any  measure  that  could  be  presented  for  that  purpose. 

It  is  said  there  are  some  individual  members  of  the  Blacksburg  board  who  would 
like  to  see  this  department  transferred  there.  If  any  man  should  think  that,  he  would 
certainly  be  opposed  to  this  report,  for  this  is  the  only  thing  ever  written,  as  far  as  I 
am  aware,  which  absolutely  and  forever  prohibits  it. 

The  agricultural  board  is  here  required  to  be  a  permanency  and  its  entity  cannot 
be  destroyed  by  any  legislative  act;  hence  It  can  never  be  lodged  with  Blacksburg. 
It  is  the  only  provision  ever  proposed  which  has  for  its  express  object  the  prevention 
of  that  very  result. 

Now,  Mr.  Chairman,  I  do  not  wish  to  be  understood  as  antagonizing  the  interests 
of  the  city  of  Richmond  in  this  matter,  v/hich  are,  to  some  extent,  as  we  all  know, 
local,  and  very  properly  so,  but  I  do  not  see  why  this  Convention  or  this  committee 
should  require  a  department  of  this  kind  to  be  located  forever  at  the  State  Capitol 
when  it  refused  to  do  so  in  the  case  of  the  penitentiary. 

Mr.  Parks:  Mr.  Chairman,  in  the  first  place,  I  wish  to  be  distinctly  understood 
as  not  intimating  that  the  Board  of  Visitors  at  Blacksburg,  or  any  officers  at  Blacks- 
burg Institute,  or  any  member  of  this  committee,  has  contemplated  for  a  moment  the 
removal  of  the  office  of  the  board  from  the  city  of  Richmond.  Neither  have  I  offerS'd 
this  amendment  because  of  any  predilection  that  I  have  for  the  city  of  Richmond  in 
that  particular.  I  have  offered  it,  sir,  for  the  purpose  of  settling  the  matter.  This 
report  says  that  the  principal  office  of  the  Board  of  Agriculture  shall  be  at  Richmond. 
The  board  can  have  its  office  here  and  meet  here.  They  can  let  out  contracts  for  the 
fertilizer  bags  here,  and  they  can  remove  the  Commissioner  of  Agriculture,  the 
museum,  and  the  branches  to  Blacksburg,  or  wherever  they  please  under  this  report. 
I  want  the  Department  of  Agriculture  kept  at  the  Capitol  of  the  State,  so  that  the 
people  can  have  access  to  it,  and  close  to  where  all  the  other  departments  of  the  State 
are.  If  it  is  to  be  a  department,  then  let  it  be  a  department  of  the  State,  co-equal 
with  other  departments  of  the  State,  recognized  as  such  by  having  its  habitat  at  the 
Capital  of  the  State. 

Mr.  Eggleston:  Mr.  Chairman,  I  desire  to  call  the  attention  of  the  gentleman  from 
Prince  Edward  (Mr.  Mcllwaine)  to  the  fact  that  this  department  is  called  the  Depart- 
ment of  Agriculture  and  Immigration.  I  suppose  he  contemplates  retaining  the  whole 
department  at  Richmond. 

And  that  the  word  "Immigration"  should  be  inserted  in  the  title  of  the  depart- 
ment? 

Mr.  Mcllwaine:    Yes.  sir. 

The  Chairman:    That  will  be  done  if  there  is  no  objection. 

Mr.  Keezell:  Would  the  scope  of  your  amendment  prevent  them  from  having 
branches? 

Mr.  Parks:  The  chairman  of  the  committee  just  came  to  me  and  asked  me  about 
that,  and  I  said  I  had  no  objection  to  inserting  in  the  amendment  the  words  "with- 
such  branches  as  might  be  established."    I  have  no  objection  to  that. 

Mr.  Brown:    Mr.  Chairman,  before  this  amendment  is  voted  on,  I  desire  10  ask 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA.  2067 

the  chairman  of  the  committee  if  the  committee  will  accept  the  following  amendment: 
In  lines  15  and  16  strike  out  the  words,  "its  principal  office,"  and  substitute  the  wordS;. 
"the  Department  of  Agriculture  gnd  Immigration,"  so  that  the  paragraph  would  read: 
"The  powers  and  duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by  law: 
provided,  it  shall  maintain  the  Department  of  Agriculture  and  Immigration  at  the 
Capital  of  the  State,  and  shall,"  etc. 

Mr.  Parks:    It  is  the  same  thing  in  other  words. 

Mr.  Stuart:  That  leaves  the  report  in  better  shape,  though,  in  vtew  of  the  way 
in  which  it  is  presented,  it  mutilates  the  report  much  less  than  the  proposition  of 
the  gentleman  from  Page  (Mr.  Parks),  and  accomplishes  the  same  results,  as  I  un- 
derstand it. 

Mr.  Portlock:  I  offer  the  following  amendment,  which  is  drawn  to  meet  the 
point.  I  think  the  language  will  cover  it.  It  is  offered  as  an  addition  to  the  amend- 
ment of  the  gentleman  from  Page  (Mr.  Parks). 

The  Secretary  read  as  follows: 

Add  after  the  word  "State,"  in  line  16,  the  words  "with  such  branch  ofaces  as 
may  be  located  elsewhere,  as  may  be  prescribed  by  law." 

Mr.  Parks:  I  have  no  objection  to  that  if  it  is  acceptable  to  the  chairman  of  the 
committee. 

Mr.  Stuart:  That  is  acceptable,  sir,  up  to  that  point. 

Mr.  Eggleston:  I  desire  to  ask  the  chairman  of  the  committee  if  he  thinks  it 
should  be  'T)ranch  offices"  or  "branches."  As  I  understand,  the  Department  of  Api- 
culture is  established  in  these  test  farms  in  different  parts  of  the  State.  It  seems 
to  be  apprehended  that  that  would  break  up  the  arrangement  unless  they  were  at 
Richmond.  Ought  it  not  be  "branches"  instead  of  "branch  offices''?  You  could  not 
say  a  test  farm  is  a  branch  office,  and  it  would  be  a  branch  of  the  department. 

Mr.  Stuart:  I  must  confess,  Mr.  Chairman,  there  is  a  great  deal  in  what  the  gen- 
tleman from  Charlotte  (Mr.  Eggleston)  has  just  said.  The  fact  is  these  propositions 
are  being  sprung  upon  the  committee  so  rapidly  as  not  to  give  us  time  for  mature 
consideration  of  the  exact  importance  of  them.  I  think  vrhatever  branches  may  be 
established  should  be  branches  of  the  department  itself,  and  that  they  should  have 
such  powers  as  the  department  is  capable  of  conferring  on  them. 

Mr.  Wise:  Mr.  Chairman,  I  would  like,  to  say  to  the  chairman  of  the  committee 
that  it  seems  to  me  the  amendment  is  not  necessary  at  all.  Under  the  amendment 
offered  by  the  gentleman  from  Page  (Mr.  Parks)  you  could  have  these  branch  farms 
all  over  the  State.  There  Is  nothing  in  his  amendment  which  forbids  if.  It  simply 
provides  that  the  Department  of  Agriculture  shall  be  permanently  located  in  Rich- 
mond, and  that  amendment,  in  my  opinion,  w^ill  simply  mystify,  and  not  clear. 

Mr.  Stuart:  I  must  insist  on  that  language,  Mr.  Chairman,  because  of  the  fact 
that  I  feel  it  is  necessary  to  the  full  import  of  the  whole  article.  I  beg  to  differ  with 
the  gentleman  from  Richmond  (Mr.  Wise)  as  to  the  fact  that  the  amendment  is 
superfluous. 

Mr.  James  W.  Gordon:  I  offer  the  following  as  a  substitute  for  that  vrhole  para- 
gTaph:  "The  said  board  shall  elect  for  a  term  of  four  years  a  commissioner  of  agricul- 
ture and  immigration,  and  shall  also  elect  its  officers.  The  powers  and  duties  of  said 
board  and  of  said  commissioner  shall  be  such  as  may  be  prescribed  by  law;  provided, 
that  the  Department  of  Agriculture  and  Immigi-ation  shall  be  located  at  the  captial  of 
the  State,  with  such  branch  offices  and  experimental  stations,  to  be  located  elsewhere, 
as  may  be  prescribed  by  law."    That  will  cover  the  experimental  stations. 

The  said  board  shall  elect  for  a  term  of  four  years  a  Commissioner  of  Agriculture- 


.2068  DEBATES  OE  THE  c'OXSTITUTIOJnTAL  CONVENTION  OE  VIRGINIA. 

and  Immigration,  and  shall  also  elect  its  officers.  The  powers  and  duties  of  said 
board  and  of  said  commissioners  shall  be  such  as  may  be  prescribed  oy  law:  provided, 
that  the  Department  of  Agriculture  and  Immigration  shall  be  located  at  the  Capital 
of  the  State,  with  such  branch  office  and  experimental  stations,  to  be  located  elsewhere, 
as  may  be  prescribed  by  law. 

Mr,  Brown:  Mr.  Chairman,  it  does  seem  to  me  that  we  have  reached  the 
point  where  we  are  all  practically  seeking  the  same  object.  In  none  of  these  resolu- 
tions that  have  been  offered  amending  this  paragraph  or  proposing  a  substitute 
therefor  do  I  see  anything  except  the  report  of  the  committee  clothed  in  other  lan- 
guage. I  contend  that  the  report  of  the  committee,  with  the  amendment  I  have  sug- 
gested, and  possibly  with  the  addition  of  the  amendment  suggested  by  the  gentleman 
from  Norfolk  county  (Mr.  Portlock)  allowing  the  Board  of  Agriculture  to  maintain 
branch  establishments,  is  the  proper  language  to  use  in  this  report.  We  have  in  the 
report  the  provision  that  the  powers  and  duties  of  the  said  board  shall  be  such  as  may 
be  prescribed  by  law.  "We  have  an  amendment  offered  by  the  gentleman  from  Page 
(Mr.  Parks)  that  the  powers  and  duties  of  the  said  board  and  of  the  commissioner 
may  be  prescribed  by  law.  It  seems  to  me,  though  the  language  is  different,  the  intent 
and  purpose  is  the  same;  and  furthermore,  the  powers  and  duties  of  the  board,  unless 
prohibited  by  law,  are  more  carefully  guarded  in  the  language  of  the  report  than  is 
provided  for  in  the  language  offered  by  the  gentleman  from  Page. 

The  Board  of  Agriculture,  under  the  provisions  of  the  report  of  the  committee, 
only  has  such  pov/ers  and  duties  as  may  be  prescribed  by  law.  Those  powers  and 
duties  have  to  be  prescribed  by  the  Legislature.  When  that  provision  of  the  legisla- 
tive act  is  being  adopted,  the  special  provision  as  to  the  particular  duties  and  powers 
of  the  commissioner  can  very  easily  be  put  in  that  act  without  a  constitutional  pro- 
hil>ition  providing  that  the  commissioner  has  only  such  powers  as  may  be  prescribed 
by  law.  It  does  seem  to  me  that  the  wording  of  the  committee  is  the  correct  and 
proper  wording,  because  it  covers  the  whole  ground. 

Then,  to  proceed  with  the  proviso  which  follows,  it  seems  to  me  the  amendment 
which  I  have  offered  and  which  has  been  accepted  by  the  chairman  of  the  committee, 
so  that  the  section  will  read:  Provided,  it  shall  maintain  the  Department  of  Agricul- 
ture and  Immigration  at  the  Capital  of  the  State,"  meets  the  objection  that  has  been 
offered  by  the  gentleman  who  offered  other  amendments. 

It  seems  to  me  proper,  too,  if  there  is  any  possible  misconstruction  of  this  so  that 
the  State  Board  of  Agriculture  cannot  maintain  its  branch  farms  in  different  parts 
of  the  State  for  experimental  work,  it  would  be  wise  to  add  such  words  as  those 
suggested  by  the  gentleman  from  Norfolk  county  (Mr.  Portlock),  but  in  other  respects 
it  seems  to  me  the  language  used  by  the  committee  is  the  proper  language  and  covers 
the  whole  ground.  It  protects  the  Department  of  Agriculture  from  ever  being  re- 
moved from  Richmond.  It  guards  that  point  which  some  of  the  friends  of  the  De- 
partment of  Agriculture  seem  to  think  has  been  attacked.  It  provides  that  the  powers 
and  duties  of  the  whole  board,  including  its  powers  over  the  Commissioner  of  Agri- 
culture, shall  be  prescribed  by  law.  It  is  compact;  it  has  no  useless  prohibition,  but 
it  gives  to  the  board  only  such  powers  and  duties  as  may  be  prescribed  by  law;  and 
it  seems  to  me,  when  there  is  so  little  difference  of  opinion,  it  is  useless  to  mutilate 
the  carefully  worded  language  of  the  report  as  proposed  by  the  Committee  on 
Agriculture. 

The  Chairman:  The  question  is  first  upon  the  first  part  of  the  amendment  of 
the  gentleman  from  Page  (Mr.  Parks)  to  insert  the  words,  "and  the  Commissioner  of 
Agriculture,"  in  line  14. 

The  first  part  of  the  amendment  was  rejected,  there  being  on  a  division,  ayes, 
27;  noes,  30. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA.  206^> 

The  Chairman:  The  question  recurs  on  the  second  branch  of  the  amendment 
offered  by  the  gentleman  from  Page. 

Mr.  Stuart:  If  the  gentleman  from  Page  (Mr.  Parks)  will  permit  me,  I  desire 
to  offer  a  suggestion  that  will  perhaps  smooth  the  tangle  which  we  seem  to  be  in. 
I  submit  this  to  see  if  it  will  not  cover  the  point  proposed:  "The  powers  and  duties 
of  the  said  board  shall  be  such  as  may  be  provided  by  law:  provided,  that  the  De- 
partment of  Agriculture  and  Immigration  shall  be  maintained  permanently  at  the 
Capital  of  the  State,  with  power  to  establish  and  maintain  branches  of  said  depart- 
ment located  elsewhere." 

Mr.  Parks:  I  have  no  objection  In  the  world  to  that.  I  think  the  department  would 
have  power  to  do  it,  anyhow,  but  I  have  no  objection  to  putting  it  in  there.  So  far  as 
I  am  concerned,  I  accept  it. 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  chairman  of 
the  committee  and  accepted  by  the  gentleman  from  Page  in  lieu  of  the  amendment 
offered  by  him. 

The  amendment  was  agreed  to. 

Mr.  Hubbard:    I  offer  the  following  amendment: 

In  line  18,  after  the  word  "immigration,-"  insert  the  words,  "who  shall  be  a  practi- 
cal farmer."  The  sentence  would  then  read:  ''A  Commissioner  of  Agriculture  and 
Immigration,  who  shall  be  a  practical  farmer,  whose  term  of  office  shPAl  be  four  years." 

The  amendment  was  rejected,  there  being  on  a  division,  ayes,  5;  noes,  46. 
Mr.  Brown:  Mr.  Chairman,  I  desire  to  offer  a  further  amendment  to  this  section, 
which  may  meet  the  views  expressed  by  the  gentleman  from  Charlotte  (Mr.  Eggles- 
tion).  I  ask  the  chairman  of  the  committee  to  pay  attention  to  it,  so  that  he  may  de- 
cide whether  he  will  accept  it.  It  is  tto  strike  out,  in  line  18,  the  words,  "whose  term 
of  office  shall  be  four  years,"  and  insert  after  line  8  the  words,  "there  shall  be  a 
Commissioner  of  Agriculture,  whose  term  of  office  shall  be  four  years." 

I  think  this  meets  the  view  expressed  by  the  gentleman  from  Charlotte,  and  de- 
fines in  the  Constitution  that  there  shall  be  a  Board  of  Agriculture,  and  that  there 
shall  be  a  commissioner,  whose  term  of  office  shall  be  four  years.  It  simply  strikes 
out  in  the  latter  part  of  the  section  the  reference  to  the  term  of  office,  and  leaves  the 
rest  of  the  section  exactly  as  it  has  been  reported. 

Mr.  Eggleston:  I  desire  to  call  the  gentleman's  attention  to  another  fact,  that 
whereas  this  report  created  a  Board  of  Agriculture,  it  does  not  create  a  bureau  or 
department.  It  creates  the  board,  but  it  does  not  create  the  department.  Now,  I 
would  suggest — and  I  know  these  gentlemen  have  given  it  a  great  deal  of  consid- 
eration— in  lieu  of  this  first  paragraph,  the  following:  "There  shall  be  a  Bureau  of 
Agriculture  and  Immigration,  under  the  control  of  a  board  composed  of  one  member 
from  each  congressional  district,  who  shall  be  practical  farmers,  and  the  Commis- 
sioner of  Agriculture  and  Immigration.  Their  terms  of  office  shall  be  four  years, 
except  that  the  members  of  the  board  first  appointed  from  the  odd-numbered  con- 
gressional districts  shall  hold  office  for  two  years.  This  board  shall  be  appointed  by 
the  Governor,  by  and  with  the  advice  of  the  Senate." 

The  object  of  the  change,  Mr.  Chairman,  would  be,  instead  of  creating  the  board, 
to  create  the  department  and  put  it  under  the  control  of  the  board.  It  seems  to  me 
that  is  the  proper  way  to  do  it.  if  it  is  agreeable  to  the  committee.  I  do  not  under- 
take to  change  any  of  the  purport  of  their  report  at  all,  except  to  create  the  depart- 
ment Instead  of  creating  the  board. 

Mr.  Brown:  I  desire  to  ask  the  gentleman  if  this  will  meet  his  views — of  course, 
I  am  Interested  In  the  matter:  "There  shall  be  a  Bureau  of  Agriculture  and  Im- 
migration, which  shall  be  under  the  charge  of  a  Board  of  Agriculture";  and  then  go 


^070  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

on  with  the  wording  as  it  is  here.  It  seems  to  me  that  would  practically  meet  his 
view,  and  make  the  matter  very  much  more  concise. 

Mr.  Eggleston:  That  will  meet  my  view  exactly,  sir — "There  shall  be  a  De- 
partment or  Bureau  of  Agriculture  and  Immigra?tion,  undei^  the  control  of  the 
Board  

Mr.  Brown:  I  will  read  this  as  I  have  drawn  it,  and  then  send  it  to  the  desk: 
"There  shall  be  a  Bureau  of  Agriculture  and  Immigration,  which  shall  be  under  the 
control  of  a  Board  of  Agriculture  and  Immigration,"  and  then  follow  the  wording  of 
the  report. 

The  amendment  was  agreed  to. 

Mr.  Hancock:  I  move  to  strike  out,  in  line  13,  the  words  "ex-officio."  As  I  said 
a  while  ago,  the  Committee  of  the  Whole  has  determined  that  only  one  member  of 
the  faculty  of  the  Polytechnic  Institute  shall  be  a  member  of  this  board  ex-officio. 
I  suppose  the  committee  by  this  action  intended  to  decide  that  there  shall  be  no  other 
ex-officio  member  of  this  board.  But  this  section  reads:  "The  General  Assembly  may, 
in  its  discretion,  add  other  members  ex-officio  to  the  said  board." 

It  seems  to  me  the  General  Assembly  should  not  be  limited  to  the  appointment 
of  ex-officio  members  of  the  board.  If  the  General  Assembly  should  be  of  the  opinion 
that  other  members,  practical  farmers,  should  be  placed  upon  the  board,  and  should 
deem  it  wise  to  have  two  or  more  members  from  each  congressional  district,  I  see  no 
reason  why  its  power  should  be  limited.    I  hope  these  words  will  be  stricken  out. 

Mr.  Lindsay:    I  move  as  a  substitute  that  lines  12  and  13  be  stricken  out. 

Mr.  Stuart:  So  far  as  I  am  concerned,  I  am  willing  to  accept  the  amendment 
proposed  by  the  gentleman  from  Chesterfield  (Mr.  Hancock).  I  see  it  leaves  the 
scope  of  the  Legislature  a  little  wider  than  I  thought  wise,  but  still,  as  it  is  insisted 
they  should  have  absolute  discretion  in  adding  members..  I  have  no  objection. 

The  amendment  was  agreed  to. 

Mr.  Lindsay:  I  renew  my  amendment  to  strike  out  lines  12  and  13.  It  seems  to 
me  if  the  present  provision  is  maintained,  there  is  great  danger  of  making  this  board 
cumbersome  and  unduly  large.  The  very  object  sought  to  be  attained  would  be  accom- 
plished by  the  appointment  of  these  representative  heads  of  the  various  agricultural 
and  horticultural  societies.  It  seems  to  me  this  is  an  unnecessary  provision,  and  I 
hope  the  committee  will  agree  with  me  and  strike  out  these  lines. 

The  Chairman:  The  question  is  on  the  motion  of  the  gentleman  from  Albemarle 
(Mr.  Lindsay)  to  strike  out  lines  12  and  13. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  26;  noes,  27. 

Mr.  Watson:    I  offer  the  following  as  a  substitute  for  the  whole  of  Section  1: 

.  i 

The  General  Assembly  shall  establish  and  maintain  at  the  seat  of  government, 
and  such  departments  elsewhere  as  may  be  necessary,  a  Bureau  of  Agriculture  and 
Immigration,  whose  duties  and  powers  shall  be  defined  by  law. 

Mr.  Watson:  Mr.  Chairman,  in  offering  the  substitute  which  has  been  read,  I 
must  state  to  the  Committee  of  the  Whole  that  I  feel  much  reluctance  and  some  em- 
barrassment. I  have  great  personal  respect,  sir,  for  the  gentlemen  composing  the 
committee  of  this  body  who  have  brought  in  this  report,  and  especially  for  the  hon- 
orable chairman  of  that  committee.  It  is  perfectly  obvious,  sir,  that  the  gentlemen 
of  the  committee  themselves  do  not  agree  as  to  this  matter,  and  it  has  been  threshed 
out  here  for  two  days  past.    Now,  Mr.  Chairman,  the  whole  of  their  report  

Mr.  Stuart:  What  is  the  basis  of  your  statement  that  the  committee  does  not 
agree? 

Mr.  Watson:  The  basis  of  the  statement  is  that  the  report  of  the  committee  em- 
bodies but  three  sections,  and  they  do  not  agree  on  but  one  of  them. 

Mr.  Stuart:  We  are  only  considering  one  section  now,  as  I  understand  it.  My  un- 
derstanding is  that  the  committee  does  agree  on  that  section,  with  one  exception. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2071 


Mr.  Watson:  Mr.  Chairman,  the  point  I  wish  to  make  is  that  while  these  gentle- 
men have  only  been  able  to  bring  in  here  three  sections  of  the  committee's  report, 
the  fact  is  that  about  two  of  them  they  do  not  agree  among  themselves,  and  to  the 
third  one  they  have  accepted  so  many  amendments  that  the  committee  s  report  is 
practically  nullified  before  this  body. 

Mr.  Chairman,  where  doctors  fall  out,  laymen  themselves  have  a  right  to  express 
an  opinion,  and  I  think  the  contention  here  upon  the  floor  of  the  committee  this  morn- 
ing illustrates  the  wisdom  of  a  maxim  which  the  celebrated  John  Randolph  often 
used,  that  when  a  thing  is  at  rest  you  ought  not  to  disturb  it,  but  let  it  stay  where  it 
Is.  In  my  judgment,  the  report  of  the  committee  undertakes  to  weave  in  the  Con- 
stitution a  cumbersome  piece  of  machinery  which  may  in  the  future  prove  exceed- 
ingly impracticable,  and  which  at  some  future  day  the  Commonwealth  may  find  un- 
desirable. 

Mr,  Chairman,  we  cannot  undertake  to  say  in  the  year  1902  that  the  Board  of 
Agriculture  ought  always  to  be  composed  of  twelve  members,  one  from  each  con- 
gressional district.  We  cannot  undertake  to  say  here,  in  the  present  impoverished 
condition  of  agriculture  in  the  State,  that  this  machinery  recommended  by  those  gen- 
tlemen is  the  only  perfect '  and  desirable  machinery  for  the  administration  of  a  de- 
partment of  this  sort;  and  I  believe,  sir,  while  I  claim  no  expert  knowledge  on  this 
subject,  but  simply  the  same  right  to  speak  on  this  subject  that  my  farmer  friend,  the 
gentleman  from  the  county  of  Norfolk  (Mr.  Portlock),  and  my  farmer  friend,  the 
gentleman  from  the  county  of  Warren  (Mr.  O'Flaherty)  have  to  talk  about  agri- 
culture, I  am  here  with  much  diffidence  and  a  good  deal  of  reluctance  to  express  my 
opinion  among  these  experts.  The  fact  is  that  in  this  report  of  the  committee  they 
have  changed  the  Constitution  in  two  important  particulars.  In  the  first  place,  they 
have  undertaken  to  yoke  up  a  practical  department  of  the  government  with  a  theoreti- 
cal agricultural  school  in  one  section  of  the  State. 

I  hope  the  gentlemen  of  the  committee  will  not  understand  me  as  attacking  the 
usefulness  of  that  institution,  because  I  believe,  sir,  it  is  doing  good  ork  vv-ithin 
this  Commonwealth;  but,  while  the  powers  of  a  Constitutional  Convention  may  be 
unlimited,  while  we  can  do  almost  anything  here  except  make  a  man  a  woman  and  a 
woman  a  man.  the  fact  is  we  will  not  be  able  to  hitch  up  in  the  same  harness  and 
drive  double  the  theoretical  and  the  practical  people  on  the  subject  of  agriculture. 
Why,  sir,  you  cannot  get  practical  farmers  themselves  to  agree  about  any  proposition 
like  this. 

Mr.  Stuart:    Do  you  belong  to  either  one  of  these  classes,  theoretical  or  practical? 

Mr.  Watson:  I  am  in  identically  the  same  attitude  that  the  gentleman  from 
Brunswick  (Mr.  Turnbull)  occupies;  I  undertake  to  spend  what  money  I  make  prac- 
ticing law  trjang  to  run  a  farm.  (Laughter.) 

Mr.  Stuart:  We  have  some  gentlemen  on  this  committee^  and  there  are  a  good 
many  gentlemen  all  through  the  State,  who  agree  with  us,  who  have  been  able  to 
make  some  money  running  a  farm  without  the  aid  of  an  outside  business. 

Mr.  Watson:  Well,  Mr.  Chairman,  taking  a  fair  comparison  among  the  gentle- 
men here,  that  must  be  explained  by  the  character  of  the  soil  on  which  those  gentle- 
men reside,  and  not  by  their  character  of  mind,  or  the  occupation  they  follow. 

What  I  mean  to  say,  sir,  Is  that  of  the  farmers  in  Virginia,  who  comDose  86  per 
cent,  of  the  people,  no  two  of  them  agree  as  to  this  matter  of  practical  administration 
of  an  agricultural  department,  and  I  would  risk  my  life  upon  the  assertion  that  there 
is  not  a  practical  farmer  within  the  Commonwealth  who  will  agree  with  the  presi- 
dent of  Blacksburg  College,  up  yonder,  who  Is  a  theoretical  farmer,  as  to  how  to 
make  a  crop  or  make  two  blades  of  grass  grow  where  only  one  grew  before. 

It  is  all  very  well  for  these  gentlemen  to  say  there  Is  no  competition,  no  conflict 


2072  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

between  Blacksburg  College  and  the  Department  of  Agriculture.  I  do  not  undertake 
to  say  that  the  competition  heretofore  has  been  inspired  by  that  educational  insti- 
tution, or  that  it  in  any  way  has  been  connected  with  it;  but  the  fact  is  that  the  Gen- 
eral Assembly  of  Virginia  and  the  halls  of  legislation  have  witnessed  this  conflict  in 
former  sessions,  and  there  has  been  an  irreconciliable  difference  between  the  practi- 
cal department  of  "the  government  known  as  the  Agricultural  Department  and  this 
theoretrical  institution  beyond  the  mountains  yonder. 

In  the  first  place,  this  report  that  you  intend  to  incorporate  into  the  Constitution 
undertakes  to  yoke  up  and  combine,  nolens  volens,  the  theoretical  department  of  agri- 
culture connected  with  the  State  and  the  practical  department.  That  is  one  objection 
I  have  to  it.  The  second  objection  I  have  is  that  the  report  of  this  Commissioner  of 
Agriculture  by  the  Board  of  Agriculture,  undertakes  to  fasten  on  the  Common- 
wealth a  Board  of  Agriculture  consisting  of  fourteen  members,  one  from  each  con- 
gressional district  of  the  State,  one  from  Blacksburg  College,  and  the  Commissioner 
of  Agriculture  himself. 

At  some  future  time  within  the  State  it  may  be  found  by  the  General  Assembly, 
just  as  it  has  been  found  by  the  Convention,  that  instead  of  having  one  commis- 
sioner to  discharge  the  functions  of  this  department  there  should  be  a  commission 
to  discharge  it.  I  understand  the  Convention,  for  the  next  week,  perhaps,  will  be 
here  deliberating  upon  the  proposition  as  to  whether  there  shall  be  a  commission  to 
manage  the  corporation  and  railroads  in  the  State  instead  of  a  commissioner,  as  has 
heretofore  been  the  case;  and  I  say  if  in  one  department  of  the  State  government  It 
has  been  ascertained  that  the  multiplication  of  corporate  interests  demand  that  there 
shall  be  a  commission  instead  of  a  commissioner,  so  the  diversity  of  agricultural  pur- 
suits in  the  Commonwealth  may  at  some  time  require  that  there  should  be  a  com- 
mission, and  not  a  single  commissioner,  to  discharge  this  duty. 

Mr.  Chairman,  the  conclusion  I  have  arrived  at  and  the  opinion  which  I  pro- 
posed to  express  to  the  committee  was  that  we  ought  not  to  put  in  the  Constitution  a 
hard  and  fast  rule  on  this  subject,  but  to  do  as  the  old  Constitution  did,  devolve 
upon  the  General  Assembly  of  Virginia  to  make  from  time  to  time  such  changes  as,  in 
their  wisdom  and  discretion,  the  needs  of  the  people  of  the  Commonwealth  may  de- 
mand. Consequently,  sir,  I  have  offered  a  resolution  which  provides  practically  in  the 
language  of  the  old  Constitution  that  the  General  Assembly  shall  establish  a  Bureau 
of  Agriculture  and  Immigration  with  its  office  at  the  seat  of  government,  and  such 
subordinate  departments  as  may  be  necessary,  with  powers  and  duties  to  be  pre- 
scribed by  the  General  Assembly  of  the  Commonwealth;  and  I  submit  that,  while  the 
opinion  of  your  committee,  and  especially  of  distinguished  farmers  upon  that  commit- 
tee, is  entitled  to  more  consideration  at  the  hands  of  this  body  tthan  my  own  upon 
this  subject,  with  which  I  am  not  specially  conversant,  the  fact  is  I  have  no  guar- 
antee that  these  gentlemen  have  found  the  philosopher's  stone  in  undertaking  to 
manage  agricultural  affairs. 

I  do  not  know  that  there  is  any  special  virtue  in  the  number  twelve  as  a 
Board  of  Agriculture.  I  do  not  know,  sir,  that  even  adding  the  head  of  Blacksburg 
College  would  give  all  the  wisdom  and  all  the  experience  in  the  administration  of  an 
agricultural  department  that  is  necessary  to  be  gained;  and  I  am  unwilling  to  con- 
cede that  they  can  sit  down  here  at  the  beginning  of  the  twentieth  century  and 
formulate  and  project  a  department  of  agriculture  with  such  branches  and  such 
provisions  as  will  meet  the  needs  of  all  future  time. 

For  that  reason,  sir,  while  deferring  to  their  judgment,  and  while  not  wishing  to 
antagonize  their  opinion,  still  I  prefer  to  trust  to  the  needs  of  the  future  and  to  the 
combined  wisdom  of  the  General  Assembly  of  the  people  from  time  to  time  rather 
than  to  the  opinion  of  the  committee  formulated  here  in  a  concrete  manner  on  a 
subject  which  may  vary  as  the  years  come  and  go. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2073 

I  submit,  Mr.  Chairman,  we  ought  to  devolve  this  thing  on  the  General  Assembly 
and  let  them  arrange  all  these  details  about  which  there  is  so  much  difference  here 
among  the  agricultural  doctors,  and  trust  in  the  future,  as  we  have  trusted  in  the 
past,  to  meet  these  responsibilities  and  exigencies  from  time  to  time. 

Mr.  Stuart:  I  have  listened  with  great  interest  to  the  very  courteous  and  con- 
siderate remarks  of  the  gentleman  from  Nottoway  (Mr.  Watson).  By  the  way,  his 
remarks  are  always  courteous  and  considerate.  When  he  made  the  announcement  in 
the  beginning  of  his  speech  that  he  spent  the  proceeds  of  a  fairly  good  practice  un- 
dertaking to  farm,  I  was  somewhat  surprised;  but  before  he  finished  I  felt  no  sur- 
prise whatever.  On  the  contrary,  I  was  convinced  that  he  could  spend  at  farming 
the  proceeds  of  a  practice  five  times  as  big  as  his,  large  as  it  is,  as  we  all  know. 

Now,  he  has  come  here  from  Nottoway  county  to  announce  the  proposition  that 
theory  in  farming  is  a  failure.  He  might  as  well  announce  the  fact  that  electric 
power  and  electric  lights  are  failures.  If  there  is  any  one  thing  that  is  fastening 
itself  upon  this  country  to-day,  and  I  say  it  as  a  practical  farmer  it  is  the  fact  that 
every  man  who  undertakes  to  make  a  living  at  that  calling  must  know  the  theory  of 
farming  as  to  new  methods,  new  crops,  new  markets,  and  as  to  all  the  advanced  dis- 
coveries being  sent  out  constantly  from  the  various  experimental  stations  and  agri- 
cultural institutions  of  this  whole  country  and  being  read  with  eagerness  by  the  only 
class  of  agriculturists  in  the  United  States  who  are  able  to  make  money  without  an 
outside  business. 

We  hear  this  is  a  theoretrical  institution  up  there.  It  is  just  such  a  one  as  is 
presided  over  by  James  F.  Wilson,  who  was  called  by  Mr.  McKinley  to  the  head  of  the 
Department  of  Agriculture  of  the  United  States,  and  who,  since  his  incumbency  in 
that  oflSce,  has  done  more  for  the  agricultural  interests  of  this  country  than  all  the 
other  commissioners;  combined.  He  has  brought  about  the  introduction  of  new  crops  in 
new  territory.  He  has  shown  people  what  they  can  grow,  and  what  they  ought  to 
grow,  and  has  then  found  them  a  market  for  it.  He  has  opened  up  the  markets 
of  the  world  to  products  which  had  been  locked  up  hard  and  fast  in  this  country  for 
many,  many  years.  He  is  the  kind  of  a  theorist  that  the  gentleman  from  Nottoway 
says  should  not  be  brought  In  contact  with  the  agricultural  interests  of  the  State. 
It  is  the  lack  of  intelligence  and  of  knowledge  of  the  science  of  farming,  not  of  the 
red  tape — I  repudiate  that  as  much  as  he  does — but  it  is  the  lack  of  these  essentials 
which  come  with  a  scientific  training,  that  is  making  all  or  the  greater  portion  of 
Virginia,  at  least,  take  the  back  rank  among  agricultural  States;  and  it  is  the  senti- 
ment which  he  has  expressed  on  this  floor,  if  he  will  excuse  me,  which  makes  the 
section  from  which  he  hails  stand  in  the  advance  guard  of  the  class  I  have  just 
mentioned. 

Mr.  Watson:  Anticipating  that  my  friend  may  make  some  such  suggestion  as 
that,  and  knowing  that  he  comes  from  the  great  grazing  section  of  the  Common- 
wealth, where  the  cattle  lie  upon  a  thousand  hills,  I  looked  at  the  Auditor's  report 
this  morning  to  see  hov/  that  great  and  flourishing  community  stood  in  the  way  of 
*  agricultural  prosperity.  I  ascertained  the  fact  that  the  broom  straw  down  in  my 
county  is  assessed  at  a  little  over  $5  an  acre,  and  that  the  blue  grass  in  his  county 
is  assessed  at  a  little  over  ?4  an  acre. 

Mr.  Stuart:  Well,  sir,  you  do  not  know  anything  about  the  average  quality  of 
the  land  of  that  county.  Two-thirds  of  it  is  mountainous,  as  everybody  knows,  and 
and  a  great  deal  of  it  is  assessed  at  fifty  cents  and  $1  an  acre,  and  assessed  too  high 
at  that. 

Mr.  Watson:  Will  not  my  friend  admit,  then,  that  two-thirds  of  his  county  is 
in  the  van  of  that  class  he  described  a  moment  ago? 

Mr.  Stuart:  No,  sir,  it  is  just  in  the  situation  where  nature  left  it.  It  has  not 
undertaken  to  lead  other  people  in  anything.  But  be  that  as  it  may,  we  were  on  the 
131 — Const.  Deb. 


2074  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

question  of  experimental  or  theoretical  farming,  and  he  says  we  must  not  undertake 
to  yoke  the  practical  with  the  theoretical.  It  is  to  make  the  Polytechnic  Institute 
more  practical,  and  to  give  the  Agricultural  Board  the  opportunity,  at  least,  of  pre- 
senting more  and  better  theories  than  they  are  now  able  to  do  with  their  limited 
resources,  that  this  report  is  formulated. 

I  want  to  say  again  that  this  agricultural  bureau,  in  my  judgment,  is  admirably 
managed  by  the  present  incumbent.  It  is  doing  a  good  work;  but  I  do  claim,  and 
am  able  to  prove,  that  there  are  agencies  and  instrumentalities  lying  idle  at  our 
Polytechnic  Institute  which  he  would  be  glad  to  avail  himself  of  if  brought  properly 
in  touch  with  them,  and  this  continual  friction  between  these  departments  would 
be  removed.  It  was  to  bring  about  peace  and  harmony,  mutuality  of  interests,  unity 
of  action,  and  all  the  things  necessary  to  utilize  the  theoretical  and  the  practical  that 
this  report  is  framed;  and  I  submit,  sir,  it  will  reach  that  result  for  whatever  it 
may  be  worth. 

Mr.  O'Flaherty:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  detain 
you  but  a  few  minutes.  I  hope  gentlemen  will  not  vote  for  the  substitute  offered  by 
the  gentleman  from  Nottoway  (Mr.  Watson).  The  Committee  on  Agriculture  met 
with  many  difficulties,  and  it  at  last  decided  that  it  would  put  beyond  peradventure 
the  existence  of  an  Agricultural  Board  in  the  State  of  Virginia.  The  motion  of  the 
gentleman  from  Nottoway,  v/ould  put  it  right  back  where  it  has  been  for  a  long  time. 
You  go  to  the  farmers  of  Virginia,  and  you  say  to  them,  "The  Constitutional  Con- 
vention refused  to  put  in  the  Constitution  that  there  shall  be  a  Department  of  Agri- 
culture," and  you  do  one  of  the  worst  things  you  can  do  for  commending  this  Con- 
stitution. 

Gentlemen  have  said  on  this  floor  to-day  that  there  has  been  a  fight  for  the  very 
existence  of  the  Department  of  Agriculture  in  the  General  Assembly.  I  desire  to 
call  attention  to  the  fact  that  the  gentleman's  amendment  proposes  to  leave  this 
matter  with  the  General  Assembly,  where  it  has  been  for  so  long  a  time.  He  claims 
that  theoretical  farming  in  Virginia  has  been  a  failure,  and  yet  the  whole  question 
has  been  with  the  General  Assembly  for  twenty-five  or  thirty  years. 

I  am  not  going  to  take  the  time  of  the  Convention,  but  I  hold  in  my  hand  the 
report  of  the  Commissioner  of  Agriculture,  and  if  any  intelligent  man  in  Virginia 
can  read  it  and  not  come  to  the  conclusion  that  we  are  making  progress,  I  cannot 
understand  how  he  can  do  so.  Take  the  question  of  raising  apples  in  Virginia,  a 
great  industry.  The  people  are  dealing  with  it  in  a  systematic,  intelligent  way. 
They  are  learning  to  know  what  are  the  natural  enemies  of  the  apple  tree,  how  to 
deal  with  them,  and  destroy  them,  and  yet  the  gentleman  gets  up  here  in  the  twentieth 
century  and  says  we  cannot  make  a  system,  which  will  protract  itself  out  into  the 
future;  and  that  same  gentleman  hails  from  the  county  of  Nottoway,  the  county 
that  got  up  the  famous  "Nottoway  Resolutions"  that  set  the  State  on  fire  about  a 
matter  that,  in  my  opinion,  is  not  of  as  much  importance  as  the  agricultural  interests 
of  the  State. 

He  comes  here  from  the  Black  Belt  of  Virginia,  and  is  striving  now  to  force  upon 
the  people  of  Virginia  new  suffrage  laws  that  are  to  go  down  through  the  decades 
yet  to  come,  and  still  he  says  to  the  white  people  of  Virginia  who  are  interested  in 
farming,  "You  cannot  do  a  thing  for  the  future;  you  must  leave  it  all  to  the  years 
as  they  come  and  go."  Here  comes  a  man  from  a  county  that  is  as  poor  as  hen-grass 
itself,  and  tries  to  dictate  to  the  agricultural  people  of  Virginia — Nottoway,  the  land 
of  "Nottoway  Resolutions." 

I  will  answer  the  gentleman  in  his  aniniadversions  upon  the  county  of  Russell, 
by  a  comparison  of  the  county  from  which  I  come  and  the  county  of  Nottowiay. 
Nottoway  county  has  177,000  acres  of  land  belonging  to  whites,  valued  at  $429,000, 
or  about  $2.50  an  acre. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2075 

I  have  made  tlie  calculation,  and  I  will  let  the  gentleman  look  at  the  Auditor's 
report  if  it  is  of  any  interest  to  him.  It  has  not  much  interest  for  him,  I  suppose. 
In  the  county  of  Warren  there  are  125,000  acres  of  land  owned  by  whites,  assessed 
at  $805,000,  in  round  numbers,  and  in  Clarke  county  there  are  109,000  acres,  owned 
by  whites,  assessed  at  $1,389,103,  or  more  than  a  million  and  a  third  The  total  value 
of  real  estate  of  whites  and  blacks  in  Nottoway  is  $1,078,880,  and  that  of  Clarke  and 
Warren  Is  $3,390,952. 

I  do  presume  to  come  here  and  in  part  speak  for  the  agricultural  interests  of 
the  State,  and  I  ask  that  this  committee  put  it  in  hard  and  strong  in  the  Constitu- 
tion of  Virginia  that  there  shall  be  an  Agricultural  Department,  and  that  it  shall  be 
maintained  forever.  I  am  not  a  farmer,  in  one  sense,  and  yet  I  know  something  of  it, 
because  I  was  born  and  reared  on  a  farm.  I  have  done  all  sorts  of  farm  work,  and 
I  am  doing  a  little  farming  to-day,  and  I  am  glad  to  say  the  money  I  make  practicing 
law  is  not  all  lost  in  farming.  If  the  gentleman  will  come  up  there  in  God's  country 
and  go  to  farming,  he  will  take  a  different  view  of  it;  but  down  in  Nottoway  county, 
where  they  cannot  see  anything  but  the  ever  present  imaginary  phantom  of  negro 
rule,  perhaps  it  will  be  possible  for  him  to  have  other  interests  than  that  of  suffrage, 
and  not  think  this  subject  of  too  little  dignity  to  go  into  the  Constitution  of  the  State. 

Now,  let  us  see  if  we  are  too  theoretical.  We  have  tried  to  combine  the  theoreti- 
cal with  the  practical,  and  that  is  what  we  ought  to  always  do.  We  give  the  power  to 
the  State  to  select  the  best  men  from  every  congressional  district  of  Virginia  to  come 
here  with  a  trained  Commissioner  of  Agriculture,  who  shall  gather  around  him  a  staff 
of  scientists,  and  men  who  understand  the  different  kinds  of  farming,  such  as  horti- 
culture, agriculture,  and  all  that,  that  they  may  in  an  intelligent  way  send  out  and 
distribute  the  information  which  the  United  States  is  giving  them,  and  which  Vir- 
ginia herself  can  give,  and  furnish  such  information  as  will  bring  us  intelligent 
emigrants  to  fill  up  our  waste  places. 

I  wish  to  call  attention  to  what  the  gentleman  from  Bedford  (Mr.  Brown)  said 
to-day  in  regard  to  Blacksburg.  You  can  send  out  from  Blacksburg  through  the  United 
States  mails,  free  of  cost,  a  great  deal  of  information.  And  what  the  people  want 
to-day  is  information. 

I  will  say  to  the  gentleman  that  a  distinguished  senator  of  this  State  who  is 
now  ill  and  absent  from  this  body  said  to  me  last  summer  that  he  believed  there 
ought  to  be  an  experimental  station  in  every  county  of  the  State  to  teach  the  people, 
and  I  believe  it;  yet  this  gentleman  from  Nottoway,  from  the  land  of  broom  sedge 
and  rabbits,  comes  up  here  and  tells  us  it  is  theoretical;  he  tells  us  we  can  learn 
nothing.  That  same  theory  used  to  be  held  in  regard  to  school  teaching  and  preaching, 
that  all  you  needed  was  to  go  forth  and  trust  to  luck  or  the  Lord  to  teach  or  preach, 
and  you  did  not  need  to  study  child  nature  or  methods  of  teaching  in  order  to  instruct 
the  youth. 

That  has  been  exploded.  A  man  cannot  even  preach  without  education,  and  we 
are  on  the  verge  of  a  time  when  a  man,  in  order  to  succeed  in  farming,  will  have  to 
be  a  broad-minded,  educated,  up-to-date  man;  and  farmers  like  my  friend,  who  says 
he  farms  without  any  intelligence  and  loses  money,  will  have  to  go  and  take  a  back 
seat,  as  they  ought.  I  say  we  have  not  made  any  theoretical  department,  and  I  wish 
to  refute  that  idea.  The  committee  has  agreed  to  and  accepted  every  amendment 
that  looked  to  perfecting  the  report,  and  there  never  has  been  a  report  that  came  in 
here  and  was  amended  in  as  good  faith  and  with  as  good  feeling  as  this  is  to-day; 
and  those  of  the  gentlemen  of  the  committee  who  did  not  agree  with  the  committee 
have  all  gotten  together,  and  there  is  not  a  man  raising  his  voice,  that  I  know  of, 
against  establishing  this  department  except  my  distinguished  young  friend,  the  farmer 
from  Nottoway. 

Mr.  Watson:     I  will  inform  the  gentleman  that  under  the  resolution,  if  he  will 


2076  DEBATES  OF  THE  CONSTITUTION^AL  CONVENTION"  OF  VIEGINIA. 

take  the  care  to  read  it,  the  General  Assembly  is  compelled  to  establish  a  department 
of  agriculture. 

Mr.  O'Flaherty:  The  only  difference  I  see  between  it  and  the  old  Constitution  is 
that  you  say  it  shall  and  in  the  old  Constitution  it  was  "may."  We  have  already  got 
out  of  the  realm  of  "may"  into  the  realm  of  "shall"  as  to  the  power  this  department 
shall  have  by  the  action  of  the  General  Assembly.  But  it  has  been  said  upon  this 
floor,  and  I  have  letters  from  people  who  know  about  this  matter,  and  confirm  the 
statements  that  there  has  been  a  fight  from  time  to  time  for  the  very  existence  of  this 
department.  How  can  the  department  grow  and  succeed  when  its  very  existence  is 
imperilled  by  the  meeting  of  the  General  Assembly  every  two  years. 

In  the  name  of  the  farmers  of  Virginia,  I  ask  and  demand  that  you  put  it  in  the 
Constitution  that  there  shall  be  a  Bureau  of  Agriculture  and  Immigration;  that  It 
shall  be  maintained  at  Richmond;  that  there  shall  be  certain  officers  whose  duty  it 
will  be  to  look  after  it,  and  put  it  beyond  the  pale  of  peradventure. 

I  say  to  you  that  the  white  section  of  Virginia,  the  great  agricultural  sections 
of  Virginia,  want  this.  You  can  do  nothing  that  will  please  them  better.  It  I  have 
said  anything  that  will  offend  my  friend  from  the  Black  Belt,  I  did  not  mean  to  do  It, 
but  I  am  in  earnest  about  the  agricultural  interests  of  Virginia,  the  most  important 
interest  of  the  great  Valley  of  Virginia,  a  part  of  which  I  represent  upon  this  floor; 
and  I  ask  you  to  adopt  the  report  of  the  committee  as  it  is  now  presented  to  the 
Committee  of  the  Whole. 

Mr.  R.  L.  Gordon:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  will  ask 
your  attention  for  a  short  time  in  support  of  the  amendment  offered  by  the  gentleman 
from  Nottoway  (Mr.  Watson).  I  never  expected,  when  I  came  to  this  body,  to  be  put 
In  the  position  to  have  to  plead  for  and  defend  the  Underwood  Constitution.  I  had 
some  little  prejudice  against  that  instrument,  I  confess,  when  I  came  to  this  body; 
but,  as  the  situation  now  stands,  we  have  to  appeal  to  John  C.  Underwood  to  protect 
us  against  the  gentleman  from  Warren  (Mr.  O'Flaherty).  Mr.  Chairman,  I  have  the 
utmost  respect  for  the  gentlemen  who  compose  this  committee.  I  confess,  sir,  I  thought 
when  the  committee  was  composed  it  might  possibly  be  a  little  play  to  the  galleries, 
and  I,  for  one,  while  I  stand  upon  this  floor  representing  a  community  of  farmers,  and 
representing  nothing  but  farmers,  never  desire  to  undertake  to  give  those  men  what 
I  do  not  believe  is  really  for  their  good;  in  the  first  place,  on  my  own  account,  and  for 
a  second  reason,  that  I  believe  they  have  intelligence  enough  to  understand  that  which 
will  really  benefit  them,  and  to  see  through  that  which  will,  in  the  guise  of  a  benefit, 
possibly  increase  the  expenditures  which  now  rest  upon  them. 

Mr.  Chairman,  why  should  we  make  this  a  constitutional  board?  Take  the  report 
of  the  committee.  We  have  a  board  with  no  powers;  we  have  a  board  whose  powers 
are  to  be  entirely  conferred  by  the  General  Assembly;  and  if  the  powers  of  that  board 
are  entirely  within  the  province  of  the  General  Assembly,  why  not  leave  the  board 
within  its  control?  If  the  General  Assembly  can  absolutely  control  it,  and  dictate 
to  it,  and  dominate  it  in  every  way,  why  should  we  have  more  constitutional  officers? 
That  is  the  question. 

Now,  sir,  I  leave  the  question  between  the  gentleman  from  Warren  (Mr.  O'Flah- 
erty) and  the  gentleman  from  Nottoway  (Mr.  Watson)  as  to  theoretical  and  practical 
farming.  My  own  experience  is  that  a  man  who  can  make  money  out  of  the  ground 
never  can  make  it  on  paper,  and  that  the  man  who  can  make  money  on  paper  never 
can  make  it  out  of  the  ground;  but,  apart  from  that  consideration,  we  have  here  a 
board  of  twelve,  to  begin  with,  and  we  have  the  power  in  the  General  Assembly  to 
add  to  that  board,  ad  infinitum.  We  have  an  unlimited  board,  and,  gentlemen,  you 
cannot  have  boards  without  having  expense.  I  believe  the  practical  farmers  of  Vir- 
ginia will  see  that  this  will  place  upon  them  an  additional  set  of  officers  who,  sooner 
or  later,  will  be  an  additional  expense  to  them. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2077 

Mr.  Stuart:  As  I  understand  you,  sir,  you  want  the  General  Assembly  to  have 
control  of  the  whole  question  of  creating  that  board,  as  to  its  powers  and  all?  And 
yet  you  object  to  leaving  the  simple  discretion  to  the  G-eneral  Assembly  of  adding 
to  it? 

Mr.  R,  L.  Gordon:  On  the  contrary,  Mr.  Chairman,  I  am  willing  to  leave  the 
whole  matter  to  the  General  Assembly,  for  the  reason  that  all  legislation  is  experi- 
mental. I  stand  here  to  deny  the  proposition  that  this  body  of  men  are  endowed 
with  all  the  wisdom  that  can  ever  come.  I  expect  to  vote  here,  perhaps,  for  legisla- 
tive measures,  but  I  shall  never  cast  my  ballot  for  any  legislative  measure  unless  it 
is  beyond  the  power  of  the  people  of  Virginia  to  get  that  measure  through  their 
General  Assembly,  That  will  be  the  ground,  and  the  only  ground,  upon  which  I  will 
vote  for  it;  but  when  the  gentleman  from  Warren  tells  me  that  this  Board  of  Agri- 
culture has  to  fight  for  its  existence,  I  say  in  an  agricultural  State  like  Virginia, 
where  the  agricultural  interest  on  this  floor  and  in  the  General  Assembly  is  an 
overpowering  interest,  when  it  can  outvote  every  interest  in  the  State,  if  the  Board 
of  Agriculture  as  now  constituted  can  demonstrate  to  the  people  of  the  State  that  it 
is  worthy  of  existence,  th-e  farmers  of  Virginia  will  keep  it  in  existence;  if,  on  the 
contrary,  they  find  the  Agricultural  Board  which  they  have  established  is  a  board 
which  ought  to  be  B.bolished,  the  people  can  abolish  it.  The  point  I  make  is  that  the 
provision  of  the  Underwood  Constitution,  offered  by  the  gentleman  from  Nottoway, 
has  the  advantage  that  it  leaves  the  farmers  of  the  State  to  regulate  this  matter  as 
may  seem  best  to  them  in  the  future,  and  it  does  not  bind  upon  them  and  tie  upon 
them  a  hard  and  fast  board  that  they  cannot  rid  themselves  of.  That,  Mr.  Chairman, 
is  my  main  objection  to  this  board. 

One  word  further.  As  I  understand  this  report,  there  are  only  two  principles  in  it 
to  show  how  these  things  may  reflect  upon  the  future.  The  first  is  that  no  license 
tax  or  charge  of  any  kind  whatsoever  can  be  assessed  against  or  collected  of  any  pro- 
ducer of  farm  products  for  the  right  to  sell  in  any  part  of  the  State  the  products 
which  he  has  raised.  That  strikes  me,,  representing  a  farming  country,  as  all  right 
I  do  not  know  what  the  representatives  of  cities  here  are  going  to  think  of  it.  But 
the  next  proposition  or  principle  which  is  embodied  in  this  report— I  am  not  going 
to  discuss  it,  Mr.  Chairman;  that  would  be  out  of  order,  as  I  understand,  but  simply 
to  show  wh3^  we  had  better  have  the  system  of  elasticity  which  would  be  given  us 
by  our  General  Assembly  than  to  have  the  iron-bound  rule  fixed  in  our  Constitution — 
and  I  read  Section  3:    "Counties,  cities  and  tov^ns  shall  have  the  power"  

Mr.  Stuart:  Mr.  Chairman,  I  raise  the  point  of  order  that  we  are  discussing  an 
agricultural  bureau  and  the  section  creating  that  bureau,  and  the  gentleman  is  reading 
a  clause  or  a  section  which  is  presented  for  an  entirely  different  purpose  in  reference 
to  an  illustrial  branch  of  the  committee's  work. 

The  Chairman:  The  substitute  of  the  gentleman  from  Nottoway  (Mr,  "Watson) 
applies  only  to  Section  1  of  the  report,  although  the  debate  has  covered  everything 
from  the  suffrage  question  to  the  Agricultural  Bureau.  (Laughter.) 

Mr.  R,  L,  Gordon:  I  did  not  intend,  Mr.  Chairman,  to  read  that  article,  and  1 
will  not  detain  the  committee  for  the  purpose  of  discussing  it;  but  I  merely  allude  to 
that  section  for  the  purpose  of  showing  that  this  report  does  not  embrace  principles 
which  ought  to  be  placed  in  a  Constitution,  except  two,  and  that  one  of  those  prin- 
ciples is  a  vicious  principle,  showing  the  unwisdom  of  making  this  a  constitutional 
matter.  That  principle  gives  the  right  of  exemption  to  industries.  It  gives  the  right 
practically  for  us  to  go  in  the  old  boom  business  again  and  exempt  property  from 
taxation  in  order  to  induce  people  to  come  among  us  and  invest  their  wealth.  I  am 
one  of  those  gentlemen,  Mr.  Chairman,  who  believe  that  if  you  have  a  good  thing 
in  your  State  that  is  going  to  pay  the  man  that  develops  it,  that  good  thing  is  going 
to  make  him  develop  it  for  the  money  he  can  get  out  of  it.    The  point  I  wanted  to 


2078  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

make  and  emphasize  to  this  committee  is,  that  practically  the  only  thing  this  report 
does  besides  enunciating  those  two  principles  to  which  I  have  adverted  is  to  con- 
stitute a  board.  Now,  if  any  gentleman  on  this  floor  believes  the  General  Assembly 
is  not  just  as  competent  to  form  that  board  as  we  are,  and  who  further  believes  that 
the  General  Assembly  does  not  have  an  additional  advantage,  if  we  give  it  the  privi- 
lege of  changing  and  regulating  that  board  as  the  changing  interests  of  the  future 
may  demand  

Mr.  Portlock:  I  should  like  to  ask  the  gentleman  from  Louisa  if  the  Gen^raU 
Assembly  could  not  with  equal  propriety  establish  a  corporations  commission?  Or 
any  other  office  that  it  sought  to  be  established? 

Mr.  R.  L.  Gordon:  Undoubtedly,  the  General  Assembly  could  establish  a  cor- 
porations commission,  but  some  of  us  are  afraid  the  General  Assembly  will  never  do 
it,  because  they  have  not  done  it  for  thirty  years. 

Mr.  Chairman,  I  do  not  desire  to  detain  the  committee  further  in  this  matter.  In 
conclusion,  I  ask  the  members  of  the  committee  to  be  careful  how  we  impose  upon  the 
future  generations  a  board  of  this  sort,  for  which  there  is  no  necessity.  The  General 
Assembly  has  already  created  a  board  which  will  be  entirely  responsive  to  the  will 
of  the  people  of  Virginia,  because  the  agricultural  interest  of  the  State  is  over- 
whelming in  the  counsels  of  the  State,  and  there  is  no  corporate  interest  or  any  other 
kind  of  interest  that  will  come  here  to  antagonize  a  board  of  this  character,  peculiarly 
for  the  farmers;  and  therefore  I  say  the  General  Assembly  can  manage  this  matter 
better  than  we  can  manage  it. 

Mr.  Dunaway:  Mr.  Chairman,  this  is  not  a  question  of  what  we  know  about  - 
farming.  Neither  is  it  a  question  of  respect  for  one  of  our  committees.  Every  com- 
mittee that  has  been  appointed  is  entitled  to  all  respect.  The  question  is  one  of 
opinion  about  v/hat  should  be  put  into  our  organic  law.  It  is  not  a  question  of  whether 
there  should  be  theory  along  with  practice.  I  think  the  gentleman  from  Russell  (Mr. 
Stuart)  has  unintentionally,  perhaps,  been  unjust  to  the  gentleman  from  Nottoway 
(Mr.  Watson),  for  I  am  sure  he  believes,  as  well  as  the  gentleman  from  Russell,  that 
we  need  theory  and  sound  principle  as  the  precedent  of  good  practice.  But  that  is  not 
the  question  here.  The  question  is  whether  we  shall  have  in  our  organic  law  the  lan- 
guage proposed  by  the  gentleman  from  Nottoway,  or  that  which  If;  proposed  by  the 
committee. 

I  unhesitatingly  give  my  preference  to  the  incorporation  of  the  language  sub- 
mitted in  the  substitute  of  the  gentleman  from  Nottoway. 

It  seems  to  be  left  out  of  sight,  Mr.  Chairman,  that  we  already  have  in  Vir-^ 
glnia  what  is  proposed  to  be  put  here  as  a  constitutional  provision.  Some  members, 
at  least,  speak  as  if  they  have  forgotten  the  fact  that  we  already  have  in  Virginia  a 
Board  of  Agriculture.  I  have  taken  the  pains,  Mr.  Chairman,  to  provide  myself  with 
a  compilation  of  the  laws  of  the  State  relating  to  the  Agricultural  Department,  which 
I  hold  in  my  hand. 

The  present  Constitution,  very  wisely,  as  I  think,  leaves  this  matter  to  the  Gen- 
eral Assembly  of  Virginia,  and  the  General  Assembly  of  Virginia,  acting  in  its  wisdom, 
in  the  session  of  1887-1888,  did  pass  an  act  providing  for  a  Board  of  Agriculture  for 
the  State,  and  making  appropriations  therefor.  That  board  consists  of  ten  members. 
Its  duties  are  specified  here,  and  an  annual  appropriation  is  made,  so  that  as  to  the 
question  of  necessity  there  is  no  necessity  for  putting  in  the  Constitution  a  provision 
for  what  we  already  have  by  an  existing  statute  of  the  Commonwealth.  There  is  no 
need,  therefore,  for  the  first  paragraph  of  Section  1  of  the  report,  which  provides 
that  there  shall  be  a  Department  of  Agriculture.  If  we  did  not  have  that  in  the 
State,  if  there  were  no  disposition  on  the  part  of  the  General  Assembly  to  have  that 
board,  if  that  were  necessary  to  the  farming  interests  of  Virginia,  then  I  should 
vote  for  this  report. 


DEBATES  OF  THE  COXSTITUTIOXAL  C0NVENTI02sT  OF  VIRGINIA.  2079 

That  first  section  simply  makes  it  obligatory  upon  the  General  Assembly  to  do 
what  it  has  already  done,  and  the  General  Assembly  of  Virginia,  representing  the 
farming  interests  of  Virginia,  may  confidently  be  relied  upon  to  perpetuate  this  board. 
As  the  gentleman  from  Louisa  (Mr.  Gordon)  says,  if  the  farming  interests  of  the 
Commonwealth,  as  represented  in  the  General  Assembly,  do  not  want  the  board,  they 
may  get  rid  of  it,  whereas  if  you  put  it  in  the  Constitution  it  will  not  be  in  their 
power  to  do  so. 

Now,  as  for  that  part  of  the  report  beginning  with  line  14,  saying  that  the  powers 
and  duties  of  the  board  shall  be  prescribed  by  law.  That  is  in  the  language  sug- 
gested by  the  gentleman  from  Nottoway.  It  will  be  done  whether  this  provision  is  put 
in  or  not,  and  so  far  as  I  can  see,  the  only  new  thing  that  has  been  proposed  by  your 
committee  is  that  the  rector  of  the  Board  of  Visitors  and  the  president  of  the  Vir- 
ginia Polytechnic  institute  shall  be  members  ex-officio  of  the  Board  of  Agriculture 
and  Immigration.  I  do  not  know  that  they  have  peculiar  qualifications  for  that  office, 
and  I  should  feel  like  objecting  to  that  part  of  the  report  that  makes  the  president 
of  the  board  and  the  Commissioner  of  Agriculture  and  Immigration  members  ex-of- 
ficio  of  the  Board  of  Visitors  of  the  Virginia  Polytechnic  Institute. 

So  far  as  theory  is  concerned,  and  having  a  theoretical  man  upon  the  board,  tthere 
is  nothing  in  this  law  that  would  prevent  the  Governor  from  appointing  the  president 
of  the  Blacksburg  Institute  as  a  member  of  this  commission;  but  I  do  not  conceive 
that  there  is  any  necessity  for  that.  If  gentlemen  will  look  in  the  Code  of  Virginia 
they  will  find  a  most  excellent  act  there,  which  not  only  provides  for  a  Commissioner 
of  Agriculture  and  defines  his  appointment  and  his  term  and  fixes  his  bond,  but  pro- 
vides for  a  clerk,  chemist  and  geologist  for  the  preparation  of  hand-books,  the  testing 
of  fertilizers,  and  all  that  kind  of  thing,  and  I  believe  it  can  be  done  as  well  by  ex- 
isting institutions  as  it  could  by  a  new  board  that  is  suggested  by  the  report  of  the 
committee.  I  see  no  necessity  for  it.  I  do  see  some  objection  to  it.  There  is  a 
danger — and  I  will  make  the  remark  here  as  applicable  to  this  matter,  as  it  has  been 
applicable  to  matters  already  passed  upon,  and  I  believe  will  be  applicable  to  matters 
that  are  to  engage  the  future  attention  of  this  body — that  this  Convention  will  put  too 
much  legislation  in  the  organic  instrument  that  we  are  framing.  I,  for  one,  am 
opposed  to  that  principle,  and  I  would  leave  the  hands  of  the  General  Assembly  freer 
than  a  great  many  gentlemen  upon  this  fioor  are  disposed  to  do. 

I  therefore  heartily  approve  the  substitute  offered  by  the  gentleman  from  Notto- 
way, and  shall  give  it  my  vote. 

Mr.  Brown:  Mr.  Chairman,  I  dislike  to  prolong  the  discussion  on  this  matter, 
but  I  desire  to  advert  a  little  to  what  was  said  here  by  the  gentleman  from  Nottowaj 
(Mr.  Watson).  I  do  not  desire  to  enter  into  any  sectional  discussion.  I  do  not  pro- 
pose to  depart  from  the  subject  matter  of  the  clause  at  issue. 

As  I  understood  the  gentleman  from  Nottoway,  he  gave  two  reasons  for  offering 
his  resolution.  One  of  those  reasons  was  that  he  did  not  want  it  defined  in  the  Con- 
stitution that  the  Board  of  Agriculture  should  have  the  power  to  appoint  its  own 
officers;  and  another  reason  was  he  did  not  want  in  the  Constitution  any  provision 
for  the  association  of  experts  or  representatives  of  colleges  with  practical  farmers. 

I  simply  want  to  make  the  observation  which  wa^  so  ably  made  by  the  chairman 
of  the  committee  that  in  this  progressive  age,  if  there  is  one  way  in  which  the  farm- 
ers of  the  State  can  be  helped,  it  is  by  a  close  and  practical  association  between  those 
who  are  working  along  theoretical  lines  and  those  who  are  working  along  practical 
lines.  Speaking  of  the  Board  of  Agriculture,  which  is  to-day  the  subject  of  discus- 
sion, it  seems  to  me  the  provision  of  the  State  law  for  a  Board  of  Agriculture,  and 
the  way  in  which  it  can  carry  on  its  work  best,  is  not  only  upon  practical  lines,  but 
along  theoretical  lines.  Why  establish  a  farm  in  the  tobacco  section  for  the  purpose 
of  expert  determination  and  consideration  of  the  best  methods  of  growing  tobacco,  If 


3080  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  work  is  only  to  be  on  practical  lines?  Any  negro  can  raise  tobacco.  It  must 
develop  the  newer  and  more  progressive  methods.  Why  have  farmers'  institutes  all 
over  this  State,  conducted  by  the  Board  of  Agriculture,  where  you  have  not  only  prac- 
tical men,  but  experts?  Why  go  into  a  proposition  of  that  kind  if  it  is  not  well  to 
mingle  expert  opinion  and  theory  with  practical  knowledge? 

The  gentleman  from  Rockingham  county  (Mr.  Keezell)  told  me  only  a  night  or 
two  ago  that  until  they  iiad  one  of  those  institutes  in  Rockingham  county  they  had 
not  found  out  the  opportunities  for  practical  utilization  of  the  products  of  their 
farms,  in  the  way  of  the  establishment  of  creameries.  One  of  those  institutes  was 
conducted  there  by  the  Board  of  Agriculture,  in  which  there  were  addresses  by  practi- 
cal men,  who,  however,  associated  theories  with  practice.  The  result  was  the  estab- 
lishment of  a  creamery  that  is  bringing  thousands  of  dollars  into  the  county  of 
Rockingham. 

It  seems  to  me,  gentlemen,  that  the  report  of  your  committee  does  not  depart 
from  the  action  of  the  Legislature  in  the  past.  It  provides  for  a  Board  of  Agriculture 
exactly  as  created  by  the  Legislature  and  maintained  by  the  Legislature,  but  it  does 
make  more  easy,  more  perfect,  that  intercommingling  of  practice  and  theory  which 
must  be  the  sole  safeguard  and  the  sole  power  that  will  upbuild  the  v/hole  agricultural 
interests  of  the  State. 

I  hope  it  will  be  the  pleasure  of  the  committee  to  vote  down  the  substitute  offered 
by  the  gentleman  from  Nottoway,  and  to  support  the  committee  In  its  effort  to  unite 
theory  and  practice  with  a  progressive  Board  of  Agriculture  that  is  able  to  meet  these 
requirements  of  the  people  of  the  State. 

The  Chairman:  The  question  is  upon  the  substitute  to  Section  1  offered  by  the 
gentleman  from  Nottoway  (Mr.  Watson). 

Mr.  Mcllwaine:  Mr.  Chairman,  I  would  suggest  to  the  chairman  of  the  commit- 
tee that  the  Commissioner  of  Agriculture  ought  to  be  a  member  of  that  board. 

Mr.  Stuart:  In  reply  to  the  suggestion  of  the  gentleman,  I  wish  to  say  that  ques- 
tion was  asked  the  members  of  the  Agricultural  Board  who  appeared  before  our  com- 
mittee, and  if  I  mistake  not,  a  majority  of  them  were  of  opinion  that  the  commis- 
sioner should  not  be  a  member  of  the  board,  for  the  reason  that  they  frequently  have 
to  pass  upon  questions  relating  to  him  personally — his  expenditures  and  various  ques- 
tions of  a  delicate  nature  for  him  to  vote  upon,  as  well  as  upon  his  election. 

The  Chairman:  If  there  are  no  further  amendments  to  that  section,  the  Secretary 
will  read  Section  2  of  the  report: 

Section  2.  No  license,  tax,  nor  charge  of  any  kind  whatever,  shall  be  assessed 
against  or  collected  of  any  producer  of  farm  products,  for  the  right  to  sell  in  any 
part  of  the  State  the  products  which  he  has  raised. 

Mr.  Hatton:    Mr.  Chairman,  I  offer  the  following  amendment  to  that  section: 

Add  at  the  end  of  section  the  following:  "Provided,  that  nothing  herein  shall  pre- 
vent the  imposing  by  municipal  authority  of  the  same  charge  imposed  upon  other  per- 
sons for  the  occupation  of  any  place  specially  provided  or  reserved  for  the  sale  of  such 
products.'* 

Mr.  Chairman,  I  have  only  to  say  in  reference  to  that  amendment  that  I  trust  it 
will  be  acceptable  to  the  committee  as  I  have  offered  it.  The  language  of  the  section  Is 
suflSciently  broad  to  be  susceptible  of  a  construction  which,  in  my  judgment,  might  be 
hurtful  not  only  to  the  farmers,  but  to  the  cities  as  well,  and,  as  I  understand  it,  that 
section  is  embodied  in  this  report  in  order  to  protect  the  farmers  against  undue  license 
taxes  for  selling  their  products  through  the  streets  of  the  city  from  their  wagons. 
I  think  they  ought  to  be  protected  in  that,  but  at  the  same  time  it  might  be  susceptible 


DEBATES  OF  THE  COXSTITUTIOKAL  COXVEXTIOX  OE  YIEGIXIA.  2081 

Of  a  construction  that  would  prevent  the  cities  from  imposing  a  small  charge  for  the 
privilege  of  places  specially  provided  by  the  city  at  great  expense  for  the  sale  of  these 
products. 

It  might  also  be  construed  to  enable  a  farmer  to  open  a  store  in  a  city,  and  if  the 
sales  in  that  store  were  confined  to  his  own  products,  no  tax  could  be  levied  upon 
him.  It  would  therefore  bring  about  a  very  unequal  condition  of  trade  and  commerce 
in  the  cities.  The  amendment  which  I  have  prepared  I  think  does  justice  to  both 
sides,  and  I  hope,  therefore,  it  may  be  adopted. 

Mr.  Portlock:  Mr.  Chairman,  as  one  of  the  members  of  the  committee  that  sub- 
mitted this  report,  I  want  to  say  that  amendment  entirely  agrees  with  my  views  as  to 
what  should  be  accomplished  in  this  direction.  Y/hile  I  have  not  stated  any  reserva- 
tions in  express  terms,  every  member  of  our  committee  reserved  the  right  to  object 
to  any  part  of  the  report  or  to  add  any  amendment  that  he  might  see  proper  when  the 
report  was  brought  up. 

When  the  matter  was  discussed  in  the  committee  I  objected,  and  I  object  now, 
to  this  section  remaining  in  its  present  shape.  I  make  this  objection  in  the  inter- 
ests of  the  farmers  alone.  .  I  am  not  considering  any  questions  as  to  the  rights  of  the 
cities  to  collect  license  taxes  or  any  other  taxes  from  the  farmers.  I  think  it  is  abso- 
lutely proper  that  they  should  be  protected  to  the  extent  to  which  this  section  now 
goes,  and  I  think  they  should  be  further  protected  by  the  amendment  offered  by  the 
gentleman  from  Portsmouth.  That  is  to  say,  they  should  be  protected  against  any 
license  tax  or  charge  of  any  kind  in  the  sale  of  farm  products  grown  by  themselves. 

But  the  effect  of  this  section,  standing  as  it  does,  without  the  amendment  offered 
by  the  gentleman  from  Portsmouth,  would,  in  my  opinion,  as  I  stated  before  the 
standing  committee,  and  as  I  desire  to  state  before  this  committee,  have  the  effect  or 
tendency  of  depriving  the  farmers  of  the  right  to  come  into  the  market  places  of 
cities  and  use  the  particular  streets  usually  set  apart  for  the  sale  of  their  goods,  in 
the  event  that  the  cities  could  not  charge  them  the  usual  fees  which  are  necessary 
in  order  to  keep  the  market  places  and  the  streets  in  a  clean  condition,  which  fees 
ought  to  go  into  the  general  fund  for  the  police  regulations  of  the  city. 

I  know  in  the  city  of  Norfolk,  for  instance,  the  most  desirable  location  in  the 
city  for  the  sale  of  the  products  is  around  the  markets,  and  the  principal  streets  are 
set  apart  for  market  purposes  for  the  farmers  of  the  surrounding  country.  The  city 
collects  a  small  fee  from  the  farmers  for  the  privilege  of  using  the  street  in  order  to 
keep  the  streets  in  proper  order  for  .their  use.  But  if  the  city  of  Norfolk  and  other 
cities  of  this  State  are  deprived  of  the  right  to  collect  a  small  fee,  such  as  may  be 
prescribed  by  the  city  ordinance,  for  police  regulations  and  for  cleaning  the  streets 
and  market  places  of  the  cities,  then  the  cities  would  have  to  say  to  the  farmers, 
"If  we  cannot  make  these  small  charges^  you  cannot  occupy  our  streets."  It  goes 
without  saying  that  every  city  has  a  right  to  prevent  market  carts  occupying  perma- 
nently any  particular  places  along  its  streets.  The  public  highwaj"^  are  places  which 
are  designated  under  the  law  for  the  purpose  of  travel,  and  not  for  the  purpose  of 
stopping  and  using  any  portion  of  them  for  traffic  and  commercial  purposes.  They 
are  not  so  designated  under  the  general  principles  of  the  law. 

But  often  the  cities  see  fit  to  invade  that  principle  by  provisions  in  their  city 
ordinances  allowing  the  producers  of  farm  products  to  sell  their  goods  upon  the 
streets,  and  especially  at  the  places  designated  for  such  purposes;  and  the  farmer 
himself  would  suffer  if  the  cities  were  deprived  of  the  right  of  charging  small  fees 
for  these  privileges.  It  is  in  the  interest  of  the  farmer  that  I  think  the  cities  should 
be  allowed  this  right.  It  is  in  the  interest  of  the  farmer  that  he  should  occupy  these 
streets,  that  he  should  occupy  a  favorable  location  in  the  market  places,  which  he 
could  easily  be  deprived  of  by  city  ordinances,  if  the  city  were  not  allowed  to  charge 
him  such  fees  as  would  enable  these  places  to  be  kept  in  proper  condition.    The  farmer 


2082  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

would  be  thus  deprived  of  the  right  to  use  such  streets  as  might  otherwise  be  desig- 
nated for  that  purpose,  and  he  would  in  the  end  be  the  sufferer. 

For  that  reason  I  hope  the  amendment  offered  by  the  gentleman  from  Portsmouth 
may  be  adopted  by  this  committee,  as  I  said  before,  in  the  interests  of  the  farmer, 
and  with  no  reference,  so  far,  at  least,  as  I  am  concerned,  as  a  member  of  the  com- 
mittee, to  the  rights  and  privileges  of  the  cities. 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  gentleman, 
from  Portsmouth  (Mr.  Hunton). 

The  amendment  was  rejected. 

Mr.  Keezell,:    Now,  Mr.  Chairman,  I  move  to  strike  out  the  whole  section. 
On  motion  of  Mr.  Stuart,  the  committee  rose  and  the  President  resumed  the  chair. 
Mr.  William  A.  Anderson:     Mr.  President,  I  offer  the  following  resolution  and 
ask  its  immediate  consideration: 

Resolved,  That  the  Committee  on  Final  Revision  and  Adjustment  of  the  Various 
Provisions  of  the  Constitution  that  may  be  agreed  upon,  and  upon  the  schedule,  be  in- 
creased by  the  addition  of  two  members,  to  be  appointed  by  the  President  of  the  Con- 
vention. 

Mr.  President,  the  enlargement  of  this  committee  has  become  important  by  reason 
of  the  necessary  absence  of  two  or  three  members,  so  that  it  is  very  diflacult  to  get  a 
quorum  of  the  committee.  In  addition  to  that  it  is  necessary  that  all  of  the  important 
committees  which  have  reported  articles  in  the  Constitution  shall  be  represented  upon 
that  committee,  and  one  or  two  of  the  standing  committees  of  the  Convention  are  not 
represented  upon  it.  I  do  not  suppose  there  can  be  any  objection  to  the  enlargement 
of  this  committee  by  the  addition  of  two  members,  and  I  ask  for  immediate  consid- 
eration of  the  resolution,  and  its  adoption. 

The  resolution  was  agreed  to. 

On  motion  of  Mr.  Thomas  H.  Barnes,  the  Convention  adjourned  until  to-morrow, 
Friday,  January  31,  1902,  at  10  o'clock  A.  M. 


FRIDAY,  JANUARY  31,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  L.  B.  Betty,  D.  D. 

The  President:  Under  a  resolution  which  was  adopted  yesterday,  the  Chair  appoints 
Mr.  Meredith  and  Mr.  "Watson  members  of  the  Committee  on  Final  Revision  and 
Adjustment. 

On  motion  of  Mr.  Stuart,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Agriculture, 
Industrial  and  Manufacturing  Interests  and  Immigration,  Mr.  Glass  in  the  chair. 

The  Chairman:  The  report  of  the  Committee  on  Agriculture,  Industrial  and  Manu- 
facturing Interests  and  Immigration  is  now  before  the  Committee  of  the  Whole.  The 
question  is  upon  Section  2  of  the  report. 

Mr.  Stuart:  Mr.  Chairman  and  gentlemen  of  the  committee,  since  the  committee 
rose  yesterday,  the  subject  treated  of  in  section  2  has  been  referred  to  a  number  of 
persons  representing  the  special  interests  sought  to  be  protected.  There  is  a  variety  of 
opinions  as  to  what  the  exact  language  to  be  employed  should  be.  We  find  there  is  a 
statute  which  has  been  highly  satisfactory,  as  I  understand,  to  a  great  many  persons — 
possibly  not  entirely  so  to  others — and  representing  to  some  extent  ,at  least,  agricultural 
sentiment,  as  well  as  other  interests,  on  this  committee.  It  occurred  to  some  of  the 
members  of  the  committee  that  it  would  not  be  prudent  to  curtail  the  privileges  already 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIMA. 


20b3- 


accorded  to  the  producers  of  agricultural  and  domestic  products  by  any  action  of  this 
body,  and  certainly  not  by  the  recommendation  of  this  committee.  Our  investigation 
has  brought  us  to  the  full  realization  of  the  fact  that  this  is  a  very  difficult  subject  to 
deal  with  by  words  and  terms.  I  therefore  present  section  2  slightly  amended  so  as  to 
conform  in  its  provisions  absolutely  to  the  present  statute.  It  makes  constitutional  that 
which  is  now  statutory,  the  naked  question  for  the  consideration  of  this  body  being 
whether  or  not  this  statutory  provision  shall  be  made  a  constitutional  provision.  In  other 
words,  the  question  is  whether  or  not  the  rights  fixed  here  shall  be  made  permanent  in 
the  Constitution.  I  must  confess  to  some  hesitation  in  giving  my  unqualified  approval 
to  making  a  provision  of  this  character  a  constitutional  one,  owing  to  the  delicacy  of  the 
subject.  There  is  a  difficulty  of  defining  by  language  the  limits  within  which  these 
products  may  or  may  not  be  sold,  or  the  kind  of  taxes  that  may  or  may  not  be  imposed. 
It  seems  to  some  members  of  the  committee,  and  to  some  members  of  the  Convention, 
that  it  might  be  better  left  to  be  adjusted  from  time  to  time  by  statutory  amendment 
to  the  changing  conditions  and  changing  wants.  I  therefore  submit  Section  2  amended  so 
as  to  conform  in  exact  terms  to  our  present  statute  on  this  subject,  and  present  the 
naked  question  as  to  whether  or  not  this  statutory  provision  shall  be  made  a  constitutional 
provision. 

As  we  have  amended  the  section,  it  now  reads: 

No  license  tax  or  charge  of  any  kind  whatever  shall  be  assessed  against  or  col- 
lected of  any  producer  of  farm  or  domestic  products  by  any  city  or  town  in  this  State, 
or  by  any  agent  or  officer  of  any  such  city  or  town  for  selling  his  farm  and  domestic 
products  within  the  limits  of  such  town  or  city  outside  of  and  not  within  the  regular 
market  house  and  sheds  of  such  cities  and  towns. 

That,  as  I  understand  it,  simply  makes  perpetual  a  provision  already  statutory. 

The  Chairman:  If  there  is  no  objection,  the  substitute  proposed  by  the  Chairman  of 
the  committee  will  be  accepted  by  the  Committee  of  the  Whole  as  Section  2  of  the  report. 

Mr.  Parks:  Mr.  Chairman,  I  desire  to  call  the  attention  of  the  chairman  of  the 
committee  to  one  point  that  may  not  be  properly  guarded  by  the  language.  The  object, 
as  I  understand,  is  to  prevent  any  charge  of  license  or  tax  against  the  farmer  for  the  sale 
of  domestic  products  produced  by  him.  How  would  that  language  be  construed?  If 
a  man  purchases  farm  or  domestic  products,  they  are  his  just  as  much  as  if  he  raises 
them.  The  reason  I  call  attention  to  that  is  that  I  have  seen  instances  of  this  sort 
where  a  man  has  a  small  farm  and  raises  fruits  and  other  products  and  sells  them  on 
the  market.  He  is  not  liable  to  any  charge,  of  course,  and  he  will  go  around  and  buy 
all  he  can  from  other  people  and  sell  them  the  same  way  he  sells  his  own,  claiming 
he  has  raised  them,  when  in  fact  he  has  not  raised  them  at  all.  It  seems  to  me  the 
language  ought  to  be  guarded,  and  I  suggest  that  it  should  read,  farm  or  domestic  pro- 
ducts produced  by  him." 

Mr.  Meredith:  Mr.  Chairman,  before  the  vote  is  taken  on  that  I  thinK:  we  ought 
to  explain  the  circumstances  that  surround  the  municipalities  in  matters  of  this  kind. 
My  impression  is  that  that  statute  was  dravs-n  owing  to  a  dispute  that  grew  up  at  the 
time  between  the  city  of  Richmond  and  some  of  the  producers  of  farm  produce  around 
this  city;  and  after  it  was  drawn  the  result  was  found  to  be  so  injurious  to  the  farmers 
that  they  had  to  come  and  ask  the  city  council  to  pass  an  ordinance  allowing  them 
to  be  taxed  along  with  the  renters  of  the  stalls,  a  ten-cent  tax  instead  of  an  annual 
or  monthly  tax,  in  order  that  they  might  sell  at  the  market.  You  see,  you  may  have 
the  right  to  sell  your  produce  as  long  as  you  are  moving.  You  can  go  up  and  down  the 
streets  and  sell  under  that  statute,  but  just  as  soon  as  you  stop  your  cart  and  undertake 
to  make  a  stand  of  it,  you  are  then  met  by  the  police  power  of  the  municipality.  That 
was  where  the  burden  bore  upon  them.'  The  statute  said  that  no  tax  should  be  imposed 
upon  them  for  selling  in  the  market  sheds  or  market-houses.  Now,  gentlemen,  you  may 
not  be  familiar  with  some  of  these  things,  but  you  take  the  markets  of  the  city  of 


3084 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGIN 


Richmond  and  they  expand  according  to  the  season.  Of  course,  we  could  not  have  a 
couple  of  squares  that  would  cover  everybody  at  all  times,  because  the  expenses  would 
be  too  enormous.  We  would  have  to  reserve  a  valuable  tract  of  land  and  costly  houses 
Therefore  we  have  sufficient  houses  for  the  long  seasons,  the  fall,  the  winter  and  the 
early  spring,  and  they  accommodate  most  of  the  people  who  desire  to  sell-  but  when 
the  summer  season  comes  on  the  amount  of  produce  is  so  great  on  account  of  green 
vegetables,  that  the  number  of  carts  that  come  into  town  cannot  be  accommodated  in 
those  sheds  and  market  houses. 

Therefore,  for  the  purpose  of  accommodating  the  public  as  well  as  allowing  these 
persons  to  have  the  farm  products  to  sell  we  allow  them  to  sell  within  certain  streets, 
Y/ithin  a  space  of  two  hundred  yards  around  these  market  houses;  and  some  of  those 
places  are  more  valuable  even  than  the  sheds  in  the  markets,  because  they  are  nearest 
the  point  of  approach  of  the  purchasers  of  those  goods.  The  farmers  are  perfectly 
willing  to  pay  for  that  privilege.  It  is  a  small  charge,  either  a  weekly  or  a  daily  charge, 
for  the  purpose  of  paying  for  the  cleaning  up  of  the  market.  The  statute  does  not 
authorize  a  man  to  come  and  sell  as  he  wants  to  sell— that  is,  to  take  out  his  mule  and 
back  his  wagon  up  to  the  sidewalk  anywhere.  You  can  imagine  that  power  would  not 
be  given,  because  if  it  were  they  might  do  it  in  front  of  St.  Paul's  church  or  in  front 
of  the  Jefferson  Hotel,  or  places  of  that  kind,  which,  of  course,  no  one  contemplates 
allowing  to  be  done.  Therefore  I  say  the  language  of  the  statute  is  not  as  fair  to  the 
producer  of  these  farm  products  as  the  proposed  language  of  the  Committee  on  Agri- 
culture and  Immigration.  The  language  of  the  committee  is  better,  for  the  reason  that 
there  are  two  classes  of  tax  that  you  desire  to  avoid.  One  is  the  tax  on  peddling. 
That  is  the  one  they  object  to  most,  and  that  is  the  one  that  created  the  difficulty. 
If  the  statute  had  been  so  drawn  as  to  allow  them  to  sell  by  peddling,  there  would  have 
been  no  difficulty,  but  it  undertook  not  only  to  do  not,  but  to  say  that  they  should  not  be 
charged  for  selling  anywhere  except  in  the  market  shed  or  market  houses,  which  confined 
the  charges  of  the  city  to  those  structures.  That  was  a  limitation  upon  them  which  was 
injurious,  and,  as  I  say,  they  had  to  come  and  ask  that  the  provisions  of  that  statute 
should  not  be  applied  to  them. 

Now,  gentlemen,  under  such  circumstances,  desiring  as  you  do  to  benefit  the  farmer, 
I  am  perfectly  willing  to  meet  you  half  way  in  the  matter  and  say  there  shall  not  be 
any  vending  tax  put  upon  them,  but  when  they  come  to  back  up  and  make  a  market  of 
their  own,  as  it  were,  in  the  city,  it  is  violating  a  police  power  which  no  one 
would  think  of  permitting.  I  suggest  that  you  let  the  language  of  this  provision  in  the 
committee's  report  stand  with  the  amendment  that  I  submitted  to  a  gentleman  who 
has  had  experience  in  matters  of  this  kind  and  who  represents  a  country  constituency. 
I  allude  to  the  gentleman  from  Henrico  (Mr.  Waddill).  If  you  adopt  this  language 
you  will  give  them  better  protection  than  the  statute  gives  them,  and  at  the  same  time 
will  allow  the  cities  to  extend  their  limits  according  to  the  necessities  of  the  truckers 
as  they  come  in. 

It  is  not  desired  by  us  that  you  should  keep  out  the  truckers'.  There  are  two 
classes  of  people  in  the  markets,  those  who  are  called  hucksters,  who  buy  from  the 
truckers,  and  the  truckers  themselves.  The  hucksters  go  out  a  half  mile  from  town 
and  buy  their  goods  from  the  truckers,  and  they  will  go  over  the  streets  in  their 
wagons  and  represent  themselves  as  having  raised  the  produce  they  sell,  and  it  often 
turns  out  they  have  simply  purchased  them.  It  is  absolutely  impossible  to  tell  whether 
they  have  done  so  or  not.  They  come  with  their  country  wagons,  dressed  up  as  if  they 
had  been  ploughing,  in  order  to  induce  people  to  believe  that  the  truck  is  particularly 
fresh.  All  those  dodges  are  indulged  in,  and  you  cannot  trace  things  of  that  kind. 
Therefore  I  claim  you  cannot  prevent,  by  simple  language,  a  distinction  you  cannot 
draw  in  actual  life. 

In  addition  to  that,  you  are  putting  a  burden  upon  these  men  by  confining  the  tax 
upon  them  to  the  shed  or  structure.    If  you  use  language  like  this,  which  will  be  broad 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2085 


enough  to  protect  them,  and  at  the  same  time  encourage  them  to  come  into  the  city,  it  is 
language  that  I  believe  is  agreeable  to  the  gentleman  from  Henrico  (Mr.  Waddill),  who, 
as  I  have  said,  has  had  experience  in  these  matters  and  represents  country  constituents. 

Add  after  the  language  of  the  committee's  report  these  words — and  this  is  very 
much  in  the  line  of  thought  offered  by  the  gentleman  from  Portsmouth  (Mr.  Hatton). 
There  is  very  little  change  in  it,  and  I  ask  his  attention,  to  see  whether  it  is  agree- 
able to  him:  "Provided,  that  nothing  herein  shall  prevent  the  imposition  by  municipal 
authority  of  the  same  charge  imposed  upon  other  persons  for  the  occupation  of  any 
space  specially  provided  or  reserved  for  the  sale  of  such  products." 

As  I  tell  you,  that  space  has  to  contract  or  extend  according  to  the  season  of  the 
year.  Therefore,  to  designate  the  market  houses  and  sheds  would  be  confining  the 
men  to  a  space  they  do  not  want  to  be  in.  because  they  would  be  subjected  to  a  monthly 
or  annual  charge,  if  they  rent  a  stall.  I  cannot  see  any  objection  to  putting  upon  them 
the  same  charge  for  the  space  they  occupy,  which  is  frequently  more  valuable  than 
the  space  in  the  market  itself.  You  give  them  protection  against  the  peddler's  tax,  and 
at  the  same  time  you  allov.'  the  imposition  of  the  same  charge  upon  them,  which  is 
really  nothing  but  such  a  charge  as  would  be  necessary  to  keep  the  market  clean.  The 
city  does  not  want  to  make  any  money  out  of  the  market,  but  she  wants  to  have  a  space 
where  she  can  gather  the  sellers,  as  well  as  the  buyers.  That  is  the  object  of  a  market. 
Therefore,  I  say  that  unless  you  will  change  the  language  offered  by  the  chairman  of  the 
committee,  which  is  really  the  language  of  the  statute  which  has  been  found  to  be 
injurious,  you  will  be  putting  in  the  organic  law  language  which  has  been  found  unsatis- 
factory and  injurious  to  the  very  people  you  propose  to  protect.  That  is  our  actual 
experience. 

I  repeat  I  think  they  ought  to  be  protected  from  the  peddler's  tax,  but  as  to  the 
other  charge,  it  is  fair,  and  should  be  put  upon  them,  and  they  desire  it.  What  will 
be  the  result  if  you  do  not  do  it?  You  will  simply  say  that  no  man  shall  back  up  his 
cart,  take  out  his  mule  and  sell  his  produce  unless  he  shall  deposit  ten  cents  for 
cle-aning  the  space. 

Mr.  Quarles:  Do  you  not  think  a  matter  of  this  kind  ought  to  be  left  with  the 
General  Assembly  to  deal  with? 

Mr.  Meredith:    I  think  so  myself.    I  think  that  is  the  wiser  course  to  pursue. 

The  Chairman:  The  question  is  upon  the  motion  of  the  gentleman  from  Rock- 
ingham (Mr.  Keezell)  to  strike  out  Section  2. 

The  motion  wa-s  agreed  to. 

The  Chairman:    The  secretary  will  read  section  3  of  the  report. 

Section  3.  Counties  cities,  and  towns  shall  have  the  power  to  exempt  from  local 
taxation,  for  a  period  of  not  more  than  five  years,  manufacturing  enterprises  to  be 
established  therein:  provided,  there  is  no  other  enterprise  of  a  like  nature  already 
established  in  such  county,  city,  or  town  that  is  not  exempt  from  local  taxation. 

Mr.  Wise:    Mr.  Chairman.  I  move  to  strike  out  that  section. 

Mr.  Stuart:  I  beg  to  say,  sir,  that  this  section  was  purely  in  the  nature  of  recom- 
mendation, and  the  chairman  of  the  committee  was  instructed,  by  the  unanimous  vote 
of  the  committee,  to  present  it  simply  as  a  recommendation.  The  section  itself,  however, 
was  not  passed  by  unanimous  vote,  even  as  a  recommendation,  it  having  been  dissented 
from  by  four  members,  whose  names  appear.  However,  this  was  in  the  nature  of  a 
recommendation,  much  as  the  recommendations  from  the  Committee  on  the  Reduction 
of  Expenditures,  etc.,  and  being  recommended  to  the  finance  Committee,  the  chairman 
presented  it  to  that  committee  for  its  action.  The  Finance  Committee,  having  con- 
sidered it.  reported  adversely  on  it.  which  I  presume  terminates  the  connection  of  this 
committee  with  that  subject.  I  am  not  able  to  state  just  what  would  be  the  parliamentary 
status  in  this  case.    Certainly  the  action  of  the  committee  has  been  correctly  stated.  It 


,2086 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


did  not  assume  to  be  able  to  embody  sucli  a  section  in  its- own  report  in  the  Constitu- 
tion, but  simply  to  present  it  by  way  of  recommendation  as  to  the  industrial  interests 
of  the  State. 

Mr.  James  W.  Gordon:    Mr.  Chairman,  I  think  this  will  cover  the  point: 

Resolved,  That  the  Committee  of  the  Whole  requests  the  Convention  to  relieve 
them  from  the  further  consideration  of  Section  3  and  refer  that  section  to  the  Com- 
mittee of  the  Whole  for  consideration  as  an  independent  section,  in  connection  with 
the  report  of  the  Committee  on  Taxation  and  Finance. 

The  substitute  was  rejected. 

The  Chairman:    The  question  is  upon  the  motion  of  the  gentleman  from  Rich- 
mond city  (Mr.  Wise)  to  strike  out  section  3. 
The  motion  was  agreed  to. 

Mr.  Stuart:  Mr.  Chairman,  the  report  of  the  committee  having  been  acted  on,  I  now 
move  that  the  committee  rise. 

The  motion  was  agreed  to,  and  the  committee  rose. 

The  President  having  resumed  the  chair,  Mr.  Glass  reported  that  the  Committee 
of  the  Whole  had  completed  the  consideration  of  the  report  of  the  Committee  on 
Agriculture,  Industrial  and  Manufacturing  Interests,  and  Immigration,  and  had  directed 
him  to  report  it  back  to  the  Convention,  with  amendments. 

ORDEE   OF  BUSINESS. 

Mr.  Braxton:  Mr.  President,  I  move  that  the  consideration  of  the  Committee  on 
Corporations  be  made  the  special  and  continuing  order  for  Tuesday  morning  next  at 
half-past  10  o'clock,  and  I  hope  it  will  be  the  pleasure  of  the  Convention  to  adopt  that 
motion. 

The  motion  was  agreed  to. 

Mr.  Stuart:  Mr.  President,  in  consideration  of  the  brevity  of  the  report  which 
has  just  been  acted  upon  by  Committee  of  the  Whole,  it  occurs  to  the  chairman  and  to 
some  of  the  other  members  of  the  committee  that  it  might  be  feasible  to  enter  upon 
the  consideration  of  that  report  in  the  Convention  without  waiting  for  the  printing  of 
the  report.  That  course  seems  to  be  the  proper  one  in  view  of  the  fact  that  at  this 
time  the  convention  is  in  a  position  to  consider  the  report,  there  being  practically 
nothing  else  pressing  upon  the  attention  of  the  Convention.  I  therefore  move  that  the 
report  of  the  Committee  of  the  Whole  just  adopted  be  now  considered  by  the  Convention. 

The  motion  was  agreed  to. 

The  President:    The  secretary  will  read  the  first  section. 

Section  1.  There  shall  be  a  Bureau  of  Agriculture  and  Immigration,  which  shall 
be  under  the  management  and  control  of  a  Board  of  Agriculture  and  Immigration, 
composed  of  one  member  from  each  congressional  district  in  the  State,  who  shall  be  a 
practical  farmer,  appointed  by  the  Governor,  subject  to  the  confirmation  of  the  Senate, 
for  a  term  of  four  years,  except  that  the  members  first  appointed  after  the  adoption 
of  this  Constitution  from  the  odd-numbered  congressional  districts  shall  hold  office 
for  two  years.  There  shall  be  a  Commissioner  of  Agriculture  and  Immigration,  whose 
term  of  office  shall  be  four  years. 

The  President  of  the  Virginia  Polytechnic  Institute  shall  be  a  member  ex-officio 
of  the  Board  of  Agriculture  and  Immigration. 

The  General  Assembly  may,  in  its  discretion,  add  other  members  to  the  said  board. 

The  powers  and  duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by 
law:  provided,  that  the  Department  of  Agriculture  and  Immigration  shall  be  main- 
tained permanently  at  the  Capital  of  the  State,  with  power  to  establish  and  maintain 
branches  to  be  located  elsewhere,  and  shall  elect  and  have  power  to  remove  its  officers, 
including  a  Commissioner  of  Agriculture  and  Immigration. 

The  President  of  the  Board  of  Agriculture  and  Immigration  shall  be  a  member 
'€x-offcio  of  the  Board  of  Visitors  of  the  Virginia  Polytechnic  Institute. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIEGIXIA. 


2087 


Mr.  Eggleston:    After  tlie  words  "term  of  office  shall  be  four  years"  I  move  to 

add  the  words,  '"'and  who  shall  be  a  member  of  the  board,  and  ex-o-lficiG  its  president." 
That  part  of  the  section  would  then  read:  "And  there  shall  be  a  Commissioner  of 
Agriculture  and  Immigration,  whose  term  of  office  shall  be  four  years,  and  who  shall 
be  a  member  of  said  board,  and  ex-officio  its  president." 

Mr.  President,  it  seems  to  me  that  certainly  the  head  of  this  department,  which 
we  regard  as  an  important  one  in  the  State  of  Virginia — and  it  has  been  growing,  and  its 
importance  has  been  increasing  year  after  year — the  man  vs-hom  the  people  hold  responsi- 
ble for  its  success  or  its  failure  should  certainly  be  something  more  than  a  mere  clerk 
of  a  board,  responsible  to  nobody.  That  is  the  state  of  the  case  as  this  report  comes 
from  the  Committee  of  the  ^Tiole.  The  people  look  upon  this  commissioner  as  the  head 
of  this  department.  They  hold  him  responsible.  If  it  is  a  failure,  he  is  the  man  who  Is 
responsible  for  it,,  not  a  board  appointed  by  the  Governor,  responsible  to  nobody,  a 
constantly  shifting,  changing  board,  but  the  commissioner,  who  is  a  salaried  officer. 

Unless  yoti  adopt  this  provision  you  vrill  have  a  department  that  will  be  absolutely 
without  any  head,  and  how  can  you  expect  any  success  from  it?  If  anything  goes  wrong 
the  commissioner  can  say,  "  Why,  I  am  nothing  but  the  clerk  of  the  board."  Then  when 
you  go  after  the  board  of  directors  they  are  not  responsible  to  anybody.  They  are  not 
salaried  officers.  They  hold  honorary  positions.  They  are  expected  to  meet  once  in 
three  or  four  months  to  supervise  and  regulate  the  proceedings  of  this  bureau.  You 
want  a  head  to  the  bureau,  and  unless  you  have  one,  it  is  going  to  be  an  absolute  failure. 

It  does  seem  to  me,  ^Ir.  President,  that  in  this  important  bureau  established 
by  the  Convention  we  ought  to  be  careful  and  put  an  absolute  responsibility  somewhere, 
so  that  the  people  can  hold  somebody  responsible  for  its  failure.  More  than  that,  sir, 
from  the  tax  on  fertilizer  tags,  as  established  by  law  at  present,  there  will  go  into  the 
hands  of  this  department  about  ?30,000  a  year.  Unless  you  put  a  responsible  head  here, 
there  will  be  absolutely  nobody  accountable  for  it.  You  cannot  hold  the  board  respon- 
sible, as  they  do  nothing  more  than  direct  the  department.  It  does  seem  to  me  that 
the  whole  report  ought  to  be  wiped  out,  or  that  we  ought  to  put  somebody  at  the  head 
of  the  bureau  who  will  be  directly  responsible  to  the  authorities  of  the  State,  and  who 
can  be  held  accountable  for  the  expenditure  of  this  $30,000  collected  as  a  tax  on  fertilizer 
tags. 

Mr.  Stuart:  Mr.  President,  I  am  very  much  surprised  that  a  gentleman  of  such 
legislative  knowledge  and  experience,  and  a  man  of  such  usually  sound  views,  should 
have  presented  a  proposition  which  carries  on  its  face  as  much  sophistry  as  the  one  he 
has  just  presented.  He  says  the  Agricultural  Department,  under  our  report,  has  no  head. 
Then  he  says  that  ten  men  appointed  by  the  Governor,  and  the  President  of  the  Poly- 
technic Institute,  and  the  President  of  the  Board  of  Agriculture,  constituting  a  board  of 
twelve,  are  not  capable  of  electing  a  head  who  can  render  an  account  of  their  steward- 
ship to  the  people  of  the  State.  That  would  be  a  very  remarkable  fact,  that  the  Governor 
should  find  ten  men  who,  with  the  heads  of  these  two  departments  constituting  such  a 
board,  would  not  be  able  properly  to  discharge  their  responsibilities  to  the  people. 

We  had  the  members  of  the  Agricultural  Board  before  our  committee,  and  the 
fact  is  the  proposition  to  make  the  commissioner  president  of  the  board  was  never 
considered,  but  most  of  them  made  the  positive  statement  that  they  did  not  want  him 
to  be  even  a  member  ex-officio  of  the  board,  for  the  reason  that  they  would  be  constantly 
passing  upon  his  business  transactions,  auditing  his  accounts,  going  into  matters  personal 
TO  him,  and  passing  on  questions  affecting  his  salary  or  the  salaiy  of  his  subordinates, 
or  the  justification  of  this  or  that  expense  of  the  department;  and  it  would  be  embar- 
rassing for  the  board  to  have  him  present  as  a  member. 

I  think  I  can  call  as  evidence  of  that  statement  made  by  the  board  at  least  half  a 
dozen  members  of  our  committe  who  are  now  present.  If  they  objected  to  his  membership 
on  the  board,  ex-officio,  it  does  seem  to  me  they  would  object  very  much  more  to  his 
being  president  of  the  board:  and  if  we  are  to  have  a  president  ex-officio,  what  is  the 


2088 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


president  of  the  board  to  do?  What  are  to  be  the  powers  of  the  board  if  the  president 
of  that  board  and  the  executive  officer  of  it  are  named  in  this  report?  The  construction 
of  the  board  is  just  as  it  should  be.  It  has  had  the  mature  consideration  of  this  com- 
mittee. It  is  the  result  of  consultation  over  and  over  again  with  the  members  of  the 
board.  It  meets  the  approval  of  a  majority  of  them;  and  I  have  a  letter  from  the 
present  president  of  that  board  endorsing  it.  so  that  it  does  seem  to  me  there  is 
absolutely  nothing  whatever  in  the  view  presented  by  the  gentleman  from  Charlotte. 
I  beg  of  the  Convention  that  they  will  not  hear  to  any  such  proposition,  because  it  will 
be  fatal  to  the  effectiveness  of  the  organization  we  have  brought  to  your  attention. 

Mr.  Mcllwaine:  Mr.  President,  it  may  Sieem  a  little  strange  to  the  gentlemen  of 
the  Convention  that  I  feel  so  deep  an  interst  in  this  subject;  but,  sir,  I  have  lived 
in  the  country  for  more  than  half  of  my  life.  I  am  now  the  representative  of  a  country 
constituency,  and  I  know  the  needs  of  my  people.  While  this  is  true,  I  have  been  con- 
nected with  boards  for  the  last  twenty  years,  and  am  now,  and  I  know  something  of 
what  is  necessary  to  make  an  officer  of  those  boards  efficient.  B'esides,  sir,  this  Con- 
vention has  already,  in  another  one  of  the  departments  of  government,  passed  upon 
this  question,  and  has  enacted  into  its  fundamental  law  the  very  principle  and  practice 
which  are  enunciated  in  the  resolution  of  the  gentleman  from  Charlotte  (Mr.  Eggleston). 

Under  the  report  of  the  Committee  on  Education,  the  Superintendent  of  Public 
Instruction  is  made  a  member  of  the  Board  of  Public  Instruction,  and  is  ex-officio  made 
its  president.  There  he  has  a  commanding  position.  There  he  is  looked  to  by  the 
people  of  Virginia  for  the  progress,  the  advancement,  the  direction  and  the  furtherance  of 
all  the  interests  committed  to  his  charge. 

Mr.  Stuart:  You  are  seeking  to  draw  a  parallel.  I  should  like  to  ask  you  if  the 
Superintendent  of  Public  Instruction  is  elected  by  a  board?  It  seems  to  me  there  is  no 
parallel  in  the  two  cases.    He  is  elected  by  the  people  under  the  present  Constitution. 

Mr.  Mcllwaine:  I  am  going  on  to  that  point  directly.  It  seems  to  me,  Mr.  President, 
to  be  fundamental  that  if  you  want  this  department,  which  has  been  created  as  a  depart- 
ment to  be  of  any  service  to  the  people  of  the  State  of  Virginia,  you  should  endow 
its  executive  officer  with  the  position  and  the  authority  which  is  necessary  for  him 
to  exercise  the  duties  which  are  laid  upon  him.  In  other  words,  sir,  it  may  be  expressed 
in  this  way:  That  duty,  in  order  to  be  performed,  must  presuppose  the  power  on  the 
part  of  the  man  on  whom  the  obligation  rests  to  perform  the  duty.  You  are  putting 
necessarily  a  high  responsibility  upon  this  man.  Then  give  him  the  position  and 
endow  him  with  the  authority  which  will  enable  him  to  fulfill  the  position. 

The  only  objection  I  have  heard  is  the  one  urged  jxist  now  by  the  gentleman  from 
Russell  (Mr.  Stuart),  and  that  is  that,  according  to  present  enactment,  as  it  has  come 
into  the  Convention  from  the  Committee  of  the  Whole,  the  Commissioner  of  Agriculture 
is  to  be  elected  by  the  people.  Why,  sir,  if  necessary,  have  him  elected  by  the  people, 
or  have  him  elected  by  the  General  Assembly,  by  all  means.  I  do  not  consider  this 
an  insuperable  objection.  I  am  a  member  of  the  Board  of  Trustees  of  Hampden-Sydney. 
I  am  the  president  of  that  college,  and  still  I  was  elected  by  that  board.  I  was  for 
years  the  secretary  of  missions  of  the  Southern  Presbyterian  Church.  I  was  a  member 
of  that  board.  At  the  same  time  I  was  its  treasurer  and  handled  $100,000  of  money  every 
year,  and  there  was  no  trouble  about  the  auditing  of  my  accounts,  about  the  holding 
of  me  to  a  responsibility:  but  I  had  such  a  position  that  when  that  board  met  from 
month  to  month  I  was  expected  to  take  the  lead  and  to  make  suggestions  to  them  of 
what  ought  to  be  done  in  order  to  carry  forward  the  work. 

Now,  the  question  just  comes  up  to  us  in  this  v/ay:  Are  we  to  have  an  efficient  or  an 
inefficient  Board  of  Agriculture,  If  you  are  going  to  have  an  efficient  board,  then 
you  must  have  some  one  at  its  head,  some  one  who  is  responsible,  and  who  is  held 
responsible;  and  in  order  to  do  that  you  must  give  him  the  power  and  the  position  to 
carry  out  these  duties. 

It  has  been  intimated,  Mr.  President,  by  several  gentlemen  that  you  cannot  have 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGIXIA. 


3089 


tliis  officer  elected  by  the  people  because  the  salary  is  insufficient.  Then,  I  say  increase 
the  salary.  Of  course,  that  is  not  a  question  for  this  body  to  deal  with,  but  making  this 
department  now  one  of  the  co-ordinate  departments  of  the  State,  I  w^ould  place  him 
in  at  least  as  high  a  position  in  connection  with  the  work  which  he  has  to  do  as  the 
Superintendent  of  Public  Instruction  occupies  in  the  work  which  he  has  to  do.  Give  him 
an  adequate  salary  and  make  it  so  that  he  can  fulfill  the  duties  which  devolve  upon  him. 

Mr.  President,  our  agriculture  in  many  parts  of  the  State  is  now  in  a  very  depressed 
and  tried  condition.  The  people  throughout  a  large  portion  of  the  State  who  cultivate 
the  land  are  poor.  They  have  the  land  and  the  native  ability,  but  most  of  them  have 
not  the  advantage  of  scientific  education.  They  need  help  as  to  methods,  and  we  want 
this  board,  which  has  now  been  established,  to  be  fully  up  to  the  point  of  yielding  the 
necessary  information  and  of  observing  the  proper  influence,  and  of  helping  the  people 
throughout  the  State;  and,  in  my  honest  judgment,  no  move  has  ever  been  made  by 
the  Convention  in  this  direction  which  will  be  so  effective  as  to  adopt  the  resolution 
presented  by  the  gentleman  from  Charlotte  (Mr.  Eggleston). 

Mr.  Brown:  Mr.  President,  it  seems  to  me  this  resolution  offered  by  the  gentleman 
from  Charlotte  strikes  at  the  whole  root  of  the  report  of  the  Committee  on  Agriculture 
which  was  so  carefully  considered  on  yesterday  and  the  day  before.  It  provides,  as  I 
understand  it,  that  the  Commissioner  of  Agriculture  shall  be  ex-officio  president  of  the 
Board  of  Agriculture.  It  seems  to  be  if  there  was  one  thing  contemplated  by  the 
report  of  the  committee  it  was  that  the  Commissioner  of  Agriculture  should  not  be 
appointed,  as  now,  by  the  governor,  but  should  be  put  under  the  control  of  the  Board 
of  Agriculture  as  one  of  its  officers,  responsible  to  that  board  for  its  action,  and  that 
board  responsible  to  the  people. 

The  gentleman  says  that  the  Board  of  Agriculture  has  at  its  disposal  $30,000  as  an 
income  from  the  fertilizer  tag  tax.  He  says  unless  the  Commissioner  of  Agriculture  is 
made  ex-officio  chairman  of  the  Board  of  Agriculture  the  people  will  have  no  opportunity 
to  hold  him  responsible  for  the  expenditure  of  this  money.  Gentlemen  of  the  Conven- 
tion, every  other  board  in  this  State  that  has  to  do  with  the  great  educational  institu- 
tions of  the  State  has  to  deal  with  large  amounts  of  the  people's  money,  and  I  have 
never  heard  it  coming  from  any  one  that  the  presidents  of  these  institutions  where 
the  money  of  the  people  is  spent  should  be  ex-officio  a  member  of  the  governing  board 
of  the  college.  It  seems  to  me,  gentlemen,  the  position  taken  by  your  committee  is  the 
correct  one.  Have  this  board  appointed  to  control  this  department  of  the  State's 
finances,  you  may  say,  and  directly  in  control  of  its  officers  and  of  the  expenditure  of 
the  money  under  it.  It  seems  to  me  there  is  no  trouble  about  these  boards  making  their 
proper  reports,  as  they  do  ma.ke  them,  or  should  make  them,  to  the  Senate  of  Virginia, 
where  I  know  in  the  past  all  of  these  matters  have  been  carefully  scrutinized. 

Mr.  Eggleston:  He  wishes  this  Convention  to  consider  this  report  and  adopt  it, 
because  it  has  been  so  carefully  considered.  I  should  like  to  know  of  the  gentleman 
if  the  committee  intentionally  left  out  a  provision  which  would  prevent  the  members 
of  this  board  from  electing  each  other  Commissioner  of  Agriculture. 

Mr.  Brown:  I  do  not  know,  sir.  I  am  not  a  member  of  the  committee.  It  might 
have  been  an  oversight.  I  do  not  know  anything  about  that.  So  far  as  I  am  concerned, 
I  think  it  would  be  a  very  good  provision  to  put  in,  and  certainly  an  eminently  proper  one, 
if  the  resolution  of  the  gentleman  is  to  obtain,  because  I  am  very  much  in  favor,  if  we 
have  a  commissioner  of  agriculture,  of  having  an  expert  who  can  do  something  to  elevate 
the  interests  of  agriculture  in  the  State,  and  not  have  the  gentleman  who  is  one  of  the 
appointees  of  the  Governor  appointed  as  a  representative  practical  farmer  from  the 
different  sections  of  the  State  to  be  able  to  elect  himself  to  be  Commissioner  of  Agri- 
culture. I  should  like  to  see  such  a  provision  as  that  adopted,  because  I  am  heartily 
in  favor  of  having  a  commissioner  of  agriculture  who  shall  be  not  only  a  practical  man, 
but  an  expert  able  to  lead  the  farmers  along  in  technical  lines  and  show  them  wher« 
they  can  improve  their  farming. 


132 — Const.  Deb. 


2090  DEBATER  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

It  seems  to  me  that  is  one  of  the  very  reasons  why  the  suggestion  made  by  the 
gentleman  from  Charlotte  should  not  be  adopted,  but  that  the  matter  should  be  left, 
as  has  been  contemplated  by  the  report  of  the  committee  in  the  hands  of  this  Board 
of  Agriculture,  and  under  their  control,  so  they  can  go  ahead  and  elect  a  man  who 
will  aid  them  in  carrying  on  this  work. 

I  should  be  very  glad,  as  far  as  I  am  concerned,  to  see  an  amendment  adopted 
to  the  effect  that  the  Board  of  Agriculture  cannot  elect  any  of  their  members  officers  of 
the  board.  It  seems  to  me  it  would  be  a  proper  amendment  to  be  adopted,  but 
I  do  think  the  Commissioner  of  Agriculture  ought  to  bear  the  same  relation  to  the 
Board  or  Agriculture  that  the  president  of  the  college  with  which  I  happen  to  have 
a  most  intimate  association  bears  to  the  college.  He  ought  not  to  be  ex-officio 
a  member  of  the  board.  He  ought  not  to  be  president  of  the  board,  but  the  respon- 
sibility ought  to  be  vested  in  the  board  that  is  appointed  by  the  Governor  to  manage 
the  finances  and  affairs  of  the  institution.  I  think  a  board  of  agriculture  ought  to 
be  on  the  same  plane  that  the  Commissioner  of  Agriculture  ought  to  be  a  member 
of  the  board,  and  that  the  board  ought  to  be  able  to  have  an  expert  man,  as  I 
believe  it  is  conceded  the  gentleman  now  in  charge  of  that  position  has  shown  himself 
to  be,  not  only  a  practical  man,  but  able  to  lead  farmers  along  technical  lines. 
I  do  not  want  to  see  anything  adopted  that  may  reduce  the  efficiency  of  that  commissioner. 
I  hope  the  amendment  will  not  be  adopted. 

Mr.  Parks:  I  have  an  amendment  I  desire  to  offer,  and  if  my  amendment  is 
adopted,  there  might,  and  in  all  probability  would  be  some  change  in  the  amend- 
ment he  desires  to  offer.  The  amendment  I  propose  to  offer  is  that  the  Commissioner 
of  Agriculture  shall  be  elected  by  the  qualified  voters  of  the  State,  and  I  would 
ask  if  the  gentleman  would  withhold  his  amendment  until  we  vote  upon  mline,  and 
then  if  my  amendment  is  adopted  there  would  have  to  be  some  consequential  amend- 
ment that  would  affect  the  amendment  he  has  offered. 

Mr.  Eggleston:  It  seems  to  me  the  best  way  to  accomplish  that  would  be  by 
just  adding  to  my  amendment  the  words  "  who  shall  be  elected  by  the  qualified 
voters  of  the  State,"  as  an  amendment  to  my  amendment.  That  would  give  the  Conven- 
^;ion  an  opportunity  to  consider  the  matter.  • 

Mr.  Lindsay:  Mr.  President,  I  rise  for  the  purpose  of  offering  this  amendment 
to  the  amendment  of  the  gentleman  from  Charlotte:  "And  who  shall  be  elected  by  the 
qualified  voters  of  the  State." 

The  President:  The  gentleman  from  Albemarle  (Mr.  Lindsay)  moves  to  amend 
the  amendment  of  the  gentleman  from  Charlotte  (Mr.  Eggleston).  The  Secretary 
will  read  the  proposed  amendment. 

Mr.  Stuart:  Mr.  President,  just  one  word  before  the  motion  is  put.  I  promise 
to  detain  the  Convention  but  for  a  moment.  The  suggestion  offered  by  the  gentle- 
man from  Charlotte  (Mr.  Eggleston)  absolutely  destroys  the  check  which  has  been 
proposed  between  the  executive  officer  upon  one  side  and  the  managing  board  upon  the 
other.  It  destroys  the  symmetry  of  the  whole  scheme,  and  absolutely  makes  the 
system  a  cumbersome  and  a  useless  one.  There  are  no  checks  possible  under  the 
system  he  proposes.  As  to  election  by  the  people  I  have  heretofore  expressed  myself 
on  that  subject.  I  deem  it  unwise,  for  various  reasons  heretofore  expressed,  which  I 
hardly  need  repeat,  and  which  it  seems  to  me  will  readily  occur  to  members  of  the  body. 

Mr.  Brown:  I  desire  to  call  the  attention  to  one  point  that  seems  to  me  may 
be  lost  sight  of  in  this  matter.  If  this  commissioner  is  to  be  elected  by  the  people, 
we  are  building  up  here  a  very  large  interest  in  politics  which  may  influence  that 
commissioner  more  than  the  consideration  of  agricultural  matters.  The  Board  of 
Agriculture,  in  its  field  of  usefulness,  has  no  stronger  interest  than  that  of  holding 
Institutes  in  each  of  the  counties  of  the  State,  for  the  purpose  of  elevating  the  people, 
and  elevating  their  ideas;  but,  gentlemen,  if  you  vote  to  make  this  commissioner 
elected  by  the  people,  you  put  in  his  hands  not  only  the  opportunity  to  build  ud 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGINIA. 


2091 


as  a  political  factor,  but  you  put  behind  him  the  treasury  of  the  State  in  his  peregri- 
nations through  the  State  with  that  object  in  view.  I  hope  the  gentlemen  of  the 
Convention  will  consider  that  view  of  the  matter  carefully  before  they  adopt  the 
amendment  offered  by  the  gentleman  from  Albemarle  (Mr.  Lindsay). 

The  President:  The  question  is  on  the  amendment  of  the  gentleman  from  Albemarle 
(Mr.  Lindsay). 

Mr.  Lindsay:  I  desire  to  announce  a  pair  on  this  question  between  the  gentleman 
from  Fairfax  (Mr.  Moore)  and  the  gentleman  from  Lynchburg  (Mr.  Glass).  If 
they  were  both  present  the  gentleman  from  Fairfax,  would  vote  "yea,"  and  the  gentleman 
from  Lynchburg  v/ould  vote  "nay." 

The  question  having  been  taken, 'the  result  was  announced — ayes,  33;  nays,  36,  as 
follovvs: 

Ayes— Barbour,  Barham,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Boaz,  Bouldin,  Bria> 
tow.  Chapman,  Earman,  Garnett,  B.  T.  Gordon,  R.  L.  Gordon,  Green,  Hancock,  Hubard, 
G.  W.  Jones.  Lindsay.  Lovell,  Mcllwaine,  O'Flaherty,  Parks,  Pedigo,  Phillips,  Quarles, 
Richmond,  Summers, '  Tarry,  Thom,  Watson,  Wescott,  Withers,  Yancey,  The  Presi- 
dent—33. 

I^Toes — Allen,  George  K.  Anderson,  Blair,  Braxton,  Brooke,  Brown,  P.  W.  Camp- 
bell, Carter,  Dunaway,  Eggleston,  Fairfax,  James  W.  Gordon,  Gwyn,  Hamilton,  Hatton, 
Hooker.  Hunton,  Ingram,  Claggett  B.  Jones,  Kendall.  Lawson,  Lincoln.  Meredith, 
Miller.  Moncure,  Orr,  Pollard,  Portlock,  Rives,  Stebbins.  Stuart,  Turnbull.  Waddill, 
Walker  Willis,  Wise— 36. 

The  amendment  to  the  amendment  was  rejected. 

Mr.  Mcllwaine:  Mr.  President,  I  hope  the  gentleman  from  Charlotte  will  allow 
that  to  be  divided,  so  that  we  may  vote  first  on  "  who  shall  be  a  member  of  the  board," 
and,  second,  on  "ex-officio  president."  There  may  be  some  gentlemen  here  who  are 
willing  for  the  one  and  not  for  the  other. 

The  President:  The  gentleman  from  Prince  Edward  (Mr.  Mcllwaine)  asks  a 
division  of  the  question  as  indicated.  The  Secretary  will  read  the  first  branch  of  the 
proposition. 

Add  after  the  word  "years"  in  line  8,  the  words  "and  who  shall  be  a  member  of 
the  board." 

The  ayes  and  noes  being  talien,  the  result  was  announced — ayes,  18;  noes,  45. 
The  first  branch  of  the  amendment  was  rejected. 

The  President:  The  first  branch  having  been  rejected,  the  whole  amendment 
necessarily  fails. 

Mr.  Stuart:  Mr.  P-resident,  I  have  consulted  with  several  members  of  the  com- 
mittee whom  I  have  been  able  to  reach,  and  they  have  brought  to  my  attention  tlhe 
fact  that  in  lines  12  and  13,  Section  1,  there  should  be  some  additional  languag-e 
employed  to  clearly  express  the  meaning.  It  reads:  "The  General  Assembly  may,  in  its 
discretion,  add  other  members  to  the  said  board,"  the  words  "  ex-officio''  having  been 
stricken  out.  Now,  the  words  I  wish  to  add  are  these,  "appointed  by  the  Governor." 
The  appointing  power  of  the  (xovernor  shall  remain,  but  the  General  Assembly  may 
prescribe  what  members  shall  be  added  to  the  board. 

Mr.  Mcllwaine:  Mr.  President,  I  move  to  strike  out  that  clause.  I  cannot  imagine 
what  use  in  the  world  the  addition  of  members  other  than  those  that  constitute  the 
regular  board  will  be.  We  want  a  ooard  that  is  properly  constituted,  and  that  will  feel 
their  responsibility.  But  as  for  adding  other  honorary  members  to  that  board,  it  seems 
to  me  it  will  weaken  it  and  will  interfere  with  its  efficiency. 

The  President:  The  question  is  on  agreeing  to  the  motion  to  strike  out.  The 
yeas  and  nays  have  been  ordered.    The  Secretary  will  call  the  roll. 

The  question  having  been  taken,  the  result  was  announced — ayes,  36;  noes,  23 — as 
follows : 

Ayes — Messrs.  George  K.  Anderson,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Blair, 


209,2 


DEBATES  OE  THE  COAtSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Bristow,  Carter,  Dunaway,  Earman,  Eggleston,  Garnett,  James  W.  Gordon,  R.  K 
Gordon,  Gwyn,  Hancock,  Hooker,  Hubard,  Claggett  B.  Jones,  G.  W.  Jones,  Lawson, 
Lincoln,  Lindsay,  Lovell,  Mcllwaine,  Meredith,  Moncure,  Orr,  Parks,  Pedigo,  Phillips, 
Quarles,  Tarry,  Watson,  Wise,  Withers,  Yancey,  and  the  President — 36. 

Noes — Messrs.  Allen,  Barbour,  Boaz,  Bouldin,  Braxton,  Brown,  P.  W.  Campbell, 
Fairfax,  Ingram,  Miller,  O'Flaherty,  Pollard,  Portlock,  Richmond,  Rives,  Stebbi'ns, 
Stuart,  Summers,  Turnbull  Waddill,  Walker,  Wescott,  and  Willis— ?3. 

The  motion  to  strike  out  was  agreed  to. 

Mr.  Barbour:  Mr.  President,  I  move  to  amend  Section,  1  by  striking  out,  in  lines 
2  and  3,  the  words,  "appointed  by  the  Governor,  subject  to  the  confirmation  of  the 
Senate,"  and  inserting  in  lieu  thereof  the  words  "elected  by  the  qualified  voters  of  the 
respective  congressional  districts." 

The  effect  of  the  amendment  is  to  strike  out  the  word  "appointed,"  in  lines  5  and 
6  and  insert  in  lieu  thereof  the  word  "elected." 

Mr.  Brown:  Mr.  President,  I  offer  as  an  amendment  to  add,  after  the  word 
"Immigration,"  in  line  18,  at  the  end  of  that  part  of  the  section,  as  follov>^s:  "Except  that 
no  member  of  the  board  shall  be  eligible  to  such  election."  That  will  meet  the  views 
of  the  gentleman  from  Charlotte  (Mr.  Eggleston),  and  will  make  it  impossible  for  the 
Board  of  Agriculture  to  elect  any  of  its  own  members  to  this  board. 

Add  after  the  word  "  immigration,"  in  line  18,  the  following:  "  Except  that  no 
member  of  the  board  shall  be  eligible  to  such  election."   The  paragraph  would  then  read : 

The  powers  and  duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by  law: 
provided,  that  the  Department  of  Agriculture  and  Immigration  shall  be  maintained 
permanently  at  the  Capital  of  the  State,  with  power  to  establish  and  maintain  branches 
to  be  located  elsewhere,  and  shall  have  power  to  elect  and  remove  its  officers,  includ- 
ing a  Commissioner  of  Immigration,  except  that  no  member  of  the  board  shall  be 
eligible  to  such  election. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Bedford  (Mr.  Brown). 

The  question  having  been  taken,  the  result  was  announced — ayes,  60;  noes,  2. 
The  amendment  was  agreed  to. 

Mr.  Pedigo:    Mr.  President,  I  now  offer  this  amendment: 

After  the  word  "State,"  in  line  3,  strike  out  down  to  and  including  line  8,  and  in- 
sert in  lieu  thereof  the  words  "who  shall  be  elected  by  the  people."  The  section  will 
then  read:  "There  shall  be  a  Bureau  of  Agriculture  and  Immigration,  under  the  man- 
agement and  control  of  a  Board  of  Agriculture  and  Immigration,  composed  of  one 
member  from  each  congressional  district  in  the  State,  who  shall  be  elected  by  the 
people." 

Mr.  BTown:  I  move  to  lay  the  motion  of  the  gentleman  from  Henry  (Mr.  Pedigo) 
on  the  table. 

The  motion  was  agreed  to. 

Mr.  Barbour:  Mr.  President,  I  move  to  amend  Section  1  by  adding  to  the  first 
paragraph  thereof,  as  it  has  been  amended,  the  words  "and  who  shall  be  elected  by 
the  qualified  voters  of  the  State."  I  understand  that  this  motion  has  been  submitted 
once  and  ruled  out  on  a  point  of  order,  and  I  make  the  motion  now  simply  that  I 
may  be  given  an  opportunity  to  be  heard  by  the  Chair  on. the  point  of  order. 

The  motion  as  originally  submitted,  as  I  understand  it,  was  in  the  form  of  an 
amendment  to  an  amendment  offered  by  the  gentleman  from  Charlotte,  which,  if 
carried,  would  have  coupled  this  proposition  with  another  proposition  which  was  not 
supported  by  the  Convention.  The  amendment  is  now  offered  as  an  independent  propo- 
sition, and  has  nothing  to  do  with  the  amendment  of  the  gentleman  from  Charlotte. 

The  President:  The  Chair  is  glad  to  hear  the  gentleman.  It  seems  the  propo- 
sition was  embraced  in  an  amendment  to  an  amendment,  and  that  was  voted  down, 


DEBATES  OE  TEIE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA.  2093 

but  this  seems  to  me  a  separate  and  distinct  proposition.  The  Chair  holds  it  to  be 
in  order.    The  Secretary  will  read  the  amendment. 

Add  after  the  word  "years"  the  words  "and  who  shall  be  elected  by  the  qualified 
voters  of  the  State."    The  paragraph  would  then  read: 

There  shall  be  a  Commissioner  of  Agriculture  and  Immigration,  whose  term  of 
office  shall  be  four  years,  and  who  shall  be  elected  by  the  qualified  voters  of  the  State." 

Mr.  Lindsay:  Mr.  President,  I  sincerely  hope  the  Convention  will  see  fit  to  adopt 
this  amendment.  The  question  of  selecting  the  Commissioner  of  Agriculture  has  been 
considered  in  a  number  of  other  States,  and  various  methods  have  been  adopted.  I 
happen  to  know  of  the  experience  of  one  of  the  Southern  States  in  this  regard. 
For  some  time  the  Commissioner  of  Agriculture  was  selected  in  North  Carolina  by 
the  Legislature,  and  in  every  Instance  a  politician  was  put  in  that  office  as  long  as 
the  choice  was  left  to  the  Legislature. 

Five  or  six  years  ago  the  method  of  selecting  the  Commissioner  of  Agriculture 
was  changed  to  election  by  the  people,  and  I  point  to  the  experience  of  that  State  to 
prove  the  wisdom  of  that  method.  Since  the  adoption  of  this  plan  there  has  never 
been  •  selected  any  one  but  a  practical  farmer,  one  who  was  experienced  in  agriculture, 
and  the  choice  by  the  people  has  proven  eminently  satisfactory  in  every  particular. 
In  the  State  north  of  us,  Maryland,  they  have  had  identically  the  same  experience. 
In  Georgia,  if  I  mistake  not.  the  Commissioner  of  Agriculture  is  chosen  by  popular 
vote.  The  same  is  true  in  South  Carolina.  I  have  looked  at  no  other  states,  but  from 
what  I  have  heard,  the  majority  of  the  States  that  have  commissioners  of  agricul- 
ture have  them  elected  by  the  peopla 

Now,  this  Convention  has  in  the  past  selected  a  number  of  the  heads  of  different 
departments.  It  did  not  see  fit  to  select  the  judges  of  the  Supreme  Court,  but  in 
every  other  instance  the  heads  of  the  different  departments  have  been  elected  by  the 
people,  and  it  does  seem  to  me  we  can  safely  entrust  this  to  the  people  of  Virginia, 
and  especially  to  those  who  are  interested  in  the  subject.  I  believe  the  people  would 
in  every  instance  make  a  wise  selection,  but  certainly  they  would  be  more  likely  to  do 
so  than  would  either  the  General  Assembly  or  the  Governor,  and  I  appeal  to  this 
Convention  to  give  the  people  the  opportunity. 

Mr.  Brown:  Mr.  President,  I  dislike  to  detain  the  Convention  in  this  matter,  but 
it  does  seem  to  me  that  we  are  face  to  face  with  one  of  the  vital  propositions  dealing 
with  the  efficiency  of  this  Board  of  Agriculture.  The  gentleman  from  Albemarle 
county  (Mr.  Lindsay)  states  that  in  the  majority  of  the  States  having  commissioners 
of  agriculture  they  are  elected  by  the  people.  I  believe  my  information  is  correct  that 
the  majority  of  the  States  do  not  have  a  commissioner  of  Agriculture  at  all,  by  that 
name,  but  have  an  officer  who  performs  the  functions  performed  by  the  Commissioner 
of  Agriculture,  and  who  is  called  the  Secretary  of  the  Board  of  Agriculture  and 
elected  by  the  Board  of  Agriculture. 

I  wish  to  again  call  the  attention  of  the  members  of  the  Convention  to  the  fact 
that  if  they  provide  that  this  officer,  known  as  the  Commissioner  of  Agriculture, 
shall  be  elected  by  the  people,  they  are  treading  upon  very  dangerous  ground.  One 
of  the  chief  functions  of  the  Board  of  Agriculture,  to  which  I  tried  to  call  the 
attention  of  the  Convention  before,  is  in  holding  farmers'  institutes.  Farmers'  institutes 
ought  to  be  held,  and  will  be  held,  in  every  county  of  the  State.  Those  farmers' 
Institutes  are  held  under  the  Board  of  Agriculture,  by  the  Commissioner  of  Agriculture, 
principally  because  he  is,  or  ought  to  be,  the  man  who  can  attend  those  institutes  and 
give  the  farmers  direct  information  upon  the  most  progressive  methods  to  be  used  in 
agriculture.  It  does  seem  to  me  the  Convention  is  taking  a  wrong  step  in  putting 
into  the  hands  of  one  man  an  opportunity  to  go  into  every  county  of  this  State  to  hold 
these  institutes  and  deliver  these  lectures  to  the  people,  and  have  back  of  him  the 
treasury  of  the  State  in  doing  it. 


2094 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


May  this  office  not  fall  into  the  hands  of  some  man  who  would  use  the  opportunities 
offered  for  personal  and  political  purposes?  Would  it  not  be  a  very  dangerous  step 
for  the  Convention  to  take?  I  think  it  would,  and  I  therefore  move  to  lay  this  motion 
on  the  table. 

The  President:    The  motion  is  withdrawn.    The  question  is  on  agreeing  to  the 
amendment,  which  the  Secretary  will  read. 
The  Secretary  read  as  follows: 

Insert  after  the  word  "years/'  in  line  8,  the  following:  "And  who  shall  be  elected 
by  the  qualified  voters  of  the  State."  The  paragraph  would  then  read:  "There  shall 
be  a  Commissioner  of  Agriculture  and  Immigration,  whose  term  of  office  shall  be  four 
years,  and  who  shall  be  elected  by  the  qualified  voters  of  the  State.*' 

Mr.  Stebbins:  On  this  question  I  am  paired  with  the  gentleman  from  Fauquier 
(Mr.  Fletcher).  If  he  were  present  he  would  vote  "yea,"  and  I  should  vote  "nay." 

Mr.  Glass:  I  am  paired  with  the  gentleman  from  Fairfax  (Mr.  Moore).  If  he  were 
present  he  would  vote  "yea"  and  I  should  vote  "nay." 

The  question  having  been  taken,  the  result  was  announced — ayes,  36;  noes  28 — as 
follows: 

Ayes — Messrs.  George  K.  Anderson,  Barbour,  Barham,  Manly  H.  Barnes,  Thomas 
H.  Barnes,  Blair,  Boaz,  Bouldin,  Bristow,  Brooke,  Chapman,  Earman,  Garnett,  R.  K 
Gordon,  Gwyn,  Hancock,  Hubard,  G.  W.  Jones,  Lawson,  Lindsay,  Lovell,  Mcllwaine, 
O'Flaherty,  Parks,  Pedigo,  Phillips,  Quarles,  Richmond,  Summers,  Tarry,  Thorn,  Wat- 
son, Wescott,  Withers,  Woodhouse,  and  the  President — 36. 

Noes — Messrs.  Allen,  Braxton,  Brown,  P.  W.  Campbell,  Carter,  Dunaway,  Eggles- 
ton,  Fairfax,  James  W.  Gordon,  Hatton,  Hooker,  Hunton,  Ingram,  Claggett  B.  Jones, 
Lincoln,  Meredith,  Miller,  Moncure,  Orr,  Pollard,  Portlock,  Rives,  Stuart,  TurnbuU, 
Waddill,  Walker,  Willis,  and  Wise— 28. 

The  amendment  was  agreed  to. 

Mr.  Carter:  I  offer  the  following  substitute  for  Section  1: 

The  General  Assembly  shall  establish  and  maintain  at  the  seat  of  government, 
with  such  subordinate  branches  elsewhere  as  may  be  necessary,  a  Bureau  of  Agricul- 
ture and  Immigration,  with  powers  and  duties  to  be  defined  by  law 

Mr.  President,  it  will  be  recognized  that  that  is  the  same  substitute  that  was  voted 
on  by  the  Committee  of  the  Whole  yesterday,  and  therefore  I  shall  make  but  very  few 
remarks  in  support  of  it.  It  seems  to  me,  Mr.  President,  that  this  report,  in  the 
condition  in  which  it  now  is,  violates  one  of  the  cardinal  principles  for  which  we  were 
sent  here,  and  that  was  to  diminish  officers  in  the  State  of  Virginia.  It  creates  some 
twelve  or  fourteen  constitutional  officers  whose  number  cannot  be  diminished,  whatever 
may  be  the  necessities  of  the  occasion.  It  fastens  on  us  for  all  time  to  come,  until 
the  Constitution  is  changed,  a  board  which  consists  of  one  member  from  each  congres- 
sional district,  and  one  from  the  Polytechnic  School  in  Bedford,  which  will  be,  I  fear, 
an  increasing  power  for  expense  in  the  Commonwealth.  I  do  not  pose  as  anything 
of  a  prophet,  but  I  think  if  we  live  for  ten  years  we  will  see  the  expenses  of  the 
present  Agricultural  Department  increased  fourfold,  or  even  more,  without  any  increase 
in  its  efficiency,  and  it  will  be  beyond  the  power  perhaps  of  the  General  Assembly  to 
change  it.  There  will  be  a  constitutional  officer  in  every  congressional  district  of  the 
State,  who  will  be  working  for  increased  appropriations,  increased  expenditures,  experi- 
mental farms  here  and  there  and  everywhere;  and  it  will  be  almost  impossible  to 
overestimate  their  influence  or  to  properly  reach  it  if  it  be  an  influence  for  evil. 

Mr.  Thom:  Do  I  understand  my  friend  is  sufficiently  acquainted  with  the  views 
of  the  farmers  to  take  this  position? 

Mr.  Carter:  I  am  sufficiently  acquainted,  Mr.  President,  with  human  nature  to 
know  that  if  you  establish  such  a  board  as  this,  it  will  begin  to  work  with  the  view 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIEGIXIA.  2095 

that  that  is  the  one  important  thing  for  them  to  do  in.  the  Commonwealth.  They 
will  think  their  work  is  the  most  important  in  the  State,  just  as  my  friend  from 
Norfolk  thinks  his  city  is  the  gem  of  the  State,  and  the  fact  that  he  so  thinks  and  is 
so  mistaken,  shows  how  even  a  man  of  his  strong  intellectual  ability  will  be  domi- 
nated by  what  surrounds  him.  If  we  establish  such  a  board  as  this  we  will  have  men 
here  like  my  distinguished  friend  from  Bedford  (Mr.  Brown),  with  one  idea  alone, 
and  that  will  be  to  magnify  the  position  they  hold,  and  to  get  into  the  coffers  of  the 
Commonwealth,  for  the  purpose  of  increasing  the  efficiency  of  that  position.  Honest 
and  patriotic  as  he  is,  we  have  seen  that  since  this  report  is  being  considered,  he 
is  dominated  by  one  idea,  and  that  is  that  the  Polytechnic  Institute  in  B-edford — I 
believe  that  is  where  it  is — is  absolutely  necessary  to  save  the  agricultural  interests  of 
Virginia  from  an  impending  doom;  and  that,  Mr.  President  and  gentlemen  of  the 
Convention,  is  the  vice  in  this  report.  It  has  affected  the  members  of  the  committee, 
and  its  clear-headed,  sensible  chairman,  for  whom  I  feel  not  only  admiration  but 
affection,  but  yet  it  does  seem  to  me  that  they  have  fallen  into  this  dangerous  path, 
and  I  think  that  to  preserve  us  for  the  future  from  the  danger  which  I  think  this 
thing  threatens  ,we  had  better  adopt  the  substitute  which  was  offered  by  the  gentleman 
from  Nottoway  (Mr.  Watson)  on  yesterday,  which  leaves  it  as  it  is  now,  in  the  power  of 
the  General  Assembly  to  make  such  changes  as  experience  in  the  future  may  demon- 
strate the  wisdom  of. 

Mr.  Barbour:    Mr.  President,  I  offer  the  following  amendment  to  the  substitute: 

Provided,  that  the  chief  executive  officer  of  said  bureau  shall  be  the  Commissioner 
of  Agriculture  and  Immigration,  who  shall  be  elected  by  the  qualified  voters  of  the 
State  for  a  term  of  four  years. 

Mr.  Barbour:  Mr.  President,  I  simply  desire  to  call  attention  to  the  fact  that  the 
object  of  that  amendment  is  to  clinch  this  matter  of  electing  a  commissioner  by  the 
people,  if  the  substitute  of  the  gentleman  from  Hanover  (Mr.  Carter)  is  adopted.  I 
do  not  favor  his  substitute,  but  if  it  is  adopted,  it  should  be  adopted  with  that  proviso. 

Mr.  Stuart:  Mr.  President,  it  has  been  the  effort  of  the  chairman  of  this  com- 
mittee and  his  associates  to  fulfill  the  expectations  of  those  people  in  Virginia  who  have 
an  interest  in  the  subjects  which  have  been  under  their  consideration.  I  am  not  here 
to  indulge  in  cheap  talk  about  agriculturists  or  about  farmers,  or  about  the  hard- 
ships of  farmers  or  anything  of  that  kind.  I  am  not  here  for  the  purpose  of  making 
demagogic  appeals  to  the  country  or  any  other  section;  but,  sir,  I  want  to  call  the 
attention  of  this  body  to  one  significant  fact,  that  the  first  effort  that  has  ever  been 
made  in  this  State  to  write  a  line  in  its  Constitution  in  support  of  the  agricultural 
interests  of  the  State,  and  in  recognition  of  it,  is  now  in  serious  danger  of  being 
stricken  out. 

Mr.  R.  L.  Gordon:  I  desire  to  appeal  to  this  body  not  to  perpetuate  a  thing  which 
is  experimental  in  its  nature,  and  which  v/e  know,  if  we  know  anything,  may  be  shown 
to  be  imperfect  when  touched  with  experience.  We  know,  sir,  that  hardly  any  act  has 
ever  been  passed  by  the  General  Assembly  which,  when  put  into  practical  operation 
and  the  touch  of  experience  was  applied  to  it,  did  not  demonstrate  that  it  needed 
amendment,  and  that  the  gentleman  who  prepared  the  act  did  not  know  everything, 
but  that  the  future  had  some  developments  in  regard  to  it. 

I  want  to  say  further  that  the  farmers  of  Virginia  have  been  heard  in  their 
legislative  halls.  They  have  now  a  Commissioner  of  Agriculture.  They  have  now  the 
power  to  improve  that  condition  of  things  as  the  experience  of  the  future  may  demand, 
if  there  is  any  defect  in  it.  The  farmers  of  Virginia,  through  their  representatives  in 
this  body,  will  have  no  difficulty  in  supplying  that  defect  and  in  improving  that 
system  as  the  future  may  require;  but  the  gentleman  from  Russell,  I  think,  is  led  by 
an  over-zeal  in  the  interests  of  agriculture.  I  know  that  every  heart-throb  of  his  is 
in  the  interest  of  the  farmers  of  Virginia,  and  I  think  that  mine  are  equally  so,  but  it 


2096  DEBATES  OF  THE  COXSTITUTIOaSTAL  CONVENTION  OE  TIEGINIA. 

is  only  a  difference  of  opinion  between  we  gentlemen;  and  if  there  is  one  thing,  gen- 
tlemen, that  we  must  reserve  and  keep  sacred  upon  this  floor,  it  is  the  right  to  differ, 
because  we  have  done  nothing  but  differ  since  we  met. 

Mr.  President,  I  think  I  said  on  yesterday  that  the  very  beginning  of  the  commit- 
tee was  a  little  play  to  the  galleries,  and  while  my  friend  from  Russell  

Mr.  O'Flaherty:  Mr.  President,  if  the  gentleman  will  permit  me,  that  statement 
went  unchallenged  yesterday.  I  made  the  motion  to  have  this  committee  appointed, 
and  I  absolutely  mean  to  say  to  the  gentleman  that  I  had  no  such  idea,  and  I  repu- 
diate that  assertion.    I  had  no  more  idea  of  playing  to  the  galleries  than  I  have  now. 

Mr.  Pv.  L.  Gordon:  I  am  very  glad,  Mr.  President,  to  know  that  the  gentleman 
was  not  playing  to  the  galleries.  I  thought  he  was,  but  I  am  sure  now  that  he  was 
not,  because  he  says  so. 

But,  Mr.  President,  I  started  out  by  saying  that  inasmuch  as  my  friend  from 
Russell  has  been  placed  in  this  position,  while  I  regret  as  much  as  any  man  on  this 
floor  to  antagonize  any  position  he  takes,  I  do  not  think  any  sense  of  courtesy  ought 
to  induce  this  body  to  put  into  the  fundamental  law  any  principle  which  does  not 
commend  itself  to  their  common  sense,  whether  it  will  mortify  one  gentleman  or  any 
gentleman,  and  I  hope  the  Convention  will  give  to  the  General  Assembly  the  right 
to  control  and  govern  this  matter  in  the  future  as  the  wisdom  and  experience  of  the 
future  may  dictate. 

Mr.  Wescott:  Mr.  President  and  gentlemen  of  the  committee,  I  deprecate  ex- 
tremely the  renewal  of  this  proposition  which  was  yesterday  made  and  defeated 
in  Committee  of  the  Whole.  It  seems  to  me,  gentlemen,  that  with  the  amendments 
which  have  been  made  in  the  recommendations  of  this  committee  by  the  Committee 
of  the  Whole  its  report  ought  to  be  adopted;  and  I  wish  to  say  in  that  connection 
that  in  my  advocacy  of  this  report,  whilst  a  member  of  that  parasitical  body  to  which 
the  gentleman  from  Henry  (Mr.  Pedigo)  referred,  I  do  not  wholly  derive  my  means 
of  subsistence  in  that  way,  but  live  upon  and  cultivate  my  farm. 

I  merely  rise  to  reply  to  the  suggestion  of  the  gentleman  from  Louisa  (Mr.  Gor- 
don), who  says  upon  this  floor  that  in  his  opinion  the  appointment  of  this  committee 
was  a  play  to  the  galleries.  I  want  to  suggest  to  my  friend  that  if  he  is  in  earnest  in 
that  proposition,  and  if  it  takes  any  hold  upon  the  minds  of  the  members  of  this 
body,  if  we  concede  the  appointment  of  a  Committee  on  Agriculture  was  a  play  to  the 
galleries,  and  if  the  farmers  of  the  State  of  Virginia  are  the  galleries  to  whom  we 
have  begun  playing,  I  would  urge  most  seriously  upon  the  consideration  of  this  body 
that  this  is  no  time  to  cease  playing,  and  we  had  better  play  on  consistently  to  the 
galleries  to  the  end. 

Mr.  Brown:  Mr.  President,  I  desire  to  say  only  a  few  words  on  this  matter. 
From  the  remarks  of  the  gentleman  from  Hanover  (Mr.  Carter),  who  introduced  the 
resolution,  it  seems  that  my  position  has  been  absolutely  misunderstood,  certainly  by 
iim.  I  hope  his  ignorance  on  that  point  is  as  great  as  his  ignorance  of  the  position 
of  the  Polytechnic  Institute  to  which  he  referred.  I  hope  I  have  not  produced  on  this 
body  the  impression  of  being  a  special  advocate.  I  am  sure  I  did  not  intend  to  do 
so.  My  idea  was  to  help  this  committee's  report  through  this  body  by  drawing  atten- 
tion to  its  good  features.  I  did  not  alone  make  such  allusions.  It  is  true  I  voted 
against  the  proposition  in  the  committee's  report  providing  for  the  election  by  the 
people  of  the  Commissioner  of  Agriculture,  but  I  do  not  think  that  proposition  is 
Tital  to  the  real  success  of  this  report,  and  I  hope  the  Convention  will  adopt  the 
report  of  the  committee  as  it  has  been  amended,  and  vote  down  the  proposition  of  the 
gentleman  from  Hanover. 

("Question!  question!") 

At  this  point  Mr.  Walker  took  the  chair  as  presiding  officer. 

Mr.  Barbour:    I  withdraw  the  amendment  which  I  have  offered  to  the  substitute. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2097 

The  Presiding  Officer:  The  question  is  on  agreeing  to  the  substitute  proposed  by 
the  gentleman  from  Hanover  (Mr.  Carter)  to  Section  1  of  the  committee's  report. 

The  question  having  been  taken,  the  result  was  announced — ayes,  13;  noes,  61. 
The  substitute  was  rejected. 

Mr.  Lindsay:  I  offer  the  following  amendment:  In  line  20,  instead  of  the  words, 
''president  of  the  board,"  substitute  the  words,  '-Commissioner  of  Agriculture  and 
Immigration." 

Mr.  President,  I  do  this  for  the  reason  that,  the  president  of  the  Virginia  Poly- 
technic Institute  is  made  a  member  of  the  Board  of  Agrictilture,  and  correspondingly 
that  officer  would  naturally  be  the  Commissioner  of  Agriculture,  vrho  would,  if  my 
amendment  is  adopted,  be  made  a  member  ex-officio  of  the  Board  of  Visitors. 

Mr.  O'Flaherty:  I  raise  the  point  of  order  that  there  cannot  be  any  more  amend- 
ments offered  to  this  section,  as  there  was  a  substitute  offered  for  it. 

The  Presiding  Officer:  The  Chair  thinks  the  amendment  ought  to  have  been 
offered  before  the  substitute  was  voted  on. 

Mr.  Stuart:    I  move  the  adoption  of  Section  1  of  the  report  as  amended. 

Section  1  was  adopted. 

Mr.  Stuart:  Mr.  President,  I  suggest  that  the  report  be  read  as  amended,  so 
that  members  may  see  if  there  is  anything  they  desire  to  correct. 

The  Presiding  Officer:    The  Secretary  will  read  the  report  as  amended. 
The  Secretary  read  as  follows: 

There  shall  be  a  Bureau  of  Agriculture  and  Immigration,  which  shall  be  under  the 
management  and  control  of  a  Bureau  of  Agriculture  and  immigration,  composed  of 
one  member  from  each  congressional  district  in  the  State,,  who  shall  be  a  practical 
farmer,  appointed  by  the  Governor,  subject  to  the  confirmation  of  the  Senate,  for  a 
term  of  four  years,  except  that  the  mempers  first  appointed  after  the  adoption  of  this 
Constitution  from  the  odd-numbered  congressional  districts,  shall  hold  office  for  two 
years.  There  shall  be  a  Commissioner  of  Agriculture  and  Immigration,  whose  term 
of  office  shall  be  four  years,  and  who  shall  be  elected  by  the  qualified  voters  of  the 
State. 

The  president  of  the  Virginia  Polytechnic  Institute  shall  be  a  member  ex-officio 
of  the  Board  of  Agriculture  and  Immigration. 

The  powers  and  duties  of  the  said  board  shall  be  such  as  may  be  prescribed  by 
law:  provided,  that  the  Department  of  Agriculture  and  Immigration  shall  be  main- 
tained permanently  at  the  Capital  of  the  State,  with  power  to  establish  and  maintain 
branches  to  be  located  elsewhere,  and  shall  elect  and  have  power  to  remove  its  officers. 

The  president  of  the  Board  of  Agriculture  and  Immigration  shall  be  a  member 
ex-officio  of  the  Board  of  Visitors  of  the  Virginia  Polytechnic  Institute. 

At  this  point  the  President  resumed  the  chair. 

On  motion  of  Mr.  Meredith,  the  Convention  adjourned  until  to-morrow,  Saturday, 
February  1.  1902,  at  10  o'clock  A.  M. 


SATURDAY,  February  1,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Davis,  D.  D. 

Mr.  Green:  I  move  that  the  Convention  resolve  itself  into  a  Committee  of  the 
Whole  for  the  consideration  of  the  report  of  the  Committee  on  the  Preamble  and  Bill 
of  Rights,  the  Division  of  Governmental  Powers  and  on  such  portions  of  the  Constitu- 
tion as  shall  not  be  referred  to  other  committees. 

The  motion  was  agreed  to,  and  the  Convention  resolved  itself  into  a  committee  of 
tie  Whole,  Mr.  Turnbull  in  the  Chair. 


2098  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Green:  Mr.  Chairman,  I  do  not  desire  to  detain  the  committee  with  any  speech 
on  this  report.    I  will  ask  that  the  first  section  be  read. 

Mr.  James  W.  Gordon:  I  move  to  strike  out  the  word  "two,"  in  line  8,  and  insert 
"one."  It  would  have  the  effect  of  reducing  the  homestead  exemption  from  |2,000 
to  $1,000. 

Mr.  Chairman,  my  reason  for  offering  this  amendment  I  can  state  in  a  very  few- 
words.  This  article  in  the  Constitution  was  adopted  just  after  the  war,  out  of  respect 
to  the  impoverished  condition  of  the  people,  and  at  a  time  when  the  cost  of  supplies 
was  much  higher  than  at  present.  I  believe  $1,000  in  quite  as  much  at  this  time  as 
$2,000  was  at  that  time,  and  I  believe  that  $1,000  is  all  that  any  man  ought  to  be 
allowed  to  hold  exempt  from  the  just  claims  of  his  creditors.  I  believe  that  it  is  the 
only  protection  that  is  necessary  to  carry  out  the  public  policy  of  this  provision,  and 
I  believe  it  would  enhance  the  security  of  commercial  enterprises  and  be  a  benefit  to 
the  debtor  himself  if  we  would  reduce  this  amount.  For  these  reasons  I  hope  the 
committee  will  see  fit  to  make  the  change. 

The  amendment  was  rejected;  there  being  upon  a  division,  ayes,  18;  noes,  33. 

The  Chairman:  Are  there  any  further  amendments  to  Section  1?  If  not,  the 
secretary  will  read  Section  2. 

Sec.  2.  The  said  exemption  shall  not  be  claimed  or  held  in  a  shifting  stock  of 
merchandise. 

Mr.  Green:  Mr.  Chairman,  I  think  it  is  proper  to-  explain  that  that  was  an  addi- 
tional section  to-  the  homestead  provision  now  existing.  It  w^as  put  there,  however, 
in  deference  to  a  decision  in  the  Gourt  of  Appealsi,  and  I  think  v/hen  the  case  is 
thoroughly  presented,  the  court  would  hold  anyhow,  as  the  law  exists  now,  that  they 
could  not  claim  the  exemption.  We  thought  we  had  better  put  that  question  at  rest, 
and  we  just  put  that  section  there  for  that  purpose. 

Mr.  Boiildin:  May  I  inquire  from  my  friend  from  Danville  if  there  is  any  difference 
contemplated  in  the  use  of  the  words  "shifting  stock  of  goodts"  from  ,  a  stock  of  goods. 

Mr.  Green:  A  shifting  stock  of  merchandise  means,  of  course,  a  merchant's  stock 
that  is  being  changed  every  day  by  sales  and  additions,  and  a  growing  business  of 
that  kind.  It  is.  intended  to  be  confined,  and  I  think  is  confined,  to  a  meircantile 
business  and  the  shifting  stock  of  a  mercantile  business. 

Mr.  Bouldin:    It  is  intended  then  to  apply  to  all  mercantile  goodsi? 

Mr.  Green:  Yes;  as  suggested  to  me  by  the  gentleman  from  Richmond  (Mr.  Mere- 
dith) it  is  the  very  expression  used  by  the  Coiurt  of  Appeals  in  the  case  of  Sharplese 
vs.  Rose,  as  applying  to  goodsi  which  ought  tO'  be  exemipt. 

Mr.  Hunton:  I  desire  to  ask  the  chairman  of  the  committee  whether  the  word 
"shifting"  in  that  sense  means  anything.  Is  not  a  stock  of  goods  necessarily  shifting, 
and  does  not  the  introduction  of  the  w^ord  "shifting"  only  leave  the  matter  open  for 
construction  by  the  courts?  Is  not  a  stock  of  merchandise  a  necessarily  shifting  stock? 
I  am  asking  for  information. 

Mr.  Green:  I  do  not  think  so.  A  man  might  close  up  his  businesis  and  pay  all 
his  debts  and  still  have  a  stock  of  merchandise  which  he  is  going  to  dispose  of.  A  man 
might  die  leaving  a  stock  of  merchandise  with  no  debts.  The  busiiness  is  not  going  on. 
The  stock  itself  is  not  shifting  and  changeable,  but  it  would  still  be  a  stock  of  goods 
or  a  stock  of  merchandise,  in  my  opinion,  and  would  have  tO'  be  sold  oiut;  but  it  is 
intended  to  confine  this  to  a  changing,  growing  business,  and  that  a  man  shall  not 
claim  exemption  in  a  case  of  that  kind. 

Mr.  Hunton:  But  if  there  were  no  debts  the  homestead  would  not  be  applicable 
at  all. 

Mr.  Green:    I  am  not  sure  about  that. 
Mr.  Hunton:    I  think  so. 

Mr.  Green:    But  still  there  would  be  a  distinction  between  that  stock  and  the  other. 


DEBATES  OF  THE  COX.STITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2^099 

Mr.  Stebbins:    I  move  that  the  word  "shifting"  be  stricken  out.    It  seems  to  me 
that  b}'  the  very  nature  of  the  case  a  stock  of  merchandise  is  necessarily  shifting. 
Mr.  Pollard:    May  I  ask  the  chairman  of  that  committee  a  question? 
Mr.  Green:  Certainly. 

Mr.  Pollard:  Is  not  the  term  "a  shifting  stock  of  goods"  used  and  defined  in  the 
Rose  case  by  tlie  Supreme  Court  of  Appeals  of  the  State? 

Mr. 'Green:  I  have  just  said  so.  The  gentleman  from  Richmond  (Mr.  Meredith) 
mentioned  that. 

The 'Chairman:    The  gentleman  from  Halifax  (Mr.  Stebbins)  moves  to  strike  out 
the  word  "shifting"  in  the  second  line  of  the  section. 
The  amendment  was  rejected. 

Mr.  James  W.  Gordon:  I  move  to  amend  Section  2  by  adding  thereto  these  words; 
"Nor  in  any  property  the  conveyance  of  which  has  been  set  aside  on  account  of  a 
fraud  or  want  of  consideration." 

It  seems  to  me,  Mr.  Chairman,  if  there  is  one  blot  upon  our  law  it  is  the  fact  that 
a  man  in  Virginia  can  ma.ke  the  most  fraudulent  conveyance  of  his  property;  make  all 
kinds  of  shifts;  that  he  can  absolutely  convey  the  legal  title  to  his  property  away,  and 
then  come  in  after  the  conveyance  has  been  set  aside  and  claim  that  property  as  exempt 
under  the  homestead  law.  "  It  is  a  proceeding  which  our  own  courts  have  condemned 
in  unmeasured  terms,  but  which  they  have  been  obliged,  under  the  provisions  of  the 
homestead  article  in  the  Constitution,  to  enforce.  This  is  a  matter  of  simple  good 
faith  in  the  business  community.  If  a  man,  with  the  intent  to  defraud  his  creditors, 
goes  to  work  and  makes  shifts  and  conveyances  which  cover  up  his  property  and  tries 
to  screen  it  from  his  creditors,  it  seems  to  me  he  ought  not  to  be  given  any  advantage 
by  being  allowed  afterwards  to  take  that  property  out  of  the  hands  of  the  donee,  and 
claim  it  as  his  own  property  and  exempt. 

Mr.  Quarles:    May  I  ask  the  gentleman  a  question? 

Mr.  James  W.  Gordon:    Yesi,  sir. 

Mr.  Quarles:  Is  not  the  homestead  exemption  intended  for  the  benefit  of  a  man's 
family  as  vrell  as  for  his  own  benefit,  and  ought  his  fraudulent  act  to  prevent  such  pro- 
tection of  his  own  family? 

Mr.  James  W.  Gordon:  Yes  sir;  and  I  will  say  that  while  that  may  be  the  intent 
of  all  tile  homestead  provisions,  there  never  has  been  a  law  Vv'hich  has  so  signally 
failed  to  carry  out  its  intention.  The  homestead  exemption,  as  we  have  it  administered 
in  Virginia  to-day,  is  a  mere  cloak  for  fraud  in  probably  eight  cases  out  of  ten.  When 
a  man  indicates  his  purpose  to  defraud  his  creditors  by  making  this  kind  of  convey- 
ance, he  ought  not  to  have  a  double  show  at  his  property  by  coming  in  and  claiming 
it  as  exempt  after  the  conveyance  has  been  set  aside. 

Mr.  Barbour:  Mr.  Chairman,  I  rise  merely  for  the  purpose  of  stating  that  I  concur 
fully  in  the  remarks  made  hy  the  gentleman  from  Richmond,  and  I  hope  that  this 
amendment  will  be  adopted.  I  will  call  the  attention  of  the  committee  to  the  fact  that 
the  adoption  of  this  provision  could  have  no  effect  upon  homestead  exemptions  which 
have  already  been  claimed,  as  under  the  provisions  of  Section  4  this  does  not  in  any 
way  affect  any  homestead  exemptions'  already  claimed.  It  would  only  apply  to  cases 
arising  hereafter. 

I  state  tliat  for  the  purpose  of  calling  the  attention  of  the  committee  to  it,  and 
because  of  the  additional  fact  that  I  am  counsel  in  cases  involving  this  very  question, 
and  I  wish  it  to  be  understood  that  I  am  not  in  any  way  influenced  by  the  fact  that 
I  am  counsel  in  those  cases  in  my  attitude  on  this  question;  because  this  provision 
cannot  possibly  affect  it. 

I  will  state  further,  Mr.  Chairman,  that  it  seems  to  me  the  theory  upon  which  the 
Supreme  Court  has  gone  in  permitting  homesteads  to  be  claimed  in  fraudulently 
conveyed  property  is  all  wrong  and  is  contrar^^  to  the  principle  upon  which  the  theory 
of  setting  aside  conveyance  is  based.    As  I  understand  the  matters  of  setting  aside 


2100  DEBATES  OF  THE  COKSTITUTIOisTAL  CON"VEI^TION"  OE  VIEGI2TIA. 


fraudulent  conveyancesi,  a  court  has  no  right  to  set  aside  a  conveyance  except  as  between 
a  creditor  and  a  debtor,  and  if  the  creditor  has  no  right  in  the  property,  then  the  court 
cannot  set  aside  the  deed,  but  only  sets  it  aside  for  the  purpose  of  permitting  the 
creditor  to  assert  his  rights  against  it.  Under  this  decision,  as  announced  by  the 
Supreme  Courts,  I  may  convey  my  property  to  a  third  party  in  fraud,  and  I  can  in  no 
way  get  it  back  if  I  am  not  indebted,  but  if  I  am  indebted  and  the  creditor  chooses 
to  bring  a  suit  to  set  aside  that  conveyance,  the  court  will  set  aside  the  conveyance, 
revest  the  property  in  me  and  then  permit  me  to  claim  the  homestead  exemption  in  it. 
That  is  not  right,  and  it  is  contrary  to  all  sound  principle.  The  effect  of  this  provision 
is  that  if  a  man  parts  witli  his  property  he  parts  with  it  for  good,  and  the  question 
then  only  arises  as  between  the  creditor  and  the  grantee  as  to  which  has  the  best 
right  to  that  property.  The  debtor  hims.elf  having  parted  with  all  his  right  to  it,  the 
only  question  which  then  remains  is  as  to  who  has  the  best  right  to  it,  the  fraudulent 
grantee  or  the  creditor,  and  as  between  those  parties  I  can  say  there  can  be  no  doubt 
but  that  the  creditor  has  a  better  claim  to  the  property  than  the  fraudulent  grantee. 

Mr.  Carter:    Suppose  the  grantees  are  the  wife  and  children? 

Mr.  Barbour:    It  would  be  the  same  thing.    The  principle  is  the  same. 

Mr.  Carter:    You  would  take  i'E  away  from  them  any  way. 
'  Mr.  Barbour:    Yes,  sir;  it  would  just  put  a  stop  to  that  thing.    It  is  "heads  I  win 
and  tails  you  loose"  under  that  provision,  and  it  ought  not  to  be  so. 

Mr.  Meredith:  I  suggest  also  to  the  gentleman  from  Culpeper  that  the  law  gives 
the  debtor  an  honest  way  of  proceeding  by  taking  a  homestead.  If  he  prefers  a 
dishonest  way  of  proceeding  and  the  property  is  set  aside,  surely  he  nor  .nobody  else 
ought  to  be  allowed  to  claim  it  again,  because  it  just  ties  the  hands  of  the  creditor 
and  prevents  him  from  making  any  fight.    He  knows  that  if  he  wins,  he  looses. 

Mr.  Barbour:  Certainly.  If  he  and  his  wife  attempt  to  defraud  a  creditor — and 
they  must  do  it  to  carry  out  the  case  stated  by  the  gentleman  from  Hanover  (Mr. 
Carter) — neither  would  have  any  right  or  any  equity  to  be  restowed  to  their  right. 

Mr.  Summers.  Mr.  Chairman,  I  appreciate  the  remarks  of  the  distinguished  gen- 
tleman w^ho  have  spoken  on  the  other  side,  but  I  think  they  lose  sight  of  the  law  and 
the  object  of  it.  The  object  of  the  homestead  law  of  Virginia  is  not  for  the  protection 
of  the  men.  It  is  for  the  protection  of  the  helpless  women  and  children,  and  the  pros- 
perity of  all  the  States  of  the  Union  are  known  by  the  extended  limits  of  the  home- 
stead exemptions.  Now,  I  am  opposed  to  making  helpless  women  and  helpless  children 
dependent  upon  the  misconduct  of  a  man,  and  when  the  gentlemen  have  lived  as  long 
as  I  have  and  have  seen  the  inetSciency  and  perfidy  of  mankind  you  will  never  hazard 
the  living,  the  home,  the  cover  of  a  poor  woman  because  of  the  turpitude  of  a  man. 
That  is  right,  and  it  is  God's  truth. 

The  gentlemen  say  that  because  I  make  a  transfer  to  my  wife  and  that  is  fraudulent, 
my  wife,  in  her  old  age,  and  her  children  should  be  put  as  waste  upon  the  earth  because 
of  my  perfidy.    It  is  not  law,  it  is  not  equity,  and  it  is  not  the  intention  of  the  law. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  the  inspired  gentleman  from  Washing- 
ton (Mr.  Summers)  and  the  gentleman  from  Accomac  (Mr.  Wescott),  it  seems  to 
me,  have  both  fallen  into  error,  in  setting  up  a  mere  theory  against  the  practical 
demonstration  of  the  operation  of  this  law  in  the  State  of  Virginia.  They  say  that 
this  homestead  is  to  be  beld  not  only  for  the  benefit  of  the  claimant,  but  of  his  wife 
and  family.  That  may  be  the  intention  of  the  law,  but  how  does  it  operate  under 
such  circumstances  as  are  contemplated  in  the  amendment?  If  a  man  who  makes  a 
fraudulent  conveyance  of  property  to  his  wife,  say,  and  that  conveyance  is  set  aside 
at  the  instance  of  his  creditors,  his  wife  cannot  get  it,  because  as  between  her  and 
the  creditors  the  creditors  have  a  prior  right  to  it,  and  it  gets  back  in  the  hands 
of  the  very  man  v>^ho  made  the  fraudulent  conveyance;  and  a  man  who  will  be 
guilty  of  this  kind  of  fraud  is  the  very  man  who  will  fail  to  make  adequate  pro- 
tection for  his  family  out  of  that  property. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOX  OE  VIEG.IXIA. 


2101 


Mr.  Barbour:  I  suggest  to  the  gentlemaii  further  that  this  same  man  is  per- 
mitted to  -^^aive  the  homestead  exemption  at  any  time. 

Mr.  James  W.  Gordon:  Yes,  he  is  permitted  to  waive  the  exemption  at  any  time, 
and  it  seems  to  me  there  can  be  no  more  definite  way  in  which  he  could  attempt  to 
waive  it  than  by  conveying  it  away  from  himself. 

Mr.  Chairman,  we  are  putting  a  premium  upon  fraud  in  Virginia,  unless  this 
constitutional  provision,  which  is  hard  enough  in  its  operations,  anyhow,  has  some 
safeguards  thrown  around  it.  The  gentleman  says  that  the  costs  of  litigation  are 
sufficient  to  deter  a  man  from  making  a  fraudulent  conveyance  of  his  property  

Mr.  Wescott:  Will  the  gentleman  pardon  me?  I  deprecate  having  to  interrupt 
the  gentleman,  but  I  did  not  make  any  such  statement.  I  said  merely  that  the  law, 
in  its  present  status,  imposes  a  penalty  in  the  matter  of  cost  and  expenses  of  litiga- 
tion. I  did  not  say,  however,  the  penalty  w^as  sufficient  to  deter  individuals  from 
fraudulent  conveyances,  and  therefore  I  submit  that  the  gentleman  is  incorrectly 
quoting  me. 

Mr.  James  W.  Gordon:  I  admit  that  the  gentleman's  language  was  as  he  has 
just  stated,  but  I  think  the  natural  inference  was  that  this  penalty  in  the  nature 
of  costs  was  a  sufficient  deterrent  to  relieve  the  community  from  any  practical  diffi- 
culty in  the  way  of  fraudulent  conveyances.  It  has  not  been  in  the  past,  and  be- 
sides, we  must  consider,  gentleman  of  the  committee,  that  those  costs  do  not  fall 
alone  upon  fraudulent  claimant.  They  fall  upon  the  man  who  in  attempting  to 
enforce  his  legal  rights  against  one  who  has  defrauded  him,  and  they  fall  more 
heavily  upon  him  because  he  is  all  the  time  going  down  into  his  pockets  and  taking 
out  good  money  to  send  after  bad.  The  other  man  is  paying  his  costs  out  of  the  disputed 
property. 

Mr.  Chairman,  I  desire  to  call  the  attention  of  the  gentleman  from  Accomac  to 
the  fact  that  on  the  floor  of  the  Committee  of  the  Whole  he  made  a  most  strenuous 
and  successful  fight  in  favor  of  what  he  conceived  to  be  a  great  principle  in  the 
Bill  of  Rights,  which  gave  to  persons  whose  property  had  been  taken  or  damaged 
for  public  uses  just  compensation.  There  is  only  one  principle  upon  which  these 
homestead  exemptions  are  allowed,  and  that  is  on  the  principle  of  public  policj^; 
and  yet  he  says  that  a  man's  debt,  which  is  as  much  property  as  his  land,  shall  be 
confiscated  practically  without  any  compensation  whatever.  It  is  taken  on  the  theory 
that  the  community  ought  to  be  relieved  of  the  public  charge  of  supporting  those 
who  are  divested  of  all  their  property;  yet  there  is  absolutely  no  protection  given 
to  this  class  of  property,  and  he  has  contended  most  strenuously  as  to  the  other 
class  of  property.  I  say  that  if  we  put  any  such  provision  as  that  in  the  Consti- 
tution, we  ought  to  safeguard  it  at  least  in  this  respect,  that  no  man  shall  be  en- 
titled to  this  exemption  unless  he  comes  into  court  with  clean  hands.  That  is  the 
only  case  of  which  I  know  in  which  a  man  can  come  into  court  and  plead  his  fraud 
as  a  title  to  property.  I  say  it  is  wrong  in  principle,  and  it  tends  to  degrade  and  de- 
bauch our  commercial  intercourse  with  each  other. 

I  hope,  gentlemen,  that  you  will  not  only  recognize  the  great  principle  of  public 
policy  embodied  in  the  committee's  report,  but  that  you  will  also  recognize  the  great 
principle  of  public  morality  that  is  recognized  in  the  amendment  which  I  have  sent 
to  the  desk. 

Mr.  Green:  Mr.  Chairman,  it  is  well  enough  for  us  to  understand  that  the 
whole  doctrine  of  homestead  protection  is  for  the  betterment  of  modem  philanthropy. 
If  the  speech  of  the  junior  gentlem.an  from  Richmond  (Mr.  Gordon)  had  been  made 
at  a  time  when  men  were  imprisoned  for  debt,  I  w^ould  not  have  been  surprised  at 
it;  but,  sir.  the  world  has  been  advancing  in  the  protection  of  Its  people  and  the  ele- 
vation of  its  citizens  by  means  of  philanthropic  laws  and  methods.  It  is  too  late, 
it  seems  to  me.  for  Virginia  to  set  herself  to  curtailing  them  and  breaking  them 


2102  DEBATERS  OF  THE  C0X8TITUT10XAL  COXVEXTIOX  OF  VIKGIKIA. 

down.  However  much,  the  gentleman  from  Washington  (Mr.  Summers)  m^ay  be 
called  inspired,  he  certainly  fell  upon  the  truth  when  he  said  that  the  objects  of  this 
law  were  two-fold,  one  to  protect  the  helpless,  and  the  other,  and  a  far  higher  one, 
to  protect  the  State  itself  against  poverty  and  degradation  and  loss  of  good  citizen- 
ship and  crowded  poor-houses. 

The  arguments  which  have  been  urged  against  the  morality  of  the  law  which  so 
shocks  the  gentleman  from  Culpeper  (Mr.  Barbour)  and  the  gentleman  from  Rich- 
mond (Mr.  Gordon)  have  been  urged  just  as  strongly  against  the  courts  ever  holding 
that  vvheu  a  deed  is  set  aside,  the  homestead  still  continues  in  the  property,  before 
almost  every  court  in  this  Union,  and  I  take  it  for  granted  that  the  gentlemen  in 
those  cases  considered  those  moral  questions  that  are  now  being  urged;  and  the 
Supreme  Court  decided,  the  gentleman  from  Culpeper  says,  wrongly,  but  rightly,  I 
think — all  the  courts,  at  any  rate,  differ  from  the  gentleman  from  Culpeper — that 
there  was  no  wrong  or  fraud  in  a  conveyance  of  that  kind  that  ought  to  prevent  the 
homestead.  Why  should  it  prevent  it?  The  gentleman  from  Culpeper  (Mr.  Bar- 
bour) has  a  curious  idea — I  suppose  it  is  necessary  for  the  cases  in  which  he  says 
he  is  engaged :  and  I  do  not  mean  that  it  applies  to  his  position  here,  but  he  has  it 
in  his  head  from  arguing  those  cases — that  when  a  fraudulent  deed  is  set  aside,  the 
title  remains  somewhere  in  the  grantee  or  the  grantor.  The  court  simply  declares 
that  the  title  remains  where  it  was;  that  the  deed  is  a  nullity;  that  there  is  no  deed. 
It  stands  exactly  in  the  same  position  as  if  it  had  never  been  written  upon  paper 
or  gone  before  a  magistrate.    The  whole  thing  is  a  nullity. 

Mr.  Barbour:  Does  the  gentleman  undertake  to  say  that  the  court  sets  aside 
a  deed  further  than  is  necessary  to  pay  the  creditors? 

Mr.  Green:  Yes;  I  say  it  sets  it  aside  as  absolutely  null,  but  as  between  a 
fraudulent  grantee  and  a  fraudulent  grantor,  neither  one  has  any  standing  in  court. 

Mr.  Barbour:  I  think  the  gentleman  is  mistaken  if  he  asserts  the  debtor  can 
get  that  property. 

Mr.  Green:  All  I  can  say  is  that  if  you  base  the  cases  you  are  going  to  try  on 
that  theory-,  the  court  will  be  against  you  and  you  will  lose  them.  The  court  sets 
aside  the  deed  because  it  is  an  absolute  nullity. 

Mr.  Meredith:  That  does  not  apply  to  all  fraudulent  deeds.  It  applies  only  to 
some. 

Mr.  Green:  It  does  apply  to  all  deeds,  and  I  think  I  can  demonstrate  it  to  you 
before  I  get  through.  As  there  is  nothing  existing,  the  property  is  where  it  was 
before  anything  was  done.  A  vain  act  having  been  attempted,  ao  act  was  com- 
pleted or  carried  into  perfection. 

Mr.  Meredith:  I  do  not  think  the  gentleman  understood  me.  I  say  the  prin- 
ciple of  the  deed  being  absolutely  void  applies  only  to  some  deeds.  There  are  some 
deeds  that  are  absolutely  void  and  others  that  become  void  because  of  the  circum- 
stances. 

Mr.  Green:  Exactly.  I  am  going  to  call  attention  to  that.  Let  us  take  an  in- 
stance of  the  practical  effect  of  the  object  of  these  gentlemen.  Here  is  a  provision 
that  says  if  any  deed  is  made  fraudulently  or  without  due  consideration,  and  it 
shall  be  set  aside,  no  homestead  shall  ever  be  claimed  in  that  property  by  a  man  or 
his  wife  and  children.  That  is  their  provision.  Now  take  this  instance:  Suppose  a 
man  is  an  endorser  for  B,  who  is  worth  five  times  as  much  as  his  endorser,  and  that 
while  an  endorser  for  B  for  $5,000  or  $10,000,  he  makes  a  deed  of  settlement  upon  his 
wife  to  secure  her  a  home  for  herself  and  her  family.  Suppose  B  fails  utterly  and 
cannot  pay  a  cent.  Why,  as  soon  as  that  case  should  occur,  the  young  gentleman 
from  Richmond  (Mr.  Gordon),  or  the  elderly  gentleman  from  Culpeper  (Mr.  Bar- 
bour) (laughter),  would  at  once  rush  into  court  and  say,  "Why,  this  deed  of  settle- 
ment upon  his  wife  was  made  while  he  owed  this  debt."    The  gentleman  would  go 


DEBATES  *0r  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIX'IA. 


2103 


into  court  and  the  court  would  set  it  aside,  and  must  necessarily  set  it  aside,  because 
tlie  voluntary  deed  was  made  without  sufficient  consideration.  He  made  that  settle- 
ment upon  his  wife  when  he  owed  this  debt  as  a  security,  as  an  endorser  for  a  man 
worth  five  times  as  much  as  he^  and  without  any  thought  of  ever  being  called  upon 
to  pay  that  security.  Now,  when  the  deed  is  set  aside  we  are  told  in  this  Conven- 
tion it  is  a  horrible  immorality  if  the  wife  is  allowed  to  claim  a  homestead  in  that 
property. 

Sir,  it  strikes  at  the  very  foundation  of  homesteads.  You  had  as  well  strike  out 
the  homestead  exemption  altogether  as  to  provide  an  entering  wedge  of  this  sort 
which  the  lawyers  would  pursue  until  they  utterly  annihilated  it.  Why,  the  gentle- 
man from  Richmond  (Mr.  Gordon)  offered  a  resolution  earlier  in  the  session  that 
annulled  the  homestead  in  Virginia. 

Mr.  James  W.  Gordon:  I  did  not  offer  any  such  resolution.  I  offered  a  resolu- 
tion which  you  conceive  to  do  that  thing,  but  I  had  no  intention  of  accomplishing 
that  result. 

Mr.  Green:  Well,  I  will  not  go  into  that  question.  At  any  rate,  if  the  gentle- 
man will  allow  me  to  call  his  attention  to  the  fact,  I  think  he  stated  before  the 
committee  that  he  thought  the  whole  homestead  exemption  ought  to  be  swept  out. 

Mr,  James  W.  Gordon:  I  did  say  that,  as  a  matter  of  principle,  but  I  did  not 
offer  any  such  resolution.  I  think  the  whole  thing  is  vicious  in  principle  except  as 
to  a  reasonable  poor  debtor's  exemption. 

Mr.  Green:  I  say,  sir,  that  a  case  such  as  I  have  just  described  of  a  voluntary 
settlement  upon  a  wife  without  a  valuable  consideration,  and  the  depriving  her 
thereby  of  the  right  to  claim  a  homestead,  and  of  her  protection,  seems  to  shock  the 
moral  sensibilities  of  every  man. 

Now,  gentlemen,  I  know  it  is  very  fashionable,  perhaps  it  is  very  honorable,  to 
laud  the  necessity  of  paying  debts.  It  is  a  homely  virtue  that  ought  to  belong  to 
every  man.  The  homestead  exemption  was  never  intended  to  discourage  the  pay- 
ment of  debt.  No  man  can  ever  commit  a  fraud  under  it — to  call  it  a  flat  fraud. 
No  man,  if  you  will  consider  it,  can  ever  commit  a  fraud  under  it,  because  his 
homestead  must  be  recorded  in  the  Constitution  of  the  State,  and  every  man  must  be 
presumed  to  know  he  has  a  right  to  claim  it;  so  that  when  you  deal  with  him,  in 
each  transaction  you  have  with  him  you  have  your  eyes  open,  and  men  who  deal  in 
money  generally  have  their  eyes  open.  You  know  the  fact,  and  you  are  dealing  with 
a  man  across  whose  paper,  every  time  he  gives  it,  unless  you  make  him  put  a  waiver, 
there  is  the  declaration  of  the  law  that  that  paper  is  subject  to  the  homestead  ex- 
emption. 

How  can  a  man  deal  with  another  with  the  knowledge  clearly  in  his  mind  and 
before  his  eyes,  and  then  when  the  law  declares  the  homestead  exemption,  begin  to 
cry  out  like  a  baby  that  he  has  been  defrauded?  Who  has  defrauded  him?  He  has 
known  all  the  time  that  this  homestead  exemption  was  a  legal  and  an  inevitably 
legal  right.  He  dealt  with  him  with  that  knowledge.  Why  should  he  say  he  has  been 
defrauded?  Ah,  but  they  tell  me  that  the  merchants  are  the  men  who  will  be  bene- 
fited by  this.  When  I  go  to  a  merchant  and  run  an  account  with  him  for  three  or 
six  months,  he  can  easily  say  to  m.e,  "I  would  like  for  you  to  sign  a  paper,"  and  he 
can  have  it  printed  just  as  the  bankers  print  their  notes,  "in  which  you  will  agree 
to  waive  the  homestead  exempted  as  to  any  debt  contracted  for  goods."  If  I 
sign  it,  I  cannot  claim  the  homestead.  If  I  refuse  to  sign  it.  that  is  a  full  notice  to 
him  that  I  intend  to  claim  it,  and  he  cannot  say  he  is  defrauded  when  I  do  claim  it. 
There  is  no  possibility  of  any  man  being  defrauded  under  the  homestead  law  of  this 
State,  save  and  unless  he  calls  it  a  fraud  to  get  his  money  and  then  not  pay  it  back 
again,  if  you  cannot  do  it. 

I  agree  with  the  gentleman  from  Westmoreland  (Mr.  Walker)   that  this  is  too 


2104  DEBATES  OF  THE  COA^STITUTIOXAL  CONVENTIO]^  OE  VIRGIAHA, 

small  a  game  for  a  Constitutional  Convention— the  pursuit  of  sporadic  rogues.  It 
does  seem  to  me  that  these  gentlemen  who  are  falling  out  of  line  are  like  a  pack  that 
is  running  a  magnificent  stag  and  one  or  two  little  hounds  fall  out  to  run  a  rabbit. 
(Laughter.)  It  is  entirely  too  insufficient  a  matter.  In  addition  to  that,  gentlemen^ 
I  say  this  question  has  been  thoroughly  considered  under  the  present  Constitution 
by  the  Court  of  Appeals,  and  in  line  with  the  decisions  in  other  State  the  courts  of 
Virginia  have  settled  the  law  on  those  subjects.  I  do  hope  the  Convention  will  not 
attempt  to  unsettle  it  by  adding  the  provision  suggested  by  the  gentleman. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by 
the  gentleman  from  the  city  of  Richmond  (Mr.  Gordon). 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  13;  noes,  38. 

The  Chairman:  Are  there  any  further  amendments  to  Section  2?  If  not,  the 
Secretary  will  read  Section  3. 

Section  3.  The  General  Assembly  shall  prescribe  in  what  manner  and  on  what 
conditions  the  said  householder  or  head  of  a  family  shall  set  apart  and  hold  for  him- 
self and  family  a  homestead  out  of  any  property  hereby  exempted,  and  may,  in  its 
discretion,  determine  in  what  manner  and  on  what  conditions  he  may  hold,  for  the 
benefit  of  himself  and  family,  such  personal  property  as  he  may  have  coming  within 
the  exemption  hereby  made.  But  this  section  shall  not  be  construed  as  authorizing 
the  General  Assembly  to  defeat  or  impair  the  benefits  intended  to  be  conferred  by  the 
provisions  of  this  article. 

Mr.  Waddill:    I  offer  the  following  amendment  to  Section  3: 

Add  at  the  end  of  the  section  the  following  words:  "Nor  to  authorize  a  married  man  to 
waive  the  benefit  of  his  homestead  exemption  in  real  estate  of  the  value  of  a  thousand 
dollars  or  less  without  the  consent  of  his  wife  expressed  in  writing." 


Mr.  Green:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  gentlemen  of  the 
committee  to  the  fact  that  that  section  is  identical  with  the  section  in  the  home- 
stead law  as  it  has  existed  for  the  last  thirty  years  in  Virginia,  that  it  has  been 
considered  very  carefully  and  thoroughly  by  the  Supreme  Court  of  Appeals,  and 
that  the  result  of  this  will  be  to  deprive  the  poor  man,  who  may  have  the  advan- 
tage of  a  homestead,  of  all  credit  whatever  and  prevent  him  using  it  as  he  ought  to 
be  allowed  to  do,  for  the  support  of  his  family.  I  hope  it  will  not  be  adopted, 
language  of  the  present  Constitution.  When  that  Constitution  was  framed  it  was 
Mr.  Waddill:  Mr.  Chairman,  the  language  adopted  by  the  rommittee  is  the 
claimed  a  man  should  not  have  the  right  to  waive  the  effect  of  his  homestead  ex- 
emption at  all  in  any  of  his  property.  I  happen  to  know  that  the  author  of  the 
homestead  exemption  in  the  present  Constitution  contended  that  a  man  could  not 
waive  his  homestead  exemption  at  all,  but  the  courts  decided  otherwise. 

Many  of  these  homesteads.  Mr.  Chairman,  are  the  result  of  the  labor  and  toil  of 
some  good  woman,  and  by  the  decision  of  the  court  a  worthless  husband  can  go  out 
aud  by  signing  a  note  waive  the  homestead  and  deprive  her  of  the  property.  I  did  not 
know  this  proposition  v/ould  be  up  this  morning,  and  therefore  have  not  looked  into 
it  as  carefully  as  I  might,  but  I  know  that  in  some  of  the  State  Constitutions  of  this 
Union  such  a  provision  is  made,  notably  in  the  Constitution  of  the  State  of  North 
Carolina.  Under  such  a  provision  the  community  will  know  that  a  man  who  has 
only  $1,000  of  real  estate,  in  order  to  waive  the  homestead  exemption,  must  have  the 
consent  in  writing  of  his  wife.  I  submit  that  consent  ought  to  be  required;  other- 
wise she  is  deprived  of  her  home  without  any  knowledge  of  it  whatever. 

I  trust  it  will  be  the  pleasure  of  the  committee  to  adopt  the  amendment.  It 
must  result  in  great  good  and  in  the  saving  of  these  homes  to  women  and  children. 
The  homestead  exemption  is  intended  primarily  for  the  benefit  of  women  and  chll- 


I 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA, 


3105 


dren,  and  it  ought  not  to  be  taken  away  from  them  without  their  consent  in  some 
manner  expressed.  If  a  man  wishes  to  deal  with  another  man  who  has  a  thousand 
dollars"  worth  of  real  estate  or  less,  he  must  deal  with  him  with  the  knowledge  that 
his  wife  has  a  right  in  the  property,  and  that  she  must  be  consulted  before  it  can 
be  taken  away  from  her. 

Mr.  Meredith:  Mr.  Chairman,  I  should  like  to  inquire  of  the  gentleman  how 
the  consent  is  to  be  expressed,  whether  by  a  deed  or  on  the  face  of  the  note,  or  how? 
If  a  man  goes  to  buy  a  bill  of  goods  and  he  is  required  to  give  a  note  before  the 
goods  are  delivered,  how  is  it  intended  the  wife  shall  join  in  the  conveyance?  It 
seems  to  me  a  matter  of  perfect  impracticability,  sir. 

Mr.  Green:  That  is  a  matter  for  the  General  Assembly  to  control.  It  has  here- 
tofore controlled  such  matters. 

Mr.  Wescott:  Mr.  Chairman,  I  do  not  wish  to  detain  the  committee  with  any 
suggestions  upon  this  matter  further  than  to  suggest  that  the  adoption  of  the 
amendment  of  the  gentleman  from  Henrico  (Mr.  Waddill)  will  not  leave  the  law 
in  anything  like  a  symmetrical  condition.  Let  us  see  now.  This  inhibition  against 
waiver  under  his  amendment  is  applicable  only  to  the  case  of  a  waiver  by  the  hus- 
band of  a  married  woman  living,  the  married  woman  in  that  instance  being  regarded 
as  the  beneficiary.  If  you  adopt  that,  let  us  suppose  the  husband  is  not  the  head  of 
the  family,  but  is  deceased,  and  the  married  woman  herself  is  the  head  of  the 
family.  Then  the  beneficiaries  are  others  than  the  married  w^oman  herself;  and  if 
you  adopt  this  provision,  you  permit  it  to  be  waived  in  the  one  instance  and  not  to 
be  waived  in  the  other. 

For  that  reason  I  submit  the  children,  who  are  equally  beneficiaries  in  the  case 
I  suggest,  have  no  means  of  consenting  to  the  waiver,  and  the  provision  is  not  sym- 
metrical for  that  reason. 

Mr.  Parks:  In  addition  to  that,  Mr.  Chairman,  it  happens  ver^'  frequently  that 
a  man  who  claims  a  homestead  is  not  a  married  man  at  all  and  has  never  had  a 
wife,  but  there  are  persons  dependent  upon  him,  and  under  the  law  he  is  entitled  to 
claim  the  homestead.  Another  difliculty  also  suggests  itself  to  my  mind:  How  are 
you  going  to  determine  the  value  of  this  land?  Are  3^ou  going  to  take  its  assessed 
value,  or  how  are  you  to  get  at  its  value?  And  if  you  do  not  take  the  assessed  value, 
one  man  may  put  one  value  upon  it  and  another  man  another  value  on  it,  and  when 
you  get  into  court  to  determine  whether  the  party  had  a  right  to  waive  the  exemp- 
tion, it  will  have  to  be  determined  by  the  opinions  of  different  witnesses  as  to  the 
Intrinsic  value  of  the  land. 

Mr.  Portlock:  Mr.  Chairman,  I  desire  to  ask  for  information  and  explanation 
of  the  concluding  clause  of  Section  3.  I  much  prefer  to  have  matters  explained  be- 
fore the  report  is  adopted  than  to  have  to  look  around  for  an  explanation  afterwards. 

The  last  paragraph  in  this  section  provides:  "But  this  section  shall  not  be  con- 
strued as  authorizing  the  General  Assembly  to  defeat  or  impair  the  benefits  intended 
to  be  conferred  by  the  provisions  of  this  article." 

I  am  aware  of  the  fact.  Mr.  Chairman,  that  that  same  provision  is  embodied  in 
the  present  Cinstitution,  but  I  must  confess  I  have  never  understood  what  it  meant. 
I  should  like  to  know  what  really  is  meant  by  the  committee  by  this  clause  as  re- 
ported to  the  Convention.  As  I  lia^-e  said.  I  do  not  know  what  it  means  in  the  old 
Constitution,  for  the  reason  that  it  would  seem  to  provide  that  the  General  Assembly 
may  not  pass  anj'  laws  which  would  impair  or  defeat  the  provisions  of  the  Consti- 
tution relating  to  the  homestead  exemption;  that  is  to  say.  the  General  Assembly 
shall  not  pass  any  laws  which  would  allow  a  man  or  his  family,  or  his  wife  and 
children,  to  be  deprived  of  these  benefits:  and  3"et  we  know  the  General  Assembly  has 
passed  laws  pursuant  to  the  present  Constitution  in  which  a  householder,  the  head 
of  a  family,  is  allowed  to  defeat  the  objects  of  the  clause,  so  far  as  his  wife  and  chll- 
183— Const.  Deb. 


2106 


DEBATES  OF  THE  CONSTITUTIOI^AL  CONVENTION  OF  VIRGINIA. 


dren  are  concerned.  If  this  does  not  mean  he  shall  not  do  that,  then  I  do  not  under- 
stand what  it  can  mean,  because  the  Legislature  is  not  supposed  to  pass  any  laws 
which  can  defeat  or  impair  the  provisions  of  the  Constitution.  I  should  like  the 
gentleman  to  explain,  merely  as  a  matter  of  information,  what  it  means  here  and 
also  what  it  has  meant  in  the  past  in  the  old  Constitution. 

Mr.  G-reen:  The  gentleman  is  aware  of  the  fact  that  the  Supreme  Court  has 
decided  that  it  does  not  prevent  the  Legislature  from  authorizing  homesteads.  So 
that  it  does  not  mean  that.    He  needs  no  explanation  on  that  subject. 

The  intention  of  the  committee,  and  I  suppose  the  intention  of  the  Convention 
prior  to  this,  in  adding  those  words  seems  to  me  to  be  this:  If  you  will  read  the 
former  part  of  this  section,  you  will  see  that  very  large  and  extraordinary  and  ex- 
tensive powers  have  been  bestowed  upon  the  General  Assembly.  For  instance,  the 
General  Assembly  may,  in  its  discretion,  determine  in  what  manner  and  on  what 
conditions  the  householder  may  hold  for  himself  such  property  as  he  may  have  com- 
ing within  the  exemption.  The  General  Assembly  may  also  determine  the  manner, 
and  describe  the  manner  in  which  he  shall  set  it  apart. 

Now,  under  those  large  powers  in  this  section,  the  General  Assembly  might  pre- 
scribe such  manner  and  mode  of  settling  as  to  render  it  impossible  of  accomplish- 
ment. They  might,  by  some  means  adopted  by  them  as  to  the  mode  and  manner, 
impair  the  general  right  to  homestead  in  all  property,  both  real  and  personal,  which 
had  been  provided  for;  and  so  the  provision  was  added  that  the  General  Assembly 
should  not  have  the  power,  in  executing  those  very  large  duties  and  powers  con- 
ferred upon  them,  to  utterly  destroy  and  annihilate  the  homestead  by  placing  around 
it  such  difficulties  in  the  setting  apart  of  it  as  to  defeat  the  benefits  intended  to  be 
conferred. 

The  Chairman:     The  question  is  on  the  amendment  offered  by  the  gentleman 
from  Henrico   (Mr.  Waddill). 
The  amendment  was  rejected. 

Mr.  Barbour:    I  move  the  following  amendment  to  Section  3: 

Amend  Section  3,  after  the  word  "made,"  in  line  8,  by  adding  the  following: 
''No  property  so  set  aside  shall  be  sold  or  exchanged  except  by  deed  signed  by  the 
householder  and  wife  where  that  relation  exists,  as  well  as  by  the  grantee,  and 
except  the  proceeds  shall  be  reinvested,  in  this  State  upon  the  same  uses  under  the 
direction  of  the  grantee." 

Mr.  Barbour:  Mr.  Chairman,  the  object  of  that  amendment  is  to  prevent  this 
homestead  law  from  being  made  an  instrument  of  fraud,  as  far  as  it  can  be  done. 
It  merely  provides  that  a  man  having  claimed  a  homestead  exemption,  when  he  sells 
it  again  or  exchanges  it,  it  must  be  reinvested  in  this  State,  subject  to  the  same  uses 
in  which  the  first  homestead  claimed  by  him  was  held. 

I  have  seen  numberless  cases  of  fraud  arise  under  this  provision  in  pursuance  of 
the  homestead  law.  which  directs  this  very  thing  to  be  done.  It  directs  that  a 
homestead  may  be  sold  and  the  proceeds  reinvested,  but  it  says  that  the  purchaser, 
the  grantee'  of  such  homesteads,  need  not  see  to  the  application  of  the  purchase 
money,  with  the  result  that  a  man  having  claimed  a  homestead,  ?oes  out  and  sells 
it  and  puts  the  money  in  his  pocket  and  does  what  he  wants  with  it.  The  creditor 
whose  rights  under  the  theory  of  the  law  are  merely  stayed  as  long  as  the  house- 
holder and  his  wife  live  and  until  their  children  become  twenty-one  years  of  age. 
may  then  wait  until  doomsday,  and  he  will  never  get  anything,  because  the  man  can 
leave  the  State  if  he  wants  to,  spend  the  money  if  he  wants  to,  or  do  anything  in 
the  world  with  it  except  keep  it  for  his  wife  and  children,  for  whose  benefit  he  is 
given  the  right  to  keep  it.  This  amendment,  if  adopted,  will  shut  that  door  of  fraud, 
and  I  hope  the  Convention,  in  its  wisdom,  may  see  fit  to  adopt  it. 


DEBATES  OE  THE  CONSTITUTIOXAL  CONVENTION  OF  VIRGINIA.  2107 

Mr.  Green:  Mr.  Chairman,  I  simply  desire  to  call  attention  to  the  fact  that  that 
provision  makes  every  man  who  is  the  head  of  a  family  a  trustee  for  the  investment 
of  that  property  for  all  time,  and  utterly  destroys  the  possibility  of  ever  selling  it 
under  any  circumstances,  because  no  man  would  buy  a  piece  of  property  and  as- 
sume a  trusteeship  absolutely.  If  it  should  be  invested  for  all  time  in  this  State, 
it  Y/ould  prevent  the  transfer  of  the  homestead  under  any  circumstances,  and  to 
that  extent  would  cripple  it. 

Mr.  Barbour:  Mr.  Chairman,  the  objection  raised  by  the  gentleman  from  Dan- 
ville (Mr.  Green)  that  it  would  put  on  the  grantee  the  duty  to  see  that  it  is  prop- 
erly applied  is  a  duty  that  is  put  on  everybody  who  ever  buys  a  trust.  They  do  not 
have  to  see  that  the  Investment  remains  good  forever.  They  simply  have  to  use  or- 
dinary prudence  and  see  that  the  property  is  fairly  invested.  It  is  not  an  unfair 
duty  to  impose  on  the  purchaser. 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  gentleman 
from  Culpeper.  . 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  11;  noes,  40. 
The  Chairman:     Are  there  any  further  amendments  to  Section  3?    If  not,  the 
Secretary  will  read  Section  4. 

Section  4.  Nothing  in  this  article  contained  shall  be  construed  as  invalidating 
any  homestead  exemption  already  claimed  under  the  provisions  of  the  former  Con- 
stitution, but  the  same  shall  be  hereafter  held  and  disposed  of  under  the  conditions 
and  provisions  of  this  article;  and  the  provisions  of  this  article  shall  be  liberally 
construed. 

Mr.  Blair:  I  propose  to  following  as  an  independent  section  to  come  in  after 
Section  4: 

The  word  "householder"  or  "head  of  a  family,"  as  used  in  this  article,  shall  be 
construed  as  to  include  both  males  and  females, 

Mr.  Blair:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  simply  offer  that 
section  so  as  to  settle  the  question  in  the  State  of  Virginia  as  to  who  can  claim 
homestead  exemption.  I  do  not  suppose  there  is  an  attorney  who  has  ever  practiced 
at  the  bar  of  this  State  but  who  has  had  cases  where  a  woman  was  rightfully  entitled 
to  claim  the  homestead,  and  under  the  same  circumstances  under  which  the  husband 
or  man  could  have  claimed  it,  but  she  was  prevented  from  claiming  it,  under  the  de- 
cisions, or  rather  the  lack  of  decisions,  in  the  State.  Now,  I  believe  there  is  a  de- 
cision in  the  District  Court  of  the  United  States  holding  that  a  woman  can  claim 
it.  I  do  not  suppose  there  is  any  question  as  to  her  moral  right  to  claim  it  under 
the  same  circumstances  as  a  man,  and  I  think  the  Constitution  should  settle  the 
question. 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  22;  noes,  29. 
The  Chairman:     Are  there  any  further  amendments  to  Section  4?    If  not,  the 
Secretary  will  read  Section  5. 

Section  5.  The  General  Assembly  Is  hereby  prohibited  from  passing  any  law 
staying  the  collection  of  debts  commonly  known  as  "stay  laws;"  but  this  section 
shall  not  be  construed  as  prohibiting  any  legislation  which  the  General  Assembly 
may  deem  necessary  to  fully  carry  out  the  provisions  of  this  article. 

Mr.  Meredith:  I  move  to  strike  out  all  the  five  preceding  sections.  I  do  not 
propose  to  discuss  It.  I  know  the  views  of  the  body,  but  I  think  It  Is  a  wrong  prin- 
ciple. 

The  Chairman:     The  gentleman  from  Richmond  city   (Mr.  Meredith)   moves  to 
strike  out  Sections  1,  2,  3,  4.  and  5. 
The  motion  was  rejected. 


2108 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  Cliairman:    The  Secretary  will  read  Section  6. 

HEIRS  OF  PROPERTY. 

Section  6.  The  children  of  parents,  one  or  both  of  whom  were  slaves  at  and 
during  the  period  of  co-habitation,  and  who  were  recognized  by  the  father  as  his 
children,  and  whose  other  was  recognized  by  such  father  as  his  wife,  and  was  co- 
habited with  as  such,  shall  be  as  capable  of  inheriting  any  estate  whereof  such  father 
may  have  died  seized  or  possessed  as  though  they  had  been  born  in  lawful  wedlock. 

The  section  was  agreed  to. 

The  Chairman:    The  Secretary  will  read  the  next  section. 

ARTICLE  . 

Sale  of  Intoxicating  Liquors. 

Section  1.  First,  No  intoxicating  liquors  shall  be  sold  in  this  State  without  a 
license  therefor  first  obtained. 

Second.  No  license  to  sell  intoxicating  liquors  in  quantities  of  less  than  one  gal- 
lon, or  to  be  drunk  at  the  place  where  sold,  shall  be  authorized  or  granted  in  any 
town  or  county  of  this  State  for  a  period  of  more  than  twelve  months,  nor  without 
the  written  request  of  a  majority  in  number  of  the  legally  qualified  and  registered 
voters  resident  in  the  town,  or  in  the  precinct  of  the  county  wherein  such  liquors  are 
intended  to  be  sold  who  actually  voted  in  the  last  preceding  regular  election  in  such 
towns  or  in  such  precinct. 

Third.  Nothing  herein  contained  shall  be  construed  as  in  any  way  interfering 
with  the  local  option  or  dispensary  laws  existing  in  this  State  at  the  time  of  the 
adoption  of  this  Constitution,  or  as  preventing  the  Legislature  from  prescribing 
additional  requirements,  or  from  passing  or  authorizing  other  restrictive  laws,  rules 
or  regulations,  touching  the  sale  of  intoxicating  liquors,  in  addition  to  the  require- 
ments hereof,  or  from  authorizing  the  sale  of  such  liquors  under  the  direct  super- 
vision and  control  of  local  public  authorities. 

Mr.  Quarles:    I  wish  to  offer  a  substitute  for  Sections  2  and  3  of  this  article. 
The  Chairman:    The  Secretary  will  first  read  the  substitute. 

The  Secretary:  The  member  from  Augusta  (Mr.  Quarles)  proposes  as  a  sub- 
,  stitute  for  Sections  2  and  3  the  following: 

The  Legislature  shall  have  the  full  power  of  enacting  local  option  or  dispensary 
laws,  or  any  other  laws,  controlling,  regulating  or  prohibiting  the  manufacture  or 
sale  of  intoxicating  liquor. 

The  Chairman:  The  gentleman  from  Warren  (Mr.  O'Flaherty)  offers  an  amend- 
ment to  Section  2. 

The  names  of  which  voters  shall  be  posted  ten  days  at  the  court-house  door  of 
the  county,  and  also  in  some  public  place  in  the  precinct  or  town  wherein  liquors  are 
Intended  to  be  sold. 

At  this  point  Mr.  Walker  took  the  chair. 

The  Chairman:  The  gentleman  from  Warren  proposes  to  insert  the  amendment 
which  has  just  been  read  as  an  addition  at  the  second  paragraph  of  the  article. 

Mr.  O'Flaherty:  My  amendment  is  to  add  the  following  words:  "The  names 
of  which  voters  shall  be  posted  for  ten  days  at  the  court-house  door  of  the  county, 
and  also  in  some  public  place  in  the  precinct  or  town  where  such  liquors  are  in- 
tended to  be  sold." 

Mr.  William  A.  Anderson:    Ten  days  before  what  time? 

Mr.  O'Flalierty:  Ten  days  before  the  license  is  granted.  If  there  is  any  doubt 
about  the  language  as  to  the  time  at  which  it  shall  be  posted,  I  will  insert  it.  It 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  A'IRGIXIA.  2109 

refers  back  to  the  language  in  the  section,  but  I  am  perfectly  willing  that  should  be 
perfected.  I  do  not  intend  to  make  a  speech  on  this  subject^  but  simply  to  call  the 
attention  of  the  committee  to  the  fact  that  if  we  are  to  put  this  power  in  the  hands 
of  petitioners  or  voters,  the  public  ought  to  know  who  these  petitioners  are. 

I  am  a  friend  of  temperance,  but  I  am  not  willing  that  this  provision  shall  be 
inserted  in  the  Constitution  as  it  is  now  reported  by  the  committee,  for  the  reason 
that  it  is  possible  for  any  bar-keeper  to  go  around  in  the  average  community  in  the 
State  of  Virginia  with  w^hiskey  in  his  saddlebags  or  a  whiskey  bottle  and  money  in 
his  pocket,  between  sundown  and  sunup,  and  get  the  signatures  of  enough  petitioners 
to  have  the  court  act  on  his  application.  In  other  words,  I  think  that  men  who  put 
their  names  to  a  petition  saying  that  a  bar-room  should  be  established  in  the  com- 
munity ought  to  be  willing  to  have  their  names  posted  in  a  public  place  in  the  same 
community.  I  have  talked  with  a  good  many  temperance  people  on  this  subject,  and 
they  fully  agree  with  me  that  this  Barbour-Quarles  resolution,  as  it  is  called,  and  as 
reported  here,  is  defective  in  that  particular.  I  live  in  a  local  option  town  and  dis- 
trict. Just  recently,  I  understand,  an  attempt  was  made  to  have  an  election.  As  we 
all  know,  a  certain  number  of  petitioners  must  be  gotten  to  petition  the  court  to 
hold  an  election;  and  a  number  of  men  signed  the  petition,  and  when  certain  gen- 
tlemen got  hold  of  the  petition  and  were  about  to  publish  it  in  the  county  papers,  we 
found  the  men  took  their  names  off  as  fast  as  rats  would  get  off  a  sinking  ship. 
They  did  not  want  their  wives  and  friends  to  know  that  they  were  petitioning  the 
court  for  an  election  for  this  purpose. 

If  a  man  is  in  favor  of  a  liquor  license  being  granted,  he  ought  to  have  the  man- 
hood to  have  his  name  posted  in  a  public  place.  I  say,  again,  it  is  possible  for  a 
man  to  go  around  at  night  and  get  a  petition  for  almost  anything.  As  some  one 
has  said,  and  as  I  believe  was  done  in  the  General  Assembly  of  this  State  once  upon 
a  time,  one  gentleman  from  Augusta  got  up  a  petition  to  have  another  gentlemaji 
hanged  (laughter),  and  it  could  have  been  signed,  perhaps,  by  a  majority  of  the 
people  of  that  county.  I  do  not  refer  to  any  present  state  of  affairs  in  Augusta 
county! 

Mr.  Carter:     When  is  that  petition  to  be  circulated?  (Laughter.) 

Mr.  O'Flaherty:  I  do  not  know.  If  you  get  it  up  we  will  see  about  it.  I  want 
it  distinctly  understood  that  I  am  not  endeavoring  to  make  fun  of  this  provision, 
because  I  shall,  as  I  see  it  now,  vote  for  it  if  the  amendment  is  adopted,  but  I  am 
not  willing  to  put  the  people  of  Virginia  in  a  worse  position  than  they  are  in  now. 
It  is  no  hardship  upon  a  man  if  he  wants  a  saloon  to  be  established,  and  places  his 
name  upon  a  petition  that  that  petition  should  be  posted  in  the  community  where 
the  saloon  is  to  be  established,  so  that  everybody  may  know  w^hat  stand  he  takes; 
and  if  he  does  not  w^ant  to  put  his  name  on  the  petition,  he  does  not  need  to  do  so. 

I  talked  with  a  gentleman  some  time  ago,  who  said  that  he  was  going  around 
getting  up  petitions  to  send  here  to  memorialize  the  Convention,  and  it  occurred  to 
him  during  the  time  he  was  getting  them  up  that  here  was  a  defect  that  was  so 
apparent  that  he  absolutely  stopped  and  sent  in  his  petition  without  getting  any 
more  names,  because  he  felt  he  was  not  sure  it  ought  to  pass  in  that  shape. 

I  do  not  want  to  discuss  the  main  issue.  It  is  not  my  fight;  but  if  it  is  to  be 
enacted  into  the  organic  law  of  this  State,  then  it  ought  to  be  so  perfected  that  It 
will  be  effective.  I  was  about  to  offer  an  additional  amendment  that  this  should  not 
preclude  the  court  from  passing  upon  the  fitness  of  the  person  and  the  suitableness 
of  the  plac'j,  and  all  that;  but  that  is  covered,  I  see,  by  other  provisions  of  this  article 
wherein  it  states  it  does  not  prohibit  the  General  Assembly  from  prescribing  addi- 
tional inhibition. 

Mr.  Barbour:  I  suggest  to  the  gentleman  from  Warren  that  the  point  he  Is  mak- 
ing at  present  Is  also  covered  by  the  third  sub-section. 


2110  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

Mr.  O'Flaherty:  That  may  be  true.  I  concede  that  is  possibly  true,  but  that 
might  be  said  of  the  whole  subject  matter,  the  Legislature  could  deal  with  it; 
but  I  think  this  is  so  vitually  necessary  that  it  will  work  for  the  benefit  of  temper- 
ance. It  is  easy  in  a  community  that  is  now  absolutely  free  from  bar-rooms  for  a 
man  to  go  around  and  get  a  petition,  and  come  to  the  court  and  say,  "I  have  a 
majority  of  the  people  of  this  community;  I  want  the  court  to  grant  the  license"; 
and  I  say  that  without  this  amendment  instead  of  this  provision  being  in  the  interest 
of  temperance  it  is  against  it.  If  you  do  not  give  publicity  to  this  petition,  you 
will  find  that  the  people  have  put  in  the  organic  law,  where  they  cannot  change  it, 
the  most  detrimental  and  deleterious  provision  for  temperance  that  has  yet  been 
devised.  I  say  with  due  respect  to  the  temperance  people,  to  the  gentlemen  who  got 
up  this  provision,  I  have  talked  with  gentlemen  who  are  high  in  the  councils  of  the 
temperance  movement,  and  they  agree  with  me  on  this  subject.  I  am  speaking  in 
the  interests  of  temperance.  I  am  not  trying  to  load  it  down  with  any  provision  in 
order  to  defeat  it,  because  I  think  it  ought  to  stand  on  its  merits;  but  in  the  in- 
terests of  temperance  I  do  not  think  the  opportunities  ought  to  be  given  to  a  bar- 
keeper to  go  around  at  night  and  get  signatures  to  a  petition  and  then  to  be  per- 
mitted to  establish  a  bar-room  in  some  place  where  there  may  not  be  bar-rooms  now, 
because,  I  take  it,  that  the  petition  of  the  majority  of  any  of  the  voters  in  any  pre- 
cinct or  town  would  have  very  great  influence  upon  the  judge  of  the  court  that 
would  grant  the  license,  and  I  do  hope  this  amendment  will  be  adopted,  even  though 
the  rest  of  it  might  be  afterwards  voted  down. 

Mr.  Lindsay:  In  view  of  the  ease  with  which  signers  to  a  petition  are  obtained, 
would  not  an  amendment  of  this  kind  meet  the  objections  which  the  gentleman 
from  Warren  urges:  "No  license  shall  be  granted  against  the  written  protest  of  a 
majority  in  number  of  the  legally  qualified  and  registered  voters?"  That  would 
give  to  the  temperance  people  an  opportunity  to  obtain  a  majority  of  signatures 
against  the  granting  of  licenses,  if  such  majority  actually  exists.  I  desire  to  offer 
that  amendment. 

Mr.  O'Flaherty:  I  think  gentlemen  will  see  that  the  vice  in  that  is  what  the 
temperance  people  have  claimed  heretofore,  viz.,  that  the  burden  is  upon  them  to 
keep  the  saloons  out. 

Mr.  Lindsay:  It  is  not  a  burden,  though,  from  your  statements,  and  I  agree 
with  your  statement. 

Mr.  O'Flaherty:  I  wish  to  call  your  attention  to  the  fact  that  the  temperance 
people  of  the  State  desire  to  shift  the  burden  to  the  men  who  seek  to  obtain  the 
license,  and  in  that  I  think  they  are  right.  The  burden  ought  not  to  be  all  on  the 
temperance  people.  This  is  in  the  line  of  local  self-government,  and  nobody  can 
say  anything  against  it  on  that  account;  but  if  I  understand  the  amendment  of  the 
gentleman  from  Albemarle  (Mr.  Lindsay),  the  effect  of  it  would  be  to  shift  the 
burden,  and  it  would  be  similar  to  the  local  option  election. 

Mr.  Lindsay:  As  I  understand,  though,  it  is  not  a  burden.  I  agree  with  you 
fully  in  the  contention  that  the  securing  of  signatures  of  petitions  is  an  easy  matter. 
A  petition  was  gotten  up  in  Augupta  to  "elevate  a  lawyer  to  a  high  position."  I  be- 
lieve that  was  the  wording  of  V  e  petition,  and  when  it  was  investigated  it  was 
found  to  be  a  proposition  to  hang  him.  If  it  is  true  that  you  can  secure  the  names 
to  a  petition  with  ease,  and  you  \s  ant  to  take  away  from  the  bar-keeper  the  oppor- 
tunity to  go  around  at  all  hours  oi  the  night  and  obtain  signatures,  then  I  say  that 
advantage  should  inure  to  the  tenperance  people;  that  they  should  have  the  ad- 
vantage of  taking  around  the  petition,  and  if  the  majority  of  sentiment  in  that  com- 
munity is  against  the  sale  of  whiske)',  I  would  give  to  the  temperance  people  an  op- 
portunity to  obtain  a  fair  expression  of  that  sentiment. 


DEBATES  OF  THE  COXSTITUTIONAL  CONVENTIOJT  OF  VIKGIiv'IA.  2111 

Mr.  O'Flaherty:  You  would  have  a  contest  there  between  two  sides  getting  up 
petitions. 

Mr.  Lindsay:  But  every  advantage  would  be  given  to  the  man  who  was  taking 
around  the  petition.  The  whiskey  people  would  not  know  where  the  temperance 
people  were  working.  They  would  get  the  different  names,  and  the  whiskey  people 
would  not  know  where  to  check-mate  them.  If  the  proposition  is  reversed,  the  same 
would  be  true  the  other  way,  that  the  whiskey  people  would  have  the  opportunity  to 
carry  the  petition,  without  an  opportunity  on  the  part  of  the  temperance  people  to 
know  when,  or  where,  or  upon  w^hom  they  were  working.  I  say  we  will  shift  that 
It  is  not  a  burden,  but  an  advantage  to  the  temperance  people. 

Mr.  Turnbull:  I  desire  to  make  a  suggestion  before  my  friend  from  Warren 
proceeds,  if  he  will  allow  me.  I  have  an  amendment  I  desire  to  offer  to  the  first 
part  of  the  section,  and  if  it  is  adopted,  I  think  it  will  answer  the  purpose  that  the 
gentleman  wants  to  get  at. 

Mr.  O'Flaherty:  I  will  finish  what  I  have  to  say,  and  then  my  amendment  may 
be  voted  on  first,  and  then  your  amendment  will  come  up  if  it  seems  to  be  of  ad- 
vantage. I  wish  to  read  my  amendment,  at  the  request  of  the  gentleman  from 
Petersburg:  .  . 

The  names  of  v/hich  voters  shall  be  posted  for  ten  days  prior  to  the  time  appli- 
cation shall  be  made  for  licence  at  the  court-house  door  of  the  county,  and  also  in 
some  public  place  in  the  precinct  or  town  where  such  liquors  are  intended  to  be  sold. 

I  wish  to  say  in  reply  to  the  gentleman  from  Albemarle  (Mr.  Lindsay),  and 
then  I  shall  be  through,  that  I  get  rid  of  the  difficulty  he  speaks  of  by  precluding 
men  from  putting  their  names  upon  this  petition  unless  they  are  willing  for  every- 
body to  know  it. 

I  say  this  puts  a  burden  upon  the  man  who  wishes  to  establish  the  saloon,  and 
it  gives  publicity  to  the  names  of  the  petitioners  or  voters,  and  if  a  man  does  not 
want  his  name  to  appear,  he  is  not  likely  to  sign  the  petition  my  friend  refers  to. 
Therefore  I  think  my  amendment  would  be  better  than  the  suggestion  made  by  him. 

Mr.  Lincoln:  This  petition  to  the  court  is  a  matter  of  public  record,  is  it 
not?  And  if  so,  would  it  not  be  subject  to  publication  by  any  person  in  the  county 
who  desired  it;  and  does  not  the  gentleman  think  that  the  temperance  people  in  the 
community  would  see  that  the  names  that  were  signed  to  the  petition  for  a  liquor 
license  were  published  in  the  county? 

Mr.  O'Fla-herty:  I  will  answ^er  the  question  by  saying  that  under  these  provisions 
I  do  not  believe  anybody  would  ever  see  a  petition  until  the  session  of  the  court.  A 
man  could  absolutely  hold  the  petition  in  his  pocket  until  the  last  day  and  you  would 
have  no  access  to  it  whatever. 

Mr.  Lincoln:  But  the  temperance  people  would  probably  let  it  be  known  that 
that  list  would  be  published  after  it  was  presented  to  the  court. 

Mr.  O'Flaherty:  I  do  not  think  that  would  have  the  same  effect  as  the  other 
proposition,  though.  The  man  could  keep  the  petition  in  his  pocket  until  the  very 
time  of  the  granting  of  the  license.  It  would  be  absolutely  secret  in  the  hands  of 
the  man  seeking  a  license  for  a  saloon. 

Mr.  Turnbull:  My  fimendment  Is  to  the  second  sub-section  of  the  a.rticle.  The 
second  reads: 

No  license  to  sell  intoxicating  liquors  in  quantities  of  less  than  one  gallon,  or  to 
be  drunk  at  the  place  where  sold,  shall  be  authorized  or  granted  in  any  town  or -county 
of  this  State  for  a  period  of  more  than  tv/elve  months,  nor  without  the  written  re- 
quest of  a  majority  in  number  of  the  legally  qualified  and  registered  voters  resident 
in  the  town. 


^113  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

My  amendment  is  to  strike  out  the  words  in  line  7,  "without  the  written  request 
of,"  and  insert  the  following:  "Unless  the  court  to  which  application  be  made  for 
license  be  satisfied  by  proper  proof  that  a  majority  in  number  of  the  legally  qualified 
and  registered  voters,"  etc.,  so  as  to  make  it  read  as  follows:  "For  a  period  of  more 
that  twelve  months,  or  unless  the  coun  to  which  application  is  made  for  license  be 
satisfied  by  proper  proof  that  a  majority  in  number  of  the  legally  qualified  and 
registered  voters  resident  in  the  town  or  in  the  precinct  of  the  county  wherein  such 
liquors  are  intended  to  be  sold,"  and  strike  out  the  balance  of  the  section. 

I  wish  to  say  a  word,  Mr.  Chairman,  in  explanation  of  my  position  in  regard  to 
the  matter.  So  far  as  I  am  concerned,  my  people  are  not  directly  interested  in  this 
matter,  except  from  the  point  of  view  I  am  going  to  call  to  your  attention.  There 
has  been  no  liquor  sold  in  my  county  for  fifteen  years,  and  that  condition  of  things 
was  brought  about  in  the  manner  I  wish  to  detail  to  you  in  as  few  words  as  possible. 

In  the  town  in  which  I  live,  about  fifteen  years  ago  the  conditions  became  so  bad 
on  account  of  the  bar-rooms,  that  the  bar-keepers  themselves  and  the  people  of  the 
town  asked  the  court  not  to  grant  any  license  within  the  corporate  limits  of  the 
town.  That  was  rather  a  peculiar  state  of  things,  but  nevertheless  it  was  a  fact. 
Thfe  court  then  refused  to  grant  a  license,  and  then  there  came  in  from  the  outside 
of  the  town,  outside  of  the  county  even,  others  who  were  so  anxious  to  sell  liquor  in 
other  towns  that  they  were  willing  to  make  application  to  the  court  for  that  pur- 
pose, notwithstanding  the  fact  that  the  parties  who  had  prior  to  that  time  been  bar- 
keepers there,  and  the  people  of  the  town  had  made  up  their  minds  they  did  not 
want  it. 

The  effect  of  not  granting  a  license  there  was  so  great — officially,  I  mean — that  it 
spread  out  in  the  county,  and  the  bar-rooms  in  the  county  were  gradually  closed  up. 
Now,  what  was  the  result  of  that?  The  result  was  that  these  same  people  from  the 
outside,  notwithstanding  the  people  of  my  county  did  not  want  the  license,  would 
come  there  to  make  applications  to  sell  it  at  a  particular  place,  and  would  prove  they 
were  people  of  good  character,  and  that  the  place  was  as  suitable  and  convenient  as 
any  other,  and  the  court  would  refuse  to  grant  a  license  because  the  people  of  our 
county  did  not  want  it.  An  appeal  would  be  taken  to  the  Circuit  Court,  and  the 
judge  of  our  court,  in  accordance  with  the  spirit  of  the  law,  would  be  obliged  to 
decide  that  if  the  applicant  showed  he  was  a  fit  person  and  the  place  was  a  proper 
place,  the  decision  of  the  County  Court  should  be  overruled  and  a  license  should  be 
granted.  That  decision  was  made  because  the  spirit  of  our  law  was  to  get  revenue 
from  this  license;  and  under  the  law  a  man  only  had  to  prove  it  was  a  suitable,  fit 
and  convenient  place  in  order  to  entitle  him  to  a  license,,  notwithstanding  the  oppo- 
sition of  the  people  in  the  community  to  it. 

Local  option,  and  the  expense  of  local  option,  was  forced  upon  the  people  In  my 
county  at  the  instance  of  these  people,  who,  in  a  number  of  cases,  did  not  live  In 
the  county,  and  I  undertake  to  say  that  the  only  persons  in  my  county  or  in  my 
town  now  who  want  to  sell  liquor  and  who  would  be  willing  to  put  that  evil  upon  our 
people,  and  who  would  make  application  for  a  license,  if  they  thought  there  was  any 
chance  to  get  it,  are  persons  who  reside  outside  of  it. 

As  I  understand  it,  the  amendment  recognizes  the  fact,  as  I  believe,  that  there  is 
not  an  opponent  of  the  sale  of  liquor  or  an  advocate  of  the  sale  of  liquor  in  the 
country  who  does  not  admit  that  these  bar-rooms  in  the  country  are  an  evil,  not 
only  to  the  morals  of  the  community,  but  an  evil  that  directly  affects  the  business 
interests  of  the  community;  and  recognizing  it  as  I  do,  not  only  as  an  evil,  but  as  a 
nuisance,  it  has  piled  up  the  criminal  expense  of  the  State  and  materially  affected 
the  interests  of  those  communities,  I  submit  that  those  people  who  recognize  the  fact 
that  it  is  an  evil  should  not  have  the  evil  put  upon  them  unless  they  want  it;  that 
the  present  condition  of  the  law  should  be  reversed,  and  that  the  court,  in  granting 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2113 

the  license,  should  have  the  discretion  and  the  power  to  decide  upon  this  question  aa 
to  whether  the  people  of  the  community  want  it,  and  if  they  do  want  it,  to  grant  it 
to  them,  but  if  they  do  not  want  it,  it  should  not  be  granted  against  the  protest  of 
all  the  good  people  of  the  community  in  which  the  effort  is  made  to  establish  that 
evil  upon  them. 

That  is  my  proposition,  and,  occupying  that  position,  I  feel  this  amendment  should 
be  adopted,  and  this  principle  should  be  inserted  in  the  Constitution  of  Virginia  for 
all  time.  That  will  recognize  the  principle  I  lay  down,  that  the  communities  in  which 
this  evil  is  attempted  to  be  put  upon  them  should  have  a  voice  in  saying  whether 
those  evils  should  be  driven  away  from  there  or  not,  and  that  the  State  of  Virginia, 
in  order  to  get  revenue  out  of  an  evil,  should  not  put  it  upon  people  who  do  not 
want  it.  The  present  law  puts  upon  those  people  the  necessity,  every  time  an  out- 
sider comes  and  makes  application,  of  having  an  election  to  put  it  out.  Now,  I  say 
they  ought  to  satisfy  the  court  before  they  put  that  evil  upon  those  communities 
that  the  people  want  it.    That  is  the  principle  I  would  insert  in  the  Constitution. 

I  want  to  ask  what  harm  is  there  in  inserting  in  the  organic  law  such  a  principle 
as  that?  Is  there  any  man  in  this  body  who  does  not  recognize  this  evil?  Put  it 
to  your  own  communities  and  your  own  people.  If  they  want  this  evil,  let  them  have 
it,  in  order  that  the  State  may  get  the  revenue;  but  if  they  do  not  want  it,  I  submit 
there  is  no  harm  in  asserting  the  principle  in  the  Constitution  that  no  people  shall, 
against  their  protest,  have  this  evil  put  upon  them,  but  that  there  shall  be  put  upon 
those  who  undertake  to  fasten  the  evil  upon  them  the  necessity  of  showing  that 
these  people  do  want  it. 

Mr.  Portlock:  If  this  is  an  evil,  and  undoubtedly  it  is  a  general  evil  through- 
out the  State  of  Virginia,  why  not  offer  some  amendment  making  a  general  law  for 
its  prohibition  as  to  the  people  at  large  instead  of  some  particular  communities? 

Mr.  Turnbull:  I  do  not  do  so  because  of  the  fact,  as  I  understand  it,  that  some 
people  differ  from  what  I  think.  I  say,  if  there  are  some  people  in  the  State  who 
want  this  evil,  let  them  have  it,  but  do  not  put  it  upon  the  people  in  my  country  who 
do  not  want  it.  Under  the  present  law,  at  the  end  of  two  years  you  can  have  another 
election  and  decide  what  the  people  wish  in  reference  to  it.  This  provision  would 
do  av/ay  with  the  necessity  of  that,  because  it  would  submit  the  matter  to  the  court, 
and  there  is  not  a  judge  in  this  land,  in  my  opinion,  who  would  not  be  glad  to  grant 
the  wishes  of  the  people  where  he  knows  the  sentiment  of  the  people,  and  a  large 
majority  of  them,  of  all  interests,  is  against  this  evil.  He  would  be  glad  to  have  the 
opportunity  to  pass  upon  that  question  and  deny  the  application  if  he  was  satisfied 
the  people  did  not  want  it. 

Mr.  Carter:  Would  not  the  very  best  evidence  the  judge  could  have,  if  he  were 
going  to  find  out  the  wish  of  the  majority  of  the  people,  be  the  petition,  signed  one 
way  or  the  other,  and  would  not  that  be  used  for  one  side  or  the  other  in  order  to 
present  the  case? 

Mr.  Turnbull:  I  do  not  think  so,  because  if  you  are  enabled  in  court  to  pass  upon 
this  question  in  a  judicial  manner,  just  like  any  other  question,  people  could  come 
before  the  court  and  represent  the  facts  on  either  side  intelligently  and  let  the  court 
pass  upon  it  intelligently. 

Mr.  Braxton:  How  far  ought  the  court's  opinion  on  that  matter  be  reviewable? 
I  ask  the  question  for  information. 

Mr.  Turnbull:  The  court's  opinion  on  that  matter  would  be  reviewable  in  such 
a  manner  as  the  General  Assembly  might  prescribe,  so  as  to  give  the  people  the  right 
of  appeal,  just  exactly  as  they  have  it  now  if  they  want  it,  or  in  euch  other  manner 
as  the  General  Assembly  may  prescribe. 

Now,  gentlemen  of  the  committee,  that  is  my  view  in  reference  to  the  matter, 
and  being  of  that  view  and  that  opinion,  I  am  going  to  support  this  resolution,  be- 


2114  DEBATES  OE  THE  COISrSTITUTIOXAL  CONVENTION  OE  VIRGINIA. 

cause,  so  far  as  I  am  concerned,  I  see  no  harm  in  it.  So  far  from  there  being  any 
harm  in  it,  I  think  it  would  put  the  matter  in  exactly  the  position  where  it  should 
be  put,  and  it  would  put  in  the  proper  light,  the  application  of  the  parties  to  sell 
liquor,  because  they  ought  not  to  be  allowed  to  force  this  evil  upon  people  unless 
they  can  show  a  majority  of  them  do  want  it. 

Mr.  O'Flaherty:  You  and  I  agree  as  to  the  defects  here  and  as  to  what  we 
should  get  at;  but  if  I  understand  you  aright,  your  amendment  means  that  either 
side  or  both  sides  would  get  up  a  petition,  because  you  would  have  to  satisfy  the 
court  that  one  side  or  the  other  had  the  majority;  but  it  would  not  give  publicity  to 
the  names  on  the  petition  until  the  case  was  called,  perhaps.  I  want  to  get  with  you 
if  I  can  on  this,  because  we  are  after  the  same  thing.  Do  you  not  think  it  would 
be  better  to  let  the  whole  burden,  as  my  amendment  puts  it,  be  upon  the  man  who  is 
seeking  to  establish  the  saloon,  and  also  at  the  same  time  give  publicity  because  of 
the  fact  that  after  it  is  done  the  whole  matter  is  left  to  the  court?  Without  your 
amendment  by  the  very  language  of  this  act,  it  is  left  to  the  court  to  determine 
whether  they  have  a  majority  or  not;  so  it  seems  to  me  my  amendment  is  preferable, 
because  it  puts  the  burden  upon  the  people  who  want  to  establish  the  bar-room,  and 
also  gives  publicity. 

Mr.  Turnbull:  If  this  amendment  is  adopted,  not  a  word  is  said  about  petitions, 
but  it  just  leaves  the  matter  to  be  passed  upon  by  the  court  like  any  other  question 
is  passed  upon  ,  and  the  mind  of  the  court  would  have  to  be  settled  in  some  way  with 
reference  to  it.  I  think  my  friend's  idea  of  publicity  would  be  accomplished  entirely 
by  the  fact  that  these  parties  would  have  to  go  into  court  with  the  names  of  these 
signers,  if  they  have  a  petition  on  either  side,  and  that  would  give  them  publicity 
sufficient  to  prevent  the  thing  being  gotten  if  a  majority  of  the  people  really  did  not 
want  it. 

I  did  not  say  anything  in  reference  to  my  amendment  as  to  the  latter  part  of 
the  section.  That  is  to  strike  out  the  words  "voting  at  the  last  election"  because  it 
might  be  that  people  have  not  taken  any  interest  at  all  in  the  last  election,  and  have 
not  voted.  I  think  that  part  of  the  section  is  wrong,  and  should  be  stricken  out. 
Therefore  I  move  to  strike  out  the  words  beginning  with  "who"  in  the  latter  part 
of  that  section,  where  it  says  "who  voted  at  the  last  election." 

Mr.  Carter:  Mr.  Chairman,  I  thought  if  there  was  one  subject  that  we  could  not 
by  any  chance  get  into  a  Constitutional  Convention,  it  was  the  subject  of  the  regula- 
tion of  liquor  licenses.  I  thought  the  powers  of  the  State  that  have  been  exercised 
by  the  General  Assembly  for  so  many  years  under  the  police  power  were  universally 
recognized  as  peculiarly  within  the  province  of  a  General  Assembly,  and  altogether 
outside  of  and  beyond  such  matters  as  we  are  called  upon  to  consider. 

I  venture  to  say  there  is  not  a  man  in  this  body  who  ever  had  a  question  asked 
him  about  this  matter  during  his  canvass  for  the  seat  he  occupies.  It  was  not  men- 
tioned, so  far  as  I  know,  in  any  newspaper,  or  at  any  street  corner  or  cross-roads  in 
the  county,  and  to  my  mind  it  is  utterly  out  of  place  in  this  Convention.  That  would 
be  far  enough  to  go  in  our  decision  as  to  whether  or  not  we  ought  to  entertain  this 
sort  of  resolution. 

As  to  the  amendment  offered  by  the  gentleman  from  Warren  (Mr.  O'Flaherty) 
to  publish  or  post  a  list  of  all  those  who  sign  an  application  for  the  sale  of  liquor, 
shall  we  put  that  in  the  Constitution  of  Virginia?  If  so,  shall  we  state  also  in  there 
how  long  that  list  is  to  be  published,  how  many  days  it  is  to  stay  there,  at  how  many 
places  in  the  counties  or  districts  it  is  to  be  put  up,  whether  or  not  if  when  you  stick 
it  up  it  is  a  rainy  day,  and  it  is  washed  down,  it  has  to  be  put  up  again  in  so  many 
days?  Does  not  that  show  the  impropriety  of  putting  this  sort  of  provision  In  the 
fundamental  law  of  the  State? 

Not  only  that,  but  I  say,  Mr.  Chairman,  it  is  a  dangerous  thing  to  publish  such 


DEBATES  OE  THE  COXSTIIUIIOXAL  COXYEXIIOX  OE  VIHGIXIA. 


2115 


a  list,  and  it  is  highly  improper.  Why  one  of  the  dangers  has  been  described  by  the- 
gentleman  himself.  He  said  they  published  a  list  of  people  who  signed  a  petition  to 
vote  against  a  local  option  law,  and  the  women  got  after  the  men  so  strong  that 
they  had  to  seek  cover,  and  stand  not  on  their  order  of  their  going.  I  say  he  himself 
poses  as  an  awful  example  of  the  terror  which  may  be  struck  into  the  male  breast 
by  such  proceedings  as  those,  and  that  that  perhaps  explains  a  thing  that  I.  haye 
been  wondering  at  ever  since  I  have  known  him — how  a  man  of  his  attractive  per- 
sonality and  individuality  could  have  so"  long  remained  a  bachelor.  Ke  has  been, 
afraid  of  the  women.  I  doubt  not  that  some  fair  maiden  is  now  sighing  and  shedding 
tears  on  account  of  what  she  has  been  deprived  of  by  reason  of  that  kind  of  thing. 
(Laughter.) 

Mr.  Chairman,  I  expect  there  is  more  than  one.    I  expect  there  are  three  or  four. 

Y/hat  would  become  of  these  poor  fellov%-s  that  were  put  on  the  list?  The  v/omen 
would  be  after  them.  They  would  be  prayed  for  in  the  pulpits  on  Sunday  as  people 
almost  beyond  redemption.  It  would  destroy^  Mr.  Chairman,  the  secrecy  of  the 
ballot,  where  it  is  most  needed.  I  think  his  amendment  ought  not  to  prevail.  So  far 
as  the  gentleman  from  Brunswick  (Mr.  Turnbull)  is  concerned,  it  seems  to  me  that 
the  present  local  option  law  in  the  State  gives  him  all  the  remedy  he  could  desire,, 
and  certainly  all, he  ought  to  have.  I  will  say  that  the  recommendation  of  the  ma- 
jority of  the  committee— though  there  was  but  a  bare  majority  of  one,  six  out  of  the 
eleven  members  signing  one  report  and  five  the  other — here  carries  with  it,  to  my 
mind,  some  evil  consequences  that  are  perfectly  patent  and  apparent,  and  need  not 
take  more  than  a  few  minutes  to  be  considered. 

The  man  who  wants  to  get  a  license  to  sell  liquor  is  turned  loose  just  before  the- 
time  he  applied  for  it,  with  a  petition  to  go  by  himself  to  see  the  voters  of  his  dis- 
trict. He  may  go,  and  some  of  them  will  go,  with  a  jug  in  one  hand  and  a  petition 
in  the  other.  A  man  will  sign  that  paper  who  otherwise  would  never  think  of  get- 
ting drunk,  and  would  take  more  than  is  good  for  him.  There  is  a  certain  class  who 
could  not  be  approached  in  that  way,  for  the  jug  would  not  get  them.  There  are  some 
more  esthetic  and  more  dainty  in  their  tastes.  They  may  be  approached  with  a  wine 
glass,  with  flowers  on  the  side,  with  mint  and  good  liquor  in  it,  with  a  strawberry 
on  top,  and .  if  that  were  the  case,  I  would  be  afraid  to  trust  the  virtue  of  the  gen- 
tleman himself  who  introduces  this  resolution.  (Laughter.)  And  then,  after  having 
signed  that  paper,  poor,  weak  human  beings  that  they  are,  under  the  inducements 
and  enticements  and  blandishments  brought  to  bear  on  them,  they  go  home,  and 
their  wives  or  their  sweethearts  get  after  them,  and  they  say,  "Oh,  I  did  not  know 
what  I  was  doing;  that  fellow  talked  to  me  so  much,  and  confused  my  head  so,  that 
I  did  not  understand  it,  and  the  thing  is  not  properly  there."  So  there  will  be  liti- 
gation, and  a  case  in  court,  and  every  application  for  one  of  these  licenses  will  lead, 
or  may  lead,  to  half  a  dozen  law-suits.  Why,  instead  of  reducing  the  courts,  and 
having  twenty-four  court  districts  in  this  State,  you  will  have  to  increase  them. 

Mr.  Barbour:  The  gentleman  stated  that  after  having  signed  one  of  these  peti- 
tions, and  going  home,  he  would  have  to  make  excuses  as  to  vv'hy  he  signed  it,  I 
simply  want  to  ask  the  gentleman  if  he  had  that  experience  when  he  went  home 
after  having  signed  this  minority  report.  (Laughter.) 

Mr.  Carter:  3.1r.  Chairman,  that  is  the  most  unfair  question  that  I  ever  had 
asked  me  in  my  life.  (Laughter.)  It  may  be.  if  my  wife  was  here  in  Richmond, 
and  as  close  to  me  as  is  the  wife  of  the  gentleman  from  Culpeper  to  him,  that  T. 
too.  would  be  afraid  to  vote  my  sentiments.  (Laughter.) 

There  is  another  phase  of  the  question.  ]\Ir.  Chairman,  which  should  not  be  lost 
sight  of.  We  are  asked  to  attack  an  interest  in  our  State,  and  it  is  an  interest,  and 
will  be  so  construed,  whatever  you  may  say  to  the  contrary,  which  is  influential, 
compact,  and  well  organized.    We  are  asked  to  put  another  weight  upon  this  vessel 


^116 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


that  is  now  loaded  to  its  gunwales.  We  are  asked  to  jeopardise  whatever  suffrage 
plan  we  may  adopt.  We  are  asked  to  jeopardize  whatever  scheme  of  economy  may 
go  through  this  body;  we  are  asked  to  jeopardize  all  the  improvements,  if  improve- 
ments there  be,  and  there  are  many  that  are  to  be  put  into  this  Constitution,  for  this 
measure.  And  if  I  were  in  favor  of  it  as  an  abstrct  question,  I  would  say:  "The 
sacrifice  is  too  great;  the  price  we  may  have  to  pay  is  too  high;  we  may  lose  all  by 
grasping  at  more  than  we  can  safely  get."  The  gentlemen  who  advocate  this  pro- 
vision feel  the  force  of  that  view.  Ah,  it"  is  said,  "Submit  it  separately."  Will  that 
remedy  it?  I  fear  not.  I  would  rather  submit  it  separately  than  to  have  to  vote  on 
them  together,  but  when  you  get  the  average  man  to  violently  oppose  one  section  of 
this  Constitution,  he  is  mightly  near  in  that  frame  of  mind  when  he  says,  "One  bad, 
all  bad."  We  will  lose  by  it  thousands  of  votes,  and  these  gentlemen  who  want  this 
temperance  legislation  will  go  back,  perhaps,  to  the  very  suffrage  law  that  now  exists, 
and  which  has  often  defeated  them  in  their  local  option  contests.  It  is  unwise.  It 
is  the  rankest  intemperate  temperance  I  ever  knew. 

It  seems  to  me,  Mr.  Chairman,  for  every  reason  of  expediency,  on  the  ground  of 
the  proper  kind  of  a  Constitution  we  ought  to  make,  and  on  the  ground  of  the  evils 
that  may  come  from  it,  this  should  not  be  put  in  our  organic  law.  It  is  an  experi- 
ment, a  new  and  untried  field.  So  far  as  I  know,  no  Constitution  in  the  United 
States  has  this  provision  in  it.  A  Constitution  is  not  the  place  to  try  experiments, 
and  a  Constitution  is  not  the  place  to  fasten  hard  and  fast  rules  which  cannot  be 
changed,  cannot  be  modified,  cannot  be  repealed,  if  their  operation  shows  the  neces- 
sity of  it. 

I  hope,  Mr.  Chairman,  that  the  dangerous  amendment  offered  by  the  gentleman 
from  Warren  will  fail,  and  that  the  substitute  offered  by  the  gentleman  from  Staun- 
ton will  be  adopted. 

Mr.  Garnett:  Mr.  Chairman,  I  want  to  say  that  on  this  proposition  I  stand  very 
much  in  the  attitude  of  the  member  from  Brunswick  (Mr.  Turnbull). 

In  my  own  county,  the  county  of  Mathews,  about  twelve  years  ago  we  had  to 
get  rid  of  whiskey  because  of  its  evil  influences,  and  from  that  time  until  now  the 
temperance  element  in  my  county  has  predominatted  to  such  an  extent  that  the 
whiskey  element  has  never  made  any  effort  to  reverse  the  vote.  Before  that  action 
in  every  little  town  in  my  county  there  were  two  or  three  whiskey  shops,  and  in  the 
whole  county  there  were  about  thirty  or  forty  whiskey  stores  in  a  population  of  about 
8,000  inhabitants.  At  one  time,  sir,  the  people  of  my  county  engaged  in  the  fishing 
and  oyster  industry  thought  a  man  could  not  go  out  on  the  oyster  rocks  or  fishing 
grounds  and  properly  protect  himself  against  the  exposure  incident  to  those  callings 
unless  he  had  whiskey  with  him.  That  was  the  custom  that  prevailed  about  twelve 
years  ago.  The  result  of  that  condition  was  that  we  had  in  public  oflacials  absolute 
failures  and  defaulters,  who  mulcted  the  county  treasury  for  thousands  and  thousands 
of  dollars;  and  one  of  the  best  schools  I  have  ever  known  in  the  State  of  Virginia, 
on  account  of  unfortunate  intemperance  at  the  head  of  it,  was  destroyed  in  our 
county.    Then  the  people  raised  their  voices  and  said,  "We  must  get  rid  of  this  evil." 

In  the  first  fight  we  had  there,  sir,  the  whiskey  element  beat  us  overwhelmingly; 
but  under  the  law  we  had  a  right  to  renew  that  fight  in  two  years;  and  in  my  own 
precinct,  the  largest  whiskey  precinct  in  the  county,  where  we  have  a  registered 
vote  of  700 — it  was  3  o'clock  in  the  afternoon  before  a  single  wet  ballot  was  cast,  and 
we  beat  them  seven  to  one. 

From  that  time  to  this  temperance  has  prevailed  tthere.  Of  course,  we  have 
some  speak-easies  there;  some  scoundrels  persist  in  that;  but  catch  them,  and  we 
mulct  them  in  such  heavy  fines  that  they  do  not  try  it  often. 

I  want  to  say,  sir,  that  we  went  to  work  to  better  that  condition,  and  from  that 
day  until  now  the  respectable  element  of  that  county  is  as  a  unit  as  to  the  sale  of 
whiskey. 


DEBATES  OE  THE  COIN  STITUTIOXAL  COXVEXTIOX  OE  YIHGIXIA.  21U 

I  want  to  make  the  further  statement,  that  I  was  prosecuting  attorney  of  that 
county  for  fifteen  years,  and  I  have  been  its  judge  for  the  past  sixteen  years. 

Mr.  Carter:  I  desire  to  ask  if  the  splendid  condition  to  which  your  county  hai 
arrived  has  not  been  done  under  the  present  law. 

Mr.  Garnett:    Certainly,  under  the  law  as  it  now  stands. 

Mr.  Carter:  Then  you  have  achieved  your  independence  under  the  present  law? 
Mr.  Garnett:    We  have. 

Mr.  Carter:  I  want  to  ask  another  question,  if  the  gentleman  will  permit  me. 
Do  you  not  believe  if  a  proper  suffrage  law  is  passed  for  the  State  of  Virginia,  that 
the  white  people  of  this  State  will  carry  your  good  institutions  into  effect  all  over 
the  State,  and  that  you  do  not  need  the  provision? 

Mr.  Garnett:  I  cannot  tell  whether  it  will  or  not.  I  want  to  say  for  the  benefit 
of  the  negroes  in  my  county  that  they  assisted  the  whites  in  getting  rid  of  that  evil. 
I  want  to  tell  you  a  pretty  good  joke  in  regard  to  that  matter.  I  had  a  negro  living 
on  my  place  by  the  name  of  Bob  Brooks.  We  called  him  "Moonshine"  because  he 
was  an  Albino,  you  know.  (Laughter.)  I  tried  to  persuade  that  fellow  to  stand  by 
me  and  vote  with  us  in  "this  fight  against  the  evils  of  whiskey  selling.  He  was  a 
man  of  religious  principles,  and  an  intelligent  man,  of  fine  moral  character,  and  an 
exhorter  in  the  church,  but  I  could  not  persuade  him  to  do  it.  He  was  one  of  these 
fellows  who  believe  that  every  man  has  a  right  to  do  as  he  pleased,  you  know — and 
I  think  that  is  one  of  the  most  damnable  doctrines  on  earth.  It  is  all  right  for  him 
to  do  as  he  pleases  as  long  as  he  don't  get  on  my  toes;  but  when  he  does,  I  will  lift 
him  off.  (Laughter.)  Well,  I  couldn't  persuade  him  to  go  with  me  in  that  efCort 
which  we  were  making.  Finally  we  got  the  colored  preachers  to  help  us  in  the  fight 
down  there,  and  I  want  to  say,  to  their  credit,  that  the  ministers  of  the  gospel  of  all 
denominations  and  all  colors  stood  together  in  that  fight. 

Mr.  Carter:  How  much  did  it  cost  you  to  get  the  colored  preachers?  (Laughter.) 
Mr.  Garnett:  It  did  not  cost  one  cent;  not  a  solitary  dime  was  spent.  I  want  to 
say  to  the  gentleman  that  we  know  very  little  about  spending  money  down  in  my 
county  in  our  elections.  I  have  held  public  office  there  for  thirty-two  years,  and  it 
has  never  cost  me  one  single,  solitary  dime  from  the  day  I  started  in  until  now,  I 
said  I  used  all  my  persuasion  of  tongue  and  brain  to  persuade  "Bob  Moonshine"  to 
help  in  local  option,  but  I  could  not  get  him  to  do  so.  Finally,  we  had  a  meeting  at 
the  courthouse,  and  we  got  the  colored  preachers  there  talking  on  the  subject.  It  so 
happened  that  some  of  the  whiskey  dealers  down  there  heard  of  it,  and  they  said, 
■'We  are  going  to  rotten-egg  these  niggers  if  you  allow  them  to  ^o  into  the  court- 
house." So  we  went  to  the  church  and  threw  the  church  open  and  said,  "Come  in 
here,  and  we  will  see  whether  you  will  be  rotten-egged  or  not."  Now,  Bob  Moon^ 
shine  was  always  on  hand  whenever  the  preachers  were  to  speak.  He  was  there,  and 
when  the  meeting  was  opened  the  preacher  called  upon  Brother  Bob  Brooks  to  lead 
the  meeting  in  prayer,  and  being  a  religious  man,  he  could  not  pray  for  the  success 
of  whiskey,  and  he  had  to  pray  for  the  success  of  temperance.  And  they  converted 
him,  on  his  knees  in  that  church,  to  the  cause  of  temperance. 

Now,  gentlemen,  I  want  to  say  to  you  that  for  three  years  and  a  half  from  the 
time  we  established  local  option  in  my  county  the  jail  door  keys  of  the  jail  were  not 
turned  in  the  lock.  We  did  not  have  a  man  go  Inside  of  them,  and  the  result  haa 
been  that  in  that  little  county  or  8,000  inhabitants — nearly  9,000  inhabitants  It  has 
now — you  will  find,  if  you  will  examine  the  auditor's  books,  the  criminal  expenses 
last  year  amounted  to  $99  and  some  cents.  It  is  one  of  the  three  counties  in  the 
State  of  Virginia  w^hich  have  drawn  out  of  the  public  treasury  less  than  $100  for 
criminal  expenses. 

I  want  to  reply  to  my  friend  from  Hanover  (Mr.  Carter),  if  I  can,  upon  the  posi- 
tion he  has  taken  here.    He  has  complimented  the  women  of  the  State  of  Virginia  as 


2118  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

I  never  before  heard  them  complimented  by  saying  that  they  all  favor  thia  amend- 
ment that  we  propose  to  put  into  the  Constitution. 

Mr.  Carter:    How  about  scaring  the  gentleman  from  Warren? 

Mr.  Garnett:  I  do  not  know  how  much  it  has  scared  him  in  this  matter;  but 
I  do  not  want  to  treat  it  as  a  trivial  matter.  I  believe  there  are  people  in  the  Com- 
monwealth of  Virginia  whose  voices  should  be  heard  upon  this  matter,  and  they  are 
the  mothers  and  the  daughters.  On  all  questions  of  morality — and  I  do  not  claim 
to  be,  par  excellence,  a  moral  man — and  upon  all  questions  of  that  character,  I  stand 
with  the  women  and  the  preachers  of  the  State  of  Virginia.  As  the  gentleman  from 
Hanover  says,  none  of  these  questions  were  discussed  during  the  campaign;  but  I 
want  to  ask  you,  sir,  if  there  has  been  any  such  deluge  of  peitions  on  any  other 
question  as  there  has  been  pouring  into  this  body  from  every  country  and  every 
neighborhood  and  every  city  of  the  State  as  there  has  flooded  this  Convention  in 
favor  of  a  provision  of  this  character.  What  does  it  mean?  It  means  that  the  public 
conscience  of  the  State  has  been  aroused  to  the  evils  of  this  iniquity  in  such  a  way 
that  there  has  been  a  united  public  opinion  concentrated  upon  it,  such  as  I  have 
never  known  in  all  my  life  upon  any  other  question.  There  is  no  respectable  minister 
of  the  gospel  in  the  State  of  Virginia;  there  is  not  a  mother  that  I  have  known  or 
heard  of  who  is  not  praying  and  working  for  some  amendment  of  this  sort  that  will 
rid  the  people  of  the  Commonwealth  from  the  iniquitous  influence,  the  evil  influence, 
that  my  friend  from  Brunswick  (Mr.  Turnbull)  speaks  of,  growing  out  of  this 
question.  Now.  how  are  we  to  do  it?  The  gentleman  from  Hanover  (Mr.  Carter) 
says  it  is  an  untried  experiment.  In  the  name  of  God,  gentlmen,  it  cannot  be  an 
experiment.  If  it  is,  it  is  an  experiment  that  was  started  by  Thomas  JefCerson  him- 
self in  a  doctrine  which  we  have  all  subscribed  to,  the  right  of  local  self-government. 
We  are  entitled  to  that. 

I  am  in  favor  of  the  amendment  proposed  by  the  gentleman  from  Warren  (Mr. 
O'Flaherty).  In  addition  to  the  publication  of  the  names,  there  Is  this  other  pro- 
tection it  would  give,  that  these  people  who  go  around  with  their  Jugs  and  their 
whiskey  bottles  and  entreat  the  people  to  come  out  and  sign  their  petitions.  I  am 
afraid  sometimes  not  very  particular  as  to  how  many  names  and  whose  names  they 
put  down  on  the  petitions,  and  the  advertisement  of  the  names  would  show  to  the 
people  of  the  community  who  are  the  signers  of  the  petition,  and  thus  prevent  fraud 
in  procuring  signatures. 

I  say,  gentlemen,  that  this  sentiment  is  spreading  over  the  Commonwealth.  Start- 
ing out  twelve  or  fifteen  years  ago,  55  counties  of  the  State  to-day  out  of  100  have 
subscribed  to  the  doctrine  of  temperance,  and  they  are  coming  here  and  asking  th&t 
you  shall  voice  their  sentiments  by  putting  this  provision  In  the  Constitution.  The 
gentleman  from  Hanover  (Mr.  Carter)  says  you  are  antagonizing  a  very  strong  ele- 
ment in  the  community  in  opposition  to  your  Constitution.  I  desire  to  call  his  atten- 
tion to  the  fact  that  when  he  says  that  he  seems  to  ignore  this  concentration  of  public 
opinion  by  the  very  best  people  in  the  State  of  Virginia  in  favor  of  it.  I  want  to  say 
further  that  at  the  meeting  of  the  Anti-Saloon  League  the  other  night  these  gentle- 
men all  favored  this  proposition;  and  one  of  the  most  distinguished  divines  in  this 
Commonwealth,  who  was  present,  said  he  would  advise  and  urge  his  friends  to  vote 
for  the  adoption  of  the  Constitution.  I  do  not  think  that  shows  a  very  illiberal  spirit 
I  think  the  people  have  confidence  in  us,  believing  we  are  sent  here  to  do  the  best  we 
can,  and  that  they  will  support  the  results  of  the  deliberations  of  this  body.  So,  in 
making  your  calculations  as  to  the  Influences  that  will  work  against  us  In  the  event 
we  adopt  this  amendment,  do  not  forget  on  the  other  side  that  there  Is  rising  up  a 
mighty  wave  of  public  opinion  of  the  best  people  in  the  State  of  Virginia  favorable 
to  it,  to  which  we  ought  to  respond;  and  not  only  that,  but  we  know  that  the  influ- 
ence of  the  whiskey  business  is  evil,  and  only  evil.  Tell  me  it  is  an  experiment  mak- 
ing an  effort  to  get  rid  of  it  or  to  keep  it  within  bounds! 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA.  211d 

Mr.  Chairman,  I  hope  the  resolution  of  my  friend  from  Warren  (Mr.  O'Flaherty) 
will  be  adopted.  I  shall  vote  for  that,  and  if  it  is  defeated,  then  I  shall  vote  for  the 
proposition  of  my  friend  from  Brunswick  county  (Mr.  Turnbull.  (Applause.) 

Mr.  O'Flaherty:  Mr.  Chairman,  I  wish  to  make  my  acknowledgment  to  my  dis- 
tinguished friend  from  Hanover  (Mr.  Carter)  for  the  bouquets  he  threw  at  me. 

I  am  glad,  however,  that  I  am  on  the  side  of  the  good  women  of  the  State  in 
ihis  matter,  as  my  friend  has  said  that  I  must  be  on  the  right  side.  I  think  that 
was  a  very  pertinent  question  that  was  asked  him  by  the  gentleman  from  Culpeper 
(Mr,  Barbour),  as  I  see  he  has  signed  his  name  to  the  minority  report,  and  that  in 
itself  indicates  that  we  ought  ever  to  be  able — and  I  do  not  mean  this  as  applying 
to  the  gentleman — to  have  our  acts  such  that  the  sunlight  of  publicity  may  shine 
upon  them  and  that  we  may  not  be  afraid.  I  do  not  believe  this  is  a  question  that 
we  ought  to  settle  here  to-day  by  laughter  or  by  fun  and  frolic.  I  would  not  at- 
tempt, in  a  joust  of  that  kind,  to  pit  myself  against  my  jolly,  jovial,  good-natured 
friend  from  Hanover;  but  I  do  believe  that  under  this  there  is  involved  a  principle 
of  right  and  wrong  that  is  not  violative  of  any  of  the  broad  fundamental  principles 
that  underly  constitution  making.  I  call  attention  to  the  fact,  gentlemen,  that  we 
are  treading  to-day  on  new  ground,  not  only  the  question  of  temperance,  but  on  the 
question  of  corporations,  finance  and  suffrage,  that  no  Convention  in  Virginia  ever 
trod  before.    New  conditions  are  confronting  us,  and  we  are  pioneers. 

I  hope  we  may  not  be  so  lonely  as  pioneers  in  this  matter.  Whoever  before  had 
to  regard  and  consider  the  question  of  a  corporation  commission  in  the  Constitution 
of  Virginia?  And  I  call  on  my  friends  who  have  signed  that  report  to  witness  that 
they  want  support  for  a  brand  new  proposition.  When  before  in  the  history  of  the 
Commonwealth  were  Virginias  called  upon  to  determine  whether  or  not  the  colored 
man  should  be  permitted  to  exercise  the  right  to  vote,  confronted  by  the  13th,  14th 
and  15th  amendments?  I  say  there  does  not  lie  before  us  one  particle  of  ground,  to 
the  end  of  our  deliberations  in  this  body  from  now  on,  that  is  not  new.  The  consid- 
eration of  the  executive,  judicial  and  legislative  departments  of  the  government  has 
been  completetd,  and  if  we  were  situated  like  the  people  of  1851,  we  could  adjourn 
and  go  home.  'Everything  for  us,  I  say,  is  untrodden  ground,  and  there  is  uncer- 
tainty in  it,  but  must  we  hesitate  because  of  that  fact? 

Now,  my  friend  from  Hanover  (Mr.  Carter)  says  it  will  jeopardize  this  Consti- 
tution to  adopt  this  provision.  If  I  remember  correctly  he  is  not  in  favor  of  sub- 
mitting the  Constitution  to  the  people  anyhow.    He  made  a  speech  some  time  ago  

Mr.  Carter:  I  have  not  said  I  was  not  in  favor  of  submitting  it  to  the  people. 
T  argued  merely  in  favor  of  the  power  of  proclaiming  it. 

Mr.  O'Flaherty:  I  agree  with  the  gentleman  on  the  proposition  of  the  power  of 
proclaiming  the  Constitution,  but  I  hope  he  will  vote  to  submit  it  to  all  the  people. 
I  wish  to  say  that,  as  my  friend  has  said,  this  is  a  two-edged  sword,  and  on  the  mere 
question  of  politics  we  cannot  afford  to  drive  the  good  temperance  people  of  Virginia 
from  us,  and  yet  they  have  said  they  are  perfectly  willing  that  the  proposition  In 
this  article  alone  should  be  submitted  to  the  voters  of  Virginia..  That  is  fair.  If  the 
Convention  sees  fit,  it  may  submit  this  question  separately;  but  I  do  insist  on  my 
amendment,  that  the  community  may  know  whether  the  petition  Is  a  &ona  fide  one 
and  whether  you  do  have  a  majority  of  the  qualified  voters. 

My  objection  to  the  amendment  of  the  distinguished  gentleman  from  Bruns- 
wick (Mr.  Turnbull)  is  that  you  have  two  counter  forces  fighting  each  other,  and 
it  is  necessary  to  determine  the  question  of  the  validity  of  two  petitions,  whereas, 
under  my  amendment,  it  is  all  narrowed  down  to  the  question  of  whether  or  not  the 
petition  gotten  up  by  the  saloon  man  has  the  majority  or  not. 

I  desire  to  say  to  the  friends  of  this  measure  on  the  floor  that  I  hope  you  will 


'^120  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

not  give  it  a  black  eye  to  start  with.  Vote  for  this  amendment,  because  on  the  ques- 
tion of  how  this  is  determined  will  depend  many  votes  in  this  body.  I  unhesitatingly 
say  I  do  not  think  I  can  vote  for  this  proposition  as  it  comes  in,  because  it  will  be 
possible  to  get  petitioners  to  put  a  bar-room  upon  people  who  do  not  want  it.  There- 
fore I  hope  you  will  vote  for  the  amendment  I  have  offered. 

Mr.  O'Flaherty:  Mr.  Chairman,  before  the  question  is  put  on  that  amendment  I 
ask  to  have  read  a  fourth  sub-section  which  the  majority  of  the  committee  desires  to 
add  to  the  article. 

The  Secretary  read  as  follows: 

Fourth.  The  above  provisions  shall  not  go  into  effect  nor  become  a  part  of  this 
Constitution  until  and  except  the  same  be  submitted  to  the  qualified  voters  under 
this  Constitution  residing  within  the  limits  of  the  State  affected  hereby,  at  a  sepa- 
rate election  held  for  the  purpose,  and  hereafter  to  be  provided  in  the  final  schedule, 
and  be  ratified  by  a  majority  of  those  voting  at  said  election. 

The  Chairman:  The  Secretary  will  read  the  amendment  proposed  by  the  gen- 
tleman from  Warren. 

At  the  end  of  line  12,  in  sub-section  2,  insert  the  following^  "The  names  of 
which  voters  shall  be  posted  up  ten  days  prior  to  the  granting  of  such  license  at 
the  court-house  door  of  the  county,  and  also  at  some  public  place  in  the  town  wherein 
such  liquors  are  inttended  to  be  sold." 

The  amendment  was  rejected — ayes,  25;  noes,  30. 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman 
from  Brunswick  (Mr.  Turnbull). 

Mr.  Turnbull:  Now,  Mr.  Chairman,  I  want  to  say  a  word  or  two  further,  so 
that  my  position  in  this  matter  may  be  fully  understood.  I  want  it  understood  at 
the  outset  that  I  am  no  fanatic  on  the  subject  of  whiskey.  I  take  a  drink  when  I 
get  ready.  I  keep  it  for  my  friends  at  m3^  house.  It  is  from  a  business  standpoint 
that  I  discuss  this  question,  because  I  think  everybody  else  has  a  right  to  take  a 
drink  whenever  he  gets  ready.  I  am  not  one  of  those  fanatics  who  undertake  to 
control  people  in  that  line;  but  I  do  think  that  when  the  State  of  Virginia  under- 
takes to  license  an  evil  in  the  shape  of  bar-rooms  in  any  community,  the  people  of 
that  community  should  have  a  voice  as  to  the  conditions  in  which  such  evils  shall 
be  placed  upon  them.  I  am  not  opposed  to  a  man  taking  a  drink  when  he  gets  ready, 
although  I  have  a  perfect  contempt  for  a  man  who  drinks  more  than  he  ought  to  and 
cannot  control  his  desires  in  that  respect.  I  cannot  appreciate  how  that  is.  I  have 
never  been  in  that  situation.  But  I  want  you  to  understand  my  position.  The  people 
in  my  communitty  demand  that  before  you  put  this  evil  upon  them  you  shall  let  them 
have  a  voice  in  it  by  requiring  the  man  who  makes  the  application  to  show  to  the 
court  that  a  majority  of-  the  people  desire  it.  The  result  will  be  that  no  outsider 
can  come  into  my  county  to  make  application  for  a  license,  because  he  will  know 
the  majority  of  the  people  of  the  county  do  not  want  It.  He  will  not  go  into  the 
community  of  my  friend  from  Mathews  (Mr.  Garnett)  and  annoy  his  people  in  that 
way,  because  he  will  know  he  stands  no  chance  to  get  a  license;  but  when  he  goes 
to  the  community  of  my  friend  from  Hanover  .(Mr.  Carter)  and  is  satisfied  the 
people  there  do  want  it.  he  can  make  an  entering  wedge  and  put  it  on  those  people. 

Mr.  Carter:  How  would  the  court  determine  what  the  majority  of  the  people 
want?  Would  it  not  be  necessary  to  have  a  majority  of  the  peortle  there  to  testify 
as  witnesses,  and  would  not  that  include  men,  women  and  children? 

Mr.  Turnbull:  Not  necessarily  so,  at  all.  When  you  want  to  prove  any  question 
do  you  have  present  everybody  who  has  any  knowledge  on  the  subject?  Is  there  not 
such  a  thing  as  cumulative  testimony?    When  you  assert  facts  and  undertake  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  TIEGIXIA. 


2121 


prove  them,  you  are  not  bound  to  bring  everybody  who  knows  everything  about  it. 
I  want  to  i3ut  this  thing  in  just  the  same  position  that  any  other  matter  would 
occupy  before  a  court  when  an  application  is  made. 

Mr.  Portlock:  Will  not  your  provision  amount  to  prohibition,  or  if  not  to  a 
prohibition,  to  a  monopoly  on  the  part  oi  certain  people,  residents  of  your  own  county? 

Mr.  Turnbull:  I  am  surprised  that  the  gentleman  from  Norfolk  county  should 
ask  such  a  question  as  that.  Have  not  the  majority  of  the  people  of  the  county 
the  right  to  say  Vv-hether  an  evil  shall  be  put  upon  them?  Is  it  a  monopoly  when  the 
majority  rule?  The  very  foundation  on  which  this  government  rests  is  that  it  is  a 
government  by  the  people,  and  a  majority  of  them  shall  rule.  All  I  want  is  that 
when  a  man  makes  application  for  a  license  to  sell  liquor  the  voice  of  the  people  in 
that  community  who  recognize  the  evil,  who  know  it  is  a  nuisance,  shall  be  heard 
to  say  that  they  do  not  want  it.  Let  me  give  you  an  illustration  in  regard  to  the 
matter  again.  In  my  county,  as  I  say^  every  application  for  a  license  was  refused. 
In  the  county  adjoining  mine,  the  county  of  Mecklenburg,  the  judge  granted  a  license 
to  sell  liquor  at  a  place  just  over  the  border  line,  and  I  undertake  to  say  that  in  the 
two  years  in  which  that  bar-room  on  the  Mecklenburg  side  existed  every  solitary 
criminal  offense  of  any  importance  at  all  came  from  that  town,  and  was  the  result 
of  that  bar-room  being  there.  Then  the  people  of  my  county  came  down  here  and 
got  the  General  Assembly  to  pass  a  law  that  no  liquor  license  should  be  granted 
within  two  miles  of  that  town;  and  I  undertake  to  say  that  the  prosperity  of  that 
town  and  the  people  around  it  demonstrates  the  fact  that  I  am  endeavoring  to  impress 
upon  this  committee  that  it  is  an  evil  from  a  business  standpoint,  besides  being  an 
evil  from  a  moral  standpoint. 

Mr.  Meredith:  Would  not  the  third  section  and  the  second  section  of  this  article 
be  contradictory  of  each  other?  The  third  section  says:  "Nothing  herein  contained 
shall  be  construed  as  in  any  way  interfering  with  the  local  option  or  dispensary 
laws  existing  in  this  State."  It  looks  to  me  as  if  the  third  section  and  the  second 
section  were  cutting  each  other's  throats. 

Mr.  Barbour:  They  provide  different  ways  in  w^hich  to  keep  from  granting  the 
license.    That  is  all 

Mr.  Meredith:  But  you  say  "nothing  herein  shall  interfere  vvith  the  general 
local  option  law  of  this  State."    That  prescribes  where  you  can  get  liquor. 

Mr.  Turnbull:  I  have  never  seen  this  article  until  this  morning  about  fifteen 
or  twenty  minutes  before  the  Convention  assembled.  Therefore  I  have  had  no  oppor- 
tunity to  examine  the  third  section  to  see  whether  there  is  this  conflict  the  gentle- 
man speaks  of  or  not,  and,  so  far  as  the  local  option  law  is  concerned,  I  simply  w^ant 
to  reverse  the  proposition  in  reference  to  it.  There  you  have  to  have  a  local  option 
for  the  purpose  of  getting  rid  of  this  evil.  I  want  to  fix  it  so  that  the  evil  cannot  be 
fixed  upon  a  community  from  a  revenue  standpoint,  unless  the  people  of  that  com- 
munity want  it.  In  other  vs'ords,  I  want  to  put  on  the  man  who  wants  to  establish 
the  evil  the  onus  of  proving  that  the  people  of  the  community  want  it. 

Mr.  Dunaway:  If  the  gentleman  vrill  permit  me.  I  wish  to  say  that  there  is  no 
doubt  the  gentleman  from  Brunswick  is  in  harmony  with  the  committee  on  the 
general  proposition,  and  this  seems  to  be  a  question  of  words.  I  wT^nt  to  ask  if  the 
proper  language  to  use  is  that  the  written  application  shall  be  signed  by  a  majority, 
and  what  is  the  necessity  of  changing  the  words? 

I  would  not  antagonize  the  amendment,  but  I  do  not  see  the  necessity  of  chang- 
ing the  words,  and  I  would  like  to  hear  the  gentleman  from  Brunswick  on  that  mat- 
ter, about  the  difference  in  the  words,  what  it  is.  There  seems  to  be  no  differenc* 
in  principle  at  all. 

Mr.  Turnbull:     Mr.  Chairman.  I  wish  to  explain,  in  answer  to  the  gentleman 
from  Lancaster   (Mr.  Dunaway),  what  my  idea  about  it  is.  and  why  I  offer  this 
134 — Const.  Deb. 


3122  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


amendment.  It  is  to  accomplish  the  very  object  that  is  intended  by  the  gentleman 
from  Warren  (Mr.  O'Flaherty),  except  in  a  different  way.  I  want  to  do  away  with 
the  effect  of  what  my  friend  from  Hanover  (Mr.  Carter)  described  so  graphically  as 
the  way  in  which  these  people  get  names  signed  to  a  petition.  I  want  to  put  it  in 
the  power  of  the  court  to  pass  on  those  questions  as  to  whether  the  evil  should  be 
put  upon  a  community  by  the  granting  of  a  license  when  it  is  not  desired  by  them. 
In  other  words,  I  want  to  put  it  in  the  power  of  the  court  to  examine  into  the  whole 
matter  and  then  pass  upon  the  question  whether  the  license  should  be  granted  or 
not.  If  a  petition  is  allowed  to  come  in  as  the  foundation  for  the  license  at  the 
request  of  the  majority  of  the  voters,  the  court  would  be  bound  to  grant  the  license, 
and  no  inquiry  could  be  made  in  reference  to  it. 

Mr.  Bggieston:  Your  amendment  pro'Vides  that  the  court  shall  be  satisfied 
that  a  majority  of  the  registered  voters  are  in  favor  of  the  granting  of  the  license. 
Now,  a  petition  is  not  legal  evidence.  Would  not  that  necessitate  the  attendance  of 
a  majority  of  those  registered  voters  as  witnesses  when  the  application  is  made?  A 
court  cannot  receive  anything  but  legal  evidence.  So^  would  not  the  result  be 
that  an  applicant  would  have  to  go  into  court  with  a  majority  of  the  registered 
voters  at  his  heels  when  he  made  his  application? 

Mr.  Turnbull:     I  think  not. 

Mr.  Wescott:  If  the  gentleman  will  permit  me,  would  it  not  be  equally  neces- 
sary, under  the  proposed  amendment,  that  those  who  maintained  the  negative  propo- 
sition should  also  present  the  testimony  of  a  majority  of  the  voters  as  being  opposed 
to  the  granting  of  the  license;  and  would  it  not  practically  result,  if  the  amendment 
is  adopted,  in  requiring  every  legal  voter  in  every  magisterial  district,  whenever 
this  question  should  be  raised,  to  be  present  and  testify  in  court  in  order  to  enable 
the  judge  to  determine  this  fact  judicially;  and  is  not  that  a  supposition  that  is 
almost  beyond  seriously  contemplating  in  this  body? 

Mr.  Turnbull:  Mr.  Chairman,  in  reply  to  the  position  taken  by  my  friend  in 
reference  to  this  matter,  I  would  say  that  in  every  instance  where  the  applications 
are  made  now  to  sell  liquor  it  is  necessary  to  show  a  certain  state  of  things.  Then 
you  have  a  fight  over  the  question  as  to  whether  they  are  proper  persons  or  proper 
places,  and  proof  is  introduced  in  reference  to  those  matters.  What  is  that  proof? 
It  is  simply  the  opinion  of  the  people  as  to  whether  it  is  a  fit  place  or  not.  The 
testimony  is  introduced  giving  the  views  of  the  different  people  as  to  what  they  be- 
lieve in  reference  to  this  matter.  The  idea  of  my  amendment  was  simply  to  let  the 
court,  in  its  discretion,  examine  into  this  matter  in  any  way  that  it  should  think 
proper,  and  be  able  to  pass  upon  the  question  as  to  whether  or  not  the  people  of  the 
community  desired  this  evil  to  be  put  upon  them.  The  first  thing  done  by  the  Legis- 
lature in  Mississippi  after  the  new  Constitution  was  to  pass  such  a  provision  as 
this,  except  that  it  was  more  drastic.  It  required  that  no  license  should  be  granted 
in  any  community  except  upon  the  application  of  a  majority  of  the  land  owners 
within  five  miles  of  the  place,  and  left  it  in  the  discretion  of  the  court,  just  as  I 
propose  in  my  amendment  to  do,  as  to  whether  the  license  should  be  granted  or  not. 

I  think  the  amendment  should  be  adopted.  I  cannot  see  what  harm  there  is  In 
it.  You  may  talk  about  going  around  with  a  jug.  You  may  talk  about  mint  juleps 
with  a  cherry  on  top  of  them.  All  this  is  very  nice,  and  the  julep  is  just  as  good 
as  they  talk  about  in  reference  to  it.  I  admit  all  that,  but  I  say  that  when  an 
attempt  is  made  to  put  on  a  community  an  evil  that  affects  its  business  interests 
find  the  good  order  of  the  community,  in  my  judgment  it  should  not  be  done  without 
the  court  being  satisfied  that  the  people  of  that  community  want  that  evil,  and  do 
not  regard  it  as  an  evil,  and  that  you  should  not  force  those  people  to  go  to  the 
expense  of  having  an  election,  but  that  you  should  put  upon  the  man  who  makes 
the  application  the  onus  of  proving  that  it  is  desired  by  the  people  of  the  commu- 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  YIHGINIA.  212o 

nity.  My  amendment  is  simply  designed  to  get  at  a  proper  way  of  ascertaining  that 
question. 

I  know  the  fact  of  my  own  personal  knowledge  that  when  liquor  selling  in  my 
town  was  prohibited,  at  first  there  were  many  in  my  employment  whose  families 
were  in  rags,  because  every  dollar  that  came  out  of  my  pocket  and  went  into  theirs 
in  the  way  of  wages  they  earned  was  spent  between  Saturday  night  and  Monday 
morning  in  the  bar-rooms,  and  their  families  got  nothing.  In  less  than  three  or 
four  months  after  the  saloons  were  closed  up  a  great  difference  was  presented  in 
the  appearance  of  these  people,  and  there  are  many  persons  in  my  town  to-day 
who  will  verify  the  statement  that  business  increased  more  than  a  third  in  the 
first  twelve  months  after  these  bar-rooms  closed  up. 

I  undertake  to  say  there  is  not  a  merchant  in  my  tov/n  who  does  not  recognize 
the  fact  that  the  destruction  of  this  evil  has  had  a  greater  effect  In  building  up  my 
tovvn  than  anything  else  that  has  occurred  there,  notwithstanding  the  fact  that 
there  are  some  people  there  now  inside  the  corporate  limits  who  are  insisting  that 
the  only  way  to  make  a  town  is  to  have  a  bar-room  in  it.  At  the  time  this  evil 
existed  there  was  not  a  lady  in  the  town  or  county  who  was  willing  to  go  into  the 
town  of  Lawrenceville  to  buy  goods  without  having  a  man  along,  an  escort  to 
take  care  of  her,  and  I  undertake  to  say  there  are  ladies  all  over  the  county  and 
the  adjoining  county  who  do  not  hesitate  to  drive  into  town  in  a  buggy  when  they 
want  to  buy  goods  of  the  merchants,  whose  stores  have  increased  more  than  ten 
times  the  size  they  were  when  this  evil  existed  without  any  fear  or  chance  of  being: 
interrupted  by  the  drunken  crowd  that  used  to  hang  around  these  bar-rooms. 

Mr.  Garnett.-  'If  the  gentleman  will  permit  me,  I  should  like  to  interrupt  him 
to  say,  on  that  line,  what  I  forgot  to  say  when  I  was  on  my  feet  before.  There 
were  four  or  five  business  houses  of  considerable  importance  in  the  town  of  Saluda, 
and  it  was  predicted  when  we  drove  whiskey  out  of  that  town  that  business  would 
go  with  it.  Since  that  time  we  have  about  twenty  business  houses  in  the  town, 
and  the  amount  of  business  done  is  five  times  as  great  as  it  ever  was  before.  Be- 
fore whiskey  selling  was  stopped  there  no  respectable  woman  could  be  found  on 
the  streets  of  Saluda  on  Saturday  afternoon  even  with  her  husband  or  friends  on 
account  of  the  obscene  or  rude  talk  she  would  hear.  Since  whiskey  selling  has 
been  stopped  there  has  been  absolute  peace  and  good  order. 

Mr.  TurnbuU:  I  listened  to  my  friend  from  Hanover  (Mr.  Carter)  as  I  always 
do,  with  a  great  deal  of  interest,  because  I  have  the  highest  opinion  of  his  judg- 
ment and  ability;  but  when  he  undertakes  to  come  before  the  Convention  and  say 
that  if  a  certain  provision  is  put  into  this  Constitution,  a  certain  class  of  people 
will  not  support  it,  it  is  time  for  men  who  think  as  I  do  to  express  their  sentiments 
in  reference  to  that  matter.  I  believe  a  majority  of  the  country  communities  of 
the  State  believe  that  something  should  be  done  to  rid  them  of  this  evil  fastened 
upon  them  by  the  State.  You  must  take  into  consideration  the  other  side  of  that 
matter,  and  the  people  of  the  different  communities  who  have  at  heart  the  interests 
and  the  upbuilding  of  the  old  State  are  going  to  have  a  voice  in  saying  what  you 
shall  do  in  reference  to  the  adoption  of  a  Constitution  when  you  turn  down  this 
most  reasonable  request  that  they  make.  It  is  not  a  request  to  turn  down  bar- 
keepers; it  is  not  opposing  the  liquor  traffic;  but  the  State  of  Virginia  has  fastened 
this  evil  upon  our  people,  and  it  is  simply  asserting  a  principle  in  the  Constitution 
that  the  State,  in  order  to  get  revenue,  shall  not  fasten  that  principle  on  any  com- 
munity unless  a  majority  of  the  people  of  that  community  want  it.  I  ask  the 
gentlemen  of  the  Convention,  before  they  undertake  to  deny  to  the  people  the  in- 
sertion of  that  principle  in  the  Constitution,  to  weigh  this  matter  well. 

Gentlemen,  I  do  not  speak  on  this  subject  without  carefully  considering  it.  I 
have  given  my  best  thought  in  reference  to  it.    I  am  as  much  opposed  to  hamper- 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


ing  people  in  their  rights  as  any  man  within  the  hearing  of  my  voice  or  in  the 
State  of  Virginia;  but  when  we  say,  as  a  simple  business  proposition,  that  this  is 
an  evil,  as  is  acknowledged  by  all,  which  interferes  with  the  business  of  the  com- 
munity and  increases  the  criminal  expenses  of  the  community,  and  that  it  is  main- 
tained in  order  that  the  State  may  get  the  revenue,  I  do  insist  that  the  people  of 
the  community  who  have  acquired  property  in  the  community  and  pay  the  taxes 
and  are  trying  to  have  a  proper  administration  of  the  affairs  of  the 
government  w^ithout  this  evil  should  be  permitted  to  insert  in  the  Constitution  a 
provision  that  you  shall  not  put  it  on  them  or  on  the  people  of  any  other  community 
without  a  majority  of  them  being  favorable  to  it. 

Mr.  Claggett  B.  Jones:  Before  the  gentleman  takes  his  seat  I  should  like  to 
ask  him  if  his  amendment  provides  that  where  a  majority  of  the  voters  of  a  pre- 
cinct request  that  a  person  may  be  granted  a  license  to  sell  whiskey,  that  is  con- 
clusive of  the  matter,  or  whether,  after  that  is  done,  the  court  can  exercise  its  dis- 
cretion as  to  whether  or  not  that  license  shall  be  granted. 

Mr.  Turnbull:  I  think  not,  because  the  amendment  provides  that  it  shall  not 
be  granted  unless  a  majority  of  the  voters  desire  that  the  license  be  granted. 

Mr.  Claggett  B.  Jones:  In  your  argument  you  said  emphatically  that  the  court 
would  have  to  grant  a  license  where  a  majority  of  the  voters  express  their  wish 
that  it  should  be  granted. 

Mr.  Turnbull:  I  said  that,  in  my  judgment,  under  the  provisions  of  this  article 
that  was  the  case.  It  is  not  so  under  the  present  law.  But  I  said  that  under  the 
present  law  where  the  man  proved  it  was  a  proper  place,  suitable,  fit  and  convenient, 
and  that  he  was  a  proper  man,  the  court  had  decided  they  were'  bound  to  grant  a 
license,  because  it  was  a  measure  for  revenue  by  the  State;  and  each  time  where  an 
appeal  has  been  taken  that  has  been  the  decision  of  the  court. 

Mr.  Claggett  B.  Jones:  Mr.  Chairman,  if  I  understand  that  is  the  purport  of 
this  law — and  I  w^ant  to  understand  clearly  just  exactly  what  is  intended  here — I 
am  very  sorry  to  say  that  I  cannot  give  my  adherence  to  it. 

Mr.  Green:  I  wash  to  say  to  the  gentleman  that  the  provision  is  simply  to  ask 
an  additional  safeguard  against  the  sale  of  whiskey,  and  it  does  not  interfere  with 
any  single  rule  or  regulation  or  safeguard  that  now  exists.  It  distinctly  provides 
that  not  only  the  laws  now  in  existence  shall  continue  in  existence,  but  that  the 
General  Assembly  shall  have  the  right  to  add  other  restrictive  measures,  bo  that, 
although  a  man  may  get  a  majority  of  the  voters  on  a  petition,  3''et  the  court  must 
ascertain  that  it  is  a  suitable  place,  and  that  he  is  a  man  of  good  character  and  a 
proper  man  to  be  intrusted  with  the  sale  of  liquor. 

Mr.  Claggett  B.  Jones:  Mr.  Chairman,  I  was  not  speaking  as  to  the  provisioR 
in  the  report  as  formulated  by  the  committee,  but  in  reference  to  the  amendment 
as  I  understand  it  offered  by  the  gentleman  from  Brunswick,  I  clearly  understood 
the  gentleman  to  state  that  if  it  was  a  suitable  place  and  the  man  was  a  fit  person, 
and  a  majority  of  the  voters  of  the  precinct  requested  that  a  license  should  be 
granted,  the  court  would  be  compelled  to  grant  it. 

Mr.  Dunaway:  If  my  friend  will  permit  me,  I  would  say  that  tbe  thing  he  fears 
does  not  grow  out  of  this  section,  either  expressly  or  by  necessary  implication.  It 
says  that  the  license  shall  not  be  granted  without  a  petition  signed  by  a  majority 
of  the  qualified  voters.  It  does  not  say  that  if  that  petition  is  signed  by  a  majority, 
the  courts  shall  necessarily  grant  the  petition.  There  is  still  the  discretion  in  the 
courts,  and  there  is  nothing  in  the  language  here  and  nothing  in  the  language  of 
the  amendment  of  the  gentleman  from  Brunswick  that  makes  it  obligatory  upon  the 
judge  to  grant  the  license. 

Mr.  Claggett  B.  Jones:  I  did  not  misunderstand  him  at  all.  I  understood  the 
gentleman  to  say  exactly  what  he  did  say.    I  contend  that  the  respectable  element 


DEBATES  OE  THE  COXSTITUTIOXAi  COXVEXTIOX  OE  YIKGIMA. 


2125 


of  a  community  has  the  right  to  rule  that  community;  and  when  this  Convention 
wants  me  to  put  myself  in  the  position  of  turning  my  people  over  to  a  rabble  I  do 
not  propose  to  cast  my  vote  to  do  any  such  thing.  If  it  is  proposed  that  the  judge 
shall  still  exercise  the  same  power  he  has  to-day  to  refuse  a  license,  even  though  a 
majority  of  the  voters  of  a  precinct  may  sign  a  petition  for  the  granting  of  a  license, 
then  I  should  be  disposed  to  vote  for  this  proposition.  Otherwise  I  certainly  shall 
not  do  so.  I  have  tried  to  make  my  position  explicit,  and  I  cannot  help  it  if  I  have 
not  the  language  to  do  so.  I  was  not  discussing  the  provision  as  brought  in  by  the 
report,  but  the  amendment  as  offered  by  the  gentleman  from  Brunswick. 

Mr.  Wescott:  Mr.  Chairman,  I  desire  to  offer  the  following  amendment  as  a  sub- 
stitute for  the  amendment  offered  by  the  gentleman  from  Brunswick. 

I  wish,  in  bringing  the  matter  to  the  attention  of  the  committee,  to  direct  at- 
tention to  the  fact  that  the  amendment  in  the  nature  of  a  substitute  which  I  offer 
is  germane  to  the  amendment  of  the  gentleman  from  Brunswick,  because  it  aims 
at  establishing  a  substitute  method  for  the  one  suggested  by  him  for  determining 
conclusively  and  satisfactorily  the  wishes  of  a  majority  of  the  voters  of  a  precinct. 
The  amendment  I  propose  is  to  insert  after  the  word  "precinct"'  in  line  12  of  sub- 
section 2  of  Article  on  the  sale  of  intoxicating  liquors  the  following  language: 

Provided,  however,  that  the  signattire  of  each  individual  signing  such  request 
shall  be  acknowledged  before  some  officer  authorized  hy  law  to  take  acknowledgments 
to  deeds,  or  be  proven  by  at  least  two  witnesses  in  the  same  manner  that  signatures 
to  deeds  are  required  to  be  acknowledged  or  proven  for  admission  to  record. 

I  do  not  propose  at  this  time  to  address  myself  to  the  main  proposition  involved 
in  the  suggestion  to  incorporate  this  article  in  the  Constitution  of  Virginia.  I 
expect  to  do  so  at  a  later  day. 

I  sincerely  hope  that  no  gentleman,  knowing  that  I  am  strongly  opposed  to  the 
insertion  of  this  article  in  the  Constitution  we  are  engaged  in  formulating,  will 
misconstrue  the  motive  with  which  I  offer  the  amendment  I  have  just  sent  to  the 
desk. 

It  occurred  to  me  prior  to  the  very  suggestive  question  of  the  gentleman  from 
Charlotte  (^Iv.  Eggleston)  that  the  proposition  involved  in  the  amendment  offered 
by  the  gentleman  from  Brunswick  was  wholly  impracticable,  and  ought  not  to  be 
an  amendment  to  be  seriouslj'  considered  in  a  deliberative  body  of  this  character. 
I  assure  the  gentlemen  of  the  committee  that  I  offer  this  amendment  in  perfect 
good  faith,  with  no  ulterior  design,  with  no  purpose,  if  I  know  myself,  save  to 
make  this  provision  an  intelligent,  intelligible,  self-enacting  provision  in  our  Con- 
stitution. That  I  shall  oppose  it  I  frankly  admit,  but  if  it  is  to  be  adopted,  I  sub- 
mit I  am  entitled,  in  such  suggestions  as  I  may  see  fit  to  offer,  to  as  much  consid- 
eration as  its  most  ardent  advocate  upon  the  floor  of  this  bodj'. 

Mr.  Chairman  and  gentlemen  of  the  committee^  I  think  it  is  not  necessary  in 
detail  to  do  more  than  has  already  been  pointed  out  to  show  that  the  suggestion  of 
the  gentleman  from  Brunswick  is  utterly  unpracticable,  utterly  unfeasible,  in  that 
in  every  instance,  and  throughout  every  county  and  magisterial  district  in  the 
State  of  Virginia  where  this  question  shall  arise,  if  this  provision  be  adopted  as  an 
article  of  our  Constitution,  and  where  it  shall  become  the  province  of  a  court  to 
determine  the  wishes  of  a  majority  of  the  legal  voters  of  that  voting  precinct,  every 
man  entitled  to  vote  shall  be  massed  in  one  controversy,  the  court  green  shall  be  taxed, 
the  voting  precinct  shall  be  drained  of  its  male  citizens,  in  order  that  this  solid 
phalanx,  pro  and  con,  may  be  arraigned  in  the  court-house  to  advise  the  county 
judge  by  their  testimony  of  their  opposition  to,  or  their  advocacy  of,  the  issuance  of 
the  license. 

On  motion  of  Mr.  Green,  the  committee  rose  and  the  President  resumed  the  chair. 
On  motion  of  Mr.  Barbour,  the  Convention   adjourned  until  Monday,  February 
■3.  1902,  at  12  o'clock  M. 


2126  DEBATES  OE  TIIE  CON^STITUTIOi^AL  CONVENTION'  OE  VIRGINIA. 


MONDAY,  February  3,  1802. 

The  Convention  met  at  12  o'clock  M. 
Prayer  by  Rev.  John  Moncure,  D.  D. 

On  motion  of  Mr.  Green,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  Committee  on  Preamble  and  Bill  of 
Rights,  the  Division  of  Governmental  Powers,  and  on  such  portions  of  the  Consti- 
tution as  shall  not  be  referred  to  other  committees,  Mr.  Turnbull  in  the  chair. 

Mr.  Turnbull:  I  wish  to  substitute  this  language  in  place  of  the  amendment 
which  I  offered  on  Saturday.  It  is  simply  a  slight  change  of  the  language.  Th« 
substance  of  the  amendment  is  not  affected. 

Strike  out  in  line  1,  page  7,  the  words  "without  the  written  request  of"  and  in- 
'sert  in  lieu  thereof  the  following  words:  "Unless  the  court  to  which  the  application 
is  made  for  license  be  satisfied  from  the  testimony  introduced  for  and  against  the 
application  that."  Strike  out  all  the  residue  of  the  section  after  the  word  "sold," 
In  line  10,  and  insert  the  words  "desire  that  the  application  be  granted." 

Mr.  Westcott:  Mr.  Chairman  and  gentlemen  of  the  committee,  at  the  conclu- 
sion of  the  deliberations  of  this  body  on  Saturday  last  upon  the  subject  now  before 
the  House,  I  was  engaged  in  endeavoring  to  point  out  the  undesirable  and  impracti- 
cal nature  of  the  provision  embodied  in  the  amendment  offered  to  the  committee's 
report  by  the  gentleman  from  Brunswick  (Mr.  Turnbull).  At  the  same  time  I 
was  indirectly  discussing  the  amendment  offered  by  myself  as  a  substitute  there- 
for. I  submit,  Mr.  Chairman,  that  tthe  alteration  in  the  proposition  of  the  gentle- 
man from  Brunswick,  which  has  just  been  sent  to  the  secretary's  desk  and  read, 
effects  no  material  change  in  the  proposition  which  he  had  theretofore  offered,  and 
is  open  to  as  many  and  as  serious  objections,  and  each  and  every  objection  that 
could  have  been  offered,  and  which  I  was  endeavoring  to  make  appear  existed,  as  to 
my  original  proposition.  The  proposition  of  the  committee  Is  that  no  liquor  license 
shall  be  issued — I  omit  some  of  the  esentials  because  they  are  not  under  discus- 
sion— "without  the  written  request  of  a  majority  in  number  of  the  legally  qualified 
and  registered  voters  in  the  town  or  in  the  precinct  of  the  county  wherein  such 
liquors  are  intended  to  be  sold,  who  actually  voted  at  the  last  preceding  regular 
election  in  such  town  or  in  such  precinct." 

That  proposition,  it  seemed  to  me,  was  open  to  very  serious  objection,  and  it 
was  with  a  view  to  removing,  in  so  far  as  was  possible,  the  objections  that  were 
inherent  in  that  provision  of  the  committee's  report  that  I  directed  my  amendment. 

I  will  not  undertake  to  even  summarize  what  I  attempted  to  say  on  Saturady 
with  reference  to  the  objections  to  the  committee's  recommendation  or  either  of 
those  amendments  further  than  to  say,  for  the  benefit  of  the  members  of  this  body 
who  were  not  present  on  Saturday,  that  the  proposition  of  the  gentleman  from 
Brunswick  unquestionably,  indisputably,  to  my  mind,  entails  upon  every  voting  pre- 
cinct in  the  State  of  Virginia  where  this  question  arises  the  necessity  to  mass  the 
legal  voters,  who  are  either  in  favor  of  the  granting  of  liquor  license,  or  opposed  to 
it,  in  court  for  the  purpose  of  ascertaining  whether  or  not  they  favor  or  oppose  the 
granting  of  such  license. 

I  submit,  Mr.  Chairman,  that  if  there  be  any  other  method  In  contemplation 
by  the  gentleman  who  has  offered  this  amendment,  that  It  is  necessarily  impractical 
and  incapable  of  operation,  because  it  would  result  in  permitting  members  of  the 
community  to  come  into  court  and  to  testify  to  a  matter  merely  of  opinion  as  to 
what,  in  the  opinion  of  such  witness,  Is  the  majority  sentiment  upon  this  subject  In 
his  voting  precinct.  I  shall  not  address  myself  at  length  to  the  proposition  con- 
tained in  my  amendment  offered  as  a  substitute  for  the  amendment  offered  by  th© 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2127 

member  from  Brunswick  further  than  again  to  recur  to  this  proposition:  That  if  a 
question  of  such  vital  interest  to  the  people  of  every  voting  precinct  in  a  county  as 
the  granting  of  a  liquor  license  therein  be  relegated  to  the  determination  of  a  court 
upon  mere  petition,  there  should  be  some  means  determined  upon  by  this  body  in 
its  legislative  enactment  whereby  the  reliability  of  the  names  upon  that  petition 
can  be  determined  by  the  court  which  has  to  pass  upon  the  question. 

There  is  not  a  gentleman  in  this  body,  I  take  it,  who  has  not  had  his  attention 
drawn  to  the  absolutely  unreliable  character  of  a  p.etition,  in  the  various  functions 
which  popular  petitions  have  been  made  to  serve,  as  showing,  proving^  or  demon- 
strating any  sort  of  status,  from  the  fitness  or  qualification  of  a  man  to  hold  office 
to  the  highest  purpose  for  which  it  has  ever  been  used.  My  mind  reverts  to  ex- 
periences which  I  have  had  since  I  have  been  engaged  in  the  practice  of  my  profes- 
sion in  my  native  State  that  have  demonstrated  the  proposition  for  v/hich  I  contend. 

But  a  few  years  ago  there  was  a  motion  set  on  foot  in  one  of  the  sections  of 
the  county  I  have  the  honor  immediately  to  represent  in  this  body  to  secure  the 
passage  of  a  charter  of  a  certain  portion  of  that  county  as  a  municipal  corporation. 
I  refer  to  the  incorporation  of  the  town  of  Chincoteague.  The  representatives  of 
the  county  declined  in  a  matter  which,  in  the  very  nature  of  the  thing  itself,  ad- 
mitted of  such  a  wide  divergence  of  sentiment  and  of  opinion  to  act  upon  the  mere 
request  and  importunities  of  certain  individuals  in  the  passage  of  such  a  charter 
law,  and  demanded  of  the  advocates  of  incorporating  that  town,  that  the  consensus  of 
the  wishes  of  the  inhabitants  of  that  section  of  the  county  be  demonstrated  by  a 
petition  to  the  General  Assembly  to  pass  such  charter,  signed  by  a  majority  of  the 
legal  voters  of  that  island.  Such  a  petition  was  furnished  to  the  representatives  of 
my  county  in  the  General  Assembly,  and  the  act  chartering  the  town  of  Chincoteague 
was  passed,  and  the  town  incorporated.  What  was  the  result?  Charges  of  whole- 
sale forgery  were  made  against  the  individuals  who  were  most  active  in  getting  up 
the  petition.  Mind  you,  gentlemen,  I  speak  not,  because  I  know  not,  of  the  extent 
to  which,  if  any,  there  was  foundation  for  such  charges,  but  merely  to  the  fact  that 
such  charges  were  made  and  earnestly  insisted  upon.  It  was  said,  for  instance, 
that  whilst  the  name  of  every  colored  voter  resident  upon  Chincoteague  island  waa 
to  be  found  upon  that  petition,  as  a  matter  of  fact,  with  the  exception  of  the  name 
of  a  single  individual  colored  man  who  did  sign  the  petition,  the  name  of  every 
other  colored  man  upon  the  Island,  attached  to  the  petition,  w^as  an  out  and  out 
forgery.  The  charges  and  counter-charges  did  not  stop  there.  The  fact  that  the 
General  Assembly  had  acted  upon  a  petition  purporting  to  indicate  the  wishes  of 
that  community  which  had  been  demanded  by  the  members  from  that  section  re- 
sulted in  strife,  commotion,  ill-feeling  and  dissatisfaction,  which  culminated  at  the 
last  session  of  the  General  Assembly  in  the  repeal  of  the  charter,  because  it  had 
been  enacted  into  law  without,  in  truth  and  in  fact,  the  proposition  to  incorporate 
that  territory  ever  having  met  the  sanction  of  a  majority  of  the  people  concerned, 
notwithstanding  the  fact  that  the  names  of  a  majority  of  them  were  signed  to  the 
petition. 

Another  instance  of  a  similar  nature  in  connection  with  the  Incorporation  of 
another  town  in  my  county.  After  the  charter  had  been  enacted  by  the  General 
Assembly,  and  the  town  had  been  incorporated  by  a  similar  effort, .  which  was  also 
brought  in  question,  so  great  was  the  dissatisfaction  and  the  claim  of  misrepresenta- 
tion of  the  wishes  of  the  people  residing  within  the  corporate  limits  of  the  town 
that  an  effort  was  set  on  foot  to  Induce  the  General  Assembly,  if  not  to  repeal  the 
charter,  at  least  to  submit  the  question  as  to  whether  or  not  the  charter  should  be 
repealed  or  should  remain  upon  the  statute  books,  to  be  determined  by  an  election 
of  those  interested.  Petitions,  pro  and  con,  to  the  General  Assembly  with  refer- 
ence to  the  matter  were  circulated  and  largely  signed.    I  came  up  myself  to  Rich- 


2128  DEBATES  OE  THE  COXSTITUTIOXAL  COXVENTIOX  OE  VIRGINIA. 

mond  to  interview  our  representatives  in  the  General  Assembly  in  behalf  of  that 
contingent,  or  element,  within  the  corporate  limits  of  the  town  who  desired  that  the 
ehaiter  should  be  repealed.  From  the  day  the  question  was  first  agitated — from 
the  time  that  one  petition  in  favor  of  the  repeal  was  started — and  a  petition  against 
'he  repeal  was  also  started — the  charges  that  were  constantly  made,  of  signatures 
that  were  induced  by  misrepresentations,  of  lack  of  authority  to  place  the  names  of 
certain  individuals  upon  that  petition  and  other  equally  questionable  methods  of 
procuring  signatures  went  on  until  the  personnel  represented  by  these  petitions  was 
as  uncertain  and  as  unreliable  and  as  instable  as  the  quicksands  under  the  influence 
of  opposing  currents  in  a  river.  Utterly  unreliable,  I  submit  to  you,  gentlemen,  as 
demonstrating  the  wishes  of  a  majority  of  any  community  upon  any  subject,  has 
ever  been,  is  to-day,  and,  in  my  humble  opinion,  will  ever  prove  the  effort  of  demon- 
strating the  wishes  of  that  majority  by  the  signatures  to  petitions. 

Therefore,  gentlemen,  whilst  my  objections  to  the  Quarles-Barbour  proposition 
would  not  be  removed  even  if  my  amendment  should  be  adopted,  and  if  every  sig- 
nature w^ere  properly  affixed  to  the  petition  which  is  to  be  the  polar  star  of  the 
judge  in  his  action  in  granting  or  refusing  a  license  under  the  provisions  in  this 
measure.  I  do  submit  to  your  practical  sense,  to  your  past  experience,  to  your  ob- 
servation, in  matters  that  have  been  heretofore  determined  by  petition,  the  utter 
unreliability,  untrustv/orthiness,  aye,  absolute  worthlessness  of  that  sort  of  method 
of  determining  the  consensus  of  opinion  of  any  community  upon  this  or  any  other 
question. 

Mr.  Chairman  and  gentlemen  of  the  committee,  when  I  rose  on  Saturday  I  dis- 
tinctly stated  that  it  was  not  my  purpose  to  project  my  remarks  further  than  to 
discuss  the  proposition  with  which  I  have  just  concluded,  because  of  the  fact  that 
the  clock  indicated  that  there  would  be  but  a  few  minutes  of  the  session  left,  and 
within  that  space  of  time  I  had  hoped  to  be  able  to  conclude  the  remarks  I  desired 
to  offer  upon  that  branch  of  the  qustion;  but  since  my  effort  to  conclude  that  branch 
of  the  discussion  on  Saturday  has  failed,  and  since  other  gentlemen  who  have  pre- 
ceded me  in  favor  of  and  in  opposition  to  this  proposition  have  gone  into  the  dis- 
cussion of  the  general  merits  of  the  proposition  to  insert  this  as  an  independent 
article  in  the  Constitution  we  are  now  engaged  in  revising,  I  shall  proceed  with 
such  other  observations  as  I  desire  to  make  in  opposition  to  the  whole  measure. 

It  was  said,  and  I  am  painfully  conscious,  far  better  than  I  can  say  it,  by  the 
distinguished  member  from  Hanover  (Mr.  Carter),  that  the  proposition  to  incor- 
porate in  the  Constitution  of  our  State  the  provision  regulating  the  sale  of  intoxi- 
cating liquor  is  an  experiment.  Indeed,  it  is  an  experiment,  and  far  more  than 
an  experiment.  It  is  not  only  an  experiment,  the  like  of  which,  the  rashness  of 
which,  has  never  before  been  attempted  in  the  history  of  any  Constitutional  Con- 
vention of  any  State  in  this  broad  Union,  but,  gentlemen,  it  is  an  experiment  so 
rash,  so  questionable,  that  never,  so  far  as  my  reading  and  observation  have  gone, 
has  it  ever  been  even  attempted  by  a  General  Assembly  or  a  legislative  body  in  this 
or  any  other  State  or  country. 

An  experiment!  Yes,  it  is  experimenting  in  our  fundamental  law  with  a  ven- 
geance! I  am  aware,  gentlemen,  of  the  fact  that  a  number  of  the  General  Assemblies 
of  the  various  States  of  the  Union  have  passed  what  are  known  as  local  option  laws, 
and  in  the  use  of  that  term  in  this  particular  connection,  I  wish  to  point  out  to  you  a 
discrimination  between  "local  option  laws,"  as  ordinarily  understood,  signifying 
those  pertaining  to  the  sale  of  intoxicating  liquors,  and  the  term  "local  option  laws" 
in  its  more  comprehensive  sense,  embracing  every  character  of  legislation  wherein 
It  is  proposed  and  provided  that  the  law  shall  become  effective  in  any  given  integral 
portion  of  the  Commonwealth  until  the  question  of  its  expediency  shall  have  been 
isubmitted  to  and  ratified  by  the  majority  of  the  legal  voters  of  that  integral  portion 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2Ud 


of  the  Commonwealth.  Laws  of  that  character,  even  when  passed  by  General  Assem- 
blies, have  been  gravely  attacked  and  their  constitutionality  has  been  questioned. 
I  conceive  it  is  no  longer  a  matter  of  dispute  that  such  a  law  is  constitutional  by 
the  weight  of  authority  of  the  American  Commonwealths;  but,  sirs,  I  would  direct 
your  attention  to  the  fact  that  when  that  class  of  legislation  was  in  its  infancy, 
when  the  constitutional  test  was  first  invoked  and  applied  in  the  several  Common- 
wealths of  these  United  States,  a  number  of  the  courts  of  last  resort  of  the  United 
States  deliberately  determined  that  enactments  of  that  character  by  the  General 
Assembly  were  obnoxious  to  the  objection  that  they  involve  a  delegation  of  the  legis- 
lative power,  which  is  vested,  under  the  Constitution,  in  the  sovereign  legislative 
branch  of  the  government^  and  the  States  of  Pennsylvania,  Indiana,  Iowa,  Califor- 
nia, and  Delaware  have  each  deliberately  determined  that  a  legislative  enactment  of 
this  nature,  even  when  the  question  of  whether  the  law  should  become  operative  was 
to  be  determined  by  an  election,  was  absolutely  unconstitutional  and  void,  because 
it  was  a  delegation  of  the  legislative  power  by  the  legislative  branch  of  the  govern- 
ment. •'But,''  say  the  gentlemen  who  are  advocating  this  unique,  anomalous,  ex- 
perimental proposition,  "we  are  sovereign ;  all  things  are  possible  at  our  hands,  and 
for  that  reason  those  questions  need  not  be  considered"';  nor  would  I  have  attempted 
to  advert  to  this  phase  of  the  question  except  for  the  purpose  of  tracing  brief!}'  the 
history  of  legislation  of  this  character  in  support  of  the  proposition  made  a  few 
moments  since. 

I  desire  to  call  the  attention  of  this  committee  to  another  objection  to  the  incor- 
poration of  this  article  in  our  Constitution.  Perhaps  it  may  not  be  amiss  in  this 
connection  to  say  that  I  came  to  serve  the  people  of  my  section  as  a  member  of  this 
body  with  well-defined  views  as  to  what  character  of  measures  were  within  the 
legitimate  province  of  a  Constitutional  Convention.  It  is  a  well-recognized  prin- 
ciple among  constitutional  lawyers  everywhere  that  the  main  province  of  a  body 
of  the  nature  and  character  of  this  is  merely  to  declare  the  ftmdamental  principles 
which  shall  underlie  the  government  of  our  State.  There  is  a  considerable  portion 
of  this  body,  and  I  confess  I  belong  to  that  contingent,  who  will  claim  that  there 
are  circumstances  and  conditions  which  have  been  deemed  suflicient  by  other  bodies 
of  like  character,  which  have  heretofore  been  held,  for  departing  from  that  general 
rule,  and  actually  embarking  in  legislation  in  the  Constitution;  but  to  each  and 
every  individual  who  has  yielded  his  assent  to  that  proposition,  which  will  be  most 
earnestly  debated  and  vigorously  contested  by  many  of  the  ablest  members  of  this 
body,  to  those  who,  like  mj'self,  have  yielded  their  assent  to  the  proposition  that 
there  may  be  conditions  under  which  a  Constitutional  Convention  is  justified  in  de- 
parting from  the  broad  course  which  it  is  their  main  duty  to  pursue,  I  submit  that 
the  present  character  of  legislation  does  not  come  within  the  scope  of  the  exception 
which  they  invoke  to  justify  their  votes  and  their  proposed  measures  in  other  lines. 

What  is  the  great  underlying  principle  which  has  been  and  will  be  invoked  upon 
the  floor  of  this  body  to  justify  such  a  departure  to  engage  in  general  legislation? 
It  is  this  that  whensoever  past  legislative  history  has  demonstrated  the  utter  futility 
of  the  wishes  of  people  to  have  enacted  in  their  laws  certain  character  of  reforms 
which  they  have  repeatedly  demanded,  and  whenever  their  manifest  desires  have 
been  defeated  by  motives  and  methods  which  they  themselvs  call  into  question  and 
deem  reprehensible,  those  are  the  circumstances  which  justify  the  departure  from 
that  broad  plane  of  our  duty  which  I  have  already  endeavored  to  define. 

Now,  let  me  submit  to  you  gentlemen  who  are  advocates  of  this  species  of  ex- 
periraental  legislation  in  our  Constittition,  you  may  justify  your  votes  in  this  body 
in  favor  of  the  fellow-servant's  liability  bill  along  the  line  of  that  exception  to  the 
general  rule  to  which  I  have  referred,  but  when  you  attempt  to  array  this  as  an 
analogous  instance  in  which  you  are  justified  in  departing  from  the  chart  which 


2130  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


has  ever  been  broadly  laid  out  and  followed  by  bodies  of  this  nature,  I  submit  to 
you  that  the  exception  is  not  applicable  to  the  measure  under  consideration. 

When  was  it  that  the  General  Assembly  of  the  State  of  Virginia  ever  failed  in 
enacting  into  law  any  demand  of  the  people  of  the  Commonwealth  for  reformation  of 
our  laws  with  reference  to  the  question  of  the  sale  of  intoxicating  liquors?  I  would 
be  glad  if  some  gentleman  who  professes  to  be  governed  by  the  general  rule  which 
I  have  endeavored  to  lay  down,  with  the  exception  I  have  stated,  would  point  out 
the  instance.  So  far  as  I  am  advised,  the  only  contest  of  that  character  which  the 
General  Assembly  of  the  State  of  Virginia  has  ever  been  called  upon  to  determine 
arose  when  the  proposition  was  presented  to  incorporate  into  law  the  local  option 
provision  of  our  law  as  to  the  sales  of  intoxicating  liquors.  Did  the  General  Assem- 
bly fail  in  that  instance  to  accede  to  the  demands  of  the  people?  Has  there  ever  been 
a  sharper  legislative  conflict  in  the  annals  of  our  State  than  was  fought  out  upon 
these  very  floors  when  that  question  was  before  the  General  Assembly?  I  thinl? 
not,  and  the  wishes,  the  demands,  the  persistent  and  insistent  demands  of  the  same 
element  of  the  community  that  is  asking  this  provision  which  it  is  proposed  to 
insert  in  our  Constitution  did  not  have  then  a  deaf  ear  turned  to  their  demands, 
but  the  very  provision  and  substance  as  they  demanded  it  was  enacted  into  law. 

Then,  what  excuse  is  there,  gentlemen;  what  justification  is  there,  if  you  con- 
cede such  limitations  of  our  authority  as  I  have  endeavored  to  law  down  as  regu- 
lation in  which  you  conceive  your  people  are  in  need,  unless  you  absolutely  cut 
this  character  of  experimental  legislation,  legislation  that  the  General  Assembly  of 
Virginia  has  never  refused  to  enact  into  law?    Gentlemen,  if  you  wish  to  be  con- 
sistent, unless  you  turn  yourselves  adrift  and  say  you  are  prepared  to  enact  into  law, 
aye,  into  the  fundamental  laws  of  our  State,  every  good  and  salutary  piece  of  legis- 
lation in  which  you  conceive  your  people  are  in  need,  unless  you  absoluttely  cut 
yourselves  loose  from  all  these  restrictions  as  to  your  duties,  I  ask  you,  wherein 
lies  the  justification  for  a  piece  of  legislation  of  this  character  in  your  Constitution? 
I  will  listen  with  attention  and  with  interest  in  the  hope  that  I  may  be  enlight- 
ened by  the  distinguished  member  from  Culpeper   (Mr.  Barbour)   as  the  patron  of 
this  measure  as  reported.    The  next  objection  to  the  proposed  article  which  I  wish  to 
urge  is  that  it  is  local  in  its  operation.    I  would  have  you  bear  me  out  that,  in  this 
matter,  I  have  been  consistent  in  my  objection,  that  this  Constitution  should  con- 
tain no  provision  local  or  special  in  its  character.     I  am  aware,  gentlemen,  that 
local,  private  and  special  legislation  has  been  the  rule  and  not  the  exception  in  the 
past  history  of  the  legislative  experience  of  our  State,  but  I  had  hoped  that  that 
mad  species  of  folly  had  run  its  race  in  old  Virginia.    I  had  hoped  that  the  salu- 
tary provisions  inserted  by  the  committee  on  which  I  had  the  honor  to  serve — the 
Committee  on  the  Legislative  Department— which  reported  against  legislation  of  that 
character,  and  which  report  has  been  adopted  not  only  in  the  Committee  of  the 
Whole,  but  by  the  Convention,  had  forever,  at  least  during  the  life  of  this  Consti- 
tution, if  it  get  to  life,  ended  that  folly.    But,  sirs,  in  this  very  fundamental  instru- 
ment of  ours  itself  it  is  proposed  by  this  article  to  insert  a  provision  as  seriously 
and  inherent  obnoxious  to  that  objection  as  any  provision  that  the  General  Assem- 
bly has  ever  passed  in  the  history  of  the  State.    It  is  proposed  to  legislate  in  our 
Constitution,  in  the  first  place,  upon  this  subject  as  to  the  counties  as  distinguished 
from  the  cities.    Now,  I  fancy  that  some  of  the  capable,  astute,  ready-witted  advo- 
cates of  this  measure  will  be  heard  to  say  that  we  have  already  made  such  dis- 
criminations in  our  work  because  we  have  adopted  some  provisions  applicable  to 
cities  and  some  applicable  to  the  country.    I  deny  it.    I  dispute  it.    I  say  that  any 
man  who  has  an  eye  to  real  analogy  can  see  the  difference  as  between  the  two 
characters  of  measures.    I  admit  that  in  the  Constitution  there  must,  of  necessity, 
be  discrimination  between  some  of  its  provisions  applicable  to  cities  and  others  ap- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX 


OF  YIEGIXIA. 


2131 


plicable  to  counties  only,  because  of  the  intrinsic  difference  between  the  situations 
and  conditions  existing  in  the  subject  matters  affected  by  these  several  provisions. 

What  is  the  real  character  of  this  measure?  It  is,  in  my  humble  opinion,  an 
ill-advised  effort  at  temperance  reform.  I  ask  the  advocates  of  this  measure,  in  its 
present  shape,  wherein  and  whence  have  they  concluded  that  the  people  of  old  Vir- 
ginia, who  live  in  its  counties,  in  its  rural  sections,  are  any  more  in  need  of  the 
protection  of  a  constitutional  arm  in  the  form  of  this  article  than  the  inhabitants  of 
the  cities  of  this  Commonwealth?  Is  not  this  an  effort  on  the  part  of  those  who  be- 
lieve the  saloon  is  a  curse?  And  I  wish  to  say,  in  this  connection,  that  in  that 
opinion  I  heartily  concur.  It  is  only  a  question,  as  between  those  gentlemen  and 
myself,  of  difference  of  opinion  as  to  the  means  which  shall  be  pursued  in  the  accom- 
plishment of  a  common  end.  I  say,  gentlemen,  if  that  is  the  true  and  the  real  pur- 
pose of  this  measure,  wherein  lies  the  difference  between  the  conditions  existing  in 
the  cities  and  those  of  the  counties  which  is  to  be  the  basis  of  your  discrimination, 
the  justification  of  the  proposition  that  this  provision  is  to  apply  to  counties  and 
not  to  cities? 

I  want  to  ask  some  of  these  gentlemen  who  have  made  such  earnest  and  labored 
temperance  speeches — worthy,  indeed,  of  the  cause,  were  they  made  before  another 
forum  and  under  different  circumstances,  and  which  I  could  applaud  from  the  very 
depths  of  my  heart — you  gentlemen  who  have  already  proceeded  in  that  line  of 
declaration  rather  than  argument,  and  others  who  will  doubtless  follow  us,  are 
there  no  homes  blighted  in  the  cities  by  this  terrible  curse?  Are  the  protection  of 
the  husband  and  the  father  and  the  provision  of  the  necessaries  of  life  v>hich  are- 
incumbent  upon  him  to  afford  taken  away  from  none  of  the  women  and  children 
who  reside  in  the  cities,  but  alone  those  in  the  counties,  by  this  terrible  curse?  Are 
your  penitentiaries,  your  lunatic  asylums,  your  various  eleemosynary  institutions 
filled  alone  by  reason  of  the  effects  of  this  blighting  curse  upon  those  who  live  in 
the  country?  Do  they  draw  alone  from  the  country  regions?  Have  there  been  any 
greater  number  of  paupers  made  by  indulgence  in  this  iniquitous  habit  of  the  peo- 
ple of  the  country  than  in  the  cities?  On  the  contrary,  gentlemen,  I  submit  to  you 
that  the  reverse  is  true.  The  only  reason  I  have  heard,  and  it  is.  in  my  humble 
opinion,  as  fallacious  as  an  attempted  reason  could  be,  is  that  the  cities  hare  poUc* 
protection  and  the  counties  have  not.  The  country  does  not  need  that  character  of 
police  protection  which  the  density  of  population  of  cities  makes  necessary  and  the 
possession  of  which  by  the  cities  is  the  sole  flimsy  pretext  upon  which  this  discrimi- 
nation is  attempted  to  be  excused. 

Has  your  vaunted  police  protection  in  the  cities,  which  is  your  pretended  justi- 
fication of  this  exception,  ever  ameliorated  to  any  extent  the  terrible  ill  consequences 
that  are  the  direct  outgrowth  of  this  traffic  in  the  cities?  Have  those  men  who 
stalk  the  streets  of  Richmond  in  the  livery  of  the  city,  the  guardians  of  your  peace, 
been  enabled  to  check  the  consumption  of  intoxicants  in  the  city?  Have  they  been 
able  to  thin  out  the  ranks  of  this  army  of  people  who  seem  bent  upon  their  own  de- 
struction, or  to  restrain  their  evil  appetites  and  tendencies  along  this  line  in  any  par- 
ticular? Not  at  all.  Then,  why,  in  the  name  of  reason,  shall  we  undertake,  we,  th& 
hundred  men  assembled  from  every  part  and  portion  of  the  old  Commonwealth  of  Vir- 
ginia, and  intrusted  with  the  sacred  mission  of  revising  the  fundamental  law,  in  the 
name  of  the  dignity  and  the  intelligence  and  the  sober  earnestness  of  purpose  with 
which  we  are  supposed  to  be  actuated.  I  beg  of  you  tell  me  why  should  we  attempt 
to  incorporate  a  species  of  special,  local  legislation  in  our  Constitution?  "Why  insist 
that  this  body,  because  of  the  great  moral  force  that  is  behind  this  movement — and 
God  knows  I  revere  and  respect  the  motives  that  actuate  its  movers  as  much  as  any 
man  in  this  body — shall  respond  to  that  unreasoning  demand  that  we  incorporate  a 
local,  special  species  of  experimental  legislation  in  the  Constitution  of  our  State? 


2132  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  YIKGINIA. 

Where  is  it  proposed  that  this  Barbour-Quarles  resolution,  if  incorporated  as  a 
separate  article  in  our  Constitution,  shall  operate?  Not  in  a  city  of  the  Commonwealth. 
It  would  be  open  to  every  word  of  every  line  of  every  objection  that  I  have  attempted 
to  array  against  it  if  it  stopped  there,  but  it  goes  much  further.  It  is  not  to  operate 
in  a  single  local  option  county  or  district  of  the  State  of  Virginia — not  one.  It  has  been 
stated  upon  this  floor,  and  I  have  seen  the  proposition  in  print,  that  no  less  a  number 
than  fifty-five  of  the  one  hundred  counties  of  the  State  have  local  option  as  a  status 
in  them  at  this  time.  Therefore  not  only  does  this  provision  not  apply  to  your  cities, 
but  it  does  not  even  apply  to  one-half  in  number  of  the  counties  in  the  State.  It  ap- 
plies not  to  a  single  city,  and  to  but  forty-five  of  the  one  hundred  counties  in  the  State. 
Let  me  ask  you,  gentlemen,  is  not  that  experimental,  local,  special  legislation  in  your 
Constitution  with  a  vengeance?  I  know  you  cannot  contemplate  any  such  effect  of  this 
law  without  some  feeling  of  revulsion. 

That  is  not  all;  and  I  would  ask  the  special  attention  of  the  members  of  the  com- 
mittee to  this  suggestion.  Mind  you,  it  is  not  proposed  that  this  Barbour-Quarles  reso- 
lution— and  I  want  parenthetically  to  eliminate  the  distinguished  member  from  Augusta 
(Mr.  Quarles)  from  the  name  of  this  measure,  because  he  stands  here,  instead  of  its 
champion,  its  opponent,  and  I  shall  call  it  henceforth  the  Barbour  resolution — is  not 
only  not  to  interfere  with  the  local  option  status  where  it  prevails  in  any  county  in 
the  State,  but  by  express  provision  it  is  not  to  interfere  with  the  local  option  general 
law  of  the  State  of  Virginia,  or  any  other  local  option  law. 

Now,  let  us  go  a  step  further  in  noting  what  is  contemplated  by  this  ill-advised 
species  of  legislation.  It  is  proposed  to  one  hundred  grave,  dignified  and  supposedly 
experienced  men  in  human  affairs,  to  enact  a  provision  in  our  Constitution  which,  as 
these  local  option  laws  are  not  interfered  with,  will  permit  each  of  the  forty-five  other 
counties  of  the  State  to  adopt  local  option  whensoever  it  will,  and  then  you  will  find 
yourselves  in  the  anomalous  and  preposterous  position  of  having  an  article  in  your 
Constitution  that  has  no  application  to  a  single  foot  of  the  territory  of  the  great  State 
of  Virginia. 

Gentlemen,  pause,  contemplate  and  consider  well.  I  beg  of  you,  before  yielding 
your  assent  to  so  unusual,  startling  and  unprecedented  a  proposition.  Is  that  an  unfair 
argument?  Is  it  not  justified  by  this  provision?  Is  it  not  an  absolutely  fair  and  real- 
istic description  of  what  you  gentlemen  who  favor  this  matter  are  contemplating?  Talk 
about  experiment!  Talk  about  constitutional  legislation!  Where,  I  ask  you,  in  the 
annals  of  all  constitutional  bodies  and  of  all  legislative  bodies,  was  there  ever  such  an 
enormity  as  that  proposed  in  this  measure? 

If  gentlemen  say  this  is  not  a  fair  argument,  I  but  point  you  to  the  growth  and 
the  constant  trend  of  increase  of  the  number  of  counties  where  local  option  has  been 
exercised  since  this  great  fight  was  made  upon  the  floor  of  these  halls,  and  the  temper- 
ance sentiment  of  the  people  of  our  State  found  expression  in  this  enactment  of  that 
law.  Every  year  since  that  time  there  have  been  additions  to  the  number  of  counties 
in  this  State  which  have  established  local  option.  What  right  have  we,  then,  to  assume 
that  that  growth,  that  increase,  that  accretion,  will  not  continue  on  until  there  shall  not 
be  a  foot  of  territory  in  the  whole  length  and  breadth  of  our  dear  old  Commonwealth 
to  which  this  Barbour  resolution  can  have  the  slightest  application  or  significance  in 
the  world? 

Gentlemen,  I  hope  you  will  indulge  me  for  a  few  moments  further  while  I  attempt 
to  direct  your  attention  to  other  objections  to  the  incorporation  of  this  provision  In 
the  Constitution  of  Virginia.  In  this  connection,  I  trust  it  may  not  be  amiss  for  me  to 
say — much  as  I  deprecate  personalities — ^that  the  distinguished  gentlemen  who  have  pre- 
ceded me  in  advocacy  of  this  measure,  and  who,  I  submit,  have  substituted  for  substan- 
tial arguments  in  its  favor,  eloquent  denunciations  of  the  liquor  traffic  in  general,  and 
of  the  saloon  in  particular,  shall  not  place  me  in  the  attitude  of  the  defender,  of  either. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


2133 


I  vehemently  protest  against  giving  any  such  shape  to  the  issues  under  discussion 
now.  I  hope  I  may  be  further  pardoned  for  the  utterance^  intensely  personal  though  it 
be,  that  for  years  I  have  been  a  total  abstainer  from  all  intoxicants  and  hope,  by  the 
help  of  God,  so  to  continue  throughout  the  remainder  of  my  life;  that  my  influence,  in 
so  far  as  I  have  had  any,  or  pretended  to  exert  any,  has  been  for  several  years  past, 
and  will  ever  be  exerted  in  the  furtherance  of  any  discreet  and  wise  measure  looking  to 
the  promotion  of  the  cause  of  temperance  that  is  ever  propounded  w^hilst  I  am  per- 
mitted to  play  upon  the  scene  of  life's  action.  Not  one  word  of  the  eloquent  flood  of 
denunciation  which  has  been  uttered  by  the  distinguished  and  able  gentlemen  who  have 
preceded  me  in  advocacy  of  this  measure  has  struck  a  single  note  of  objection  or  discord 
in  my  heart.  I  yield  to  no  man  on  this  floor  in  the  earnestness  of  my  purpose,  deep 
down  in  the  innermost  recesses  of  my  soul  by  every  means  in  my  power  to  aid,  counte- 
nance and  promote  every  legitimate  effort  to  bring  about  the  ends  w^hich  the  w^ortliy 
gentlemen  and  the  noble  sentiment  behind  these  numerous  petitions  in  favor  of  this 
article  seek  to  attain. 

But  I  question  not  only  our  right  to  do  it,  not  only  the  propriety  of  it,  not  only 
the  constitutional  ethics  of  it,  but  I  question  the  wisdom  of  it,  from  the  standpoint  of 
its  very  advocates  themselves.  I  know  that  these  view^s  may  involve  me  in  adverse 
criticism  of  too  great  a  degree  of  self-confldence  which  may  be  very  seriously  reprobated 
by  some  of  the  gentlemen  who  may  follow  me,  but  even  though  I  expose  myself  to  that 
risk,  I  cannot  decline  the  opportunity  which  this  occasion  and  my  attotude  upon  this 
question  give  me  to  define  the  reasons  w^hy  I  have  opposed,  am  still  opposing,  and  shall 
ever  oppose  this  as  a  constitutional  measure. 

I  had — I  do  not  know  whether  to  say  the  good  or  the  evil  fortune — to  be  assigned 
to  service  upon  the  committee  that  had  this  matter  under  consideration  as  a  standing 
committee  of  this  body.  I  have  listened  with  attention,  with  interest,  I  trust,  exceeded 
by  none  upon  that  committee,  to  every  argument  that  has  been  urged  either  upon  the 
floor  of  that  committee  room  or  in  the  Committee  of  the  Whole.  T  remember  very 
distinctly,  gentlemen,  that  aside  from  the  temperance  lectures  w'hich  w^ere  delivered 
before  us  in  the  committee,  and  with  which  I  w^as  in  entire  sympathy,  except  in  so  far 
as  I  questioned  the  propriety  of  delivering  them  upon  such  occasions  and  to  such  a 
body,  there  was  but  one  real  cause  offered  by  the  advocates  of  this  measure,  before 
the  standing  committee,  as  to  w^hy  it  should  be  incorporated  into  law  at  all.  What 
was  that?  It  was  that  under  the  local  option  law'  the  burden  of  proof  vras  upon  the 
good  people,  the  non-w^hiskey  drinking  people,  the  opponents  of  saloon  licenses,  to 
demonstrate  that  they  did  not  want  that  evil  in  their  midst,  and  they  asked,  and 
if  that  request  had  been  addressed  to  a  legislative  body,  I  v>^ould  concede  that  they 
asked  with  equal  reason  as  vehemence,  that  the  burden  of  proof  be  shifted  upon 
the  shoulders  of  the  whiskey  man  instead  of  upon  those  who  were  the  opponents  of 
that  traffic. 

They  said.  "If  you  will  enact  the  Barbour  resolution  into  law.  the  burden  of 
proof  w'ill  shift.  Under  your  law  the  State  treats  this  as  a  legitimate  trafnc.  and 
until  the  requisite  number  of  people  have  petitioned  the  County  Court  and  the  local 
option  election  has  been  called  and  held,  the  burden  of  proof  in  showing  that  the 
people  of  any  county  or  magisterial  district  do  not  want  whiskey,  is  upon  the 
good  people,  and  we  want  to  shift  that  burden  by  this  provision,  and  let  that  burden 
rest  upon  the  shoulders  of  the  applicants  for  license  to  carr3^  on  this  iniquitous 
traffic  themselves."  That  was  the  ground,  if  I  remember  correctly,  and  about  the 
only  ground  that,  judging  this  from  the  standpoint  of  a  legislative  enactment,  com- 
mended Itself  in  the  slightest  to  such  feeble  reason  as  I  could  bestow  upon  the  con- 
sideration of  this  matter.  Let  us  see.  Have  they  shifted  the  burden  of  proof?  Yes, 
under  some  circumstances  they  have,  and  under  others  they  have  not. 

The  astute  young  representative  from  Culpeper    (Mr.   Barbour)    w^ho  would  sit 


21o4z  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

astride  this  popular  wave,  found  this  measure  incurred  opposition  in  committee  of 
members  of  the  committee  in  whose  counties  the  status  of  local  option  prevailed; 
and  after  we  had  heard  all  of  this  convincing  reason  and  logic  as  to  the  question 
upon  whose  shoulders  the  burden  of  proof  should  rest,  the  determination  of  local 
option/  the  gentleman  discovered  that  it  v/ould  not  do  to  shift  that  burden  totally, 
because  it  would  not  do  to  interfere  with  or  annul  the  local  option  laws  of  the  State 
of  Virginia.  Whether  that  was  his  original  purpose  or  a  subsequent  one,  i  care  not, 
nor  do  I  mean  positively  to  assert  that  such  is  the  case,  but  let  us  consider  it  from 
either  aspect.  The  proposition  as  reported  under  the  persuasive  eloquence  of  the 
distinguished  member  from  Culpeper  by  a  majority  of  this  committee,  has  culmi- 
nated in  a  proposition  the  effect  of  which  I  desire  to  briefly  call  your  attention. 

Mind  you,  the  local  option  laws  of  the  State,  or  the  local  option  status  prevailing 
in  any  county  or  magisterial  district  of  the  State,  is  not  hereby  interferred  with  at 
all.  That  is  the  provision  contained  in  the  committee's  report.  Now,  then,  in  the 
forty-five  counties  of  the  State,  if  the  local  option  law,  by  this  provision,  is  not  in- 
terferred with,  there  is  still  the  right  on  the  part  of  one-fourth  of  the  voters  at  the 
last  preceding  general  election  to  invoke  the  only  true,  authoritative,  legitimate 
and  reliable  test  of  local  sentiment  that  has  e^er  been  given  the  sanction  of  the 
approval  of  any  legislative  body  as  a  means  of  determining  that  sentiment,  to  wit: 
by  an  election  at  the  ballot-box,  by  submitting  this  question  as  to  whether  local  option 
shall  exist  or  not  to  the  arbitrament  of  the  people  in  a  tangible  way.  In  each  mag- 
isterial district  of  those  forty-five  counties,  is  the  burden  of  proof  shifted?  No;  it 
is  still  there.  Now^  let  us  see  about  it.  Suppose  the  requisite  number  petition  the 
court  in  any  one  of  the  forty-five  counties  for  an  election  to  determine  the  local 
option,  or  the  consensus  of  the  wishes  of  a  majority  of  the  people,  and  that  it  be 
determined,  as  a  result  of  that  election,  by  virtue  of  a  statue  now  upon  our  statute 
books,  recognized  by  this  very  provision,  that  local  option  is  not  desired.  We  say 
in  one  breath  that  that  local  option  thus  expressed  at  the  polls  by  secret  ballot 
shall  control  in  this  matter,  and  then  in  the  next  breath  we  say  it  shall  not,  but 
that  the  county  judge  shall  have  the  right  to  again  decide  the  question  as  to  what 
is  the  wish  of  the  people,  upon  petition,  when  under  the  reasonable  and  most  com- 
mendable provisions  of  the  local  option  law  the  test  has  been  once  decided  by  the 
people  concerned  against  local  option  in  that  community.  We  play  fast  and  loose 
with  the  people.    We  blow  hot  and  cold. 

Mr.  Barbour:  Does  the  gentleman  understand  that  there  can  be  no  license 
in  any  county  where  local  option  prevails? 

Mr.  Wescott:  I  hope  that  I,  who  presume  for  so  long  a  time  to  detain  the 
committee  in  the  discussion  of  this  question  am  not  so  absolutely  bereft  of  com- 
prehension as  not  to  understand  that.  If  you  had  waited  a  moment  I  think  I  would 
have  enlightened  you.  Does  the  gentleman  dispute  that  if  this  provision  is  incor- 
pora,ted  in  the  law,  it  does  not  detract  one  iota  from  the  full  force  and  effect  of 
the  local  option  statutes  of  the  State  of  Virginia  as  they  exist  to-day?  Does  it  take 
away  from  them  one  whit  of  efficacy  in  determining  the  consensus  of  any  commun- 
ity?   Not  at  all. 

Then,  if  that  be  true,  there  is  still,  by  a  statute  expressly  recognized  In  this 
Constitutional  article  one  means,  one  method,  the  most  salutary  that  has  ever  been 
suggested  or  invented,  of  determining  the  consensus  of  opinion  in  a  community;  and 
by  this  express  Constitutional  provision  we  recognize  the  continuing  force  of  that 
statute  and  say,  that  the  local  option,  the  consensus  of  opinion  of  that  community 
upon  this  subject,  shall  be  determined  by  election,  and  then  we  take  that  away  result 
and  undo  that  which  we  have  expressly  affirmed,  as  I  will  show  you  in  a  moment. 

Let  us  suppose,  sir,  that  in  one  of  these  forty-five  counties  a  local  option  election 
shall  hereafter  be  held  and  the  people  decide  against  local  option.    Then  comes  in 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  YIRGIXIA.  2135 

*  the  beneficent  wise  effect  of  this  beautifully  concocted  Barbour  scheme  to  shift  the 
burden  after  the  issue  has  been  negatively  determined  by  the  people.  It  has  not  been 
shifted  in  any  other  way.  This  authoritative  decision  of  this  question  made  by  the 
people  concerned  pursuant  to  the  provisions  of  a  statute  that  has  heretofore  been 
enacted,  by  this  Constitutional  article,  goes  for  naught,  is  set  aside  and  wholly 
abrogated,  the  issue  reopened,  and  for  the  first  time  the  burden  of  proof  is  shifted 
expressly  vivified  and  given  life.  The  assent  of  this  Constitutional  body  to  the 
repeal  of  local  option  statutes  is  expressly  withheld  from  any  future  General  Assem- 
bly. We  say  that  notwithstanding  in  that  election,  whether  it  be  for  a  county  or 
magisterial  district,  it  has  been  expressed  as  the  consensus  of  opinion  that  local 
option  should  not  exist,  still,  before  any  one  can  procure  license  for  retail  sale  of 
liquor  the  applicant  shall  undergo  still  another  local  option  test.  This  is  so  incon- 
sistent as  to  be  absurd. 

Now,  gentlemen,  you  have  an  opportunity  to  contemplate  the  detail  working 
of  the  beautiful  scheme  which  is  here  proposed  to  a  dignified  body  engaged  in  Con- 
stitution-making. Notwithstanding,  by  a  method  expressly  ratified  and  held  suf- 
ficient under  your  Constitution,  the  right  of  that  community  to  local  self-govern- 
ment has  given  expression  in  every  voting  precinct  in  it  to  the  view,  to  the  opinion 
and  to  the  option,  that  liquor  shall  not  be  sold,  you  say,  "We  will  shift  this  burden 
onto  the  liquor  men  when  you  come  to  get  your  license;  and  whilst  the  burden  of 
proof  before  was  on  us,  the  temperance  people,  now  the  burden  of  proof  is  on  you." 

That  is  the  only  sort  of  shifting  of  burden  of  proof  this  thing  does.  In  effect, 
the  advocates  of  this  measure  would  make  this  Convention  say:  "This  is  a  Republi- 
can form  of  government,  and  the  will  of  a  majority  of  the  people  concerned  in  this 
matter  is  all-powerful  and  must  prevail:  provided,  however,  that  you  determine  this 
question  -in  a  certain  way,  but  if  you  fail  so  to  determine  it,  the  will  of  a  majority 
is  wrong,  absolutely  worthless  and  meaningless,  and  we  will  attach  no  legal  signifi- 
cance whatever  thereto." 

That  is  the  proposition.  That  is  local  option,  I  say,  of  an  anomalous  character, 
with  a  constitutional  flavor,  which  I  do  not  believe  in  the  whole  range  of  legislative 
or  constitutional  experience  could  ever  be  equalled  in  its  absurdity.    That  is  the 

character  of  provision  that  you  gentlemen  are  asked  to  adopt  in  your  Constitution  

the  embodiment  of  the  slight-of-hand  principle,  now  you  see  it  and  now  you  do  not 
see  it,  in  the  Constitution  of  your  State. 

Gentlemen,  I  can  scarcely  conceive  that  a  majority  of  the  members  of  this  body, 
notwithstanding  the  power  of  the  value  of  influence  that  confronts  us  with  this 
irrational  demand  for  this  species  of  legislation — and  I  have  myself  been  made  to 
feel  it.  as  every  other  man  here  has  felt  it — will  not  rise  to  a  proper  sense  of  your 
duty,  fittingly  discharged,  and  repudiate  it,  despite  the  powerful  influence  which 
urges  us  on  to  the  commission  of  such  egregious  folly. 

Now,  just  a  word,  and  I  shall  have  concluded.  My  only  apology .  for  presuming 
to  detain  you  so  long  in  the  discussion  of  this  matter  is  the  fact,  to  v/hich  I  have 
heretofore  adverted,  that  I  feel  I  ovve  it  to  myself,  to  my  constituents,  to  each  and 
every  of  the  petitioners,  hundreds  though  they  have  been,  who  have  sent  up  this 
thoughtless  request,  to  give  some  reasons  for  the  faith  that  is  within  me  In  & 
matter  of  such  vital  importance  as  this;  and  I  trust  that  apology  will  be  accepted 
by  the  members  of  this  committee. 

Another  objection  I  had  to  this  measure,  gentlemen,  even  If  all  those  which  I 
have  enumerated  shall  have  utterly  failed  in  finding  lodgment  in  your  reason,  as 
the  groundwork  upon  which  to  base  your  vote  in  opposition  to  this  measure,  Is  that 
I  believe  in  many  of  the  counties — I  do  not  say  all  of  them — of  the  State,  my  own, 
for  instance;  in  fact,  in  that  class  of  counties  where  the  sale  of  liquor  Is  not  In  the 
hands  of  men  engaged  in  general  mercantile  business — now,  mark  that  exception; 


2136 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


I  will  address  myself  to  it  subsequently — this  measure,  if  incorporated  in  our  fun- 
damental law,  would  result  in  practical  prohibition.  You  say,  "If  the  sentiments 
you  have  uttered  on  this  subject  be  true,  why  should  you  stand  up  and  express  them 
as  reasons  for  your  refusal  to  give  your  assent  to  this  measure?"  I  say,  gentle- 
men, if  there  were  no  other  reasons,  if  every  one  which  I  have  endeavored  to  ad- 
dress myself  to  and  enumerate  did  not  in  fact  exist,  I  would  withhold  my  assent 
from  this  proposition  on  that  account,  because  I  do  not  believe  it  is  wise  legisla- 
tion. I  believe  there  is  wisdom,  in  the  utterance  of  one  of  the  most  eminent  divines 
of  the  State,  when  he  said,  that  "if  the  temperance  cause  may  be  saved  from  its 
friends;  it  can  easily  take  care  of  its  enemies."  I  believe  it  unwise  because  I  have 
had  an  opportunity,  which  I  think  has  not  been  equalled  by  many  members  of  this 
body,  to  observe  the  effects  of  drastic,  prohibitory  liquor  selling  legislation  through- 
out the  United  States.  I  lived  in  a  sister  State  in  the  West  when  that  craze  reached 
its  acme  in  the  States  of  Iowa  and  Kansas,  and  I  have  seen  with  my  own  eyes,  not 
once,  but  repeatedly,  there  as  well  as  upon  the  native  soil  where  first  I  saw  heaven'6 
light,  a  living,  actual  attestation  of  my  contention  that  prohibition  under  all  cir- 
cumstances does  not  prohibit;  and  for  that  reason  I  am  opposed  to  it. 

Prohibition  of  this  traffic,  from  my  standpoint,  is  a  good  thing  when  there  is 
sufficient  impetus,  a  sufficient  moral  force  and  conviction  behind  those  laws  in  a 
community  to  have  them  enforced,  and  only  then.  I  have  seen  its  baneful  effects 
in  my  own  county,  where  we  had  local  option,  and  where  we  have  repudiated  it; 
where,  sir,  many  of  the  highest  types  of  Christian  gentlemen  communicants  in  the 
various  churches  have  had  to  stand  almost  at  arms'  length  with  their  several  pastors 
in  asserting  their  right  to  vote  against  local  option,  and  have  done  it,  because,  in 
their  opinion,  it  was  an  unqualified  curse  upon  our  community. 

Such  is  not  the  experience  all  over  the  State.  I  ask  no  man  to  measure  his  corn 
by  my  half-bushel.  I  am  speaking  of  facts.  The  criminal  records  of  the  courts  of 
the  Eastern  Shore  will  attest  every  word  I  have  uttered.  There  sits  upon  this  floor 
now  a  gentleman  who  has  had  the  proprietors  of  not  less  than  a  dozen  of  these 
speak-easies,  upon  whom  to  impose  the  penalties  of  the  law,  at  a  single  term  of 
court,  where  local  option  had  been  voted  for,  and  where  the  sentimeiit  in  favor  of 
non-liquor  selling  was  not  strong  enough  to  enforce  it.  There  has  never  been  a 
period  in  the  history  of  my  county  when  that  sentiment  was  sufficiently  strong  to 
secure  the  beneficent  results  which  the  advocates  of  this  measure  are  hoping  for. 

Gentlemen,  I  want  to  aver,  with  whatsoever  credit  my  assertion  may  give  it, 
to  you  gentlemen  who  have  never  had  an  opportunity  to  v/itness  such  a  condition, 
that  if  there  ever  was  in  the  history  of  civilzed  communities  a  condition  which  waj? 
damning  and  demoralizing  to  the  uttermost,  it  is  that  status  where  the  law  says 
liquor  shall  not  be  sold,  and  yet,  where  there  are  hundreds  of  places  which  are 
openly,  hourly,  daily,  conspicuously  exposing  it  for  sale,  and  yet  go  unwhipped  of 
justice. 

Now,  gentlemen,  I  have  said  prohibition  would  result,  in  my  opinion,  in  certain 
classes  of  communities  from  the  adoption  of  this  article;  but  there  are  other  com- 
munities, and  I  have  in  my  mind's  eye  now  a  county  in  my  congressional  district, 
as  to  which  I  want  to  submit  to  you  what  in  your  opinion  would  be  the  effect  were 
the  members  of  the  Convention  ever  so  far  to  forget  the  objects  and  purposes  for 
which  they  were  assembled,  and  the  limitations  of  their  powers  and  duties  here,  as 
I  conceive  them,  as  to  enact  any  such  anomalous  piece  of  experimental  legislation 
as  this  into  our  Constitution. 

I  have  in  my  mind  a  county  wherein  there  never  has  been  a  local  option  elec- 
tion, where  the  campaign  which  has  been  waged  from  one  end  of  these  United 
States  to  the  other  of  education  and  moral  suasion  upon  this  subject  has  alone  been 
waged — and  may   God  give  impetus,   force  and  effectiveness  to   that  campaign  in 


DEBATES  OF  THE  C OXSTITUTIOXAL  COXA^EXTIOX  OE  YIEGIMA.  '  2 137 


every  hamlet  of  our  fair  land  which  inyolves  resort,  as  I  contend,  to  the  only  methods 

that  erer,  in  the  history  of  a  highly  civilized  race  have  been  efficacious  in  reformation 
of  the  human  family  and  inducing  them  to  turn  aside  from  any  sort  of  deleterious 
habit  in  which  they  have  an  inherent  legal  right-  to  indulge — in  that  county  to-day 
there  are  but  three  saloons.  Each  one  of  those  saloons  is  kept  by  a  man  engaged 
in  general  merchandise,  a  man  who  carries  the  poor  people  as  creditors  upon  his 
books  from  a  half  to  two-thirds  of  the  year,  and  gets  his  reward  in  the  payment  of 
his  bills  at  the  time  when  his  customers  realize  for  their  year's  work  in  the  dispo- 
sition of  their  annual  crops. 

Xow,  let  me  ask  you  what  effect  do  you  suppose  this  measure  Avill  have  in  that 
county? 

AATien  these  petitions,  or  requests,  are  passed  around  by  the  would-be  licensee, 
when  he  comes  to  a  poor  man,  a  man  who  has  been  the  recipient  of  his  favor,  his 
kindness,  his  indulgence,  whom  he  has  ever  manifested  his  conlidence  in  and  his 
regard  for  by  extending  him  such  indulgence  and  to  whom  he  now  owes  more 
money  than  he  can  possibly  pay,  and  asks  him,  '-Will  you  sign  my  petition?"'  what 
would  you  say  to  him?  It  might  be  disagi^eeable  and  against  your  sentiment,  but 
I  ask  3'ou  whether  yoti  are  a  free  moral  agent  under  those  circumstances? 

And  3'et  every  single  dispenser  of  liquor  in  that  county,  where  there  has  never 
been  a  local  option  election  in  its  history,  is  a  man  of  that  character,  who  carries 
the  great  bulk  of  the  people  on  his  books  almost  from  one  year's  end  to  another. 

There  are  other  reasons,  into  the  details  of  which,  in  this  discussion,  gentlemen,  I 
shall  not  attempt  to  go,  which  I  trust  will,  without  specific  mention,  be  as  obvious 
to  every  member  of  this  body  and  as  worthy  of  earnest  consideration  as  they  appear 
to  me. 

In  conclusion,  gentlemen,  permit  me  to  say  I  am  opposed  to  this  measure  for 
each  and  every  reason  I  have  enumerated.  If  one  alone  of  those  ob^jections  existed 
to  the  exclusion  of  every  other,  and  I  was  the  sole  dissentient  in  this  body.  I  would 
register  my  vote,  my  protest,  against  this  measure  being  adopted  here.  I  hope  the 
members  of  the  Committee  of  the  Whole  will  give  due  regard  to  other  considerations 
than  those  enumerated  which  ought  to  be  as  obvious  to  their  minds  as  they  are  to 
mine.  I  regret  to  have  detained  the  committee  so  long,  and  I  thank  you  for  your 
attention.  (Applause.) 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  of  the  gentle- 
man from  Accomac. 

The  amendment  was  rejected. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Brunswick   (Mr.  Turnbull). 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes.  14 ;  noes,  37. 
Mr.  Lindsay:     Mr.  Chairman,  I  desire  to  offer  this  amendment: 

Strike  out  on  page  7,  line  7,  the  words  "nor  without"  and  insert  "against";  and 
in  the  same  line  strike  out  the  word  "request"  and  insert  ""protest."  The  section 
would  then  read: 

No  license  to  sell  intoxicating  liquors  in  quantities  of  less  than  one  gallon,  or  to 
be  drunk  at  the  place  where  sold,  shall  be  authorized  or  granted  in  any  county  or 
town  of  this  State  for  a  period  of  more  than  twelve  months,  against  the  written 
protest  of  a  majority  of  the  legally  qualified  and  registered  voters,  etc. 

At  this  point  ]\Ir.  Turnbull  resumed  the  chair. 

Mr.  Barbour:  Mr,  Chairman,  before  the  vote  is  taken  in  this  matter  I  am 
going  to  ask  the  indulgence  of  the  committee  whilst  I  attempt  to  state  some  ob- 
jections to  the  amendment  which  has  just  been  read,  offered  by  the  gentleman  from 
Albemarle  (Mr.  Lindsay),  and  at  the  same  time  attempt  to  give  some  reasons  why 
the  resolution  as  reported  by  the  committee  should  be  permitted  to  remain  as  it  is. 
1.3.5 — Const.  Deb. 


2138 


DEBATES  OF  THE  COXSTITUTIO^fAL  CONVENTION  OF  VIRGINIA. 


Before  going  into  that  discussion,  however,  I  desire  to  state  to  the  committee 
what  my  personal  relations,  so  far  as  this  movement  is  concerned,  and  what  my 
personal  opinions  are  in  reference  to  this  question  of  the  regulation  of  the  liquor 
traffic. 

I  will  state,  Mr.  Chairman,  that  I  do  not  believe  in  prohibition,  for  the  reasons, 
to  some  extent,  which  have  been  assigned  by  the  gentleman  from  Accomac  (Mr. 
Wescott).  I  will  state  further  that  I  am  not,  like  him,  a  total  abstainer -from  the 
drinking  of  liquor.  I  take  a  drink  whenever  I  want  it.  Nor,  Mr.  Chairman,  am  I 
one  of  those  who  believe  that  all  saloon-keepers  are  the  worst  people  in  the  world. 
I  do,  however,  believe  that  saloons,  taken  as  a  whole,  are  a  source  of  great  evil  to 
the  public,  and  I  do  not  believe  there  are  half  a  dozen  members  upon  this  floor  who 
do  not  agree  with  me  in  that  proposition. 

My  position  upon  this  question  at  my  home  was  well  understood  when  I  was 
elected  a  member  of  the  Convention.  It  is  true,  no  such  question  was  raised  or 
broached  in  the  canvass,  and  it  never  occurred  to  me  to  propose  any  such  article 
for  the  Constitution.  Such  a  thought  had  never  crossed  my  mind,  Mr.  Chairman, 
until  I  happened  to  be  present  at  a  meeting  of  the  Committee  on  the  Preamble  and 
Bill  of  Rights  one  evening  in  the  Senate  Chamber,  when  a  number  of  ministers  of 
this  city  appeared  before  us  and  presented  their  reasons  for  asking  that  the  prin- 
ciple embodied  in  what  is  now  known  as  the  Barbour-Quarles  resolution  should  be 
embodied  in  the  Constitution.  I  was  not  then  convinced  that  it  was  wise  to  do  so, 
because  I  was  afraid  the  same  reasons  which  apply  to  local  option,  as  it  is  called, 
might  apply  to  this  resolution  and  to  its  results,  that  it  might  not  be  supported  by 
sufficient  public  sentiment  to  make  it  effective;  and  upon  that  question  I  was  in 
doubt  for  some  time,  until,  by  some  inquiries  which  I  instituted  as  to  the  effect  of 
this  principle  as  it  had  been  embodied  in  the  legislation  of  other  States,  I  was  sat- 
isfied it  was  safe,  and  that  no  possible  harm  could  result  from  it.  Until  I  was  sat- 
isfied on  that  point,  I  was  not  willing  to  support  it.  As  soon  as  I  became  satisfied 
that  no  possible  harm  to  temperance  could  result  from  the  resolution,  it  did  not 
take  me  long  to  conclude  that  I  should  support  the  matter  properly  in  the  commit- 
tee and  before  the  Convention. 

Mr.  Chairman,  this  resolution  has  been  attacked  upon  the  ground  that  it  is 
legislation,  and  not  properly  constitutional.  I  differ  from  that  position,  and  it  seems 
to  me  that  if  the  members  of  the  Convention  will  divest  their  minds  of  all  preju- 
dice in  connection  with  it:  if  they  will  take  the  resolution  upon  its  merits  and 
consider  it  carefully,  they  will  see  it  is  in  no  sense  a  statute.  So  far  as  its  being 
a  statute  is  concerned,  it  would  be  totally  ineffective,  because  it  does  not  go  suf- 
ficiently into  detail  to  make  an  effective  statute.  The  only  effect  of  this  resolution 
is  to  fasten  in  the  Constitution  the  principle  of  neighborhood  government  in  a 
matter  of  the  retail  sale  of  liquor.  It  is  absolutely  flexible.  The  application  of  the 
principle  is  left  entirely  to  the  discretion  of  the  General  Assembly  in  each  and  every 
particular.  The  only  effect  of  it  is  to  "fasten  in  the  Constitution  the  principle  that 
no  bar-room  shall  be  opened  in  any  neighborhood  unless  a  majority  of  the  people 
of  that  neighborhood  want  it  and  ask  for  it. 

It  has  been  the  effort  of  the  members  of  the  majority  of  the  committee  to  avoid 
all  detail,  and  for  that  very  reason  it  has  been  subjected  to  some  attack  upon  the 
floor  by  friends  who  favor  the  principle.  It  seems  to  me  they  have  lost  sight  of  the 
fact  that  we  are  not  enacting  a  statute,  but  are  trying  to  fasten  a  principle  in  the 
Constitution. 

The  amendment  offered  by  the  gentleman  from  Warren  (Mr.  OTlahertyl  was  a 
detail  which  the  committee  did  not  think  it  wise  to  incorporate  in  the  measure; 
and  the  same  thing  is  true,  to  a  less  extent,  of  the  amendment  offered  by  the  gentle- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2139 

man  from  Brunswick  (Mr.  Turnbull),  because  the  effect  of  tliat  amendment,  U 
adopted,  would  have  been  to  compel  all  applications  for  liquor  licenses  to  be  pre- 
sented to  courts.  That  is  our  system  at  present,  but  there  is  nothing  in  the  Consti- 
tution which  requires  liquor  licenses  to  be  granted  by  courts,  and  in  some,  at'  least, 
of  the  cities  of  the  State  they  have  excise  boards,  and  it  might  be  developed  that 
it  would  be  wise  to  have  such  boards  in  the  counties  to  pass  upon  these  matters 
instead  of  having  them  passed  by  the  courts. 

We  have  been  attempting  throughout  to  avofd  detail,  to  fasten  this  principle  in 
the  Constitution,  and  to  leave  it  to  the  General  Assembly,  with  which  body  I  am 
perfectly  willing  to  leave  it  to  work  out  these  details,  and  to  cure  defects  and  im- 
perfections in  the  first  draft  of  almost  any  law  that  can  be  proposed,  in  the  view  of 
experience. 

I  have  said,  Mr.  Chairman,  that  the  effort  of  the  committee  in  this  matter  has 
been  to  assert  this  principle,  and  to  have  it  fastened  in  the  Constftution.  When 
you  come  down  to  a  matter  of  that  kind,  when  you  are  asked  to  put  a  principle  in  the 
Constitution,  the  question  is,  is  the  principle  right"?  If  it  is  right,  w^e  can  afford 
to  adopt  it;  if  it  is  not  right,  we  should  not  adopt  i^.  Now,  what  does  this  principle 
involve?     It  involves,  first,  the  majority  rule  in   each  neighborhood  

Mr.  Pollard:  You  just  stated  it  would  insure  majority  rule  in  each  neighbor- 
hood. I  see  that  the  clause  provides  that  the  applicant  shall  have  a  majority  in 
number  in  those  v\'ho  voted  at  the  last  preceding  election. 

Mr.  Barbour:     Yes,  sir. 

Mr.  Pollard:  Take  for  illustration  one  of  our  precincts  here  at  the  last  regular 
election.  There  are  more  than  500  voters  in  that  precinct,  and  yet  only  about  forty 
voted.  According  to  this  plan,  twenty-one  voters  of  that  precinct  could  fasten  a  bar 
on  the  precinct,  although  a  majority  of  the  voters  might  be  against  the  bar;  so  it 
would  look  to  me  as  if  it  was  minority  rule. 

Mr.  Barbour:  Well,  if  the  gentleman  will  permit  me,  I  will  try  to  show  the 
committee  that  this  provision  in  the  report  of  the  committee  is  sound  public  policy, 
in  this,  that  if  you  have  this  provision  in  the  Constitution,  it  will  be  the  last  time 
that  any  election  in  one  of  your  precints  is  carried  by  a  majority  of  forty  votes. 
It  will  have  a  tendency  to  make  your  best  class  of  citizens  come  out  and  vote,  so 
that  they  may  preserve  their  right  to  pass  upon  this  other  question  in  which  they 
are  much  more  deeply  interested  probably.  You  will  get  a  class  of  voters  to  come 
out  and  to  participate  in  3^our  elections  that  3-ou  cannot  get  to  come  out  in  any  other 
way;  and  I  submit  it  is  a  desirable  class  of  citizens  to  induce  to  exercise  their  suf- 
frage. 

That  is  one  reason  for  it.  I  find  that  exactly  the  same  provision — at  the  time 
this  draft  was  drawn  it  was  not  known  to  me  exactlj^ — applies  in  reference  to  the 
local  option  elections  now,  that  one-fourth  of  the  voters  who  voted  at  the  last  pre- 
ceding election  may  petition  for  the  local  option  election. 

Mr.  Pollard:    But  do  they  not  decide  the  question? 

Mr.  Barbour:  No.  sir:  they  decide  the  question  as  to  whether  there  will  be  an 
election  or  not. 

On  motion  of  Mr.  Green,  the  committee  rose  and  the  President  resumed  the  chair. 
The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-mor- 
row, Tuesday,  February  4,  1902,  at  10  o'clock  A.  M. 


2140  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


TUESDAY,  February  4,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  purpose  of  considering  the  report  of  the  Committee  on  Corporations, 
Mr.  Eggleston  in  the  chair. 

Mr.  Braxton:  Mr.  Chairman  and  gentlemen  of  the  committee,  when  the  Com- 
mittee on  Corporations  first  began  its  work  last  summer  it  found  that  it  was  labor- 
ing under  a  disa.dvantage  which  many  of  the  standing  committees  did  not  have. 
When  this  committee  first  began  its  work  it  was  confronted  with  the  fact  that  there 
is  not,  at  present,  in  our  Constitution  any  article  on  corporations  to  guide  us  or 
work  by,  notwithstanding  the  fact  that  in  nearly  every  modern  constitution  existing 
In  this  country  there  is  an  article  of  more  or  less  extent  bearing  upon  the  subject. 
In  order,  therefore,  to  cut  out  our  work  and  to  get  something  to  work  upon,  the 
first  thing  that  the  committee  did  was  to  have  transcribed  the  various  sections  and 
provisions  of  the  other  constitutions  throughout  the  Unil:ed  States  bearing  upon  this 
important  subject.  Their  method  of  procedure  was  to  take  these  various  sections 
and  to  consider  them,  reading  them  over  again  and  again,  and  excluding  them  from 
time  to  time  as  we  found  that  they  were  not  suited  to  the  conditions  which  con- 
fronted us  here.  It  was  a  method  of  exclusion  whereby  we  thought  we  would  ulti- 
mately get  down  to  a  basis  which  would  be  satisfactory  to  the  conditions  as  they 
exist  in  Virginia. 

In  order  to  have  a  more  intelligent  appreciation  of  the  merits  or  demerits  of 
these  various  provisions  we  did  what  we  could,  after  great  labor  and  effort,  to  ascer- 
tain how  these  various  provisions  had  operated  in  other  States,  whether  they  had 
been  successful  or  unsuccessful,  whether  they  had  proven  defective  or  otherwise, 
and,  so  far  as  we  could,  to  learn  exactly  what  construction  had  been  put  upon  them 
by  the  courtsi  in  the  various  States.  As  we  would  go  over  the  article,  from  time  to 
time,  v/e  would  become  satisfied  that  first  one  provision  and  then  another  was  not 
suited  to  the  conditions  as  they  prevailed  in  this  State,  and  it  was  eliminated.  As 
you  can  well  understand,  the  closer  we  got  down  to  the  bottom  the  more  difficult  It 
was  to  decide  these  questions,  and  the  more  doubt  there  was  in  the  minds  of  the 
committee,  frequently,  as  to  whether  to  adopt  or  reject  certain  provisions.  After 
awhile,  in  order  to  get  our  work  more  into  shape,  the  committee  concluded  to 
adopt,  tentatively,  as  we  expressed  it,  certain  provisions,  so  as  to  make  an  outline 
of  an  article  for  still  further  consideration  and  trimming  down  and  modification. 

We  adopted  the  article  in  this  tentative  manner,  with  the  fullest  explanation  by 
each  member,  as  he  voted  for  it,  that  it  was  only  tentative,  and  only  intended  to  be 
something  to  work  upon. 

The  committee,  I  assure  you,  has  always  been  actuated  by  the  keenest  sense 
of  responsibility,  and  has  possessed  the  fullest  kuowledge  of  the  importance  of  the 
matter  it  had  to  deal  with,  and  a  most  earnest  desire  to  err  always  on  the  safe  side 
and  on  the  side  of  conservatism.  The  committee,  wishing  to  get  all  the  light  on 
the  subject  it  could  after  about  eight  or  ten  of  these  sections  had  been  adopted, 
the  newspapers  were  permitted  to  publish  them,  and  we  supposed  it  would  be  pei* 
fectly  well  understood  that  they  were  published  merely  as  tentative  articles  and  that 
they  were  only  a  part  of  the  suggested  article  on  corporations  to  be  embodied  in  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTION  OF  YIEGIXIA.  2141 


Constitution.  Unfortunately  for  the  committee  those  sections  were  published  as  & 
complete  article,  and  as  an  article  complete  not  only  in  its  entirety,  but  complete 
so  far  as  its  consideration  was  concerned,  as  the  article  which  the  committee  had 
framed  and  was  about  to  report  to  this  Convention. 

It  is  needless  to  say  that  we  secured  the  criticism  we  were  after;  but  that 
»i'iticism  was  very  unfair  to  the  committee  because  many  people  among  the  public 
at  large  were  led  to  believe  that  this  was  a  complete  article,  a  final  article,  the* 
concluded  work  of  the  committee,  when  it  was  only  a  part  of  a  mere  outline,  and 
tentative  lay  figure,  as  it  were,  to  work  upon.  I  mention  these  matters  in  justice 
to  the  committee. 

Immediately  after  the  tentative  adoption  of  these  sections,  the  committee  con- 
tinued its  investigations  and  labors  until  at  last  a  majority  of  the  committee,  eight 
out  of  eleven^  agreed  upon  the  article  which  finally  has  been  reported  to  this  body, 
and  which  is  now  here  for  your  consideration.  Much  to  our  regret  two  of  our  most 
distinguished  members  were  unable  to  agree  with  us  on  some  of  the  most  essential 
particulars,  and  they  have  filed  a  minority  report  setting  forth  their  view^s.  These 
two  reports,  while  they  -agree  in  some  respects,  present  the  most  radical  difference 
of  opinion  in  many  others.  I  will  not  at  this  time  attempt  to  go  into  a  detailed 
discussion  of  each  and  every  section  of  this  article  reported  by  the  majority;  but 
will  leave  that  for  the  occasion  when  each  section  is  taken  up  for  final  discussion 
and  adoption  b3^  the  Committee  of  the  Whole. 

The  first  section  iu  the  article,  as  it  is  presented  to  you  now,  is  merely  a  section 
setting  forth  certain  conventional  definitions,  terms  and  phrases  used  in  the  report 
to  avoid  the  constant  repetition  of  those  explanations  every  time  the  phrase  is  used. 

The  second  article  or  section  is  one  about  which  I  presume  there  will  be  no 
difference  of  opinion.  It  is  intended  merely  to  prevent  private  and  special  legisla- 
tion on  the  subject  of  granting  charters. 

I  presume  that  this  body  is  entirely  agreed  on  the  question  of  the  expediency 
of  such  a  provision.  I  think,  in  substance  and  outline,  it  has  already  been  passed 
upon  in  the  report  of  the  Committee  on  the  Legislative  Department,  and,  as  will 
be  pointed  out  to  you  when  we  come  to  technically  and  critically  consider  this  sec- 
tion, there  are  some  provisions,  in  general  terms,  embodied  in  the  legislative  report, 
which  our  committee  thought  it  was  necessary  to  refer  to  more  particularly,  by  & 
fuller  and  more  carefully  drawn  article. 

The  third  and  fourth  sections  of  this  report  deal  with  the  establishment  of  a 
corporation  commission,  prescribing  its  powers  and  specifying  its  duties.  It  Is 
needless  for  me  to  say  to  this  Convention  that  this  is  by  far  the  most  important 
provision  contained  in  this  report.  It  is  the  most  far  reaching  in  its  effects,  the 
one  which  has  attracted  the  greatest  amount  of  attention,  and  the  one  in  which  the 
public  is  most  interested.  In  its  importance  it  completely  overshadows,  I  may 
say,  everything  else  in  the  report. 

While  it  is  true  that  this  commission  is  a  corporation  commission,  clothed  with 
certain  powers  and  charged  with  certain  duties  in  reference  to  corporations  gener- 
ally, yet  its  powers  and  its  duties,  as  they  affect  every  corporation  other  than  trans- 
portation and  transmission  companies  are  practically  the  same  powers  and  duties 
which  are  now  being  exercised  by  other  departments  of  the  government,  which  are 
simply  collected  together  in  this  one  department  for  reasons  which  I  will  explain 
to  you  later  on. 

rts  powers  and  functions,  so  far  as  they  affect  any  other  corporation  than  trans- 
portation and  transmission  companies,  are  practically  ministerial  only.  The  novel- 
fy,  the  pecularity  and  the  essential  features  of  this  corporation  commission,  as 
we  report  it,  is  w^ith  reference  to  its  powers  and  its  duties  affecting  transportation 
and  transmission  companies,  and  railroads  '"'par  excellence." 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Chairman,  the  question  of  the  control  and  regulation  of  railroad  companies 
and  the  fixing  of  their  rates  of  charges  is,  I  presum^e,  the  greatest  and  most  im- 
portant economic  question  before  the  civilized  world.  Fifty  years  ago  the  question 
of  transportation  was  not  so  important,  but  to-day  it  enters  into  every  considera- 
tion; it  affects  every  branch  of  business;  it  infringes  upon  every  human  being  in 
this  land.  So  far-reaching,  so  important,  so  extensive  is  the  question  of  transpor- 
tation rates  that,  as  has  been  said  and  truly  said,  the  right  to  control  railroad  rates 
is  equivalent,  in  its  importance  and  effect  upon  the  community,  to  the  right  to  lay 
taxes.  That  is  true,  but  it  is  not  half  the  truth.  The  money  that  the  people  of  this 
country  pay  to  transporation  companies  is  largly  in  excess  of  the  money  they  pay 
for  taxes.  It  may  be  that  it  is  rightfully  so;  but  whether  rightfully  or  wrongfully, 
I  take  it  that  no  man  will  say  that  the  right  to  lay  such  tribute  upon  the  people 
should  be  placed  in  the  uncontrolled  power  and  left  to  the  arbitrary  discretion  not 
of  any  department  of  government,  but  to  the  people  into  whose  pockets  the  very 
tribute  that  they  lay  passes.  A  recent  writer  on  this  subject  in  the  North  American 
Review  expresses  this  matter  much  better  than  I  can,  and  I  read  it: 

"There  is  no  element  in  the  economic  world  that  is  so  pervasive  as  the  cost  of 
transportation.  It  constitutes  an  integral  part  of  the  cost  of  every  article  of  food 
and  clothing  used  by  every  man,  woman  and  child,  and  of  all  materials  that  enter 
into  the  construction  and  furnishing  of  a  habitation  for  man,  and  the  heating  and 
lighting  of  such  habitation;  and,  in  fact,  of  everything  that  is  employed  for  the 
sustenance  and  comfort  and  gratification  of  man.  To  the  man  who  ultimately 
meets  it  in  the  price  of  what  he  consumes  it  comes  as  mysteriously  as  the  wind 
which  'bloweth  where  it  listeth,  and  none  can  tell  whence  it  cometh  and  whither  it 
goeth.'  It  is  collected  as  silently  and  as  unconsciously  to  the  actual  payer  as  the 
customs  duties  of  the  government,  the  levying  of  which  is  the  subject  of  deliberate 
and  sharply  contested  legislation,  over  vs^hich  the  entire  country  is  thrown  into  a 
paroxysm  every  few  years.  But  the  levying  of  freight  charges,  which  for  railway 
traffic  alone  aggregate  annually  five  times  as  much  as  the  customs  duties,  is  left 
wholly  to  the  irresponsible  and  self-interested  action  of  railway  officials,  without 
any  practical  governmental  supervision,  and  with  no  restraint  whatever  except  that 
imposed  by  the  natural  law  which  determines  'what  the  traffic  will  bear.'  The  figures 
furnished  by  the  statistical  bureau  of  the  Treasury  Department  of  the  United  States 
show  that  the  important  duties  collected  during  the  three  years  from  1898  to  1900, 
inclusive,  aggregated  $581,001,542,  and  the  freight  earnings  of  the  railroads  of  the 
country  for  the  same  period,  according  to  the  reports  of  the  Interstate  Commerce 
Commission  aggregated  $2,843,038,287. 

''As  is  well  known,  a  process  of  amalgamation,  or  unification,  of  interest  has 
been  going  on  for  some  years  past  between  competing  lines  of  railway,  which  has 
during  the  last  two  years  assumed  enormous  proportions,  and  competition  is  fast 
becoming  extinguished.  During  the  period  last  mentioned  a  large  proportion  of  the 
railway  mileage  of  the  country,  variously  estimated  by  different  authorities  as  ag- 
gregating from  101.000  to  112,000  miles,  constituting  not  less  than  three-fifths  of  the 
entire  railway  mileage  of  the  United  States,  has  been  brought  under  the  absolute 
control  of  five  great  capitalists,  and  the  process  is  still  going  rapidly  forward.  This 
constitutes  a  power  for  extorting  money  from  the  public  the  exercise  of  which,  how- 
ever fair-minded  may  be  the  individuals  in  whose  hands  it  is  now  vested,  it  is  cer- 
tainly unwise  to  permit,  without  throwing  around  it  such  safeguards  for  the  pro- 
tection of  the  public,  by  governmental  authority,  as  shall  effectually  prevent  its 
abuse;  otherwise  it  is  appalling  to  contemplate  the  results  that  m.ay  ensue." 

"If  consumers,  who  ultimately  bear  the  cost  of  transportation  in  tlie  price  of 
everything  they  use;  or  producers,  the  local  value  of  whose  products  is  determined 


DEBATES  OE  THE  COXbTITUIIOXAL  COXVEXTIOX  OE  VIKGIXIA. 


21^3 


by  deducting  from  their  value  at  the  place  of  consumption  the  cost  of  transporta- 
tion  thereto,  are  to  be  protected  from  the  rapacity  of  the  common  carriers  of  the 
country,  it  must  be  accomplished  by  a  body  organized  by  the  government  for  the 
purpose,  with  due  authority  to  administer  equal  justice  between  the  two  opposite  in- 
terests. The  necessity  of  administering  justice  in  relation  to  these  interests  by  a 
different  method  from  that  pursued  in  contentions  arising  between  parties  to  ordi- 
nary commercial  transactions,  lies  in  the  fact  that  the  conditions  surrounding  the 
two  classes  of  cases  are  not  analogous.  The  rate  charged  for  transportation  is  not 
the  subject  of  negotiation  and  contract  between  the  two  interested  parties,  but  is 
determined  by  the  will  of  the  carrier  and  enforced  upon  the  shipper.  The  party  by 
whom  it  is  primarily  paid  is  a  middle-man,  who  has  no  direct  interest  in  it;  and 
the  consumers,  between  whom  it  is  distributed  and  upon  whom  it  finalh'  falls,  have 
no  cause  of  action  for  recovery  in  case  the  charge  is  extortionate  or  unjust.  Their 
only  protection  lies  in  the  proper  exercise  of  governmental  authority  in  the  preven- 
tion of  such  a  charge  at  the  outset." 

In  the  report  of  the  Interstate  Commerce  Commission,  submitted  to  Congress 
on  January  4,  1901,  the  commission  states: 

"  Tn  every  part  of  this  country  carriers  have,  by  concerted  action,  withotit  any 
notice  to  shippers,  and  indeed  against  the  vehement  protest  of  shippers,  advanced 
their  rates  upon  a  large  portion  of  the  merchandise,  carried  under  class  rates,  an 
average  of  one-fourth,'  and  justlj'  remarks  that,  'when  hundreds  of  shippers  com- 
plain that  a  public  servant  has  perpetrated  a  wrong  upon  the  public  in  the  discharge 
of  a  public  duty,  there  should  be  some  public  tribunal  before  which  inquiry  <?an  be 
had  and  by  which  redress  can  be  administered.' "' 

Mr.  Chairman,  there  is  a  good  deal  of  talk  about  the  government  having  no 
right  to  control  railroad  rates.  There  is  a  good  deal  of  clap-trap  to  the  effect  that 
if  the  government  can  control  railroad  rates,  it  can  control  your  btisiness  and  my 
btisiness — not  only  the  bitsiness  of  private  corporations,  but  the  btisiness  of  indi- 
viduals. I  hope  it  is  unnecessary  for  me  to  argue  at,  any  length  upon  the  absurdity 
of  such  a  proposition  before  a  body  as  learned  as  this.  As  was  stated  by  the  United 
States  Supreme  Court  in  the  celebrated  case  of  Smith  vs.  Ames,  ;S:nown  as  the  Ne- 
braska Railroad  Commission  case,  in  169th  U.  S.: 

"A  railroad  is  a  public  highway,  and  none  the  less  so  because  constructed  and 
maintained  through  the  agency  of  a  corporation  deriving  its  existence  and  powers 
from  the  State.  Such  a  corporation  was  created  for  public  purposes.  It  performs 
a  function  of  the  State.  Its  authority  to  exercise  the  right  of  eminent  domain  and 
to  charge  tolls  was  given  primarily  for  the  benefit  of  the  public.  It  is,  therefore, 
under  governmental  control — subject,  of  course,  to  the  constitutional  guarantees  for 
the  protection  of  its  property.  It  may  not  fix  its  rates  with  a  view  solely  to  its 
own  interests  and  ignore  the  rights  of  the  public:  but  the  rights  of  the  public  would 
be  ignored  if  rates  for  the  transportation  of  persons  or  property  on  a  railroad  were 
exacted  without  reference  to  the  fair  value  of  the  property  used  for  the  public  or 
of  the  services  rendered,  and  in  order  simply  that  the  corporation  may  meet  oper- 
ating expenses,  pay  the  interest  on  its  obligations,  and  declare  a  dividend  to  stock- 
holders. 

If  a  railroad  corporation  has  bonded  its  property  for  an  amount  that  exceeds 
its  fair  value,  or  if  its  capitalization  is  largely  fictitious,  it  may  not  impose  upon 
the  public  the  burden  of  such  increased  rates  as  may  be  required  for  the  purpose 
of  realizing;  profits  upon  such  excessive  valuation  or  fictitious  capitalization:  and 
the  apparent  value  of  the  property  and  franchises  used  by  the  corporation,  as  rep- 
resented by  its  stocks,  bonds  and  obligations,  is  not  alone  to  be  considered  when  de- 
termining the  rates  that  may  be  reasonably  charged. 

"A   corporation  maintaining   a  public  highway,   although  it  owns   the  property 


2144 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  YinGINTA. 


It  employs  for  accomplishing  public  objects,  must  be  held  to  have  accepted  its  rights, 
privileges  and  franchises  subject  to  the  condition  that  the  government  creating  it, 
or  the  government  within  whose  limits  it  conducts  its  business,  may  by  legislation 
protect  the  people  against  the  exaction  of  unreasonable  charges  for  the  services  ren- 
dered by  it." 

Now,  Mr.  Chairman,  we  have  seen  what  the  highest  court  in  the  land  has  said 
upon  the  subject;  that  in  fixing  their  rates  and  charges  it  is  not  proper  that  the 
railroads  should  consider  alone  their  own  interests  ^  that  it  is  not  proper  they 
should  consider  alone  the  question  of  earning  dividends  on  their  stock  that  is  wat- 
ered and  inflated;  and  I  ask  this  body  if  it  can  be  expected  of  railroad  men  more 
than  is  in  weak  human  nature,  to  say  that  when  they  are  left  with  the  uncontrolled 
right  to  fix  these  rates,  to  get  out  of  the  public  all  that  "the  trafnc  will  bear,"  that 
they  will  consider  anything  else  in  fixing  that  rate  but  their  own  interest.  If  they 
do,  then,  sir,  they  are  vastly  ahead  of  ordinary  humanity,  infinitely  better  than 
men  who  engage  in  any  other  business.  If  it  be  true  that  the  public  has  the  right 
to  control  these  rates,  if  it  be  true  that  these  rates  must  be  fixed  with  as  much  re- 
gard to  the  public  interests  as  the  interests  of  the  roads,  then  I  say  it  is  the  in- 
evitable conclusion  that  the  public  ought  to  see  what  those  rates  are,  ought  to  con- 
trol those  rates,  and,  in  order  to  prevent  tlie  practical  impossibility  oi  redress,  ought 
to  fix  those  rates  in  advance. 

No  private  man  and  no  private  corporation  has  the  right  either  to  build  or  to 
operate  a  railroad.  They  cannot  condemn  property.  They  cannot  run  flieir  trains 
across  the  public  highways.  It  is  only  because  of  one  of  the  Highest  rights  and  privi- 
leges of  sovereignty,  the  right  of  eminent  domain,  that  railroads  are  enabled  to  carry 
on  this  business.  You  and  I,  and  all  of  us,  Iiave  contributed  to  the  establishment, 
the  maintenance  and  the  support  of  a  government,  and  we  have  agreed  to  confer 
upon  it  absolute  sovereignty  as  far  as  it  is  possible,  under  the  Federal  Constitution. 
We  do  that  for  what  reason?  We  do  it  in  order  that  we  ourselves  may  be  protected 
in  our  lives,  in  our  liberty,  in  our  property,  and  in  the  legitimate  pursuit  of  hap- 
piness. 

What  right,  then,  has  that  government,  which  we  have  constructed,  and  which 
we  are  taxed  to  support,  to  take  those  high  privileges  which  we  have  conferred  upon 
it  for  our  benefit,  or  any  of  them,  and  give  them  away  to  some  other  power  to  use 
for  our  destruction? 

The  whole  theory  and  the  only  theory  upon  which  the  right  of  eminent  domain 
is  conferred  upon  the  roads  is  that  these  roads  will  use  it,  as  the  government  ought 
to  use  it,  for  the  good,  the  benefit,  the  advancement  of  the  welfare  of  the  public, 
and  not  for  their  private  use  and  private  benefit. 

The  government  having  parted,  therefore,  with  its  high  sovereign  power  for  a 
consideration,  it  owes  it  to  the  public  who  constituted  it;  it  owes  it  to  its  own  wards, 
the  people,  to  see  that  the  corporation  to  whom  it  has  imparted  these  powers  shall 
render  the  consideration  for  which  it  received  the  powers.  It  is  the  duty  of  the 
government  to  the  people  who  support  it  to  see  when  it  has  parted  with  its  right  of 
eminent  domain  for  the  consideration  that  public  service  be  rendered  tTiat  such  pub- 
lic service  is  rendered;  to  see  that  it  is  not  perverted,  to  see  that  this  sword  and 
shield  which  we  have  put  in  their  hands  for  our  protection  be  not  turned  against 
us  for  our  destruction. 

I  take  it,  Mr.  Chairman,  that  it  never  would  have  entered  the  mind  of  any  sane 
man  or  of  any  government,  originally  to  have  parted  with  these  great  powers  without 
taking,  at  the  same  time,  adequate  means,  which  we  are  now  trying  to  take,  to  see 
that  it  got  the  consideration  for  which  alone  it  parted  with  them,  and  to  see  that  the 
powers  were  not  abused;  but  at  that  time,  under  conditions  as  they  then  existed, 
it  was  supposed  that  competition  amongst  these  carriers  would  keep  them  within 


DEBATES  OE  THE  COXbTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2145 


bounds,  and  would  prevent  their  abuse  of  this  great  power  conferred  upon  them, 
and  that  that  was  all  the  protection  the  people  wanted — the  protection  they  would 
get  from  competition  amongst  the  carriers;  that  all  the  assurance  the  people  wanted, 
that  the  power  given  the  railroads  would  be  used  for  the  advancement  of  the  public 
welfare,  would  result  from  competition.  In  other  words,  the  only  thing  that  stood 
between  the  public  and  a  misuse  of  these  powers  by  the  corporation  was  the  sup- 
posed effect  of  competition  as  it  existed  at  that  day. 

Mr.  Chairman,  as  we  all  know,  railroad  competition  is  to-day  an  irridescent 
dream.  As  I  have  just  stated  to  you,  three-fifths  of  the  railroads  of  the  Tnited 
States  are  in  the  absolute  domination  and  control  of  five  capitalists.  As  was  prac- 
tically conceded  before  our  committee  by  some  distinguished  gentlemen  representing 
the  railroad  interests,  nearly  every  trunk  line  in  this  State,  with  one  or  two  excep- 
tions, is  under  the  domination  and  control  of  the  interests  which  control  the  Penn- 
sylvania railroad  system.  There  is  no  longer  competition.  But  that  is  not  the  end. 
What  little  competition  there  is  left  to-day  is  vanishing  away  like  the  mists  of  the 
morning. 

In  the  Richmond  Neics  of  January  27.  1902 — and  I  think  I  am  safe  in  reading 
from  this  paper,  as  not  being  a  paper  prejudiced  in  my  favor,  in  smy  event — I  find 
this  item: 

"May  combine  all  the  railroads." 

(Not  satisfied  with  three-fifths.) 

"May  combine  all  the  railroads.  Four  mysterious  securities  companies  formed 
under  Jersey  laws.  Believed  on  AVall  street  that  a  stupendous  railroad  organization 
is  about  to  be  started." 

"The  Brooklyn  Eagle — (which  I  understand  is  a  very  reliable  publication)  — 
"in  its  issue  of  yesterday  says  that  within  the  last  few  weeks  four  securities  com- 
panies have  been  formed  under  the  laws  of  New  Jersey,  and  while  everything  con- 
nected with  the  companies  is  being  kept  a  mystery,  it  is  believed  that  they  may 
Involve  the  consolidation  of  all  the  railroads  of  the  country. 

"The  companies  named  are:  The  Southern  Securities  Company,  the  Southwestern 
Securities  Company,  and  the  United  Securities  Company,  all  being  modeled  after  the 
Northern  Securities  Company. 

"It  is  said  that  all  of  the  incorporators  are  dummies,  and  that  they  are  merely 
holding  their  places  for  the  big  men  in  finance  and  railroads. 

"The  incorporators  frankly  admit  that  they  do  not  know  what  the  plans  of  the 
companies  are  or  what  may  be  the  scheme  of  the  whole  set  of  them. 

"Wall  street  is  said  to  be  heavy  with  rtimors  concerning  the  probabilities,  and 
the  belief  seems  to  exist  pretty  generally  that  the  following  will  be  the  result  of  the 
operations  of  the  men  behind  the  new  companies: 

"The  Southern  Securities  will  group  all  the  Southern  Railway,  the  Seaboard 
Air  Line,  the  Georgia  Central  and  the  Louisville  and  Nashville. 

"The  Southwestern  will  group  the  Missouri  Pacific,  the  Texas  and  Pacific.  St. 
Louis  and  Southwestern,  the  Wabash,  Missouri  Kansas  and  Texas,  Union  Pacific 
and  Southern  Pacific. 

"The  Mexican  Securities  will  group  the  Mexican  Central.  Mexican  National  and 
Mexican  International. 

"The  United  Securities  will  group  the  Illinois  Central,  Wisconsin  Central,  Iowa 
Central.  :\IinneaDolis  and  St.  Louis,  Chicago  and  East  Illinois,  and  Chicago  Termi- 
nal. 

"The  question  of  the  Minnesota  Securities  Company's  legality  is  now  at  issue  in 
the  United  States  courts.  It  is  believed  that  if  the  legality  of  the  company  is  estab- 
lished the  mysterious  import  of  the  other  companies  will  then  come  out. 


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DEBATES  OF  TIIE  CO]S"STITUTIONAL  CONVENTION  OE  VIRGINIA. 


It  is  believed  according  to  the  Eagle's  Wall  Street  man,  that  this  will  prove  to  be 
the  merging  of  all  the  railroads  of  the  different  sections  of  the  country  by  these  com- 
panies, and  that  the  merging  into  one  organization  of  ail  railroad  interests  will  be  a 
natural  and  'easy  step. 

How  idle,  then,  Mr.  Chairman  and  gentlemen  of  the  committee,  is  it  for  us  to  sit 
down  here  like  ostriches  with  our  heads  in  the  sand  and  talk  about  railroad  competi- 
tion. There  is  no  such  thing.  The  order  of  the  day  is  consolidation.  There  are  many 
good  financial  reasons  and  business  reasons  to  support  the  general  tendency  of  consolida- 
tion. I  am  not  prepared  to  say  that  this  consolidation  should  be  denounced.  I  do  not 
know  enough  about  it;  but  I  do  say  we  ought  to  put  ourselves  in  a  position  so  that  we 
cannot  be  imposed  upon;  so  that  v\^e  cannot  be  preyed  upon,  so  that  we  cannot  be 
destroyed  and  our  financial  independence  annihilated  by  any  such  consolidation  as  that 
which  is  now  staring  us  in  the  face. 

Mr.  Chairman,  I  should  like  to  ask,  when  the  gentlemen  who  differ  from  me  on  this 
question  come  to  reply,  that  they  state  to  the  Convention  what  stands  between  us  and 
absolute  economic  thraldom  except  a  reasonable  and  proper  governmental  control  of 
these  great  transportation  facilities,  these  pov/ers  which  they  have  gotten  from  the 
government,  which  in  their  aggregate  exceed  the  power  of  any  half  dozen  States  in 
the  Union  to-day?  What  is  there  to  check  them  from  charging  us  as  much  as  they 
choose,  except  one  thing,  the  inexorable  physical  law  which  limits  them  to  the  amount 
"the  traffic  can  bear"? 

What  is  to  prevent  this  master  overloading  his  horse  and  working  him  with  in- 
humanity, except  the  fear  that  he  will  kill  the  horse,  and  whenever  that  cornea  up,  and 
until  that  comes  up,  he  never  stops.  I  say  we  want  something  else  that  will  come  to 
our  relief  before  we  reach  the  extreme  point  of  physical  endurance. 

Mr.  Chairman,  I  have  nothing  against  the  railroads  or  the  railroad  people.  I  do 
not  think  railroad  men  are  any  worse  than  any  other  men.  I  suppose  they  are  human 
beings,  subject  to  the  like  impulses  and  like  weaknesses  as  other  men.  All  I  say  is, 
they  are  no  better  than  anybody  else,  and  that  they  will  do  what  anybody  else  will  do 
if  the  power  is  put  in  their  possession.  I  say  they  will  do  what  any  other  tyrant  will 
do  when  given  absolute  and  uncontrolled  power  to  tax  people  ad  libitum  without  any 
check  on  them.  What  check  is  there  upon  the  Czar  of  Russia  from  taxing  his  people, 
except  that  he  will  not  tax  them  to  the  point  of  extinction?  And  I  ask  you  what  check 
have  the  railroads,  except  that  they  will  not  tax  their  traffic  beyond  the  point  of 
existence?  Just  as  I  would  not  trust  any  man  with  absolute  and  despotic  power,  in  the 
hope  that  he  would  not  abuse  it,  so  I  would  not  trust  any  man  with  the  vast  authority 
that  the  control  of  the  railroads  gives,  him  without  some  check  upon  him. 

But  is  it  true,  Mr.  Chairman,  that  these  gentlemen  are  the  white-winged  innocents, 
that  some  of  their  friends  would  paint  them  tO'  be?  A  few  days  ago,  in  Januar^%  1902, 
the  Interstate  Commerce  Commission,  after  an  elaborate  investigation  of  the  stupendous 
wrong  alleged  to  have  been  done  by  railroads  in  violation  of  the  law,  made  a  report  in 
which  they  said  that  these  gentlemen  frankly  admitted,  when  gotten  into  a  corner,  that 
they  had  violated  the  laws.,  that  they  had  done  so  systematically,  persisently,  defiantly, 
and  that  they  had  deliberately  torn  up,  hurt  up  an  destroyed  all  the  oTidences  of  it, 
and  they  snapped  their  fingers  in  the  face  of  the  commission,  and  said,  "What  are  you 
going  to  do  about  it?"  This  is  the  comment  that  the  Interestate  Commerce  Commission 
makes  on  it: 

That  the  leading  traffic  officials  of  many  of  the  principal  railway  lines,  men  occupying 
high  positions  and  charged  with  the  most  important  duties,  should  deliberately  violate  the 
statute  law  of  the  land,  and  in  some  cases  agree  with  each  other  to  do  so;  that  it 
should  be  thought  by  them  necessary  to  destroy  vouchers  and  to  so  manipulate  book- 
keeping as  to  obliterate  evidence  of  the  transactions;  that  hundreds  of  thousands  of 
dollars  should  be  paid  in  unlawful  rebates  to  a  fevvr  great  packing  houses;  that  the 
business  of  railroad  tranportation,  the  most  important,  but  one,  in  the  country  to-day. 
paying  the  highest  salaries  and  holding  out  to  young  men  the  greatest  inducements, 


DEBATES  OF  THE  CONSTITUTIOXAL  COXTEXTIOX  OE  VIRGINIA. 


2147 


should  to  such  an  extent  be  conducted  in  open  disregard  of  law,  must  be  surprising 
and  offensive  to  all  right-minded  persons,.  Equally  startling,  at  least,  is  the  fact  that 
the  owners  of  these  packing  houses,  men  whose  names  are  known  throughout  the 
commercial  world,  should  seemingly  be  eager  to  augment  their  gains  with  the  enormous 
amounts  of  the  rebates  which  they  receive,  in  plain  defiance  of  a  Federal  statute, 
These  facts — 

Say  the  commission — 

Carry  their  own  comment,  and  nothing  said  by  us  can  add  to  their  significance. 
********** 

In  view  of  those  great  combinations  which  have  been  formed  and  are  now  forming, 
by  which  railway  competition,  which  upon  the  present  theorj"  of  this  law  is  greatly 
relied  upon  to  secure  just  and  reasonable  rates  and  facilities,  will  be  largely 
eliminated,  some  method  should  be  provided  by  which  the  Government  can  exercise 
in  fact — 

Listen  to  this,  gentlemen — 

In  view  of  those  great  combinations  which  have  been  formed  and  are  now  forming, 
by  which  railway  competition,  v/hich  upon  the  present  theory  of  this  law  is  greatly 
relied  upon  to  secure  just  and  reasonable  rates  and  facilities,  will  be  largely  eliminated, 
some  method  should  be  provided  by  which  the  Government  can  exercise  in  fact  that 
control  over  railway  rates  and  operations  which  courts  without  number  have  asserted 
that  it  possesses  and  which  many  persons  suppose  that  it  now  exerts.  All  this,  has 
been  said  in  previous  reports,  and  nothing  could  be  added  by  repetition  of  it  here. 
The  commission  believes  to-day,  as  it  has  in  the  past,  that  this  whole  law  should  be 
revised  upon  some  correct  theory  and  some  workable  basis. 

It  is  possible,  however,  that  the  same  causes  which  have  prevented  serious  con- 
sideration of  this  subject  in  the  past  may  continue  to  operate  in  the  future.  In  that 
event,  in  view  of  the  gross  violations  of  the  statute  herein  referred  to,  we  v>'ould  sug- 
gest that  if  it  is  not  possible  to  amend  this  law  in  its  more  essential  features,  it  ought 
at  least  to  be  possible  to  deal  v*^ith  those  coercive  features  of  the  act  which  are  intended 
to  prevent  practices  of  this  character. 

All  of  this  goes  to  show  one  thing,  gentlemen  of  the  committee,  not  only  that  the 
State  has  the  right  to  control  railroads  and  to  regulate  and  presicribe  their  rates,  but  that 
the  time  has  come  and  is  now  upon  us  when  it  is  essential  for  the  welfare  of  this  coun- 
try and  the  protection  of  our  people  that  that  right  should  be  effectively  administered; 
that  it  should  no  longer  exist  in  theory,  but,  as  the  commission  says,  should  be  put  in 
practice,  and  that  some  effective  methods  should  be  provided  to  afford  the  redress  which 
the  courts  have  always  said  exists,  in  theoiT- 

A  distinguished  gentleman,  Mr.  Baxter,  who  is  one  of  the  most  prominent  railroad 
lawyers  in  the  United  States,  a  specialist  on  this  subject,  and  who  was  brought  by 
the  representatives  of  the  railroad  company  to  address  your  committee  on  this  subject, 
a  learned  man,  a  man  who  was  there  as  an  advocate  representing  the  interests  of  his 
clients,  frankly  admitted  that  the  State  had  this  right,  that  no  respectable 
authority  to-day  denies  it,  and  my  distinguished  friend,  the  gentleman  from  Fauquier 
(Mr.  Hunton),  who,  I  regret  to  say,  differs  so  much  with  me  on  this  subject,  frankly 
concedes  the  same  thing  in  effect  in  his  report;  because  if  the  State  has  no  right  to 
regulate  them,  if  the  times  do  not  require  that  that  right  be  exercised,  why  would  he 
provide  a  method  which  he  claims  will  enable  the  State  to  regulate  it  and  to  exercise  it? 
The  report  of  the  minority  undertaking  to  establish  a  tribunal  for  this  purpose  is  an 
admission  that  v/e  have  the  right  to  regulate  them,  and  that  we  ought  to  regulate  them, 
and  the  only  difference  between  me  and  my  distinguished  friend  is  as  to  the  method  of 
regulating  them. 

Now,  Mr.  Chairman  and  gentlemen,  I  say  it  is  idle  for  us  to  prate  about  this  right, 
idle  for  us  to  admit  it,  idle  for  the  text  writers  to  lay  it  down  and  for  the  courts  to 
proclaim  it,  unless  there  is  some  efficient  and  some  effective  machinery  through  which 


2148 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 


the  right  can  be  enforced,  and  redress  can  be  given.  How  shall  we  do  it?  Through 
what  sort  of  instrumentality  shall  we  enforce  this?    Can  the  General  Assembly  do  it? 

Many  of  my  opponents  in  this  matter  will  tell  you  that  we  ought  to  leave  it  to  the 
General  Assembly.  I  ask  you,  now,  as  practical  men,  looking  at  this  as  a  practical 
question,  to  ask  yourselves  and  see  if  you  can  answer  in  your  own  minds,  to  your  own 
satisfaction,  how  in  the  nature  of  things  it  is  possible  for  any  body,  organized  as  a 
General  Assembly  must  be,  to  exercise  the  function  of  prescribing  the  rates  of  a  trans- 
portation company?  It  is  not  a  question  of  the  individual  capacity  of  the  members  of 
the  General  Assembly.  Concede  to  each  of  them  as  much  sense  as  the  combined 
wisdom  of  this  body;  suppose  the  General  Assembly  were  made  up  of  Isaac  Newtons; 
it  is  impossible,  I  submit,  for  140  men,  organized  into  two  separate  chambers,  meeting 
once  in  two  years,  to  make  the  calculationsi,  to  go  into  and  keep  themselves  in  touch 
with  the  facts  and  all  the  collateral  facts  necessary  for  the  fixing  of  rates,  and  to  change 
those. rates  from  time  to  time,  from  week  to  month,  as  the  case  may  justify  it.  It  is 
absolutely  impossible;  and  this  same  distinguished  gentleman,  Mr.  Baxter,  when  asked 
the  question  if  he  thought  it  was  possible  for  a  General  Assembly  or  any  body  organized 
as  a  General  Assembly  is  organized,  to  make  railroad  rates,  frankly  said  he  did  not 
think  it  was  possible. 

I  go  further,  and  I  ask  if  a  single  solitary  instance  can  be  mentioned  in  the  history 
of  the  United  States  where  a  General  Assembly  did  prescribe  railroad  rates.  I  chal- 
lenge the  production  of  a  single,  solitary  instance  where  it  was  ever  done. 

Gentlemen  of  the  committee,  the  most  that  can  be  done  for  them  in  that  line  is  for 
them  to  prescribe  maximum  rates,  and  not  the  actual  rates.  Think  of  the  number  of 
articles  that  can  be  transported;  think  of  the  number  of  routes  over  which  they  can  be 
transported  and  the  list  of  carriers,  making  a  great  book  like  this;  imagine  a  General 
Assembly  taking  up  and  discussing  and  passing  on  each  one  of  10,000  items.  They 
cannot  do  it.  They  never  did  do  it.  It  is  physically  impossible  for  that  number  of  men, 
organized  in  that  way,  to  do  it.  If  they  should  do  it  on  one  occasion,  no  rates  of  that 
sort  could  stand  for  two  years  without  any  change  in  them. 

They  can  fix  maximum  rates.  But,  gentlemen,  do  not  be  deluded  by  that  ignis 
fatuus.  The  fixing  of  maximum  rates  amount  to  nothing.  You  know  that  the  rates 
for  hauling  merchandise  vary  to  the  utmost  extent.  The  rate  on  coal  is  very  cheap. 
The  rates  on  dry-goods  and  some  kinds  of  live  stock  is  very  high.  When  you  fix  max- 
imum rates,  you  have  got  to  fix  the  rates  so  high  that  it  will  go^  over  the  top  of  the  head 
of  the  highest  one  of  them.'  and  how  far  does  that  prove  to  be  a  regulation  of  the  rate 
below?  Take  your  ov>^n  State  for  example.  What  has  our  General  Assembly  done — 
and  I  submit  that  our  General  Assembly  is  as  good  as  any  other  Legislature — I  say  that 
its  defects,  I  say  that  its  sins  of  omission,  are  due  to  the  organization  and  constitution 
of  the  body,  not  to  the  personnel  of  it.  I  concede  that  if  we,  ourselves,  were  in  their 
position  we  could  not  do  any  better  and  possibly  might  not  do  so  well,  in  fixing  rates, 
as  they  have  done.  The  only  thing  they  have  done  in  this  regard  is  to  say  that  no  rail- 
road shall  charge  more  than  eight  cents  per  ton  per  mile  on  freight  except  on  fertilizers, 
which  are  reduced  to  four  cents  per  ton  per  mile.  Now  mark  you  that  is  a  straight  rate, 
over  the  top  of  everything.    Vvhat  does  it  mean? 

Gentlemen,  these  are  dry  facts,  but  this  is  a  very  important  matter,  and  I  trust 
you  will  give  me  your  attention,  as  difficult  as  I  know  it  may  be  for  you  to  do  so. 

Eight  cents  per  ton  per  mile  is  the  rate  fixed  by  the  State  beyond  which  freight 
charges  shall  not  go;  when  the  manager  of  the  Norfolk  and  Western  Railroad  Com- 
pany admits  that  the  average  charge  for  freight  on  that  road  was  a  small  fraction  over 
one-half  of  one  cent  per  ton  per  mile.  The  General  Assembly  says,  in  effect,  "You 
shall  not  charge  more  than  sixteen  times  as  much  as  you  do  charge  for  transportation 
over  your  road."  So  far  as  the  protection  of  the  people  is  concerned,  you  might  as 
well  have  said:  You  shall  not  charge  more  than  eight  dollars  per  ton  per  one  hundred 
yards.    The  rate  is  so  high  that  it  does  no  good ;  and  yet  if  they  had  fixed  a  lower  rate. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIEGIXIA. 


21^9 


as  they  must  strike  over  the  tops  of  the  heads  of  the  verv  highest,  they  probably  would 
have  done  harm.  The  fixing  of  maximum  rates  by  the  Legislature  is  mere  fol-de-rol. 
It  is  nothing;  it  cannot  be  anything.  It  is  a  tub  for  the  whale  to  play  with.  Let  us 
look  that  in  the  face  and  recognize  it. 

In  speaking  on  this  subject  with  Mr.  Baxter,  to  whom  I  have  referred,  I  asked  him 
the  question,  whether  it  was  possible  for  any  body  organized  as  the  Legislature  is 
organized,  regardless  of  its  personnel — although  individually  each  man  In  it  might  have 
more  sense  than  the  entire  Constitutional  Convention — to  fix  railroad  rates.  This  dis- 
tinguished railroad  lawyer,  this  expert  in  these  matters,  replied:  "Xo,  sir;  it  could 
not."  ^Tiat  is  the  use  of  members  of  this  Convention  coming  here  and  telling  us  about 
the  General  Assembly  fixing  rates.  Go  over  in  3-our  minds  the  ''modus  operandi"  and 
see  how  it  could  be  done.  To  make  assurance  doubly  sure,  I  asked  him  again:  '"'Do 
you  think  140  men  could  enter  into  the  minute  calculations  necessary  for  such  a  task: 
would  not  the  very  bulk  and  size  of  such  a  body  as  the  General  Assembly  make  it 
impossible  to  do  such  work?"    INIr.  Baxter  said:    '1  agree  with  yoti  in  that." 

I  say,  therefore,  'Mv.  Chairman,  that  we  must  lay  aside  as  utterly  impracticable  and 
impossible  any  hope  of  the  General  Assembly  fixing  rates.  Let  us  not  content  ourselves 
with  fixing  maximum  rates  when,  for  the  reasons  I  have  given  3'ou,  those  maximum 
rates  amount  to  nothing.  "WTiere  is  there  man  who,  in  his  private  business,  would  object 
to  the  government  fixing  his  charges  if  the  government  said  to  him:  Be  it  enacted. 
that  you  shall  not  charge  Mr.  Einstein  for  your  clothes  more  than  sixteen  time  the 
price  you  do  charge  him.  He  says,  that  if  that  is  as  near  as  you  are  going  to  come  to 
him,  he  would  just  as  soon  you  should  fix  his  rates  as  not.  That  is,  in  effect,  what  the 
General  Assembly  says  to  the  railroads,  and  that  is  about  as  close  as  the  General  As- 
sembly can  safely  come  to  them,  in  fixing  maximtim  rates. 

Then  they  say:  Let  us  go  to  the  cotirts  and  have  the  courts  fix  the  rates.  I  think 
I  can  shov\-  to  you,  if  you  will  bear  with  me  patiently  that  it  is  just  as  impossible,  just 
as  hopeless,  and  just  as  impracticable  to  have  the  courts  fix  the  rates,  as  an  original 
proposition,  as  it  is  to  have  the  General  Assembly  fix  them. 

In  the  first  place,  as  was  held  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  Munn  vs.  Illinois,  194  V.  S..  the  fixing  of  rates  is  not  a  judicial  question.  It  is 
a  legislative  question.  The  court  is  no  more  able  by  reason  of  its  being  a  court  to  fix 
rates,  than  a  doctor  is.  A  man  may  be  ever  so  learned  as  a  lawyer  and  whatever  his 
individual  capacity  in  rate-fixing  may  be,  his  knowledge  as  a  lawyer  no  more  helps 
him  in  fixing  rates,  than  a  preacher  who  depended  upon  his  knowledge  of  theolog%- 
would  be  assisted  in  fixing  rates  by  that  knowledge.  It  is  not  a  question  of  law.  It 
is  a  practical  question;  it  is  a  business  question.  It  is  a  question  that  any  good  mer- 
chant, manufacturer,  banker,  or  shipper  of  any  sort  is  better  able  to  deal  with,  so  far  as 
the  experience  of  his  business  is  concerned,  than  a  lawyer  is.  \Miy,  then,  refer  it  to  the 
courts?  The  cost,  and  the  delay  of  judicial  procedure  would  alone  make  it  utterly 
impossible.  The  unyielding  character,  the  inelasticity,  the  stiffness,  the  formality  and 
the  technicality  of  legal  procedure,  would  render  it  utterly  impossible  to  do  it.  Take  an 
actual  case.  The  fixing  of  a  rate  depends  upon  the  consideration  of  a  large  number  of 
collateral  facts — what  rates  are  charged  on  other  roads  under  similar  conditions,  and 
what  rates  this  road  has  charged  for  the  same  services  before,  and  so  forth  and  so  on. 
Imagine  a  court  going  into  these  facts,  and  having  each  one  of  them  proved  by  strictly 
legal  evidence,  with  a  lawyer  sitting  there  and  cross-examining  and  objecting  to  ever^-- 
thing  in  the  nature  of  hearsay  evidence.  Five  years  would  not  suffice  to  get  up  the 
evidence  to  fix  one  rate  from  here  to  Petersburg.  It  would  be  practically  impossible 
to  estahlish  these  things  by  the  strict  legal  proof  required  in  judicial  proceedings.  In  the 
courts  there  must  be  a  controversy  with  the  railroad  on  one  side  and  the  shipper  on 
the  other,  and,  gentlemen  of  the  committee,  whenever  my  friends,  the  enemy,  come  into 
court  with  a  railroad  on  one  side  and  a  shipper  on  the  other,  I  cannot  but  remember  the 
old  nursery  rhyme:    "Won't  you  walk  into  my  parlor,  said  the  spider  to  the  fly?"  Gen- 


2150  DEBATES  OF  THE  COXSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

tlemen,  I  ask  you  what  show  in  the  world  a  private  individual  shipper  will  have  in  any 
controversy  with  a  railroad  company  over  rates?  He  can  make  up  but  one  case,  on 
one  rate;  and,  mark  you,  there  are  ten  thousand  rates  to  be  regulated  and  adjusted, 
and  tens  of  thousands^  of  people  to  whom  the  rate  applies.  One  man  ships  a  load  of 
tobacco  from  Danville  to  Richmond,  and  he  is  overcharged  $25  a  car.  In  order  to 
recover  the  $25,  that  one  man  has  to  go  into  court,  summon  the  railroad  company,  get 
counsel  and  go  into  an  examination  of  all  the  intricate  and  endless  collateral  facts  which 
go  to  make  up  the  question  as  to  the  unreasonablenesiS  of  that  rate,  with  the  burden 
of  proof  upon  him  to  establish  it.  I  say  that  it  is  impossible  for  him  to  do  it.  And  if 
he  could  do  it,  after  he  has  litigated  for  days  and  weeks  and  months  and  years,  if  he 
is  successful,  he  recovers  liis  $25;  in  the  meantime,  this  extra  charge  of  $25  has  been 
collected  by  the  railroad  company  from  ten  thousand  other  men  pending  the  litigation. 
When  that  $25  is  recovered,  they  can  turn  around  and  charge  him  $25  excess  rate  on 
each  car  again,  and  he  will  have  the  litigation  all  to  go  over  again.  In  order  to  have 
the  courts  fix  the  rates,  you  will  have  to  have  a  separate  suit,  for  each  separate  rate, 
over  each  separate  road,  on  each  separate  article  that  can  be  transported  over  each 
separate  route.  In  order  to  fix  the  rate  to  Newport  News  you  would  have  to  go  over 
the  entire  list  of  merchandise  and  fix  the  rate  from  here  to  Fair  Oaks  and  from  there 
t6  Elko  and  from  there  on  to  the  various  different  stations  ad  infinitum.  A  hundred 
thousand  suits  would  not  suffice  to  fix  it. 

If  I  am  asked  for  any  other  argument  than  this,  I  appeal  to  the  notorious  fact  that 
the  courts  have  never,  anywhere  that  I  know  of  or  ever  heard  of,  afforded  one  single 
man  adequate  redress  in  this  particular.  The  great  majority  of  the  people  in  this 
country  are  poor  people.  They  are  small  dealers.  In  the  aggregate  they  amount  to 
the  great  body  of  the  Commonwealth;  but  how  can  these  individuals,  these  pigmies, 
enter  into  a  contest  with  giants.  There  can  be  only  one  conclusion,  and  that  a  foregone 
conclusion.  The  city  of  Danville,  one  of  the  richest  and  most  flourishing  cities  in  this 
Commonwealth,  with  all  the  power  and  force  of  money  back  of  it,  has,  I  understand, 
been  in  litigation  with  the  railroads  over  rates  there  for  over  three  years  and  have 
never  yet  brought  it  to  a  conclusion. 

But,  gentlemen,  that  is  not  all.  It  is  not  even  proposed  by  the  report  of  the 
minority  of  this  committee  that  the  court  shall  fix  the  rate.  I  ask  your  particular  at- 
tention to  this.  It  is  proposed  merely  that  they  can  condemn  a  rate,  but  not  fix  a  new 
one  in  place  of  it.  For  ten  years  after  the  Interstate  Commerce  Act  was  passed,  that 
commission,  construing  the  act  as  its  distinguished  president,  Judge  Cooley,  thought 
was  proper,  and  as  was  acquiesced  in  for  ten  years  hy  the  railroads  without  any  opposi- 
tion, considered  tliat  it  was  their  right,  when  they  condemned  one  rate,  to  substitute 
another  for  it.  I  think  my  distinguished  friend,  Judge  Baxter,  is  entitled  to  the  credit 
for  having  invented  the  way  to  pull  the  sting  out  of  that  bee.  In  a  case  which  went 
to  the  Supreme  Court  of  the  United  States,  in  a  decision  rendered  by  Mr.  Justice 
Brewer,  it  was  held  tha.t  inasmuch  as  the  word  "presicribed"  had  not  been  used  in  the 
Interstate  Commerce  Act,  all  that  the  commission  could  do  is  what  the  report  of  ther 
minority  committee  tells  you  is  all  that  your  court  would  be  allowed  to  do,  that  is 
to  condemn  the  rate  and  say  that  3'ou  must  not  charge  that  rate;  but  you  have  not  the 
power  to  fix  any  other. 

Mr.  Hunton:  Do  I  understand  the  gentleman  from  Augusta  to  contend  that  such 
is  the  intention  of  the  article  contained  in  the  minority  report  of  this  committee? 

Mr.  Braxton:  I  so  understand  it.  If  I  misunderstand  it,  I  hope  the  gentleman  from 
Fauquier  will  correct  me. 

Mr.  Hunton:    You  most  assuredly  do  misunderstand  it. 

Mr.  Braxton:  I  certainly  do  not  wish,  intentionally,  to  do  any  injustice  to  the  report 
of  the  minority.  If  my  friend  thinks  I  am  mistaken,  I  thank  him  for  calling  my  atten- 
tion to  it.  I  will,  however,  read  that  portion  of  the  report  v/hich  led  me  to  believe  it 
was  succeptible  of  the  construction  I  have  put  upon  it. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


2151 


Section  8  of  the  minority  report  after  prescribing  what  the  procedure  shall  be 
when  the  railroad  charges  too  high  a  rate,  after  providing  that  there  shall  be  a  com- 
plaint to  the  commission,  that  then  the  commission  shall  complain  to  the  railroad,  and 
then  the  commission  shall  report  it  to  the  Attorney  General,  and,  after  proper  pro- 
ceedings, it  shall  be  brought  into  court,  says,  on  page  14: 

"The  said  court  or  judge,  if  the  decision  is  in  favor  of  the  Commonwealth,  shall, 
by  a  mandatory  or  restraining  order,  prevent  the  common  carrier  or  person  comxplained 
of  from  further  continuing  to  violate  the  law,  and  the  costs  thereof  shall  be- paid  by  the 
common  carrier  or  person  complained  of." 

The  point  I  make  is  that,  under  that  provision,  all  that  the  court  could  say  to  the 
common  carrier  would  be:  '"You  must  stop  charging  the  rate  you  are  now  charging, 
which  is  a  wrong  rate."- 

Mr.  Hunton:  I  will  state  that  our  own  Supreme  Court  has  said  exactly  the  reverse, 
not  as  to  rates  but  as  to  connections. 

Mr.  Braxton:  I  do  not  think  the  two  cases  are  parallel.  In  the  case  to  which  I 
have  before  referred,  decided  by  Justice  Brewer,  he  discusses  the  matter  at  length.  I 
think  that  the  language  of  the  Interstate  Commerce  Act,  by  inference,  was  just  as 
strong,  if  not  stronger,  than  the  language  of  this  section  of  the  report.  The  court  said, 
that  because  they  did  not  use  the  word  "prescribe,"  which  was  the  proper  and  natural 
word  to  use,  all  that  the  commission  could  do  was  to  condemn  the  rate.  The  provision 
in  this  section  is  that  they  shall  be  restrained  from  "continuing  to  violate  the  law;" 
that  is,  to  prevent  the  continuance  of  that  rate. 

What  w^ill  be  the  result?  Let  us  take  an  instance  of  this  sort.  Here  is,  a  specific 
rate  that,  we  will  ssiy,  ought  to  be  tvv^enty  cents.  The  railroad  is  charging  fifty  cents. 
Some  poor  wight  starts  up  a  fight  against  the  railroad  on  this  fifty-cent  rate,  and  after 
the  court  has  heard  the  case  and  determined  that  the  fifty-cent  rate  is  wrong  all  the 
court  can  do  is  to  say:  "You  must  stop  charging  this  fifty-cent  rate,"'  thereupon  they 
will  charge  a  fortj'-nine  cent  rate,  and  you  have  got  to  go  back  to  the  beginning  and 
go  over  the  whole  matter  again;  and  so  they  can  come  down,  dying,  like  the  squirrel, 
from  limb  to  limb,  falling  a  half  a  cent  at  time.  What  practical  good  v/ill  such  a 
provision  do  you? 

I  tell  you,  Mr.  Chairman  and  gentlemen  of  this  committee,  that  if  there  is  any  error 
we  can  commit  in  connection  with  tliis  matter  it  would  be  the  error  of  saying,  as  this 
minority  report  will  have  you  ss.y,  that  the  right  to  regulate,  in  any  way,  these  rates 
shall  be  left  only  to  the  courts.  I  point  you  to  the  distinguished  failure  of  the  Interstate 
Commerce  Commission  to-day.  I  point  you  to  the  distinguished  failure  of  the  present 
Virginia  Railroad  Commission  of  to-day,  whose  commissioner  has  again  and  again 
pointed  out  to  the  General  Assembly  how  perfectly  impotent  he  is  with  the  means  under 
his  control.  The  effect  of  this  minority  report  is  to  say  to  you:  Here  are  two  systems, 
the  interstate  commerce  system  and  our  own  system,  both  of  which  have  been  tried  for 
years,  both  of  which  have  proven  to  be  absolute  failures,  so  much  so  that  the  dis- 
tinguished gentlemen,  honorable  and  honest  as  they  are,  who  undertake  to  adminster 
them,  have  come  forward  and  told  you  that  if  you  do  not  amend  them,  you  may  as  well 
abolish  their  offices.  If  there  be  any  system  known  to  man,  if  there  be  any  system 
v.diicli  can  be  devised  as  to  the  inefficiency  of  which  there  is  no  doubt,  it  is  the  inter- 
state commerce  system  of  to-day  and  the  railroad  commission  system  of  Virginia  as 
it  exists  to-day.  You  may  have  some  question  about  others.  There  can  be  no  ques- 
tion about  these.  They  have  been  weighed  in  the  balances  and  have  been  found 
absolutely  wanting  and  inefficient.  And  yet  the  report  of  the  minority  of  this  committee 
taking  up  those  two  systems,  inefficient  and  absolutely  worthless  as  they  are,  would  em- 
body them  in  your  Constitution  and  write  over  their  heads  "Esto  perpetua."  As  long 
as  they  are  not  in  the  Constitution,  we  at  least  have  the  faint  hope  of  having  them 
remedied  by  the  General  Assembly.  To  put  these  two  defective  systems  into  your  Con- 
stitution, ineffective  and  absolutely  worthless  as  they  are,  is  to  say:    "We  now  place 


21  b'^ 


DEBATES  OE  THE  COJsTSTITUTIONAL  CONVENTIOi^  OE  VIRGINIA. 


them  liere  in  such  a  way  as  to  deprive  you  even  of  the  faint  hope  of  a  possible  remedy 
for  any  of  their  main  and  essential  defects,  to-wit:  by  leaving  it  to  the  courts  to  fix  the 
rate,  a  thing  which  the  courts  have  said  they  cannot  do  and  are  incapable  of  doing." 

As  was  pointed  out  in  the  article  I  read  awhile  ago  to  this  committee,  in  many 
cases  the  burden  and  brunt  of  these  railroad  rules  does  not  fall  on  the  shipper.  They 
are  passed  over  his  head  to  the  consumer.  He  is  the  "Jones  that  pays  the  freight," 
just  as  our  tariff  duties  to-day  are  not  paid  by  the  importer,  but  by  the  consumer.  This 
is  nothing  more  nor  less  than  an  internal  tariff  upon  commerce  by  the  railroads.  It  falls 
upon  the  consumer.  In  many  cases  there  is  no  desire  or  incentive  on  the  part  of  the 
shipper  to  bring  suit  to  recover  the  excess  charged,  because  he  passes  that  on  to  the 
consumer.  In  shipping  produce  from  one  point  to  another  if  the  railroad  rate  is  exhorb- 
itant,  I  simply  tack  it  onto  the  price  and  charge  so  much  more  for  the  product.  The 
man  who  ultimately  consumes  it  bears  the  brunt  of  the  excess  charge.  He  has  got  no 
claim  against  the  railroad  company.  He  has  no  contract  with  them.  He  would  have 
no  standing  in  court.  How,  then,  is  it  possible  for  us  to  get  any  relief,  or  to  exercise 
any  check  or  control  over  freight  rates,  from  the  courts,  as  the  orignal  fixers  of  it? 

Mr.  Chairman  and  gentlemen  of  the  committee,  the  experience  of  this  entire  country 
has  demonstrated  that  this  right  of  the  State,  this  conceded  right  of  the  State  to 
regulate  railroads  and  fix  their  rates  is  but  "the  sounding  of  brass  and  tinkling  of 
cymbals."  It  is  nothing,  unless  some  method  of  enforcing  that  right  other  than  through 
the  General  Assembly  and  the  courts  can  be  devised.  In  not  a  single  solitary  instance 
that  I  know  of  has  a  legislature  or  a  court  been  able  to  show  itself  capable  of  enforcing 
that  right. 

It  was  for  that  reason  that  a  new  tribunal,  particularly  constituted  for  this  purpose 
and  this  work  has  been  devised,  and  through  the  course  of  years  has,  gradually  developed 
Into  a  state  of  comparative  perfection  for  this  purpose.  It  is  a  tribunal  which  combines 
some  of  the  powers  of  a  court  and  some  of  the  powers  of  a  legislature,  just  as  the  Senate 
has  executive,  judicial  and  legislative  functions  to  perform. 

These  railroad  commissions  are  the  only  things  which  have  ever  yet  proven  even 
approximately  capable  of  fiting  railroad  rates  and  of  controlling  railroads.  The  first 
one  of  them,  so  far  as  I  know,  was  established  in  the  State  of  Massachusetts.  That  was 
in  the  early  and  experimental  days,  when  the  public  was  groping  around,  recognizing 
that  there  must  be  something  done;  that  there  must  be  some  other  method,  some  other 
machinery  for  enforcing  this  right.  They  reached  out  and  in  a  spirit  of  great  conserva- 
tism they  established  their  commission,  which  is  known  generally  as  an  advisory  com- 
mission. 

It  did  not  have  power  to  do  anything  except  to  investigate,  to  report,  to  recommend, 
to  advise,  to  remonstrate,  to  beseech.  It  was  purely  persuasive,  and  absolutely  without 
authoritj^ 

Gentlemen,  every  railroad  man  I  ever  talked  to  about  commissions  said  the  best 
commission  there  ever  was  in  the  world  was  the  Massachusetts  Commission — because 
it  did  not  have  authority  to  do  anything.  It  so^  happens  that  that  commission  was  com- 
posed of  men  of  great  distinction,  of  national  renown,  headed  by  Mr.  Charles  Francis 
Adams.  Owing  to  the  very  remarkable  and  unique  personnel  of  that  commisision,  owing 
to  the  peculiar  and  unique  situation  of  business  and  railroad  affairs  there,  that  com- 
mission did  do  a  great  deal  of  good,  and  proved  in  the  State  of  Massachusetts  very 
satisfactory,  because  the  railroad  companies,  for  reasons  satisfactory  to  themselves, 
saw  fit  to  co-operate  with  them,  to  accept  their  recommendations  in  regard  to  the  things 
they  advised  them  to  do. 

On  the  strength  of  that,  other  commissions,  known  as  advisory  commissions,  have 
been  established  in  a  few  other  Statesi,  and  as  far  as  your  committee  has  been  able  to 
ascertain,  without  a  single,  solitary  exception  they  have  proven  egregious  and  absolute 
failures  so  far  as  accomplishing  anything  on  earth  is  concerned. 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2153 


Mr.  Thorn:    I  understand  your  investigations  have  led  you  to  believe  that  the  com- 
mission in  Massachusetts  has  been  found  adequate  and  satisfactory^  in  that  State. 
Mr.  Braxton:    In  that  State;  yes  sir. 

Mr.  Kendall:  I  wish  to  ask  the  gentleman  from  Staunton  if  it  was  not  conceded 
by  the  railroad  commissioner  of  Massachusetts  before  the  Industrial  Commission  that 
the  efficiency  of  that  commission  in  the  matter  of  fixing  rates  was  largely  due  also  to  its 
power  over  capitalization  in  that  State? 

Mr.  Braxton:  I  think  that  is  true  too  sir;  because  in  that  State  they  have  powers 
over  capitalization  vrhich  we  do  not  seek  to  give  them  here,  and  I  do  not  think  are 
generally  given  them  in  other  States. 

But  I  leave  it  to  the  commion  se'nse  of  this  committee  if  it  is  wise  for  us,  coming 
here  as  we  do  to  represent  the  people  and  to  provide  means  of  government,  to  spend 
weeks  and  months  here  as  we  have  done,  and  in  response  to  the  almost  universal 
demand  throughout  the  State  that  some  efficient  remedy  be  provided,  that  the  mountain 
should  bring  forth  a  mouse  in  the  shape  of  a  commission  that  can  do  nothing,  and 
which,  after  elaborate  investigation  of  the  railroad  companies,  VN'hen  it  finds  that  they 
have  done  w^hat  it  has  been  proven  they  have  done  would  simply  say  to  them.  "Are  you 
not  ashamed  of  yourselves?" 

I  say  it  is  derogatory  to  the  dignity  of  the  Commonvv^ealth,  it  is  an  anomaly  in 
government,  that  a  commission  should  be  established  to  inquire  into  the  wrong  doing  of 
any  person  or  corporation  subject  to  that  government,  and  when  it  finds  out  that  they 
have  violated  the  law,  can  simply  bring  them  here,  like  a  mother  wo  aid  her  little  boy, 
and  read  the  bible  to  them,  and  reprove  them.  Government  of  itself  implies  force  and 
power.  It  implies  the  ability  to  enforce  its^  requirements;  and  when  you  do  not  have  if, 
3'our  government  is  worse  than  no  government  at  ail;  and  the  facts,  I  submit,  if  you 
investigate  them,  will  bring  you  to  the  conclusion  that  in  not  a  single  state  of  the 
Union  has  the  Massachusetts  Commission  ever  amounted  to  a  row  of  pins.  You  will 
find  the  railroads  with  one  accord  saying:  "Give  us  the  Massachusetts  Commission," 
because  they  know  when  they  get  the  Massachusetts  Commission,  they  have  nothing  but 
a  naked  shadow. 

About  1870  to  1872  the  State  of  Iowa  established  the  first  commission  v/ith  power, 
a  commission  which  had  the  right  which  every  other  department  of  government  has, 
to  inquire  into  wrongs,  to  correct  those  wrongs,  and  to  enforce  its  judgments.  A  great 
hue  and  cry  went  up  and  the  same  raw  head  and  bloody  bones  that  have  been  shaken 
at  us  here  in  this  State  and  are  now  paraded  up  and  down,  that  they  were  going  to  stop 
railroad  building,  that  they  were  going  to  drive  out  capital,  that  they  were  going  to 
bring  chaos  and  old  night  upon  us,  was  paraded  out  there  and  did  service  there  as  it 
has  done  in  every  State  that  has  attempted  it  from  that  time  to  this;  and  yet,  gentlemen, 
none  of  those  predictions  came  true.  Nineteen  States  of  this  Union  to-day  have  within 
their  borders  commissions  with  powers  to  fix  rates  and  to  regulate  railroads;  not  advisory 
commissions,  but  commissions  of  the  same  general  character  that  we  propose  to  give 
you  here. 

A  letter  from  the  Interstate  Commerce  Commission  gives  me  the  following  infor- 
mation: 

There  are  twenty-nine  States  in  the  Union  that  have  railroad  commissions  of  some 
sort.  The  following  State  commissions  have  only  advisory  powers  in  regard  to  rates: 
Maine,  Massachusetts,  New  York,  Rhode  Island  and  Vermont,  those  old  Ea-stem  States, 
where  conditions  are  essentially  different  from  what  they  are  here.  There  are  five  of 
them.  The  following  State  commissions  or  commissioners  have  full  power  in  regard  to 
rates:  Connecticut,  Michigan,  Ohio,  Virginia  and  Wisconsin.  The  following  nineteen 
States  have  commissions  with  powers  to  prescribe  rates:  Alabama,  Arkansas.  Cali- 
fornia, Florida,  Georgia,  Illinois,  Iowa,  Kentucky,  Louisiana,  Minnesota,  Missouri,  Mis- 
sissippi, New  Hampshire,  North  Carolina,  North  Dakota,  South  Carolina,  South  Dakota, 
Tennessee  and  Texas. 
136— Const.  Deb. 


21U 


DEBATES  OF  THE  COXSTTTUTTOXAL  COXVEXTIOX  OF  YIRGIXIA. 


This  is  no  new  experiment,  Mr.  Chairman. 

Mr.  Hunton:    How  many  States  have  such  provisions  in  their  Constitutions? 
Mr.  Braxton:    Tw^o  of  them,  Kentucky  and  California. 

Mr.  Chairman  and  gentlemen  of  the  Committee,  one  of  the  things  which  will  be 
held  up  to  terrorize  and  alarm  the  committee — I  do  not  mean  that  in  any  improper 
sense;  I  have  no  doubt  the  gentlem,en  who  use  that  argument  believe  it  themselves, 
but  I  think  they  are  mistaken  in  it — but  one  of  the  dangers  which  it  is  thought  by 
some  of  our  worthy  and  distinguished  friends  encompass  this  thing,  is  that  it  will  check 
the  building  of  railroads. 

Now  gentlemen  of  the  Committee,  I  leave  it  to  you,  if  the  building  of  railroads,  or 
the  want  of  the  building  of  railroads,  depends  upon  anything  in  the  world  but  two  con- 
ditions, the  one  a  geographical  condition,  the  other  a  trade  condition.  Did  you  ever 
hear  of  a  railroad  built  because  of  friendly  legislation  that  would  not  have  been  built 
otherwise?  Did  you  ever  hear  of  a  railroad  that  was  not  built  because  of  adverse  legis- 
lation that  would  have  been  built  otherwise?  Go  over  the  country,  think  of  it  yourself, 
and  you  will  see  that  geographical  conditions  and  trade  conditions  are  the  sole  and  only 
causes  for  the  building  or  the  non-building  of  railroads. Everything  the  railroad  can  get 
out  of  the  State  in  the  shape  of  unreasonable  concessions,  just  like  the  subscriptions 
they  get  from  the  counties,  is  just  that  much  that  they  have  humbugged  silly  men  out 
of.  They  would  have  gone  there  anyhow,  or  they  would  not  have  gone  there  anyhow. 
I  do  not  say  we  should  enact  a  single,  solitary  thing  in  our  constitution  that  is  unjust, 
unreasonable  or  unwise;  but  I  say  that  in  the  considerationsi  which  actuate  us  do  not  let 
us  think  that  reasonable  and  proper  legislation  will  deter  the  building  of  railroads,  be- 
cause the  building  of  railroads  does  not  depend  on  legislation.  I  feay  that,  within  the 
range  of  any  ordinary  reason,  there  is  no  legislation  I  know  of  that  will  do  so ;  and  I  will 
show  you  figures  in  a  moment,  that  in  those  very  States  where  it  is  said  anti-railroad 
legislation  is  the  most  violent,  there  has  been  built  the  greatest  mileage  of  railroads  in 
recent  years. 

I  think  the  railroads  considering  their  size  and  their  power,  are  very  scary  people. 
When  the  poor,  little  innocuous  Interstate  Commerce  Commission  was  proposed,  they 
fought  it  for  eleven  years,  and  swore  it  would  break  up  railroad  building  in  the  United 
States.  Eleven  years  elapsed  from  the  time  the  Reagan  bill  was  introduced  until  it 
finally  got  into  the  state  in  which  it  is  to-day  as  legislation.  It  has  done  no  good,  but 
if  it  has  hurt  anybody  it  certainly  is  not  the  railroads  that  have  been  hurt  by  it. 

Wben  we  proposed  to  put  the  employers'  liability  bill  upon  the  railroads,  they 
besieged  High  Heaven  with  their  protests  that  it  would  absolutely  ruin  them  and  abso- 
lutely destroy  them.    Many  of  those  gentlemen  now  think  it  is  not  so  bad,  after  all. 

A  few  years  ago,  when  the  question  of  taxation  was  up,  it  is  said  that  prominent 
railroad  officials  came  here  and  said:  "Of  all  methods  of  taxation,  in  the  name  of  jus- 
tice do  not  impose  upon  us  any  taxation  upon  our  gross  income.  It  is  the  worst,  the 
most  unjust,  the  most  unfair,  the  most  absolutely  destructive  thing,  that  ever  was  in 
the  w^orld;"  and  if  I  understood  their  position  correctly,  men  representing  the  sarae 
interests,  in  a  great  address  to  the  Taxation  Committee  of  this  body  came  forward  and 
recommended  substantially  that  that  very  method  of  taxation  be  adopted  as  a  fair  and 
just  and  equitable  one  under  all  the  circumstances. 

I  say  this  to  show  that  they  are  not  infallible  in  their  predictions  as  to  the  effect 
of  these  m.easures,  any  more  than  any  one  else.  I  say  that  to  tell  you  you  must  not 
allow  yourselves  to  be  scared  away  merely  by  these  predictions  of  destructiveness  to 
capital  and  interest,  unless  they  can  give  you  reasons  which  appeal  to  your  own  reason 
to  support  it.  The  miere  naked  generalities  that  they  deal  in  do  not  pan  out;  and 
giving  those  gentlemen  credit  for  believing  all  they  say  at  the  different  times,  I  say 
they  are  mistaken.    They  are  too  timorous,  too  sicared. 

Now  as  to  the  effect  on  the  general  prosperity  and  on  the  building  of  railroads. 
One  of  the  most  effective  commissions  in  this  country  is  the  railroad  commission  of 


DEBATE?  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2155 


Georgia;  and  Tvlien  the  State  of  Texas  was  tliinking  of  establishing  a  similar  commission 
with  power  some  eight  or  ten  years  ago,  I  well  remember  seeing  a  letter  from  Mr.  C. 
P.  Huntington,  the  president  of  the  Southern  Pacific  Railroad,  in  which  he  told  them 
if  they  did  establish  such  a  commission,  he  would  never  invest  another  cent  in  the 
State,  and  he  predicted  there  would  never  be  another  mile  of  railnad  built  in  that  State. 
Yet  they  did  adopt  it,  and  they  adopted  what  at  that  time  was  the  most  effective  and 
the  most  drastic  one  in  the  L'nited  States.  I  will  give  you  statistics  to  show  you  that 
last  year,  under  our  present  ineifrcient  Railroad  Commission  Bill,  where  we  had  about 
twenty  miles  of  road  built,  the  State  of  texas  had  581  miles,  more  than  any  other  State 
In  the  South,  and  almost  more  than  any  other  State  in  the  Union, 

Those  people  down  there  were  alarmed  by  these  Cassandra-like  predictions,  and 
they  wrote  to  the  chairman  of  the  Georgia  railroad  commission  to  find  out  how  the 
actual  working  of  that  commission,  which  had  been  in  existence  about  eleven  years, 
had  acted;  and  if  the  committee  will  bear  with  me,  I  will  read  you  the  reply  of  the 
chairman  of  the  railroad  commission; 

JrxE  IS,  1S90. 

Kon.  T.  .J.  Browx,  Sherman,  Texas. 

Dear  Sir — In  reply  to  yours  of  the  3rd  Instant,  asking  to  be  informed  in  reference  to 
the  workings,  effects,  influence,  etc.,  etc.,  of  the  railroad  commission  in  this  State,  I 
give  you  the  following  st-atement  of  facts,  without  detail  or  elaboration: 

The  railroad  commission  of  this  State  was  organized  October  15,  1S79.  Its  annual 
cost  to  the  State  is  S10,00<"';  S2,500  of  this  sum  being  appropriated  to^  each  of  three 
commissioners,  SI, 500  to  a  secretary,  $1,000  to  advertising,  publishing  and  office  ex- 
penses, 

A  very  large  reduction  in  the  charges  made  by  railroads  for  freight  and  passengers 
has  been  made  since  the  organization  of  the  commission  in  this  State.  To  show  this 
reduction  I  state  that  in  18-79  the  charge  made  for  the  transport ati on  of  passengers 
was  five  cents  per  mile,  whilst  the  rate  now  charged  is  three  cents  per  mile,  and  to 
show  it  in  freights  I  submit  the  following  table  of  rates  in  1879  and  in  1S90,  taking  the 
Savannah  division  of  the  Central  Railroad  as  an  example: 

Rate  charged  by  the  Central  Railroad  Company  per  100  pounds: 
Articles.  10  Miles.    50  Miles.  100  Miles.  140  Miles.  200  Miles.  250  Miles. 

Bacon    Su.20  SO. 22  S0.25  SO. 28  SO.-iO  S0.45 

Flour    0.20  0.22  •  0.25  0.28  0.40  0.45 

Grain   0.15  0.18  0.22  0.2:3  0.35  0.40 

Cotton    0.25  0.30  0.40  0.40  0.55  0.65 

Rate  allowed  by  the  Railroad  Commission  per  100  pounds: 

Articles.                    10  Miles.    50  Miles.  100  Miles.  140  ^liles.  200  Miles.  250  Miles. 

Bacon                                 $0.08          S0.13           $0.18          $0.22          S0.26  SO. 30 

Flour                                    0.06            0.10            0.15            0.19            0.23  0.25 

Grain                                   0.05            0.09            0.14            0.18            0.20  0.22 

Cotton                                  0.10            0.19            0.25            0.29            0.35  0.40 

This  immense  reduction  in  charges  for  freight  and  passengers  has  been  accom- 
plished without  injury  to  the  railroads.  They  have  prospered,  whilst  the  people  have 
been  benefited. 

The  market  value  of  the  stock  of  our  most  important  railroads  has  been  steadily 
increased. 

This  is  shown  by  the  following  comparative  statement  of  the  prices  at  which  the 
stocks  of  the  Central  Railroad  and  of  the  Georgia  Railroad  and  Banking  Company,  the 
two  most  extensive  railroad  systems  in  this  State  in  1879,  were  selling  in  1579,  and  are 
selling  now: 

Selling  at       Selling  at 
in  1879.  in  1890. 

Georgia  R.  R.  stock   78  201 

Central  R.  R.  stock   79  121 


Xot  ouly  have  the  charges  of  railroads  been  reduced,  and  the  value  of  their  property 
enhanced;  but  there  has  been  an  immense  increase  in  their  mileage  since  1879.  The 


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DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


records  of  this  office  show  that  for  the  five  years  immediately  preceding  the  establish- 
ment of  the  commission,  in  1879,  there  were  built  in  this  State  less  than  100  miles  of 
railroad,  showing  an  annual  average  of  about  20  miles,  and  since  1879  to  the  present 
time  there  have  been  built  in  Georgia  2,000  miles  of  railroad,  making  an  average  of  200 
miles  per  annum. 

The  sentiment  of  the  people  of  Georgia  towards  a  railroad  commission  can  be  deter- 
mined by  the  following  facts :  All  candidates!  for  the  office  of  Governor  in  the  past  eight 
years;  the  members  of  the  present  Legislature,  without  a  known  exception;  the  present 
candidates  for  Governor;  the  candidates  for  Congress  and  for  the  Legislature  at  this 
time,  who  have  been  announced,  have  been,  and  are,  in  favor  of  a  railroad  Commission; 
and  that  "many  organizations  of  the  alliance  favor  and  increase  of  the  powers  of  the 
existing  commission. 

The  establishment  of  a  railroad  commission  with  the  proper  powers  to  make  joint 
rates,  for  all  connecting  roads  in  your  State,  would  certainly  result,  in  my  judgment, 
in  the  building  of  many  roads  from  trunk  lines  into  sections  that  otherwise  will  never 
have  the  benefit  of  a  railroad.  This  would  follow,  because  the  railroad  commission,  by 
the  making  and  enforcing  of  a  joint  rate  over  the  two  roads  (the  new  and  the  trunk 
line),  to  the  commercial  centers  of  your  State,  would  be  a  guarantee  against  the  exercise 
of  unfriendly  hindrances,  and  the  establishment  of  such  arbitarary  rates  by  the  trunk 
lines  as  to  head  off  and  crush  out  the  new  road  and  thereby  making  its  construction 
impracticable. 

With  such  a  joint  rate,  however,  the  new  road  would  be  able  to  reach  your  commer- 
cial cities  with  their  shipments  over  the  trunk  line  upon  such  just  and  reasonable  teiTQs 
as  to  insure  their  construction  and  make  them  pajdng  roads.  In  the  absence  of  such 
a  regulation,  the  new  roads  would  be  forced  to  build  long  and  expensive  through  lines 
to  reach  the  commercial  thoroughfares,  at  a  cost  so  great,  in  many  instances,  as  to 
entirely  defeat  their  construction.  Without  such  power  vested  somewhere  to  overcome 
the  arbitrary  rule  of  trunk  lines,  they  may  entirely  prevent,  by  the  means  above  alluded 
to,  the  building  of  roads  in  large  sections  of  your  country,  and  absolutely  lock  them  up 
against  all  railroad  facilities  except  as  furnished  by  themselves  upon  their  ov.'n  terms. 
With  such  a  regulation,  however,  and  the  enforcement  of  such  a  rate,  all  sections  of 
your  State  that  are  able  to  build  a  short  road  and  connect  it  with  any  other  road  can 
do  so  with  the  assurance  given  by  the  authority  lodged  in  a  commisision  of  being  justly 
and  fairly  dealt  with,  which  would,  as  I  have  said,  insure  the  building  of  railroads  into 
sections  that  are  now  without  them. 

One  other  reason,  and  probably  the  strongest  one  that  can  be  given  showing  the 
necessity  of  a  railroad  commission,  grows  out  of  the  fact  that  the  stocks  of  railroads  are 
now  held  largely  for  speculation,  and  not  as  an  investment.  If  they  were  held  as  an. 
investment,  it  would  be  to  the  interest  of  those  holding  them  to  give  to  the  country  such 
a  service,  at  such  rates  as  would  add  to  the  wealth  and  population  of  the  country,  which 
would,  in  return,  remunerate  the  roads  by  the  increase  of  travel  and  larger  tonnage, 
as  the  natural  results  of  increased  population  and  wealth. 

But  when  the  stocks  of  the  road  are  held  as  they  now  are,  for  speculative  purposes 
alone,  the  holders  have  no  interests  in  the  future  of  the  railroads,  or  in  the  future  of 
the  country  which  they  traverse,  or  in  the  people  of  that  country.  Their  interest  is  in 
the  reports  and  in  the  next  dividends.  As  these  are  to  govern  and  regulate  the  prices 
in  which  they  look  for  advantageous  sales  and  large  profits,  this  state  of  affairs  causes 
an  irresistible  demand  by  the  holders  of  the  stocks,  upon  the  officers  who  are  managing 
the  roads,  for  favorable  reports  and  large  dividends,  which  can  only  be  given  by  exacting 
such  high  rates  of  the  patrons  of  the  roads,  and  the  country  through  which  they  pass, 
as  to  strip  every  industry  and  every  interest  that  the  road  may  touch,  of  all  profits,  with 
most  disastrous  results  to  the  country  arid  to  the  people. 

A  railroad  commission,  clothed  with  proper  authority,  could  prevent  all  this  by 
the  establishment  of  rates  that  would  be  just  to  the  country  and  to  the  roads  by  dis- 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXTEXTION  OE  YIRGIXIA. 


2157 


regarding  these  demands  made  by  speculators  in  stocks,  and  prescribing  and  fixing  a 
rate  for  the  roads  by  which  the  country  would  be  developed,  enriched  and  made 
populous.  The  stimulus  that  such  a  favorable  rate  would  give  to  all  pursuits  and  all 
industries  would  in  return  pay  the  roads,  by  reason  of  increased  travel  and  a  larger 
tonnage,  more  than  they  now  make  by  the  high  rates  upon  their  light  travel  and 
small  tonnage." 

That  was  the  opinion  of  the  Chairman  of  the  Georgia  Commission  as  to  the  effect  of 
a  railroad  commission  such  as  was  established  in  Georgia,  after  eleven  years  of  exper- 
ience. 

In  North  Carolina  they  have  had  a  similar  commission,  one  which  is  more  like 
the  commission  which  the  majority  of  your  committee  report  than  any  commission  in 
the  United  States.  It  is  one  of  the  most  recent,  being  only  about  three  years  old.  In 
reply  to  the  fears  that  my  worthy  friends  have,  that  this  vrill  work  a  hardship  on  the 
railroads,  I  will  tell  you  how  it  has  affected  them  in  North  Carolina,  as  shown  by  their 
report,  gotten  out  in  January,  1901.  This  was  under  the  working  of  a  commission 
substantially  the  same  as  we  have  now: 

In  1S97  the  gross  earnings  in  North  Carolina  were  $11,2.52,359;  in  1S98,  $11,543,516; 
in  1899,  $12,995,725;  and  in  1900,  $14,919,832. 

While  the  operating  expenses  for  1897  were  $7,657,786;  for  1898,  $7,395,548;  for 
1899,  $8,186,500;  and  for  1900,  $9,336,881. 

So  that  the  net  income  from  operations  for  1897  was  $3,594,573;  for  1898,  $4,147,- 
968;  for  1899,  $4,809,235;  and  for  1900,  $5,582,950. 

A  steady  increase  from  year  to  year  right  straight  along;  and  last  year  was,  as 
I  said,  nearly  $800,000  net  increase,  and  all  under  the  operation  of  a  railroad  commis- 
-sion  which  my  worthy  friends  think  would  be  absolutely  destructive  to  railroad  inter- 
ests. 

Let  us  look  at  this  Georgia  Railroad  Commission  in  a  more  recent  report.  I  will 
give  the  mileage  and  the  gross  earnings,  and  not  encumber  the  record  with  any  fuller 
statement  of  this  table,  but  I  should  be  very  glad  to  show  it  to  any  member  who 
desires  to  see  it.    I  read  from  page  138  of  the  last  Georgia  Commission  report. 

In  1S95  there  were  5,240.52  miles  of  railroad  in  Georgia,  whose  net  earnings  were 
$4,532,416.36;  in  1896  there  were  5,291.41  miles  of  railroad;  net  earnings,  $5,270,131.67; 
in  1897  there  were  5,374.82  miles,  with  net  earnings  of  $5,632,349.06;  in  1898  there 
were  5,475.26  miles,  with  net  earnings  of  $5,552,306.01. 

In  1899  there  were  5,531.86  miles,  ^ith  net  earnings  of  $6,296,591.51;  in  1900  there 
were  5,614.88  miles,  with  net  earnings  of  $6,790,519.43;  in  1901  there  were  5,816.80  miles, 
with  net  earnings  of  $6,862,573.19. 

So  that  it  seems  the  Georgia  Commission  has  not  proven  so  destructive. 

Remember,  Mr.  Chairman  and  gentlemen,  we  have  nineteen  States  in  the  Union 
under  which  these  railroad  commissions  are  in  operation.  In  a  recent  publication  which 
appeared  in  the  Virginian-Pilot,  of  January  4,  1902,  as  to  the  mileage  of  some  of  the 
southern  roads,  I  find  that  in  Alabama  last  year  there  were  built  102.97  miles;  in 
Arkansas,  155.91  miles;  in  Florida,  59.80;  in  Georgia,  203.45  miles;  in  Kentuclcy,  37.24 
miles;  in  Louisiana,  160.73  miles;  in  Mississippi,  98.46  miles;  in  North  Carolina,  72.90 
miles;  in  Oklahoma,  427.82  miles;  in  South  Carolina  47.50  miles;  in  Tennessee,  125.13 
miles:  in  Texas  (where  they  have  one  of  most  stringent  railroad  commissions  in  the 
country),  583.60  miles — and  that  is  the  State  where  Mr.  Ktmtington  predicted  there 
would  never  be  any  more  railroads  built:  in  Virginia,  where  vre  practically  have  a  com- 
mission without  pov'ers,  20.60  miles;  in  West  Virginia,  100.85  miles. 

Can  you  think  from  that  that  the  existence  of  these  railroad  commissioners  is  inju- 
rious to  the  building  of  railroads?  Louisiana  has  a  very  stringent  railroad  commission,  and 
It  has,  next  to  Georgia,  I  believe,  the  largest  mileage  in  the  South.  Then  in  the  matter 
of  increase  of  mileage  last  year,  comes  Georgia,  and  then  Texas,  with  160,203  and  583 


2158 


DE-BATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOi^  OF  VIRGINIA. 


miles  respectively,  in  those  States  where  they  have  the  strongest  railroad  commissions, 
except  in  North  Carolina,  in  the  South,  as  against  twenty  miles  for  old  Virginia. 

Here  we  stand  at  the  very  threshold  of  all  the  northern  commerce  that  is  pouring 
into  our  Southland.  Day  by  day,  month  by  month,  and  year  by  year,  do  we  see  it  pass 
over  our  borders  and  go  down  to  the  southland,  down  to  North  Carolina  and  to  Georgia, 
where  we  see  manufactures  budding  forth  like  young  spring  blossoms  almost  every  day 
in  the  year;  where  they  have  prosperity  and  thrift;  where  $85,000,000  was  added  last 
year,  as  I  understand,  to  the  taxable  value  of  North  Carolina.  They  have  railroad  com- 
missions, and  we  practically  have  none. 

Can  anything  speak  to  you,  gentlemen,  more  eloquently  than  that;  and  yet  my 
worthy  friends  tell  you  that  if  we  adopt  the  very  institutions  that  have  been  adopted 
by  these  thriving  States,  who  kre  not  blessed  by  nature  with  one-tenth  of  the  resources 
we  have,  that  what  has  proven  a  God-send  to  them  and  made  their  wilderness  bloom 
and  blosisom  like  the  rose,  will  prove  absolutely  destructive  to  us,  and  will  make  us 
lose  that  miserable  little  mileage  of  roads  we  got  last  year  instead  of  gaining  some  of 
the  hundreds  of  miles  of  roads  that  these  other  States  gained  under  similar  circum- 
stances and  conditions! 

I  do  not  like  to  weary  the  committee  so  much  with  these  dry  figures,  but  gentle- 
men, we  are  not  here  so  much  for  pleasure  or  for  our  health;  we  are  here  to  attend  ta 
business,  business  of  the  utmost  importance,  and  even  if  it  does  weary  us,  we  must 
stand  up  to  it  and  bear  it,  because  it  is  important.    Figures  talk,  and  figuresi  do  not  lie. 

In  connection  with  what  I  stated  to  you  just  now,  that  in  the  United  States  are 
jn^neteen  States  with  power  to  control  railroads  and  fix  the  rates,  let  us  see  if  the- 
railroads  have  suffered  under  these  institutions;  and  in  this  connection,  Mr.  Chairman 
and  gentlem.en  of  the  committee,  let  usi  try,  if  the  human  mind  is  capable  of  grasping 
such  figures,  to  form  some  vague  conception  of  the  extent  of  the  power  of  the  transpor- 
tation companies,  that  are  now  practically,  so  for  as  our  trade  is  concerned,  without 
law  in  the  fixing  of  their  rates  and  the  controling  of  their  facilities.  I  read  from  the 
last  report,  made  about  a  month  ago,  of  the  Interstate  Commerce  Commission: 

The  returns  of  railroads  show  that  they  are  operating  192,193  miles  of  line,  or 
probably  99  per  cent,  of  the  mileage  that  will  be  covered  by  the  final  report  for  the 
year.  The  passenger  earnings  of  these  railways  were  $426,909,210,  and  the  freight 
earnings  $1,114,740,770.  The  total  earnings  were  $1,578,164,205,  or  $8,211  per  mile  of 
line.  The  gross  earnings  for  1900,  as  shown  in  the  final  report  for  that  year,  were 
$1,487,044,814.  The  operating  expenses  for  1901  amounted  to  $1,023,156,281,  or  $5,323 
per  mile  of  line,  the  net  earnings  of  the  roads  included  in  this  advance  report  being 
$555,007,924,  or  $35,577,218  in  excess  of  their  earnings  during  the  fiscal  year  1900.  The 
total  income  of  these  roads,  including  $65,271,244  received  from  investments  and  other 
sources,  was  $620,279,168. 

The  total  deductions  from  income,  not  including  dividendsi,  were  $421,625,796.  In 
this  amount  are  included  interest  of  bonds,  rents  for  leased  lines,  betterments  charged 
to  income,  taxes  (which  were  $47,041,214),  and  other  miscellaneous  charges.  The 
amount  of  dividends  declared  during  the  year  was  $121,108,637.  As  it  is  shown  that  the 
dividends  of  the  corresponding  roads  for  1900  were  $108,210,652,  it  appears  that  the 
pecuniary  returns  to  their  stockholders  in  1901  were  about  $13,000,000  greater  than  in 
the  year  before.  It  should,  perhaps,  be  explained  that  the  dividends  stated  in  these 
preliminary  reports,  which  are  compiled  from  the  reports  of  operating  roads  only,  do 
not  represent  the  total  amount  of  dividends  declared  on  the  stocks  of  all  tne  railways 
in  the  United  States,  because  the  dividends  declared  by  those  companies  that  lease 
their  property  tO'  others  for  operation  are  paid  from  the  rentals  they  receive,  and  such 
dividends  are  necessarily  omitted  from  the  reports-  of  this  character.  Returns  for  a 
series  of  years  indicate,  however,  that  the  total  amount  of  dividends  paid  by  both  classes 
of  companies  annually  includes  about  $30,000,000  paid  on  the  part  of  leased  lines. 

I  read  those  figures,,  gentlemen,  to  refute  the  charge  that  railroad  commissions  are 
injurious  to  the  railroads  and  the  people  who  invest  in  them.  We  cannot  control  inter- 
state commerce,  or  effect  it.    Our  railroad  commission  is  limited  in  its  operation  to 


DEBATES  OF  THE  COXSTITUTTOXAL  COXVEXTIOX  OF  VIRGIXIA. 


3159 


local  traffic;  but  gentlemen  of  the  committee,  local  traffic  is  vastly  more  in  need  of 
protection  from  the  government  than  is  interstate  commerce.  Interstate  commerce  is 
generally  much  larger  in  bulk;  much  more  is  involved;  bigger  interests  are  at  stake, 
and  they  can  better  afford  to  fight  their  own  battles  and  protect  the  little  local  ship- 
pers along  the  line. 

Interstate  commerce  almost  invariably  proceeds  from  points  where  there  is  v\-hat- 
ever  may  be  left  of  competition.  Local  traffic  is  absolutely  vithotit  competition.  But 
one  railroad  runs  through  one  community,  and  that  railroad  is  absolutely  master  of  thQ 
situation.  It  is  in  the  nature,  necessarily,  of  a  monopoly,  ho^Yever  liberal-minded  the 
men  may  be  who  manage  it.  I  say,  therefore,  it  is  the  local  traffic  that  needs  protection 
most.  As  to  many  of  the  little  local  dealers,  because  their  freight  is  not  large,  the 
railroads  do  not  care  to  haul  it.  In  every  business,  there  is  a  part  of  it  which  is  not 
remunerative  nor  particularly  desirable,  either  on  account  of  its  character  or  on  ac- 
count of  its  extent.  That  is  true  in  the  railroad  business  just  as  it  is  in  every  other 
business,  and  the  railroads  vrould  be  very  glad  to  get  rid  of  it.  They  do  all  they  can 
to  discourage  it:  and  notwithstanding  the  fact  that  that  traffic  and  freight  may  mean 
everything  in  this  world  to  the  man  who  ships  it,  it  is  of  such  little  importance  to  the 
railroads  that,  in  order  to  get  rid  of  the  bother  of  handling  it,  they  will  do  all  chey  can 
to  harass  him.  to  break  him  down  and  drive  him  out  of  btisiness.  He  is  the  man  who 
needs  protection.  How  often,  when  a  railroad,  in  order  to  get  freight  to  carry  from  one 
big  metropolis  to  another,  does  not  make  as  much  on  its  through  freight  as  it  would 
desire,  it  makes  up  the  difference  on  its  local  freight,  where  there  is  nothing  to  protect 
the  local  shippers  and  where  the  railroad  can  charge  what  it  chooses. 

One  other  remark,  gentlemen,  and  this  I  want  you  to  remember  if  you  do  not  re- 
member anything  else  I  have  said  in  my  long  and.  I  know,  tiresome  address  to  you. 
The  railroads  of  the  State  have  practically  admitted  that  it  would  be  just  and  proper 
to  increase  their  taxes  some  $200,000  or  more.  Your  Committee  on  Taxation  has  re- 
sorted a  scheme  of  taxation  where  the  taxes  of  the  railroads  will  be  increased  several 
hundred  thousand  dollars  in  the  State.  Now,  I  ask  you,  gentlemen,  as  business  men, 
as  a  common-sense  proposition,  unless,  there  is  some  efficient  government  control  over 
the  rates  of  those  roads,  do  you  not  know  that  they  will  pass  every  dollar  of  that  tax 
over  to  the  shippers  along  their  local  lines,  and  make  the  people  of  Virginia  pay  every 
cent  of  it?  While  yoti  think  yoti  are  taxing  the  railroads,  they  are  laughing  in  their 
sleeves  and  saying,  as  a  distinguished  railroad  president  is  said  to  have  stated  to  a 
member  of  this  Convention  not  long  since,  "You  old  fogies  down  in  Aarginia  don't  know 
how  to  handle  corporations  and  railroads."  Ever\'  dollar  of  it  will  come  from  your 
constituents  and  mine,  unless  you  adopt  some  effective  means  to  control  them  and 
prevent  their  raising  their  rate  just  as  ft  may  be  necessary  to  meet  their  increased  taxa- 
tion. 

Mr.  Hunton:  As  to  the  remark  which  the  gentleman  attributes  to  a  distinguished 
railroad  president,  was  it  addressed  to  the  subject  of  taxation  or  the  subject  of  rates 
and  a  commission? 

:*dr.  Braxton:  I  think  it  was  addressed  to  the  subject  of  taxation.  That  was  the 
subject  to  which  I  was  trying  to  address  myself,  and  to  show  that  unless  you  couple 
with  your  provision  for  increasing  their  taxation  some  other  provision  that  will  pre- 
vent their  passing  that  tax  on  to  the  local  traffic  on  the  sides  of  their  roads,  3-ou  have 
done  a  vain,  futile  thing,  and  you  have  just  increased  3-our  own  taxes  without  knowing 
it. 

Now,  gentlemen,  I  come  to  the  discussion  of  the  particular  provisions  of  our  com- 
mission, as  your  committee  has  reported  it  to  you.  It  has  been  painted  to  you  very 
much  like  the  devil,  with  hoofs,  hide  and  horns,  but  I  think  when  you  examine  it  you 
will  find  it  does  not  justify  any  of  the  criticisms  that  its  opponents  have  passed  upon  it 
as  being  a  radical  and  extreme  measure. 

This  commission  affects  both  the  transportation  companies  and  the  general  coi^ora- 


2160  DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTION  OF  VIRGINIA. 

tions  of  all  sorts,  kinds  and  descriptions;  but  so  far  as  it  affects  private  corporations, 
not  transportation  companies  it  contains  nothing  practically  new.  Your  committee 
when  they  come  to  consider  this  subject,  recognized  the  fact  that  the  corporate 
Interests  of  the  State  are  exceedingly  large,  that  a  very  large  proportion  of  all  the 
property  of  the  State  is  invested  in  corporations  of  one  kind  or  another,  and  a  large 
part  of  the  people  of  the  State  are  interested  in  corporations  of  one  kind  and  another. 
They  recognize  the  fact  that  as.  time  goes  on  there  is  every  probability  that  the  increase 
of  corporate  property  will  be  very  great;  and  that  niodern  commercial  life  demands  and 
requires  that  any  entei-prise,  except  on  the  smallest  scale,  be  conducted  and  approached 
through  the  instruments  of  corporations. 

It  seems  to  us,  therefore  but  reasonable,  when  we  came  to  deal  with  a  subject  of 
such  vast  importance  as  this  that  there  should  be  devoted  to  its  consideration  some 
special  department  of  the  government,  and  not  that  it  should  be  tacked  on  as  an 
excresence,  as  it  were,  upon  a  half  dozen  different  departments  of  government  made 
the  duty  of  different  government  officers  to  consider  that,  along  with  other  duties  which 
they  have  which  are  not  at  all  cognate.  Therefore,  it  was  our  idea  to  take  all  the 
departments  of  the  State  in  every  respect  as  they  relate  to  corporations,  and  bring 
them  under  the  head  of  one  great  department,  devoted  entirely  to  the  consideration  of 
the  corporate  situation,  making  it  sufficiently  elastic  to  have  as  many  several  depart- 
ments, bureaus  and  what  not,  as  in  the  course  of  development  and  time  it  may  be 
found  necessary  to  have.  We  found  that  the  General  Assembly  was  taking  up  a  great 
deal  of  its  time,  two-thirds  of  it,  in  granting  or  refusing  applications  for  special  charters. 
We  found  that  all  the  cities  throughout  the  Commonwealth  were  grinding  out  charters 
day  by  day,  without  any  uniformity  of  action,  and  without  any  regularity,  with  nobody 
keeping  tracK  of  them.  We  found  the  Secretary  of  State  charged  with  being  the 
custodian  of  those  charters.  We  found  the  auditors  charged  with  collecting  reports 
from  banks  and  insurance  companies..  We  found  the  Board  of  Public  Works  charged 
with  assessing  the  property  of  certain  other  kinds  of  corporations.  We  found  the 
Railroad  Commissions  charged  with  looking  after  still  another  kind  of  corporations. 
Six  departments  of  the  government  were  looking  after  the  corporate  interests  in  their 
various  capacities.  We  thought  the  best  and  v/isest  thing  to  do,  without  changing 
those  functions  at  all,  v/as  simply  to  collect  them  together  and  put  them  under  one 
department  charged  with  the  exclusive  duty  of  looking  after  corporate  interests,  con- 
structed especially  with  reference  to  that  thing,  headed  by  men  whose  sole  duty  it  was 
to  consider  the  corporate  situation  as  it  existed,  capable  of  advising  the  General  As- 
sembly, when  they  come  here,  through  their  annual  reports,  of  what  is  wise  and  un- 
wise in  the  dealing  of  the  States  with  those  corporations. 

So  far  as  private  corporations  are  concerned,  we  simply  say  that  all  the  functions 
of  the  State  in  creating,  regulating,  supervising  and  controling  these  corporations, 
whether  those  functions  be  extended  or  contracted,  shall  be  brought  together  and  per- 
formed through  this  one  department  of  government.  With  respect  to  the  private 
corporations,  thlsi  commission  has  no  powers  whatsoever  that  are  not  purely  ministerial. 
It  practically  does  not  do  a  thing  with  reference  to  them  that  is  not  already  done  by 
some  one  else.  The  insurance  companies,  in  stead  of  making  their  reports  to  the 
Auditor,  make  their  reports  to  the  Corporation  Commission,  The  banks,  instead  of 
making  their  report  to  the  Auditor,  make  their  report  to  the  Corporation  Commission. 
When  a  man  wants  a  charter,  instead  of  going  to  the  court  and  leaving  it  to  the  judge, 
unrestrained,  to  say  whether  he  will  grant  the  charter  or  will  not  grant  it,  or  on  what 
terms  he  will  grant  it,  he  makes,  an  application  under  the  law  to  the  Corporation  Com- 
mission, which  is  bound  to  grant  a  charter  when  asked  for,  provided  the  requirements 
of  the  law  in  such  case  are  complied  with.  When  that  charter  is  issued,  it  is  filed  at 
one  place.  All  the  reports  that  may  be  required  to  be  made — they  do  not  specify  the 
report;  the  General  Assembly  specifies  the  report — are  now  gathered  together,  some 
in  the  railroad  office,  some  in  the  office  of  the  Secretary  of  State,  some  in  the  Auditors 


DEBATES  OF  THE  COXSTITUT tOXAL  COXA'EXTIOX  OF  VIRGIXIA. 


2161 


office,  some  in  the  office  of  the  clerk  of  the  House  of  Delegates :  but  all  public  documents 
and  information  with  reference  to  corporations  will  then  be  found  in  one  place,  where 
j'ou  can  go,  and  to  which  you  can  write  for  all  information  that  the  public  will  have  a 
right  to  get. 

Some  of  my  worthy  friends  have  thought  that  this  provision  authorized  the  com- 
mission to  prescribe  what  sort  of  reports  corporations  should  make;  but  if  you  will 
read  it  carefully  you  will  find  that  they  are  given  no  such  authority.  They  are  given 
exactly  the  same  authority  as  the  auditor  has  to-day.  The  General  Assembly  pre- 
scribes the  report,  and  the  commission  simply  provides  the  form  in  which  the  report 
is  made,  just  as  the  statute  to-day  says^  that  the  Auditor  shall  prescribe  the  fo/m  in 
which  the  reports  that  are  required  by  the  General  Assembly  shall  be  made. 

So  that,  so  far  as  all  private  corporations  are  concerned,  this  Corporation  Com- 
mission does  not  affect  them  one  iota  or  one  stiver  more  than  they  are  affected  to- 
day. One  single  function  is  put  upon  them  which  does  not  exist  to-day;  and  that  is 
that,  while  the  statute  to-day  requires  different  kinds  or  corporations,  especially 
foreign  corporations,  to  comply  with  certain  requirements,  to  file  their  charter,  make 
a  list  of  their  directors,  state  what  their  capital  stock  is,  and  appoint  an  agent  to  have 
process  served  on  him  nobody  is  charged  with  the  duty  of  seeing  that  that  law  is 
enforced.  The  result  is  that  from  what  we  can  learn,  there  are  hundreds  and  possibly 
thousands  of  corporations;  doing  business  in  the  State  to-day  who  have  not  complied 
with  the  law.  It  is  made  the  duty  of  this  commission  not  to  prescribe  any  report, 
not  to  prescribe  any  duty  for  a  private  corporation;  but  simply  when  that  duty  is 
prescribed  by  the  General  Assembly,  it  is,  the  duty  of  this  commission  to  see  that  the 
corporations  comply  with  it,  by  making  the  kind  of  reports  that  the  General  Assembly 
says  they  shall  make,  and  all  they  can  do  in  such  case  is,  when  it  comes  to  their  at- 
tention, or  when  they  ascertain,  that  a  company  has  failed  to  file  a  report  which  the 
law  requires  of  it,  they  shall  send  a  notice  to  the  company  to  appear  before  them  on 
such  a  day  and  show  cause  why  they  should  not  be  fined  for  not  filing  their  report. 
When  they  appear,  if  they  do  not  show  good  cause,  this  commission  has  jurisdiction  to 
fine  them,  from  one  cent  to  $500,  if  they  choose.  The  General  Assembly  is  left  free  to 
give  them  an  appeal  in  every  case  as  to  ever^'thing  the  commission  can  do,  to  the 
Supreme  Court  of  Appeals  of  the  State;  and  I  challenge  any  gentleman  to  put  his  hand 
on  anything  in  connection  with  the  private  corporations  of  the  State,  where  the  so- 
called  arbitrary  power  of  the  Commission  exists. 

It  has  no  power  or  right  to  do  a  thing  except  to  administer  the  identical  functions 
that  are  to-day  administered  and  in  addition  to  that  simply  to  say  that  the  corporations 
shall  make  the  reports  that  the  law  requires  of  them,  and  on  their  failure  to  do  so,  to 
fine  them,  subject  to  the  right  that  the  General  Assembly  can  give  them  at  any  time, 
to  appeal  to  the  Supreme  Court  of  Appeals  from  any  decision,  however  trifling  it  may 
be. 

Great  effort  has  been  made  by  my  friends,  the  railroads,  to  confuse  in  the  minds 
of  the  people  the  functions  of  this  commission  as  they  apply  to  private  corporations 
and  as  they  apply  to  public  corporations.  They  use  the  vague  phrase,  that  it  affects 
all  coHDorations.  Certainly  it  does,  but  it  affects  them  in  very  different  ways.  WTien 
they  tell  you  this  is  an  iron  hand  upon  the  corporations,  that  it  has  put  them  in  straight- 
jackets,  that  it  is  arbitrary.  I  ask  3'ou  to  take  the  report  for  yourselves  and  see  what 
single  solitary  thing  there  is  in  there  that  this  Commission  can  do  to  any  corpora- 
tion, outside  of  a  transportation  company,  that  is  not  now  done  by  some  officer  of  the 
State,  unless  it  is  in  the  respect  of  which  I  spoke  to  fine  them  for  failure  to  make 
such  kind  of  reports  as  the  General  Assembly  may  require.  They  cannot  specify  a  thing 
in  their  reports  upon  these  private  corporations  that  the  General  Assembly  has  not 
control  of. 

Now,  then,  gentlemen  of  the  Committee,  and  Mr.  Chairman,  I  hope  you  will,  in  all 
I  am  about  to  say  now,  understand  and  bear  in  mind  that  none  of  the  functions  which 


2163  DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGINIA. 

I  am  about  to  discuss  of  fixing  rates  and  prescribing  rules  and  regulations,  apply  to 
any  corporation  except  the  transporation  or  transmisssion  companies.  They  are  the 
functions  which  this  commission  performs  in  its  capacity  of  a  railroad  commission, 
and  in  that  capacity  only. 

First,  as  to  rates.  I  will  endeavor  to  point  out  to  you  that  the  State  has  the  right 
to  prescribe  rates,  and  that  is  conceded.  I  have  attempted  to  point  out  to  you  that 
the  occasion  exists  for  exercising  that  right;  and  that  is  practically  conceded,  even 
by  the  report  of  the  minority.  It  is  simply  a  question  between  the  minority  and  the 
majority  of  this  committee,  as  to  which  is  the  most  effective  and  efficient  way  to  do  it. 
We  say  this  Commission  shall  have  the  power  of  fixing  rates  and  charges  of  transporta- 
tion of  railroad  companies.  We  say  it  because,  for  the  reasons  I  have  tried  to  explain 
to  you,  it  is  utterly  impossible,  as  a  physical  thing,  for  the  General  Assembly  to  do  it, 
and  it  is  utterly  impossible  for  the  courts,  as  an  original  thing  to  do  it;  and  we  say  this 
Commission  shall  fix  those  rates  and  classification  of  traffic. 

But  out  of  abundance  of  caution,  so  that  there  cannot  be,  by  any  possibility,  any 
injury  done, — and  your  committee  has  striven  with  all  the  might  they  are  capable  of 
to  be  as  conservative  and  as  careful  to  hedge  about  this  provision  by  every  means 
known  to  civilized  government,  to  prevent  abuse  in  every  case  where  a  rate  or  a  classi- 
fication is  fixed  or  anything  that  can  affect  the  charges  of  a  railroad  company — they 
are  given  the  right  to  appeal  to  the  court  of  appeals;  they  are  given  the  right  to  con- 
tinue making  their  own  rate  and  continue  collecting  their  own  rate  until  the  appeal 
is  settled  by  merely  giving  a  bond  to  refund  the  over  charge  if  the  appeal  is  not  sus- 
tained. The  hearing  of  that  case  is  given  precedence  on  the  docket  of  the  Supreme- 
Court,  and  it  is  provided  that  it  matters  not  whether  that  court  is  sitting  here  or  in 
Staunton  or  in  Wytheville,  it  matters  not  how  many  cases  are  on  the  docket  ahead 
of  it,  with  the  sole  exception  of  cases  involving  personal  liberty,  such  as  criminal  cases 
and  habeas  corpus,  all  these  appeals  from  decisions  of  the  Commission  on  rate  ques- 
tions shall  have  precedence  and  shall  be  heard  without  delay  by  the  court. 

We  provide  that  when  the  case  gets  into  the  court,  if  the  railroad  thinks  it  has 
forgotten  or  omitted  any  evidence  that  it  ought  to  have  introduced,  or  if  it  has  been 
taken  by  surprise  by  any  evidence  certified  up  by  the  Commission,  it  shall  be  in  the 
discretion  of  the  court  to  remand  the  case  to  the  Commission  for  further  examination; 
and  during  all  that  time  the  railroad  goes  on  charging  its  own  rates,  just  as  it  did 
before,  merely  with  the  provision  that  if  the  appeal  is  ultimately  dismissed,  it  will 
refund  the  excess. 

So  that  if  they  sustain  their  appeal,  no  possible  harm  is  done  to  them. 

In  order  to  illustrate  to  the  Committee  the  actual  work  of  this  provision,  and  to 
leave  it  to  you  as  fair-minded  men  to  say  whether  any  harm  comes  in,  any  injustice, 
anything  arbitrary,  we  will  say  there  is  a  rate  from  Lynchburg  to  Richmond,  on  some 
specific  article,  of  fifty  cents.  This  Commission,  either  of  its  own  investigation  or 
because  its  attention  is  called  to  it  by  anybody  complaining,  has  it  brought  to  their 
attention  that  this  rate  is  probably  too  high,  and  that  some  lower  rate,  say  forty  cents 
is  a  proper  one.  The  railroad  is  summond  to  show  cause,  if  they  can,  why  the  rate 
of  fifty  cents  from  Lynchburg  to  Richmond  be  not  reduced  to  forty  cents.  The  railroad 
appears  and  introduces  its  evidence.  It  makes  its  arguments  to  show  why  fifty  cents 
is  a  proper  rate,  and  ought  to  be  retained.  If  the  Railroad  Commission  thinks  that  is 
true,  it  confirms  the  rate.  If  the  investigation  was  started  on  the  complaint  of  anyone, 
and  that  complainant  is  not  satisfied,  he  can  take  an  appeal  but  suppose  the  Railroad 
Commission  says,  after  hearing  the  railroad.  "We  are  not  satisfied  with  your  reasons; 
we  find  that  you  used  to  haul  this  same  thing,  up  to  six  months  ago,  for  forty  cents; 
you  have  not  been  able  to  point  out  to  us  any  difference  in  conditions.  We  find  that 
other  railroads  are  carrying  the  same  character  of  goods  for  forty  cents.  In  short,  it 
is  our  decision  that  forty  cents  is  a  proper  rate."  Now,  if  the  railroad  company  thinks 
that  is  just,  all  they  have  to  do  is  to  stop  and  ask  forty  cents.    But  if  the  railroad 


DEBATES  OE  THE  COXSTITUTEOXAL  COXVEXTIOX  OE  TIEGIXIA. 


2163 


company  thinks  the  Commission  has  erred,  if  they  think  they  ought  to  continue  charg- 
ing fifty  cents  what  do  they  do?  They  say  to  the  c-ommission.  "Yi'e  will  take  an  ap- 
peal; we  will  give  a  refunding  hond  under  which  we  will  agree  to  refund  to  the  various 
shippers  that  additional  ten  cents  that  we  may  collect  from  them  pending  an  appeal 
if  our  appeal  is  not  sustained." 

They  give  that  refunding  bond,  and  they  continue  to  charge  fifty  cents,  :"List  as 
they  always  did.. 

That  case  is  immediately  certified  to  the  court  of  appeals.  Accompanying  the 
certificate  is  a  report  of  the  Commission  exactly  like  the  report  of  the  special  Master 
in  Chancery,  stating  the  reasons  and  the  facts  upon  which  it  bases  its  conclusions;  and 
when  it  comes  up  before  the  Supreme  Court,  if  the  railroad  is  satisfied  with  the  record, 
they  go  to  trial  on  it  and  it  is  the  duty  of  the  Attorney-General  to  represent  the  decision 
of  the  corporation  commission;  but  if  the  railroad  finds  that  in  the  facts  certified  up  by 
the  commission  are  some  facts  that  they  did  not  know  were  before  the  Commission 
and  that  they  think  they  could  meet,  they  represent  that  fact  to  the  court,  and  the 
court  can  remand  it  for  further  proceedings  by  the  Commission. 

The  case,  when  finally  made  up,  is  heard  by  the  court,  just  as  any  other  case  is 
heard,  on  the  record,  on  the  report  of  this  special  master,  you  may  say;  and  if  the 
court  thinks  the  decision  of  the  commission  is  right,  it  affirms  it,  and  then  the  railroad 
will  have  to  refund  that  ten  cents  to  the  people  from  whom  it  collected  it  pending  the 
appeal;  but  if  the  court  does  not  affirm  it,  the  court  can  set  it  aside  and  restore  the 
fifty  cent  rate,  or  it  can  say  that  the  rates  shall  be  forty-five  cents,  and  the  refunding 
will  only  be  five  cents. 

Xow.  what  harm  is  done  to  the  railroad  company?  Here  is  a  controversy  between 
the  shippers  and  the  public  on  the  one  side  and  the  railroad  company  on  the  other. 
The  railroad  company  says  in  effect.  '"We  alone  are  capable  of  deciding  that  con- 
troversy, to  which  we  are  a  party."  I  say,  "You  are  not  fit  to  decide  it.  No  man 
should  be  allowed  to  be  judge  in  his  own  case.  Here  is  a  matter  that  you  do  not  agree 
to,  and  it  must  be  passed  upon  by  an  impartial  tribunal,  from  which  you  shall  have  the 
right  of  appeal  to  the  highest  court  in  the  State,  with  every  protection  that  every  other 
man  has  on  any  controversy  that  can  involve  his  life  liberty  or  property." 

Xow,  gentlemen  of  the  committee,  unless  it  be  that  this  question  of  fixing  railroad 
rates  is  a  thing  which  is  incapable  of  treatment,  how  in  a  fairer  way  could  you  have 
it  passed  upon  than  in  the  way  your  committee  has  proposed  to  you?  If  you  went  to 
the  court,  in  the  first  place,  what  would  the  court  do?  It  would  inevitably  refer  the 
matter  to  a  master  in  chancery,  or  to  a  special  master,  to  examine  into  it  and  report 
on  it. 

We  say  it  shall  go  to  the  master  in  the  first  place,  that  the  master  must  not  be 
an  ordinary  master  in  chancery,  but  must  be  a  body  composed  of  high  officials  of  the 
State  who  are  experts  in  such  matters,  who  pass  on  subjects  of  that  kind,  and  nothing 
else,  every  day;  and  when  they  have  made  their  report,  if  the  parties  are  not  satisfied 
with  it,  the  court  can  revievr  it  like  they  do  any  other  report,  and  can  render  a  judg- 
ment accordingly. 

My  friends  say  that  this  commission  should  not  be  allowed  to  pass  upon  these  mat- 
ters to  investigate  them  themselves.  I  say,  gentlemen,  that  that  is  the  function  per- 
formed by  this  commission  in  its  capacity  as  a  special  Legislature,  as  a  committee  of 
the  Legislature.  It  is  a  legislative  function  which  the  Constitution  confers  upon  them 
because  it  is  of  such  a  peculiar  character  that  the  ordinary  Legislature  is  not  organized 
in  a  way  to  perform  it.  It  is  its  duty  to  investigate  it  just  like  it  is  the  duty  of  the 
Committee  on  Taxation  of  this  body  to  investigate  the  subject  of  taxation,  and  not  to 
sit  still  and  wait  until  complaints  are  made  before  it;  and  when  it  has  rendered  its 
decision — and  here  comes  in  another  difference  between  me  and  the  gentleman  with 
whom  I  am  so  unfortunate  as  to  disagree — some  of  my  worthy  friends  may  say  that 
you  may  let  your  railroad  commission  fix  it,  but  you  ought  not  to  allow  them  to  enforce 
it,  you  ought  to  make  them  go  to  the  courts  to  enforce  it.    I  am  frank  to  tell  you,  gen- 


2164  DEBATES  OF  THE  COXSTITUTIOIsTAL  CONVEXTIOJsT  OF  VIRGINIA. 

tlemen  of  the  committee,  that  in  many  of  the  States  the  railroad  commissions  are 
obliged  to  go  to  the  courts  to  enforce  their  rates;  but,  without  exception,  as  far  as  I 
know,  it  is  recognized  in  those  States  that  that  is  a  defect  in  the  provisions  of  their 
railroad  commissions.  It  is  a  defect  which  has  occurred  because  of  one  of  two  reasons. 
Those  commissions,  as  a  rule,  were  established  by  statute  and  not  by  Constitution;  and, 
therefore,  judicial  powers  could  not  be  conferred  upon  them.  For  the  identical  same 
reason  that  in  Illinois  the  statute  which  established  the  Torrens  land  system  failed 
because  they  could  not  give  it  judicial  powers  without  a  constitutional  provision,  and, 
therefore,  owing  to  that  constitutional  defect  in  the  State,  they  were  obliged  to  say 
to  these  people.  "You  will  have  to  go  to  court  to  enforce  your  restrictions;  we  can- 
not confer  upon  you  judical  powers;"  but  just  for  the  same  reason  that  in  the  report 
of  the  Judiciary  Committee  made  to  this  body,  the  authority  is  given  to  establish  a 
special  court  for  the  Torrens  system,  and  give  them  judicial  powers,  so  for  the  same 
reason  we  say  here  that  that  defect  shall  not  exist  here,  because  we  are  not  struggling 
to-day  with  a  constitutional  inhibition.  We  are  making  a  Constitution,  and  we  will 
provide  that  this  commission  should  have  judicial  powers  to  enforce  its  own  decisions, 
subject  to  appeal  in  every  case  in  which  the  Legislature  chooses  to  permit  an  appeal, 
and  in  cases  of  execessive  charges,  subject  to  the  appeal  that  we  give  it  by  this  Consti- 
tution itself. 

In  other  States  where  the  difficulty  was  not  constitutional,  the  same  question  arose 
that  was  referred  to  by  the  Interstate  Commerce  Commission,  the  opposition  of  the 
railroads  to  any  legislation  along  that  line;  because  there  has  not  been  a  single  step 
taken  in  it  that  has  not  been  taken  against  the  serious  protest  of  the  railroad  interests 
in  every  one. 

Where  is  there  anything  unreasonable  in  this?  We  establish  a  commission  com- 
posed of  men  of  the  highest  character  it  is  possible  for  us  to  get.  Their  method  of 
appointment,  their  qualification,  their  term  of  office,  their  remuneration,  are  all  cal- 
culated to  establish  a  tribunal  as  high  in  every  respect  as  the  Supreme  Court  of  the 
State.  We  establish  it  for  the  purpose  of  fixing  railroad  rates;  and  yet,  if  what  my 
friends  say  be  true,  we  say  to  that  tribunal.  "Having  been  organized  for  the  purpose  of 
fixing  rates,  having  inquired  into  the  matter  and  given  the  parties  their  day  before 
you  to  be  heard,  and  having  fixed  those  rates,  the  presumption  of  the  law  shall  be  that 
those  rates  are  wrong,  unjust  and  unreasonable  until  some  court  shall  have  reviewed 
the  decision  and  stated  it  is  otherwise."  We  say  on  the  contrary,  that  when  such  a  tri- 
bunal, in  the  exercise  of  its  functions,  has  fixed  these  rates,  the  presumption  of  the  law 
shall  be  that  they  are  just,  reasonable  and  fair  until  a  court  reverses  it  and  decides  to 
the  contrary.  We  say  the  same  rule  shall  apply  in  that  case  as  applies  to  every  other 
inferior  tribunal,  that  its  judgments  shall  stand  and  shall  be  enforced  until  they  are 
set  aside,  and  shall  not  remain  nullities  until  they  are  affirmed. 

What  sort  of  a  position  would  it  be,  gentlem.en,  to  say  that  a  judgment  of  a  circuit 
court  should  be  of  no  effect  until  the  man  in  whose  favor  it  is  rendered  had  taken  it  to 
the  Court  of  Appeals  and  had  it  affirmed?  And  will  it  not  be  substantially  the  same 
thing  if  you  say  that  these  rates,  which  have  once  been  fixed  by  this  commission,  shall 
remain  without  force  and  virtue  until  the  State  or  the  railroad  commission  has  taken 
the  question  to  a  court  and  had  the  decision  affirmed.  We  say  that,  just  like  a  judg- 
ment of  a  circuit  court,  those  rates,  when  made  by  the  constituted  authority,  shall  be 
regarded  as  legal,  fair  and  reasonable,  and  shall  be  in  full  force  and  virtue  until  the 
person  objecting  to  them  has  taken  them  to  the  court  and  had  them  reversed. 

We  say  to  the  railroad  in  every  case,  without  exception,  however  small  or  however 
great,  "Where  your  charges  are  affected,  you  shall  have  the  constitutional  right  to  take 
the  matter  to  the  court  and  have  it  reversed  if  you  are  not  satisfied  with  it;  but  if  you 
do  not  choose  to  do  that,  then  you  shall  not  stand  still  and  defy  this  commission  and  say 
to  them  that  you  will  not  appeal  their  decision  nor  pay  any  attention  to  it." 

We  clothe  this  commission  with  such  power  as  its  importance  and  dignity  demand, 
so  that  when  it  has  fixed  a  rate  for  a  railroad  it  may  say  to  that  road,  "You  must  either 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


2165 


appeal  from  this  rate  and  have  it  reversed,  or  you  must  obey  it;  and  if  you  do  not  obey 
it,  Vr'e  will  summon  you  here;  and  unless  you  give  us  good  reason  for  it,  we  will  fine 
you;  and  if  you  do  not  want  to  pay  the  fine,  3-ou  must  appeal  from  that;  and  if  you  do 
not  appeal  from  it,  the  sheriff  shall  execute  it  as  any  other  judgment  of  a  court."  Is 
there  anything  unreasonable  in  that,  gentlemen.  Is  it  not  perfectly  anomalous  to  do 
otherwise? 

We  might  as  well  recognize  this  fact  once  for  all.  We  must  say  we  will  give  up 
our  power  to  fi:x  the  rates,  we  will  surrender  ourselves  to  the  tender  mercies  of  these 
gentlemen  who  control  the  railroads;  or  else,  if  we  are  going  to  do  it,  we  must  do  it  in 
some  effective  way — effective  but  conservative,  proceeding  along  the  same  old  beaten 
track  of  judicial  proceedings  as  has  been  done  heretofore,  and  of  legislative  investiga- 
tion and  enactment.  Let  this  commission  investigate  the  matter,  get  all  the  evidence 
they  can  and  pass  upon  it,  when  the  public  thinks  the  railroad  is  charging  too  much  and 
the  railroad  thinks  it  is  not.  Do  not  say  we  will  leave  it  to  the  railroad  to  settle  it;  but 
let  us  go,  like  every  other  man  goes,  into  the  courts  of  justice  established  especially  for 
that  purpose,  organized  in  the  only  way  in  which  to  perform  that  function.  Let  us 
go  to  the  commission,  composed  of  impartial  men,  and  have  them  say  whether  or  not 
the  railroad  is  right  or  the  people  are  right.  Do  not  wait  for  the  individual  man  to 
complain;  because,  as  I  have  told  you,  a  shipper  away  out  in  the  Southwest  who  is  over- 
charged five  dollars  cannot  come  here  and  litigate  a  year  or  two  with  a  railroad  com- 
pany. Many  a  time  the  overcharge  does  not  rest  upon  the  shipper,  but  is  passed  on  to 
the  consumer.  The  State  having  parted  with  its  right,  it  is  its  bounden  duty,  as  it  is 
to  legislate  on  any  other  subject,  of  its  own  motion,  to  keep  a  constant  eye  and  watch 
upon  these  people,  to  administer  the  ounce  of  prevention  instead  of  the  pound  of  cure, 
and  to  say  to  the  railroads,  whenever  they  are  found  doing  wrong,  "You  shall  not  charge 
any  more  than  this,  and  if  you  think  our  judgment  is  unfair,  if  you  think  that  in  exer- 
cising power  which  you  concede  we  can  exercise,  we  have  been  unjust  to  you,  go  to  the 
Court  of  Appeals,  the  highest  court  in  the  State,  and  we  will  furnish  you  with  the  best 
judicial  facilities  we  have,  not  to  pass  on  it  originally,  but  to  review  it,  and  we  will 
make  every  other  suitor  in  the  State  stand  aside  and  wait  until  j'our  matter  is  settled 
for  you,  and  in  the  meantime  we  will  enable  you  to  go  on  charging  just  as  you  did 
before,  providing  you  secure  to  us  the  refunding  of  the  overcharge  if  it  should  be 
wrong."  T^Tiat  more  can  they  ask  in  the  name  of  justice,  unlesss  we  are  to  absolutely 
surrender -to  them? 

The  next  thing,  gentlemen,  is  the  fixing  of  any  other  rule,  regulation,  or  require- 
ment of  railroad  companies  that  does  not  involve  the  question  of  charges  or  of  rates, 
or  of  classification  of  traffic. 

It  has  been  stated  and  earnestly  contended  by  some  gentlemen,  that  this  would  be 
giving  up  the  power  to  manage  and  operate  the  road.  I  submit  that  there  is  nothing 
in  this  languarge  to  justify  such  a  contention.  The  right  of  the  State  to  control  the 
railroads  is  a  right  which  has  always  existed.  The  creater  is  ever  greater  than  the 
creature,  especially  when  that  creature  is  brought  into  being  for  the  purpose  of  serving 
the  public.  The  essential  differeence  between  the  American  and  the  European  idea  on 
this  matter  is,  that  the  Europeans  believe  in  owning  the  roads,  in  managing  the  roads, 
and  in  operating  them.  The  Americans  idea  is  neither  to  own  them,  to  manage  them, 
nor  to  operate  them;  but  to  control  them  so  far  as  their  operations  affect  the  general 
public,  so  as  to  see  that  the  general  public  is  not  injured.  In  all  of  its  functions,  in  all 
of  its  internal  business  -arrangements,  and  in  all  of  its  physical  management,  it  is  left 
absolutely  to  itself.  The  only  thing  the  commission  can  do  is  to  make  rules  and  regula- 
tions so  that  when,  in  the  management  and  operation  of  its  roads,  danger  or  apprehen- 
sion of  danger  results  to  the  public,  it  can  say,  "You  must  stop."  The  commission  is 
there  to  control  it  and  to  regulate  it  in  the  performance  of  its  public  duties. 

My  friends  say,  that  inasmuch  as  the  corporation  is  public,  all  of  its  duties  are 
public.  Can  it  be  said  that  the  court  cannot  decide  what  are  its  public  duties?  When 
we  say  "public  duties"  it  is  clearly  an  intimation  that  some  of  its  duties  are  not  public. 


21GG  DEBATES  OF  THE  COXSTITUTIOIsTAL  COXVENTIOJf  OF  YIRGI^tiA. 

Is  it  not  a  matter  too  clear  for  argument,  that  in  the  physical  management  of  the  road 
its  duties  are  not  public  duties  in  the  sense  in  which  the  words  are  used  her©  to-day? 
Its  public  duties  are  those  only  which  affect  the  public,  such  as  its  schedules  and  its 
rates.  For  example,  here  is  a  road  that  runs  by  a  little  town  struggling  along  and  try- 
ing to  build  itself  up.  The  train  does  not  stop  there  at  all,  or  stops  only  in  the  middle 
of  the  night,  or  at  some  outlandish  hour.  Here  are  two  roads  running  together,  and 
one  train  misses  the  schedule  of  the  other  by  five  minutes,  but  neither  will  stop.  They 
are  like  two  bad  boys  quarreling  with  one  another,  while  the  public  is  standing  by 
freezing  or  dying.  Take  such  a  case  as  we  had  there  in  Richmond,  the  metropolis 
of  the  State  where  one  of  the  railroad  companies,  for  years  and  years,  had  in  lieu  of  a 
depot  a  miserable  old  cow-shelter  that  would  have  been  a  disgrace  for  any  man  to  have 
on  his  place  to  put  his  stock  in.  Is  it  possible  that  the  State  should  not  have  the  right 
to  say  that  a  decent  and  respectable  depot  should  be  placed  there?  These  are  the  mat- 
ters and  the  only  matters  while  can  properly  be  construed  to  be  public  duties,  and  which 
can  be  regulated  and  controlled. 

But  observe,  gentlemen,  the  extra  safeguards  put  around  this  provision.  From 
every  decision  of  this  commission  that  can  possibly  be  rendered  the  General  Assembly 
can  grant  an  appeal.  My  friends  have  prayed  to  us  to  leave  them  to  the  General  As- 
sembly; let  the  General  Assembly  do  it;  leave  us  to  the  Generally  Assembly;  that  is 
where  we  want  to  go;  that  is  where  we  will  feel  safe;  that  is  where,  and  where  alone, 
these  powers  can  be  safely  bestowed.  We  say,  "We  will  leave  you  to  the  General  As- 
sembly, the  tribunal  of  your  own  selection,  the  harbor  to  which  you  have  always  pointed 
and  to  which  you  want  to  steer  your  ship.  We  say  that  this  General  Assembly  can 
give  you  an  appeal  from  every  decision  of  every  sort,  kind  and  description  this  commis- 
sion can  render.  If  this  commission  abuses  the  discretion  vested  in  it  and  undertakes 
to  interfere  with  the  private  internal  management  and  operation  of  the  road,  you  have 
got  the  Supreme  Court  of  the  State,  ta  which  you  can  appeal,  with  a  supersedeas,  if 
you  wish;  and  the  Supreme  Court  will  determine  whether  the  regulation  is  reasonable. 
Then,  if  the  commission  thinks  the  regulation  is  reasonable,  and  if  the  Supreme  Court 
of  Appeals  thinks  it  is  reasonable  and  just,  I  say  it  is  fair  to  conclude  that  it  is  reason- 
able and  just,  the  opinions  of  the  railroads  to  the  contrary  notwithstanding. 

Back  of  all  that,  we  virtually  prescribe  that  from  every  rule,  regulation  and  re- 
quirement it  is  possible  for  this  commission  to  make,  not  only  shall  there  be  an  appeal 
to  the  court,  but  the  General  Assembly  shall  remain  supreme  as  it  is  to-day.  The  right 
to  make  rules  and  regulations  exists  in  the  General  Assembly  to-day.  I  call  your  at- 
tention to  the  fact  that  we  cannot  give  to  this  commission  a  single  power  under  God's 
heavens  that  is  not  already  existing  in  the  General  Assembly  or  in  the  courts,  because 
the  entire  power  of  the  State  is  vested  in  the  General  Assembly  and  the  courts.  It  is 
simply  a  question  as  to  where  v/e  shall  vest  this  power.  I  say  that  this  power  to  rule, 
regulate  and  control  the  railroads,  so  far  as  we  are  capable  of  giving  it,  exists  to-day 
in  the  General  Assembly.  By  the  provision  of  this  article  you  will  see  that  we  say  in 
so  many  words,  that  in  all  such  matters  the  power  of  the  General  Assembly  to  legislate 
shall  remain  supreme  and  par-amount,  and  in  all  matters,  except  the  fixing  of  rates, 
the  General  Assembly  can  tie  the  hands  of  this  commission  just  as  tight  as  it  is  possible 
to  tie  them.  There  is  no  rule  or  regulation  they  can  make  which  the  General  Assembly 
cannot  rescind.  There  is  no  restriction  that  can  be  put  upon  them  which  the  General 
Assembly  is  not  capable  of  putting  upon  them,  except  the  fixing  of  rates. 

We  thought  that  was  a  good  thing,  for  this  reason.  We  believed  that  the  power 
of  the  railroads  to  enact  legislation  is  very  small  as  compared  with  its  power  to  prevent 
legislation.  We  think  there  is  no  material  danger  of  the  railroads  getting  the  General 
Assembly  to  enact  afRrmative  bills  to  tie  the  hands  of  this  comm^ission  in  any  matter 
outside  of  the  fixing  of  rates;  whereas  if  we  left  it  to  them  to  grant  these  powers,  the 
railroads,  as  we  believe  from  experience,  could  succeed,  by  one  means  or  another,  in 
preventing  that  legislation.  So  that,  when  we  come  to  consider  the  supposed  danger 
resulting  from  the  power  given  to  this  commission  to  control  the  railroads  we  find  that 


DEBATES  OE  THE  COXSTITUTIGXAL  COXTEXTIOX  OE  YIRGIXIA. 


2167 


it  is  imaginary,  tliat  it  is  restricted  to  their  public  duties  and  matters  which  injure 
the  public.  In  the  second  place,  the  General  Assembly  is  left  the  power  of  giving  an 
appeal  to  the  courts,  and  finally  the  General  Assembly  is  left  paramount  and  supreme 
in  the  whole  matter,  and  can  restrict  or  tie  the  hands  of  the  commission  just  as  much 
as  it  can  to-day. 

This  power  to  regulate  and  control  is  nothing  new.  It  exists  to-day  in  Florida,  in 
Iowa,  in  Louisana,  in  New  Hampshire,  in  North  Carolina,  in  Minnesota,  in  Tennessee 
and  in  Texas.  It  has  never  been  used  there  to  abuse  the  roads.  The  exact  confines, 
limitations  and  restrictions  of  that  power  have  been  well-settled  and  well-defined.  It 
is  no  new  venture  or  departure  on  our  part,  but  it  is  following  in  well-tried  lines  in 
other  States,  the  prosperity  of  whose  people  and  whose  railroads  have  been  shov-n  to 
you  by  the  facts  and  figures  which  I  have  read. 

Some  one  says  we  ought  not  to  go  into  the  Constitution  to  fix  this  matter.  It  is 
essential,  gentlemen,  if  we  want  to  have  a  perfect  department  to  accomplish  what  we 
want,  that  it  should  be  constitutional,  and  for  this  reason;  we  want  to  give  this  tribunal 
the  power  to  enforce  its  own  judgment,  which  is  absolutely  essential  if  it  is  to  be 
effectual,  subject,  as  I  have  told  you,  to  appeal;  and  it  takes  a  constitutional  provision 
to  give  it  the  powers  of.  a  court.  If  we  wish  to  give  them  the  right  to  prescribe  rates 
and  to  make  rules  and  regulations,  subject  to  the  restraints  and  safeguards  I  hava 
mentioned,  it  might  be  held — I  do  not  say  it  certainly  would  be — ^that  it  was  an  invasion 
of  the  legislative  department  of  the  government  which  the  General  Assembly  could 
not  delegate;  just  as  in  the  case  of  the  local  option  matters,  referred  to  by  my  distin- 
guished friend  who  spoke  on  yesterday,  it  was  held  that  the  local  option  statutes  were 
wrong,  in  that  they  were  an  endeavor  by  the  General  Assembly  to  delegate  its  power. 
To  prevent  the  possibility  of  such  a  question  arising,  we  have  put  into  the  Consti- 
tution the  provision  that  the  commission  shall  have  legislative  powers  so  far  as  fixing 
rates  and  prescribing  rules  and  regulations  are  concerned,  and  that  it  shall  have  judi- 
cial power  so  far  as  enforcing  its  own  judgements  is  concerned:  and  that,  in  reference 
to  both  of  these  powers,  it  shall  have  both  the  courts  and  the  General  Assembly  to 
guard  it  in  the  way  of  an  appeal,  and  as  superior  and  paramount  throughotit. 

This  provision  goes  a  good  deal  into  what  is  unquestionably  legislative  detail,  and 
your  committee  thought  it  best  to  do  that  for  this  reason;  we  thought  it  probable  that 
no  Legislature  could  have  in  their  minds  as  clear  a  conception  of  how  this  institution 
was  intended  to  work  as  the  body  which  provided  it,  which  constituted  it  and  which 
built  it  up;  just  as  the  machinist  who  puts  in  place  a  new  piece  of  machinery,  puts  it 
into  working  order  before  he  leaves,  and  then  turns  it  over  to  the  master  who  is  to 
continue  its  use.  Y^e  did  not  think  that  any  Legislature  could  carry  out  the  original 
details  in  the  manner  we  conceived  they  should  be  carried  out,  as  well  as  we,  ourselves, 
could.  "When  we  once  put  it  in  working  order;  when  we  show,  in  the  way  we  have 
done,  how  this  instittition  is  intended  to  work;  then  the  General  Assembly  can  take 
charge  of  it  under  suitable  restraints  and  provisions,  can  enlarge  its  scope,  can  modify 
-and  improve  it,  from  time  to  time,  as  it  thinks  proper.  We  recognize  this  further 
thing,  gentlemen,  that  if  this  institution  could  not  come  into  effectual  existence  without 
first  obtaining  legislative  sanction,  then,  :udging  the  future  by  the  past,  it  was  abso- 
lutely necessary  that  we  should  give  it  enough  of  a  start  to  put  it  on  its  feet,  because 
of  the  power  of  the  railroads  to  prevent  adequate  legislation  to  start  it,  and  because  we 
believed  that  the  roads  would  not  have  sufficient  power  to  enact  affirmative  legislation 
to  destroy  it. 

I  take  it  that  the  people  who  are  expecting  us  to  provide  for  them  adequate  facili- 
ties, to  give  them  relief  in  the  matter  of  railroads,  not  only  want  us  to  make  and  turn 
over  the  material  out  of  which  an  institution  for  that  purpose  can  be  constructed,  but 
desire  us  to  construct  the  institution,  put  it  in  working  order,  show  how  it  can  work, 
how  it  will  work,  and  how  it  does  work,  and  then  say  to  them:  "If  you  wish  to  destroy 
it,  if  you  wish  to  amend  it,  if  you  wish  to  improve  it  or  to  enlarge  it,  we  leave  you  free 
scope.  Vre  have  made  the  machine,  we  start  it  in  working  order,  and  here  it  is  for 
you." 


21G8 


DEBATES  OF  THE  COXSTITUTIOIs'AL  COXVENTION  OP  VIRGINIA. 


We  recognize  tlie  fact  from  the  statements  made  before  us  by  the  representatives 
of  the  railroad  companies  that  whatever  they  may  say  about  leaving  this  to  the  Legis- 
lature and  the  inadvisability  of  putting  it  into  the  Constitution,  they  will  fight  it  just 
as  hard  before  the  Legislature  as  they  will  fight  it  here,  because  their  arguments  would 
apply  just  as  strongly  against  the  Legislature  establishing  an  efficient  institution  as 
they  do  to  this  Convention  establishing  such  an  institution. 

We  recognize  the  fact,  gentlemen,  that  when  the  railroads  fight  a  measure  vigor- 
ously in  the  Legislature,  it  is  a  more  or  less  hopeless  thing  to  get  it  through.  We 
recognize  the  fact  that  the  Employers'  Liability  Bill  has  been  again  and  again  and 
again  brought  up,  and  has  been  killed  with  absolute  and  hopeless  certainty.  We 
recognize  the  fact  that  the  present  railroad  commission  has  not  only  been  inefficient, 
but  its  inefficiency  has  been  pointed  out  by  the  present  railroad  commissioner,  year 
after  year,  and  he  has  argued  the  passage  of  a  law  which  will  make  it  more  effective, 
but  it  has  all  gone  for  naught.  We  recognize  the  fact  that  for  years  the  interstate 
Commerce  Commission  has  pleaded  with  and  besought  the  Congress  of  the  United 
States  to  enlarge  their  powers  so  as  to  make  them  of  some  value;  but  it  has  gone  for 
naught.  We  thought  it  not  an  unreasonable  conclusion  that  for  some  cause  or  for  some 
reason  the  same  Legislature  that  has  refused  to  render  efficient  the  present  corporation 
commission,  would  continue  to  render  inefficient,  by  lack  of  legislation,  any  other  cor- 
poration commission  we  might  provide,  unless  we  ourselves,  set  it  upon  its  feet  and 
start  it  going. 

We  also  recognize  that  in  these  details  which  involve  the  working  of  this  com- 
mission there  may  be  errors  and  mistakes;  that  practical  experience  may  show  that 
it  can  be  and  ought  to  be  improved  upon;  and  we  have  provided  that  the  very  next 
Legislature,  in  1905,  upon  the  recommendations  of  this  commission,  can  amend  any 
part  of  its  provisions  which  is  legislative  and  administrative  in  its  character,  just  as 
readily  as  they  can  amend  a  statute. 

Mr.  Thom:  Do  I  understand  the  construction  given  to  the  report  by  my  friend 
to  be  that  the  Legislature  has  the  right  to  repeal  the  powers  of  this  Commission  as  to 
rate-making? 

Mr.  Braxton:  I  cannot  answer  that  question  yes  or  no;  but  I  will  explain  myself 
to  you. 

Mr.  Thom:  I  would  like  also  to  know  to  what  extent,  in  the  article  suggested, 
you  contend  that  the  Legislature  has  the  right  to  vary  the  law,  and  whether  there  is 
any  power  in  the  Legislature  to  do  more  than  act  upon  the  suggestions  of  the  commis- 
sion itself — whether  they  have  any  initial  power. 

Mr.  Braxton:  My  understanding  of  the  matter  is  that  in  the  question  of  prescrib- 
ing rates,  charges  and  classifications,  the  power  of  this  commission,  subject  to  repeal 
and  review,  is  paramount,  and  that  the  Legislature  can  make  no  rates. 

Mr.  Thom:    And  the  Legislature  can  make  no  change  in  that  power. 

Mr.  Braxton:  They  can  make  no  change  in  the  power  so  far  as  fixing  rates  is 
concerned.  My  view  is  that  the  power  of  the  Legislature  to  fix  rates  is  a  pure  matter 
of  theory.  It  is  utterly  impossible  for  it  to  regulate  them.  It  never  did,  and  never 
can,  execute  that  power.  Therefore  we  say  that  we  will  transfer  the  theoretical  power 
to  some  body  so  constituted  that  it  can  exercise  the  power;  and,  therefore,  as  to 
the  question  of  fixing  rates  and  the  question  as  to  the  classification  of  traffic,  the  power 
given  to  the  Commission,  subject  to  review  by  the  Supreme  Court,  is  paramount.  But 
when  it  comes  to  make  any  other  rules,  regulations  or  requirements,  the  power  which 
we  confer  upon  the  commission  is.  subject  to  the  paramount  power  of  the  Legislature. 
I  will  refer  my  friend  to  line  58,  page  8,  of  the  report,  where  this  language  is  used: 

The  authority  of  said  commission  (subject  to  review  on  appeal  as  hereinafter  pro- 
vided) to  prescribe  rates  of  charges  and  classification  of  traffic  for  transportation  or 
transmission  companies,  shall  be  paramount;  but  its  authority  to  prescribe  any  other 
rules,  regulations  and  requirements  for  such  companies  shall  be  subject  to  the  superior 
authority  of  the  General  Assembly  to  legislate  thereon  by  general  laws. 


DEBATES  OF  THE  COX>TITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


•2169 


Mr.  Thorn:  I  imclerstand  that  clause  just  as  you  are  nov,-  explaining  it.  The 
reason  for  my  question  was  that  I  understood  your  arg-ument,  heretofore,  to  be  that 
the  scheme  of  this  report  was  to  put  the  commission  on  its  feet  in  all  respects,  and 
then  in  all  respects  to  leave  it  to  the  Legislature  to  change  as  they  might  see  fit. 
I  probably  misunderstood  your  argument  in  that  regard. 

Mr.  Braxton:  That  is  not  what  I  intended  to  say.  I  do  not  Kno\Y  ^Yhethe^  my 
friend  misunderstood  me  or  Ys-hether  I  expressed  myself  awkwardly.  I  am  glad  he 
called  my  attention  to  it,  so  as  to  prevent  any  misunderstanding. 

In  reference  to  the  matter  that  my  friend  refers  to,  I  desire  to  say  that,  so  far  as 
the  legislative  and  administrative  features  of  this  report  are  concerned,  beginning  with 
sub-section  D,  and  including  E,  F.  G,  H,  I,  and  K,  the  next  Legislature,  and  any  one 
after  that,  is  given  the  power,  upon  the  recommendation  of  the  commission,  to  make 
any  amendment  of  the  commission,  to  make  any  amendment  to  that  part  of  the  section, 
which  is  purely  administrative  and  a  matter  of  detail,  they  may  devise. 

Mr.  Thom:    Suppose  the  commission  refuses  to  make  recommendations? 

Mr.  Braxton:  I  was  just  coming  to  the  very  point  about  ^Yhich  my  friend  asks  me. 
Someone  may  ask,  " Why 'not  leave  it  absolutely  to  the  Legislature?''  AYe  think  that 
it  is  not  best  to  do  so  for  this  reason:  The  power  to  amend  the  Constitution,  even  in 
such  details  as  this,  is  an  unusual  thing  to  give  to  the  Legislature,  although  it  is  some- 
times given  to  them.  We  do  not  wish  to  put  into  the  hand  of  the  ordinary  Legislature 
the  power  to  make  an  enactment  which  will  emasculate  this  institution.  We 
think  that  if  the  proposed  amendments  are  intended  to  make  the  com- 
mission more  efficient,  the  commission  will  certainly  recommend  them.  If  it  is 
anything  tending  to  make  this  body  a  better  body  and  a  more  efficient  body,  one  that 
"Will  serve  the  people  better,  we  believe  that  we  can  safely  rely  upon  the  commission 
to  recommend  it.  If  the  commission's  recommendation  is  one  that  would  unduly 
aggrandize  their  power,  the  Legislature  will  not  enact  it.  On  the  other  hand  if  the 
proposed  amendment  of  the  Legislature  is  one  that  Y'ould  unduly  Y'eaken  their  power, 
the  commission  would  not  agree  to  it.  We  leave  them  the  ordinary  method  of  amending 
the  Constitution,  but  we  say  that  as  to  this  particular  part,  which  is  detail  and  adminis- 
trative, the  Legislature  can  amend  it  at  any  time  just  as  readily  as  they  can  amend  a 
statute.  We  thought  it  not  unreasonable  to  conclude  that  if  the  amendment  was  really 
desirable,  in  the  interest  of  the  public  welfare,  both  the  commission  and  the  Legisla- 
ttire  would  agree  upon  it. 

A  few  words  more,  Mr.  Chairman,  and  I  will  conclude  my  remarks.  This  com- 
mittee, in  all  they  have  done,  have  not  been  actuated  by  any  feeling  of  hostility 
towards  the  railroad  interests.  We  have  all  recognized  that  the  railroads  are  the 
greatest  civilizers  in  the  history  of  the  world.  We  have  all  recognized  the  great  and 
inestimable  good  that  they  are  to  communities.  We  think  it  is  just  as  unreasonable 
to  say  we  are  actuated  by  feelings  of  hostility  to  them,  because  we  Avish  to  have  laws 
and  rules  to  regulate  and  control  them,  as  it  would  be  to  say  that  we  are  hostile  to  the 
human  race  because  vre  want  to  make  laws  and  rules  to  regulate  and  control  the  human 
race.  We  recognize  that  these  great  powers  of  transportation  are,  like  fire  and  water, 
most  excellent  servants,  but  the  most  destructive  and  unreasonable  masters.  We 
think  that  as  long  as  they  are  reasonably  controlled  they  will  prove  of  inestimable 
benefit  to  the  country;  but  that  if  turned  loose,  uith  a  free  hand,  they  will  do  what 
men  have  done  when  they  were  entrusted  with  uncontroliable  power  and  authority, 
they  will  abuse  it.  I  think  this  is  no  reflection  on  the  men  who  operate  them.  It  is 
only  saying  that  they  are  human  beings  like  other  men.  I  say  to  you  that  few  potent- 
ates on  this  earth — and  I  will  challenge  any  man  to  successfully  contradict  it — that 
few  potentates,  including  the  Czar  of  Rtissia,  have  as  great  power  over  the  country 
and  over  the  people  as  J.  Fierpont  Morgan  has  in  this  country  to-day.  I  say  that 
that  power  is  not  to  be  destroyed,  but  that  it  should  be  regulated  and  controlled  by 
law;  by  just  law,  by  reasonable  law,  by  fair  law,  but  by  lavr.  and  not  by  caprice  or 
arbitrary  will. 

3. ST — Const.  Deb. 


2170 


DEBATES  OF  THE  COXSTITUTIOXAL  CO^sTYENTIOIST  OE  VIRGINIA. 


We  frequently  deceive  ourselves  by  reading  about  the  great  wealth  of  the  country. 
I  once  heard  a  wag  say  that  he  and  John  D.  Rockefeller  were  the  richest  pair  of  men. 
m  the  United  States;  that  Rockefeller  was  supposed  to  be  worth  a  thousand  million,  and 
he  was  worth  ten  cents,  but  the  combination  was  very  strong.  The  aggregate  wealth 
of  the  country  is  not,  by  any  means,  a  proper  indication  as  to  the  reasonable  distribu- 
tion of  that  Avealth.  I  wasi  shocked  and  horrified,  not  long  since,  in  reading  the  report 
of  a  Mr.  Roundtree,  who  was  appointed  by  the  British  Government  to  investigate  the 
conditions  of  wealth  and  poverty  existing  in  England.  He  v/as  given  large  means  and 
a  larger  number  of  assistants,  almost  equal  to  the  taking  of  the  census,  to  ascertain  the 
extent  of  poverty  in  England — England,  which  is  recognized  as  the  richest  nation  upon 
earth,  the  creditor  nation  of  all  others.  It  will  shock  you  when  I  tell  you  that  the 
report  of  that  man,  recognized  as  accurate,  was  that  between  twenty-five  and  thirty 
per  cent,  of  the  population  of  that  country  were  absolute  paupers.  I  do  not  mean  poor 
men,  I  mean  paupers,  that  were  not  earning  the  absolute  necessaries  to  support  life. 

Gentlemen,  I  say  that  if  we  go  ahead  as  we  are,  and  turn  loose  all  of  these  un- 
restrained and  immense  powers  to  sap  the  vitality  of  our  life  and  to  draw  in  wealth 
wherever  they  choose,  to  tax  the  people  ad  libitum,  and  to  charge  as  much  as  the 
traffic  will  stand,  they  will  bear  us  down  until  our  backs  are  about  to  break.  If  we 
allow  them  to  gO'  on  unrestrained,  and  undertake  to  satisfy  ourselves  by  a  chuckle  over 
the  report  of  the  aggregate  wealth  of  this  country,  where  some  men  are  worth  thousands 
of  millions  of  dollars,  we  will  find  ourselves,  in  the  course  of  time,  in  the  condition 
that  England  is  to-day,  the  richest  nation  on  earth,  possibly,  but  with  the  largest  prO" 
portion  of  helpless  paupers.  How  can  we  stop  that?  By  acting  like  reasonable  men, 
and  by  imposing  reasonable  restraints.  Not  by  doing  anything  wild  or  destructive,  not 
by  carrying  on  a  war  against  capital;  but  by  saying  to  these  men,  "Yon  have  been  given 
by  the  State  these  immense  powers,  and  the  State  will  regulate  and  control  them, 
because  they  are  powers  too  great  to  be  entrusted  to  any  one  man  or  any  set  of  men 
on  this  earth,  not  subject  to  governmental  control."  Do  not  let  us  manufacture  some- 
thing here  that  is  too  weak  to  accomplish  anything  when  we  are  undertaking  to  treat 
these  great  corporations,  these  great  lions  of  commerce.  Do  not  let  us  give  them 
anything  like  the  minority  report,  a  dose  of  catnip  tea.  Let  us  give  them  some  medicine 
that  will  do  them  good,  not  medicine  that  will  do  them  harm,  but  medicine  strong 
enough  to  act  upon  them,  and  to  make  them  feel  the  power  of  the  hand  of  government — 
something  that  will  make  them  recognize  the  fact  that,  big  as  they  are,  they  too  are 
subject  to  the  rules  of  civilized  government  and  to  the  restraints  that  other  men  are. 
Let  us  give  them  something  which  will  make  them  recognize  that,  however  great  their 
powers  may  be,  the  State  is  still  greater;  that  the  State  will  ever  act  to  regulate  those 
powers  she  has  constructed,  which  she  has  donated;  and  will  see  to  it  that  they  doi 
not  injure,  and  are  not  turned  against,  the  people  for  whose  protection  the  government 
was  brought  into  existence. 

The  railroads  say  they  regret  thi,&  because  it  will  bring  them  into  politics.  God 
save  the  mark.  When  did  they  get  tired  of  politics?  The  railroads  afraid  of  politics? 
I  ask  you  if  there  has  been  a  judge  elected  in  this  State,  if  there  has  been  a  legislature 
elected  and  in  session,  if  there  has  been  a  campaign  fought  out,  in  which  you  do  not 
see  the  hand  of  the  railroad?  In  every  bit  of  legislation  done  or  contemplated 
"Charley  was  at  the  cat  hole."  They  come  now  and  say  they  fear  they  will  be  drawn 
into  politics.  I  say  the  railroads  will  have  less  occasion  to  be  in  politics  if  you  adopt 
the  reasonable  and  proper  restrictions  which  we  propose,  than  they  ever  have  had 
before.  I  say  that  instead  of  maintaining  a  lobby  to  overlook  our  General  Assembly 
and  influence  it  for  their  good,  they  will  have  to  contend  with  a  body  of  as  able  and 
high-minded  men  as  this  State  can  produce,  from  whose  opinions  and  decisions,  either 
for  or  against  them,  there  is  an  appeal  to  the  Supreme  Court  of  this  State.  If  it  be 
true,  as  they  have  threatened,  that  they  will  debauch,  buy  and  control  that  body,  I  say 
the  sooner  we  know  it  the  better  it  is  for  us.  But  even  if  they  do,  will  we^  be  any 
worse  off  in  the  hands  of  the  commissioners  than  we  will  be  if  we  are  in  their  hands 


DEBATES  OF  THE  COX^TITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


5iri 


and  at  th^ir  mercy  to^  fix  the  rates  themselves  without  saying  "by  your  leave"  to 
anyone?  I  say  that  if  they  do  buy,  and  do  control,  and  do  debauch  this  commission, 
the  commission  can  be  no  more  partial  to  them  than  they  are  to  themselves;  and,  at 
least — aside  from  the  shame  and  degradation  that  vrill  overwhelm  us,  in  the  knowledge 
that  our  highest  tribunals  are  bought  up — we  will,  in  a  material  matter,  and  so  far  as 
rates  are  concerned,  be  no  worse  off  than  we  are  to-day  in  the  hands  of  the  people  who 
threaten  to  buy  them. 

The  people  of  this  Commonwealth  have  long  looked  for,  and  prayed  for,  this  time. 
I  say  that  all  of  the  people  are  here,  their  hearts  are  here,  and  their  prayers  are  with 
us.  in  the  hope  that  they  vnuTI  get  now  what  they  have  never  been  able  to  get  before, 
and  what,  if  they  lose  now,  they  will  never  get  again,  and  that  is  an  affective,  a  reas- 
onable, a  just  and  a  fair  corporation  commission,  capable  of  executing  those  powers 
which  the  State  has  given  for  the  protection  of  its  citizens.  Every  board 
of  trade  in  the  State  of  Virginia,  as  far  as  I  know,  has  earnestly  endorsed 
this  report,  and  besought  this  Convention  to  adopt  it.  Tliere  may  be  some 
few  exceptions;  btit  so  far  as  I  know,  the  entire  press  of  the  State,  outside  of  the 
city  of  Richmond,  is  in  favor  of  it.  You,  gentlemen,  are  to  judge  for  yourselves  how 
much  your  own  private  constituents  at  home  favor  it,  are  looking  for  it,  and  hoping 
for  it.  and  praying  for  it.  I  say  to-  yoti  now,  that  we  have  joined  issue  on  this  question 
once  for  all,  as  to  whether  the  people  or  the  railroads  will  run  the  State  of  Virginia. 
If  we  fail  in  this  fight  do  not  think  it  is  going  to  be  carried  on  in  the  General  Assembly. 
The  fact  that  we  have  failed  here  will  be  used  as  the  greatest  argument  in  the  General 
Assembly  why  it  should  not  be  adopted  there;  because  the  great  Constitutional  Conven- 
tion, in  its  wisdom,  after  thinking  over  it,  and  working  over  it,  solemnly  concluded  that 
it  was  wrong  and  ought  not  to  be  done.  Do  not  lay  that  "flattering  unction  to  your 
soul;"  btit  recognize  the  fact  that  if  this  fight,  which  is  now  joined  with  the  railroads, 
is  lost,  neither  you  nor  I  will  see  the  day  when  the  victory  will  be  gained.  I  say,  do 
not  disappoint  the  people  in  this  matter,  do  not,  when  they  have  "asked  for  bread  give 
them  a  stone."  Let  us  not  turn  over  to  them  a  play-thing.  Let  us  not  give  them  some- 
thing that  is  fair  to  look  at  but  that  means  nothing.  Let  us  not  give  them  a  com- 
mission authorized  only  to  recommend  and  report  to  this  man  and  that  man,  and  then 
^o  to  the  courts  and  ask  the  courts  to  do  something.  Let  us  give  them  a  commission 
conservative  and  reasonable,  as  we  have  provided  for  here,  having  the  right  to  look 
into  these  matters  and  decide  them  according  to  the  rules  of  reason  and  justice,  between 
man  and  man;  and  when  it  has  come  to  its  decision,  with  the  authority  of  this  State 
behind  it,  to  say  to  these  people:  "You  must  appeal  from  it  or  obey  it.  "You  shall 
not  stand  here  and  defy  us."  Let  us  go  into  this  fight,  gentlemen,  with  that  impressed 
upon  us.  Let  us  stand  up  to  it.  Let  us  determine,  once  for  all,  whether  this  State  can 
have  this  Constitutional  provision.  Let  us  stand  by  the  result  of  it  and  may  God  save 
the  right.    (Great  Applause.) 

On  Motion  of  Mr.  VTlliam  A.  Anderson  the  Committee  rose  and  the  President 
resumed  the  chair. 

On  motion  of  Mr.  Eggleston  the  Convention  adjourned  until  to-morrow,  Wednesday, 
February  5,  1902,  at  10  o'clock  A.  M. 

WEDNESDAY.  February  5  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  By  Rev.  Robert  Strange,  D.  D. 

'Mv.  Orr  proposed  a  resolution  relating  to  the  Elective  Franchise. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
IMr.  Keezell  in  the  chair. 

Mr.  Kunton:  Mr.  Chairman,  it  is  my  purpose  to  present  the  views  of  the  minority 
of  the  Committee  on  Corporations.    The  minority  report  deals  exclusively  with  those 


2172 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


articles  proposed  by  the  Committee  on  Corporations  dealing  with  transportation  and 
transmission  companies  There  are  some  features  of  the  general  article  as  to  corpora- 
tions to  which  I  personally,  and  I  believe  the  minority  of  the  committee,  have  some 
objections.  These  articles  it  was  deemed  wise  to  leave  for  amendment  upon  the  floor 
of  the  Convention. 

The  minority  of  the  committee  has  dealt  entirely  with  those  articles,  as  I  say  which 
relate  to  transportation  and  transmission  companies.  There  is  one  article  referring 
especially  to  transportation  companies,  as  to  which  I  desire  to  state  the  position  of 
the  minority  of  the  committee,  and  that  is  as  to  the  article  popularly  known  as  the 
employers'  liability  bill.  For  myself  I  will  say  that  I  have  always  favored  a  reasonable 
employers'  liability  bill.  It  is  true  that  when  both  parties,  composing  all  the  people  of 
this  Commonwealth,  had  acquiesced  in  an  employers'  liability  bill,  and  when  it  was 
believed  at  least  that  the  railroads  had  withdra^vn  their  opposition  to  the  measure, 
I  did  not  deem  it  wise  that  it  should  go  into  the  Constitution,  believing  that  the  General 
Assembly  itself  would  pass  a  reasonable  bill  regulating  that  important  matter. 

There  are  some  few  sections  in  no  wise  affecting  the  general  principle  of  this 
section  which  do  not  meet  my  approval,  and  which  I  will  seek  to^  reach  by  amendment 
upon  the  floor.  Therefore,  in  this  argument  I  shall  confine  myself  to  the  article  of  the 
committee  with  reference  to  transporation  and  transmission  companies. 

Mr.  Chairman  and  gentlemen  of  the  committee,  it  seems  to^  me  there  never  was  a 
time  when  conservative  Virginians  should  proceed  more  carefully,  more  conservatively 
and  with  more  deliberation  upon  the  consideration  of  any  matter  effecting  its  material 
prosperity.  We  all  know  that  the  time  has  been  upon  us  for  some  years  when  it  seemed 
that  Virginia  was  entering  upon  a  period  of  prosperity  and  of  development.  It  has 
seemed  that  the  prejudice  of  capital  to  come  south  of  the  Potomac  and  to  be  invested 
in  enterprises  in  the  South  was  passing  away,  and  it  is  of  the  first  importance  that  this 
body  should  do  nothing  to  dispel  that  healthy  sentiment;  for  it  is  known  of  us  all  that 
the  resources  of  Virginia  consist  of  the  intelligence  of  its  people,  of  its  labor  and  of  its 
undeveloped  natural  resources.  It  is  the  need  of  this  State  that  capital,  foreign  capital, 
should  come  to  us  to  develop  these  resources. 

We  all  know  that  capital  is  the  most  timid  thing  on  earth.  We  who  are  older 
know  that  the  time  was,  until  the  plethora  of  money  that  has  come  in  the  last  few  years, 
when  there  was  a  prejudice  against  even  lending  money  in  the  State  of  Virginia  on 
exceptional  security,  because  of  some  apprehension  as  to  the  efficiency  of  the  collection 
laws  of  the  State,  and  that  a  great  evil,  a  great  burden  and  hardship  was  thereby  Im- 
posed upon  the  people  of  Virginia,  because  of  their  inability  to  borrow  money  to  develop 
its  natural  resources. 

I  say  that  the  same  danger  exists  to-day  that  we  may  create  the  impression  upon 
capital  that,  instead  of  coming  to  a  friendly  people,  where  there  is  at  least  a  just  senti- 
ment, that  it  may  come  to  a  hostile  people;  that  it  may  come  where  it  will  not  be 
fairly  treated  and  fairly  dealt  with;  that  it  may  come  to  a  State  where  oppressive 
laws  and  legislation  may  be  apprehended.  The  result  of  that  will  be  to  drive  capital 
from  this  old  Commonwealth,  in  whose  destinies  we  are  so  interested,  each  and  every 
one  of  us,  and  the  spirit  of  progress,  the  spirit  of  industrial  development  that  is  now 
upon  us  may  be  retarded  or  may  be  stopped  by  unwise  action  in  this  most  important 
respect. 

I  say  those  are  the  general  principles  that  we  must  all  bear  in  mind  in  the  considera- 
tion of  this  great  question. 

Let  us  consider  for  a  moment  the  issues  with  which  we  are  faced.  It  is  proposed 
to  place  in  the  Constitution  of  conservative  Virginia — a  State  that  has  heretofore  been 
a  leader  in  thought,  a  leader  in  conservatism,  a  leader  in  statesmanship — into  its  organic 
law,  a  principle  and  a  measure  that  exists  in  the  constitutions  of  but  two  States  in 
this  Union.  Remarkable  indeed  must  be  the  conditions  which  justify  the  expectation 
that  this  State  will  follow  such  a  course.    Do  those  conditions  exist?    Let  us  see. 


DEBATES  OE  TEIE  COXSTITETIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


I  trust  that  I  am  too  much  of  a  lawyer  to  dispute  the  proposition  that  the  Govern- 
ment has  the  right  to  manage  and  to  control  public  corporations,  and  that  the  only 
limitation  upon  that  power  is  when  it  becomes  confiscation.  There  is  no  difference 
between  myself  and  my  learned  friend  from  Augusta  (]\Ir.  Braxton j  upon  that  proposi- 
tion of  lavv-.  As  to  the  Vvusdcm  of  that  course  I  desire  to  call  the  attention  of  the  com- 
mittee, I  lay  down  this  broad  proposition  that  while  that  authority  and  power  is  con- 
ceded, it  is  unwise  for  the  Commonwealth  of  Virginia  to  undertake  the  management 
and  the  control  of  these  quasi  public  corporations. 

I  recognize,  however,  another  principle,  viz.,  that  it  is  right  and  proper  that  the 
State  should  stipervise  and  regulate  them.  I  concede  the  power  to  manage  and 
control.  I  question  the  wisdom  of  asstiming  the  right  to  manage  and  control.  I  rec- 
ognize the  power,  and  the  wisdom  of  supervision  and  of  regulation  by  the  State. 

I  come  now  to  consider  whether  there  is  such  a  condition  of  affairs  in  Virginia, 
that  the  State  should  assume  the  management  and  the  control  of  these  quasi  public 
corporations.  And  in  order  to  justify  that,  the  reasons  for  it  must  be  of  the  strongest 
kind  and  of  the  most  compelling  character.  They  must  be  two-fold;  first,  there  must  be 
such  conditions,  such  conduct  upon  the  part  of  the  transpoTtation  companies  of  Vir- 
ginia as  to  demand  this  radical  departure  from  precedent — a  departure  taken  by  only 
two  States  of  the  Union  in  their  fundamental  law.  In  the  second  place,  in  order  to 
justify  such  a  departure  from  precedent,  there  must  have  been  such  a  failure  upon  the 
part  of  the  legislative  branch  of  its  government  to  give  super^'ision  and  regulation, 
as  to  justify  placing  this  dangerous  experiment  in  the  fundamental  law  of  our  land. 
Because,  gentlemen  of  the  Committee,  there  is  no  consensus  jDf  opinion  as  to  the  wise 
method  with  which  to  deal  with  these  matters.  This  is  a  prohlem  with  which  every 
State  in  this  Union  is  confronted;  it  is  a  problem  that  has  been  dealt  with  by  no  two 
States  in  indentically  the  same  manner.  It  is  in  its  experimental  stage.  VTiat  will 
be  the  conclusion  of  the  wisdom  of  years  as  to  the  proper  and  wise  method  of  dealing 
with  it,  I  say  is  too  experimental  to  be  placed  in  a  constitution. 

Now,  as  to  the  necessity  for  this  radical  departure  from  precedent,  the  necessity 
of  Virginia  taking  the  management  and  control  of  its  corporations  out  of  the  hands  of 
the  corporations  themselves,  and  the  State  assuming  their  management.  The  logical 
consequence  of  that  would  be  to  divorce  the  ownership  and  the  management,  and  to 
give  to  the  commission  all  the  powers  of  presidents  and  boards  of  directors  directing 
the  policy  of  these  great  corporations,  while  you  take  from  the  State  the  responsibility 
for  failure.  You  give  to  them  the  power  +0  destroy  these  great  agencies  of  develop- 
ment. I  say  the  natural  and  logical  consequence  of  that  would  be  that  which  I  believe 
is  most  abhorred  by  the  enlightened  democratic  sentiment  in  this  land,  the  govern- 
ment, or.  in  this  case,  the  State  ownership  of  the  railroads. 

I  come  to  the  conditions  in  the  State  of  Virginia.  I  want  to  deal  with  the  concrete 
facts  with  which  this  body  is  confronted,  with  which  Virginians  have  to  deal,  and  ask 
whether  the  railroads  of  Virginia  have  been  guilty  of  anj'  such  conduct  as  to  demand  at 
your  hands  this  drastic  and  radical  measure.  Far  be  it  from  me  to  maintain  that  the 
railroads  of  this  State  or  of  this  country,  do  nt  wrong.  I  believe  that  from  their 
publicity  and  the  fact  that  there  is  this  possibility  of  State  control  resting  over  them 
fewer  wrongs  are  done  by  them  in  proportion  to  the  amount  of  business  transacted 
than  is  done  by  individuals  conducting  similarly  large  enterprises.  Is  there  anything 
in  Virginia  to-day  to  justify  ths  proposed  article  in  the  Constitution?  Have  your  roads 
dealt  with  you  unfairly?  I  do  not  mean  that  there  may  not  be  individual  cases  of 
hardship,  some  accidental,  some,  it  may  be.  designed;  but  is  the  general  conduct  of 
the  railroads  of  the  State  of  Virginia  to-day  such  as  to  justify  any  drastic  measure  for 
their  control  and  their  management? 

I  say  it,  and  I  say  it  without  the  fear  of  successful  contradiction,  that  the  railroads 
of  Virginia  to-day  are  dealing  with  the  citizens  of  Virginia  in  as  fair,  as  equitable, 
and  as  reasonable  a  way  as  the  railroads  of  any  other  State  of  this  Union,  however 


217-i  DEBATES  OF  THE  COXSTITUTIOXAL  COXTEJfTIOX  OF  VIRGINIA. 

drastic  their  laws  may  be,  however  many  commissions  or  commissioners  they  may 
have,  and  whatever  the  local  conditions. 

I  am  going-  to  deal  with  the  rates  now  in  effect  in  the  State  of  Virginia  and  under- 
take to  demonstrate  to  this  body  that  the  people  of  Virginia  have  been  fairly  dealt 
with  by  these  transportation  companies.  I  am  not  going  to  confine  it  to  the  present,  ' 
but  I  am  going  to  compare  it  with  the  past  and  show,  that,  without  regulation,  without 
legislative  interference  and  without  commissions  to  control  and  manage  the  roads., 
rates  in  Virginia  to-day  are  lower  than  they  were  ten  years  ago;  and  lower  than  they 
are  now  in  the  boasted  State  of  Georgia,  from  which  my  friend  from  Augusta  has  taken 
his  inspiration — from  a  statute  which  he  now  seeks  to  engraft  upon  the  Constitution 
of  Virginia  for  all  time  to  come.  I  do  not  confine  it  to  Georgia,  but  I  will  compare  the 
rates  in  Virginia  with  those  in  force  in  the  State  of  North  Carolina,  the  ideal  of  my 
friend  from  the  City  of  Danville,  and  will  show  to  my  friend  that  they  are  lower  to-day 
in  Virginia  than  they  are  in  North  Carolina  with  its  railroad  commission. 

I  hold  in  my  hand  a  table  of  comparison  of  the  rates  now  charged  by  the  Chesapeake 
and  Ohio  Railway  Company,  furnished  to  me  by  Mr.  Stevens,  the  president  of  that  road. 
I  can  only  vouch  for  its  accuracy  by  the  source  from  which  it  comes.  My  personal 
acquaintance  with  this  gentleman  is  slight,  but,  from  what  I  have  learned  of  him  from 
others  in  the  city  of  Richmond,  there  is  no  man  in  its  midst  who  for  character  and 
veracity,  stands  higher. 

I  know  that  it  will  be  said  by  gentlemen  upon  the  floor  of  this  Convention  that 
these  rates  are  influenced  by  the  fact  that  the  Chespeake  and  Ohio  hauls  large  quanti- 
ties of  coal.  But  if  those  gentlemen  will  examine  these  rates  they  will  realize  that 
coal  can  be  in  but  one  single  clas,s,  and  can  therefore,  affect  the  rates  in  that  class 
alone.  I  will  say  further  that  when  this  table  was  given  to  me  I  was  advised  by  Mr. 
Stevens  that  the  rates  here  given  are  substantially  the  same  as  are  now  charged  by  all 
the  other  railroads  in  the  State  of  Virginia,  and  that  the  rates  are  practically  standard. 
The  first  table  gives  the  mileage  and  the  classes,  and  the  rates  in  cents  per  100  pounds. 
Then,  knowing  that  this  statement  as  to  the  coal  traffic  would  be  made,  and  for  the 
purpose  of  furnishing  a  more  intelligent  comparison,  the  rate  is  given  on  certain  com- 
modities, such  as  bacon,  grain,  hay,  flour,  fertilizers,  and  lumber — materials  that  are  in 
common  use  in  the  State  of  Virginia.  A  comparison  is  made  between  the  years  of 
1891  and  1901,  a  period  of  ten  years.  The  reduction  of  rates,  without  the  intervention 
of  a  railroad  commission  with  power  to  fix  rates,  has  been  as  large  as  it  has  been  in 
the  boasted  State  of  Georgia,  and  as  large  as  it  has  been  in  the  State  of  North  Carolina. 

Mr.  Withers:    Then  why  do  you  fear  a  commission? 

Mr.  Hunton:  I  will  answer  you  at  length  in  my  own  way.  Your  question  cannot 
be  answered  categorically,  and  I  shall,  therefore,  follow  the  line  of  my  own  argument, 
and  not  be  diverted  here  to  answer  that  question. 

The  next  table  is  a  comparison  of  rates  on  grain,  flour  and  hay  from  Staunton  to 
Harrisonburg,  Virginia,  and  other  southern  points  in  the  year  1891  and  the  year  1901. 
"Why  that  table  was  given  I  do  not  know,  except  as  a  personal  compliment  to  the  dis- 
tinguished chairman  of  the  Committee  on  Corporations,  and  to  the  gentleman  who  so 
gracefully  fills  the  chair  upon  this  occasion. 

The  next  table  is  a  comparison  of  the  class  and  the  commodity  rates  in  force  in 
Virginia  and  those  in  force  in  North  Carolina,  South  Carolina  and  Georgia,  in  which 
latter  State  rates  are  fixed  by  a  railroad  commission — Georgia,  the  inspiration  of  my 
friends  from  Augusta  and  the  inspiration  of  my  friend  from  Danville. 

There  is  a  note  here  which  reads: 

The  rates  for  Virginia  are  those  of  the  Chesapeake  and  Ohio  Railway,  which  are 
practically  the  same  as  other  Virginia  rates.  The  rates  shown  in  North  and  South 
Carolina  and  Georgia  apply  on  any  quantity,  while  in  Virginia  the  ra^es  shown  apply  to 
shipments  in  less  than  car-loads — the  car-load  rates  in  Virginia  would  be  fifth-class — 
■which  would  be  lower,  in  every  group,  than  the  rates  in  the  Southern  States. 


DEBATES  OE  TEIE  COXSTITUTICXAE  COXVEXTIOX  OE  TIEGIXIA. 


•21:5 


Classification:  The  rates  in  Virginia  are  governed,  for  tlie  most  part,  by  the  official 
classification.  On  this  basis  it  will  be  noticed  that  the  Virginia  rates  are  lower  on  ih^ 
following,  than  for  the  other  Southern  States  named — dry-goods,  cotton  fabrics,  boors 
and  shoes,  sugar,  molasses,  coffee,  grain  and  fiour. 

For  short  distances  the  Virginia  rates  are  a  little  higher  on  bacon  in  less  than  car- 
loads.   The  average  rates  in  Virginia  are  far  lower  than  in  any  of  the  other  State§-. 

I  want  to  call  your  attention  to  the  fact  that  these  rates  are  lower  than  in  the 
other  States  named  on  articles  Avhich  enter  into  the  dailj'  life  of  every  citizen  of  this 
Commonwealth  to  a  greater  extent,  perhaps,  than  any  other  articles  that  could  be 
named.  Dry-goods  are  lower;  cotton  fabrics  are  lower;  boots  and  shoes  are  lower; 
sugar  is  lower;  molasses  is  lower;  coffee  is  lower;  grain  and  flour  are  lower.  For 
short  distances  the  Virginia  rates  are  a  little  higher  on  bacon  in  less  than  car-load 
lots;  but  the  average  rates  in  A'irginia  are  far  lower  than  in  any  of  these  other  States. 

Now,  gentlemen  of  the  committee,  this  has  been  the  action  of  the  railroads  of 
Virginia  to  the  people  of  Virginia  to-day.  You  see  hardships.  You  see  things  that  you 
think  are  unjust,  but  as  to  how  many  of  them,  upon  thorough  investigation  and  thorough 
knowledge  of  the  facts,  would  prove  to  be  unjust,  cannot  be  estimated.  We  look  at 
it  from  our  own  point  of  view.  Ve  look  at  it  from  our  own  selfish  interest.  But  when 
you  take  the  broad  view  of  this  matter,  when  you  investigate  it,  when  you  know  what 
all  the  facts  are,  you  find  that  the  rates  in  Alrginia  to-day  are  far  lower  than  those  of 
Georgia,  North  Carolina  or  South  Carolina,  not  only  in  classes  but  on  specific  articles, 
and  especially  upon  the  articles  that  are  most  in  use  in  the  State,  such  as  dry-goods, 
flour,  grain,  bacon  and  hay.  The  rates  are  lower  here  than  they  are  in  these  other 
Southern  States  regulated  by  commissions.  Is  there  anything  very  outrageous  in  th6 
conduct  of  the  railroads  of  Virginia,  as  developed  by  these  facts? 

My  friend  from  Augusta  on  yesterday  produced  a  communication  from  the  chairman 
of  the  railroad  commission  of  Georgia  to  some  gentleman  in  Texas,  and  he  gave  a 
table  of  rates  charged  in  Georgia  and  the  wonderful  results  that  had  been  accomplished 
by  this  wonderful  Georgia  commission.  In  those  results  he  gave  four  commodities — 
bacon,  flour,  grain  and  cotton.  I  want  to  compare  the  results  in  Georgia,  from  the 
tables  produced  by  the  gentleman  from  Augusta  himself,  with  the  charges  of  the  Vir- 
ginia railroads  for  the  same  commodities;  and  although  there  has  been  no  power  to  fix 
rates  in  Virginia,  they  have  been  from  the  very  beginning  of  these  figures  down  to  and 
including  this  present  time,  cheaper  to  the  people  of  Virginia  than  in  any  one  of  these 
three  States,  with  their  tripartite  commission. 

The  table  the  gentleman  read  from  on  these  articles  gave  the  rates  for  ten,  fifty, 
one  hundred,  one  hundred  and  forty,  two  hundred  and  two  hundred  and  fifty  miles. 
Fortunately,  the  tariff  of  rates  with  which  I  had  been  supplied  dealt  with  three  of  those 
four  articles,  not  with  cotton,  because  that  is  not  largely  a  Virginia  product. 

On  bacon  for  10,  50  and  100  miles  the  charges  in  Georgia  under  the  regulations 
of  the  railroad  commission  were  identically  the  same  as  they  were  in  Virginia,  and 
there  similarity  between  them  ceases.  I  will  give  the  charges  in  cents  of  100  pounds. 
For  10  miles,  on  bacon,  Virginia,  8  cents,  Georgia  8  cents. 

For  50  miles,  Virginia,  15  cents,  Georgia  15  cents. 

For  100  miles,  Virginia  IS  cents,  Georgia  18  cents. 

Every  other  article  that  I  am  going  to  refer  to  was  lower  in  Virginia  than  in  the 
State  of  Georgia,  under  whose  benign  administration  of  these  public  corporations  the 
gentleman  has  drawn  the  inspiration  for  this  majority  report. 

VTien  it  gets  up  to  140  miles,  the  charges  in  Virginia  on  bacon  were  21  cents,  in 
Georgia  22  cents. 

For  200  miles,  in  Virginia  2-i  cents,  in  Georgia  26  cents. 

For  250  miles,in  Virginia  21  cents,  in  Georgia  30  cents,  a  difference  of  6  cents  on 
100  pounds  for  every  250  miles. 

VTien  we  come  to  flour,  the  difference  is  always  in  favor  of  the  Virginia  rates. 
For  10  miles  the  charge  in  Virginia  on  flour  is  4  cents,  in  Georgia  6. 


2176 


DEBATES  OF  THE  CO  >fSTITUTIOJsTAL  COXVEXTIOX  OF  VIIIGIXL 


For  50  miles,  in  Virginia  6  cents,  in  Georgia  10  cents. 
For  100  miles,  in  Virginia  10  cents.,  in  Georgia  15  cents. 
For  140  miles,  in  Virginia  12  cents,  in  Georgia  19  cents. 
For  200  mJles,  in  Virginia  15  cents,  in  Georgia  23.  cents. 

For  250  miles,  in  Virginia  15  cents,  in  Georgia  25  cents,  a  difference  of  10  cents  in 
every  100  pounds. 

I  come  now  to  grain,  and  find  the  same  thing  going  all  through  the  table  as  to 
that  article.  In  Virginia,  in  every  case,  the  rates  are  lower  than  as  regulated  by  the 
Corporation  Commission  of  Georgia. 

On  grain,  for  10  miles,  the  rate  in  Virginia  was  4  cents,  in  Georgia  5  cents. 

For  50  miles,  in  Virginia  6  cents,  in  Georgia  9  cents. 

For  100  ,miles,  in  Virginia  10  cents,  in  Georgia  14  cents. 

For  140  miles,  in  Virginia  12  cents,  in  Georgia  18  cents. 

For  200  mJles,  in  Virginia  15  cents,  in  Georgia  20  cents.         "  '   -  ■ 

For  250  milf>3,  in  Virginia  15  cents,  in  Georgia  23  cents. 

Is  there  anything  in  that,  gentlemen  of  this  committee,  that  would  justify  extreme, 
drastic  control  and  management  of  the  railroad  companies  of  the  State  of  Virginia. 
Is  that  not  evidence  of  fair  and  reasonable  treatment?  Is  not  that  evidence  that  the 
commercial  conditions  in  Virginia  have  done  m.ore  than  your  railroad  commission  for 
the  vaunted  State  of  Georgia? 

Mr.  Meredith:  If  it  is  true  that  in  Georgia  with  the  railroad  commission  they 
do  not  have  as  low  a  class  of  tariff  rates  as  we  do  in  Virginia  without  a  commission, 
will  you  please  account  for  it?    How  does  that  happen? 

Mr.  Hunton:  God  Almighty  knows;  I  do  not.  I  am  just  talking  about  the  effect 
of  a  commission,  and  to  show  that  it  is  absolutely  impossible  to  regulate  these  things 
by  a  commission,  and  that  it  is  ineffective  and  inefficient,  and  fails  to  accomplish  the 
purpose  for  which  it  was  designed. 

Mr.  Quarles:    May  not  the  railroads  control  the  commission? 

Mr.  Hunton:  I  do  not  know,  sir;  it  is  possible.  But  from  the  citations  from  them 
as  the  ideal  of  the  other  gentleman  from  Augusta  (Mr.  Braxton)  I  would  scarcely  sup- 
pose that  his  ideal  commission  would  be  one  that  is  run  and  governed  and  controlled 
by  the  railroads.  Surely  it  would  be  an  unfortunate  ideal  if  he  should  select  one 
that  was  owned  and  controlled  by  the  railroads,  because  you  v/ill  remember  that  the 
great  force  of  his  argum^ent,  splendid  as  it  was,  was  based  upon  the  magnificent  per- 
formances of  this  three-minute  stepper  from  the  State  of  Virginia. 

Mr.  Braxton:  In  reading  the  rates  you  have  just  read  Virginia  rates  as  compared 
with  Georgia  rates.    For  what  year  were  those  Virginia  rates  taken? 

Mr.  Hunton:  Those  Virginia  rates  were  taken  from  the  year  1901.  Your  Georgia 
rates  were  taken  frcm  the  year  1890.  I  anticipated  that  my  friend  from  Augusta 
would  ask  that  identical  question,  and  I  am  ready  to  ansiwer  it  now  as  to  a  comparison 
between  the  rates  in  Virginia  to-day  and  the  rates  for  1901  in  Georgia.  I  have  compared 
the  rates  in  Georgia  for  the  year  1890  with  the  rates  in  Virginia  for  the  year  1901. 
I  am  now  going  to  compare  them  for  the  year  1901  in  both  States  on  these  same  articles. 

The  rates  on  bacon  in  Virginia  for  1901  for  10  miles  is  8  cents  for  100  pounds;  in 
Georgia  it  is  9  cents. 

For    50  miles,  in  Virginia  it  is  13  cents,  in  Georgia  14  cents. 

For  100  miles,  in  Virginia  it  is  18  cents,  in  Georgia  20  cents. 

For  140  miles,  in  Virginia  it  is,  21  cents,  in  Georgia  24  cents. 

For  200  miles,  in  Virginia  it  is  24  cents,  in  Georgia  30  cents. 

For  250  miles,  in  Virginia  it  is  24  cents,  in  Georgia  it  is  33  cents,  a  difference  of 
9  cents. " 

I  now  take  flour.    V^e  find  that  the  rate  on  flour  for  ten  miles  in  Virginia  in  1901 
is  4  cents,  in  Georgia  5|  cents. 

For  50  miles,  in  Virginia  6  cents,  in  Georgia  8|  cents. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIEGIXIA. 


217,7 


For  100  miles,  in  Virginia  10  cents,  in  Georgia  Hi  cents. 
For  140  miles,  in  Virginia  12  cents,  in  Georgia  13  cents. 
For  200  miles,  in  Virginia  15  cents,  in  Georgia  IGJ  cents. 
For  250  miles,  in  Virginia  15  cents,  in  Georgia  19  cents. 

I  now  take  grain,  a  commodity  in  which  tlie  great  agricultural  interest  of  Virginia 
is  greatly  interested  and  I  find  that  for  10  miles  in  Virginia  in  1901,  the  charge  on 
grain  is  4  cents,  in  Georgia  5  cents. 

For  50  miles,  in  Virginia  6  cents,  in  Georgia  8  cents. 

For  100  miles,  in  Virginia  10  cents,  in  Georgia  11  cents. 

For  140  miles,  in  Virginia  12  cents,  in  Georgia  13  cents. 

For  200  miles,  in  Virginia  15  cents,  in  Georgia  ISJ  cents. 

For  250  miles,  in  Virginia  15  cents,  in  Georgia  18  cents. 

There  is  your  boasted  Georgia  commission,  and  my  friend's  colleague  (Mr.  Quarles), 
coming  to  his  relief,  wants  to  know  if  the  railroads  may  not  own  and  control  the 
Georgia  commission,  the  ideal  of  the  other  gentleman  from  Augusta.  I  desire  to  say 
to  his  colleague  (Mr.  Quarles)  that  I  do  not  know  anything  of  the  Georgia  commission — • 

VkHiatever  may  be  the  character  of  the  Georgia  commission,  I  believe  the  natural 
conditions  will  produce  the  same  res.ult  in  Virginia  that  the  commission  is  said  to 
have  produced  in  Georgia,  and  no  other  and  no  more;  and  there  is  absolutelj-  nothing, 
so  far  as  relief  to  the  people  of  Virginia  is  concerned  from  any  burdens  they  arei 
bearing,  real  or  imaginary,  because  I  believe  these  great  corporations  are  compelled, 
from  the  conditions  in  which  they  are  placed,  to  deal  with  fairness  and  with  justice  to 
the  people  and  the  communities  through  which  they  pass.  I  believe  it  is  tHe  only  way 
that  the  railroads  can  develop  their  trade.  I  believe  if  you  make  rates  so  high,  the 
farmers  will  not  raise  the  product  unless  they  can  get  a  fair  return  from  them.  I 
believe  the  result  wherever  you  have  a  commission,  will  be  just  such  as  has  been 
described  as  to  this  Georgia  commission. 

Now,  I  will  say  that  this  is  the  strong  medicine  that  my  friend  from  Augusta  (Mr. 
Braxton)  was  going  to  administer  to  the  corporations  of  the  State  of  Virginia.  In 
Georgia,  although  it  has  had  its  commission  ever  since  1879 — I  believe  I  am  right  in 
the  year — the  rates  have  never  gotten  as  low  as  they  are  in  Virginia.  It  seems  to  me 
the  ideal  of  the  gentleman  from  Augusta  has  been  giving  catnip  tea.  If  I  were  to  go  to 
the  medical  world  to  define  the  prescription  that  my  friend  would  administer  to  the 
railroads  of  the  State  of  Virginia,  I  should  neither  describe  him  as  a  physician  of  the 
Allopathic  or  the  Homeopathic  class,  but  I  would  denominate  him  as  an  herb  doctor; 
or  if  I  were  to  go  to  the  medico-religous  world,  I  would  call  him  a  preacher  of  the 
faith-cure  persuasion;  and  when  I  look  to  this  remedy,  this  catnip  tea,  that  he  is 
administering  to  the  corporations  of  Virginia,  I  would  incline  to  the  latter  classification 
rather  than  the  former,  because  I  believe  the  herb  doctor  is  a  reasonable  charger, 
and  that  the  catmp  tea  doses  of  the  herb  doctor  at  least  cost  but  little;  but  the  faith- 
cure  preacher  I  have  always  understood  lives  on  the  fat  of  the  land  and  on  the  con- 
tributions made  to  him  by  those  to  whom  he  is  administering  his  very  effective 
remedies. 

This  remedy  that  my  friend  from  Augusta  would  propose  to  the  people  of  Virginia 
In  a  Convention  assembled  to  reduce  expenses  and  diminish  the  number  of  ofiice- 
holders,  who  have  been  thrust  upon  us  by  the  Underwood  Constitution,  creates  five  new 
constitutional  offices,  three  of  them  with  a  salary  of  $3,000  each,  and  a  clerk  and  a 
bailiff,  and  such  additional  officers  as  the  General  Assembly  may  prescribe,  with  the 
power  to  summon  witnesses  from  all  over  the  State  of  Virginia.  If  v/ith  this  remedy 
the  people  of  Virginia  escape  with  charges  of  25,000  per  annum,  in  my  judgment,  they 
will  be  fortunate  indeed,  and  this  expenditure  will  give  no  practical  remedy  or  relief 
to  any  of  the  burdens,  whether  real  or  imaginary,  from  which  the  people  of  to-day  are 
suffering.  I  say  it  is  the  most  expensive  dose  of  catnip  tea  that  I  ever  knew  of  being 
administered  by  any  herb  doctor. 


2178 


DEB^iTES  OF  THE  COXSTITUTIOXAL  COXVENTIOJT  OF  VIRGINIA. 


Now  I  say,  gentlemen,  is.  there  anything  in  this  record  of  the  railroads  of  Virginia 
that  should  lead  to  such  drastic  remedies?  Has  not  their  conduct  been  fair?  Has  it 
-not  been  reasonable  in  every  respect  and  in  every  way,  manner,  shape  and  form?  Far 
be  it  from  me  to  deny  there  are  individual  cases  of  Vv^rong,  possibly  of  intention,  in 
some  cases,  of  accident  in  more.  1  say,  however,  that  in  the  cases  of  apparent  wrong 
and  of  apparent  injustice,  it  would  frequently,  with  a  full  knowledge  of  the  factsi,  be 
understood  and  realized  and  recognized  to  be  of  no  such  character,  and  the  justice  of 
it  would  be  recognized  by  the  men  interested,  if  they  knew  all  the  facts  and  were  able 
to  put  themselves  in  the  position  of  those  who  were  dealing  with  this  great  subject; 
because  it  is  the  biggest  subject,  gentlemen  of  the  Committee,  of  a  financial  and  a 
practical  character,  with  which  this  body  has  been  called  upon  to  deal.  I  wish  to  God 
I  had  the  power  to  understand  and  comprehend  it  in  its  full  force  and  affect  and  mean- 
ing, and  to  intelligently  and  fully  present  those  views  to  this  body  because  I  realize 
and  recognize  that  I  am  not  the  master  of  the  subject  which  I  am  discussing  before 
you. 

"  Ah,  one  other  thing,"  says  my  friend  from  Augusta,  "  in  behalf  of  this  Georgia 
commission,  and  if  there  were  nothing  else  to  endorse  that  commission,  it  would  to 
my  mind  forever  establish  its  penetration.  The  chairman  says  it  is  desirable  because 
all  the  candidates  in  Georgia  want  it." 

Well,  gentlemen,  it  seems  to  me  if  we  had  fewer  candidates,  present  or  future, 
this  matter  would  probably  be  considered  in  a  different  light,  and  the  inclinations  of 
men's  minds  would  be  less  strong  and  they  would  be  better  prepared  to  hear  in  an 
impartial  way  both  sides  of  this  question. 

I  recognize  that  it  is  not  popular  to  advocate  even  justice  and  fairness  to  railroads. 
I  recognize  the  popular  cry  is  that  of  opposition  and  hostility.  I  recognize  that  the 
man  who  seeks  or  who  expects  to  seek  office  thinks  that  that  is  the  open  sesame  that 
puts  upon  his  brow  the  crown  of  political  honor;  but  I  ask  the  members  of  the  Conven- 
tion to  consider  this  question  as  becomes  and  befits  them  as  members  of  a  Constitu- 
tional Convention  of  the  great  State  of  Virginia. 

Does  the  course  of  the  railroads  justify  drastic,  hostile  regulations,  going  farther 
than  any  State  in  the  Union  has  gone,  and  putting  them  in  our  Constitution  when  there 
are  but  two  States  that  have  done  it?  Is  that  reasonable?  It  is  proper?  Is  it  right? 
Is  it  fair?  My  friend  says  the  General  Assembly  will  do  nothing.  I  know  nothing  of 
it,  except  that  I  do  know  that  when  my  friend  was  making  the  argument  in  behalf  of 
his  commission  with  the  power  to  fix  rates,  he  dwelt  upon  the  failure  of  the  General 
Assembly  to  pass  the  Employers'  Liability  Bill,  and  said  nothing  as  to  any  failure  on 
the  part  of  the  General  Assembly  to  pass  a  proper  law  supervising  and  regulating  these 
railroads,  although  the  law  upon  the  statute  books  was  passed  in  the  year  1892. 

These  are  the  general  conditions,  my  friends,  with  which  we  are  surrounded.  These 
are  the  general  conditions  that  you  must  face  and  upon  which  you  must  reach  your 
conclusions.  Now  let  us  look  for  a  moment,  having  considered  these  general  condi- 
tions, at  something  of  the  character  of  the  provisions  of  the  article  offered  by  the 
majority  of  the  committee.    In  the  first  place. 

Mr.  Withers:  In  this  table  of  rates  here,  which  I  have  not,  of  course,  had  a 
chance  to  examine,  will  the  gentleman  give  the  rate  on  a  carload  lot  of  hay,  wheat  or 
flour  from  Staunton,  on  the  Chesapeake  and  Ohio  Railway,  to  Danville? 

Mr.  Hunton:  I  do  not  think  I  can,  sir.  I  do  not  think  the  table  shows  it.  It  shows 
the  rate  on  hay  from  Staunton  to  a  number  of  points,  but  I  am  sure  it  does  not  show 
it  to  Danville. 

Mr.  Withers:  I  just  wanted  to  ask  the  question.  You  might  be  able  to  give  it 
in  the  morning  and  compare  that  rate  with  the  rat^  on  a  similar  carload  lot  of  hay  • 

Mr.  Hunton:  I  am  not  willing  to  yield  for  the  purpose  of  allowing  the  gentleman 
to  ask  me  to  make  comparisons  to-morrow  morning.  I  am  willing  to  yield  for  the 
purpose  of  allowing  him  to  ask  me  to  make  any  comparisons  on  the  facts  and  figures 
I  have  here  before  me. 


DEBATES  OE  THE  COXSTITUTIOXAL  C.OXVEXTIOX  OE  YIEGIXIA. 


2ir9 


Now,  as  to  the  powers  tliat  are  given  by  this  majoritv  article  against  corporations; 
and  I  vcant  to  cali  attention  for  a  moment  to  the  personnel  of  this  corporation  com- 
mittee. Seven  of  the  eleven  members  are  lawyers.  Four  of  these  lawyers  endorse 
the  majority  report.  Three  dissent  from  it.  As  to  the  other  four  members,  who  are 
not  lawyers,  for  vrhose  intelligence  and  judgment  and  integrity  of  purpose  I  have  the 
utmost  confidence  and  respect,  and  whose  effort  to .  do  nothing  that  was  imprudent, 
unwise,  or  radical,  was  as  great  in  my  judgment,  as  mine,  it  was  impossible  for  those 
members,  who  are  not  lawyers,  to  realize  the  force  and  the  effect  of  the  provisions  of 
this  majority  report;  and  I  believe  that  if  those  same  men,  with  their  desire  to  do 
nothing  to  injure  the  material  vcelfare  .of  the  State  of  Virginia,  had  been  able  to 
appreciate  the  legal  effect  of  this  report,  some  at  least  of  them  would  have  been  with 
the  minority  instead  of  with  the  majority. 

Now,  let  us  look  at  the  report  itself,  and  some  of  its  cardinal  features.  My  first 
objection  is  to  the  commission.  I  do  not  believe  that  it  is  proper  or  wise  that  questions 
should  be  submitted  to  a  court  that  is  organized  for  the  ptirpose  of  passing  upon  those 
questions.  I  believe  that  court — and  nobody  who  considers  it  can  reasonably  escape 
it — x<ill  be  composed  of  men  whose  general  position  on  these  questions  are  known. 
He  will  be  appointed  by  the  Governor,  if  this  report  is  adopted,  and  confirmed  by  the 
General  Assembly.  The  man  desiring  the  appointment  will  probably  go  upon  the 
stump  in  the  campaign,  and  his  views  be  known  and  exploited,  and  his  candidacy  may 
be  used  by  the  one  or  the  other  of  the  gubernatorial  candidates  in  order  to  further  their 
chances  of  nommation  or  to  defeat  these  of  an  opponent.  I  say  it  is  impossible  to 
organize  that  court  without  having  a  knowledge  and  a  reference  to  the  -^uews  of  the 
members  who  compose  it. 

I  go  a  step  further.  I  have  heard  a  gentleman  of  this  body  say  tliat  one  of  his 
objections  to  a  board  of  equalization  upon  the  subject  of  taxation  was  that  it  would 
he  composed  of  men  of  the  East,  who  would  be  put  upon  that  board  with  known  views 
as  to  the  matter  of  assessment  in  the  Southwest,  and  that,  while  he  would  probably  be 
willing  to  submit  to  a  court  organized  without  reference  to  its  Auews  to  pass  upon 
that  matter,  that  when  you  put  the  Southwest  in  the  hands  of  the  East,  it  was  a  court 
organized  with  knoAvn  and  fixed  views,  and  that  he  was  not  willing  to  submit  his 
people  and  his  section  to  it.  I  say  the  same,  gentlemen  of  the  committee,  of  the 
corporations  of  the  State.  I  am  not  willing  to  submit  them  to  a  court  of  known  and 
fixed  views. 

There  is  another  thing,  gentlemen  of  the  committee.  Tliis  commission  has  the 
initial  power  to  fix  rates.  It  has  the  absolute  power.  They  not  only  have  the  power 
to  correct  rates,  but  the  initial  power  to  fix  them  before  the  railroads  fix  them,  or 
before  there  is  any  complaint.  That  is  the  power  given  to  this  commission.  Then  the 
railroads  have  a  right  to  be  summoned  after  the  rates  have  been  fixed  by  the  com- 
mission, and  to  complain  of  their  injustice,  to  complain  of  the  acts  of  the  court  before 
whom  the  complaint  is  to-  be  tried.  Is  that  fair?  Is  that  right?  A  court  organized 
with  known  convictions  and  known  inclinations  and  yieldings,  and  yet  they  initially 
fix  the  rates,  and  then  your  chance  to  correct  them  before  going  to  the  Court  of 
Appeals  is  to  go  before  the  same  commission  and  to  ask  that  commission  to  correct 
its  own  rulings.    I  say  that  is  not  fair,  reasonable  or  just. 

T\Tiy,  gentlemen  of  the  committee,  we  have  dealt  with  this  subject  in  another 
phase  in  an  earlier  stage  of  our  deliberations.  The  judges  of  the  county  court,  and 
of  certain  of  the  city  courts,  I  believe,  were  permitted  to  practice  law  in  the  State 
of  Virginia.  There  have  been  complaints  about  this.  It  is  said  that  the  judge  who 
appears  as  an  advocate  to-day  cannot  be  impartial  when  he  goes  on  the  bench,  and 
that  same  question  comes  before  him  as  a  judge  to-morrow.  So  universal,  so  thoroughly 
recognized  is  that  principle,  that  this  body,  with  practical  unanimity,  put  in  its  Con- 
stitution the  provision  that  no  Alrginia  judge  should  practice  law  either  in  the 
Commonwealth  of  Virginia  or  without  it,  because  of  the  bias  that  he  would  in  that  way 
get;  and  yet  the  plan  of  the  majority  of  this  committee  gives  to  the  railroad  companies 


2180  DEBATES  OE  THE  COXSTITUTIOXAL  COXVENTIOX  OE  YIRGIXIA. 

no  chance  to  correct  this  initial  power  of  the  raih^oad  commission  in  fixing  rates  except 
to  appeal  from  "Phillip  drunk  to  Phillip  sober."  Is  that  fair?  Is  that  reasonable? 
Is  that  right?  Is  that  dealing  as  fairly  with  the  railroads  of  Virginia  as  the  railroads 
have  dealt  with  the  people  of  Virginia?  I  say  that  that  is  a  radical  objection  to  this 
commission  that  is  proposed  by  the  majority  of  the  committee  to  pass  upon  these 
questions. 

I  go  further.  I  have  recognized  the  legal  right  of  the  State  of  Virginia  to^  manage 
and  control  corporations,  as  well  as  to  supervise  and  regulate  them.  I  have  admitted 
the  wisdom  and  the  properity  of  properly  and  fairly  supervising  and  regulating.  I 
dispute  the  wisdom  of  managing  and  controlling  them.  The  majority  report  gives  to 
this  commission  the  absolute  management  and  control  of  the  railroads  in  the  State 
of  Virginia — absolute  and  complete. 

The  majority  article  gives  to  this  commission  the  absolute  management  and  con- 
trol of  the  railroads  of  the  State  of  Virginia.  It  puts  that  commission  in  the  same 
relation  to  every  railroad  in  the  State  of  Virginia  tha.t  its  president  and  board  of 
directors  now  hold.  It  takes  from  the  president  and  board  of  directors  the 
power  to  properly  manage  the  road  and  the  power  to  even  inaugurate  a 
a  policy  for  the  road.  It  takes  away  fro<m  them  the  power  to  adopt  a 
policy  to  produce  earnings  for  the  road,  and  leaves  it  nothing  except  the 
power  to  buy  supplies  and  to  carry  out  the  orders  of  its  masters,  ivly  friend  says  that 
the  uncontrolled  power  to  fix  rates,  on  the  part  of  the  railroads,  is  unwise  with 
reference  to  the  people  of  the  State,  because  it  may  be  improperly  and  selfishly 
exercised.  What  do  you  think  of  the  power  given  to  this  commission?  The  power  to 
so  operate  the  railroads  of  this  State  as  to  ruin  and  bankrupt  your  section  of  it  and 
bring  great  prosperity  to  mine,  or  the  reverse.  It  has  the  power  to  bankrupt  one 
road  and  to  give  to  a  favorite  competitor  advantages  that  will  lead  it  to  prosperity 
and  success.  Is  there  no  danger  not  only  to  the  roads  themselves,  but  to  the  people 
of  the  Commonwealth  of  Virginia,  in  putting  such  unprecedented  power  in  the  hands  of 
any  three  men  Within  the  broad  limits  of  this  Commonwealth  however  fair,  high  and 
honorable  they  may  be?  I  say  to  you  that  the  danger  is  whether  they  will  always 
be  fair,  always  high,  and  always  honorable.  I  say  this  is  the  power  the  majority 
report  gives  to  the  railroad  commission — the  absolute  power  to  manage  and  control, 
to  fix  rates,  and  determine  the  facilities  of  transportation — to  fix  rules  and  regulations. 

Let  me  illustrate:  Suppose  my  friend  from  Riissell  has  upon  his  broad  acres  of 
fertile  land  a  mineral  of  which  he  believes  there  is  a  vast  quantity  of  great  value. 
It  does  seem  to  me  that  in  that  great  possession  of  his  in  the  Southwest  he  has  all 
that  goes  to  make  life  charming  and  happy,  and  to  make  those  returns  that  put  into 
our  pockets  the  means  of  giving  life  all  of  its  indulgences.  Suppose  he  has  a  mineral 
that  he  believes  v/ill  be  of  great  value,  which  exists  in  great  quantities  and  he  goes 
to  the  railroad  that  runs  near  him  and  says:  "I  want  you  to  build  a  spur  of  twenty 
miles  to  my  property,  so  that  you  may  get  that  mineral  and  carry  it  to  the  market. 
"The  railroad  investigates  it  and  they  believe  the  mineral  is  not  in  sufficient  quantity 
or  is  not  sufficiently  valuable  to  justify  the  building  of  the  spur,  and  they,  therefore 
decline  to  build  this  twenty  miles  of  road  in  order  to  carry  the  products  of  th© 
gentleman  from  Russell  to  the  place  he  may  direct.  He  comes  before  this  railroad 
commission  and  the  commission  says:  "You  shall  furnish  that  facility  to  the  gentle- 
man from  Russell."  Suppose  the  result  is  that  the  mineral  is  either  worthless  or  its 
quantity  is  not  sufficient.  You  have  placed  upon  this  road  a  burden  which,  if  repeated 
often  enough  would  bankrupt  it  or  any  other  road  in  the  State  of  Virginia.  I  say  that 
is  the  power  given  to  this  commission  by  the  majority  report. 

I  go  further,  gentlemen  of  the  committee.  It  is  in  the  power  of  this  commission  to 
destroy  one  railroad  and  to  build  up  another.  Let  us  take  a  case.  There  are  two 
roads  now  running  from  the  city  of  Richmond  to  the  city  of  Petersburg— the  Atlantic 
Coast  Line  and  the  Seaboard  Air  Line.  We  are  told  by  the  newspapers  that  there  is  a 
third  one,  an  electric  line  proposed.    Suppose  that  this  commission  were  determined  to 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2181 


ruin  the  business  of  the  Atlantic  Coast  Line  between  here  and  Petersburg  by  so  ar- 
ranging its  schedule  that  passengers  could  not  conveniently  get  the  advantage  of  them, 
and  give  the  advantage  of  a  popular  schedule  to  the  Seaboard  Air  Line.  Can  anybody 
doubt  that  they  have  that  power?  Suppose  this  commission,  for  its  own  sweet  purposes 
should  determine  that  neither  of  them  should  run  their  trains  on  schedules  that  were 
popular,  in  order  that  both  should  lose  the  local  traffic,  and  that  they  would  throw  it 
into  the  hands  of  the  electric  road.  I  say  they  have  that  power  given  to  them,  by  this 
article  in  the  Constitution,  which  you  cannot  change  for  a  generation.  And  the  argu- 
ment of  my  friend  from  Augusta  suggests  another  power  given  to  this  commission. 
Take  the  magnificient  new  station  built  in  the  city  of  Richmond  by  the  Chesapeake 
and  Ohio  Railway  in  recent  years.  This  report  of  the  majority  of  the  committee  gives 
to  the  commission  the  power  to  give  to  any  road  the  right  to  use  these  terminal  facilities 
upon  such  terms  as  they,  the  commission,  may  choose;  the  power  to  give  any  road  the 
right  to  take  advantage  of  the  thousands  and  thousands  of  dollars  that  have  been 
expended  by  the  Cheaspeake  and  Ohio  in  the  erection  of  that  beautiful  improvement 
to  the  capital  city  of  our  State.  These  are  the  poAvers,  and  the  possibilities  under  this 
report.  Will  they  ever  do  it?  AAlio  knows?  Who  can  tell?  The  senior  member  from 
Augusta  has  already  suggested  that  it  is  possible  this  great  Georgia  commission  is 
owned  and  controlled  by  the  railroad  companies.  It  may  or  it  may  not  be.  God  save 
Virginia  from  such  degradation.  If  this  commission  should  come,  God  give  us  honest, 
upright  men,  who  will  be  neither  the  tools  of  the  corporations,  nor  of  the  populists 
struggling  to  corifiscate  and  destroy  private  property.  Should  it  come,  give  to  the  old 
Commonwealth  of  Virginia  men  who  will  administer  its  powers  honestly  and  fairly. 

I  go  a  step  further.  I  have  already  touched  upon  the  fact  that  this  article  gives 
to  the  railroad  commission  the  power  to  initially  fix  rates,  to  fix  them  in  the  first 
instance,  whether  there  is  any  complaint  or  not,  whether  there  is  any  wrong  done  or 
not.    It  gives  that  initial  power  to  the  commission.    Is  that  fair?    Is  that  right? 

My  friend  has  read  from  an  article  by  ?^Ir.  E.  P.  Bacon,  in  the  North  American 
Review  for  January,  pointing  out  the  defects  in  the  interstate  commerce  law,  and 
refeiTing  to  the  proposed  amendment  to  that  law.  I  presume  that  Mr.  Bacon  is  a  fair 
representative  of  the  views  of  the  gentlemen  who  occupy  the  same  position  as  the 
gentleman  from  Augusta,  and,  particularly,  the  gentleman  from  Danville,  because  he  is 
from  the  city  of  Milwaukee,  a  city  that  has  a  grievance.  Now,  let  us  see  what  he 
says.  He  denies  in  the  most  indignant  way  that  any  of  the  amendments  to  the  Inter- 
state Commerce  Act  propose  to  give  to  the  Interstate  Commerce  Commission  the  initial 
power  to  fix  rates.  I  read  from  an  article  by  E.  P.  Bacon,  of  Milwaukee,  in  the  North 
American  Review  for  January,  1902: 

The  authority  which  the  amendments  to  the  Interstate  Commerce  Act,  pending  in  the 
last  Congress,  were  intended  to  confer,  has  been  designedly  misrepresented  by  railvv^ay 
officials  and  attorneys,  and  characterized  as  an  arbitrary  povv^er  to  fix  rates.  They  have 
succeeded  to  a  considerable  extent  in  instilling  this  false  idea  into  the  public  mind,  and 
even  into  the  minds  of  some  of  the  editorial  writers  of  the  press,  who  have  not  taken  the 
pains  to  examine  the  bill  and  ascertain  for  themselves  what  its  provisions  were.  There 
was  nothing  contained  in  it  which  could  possibly  be  construed  as  conferring  power  upon 
the  commission  primarily,  nor  to  pass  upon  them  in  any  way  prior  to  their  going  into 
effect. 

This  is  a  statement  made  by  Mr.  Bacon,  an  extreme  man  -upon  this  subject,  a 
gentleman  who  was  seeking  to  point  out  defects  in  the  Interstate  Commerce  Law  and 
in  the  amendments  that  were  proposed;  and  yet  he  indignantly  denies  that  there  was 
any  intention  to  confer  the  power  to  fix  rates,  primarily,  upon  the  commission,  and 
says  that  the  attempt  to  show  that  such  authority  was  intended  to  be  conferred  was 
due  to  misrepresentation.  Why  does  he  deny  the  intention  to  confer  such  authority? 
Because  he  thought  it  was  wrong  to  give  this  primary  power  to  fix  rates  to  the  com- 
mission and  that  its  only  right  should  be  the  power  to  consider  rates  already  fixed 
by  the  roads. 


2183 


DEBATES  OF  THE  CONSTITUTIOIsTAL  CONVENTIOJsT  OF  YIRGIXIA. 


I  come  to  another  objection  to  the  majority  report.  No  appeal  is  guaranteed  to 
the  common  carries,  except  from  decisions  on  rate  questions.  In  all  matters  involving 
the  number  of  trains,  the  character  of  the  trains,  their  schedules,  and  the  facilities 
generally  which  these  carriers  must  afford— matters  great  enough  to  bankrupt  the 
carriers— they  are  left  without  any  guarantee  of  appeal.  If  that  important  matter  be 
left  to  the  General  Assembly,  why  should  not  the  whole  subject  be  left  to  it? 

Gentlemen  of  the  committee,  is  it  fair  and  right  to  give  any  three  men  the  power 
to  bankrupt  all  the  railroads  in  the  State  of  Virginia,  without  at  the  same  time  giving 
the  railroads  the  right  of  appeal  in  all  cases?  But,  says  my  friend  from  Augusta,  we 
relegate  you  to  the  legislature,  your  own  haven  of  rest.  Let  us  see  if  there  is  not  some 
other  explanation  to  be  found  in  the  most  admirable  remarks  of  the  gentleman  from 
Augusta.  Were  you  struck  with  the  fact  that,  in  the  course  of  his  remarks,  he  said 
that  while  the  railroads  were  powerful  to  prevent  legislation,  they  were  comparatively 
helpless  to  carry  through  legislation?  May  we  not  find  here  the  inspiration  of  the 
failure  to  give  the  right  of  appeal  to  the  railroads  in  any  cases  except  as  to  rates? 
According  to  the  principle  which  my  friend  from  Augusta  has  laid  down  he  may  think 
that  the  railroads  will  be  powerless  to  initiate  legislation,  that  will  give  them  the  right 
to  appeal  and  that  it  will  leave  them  helpless,  to  be  destroyed  at  the  sweet  will  of  this 
commission,  without  appeal  to  anyone  on  God's  earth. 

Says  the  gentleman,  the  power  of  the  Czar  of  RuSiSia  is  not  equal  to  that  of  J. 
Pierpont  Morgan  in  this  country.  I  say  to  him  that  the  power  of  the  Czar  of  Russia 
is  not  equal  to  the  power  he  has  given  to  these  three  railroad  commissioners  over  the 
railroads  of  the  Commonwealth  of  Virginia.  Is  that  fair?  Is  that  right?  Does  that 
deal  as  fairly  and  as  honestly  and  as  justly  with  the  railroads  as  they  have  dealt  with 
the  people  of  this  Commonwealth? 

The  third  objection  to  the  article  is  that,  in  any  appeal  that  is  taken,  the  decision 
of  the  commission  is,  by  force  of  constitutional  mandate,  to  be  taken  as  prima  facie 
coi^rect — a  principle  which  prevails  nowhere  else  in  judicial  procedure. 

I  had  intended  tO'  modify  that  sentence  in  the  report,  but  I  do'  not  know  whether 
I  did  or  not.  I  presume  that  I  failed  to  do  so.  I  meant  to  limit  it  by  saying  it  is  a 
principle  which  prevails  nowhere  else  in  our  judicial  procedure.  The  statement  is  a 
little  too  broad,  for  I  do  not  profess  to  be  familiar  with  the  judicial  procedure  of  the 
other  States  of  the  Union  or  of  the  United  States.  But  I  believe  that  the  statement 
as  made  in  the  report  is  correct  and  true.  I  do  not  believe  that  there  is  any  other 
judicial  proceeding  where  the  decision  of  the  lower  court  is  made  prima  facie  correct. 
I  know  there  is  no  such  proceeding  in  Virginia.  I  believe  there  is  no  such  proceeding 
in  the  United  States  or  in  any  State  thereof.  I  am  not  forgetful  of  the  fact  that  the 
Interstate  Commerce  law  contains  a  provision  that  the  finding  of  the  commission 
upon  matters  of  fact  shall  be  prima  facie  correct;  but  it  does  not  provide  that  the 
decisions  shall  be  deemed  prima  facie  correct. 

What  will  be  the  force  and  affect  of  such  a  provision  upon  the  decisions  of  our 
courts?  I  say  there  is  no  man  within  the  sound  of  my  voice  who  can  foretell  or  foresee 
what  the  effect  will  be.  I  say  that  it  is  unjust;  that  it  is  an  exception;  that  it  violates 
every  rule  of  law  and  procedure.    I  say  it  is  unjust  and  unreasonable. 

Another  objection  is:  The  appeal  bond  is  made  subject  to  the  approval  of  the 
corporation  commission,  and  no  power  is  given  to  the  appellate  court  to  remedy  any 
injustice  in  this  regard  the  commission  may  be  guilty  of,  thus  putting  it  in  the  power 
of  the  commission  to  practically  prevent  appeals  from  its  own  orders.  The  commission 
also  has  the  power  to  increase  these  bonds  and  demand  new  security  v/hen  they  please. 
I  do  not  know  as  to  appeal  bonds  under  any  other  practice  than  that  of  the  State 
of  Virginia;  but  I  do  know  there  is  no  precedent  for  that  provision  in  this  State.  In 
our  courts  the  clerk  of  the  court  is  required  to  take  the  bond  and  he  passes  upon  the 
sufficiency  of  the  security.  Here  the  commission  itself,  the  commission  from  whose 
order  you  take  the  appeal,  is  authorized  to  take  the  bond  and  to  require  increased 
security,  if  they  please. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2183 


These  matters  show  the  spirit  of  hostility  to  the  corporate  interests  of  the  State 
in  which  this  measure  is  conceived,  in  spite  of  the  friendly  feeling  and  the  spirit  of 
justice  which  my  friend  thinks  he  entertains  towards  railroads.  I  do  not  mean  to 
question  for  a  moment  his  perfect  frankness  in  that  statement;  but  I  observed  that  in 
the  progress  of  his  discussion  he  let  fall  a  remark  which,  I  thought,  showed  the  animus. 
If  my  friend  was  disposed  to  be  fair  and  just  and  good  to  me  in  the  same  way  that  he 
is  to  the  corporations,  and  I  should  meet  him  at  night  in  the  dark,  I  would  like  to  have 
a  gun  mighty  handy. 

The  commission  is  given  the  power  to  fine  corporations  for  failure  or  refusal  to 
obey  their  lawfui  orders  as  much  as  $500  per  day,  and  as  much  more  as  the  law  allows, 
and  each  day  of  such  failure  is  peremptorily  made  a  separate  offense,  no  matter  how 
bona  fide  the  difference  of  opmion  may  be  as  to  the  legality  of  the  order.  Gentlemen 
of  the  committee,  I  am  earnestly  and  strongly  in  favor  of  enforcing  a  law,  when  it 
occupies  a  place  in  the  Constitution  or  the  statutes;  but  until  the  finality  of  an  order 
is  determined,  I  say  that  the  court  should  not  have  the  authority  to  enforce  it  in  that 
way. 

Referring  again  to  the  amendments  of  the  interstate  commerce  act,  prepared  by 
Mr.  Bacon,  the  gentleman  from  Milwaukee,  they  provided  that  the  order  of  the  com- 
mission was  not  to  go  into  effect  in  less  thon  twenty  days,  and  generally  provided  for 
thirty  days  or  more  in  the  discretion  of  the  commission.  But  this  article  provides  that, 
from  the  very  day  the  commission  passes  an  order,  the  railroad  company  is  to  pay 
$500  or  more  for  every  day  they  violate  it.  Suppose  a  whole  schedule  is  to  be  changed, 
under  the  order  of  this  commission. 

Does  any  man  with  reasonable  practical  sense  imagine  for  a  moment  that  it  will 
be  possible  for  a  great  railroad  system  to  arrange  its  schedule  in  less  than  ten,  twenty 
or  thirty  days,  and  yet,  the  power  is  given  to  the  commission  to  fine  this  railroad  com- 
pany for  every  day  they  fail  to  obey  its  orders,  and  for  all  the  days  that  are  necessary 
to  make  a  safe  railroad  schedule  to  protect  the  lives  of  the  citizens  of  Virginia.  You, 
gentlemen,  know  that  it  takes  some  time  to  prepare  a  record  and  appeal  in  a  case, 
and  yet  all  the  time  you  are  preparing  for  your  appeal  the  railroad  commission  has  the 
right,  if  it  chooses,  to  fine  the  railroad  $500  per  day  or  more.  Is  that  dealing  fairly 
with  the  railroads?  Is  that  dealing  in  the  spirit  of  justice  with  which  my  friend  says 
he  desires  to  meet  this  question?  I  say  that  such  a  provision  may  bankrupt  the  rail- 
roads of  the  State. 

I  will  not  ^ deal  with  Section  6  at  the  present  time,  because  I  am  going  far  beyond 
the  time  I  had  expected  to  occupy,  but  I  will  reserve  the  further  discussion  of  that 
section  for  a  later  time. 

I  come  next  to  the  long  and  short  haul  clause  Section  9,  which  provides: 

No  transportation  or  transmission  company  shall  charge  or  receive  any  greater 
compensation,  in  the  aggregate,  for  transporting  the  same  class  of  passengers  or 
property,  or  for  transporting  the  same  class  of  messages,  over  a  shorter  or  a  longer  disr 
tance,  along  the  same  line  and  in  the  same  direction  (the  shorter  being  included  in  the 
longer  distance),  whether  such  longer  distance  be  entirely  within  the  State  or  not;  but 
this  section  shall  not  be  construed  as  authorizing  any  such  company  to  charge  or  receive 
as  great  compensation  for  a  shorter  as  for  a  longer  distance. 

That  section,  I  think,  contains  a  very  gross  and  great  injustice  to  the  railroads. 
We  have  had  some  experience  upon  that  subject.  The  interstate  commerce  law  had 
such  a  provision,  but  it  was  greatly  modified  by  the  addition  of  the  words  "under 
substantially  similar  circumstances  and  conditions."  In  this  section  the  words  "under 
substantially  similar  circumstances  and  conditions"  have  been  omitted.  I  say  it  is 
impossible  for  the  railroad  companies,  without  absolute  destruction,  to  be  required  to 
charge  no  more  for  short  than  for  a  long  haul  where  circumstances  are  substantially 
different.  That  would  ruin  the  roads,  cause  them  to  lose  traffic  and  cause  them  to 
keep  up  their  rates  in  order  not  to  come  under  the  hard  conditions  of  this  provision. 


2184  DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTION  OF  VIRGIXIA. 

Let  us  look  to  see  what  has  been  the  history  of  this  matter.  In  1898  Mr.  Cullom 
introduced  in  tlie  United  States  Senate  a  bill  in  which  he  had  a  provision  exactly  as 
this  is  here,  in  the  majority  report.  That  provision  did  not  pass;  it  did  not  become  a 
law.  Why?  If  we  can  draw  inference,  we  can  infer  that  it  was  because  it  did  not 
commend  itself  as  a  wise,  discreet  and  fair  thing  to  be  done  to  the  railroads.  But 
that  is  not  all.  There  is  a  much  stronger  reason  than  that.  I  have  already  referred 
to  Mr.  Bacon,  of  Milwaukee,  whO'  was  introduced  as  a  reliable  witness  by  my  friend 
from  Augusta,  as  he  has  been  vouched  for  by  him  in  a  quotation  from  his  article.  He 
drafted  a  bill  which  was  introduced  in  December,  1901,  to  amend  the  interstate  com- 
merce law.  Although  the  Cullom  bill,  in  1898,  left  out  the  words  "under  substantially 
similar  circumstances  and  conditions,"  Mr.  Bacon,  in  the  bill  that  he  proposed,  adopted 
and  approved  Dy  the  Interstate  Commerce  Commission,  made  no  such  amendment. 
This  was  a  bill  to  amend  the  interstate  commerce  act,  and  all  acts  amendatory  thereof,, 
prepared  by  the  executive  committee  on  the  interstate  commerce  law,  it  having  met 
at  St.  Louis,  Missouri,  on  November  20,  1900,  and  being  composed  of  forty-one  delegates. 

It  does  not  undertake  to  amend  section  4  of  the  Interstate  Commerce  Act  in  any 
respect,  although  the  Cullom  bill,  introduced  in  1898,  did  do  so.  He  was  acting  with 
the  Interstate  Commerce  Commission.  This  was  a  bill  recognized  and  approved  by 
them.  They  wanted,  as  all  men  do,  to  aggrandize  their  own  power,  and  to  give  them- 
selves all  the  power  they  could;  but  they  knew,  from  experience,  that  it  was  impossible 
to  conduct  railroads  with  that  provision  left  out.  You  will  find  that  my  friend,  who 
is  so  fair  in  his  disposition  towards  the  railroads,  always  adopts  the  most  drastic,  the 
most  heroic,  the  most  criminal  measures  against  the  roads — I  mean,  of  course,  criminal 
in  the  character  of  the  punishment  to  be  administered  to  the  corporations. 

Here  is  a  man  of  his  way  of  thinking,  one  of  the  most  extreme,  from  a  city  with 
a  grievance,  with  a  Cullom  amendment  before  him,  who  did  not  undertake  to  strike  out 
these  words  even  when  acting  with  the  Interstate  Commerce  Commission,  because  it 
was  unfair  to  the  railroads. 

The  report  of  the  minority  of  the  committee  differs  from  the  Intrestate  Commerce 
Law,  by  the  insertion  of  a  single  word.  We  put  in  one  word.  The  clause  reads  "under 
substantially  similar  circumstances  and  conditions."  We  inserted  "of  competition," 
so  that  the  clause  would  read.  "Under  substantially  similar  circumstances  and  condi- 
tions of  competition."  I  will  tell  you  why  we  did  that.  We  followed  the  Interstate 
Commerce  Law  there  identically,  except  in  the  insertion  of  that  one  word.  Ine 
Supreme  Court  of  the  United  States  in  passing  upon  and  construing  the  Interstate 
Commerce  Law^  held  that  "under  substantially  similar  circum^stances  and  conditions" 
meant  "circumstances  and  conditions  of  competition."  The  word  "competition"  was 
not  in  the  Interstate  Commerce  Law,  but  was  construed  into  it  by  the  Supreme  Court, 
and  that  court  said  "substantially  similar  circumstances  and  conditions"  meant  circum- 
stances and  conditions  of  competition.  The  State  of  Kentucky,  one  of  the  two  States? 
that  has  a  constitutional  provision  upon  this  subject,  adopted,  either  by  statute  or 
Constitution,  I  know  not  which,  identically  the  language  of  the  Interstate  Commerce 
Act,  "substantially  similar  circumstances  and  conditions."  That  act  went  before  a 
circuit  court  cf  Kentucky,  which,  in  that  case,  was  the  court  of  last  resort,  and  the  court 
held  that  it  did  not  apply  to  competition,  but  merely  meant  "similar  circumstances  and 
conditions."  The  case  went  to  the  Supreme  Court  of  the  United  States,  which  had 
decided  that  identically  the  same  words  in  the  Interstate  Commerce  Act  did  mean 
"competition."  When  that  court  came  to  pass  upon  this  appeal  from  the  circuit  court 
of  Kentucky,  because  of  the  principle,  recognized  by  lawyers,  of  the  weight  to  be  given 
to  a  State  court  in  construing  a  State  law,  followed  the  decision  of  the  circuit  court 
of  Kentuckj^  and  said  that  the  same  language  identically  in  the  Kentucky  law,  meant 
one  thing,  and  in  the  Interstate  Commerce  law,  meant  another.  For  that  reason  we 
have  put  the  word  "competition"  in,  so  as  to  leave  no  room  for  doubt  as  to  judicial 
construction  upon  this  matter. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  3185 

There  is  another  criticism  upon  the  long  and  short  haul  clause  of  the  article  pro- 
posed by  my  friend  from  Augusta,  and  that  is  this.  The  Interstate  Commerce  Law 
requires  the  roads  under  similar  circumstances  and  conditions,  to  charge  the  same 
rates,  but  where  the  circumstances  are  not  substantially  the  same,  they  permit  the, 
roads  to  charge  different  rates,,  because  the  circumstances  are  different,  subject, 
of  course,  to  review  by  the  commission,  subjecting  themselves  to  penalties  if  they 
have  acted  improperly  and  have  charged  less  when  the  circumstances  and  conditions 
were  the  same.  The  majority  plan  requires,  in  order  to  be  permitted  to  charge  less 
where  the  circumstances  and  conditions  are  not  substantially  the  same,  that  before 
you  do  it  you  must  go  to  the  railroad  commission  and  get  their  permission  to  do  it. 
We  knov/,  those  of  us  who  have  had  any  experience  in  that  direction,  that  rates  from 
competitive  points — and  there  is  where  the  trouble  comes  in — are  generally  arranged 
by  wire.  I  suppose  that  is  the  case  in  999  out  of  1,000  cases.  I  do  not  know  anything 
about  the  proportion,  but  in  the  large  proportion  of  cases,  the  rates  are  arranged  by 
wire,  and  by  the  time  the  railroad  companies  of  Virginia  had,  under  the  articles  of  this 
Constitution,  gone  to  the  commission  and  gotten  permission  to  charge  less  rates  under 
similar  circumstances  and  conditions,  the  traffic  would  have  gone,  and  the  roads  of 
Virginia  would  have  lost  it. 

Mr.  Braxton:  Did  I  understand  you  to  say  that  by  the  terms  of  the  minority 
report,  in  case  a  railroad  company  should  violate  the  long  and  short  haul  clause,  as 
you  have  drawn  it,  the  commission  would  punish  them  for  that  violation? 

Mr.  Hunton:    I  said  they  would  have  the  power  to  punish  them,  and  could  do  it. 

Mr.  Braxton:  I  was  not  aware  that  it  gave  them  any  power  except  to  certify  the 
violation  to  the  court. 

Mr.  Hunton:  I  have  possibly  gone  too  far  in  saying  that.  The  railroad  commission 
can  summon  them  before  it  and  inquire  into  whether  they  have  violated  the  law.  If 
they  have  they  can  tell  them  what  they  must  do,  and  if  they  fail  to  do  it,  or  dol  not 
comply  with  the  law  the  commission  would  certify  it  to  the  court. 

Mr.  Braxton:    But  the  commission  could  not  punish  them. 

Mr.  Hunton:    The  commission  could  not  punish  them  under  this  provision. 

Mr.  Chairman,  it  is  a  matter  of  infinite  regret  to  me  to  consume  the  time  of  the 
Convention,  and  my  only  excuse  for  it  is  the  importance  of  this  matter  and  the  fact 
that  I  do  not  believe  its  consequences  and  effects  are  clearly  understood.  I  believe 
it  would  be  a  great  disaster  to  the  State  of  Virginia,  to  put  any  such  article  as  this 
either  in  the  Constitution  or  in  the  statute  law.  I  am  coming  now  to  the  article  pro- 
posed by  the  minority  of  this  committee,  which  is  framed  with  this  idea:  that  the  right 
of  the  State  to  supervise  and  regulate  the  corporations  of  the  State  should  be  exercised, 
and  every  power  of  supervision  and  of  regulation,  should  be  given  chat  is  necessary, 
but  not  the  power  of  management  and  control. 

I  do  not  hesitate  to  say,  gentlemen  of  the  committee,  that  I  have  grave  doubt  as 
to  the  wisdom  of  putting  any  provision  in  the  Constitution  beyond  a  declaration  of 
this  general  principle;  a  Constitution  is  too  inflexible,  it  stands  too  long,  its  mistakes 
are  of  too  serious  a  character;  but  I  recognize  the  sentiment  of  this  body,  and  I  say 
that  I  want  to  meet  it  in  a  fair  and  reasonable  spirit,  and  I  want  to  give  absolute 
power  to  protect  every  right  of  the  people  of  the  Commonwealth  of  Virginia,  which 
has  been  or  may  be  violated. 

Now,  Mr.  Chairman  and  gentlemen  of  the  committee,  when  we  began  the  prepara- 
tion of  this  minority  report  we  thought  it  wise  to  select  the  best-considered  legislation 
upon  that  subject,  that  which  had  been  most  passed  upon  by  the  courts,  that  which 
had  been  most  considered,  and  the  terms  and  effect  of  which  were  best  understood, 
and  with  that  as  a  model,  to  examine  into  its  faults  and  its  virtues,  and  to  endeavor 
to  select  those  parts  which  are  good,  and  to  supply  the  defects  which  have  been  shown 
to  exist.  It  has  been  stated  upon  the  floor  of  this  committee,  and  I  believe  is  well- 
138— Const.  Deb. 


2186  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

known  to  this  body,  that  the  Masschusetts  statute  has  accomplished  the  best  results 
of  any  commission  in  this  country.  My  friend  says  it  was  due  to  the  personnel  of  the 
commission.  Doubtless,  that  was  very  largely  true.  The  powers  of  that  commission 
were  purely  and  simply  advisory.  My  first  inclination  was  tO'  adopt  the  Massachusetts 
statute,  but  I  thought  it  would  not  be  satisfactory  to  this  body  to  merely  give  this 
advisor^'  power.  I  knew  it  should  be  supplemented,  and  my  idea  was  to  give  the  law 
that  accomplished  the  best  results,  and  add  the  power  to  the  courts  to  enforce  the 
decisions  of  the  commission  if  the  roads  did  not  obey  the  suggestions  of  the  commis- 
sion. That  was  the  idea  which  I  had  in  mind.  When  I  went  into  the  examination  of 
the  matter,  and  into  the  consideration  of  it,  I  found  that  the  Interstate  Commerce  Law 
had  been  most  thoroughly  considered,  had  been  most  passed  upon  by  the  courts,  and 
its  terms  and  provisions  were  best  understood. 

Anybody  who  will  examine  into  the  history  of  this  matter  will  know  that  wnen 
the  Regan  bill  was  introduced,  one  of  the  ablest  committees — I  do  not  know  whether 
it  was  a  committee  of  the  Senate  or  of  the  House  of  Representatives,  but  I  believe  it 
v/as  a  committee  of  the  Senate  of  the  United  States — investigated  this  matter  for 
several  years.  They  took  testimony  all  over  the  United  States.  The  most  distinguished 
railroad  men  shippers  and  traffic  men,  all  interested  in  the  subject  came  before  it. 
They  formulated  the  Regan  bill,  and  it  was  modeled  upon  the  English  railway  acts  of 
1854  and  1875 — I  think  I  have  the  dates  correctly. 

That  act  embodied  the  best  thought  the  Anglo-Saxons  have  been  able  to  give  this 
vexed  question,  and  with  great  deference  to  my  learned  friend  from  Augusta,  I  would 
prefer,  with  all  my  admiration  for  his  industry  and  ability,  to  take  the  wisdom  of  the 
English  people  and  of  the  American  people  and  act  upon  their  ideas,  than  to  accept  a 
hastily  conceived  conclusion  drawn  from  the  various  statute  laws  of  the  various  States 
in  this  Union.  The  former  has  been  In  operation  for  years,  has  been  passed  upon  by 
the  courts,  its  merits  have  been  clearly  defined,  and  its  defects  equally  clearly  pointed 
out.  Our  purpose  and  object  has  been  to  remedy  the  defects,  following  to  some  extent, 
the  amendments  proposed  to  the  Interstate  Commerce  act,  and  to  give  to  the  commission, 
through  the  courts,  the  power  to  enforce  its  suggestions  and  orders,  and  to  give  to 
the  State  the  pov/er,  through  its  courts  to  enforce  the  suggestions  of  this  commission. 

Mr.  Meredith:  Is  it  not  a  fact,  though,  that  the  Interstate  Commerce  Act  has 
been  freely  criticised  and  found  fault  with?  Because  of  the  fact  that  it  has  no  power 
to  fix  rates?  And  is  it  not  true  that  even  now  they  are  demanding  that  shall  be  done? 
I  see  by  the  paper  that  the  Senator  from  West  Virginia  

Mr.  Hunton:    Yes,  sir,  I  am  going  to  deal  with  that  fully  and  frankly. 

Mr.  Meredith:  I  did  not  mean  to  say  you  were  not;  but  you  spoke  on  having 
adopted  that  and  I  wanted  to  know  whether  it  had  not  been  complained  of. 

Mr.  Hunton:  Yes,  sir;  and  I  have  heard  intelligent  gentlemen  on  this  floor 
express  a  disinclination  to  support  the  minority  report  because  it  was  modeled  on 
the  Interstate  Commerce  law,  because  of  their  belief  in  the  inefficiency  of  the  Inter- 
state Commerce  law.  I  say  it  does  seem  to  me  that  sentiment  of  that  sort  should 
not  control  the  actions  of  this  body;  that  this  minority  report  should  be  examined  and 
its  provisions  carefully  considered,  and  if  it  has  met  the  defects  of  the  Interstate 
Commerce  law  and  properly  and  fairly  regulates  and  supervises  the  carrying  com- 
panies of  me  State,  it,  instead  of  the  majority  report,  should  be  engrafted  into  the 
Constitution  of  the  State. 

In  reference  to  the  remarks  of  my  friend  from  Augusta — and  I  must  say  that  I 
did  not  think  he  treated  the  report  of  the  minority  fairly  in  his  argument— I  know 
the  report  is  not  susceptible  of  the  construction  that  he  endeavors  to  put  upon  it, 
and  I  think  if  he  would  examine  it  as  a  lawyer,  he  would  reach  that  conclusion 
himself,  I  am  compelled  to  believe  that  the  view  he  took  of  it— I  do  not  mean  to 
say  his  failure  to  adopt  it,  but  his  criticising  it  as  he  did  and  his  claiming  it  was  open 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2187 


to  the  interpretation  to  T^'hich  he  held  it  was  open — was  due  to  the  fact,  recognizing 
as  I  do  his  ability  as  a  lawyer,  that  he  had  not  examined  that  report  fairly  and  candidly. 

My  friend  did  not  state  in  my  judgment  and  in  the  judgment  of  ^Ir.  Bacon,  his 
colleague,  his  co-worker,  the  witness  produced  and  vouched  for  by  him.self,  the 
objections  to  the  Interstate  Commerce  law  and  in  its  efficiency;  and  I  think  when  the 
terms  of  the  Interstate  Commerce  act  are  presented  to  this  body  they  will  recognize 
how  its  provisions  destroy  all  the  force  and  virility  of  the  Interstate  Commerce  act: 
and  that  I  have  sought  to  remedy.  I  read  from  Mr.  Bacon,  in  the  North  American 
Revievv,  and  he  is  the  most  pronounced  anti-railroad  man,  I  imagine,  you  can  find, 
except  my  friend  from  Augusta  and  my  friend  from  Danville. 

The  existing  Interstate  Commerce  act  has  proved  futile  in  remedying  the  abuses 
in  the  transportation  service  of  the  country  which  it  was  designed  to  correct^  the  com- 
mission created  by  it  having  been  rendered  impotent  by  decisions  of  the  Federal  courts 
which  have  been  made  during  the  last  few  years.  The  Supreme  Court  has  gone  to  the 
extent  of  declaring  that  the  law  confers  upon  the  commission  no  authority  to  preceed 
further,  when  in  any  case,  after  a  full  hearing  of  all  parties  in  interest,  it  finds  that 
rates  or  regulations  are  unreasonable  or  unjust,  than  to  so  declare,  and  to  order  the 
carrier  to  "cease  and  desist'"' — 

That  is  a  defect  in  the  Interstate  Commerce  law  

From  charging  such  rates  or  enforcing  such  regulations;  and  that  the  commission 
has  no  authority  to  declare  what  in  its  judgment  would  be  reasonable  or  just  rates  or 
regulations  in  the  case  in  question,  or  to  require  such  changes  to  be  made  in  them 
as  would  bring  them  into  conformity  with  the  provisions  of  the  act.  It  will  be  readily 
seen  that  the  carrier  may  comply  with  the  order  to  'cease  and  desist'  by  making  such 
slight  change  as  its  officers  m&j  see  fit,  and  that  the  public  is  without  practical  redress 
from  any  extortion  or  discrimination  which  a  carrier  ma^^  arbitrarih"  choose  to  practice, 
except  the  remedy  at  common  law%  with  its  interminable  delays  and  intolerable  expen- 
siveness,  from  the  hardship  of  resorting  to  which  it  was  the  purpose  of  the  Interstate 
Commerce  act  to  relieve  the  public. 

That  is  the  cause  of  the  inefficiency,  as  I  understand  it,  of  the  Interstate  Com- 
merce law.  They  have  the  power  to  say  to  a  railroad,  "You  must  Ccase  and  desist 
from  what  you  are  doing."  but  they  have  no  power  to  say  what  you  ought  to  do  and 
what  you  must  do. 

Now,  the  amendments  proposed  by  :Mr.  Cullom  in  1898  were  directed  chiefly  to  that 
defect.  The  amendments  proposed  by  'Mv.  Bacon  in  December,  1901,  with  the  con- 
currence of  the  Interstate  Commerce  Commission,  are  devoted  mainly  to  a  correction 
of  that  defect.  The  article  presented  by  the  minority  of  the  committee  has  endeavored 
to  correct  that  defect,  and  I  believe  it  has  been  corrected  in  that  minority  article. 

I  want,  first,  to  say  this,  that  all  these  regulations  about  publicity  I  endorse  and 
approve.  They  are  just  as  thoroughly  provided  for  in  the  minority  report  as  in  the 
majority  report,  in  my  judgment.  My  friend  from  Augusta,  when  he  read  from  the 
last  report  of  the  Interstate  Commerce  .Commission  as  to  what  were  the  abuses  of  the 
railroads  in  secret  rates  and  rebates,  and  when  he  denominated  them  no  white-winged 
Innocents" — and  he  was  connect;  their  conduct  was  most  reprehensible — knows  that 
that  portion  of  lis  report  was  not  addressed  to  rates,  but  to  secret  rebates  and  dis- 
criminations and  grew  Iragely  out  of  a  clause  of  the  Interstate  Commerce  law.  The 
weaker-road  vras  losing  its  traffic.  To  retain  it.  it  began  to  give  a  secret  rebate.  The 
stronger  road  would  find  it  out,  and  in  order  to  keep  its  weaker  competitor  from  getting 
Its  business  by  that  unjust  method,  the  stronger  road  would  begin  to  give  secret  rebates. 
There  are  the  complaints,  and  the  main  complaints,  that  the  Interstate  Commerce 
Commission  gives  which  the  law  is  intended  to  meet  and  is  trj'ing  to  meet.  The 
minority  report  is  as  strong  as  to  secret  rebates  as  is  the  majority  report.  If  it  is 
not,  and  I  believe  it  is.  strengthen  it  in  every  conceivable  way.  It  is  a  wrong  and 
an  injustice  to  the  public  and  to  the  railroads,  and  I  will  read  from  my  friend's  own 


2188  DEBATES  OF  TEIE  CONSTITUTIO^taL  CONVENTIOlSr  OE  VIRGINIA. 


associates  the  Interstate  Commerce  Commissioners,  to  show  that  the  trouble  is  not 
rates,  but  secret  rebates. 

The  Hon.  Marton  A.  Knapp,  chairman  of  the  Interstate  Commerce  Commission, 
made  a  statement  before  the  Senate  Committee  on  Interstate  Commerce,  m  March, 
1898;  and  I  am  arguing  to  show  that  the  trouble  is  not  rates,  but  secret  rebates,  which 
the  minority  and  majority  are  both  struggling  to  correct.  Here  is  what  Mr.  Knapp, 
the  chairman  of  the  Interstate  Commerce  Commission,  who  was  struggling"  to  give 
greater  power  to  his  commission  to  accomplish  the  object  for  which  that  power  was 
desired,  said: 

In  the  first  place,  as  Senator  Elkins  says,  the  question  of  excessive  rates;  that  is 
to  say,  railroad  charges,  which  in  and  of  themselves  are  extortionate,  is  pretty  nearly 
an  absolute  question.  I  would  not  affirm  that  there  are  no  such  rates,  yet  broadly- 
speaking  there  are  not  many  such.  Those  are  not  the  rates  of  which  the  public  com- 
plain. The  discriminating  practices  which  are  accomplished  either  by  a  compliance 
with  the  present  law  or  in  regard  to  it  are  things  which  really  affect  the  public  interest. 

The  report  of  the  commission  from  which  my  friend  read  shows  that  it  is  the 
secret  rebate.  Now,  what  leads  up  to  these  secret  rebates?  Let  us  consider  that  for 
a  moment,  and  see  what  brought  this  practice  into  being  and  whether  the  chambers 
of  commerce  that  my  friend  has  cited  as  so  substantially  supporting  his  provisions 
had  any  part  in  it.  We  all  know  that  there  was  an  anti-pooling  provision  in  the 
Interstate  Commerce  law  as  originally  passed,  which  prohibited  the  roads  from  getting 
together  and  agreeing  upon  rates  and  maintaining  them  from  competitive  points. 
I  am  told  there  was  scarcely  a  member  of  Congress  or  a  Senator  who  did  not  think 
that  was  one  of  the  wisest  provisions  of  the  Interstate  Commerce  law.  I  am  told  that 
practically  every  chamber  of  commerce  and  board  of  trade  to  the  United  States 
endorsed  that  provision  as  the  most  beneficial  of  the  Interstate  Commerce  law.  It  is 
that  provision,  gentlemen  of  the  comjmittee,  that  has  prohibited  the  railroads  from 
getting  together  and  fixing  rates  from  competitive  points  that  has  led  to  the  secret 
rebates  to  a  favored  individual  giving  him  an  advantage  over  another;  and  to-day 
I  find  from  the  same  authority  that  every  board  of  trade  and  every  chamber  of  com- 
merce which,  but  a  few  years  ago,  were  so  anxious  for  the  passage  of  this  anti-pooling 
provision,  has  petitioned  Congress  to  repeal  it. 

That  shows  how  much  value  you  can  attach  to'  the  opinion  of  bodies  of  this  sort, 
intelligent  though  they  may  be,  when  they  are  not  familiar  with  the  effect  of  these 
matters  upon  their  own  interests  which  they  are  seeking  to  protect.  But  a  short  time 
ago  every  one  of  them  was  in  favor  of  the  anti-pooling  provision  of  the  Interstate 
Commerce  law,  believing  it  was  essential  to  their  prosperity,  believing  it  was  essential 
to  the  development  of  their  trade,  and  to-day  every  one  of  them  is  petitioning  Congress 
to  have  that  very  provision  repealed. 

Now,  I  will  give  the  general  ideas  that  enter  into  the  minority  report.  First,  it 
provides. 

1.  That  all  charges  by  common  carriers  shall  be  reasonable  and  just;  all  unreason- 
able and  unjust  charges  being  prohibited  and  declared  illegal. 

2.  That  there  shall  be  no  undue  or  unreasonable  preference  or  advantage  of  one 
person  or  locality  over  any  other,  and  no  special  favors  shown  to  any  patron,  directly 
or  indirectly,  by  rebates,  drawbacks  or  other  device. 

3.  That  no  greater  charge  shall  be  made  for  a  shorter  than  for  a  longer^  haul, 
except  in  cases  where  dissimilar  circumstances  and  conditions,  justify  it,  the  action  of 
the  carrier  in  the  premises  being  subject  to  be  overruled  by  State  authority. 

4.  That  the  safety  of  the  traveling  public  must  be  guarded,  and  the  sufficiency  of 
transportation  facilities  guaranteed. 

5.  That  publicity  must  be  secured  in  all  matters  in  respect  to  these  corporations 
by  which  the  interests  of  the  public  are  affected. 

6.  That  a  commission  should  be  established  to  ascertain  if  any  of  these  funda- 


DEBATES  OF  THE  COXSTTTUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2189 


mental  duties,  or  any  other  legal  duty  of  the  carriers,  are  violated;  and,  if  so,  the 
whole  legal  department  of  the  State  and  the  State  treasury  is  put  at  the  sei^-ice  of  the 
commission  to  remedy  the  wrong  and  to  protect  the  indiAidual  complainant  without 
expense  to  him." 

My  friend  has  complained  of  the  difficulty  encountered  by  the  "poor  whites"  an 
expression  that  was  never  agreeable  to  me,  and  especially  in  a  discussion  of  this  sort, 
because  I  cannot  help  thinking  that  a  man,  when  attempting  to  detemiine  a  great 
matter  as  a  statesman  should  deal  with  it,  speaks  of  the  poor  white  man  and  arrays 
him  against  the  corporations,  it  is  v/ith  some  idea  that  it  may  affect  results.  He  says 
that  the  poor  white  man  who  pays  his  five  dollars  excessive  freight  would  have  no 
chance,  and  there  would  have  to  be  100,000  suits  to  settle  questions  of  rates.  My 
friend  knows  that  under  the  Interstate  Commerce  Lav\^  any  number  who  choose  to  do  so 
can  unite  in  one  petition.  He  knows,  if  he  has  read  the  report  of  the  minority  of  the 
Committee  on  Corporations,  that  the  railroad  commission  itself,  of  its  ow^n  volition  may 
take  up  the  entire  schedule  of  a  road  and  revise  and  correct  it.  Is  there  nothing  there 
to  protect  the  poor  white  man?  This  one  suit  would  accomplish  all  that  my  friend 
says  100,000  suits  would  be  required  to  do.  The  v/hole  power  of  the  legal  department 
of  the  State  of  Virginia  is  placed  at  the  disposal  of  that  poor  white  man,  and  the 
whole  power  of  the  treasury  of  the  State  is  put  behind  him  in  order  to  right  his 
wrongs,  if  he  has  a  proper  case,  because  it  is  provided  in  the  minority  report  not  only 
that  the  commission  may  bring  up  a  whole  schedule  upon  its  own  volition,  and  as  my 
friend  knows,  under  the  general  provisions,  any  number  can  unite  in  one  petition, 
but  it  is  proved  that  in  the  Circuit  Court  the  Com.monwealth's  attorney  shall  represent 
the  State,  and  in  the  Court  of  ivppeals  the  Attorney  General  of  Virginia  shall  represent 
the  State.  Is  that  a  fair  criticism  that  my  friend  has  made  upon  the  minority  report, 
when  such  are  its  provisions?  I  know  my  friend  too  well  to  believe  iliat  he  intended 
to  misrepresent  it.  I  can  but  fear  he  has  given  as  little  attention  to  it  here  as  when  it 
was  presented  for  consideraiion  to  the  Committee  on  Corporacions. 

I  say  that  every  single  schedule  of  a  railroad  may  be  brought  up  by  the  com- 
mission on  its  own  volition;  any  number  may  be  united  in  one  application  and  the 
whole  power  of  the  legal  department  of  the  State  and  of  its  treasury  is  behind  the 
poor  white  man  if  his  rights  have  been  violated.  Now,  have  we  mot  the  difficulties 
and  the  troubles  of  the  Interstate  Commerce  Commission?  Bear  in  mind,  Mr.  Bacon 
says  that  they  only  have  the  power  to  order  a  carrier  to  "cease  and  desist"  and  the 
United  States  couits  have  the  power  to  enforce  their  order,  but  they  cannot  say  v/hat 
you  ought  to  do,  and  therefore  the  order  to  cease  and  desist  is  not  effective.  If  they 
are  charging  a  rate  of  50  cents.,  and  they  are  ordered  to  cease  and  desist  they  can  drop 
it  to  45  cents.  Is  that  an  objection  to  the  minority  report,  or  has  that  trouble  been 
removed?  i  p^ay  it  has  been  removed  in  view  of  a  decision  of  the  Supreme  Court  of 
our  own  Stat^,  which  my  friend  says  is  not  a  parallel  case.    Why,  he  did  not  say. 

Now  I  will  endeavor  to  show  that  it  is  a  parallel  case.  The  Interstate  Commerce 
Commission  had  only  the  power  to  say  "cease  and  desist,"  and  the  court  only  the 
power  to  enforce  the  order  to  cease  and  desist.  What  does  this  minority  article  give 
to  the  courts?  It  provides,,  readmg  from  Section  8 — and  I  omit  the  preliminary  part — 
"shall,  in  writing,  request  said  common  carrier  or  person  operating  the  same  to  cor- 
rect the  cause  of  complaint."  Not  to  "cease  and  desist,"  but  to  "correct  the  cause  of 
complaint."  Now  le  tus  see  what  is  the  power  given  to  the  court,  absolutely  dissimilar 
from  that  of  the  Interstate  Commerce  Commission.  We  were  struggling  to  cure  the 
defects  of  the  Interstate  Commerce  law.  We  wanted  to  put  in  our  courts  the  actual 
power  to  enforce  a  proper  order  of  the  State  commission. 

If,  after  ten  days,  said  company  fails  or  refuses — 

That  is  to  correct  the  cause  of  complaint  


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DEBATES  OF  THE  COXSTITUTIOIS^AL  CONVENTION  OE  VIRGINIA. 


The  said  board  shall  report  the  cause  of  complaint  to  the  Attorney  General  of  this 
State,  who  shall,  in  the  name  of  the  Commonwealth,  proceed  to  have  all  matters  or 
cause  of  complaint  adjusted  before  the  circuit  court,  or  the  judge  thereof  in  vacation, 
of  the  county  or  city  wherein  the  cause  of  complaint  arose,  having  first  given_  the  said 
common  carrier  or  person  operating  the  company  ten  days'  notice  vv^hich  notice  shall 
contain  the  cause  of  complaint.  The  cause  shall  be  heard  by  the  said  circuit  court,  or 
the  judge  thereof  in  vacation,  on  said  notice,  and  no  other  pleading  shall  be  required. 
The  said  court  or  judge,  if  the  decision  is  in  favor  of  the  Commonwealth,  shall,  by 
mandatory  or  restraining  order,  prevent  the  common  carrier  or  person  complained  of 
from  further  continuing  to  violate  the  law. 

What  is  the  law?  The  lav/  says  your  rates  must  be  reasonable  and  just  and  that 
g-ny  rate  that  is  not  reasonble  and  just  is  void  or  illegal;  and  it  gives  to  the  court  the 
power  to  prevent"  the  carrier  from  continuing  to  violate  the  law.  How  different  from 
the  Interstate  Commerce  law!  That  only  has  the  power  to  order  him  to  cease  and 
desist,  and  tben  the  court  C8.n  only  enforce  the  order  to  cease  and  desist.  Here  you 
have  the  absolute  power  to  prevent  them  from  violating  the  law. 

Mr.  Thom:    And  only  as  to  one  act. 

Mr.  Hunton:  Unquestionably.  The  Interstate  Commerce  law  gives  the  Interstate 
Commerce  Commission  only  the  power  to  order  you  to  cease  and  desist  from  the  one 
act.  This  remedy  of  ours  gives  to  the  court  the  power  to  order  the  party  and  toi 
compel  him  by  the  processes  of  the  court  to  cease  from  a  violation  of  the  law. 

Mr.  Meredith:  If  the  gentleman  will  permit  me,  what  would  be  the  law  in  that 
case? 

Mr.  Hunton:  I  am  going  to  tell  you  that  now.  I  v/ant  to  say  that  the  language 
is  taken  from  the  present  railroad  law  as.  to  railroad  connections,  a  law  that  has  been 
upon  our  statute  books  since  1892,  and  that  law  has  been  construed  by  our  court  of 
last  resort  in  the  case  of  the  Southern  Railroad  Company  vs.  the  Commonwealth  and 
another. 

Mr.  Meredith:  I  am  familiar  with  that,  but  what  I  ask  you  is,  what  would  be 
the  law  with  regard  to  tariff  rates  that  it  would  violate? 

Mr.  Hunton:    That  they  should  be  reasonable  and  just. 
Mr.  Meredith:    And  that  is  all? 

Mr.  Hunton:  The  railroad  commission  would  decide  whether  those  rates  were 
reasonable  and  just,  and  if  they  were  not  reasonable  and  just,  would  prescribe  what 
were  reasonable  and  just,  and  suggest  to  the  road  that  it  should  put  into  effect  these 
reasonable  rates  as  determined,  and  if  it  failed,  it  would  be  cited  before  the  court  and 
the  court  would  compel  it  to  observe  the  reasonable  rates,  if  it  should  affirm  the 
decision  of  the  commission,  that  the  commission  had  prescribed.  I  cite  that  not  upon 
my  own  authority,  but  upon  the  authority  of  the  Supreme  Court  of  the  State  of  Vir- 
ginia. The  whole  case  comes  up  absolutely  de  novo  before  the  court,  I  was  in  the 
case  of  the  Southern  Railway  Company  vs.  The  Com.monwealth,  which  is  reported 
in  98th  Virginia.  It  was  a  case  of  this  sort— and  it  quotes  the  very  language  of  this 
statute  that  is  adopted  in  our  minority  report:  There  was  a  row  between  the 
Baltimore  and  Ohio  and  the  Southern  Railroad  Company  at  Strasburg  Junction,  in  the 
county  of  Shenandoah,  and  by  virtue  of  that  row  the  connection  was  broken  between 
those  roads.  The  Southern  has  a  little  link  in  there  between  two  parts  of  the  Baltimore 
and  Ohio.  They  were  at  loggerheads  and  they  failed  to  make  that  connection.  I  repre- 
sented the  Southern  Railroad  in  that  litigation.  The  city  of  Winchester,  I  believe, 
complained  to  the  railroad  commission,  who  investigated  the  matter  and  ordered  the 
connection  to  be  made.  The  Southern  Railroad  Company  he  ordered  to  give  so 
much  time  in  order  to  make  it,  and  the  Baltimore  and  Ohio  so  much 
time  The  Southern  Railroad  Company  obeyed  the  order  of  the  commissioner, 
and  the  Baltimore  and  Ohio  disobeyed  it.  The  connection  was  not  m.ade 
under  the  order  of  the  railroad  commissioner.  The  railroad  commissioner  cited 
these  roads  before  the  circuit  court  of  Shenandoah  county,  or  the  judge  thereof  in 


DEBATES  OF  THE  COXSTTTUTIOXAL  CONVEXTIOX  OF  YIKGINIA. 


2191 


vacation  (because  you  will  observe  that  in  order  to  give  a  prompt  and  speedy  remedy, 
not  only  can  it  come  before  the  court  in  term,  but  before  the  judge  in  vacation,  and 
takes  precedence  of  all  civil  cases),  and  the  circuit  court  of  Shenandoah  reversed  the 
order  of  the  railroad  commissioner — and  this  meets  exactly  the  point  asked  me  by  my 
friend  from  Richmond  (Mr.  Meredith)— and  held  that  the  Southern  should  give  more 
time  than  the  commissioner  said  it  must  give,  and  that  the  Baltimore  and  Ohio  should 
give  lesis  time,  not  only  saying  it  must  cease  to  disobey  the  order  of  the  commissioner, 
but  prescribing  what  it  ought  to  do.  That  is  what  the  circuit  court  of  Shenandoah 
did.  It  prescribed  what  they  both  must  do  in  order  to  comply  with  the  lavv,  and  decided 
that  the  result  reached  by  the  commissioner  was  not  the  right  result,  and  that  the 
Baltimore  and  Ohio  should  give  less  and  the  Southern  more  time  and  that  they  should 
make  theconnection.  That  case  went  to  the  Court  of  Appeals  of  Virginia,  and  the 
judgment  of  the  circuit  court  of  Shenandoah  county  was  affirmed,  and  the  connection 
was  made.  In  considering  that  matter  the  court  says — I  am  not  going  to  read  much 
from  it,  answering  the  question  of  my  friend  from  Richmond — "The  court  must  hear 

the  case  de  novo"  

Mr.  Meredith:    I  am -familiar  with  the  decision  of  the  court. 

Mr.  Hunton:  Then  it  answers  your  question.  The  court  must  hear  the  case 
de  novo.  It  not  only  deteimines  whether  the  commissioner  has  made  a  proper  order, 
but  it  enters  the  order  Avhich  it  itself  deems  proper. 

Not  only  can  the  railroad  commissioner  and  the  court  determine  Avhether  they  are 
compljing  with  the  law,  whether  the  present  rates  comply  with  the  law,  but  they  can 
prescribe  such  rates  as,  in  their  opinion,  do  comply  with  the  law;  and  if  that  is  not 
perfectly  plain  in  this  report  of  the  minority,  make  it  just  as  plain  by  amendment  as 
it  is  possible  to  make  it.  That  is  the  vei-y  intention  of  this  article,  and  in  the  very 
language  of  the  statue  of  Virginia  as  passed  upon  and  construed  by  our  own  Court 
of  Appeals,  believing  that  was  the  safest  and  the  surest  langvige  in  which  to  give  this 
rem^edy. 

I  am  not  going  to  wearA-  the  Convention  with  reading  this  decision,  but  any  lawyer 
who  examines  it  will  realize  that  under  this  language  the  power  of  the  court  is  absolute 
and  complete,  not  only  to  pass  upon  the  order  of  the  commissioner,  but  to  enter  such 
order  as  it  deems  proper. 

Mr.  Meredith:  T\niile  you  are  on  that  case,  is  it  not  a  fact — and  I  can  ask  you 
because  you  were  counsel  for  the  road — that  the  only  question  that  was  raised  in  that 
case  was  raised  as  to  whether  the  Southern  road  should  be  made  a  party  by  the  order 
of  the  circuit  court? 

Mr.  Hunton:  I  vnll  tell  you  what  is  true,  sir.  The  point  upon  which  the  case  was 
discussed  was,  as  to  whether  the  Southern  Railroad  Company  was  a  proper  party. 
There  never  was  a  question  raised  as  to  the  power  of  the  court  to  enter  the  proper 
order.  That  question  was  never  raised  or  disputed  or  denied  in  the  discussion  of  the 
case.  L 

My  recollection  is  that  the  whole  question  was  discussed  before  the  court,  either 
in  the  brief  or  verbally.  My  recollection  is  that  there  was  no  discussion,  no  criticism, 
of  the  power  of  the  court  to  consider  this  case  de  novo,  and  to  enter  such  order  as  it 
might  see  fit,  because  the  language  of  the  statute  is  so  plain  as  to  make  it  impossible 
to  found  an  argument  upon  that  subject. 

I  say  if  there  is  any  doubt  abut  it,  make  it  stronger.  My  idea  of  the  best  way  to 
strengthen  it  is  to  follow  the  language  that  has  been  construed  and  passed  upon  by 
our  court  of  last  resort. 

So  much  for  the  remedy.  There  is  another  criticism  of  the  Interstate  Commerce 
Law  made  by  Mr.  Bacon,  my  friend's  mnning  mate,  that  I  think  is  not  applicable  in 
Virginia.  He  speaks  of  the  delays  in  the  United  States  being  from  five  to  seven  years. 
Let  us  see  whether  that  objection  applies  in  the  State  of  Virginia.  This  case  was 
decided  in  the  circuit  court  of  Shenandoah  county,  and  the  decision  rendered  January 
25,  1900.    The  judgment  was  entered  in  the  circuit  court  of  Shenandoah  in  January, 


2192 


DEBATES  OF  TETE  CONSTITUTIONAE  CONVENTION"  OE  VIRGINIA. 


1900,  and  the  case  was  decided  in  the  Court  of  Appeals  in  Richmond  December  6,  1900. 
It  took  about  eleven  months,  and  I  happen  to  remember  that  that  case  went  to  the 
Court  of  Appeals  at  Staunton,  which  meets  in  September,  and  for  some  reason  or  other, 
I  think  upon  my  request,  it  was  removed  from  Staunton  to  the  city  of  Richmond,  thus 
being  delayed  several  months.  In  this  article  we  have  provided  not  only  that  the 
case  may  come  to  the  court,  but  that  it  may  be  tried  by  the  judge  in  vacation,  and  that 
it  shall  have  precedence  of  all  other  cases,  so  that  the  rem.edy  will  be  prompt  and 
quick. 

My  friend  from  Augusta  builds  men  of  straw  and  knocks  them  down  with  great 
success.  He  argued  very  elaborately  to  show  that  a  legislative  body  could  not  fix 
rates.  I  am  sure  nobody  within  the  sound  of  my  voice  claims  that  could  be  done. 
A  maximum  rate  is  the  veriest  humbug  on  earth.  I  believe  it  is  almost  as  inefficient 
as  the  plan  of  my  friend  will  be  to  remedy  the  wrongs  real  or  imaginary  of  the  people 
of  Virginia.  Nobody  contends  for  that.  The  contention  has  been  that  the  General 
Assembly  itself  might  delegate  its  authority  to  a  commission  with  the  power  to  amend 
instead  of  putting  it  in  the  Constitution  in  a  manner  in  which  it  cannot  be  changed  for 
so  many  years. 

My  friend  says  also  that  a  court  cannot  pass  on  rates,  in  these  10,000  cases  he 
has  spoken  of.  If  a  court  is  incapable  of  passing  on  rates,  what  is  the  virtue  of  the 
appeal  he  has  given  to  the  Court  of  Appeals  from  his  commission?  He  speaks  of  that 
as  a  great  generosity  to  the  railroads,  the  giving  to  them  an  appeal  to  the  Court  of 
Appeals;  and  yet  he  says  the  courts  cannot  fix  rates. 

Gentlemen  of  the  committee,  let  us  look  into  that  for  a  moment.  I  concede  it  is 
a  difficult  matter  for  .courts  to  fix  rates.  This  very  case  of  the  Southern  Railway 
Company  versus  the  Commonwealth  of  Virginia  involved  the  whole  schedules  or  time 
tables  of  the  Southern  Railroad.  We  realized  the  difficulity  of  a  court  dealing  with 
that  question;  and  there  was  no  discussion  as  to  the  schedules  to  any  considerable 
extent.  But  this  is  the  idea  of  the  minority  report,  an  idea  that  exists  in  the  majority 
report  as  well;  this  matter  comes  before  the  commission.  They  are  experts,  or  sup- 
posedly so.  They  investigate  the  matter  and  they  make  their  order  as  to  what  the 
roads  must  do  in  order  to  comply  with  the  law.  They  have  taken  the  testimony. 
Their  order  is  there.  The  testimony  upon  v/hich  that  order  is  based  is  there.  Now, 
we  say  let  the  court,  if  that  order  is  to  be  enforced,  take  that  order,  and,  with  the 
tesitimony,  say  whether  you  have  exercised  your  power  wisely  and  well.  We  have 
courts  that  pass  upon  your  life,  liberty  and  property;  let  them  pass  upon  this  testimony 
and  the  ruling  of  this  commission,  and  see  whether  it  is  fair,  reasonable  and  just. 
What  would  be  the  effect,  gentlemen,  of  that  situation.  What  would  be  the  conse- 
quence of  that?  Whenever  the  commission  has  thoroughly  investigated  the  matter 
and  made  a  rate  and  ordered  its  observance,  the  railroads  of  the  conmmonwealth  would 
never  dare  to  disobey  the  order  of  the  commission  unless  it  was  clearly,  outrageously 
wrong.  Railroads  know  how  difficult  it  is  for  a  court  to  deal  with  rates.  They  know 
they  can  never  hope  to  have  the  court  reverse  the  commassion  unless  its  decision  is 
plainly,  rankly,  outrageously  wrong,  and  unless  it  violates  some  great  principle. 

I  say  in  99  cases  out  of  100  unless  there  has  been  some  outrageous  wrong  such  as 
this,  there  would  never  be  an  appeal  from  the  decision  of  the  commission.  Then  why 
have  it?  Because  I  tell  you  when  you  give  power  to  men,  uncontrolled,  that  power 
is  liable  to  be  abused.  It  may  fall  into  improper  hands.  It  may  fall  into  dishonest 
hands.  It  may  fall  into  incompetent  hands.  The  greatest  evidence  that  it  could  be 
fairly,  reasonably  and  justly  administered  is  the  fact  that  you  have  an  appeal,  and 
when  any  outra.geous  wrong,  at  least,  is  committed,  you  can  have  that  corrected  in 
the  courts,  and  within  the  period  of  twelve  months,  as  is  established  by  this  case  of 
the  Southern  Railway  against  the  Commonwealth  of  Virginia. 

Mr.  Meredith:  Suppose  there  is  a  system  of  rates,  we  will  say  from  Danville  to 
Richmond,  and  the  complaint  is  made  as  to  the  city  of  Danville,  and  in  considering 
that  it  appears  that  for  the  intermediate  points  the  rates  are  objectionable.  Do  you 
mean  the  commission  shall  also  have  the  power  to  change  that? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2193 


Mr.  Hunton:  Absolutely  so,  provided  due  notice  is  given  to  the  railroad  companies, 
and  they  may  be  given  the  opportunity  to  meet  those  points  as  well  as  the  others. 

Mr.  Meredith:    And  you  think  your  language  is  broad  enough? 

Mr.  Hunton:  I  do;  but  if  it  is  not  broad  enough  I  am  perefctly  willing  for  it  to  be 
amended  so  as  to  cover  that.  That  was  my  object,  fairly  and  honestly,  to  accomplish 
that  result.  That  I  believe  to  be  fair  and  reasonable  regulation  and  supervision  of 
corporations.  The  majority  article  gives  control  and  direction,  which  I  think  is  wrong. 
The  minority  article  gives  regulation  and  supervision,  which  I  believe  protects  every 
just  right  of  the  people  of  Virginia,  and  I  want  to  see  every  right  of  these  people  pro- 
tected, but  I  want  to  see  it  done  with  justice  to  all  the  other  interests  of  the  Common- 
wealth of  Virginia. 

Mr.  Meredith:  Now,  m.y  question  is  whether  you  object  to  the  exercise  of  this 
common  law  right,  or  whether  you  object  to  the  manner  in  which  it  is  exercised. 

Mr.  Hunton:  I  object  to  the  manner,  and  I  object  to  doing  it  at  all,  so  far  as 
the  control  and  management  is  concerned.  So  far  as  the  regulation  and  supervision 
is  concerned,  I  deem  it  wise  and  prudent,  and  think  it  ought  to  be  done.  I  cannot 
make  myself  any  clearer  upon  those  questions. 

Mr.  Kendall:  Would  you  object  to  having  before  the  court  the  evidence  taken 
before  the  commission? 

Mr.  Hunton:    Not  the  least  bit  on  earth. 

Mr.  Kendall:  And  would  you  object  to  giving  the  commission  the  power  of 
restraining  ei^dence  before  the  court? 

Mr.  Hunton:  I  would  not  like  to  give  to  the  commission  the  power  to  determine 
what  evidence  should  go  before  the  court.  I  would  be  perfectly  billing  for  the  com- 
mission to  take  the  evidence  and  certify  all  the  evidence  to  the  court,  or  to  certify 
agreed  facts,  or  to  certify  evidence  where  there  was  none  in  conflict  with  it;  but  1 
would  not  think  it  proper  or  wise  or  prudent  or  just  to  give  to  a  court  from  which 
3^ou  are  going  to  take  an  appeal  the  right  to  say  what  evidence  they  would  send  up 
and  what  they  would  suppress  and  omit  from  the  court. 

Mr.  Kendall:  Would  you  object  to  the  provision  of  the  majority  report  that  the 
court  should  have  power  to  refer  back  the  matter  for  further  investigation? 

Mr.  Hunton:    Not  the  least  bit  on  the  face  of  the  earth. 

Mr.  Kendall:  And  to  take  that  provision  in  place  of  having  any  evidence  heard 
de  novo  in  the  court? 

Mr.  Hunton:    Yes,  sir. 

Now,  gentlemen  of  the  committee,  it  is  the  practice  to  discount  arguments  such 
as  this  by  saying  this  is  the  argument  of  corporation  lawyers,  and  many  people  deem 
that  the  entire  answer  to  such  an  argument.  I  believe  I  would  not  be  just  to  myself 
if  I  did  not  in  some  way  respond  to  that  suggestion  that  I  have  seen  evidenced  more 
than  once  upon  the  floor  of  this  body;  and  it  is  miy  apology  to  the  chairman  and  the 
members  of  the  committee  for  being  somewhat  personal  and  speaking  of  my  own 
matters. 

I  have  been  for  a  number  of  years  counsel  for  the  Southern  Railroad  Company. 
That  relation  was  severed  more  than  a  year  ago,  I  believe — to  be  accurate,  on  the 
12th  day  of  Januar3%  1901.  TMien  I  came  to  the  Convention  I  represented  no  corpora- 
tion on  earth,  and  had  no  reason  to  believe  that  I  ever  would,  except  from  the  fact 
that  I  believed  that  my  service,  extending  over  a  very  considerable  period,  had  been 
satisfactory  to  the  clients  whom  I  had  represented.  Since  that  time,  and  many  months 
after  the  Convention  had  begun  its  sessions,  other  business  arrangements  were  made 
by  me  which  have  made  me  the  representative  of  a  number  of  corporations.  The  views 
that  I  entertain  now  are  those  that  I  entertained  when  I  represented  none.  My  posi- 
tion upon  this  Committee  on  Corporations  was  not  of  my  seeking,  and  when  the 
honorable  President  of  this  body  tendered  to  me  that  position  I  objected  and  demurred 
to  it,  because  I  had  represented  corporations.  It  was  only  when  he  urged  that  I  should 
accept  the  position  that  I  consented  to  do  it  and  having  accepted  that  responsibility, 


2194  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  am  here  before  this  body  to  do  my  duty  as  I  see  it  in  the  sight  of  God  and  of  man. 
I  shrink  not  from  that  duty,  unpleasant  though  it  may  be,  unpopular  though  I  know  it 
is,  from  any  such  suggestion  that  may  come;  and  I  thank  God  that  I  believe  from  the 
courtesy  and  consideration  with  which  I  have  been  treated  by  each  and  every  indi- 
vidual of  this  body,  that  there  is  none  who  believes  that  I  stand  upon  the  floor  of  the 
Convention  to  represent  the  interest  of  any  corporation,  but  that  I  Jtand  here  to  do 
what  is  right  as  it  seems  to  me,  whether  they  may  agree  with  me  in  those  conclusions 
or  not. 

I  want  to  say  that  I,  for  one,  do  not  believe  that  I  cannot  pass  reasonably  fairly 
upon  this  question.  I  know  that  when  the  question  was  raised  as  to  whether  corpora- 
tions should  not  pay  a  greater  sum  to  the  suport  of  the  government  of  the  State. 
I  earnestly  believed  they  should  pay  an  increased  burden,  and  I  think  that  in  an  humble 
way  I  have  done  something  to  bring  about  that  result. 

I  had  not  expected  to  hear  the  action  of  the  corporations  upon  that  important  mat- 
ter used  as  it  has  been  used  by  the  gentleman  from  Augusta.  Surely  their  conduct  in 
that  respect  must  commend  itself  to  fair  and  reasonable  men.  The  representatives  of 
the  corporations  came  forward  before  your  committee  and  said  they  could  and  were 
willing  to  bear  an  increased  burden  in  the  way  of  taxation  of  over  a  quarter  of  a 
million  dollars.  The  gentleman  from  Augusta  says  because  of  that  fact  you  should  put 
additional  burdens  and  hardships  upon  them. 

I  go  one  step  further,  gentlemen  of  the  committee.  I  think  it  is  natural  that  those 
who  have  come  in  contact  with  corporations  and  are  familiar  with  their  affairs  should 
know  more  about  their  practical  operation  than  those  who  have  not,  and  that  when  they 
come  before  a  body  of  this  sort  this  body  should  accept  and  receive  not  as  true,  but  that 
they  should  give  ear  and  uncommitted  ear  and  hearing  to  the  facts  and  arguments  they 
produce.  If  there  is  nothing  in  the  life  and  the  character  and  the  history  of  the 
man  v/ho  produces  them,  there  should  be  but  one  question  asked,  and  one  alone,  and 
that  is,  is  he  prejudiced  by  his  connection  with  thisi  or  that  or  the  other  corporation? 
They  should  take  his  arguments  and  say  whether  they  are  right  or  sound,  or  whether 
they  are  sophistical  and  false.  Upon  this  question,  so  strong  v/as  my  feeling  and  con- 
viction that  I  sought  a  conference  with  a  dear  and  intimate  friend,  a  lawyer  of  ability, 
whose  name  is  known  to  each  and  every  member  of  the  Convention,  if  he  is  not  per- 
sonally known  to  them.  I  went  to  him  and  I  said,  "Is  it  possible  I  am  prejudiced  in 
this  matter,  or  is  this  populism  run  mad?"  That  gentleman  was  never  connected  with 
any  corporation  in  the  State  of  Virginia,  nor,  so  far  as  my  knowledge  goes,  anywhere 
else.  When  he  told  me  it  was  not  prejudice,  that  it  wasi  a  conviction  of  his  mind  as 
well  as  of  mine,  I  felt  I  had  the  right  to  come  and  ask  this  body  to  consider  in  a  judicial 
manner  these  arguments  upon  this  vast  and  important  question. 

I  shall  not  further  consider  the  merits  of  these  two  reports.  I  have  endeavored 
to  show  that  the  principles  involved  in  the  majority  report  are  vicious  and  wrong,  and 
that  the  fair  regulation  and  supervision  are  provided  for  in  the  minority  report.  I 
have  addressed  myself  to^  pointing  out  those  facts.  I  shall  now  undertake  to  address 
an  argument  of  a  different  character  to  the  Convention  an  argument  which  in  my 
judgment  should  make  those  who  approve  of  the  principles  of  the  majority  report 
pause  and  consider  before  they  attempt  to  engraft  it  into  the  organic  law  of  the 
State  of  Virginia. 

My  friend  from  Augusta,  in  his  argument  on  yesterday,  referred  to  the  fact  that 
he  was  informed  the  railroads  were  tired  of  being  in  politics..  I  know  not  what  their 
opinions  may  be,  but  I  know  what  my  opinion  is  as  a  citizen  of  Virginia,  and  I  know 
what  should  be,  and  what  I  believe  is,  the  opinion  of  all  true  and  good  Virginians.  It 
is  that  the  effect  of  the  participation  of  the  corporations  of  Virginia  in  the  personal 
politics  of  Virginia  has  been  demoralizing  and  debauching,  second  only  to  the  presence 
of  the  negro  vote  in  the  electorate.  I  know  that  one  of  the  strongest  incentives  to  me 
to  come  to  this  body,  next  to  that  of  trying  to  free  us  from  the  horrors  of  the  Fifteenth 
Amendment,  was  to  do  all  in  my  power  to  keep  the  railroads  of  Virginia  out  of  the 


DEBATES  OE  THE  CONSTITUTIONAL  COXVEXTIOX  OE  VIRGINIA.  2195 

politics  of  Virginia  believing  that  they  had  been  largeb.^  responsible  for  the  present 
demoralization  of  political  sentiment  and  political  tone  in  the  Commonwealth. 

I  will  unite  with  my  friend  from  Augusta  or  any  other  man  or  set  of  men  who  will 
intelligently  undertake  to  stop  that  which  I  believe  to  be  a  wrong  to  the  people  of  the 
Commonwealth.  I  believe  that  I  can  see  when  these  corporations  do  wrong.  I  wish  when 
wrongs  are  done,  to  correct  those  wrongs,  and  though  I  may  represent  them,  I  have 
the  courage  to  speak  out  and  denounce  the  wrongs  of  which  they  have  been  guilty 
I  also  wish  to  appeal  to  an  intelligent  body  of  Virginians  not  to  let  prejudices  growing 
out  of  that  condition  of  affairs  swing  the  pendulum  too  far  and  make  you  do  wrong 
as  well,  and  be  guilty  of  injustice  to  them.    Two  wrongs  never  made  a  right. 

I  have  united  with  the  distinguished  chairman  of  the  Committee  on  the  Legisla^ 
tive  Department  in  every  efiort  to  take  the  temptation  from  them  to  interfere  with 
the  General  Assembly  of  the  Commonwealth.  The  first  and  only  real  thing  that  I  have 
ever  proposed,  except  this  minority  report  to  the  Committee  on  Corporations  was  the 
article  to  prohibit  the  issue  of  charters  by  special  laws  of  the  General  Assembly,  that 
we  might  prevent  the  disgraceful  scenes  we  have  been  told  of,  at  least,  in  the  public 
press  relating  thereto.  '  Everything  I  can  do  as  a  member  of  this  body  to  prevent  that 
baleful  influence  shall  be  done,  not  for  railroads,  though  I  believe  it  is  an  infinite 
benefit  to  them,  and  I  believe  the  leading  railroad  men  of  the  State  are  exceedingly 
anxious  to  keep  out  this  baleful  miasm  and  to  devote  themselves  to  the  honest 
business  of  the  development  of  their  roads. 

Ah,  I  say  to  my  friend  from  Augusta  that  your  railroad  commission  may  take  them 
from  the  Legislature,  and  so  does  the  minority  report;  but  VN^here  does  it  put  them? 
^Yhat  is  the  inducement  held  out  to  them,  in  having  this  commission  appointed  by  the 
Governor?  Suppose  you  take  two  rival  candidates  for  Governor  and  enter  them  in 
the  race.  Their  positions  are  known.  They  are  stumping  the  State.  One  expresses 
conservative  views,  the  other  wild  view^s;  the  one,  we  may  say,  the  distinguished  gen- 
tleman from  Augusta,  and  another  a  man  of  known  conservative  views.  ViHiat  would 
be  the  effect  of  it?  Would  not  the  majority  plan  be  an  invitation  so  strong  that 
corporations  would  come  in  and  throw  their  weight  against  the  gentleman  from 
Augusta.  Is  not  his  proposition  an  inducement  to  do  this?  Is  it  not  an  incentive? 
I  tell  you,  gentlemen  of  the  Committee,  it  is  a  sad  commentary  upon  Virginia  that  such 
things  are.  We  want  to  have  higher  politics.  We  want  to  purify  the  electorate.  We 
want  to  give  to  Virginia,  God  bless  her,  all  the  purity  and  honesty  and  integrity  of 
the  olden  time.  You  come  in  here  offering  a  reward  for  the  continuance  of  just  such 
conduct  as  has  been  going  on  in  the  State  of  Virginia,  more  or  less,  for  years. 

One  other  thing,  gentlemen  and  I  have  finished.  I  feel  a  deep  interest  as  a  citizen 
in  the  success  of  this  Convention.  T  believe  the  Constitution,  as  far  as  has  been 
permanently  passed  upon  by  this  body,  is  an  admirable  one.  I  believe  it  will  increase 
the  revenues  of  the  State  largely  over  a  quarter  of  a  million  dollars.  I  believe  it  will 
reduce  the  expenditures  of  the  State  a  very  considerable  sum.  I  believe  that  under 
any  wise  and  economical  administration  of  our  affairs,  if  the  reforms  adopted  in  this 
Constitution  avail  and  become  effective,  the  time  is  not  far  distant  when  the  General 
Assembly  will  be  able  to  reduce  the  tax  rate  from  forty  cents  to  thirty  cents  on  the 
$100  of  property.  I  believe  I  feel  as  deep  an  interest  in  the  adoption  and  the  success 
of  this  measure  as  anybody  upon  this  floor.  I  feel  sure  that  I  have  made  as  great 
sacrifices  in  proportion  to  my  means,  in  order  to  give  sendee  to  this  body  as  any  body 
within  the  sound  of  my  voice.  I  know  that  since  we  met  on  the  13th  day  of  June 
last,  I  have  been  absent  but  once  from  this  body  in  order  to  give  attention  to  my 
own  personal  business  and  then  but  for  two  days. 

Nov%  gentlemen  of  the  committee,  I  am  sure  that  those  who  know  me  will  feel  and 
believe  that  I  merely  wish  to  call  the  attention  of  this  body  to  a  danger  they  are 
encountering.  You  heard  the  declaration  of  my  friend  from  Augusta,  in  regard  to  the 
intermeddling  of  the  railroads  in  the  legislation  of  the  State.  V^Tiat  will  be  its  effect 
on  the  work  of  this  body,  should  the  majority  report  be  adopted  as  the  permanent 


■2196 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


law  of  the  Commonwealth  of  Virginia?  Think  you  not  it  will  endanger  the  good 
work  that  has  been  done  by  this  body?  Think  you  not  it  will  endanger  the  refonns 
that  have  been  ihausnirated?  Think  you  not  that  it  will  affect  votes,  whether  for 
proclamation  or  submission?  Think  you  not,  should  this  instrument  be  submitted 
to  the  present  or  a  restricted  electorate,  with  these  radical  and  uncalled  for  provisions 
in  it,  that  these  corporations  would  not  furnish  the  money  and  the  brains  tO'  marshall 
all  the  dissatisfied  people  of  the  State  against  this  Constitution  and  prevent  its  ratifica- 
tion by  the  people  when  submitted  to  them?  I  beg  you,  my  friendsi,  to  consider  these 
matters,  to  consider  them  earnestly  and  carefully,  as  Virginians.  I  beg  you  to  dismiss 
from  your  minds  any  feeling  as  to  being  committed  upon  this  subject.  I  beg  you  to 
consider,  calmly  and  judicially,  what  has  been  said  and  what  may  be  said,  and  to  pass 
upon  it,  not  upon  popular  clamor,  not  as  to  what  may  be  popular  or  what  may  be 
unpopular,  but  to  deal  with  it  as  statesmen  and  Virginians  should  deal  with  this 
great  question,  far  reaching  in  its  consequences,  and  which  may  affect  the  material 
interests  of  the  State  for  years  to  come. 

I  thank  you,  and  I  regret  that  it  has  been  necessary  to  consume  so  much  of  your 
time.  (Applause.) 

Mr.  Ingram:  Mr.  Chairman,  and  gentlemen  of  the  committee,  I  feel  a  great 
hesitancy,  and  a  certain  amount  of  diffidence,  in  replying  to  the  very  able  and  the  very 
courteous  speech  that  has  been  made  by  the  gentleman  from  Fauquier  (Mr.  Hun  ton). 
I  gather  inspiration  rather  from  the  cause  which  I  shall  present  for  your  consideration, 
than  from  any  sense  of  my  own  ability  to  compete  with  a  gentleman  so  learned,  so 
long  trained  along  the  lines  which  he  has  discussed  before  this  committee. 

At  the  outset  of  my  remarks  I  desire  to  be  distinctly  understood  as  voicing  no 
grievance  of  my  own,  and  as  representing  upon  this  floor  the  particular  grievance  of 
no  man;  but  I  speak,  as  I  conceive  it,  in  the  interests  of  all  of  the  people  of  Virginia, 
whether  they  be  merchants  or  manufacturers,  whether  they  be  agriculturists  or 
mechanics.  There  is  going  on,  and  there  will  go  on  for  many  years  to  come  that 
which  has  been  termed  and  justly  termed,  an  irrepressible  conflict  between  the  rights 
of  the  people  on  the  one  side  and  the  rights  of  the  great  corporations  on  the  other. 

In  no  sense  dO'  I  intend  to  appeal  to  your  popular  prejudices,  but  I  state  to  you  that 
as  a  fact  in  the  evolution  of  things  this  necessarily  is  true.  Some  years  since  in  this 
very  hall,  I  heard  a  distinguished  justice  of  the  Supreme  Court  of  the  United  States — 
Justice  Brown — say  that  the  questions  that  were  arising  before  that  court  were  no 
longer  question  of  constitutional  construction  along  partisan  lines,  but  rather  that 
great  social  and  economic  questions  were  coming  before  that  court  for  their  solution. 
In  this  sense,  Mr.  Chairman,  and  gentlemen  of  the  committee,  I  say  that  this  conflict 
is  going  on  and  will  go  on  as  these  new  agencies  multiply  and  increase.  The  argu- 
ment has  been  before  made  on  the  floor  of  this  committee  and  in  this  Convention,  time 
and  time  again,  warning  us  in  language  unmistakable,  that  we  must  avoid  legislation 
in  our  organic  law.  If  these  gentlemen  are  to  be  believed,  the  constitution  which  is 
to  be  enacted  by  us  must  be  the  veriest  skeleton  that  ever  swung  or  hung  in  the  eyes 
of  any  people.  We  are  told  that  Mr.  Jefferson  would  not  have  done  this,  that  Mr. 
Madison  would  not  have  done  that.  In  the  days  of  Jefferson,  corporations  were 
practically  unknown. 

But,  gentlemen  of  the  committee,  there  was  never  a  greater  slander  of  a  great 
man  than  the  charge  that  Mr.  Jefferson  would  have  failed  to  have  done  anything  and 
•all  things  necessary  for  the  protection  of  the  interests  of  the  people  of  the  Common- 
wealth of  Virginia.  Mr.  Jefferson  it  was  who  abolished  the  right  of  primogeniture 
in  Virginia.  Mr.  Jefferson  it  was  who  prevented  the  continuance  of  estates  tail  in 
Virginia.  Mr.  Jefferson  it  was  who  as  president  of  the  United  States  had  the  boldness 
to  acquire  the  State  of  Louisiana,  and  the  territory  west  of  the  Mississippi,  and  if  he 
were  here  to-day  in  his  living  presence  he  would  not  hesitate,  conservatively  and 
bravely,  to  take  his  stand  in  the  defense  of  the  liberties  and  the  rights  of  the 
individuaL 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIEGIXIA. 


2197 


We  are  told  that  there  is  no  necessity  for  this;  we  are  told  that  the  legislation 
along  this  line  in  the  past  has  been  sufficient;  we  are  told  that  there  is  no  demand  for 
this;  we  are  pleasantly  told  that  we  stand  as  the  leaders,  of  populism,  and  that  Vir- 
ginia would  be  put  in  the  front  rank  of  radical  States.  I  might  reply  to  these  gen- 
tlemen that  whenever  the  liberties  of  the  citizen  or  the  individual  were  at  stake,  Vir- 
ginia has  always  taken  her  position  in  the  front  rank  of  radical  States.  (Applause.) 

It  was  Virginia  which  first  dared  to  defy  the  tyranny  and  oppression  of  old 
England.  Virginia  is  not  a  laggard,  has  never  been  a  laggard,  and  never  will  be  a 
laggard,  in  the  defense  of  the  liberties  of  her  citizens;  and  Virginians,  under  the 
influence  of  such  legislation  will  not  shrink  from  doing  that  which  is  right  and  proper, 
as  they  conceive  it  to  be  in  the  premises. 

This  committee,  of  which  I  am  an  humble  member,  for  months  had  under  inves- 
tigation this  very  important  subject.  I  take  occasion  to  say  here  that  I  never  saw 
men  more  willing  to  get  the  views  and  advice  of  experts  in  every  line.  With  an  industry 
and  energ}'  that  was  unflagging,  they  devoted  the  best  energies  they  possessed  to 
treat  fairly  and  conservatively  the  measures  before  them  for  investigation,  and  as  a 
result  of  those  investigations-  they  have  before  this  committee  their  two  reports,  one 
called  the  majority  one  called  the  minority  report.  The  minority  of  the  committee  is 
composed  of  the  gentleman  from  Fauquier  (Mr.  Hunton)  and  my  very  good  friend  from 
Norfolk  (Mr.  Brooke),  and  I  believe  the  gentleman  from  Wythe  (Mr.  Blair)  concurs 
in  the  provisions  of  the  minority  report  in  certain  respects,  and  in  the  majority  report 
in  others. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  not  in  the  opening  discuss 
the  majority  report.  That  was  discussed  so  fully,  so  fairly,  and  so  ably  by  the  gen- 
tleman who  represents  the  county  of  Augijsta  (Mr.  Braxton),  or  who  is  one  of  the 
representatives  from  that  distinguished  county,  that  I  shall  not.  certainly  at  this  time, 
discuss  the  provisions  of  that  report.  But  I  shall  begin  where  the  gentleman  from 
Fauquier  (Mr.  Hunton)  left  off,  and  will  discuss  his  substitute,  the  report  of  the 
minority. 

It  is  related  that  on  the  famous  field  when  England's  cruel  and  great  king  was 
sorely  pressed,  as  he  was  marshalling  his  forces  for  the  fray,  some  man  brought  up- 
to  him  a  scroll  upon  which  was  written: 

Jockey  of  Norfolk  be  not  too  bold. 

For  Dickson,  thy  Master,  was  bought  and  sold. 

Hurling  it  back  into  the  face  of  the  bearer  he  fairly  hissed  between  his  teeth: 

A  trick  devised  by  the  enemy. 

Now,  in  no  sense,  in  no  offensive  sense,  do  I  mean  that  this  substitute  is  a  trick, 
The  gentleman  who  prepared  it  are  too  high  and  honorable  to  have  it  so  designated; 
and  yet  I  tell  you,  gentlemen  of  the  committee,  that  it  is  a  device  as  flimsy  as  the 
paper  upon  which  it  is  written.  It  is  neither  new  nor  novel;  it  could  not  be  patented 
under  the  patent  laws  of  the  United  States.  VTiy,  this  is  an  old  friend  of  Virginia, 
this  substitute  of  the  minority  report.  It  is  no  new  thing  that  they  offer.  It  is  a 
bauble  with  VN^hich  the  people  of  Virginia  have  played  for  ten  long  years.  It  is  dis- 
credited upon  the  testimony  of  the  distinguished  railroad  commissioner;  it  has  been 
discredited,  time  and  time  again,  before  our  committee.  VTiat  is  it?  Now,  what  is 
it,  I  ask  you  in  all  seriousness?  What  is  it  that  they  offer  for  a  thing  which  is  ani- 
mate, which  has  life  and  strength? 

VTiat  is  it,  I  say,  in  all  kindness  and  in  all  sincerity,  that  they  offer  and  call  a 
substitute,  to  amend  in  its  place  and  stead?  Let  us  analyze  it.  Passing  by  these  two 
first  sections,  which  apply  to  definitions,  let  us  come  to  the  third  section,  which  is  a 
declaration  that  rates  shall  be  equal,  shall  be  reasonable  and  just,  and  every  unjust 


2198  DEBATES  OF  THE  CONSTITUTIO^s^AL  CONVENTION  OF  VIRGINIA. 

and  unreasonable  charge  for  such  service  is  prohibited  and  declared  to  be  unlawful — 
a  provision  found  in  the  Interstate  Commerce  law;  as  the  gentleman  from  Richmond 
said  this  morning,  a  provision  that  needs  neither  to  be  written  in  the  statute  nor  to 
be  put  in  the  organic  law  of  the  land.  Under  the  common  law  of  this  land,  that 
regulation  belongs  to  the  courts  of  Virginia. 
Then  we  come  to  Section  4: 

No  common  carrier  subject  to  the  provisions,  of  this  article,  shall  directly  or  indi- 
rectly, by  any  special  rate,  rebate,  draw-back,  or  other  device,  charge,  demand,  collect, 
or  receive  from  any  person  or  persons  a  greater  or  less  compensation  for  any  service 
rendered  or  to  be  rendered  in  the  transportation  of  passengers  or  property,  or  in  the 
transmission  of  messages  or  communications,  subject  to  the  provisions  of  this  article, 
than  it  charges,  demands,  collects,  or  receives  from  any  other  person  or  persons  for 
doing  for  him  or  them  a  like  and  contemporaneous  service  in  the  transportation  of  a 
like  kind  of  traffic  or  in  the  transmission  of  messages  or  communications,  under 
substantially  similar  circumstances  and  conditions. 

Except  so  far  as  it  provides  for  the  transmission  of  messages,  and  is  made  to  apply 
to  telegraph  and  telephone  companies  this  "high-low"  that  passes  as  patent-leather, 
this  jack!-daw  that  struts  in  a  peacock  feather"  is  the  same  as  Section  2  of  the  Mason 
act,  which  was  taken  from  the  interstate  commerce  act  and  passed  and  enacted  as 
a  part  of  the  law  of  this  land  in  1892. 

Now,  when  we  come  to  Section  5,  what  do  we  find?  We  find  that  Section  5  is 
the  same  as  Sections  3  and  4  of  this  same  old  discredited  Mason  act,  with  an  exception 
again,  so  far  as  messages  or  communications  are  concerned. 

Now,  when  we  come  to  Section  6,  we  find  that  by  an  inversion  Section  6  is  the 
same  as  Section  1  of  the  same  old  Mason  act. 

Then  when  we  come  to  Section  7  we  find  that  so  far  as  the  constitution  of  this 
commission  is  concerned,  the  provisions  are  similar  and  identical,  I  believe,  with  those 
of  the  majority  report — that  is,  that  the  commissioners  shall  be  appointed  by  the 
Governor,  subject  to  confirmation  by  the  joint  vote  of  the  General  Assembly  of  Vir- 
ginia. There  is  this  condition — the  same  that  we  have  in  our  report — that  the  com- 
missioners are  three  instead  of  one,  as  provided  for  by  the  Mason  act. 

Then  again,  when  we  come  to  the  duties,  which  you  find  in  the  same  section,  of 
making  an  examination  of  the  phvsicaJ  condition  of  the  property,  etc.,  we  find  that  it 
is  the  same  as  Section  1299  of  the  Code,  as  amended. 

If  we  go  a  little  further  we  find  that  this  commission  shall  have  the  right  "  to 
require  such  corporations  to  furnish  information  concerning  the  condition,  manage- 
ment and  operation  of  their  roads,"  which  is  the  same  as  Section  1304,  as  amended, 
of  the  Code  which  you  will  find  compiled  in  the  statute  laws  of  Virginia  as  bearing 
upon  this  question,  possibly  with  some  little  extensions. 

Then  when  you  come  to  that  remedy,  which  is  a  substitute  for  the  drastic  measure 
of  the  majority  report,  which  is  intended  to  meet  conditions,  to  meet  them  fairly  and 
squarely,  and  to  give  relief  to  the  people  of  Virginia,  what  do  we  find?  We  find  that 
these  provisions  as  to  coming  into  the  court,  as  to  having  the  advice  of  the  Common- 
wealth's attorney,  and  as  to  summoning  the  railroads  to  show  cause,  are  provisions 
with  some  little  change  as  to  costs  and  giving  precedence  to  the  cases  over  the  civil 
causes  on  the  docket  of  the  Court  of  Appeals,  substantially  the  same  as  Sections  14, 
15,  16,  and  17  of  this  old  friend  of  ours,  this  same  old  Mason  act  discredited,  I  repeat, 
by  the  testimony  of  the  railroad  commissioner  of  Virginia,  discredited  before  our 
committee  time  and  time  again,  the  virtues  of  which  are  maintained  by  but  one 
reported  case,  and  that  one  which  was  argued  with  conspicuous  ability  by  the  signer 
of  the  minority  report,  the  old  case  of  the  Southern  Railroad  vs.  the  Commonwealth, 
reported  in  98th  Va.  Rep. 

Why,  gentlemen,  catnip  tea!  I  believe  the  gentleman  from  Augusta,  on  yesterday, 
made  some  such  allusion.  I  am  satisfied  the  gentleman  from  Fauquier  alluded  to  it 
In  his   remarks  this  morning.    Catnip   tea!    Horrible!    And   yet,   with  seriousness, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


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with,  impressiyeness,  and  with  incision  as  cutting  as  a  Damascus  blade,  this  splendid 
signer  of  the  minority  report  offers  this  to  the  Constitutional  Convention  of  Virginia 
to  go  into  its  organic  law.  I  am  not  surprised  when  I  hear  that  the  railroads"  desire, 
to  get  out  of  politics.  I  assure  you,  gentlemen  of  the  committee,  that  if  you  put  that 
substitute  into  your  organic  law  as  sure  as  you  are  sitting  in  your  seats  they  will  go 
out  of  politics  for  all  time  to  come  for  there  will  be  no  necessity  for  them  to  remain 
in  politics.  "^Tiy,  gentlemen,  but  for  the  fact  that  I  have  such  confidence  in  and  such 
affection  for  the  gentlemen  who  prepared  and  offered  this  substitute,  I  would  not 
believe  they  were  serious;  but  I  know  that  anything  emanating  from  them,  which 
they  think  is  serious,  is  serious,  because  they  are  high-minded,  lionorable  gentlemen, 
actuated  by  the  highest  and  loftiest  motives.  But  because  they  are  serious  is  no  reason 
why  we  should  be  serious  in  the  sense  of  accepting  their  work,  which  can  bring  no 
good  to  the  people  of  this  old  Commonwealth. 

It  is  not  always  pleasant,  gentleman,  to  discuss  previous  legislation  in 
Virginia.  Xo  man  has  a  higher  regard  for  the  General  Assembly  of  Virginia  than 
I  have.  Some  of  the  highest,  some  "of  the  noblest  and  some  of  the  best  men  I  ever 
knew  were  and  have  been  members  of  it.  If  we  need  any  attestation  to  that  fact,  we 
could  point  to  them  here  and  there  in  different  parts  of  this  hall — splendid  men  who 
now  represent  and  who  have  in  the  past  represented,  with  conspicuous  fidelity  and 
ability,  the  interests  of  the  people  of  Virginia.  But  it  does  seem  to  me  that  the  Legis- 
lature of  Virginia,  for  some  reason,  has  been  too  lax  in  dealing  with  the  great  and 
important  question  of  the  supervision  and  regulation  of  railroads.  This  substitute  was 
enacted  into  the  present  law;  but  yet  we  have  had  in  attendance  upon  this  committee 
and  in  attendance  upon  this  Convention  the  beards  of  trade  and  chambers  of  commerce 
of  nearly  all  the  cities  of  the  Commonwealth — not  populists,  not  men  led  astray  by 
populistic  ideas,  but  merchants,  manufacturers,  men  who  are  interested  as  much  in 
the  material  advancement  and  prosperity  of  the  people  of  Virginia  as  any  man  on  this 
floor,  men  from  the  large  cities,  men  from  the  smaller  cities,  and  all  asking  that  we 
do  something  to  correct  this  serious  and  crying  evil.  We  are  told  that  the  complaints 
which  have  been  made  have  been  complaints  against  rebates;  that  the  matter  of  rates 
has  cut  no  particular  figure,  and  that  all  is  quiet,  and  peace,  and  plenty  abounds 
everywhere;  that  so  far  as  rates  are  concerned,  we  are  making  mountains  out  of 
molehills.  A  distinguished  member  of  this  Convention — I  withhold  his  name — gave  me 
a  letter  which  he  had  received  from  one  of  the  leading  firms  in  a  not  very  distant 
city,  and  gave  me  the  liberty  to  read  it. 

Cannot  you  and  your  colleague — I  will  not  name  him — help  us  in  regard  to  the  rail- 
roads? Ever  since  the  Pennsylvania  Railroad  has  secured  control  of  the  other  roads 
here,  our  freight  has  advanced  50  per  cent.,  and  unless  something  is  done  to  help  us, 
we  do  not  know  what  will  become  of  us.  The  minimum  charge  frcm  New  York  city 
used  to  be  25  cents,  and  now  it  is  60  cents.  Agents,  here  send  us  bills  for  a  higher 
rate  than  the  bill  of  lading  calls  for  and  will  not  correct  them,  and  if  we  do  not  pay 
them  they  charge  us  storage.  So  you  see  they  have  us  where  they  can  treat  us  as 
they  please.  We  hope  you  will  do  all  you  can  to  have  a  clause  inserted  in  the  new 
Constitution  to  curb  these  monopolies. 

This  letter  is  signed  by  one  of  the  leading  merchants  in  a  not  very  distant  city. 

Mr.  Brooke:  Is  there  anything  this  Convention  can  do  which  will  control  the 
interstate  rate  between  Xew  York  and  the  city  to  which  you  refer? 

:\Ir.  Ingram:  Xot  that  I  know  of;  btit  I  would  state  to  the  gentleman  that  the 
interstate  rate  is  doubtless  evidence  of  the  interstate  rates  in  that  State.  I  would  like 
to  call  your  attention  to  the  fact  that  there  are  complaints  coming  to  us  from  all  sides. 
It  is  unnecessary  for  me  to  state  that  we  cannot  control  interstate  rates,  nor  does  the 
article  we  propose  seek  to  control  interstate  rates,.  We  seek  to  control  only  intra- 
state rates.  It  is  idle  for  these  gentlemen  to  argue  on  this  floor  there  are  no  complaints 
coming  from  any  source.  It  is  idle  to  believe  tliat  the  chambers  of  commerce  of 
Petersburg.  Richmond,  and  Danville  would  be  here,  appearing  before  these  committees, 


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DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


and  taking  a  lively  interest  in  the  proceedings  of  this  Convention — taking  a  greater 
interest  in  this  question  probably  than  they  do  in  any  other  save  that  of  suffrage — asking 
that  we  embody  in  our  organic  law  a  provision  giving  the  control,  regulation  and 
fixing  of  rates  on  railroads  to  a  commission  conservatively  formed,  with  an  appeal  to 
our  courts  of  last  report,  if  there  were  no  serious  complaints  in  regard  to  this  matter. 

The  gentleman  from  Fauquier  produced  before  this  committee  that  rates  in  vogue 
in  1901,  I  believe,  on  the  Chesapeake  and  Ohio  road,  and  showed  that  those  rates  were 
lower  than  the  rates  charged  in  the  State  of  Georgia,  lower  than  those  charged  in  the 
State  of  North  Carolina,  there  being  a  commission  in  both  of  those  States — 

Mr.  Hunton:    Lower  than  those  charged  in  South  Carolina,  also. 

Mr.  Ingram:  But  the  gentleman  from  Fauquier  did  not  refute  the  statement  made 
by  the  chairman  of  this  committee  on  yesterday  that  since  those  commissions,  went 
into  operation  the  rates  in  those  States  have  been  lowered. 

Mr.  Hunton:    And  so  they  have  been  in  Virginia,  where  there  was  no  commission. 

Mr.  Ingram:  Yes;  but  on  an  entirely  different  ground.  You  could  not  have 
selected  a  railroad  in  all  this  Commonwealth  that  would  have  served  the  purposes  of 
your  argument  better,  apparently,  than  the  Cheaspeake  and  Ohio.  Mr.  Braxton,  in 
his  magnificent  address  before  our  committee,  pointed  out  the  competition  that  the 
Chesapeake  and  Ohio  road  has  with  the  waterways  of  the  lakes,  and  the  outlets  by 
water,  to  the  sea — what  he  called  "  commercial  competition,"  and  thus  it  is  that  the 
rates  upon  that  road  are  lowered. 

Mr.  Hunton:  Does  my  friend  from  Manchester  mean  to  claim  that  these  forces 
affect  the  local  rates  in  Virginia?  I  can  understand  how  they  would  affect  the  through 
rates,  but  not  how  they  could  effect  local  rates. 

Mr.  Ingram:  I  think  they  affect  the  local  rates.  .We  have  waterways,  intra-state, 
in  Virginia,  which  they  have  not  in  Georgia  or  South  Carolina.  We  have  the  James 
river  and  the  Potomac  river,  and  I  say  that  those  waterways  do  effect  local  rates,  intra- 
state. 

Mr.  Hunton:    Do  they  affect  the  Chesapeake  and  Ohio? 

Mr.  Ingram:  As  far  as  they  com.e  into  competition  with  the  Chesapeake  and 
Ohio  within  the  borders  of  Virginia. 

I  must  say  I  cannot  see  the  potency  of  the  argument  of  the  gentleman  from  Fau- 
quier. It  is  shown  that  rates  have  been  lowered;  and  it  turns  out,  forsooth,  that 
because  of  economical,  natural  and  physical  reasons  the  rates  in  the  State  of  Virginia 
are  lower.  I  cannot  see  the  force  of  that  argument.  It  may  satisfy  him,  and  it  may 
satisfy  you;  but  it  does  not  satisfy  me. 

The  distinguished  gentleman  from  Fauquier  argues,  with  seriousnessi,  the  proposi- 
tion that  by  reason  of  the  constitution  of  this  commission  we  would  have  three  addi- 
tional offices  in  Virginia,  and  such  clerks  and  bailiff  a  as  might  be  necessary;  and  yet 
he  looses  sight  of  the  fact  that  in  the  operation  of  the  substitute  which,  to  my  mind, 
is  totally  inefficient,  he  provides  for  three  of  these  same  offices.  And  so,  if  you  take 
his  argument  from  premise  to  conclusion,  you  will  see  that  it  will  not  bear  the  test  of 
reason  or  searching  inquiry. 

Mr.  Chairman  and  gentlemen  of  the  committee,  this  is  no  new  contest.  I  ask 
you  to  give  me  your  attention,  and  promise  you  that  I  will  not  take  up  much  of  your 
time.  But  I  do  feel  a  great  interest  in  the  enactment  of  this  law  into  our  organic  law. 
So  far  as  I  am  concerned,  I  have  no  fear  about  allowing  it  to  go  into  the  Constitution. 
It  is  already  found  in  the  Constitution  of  two  of  the  Statesi  of  this  Union.  Safeguarded, 
as  it  is,  with  the  right  of  appeal  to  the  Supreme  Court  of  Virginia,  and  with  the  right, 
upon  the  recommendation  of  these  commissioners,  to  make  proper  changes  in  the  rules 
and  regulations  of  the  commission,  I  feel  that  instead  of  doing  an  injustice,  we  will 
have  performed  a  great  service  to  the  people  of  Virginia,  second  only  to  the  proper 
solution  of  the  suffrage  question  by  this  Convention. 

The  truth  is,  gentlemen  of  the  committee,  that  the  people  of  Virginia  have  so  long 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2201 


been  ignorant  of  their  rights  in  regard  to  the  regulation,  supervision  and  control  of 
these  great  corporations  that  occupy  our  highways,  that  they  cannot  really  appreciate 
the  advantages  that  will  come  to  them  by  a  proper  supervision,  regulation  and  control. 

Judge  Black,  than  whom  no  greater  lawj^er  ever  lived  in  America,  in  presenting 
his  great  argimient  before  a  committee  of  the  Senate  of  Pennsylvania  against  the 
monopoly  possessed  by  the  railroads  of  that  State,  lays  down  this  fundamental 
principle: 

But  we,  the  people,  have  rights  of  property  as  well  as  the  corporations,  and  ours 
are — or  at  least  they  ought  to  be — as  sacred  as  theirs.  Between  the  great  domain 
which  we  have  conceded  to  them  and  that  which  still  belongs  to  us,  the  line  is  plainly 
and  distinctly  marked,  and  if  they  cross  it  for  purposes  of  plunder,  they  should  be 
driven  back  under  the  lash  of  the  law.  It  is  not  the  intent  of  the  amended  Constitu- 
tion, nor  the  desire  of  those  who  demand  its  enforcement,  to  do  them  the  slightest 
injury.  We  only  ask  for  that  impartial  and  just  protection  which  the  State,  as 
parens  patriae,  owes  to  us  not  less  than  to  them. 

In  the  first  place,  it  will,  I  think,  be  admitted  by  all  impartial  persons  of  average 
intelligence  that  the  companies  are  not  the  owners  of  the  railroads.  The  notion  that 
they  are  is  as  silly  as  it  is  perniciousi.  It  is  the  duty  of  every  commercial,  manu- 
facturing or  agricultural  State  to  open  thoroughfares  of  trade  and  travel  through  her 
territory.  For  that  purpose  she  may  take  the  property  of  citizens  and  pay  for  the 
work  out  of  her  treasury.  AMien  it  is  done,  she  may  make  it  free  to  all  comers,  or  she 
may  reimburse  the  cost  by  levying  a  special  tax  upon  those  who  use;  or  she  may  get 
the  road  built  and  opened  by  a  corporation  or  an  individual,  and  pay  for  it  by  per- 
mitting the  builder  to  collect  tolls  or  taxes  from  those  who  carry  and  travel  on  it 
Pennsylvania  has  tried  all  these  methods  with  her  turnpikes,  canals  and  railroads. 
Some  have  been  made  at  her  ovrn  cost  and  thrown  open  to  them;  on  others,  made  by 
herself,  she  placed  officers  to  collect  a  special  tax;  others  have  been  built  for  her  by 
contracts,  in  wihch  some  natural  or  artifical  person,  agreed  to  do  the  work  for  the 
privlege  of  appropriating  the  taxes  which  she  authorized  to  be  levied.  But  in  all 
these  cases  the  proprietary  right  remained  in  the  Stare,  and  was  held  by  her  in  trust 
for  the  use  of  the  people. 

But,  on  the  other  hand,  the  corporations  deny  that  they  owe  any  responsibility  to 
the  State,  other  than  individuals  engaged  in  private  business.  They  assert  that  the 
management  of  the  railroad,  being  a  mere  speculation  of  their  own,  these  thorough- 
fares of  trade  and  travel  must  be  run  for  their  interest  without  regara  to  public  right. 
If  they  take  advantage  of  their  power  to  oppose  the  labor  and  overtax  the  land  of  the 
State;  if  they  crush  the  industry  of  one  man  or  place  to  build  up  the  prosperity-  of 
another;  if  they  plunder  the  rich  by  extortion,  or  deepen  the  distress,  of  the  poor  by 
discriminating  against  them,  they  justify  themselves  by  showing  that  all  this  was  in 
the  way  of  business.;  that  their  interest  required  them  to  do  it;  that  if  they  had  done 
otherwise,  their  fortunes  would  not  have  been  so  great  as  they  are;  that  it  was  the 
prudent,  proper  and  successful  m.ethod  of  managing  their  own  affairs.  This  is  their 
universal  answer  to  all  complaints.  Their  protests  against  legislative  intervention  to 
protect  the  public  always  takes  this  shape,  v/ith  more  or  less  distinctness  of  outline. 
In  whatever  language  they  clothe  their  argument,  it  is  the  same  in  substance  as  that 
with  which  Demetrius,  the  silversmith,  defended  the  sanctity  of  the  temple  from  v/hich 
he  made  shrines,  "  Sirs,  ye  know  that  by  this  craft  we  have  wealth." 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

On  motion  of  Mr.  Waddill  the  Convention  adjourned  until  to-morrow,  Thursday, 
February  6,  1902,  at  10  o'clock  A.  M. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer       Rev.  Richard  Mcllwaine,  D,  D. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations. 
Mr.  Keezell  in  the  chair. 


139— Const.  Deb. 


2202 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


THURSDAY,  February  6,  1902, 

The  Chairman:  The  business  before  the  committee  is,  the  report  of  the  Com- 
mittee on  Corporations,  and  the  gentleman  from  Manchester  (Mr.  Ingram)  has  the 
floor. 

Mr.  Ingram:  Mr.  Chairman  and  gentlemen  of  the  committee,  when  I  closed  my 
remarks  on  yesterday  I  was  about  to  read  from  the  speech  of  Judge  Black,  made  before 
the  Judiciary  Committee  of  the  Senate  of  Pennsylvania,  against  what  he  termed  railroad 
monopoly.  It  is  important,  in  my  judgment,  that  these  fundamental  rights  of  the  State, 
with  reference  to  the  control  of  common  carriers,  should  be  distinctly  understood 
by  this  committee  in  order  to  properly  decide  between  the  two  reports  now  pending 
before  it. 

Judge  Black  lays  down  the  rule,  which  is  familiar  to  every  lawyer,  that: 

The  functions  of  railroad  corporations  are  as  clearly  defined,  and  ought  to  be  as 
universally  understood,  as  those  of  any  servant  which  the  State  or  general  Govern- 
ment employs.  Without  proprietary  right  in  the  highwaysi,  they  are  appointed  toi 
superintend  them  for  the  owners.  They  are  charged  with  the  duty  of  seeing  that 
every  needed  facility  for  the  uses  of  those  thoroughfares  shall  be  furnished  to  all 
citizens,  like  the  justice  promised  in  Magna  Charta,  without  sale,  denial,  or  delay. 
Such  services,  if  faithfully  performed,  are  important  and  valuable,  and  the  compen- 
sation ought  to  be  a  full  equivalent;  accordingly,  they  are  authorized  to  pay  them- 
selves by  levying  upon  all  who  use  the  road  a  tax  or  toll  or  freight  sufficient  for 
that  purpose. 

But  this  tax  must  be  reasonable,  fixed,  certain  and  uniform,  otherwise  it  is  a  fraud 
upon  the  people,  which  no  department  of  the  State  government,  nor  all  of  them  com- 
bined, has  power  to  legalize. 

Says  he:  ^ 

Three  or  four  years  ago  a  committee  of  the  United  States  Senate  collected  the 
materials,  and  made  a  report  upon  this  general  subject,  in  v/hich  they  showed  that 
an  excess  of  5  cents  per  hundredweight  charged  on  the  whole  agricultural  crop  of 
the  then  current  year  would  amount  to  $70,000,000.  Upon  the  crop  of  the  last  year 
it  would  doubtless  come  nearer  to  $100,000,000.  The  railroads  would  not  get  this  sum, 
because  not  near  all  of  it  is  carried,  but  it  would  operate  as.  an  export  tax  operates; 
that  is  to  say,  the  producer,  the  consumer,  or  the  intermediate  dealer,  would  lose  that 
amount  on  the  whole  crop,  carried  or  not  carried.  In  1880  the  charges  from  Chicago 
to  the  Eastern  markets  were  raised  from  10  cents  per  hundredweight  to  35  cents,  the 
latter  rate  being  unquestionably  twice  as;  high  as  a  fair  one.  You  can  count  from 
these  data  the  terrible  loss  sustained  by  the  land,  labor  and  trade  of  the  country.  It 
was  the  end  and  the  attainment  of  a  combination  still  subsisting  between  the  great 
trunk  lines,  as  they  are  called,  to  pool  their  receipts  to  stop  all  competition,  to  unite 
the  stealing  power  of  all  into  one  grand  monopoly,  and  put  the  whole  crop  at  their 
mercy.    It  was  a  criminal  conspiracy  by  the  common  and  statute  law  of  all  the  States. 

The  magnitude  of  these  excessive  charges  is  not  the  worst  thing  about  them. 
The  corporations  think  it  perfectly  right  to  raise  or  lower  the  freight  as  they  please, 
without  regard  to  the  rights  or  interest  of  anybody  but  themselves.  A  grain  grower, 
manufacturer,  miner,  or  merchant,  who  can  sell  his  goods  at  a  profit,  if  he  can  get 
them  carried  at  the  rates  of  to-day,  may  find  himself  ruined  to^-morrow  by  an  increase 
which  did  not  enter  into  his  calculations.  A  rise  in  the  market  insures  not  to  the 
benefit  of  the  producer,  but  to  the  use  of  the  carrying  corporations,  which  openly  avow 
that  their  rule  is  to  charge  in  all  cases  as  much  "as  the  traffic  will  bear;"  that  is  to 
say,  as  much  as  the  shipper  can  submit  to  without  being  driven  entirely  off  the  road. 
You  must  see  plainly  that  this  power  to  depress  agriculture,  to  diminish  the  profits  of 
manufacturing  industry  and  to  skin  the  commerce  of  the  whole  country  by  the 
arbitrary  use  of  a  sliding  scale  from  freights  cannot  safely  be  trusted  to  human  hands, 
and  especially  not  to  irresponsible  corporations,  whose  interest,  as  well  as  their 
acknowledged  principle  of  action,  constantly  impel  them  to  abuse  it.    Can  it  be — 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2203 


He  adds — 

That  a  Pennsylvania  Legislature  will  hesitate  to  curb  the  career  of  this  destruc- 
tive monopoly  by  adjusting  the  charges  according  to  some  rule  equitable,  fixed  and 
certain? 

But  even  this  sinks  into  insignificance  compared  with  the  wrong  and  evil  of  their 
discriminations.  Common  justice,  sound  policy,  every  sense  of  duty,  the  whole  spirit 
and  letter  of  the  law,  require  them  to  give  every  man  equal  facilities  in  the  use  of  the 
roads,  and  to  charge  them  at  the  same  rates  for  the  same  class  of  goods,  according 
to  weight  and  distance.  There  can  be  no  possible  doubt  about  this.  Every  unpre- 
judiced man  who  has  sense  enough  to  know  his  right  hand  from  his  left,  acknowledges 
that  equality  must  be  the  rule  of  right;  and  he  understands  this  perfectly  well  without 
looking  at  the  Constitution,  where  it  is  solemnly  declared  to  be  part  of  the  lex  legum, 
the  law  of  laws,  and  the  rule  of  all  rules  on  the  subject.  Yet  this  sacred  principle 
is  constantly  and  steadily  violated,  trampled  under  foot  and  treated  with  heartles^s 
contempt. 

At  the  slighest  glance  you  will  see  the  enormous  injury,  direct  and  consequential, 
which  these  discriminations  inflict  upon  the  public.  A  man  who  invests  his  capital, 
or  employs  his  time  in  mining  or  manufacturing,  can  be  driven  into  bankruptcy  at  any 
time  by  a  discrimination  against  him  and  in  favor  of  his  competitors.  This  is  done 
every  day  and  all  the  time,  not  in  a  few  cases  here  and  there,  but  systematically  and 
regularly,  whenever  a  carrying  monopoly  conceives  that  its  own  interests  can  be  pro- 
moted in  that  nefarious  way;  and  it  will  continue  to  be  done  until  the  prohibition  of 
the  Constitution  is  enforced  by  penal  enactment. 

But  he  adds: 

Perhaps  the  most  remarkable,  certainly  the  boldest  thing  about  the  discriminations 
we  complain  of,  is  that  they  are  always  avowedly  made  against  those  who  are  least 
able  to  endure  the  wrong.  A  heavy  grain-dealer  in  the  West,  who  ships  his  millions, 
may  get  rates  ninety  per  cent,  below  those  extorted  from  a  Pennsylvania  farmer,  with 
only  a  thousand  bushels  to  carry.  Between  all  rivals  of  unequal  fortune,  the  railway 
king  is  ever  strong  upon  the  stronger  side,  and  never  fails  to  make  his  discrimina- 
tion against  the  weaker  concern  whose  business  is  conducted  on  the  smaller  scale. 
In  my  town  of  York  the  demand,  saysi  he,  of  some  very  rich  manufactures  for  lower 
rates  has  been  conceded  with  gratifying  promptness;  but  you  might  as  well  plead  pity 
with  a  wolf  as  ask  this  monopoly  to  relieve  a  starving  laborer  by  taking  the  excessive 
charges  off  his  bread  and  fuel.  Indeed,  if  the  tariffs,  of  railway  charges  be  founded 
in  any  rule  at  all,  it  is  this:  That  all  rates  shall  be  high  in  the  inverse  proportion 
to  the  magnitude  of  the  cargo  and  the  distance  it  is  carried;  the  practical  effect  of 
v^^hich  is  to  grind  the  face  of  the  small  trader  that  the  great  one  may  increase  in  fat- 
ness. 

The  only  argument  they  make  against  the  equality  of  rates  commanded  in  the 
Constitution  is  that  they  cannot  afford  it;  that  they  must  charge  higher  for  short 
hauls  and  light  loads,  or  else  their  compensation  will  be  less  than  for  the  greater 
service.  If  this  were  true,  it  would  be  no  ground  of  justification.  But,  in  point  of 
fact,  it  is  wholly  untrue.  It  is  not  more  difficult  or  costly  to  carry  a  hundred  tons 
for  fifty  shippers  than  it  would  be  to  carry  the  same  goods  for  one.  The  expenses  to 
the  reception  and  discharge  of  a  cargo  may  be  greater  in  proportion  for  short  hauls 
than  from  long  ones,  but  you  can  make  that  all  even  by  allowing  them  to  charge  in 
addition  to  their  m^ileage,  for  loading  and  unloading,  whether  the  haul  be  short  or  long. 
These  terminal  expenses  which  they  make  so  much  a  do  about  are  nothing  as  an  excuse 
for  the  enormous  excesses  of  their  local  rates,  and  they  know  that  very  well.  Their 
real  reason  is  that  they-  find  it  easier,  safer  and  more  profitable,  says  Judge  Black, 
to  cheat  a  thousand  poor  men  than  one  who  is  powerful  enough  to  resist  them,  or 
rich  enough  to  bribe  them. 

And  he  has  this  to  say  of  that  subtle  influence  which  it  seems  played  so  promi- 
nent a  part  in  the  past  in  the  Legislature  of  Pennsylvania: 

The  influence  of  our  enemies  over  the  Legislature  is  mysterious,  incalculable,  and 
strong  enough  to  make  the  Constitution  a  dead  letter  in  spite  of  oaths  to  obey  it,  and 
a  popular  demand,  almost  universal,  to  enforce  it.  There  is  no  other  subject  upon 
which  the  press  is  so  shy  as  upon  this — the  most  important  of  all.  Afraid  to  oppose 
the  corrupt  corporations,  and  ashamed  to  defend  them,  it  sinks  in  to  silent  neutrality. 
Prudent  politicians  always  want  a  smooth  road  to  run  on,  and  the  right  path  here  is 


2204  DEBATES  OE  TEIE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

full  of  impediments.  In  this  state  of  things  we  seem  to  be  weaker  than  we  really  are; 
for  the  unbroken  heart  of  the  people  is  on  the  side  of  justice,  equality  and  truth. 

Monopolists  may  exult  at  our  blundering  leadership  and  the  unorganized  condition 
of  our  common  file,  but  they  had  better  bethink  them  that,  when  the  worst  comes  to 
the  worst,  our  raw  militia  is  numerous  enough  to  overwhelm  their  regulars,  well-paid 
and  well-drilled  as  they  are.  They  have  destroyed  the  business  of  hundreds,  for  one 
that  they  have  favored.  For  every  millionaire  they  have  made  ten  thousand  paupers, 
and  the  injured  parties  lack  no  gall  to  make  oppression  bitter. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  am  not  prepared  to  endorse 
the  sentiments  of  Judge  Black  as  to  the  Legislature  of  Pennsylvania,  as  applied 
to  our  own  General  Assembly;  and  yet  it  is  a  fact  known  to  all  men  that  the  railroads, 
or  the  friends  of  the  railroads,  have  exercised  a  powerful  influence  in  our  own 
General  Assembly.  For  years  they  have  kept  suspended  in  mid-air  the  employers' 
liability  bill,  which  is  embraced  in  this  majority  report,  and  which  the  counsel  for 
the  Norfolk  and  Western  Railroad  Company,  in  his  appearance  before  our  committee, 
Mr.  W.  A.  Glasgow,  frankly  stated  that  though  he  did  not  approve  of  the  enactment 
of  this  law  into  the  Constitution,  that  so  far  as  the  law  itself  v/as  concerned,  it  was 
in  the  main  satisfactory;  and  he  offered  two  amendments,  one  of  which  your  committee 
accepted.  And  yet  only  a  few  years  ago,  in  this  very  hall,  before  a  committee  of  the 
General  Assembly  of  Virginia,  I  heard  that  distinguished  lawyer,  and  another,  repre- 
senting the  Norfolk  and  Western  and  the  railroads;  of  this  State,  make  a  most  powerful 
argument  against  the  enactment  of  the  emloyers'  liability  law — a  different  act  it  is 
true — by  the  General  Assembly  of  Virginia.  It  seems  that  some  change  has  come 
over  the  spirit  of  the  dreams  of  the  people  of  Virginia — possibly  urged  on  by  the 
demands  of  these  people  who  risk  their  all  in  carrying  the  commerce — in  carrying 
their  cargoes  through  all  portions  of  Virginia,  and  that  at  last  this  old  Commonwealth, 
has  put  herself  in  line  with  the  Commonwealth  of  Massachusetts,  with  old  England,  and 
will  assert  herself  in  this  regard  as  a  matter  of  public  policy  for  the  protection  of 
those  engaged  in  extra  hazardous  risks  in  behalf  of  corporations,  exercising  a  part 
of  the  eminent  domain  of  the  State,  than  whom  no  braver  men  ever  lived  in  any  land — 
braver  than  the  trained  soldiers  of  any  nation.  Why,  but  a  little  while  ago,  here  just 
beyond  Lynchburg,  we  had  an  evidence  of  tlhelr  heroism  that  is  fit  to  go  down  the 
ages,  as  typical  of  the  bravery  of  Virginians.  Gallant  old  George  Fisher,  the  engineer, 
a  hero  of  two  wars,  caught  beneath  the  falling  debris,  gave  up  his  life,  like  the  lone 
sentinel  at  Pompeii,  in  the  defense  and  for  the  protection  of  the  passengers  and  the 
rights  of  his  company.  Brave  Captain  Whittaker,  the  conductor  of  the  train — braver 
than  Shakespeare,  depicts  the  migthy  Julius,  who  we  are  told  once  when  the  Tiber 
was  "  raging  and  chafing  with  its  shores,"  as  he  began  to  sink  cried,  "Help  me,  Cassius, 
or  I  sink" — as  he  was  swept  on  to  the  ocean  of  eternity  by  this  mad,  sizzling,  whirling 
torrent,  said  only  "  Good-bye,  tell  my  people  I  did  my  duty." 

That  is  the  message  this  report  of  the  majority  will  carry  to  the  people  of  Virginia, 
if  adopted.  There  is  not  a  line  in  it,  from  premise  to  conclusion,  which  interferes 
with  the  rights  of  any  citizen,  v/hich  seeks  to  deprive  any  corporation  of  anything  to 
which  that  corporation  is  justly  entitled.  It  preserves  the  right  of  eminent  domain, 
it  safeg-uards  the  police  powers  of  the  State,  it  puts  all  corporations  doing  business 
in  this  State  upon  a  footing  with  the  home  corporations,  it  subjects  them  to  suitable 
regulation  and  supervisions,  it  says  that  our  home  corporations  shall  have  the  same 
rights  as  those  who  are  chartered  by  other  States.  And  so,  if  you  take  it  section  by 
section,  you  will  find  that  in  the  main  it  is  a  conservative  article,  framed  to  meet  the 
exigencies  of  the  times,  framed  to  meet  these  new  and  powerful  agencies,  that  have 
been  developed  in  recent  years;  and  I  predict  that  in  less  than  a  decade  the  people 
of  this  State  will  laugh  at  the  idea  that  any  of  its  just  principles  were  ever  controverted. 

The  idea  has  been  presented,  and  will  be  presented  again,  that  we  are  here  to 
restrict  the  Legislature  in  certain  particulars.  We  are  here  in  certain  particulars 
to  restrict  the  Legislature.    This  has  been  true  of  all  constitutions  of  the  past,  in  their 


DEBATES  OF  THE  COXSTITUTIONAL  COXYENTIOX  OF  VIKGI^^IA. 


2205 


last  anah^sis.  It  will  be  true  of  the  constitutions  for  the  future,  and  of  the  one  that  is 
to  be  enacted  b}'  this  Convention.  God  knows  I  would  do  nothing,  and  no  man  on  this 
committee  would  do  anything,  to  interfere  with  the  Legislature  of  Virginia  in  its 
rights  save  to  restrict  it  in  the  particulars  in  which  restriction  has  been  proven  to  be 
necessary.  A  great  lawyer  compares  legislation  to  a  stream  that  should  ever  run 
pure  and  crystal  water.  He  speaks  of  it  as  being  the  source  of  all  power,  and  in 
his  poetic  imagination  he  likens  it  to  "the  tree  of  liberty  beneath  whose  shade  weary 
men  may  sit  down  and  rest  themselves  and  in  whose  boughs  song  birds  may  charm 
away  the  hours."  This  is  what  I  would  like  to  see  come  true  as  to  the  Legislature  of 
Virginia.  This  is  what  all  good  men  would  like  to  see  come  true,  and  the  surest 
and  best  method  of  bringing  about  that  result  is  by  enacting  just  such  provisions 
as  we  have  framed  in  this  majority  report  on  corporations,  so  as  to  keep  the  cor- 
porations out  of  politics.  Then  the  stream  will  run  pure  water,  and  then,  beneath 
its  tree  we  mduj  sit  down  and  rest  our  wear^'  selves. 

But,  gentlemen,  let  us  return  to  the  majority  report  that  is  held  up  to  your  eyes 
as  a  great  scarecrow;  that  is  held  up  as  the  very  besom  of  destruction  of  all  corporate 
interests  in  this  Commonwealth;  that  will  keep  capital  from  our  borders.  VTiat  is  it? 
We  constitute  a  commission  in  the  mode  and  manner  in  which  the  commission  of  the 
minority  report  is  constituted.  We  give  that  commission  full  and  ample  power  to 
fix  all  rates  and  classification  of  charges  on  freight  and  passengers  carried  by  the 
railroads  of  this  State.  We  give  that  commission  the  right  to  make  all  suitable  rules 
and  regulations  with  reference  to  the  schedules  and  general  management  of  the  rail- 
roads. We  absolutely  guard  the  rights  of  the  railroads  so  far  a&  the  fixing  of  rates 
is  concerned,  by  securing  to  them  the  right  of  appeal  to  the  Supreme  Court  of  Vir- 
ginia, and  we  leave  it  to  the  Legislature,  upon  appeal  from  the  rules  and  regulations 
fixed  by  this  commission,  to  so  modify  those  rules  as  may  seem  just  and  proper. 
That  is  the  awful  IMoloch  that  is  to  destroy  the  rights  of  the  people  of  Virginia. 
VTiat  have  we  now  in  this  State?  At  the  risk  of  repetition,  I  will  again  state  to 
this  committee  what  we  have  been  offered  by  vray  of  concession — the  Mason  law, 
pure  and  simple,  with  a  few  amendments  so  as  to  make  it  embrace  transmission 
companies,  with  a  section  prescribing  that  the  rates  shall  be  reasonable  and  just, 
taken  from  the  interstate  commerce  law,  and  with  two  sections  on  definitions. 

Then  we  come  to  the  remedy  provided  by  these  gentlemen  in  Section  S  of  their 
substitute.  I  took  the  trouble,  after  the  conference  of  yesterday  evening,  to  make 
another  comparison,  and  I  find  that  I  did  not  state  the  similarity  as  strongly  as  it 
really  is.  I  now  ask  3'our  attention  while  I  read  one  and  the  other  of  these  two  sec- 
tions— Section  S  of  the  substitute,  Section  8  of  this  generous  donation  and  concession, 
this  contribution  to  the  organic  law  of  Virginia  that  has  been  in  existence  since  1892 
and  1S93: 

Whenever,  upon  complaint  to  said  board,  and  after  the  board  has  given  the  carrier 
complained  of  reasonable  notice  and  opportunity  to  be  heard,  and  has  fully  investigated 
the  complaint,  it  shall  appear  to  said  board  that  any  common  carrier  doing  business 
in  this  State  has  failed  or  neglected  in  any  respect  to  comply  with  the  provisions  of 
this  article,  or  anj^  of  the  laws  of  this  Commonwealth  relating  to  the  transportation 
of  freight  and  passengers,  or  the  transmission  of  messages  or  communications  by  com- 
mon carriers,  especially  in  regard  to  connections  with  other  railroads  or  lines,  rates 
of  charges  and  time  schedules — 

I  will  stop  there,  at  line  12,  so  that  I  may  read  from  the  Mason  act  and  compare 
the  two.    I  will  then  go  on  to  the  end,  so  that  you  may  have  them  together. 
I  read  now  from  the  :\Iason  act: 

Whenever,  upon  complaint  made  to  the  railroad  commissioner  or  from  his  own 
knowledge — the  only  change  there  is  that  in  the  substitute  the  complaint  is  to  be  made 
to  the  "board"  and'  in  the  Mason  act  it  is  made  to  the  "railroad  commissioner" — and 
after  he  has  given  the  common  carrier  complained  of  reasonable  notice  and  an  oppor- 


2206 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tunity  to  be  heard,  and  has  fully  investigated  the  complaint,  it  shall  appear  to  the 
said  commissioner — in  the  substitute  "it  shall  appear  to  the  said  board" — that  any 
common  carrier  doing  business  in  this  State  has  failed  or  neglected  in  any  respect 
or  particular,  to  ccmiply  with  the  provisions  of  this  act,  or  with  any  of  the  laws  of 
this  Commonwealth  relating  to  the  transportation  of  freight  and  passengers  by  com- 
mon carriers — in  the  substitute  there  is  the  insertion  of  the  words  "the  transmission 
of  messages" — especially  in  regard  to  connections  with  other  railroads  the  rates  of 
toll  and  the  time  schedule — 

I  now  read  from  the  substitute,  beginning  at  line  12: 

The  said  board  shall,  in  writing,  request  the  said  common  carrier  or  person 
operating  the  same  to  correct  the  cause  of  complaint. 
I  read  again  from  Section  14  of  the  Mason  act: 

He  shall,  in  writing,  request  the  said  common  carrier  or  person  operating  the  com- 
pany to  correct  the  cause  of  complaint.  If,  after  ten  days,  the  said  company  neglects 
or  refuses,  the  said  commissioner  shall  in  the  name  of  the  Commonwealth  proceed 
to  have  all  m.atters  or  cause  of  complaint  adjusted  by  the  circuit  court,  or  the  judge 
thereof  in  vacation,  of  the  county  or  city  wherein  the  cause  of  complaint  arose, 
having  first  given  the  said  common  carrier  or  person  operating  the  company,  ten  days' 
notice,  which  notice  shall  contain  the  cause  of  complaint. 

I  will  read  now  from  the  substitute: 

If,  after  ten  days,  said  company  fails  or  refuses,  the  said  board  (instead  of  the 
commissioner)  shall  report  the  cause  of  complaint  to  the  Attorney  General  of  this 
State,  who'  shall  in  the  name  of  the  Commonwealth,  proceed  to  have  all  matters  or 
cause  of  complaint  adjusted  before  the  circuit  court,  or  the  judge  there  in  vacation, 
of  the  county  or  city  wherein  the  cause  of  com.plaint  arose,  having  first  given  the  said 
common  carrier  or  person  operating  the  compa,ny  ten  days'  notice,  which  notice  shall 
contain  the  cause  of  complaint.  The  cause  shall  be  heard  by  the  said  circuit  court 
or  the  judge  thereof  in  vacation  on  said  notice,  and  no-  other  pleading  shall  be  required. 
The  said  court  or  judge,  if  the  decision  is  in  favor  of  the  Commonwealth,  shall,  by 
mandatory  or  restraining  order,  prevent  the  common  carrier  or  person  complained  of 
from  further  continuing  to  violate  the  law  and  the  costs  thereof  shall  be  paid  by  the 
common  carrier  or  person  complained  of. 

The  provision  with  regard  to  the  cost  being  paid  hy  the  common  carrier  or  person 
complained  of  ip,  a  dried  to  the  section  in  the  Mason  act. 

The  following  has  also  been  added  to  the  Mason  act,  in  the  minority  report: 

An  appeal,  irrespective  of  the  amount  involved,  shall  lie  at  the  instance  of  either 
party  from  the  decision  of  the  said  circuit  court,  or  the  judge  thereof  in  vacation,  to> 
the  Supreme  Court  of  Appeals  of  this  State,  under  such  rules  and  regulations  as  may 
be  prescribed  by  law. 

It  shall  be  the  duty  of  the  Commonwealth's  Attorney  of  any  county  or  city  in 
which  proceedings  are  instituted  under  this  act,  under  the  supervision  and  control  of 
the  Attorney  General,  to  represent  the  State,  and  such  proceedings  shall  have  precedi- 
ence  over  all  civil  cases  on  the  docket. 

Yesterday,  when  I  made  my  statement  before  the  committee,  I  was  under  the 
impression  that  this  precedence  of  civil  cases  on  the  docket  was  something  added, 
but  I  find  that  it  is  exactly  the  same  as  in  the  Mason  act. 

It  shall  be  the  duty,  says  the  Mason  act,  of  the  Commonwealth's  Attorney  of 
any  county  or  city  in  which  proceedings  are  instituted  under  this  act  to  represent  the 
State,  and  such  proceedings  shall  have  precedence  over  all  others  on  the  docket  in 
either  court. 

The  Mason  act  also  provides: 

Either  the  Commonwealth  or  any  common  carrier,  being  aggrieved  by  any  judgment 
or  ruling  made  by  any  circuit  court  or  judge  thereof,  under  the  provisions  of  this  act, 
shall  have  the  right  to  except  thereto,  and  have  such  exceptions  entered  of  record, 
and  have  the  right,  by  bill  of  exceptions,  to  have  any  evidence  introduced  made  a 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2207 


part  of  the  record :  and  the  right  to  present  a  petition  to  the  Supreme  Court  of  Appeals, 
or  an  appeal,  writ  of  error,  or  supersedeas  to  any  final  judgment,  order  or  ruling  com- 
plained of,  and  the  right  to  such  appeal,  writ  of  error  or  supersedeas  shall  be  deter- 
mined, and.  if  allowed,  the  case  shall  be  proceeded  with,  heard  and  finally  determined 
as  in  like  cases  made  and  provided. 

These,  gentlemen,  are  the  provisions  of  the  ^^lason  act.  It  does  seem  to  me, 
gentlemen,  with  the  profoundest  respect  for  my  friends  who  present  this  minority 
report,  that  if  they  were  dissatisfied  with  the  provision  of  the  majority  report,  they 
might  at  least  have  offered  something  in  its  place  and  stead  other  than  those  which  already 
belong  to  the  people  of  Virginia,  and  had  belonged  to  them  for  all  these  years  since 
1892.  And  this  is  the  Trojan  horse  they  have  brought  up  to  the  walls  of  this  Com- 
mittee, with  which  they  were  to  go  into  the  very  heart  of  our  citadel.  But  this  Trojan 
horse  is  so  badly  constructed  as  not  even  to  excite  the  curiosity  of  these  Trojans. 
It  might  do  very  well  for  some  mighty  Ajax.to  test  his  strength  in  the  construction  of. 
It  might  give  the  other  Greeks  bearing  gifts  splendid  exercise  to  haul  this  machine 
up  to  the  gates  of  this  Convention;  but  other  than  acting  as  a  development  of  their 
muscle.  I  am  satisfied  it  will  have  no  effect. 

Gentlemen  of  the  committee,  we  all  feel  a  peculiar  interest  in  this  matter.  It  is 
not  to  be  decided  by  suggestions  that  the  fate  of  this  Constitution  may  be  imperiled. 
It  is  not  to  be  deteraiined  by  kindly  digs  at  the  gentleman  from  Danville  (Mr, 
Withers!,  who  was  so  unfortunate  as  to  lose  his  figures;  but  if  I  am  not  mistaken, 
those  figures  will  yet  return  before  this  debate  is  over  to  plague  his  accusers.  This 
is  a  matter,  gentlemen,  too  serious  to  be  determined  by  friendly  badinage.  It  is  a 
matter  that  goes  to  a  very  right,  fundamental  and  organic,  which  means  something  or 
it  means  nothing,  which  is  a  breathing,  living  force,  or,  like  the  Dead  Sea  fruit,  all 
ashes.  These  gentlemen  who  offer  this  report  stand  neither  protected  by  the  helmet 
of  Pluto,  for  the  weakness  of  their  own  scheme  is  plainly  seen,  and  yet  they  are 
lulled  into  the  mistaken  idea  that  they  wear  the  shield  and  bear  the  mirror  of  Pallas. 
They  are  neither  invisible  to  others,  nor  can  they  see  that  others  see  the  weakness 
of  their  substitute.  In  the  zeal  and  earnestness  of  their  advocacy  they  have  lost  sight 
of  the  fact  that  this  is  a  matter  about  which  this  committee  has  worked  for  months, 
about  which  the  people  of  Virginia  have  thought  for  years,  and  this  is  the  field  upon 
which  this  contest  shall  be  fought  out.  This  is  the  field.  Ve  are  not  to  be  deluded  or 
persuaded  to  try  our  chances  at  any  other  place.  \Ye  are  not  here  to  await  the  slow 
and  tardy  action  of  a  legislature,  that  all  these  years  has  done  nothing  in  the  pre- 
mises. This  "is  the  forum,  and  it  must  be  determined  here  whether  this  plan  shall 
succeed  or  not.  But  I  want  to  say  to  you,  gentlemen  of  the  committee,  and  I  hardly 
deem  it  necessary  to  say  it.  that  if  in  yotir  wisdom  and  judgment  you  see  fit — and 
I  cannot  see  hov-  you  can  come  to  such  a  conclusion — to  turn  down  the  report  of  the 
majority,  giving  a  conservative  commission  to  regtilate  the  rates  of  the  railroads  in 
A'irginia.  I  pray  yoti  not  to  accept  this  so-called  substitute. 

The  history  of  a  people  is  often  best  preserved  by  their  laws  and  ci^^l  institu- 
tions. "The  fame  of  the  areopagus  survived  the  military  glory  of  Athens;  and  when 
the  battle  of  Marathon,  the  passage  of  the  Hellespont  and  the  victory  of  Salamis 
v-ere  treated  as  fables  at  Rome,  the  memory  of  the  Grecian  laws  still  lived  in  the 
twelve  tables  of  the  Capital  of  the  Universe." 

And  so,  too.  the  fame  of  Magna  Charta  will  outlive  the  military  glory  of  England, 
and  when  the  story  of  the  warlike  spirit  of  the  Conqueror  at  Hastings,  the  heroism 
of  Nelson  at  Copenhagen  and  Trafalgar,  the  unbending  courage  of  V^llington  at 
Waterloo  and  the  magnificent  genius  of  Marlborough  at  Blenheim  shall  be  consigned 
to  the  pages  of  fiction,  the  historian  of  ages  yet  unborn  will  point  to  Runnymede  as 
the  birthplace  of  Anglo-Saxon  liberty. 

And  if,  by  the  wise  action  of  this  Convention,  we  enact  into  the  organic  law  of 
our   State   conservative   and   beneficent   provisions   along   this   line   of  the  suitable 


2208 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


regulation  and  supervision  of  corporations,  the  work  of  the  Convention  will  be  pointed 
to  with  pride  by  those  who  are  to  come  afterwards.  We  have  a  magnficent  State, 
inviting  immigration,  inviting  its  building  up;  and  yet  if  you  go  up  the  line  of  the 
Richmond  and  Alleghany,  now  the  James  River  Division  of  the  Cheaspeake  and  Ohio 
Railroad  Company,  you  will  go  through  a  country  which  at  one  time  was  the  equal 
in  the  fertility  of  its  soil,  in  the  bravery  and  intelligence  of  its  people  to  that  of 
any  country  on  the  habitable  globe.  You  will  be  confronted  with  a  curious  state  of 
facts.  You  will  look  across  the  river  from  Goochland  and  you  will  see  the  county 
of  Powhatan,  represented  on  this  floor  by  my  colleague  (Mr.  Hancock)  and  myself. 
Go  up  as  high  as  Jefferson,  go  up  as  high  as  Michaux,  go  to  the  point  where  the 
ferries  are  free;  yet  you  will  often  see  the  farmer  coming  down  that  old  river  road 
hauling  his  tobacco  and  his  other  crops  in  competition  with  this  splendid  James 
River  Branch  of  the  Chesapeake  and  Ohio  Railroad. 

In  the  old  days  the  tolls  were  such  tliat  freight  was  brought  to  Richmond  in 
the  canal  boats,  but  as  we  progressed  we  thought  it  was  better  to  give  the  bed  of  that 
canal,  as  far  as  we  could,  tO'  the  incorporators  of  the  R.  &  A.,  and  they  built  this 
railroad,  which  is  now  a  division  of  the  Chesapeake  and  Ohio.  For  that  reason  this 
improvement  to  the  farmer  on  either  side  has  not  followed  in  the  wake  of  the  con- 
stuction  of  that  road.  Possibly  it  is  cheaper  for  him  to  haul  his  produce  twenty-five 
to  forty  miles  over  the  rough  roads  to  the  city  of  Richmond.  Possibly  the  rate  is 
unjustly  high  upon  the  railroad  which  is  his  only  common  carrier  other  than  his  own 
wagons.  I  cannot  explain  these  things,  nor  will  the  figures  furnished  us  on  yesterday 
by  the  president  of  the  Chesapeake  and  Ohio  Railroad  Company;  and  I  take  occasion 
to  say  here  that,  like  the  gentleman  from  Fauquier  (Mr.  Hunton),  I  know  that  gentle- 
man and  think  most  highly  of  him. 

In  the  county  of  Chesterfield,  which  is  singularly  blessed,  I  am  glad  to*  say,  with 
railroads,  eleven  miles  from  the  city  of  Richmond,  where  a  Western  farmer,  and  a 
good  one,  lives,  where  he  carries  on  his  dairy  business,  I  have  seen  that  man  daily 
hitch  up  his  wagon  and  haul  his  milk  to  be  sold  at  wholesale  in  Richmond.  Why  that 
is  I  do  not  know,  and  yet  I  imagine  it  is  due  to^  the  fact  that  the  rates  are  so  high 
and  his  cargo  is  so  small  that  it  would  not  pay  him  toi  ship  by  train.  Possibly  this 
condition  of  affairs  might  be  benefited.  If  it  is  right  that  it  should  be  remedied,  it 
ought  to  be  remedied;  if  it  should  not  be  remedied,  it  will  not  be  remedied. 

Competition  lowers  rates.  Commercial  competition  entersi  as  a  factor,  but  there 
is  no  competition,  the  rates  are  not  lowered  save  insofar,  as  it  is  to  the  interest  of  the 
carrying  corporation  to  lower  them,  to  the  extent  that  they  may  not  kill  the  goose 
that  lays  the  golden  egg.  That  is  the  testimony  of  that  great  Pennsylvania  jurist, 
Judge  Black.  That  is  the  testimony,  in  a  different  form,  of  the  last  report  of  the 
Interstate  Commerce  Commission,  though  it  dealt  largely  with  the  question  of  rebates; 
but  it  showed  how  powerless  the  commission  is  in  the  premises,  because  they  have 
not  the  power  to  punish  these  offending  corporations.  The  statutes  are  against  the 
persons  and  not  against  the  property,  and  being  tired  of  asking  for  larger  powers,  the 
commission  merely  contents  itself  with  the  recommendations  it  has  made  annually 
all  these  years  that  have  gone  by  since  its  constitution. 

Now,  Mr.  Chairman  and  gentlemen  of  the  committee,  all  that  I  ask  of  you  is  that 
you  will  consider  carefully,  before  you  turn  it  down,  the  report  of  this  committee. 
Its  chairman,  I  desire  to  state,  gave  to  the  consideration  of  this  question  more  time 
and  more  conscientious  study,  I  dare  say,  than  has  been  given  to  any  other  question 
that  has  come  or  will  come  before  this  Convention.  To  Washington,  to  the  library, 
to  confer  with  the  Interstate  Commerce  Commissioners,  to  North  Carolina,  to  every- 
where he  could  get  his  hands  upon  useful  information,  he  went,  listening  with  great 
care  and  courtesy  and  attention  to  these  able  arguments  made  by  Judge  Baxter  and 
Mr.  Glasgow  and  Mr.  Finley  and  others  before  our  committee,  adopting  many  sugges- 
tions that  have  fallen  from  the  lips  of  those  who  appeared  before  us  that  were  to  the 


DEBATES  OF  THE  CONSTITUTION" AL  CONVENTION  OF  VIRGINIA.  2209 

real  interest  of  the  people  of  Virginia.  We  have  presented  to  you  for  your  considera- 
tion this  report,  and,  my  friends,  I  feel  that  if  you  give  it  your  careful  consideration 
it  will  result  in  its  adoption  by  this  committee. 

I  regretted  exceedingly  on  yesterday  the  suggestion  of  my  friend  from  Fauquier 
(Mr.  Hunton) — not  a  threat;  he  never  makes  threats;  he  is  too  high  and  honorable — 
but  I  regretted,  I  assure  you,  gentlemen  of  the  committee,  a  s.uggestion  eminafing 
from  so  high  a  source  that  in  passing  upon  whether  this  was  a  proper  article  to  go 
into  our  organic  lav/,  we  must  take  into  consideration  its  influence  in  arraying  against 
us  the  corporations  of  the  State.  It  should  "not  weigh  one  jot  or  tittle  with  any  man 
in  the  Convention,  in  my  humble  judgment. 

Mr.  Hunton:  Did  not  my  friend  consider  exactly  the  same  idea  in  passing  upon 
the  Quarles-Barbour  resolution? 

Mr.  Ingram:    I  have  not  passed  on  it,  sir. 

Mr.  Hunton:  Certainly  there  are  very  m.any  members  of  this  body  who  have  con- 
sidered it  and  who  will  consider  it. 

Mr.  IngTam:  Possibly  that  is  true.  I  am  not  here  to  deny  it;  but  I  do  say  there 
is  a  difference,  and,  so  far  as  I  am  concerned,  neither  question  should  influence  this 
Convention,  and  I  hope  it  will  hot  enter  into  the  consideration  of  this  question. 

Mr.  Hunton:  Does  my  friend  from  Manchester  think  it  is  wise,  however  great 
the  instrument  that  this  body  may  finally  formulate  to  ignore  the  sentiment  of  the 
State  and  of  the  people  upon  the  subjects  upon  which  we  are  passing?  So  that  our 
work,  when  formulated,  will  be  absolutely  ineffective,  inefficient  and  fail  to  become 
a  part  of  the  organic  law  of  our  land? 

Mr.  Ingram:    Not  at  all. 

Mr.  Hunton:    Then,  is  not  your  argument  fallacious? 

Mr.  Ingram:  Not  according  to  my  idea;  but  I  do  deny  the  right  that  any  sugges- 
tion should  be  made  in  passing  upon  this  question  of  the  fact  that  the  corporations 
are  to  go  against  it,  and  if,  for  nothing  else,  than  on  the  score,  if  you  take  it  on  that 
ground,  of  its  popularity.  I  tell  you  if  it  gets  deep  down  into  the  hearts  of  the  people 
of  Virginia  that  the  corporations  of  this  Commonwealth  are  to  hold  at  bay  the  acts 
of  their  sovereign  agents,  in  defense  of  their  liberties  on  the  ground  of  popularity  this 
measure  will  carry. 

I  thank  you,  gentlemen,  for  your  kind  attention.    (Great  applause.) 

Mr.  Quarles:  Mr.  Chairman,  I  rise  not  to  make  a  speech,  but  simply  to  make  an 
explanation.  On  yesterday  while  the  gentleman  from  Fauquier  (Mr.  Hunton)  was 
making  his  speech,  I  interrupted  him  to  ask  whether  or  not  the  Georgia  commisision 
may  not  be  infiuenced  and  controlled  by  railroads.  I  fear  it  may  be  inferred  that 
I  intended  to  charge  that  that  commission  is  so  controlled.  I  know  nothing  about  or 
against  that  commission,  and  I  did  not  intend  to  make  this  charge.  That  commission 
may  be  composed  of  gentlemen  of  the  highest  character  and  integrity,  and  I  would 
not  do  them  the  slightest  injustice.  The  idea  I  intended  to  suggest  and  impress  was, 
that  it  is  possible  for  a  railroad  commission  to  be  influenced  by  railroads, 

Mr.  Brooke:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  believe  that  those 
gentlemen  who  ai*e  members  of  the  Convention,  with  whom  I  have  the  honor  and 
pleasure  of  a  more  than  ordinately  intimate  personal  acquaintance,  and  who,  there- 
fore, know  how  largely  I  am  possessed  of  that  quality  of  modesty  which  adorns  a 
woman  and  destroys  a  lawj^er  will  entirely  appreciate  my  sincerity  when  I  say  that 
it  is  Vv^ith  the  utmost  reluctance  that  I  arise  to  enter  upon  a  debate  upon  this  important 
question,  which  has  been  already  so  elaborately  discussed  and  so  ably  debated  from 
both  standpoints. 

I  do  not  hope,  Mr.  Chairman,  to  be  able  to  cover  the  subject  in  all  its  details. 
I  shall  not  attempt  to  follow  the  able  and  elaborate  argument  of  the  gentleman  from 
Augusta  (Mr.  Braxton)  through  all  its  lines  and  all  its  course.  That  is  a  duty  from 
which  I  have  been  largely  relieved  by  the  fact  that  much  of  that  argument,  able, 
adroit  and  captivating  as  it  was,  was  directed  to  the  establishment  of  principles  that 


2210  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

nobody  denied,  of  principles  which  we  of  the  minority  concede  now  and  alwaysi  have 
been  ready  to  concede  to  the  majority.  Nor  do  I  think,  Mr.  Chairman,  that  I  shall 
be  able  to  imitate  the  almost  fatal  paroxysms  of  disgust  which  seized  upon  my  friend 
from  Manchester  (Mr.  Ingram)  at  the  very  suggestion  that  anybody  would  offer  him 
a  dose  of  catnip  tea. 

That  term,  as  applied  in  reproach  to  the  minority  report  of  this  committee,  is. 
like  some  of  the  arguments  that  the  gentlemen  have  made  on  this  subject — a  little 
time-worn  and  a  little  stale,  to  my  mind.  It  was  first  uttered  in  a  squib  in  a  Staunton 
newspaper,  then  greedily  accepted  and  rolled  under  his  tongue  as  a  sweet  morsel  by 
the  gentleman  from  Augusta  (Mr.  Braxton),  and  then  passed  over  by  him  to  his  able 
assistant,  who  spews  it  from  his  mouth  as  a  nauseous  dose.  Birds  in  borrowed 
plumage  have  not  always  attracted  the  admiration  of  mankind,  and  the  users  and 
devotees  of  borrowed  wit  frequently  destroy  by  its  use  the  force  of  an  otherwise  good 
argument. 

I  am  not  aware,  as  the  gentleman  from  Manchester  is,  what  Mr.  Jefferson  would 
say  if  he  were  here,  nor  what  Mr.  Madison  would  say  if  he  were  here,  although  the 
gentleman  undertakes  to  give  us  the  sentiment  of  those  distinguished  and  illustrious 
statesmen,  while  he  forbears  to  give  us  information  as  to  the  route  by  which  he  has 
communicated  with  them,  and  the  post-mark  which  their  communications  bear.  Nor 
do  I  appreciate  just  exactly  what  Ajax  has  to  do  with  this  case,  or  the  shield  of  Pallas, 
or  any  of  those  oild-fashioned  fellows,  who  had  to  deal  with  the  problems  which  faced 
them  in  their  day,  as  we  now  have  to  deal  with  the  problems  which  face  us. 

I  beg  this  committee  to  believe  that  in  what  I  am,  about  to  say  as  to  the  causes 
which  led  me  to  separate  myself  from  the  judgment  of  the  majority  of  this  committee 
and  to  sign  the  minority  report,  will  be  given  with  a  frankness  and  with  a  sincerity 
which  are  due  to  the  members  of  this  committee,  and  which  I  feel  in  my  heart  are  the 
only  actuating  motives  which  have  operated  upon  me  to  determine  my  course.  Would 
it  be  considered  an  impertinence  for  a  moment  and  to  reflect  for  an  instant  upon  the 
purposes  of  our  Convention?  We  are  charged  by  our  people  with  the  duty  of  a  dis- 
passionate, calm,  judicial  and  earnest  examination  of  all  the  great  questions  which 
will  be  submitted  to  us,  and  to  give  to  them,  as  they  have  the  right  to  demand,  the 
result  of  our  best  judgment,  uninfluenced  by  prejudice  and  unswayed  by  the  desire 
for  popularity.  I  have  undertaken  to  call  the  attention  of  the  committee  to  that  fact 
because  frankly,  gentlemen,  I  cannot  understand  the  mental  attitude  of  the  gentlemen 
who  have  led  the  debate  on  the  other  side.  It  has  been  conducted,  it  seems  to  me — 
whether  intentionally  or  unintentionally — as  if  the  railroad  and  transportation  com- 
panies of  the  State  of  Virginia  were  the  natural  and  implacable  enemies  of  the  people. 
It  has  been  discussed,  it  seems  to  me,  not  with  a  view — my  friends  will  pardon  me  for 
say  ng  it — of  arriving  at  the  best  result  between  these  two  competing  measures,  but  as 
if  it  was  the  cause  of  the  people  against  the  railroads;,  and  I  have  sometimes  felt,  as 
the  argument  went  on,  that  in  the  minds  of  the  gentlemen  whoi  were  speaking,  that 
word  was  spelled  "  peepul."  (Laughter.)  If  it  is  true,  as  we  admit  (and  this  is  one 
of  the  propositions  which  the  gentleman  from  Augusta  seemed  to  me  to  labor  so  hard 
to  prove),  that  the  State  has  the  power  of  legal  control  of  the  rates,  and  if  it  is 
true  that  that  power  grows  out  of  the  fact  that  the  gift  to  these  transportatTon  com- 
panies, to  these  carriers,  of  the  power  of  eminent  domain,  of  the  right  to  charge  tolls,, 
was  made  in  consideration  that  those  companies  should  perform  a  public  service  to 
the  people,  is  it  not  equally  true,  in  law  and  in  morals,  that  the  consideration  for 
those  contracts  is  reciprocal,  and  that  when  a  State  gives  to  these  common  carriers, 
for  the  purpose  of  having  this  public  service  performed,  these  rights,  is  it  not  equally 
true — ought  it  not  to  be  equally  true — that  the  State  does  it  with  an  implied  promise 
on  her  part  that  these  companies,  conducting  themselves  with  propriety,  seeking  not  to 
trample  upon  the  interests  of  the  people  shall  not  be  throttled  by  the  State  by  oppres- 
sive, drastic  regulationsi? 

Is  this  a  one-sided  business  between  the  State  and  the  carriers?    We  say  that  the 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2311 

State  has  the  right  to  demand,  on  the  part  of  the  common  carrier,  the  performance 
of  these  public  services;  but  we  also  say  that,  in  the  name  of  morals,  in  the  name 
of  the  high  character  and  great  reputation  of  this  old  Commonwealth  of  ours,  the 
railroads,  the  carriers,  should  have  the  right  to  say  to  the  State:  "  Supervise  our 
performances,  regulate  our  conduct,  but  do  not  throttle  us  out  of  existence.  Do  not 
take  from  our  possession  the  management  of  the  property  that  you  have  induced  us 
to  build  up  by  the  expenditure  of  millions  upon  millions  of  our  own  money." 

Now,  gentlemen,  in  what  attitude,  in  what  mental  attitude,  does  it  become  us — 
earnest,  and  I  hope  patriotic,  representatives  of  the  people — to  approach  the  decision 
and  the  consideration  of  a  question  as  important  to  the  large  interests  involved  on 
either  side  as  is  the  one  which  now  claims  our  attention?  I  shall,  as  briefly  as  I  can — 
I  know  ineffectively  and  without  attractiveness — proceed  to  discuss  some  of  the  provi- 
sions, some  of  the  fundamental  principles  underlying  these  two  propositions,  and  will 
call  the  attention  of  this  committee  to  the  line  of  demarcation  between  these  funda- 
mental principles.  I  ha,.ve  said  that  we  do  not  deny  the  right  of  the  State  to  control. 
We  do  not  deny  the  power  of  the  State  to  control.  The  question  between  us  is  as  to 
the  propriety,  as  to  the  justice,  between  man  and  man,  between  the  State  and  her 
servants^ — if  you  please  to  call  them  such —  of  the  State  exercising  such  complete  and 
absolute  control  as  is  proposed  by  the  majority  report. 

The  difference  between  us  is  simply  this:  We  claim  that  the  proposition  of  the 
majority,  as  laid  down  in  their  report,  carries  the  exercise  of  this  power  of  control 
to  the  extent  of  actually  and  pratically  taking  out  of  the  hands  of  the  men  who  own 
these  properties  the  management  of  it  and  putting  it  in  the  hands  of  this  agency  of 
the  State,  which  assumes  the  management  but  declines  to  accept  any  of  the  responsi- 
bilities of  their  operation.  We,  of  the  minority,  on  the  other  hand,  believe  that  all  of 
the  interests  of  the  State  can  be  properly,  and  will  be  properly,  protected,  and  that 
the  citizens  of  the  State  will  be  protected,  by  such  a  proper  supervision  and  regulation 
of  these  roads,  as  will  enable  the  State  to  correct  abuses  upon  complaint,  and  to 
protect  the  interests  of  the  individual,  and  yet  leave,  as  it  seems  to  me,  in  justice 
and  common  honesty  it  should  be  left,  the  management  of  their  own  property  in  the 
hands  of  the  men  who  have  invested  their  money  in  it,  not  only  for  their  own  benefit — 
or,  if  that  be  the  main  purpose — yet  also  resulting  in  a  large  benefit  to  the  State  in  the 
upbuilding  of  her  resources,  in  the  linking  together  of  community  with  community, 
in  furnishing  markets  for  producers,  and  in  contributing  more  largely  than  any  other 
commercial  agency  on  earth  to  the  civilization,  the  happiness  and  the  prosperity  of 
the  community. 

Is  it  true  that  the  plan  of  the  majority  practically  takes  from  these  companies 
the  actual  management  of  their  property?  I  shall  not  discuss  many  of  the  separate 
propositions  of  the  proposed  article,  but  will  confine  myself  almost  entirely  to  those 
which  give  this  power  to  this  commission. 

Mr.  Meredith:  May  I  ask  the  gentleman,  as  he  goes  along,  to  state  what  is  the 
great  difference  between  the  majority  report  and  the  minority  report,  taking  the  con- 
struction of  the  language  of  the  minority  report  put  upon  it  by  the  gentleman  from 
Fauquier  (Mr.  Hunton)  on  yesterday?  Assuming  that  language  to  be  as  broad  as  he 
construed  it  to  be,  please  show  us  wherein  there  is  this  extreme  power  given  by  the 
majority  report  that  is  not  given  under  the  minority  report. 

Mr.  Brooke:  I  will  try  to  do  that,  and,  for  the  time  being,  I  will  make  this  answer. 
As  I  have  just  said,  the  majority  report  differs  from  and  is  more  drastic  and  compre- 
hensive than  the  minority  report,  in  the  fact  that  it  authorizes  this  commission,  as  an 
initial  proceeding,  to  fix  the  rates  and  control  these  companies —  as  an  initial  pro- 
ceeding— in  all  respects  and  in  all  matters  in  which  they  touch  the  public. 

Mr.  Meredith:  No  matter  what  may  be  in  the  minority  report,  is  it  possible  for 
there  to  be  initial  proceedings  on  the  part  of  this  board,  taking  into  consideration  the 
fact  that  you  are  now  in  existence,  that  you  have  your  schedules  in  use  and  will  have 


2212  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

them  when  the  board  comes  into  existence.  Can  they  do  anything  more  than  supervise 
them? 

Mr.  Brooke:  One  of  the  arguments  against  this  majority  report  is  that  it  not  only 
gives  to  the  commission  the  right  but  im^poses  upon  it  the  duty  to  do  the  very  thing 
v/hich  the  gentleman  says  it  is  impossible  for  them  to  do.  If  they  connot  do  it,  why 
give  them  the  power;  why  fling  out  the  red  flag  of  warning  to  capital  to  keep  out 
of  the  limits  of  this  State?  If  they  have  no  power,  under  this  proposition  of  the 
majority,  why  signal  to  the  world  at  large  that  Virginia  is  dangerous  ground  for  men 
who  have  money  to  invest,  brains  to  use  and  efforts  to  exercise  in  upbuilding  the 
industrial  resources  within  our  borders? 

Mr.  Meredith:  I  hope  that  I  am  not  interrupting  the  gentleman  too  much,  but 
I  would  like,  since  you  say  this  power  is  given,  foT  you  to  show  us  the  language 
which  speaks  of  that  power  as  being  anything  except  supervisory,  regulating  and  con- 
trolling. You  have  used  this  very  earnest  declamation  about  driving  capital  away; 
but,  to  get  down  to  the  point,  I  would  like  you,  if  possible,  to  show  us  the  language 
which  gives  them  any  initial  power,  and  how  it  is  possible  for  initial  power  to  be 
exercised  by  them,  when  you  are  in  existence,  with  your  rates  established,  and  they 
can  only  be  revised  or  supervised. 

Mr.  Brooke:  I  will  try  to  answer  the  gentleman  as  I  go  along.  I 
will  say,  however,  in  passing,  that  I  construe  this  language  as  it  is  con- 
strued by  its  friends,  by  the  chairman  of  this  Committee  on  Corporations. 
If  they  do  not  know  what  they  mean,  the  apology  ought  not  to  come  from  our  side  of 
the  house.  I  will  show  my  friend  that  the  chairman  of  this  Committee  on  Corpora- 
tions, himself,  has  said  that  the  kind  of  control  he  intended  to  give  over  the  rates  of 
of  the  railroad  companies  was  just  the  control  that  the  general  freight  agent  had — 
just  exactly  the  control  that  he  had. 

If  that  does  not  mean  control,  if  that  does  not  mean  absolute  management,  I 
would  like  to  know  exactly  what  it  does  mean.    Otherwise  I  shall  remain  in  the  dark. 

I  have  said  that  our  contention  is,  or,  if  I  may  put  it  a  little  bit  more  mildly  to 
suit  the  possible  ideas  of  some  of  the  gentlemen  upon  the  floor,  our  fear  is  that  the 
powers  given  to  this  railroad  commission  under  sub-section  B  of  Section  4  amount 
to  turning  over  to  this  commissin  the  practical  management  of  the  properties  of  these 
companies  in  all  respects  in  which  they  touch  the  public  interests.  I  may  say,  in 
passing,  that  I  cannot  conceive  of  any  matter  relating  to  transportation  and  charging 
the  cost  thereof  which  does  not  belong  to  that  class  of  matters  which  do  touch  the. 
interests  of  the  people. 

Here  is  what  the  report  says: 

The  said  commission  shall  have  the  power,  and  be  charged  with  the  duty — it  is 
not  optional  with  them.  The  majority  have  placed  upon  the  commission  not  only  the 
power  but  the  duty,  which  they  will,  if  true  to  their  oaths  of  oflice,  attempt  to  per- 
form— of  supervising,  regulating  and  controlling  all  transportation  and  transmission 
companies  doing  business  in  this  State — 

Mr.  Braxton:  Will  the  gentlemen  please  not  stop  at  that  point,  because  he  does 
not  do  justice  to  the  report  of  the  committee.  The  report  says  "  in  all  matters  relating 
to  the  performance  of  their  public  duties  and  of  their  charges  therefor,"  which  is  an 
essentially  different  thing  from  what  it  would  mean  if  you  stop  at  the  point  where  the 
gentleman  stops. 

Mr.  Broo'ke:  I  pray  the  committee  to  believe  me  when  I  say  that  I  am  too  old 
a  lawyer  not  to  recognize  not  only  the  want  of  ethics,  but  the  danger  of  not  reading 
an  entire  quotation.  I  certainly  do  not  intend  to  stop  at  that  point.  I  may  stop  at 
that  point,  briefly,  to  comment  upon  it  in  connection  with  what  I  shall  read  as  fol- 
lowing it,  which  I  think  is  a  fair  and  proper  way  of  arguing  the  question. 

They  are  charged  with  the  power  and  with  "  the  duty  of  supervising,  regulating 
and  controlling  all  transportation  and  transmission  companies  doing  business  in  this 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTIOX  OF  VIRGINIA. 


2213 


State,  in  all  matters  relating  to  the  performance  of  their  public  duties  and  of  their 
charges  therefor." 

Now,  vrith  the  permission  of  the  gentleman  from  Augusta,  .1  will  pause  at  that 
comma  for  a  moment.  "  Charged  v.'ith  the  duty  of  supervising,  regulating  and  con- 
trolling all  transportation  and  transmission  companies  doing  business  in  the  State, 
in  all  matters  relating  to  the  performance  of  their  public  duties  and  of  their  charges 
therefor" — what  matters  in  the  operation  of  a  railroad  company,  or  other  carriers,  do 
not  pertain  to  the  performance  of  their  public  duties?  Is  it  too  much  to  say  that  the 
whole  matter  of  transportation,  the  whole  matter  of  rates,  the  whole  matter  of  con- 
veniences for  the  public,  the  whole  matter  of  schedules,  the  whole  matter  of  the 
establishment  of  depots — the  list  is  too  long  for  me  to  go  over  it  by  memory — that 
everything  which  pertains  to  the  earning  power  of  the  railroad  company  has  relation 
to  its  duties  concerning  the  public?  Give  them  the  power  to  control  the  railroad  com- 
panies in  all  of  these  matters,  and  you  take  away  from  the  companies  themselves 
the  management  of  everything  which  relates  to  their  earning  power. 

You  take  away  from  them  every  power,  so  far  as  I  can  generalize  upon  the 
moment,  except  that  of  making  contracts  for  the  purchase  of  supplies;  but  you  do 
not  take  away  from  them  one  single  pound  of  the  burden  or  responsibility  which  rests 
upon  them  as  trustees  of  the  men  who  have  intrusted  their  property  and  their  money 
to  their  management,  nor  do  you  take  away  from  them  the  obligation  and  the  respon- 
sibilitj"  which  they  owe  to  the  State,  and  to  the  citizens  of  the  State,  for  the  safe  con- 
duct of  their  business,  so  that  the  citizens  of  the  State  may  be  safely  transported 
upon  the  vehicles  of  these  carriers,  I  would  like  to  ask  3'ou,  in  fairness — just  in  fair- 
ness, gentlemen;  just  in  good,  ordinary,  common-sense  fairness,  and,  if  I  may  use  the 
words  without  offense,  in  common  decency  and  common  honestj^ — whether,  if  you  take 
awaj^  from  the  railroad  companies  the  power  of  the  management  and  operation  of 
their  property,  the  State  should  not  assume  the  responsibilities  which  rest  upon  these 
men  from  whom  the  power  is  taken,  and  assume  the  ownership  of  all  these  carriers 
in  the  State?  How  does  this  section  direct  that  these  powers  shall  be  exercised? 
"  And  to  that  end  " — to  the  end  of  supervising,  regulating  and  controlling  these  cai^ 
riers  in  all  matters  relating  to  the  performance  of  their  public  duties  and  charges 
therefor — "  the  said  commission  shall,  from  time  to  time,  prescribe  and  enforce  against 
such  companies,  in  the  manner  hereinafter  authorized,  such  rates  of  charges,  classifica- 
tions of  traffic  and  rules  and  regulations,  and  shall  require  them  to  establish  and  main- 
tain all  such  public  service,  facilities  and  conveniences  as  the  said  commission  may, 
within  the  limitations  of  the  Constitution  of  this  State  and  of  the  United  States,  deem 
reasonjSble  and  just." 

Considering  the  language  which  I  have  just  read,  was  there  any  reason  for  the 
gentleman  from  Augusta  CMv.  Braxton)  to  ask  me  not  to  stop,  after  stating  that  the 
commission  should  have  the  power  and  be  charged  with  the  duty  of  supervising,  reg- 
ulating and  controlling  all  transportation  and  transmission  companies  doing  business 
in  this  State?  Is  there  anything  further,  after  the  comma  at  which  I  paused,  to 
restrict  the  power  given  by  the  general  language  which  I  had"  read?  They  are  to  pre- 
scribe, from  time  to  time,  in  the  manner  hereinafter  authorized,  "  such  rates  of 
charges,  classification  of  trafiic  and  rules  and  regulations,  and  shall  require  them  to 
establish  and  maintain  all  such  public  service,  facilities  and  conveniences  as  the  said 
commission  may,  within  the  limitations  of  the  Constitution  of  this  State  and  of  the 
United  States,  deem  reasonable  and  just."  I  should  hardly  suppose,  Mr.  Chairman, 
that  in  this  body  there  could  be  found  a  gentleman  who  would  not  fully  appreciate  the 
meaning  of  the  word  "  control  "  and  the  extent  of  the  power  given  by  the  use  of  that 
word.  But  to  show  to  this  committee,  Mr.  Chairman,  what  the  chairman  of  the  Com- 
mittee on  Corporations  thinks  it  means,  I  will  read  from  his  own  language,  and,  in  an 
interruption  to  an  address  before  the  Committee  on  Corporations,  when  we  were  giving 
public  hearings.  How  does  the  chairman  of  the  Committee  on  Corporations  expect 
that  word  "  control  "  to  be  construed  and  that  power  to  be  exercised?    A  gentleman 


2214  DEBATES  OE  THE  CONSTITUTION"AL  CONVENTION  OE  VIRGINIA. 

was  making  an  argument  before  the  committee  to  show  that  it  would  be  impossible 
to  select  three  men  in  the  United  States  who  would  have  the  physical  ability  or 
mental  capacity  to  perform  the  onerous  duties  which  are  imposed  upon  tEis  commission 
by  this  article.  The  chairman  of  the  committee  interrupted  him  and  asked  him,  "Are 
there  not  several  roads  whose  total  mileage  is  more  than  that  (more  than  the  mileage 
in  Virginia),  and  whose  traffic  is  controlled  by  one  man?  Take  the  Southern  Railway, 
for  instance;  has  not  that  road  two  or  three  times  as  much  mileage  as  there  is  in 
the  State  of  Virginia,  and  is  not  that  under  the  management  and  operation  of  one 
man?" 

The  answer  was:  "Under  the  control,  but  not  under  the  management  and  opera- 
tion of  one  man." 

The  chairman  then  said :  "  We  do  not  say  here  that  it  is  to  be  under  the  manage- 
ment of  one  man,  but  he  would  control  it  just  as  the  general  freight  agent  of  the 
Southern  Railway  controls  the  rates." 

Can  you  have  any  more  direct  statement  of  the  intention  of  this  article,  so  far  as 
it  is  construed  by  the  chairman  of  the  committee,  than  this,  that  this  commission  shall 
take  exactly  the  same  control  over  the  question  of  rates  and  the  management  of 
traffic  as  the  general  freight  agent  of  the  Southern  Railway  does.  If  that  is  not  taking 
out  of  the  hands  of  the  company  the  management  of  its  own  property  and  giving  to 
a  State  commission  the  power  to  control  it,  even  almost  to  confiscation,  then,  in  the 
name  of  the  lovers  of  the  English  language,  what  does  it  mean?  The  chairman  seeks 
to  explain  that  proposition,  and  says:  "He  does  not  personally  make  all  the  calcula- 
tions and  do  all  the  clerical  work,  but  it  is  under  his  supervision  and  control,  and  he 
has  three  times  as  much  mileage  under  his  jurisdiction  as  there  is  in  the  State  of  Vir- 
ginia." 

Now,  do  not  let  us  quibble  about  this.  Let  us  try  to  get  our  minds  together  as 
honest,  earnest,  sensible  men,  desiring  to  deal  fairly  and  justly  between  man  and  man. 
Tell  me  if  the  provision  of  this  article,  as  constructed  by  the  chairman  himself,  does 
not  take  the  management,  the  absolute  management,  of  the  freight  and  traffic  depart- 
ment of  the  railroads  out  of  the  hands  of  the  boards  of  directors  and  the  general 
freight  agents  and  put  them  into  the  hands  of  this  commission? 

So  much  for  the  management  of  the  traffic  department  of  railroads.  That  is  what 
this  commission  is  to  have  the  power  to  do.  It  is  to  have  the  power  to  m_anage  and 
control  the  traffic  departments,  just  exactly  as  the  general  freight  agent  has  now, 
upon  whom  all  the  fixing  and  prescribing  of  rates  finally  rests.  How  about  the  other 
departments?  If  the  chairman  of  this  Committee  on  Corporations  construed  the  word 
"  control  "  to  mean  that  much  in  respect  to  the  traffic  department,  is  it  not  fair  to 
suppose  that  he  would  construe  in  the  same  way  the  same  word  in  the  same  sentence 
in  relation  to  those  other  departments  of  railroad  management  and  operation  which 
deal  with  the  establishment  and  maintenance  of  all  such  public  service,  facilities  and 
conveniences  as  the  commission  may  think  just  and  reasonable?  Can  he  construe  the 
word  "  control  "  in  that  wa.y  with  reference  to  the  traffic  department  and  deny  that  it 
has  the  same  meaning  in  reference  to  these  other  departments,  the  fixing  of'  schedules, 
the  building  of  depots,  and  all  the  various  subjects  which  come  under  the  control  and 
management  of  the  general  manager  of  a  railroad  company?  And  if  that  is  what  this 
provision  means,  gentlemen,  I  ask  you,  is  it  not  equivalent  to  taking  away — is  it  not 
in  fact  taking  away — from  these  companies  the  management  of  their  own  property, 
placing  that  management  in  the  hands  of  the  State  Commission,  and  leaving  upon 
the  companies  themiselves  the  bare  responsibility  for  injury  to  investors  and  for 
damages  to  citizens  incurred  by  what  might  turn  out  to  be  the  bad  management 
of  this  very  railroad  commission  itself? 

Now,  gentlem^en,  I  say,  and  I  say  it  sincerely,  that  this  is  too  much  power  to  put 
in  the  hands  of  this  commission.  I  will  not  repeat  the  argument,  to  which  I  have 
briefly  referred,  that  it  places  upon  these  men  more  work,  requiring  technical  know- 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA.  2215 

ledge,  more  duties  than  they  could  possibly  perform  in  a  way  which  would  be  satisfac- 
tory and  safe  to  the  people  of  this  State. 

But  I  go  a  little  further  than  that.  I  know  I  am  speaking  to  Virginia  gentlemen, 
each  one  of  whom,  in  his  personal  relations  to  his  fellowmen,  v/ould  rather  have  his 
arm  withered  at  his  side  than  to  fail  to  recognize  the  obligations  of  reciprocal  considera- 
tions growing  out  of  relations  between  the  two.  I  say  this  is  not  a  question  only  of 
the  State  bestowing  upon  the  carriers  these  great  powers  in  consideration  of  the 
performance  by  them  of  public  service.  This  is  not  a  gift  for  nothing.  It  is  a  gift 
for  the  purpose  of  obtaining  a  result;  a.nd  I  say  that  on  the  part  of  the  railroad  com- 
panies it  is  not  an  acceptance  without  conditions,  express  or  implied.  The  State  says. 
In  effect,  to  the  railroad  companies,  "  Come  here,  invest  your  money  under  the  protec- 
tion of  our  laws,  perform  these  public  services  for  us,"  and  then,  because  a  State  can- 
not sYvear  by  another,  it  swears  by  its  own  honor  that  they  shall  be  protected  in  all  the 
reasonable  exercise  of  the  power  which  they  have-  not  had  given  to  them,  but  which 
they  have  bought  from  the  State.  It  is  not  a  one-sided  question?  Individuals,  singly 
or  in  associations,  have  their  rights  as  well  as  the  public  at  large. 

Mr.  Chairman,  I  am  taking  more  time  than  I  intended.  The  minority  of  the  Com- 
mittee of  Corporations  feel,  and  felt,  that  that  was  too  great  a  power  to  give  to  this 
commiission  without  some  extraordinary  necessity.  They  felt  that  the  situation  sur- 
rounding the  people  of  Virginia  as  regards  the  common  carriers  was  not  such  as 
demanded  such  drastic  treatment.  They  felt  that  unless  the  situation  did  demand  it, 
it  was  a  violation  of  all  honor  and  trust  and  confidence  in  the  State  to  take  away  from 
these  people  practically  the  earnings,  of  their  brain  and  the  results  of  their  investi- 
ments.  We  were  perfectly  willing  to  admit,  and  have  admitted,  the  power  to  do  it. 
We  might  have  been  willing  to  admit  the  propriety  of  doing  it  if  these  carrier  Ishmae- 
lites  had  in  fact  raised  their  hand  against  every  man  or  against  the  interests  of  the 
State.    Have  they  done  it? 

I  shall  not  go  into  this  question  of  rates  and  detail.  It  was  so  much  better  done 
than  I  could  possibly  do  it  by  the  gentleman  from  Fauquier  in  his  presentation  of 
the  minority  report  that  I  will  not  reduce  its  affect  by  a  weak  repetition.  I  call  your 
attention  simply  to  this  fact,  and  it  is  just  as  irrevocable  a  fact  as  are  any  other  of 
those  great  eternal  facts  upon  which  we  lean  for  our  hope  of  salvation,  that  the  rates 
in  Virginia  are  comparatively  as  low  for  the  same  class  of  traffic  as  they  are  in  any 
of  the  States  that  have  these  drastic  forms  of  commissions  imposed  upon  them  by  the 
State  Legislature.  I  am  not  going  to  explain  that  fact.  I  am  not  going  to  undertake 
to  tell  you  how  it  has  occurred.  I  do  not  know;  but  I  do  think  I  know  as  wedl  as 
the  gentlem.an  from  Manchester  (Mr.  Ingram),  who  says  that  the  rates  in  Southwest 
Virginia  and  in  the  Valley  are  made  low  by  reason  of  the  competition  of  the  James 
river  and  the  Rappahannock.  I  will  not  undertake  to  explain  this  fact.  I  do  not  know 
why  it  is,  unless  it  be  that  it  is  the  result  of  the  inter-action  of  commercial  forces.  But 
this  is  what  I  do  insist  upon,  that  the  situation  in  Virginia  does  not  show  such  relations 
between  the  railroad  companies  and  the  people  of  the  State  as  justifies  this — I  had 
almost  said,  and  I  say  it  now  with  an  apology — ^highway  robbery  under  the  forms  of 
law. 

We  recognize  that  all  men  are  human.  We  recognize  tlie  truth  of  that  Latin 
sentence  which  we  used  to  translate  in  the  distant  past,  when  the  gentleman  from 
Manchester  was  reading  his  mythology  and  learning  those  finely  turned  phrases 
which  tickle  the  ear  but  dull  the  intelligence.  We  recognize  that  men  are  human. 
We  recognize  that  they  will  err. 

We  say  "govern  these  railroads  by  the  same  system  of  law  by  which  you  under- 
take to  prevent  other  people,  the  citizens  of  the  State,  from  violating  the  laws  of  the 
State."  What  have  they  done  that  you  should  establish  for  them  a  different  philosophy 
of  law,  a  different  philosophy  of  human  government,  a  different  method  of  procedure 
to  prevent  the  violations  of  the  law,  than  you  prescribe  for  the  individuals  who  are 


2216  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

the  citizens  of  your  State?  Punish  them  in  advance!  The  Gentleman  from  Augusta 
says,  "  We  will  apply  the  ounce  of  prevention  rather  than  wait  for  the  pound  of  cure." 
Punish  them  in  advance!  Take  out  of  their  hands  their  property,  because  its  vast- 
ness  gives  a  power  which  may  become  dangerous.  Assume  that  they  are  going  tO) 
violate  all  the  laws  of  the  land,  and  punish  them  in  advance  by  taking  away  from 
them,  by  fining  them,  the  amount  of  their  earnings,  or  by  at  least  depriving  them  in 
some  great  degree  of  their  right  of  property  in  the  State  of  Virginia! 

We  feel  that  all  that  is  necessary  to  be  accomplished  in  this  respect  can  be  accom- 
plished by  the  regulation  and  supervision,  not  going  to  the  extent  of  absolute  control 
and  management  of  these  companies  in  respect  to  freight  traffic  and  to  public  con- 
veniences and  appliances.  Now,  having  that  view  in  our  minds,  we  have  presented 
an  article  which  we  think  gives  all  of  the  powers,  provides  for  the  correction  of  all 
the  violations  of  law,  places  before  these  railroad  companies  and  other  carriers  the 
knowledge  of  the  fact  that  their  impositions,  if  there  are  impositions,  their  extortions, 
if  there  are  extortions,  upon  the  people  of  the  State,  shall  be  corrected,  and  they  shall 
be  punished. 

Now,  Mr.  Chairman,  I  shall  run  over  this  report  of  ours,  very  quickly.  I  have 
nearly  exhausted  myself,  and  I  feel  the  committee  might  be  very  justly  exhausted, 
but  I  feel  a  deep  interest  in  this  matter.  I  do  not  often  feel  justified  in  trespassing 
upon  the  time  of  the  committee.  I  never  do  it  unless  I  feel  impelled  to  it  by  such 
deep  interest  in  the  subject  as  makes  me  feel  that  it  would  be  a  failure  of  my  duty  to 
myself,  to  the  Convention  and  to  my  people  if  I  held  my  peace. 

It  has  been  said,  Mr.  Chairman,  in  regard  to  this  minority  report,  that  it  is  ineffi- 
cient. It  has  been  said  that  it  does  not  provide  any  proper  method  of  regulation  and 
control.  It  has  been  derided  as  being  made  up  of  the  Interstate  Commerce  act  and  of 
the  Mason  bill,  as  the  argument  of  the  gentleman  from  Manchester  on  that  subject 
would  lead  you  to  believe.  If  you  did  not  make  any  examination  of  it,  that  this  report 
of  the  minority  of  the  committee  is  an  embodiment  of  the  Interstate  Commerce  act, 
with  all  of  its  infirmities  on  its  head,  and  an  embodiment  of  the  Mason  act  without 
the  change  of  a  comma,  the  dotting  of  an  i  or  the  crossing  of  a  t.  It  shows  you,  gentle- 
men— I  mean  it  not  offensively — how  unfairly  this  proposition  has  been  presented  by 
the  gentlemen  on  the  other  side. 

May  I  ask  your  attention  just  for  a  few  moments  to  this  consideration — I  hope  it 
may  be  worth  your  consideration; I  offer  it  as  worthy  your  attention:  We  are  here 
to  make  laws;  we  are  here  to  make  laws  in  this  respect,  dealing  with  a  situation.  Is  it 
not  fair,  is  it  not  right,  is  it  not  proper  that  we  should  approach  the  performance  of  that 
duty  along  the  safest  lines  which  we  can  discover?  Shall  we,  regardless  of  the  destruc- 
tive effects  of  any  fundamental  error  on  our  part,  go  careering  through  the  realm  of 
guess-work,  carried  hither  and  thither  by  every  apparently  attractive  theory  which 
presents  itself,  absolutely  untried  and  unknown?  If  any  of  you  lawyers  have  before 
you  the  preparation  of  a  difficult  contract,  if  you  are  called  upon  to  prepare  any  legal 
paper  which  is  to  be  binding  for  a  number  of  years,  and  is  to  deal  in  great  elaboration 
with  many  details  and  many  possibilities  in  the  future,  do  you  not,  as  a  matter  of 
practice,  feel  relieved,  do  you  not  feel  that  you  are  getting  on  safe  ground  if  you  can 
find  anywhere,  to  guide  you  in  the  preparation  of  that  contract,  or  important  paper, 
some  other  paper  of  a  similar  kind,  some  other  contract  of  a  similar  kind,  which,  by 
reason  of  its  long  existence,  by  reason  of  the  trial  to  which  it  has  been  submitted,  has 
shown  both  its  excellencies  and  its  defects,  enabling  you  to  follow  the  one  and  to  avoid 
the  other?  And  when  we  come  to  consider  an  article  which  is  to  deal  with  these 
important  interests  for  a  generation,  probably,  to  deal  with  these  complicated  matters, 
to  pass  this  absolute  power  away  from  the  owners  of  the  property  into  the  hands  of 
the  administrators  of  the  State,  is  it  not  good  policy,  at  least,  it  is  not  safe  procedure, 
to  take  as,  a  basis  of  such  a  plan  some  act — I  do  not  care  whether  it  is  the  Interstate 
Commerce  act,  or  another — but  some  law  which,  by  virtue  of  its  trial,  stands  now  with 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIRGIXIA.  2217 


all  of  its  excellencies  emphasized,  upon  its  face,  and  "^-itli  all  of  its  defects  written 
in  italics  in  the  minds  of  the  people?  But  you  would  not  be  justified,  nor  would  we, 
in  taking  any  such  statute  with  its  defects  thus  pointed  out,  without  some  effort  to 
correct  ii;  and  there,  gentlemen,  is  where  I  say  comes  in  the  unfairness,  in  spirit  if 
not  in  intention,  of  the  argument  of  the  gentlemen  who  made  the  atta-ck  upon  this 
miniority  report. 

The  report  is,  in  large  part.,  based  upon  the  Interstate  Commerce  act.  Now, 
gentlemen,  I  shall  not  detain  you  with  any  historj^  of  that  act.  I  will  only  say  this, 
that  the  committee  which,  after  eleven  years'  examination  and  testing,  succeeded  in 
getting  the  Reagan  bill  passed  through  Congress  under  the  name  of  the  Interstate 
Commerce  act — and  they  started  their  work  just  upon  the  same  principles  upon  which 
we  are  endeavoring  to  start  ours — svvept  the  field  of  legislation,  to  see  if  they  could 
find  some  act  dealing  with  the  same  subject  which  had  been  tried  and  by  its  trial 
had  been  proved  either  good  or  bad.  They  took  the  railroad  act  of  England,  passed 
in  1S54  and  amended  in  1873,  and  after  investigating  the  situation,  after  investigating 
the  surroundings,  after  investigating  in  every  point  and  every  direction  that  they 
could,  for  eleven  long  years,  they  put  this  Interstate  Commerce  act  upon  the  statute 
books  of  the  United  States. 

There  it  has  been  since  18S9.  There  it  has  been  undergoing  trial  for  all  those 
years.  Defects  have  been  discovered  in  it — defects  which  have  gone  far  to  deprive  it 
of  the  value  which  it  was  supposed  it  would  have  to  the  people  of  this  counfrj^  Now, 
is  it  not  fair,  in  undertaking  to  construct  an  article  of  this  sort,  to  take  that  act  as  a 
basis,  and,  avoiding,  if  we  can,  correcting  where  we  can,  the  defects  which  have 
become  marked  in  trial,  submit  that  to  the  people  of  Virginia  as  an  act  which  will, 
honestly  and  with  due  regard  to  the  rights  of  all  the  people,  regulate  and  supervise 
these  railroads  in  the  exercise  of  their  powers? 

Now,  :\Ir.  Chairman,  I  did  desire  to  go  through,  to  some  extent,  the  defects  in 
that  act  which  have  been  brought  to  light  by  trial,  and  show  how  we  have  attempted 
to  correct  them  in  our  own  report.  If  we  have  not  corrected  them,  if  the  language 
is  not  sufficient  to  carry  out  the  intention  to  correct  these  defects,  then  I  say  for 
myself,  and  I  think  I  can  say  for  the  other  members  who  signed  the  minority  report, 
that  if  our  failure  has  come  from  our  inexperience  and  inadeptness  in  the  use  of  the 
Eng:lish  language,  strengthen  the  language  to  carry  out  the  honest  purpose  of  the 
minority  of  the  committee,  and  we  will  accept  it. 

The  gentleman  from  Fauquier  went  over  this  question  so  thoroughly  that  I  shall 
but  briefly  touch  upon  it.  It  seems  that  under  the  Interstate  Commerce  act  the  com- 
mission, after  investigating,  had  only  the  power  to  direct  the  offending  carrier  to 
"  cease  and  desist "  from  that  particular  violation  of  the  law.  ^Tien  he  went  into 
court,  after  the  carrier  had  failed  to  obey  the  order  to  cease  and  desist,  if  the  court 
thought  the  carrier  was  wrong  and  the  carrier  was  right,  it  had  the  power,  through 
the  writ,  only  to  enforce  the  lawful  order  of  the  commission.  That  lawful  order  the 
Supreme  Court  of  the  United  States  has  held  can  go  no  further  than  to  direct  the 
carrier  to  "  cease  and  desist  from  the  particular  violation  of  the  law.  The  mandamus — 
if  it  were  a  mandamus,  the  injunction — if  it  were  an  injunction,  could  go  no  further 
than  to  enforce  the  lawful  order  of  the  commission,  and  as  the  lawful  order  of  the 
commission  was  only  to  '"'  cease  and  desist "  the  courts  had  the  right  to  issue  no  larger 
order  than  to  direct  the  offending  carrier  to  "  cease  and  desist." 

It  soon  became  apparent  that  this  was  ineffective,  because  the  order  could  be 
obeyed  without  a  removal  of  the  cause  of  complaint.  As  the  gentleman  from  Fauquier, 
I  believe,  illustrated  on  yesterday,  if  the  complaint  was  that  there  was  a  charge  of 
fifty  cents  per  hundred-weight  on  a  certain  class  of  freight,  and  the  order  of  the  com- 
mission, after  examination,  was  that  the  railroad  company  or  carrier  should  "  cease 
and  desist "  from  charging  fifty  cents,  they  could  evade  the  power  of  the  court,  they 
could  annual  the  power  of  the  commission,  by  reducing  their  charge  to  forty-nine  cents. 
140 — Const.  Deb. 


2218  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

They  would  then  have  "  ceased  and  desisted  "  from  charing  fifty  cents,  but  the  order 
of  the  court,  and  their  so-called  compliance  with  it,  would  not  bring  about  a  correction 
of  the  cause  of  complaint. 

We  think  we  have  corrected  that.  We  think  we  have,  by  our  article,  given  to 
this  commission  and  to  the  court  enforcing  its  order,  not  only  the  power  to  say  what 
shall  not  be  done,  but  the  power  to  say  what  shall  be  done  in  order  to  remove  the 
cause  of  complaint.  I  will  not  go  further  than  to  make  that  statement.  Some  sug- 
gestion was  made  by  the  gentleman  from  Richmond  (Mr.  Meredith)  on  yesterday  that 
probably  our  language  was  not  apt  to  give  that  pov/er.  I  say  to  him,  as  the  gentleman 
from  Fauquier  said  to  him,  if  it  is  not  apt  to  give  that  power,  that  is  the  power  which 
we  desire  to  give,  then  we  will  accept  an  amendment  which  will  make  it  absolutely 
above  dispute. 

By  common  consent,  by  the  utterances  of  the  men  who  have  been  most  intimate 
with  the  operations  of  this  Interstate  Commerce  Commission,  by  writers  who  have 
been  hostile  to  it,  this  has  been  found  the  main  defect  in  the  Interstate  Commerce  act. 
This  has  been  what,  almost  alone,  prevented  the  other  admirable  provisions  of  the 
act  carrying  relief  wherever  relief  was  desired,  and  wherever  relief  was  proper. 

Another  objection  to  the  Interstate  Commerce  act^  another  alleged  defect  in  it, 
was  that  by  reason  of  the  commission  not  having  the  power  itself  to  enforce  its  orders, 
and  having  to  apply  to  the  courts  to  enforce  them,  railroad  lawyers,  by  ingenuity,  possi- 
bly by  subterfuge,  maybe  by  their  greater  information  and  talent,  succeeded  in  post- 
poning and  delaying  the  trial  of  these  cases  until,  through  delay  there  was  a  loss  and 
a  denial  of  justice.  If  that  is  so,  it  was  a  defect;  and  I  believe,  I  have  no  reason  to 
doubt,  that  it  is  so;  but  what  have  we  done?  We  have  tried  to  correct  this  defect 
also,  and  that  in  the  face  of  the  statement  made  by  the  gentleman  from  Manchester 
that  we  have  given  you  the  old  Interstate  Commerce  act.  We  have  tried  to  correct 
it.  If  you  will  take  this  act  which  we  offer  for  your  consideration  and  make  the 
calculations  of  the  time,  you  will  find  that  in  twenty  days  from  the  time  the  com- 
mission issues  its  order  to  correct  an  error  you  have  your  case  either  in  court  itself, 
standing  first  on  the  docket  of  all  civil  cases,  or  you  have  it  in  the  hands  of  a  court 
sitting  in  vacation. 

Now,  gentlemen,  that  is  not  a  thing  to  be  overlooked.  If  there  has  been  any 
trouble  about  the  Interstate  Commerce  act  because  of  the  delays,  have  we  not 
attempted  in  this  minority  report  to  correct  them?  Will  you  make  the  calculation  and 
see  whether  what  I  have  said  is  not  true?  When  a  person  feels  he  has  been  injured 
by  the  carrier,  he  makes  his  application  to  the  commission.  The  commission  then  gives 
notice  to  the  common  carrier  and  takes  up  the  case  and  investigates  it.  If  it  finds 
that  the  common  carrier  is  wrong,  it  issues  a  notice  or  a  service  or  an  order,  whatever 
you  choose  to  call  it,  to  the  carrier  to^  correct  the  cause  of  complaint.  If  within  ten 
days  the  carrier  does  not  correct  the  cause  of  complaint,  then  the  commission  turns 
the  facts  over  to  the  attorney-general  of  the  State,  and  it  rests  with  him  to  some 
extent  as  to  how  soon  the  application  may  be  made  to  the  court.  But  the  direction 
is  that  he  shall  give  ten  days'  notice  to  the  carrier  of  the  fact  that  he  is  going  to 
apply  to  the  court  for  redress,  and  give  in  his  notice  the  cause  of  complaint.  At  the 
expiration  of  ten  days  more,  being  twenty  days  in  all,  the  attorney^general  doing  his 
duty,  as  he  always  will,  we  have  in  court  at  the  expiration  of  twenty  days  the  case 
of  the  complainant  against  the  railroad  company  in  court,  with  a  right  of  way  over  the 
other  cases,  or  we  have  a  case  before  a  court  sitting  in  vacation,  with  no  other  case 
having  any  right  of  way  at  all. 

Those  are  the  defects  in  the  Interstate  Commerce  act  which  we  have  tried  toi 
correct.  They  are  the  defects  in  the  Interstate  Commerce  act  which  have  been 
developed  by  trial.  They  are  the  defects,  and  almost  the  only  defects,  in  the  Interstate 
Commerce  act  which  have  been  pointed  to  as  rendering  that  act  Inefficient  and  of 
no  avail. 

It  has  been  said  that  this  proposition  of  ours  is  not  efficient.    I  hardly  know,  sir, 


DEBATES  OF  THE  COJ^STTTUTIOJTAL  CO^'VENTIOX  OF  VIRGINIA.  2219 

how  to  begin  the  discussion  of  that  question.  I  promise  the  already  wearied  committee 
that  I  shall  take  but  a  few  moments  in  disposing  of  it  from  our  standpoints,  I  can- 
not, for  the  life  of  me,  see  how  it  can  be  claimed  that  when  we  put  behind  the  hum- 
blest complainant  against  a  railroad  company  or  a  carrier,  complaining  of  a  loss  by 
overcharge  of  fifteen  cents,  perhaps,  when  we  put  behind  a  man  with  such  a  small 
claim  as  that  against  this  great  carrier,  all  the  power  of  the  treasury  of  the  State  of 
Virginia,  all  of  the  power  of  the  prosecuting  officers  of  the  State  of  Virginia,  and  have 
his  case  prosecuted  for  him  by  the  officers  of  the  State  without  cost  and  without 
charge,  and  have  it  prosecuted  in  those  courts  to  which,  sir,  you  or  I  or  any  of  us 
would  have  to  appeal  for  the  protection  of  our  lives,  property  or  sacred  liberty,  it  is  not 
makirg  an  inefficient  provision  for  the  poor  complainant  against  the  great  carrier — 
when  all  he  has  tO'  do  is  to  go  to  the  commission  and  make  his  complaint.  V/iiether 
it  involves  37S  cents  or  $37,000,  it  yet  becomes  the  -duty  of  the  commission  to  fake  it 
up  and  investigate  it  without  cost  to  him,  without  labor  to  hirn.  If  they  find  he  has 
been  wronged,  then  they  issue  their  order  to  the  carrier  to  remove  the  cause  of  com- 
plaint. 

If  the  carrier  does  not  do  it  in  ten  days,  they  call  upon  the  highest  executive 
officer  in  the  State  Judiciary  Department,  the  attorney-general  of  the  State,  and  lay 
it  upon  him,  by  virtue  of  his  oath  of  office  to  faithfully  discharge  the  duties  of  th© 
same,  to  present  in  ten  days  that  case,  made  up  by  the  commission,  to  the  court  where 
you,  sir,  would  be  tried  for  your  life  if  you  were  ever  unfortunate  enough  to  be 
brought,  circumstances  requiring  it;  where  I  would  have  to  defend  my  property,  and 
where  you  might  have  to  defend  your  liberty.  And  yet  they  say  we  are  not  providing 
for  this  injured  poor  man  all  the  efficiency  v/hich  can  grow  out  of  putting  at  his  back, 
to  pay  the  costs  and  expense  of  his  complaint,  the  treasury  of  the  State  of  Virginia, 
putting  at  his  side,  to  prosecute  the  case,  all  of  the  able  prosecuting  attorneys  of  Vir- 
ginia under  the  leadership,  and  guidance,  and  direction,  and  under  the  duty  imposed 
upon  him  by  the  law  to  see  that  they  do  their  work,  of  the  attorney-general  of  the 
State  of  Virginia,  and  then  turning  them  over  to  the  same  courts  which  try  all  other 
questions  as  between  man  and  man,  and  between  the  State  and  the  members  of  society. 

Now,  Mr.  Chairman  and  gentlemen,  I  have  occupied  much  more  time  than  I 
intended  to  occupy.  I  feel  that  I  have  been  ineffective  and  possibly  confused  in  the 
presentation  of  our  side  of  this  question,  and  I  can  only  ask  you  not  to  visit  upon  this 
efficient  measure  the  infirmities  of  its  supporters;  but  to  take  these  two  measures, 
take  the  conditions  which  exist  around  us,  take  the  necessities  of  the  case,  and  say 
whether  it  is  not  fairer,  whether  it  is  not  more  in  consonance  with  the  principles  of 
justice  between  man  and  man,  whether  it  is  not  fairer  in  view  of  the  implied  contract 
made  by  the.  State  in  granting  these  franchises  that  they  should  not  be  ruthlessly 
destroyed,  whether  it  is  not  more  in  keeping  with  the  record  of  our  old  State  not  to 
adopt  a  measure  which  undertakes  to  punish  a  man  in  advance  for  crimes  which  ho 
may  commit,  but  tO'  adopt  the  one  which  says  to  him,  "  There  is  a  power  in  this  land 
which  will  see  to  it  that  if  you  do  violate  any  of  the  laws  of  this-  land,  you  shall  be 
held  to  the  same  accountability,  through  the  same  instrumentalities  and  through  the 
same  courts  as  any  other  citizen,  and  you  shall  always,  in  that  way,  be  made  to  respect 
the  duties  which  the  powers  and  franchises  granted  to  you  have  imposed  upon  you. 

I  thank  you,  gentlemen.  (Applause.) 

Mr.  Kendall:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  feel  almost  as 
if  I  were  doing  a  wrong  to  this  committee  when  I  undertake  to  add  to  what  has  been 
so  well  said  by  the  chairman  and  the  gentleman  from  Manchester  in  defense  of  the 
majority  report  upon  the  subject  now  before  the  committee.  I  wish  that  I  could  post- 
pone to  another  occasion  what  I  now  have  to  say;  but  it  suits  the  plans  of  those  who 
wish  to  further  the  interests  of  that  report  that  I  should  speak  at  this  time.  I  shall 
call  yonr  attention,  for  a  very  short  while,  to  a  few  points  which,  it  seems  to  me,  have 
not  been  presented  to  this  committee  in  their  true  and  legal  aspect. 


2220 


DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


It  ia  admitted  by  the  minority,  or  those  who  represent  the  minority  report,  that 
the  people  have  grievances  against  the  railroads.  It  is  admitted  that  vi^rongs  are  done 
intentionally  or  unintentionally.  That  admission  is  expressly  made  in  this  debate, 
It  is  inferentially  admitted  that  wrong  is  sometimes,  if  not  oftentimes,  intentionally 
done,  because  if  that  is  not  the  fact  there  is  no  excuse  or  reason  for  the  presentation 
of  this  weak  provision  which  these  of  the  minority  report  offer  us.  It  is  true  that  if 
the  people  of  Virginia  are  enjoying,  under  what  the  gentleman  from  Fauquier  denom- 
inated commercial  regulation  or  commercial  rule  or  commercial  law,  cheaper  rates 
and  better  service  than  our  sister  States  of  the  South  are  enjoying,  it  would  not  only 
be  unwise  for  you  to  adopt  the  majority  report,  but  it  would  be  unwise,  also,  for  you  to  adopt 
this  wealding  of  the  minority  report.  You  should  rely  upon  that  commercial  law  and  com- 
mercial regulation  v/hich  has  heretofore  given  you  cheaper  rates  and  cheaper  service  than 
the  commissions  have  given  in  the  State  where  they  have  the  power  to  fix  rates.  It 
is  also  true  that  if  the  railroads  have  been  enjoying  high  rates  in  those  States  where 
the  hand  of  the  law  has  fallen  upon  them  through  commissions  endowed  with  power 
to  fix  rates,  it  would  seem  to  bo  folly  on  their  part  to  object  to  the  provision  which 
we  offer.  And  yet,  as  we  are  not  here  to-day  seeking  consistency,  but  practical 
results,  it  may  be  well  that  we  should  recur  to  the  great  principle  out  of  which  this 
authority  of  law  grows,  and  upon  which  we  base  our  right  here,  if  it  be  in  our  power, 
to  place  this  provision  in  the  Constitution  of  this  State,  and,  Mr.  Chairman,  I  cannot 
better  do  thisi  than  by  quoting  the  language  of  the  Supreme  Court  of  the  United  States 
in  the  decision  of  the  case  of  Munn  vs.  Illinois,  in  an  opinion  delivered  by  Mr.  Chief 
Justice  Waite.  I  am  not  reading  this  decision  of  the  Supreme  Court  so  much  for  the 
benefit  of  the  lawyers  as  for  the  benefit  of  those  who  are  not  lawyers.  That  decision, 
as  you  lawyers  know,  grew  out  of  a  statute  of  the  State  of  Illinois  undertaking  to  fix 
the  rates  which  the  warehouses  should  charge,  which,  I  believe,  had  never  previously 
been  regulated  by  statute  in  any  State  in  this  country.  Upon  an  examination  of  the 
whole  question.    Chief  Justice  Waite  used  this  language: 


When  one  becomes  a  member  of  society,  he  necessarily  parts  with  some  rights 
or  privileges  which,  as  an  individual  not  affected  by  his  relations  to  others,  he  might 
retain.  "  A  body  politic."  as  aptly  defined  in  the  preamble  of  the  Constitution  of 
Massachusetts,"  is  a  social  compact  by  which  the  whole  people  convenants  with  each 
citizen,  and  each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good,"  This  does  not  confer  power  upon  the  whole  people  to 
control  rights  which  are  purely  and  exclusively  private;  but  it  doesi  authorize  the 
establishment  of  laws  requiring  each  citizen  to  so  conduct  himself,  and  so  use  his  own 
property,  as  not  unnecessarily  to  injure  another.  This  is  the  very  essence  of  govern- 
ment, and  has  found  expression  in  the  maxim  sic  utere  tuo  ut  alienum  non  laedas. 
From  this  source  come  the  police  powers,  which,  as  was  said  by  Mr.  Chief  Justice 
Taney  in  the  license  cases.  "  are  nothing  more  or  less  than  the  powers  of  govern- 
ment inherent  in  every  sovereignity,  *  *  *  that  is  to  say,  *  *  *  the  power  to 
govern  men  and  things."  Under  thes.e  powers  the  government  regulates  the  conduct 
of  its  citizens  one  towards  another,  and  the  manner  in  which  each  shall  use  his  own 
property,  when  such  regulation  becomes  necessary  for  the  public  good.  In  their 
exercise  it  has  been  customary  in  England  from  time  immemorial,  and  in  this  country 
from  its  first  colonization,  to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  wharfingers,  inn^keepers,  etc.,  and  in  so  doing  to  fix  a  maximum  of  charge  to 
be  made  for  services  rendered,  accommodations  furnished  and  articles  sold.  To  this 
day,  statutes  are  to  be  found  in  m.any  of  the  States  upon  some  or  all  these  subjects; 
and  we  think  it  has  never  yet  been  successfully  contended  that  such  legislation  came 
within  any  of  the  constitutional  prohibitions  against  interference  with  private  property. 
With  the  Fifth  Amendment  in  force.  Congress,  in  1820,  conferred  power  upon  the 
city  of  Washington  "to  regulate  *  *  *  the  rates  of  wharfage  at  private  wharves, 
*  *  *  sweeping  of  chimneys,  and  to  fix  the  rates  of  fees  therefore,  *  *  *  and 
the  weight  and  quality  of  bread,"  and  in  1848,  "  to  make  all  necessary  regulations 
respecting  hackney  carriages  and  the  rates  of  fare  of  the  same,  and  the  rates  of 
hauling  by  cartmen,  wagoners,  carmen  and  draymen,  and  the  rates  of  commission  of 

auctioneers."  ^,  ^.  ... 

Mr.  Chairman,  I  do  not  read  that  to  show  what  is  the  law  upon  the  question.  All 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2221 


lawyers  recognize  this  power  as  existing  in  the  goTemment,  and  most  of  the  laymen 
recognize  it  as  there  existing;  but  I  read  it  to  you  because  it  shows  that  the  very 
fundamental  rights  upon  which  goTernment  rests  are  those  inyolved  in  the  question 
that  is  now  before  this  committee.  I  read  it  to  you  because,  under  the  burning  elo- 
quence of  the  gentleman  from  Fauquier  and  others  who  liawe  spoken  upon  this  question, 
your  mind  has  been  directed  so  continuously  to  the  wrongs,  injuries  and  oppressions 
of  the  railroads  in  this  Commonwealth,  under  the  provisions  presented  by  the  majority 
of  the  committee,  that  you  hare  forgotten,  I  fear,  there  are  other  rights  to  be  safe- 
guarded and  other  wrongs  to  be  remedied  besides  those  of  which  the  roads  complain. 
There  are  the  rights  of  the  people  to  be  protected.  There  are  wrongs  which  the 
people  endure;  and  it  is  as  much  your  duty  to  look  after  those  rights  and  prevent  those 
wrongs  as  it  is  to  guard  against  abuses  and  wrongs  to  the  corporations. 

It  is,  Mr.  Chairman,  a  condition  upon  which  eveiw  charter  is  granted  to  a  railroad 
that  it  shall  charge  only  reasonable  rates.  Government  itself  has  no  other  povrer  than 
that.  The  government,  if  it  were  exercising  the  rights  which  are  granted  to  the  rail- 
roads, would  not  have  any  constitutional  power  or  right  to  impose  any  rates  other  than 
those  are  known  in  the  law  as  "  reasonable  rates."  If  they  do  impose  any  others,  it 
would  be  a  form  of  taxation  which  could  not  be  justified  upon  any  other  ground  than 
the  necessities  of  government.  I  take  it  for  granted  it  will  be  conceded  that,  in  this 
country  at  least,  the  government  has  no  power  to  grant  any  private  individual  or  any 
corporation,  other  than  a  municipal  corporation,  the  power  of  taxation.  Surely,  there- 
fore, if  it  be  true  that  the  government  has  no  right  to  impose  rates  other  than  those 
which  are  reasonable,  it  has  no  right  to  permit  its  agents  to  do  so,  and,  it  seems  to 
follovr  as  a  necessary  conclusion,  beyond  doubi,  question  or  dispute,  that  if  it  shall 
fail  to  so  manage  and  control  its  agents  as  to  permit  them  to  abuse  the  privilege,  it 
is  failing  in  one  of  the  highest  and  greatest  duties  which  can  come  to  any  govern- 
ment. It  is  of  the  very  essence  of  good  government  that  it  shall  not  permit  those 
whom  it  has  entrusted  with  power  to  so  abuse  that  power  as  to  injure  any  of  its 
citizens.  AMll  any  gentleman  dispute  the  fact  that  it  is  a  part  of  every  charter,  that 
it  is  at  least  written  by  implication  in  every  charter,  of  a  railroad  that  only  reasonable 
rates  shall  be  charged?  If  there  should  be  any  question  upon  that  point  in  the  mind 
of  any  man  here,  I  will  read  to  you  a  very  short  extract  from  a  decision  of  the  Supreme 
Court  of  the  United  States  in  the  case  of  the  Charlotte  Railway  vs.  Gibbs,  142  United 
States: 

"  The  duties  of  the  railroad  commissioners,  when  properly  discharged,  must  be 
in  the  highest  degree  beneficial  to  the  public."  I  trust  this  committee  will  not  fail 
to  note  what  these  gentlemen  are  holding  up  their  hands,  in  alarm  and  consternation, 
at  is  pronounced  by  the  Supreme  Court  of  the  United  States  to  be  highly  beneficial 
to  the  public — "securing  faithful  service  on  the  part  of  the  railroad  companies,  and 
safety,  convenience  and  comfort  in  the  operation  of  their  roads.  That  the  State  has 
the  power  to  prescribe  the  regulations  mentioned  there  can  be  no  question.  TTiough 
railroad  corporations  are  private  corporations,  as  distinguished  from  those  created  for 
municipal  and  governmental  purposes,  their  uses  are  public.  They  are  formed  for 
the  convenience  of  the  public  in  the  transportation  of  persons  and  merchandise,  and 
are  invested,  for  that  purpose,  with  special  privileges.  They  are  allowed  to  exercise 
the  State's  right  of  eminent  domain,  that  they  may  appropriate  for  their  uses  the 
necessary-  property  of  others,  which  can  only  be  exercised  for  public  purposes.  And 
they  assume,  by  the  acceptance  of  their  charters,  the  obligation  to  transfer  persons 
and  merchandise  upon  conditions  and  at  reasonable  rates." 

So,  my  friends,  you  have  at  least  the  sanction  of  the  Supreme  Court  of  the  United 
States  for  the  doctrine  that  it  is  a  part  and  a  condition  of  every  charter  granted  to  a 
railroad  that  they  shall  only  charge  "  reasonable  rates."  If  you  make  that  as  a  con- 
cession to  me,  I  shall  answer  this  further  question:  Whether  it  does  not  follow,  if 
that  is  a  contract  and  a  condition  between  the  road  and  the  State,  it  is  not  the  duty  of 
the  State  to  see  that  the  contract  is  enforced.    Talk  about  wronging  these  people!  Talk 


2223 


DEBATES  OF  TITE  CONSTITUTIOXAL  CONYENTIOX  OF  VIRGINIA. 


about  confiscating  their  property!  I  ask  you  whether  the  State  is  not  rather  neglecting 
this  high  and  great  duty  which  it  owes  to  her  people,  to  see  that  they  are  not  ruined 
and  abused  and — I  might  almost  use  the  word — confiscated  by  the  agents  of  the  State. 

Mr.  Chairman,  if  that  be  true,  we  are  led  to  a  consideration  of  what  are  reasonable 
rates  and  how  they  are  to  be  ascertained.  I  shall  read  you,  as  authority  upon  that 
subject,  a  deliverance  of  the  Interstate  Commerce  Commission,  and  upon  that  subject, 
which  ought  to  be  accepted  as  the  very  highest  in  this  land — a  commission  especially 
selected  for  their  fitness  for  the  positions,  and  composed  of  men  who  have  given  it 
their  attention  for  years: 

"  A  reasonable  rate  is  one  which  will  make  just  and  fair  returns  to  the  carrier, 
when  it  is  charged  to  all  who  are  to  pay  it " — not  to  all  those  whom  the  railroad  may 
choose  to  charge,  not  by  those  whom  it  may  choose  to  favor,  but  the  same  rate  to  all 
alike — "v/ithout  unjust  discrimination  against  any,  and  v/hen  the  revenue  it  produces 
is  subjeect  to  no  improper  deduction."  This,  my  friends,  isi  the  definition  of  a 
"  reasonable  rate." 

And  then  as  to  how  that  rate  shall  be  ascertained  and  enforced  they  say:  "  In 
order  to  know  this,  it  is  the  right  of  the  public  to  know  what  the  corporation  actually 
imposes  and  collects  and  to  have  access  to  its  books  for  that  purposie." 

Although  it  may  be  somewhat  in  the  nature  of  a  repetition,  I  say  it  is  as  much 
the  duty  of  the  State  to  see  to  it  that  no  possible  injustice  is  done  to  the  people  in  this 
matter  as  it  is  to  discharge  any  other  of  the  great  duties  which  the  State  owes  to  the 
people.  If  the  States  were  exercising  this  great  prerogative  and  charged  unjust  rates, 
the  revenues  would  go  into  the  coffers  of  the  State  and  would  be  distributed,  by  way 
of  taxes,  for  the  benefit  of  the  whole  people.  But  when  it  is  granted  to  some  individual, 
then,  I  repeat  and  ask  your  attention  again  to  the  fact,  it  is  granting  away  rights  and 
privileges  in  abuse  of  some  of  the  people  and  in  the  interest  of  others. 

I  come  now,  gentlemen,  to  the  conclusion  that  it  is  the  duty  of  the  State,  v*^hen 
she  has  created  an  agent  with  such  powers,  capable  of  abuse,  to  throw  around  that 
agent  every  supervision  and  control  which  may  be  necessary  to  prevent  it  from  abusing 
those  powers.  What  is  the  great  difference,  Mr.  Chairman,  between  the  provision 
contained  in  the  minority  report  and  that  contained  in  the  majority  report  which  have 
been  presented  to  this  Convention?  It  is,  if  I  understand  the  gentleman  from  Fauquier 
correctly,  that  the  commission,  in  the  majority  report,  is  given  the  power  to  make  rates 
without  having  first  heard  the  complaints  of  the  railroad  and  their  evidence. 

He  argues  that  the  railroad  will  go  to  a  prejudiced  court  when  it  goes  to  a  comr 
mission  which  has  already  fixed  its  rates.  In  the  first  place,  Mr.  Chairman,  I  do  not 
so  construe  the  article  which  we  have  presented.  That  article,  on  the  contrary,  says 
that  all  the  evidence  which  shall  be  heard  by  the  Supreme  Court  shall  have  been  given, 
first  before  the  commission,  and  the  commission  will  of  necessity,  therefore,  have 
heard  the  whole  of  the  evidence  before  rates  have  been  finally  fixed.  I  will  say  further, 
if  that  is  the  only  matter  of  contention  between  us,  for  my  part,  and  I  believe  I  may 
speak  for  the  committee,  I  would  be  perfectly  willing  for  him  to  write  into  this  article 
a  provision  that  no  rate  shall  be  fixed  by  the  commission  until  after  due  notice  to  the 
roads  and  all  the  evidence  which  they  wish  to  offer  shall  have  been  fully  heard.  But 
I  do  claim,  and  contend,  here  and  now,  that  there  is  no  necessity  for  any  such  provision. 
I  dispute  the  position  of  the  gentleman  from  Fauquier  from  start  to  finish,  when  he 
complains  that  the  roads  would  be  called  before  a  judicial  tribunal  which  have  already 
passed  upon  the  question  on  which  they  have  expressed  themselves.  The  fixing  of 
rates  is  not  a  judicial  question  in  any  sense  of  the  word.  It  is  purely  and  alone  a  leg- 
islative act.  Lest  that  proposition  should  be  disputed,  I  shall  again  take  the  liberty  of 
quoting  what  the  Supreme  Court  of  the  United  States  says  upon  the  subject.  In  the 
case  of  the  of  the  Interstate  Commerce  Commission  vs.  Railway,  167th  United  States, 
the  Court  said: 


It  is  one  thing  to  inquire  whether  rates  which  have  been  charged  and  collected 


DEBATES  OF  THE  COXSTTIUTIOXAL  CONYEXTIOX  OF  YIEGIXIA. 


2223 


are  reasenabl^-that  is  a  judicial  act,  but  it  is  an  entirely  different  tiling  to  prescribe 
rates  "U'hich  shall  be  charged  in  the  future — that  is  a  legislative  act. 

Mr.  Hunton:  Do  I  understand  my  friend  to  say  that  I  differ  from  that  proposition 
of  law? 

Mr.  Kendall:  I  understood  you  to  complain  that  this  commission,  acting  as  a  court, 
would  have  the  railroads  c-ome  before  them,  after  having  already  fixed  their  rates,  and 
vould  therefore  be  a  prejudiced  court. 

Mr.  Hunton:  My  proposition  was  this — that,  under  the  report  of  the  majority  of  the 
committee,  the  commission  has,  as  a  legislative  tody,  the  power  to  fix  rates,  and  then,  as 
a  judicial  body,  if  the  ralroads  complain  of  the  rates  they  have  fixed,  the  railroads  have 
to  come  before  the  same  body  that  has  previously,  as  a  legislative  body,  fixed  those 
rates. 

Mr.  Kendall:  I  do  not  believe  the  article  is  subject  to  such  construction.  I  believe 
that  when  the  commission  believes  or  thinks  there  is  a  rate  which  needs  modification, 
it  will  cite  the  road  to  a  hearing  upon  that  question. 

:\Ir.  Hunton:  Have  they  not  the  right  to  fix  it,  primarily,  without  any  hearing 
whatever? 

Mr.  Kendall:  They  may  have  that  right,  and  I  believe  that  no  harm  or  injury 
would  come  to  the  railroads  of  this  State  by  the  exercise  of  the  right  to  primarily  fix 
the  rates.  But  I  believe  that,  in  practice,  they  would  simply  say  to  the  railroads: 
"We  believe  that  certain  rates  which  you  are  now  charging  are  unjust  and  unfair,  and 
we  will  fix  a  day  to  hear  you  upon  that  question."  That  is,  almost  unavoidably,  the 
proper  reading  of  the  article.  I  will  say  to  the  gentleman  that  he  may  write  a  provision 
in  such  language  into  the  article,  so  far  as  I  am  concerned.  But  if  he  means  to  say 
that  because  the  commission  intimates  to  the  road  that  it  has  been  called  to  their 
attention,  or  they  have  reason  to  believe  a  wrong  is  being  done  and  they  call  the  road 
to  account  for  it — that  that  constitutes  a  prejudiced  tribunal,  I  say  to  him  that  I  cannot 
agree  with  him. 

Mr.  Hunton:  If  my  friend  thinks  that  is  the  way  his  provision  will  be  executed, 
does  not  my  friend  think  it  would  be  fair  and  right  to  make  it  obligatory  under  these 
provisions  that  they  should  so  execute  it? 

Mr.  Kendall:  I  say  that  for  myself,  and  I  believe  I  may  speak  for  the  committee, 
if  thaft  is  the  only  complaint  he  has  to  make  about  the  report,  he  may  write  that  pro- 
vision in  to  the  article. 

I  repeat,  Mr.  Chairman,  that  the  fixing  of  a  rate  is  the  discharge  of  a  legislative 
duty.  It  is  nothing  more  than  the  Legislature  itself  might  do,  by  one  of  its  committees 
first  investigating  a  complaint  and  reporting  it  to  the  Legislature.  That  has  been 
done  in  many  of  the  States.  But  the  gentlemen  complain,  in  anguish,  that  they  are 
brought  before  a  committee  that  has  already  formed  an  opinion.  They  are  brought, 
gentlemen,  before  a  commission  performing  its  duties,  under  the  law,  under  circum- 
stances far  more  favorable  to  them  than  the  ordinary  citizen  when  he  is  called  into  a 
court  of  law  with  respect  to  anything  that  pertains  to  his  life.  ^Tio  among  us  are 
called  before  the  Legislature  and  asked  whether  such  and  such  a  principle  of  law  will 
do  injustice  to  us?  They  will  have  the  fullest  opportunity  of  being  heard,  if  they 
wish,  and  the  fullest  opportunity  of  appeal.  They  may  present  what  evidence  they 
desire,  and  carry  it  to  the  highest  court  of  the  land  to  haA'e  their  complaint  heard  and 
and  the  action  of  the  Legislature  revised. 

As  I  listened  to  the  gentleman  from  Fauquier  I  wondered  what  it  was  that  could 
happen  to  the  railroads  of  this  State.  It  seemed  to  me  that  he  had  concluded,  because 
we  proposed  this  measure,  that  it  was  the  purpose  of  this  Convention  and  was  in  the 
hearts  of  the  people  of  this  State  to  wipe  out  and  entirely  destroy  this  great  interest 
of  the  State  and  of  the  people.  Sirs,  that  is  a  falsely  mistaken  view.  It  is  the  com- 
plaint of  a  great,  and  I  might  almost  say,  pampered  interest — an  interest  so  pampered 
that  it  has  forgoTten  its  great  duties  to  the  State  as  a  part  of  its  citizenship.  Let  me 
call  to  the  attention  of  the  gentleman  from  Fauquier  and  the  gentleman  from  Norfolk 


2224  DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

Y/hat  a  different  view  the  Supreme  Court  of  the  United  States  takes  upon  this  subject. 
In  the  case  of  Reagan  vs.  The  Farmers'  Loan  and  Trust  Company  reported  in  154th 
United  States,  it  says: 

Specific  objections  are  made  to  the  act,  on  the  ground  that,  hy  Section  5,  the  rates 
and  regulations  made  by  the  commission  are  declared  conclusive  in  all  actions  between 
private  individuals  and  the  companies,  and  that  by  Section  14  excessive  penalities  are 
imposed  upon  railroad  corporations  of  any  violation  of  the  provision  of  the  act;  and 
thus,  as  claimed,  there  is  not  only  a  limitation  but  a  practical  denial  to  railroad  com- 
panies of  the  right  of  a  judicial  inquiry  into  the  reasonableness  of  the  rates  prescribed 
by  the  commission.  The  argument  is,  in  substance,  that  railroad  companies  are  bound 
to  submit  to  the  rates  prescribed  until  in  a  direct  proceeding  there  has  been  a  final 
adjudication  that  the  rates  are  unreasonable,  which  final  adjudication  in  the  nature  of 
things  cannot  be  reached  for  a  length  of  time;  that  meanwhile  a  failure  to  obey  those 
regulations  exposes  the  company,  for  each  separate  fare  or  freight  exacted  in  excess 
of  the  prescribed  rates,  to  a  penalty  so  enormous  as  in  a  few  days  to  roll  up  a  sum  far 
above  the  entire  value  of  property;  that  even  if  on  a  direct  proceeding  the  rates  should 
be  adjudged  unreasonable,  there  is  nothing  to  prevent  the  commission  from  re-estab- 
lishing rates  but  slightly  changed  and  still  unreasonable,  to  set  aside,  which  requires  a 
new  suit,  with  its  length  of  delay,  and  thus,  it  is  claimed,  the  railroad  companies  are 
tied  hand  and  foot  and  bound  to  submit  to  whatever  illegal,  unreasonable  and  oppressive 
regulations  may    be  prescribed  by  the  commission. 

Gentlemen  of  the  committee,  what  does  the  Supreme  Court  reply  to  that? 

It  is  enough  to  say  in  respect  to  these  matters,  at  least  so  far  as  thisi  case  is  con- 
cerned, that  it  is  not  to  be  supposed  that  the  Legislature  of  any  State,  or  a  commission 
appointed  under  the  authority  of  any  State,  will  ever  engage  in  a  deliberate  attempt 
to  cripple  or  destroy  institutions  of  such  great  value  to  the  community  asi  the  railroads, 
but  will  always  act  with  the  sincere  purpose  of  doing  justice  to  the  owners  of  rail- 
road property,  as  well  as  to  other  individuals,  and  also  that  no  legislation  of  a  State, 
as  to  the  mode  of  proceeding  in  its  own  courts,  can  abridge  or  modify  the  powers 
existing  in  the  federal  courts,  sitting  as  courts  of  equity.  So  that  if  in  any  case  there 
should  be  any  mistaken  action  on  the  part  of  a  State  or  its  commission  injurious  to 
the  right  of  a  railroad  corporation,  any  citizen  of  another  State,  interested  directly 
therein,  can  find  in  the  federal  court  all  the  relief  which  a  court  of  equity  is  justified, 
in  giving.  We  do  not  deem  it  necessary  to  pass  upon  these  specific  objections,  because 
the  14th  section,  or  any  other  section  prescribing  penalities,  may  be  dropped  from  the 
statute  without  affecting  the  validity  of  the  remaining  portions;  and  if  the  rates 
established  by  the  commission  are  not  conclusive,  they  are  at  least  prima  facie  evidence 
of  what  is  reasonable  and  just. 

Just  as  our  article  has  provided.  Under  the  majority  report  we  have  a  right,  first 
of  a  full  and  complete  hearing  before  the  commission,  and  we  then  have  a  further  right 
of  an  appeal,  with  all  that  evidence,  to  the  Supreme  Court  of  the  State;  and  if  injury 
has  been  done  to  them  after  all  this  hearing,  they  may  still  then  take  the  case  to  the 
Supreme  Court  of  the  United  States,  and  if  wrong  or  injury  has  been  'done  them,  fhey 
then  may  get  reparation  there. 

V\^ill  anybody  say  that  they  are  helpless  to  defend  themselves?  Is  it  a  fact  that 
they  are  unable  to  pay  attorneys?  Is  it  a  fact  that  the  courts,  either  state  or  federal, 
have  failed  to  grant  them  a  ready  and  willing  ear?  Who  is  it  in  these  contests,  in  our 
experience  here  in  the  State  of  Virginia,  or  in  these  great  contests  upon  this  very 
interstate  question  before  the  Supreme  Court  of  the  United  States,  who  has  usually 
been  victorious? 

Mr.  Chairman,  it  sounds  to  me  as  if  a  great  and  mighty  giant,  because  a  weak 
and  helpless  babe  held  him  by  the  hands,  was  crying  out  in  mockery,  "Oh,  do  not  hold 
me,  I  want  to  go."  I  say,  therefore,  there  is  nothing  in  this  objection  which  the  gen- 
tlemen v/ho  represent  the  minority  article  have  made,  and  I  have  been  unable  to  hear 
any  other  complaint  that  amounted  to  a  snap  of  your  finger  from  any  wiho  have  spoken 
on  that  side.  They  have  charges  that  we  have  attempled  here  to  prove  that  the  State 
should  manage  the  railroads.  Again  and  again  have  I  heard  this  charge  fall  from 
the  lips  of  speakers,  and  I  will  defy  one  of  those  gentlemen  to  find  the  word  "manage" 
in  the  article  proposed  by  the  majority.    No  such  thing  was  either  provided  or  con- 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


2225 


templated.  No  such  thing  could  by  any  possibility  be  deduced  from  the  article  as  it 
has  been  reported.  I  maintain  here  that  we  not  only  have  provided  for  their  control, 
but  that  is  our  duty  to  provide  for  their  control.  I  miaintain  that  we  have  not 
attempted  to  provide  for  their  management,  and  that  nothing  would  be  greater  folly. 

The  gentleman  from  Norfolk  (Mr.  Brooke),  who  dwelt  at  such  length  upon  this 
question,  has  insisted  that  the  word  "control"  includes  the  word  "management."  Does 
not  the  State  of  Virginia  control  all  of  our  citizens  in  their  public  relations?  Does  not  the 
State  lay  down  rules  and  regulations  that  guide  all  their  private  lives  as  citizens? 
Does  not  the  State  control  our  banks  and  other  public  institutions?  But  does  anybody 
say  she  undertakes  to  manage  any  of  them?  Does  not  the  State  control  the  gentleman 
from  Norfolk  himself,  distinguished  as  a  practicing  lawyer  (whom  I  do  not  now  see 
present),  in  the  discharge  of  his  duties  as  a  practicing  attorney?  But  does  anybody 
know  of  the  State  ever  having  interfered  with  him  in  the  management  of  his  business 
or  in  the  presentation  of  his  cases  in  court  or  elsev/here?  Is  there  not  a  v/orld-wid© 
difference  between  the  control  which  the  State  should  exert,  and  must  exert,  over  the 
affairs  of  ail  her  citizens,  and  the  management  of  the  private  affairs  of  those  citizens? 

Mr.  Thom:  This  question  was  asked  the  chairman  of  the  committee  by  some  one; 
"I  am  trying  to  ascertain  what  is  the  object  of  the  provision  proposed  by  the  com- 
mittee." The  answer  of  the  chairman  was:  "The  commission  is  to  have  the  same 
general  duty  that  Mr.  Gulp  has,  for  instance,  Mr.  Gulp  being  the  traffic  manager  of 
the  road."    Do  you  agree  with  the  chairman  of  the  committee  when  he  says  that? 

Mr.  Kendall:  Mr.  Ghairman,  the  chairman  of  the  committee  was  speaking  at  that 
time  of  the  control  over  those  rates,  and  not  the  management  of  them. 

I  do  not  see  why  this  commission  should  not  have  the  control  over  rates,  wherever 
it  finds  it  necessary  to  interfere  for  their  control,  as  much  as  the  president  of  the 
road.  I  maintain  that  the  president  is  only  permitted,  or  the  road  itself  is  only  per- 
mitted, to  fix  these  rates  by  reason  of  a  concession  from  the  State,  and  upon  the  con- 
dition that  they  shall  be  reasonable,  and  as  it  is  his  duty  to  see  that  they  are  reasonable, 
it  is  likewise  the  duty  of  the  State  to  see  that  they  are  reasonable,  and  as  he  should  so 
control  them  as  to  make  them  reasonable,  the  State  should  so  control  him  as  to  make 
them  reasonable. 

Mr.  Thom:  Then,  do  I  understand  my  friend  as  agreeing  with  the  chairman  of 
the  committee  that  the  commission  is  to  have  the  same  power  as  the  traffic  manager 
of  the  road? 

Mr.  Kendall:  Yes,  sir;  to  that  extent  and  with  that  meaning  and  with  that  restric- 
tion, I  do  mean  to  say  it,  and  do  agree  with  him.  But  if  it  is  meant  to  ask  me  if 
I  believe  the  State  should  enter,  or  under  this  amendment  would  enter,  into  the  man- 
agement of  rates  and  interfere  in  all  matters  of  rates,  I  tell  you  in  all  candor,  I  have 
no  such  thing  in  contemplation.  I  never  supposed  for  an  instant  that  this  commission 
will  undertake  to  fix  every  rate  that  is  to  be  charged  In  Virginia  by  any  railroad. 

Mr.  Brooke:    Is  it  not  made  the  duty  of  the  commission  to  do  it? 

Mr.  Kendall:  I  do  not  think  it  is  made  the  duty  of  the  commission  to  fix  every 
rate  in  Virginia.  And  if  they  undertake  to  do  It,  I  presume  they  will  just  simply 
adopt  the  rates  fixed  by  the  roads  of  Virginia,  until  they  have  reason  to  believe  there 
is  some  case  where  those  rates  should  be  changed.  It  would  be  entering  upon  a  great 
and  vast  and  useless  labor  for  that  commission  to  look  into  all  the  cases  of  rates  in 
the  State  where  no  complaint  is  made.  But  if  there  is  such  a  construction  to  be  put 
upon  the  article,  they  would  at  most,  simply  adopt  the  rates  of  the  whole  railroad  sys- 
tem of  the  State,  until,  as  they  have  a  right  under  the  article  to  do,  they  change  those 
rates  and  see  that  they  are  reasonable  and  proper.  Will  that  offend  themi?  Why,  my 
friend,  I  appeal  to  you  in  the  language  of  the  Supreme  Gourt,  which  I  just  read  to  you. 
Will  you  suppose  it  is  the  policy  of  the  State  or  the  policy  of  this  Gonvention  or  the 
policy  of  that  commission  to  make  war  upon  the  railroads?  Have  we  any  enmity  to 
those  roads?  It  may  be  they  have  often  done  what  the  gentleman  from  Fauquier  so 
lamented  they  have  done.    They  have  gone  outside  of  their  right  and  privilege  to  enter 


2226  DEBATES  OF  THE  CONSTITUTIOx\"AL  CONVENTION  OF  VIRGINIA. 

and  to  meddle  with\  the  public  duties  of  the  citizens  of  the  government  in  politics — a 
matter  which  I  propose  to  mention  later— but  I  do  not  believe  for  an  instant  that  that 
commission,  or  the  people,  or  anybody  else,  would  wish  to  visit  vengeance  upon  them, 
though  perhaps  the  fact  of  their  useless  meddling  with  politics  will  be  prevented  by  the 
fear  that  the  hand  of  the  government  might  be  laid  upon  them  will,  sir,  in  my  opinion, 
go  further  to  keep  them  from  meddling  with  politics  than  it  will  induce  them  to  enter 
it,  as  the  gentleman  seems  to  think. 

I  do  not  mean  any  improper  or  invidious  comparison,  but  they  are  very  mucti 
like  another  interest  that  troubles  us,  the  matter  of  our  colored  friends.  They  are 
very  manageable  when  you  have  them  down  and  in  proper  control,  and  they  are  very 
uppish  and  hard  to  manage  when  they  have  you  in  control. 

This  case  should  not  be  argued  upon  any  such  presumption  as  that  the  people  of 
the  State,  or  that  this  commission,  will  undertake  to  make  war  upon  this  great  interest, 
involving  perhaps  a  third  of  the  values  of  the  State.  I  cannot  believe  that  such  a 
thing  would  be  done  and  I  think  it  is  much  fairer  to  take  the  view  which  the  Supreme 
Court  of  the  United  States  has  taken  in  the  case  which  I  have  read  you,  than  to  sup- 
pose that  we  should  wish  to  cut  our  own  throats,  and  to  destroy  our  own  homes,  by 
any  such  absurd,  ridiculous  and  nonsensical  procedure. 

The  gentleman  from  Fauquier  told  us  on  yesterday  that  under  this  power  of  con- 
trol, if  this  commission  should  require  a  road  to  build  a  branch  road,  as  I  caught  him, 
twenty  of  fifty  miles  long,  to  the  mineral  lands  of  the  gentleman  from  Russell  (Mr. 
Stuart)  it  would  be  the  duty  of  the  road  to  do  it.  I  cannot  conceive  that  the  gentle- 
man from  Fauquier  could  give  his  sanction  to  any  such  legal  proposition  as  that.  It 
seemed  to  me  he  was  but  stretching  his  imagination  and  stretching  the  word  "con- 
trol" along  with  it,  to  cover  a  multitude  of  sins  wlhich  nobody  ever  conceived  it  had 
except  himself.  Why,  sirs,  is  not  the  charter  of  a  road  a  contract  betv/een  the  State 
and  the  road?  Does  not  every  layman,  certainly  every  lawyer,  know  that  the  State 
cannot  violate  that  contract  or  impose  upon  the  road  additional  burdens  not  embraced 
and  contemplated  within  that  contract?  Would  anybody  undertake  to  argue  that  the 
State  would  attempt  so  absurd  and  ridiculous  a  thing,  to  have  the  heavy  arm  of  the 
Supreme  Court  of  the  United  States  at  once  laid  upon  it,  to  expose  its  weakness  and 
foolishness? 

Mr.  Hunton:  I  think  my  friend  is  inaccurate  in  stating  that  I  argued  that  that 
came  under  the  power  to  control.  I  did  argue  that  it  came  under  this  provision  of  the 
article:  "And  shall  require  them  to  establish  and  maintain  all  such  public  service 
facilities  and  conveniences  as  the  said  commission  may,  within  the  limitations,"  and 
so  on.    I  do  not  think  I  said  branches  of  fifty  miles,  either. 

Mr.  Kendall:    Did  you  say  twenty  miles? 

Mr.  Hunton:  I  think  I  said  twenty  miles,  yes,  sir.  We  all  know  that  under  a 
charter  a  railroad  has  the  right  to  build  branches  of  certain  lengths,  without  special 
legislation.  Now,  when  you  give  to  this  commission  the  power  to  require  what  public 
service  facilities  and  conveniences  shall  be  required  of  these  roads,  I  say  it  is  a  matter 
that  may  be  of  very  grave  doubt  as  to  whether  this  commission  could  not  compel  such 
a  branch  as  that  to  be  built  under  the  language  of  this  article. 

Mr.  Kendall:  Mr.  Chairman,  the  right  to  build  these  branch  roads  is  not  a  duty 
to  build  them,  in  the  eye  of  the  law,  in  the  eye  of  the  charter,  or  under  any  provision 
of  this  article. 

Mr.  Hunton:    But  we  are  making  new  duties  and  new  laws. 

Mr.  Kendall:  We  are  not  imposing  any  duties  or  laws  of  that  kind.  We  are 
imposing  duties  and  laws  as  to  the  service  which  they  have  already  undertaken,  and 
nothing  else;  and  we  cannot  impose  any  other  duties  upon  them.  They  have  certain 
public  relations  which  they  have  already  assumed.  Those  relations  are  the  relations 
in  Wlhich  we  are  entitled  to  deal  with  them,  and  none  other,  and  neither  this  Conven- 
tion, the  General  Assembly,  nor  the  commission,  can  impose  upon  them  other  duties 
than  those  which  they  have  contracted  for  in  their  charter,  by  implication  or  otherwise. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  222'7 

That  is  the  great  difference  between  the  gentleman  and  myself.  I  am  contending 
that  they  owe  public  duties  which  they  have  contracted  to  discharge,  and  that  the  duty 
of  the  State  is  to  see  that  they  discharge  those  contractual  duties,  and  none  other. 
He  is  undertaking  to  argue  here  that  we  are  attempting  to  place  in  this  Constitution 
new  articles  of  contract  with  these  companies,  which  they  never  made  or  contemplated, 
and  which  we  cannot  impose  upon  them,  and  I  am  unwilling  to  believe  that  any 
lawyer  familiar  with  any  of  the  decisions  upon  the  question,  from  the  Dartmouth  case 
down,  will  for  an  instant  believe  that  this  Convention  has  any  such  power  or  can  dele- 
gate it  to  anj^body  else.  I  say  it  but  illustrates  the  stress  and  extent  to  which  these 
gentlemen  are  driven  here  in  defence  of  a  weak  measure,  and  in  objection  to  this  just 
and  reasonable  measure,  when  they  set  up  such  excuses  as  this,  and  array  such  imagi- 
nary dangers,  which  are  not  in  the  contemplation  of  any  reasonable  man,  lawyer  or 
layman. 

Mr.  TTnom:  I  think  everybody  will  quite  agree  that  it  is  the  duty  of  the  State  to 
see  that  the  public  corporations  perform  their  public  duties.  As  I  construe  your  article 
it  does  not  do  that,  but  undertakes  to  perform  public  duties  for  them,  to  take  the  con- 
trol of  tiheir  property  out  of  their  hands  and  perform  their  public  duties  for  them,  and 
I  would  like  to  know  what  justification  there  is  for  the  State  undertaking  itself  to 
perform  the  public  duties  instead  of  requiring  the  companies  themselves  to  do  it. 

Mr,  Kendall:  Mr.  Chairman,  I  deny  that  the  article  is  subject  to  any  such  con- 
struction. This  article  does  not  undertake  to  take  from  these  roads  the  m^anagement 
of  their  property  in  any  sense  of  the  v>^ord.  It  does  not  undertake  to  take  from  them 
the  control  of  any  private  interest  they  have.  I  undertake  to  say,  as  I  said  before, 
that,  although  the  law  controls  the  gentleman  in  the  practice  of  his  profession,  it 
does  not  take  the  right  of  that  practice  from  him  nor  interfere  in  the  management 
of  it.   .It  has  a  right  to  prescribe  the  rules  under  which  he  shall  contract  for  his  fee — 

Mr.  Thom:    But  if  you  appoint  somebody  to  say  how  much  I  shall  charge — 

Mr.  Kendall:  Oh,  sir;  that  is  not  a  publiv  duty  which  you  are  exercising.  That 
is  a  private  right  which  you  have.  I  say  that  Vv^herever  you  come,  in  the  dicharge  of 
your  duty  as  a  practitioner  in  any  public  relation,  there  the  State  undertakes  to  con- 
trol you. 

Mr.  O'Flaherty:  I  want  to  know  whether  this  commission  would  have  power  to 
require  a  railroad  company  to  build  a  switch  for  a  manufacturing  enterprise,  over  how 
long  a  route,  and  all  that. 

Mr.  Kendall:  I  believe,  sir,  just  so  far  as  these  are  contractual  rights  on  the 
part  of  the  road,  they  cannot  be  interfered  with  or  enforced  to  do  anything  more  than 
the  contract  between  the  State  and  the  road  gives  the  State  power  to  enforce  it;  and 
I  do  not  believe  for  an  instant  that  if  it  should  be  construed  by  the  courts,  or  if  it 
should  be  the  opinion  of  the  court  that  this  was  a  violation  of  the  charter  or  a  burden 
which  was  not  contemplated  in  granting  the  charter,  the  State  would  have  power  to 
enforce  any  such  rules  or  regulations,  or  that  the  commission  would  construe  their 
powers  as  giving  them  any  such  authority. 

Mr.  O'Flaherty:    Suppose  nothing  is  said  at  all  in  the  charter  about  that? 

Mr.  Kendall:  I  say,  then,  the  charter  would  not  give  the  commission  any  such 
powers,  and  would  be  confined  exclusively  to  what  was  said  in  the  charter. 

The  gentleman  from  Norfolk  (Mr.  Brooke)  to-day,  as  I  understood  him,  stated 
that  the  complaints  which  had  been  made  by  the  Interstate  Commerce  Commission  as 
to  the  law  under  which  they  acted  were  fully  met  by  the  provisions  of  the  minority 
report,  that  report,  it  seems,  having  been  modeled,  as  they  say,  upon  the  Interstate 
Commerce  act.  Mr.  Chairman,  the  gentleman  from  Norfolk  has  read  very  differently 
from  what  I  have  the  complaints  that  have  been  made  by  the  Interstate  Commerce 
Commission  upon  that  subject.  This  provision  of  the  minority  report  but  provides 
when  complaint  is  made  by  any  individual  of  a  wrong  done  him,  that  that  individual 
may  go  into  the  courts  and  there  have  the  assistance  of  the  Commonwealth's  attorney 
of  a  county  to  prosecute  a  great  question  involving  the  vast  magnitude  of  the  whole 


2228  DEBATES  OF  TIIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

railroad  interests.  Sirs,  the  complaint  which  the  Interstate  Commerce  Commission  has 
made  is  not  and  never  has  been,  that  the  courts  did  not  have  power  to  enforce  proper 
and  reasonable  rates.  I  admit  that  that  is  the  law  of  the  "United  States  under  their 
Constitution,  and  it  would  be  the  law  in  this  State,  certainly,  unless  we  place  a  pro- 
vision in  the  Constitution  giving  them  express  power  to  fix  rates  when  they  have 
passed  upon  a  rate  as  unreasonable.  But  that  has  not  been,  and  is  not  to-day,  the  com- 
plaint of  the  Interstate  Commerce  Commission.  That  commission  has  said,  not  once, 
but  again  and  again,  "Give  us  power  to  fix  rates."  It  has  said,  not  once,  but  again 
and  again.  "We  are  the  proper  tribunal  to  settle  this  question."  It  has  said,  not 
once,  but  again  and  again,  "We  are  capable  of  passing  upon  these  great  questions  by 
reason  of  our  long  familiarity  and  dealing  with  them,  and  the  courts  are  not." 

Mr.  Brooke:  May  I  interrupt  the  gentleman  a  moment?  Does  he  deny  the  fact 
that  the  amendments  offered  to  the  Interstate  Commerce  act  during  the  last  Congress 
were  offered  to  correct  existing  defects  in  the  act? 

Mr.  Kendall:    Yes,  sir, 

Mr.  Brooke:  Does  he  deny  the  fact  that  they  were  attacked  upon  the  ground  that 
it  gave  an  arbitrary  power  to  fix  rates,  and  that  it  was  claimed  that  construction  was 
put  upon  the  amendments  for  the  purpose  of  breaking  down  the  passage  of  the  amend- 
ments, showing  that  the  very  amendments  which  were  prepared  for  the  purpose  of 
perfecting  this  Interstate  Commerce  act  did  not  pretend  to  give  them  the  right  to 
regulate  the  rates  in  an  arbitrary  and  initial  way? 

I  wish  to  ask  the  gentleman  this  further  question,  and  I  promise  not  to  interrupt 
him  any  more.  Is  it  not  true  that  these  amendments  to  which  I  refer,  that  were  offered 
to  the  Interstate  Commerce  act  at  the  last  session  of  Congress,  were  offered  at  the 
suggestion  of  the  Interstate  Commerce  Commission  for  the  purpose  of  correcting  the 
defects  in  the  act,  and  not  one  of  them  asked  to  give  arbitrary  power  to  make  rates. 

Mr.  Kendall:  Yes,  sir;  that  commission  has  stated  that  by  reason  of  some  influ- 
ences— I  believe  the  chairman  of  the  committee  read  a  part  of  the  report  on  day  before 
yesterday — that  the  commission  had  again  and  again  recommended  tlhat  power  to  fix  these 
rates  should  be  given  them,  and  that  Congress,  for  some  reason,  or  through  some  influences 
or  other,  had  refused  to  do  it,  and  that  they  came  to  the  point  of  saying,  "  If  you  are 
unwilling  to  give  us  those  powers,  then  give  us  certain  other  powers  that  are  absolutely 
necessary  for  the  discharge  of  the  duties  you  have  imposed  upon  us,  as  construed  by 
the  Supreme  Court  of  the  United  States.  I  will  see  if  I  cannot  turn  to  a  reference  of 
that  kind  here.    I  am  not  sure  tihat  I  have  it. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

On  motion  of  Mr.  Braxton  the  convention  adjourned  until  Friday,  February  7,  1902, 
at  10  o'clock  A.  M. 

FRIDAY,  February  7,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  tihe  report  of  the  Committee  on  Corporations. 
Mr.  Keezell  in  the  chair. 

Mr.  Braxton:  Mr.  Chairman,  with  the  permission  of  the  gentleman  from  North- 
ampton, who  I  believe  is  entitled  to  the  floor,  I  would  like  to  state  to  the  committee 
that,  in  view  of  certain  contentions  that  have  been  made  by  the  gentlemen  who  oppose 
the  report  of  the  majority  of  the  committee  as  to  the  meaning  of  certain  language 
contained  in  that  report,  and  as  to  the  effect  of  the  report,  those  of  the  committee  who 
signed  the  majority  report  have  concluded  that,  while  in  their  opinion  the  criticisms 
are  not  just  and  could  not  be  sustained,  yet,  to  put  the  matter  beyond  all  peradventure, 
to  make  their  meaning  perfectly  plain,  they  will  at  the  proper  time  offer  certain  verbal 
amendments  of  which  I  now  wish  to  give  notice.    In  the  first  place,  it  has  been  con- 


DEBATES  OE  THE  COIs^STITUTIO^^AL  CONVENTION  OF  VIEGINIA.  2229 

tended  that  this  commission,  in  prescribing  rates  and  rules  and  regulations,  would 
proceed  purely  in  an  ex  parte  manner,  and  make  the  rule,  regulation  or  rate  in  question 
without  giving  the  companies  to  be  affected  any  notice  until  after  the  rate,  rule  or 
regulation  shall  have  been  made,  by  which  time,  their  contention  was,  that  probably 
the  mind  and  judgment  of  the  commission  would  have  received  such  a  cast  and  pre- 
judice by  reason  of  their  having  already  made  the  rule,  that  they  could  not  give  a  fair 
consideration  to  any  objection  to  its  action  that  might  then  be  urged.  It  was  the  idea 
of  your  committee  that  there  were  certain  rules  and  regulations  of  a  general  character 
that  would  be  applicable  to  all  corporations;  that  is,  to  all  railroad  companies,  or  to 
all  telegraph  companies,  and  it  would  be  impracticable  in  making  such  rules  to  sum- 
mon every  railroad  company  and  every  telegraph  company  to  be  heard  on  it  before  the 
rule  or  regulation  be  made;  just  as  much  so  as  it  would  be  impracticable  when  the 
Legislature  enacts  a  law  to  first  summon  everybody  who  could  possibly  be  affected  by 
that  law  to  be  heard  thereon.  For  that  reason,  it  was  not  originally  specified  in  the 
report  as  to  what  class  of  cases  and  what  class  of  regulations  the  commission  should 
first  summon  the  company  on,  and  as  to  what  class  such  summons  was  unnecessary, 
believing,  as  we  did  then,  and  do  now,  that  a  certain  latitude  of  judgment  should  be 
given  to  the  commission,  especially  when  their  action  v/as  subject  to  review.  But, 
where  any  rule  or  regulation  especially  directed  to  any  one  or  two  or  more  companies 
by  name  is  made,  not  only  is  there  no  objection  that  those  companies  should  first  be 
summoned  and  heard  before  the  rule  or  regulation  is  made,  but  it  had  never  occurred 
to  the  committee  that  the  commission  would  fail  so  to  summon  them.  We  merely  did 
not  prescribe  it  in  so  many  words,  because  we  thought  it  was  such  an  obvious  precau- 
tion and  such  a  just  mode  of  precedure  that  they  would  certainly  do  it,  in  view  of  the 
fact  that  no  such  rule,  either  of  a  general  nature  of  otherwise,  could  be  enforced  against 
any  company  until  that  company  had  been  heard  against  the  rule.  But  to  put  that 
matter  beyond  all  doubt,  the  com.mittee  at  the  proper  time  will  offer  this  amendment 
to  come  in  on  page  8,  at  the  end  of  line  57,  in  Section  b: 

But  before  prescribing  any  rate,  charge  or  classification  of  traffic  for,  or  making 
any  order,  rule,  regulation  or  requiremient,  directed  against  any  one  or  more  companies 
by  name,  such  company  or  companies  shall  first  be  duty  summoned  by  the  commission 
and  afforded  reasonable  opportunity  to  be  heard  thereon.  And  no  such  rate,  charge, 
classification,  rule,  regulation  or  requirement  shall  go  into  effect  against  any  company 
or  companies  to  be  affected  thereby  until  at  least  ten  days  after  due  service  thereof 
upon  such  company  or  companies. 

So  that  there  cannot  then  be  any  question  of  the  commission  doing  the  thing  which 
the  committee  thought  they  would  inevitably  do,  even  under  the  report,  to-wit:  That 
before  they  make  any  such  rule,  regulation  or  requirement,  the  company  shall  be  sum- 
moned and  given  an  opportunity  to  be  heard,  and  that  then  at  least  ten  days  shall 
elapse  before  the  rule,  regulation  or  requirement  goes  into  effect. 

Again,  it  was  contended  that  the  word  "  control,"  as  used  in  this  section,  amounted 
to  management  and  operation  of  the  work.  Your  committee — and  when  I  speak  of  the 
committee  it  will  be  understood,  of  course,  that  I  refer  only  to  those  members  who 
signed  the  majority  report— think  that  that  construction  is  a  most  forced  construction, 
that  it  would  never  be  sustained  by  a  court,  for  reasons  which  it  is  unnecessary  for  me 
do  detain  you  with  now. 

Power  to  "  regulate  and  control  "  is  almost  a  set  form  of  expression,  used,  as  far 
as  I  know,  in  nine-tenths  of  all  legislation  on  this  subject.  I  noticed  in  the  paper  this 
morning  a  recommendation  of  the  Interstate  Commerce  Commission  that  they  be  given 
additional  power  of  "  regulation  and  control,"  and,  as  explained  most  clearly  by  the 
gentleman  from  Nortbampton  on  yesterday,  "control"  cannot,  in  that  connection,  be 
stretched  to  mean  management  or  operation,  but  is  almost  synonymous  witlli  "  regulate." 
In  some  few  cases  possibly  there  is  a  shade  of  difference.  But  in  order  to  put  that  mat- 
ter at  rest,  so  that  there  cannot  possibly  occur  the  construction  which  my  friends  on 


2230 


DEBATES  OF  THE  COXSTITUTIOIS^AL  COXYEXTIO^i"  OF  VIRGINIA. 


the  other  side  give  to  it,  we  propose,  on  page  10,  at  the  foot  of  section  c,  to  insert  this 
language: 

Observe  that  I  do  not  mean  this  as  applied  to  the  sub-section  alone,  but  to  the 
whole  of  Section  4 — 

Nothing  contained  in  this  section  shall  impair  or  abridge  the  full  and  absolute 
right  of  any  corporation,  without  interference  or  restriction,  to  manage  and  operate 
its  own  property  and  franchises,  subject  to  the  provisions  of  this  Constitution,  and 
to  such  just  and  reasonable  control,  rules,  regulations  and  requirements  as  may  be 
authorized  or  prescribed  by  any  law  passed  in  pursuance  thereof. 

Mr.  Hunton:  Will  the  gentleman  permit  me  to  suggest,  that  putting  it  in  the  middle 
of  sub-section  c  might  lay  it  open  to  the  construction  that  it  referred  only  to  that  sub- 
section?   Would  it  not  be  wiser  to  say  that  it  includes  the  whole  Section  4? 

Mr.  Braxton:  I  will  accept  that  suggestion,  and  will  be  glad  to  have  any  sugges- 
tions that  the  gentleman  may  wish  to  make  that  will  tend  to  carry  out  the  idea  more 
perfectly. 

Now,  Mr.  Chairman,  at  the  top  of  page  11,  near  the  beginning  of  line  115,  the  second 
line  from  the  top,  I  will  suggest  another  amendment.  Your  committee  did  not  give  a 
right  of  appeal,  by  force  of  the  Constitution  operating  proprio  vigore,  in  anything, 
except  orders  affecting  the  rates  and  charges  of  a  transportation  or  transmission  com- 
pany, but  thought  that  it  would  suffice  to  leave  the  General  Assembly  the  right  of  grant- 
ing appeals  in  every  other  case  that  they  chose,  because  there  was,  obviously  a  number 
of  small  cases,  so  insignificant — such  as  the  fixing  of  a  fine  of  $2.50  upon  a  corporation — 
that  nobody  v/ould  ask  or  expect  that  an  appeal  would  lie  from  that  to  the  Supreme 
Court,  and  we  thought  that  we  could  safely  leave  it  to  the  General  Assembly  to  grant 
appeals  in  all  cases  where  it  was  proper  that  an  appeal  should  be  granted.  It  w'as 
in  the  mind  of  the  committee  that  in  all  rules,  regulations  or  requirements  affecting 
the  schedules  of  its  trains,  the  making  of  additional  requirements  as  to  public  facilities 
and  conveniences,  &c.,  that  that  road  should  furnish,  the  General  Assembly,  would 
unhesitatingly  and  beyond  all  doubt  give  an  appeal  in  such  cases,  and  we  simply  said, 
and  thought  it  was  sufficient  to  say,  that  the  General  Assembly  was  given  a  free  hand 
to  grant  appeals  in  all  those  cases  in  which  they  wanted  to,  and  particularly  did  we 
think  that  our  friends  on  the  other  side,  who  have  so  strenuously  contended  all  along 
that  this  whole  matter  should  be  left  to  the  General  Assembly,  would  concede  that,  if 
the  whole  thing  could  be  safely  left  to  the  General  Assembly,  certainly  a  small 
part  of  that  thing  could  be  safely  left  to  them,  and  that  we  could  safely  trust  the  General 
Assembly  to  grant  these  appeals  wherever  it  was  nece&sary.  But  my  friends  seem  to 
think,  if  their  argument  is  an  indication,  that  although  the  General  Assembly  could  be 
trusted  with  the  whole  thing,  yet  it  is  not  safe  to  trust  them  with  part  of  it,  and  that 
the  General  Assembly  might  fail  to  grant  tihe  right  of  appeal  from  any  of  these  rules  or 
regulations  affecting  the  schedule  of  the  road,  or  requiring  additional  facilities. 

Now.  therefore,  to  put  that  matter  beyond  all  doubt,  we  propose  to  insert  words  to 
cover  that  in  the  second  line  from  the  top  of  page  11.  As  the  words  are  disconnected 
in  themselves,  I  will  read  the  language  as  it  now  stands  in  the  article,  with  the  words 
proposed  inserted,  so  that  you  can  see  the  affect:  "From  any  action  of  said  commis- 
sion prescribing" — 

Here  insert  the  word  "rates" — ■ 

"From  any  action  of  said  commission  prescribing  rates,  charges  or  classifications 
to  traffic"— 

Now  insert — 

"or  affecting  the  train  schedule  of  any  transportation  company  or  requiring  any 
additional  facilities,  conveniences  or  public  service  of  any  transportation  or  transmis- 
sion company" — ■ 

Now  the  section  goes  on — 

"an  appeal,  subject  to  such  reasonable  limitations  as  to  time,  regulations  as  to 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2231 


procedure,  and  provisions  as  to  cost,  as  may  be  prescribed  by  law  may  be  taken  by  tbe 
corporation  whose  charges,  or  classifications  of  traffic" — 
Here  insert — 

"schedules,  facilities,  or  conveniences  of  service" — 
"are  aifected" — ■ 

And  so  on,  so  that  there  can  be  no  question,  under  the  provision,  as  it  now  stands, 
that  not  only  will  the  General  Assembly  have  the  right  to  give  an  appeal,  but  the 
Constitution,  proprio  vigore,  will  give  an  appeal  in  every  case  affecting  charges  or 
schedule,  the  requiring  of  any  additional  facilities  of  the  road— in  every  such  case,  so 
that  although  the  General  Assembly  may  not  raise  its  hand,  the  appeal  will  be  by  force 
of  the  Constitution  itself? 

Mr.  Hunton:  There  is  no  use  of  having  a  protracted  fight  over  anything  that  we 
can  arrange  without  a  fight.  The  language  in  which  this  appeal  is  given  is  not  satis- 
factory to  me,  and  I  infer  from  the  statement  of  the  chairman  of  the  committee  that 
he  desires  to  make  it  so.  It  has  been  stated  to  this  body  that  the  fixing  of  rates  is  a 
legislative  and  not  a  judicial  duty.  The  language  giving  the  appeal  does  not  carry  with 
sufiicient  clearness,  at  least  to  satisfy  my  mind,  the  idea  that  by  that  appeal  the  power 
is  given  to  the  corporation,  or  to  the  party  complaining,  to  complain  as  to  the  rate 
itself — the  fixing  of  which  is  a  legislative  duty.  As  I  understand  the  chairman,  it  is 
the  purpose  to  give  the  Court  of  Appeals  the  right  to  revise  the  fixing  of  rates  and  the 
rates  themselves,  and  not  merely  the  regularity  with  which  they  have  proceeded. 
I  desire  to  call  his  attention  to  that  point  so  that  he  may  direct  his  mind  to  it  and  make 
the  language  of  the  article  clearer,  if  that  is  the  purpose  of  the  majority  of  the  com- 
mittee. 

Mr.  Braxton:  That  is  certainly  the  purpose  of  the  majority  of  the  committee.  As 
I  understand  the  law,  as  it  has  been  laid  down  by  the  Supreme  Court  of  the  United 
States,  the  question  of  fixing  rates  is  a  legislative  and  not  a  judicial  act.  The  only 
judicial  act,  the  only  judicial  question,  connected  with  it  is  as  to  whether  the  rates 
are  confiscatory  or  not,  whether  or  not  they  violate  the  Fourteenth  Amendment.  It 
is  our  purpose  and  desire  not  to  stop  at  that  point,  not  merely  to  say  that  the  Court  of 
Appeals  is  restricted  to  saying  whether  those  rates  are  confiscatory,  but  to  go  further 
and  say  whether  they  are  just  and  reasonable,  with  merely  this  presumption,  that  the 
rates  fixed  by  the  commission  shall  be  prima  facie,  presumed  to  be  just  and  reasonable 
and  not  otherwise.  If  this  language  does  not  clearly  express  that  idea,  I  will  be  more 
than  glad  to  see  my  friend  privately,  when  we  can  talk  over  this  matter  more  satis- 
factorily, to  see  if  we  cannot  agree  upon  language  which  will  put  its  meaning  beyond 
peradventure.  In  this  connection  I  will  call  his  attention  to  a  further  provision  which, 
it  seems  to  me,  puts  this  matter  beyond  doubt  by  providing  that  the  appellate  court, 
when  it  fails  to  sustain  a  rate  fixed  hy  the  commission,  shall  itself  substitute  a  new  rate 
for  the  rejected  one. 

We  think,  therefore,  there  can  be  no  question  that  it  is  not  limited  to  a  mere 
denunciation  of  the  rate,  on  the  ground  that  it  is  confiscatory,  because  it  has  been 
expressly  provided  that  when  they  denounce  one  rate  they  must  substitute  another  rate 
for  it,  it  being  the  idea  of  the  commission  that  while  the  court  is  not  capable  of  fixing 
the  rate  as  an  original  proposition,  yet  when  it  sits  in  review  upon  the  action  of  the 
commission,  with  the  report  of  the  commission,  like  the  report  of  a  special  master  in 
chancery,  before  it,  and  with  all  the  facts  before  it,  it  is  competent  to  substitute  a  new 
rate  for  the  old  one.  We  think  it  is  reasonable  to  say  that  before  any  man  can  bring 
his  mind  to  say  that  a  certain  rate  is  unreasonable  he  must  have  in  his  mind  some 
other  rate  that  in  his  opinion  is  reasonable,  and  all  he  will  have  to  do  is  to  put  down 
the  rate  which  he  thinks  is  reasonable.  But,  after  looking  at  it  in  that  light,  if  my 
friend  still  thinks  the  language  is  ambiguous,  I  will  be  more  than  glad  to  confer  with 
him  and,  if  possible,  remove  the  ambiguity.  We  have  no  desire  to  do  any  of  these  wild 
things  that  have  been  artributed  to  us.    No  man  will  be  more  ready  than  I,  and  I  think 


2232  DEBATES  OF  THE  COJvTSTITUTIOAtAL  CONVENTION  OE  VIRGINIA. 

every  member  of  this  committee  who  signed  the  majority  report,  to  make  any  mere 
verbal  change  in  order  to  correct  what  may  seem  to  be  an  ambiguity,  or  what  is  sus- 
ceptible of  sustaining  any  such  construction  as  has  been  put  upon  it  here. 

With  the  amendments  of  which  I  have  given  notice  the  effect  will  be  that,  in  every 
ease,  the  corporation  to  be  affected  will  have  a  hearing  before  the  rate  is  fixed  and  before 
the  regulation  is  made,  and,  afterwards,  if  it  is  brought  up  for  a  violation  of  the  rate, 
it  will  have  a  further  hearing  as  to  whether  it  did  violate  it  and  as  to  whether  it  was 
justified  in  the  violation  of  it.  It  is  provided,  further,  that  in  everything  affecting 
rates,  schedules,  regulations  and  requirements  of  these  railroad  companies,  there  shall 
be,  whether  the  Legislature  says  so  or  not,  an  appeal  to  the  Court  of  Appeals,  and^ 
finally,  the  paramount  and  supreme  power  of  the  Legislature  over  every  sort,  kind  and 
description  of  regulation,  except  the  one  fixing  rates,  charges  and  classification  of  traffic, 
is  left  where  it  is  to-day,  and  the  commission  is  put  absolutely  under  the  domination 
and  control  of  the  Legislature  so  far  as  the  making  of  rules  and  regulations  affecting 
the  railroad  is  concerned,  except  upon  the  question  of  fixing  rates,  charges;  and  even 
from  that,  as  from  everything  else  they  do,  there  is  an  appeal  to  the  Court  of  Appeals 
so  that  you  have  the  Court  of  Appeals  and  the  Legislature,  both,  standing  back  of  this 
commission  to  correct  any  evil  it  can  do,  either  intentionally  or  unintentionally. 

I  do  not  wish  to  restrict  myself  to  the  exact  language  of  the  amendments  of  which 
I  have  given  notice  this  morning,  but  merely  wish,  in  this  notice,  to  express  the 
general  ideas  your  committee  has  on  the  subject.  The  language  used  will  be  revised 
and  considered  more  critically  by  us  before  the  exact  final  form  in  which  we  will  offer 
the  amendments,  for  the  consideration  of  the  Committee  of  the  Whole,  is  determined 
upon. 

Mr.  William  A.  Anderson:  Would  the  amendment  suggested  by  the  committee  to 
sub-section  B  of  Section  4,  at  the  top  of  page  11,  unquestionably  give  the  right  of  appeal 
from  an  order  or  a  regulation  adopted  by  this  commission  in  reference  to  interchange 
of  freights  between  different  companies  or  train  connections  between  different  com- 
panies? 

Mr.  Braxton:  I  should  think  so.  I  will  read,  in  that  connection,  the  language  of 
the  section:  "From  any  action  of  said  commission  prescribing  rates,  charges  or  classi- 
fication of  traffic,  or  affecting  the  train  schedules  of  any  transportation  company,  or 
requiring  any  additional  facilities,  conveniences  or  public  service  of  any  transportation 
or  transmission  companies" — there  can  be  an  appeal.  It  would  seem  to  me  that  would 
cover  everything  along  the  line  that  you  can  mention.  If  you  think  it  will  not,  we  may 
change  the  language  to  meet  that  view.  In  addition  to  that,  I  call  the  attention  of  the 
gentleman  to  the  fact  that  if,  by  any  possibility,  there  is  anything  they  ought  to  have  an 
appeal  from,  which  we  have  not  mentioned,  he  will  find  on  page  11,  line  126,  a  provision 
that  "the  General  Assembly  may  also,  by  general  laws,  provide  for  appeal  from  any 
other  action  of  the  said  commission  by  the  Commonwealth  or  by  any  person  interested." 
It  does  not  make  any  difference  what  it  is.  We  give  specific  appeals  in  certain  impor- 
tant cases.  If  it  turns  out  that  there  are  others  which  ought  to  have  been  mentioned, 
the  Legislature  is  given  the  right  to  grant  the  appeal  in  other  cases. 

Mr.  Robertson:  I  understand  that  the  position  you  take  is  that  the  fixing  of  rates 
is  not  a  judicial  act.  You  claim  that  the  Supreme  Court  has  held  that  as  a  matter  of 
fact  it  is  true  that  the  fixing  of  rates  is,  in  itself,  a  legislative  and  not  a  judicial  act. 
I  would  like  to  ask  you  how  it  is  that  an  appeal  to  the  Court  of  Appeals  will  do  anyone 
any  good,  when  that  court  has  to  act  judicially  and  cannot  act  in  the  legislative 
capacity?  I  do  not  see  how  the  court  could  pass  on  the  question  at  all.  The  Court  of 
Appeals  is  not  a  legislative  hody. 

Mr.  R.  Walton  Moore:  If  my  friend  will  allow  me,  while  he  is  making  his  answer 
to  that  proposition,  will  he  add  this  to  the  inquiry  of  the  gentleman  from  Roanoke? 
He  fixes,  as  a  standard  for  the  Court  of  Appeals,  the  reasonableness  and  justice  of  the 
action  of  the  commission.  To  what  extent  is  that  standard  definite?  To  what  extent 
would  that  standard  enable  the  court  really  to  take  jurisdiction  a^d  administer  relief. 
It  being  conceded  that  the  right  to  fix  rates  is  a  legislative  and  not  a  judicial  act? 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTION  OF  YIRGIXIA. 


2233 


Mr.  B'raxton:  If  the  gentleman  will  turn  to  page  14,  Section  G,  lie  will  find  this 
language: 

Whenever  the  court,  upon  appeal,  shall  reverse  an  order  of  the  commission  affecting 
the  rates  of  charges,  or  the  classification  of  traffic,  of  any  transportation  or  transmis- 
sion company,  it  shall,  at  the  same  time,  substitute  for  the  reversed  order  the  order 
which,  in  its  opinion,  the  commission  should  have  entered  at  the  time  of  entering,  and 
in  lieu  of  the  order  appealed  from,  otherwise  the  reversal  order  shall  not  be  valid. 
Such  substituted  order  shall  have  the  same  force  and  effect  (and  none  other)  as  if 
it  had  been  entered  by  the  commission  at  the  same  time  the  original  order  appealed 
from  was  entered. 

Mr.  Robertson:  That  just  brings  my  mind  to  the  very  question  I  want  to  ask  you. 
How  in  the  world  can  a  judicial  body,  such  as  the  Court  of  Appeals,  do  the  thing  jou 
say  there  it  shall  do,  when  you  yourself  say  that  that  is  a  legislative  proceeding  and  not 
a  judicial  proceeding? 

Mr.  Meredith:    Can  they  not  do  it  if  the  Constitution  gives  them  the  power? 

Mr.  Robertson:  Is  it  not  an  appeal  from  a  body  that  has  legislative  powers,  as  the 
gentleman  from  Staunton  admit,  to  a  body  that  has  simply  judicial  powers,  to  a  body 
that  has  simply  judicial  powers  and  cannot  have  anything  else,  because  other  sections 
here  show  that  the  court  has  to  act  on  the  evidence  that  was  before  the  commission, 
and  not  on  any  evidence  that  comes  before  it.  It  would  be  an  impossibility  for  the 
court  to  carry  out  the  very  thing  here  that  you  say  it  must  do,  and  your  argument 
shows  it  is  an  impossibility. 

Mr.  Braxton:  Mr.  Chairman,  while  it  is  true  that  the  fixing  of  rates  is  a  legis- 
lative and  not  a  judicial  function,  there  is  no  reason  that  I  know  of  why  a  purely  and 
absolutely  legislative  function  cannot  be  conferred  by  the  Constitution  on  the  Court 
of  Appeals  or  on  any  other  tribunal.  The  Senate  of  the  United  States  is  a  part  of  the 
legislative  branch  of  the  Government,  and  yet  there  is  conferred  upon  it  judicial  powers 
to  try  impeachments,  executive  powers,  in  the  advice  and  consent  it  has  to  give  to  the 
President  in  the  appointment  of  officials,  and  so  on.  That  rule,  like  every  other  rule, 
is  subject  to  exceptions;  and,  while  it  may  be  true  that  the  Legislature  cannot  confer 
any  such  power  upon  the  court,  and  that  is  one  of  the  reasons  I  think  it  is  essential 
this  should  go  in  the  Constitution,  there  is  no  reason  why  the  Constitution  which  we 
are  now  framing  cannot  confer  this  power,  even  though  it  be  clearly  and  distinctly 
and  absolutely  a  legislative  power;  but  it  is  not  that  absolutely.  It  is  only  so  sub 
modo.  The  right  to  fix  regulations  to  regulate  their  train  schedules,  to  require  them  to 
make  proper  crossings,  is  a  legislative  power  and  not  judicial,  and  yet  the  court,  in 
theory  at  least,  exercises  that  power  to-day;  but,  sir,  the  original,  the  initiative  of 
this  thing  is  not  done  by  the  court.  It  is  done  by  the  commission,  which  is  clothed  with 
legislative  powers  for  that  purpose,  and  the  court  sits  in  review  upon  them.  It  exercises 
this  function  partly  in  a  legislative  capacity  and  partly  in  a  judicial  capacity  in 
reviewing  the  discrimination  which  is  vested  in  the  commission,  and  say  whether  that 
legislative  discrimination  which  has  been  given  to  the  commission  has  been  abused  by 

Therefore  the  difficulty  which  my  learned  friena  suggests  woujd  be  a  difficulty  that 
would  stand  in  our  way  if  we  were  acting  through  the  Legislature,  and  would  exist  if 
the  question  was  whether  the  Legislature  could  confer  even  quasi-legislative  powers 
upon  a  court,  no  longer  operates  as  a  difficulty  to  the  framers  of  a  Constitution,  who  can 
place  legislative  and  judicial  powers  where  they  choose  and  In  any  way  they  choose 

Mr.  Robertson:  I  do  not  want  to  interrupt  you,  but  I  want  to  state  a  difficulty  that 
your  argument  presents  to  me.  Perhaps  you  do  not  understand  now  what  I  am  asking. 
I  am  not  asking  what  the  Constitution  can  do.  I  am  asking  you  with  reference  to  the 
nature  of  this  duty.  I  understood  your  argument  the  other  day  to  amount  to  this: 
That  neither  the  court  nor  the  Legislature  were  the  proper  tribunals  to  fix  rates,  and 
you  made  an  able  argument,  I  will  say  to  you,  on  both  those  lines.  I  agree  with  you 
that  the  Legislature  cannot  fix  rates.    You  went  on  to  argue  that  the  court  cannot  fix 

141— Con?t.  Deb. 


223^  DEBATES  OF  THE  CO?s"STITUTIOXAL  COXVEXTION  OF  VIRGI>^'IA. 

rates,  that  that  was  the  necessity  for  this  commission.    Am  I  not  right  in  that — that  as 
a  primary  proposition  the  court  could  not  fix  the  rates? 
Mr.  Braxton:    You  are  not  accurate  in  that. 

Mr.  Robertson:  The  question  I  aslt  is  this:  How,  then,  on  an  appeal,  can  the 
court  fix  rates  and  substitute  them  in  the  place  of  other  rates  that  have  been  fixed  by 
this  commission?  They  would  have  to  do  what  you  say  they  cannot  do,  in  order  to  do 
that. 

Mr.  Braxton:  The  commission,  in  investigating  the  matter,  fixes  the  rates.  The 
commission  gets  a  large  number  of  collateral  facts  before  them  and  reviews  them,  and 
come  to  its  conclusion,  just  as  a  legislature  would  and  writes  down  the  reasons  and  the 
facts  upon  which  it  bases  its  reasons.  The  court,  in  review,  is  limited  to  those  facts, 
unless  the  railroad  wants  to  add  to  the  record  and  have  it  sent  back  to  the  court  below. 
The  sole  function  of  the  court  is  to  say  in  effect  to  the  commission:  "Acting  upon  the 
facts  which  you  say  you  had  before  you,  and  taking  them  as  facts,  we  will  decide 
whether  or  not  that  legislative  discretion  which  is  vested  in  you  for  fixing  a  rate  has 
been  abused  or  not;  whether  the  rates  you  have  fixed  in  view  of  the  facts  upon  which 
you  said  you  based  your  judgment,  are  just  and  reasonable,  and  if  they  are  not,  what 
are  the  just  and  reasonable  ones?  "  The  court  is  limitde  in  its  action  by  what  was 
done  first  by  the  commission.  Such  proceedings,  or  review,  are  of  a  judicial  character, 
with  two  parties  to  the  controversy — the  railroad,  by  its  attorney,  and  the  Common- 
wealth, by  the  Attorney-general.  The  question  has  then  lost  almost  entirely  the  legis- 
lative aspect  which  it  bore  in  its  earlier  and  initiative  stages  before  the  commission. 

I  will  give  you  an  illustration.  In  the  enforcement  of  the  police  powers  of  a  State, 
in  prescribing  police  regulations,  that  is  a  legislative  function,  pure  and  simple.  No 
court  can  prescribe  police  regulations;  but  it  is  a  limitation  upon  the  power  to  prescribe 
police  regulations  that  they  should  be  reasonable,  and  while  the  court  has  not  the  func- 
tion of  originally  prescribing  such  regulations,  it  can  review  them  after  they  have 
been  prescribed  by  the  Legislature,  in  the  performance  of  a  legislative  function,  and  say, 
in  the  performance  of  a  judicial  function,  whether  such  regulations  are  just  and  reason- 
able or  not. 

You  can  never  find  two  cases  that  are  exactly  analagous,  but  I  think  that  is  suffi- 
ciently analagous  to  illustrate  what  I  mean:  That  while  the  court  cannot  in  this  case 
originally  fix  a  rate,  yet  when  the  commission  which  has  acted  on  it  does  fix  the  rate, 
the  court  can  review  it  and  say  whether,  by  exercising  that  power  the  commission  has 
been  just  and  reasonable  or  not.  The  United  States  Federal  Court  to-day  does  not  con- 
demn a  rate  until  it  has  first  been  condemned  by  the  railroad  commission,  but  having 
been  done  that  way,  the  court  reviews  that  action. 

Now,  if  my  friend  will  pardon  me,  as  I  am  taking  up  the  time  of  the  gentleman 
from  Northampton  (Mr.  Kendall),  and  as  I  have  consumed  very  much  more  of  his 
time  than  I  dream-ed  I  would  consume,  I  will  be  glad  to  yield  the  floor  to  him  and  thank 
him  for  his  courtesy. 

Mr.  Kendall:  Mr.  Chairman  and  gentlemen  of  the  committee,  when  I  closed  yester- 
day I  was  attempting  to  reply  to  the  contention  of  the  gentleman  from  Norfolk  (Mr. 
Brooke)  that  it  was  not  the  purpose,  as  I  understood  him,  of  the  Interstate  Commerce 
Commissioners  to  ask  for  powers  to  fix  rates.  I  took  issue  with  him  upon  that  point 
and  was  about  to  quote  the  authority  when  the  committee  rose.  I  did  not  contend,  in 
anything  I  said,  that  that  commission  had  ever  asked  for  powers  to  fix  rates  exactly  as 
are  provided  by  the  majority  report  now  before  you  for  consideration.  The  difference 
is  that  they  did  contend  and  ask  for  power  to  fix  rates  when  complaint  had  been  made 
before  them  of  an  abuse  by  the  roads  in  fixing  the  rates,  whereas  we  have  given  to  our 
commission  power  to  fix  rates  whenever  they  believe  that  it  is  necessary  so  to  do,  either 
upon  complaint  or  upon  their  own  initiative. 

I  wish  to  read  a  short  extract  from  the  report  of  the  Interstate  Commerce  Commis- 
sion for  the  year  1895  and  the  act  which  they  then  recommended  should  be  passed  by 
Congress,  to  show  that  my  contention  was  correct.    I  further  expressly  stated  that  when 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA. 


2235 


that  conimission  found  that  Congress  for  somie  reason  or  other,  malign  or  otherwise, 
was  unwilling  to  grant  them  that  power  wholly  as  they  had  asked  it,  they  then  asked 
at  least  that  power  should  be  given  them  which  would  enable  them  to  enforce  the  duties 
which  Congress  had  imposed  upon  them  as  construed  by  the  Supreme  Court  of  the 
United  States. 

After  reviewing  somewhat  the  history  of  the  Interstate  Commerce  act,  the  Com- 
mission says: 

From  such  considerations  as  there  is  seen  the  manifest  duty  of  Congress  to  invest 
this  commission,  or  such  other  agency  as  may  be  wisely  employed  for  the  purpose,  with 
adequate  authority  to  correct  ascertained  excesses  in  railroad  charges,  and  to  enforce 
with  respect  thereto  the  observance  of  relative  justice.  The  power  so  conferred  should 
be  proportioned  to  the  requirements  of  effective  administration,  so  that  through  its 
instrumentality  the  obligations  of  the  government  in  regard  to  public  transportation 
may  be  properly  discharged.  Congress  has  not  undertaken — and  probably  will  not  under- 
take— to  say  by  specitic  enactment  what  rates  shall  be  charged  on  any  line  or  for  any 
article.  The  tariffs  in  current  use  are  for  the  most  part  made  up  by  the  carriers  them- 
selves. They  are  filed  and  published  as  the  law  requires  and  are  the  standard  of 
compensation — binding  both  on  the  railroads  and  on  the  public — until  they  are  ques- 
tioned or  assailed.  Presum.ably  if  they  are  observed  nobody  is  injured  and  nobody  at 
fault.  But  if  complaint  is  made  that  a  given  rate  is  too  high,  or  is  relatively  unjust, 
and  that  specific  charge  is  denied  by  the  carrier  complained  of,  how  is  the  controversy 
to  be  decided?  Shall  it  be  relegated  to  the  courts,  whose  methods  and  rules  are 
unsuited  to  such  an  inquiry,  or  shall  the  special  tribunal  created  by  Congress,  and 
exercising  its  power,  be  clothed  with  authority  to  determine  in  the  first  instance,  and 
with  the  finality  of  a  nisi  prius  court,  the  merits  of  the  contention? 

And  then,  after  reviewing  at  length  the  whole  history  of  this  trouble,  they  formu- 
late an  article,  and  ask  that  Congress  shall  enact  it  in  these  words: 

That  it  shall  be  the  duty  of  the  commission,  if  there  shall  appear  to  be  reasonable 
ground  therefor  in  any  case— 

i 

That  would  almost  look  as  if  they  comtemplated  that  the  commission  should  act 
upon  its  own  responsibility. 

If  there  shall  appear  to  be  reasonable  ground  therefor  in  any  case,  to  investigate 
all  complaints  relating  to  the  rates,  fares,  charges,  facilities  or  practices  of  any  com- 
mon carrier  or  carriers  subject  to  the  provision  of  this  act;  and  whenever  the  com- 
mission, after  due  notice  to  such  carrier  or  carriers  and  reasonable  opportunity  for 
them  to  be  heard,  shall  find  that  any  such  rates,  fares,  charges,  facilities  or  practices 
are  in  any  respect  excessive  or  unreasonable,  or  result  in  any  unjust  discrimination 
as  between  individuals,  localities  or  articles  or  traffic,  or  are  otherwise  in  contravention 
of  any  of  the  provisions  of  this  act,  the  commission  shall  so  report,  and  shall  there- 
upon issue  an  order  requiring  any  such  rates,  fares,  charges,  facilities  or  practices 
to  be  changed,  modified  or  corrected  as  in  such  order  specified,  and  it  shall  be  the 
duty  of  the  carrier  or  carriers  affected  thereby  to  comply  with  such  order  within  such 
reasonable  time  as  shall  be  fixed  by  the  commission, 

I  do  not  think  anybody  can  contend,  after  hearing  that,  that  the  Interstate  Com- 
merce Commission  did  not  ask  for  power  to  fix  rates.  That  was  the  burden  of  their 
song  for  years  and  years;  and,  more  than  that,  that  was  the  course  of  their  procedure 
when  as  they  state  in  one  of  their  reports  that  for  ten  years  they  have  fixed  rates,  and 
not  until  it  was  decided  by  the  Supreme  Court  of  the  United  States  in  a  case,  I  think, 
reported  in  167  or  1G9  U.  S.,  that  that  power  was  not  conferred  upon  the  commission, 
did  tOiey  cease  to  do  so. 

Mr.  Chairman,  the  question  was  not  before  that  commission  thereafter;  it  has  not 
been  before  the  courts  of  the  United  States  whether  it  was  advisable  or  not  to  give  that 
commission  power  to  fix  rates.  The  Supreme  Court  of  the  United  States  has  not  in  any 
of  the  decisions  which  it  has  delivered,  said  that  that  commission  should  not  have  such 
power.    It  has  simply  said  that  the  act,  as  it  had  been  passed  by  Congress,  had  not 


2236 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


conferred  such  powers.  It  was  for  Congress  to  say  whether  they  should  be  conferred 
and  not  for  the  Supreme  Court;  hut  a  great  and  far  different  reason  might  be  given 
why  that  commission  should  not  have  such  powers,  when  the  identical  powers  should  be 
conferred  upon  this  State  commission. 

The  Interstate  Commerce  Commission  has  to  deal  with  questions  not  confined  to 
one  State.  It  has  the  territory  of  forty-five  States,  thousands  of  miles  in  extent,  with 
a  traffic  not  only  interstate,  but  also  involving,  as  was  decided  by  the  Supreniie  Court 
of  the  United  States,  our  trade  with  all  the  foreign  nations;  and  perhaps  it  might  well 
be  argued,  and  for  my  own  part  I  am  ready  to  concede,  that  no  three  or  five  men  would 
ever  be  able  to  pass  upon  the  multitude  of  questions  which  might  be  brought  before 
them  in  the  vast  territory  of  the  United  States,  with  its  infinite  and  intricate  commerce; 
but  here  in  our  limited  territory,  with  but  a  few  trunk  lines  passing  through  our  State 
from  one  end  to  the  other,  with  but  a  few  branch  lines  running  from  those  trunk  lines, 
the  question  is  but  infinitesimal  as  compared  with  those  which  must  arise  before  the 
Interstate  Commerce  Commission. 

Sirs,  when  this  commission,  after  long  experience,  after  they  have  been  engaged 
in  this  duty  for  years  and  years,  with  that  great,  eminent  lawyer,  Judge  Cooley,  in  their 
number,  when  they  have  considered  this  question  for  years  and  years  and  knew,  there- 
fore, what  they  were  capable  of  doing,  come  and  ask  Congress  again  and  again,  year 
after  year,  to  give  them  power  to  do  this  thing  of  fixing  rates  upon  complaint,  from 
one  end  of  this  Union  to  the  other,  how  can  it  be  said  that  no  three  men  are  capable 
of  performing  a  like  duty  here  in  our  little  state  of  Virginia? 

I  hope  you  gentlemen  noted  one  passage  that  fell  from  my  lips  as  I  read  that 
explanation  from  the  Interstate  Commerce  Commission.  I  will  again  read  it  to  you, 
for  fear  you  may  have  overlooked  it: 

Shall  it  be  relegated  to  the  courts,  whose  methods  and  rules  are  unsuited  to  such 
an  inquiry,  or  shall  the  special  tribunal  created  by  Congress,  and  exercising  its  power, 
be  clothed  with  the  authority  to  determine  in  the  first  instance,  and  with  the  finality 
of  a  nisi  prius  court,  the  merits  of  the  contention? 

Who  is  it  says  that  commission  is  the  most  capable  of  passing  upon  this  question? 
Is  it  a  court  whose  hands  are  tied  and  whose  minds  are  trained  in  great  theoretical 
question  that  are  best  capable  of  passing  upon  these  infinite  matters  of  detail,  or  is 
it  a  commission  selected  because  of  their  special  fitness  for  tha.t  particular  business,  and 
their  long  experience  in  it,  that  should  deal  directly  with  this  question? 

They  have  again  and  again  pleaded  to  Congress — "  Give  us  at  least  the  power,  when 
we  have  made  a  report,  to  say  tihat  report  shall  have  the  effect  of  the  report  of  a  com- 
missioner in  chancery  in  fixing  the  facts;"  and  you  will  find  in  one  of  their  reports  that 
they  quote  a  decision  of  one  of  the  Federal  courts  to  show  what  are  those  powers,  and 
what  is  the  extent  and  authority  of  the  report  of  a  commissioner  in  chancery;  and  in 
what  I  read  you  they  say,  "  at  least  let  this  recommendation  we  make  have  the  finality 
of  the  decision  of  a  nisi  prius  court." 

Gentlemen  contend  they  have  modeled  their  minority  report  upon  the  Interstate 
Commerce  act.  Gentlemen  of  the  committee,  they  have  modeled  it  only  to  some  extent 
upon  that  enactment,  as  emasculated  by  the  decisions  of  the  Supreme  Court  of  the 
United  States,  when  it  has  been  shorn  of  its  powers— powers  which  it  had  exercised  for 
ten  years.  They  have  imitated  it  and  followed  it  like  the  women  at  the  crucifixion, 
afar  off  and  weeping.  They  have  not,  as  a  matter  of  fact,  undertaken  even  to  give  the 
same  powers  in  their  article  that  have  been  given  by  the  Federal  States  to  the  Inter- 
state Commerce  Commiission,  even  as  construed  by  the  Supreme  Court  of  the  United 
States,  and  I  will  show  that  later  as  I  come  to  it  more  directly  in  the  order  of  the  line 
of  my  argument. 

When  the  Supreme  Court  had  taken  from  the  commission,  by  its  decision,  all  the 
powers  which  Congress  had  intended  to  give  it,  as  the  commission  have  again  and 
again  argued — whether  it  v/ere  indeed  written  in  the  words  of  the  act  or  not,  and  I  do 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2237 

not  mean  here  to  assert  that  the  construction  which  the  commission  has  given  to  that 
act  should  be  accepted  in  preference  to  that  given  by  the  Supreme  Court — but  I  assert 
that  as  this  commission  does  say,  that  construing  that  act  in  the  light  of  the  demands 
of  the  day  in  which  it  was  passed,  in  the  discussions  upon  it  in  Congress  when  it  was 
passed,  it  was  the  purpose  to  give  them  all  the  powers  of  fixing  rates,  and  this  commis- 
sion, reviewing  the  inefficiency  of  the  act  after  those  powers  had  been  taken  from  it, 
in  their  report  in  1899,  breathe  a  wail  of  despair  in  their  appeal  to  Congress  to  reinvest 
them  with  these  powers  with  v/hich  the  people  had  intended  to  invest  them.  Oh  the 
first  page  of  that  report  they  say: 

Many  persons  do  not  understand  the  precise  nature  of  the  amendments  required 
for  enforcing  the  substantive  provisions  of  the  act,  while  others  have  apparently  reached 
the  belief  that  no  scheme  of  regulation  short  of  government  ownership  and  operation 
can  be  made  effective. 

So  far  had  our  people  been  disappointed,  says  the  commission,  that  they  are  begin- 
ning to  believe  that  the  time  is  near  at  hand  when,  if  we  are  to  control  this  great 
agency  as  it  vv^as  intended  it  should  be  controlled,  the  government  itself  should  take  the 
ownership  and  management  of  th'ese  roads  into  its  hands  and  exercise  it  for  the  people 
in  tile  spirit  in  which  the  charters  were  granted  to  them. 

Nevertheless — (continues  the  commission) — it  is  perhaps  safe  to  say  that  nine- 
tenths  of  the  people  do  know  that  any  railroad  company  can  charge  for  its  service 
whatever  it  pleases  and  as  much  as  it  pleases,  without  any  real  power  in  this  commis- 
sion, or  any  other  tribunal  or  court,  to  limit  the  amount  of  such  charge  for  the  future 
when  complaint  is  made  by  an  aggrieved  shipper,  and  that  they  are  substantially  of 
one  mind  in  desiring  that  this  and  other  defects  in  the  statue  be  promptly  remedied. 
It  is  also  true  that  shippers  generally  have  been  practically  unanimous  in  favor  of  a 
single  classification  of  freights,  one  that  will  be  uniform  for  all  roads  and  all  sections 
of  the  country,  and  reasonably  stable  when  established. 

I  understand  the  gentleman  from  Fauquier  to  say  that  the  commission  in  its  last 
report  had  only  made  its  recommendation  with  reference  to  the  enactments  of  the 
Cullom  Bill,  or  with  reference  to  the  outrages  that  had  been  perpetrated  by  the  w^are- 
houses  and  packing-houses  of  the  West,  against  which,  and  against  the  railroads  in  the 
discussion  of  v^^hich,  they  hurled  their  anathemas,  as  quoted  by  the  chairman  in  his 
opening  discussion. 

Mr.  Hunton:  My  friend  is  in  error.  What  I  did  say  was  that  the  quotation  made 
from  that  report  by  the  gentleman  from  Augusta  (Mr.  Braxton)  as  to  the  violations 
of  law  and  the  destruction  of  vouchers  was  directed  as  to  secret  rebates  and  not  as  to 
rates.    That  was  what  I  stated. 

Mr.  Kendall:  Well,  sir,  I  will  accept,  then,  the  gentleman's  construction,  I  hope 
this  committee  remembers  those  anathemas  as  they  were  read  by  the  chairman.  Let 
me  present  this  question  which  does,  then,  meet  exactly  what  the  gentleman  did  say. 
If  these  railroads  and  these  packing-houses  are  engaged  in  cutting  rates  in  such  violation 
of  the  law  that  they  may  be  stigmatized  as  being  upon  the  par  of  men  who  are  guilty 
of  petty  larceny,  why  should  we  hope  that  they  will  follow  any  higher  rule  of  conduct 
when  they  come  to  this  vast  question  of  fixing  rates? 

Mr.  Hunton:  But  the  law,  as  it  was  then,  and  as  botih  the  majority  and  the 
minority  reports  make  it,  prohibited  those  secret  rebates  as  positively  as  it  was  possible 
to  do,  did  it  not? 

Mr.  Kendall:  I  am  not  denying  that.  The  argument  is  more  forcible  against  you 
because  it  is  so. 

Mr.  Hunton:  Then  would  not  the  same  violation  be  encouraged  by  giving  the 
absolute  power  to  fix  rates? 

Mr.  Kendall:    Then,  Mr.  Chairman,  I  ask  this  question: 

If,  under  the  law  which  the  gentleman  concedes  gives  this  power  to  the  commission 
to  prohibit  the  cutting  of  rates,  these  railroads  and  packing-houses  are  guilty  of  acts 


2238 


DEBATES  OF  THE  COIs^STITUTIOXAL  CONVENTION"  OF  VIRGINIA. 


which  should  invoke  or  call  from  this  commission  anathemas  as  have  been  read  to  this 
committee,  what  would  they  do  with  no  power  at  all  preventing  them  from  applying 
unjust,  unreasonable  and  unfair  rates?  If  they  defy  the  law  when  its  thunders  have 
been  opened  upon  them  and  the  prison-houses  themselves  have  been  opened  to  them, 
wlhat  will  they  do  if  you  lock   the  prison-houses  and  throw  away  the  laws? 

I  fail,  gentlemen,  to  appreciate  the  position  of  the  gentleman  fromi  Fauquier  when 
he  told  us,  as  I  understand  him  certainly  to  do,  that  we  did  not  need  any  commission, 
because  we  might  fall  back  upon  that  great  commercial  regulation  and  commercial  law 
which  had  therefore  governed  and  controlled  this  matter. 

Mr,  Hunton:  My  friend  will  pardon  me  again.  He  does  not  quote  me  accurately. 
I  never  said  we  needed  no  commission.  I  said  that  while  it  was  probably  unwise  that 
a  provision  of  a  legislative  character  should  be  put  in  the  Constitution,  it  was  proper 
that  the  roads  should  be  properly  regulated  and  supervised. 

Mr.  Kendall:  Did  not  my  friend  argue  that  these  commercial  regulations  or  rules 
would  prohibit  the  roads  from  imposing  rates  that  would  impoverish  the  country  which 
was  to  feed  them,  and  did  he  not  use  language  to  this  effect,  that  it  would  stop  the 
farmers  from  raising  their  crops,  and  the  roads  knew  better  than  to  do  such  a  thing? 
Did  he  not  made  at  least  that  argument? 

Mr.  Hunton:  Unquestionably  I  did,  but  I  also  stated  that  there  were  causes  of 
complaint;  that  there  were  wrongs,  and  that  there  should  be  a  body  to  correct  those 
wrongs  where  they  existed.  Unquestionably  I  stated  that,  and  argued  that,  and  pre- 
sented the  minority  report  as  giving  all  that  was  fair  and  reasonable  supervision  and 
regulation. 

Mr.  Kendall:  Why  Mr.  Chairman,  I  think  that  this  minority  report  itself  says 
that  no  provision  whatever  is  needed  upon  the  subject.  My  friend  certainlj^  did  assume, 
as  you  have  all  heard,  and  as  he  admits,  that  the  commercial  law  would  prohibit  the 
roads  from  establishing  rates  too  high;  and  I  have  heard  it  so  often  that  I  may  have 
attributed  more  to  him  than  perhaps  fell  from  his  lips.  Mr.  Edward  Baxter  appeared 
before  the  committee  as  attorney  for  the  road,  and  the  burden  of  his  song  was  that  we 
needed  no  such  provision,  that  we  had  one  that  was  now  fully  efficient,  that  this  com- 
mercial law  and  commercial  regulation  was  the  only  law  that  was  needed  for  the  regu- 
lation of  railroads.  Mr.  Chairman,  lest  that  same  idea  may  be  in  the  mind  of  some 
one  here  present,  let  me  say  that  the  com,mercial  law  to  which  he  referred  was  the  law 
of  competition. 

My  observation  and  reading  have  led  me  to  the  conclusion  that  the  competition  of 
markets  has  been  used  as  an  excuse  by  these  roads  to  put  their  rates,  wherever  com- 
petitive points  were  found,  at  a  point  which  would  lead  to  the  abuse  and  wrong  and 
injury  of  other  sections.  How  could  it  be  possible  that  the  competition  of  markets  could 
make  roads  fix  their  rates  as  between  each  other,  where  at  least  there  was  no  competi- 
tion whatever?  I  say  that  the  day  of  competition  is  past.  The  roads  of  Virginia  are 
controlled,  as  is  conceded,  by  one  interest— by  the  great  Pennsylvania  Railroad  sys- 
tem—the anaconda  which  has  swallowed  up  everything  in  this  section,  from  Penn- 
sylvania to  Alabama.  The  day  of  competition  is  gone.  I  heard  one  of  the  high  officials 
of  the  Chesapeake  and  Ohio  road  say  that  Mr.  Cassett,  in  investigating  the  affairs  of 
the  Pennsylvania  Railroad,  found  that  their  surplus  had  not  been  equal  to  what  it  had 
previously  been,  and  that  when  he  went  to  look  into  the  matter  he  found  it  was  by 
reason  of  the  fact  that  the  Norfolk  and  Western  and  the  Chesapeake  and  Ohio  were 
delivering  coal  at  25  cents  a  ton  cheaper  than  the  Pennsylvania  Central  could  deliver  it, 
and  that  he  said  it  was  much  cheaper  for  that  road  to  buy  a  controlling  interest  in 
those  competing  roads  than  to  enter  into  any  freight  war  with  them.  He  brought 
together  his  stockholders  and  they  made  an  agreement  that  they  would  so  do,  and  in 
due  course  of  time  the  management  of  the  Chesapeake  and  Ohio  and  of  the  Norfolk 
and  Western  went  into  the  hands  of  the  Pennsylvania  railroad;  and  then  and  there, 
said  he,  the  price  of  coal  went  up  50  cents  a  ton  in  the  markets  of  Norfolk  and  the 
East. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2239 


Competition?  Commercial  competition?  It  is  an  iridescent  dream,  a  thing  of  the 
past,  as  everj^body  who  has  cut  his  eye-teeth  now  knows.  If  we  cannot  have  the  com- 
mercial law,  for  heaven's  sake  let  us  have  the  Massachusetts  law,  say  our  friends,  the 
law  of  advice.  I  would  as  soon  think  of  talking  to  a  highway  robber  about  some  fine 
and  disputed  principle  of  ethics  when  his  hand  was  in  the  act  of  clutching  gold  as  I 
would  have  talk  about  advising  railroads  about  their  duty  in  fixing  rates.  They  would 
tell  me  I  was  talking  about  something  I  knew  nothing  about;  that  I  had  better  stick  to 
my  last  and  that  they  would  control  such  interests  as  that,  and  if  I  got  out  of  the  office 
without  being  kicked  out,  I  might  be  most  grateful. 

Massachusetts  law!  Conditions  in  IMassachusetts  differ  from  conditions  here.  I 
do  not  know  that  the  law  of  competition  has  been  entirely  swept  away  in  Massachusetts. 

Mr.  Thorn.    I  understand  that  there  is  but  one  system  of  roads  in  the  State. 

Mr.  Kendall:  I  will  say  this  to  my  friend:  When  the  railroad  commissioner 
of  Massachusetts  was  before  the  Industrial  Commission  in  Washington  last  year  he 
was  examined  by  that  commission  upon  the  matter  now  before  this  committee,  and  this 
question  was  asked  of  him,  "Is  it  not  true  that  the  power  of  the  Corporation  Commission 
in  Massachusetts  over  capitalization  goes  a  long  ways  towards  enforcing  proper  rates 
in  matters  of  railroads?"  And  he  said.  "  Undoubtedly  so."  All  of  you  may  not  be  so 
familiar  as  the  members  of  the  committee  who  made  this  report  are  with  the  powers  of 
the  Corporation  Commission  in  Massachusetts  in  matters  of  capitalization.  It  was  that 
which  was  embodied  in  the  tentative  report  that  went  out  to  the  press,  which  stirred 
up  some  of  our  corporation  friends.  The  power  of  the  Massachusetts  Commission,  when 
a  corporation  was  being  organized  and  services  and  property  was  to  be  capitalized  into 
stock,  to  pass  upon  the  valuation  of  those  services  and  property  and  fix  the  valuation  in 
stock,  and  no  stock  should  be  issued  until  that  had  been  done.  This  power,  gentlemen,  did 
go  a  long  ways  toward  enforcing  proper  rates  on  the  railroads  in  the  State  of  Massachu- 
setts. Why,  gentlemen,  can  you  not  see  that,  as  these  railroads  are  continually  run- 
ning out  their  branches  and  increasing  their  stock,  they  are  in  the  hands  of  the  Corpora- 
tion Commission  of  Massachusetts  in  that  matter  in  such  a  way  that  they  fear  to  violate 
their  advice  when  given  in  matters  of  rates.  The  Railroad  Commission  of  Massachu- 
setts, at  least,  was  of  that  opinion.  I  can  give  you  the  page  of  his  answer  in  that 
examination  before  the  Industrial  Commission.  Advice!  Why  we  have  got  a  Railroad 
Commission  that  has  given  advice,  offered  prayers  and  issued  commands.  Tell  me, 
gentlemen  of  the  committee,  what  they  have  amounted  to.  Do  you  ask  for  a  continua- 
tion of  affairs  as  they  now  stand?  If  so — if  that  is  all  you  want — for  heaven's  sake 
sweep  all  of  these  matters  out  of  the  house  and  do  not  give  us  this  minority  report. 

Mr.  Thom:  Will  the  gentleman  say  in  what  respect  they  have  been  disregarded, 
and  give  any  instance  of  it? 

Mr.  Kendall:  They  were  disregarded  in  one  case  which  went  to  the  Supreme  Court 
of  the  State,  reported  in  Ninety-eighth  Virginia.  I  would  as  soon  have  gone  to  the 
commissioner  of  New  York  or  the  commissioner  of  Massachusetts  to  know  what  has  been 
done  in  Virginia  as  to  our  own  railroad  commissioner.  Not  that  I  mean  to  impugn  him 
in  the  slightest  way  in  the  world,  but  I  am  considering  him  only  in  accordance  with 
the  powers  that  have  been  vested  in  him. 

Mr.  Hunton:  Is  not  my  friend  aware  of  the  fact  that  the  railroad  commissioner, 
in  his  last  report,  states  that  there  has  been  no  friction  on  that  subject  since  that 
decision? 

Mr.  Kendall:    No,  sir;  I  am  not  aware  of  it, 

I  come  now,  Mr.  Chairman,  to  a  matter  to  which  I  want  to  call  your  attention. 
Our  friends,  who  have  presented  to  us  the  minority  report,  have  been  good  enough  to 
say  that  something  ought  to  be  done  and  to  recommend  what  that  should  be.  I  state 
here  that  the  plan  they  have  recommended  is,  if  I  may  coin  a  word,  absolutely  unwork- 
able. I  ask  the  committee  to  give  me  a  hearing  upon  that  question.  I  say  that  the 
plan  recommended  by  the  minority  of  this  committee  is  a  thing  which  is  absolutely 
unworkable.    What  is  it?    They  provide  that  when  a  complaint  has  been  made  to  the 


2240  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

commission,  the  commission  shall  order  the  railroad  into  court.  They  provide  that  the 
com^plainant  is  to  have  the  aid  of  the  commission  and  the  power  of  the  Commonwealth's 
attorney  of  the  county  in  the  prosecution  of  that  case.  This  is  not  the  special  objection 
I  am  going  to  make  to  the  provision.  Some  of  our  Commonwealth's  attorneys  are  very 
able  men.    I  will,  however,  stop  here  long  enough  to  ask  a  question. 

What  chance  do  you  think  the  ordinary  Commonwealth's  attorney  of  a  county  would 
have  in  connection  with  the  vast  relays  of  attorneys  which  the  railroads  keep  employed 
in  their  interest,  control — aye,  control — and  management,  when  the  questions  involved 
necessitate  the  ripping  up  of  the  entire  detail  of  railroad  management  and  the  vast 
traffic  which  they  are  carrying  and  the  emoluments  to  be  derived  therefrom — because 
that  question  is  always  involved,  under  the  Fourteenth  Amendment,  as  has  been  decided 
in  the  case  of  Ames  vs.  Railroad,  reported  in  169th  United  States. 

This  case,  when  complaint  is  made,  is  to  be  carried  into  court.  Let  us  suppose  that 
the  court  is  good  enough  to  decide  the  case  for  the  complainant.  The  court  has  decided 
that  the  complaint  was  just  and  says  to  the  railroad:  "You  must  fix  this  rate  as  we 
say  you  must.  It  is  to  stand  as  so  fixed  for  all  time?  That  is  the  question  I  ask 
you.  When  a  rate  has  been  fixed  by  the  court,  under  this  minority  plan,  how  is  it 
ever  thereafter  to  be  changed?  It  stands  there  fixed  in  the  law,  imbedded  like  rock. 
It  is  the  fiat  of  this  court,  a  thing  which  we  know  is  great,  and  it  has  back  of  it,  for  its 
enforcement,  what  these  gentlemen  v/ould  seem  to  claim  to  be  almost  the  divine  power 
of  the  court.  How  can  it  be  changed?  Has  the  case  gone  out  of  court?  If  so,  that  is 
the  end  of  it.  You  can  never  change  it  until  the  question  has  been  raised  by  another 
complaint  of  some  one  else.  When  the  railroad  finds  that  it  is  necessary  to  have  a 
change  made,  they,  perhaps,  in  their  mighty  power  may  bring  about  a  different  set  of 
circumstances  in  some  way,  as,  for  instance,  in  the  way  of  bringing  about  some  apparent 
competition.  The  giant  hand  of  the  Pennslyvania  railroad,  that  controls  all  along  the 
line  from  Pennsylvania  to  Alabama,  may  touch  one  off  somewhere  that  we  do  not  know 
about.  Competition  will  arise  at  this  particular  point  or  that  particular  point,  and  then 
they  will  see  that  th-e  conditions  are  not  the  same;  that  they  have  changed,  and  the  rate 
will  at  once  be  changed  by  the  railroad  and  put  back  to  what  it  was  before  or  to  some 
other  figure.  Then,  before  the  question  can  ever  be  decided  again,  you  have  got  to  start 
another  case,  carry  it  before  the  commission,  take  it  to  the  Supreme  Court  of  the  State 
or.  to  the  circuit  court,  as  they  have  provided,  with  an  appeal  to  the  appellate  court, 
and  you  know  that  they  will  appeal  even  to  the  Supreme  Court  of  the  United  States. 
During  all  this  time,  for  months  and  years,  they  are  raking  in  the  rate  just  as  they  were 
before.    In  the  name  of  heaven,  what  nicer  little  game  could  they  desire? 

If,  on  the  contrary,  it  should  be  contended  that  the  case  is  not  to  be  dismissed,  but 
is  to  be  retained  in  court  as  a  standing  order  for  further  consideration,  what  then  is  the 
condition  of  affairs?  It  is  that  you  convert  your  courts  into  railroad  commissions,  where 
all  of  the  courts  of  the  State  are  to  be  continuously  passing  upon  questions  of  rates,  to 
the  absolute  and  exclusive  absorption  of  their  time,  so  that  I  do  not  know  that  they 
could  give  any  consideration  whatever  to  the  affairs  of  the  rest  of  us  common  mortals 
within  the  State. 

Mr.  Hunton:  The  gentleman  asks  how  the  order  of  the  court  could  be  changed, 
and  whether  it  was  fixed  for  all  time.  In  the  very  case  to  which  we  have  all  been  re- 
ferring, that  was  the  only  modification  made  by  the  Court  of  Appeals  to  the  order  of  the 
circuit  court  of  Shenandoah  county,  which  dismissed  the  case  from  the  docket.  The 
Court  of  Appeals  modified  that  order  so  as  to  retain  the  case  upon  the  docket,  in  order 
that  if  it  became  desirable  to  change  the  schedule,  that  change  could  be  made  and  the 
order  of  the  court  modified  to  conform  with  it. 

Mr.  Kendall:  I  thank  the  gentleman.  I  have  answered  him  in  advance.  I  told  him 
in  my  concluding  remark,  before  the  interruption,  that  if  the  case  should  be  retained  in 
court  you  would  then  have  your  docket  filed  forever,  with  these  cases  going  up  singly 
and  alone  from  all  parts  of  the  State,  because  each  individual  case  has  got  to  be  treated 
as  a  case  in  court  is  treated. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


Mr.  Himton:  Does  not  \-our  plan  expose  the  Court  of  Appeals  to  very  much  greater 
danger  in  that  direction  than  the  plan  of  the  minority  would  expose  the  circuit  court  to, 
by  giving  the  right  of  appeal  to  the  Court  of  Appeals? 

Mr.  Kendall:  Xot  in  the  least,  for  we  have  provided  that  all  the  evidence  shall  he 
taken  before  this  commission,  and  fully  examined  and  passed  upon  by  them,  before  it  is 
submitted  to  the  appellate  court,  and  the  Court  of  Appeals  will  have  before  it  a  record 
fully  and  completely  made  up. 

Mr.  Braxton:  Would  not  the  method  of  procedure  stiggested  by  the  gentleman  from 
Fauquier,  if  it  operated  at  all,  have  the  effect  of  constituting  every  circuit  court  in  the 
State  a  corporation  commission? 

Mr.  Kendall:  I  so  stated  just  now.  I  want  to  ask  the  gentleman  this  question. 
If  the  Court  of  Appeals  is  to  retain  the  case  in  the  Court  of  Appeals  for  further  orders, 
how  is  this  evidence  to  be  gotten,  when  a  new  cause  of  complaint  arises,  except  by 
starting  the  case  in  the  lower  court? 

Mr.  Hunton:  The  Court  of  Appeals  did  not  retain  the  case  on  its  docket.  It  re- 
manded it  to  the  circuit  court  of  Shenandoah  county  and  directed  that  it  be  retained 
upon  the  docket  of  the  circuit  court. 

Mr.  Kendall:  I  misunderstood  your  answer.  You  were  counsel  in  the  case  and 
remember  the  case  better  than  I  do. 

Gentlemen  of  the  committee,  I  think  what  I  have  submitted  to  you  upon  this  ques- 
tion demonstrates,  beyond  the  shadow  of  a  doubt,  the  unworkableness,  to  coin  a  word, 
of  this  scheme,  unless  3'ou  propose  to  convert  all  the  circuit  courts  of  the  State,  with 
their  multitudes  of  minds  differing  one  from  another,  into  railroad  commissions.  Let 
us  suppose  that  a  railroad  line  runs  through  two  judicial  districts.  One  judge  decides 
it  one  way,  and  the  other  judge  decides  it  the  other  way.  In  the  name  of  high  heaven, 
the  ruling  of  vrhich  judge  is  to  control?  I  suppose  then  you  have  got  to  take  it  to  the 
Court  of  Appeals  to  decide  which  is  right.  But  suppose  one  case  is  taken  up  and  the 
other  is  not.  If  this  is  not  a  futile,  idle  and  worthless  thing  I  never  read  of  and  never 
heard  of  one  in  my  life. 

In  the  place  of  such  a  provision  as  that,  we,  gentlemen  of  the  committee,  offer  you 
a  scheme  complete  and  full  upon  its  face.  I  am  glad  that  the  chairman  offered  the 
amendments  which  he  did  offer  this  morning.  I  reallj^  thought,  until  night  before  last, 
that  they  were  in  the  report.  They  were  in,  as  I  understood  it,  at  one  tim<='.  but  in  some 
way  or  other  they  were  omitted.  We  want  to  give  the  railroads  the  fullest  opportunity 
of  being  heard  upon  the  fullest  evidence  which  they  introduce,  and  we  want  to  do  what 
the  Interstate  Commerce  Commission  said  should  be  done  in  their  case — require  all  the 
evidence  that  is  to  be  introduced  and  go  before  the  court  to  be  first  introduced  before 
the  commission.  I  almost  feel  like  laughter  when  the  gentleman  complains  that  when 
this  commission  simply  has  reason  to  believe,  on  complaint  or  otherwise,  that  there  may 
be  a  rate  which  needs  to  be  investigated,  and  asks  the  railroad  to  come  before  them  for 
a  hearing  and  submit  their  evidence,  that  the  road  is  prejudged.  Is  there  any  possi- 
bility for  any  prejugdment  or  any  injustice  on  ajij  such  ground  as  that?  We  give  them 
the  right  to  appeal  to  the  highest  court  of  the  land.  As  I  stated  yesterday,  and  I  think 
you  will  not  deny  it,  they  will  be  able  to  bring  to  the  aid  of  the  court  all  of  the  legal 
ability  that  is  needed  without  the  addition  of  one  red  cent  to  their  expense,  for  they 
have  their  retained  lawyers  at  so  much  per  year. 

Gentlemen  of  the  committee,  I  know  that  I  have  detained  you  too  long;  but  there  is 
another  matter  to  which  I  am  going  to  call  your  attention  before  I  sit  down.  We  have 
heard  all  over  this  floor,  from  the  opposers  of  this  measure,  that  while  the  scheme  may 
be  good  enough,  with  some  exceptions,  it  would  not  do  to  put  it  into  the  Constitution; 
but  it  will  do  to  put  theii^  in  the  Constitution — remember  that,  gentlemen.  Some  of 
them.  I  think,  say  that  it  would  do  to  make  it  a  legislative  enactment,  but  they  pray 
you  not  to  put  it  into  the  Constitution.  Why,  gentlemen,  here  is  a  gi'eat,  vast  and 
mighty  question.  It  is  a  question,  as  I  said,  in  arguing  before  you  yesterday,  where 
the  fundamental  rights  of  the  people  are  involved.    I  argued  before  you  yesterday  that 


224:2  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

it  was  the  duty  of  the  government,  when  it  created  an  agency  with  such  powers  as  is 
given  to  these  railroads,  to,  at  the  same  time,  throw  around  them  government  control  to 
see  that  they  do  no  wrong. 

When  you  are  granting  to  the  proper  tribunal,  to  this  commission,  or  under  your 
present  Constitution,  to  the  Legislature,  the  power  to  grant  charters,  will  you  tell  me 
how  there  is  anything  wrong  in  principle,  at  the  same  time,  providing  in  that  Constitu- 
tion for  some  other  tribunal,  with  power  to  prevent  the  violation  of  those  charters  into 
which  there  is  written,  by  implication,  as  stated  by  the  Supreme  Court  of  the  United 
States  in  the  decision  I  read  yesterday,  the  provision  that  rates  shall  be  reasonable. 
Where  is  the  violation  of  principle?  Where  is  the  danger?  It  seems  to  me  that  the 
guard  ought  to  go  along  with  the  danger;  that  the  protection  of  the  people  ought  to  go 
along  with  the  creation  of  the  agency  which  may  oppress  and  abuse  the  people,  and  that 
it  should  be  in  the  Constitution,  where  both  are  fixed.  But  where  is  the  danger?  These 
gentlemen  say  we  may  put  something  in  here  that  is  wrong;  that  we  cannot  see  into  the 
future.  But,  gentlemen,  the  only  thing  that  we  have  really  put  in,  although  we  have 
elaborated  it  to  a  considerable  extent  in  this  Constitution,  is  that  this  commission  shall 
have  tne  power  to  fix  rates.  Is  that  a  debatable  question?  Does  anybody  want  to  leave 
that  to  the  future?  Is  that  a  thing  to  be  settled  upon  trial?  Have  we  not  reached  the 
time  when  it  has  been  tried  to  its  fullest  and  final  limit?  Has  not  the  Interstate  Com- 
merce Commission  honestly  tried  it  since  1888  or  1889,  and  have  they  not,  with  one 
uniform  and  continuing  voice,  cried  out,  "Give  us  this  power?"  Have  not  nineteen 
States  of  this  Union  tried  it  and  found  it  good  and  well?  What  longer  trial  do  you 
want?  I  am  afraid  that  my  friends  are  becoming  republicanized.  It  sounds  like  that  old 
thing  we  used  to  hear  about  the  tariffs.  They  were  in  their  infancy,  and  one  hundred 
years  has  not  brought  them  out  of  their  infancy.  They  are  more  infants  now  than  they 
were  in  the  days  of  Henry  Clay.  If  anything  is  settled  upon  this  question  it  must  be 
conceded  that  this  is  settled  and  settled  fully.  This  power  to  fix  rates  is  a  great  public 
necessity,  and  I  say  there  is  nothing  in  this  provision  of  ours  that  these  gentlemen  can 
object  to  or  do  object  to,  as  I  understand  them,  except  the  provision  as  to  fixing  rates. 
Mr.  Thom:    You  are  very  much  mistaken  about  that. 

Mr.  Kendall:  I  do  not  mean  to  say  that  there  are  not  some  other  questions  upon 
special  provisions  that  will  arise  hereafter  for  separate  discussion;  but  I  do  say  that 
their  one  great  complaint  is  with  regard  to  fixing  rates,  and  I  say  that  is  a  subject  which 
has  been  settled  by  experience — the  greatest  of  all  teachers.  It  is  by  "the  lamp  of  ex- 
perience," as  the  chairman  of  the  Convention  said,  quoting  from  the  immortal  Henry 
Clay,  "by  which  our  feet  are  guided."  I  say  to  3'ou  that  if  you  put  this  article  in  the 
Constitution  it  will  settle  the  question,  and  your  Legislatures  will  not  forever  hereafter 
be  harassed  and  worried  by  the  logrolling  of  these  railroads.  But  gentlemen  tell  us 
that  if  you  put  it  into  the  Constitution  it  will  bring  the  railroads  into  politics.  Poor 
things!  Something  they  have  never  thought  of  before.  I  ask  you,  then,  if  you  leave  it 
to  legislative  enactment  if  it  will  not  bring  the  railroads,  or  rather,  if  it  will  not  keep 
them  in  politics,  for  they  are  already  there,  and  always  have  been,  and  generally  on 
top.  Put  it  into  the  Constitution  and  it  will  be  a  settled  question.  They  will  then  know 
that  it  is  there  duty  to  obey  this  commission,  and  this  mighty  word  "control"  will  con- 
trol. But  if  you  leave  it  to  the  legislature,  gentlemen,  it  will  be  an  eternal  question  of 
contention,  and  God  knows  whether  we  will  ever  have,  and  in  my  opinion  we  never  will 
have,  anything  in  the  world  that  is  worth  a  bauble. 

This  is  but  the  beginning,  gentlemen  of  this  committee,  of  that  fight  that  looms  up 
in  the  future,  which,  to  my  mind,  is  to  be  the  great  contest  of  the  future — the  battle 
between  the  people  and  capital.  This  progeny  of  modern  industry  has  grown  so  great 
that  it  has  forgotten  the  meat  upon  which  it  doth  feed.  It  is  time  we  should  teach  it 
the  lesson  which  it  has  forgotten.  It  is  a  lesson  which  goes  back  to  the  great  principles 
of  civil  liberty,  which  our  fathers  thought  out  and  fixed. 

You  dare  not  evade  this  question  now;  and  if  you  do,  I  tell  you  that  you  will  be  re- 
creant to  those  great  principles,  and  you  will  commit  the  people  to  the  domination  of 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYEXTION"  OF  YIRGIXIA. 


2243 


those  who  have  dominated  them  in  the  past  to  their  great  wrong,  injustice  and  injury. 

Gentlemen,  I  beg  your  pardon  for  delaying  you  as  I  have.  After  the  splendid  pre- 
sentation of  the  question  before  you  by  the  chairman  of  this  committee,  and  after  the 
burning  eloquence  of  the  gentleman  from  Manchester,  and  his  splendid  logic,  I  feel  that 
it  was  pretentious  on  my  part  to  arise  and  address  you;  but  it  was  a  duty  which  I  felt 
I  owed  as  a  member  of  this  committee,  and  I  pray  you  that  if  I  have  been  too  ardent  or 
said  aught  that  I  should  not  have  said,  you  will  at  least  attribute  it  to  no  purpose  of 
mine  to  erect  in  this  land  any  spirit  of  populism.  From  the  days  of  my  earliest  thought 
upon  political  questions,  to  this  hour,  the  one  great  cardinal  principle  with  me  has  been 
to  give  as  much  power  to  the  people  and  as  little  to  government  as  possible.  But  I  tell 
you  that  in  fighting  out  this  great  battle  the  people  will  not  be  trifled  with.  From  the 
language  of  the  commission  which  I  read  to  you,  you  will  see  that  it  is  a  question  in 
their  minds  already  whether  or  not  it  is  possible  to  control  these  railroads  except  by 
government  ownership.  They  tell  you,  from  one  end  of  this  country  to  the  other,  that 
question  is  arising.  It  has  already  been  adopted  as  one  of  the  cardinal  principles  of 
populism.  I  wish  it  might  be  possible  to  stay  the  progress  of  that  creed,  which  I  be- 
lieve is  a  mistaken  one.  If  you  are  to  settle  it  as  all  other  great  political  questions  are 
settled — by  putting  it  upon  the  principles  of  common  justice;  for  until  things  are  settled 
right,  they  are  not  settled.  If  it  is  right  that  the  people  of  this  country  should  control 
their  destinies,  the  question  can  never  be  settled  until  it  is  so  fixed  that  they  do  control 
them.  I  will  tell  you,  my  friends,  one  and  all  now  and  here,  you  must  decide  that  ques- 
tion. I  conceive  it  to  be  the  greatest  and  most  important  one  that  can  arise  before 
this  Convention,  save  one. 

Gentlemen  of  the  committee,  I  thank  you.    (Great  applause.) 

Mr.  Robertson:  Mr.  Chairman,  I  will  not  as  some  of  my  friends  have  seen  proper 
to  do,  make  any  apology  whatsoever  for  speaking  on  this  question.  I  conceive  it  to  be 
the  right  of  every  representative  of  the  people  upon  this  floor  to  say  what  he  thinks 
about  every  question  that  comes  up,  and  I  think  he  ow^es  no  apology  to  any  man  in  this 
body,  or  out  of  it,  for  speaking  upon  any  question  that  may  come  before  it. 

I  will  state  at  the  outset,  that  some  of  my  very  good  friends  in  this  body,  who  hap- 
pen to  differ  from  me  on  this  question,  have  been  kind  enough  to  say  to  me  that  they 
hoped — on  my  own  account  only — I  would  not  speak  in  regard  to  this  important  matter, 
(Laughter.) 

Well,  Mr.  Chairman,  if  the  way  in  which  I  talk  about  this  question,  or  the  way  in 
which  I  vote,  is  going  to  ruin  me,  let  the  ruin  come.  It  will  not  be  my  fault,  but  the 
fault  of  the  people  who  ruin  me.  I  hope  I  nave  not  gotten  to  that  point  where  I  cannot 
get  up  here  and  say  what  I  honestly  believe  about  every  question  that  comes  before  this 
body,  without  unduly  considering  what  the  people  may  think  of  my  conduct,  or  what 
those  controlling  corporations  may  desire. 

Now,  Mr.  Chairman,  this  question  is  not  one  involving  a  fight  or  battle  between  the 
people  on  the  one  hand  and  the  railroad  companies  and  other  corporations  of  this 
State  on  the  other.  I  have  heard  a  great  deal  in  private  talk,  by  way  of  suggestion  and 
comment,  to  the  effect  that  the  railroad  attorneys  will,  as  a  matter  of  course,  defend  the 
railroads;  that  their  arguments  are  unworthy  to  be  heard,  and  that  they  should  be  prac- 
tically tabooed  in  this  Convention.  On  the  other  hand  the  people  who  represent  all  the 
other  interest,  have  got  a  right  to  get  up  here  and  say  whatever  they  choose  in  abuse  of 
the  railroads  and  other  corporations.  Now,  I  say  if  a  man  who  is  connected  with  the 
railroad  companies,  or  a  man  who  has  had  railroad  companies  for  clients,  is  prejudiced 
in  favor,  where  is  the  man  who  has  been  bringing  suits  against  the  railroad  companies, 
or  the  farmer  who  has  been  shipping  goods  over  the  railroads,  who  is  not  just  as  much 
prejudiced  against  those  companies?  Let  us  discount  all  this  matter  of  prejudice. 
Let  us  not  consider  this  matter  from  a  personal  standpoint,  but  rather  let  us  consider  it 
in  the  cold  light  of  reason.  Let  us  see  what  these  gentlemen,  in  their  honest  zeal — and 
I  admit  they  have  honest  zeal  in  this  matter — are  attempting  to  argue  this  Convention 
into  doing.    I  respectfully  submit  that  this  is  not  simply  a  question  of  whether  rail- 


2244 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 


road  rates  ought  to  be  controlled  or  not.  It  is  not  simply  a  question  of  whether  there 
ought  to  he  a  commission  which  can  regulate  and  dominate  the  railroad  companies  with 
reference  to  the  connections  that  they  may  make,  and  all  of  the  other  rules  which 
generally  govern  them  in  their  treatment  of  the  public  dealing  with  them.  The  ques- 
tion is  not  before  a  legislative  body  here.  We  are  not  assembled  here  as  the  General 
Assembly  of  Virginia.  From  the  arguments  that  I  have  heard  here,  if  I  was  a  stranger 
and  had  stepped  in  here,  not  knowing  what  this  body  was,  I  would  have  thought  that 
these  men  assembled  here  were  the  representatives  of  the  people  in  Legislature  assem- 
bled, and  that  they  were  discussing  the  merits  of  some  great  legislative  enactment  which 
the  people  had  sent  them  here  to  consider. 

Now,  I  respectfully  submit  that  we  were  not  sent  here  to  consider  questions  of  this 
kind.  We  were  not  assembled,  and  the  people  did  not  call  us  here,  for  the  purpose  of 
acting  as  a  Legislature.  Certainly  there  must  be  some  line  drawn  between  the  Gene- 
ral Assembly  of  Virginia  and  the  Constitutional  Convention,  or  we  will  have  to  abolish 
the  General  Assembly.  What  is  the  General  Assembly  for,  I  pray  you,  if  we,  sitting 
here,  are  going  to  undertake  to  say  that  we  will  legislate  about  subjects  that  the 
General  Assembly  has  always  heretofore  been  called  to  deal  with?  Now,  that  is  at  the 
bottom  of  this  v/hole  matter. 

I  am  not  going  to  weary  this  committee  by  talking  about  figures  and  reading  statis- 
tics, and  talking  about  whether  a  railroad  company  has  treated  anybody  with  injustice 
or  not,  nor  what  the  rates  should  be.  I  am  going  to  confine  what  I  say  strictly  and 
simply  to  the  question  of  whether  or  not  this  is  a  proper  subject  to  put  into  our  Con- 
stitution, because  that,  it  seems  to  me,  is  the  real  question. 

I  will  state  frankly  that  I  am  opposed  to  both  the  majority  and  the  minority  report 
in  this  matter.  Neither  of  them  have  any  business  in  the  Constitution.  The  gentlemen 
have  argued  here  about  the  Interstate  Commerce  law,  and  about  the  nineteen  States  in 
the  Union  that  have  commissions,  and  they  have  gone  into  the  details  of  what  the 
powers  of  this  commission  should  be;  but  when  they  come  to  this  crucial  question,  as 
to  whether  this  report  should  be  embodied  in  the  Constitution,  which  it  seems  to  me 
they  ought  to  have  established  before  they  went  to  any  other,  the  only  argument  they 
make  is  that  our  General  Assembly  has  never  provided  for  this  wise  law  they  offer  to 
us  here.  Is  that  a  legitimate  argument?  Let  us  see,  in  the  first  place,  where  that  argu- 
ment leads.  Assume,  for  the  sake  of  argument,  and  it  is  a  mere  assumption,  that  there 
has  been  an  effort  to  get  legislation  of  this  kind — some  general  public  effort  to  get  this 
action — and  that  the  General  Assembly  has  not,  as  yet,  granted  the  people  what  they 
want.  Is  that  any  reason  for  putting  it  into  the  Constitution?  Gentlemen,  our  govern- 
ment is  a  representative  form  of  government.  The  law-making  power  is  placed  in  the 
hands  of  the  General  Assembly.  Our  English  forefathers,  unto  this  day,  in  that  great 
little  island  across  the  sea,  have  no  written  constitution.  Parliament  there  is  supreme. 
When  we  came  to  frame  our  government  in  America,  we  had  been  living  under  charters 
granted  to  us  by  the  Crown,  and  those  charters  were  taken  as  a  kind  of  guide  by  which 
the  people  undertook  to  provide  constitutions  for  our  government;  but  it  was  never 
thought  of  by  our  fathers;  it  never  entered  into  the  remotest  corner  of  the  mind  of  a 
single  one  of  those  great  men,  who  are  so  often  referred  to  here  on  this  floor,  that  they 
were  going  to  tie  up  in  the  manner  now  proposed  the  supreme  law-making  power  of  this 
State  by  the  Constitution  vv^hich  they  framed.  Why,  in  the  very  nature  of  things,  gen- 
tlemen, a  Legislature  should  have  all  law-making  power — absolutely  untrammeled,  ex- 
cept so  far  as  the  absolute  necessities  of  society  require  that  its  power  be  restrained. 
We  have  a  right  to  say  what  sort  of  governonent  we  are  going  to  have;  we  have  a  right 
in  a  general  way  to  outline  the  powers  of  these  different  branches  of  the  government, 
and  to  put  into  the  Constitution — which,  after  all,  is  simply  a  matter  of  the  people  tying 
their  hands — all  of  those  strictly  fundamental  matters,  that  lessons  of  years  of  experi- 
ence have  taught  us  are  fundamental.  But  that  is  no  excuse  for  saying  that  we  must 
put  into  the  Constitution  things  which  in  their  nature  are  bound  to  change  as  society 
changes.    Now,  let  me  bring  my  remarks  down  closer  home,  to  what  we  have  under 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOIs   OF  YIRGIXIA. 


22-15 


consideration  here.  But  before  I  come  to  that,  let  me  say  I  have  heard  it  remarked  by 
some  gentlemen  that  they  cannot  understand  the  difference  betYveen  a  legislative  enact- 
ment and  a  constitutional  provision;  they  say  that  some  of  us  appeal  to  this  theory 
when  we  do  not  want  a  thing,  and  break  over  it  when  we  do  wa.nt  a  provision  of  our 
own  inserted.  To  some  extent  that  may  be  true;  but  im questionably  there  is  a  broad 
distinction,  and  I  think  I  can  illustrate  it  by  the  comments  that  I  will  make  upon  this 
enactment  of  twenty-six  pages,  which  is  proposed  to  be  put  into  the  Constitution. 

Now,  this  article  begins  like  the  Interstate  Commerce  act,  and  other  acts,  by  giving 
a  great  number  of  definitions  about  the  words  it  is  going  to  use.  It  then,  after  having 
defined  them,  provides  how  charters  to  corporations  shall  be  granted.  Then,  in  Section 
3,  it  undertakes  to  provide  for  this  commission,  and  under  Section  4  it  undertakes  to 
prescribe  the  duties  of  this  commission,  with  a  minute  detail  that  I  have  never  seen  in 
an  act  of  the  General  Assembly.  After  prescribing  their  general  duties  it  splits  up  into 
a  number  of  sub-divisions,  covering  every  letter  in  the  alphabet.  It  starts  out  with  "a" 
and  goes  on  b,  c,  d,  e,  f,  g,  h,  i,  j,  k  and  1 — I  believe  it  goes  down  to  the  middle  of  the 
alphabet.  It  not  only  prescribes  in  a  general  v/ay  what  this  commission  have  a  right  to 
do,  but  it  tells  them  exactly  how  they  shall  do  it. 

Take  the  question  of  appeal  to  the  court.  It  actually  tells  the  Court  of  Appeals  how 
it  must  act  when  these  questions  come  before  it.  In  our  Judiciary  report,  while  we  went 
a  great  deal  further  than  I  believe  we  ought  to  have  gone,  we  did  not  go  that  far.  It 
tells  the  Court  of  Appeals  that  it  must  act  as  the  gentleman  upon  this  corporation  com- 
mittee thinks  that  court  ought  to  act,  although  that  is  a  judicial  body,  which  in  its  nature 
is  bound  to  act  judicially.  It  goes  into  every  kind  of  minute  detail  as  to  what  the 
powers  and  duties  of  this  commission  shall  be.  You  gentlemen  are  familiar  with  the 
matter,  and  there  is  no  use  in  my  taking  up  the  time  of  the  committee  in  discussing  all 
those  enumerated  powers  and  duties. 

Mr.  Hunton:  They  tell  the  courts  that  they  must  keep  open  every  day  except 
Sundays  and  legal  holidays. 

Mr.  Robertson:  Yes;  that  they  must  sit  every  day  except  legal  holidays  and  Sun- 
days. I  think  they  ought  to  have  provided  that  a  machine  should  be  invented,  called 
"a  commissioner"  to  do  this  work — a  machine  with  great  intelligence,  but  with  little 
soul  and  no  bodily  infirmities. 

But  supposing  this  provision  should  go  into  operation,  I  want  to  point  out  where  the 
danger  lies.  I  v/ant  to  speak  to  you  men  who  have  feelings  like  those  of  my  friend 
from  Northampton  (Mr.  Kendall),  who  has  just  closed  his  address.  When  he  was  asked 
any  question  about  this  matter  his  replies  showed  the  intense  bitterness  of  his  feelings 
against  the  railroad  companies.  Let  me  assume,  for  the  purposes  of  argument,  that 
these  feelings  are  justified  by  the  facts.  Let  me  appeal  to  you  who  are  being  appealed 
to  here  along  the  line  of  prejudice.  I  am  not  here  to  defend  the  railroad  officials  or  any- 
body else  for  doing  wrong,  because,  I  will  say  in  passing,  there  is  nobody  in  this  Com- 
monwealth who  does  not  do  wrong  sometimes.  Our  criminal  laws  are  being  evaded  and 
violated  every  day,  and  our  laws  of  all  kinds  are  being  violated  every  day.  The  rail- 
road companies  evade  and  violate  them — I  admit  it.  I  am  not  sa3^ing  one  word  about 
whether  you  ought  to  control  them  or  not. 

But  in  return,  upon  this  floor,  this  morning,  after  this  preliminary  debate  has  only 
proceeded  thus  far,  the  chairman  of  this  Committee  on  Corporations,  on  account  of  the 
weight  of  the  argument  made  against  this  report,  saw  fit  to  get  up  and  offer  amend- 
ments to  the  language  which  he  had  used  therein.  Human  language  is  defective.  I  do 
not  care  what  the  thought  in  the  mind  of  my  distinguished  and  able  friend  from  Augusta 
(Mr.  Braxton)  may  be,  however  able  he  is,  however  skilled  in  the  use  of  language  any 
or  all  of  them  may  be,  I  say  that  they  cannot  prepare  an  act  of  twenty-six  pages,  deal- 
ing with  a  new  matter,  giving  new  rights  and  remedies,  without  the  language  being 
capable  of  more  than  one,  and  probably  of  two,  three  of  four  constructions.  How  do 
you  know — how  does  any  one  in  this  body  know — what  construction  the  Court  of  Appeals 
may  put  upon  any  of  these  various  clauses  which  these  gentlemen  have  been  talking 


2246 


DEBATES  OF  THE  CONSTITUTIOXAL  COXYEiS^TIOX  OF  YIRGIXIA. 


about  so  long?  I  ask  that  question  in  all  seriousness.  Looking  at  it  from  that  stand- 
point, suppose  the  Court  of  Appeals  should  hold  one  of  these  clauses  that  you  think 
means  a  certain  thing,  which  gives  this  commission  power  over  these  railroad  com- 
panies in  the  way  you  want  them  to  have  it,  was  practically  a  nullity,  and  did  not  have 
the  effect  which  you  intended  it  to  have.  Have  you  not  tied  your  hands?  Have  you  not 
tied  them  so  that  the  people  cannot  get  what  they  want,  if  the  people  want  what  you 
say  they  do? 

But  the  gentleman  says,  there  is  here  the  power  of  amendment.  Let  us  look  at  that 
power  of  amendment  which  is  given  the  Legislature.  The  Legislature  is  not  given  an 
unlimited  power  of  amendment.  Look  at  line  243  on  page  16  of  this  report  and  you  will 
find  the  only  power  of  amendment  which  the  majority  of  this  committee  want  to  give  to 
the  Legislature,  unless  some  one  of  the  amendments  I  brought  in  this  morning  gives  a 
more  extended  power  of  amendment.  I  hope  my  friend  from  Augusta  will  continue  to 
amend  this  report  until  he  gets  it  exactly  the  opposite  to  what  it  is  now.  Whenever  we 
make  a  strong  argument  against  it,  he  meets  it — not  with  an  argument,  but  with  an 
amendment.  But,  as  it  stands  now,  here  is  the  power  of  amendment  given  to  the  Legis- 
lature. I  say  that  the  power  of  amendment  of  laws  is  the  crucial  question  involved  in 
all  of  these  cases.  Is  it  a  law  which,  in  its  nature,  should  be  amended  from  time  to 
time,  as  the  exigences  of  the  case,  the  necessities  of  the  people  and  the  good  of  this 
Commonwealth  require?  If  it  is  it  ought  not  to  go  into  this  Constitution.  Now  let  us 
see  what  power  of  amendment  we  have  under  this  provision  of  the  majority  report: 
"After  the  first  day  of  January,  1905" — you  can  get  no  amendment  at  all  before  then. 
These  clauses  cannot  be  amended  at  all  until  1905,  and  who  knows  what  may  happen 
during  that  period — 

"The  General  Assembly,  upon  the  recommendation  of  the  said  commission" — not 
upon  the  demand  of  the  people;  not  because  of  the  fact  that  there  has  been  a  heated 
campaign  in  Virginia,  involving  the  question  of  the  control  of  these  railroads,  and  the 
people  have  sent  their  representatives  here  to  carry  out  their  wishes,  but  upon  the 
recommendation  of  this  very  body  of  men  which  you  propose  to  put  in  supreme  power 
over  the  greatest  interests  we  have  in  this  Commonwealth.  You  cannot  turn  a  wheel, 
in  the  way  of  legislation,  until  the  commission,  which  you  propose,  recommends  that  an 
amendment  shall  be  made. 

"Upon  the  recommendation  of  the  said  commission  may,  from  time  to  time" — I  do 
not  know  whether  these  gentlemen  mean  that  the  only  amendment  the  Legislature  can 
make  is  one  which  is  recommended  to  them  by  this  commission.  I  do  not  know  whether 
it  means  that  or  not.  I  do  not  know  whether  it  means,  if  this  commission  recommends 
some  change,  that  the  Legislature  could  make  some  other  amendment  or  not;  but  cer- 
tainly it  is  capable  of  the  construction,  that  they  must  make  only  such  amendments  as 
are  recommended  by  the  commission. 

These  gentlemen  who  argued  so  strongly  in  favor  of  this  commission— and  I  have 
nothing  to  say  against  that;  I  state  candidly  I  believe  a  proper  railroad  commission  is  a 
necessity— these  gentlemen  who  argue  for  it,  and,  in  the  next  breath,  speak  of  these 
railroad  companies  as  if  they  were  pariahs,  as  if  they  were  worse  than  pariahs,  because 
they  speak  of  them  as  if  they  w^ere  some  kind  of  Juggernauts,  not  only  running  along 
the  rails  that  they  have  paid  the  money  to  run  upon,  but  running  over  the  rights  and 
bodies  of  the  people  of  the  Commonwealth,  occupy  a  remarkable  position.  If  these  rail- 
road companies  are  the  monsters  they  are  represented  to  be,  if  they  propose  to  get  the 
people  in  their  grasp  and  keep  them  there,  is  there  not  a  danger,  gentlemen— and  I  call 
your  attention  to  it  now;  we  are  not  sitting  here  to  listen  to  the  popular  clamor  of  peo- 
ple who  have  not  read  this  article  outside  this  body,  because  I  do  not  believe  many  men 
outside  of  it  have  read  it  carefully!  I  have  read  it  three  times  and  do  not  understand 
what  it  means— is  there  not  a  danger,  I  say,  of  these  giant  railroad  combinations,  that 
my  friend  from  Staunton  was  so  eloquent  about,  getting  hold  of  this  commission?  Is  it 
not  much  easier  to  get  three  men  than  it  is  to  control  a  majority  in  the  Senate  and  in 
the  House  of  Delegates?    The  Governor  appoints  them,  under  the  provisions  of  the  re- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


port,  and  ttie  Legislature  confirms  them.  The  Legislature,  of  which  you  have  this  ter- 
rible distrust,  the  people  who  are  not  able,  as  you  say,  to  compel  their  representatives 
to  do  what  they  demand.  The  Governor,  who  is  elected  by  the  people,  who  are  supposed 
to  be  bought  up  by  the  railroad  company,  is  to  select  the  members  of  this  commission, 
and  yet  it  is  assumed  that  for  all  time  to  come  they  will  be  perfectly  honest  men  and 
that  everything  they  do  will  be  in  the  interest  of  the  people. 

Can  you  assume  any  such  thing  as  that?  Suppose  they  will  not  make  the  recom- 
mendation as  to  amendments?  I  think  in  the  course  of  five  years  it  is  more  than  likely 
you  will  find  it  will  be  proper  to  introduce  some  other  amendments  here,  judging  by  the 
rapidity  with  which  they  have  come  in  here  so  far.  I  think  we  maj'  take  it  for  granted 
there  will  be  other  amendments  needed  within  a  few  years.  What  are  you  going  to  do 
about  that?  You  cannot  get  any  amendments  at  all  unless  the  members  of  this  com- 
mission recommend  them. 

Let  us  go  a  little  further.  You  cannot  get  any  amendments  on  certain  portions  of 
this  section,  whether  the  commission  recommends  them  or  not.  Gentlemen,  this  is  a 
grave  question.  You  cannot  decide  this  question  by  talking  about  whether  people  have 
done  wrong  or  not.  You  might  just  as  well  argue  against  the  criminal  classes  of  the 
Commonwealth.  If  I  had  the  strength  I  could  curse  and  villify  the  miserable  scoundrel 
that  murdered  that  poor  old  woman  down  yonder  in  Lunenburg  county.  I  could  attack 
the  vicious  classes  of  every  city  in  the  Commonwealth,  and  if  I  had  the  eloquence  of  the 
distinguished  gentleman  from  Northampton  (Mr.  Kendall),  probably  I  could  make  you 
i tingle  with  indignation  against  them;  but  would  any  of  you  be  rash  enough,  unwise 
enough,  because  I  said  the  laws  of  the  Commmonwealtli  were  not  being  enforced,  that 
there  are  defects  in  them  which  the  Legislature  has  not  corrected,  to  say  we  must  put 
the  criminal  laws  of  the  Commonwealth  into  our  Constitution?  Gentlemen,  the  viola- 
tion of  the  law  is  no  argument  for  taking  away  from  the  law  making  power  of  the 
State  the  right  to  make  the  laws? 

Xow  let  tis  see.  The  only  changes  that  can  be  made  here  shall  be  made  upon  the 
recommendation  of  three  men.  who  will,  after  all,  be  men,  and  who,  perhaps,  may  be 
influenced  by  some  of  the  motives  by  which,  as  these  gentlemen  claim,  the  Legisla- 
ture is  influenced.  But  that  is  not  all.  You  will  notice,  if  you  look  at  the  Section  I 
refer  to.  that  the  only  change  you  can  make  in  this  matter  is  with  reference  to  sub- 
sections D.  E.  F,  G.  H  and  L    Xow,  turn  back  and  see  what  sections  you  cannot  amend. 

Section  A  and  the  following  sections  deal  largely  with  the  question  of  appeals — the 
manner  of  permitting  those  appeals  and  in  what  cases  they  shall  lie.  The  Legislature, 
on  the  recommendation  of  this  commission,  can  change  that  :  but  let  us  look  at  these 
other  sections. 

Section  4  contains  prior  to  sub-section  D,  sub-section  A.  B  and  C.  I  will  not  read 
those  sections,  because  the  gentlemen  of  the  committee  are  familiar  with  them;  but 
I  respectfully  submit  that  whatever  you  may  think  about  the  necessity  of  having  a 
commission  to  regtilate  rates,  all  of  you  are  botmd  to  admit,  and  every  argument  these 
gentlemen  have  made  here  has  been  on  the  theory  that  the  making  of  the  rates  is 
the  most  important  matter  in  the  whole  thing.  I  defy  any  of  them  to  deny  it.  They 
say  that  is  what  they  want  this  commission  for,  that  that  is  the  reason  these  other 
commissions  which  are  created  by  legislature  or  by  Congress  are  inefficient,  because 
they  cannot  fix  rates  and  enforce  them;  and  yet  the  very  clause  in  this  report  which 
gives  this  commission,  composed  of  three  men,  paramotint  power — a  word  that  is 
very  offensive  to  me,  at  least — over  this  Commonwealth,  provides  that  the  Legislature, 
which  represents  the  people,  is  absolutely  prohibited  from  altering  or  changing  it. 
If  I  am  wrong  in  that  I  should  like  to  be  corrected.  I  have  read  this  thing  over  care- 
fully, and  I  cannot  see  how  you  can  change  it,  except  by  getting  a  constitutional 
amendment  to  it.  I  pause  to  know  whether  that  is  not  correct.  I  think  that  is  the 
effect  of  it. 

Now,  gentlemen.  I  have  had  some  experience.  I  was  delighted  the  other  day  when 
my  distingtiished  friend  from  Richmond  (Mr.  3,Ieredith)  included  me  with  a  lot  of  young 


2248 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


men  here  and  said  we  were  all  from  ten  to  fifteen  years  younger  than  he  is.  It  delighted 
my  heart  to  find  that  I  looked  young  enough  for  my  friend  to  think  that.  But  I  have 
had  some  experience  in  this  life.  I  have  been  here  some  time  myself.  My  hair  has  not 
gotten  quite  as  gray  as  his,  but  there  are  a  good  many  lines  in  my  face  that  have  been 
caused  by  my  struggle  in  life,  and  I  know  something  about  the  laws  under  which  we 
have  to  live.  I  have  had  some  little  experience  at  the  bar,  and  some  experience  on  the 
bench,  where  I  looked  at  both  sides  of  matters,  I  hope.  I  have  never  known  the  Legis- 
lature to  pass  any  law  involving  any  great  right— take  for  instance,  the  married  woman's 
law,  or  any  law,  I  care  not  what— when  it  has  not  become  apparent  within  a  few  years 
that  that  law  does  not  meet  the  requirements  of  the  case,  does  not  fully  carry  out  the 
objects  which  its  promoters  had  in  view. 

Take  the  married  woman's  law.  It  has  been  amended  at  nearly  every  session  of  the 
Legislature.  These  sorts  of  things  have  to  be  amended  until  experience  teaches  us  they 
need  no  further  amendment.  Our  great  body  of  the  common  law  is  practically  amended 
by  the  judges  where  it  is  not  perfected  by  legislation.  As  new  times  and  new  circum- 
stances arise  the  judges  make  that  law  fit  into  those  new  times  and  circumstances. 
Our  great  body  of  legislative  law,  which  commenced  after  the  old  Constitution  of  1776 
was  adopted,  has  been  the  gradual  growth  of  the  experience  of  our  people. 

If  v/e  adopt  this  report  we  enter  upon  a  new  and  important  field.  I  confess 
that  I  know  nothing  of  the  details  of  such  matters,  and  venture  to  say  there 
are  comparatively  few  members  of  this  body  who  could  write  an  intelligent  treatise  on 
this  subject,  because  it  is  a  subject  that  transcends  the  petty  village  affairs  that  most  of 
us  have  to  deal  with.  This  question  of  the  great  powers  of  these  common  carriers 
which  the  gentleman  from  Augusta  spoke  about  so  eloquently  is  a  matter  not  for  our 
Legislature  even  to  deal  with,  in  its  broad  sense,  but  Congress  is  compelled  to  deal  with 
it,  because  it  is  not  bound  by  the  lines  of  this  State.  This  whole  continent  is  affected 
by  these  great  public  carriers.  Our  whole  civilization  has  been  changed  by  the  build- 
ing up  of  these  great  mighty  highways  upon  which  all  the  commerce  of  this  country  is 
transported;  and  we  cannot  undertake  to  deal  with  it  here  in  this  body  of  one  hundred 
men.  I  do  not  care  if  we  came  up  even  to  the  representations  that  the  newspapers  were 
kind  enough  to  give  us  when  we  first  came  here.  (Laughter.)  Suppose  we  are  the 
wisest  men  in  the  commonwealth;  suppose  we  are  all  actuated  by  the  highest  and  noblest 
sentiments,  by  feelings  of  the  purest  patriotism — and  I  believe  that  most  of  us  are 
actuated  in  that  way  to  a  very  large  extent — yet  every  one  of  us,  gentlemen,  has  two 
sides  to  his  nature.  Every  one  of  us,  I  hope,  has  some  intellect,  but  at  the  same  time 
we  have  an  emotional  nature,  and  the  intellectual  is  not  always  in  control  over  the 
emotional  nature.  We  may  be  honest  in  the  sense  that  we  think  we  are  right,  but  on  a 
great  many  questions  we  are  unable  to  think  right  because  the  emotional  side  of  our 
nature  dominates  the  intellectual  side. 

I  do  not  claim  I  am  any  superior  to  any  other  man.  I  am  perfectly  willing  to  be- 
lieve, and  I  do  in  the  frankest  manner  believe,  that  every  gentleman  in  this  body  is 
actuated  by  an  honest  motive  and  desire  to  protect  and  preserve  the  highest  interests  of 
the  Commonwealth;  but  can  we  say  that  we  are  so  free  from  our  prejudices  and  emo- 
tions as  to  have  such  clear  minds  and  intellects  that  we  can  look  into  the  future,  that  we 
can  say  what  should  be  the  law  of  this  Commonwealth  with  reference  to  one  of  the 
greatest  interests  in  the  Commonwealth  until  this  Constitution  be  amended. 

Now,  that  is  a  grave  question,  gentlemen.  It  is  not  whether  you  want  the  thing  or 
not.  It  is  not  whether,  if  you  were  in  the  Legislature,  you  would  advocate  this  measure. 
It  is  a  question  whether  you  are  willing  to  put  beyond  alteration  the  work  of  men  who 
certainly  have  some  of  the  failings  that  most  men  have,  who  certainly  cannot  always 
express  themselves  in  such  language  that  the  people  will  understand  what  they  write. 
There  comes  to  my  mind,  at  this  point,  an  illustration  of  this,  so  striking  that  I  call 
your  attention  to  it.  When  my  friend  got  up  this  morning  to  offer  those  amendments 
there  could  be  no  stronger  argument  against  making  this  report  a  part  of  the  Consti- 


DEBATES  OF  THE  COis^STITUTIOXAL  CONVENTION  OF  VIRGINIA.  2249 

tution  than  the  spectacle  of  two  sincere,  earnest  men  differing  about  the  meaning  of 
important  provisions  contained  in  it. 

This  commission  you  appoint  may  take  a  different  view  from  that  of  either  of  my 
friends,  and  yet  you  are  going  to  say  you  will  keep  this  thing  here  as  a  permanent  part 
of  our  law  for  all  time  until  this  Constitution  is  changed. 

Why,  gentlemen,  I  cannot  see  that  the  importance  of  the  matter  has  anything  to 
do  with  reference  to  whether  it  shall  be  constitutional  or  legislative.  That  is  not  the 
question.  The  more  important  it  is  the  more  apt  you  are  to  do  harm  by  making  it  per- 
manent. Is  not  that  true?  Is  it  not  bound  to  be  true?  And  here  you  propose  to  tie  up 
the  people  so  that  our  Legislature  cannot  respond  to  their  appeals,  cannot  change  the 
law,  even  though  the  whole  people  were  to  rise  up  and  demand  it.  We  would  have  to 
go  through  the  slow  process  of  a  Constitutional  Convention,  or  of  submitting  an  amend- 
ment to  the  people,  and  you  know  how  unsatisfactory  that  is,  especially  as  to  a  ques- 
tion of  this  kind,  for — and  I  do  not  care  who  hears  me  say  it — I  do  not  believe  that  most 
men  can  understand  the  effect  of  these  provisions.  I  do  not  believe  the  masses  of  the 
people  can  understand  these  complicated  provisions.  They  simply  have  a  general  idea 
that  they  want  the  railroads  controlled,  and  some  of  them  may  think  the  Constitutional 
Convention  ought  to  provide  for  it,  but  do  you  believe  the  great  mass  of  the  people  in 
this  Commonwealth  are  able  to  read  this  paper  and  understand  the  legal  effect  of  it? 
If  you  do,  you  have  a  higher  regard  for  the  intelligence  of  our  people  than  I  have, 
because  I  do  not  believe  there  are  any  people  on  the  face  of  this  earth  amongst  whom 
there  are  many  that  could  appreciate  the  effect  of  this  report. 

What  is  the  argument?  I  am  not  going  to  take  up  much  more  time.  I  simply 
thought  it  my  duty  to  point  out  this  danger,  I  will  leave  it  to  others  to  discuss  the  merits 
of  the  details  of  this  matter.  I  simply  want  to  state  briefly,  before  I  close,  what  I  con- 
ceive to  be  the  fallacy  of  claiming  that  the  Legislature  of  Virginia  has  turned  a  deaf 
ear  to  the  clamors  of  the  people  for  any  such  thing  as  this. 

Where  has  there  ever  been  any  popular  clamor  on  this  subject  injected  into  any 
canvass  for  the  Legislature?  I  should  like  for  any  gentleman  on  this  floor  to  answer 
me.  That  has  been  assumed  as  a  fact  here.  I  respectfully  submit  that  the  trouble  with 
our  Legislature  in  Virginia  has  been  not  that  it  does  not  respond  to  the  wishes  of  the 
people;  not  that  it  turns  down  proper  laws  and  pigeon-holes  them  in  committees,  but 
that  our  people,  politicians  as  they  are  in  the  sense  of  being  office-seekers,  do  not  take 
enough  interest  in  public  questions  to  make  them  issues  before  the  people.  I  believe 
every  man  on  this  floor  knows  that  such  is  the  fact.  When  was  there  ever  a  campaign 
in  Virginia  in  which  the  question  of  the  control  of  railroads  was  made  an  issue?  If 
there  ever  has  been  I  want  these  gentlemen  to  tell  me  about  it.  To  say,  because  the 
Legislature  has  not  as  yet  passed  a  stringent  law  putting  into  the  hands  of  three  men  the 
powers  of  all  three  branches  of  the  government,  that  it  will  not  yield  to  the  proper 
demands  of  the  people  as  to  control  of  corporations,  is  based  on  no  facts  within  our 
experience. 

They  comment  on  the  Mason  law.  Well,  if  that  law  be  defective — and  I  am  not 
going  to  argue  about  it;  I  do  not  care,  for  the  purposes  of  my  argument,  whether  it  is 
defective  or  not — why  did  not  my  friends  from  Northampton  (Mr.  Kendall)  and  my 
distinguished  friend  from  Manchester  (Mr.  Ingram),  who  could  certainly  have  reached 
the  ears  of  the  peorle  with  the  witchery  of  his  eloquence,  enter  into  former  legislative 
contests,  whether  they  ran  for  the  Legislature  or  not?  Why  did  they  bring  forward  that 
issue  and  say.  "I  will  not  vote  for  a  man  who  will  not  vote  for  this  measure,"  Not  one 
of  them  can  claim  they  have  ever  gone  around  in  this  State  trying  to  arouse  the  public 
sentiment  of  the  people  in  regard  to  this  matter;  and  yet  they  say  that  the  Legislature 
of  Virginia  will  not  give  them  what  they  want,  and  that  is  an  excuse  for  abandoning 
all  the  principles  of  constitutional  law  and  injecting  a  statute  twenty-six  pages  long 
into  our  Constitution.  If  I  know  anything,  I  believe  that  what  I  say  is  a  fact,  I  do  not 
believe  any  man  in  this  body  can  claim  that  this  question  has  been  the  subject  of  public 
agitation  here  in  Virginia,    It  certainly  was  not  when  this  body  was  elected. 

142 — Const.  Deb. 


2250 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  was  told  by  several  distinguished  members  of  this  body  when  I  first  came  down 
here  that  we  came  here  to  disfranchise  a  certain  race  and  to  cut  down  the  salaries  of 
a  few  officers,  and  try  to  reduce  expenses,  and  then  we  were  going  home.  The  first 
night  I  got  here  some  of  my  friend  said,  "Oh,  we  will  only  be  here  three  or  four  weeks," 
and  yet,  because  certain  committees  were  appointed  here,  every  committee  that  was 
appointed  with  a  big  name  to  it  got  an  idea  that  it  was  bound  to  do  something.  They 
did  not  like  to  come  in  here  and  report."  "We  will  not  advise  any  changes  in  the  Con- 
stitution in  this  regard."  I  think  some  of  them  would  have  decided  very  wisely  if  they 
had  acted  on  the  advice  that  a  distinguished  old  judge  once  gave  me  when  I  was  a 
young  man.  He  said  it  is  a  great  deal  better,  if  you  want  to  be  a  good,  honest  lawyer, 
to  know  how  not  to  bring  a  suit  than  how  to  bring  one.  I  think  if  this  body  had  been 
governed  by  the  same  idea,  if  it  had  known  how  not  to  do  anything  at  all  in  reference  to 
some  questions,  the  Convention  would  have  adjourned  long  ago  and  we  would  have  had 
something  for  the  people  to  vote  upon,  and  we  would  not  have  been  here  engaged  in 
academic  discussions  in  regard  to  everything  on  the  face  of  God's  earth,  and  some 
things  that  do  not  exist  at  all,  eimer  on  earth  or  in  heaven.  (Laughter.) 

Now,  gentlemen,  I  appeal  to  you  if  three-fourths  of  the  time  of  this  Convention  has 
not  been  taken  up  in  discussing  all  the  evils  in  this  Commonwealth,  from  the  commis- 
sioners of  the  revenue  up  to  this  question.  I  do  not  say  those  are  not  important  ques- 
tions, but  there  is  another  forum  for  many  of  these  questions.  We  have  been  discussing 
the  question  which  is  now  hung  up  in  mid-air  as  to  how  a  man  should  get  a  liquor 
license.  I  am  surprised  we  have  not  adopted  a  whole  code  of  police  laws  for  every  city 
in  the  commonwealth,  because  that  is  nothing  in  the  world  but  a  police  law.  Every- 
body knows  this.  But  we  are  told  we  must  do  here  what  we  say  the  Legislature  will  not 
do.  I  say  if  the  Legislature  will  not  pass  the  laws  the  people  need  and  require  it  is  the 
fault  of  the  people  themselves.  But,  certain  it  is,  they  did  not  send  us  here  to  this 
Convention  for  the  purpose  of  legislating.  Nothing  was  said  about  these  matters  before 
this  Convention  assembled.  Talk  about  what  the  people  want!  The  people  have  never 
voted  on  this  question.  You  do  not  know  what  they  want.  In  my  opinion  they  do  not 
know  themselves  what  they  want,  because  they  have  never  had  these  matters  intelli- 
gently discussed  before  them,  i  know  they  have  a  vague  desire  to  put  some  of  the 
corporations  under  control.  Some  merchant  who  has  shipped  goods  over  the  railroad 
may  be  as  mad  as  he  can  be  at  some  railroad  company  because  he  was  charged  fifteen 
cents  more  on  some  shipment  than  he  ought  to  have  been  charged;  but  I  venture  to 
assert  that  there  are  very  few  men  in  this  Commonwealth  that  know  how  far  the  powers 
of  this  commission  would  go,  if  we  adopt  it.  I  venture  to  say  that  comparatively  few 
of  them  know  that  the  interstate  commerce  in  this  country  is  probably  ninety-five  per 
cent,  of  the  commerce,  and  that  if  they  got  this  thing,  these  gentlemen  who  feel  so  sore 
about  their  fifteen  cents,  or  whatever  other  grievance  they  have,  could  not  get  the  relief 
through  this  commission  they  think  they  can  get;  because,  after  all,  the  vast  bulk  of  the 
business  of  this  country  is  bound  to  be  controlled  by  Congress.  These  railroads  run 
from  State  to  State,  and  most  of  the  business  is  interstate  commerce.  I  do  not  think 
anybody  would  have  the  hardihood  to  venture  to  get  up  in  the  Congress  of  the  United 
States  anu  propose  an  amendment  to  that  venerable  instrument,  putting  in  it  any  such 
provisions  as  are  in  this  report  with  reference  to  interstate  commerce. 

Do  you  believe  anyone  would  dare  to  do  any  such  thing?  Why,  gentlemen,  the 
great  strength  and  the  great  beauty  of  our  institutions  and  the  reason  they  have  been 
preserved  in  spite  of  the  fact  that  we  have  gone  through  the  terrible  arbitrament  of 
arms  in  civil  strife,  which  involved  the  very  continuance  of  this  Union  is  on  account  of 
the  simplicity,  the  generality  of  the  language  of  that  great  instrument  our  fathers  pre- 
pared when  this  government  was  founded.  Foreign  authors  who  have  read  our  great 
Constitution  have  said  it  is  the  greatest  work  that  ever  fell  from  the  pen  of  man. 
The  great  English  statesman,  Gladstone,  is  one  who  spoke  thus,  and  its  greatness  con- 
sists in  its  containing  only  general  and  fundamental  principles  and  not  going  into 
details. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2251 


Gentlemen,  the  Constitution  of  Virginia  of  1776  covered  only  five  small  printed 
pages,  and  none  of  the  Constitutions  which  we  have  adopted  since  then — not  even  the 
much-abused  Underwood  Constitution — has  ever  undertaken  to  go  into  such  minute 
legislative  details.  I  do  not  believe  any  of  them  is  much  longer  than  this  article  that 
is  presented  here. 

If  you  want  anything  like  this,  I  say  let  us  discuss  it  before  the  people;  let  us  have 
an  election  on  this  question;  let  us  have  a  fair  discussion  before  the  people.  Let  them 
come  here  and  introduce  their  bills  in  the  Legislature.  Let  us  get  the  best  law  we  can. 
I  will  assume,  for  the  sake  of  argument,  that  this  is  the  best  law  that  the  wisdom  of 
man  can  devise,  for  the  present.  If  it  be  so  let  us  get  it  through  the  Legislature,  but 
do  not,  I  pray  you,  fix  it  so  that  we  cannot  change  it  if  it  should  happen  to  develop 
defects  that  might  injure  the  highest  interests  of  the  people. 

I  have  the  greatest  respect  m  the  world  for  the  gentlemen  of  this  committee.  There 
is  not  one  of  them,  I  believe,  who  is  not  a  personal  friend  of  mine,  but  they  are  not  all 
wise  and  omniscient.  There  is  not  a  man  in  this  body  who  is  omniscient.  I  do  not  care 
to  go  into  details,  but  I  cannot  believe  that  this  report  is  such  a  perfect  instrument  that 
it  ought  to  be  ptit  into  our  fundamental  law  and  remain  there  until  it  is  changed  by  the 
dubious  method  of  a  constitutional  amendment. 

Gentlemen,  the  argument  for  this  is  practically  an  attack  upon  representative  gov- 
ernment in  this  country.  It  will  not  do.  I  cannot  understand  the  position  which  some 
of  my  friends  take  here.  Some  of  us  who  are  members  of  the  Committee  on  the  Legis- 
lative department  had  the  audacity  (as  some  of  these  gentlemen  seemed  to  think  it 
was)  to  suggest  that  the  Legislature  should  not  meet  every  two  years,  but  should  meet 
every  four  years,  and  there  came  up  a  great  wail — a  classic  wail — from  our  friend  from 
Manchester  (:\Ir.  Ingram)  that  we  were  going  to  deprive  the  people  of  the  power  they 
should  have  (laughter)  ;  and  yet  he  comes  here  and  advocates  a  measure  that  absolutely 
takes  out  of  the  power  of  the  people,  and  of  the  Legislature  they  elect,  the  right  to 
control  some  of  their  most  important  affairs,  absolutely  and  entirely.  They  cannot 
change  it  in  four  years;  they  cannot  change  it  in  one  hundred  years,  unless  there  be  an 
amendment  to  this  Constitution. 

Now,  gentlemen,  these  sorts  of  arguments  are  inconsistent.  AVe  were  turned  down 
on  that  proposition.  The  gentlemen  of  the  Convention  said  four  years  was  too  long. 
They  may  be  right.  I  do  not  claim  to  know  how  often  they  ought  to  be  elected.  I, 
myself,  thought  four  years  was  a  short  enough  time;  that  they  ought  to  wait  a  while 
before  they  changed  laws;  that  they  ought  to  find  out  what  the  laws  are  before  they 
change  them,  because  I  know  they  generally  do  not  find  out  before  they  change  them. 
(Laughter.)  Btit  however  that  may  be,  I  do  not  believe  that  this  Convention  ought  to 
invade  the  province  of  the  Legislature  and  absolutely  prohibit  it  from  changing  our 
laws  in  the  manner  in  which  these  people  are  seeking  to  change  them.  It  is  an  attack 
upon  representative  government. 

They  say  we  cannot  point  out  any  instance,  except  that  they  did  not  give  the  labor- 
ing man  the  fellow  servants'  law.  I  want  to  say,  in  passing,  that  I  have  always  been 
in  favor  of  a  fair  fellow  servants'  law.  I  have  so  stated  publicly  and  I  state  it  here 
now.  I  think  if  there  is  any  one  thing  our  Court  of  Appeals  has  done  to  injure  the 
corporations  of  the  State,  it  is  its  tendency  to  go  too  far  in  favor  of  the  corporations. 
I  think  it  has  produced  a  great  deal  of  prejudice  against  corporations.  I  am  in  favor 
of  a  fair  law  that  will  protect  the  lives  of  the  men  who  go  out  upon  that  dangerous 
work.  They  cite  that  as  an  instance  that  the  Legislature  will  not  give  them  what  they 
want.  Well,  gentlemen,  you  cannot  produce  changes  in  some  great  fundamental  prin- 
ciple of  the  law  in  a  year  or  two  years.  You  have  to  fight  for  what  you  want  in  this 
government.  It  is  the  survival  of  the  fittest  here,  as  it  is  everywnere  else.  Here  are 
conflicting  interests.  Intrests  on  both  sides  have  to  be  looked  at.  and  because  a  law  is 
turned  down  by  three  or  four  Legislatures,  are  we  to  throw  up  our  hands  in  despair 
and  say  our  Legislatures  will  not  give  us  what  we  want,  and  therefore  when  we  come 


2252 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


down  here  to  disfranchise  the  negro  and  do  other  things  we  will  take  advantage  of  being 
here  to  pass  all  kinds  of  laws  that  the  Legislature  will  not  pass. 

That  is  exactly  the  attitude  we  are  adopting  here.  These  gentlemen,  in  eloquent 
appeal,  say:  "Now  is  the  time.  We  have  a  terrible  fight  on  our  hands.  We  have  got 
these  people  where  the  wool  is  short,  and  we  are  going  to  give  them  a  dressing  up. 
The  Legislature  does  not  do  it,  and  they  never  do  it."  I  absolutely  deny  that  is  true. 
I  believe  the  people  of  Virginia  control  their  own  affairs.  I  do  not  subscribe  to  the  sen- 
timent that  the  corporations  control  this  great  people.  It  is  a  cowardly  plea,  I  say,  to 
proclaim  that  the  people  of  this  great  Commonwealth,  who,  as  the  gentlemen  said,  have 
always  been  radical,  who  have  never  been  afraid  to  do  what  they  thought  to  be  right 
for  their  true  interests,  are  dominated  and  controlled  by  any  men  or  set  of  men  for 
their  own  selfish  purposes.  They  may  thwart  them  for  a  time,  but  that  is  all.  I  ven- 
ture to  say  that  if  my  distinguished  friend  from  Augusta  (Mr.  Braxton),  my  distin- 
guished friend  from  Manchester  (Mr.  Ingram),  or  my  distinguished  friend  from  North- 
ampton (Mr.  Kendall),  will  take  the  trouble  to  go  over  this  Commonwealth  and  talk 
to  the  people  as  they  have  been  doing  here,  the  people  will  rise  in  their  might  and  majesty 
and  demand  of  their  representatives  that  they  give  them  the  laws  they  should  have. 
To  think  otherwise  is  to  write  the  word  failure  upon  our  form  of  government,  to  say 
that  this  government  does  not  suit  the  needs  of  the  people.  That  view  of  the  matter 
will  not  do.  Congress  has  heeded  certain  of  the  demands  of  the  people.  It  has  pro- 
vided an  Interstate  Commerce  Commission  with  great  powers;  and  because  it  does  not 
change  the  powers  of  that  commission  every  time  the  commission  asks  for  it,  is  no 
argument  that  its  powers  will  not  be  changed  when  the  people  become  properly  roused. 

No,  gentlemen,  there  are  two  sides  to  this  question.  I  do  not  intend  to  go  into  the 
merits  of  this  law  now.  When  it  comes  up  in  detail  I  may  have  something  to  say  about 
some  of  these  matters,  although  I  do  not  know  that  I  will.  But  there  are  two  sides  to 
it.  The  people  may  get  hoisted  by  their  own  petard  by  putting  this  report  in  the  Con- 
stitution. They  may  not  get  the  control  of  the  corporations  that  they  seek  or  ought  to 
get;  and,  on  the  other  hand,  in  your  desire  to  protect  your  own  interests,  you  may 
oppress  the  people  who,  whether  they  have  done  wrong  or  not,  are  at  least  entitled  to 
justice.  Even  the  poorest  negro  that  stands  in  the  dock  accused  of  felony,  as  guilty  and 
as  black  morally  as  he  is  outwardly,  is  protected  by  our  laws  and  is  given  a  fair  trial 
and  a  fair  hearing,  and  every  presumption  is  made  in  his  favor.  Are  we  to  say  that  out 
of  prejudice,  out  of  passion,  out  of  wrongs,  if  there  be  such,  committed  by  the  railroad 
companies,  we  are  going  to  make  an  attack  upon  the  capital  of  the  country  and  put 
the  attack  in  a  permanent  form,  so  that,  however  injurious  it  may  be,  we  cannot  change 
it  for  years  to  come? 

Certainly  those  are  weighty  considerations  with  me,  and  I  do  not  see  how  they  can 
keep  from  being  so  with  you.  These  gentlemen  may  argue  as  much  as  they  choose 
about  what  they  meant  by  this  thing.  The  man  who  draws  an  instrument  is  never  the 
man  to  construe  it.  The  courts  all  say  that.  The  man  who  prepares  a  contract  thinks 
he  has  said  all  he  wants  to  say,  and  yet  very  often  that  is  not  the  case.  He  is  the  last 
man  to  construe  it;  and  however  good  the  intentions  of  these  gentlemen  may  be,  I 
submit  you  cannot  trust  to  the  language  that  is  used.  Are  we  on  the  one  hand  to  tie 
the  hands  of  the  people  so  that  they  cannot  get  the  relief  they  want,  and  on  the  other, 
to  drive  out  and  oppress  the  capital  of  this  State? 

Now,  gentlemen,  in  closing,  let  me  call  your  attention  to  one  fact.  Of  course  you 
all  know  it,  but  we  very  often  forget  it.  A  great  many  people  have  an  idea  that  a 
corporation  partakes  very  little  of  what  concerns  humanity,  that  there  are  no  human 
beings  connected  with  it  at  all.  As  I  said  just  now,  it  is  thought  by  many  to  be  some 
kind  of  tremendous  engine  which  can  be  used  for  the  destruction  of  the  rights  of  the 
people.  And  yet  the  chief  difference  between  a  corporation  and  an  individual,  and  be- 
tween a  corporation  and  a  partnership,  is  that  of  limited  liability.  The  stock  of  these 
companies  is  owned  by  human  beings;  their  bonds  are  owned  by  individuals.  Now,  I 
grant  you  these  quasi  public  corporations  have  to-day  certain  public  powers  given  them. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA. 


^253 


They  have  the  power  of  eminent  domain;  and  for  that  reason  the  courts  have  held  that 
the  public  has  a  right  to  control  them.  They  are  engaged  in  public  work,  and  they 
constitute  public  highways.  But  there  are  two  sides  to  that  matter.  They  are  not 
altogether  public.  They  are  spoken  of  as  quasi  public.  The  State,  because  it  cannot 
perform  certain  things  itself,  has  given  these  people  certain  powers;  but,  after  all,  a 
railroad  is  a  private  corporation.  The  money  that  builds  the  road  is  the  money  of 
private  individuals.  The  bonds  upon  which  they  borrow  money  are  held  by  individuals. 
Now,  is  there  any  man  within  the  sound  of  my  voice,  whatever  he  thinks  about  the 
operations  of  these  companies,  however  much  trouble  he  has  had  about  getting  proper 
rates,  who  will  undertake  to  say  that  he  wants  to  do  anything  to  injure  the  interests 
of  those  private  individuals,  who  own  those  bonds  and  that  stock?  Does  he  want  to 
practically  make  that  kind  of  investment  worthless,  and  prevent  people  in  the  future 
from  making  investments?  If  so,  he  not  only  injures  the  private  individuals  who  have 
already  invested  their  money,  but  he  prevents  this  State  of  ours  from  developing  as  it 
should  develop.  These  gentlemen  who  want  to  appeal  to  the  low  ignorance  and  prejudice 
of  the  unthinking  man  may  say  as  much  as  they  choose:  'Tf  capital  does  not  want  to 
come  here,  let  it  stay  out;"  but,  gentlemen,  it  does  seem  to  me  the  conservative  patriot, 
the  man  who  wants  to  subserve  the  true  interests  of  this  old  Commonwealth  of  ours,  is 
the  man  who,  without  oppressing  other  people  in  their  rights,  is  engaged  in  the  great 
work  of  developing  the  resources  of  the  Commonwealth. 

The  old  order  has  passed  away  and  the  new  order  has  taken  its  place.  The  old 
patriarchal  life  of  our  people  is  gone  like  a  dream,  never  to  come  back.  We  have  to 
take  our  places  in  the  ranks  of  the  commercial  States  of  the  Union;  and  you,  gentlemen, 
know  just  as  well  as  I  do  that  if  you  pass  any  permanent  inimical  legislation  here,  the 
people  who  have  money  to  put  it  into  these  things  will  put  it  into  some  other  State 
where  they  will  not  be  afraid  of  their  investments  being  impaired  in  value  or  destroyed. 
That  is  common  sense.  Nobody  who  has  money  is  fool  enough  to  build  railroads  in 
Virginia  when  he  sees  that  the  people,  by  their  best  representatives — the  men  who  have 
been  lauded  up  to  the  skies  as  being  superior  to  the  Legislature — are  willing  to  come 
here  and  put  into  their  permanent  law  something  that  is  bound  to  hamper,  cripple  and 
probably  bankrupt  every  great  railroad  corporation  in  the  State.  If  it  does  not  do  that, 
and  I  hope  fo  God  it  will  not  do  it,  and  I  hope,  too,  that  what  the  newspapers  say  is  not 
the  fact,  that  this  report  is  cerainly  going  through.  I  say,  if  this  article  does  not  bank- 
rupt those  companies  that  are  already  here,  it  may  so  seriously  injure  them  that  people 
outside  of  Virginia  who  have  money  and  who  would  be  willing  to  invest  it  here  and  help 
to  build  up  our  waste  places,  will  prefer  to  put  their  money  somewhere  else  where  they 
may  look  for  welcome  and  protection. 

These  gentlemen  may  think  I  am  exaggerating.  They  may  think  the  fact  that  I 
have  a  railroad  pass  in  my  pocket  actuates  me  in  what  I  say.  I  do  not  care  who  knows 
I  have  that  railroad  pass  in  my  pocket.  I  say  it  boldly  and  openly  that  I  have  it,  and  I 
believe  a  great  many  other  gentlemen  haA^e  them  also.  (Laughter.)  But  I  say  a  rail- 
road pass  cannot  buy  my  opinion,  and  I  do  not  believe  it  can  buy  those  of  any  other  man. 
I  frankly  admit  that  we  may  have  a  more  kindly  feeling  toward  railroads  because  we 
are  connected  with  them.  I  think  any  man  is  apt  to  have  a  kindly  feeling  toward  the 
man  who  employs  him;  but  you  must  recollect  that  the  unkind  feelings  that  some  of 
these  gentlemen  manifest  by  their  action— though  they  deny  them,  and  I  believe  they 
deny  them  honestly— are  probably  produced  by  the  fact  that  they  have  not  a  pass  and 
do  not  draw  a  salary  from  a  railroad,  (Laughter)  or  to  the  fact  that  they  have  been 
placed  in  some  position  of  antagonism.  I  do  not  believe  any  man  here  is  consciously 
actuated  by  such  considerations.  I  want  to  say  for  myself  that  I  have  voted  here  time 
and  again  for  things  that  I  knew  the  railroad  companies  considered  inimical  to  their 
interests.  I  voted  with  my  friend  from  Staunton  for  a  majority  verdict  of  juries  instead 
of  retaining  the  old  system  of  juries.  I  believe  that  proposition  was  successfully  fought, 
and  the  old  unanimous  verdict  was  retained;  and  I  think  most  of  the  people  who  are 
largely  interested  in  railroads  were  glad  that  my  friend  from  Staunton  was  defeated. 


2254 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


A  hung  jury  is  a  very  good  thing  for  a  railroad  company  in  the  present  state  of  popular 
prejudice.  But  I  do  not  believe  any  of  us  ought  to  be  actuated  by  any  such  thing.  We 
ought  not  to  talk  that  sort  of  scandal  right  here  amongst  ourselves.  (Laughter.) 
What  I  say  I  want  you  to  answer  in  substance.  Do  not  turn  it  dow^n  because  you  think 
a  man  is  interested  in  the  railroads.  The  only  interest  I  have  in  them  on  God's  earth 
is  to  defend  a  railroad  company  when  it  is  sued  in  court.  I  have  no  other  interest  in  it. 
They  never  consult  me  about  their  politics,  if  they  have  any,  or  about  anything  else,  but 
I  go  before  a  jury  and  defend  them;  and  I  will  say  here  that  I  have  a  great  many  Repub- 
lican clients,  and  yet  that  has  never  for  a  moment  made  me  think  of  becoming  a  Repub- 
lican. 

We  have  to  answer  the  argument  that  either  side  makes,  and  not  allow  prejudice, 
not  allow  the  personal  equation,  to  dominate  us  here,  because  if  we  do  we  will  be  going 
blindly  in  the  dark. 

I  am  sorry  that  I  have  taken  up  so  much  time,  and  that  I  have  been  so  rambling  in 
my  remarks;  but  I  feel  deeply  on  this  qestion,  and  I  hope  that  nothing  that  I  have  said 
has  indicated  even  in  the  slightest  degree,  that  I  think  the  men  who  have  spoken 
against  the  railroad  companies  are  actuated  by  any  improper  motives.  I  do  not  believe 
they  are;  but  all  I  ask  for  the  people  who  speak  in  favor  of  keeping  this  legislative 
enactment  out  of  the  Constitution  is  that  you  shall  throw  over  us  also  the  mantle  of 
charity  and  answer  our  arguments  instead  of  criticizing  us.    (Great  applause.) 

Mr.  Stebbins:  Mr.  Chairman  and  gentlemen  of  the  committee,  as  is  well  known  to 
all  of  you,  I  am  not  accustomed  to  expressing  myself  upon  my  feet,  and  to  addressing 
bodies  of  this  character.  Interruptions  are  annoymg  and  embarrassing  to  me,  and 
might  have  the  effect  of  throwing  me  off  the  line  of  my  argument;  and  I  ask  this  body 
that  they  will  extend  me  the  courtesy  not  to  interrupt  me  while  I  am  speaking. 

Mr.  Chairman,  my  limitations  in  this  debate  have  already  been  fixed  by  my  esteemed 
friend,  the  gentleman  from  Fauquier  (Mr.  Hunton).  He  has  reminded  me  and  the  other 
lay  members  of  the  Committee  on  Corporations,  that  we  are  not  capable  of  understand- 
ing the  force  and  effect  of  the  terms  used  in  this  report.  I  accept  the  suggestion,  and 
will  not  discuss  the  legal  phases  of  the  question,  but  will  present  it  simply  as  it  occurs 
to  a  practical  business  man. 

My  friend  from  Fauquier  with  one  hand  throws  us  bouquets,  while,  on  the  other 
hand,  he  commiserates  us  on  our  incapacity  to  appreciate  the  full  import  of  the  lan- 
guage used.  I  do  not  like  to  have  him  throw  me  bouquets  without  returning  the  com- 
pliment— at  least  in  kind — and  I  will  say  that,  with  his  splendid  intellect,  and  with  the 
patriotic  motives  that  inspire  his  conduct,  if  he  knew  the  practical  workings  of  the 
railroads  from  an  intimate  connection  and  dealing  with  them  in  their  freight  depart- 
ment, or  in  their  department  of  business,  rather  than  by  deriving  theoretical  knowledge 
from  the  head  of  a  department  in  a  fourth-story  office,  and  if  he  were  a  business  man, 
instead  of  a  lawyer,  he  would  cast  his  talents  and  his  high  patriotic  motives  on  the  side 
of  the  majority  report  of  this  committee. 

Mr.  Chairman,  I  was  impressed,  long  before  I  came  to  this  Convention,  with  the 
importance — aye,  the  dire  necessity — of  placing  some  regulating  hand  upon  corpora- 
tions. It  is  a  question  that  every  thinking  man  has  had  to  face  in  the  past  few  years. 
I  have  seen  these  great  amalgamations  of  capital,  those  great  combinations  of  interests 
going  on  around  us,  and  have  realized  that  unless  some  restraining  hand  was  placed 
upon  them  the  people  would  suffer  from  their  cast.  When  I  came  to  this  Convention 
and  was  appointed  on  the  Committee  of  Permanent  Organization,  one  of  the  things  that 
I  proposed,  and  the  proposition  came  from  me  alone,  and  was  insisted  upon  by  me,  was 
that  there  should  be  a  standing  committee  of  this  Convention  on  corporations,  to  deal 
specifically  with  the  subject,  and  that  it  should  not  be  relegated  as  a  side-show  to  some 
other  committee  of  this  Convention. 

That  same  feeling  has  inspired  me  in  the  transactions  of  this  committee  through  the 
long  weary  months  that  we  have  labored,  and  indulged  in  research  and  investigation. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIRGINIA. 


2255 


that  we  might  devise  a  scheme  of  dealing  with  corporations  that  would  not  be  injurious 
to  them  in  the  least,  and,  at  the  same  time,  would  protect  the  interests  of  the  people. 
My  esteemed  friend  from  Fauquier,  in  his  admirable  address  on  Wednesday,  appealed  to 
the  conservatism  and  statesmanship  of  Virginia  not  to  put  this  into  the  organic  law. 
He  says:  "Let  us  consider  for  a  moment  the  issues  with  which  we  are  faced.  It  is 
proposed  to  place  in  the  Constitution  of  conservative  Virginia — a  State  which  has  here- 
tofore been  a  leader  in  thought,  a  leader  in  conservatism,  a  leader  in  statesmanship — 
into  its  organic  law  a  principle  and  a  measure  that  exists  in  the  Constitutions  of  but  two 
States  in  this  Union.  It  must  indeed  be  remarkable  conditions  which  justify  the  ex- 
pectation that  this  State  will  follow  such  a  course." 

Gentlemen,  it  is  utterly  astounding  to  me  that,  when  any  action  out  of  the  old  ruts 
is  proposed,  which  will  advance  the  highest  interests  of  the  people,  its  opponents  ring 
the  changes  on  conservatism  and  statesmanship.  Their  idea  of  conservatism  and 
statesmanship  is  to  fold  their  hands  and  let  well  enough  alone.  Conservatism  can  be 
carried  to  such  an  extent  as  to  amount  to  inaction,  inertia,  decay  and  death.  Conserva- 
tism is  worn  threadbare  in  Virginia.  I  believe  in  conservatism — a  broad,  intelligent, 
liberal,  progressive  conservatism.  Not  that  antiquated,  fossilized  conservatism  which 
rejects  everything  however  meritorious,  because  it  is  new  and  fears  to  take  a  step 
because  the  path  has  not  been  beaten  smooth  beforehand.  The  conservatism  which 
Virginia  wants  is  that  which  can  grasp  conditions,  measure  effect  from  cause,  project 
itself  into  the  future,  take  advantage  of  strategic  positions  and  control  all  public 
agencies  so  that  they  will  promote  her  fullest  development  and  insure  the  greatest 
prosperity  and  happiness  of  her  people.  Too  long  has  Virginia  been  held  back  by  her 
ultra-conservatism,  been  a  laggard  in  the  race,  until  all  her  sister  States  have  outdis- 
tanced her.  It  is  time  for  her  to  awake  from  this  lethargy,  burst  the  manacles  of  con- 
servatism, so  called,  which  have  bound  her  down  so  long  and  by  modern  method  of 
thought,  action  and  legislation  enter  the  lists  and  align  herself  with  the  progressive 
States  of  the  Union. 

I  have,  gentlemen,  heard  our  sister  State  of  North  Carolina  frequently  sneeringly 
referred  to.  We  do  not  need  the  Constitution  of  North  Carolina  for  Virginia,  we  do  not 
need  her  system  of  courts  or  her  system  of  county  government,  but  I  tell  you,  gentlemen, 
we  can  learn  many  lessons  of  thrift  and  industry  from  the  people  of  North  Carolina.  It 
is  a  State  without  any  large  cities,  with  only  one  seaport,  and  that  an  unimportant  one. 
It  has  no  great  trunk  lines  of  railway,  with  their  terminals,  on  her  coast.  And  yet  I 
believe  it  has  two  or  three  times  as  many  small  towns  of  from  one  to  ten  thousand 
inhabitants  as  has  the  State  of  Virginia,  and  each  one  of  these  is  a  center  of  industry 
and  thrift.  I  believe  that  the  people  of  North  Carolina — and  I  say  this  advisedly,  be- 
cause I  live  near  that  State  and  have  constant  business  intercourse  with  the  people  of 
that  State — that  her  people  are  far  more  generally  thrifty  than  the  people  of  Virginia. 
What  I  save  said  of  North  Carolina  will  apply  equally  to  the  States  of  South  Carolina 
and  Georgia.  These  are  the  States,  south  of  us,  that  have  these  much-dreaded  railroad 
or  corporation  commissions,  with  all  this  power.  I  do  not  contend  that  the  existence 
of  corporation  commissions  in  these  States  is  the  cause  of  all  this  prosperity;  but  it 
clearly  demonstrates  that  their  existence  have  certainly  not  retarded  it. 

We  cannot,  Mr.  Chairman,  doubt  that  they  have  been  instrumental,  to  some  extent, 
in  creating  this  state  of  affairs,  by  giving  to  the  small  manufacturers  throughout  the 
State  reasonable  rates  on  their  raw  materials  and  supplies  and  also  on  their  manufac- 
tured products  to  market. 

The  question  is  asked  whether  there  is  a  demand  in  Virginia  for  commission  with 
such  powers.  I  have  here  resolutions  and  letters  from  all  the  boards  of  trade  in  the 
State  of  Virginia  asking  for  this  commission,  and,  in  addition,  the  members  of  this  com- 
mittee, and  I  have  no  doubt  the  members  of  this  Convention,  generally,  are  receiving 
private  letters  every  day  urging  the  adoption  of  this  majority  report. 

Mr.  Dunaway:    Will  the  gentleman  mention  some  of  them? 


2256  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTIOX  OF  VIEGIXIA. 

Mr.  Stebbins:  Here  is  one  from  the  city  of  Petersburg.  Here  is  one  from  the  city 
of  Staunton  and  one  from  the  city  of  Norfolk.  Here  is  one  from  the  city  of  Richmond, 
one  from  the  city  of  Lynchburg,  one  from  the  city  of  Bristol,  one  from  the  business 
Men's  Association  of  the  city  of  Danville.  Then  here  is  one  from  the  Traveler's  Pro- 
tective Association  of  Richmond,  urging  the  same  thing;  and  last,  but  not  least,  I  have 
a  paper  in  my  desk  from  the  business  men  of  the  town  of  South  Boston,  the  most  pro- 
gressive town  of  its  size  in  the  State  of  Virginia,  asking  for  the  same  thing. 

These  chambers  of  commerce  in  the  various  cities  of  the  State  maintain,  at  great 
cost  to  themselves,  traffic  bureaus.  They  employ  in  those  traffic  bureaus  men  who  have 
been  connected  with  the  freight  departments  of  the  railroads  and  are  familiar  with 
rates.  Why  is  this?  Why  is  this?  Why  do  they  go  to  all  this  trouble  and  expense? 
It  is  because  they  want  some  one  familiar  with  rates  and  classification,  who  can  state, 
and  state  advisedly,  whenever  their  city  is  being  discriminated  against,  in  order  that 
they  can  take  such  measures  as'  may  seem  advisable  to  in  duce  the  railroads  to  remove 
the  discrimination.  If  these  things  do  not  exist,  if  these  discriminations  do  not  exist, 
there  would  be  no  use  of  having  traffic  bureaus.  The  traffic  bureau  is  the  effect  of 
these  constant  discriminations.  Are  the  business  men  of  these  cities,  who  compose  the 
membership  of  these  associations,  through  whose  instrumentalities  these  memorials 
have  been  sent  here,  men  of  large  affairs,  directing  the  financial,  commercial  and  manu- 
facturing interests  of  the  State,  radical  and  Poplistic?  Will  any  gentleman  arise  on 
this  floor  and  say  that  this  large  class  of  our  most  intelligent  business  men,  the  men 
who  feel  the  pinch  of  the  shoe,  are  radical  and  Populistic?  Do  they  not  know  what 
they  are  talking  about?  Are  they  not  as  sensitive  as  any  one  else  to  anything  that 
would  injure  the  State,  because  the  result  would  fall  on  them  as  heavily  as  on  any 
other  class  of  people?  These,  gentlemen,  are  the  men  who  have  been  and  are  now 
developing  the  resources  of  the  State,  promoting  our  enterprise,  sending  abroad  our 
products  in  their  crude  and  manufactured  state  to  the  marts  of  the  world,  and  who, 
gathering  the  wealth  thus  obtained  from  their  bold  emprise,  bring  it  and  lay  it  at  the 
feet  of  their  mother — Virginia.  It  will  not  do  for  gentlemen  on  this  floor,  when  memo- 
rials from  some  of  the  cities  of  this  Commonwealth  are  mentioned,  to  sneeringly  remark, 
"A  city  with  a  grievance."  Why,  sirs,  the  grievance  is  as  universal  as  the  limits  of  the 
Commonwealth.    It  is  confined  to  no  town  and  no  section. 

Gentlemen  of  the  committee,  I  believe  it  is  recognized  by  all  who  have  taken  part 
in  this  debate,  those  who  favor  the  minority  as  well  as  those  who  favor  the  majority 
report,  that  there  should  be  some  regulation  of  these  common  carriers,  and  the  only 
question  between  -gentlemen  who  differ  here,  is  as  to  the  extent  to  which  that  control 
shall  go.  It  is  said  that  we  have  a  railroad  commission  in  Virginia,  but  I  have  been  told 
that  the  commissioner,  himself,  says  that  he  is  powerless  to  do  anything.  One  case,  and 
only  one,  which  went  up  to  the  Court  of  Appeals  is  relied  on  to  show  that  the  commis- 
sion has  the  power  to  enforce  its  mandate  against  the  railroad  companies.  I  do  not 
know  how  many  years  it  has  been  in  existence,  but  this  is  the  only  case  that  we  have 
any  record  of  where  its  mandate  was  enforced  by  the  court.  I  have  understood  that  its 
powers  were  merely  supervisory  and  recommendatory.  I  have  been  an  active  business 
man  in  Virginia  for  thirty-one  years,  beginning  before  I  was  twenty-one  years  old.  I 
have  daily  transactions  with  the  railroad  companies,  and  necessarily  I  sometimes  have 
grievances.  But  it  has  never  occurred  to  me  in  my  life  to  make  a  complaint  to  the  Rail- 
road Commission  of  Virginia  until  at  one  time  I  stated  my  grievance  to  the  gentleman 
from  Fauquier,  and  he  reminded  me  that  the  Railroad  Commission  of  Virginia  could 
deal  with  it.  I  filed  a  complaint  some  months  ago,  and  the  commissioner  informs  me 
that  he  wrote  to  companies  involved  and  they  promised  some  time  to  come  and  see  him 
in  regard  to  it.  Now  he  has  summoned  them  here,  and  he  says  they  will  heed  the 
summons  and  come  down  and  talk  to  him  about  it.  But  if  it  had  not  been  suggested 
to  me  by  my  friend  I  would  have  hardly  known  that  we  had  a  railroad  commissioner  in 
Virginia,  so  far  as  his  utility  is  concerned.  ^ 


DEBATES  Of  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA.  2257 

Mr.  Cliairman,  if  we  take  the  report  of  the  railroad  commissioner  for  1900,  in  his 
summary  to  the  Genera]  Assembly,  we  will  see  there  the  confession  of  his  utter  inability 
to  do  anything.    He  says,  on  the  question  9f  rates: 

There  has  been  a  general  raising  of  rates  in  Virginia  in  the  past  year.  In  most 
cases  it  has  been  done  by  raising  the  classitication,  a  matter  about  which  the  average 
shipper  knows  very  little.  The  peculiar  situation  of  our  roads  afford  a  great  deal  of 
protecting  for  the  shipper,  our  lines  being  mainly  on  the  great  through  route 
north  and  south  and  east  and  west.  There  have  been  some  eases  of  extreme  hardships, 
which  I  have  not  found  means  of  correcting. 

Nature  has  done  a  great  deal  for  us,  but  the  railroad  commissioner  has  been  able 
to  do  very  little.  Our  geographical  position,  and  our  having  several  trunk  lines  run- 
ning through  the  State,  has  done  a  great  deal,  but  the  railroad  commissioner  has  done 
very  little.  He  acknowledges  that  rates  have  been  raised,  not  by  raising  the  tariff, 
but  by  that  system  peculiar  to  the  railroads,  by  which  the  people  cannot  learn  that 
rates  have  been  raised.  For  instance,  an  article  in  the  second  class  can  be  put  in  the 
first,  and  one  that  is  in  the  fourth  class  can  be  put  in  the  third.  When  the  shipper 
pays  his  freight  bill  he  finds  that  he  is  paying  more  on  a  certain  article  than  he  paid 
before.  He  goes  to  the  agent  and  says :  "  You  have  raised  your  rates."  The  agent 
.says,  "  No;  our  tariff  is  just  the  same  as  it  has  been  for  two  years." 

The  commissioner  acknowledges  that  there  have  been  great  hardships  which  he 
has  found  no  means  of  correcting.  Now,  there  should  be  some  means  of  correcting 
these  hardships. 

Let  me  call  your  attention  to  the  question  as  to  the  efficiency  of  this  commission. 
We  have  a  statute  providing  that  the  maximum  rate  on  fertilizer  shall  be  4  cents  per 
ton,  2,240  pounds,  per  mile;  and  that  the  minimum  rate  shall  be  for  10  miles.  I  do  not 
know  how  long  this  statute  has  been  on  our  statute  books,  but  it  is  there.  If  you  will 
examine  the  rates  for  fertilizers  for  the  different  railroads,  you  will  find  that  they 
have  been  violating  the  law  for  all  short  distances,  up  to  about  30  miles,  for  years. 
Whether  it  has  ever  come  to  the  knowledge  of  the  railroad  commissioner  or  not  I  am 
unable  to  say.  Take,  for  instance,  Bon  Air,  on  the  Southern  railroad,  eight  miles  from 
Richmond.  The  rate  is  ?1  per  ton;  the  rate  fixed  by  statute  should  not  be  more  than 
36  cents,  and  the  difference,  which  is  an  overchange  is  64  cents.  Take  Moseley's,  20 
miles  from  Richmond,  and  the  rate  is  ?1.20  per  ton;  the  maximum  rate  fixed  by  law 
is  76  cents,  and  the  overcharge  is  44  cents.  Take  Churchland,  9  miles  from  Norfolk, 
the  rate  is  70  cents;  the  maximum  rate  fixed  by  law  is  36  cents,  and  the  overcharge 
is  34  cents. 

Now,  let  us  take  the  Chesapeake  and  Ohio  road.  To  Elko,  14  miles,  the  rate  is 
90  cents;  the  maximum  rate  fixed  by  law  is  51  cents,  and  the  overcharge  is  39  cents. 
Take  Weilkham,  a  distance  of  21  miles,  and  the  rate  is  $1.20;  the  maximum  rate  fixed 
by  law  is  78  cents,  and  the  overcharge  42  cents.  Take  Lorraine,  12  miles,  and  the  rate 
is  90  cents,  the  maximum  rate  fixed  by  law  is  44  cents,  and  the  overcharge  46  cents. 
Take  Burgess,  on  the  Seaboard  Air  Line,  a  small  station  31  miles  from  Richmond,  the 
rate  is  $1.70  per  ton;  the  maximum  rate  fixed  by  law  is  $1.12,  and  the  overcharge  is 
58  cents.  Now,  Burgess  is  S  miles  from  Petersburg;  the  rate  there  is  $1,  while  the 
maximum  rate  fixed  by  law  is  36,  a  difference  of  64  cents. 

Here  is  a  rather  curious  thing  I  discovered  in  investigating  these  fertilizer  rates. 
There  is  a  little  station  12  miles  this  side  of  Norfolk  called  Drivers.  I  think  it  is  on 
the  Atlantic  Coast  Line.  I  do  not  know  what  distance  it  is  from  Richmond.  The 
freight  rate  on  fertilizers  from  here  to  Drivers  is  $3  per  ton,  and  the  freight  to  Norfolk, 
12  miles  beyond,  in  car-load  rates,  is  75  cents  per  ton.  It  is  a  dollar  from  here  to 
Norfolk  in  less  than  car-load  lots.  Now,  if  a  man  lives  in  Drivers  and  should  hny  his 
fertilizer  in  Richmond,  he  can  save  half  his  freight  by  shipping  it  to  Norfolk  and  then 
shipping  it  back  to  Drivers. 

So  far  as  my  investigations  have  gone  the  Norfolk  and  Western  Railroad  has 


2258 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


observed  the  legal  tariff,  I  now  want  to  tell  you  a  little  secret.  I  will  Let  you  mto> 
my  confidence  as  to  a  matter  I  discovered  after  1  had  made  up  these  rates.  Although 
the  Chesapeake  and  Ohio  and  the  Southern  railway  were  charging  these  rates  on  July 
20,  1901,  the  Chesapeake  and  Ohio  put  in  a  new  tariff  which  conforms  exactly  to  the 
law,  and  in  October  of  last  year  the  Southern  road  put  into  operation  a  new  tariff  that 
conforms  exactly  to  the  law.  I  do  not  know,  gentlemen,  whether  any  significance 
attaches  to  it  or  not;  but  at  the  time  the  new  tariff  was  made,  a  Constitutional  Con- 
vention was  in  session  in  the  city  of  Richmond  and  a  corporation  committee  was  at 
work. 

I  want  to  talk  to  you  a  little  now  on  the  coal  situation.  We  have  only  two  coal 
carrying  roads  in  Virginia  of  any  consequence — the  Norfolk  and  Western  and  the  Chesa- 
peake and  Ohio.  The  Norfolk  and  Western,  I  believe,  mines  a  great  deal  of  its  coal 
in  Virginia,  but  runs  it  around  through  a  little  corner  of  West  Virginia  and  back  into 
Virginia,  which  possibly  may  make  it  interstate.  The  Chesapeake  and  Ohio,  as  we  all 
know,  gets  its  coal  from  West  Virginia.  Up  to  1899  both  of  these  roads  had  the  same 
freight  traffic  on  coal  to  Richmond,  Petersburg  and  Norfolk.  But  not  very  long  ago, 
and  since  this  great  "  community  of  interest "  plan  has  been  in  operation,  the  Chesa- 
peake and  Ohio  put  a  tariff  on  coal  to  Richmond  which  is  25  cents  a  ton  less  than  the 
Norfolk  and  Western  rate.  The  Norfolk  and  Western  carries  coal  to  Petersburg  and 
Norfolk  for  25  cents  per  ton  less  than  the  Chesapeake  and  Ohio.  So  we  see  the  beauti- 
ful w^orking  of  this  "  community  of  interest "  principle,  in  dividing  up  the  territory 
of  the  State  between  themselves — an  act  is  restraint  of  trade.  If  a  citizen  of  Richmond 
wants  to  use  Pocahontas  coal  he  can  have  it,  but  he  must  pay  25  cents  a  ton  more  for 
it  than  he  does  for  Kanawha  splint,  and  vice  versa,  if  a  citizen  of  Norfolk  and  Peters- 
burg wants  to  use  Kanav/ha  splint  he  must  pay  25  cents  more  a  ton  for  it  than  he  does 
for  Pocahontas.  But  that  is  not  all.  The  Chesapeake  and  Ohio  coal  costs  in  Richmond 
to-day  78  cents  a  ton  more  than  it  did,  and  Norfolk  and  Western  costs  $1.03  more  per 
ton  than  it  did.  A  part  of  this  advance  comes  from  the  advance  in  freight  rates  and  a 
part  of  it  is  an  advance  in  the  price  of  coal.  ^Vhat  effect  does  that  have  on  the  coal 
miner?  He  has  no  choice  of  markets.  If  he  is  on  the  Chesapeake  and  Ohio  road  he 
has  to  sell  the  coal  in  a  market  that  they  have  picked  out  for  him,  and  if  he  is  on  the 
Norfolk  and  Western  he  has  to  do  the  same  thing. 

Mr.  Chairman,  I  want  to  call  your  especial  attention  to  this  because  it  is  a  very 
important  matter.  A  case  similiar  to  this  arose  in  the  great  State  of  Georgia  about 
1891,  and  how  did  the  commission  deal  with  it?  It  was  interstate  commerce,  and  they 
had  no  power  over  interstate  commerce.  The  railroads  coming  into  Georgia  determined 
to  raise  the  freight  rates  25  cents  per  ton  on  coal  from  Tennessee.  The  commission 
cited  them  before  it,  and  the  Hon.  L.  N.  Trammell,  who  was  chairman  of  the  com- 
mission at  the  time,  made  this  address  to  the  railway  authorities: 

You  have  been  invited  to  meet  the  commission  in  consultation  because  of  the  ad- 
vance made  in  the  interstate  coal  rate. 

In  the  revision  and  adjustment  of  the  local  rates  made  by  the  commission  last  year 
we  spared  no  time  nor  labor  to  arrive  at  a  proper  conclusion  as  to  what  would  be 
renumerative  to  the  roads  and  just  to  people.  As  evidence  of  the  fairness  and  cor- 
rectness of  our  deliberations  and  the  rates  made,  we  have  but  little  or  no  complaint 
from  the  people,  and  the  evidence  declared  by  the  leading  roads  in  the  State  the  present 
year  demonstrate,  beyond  a  doubt,  that  these  rates  were  not  only  just  but  liberal  to 
them. 

The  change  of  the  interstate  coal  rate  which  the  roads  have  made  since  this  revision 
raises  the  price  of  transportation  on  an  average  of  about  25  cents  per  ton  on  all  coal 
consumed  in  this  State,  which  has  caused  a  protest  to  come  up  from  the  press  and  the 
people  that  challenge  the  attention  of  this  board  and  demand  of  it  all  the  relief  it  can 
give  the  country  by  exercising  the  powers  w^hich  the  law  has  placed  in  its  hands  for  the 
protection  of  the  people  against  extortions  and  unjust  and  unreasonable  charges  upon 
freight. 

The  policy  of  the  commission  has  been  to  allow  the  railroads  of  the  State  a  reason- 
able dividend  after  paying  their  fixed  charges  and  all  other  legal  and  just  demands 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGINIA. 


2259 


against  them,  and  in  making  the  present  local  rates  we  based  their  earnings  on  the 
local  rates,  and  the  interstate  rates  as  the  latter  were  at  that  time,  but  this  change  of 
interstate  rates  on  coal  has  destroyed  the  balance  established  by  the  commission  and 
turned  the  scale  largely  on  the  side  of  the  railroads  and  heavily  against  the  people. 
As  this  basis,  upon  which  the  estimates  were  made  in  establishing  the  present  local 
rates,  has  been  changed,  I  must  state  frankly  that,  for  this  commission  to  be  consistent, 
it  wall,  if  the  roads  insist  on  their  present  interstate  rates  on  coal,  thereby  destroying 
the  basis  upon  which  the  local  rates  were  made,  consider  it  to  be  their  imperative  duty 
to  so  readjust  their  rates  as  to  prevent  the  roads  from  getting  more  than  we  think  they 
are  justly  entitled  to.  To  do  this  it  will  be  necessary  to  take  as  much  from  the  local 
rates  as  has  been  added  to  the  interstate  rates.  This  is  not  a  proposition  looking  to, 
or  to  be  considered  in  a  spirit  of  retaliation,  but  for  the  purpose  of  enforcing  a  just  and 
reasonable  rate,  and  maintaining  the  balance  heretofore  set  up  by  the  commission  as 
just  and  reasonable  to  the  people  and  the  roads. 

It  is  not  only  necessary  for  the  protection  of  the  people,  but  it  becomes  absolutely 
necessary  for  the  future  protection  and  welfare  of  the  shareholders  of  the  railroads  that 
the  commission  should  pursue  this  course  when  the  interstate  rates  threaten  to  imperil, 
to  the  extent  that  the  rates  now  under  discussion  do,  the  manufacturing  interests  of 
this  country,  and  it  requires  no  argument  from  me  to  show  that,  while  the  roads  may 
increase  their  revenues  by  such  a  policy  for  the  present,  they  will  be  largely  the  losers 
in  the  future  by  crippling  the  great  and  growing  manufacturing  interests  of  this  coun- 
try', which  is  dependent,  more  than  any  one  thing  else,  upon  cheap  rates  on  coal. 

It  is  proper  that  I  should  add  that,  upon  investigation,  the  commission  find  the 
local  rates  on  coal  too  high,  and  that  they  should  be  reduced. 

The  result  of  that  little  speech,  delivered  by  Mr.  Trammell,  was  that  the  advance 
in  interstate  rates  was  rescinded  and  the  original  rate  restored,  as  is  shown  by  a  letter 
from  Mr.  Thomas  H.  Carter,  then  commissioner  of  the  Southern  Railway  and  Steam- 
ship Association. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

ELECTIVE  FRANCHISE,  Etc. 

Mr.  Barbour: — I  desire  simply  to  introduce  a  substitute  for  the  report  of  the  Com- 
mittee on  the  Elective  Franchise,  etc.,  and  ask  that  it  lie  on  the  table  and  be  printed. 
It  -was  so  ordered. 

On  motion  of  Mr.  James  W.  Gordon  the  Convention  adjourned  until  to-morrow, 
Saturday,  February  S,  1902,  at  10  o'clock  A.  M. 


SATURDAY,  February  8,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 

Prayer  by  Rev.  Edwin  B.  Snead,  of  Richmond,  Virginia. 

On  motion  of  Mr.  Braxton  the  Convention  now  resolved  itself  into  Committee  of 
the  Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations. 
Mr.  Keezell  in  the  chair. 

Mr.  Stebbins: — Mr.  Chairman  and  gentlemen  of  the  committee,  I  regret  very  much 
that  the  arrival  of  the  hour  for  adjournment  yesterday  prevented  me  from  concluding 
my  remarks  at  that  time,  and  in  resuming  this  morning  I  desire  to  thank  the  committee 
for  the  patient  hearing  which  they  gave  me  and  to  assure  them  that  I  will  not  detain 
them  but  a  short  time  to-daj^ 

I  endeavored  to  show  on  yesterday  that  it  was  a  mistaken  conservatism  that  would 
reject  everything  because  it  is  new  and  refuse  all  proposed  reforms  because  they  were 
untried  in  our  midst.  I  endeavored  to  show  that  there  was  a  demand  for  a  railroad 
commission,  with  ample  power  to  deal  with  the  questions  that  might  come  before  it 
and  to  stand  as  a  tribunal  between  the  people  and  the  railroads,  I  showed  you  that  this 
demand  came  from  the  business  interests  of  Virginia,  represented  through  the  various 
chambers  of  commerce  and  boards  of  trade  of  the  cities  of  the  State;  that  it  came  from 
men  actively  engaged  in  the  commerce  and  manufactures  of  the  State,  men  who 
have  the  highest  interests  of  the  State  at  heart,  and  men  who  would  be  most  seriously 
affected  by  any  action  on  our  part  which  might  be  detrimental  to  the  interests  of  the 


2260  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

State.  I  endeavored  to  show  that  this  demand  also  arose  from  the  fact  that  the  present 
commission  which  we  have  is  utterly  inefficient,  as  acknowledged  by  the  commissioner 
himself  in  his  last  report  to  the  General  Assembly.  I  also  endeavored  to  show  that 
for  years  the  railroads  have  been  violating  the  statute  law  of  Virginia  in  regard  to  the 
maximum  rates  of  freight  on  fertilizers  for  short  distances,  and  I  endeavored  to  show 
the  effect  of  the  "  community  of  interest "  plan  upon  the  coal  trade  of  Virginia  at 
the  present  time.  I  stated  that  up  to  a  short  time  ago  the  Chesapeake  and  Ohio  and  the 
Norfolk  and  Western  railways,  the  only  two  coal-carrying  roads  in  the  State,  had  the 
same  rate  of  freight  to  the  cities  of  Richmond,  Petersburg  and  Norfolk,  but  that 
recently  they  have  divided  this  territory  among  themselves,  the  Chesapeake  and  Ohio 
taking  Richmond  and  the  Norfolk  and  Western  taking  Petersburg  and  Norfolk —  the 
Norfolk  and  Western  charging  25  cents  per  ton  more  for  carrying  coal  to  Richmond 
than  the  Chesapeake  and  Ohio  and  the  Chesapeake  and  Ohio  charging  25  cents  more 
per  ton  on  coal  to  Petersburg  and  Norfolk  than  the  Norfolk  and  Western.  I  showed 
you  that  the  dealers  of  Richmond  are  paying  to-day  an  advance  of  78  cents  on  the 
Chesapeake  and  Ohio's  and  $1.03  on  Norfolk  and  Western  coal,  part  of  which  is  an 
increased  rate  in  freight  and  .part  of  which  is  an  advanced  price  of  coal,  and  that  the 
coal  operator  has  no  choice  of  markets,  but  must  submit  to  this  arbitrary  ruling  of  the 
companies.    This,  gentlemen,  is  where  I  left  off  in  my  remarks  on  yesterday. 

Now,  I  will  take  up  the  matter  of  cattle  shipments  from  Southwest  Virginia  to  the 
Seaboard.  We  are  all  aware  that  this  is  one  of  the  largest  industries  of  that  thriving 
section  of  the  State — the  raising  of  cattle  for  the  foreign  markets.  The  rate  on  cattle 
per  carload  from  Chicago  by  the  Chesapeake  and  Ohio  road  is  $50  per  car.  From 
Kentucky  points  it  ranges  from  $43  to  $50  per  car  to  Newport  News.  By  the  Norfolk 
and  Western,  from  Chicago  to  Norfolk  it  is  $54  per  car.  The  rate  from  Southwest 
Virginia  points  west  of  Salem  on  the  Norfolk  and  Western  railroad  is  the  same  as  from 
Chicago  to  Norfolk — $54;  but  the  foreign  steamers  that  take  these  cattle  to  Europe  do 
not  touch  at  Norfolk,  and  Norfolk  is  not  the  point  on  the  coast  that  the  shipper  desires 
to  reach.  Therefore  if  the  Southwest  Virginia  cattle  raiser  should  wish  to  ship  to 
Newport  News  he  must  be  subjected  to  the  rate  of  $68  per  car,  or  $18  more  than  the 
Chicago  and  Kentucky  shipper  pays,  and  $14  more  than  if  he  shipped  his  cattle  to 
Norfolk.  The  explanation,  as  I  understand,  which  is  given  for  this  is  to  be  found  in 
the  fact  that  the  cattle  must  be  tranferred  from  one  road  to  another.  For  instance, 
the  shipper  from  Southwest  Virginia  to  Newport  News  must  ship  Sirst  to  Lynchburg 
and  there  transfer  to  the  Chesapeake  and  Ohio  road.  The  rate  to  Lynchburg  being  $41 
per  car  and  from  Lynchburg  to  Newport  News  $27  per  car.  But  we  must  recollect  also 
that  the  shipper  from  Chicago  to  Newport  News  must  make  several  transfers  instead 
of  one,  and  it  does  seem  that  that  is  a  manifest  discrimination  against  the  cattle  raiser 
of  Southwest  Virginia. 

I  will  now  take  up  the  table  of  rates,  as  submitted  by  the  gentleman  from  Fauquier 
(Mr.  Hunton)  on  Wednesday.  The  idea  of  the  gentleman  was  to  prove  that  while  Vir- 
ginia had  no  railroad  commission,  and  the  States  south  of  Virginia  did  have  commis- 
sions with  these  powers,  that  Virginia  has  all  the  time,  and  at  the  present  time,  had 
cheaper  rates  of  local  freight  than  those  States.  We  all  remember  how  he  said  he  could 
show  that  Georgia  had  higher  rates  than  Virginia — Georgia,  the  inspiration  of  the 
gentleman  from  Augusta  (Mr.  Braxton),  had  higher  rates  than  Virginia!  How  North 
Carolina,  the  model  of  the  gentleman  from  Danville  (Mr.  Withers)  had  higher  rates 
than  Virginia. 

Now,  I  have  gone  carefully  over  this  matter  and  have  a  copy  of  his  table  here,  which 
shows  the  rates  on  the  Chesapeake  and  Ohio  railroad  as  of  1901.  These  rates  he  dis- 
claims any  responsibility  for,  claiming  that  they  were  furnished  to  him  by  Mr.  G.  W. 
Stevens,  president  of  the  Chesapeake  and  Ohio  railroad,  and  that  they  are  practically 
the  same  rates  that  are  in  effect  on  the  other  railroads  of  the  State. 

Mr.  Chairman,  I  wish  to  say  that  a  comparison  of  the  classified  rates — that  is. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGINIA. 


2261 


those  rates,  first,  second,  third,  fourth  and  fifth  class,  and  so  on,  as  distinguished  from 
commodity  rates — of  the  Chesapeake  and  Ohio  railroad,  cannot  be  made  with  classified 
rates  in  the  States  south  of  Virginia,  for  the  reason  that  the  Chesapeake  and  Ohio  rail- 
road uses  the  official  classification  and  the  States  south  of  Virginia  use  what  is  known 
as  the  southern  classification,  between  which  classifications  there  are  great  difierences. 
For  instance,  an  article  may  be  designated  in  the  official  classification  as  fourth  class, 
and  in  the  southern  classification  it  may  be  called  third  class  or  fifth  class;  and  those 
Inequalities  run  through  these  different  classifications.  In  order  to  make  any  com- 
parison of  the  classified  rates  with  those  of  the  States  south  of  Virginia,  it  must  be 
made  with  some  railroad  in  Virginia  which  uses  the  southern  classification.  Therefore, 
I  have  chosen  the  Southern  railway,  which  uses  the  southern  classification,  and  which 
also  has  lines  of  road  with  the  same  classification  in  the  States  south  of  us. 

Another  misleading  statement  is  that  in  which  the -rates  of  the  Chesapeake  and  Ohio 
railway  are  used.  The  gentleman  from  Fauquier  has  been  made  to  use  the  rates  of 
the  railroad  having  the  lowest  rates  in  the  State  of  Virginia;  a  railroad  which  also  has 
the  reputation  of  being  one  of  the  lowest  rate  railroads  in  the  country;  and  if  we  will 
make  an  examination  and  comparison  of  their  tariff  rates  with  the  various  other  rail- 
roads of  the  State  we  will  see  at  a  glance  that  they  are  not  practically  the  same  rates 
as  those  of  the  other  roads  of  the  State. 

Now,  gentlemen,  I  do  not  mean  to  charge  that  any  one  has  intentionally  made  any 
misstatement,  but  I  suppose  the  gentlemen  who  tabulated  these  rates  are  men  who  are 
exceedingly  busy  and  did  not  take  the  time  to  investigate  the  matter  thoroughly,  per- 
haps thinking  they  were  practically  the  same  rates  that  prevailed  on  the  other  roads  in 
the  State.  But  let  us  see.  The  Southern  railway  seems  to  have  two  sets  of  rates,  one 
applying  to  that  portion  of  the  road  between  Alexandria  and  Danville,  which  is  prac- 
tically the  same  as  the  Chesapeake  and  Ohio;  that  set  of  rates  applying  to  the  portion 
of  the  road  from  West  Point  to  Danville  and  from  Norfolk  to  Danville  being  consider- 
ably higher.  Now,  in  making  my  comparison  of  rates  in  Virginia,  North  Carolina  and 
Georgia,  I  shall  take  the  rates  on  the  lines  of  the  Southern  railway  from  Norfolk  to 
Danville  and  from  West  Point  to  Danville. 

Let  us  see  the  differences,  as  they  exist. 

For  10  miles  on  the  Chesapeake  and  Ohio  railroad,  the  rates  first-class  is  16  cents; 
second  class,  12  cents;  third  class,  10  cents;  fourth  class,  8  cents;  fifth  class,  6  cents; 
sixth  class,  4  cents,  per  hundred  pounds. 

For  10  miles  on  the  Southern  railway,  from  Alexandria  to  Danville,  being  nearly 
the  same:  First  class,  16  cents;  second  class,  13  cents;  third  class,  11  cents;  fourth 
class,  9  cents;  fifth  class,  7  cents;  sixth  class,  6  cents,  per  hundred  pounds. 

For  10  miles  on  the  road  from  West  Point  to  Danville  and  from  Norfolk  to  Danville 
the  rates  are:  First  class,  21  cents;  second  class,  17  cents;  third  class,  15  cents;  fourth 
class,  12  cents;  fifth  class,  10  cents;  sixth  class,  8  cents,  per  hundred  pounds. 

I  will  now  turn  to  the  50-mile  distance  and  w^e  will  see  the  same  thing  running  all 
through. 

On  the  Chesapeake  and  Ohio  road,  for  the  50-mile  distance,  the  rates  are:  First 
class,  28  cents;  second  class,  22  cents;  third  class,  18  cents;  fourth  class,  13  cents;  fifth 
class,  10  cents;  sixth  class,  6  cents,  per  hundred  pounds. 

On  the  Southern  railway,  between  Alexandria  and  Danville,  the  rates  are:  First 
class,  30  cents;  second  class,  24  cents,  third  class,  19  cents;  fourth  class,  16  cents;  fifth 
class,  14  cents;  sixth  class,  10  cents,  per  hundred  pounds. 

On  the  Southern  railway,  between  West  Point  and  Danville  and  Norfolk  and  Dan- 
ville, the  rates  are:  First  class,  42  cents;  second  class,  38  cents;  third  class,  33  cents; 
fourth  class,  24  cents;  fifth  class,  21  cents;  sixth  class,  16  cents,  per  hundred  pounds. 

I  omitted,  when  I  was  directing  your  attention  to  the  other  table  of  rates,  to 
mention  the  rates  in  North  Carolina  and  Georgia,  which  I  will  take  up.  In  North 
Carolina  the  rates,  for  a  distance  of  10  miles  are:    First  class,  18  cents;  second  class. 


2262 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


13  cents;  third  class,  11  cents;  fourth  class,  9  cents,  fifth  class,  8  cents;  sixth  class,  7 
cents,  per  hundred  pounds. 

In  Georgia,  for  the  same  distance,  the  rates  are:  First  class,  20  cents;  second  class, 
18  cents;  third  class,  16  cents;  fourth  class,  13  cents;  fifth  class,  11  cents;  sixth  class, 
10  cents,  per  hundred  pounds. 

In  those  States,  North  Carolina  and  Georgia,  for  a  distance  of  fifty  miles,  the  rates 

are: 

In  North  Carolina:  First  class,  36  cents;  second  class,  28  cents;  third  class,  24 
cents;  fourth  class,  20  cents;  fifth  class,  15  cents;  sixth  class,  12  cents. 

In  Georgia  the  rates  are:  First  class,  38  cents,  second  class,  34  cents;  third  class, 
31  cents;  fourth  class,  28  cents;  fifth  class,  23  cents;  sixth  class,  16  cents. 

I  will  now  pass  from  the  classified  rates,  although  I  could  give  other  instances, 
from  five  miles  up  to  300  miles;  but  I  do  not  care  to  burden  you  with  figures,  involved 
in  a  comparison  of  the  commodity  rates. 

Mr.  O'FIaherty:    What  do  you  refer  to  when  you  speak  of  "commodity  rates"? 

Mr.  Stebbins:    I  mean  the  rates  on  such  articles  as  bacon,  flour,  corn,  hay,  lumber, 

etc. 

In  making  this  comparison  of  the  commodity  rates,  I  wish  to  say  that  the  Ches- 
apeake and  Ohio  has  a  carload  rate  and  a  rate  for  less  than  carload  lots — the  car- 
load rate,  of  course,  being  lower  than  the  one  for  less  than  carload  lots.  All  of  the  roads 
south  of  Virginia  have  but  one  rate,  which  applies  to  both  carload  and  less  than  carload 
lots,  irrespective  of  quantity.  The  figures  used  by  the  gentleman  from  Fauquier  were 
the  carload  rates,  and  by  an  error  in  the  stenographic  report,  it  said  they  were  less 
than  carload  rates.  When  I  made  up  my  statement,  thinking  that  he  had  fallen  into  the 
error  of  using  carload  rates  Vv^hen  he  intended  to  use  less  than  carload  rates,  I  made  my 
figures  on  less  than  carload  rates,  also  stating  the  rate  which  he  had  mentioned,  which 
are  the  carload  rates. 

Mr.  Hunton:  Do  you  mean  to  make  that  statement  as  to  the  tables  used  by  me, 
of  your  own  knowledge?  You  have  made  a  very  broad  statement  about  the  figures  in 
the  table  used  by  me.  Now,  I  ask  if  you  make  that  statement  of  fact  upon  your  own 
knowledge,  or  upon  information  derived  from  others? 

Mr,  Stebbins:  Well,  it  is  both  from  information  derived  from  others  and  from 
an  examination  of  the  table  on  my  part. 

Mr.  Hunton:  I  ask  the  question,  because  I  do  not  know  of  my  own  knowledge; 
but  from  the  information  that  I  have  received,  the  facts  are  very  different  from  those 
which  you  have  stated. 

Mr.  Stebbins:  In  what  respect?  I  should  be  very  glad  to  set  myself  right  if  I 
have  made  a  misstatement. 

Mr.  Hunton:  In  this  respect — I  expect  to  have  the  information  in  a  more  definite 
shape  soon — but  in  this  respect,  as  I  understand.  I  will  give  it  more  definitely,  of 
course,  when  I  get  it  more  fully.  The  commodity  rates  in  the  figures  given 
by  me  in  the  comparison  of  the  Chesapeake  and  Ohio  rates  were  carload 
rates  in  Virginia,  and  in  North  Carolina,  South  Carolina  and  Georgia.  In  the 
classified  rates  as  to  the  fifth  and  sixth  classes,  I  believe,  and  the  fourth — 'I  will  not 
undertake  to  be  accurate — but  in  the  first,  second  and  third  they  were  carload  rates, 
and  less  than  carload  rates,  both  in  Virginia  and  in  those  three  States.  And  those  rates 
embraced  the  articles  in  common  use  and  common  transportation  in  Virginia  as  well 
as  in  those  States — namely,  dry  goods  and  those  articles  that  were  named  by  me  when 
I  referred  to  the  table;  so  that  as  to  the  first,  second  and  third  classes,  as  I  understand 
it,  the  comparison  was  on  the  carload  and  less  than  carload  lots  in  all  four  States. 

Mr.  Stebbins:    The  classified  rates? 

Mr.  Hunton:  I  did  not  say  that.  I  say,  as  to  the  classified  rates  of  the  first,  second 
and  third  classes,  they  were  as  to  carload  and  less  than  carload  lots  in  all  four  States. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2263 


But  as  to  commodity  articles  in  carload  lots,  tlie  rates  in  all  four  States  are  the  same. 
Tiiat  is  my  information. 

Mr.  Stebbins:  I  think  I  can  make  myself  clear,  and  it  is  certainly  my  intention  to 
be  exactly  and  perfectly  fair. 

]Mr.  Hunton:  The  gentleman  from  Pittsylvania  (Mr.  Withers)  suggested  to  me 
that  very  question  on  yesterday  privately.  At  once  I  went  to  the  same  source  from 
which  I  had  gotten  my  information.  If  that  information  had  been  misleading  to  this 
house,  or  had  been  in  corroboration  of  my  position,  in  either  event,  I  should  have  given 
it  to  the  house.  If  it  had  been  misleading  I  should  have  been  extremely  and  excessively 
annoyed.  My  information,  however,  is  that  the  basis  of  comparison  is  practically  the 
same,  that  upon  the  goods  enumerated — dry  goods,  boots,  shoes,  sugar,  molasses — it 
is  identical,  and  that  as  to  the  commoditj'  rates,  that  they  were  for  carload  lots  in  both 
cases.  As  soon  as  my  friend  suggested  that,  as  I  say,  I  went  to  the  source  from  which 
I  had  derived  my  information,  and  I  expect  to  get  it  in  a  more  definite  form  than  I 
have  presented  it  at  this  moment, 

Mr.  Stebbins:  Did  I  understand  you  to  say  that  the  classified  rates  were  for  car- 
loads and  less  than  carloads?  Of  course,  they  have  no  separate  rates  for  carloads  and 
less  than  carloads. 

Mr.  Hunton:  I  cannot  undertake  to  deal  technically  with  language  in  this  mat- 
ter, because  I  am  not  familiar  with  the  technique  of  rates;  but  I  mean  to  say  this,  that 
upon  the  commodity  rates — rates  upon  grain,  flour,  etc. — it  was  for  carload  lots  in  all 
four  States,  and  upon  the  classified  rate  in  classes  1,  2  and  3  they  were  for  carload  lots 
and  less  than  carload  lots  in  all  four  States,  and,  therefore,  were  a  proper  basis  for 
comparison.  The  classified  rates,  as  I  understand  of  the  first,  second  and  third  classes, 
embrace  the  items  of  general  traffic  within  the  borders  of  Virginia,  such  as  dry  goods, 
boots,  shoes,  sugar,  molasses,  etc.  The  rates  in  the  fourth,  fifth  and  sixth  class  I  do 
not  think  were  for  less  than  carload  lots  in  Virginia,  but  they  were  as  to  articles  that 
fall  in  the  fourth,  fifth  and  sixth  classes  that  are  not  of  usual  or  large  transportation 
in  Virginia,  as  I  understand. 

Mr.  Stebbins:  I  will  say  to  the  gentleman,  that  as  far  as  my  information  and 
experience  goes,  classified  rates  always  apply  to  any  qllantit3^  That  there  is  no  dif- 
ference between  a  carload  and  less  than  a  carload  in  those  classified  rates.  I  will  also 
say  that  I  am  still  of  the  opinion,  from  the  best  information  that  I  have  been  able  to 
obtain,  and  if  the  gentleman's  information  is  different,  I  will  very  cheerfully  acknow- 
ledge my  error  when  he  brings  it  in — that  in  the  States  south  of  Virginia  they  do  not 
have  but  one  rate  for  carloads  and  less  than  carloads. 

I  think  if  the  gentleman  will  go  to  his  table,  and  to  the  gentleman  from  whom  he 
got  his  information,  he  will  find  that  the  rates  on  the  Chesapeake  and  Ohio  are  car- 
load rates  and  the  rates  for  the  other  States  are  either  carload  rates  or  less  lhan  car- 
load rates,  for  they  have  but  one  rate. 

Mr.  Hunton:  I  have  already  gone  to  the  gentleman  from  vrhom  I  got  my  informa- 
tion, and  my  information  is  that  that  is  not  correct.  I  asked  them  to  put  it  in  the 
shape  of  a  letter,  so  that  I  might  give  it  in  that  more  certain  form,  rather  than  to  depend 
upon  uncertain  human  recollection.  I  have  not  received  the  letter,  but  I  have  just  sent 
to  my  office  to  see  whether  it  has  been  received  there. 

Mr.  Stebbins:  Now  Mr.  Chairman,  I  will  reserve  the  right,  if  I  desire  to  do  so, 
to  print  this  whole  table.  I  am  not  going  to  burden  you  with  any  more  figures  than 
I  can  help.  I  am  simply  going  to  take  the  distances  and  the  commodities  that  the 
gentleman  from  Fauquier  used  in  his  illustration  on  Wednesdaj^  As  I  stated  previously, 
having  discovered  in  an  examination  of  his  speech,  that  he  said  he  was  using  less  than 
carload  rates,  I  found  that  he  was  actually  using  carload  rates,  and  I  inserted  under 
the  head  of  the  correct  rates,  the  less  than  carload  rates  on  the  Chesapeake  and  Ohio. 
Whenever  I  use  that  term  "  the  correct  rate,"  I  hope  the  committee  will  understand 
that  it  means  less  than  carload  rates  by  the  Chesapeake  and  Ohio  tariff.    I  think  fur- 


2264  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


ther  that  the  comparison  is  just  between  less  than  carload  rates  on  the  Chesapeake  and 
Ohio  and  the  rates  that  prevail  in  the  South,  which  apply  irrespective  of  quantity,  be- 
cause the  great  mass  of  local  shippers  ship  in  less  quantities  than  carloads.  It  is  only 
the  large  wholesale  merchants  who  receive  any  commodity  in  carload  lots,  and  that 
generally  from  beyond  the  borders  of  the  State,  which  is  interstate  commerce. 

The  gentleman  from  Fauquier  stated  the  rates  on  bacon  to  be  8  cents  for  10  miles 
in  Virginia  and  9  cents  in  Georgia.  On  the  Southern  railway,  for  the  same  distance, 
the  rates  in  Virginia  are  9  cents  and  in  North  Carolina  6  cents. 

For  50  miles  he  stated  the  rate  in  Virginia  to  be  13  cents  and  in  Georgia  14  cents. 
The  Southern  railway  rate  in  Virginia  is  16  cents  and  in  North  Carolina  12  cents. 

For  100  miles  he  stated  the  rate  in  Virginia  to  be  18  cents  and  in  Georgia  20  cents. 
For  the  same  distance  the  Southern  railway  rate  in  Virginia  is  21  cents  and  in  North 
Carolina  17  cents. 

For  140  miles  he  states  the  rate  in  Virginia  to  be  21  cents  and  in  Georgia  24  cents. 
The  Southern  railway  rate  in  Virginia  is  21  cents  and  in  North  Carolina  19  cents.  He 
states  the  rate  for  200  miles  to  be  in  Virginia  24  cents  and  in  Georgia  30  cents.  The 
Southern  railway  rate  in  Virginia  is  23  cents  and  in  North  Carolina  22  cents. 

For  250  miles  he  states  the  rate  in  Virginia  to  be  24  cents  and  in  Georgia  33  cents. 
The  rate  of  the  Southern  railway  in  Virginia  is  25  cents  and  in  North  Carolina  24  cents. 

It  will,  therefore,  be  seen  that  the  rates  in  North  Carolina  are  lower,  in  all  instances 
named,  up  to  and  including  200  miles,  while  for  250  miles  the  rate  in  North  Carolina 
is  no  higher  than  the  Virginia  rate.  On  this  commodity  the  Southern  railway  rates 
in  Virginia  are,  for  nearly  all  of  the  distances,  higher  than  the  Chesapeake  and  Ohio 
rates  in  Virginia,  and  up  to  the  distance  of  100  miles  they  are  higher  than  the  Georgia 
rate. 

The  next  item  referred  to  by  the  gentleman  from  Fauquier  is  flour.  He  states  that 
the  rate  for  ten  miles  in  Virginia  is  4  cents  and  in  Georgia  5  3-4  cents.  The  correct 
rate  in  Virginia — and  mark  you,  I  call  your  attention  again  to  the  fact  that  whenever 
I  use  that  term  it  means  the  less  than  carload  rates  on  the  Chesapeake  and  Ohio  rail- 
road— is  6  cents,  while  the  Southern  railway  rate  is  8  cents,  and  the  rate  in  North  Caro- 
lina G  cents. 

Mr.  Hunton:  Do  I  understand  the  gentleman  to  say  that  the  rate  given  here  by  the 
Chesapeake  and  Ohio  of  4  cents  on  flour  for  10  miles  is  not  correct? 

Mr.  Stebbins:  I  say  that  is  the  carload  rate,  and  I  am  giving  the  less  than  carload 
rate.  I  have  prepared  this  statement  after  reading  his  speech,  in  which  there  is  a  mis- 
take in  the  stenographic  report.  I  have  explicitly  stated  to  the  committee  that  I  wanted 
them  to  understand  that  where  I  use  the  term  "  correct  rate  "  I  mean  less  than  carload 
rates. 

Mr.  Hunton:  These  are  the  carload  rates  on  the  Chesapeake  and  Ohio  road  in 
Georgia,  South  Carolina  and  North  Carolina,  as  *I  am  informed. 

Mr.  Stebbins:  It  is  very  hard  for  me  to  satisfy  the  gentleman.  I  had  distinctly 
stated  to  him  that,  so  far  as  my  information  goes,  they  have  but  one  rate  south  of  Vir- 
ginia, irrespective  of  quantity.  When  he  gets  his  information,  if  it  differs  from  mine, 
I  said  I  would  get  up  on  this  floor  and  disclaim  everything  I  have  said  in  that  particu- 
lar. I  have  tried  to  be  very  plain  and  explicit  in  regard  to  this  matter,  but  it  seems 
very  hard  for  us  to  understand  each  other. 

For  50  miles  he  states  the  rate  in  Virginia  to  be  G  cents,  which  is  the  carload  rate, 
and  in  Georgia  8  3-4  cents;  while  the  correct  rate — and  again  I  say  by  the  "correct 
rate  "  I  mean  the  less  than  carload  rate  on  the  Chesapeake  and  Ohio — is  10  cents  in 
Virginia.  The  Southern  railway  rate  in  Virginia  is  14  cents  and  in  North  Carolina  11 
cents. 

For  100  miles  he  states  the  rate  in  Virginia  to  be  10  cents  and  in  Georgia  11  1-2 
cents,  while  the  correct  rate  in  Virginia — hj  which  I  mean,  gentlemen,  the  less  than 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXa.IOX  OF  VIRGIXnA. 


2265 


carload  rate  of  the  Chesapeake  and  Ohio — is  16  cents,  and  the  Southern  railway  rate 
in  Virginia  18  cents  and  in  North  Carolina  14  cents. 

For  140  miles  he  states  the  rate  in  Virginia  to  be  12  cents  and  in  Georgia  13  cents. 
The  correct  rate — and  I  hope  by  this  time  the  committee  will  understand  what  I  mean 
when  I  use  that  term — is  17  cents,  while  the  Southern  railway  rate  in  Virginia  is  18 
and  in  North  Carolina  16  cents. 

For  200  miles  he  states  the  rate  in  Virginia  to  be  15  cents  and  in  Georgia  16i  cents; 
while  the  correct  rate — and  I  hope  the  committee  understands  what  I  mean  by  that — 
in  Virginia  is  18  cents  and  in  Georgia  16  cents,  the  Southern  railway  rate  in  Georgia 
being  19  cents  and  in  North  Carolina  19  cents. 

For  250  miles  he  states  the  rate  in  Virginia  to  be  15  cents  and  in  Georgia  19  cents. 
The  correct  rate  in  Virginia  is  IS  cents,  and  the  Southern  railway  rate  in  Virginia  is 
21  cents  and  in  North  Carolina  22  cents. 

The  gentleman  from  Fauquier  next  refers  to  the  rates  in  grain.  I  wish  to  distinctly 
state  to  the  committee  that  I  shall  use  the  same  term,  "  the  correct  rate,"  which  means 
less  than  carload  rates  on  the  Chesapeake  and  Ohio.  For  10  miles  he  states  the  rate  to 
be  4  cents  and  in  Georgia  5  cents.  The  correct  rate  in  Virginia  is  6  cents,  while  the 
Southern  railway  rate  in  Virginia  is  7  cents  and  in  North  Carolina  5  cents. 

For  50  miles  he  states  the  rate  in  Virginia  to  be  6  cents  and  in  Georgia  8  cents. 
The  correct  rate  in  Virginia  is  10  cents,  while  the  Southern  railway  rate  in  Virginia  is 
12  cents  and  in  North  Carolina  9  cents. 

For  100  miles  he  states  the  rate  in  Virginia  to  be  10  cents  and  in  Georgia  11  cents. 
The  correct  rate  in  Virginia  is  16  cents,  while  the  Southern  railway  rate  in  Georgia  is 
10  cents  and  in  North  Carolina  12  cents. 

For  140  miles  he  states  the  rate  in  Virginia  to  be  12  cents  and  in  Georgia  13  cents. 
The  correct  rate  in  Virginia  is  17  cents,  while  the  Southern  railway  rate  in  Virginia 
is  15  cents  and  in  North  Carolina  14  cents. 

For  200  miles  he  states  the  rate  in  Virginia  to  be  15  cents  and  in  Georgia  15i  cents. 
The  correct  rate  in  Virginia  is  18  cents,  and  the  Southern  railway  rate  in  Virginia  is 

18  cents  and  in  North  Carolina  16  cents. 

For  250  miles  he  states  the  rate  in  Virginia  to  be  15  cents  and  in  Georgia  IS  cents. 
The  correct  rate  in  Virginia  is  IS  cents,  while  the  Southern  railway  rate  in  Virginia  is 

19  cents  and  in  North  Carolina  IS  cents. 

Now,  Mr.  Chairman,  something  was  said  about  the  rates  on  lumber,  which  is  a  thing 
entering  into  the  consumption  of  every  man.  I  will  make  a  brief  comparison  of  the  rates 
on  lumber,  taking  only  a  few  of  the  distances.  The  rate  on  the  Chesapeake  and  Ohio 
for  10  miles  is  3  cents,  while  the  Southern  railway  rate — I  mean  the  maximum  rate  on 
the  roads  from  Norfolk  to  Danville  and  West  Point  to  Danville — is  4J  cents.  In  North 
Carolina  the  rate  is  2.7  cents  and  in  Georgia  2  1-12  cents. 

For  50  miles  the  rate  on  lumber  by  the  Chesapeake  and  Ohio  is  6  cents,  while  on 
the  Southern  railway  in  Virginia  it  is  6J  cents,  in  North  Carolina  5  cents  and  in  Georgia 
41  cents. 

For  100  miles  the  Chesapeake  and  Ohio  is  9  cents,  the  Southern  railway  rate  in 
Virginia  is  10  cents,  in  North  Carolina  6  2-3  cents  and  in  Georgia  5.8  cents. 

For  150  miles  the  Chesapeake  and  Ohio  rate  is  12  cents,  the  Southern  railway  rate 
in  Virginia  is  10  3-4  cents,  in  North  Carolina  it  is  7.9  cents  and  in  Georgia  7  1-4  cents. 

For  200  miles  the  Chesapeake  and  Ohio  rate  is  13J  cents,  the  Southern  railway  rate 
in  Virginia  is  11  3-4  cents,  in  North  Carolina  8  3-4  and  in  Georgia  8  1-3. 

Novr,  Mr.  Chairman,  I  think  I  have  demonstrated  several  things — that  the  tariff  of 
rates  which  the  gentleman  from  Fauquier  used  in  his  speech  on  yesterday  is  not  com- 
parative, uniform  tariff  existing  among  the  railroads  of  Virginia  to-day. 

Mr.  Meredith:  Would  you  be  so  kind  as  to  tell  us  where  you  got  your  figures,  so 
as  to  let  us  feel  they  are  authoritative?    I  do  not  mean  to  dispute  them,  of  course. 

Mr.  Stebbins:  I  have  no  hesitation  in  the  world  about  it.  These  figures  were  com- 
143— Const.  Deb. 


2266 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


piled  for  me  by  Mr.  Goodman,  who  has  charge  of  the  traffic  bureau  of  the  Chamber  of 
Commerce  of  Richmond.  He  states  in  a  note  attached  to  them  the  exact  tariffs  from 
which  they  are  talten,  so  that  there  can  be  no  trouble  in  definitely  locating  any  errors 
and  investigating  by  any  one  who  sees  proper  to  do  so. 

Mr.  Meredith:  They  are  papers,  then,  that  can  be  obtained  by  any  one  who  desires 
to  criticise  them? 

Mr.  Stebbins:  Yes;  they  can  be  easily  obtained;  and,  if  necessary,  I  shall  give  this 
paper  to  the  secretary  as  a  document  of  the  Convention. 

I  have  demonstrated  that  the  proper  comparison  to  make  with  States  south  of  Vir- 
ginia is  by  the  Southern  railway  rates,  because  it  has  the  same  classification  and  has 
roads  running  into  those  States. 

Now,  what  is  the  result?  Do  North  Carolina  and  Georgia  lose  by  the  comparison? 
And  where  is  the  argument  that,  without  any  control  of  the  railroads  in  Virginia,  in 
their  generosity  and  beneficence,  they  have  given  to  Virginia  lower  rates  than  pertain 
in  the  States  south  of  us,  that  have  railroad  commissions? 

Why  sir,  the  gentleman  became  so  enthusiastic  that  he  felt  we  were  vanquished, 
and  in  his  magnanimity  over  his  expected  victory,  he  even  felt  sorry  for  the  loss  of  the 
satchel  of  the  gentleman  from  Danville  (Mr.  Withers).  Mr.  Chairman,  railroad  rates 
and  classifications  are  sometimes  things  that  laymen  can  handle  to  better  advantage 
than  astute  attorneys. 

Mr.  Chairman,  I  will  now  merely  refer  for  a  moment  to  some  local  rates  on  hay, 
which  is  a  commodity  in  Vv^hich  a  great  many  people  are  interested,  and  I  suppose  there 
is  hardly  a  way  freight  that  goes  out  from  Richmond  or  any  other  city  of  the  Common- 
wealth that  does  not  have  some  of  this  commodity  on  it.  These  are  the  local  rates  on 
the  Chesapeake  and  Ohio  railroad  under  a  tariff  issued  July  15,  1901: 

For    10  miles,  10  cents. 

For    50  miles,  18  cents. 

For  100  miles,  27  cents. 

For  140  miles,  30  cents. 

I  have  them  for  all  the  distances,  but  I  do  not  care  to  cumber  the  record  with 
unnecessary  figures.    That  is  a  fair  average. 

Mr.  Chairman,  there  is  one  other  matter  to  which  I  wish  to  refer,  and  which  had 
almost  escaped  my  mind.  I  recall  now  that  the  gentleman,  in  introducing  his  table 
of  rates,  called  attention  to  the  fact  that  they  showed  the  rates  for  1891  and  the  rates 
for  1901,  ana  for  fear  I  may  misquote,  I  shall  read  his  own  language: 

I  am  going  to  deal  with  the  rates  now  in  effect  in  the  State  of  Virginia,  and  under- 
take to  demonstrate  to  this  body  that  the  people  of  Virginia  have  been  fairly  dealt  with 
by  these  transportation  companies.  I  ^am  not  going  to  confine  it  to  the  present,  but  I 
am  going  to  confine  it  to  the  past,  and  show  that  v/ithout  regulation,  without  legisla- 
tive interference,  and  without  commissions  to  control  and  manage  the  roads,  rates  in 
Virginia  to-day  are  lower  than  they  were  ten  years  ago. 

The  inference  I  draw  from  that  language — and  if  I  am  incorrect,  I  hope  the  gentle- 
man will  correct  me — is  that  a  spirit  of  liberality  has  animated  these  railroads  all  the 
time,  and  that  there  has  been  a  continual  reduction  of  rates,  as  they  were  able  to  put 
them  into  effect,  during  the  past  ten  years  from  1891  to  1901. 

But,  Mr.  Chairman,  what  are  the  facts?  The  same  rates  obtained  from  1891  to 
July  15,  1901,  and  the  new  tariff  which  is  being  quoted  here  as  of  1901  was  put  into 
effect  on  July  15th  of  that  year. 

Mr.  James  W.  Gordon:  A  while  ago  a  gentleman  asked  where  you  had  gotten  your 
information  as  to  these  rates,  and  I  ask  you  to  allow  me  to  interrupt  you  now  for  the 
purpose  of  getting  in  the  record  what  I  believe  to  be  the  fact  in  regard  to  it.  Is  it  not 
true  that  from  time  to  time  all  the  railroad  companies  issue  pamphlets  containing  their 
classification  of  rates,  together  with  the  rates,  and  under  the  classification  the  articles 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2267 


embraced  in  the  various  classes,  and  is  it  not  a  fact  that  your  information  was  compiled 
by  Mr.  Goodman  from  that  table  furnished  by  the  railroad  companies? 

Mr.  Stebbins:  Official  tables  of  the  companies,  on  file  in  the  traffic  bureau  of  the 
Chamber  of  Commerce. 

Mr.  Braxton:  Did  I  understand  you  to  say  just  now,  before  the  gentleman  from 
Richmond  (Mr.  Gordon)  interrupted  you,  that  the  rates  which  were  quoted  by  the  gen- 
tleman from  Fauquier  the  other  day — that  the  rates  obtaining  in  this  Stare  in  1901 — 
were  rates  which  had  gone  into  effect  since  this  Convention  has  been  in  session? 

Mr.  Stebbins:    July  15,  1901. 

Mr.  Braxton:  And  that  the  other  rates  had  remained  the  same  from  1891  dov/n  to 
the  time  the  session  of  this  Convention  began? 

Mr.  Stebbins:  Yes,  sir;  there  might  have  been  some  slight  modification,  but  the 
same  tariff  has  been  in  existence  from  1891  to  1901. 

Mr.  Chairman,  and  gentlemen  of  the  committee,  I  have  stated  that  the  demand  for 
this  commission  came  from  the  business  interests  of  the  State,  that  it  largely  grew  out 
of  the  fact  that  the  present  commission  is  incompetent  to  deal  with  the  present  situa- 
tion. I  now  ask,  is  there  not  a  demand  higher  than  these  appeals  which  come  up 
from  the  people?  We  stand  as  sentinels  on  the  watch  tower  to  note  the  approach  of 
danger  and  warn  the  people  thereof.  Aye,  more — to  prepare  a  defense  for  the  people 
before  the  storm  breaks  upon  their  heads.  We  are  supposed  to  be  statesmen  and 
patriots,  able  to  discern  the  signs  of  the  times  and  the  trend  of  events.  The  National 
government  realized  some  years  ago  that  the  railroads  must  be  regulated  in  interstate 
commerce,  and  while  the  interstate  commerce  law  is  very  imperfect,  I  have  no  doubt 
but  that  in  the  course  of  time  such  amendments  vvill  be  made  as  will  bring  it  up  to  the 
highest  efficiency.  The  progressive  States  of  the  Union  have  determined  that  the  rail- 
roads must  be  dealt  with  by  commissioners  in  intrastate  commerce,  and  nineteen  States 
have  commissioners  with  powers  similar  to  those  proposed  by  the  committee. 

The  argument  that  was  formerly  used  by  the  railroads  against  these  commissions 
was  that  competition  would  regulate  rates.  This  argument  is  a  thing  of  the  past.  It 
is  a  fallacy.  Now  there  is  no  competition  scarcely.  We  have  seen  what  were  once  our 
local  roads  from  city  to  city  combined  in  great  systems,  and  we  know  that  these  great 
systems,  especially  those  that  are  paralled  to  each  other,  are  largely  operated  now  under 
what  is  known  as  the  "  community  of  interest  "  plan.  The  chairman  of  this  committee, 
in  his  opening  address  stated  that  about  100,000  miles  of  the  180,000  niiles  of  railroad  in 
the  United  States  are  controlled,  I  believe,  by  five  capitalists.  It  is  commonly  stated, 
and  I  suppose  it  is  a  fact — it  has  never  been  denied,  so  far  as  I  know — that  the  Penn- 
sylvania Railroad  company  owns  a  controlling  interest  in  the  Baltimore  and  Ohio,  the 
Chesapeake  and  Ohio  and  the  Norfolk  and  Western  railways,  and  we  have  seen  the  effect 
of  this  in  the  coal  situation,  to  which  I  have  heretofore  referred.  This  effect  is  also 
seen  in  the  passenger  rates,  for  I  understand  that  before  this  arrangement  round  trip 
tickets  fi'om  Norfolk  to  Richmond  were  $3.50,  and  to-day  they  are  $4.50.  This  possibly 
may  not  be  any  more  than  they  should  be,  but  we  see  how  they  can,  by  combining 
interests,  arbitrarily  make  these  rates  what  they  please;  and  the  gentleman  from  Man- 
chester TMr.  Ingram)  read  a  letter  on  this  floor  as  a  part  of  his  remarks  on  day  before 
yesterday  from  a  prominent  business  man  of  the  State  in  which  he  said  the  rates  of 
freight  had  been  increased  50  per  cent,  under  the  community  of  interest. 

Shall  we,  as  wise  master  builders,  prepare  now  to  protect  the  people  against  these 
great  combinations,  or  shall  we  wait  until  they  have  us  fast  in  their  coils  and  we  are 
powerless  to  help  ourselves?  Unless  we  act  now,  I  fear  it  will  be  too  late.  Each  year 
they  become  stronger,  and  we  become  less  able  to  oppose  them. 

The  gentleman  from  Fauquier  has  drawn  upon  his  imagination  for  some  of  the  most 
remarkable  illustrations  I  have  ever  heard  to  show  how  this  railroad  commission  might 
oppress  the  railroads.  He  says,  for  instance,  that  if  the  distinguished  representative 
from  Russell  (Mr.  Stuart)  should  think  he  had  some  mineral  ore  twenty  miles  from 


2268 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


a  railroad,  and  he  should  want  them  to  build  a  spur  to  it,  and  they  should  investigate 
and  find  the  ore  y^as  not  in  paying  quantities,  and  he  should  come  before  the  commission, 
they  would  compel  the  railroad  to  build  that  twenty  miles  of  track  to  his  minerals. 
Then  he  says  there  are  two  roads  from  here  to  Petersburg,  the  Richmond  and  Petersburg 
and  the  Seaboard  Air  Line,  and  that  the  newspapers  say  there  is  going  to  be  another,  an 
electric  road,  and  the  commission  could  compel  the  Richmond  and  Petersburg  to  adopt 
such  a  schedule  of  trains  as  would  make  it  unpopular  and  throw  all  that  travel  on  the 
Seaboard  Air  Line;  or  they  could  compel  the  two  steam  railroads  to  make  schedules 
that  would  be  so  unpopular  with  the  people  and  so  little  suited  to  their  convenience, 
that  they  could  throw  all  the  passenger  traffic  on  the  electric  line.  Why,  gentlemen,  is 
there  anything  more  far-fetched  and  absurd  than  such  propositions  as  these?  If  wo 
had  commissioners  who  would  do  such  things  the  people  would  repudiate  them,  and 
the  railroads  are  protected  by  appeal  from  their  regulations,  and  the  Legislature  can 
enact,  by  general  laws,  regulations  for  their  government  by  the  commission. 

Now,  Mr.  Chairman,  I  am  going  to  revert  to  an  incident  that  was  mentioned  by  the 
distinguished  attorney,  Mr.  Baxter,  who  appeared  before  the  Committee  on  Corporations, 
in  behalf  of  the  railroads.  He  objected  to  that  clause  in  the  report  which  did  not  per- 
mit a  railroad  to  make  any  special  rate  without  first  consulting  the  commission,  and  in 
support  of  that  contention  he  mentioned  an  incident  that  had  but  recently  been  given 
to  him  by  Mr.  Davant,  the  general  freight  agent  of  the  Norfolk  and  Western  railway. 
I  will  read  from  Mr.  Baxter's  speech: 

The  tendency  of  the  long  and  short  haul  clause  will  be  to  drive  Virginia  lines  out 
of  a  certairi  amount  of  competitive  business.  It  will  have  that  effect  to  a  certainty. 
Mr.  Davant,  of  the  Norfolk  and  Western  railroad,  told  me  the  other  day  that  this  case 
occurred  with  him.  A  person  desired  to  erect  a  building  requiring  a  large  amount  of 
brick,  at  Bristol,  on  the  line  between  Tennessee  and  Virginia.  Brick,  of  a  certain  price, 
could  be  brought  from  a  certain  station  on  the  Southern  railway  in  Tennessee  to  Bris- 
tol at  a  certain  rate.  A  man  who  manufactured  brick  at  Pulaski,  Va.,  desired  the  Nor- 
folk and  Western  railroad  to  make  him  a  rate  on  brick  from  Pulaski  to  Bristol,  that 
would  enable  him  to  move  the  bricks  from  Pulaski  to  Bristol,  in  competition  with  the 
Tennessee  brick,  that  could  be  brought  to  Bristol  by  the  Southern  railway.  Mr.  Davant 
saw  that  the  movement  of  those  bricks  would  pay  something  more  than  it  would  actually 
cost  him  to  move  them — he  would  make  something  by  it;  it  might  be  very  little,  but 
whatever  it  might  be  he  wanted  to  make  it — and  accordingly  he  gave  a  rate  which 
enabled  the  Virginia  manufacturer  to  market  his  product  in  competition  with  the  Ten- 
nessee manufacturer.  In  doing  so,  Mr.  Davant  hurt  no  one;  and  yet,  if  he  had  been  told 
that  he  must  not  haul  that  brick  from  Pulsaki  to  Bristol  to  meet  the  Tennessee  competi- 
tion at  Bristol,  unless  he  reduced  all  his  intermediate  rates  between  Pulaski  and  Bristol 
to  the  level  of  said  competitive  rate,  he  would  have  been  compelled  to  say  to  the  Virginia 
manufacturer.  "I  cannot  give  you  a  rate  that  will  enable  you  to  sell  your  bricks  in 
Bristol,  because  I  cannot  afford  to  haul  all  my  intermediate  traffic  at  that  rate.  I  can 
meet  the  competition  at  Bristol,  if  I  am  permitted  to  do  so  without  reducing  my  inter- 
mediate rates,  but  I  cannot  meet  it  if  I  am  compelled  to  reduce  my  intermediate  rates." 
If  your  proposed  ordinance  had  been  in  effect,  the  result  would  have  been  that  Mr. 
Davant  would  have  been  compelled  to  say  to  the  Virginia  manufacturer,  "  I  cannot  carry 
your  traffic  " 

The  Chairman:  But  does  not  the  clause  authorizing  the  commission  to  permit 
reduced  rates  in  cases  of  competition  meet  that  difficulty? 

Mr.  Baxter:    Theoretically  it  would,  but  practically  it  would  not. 
The  Chairman.:    Why  not  practically? 

Mr.  Baxter.  Because  by  the  time  Mr.  Davant  could  have  communicated  the  situa- 
tion of  affairs  to  the  railroad  commission,  and  gotten  permission  to  take  those  bricks 
at  the  competitive  rates,  the  traffic  would  have  been  secured  by  the  Southern  railway 
and  the  Tennessee  manufacturer  would  have  secured  the  contract. 

Mr.  Chairman,  I  have  only  referred  to  this  to  show  that  if  any  one  has  ever  ap- 
plied to  a  railroad  for  a  special  rate  they  will  know  that  the  railroad  does  not  hurry 
to  the  telegraph  key  to  give  it  lo  him  at  once.  They  investigate,  to  know  whether  the 
facts  stated  by  the  applicant  are  true,  and  as  a  general  thing  they  do  not  give  the  rate 


DEBATES  OE  THE  COXSTITUTIOXAE  COXVEXTIOX  OE  VIRGIXIA. 


2269 


he  asks  for,  unless  they  liave  made  an  effort  to  get  a  better  rate  out  of  him  and  cannot 
succeed. 

No^v,  as  to  the  time  talien  to  refer  this  matter  to  the  commission,  it  is  absurd  to 
say  ihat  in  the  majority  of  cases  it  would  be  so  long  as  to  prevent  the  railroad  from 
securing  that  competitive  business.  I  am  a  little  familiar  v^-ith  the  facts  in  this  par- 
ticular case,  and  for  that  reason  I  mentioned  it  to  prove  my  contention. 

The  facts  are  that  it  took  seven  or  eight  days  for  the  party  to  obtain  that  rate.  He 
wrote  tv,-o  letters  to  Roanoke,  and  correspondence  would  not  get  it,  and  he  got  on  the 
cars  and  went  to  Roanoke  and  had  a  personal  interview  with  the  general  freight  agent 
before  he  could  secure  it.  That  is  the  way  they  hurry  to  make  special  rates,  and  that 
argument  by  the  distinguished  Mr.  Baxter,  and  the  illustration  which  he  innocently  gave, 
because  he  was  not  fully  informed  of  all  the  facts.  I  reckon,  is  on  a  par  with  many  other 
arguments  made  against  a  railroad  commission. 

:slv.  Chairman,  I  am  not  going  into  all  the  discussion  we  have  had  on  this  floor  on 
this  subject.  We  have  all  heard  the  changes  rung  on  the  old  stock  arguments,  that  it 
will  drive  capital  out  of  the  State  and  not  another  mile  of  railroad  will  be  built — things 
that  might  scare  very  timid  men,  nervous  women  and  children,  but  would  hardly  affect 
a  man  with  a  brain  and  backbone;  and  I  am  not  going  into  that. 

There  is  one  more  point  I  want  to  notice  in  the  arguments  of  the  gentlemen  on  the 
other  side.  They  say  that  if  this  report  is  adopted  it  will  confiscate  and  bankrupt  the 
railroads.  It  is  astonishing  to  me  how  some  men  continually  look  through  blue  goggles. 
Nineteen  States  have  commissions  with  great  powers,  and  the  railroads  have  prospered. 
They  have  prospered  equally  as  much  as  they  have  prospered  in  Virginia,  where  they 
have  had  everything  their  own  way.  The  arguments  of  these  gentlemen  can  only  be 
reconciled  on  the  ground  that  they  are  assuming  that  the  commissioners  will  be  either 
incompetent  or  corrupt,  and  to  assume  such  a  thing  is  a  reflection  upon  the  intelligence 
and  honor  of  the  people  of  Virginia.  I  believe  that  the  great  masses  of  the  people  are 
honest.  I  believe  they  want  nothing  but^'^act  and  equal  justice  meted  out  to  the  rail- 
roads. I  do  not  believe  that  a  man  whom  the  people  of  Virgina  would  elect  to  the 
exalted  position  of  governor  would  appoint  to  this  high  and  responsible  post,  nor  that 
the  General  Assembly  would  confirm,  any  but  men  fully  qualified  for  the  work,  of  unim- 
peachable character  and  judgment,  who  would  administer  the  office  without  favor 
or  partiality,  but  with  a  just  regard  to  the  rights  of  the  people  and  of  the  railroads.  It 
has  been  the  glory  of  Virginia  that  her  courts  have  been  presided  over  by  incorruptible 
judges.  In  my  experience  I  cannot  recall — layman  though  I  may  be — a  single  instance 
in  which  the  integrity  of  purpose  of  a  single  one  of  her  judges  has  been  questioned. 
When  this  new  court  shall  have  been  established  to  deal  solely  with  the  regulation  and 
control  of  corporations,  it  will  oe  found  to  be  as  competent  and  above  reproach  as  our 
present  Court  of  Appeals. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  thank  you  for  the  patient  hearing 
which  you  have  given  me.  I  am  not  going  to  detain  yoti  with  any  brilliant  peroration.' 
I  simply  rose  as  a  plain  citizen,  a  business  man,  to  state  facts,  and  with  those  facts 
lodged  in  your  minds  I  leave  the  case  to  you  to  judge  whether  or  not  the  majority 
report  should  be  adopted.    (Great  applause.) 

Mr.  Withers:  INIr.  Chairman,  the  condition  of  my  voice  is  such  that  I  shall  have 
to  ask  the  members  of  the  committee  to  patiently  bear  with  me  in  what  I  shall  have  to 
say.  It  has  been  my  misfortune,  Mr.  Chairman,  and  it  has  been  the  good  fortune  of 
this  Convention,  to  have  whatever  speeches  I  have  had  the  honor  to  deliver  before  it, 
spoken  on  Friday  or  Saturday,  with  one  solitary  exception,  so  that  they  were  an  inflic- 
tion and  burden  on  but  few  of  the  members  of  this  Convention.  I  would  not  speak 
to-day — I  say  it  with  the  utmost  frankness — to  so  small  a  membership  of  this  body;  not 
that  I  have  the  personal  egotism  to  expect  a  large  membership  or  anybody  to  hear  me 
speak — were  it  not  for  the  fact  that  I  have.  ^Ir.  Chairman,  some  facts  that  I  believe 
the  members  of  this  Virginia  Constitutional  Convention  ought  to  know. 


22,70 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


I  believe  that  the  people  of  Virginia  ought  to  know  these  facts,  and  it  is  the  first 
time  in  eight  years  that  I  have  had  the  means  and  opportunity  of  getting  these  facts 
before  the  people  of  Virginia,  because  when  the  attempt  has  been  made  by  me  in  the 
Senate  of  Virginia  the  newspapers  of  Virginia  would  not  publish  the  facts  that  were 
given,  and  authoritatively  given.  Now,  the  press  of  Virginia  is  bound  to  know  these 
facts,  because,  presumably,  they  will  appear  in  the  official  record  and  report  of  this 
Convention.  But  for  the  fact,  Mr.  Chairman,  that  I  shall  discuss  only  the  question  as 
to  the  necessity  of  a  corporation  commission,  which  has  been  treated  only  by  the  mem- 
ber from  Halifax,  I  will  not  speak  at  all,  because  the  chairman  of  this  committee  (Mr. 
Braxton),  the  gentleman  from  Manchester  (Mr.  Ingram)  and  the  gentleman  from  North- 
ampton (Mr.  Kendall)  have  so  ably,  elaborately,  fully,  and,  to  my  mind,  satisfactorily, 
argued  the  general  principles  and  the  law  and  equity  of  the  question. 

If  I  recollect  aright,  it  has  been  asked  on  the  floor  of  this  Convention:  '*  What 
reason,  what  facts  exist  to  justify  the  creation  of  a  corporation  commission?"  The 
Richmond  News,  in  a  very  temperate  and  very  fair  editoral.  said  that  it  was  but  just 
that  the  people  of  Virginia  should  know  why  this  measure  was  asked  for,  that  the  con- 
ditions and  circumstances  that  justify  the  Constitutional  Convention  in  undertaking 
what  is  comparatively  a  new  step  in  constitutional  enactment,  should  be  known,  and 
that  the  people  of  Virginia  might  demand  and  have  the  right  to  know  why  such  a  step 
was  taken  by  this  body,  and  what  facts  there  were,  and  what  conditions  there  were  to 
justify  this  body  in  taking  that  step.  That,  Mr.  Chairman,  I  regard  as  a  fair  request. 
That  I  regard  as  but  due  to  those  who  are  doubtful  about  the  wisdom  and  propriety  of 
such  a  measure  as  this.  They  ought  to  know  why  those  of  us  who  advocate  if,  do  ad- 
vocate it,  and  insist  upon  its  enactment  into  the  fundamental  law  of  this  State.  There- 
fore, Mr.  Chairman,  I  shall  treat  this  question  and  discuss  it  only  from  the  point  of  the 
necessity  for  the  creation  of  such  a  tribunal.  I  shall  not  consider  the  general  principles 
underlying  this  admirable  report  of  the  committee — of  course  I  speak  of  the  majority 
report.  I  shall  not  consider  and  discuss  the  legal  and  equitable  principles  that  underlie 
and  are  the  foundation  upon  which  this  report  has  been  based  by  the  gentlemen  who 
have  brought  it  into  this  Convention  for  discussion  in  Committee  of  the  Whole;  but  I 
shall  treat  the  discussion  from  the  standpoint  of  necessity  for  the  creation  and  existence 
of  a  body  that  shall  have  the  right  to  say  to  the  public  service  corporations  of  Virginia. 
"  Thus  far  shalt  thou  go,  and  no  farther,"  in  the  extortions  and  exactions  that  you  may 
have  chosen  to  put  upon  the  people  of  Virginia.  I  hope,  therefore,  the  line  of  what  I 
have  to  say  has  been  marked  out.  I  shall  cite  but  one  law  authority.  I  shall  appeal  to 
but  one  general  principle;  but  I  shall  state  facts  to  this  Constitutional  Convention  duly 
proved  in  a  court,  and  duly  admitted  by  a  corporation,  which  signed  its  answer  through 
a  gentleman  who  appeared  in  opposition  to  this  bill  before  the  Corporation  Committee 
of  this  Convention,  many  of  which  facts  are  admitted  in  the  sworn  testimony  of  the 
general  traffic  manager  of  one  of  the  leading  railroad  systems  of  this  United  States. 
Nobody  knows  of  those  facts  except  those  who  were  interested,  unless  possibly  it  be 
merchants  against  whom  the  discriminations  were  made,  and  the  dealers  from  whom 
they  buy.  You  cannot,  apparently,  get  these  facts  into  the  press.  You  cannot  let  the 
people  of  Virginia  know  what  they  are  suffering  from  and  what  burdens  are  imposed 
upon  them. 

Mr.  Chairman,  my  distinguished  and  esteemed  friend  from  Fauquier  (Mr.  Hunton), 
usually  so  happy  in  language,  expression,  diction  and  dialectics,  as  well  as  argument 
and  reason,  seemed  to  me  to  be  felicitously  unhappy  in  most  of  the  things  he  said  in 
arguing  this  question  before  this  committee.  My  distinguished  friend  from  Fauquier, 
although  I  had  said  not  one  word  about  this  report,  did  me  the  honor  to  give  me  some 
attention  in  the  course  of  his  remarks.  He  spoke  of  me  as  "  the  gentleman  from  North 
Carolina." 

Mr.  Chairman,  it  is  true  that  I  had  the  honor  to  be  born  in  the  State  of  North  Caro- 
lina, and  I  can  say,  as  one  reasonably  familiar  with  her  history,  that  there  is  nothing 


DEBATES  OF  THE  COXSTITUTIOis'AL  CONYENTIOX  OF  VIRGINIA. 


2271 


in  its  record,  from  the  time  that  the  Regulators  of  Alamance  made  the  British  soldiers 
fly  before  them,  before  the  tocsin  of  war  had  sounded  for  the  Revolution,  down  to  the 
time  that  five  thousand  of  them  surrendered  with  Robert  E.  Lee  at  Appomattox,  to  make 
me  ashamed  of  the  fact  that  God  Almightj^  in  his  v/isdom,  had  allowed  me  to  be  born  in 
North  Carolina.  (Applause.)  So  I  shall  pass  that  by.  My  distinguished  friend  from 
Fauquier  I  have  known  for  eight  years,  and  I  could  appeal  to  his  illustrious  father,  who 
knov/s  well  the  truth  of  what  I  say  with  reference  to  gallantry  of  the  men  of  North 
Carolina  in  the  State  of  Virginia  during  the  Civil  War. 

It  is  true,  Mr.  Chairman,  that  I  have  known  the  gentleman  for  eight  years.  I  formed 
his  acquaintance  in  the  session  of  1893-'94,  when  I  had  the  honor  of  serving  with  him 
in  the  House  of  Delegates.  I  esteemed  him  for  his  personality  and  for  his  intellectuality. 
He  speaks  with  truth,  when  he  says  in  substance,  that  I  stood  nearly  alone  in  that  Leg- 
islature. I  think  possibly  he  puts  it  a  little  too  strong  when  he  says  that  I  have  com- 
plained of  the  Legislature  and  of  the  judiciary,  and  of  the  railroads  and  of  everybody 
except  some  statistics  that  I  happen  to  have  compiled  in  North  Carolina,  the  most  of 
which  I  have  not  lost.  But  I  v/ant  to  say  he  v/as  felicitously  unhappy  in  that  regard, 
because,  Mr.  Chairman,  wherein  I  stood  alone  in  that  General  Assembly  of  Virginia, 
was  on  the  employers'  liability  bill  and  one  or  two  similar  measures.  I  stood  nearly 
alone  in  the  session  of  1895-'96  in  the  Senate  of  Virginia.  I  stood  with  five  or  six  other 
gentlemen  in  the  session  of  1897-'98  in  the  Senate  of  Virginia,  and  saw  the  employers' 
liability  bill  go  down  for  the  fourth  time,  and  yet,  to-day,  both  of  the  great  parties  of 
Virginia  have  as  a  plank  in  their  platforms,  an  imperative  demand  that  a  just  and  equit- 
able employers'  liability  bill  shall  be  enacted  into  law.  If  I  have  complained  of  the 
courts,  the  party  platforms  condemn  them.    Who  is  alone  now. 

The  gentleman  was  felicitously  unhappy  in  his  allusions  to  other  questions,  in  which 
I  had  the  honor  to  be  more  or  less  interested.  Before  I  came  to  the  General  Assembly 
of  Virginia  I  heard  of  the  great  fight  over  the  Kent  bill,  which  was  displaced  by  that 
eunuch  bill,  known  as  the  Mason  bill,  above  nothing  and  below  nothing,  so  far  as  effec- 
tiveness and  efficiency  are  concerned.  As  a  member  of  the  General  Assembly  of  Virginia 
I  have  introduced  two  corporation  commission  bills  for  the  purpose  of  having  them 
enacted  into  law  by  the  power  that  these  gentlemen  submit  should  enact  them,  and  they 
sleep  the  sleep  that  knows  no  waking  in  the  Senate  Committee  on  Roads,  from  whence 
they  never  got  to  the  light  of  day. 

That  the  employers'  liability  bill  and  the  railway  commission  bill,  copied  almost 
literally  in  one  instance  from  the  North  Carolina  commission  bill,  v»'hich  has  been  some- 
what extolled  upon  this  floor  as  being  ineflicient  and  ineffective,  and  indirectly  as  some- 
what drastic,  in  another  sentence  or  clause  possibly  of  another  speech — those  of  us  who 
might  be  called  the  Spartan  band  of  the  General  Assembly,  standing  against  the  Persian 
hosts  in  that  body,  saw  those  bills  drawn  out  amidst  the  scoffs  and  jeers  of  the  gentle- 
men who  now  seem  to  have  seen  the  light  of  day  and  recognize  the  infinite  wisdom  of 
the  employers'  liability  bill  and  the  railway  corporations  commission  bill,  but  cannot  see 
why  they  should  be  put  into  the  organic  law  of  the  State. 

My  friend's  felicitous  unhappiness  continued.  I  really  think  the  gaudiun  cer- 
taminis,  as  I  believe  it  was  styled  by  the  ancients,  caused  him  to  give  utterance  to  the 
remarkable  closing  sentence  of  his  speech,  I  read  one  or  two  sentences  therefrom: 
"Think  you  not,  should  this  instrument  be  submitted  to  the  present,  or  a  restricted 
electorate,  with  these  radical  and  uncalled-for  provisions  in  it,  that  these  corporations 
would  not  furnish  the  money  and  the  brains  to  marshall  all  the  dissatisfied  people  of 
the  State  against  this  Constitution,  to  prevent  its  ratification  by  the  people  when  sub- 
mitted to  them?"  Array  the  dissatisfied  elements!  What  are  they?  These  gentlemen 
argue  for  conservatism  and  tell  us  that  these  corporations  ought  not  to  be  put  into  the 
mad  vortex  and  whirlwind  and  tornado  of  populism. 

Why,  Mr.  Chairman,  if  I  may  be  permitted  to  indulge  in  a  little  good-natured  raillery, 
uttered  in  all  respect,  the  report  of  the  majority  of  this  Committee  on  Corporations 


2272  DEBATES  OF  THE  CON STITUTIOi^AL  CONVENTION  OF  VIRGINIA. 

seems  to  have  caused  certain  papers  and  certain  gentlemen  on  this  floor  to  have  an 
attack  of  intellectual  jimjams.  Certainly  some  distinguished  members  of  this  Conven- 
tion have  been  "  seein'  things  at  night,"  suffering  not  from  mania  a  potu,  but  from  mania 
a  corporatione,  and  so  acute  has  it  been  that  the  friends  of  anarchy,  the  devils  of 
populism  and  the  serpents  of  radicalism  have  been  threatening  these  esteemed  gentle- 
men until  they  seem  to  consider  their  very  lives  in  danger. 

"  Seein'  things  at  night!  "  Eugene  Field  wrote  the  most  remarkable  little  poem 
about  the  little  boy  who  ate  mince-pie,  and  he  saw  things  at  night  that  were  "P'inting 
at  him  so."  (Laughter.) 

I  want  to  assure  these  distinguished  gentlemen  that  those  of  us  who  advocate  this 
bill  have  none  of  the  horrors  that  they  predict  in  store  for  them.  I  want  to  tell  them 
something  more,  that  the  arguments  they  have  used  here  on  this  floor  against  this  bill 
are  the  arguments  used  in  North  Carolina,  in  Georgia  and  in  Texas  against  the  enact- 
ment of  their  corporation  commissions  into  law.  That  is  my  information.  I  was  not 
present  to  hear  it.  They  have  utterly  fallen  flat,  and  every  one  of  those  three  States  is 
more  prosperous  commercially,  industrially,  and  advancing  more  along  the  tide  of  indus- 
trial and  commercial  growth  than  is  old  Virginia. 

Why,  the  idea  of  talking  about  a  corporation  commission  that  does  not  hurt  anybody 
in  Texas  being  injurious  in  Virginia. 

They  have,  in  addition  to  their  corporation  commission  law  in  that  State,  a  stock 
and  bond  law  which,  if  w^e  were  to  propose  it  in  the  Legislature  of  Virginia,  would 
cause  wild  cries  of  dismay  and  horror  and  righteous  indignation;  and  yet  I  am  informed 
by  the  last  report  of  the  Texas  railway  commission,  of  which  John  H.  Reagan  is  chair- 
man, that  it  has  worked  with  such  eminent  satisfaction  as  to  prove  not  only  beneficial 
to  the  people  of  the  State,  but  to  the  railroads  themselves,  and  the  bitterest  opponents 
of  it  have  come  to  regard  it  as  a  blessing  instead  of  a  curse. 

So  overwhelming,  so  terrifiic  has  become  this  impression,  that  similar  arguments 
as  to  stopping  the  advances  of  business  and  commercial  industry  as  have  been  used 
before  this  body  are  being  used  before  the  courts  of  the  land,  and  they  are  urged  to  con- 
sider the  consequences  of  a  decision  lest  they  force  certain  companies  of  a  certain  kind 
to  be  so  trammeled  as  to  quit  business.  Mr.  Chairman,  I  want  right  here  to  say  that  I 
am  not  an  anarchist,  that  I  am  a  man  who  believes  in  law  and  order,  that  I  never  fol- 
lowed the  fanciful  banner  of  populism,  that  in  my  community  as  an  humble  citizen — 
and  as  I  am  an  humble  member  of  the  Convention  here,  so  I  am  an  humble  citizen 
there — I  have  some  little  interest  other  than  as  a  lawyer.  It  has  always  been  my  desire 
and  aim,  and  whenever  and  wherever  I  could,  I  gave  what  capacity  I  was  capable  of 
giving  to  that  which  v>^ould  promote  the  progress  and  the  advancement  of  my  town  and 
my  community.  I  believe  that  on  the  question  of  character,  as  to  populism  and  anarch- 
ism, and  wild,  crazy  ideas  about  destroying  corporations,  and  all  that  sort  of  thing,  with 
the  exception  of  possibly  two  or  three  citizens  of  my  town  who  think  this  bill  is  just  one 
wild  concatenation  of  all  deviltry,  I  can  get  as  good  a  character  by  certificate  and  affidavit 
as  my  friend  from  Fauquier,  or  any  other  distinguished  opponent  of  this  measure.  For 
ability,  I  gladly  yield  the  palm,  but  for  the  desire  to  see  my  State  and  my  city  advance 
along  the  path  of  commercial  and  industrial  development,  I  believe  I  am  as  sincere  in 
desiring  to  see  that  as  any  man  upon  this  floor. 

Now,  what  are  the  needs  for  this  commission?  Do  the  conditions  of  the  people  of 
Virginia  need  it?  Do  they  require  it?  Or  do  they  even  justify  it?  It  is  a  fair  question. 
It  is  a  direct  challenge  that  we  ought  to  accept,  or  not  insist  upon  passing  this  measure 
until  we  can  sustain  our  position;  and  in  doing  or  attempting  to  do  that,  I  will,  I  think, 
be  able  to  show  that  my  friend  from  Fauquier  was  again  felicitously  unhappy  in  select- 
ing the  road  he  did  select  to  compare  rates,  etc.,  of  another  State,  and  the  reasons  there- 
of. 

Mr.  Chairman,  weighing  carefully  the  words  I  use,  saying  them  without  passion  or 
prejudice  or  the  excitement  of  controversy,  or  the  heat,  even,  of  a  speaker,  for  my 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2273 


voice  forbids  even  tliat  manifesration,  I  stand  here  to  charge  that  the  railway,  techni- 
cally known  as  the  common  carriers  or  transportation  companies  of  this  State,  have 
committed  high  crimes  and  misdemeanors  against  its  citizens.  I  stand  here  to  charge, 
Mr.  Chairman,  that  the  railways  of  A^irginia  levy  upon  and  exact  from  its  citizens, 
many  of  them,  a  burden  excessive  and  unjust,  that  will  exceed  the  amount  of  State  taxa- 
tion paid  hy  those  communities  upon  real  and  personal  property,  c-apitations  and  income. 
I  stand  here  to  say  that  the  common  carriers  of  Virginia  have,  and  exercise  a  power  as 
despotic  as  that  of  a  Czar,  and  that  I.  for  one,  if  despotism  is  to  be  lodged  somewhere, 
prefer  to  lodge  it  in  the  duly  accredited  representatives  of  the  people,  and  not  in  a 
reorganization  committee  in  some  office  in  Wall  street. 

They  have  not  the  right  to  levy  upon  the  industries  and  manufacturies  and  business 
of  this  Commonwealth  a  tribute  to  pay  dividends  upon  bonds  or  stocks  representing 
nothing  but  water.  They  have  not  the  right,  untrammeled  and  unrestrained  to  decide 
arbitrarily  upon  a  system  of  classification  and  a  system  of  freight  and  traffic  rates  that 
will  unduly  burden  the  industries  of  this  State  and  will  prejudice  communities  in  favor 
of  communities,  localities  in  favor  of  localities,  and  citizens  in  favor  of  citizens. 

If  I  can  sustain  any  one  of  those  charges,  I  submit  the  necessity  for  a  corporation 
commission  bill  is  justified.  Talk  abotit  putting  it  in  the  Constitution!  A  fundamental 
principle:  Keep  it  out  of  the  organic  law!  King  John  would  have  thundered  at  the 
barons  to  keep  the  right  of  the  writ  of  habeas  corpus  out  of  the  organic  law.  but  it  is 
In  the  organic  law  in  England  just  as  much  as  if  it  were  written  in  the  blood  of  its  citi- 
zens on  every  page  of  the  record  of  that  country.  A  fundamental  principle  I  The  right 
of  trial  by  jury,  by  a  judgment  of  one's  peers  was  esteemed  by  King  John  a  wrong  princi- 
ple to  be  put  in  the  organic  law.  though  the  barons  forced  him  to  do  it.  Fundamental 
principle.'  Freedom  of  the  press,  regarded  here  as  one  of  the  sacred  rights  of  man. 
would  be  deemed  by  the  Czar  and  his  ministry  in  Russia  to-day  an  unwise  provision  to 
be  put  in  the  fundamental  law.  Fundamental  law:  Every  time  you  put  these  gentlemen 
in  a  hole  they  say:    "That  is  all  right,  but  it  ought  not  to  be  in  the  fundamental  law." 

Xow,  let  us  see  if  it  ought  not.  WTiy.  Mr.  Chairman,  if,  at  Runnymede,  or  as  late 
as  1776,  or  as  late  as  1S29-30.  or  even  as  late  as  1S50-51.  somebody  had  proposed  this 
provision  to  go  into  the  fundamental  law  of  England,  or  of  the  United  States,  or  of  Vir- 
ginia. I  would  have  agreed  with  them  that  it  was  absolutely  improper  to  put  that  sort 
of  thing  in  the  fundamental  law.  There  were  practically  no  railroads  to  control,  no 
common  carriers  to  restrain.  No  reason  existed  for  the  putting  into  the  organic  law  as 
a  fundamental  principle  of  government  that  the  common  carriers,  the  creatures  and  the 
children  of  the  State,  should  not  have  despotic  powers  to  levy  upon  and  exact  from  the 
people  unlimited  tribute  in  the  way  of  rates  upon  the  business  of  the  country.  And  if, 
under  the'  tremendous  development  of  the  railroad,  canal,  steamboat,  telephone,  tele- 
graph and  express  companies  of  this  country;  if,  under  the  wonderful  power  they  have 
acquired  under  broad  franchises  and  privileges  and  charters,  if,  tinder  the  conditions 
that  surround  us  now,  it  is  not  a  fundamental  principle  that  they  should  be  controlled 
and  kept  from  perpetrating  wrongs  and  extortions  upon  the  people  of  the  community  upon 
whom  they  lay  tribute,  and  upon  the  citizens  of  a  country  that  gives  them  the  right  to 
live,  then  I  fail  to  know  what  a  fundamental  doctrine  or  a  fundamental  law  is. 

Fundamental  law!  Corporations,  existing  in  the  State  and  exacting  from  the  citi- 
zens of  that  State  in  excess  of  what  a  judicial  tribunal  has  said  to  be  a  just  and  equit- 
able freight  and  traffic  rate,  exacting  from  the  citizens  of  a  community,  a  city  of  a  State, 
a  burden  greater  than  the  burden  of  State  taxation,  in  excess  of  a  just  and  equitable 
rate  are  not  to  be  controlled!  If  it  is  not  a  fundamental  principle  that  those  people 
should  be  protected  from  exaction  and  injustice  and  oppression,  then  there  is  no  funda- 
mentality  in  the  right  of  property  and  the  right  of  pursuit  of  happiness. 

Fundamental  law!  Is  it  not  in  other  State  constitutions.  Vliy  not?  Because 
other  State  constitutions,  like  ours,  in  the  main,  have  been  made  in  the  past  when  these 
evils  had  not  grown  so  paramount  and  tremendous,  and  in  addition  to  that,  when  other 
States  had  by  their  law.  enacted  into  legislative  enactment  the  relief  that  the  people 
desired. 


22,74  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

They  say  the  people  do  not  know  anything  about  it.  Let  us  see  if  they  do  not. 
They  say  the  people  do  not  want  it.  Let  us  see  if  they  do  not.  I  shall  show  as  I  pro- 
ceed in  this  speech  that  the  citizens  of  Virginia  have  clamored  at  the  door  of  the  Gen- 
eral Assembly  for  the  right  to  re-enact  a  certain  section  of  the  Code  of  Virginia  in  order 
that  they  might  file  a  bill  in  equity  for  relief  against  certain  wrongs,  and  that  right  was 
denied.  I  want  to  say,  gentlemen,  that  it  was  not  one  or  two  men  that  did  it,  but  a 
community.  "  Oh,"  they  will  say,  "  that  is  Danville."  Yes,  and  I  will  say  that  the  op- 
pressions that  apply  to  Danville,  so  far  as  I  am  informed,  apply  to  every  part  of  Virginia 
that  the  "  official  classification  "  does  not  reach,  and  I  will  tell  you  why  they  adopted 
the  "  official  classification  "  before  I  get  through,  and  exactly  why  the  Chesapeake  and 
Ohio  railroad  allowed  the  citizens  of  Virginia  such  reductions  as  they  have  allowed 
them,  and  it  was  not  out  of  any  generosity  to  the  citizens  of  Virginia,  but  it  was  a 
patriotic  motive,  spelt  "  paytriotic,"  because  they  had  to  meet  certain  conditions  that 
confronted  them  in  northern  cities. 

I  want  to  say  to  you,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  in  pre- 
senting what  I  have  to  say  upon  this  subject  it  will  necessarily  be  tedious  and  tiresome, 
because  it  embraces  the  charges  made  and  confessed  and  testified  to  by  a  deposition 
which  I  have  with  me,  but  I  want  them  in  the  record,  even  if  they  tire  you  and  are 
laborious  to  me. 

The  rates  that  I  am  going  to  tell  you  about,  Mr.  Chairman,  as  being  charged  and 
admitted  and  proved,  are  interstate  rates,  but  the  table  of  the  gentleman  from  Fauquier 
was  largely  composed  of  interstate  rates.  Now,  why  do  I  appeal  to  interstate  rates?  I 
have  five  good  reasons  for  the  appeal  and  I  believe  the  committee  will  see  the  wisdom 
of  my  reasons  when  I  state  them. 

I  do  it,  first,  because  railroads  which  will  discriminate  on  interstate  rates,  and  by 
that  deliberately  violate  a  law  of  the  United  States  creating  the  interstate  Commerce 
Commission,  will  discriminate  on  intrastate  rates  when  they  practically  violate  no 
law  in  doing  so. 

Second,  the  figures  I  have  are  absolutely  authentic.  They  are  admitted  in  the 
answer  of  the  Southern  railway,  signed  by  W.  W.  Finley,  second  vice-president,  which 
I  have  here  with  me. 

Mr  Thom:    What  is  the  title  of  the  suit? 

Mr.  Withers:  The  City  of  Danville  vs."  The  Southern  Railway,  et  als.,  before  the 
Interstate  Commerce  Commission,  which  I  will  give  at  length,  and  they  are  largely 
admitted  in  the  sworn  deposition  of  J.  M.  Culp,  general  traffic  manager  of  the  same  sys- 
tem, who  is  as  great  an  'expert  upon  traffic  rates  as  is  my  distinguished  friend  from 
Fauquier. 

Now  let  me  tell  you  why  I  am  so  emphatic  about  their  authenticity.  The  gentle- 
man from  Fauquier  and  the  gentleman  from  Halifax,  I  know,  will  understand  that  about 
whatever  rates  we  may  get,  there  are  very  frequently  questions,  not  in  the  sense  that 
our  honesty  would  be  impugned,  any  more  than  we  question  the  rates  offered  us  by 
the  gentleman  from  Fauquier,  or  the  honesty  of  the  road  that  furnished  them.  But  the 
classification  in  railroads  in  such  a  difficult  and  abstruse  matter  that  it  is  practically 
im.possible  for  an  outsider  to  get  a  correct  statement  of  rates  that  he  can  rely  upon 
unless  he  has  an  expert  to  make  the  examination  for  him. 

Therefore,  I  fail  to  be  fully  armed  with  intrastate  rates  as  I  am  with  interstate 
rates  and  for  the  reasons  just  alleged.  In  addition  to  that,  the  city  of  Danville  and  its 
citizens,  its  Business  Men's  Association  and  its  Tobacco  Association,  got  the  rates  that 
they  allege  and  charge  to  be  facts  in  their  petition,  largely  by  writing  to  merchants 
out  West  from  whom  they  bought  goods,  and  asking  for  a  statement  of  the  rates  that 
the  railroads  submitted  to  them.  We  had  to  go  to  all  that  trouble  and  all  that  expense 
before  we  could  get  facts  upon  which  to  base  our  petition.  In  addition  to  that,  to 
show  that  it  was  a  mere  demand  for  justice  at  the  hands  of  these  gentlemen,  we  had 
conference  after  conference  with  them.  We  went  to  Washington  city  at  our  own 
expense  to  confer  with  them.    We  called  upon  the  officials  of  these  railroads  and  had 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION"  OF  VIRGINIA. 


consultations  with  them  and  asked  for  an  adjustment,  and  a  fair  adjustment,  of  our 
freight  and  traffic  conditions.  We  had  conference  after  conference  with  them,  and  when 
at  last  we  announced  our  determination  to  begin  a  suit  before  the  Interstate  Commerce 
Commission,  Mr.  Gulp  and  Mr.  Finley  and  some  other  gentlemen  came  to  Danville  and 
met  the  Business  Men's  Association. 

The  newspapers,  the  Richmond  Times  and  I  think  possibly  the  Dispatch,  quoted 
Mr.  Finley  as  saying  before  the  Corporation's  committee  that  but  for  the  long  and 
short-haul  clause  of  the  Interstate  Commerce  Commission  the  conditions  at  Danville 
could  have  been  remedied.  Well  they  existed  before  the  Interstate  Commerce  Com- 
mission w^as  created,  on  February  14,  1887,  and  they  were  not  remedied.  When  that 
delegation  came  to  the  city  of  Danville  and  had  a  consultation  with  the-  leading  business 
men  of  the  city  in  the  room  of  the  Business  Men's  Association,  the  burden  of  Mr.  Fin- 
*  ley's  speech  w^as  "  You  cannot  have  any  remedy.  You  "will  have  to  take  what  you  have 
got,  and  if  you  are  not  willing  to  take  that  you  can  simply  lump  it,"  and  we  lumped  it. 

I  warn  this  Convention  to  know  that  the  long  and  short-haul  clause  was  not  in  exis- 
tence when  these  conditions  first  existed,  and  that  instead  of  receiving  any  offers  of 
conciliation  or  attempt  to  adjust  we  were  practically  told:  "We  do  not  care  anything 
about  your  complaints.  We  have  got  tbe  control  of  every  common  carrier  in  this  town, 
and  we  are  going  to  put  upon  you  just  exactly  what  you  will  bear,"  and  they  did. 

Now  let  us  get  to  the  proof. 

Mr.  Thorn:  On  the  point  that  w^hen  this  case  of  the  city  of  Danville  vs.  the  South- 
ren  railway  arose,  the  long  and  short-haul  did  not  exist. 

Mr.  Withers:  Oh,  no,  sir;  I  said  that  the  long  and  short-haul  of  the  Interstate 
Commerce  law,  which  was  approved  February  14,  1887,  did  not  exist  when  these  condi- 
tions existed  in  the  beginning  at  Danville;  in  other  words,  that  the  conditions  of  which 
we  complained  existed  in  Danville  before  the  long  and  short-haul  clause  of  the  Inter- 
state Commerce  law  was  enacted  into  law. 

This  complaint  was  made  in  1899,  but  the  conditions  existed  in  1886  and  prior  to 
that  time,  and  we  have  been  complaining  ever  since.  We  went  to  the  Interstate  Com- 
merce Commission  in  1887  and  1888  and  could  not  get  relief  because  our  petition  and 
bill  was  improperlj^  framed,  and  because  of  some  other  technical  matters;  but  I  want 
to  be  understood  as  saying  and  reiterating  that  the  conditions  existed  at  Danville"  of 
which  it  now  complains  prior  to  the  enactment  into  law  of  the  long  and  short-haul 
clause  of  the  Interstate  Commerce  law,  and.  therefore,  it  could  not  have  anything  to 
do  with  remedying  conditions  or  giving  us  relief. 

I  want  to  read  w^hat  is  a  practical  indictment  of  certain  railroads  here.  I  read  from 
paragraph  3  of  the  petition  of  the  City  of  Danville  in  that  suit: 

That  they  have  established  certain  basing  or  common  points  in  the  State  of  Vir- 
ginia to  which  they  deliver  property  transported  from  the  several  States  aforesaid — 

Eastern  States  and  Western  States — 

and  from  which  they  received  property  to  be  transported  to  the  several  States  aforesaid, 
for  less  rates  of  transportation  than  they  demand  and  receive  for  the  transportation  of 
similar  property,  under  substantially  similar  conditions,  to  and  from  other  points  on 
their  line  in  the  State  of  Virginia. 

That  is,  the  common  or  basing  points  have  better  rates  than  other  points  in  the 
State  of  Virginia,  to  which  similar  commodities  are  hauled  under  substantially  similar 
conditions,  and  that — which  is  not  in  the  charge — it  happens  that  the  Chesapeake  and 
Ohio  Railway  company  has  the  basing  points;  hence  its  patriotic  immolation  on  the 
altar  of  its  country. 

After  stating  that  they  have  less  rates  at  the  basing  or  common  points  than  they 
have  to  other  points,  it  goes  on  to  say: 

The  haul  and  distance  to  and  from  said  other  points  being  shorter  than  to  the  basing 
or  common  points,  by  which  the  defendants  make  and  give  undue  and  unreasonable 
preference  and  advantage  to  the  persons  and  locality  at  such  basing  or  common  points. 


23,76  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  03?  VIRGINIA. 


And  charging  at  length  that  this  subjects  the  persons  at  the  other  points  to  unjust 
discrimination. 

This  section  is  not  admitted  by  Mr.  Pinley  in  his  answer  filed  for  the  Southern 
railway;  but  now  let  us  see  what  is  said  about  it. 

It  denies  that  the  defendants  have  by  agreement  between  them  established  in  the 
State  of  Virginia  certain  basing  or  common  points  to  which  they  deliver  property  trans- 
ported from  the  several  States  aforesaid,  and  from  which  they  receive  property 
to  be  transported  to  the  several  States  aforesaid,  for  less  rates  of  transportation  than 
they  demand  and  receive  for  the  transportation  of  similar  property  under  substantially 
■similar  conditions  to  and  from  other  points  on  their  lines  in  the  State  of  Virginia. 

The  denial  is  largely  technical.    It  is  almost  entirely  technical,  from  the  fact  that 
it  was  stated,  or  rather  given  in  evidence  by  Mr.  Gulp,  that  the  Chesapeake  and  Ohio  ' 
railway,  some  time  in  the  eighties,  established  of  its  own  volition  certain  rates  along 
its  lines  to  which  the  other  rates  had  to  conform;  hence,  there  was  lacking  in  it  the 
element  of  "  agreement  "  in  the  formation  of  a  basing  or  common  point. 

The  fourth  charge  specifies  that  among  these  basing  or  common  points  are  the 
cities  of  Lynchburg  and  Richmond,  Virginia,  the  former  located  on  the  Alexandria 
branch  of  the  Southern,  of  course,  or  Virginia  Midland  railway,  and  the  city  of  Rich- 
mond, wherein  this  Convention  holds  its  sittings.    That  is  also  denied. 

Fourth.  That  it  denies  that  among  the  basing  or  common  points  established  by  the 
defendants,  and  to  which  they  make  and  give  the  preference  and  advantage  in  trans- 
portation as  aforesaid,  are  the  cities  of  Lynchburg  and  Richmond,  Virginia. 

Then  it  tells  where  they  are  located — 

And  it  denies  that  the  Southern  Railway  company  is  or  ever  was  known  as  the 
Richmond  and  Danville  Railway  company — 

Another  technical  denial,  because  I  was  a  member  of  the  Legislature  that  passed 
the  charter  of  the  Southern  Railway  company,  which  took  over  to  itself  the  privileges 
and  franchises  of  Uie  Richmond  and  Danville,  of  the  West  Point  Terminal  company. 

It  again  makes  a  technical  denial  of  what  was  charged  by  us  in  that  fourth  clause- 
that  prior  to  the  acquiring  by  the  Richmond  and  Danville  railway  of  the  old  Washing- 
ton City,  Virginia  Midland  and  Great  Southern  railroad,  running  from  Washington  to 
Alexandria  to  Danville,  we  had  such  rates  as  these  common  or  basing  points  now  have. 

I  think  it  will  be  seen  that  that  denial  is  largely  technical,  and  it  further  denies 
that  it  had  in  its  possession  such  documents  or  papers  as  would  give  it  the  information 
asked  for,  or  rather,  would  give  it  information  of  what  was  charged;  and  yet  Mr. 
Gulp,  in  order  to  break  the  force  of  that  charge,  produced  certain  freight  rates  prior  to 
the  acquisition  of  the  Washington  City,  Virginia  Midland  and  Great  Southern  railroad 
by  the  Richmond  and  Danville,  in  order  to  show  that  we  did  not  have  those  rates. 

Tlie  fifth  charge  is — and  here  I  do  not  quote  word  for  word,  for  abbreviation— 
that  the  Southern  railway  and  certain  other  railways  and  steamship  companies,  the 
Merchants'  and  Miners',  the  Old  Dominion,  the  Clyde,  Philadelphia  and  Norfolk,  the 
Baltimore,  Chesapeake  and  Richmond  Steamboat  company,  the  Baltimore  and  Norfolk 
line,  and  the  Baltimore  Steam  Packet  company,  common  carriers,  &c.,  engaged  in  the 
transportation  of  property  under  a  common  arrangement  from  New  York,  Pennsylvania, 
Maryland  and  other  States,  by  way  of  Norfolk  or  Pinner's  Point,  Virginia,  to  the  cities 
of  Danville  and  Lynchburg,  Virginia,  and  from  those  cities  back  again  by  the  same 
route  to  the  Northern  cities,  "  have  established  and  put  in  force  rates  of  transportation 
by  and  under  which  property  is  transported  by  them  from  said  northern  and  eastern 
points  through  the  city  of  Danville  to  the  city  of  Lynchburg,  66  miles  further  from  the 
place  of  shipment  than  the  city  of  Danville,  and  delivered  for  less  rates  of  transporta- 
tion than  similar  property  under  similar  conditions  and  circumstances  is  transported 
from  said  northern  and  eastern  points  over  the  same  route  and  delivered  to  them  by  the 
complainants,  the  city  of  Danville  and  others." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2277 


Now,  let  us  see  why  it  is  wise  right  here  to  finish  the  reasons  given  by  me  to  use 
these  interstate  rates  as  examples  of  injustice  and  extortion.  As  I  have  already  told 
you,  a  corporation  of  a  common  carrier  that  will  extort,  hy  using  unjust  interstate  rates 
in  violation  of  a  law  will,  of  course,  not  hesitate  to  extort  excessive  and  unjust  intra- 
state rates  when  it  practically  violates  no  law  that  can  be  enforced. 

Lastly,  the  authenticity  of  the  figures  should  appeal  to  the  Convention  as  justifjang 
us  in  using  them,  as  a  reason  to  say  that  the  intrastate  rates  from  the  scattered 
instances  that  1  will  be  able  to  cite  to  you  are  just  as  unjust  and  excessive  as  the  inter- 
state rates. 

Then  the  third  reason.  Such  authentic  data  cannot  be  easily  obtained  by  men  in 
my  position.  The  loss  of  statistics  is  indeed  a  serious  thing  to  me,  for  common  carriers 
do  not  stand  ready  to  make  out  for  me  at  my  request  long  tables  that  will  give  me  the 
means  of  showing  that  they  have  been  unjust  and  oppressive  in  their  freight  and  traffic 
rates  upon  the  various  citizens  of  the  State  of  Virginia. 

Fourth,  the  control  of  the  intrastate  rates  will  be  a  potential  factor  in  causing  a 
reasonable  consideration  of  complaints  about  the  interstate  rates,  and  no  more  conclu- 
sive proof  could  be  adduced  than  the  instance  cited  by  the  gentleman  from  Halifax  of 
the  action  of  the  Georgia  Railway  Commission  when  coal  was  arbitrarily  raised  25 
cents  a  ton,  and  the  Hon.  L.  :M.  Trammel  read  his  lecture  to  the  common  carriers  of 
Georgia,  and  after  it  no  more  was  heard  about  the  unjust  increase  of  the  coal  rate. 

And  again  I  use  the  interstate  rates,  because  they  have  been  admitted,  both  in  a 
formal  answer  and  in  a  sworn  deposition,  by  those  authorized  to  speak  for  the  corpora- 
tions, charged  of  being  guilty  of  the  high  crimes  and  misdemeanors  against  the  citizens 
of  Virginia.  They  have  been  proved  and  admitted.  The  tribunal  to  which  we  appealed 
our  case  has  twice  rendered  its  decision.  It  first  rendered  it  in  our  favor,  and  then, 
upon  a  petition  from  the  railroad  company  for  a  rehearing,  it  granted  it,  and  after 
long  depositions  by  the  representatives  of  the  respective  roads,  confirmed  its  original 
judgment  and  decision  and  ordered  a  cessation  of  those  unjust  exactions;  and  yet  so 
little  is  the  power  of  that  commission,  so  ineffective  are  its  provisions,  that  though  that 
order  was  issued  more  than  one  year  ago.  the  citizens  of  Danville  have  received  no 
relief  from  their  victory,  won  in  the  proper  forum  to  which  the  law  referred  them^ 
but  they  have  to  go  through  the  long,  tedious  and  costly  process  of  appeal  to  the  dis- 
trict court,  the  Circuit  Court  of  Appeals  and  the  Ignited  States  Supreme  Court,  before 
they  can  get  relief. 

Now,  gentlemen  of  the  committee,  with  these  facts  before  you,  with  this  decision 
offered  for  your  inspection  under  that  law,  I  ask  you  if  it  is  not  an  overwhelming  and 
decisive  reason  for  not  receiving  or  even  considering  seriously  this  minority  report 
which,  as  I  understand  it,  if  v/e  had  been  before  it,  would  leave  us  just  where  the  Inter- 
state Commerce  Commission  has  left  us  and  we  would  have  to  depend  upon  the  process 
of  a  circuit  court  and  a  Commonwealth's  attorney,  or  the  attorney-general,  and  then  of 
the  Supreme  Court  of  Appeals,  before  the  decision  would  be  worth  a  baubee  to  us;  and 
we  have  the  only  advantage  under  the  minority  report  of  having  less  appeals  than  the 
Interstate  Commerce  act  gives  us,  and  the  disadvantage  of  not  being  able  to  make  the 
Commonwealth,  which  ought  to  protect  its  citizens,  bear  the  burden  of  seeing  that 
prot0<>tion  is  afforded,  though  that  power  is  left  to  the  Legislature,  by  the  minority 
report. 

Now,  in  the  face  of  these  facts,  in  the  face  of  this  decision  by  this  tribunal— and 
its  decision  will  disclose  some  facts  most  unhealthy  for  the  paying  of  dividends  on 
certain  sorts  of  stocks— with  these  facts  proved,  with  these  discriminations  admitted, 
with  this  burden  greater  than  the  burden  of  State  taxation  upon  the  citizens  of  the 
great  Commonwealth  of  Virginia,  with  a  verdict  rendered  and  the  victory  won,  we  re- 
main in  suspenso;  and  these  gentlemmen  of  the  minority  seriously  offer  for  the  con- 
sideration of  the  Convention  a  report  that  will  compel  us  to  do  what  is  now  being  done 
in  that  case,  go  into  the  very  lowest  court  of  the  State  judiciary,  except  the  magistrate, 
and  fight  our  way  to  the  Supreme  Court  of  Appeals  of  Virginia,  in  order  that  justice  may 
be  done  and  wrongs  may  be  righted. 


23,78 


DEBATES  OF  THE  CONSTITUTIOis'AL  CONVENTION  OE  VIRGINIA. 


Seriously?  Why,  but  for  the  arguments  of  my  distinguished  friends  from  Norfolk 
and  Fauquier,  I  would  thinly  they  were  perpetrating  upon  this  Convention  a  good-natured 
jolve.  Seriously?  I  would  infinitely  rather  have  the  bills  and  their  chances  of  enact- 
ment now  sleeping  in  the  pigeon-holes  of  the  Senate  committee  on  Roads  and  Internal 
Navigation  than  to  have  the  hope  of  relief  under  this  marvellous,  funny,  opera  bouffe 
minority  report.  It  means  nothing,  and  I  am  afraid  would  prevent  the  enactment  of 
anything  into  law,  even  by  the  Legislature. 

But  to  the  charge.  I  am  sorry,  gentlemen,  both  for  you  and  myself  that  I  have 
to  burden  you,  but  I  want  the  people  of  Virginia  to  know  the  facts  under  which  we  got 
our  verdict.  I  want  them  to  know  the  facts  that  attend  the  injustice  and  oppression  of 
common  carriers  upon  them,  even  without  their  knowledge.  Take  a  farmer  in  the 
county  of  Fauquier.  He  buys  his  fertilizer,  and  he  goes  to  the  depot  two  or  three  days 
afterward  to  get  it.  It  has  not  come.  He  becomes  discouraged.  He  waits  three  or 
four  or  five  days  and  goes  again.  What  does  he  find?  If  the  conditions  are  like  they 
are  in  my  part  of  Virginia,  he  finds  demurrage  charges  because  he  did  not  take  it  out 
the  day  it  got  there,  though  he  expected  it  several  days  sooner,  on  information  from  the 
railroad,  before  it  did  come,  and  was  there  on  the  day  that  he  expected  it  to  come. 

Now,  gentlemen,  here  is  a  table,  admitted  by  Mr.  J.  M.  Gulp,  admitted  by  W.  W. 
Finley,  second  vice-president  of  the  Southern  railway,  as  I  shall  read  to  you  in  a  minute, 
that  gives  the  rates  from  eastern  cities — Boston,  Providence,  New  York,  Philadelphia 
and  Baltimore — to  Lynchburg  and  Danville  on  first,  second,  third,  fourth,  fifth,  sixth 
and  A,  B,  C,  D,  E,  F,  and  H  classes  of  goods,  carload  lots,  less  than  carload  lots,  and  so 
on. 

Now  let  us  see.  They  haul  those  goods  from  Norfolk  by  the  Atlantic  and  Danville, 
or  by  the  Coast  Line  down  to  Rocky  Mount  and  to  Selma,  until  they  take  the  North 
Carolina  railroad,  which  the  Southern  rents  or  leases,  on  which  it  pays  dividends  (and 
the  Southern  has  just  paid  the  biggest  dividends  that  have  been  paid  in  its  history,  so  I 
saw  stated  in  a  paper  just  about  a  month  ago),  through  Greensboro  to  Danville  and 
then  to  Lynchburg;  and  they  charge  Lynchburg  54  cents  for  the  haul  that  way  from 
Boston  and  Providence,  and  Danville  71  cents,  on  goods  that  are  first  class,  a  difference 
in  favor  of  Lynchburg  of  17  cents — the  long  and  short-haul  clause  defiantly  and 
flagrantly  violated.  They  charge  on  class  F,  flour  per  barrel,  36  cents  to  Lynchburg, 
56  cents  to  Danville — 20  cents  more  to  haul  it  through  Danville  than  to  take  it  off  at 
Danville. 

They  charge  on  goods  of  the  fifth  class  25  cents  to  Lynchburg,  38  cents  to  Danville — 
13  cents  increase. 

The  charges  from  New  York  and  Philadelphia  to  Lynchburg,  for  goods  of  the  first 
class,  are  54  cents,  and  to  Danville  66  cents. 

For  goods  of  the  F  class,  36  cents  to  Lynchburg,  46  cents  to  Danville — a  difference 
of  10  cents. 

For  boots  and  shoes,  somewhat  necessary  to  the  comfort  and  welfare  of  people, 
they  charge  from  New  York  to  Lynchburg  45  cents,  and  to  Danville  66  cents,  or  21 
cents  more  to  take  it  off  at  Danville  than  to  haul  it  66  miles  farther  to  Lynchburg. 

How  about  Baltimore?  For  goods  of  the  first  class,  around  all  that  route  to  Nor- 
folk, Pinner's  Point,  up  the  Atlantic  and  Danville,  or  down  into  North  Carolina  by 
Rocky  Mount,  Selma,  Raleigh,  Greensboro,  and  Danville,  and  then  on  to  Lynchburg— 
let  us  see  what  they  charge  from  Baltimore.  They  charge  49  cents  to  Lynchburg  and 
60  cents  to  Danville,  first  class;  second  class,  42  and  52  cents  respectively;  third  class, 
33  and  41  cents  respectively.  19  and  29  cents  respectively;  F  class,  in  which  flour  is 
always  included,  as  I  understand  it,  32  and  38  cents  respectively,  and  boots  and  shoes, 
40  and  60  cents  respectively.  It  would  pay  us  to  send  everything  we  get  on  to  Lynch- 
burg and  then  haul  it  back  there,  but  for  an  "  arbitrary  "  charge  put  upon  the  haul. 

Now,  I  do  not  want  to  take  up  any  more  time  with  that  table,  but  I  want  to  read 
Mr.  Finley's  admission: 

That  it  admits  that  the  Southern  Railway  company,  the  Merchants'  and  Miners' 


DEBATES  or  THE  C0X5TITUTI0XAL  COXVEXTIOX  OF  VIEGIXIA. 


2-2  79 


Transportation  company,  the  Old  Dominion  Steamship  company,  the  Clyde,  Philadelphia 
and  Norfolk  Steamship  Line — 

&c.,  as  I  have  already  named  them — 

are  engaged  in  the  transportation  of  property  under  a  common  arrangement  by  a  con- 
tinuous carriage  from  points  in  the  New  England  States,  New  York,  Pennsylvania, 
Maryland  and  other  States,  by  way  of  Norfolk  or  Pinner's  Point,  Virginia,  to  the  cities 
of  Danville  and  Lynchburg,  Virginia. 

Since  this  was  filed  they  have  acquired  the  Atlantic  and  Danville,  and  presumably 
make  the  haul  by  that  shorter  route.  It  does  not  affect  the  discrepancy  against  Danville, 
because  Danville  is  still  66  miles  from  Lynchburg,  whether  you  come  from  North 
Carolina  or  stay  in  Virginia. 

And  from  said  last  mentioned  cities  back  over  the  same  route  to  said  northern  and 
eastern  points;  and  it  admits  that  the  said  defendants  have  established  and  put  in 
force — 

I  insert  the  word    in  "  before    force,"  as  it  was  accidentally  omitted  here — 

rates  of  transportation  by  and  under  which  property  is  transported  by  them  from  said 
northern  and  eastern  points  through  the  city  of  Danville  to  the  city  of  Lynchburg,  66 
miles  further  from  the  place  of  shipment  than  the  city  of  Danville,  which  rates  are  less 
than  the  rates  charged  to  the  city  of  Danville  for  the  transportation  of  property  from 
said  nothern  and  eastern  points  over  the  same  route;  but  it  denies  that  shipments  from 
said  northern  and  eastern  points — 

Now,  look  at  the  technicality  of  this  denial — 

but  it  denies  that  shipments  from  said  northern  and  eastern  points  by  the  lines  of  the 
said  defendants,  consigned  to  the  city  of  Danville  and  to  the  city  of  Lynchburg,  are 
transported  under  substantially  similar  circumstances  and  conditions. 

Lynchburg  is  a  basing  point,  and  it  did  not  regard  the  Atlantic  and  Danville  at 
that  time  as  enough  of  a  rival  to  consider  that  it  could  make  Danville  a  basing  point. 

It  admits  that  the  comparison  of  rates  so  charged  as  shown  upon  the  table  printed 
on  page  5  of  the  said  petition  is  a  correct  comparison  of  the  rates  so  charged  by  the 
defendants. 

It  admits,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  that  table,  not  one- 
third  of  which  I  have  read  to  you,  is  absolutely  correct,  and  is  a  fair  and  frank  state- 
ment of  the  excess  charges  they  impose  on  my  city  and  the  citizens  thereof.  I  will  tell 
you  what  that  admission  involves.  It  means  that  the  citizens  of  Pittsylvania  county, 
the  citizens  of  Halifax  county,  and  the  citizens  of  every  county — I  am  informed,  but 
do  not  state  it  as  absolutely  authentic — ^between  Danville  and  the  Atlantic  Coast  Line 
in  Virginia,  labor  under  exactly  the  same  discriminations,  or  worse;  and  that  from 
Danville  west  they  labor  under  practically  the  same  discriminations,  or  worse.  And 
yet,  under  that  condition  of  affairs,  with  an  order  hanging  over  them  for  more  than  a 
year,  they  still  definantly  and  flagrantly  violate  the  law.  We  are  asked,  by  the  eminently 
able  minority  of  this  committee,  to  adopt  a  report  that  would  leave  us  under  substantially 
the  same  circumstances  and  conditions  as  to  intrastate  rates. 

Again  we  charge  "  That  these  defendants  " — the  same  companies,  common  carriers 
by  land  and  water — "  have  established  and  put  in  force  over  their  several  lines  or  routes 
from  New  Orleans,  Louisiana,  to  Danville,  Lynchburg,  and  Richmond,  Virginia,  the 
following  rates  or  charges,  per  hundred  pounds  on  molasses,  sugar,  rice  and  coffee." 

Remember,  gentlemen,  they  haul  it  right  through  Danville  to  get  to  Lynchburg. 
66  miles  further,  and  they  haul  it  right  through  Danville  to  get  it  to  Richmond,  141 
miles  further.  So  careful  and  so  accurate  have  these  statisticians  been  that  wEen 
we  said  Richmond  was  140  miles  northeast  of  Danville  they  correct  us  and  say  it  is  a 
mistake — that  it  is  141  miles  northeast  of  Danville. 


2280 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


We  charge,  gentlemen,  in  this  petition,  that  the  rate  for  hauling  molasses,  sugar, 
rice  and  coffee  is:  "On  molasses  from  New  Orleans  to  Richmond,  26  cents;  sugar,  32 
cents;  rice,  32  cents;  coffee,  40  cents.  On  the  same  commodities,  from  New  Orleans  to 
Lynchburg,  Virginia,  the  same  rate  as  to  Richmond,  Virginia.  On  the  same  commod- 
ities, from  New  Orleans  to  Danville,  \^irginia,  37  cents,  43  cents,  43  cents  and  51  cents 
respectively." 

They  charge  to  Danville  37  cents  for  molasses,  against  26  to  Richmond,  43  cents 
for  sugar,  as  against  32,  43  cents  for  rice,  as  against  32,  and  51  cents  for  coffee,  as 
against  40.  In  other  words,  for  the  privilege  of  shortening  the  haul  and  allowing  us 
to  unload  our  goods,  without  cost  to  the  railroad,  and  saving  them  a  66  mile  haul  in 
one  instance  and  141  miles  haul  in  the  other,  they  charge  us  excess  rates,  varying  all  the 
way  from  8  to  12  cents  per  hundred  pounds  on  the  commodities  named. 

And  yet  they  come  with  an  answer,  sv/orn  to  by  W.  W.  Finley,  second  vice-president 
of  the  Southern  railway,  and  signed  by  Edward  Baxter  and  Fairfax  Harrison,  solici- 
tors— we  have  heard  of  Mr.  Baxter  before,  and  a  more  able,  courteous  and  fair  lawyer 
I  never  saw  in  any  case — and  they  say,  in  the  sixth  paragraph  of  their  answer: 

And  it  admits  that  the  defendants,  the  Southern  Railway  company,  the  New  Orleans 
and  Northeastern  Railway  company,  the  Louisville  and  Nashville  railway,  the  Western 
Railway  of  Alabama,  the  Atlanta  and  West  Point  Railway  company  and  the  Central 
of  Georgia  Railway  company,  have  established  and  put  in  force  over  their  several  lines, 
or  routes,  from  New  Orleans,  Louisana,  to  Danville,  Lynchburg  and  Richmond,  Virginia, 
the  following  rates  or  charges  per  hundred  pounds  on  molasses,  sugar,  rice  and  coffee: 
On  molasses,  from  New  Orleans  to  Richmond,  25  cents;  sugar,  32  cents;  rice,  32  cents; 
coffee,  40  cents.  On  the  same  commodities  from  New  Orleans  to  Lynchburg,  Virginia, 
the  same  rates  as  to  Richmond,  Virginia.  On  the  same  commodities  from  New  Orleans 
to  Danville,  Virginia,  37  cents,  43  cents,  43  cents  and  51  cents  respectively.  And  it 
admits  that  the  transportation  of  said  commodities  to  both  Richmond  and  Lynchburg 
can  be  made  and  is  made  through  Danville,  and  that  the  distance  from  New  Orleans 
by  such  route  is  141  miles  (not  140  miles  as  alleged),  and  from  New  Orleans  to  Lynch- 
burg, 66  miles  greater  than  the  distance  from  New  Orleans  to  Danville.  But  it  denies 
that  the  circumstances  and  conditions  surrounding  the  shipments  made  from  New  Orleans 
to  Lynchburg  and  Richmond  respectively,  via  Danville,  are  substantially  similar  to  the 
circumstances  and  conditions  surrounding  shipments  from  New  Orleans  to  Danville.  And 
it  admits  that  the  difference  in  such  rates  against  Danville  and  in  favor  of  Lynchburg 
and  Richmond,  jshown  above  to  be  from  8  to  12  cents  per  hundred  pounds  on  each  of  the 
ccmmodities  mentioned  in  this,  paragraph,  is  demanded  and  received  by  this  defendant 
from  consignees  in  the  city  of  Danville  for  the  transportation  of  said  commodities  from 
New  Orleans  to  Danville. 

And  yet  v/ith  that  admission,  sworn  to  by  the  second  vice-president  of  the  Southern 
Railway  company,  and  admitted  by  its  general  manager  in  his  deposition  given  in  the 
same  case,  we  are  kept  suspended  in  mid-air,  although  we  have  won  our  case  and  got- 
ten our  verdict  and  decision,  in  order  that  the  railroad  companies,  forsooth,  by  appeal, 
may  wear  us  out,  in  money  and  patience,  so  that  the  law  may  never  be  enforced.  And 
this  opera-bouffe  minority  report  wants  to  leave  us,  as  to  Virginia  rates,  practically  just 
where  we  are  now  as  to  interstate  rates. 

Again  we  charge  that  these  defendants,  the  Southern  Railway  company,  the 
Chicago,  Indianapolis  and  Louisville  Railway  company,  the  Cleveland,  Chicago  and  St. 
Louis  Railway  company,  the  Baltimore  and  Ohio  Southwestern  Railway  company,  the 
Cincinnati,  Hamilton  and  Dayton  Railway  company,  the  Louisville,  Evansville  and  St. 
Louis  Railway  company,  the  Cincinnati  Southern  Railway  company,  the  Louisville  and 
Nashville  Railroad  company,  the  Chicago  and  Eastern  Illinois  Railway  company,  the 
Evansville  and  Terre  Haute  and  the  Evansville  and  Indianapolis  Railway  company  and 
the  Nashville,  Chattanooga  and  St.  Louis  Railway  company,  have  done  this  remarkable 
thing — 

Have  established  and  put  in  force  over  their  several  lines,  or  routes,  from  Chicago, 
Illinois;  Kenosha,  Wisconsin;  Grand  Rapids,  Michigan,  and  Detroit,  Michigan,  to  Dan- 
ville. Richmond  and  Lynchburg,  Virginia,  the  following  rates,  or  charges,  per  100  pounds 
on  flour,  grain,  meats  and  lard,  potatoes,  leather,  furniture,  and  per  ton  of  2,000  pounds 
on  fertilizers: 


DEBATES  OF  THE  CON'STITUTIOIsTAL  COXVEXTIOX  OF  VIRGINIA. 


2281 


Now,  gentlemen  of  the  Convention,  do  you  not  know  what  that  means?  With 
possibly  two  or  three  exceptions  there  is  not  a  man  on  this  floor  who  knows  what  it 
means.  It  means  that  these  common  carriers,  since  the  Southern  Railway  company  has 
acquired  certain  roads  through  North  Carolina,  Tennessee  and  Kentucky,  take  a  car- 
load of  stuff  at  Chicago  or  Lousiville  and  bring  it  us  by  Louisville  or  Cincinnati,  and 
down  through  Nashville  or  Jellico  to  Knoxville,  Tennessee,  up  through  East  Tennessee 
to  Morristown,  from  Morristown  to  Paint  Rock,  then  to  Asheville,  then  to  Hickory,  then 
to  Salisbury  and  Greensboro,  North  Carolina,  then  down  to  Danville,  and  on  through  to 
Richmond  and  Lynchburg,  with  these  discriminations  in  rates  in  favor  of  the  latter 
two  cities. 

On  flour,  from  Grand  Rapids,  Michigan,  to  Lynchburg  and  Richmond,  "Virginia, 
cents  per  barrel;  on  flour,  from  Grand  Rapids,  Michigan,  to  Danville,  Virginia,  56  cents 
per  barrel. 

And  excess  charge  of  24  cents  per  barrel  for  a  haul  G6  or  141  miles  shorter  than  the 
other. 

On  leather,  from  Kenosha,  Wisconsin,  32  cents  per  100  pounds  in  carload  lots  and 
62  cents  per  100  pounds  in  less  than  carload  lots;  to  Lynchburg  and  Richmond,  Virginia, 
and  from  the  said  point  to  Danville,  Virginia,  50  cents  per  hundred  pounds  in  carload 
lots  and  74  cents  per  100  pounds  in  less  than  carload  lots. 

From  Chicago  to  Lynchburg  and  Richmond,  on  meat  and  lard,  27  cents  per  100' 
pounds  in  carload  lots;  from  Chicago  to  Danville  39  cents  per  100  pounds  in  carload 
lots. 

They  haul  it  around  nearly  in  a  circle,  and  get  back  where  they  started,  and 
incidentally  they  pass  through  my  city  as  a  point  on  the  circle.  But  that  is  not  the 
worst  thing: 

On  fertilizers,  from  Chicago,  Illinois,  to  Lynchburg  and  Richmond,  Virginia,  $3.40 
per  ton;  on  fertilizers,  from  Chicago  to  Danville,  ?4.80  per  ton. 

One-third  more.  But  that  is  not  the  worst.  I  will  not  bother  with  the  rate  ott. 
potatoes,  but  will  next  take  grain. 

On  grain,  from  Chicago  to  Lynchburg  and  Richmond,  17  cents  per  100  pounds;  on 
grain,  from  Chicago  to  Danville,  36  cents  per  100  pounds. 

More  than  double;  and  yet  we  are  66  miles  nearer  than  one  and  141  miles  nearer' 
than  the  other  to  the  point  of  shipment. 

On  furniture,  from  Detriot,  Michigan,  per  100  pounds,  to  Lynchburg  and  Richmond, 
bureaus  and  washstands,  551  cents;  toilet  frames  and  glass,  55i  cents;  bedsteads  and' 
sides.  47i  cents;  bed-slats  36  cents.  On  similar  furniture  from  Detroit,  Michigan,  to 
Danville,  83i  cents,  91J  cents,  75  cents  and  64  cents  respectively.    On  cane-seat  chairs — 

Which  some  of  us  like  to  luxuriate  in — 

From  Grand  Rapids,  Michigan,  to  Richmond  and  Lynchburg,  $1.72J  per  100  pounds; 
on  v/ood  and  leather  chairs.  $1.38  per  100  pounds;  on  similar  furniture  from  the  same 
place  to  Danville,  .?2.G0i  and  $1.72^  per  100  pounds. 

I  want  to  tell  you,  gentlemen,  that  the  seventh  clause  of  this  answer  admits  that 
the  defendants,  including  the  Southern  Railway  company,  the  Nashville,  Chattanooga" 
and  St.  Louis  Railway  company  and  other  lines  named,  have  established  and  put  in  force 
over  their  several  routes,  from  Chicago  and  points  named,  the  rates  which  I  have 
mentioned  per  100  pounds  on  flour,  grain,  meats,  lards,  potatoes,  leather,  furniture  and 
fertilizers  in  tons  of  2,000  pounds,  and  v/ithout  taking  the  time  of  this  committee  to- 
read  it  again,  I  will  say  that  they  are  exactly  the  same  as  charged  in  the  bill  of  indict- 
ment— for  that  is  what  it  amounts  to — and  will  be  submitted  to  any  gentleman  whc 
desires  to  inspect  them. 

And  it  admits  that  each  of  the  said  commodities  is  transported  by  this  defendant 
144 — Const.  Deb. 


2282  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

over  its  line,  or  route,  from  the  said  cities  aforesaid  to  the  cities  of  Lynchburg  and 
Richmond,  through  the  city  of  Danville — the  city  of  Danville  being  66  miles  nearer  to 
the  place  of  shipment  than  Lynchburg,  and  140  miles  nearer  than  Richmond — but  it 
denies  that  the  circumstances  and  conditions  of  transportation  to  Danville,  on  the  one 
hand,  and  to  Richmond  and  Lynchburg,  on  the  other  hand,  are  substantially  similar. 
And  it  admits  that  the  difference  against  Danville,  and  in  favor  of  Lynchburg  and  Rich- 
mond, as  alleged  above,  are  demanded  and  received  by  this  defendant  from  consignees 
in  the  city  of  Danville. 

Again  we  charge  and  forced  them  to  admit  in  answer  sv^^orn  to  by  the  second  vice- 
president  of  the  Southern  railway  that  this  same  Southern  Railway  company  trans- 
ported over  its  own  and  connecting  lines  from  Louisville  and  Frankfort,  Kentucky,  and 
Chattanooga,  Tennessee,  to  Danville,  Virginia,  certain  goods  for  which  the  following 
rates  and  compensation  were  charged: 

On  metallic  paint,  from  Chattanooga,  Tennessee,  24  cents  per  100  pounds  to  Danville 
and  to  Lynchburg  and  Richmond,  although  carried  directly  through  Danville,  15  cents 
per  100  pounds  for  the  same  thing. 

On  flour,  in  barrels,  from  Louisville  and  Frankfort,  Kentucky,  44  cents  per  barrel, 
and  to  Lynchburg  and  Richmond,  going  through  Danville  and  the  already-named  dis- 
tances farther  on  to  the  north  and  northeast,  29  cents  per  barrel. 

On  Hour  in  sacks,  from  Frankfort,  Kentucky,  to  Danville,  22  cents  per  100  pounds 
in  carloads,  and  to  Richmond  and  Lynchburg,  14J  cents. 

On  grain,  from  Louisville,  Kentucky,  to  Danville,  19  cents  per  100  pounds,  and  to 
Richmond  and  Lynchburg,  through  Danville,  10  cents,  making  the  same  hauls,  down 
through  Kentucky  and  Tennessee,  the  mountains  of  East  Tennessee,  the  mountains  of 
Western  North  Carolina  and  down  that  same  route  to  Salisbury,  up  the  main  line  of 
the  Southern  railway  to  the  city  of  Danville  and  then  on  to  Lynchburg  and  Richmond. 

That  charge  is  specifically  admitted  in  the  eighth  section  of  the  answer,  and  that 
answer  is  sworn  to.  It  (the  answer)  again  specifies  the  charges  as  laid  down  in  the 
petition,  and  it  again  admits  that  the  distances  are  correct,  but  it  says  that  it  does  not 
haul  them  under  similar  or  substantially  similar  circumstances  and  conditions.  I  think 
I  can  show  you  what  that  means  before  I  get  through. 

The  ninth  section  of  the  complaint,  and  the  last  one  with  which  I  shall  burden 
your  patience  and  attention,  charges  that  these  same  railroads,  or  certain  of  them, 
"  charge  and  receive  from  persons  in  the  cities  of  Richmond  and  Lynchburg,  Virginia, 
for  the  transportation  of  leaf  tobacco,"  of  which  we  manufacture  and  sell  some  quantities 
to  the  West,  one  of  our  great  markets,  at  such  rates  in  favor  of  Richmond  and  Lynch- 
burg and  against  Danville  as  to  make  it  extortion  and  oppression.  How  do  they  trans- 
port that  tobacco? 

If  they  hauled  it  from  Danville  to  Lynchburg,  thence  west  over  the  Norfolk  and 
Western  or  Chesapeake  and  Ohio  railroad  or  hauled  it  from  Danville  to  Burkeville  and 
there  delivered  it  to  the  Norfolk  and  Western,  or  hauled  it  from  Danville  to  Richmond 
and  there  delivered  it  to  the  Chesapeake  and  Ohio,  or  any  other  road  going  West,  and 
charged  us  more  for  it,  we  could  not  say  one  word,  provided  it  v/as  a  reasonable  increase 
of  charge  for  the  extra  haul.  But  what  we  charge  here  is  that  they  take  a  hogshead,  or 
a  thousand  hogshead,  of  tobacco,  put  them  into  the  necessary  number  of  cars,  either  at 
Lynchburg  or  at  Richmond,  G6  and  141  miles,  respectively,  further  away,  bring  it  from 
Richmond  down  the  line  of  the  Richmond  and  Danville  branch  of  the  Southern  railway, 
through  Danville,  or  if  from  Lynchburg  down  the  Virginia  Midland  division,  through 
Danville,  and  take  that  trainload  of  cars  through  Danville  to  Reidsville  and  Greensboro, 
Salisbury,  Round  Knob,  Asheville,  Morristown  and  Jellico,  on  up  to  Louisville,  Kentucky, 
then  to  Chicago,  Illinois,  or  St.  Louis  Missouri,  and  charge  us,  although  we  are  much 
nearer  the  point  of  destination,  the  following  extortionate  rates:  Through  Danville  to 
Louisville,  Kentucky,  24  cents  per  100;  while  they  charge  for  hauling  the  same  thing  from 
Danville  to  the  same  points  40  cents  per  100  pounds.  I  have  heard  it  argued  so  plausibly, 
so  speciously,  so  suavely  and  so  smoothly,  that  I  could  imagine  the  gentleman  making  the 
^argument  had  one  hand  on  my  shoulder,  and  with  the  other  was  rubbing  me  down, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2283 

that  there  was  a  wonderful  development  in  Danville  in  the  tobacco  industry,  notwith- 
standing these  discriminations.  I  said  to  him  that  God  Almighty  happened  to  make 
a  place  for  a  town  in  the  geographical  center  of  the  tobacco  belt,  and  happened  to  put 
people  there  who  would  fight  against  such  discrimination,  and  who,  in  spite  of  them, 
had  built  up  as  progressive  a  town  as  there  is  in  this  State  to-day.  The  man  who  has 
lost  one  arm,  and  develops  the  other  to  the  highest  degree,  does  it  because  he  has  to 
overcome  the  difficulty  and  impediment,  and  not  because  of  that  difficulty  or  impediment. 
They  come  to  us  and  say:  "  You  fellows  have  no  right  to  complain.  You  sell  more  leaf 
tobacco  than  Lynchburg  and  Richmond  combined."  I  say,  "  Yes,  because  you  charge 
the  farmer  so  much  to  get  to  the  other  points  that  he  has  got  to  unload  the  hogshead 
at  the  nearest  one;  and  another  reason  is  that  we  are  in  the  geographical  center,  north, 
south,  east  and  west,  of  the  Virginia  and  North  Carolina  bright  tobacco  leaf  belt,  and 
they  come  to  the  center,  just  exactly  as  the  whirlwind  revolves  around  the  vacuum  that 
is  in  its  midst.  They  come  there  in  spite  of  you,  and  not  because  of  your  great  kind- 
ness." 

Another  plausible  statement,  which  I  hope  to  be  able  to  explain  with  some  satis- 
faction to  the  gentlemen  of  this  committee,  is:  "You  fellows  ought  not  to  complain. 
It  is  true  we  charge  you  more  than  we  do  Lynchburg;  it  is  true  we  charge  you  more 
than  we  do  Richmond;  but  we  charge  you  less  than  we  do  Greensboro;  we  charge  you 
less  than  we  do  Salisbury,  and  we  charge  you  less  than  we  do  Charlotte,  and  Charlotte 
has  done  well."  I  said:  "  She  has  done  well  because  she  is  in  the  midst  of  the  great 
cotton  belt,  via  the  rich  fields  of  South  Carolina.  She  has  done  well  because  she  is  140 
miles  from  our  competition.  She  is  the  metropolis  of  that  surrounding  country,  and  she 
has  used  wisely  and  well  the  advantages  nature  has  given  her,  in  spite  of  you,  and  not 
because  of  your  exactions  and  oppressions."  A  highwayman  meets  me  on  the  highway 
and  takes  $30  from  me.  If  I  complain  that  he  does  it  under  the  v/hip  and  spur  of  a 
pistol  pointed  at  my  head,  he  v/ill  say:  "My  good  friend,  you  have  gotten  off  dead  easy. 
The  gentleman  from  Craig  (Mr.  Marshall)  had  $G0  taken  from  him  by  me  just  now,  and 
the  gentleman  from  Richmond  (Mr.  Meredith)  had  $100  taken  from  him  last  night.  I  am 
treating  you  with  great  justice  and  partiality,  as  compared  with  them." 

Mr.  Chairman,  they  have  established,  by  means  of  what  is  known  as  the 
official  classification,  which  corresponds,  as  I  understand  it  in  common  parlance, 
to  the  Virginia  cities'  basis  rate,  a  sliding  scale,  beginning  at  Lynchburg  and  rising, 
in  ever  increasing  gradation,  until,  as  some  say,  it  strikes  Charlotte,  and,  as  others  say, 
until  it  gets  to  Atlanta.  Then,  when  we  complain,  they  tell  us  tha<-  High  Point  has 
got  21  furniture  factories.  Yes,  we  say,  that  is  true.  She  has  got  the  furniture  right 
at  her  doors;  but  one  of  our  concerns  will  ship  more  pounds  of  tobacco  per  annum  over 
the  road  of  the  Southern  railv^ay  than  all  the  21  furniture  factories  in  High  Point  com- 
bined.   They  say:    Do  not  complain. 

It  is  true  that  the  Chesapeake  and  Ohio — cited  by  the  esteemed  and  eloquent  gen- 
tleman from  Fauquier  as  a  model  of  good  conduct  and  propriety,  and  in  some  respects, 
as  compared  with  its  compatriots,  it  is  a  model  of  good  conduct  and  propriety — has 
got  to  go  to  Newport  News  and,  in  order  to  do  so,  has  got  to  compete  with  Baltimore 
and  Philadelphia,  or  it  cannot  put  its  coal  and  grain  there  upon  the  same  terms  that 
the  Baltimore  and  Ohio  delivers  them  to  Baltimore  and  the  Pennsylvania  railroad  to 
Philadelphia;  has  lowered  its  rates  so  as  to  compete  with  these  roads,  and  as  a  result 
of  that  the  So^^thern  Railway  company  has  established  a  sliding  scale  of  rates  from 
Lj-nchburg  south.  Where  it  ends,  God  alone  knows,  and  what  it  results  in,  no  man  can 
tell. 

Section  9  of  the  answer  deals  pre-eminently  with  the  product  of  tobacco.  I  want  to 
tell  you  what  that  means  to  the  people  of  that  country,  what  it  means  to  the  people 
of  Pittsylvania,  what  it  means  to  the  people  of  Patrick  and  of  Henry,  of  Franklin,  of 
Halifax,  and  of  Mecklenburg  counties,  in  Virginia;  of  Stokes  and  Surry,  and  to  the 
people  of  Coswell,  Person  and  Granville  counties,  in  North  Carolina.  During  the  month 
of  November  leaf  tobacco  was  sold  on  the  floors  of  the  warehouses  of  that  city,  that  is 


2284 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


SO  unjustly  oppressed,  to  the  amount  of  $450,000,  although  it  was  a  cold,  dry  month,  and 
the  tobacco  could  not  be  readily  gotten  in  order,  and  that  amount  was  paid  out,  through 
the  banks,  in  that  city,  to  the  farmers  of  those  counties  for  distribution,  in  order  to 
bring  the  necessities  and  comforts  of  life  to  their  wives  and  children. 
In  section  9  of  the  answer  the  defendant  admits: 

That  it  charges  and  receives  from  persons  in  the  cities  of  Lynchburg  and  Richmond, 
Virginia,  for  the  transportation  of  leaf  tobacco  over  its  lines  to  Louisville,  Kentucky, 
24  cents  per  100  pounds,  and  from  shippers,  in  Danville,  Virginia,  to  Louisville,  Ken- 
tucky, over  the  same  line,  in  the  same  direction,  40  cents  per  100  pounds,  the  distance 
from  Richmond,  via  Danville,  being  141  miles,  and  from  Lynchburg,  66  miles  greater 
than  the  distance  from  Danville  to  Louisville,  by  the  lines  of  this  defendant,  the  shorter 
distance  from  Danville  being  included  in  the  longer  distance  from  Richmond  and  Lynch- 
burg; but  it  denies  that  shipments  so  handled  from  Richmond  and  Lynchburg,  on  the 
one  hand,  are  under  substantially  similar  circumstances  and  conditions  with  the  ship- 
ments so  handled  from  Danville,  on  the  other  hand. 

They  will  say  to  us,  probably:  You  have  got  a  great  cotton  mill  in  Danville.  Yes; 
we  have,  and  we  expect  to  put  another  great  one  just  outside  of  Danville.  We  have 
it  there  because  the  w^aters  of  the  river  Dan  afford  fine  water  power,  and  we  do  not  have 
to  haul  coal  over  the  railways  to  feed  the  furnaces,  in  order  to  make  the  wheels  turn. 
We  have  got  it  there,  in  spite  of  the  disadvantages  under  which  we  labor,  because  we 
have  the  most  intelligent,  the  wisest  and  the  most  effective  labor  for  cotton  mills  in  the 
world.  We  have  got  it  there  because  nature  put  upon  the  banks  of  that  river  the 
temptation  to  develop  this  fine  water  power.  We  have  got  it  there,  not  because  of  your 
discrimination,  but  in  spite  of  it. 

This  is  the  last  specification  I  shall  read  to  you,  for  which  you  are  doubtless  thank- 
ful. 

On  motion  of  Mr.  Wise  the  committee  rose  and  the  President  resumed  the  chair. 
On  motion  of  Mr.  Meredith  the  Convention  adjourned  until  Monday,  February  10^ 
1902,  at  12  o'clock  M. 


MONDAY,  February  10,  1902. 

The  Convention  met  at  12  o'clock  M. 
Prayer  by  Rev.  George  Cooper,  D.  D. 

Mr.  Thornton:  Mr.  President,  I  desire  to  make  a  motion  that  the  Convention  take 
a  recess  to-day  from  2  o'clock  until  4  o'clock  this  afternoon.  There  will  be  no  confer- 
ence of  members  to-day,  and  I  see  no  reason  v/hy  we  cannot  go  on  and  discuss  this 
matter  this  afternoon  and  save  that  much  time. 

The  motion  was  agreed  to. 

PERSONAL  EXPLANATION. 

Mr.  Stebbins:  Mr.  President,  in  my  remarks  on  Saturday,  when  asked  the  sources 
of  my  information,  or  rather  of  the  tariff  rates  which  I  presented  here,  I  gave  the 
source  as  Mr.  Goodman,  Tariff  Bureau  of  the  Chamber  of  Commerce  of  Richmond.  I 
wish  to  state  that  it  was  the  joint  work  of  Mr.  Goodman  and  Mr.  W.  H.  Lumsden,  Com- 
missioner of  the  Norfolk  Freight  and  Transportation  Bureau.  I  do  this  as  I  wish  to 
give  honor  where  honor  is  due. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton:  The  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Corpora- 
tions, Mr.  Eggleston  in  the  chair. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2285 


Mr.  Withers :  Mr.  Cliairman.  I  desire  to  correct  an  impression  v,-hich  was  created 
by  a  simple  error  in,  not  the  official  but  the  unofficial,,  report  of  the  remarks  I  submitted 
here  on  Saturday.  It  was  stated  I  had  referred  to  the  paper  furnished  by  the  gentleman 
from  Fauquier  (Mr.  Hunton),  or  rather  presented  by  him,  and  furnished,  as  I  under- 
stood, by  the  president  of  the  Chesapeake  and  Ohio  Railway  company,  as  misleading 
and  cooked  up.  I  think  an  inspection  of  my  remarks  as  reported  by  the  official  reporters 
will  show  that  is  an  error.  I  never  refer  in  such  terms  to  any  statement  submitted 
by  any  gentleman  from  any  authoritative  source,  and  I  see  no  reason  why  the  Chesa- 
peake and  Ohio  railway-  or  any  of  its  officials  should  present  a  cooked  up  report  to  the 
Convention.  What  I  did  say,  and  I  propose  to  substantiate  that  statement  before  I  get 
through,  was  that  the  Chesapeake  and  Ohio  railway,  in  furnishing  it  to  this  Convention 
or  to  the  gentleman  from  Fauquier  for  the  benefit  and.  information  of  the  Convention, 
more  than  probably  had  a  purpose  for  so  doing;  and  I  think  I  can  show  the  reason 
and  the  method  for  that  statement  and  for  that  particular  road  furnishing  it. 

Now,  Mr.  Chairman,  I  must  continue  just  where  I  left  off  on  Saturday  when  this 
body  adjourned  for  the  day,  in  the  midst  of  a  great  detail  of  figures  and  facts  and 
data  and  statistics,  all  of  which  I  will  say  for  the  benefit  of  the  gentleman  from  Fau- 
quier, who  is  not  in  his  seat,  are  from  Virginia  sources  and  pertain  largely  to  Vir- 
ginia cities  and  Virginia  people,  and  are  not  from  the  despised  source  of  North  Carolina. 
I  shall  continue  giving  to  my  distinguished  friend  from  Fauquier  further  Virginia 
statistics  and  further  Virginia  facts  and  figures,  and  I  promise  this  Committee  of  the 
Whole,  as  a  sort  of  relief  from  the  burden  that  I  am  inflicting  upon  them,  that  some 
at  least  of  the  figures  which  I  shall  have  the  honor  to  present  to  them  this  morning 
are  to  be  not  quite  so  dry,  and  some  of  them  more  conclusive  and  interesting  than  those 
I  had  the  honor  to  present  on  Saturday  last. 

Mr.  Chairman,  I  had  just  concluded  that  part  of  my  argument  on  Saturday  last 
which  showed  that  the  Southern  Railway  company,  in  an  ansvrer  sworn  to  by  its  second 
vice-president,  W.  W.  Finley,  had  admitted  every  charge  made  in  a  petition  by  the 
city  of  Danville,  the  Business  IMen's  Association  of  Danville,  the  Tobacco  Association 
of  Danville  and  many  of  the  individual  firms,  corporations  and  citizens  of  that  city, 
that  that  railroad,  by  its  second  vice-president,  swearing  to  an  answer  filed  in  answer 
to  that  petition,  had  admitted  the  charges  of  discrimination  and  excessive  rate  exactions 
from  the  citizens  of  that  city;  and  during  the  course  of  that  argument  I  made  the  state- 
ment that  I  intended  to  show  not  only  why  the  Chesapeake  and  Ohio  Railway  company 
furnished  to  this  Convention  a  table  of  its  rates,  but  the  defense,  as  alleged  by  the 
Southern  Railway  company,  for  its  extortions  and  exactions  from  certain  of  the  citizens 
of  Virginia. 

I  shall  proceed  to  make  good  both  statements.  We  charged  in  that  petition  that 
prior  to  the  16th  day  of  April,  1886,  on  which  day  (according  to  Poor's  :\Ianual  of  Rail- 
roads, which  I\Ir.  Baxter,  one  of  the  counsel  of  the  Southern  Railway  company,  had 
Mr.  Culp  to  refer  to  again  and  again  as  authentic  authority),  the  old  Richmond  and 
Danville  Railroad  system  had  acquired  what  was  then  known  as  the  Washington  City, 
Virginia  Midland  and  Great  Southern  railroad,  its  termini  being  in  the  cities  of  Alex- 
andria and  Danville,  Virginia;  that  prior  to  that  acquisition  of  control  of  that  particular 
road  by  the  Richmond  and  Danville  Railroad  corporation,  the  citizens  of  Danville  had 
bad  the  rates  that  they  now  demand;  in  other  words,  that  the  unjust  discrimination  did 
not  exist  against  them  prior  to  the  acquisition  of  a  competing  line  by  the  Richmond 
and  Danville  Railroad  company.  That  was  substantiated  by  the  testimony  and  evi- 
dence of  the  most  prominent,  intelligent  and  progressive  business  men  of  the  city 
of  Danville.  In  the  fourth  section  or  clause  of  the  answer  filed  by  the  Southern  Rail- 
way company  in  that  case  and  sworn  to  by  W.  W.  Finley,  its  second  vice-president,  this 
is  stated  in  answer  to  that  cbarge: 

And  it  denies — 

That  is,  the  Southern  Railway  Company  denies — 


2286  DEBATES  OF  THE  CONSTITUTIOi^AL  CONVENTIOIvr  OF  VIRGINIA. 

that  it  has  any  knowledge  or  information  sufficient  to  form  a  belief  as  to  whether  or 
not  the  city  of  Danville  and  its  merchants  and  inhabitants  ever  had  and  received  simi- 
lar rates  of  transportation  for  property  transported  to  and  from  the  States  aforesaid 
as  were  had  and  received  by  the  alleged  now  favored  cities  of  Lynchburg  and  Richmond 
and  other  basing  or  common  points  of  defendant. 

It  denies,  by  that  particular  clause  of  that  particular  section  of  that  answer,  sworn 
to,  that  the  Southern  Railway  company  which,  by  a  charter  issued  by  the  State  of 
Virginia  during  the  General  Assembly  of  1893-'94,  acquired  the  Virginia  Midland  road, 
had  in  its  possession  facts  or  information  or  data  that  would  enable  it  to  say  whether 
or  not  Charge  No.  4  in  the  petition  was  true,  and  that,  too,  in  face  of  the  fact  that  the 
Southern  Railway  company  in  that  act  succeeded  to  all  the  privileges,  franchises,  rights, 
&c.,  of  the  various  and  sundry  companies  known  as  the  Richmond  and  Danville,  West 
Point  Terminal,  or  Vv'hatever  name  they  may  have  been  described  by. 

That  was  an  unfortunate  admission.  When  a  petition  for  a  rehearsing  was  filed 
they  saw  it  was  an  unfortunate  admission,  and  so  General  Manager  Gulp  dances  up 
to  the  scene  loaded  with  information  to  show  that  we  were  mistaken  in  our  assertion 
in  that  particular  section  of  our  petition,  that  we  had  had  those  rates  prior  to  the  ac- 
quisition of  the  Washington  City,  Virginia  Midland  and  Great  Southern  railway  by 
the  Richmond  and  Danville  railroad  on  the  IGth  day  of  April,  1886. 

So  Mr.  Gulp,  in  answer  to  Mr.  Baxter's  various  and  sundry  questions,  proceeded 
to  explain  and  to  extenuate  and  to  file  great  volumes  of  exhibits  with  his  deposition 
to  show  that  we  v/ere  mistaken  in  asserting  that  we  had  those  rates  prior  to  the  ac- 
quisition of  the  Virginia  Midland  road  by  the  Richmond  and  Danville  system. 

General  Henderson  represented  the  Southern  Railway  company  at  the  original 
hearing,  because  Mr.  Baxter  was  unable  to  be  there,  having,  as  I  understood  it,  to  rep- 
resent the  Southern  Railway  company  somewhere  else,  where  it  was  charged  with  simi- 
lar high  crimes  and  misdemeanors.  If  you  will  just  be  patient  with  me  a  moment  I 
will  get  down  to  the  facts. 

Mr.  Baxter,  after  getting  Mr.  Gulp  to  tell  who  he  is,  asked  Mr.  Gulp  to  examine 
a  paper  styled  "  revised  through  freight  tariff  from  Cincinnati  to  all  points  on  the  Ohio 
river,  Huntington  excepted,  between  Cincinnati  and  Pomeroy,  inclusive,  via  Great  Cen- 
tral Dispatch,  G.  &.  O.  railway  and  connections.  No.  5,  taking  effect  April  7,  1875,"  and 
state  what  rates  of  freight  are  quoted  in  said  tariff  on  the  said  several  classes  of  freight 
mentioned  from  Cincinnati,  Charlottesville,  Danville,  Gordonsville,  Lynchburg,  Nor- 
folk, Petersburg,  Portsmouth  and  Richmond.  File  a  statement  of  those  rates  as  ex- 
hibit No.  1,  with  your  deposition,  w^hich  is  done.    That  exhibit  I  have  not  with  me. 

Mr.  Baxter,  a  little  lower  down,  says.  "  How  much  higher  were  the  rates  from 
Cincinnati  to  Danville  than  the  rates  from  Cincinnati  to  Richmond  and  Lynchburg  as 
shown  in  said  tariff,  and  how  much  higher  are  the  present  rates  from  Cincinnati  to 
Danville  than  the  present  rates  from  Cincinnati  to  Lynchburg  and  Richmond?  Pile  a 
statement  showing  that  comparison  as  exhibit  No.  2  to  your  deposition,  which  is  done," 
and  here  it  is. 

And  right  here  Mr.  Gulp  let  out  a  piece  of  very  useful  information  for  this  Con- 
vention. He  says  that  in  1883  Lynchburg  was  governed  by  the  E.  B.  T.  line  classifica- 
tion, which  means  that  it  was  governed  by  the  E  B.  T.  trunk  line  classification,  appar- 
ently eastern  bound,  while  Danville  was  governed  by  the  S.  Ry.  S.  S.  classification, 
whatever  that  may  be;  but  in  1899  and  1900  Lynchburg  was  governed  by  the  official 
classification,  which  the  road  of  my  distinguished  friend  from  Fauquier  uses,  and  Dan- 
ville was  governed  by  the  southern  classification,  which  the  Southern  railway  uses  at 
that  point.      The  force  of  that  will  be  seen  a  few  minutes  later. 

Now,  he  compares  these  as  being  favorable,  or  rather  he  gives  them  as  being  fav- 
orable to  the  railroads's  case. 

First  class  rate  to  Lynchburg,  $1.14;  to  Danville,  $1.40— a  difference  of  .26  in  1883. 
First  class  rate  to  Lynchburg  in  1900,  72  cents;  to  Danville,  $1.08 — ^36  cents  being  the 
difference  in  1900  as  against  26  cents  in  1883,  and  the  percentage  enormously  greater. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2287 


because  Lynchburg  paid  $1.14  in  1883  as  against  72  cents  in  1900,  and  Danville  paid 
$1.40  in  1883  as  against  $1.08  in  1900. 

Second  class,  96  cents  to  Lynchburg;  $1.18  to  Danville  in  1883— a  difference  of 
23  cents. 

Second  class,  G2  cents  to  Lynchburg  in  1900;  90  cents  to  Danville— a  difference  of 
28  cents— an  enormous  increase  of  percentage.  That  is,  the  difference  between  the 
rates  in  1900  bears  an  unfortunately  higher  percentage  to  the  rates  to  every  point  than 
it  did  in  1883. 

And  so  on  down.    Third  class,  to  Lynchburg  in  1SS3,  79  cents;  to  Danville,  97  cents 
— 18  cents  difference. 

To  Lynchburg  in  1900,  47  cents,  to  Danville,  70  cents— 23  cents  difference. 

They  have  clipped  Lynchburg  nearly  in  half  and  reduced  Danville  one-third,  and 
they  have  increased  the  difference  by  50  per  cent. 

And  so  on  down  through,  except  one  class,  to  Class  10,  and  in  these  latter  days 
they  do  not  go  below  this,  but  begin  with  A,  B,  C,  D,  E,  H,  F,  &c..  lettered  classes. 

On  one  class — and  I  w^ant  to  be  perfectly  frank  with  the  railroads  in  this  mat- 
ter— on  the  fourth  class  the  difference  in  1900  was  the  same  as  in  1883  but  the  total 
rate  charges  in  1900  were  mighty  near  half  as  great  as  they  were  in  1883,  the  fourth 
class  rates  to  Lynchburg  being  65  cents  as  against  32  in  1900;  the  fourth  class  rates  ta 
Danville  in  1883  being  83  as  against  50. 

That  is  Exhibit  No.  2,  to  explain  away  the  fact  that  the  acquisition  of  the  Washing- 
ton City,  Virginia  Midland  and  Great  Southern  railroad  did  not  make  any  difference 
in  Danville's  rate  in  competing  v/ith  these  other  points. 

.  Mr.  Culp  files  nine  exhibits  of  a  similar  nature,  which,  after  great  effort,  he  found 
among  the  musty  tomes  of  the  records  of  the  Southern  railway.  Let  us  see  what  is  the 
explanation  of  this  thing.  The  Chesapeake  and  Ohio  railroad  comes  careering  into  the 
arena  and  presents  long  tables  of  Virginia  and  North  Carolina  statistics.  Even  the 
gentlem.an  from  Fauquier  had  to  go  back  to  North  Carolina  for  statistics  before  he  got 
through.  Why  did  he  do  it?  It  is  a  very  simple  proposition.  The  Chesapeake  and 
Ohio  railroad  could  not  get  to  a  seaport  except  at  Newport  News  or  Norfolk.  It  had 
immense  coal  beds  to  develop.  It  had  a  chance  to  haul  the  grain  from  the  grain  fields 
of  the  West  to  its  unrivalled  port  at  Newport  News  or  Norfolk  city  and  send  it  in  ships 
to  Europe,  but  it  could  not  get  into  Baltimore  or  Philadelphia,  because  the  Baltimore 
and  Ohio  hauled  to  Baltimore  and  the  Pennsylvania  hauled  to  Philadelphia.  Therefore 
the  Chesapeake  and  Ohio  had  to  give  what  Vv^ere  known  as  Baltimore  rates  to  Norfolk 
and  Newport  News,  and  it  did  it  away  back  in  the  eighties,  and  it  did  it  for  no  other 
purpose  than  because,  in  order  to  make  its  port  develop  and  haul  its  coal  and  grain 
from  the  West  and  from  the  mountains  of  West  Virginia  to  the  seaboard,  it  had  to  put 
them  at  the  seaboard  for  export  at  exactly  the  same  price  at  which  the  Baltimore  and 
Ohio  puts  similar  products  at  Baltimore  city  and  the  Pennsylvania  put  them  into  Phila- 
delphia. So  independent  of  the  other  roads,  without  consulting  them  away  back  in 
the  eighties — and  I  shall  give  you  the  exact  date  directly — the  Chesapeake  and  Ohio 
issued  what  was  called  the  Baltimore  rate.  It  is  now  styled,  if  I  understand  it,  the 
Virginia  cities'  basis  rate,  and  the  Virginia  cities'  basis  rate  m.eans  that  certain  towns 
in  Virginia  get  the  benefit  of  the  Baltimore  and  Philadelphia  rate  where  it  is  necessary 
to  get  coal  and  grain  to  the  seaboard,  and  the  rest  of  Virginia  does  not  get  it.  That  is 
all  it  means. 

Now,  as  that  developed,  and  as  the  coal  business  of  the  Chesapeake  and  Ohio  in- 
creased and  it  got  its  western  connections  at  Cincinnati  and  Louisville,  it  could  get 
western  grain  and  carry  it  to  Newport  News  if  it  gave  western  grain  Baltimore  and 
Philadelphia  rates.  It  would  get  western  merchandise  and  products  and  bring  them 
to  the  Southern  at  Charlottesville  and  ship  them  north  to  Washington,  if.  with  the 
Southern's  aid,  it  could  give  Baltimore  and  Philadelphia  rates.  Therefore  it  did,  and 
in  that  way  it  entered  into  the  lists  as  a  competitor  with  the  Baltimore  and  Ohio  and 
the  Pennsylvania,  not  merely  as  a  carrier  of  coal  and  grain  but  as  a  carrier  of  merchan- 


2288 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


dise  and  various  and  sundry  sorts  of  products,  not  only  from  the  West  to  the  East,  but 
from  the  eastern  cities  to  the  West;  and  that  is  why  the  Chesapeake  and  Ohio  railroad 
presents  its  statistics  and  figures,  in  my  opinion,  to  this  Convention,  whereby  you  may 
judge  as  to  whether  or  not  Virginia  has  such  an  elegant  system  of  freight  tratRc  rates 
under  no  commission  and  the  Southern  States  have  a  different  classification  and  a  differ- 
system  under  their  commissions. 

Let  us  see  if  we  cannot  prove  that  by  Mr.  Cuip.  I  got  some  inkling  of  that  before 
I  heard  Mr.  Culp.  In  our  conference  with  these  railroad  officials  in  order  to  get  at  the 
truth  and  try  to  get  some  relief,  and  privately,  I  would  hear  intimations  that  there  was 
some  mysterious,  invisible,  unknown,  inaudible,  w^onderful,  supernatural  power  that 
had  seized  hold  of  the  Chesapeake  and  Ohio  railroad  and  caused  it  to  reduce  rates,  but 
I  never  could  exactly  understand  why  until  Mr.  Culp  went  upon  tlie  stand. 

Let  us  see  what  he  says.  He  was,  as  you  know,  or  as  I  will  tell  you  if  you  do  not 
know,  the  witness  for  the  Southern  railroad  in  the  hearing  of  this  petition  before  the 
Interstate  Commerce,  and  as  he  is  the  general  traffic  manager  of  the  Southern  railway 
system: 

Mr.    Baxter:    Mr.  Culp,  state  your  name,  age,  residence  and  occupation. 
Mr.  Culp:    J.  M.  Culp;  Washington  D.  C.  traffic  manager  of  the  Southern  Railway 
company. 

Now,  we  know  who  Mr.  Culp  is,  and  presumably  he  speaks  as  one  having  authority 
and  not  as  the  Scribes  and  Pharisees,  like  the  gentleman  from  Augusta  (Ga.),  the 
gentleman  from  Northampton,  the  gentleman  from  Manchester  and  the  gentleman  from 
North  Carolina. 

We  will  see  what  Mr.  Culp  says.  First,  I  want  to  tell  you,  and  I  may  as  well  do 
it  here,  because  it  comes  in  in  as  good  consecutive  order  as  after  I  have  explained  the 
Virginia  cities'  basis  rate,  that  Mr.  Culp  lets  out  some  more  very  valuable  information 
in  regard  to  that  very  remarkable  sliding  scale  from  Lynchburg  south,  ever  going 
higher  until  it  gets  to  Charlotte,  and  we  do  not  know  how  much  higher.  Mr.  Prouty, 
one  of  the  Interstate  Commerce  Commissioners,  asked  Mr.  Culp: 

Did  I  understand  you  to  say  that  those  rates  from  New  Orleans  to  Danville  were 
lower  than  from  New  Orleans  to  any  point  south  of  Danville? 
Mr.  Culp:    Not  any  point;  some  points. 
Mr.    Baxter:    How  far  fcack  towards  Atlanta  is  that  true? 
Mr.  Culp:    I  cannot  recall;  but  possibly  as  far  back  as  Charlotte. 
Commissioner  Prouty:    What  does  the  Danville  road  from  New  Orleans  base  on? 
Mr.  Culp:    On  Lynchburg  at  the  present  time. 

So,  you  see,  the  sliding  scale  begins  at  Lynchburg,  and  they  simply  keep  going  up 
as  they  go  south.  As  I  progress,  and  I  hope  I  will  not  overlook  it,  I  will  endeavor  to 
show  to  this  committee  v/hy  the  sliding  scale  goes  upward  as  it  goes  south,  because  of 
the  simple  fact  that  North  Carolina  has  not  an  East  and  West  trunk  line  controlled  by 
the  Southern  railroad,  and  that  is  the  only  reason. 

Now,  on  page  231,  after  Mr.  Prouty  has  asked  Mr  Culp  what  v/as  the  Danville  rate 
based  on,  Mr.  Baxter  asked  him: 

State  what  connection,  if  any,  the  Southern  railway,  or  its  predecessor,  the  Rich- 
mond and  Danville  railroad,  had  in  the  establishment  in  the  State  of  Virginia  of  what 
are  complained  of  in  this  case  as  Virginia  basing  or  common  points. 

Let  us  see  what  common  point  is  right  there.  Mr.  Culp  has  great  difficulty  in  de- 
fining it— great  diff-^uly.  Mr.  Baxter  asked  him,  Judge  Aiken  asked  Elm,  and  finally 
Mr.  Prouty,  a  comm  ssioner,  said  to  him. 

Mr.  Culp,  is  not  a  common  point  a  point  where  two  competing  lines  of  railroad 
agree  upon  and  establish  the  same  rate? 
And  he  said:    "Yes,  sir." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGINIA. 


2289 


But  in  all  this  deposition  of  railroad  wisdom,  and  in  all  this  deposition  of  railroad 
intricacy  and  legerdemain,  there  is  not  a  solitary  definition  of  basing  points,  though 
they  deny  in  their  answer,  sworn  to  in  this  case,  that  they  have  common  or  basing 
points;  but  from  a  fair  reading  of  the  deposition  a  basing  point  is  a  common  point  on 
which  not  only  do  two  competing  railroads  agree  as  to  a  freight  rate,  but  upon  which 
they  base  freight  rates  as  to  other  points  where  they  do  not  meet.  For  instance,  Lynch- 
burg is  both  a  basing  and  a  common  point  because  the  Chesapeake  and  Ohio,  the  Norfolk 
and  Western  and  the  Southern  agree  on  certain  freight  rates.  It  is  a  basing  points 
because  the  Southern,  with  that  as  a  base,  starts  a  sliding  scale  up  to  Charlotte,  and 
possibly  further  south. 

So,  Mr.  Baxter  says  to  Mr.  Culp,  after  he  had  said  the  Southern  had  nothing  to 
do  with  the  establishment  of  these  basing  of  common  points: 

Explain  how  these  points  came  to  be  established? 

Mr.  Culp:  In  the  early  eighties  the  Chesapeake  and  Ohio  railroad,  which  had 
become  a  competitor  for  business  from  the  West  to  Richmond  and  to  Newport  News, 
announced  as  its  policy  that  it  would  make  the  rates  from  the  Vv^est  to  Newport  News 
the  Baltimore  rate  as  a  maximum,  or  as  a  maxima;  and  it  pursued  that  policy.  Later 
on,  in  1889,  I  believe,  the  Chesapeake  and 'Ohio  railroad  acquired  control  of  the  Rich- 
mond and  Alleghany  Valley  railroad,  running  from  Clifton  Forge  easterly  through  Lynch- 
burg. Directly  after  acquiring  rhat  property  it  applied  the  same  rates  as  to  Lynchburg 
from  the  Yv'est,  and  it  made  that  as  a  base  before  the  Southern  railway,  or  the  Rich- 
mond and  Danville  railroad,  ever  undertook  to  compete  for  business  from  the  West  to 
the  Virginia  cities  named. 

Then  Mr.  Baxter  asked: 

Were  not  Charlottesville,  Gordonsville,  Norfolk,  Petersburg,  Portsmouth  and  Rich- 
mond all  located  on  the  line  of  the  Chesapeake  and  Ohio  railway? 

Not  Petersburg  and  not  Norfolk.    I  think  all  the  other  points  which  you  named 

are. 

Mr.  Baxter:  In  that  connection,  did  not  the  Chesapeake  and  Ohio  railway,  after 
establishing  the  policy  that  its  rates  from  Cincinnati  to  Newport  News  and'  Richmond 
should  not  exceed  the  rates  from  Cincinnati  to  Baltimore,  also  establish  as  a  part  of 
its  policy  that  it  would  not  charge  miore  for  a  short  haul  to  intermediate  stations,  such 
as  Charlottesville  and  Gordonsville,  than  it  charged  to  the  farther  distance  point  of 
Norfolk  on  traffic  from  the  West? 

In  other  words,  did  not  the  Chesapeake  and  Ohio  establish  a  rule  that  it  would 
obey  the  law;  and  it  is  the  only  railroad  in  Virginia  that  did  establish  a  rule  that  it 
would  obey  the  law.  That  is  all  that  question  means — that  after  the  interstate  Com- 
merce Commission  bill  was  enacted  into  a  law,  the  Chesapeake  and  Ohio  Railway, 
having  to  compete  with  Baltimore  and  Philadelphia  rates,  and  having  established  that 
rate  to  Newport  News  and  Norfolk,  established  a  rule  of  conduct  of  its  own  which  said: 
"  We  will  obey  the  law  and  not  charge  more  for  short  than  for  a  long  haul."  Mr.  Culp 
answered. 

It  did  certainly  adopt  that  policy  in  1887.  and  the  Interstate  Commerce  Act  was 
approved  February  4,  1887 ;  and  my  understanding  is  that,  as  to-  certain  points  if  not 
all  on  its  line,  it  did  adopt  that  policy  prior  to  1887,  and  its  tariff  shows  that  as  to 
Charlottesville  and  Gordonsville  and  Staunton  it  did  make  the  same  rate.  It  also 
•shows  it  made  the  same  rates  to  Petersburg  and  Portsmouth. 

Later  on  in  this  deposition  Mr.  Baxter  says  to  Mr.  Culp,  by  way  of  interrogatory: 

Tben  the  rule  or  policy  adopted  by  the  Chesapeake  and  Ohio  is,  as  I  understand  it, 
on  all  trafnc  from  the  West  to  such  points  as  Lynchburg,  &c.,  located  upon  its  line,  it 
does  not  charge  more  for  the  short  than  for  the  long  haul,  and  that  puts  all  these  roads 
down  to  the  Norfolk  rate. 

Mr.  Culp:    That  is  its  policy. 

Mr. -Baxter:  And  reversing,  on  traffic  from  the  East,  it  does  not  charge  to  Rich- 
mond or  Lynchburg  or  any  other  station  on  its  line  any  higher  rate  for  a  short  than 


2390 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA, 


for  a  long  haul,  and  consequently  does  not  charge  to  any  of  those  stations  more  than 
the  rate  from  the  East  to  Cincinnati. 

Mr.  Gulp:    Yes,  sir;  on  the  same  line  in  the  same  direction. 

That  explains  why  the  Chesapeake  and  Ohio  patriotically  immolated  itself  on 
the  altar  of  this  commmission  bill.  In  order  to  get  its  grain  and  coal  to  the  seaboard  it 
had  to  compete  with  Baltimore  and  Philadelphia  rates,  made  by  the  Pennsylvania  and 
the  Baltimore  and  Ohio,  and  therefore  it  reduced  its  rate  to  that  as  a  maximum  or  as 
a  maxima.    Mr.  Baxter  says: 

The  result  is,  as  I  understand  it,  that  the  Chesapeake  and  Ohio  has  established 
itself  a  line  of  rates  from  the  West  to  stations  not  only  in  Virginia,  but  wherever  its 
line  operates,  and  no  rate  from  Cincinnati  to  any  of  its  local  stations  between  Cincin- 
nati and  Norfolk  is  higher  than  the  Norfolk  rate,  and  from  the  East  no  rate  to  any  local 
station  is  higher  than  the  rate  to  Cincinnati: 

Mr.  Culp  answered: 

On  the  main  line  in  the  same  direction,  that  is  true. 

That  explains,  thereiore,  what  is  meant  by  the  Chesapeake  and  Ohio's  particular 
table  and  compilation  of  statistics,  that  establish  what  is  known  to-day  as  the  Virginia 
cities  basis  rate,  that  operates  under  the  official  classification,  but  south  of  the  Norfolk 
and  Western  Railroad  line,  as  far  east  as  the  Atlantic  Coast  Line,  and  possibly  farther, 
my  information  in  that  neither  the  official  classification  nor  the  Virginia  cities  basis 
rate  in  any  wise  applies,  and  the  southern  classification,  with  the  sliding  scale  of 
arbitrary  increase  rates  from  Lynchburg  south,  does  apply  on  all  portions  of  the  Southern 
railway,  which  operates  in  both  States. 

Now  another  thing.  The  gentleman  presented  statistics  here  nearly  all  of  which  were 
Interstate,  as  mine  so  far  have  been  interstate.  The  Chesapeake  and  Ohio  railway  does 
not  transact  any  common  carrier  business  in  North  Carolina.  The  Southern  railway  does 
run  its  line  into  both  States.  Why  not  select  the  Southern  railway  as  a  criterion  of  what 
it  does  in  both  States  in  which  it  has  operations,  instead  of  selecting  the  Chesapeake  and 
Ohio  Railway  company,  which  has  no  line  in  North  Carolina,  and  was  compelled,  by 
reason  of  the  fact  that  the  Baltimore  and  Ohio  and  the  Pennsylvania  haul  coal  and  grain 
and  other  western  products  to  Philadelphia  and  Baltimore  at  a  certain  rate,  to  give  that 
same  rate  to  Newport  News  and  Norfolk,  in  order  that  its  seaports  might  be  developed 
and  its  coal  hauled  to  the  seaboard  for  export  to  Europe  and  other  countries? 

I  read  these  things  to  you  because  they  are  the  sworn  testimony  of  a  railroad  expert. 
Objection  was  made  by  Judge  Aiken,  in  the  course  of  an  examination,  to  an  opinion  by 
Mr.  Culp  and  the  objection  was  overruled,  because  it  was  shown  that  Mr.  Culp  was  a 
railroad  expert,  and  these  figures  cannot  be  contradicted,  controverted,  nor  denied. 

Now,  let  us  see  what  else  this  wonderful  system  does.  In  the  13th  section  of  the 
answer  Mr.  Finley  swears  that  at  Lynchburg  and  Richmond  the  Southern  railway  was 
met  with  what  is  called  trunk  line  conditions,  and  on  page  249  Mr.  Culp  in  his  deposi- 
tion explains  what  trunk  line  conditions  are. 

Mr.  Baxter:  You  have  explained  heretofore  the  policy  of  the  Chesapeake  and 
Ohio  railway  in  making  rates  to  its  intermediate  stations  from  the  East  and  West.  I 
wish  you  would  state  whether  their  transportation  to  and  from  Lynchburg  and  Rich- 
mond, which  are  two  of  its  intermediate  stations,  is  subject  to  any  extent  to  the  influence 
of  what  are  known  as  trunk  line  conditions  and  exnlain  those  conditions. 

Mr.  Culp:  The  Chesapeake  and  Ohio  railway  is  a  competitor  for  business  between 
the  West  and  Baltimore,  and  the  rates  from  the  West  to  Baltimore  and  from  the  West 
to  Philadelphia  and  New  York  are  all  interdependent — all  made  on  a  trunk  line  basis. 
The  Chesapeake  and  Ohio  competes  for  business  west  of  Baltimore  and  other  eastern 
cities.  Its  rates,  therefore,  to  Baltimore  are  fixed  on  the  trunk  line  basis;  and  in 
adopting  the  rule  and  making  its  rates  to  Newport  News,  Lynchburg  and  Richmond 
any  higher,  those  roads  may  be  said  to  be  on  the  trunk  line  basis 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OP  VinGIXIA. 


A  trunk  line  "basis,  ttierefore,  is  nothing  in  ttie  v,'orld.  -^"hen  you  reduce  it  to  its 
ultimate  meaning  but  the  fact  that  the  coal  and  grain  rates  of  the  Chesapeake  and 
Ohio  had  to  be  lowered  in  order  that  it  might  put  them  to  the  seaboard  at  Newport 
News  and  Norfolk;  and  the  Norfolk  and  Western  necessarily  meets  those  conditions  by 
giving  similar  coal  rates  to  Lambert's  Point,  but  the  Norfolk,  and  Western,  so  I  am 
informed,  has  failed  to  liA-e  up  to  the  rule  of  the  Chesapeake  and  Ohio  railway,  v.-hich 
required  it  to  obey  the  law  and  not  violate  the  fourth  section  of  the  Interstate  Com- 
merce Act,  by  not  charging  more  for  a  short  haul  than  for  a  long  haul,  the  short  haul 
being  included  within  the  long  haul;  and  the  Chesapeake  and  Ohio  is  the  only  railroad 
in  Virginia  that  does  do  it,  according  to  Mr,  Gulp.    He  may  be  mistaken  how^ever. 

On  page  239  Mr.  Culp  admits  that  the  Chesapeake  and  Ohio  fixes  a  rate  independent 
of  the  Southern  or  the  other  roads,  and  it  fixes  it  for  the  reasons  alleged  by  me  and 
proved  by  him,  to-wit: 

Mr.  Baxter:  Nov.'.  of  all  these  competitors,  which  one  of  them  is  it  which  fixes 
the  rate  from  the  West  to  Lynchburg,  Richmond  and  Norfolk,  and  from  the  East  to 
Norfolk,  Lynchburg  and  Richmond? 

Mr.  Culp:  Well,  it  is  a  settled  rule;  it  is  a  well-known  fact  that  the  rates  from 
the  West  to  Baltimore  being  reduced,  the  rates  from  the  West  to  the  Chesapeake  and 
Ohio  road,  for  illustrations,  will  not  be  more  than  the  Baltimore  rates." 

Mr.  Baxter:    You  mean  by  the  Chesapeake  and  Ohio,  vrhat  point — Norfolk? 

Mr.  Culp:  Newport  News.  The  Chesapeake  and  Ohio  also  reaches  Norfolk  now. 
When  the  rates  to  Baltimore  are  reduced,  these  rates  follow  as  a  matter  of  course, 
gro^-ing  out  of  this  fixed  rule  of  the  Chesapeake  and  Ohio  that  the  rate  shall  not  exceed 
the  Baltimore  rate? 

Mr.  Baxter:  Then,  if  I  understand  your  testimony  of  all  these  competitors,  it 
is  the  Chesapeake  and  Ohio  railway,  in  the  enforcement  of  iis  policy,  that  fixes  the  rate 
from  the  West  to  Lynchburg,  Richmond  and  Norfolk? 

Mr.  Culp:  That  is  what  fixed  the  rule,  and  to-morrow  if  the  rates  from  the  West 
to  Baltimore  were  reduced  and  the  Southern  railway  would  not  reduce  their  rates  to 
Lynchburg  and  Richmond.  I  have  no  hesitation  in  saying  that  I  am  certain  the  Chesa- 
peake and  Ohio  road  would  reduce  the  rates. 

So  that  the  Chesapeake  and  Ohio  road,  because  of  its  peculiar  conditions,  with  refer- 
ence to  its  own  seaboard  and  its  own  coal  fields,  or  practically  its  own  coal  fields,  has 
had  to  conform  to  the  Baltimore  and  Philadelphia  rates,  which  was  a  lowered  rate  and 
which  has  given  what  is  known  as  the  Virginia  cities  basis  rate. 

I  want  to  see,  as  a  matter  of  curiosity  and  some  more  or  less  interest,  if  the  papers 
who  oppose  so  loudly  this  wonderful  and  dangerous  and  populistic  and  anarchistic 
commission  bill,  and  were  clamoring  for  the  facts  that  might  sustain  a  demand  for  it. 
will  have  the  nerve  and  the  fairness  to  publish  a  solitary  fact  except  where  tSe  official 
record  compels  them  to  do  it. 

Now,  let  us  see  a  little  further  into  this  interesting  deposition  of  Mr.  Culp. 

I\Ir.  Aiken:  I  would  like  to  have  you  explain,  as  far  as  rates  are  concerned,  what 
is  the  effect  of  being  a  common  point  in  Virginia. 

Mr.  Culp:  The  effect  is  to  m.ake  from  the  West  rates  not  higher  than  to  Baltimore, 
from  the  same  point,  and  from  the  East  rates  not  higher  than  the  rates  from  the  East 
to  Cincinnati. 

In  others  words,  to  get  stuff  to  Baltimore  as  a  competitor  with  the  B.  &  0.  railroad, 
the  C.  &  0.  has  got  to  charge  a  B.  &  0.  rate.  To  get  stuff  from  the  East  to  Cincinnati 
the  C.  &  0..  in  order  to  haul  it,  has  got  to  charge  the  B.  &  0.  and  the  Pennsylvania  rate, 
in  order  to  put  it  there;  and  the  Southern  meets  that  condition  by  giving  the  C.  &  0. 
the  Baltimore  rate  from  Washington  to  Gordonsville  and  Charlottesville,  one  or  the  other 
or  both  points. 

Here,  after  much  labor  and  great  trial  and  tediousness  Mr.  Prouty  gets  Mr.  Culp 
to  agree  to  the  fact,  on  page  262.  that  whenever  two  roads  apply  that  rate — that  is,  the 
Baltimore  rate — to  the  same  point,  it  is  a  common  point. 

So  non-  we  understand  basing  points;  xs'e  understand  comman  points;  I  hope  we 


2292 


DEBATES  OF  THE  COIS-STITUTIOJ^AL  CONVENTION  OF  VIRGINIA. 


understand  the  Virginia  cities  basis  rates  and  the  reason  for  the  reduction  of  the  original 
Virginia  rate  by  the  C.  &  O.,  which  has  given  the  official  classification  in  Virginia  to 
the  C.  &  0.  and  to  the  parts  of  the  other  railroads  in  Virginia;  and  we  understand,  or 
we  will  in  a  few  moments,  beginning  with  Lynchburg,  why  there  is  a  sliding  scale 
upward  south  to  some  undefined  and  indefinite  and  unknown  point. 

Now,  why?  The  conditions  did  not  exist  in  North  Carolina  that  required  a  com- 
petitive Baltimore  and  Philadelphia  rate.  Back  in  1882,  when  the  C.  &  0.  adopted  this 
rate,  there  was  no  East  and  West  trunk  line  in  North  Carolina.  There  was  no  railroad 
piercing  the  high  mountains  of  that  State  and  of  East  Tennessee.  There  was  but  one 
seaport  to  which  it  would  have  been  advantageous  to  haul  coal  to  North  Carolina — 
that  of  Wilmington.  Therefore  there  was  but  very  little,  if  any,  of  East  and  West 
traffic  going  through  North  Carolina,  because,  in  order  to  get  through,  it  had  to  go 
<or  come  through  by  Richmond  and  the  C.  &  O. 

Subsequently  and  since  that  time,  the  Southern  Railway  Company  has  got  a  through 
East  and  West  trunk  line  in  North  Carolina  by  the  routes  I  named  on  Saturday — through 
Asheville,  Paint  Rock,  Morristown,  and  so  on,  to  Louisville  and  Cincinnati;  but  the 
Southern  railway  controls  the  entire  trunk  line  from  Louisville  and  Cincinnati  through 
those  mountains  around  by  way  of  Salisbury  and  Greenville  to  Danville,  and  therefore 
it  does  not  have  to  furnish  the  Baltimore  rate,  because  "  you  have  got  to  haul  over  my 
line  or  you  cannot  haul  to  all.  Your  name  shall  be  Dennis,  or  you  will  have  no  name 
at  all."  That  is  exactly  why  the  Southern  railway  did  not  comply,  or  compete  rather, 
with  the  Baltimore  rate. 

Now,  it  would ,  seem  an  absurdity  for  a  road  to  compete  with  the  Chesapeake  and 
Ohio  railway,  running  practically  in  an  air  line  so  far  as  the  topography  of  the  country 
will  admit,  from  Richmond  to  Cincinnati  and  Louisville,  when  it  had  to  haul  the  stuff 
that  it  sought  to  take  the  C.  &  0.  as  a  competing  carrier  from  Richmond  and  Danville 
down  into  North  Carolina  by  way  of  Salisbury,  Asheville,  Morristown  and  the  other 
named  routes  up  to  Louisville  and  Cincinnati;  in  others  words,  practically  complete  a 
semicircle,  while  the  C.  &  O.  ran  straight  through  on  the  diameter  of  that  semi-circle. 
Yet  it  does  do  it,  and  it  is  a  profit-earning  and  a  profitable  basis,  according  to  the  testi- 
mony of  Mr.  Culp. 

The  low  rates  that  the  C.  &  O.  has  given  on  the  Baltimore  and  Philadelphia  basis 
are  still  susceptible  of  such  a  margin  of  profit  that  the  Southern  can  haul  all  the  freight 
it  can  get  in  that  roundabout  way  between  Louisville  and  Cincinnati,  in  the  West,  and 
Richmond  to  the  East,  and  still  there  is  a  profit  in  that  particular  haul;  and  the  old 
maxim  that  has  been  dragged  out  the  combine  out  West  by  the  Interstate  Commerce 
Commission  in  one  instance,  when  they  had  up  before  them  some  of  the  railroad 
magnates,  that  "  we  put  on  the  business  just  as  much  as  it  will  bear,"  will  be  seen  to 
apply  right  here  in  Virginia,  even  unto  this  day. 

Now  I  refer  to  page  240.  People  living  on  the  C.  &  O.,  members  of  this  Convention  ' 
doubtless,  thought  what  an  elegant  thing  it  is  to  have  the  C.  &  O.  haul  my  freight. 
When  my  distinguished  friend  from  Fauquier  was  giving  his  elucidating  table  they 
thought  "What  an  elegant  thing  it  is  to  take  advantage  of  this  model  of  railroads."  I 
am  willing  to  concede  all  that  it  deserves,  but  it  has  such  a  margin  of  profit  that  its 
competitor,  the  Southern,  can  haul  clean  around  half  of  a  circle,  while  it  follows  a 
diam_eter,  and  still  the  Southern  makes  a  profit  on  the  haul. 

Mr.  Culp:  While  the  rates  are  very  low  from  the  Vv'^est  to  Virginia  cities,  I  do  not 
think  any  business  is  carried  at  less  than  the  additional  cost  necessary  to  move  that 
business.  I  know  that  only  recently  the  Southern  railway  has  declined  some  large 
lots  of  business,  via  Norfolk  for  export,  because  at  the  rates  which  it  could  secure  on 
that  business  in  competition  with  other  lines  it  did  not  feel  that  it  would  get  the  ad- 
ditional cost  necessary  to  handle  that  business,  and  declined  to  carry  it.  We  aim  to 
carry  no  business  at  less  than  it  costs  to  do  that  business.  By  additional  cost  I  mean 
additional  expense  we  would  have  to  incur  to  carry  certain  business  as  between  carry- 
ing and  not  carrying  it.  Of  course  that  additional  cost  is  very  much  less  than  the 
average  cost  of  hauling  general  steady  business.    There  are  many  items  that  go  in  the 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXVE.XTIOX  OE  YIRGIXIA. 


2293. 


general  cost  -u'liicli  are  neither  more  nor  less,  whether  we  carry  more  business  or  less 
business,  and  those  need  not  be  taken  into  account  when  we  consider  the  additional 
expense  to  carry  additional  business. 

Commissioner  Prouty:    Do  you  take  into  account  the  maintenance  of  way? 

Mr.  Gulp:    Yes,  sir. 

Commissioner  Prouty:    Office  expenses? 
Mr.  Culp:    No;  no  interest  and  no  taxes. 

Commissioner  Prouty:    Do  you  not  pay  taxes  on  your  gross  receipts? 

Mr.  Prouty  stumbled  upon  something  we  did  not  know,  and  he  shows  his  surprise 
when  he  stops  Mr.  Culp  in  his  explanation  to  ask  him  "  Do  you  not  pay  taxes  on  your 
gross  receipts;"  and  yet  we  are  taught  that  we  are  having  a  great  condescension  in  the 
payment  of  taxes  on  gross  receipts. 

Mr.  Culp  does  not  answer  that  question.  He  says  "  We  do  not  count  taxes  in  con- 
sidering the  movement  expense." 

Now,  I  will  soon  get  away  from  Mr.  Culp.  Let  us  see  what  else  they  try  to  urge 
in  defense  of  their  proposition. 

I  can  imagine  right  now  there  are  certain  gentlemen  here  who  have  opposed^ 
or  who  perhaps  will  oppose,  this  corporation  commission  bill  that  have  a  smile  up  their 
sleeve,  thinking  how  they  will  demolish  ;Mr.  Culp's  testimony.  They  will  ask  "  What 
competitors  has  the  Southern  railway  at  Richmond?"  I  answer  that  it  has  the  Atlantic 
Coast  Line,  the  Chesapeake  and  Ohio,  the  Norfolk  and  Western,  and  possibly  certain 
water  carriers.  They  reply,  "  Water  reduces  the  rate."  We  vrill  see.  It  reduces  the 
rate  on  all  products  from  eastern  cities  through  Richmond  South  or  West.  It  may 
reduce  the  rates  on  all  products  from  western  points  through  Danville  and  Richmond  to 
the  East,  but  it  cannot  reduce  and  cannot  affect  business  starting  at  Richmond  and 
going  through  Danville  to  the  West,  nor  can  it  affect  business  coming  from  the  West  and 
stopping  at  Richmond  and  not  requiring  service  of  a  water  carrier.  Consequently  that 
will  not  be  a  sound  objection.  It  will  not  do  to  meet  the  position  we  have  assumed  in 
this  case,  to  say  that  water  carriers  fix  the  rates  at  Richmond,  for  they  do  nothing  of 
the  kind,  except  on  certain  rates  which  I  have  specified. 

They  recognize  the  necessity  in  this  petition  of  trying  to  break  that  thing, 

]\Ir.  Baxter.  Who  are  the  competitors  of  the  Southern  Railway  at  Lynchburg,  Rich- 
mond and  Norfolk — rail  competitors  from  the  West? 

Mr.  Culp:  At  Lynchburg  the  competitors  are  the  Chesapeake  and  Ohio  and  Nor- 
folk and  Western  from  the  West;  at  Ricnmond  the  competitors  are  the  Richmond, 
Fredericksburg  and  Potomac  and  connections,  the  Chesapeake  and  Ohio  Railway  and 
connections,  the  Norfolk  and  Western  Railroad,  in  connection  with  the  Atlantic  Coast 
Line,  or  the  Richmond  and  Petersburg,  a  part  of  the  Atlantic  Coast  Line,  likewise  the 
steamship  lines  running  from  Baltimore  to  Newport  News  and  Portsmouth  compete  for 
business  from  the  West. 

Mr.  Baxter:  You  speak  of  steamships  or  steamboats  plying  between  Richmond  and 
eastern  cities  and  between  Norfolk  and  eastern  cities  as  competitors  of  the  Southern 
railway  at  Richmond  and  Norfolk.  How  do  those  steamships  compete  for  traffic  from 
the  West  to  Richmond  or  Norfolk? 

Mr.  Culp:  From  Baltimore  there  are  two  regular  steamship  companies  plying 
between  Baltimore  and  Norfolk.  They  have  connections  with  rail  lines  reaching  Balti- 
more from  the  West.  One  of  those  steamship  companies  connects  at  Norfolk  or  Newport 
News  with  the  Norfolk  and  Western:  another  steamship  company  connects  with  the 
Southern  railway  at  West  Point  for  Richmond,  In  addition  to  that,  there  is  the  ]Mer- 
chants'  and  Miners'  Transportation  Company,  which  plies  between  Baltimore  and  Bos- 
ton, touching  at  Newport  News  and  Norfolk,  which  is  a  competitor  for  business  be- 
tween Baltimore  and  Norfolk  and  Richmond.  From  New  York  there  is  the  Old  Domin- 
ion Steamship  company,  running  six  days  a  week  between  New  York  and  Norfolk,  and 
about  twice  a  week,  sometimes  more  and  sometimes  less  to  Richmond.  There  is  the 
Philadelphia  Clyde  Line  which  runs  from  Philadelphia  to  Norfolk  three  times  a  week, 
and  runs  to  Richmond  three  times  a  week. 

]Mr.  Prouty  was  naturally  surprised  that  traffic  should  come  from  Cincinnati  to  Bos- 
ton, take  the  ^Merchants  and  ^Miners  line,  come  down  the  ocean  and  up  the  bay  and  river 
to  Richmond,  when  it  could  come  right  straight  through  by  the  Chesapeake  and  Ohia 


2294  DEBATES  OF  THE  COXSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

railroad  without  changing  a  car.  Anybody  else  would  have  been  surprised.  Anybody 
else  would  have  seen  the  fact  that  in  that  answer  there  was  not  an  answer  to  Mr.  Baxter's 
question,  but  an  attempted  explanation,  in  order  that  there  might  be  offered  as  a  defense 
for  the  roads  that  I  cited  here  on  Saturday  the  fact  that  common  carriers  competed  at 
Richmond  with  roads  from  the  West  with  the  Southern  railway.  Commissioner  Prouty 
says: 

Do  you  mean  that  traffic  comes  from  the  West  and  then  by  water  to  Richmond? 

It  was  such  an  astonishing  thing  that  Commissioner  Prouty  himself  injected  him- 
self into  the  examination. 

Mr.  Culp:  It  does  come  to  Baltimore  that  way.  It  does  come  from  western  points 
to  Philadelphia.  Understand  me,  I  do  not  say  the  steamship  companies  bring  a  large 
amount  of  business  from  the  West  to  Richmond,  but  they  are  competitors  for  the  busi- 
ness, and  Mr.  Baxter  asked  me  to  name  the  competing  lines  at  Norfolk,  and  I  have 
done  so. 

As  if  anybody  would  for  a  moment  consider  that  a  defense  for  putting  a  hundred 
hogsheads  of  tobacco  on  the  cars  at  Richmond  and  shipping  them  to  Kentucky  by  Greens- 
boro, Salisbury  and  Asheville  at  a  rate  of  24  cents,  while  they  take  those  same  hogs- 
heads on  at  Danville  and  charge  40  cents,  and  say  that  water  carrier  competition  causes 
the  difference. 

That  is  why  it  is  so  hard  to  get  at  facts  about  railroads.  They  drag  in  the  Mer- 
chants' and  Miners'  Transportation  company,  that  very  probably  never  saw  and  never 
will  see,  world  without  end,  and  the  end  of  the  world  that  is  to  follow  this,  a  hogshead 
of  tobacco  loaded  on  at  Richmond,  hauled  to  Boston,  thence  by  Boston  and  Albany  and 
the  Nev/  York  Central  to  Chicago,  instead  of  being  hauled  on  the  Chesapeake  and  Ohio 
directly  out  there.   It  is  an  absurdity  on  its  face. 

Mr.  Culp  so  recognized  it  when  he  said,  "  Understand  me,  I  do  not  say  that  much 
business  goes  that  way."  I  should  like  somebody  to  rise  up  in  this  community  of  Rich- 
mond and  give  an  instance  of  business  that  did  go  that  way  since  the  Chesapeake  and 
Ohio  has  put  in  the  Baltimore  and  Philadelphia  rate. 

Let  us  get  down  to  the  result.  At  Lynchburg  there  is  no  competing  water  carrier. 
The  noble  James  is  not  navigable  up  quite  so  far;  and  the  distinguished  chairman  of 
this  committee  in  opening  this  argument,  with  his  elaborate  and  able  speech,  stated,  if 
I  remember  correctly,  that  it  was  practically  admitted  before  the  Committee  on  Corpora- 
tions or  the  Committee  on  Taxation  that  the  railroads  of  Virginia  were  under  nearly  one 
and  the  same  control,  and  it  was  not  disputed,  so  far  as  I  heard,  in  any  argument  againts 
this  commission  bill.  If  that  is  true,  there  is  now  absolutely  no  excuse  for  the  continua- 
tion of  the  sliding  scale  from  Lynchburg  south,  because  if  the  community  of  interests 
obtain,  the  advantages  of  competition  are  dead  and  the  Southern  no  longer  has  to  meet 
competition  at  Richmond  or  Lynchburg,  so  far  as  the  Chesapeake  and  Ohio  railway  is 
concerned. 

Of  course  I  do  not  know  whether  the  community  of  interests  obtains  or  not.  T  can- 
not state  that  as  a  fact,  but  I  have  seen  it  stated  and  heard  it  stated,  uncontroverted 
on  this  floor.  If  it  is  true,  the  last  prop  falls  from  under  the  feet  of  Mr.  Culp  and  the 
Southern  railway  and  all  other  railways  in  Virginia,  because  the  same  management 
destroys  competition,  and  they  have  no  longer  the  excuse  to  say,  "  We  had  put  this  rate 
at  such  a  point  because  the  competing  railroad  did  it,  and  therefore  we  had  to  meet  it," 
For,  if  the  community  of  interests  obtains,  again  I  say  the  advantages  of  competition 
are  dead. 

What  was  the  result?  We  got  a  verdict,  a  decision  in  our  favor  before  that  com- 
mission. The  railroad  petitioned  for  a  rehearing.  It  was  granted;  and  then  there  came 
into  the  arena  Mr,  Culp  with  the  facts  I  have  stated  to  you.  I  have  now  reached  that 
point  in  these  proceedings  that  every  member  upon  this  floor  is  interested  in  hearing. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2295 


The  petition  for  a  rehearing  stated  that  if  the  suggestion  of  the  Interstate  Commerce 
Commission  was  carried  into  effect,  the  revenues  of  the  Southern  railway  would  be  re- 
duced at  the  city  of  Danville  $26,252.30  per  year  upon  freight  rates,  and  that  the  re- 
duction at  Danville  would  inevitably  involve  reduction  at  312  other  points  south  of  Dan- 
ville, which  were  likewise  discriminated  against  at  a  higher  rate  of  discrimination  and 
their  total  loss  on  all  the  312  points  would  be  per  annum  $433,592.36.  So  that,  in  their 
petition  for  a  rehearing,  they  admitted  that  to  the  country  south  of  Danville,  including 
Danville,  and  Virginia  points,  similarly  situated  they  would  have  to  reduce  rates  to  the 
amount  that  would  aggregate  in  a  year  433,000,  which,  by  the  finding  of  this  commis- 
sion, they  had  unjustly  taken  from  the  pockets  of  the  people  of  that  community. 

What  was  the  result  of  that  petition  for  a  rehearing?  There  was  a  subsequent  de- 
cision of  the  Interstate  Commerce  Commission.  That  decision  denied  the  prayer  asked 
for  in  the  petition,  and  it  set  forth  its  reasons  for  so  "doing.  I  want  the  Committee  of 
the  Whole  to  know  those  reasons.  I  want  them  to  know  what  is  the  judicial  finding 
of  a  tribunal  constituted  for  the  purpose  of  investigating  into  those  facts.  I  want  them 
more  than  ever,  to  know  it  because  of  the  fact  that  the  gentleman  from  Roanoke  (Mr. 
Robertson)  used  as  the  most  powerful  point  in  his  argument  on  Saturday  last  that  this 
Convention  could  not  afford  to  affect  the  money  invested  in  the  stocks  and  bonds  of  these 
railroads  by  innocent  purchasers  for  value,  and  destroy  their  value  by  prohibiting  the 
railroads  from  earning  dividend  by  fixing  tariff  or  traffic  rates.  I  want  to  show  ygu  how 
fallacious  that  argument  is.  I  want  to  show  you,  gentlemen  of  the  committee,  that  by  a 
judicious  finding  of  a  tribunal  created  for  the  purpose,  it  is  shown  that  the  railroads  of 
this  southern  country  are  seeking  to  earn  dividends  not  upon  stocks  that  they  paid  money 
for,  not  upon  bonds  that  are  mortgaged  upon  their  roadbed,  fixtures,  improvements,  etc., 
but  upon  millions  and  hundreds  of  millions  of  stocks  for  v\"hich  they  paid  not  a  dollar, 
and  which  is  as  pure  water  and  empty  air  as  ever  ran  down  a  hill  or  floated  upon  a  moun- 
tain side. 

And  yet  these  wise  railroad  people — and  they  are  not  so  wise  after  all.  They  havfe 
not  all  the  brains  of  Virginia  yet,  nor  of  the  United  States,  though  they  may  have  a  large 
bulk  of  the  money;  if  they  had  been  they  never  would  have  filed  in  their  petition  alleg- 
ing as  a  reason  for  a  rehearing  that  it  would  destroy  the  dividend-earning  capacity  of  their 
stock.  The  commission  denied  the  petition  for  a  rehearing,  and  stated  that  the  Southern 
Railway  in  its  petition  for  a  rehearing  and  by  this  testimony  produced  upon  the  hearing 
of  that  petition  shows  that  the  tonnage  of  all  traffic  at  Danville  has  somewhat  increased  in 
the  last  four  years,  though  they  were  four  jears  of  the  greatest  depression  in  the  history 
of  that  town,  prior  to  1899,  and  inferentially  ask  a  reconsideration  of  the  finding  as  to 
the  effect  upon  them.  While  the  statement  furnished  by  the  Southern  company  as  to 
the  reduction  of  its  revenues  at  Danville  is  of  litie  value  as  indicating  what  the  actual 
effect  of  these  proposed  rates  would  be  upon  the  revenues  of  that  company,  it  does  prob- 
ably indicate  the  amount  which  the  citizens  of  that  community  paid  to  the  Southern 
road  and  its  connections  above  what  ought  to  be  paid. 

Let  me  stop  right  here.  I  want  the  men  of  this  Convention  w^ho  are  not  lawyers  to 
know  what  that  means.  The  figures  I  am  going  to  compare  with  certain  figures  in  the 
auditor's  report  are  not  figures  showing  what  is  a  fair  freight  rate  paid  in  the  city  of 
Danville,  but  they  are  figures  showing  what  the  excess  above  what  this  commission  has 
said  was  a  fair  and  just  rate  at  Danville,  amounted  to  annually  to  the  citizens  of  that 
city,  and  what  it  amounts  to  annually  in  that  city  it  will  amount  to  in  the  same  propor- 
tion to  the  citizens  of  South  Boston,  Halifax  county,  and  to  the  citizens  of  Martinsville, 
Henry  county,  and  to  the  citizens  of  every  depot  and  station  and  town  and  village  in  that 
whole  part  of  Virginia. 

It  is  likely  true  that  Danville  paid  in  the  year  1S99  $26,252.30  more  than  was  just 
and  lawful  for  transportation  charges — 

More  than  was  just  and  lawful.    When  it  is  remembered  that  the  basis  upon  which. 


2296 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


this  excess  was  computed  is  from  10  to  15  per  cent,  higher  than  Lynchburg,  it  will  be 
seen  that  Danville  is  now  paying  not  less  than  $50,000  a  year  more  than  would  be  paid' 
if  as  low  rates  were  accorded  it  as  to  Lynchburg.  There  is  imposed  by  these  trans- 
portation charges  upon  the  business  interests  of  that  community  a  tax  of  $50,000  a 
year  more  than  is  imposed  upon  corresponding  interests  at  Lynchburg.  It  is  idle  to 
suppose  that  Danville  can  long  continue  the  active  competitor  of  Lynchburg  under 
these  circumstances.  Enterprises  already  established  there  may  continue  for  a  time. 
Special  condition,  like  its  water  power,  may  give  to  it  permanently  special  lines  of 
business;  but  as  a  whole  Danville  must  cease  to  be  a  competitor  of  Lynchburg.  The 
Southern  railv/ay  shows  that  in  the  year  1899  it  earned  nothing  upon  its  $120,000,000 
of  common  stock,  and  urges  that  any  order  of  this  commission  which  depletes  the  rev- 
enues of  that  company  deprives  the  owners  of  this  stock  of  their  property  without  due 
process  of  law. 

Just  exactly  the  argument  of  my  distinguished  friend  from  Roanoke,  that  we  are  to 
deprive  these  poor,  innocent  purchasers  for  value,  these  poor,  innocent  investors  in  legiti- 
mate stock  of  earning  a  dividend  upon  $120,000,000  of  common  stock  of  the  Southern 
railway  every  year. 

This  common  stock  was  issued  as  a  part  of  a  reorganization  scheme,  under  which 
the  Southern  Railway  company  came  into  existence.  It  does  not  appear  that  the  per- 
sons to  whom  this  stock  was  originally  issued  ever  paid  one  dollar  in  actual  value  for 
it.    It  simply  appears  that  the  stock  is  outstanding. 

And  yet  my  friend  from  Roanoke  is  so  solicitous  about  such  innocent  infants  of 
finance  as  J,  Pierpont  Morgan,  etcetera,  ad  infinitum,  that  we  must  not  do  anything  that 
will  prevent  the  possibility  of  a  dividend  being  paid  upon  this  mighty  hole  of  water,, 
$120,000,000  of  common  stock! 

Pay  dividends  to  the  innocent  purchasers  for  value!  We  have  no  right  to  take  from 
them  their  just  dividends  upon  $120,000,000  of  hole,  of  vacuum,  of  void,  an  absolutely 
nothing!  But  they  have  a  right  to  exact  from  us  a  tax  just  as  forcibly,  just  as  completely 
levied,  taken,  exacted  and  extorted  from  the  people  of  this  country  as  ever  a  Xerxes  or  a 
Darius  extorted  from  their  various  provinces  when  they  ordered  the  Satraps  to  get  the 
taxes,  even  if  they  had  to  cut  the  throats  of  those  who  hesitated  to  pay. 

One  is  by  the  accomplished  modern  methods,  business  methods,  of  men  of  affairs;  and 
men  of  affairs  being  translated  and  interpreted  means  money  gatherers,  without  a  sight 
beyond  a  dollar,  blinded  to  all  the  higher  and  better  and  nobler  impulses  of  life,  in  many 
instances,  because  they  cannot  see  anything  upon  the  face  of  the  world  but  the  dollar; 
and  the  eagle  on  it  ought  to  be  changed  into  a  vulture. 

Again,  after  saying  "The  stock  appears  to  be  simply  outstanding,"  the  commission 
proceeds: 

This  is  not  enough.  Something  more  is  needed  when  a  claim  of  this  kind  is  set 
up  than  the  mere  fact  of  existence  and  amount  of  capitalization.  It  does  not  rest  in 
the  whim  of  a  reorganization  committee  in  Wall  Street  to  impose  a  perpetual  tax  upon 
that  whole  Southern  country.  In  the  year  1899  the  Southern  railway  earned  net  about 
4  per  cent,  on  $40,000  a  mile  of  the  mileage  of  its  entire  system. 

Four  per  cent,  on  a  valuation  of  $40,000  per  mile!  Yet  it  is  exceedingly  extortionate 
and  unjust  taxation,  when  the  best  mile  they  have  in  Virginia,  outside  of  their  terminal 
limits,  is  rated  at  $15,000  per  mile. 

That  system  extends,  as  a  rule,  through  sparsely  populated  territory.  No  expen- 
sive engineering  feats  were  involved  in  its  construction,  nor  has  it  in  proportion  to 
its  extent  many  expensive  terminals.  It  will  hardly  be  claimed  that  the  cost  of  repro- 
ducing that  property  in  its  present  state  would  equal  $40,000  per  mile.  The  Southern 
railway  is  of  great  benefit  to  the  territory  which  it  serves. 

I  read  this  because  it  says  with  such  admirable  clearness  what  ought  to  be  said  on 
every  stump,  when  this  question  comes  up,  if  it  ever  does,  before  tlie  people  of  this  State. 
They  talk  about  railroads  being  civilizers;  they  talk  about  railroads  making  the  world; 


DEBATES  OF  THE  COXSTITUTIOXAL  cuXTEXTIOX  OF  VIRGIXIA. 


2297 


tliey  talk  about  the  steam  engine  as  if  it  brought  religion  and  piety  and  intellect  and  all 
the  qualities  of  mankind  into  play.  Why,  we  have  heard  something  about  kingdoms  like 
Rome,  ihey  did  not  have  any  railroads.  AVe  have  heard  something  about  the  great  king- 
dom, the  most  wonderful  of  ancient  times,  Eg^'pt;  they  did  not  have  any  railroads.  Yv'hile 
the  railroad  is  an  immense  improvement,  even  over  the  Appian  way,  the  railroad  goes  into 
a  community  not  to  disseminate  religion  and  piety,  but  to  gather  money  and  to  earn  divi- 
dends; and  to  talk  otherwise  is  to  talk  nonsense  pure  and  simple,  just  such  nonsense  as 
the  editorials  of  certain  newspapers  have  been  spewing  out  here  on  the  community  and 
in  the  State  of  Virginia  without  the  slightest  scintilla  of  a  suspicion  or  a  shadow  of 
knowledge  of  the  fundamental  principles  of  government  or  anything  else  pertaining 
thereto. 

Let  us  go  on.  After  saying  that  the  Southern  railway  is  a  benefit  to  the  community  it 
serves,  and  the  money  invested  in  that  enterprise  is  entitled  to  the  most  careful  protec- 
tion, and  we  all  accord  it,  "but  the  property  of  the  citizens  of  Danville  is  just  as  sacred 
as  are  the  securities  of  that  company,  and  the  property-  rights  of  the  citizens  of  Virginia 
are  infinitely  higher  in  law  and  in  morals,  in  civilization  or  in  barbarism  than  are  the 
property  rights  of  the  holders  of  $120,000,000  of  pure  wind  and  water — it  goes  on: 

Xo  order  should  be  made  by  this  commission  which  will  deprive  it  of  a  dollar  in 
revenue  to  which  it  is  justly  entitled;  but  we  find  nothing  in  its  financial  condition  as 
shown  by  the  testimony  to  prohibit  a  change  of  rates  which  will  reduce  to  a  limited  ex- 
tent its  receipts.  This  is  not  a  question  of  revenue  altogether.  It  is  a  qtiestion,  to  an 
extent,  of  right  and  wrong.  The  beggar  upon  the  streets  has  no  right  to  steal  merely 
because  he  is  a  beggar,  nor  has  the  Southern  railway  a  right  to  do  an  unlawful  act 
merely  because  it  needs  revenue. 

The  state  of  its  revenues  has  bearing  upon  the  lawfulness  of  the  act,  but  is  not 
conclusive. 

:\rr.  Lindsay:    Vill  the  gentleman  kindly  tell  me  from  what  he  is  reading? 

Mr.  Withers:  The  decision  of  the  Interstate  Commerce  Commission,  denying  the 
petition  for  a  rehearing  in  the  case  of  the  city  of  Danville  and  others  vs.  Southern  Rail- 
way and  others,  rendered  on  the  17th  day  of  November,  1900;  and  on  the  31st  day  of 
December,  1900,  this  same  commission  issued  an  order  to  the  Southern  railway  to  desist 
and  cease  from  these  exactions  and  extortions,  and  the  Southern  railway  has  flipped  its 
finger  in  their  face  and  has  kept  right  serenely  on. 

Nov,-,  let  me  tell  you  what  that  means.  The  Southern  railway  extorts  in  excess 
freights  from  the  citizens  of  one  community  of  I'^fj''}*'^  people  in  the  State  of  Virginia 
$50,000  per  year  over  and  above  a  just  and  lawful  rate.  The  Commissioner  of  Railroads  in 
this  State  has  stated  before  several  committees  that  the  intrastate  rate  was  one-tenth  or 
ten  per  cent,  of  the  total  business  done.  Therefore  the  intrastate  rate  at  Danville  is 
about  one-tenth  of  what  the  interstate  rate  is.  or  a  little  in  excess  thereof,  and,  therefore, 
with  that  as  a  basis,  taking  the  finding  of  the  commission  as  to  the  exactions  in  inter- 
state freight  rates  extorted  from  the  citizens  of  Danville  over  and  above  charges  that  are 
just  and  lawful,  and  adding  the  intrastate  extortions,  you  will  see  that  the  citizens  of 
Danville  pay  $55,000  tax  per  annum  to  the  Southern  railway  in  the  shape  of  unjust  and 
extorted  freight  rates  in  excess  of  what  a  tribunal  has  said  is  a  just  and  lawful  freight 
rate. 

Vhat  does  that  mean?  It  means  that  S55.000  is  extorted  from  our  pockets;  that 
the  plans  of  a  reorganization  committee  in  Wall  street  takes  from  the  business  and  in- 
dustries of  one  community  in  your  State  $55,000,  while  that  same  community  pays  in 
State  taxes  on  real  and  personal  property,  capitations  and  income,  the  State  taxes  on 
those  four  amounting  to  §42.946.72.  while  this  great  civilizer  extorts  from  that  same 
community,  in  excess  of  what  is  a  just  and  lawful  rate  of  freight,  the  sum  of  $55,000,  or 
it  extorts  in  an  unjust  and  unlawful  way.  over  and  above  a  just  and  lawful  freight,  the 
sum  of  S12.055.2S  more  than  that  community  pays  in  State  taxes  on  the  four  subjects  of 
real  and  personal  property,  capitations  and  income. 
14.5 — Const.  Deb. 


2298 


DEBATES  OF  THE  COXSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


What  else  does  it  mean?  It  means  that  the  city  of  Danville  pays  to  this  reorgani- 
zation committee,  the  sacredness  of  whose  wind  and  water  stock  is  sought  to  be  pro- 
tected by  this  Constitutional  Convention,  by  way  of  exaction  and  extortion  over  and  above 
a  just  and  lawful  freight  rate,  more  in  amount  per  annum  than  is  paid  into  the  State 
treasury  on  real  estate,  capitations,  income  and  personalty  by  any  county  of  this  old 
Commonwealth  than  by  any  city  except  Richmond,  Norfolk  and  Lynchburg. 

They  talk  about  taxes!  Levying  burdens  upon  the  people!  They  talk  about  civili- 
zation, advancement,  progress,  business,  industry,  these  great  civilizers,  these  great 
moralizers,  this  patriotic  committee  sitting  in  some  Wall  street  office  to  fix,  perchance, 
just  exactly  the  rate  that  the  business  will  bear  and  taking  in  that  way  over  and  above 
a  just  and  lawful  freight  rate  from  the  citizens  of  one  community  more,  by  $12,000,  than 
any  community  in  this  old  Commonwealth  pays  in  State  taxes  on  the  four  subjects 
named  to  the  State  treasury,  and  more  than  is  paid  by  any  city  on  the  same  four  subjects 
named,  except  the  cities  of  Richmond,  Norfolk  and  Lynchburg! 

Unpopular?  Dangerous?  Not  a  fundamental  principle?  Unreasonable,  anarchistic, 
populistic,  socialistic,  any  sort  of  "  istic  "  except  the  right  and  moral  law  that  should 
say  to  a  corporation  that  acts  as  highwayman  when  it  can,  "  You  shall  not  take 
from  the  citizens  of  Virginia  to  pay  the  holders  of  watered  stock  dividends  in  excess  of 
a  just  and  lawful  rate  of  freight,  more  than  communities  pay  in  State  taxes  into  the  State 
treasury  on  all  of  the  four  subjects  named." 

What  did  they  do?  Obey  the  order?  Laughed  at  you,  sneered  at  the  relief  you 
would  not  give  and  that  we  did  not  get.  That  case  is  now  pending  in  the  district  court. 
The  railroads  have  appealed  it  there.  Then  to  the  Circuit  Court  of  Appeals,  then  to  the 
Supreme  Court  of  the  United  States,  And  so  it  goes.  How  did  the  city  get  in  the  court? 
It  got  in  the  Court  by  the  Business  Men's  Association  and  the  Tobacco  Association  meet- 
ing and  requesting  the  council  that  out  of  the  city  funds  money  should  be  appropriated 
in  order  that  a  fight  might  be  made  in  the  courts  to  remedy  this  wrong.  How  did  it 
get  representation?  By  the  attorneys  of  that  city,  or  part  of  them,  volunteering  their 
services  without  pay  to  fight  it,  and  by  employing  one  attorney,  a  distinguished  Vir- 
ginian in  Washington  city,  to  argue  the  case  before  the  commission. 

Counsel,  Holmes  Conrad,  A.  M.  Aiken,  judge  of  the  corporation  court  of  the  city, 
Berryman  Green,  N.  T.  Green,  W.  T.  Harris.  My  law  partner  was  a  lawyer  in  that,  and 
I  was  a  witness,  and  was  subjected  to  the  incisive  cross-examination  of  my  distinguished 
friend  from  Norfolk  (Mr.  Thom). 

That  is  how  the  city  got  into  the  courts  to  get  its  relief,  and  I  come  here,  gentle- 
men of  this  committee,  not  as  an  attorney  pleading  a  cause,  or  a  case  that  is  in  court, 
but  as  a  citizen  demanding  for  the  communitii^s  of  Virginia  the  right  to  control  a;?  to 
intrastate  rates,  the  manoeuvers  and  manipulations  of  a  corporation  that  inflicts  upon 
us  such  wrongs  and  injuries. 

Mr.  Thorn:  I  should  like  to  say  also  to  the  committee  that  my  participation  in  that 
case  was  as  attorney  for  the  Atlantic  and  Danville,  and  that  I  never  had  any  connection 
with  it  except  as  attorney  for  the  Atlantic  and  Danville  road,  and  never  have  had  any 
since  the  Atlantic  and  Danville  road  was  leased. 

Mr.  Withers:  I  had  no  desire  to  do  the  gentleman  any  injustice.  I  simply  wanted 
it  known  that  I  was  interested  in  the  case. 

On  motion  of  Mr.  James  W.  Gordon,  the  committee  rose,  and  the  president  resumed 
the  chair. 

The  hour  of  2  o'clock  having  arrived,  the  Convention  took  a  recess  until  4  o'clock  P.  M. 
At  the  expiration  of  the  recess  the  Convention  resumed  its  session. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton,  the  Convention  resolved  itself  into  the  Committee  of  the 
Whole,  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Eggleston  in  the  chair. 


DEBATES  OE  THE  COXSTITUTIOXi-L  COXVEXTIOX  OE  VIRGIMA. 


2299 


:\rr.  T^'iihers:  Mr.  Chairman,  in  the  hurry  of  coming  to  a  stop  in  a  sentence  in  vMch 
the  gentleman  from  Richmond  fMr.  Gordon)  interrupted  me,  I  did  not  finish  ^hat  I  was 
intending  to  say  and  starting  to  say  in  reference  to  the  appearance  of  counsel  in  this 
petition;  and  by  not  finishing,  I  probably  did  my  friend  from  Norfolk  an  injustice.  I 
intended  to  finish  what  I  had  to  say  by  stating  that  the  Southern  railway  was  repre- 
sented by  Br.  Baxter  and  Gen.  Henderson  and  the  answer  was  signed,  in  addition,  by  Mr. 
Fairfax  Harrison.  The  Atlantic  and  Danville  road  was  at  that  time  represented  by  my 
friend  from  Norfolk  (Mr.  Thom),  to  whom  I  referred  when  I  said  I  was  incisively  cross- 
examined;  but  pending  the  suit  the  Atlantic  and  Danville,  as  we  familiarly  called  it,  was 
leased  to  the  Southern,  and  after  that  lease  the  gentleman  from  Norfolk  no  longer 
appeared  in  the  suit.  ]\Iy  reference  to  myself  was  simply  to  let  the  Committee  of  the 
"VThole  know  the  fact  that  I  had  no  interest  in  it  except  as  a  citizen  and  a  witness  and 
that  interest  I  have  retained  to  this  day,  though  of  course  I  had  an  indirect  interest  in  it, 
my  law  partner  being  one  of  the  counsel  in  the  case. 

I  certainly  do  not  want  to  do  anybody  or  anything  an  injustice  in  an  argument,  and 
I  do  not  want  the  committee  for  a  moment  to  think  I  intended  putting  my  friend  in  a 
wrong  position,  because  my  sentence  was  inadvertently  not  completed  in  my  hurry  to  get 
through,  he  never  having  appeared  in  the  case  to  my  knowledge,  and  now  to  your  knowl- 
edge, since  that  leasing  occurred,  and  then  not  as  a  counsel  of  the  Southern  Railway 
company. 

Now,  Mr.  Chairman,  to  resume  where  I  left  oft.  I  was  trying  to  impress  upon  the 
committee  the  fact  that  as  a  plea  of  defense  in  that  cause  in  which  we  obtained  a  decision 
before  the  commission,  the  Southern  railway,  in  its  petition  for  a  rehearing,  alleged  as  a 
ground  for  keeping  up  the  excessive  rates  on  that  sliding  scale  from  Lynchburg  south, 
the  fact  that  it  must  earn  dividends  upon  its  mortgages  or  bonds  and  stock;  that  the 
commission  found  and  so  decided  and  that  decision  has  remained  uncontroverted  to  this 
day,  though  ft  was  entered  in  November,  1^)00.  that  of  that  stock  upon  which  they  were 
trying  to  earn  dividends,  S120.000  represented  water:  and  I  argued  that  it  was  no  reply 
then,  and  no  reply  now.  even  by  the  incisive  and  able  gentleman  from  Roanoke  TMr. 
Robertson!,  to  say  that  it  was  a  wrong  for  this  Convention  to  step  in  and  say,  "''It  is  not 
right  for  you  to  extort  tribute  from  the  people,  to  declare  dividends  upon  watered  stock;" 
and  I  appeal  to  the  highest  tribunal  in  this  country — 

]\Ir.  Robertson:  "Will  the  gentleman  allow  me  to  state  to  him  that  my  arg^jment 
was  entirely  on  general  lines  with  reference  to  possible  railroads,  as  well  as  the  existing 
ones,  and  was  not  confined  to  a  particular  case  of  any  particular  railroad.  The  gentle- 
man ought  not  to  put  me  in  the  position  of  making  any  statement  at  all  about  anything 
of  that  kind.    Your  argument  is  on  an  entirely  different  line  from  mine. 

Mr.  Withers:  But  the  gentleman  must  see  that  my  reply  to  his  argument  is,  it  is 
not  sound  simply  because  these  circumstances  arise  under  it. 

Mr.  Robertson:  I  leave  it  to  the  Convention  whether  it  is  sound  or  not — because 
one  railroad  company  has  watered  stock,  all  companies  for  all  time  to  come  will  have  it. 

Mr.  T^'ithers:  I  leave  it  to  the  Supreme  Court  of  the  United  States  also  to  say 
whether  it  is  sound. 

In  the  celebrated  Nebraska  case  of  Smyth  vs.  Ames,  the  Supreme  Court  of  the  United 
States  laid  down  this  principle  as  to  dividends  upon  stock  and  the  right  to  demand  of  the 
country  such  earnings  and  profits  as  would  enable  corporations  to  pay  dividends  upon 
stock: 

If  a  railroad  corporation  has  bonded  its  propertv  for  an  amount  that  exceeds  its 
fair  value — 

Now.  let  me  interject  here  to  say  that  that  applies  to  bonds,  when  it  says  to  an 
amount  that  exceeds  its  fair  value — 

Or  if  its  canitalization  is  largely  fictitious,  it  may  not  impose  upon  the  ntiblic  the 
burden  of  such  increased  rates  as  may  be  required  for  the  purpose  of  realizing  profits 


2300 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


upon  excessive  valuation,  or  fictitious  capitalization;  and  the  apparent  value  of  the 
property  and  franchises  used  by  the  corporation  as  represented  by  its  stocks,  bonds 
and  obligations,  is  not  alone  to  be  considered  when  determining  the  rates  that  may  be 
reasonably  charged. 

Citing  many  cases,  and  saying  that  in  the  case  of  Covington  and  L.  Turnpike  Com- 
pany vs.  Sanford: 

It  cannot  be  said  that  a  corporation  is  entitled  of  right,  and  without  reference  to 
the  interests  of  the  public,  to  realize  a  given  per  cent,  upon  its  capital  stock.  When 
the  question  arises  whether  the  Legislature  has  exceeded  its  constitutional  power  pre- 
scribing rates  to  be  charged  by  a  corporation  controlling  a  public  highway,  stockholders 
are  not  the  only  persons  whose  rights  or  interests  are  to  be  considered.  The  rights 
of  the  public  are  not  to  be  ignored. 

Now,  to  sustain  my  charge,  made  by  authority  of  that  commission,  and  to  this  day 
undenied  by  that  company,  I  want  to  cite  from  the  authority  to  which  Mr,  Baxter,  in 
question  after  question,  referred  Mr.  Culp,  and  asked  him  from  that  authority  to  give 
the  dates  of  certain  railroad  reorganizations,  certain  railroad  consolidations,  and  certain 
railroad  operations  of  a  stupendous  nature,  to  wit:  Poor's  Manual  of  Railroads.  I  want, 
Mr.  Chairman,  to  cite  that  to  sustain  the  position  that  this  company  cannot  expect,  upon 
its  enormous  capitalization  and  upon  its  enormous  bonding,  to  lay  tribute  upon  this 
whole  Southern  country  in  order  that  certain  obligations  may  be  met. 

Poor's  Manual  of  Railroad  for  1901  shows  the  capitalization  of  the  Southern  Railway 
for  the  years  1895,  189G,  1897,  1898,  1899  and  1900.  It  shows  there  was  of  common  stock 
for  each  one  of  those  years  $120,000,000,  judiciously  bound  by  a  decision  that  I  have  read 
in  your  presence  to  represent  nothing  but  water;  that  there  was  a  preferred  stock,  be- 
ginning with  1895,  of  $50,000,  and  gradually  increasing  until  1899  and  1900,  when  it  had 
increased  to  $G0,000;  that  there  was  a  funded  debt,  beginning  with  1895,  of  $74,351,000,  and 
increasing  until,  in  1900,  it  aggregated  $104,970,000;  that  there  were  leasehold  securities 
in  1895  of  a  fraction  over  $24,000,000,  in  1900  of  a  fraction  under  $26,000,000;  that  the 
total  liabilities  of  this  railroad  company  had  increased  from  $274,941,421  in  1895  to 
$328,750,820  in  1900,  an  increase  of  $74,000,000;  and  yet,  on  page  228  of  his  deposition, 
urging  as  a  reason  for  the  keeping  up  of  these  high  freight  and  tariff  rates  on  the  part 
of  the  Southern  railway,  Mr.  Culp  says: 

The  rates  named  are  as  low  or  lower  than  any  preceeding  rates  to  Danville.  They 
are  as  low,  indeed  lower,  relatively,  than  rates  fixed  by  railroad  commissions  in  the 
South  having  power  to  fix  rates. 

Let  me  say  here  it  is  due  to  the  Baltimore  rate  of  the  Chesapeake  and  Ohio. 

They  are  lower  than  can  be  made  by  any  other  mode  of  transportation.  They,  taken 
in  connection  with  other  rates  charged  by  the  Southern  railway,  with  its  volume  of 
business,  all  the  business  that  it  can  by  energy  and  facility  secure,  do  not  pay  an  ade- 
quate return  on  the  present  reduced  capitalization  of  the  Southern  railway. 

Reduced  capitalization  of  the  Southern  railway!  Was  anything  more  absurd  ever 
uttered  in  all  the  tide  of  time,  when  by  their  own  returns  to  their  own  authority,  they 
show  that  they  have  increased  their  liabilities  $54,000,000,  and  their  preferred  stock, 
which  I  presume  does  represent  something,  from  the  first  year,  1895,  when  they  made  the 
report,  up  to  1900,  they  had  increased  that  $10,000,000;  so  that  the  reduced  capitalization 
of  the  Southern  railway,  as  testified  to  by  Mr.  Culp,  means  an  increase  in  the  preferred 
stock,  the  only  stock  representing  anything  more  than  water,  from  that  time,  when  it 
first  made  its  report  to  Poor's  Manual  of  Railroads,  up  to  the  year  that  Mr.  Culp  was 
testifying,  of  $10,000,000. 

Mr.  Thom:  Does  the  gentleman  knov/  whether  that  increase  of  capital  to  which  he 
alludes  does  not  represent  additional  property? 

Mr.  Withers:    I  suppose  it  does,  sir.    That  is  just  my  idea.    The  other,  and  watered 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIO^'  01  VIRGINIA. 


2301 


capitalization,  however,  was  during  those  five  years,  1S95,  1S9G,  1897,  1898,  1899,  and  1900, 
not  reduced  one  dollar,  according  to  their  returns. 

Now  therefore,  I  suhmit,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  by 
their  own  record,  bv  their  own  returns,  they  have  shown  that  they  have  much  watered 
stock  upon  which  to  earn  dividends,  and  that  the  highest  court  of  this  land  has  sustained 
the  finding  of  the  Interstate  Commerce  Commission  that  the  right  of  a  corporation  to 
earn  dividends  upon  stock  that  represents  nothing  must  be  done  solely  with  reference  to 
the  rights  of  the  public. 

I  hasten  on  to  my  next  point.  It  will  be  ingeniously  and  ably  argued  to  this  com- 
mittee, as  has  already  been  done,  that  this  relief  should  be  sought  through  the  General 
Assembly  of  Virginia. 

Mr.  Thorn:  Before  my  friend  goes  to  that  and  in  order  that  I  may  get  in  my  mind 
what  he  has  said,  where  do  I  understand  him  to  say  this  watered  stock  is;  in  what  class? 

Mr.  Withers:  The  common  stock.  That  is  the  decision  of  the  Interstate  Commerce 
Commission. 

Mr.  Thom:    Has  there  ever  been  a  dividend  paid  on  the  common  stock? 

Mr.  Withers:  Not  to  my  knowledge.  I  read  that  fact  from  the  Interstate  Commerce 
Commission's  decision  this  morning,  and  the  further  fact  they  said  they  had  no  right  to 
earn  it  except  by  reasonable  rates  with  reference  to  the  public  rights. 

It  has  been  and  will  be  again,  I  say,  very  probably,  argued  to  this  committee  that 
this  is  a  legislative  matter,  that  redress  should  be  sought  there  and  remedy  should  be 
asked  from  that  body.  I  want  co  show  the  committee  that  redress  has  been  sought;  that 
the  facts  as  I  have  stated  them  here  to  you  were  known  to  the  General  Assembly  at  its 
special  session  of  1901;  that  this  petition  signed  by  the  city  of  Danville,  by  its  clerk  of 
council,  by  the  Business  Men's  Association,  acting  through  its  president  and  its  secretary 
under  duly  authorized  resolution,  by  its  Tobacco  Association,  acting  by  its  president 
duly  authorized,  and  by  these  firms,  corporations  and  individuals,  has  knocked  at  the 
door  of  the  General  Assembly  of  Virginia,  and,  after  reciting  the  facts  that  I  have  recited 
to  you  on  this  floor  at  length  and  in  full,  that  petition,  which  was  presented,  as  I  shall 
show  you,  from  the  official  record  of  the  Senate  journal  and  documents  of  that  special 
session,  concludes: 

They  are  advised  that  railroads  are  public  highways,  and  the  fundamental  charac- 
teristics of  public  highways  is  the  right  of  all  persons  to  use  those  highways  on  equal 
terms;  and  for  railroads  to  deny  this  equality  is  a  misuser  of  their  franchises  and  good 
cause  for  their  forfeiture;  and  for  a  State  to  permit  a  railroad  of  its  own  creation,  or 
those  doing  business  within  its  limits  to  build  up  one  of  its  cities  at  the  expense  of 
another  or  to  oppress  one  part  of  its  inhabitants  with  burdens  in  order  that  favors  may 
be  bestowed  upon  others,  is,  they  respectfully  submit,  an  indefensible  act  of  govern- 
ment. 

Your  petitioners  further  show  that  the  city  of  Danville,  in  its  own  name  and  in 
concert  vrith  a  number  of  its  citizens  feeling  aggrieved  at  the  acts  recited  above — 

Which  are  the  acts  which  I  have  detailed  here  at  tedious  length  to  the  Committee 
of  the  Whole — 

and  finding  that  Section  1208  of  the  Code  of  Virginia.  1887.  which  they  believe  would 
have  given  them  partial  relief  in  the  courts  of  the  State,  had  been  repealed,  laid  the 
subject  of  said  discriminations  before  the  Interstate  Commerce  Commission,  and  that 
tribunal,  after  hearing  and  rehearing  this  case,  in  two  decisions  sustained  the  charge 
of  the  city  of  Danville  and  ordered  the  said  discriminations  to  cease;  but  the  Southern 
Railway  company  has  refused  to  obey  the  order  of  the  commission,  and  is  preparing 
to  appeal  to  the  Federal  courts,,  when  the  case  mar  ^)e  long  delayed,  while  in  the  mean- 
time the  ruinous  discrimination  will  go  on  against  the  city  of  Danville. 

Your  petitioners  therefore  pray  that  the  General  Assembly  may  re-enact  Section 
1208  of  the  Code  of  1887,  and  give  to  the  citizens  of  Danville  a  remedy  in  the  courts  of  the 
State  against  the  wrongs  and  injuries  of  which  they  complain.  And  they  will  ever 
pray.  &c. 

Now,  what  does  that  mean?    It  means  that  the  Code  of  Virginia,  by  Sections  1207 


2302  DEBATES  OF  THE  CONSTITUTIO^fAL  CONVENTION  OF  VIRGINIA. 

and  1208,  which  I  will  not  tire  you  by  reading — but  I  will  ask  that  Section  1208  be  made 
a  part  of  the  official  record  and  of  my  remarks — declared  certain  acts  by  common  carriers 
to  be  illegal  and  in  violation  of  the  law  of  the  land,  and  that  Section  1213  gave,  by  bill  in 
equity,  a  method  of  relief  to  citizens  or  corporations  who  might  have  been  aggrieved  by 
the  acts  specified  as  wrongs  in  Sections  1207  and  1208  of  the  Code;  that  a  subsequent 
Legislature  did  a  most  remarkable  and  unheard-of  thing — it  repealed  Section  1208,  which 
declared  that  certain  acts  by  common  carriers  should  be  violations  of  the  law,  and  yet 
left  Section  1213  intact  and  unrepealed,  leaving  therefore  the  remedy  of  a  bill  in  equity 
to  go  into  court  and  complain  of  a  wrong  that  had  by  Section  1208  been  declared  to  be 
in  violation  of  law,  and  yet  the  remedy  was  left  and  the  section  declaring  the  act  a 
wrong  was  repealed. 

Section  1208  of  the  Code  of  Virginia  of  1887,  is  as  follows: 

Sec.  1208.  No  undue  Preference  Allowed  or  Disadvantage  to  be  Imposed. — No  rail- 
road company  or  canal  company  or  other  common  carrier  chartered  by  or  doing  business 
in  this  State  shall  make  or  give  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  particular  description  of  traffic, 
in  any  respect  whatever;  nor  shall  any  such  company  or  other  common  carrier  subject 
any  particular  person  or  company,  or  any  particular  description  of  traffic,  to  any  undue 
or  unreasonable  prejudice  or  disadvantage  in  any  respect  whatsoever;  and  every  rail- 
road company  and  canal  company  and  other  common  carrier  shall  according  to  their 
respective  powers  afford  all  reasonable  facilities  for  the  receiving  and  forwarding  and 
delivering  of  traffic  upon  and  from  the  several  railroads  and  canals  and  steam  or  sail  ves- 
sels belonging  to  or  worked  by  such  companies,  respectively,  and  for  the  return  of  car- 
riage, boats,  trucks  and  other  vehicles.  Every  railroad  company  and  canal  company 
and  other  common  carrier  having  or  working  railroads  or  canals  or  vessels,  which  form 
part  of  a  continuous  line  of  railroad  or  canal  or  other  communication,  or  which  have 
the  terminus,  station  or  wharf  of  the  one  near  the  terminus,  station  or  wharf  of  the 
other,  shall  afford  all  due  or  reasonable  facilities  for  receiving  and  forwarding  all  the 
traffic  arriving  by  one  of  such  railroads  or  canals  or  other  lines  by  the  other,  without 
any  reasonable  delay,  and  without  any  such  preference  or  advantage,  or  prejudice  or 
disadvantage,  as  aforesaid,  and  so  that  no  obstruction  may  be  offered  to  the  public  de- 
sirous of  using  such  railroads  or  canals  or  other  lines  as  a  continuous  line  of  communi- 
cation, and  all  reasonable  accommodation  may,  by  means  of  the  railroads  and  canals 
and  other  lines  of  the  several  companies,  be  at  all  times  afforded  to  the  public  in  that 
behalf. 

Therefore  we  went — and  by  "we"  I  mean  the  citizens  of  Danville;  I  was  not  a  signer 
of  that  petition — to  the  General  Assembly  at  its  special  session  in  1901  and  presented  a 
petition,  the  conclusion  of  which  I  have  just  read  to  you;  and  here  is  the  result.  On  page 
97  of  the  Acts  of  the  Senate  journals  and  documents  of  the  special  session  of  1901,  and 
on  Saturday,  February  9,  1901 — 

The  President  of  the  Senate  laid  before  the  body  a  memorial  to  the  General  As- 
sembly from  the  city  of  Danville,  which  was  referred  to  the  Committee  on  Roads  and 
Internal  Navigation. 

That  is  the  first  act  of  the  tragedy.  On  page  158  of  that  same  book,  Thursday,. 
February  14,  1901,  this  record  is  shown: 

No.  219.  House  bill  to  reenact  Section  1208  of  the  Code  of  1887,  repealed  by  the 
act  of  the  General  Assembly  of  Virginia,  approved  March  3,  1892,  and  to  amend  and  re- 
enact  said  Section  1208,  and  Section  1213  of  said  Code  of  1887. 

Reporting  the  fact  that  the  House  of  Delegates  had  passed  a  bill  which  the  petition 
of  the  citizens  of  that  city  requested  to  be  passed;  and  I  quote  again: 

Mr.  James  moved  that  the  bill  be  sent  to  the  Committee  on  General  Laws,  which 
was  rejected. 

That  is  the  second  act  of  the  tragedy,  or  comedy,  as  you  may  see  fit  to  describe  it^ 
On  page  162  of  the  same  book,  and  on  Friday,  February  15,  1901 — 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2303 


Mr.  James  moved  that  the  Committee  on  Roads  and  Internal  Navigation  be  dis- 
charged from  the  further  consideration  of  House  bill  No.  219,  to  reenact  Section  1208 
of  the  Code  of  1887,  repealed  by  the  act  of  the  General  Assembly  of  Virginia,  approved 
March  3,  1892,  and  to  amend  and  reenact  said  Section  1208  and  Section  1213,  of  said 
Code  of  1887,  which  was  rejected. 

And  there  was  sounded  the  death-knell  of  the  petition  of  the  citizens  of  Virginia  to 
re-enact  into  the  law  a  section  of  the  Code  which  had  declared  certain  acts  of  common 
carriers  a  violation  of  the  law,  and  which  had  been  repealed  while  the  repealing  statute 
left  the  remedy  without  anything  to  correct  or  rectify. 

Mr.  Thorn:  Does  my  friend  not  know,  and  is  it 'not  an  important  point  in  this 
matter,  that  the  reason  that  matter  was  not  considered  at  that  session  of  the  Legislature 
was  that  a  resolution  had  been  passed  long  prior  to  the  filing  of  that  petition,  that 
inasmuch  as  this  was  a  special  session,  no  matter  which  would  provoke  controversy 
would  be  considered? 

Mr.  Withers:  I  have  been  so  informed,  sir,  and  was  going  to  state  it.  The  Senate 
passed  that  resolution,  as  I  understand  it. 

Mr.  Thorn:  And  the  Senate  passed  it  long  before  the  appearance  of  this  application 
from  Danville,  and  covered  not  only  that,  but  all  matters. 

Mr.  Withers:    I  understand  that  was  done  by  the  Senate,  but  not  by  the  House. 

Mr.  Thom:  The  House  passed  it,  and  when  it  came  to  the  Senate,  that  operated  not 
only  to  keep  this  matter  out,  but  to  keep  out  a  matter  with  reference  to  a  bridge  at 
Norfolk. 

I\Ir.  Withers:  As  the  gentleman  says,  that  resolution  was  passed  prior  to  the  intro- 
duction of  this  petition;  but  I  should  not  think  that  such  a  petition,  making  such  a 
request,  could  possibly  cause  controversy  on  the  floor  of  any  Assembly  of  Virginia, 
either  in  the  Senate  or  House  of  Delegates.  I  heard  no  opposition  to  it.  There  may 
have  been  opposition,  but  I  can  see  no  just  grounds  for  the  opposition. 

Mr.  Thom:  But  my  friend  does  not  by  that  mean  to  say  the  people  of  Virginia  or 
the  representatives  of  the  people  of  Virginia  have  not  a  right  to  differ  with  him  and  see 
grounds  for  it? 

Mr.  Withers:  Oh,  not  at  all,  sir.  They  exercised  that  right  at  that  time,  to  my 
dissatisfaction  and  discomfort.  The  fact  remains  that  we  have  done  everything  in  our 
power  to  get  before  the  Legislature  our  petition  and  our  demand  for  redress;  and  I  call 
your  attention  to  the  fact  that  this  Senate  convened  on  the  23rd  day  of  January,  and  a 
petition  was  prepared  and  sent  down  here  with  all  possible  haste  and  expedition. 

Then,  again,  and  I  must  hurry  on  to  a  close— let  us  see  what  this  business  of  classi- 
fication is.  Let  us  see  if  we  cannot  understand.  Let  us  first  take  the  report  of  the 
Interstate  Commerce  Commission  for  the  year  1900,  published  December  24,  1900. 

As  is  well  understood,  merchandise  is  thrown  into  various  classes  for  the  purpose 
of  determining  the  freight  rate  at  which  it  shall  be  transported.  The  rate  varies  with 
the  different  classes,  so  that  the  change  of  a  particular  article  from  one  class  to  another 
operates  to  change  the  rate  upon  that  article.  For  example,  the  first  class  rate  from 
New  York  to  Chicago  is  75  cents  per  hundred  pounds,  and  the  second  class  is  65  cents 
per  hundred  pounds.  If.  therefore,  a  kind  of  merchandise  which  has  been  classified 
as  second  class  is  transferred  to  the  first  class,  the  rate  upon  that  merchandise  is  thereby 
advanced  from  C5  to  75  cents  per  hundred  pounds. 

This  is  said  to  be.  by  those  who  know,  a  favorite  device  of  common  carriers  to  raise 
rates  without  that  fact  being  apparent  to  the  public.  I  submit  this  report  of  the  com- 
mission on  the  point  that  it  is  a  very  successful  device. 

On  January  1st,  1900.  carriers  operating  in  the  territory  above  described, 
put  into  effect  a  new  classification  known  as  official  classification  No.  20,  which 
superseded  the  classification  previously  in  effect,  known  as  No.  19.  The  changes  made 
by  this  new  classification  were  824,  of  which  SIS  produced  an  advance  and  fixed  a 
reduction  in  the  rate.  The  number  of  these  changes,  with  the  per  cent,  of  advance  or 
reduction  in  the  previous  rate,  were  as  follows:    Four  hundred  and  thirty-four  ratings 


2304  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

advanced  42.8  per  cent.;  214  ratings  advanced  30  per  cent.;  100  ratings  advanced  20  per 
cent.;  32  ratings  advanced  15.3  per  cent.;  17  ratings  advanced  16.6  per  cent.;  10  ratings 
advanced  50  per  cent.;  6  ratings  advanced  100  per  cent.;  2  ratings  advanced  25  per 
cent.;  2  ratings  advanced  33.3  per  cent.,  and  1  rating  advanced  85.7  per  cent. 

Reductions,  three  ratings  reduced  30  per  cent.,  and  three  ratings  reduced  14.3  per  cent. 

The  average  advance  on  the  whole  818  articles  was  35.5  per  cent,  I  will  show  you 
in  a  minute  that  they  have  done  that  sort  of  work  down  here. 

That  is  the  difficulty,  Mr.  Chairman  and  gentlemen  of  the  committee,  of  a  layman, 
speaking  of  him  with  reference  to  railroad  rates  and  classification,  mastering  the  secrets, 
the  intricacies  and  the  difficulties  of  dealing  with  transportation  companies.  Now,  one  of 
the  great  advantages  of  a  commission  is  that  those  things  are  made  known  to  the  public. 
North  Carolina  makes  them  known.  I  have  the  despised  statistics  here.  South  Caro- 
lina makes  them  known:  I  have  them  here.  Georgia  makes  them  known:  I  have  them 
here,  Texas,  with  John  H.  Reagan  at  the  head  of  its  commission,  makes  them  known, 
and  I  have  them  here.  Under  a  commission,  we  can  know  something  about  what  we  are 
paying  as  compared  with  other  people.  We  cannot  know  it  under  the  railway  classifica- 
tion and  rating.  They  cannot  arbitrarily  by  reclassification  change  sugar  from  the  fifth 
class  to  the  third  class,  and  enormously  increase  it,  without  knowledge  of  how  it  is  done. 
They  cannot  put  into  effect  many  of  the  changes  that  are  resorted  to  by  wholesale — and 
by  wholesale  I  mean  by  a  change  or  advance  by  classes;  and  when  150  articles,  say,  are 
advanced  from  class  six  to  class  five,  how  do  you  get  release?  They  advance  by  the 
wholesale.  They  compel  any  one  complaining  to  specify  article  by  article,  and  demand 
relief  by  retail. 

And  so  it  goes.  Now,  this  dem.and  for  railroad  commissions  is  not  local;  it  is  not 
populistic;  it  is  not  anarchistic;  it  is  not  unreasonable;  it  is  not  in  the  interests  of  the 
rabble  and  the  hoi  polloi,  and  the  proletariat;  but  it  is  demanded  by  the  business  inter- 
ests of  Virginia;  it  is  demanded  by  the  chamber  of  com^merce,  by  the  boards  of  trade,  the 
business  men's  associations,  the  tobacco  associations.  It  is  demanded  by  those  upon 
whose  business  a  toll  is  put,  upon  whose  traffic  a  tribute  is  laid.  It  is  demanded  by  the 
men  who,  from  their  own  personal  contact,  have  realized  that  the  power  that  controls  and 
gives  life  to  corporations  should  exercise  the  right  to  restrain  them  within  reasonable 
and  proper  rules  and  regulations.  It  is  arising  from  all  over  this  country.  It  has  not 
merely  been  demanded  by  the  interstate  Commerce  Commission,  but  it  has  been  recom- 
mended recently  by  the  Industrial  Commission,  which  has  been  laboring  for  years  to  get 
at  the  facts  of  the  business  industries  of  this  country  to  see  what  was  the  cause  of  the 
accumulation  of  so  much  wealth  in  the  hands  of  so  few,  and  the  increasing  poverty 
among  the  great  many.  It  has  been  demanded  by  the  businesses  of  Chicago.  The  Inter- 
state Commerce  Commission  has  but  lately  been  summoned  there  to  disclose  and  to  show 
the  combine,  whereby  the  great  packers  of  the  city,  like  the  Standard  Oil  Company, 
could  ship  at  much  better  rates  than  the  smaller  dealers;  and  though  at  first  they  fled 
and  escaped  the  summons  of  the  official,  at  last,  publicity  forcing  them  to  it,  presumably, 
they   consented  to  appear  before  that  body  and  testify. 

Just  the  other  day,  or  but  a  few  weeks  ago,  there  happened  in  New  York  city,  the 
presumable  center  of  trade  and  commerce,  and  improved  methods  of  both  in  this  country, 
a  horrible  accident  in  a  tunnel  on  the  line  of  the  New  York  Central  and  Hudson  River 
railroad,  which  calls  itself  America's  best  railroad.  What  was  the  result?  Several 
persons  were  killed;  many  more  were  injured.  What  did  the  railroad  try  to  do?  It  put 
upon  the  engineer  the  responsibility  of  the  accident,  that  he  had  not  observed  the  signal. 
It  threw  him  into  practically  a  collapse,  mental  and  nervous,  because  of  the  horror  of  his 
situation.  As  soon  as  the  facts  became  known,  it  was  found  out  that,  not  only  had  that 
road  violated  the  law  as  to  running  trains  on  the  same  track  in  different  directions,  but 
that  the  reason  the  engineer  could  not  see  the  signal  was  due  to  the  fact  that  they  had 
violated  another  law  which  said  that  they  should  not  burn  soft  coal  in  that  tunnel,  and 
that  the  burning  of  soft  coal  kept  him  from  seeing  the  signal  that  was  undoubtedly 
displayed. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGIIsTIA. 


2305 


I  cite  that  to  show  that  we  are  not  alone,  that  even  in  New  York,  mastered,  domi- 
nated and  controlled  by  the  New  York  Central,  there  is  rising  a  demand  for  a  vigorous 
and  firm  control  of  railroads. 

Let  us  see  if  I  cannot  sustain  it.  The  Review  of  Reviews  would  hardly  be  called  a 
radical  publication.  It  dips  with  a  dilettante  hand  into  anything  pertaining  to  wealthy 
corporations  and  the  men  who  control  them;  but  it  does  make  an  admirable  criticism 
along  the  very  line  we  are  now  going.  After  reciting  the  facts  practically  as  I  have 
recited  them,  it  says: 

It  would  be,  of  course,  frivolous  in  the  highest  degree  to  divert  blame  from  the 
real  culprits  to  the  unfortunate  engineer — 

TiTiich  was  attempted  to  be  done.    Then  it  goes  on,  citing  the  lesson  for  the  public: 

It  would  seem  that  nothing  short  of  the  imminent  danger  that  all  the  directors  and 
high  officers  of  the  offending  railroads  might  be  held  answerable  for  fatal  accidents, 
could  impel  them  to  meet  an  obvious  problem  decisively  and  with  breadth  of  view.  For 
years  these  gentlemen  have  hinted  in  a  mysterious  way  that  they  were  giving  deep 
thought  to  these  matters,  and  bave  assured  the  public  it  had  only  to  trust  in  them  and 
wait,  and  all  would  be  delightful. 

The  New  York  Central  has  had  to  deal  with  much  too  good-natured  and  tolerant  a 
public.  More  than  any  other  railroad  company  in  the  history  of  America,  with  one 
possible  exception,  it  has  understood  how  to  cultivate  good  relations  in  politics  and  to 
keep  the  favor  of  the  press. 

A  skill  to  keep  the  favor  of  the  press  that  seems  to  have  been  transmitted  to  other 
sections  of  the  United  States. 

The  consummate  tact  with  which  it  has  been  managed  has  made  its  position  too 
comfortable;  and  hence  the  scandalous  neglect  of  improvements  that  ought  to  have  been 
made  years  ago.  The  main  lesson  to  be  learned  is  the  old  and  simple  one,  that  without 
any  exceptions  whatever  the  corporations  that  serve  the  public  are  absolutely  heartless 
and  soulless,  and  that  they  can  only  be  kept  up  to  their  duty  by  a  sturdy  and  rude 
assertion  of  rights  on  the  part  of  the  people.  The  New  York  Central  had  been  petted, 
pampered  and  indulged,  until,  with  its  great  financial  power  and  its  easy  dominance 
in  State  politics,  it  had  lost  all  sense  of  responsibility  to  the  public;  but  a  smash-up  and 
the  death  of  almost  a  score  of  well-knov;n  citizens  suddenly  stirs  it  to  action.  When 
the  excitement  dies  away  it  will  be  rather  hard  for  the  New  York  Central  to  keep  its 
promises  and  carry  out  its  program  of  improvement,  because  it  has  never  accustomed 
itself  to  doing  such  things  in  a  sweeping  and  thorough  way,  or  to  look  ahead  and  pre- 
pare for  the  future.  Constant  pressure  from  municipal  and  State  authorities,  as  well 
as  from  the  newspapers  and  the  travelling  public,  will  be  needed  to  get  the  thing  really 
done. 

Then,  after  going  on  and  complimenting  the  eminent  respectability  and  good  citi- 
zenship of  the  officials,  directors  and  officers  of  that  road  as  citizens  and  as  individuals, 
this  article  says: 

But  in  their  corporate  capacity  they  forget  their  duties  to  the  public. 

Mr.  O'Flaherty:    I  have  no  interest  in  railroads.    I  never  represented  one  in  my  life, 
and  I  do  not  own  any  stock;  but  I  should  like  to  know  if  it  is  your  idea  that  this  railroad 
commission,  if  it  is  created,  will  have  the  power  to  dictate  what  kind  of  coal  the  rail 
road  company  shall  burn,  as  intimated  in  that  article? 

Mr.  Withers:  Oh,  no;  not  unless  they  run  a  tunnel  under  the  city  hall  in  Richmond, 
and  it  should  be  absolutely  dangerous  to  life  to  use  coal  that  would  obscure  the  signal 
lights  which  was  exactly  what  was  done  in  that  case. 

I  wonder  if  the  gentleman  from  Clark  and  Warren  (Mr.  O'Flaherty)  is  really  serious 
in  asking  me  that  question.  I  wonder  if  he  really  means  to  say  that  he  thinks  I  think  a 
railway  commission  would  have  the  right  to  say  to  a  railroad  running  out  in  an  old 


2306 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


field  or  through  an  open  country  that  it  ought  not  to  use  soft  coal,  when  the  article  I 
have  read  says  that  the  reason  that  engineer  could  not  see  that  signal  in  that  tunnel  was, 
because  the  soft  coal  smoke  obscured  the  light,  and  it  was  not  visible,  and  the  reason  of 
the  ordinance  passed  by  the  city  of  New  Yorl^  that  prohibited  the  use  of  soft  coal  in  this 
tunnel  was  not  to  control  freight  rates,  but  because  of  the  very  fact  that  soft  coal 
obscured  signal  lights  and  they  could  not  be  seen  by  the  engineers  on  the  respective 
engines,  and  the  result  of  the  violation  of  that  ordinance  was  this  very  accident  whiclt 
occurred. 

Mr.  O'Flaherty:  I  do  not  see  that  the  incident  bears  on  your  argument.  Was  it 
cited  to  show  the  fact  that  they  violated  a  city  ordinance,  or  to  show  the  fact  that  we 
ought  to  have  a  railroad  commission  in  Virginia  with  power  to  dictate  what  kind  of  coal 
they  shall  use  in  tunnels,  as  you  say? 

Mr.  Withers:  I  will  try  to  answer  the  question.  It  was  cited  to  show  the  gentle- 
m.an  that  even  in  the  city  of  New  York,  owing  to  the  negligence  of  railroad  corporations, 
which  had  resulted  in  the  loss  of  life,  and  owing  to  the  violation  by  railway  corporations 
of  ordinances  as  well  as  of  State  railway  commission  rules,  the  railways  had  so  conducted 
themselves  that  even  so  conservative  and  so  prudent  and  so  careful  a  journal  as  the 
Review  of  Reviews  was  joining  in  a  demand  that  they  should  be  controlled  in  every  way. 

Mr.  O'Flaherty:  The  gist  of  this  whole  question  with  me  is,  is  it  intended  by  us  to 
give  this  railroad  commission  the  power  to  go  that  far  in  the  management  and  control  of 
railroad  companies? 

Mr.  Withers:  Just  as  soon  as  any  railroad  company  in  Virginia  goes  into  a  city  in 
Virginia  large  enough  to  force  it  to  go  under  a  tunnel,  and  the  use  of  soft  coal  in  that 
tunnel  will  keep  the  engineers  from  seeing  signals,  and  it  results  in  a  loss  of  life  such  as 
occurred  in  New  York  city,  then  this  railway  commission  ought  to  have  the  power  to  keep 
them  from  using  that  soft  coal. 

Let  us  see  the  intrastate  rate,  I  am  glad  the  gentleman  from  Clarke  and  Warren 
has  referred  to  the  soft  coal  question.  There  is  no  possibility  of  it  arising  here  until 
Richmond  becomes  a  great  city,  and  I  suppose  that  is  a  long  distance  off. 

Intrastate  rates  from  Norfolk.  Now,  here  is  the  proof  of  my  original  statement, 
that  a  railroad  which  would  make  discriminations  in  interstate  rates  when  they  are  pro- 
hibited by  a  national  law,  would  make  discriminations  in  intrastate  rates  where  there 
was  practically  no  prohibition. 

Norfolk  to  Danville,  presumably  from  Atlantic  and  Danville  division,  first  class,  5^ 
cents;  through  Danville  to  Lynchburg,  45  cents;  second  class,  46,  38;  third  class,  86,  30; 
fourth  class,  24,  20;  fifth  class,  21,  18. 

A,  B,  C,  D,  E,  H  and  P,  are  all  practically  the  same,  except  that  the  rates  on  those 
classes  are  lower  than  the  rates  on  classes  1,  2,  3,  4,  5,  and  6,  and  consequently  the  differ- 
ence is  not  so  great. 

Richmond  to  Danville,  43;  to  Lynchburg,  43. 

The  same  way  all  through,  Richmond  to  Danville,  through  Danville  to  Lynchburg,  the- 
same  intrastate  rates  as  to  stop  at  Danville. 

I  will  not  take  the  time  of  the  committee  to  read  this  long  table.  I  give  those  as 
Illustrations  from  it. 

Mr.  Thorn:  In  that  connection,  v/ill  my  friend  state  what  the  rate  from  Norfolk  to 
Lynchburg  is  by  the  short  line  of  the  Norfolk  and  Western? 

Mr.  Withers:  I  suppose  it  is  the  rate  through  Danville  to  Richmond  by  the  long^ 
route,  but  I  do  not  know. 

Let  us  take  one  or  two  comparisons  now,  and  I  have  great  tables  of  them  here,  as  to 
the  rates  on  the  Southern  railway,  which  has  parts  of  its  line  in  both  States,  as  to  rates 
on  the  Southern  railway  in  Virginia  and  in  North  Carolina,  and  not  on  the  Cheaspeake 
and  Ohio  railway,  which  is  compelled  to  give  Baltimore  and  Philadelphia  rates  in  order 
to  reach  Newport  News,  and  which  has  no  line  in  North  Carolina. 

Rates  between  stations  on  Washington  division,  twenty  miles.  Southern  Railway^ 
first  class,  20  cents.    Rates  between  Round  Hill  and  Washington  division— 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


230r 


Mr.  Hunton:  Is  not  the  rate  to  which  you  are  now  referring  the  rate  of  a  branch  of 
the  Southern  road? 

Mr.  Withers:    Yes,  sir. 

Mr.  Hunton:  Do  you  not  know  that  even  the  commissions  of  the  southern  States 
permit  the  roads  to  charge  from  10  per  cent,  to  50  per  cent,  more  on  branch  roads  and 
shorts  lines  than  they  do  on  the  trunk  lines? 

Mr.  Withers:    Yes,  sir. 

Mr.  Hunton:  So  that  I  think  it  is  unfair  for  the  gentleman  from  Danville  to  take 
branch  and  short  line  rates  for  comparison  with  main  line  rates. 

Mr.  Withers:  I  am  not  going  to  do  that.  The  gentleman  from  Fauquier  was  un- 
happy again. 

Mr.  Hunton:    The  gentleman  always  thinks  I  am  unhappy  when  I  interrupt  him. 

Mr  Withers:  Not  necessarily.  Between  Round  Hill  and  the  Washington  division, 
for  a  haul  of  20  miles,  30  cents.  Stations  between  the  Richmond  division,  from  here  ta 
Danville,  and  the  Danville  division,  from  Danville  to  Norfolk,  through  Danville,  for  20 
miles,  27  cents. 

Minimum  rate  in  North  Carolina  on  Southern  Eailvray,  24  cents,  for  a  20  mile  haul,^ 
and  maximum  rate  for  a  20  mile  haul,  26  cents. 

So  that  I  have  given  the  rates  on  the  branch  lines  in  Virginia  and  on  the  main  lines 
in  Virginia  so  far  as  the  line  from  here  to  Danville  and  from  Danville  to  Norfolk  consti- 
tutes a  main  line. 

I  am  giving  the  facts  as  they  were  given  to  me,  and  I  have  the  North  Carolina  rats 
schedule  here  on  my  desk.  I  give  that  to  show  that  the  Southern  Railway  in  Virginia 
has  different  rates  on  its  branches  and  different  rates  on  its  main  lines,  just  as  the  rates 
In  North  Carolina  are  allowed  to  vary  by  the  commission. 

Now  I  will  site  from  another  table.  Fertilizers  are  quite  an  important  item  of  traffic 
in  both  States. 

Five  miles  and  under  per  ton.  North  Carolina  60  cents,  Georgia  50  cents,  A.  &  D.  in 
Virginia  36  cents,  Virginia  Midland  36  cents.  That  is  the  main  line.  Chesapeake  and 
Ohio,  35  cents. 

I  am  informed,  and  reliably,  by  gentlemen  who  are  acquainted  with  those  facts,  that 
up  to  last  September  or  last  August,  the  rates  of  the  Southern  railway  on  the  A.  &  D.  on 
fertilizers  was  70  cents  for  a  five  mile  haul  on  the  Danville  Division,  and  60  cents  for  a 
five-mile  haul  on  the  Virginia  Midland  Division. 

I  have  the  rates  for  from  5  to  10  miles,  10  to  15,  15  to  20,  and  so  on  up.  Let  us  take 
a  50-mile  haul. 

One  dollar  and  forty  cents  in  North  Carolina  per  ton;  $1.05  in  Georgia  per  ton;  on  the 
A.  &  D.  division  of  the  Southern  Railway,  $1.78;  on  the  Virginia  Midland  line  (the  main 
line,  as  I  understand  it,  of  the  Southern  railway)  $1.78,  and  on  the  C.  &  0.  $1. 

I  could  go  on  indefinitely  with  the  figures  here  before  me,  but  I  do  not  consider  it 
wise  to  trespass  much  longer  upon  your  attention  with  figures  and  data.  Prior  to  Sep- 
tember or  August,  as  I  am  informed,  the  Southern  Railway  fertilizer  rates  had  been  $1.60 
and  $1.20  for  a  50-miie  haul  on  their  respective  divisions  as  cited  by  me. 

Mr.  Thom:  I  should  like  to  ask  my  friend  vrhat  his  statement  is  as  to  the  compari- 
son of  rates  on  the  Southern  Railway  in  Virginia  and  in  the  States  of  North  Carolina, 
South  Carolina  and  Georgia  on  the  main  line,  in  both  places.  I  just  want  to  know 
whether  you  claim  they  are  higher  in  Virginia  or  lower  in  Virginia? 

Mr.  Withers:  I  claim  that  in  some  instances  they  are  higher  in  Virginia  and  in  some 
instances  lower  in  Virginia;  and  that  is  nearly  every  instance  the  C.  &  0.  is  lower  than 
the  Southern,  either  in  Virginia  or  in  North  Carolina. 

Mr.  Thom:  Do  you  not  know"  it  is  a  fact  that  they  are  lower  in  Virginia  than  in 
those  States? 

Mr.  Withers:  I  understand  they  are  wherever  official  classification  applies,  but  not 
w^here  the  Southern  classification  applies. 


2308 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OE  VIRGINIA. 


Mr.  Thorn:  The  Southern  Railway  classification  applies  all  over  the  Southern  Rail- 
way system,  in  Virginia  and  outside  of  it. 

Mr.  Withers:  Mr.  Gulp  does  not  seem  to  think  so.  Mr.  Gulp  stated  that  at  Lynch- 
"bnrg  the  official  classification  applies  and  at  Danville  the  Southern  classification  applies. 

So  I  might  read  along  with  reference  to  cotton  seed,  with  reference  to  lumber,  with 
reference  to  iron  articles,  with  reference  to  meat  (salted) — carload  lots,  less  than  car- 
load lots,  per  100  pounds,  and  so  on  through  the  entire  list;  showing  that  almost  without 
exception  the  Ghesapeake  and  Ohio  railway,  by  reason  of  its  Baltimore  and  Philadelphia 
rates,  has  lower  prevailing  rates  than  the  Southern  railway  has  on  its  interstate  and 
intrastate  traffic,  both. 

Now,  Mr.  Ghairman,  the  question  of  classification  I  think  I  am  correct  about  the 
official  classification  applying  in  part  and  the  Southern  classification  applying  in  part. 
I  get  it  from  gentlemen  I  know,  and  from  Mr.  Gulp's  statement.  Here  is  an  article  pub- 
lished in  the  Richmond  Dispatch  of  August  10,  1900,  verified  by  a  memorandum  in  writ- 
ing, presented  to  me  this  morning,  which  I  will  not  read,  except  to  give  a  mere  dry  out- 
line of  facts.  Sometime  in  1900,  June,  I  think,  the  Southern  railway  issued  a  new  classi- 
fication. No.  27.  Their  classification  now  is  No.  30,  I  am  informed;  and  this  classification 
as  issued  contains  2,600  articles  of  merchandise  on  which  1,977  had  the  rates  raised. 

The  Chamber  of  Gom.merce  of  this  city — and  this  is  a  report  of  the  action  of  that 
body — loudly  complained,  and  when  they  attempted  to  have  those  increases  looked  into, 
they  were  told  that  v/hile  the  increase  had  been  made  by  the  classification  and  by  whole- 
'sale,  the  reduction  had  to  be  taken  up  article  by  article  and  subject  by  subject,  and 
reduced  by  retail,  as  was  the  case  with  canned  goods,  that  seriously  affected  the  canning 
industry  of  Virginia;  and  after  some  effort  and  endeavor  it  was  found  that  they  could 
be  reduced  and  they  were  reduced. 

So  that  the  increased  classification  had  this  effect,  as  I  am  informed,  upon  Virginia 
merchants,  that  when  the  stuff  got  here  from  Baltimore,  New  York  and  Philadelphia,  it 
had  to  be  distributed  under  the  increased  classification,  while  when  it  went  to  Georgia 
l)y  way  of  Savannah  and  to  North  Garolina  by  way  of  Wilmington,  it  was  distributed  to 
the  retailers  and  to  the  consumers  under  the  original  Southern  classification,  and  it  was 
tor  that  reason  that  the  merchants  of  Richmond  and  of  other  cities  complained  of  classi- 
fication No.  27.  Since  that  time — and  I  asked  the  question  for  the  purpose  of  being 
informed,  they  have  succeeded  in  obtaining  individual  retail  reductions  in  many  instances 
by  their  complaints. 

Now,  Mr.  Ghairman,  as  I  have  said,  and  as  I  am  informed  in  addition,  I  do  not  desire 
to  present  to  the  Committee  of  the  Whole  long  tables  which  I  have  in  my  possession  as 
to  the  intrastate  rates  in  Virginia,  because  I  have  too  long  trespassed  on  your  courtesy 
and  patience;  and  I  do  not  ask  that  they  be  made  a  part  of  my  remarks  for,  like  the 
gentlemen  from  Fauquier,  I  would  not  request  the  paper  that  publishes  the  official  report 
to  go  to  the  extra  expense,  and  I  understand  it  would  be  a  considerable  extra  expense,  to 
print  them;  but  at  any  time  if  any  one  wishes  to  inspect  them,  those  read  and  those  not 
read,  they  are  at  his  service.  If  there  should  be  errors  in  them,  it  is  the  error  of  the 
gentlemen  compiling  them,  unintentionally  made,  because  they  had  no  interest  in  doing 
othervv^ise  than  making  them  Correctly. 

I  have  not  entered  any  further,  for  another  reason,  into  intrastate  rates,  because  I 
did  not  want  to  trespass  upon  the  time  of  the  committee  by  touching  upon  the  very  things 
tliat  my  friend  from  Halifax  (Mr.  Stebbins)  has  shown  so  completely  to  your  satisfaction. 

But  I  do  stand  upon  the  record  made  by  him  as  to  intrastate  rates,  and  made  by  the 
railroads,  as  to  interstate  rates,  and  I  submit  the  question  with  confidence  to  your  decision. 

It  will  not  do  to  say  that  we  cannot  control  interstate  rates.  The  movement  to  con- 
trol them  is  becoming  so  tremendous  that  the  Senator  from  West  Virginia  has  introduced 
■a  bill,  some  say  for  the  purpose  of  anticipating  a  more  stringent  bill,  to  strengthen  the 
arms  of  tlie  Interstate  Commerce  Commission.  The  demand  of  such  control  is  for  the 
purpose  of  preserving  the  public  from  the  rapacity,  not  of  citizens  acting  in  their 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXEl. 


2309 


individual  capacities,  but  of  citizens  v^lio  are  acting  through  a  corporate  unity,  and  from 
-^■hom  is  largely  removed  the  responsibility  for  any  acts  of  injustice  that  may  be  com- 
mitted in  the  name  of  the  corporation.  I  have  selected  and  dwelt  upon  the  rates  of  the 
Southern  railway  solely  because  that  railway  affects  my  community.  I  have  not  taken 
the  Norfolk  and  Western  railroad,  because  I  leave  that  to  gentlemen  who  are  upon  its 
line  to  testify  to  its  inequalities  and  injustice.  I  have  not  trenched  upon  what  occurs  in 
the  Valley,  because  there  are  upon  thip  floor  sufficient  gentlemen  who  can  testify  as  to- 
how  the  grain  and  hay  of  the  Valley  is  discriminated  against.  I  have  not  trenched  upon 
any  other  community  than  my  own  because  I  desire  to  get  at  the  truth  and  the  facts,  and 
I  had  them  in  my  possession,  admitted,  proven,  sworn  to,  so  that  they  cannot  be  con- 
troverted. 

I  am  not  here,  Mr.  Chairman,  asking  for- avenge  upon  corporations.  I  vrill  say,  in 
jtistice  to  the  very  railroad  whose  record  of  injustice  has  been  submitted  to  you,  that  I 
believe  it  is  giving  the  best  passenger  service  in  all  the  south;  that  in  many  respects  it 
surpasses  all  competitors;  but  that  wherein  it  seeks  to  wring  from  the  citizens  of  anw 
community  of  Virginia  more  than  a  just  return  for  its  public  service,  there  I  claim  we- 
should  say,  *'  Thou  shalt  stop." 

I  believe,  Mr.  Chairman,  in  corporations,  in  development,  in  progress,  in  improve- 
ment, in  even  civilization.  I  believe  the  civilization  of  a  community"  is  helped  by  the 
common  carriers  of  that  comniunit:.-.  I  believe  that  any  of  the  modern  improA'ements,. 
such  as  the  telephone,  telegraph,  express  companies,  anything  that  aides  the  transmission 
of  products  from  point  to  point,  anything  that  annihilates  distance  and  moves  it  as  a 
factor  in  the  calculation  of  profits  in  the  estimate  of  what  our  country  and  its  communi- 
ties are  capable  of — 

^Ir.  Thorn:  In  connection  with  what  you  said  about  the  passenger  and  other  service 
of  the  Southern  railway,  leaving  out  this  Danville  matter  to  which  you  have  alluded, 
except  in  that,  have  you  any  other  complaint  against  the  Southern  Railway? 

Mr.  Withers:  Oh,  yes;  a  great  many.  It  is  not  a  local  Danville  complaint  at  alL 
T\Tiy,  my  dear  sir,  the  Danville  merchants,  since  you  have  mentioned  it,  complain  of  their 
being  precluded  from  selling  to  the  county  seat,  seventeen  miles  away,  so  they  tell  me, 
because  of  a  rate  that  allows  other  communities  to  sell  there  at  much  greater  distances! 
and  they  cannot  even  go. 

I  do  not  come  in  here  with  frivolous  complaints.  I  would  consider  it  beneath  the 
dignity  of  the  Convention  and  beneath  my  own  self-respect  to  urge  frivolous  or  isolated 
instances  of  complaint.  I  submit  it  is  a  just  complaint  when  there  are  communities  in 
Virginia— and  they  lie  all  around  Danville  and  about  Danville— from  whom  a  tribute  is 
exacted  greater  than  the  taxes  they  pay  into  the  State  treasury  from  the  four  great  sources 
of  taxation. 

As  I  said,  Mr.  Chairman,  I  believe  in  development,  I  believe  in  progress  I  believe 
in  eaucation,  I  believe  in  'encouraging  all  that  tends  to  upbuild  a  communitv  and 
upbuild  its  citizens;  but  I  believe  that  everything  that  does  a  public  service,  transmits 
a  message  and  annihilates  distance,  that  transmits  another  message  and  annihilates 
time  IS  of  the  greatest  benefit  that  can  possibly  be  conferred  upon  the  industrial  and 
merchantUe  classes  of  our  country;  but  I  believe  those  creatures  of  the  law  who  are 
thus  created  and  permitted  to  live  by  virtue  of  charters,  privileges  and  franchises 
should  be  made  to  observe  the  rights  of  the  public  and,  if  you  please,  the  rights  of  the 
people. 

I  do  not  believe  we  are  any  more  in  the  position  of  doing  an  injustice  to  the  cor- 
porations than  England  was  when,  by  the  statutes  of  Mort  Main  she  stopped  the  grasp- 
ing of  lands  by  the  clergy.  They  had  a  much  more  potent  and  powerful  weapon  to  offer 
in  the  defense  of  their  rights,  for  they  said:  ''We  grasp  these  lands  and  hold  them  for 
the  sake  of  holy  religion  and  the  saving  of  souls  and  the  eternal  welfare  of  man." 

The  only  reply  the  corporation  can  make  is.  We  do  these  things  in  order  to 
develop  commerce,,  to  promote  the  growth  of  communities,  and  to  swell  the  income  of 


2310 


DEBATES  OF  THE  COi^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


our  own  pockets."  But  that  which  the  law  creates,  that  the  law  should  also  control; 
and  I  say  that  it  is  not  beneath  the  dignity  of  this  Convention  to  put  upon  the  common 
carriers  of  Virginia  such  restrictions  as  will  enable  them  to  earn  a  fair  profit  from  their 
investments,  and  will  keep  them  from  exacting  tribute  from  its  citizens  and  its  business 
and  its  industry. 

I  have  had  some  little  connection  with  some  sorts  of  corporations,  and  the  con- 
nection is  nothing  more  nor  less  than  a  client  in  your  office,  than  a  business  invest- 
ment, than  a  business  enterprise  from  which  you  hope  to  earn  income,  and  dividends 
and  profits.  The  very  fact  that  modern  invention  has  practically  annihilated  distance 
and  time,  has  necessarily  required  the  undertaking  of  great  enterprises  by  corporations, 
because  individuals  could  not  assume  the  enormous  liabilities  necessary.  But  those  are 
the  creatures  of  the  law.  It  is  not  populistic,  it  is  not  the  act  of  an  agrarian,  nor  a 
proletariat,  nor  anybody  else,  except  a  good  citizen,  to  demand  of  his  country's  repre- 
sentatives that  they  shall  give  him  a  government  that  will  insure  his  rights  of  property 
as  well  as  his  rights  of  life  and  liberty;  and  it  is  a  fundamental  principle  just  as  much 
in  one  case  as  in  the  other. 

No  gentleman  can  take  me  off  my.. feet  by  talking  about  stopping  commerce.  It 
is  urged  every  time  anything  is  sought  to  be  done  which  seeks  to  control  those  who  are 
public  service  carriers.  No  gentleman  can  take  me  off  my  feet  by  saying  we  are 
barring  progress,  I  say  that  a  wise  regulation  and  control  of  public  service  corpora- 
tions is  the  greatest  help  to  progress.  It  removes  friction;  it  removes  dissatisfaction; 
it  removes  antagonism  and  hostile  legislation;  it  keeps  them  at  least  to  some  extent 
out  of  politics,  and  it  removes  from  the  community  a  constant  source  of  irritation,  con- 
test and  controversy,  between  the  public  on  the  one  hand  and  these  public  service  cor- 
porations on  the  other. 

It  is  a  wise  regulation.  It  has  been  and  is  being  approved  by  many  of  the  wisest 
students  of  economics  in  this  country. 

It  is  going  to  grow;  and  gentlemen  may  as  well  recognize  that  it  represents  the 
unexpressed,  in  many  instances,  protests  of  the  people  against  a  wrong  that  they  do 
not  understand  or  cannot  locate,  but  do  feel.  The  trouble  about  too  long  resisting  a 
popular  demand  for  a  reasonable  control  of  such  corporations  is  that  the  irritation 
finally  gets  to  that  point  that  it  becomes  a  blind  push  of  men,  squeezed  past  endurance, 
and  is  a  fight  in  the  dark  alike  against  friend  and  foe. 

Gentlemen  cannot  whistle,  this  down  the  wind.  The  State  is  behind  this  move- 
ment. The  people  of  the  State  are  behind  it.  The  press  of  the  State  is  practically 
behind  it.  The  business  associations  of  the  State  are  behind  it.  It  is  a  movement  that 
will  strengthen  the  Constitution.  It  is  a  movement  that  will  withstand  the  brains  and 
intelligence  of  the  corporations.  It  is  a  movement  that  will  make  votes  for  this 
.measure;  and  it  is  a  movement  that  has  in  it,  above  all,  that  which  is  just  and  equitable 
and  right. 

I  believe,  as  I  said,  in  development,  in  progress,  in  the  very  best  application  of 
scientific  endeavor  to  practical  details,  so  that  in  the  largest  possible  way  the  resources 
•of  the  South,  the  wealth  of  the  South,  may  be  exploited  and  brought  forth  so  that  we 
may  be  a  thriving  and  prosperous  people.  I  believe  in  civilization  if  it  is  based  upon 
those  principles  of  industrial  development,  and  I  believe  in  a  civilization  that  will  at 
the  same  time  demand  a  proper  accounting  to  the  public  for  the  acts  of  these  corpora- 
tions of  a  public  carrier's  nature. 

I  believe  Mr.  Chairman,  in  that  sort  of  civilization  that  carries  along  with  it  the 
various  classes  of  our  society  and  does  not  create  submerged  tenths,  and  putting  under 
the  feet  of  the  few  with  all  the  good  things  of  life,  the  many  with  practically  nothing. 
You  may  say  that  is  a  demagogue's  appeal,  but  I  submit  it  is  a  righteous  appeal,  because 
I  believe  in  a  civilization  that  seeks  in  the  highest  possible  way  to  hold  out  hope  to  him 
who  is  less  fortunately  placed  in  the  plane  of  life,  and  that  holds  out  hope  in  this  in- 
stance not  merely  to  those  who  control  and  own,  but  those  who  are  employed  and 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2311 

who  work.  I  believe,  sir,  in  a  civilization  that  holds  out  hope  to  the  switchman  as  well 
as  to  the  president  of  the  railroad,  and  I  believe  in  a  civilization  that  holds  out  hope  to 
the  man  with  his  hand  upon  the  throttle  as  well  as  to  the  man  who  rides  in  a  private 
car,    (Great  applause.) 

Mr.  Hunton:  Mr.  Chairman,  just  one  moment  with  reference  to  the  rates  that 
were  put  before  the  Convention  by  my  friend  from  Halifax  (Mr.  Stebbins).  I  would 
■say  one  word,  first,  in  reference  to  the  table  produced  by  myself  as  to  the  commodity 
Tates. 

I  maintained  that  the  comparison  was  made  between  Virginia  and  the  other  South- 
■em  States  in  carload  lots.  That  was  correct.  I  was  in  error  in  believing  that  there 
were  higher  rates  both  for  the  Chesapeake  and  Ohio  and  the  Southern  railway  in  the 
Southern  States  upon  most  articles  where  they  were  in  less  than  carload  lots.  I  desire 
to  make  that  statement  of  error  upon  my  part. 

There  is  a  further  matter  in  the  rates  given  by  my  friend  from  Halifax — not  that 
the  rates  given  by  him  were  incorrect,  but  that  the  basis  of  comparison  was  mislead- 
ing. The  basis  of  comparison  taken  by  him  of  the  Southern  railway  was  upon  two 
branch  lines  of  the  Southern  railway  in  Virginia,  the  one  leading  from  West  Point  to 
Danville,  the  other  from  Norfolk  to  Danville.  Now,  in  my  opinion,  that  was  not  a  fair 
basis  for  comparison,  for  the  reason  that  in  the  Southern  States  which  have  commis- 
sions, the  commissions  themselves  permit,  upon  branch  lines,  or  short  lines,  an  in- 
crease of  from  10  to  25  percent,  and  in  isolated  cases  of  50  per  cent.,  increased  charges 
over  the  regular  rates  upon  the  main  lines.  The  reasons  for  that  are  perfectly  clear. 
It  is  because  the  branch  lines  generally  pass  through  sections  that  are  less  densely 
populated,  and  that  furnish  less  product  to  be  hauled  over  the  road,  and  I  maintain  it 
is  unfair  to  compare  any  branch  or  short  roads  with  main  line  rates,  and  that  the  only 
way  to  reach  a  fair  comparison  is  by  comparing  main  line  rates  with  main  line  rates. 

Again  Mr.  Chairman  and  gentlemen  of  the  committee,  it  has  been  maintained  that 
the  Chesapeake  and  Ohio  has  been  selected  because  it  presented  the  cheapest  tariff  of 
rates  in  Virginia.  My  information  is  that  that  charge  is  absolutely  unfounded,  and 
that  the  charg-es  of  the  Southern  railway  upon  its  main  line  in  Virginia  are  as  cheap, 
and  in  instances  cheaper,  tlian  those  upon  the  Chesapeake  and  Ohio  railway. 

In  addition  to  that,  I  desire  to  afRrm  that  there  was  also  an  error  in  the  table 
presented  by  myself  of  the  Chesapeake  and  Ohio  Railway  company  as  to  the  rates  on 
lumber,  in  some  of  the  Southern  States,  which  will  be  referred  to  more  in  detail  in  a 
moment;  but  I  desire  also  to  affirm  that  the  result  of  those  tables  is  practically  accu- 
rate, and  that  the  charges  on  the  Southern  and  the  Chesapeake  and  Ohio  in  Virginia 
are  less  than  in  the  States  of  Georgia,  South  Carolina  and  North  Carolina. 

I  will  read  a  letter  from  Mr.  E.  D.  Hotchkiss,  general  freight  agent  of  the  Chesa- 
peake and  Ohio  Railway  company: 

February  10,  1902. 

Hon.  Eppa  Hunton,  Richmond,  Ya.: 

Dear  Sir, — In  response  to  your  inquiry  for  additional  information  with  reference 
to  comparative  table  of  class  and  commodity  rates  as  between  Virginia  and  North 
Carolina,  South  Carolina  and  Georgia,  which  figures  have  been  attacked,  in  so  far  as 
the  Virginia  rates  are  concerned,  and  claimed  to  be  inaccurate,  unfair  and  misleading, 
I  desire  to  present  some  facts  in  connection  with  the  figures  to  demonstrate  that,  not- 
withstanding some  trifling  inaccuracies  in  the  figures,  they  are  substantially  correct, 
and  bear  out  the  statement  that,  by  comparison,  the  rates  in  Virginia  are  lower  than  in 
the  three  Southern  States  referred  to,  having  railroad  commissioners  with  the  power  to 
make  rates. 

(1)  .  The  comparison  is  made  in  each  State  with  the  current  rates  applicable  on 
main  lines,  which  is  certainly  a  fair  basis  for  comparison. 

(2)  .  Not  being  familiar  with  the  lumber  classification  and  rates  in  the  South,  I 
Inadvertently  applied  the  rate  per  carload  of  20,000  pounds  in  the  States  of  North 
Carolina  and  Georgia,  whereas  I  have  since  been  informed  that  the  rate  is  per  carload 
of  24,000  pounds.  This  unintentional  error  makes  the  rates  on  lumber  shown  in  the 
table,  insofar  as  North  Carolina  and  Georgia  are  concerned,  higher,  by  a  small  fraction. 


2312 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


than  they  are.  For  the  purpose  of  comparison,  corrected  figures  are  shown  in  table  of 
rates  enclosed  with  this  letter,  which  will  be  referred  to  later  on. 

(3).  Insofar  as  the  class  rates  and  the  commodity  rates  other  than  above  men- 
tioned are  concerned,  they  have  been  compared  and  are  in  accordance  with  the  current 
rates  in  effect  at  the  present  time. 

With  respect  to  class  rates:  As  a  general  proposition,  a  very  large  portion  of  traffic 
moves  under  the  first,  second  and  third  classes,  when  in  less  than  carload  quantities, 
and  would  therefore  be  subject  to  practically  the  same  classification;  that  is,  the  classi- 
fications upon  which  the  less  than  carload  shipments  are  handled  under  the  three  classes 
named  do  not  vary  to  any  extent.  It  is,  therefore,  evident  that  the  business  moving 
under  commodity  rates,  to  which  first,  second  and  third  class  rates  apply,  covers  a  large 
portion  of  railroad  traffic  in  which  the  small  shipper  and  general  public  are  interested. 

I  notice  that  very  great  stress  is  laid  on  the  fact  that  different  classifications  govern 
the  rates  in  Virginia,  as  compared  with  those  in  North  and  South  Carolina  and  Georgia, 
and  that  the  classification  applicable  to  the  rates  in  the  States  south  of  Virginia  is  a 
very  much  lower  classification;  and  that,  in  preparing  the  table  of  figures,  no  mention 
was  made  of  this  fact;  and  that,  by  reason  of  the  lower  classification  applicable  to  the 
Southern  States  as  indicated,  which  classification  it  is  contended  applies  the  rates  to  all 
classes  of  freight  in  any  quantity,  the  rates  in  the  Southern  States  are  very  much  lower 
by  comparison.  It  is  true  that  the  Southern  classification  is  somev/hat  lower  than  the 
official  classification,  the  latter  being  applicable  to  our  line  in  Virginia,  which  rates 
are  shown  in  the  table,  but,  that  this  difference  in  the  classification  makes  the  rates 
in  the  States  south  of  Virginia  lower  than  those  in  Virginia,  can  be  successfully  com- 
batted,  as  is  evidenced  by  the  enclosed  tabulated  figures,  which  cover  the  principal 
necessaries  as  transported  over  the  various  transportation  lines  in  the  several  States. 

Further,  in  regard  to  the  statement  m^de  that  the  most  favorable  rates  in  Virginia 
have  been  used  in  this  comparison:  The  attached  table  of  rates,  which  is  a  comparison 
of  the  current  rates  in  effect  in  Virginia  for  10,  50,  100  and  140  miles,  are  between 
Chesapeake  and  Ohio  main  line  points  and  Southern  railway  main  line  between  Rich- 
mond and  Danville,  and  this  statement  disproves  the  charge  that  the  most  favorable 
rates  have  been  used  in  the  comparison.  The  class  rates  in  this  table  for  the  first  three 
classes  are  practically  the  same.  Inasmuch  as  the  lower  classes  apply  to  the  com- 
modities, so  far  as  the  Chesapeake  and  Ohio  is  concerned,  the  regular  lettered  classes 
apply  to  the  Southern  Railway,  which  make  the  Southern  Railway  rates  more  favorable 
than  those  of  the  Chesapeake  and  Ohio.  These  are  facts  which  can  be  eytablished  by 
comparison  of  the  tariffs  themselves,  which  are  subject  to  inspection.  This  table  is 
marked,  for  convenience,  "  Exhibit  A." 

Referring  to  the  statement  made  that,  by  reason  of  the  Chesapeake  and  Ohio  Rail- 
way rates  furnished  being  carload  rates,  the  information  was  not  correct,  and  therefore 
misleading:  While  the  rates  in  the  Southern  States  are  uniformly  in  any  quantity, 
both  as  to  classes  and  commodities,  the  facts  with  reference  to  the  rates  are  shown  in 
the  accompanying  table,  for  convenience  marked  "  Exhibit  B."  The  Virginia  rates  are 
those  of  the  Chesapeake  and  Ohio  Railway  company  and  those  of  the  Southern  railway 
between  Richmond  and  Danville.  Attention  is  called  to  the  fact,  that  with  the  exception 
of  flour,  hay  lumber  and  fertilizer,  the  Virginia  rates  are  on  both  carload  and  less 
than  carload  Quantities,  lower  than  in  any  of  the  Southern  States.  These  exceptions 
apply  principally  to  the  rates  in  Georgia,  which,  on  the  four  commodities  named,  are 
lower  than  in  any  of  the  other  States.  Further  attention  is  called  to  the  fact  that  this 
table  disproves  the  statement  made  that  the  rates  in  the  Southern  States  apply  uni- 
formly, both  as  to  class  and  commodity  rates,  on  traffic  in  any  quantity.  The  figures 
covered  by  this  table  are  correct,  and  the  tariffs  are  current  and  can  be  referred  to 
at  any  time. 

Reverting  to  the  charge  that  the  most  favorable  rates  in  Virginia  have  been  used 
for  this  comparison,  I  desire  to  impress  the  fact  that  main  line  rates  are  the  only  fair 
basis  of  rates  for  comparison,  and  to  emphasize,  further,  that  the  railroad  commissioners 
in  the  States  of  North  Carolina  and  Georgia  authorize  higher  rates  upon  branch  lines, 
and  in  some  instances  upon  main  lines,  than  the  standard  tariffs,  such  increased  rates 
being  10,  25,  and,  in  isolated  cases,  50  per  cent,  higher  than  standard  rates,  according  to 
conditions  existing  as  to  grades,  light  traffic  and  other  general  conditions  which  increase 
the  cost  of  operating  as  compared  with  the  amount  of  traffic  to  be  handled.  Hence, 
comparison  of  branch  line  rates  in  Virginia  with  main  line  rates  in  the  Southern  States 
would  be  an  unfair  basis.  The  figures  used  are  from  current  tariffs  of  the  several  roads 
in  the  Southern  States,  and  are  subject  to  examination  at  any  time. 

In  the  Sunday  morning  paper  I  read  statement  with  regard  to  the  cost  of  coal  at 
Richmond,  and  a  charge  that  the  "  dealers  of  Richmond  are  paying  to-day  an  advance 
of  78  cents  on  Chesapeake  and  Ohio  coal."  The  Chesapeake  and  Ohio  Railway  company 
do  not  deal  in  coal,  and  if  the  dealers  of  Richmond,  or  any  other  points  in  Virginia  on 
the  Chesapeake  and  Ohio  Railway,  are  paying  more  for  coal  than  formerly,  it  is  in  the 


DEBATES  OE  THE  C0X5TITUTI0XAE  COXYEXTIOX  OE  VIRGINIA. 


2313 


price  of  the  coal  at  ttie  mines,  and  not  in  transportaiion  rates,  as  tlie  following  facts  will 
demonstrate.  On  September  24,  1895,  the  rates  on  coal  to  Richmond,  Va.,  were  as  fol- 
lows: 

From  the  Xew  River  district,  steam  coal.  $2  per  2.240  pounds,  equal  to  31.78  per 
2,000  pounds;  domestic  coal,  §2  per  2,240  pounds,  equal  to  SI. 78  per  2,000  pounds.  From 
the  Kanawha  district,  on  splint  coal  for  steam  and  domestic  purposes,  S2.50  per  2,240 
pounds,  equal  to  S2.23  per  2,  000  pounds.  On  January  2,  1S97,  the  steam  coal  rate  from 
the  New  River  district  was  advanced  to  §2.25  per  2,240  pounds,  equal  to  ?2,01  per  2,000 
pounds.  On  March  4,  1897,  tne  steam  or  domestic  coal  rate  from  the  Kanawha  district 
was  reduced  to  $2.25  per  2,240  pounds,  equal  to  $2.01  per  2,000  pounds.  These  rates 
remained  in  efiect,  with  trifling  variations,  until  April  2,  1900,  when  they  were  estab- 
lished as  follows.  From  Xew  River  district,  steam  coal,  SI. 50  per  2,000  pounds;  domestic 
coal,  SI. 60  per  2,000  pounds.  On  September  1,  1901,  from  the  New  River  district,  steam 
coal,  §1.50  per  2,000  pounds;  domestic  coal,  S1.70  per  2,000  pounds.  On  April  2,  1900, 
from  the  Kanawha  district,  steam  coal,  SI. 60  per  2,000  pounds;  domestic  coal,  $1.85  per 
2,000  pounds;  gas  coal,  $1.75  per  2,240  pounds.  The  last  rates  from  both  the  New  River 
and  Kanawha  districts  are  the  present  rates  and  it  will  be  clearly  seen  that  they  are  a 
material  reduction  from  the  rates  previously  in  effect. 

It  is  noticed  that  the  charge  is  made  that  the  statement  to  the  effect  that  the  rates 
in  Virginia  have  been  materially  reduced  since  1891  is  incorrect,  and  that,  as  a  matter 
of  fact,  no  reductions  in  rates  were  made  until  the  session  of  the  Convention  began. 
As  a  matter  of  fact,  the  tendency  of  rates  in  Virginia  has  been  towards  reductions  dur- 
ing the  last  fifteen  years.  During  that  period  the  writer  has  been  personally  directly 
connected  with  the  establishment  of  rates  on  the  Chesapeake  and  Ohio  railway,  and  the 
facts  that  these  reductions  have  been  continuous  can  be  clearly  demonstrated.  It  is 
true  that  a  more  general  reduction  v/as  made  by  the  Chesapeake  and  Ohio  railway  dur- 
ing the  year  1901,  but  this  reduction  had  been  under  consideration  for  a  year  and  a  half, 
or  more  correctly  speaking,  since  the  1st  of  March,  1900.  I  desire  to  say  in  this  con- 
nection, most  emphatically,  that  the  session  of  the  Convention  had  no  bearing  whatever 
upon  the  action  of  the  Chesapeake  and  Ohio  with  reference  to  these  rates.  Suppose, 
however,  we  disregard  the  rates  of  the  Chesapeake  and  Ohio  Railway,  the  rates  of  the 
Norfolk  and  Western,  the  Southern  railway,  the  Baltimore  and  Ohio,  in  Virginia,  on 
main  lines,  are  practically  the  same  as  the  Chesapeake  and  Ohio  rates  to-day,  and  their 
rates  have  not  been  reduced  generally-  in  the  last  two  or  three  years.  These  are  the 
facts,  that  can  be  demonstrated  beyond  dispute:  so  that  the  charge  that  the  general 
reduction  referred  to  had  been  a  very  recent  one,  in  fact,  since  the  session  of  the  Con- 
vention began,  is  not  correct. 

Yours  very  truly, 

E.  D.  HoTCHKiss.  G.  F.  A. 

(Dictated  ly  E.  B.  H.) 

I  will  not  read  "Exhibit  A."  which  is  merelj-  a  comparison  of  the  classification  be- 
tween the  Southern  and  the  Chesapeake  and  Ohio  railway,  but  here  is  a  comparison 
between  the  States  of  North  Carolina,  South  Carolina  and  Georgia,  on  the  one  side,' 
and  the  Southern  and  the  Chesapeake  and  Ohio  on  the  other,  and  it  vrill  demonstrate 
that  the  rates  on  the  Southern  are  about  the  same  as  those  on  the  Chesapeake  and 
Ohio,  and  that  the  rates  on  the  first,  second  and  third  class  compare  with  those  of 
similar  classes  in  Georgia,  South  Carolina  and  North  Carolina,  as  was  shown  in  the 
original  table,  showing  them  to  be  cheaper  in  the  State  of  Virginia  than  they  were 
in  those  three  States. 

This  is  also  true,  with  the  exception  of.  I  believe,  bacon,  in  Georgia — one  article 
referred  to  in  the  letter  I  have  just  read.  I  am  not  sure  which  it  was.  I  have  a  table 
here  giving  the  charges  on  bacon,  grain,  flour,  hay.  fertilizer,  lumber,  dry  goods,  cotton 
fabrics,  boots  and  shoes,  sugar,  molasses  and  coffee,  and  I  believe  every  one  of  them  is 
given  either  in  carload  lots  or  less  than  carload  lots,  and  they  will  show  that  the 
average  charges  in  Virginia  on  the  Chesapeake  and  Ohio  and  the  Southern  railway  are 
less  than  in  the  three  States  of  Georgia,  South  Carolina  and  North  Carolina,  with 
their  commissions. 

I  will  not  weary  the  committee  by  going  into  the  details  of  the  figures  on  those 
various  articles,  but  this  table  is  at  the  disposition  of  members,  shotild  they  desire  it. 
It  merely  confirms  the  statement  that  has  been  made  and  which  I  believe  at  least  one 
of  the  experts  who  have  been  figuring  and  suppljing  the  information  to  the  gentlemen 
on  the  other  side  will  not  deny,  that  the  original  table  furnished  by  the  Chesapeake  and 
146 — Const.  Deb. 


2314  DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION"  OF  VIRGINIA. 

Ohio  railway,  by  which  the  standard  rates  in  Virginia  were  compared  with  the  rates 
in  Georgia,  South  Carolina  and  North  Carolina,  while  there  may  be  exceptions  that  do 
not  fall  within  that  table,  is  a  fair  general  comparison  of  those  rates,  and  will  demon- 
strate the  proposition  that  it  started  out  to  prove,  that  the  rates  in  Virginia  were 
materially  lower  upon  most  commodities  than  in  those  three  Southern  States. 

The  gentleman  from  Halifax  also  referred  to  the  rate  on  cattle  from  certain  points 
in  Southwest  Virginia  to  Newport  News.  Referring  to  the  rates  on  export  cattle  from 
Chicago  to  Newport  News  and  Norfolk,  I  desire  to  state  that  the  rates  are  the  same 
via  both  lines  and  that  they  are  neither  $50  per  car  from  Chicago  to  Newport  News 
and  Norfolk,  nor  are  they  $54  per  car.  The  rates  on  cattle  from  Chicago  to  Newport 
News  and  Norfolk  are  25  cents  per  hundred  pounds  in  carload  quantities  and  ship- 
ments are  billed  at  25,000  pounds  per  car,  and  are  weighed  at  the  seaboard,  and  freight 
collected  at  actual  weight,  subject  to  a  minimum  weight  of  20,000  pounds.  These  ship- 
ments will  always  weigh  in  excess  of  20,000  pounds,  averaging  from  21,000  to  25,000 
pounds  per  car. 

It  was  further  stated  by  the  gentleman  from  Halifax  that  when  these  cattle  are 
for  export,  when  originating  in  Southwest  Virginia,  inasmuch  as  the  steamers  do  not 
land  at  Norfolk,  the  cattle  have  to  be  delivered  to  the  Chesapeake  and  Ohio  Railway 
company  at  Lynchburg,  and  thereby  are  subject  to  the  local  rates  of  both  roads.  That 
is  not  the  fact  in  reference  to  this  matter.  There  have  been  no  shipments  moved  from 
Southwest  Virginia  via  Lynchburg  and  the  Chesapeake  and  Ohio  Railway  company  in 
a  long  time.  Ships  do  sail  direct  from  Norfolk  and  from  the  terminals  of  the  Norfolk 
and  Western  Railroad  company,  and  shipments  either  from  Chicago  or  Southwest  Vir- 
ginia or  any  other  points  on  or  reached  by  the  Norfolk  and  Western  railroad  can  be 
transported  to  Norfolk  and  unloaded  on  board  ships  for  foreign  shipment. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  president  resumed  the  chair. 

On  motion,  the  Convention  adjourned  until  to-morrow,  Tuesday,  February  11,  1902, 
at  10  o'clock  A.  M. 


TUESDAY,  February  11,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  T.  Derieux,  D.  D. 

CLOSING  DEBATE. 

Mr.  Barbour:  I  offer  the  following  resolution,  and  ask  its  immediate  considera- 
tion: 

Resolved,  That,  beginning  at  10  o'clock  to-morrow,  the  Committee  of  the  Whole 
shall  commence  the  consideration  of  the  report  of  the  Committee  on  Corporations  by 
sections  and  sub-sections,  and  so  continue  from  day  to  day  until  the  same  is  completed. 

The  President:  The  question  is  on  the  adoption  of  the  resolution  offered  by  the 
gentleman  from  Culpepper  (Mr.  Barbour). 

The  resolution  was  agreed  to. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Eggleston  in  the  chair. 

The  Chairman:  The  business  before  the  Committee  of  the  Whole  is  the  report 
of  the  Committee  on  Corporations,  and  the  gentleman  from  Winchester  (Mr.  Harri- 
son) is  entitled  to  the  floor. 

Mr.  Harrison:  Mr.  Chairman,  if  the  gentlemen  of  this  committee  would  be  as 
brief  in  discussing  this  question  as  I  intend  to  be  and  shall  be,  there  would  be  no 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  2315 

complaint  of  any  extra  time  having  been  consumed  in  this  matter.  I  would  not 
trespass  now  upon  the  patience  of  this  committee,  except  that  I  desire,  in  justice  to 
myself  and  in  justice  to  the  constituents  I  have  the  honor  to  represent  on  thia  floor, 
to  state  briefly  my  reasons  for  opposing  the  majority  report  of  this  committee. 

I  do  not  regard  it,  Mr.  Chairman,  as  any  attempt,  in  fact,  so  much  to  regulate 
the  railroads  of  this  State,  as  it  is  an  assault  upon  the  General  Assembly  of  the  State, 
its  past  history  and  in  its  future  usefulness.  It  is  not  so  much  a  question  as  to 
whether  we  shall  legislate  in  regard  to  the  railroads  of  this  State  as  it  is  whether 
the  General  Assembly  of  the  State,  the  representative  body  of  the  free  people  of  this 
Commonwealth  are  capable  of  attending  to  the  duties  which  have  heretofore  been 
assigned  to  them,  and  which  in  any  free  State  ought  to  be  assigned  to  them.  It 
is  admitted  that  this  is  legislation  pure  and  simple,  and  the  only  justification  which 
has  been  offered  for  thrusting  it  upon  this  Constitution  has  been  that  in  the  past  the 
Legislature  has  failed  to  perform  its  duties  and  has  been  in  default.  I  think  it  will 
be  a  sad  day  in  this  Com-monwealth  when  it  will  have  to  be  admitted  that  the  people 
of  this  State  are  incapable  of  electing  as  their  representatives  to  their  General  Assem- 
bly men  who  are  fit  and  capable  to  carry  out  the  will  of  their  constituents.  Now  the 
whole  question  that  has  been  discussed  here  from  its  inception  to  the  last  argument 
upon  the  floor  has  been  an  arraignment  of  the  General  Assembly  of  this  State  for  fail- 
ing to  perform  the  duties  imposed  by  the  people  upon  them.  I  look  back  over  the 
history  of  this  State,  Mr.  Chairman,  and  it  seems  to  me  that  the  people  of  this  Com- 
monwealth have  a  right  to  be  proud  of  the  history  which  its  Legislatures  have  written. 
The  Commonwealth  came  out  of  the  war  desolated  by  fire  and  sword,  with  an  incubus 
in  the  shape  of  a  debt  hanging  over  it,  with  an  electorate  consisting  of  a  mass  of 
ignorant  voters,  yet  through  all  the  troublous  times  that  followed  in  the  wake  of  the 
war  v/e  find  that  this  Commonwealth  has  been  guided  safely  and  successfully,  until 
to-day  it  is  one  of  the  most  prosperous  Commonwealths  in  the  Union. 

Again,  sir,  I  regard  that  we  are  here  under  limited  powers.  We  are  not  here 
to  undertake  any  and  all  matters  of  legislation;  we  are  sent  here  for  a  specific  pur- 
pose. Other  agencies  of  the  State  are  charged  with  such  duties,  and  I  claim  that 
when  we  step  beyond  the  power  that  has  been  entru^ed  to  us  we  are  usurping  func- 
tions which  we  were  never  electod  to  perform,  and  trespassing  upon  the  rights  of 
other  agencies  which  the  people  have  selected  to  perform  such  duties.  In  this  hall  in 
a  short  time  will  assemble  the  representatives  of  the  people  who  have  been  especially 
selected  and  solely  selected  with  the  view  of  performing  legislative  duties.  We  were 
selected  under  the  limited  authority  to  propose  fundamental  law  to  this  State,  Now, 
sir,  not  only  is  this  a  matter  of  legislation,  an  indirect  contravention  of  the  authority 
that  has  been  assigned  to  us,  but  it  is  in  the  very  teeth  of  a  fundamental  principle,  in 
that  it  establishes  a  body  in  the  State,  charged  with  legislative  and  judicial  functions 
in  regard  to  important  interests  of  this-  State,  establishes  this  body  beyond  the  rep- 
resentatives of  the  people  and  out  of  touch  with  the  people.  Here  is  a  board  appointed 
by  the  Governor  of  the  State,  above  the  Legislature  of  the  State,  charged  with  duties 
of  legislating  in  regard  to  important  matters  in  the  State,  charged  with  important 
judicial  functions  of  the  State.  They  are  appointed  by  the  Governor,  and  they  are 
not  amenable  to  the  General  Assembly  of  the  State. 

Now,  sir,  what  justification  for  this  violation  of  our  principle  have  we?  Why, 
the  gentleman  from  Danville  (Mr.  Withers)  has  detailed  a  tale  of  woe  from  Danville. 
It  seems,  sir,  that  down  in  Danville  the  railroads  have  not  treated  the  people  of  that 
city  with  proper  regard,  and  that  an  appeal  to  the  Interstate  Commerce  Commission 
has  failed.  Why,  Mr.  Chairman,  how  can  we  rectify  her  wrongs,  which  are  properly 
cognizable  only  by  the  Interstate  Commerce  Commission?  We  cannot  touch  any- 
thing that  bears  upon  the  interstate  commerce  of  this  State,  which  is  perhaps  nine- 
tenths  of  the  commerce  of  this  State.  When  the  gentleman  from  Danville  has  failed 
to  succeed  before  the  Interstate  Commerce  Commission,  instead  of  resorting  to  the 


2316  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Intrastate  Railroad  Commissioner,  it  seems  that  he  presents  a  petition  to  the  Senate 
of  Virginia,  at  its  special  session,  1901,  at  a  time  when  that  body  had  adopted  a  reso- 
lution that  it  would  consider  no  matter  of  general  legislation,  as  to  a  matter  in 
reference  to  which  it  had  no  jurisdiction,  and  because  it  did  not  immediately  con- 
sider it,  government  by  the  Legislature  is  to  be  eternally  and  forever  damned. 

Not  only  that.  It  seems  that  there  was  an  accident  in  New  York  State,  and  for 
some  reason  or  other,  as  to  the  relevancy  of  which  I  have  been  unable  to  gather,  the 
legislative  government  in  Virginia  is  to  be  damned  because  the  railroad  used  soft 
coal  in  a  tunnel  in  the  State  of  New  York  when  it  ought  to  have  been  hard  coal. 
The  Legislature,  after  years  and  years  of  consideration,  adopted  a  railroad  commis- 
sioner's bill  in  this  State.  Again  and  again  was  a  similar  measure  to  the  one  we 
are  now  discussing  raised  in  the  Legislature  and  debated  in  the  Legislature,  and 
finally  by  a  compromise  a  law  was  enacted  in  1891-1892.  Since  that  time  popular 
agitation  has  almost  ceased  on  the  subject,  so  far  as  I  have  been  able  to  discover. 
If  there  was  anything  else  demanded  the  people  of  this  State  had  it  fully  within 
their  power  to  have  turned  down  the  faithless  representatives  in  the  Legislature  v/ho 
refused  to  amend  or  extend  the  powers  of  that  commissioner,  and  it  was  their  own 
fault,  and  it  is  to-day  their  own  fault,  if  they  do  not  elect  representatives  to  the 
Legislature  to  change  the  law  on  the  subject. 

Now  I  submit  that  on  any  intrastate  commerce  wrong  there  is  ample  remedy 
in  this  act,  and  if  the  gentleman  had  resorted  to  it,  instead  of  resorting  by  petition 
to  the  General  Assembly  of  the  State  for  legislation,  which  is  amply  embraced  within 
this  act,  I  submit  he  would  have  gotten  the  remedy  and  obtained  the  relief  of  which 
he  was  so  desirous. 

Nov/,  in  Section  14  of  that  act  a  very  simple  and  easy  remedy  is  provided,  and 
it  is  a  remedy  that,  in  a  case  within  my  own  knowledge,  referred  to  here,  was  re- 
sorted to  by  the  city  of  Winchester  and  relief  obtained,  and  the  case  carried  to  the 
Court  of  Appeals  in  this  State  and  there  affirmed: 

Whenever  upon  complaint  made  to  the  Railroad  Commissioner  or  from  his  own 
knowledge,  and  after  he  has  given  the  common  carrier  complained  of  reasonable 
notice  and  an  opportunity  to  be  heard,  and  has  fully  investigated  the  complaint,  it 
shall  appear  to  said  commissioner  that  any  common  carrier  doing  business  in  this 
State  has  failed  or  neglected  in  any  respect  or  particular  to  comply  with  the  pro- 
visions of  this  act  or  with  any  of  the  laws  of  this  Commonwealth  relating  to  the 
transportation  of  freight  and  passengers  by  common  carriers,  especially  in  regard 
to  connections  with  other  railroads,  the  rates  of  toll  and  the  time  schedule,  he  shall, 
in  writing,  request  the  said  com^mon  carrier,  or  person  operating  the  company,  to  cor- 
rect the  cause  of  com.plaint.  If  after  ten  days  the  said  company  neglects  or  refuses, 
the  said  commissioner  shall,  in  the  name  of  the  Commonwealth,  proceed  to  have  all 
matters  or  cause  of  complaint  adjusted  by  the  Circuit  Court,  or  the  judge  thereof  in 
vacation,  or  the  county  or  city  wherein  the  cause  of  complaint  arose,  having  first 
given  the  said  common  carrier,  or  person  operating  the  company,  ten  days'  notice, 
which  notice  shall  contain  the  cause  of  complaint.  The  case  shall  be  heard  by  the 
said  Circuit  Court,  or  the  judge  thereof  in  vacation,  on  said  notice,  and  no  other 
pleadings  shall  be  required.  The  said  court  or  judge,  if  its  decision  is  in  favor  of 
the  Commonwealth,  shall  by  m^andatory  or  restraining  order  prevent  the  common  car- 
rier or  person  complained  of  from  further  continuing  to  violate  the  law. 

And  then  an  appeal  is  given  on  the  decision  rendered  to  the  Court  of  Appeals 
and  the  Court  of  Appeals  has  jurisdiction  to  correct  any  error  committed  in  the  lower 
court.  The  law  is  express  that  no  discrimination  shall  be  permitted  to  any  common 
carrier  as  between  it  and  any  city  of  this  Commonwealth. 

But,  as  I  say,  Mr.  Chairman,  by  that  simple  remedy,  if  the  gentleman  from  Dan- 
ville had  resorted  to  it  and  had  brought  his  case  into  court  and  there  had  it  tried, 
he  would  have  obtained  the  relief  which  he  seems  to  have  been  so  desirous  of  obtain- 
ing. I  cannot  understand  how  legislation  could  be  fuller  or  how  rights  could  be 
more  amply  protected  than  by  permitting  a  party  who  is  aggrieved  to  bring  his  case 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


23ir 


into  court  and  have  it  there  determined  Yi'hat  right  he  has  and  what  is  the  proper 
remedy. 

As  I  say,  Mr.  Chairman,  that  case  is  not  a  hypothetical  case,  because  it  haa 
already  been  put  into  operation  and  has  already  been  passed  upon  by  the  Supreme 
Court  of  this  State,  and  relief  has  been  given  where  the  railroads  have  violated  the 
lav  of  the  State.  I  say,  therefore,  that  here  we  find  the  General  Assembly  of  this 
State  actually  enacting  such  laws  as  the  Commonwealth  demanded,  that  for  nine  or 
ten  years  the  people  have  found  the  same  satisfactory  and  have  permitted  that  state 
cf  affairs  to  exist,  that  they  have  sent  up  no  complaint  to  the  Legislature,  that  no 
demand  has  come  to  the  representatives  in  that  body  for  any  change  in  the  law,  or 
if  there  has  been  any  demand,  it  was  fully  within  the  power  of  the  Legislature  to 
have  corrected  it.  And  now,  with  the  Legislature  in  session,  it  is  still  within  the 
power  of  the  Legislature  to  meet  such  change  in  the  laws  as  the  people  themselves 
demand.  But  here  we  sit,  as  a  body  without  any  commission  from  the  people  to  pasrs 
upon  such  a  question,  with  the  questions  submitted  to  us  yet  unsolved.  Here,  I 
say,  we  are  undertaking  to  discharge  the  duties  of  the  Legislature  and  to  sit  in 
judgment  upon  that  body  vrhen  we  have  no  commission  from  the  people  to  do  so. 
It  comes  with  poor  grace  from  this  body  to  assume  an  attitude  of  criticism  toward 
the  Legislature.  It  was  the  Legislature  which  submitted  to  the  people  the  ques- 
tion of  whether  there  should  be  a  Constitutional  Convention.  It  was  submitted 
years  in  advance  of  the  period  fixed  in  the  Constitution  and  years  in  advance  of 
public  sentiment  upon  that  point,  because  at  the  vote  which  was  cast  for  the  Con- 
vention a  very  small  vote  in  the  vrhole  State  was  cast,  and  only  some  70,000  votes 
vrere  cast  for  the  Convention  when  there  are  something  like  over  400,000  electors 
in  this  State.  It  was  submitted  by  the  Legislature  in  spite  of  the  fact  that  in 
1897  the  proposition  was  voted  down  by  the  people.  Many  and  many  a  vote  was 
secured  for  the  Convention  by  the  device  which  the  Legislature  adopted  in  the 
law  of  having  printed  the  words,  "For  the  Convention,"  upoa  the  tickets,  and  not 
the  words.  "Against  the  Convention,"  on  the  ticket.  As  soon  as  the  people  had  in 
this  way  signified  their  approval  of  calling  a  Convention  in  this  State  the  Legis- 
lature assembled  in  General  Assembly  promptly  provided  for  the  election  of  the 
members  of  this  body.  I  do  not  believe  that  there  exists  in  this  State  any  real 
substantial  demand  for  a  revision  of  the  Constitution,  except  in  a  limited  degree. 
Of  course,  now  that  we  are  here  I  presume  the  people  think  that  we  ought  to  at- 
tend to  the  business  which  we  were  sent  down  here  to  attend  to,  and  do  look  for 
revision  of  the  Constitution;  but  I  say  that  as  a  matter  cf  fact  the  vote  upon  the 
subject  was  the  lightest  vote  that  has  been  cast  in  any  election  for  many  years, 
and  that  we  ought  therefore  to  consider  well  how  we  trespass  beyond  the  duties 
which  the  people  have  assigned  us  to  carry  out — the  duty  of  revising  the  funda- 
mental law  of  this  State — and  to  leave  matters  which  properly  belong  to  the  repre- 
sentatives cf  the  people  severely  alone. 

Now,  Mr.  Chairman,  I  have  not  undertaken  to  go  into  the  question  of  a  whole 
lot  of  figures  that  have  been  submitted  here.  I  have,  in  fact,  very  little  faith  in 
figures.  I  know  that  when  this  matter  was  being  debated  as  to  whether  we  should 
hold  a  Convention  there  were  a  great  many  figures  circulated  ail  over  this  State 
as  to  the  question  of  a  comparison  between  the  expenses  of  this  State  and  that  of 
North  Carolina,  and  many  of  them  came  from  my  friend  from  Danville  (Mr. 
Tv'ithers).  I  know  those  figures  had  a  great  effect  upon  the  vote  which  was  cast 
in  the  section  from  which  I  come,  and  great  weight  was  attached  to  the  allegation 
that  the  expenses  of  this  government  compared  very  unfavorably  with  those  of 
North  Carolina,  and  yet  I  have  seen  those  figures  very  much  que^ioned  and  dis- 
puted in  the  press  by  a  gentleman  who  himself  hails  from  North  Carolina;  and 
when  the  Bureau  cf  Statistics  of  the  United  States  is  consulted  we  find  that  the 
expenses  of  the  State  government  of  North  Carolina  in  actual  taxes  as  compared 


2318  DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

with  the  state  expenses  in  Virginia  are  much  greater,  omitting  the  question  of 
larger  appropriations  to  the  public  schools  and  to  the  Confederate  veterans.  So 
I  say,  Mr.  Chairman,  these  figures  arrayed  here  on  one  side  or  the  other  are  always 
misleading,  and  that  this  is  not  a  proper  place  to  consider  them.  We  are  not  here 
charged  with  the  duty  of  considering  these  figures.  I  do  not  care  if  this  was  the 
best  law  that  was  ever  framed  for  the  government  of  railroads,  we  would  have  no 
right  to  put  it  in  the  Constitution.  It  is  a  law  which  necessarily  deals  with  pres- 
ent conditions.  It  is  a  law  which  seeks  to  right  present  wrongs.  But  we  are  here 
not  to  legislate  as  to  present  wrongs  or  to  furnish  relief  from  present  wrongs,  but 
we  are  to  lay  the  foundation  stones  of  principles,  that  are  good  to-day  and  were 
good  yesterday,  and  will  be  good  for  all  time.  What!  Shall  we  undertake  to  put 
into  our  Constitution  an  act  that  contains  twenty-six  pages,  not  one  single  line  of 
which  and  not  one  single  word  of  which  has  ever  been  in  any  Constitution  of  this 
State — an  act  in  itself  longer  than  the  present  Con^itution,  as  an  entirety?  You 
are  putting  there  something  that  cannot  be  changed,  that  is  suitable  only  to  condi- 
tions as  they  now  exist,  cannot  be  adapted  to  circumstances  that  will  arise  in 
the  future.  Whereas  we  are  here  not  to  legislate  for  to-day;  we  are  here  simply 
to  furnish  a  bed-rock  for  the  legislation  of  the  days  that  are  to  come,  and  I  submit 
that  even  if  this  was  the  best  law  that  possibly  could  be  framed  for  the  conditions 
that  now  exist  in  this  State,  it  would  not  be  proper  to  make  it  a  constitutional 
measure. 

We  do  not  know,  we  cannot  conceive  of  how  this  thing  is  going  to  operate. 
We  cannot  tell  what  errors  there  may  be  in  it,  and  yet  we  put  it  beyond  the  control 
of  the  Legislature  of  the  State  and  beyond  the  control  of  the  people  of  the  State, 
except  by  a  tedious  and  expensive  method  of  correcting  it. 

Mr.  Chairman,  there  is  another  feature  which  I  think  is  exceedingly  objec- 
tionable, and  that  is  the  power  which  it  gives  to  the  Governor  of  this  State.  I  have 
no  objection  to  him;  the  fact  is,  I  have  great  admiration  for  the  present  Governor 
of  this  State,  as  I  have  for  the  one  who  preceded  him.  He  is  the  peer  of  any  man 
who  could  be  found  to  fill,  in  my  humble  judgment,  that  high  office.  But  I  am  op- 
posed to  conferring  upon  him  the  powers  properly  appertaining  to  the  people  or 
their  immediate  representatives;  and  yet  all  through,  as  was  remarked  here  the 
other  day  by  the  gentleman  from  Alexandria,  all  through  the  warp  and  woof  of  our 
proposed  Constitution  runs  a  suggestion  to  take  away  power  from  the  representa- 
tives of  the  people  and  put  it  in  the  hands  of  the  Governor  of  the  State.  I  think 
it  is  exceedingly  objectionable.  It  is  building  up  a  one-man  power  in  this  State. 
It  is  affording  an  opportunity  for  ring  rule  in  this  State,  such  as  the  State  has 
never  known,  and  no  other  State  in  this  Union  has  ever  known,  and  if  the  Governor 
was  the  highest  man  in  the  State  it  would  be  a  wrong  principle  and  a  dangerous 
experiment  to  put  such  power  in  the  hands  of  any  one  man. 

Let  us  examine  some  of  the  matters  that  have  passed  through  this  Convention 
along  that  line.  Why,  sir,  in  regard  to  the  legislative  department,  restrictions  have 
been  laid  upon  it;  its  time  of  session  has  been  shortened,  and  its  method  of  electing 
senators  has  been  shortened.  It  sits  but  sixty  days  in  two  years,  and  then  it  passes 
out  of  existence.  The  Governor  has  the  power  to  veto  measures,  and  he  has  the 
power  of  convening  the  Legislature  at  will.  He  has  that  power  in  the  legislative 
department. 

When  you  come  to  the  judiciary  department,  he  has  power  to  fill  vacancies,  and 
when  you  come  to  the  public  schools  of  this  State,  the  public  schools  of  this  State 
are  in  the  hands  of  a  board  appointed  entirely  by  the  Governor,  or  virtually  by  the 
Governor.  I  think  six  out  of  eight  of  them  are  substantially  the  appointees  of  the 
Governor.  The  whole  public  school  system  of  the  State  is  in  the  hands  of  a  board, 
and  a  board  which  is  appointed  by  the  Governor,  and  which  is  independent  of  the 
Legislature  of  this  State.  When  you  come  to  the  public  institutions,  we  have  again 
another  board  to  control  the  appropriation  of  some  $300,000  a  year,  if  I  am  not  mis- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


2319 


taken  as  to  the  amount,  a  board  which  is  again  appointed  by  the  Governor  of  this 
State,  and  which  for  the  first  time  is  placed  in  the  Constitution  so  as  to  be  out  of 
the  reach  of  the  Legislature  of  the  State.  Again,  the  Agricultural  Department  of 
this  State  is  appointed  hy  the  Governor,  and  again,  for  the  first  time  in  the  history 
of  the  State,  the  Agricultural  Department  is  made  a  part  of  the  Constitution,  and  it, 
too,  is  beyond  the  reach  of  the  representatives  of  the  people. 

Mr.  Meredith:    When  the  report  was  up,  did  you  not  refuse  to  vote  for  it? 

Mr.  Harrison:  I  voted  for  the  present  judiciary  system  of  the  State  in  prefer- 
ence to  the  proposed  one.  As  to  the  election  of  judges,  that  was  simply  as  to  the 
Supreme  Court  judges  of  the  State;  so  far  as  the  circuit  judges  are  concerned,  I 
have  always  been  in  favor  of  electing  them  by  the  people,  and  I  have  said  so  on  this 
floor,  and  I  have  voted  in  every  instance  that  I  can  recollect  for  the  election  by  the 
people  of  the  various  officers  of  this  State.  I  say  again  that  we  have  here  the  Agri- 
cultural Department,  the  public  schools,  the  public  institutions  of  the  State,  and 
now  we  have  the  proposition  to  put  the  railroads  of  the  State  at  the  mercy  of  a 
board  appointed  by  the  Governor.  The  Labor  Commissioner  is  appointed  by  the 
Governor,  and  the  Governor  performs  other  functions  in  this  State  which  give  him 
a  power  that  no  other  Governor  of  any  State  in  this  Union,  if  I  am  rightly  informed, 
has  the  power  of  exercioing.  Look  at  the  tremendous  influence  that  will  accrue 
to  a  Governor  of  a  State  by  being  able  to  control  the  railroad  and  all  their  em- 
ployes. I  say  it  is  wrong,  and  it  is  unfortunate  that  a  Convention  which  has  been 
called  by  as  small  a  vote  as  this  was,  that  has  really,  so  far  as  I  can  see,  no  popular 
sentiment  behind  it — I  say  it  is  unfortunate  that  this  Convention  be  continually 
making  war  upon  the  right  of  the  people  to  control  their  own  State  affairs,  and  to 
destroy  their  old  time  honored  institutions. 

Mr.  Barbour:  Would  3'ou  favor  the  election  of  this  corporation  commissioner 
by  the  people? 

Mr.  Harrison;  Yes,  sir;  I  am  going  to  vote  for  that.  But  I  am  opposed  to  hav- 
ing anything  in  this  Constitution. 

I  do  not  think  it  belongs  in  the  Constitution.  I  do  not  think  it  has  anything  to 
do  with  the  Constitution;  but  I  am  citing  here  now  the  trend  of  the  power  that  we 
are  putting  into  the  hands  of  one  man  in  this  State  and  the  limitations  that  we  are 
putting  upon  the  power  of  the  representatives  of  the  people.  I  am  surprised,  too, 
Mr.  Chairman,  that  the  gentleman  whom  I  have  followed  throughout  in  his  advo- 
cacy of  the  rights  of  the  people  is  one  of  the  signers  of  this  report.  The  gentleman 
from  Pulaski  (Mr.  Wysor)  has  on  this  floor  advocated  that  we  were  representatives 
of  limited  power;  that  we  had  no  power  except  to  propose  amendments,  and  has 
again  and  again  advocated  the  rights  of  popular  influence  in  the  government.  Why, 
sir,  I  saw  a  letter  in  one  of  these  newspapers,  in  which  it  was  proposed  to  make  a 
State  out  of  the  counties  west  of  the  Blue  Ridge,  the  head  of  which  was  to  be  the 
gentleman  from  Pulaski,  and  the  Constitution  of  which  w^as  to  be  the  right  of  every 
,  man  to  vote  and  the  right  of  free  government  unlimited  and  unrestricted;  and  here 
we  find  the  gentleman  at  whose  feet  I  have  sat  in  this  Convention  in  an  endeavor 
to  learn  wisdom  signing  a  report  that  takes  away  virtually  the  right  of  the  Legisla- 
ture and  the  representatives  of  the  Legislature  to  control  the  great  and  important 
interests  of  transportation  companies  and  transmission  companies,  and  places  it  in 
the  hands  of  a  board,  and  an  irresponsible  board  to  the  people — a  board  that  holds 
for  six  years,  the  only  feature  of  which,  it  seems  to  me,  to  be  very  commendable  is 
that  one  is  to  be  a  lawyer.  (Laughter.)  There  are  sixt3'-five  lawyers,  I  understand, 
and  they  have  taken  care  of  one  of  their  number  in  that  way,  because  one  of  this 
board  is  to  be  a  lawyer  and  is  to  get  a  good  salary  of  $3,000  a  year. 

Mr.  Chairman,  it  is  an  exceedingly  dangerous  experiment  to  place  in  the  hands 
of  the  Governor  of  this  State  a  board  which  controls  the  railroads  of  the  State,  and 
all  the  powerful  influences  which  they  can  bring  to  bear  upon  the  electorate.  Why, 


2320  DEBATES  OF  THE  COXSTITUTIOl^AL  CONVENTIOI^  OF  VIKGINIA. 

sir,  it  seems  to  me  that  everything  in  this  Convention  is  run  by  boards.  The  right 
of  a  man  to  vote  is  to  be  controlled,  if  the  majority  plan  goes  through  here,  by  a 
board  to  pass  on  whether  or  not  he  is  capable  of  voting.  And  a  board  controls  the 
public  institutions;  a  board  controls'  the  public  schools  of  the  State;  a  board  is  to 
control  the  railroads  of  the  State;  a  board  controls  the  agricultural  interests  of  the 
State;  and  everywhere  we  find  exalted  by  this  Convention  boards  to  perform  the 
duties  which  the  people  have  always  entrusted  to  the  General  Assembly  of  the  State. 
We  have  a  board  rule  which  I  think  is  the  most  objectionable  form  of  government 
that  could  possibly  be  inflicted  upon  the  people.  I  would  prefer  to  see  the  power  in 
the  hands  of  one  re^onsible  person  who  could  be  held  responsible  directly  to  the 
people  than  to  have  the  State  governed  by  a  number  of  boards  which  are  independent 
of  all  control  and  of  all  restraint  by  the  people. 

Mr.  Chairman,  I  have  talked  much  longer  than  I  had  any  idea  of  doing.  I  ob- 
ject to  this  report  upon  the  fundamental  ground  that  it  has  no  place  in  the  Consti- 
tution; that  it  is  not  justified  by  the  present  conditions  in  this  State,  and  not  justi- 
fied by  the  history  of  the  Commonwealth.  We  have  seen  this  State  come  up  from 
the  ashes  of  the  war.  We  see  now  in  the  Valley  fields  that  were  so  desolate  that  a 
Union  general  said  a  crow  flying  across  would  have  to  carry  his  rations,  blossoming 
now  like  a  garden  of  Eden,  and  I  hear  in  this  capital  city  that  was  destroyed  by 
fire  and  was  a  ruin  after  the  war  the  music  of  great  commercial  enterprises,  going 
on  around  us  everywhere.  Everywhere  I  see  prosperity  and  progress.  Why  should 
we  step  in  now  and  attempt  to  turn  that  prosperity  back  by  experiments  the  result 
of  which  we  cannot  foresee  by  legislating  in  the  Constitution  against  evils  that 
exist  to-day  but  may  not  exist  to-morrow?  I  hope,  Mr.  Chairman,  it  will  be  the 
pleasure  of  this  Convention  to  turn  down  this  report,  although,  in  their  judgment, 
it  may  be  most  excellent  legislation,  and  leave  to  the  people  to  suggest  &uch  legisla- 
tion as  they  think  proper  through  the  representatives  that  they  have  elected  for 
that  purpose. 

Mr.  Wysor:  Mr.  Chairman,  with  the  indulgence  of  the  committee,  I  wish  to 
make  a  few  remarks  on  the  pending  measure.  I  will  affiict  the  committee  to-day 
with  my  firstly,  my  secondly,  and  my  thirdly,  and  to-morrow  with  my  fourthly,  my 
fifthly,  and  my  sixthly.  I  want  my  speech  to  cover  two  issues  of  the  Richmond 
Dispatch.  That  estimable  paper  is  against  the  pending  measure,  and  I  want,  if  pos- 
sible, to  convince  it  of  the  error  of  its  way.  (Laughter.)  Then  it  will  be  some  sat- 
isfaction to  my  children,  to  my  grandchildren,  and  to  my  great-grandchildren,  and 
to  my  great-great-grandchildren,  to  know  that  I  have  made  a  speech  which  may  be 
found  somewhere  in  the  numberless  volumes  of  the  reports  of  the  proceedings  and 
debates  of  the  great  Convention  of  1901-'2.  It  will  be  and  is  a  great  satisfaction  to 
me  to  know  that  my  speech  will  go  along  down  through  the  grooves  and  corridors 
of  time  di^ant  ages  alongside  of  the  great  speeches  of  the  Andersons,  Ayers,  Bar- 
bour, Brooke,  Brown,  Cameron,  Carter,  Daniel,  Dunaway,  Flood,  Glass,  Goode,  the 
Gordons,  Greene,  Hamilton,  Hancock,  Harrison,  Hatton,  Hooker,  Hunton,  Ingram, 
the  Joneses,  Keezell,  Kendall,  Marshall,  Lindsay,  Meredith,  Moore,  R.  Walton,  Fair- 
fax, Pollard,  Portlock,  Richmond,  Robertson,  Stebbins,  Stuart,  Thom,  Thornton, 
Turnbull,  Waddill,  Walker,  Wescott,  Wise,  Withers,  and  last,  but  not  least,  Daniel 
Cullers  O'Flaherty.  (Laughter.) 

I  am  proud  of  the  article  on  corporations.  It  has  withstood  the  assaults  of  the 
opposition  like  the  rock  of  Gibraltar.  It  amuses  me  to  see  its  enemies  assail  it, 
and  then  fall  back  like  little  rubber  balls  from  an  iron  wall. 

I  want  to  notify  the  opposition  that  I  am  a  mere  skirmisher  in  this  great  battle, 
and  when  they  drive  me  in,  then  they  will  come  upon  great  guns,  like  Braxton  and 
Kendall,  Ingram  and  Stebbins,  Mcllwaine  and  Danaway,  Greene  and  Withers,  Wes- 
cott and  Turnbull,  and  a  host  of  others  who  will  blow  them  to  atoms.  (Laughter.) 

To  make  victory  doubly  sure,  back  of  these  great  guns  is  the  old  guard,  com- 


IDEBATZS  OF  THE  COXSTIirTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


.2321 


posed  of  men  like  Bosjz,  Bolen,  Bro^sn,  P.  W.  Campbell,  Fairfax,  Goode,  the  Gordons. 
G-ywn,  the  Joneses,  Keezell,  La^'son,  Lindsay,  Meredith,  Miller,  Orr,  Parks,  Pollard, 
Quarles,  Richmond,  Stuart,  Waddill,  T^'alker,  Willis,  Woodhouse,  Yancey,  and  the 
President.  (Laughter.)  This  old  guard  never  surrenders,  and  our  gallant  captain, 
the  chairman  of  the  Committee  on  Corporations  (Mr.  Braxton),  has  directed  it  to 
nold  its  fire  until  it  sees  the  very  vrhites  of  the  eyes  of  the  enemy.  (Laughter.) 

The  chief  credit  for  this  report  is  due  to  the  chairman  of  the  committee,  the 
Honorable  A.  C.  Braxton.  I  say  vrithout  hesitation  that  it  is  the  ablest  and  finest 
paper  that  has  ever  been  presented  to  this  Convention,  and  that  vrhen  embodied  in 
the  organic  law  it  v%-ill  be  an  ornament  to  the  C-onstiiution,  and  the  chairman  will 
perhaps  be  the  only  man  who  will  have  his  name  linked  with  any  remote  future. 
T\^hen  this  article  is  adopted,  the  people  of  this  Commonwealth  from  the  moun- 
tains to  the  sea  will  honor  him,  and  future  generations  will  praise  him.  For  many 
long  weary  weeks  and  months  he  has  v>-orked  upon  this  article  in  the  basement  of 
the  Capitol.  The  members  frequently  referred  to  him  jocosely  as  being  in  the  cata- 
combs, but  T  knew  he  would  come  up  out  of  the  catacombs.  I  knew  he  would  shake 
the  catacombs  from  his  neck  as  the  lion  shakes  the  dewdrops  from  his  mane.  It  is 
hard  to  keep  a  red-headed  man  down  (Laughter)  ;  and  another  thing  is,  these  red- 
lieaded  men  all  stand  together. 

We  are  told  that  this  article  shows  hostility  to  corporations.  I  deny  it.  There 
is  not  a  word  cf  truth  in  the  assertion.  I  have  been  upon  the  Committee  on  Corpo- 
rations, and  I  know  that  no  hostility  has  been  manifested  in  that  committee  towards 
them.  I  like  corporations  myself.  I  like  them  better  when  they  employ  me.  Why 
should  the  committee  be  hostile  to  corporations?  Why  should  any  member  of  the 
Convention  be  hostile  to  corporations?  vre  know  the  necessity  of  corporations. 
We  are  aware  of  their  usefulness.  We  know  they  are  the  result  of  modern  civiliza- 
aticn,  and  that  there  cannot  be  much  progress  without  them.  We  are  told  we  ought 
not  pass  this  measure  because  corporations  have  been  good  to  us.  Well,  that  is 
true  in  some  respects.  They  may  have  been.  I  want  to  say,  however,  that  we  have 
teen  good  to  corporations.  They  say  that  corporations  develop  the  resources  of  the 
State.  I  reply  that  the  resources  of  the  State  develop  corporations,  and  that  corpo- 
rations therefore  get  as  much  out  of  the  development  as  the  people  who  own  the 
resources.  Members  talk  in  the  Convention  as  if  it  were  but  a  one-sided  question, 
and  that  corporations  are  constantly  bestowing  favors  upon  the  people  and  the  peo- 
ple no  favors  upon  corporations.  They  put  the  corporations  very  much  in  the  posi- 
tion of  a  man  who  loans  money  at  twelve  per  cent.  You  never  saw  a  man,  and  you 
never  will,  I  reckon,  who  loans  money  at  twelve  per  cent,  who  does  not  think  he 
is  putting  the  man  who  horrows  the  money  under  obligations  to  him.  I  think  it  is 
a  iwo-sided  question,  and  that  the  man  who  borrows  the  money  and  makes  it  useful 
and  profitable  to  the  man  who  owns  it  puts  that  man  under  as  much  obligation  to 
Mm  as  the  borrower  is  to  the  lender. 

The  able  gentleman  from  Norfolk  told  me  on  one  occasion  that  we  wanted  to 
put  corporations  in  strait-jackets.  I  replied,  '-'Xo,  we  want  to  put  a  good  suit  of 
clothes  upon  them,  so  that  they  may  be  able  to  appear  on  all  occasions  in  respectable 
society.-''  (Laughter.) 

Corporations  are  the  children  of  the  State,  and  it  is  the  duty  of  the  State  to 
look  after  them  and  teach  them  in  the  way  they  should  go.  We  have  a  provision 
liere  in  this  article,  for  example,  which  provides  that  they  shall  not  water  their 
stock.  Well,  now,  the  purpose  of  that  is  to  make  them  honest.  Is  it  detrimental  to 
corporations  to  make  them  honest?  Is  it  not  a  part  of  the  duty  of  the  State  to 
these,  its  creatures,  its  children  in  vrhich  it  has  so  much  interest,  to  make  them 
reasonably  honest? 

The  corporations  themselves,  I  do  not  think,  would  have  much  objection  to  this 
measure.    Thesfi  objections  are  made  all  over  the  State  by  men  who  think  they 


2322 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


should  constitute  themselves  the  guardians  of  corporations.  Why,  this  measure 
before  it  ever  came  before  this  body  had  been  constantly  misrepresented,  so  that  the- 
corporations  did  not  understand  it.  Men  all  over  the  State  who  had  derived  some- 
benefit  from  corporations,  or  expected  to  derive  some  benefit  from  them,  were  con- 
stantly misrepresenting  the  intentions  of  the  Committee  on  Corporations  and  of  the 
Convention.  There  is  no  use  to  argue  to  one  of  those  men.  Did  you  ever  try  it? 
There  are  none  so  blind  as  those  who  will  not  see,  and  none  so  deaf  as  those  who 
will  not  hear.  You  talk  to  one  of  them,  and  he  will  look  like  a  perfect  blank  if  you 
talk  to  him  on  the  subject  of  passing  any  law  in  regard  to  corporations  at  all.  He 
cannot  see  it.  He  will  not  see  it.  Our  present  Constitution  is  a  blank  on  that  sub- 
ject, and  he  wants  the  new  Constitution  to  have  a  blank  on  it. 

What  is  there  in  this  article  that  shows  any  hostility  to  corporations?  It  is 
here;  you  have  read  it.  Take  it  as  to  private  corporations.  It  simply  provides  how 
they  shall  get  their  charters.  It  provides  that  they  shall  make  certain  reports  to 
the  commission.  It  enables  the  State  to  keep  track  of  them,  to  know  what  property 
they  have,  and  to  impose  proper  taxes  upon  them. 

This  article  was  at  first  misrepresented  to  private  corporations.  They  sent 
agents  and  attorneys  down  here  to  argue  before  the  Committee  on  Corporations,^ 
but  as  soon  as  they  understood  it  they  retired  from  the  scene.  Where  is  any  pri- 
vate corporation  now  making  any  fight  against  this  article?  Where  is  there  one  in 
the  State?    Private  corpora.tions,  as  I  understand  it,  are  satisfied  with  it. 

Mr.  Thom:  I  should  like  to  know  if  I  am  mistaken  in  thinking  that  after  the 
argument  before  the  committee  on  behalf  of  these  private  corporations,  the  article 
theretofore  proposed  was  practically  abandoned  and  something  very  different,  and 
much  less  drastic,  was  brought  in  as  the  report  of  the  committee? 

Mr.  Wysor:  The  article,  when  the  argument  was  made  before  the  Committee 
on  Corporations,  was  simply  in  a  tentative  shape.  We  were  proposing  to  deal  with 
this  subject  and  we  were  willing  and  anxious  to  hear  all  parties  interested  in  the 
matter.  It  v/as  before  the  article  had  assumed  definite  shape  that  these  misrepre- 
sentations took  place.  The  article  has  been  changed,  and  is  now  in  its  final  shape; 
but  while  many  changes  have  been  made  from  the  tentative  form,  I  do  not  think  the 
great  changes  have  been  made  in  it  that  the  gentleman  mentioned.  It  is  perhaps 
less  drastic  in  some  respects  than  it  was  when  the  argument  was  made  before  the 
Committee  on  Corporations. 

I  say  private  corporations  are  making  no  fight  against  it,  so  far  as  I  know;  so 
they  are  satisfied.  This  article  is  intended,  and  was  intended  from  the  beginning, 
to  encourage  the  formation  of  private  corporations,  to  foster  their  growth  and  to 
make  them  prosperous.  That  was  one  of  the  very  first  enunciations  made  by  the 
committee  of  its  intentions.  Every  one  of  them  v^^as  impressed  by  one  idea  of  the 
great  usefulness  of  private  corporations  to  the  Commonwealth,  and  we  aZl  were 
anxious  to  pass  laws  that  would  encourage  their  formation  and  promote  their 
growth  and  prosperity.  That  is  the  kind  of  article  we  think  we  have  framed,  and 
these  private  corporations  which  were  misled  into  a  fight  against  it  have  abandoned 
that  fight.  It  has  a  provision  in  it  on  the  fellow-servants  doctrine.  The  article  is 
simply  a  modification  of  the  doctrine  of  fellow-servants  as  now  enunciated  by  the 
Supreme  Court  of  Appeals.  It  restores  the  doctrine  of  separate  departments,  and 
of  superior  and  inferior  servants,  and  makes  the  employer  in  some  instances  liable 
even  where  men  are  fellow-servants.  The  doctrine  of  fellow-servants,  as  promul- 
gated by  the  Supreme  Court  of  the  State  has  by  everybody,  by  the  common  consent 
of  civilized  mankind,  been  held  to  be  too  hard  upon  the  servants.  Our  present 
Supreme  Court  realized  that  the  doctrine  as  laid  down  by  it  ought  to  be  modified, 
and  has  intimated  that  in  several  of  its  opinions. 

I  am  not  here  to  criticize  our  present  Supreme  Court.  I  admire  the  court;  and 
that  is  one  body  of  men  I  should  like  to  see  hold  of&ce  as  long  as  they  are  capable 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2323 

and  efBcient.  They  are  conscientious  in  their  opinions.  It  is  true  they  overturned 
the  decisions  of  our  Supreme  Court  as  constituted  before  the  present  court  was 
elected,  but  they  did  it  conscientiously,  and  the  great  current  of  authority  through- 
out the  Union  supports  their  decisions.  I  have  talked  to  some  of  the  judges  myself 
since  this  measure  has  been  before  the  body,  and  they  think  the  doctrine  ought  to 
be  modified. 

We  do  not  hear  these  gentlemen  making  any  objections  much  in  the  Conven- 
tion to  the  fellow-servants  bill.  They  squeal  on  that  subject.  They  intimate  that 
they  are  willing  for  that  to  go  in  the  Constitution.  Well,  they  see  it  is  going  in  the 
Constitution.  Both  parties  in  the  State  have  enunciated  in  their  platform  that 
such  a  doctrine  shall  be  enacted  into  law.  Some  of  the  gentlemen  say  they  do  not 
have  any  particular  objection  to  it,  though  it  is  hardly  a  constitutional  measure. 
I  say  while  it  might  be  enacted  by  the  Legislature,  we  think  we  have  framed  a 
proper  modification  of  it,  and  that  the  Constitution  is  the  place  to  put  it,  in  order  to 
make  it  very  beneficial  to  the  servants  in  the  employment  of  these  great  corpora- 
tions. We  will  put  it  where  it  will  stay,  and  where  it  will  endure,  where  it  will  re- 
main fixed,  and  give  them  a  benefit  which  cannot  be  taken  away  from  them,  which 
cannot  be  diminished,  though  it  may  be  enlarged. 

Now,  then  to  come  to  the  subject  of  regulation  and  control  of  transportation 
and  transmission  companies.  There  is  the  rub;  there  is  the  fight;  that  is  the  thing 
which  they  say  they  do  not  want.  One  of  their  arguments  is  that  there  is  no  occa- 
sion for  it.  I  submit  to  the  committee  that  there  is  not  a  man  in  the  Convention 
who  does  not  know  that  there  has  been  continually  great  complaint  all  over  the 
Commonwealth  against  transportation  and  transmission  companies.  We  all  know 
that.  It  is  a  matter  of  common  rumor,  common  report,  and  a  matter  that  every 
man  knows,  that  there  is  such  complaint,  whether  it  be  founded  or  unfounded;  and 
I  think  the  gentleman  from  Halifax  (Mr.  Stebbins)  and  the  gentleman  from  Dan- 
ville (Mr.  Withers)  in  their  speeches  showed  conclusively  there  was  some  founda- 
tion for  that  complaint. 

Transportation  and  transmission  companies  do  make  rates  frequently  in  favor 
of  certain  individuals  or  certain  localities.  It  is  a  matter  of  fact  that  they  can  build 
up  one  man  and  tear  down  another.  It  is  a  matter  that  must  impress  itself  upon 
the  most  ordinary  mind  that  they  have  it  in  their  power  to  destroy  one  man  and 
build  another,  to  destroy  one  locality  and  build  another,  and  even  if  there  were  no 
complaint  against  them,  it  would  be  proper  to  pass  a  proper  article  and  put  it  in  the 
Constitution  to  prevent  them  from  doing  these  very  things. 

The  gentleman  from  Roanoke  (Mr.  Robertson)  in  his  speech  said  there  is  no 
complaint.  I  say,  whether  true  or  false,  a  great  complaint  goes  up  from  this  Com- 
monweal A,  and  from  all  over  the  Union:  "Take  the  horrid  beak  of  corporate  greed 
from  out  our  hearts,  and  its  black  form  from  off  our  doors."  I  say  such  a  complaint 
as  that  goes  up  all  over  the  Union,  and  it  is  proper,  therefore,  to  pass  some  measure 
to  regulate  and  control  them. 

We  know  they  have  superseded  all  other  methods  of  transportation  and  trans- 
mission. Why,  take  the  railroads  of  the  country.  They  are  the  great  arteries  of 
commerce.  Shall  it  be  said  we  shall  exercise  no  control,  no  supervision,  over  these 
great  arteries  of  our  commerce  when  they  have  superseded  all  other  methods  of 
transmission  and  transportation;  that  we  cannot  say  to  them,  "Your  rates  shall  be 
reasonable?-"'  Take  a  telephone  company,  for  instance.  I  do  not  like  to  speak  of 
myself,  but  I  am  a  stockholder  and  director  in  a  telephone  company,  and  a  pretty 
big  one,  which  runs  from  Roanoke  to  Bristol.  We  own  every  exchange  from  Roa- 
noke to  Bristol  along  the  line  except  Wytheville,  and  we  have  traffic  arrangements 
with  it.  Now,  we  naturally  would  not  want  anbody  to  interfere  with  our  rates. 
The  men  who  manage  it  are  honest  and  patriotic.  But  I  say  this,  and  I  try  to  be 
honest  as  any  man  here,  that  we  might  give  way  to  the  temptation,  if  presented  to 


2324  DEBATES  OF  THE  COi^STITUTIOJs^AL  CONVENTION  OF  VIEGINIA. 

make  ourselves  rich  at  the  expense  of  the  great  majority.  That  is  human  nature. 
That  is  what  public  service  companies  will  be  tempted  to  do  unless  restrained  and 
restricted. 

Now,  take  a  telephone  company.  Do  you  want  to  say  you  cannot  regulate  the 
rates  of  that  concern?  You  might  have  two  here  in  Richmond.  One  might  be  more 
wealthy  and  powerful  than  the  other.  It  might  lower  its  rates  and  destroy  the 
other,  and  then  put  its  rates  up  on  you  to  suit  itself.  Is  that  right?  Is  there  to  be 
no  control  or  regulation  of  such  a  thing  as  that?  I  say  the  State  itself  ought  to 
control  them.  It  ought  not  to  let  that  big  corporation  destroy  the  small  one.  They 
ought  to  be  protected  against  each  other,  and  the  people  ought  to  be  protected  against 
both.  We  know  that  to  be  so.  Every  man  in  this  hall  knows  that  when  a  big  tele- 
phone company  destroys  a  little  one,  the  temptation  is  to  raise  its  prices  just  as 
much  as  the  people  will  bear  in  order  that  the  persons  interested  in  that  concern 
may  grow  speedily  rich. 

Judge  Baxter,  in  his  argument,  said  that  usually  in  making  Constitutions  we 
put  provisions  in  Constitutions  to  protect  the  minority  from  the  majority.  That 
may  be  true  as  the  usual  rule.  In  this  article  we  want  to  protect  the  majority  from 
the  minority.  That  is  what  you  want  it  in  the  Constitution  for.  Transportation  and 
transmission  companies  are  in  the  minority.  When  they  do  wrong  they  perpetrate 
the  wrong  upon  the  great  body  of  the  people,  and  the  provision  is  intended  to  pro- 
tect the  majority  against  the  minority. 

Have  we  power  to  do  it?  Well,  now,  I  suppose  that  is  hardly  debatable.  They 
have  a  part  of  the  sovereignty  of  the  State.  They  can  condemn  property.  They  put 
the  creatures  of  the  State,  and  it  is  admitted  that  the  State  has  the  power  to  regu- 
late and  control  them.  Judge  Baxter,  who  represents  a  large  number  of  public  ser- 
vice corporations  before  the  Interstate  Commerce  Commission,  admitted  in  his  ar- 
gument before  the  Corporations  Committee  that  we  had  a  right  to  regulate  and  con- 
trol these  corporations.  He  said  in  so  many  words  that  we  had  a  right  to  authorize 
the  commission  to  fix  their  rates,  provided  we  did  not  do  it  to  the  extent  of  con- 
fiscation. No  man  will  deny  that  the  State  has  power  to  empower  a  commission  to 
fix  reasonable  rates. 

So,  then,  we  have  the  power  to  pass  this  article.  We  have  shown  that  there 
are  great  complaints  against  these  transportation  and  transmission  companies.  It, 
then,  resolves  itself  into  a  mere  question  of  public  policy.  The  question  is,  Is  this 
a  good  measure?  Well,  I  have  already  argued  the  main  provisions  of  the  measure. 
Let  us  look  at  some  of  the  objections  to  it.  We  are  told  it  interferes  with  the  pri- 
vate business  of  corporations.  It  does  no  such  thing.  It  does  not  pretend  to  do  any 
such  thing.  Its  language  limits  it  to  the  public  duties  of  these  corporations;  to  the 
duties  which  they  owe  the  public.  These  objections  are  far-fetched,  and  I  do  not 
believe  the  gentlemen  who  make  them  believe  in  them.  Why,  Judge  Baxter  pre- 
tended that  he  believed  that  the  article  authorized  the  commission  to  order  a  rail- 
road company  to  go  and  build  a  branch  road,  or  to  engage  in  this  kind  of  enterprise 
or  that  kind  of  enterprise.  There  is  not  a  word,  a  syllable  or  a  line  in  the  article 
that  justifies  any  such  assertion,  or  conclusion. 

Yv^e  are  told  by  some  that  it  violates  the  fundamental  principles  of  our  govern- 
ment, that  the  article  gives  the  commission  legislative,  judicial  and  executive  powers. 
It  is  true  it  does  give  the  commission  these  powers.  It  is  necessary  to  give  them 
such  powers  to  make  the  article  efficient.  It  is  proper  to  give  them  such  powers, 
and  it  does  not  contravene  in  the  slightest  degree  the  general  principle  of  our  gov- 
ernment that  the  great  departments,  legislative,  executive  and  judicial,  shall  be 
kept  separate  and  distinct.  Why,  many  officers  have  three  powers — legislative, 
executive  and  judicial.  The  Senate  of  the  United  States  has  just  such  powers  as 
that;  and  yet  no  man  would  say  that  because  the  Senate  has  such  powers  that  it  con- 
travenes the  great  doctrine  of  separate  departments  of  the  government  of  which  I 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA.  2325 

have  spoken.  The  Senate  possesses  the  legislative  power  to  make  law,  the  judicial 
power  to  try  and  decide  cases  of  impeachment,  and  the  executive  power  to  approve 
and  ratify  appointments. 

We  are  told  that  it  should  be  left  to  the  Legislature.  The  gentleman  from  Win- 
chester (Mr.  Harrison),  who  just  addressed  us,  said  it  should  be  left  to  the  Legis- 
lature. Left  to  the  Legislature,  indeed!  You  cannot  get  the  Legislature  to  fix  the 
finger  on  Henry  Clay's  statute,  at  the  foot  of  Capitol  hill.  The  poor  old  man  whose 
oratory  inspired  millions  with  patriotic  impulses  has  been  standing  down  there  all 
v/inter  in  the  rain  and  the  wind  and  the  snow  with  one  of  his  fingers  off.  It  is  a 
shame.  It  is  a  measly  shame.  (Laughter.)  Let  the  Legislature  fix  Clay's  finger, 
and  we  v/ill  attend  to  this  article  on  corporations. 

We  are  told  that  the  article  should  not  go  into .  the  Constitution!  That  is  the 
point,  and  the  only  point,  made  by  the  gentleman  from  Roanoke  in  his  very  able 
and  eloquent  speech.  It  is  the  main  point,  and  it  is  going  to  be  relied  upon  by  the 
able  and  eloquent  gentleman  from  the  city  of  Norfolk  (Mr.  Thom),  who  will  close 
this  debate  for  the  opposition — that  it  is  a  legislative  matter,  that  it  is  not  proper 
to  go  into  the  Constituion,  Now,  I  want  to  say  that  a  Constitution  itself  is  a  species 
of  legislation.  It  is  simply  the  people  legislating  in  a  more  enduring  form  through 
their  representatives  in  Convention  assembled.  It  is  true  you  cannot  change,  re- 
peal, or  change  the  provisions  which  are  put  in  the  Constitution  as  readily  as  you 
can  an  act  of  the  Legislature.  All  modern  Constitutions  have  more  or  less  legisla- 
tion in  them.  Judge  Baxter  in  his  speech  admitted  it.  He  said  he  considered  it  the 
vice  of  modern  constitutions. 

Now,  if  the  article  is  a  good  one,  a  proper  one,  what  objection  is  there  to  putting 
it  in  the  Constitution?  There  is  a  grave  question  w^hether  or  not  the  Legislature 
can  enact  such  an  article  as  this.  I  do  not  assert  it  positively.  The  point  was 
called  to  my  attention  by  the  gentleman  from  Westmoreland  (Mr.  Walker)  just  be- 
fore I  got  upon  my  feet.  The  Legislature  is  a  separate  department  of  the  govern- 
ment; it  may  have  no  power  to  create  another  depa,rtment  of  the  government  hav- 
ing judicial  powers  such  as  this  commission  is  given.  The  great  departments  of 
the  government  mu^  be  made  by  the  people  in  Convention  assembled.  They  must 
be  put  in  the  Constitution.  Now,  if  we  are  constituting  a  commission  which  has 
judicial  powers,  which  has  the  functions  of  a  court,  to  hear  cases  and  decide  them, 
and  is  to  all  intents  and  purposes  a  court,  it  is  a  grave  question  as  to  whether  or 
not  the  Legislature  can  pass  any  such  act  as  that,  and  whether,  if  we  wish  to  pass 
it,  we  are  not  bound  to  put  it  in  the  Constitution.  But  if  the  act  is  good,  if  it  Is 
plain,  if  its  meaning  is  unmistakable,  what  objection  can  there  be  to  putting  it  into 
the  Constitution? 

Why,  they  tell  us  the  language  is  imperfect.  They  tell  us  we  have  come  in  here, 
and  we  have  even  amended  it  ourselves?  Well,  has  not  that  been  done  with  every 
report  that  has  been  before  the  Convention?  Have  not  the  chairmen  put  amend- 
ments in  them?  Has  not  the  Convention  put  amendment  after  amendment  upon 
every  article  which  has  been  submitted  to  the  Convention,  and  which  has  been 
adopted  and  put  into  the  new  Constitution?  Why  do  you  wish  to  apply  a  different 
rule  to  the  report  of  the  Committee  on  Corporations?  When  the  chairman  of  the 
committee  got  up  and  made  a  few  minor  amendments  so  as  to  make  it  conform  to 
the  opinions  of  some  of  the  opposition  on  immaterial  matters,  they  immediately 
said,  "Now,  look  here.  Don't  you  see?  Will  it  do  to  put  a  thing  like  that  in  the 
Constitution,  when  you  come  here  and  admit  it  is  a  thing  you  have  got  to  amend?" 
The  committee  has  done  everything  it  could  to  make  it  clear  and  proper,  and  it  is 
submitted  to  the  Convention  for  the  Convention  to  act  upon  it  and  to  amend  it  if  it 
needs  amendment,  and  to  put  it  in  final  and  proper  shape  to  go  into  the  Con^itu- 
tion.  That  is  what  we  are  serving  here  for,  to  examine  one  another's  work,  to  in- 
spect it,  to  see  if  the  language  conveys  our  meaning,  and  to  see  if  we  have  an  article 


2326  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

which  ought  to  go  into  the  Constitution;  but  we  are  told  all  the  time  and  continu- 
ally that  this  is  legislative  matters.  That  will  be  the  great  argument  of  the  gen- 
tleman from  Norfolk  city  (Mr.  Thom)  ;  and  I  want  him  to  answer  this  question 
when  he  comes  to  make  that  argument:  Is  there  not  plenty  of  legislation  in  the  suf- 
frage plan  of  the  majority  of  the  committee?  It  is  nearly  as  long  as  this  article  on 
corporations.  It  has  article  after  article  that  is  a  proper  subject  for  the  Legisla- 
ture, and  not  for  the  Constitution,  and  for  six  or  seven  months'  the  gentleman  from 
Norfolk  city  has  without  intermission  urged  the  adoption  of  that  suffrage  article, 
and  the  placing  of  it  in  the  Constitution. 

Can  he  be  heard  to  come  here  now  and  draw  a  hard  and  fast  line  between  con- 
stitutional and  legislative  matters?  Pick  up  that  majority  report  and  look  at  it. 
It  fixes  boards.  It  tells  you  what  those  boards  shall  do.  It  tells  you  what  sort  of 
reports  shall  be  made  to  the  auditor  about  the  capitation  tax,  what  the  clerks  shall 
do  in  regard  to  the  capitation  tax.  Three-fourths  of  the  articles  prepared  by  him- 
self and  others,  and  endorsed  and  advocated  by  them,  is  purely  legislative  in  char- 
acter and  legislative  in  form,  and  he  has  urged  its  adoption  for  six  or  seven  months; 
and  when  he  comes  to  speak  to  this  Convention  he  will  try  to  draw  a  hard  and  fast 
line  between  constitutional  and  legislative  matters. 

He  made  that  kind  of  a  point  when  he  voted  against  the  appropriation  in  the 
Constitution  of  $50,000  to  his  Alma  Mater,  the  University  of  Virginia.  He  said  he 
regretted  that  he  felt  compelled  to  vote  against  it,  and  he  believed  the  University 
would  continue  to  get  it  by  legislative  appropriation,  but  he  would  not  make  it  more 
useful  and  valuable  to  the  University  by  making  it  permanent  and  certain  by  putting 
it  into  the  Constitution.  Why?  Because  he  said,  "  Oh,  it  is  not  a  constitutional  meas- 
ure. I  am  going  to  draw  that  line  hard  and  fast,  and  stand  on  it."  Has  he  stood  on 
it  in  his  suffrage  plan?  Did  he  stand  on  it  when  he  advocated  on  this  floor  the  fixing 
of  the  salaries  of  the  Supreme  Court  and  of  the  circuit  judges?  That  is  purely  a 
legislative  matter. 

When  gentlemen  do  not  want  anything  in  the  Constitution,  if  they  have  no 
other  argument  to  make  against  it,  they  say  it  is  not  a  proper  subject  for  the  Con- 
stitution. What  excuse  will  the  gentleman  from  Norfolk  city  make  when  he  comes 
to  argue  on  the  point  I  have  made  about  his  suffrage  plan?  Oh,  he  will  say,  this 
is  a  great  question  afflicting  the  State.  We  were  sent  here  to  remedy  the  evils  of 
universal  suffrage.  We  were  sent  here  to  disfranchise  the  negro,  and  therefore  we 
must,  in  order  to  do  it,  put  legislative  matters  in  the  Constitution."  That  is  the 
way  he  will  talk  to  you.  I  say  to  him  that  this  thing  is  just  as  important  to  the 
people  of  our  section  as  is  the  suffrage  question.  The  great  white  sections  are  not 
bothered  with  negro  suffrage.  They  are  more  interested  in  financial  and  economi- 
cal matters.  They  are  more  interested  in  those  matters  than  they  are  in  the  suf- 
frage question.  They  say  this  is  a  great  measure,  demanding  the  attention  of  the 
Constitutional  Convention,  and  it  is  a  thing  which  should  go  in  the  Constitution. 

"Oh,"  they  say,  "you  ought  not  to  put  it  in  the  Constitution  because  things  may 
change."  Well,  we  know  that.  Things  may  change.  What  do  they  want  put  in  the 
Constitution?  They  say  you  must  put  in  it  that  a  man  is  entitled  to  his  life. 
That  is  a  mere  platitude.  I  know  I  am  entitled  to  my  life  without  its  being  in  the 
Constitution,  though  I  admit  it  is  proper  to  put  it  there.  They  say  you  must  put 
in  it  that  a  man  is  entitled  to  property.  Certainly  he  is,  if  he  is  fortunate  enough 
to  get  it  and  wise  enough  to  keep  it.  They  say  you  must  put  in  it  that  a  man  is 
entitled  to  the  pursuit  of  happiness.  Now  I  am  going  to  pursue  happiness,  whether 
you  put  it  in  the  Constitution  or  not.  (Laughter.) 

I  want  something  in  the  Constitution  other  than  platitudes.  I  want  something 
in  it  that  has  life  and  vitality  and  power  in  it.  That  is  what  I  want  in  the  Consti- 
tution. What  is  there  in  this  article  that  shows  it  should  not  go  into  the  Constitu- 
tion?   We  are  putting  here  in  the  Constitution  a  board  of  commissioners  to  control 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  23.27 

t 

-and  regulate  transportation  and  transmission  companies.  "Vv'e  have  a  right  to  do  it; 
it  is  to  our  interest  to  do  it;  and  what  change  in  the  future  can  alter  that  principle? 
You  may  have  wireless  telegraphy;  you  may  have  flying  machines.  They  may  be, 
In  the  future,  your  transmission  and  transportation  companies,  but  still  that  com- 
mission will  regulate  them:  and  vrhen  the  gentleman  from  Norfolk  city  (Mr.  Thom) 
in  the  future,  if  he  lives  long  enough  to  see  it,  mounts  into  a  balloon  to  go  from 
Hichmond  down  to  his  beautiful  city  by  the  sounding  sea,  this  commission  will  regu- 
late the  rate  that  is  charged  him  for  his  trip.  (Laughter.) 

The  gentleman  from  Roanoke  hangs  and  dwells  upon  that  point,  that  it  should 
net  go  into  the  Constitution.  How  does  he  know  whether  it  ought  to  go  in  the  Con- 
stitution or  not?  He  said  he  read  it  three  times  and  did  not  understand  it.  He  has 
made  the  best  argument  that  has  ever  been  made  in  this  Convention  against  putting 
the  understanding  clause  in  the  Constitution.  According  to  his  own  admission,  if 
we  put  it  there,  he  will  be  disfranchised.  (Laughter.)  I  am  opposed  to  disfranchis- 
ing as  good  a  man  as  Judge  Robertson,  of  Roanoke.  He  stated  he  read  it  three  times, 
and  he  did  not  understand  it.  Well,  the  Committee  on  Corporations  understands  it. 
The  majority  of  this  body  understands  it.  It  is  written  by  our  chairman  in  fine  old 
Anglo-Saxon  English,  equal  to  any  that  can  be  used  by  any  man  in  this  Convention. 
The  idea  in  it  are  expressed  so  clearly  and  positively,  and  are  made  so  plain,  that 
no  man  can  misunderstand  if  he  wants  to  understand;  but,  as  I  said  awhile  ago. 
there  is  no  man  so  blind  as  the  man  who  will  not  see,  and  no  man  so  deaf  as  the 
man  who  will  not  hear. 

The  gentleman  from  Roanoke  finally  began  to  make  an  argument  in  favor  of 
the  people.  Why,  he  said,  if  you  put  that  commission  in  the  Constitution  these  cor- 
porations may  buy  the  commission.  Well,  now,  I  do  not  know  whether  he  is  speak- 
ing for  the  corporations  he  represents.  I  represent  some,  and  I  know  they  are  not 
going  to  do  any  such  reprehensible  act  as  to  try  to  buy  the  commission.  That  argu- 
ment could  be  made  to  any  officer.  You  could  say  they  might  buy  the  Supreme  Court; 
that  they  might  buy  the  Governor.  We  hope  to  elect  men  that  they  cannot  buy  if 
they  should  feel  so  inclined.  We  have  in  this  Convention  one  hundred  men,  not  one 
of  whom  they  can  buy.  Then  if  we  have  such  a  body  of  men  as  this  assembled  in  the 
Commonwealth,  independent  in  their  character,  free  of  all  manner  of  corruption,  is 
it  to  be  said  we  cannot  elect  three  commissioners,  or  have  them  appointed  by  the 
Governor,  who  will  be  of  high  character,  and  who  are  above  price? 

All  the  points  made  by  these  gentlemen  were  made  by  Mr.  Edward  Baxter — I 
liave  his  speech  here — before  the  Committee  on  Corporations.  Every  one  of  the 
points  they  make  here  in  opposition  were  made  by  him.  and  their  arguments  here  are 
simply  a  repetition  in  substance  of  the  argument  made  by  him.  Just  after  he  had 
nade  his  speech,  you  know,  the  Convention  adjourned,  and  while  I  was  home  I  had 
d  peculiar  dream.  I  dreamed  I  was  in  the  city  of  Richmond,  and  I  walked  out  at 
night  over  the  Capitol  Square.  The  snow  was  on  the  ground  and  the  stars  shone 
beautifully  in  the  heavens.  It  was  at  midnight's  solemn  hour  when  grave-yards' 
yawn  and  ghosts  come  forth.  It  was  as  still  as  silence  itself.  All  at  once  I  heard  a 
great  noise  up  about  the  basement  of  the  Capitol.  I  went  up  there  to  see  what  it 
was,  and  I  looked  in  a  window  of  the  basement,  and,  in  the  blazing  splendor  of  the 
electric  light,  there  was  Judge  Baxter  training  the  two  gentlemen  from  Norfolk  (Mr. 
Thom  and  Judge  Brooke)  and  the  gentleman  from  Fauquier  (Mr.  Hunton),  and  the 
gentleman  from  Roanoke   (Judge  Robertson)   to  make  their  speeches,  (Laughter.) 

You  know  how  dreams  are.  Each  fellow  would  get  up  and  put  his  hands  down 
by  his  side,  and  make  his  little  speech,  and  then  Judge  Baxter  would  pat  him  on  the 
"head  and  say,  "Well  done."  (Laughter.)  The  elderly  gentleman  from  Norfolk  (Mr. 
Thom)  made  the  last  speech,  and  his  tones  were  measured  and  majestic  and  funereal. 
I  thought  he  was  preaching  a  funeral  of  the  nabobs  of  the  Transportation  and  Trans- 
mission Company.     (Laughter.)     I  said  to  myself  if  he  was  not  a  good  deal  older 


2328  DEBATES  OF  THE  CONSTITUTIONAL  CO?n^ENTION  OF  VIEGINIA.. 

than  I  am,  I  would  put  it  in  my  will  that  he  should  deliver  the  eulogy  on  me  after  I 
die.  (Laughter.) 

After  he  got  through,  it  ceased,  and  I  walked  away  for  fear  r  would  put  myself 
in  the  position  of  an  eavesdropper;  and  the  thing  tickled  me,  and  I  laughed,  and  my^ 
rollicksome  laughter  rolled  away  up  on  the  blue  pavement  of  the  skies  amidst  the 
pure  and  beautiful  stars,  and  it  woke  me  up,  and  I  was  at  home,  sweet  home,  taking: 
an  evening  nap.  I  got  up  and  looked  out  of  my  window,  and  there  nestled  the  sweet 
gem  city  of  the  great  Southwest  in  the  shadows  of  the  great  mountains. 

Now,  gentlemen,  I  do  not  believe  in  dreams,  not  at  all  (laughter);  but  the  old 
women  tell  me  that  dreams  sometimes  come  true.  I  see  where  Joseph  dreamed  in 
the  Bible,  and  his  dream  came  true.  Now,  three  of  those  gentlemen  have  spoken. 
They  made  exactly  the  same  speech  that  I  heard  them  make  before  Judge  Baxter  in 
my  dream.  (Laughter.)  If  the  next  and  last  gentleman  (Mr.  Thom)  makes  the 
same  speech  he  made  before  Judge  Baxter,  then  from  this  day  to  the  end  of  my  life 
I  will  be  a  believer  in  dreams.  (Laughter.) 

These  are  the  objections  they  have  made  to  the  article  on  corporations.  They 
say  it  ought  not  to  go  in  the  Constitution,  and  yet  two  of  them  (Mr.  Hunton  and 
Judge  Brooke)  come  right  along  and  offer  a  plan  establishing  a  commission,  pre- 
scribing the  duties  of  the  commission  and  asking  you  to  put  it  in  the  Constitution. 
These  two  men  certainly  admit,  and  I  suppose  the  others  will  agree  with  them — 
they  have  all  doubtless  had  conferences — that  such  a  thing  as  that  ought  to  be  put 
in  the  Constitution,  because  they  are  offering  you  a  similar  plan. 

Now,  that  does  av/ay  then  with  that  argument,  and  it  is  a  question  between  the 
two  plans.  It  is  true  Judge  Robertson  said  he  did  not  believe  in  either  plan.  He 
"Saw  the  fix  they  had  got  themselves  in  

Mr.  Robertson:  I  distinctly  deny  that  I  had  any  conference  with  anybody  on 
the  subject,  and  I  do  not  desire  to  be  put  in  the  position  of  having  formed  any  plans- 
about  this  matter  with  any  one.  I  spoke  for  myself,  and  myself  alone^  and  I  am  still 
opposed  to  both  plans. 

Mr.  Wysor:  Your  statement  is  evidently  true,  judging  from  the  speech  you- 
made  on  the  subject.  If  you  had  had  a  conference  you  would  have  made  a  better- 
speech.  (Laughter.) 

Mr.  Robertson:  Well,  you  take  back  what  you  said  about  Judge  Baxter,  then. 
I  did  not  get  it  from  him.  (Laughter.) 

Mr.  Wysor:  Now,  then,  they  come  forward  here,  and  they  offer  a  plan,  and  say 
that  it  ought  to  go  into  the  Constitution.  Well,  then,  is  it  not  a  question  of  the  merits- 
of  the  two  plans?  If  they  say  their  plan  ought  to  go  in  the  Constitution,  then  it  Is 
a  question  which  is  better,  ours  or  theirs.  The  gentlemen  who  signed  the  minority 
plan  have  been  obstructionists  of  this  measure  all  along.  They  do  not  want  anything 
in  the  Constitution,  and  if  they  get  their  plan  adopted,  they  will  accomplish  their 
wishes.  They  will  have  nothing  in  the  Constitution.  (Laughter.)  They  will  have 
worse  than  nothing  in  the  Constitution.  They  will  have  something  in  the  Constitu- 
tion that  does  not  do  any  good;  that  does  not  give  the  commission  any  power,  but 
will  be  constantly  bothering  the  Legislature  in  that  matter,  and  hampering  the  courts 
in  their  decisions. 

Why,  if  the  two  gentlemen  from  Norfolk  (Mr.  Thom  and  Judge  Brooke)  and  the 
gentleman  from  Fauquier  (Mr.  Hunton)  were  all  in  the  seventh  story  of  a  big  hotel 
on  fire,  and  there  was  a  fire  escape  as  rickety  as  this  minority  plan,  they  had  better 
stay  in  the  room,  and  not  attempt  to  go  down  on  it.  I  believe  those  three  gentlemen 
could  stand  fire,  anyhow.  It  is  said  that  Shadrach,  Meshac,  and  Abednego  could" 
stand  fire;  and  Thom  and  Brooke  and  Hunton,  I  stand  here  to  say,  are  just  as  good 
people  as  Shadrach,  Meshac,  and  Abednego.  (Laughter.) 

The  gentleman  from  Norfolk  city,  when  he  comes  to  close  the  debate  for  the  op- 
position, is  going  to  tell  you  that  we  are  going  to  bankrupt  the  corporations.    I  tol(£ 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIRCTXIA. 


2329 


some  of  mv  friends  on  one  occasion  that  he  was  certain  to  drive  a  hearse  through 
here  with  black  horses  to  it  and  black  plumes  on  their  heads.  He  is  the  best  director 
of  a  funeral  that  I  ever  saw,  when  he  gets  started.  (Great  laughter.)  He  says  we 
are  going  to  ruin  the  prosperity  of  the  State,  going  to  destroy  all  of  its  corporations, 
private  corporations,  and  all  its  transportation  and  transmission  companies. 

Now,  the  gentleman  (Mr.  Thcml,  I  think,  will  draw  largely  on  his  imagination. 
I  want  to  get  him  out  of  that.  We  intend  to  make  them  prosper  and  grow  and  flour- 
ish, That  is  the  object  of  this  commission,  and  after  it  has  been  put  in  the  Consti- 
tution and  been  in  effect  for  a  year  or  two,  the  gentleman  from  Norfolk  (Mr.  Thom) 
will  just  walk  out  cf  his  office  down  there  in  his  beautiful  city  by  the  sea,  and  just 
look  up  the  railroad,  he  will  see  a  great  big  engine 

"Comin'  round  the  curve. 
A  puffin-'  and  a  tcotin' 
And  a  strainin'  every  nerve." 

(Laughter.) 

I  stand  here  to  tell  the  opposition  that  the  old  State  is  going  to  flourish  under 
this  article,  which  I  say  will  be  an  ornament  to  the  Constitution.  I  expect  we  will 
get  it  through  about  the  spring-time,  in  the  sweet  spring-time,  when  the  squirrels 
make  love  to  one  another  in  the  Capitol  Square,  when  the  honey  bee  sips  the  red 
clover,  and  the  humming  bird  gracefully  swings  o'er  swaying  flowers :  when  "  a 
brighter  crimson  comes  upon  the  robin's  breast."'  vrhen  the  wanton  lapwing  gets 
himself  another  nest,"  when  "a  livelier  iris  changes  on  the  burnish'd  dove";  when 
•'■  a  young  man's  fancy  lightly  turns  to  thoughts  of  love."  when  old  A'irginia.  like  the 
budding,  promising  spring,  will  take  on  a  new  lease  of  life,  and  light  and  hope,  and 
love. 

And  I  tell  you  what  we  are  going  to  do  vhen  we  get  the  article  passed.  We  are 
going  to  get  one  of  the  handsomest  and  most  beautiful  vomen  in  Richmond,  with  long 
black  eyelashes  daughter)  and  golden  tresses,  and  with  an  eye  that  gleams  and 
sparkles  and  flashes  and  glows  and  scintillates,  and  shames  the  very  stars  with 
brightness,  and  we  are  going  to  array  her  in  all  the  colors  of  the  sun,  and  we  intend 
to  get  a  crown  full  of  opals  and  pearls  and  all  manner  of  precious  stones,  and  we 
are  going  to  write  upon  that  crown,  in  front  of  it,  '"'Virginia."  Then  we  are  going 
to  have  a  throne  wreathed  in  honeysuckles  and  every  variety  of  sweet-scented  flowers^ 
upon  which  we  are  going  to  crown  her,  and  along  her  pathway  to  the  throne  will  be 
garlands  of  flowers,  and  little  children  on  either  side  with  happy,  smiling  faces.  In 
this  representative  way  we  are  going  to  crown  old  Virginia  ''Queen  of  the  May,  boys, 
Queen  of  the  May." 

Thank  you  for  your  attention,     (Great  applause.) 

Mr.  Hamilton:  Mr.  Chairman  and  gentlemen,  I  trust  I  may  be  permitted  to 
stand  away  from  my  seat,  contrary  to  the  rules,  as  I  am  hoarse,  and  have  been  for 
some  weeks.  I  regret  that  I  cannot  interest  and  amuse  the  members  of  the  committee 
as  the  charming  gentleman  who  has  just  taken  his  seat.  To  me  the  question  is  rather 
too  serious  and  dangerous  in  its  possible  outcome  to  indulge  in  the  humor  which 
attracts  us  all., 

I  do  not  propose.  Mr.  Chairman,  to  argue  this  matter  upon  fundamental  prin- 
ciples further.  I  think  that  has  been  so  fully  done  by  the  gentlemen  opposed  to  the 
report  of  the  majority  that  I  shall  have  little  to  say  on  the  subject.  I  feel  that  it  is 
not  proper  to  attempt  to  put  in  a  Constitution,  in  detail,  certainly,  any  provision  of 
this  kind.  I  feel  that  the  attempt  to  do  so  is  so  full  of  danger  that  it  is  one  from 
which  the  ablest  and  mcst  reckless  man  should  shrink;  but  after  hearing  the  state- 
ment upon  that  point  made  by  the  gentleman  from  Roanoke  (Mr.  Robertson),  so  clear 
and  forcible  that  I  do  net  see  how  a  word  of  clearness  or  strength  could  have  been 
added  to  it,  clear  and  forcible  to  a  point  which  I  have  never  known  surpassed,  and 
147— Lonsr.  L^eb. 


2330  DEBATES  OF  THE  CONSTITUTIOJTAL  CONVENTION"  OF  VIRGINIA. 

rarely,  if  ever,  equalled,  I  do  not  think  it  would  be  right  or  just  in  me  to  take  any 
of  the  time  of  this  body  in  going  over  that  point.  If  these  gentlemen  who  think 
differently  are  not  influenced  by  what  he  said  so  clearly  and  so  strongly,  then  they 
would  not  be  influenced  by  even  one  who  came  from  the  dead. 

Now,  Mr.  Chairman,  I  think,  and  through  all  my  life  I  have  acted  on  that 
hypothesis,  that  when  a  man  is  addressing  a  body  of  people  it  is  but  fair  that  they 
should  know  his  relations  to  the  subject  matter  of  discussion.  No  matter  how  high 
a  man  he  is,  he  may  unconsciously,  and  doubtless  often  is,  biased  somewhat  by  his 
relations  to  the  subject  matter  with  respect  to  which  he  is  talking.  I  do  not  doubt 
for  a  moment  that  many  of  the  gentlemen  who  preceded  me  on  both  sides  of  this 
question,  unconsciously  to  themselves,  have  bias  with  respect  to  it.  I  do  not  doubt 
that  the  accomplished  and  able  chairman  of  the  committee  is  unconsciously  strongly 
biased;  and,  judging  by  what  I  regret  to  feel  called  upon  to  call  the  bitterness  of 
some  of  the  speakers  in  favor  of  the  majority  report,  it  is  obvious  that  they  are 
biased. 

I  am  connected  with  a  railroad.  For  some  years  I  have  been  the  counsel  of  a 
railroad,  and  for  some  years  I  have  been  one  of  its  vice-presidents.  To  that  extent 
you  must  know  that  I  may  be  unconsciously  biased.  I  do  not  think  I  am.  That  is, 
I  am  not  conscious  of  it;  and  when  my  people  sent  me  here  without  a  pledge  and 
without  a  voice  in  opposition,  of  either  race,  they  nevertheless  felt  confidence  in  me, 
and  felt  that  I  would  judge  of  questions  fairly  and  right  to  the  best  of  my  ability. 

With  that  statement,  showing  you  as  far  as  I  may  without  bad  taste  my  relation 
to  the  subject,  I  propose  to  consider  it  somewhat  upon  its  merits. 

If  this  Convention  is  going  to  put  in  the  Constitution  what  is  called  a  corpora- 
tion commission  article — and  I  think  it  is  probable  it  is  going  to  do  so,  although  I 
think  it  should  not  do  so  with  any  detail — I  can  see  no  objection  whatever  to  some- 
thing going  in  the  Constitution  of  Virginia  like  the  provision  in  the  Georgia  Consti- 
tution, which  is  mandatory  upon  the  Legislature,  and  which  will  cure  and  cover  the 
alleged  reasons  for  all  this  criticism  of  the  Legislature  which  means  and  says  that 
the  Legislature  will  not  do  what  some  of  you  say  the  people  want.  I  do  not  unite  in 
that.  I  think  the  whole  demand  to  put  anything  in  this  Constitution  on  the  subject 
of  a  corporation  commission  is  absolutely  and  undoubtedly  based  and  founded  upon 
an  admitted  distrust  of  the  Legislature,  based  wholly  upon  the  theory  that  popular 
government  in  Virginia  is  a  failure. 

There  can  be  no  question  about  that.  Gentlemen  here  of  great  ability  and  great 
sincerity  openly  say  they  are  opposed  to  putting  statutes  in  a  Constitution,  but  in 
this  respect  they  will  do  it  because  they  say  they  cannot  get  the  relief  which  they 
think  they  ought  to  have  from  the  Legislature.  No  one  denies  it  on  the  side  of  the 
gentlemen  favoring  the  corporation  report,  because  I  have  never  heard  questioned 
the  power  of  the  Legislature  to  put  in  the  law  a  corporation  commission  with  proper 
provisions  as  to  its  pov/ers,  until  questioned  by  the  learned  gentleman  who  has  just 
taken  his  seat,  and  he  merely  made  it  as  a  suggestion. 

I  say  if  you  are  not  willing  to  trust  your  legislative  body,  if  you  have  no  faith 
in  popular  representative  government,  if  you  vote  that  to  be  a  failure,  and  if  you 
say  that  we  who  have  come  here  practically,  so  far  as  the  people  are  concerned,  I 
think  to  do  but  one  thing,  to  rearrange  the  suffrage  matter  of  the  State;  if  we,  by  a 
fluke,  by  a  chance,  an  accident,  have  come  here  and  have  gotten  into  ourselves 
supreme  power  which  we  will  never  get  again,  I  am  sure,  is  it  the  idea,  and  I  think 
it  is,  of  the  majority,  that  we  should  take  advantage  of  this  opportunity  when  the 
people  have  sent  us  here  to  do  one  thing,  to  do  something  which  the  people  them- 
selves have  declined  to  do,  so  far  as  we  can  judge  by  the  action  of  their  representa- 
tives, for  many  years. 

In  other  words,  we  are  the  people,  we  are  the  representatives  of  all  sovereignty 
and   all   wisdom;    and   although   the   people  have  not  considered  this  thing  at  all; 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2331 

although  it  is  fraught  with  danger  to  the  people,  although  their  representatives  have 
been  unwilling  to  incur  that  danger,  even  under  the  form  of  a  statute,  which  can  be 
changed,  we,  forsooth,  must  take  advantage  of  our  position  to  put  in  the  Constitution 
not  only  a  principle  that  a  proper  corporation  law  shall  be  passed  by  the  Legislature, 
not  only  the  mandate  that  that  shall  be  done,  which  we  have  a  perfect  right  to  do, 
as  v>^as  done  in  Georgia,  but  that  we  shall  put  in  the  Constitution  an  article  twenty- 
six  printed  pages  long,  I  believe  it  is — longer  I  believe  than  the  whole  of  our  present 
Constitution,  full  of  details,  full  of  danger,  full  of  the  necessities  for  change  as  Boon 
as  experience  demonstrates  how  it  will  not  work. 

Now,  feeling  that  there  is  danger  of  such  a  dangerous  article  going  In  this  Con- 
stitution, I  wish  to  address  myself  to  the  form  of  the  article,  and  to  endeavor  to 
point  out  some  dangers  which  I  think  are  apparent  upon  its  face,  in  the  hope  that 
if  we  do  a  wrong  thing,  if  we  do  put  in  the  Constitution  a  lengthy  statute,  full  of 
detail,  we  will  make  it  as  nearly  perfect  as  pos^ble  when  it  goes  there. 

I  have  heard  all  of  the  debate — I  do  not  mean  every  word  of  it,  but  I  have  heard 
almost  all  of  the  debate — on  this  subject.  I  have  heard  scarcely  anything  urged,  if 
anything  at  all — I  do  not  think  I  recollect  but  two  allusions  by  gentlemen  favoring 
the  majority  report — to  any  need  for  a  corporation  commission,  or  for  this  article, 
except  on  the  ground  of  cariff  rates,  of  freight  and  passengers  on  railroads,  and 
chiefly  on  freight,  I  do  not  think  I  have  heard  any  complaint  as  to  passengers.  I 
most  carefully  listened  to  the  exposition  of  this  subject  by  the  chairman  and  by  all 
those  who  followed  him.  I  heard  the  learned  and  able  gentleman  from  Danville 
speak  for  something  like  four  hours  on  this  question,  and  he  is  presumed  to  be  well 
informed  and  advised  on  the  other  side.  I  do  not  think  I  heard  from  him  anything, 
except  possibly  a  slight  allusion  without  any  illustration,  as  to  the  need  of  this 
thing  except  that  a  commission  should  exist  to  fix  rates  of  charges  for  the  trans- 
portation of  goods  and  people.  Indeed,  I  may  say  that  the  gentleman  from  North- 
ampton (Mr.  Kendall),  who  is  one  of  the  most  able  and  eloquent  of  the  speakers  for 
the  majority  report,  stated  in  his  argument,  Mr.  Chairman,  the  following,  showing 
that  my  analysis  of  these  argument  and  of  the  need  for  this  action  is  correct.  The 
gentleman  from  Northampton,  in  speaking  in  reply  to  some  question,  used  this  lan- 
guage: 

These  gentlemen  say  we  may  put  something  in  here  that  is  wrong,  that  we  can- 
not see  into  the  future;  but,  gentlemen,  the  only  thing  we  have  really  put  in  it, 
although  we  have  elaborated  it  to  a  considerable  extent  in  this  Constitution,  is  that 
this  commission  shall  have  the  power  to  fix  rates.    Is  that  a  debatable  question? 

And  again: 

This  power  to  fix  rates  is  a  great  public  necessity,  and  I  say  there  is  nothing  in 
this  provision  of  ours  that  these  gentlemen  can  object  to,  or  do  object  to,  as  I  under- 
stand them,  except  the  provision  to  fix  rates. 

In  other  words,  the  whole  tenor  of  the  argument  of  the  gentleman  favoring  the 
majority  report  is  that  there  is  a  necessity  for  somebody  to  regulate  and  fix  rates, 
but  no  necessity  for  anything  else.  If  I  am  right  about  that,  Mr.  Chairman,  then 
why  all  the  residue  of  this  report  with  what  seems  to  me  many  dangerous  powers? 

If  that  is  all  that  is  needed,  if  there  is  any  cry  even  for  that,  which  I  do  not 
believe— but  I  am  taking  that  as  the  statement  of  the  gentleman  advocating  the 
majority  view— why  then  not  confine  this  report  and  the  powers  of  this  commission 
to  the  fixing  and  making  of  rates  and  not  risk  the  danger  of  other  things?  The 
gentleman  from  Northampton  said  he  did  not  think  anything  else  was  objected  to. 
For  myself,  and  I  speak  only  for  myself,  I  object  to  the  residue  of  it  very  much 
more  than  I  do  to  the  rate-making  power.  There  may  he  some  occasion  for  it,  and 
I  would  not  undertake  to  deny  it.  I  do  not  think  it  should  go  in  the  Constitution 
in  detail,  but  I  believe  that  in  some  instances  injustice  has  been  done.    I  believe  it  is 


2332 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


proper  that  there  should  be  some  fair  and  just  and  well  constituted  tribunal  to  over- 
look such  matters,  with  its  powers  properly  defined;  but  I  do  not  believe  that  that 
tribunal  should  be  a  tribunal  practically  of  arbitrary  and  undefined  powers,  and  a 
tribunal  with  the  powers  of  prosecutor,  judge  and  legislator  combined. 

I  do  not  believe,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  there  is 
any  real  complaint,  anything  approaching  a  reasonably  general  complaint,  of  anything 
even  connected  with  the  rates  for  freight,  so  far  as  the  justice  and  reasonableness 
of  those  rates  themselves  are  concerned.  As  I  said,  although  I  have  been  connected 
with  one  of  the  railway  systems  of  Virginia  for  years,  with  some  executive  duties  to 
perform  as  well  as  some  duties  of  counsel,  I  have  not  heard  in  all  of  this  discussion 
a  single  word  of  criticism  with  respect  to  rates  or  anything  else  of  any  railroad  com- 
pany except  the  Chesapeake  and  Ohio,  the  Norfolk  and  Western  and  the  Southern. 
With  respect  to  those  rates,  so  far  as  my  recollection  serves  me,  there  were  one  or 
two  sporadic  charges  of  complaints  made  against  the  eastern  and  western  lines  of 
the  Chesapeake  and  Ohio  and  the  Southern,  things  which  might  happen  most  inno- 
cently, certainly  not  necessarily  intentionally,  in  the  management  of  any  large  piece 
of  property,  matters  which,  in  my  judgment,  should  have  been  corrected  promptly 
when  attention  was  called  to  them.  With  respect  to  the  other  road,  the  Southern. 
I  have  heard  nothing  in  complaint  of  it  except  what  we  may  call  the  Danville  case. 

Now,  gentlemen,  I  am  not  prepared  to  express  a  judgment  on  the  Danville  case. 
I  do  not  think  any  of  us  can  form  a  judgment  on  a  particular  case  and  on  a  particu- 
lar state  of  facts,  especially  one  under  litigation,  one  which  is  in  the  courts,  one 
which  has  been  bitterly  contested  and  fought,  when  we  have  heard  only  one  side  of 
the  question.  I  will  say,  very  frankly,  that  my  impression  is  that  Danville  has  not 
been  as  well  treated  as  she  should  have  been.  I  may  be  wrong  in  that  impression, 
but  it  seems  to  me  she  has  not  been  as  w^ell  treated  as  she  should  have  been,  or  that 
her  situation  is  a  very  peculiarly  unfortunate  one. 

And,  gentlemen,  if  you  think  about  it,  the  complaint  there  is  not  that  the  rates 
that  Danville  has  are  not  in  themselves  just  and  reasonable.  I  know  from  one  of 
the  representatives  of  the  city  of  Danville,  a  man  of  the  highest  information  and 
character,  that  they  do  not  complain  of  the  actual  amounts  of  freight  charges  to  and 
from  their  place.  What  they  complain  of  is  what  they  call  the  discrimination 
against  Danville  as  compared  with  other  rival  cities  seeking  the  same  trade  and  busi- 
ness, and  it  is  in  that  respect  that  I  feel  I  have  the  impression  that  Danville  has  not 
had  justice  done  to  her.  I  may  be  wrong.  I  would  not  give  a  judgment,  if  I  had 
the  power  to  do  so,  without  hearing  the  other  side;  but  that  is  my  impression.  I 
mean  to  say,  though,  that  there  is  practically  no  complaint  in  Virginia  as  to  the 
justice  and  reasonableness  of  the  actual  amounts  of  rates  charged  for  the  service 
rendered;  and  the  Interstate  Commerce  Commission  say  that  is  the  case.  Reading 
now  from  the  speech  of  one  of  the  gentlemen  who  has  preceded  me,  and  he  quoted 
from  the  Interstate  Commerce  Commission,  the  Hon.  Martin  A.  Knapp,  chairman  of 
the  commission,  said  this:  "In  the  first  place,  as  Senator  Elkins  says,  the  question 
of  excessive  rates;  that  is  to  say,  railroad  charges,  which,  in  and  of  themselves,  are 
extortionate,  is  pretty  nearly  an  obsolete  question.  I  would  not  affirm  that  there  are 
no  such  rates,  yet,  broadly  speaking,  there  are  not  many  such.  Those  are  not  the 
rates  of  which  the  public  complain.  The  discriminating  practices,  which  are  accom- 
plished either  by  a  compliance  with  the  present  law  or  in  disregard  of  it,  are  things 
which  really  affect  the  public  interest." 

And  so  it  is  here.  There  was  not  a  word  of  complaint  made  by  the  learned 
gentleman  who  argued  the  Danville  case  before  us,  as  I  understood  it,  of  the  inherent 
unreasonableness  of  the  rates  charged  there;  but  he  said,  and  it  seemed  to  me  with 
great  force  and  justice,  hearing  only  one  side,  that  he  did  not  think  it  was  right  and 
fair  that  Lynchburg  should  have  the  advantage  in  rates  over  Danville  when  the  stuff 
went  to  Lynchburg  through  Danville  and  Lynchburg  was  further;    and,  although 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2333 

lie  did  not  say  it,  I  presume  he  meant  the  same  thing  as  to  South  Boston.  It  is  the 
discriminations  that  they  object  to.  It  is  the  putting  one  community  in  an  unfair 
position,  as  to  do  business  and  as  to  making  a  living,  compared  with  another  com- 
munity, when  the  same  transportation  line  serves  both  communities,  and  putting 
the  one  farthest  and  less  advantageously  located,  so  far  as  that  transportation  line 
is  concerned,  in  the  position  of  vantage.  That  is  what  is  objected  to.  Now,  gentle- 
men, on  that  point  I  think  you  will  see,  if  you  have  not  already  seen — I  think  you 
must  have  seen — that  almost  the  whole  of  that  contention,  the  whole  of  it,  I  may 
say,  is  based  upon  matters  and  things  with  respect  to  which  a  corporation  commis- 
sion in  the  State  of  Virginia  would  have  absolutely  no  power  growing  out  of  inter- 
state conditions. 

The  volume  of  business  done  in  Virginia  which  .is  purely  intrastate,  and  with 
which  only  a  railroad  commission  in  Virginia  could  deal,  a  rate  making  commission, 
is  very  small.  I  do  not  know  what  it  is  on  other  roads,  but  on  the  Atlantic  Coast 
Line  it  is  only  3  1-2  per  cent,  of  the  total  business  of  that  line  done  in  the  State.  I 
mean  it  is  quite  small  with  others.  I  do  not  mean  business  starting  here  and  going 
elsewhere  out  of  the  State,  or  originating  somewhere  else  and  coming  here,  but  busi- 
ness that  starts  in  this  State  and  stops  in  this  State;  and  that  is  the  only  business 
about  which  you  have  the  jurisdiction  or  authority  to  erect  any  court.  , 

If  I  understood  the  gentleman  from  Danville,  and  I  do  not  know  clearly  whether 
I  do  or  not,  I  had  the  impression  that  he  argued  merely  this  interstate  question  to 
show  that  a  road  that  would  not  do  right,  as  he  looked  upon  it,  in  interstate  matters 
would  do  wrong  in  purely  local  matters.  I  do  not  think  that  argument  was  as  strong 
as  it  should  have  been  to  carry  conviction  to  an  audience  or  to  a  court,  but  I  think 
I  understood  the  gentleman  to  say  that  there  was  actual  discrimination  in  local  rates 
in  and  around '  his  town  as  compared  with  Lynchburg  certainly,  and  possibly  other 
places.  If  that  is  the  case,  certainly  he  should  have  some  tribunal  to  which  to  go  to 
correct  such  a  trouble  or  difRculty.  If  he  has  not  one.  he  ought  to  have  one.  The 
people,  whenever  such  discrimination  or  injustice  exists,  ought  to  have  a  court  to 
which  they  can  resort  to  correct  it. 

I  have  never  had  any  question  with  respect  to  rates  or  tariff  before  any  of  these 
commissions,  or  before  any  of  these  boards.  The  road  with  which  I  have  been  con- 
nected has  been  so  fortunate  as  never  to  have  had,  I  believe,  but  one  controversy  of 
that  nature,  and  that,  amusingly  in  this  connection,  was  when  the  city  of  Wilming- 
ton, North  Carolina,  bitterly  complained  that  Greensboro,  Salisbury,  and  Danville 
had  the  better  of  Wilmington  in  rates.  Wilmington  felt  that  she  ought  to  be  put  on 
as  good  a  basis  as  Danville  and  the  cities  of  western  Carolina,  and  that  was  before 
the  Interstate  Commerce  Commission. 

The  fact  is,  gentlemen,  the  question  of  rates  and  charges  for  transportation,  if  I 
understand  it — I  know  I  understand  very  little  about  it  indeed — is  one  that  is  so 
complicated,  so  interwoven  with  conditions  with  respect  to  location,  with  respect  to 
products  to  be  handled,  with  respect  to  the  points  where  the  people  trade,  the  kind 
of  business  done  in  this,  that  or  the  other  city,  and  whether  it  has  a  rival  some- 
where else  that  works  in  the  same  territory  for  that  business,  that  I  do  not  believe 
that  any  absolute  hard  and  fast  rule  can  be  laid  down  which  will  not  operate  greatly 
to  the  trouble  of  somebody  or  community. 

For  instance,  I  have  received,  and  I  suppose  other  members  have  received  them, 
great  numbers  of  resolutions  passed  by  Chambers  of  Commerce  in  Virginia,  asking 
me  first  to  vote  for  what  was  called  the  Withers  bill,  which  they  had  never  read  or 
seen,  I  am  sure,  and  then  successively  asking  me  to  vote  for  everything  else  that  was 
put  up  by  the  Corporations  Committee,  including  that  first  report,  which  is  spoken  of 
now  as  having  been  tentative,  and  the  greater  portion  of  which  was  abandoned  after 
argument  with  respect  to  private  corporations. 

Mr.  Braxton:    He  has  referred  to  the  first  report  of  the  committee.    There  never 


2334  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

was  but  one  report.  The  paper  he  refers  to  was  published  by  the  newspapers,  but 
it  was  not  a  report  made  by  the  committee. 

Mr.  Hamilton:     I  understood  its  publication  was  authorized. 

Mr.  Braxton:  As  a  matter  pending  before  the  committee.  It  was  authorized 
to  be  published  as  a  matter  pending  before  the  committee. 

Mr.  Thom:  If  the  gentleman  from  Petersburg  will  permit  me,  I  should  like  to 
ask  the  gentleman  from  Staunton  (Mr.  Braxton)  if  at  that  time  the  paper  was  not 
favored  by  the  committee? 

Mr.  Braxton:    I  cannot  say  it  was. 

Mr.  Thom:    Was  it  not  favored  by  the  chairman  and  prepared  by  the  chairman? 

Mr.  Braxton:  It  was  prepared  by  the  chairman  and  considered  by  the  chair- 
man, but  it  never  was  in  such  condition  as  that  the  chairman  was  ready  to  make  it 
as  a  report;  and  even  those  gentlemen  who  voted  for  it,  many  of  them,  voted  for  it 
as  a  tentative  article,  and  repeatedly  stated  at  the  time  that  they  were  not  prepared 
to  vote  for  it  as  a  final  article;  and,  although  the  chairman  at  the  time  did  favor  the 
general  proposition,  it  was  not  then  in  a  shape  in  which,  so  far  as  I  know,  any 
member  was  ready  to  vote  on  it  as  a  final  report. 

Mr.  Hamilton:  Mr.  Chairman,  I  was  referring  to  a  paper  published,  and  I 
understood  the  chairman  in  his  opening  remarks,  in  presenting  this  subject  to  us,  to 
say  it  was  not  published  as  the  adopted  report  of  the  committee,  but  that  it  had  been 
tentatively  adopted,  if  I  may  so  express  it,  and  that  it  was  published  for  the  purpose 
of  eliciting  the  criticism  and  the  comm.ents  of  the  public  with  respect  to  it,  and  I 
presume  with  the  proper  view  of  aiding  the  committee  in  reaching  a  final  just  con- 
clusion. 

Mr.  Kunton:  I  think  my  friend  is  in  error  there.  I  do  not  think  there  was  ever 
any  publication  with  a  view  to  bringing  about  a  hearing.  The  only  way  in  v/hich 
the  hearing  was  brought  about  was  by  a  letter  from  certain  business  men  in  the 
city  of  Richmond  asking  to  be  heard. 

Mr.  Braxton:  My  friend  from  Fauquier  (Mr.  Hunton)  is  certainly  in  error.  I 
wish  to  say  that  on  several  occasions  the  chairman  of  the  committee  took  occasion, 
when  the  committee  was  in  session,  to  say  that  he  hoped  all  corporations  or  men 
interested  in  any  matter  pending  or  likely  to  come  before  the  corporation  committee 
would  present  their  views  to  the  committee,  and  finally,  when  it  was  agreed  that  these 
matters,  pending  in  the  shape  in  which  they  then  were,  could  be  published,  it  was 
for  the  purpose  of  eliciting  public  criticism  on  them,  and  there  has  never  been  a  time 
known  to  me  when  I  have  not,  and  the  committee,  as  far  as  I  know,  have  not,  invited 
public  criticism  and  been  ready  and  anxious  to  accord  hearings  to  any  persons  who 
desired  to  be  heard  before  that  committee. 

Mr.  Hunton:  My  recollection  is  very  different  from  that  of  the  chairman  of  the 
committee.  My  recollection  is  that  there  was  nothing  ever  said  about  a  hearing 
until  certain  business  men  of  Richmond  addressed  a  communication  to  the  gentleman 
from  Manchester  (Mr.  Ingram)  and  requested  that  there  might  be  a  hearing.  After 
that  hearing  was  granted  the  position  of  the  committee  was  in  favor  of  giving  hear- 
ings. Prior  to  that,  my  recollection  is  that  the  whole  purpose  of  the  committee  was 
against  giving  hearings. 

Mr.  Hamilton:  Mr.  Chairman,  if  I  may  be  permitted  to  proceed,  I  think  I  may 
say  there  was  a  paper — I  do  not  know  whether  it  was  published  or  not;  I  think  I 
heard  it  was  published,  but  I  had  a  typewritten  copy  of  it  given  to  me,  and  I  was 
told  it  was  the  report  of  the  Committee  on  Corporations — and  as  to  one  section  of  it, 
or  something  of  that  kind,  there  were  some  reservations  as  to  future  consideration. 
At  any  rate,  that  was  the  paper,  or  a  copy  of  what  other  people  saw,  Which  aroused 
the  very  active  feeling  and  strong  antagonism  of  almost  all  the  business  people  of 
Virginia  with  respect  to  all  the  corporations  except  what  were  called  the  railroad 
corporation.    Those  people  came  here  and  they  had  hearings.    They  had  more  than 


DZBATES  OF  THE  COXSTIirilOXAL  COXVZXTIOX  OP  TIEGIXIA. 


2335 


one  hearing.  They  certainly  had  two;  and  after  those  hearings  the  most  of  that 
portion  of  the  report  disappeared.  Wh.ether  it  was  due  to  the  hearings  or  not  I  do 
not  know.  I  suppose  so.  It  looked  like  it:  hut..  Mr.  Chairman,  I  think  I  was  saying 
there  is  no  demand  in  Virginia  for  anything  connected  with  the  control  of  railroads, 
because  that  is  really  what  you  are  after  here,  as  I  understand  it,  on  any  point, 
except  to  have  somebody  to  say  what  is  a  reasonable  rate,  and  to  prevent  discrimi- 
nation. 

As  to  the  first  point,  what  is  a  reasonable  rate,  I  ?ay  there  is  really  no  demand 
for  action,  and  that  is  shown  by  what  I  have  read  from  the  Interstate  Commerce 
Commission's  report.  It  is  shown  by  the  facts  known  to  us  all.  There  has  not  been 
a  suggestion  made  by  any  gentleman  of  this  body  that  the  actual  rate  charged  any- 
where in  the  State  by  any  road  was  unjust  or  unreasonable.  Tke  whole  complaints 
have  been  that  there  has  been  discrimination. 

Taking  that  view,  Mr.  Chairman,  tliat  there  should  be,  if  there  does  not  exist 
nov%-,  a  tribunal  in  Virginia  to  correct  such  discrimination,  I  believe,  and  I  have 
heard  it  stated  by  a  man  who  had  looked  into  the  q.uestion,  and  who  had  troubles 
about  discrimination  in  his  section,  and  who  is  a  lawyer  of  great  ability,  that  the 
existing  statute  law  is  amply  ^jfficient  to  give  that  relief,  but  if  it  is  not,  we  ought 
to  have  it  in  the  shape  of  a  court  or  a  statute  or  a  commission,  or  something.  But 
it  does  not  follow  from  that  we  .should  put  it  in  the  Constitution,  and  put  the 
details  of  it  in  the  Constitution;  and  there  is  no  claim  for  anything  else.  Why  on 
earth  we  should  have  in  this  article,  under  the  existing  conditions,  anything  with 
respect  to  regulating  and  controlling  corporations,  other  than  fixing  and  regulating 
and  supervising  their  rates.  I  am  at  a  loss  to  see.  No  argument  and  no  statement  of 
facts  have  been  put  in  here  to  justify  it. 

Mr.  Chairman,  if  it  is  desired,  if  it  is  insisted  upon,  that  something  shall  go 
in  the  Constitution  about  this  matter,  take  the  Georgia  provision.  I  do  not  know  that 
I  am  altogether  favorable  to  the  minority  article.  I  think  the  reasons  for  the  minority 
article  given  in  the  minority  report  are  stronger  than  the  article,  but  I  think  there  is  enough 
in  the  article  to  give  the  relief  asked  for.  The  chief  difference  between  that  and  the  present 
law,  as  I  understand  it,  is  first  that  it  expresses  in  so  many  words  that  the  rates  shall  be 
reasonable  and  just,  and  it  expresses  in  so  many  words  that  there  shall-  not  be  dis- 
crimination, and  it  embraces,  furthermore,  what  never  existed  in  the  law  heretofore, 
the  Mason  bill,  as  it  is  called,  or  any  other,  the  absolute  right  of  a  railroad  commis- 
sion or  commissioner  to  investigate  these  matters,  to  hear  complaints,  and  to  take 
those  complaints  into  the  courts  with  all  the  legal  power  and  with  all  the  money  of 
the  Commonwealth  behind  that  complaint,  to  rectify  the  wrong  if  it  exists,  and  not 
at  the  expense  of  the  shipper.  In  my  judgment,  that  is  sufficient,  and  it  is  sufficient 
in  the'judgment  of  one  of  the  ablest  lawyers  I  know  of  in  this  body,  who  has  ex- 
amined this  matter  before,  and  whose  interests  were  not  towards  the  railroads  at  the- 
time.    He  thought  there  was  law  enough  in  the  law  as  it  exists  now. 

But  if  that  is  not  enough,  do  not  put  in  your  Constitution  twenty-six  or  thirty" 
pages  of  detail,  which  all  of  us  find  it  difficult  to  understand,  even  if  the  gentleman 
from  Pulaski  (Mr.  Wysor)  and  the  majority  do  understand  it  so  thoroughly.  I  do 
not  think  they  do  understand  it  as  thoroughly  as  they  think.  I  have  talked  with  the- 
learned  chairman  of  this  committee  before  this  matter  came  before  the  Convention, 
and  he.  with  a  frankness  which  has  always  characterized  him,  has  admitted  that 
certain  suggestions  with  respect  to  the  meaning  of  the  paper  needed  improvement, 
needed  clearing.  I  do  not  think  any  man  or  any  committee  can  draw  a  paper  of 
that  length  which  cannot  be  improved  upon  consideration. 

Now,  Mr.  Chairman,  the  Georgia  Constitution,  as  I  understand  it— I  have  not 
it  before  me — in  substance  says  that  the  Legislature  shall  make  a  corporation  com- 
mission; that  this  corporation  commission  shall  be  granted  the  right  to  fix  rates, 
and  there  shall  be  certain  rights  of  appeal  from  them,  and  so  on.    It  gives^  ail  the- 


233G  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

relief  necessary.  We  have  had  Georgia  referred  to  here  as  the  most  prosperous 
State  of  the  South.  It  is  the  most  prosperous  of  the  Atlantic  States  of  the  South, 
more  prosperous  than  any  other  State  in  the  South  except  Texas.  It  has  made  more 
advance  since  the  war  than  any  other  State  in  the  South  except  Texas;  and  v/hy 
should  we  go  beyond  Georgia?  I  believe  they  call  it  the  Empire  State  of  the  South. 
This  is  an  attempt,  in  my  judgment — laugh  at  it  as  much  as  you  please — to  practically 
put  your  hand  upon  the  throat  of  enterprise  and  the  investment  of  money  in  your 
State,  and  choke  it  to  such  an  extent  as  to  s-care  it  very  badly,  if  you  do  not  kill  it. 
There  is  no  occasion  for  it  to  accomplish  your  purpose.  If  you  have  no  faith  in  your 
Legislature,  if  you  do  not  think  that  without  a  positive  mandate  they  will  do  what 
they  ought  to  do,  make  the  mandate  in  the  Constitution,  and  tell  them  what  they 
shall  do,  but  do  not  let  us  put  in  the  Constitution  the  details  of  twenty-six  pages  of 
matter  with  respect  to  the  minutiae  of  managing  corporations.  My  friend  from 
Staunton  seems  to  be  sensitive  even  about  a  slight  change,  but  I  say  that  a  man 
would  be  more  than  human  who  could  draw  such  a  report  without  its  needing  change 
€ven  after  six  or  eight  or  ten  months'  labor,  and  I  know  he  has  given  to  it  the  most 
unremitting  labor,  and  learning.  I  do  not  think  he  should  be  sensitive  on  the  point, 
for  it  is  more  than  any  human  being  can  do,  or  than  any  dozen  human  beings  can 
do.  It  is  wrong  to  put  it  in  the  Constitution  where  we  cannot  alter  it  and  change  it 
with  respect  to  minor  details. 

But  acting  on  the  supposition  of  the  pos'sibility  of  this  thing,  which  I  regard 
as  bad,  and  which  I  believe  will  return  to  plague  us  all,  not  the  railroads  alone,  but 
the  great  body  of  the  people,  and  the  business  interests  of  the  State,  I  want  to  take 
up  the  report  itself  and  endeavor  to  point  out  some  defects,  even  if  it  is  a  perfect 
instrument,  Mr.  Chairman,  in  the  hope  that  if  I  can  commend  my  reasons  to  this 
body  we  will  get  this  paper  in  as  good  a  shape  as  possible,  if  we  are  to  take  it  in 
the  Constitution. 

These,  Mr.  Chairman  and  gentlemen,  are  criticisms  which  I  have  to  make  of  the 
article;  criticisms  intended  honestly  and  in  good  faith  to  better  the  report,  not  made 
with  a  hostile  eye  or  feeling  to  the  report,  but  with  the  feeling  that  if  I  am  to  have 
this  to  go  in  the  Constitution,  I  wish  it  to  go  in  the  Constitution  in  the  shape  to  do 
as  little  harm  as  possible,  consistent  with  carrying  out  the  views  of  its  authors,  the 
majority. 

In  the  second  section,  on  page  2,  line  2,  we  read  the  following: 

The  creation  of  corporations  and  the  extension  and  amendment  of  charters 
(whether  heretofore  or  hereafter  granted)  shall  be  provided  for  by  general  laws. 

Now,  I  may  be  very  stupid,  much  more  so  than  the  average  man,  possibly  even 
as  stupid  as  the  gentleman  from  Roanoke — and  if  I  am,  I  would  thank  God — but  I 
do  not  understand  that.  I  do  not  understand  that  the  creation  of  corporations 
heretofore  granted  are  to  be  provided  for  hereafter  by  general  law,  unless  the 
committee  means  to  revoke  all  the  existing  charters  in  the  State  and  start  fresh 
under  general  laws.  At  any  rate,  it  is  doubtful  to  a  mind  as  limited  in  capacity 
as  mine,  and  I  think  if  it  is  doubtful  to  me  it  ought  to  be  made  clearer,  because  I 
believe  I  have  average  intelligence  and  knowledge  of  law. 

Mr.  Braxton:  Does  the  gentleman  think  that  any  court  would  have,  difBculty 
in  applying  the  parenthetical  clause  to  the  word  "  charters "  which  immediately 
precedes  it  so  that  it  would  read,  "  The  extension  and  amendment  of  charters, 
whether  those  charters  had  been  heretofore  granted  or  not?" 

Mr  Hamilton:  I  do  not  know  what  a  court  would  do.  I  had  trouble  about  it, 
and  it  was  an  honest  trouble  and  an  honest  difficulty,  and  not  one  raised  up  here 
to  plague  you  or  the  committee.  If  it  means  what  you  say  it  means,  it  should  be 
so  expressed,  it  seems  to  me,  so  that  we  may  know  what  it  means — not  an  extra- 
ordinary man  of  extraordinary  mind,  but  a  man  of  fair  mind  ought  to  know  what 
Jt  means. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA.  2337 

Mr.  Braxton:    May  I  ask  the  gentleman  how  the  word  "granted"  would  apply 
to  corporations?    What  would  you  mean  by  granting  a  corporation? 
Mr.  Hamilton:    Why,  you  grant  a  charter  to  a  corporation. 

Mr.  Braxton:  And  therefore  it  refers  only  to  charters,  and  not  to  corpo- 
rations? I  am  merely  making  the  suggestion  to  the  gentleman  in  the  hope  I  may 
relieve  the  difSculty  he  suggests,  that  the  context  and  meaning  of  the  words  is 
such  that  it  could  not  possibly  apply  to  corporations,  when  you  say  "hereafter  or 
heretofore  granted."  It  would  not  mean  whether  the  corporation  was  heretofore 
or  hereafter  granted,  but  the  word  ''granted"  could  apply  only  to  the  word  "charter," 
ivhich  immediately  precedes  it. 

Mr.  Hamilton:  To  my  mind  the  creation  of  every  corporation  is  necessarily 
•connected  with  the  concept  of  a  grant.  It  cannot  exist  without  a  grant  from  some 
person  authorized  to  grant  its  life,  that  is,  its  charter.  Its  existence  depends  upon 
ration  in  the  same  sentence,  without  language  to  show  that  it  refers  only  to  an  ex- 
tension or  amendment,  I  do  not  think  it  is  clear  that  it  does  not  refer  to  the  creation 
'Of  a  corporation. 

Now,  the  next  line — and  I  read  these  few  lines  again  to  get  the  connection — 

The  creation  of  corporations  and  the  extension  and  amendment  of  charters 
(whether  heretofore  or  hereafter  granted)  shall  be  provided  for  by  general  laws. 

It  seems  to  me  the  clause  or  sentence  ought  to  stop  there.  It  is  followed  by 
the  words  "uniform  as  to  the  class  of  corporations  to  which  they  relate." 

Now,  Mr.  Chairman,  I  do  not  know  whether  we  have  hundreds,  but  I  presume 
we  have  hundreds  of  existing  corporations  in  Virginia  not  inimical  to  the  public 
Interests,  not  complained  of  by  the  public,  but  with  different  powers,  different 
charters,  different  sorts  of  authority  granted  them,  none  of  those  things  objected 
to,  as  far  as  I  know;  corporations  which  have  acted  under  those  charters,  their 
charters  of  life  for  a  long  time.  Whenever  an  amendment  is  made  in  the  future, 
that  amendment  is  going  to  have  the  effect,  in  the  creation  of  corporations  and 
in  these  extensions,  of  making  every  charter  of  a  corporation,  of  the  same  class, 
uniform. 

Now,  gentlemen,  there  are  a  great  many  provisions,  probably,  in  the  con- 
solidated charter  of  the  Southern  Railroad  Company  that  the  Atlantic  Coast  Line 
does  not  want,  and  vice  versa,  probably.  I  have  no  doubt  there  are  provisions 
under  the  charter  of  the  Chesapeake  and  Ohio  Railway  Company  that  the  other 
railroads  do  not  want  in  Virginia.  The  conditions  are  different,  the  circumstances 
are  different,  their  needs  are  different,  their  financial  status  probably  is  entirely 
different:  and  yet,  with  that  last  line  in,  no  amendment,  no  matter  how  innocent, 
no  matter  how  unobjectionable,  no  matter  how  much  it  is  desired  by  all  parties 
to  grant  it,  can  be  given  to  any  corporation  of  a  certain  class  unless  that  thing 
is  fastened  upon  every  other  corporation  of  the  same  class,  whether  it  fits  it  or 
not.  I  say  those  words  "uniform  as  to  the  class  of  corporations  to  which  they 
relate"  should  be  stricken  out.  They  are  of  no  value.  The  subject  has  already 
iDeen  covered  in  the  legislative  report,  and  if  enforced  it  simply  means  trouble  and 
confusion. 

Mr.  Meredith:  Will  the  gentleman  examine  and  see  how  far  that  differs  from 
the  legislative  report  on  that  subject? 

Mr.  Hamilton:  My  impression  is  that  the  legislative  report,  as  adopted,  made 
some  change  that  would  have  covered  that  point.  I  think  there  was  a  change 
made  on  the  floor  of  the  Convention  or  of  the  Committee  of  the  Whole,  I  have 
forgotten  which,  which  covered  the  difficulty  of  that  subject  to  some  extent.  I 
have  not  examined  it  with  care. 

Now,  Mr,  Chairman,  as  to  the  creation  of  this  commission.  The  commission 
is  to  be  permanent  and  to  consist  of  three  members.    They  are  to  be  appointed  by 


2338  DEBATES  OF  THE  COlsSTITUTIONAL  CONVENTION  OF  VIRGINIA.. 

the  Governor.  Well,  I  say  here  I  believe  it  is  a  better  way  of  creating  a  commis- 
sion of  this  kind  than  to  elect  them  by  the  people.  I  think  the  men  are  more  apt 
to  be  selected  with  respect  to  their  special  fitness  for  the  duties  they  have  to 
discharge.  I  approve  of  the  method  referred  to  and  approved  by  the  committee- 
in  that  respect,  as  between  it  and  the  other  methods.  I  do  not  believe  that 
elections  by  the  people  would  be  best  for  the  State,  best  for  the  people,  or  best  for 
the  railroads.  I  have  known  railroad  commissioners  in  the  South,  when  they 
had  to  be  elected  by  the  people,  to  go  upon  the  stump  and  promise  in  advance 
what  they  v/ould  do  and  what  they  would  not  do  in  the  discharge  of  their  official 
duties  as  judges  if  they  were  elected:  I  think  it  is  a  bad  way  to  elect  these  judges,, 
as  well  as  every  other  kind  of  judge. 

Of  course,  there  are  grounds  to  object  to  it.  Some  people  say  you  are  aggre- 
gating too  much  power  in  the  hands  of  the  Governor,  that  the  Governor  in  future 
will  have  more  power  than  he  has  ever  had  before  in  Virginia,  that  he  will  get 
to  be  such  a  great  power  that  he  will  dominate  the  State  of  Virginia.  Y/ell^  of 
course  that  is  a  danger.  I  must  confess  that  under  the  present  Executive  of  this 
State,  from  what  I  have  seen  of  him,  from  what  I  know  of  his  views  about  ap- 
pointments, I  would  look  for  good  appointments,  appointments  made  not  only 
because  it  is  right  to  make  good  appointments,  but  from  a  high,  intelligent  sense 
of  policy  on  the  part  of  the  present  Executive;  but,  gentlemen,  we  do  not  know 
what  we  may  have  in  the  future.  You  cannot  tell  whether  you  are  always  going 
to  have  a  Governor  like  the  one  we  have  now;  and  whilst  I  am  not  objecting  to 
his  appointing  them,  I  think  that  is  a  strong  reason  why  you  should  define  and 
limit  the  duties  of  these  commissioners,  just  as  you  have  defined  and  limited  the 
duties  of  your  other  judges,  and  of  your  Legislature,  and  of  your  Governor, 

Another  thing:  The  Governor  is  to  appoint  these  men  and  they  are  to  be 
subject  to  confirmation  by  the  General  Assembly  in  joint  session.  That  seems 
to  be  about  as  good  a  way,  in  my  judgment,  as  you  can  get  at  it.  Their  regular 
term  of  office  is  to  be  six  years.  In  my  opinion,  gentlemen,  it  is  too  short.  You 
elect  your  judges  of  the  Court  of  Appeals  for  twelve  years.  You  give  the  people- 
bigger  and  more  arbitrary  power  than  you  give  your  Court  of  Appeals.  You  give 
these  people  the  power  of  prosecutor,  judge  and  legislator.  If  you  are  going  to 
have  the  work  well  done,  they  ought  to  be  put  upon  the  basis  of  a  long  term,  with 
a  salary  as  high  as  you  can  afford  to  pay  him.  Remove  him  as  far  as  possible 
from  temptation.  I  do  not  mean,  of  course,  foolishly  high,  but  high  enough  cer- 
tainly to  obtain  a  first-class  man  to  occupy  the  position;  and  then,  gentlemen,  do 
not  let  him  be  eligible  for  re-election,  provided  what  you  have  done  heretofore  in 
this  line  is  well  done  with  respect  to  eligibility.  I  have  always  been  opposed  to 
the  ineligibility  idea.  I  objected  to  it  for  commissioner  of  the  revenue.  I  objected 
to  it  for  treasurers;  but  if  it  was  true  there  that  you  ought  to  put  a  man  beyond" 
the  reach  of  temptation  with  respect  to  a  re-election  in  discharging  his  duties,  it 
is  still  more  true  here  where  these  people  probably  have  to  deal  with  a  third  of  the 
values  of  Commonwealth  and  with  powers  undefined  and  of  a  very  arbitrary 
nature. 

Make  the  term  the  same  term  as  the  Court  of  Appeals  term,  twelve  years.  Give^ 
them  the  same  salary  that  you  give  the  judges  of  your  Court  of  Appeals,  $4,000, 
and  make  them  ineligible.  Fix  it  so  that  they  will  not  have  a  better  chance  to 
be  re-elected  by  being  unjust  judges  and  being  demagogues  on  the  bench,  and  pan- 
dering to  the  passions  of  the  passionate  portion  of  the  populace  and  at  the  same- 
time  that  they  shall  not,  by  improper  leaning  towards  the  corporations,  get  their 
influence  for  a  re-election. 

Every  reason  which  could  have  been  given  as  to  the  ineligibility  of  these 
other  officers  applies  in  a  stronger  degree  to  these  men,  clothed  with  such  extra- 
ordinary powers  and  jurisdiction,  and  dealing  with  subjects  of  such  great  value. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA.  2339" 

In  stating  my  vievrs  with  respect  to  the  appointment  of  this  commission,  its 
salary  and  its  term  and  ineligibility,  I  wish  it  to  be  most  distinctly  understood 
that  I  speak  only  for  myself.  I  do  not  know  what  views  other  gentlemen  take 
who  are  opposed  to  this  majority  report.  I  have  not  conferred  with  them  in  re- 
spect to  the  matter,  and  in  no  sense  must  you  understand  that  I  am  speaking  for 
them.  I  am  merely  saying  what  I  think,  because  if  we  have  this  thing,  if  w& 
are  to  put  in  our  Constitution  a  dangerous  thing,  I  wish  it  put  in  such  a  shape 
that  it  will  work  out  well  and  bring  good  results,  and  not  that  we  will  get  in 
those  positions  a  lot  of  broken  down  politicians  and  trashy  people  that  run  around 
seeking  offices.  I  understand  there  is  already  springing  up  something  of  the  kind, 
that  they  are  beginning  to  come  to  Richmond  already  to  seek  the  place  of  railroad 
commissioner. 

There  are  people  who  imagine  they  are  great  railroad  people  and  experienced 
because,  possibly,  they  have  had  some  slight  connection  with  promoting  a  bob-tail 
line  somewhere,  and  they  think  they  are  especially  fitted  to  be  railroad  commissioners. 

I  think  if  we  have  it,  we  ought  to  have  it  under  such  conditions  as  almost  to 
insure  us  an  administration  by  high,  honorable,  intelligent  men;  as  high,  honorable 
and  intelligent  as  we  can  get  for  salaries  in  the  State  of  Virginia,  according  to  our 
means  and  the  ordinary  methods  and  conditions.  If  this  law  were  to  be  administered, 
even  in  the  form  in  which  it  is  presented  by  this  committee,  by  the  Court  of  Ap- 
peals, and  I  were  sure  it  would  always  be  administered  by  people  of  that  sort,  I 
would  not  care  to  detain  you  for  one  moment  to  argue  the  question,  because  even 
as  dangerous  a  law,  even  as  a  bad  law,  unless  the  badne^  was  mandatory  in  it,  I  am 
sure  those  men  would  so  administer  as  to  bring  justice  and  equity  out  of  it;  but  you 
do  not  know  what  sort  of  people  you  are  going  to  get  to  administer  it  .  You  hope  the 
Governor  will  always  be  a  high,  sensible  man,  and  will  appoint  good  people;  but  you 
do  know,  gentlemen,  the  influences  which  environ  all  of  us,  and  especially  governors 
and  men  high  in  power,  and  ambitious  men.  You  know  perfectly  well  that  when  a 
man  gets  to  be  Governor  in  Virginia,  as  a  usual  thing,  he  expects  to  be  United  States 
Senator  in  due  course  of  time.  I  never  saw  one  who  did  not  expect  it,  or  did  not 
have  a  sort  of  an  idea  that  way  if  he  was  encouraged  at  all.  You  know  they  are 
mighty  good;  they  are  very  high,  much  better  than  we  are,  of  course,  but  they  are 
human,  and  the  appointments  that  are  made  on  this  commission  will  probably  be 
very  fat  plums,  and  probably  it  will  make  a  good  deal  of  difference  if  a  man  is  a  very 
Influential  politicians  in  his  section  of  the  State.  Put  it  high  enough  so  that  when 
a  man  goes  on,  it  is  worth  having  :  let  him  be  on  for  a  good  long  term.  Give  him  a 
salary  that  will  enable  him  to  live  decently,  to  be  reasonably  above  temptation,  and 
then  when  he  serves  out  his  term,  let  him  be  forever  ineligible  again. 

Mr.  Meredith:  Does  the  gentleman  make  any  suggestion  in  the  way  of  amend- 
ment? 

Mr.  Hamilton:  No:  in  speaking  now  I  cannot  undertake  to  put  in  the  amend- 
ments. I  was  endeavoring  to  go  over  the  report  suggesting,  really  with  the  view  of 
trying  to  better  the  report,  as  to  certain  things  which  strike  me  as  subject  to  just 
criticism  in  it. 

Whilst  I  am  on  that  point,  this  is  a  provision  which  is  put  in  in  respect  to  the 
qualification  of  these  men: 

No  person  employed  by  or  holding  any  office  in  relation  to  any  transportation  or 
transmission  company,  or  who  is  in  anywise  financially  interested  therein,  shall  hold 
office  as  such  commissioner  or  perform  any  of  the  duties  thereof. 

I  think  that  is  a  usual  provision  in  such  statutory  provisions,  and  I  see  no  ob- 
jection to  it  except  that  it  looks  to  me  as  if  it  is  one-sided.  I  do  not  see  any  more 
reason  why  a  shipper,  interested  in  the  business  of  transportation,  should  be  eligible 
to  serve  on  this  commission  than  a  man  interested  in  or  connected  with  a  railroad 


2340  DEBATES  OF  TIIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

company.  I  can  see  that  a  man  might  be  put  upon  the  commission  who  had  great 
interests  to  subserve  improperly  as  a  shipper,  I  do  not  see  why  the  railroad  man 
should  be  the  only  man  guarded  against  such  influences.  Everybody,  I  take  it,  Mr. 
Chairman,  represents  something  in  this  Convention.  I  take  it  there  is  not  a  man 
here  who  does  not  represent  property  or  interests  or  people  or  thoughts — something 
valuable. 

Are  you  to  single  out  and  segregate  one  thing  and  treat  that,  as  the  gentleman 
from  Roanoke  (Mr.  Robertson)  said,  as  a  pariah?  I  think  no  man  who  serves  upon 
this  commission  should  have  any  financial  interest  of  any  sort  In  the  results  of  the 
work  of  that  commission,  except  as  a  citizen  of  the  State.  There  should  be  an  in- 
hibition against  any  man  serving  upon  It  who  had  any  selfish  personal  interest  to 
serve  beyond  earning  his  salary. 

The  next  qualification  for  a  member  of  that  commission  is  one  which  I  cannot 
help  commenting  upon.  I  cannot  say  I  object  to  it,  and  yet  we  have  just  seen  It 
shown  that  nobody  having  anything  to  do  with  a  railroad  should  be  a  commissioner, 
and  the  next  clause  is  that  at  least  one  member  of  the  commission  shall  be  a  lawyer, 
with  the  qualifications  of  a  judge  of  the  Court  of  Appeals.  Well,  I  think  a  good  deal 
of  lawyers.  I  think  a  good  lawyer  is  about  the  best  man  in  the  world,  and  a  mean 
lawyer  is  probably  about  the  meanest  man  in  the  world.  I  think  there  are  very  few 
committees  and  very  few  enterprises  that  can  get  along  successfully  and  well  with- 
out the  advice  and  aid  of  a  good  lawyer.  I  think  it  is  a  very  good  thing  to  have  one 
on  the  commission,  but  the  chairman  of  the  committee  does  not  agree  with  me.  As 
I  understand  his  opening  remarks,  he  says  in  some  places  that  this  is  a  court,  and 
a  court  of  great  power,  great  responsibilities,  great  duties;  and,  of  course,  if  it  is 
a  court  it  has  judicial  functions;  and  in  other  places  he  says  the  making  of  rates 
which  is  put  upon  this  thing  is  a  legislative  function. 

I  do  not  myself  see  why  this  body  cannot  exercise  both  the  legislative  and  ju- 
dicial function,  so  far  as  the  making  of  rates  is  concerned,  but  this  is  what  he  says 
in  reference  to  that  matter.  I  regret  I  am  taking  the  time  of  the  members,  but  I 
cannot  help  feeling  that  I  have  not  trespassed  greatly  on  you  heretofore,  and  as 
this  is  important,  I  hope  you  will  forgive  me. 

The  chairman  of  the  committee,  in  opening  this  subject,  and  in  arguing  that 
the  courts  of  the  Commonwealth  were  not  the  proper  places  or  tribunals  to  try 
questions  connected  with  the  fixing  of  rates,  and  the  reasonableness  of  rates,  in 
order  to  justify  this  commission,  said  the  court  was  not  fit  to  fix  rates,  and  did  not 
have  the  knowledge  or  the  sense  or  the  experience  to  do  so.  He  says:  "In  the  first 
place,  as  was  held  by  the  Supreme  Court  of  the  United  States  in  the  case  of  Munn 
vs.  Illinois,  194  U.  S.,  the  fixing  of  rates  is  not  a  judicial  question.  The  court  is 
no  more  able,  by  reason  of  its  being  a  court,  to  fix  rates,  than  a  doctor  is.  A  man 
may  be  ever  so  learned  as  a  lawyer,  and  whatever  his  individual  capacity  in  rate 
fixing  may  be,  his  knowledge  as  a  lawyer  no  more  helps  him  in  fixing  rates  than  a 
preacher  who  depended  upon  his  knowledge  of  theology  would  be  assisted  in  fixing 
rates  by  that  knowledge.  It  is  not  a  question  of  law.  It  is  a  practical  question; 
it  is  a  business  question.  It  is  a  question  that  any  good  merchant,  manufacturer, 
banker  or  shipper  of  any  sort  is  better  able  to  deal  with,  so  far  as  the  experience 
of  his  business  is  concerned,  than  a  lawyer  is.    Why,  then,  refer  it  to  the  courts?" 

Gentlemen,  what  is  there  about  it  that  makes  it  not  a  court,  so  that  a  lawyer 
is  peculiarily  unfitted  comparatively  to  discharge  the  duties  of  a  member  of  that 
court?  And  yet,  in  saying  who  shall  go  on  the  court,  the  chairman  (the  committee) 
says  that  one  lawyer,  with  the  qualifications  of  a  judge  of  the  Court  of  Appeals 
shall  be  a  member.  It  seems  to  me  he  is  right,  possibly  in  the  article  about  the 
lawyer,  and  wrong  in  the  reasoning  with  which  he  presented  this  matter  to  the  com- 
mittee, and  said  that  a  court  was  not  fit  to  fix  rates  or  to  consider  rates.  As  a  mat- 
ter of  actual  fact,  he  has  not  acted  upon  that  supposition  himself.  He  has  granted 
a  right  of  appeal  from  the  commission  to  the  Supreme  Court  of  Appeals  with  respect 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


2341 


Certainly  a  court  without  a  lawyer  on  it  would  be  somewhat  extraordinary. 
I  have  seen  them,  though.  I\Ir.  Chairman:  but  I  believe  this  will  be  far  more  than 
a  court.  It  will  be  the  Commonwealth's  attorney  and  the  court  and  the  Legislature 
combined,  as  you  will  see  later '  on.  It  has  the  power  of  initiating  a  prosecution,  of 
working  tin  complaints  for  itself,  and  then  it  has  the  power  of  saying  whether  its 
own  v>-ork  was  correct  and  justified  or  not;  and  then,  under  this  article,  it  i^  given 
the  sole  power  of  permitting  this  despised  body  called  the  Legislature  to  make  any 
changes  even  in  the  machinery  of  it.  In  other  words,  no  legislation  can  take  place 
with  respect  to  this  article  unless  these  gentlemen,  who  are  first  prosecutors,  com- 
plainants, themselves,  then  judges  of  their  own  complaints,  come  to  the  Legislature 
and  say.  "We  recommend  to  you  that  you  do  so  and  so  with  respect  to  the  machinery 
of  this  act.  but  not  with  respect  to  the  substantial  rights,  and  if  you  do  not  do  what 
we  recommend  you  to  do,  you  shan't  do  anything."' 

This  is  the  extraordinary  body  that  is  put  up  here  with  the  powers,  as  I  say, 
of  a  prosecutor,  of  a  complainant,  and  a  judge.  Is  there  any  man  in  this  Conven- 
tion who  vrould  be  willing  to  trust  to  a  judge  who  is  also  the  prosecutor?  You  may 
find  some  rare  exception  in  life  when  a  man's  mind  is  so  high  and  so  well  balanced, 
when  his  sense  of  justice  is  so  keen,  that  even  when  he  is  a  prosecutor  he  is  a  quasi 
jiTdge,  and  stands  up  to  see  justice  done,  and  net  to  endeavor  to  punish  people.  I 
have  known  one  such  prosecuting  attorney  in  my  life,  one  man  as  prosecuting  attor- 
ney to  whom  I  would  have  been  willing  to  trust  the  decision  of  my  guilt  or  mnocence 
if  I  had  been  charged  with  crime  in  the  court  where  he  was  an  officer;  but.  gentle- 
men, they  are  so  few  that  you  cannot  base  your  legislation  upon  having  it  executed 
by  that  character  of  man. 

Now,  Mr.  Chairman,  some  of  these  gentlemen  say  there  is  nothing  in  this  report 
except  the  right  to  fix  rates:  that  is,  that  the  balance  of  it  is  nothing,  and  that  the 
opponents  of  the  report  do  not  care  for  the  balance  of  it.  That  is  not  the  case  with 
me.  I  object  to  the  rest  of  it  far  more  than  I  do  to  the  rate  power.  I  think  the 
"state  ought  to  retain  the  control  to  see  that  the  rates  are  reasonable  and  proper,  but 
not  confiscatory.  I  do  not  give  my  assent  to  any  such  doctrine  as  that  the  State 
either  has  the  right,  morally  or  legally,  to  say  that  rates  shall  be  such  that  property 
may  be  practically  destroyed,  provided  you  simply  keep  away  from  the  actual  break- 
ing of  the  camel's  back.  I  believe  the  implied  contract  between  the  State  and  the 
corporation  she  creates  is  that  the  corporation  shall  fairly  and  in  good  faith  dis- 
charge any  public  duty  which  it  has  undertaken  to  discharge,  and  that  the  State 
will  protect  it  in  that  discharge,  and  that  the  corporation  shall  not  go  further  than 
the  proper  and  reasonable  exercise  of  its  powers,  and  that  the  State  has  no  right  to 
require  it  to  go  further  than  that. 

So  we  come  to  Section  4.  By  the  way,  before  I  come  to  that,  it  is  provided  on 
page  6,  although  these  first  commissioners  must  be  appointed  by  the  Governor  and 
confirmed  by  the  General  Assembly,  that  after  the  1st  of  January.  1909.  when  the 
longest  term  of  the  fir^  lot  will  end,  the  General  Assembly  may  provide  by  law  for 
the  election  of  the  commissioners  by  the  people  of  the  State  at  large,  instead  of  by 
appointment  by  the  Governor.  If  that  is  a  correct  proposition,  if  that  should  go  into 
the  Constitution,  I  do  not  see  any  reason  why^  it  should  not  go  in  now  just  as  well  as 
in  1909.  If  it  is  proper  that  these  commissioners  should  be  elected  by  the  people, 
why  should  we  defer  the  exercise  of  that  power  and  that  method  of  selection  for 
eight  years?  It  seems  to  me  we  should  determine  here,  after  mature  judgment  and 
deliberation,  the  best  way  to  select  these  people  in  order  to  get  high  and  efficient 
men  to  discharge  these  duties  well,  and  then  fix  it  in  the  Constitution  as  to  how  it 
shall  be,  if  we  put  any  statute  in  the  Constitution. 

In  Section  4,  page  6,  I  will  read  so  as  to  show  you  the  point  of  my  criticism: 

Subject  to  the  provisions  of  this  Constitution  and  to  such  requirements,  rules, 
and  regulations  as  may  be  prescribed  by  law,  the  State  Corporation  Commission  shall 


2342  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

to  these  rates,  and,  furthermore,  he  says  this  commission  itself  is  a  court,  and  there- 
fore we  are  simply  going  from  one  court,  maybe,  to  another  court,  with  new  officers 
created,  to  whom  we  will  submit  these  questions. 

be  the  department  of  government  to  which  shall  be  issued  all  charters  and  amend- 
ments or  extensions  thereof  for  domestic  corporations,  and  all  licenses  to  do  busi- 
ness in  this  State  to  foreign  corporations. 

Now,  therefore,  gentlemen,  you  see  that  all  sorts  of  corporations  are  embraced 
in  this  matter,  all  of  our  own  corporations,  however  chartered  in  this  State,  and  all 
corporations  doing  business  in  this  State  or  other  States  or  other  countries  

and  through  which  shall  be  carried  out  all  of  the  provisions  of  this  Constitution 
and  the  laws  made  in  pursuance  thereof  for  the  visitation,  supervision,  regulation, 
and  control  of  corporations  chartered  by  or  doing  business  in  this  State. 

These  corporations,  gentlem.en,  that  you  are  giving  this  commission  the  control 
and  the  regulation  of  are  not  solely  transportation  corporations.  They  are  not 
solely  transmission  or  public  service  corporations,  but  you  give  to  these  three  men 
the  right  of  visitation,  supervision,  regulation,  and  control  of  every  corporation  of 
this  State  and  of  every  foreign  corporation  doing  business  in  this  State. 

Mr.  Meredith:    Is  not  that  "subject  to  the  laws  made  in  pursuance  hereof?" 

Mr.  Hamilton:  Of  course  it  is,  Dut  the  laws  cannot  be  made  contrary  to  "hereof," 
you  know. 

Mr.  Meredith:    But  they  do  not  have  any  pov/er  under  this  Constitution-  

Mr.  Hamilton:  You  have  said  it  in  these  lines:  "It  shall  collect,  receive,  and 
preserve  such  reports,  and  annually  tabulate  and  publish  them  in  statistical  form." 

In  other  words,  Mr.  Chairman,  these  three  men  are  granted  the  power  to  visit; 
that  is,  to  inspect,  to  look  into  the  very  inside  of  every  domestic  corporation  of  this 
State  and  every  foreign  corporation  doing  business  in  this  State. 

Mr.  Meredith:  Do  I  understand  you  to  contend  that  by  the  provisions  of  this 
article  they  are  given  that  power? 

Mr.  Hamilton:  I  do,  most  distinctly,  because  it  says,  "It  shall  collect,  receive, 
and  preserve  such  reports."  There  it  is,  "for  the  visitation"  and  "through  which 
shall  be  carried  out  all  the  provisions  of  this  Constitution." 

Now,  Mr.  Chairman,  I  mean  to  say  this,  that  it  is  a  very  dangerous  power  to 
give  to  any  set  of  people — to  require  an  ordinary  businessi  corporation  to  exhibit 
private  affairs  and  its  business  to  the  public.  I  mean  to  say  that  if  two  sets  of 
people  doing  business  under  a  corporate  form,  or  if  one  is  doing  it  that  way  and  the 
other  as  an  individual,  and  the  individual  can  see  what  his  rival  is  doing,  can  look 
into  the  results  of  his  business  and  see  what  his  work  is,  he  will,  and  the  corporate 
business  will  be  at  a  great  disadvantage,  and  people  will  quit  that  form  very  rapidly. 

I  have  always  understood  it  was  a  fundamental  principle  of  good  business  for 
a  man  or  a  company  to  keep  to  itself  that  portion  of  its  business  with  which  the 
public  is  not  specially  concerned,  or  which  it  is  not  its  duty  to  exhibit  to  the  pub- 
lic. If  you  are  going  to  expose  to  public  inspection  the  details  of  all  the  business 
carried  on  in  the  State — and  this  is  positive,  "it  shall  collect,  receive,  and  preserve 
such  reports,  and  annually  tabulate  and  publish  them  in  statistical  form,"  and  the 
reports  are  to  be  kept  by  the  commission,  and  they  will  be  open  to  the  inspection 
of  anybody  in  the  world,  just  as  much  so  as  one  of  the  records  of  the  Court  of  Ap- 
peals  

Mr.  Braxton:  Will  you  point  out  where  it  is  that  this  commission  is  given  the 
power  to  prescribe  the  sort  of  reports  private  corporations  shall  make? 

Mr.  Hamilton:  I  beg  your  pardon  for  .not  being  able  to  turn  to  it  at  once,  but 
there  are  twenty-six  pages  of  this  report  and  ten  sections,  and  I  cannot  recollect  it 
all,  or  exactly  where  everything  else  is  in  it,  but  I  know  there  is  a  section  back 
liere  which  has  some  bearing  upon  this,  and  I  think  there  is  another  section  which 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2343 


requires  visitation  and  requires  reports.  I  think  the  gentleman  himself  a  moment 
ago  asked  me  if  that  was  any  more  than  the  power  given  the  Board  of  Public  Works. 

Mr.  Braxton:  No;  I  asked  you  if  the  power  of  prescribing  the  form  in  which 
reports  that  are  required  by  the  Legislature  shall  be  made  is  not  a  power  which  the 
auditor  has  now.  I  wish  to  call  the  gentleman's  attention  to  the  distinction  between 
prescribing  the  form  in  which  reports  shall  be  made.  The  statute  to-day  says  that 
the  auditor  shall  prescribe  the  form  in  which  such  reports  as  are  required  by  law 
shall  be  made,  and  that  is  all  we  intend  that  this  commission  shall  do.  I  wish  to  say 
that  if  this  article  is  susceptible  of  any  such  construction  as  you  put  upon  it  now, 
certainly  it  is  far  beyond  the  intention  of  the  committee,  and  we  have  no  idea  that 
it  is  susceptible  of  such  construction.  I  think  the  gentleman  upon  further  inspec- 
tion will  see  that  he  is  mistaken  in  thinking  that  this  commission  is  authorized  to 
prescribe  any  sort  of  report  for  any  private  corporation  in  this  State,  but  merely  to 
prescribe  the  form  in  which  a  report  had  been  designated  and  required  by  law  shall 
be  made, 

Mr.  Hamilton:  Mr.  Chairman,  undoubtedly  this  commission  is  given  the  power 
somewhere  here,  and  if  it  is  not,  the  law  will  give  it  the  power,  to  require  some  kind 
of  a  report,  and  the  Constitution,  of  its  own  vigor,  gives  the  power  to  the  commis- 
sion to  say  what  is  the  form  of  that  report;  and  the  commission  may  exercise  that 
power  certainly  in  a  very  imprudent  manner. 

I  think  I  have  accomplished  something  in  calling  the  attention  of  the  learned 
chairman  of  the  committee  to  the  danger  of  this  provision.  He  thinks  it  is  not  a 
danger,  but  I  would  much  prefer,  Mr.  Chairman,  to  drive  a  little  farther  from  the 
precipice  which  will  expose  all  the  corporate  business  of  public  and  private  corpo- 
rations in  Virginia  to  the  inspection  of  rivals  and  the  public.  It  makes  no  difference 
to  the  railroads.  Everything  they  do  is  now  published  to  the  fullest  degree.  No 
other  corporations  that  I  am  aware  of  publish,  as  the  railroads  do,  everything  in 
detail  connected  with  their  affairs,  but  I  do  say  that  is  a  dangerous  provision  for 
the  business  and  corporations  of  the  State  to  have  put  upon  them.  It  is  an  enor- 
mous power  and  an  enormous  danger  to  put  in  the  hands  of  these  commissioners. 

In  Section  15  it  is  provided  as  follows: 

The  General  Assembly  shall  require  annual  reports  to  be  made  to  the  State  Cor- 
poration  Commission,  of  their  affairs  and  conditions,  by  all  corporations  doing  busi- 
^^J^^^  State,  the  character  or  extent  of  whose  business  shall  render  publicity  in 
their  affairs  essential  or  conductive  to  the  public  welfare. 

Now,  who  is  to  determine  that?  Is  it  the  Legislature  or  the  commission?  The 
General  Assembly  shall  require  these  reports  to  be  made  to  the  State  Corporation 
Commission  of  all  corporations  doing  business  here,  the  character  of  whose  business 
would  not  be  injured  by  it,  or  would  render  publicity  desirable.  Who  determines 
it,  I  da  not  know.  If  it  is  left  to  the  Legislature,  if  they  can  determine  whether  it 
will  do  to  publish  the  details  of  one  corporation  and  not  of  another,  I  should  think 
they  could  be  trusted  to  attend  to  a  few  details  connected  with  the  operation  of 
this  scheme,  but  they  are  not  permitted  to  do  so.  But  that  is  not  all  there  is  in  here 
about  the  visitation.  It  comes  in  at  another  place,  and  I  will  get  to  it  in  the  course 
of  my  argument. 

_  Certain  it  is  that  there  is  a  positive  direction  in  Section  4  that  these  commis- 
sioners shall  collect,  receive,  and  preserve  certain  reports,  and  annually  tabulate  and 
publish  them  in  statistical  form.  That  is  not  dependent  upon  what  the  Legislature 
does  or  does  not  do.  It  is  inconsistent  with  what  is  provided  in  Section  13,  and, 
inasmuch  as  these  commissioners  are  given  the  express  power  to  prescribe  the  form 
of  that  report,  it  seems  to  me  that  the  Constitution,  of  its  own  force,  not  only  gives 
the  commissioners  the  power  to  get  this  information  and  these  statistics  but  com- 
pels them  to  publish  them  as  well. 


2344  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Braxton:  If  I  understand  my  friend  correctly,  he  believes  the  provision  he 
refers  to  in  Sub-section  A  of  Section  4,  leaves  it  in  the  power  of  the  commission  to* 
say  what  these  reports  shall  be? 

Mr.  Hamilton:    Certainly  it  does. 

Mr.  Braxton:  But  I  desire  to  call  my  friend's  attention  to  this:  "The  said  com- 
mission shall  prescribe  the  form  of  all  reports" — those  reports  which  may  be  re- 
quired of  such  corporations,  not  by  the  commission,  but  by  the  Constitution  or  by 
law;  and  it  is  only  those  reports  that  are  required  by  law  or  by  the  Constitution 
which  they  have  the  right  to  prescribe  the  form  or  to  collect  or  to  publish. 

Mr.  Hamilton:    Do  you  not  propose  to  require  all  of  them  to  report? 

Mr.  Braxton:  I  do  not.  None  of  them  are  required  to  report,  except  as  may  be 
prescribed  by  law. 

Mr.  Hamilton:  I  think  Section  4  says  that  the  report  shall  show  anything  that 
the  commission  lays  down  or  requires,  and  it  certainly  requires  that  it  shall  be 
something  which  has  figures  or  statistics  in  it. 

Mr.  Braxton:  The  present  statute  has  for  years  provided  that  the  auditor  shall 
prescribe  the  form  of  the  reports  which  the  General  Assembly  shall  require,  and  it 
has  never  been  intended  or  construed  that  the  auditor  has  a  right  to  do  more  than 
to  arrange  the  form  in  which  the  information  called  for  by  the  General  Assembly 
shall  be  stated.    I  have  used  almost  the  identical  language  of  our  present  statute. 

Mr.  Hamilton:  As  a  matter  of  actual  fact,  have  there  ever  been  any  such  re- 
ports  made  to  the  auditor,  except  as  to  transportation  companies? 

Mr.  Braxton:    Yes,  sir;  by  insurance  companies  and  banks. 

On  motion  of  Mr.  Robertson,  the  committee  rose  and  the  President  resumed  the 
chair. 

On  motion  of  Mr.  Lindsay,  the  chair  was  vacated  until  4  o'clock  this  afternoon. 

AFTER  RECESS. 

At  the  expiration  of  the  recess  the  committee  resumed  its  session,  the  President 
pro  tempore  (Mr.  Anderson)  in  the  chair. 

On  motion  of  Mr.  Braxton,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Eggleston  in  the  chair. 

Mr.  Hamilton:  Mr.  Chairman  and  gentlemen  of  the  committee,  proceeding  to 
point  out  to  the  members  of  the  committee  as  best  I  can  what  I  consider  defects  in 
the  article  reported  by  the  majority  of  the  Committee  on  Corporations,  I  now  come 
to  Sub-section  b  of  Section  4  on  page  7. 

This  is  the  most  important  section,  so  far  as  transportation  and  transmission 
companies  are  concerned,  in  the  article.  It  is  the  section  which  confers  power,  and 
I  regret  to  say  confers  it  in  an  indefinite  way,  so  indefinitely  that  apparently  the 
gentlemen  who  framed  it  are  unable  to  define  the  powers  which  they  have  conferred 

The  section  is  as  follows: 

The  said  commission  ^hall  have  the  power,  and  be  charged  with  the  duty. 

The  commission  is  not  only  given  the  power,  but  it  is  made  its  positive,  affirma- 
tive duty  to  exercise  that  power — 

of  supervising,  regulating,  and  controlling  all  transportation  and  transmission  com- 
panies doing  business  in  this  State,  in  all  matters  relating  to  the  performance  of 
their  public  duties  and  of  their  charges  therefor. 

Now,  I  say,  gentlemen,  that  when  the  power  of  control  is  given  over  these  com- 
panies in  all  matters  relating  to  their  public  duties  and  of  their  charges  therefor, 
that  there  is  no  power  omitted.  I  mean  to  say  that  with  respect  to  a  public  or 
quasi-public  transportation  company,  like  a  railroad  company  or  a  canal  company 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2345 


with  the  duty  of  transportation,  or  a  telegraph  or  telephone  company,  which  are 
companies  embraced  in  the  definition  of  transmission  companies,  that  every  duty, 
more  or  less,  directly  or  indirectly,  is  a  public  duty.  It  not  only  embraces  the  right 
to  fix,  and  to  change,  and  to  modify  tariff  rates  of  freight  and  passengers,  but  extends 
to  everything.  It  was  entirely  useless,  if  that  language  is  to  prevail,  for  the  commit- 
tee to  go  on  and  lay  lower  down  that  the  commission  had  the  right  to  classify  freight, 
that  it  had  the  right  to  make  rules  and  regulations,  that  it  had  the  right  to  require 
the  railroads  to  establish  and  maintain  such  public  service,  facilities,  and  conveni- 
ences, as  the  said  commission  may  deem  reasonable  and  just.  That  is  all  embraced 
in  the  word  "control."  I  say  that  unless  these  gentlemen  mean  to  put  these  com- 
panies in  all  respects  at  the  mercy  of  this  commission  that  the  word  "control"  should 
be  defined. 

Now,  they  say  they  have  defined  it,  and  I  will  turn  to  an  amendment  which  was 
put  in  here  several  days  ago  by  the  chairman  of  this  committee,  which  holds  out  on 
its  face  the  promise  of  a  correction,  but  absolutely  fails  to  carry  out  that  promise. 
It  is  an  amendment  which  is  meaningless  in  the  very  language  in  which  it  is  made. 

After  going  on  to  give  many  other  powers  which  I  have  thought  it  best  to  go 
back  to,  it  says  this.  However,  I  think  I  had  better  go  through  v/ith  the  others  first, 
because  it  refers  to  rates,  etc. 

Now,  I  mean  to  say  that  public  duties  ought  to  be  defined.  Suppose  a  strike 
arose,  that  I  may  illustrate,  on  the  part  of  the  employees  of  one  of  these  companies — 
suppose  that  the  company  refused  to  accede  to  the  demands  of  the  strikers  among  its 
employees.  Suppose  there  was  a  temporary  cessation  or  a  part  carrying  out  only  ot 
the  work  of  the  corporation  in  furnishing  transportation  or  tra,nsmission  facilities, 
it  has  been  held  by  some  inferior  courts,  I  mean  some  courts  of  lower  degree,  pos- 
sibly by  some  supreme  courts,  that  the  duty  upon  the  transportation  company  is  im- 
perative, does  not  admit  of  any  qualifications  to  furnish  the  service,  and  under  this 
word  "control"  it  might  be  the  case  that  this  commission  would  have  the  right  to 
say  what  wages  should  be  paid  to  these  employees;  and  the  instances  generally  in 
which  the  word  "control"  may  be  invoked  to  cover  any  and  everything  connected 
with  such  a  company  are  numberless;  and  the  reason  that  the  gentlemen  who  pre- 
pared this  report,  I  presume  the  reason  why  they  have  not  defined  more  accurately 
the  meaning  of  the  word  "control"  in  the  discharge  of  its  public  duties,  is  that  it  is 
a  hopeless  task,  for  "control"  embraces  all. 

Now,  is  it  your  purpose,  is  it  your  desire,  is  it  your  wish?  I  have  not  so  under- 
stood it  from  the  gentlemen  representing  the  majority,  in  all  things  to  put  these  cor- 
porations absolutely  under  the  control  of  the  corporation  commission?  That  is  not 
what  you  say  upon  the  floor.  That  is  not  what  you  maintain  when  you  argue.  But 
it  is  a  fact  you  have  left  it  here,  and  it  looks  to  me  that  you  have  left  it  because  you 
cannot  help  leaving  it  if  you  use  the  word  "control."  You  cannot  define  the  specific 
instances.  That  is  one  reason  I  say  there  should  be  nothing  in  this  report  except— 
if  you  propose  to  adopt  a  bad  principle  and  put  it  in  the  Constitution— to  properly 
guard  the  fixing  of  rates,  etc.,  and  this  provision  about  the  employers'  liability  bill 
properly  guarded.  The  people  are  asking  for  nothing  else,  even  if  they  are  asking 
for  that.    I  do  not  believe  they  are  asking  for  that. 

I  was  going  to  say  this  morning,  and  my  thought  goes  back  to  it  now,  that  I 
have  gotten  a  lot  of  these  petitions  or  recommendations  from  the  Chamber  of  Com- 
merce, first  to  approve  the  Withers'  bill,  which  I  believe  was  the  first  introduced,  a-nd 
then  to  approve  the  Corporation  Committee  report,  the  one  first  published.  1  will  not 
call  it  a  report  if  it  is  offensive  to  the  chairman  of  the  committee,  but  it  was  so  un- 
derstood by  the  people,  and  I  venture  to  say  that  there  is  not  a  Chamber  of  Com- 
merce in  Virginia  that  had  ever  read  the  report  that  we  are  considering  to-day  before 
they  sent  us  those  resolutions.  They  know  not  what  they  do  when  they  ask  us  to  en- 
dorse it.  I  know  perfectly  well— I  have  practiced  law  for  nearly  thirty  years— and  I 
know  perfectly  well  that  there  are  merchants  in  Richmond  and  Petersburg  and  Nor- 
148— Const.  Deb. 


23^6  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

folk  and  Lynchburg  who  would  be  almost  run  mad  by  the  strict  enforcement  of  the 
provisions  of  this  bill.  They  would  feel  that  their  business  was  destroyed  and  their 
livelihood  gone. 

Take  the  cities  that  sell  to  the  country  south  of  us.  They  run  along  the  line  of 
the  James  river  generally — the  general  line  is  along  the  river — including  Lynch- 
burg, Richmond,  Petersburg,  and  Norfolk.  They  all  are  competing  for  the  trade  of 
the  country  south  of  us.  They  are  all  in  the  same  territory,  and  each  one  of  the 
merchants  of  those  cities,  the  wholesale  people,  and  each  one  of  the  manufacturers, 
is  almost  absolutely  dependent  for  a  prosperous  business  upon  getting  his  stuff  to 
his  place  upon  the  same  terms  they  do  in  the  other  cities.  They  now  have  the  same 
rate,  I  believe,  from  all  points  North,  and  they  are  fighting  for  a  living  in  the  same 
territory.  You  let  it  be  shown  that  a  Richmond  merchant  can  get  a  barrel  of  flour 
from  Lexington  or  Staunton  twenty  cents  cheaper  than  the  merchant  in  Petersburg 
in  the  same  line  of  business,  and  the  latter  will  curse  the  day  that  he  ever  approved 
such  a  report.  He  v/ill  be  put  to  that  disadvantage  in  selling.  And  they  know  not, 
I  say,  what  they  do.    They  have  not  read  the  report. 

Another  thing  I  want  to  say  from  my  knowledge  of  the  proceedings  of  Cham- 
bers of  Commerce.  It  is  not  one  time  in  a  hundred  that  they  have  over  half  a  dozen 
men  to  attend  a  meeting  unless  it  is  a  matter  of  great  public  interest.  I  have  known 
in  my  city  a  half  dozen  men  to  meet,  who  were  gotten  together  by  some  men  who  had 
some  special  interest  in  some  bill  that  he  wanted  the  Chamber  of  Comm.erce  to  ap- 
prove, and  he  would  get  a  half  dozen  men  there  to  approve  it.  It  does  not  amount  to 
a  snap  of  your  finger. 

I  recollect  once  that  they  had  a  meeting  of  the  Chamber  of  Commerce  to  con- 
sider the  matter  of  the  change  in  the  location  of  a  railway  station.  There  was  a 
meeting  of  forty-one  or  forty-two  people,  which  was  an  unusually  large  meeting. 
One  man  had  made  one  of  these  old-fashioned,  fine  spread-eagle  speeches,  and  made 
them  believe  that  the  railroad  was  going  to  destroy  the  town,  and  they  voted  unani- 
mously that  what  was  proposed  to  be  done  should  not  be  done.  And  then  one  man 
amongst  them  got  up  and  said  that  it  was  possible  that  they  had  better  get  Mr.  So- 
and-So  to  explain  this  matter  to  them.  The  man  was  sent  for.  He  went  there.  He 
was  greatly  surprised  at  the  action  of  the  Chamber  of  Commerce,  and  he  explained 
the  facts,  and  that  chamber  of  commerce  reversed  itself  in  less  than  twenty  minutes, 
and  only  two  out  of  the  forty-one  voted  as  they  originally  voted.  One  was  the  man 
who  made  the  spread-eagle  speech,  and  the  other  was  a  man  who  was  never  known 
to  change  his  position  on  a  matter  when  once  taken.  They  are  not  capable,  with  no 
information  before  them,  generally,  of  knowing  just  what  is  best  for  them. 

I  know  perfectly  well  that  an  absolute  enforcement  of  what  you  call  the  long 
and  short-haul  clause  would  put  them  all  in  the  greatest  trouble  in  the  cities  I 
speak  of. 

So  I  say  I  beg  that  the  learned  chairman  of  this  committee,  a  man  who  has  been 
described  by  the  gentleman  v/ho  spoke  here  this  morning  as  having  the  best  command 
of  the  English  language  of  anybody  in  this  Convention,  or  equally  as  good  at  least. 
I  beg  that  with  all  his  command  of  accurate  and  elegant  English  that  he  will  at 
least  define  for  the  people  what  he  means  by  control  in  the  discharge  of  public  duties. 
Let  us  know,  when  we  are  putting  this  thing  in  the  Constitution,  what  this  thing 
does  mean.  So  that  we  people  who  cannot  understand  always  what  the  committee 
does  mean  may  be  able  at  least  to  have  a  reasonable  idea  of  what  we  have  to  meet. 

Again,  now  this  commission  is  charged  "with  the  duty  of  supervising,  regulat- 
ing, and  controlling  all  transportation  and  transmission  companies,  doing  business  in 
this  State,  in  all  matters  relating  to  the  performance  of  their  public  duties  and  of 
their  charges  therefor,  and  of  correcting  abuses  therein  by  such  companies;  and  to 
that  end  the  said  commission  shall,  from  time  to  time,  prescribe,  and  enforce  against 
such  companies  in  the  manner  hereinafter  authorized,  such  rates  of  charges,  classi- 
fication of  freights,  and  rules  and  regulations,  and  shall  require  the  companies  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIO^'  OE  VIRGIXIA. 


2347 


establish  and  maintain  such  public  service,  facilities,  and  conveniences  as  the  said 
commission  may,  within  the  limitations  of  the  Constitution  of  this  State  and  of  the 
United  States,"  etc. 

Just  one  moment  before  we  get  away  from  '-'rules  and  regulations."  Every  rail- 
road company  in  Virginia  is  required  to  have  rules  and  regulations.  If  they  do  not 
have  them  it  is  negligence,  and  they  are  held  responsible  for  that  by  the  courts. 
Suppose  this  commission  makes  rules  and  regulations  and  they  have  not  the  respon- 
sibility of  their  execution.  Suppose  you  have  a  commission  which  is  not  competent, 
no  matter  hov^  honest  in  purpose,  and  they  make  rules  and  regulations  for  these 
companies,  and  they  v/ork  under  them  and  people  are  hurt  and  killed.  Is  it  right 
that  the  power  and  the  responsibility  should  be  separated? 

Mr.  Meredith:  You  do  not  mean  to  say  that  the  rules  and  regulations  connected 
with  public  duties  are  rules  and  regulations  of  a  personal  nature? 

Mr.  Hamilton:    I  do. 

Mr.  Meredith:  Those  of  a  personal  nature?  As  to  how  the  conductor  shall  act 
toward  the  brakema^n  or  engineer  to  the  fireman? 

Mr.  Hamilton:  I  do,  sir.  I  see  no  limitation  upon  it  at  all.  If  it  is  the  duty  of 
this  great  Constitutional  Convention  to  pass  a  statute  called  the  employers'  liability 
bill,  I  cannot  see  why  we  cannot  properly  construe  rules  and  regulations  as  used  in 
this  report,  as  rules  and  regulations  which  should  be  prescribed  by  the  commission 
and  laid  down  to  such  a  transportation  company  for  the  government  of  its  employees 
in  the  discharge  of  their  duties.  On  the  contrary,  I  have  not  the  slightest  doubt  that 
that  power  would  embrace  the  right  to  lay  down  such  rules  and  regulations.  I  do 
not  believe  these  gentlemen  mean  it,  but  it  is  only  an  illustration  of  the  enormous 
quantity  of  stuff  in  this  report  which  they  do  not  mean,  and  with  due  deference  to 
the  gentleman  from  Pulaski,  do  not  understand. 

Now,  in  addition  to  the  rules  and  regulations,  the  report  goes  on,  "and  shall  re- 
quire them  to  establish  and  maintain  all  such  public  service,  facilities,  and  conveni- 
ences, as  the  said  commission  may,  within  the  limitations  of  the  Constitution  of  this 
State  and  of  the  United  States,  deem  reasonable  and  just." 

In  other  words,  they  may  say  to  a  railroad  company  in  Virginia,  "You  added  a 
thousand  freight  cars  to  your  equipment  last  year,  but  still  you  need  tv/o  thousand 
more.  Get  them  in  six  months,  and  if  you  do  not  get  them,  then  we  will  fine  you 
$500  a  day  and  count  each  day  a  separate  offense." 

Well,  it  is  not  practicable  and  easy  to  buy  any  such  amount  of  equipment  as 
that  or  to  pay  for  it.  Often  the  financial  condition  of  the  company  will  not  permit  it. 
And  there  are  certain  seasons  of  the  year  when  traffic  is  far  more  pressing  and  de- 
manding greater  facilities  than  at  other  times  in  the  year.  Are  you  to  have  such  an 
equipment  as  to  enable  you  to  keep  sufficient  cars  always  to  furnish  those  facilities, 
■and  yet  for  three-quarters  of  the  year  have  to  have  half  of  them  idle? 

I  do  not  think  that  has  been  contemplated  by  these  gentlemen  who  have  framed 
this  report.  That  is  not  all.  They  are  not  to  furnish  such  public  service,  facilities, 
ajid  conveniences  as  may  be  just  and  reasonable,  but  it  is  what  the  COMMISSION 
"MAY  DEEM  just  and  reasonable. 

And  then  they  say  that  they  have  furnished  something  that  is  a  great  safeguard 
in  an  appeal  from  the  commission  to  the  Court  of  Appeals.  Pray,  what  is  the  criterion 
of  duty  there?  What  could  the  Court  of  Appeals  do  in  a  case  of  that  kind?  Sup- 
pose you  went  to  the  Court  of  Appeals  and  said.  "This  commission  required  me  to 
furnish  a  thousand  more  freight  cars  in  six  months  to  do  my  business,  but  I  could 
not  get  them  in  time,"  or  "did  not  have  the  money  to  pay  for  them.  My  business 
would  not  justify  it."  Suppose  the  railroad  took  an  appeal  to  the  Supreme  Court 
from  such  an  order,  and  alleged  that  it  is  not  reasonable,  it  is  not  just.  The  Court 
of  Appeals  would  say,  "Why,  Mr.  Railroad  Company.  I  am  very  sorry  for  you.  The 
thing  is  unjust.    It  is  wrong.    But  the  criterion  of  justness  and  reasonableness  is  not 


/ 


2348  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

for  US.  It  is  whether  the  commission  deems  it  reasonable  or  just,  not  whether  we 
deem  it  reasonable  or  just.  They  have  said  it  is  reasonable  and  just.  It  is  true 
that  the  form  of  an  appeal  is  given,  but  we  have  no  earthly  means  of  knowing  how 
to  overrule  the  decision  of  the  commission  when  the  criterion  of  the  decision  is  what 
they  think,  and  not  what  we  think."  I  think  that  is  of  all  things  that  I  have  ever 
seen  in  the  nature  of  a  requirement,  with  an  alleged  appeal  to  correct  the  defect,  the 
most  absurd  thing,  if  I  may  use  the  term  with  respect  and  deference  for  the  gentle- 
men who  have  approved  the  report.  What  is  the  sense  of  telling  me  that  I  may 
appeal  from  the  decision  of  this  gentleman  here  to  that  gentleman  there,  when  what 
the  gentleman  appealed  from  thinks  is  to  be  the  criterion  of  conduct  and  of  action? 
Now,  coming  along  as  the  report  reads: 

The  said  commission  shall  also  have  the  right  at  all  times  to  inspect  the  books 
and  papers  of  all  transportation  and  transmission  companies  doing  business  in  thos 
State,  and  to  require  from  such  companies,  from  time  to  time,  special  reports  and 
statements  under  oath,  concerning  their  business. 

That,  gentlemen,  I  respectfully  submit  to  you,  is  wrong.  I  do  not  mean  to  say 
that  the  commission  should  not  have  the  power  for  public  purposes,  for  the  purposes 
of  requiring  these  companies  to  perform  their  public  duties,  to  inspect  their  books 
and  papers  and  require  these  statements,  but  it  is  net  limited  to  that.  I  have  known, 
in  my  experience,  and  I  have  known  of  it  oftentimes  otherwise,  when  people  for  ulte- 
rior, and  not  public  purposes,  desire  to  know  what  was  in  the  books,  especially  what 
was  in  the  stock  ledger  of  a  railroad  company  or  other  corporations.  I  have  known 
when  they  made  a  demand  to  see  how  the  stock  was\held.  I  have  known  when  a 
man  wanted  to  bring  a  suit  against  a  company,  and  had  no  stock  in  the  company, 
that  he  would  make  a  demand  and  try  to  see  what  was  the  status  in  which  the  stock 
stood  on  the  books  of  the  company  in  order  to  bring  a  suit  upon  an  alleged  owner- 
ship of  stock  by  him  twenty  or  thirty  years  before,  and  there  is  a  gentleman  in  this 
room  who  knows  that  fact. 

Do  you  mean  to  put  in  the  hands  of  this  commission  the  power  to  subserve  the 
purposes  of  private  individuals  in  connection  with  such  a  matter  as  that?  I  do  not 
think  you  do.  Therefore,  there  should  be  a  correction  there,  that  it  shall  be,  "inso- 
far as  it  may  be  necessary  to  enable  said  commission  to  enforce  the  performance  of 
the  public  duties  of  such  corporation." 

Now,  the  next  clause  is  one  which  I  most  cordially  approve  in  this  same  section. 
It  is  a  clause  which  is  intended  to  prevent  unjust  or  unreasonable  discriminations  of 
any  transportation  company  against  any  person,  locally,  community,  connecting  line 
or  kind  of  traffic,  in  the  matter  of  car  service,  train  or  boat  schedules,  efficiency  of 
transportation,  or  otherwise  in  connection  with  the  public  duties  of  such  company. 

Particularly  do  I  approve  that  with  reference  to  traffic  matters.  I  do  not  mean 
to  say  that  if  that  is  put  in  it  will  give  all  the  relief  that  the  localities  ask.  This 
country,  unfortunately  for  us,  is  too  large  for  us  to  legislate  to  correct  all  the  errors 
and  defects  when  we  notice  them  in  practice  in  respect  to  such  matters.  It  is  too 
large.  If  you  were  really  to  put  in  and  enforce  what  might  be  called  the  long  and 
short-haul  clause,  absolutely  according  to  distance,  it  might  be  a  great  deal  better 
for  people  nearest  to  the  great  markets  of  the  world,  and  might  mean  ruin  to  the 
people  far  from  the  seaboard;  the  man  in  Minnesota  or  the  Mississippi  Valley,  or 
even  in  Ohio,  would  have  to  burn  his  corn  and  wheat.  He  could  not  afford  to  pay  the 
transportation  upon  it  to  the  markets  of  the  world. 

Now,  we  cannot  sit  down  here  in  a  little  State  like  Virginia — I  do  not  use  the 
word  little  in  any  sense  of  depreciation — but  it  seems  to  me  it  is  the  heighth  of 
folly  for  us  to  stand  here  and  fight  against  the  conditions  of  this  great  country,  con- 
ditions which  we  cannot  control  by  laws  made  within  the  limits  of  the  State.  We 
would  have  another  civil  war  if  we  were  to  undertake  to  say  to  the  man  west  of  tha 
Alleghany  mountains,  or  west  of   the   Mississippi,  or  in  the  Mississippi  Valley  any- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  2349 

where,  that  he  could  not  market  his  crops  except  by  paying  in  proportion  to  distance 
to  Newport  News,  or  New  York,  or  Baltimore,  the  cost  of  sending  it  from  some  nearer 
point  east  of  the  mountains. 

We  need  not  try  to  do  that.  You  may  go  on  and  destroy  your  own  transpor- 
tation companies,  you  may  greatly  injure  them,  and  hinder  them  hy  unjust  laws, 
but  you  will  never  accomplish  any  such  purpose  as  that. 

I  think  that  it  is  absolutely  abominable  and  without  excuse,  and  an  unmitigated 
evil  that  any  transportation  company  should,  without  some  real  reason  and  justifi- 
cation, make  a  difference  in  rates  between  one  place  and  another  under  the  same 
conditions  and  circumstances.  And  that  is  the  defect  of  this  bill  to  a  large  extent. 
They  have  dropped  out  of  this  bill  what  has  been  recognized  as  an  essential  thing  in 
the  commerce  of  the  country,  in  the  great  commerce  of  the  country.  They  leave  out 
of  this  article  the  provision  with  respect  to  the  matter  being  under  practically  simi- 
lar conditions  and  circumstances.  And  that  is  a  necessity.  You  cannot  help  it.  As 
I  say,  you  may  ruin  and  injure  your  agents  of  transportation,  but  you  will  never  get 
any  such  relief  as  you  expect  or  hope  for  unless  you  propose  to  destroy  the  people 
further  from  the  markets  of  the  world. 

We  will  take  a  case  like  the  Danville  case.  I  can  readily  see,  although  I  know 
nothing  about  transportation  rates,  any  more  about  rates  than  you  do  scarcely,  yet 
1  can  readily  see  that  to  those  people  it  seems  an  intolerable  outrage  for  stuff  shipped 
from  the  West  and  Northwest  a  long  distance  to  be  carried  through  Danville  and 
delivered  in  Lynchburg  at  a  lower  rate  than  it  is  delivered  in  Danville  for.  I  must 
confess  it  looks  like  an  outrage  to  me.  My  prima  facie  feeling  is  of  rebellion  when 
I  see  anything  of  that  kind,  but  when  I  hear  the  reasons  for  it,  I  must  confess  I  do 
not  know  how  to  stop  it  in  that  particular  interstate  work.  It  is  perfectly  plain  to 
me,  from  v/hat  I  have  heard  of  that  case — and  I  never  heard  of  it  until  I  came  here, 
except  seeing  something  in  the  newspapers  about  it — it  is  perfectly  plain  to  me  that 
if  the  Southern  Railway  Company  ceased  to  do  the  business  or  to  take  part  in  that 
business  from  the  west  of  Lynchburg,  as  it  must  do  if  it  lowered  the  rates  further 
down,  it  would  simply  lose  Lynchburg's  business,  and  Lynchburg's  business  would 
then  go  to  the  Chesapeake  and  Ohio  and  the  Norfolk  and  Western,  unless  the  South- 
ern Railway  brought  that  business  in  from  Washington,  which  I  think  would  be  a 
natural  thing.  But  the  whole  trouble  arises  from  this.  It  arises  from  the  fact  that 
the  Southern  Railway  Company,  rather  than  not  get  some  of  the  Ljmchburg  business 
at  all,  is  willing  to  haul  it  a  third  further  than  the  Norfolk  and  Western  or  the 
Chesapeake  and  Ohio  and  take  it  through  Danville  and  carry  it  to  Lynchburg,  and 
it  must  carry  it  there  at  the  same  rate  as  the  Chesapeake  and  Ohio  and  the  Norfolk 
and  Western  carry  it,  or  get  out  of  the  business. 

Suppose  the  Southern  Railway  gave  up  the  Lynchburg  business,  would  it  aid 
Danville,  so  far  as  the  actual  payment  of  money  is  concerned?  Not  a  particle.  The 
Danville  rate  is  not  claimed  to  be  unreasonable  or  unjust.  It  is  merely  claimed  that 
there  is  an  unjust  discrimination  in  favor  of  Richmond  and  Lynchburg  as  against 
Danville,  and  it  looks  so  at  first  blush,  and  I  believe  it  is  so  in  its  effect,  because  it 
enables  Richmond  and  Lynchburg  to  undersell  Danville  in  the  same  territory  thai 
they  both  seek  their  trade  in. 

But  it  is  an  interstate  question,  and  what  we  are  discussing  here  has  no  earthly 
bearing  upon  it  at  all,  unless  you  propose  to  put  the  sanction  of  your  approval  upon 
what  looks  to  me  like  a  regular  blackmailing  speech  of  that  member  of  the  commis- 
sion of  Georgia  that  was  cited  here  by  the  gentleman  from  Halifax,  and  the  gentle- 
man from  Danville,  when  he  called  up  the  Georgia  railroads  and  told  them  that  he 
could  not  interfere  with  their  interstate  rates  about  coal,  but  that  if  they  did  not  do 
what  the  commission  wanted  about  those  coal  rates,  that  the  commission  would  cut 
them  down  below  what  the  commission  had  said  was  a  just  rate  for  the  local  traffic. 
I  do  not  take  it  that  this  Convention  is  deliberately  going  to  put  its  approval  upon 
any  such  proceeding  or  method  of  procedure  as  that. 


2350 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYENTIOX  OF  YIRGIXIA. 


If  it  is  true  that  there  is  a  discrimination  against  the  town  of  Danville — the  city 
of  Danville,  I  beg  its  pardon — in  local  rates  within  the  State  of  Virginia,  as  com- 
pared with  Lynchburg  or  Richmond,  or  South  Boston,  I  think  they  are  right  in. 
fighting,  and  fighting  bitterly,  and  I  think  such  things  ought  to  be  corrected,  and,  as 
I  understand,  the  law  exists  to-day  whereby  it  can  be  corrected,  and  whereby  it  can 
be  corrected  in  the  future  without  putting  our  prosperity  in  jeopardy,  I  mean  a& 
to  Virginia,  which  depends  for  her  prosperity  and  continuance  of  prosperity  upon 
the  building  of  transportation  lines. 

I  do  not  propose  to  go  into  the  business  here  of  undertaking  to  do  v/hat  gentle- 
men have  described  as  trying  to  frighten  the  people.  I  do  not  believe  in  it.  You  are 
all  grown  men  and  you  can  think  for  yourselves,  and  you  know  perfectly  well  that 
unjust,  unequal,  arbitrary  laws,  not  based  upon  what  is  right  or  what  is  just,  and 
without  the  means  of  justly  correcting  them,  tends  inevitably  to  check  the  develop- 
ment, when  development  has  to  come  through  means  of  this  kind.  This  is  too  great 
and  too  big  a  country  for  people  to  voluntarily  go  where  injustice  is  habitual  and 
is  approved. 

Now,  the  first  clause  of  that  section — I  read  from  line  61  of  Section  4 — after 
saying  that,  "subject  to  review,  on  appeal,  as  hereinbefore  provided"' — it  is  "herein- 
before," but  it  should  be  "hereinafter" — it  says,  "to  prescribe  rates  of  charges  and 
classification  of  trafiic  for  transportation  and  transmission  companies,  shall  be  para- 
mount." 

That  is,  that  the  Legislature,  the  direct  representatives  of  the  people,  shall  never 
have  any  right  to  have  a  say  on  that  point — it  goes  on  to  say  

But  its  authority,  which  is  the  commission's  authority,  to  prescribe  any  other 
rules,  regulations,  and  requirements  for  such  companies  shall  be  subject  to  the 
superior  authority  of  the  General  Assembly  to  legislate  thereon  by  general  laws. 

And  then  there  is  something  about  street  railways,  etc. 

In  other  words,  gentlemen,  whenever  it  is  possible  to  confer  a  power,  either  di- 
rectly by  virtue  of  the  Constitution  upon  this  commission,  in  large  words  and  in  ma- 
terial matters,  it  is  conferred.  The  absolute  distrust  of  the  Legislature  is  shown  in 
saying  that  the  authority  of  the  commission  as  to  charges  and  rates  shall  be  para- 
mount, but  in  trifling,  immaterial  matters  the  Legislature  may  hereafter  have  a  say. 
But  I  call  your  attention  to  the  fact  that  in  no  material  matter  even  of  form  or  pro- 
cedure, is  there  any  authority  in  this  paper  for  the  representatives  of  the  people, 
elected  to  its  legislative  body,  to  have  one  word  to  say  unless  that  word  is  recom- 
mended by  this  body,  this  com-bination  of  prosecutor,  court,  and  legislator. 

I  now  read  from  the  line  105  of  Section  4: 

Any  corporation  failing  or  refusing  to  obey  any  valid  order  or  requirement  of 
the  said  commission,  may  be  fined  by  said  commission  (proceeding  by  due  process 
of  law,  as  aforesaid,  such  sum,  not  exceeding  $500,  as  the  said  commission  may  deem 
proper,  or  such  sum.  in  excess  of  $500.  as  may  be  prescribed  or  authorized  by  law; 
and  each  day's  continuance  of  such  failure  or  refusal,  after  due  service  upon  said 
corporation  of  the  order  or  requirement  of  the  said  commission  in  question,  shall  be 
a  separate  offence. 

Now,  let  us  see  whether  that  is  reasonable  and  properly  drawn.  If  it  is  to 
carry  out  what  I  presume  was  the  intention  of  the  framers,  we  will  say  that  an  order 
may  be  entered  by  the  Corporation  Commission  requiring  some  railroad  to  furnish 
some  cars  at  some  place,  or,  to  take  a  better  illustration,  that  a  new  rate  is  put  into 
force.  That  rate  may  be  put  in  force,  and  immediately  after  it  is  put  in  force — and 
remember  it  is  not  a  wilfull  failure  that  is  thundered  against  here — for  one  day  to 
change  that  rate  is  an  offense  for  which  the  company  may  be  fined  five  hundred  dol- 
lars. If  it  is  impracticable  to  put  that  rate  into  force  and  effect  with  all  due  dili- 
gence and  good  faith  for  four  or  five  days,  it  is  not  that  the  commission  "may"  con- 


DEBATES  OF  THE  COXSTITETIOXAL  COXVEXTIOX  OF  YIEGIXIA.  2351 

sider  each  dav  a  separate  offense,  but  it  '---shan.''  I  say  that  is  net  a  reasonable  re- 
quiremeni.  It  is  not  properly  drawn  consistently  with  the  facts  which  cannot  be 
changed,  the  actual  conditions  of  business.  I  say  that  it  should  read,  '-'Any  corpo- 
ration failing  or  refusing  within  a  reasonable  time  to  comply  with  or  obey  any  valid 
order.-  and  instead  of  saying  that  each  day's  failure  or  refusal  "shall  be"  a  separate 
offense,  it  should  read,  ''''may  be  deeired  by  the  commission  a  separate  offense.-"'  It 
is  a  small  matter.  It  is  a  failure  in  draughtsmanship,  and  I  mention  it  with  great 
deference  and  fear,  that  I  may  give  oSense  in  criticism  of  this  perfect  report. 

Now,  in  order  to  cure  apparently  this  trouble  here  in  thus  controlling  and  man- 
aging the  auairs  of  everything  connected  with  thesre  companies  an  amendment  has 
been  added,  and  I  have  been  so  fortunate  as  to  get  one.  It  is  to  come  in  at  the  end 
of  Section  c  of  paragraph  4— sub-division  c  of  para^aph  4.    Let  us  see  what  it  is. 

It  is  made,  apparently,  to  meet  the  criticism  that  has  been  made  upon  this  bill 
that  they  have  taken  all  power  from  the  companies  and  yet  left  them  with  all  the 
responsibilities.    Let  us  read  it. 

Nothing  contained  in  Section  4  shall  impair  or  abridge  the  full  and  absolute 
right  of  any  corporation,  without  interference  or  restriction  to  manage  and  operate 
its  own  property  and  franchise. 

Now.  here  is  the  ?ting  in  the  tail  of  the  amendment,  just  as  there  is  the  sting  in 
the  tail  of  the  amendments  to  the  Federal  Constitution  when  it  was  provided  that 
Congress  should  have  the  power  to  enforce  those  amendments.  "''Subject  to  the  pro- 
visions of  this  Constitution,  and  such  just  and  reasonable  control  rule,  regulations, 
and  requirements  as  may  be  prescribed  by  law  in  pursuance  thereof."' 

in  other  words,  the  criticism  is,  that  you  have  taken  all  control  and  all  man- 
agement from  the  companies,  if  you  choose  to  exercise  it,  because  they  say  so,  but 
feeling  the  force  of  that  criticism,  they  say,  ''Oh.  no,  that  is  not  what  we  meant.  It 
don't  mean  that  you  shall  not  manage  your  property  and  control  it,  and  all  that  sort 
of  thing,  but  it  must  be  subject  to  the  provisions  of  this  Constitution."' 

In  other  words,  gentlemen,  it  is  a  hone  held  out  by  words  and  turns  to  nothing 
when  you  come  to  it.  It  is  meaningless.  Strike  out  of  it  the  words  ''subject  to  the 
provisions  of  this  Constitution."  This  is  a  part  of  the  Constitution.  Strike  out  of 
it  "subject  to  the  provisions  of  this  Constitution,"'  and  then  it  will  mean  what  most 
people  would  think  it  would  mean  upon  a  casual  examination.  If  you  put  that  in, 
it  is  utterly  valueless  and  of  no  good  whatever.  It  is  utterly  meaningless.  It  is 
an  attempt,  but  it  is  not  a  satisfactory  attempt,  to  denne  what  is  meant  by  control, 
and  it  was  put  in  for  that  purpose.  It  practically  says,  "Xo.  we  do  not  mean  to  con- 
trol you,  but  you  can  control  yourself,  except  that  you  must  do  it  subject  to  what  we 
say  about  our  control."    That  is  about  the  substance  of  it.    It  is  utterly  valueless. 

Now,  there  was  a  criticism  of  the  fact  that  when  this  ordinance  was  drawn  and 
presented  here  there  was  no  appeal  allowed  from  the  arbitrary  action  of  these  com- 
missioners except  that  relating  to  the  rate-making  question.  That  was  criticised 
justly  and  properly,  and  the  force  and  effect  of  those  criticisms  was  felt.  So.  in 
order  to  correct  that,  we  have  on  page  11  under  the  head  of  Appeals,  etc..  the  section 
dealing  with  certain  amendments  put  in.  I  read  now  from  the  report:  '"From  any 
action  of  said  commission  prescribing  charges  or  classifications  of  traffic" — that  was 
all  in  there  before  the  amendment  was  put  in — •"an  appeal  may  be  taken,"  etc. 

Now.  there  has  been  added  to  that,  after  the  word  ''"traffic,"  '''or  affecting  the 
train  schedule  of  any  transportation  company,  or  requiring  any  additional  facilities, 
conveniences  of  public  service  of  any  transportation  or  transmission  company." 

And  that  is  carried  through  in  the  various  provisions  of  the  sub-section.  But, 
gentlemen,  that  does  not  cover  every  subject  by  any  means  on  which  an  appeal 
should  be  allowed.  It  does  not  begin  to  cover  every  one  of  them.  TVhy,  if  it  is  really 
intended  that  there  shall  be  a  supervisory  appeal  and  the  power  to  pass  upon  the 


2352  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

actions  of  this  conglomerate  body  that  is  established  here,  why  should  it  not  be  pro- 
vided that  an  appeal  should  be  had  in  every  case  from  the  action  of  the  commission? 
Why  should  it  be  that  they  should  have  the  right  to  do  things  that  might  destroy  the 
company,  and  have  your  appeal  limited  to  a  few  things,  and  yet  leave  enough  in 
them  to  ruin  and  destroy  the  railroad?  That  is  not  a  part  of  civilized  jurisprudence; 
that  is  not  in  accordance  with  the  jurisprudence  of  any  English-speaking  race.  We 
have  been  a  people  who  have  been  accustomed  in  all  our  rights  to  have  justice,  to 
have  the  right  of  appeal,  to  have  a  chance  to  have  our  wrongs  corrected  in  an  or- 
derly manner,  in  the  tribunals  established  for  that  purpose.  But  here  you  establish 
an  arbitrary  tribunal,  not  a  judicial  tribunal  in  any  proper  sense  of  the  term,  not  a 
tribunal  like  the  Court  of  Appeals,  which  is  not  interested  in  the  initiation  of  the 
proceedings,  not  interested  in  anything  that  may  come  before  it,  but  simply  sitting 
there  coolly  and  calmly  to  hear  whatever  may  be  brought  up  by  one  side  or  the  other. 
But  we  have  established  a  tribunal  that  has  first  to  ferret  out  the  case,  the  insti- 
gator of  the  proceeding,  the  prosecutor  of  the  proceeding,  and  then  it  is  to  come  before 
that  tribunal  that  is  to  sit  upon  it  as  judge,  and,  great  God,  what  a  judgment  it  must 
be!  And  then,  in  many  respects,  no  appeal  shall  be  had  from  its  judgment,  and  in 
one  respect,  the  respect  most  important  to  the  people  of  Virginia,  and  -the  only  re- 
spect in  which  they  have  the  slightest  interest  in  this  subject,  or  wish  to  have,  in  re- 
spect to  traffic  rates,  etc.,  and  facilities,  etc.,  the  criterion  of  judgment  in  the  commis- 
sion is  what  they  deem  just,  not  what  is  just,  nor  what  is  right,  but  v/hat  they  deem 
to  be  right  and  just,  they  who  are  the  prosecutors  and  judges  both. 

Is  that  the  sort  of  jurisprudence,  is  that  the  sort  of  tribunal,  this  Convention 
proposes  to  put  upon  even  the  meanest  creature  or  the  meanest  kind  of  property  in 
our  State? 

In  Sub-division  F  of  Section  4,  page  13,  it  is  provided: 

But  the  General  Assembly  shall  provide  by  law  for  the  certification  by  said  com- 
mission to  the  appellate  court  of  all  the  facts  or  evidence  upon  which  the  action 
appealed  from  was  based,  and  which  may  be  essential  for  the  proper  decision  of  the 
appeal  therefrom. 

It  seems  to  me,  gentlemen  of  the  committee,  that  when  we  are  making  a  statute 
in  a  Constitution  we  should  not  make  part  of  a  statute  and  have  part  of  it  depen- 
dent upon  the  action  of  the  General  Assembly  as  to  details.  It  is  left  to  the  General 
Assembly  to  require  even  that  this  commission  shall  give  you  the  means  of  appeal- 
ing to  the  court,  and  yet,  unless  I  am  mistaken,  the  learned  chairman  of  this  com- 
mittee, in  presenting  this  report,  stated,  in  substance,  that,  while  the  railroads  could 
prevent  action  by  the  General  Assembly,  they  could  not  get  affirmative  action.  You 
hold  out  the  hope  of  an  appeal.  You  say,  "We  will  give  you  an  appeal";  and  yet, 
when  it  comes  to  the  point  of  saying  that  you  shall  have  the  means  of  appealing, 
that  you  shall  have  the  right  to  get  your  evidence  before  the  upper  court,  you  do 
not  give  that  right.  You  say,  "The  General  Assembly  shall  give  it,"  and,  at  the  same 
time,  the  chairman  of  this  committee  says  that  your  railroads  cannot  get  anything 
aflarmative  done  by  the  General  Assembly,  but  that  they  can  prevent  some  things 
being  done. 

Why  do  you  make  this  distinction?  Why,  when  you  are  making  a  statute  here 
to  carry  out  something  which  you  say  the  General  Assembly  will  not  do,  contrary  to 
its  duty,  as  you  say;  why,  when  it  comes  to  even  getting  a  chance  for  a  fair  hear- 
ing before  a  fair  tribunal,  do  you  make  the  instrumentality  by  which  you  are  to  get 
tliat  hearing,  the  certificate  of  facts  or  the  evidence  certified,  dependent  upon  the 
affirmative  action  of  the  General  Assembly  hereafter  to  be  had,  if  it  can  be  had? 

Mr.  Meredith:  You  have  stated  that  this  bill  ought  to  be  definite,  and  that  we 
should  not  leave  it  to  the  Legislature  to  say  what  shall  be  the  character  of  the  appeal. 
Now,  I  call  your  attention  to  the  fact  that  the  same  course  is  pursued  as  to  all  ap- 
peals. 


DEBATES  OE  THE  COX ?TITUTIOXAE  COXVEXTIOX  OE  VIRGINIA. 


2353 


Mr.  Hamilicn:  Well.  now.  Mr.  Chairman.  I  respectfully  differ  from  the  gen- 
tleman. I  say  that  there  is  no  other  case  existing  under  our  laws  in  which  the 
power  has  been  taken  from  the  Legislature  to  deal  in  detail  with  a  subject  as  has 
been  done  here,  and  then  the  right  left  to  get  any  relief  from  that  sort  of  treatment 
in  the  Constitution  by  being  dependent  upon  the  future  action  of  the  Legislature. 
I  say  that  it  is  consistent  and  proper,  if  you  are  going  to  make  a  statute  in  your 
Constitution,  that  you  should  make  it  a  complete  and  a  just  statute,  and  a  r^atute 
which,  will  give  the  relief  which  nominally  you  give.  That  you  should  not  leave  that 
relief,  which  is  an  essential  part  of  the  whole,  to  be  performed  by  a  body  which  your 
chairman  says  cannot  be  gotten  to  give  affirmative  legislation  for  the  railroads. 

Mr.  Braxton:  You  evidently  misapprehend  what  I  said.  I  did  not  say  that  the 
railroads  could  get  no  affirmative  legislation.  I  said  .  that  they  frequently  defeated 
the  will  of  the  people  by  preventing  legislation  that  the  people  wanted;  that  they 
could  not  defeat  the  will  of  the  people  by  getting  legislation  that  the  people  opposed, 
but  that  when  the  people  do  not  oppose  the  legislation  that  the  railroads  want,  I 
do  not  see  that  there  would  be  any  trouble  about  getting  it. 

Mr.  Hamilton:  TMiy,  when  you  undertake  to  give  this  relief,  did  you  not  put  it 
in  the  shape  of  a  positive  statement  in  this  paper  which  you  have  drawn. 

Mr.  Braxton:    I  thought  it  was  an  unnecessary  detail  to  put  into  a  Constitution. 

Mr.  Hamilton:  In  the  same  paragraph,  on  page  14.  lines  ISS  and  1S9,  it  is  pro- 
vided that  in  the  hearing  of  this  appeal  in  the  Court  of  Appeals  a  statement  of  the 
reasons  given  by  the  Corporation  Commission  for  its  judgment,  from  which  an  ap- 
peal is  taken,  shall  always  be  read  and  considered  by  the  appellate  court  upon  dis- 
posing of  the  appeal.  '"And  the  action  of  the  commission  appealed  from  shall  be  re- 
garded as  prima  facie  just,  reasonable,  and  correct? 

In  ether  words,  an  appeal  is  taken,  and  they  say  that  the  reasons  given  for  the 
appeal  shall  be  prima  facie  deemed  not  only  correct,  not  only  that  it  shall  stand  until 
reversed,  like  any  other  judgment,  but  that  it  shall  be  deemed  prima  facie  correct, 
just;  and  reasonable,  and  yet  on  the  question  of  furnishing  facilities  and  other  in- 
strumentalities connected  with  the  work  of  these  transportation  companies,  the  cri- 
terion laid  down  is  that  whatever  the  commission  deems  just  and  reasonable  is  to 
stand. 

"\^'as  there  ever  such  a  farce  on  earth  as  an  appeal  under  those  conditions,  that 
what  the  commission  deems  just  is  to  prevail;  that  whatever  they  deem  reasonable 
and  just  is  to  be  the  criterion,  and  that  when  they  decide  the  matter  that  there  is 
to  be  a  prima  facie  presumption  that  the  reason  they  give  are  reasonable  and  just 
and  correct? 

I  recognize,  gentlemen,  that  it  may  be  tiresome,  and,  indeed,  I  knov.-  it  is  tire- 
some to  hear  these  details,  but  we  have  to  go  over  them. 

Mr.  Meredith:    Is  not  that  the  effect  of  the  verdict  of  a  jury? 

Mr.  Hamilton:    Yes,  but  it  is  not  the  effect  of  a  judgment  of  a  court. 

Mr.  Meredith:     Is  not  the  decision  of  the  lower  court  presumed  to  be  correct? 

Mr.  Hamilton:  It  stands  until  it  is  corrected,  but  there  is  no  prima  facie  pre- 
sumption in  favor  of  it. 

Sub-section  G,  on  page  14,  provides,  when  the  Court  of  Appeals  does  reverse  or 
enter  an  order  on  appeal  from  this  commission,  the  following: 

Such  substituted  order  shall  have  the  same  force  and  effect  (and  none  other) 
as  if  it  had  been  entered  by  the  commission  at  the  time  the  original  order  appealed 
from  was  entered. 

I  mean  to  say  the  lines  I  read  seem  to  me  to  be  subject  to  the  criticism  that  imme- 
diately after  the  Court  of  Appeals  had  said  what  was  right  and  proper,  if  it  ever 
gets  that  chance,  that  that  order,  which  it  enters,  will  be  entered  as  of  the  date  it 
should  have  entered  by  the  commission,  some  time  before,  nunc  pro  tunc,  and  that 


2354  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  very  next  day  the  commission  can  undo  and  revoke  that  order  by  an  immaterial 
and  minute  change. 

I  do  not  think  that  is  a  proper  provision.  I  think  there  should  be  something 
that  would  put  into  force  and  effect  the  decision  of  the  Court  of  Appeals  after  it  has 
entered  a  substitute  order  on  an  appeal. 

Now,  in  Section  h,  page  15,  it  is  provided  that  '"The  right  of  any  person  to  in- 
stitute and  prosecute  in  the  ordinary  courts  of  justice,"  etc.,  etc.  It  provides  further, 
"In  no  such  proceeding  by  any  person  against  such  corporation  shall  the  reasonable- 
ness, justice  or  validity  of  any  charge,  classification  of  traffic,  rule,  regulation  or  re- 
quirement theretofore  prescribed  by  said  commission  within  the  scope  of  its  au- 
thority be  questioned." 

Now,  Mr.  Chairman,  when  I  first  looked  at  that,  I  thought  it  was  the  old  familiar 
rule  that  you  could  not  in  a  proceeding  between  different  parties  attack  collateraJly 
the  validity  of  ordinances  and  laws,  etc.,  but  when  I  come  to  consider  the  effect  of 
this  in  this  particular  case,  we  might  find  this  to  be  the  case:  To-day  a  rule  might 
be  entered  by  this  commission  saying  that  certain  things  should  or  should  not  be 
done  with  respect  to  rates  on  traffic,  with  respect  to  employees,  with  respect  to  the 
method  by  which  they  should  be  governed  with  regard  to  their  duties,  whereby,  pos- 
sibly, some  one  might  be  hurt.  That  might  be  an  exceedingly  wrong  rule  and  re- 
quirement on  the  part  of  the  commission,  and  there  should  be  an  opportunity  at  any 
rate  of  an  appeal  from  that  ruling^  to  question  its  reasonableness  and  justice  and 
validity.  The  next  day  there  may  be  a  case  arising,  under  ^hat  rule,  and  a  suit 
brought  against  the  transportation  company,  the  whole  foundation  of  which  would 
be  the  requirement,  or  rule,  yet  you  could  not  question  the  justice  and  reasonable- 
ness of  that  requirement,  that  you  were  taking  an  appeal  from  the  upper  court,  if 
you  had  the  right  to  take  an  appeal. 

I  think  it  is  very  loosely  drawn  and  will  lead  to  trouble  and  injustice. 

As  to  Sub-section  1,  page  16,  I  do  not  dwell.  It  is  the  section  which  says  that 
upon  the  recommendation  of  this  commission  the  General  Assembly  may  change 
some  of  these  sub-sections.  It  is  the  section  which  shows  most  strikingly  what  this 
commission  is,  namely,  that  it  is  the  prosecutor,  the  initiator  of  the  complaint,  the 
judge  of  the  justice  of  the  complaint,  and  the  legislator  to  change  the  method  of  get- 
ting at  it  if  any  change  is  ever  made. 

The  gentleman  from  Roanoke  has  so  fully  and  strongly  shown  what  I  claim  to 
be,  with  all  due  respect,  the  viciousness  of  that  section,  that  I  will  consume  no  more 
time  about  it.  Now,  Mr.  Chairman,  I  believe  that  section  about  finishes  the  particu- 
lar portions  of  this  report  which  bear  upon  transportation  and  transmission  com- 
panies. 

In  the  next  provision.  Section  5,  we  come  to  a  general  provision  with  respect  to 
the  management  of  corporations,  and  it  affects  all  sorts  of  corporations,  foreign  and 
domestic,  doing  business  in  Virginia.  It  requires  that  general  law  shall  be  made  for 
the  payment  of  a  fee  to  the  Commonwealth  by  the  domestic  corporations  upon  the 
granting,  amendment  or  extension  of  its  charter,  and  by  every  foreign  corporation 
upon  obtaining  a  license  to  do  business  in  this  State,  as  specified  in  this  section." 
Not  as  may  be  required  by  law.  "And  also  for  the  payment,  by  every  corporation 
hereafter  doing  business  in  this  State  of  an  annual  fee  of  not  less  than  five  dollars 
upon  its  charter  or  license  to  do  business,  and  for  the  making,  by  every  such  cor- 
poration (at  the  same  time  and  in  connection  with  the  payment  of  such  annual  fee), 
of  such  report  to  the  State  Corporation  Commission,  of  the  status,  business  or  con- 
dition of  said  corporation,  as  the  General  Assembly  may  prescribe.  No  foreign  cor- 
poration shall  have  authority  to  do  business  in  this  State  until  it  shall  have  first  ob- 
tained from  the  State  Corporation  Commission  a  license  to  do  business  in  this  State 
upon  such  terms  and  conditions  as  may  be  prescribed  by  law." 

Now,  let  us  see  where  we  are  with  respect  to  ordinary  daily  transactions. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  YIEGINIA. 


2355 


A  bank  in  New  York  or  a  Trust  Company  in  Baltimore  is  a  foreign  corporation 
as  to  Virginia.  It  could  not  do  a  particle  of  business  in  Virginia;  it  cannot  loan  a 
dollar  of  money  in  Virginia  without  first  getting  a  license  to  do  business  in  this 
State.  Second,  paying  a  fee  for  the  same.  Third,  making  a  report  to  the  State  Cor- 
poration Commission  of  Virginia  of  its  status  and  business. 

Now,  how  much  money  do  you  suppose  business  corporations  out  of  Virginia 
will  ever  loan  in  Virginia  under  those  terms  and  conditions?  If  we  have  plenty  of 
money  and  do  not  need  any  from  outside  to  develop  our  State,  it  is  all  right.  That 
may  be  better  for  a  bank  in  this  State.  But  where  is  there  a  bank  prudently  managed 
anywhere  in  the  v/orld  or  an  individual — no,  it  w^ould  not  apply  to  an  individual — 
but  where  is  there  a  bank  or  corporation  prudently  managed  in  the  world  that  would 
loan  money  in  Virginia  or  have  any  transactions  here  if  it  should  be  subject  to  those 
conditions?  It  would  run  the  risk  of  having  its  contract  declared  null  and  void,  be- 
cause the  Constitution  says  it  cannot  do  business  here  unless  it  does  all  these  things. 
They  may  say  that  the  Legislature  may  never  require  the  report  to  be  made,  but  the 
corporation  outside  of  the  State  don't  know  that  it  will  not.  People  do  not  loan 
money  in  countries  where  they  may  be  subjected  to  the  annoyances  and  exactions  of 
arbitrary  laws.  There  are  too  many  ways  of  using  money  in  this  country  to  do  any- 
thing like  that.  I  ask  the  attention  of  gentlemen  not  interested  in  railroad  corpo- 
rations to  that  matter. 

Mr.  Meredith:  Do  I  understand  you  to  say  that  a  New  York  bank,  under  the 
provisions  of  this  article,  could  not  loan  money  to  one  of  its  correspondents  here? 

Mr.  Hamilton:    Not  unless  it  got  a  license  to  do  so. 

Mr.  Meredith:  Suppose  the  Richmond  bank  borrov/s  from  the  New  York  bank, 
do  you  mean  to  say  that  that  transaction  takes  place  in  New  York? 

Mr.  Hamilton:  I  will  answer  my  friend.  You  mean  to  say  that  instead  of  con- 
sidering this  a  Virginia  contract,  that  it  might  be  called  a  New  York  contract.  In 
other  words,  you  would  have  a  bank  dealing,  maybe,  in  thousands  and  thousands  of 
dollars,  absolutely  depend  for  its  security,  even  of  a  mortgage  on  property  in  Vir- 
ginia, upon  having  that  contract  considered  and  held  by  the  court  under  the  doc- 
trine of  the  conflict  of  laws,  a  New  York  contract.  Would  any  corporation  or  any- 
body advancing  money  take  such  a  risk  as  that  in  loaning  its  money?  If  the  money 
was  secured  by  mortgage  in  Virginia  the  courts  of  Virginia  would  necessarily  have 
to  construe  that  contract  because  the  real  estate  is  here,  the  subject-matter  of  the 
litigation  is  here.  If  it  was  against  an  individual,  the  same  would  be  true.  A  per- 
sonal judgment  could  not  be  gotten  against  an  individual  in  a  foreign  jurisdiction 
unless  by  accident  service  of  process  upon  him  was  held. 

So  that  the  bank  or  the  trust  company  that  wanted  to  do  business  in  Virginia 
would  be  taking  an  enormous  and  foolish  and  silly  risk,  if  I  am  right  about  this  mat- 
ter,  in  loaning  its  money  in  a  State  where  first  it  has  to  take  out  a  license;  second, 
where  it  has  to  pay  its  fee  for  the  privilege  of  loaning  money  here,  and,  third,  has 
to  make  itself  liable,  at  any  rate,  to  render  an  account  of  its  status  and  transactions 
in  the  foreign  jurisdiction. 

Mr.  Robertson:  I  would  like  to  ask  the  gentleman  if  he  does  not  think  the 
words  "to  do  business"  are  broader  than  the  words  "to  make  a  contract"? 

Mr.  Hamilton:  I  think  they  mean  to  do  anything  in  the  scope  of  its  powers. 
To  loan  money  is  to  do  business.    To  make  a  contract  is  to  do  business. 

Mr.  Meredith:     Do  you   construe  that  section   as  being  that  those  conditions 
would  attach  without  an  agency  being  established  here? 

Mr.  Hamilton:  I  certainly  would.  I  may  be  obtuse  and  ignorant  on  this  point, 
as  probably  I  have  been  on  other  points  as  to  which  amendments  have  been  put  in 
here.  I  think  there  are  others  who  think  the  same  way.  It  is  an  illustration  of 
the  danger  of  putting  in  your  organic  law  a  great  lot  of  details  which  are  unneces- 
sary, and  the  evils  and  dangers  of  which  you  can  never  fully  appreciate  until  you 
put  it  into  actual  practice. 


2356  DEBATES  OF  THE  CONSTITUTION" AL  CONVENTION  OF  VIRGINIA. 

Mr,  William  A.  Anderson:  My  friend  doubtless  recalls  that  a  penalty  is  imposed 
by  the  present  statute  of  Virginia  upon  the  failure  of  a  foreign  corporation  doing 
business  in  Virginia  to  comply  with  the  requirements  of  the  statute,  and  that  all  the 
officers  of  the  corporation  shall  be  personally  liable.  The  language  is  "doing  busi- 
ness," which  I  think  the  courts  have  construed  to  be  carrying  on  a  regular  business, 
and  not  isolated  transactions. 

Mr.  Meredith:    You  think  that  this  covers  isolated  transactions? 

Mr.  William  A.  Anderson:    No,  sir. 

Mr.  Hamilton:    That  may  be  so,  but  this  is  a  very  hurried  way  for  us  to  con- 
Eider  so  important  a  question,  and  to' put  it  in  our  law  where  we  cannot  change  it. 
Mr.  William  A.  Anderson:    Our  present  law  does  not  vitiate  the  contract. 
Mr.  Hamilton:    But  this  one  does. 

In  Section  6,  on  page  18,  there  is  a  provision  with  respect  to  corporations  here- 
after accepting  amendments,  and  that  provision  is  that  if  they  accept  any  such 
amendment,  that  all  special  or  exclusive  rights  enjoyed  by  them  and  not  enjoyed  by 
other  corporations  shall  be  given  up. 

My  understanding  is  that  the  chairman  of  the  committee  has  expressed  his  will- 
ingness to  strike  out  the  words  "special  or,"  in  order  to  correct  the  serious  trouble 
there.    May  I  ask  the  chairman  if  that  is  correct? 

Mr.  Braxton:    Yes,  sir. 

Mr.  Hamilton:  I  am  merely  trying  to  get  this  thing  right.  I  am  not  trying 
to  make  any  trouble,  except  to  get  it  as  nearly  right  as  possible. 

Mr.  Chairman,  in  Section  8,  page  19,  there  appears.  I  will  not  say  an  old  friend 
of  mine,  but  an  old  acquaintance.  It  is  really  the  Postal  Telegraph  and  Cable  Com- 
pany's bill  to  be  allowed  to  use  the  rights  of  way  of  all  railroad  companies  in  this 
State,  for  no  compensation  at  all,  put  in  the  Constitution.  I  recognize  It  is  an  old 
friend  that  Colonal  Mcintosh  had  offered  in  the  Legislature  here  two  or  three  times, 
and  why  on  earth  it  should  be  stuck  into  the  Constitution  of  the  State  of  Virginia  I 
was  before  the  Legislature.  I  have  seen  him  about  here,  but  I  had  not  the  slightest 
idea  he  would  get  such  a  thing  in  the  Constitution.  The  sum  and  substance  of  it  is 
that  he  wants  to  put  in  the  Constitution  the  right  to  condemn  through  a  county 
court,  I  will  say  at  Bristol,  the  right  to  put  his  telephone  and  telegraph  poles  all  the 
way  along  the  Norfolk  and  Western  Railroad  to  Norfolk  from  Bristol,  and  all  the  way 
up  through  the  Shenandoah  Valley  to  Maryland,  and  all  the  way  from  Lynchburg 
down  to  the  North  Carolina  line  on  the  Durham  road,  and  on  every  other  branch 
that  it  is  possible.  He  bragged  before  the  Legislative  Committee  that  he  had  gotten 
as  much  as  500  miles  of  the  railway  right  of  way  in  length  for  the  use  of  his  tele- 
phone poles,  and  they  did  not  make  him  pay  but  about  $5  for  it.  Now,  the  whole 
thing  is  utterly  and  absolutely  wrong.  In  the  first  place,  it  is  impossible  that  the 
commissioners  in  the  county  court  of  any  one  county  for  any  such  distance  can 
judge  of  that  matter  properly.  In  the  next  place,  the  statute  law  of  Virginia,  and 
it  was  all  made  under  its  Constitution,  has  no  right  to  allow  a  railroad  company  to 
condemn  any  more  land  for  its  right  of  way  than  was  necessary  for  its  use.  If  it 
allowed  any  more  than  was  necessary  for  its  use,  it  was  illegal  and  improper,  it  was 
taking  the  property  of  the  private  citizen  not  for  a  public  but  for  a  private  use.  The 
statute  law  of  Virginia  formerly  allowed  a  railroad  company  to  condemn  eighty  feet 
in  width  for  a  right  of  way  under  ordinary  circumstances,  and  they  permitted  it  to 
be  v/ider  where  there  were  deep  cuts  and  high  fills.  For  some  years  it  has  allowed 
100  feet  to  be  condemned,  extending  it  from  80  to  100  feet,  because  80  feet  was  not 
enough. 

Now,  it  is  inconsistent  with  the  very  terms  of  the  title  under  which  a  rail- 
way company  acquires  its  right  of  way  to  permit  anybody  upon  it  not  sub- 
ordinate to  the  railway  company  because  the  railway  company  under  our 
laws,    as    I    understand    it,    justly,    is    held    to    a    high    degree    of    care  for 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2357 

the  condition  of  its  right  of  way.  If  any  trouble  comes  from  its  being  in  a 
bad  condition,  it  is  liable  for  damages  in  consequence  of  the  injuries  caused  thereby. 
Yet  here  comes  really  the  Postal  Telegraph-Cable  Company,  for  that  is  what  it  is, 
and  nothing  else,  into  this  Constitution  to  obtain  an  act  of  the  Assembly  which  has 
been  turned  down  'in  more  than  one  Legislature  of  Virginia.  Why  do  they  want  to 
come  here  and  do  this?  Why  do  they  want  necessarily  to  put  their  poles  on  the 
right  of  way  of  the  railroad  company,  for  the  care  of  which  the  railroad  company  is 
liable  in  so  high  a  degree  of  responsibility?  It  is  because  they  want  to  get  the  right 
of  way  practically  for  nothing  which  has  probably  cost  these  companies  large  amounts 
of  money.  I  have  paid  on  an  average  of  $67  a  running  mile  for  the  poorest  land  in 
Dinwiddle  county,  that  was  not  valued  at  $2  an  acre,  with  nothing  on  it,  and  yet  this 
company  comes  here  before  a  Constitutional  Convention  and  wants  this  matter  put 
in  to  condemn  this  right  all  over  the  State  of  Virginia  by  a  jury  and  a  county  court 
somewhere,  in  order  that  they  may  get  something  that  other  people  have  had  to  pay 
for,  or  charged  with  the  responsibility  for,  and  get  it  for  a  nominal,  absolutely  nomi- 
nal consideration. 

Now,  there  is  a  provision  in  the  section  that  if  at  any  time  the  railroad  company 
shall  need  for  its  purpose  the  ground  where  the  poles  are  put  they  must  be  moved 
to  another  place  on  the  right  of  way.  Putting  the  poles  in  is  not  the  only  thing 
you  have  to  do  in  running  thelegraph  and  telephone  lines.  You  have  to  go  in  there 
and  keep  them  in  repair.  You  have  to  have  wagons  going  along  the  right  of  way 
and  repairing  the  poles  and  wires;  and  there  is  a  danger,  if  it  is  not  properly  guarded, 
of  having  these  poles  and  wires  falling  across  the  railroad  tracks  and  causing  death 
and  desolation  in  consequence  of  the  negligence  of  these  parties  who  are  made  para- 
mount to  the  railroad  company  charged  with  the  duty  of  the  safe-keeping  of  that 
right  of  way. 

Further  on  the  section  provides  that  

If,  at  any  time,  a  railroad  company  shall  need,  for  railroad  purposes,  any  por^ 
tion  of  its  right  of  way  occupied  by  telegraph  or  telephone  companies,  such  tele- 
graph or  telephone  company  shall,  upon  reasonable  notice,  at  its  own  expense,  re- 
move its  lines  to  such  other  points  on  the  right  of  way  as  may  be  designated  by  the 
railroad  company. 

Suppose  there  is  no  other  point?  Why  cannot  they .  do  as  other  people  do?  Is 
there  any  reason  why  they  should  not  go  along  and  pay  the  people  who  own  the  farms 
immediately  outside  of  the  right  of  way  of  the  railroad  company  for  the  land  they 
need?  Is  there  any  reason  why  they  shall  not  go  along  the  public  road,  paying  the 
people  for  the  privilege  of  erecting  their  poles?  I  think  railroad  companies  are  re- 
quired to  keep  telegraph  stations  every  ten  or  fifteen  miles,  and  it  must  have  some 
telegraph  line  along  its  road,  and  if  it  has  not  one  which  it  can  use,  it  must  maintain 
one  of  its  own.  There  are  many  stations  on  every  railroad  in  a  sparsely  settled 
country  like  ours  where  the  total  receipts  of  the  telegraph  station  would  not  amount 
to  one-tenth  of  the  salary  of  an  ordinary  telegraph  operator,  but  under  the  present 
conditions  the  telegraph  company  has  a  contract  with  the  railroad  company  and  is 
trying  to  get  business  all  around.  The  railroad  company  wants  somebody  to  do  its 
telegraphing,  and  the  station  agent  at  these  small  places  is  ordinarily  a  man  who  can 
telegraph.  Whatever  he  can  get  out  of  the  telegraph  company  is  in  addition  to  his 
pay  by  the  railroad  company.  You  could  not  maintain  him  there  as  a  telegraph 
operator  alone.  It  would  bankrupt  any  telegraph  company  on  earth  that  tried  it. 
The  railroad  company  could  not  keep  him  to  do  its  own  business  only,  and  so  there 
is  a  combination  of  the  duties  of  station  agent  and  telegraph  agent  at  one  of  these 
small  places. 

This  is  an  attempt  to  force  the  use  of  the  right  of  way  of  the  railroad  com' 
pany  for  telegraph  purposes  for  practically  no  consideration,  as  the  counsel  of  the 
company  stated  before  the  committee,  and  he  was  very  proud  of  his  accomplishment. 


2358  DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 

Personally,  if  I  may  be  permitted  to  express  any  personal  view,  I  think  the  Postal 
Telegraph  Company  renders  a  better  service  than  the  Western  Union,  but  to  say  that 
any  telephone  or  telegraph  company  shall  by  paramount  power  and  force  be  allowed 
to  place  itself  upon  the  right  of  way  of  the  railway  is  inconsistent  with  the  very 
title  under  which  the  railway  company  holds  its  right  of  way,  and  inconsistent 
with  its  duties  to  the  public,  and  I  hope  that  that  section  will  be  stricken  out. 

Mr.  Chairman,  the  next  clause  here,  Section  9,  is  what  is  called  the  long  and 
short  haul  clause,  etc.,  and  I  will  not  take  up  the  time — I  will  not  say  waste  the  time — 
in  talking  on  it,  I  may  say  this,  that  that  portion  of  it  which  says  "whether  such 
longer  distance  be  entirely  within  this  State  or  not,"  is,  in  my  judgment,  absolutely 
unconstitutional,  as  is  shown  by  the  decisions  of  the  United  States  Supreme  Court, 
but  I  have  not  the  time  to  comment  upon  that  or  go  further  into  it. 

I  now  come  to  what  was  formerly  called  the  employers'  liability  bill,  in  Section 
11.  I  would  be  glad  to  have  the  opportunity  to  call  the  attention  of  the  chairman  to 
certain  language  in  it  which  I  do  not  myself  quite  understand,  and  I  hope  I  may  be 
enlightened  in  regard  to  it. 

In  the  first  place,  in  line  17,  the  clause  beginning  

Knowledge,  by  any  employee  injured,  of  the  defective  or  unsafe  character  or 
condition  of  any  machinery,  ways,  appliances,  or  structure,  shall  not  of  itself  be  a 
bar  to  recovery  for  an  injury  caused  thereby. 

I  do  not  think  that  a  proper  clause.  I  do  not  think  there  is  any  objection  to  the 
rest  of  it,  provided  the  language  of  the  next  clause  is  changed.  But  I  think  the 
above  clause  may  do  away  with  the  general  principle  of  contributory  negligence 
on  the  part  of  the  employee.  Certainly  if  a  man  knows  of  defective  machinery,  and 
it  is  obviously  bad,  dangerous,  etc.,  and  he  wilfully,  without  being  ordered,  uses  it 
(I  do  not  think  he  ought  to  use  it,  even  if  ordered),  but  if  he  goes  deliberately  and 
uses  it,  and  gets  killed,  I  do  not  think  that  there  is  any  excuse  for  his  conduct.  If 
he  gets  hurt  under  those  circumstances,  it  seems  to  me  that  he  is  not  the  kind  of  a 
man  that  the  Constitution  should  come  in  and  take  care  of.  I  think  it  was  stated 
that  this  provision  was  put  in  based  on  some  decision  of  the  Supreme  Court  of 
Mississippi.  I  would  state  that  I  have  quoted  many  decisions  of  ether  courts  to  the 
Supreme  Court  of  Virginia  which  that  court  has  not  accepted  as  law,  and  I  think 
rather  than  depend  upon  the  decision  of  the  Supreme  Court  of  Mississippi,  that  we 
had  better  fix  the  language  ourselves. 

The  next  clause  is  this — 

When  death,  instantaneous  or  otherwise,  results  from  any  injury  to  such  an  em- 
ployee, received  as  aforesaid,  the  personal  representative,  surviving  consort,  and  rela- 
tives of  the  deceased  shall  have  the  same  rights  and  remedies  that  they  would  have 
had  if  he  had  not  been  an  employee  of  the  company. 

I  do  not  think  those  lines  mean  what  is  intended.  I  think  his  personal  repre- 
sentatives are  entitled  to  the  same  right  that  he  would  have  had  as  an  employee  of 
the  company.  It  seems  to  me  that  an  injustice  may  be  done  to  the  people  repre- 
senting the  dead  man  if  that  is  left  there.  A  man  as  an  employee  might  be  entitled 
to  recover  in  many  a  case  when  he  would  not  be  entitled  to  recover  if  he  had  not 
been  an  employee. 

A  stranger  would  have  no  right  to  be  in  a  dangerous  place  where  it  might  be 
the  duty  of  an  employee  to  be.  I  do  not  think  that  language  is  apt.  I  think  it  ought 
to  be  changed. 

Now,  in  Section  12,  Mr.  Chairman,  I  will  mention  one  matter.  Section  12  reads, 
"No  foreign  corporation  shall  be  authorized  to  carry  on,  in  this  State  the  business, 
nor  to  exercise  any  of  the  powers  or  functions  of  a  public  Service  corporation." 

That  language  is  plain  and  if  it  means  what  it  says,  I  have  nothing  further  to 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIX'IA. 


2359 


c:av  It  is  an  absolute  prohibition  of  a  foreign  corporation  to  exercise  the  powers  or 
functions  of  a  public  service  corporation  in  Virginia.  I  do  not  know  an^^  particular 
reason  vrhv  thev  should  be  put  in  that  position.  I  imagine  there  is  some  typo- 
graphical trouble  there,  but  I  may  be  vrrong.  It  reads  further,  '-nor  be  permitted 
to  do  anything  which  domestic  corporations  are  prohibited  from  doing." 

Mr.  Braxton:  If  the  railroad  is  entirely  intra-State,  it  was  intended  to  pro- 
vide  that  it  shall  not  operate  under  foreign  charter.  As  to  the  wisdom  of  that,  is 
another  question. 

Mr.  Hamilton:  If  that  is  the  view  of  the  committee,  of  course  I  shall  say 
nothing  about  it  at  present.  I  think  it  is  unwise  to  say  that  a  foreign  corporation 
should  not  do  anything  in  Virginia  beneficial  to  us,  especially  as  it  cannot  come  in 
without  obtaining  a  license  and  if  it  does  come  in  it  has  to  pay  a  franchise  tax. 

Mr.  Thom:  I  would  like  to  call  attention  to  the  "fact  in  order  to  get  it  before 
the  committee,  under  this  provision  a  foreign  corporation,  like  the  Baltimore  &. 
Ohio,  could  not  acquire  use  of  or  operate  a  line  in  the  State  of  Virginia. 

Mr.  Hamilton:    I  understand  that.    At  any  rate,  I  think  that  is  a  matter  which 
deserves  serious  consideration.    I  will  say  no  more  about  it. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  thank  you  fo'r  your  attention. 
There  are  some  further  difiiculties,  as  I  see  them,  which  I  desire  to  point  out  in  the 
remaining  sections,  but  I  am  entirelj'  conscious  that  I  have  talked  for  a  long  time, 
and  if  I  have  not  wearied  you  it  is  remarkable,  as  I  have  certainly  wearied  myself. 
I  have  not  been  speaking  for  fun  or  with  any  attempt  at  oratory. 

I  think  it  a  very  serious  matter  that  we  are  contemplating  putting  into  the  Con- 
^itution  this  long  provision  of  twenty-six  pages.  To  my  mind  there  are  many  serious 
defects  in  it  even  in  carrying  out  the  views  of  the  gentleman  who  framed  It,  and  I 
feel  that  if  one-third  or  one-tenth  of  the  defects  which  to  me  seem  defects  are  de- 
fects, it  emphasizes  the  unwisdom  of  putting  into  our  Constitution  any  such  docu- 
ments. 

We  ought  to  have  in  the  Constitution,  I  will  be  frank  to  say,  something  about  like 
the  Georgia  provision,  that  the  Legislature  shall  provide  for  a  commission  to  look  after 
transportation  companies  and  see  that  they  shall  not  discriminate  and  that  they  shall 
charge  reasonable  rates,  and  the  Constitution  should  make  it  sufficiently  definite  and 
strong  so  that  the  Legislature  cannot  help  obeying  the  Constitution  and  carrying  out  its 
intent.  I  think  you  are  doing  an  exceedingly  dangerous  thing  to  put  the  rest  of  this 
provision  in  here  except  possibly  the  employers'  liability  clause.  My  information  was 
that  the  platform  of  the  Democratic  party  said  that  it  should  be  passed  by  the  Legisla- 
ture. I  have  no  objection  to  it.  I  do  not  mean  to  say  that  as  it  is  drawn  I  approve  it 
fully.  I  think  most  of  it  is  right.  I  do  not  think  it  should  go  into  the  Constitution; 
but  we  have  violated  the  principle  of  putting  into  the  Constitution  only  broad  princi- 
ples so  much  that  I  have  stopped  fighting  it  or  wasting  breath  over  it.  If  we  are  going 
to  put  it  in,  let  us  put  it  in  right,  but  do  not  put  in  the  provision  regarding  corpora- 
tions in  anything  approximating  its  present  shape.  The  danger  is  not  only  to  the  cor- 
porations, but  there  is  danger  to  every  kind  of  the  business  in  the  State,  and  in  every 
phase  of  development,  and  I  am  sure  it  will  come  back  to  plague  and  curse  all  the 
people. 

I  thank  you  for  your  attention.  (Applause.) 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  pro  tempore  re- 
sumed the  chair. 

On  motion  the  Convention  adjourned  until  to-morrow,  Wednesday,  February  12, 
1902,  at  10  o'clock  A.  M. 


2360 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


MONDAY,  February  12,  1902. 

The  Convention  met  at  10  o'clock  A.  M.,  the  President  pro  tempore  in  the  chair. 
Prayer  by  Rev.  D.  A.  Solly,  D.  D.,  of  Richmond. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations. 

Mr.  Meredith:  Mr.  Chairman:  One  has  no  right  to  expect,  rising  at  this  late  stage 
of  the  discussion,  that  he  can  offer  any  new  arguments  or  any  new  lines  of  thought  to 
a  subject  that  has  been  so  fully  discussed  and  so  ably  presented  on  both  sides.  All  he 
can  hope  to  do  is  to  add  possible  some  slight  reinforcement  to  the  positions  that  have 
been  maintained  so  ably  by  the  majority  of  this  committee  in  sustaining  their  report. 

I  think,  Mr.  Chairman,  you  will  agree  with  me,  and  possibly  every  one  in  this  body 
will  agree  with  me  that  there  has  been  no  report  presented  to  this  body  which  has  been 
subjected  to  more  violent  and  almost  virulent  attack  by  its  opponents.  Strongly  and 
justly  as  we  m.ay  believe  in  the  majority  report  of  this  committee,  we  cannot  but  recog- 
nize the  intellectual  ability  that  has  been  displayed  by  its  opponents  in  their  method  of 
attack.  It  is  hard  to  conceive  of  any  other  line  of  attack,  which  could  have  been  made, 
that  has  not  been  made  by  the  ingenious  gentlemen  who  oppose  this  report.  You  will 
recall,  Mr.  Chairman,  that  their  first  line  of  attack  was  to  throw,  in  opposition  to  this 
majority  report,  what  they  term  the  report  of  the  minority;  a  mild  and  meek  and  inno- 
cuous paper,  harmless,  failing  to  present  anything  of  a  special  nature  of  any  strength, 
and  recommiending  it  because  of  its  weakness. 

Mr.  Chairman,  it  did  not  take  long  for  the  gentleman  from  Manchester  (Mr.  In- 
gram), the  gentlem-an  from  Northampton  (Mr.  Kendall)  and  the  gentleman  from 
Halifax  (Mr.  Stebbins)  to  so  batter  and  bruise  that  weak  foundling  that  even  its  friends 
abandoned  it,  and  for  days  we  have  scarcely  heard  it  mentioned,  as  worthy  of  one  single 
word  of  praise.  It  has  served  its  purpose,  to  divert  your  mind  from  the  strong  and 
able  paper  that  had  been  presented  by  the  majority  of  this  committee. 

I  say  it  served  its  purpose;  and  then  has  been  cast  aside,  and  we  do  not  hear  it 
now  mentioned  by  any  of  its  friends.  It  received  its  severest  blow  from  one  of  the 
opponents  of  the  majority  report,  from  the  gentleman  from  Roanoke.  Without  a 
moment's  hesitation  he  kicked  it  aside,  as  unworthy  to  go  into  the  Constitution.  I  do 
not  know,  Mr,  Chairman,  of  any  gentleman  in  this  Convention  who  can  do  "kicking" 
better  than  my  friend  from  Roanoke.  But  he  soon  saw  that  it  would  not  do  to  press 
that  line  of  attack,  as  it  was  so  weak,  so  feeble,  so  discredited  that  his  strong  common 
sense  told  him,  there  must  be  something  else  done,  if  he  wanted  to  prevent  the  passage 
of  the  report  of  the  majority  of  this  committee.  So  he  announced  to  this  Convention 
that  his  method  of  attack  would  be  along  what  he  called  "general  lines."  Mr.  Chair- 
man, I  approve  of  his  use  of  the  word  "general"  for  more  general,  indefinite  comments 
and  criticisms  and  statements  in  regard  to  a  legal  paper,  I  do  not  think  I  ever  heard. 
He  confined  himself,  as  he  said,  not  to  discussing  the  merits  of  the  paper  which  had 
been  presented  by  the  majority,  but  said  that  he  would  attack  it  and  show  that  no  paper 
of  that  kind  ought  to  go  into  the  Constitution.  Mr.  Chairman,  we  can  well  recall  what 
fearful  pictures  he  presented  to  us,  how  the  gloom  of  financial  disaster  seemed  to  be 
settling  upon  this  State,  how  the  men  of  means  seemed  to  be  rushing  away  to  protect 
themselves  from  this  hydra-headed  monster,  as  if  they  thought  that  not  a  moment  must 
be  lost,  that  they  must  escape  beyond  the  borders  of  this  State  in  order  to  protect  their 
finances;  how  he  said  that  discredit  of  every  nature  would  be  brought  upon  this  State, 
the  wheels  of  progress  would  be  blocked,  no  enterprises  would  be  indulged  in,  men 
would  be  scared,  money  would  seek  other  States,  and  every  impending  disaster  that  a 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


23G1 


dark  and  gloomy  imagination  could  give  forth  was  presented  by  the  gentleman  from 
Roanoke. 

I  do  not  know  any  lines  which  describe  the  scene  he  pictured  to  us,  more  than  those 
ef  Campbell,  when  he  describes  the  "Last  Man;  " 

"The  sun's  eye  had  a  sickly  glare. 
The  earth  with  age  was  wan; 
And  skeletons  of  nations  were  '  . 

Around  that  lonely  man."' 

So,  Mr.  Chairman,  that  was  what  he  called  "general  lines"  of  argument.  First  we 
would  hear  some  little  electric  snap, , as  he  gave  forth  a  sneer  of  sarcasm;  then  would 
come  rumbling  and  grumbling  the  f'^phecy  of  financial  disaster.  But  through  it  all, 
Mr.  Chairman,  while  we  might  appl'eciate  the  imagination  of  the  gentleman,  we  did  not 
abandon  what  has  been  so  beneficial  to  the  human  race — a  little  common  sense.  We 
hung  to  that  anchor  of  our  hope  and  that  great  safeguard  in  all  the  affairs  of  life,  and 
began  to  enquire  whether  this  was  true.  While  our  imaginations  would  be  stirred  and 
our  fears  would  perhaps  get  momentarily  the  best  of  us,  yet,  presently  there  would 
come  to  our  mind  the  question:  Is  this  imagination  or  is  it  real,  bona  fide  facts?  And 
unfortunately  for  me  I  have  rather  9.n  inquisitive  mind,  and  I  could  not  help  asking 
myself,  "Why  should  this  disaster  come?  Why  should  this  great  storm  of  destruction 
come  from  putting  this  into  the  Constitution?" 

Mr.  Chairman,  there  has  not  been  a  man  on  this  floor,  and  there  will  not  be  a 
man  on  this  floor,  who  dares  to  say  that  these  corporations  should  not  be  controlled. 
There  has  not  beeii  a  man  on  this  floor  and  there  will  not  be  a  man  on  this  floor,  who 
will  dare  to  say  that  the  restrictions  and  the  powers,  which  should  be  put  in  some 
State  authority  to  restrict  and  to  control  these  corporations,  ought  not  to  include  the 
right  to  control  rates  and  the  classification  of  traflic.  Now,  I  say  no  man  has  denied 
that.  They  have  all  admitted  it.  They  have  all  gone  so  far  as  to  say  that  those  com- 
panies, which  they  represent  in  the  daily  walks  of  life,  have  violated  the  law;  that 
they  have  violated  the  law  many  times  and  frequently,  and  that  there  must  be  some 
control  upon  them.  Remembering  those  concessions  and  those  admissions,  Mr.  Chair- 
man, while  the  gentleman  from  Roanoke  w^as  telling  us  of  the  great  evils  that  would 
come  upon  us  by  putting  this  into  the  Constitution,  my  simple  common  sense  made  me 
ask:  "Why  should  this  ruin  be  so  much  greater  when  it  is  in  a  constitutional  pro- 
vision, than  it  would  be  in  a  legislative  enactment?  Why  should  there  be  so  much 
disaster  come  from  a  constitutional  provision,  when  that  disaster  would  not  come  from 
a  legislative  enactment,  which  all  these  gentlemen  admit  ought  to  be  adopted  by  the 
Legislature.  Can  any  man  tell  me?  Do  you  not  see  that  it  is  simple,  wild  imagina- 
tion; an  attempt  to  arouse  fear,  and  that  no  more  harm  can  possibly  come  to  the  State 
by  putting  it  into  the  Constitution  than  will  come  from  putting  it  in  a  legislative  enact- 
ment? 

Why,  Mr.  Chairman,  I  will  go  further;  is  it  not  beneficial  to  these  railroads,  that 
we  should  now  and  here  put  this  provision  into  the  Constitution?  Mr.  Chairman  and 
gentlemen  of  the  committee,  the  day  has  gone  by  when  this  question  will  not  be  a  burn- 
ing and  the  living  question  until  it  is  settled  in  favor  of  the  people.  The  discussions 
which  have  taken  place  on  this  floor,  the  disseminations  of  those  discussions  broadcast 
through  the  State,  will  just  as  certainly  arouse  the  people  to  the  wrongs  which  they 
have  suffered  as  that  we  are  here  assembled  and  utter  those  words.  They  now  know, 
they  now  see,  they  will  hereafter  demand  that  this  thing  shall  be  done. 

Therefore,  I  say  it  has  got  to  come.  It  is  inevitable.  It  must  come,  and  the  simple 
question  is,  whether  these  railroads  would  not  be  wiser  to  say,  "Put  it  into  the  Consti- 
tution now,  and  let  us  have  an  end  of  this  trouble." 

Mr.  Chairman,  look  and  see  what  will  follow.  If  this  is  not  put  into  the  Constitu- 
tion now,  you  will  simply  be  throwing  a  firebrand  into  every  political  combat  that  is 
149 — Const.  Deb. 


23G2'  DEBATES  OF  THE  COl^STITUTIOXAL  CONVENTION"  OF  VIRGINIA. 

going  to  take  place  in  this  State,  until  this  thing  is  settled  and  settled  rightly.  Can. 
the  railroads  be  benefitted  by  that?  If  the  evil  which  they  say  will  come  from  this 
commission  will  come,  will  not  that  evil  be  magnified,  the  oppression  greater,  the  sense 
of  outrage  greater,  if  they  make  us  fight  year  in  and  year  out  until  we  finally  crush 
them. 

Is  it  not  better  that  now  we  should  do  it,  calmly,  free  of  excitement;  do  it  when 
there  is  no  popular  outcry,  no  sense  of  outrage  to  be  revenged,  than  that  you  should 
throw  this  firebrand,  I  say,  into  every  political  contest  and  combat,  which  will  take 
place  in  this  State  in  the  coming  years.  Is  it  the  part  of  prudence  that  you  should 
have  this  thing  to  look  forward  to,  to  know  that  its  demand  will  exist  and  grow.  Then, 
when  they  put  upon  you  the  restrictions  and  the  powers  of  State  authority,  mark  my 
words,  its  strength  will  be  in  proportion  to  the  outrage  that  they  will  feel,  from  not 
having  obtained  it  before.  Therefore,  I  say,  that  instead  of  this  impending  disaster, 
which  the  dark  and  gloomy  mind  of  my  friend  from  Roanoke  so  suffered  under,  you 
find  that  there  can  come  no  more  evil  as  the  result  of  a  constitutional  provision  than 
there  will  be  by  a  legislative  enactment;  but  that  wisdom  and  common  sense  and  pru- 
dence ought  to  tell  these  railroads  that  it  is  to  their  interest,  now  and  here,  calmly,  by 
this  body,  to  settle  this  question,  and  not  have  it  thrown,  as  I  say  into  all  the  coming 
political  contests  to  cause  bitterness  and  trouble  and  a  sense  of  outrage  in  this  State 
hereafter. 

So  I  say  to  the  friends  of  the  railroads,  I  say  it  to  the  men  who  want  to  look  upon 
this  question  calmly,  not  with  any  idea  of  hurting  anybody,  but  with  the  idea  of  pro- 
tecting everybody,  do  this  thing  now,  when  it  can  be  done  fairly,  calmly,  properly, 
justly,  and  do  not  throw  it  into  the  political  contests  of  this  State  to  arouse  anger  and 
a  sense  of  outrage  in  the  people  of  the  State  so  that  when  they  come  to  put  upon  you 
these  restrictions  they  will  feel  that  they  must  punish  you  as  well  as  get  their  rights. 

Mr.  Chairman,  I  say  that  these  opponents  of  this  bill,  and  that  the  gentleman  from 
Roanoke,  loud  as  were  his  lamentations,  fearful  as  were  his  prophesies,  are  simply 
fighting  the  air,  because  they  know  as  well  as  we  do  that  no  more  harm  will  be  done 
by  a  constitutional  provision  than  by  a  legislative  enactment, 

Mr.  Robertson:  My  speech  was  based  on  my  honest  convictions,  just  as  yours  is. 
I  do  think  that  there  is  a  very  broad  difference  between  putting  a  provision  into  the 
Constitution,  where  it  cannot  be  amended,  and  putting  it  into  a  legislative  enactment, 
where  it  can  be  amended. 

Mr.  Meredith:  I  will  not  do  you  any  injustice  intentionally;  I  may  uninten- 
tionally. 

Mr.  Chairman,  it  has  been  admitted  on  this  floor  there  is  virtually  no  difference 
between  the  two  reports  in  the  main  as  to  the  question  of  rates  and  the  placing  of  that 
schedule  of  rates  and  the  classification  of  tariff  in  the  Constitution.  It  is  agreed  that 
the  power  of  revision  of  tariff  and  of  revision  of  classification  ought  to  be  given  to  some 
State  authority.  Everybody,  including  the  gentleman  from  Roanoke,  admitted  that. 
Now,  I  say,  if  that  be  true,  it  will  be  difficult  to  establish  the  difference  between  a  con- 
stitutional provision  and  a  legislative  enactment.  Do  not  tell  me  about  flie  draft  of  it; 
I  will  come  to  that  in  a  moment,  but  I  am  speaking  as  to  the  proposition  concerning  the 
danger  that  comes  from  it,  and  to  the  injury  that  will  follow;  as  to  whether  it  is  not 
as  dangerous  to  put  it  in  a  legislative  enactment  as  to  put  it  in  a  constitutional  pro- 
vision. 

I  want  to  stop  here  to  say  that  several  years  ago  I  stood  on  this  floor,  not  as  a 
member  of  any  legislative  body,  but  simply  as  representing  some  workmen  of  this 
State  in  a  friendly  and  charitable  way,  and  urged  the  railroad  authorities  to  allow 
some  employers'  liability  bill  to  be  passed  by  the  Legislature;  that  it  had  to  come;  that 
wrong  could  not  exist  forever!  and  according  to  their  usual  conduct  they  simply  held 
on  to  what  they  had,  until  now  they  find  that  the  people  of  the  State  are  willing  to  in- 
sert a  Constitutional  provision  to  protect  the  people  of  the  State  from  the  outrages 


DEBATES  or  THE  C0^'5TITUTI0^'AL  COXVEXTIOX  OE  TIEGIXIA.  2363 


perpetrated  by  the  employers'  liability  law  of  this  State.  I  say  again,  it  is  to  the  in- 
terest of  those  people  to  have  the  question  now  at  issue  settled  by  a  body  which  will  try 
to  deal  with  it  calmly,  which  will  tiw  to  deal  with  it  intelligently,  which  will  try  to 
draw  its  prorisions  in  such  a  way  as  to  give  them  fair  protection.  But  the  friends  of 
the  railroads  must  not  demand  such  things  as  will  destroy  the  protection  which  the 
people  demand.  That  is  all  we  ask  of  them:  Come  and  put  your  shoulder  to  the  wheel 
with  us  and  we  will  give  you  all  you  are  entitled  to."  But  let  us  say  now  and  here, 
"You  will  never  have  over  the  people  of  this  State  the  extensive  powers  you  have  had, 
to  harm  them  in  the  past." 

So  I  say,  Mr.  Chairman,  that  the  line  of  attack  made  by  the  gentleman  from 
Roanoke,  which  was  the  second  line  of  attack,  failed.  Then,  Mr.  Chairman,  there  came 
forth  that  doughty  warrior  from  Frederick  (Mr.  -Harrison).  He  came,  as  what? 
Marked  upon  his  banner  was  praise  of  the  Legislature.  He  poured  forth  paeans  of 
praise  for  the  Legislature.  He  painted  that  body  as  one  that  was  worthy  of  all  trust 
and  confidence  and  love,  and  said  that  in  all  our  efforts  we  could  safely  trust  the 
Legislature.  Ti,'hile  my  friend  from  Roanoke  had  used  all  the  dark  pigments,  and 
every  color  he  had  was  dark  and  gloomy,  those  of  the  gentleman  from  Frederick  were 
"brilliant  and  beautiful,  from  yellow  to  red;  and  as  he  described  how  much  we  could 
get  from  the  Legislature,  we  found  at  last  that  it  came  to  what?  That  he  had  brought 
into  the  arena  what  had  been  kicked  out  of  it  virtually,  the  Mason  bill  if  1892,  and 
then  exclaimed,  in  the  language  of  the  blind  bard,  These  are  thy  glorious  works, 
Parent  of  Good." 

That  is  another  line  of  attack,  Mr.  Chairman,  that  has  been  pursued.  Sir,  I  stop 
to  repeat,  could  the  ingenuity  or  the  wit  of  man  devise  more  able  or  more  ingenious 
lines  of  attack  than  have  been  pursued  by  the  opponents  of  this  bill?  They  have  in- 
dulged in  every  method  of  fight;  but  they  did  not  stop  there.  Last,  but  not  least,  came 
forth  my  friend  from  Petersburg  (Mr.  Hamilton).  Mr.  Chairman,  he  was  to  play 
another  part. 

Mr.  Harrison:  I  should  like  to  ask  the  gentleman,  before  he  leaves  that  subject, 
wherein  the  Mason  bill  has  failed  to  do  the  vrork  it  vras  intended  to  do  when  any  use 
was  made  of  it. 

Mr.  Meredith:  I  have  never  denied  that  it  has  failed  to  do  the  work  it  was  in- 
tended to  do,  but  I  deny  that  it  was  ever  intended  to  do  the  good  work  it  ought  to  do. 

Mr.  Harrison:  Xow,  I  understand  the  great  complaint  that  the  gentleman  who 
favors  the  majority  report,  is  that  there  have  been  discriminations  in  tariffs.  I  should 
like  the  gentleman  to  explain  wherein  the  Mason  bill  is  not  effective  in  securing  relief 
from  any  such  discrimination.  It  certainly  gives  a  remedy  by  application  to  the  courts 
to  have  it  corrected,  and  the  courts  have  sustained  that  jurisdiction. 

Mr.  Meredith:  Mr.  Chairman,  I  cannot  stop  now  to  discuss  the  matter,  which  the 
rest  of  us  regard  as  a  dead  issue.  It  was  found  so  defective  that  the  minority  had  to 
amend  it,  and  they  brought  in  here  a  report,  thinking  they  were  giving  something  more; 
and  now  you  want  me  to  go  back  to  what  has  been  discredited  by  even  the  minority. 
I  respectfully  submit  I  cannot  stop  to  argue  upon  lines  of  thought  like  that. 

But  I  say  my  friend  from  Petersburg  was  then  brought  in  to  make  an  attack  upon 
us,  and.  Mr.  Chairman,  he  was  to  follow  another  line.  He  was  to  be  the  skilled  swords- 
main  of  a  rapid  rapier;  and  full  well  he  did  his  part.  After  he  got  through,  Mr.  Chair- 
man, there  was  not  a  fly-speck  on  that  majority  report  which  he  had  not  pierced  with 
his  murderous  sword;  and  they  were  fly-specks. 

Vrithout  taking  the  broad  question  we  were  discussing,  my  friend  undertook  to  show 
minutely  here  and  there  an  evil,  and  here  and  there  an  evil,  not  willing  to  wait  until 
we  came  to  consider  those  little  details  and  offer  amendments,  but  in  order  to  crush  us 
by  the  last  effort  he  could  devise.  All  other  lines  of  attack  having  been  pursued  he  was 
to  overwhelm  us  by  piling  up  the  little  errors  in  matters  of  detail. 

Mr.  Hamilton:    I  think  you  said  I  was  brought  in  to  do  a  certain  thing.    I  wish  to 


2364  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

assure  you  that,  what  I  did,  was  without  consultation  ?^d  without  any  arrangement 
with  any  one. 

Mr.  Meredith:  I  will  say  to  the  gentleman  from  Petersburg  that  I  would  not  be 
justified  in  saying  to  him  what  the  gentleman  from  Pulaski  (Mr.  Wysor)  said  to  the 
gentleman  from  Roanoke  (Mr.  Robertson)  on  yesterday,  that  if  he  had  consulted  some- 
body he  would  have  made  a  better  speech.  I  will  not  say  that.  I  think  the  gentleman, 
along  the  lines  of  thought  he  was  pursuing,  made  an  able  and  ingenious  presentation 
of  his  cause;  but  what  I  am  objecting  to  is  the  pursuit  of  that  line  of  thought  at  such 
an  unfortunate  moment. 

What  will  remain  for  my  friend  from  Norfolk  (Mr.  Thom),  Mr.  Chairman,  I  do  not 
know;  but  there  must  be  some  last  gun.  They  have  some  new  effort,  some  new  line  of 
attack,  for  I  cannot  conceive  that  men,  who  have  been  as  ingenious  as  they  have  been, 
will  ever  fail  to  bring  forth'  some  other  device,  by  which  they  will  attack  the  merits  of 
this  bill. 

Mr.  Robertson:  Do  you  think  it  is  fair  to  charge  your  opponents  here  on  this  floor 
who  represent  different  constituencies  with  having  gotten  together  to  get  up  devices  to 
present  their  arguments  here?  I,  for  one,  resent  the  use  of  that  word.  I,  like  the 
gentleman  from  Petersburg,  made  my  argument  here  without  consultation  w^ith  any 
man,  whether  it  be  good,  gloomy,  or  what-not,  and  I  desire  to  say  to  the  gentleman  that 
I  represent  no  one  except  my  constituents  on  this  floor.  Other  people  do  not  dictate  to 
me  how  I  shall  make  speeches.  The  whole  line  of  your  argument  here,  I  respectfully 
submit,  is  to  put  the  opponents  of  this  measure  in  the  position  of  having  gotten  together 
and  made  schemes  as  to  how  they  shall  defeat  it,  and  I,  for  one,  sir,  resent  it. 

Mr.  Meredith:  I  think  the  gentleman  from  Roanoke  is  the  last  man  in  this  body 
who  has  any  right  to  resent  anything  on  this  floor,  when  he  recalls  the  fact  that  he 
stood  on  this  floor  and  stated  that  those  of  us  who  were  opposing  this  measure  were 
prompted  by  the  fact,  that  we  are  sullen  and  dissatisfied,  because  we  are  not  employed 
by  railroads. 

Mr.  Robertson:  I  said  nothing  of  the  kind.  I  leave  it  to  the  record  if  what  I  said 
was  not  that  if  there  was  prejudice  on  one  side  it  was  in  favor  of  the  railroad,  there 
probably  was  prejudice  on  the  other  side,  and  I  leave  it  to  this  Convention  whether  I 
made  any  attack  on  the  motive  or  character  of  any  man  in  this  Convention.  On  the 
contrary,  I  distinctly  denied  that  I  intended  to  do  so. 

Mr.  Meredith:  Oh,  that  general  denial  is  like  your  line  of  argum.ent,  along  general 
lines.  You  make  specific  statements  and  then  undertake  to  make  general  denials.  Let 
us  see  what  the  gentleman  said: 

I  think  any  man  is  apt  to  have  a  kindly  feeling  towards  the  man  who  employs 
him;  but  you  must  recollect  that  the  unkind  feelings  that  some  of  these  gentlemen 
manifest  by  their  action,  though  they  deny  them,  and  I  believe  they  deny  them  hon- 
estly, are  probably  induced  by  the  fact  that  they  have  not  a  pass  and  do  not  draw  a 
salary  from  a  railroad. 

Mr.  Robertson:    I  admit  I  said  that. 

Mr.  Meredith:  I  say  it  looks  to  me  as  if  men  who  have  passes  in  their  pockets 
undertake  to  divert  attention  from  that  fact  by  charging  that  others  who  have  not 
passes  in  their  pockets  are  influenced  by  sullenness  and  dissatisfaction,  and  that  they 
have  no  right  to  complain  of  my  mild  irony,  without  any  intention  of  insult. 

Mr.  Chairman,  there  has  not  been  a  man  who  has  argued  on  the  other  side,  who  has 
not  undertaken  to  claim  that  those  of  us  who  are  fighting  for  this  measure  are  in- 
fluenced by  motives;  and  that  we  are  so  bitter  and  stirred  by  so  much  feeling  and  are 
so  unwise  that  we  cannot  judge;  but  that  the  railroad  attorneys  are  alone  entitled  in 
this  body  to  be  listened  to  as  men  of  judgment,  men  of  prudence,  men  of  forethought. 

Mr.  Chairman,  I  am  the  last  man  in  the  world  who  wants  to  draw  any  attention 
to  the  fact  as  to  what  may  be  a  man's  personal  relations.  I  proposed  to  argue 
this  question  upon  such  lines  as  I  thought  v/ere  legitimate,  but  I  have  a  right,  when  I 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2365 


see  this  line  of  attack  made  in  this  way,  without  any  regard  as  to  whether  it  was  by 
consultation  or  not,  to  show  that  one  after  the  other  abandons  his  position,  and  some- 
body else  comes  to  the  attack  upon  a  different  line. 

Now,  Mr.  Chairman,  let  us  get  down  to  something  that  is  important.  In  passing 
any  measure  of  importance,  we  ought  always,  of  course,  to  ask  whether  there  is  any 
need  and  any  demand  for  it.  Not  only  have  the  advocates  of  the  majority  report  been 
represented  on  this  floor  as  men  who  were  influenced  by  unvv^se,  injudicious  feeling, 
ideas,  and  lack  of  knowledge,  but  even  those  men  we  represent  have  been  described  as 
m.en  who  did  not  know  what  they  wanted,  who  are  ignorant  as  to  their  needs,  who 
could  not  see  the  effect  of  their  prayers,  and  that  they  ought  to  be  ignored,  and  that 
nobody  ought  to  be  regarded  as  being  able  to  consider  this  thing  properly  except  the 
railroads. 

I  am  told,  Mr.  Chairman,  that  in  the  city  of  Danville  there  met  a  body  of  business 
men  last  May,  before  this  body  convened.  They  were  business  men,  men  who  pay  these 
rates,  and  whose  goods  are  classified  according  to  the  schedule  of  classification.  These 
business  men  came  from  all  the  cities  of  the  Commonwealth.  They  met  there  and  de- 
termined that  they  would  ask  this  Convention  to  adopt  a  constitutional  provision  to 
protect  them  from  the  railroads  in  matters  of  this  kind.  They  even  anticipated  the 
meeting  of  this  body,  and  they  employed  a  professor  of  Washington  and  Lee  University 
to  draft  the  bill,  which  was  first  presented  here. 

In  the  light  of  such  facts,  can  it  be  possible  that  any  man,  who  is  fair-minded,  can 
undertake  to  say  these  men  do  not  want  this  thing,  that  there  is  no  demand  for  it? 
When  we  find  men,  not  wild  men,  not  Populists,  but  prudent  business  men,  men,  if  you 
choose,  whose  only  nerve  that  affects  them  is  the  pocket  nerve — I  care  not  how  you 
describe  them — men  of  knowledge  in  matters  of  this  kind,  before  this  Convention  met 
they  determined  that  they  would  ask  the  Convention  for  the  protection  of  the  business 
interests  of  this  State.  They  employed,  not  some  lawyer  for  a  fee,  but  they  got  a  pro- 
fessor, Professor  Willis,  of  Washington  and  Lee  University,  to  draft  the  bill  which  was 
presented  here,  with  slight  amendment,  by  the  gentleman  from  Danville. 

Sir,  if  you  were  trying  a  man  upon  his  life,  and  the  question  was  as  to  whether 
there  had  been  any  premeditation  of  the  act,  could  j^ou  produce  stronger  proof  than  I 
offer  you  here,  as  to  what  is  the  feeling  and  the  demand  of  these  business  men  upon  this 
proposition? 

That  is  what  they  did,  and  they  got  this  bill  drafted  and  presented  here  to  this 
body.  Since  the  bringing  in  of  the  majority  report,  what  do  v/e  find?  We  fi.nd  pre- 
sented here  to  us  the  endorsement  of  a  committee,  v/hich  was  appointed  by  those  busi- 
ness men,  signed  by  them,  asking  that  the  majority  report  may  be  adopted.  That  com- 
mittee represents  the  Chambers  of  Commerce  of  Richmond,  of  Newport  News,  of  Lynch- 
burg, of  Danville,  of  Petersburg,  and  of  Norfolk.  I  do  not  know  whether  these  gentle- 
men are  able,  I  do  not  know  whether  they  are  so  ignorant,  that  they  did  not  know  what 
they  were  asking,  as  the  gentleman  frona.  Petersburg  seemed  to  think.  The  gentleman 
from  Petersburg  can  tell  us  as  to  whether  the  men  who  signed  this  paper  are  intelli- 
gent citizens  of  his  city.  Their  names  are  Bartlett  Roper  and  R.  D.  Gilliam.  I  pre- 
sume they  are  men  of  intelligence.  They  were  selected  by  the  business  men  of  Peters- 
burg to  represent  them  upon  this  proposition;  and  they  have  signed  this  paper  asking 
that  this  particular  report  should  be  adopted.  The  gentleman  from  Petersburg  yester- 
in  closing  one  of  his  remarks,  said:  "If  you  will  not  accept  truth  like  this,  you  would 
not  listen  to  one  even  though  he  rose  from  the  dead." 

How  about  this  evidence  to  prove  that  these  men  want  this  measure,  this  particu- 
lar measure?  The  voice  comes  from  Petersburg,  in  opposition  to  the  gentleman  from 
Petersburg;  the  voice  comes  from  Norfolk  in  opposition  to  the  gentleman  from  Norfolk, 
and  the  voice  comes  from  Lynchburg  and  from  Danville  and  from  Richmond. 

So  I  ask  you  to  pause  one  moment  and  see  whether  there  is  any  demand  for  this 
thing.    The  gentleman  from  Roanoke  said  what?    Why,  sir,  that  there  has  been  no  popu- 


2366  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

lar  clamor  for  this  thing  in  a  legislative  contest.  Would  the  gentleman  from  Roanoke 
prefer  a  great  political  clamor,  aroused  by  some  stump  speakers,  in  preference  to  the 
resolutions  of  business  men  anticipatory  of  a  meeting  of, this  Convention,  and  following 
it,  after  the  Convention  has  produced  its  report,  by  earnest  requests  that  the  report  be 
adopted?  Would  you  prefer  the  clamor  of  a  political  fight  to  the  calm  consideration  of 
business  men,  to  the  deliberate  judgment  of  these  men,  formed  before  you  met,  and 
simply  increased  and  strengthened  by  the  fact  that  they  have  seen  the  bill  now  pre- 
sented. They  come  again  and  say,  "We  presented  to  you  a  bill,  gentlemen,  that  was 
drawn  by  an  able  man.  We  find  that  you  did  not  accept  that  in  full.  You  have  pre- 
sented us  another.  We  will  accept  that."  How  could  I  offer  you  stronger  proof  that 
the  business  men  of  this  State  want  this  thing? 

I  then  have  a  right  to  say  that  I  speak  the  voice  of  the  cities  of  this  Common- 
wealth, not  only  the  city  of  Richmond,  but  the  voice  of  the  cities  of  this  Common- 
wealth, when  I  say  they  have  come  here  first,  and  asked  you  to  give  this  relief,  and 
now  when  you  have  offered  to  them  the  relief  contained  in  this  report,  they  thank  you 
for  it,  and  ask  that  you  will  carry  it  through  and  make  it  the  law  of  the  land. 

Mr.  Chairman  and  gentlemen  of  the  committee,  so  much  for  the  cities:  I  have  no 
right  to  speak  for  the  counties  of  the  Commonwealth,  but  I  will  ask  any  man  v/ithin 
the  hearing  of  my  voice  to  rise  on  this  floor  now,  or  at  any  time  during  this  discussion, 
and  say  that  he  does  not  believe  and  is  not  morally  certain,  that  if  this  question  were 
submitted  to  the  people  of  any  county  in  this  State,  they  would  demand  it  overwhelm- 
ingly. Now,  let  me  hear  any  man  deny  it;  you  gentlemen  who  represent  county  con- 
stitutents,  ought  you  to  shrink  from  this  duty.  Mark  you,  I  do  not  think  that  it  is  the 
duty  of  any  man  to  follow  blindly  his  constituents.  There  is  nothing  I  have  greater 
contempt  for  than  the  proposition  that  a  man  must  sacrifice  and  surrender  his  intelli- 
gence and  his  sense  of  moral  duty  to  the  demands  of  anybody;  but  I  ask  any  gentle- 
man on  the  floor  of  this  Convention,  who  represents  a  county  constituency,  to  rise  and 
say  here  that  he  believes  the  people  of  his  county  do  not  want  this  thing.  Nobody 
answers.  Then,  Mr.  Chairman,  are  we  not  justified  in  drawing  the  conclusion,  that  all 
classes  of  this  State,  those  that  live  in  the  cities  and  those  that  live  in  the  counties, 
feel  that  they  have  a  right  to  demand  at  your  hands  the  passage  of  this  law;  that  you 
feel  confident,  that  if  you  would  only  give  them  an  opportunity  to  vote  upon  it,  they 
would  endorse  it  heartily  and  fully,  if  not  unanimously. 

Now,  Mr.  Chairman,  I  have  said  I  do  not  believe  in  anybody  following  blindly  the 
demands  of  his  constituency,  but  I  do  believe  this,  that,  coming  here  as  representatives, 
it  is  always  our  duty  to  yield  to  the  requests  or  demands  of  our  people,  unless  we  can 
give  them  full  and  satisfactory  reasons  to  the  contrary.  I  announce  that  as  a  proposi- 
tion that  I  would  like  to  have  denied,  that  it  is  the  duty  of  a  representative  to  yield 
to  the  wishes  and  demands  of  his  constituency,  unless  he  surrenders  to  a  wrong,  unless 
he  surrenders  to  an  injustice. 

Mr.  Chairman,  if  there  is  no  doubt  about  that  proposition,  we  are  face  to  face  with 
this:  We  know  our  people  want  it.  Many  of  them  have  demanded  it.  We  must  stand 
before  them  an^  say,  "These  are  my  reasons  for  not  obeying  your  behest."  What  are 
they?  What  has  been  the  main  reason— and  all  the  others  have  simply  gathered 
around  it — that  has  been  offered  to  the  Convention,  why  this  report  should  not  be 
passed?  Because  it  ought  not  be  in  the  Constitution.  Can  you  satisfy  your  people 
with  a  reason  of  that  kind.  You  cannot  tell  them  in  general  terms  that  it  ought  not  to 
be  in  the  Constitution?  Have  you  not  got  to  back  that  up  with  some  other  reason  to 
satisfy  the  intelligent  men  of  your  community  or  your  county?  Do  you  suppose  they 
are  going  to  say  they  recognize  a  Constitution  to  be  of  so  holy  a  nature  that  nothing 
ought  to  be  put  in  there  except  what  everybody  regards  as  necessary  to  go  in  there? 
Do  you  not  know  that  they  are  going  to  demand  that  you  give  them  some  reason,  be- 
sides the  mere  dictum  that  you  have  offered  on  this  floor,  that  a  certain  paper  ought  not 
to  be  in  the  Constitution? 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTION  OF  YIRGINIA. 


2'367 


What  reason  can  you  give  ^-hen  you  find  that  not  only  the  people  demand  it,  the 
people  of  cities  and  of  the  counties  of  the  Commonwealth,  but  when  you  find  that  the 
gentlemen  who  stand  on  this  floor  as  opponents  of  this  measure  admit  that  the  people 
are  entitled  to  some  redress,  that  it  would  be  wise  to  put  some  restriction  on  these  rail- 
roads, that  some  power  ought  to  be  given  to  some  State  authority  to  have  control  over 
the  fixing  of  rates  and  the  classification  of  goods;  that,  in  addition  to  the  demands  of 
the  people,  you  have  the  concession  from  the  other  side  that  this  thing  is  necessary 
somewhere,  at  some  time,  in  some  place.  Your  people  say  that  this  is  the  place.  And 
the  only  answer  you  give  them  is,  "No,  I  approve  of  it;  I  think  the  thing  is  a  good 
thing;  I  like  the  terms  of  the  bill;  there  are  some  things  about  which  I  differ,  but  do 
not  ask  me  put  it  in  the  Constitution." 

Mr.  Robertson:  When  you  w'ere  running  for  the  Convention,  did  you  not  sign  a 
letter,  in  reply  to  some  questions  that  were  asked  candidates  here  stating  that  there 
were  some  things  you  approved  of,  but  that  you  did  not  think  the  Constitution  was  the 
place  to  put  them? 

Mr.  Meredith:  I  did,  sir,  and  I  changed  my  mind  about  it.  In  that  paper  I  said 
also  that  I  wahted  every  man  who  voted  for  me  to  distinctly  understand  that  I  was  not 
to  be  bound  by  any  answer  in  that  paper,  and  that  I  proposed  to  exercise  my  judgment 
on  all  questions  when  I  came  here.  I  have  always  recognized  my  right  to  exercise  my 
judgment,  but  I  deny  my  right  or  your  right  to  run  counter  to  the  wishes  of  your  con- 
stituency, simply  upon  the  dictum  that  a  thing  ought  to  be  a  legislative  enactment 
instead  of  a  constitutional  provision.  It  is  not  a  satisfactory  reason,  unless  you  can 
show  by  some  principle  that  it  ought  not  to  be  in  the  Constitution. 

Nov/,  Mr.  Chairman,  the  gentleman  from  R.oanoke  has  seen  fit  to  interrupt  me  just 
at  this  time;  and  it  recalls  to  my  mind  that,  when  he  was  on  the  floor  discussing  this 
question,  as  he  said,  along  "  general  lines,"  I  tried  to  interrupt  him,  to  ask  him  a  ques- 
tion. He  declined  to  allow  me  to  do  so,  saying  he  was  arguing  along  "general  lines"* 
and  did  not  see  how  a  question  would  be  appropriate  and  when  I  told  him  I  wanted  to 
ask  a  question  along  "general  lines,"  even  that  was  not  satisfactory  to  him.  I  wanted 
to  ask  the  gentleman  from  Roanoke,  when  he  was  undertaking  to  tell  us  that  thig 
measure  was  not  to  be  in  the  Constitution,  to  give  me  some  principle  by  which  I  could 
be  guided.    I  shall  not  take  his  dictum,  much  as  I  admire  his  intelligence. 

Mr.  Robertson:  The  principle  I  laid  down  was  that  when  you  are  enacting  a 
legislative  enactment,  no  one  can  see  how  it  will  operate  practically.  All  laws  have  to 
be  amended  from  time  to  time  to  meet  questions  that  come  up  under  it  that  we  cannot 
foresee,  and  for  that  reason  we  ought  not  to  make  it  a  permanent  law  that  cannot  be 
easily  amended,  in  order  to  meet  the  construction  of  a  court,  or  to  meet  some  new  case 
that  arises  under  it  where  it  needs  an  amendment.  That  was  the  principle  I  advocated, 
and  if  it  is  a  false  principle,  of  course  the  gentleman  has  the  right  to  argue  that  it  is. 

Mr.  Meredith:  The  gentleman  begs  the  question  by  saying  that  a  legislative  thing 
ought  not  be  put  in  the  Constitution.  I  want  some  clean-cut  statement  to  me  as  to  when 
a  thing  ought  to  be  legislative  and  when  it  should  be  constitutional.  I  will  give  such 
a  principle  before  I  get  through.  I  do  not  care  how  able  these  gentlemen  are,  and  I 
recognize  their  ability;  but  when  they  come  upon'  this  floor  and  tell  me  that  and  this 
and  that  ought  not  go  into  the  Constitution,  it  is  perfectly  unsatisfactory.  I  must  have 
some  principle  by  which  I  can  be  guided  in  making  up  my  mind.  Because  I  can  under- 
stand that  this  gentleman  may  have  a  bias  this  way,  and  this  gentleman  a  bias  that 
way,  and  his  opinion  as  to  whether  a  thing  ought  to  go  in  the  Constitution  will  be 
undoubtedly  affected  by  his  bias.  I  want  some  principle  by  w^hich  a  man  can  be  guided 
in  a  matter  of  this  kind. 

I  was  saying,  Mr.  Chairman,  that  not  only  has  the  demand  come  up  from  the  cities 
of  this  Commonwealth,  but  it  will  come  up  from  the  counties,  if  you  once  let  them 
have  a  voice  in  this  matter.  The  gentlemen  on  the  other  side  have  admitted  upon  this 
floor  that  there  is  a  necessity  to  protect  the  people.    You  go  to  the  people  and  say. 


2368 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


"Gentlemen,  our  opponents  have  said  there  was  this  necessity;  that  these  railroads 
violate  the  laws  in  our  State;  that  they  refuse  to  recognize  the  rights  of  the  people  of 
the  State;  that  they  impose  upon  them  burdens  that  are  unjust,  and  in  the  fact  of  all 
that  we  determined  it  was  not  a  thing  to  go  in  the  Constitution."  Do  you  expect  them 
to  accept  any  such  statement  as  that,  except  with  the  indignation,  if  not  the  contempt 
it  deserves?  Let  me  see  what  have  been  the  reasons  offered  by  the  gentlemen 
here,  as  to  why  this  thing  should  not  go  in  the  Constitution.  Do  I  ask  you  any  un- 
reasonable thing  when  I  say  this?  Believe  me,  gentlemen,  if  any  reason  could  be  given, 
it  would  have  been  given  by  the  able  attorneys,  who  have  been  so  long  connected  with 
these  railroad  corporations  that  they  know  the  workings  of  them.  Do  you  not  believe 
that  if  any  reason  could  have  been  given  why  this  thing  should  not  go  in  the  Constitu- 
tion, it  would  have  been  given  by  these  able  attorneys  who  are  here  so  earnestly  pro- 
testing against  it?  Have  you  any  reason  to  believe  they  have  held  back  any  good 
reason?  Do  you  not  know  that,  pursuing  the  different  lines  of  attack  they  have  in- 
troduced, they  have  pressed  forward,  with  all  the  earnestness  and  all  the  eloquence  of 
which  they  are  capable,  every  conceivable  reason  why  it  should  not  go  into  the  Con- 
stitution? 

Now,  if  there  is  any  man  here  who  has  another  reason  that  has  not  been  given,  I 
should  like  to  hear  it.  But  I  take  it  for  granted  that  v/hen  the  gentleman  from 
Fauquier  (Mr.  Hunton),  the  gentleman  from  Norfolk  (Mr.  Brooke),  the  gentleman 
from  Roanoke  (Mr.  Robertson),  the  gentleman  from  Frederick  (Mr.  Harrison),  and  the 
gentleman  from  Petersburg  (Mr.  Hamilton)  have  discussed  a  question  as  fully  as  these 
gentlemen  have  discussed  it,  they  have  given  every  conceivable  reason  why  this  report 
should  not  go  into  the  Constitution. 

Now,  what  are  they?  Mr.  Chairman,  some  French  cynic  said  that  language  had 
been  given  us  to  conceal  our  thoughts,  and  frequently,  Mr.  Chairman,  it  certainly  hides 
the  sense  of  a  proposition.  Lay  aside  now  all  the  verbiage,  lay  aside  all  the  earnest 
eloquence,  lay  aside  all  the  rounded  sentences,  lay  aside  all  the  sneers  and  sarcasms, 
and  come  down  to  a  plain  common  sense  examination  of  the  discussion  which  has  taken 
place  on  this  floor,  and  see  whether  I  do  any  injustice  when  I  say  that  there  have  been 
only  three  arguments  offered  here  why  this  report  should  not  go  into  the  Constitution. 

One  was  as  to  the  length  of  it,  another  was  as  to  giving  "paramount"  powers  to  this 
board,  and  the  other  was  the  danger  of  drafting  it, 

I  know  there  has  been  a  great  deal  said;  I  know  there  has  been  a  good  deal  of 
repetition,  I  know  there  has  been  a  great  deal  of  eloquence  and  earnestness  as  to  the 
evils  that  would  come  from  this  thing;  but  I  ask  you  to  recall  any  reason  that  has  been 
given  here,  except  the  three  little  reasons  I  have  enumerated.  If  the  gentleman  from 
Roanoke  can  think  of  any  other,  I  should  like  to  hear  it. 

I  ask  the  gentlemen  of  this  Convention  whether  I  have  done  the  gentleman  from 
Roanoke,  or  the  gentleman  from  Fauquier,  or  the  gentleman  from  Frederick,  or  the 
gentleman  from  Norfolk,  or  the  gentleman  from  Petersburg  any  injustice  when  I  have 
said  that  the  grounds  upon  which  they  say  a  thing  of  this  kind  should  not  go  in  the 
Constitution  are  three,  first  the  length  of  it,  second  the  "paramount"  powers  given  in 
it,  and  third  the  danger  of  drafting  it.    Now,  let  us  hear  any  other. 

Now,  gentlemen,  let  us  take  them  in  order.  First,  the  length  of  it.  Is  a  Consti- 
tution judged  by  the  yard?  Do  you  measure  a  Constitution  like  you  do  a  bushel  of 
potatoes?  Is  it  always  to  be  one  size?  Is  it  to  contain  so  many  paragraphs  or  so  many 
lines  or  so  many  words.  Why,  the  aesthetic  sense  of  the  gentleman  from  Roanoke  was 
shocked  with  the  idea  of  having  any  Constitution  longer  than  five  pages,  because  some- 
where back  in  the  past  a  Convention  in  Virginia  had  adopted  a  Constitution  of  five 
pages. 

I  ask  again,  is  the  length  of  a  thing  to  be  put  in  opposition  to  the  merit  of  it? 
Why  Mr.  Chairman,  if  you  tell  one  of  these  plain  common  sense  farmers  that  you  did 
not  put  a  thing  in  the  Constitution  because  it  was  too  long,  and  somebody  alongside  of 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


23G9 


you  said  "  But  it  was  a  good  thing,"  what  do  you  think  he  would  think  of  it?  He  would 
say  "I  do  not  care  if  it  was  a  mile  long;  if  it  remedies  the  evils  under  which  I  suffer, 
I  want  it.  I  do  not  care  what  my  forefathers  did."  The  idea  of  any  gentleman  as  well 
acquainted  with  the  history  of  this  State  as  is  the  gentleman  from  Roanoke,  undertak- 
ing to  compare  a  Constitution  at  this  day  with  one  passed  in  177G,  when  he  knows  that 
the  State  of  Virginia  had  changed  from  the  condition  of  a  colony,  with  a  House  of  Bur- 
gesses, a  State  Council,  and  a  Governor,  and  that  her  power  of  passing  laws  was  un- 
limited save  that  they  had  to  be  subject  to  the  approval  of  the  king.  When  our  fore- 
fathers undertook  to  draw  the  first  constitution  they  were  influenced  by  those  broad 
powers  they  had  had,  and  they  could  not  see  into  the  future  as  to  the  dangers  that 
would  demand  restrictions,  provisions  and  limitations!  Why  is  the  gentleman  guided 
by  the  fact  that  the  Constitution  of  1776  was  only  five  pages?  I  will  say  to  him  that 
there  has  not  been  a  Constitution  adopted  since  then  that  has  not  violated  his  aesthetic 
sense  as  to  the  size  of  a  Constitution.  Every  Constitution  has  been  in  the  question  of 
size  a  violation  of  the  preceding  Constitution. 

Bul,  Mr.  Chairman,  am  I  not  dwelling  too  long  upon  a  thing  that  is  not  worthy  of 
discussion,  when  I  undertake  to  discuss  the  question  of  the  length  of  a  paper  that 
should  go  in  the  Constitution?  Am  I  not  undertaking  to  discuss  a  proposition  that 
none  of  you  gentlemen  are  willing  to  accept,  when  presented  to  you  in  the  naked  shape 
in  which  I  present  it? 

When  covered  and  dressed  up  with  all  the  eloquence  and  the  words  of  these  gen- 
tlemen, it  presents  a  very  strong  and  forcible  aspect;  but  when  you  strip  it  of  its  robes 
of  verbiage  and  present  it  in  the  naked  skeleton,  you  see  it  is  simply  whether  you  will 
keep  a  provision  out  of  the  Constitution  because  it  is  a  few  pages  longer  than  usual. 

Now,  Mr.  Chairman,  as  to  the  second  reason  that  has  been  given  here,  namely, 
that  it  gives  "paramount"  powers.  AVhat  do  you  propose  to  do  with  the  proposed  com- 
mission? If  you  put  it  in  the  Constitution,  do  you  not  propose  to  give  it  constitutional 
powers.  Do  you  know  any  department  of  the  State,  which  is  worth  putting  in  the  Con- 
stitution, to  vrhich  you  do  not  give  constitutional  powers,  and  constitutional  protection? 
Do  you  not  do  it  as  to  your  Governor?  Do  you  not  do  it  as  to  your  Judiciary,  as  to 
your  counties,  as  to  your  cities,  as  to  your  school  boards,  as  to  your  penitentiary  boards, 
your  agricultural  boards,  and  as  to  every  department  of  the  State,  that  is  worthy  of 
being  in  the  Constitution?  It  ought  not  to  be  in  the  Constitution  if  you  do  not  give  it 
constitutional  protections  and  constitutional  power.  Nothing  is  worthy  of  being  in 
the  Constitution  if  it  is  to  be  the  creature  of  the  Legislature,  if  it  is  simply  to  be  at  the 
will  and  the  power  of  the  Legislature.  It  then  becomes  a  legislative  duty,  and  a  thing 
fit  for  legislative  enactment;  but  when  we  recognize  that  it  ought  to  be  in  the  Consti- 
tution, there  ought  to  be  thrown  around  it  the  power  of  the  Constitution  to  protect  it 
from  legislative  encroachment  or  judicial  encroachment. 

Can  any  man  deny  a  principle  like  that;  that  when  anything  is  worthy  of  going 
into  the  Constitution,  it  ought  to  be  given  constitutional  powers;  and  that  if  it  is  not 
worthy  of  being  given  constitutional  powers,  it  should  be  kept  out  of  the  Constitution? 

I  say  this  expression  of  "paramount"  powers  is  simply  the  expression  of  the  same 
idea  that  you  convey  when  you  say  in  the  Constitution  that  the  Judiciary  shall  have 
such  powers,  the  Legislature  shall  have  such  powers,  the  school  boards  and  the  cities, 
&c.,  shall  have  such  powers.  They  cannot  be  taken  away  by  the  Legislature  or  any 
other  department.  They  are  constitutional  powers.  They  are  "paramount;"  to  use  the 
word  which  shocked  the  sense  of  the  gentlemen  from  Roanoke.  To  every  department  of 
government  that  you  recognize  in  the  Constitution  you  give  constitutional  or  "para- 
mount" powers,  as  well  as  constitutional  protection. 

So  I  say  there  is  nothing  in  that  word:  nothing  in  the  fact  that  you  give  to  this 
commission  some  powers  and  some  duties  by  the  Constitution,  and  hence  make  them 
"paramount."  I  shall  endeavor  presently,  when  I  come  to  discuss  this  report,  to  show 
you  how  limited  these  powers  are,  how  restricted  and  confined  they  are.    But  I  am  say- 


2370 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


ing  now,  that  the  more  that  they  are  given  "  paramount "  powers  ought  not  to  shock 
the  sense  of  anybody,  unless  he  happens  to  be  fighting  the  use  of  a  word,  because  it  has 
not  been  used  in  the  Constitution  before.  The  word  paramount  is  not  used  as  to  the 
other  departments,  but  the  effect  is  the  same,  by  giving  them  constitutional  powers; 
therefore,  do  not  let  us  be  fighting  any  longer  over  the  shadows  of  doubt,  which  seem  to 
arise  from  the  use  of  a  word  so  easily  understood. 

Now,  Mr.  Chairman,  I  come  to  what  is  called  the  danger  of  drafting  this  meas- 
ure. A  great  deal  of  discussion  has  been  had  here  as  to  the  inaccuracy  in  drafting  this 
report.  Can  the  gentleman  who  brought  in  the  minority  report  brag  that  they  tried 
to  perfect  the  phraseology  of  this  report?  Will  the  gentlemen  who  signed  the  minority 
report,  who  tell  us  that  the  drafting  of  this  report  has  been  so  evil  and  so  mistaken 
and  so  erroneous,  tefl  us  whether  they  bent  their  intellects  to  assist  in  correcting  those 
evils,  before  it  was  brought  in?  I  want  to  say,  in  justice  to  the  gentleman  from  Peters- 
burg, that  upon  the  Committee  of  Finance  and  Taxation,  while  he  had  different  views 
from  some  of  us  as  to  certain  matters,  and  while  he  proposed  to  maintain  them,  that 
when  the  principle  was  settled  by  the  committee,  he  bent  his  able  mind  to  assisting  us 
in  the  draft  of  our  report,  and  gave  us  great  assistance  in  preparing  it,  so  that  there 
should  be  no  verbal  inaccuracies  in  it,  and  we  are  indebted  to  him  for  his  wonderful 
accuracy  of  statement. 

Mr.  Hunton:  The  gentleman  is  correct  in  saying  that  no  effort  was  made  by  the 
minority  to  aid  in  correcting  this  phraseology,  because  they  never  had  any  opportunity 
to  give  such  aid;  the  report  never  having  been  read  to  the  committee  or  discussed  in 
the  committee  after  its  final  draft  was  made. 

Mr.  Braxton:  I  desire  to  make  a  correction  of  the  statement  that  the  gentleman 
from  Fauquier  has  made.  He  is  in  error,  I  think,  in  this,  and  I  desire  merely  to  re- 
fresh his  memory.  The  report  was  presented  to  the  committee  formally  in  its  final 
draft,  three  days  before  it  was  finally  adopted,  and  a  copy  was  furnished  to  each  mem- 
ber. In  substance  the  same  report  or  the  same  document  had  been  discussed  before 
the  committee  and  before  the  individual  members  of  it,  and  discussed  by  the  repre- 
sentatives of  the  railroad  people  before  the  committee  in  the  court  room  of  the  Court 
of  Appeals,  for  several  weeks  prior  to  that,  and  when  the  vote  was  taken  the  question 
was  first  asked  whether  anybody  present  desired  to  discuss  it.  Each  man  was  called 
upon  by  name  to  say  whether  he  desired  to  be  heard  upon  it  before  the  vote  was  taken, 
and  the  vote  was  not  taken  until  each  person  present  said  he  did  not  desire  to  discuss 
it.  I  am  sure  my  friend  will  recall  the  circumstances  since  I  refresh  his  memory  in 
that  respect. 

Mr.  Hunton:  I  desire  to  say  that  the  statement  of  the  gentleman  from  Augusta,  I 
think,  is  not  at  variance  with  mine.  What  I  said  was  that  the  report  of  the  majority 
of  the  committee  upon  the  subject  was  never,  in  its  final  draft,  presented  to  the  com- 
mittee, read  to  the  committee,  nor  was  there  ever  any  committee  discussion  of  it. 
There  were  general  discussions  of  the  general  principles.  My  friend  is  correct  in  say- 
ing that  a  copy  of  the  report  was  furnished  to  the  individual  members  of  the  com- 
mittee. There  is  no  question  of  that;  but  what  I  say  is  that  that  report  was  adopted 
as  a  whole  without  ever  having  been  read  to  this  committee  and  without  ever  having 
in  its  final  draft  had  committee  consideration  or  discussion.  Therefore,  it  was  impos- 
sible to  make  any  effort  to  amend  or  correct,  or  change  the  language  when  it  was 
never  read  to  the  committee,  and  there  never  was  any  committee  discussion  of  its  lan- 
guage or  of  its  details. 

I  desire  to  say  I  should  never  have  alluded  to  the  subject  except  for  what  was  said 
by  the  gentleman  from  Richmond  (Mr.  Meredith).  I  thought  when  he  made  that 
charge  against  the  minority  of  the  committee  it  was  proper  and  right  that  the  facts 
should  be  given  with  reference  thereto. 

Mr.  Meredith:  Mr.  Chairman,  of  course  I  did  not  intend  to  charge  the  gentleman 
from  Fauquier  with  any  neglect  of  duty.    I  do  not  know  what  took  place  in  the  com- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2371 


mittee,  but  I  cannot  conceive  it  possible  tliat  if  the  gentleman  from  Fauquier,  or  the 
gentleman  from  Norfolk,  had  desired  to  insist  on  correcting  anything  in  the  phrase- 
ology of  that  report,  and  had  suggested  anything  of  that  kind,  whether  they  had  had 
an  opportunity  or  not  before,  it  would  have  been  most  readily  granted  to  them,  and 
their  assistance  would  have  been  most  heartily  received. 

But  whether  that  be  true  or  not,  do  not  let  us  undertake  to  listen  to  this  cry  of 
drafting,  when  we  say  to  them  now  "You  shall  have  the  opportunity  here  on  this  floor; 
and  every  error  of  phraseology,  every  verl:al  inconsistency,  every  mistake  or  doubtful 
expression  of  this  report,  you  gentlemen  shall  have  an  opportunity  to  amend,  so  that 
you  shall  give  to  the  people  of  this  State  something  you  will  not  be  afraid  of,  because 
of  its  phraseology." 

So  do  not  let  us  be  driven  off  by  shadows  like  that.  If  these  gentlemen  see,  as  the 
gentleman  from  Petersburg  yesterday  thought  he  saw  in  many  instances  errors  in  this 
report,  when  we  come  to  consider  the  report  in  detail  we  will  be  glad  to  receive  from 
the  gentlemen  who  are  opponents  of  this  measure,  all  the  assistance  they  can  give. 

So  do  not  put  yourselves  behind  the  idea  that  you  fear  the  mere  drafting.  I  want 
to  say  this,  that  I  am  sure  the  gentleman  from  Fauquier  if  he  believed  it  to  be  a  duty 
to  put  it  in  the  Constitution,  would  not  shrink  from  it  because  of  a  fear  of  its  phrase- 
ology. Nothing  v\'ill  actuate  the  gentleman  from  Fauquier  except  a  sense  of  duty,  and 
if  he  once  becomes  impressed  that  it  is  his  duty  to  put  this  thing  in  the  Constitution, 
I  will  guarantee  that  he  will  bend  his  efforts  to  it.  no  matter  what  may  be  the  dangers 
of  phraseology.  I  ask  for  the  same  courage  from  the  rest  of  you  gentlemen.  I  ask  for 
the  same  courage  for  my  friend  from.  Nansemond  (Mr.  Barnes)  that  the  gentleman 
from  Fauquier  I  know  possesses,  that  you  will  not  let  these  gentlemen,  by  a  criticism 
of  this  long  report  as  to  its  verbiage,  as  to  its  expression,  as  to  its  inconsistencies,  drive 
you  from  what  you  believe  to  be  your  duty  to  the  people,  but  that  when  we  come  to  con- 
sider these  things,  section  by  section,  you  will  then  bend  your  efforts  to  such  cor- 
rections as  are  proper  to  be  made.  And  I  believe,  that  in  the  united  effort  of  the  men 
of  this  Convention,  we  can  send  to  the  people  of  the  State  a  paper,  that,  as  to  its  phrase- 
ology, we  need  not  be  afraid.  I  ask  3'ou  gentlemen  to  exercise  the  same  courage  in  per- 
forming what  you  believe  to  be  a  duty,  that  the  gentleman  from  Fauquier  would  exer- 
cise if  he  should  once  become  impressed  with  the  idea  that  it  was  his  duty  to  put  such 
a  provision  into  the  Constitution. 

Now,  Mr.  Chairman,  I  have  tried  to  go  over  all  the  three  arguments  which  have  been 
adduced  here,  as  to  why  this  report  should  not  be  put  in  the  Constitution.  I  have  tried 
to  take  them  up  seriatim.  I  have  tried  to  present  them  to  you  fairly.  I  have  tried  to 
show  you  that  they  are  mere  shadows,  that  there  is  no  force  in  them.  The  idea  of 
being  influenced  by  the  length  of  a  paper  as  to  whether  it  shall  go  into  the  Constitution 
instead  of  by  the  merits  that  is  contained  in  it,  and  the  necessity  that  calls  for  it,  is 
inconceivable  to  a  man  who  is  moved  by  common  sense. 

The  idea  of  one  being  driven  away  from  this  measure  because  of  the  use  of  the 
word  "paramount,"  when  the  same  idea,  although  not  in  the  same  words,  is  expressed 
as  to  all  other  departments,  in  the  present  Constitution,  the  coming  Constitution  and 
all  past  Constitutions,  is  to  me  devoid  of  all  reason.  The  idea  of  shrinking  from  the 
performance  of  a  duty  to  save  the  people  of  this  State  from  injury  and  wrong  and  in- 
justice, which  even  the  opponents  of  this  measure  admit  to  exist,  because  you  fear  your 
power  of  drafting,  is  to  my  mind  so  pitiable — I  was  about  to  use  another  word,  but  I 
will  not — that  I  cannot  conceive  of  any  man  on  this  floor,  worthy  to  represent  any  con- 
stituency of  this  State  shrinking  for  one  moment  for  any  such  reason. 

Then,  if  these  reasons  fail,  can  you  hope  to  have  others?  If  these  able  gentlemen, 
these  eminent  gentlemen,  men  who  are  posted  about  matters  of  this  kind,  cannot  offer 
you  any  other  reasons  than  those  I  have  cited  to  you,  will  you  please  tell  me  what  reply 
you  propose  to  make  to  your  people  when  you  go  back  and  tell  them  that  when  the 
cities  of  the  Commonwealth  asked  for  protection  you  refused  it.   ^lien  you  remember 


23,72' 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


that  whenever  you  put  a  railroad  burden  upon  a  city,  the  counties  have  to  pay  it  just 
as  much  as  the  city  does,  what  reply  will  you  give  when  you  go  hack  to  your  people  and 
tell  them  the  cities  asked  for  the  protection  of  both  cities  and  counties  and  you  re- 
fused it? 

When  your  constituents  shall  know  that  the  opponents  of  the  bill  recognized  the 
necessity  for  some  correction  and  some  protection,  are  you  going  to  still  harp  on  that 
excuse  that  is  now  so  worn,  so  threadbare,  that  hardly  any  man  dare  stand  upon  it;  the 
excuse  that  it  ought  to  be  a  legislative  enactment,  and  not  a  Constitutional  provision? 

Mr.  Chairman,  I  said  a  little  while  ago  that  when  the  gentleman  from  Roanoke  was 
making  his  argument  here  a  few  days  ago,  I  interrupted  him  for  the  purpose  of  asking 
him  to  give  me  some  principle  by  which  I  could  be  guided  in  a  matter  of  this  kind.  I 
did  not  want  to  accept  the  dictum  or  the  ipse  dixit  of  the  gentleman  from  Fauquier, 
however  able  he  may  be,  nor  would  I  accept  that  of  the  gentleman  from  Norfolk,  strong 
man  as  I  know  him  to  be,  intellectually;  but  I  am  willing  to  be  guided  by  principles; 
and  if  he  or  any  other  man  on  this  floor  can  offer  me  any  principle  by  which  I  can  be 
guided,  that  would  show  me  I  would  be  doing  wrong  in  putting  this  measure  into  the 
Constitution,  I  would  then  bow  and  acknowledge  his  superior  wisdom. 

I  said  I  would  give  a  principle  by  which  we  can  be  guided,  and  I  propose  to  do  it; 
and  I  ask  the  gentleman  from.  Roanoke,  or  the  gentleman  from  Fauquier,  or  the  gentle- 
man from  Norfolk  or  any  other  gentleman  on  this  floor,  to  deny  the  correctness  of  it. 
Mr.  Chairman,  in  order  that  I  may  be  accurate  in  the  expression  of  it  I  propose  to  read 
it.  I  have  taken  the  care  to  write  it  down;  and  I  announce  it  as  the  principle  which 
ought  to  guide  us  in  this  matter.    I  ask  your  careful  consideration  of  it. 

I  say  that  as  a  principle,  "whenever  there  grows  up  in  society  a  large  class  of  people 
with  special  and  extraordinary  powers,  the  exercise  of  which  affects  the  whole  body  of 
the  people  in  their  daily  walks,  in  their  daily  bread,  and  is  so  powerful  as  even  to  affect 
the  Legislature  of  the  State,  then  it  is  the  duty  of  the  people  to  reform  and  alter  their 
Constitution  in  such  manner  as  shall  be  judged  most  conductive  to  the  public  weal, 
by  putting  all  reasonable  restrains  on  this  power  and  making  it  forever  subject  to  such 
restrictions." 

Is  there  any  man  who  can  deny  the  justice  and  the  correctness  of  that  principle? 
Is  there  a  man  who  is  a  bitter  or  earnest  opponent  of  this  measure  who  will  deny  the 
wisdom  of  the  principle  I  have  just  announced? 

Mr.  Chairman,  the  idea  is  based  upon  the  Bill  of  Rights.  The  gentleman  from 
Roanoke  has  talked  to  us  about  the  beautiful  symmetry  of  the  Constitution  of  1775, 
because  it  had  five  pages.  Previous  to  the  adoption  of  the  Constitution  I  think  there 
was  written  a  Bill  of  Rights,  which  went  along  as  part  of  that  Constitution.  In  that 
Bill  of  Rights,  Mr.  Chairman,  you  find  an  expression  like  this,  that  I  submit  justifies 
the  principle  I  have  announced,  "  That  whenever  a  government  shall  be  found  to  be 
inadequate  or  contrary  to  these  purposes,  a  majority  of  the  community  hath  an  indubi- 
table, inalienable  and  indefeasible  right  to  reform,  alter  or  abolish  it  in  such  manner  as 
shall  be  judged  most  conducive  to  the  public  weal." 

Therefore  I  say  that  instead  of  running  contrary  to  the  teachings  of  our  forefathers, 
if  we  become  satisfied  that  our  present  Constitution  does  not  meet  the  necessities  of  the 
day,  it  is  declared  in  the  Bill  of  Rights  to  be  our  duty  to  alter,  reform  or  abolish  it  in 
such  manner  as  may  be  most  conducive  to  the  public  weal. 

Now,  I  proceed,  Mr.  Chairman,  to  the  application  of  the  principle  that  I  announced. 
I  ask  whether  there  has  grown  up  in  society  a  large  class  of  people  who  exercise  special 
and  extraordinary  powers  which  affect  the  large  body  of  the  people  in  their  daily  work, 
in  their  daily  bread.  Is  there  any  such  power  existing  in  this  State?  Need  I  pause  for 
an  answer? 

Is  it  not  the  unanimous  consent  of  all  present,  the  admission  of  every  member  of 
this  body  that  there  does  exist  just  that  dangerous  condition  of  special  and  extraordinary 
powers?    If  it  exists,  does  it  affect  the  people  in  their  daily  walk,  in  their  daily  work, 


DEBATES  OF  THE  COXSTTTUTIOXAL  COXVEXTIOX  OF  YIRGIXIA.  2373 

in  their  daily  bread?  Tell  me,  Mr.  Chairman,  what  is  not  affected  by  railroad  tariffs? 
As  has  been  said  of  the  National  tariff,  it  follows  us  from  the  cradle  to  the  grave.  There 
is  nothing  we  buy  that  has  not  been  affected  by  it.  There  is  nothing  we  eat  that  is 
not  affected  by  it.  There  is  nothing  we  wear  or  use  the  price  of  which  has  not  been 
affected  by  it. 

We  cannot  fail  to  recognize,  Mr.  Chairman,  the  existence  of  these  great,  special  and 
extraordinary  powers  affecting  the  large  body  of  the  people,  affecting  them  in  their  daily 
work  and  in  every  utensil  they  use  in  there  daily  work,  affecting  them  even  in  their 
daily  bread.  So  I  submit  that  I  have  shown  to  you  the  application  of  the  first  part  of 
the  principle  which  I  announced. 

I  come  now  to  the  second  part  of  that  principle,  and  I  ask  whether  I  cannot  show 
the  application  of  that.  It  is  this.  This  class  is  so  pov/erful  that  it  has  affected  the 
Legislature  of  the  State  in  its  enactments  as  to  public  needs  and  public  weal.  Do  I 
need  any  proof  in  this  body  as  to  that?  Do  I  need  any  proof  from  ajiy where  as  to 
that?  Has  not  this  body  declared  that  so  great,  so  injurious,  so  tyrannical,  has  been 
the  exercise  of  these  powers  by  the  class  owning  them  that  it  proposes  to  overturn  what 
has  been  the  system  of  this  Government  for  100  years,  and  declare  that  the  Senate  of 
Virginia  shall  no  longer  be  divided  into  two  classes.  Need  I  ask  for  higher  proof  than 
that?  It  has  been  recognized  by  us  in  Convention  assembled,  and  declared  in  the 
article  upon  the  Legislative  Department,  that  so  great  has  been  this  evil,  so  pov/erful 
are  these  people  and  that  the  legislatures  of  this  State  have  been  so  frequently  throttled 
in  the  performance  of  their  duties,  that  it  has  become  necessary  for  us  to  overturn  the 
system  of  government  we  have  had  for  100  years,  and  demand  that  the  Senate  of  Vir- 
ginia shall  no  longer  be  constituted  as  it  has  been. 

Along  that  line  of  thought  I  followed  the  distinguished  gentleman  from  Lynchburg 
(Mr.  Glass),  and  the  distinguished  gentleman  from  Fairfax  (Mr.  Moore),  and  the  dis- 
tinguished gentleman  who  now  presides  over  us  (Mr.  Keezell),  and  the  gentleman  from 
Danville  (Mr.  Withers),  each  and  all  of  whom  had  been  members  of  that  body,  who 
knew  whereof  they  spoke,  who  told  us  that  it  was  necessary  that  this  change  should 
be  made,  that  the  people  might  have  protection.  Now  when  we  come  and  ask  you  for 
protection  upon  the  ground  that  they  will  throttle  us  in  this  also,  will  you  tell  us  to 
trust  to  them? 

Mr.  Chairman,  you  cannot  satisfy  your  people  by  any  such  talk.  They  are  willing 
to  trust  you,  but  if  ever  they  think  for  one  moment  you  are  not  performing  that  trust; 
that  in  one  respect  you  see  the  path  of  danger  and  avoid  it,  but  that  when  you  come  to 
it  in  another  measure  you  refuse  to  recognize  it,  you  cannot  expect  fhem  to  have  the 
least  confidence  in  your  judgment. 

I  say  I  have  satisfied  you,  it  seems  to  me,  as  to  the  application  of  the  principle 
announced  by  me  in  both  its  divisions,  as  to  the  effect  upon  the  people  of  the  State  in 
their  every-day  life,  and  also  as  to  its  powerful  effect  upon  the  Legislatures  of  the  State. 
I  say,  having  shown  you  the  application  of  it,  have  I  not  a  right  to  demand,  if  the 
principle  I  announce  be  correct,  that  you  shall  so  alter  and  modify  your  Constitution  in 
such  manner  as  would  be  most  conducive  to  the  public  weal,  so  that  this  great  power 
shall  be  put  under  reasonable  restraints,  and  that  it  shall  forever  remain  subject  to 
those  reasonable  restrictions?  I  ask  every  one  of  you  to  meet  fairly  the  principle  I 
announce,  to  see  whether  the  circumstances  of  our  situation  do  not  justify  the  applica- 
tion  of  it 

I  shall  not  press  the  point  further.  The  men  of  this  body  are  too  intelligent  to 
need  constant  repetition  of  a  clean,  clear  idea.  I  submit  to  your  consideration  the 
simple  question  whether  the  principle  I  announce  as  a  guide  for  putting  the  measure 
in  the  Constitution  is  correct;  and,  having  answered' that,  I  ask  you  to  answer  one  other 
question,  and  one  only,  and  that  is  whether  I  have  not  shown  you  the  application  of 
the  principle  as  to  the  question  now  under  discussion. 

Mr.  Chairman,  I  appreciate  most  highly  the  kind  attention  that  has  been  accorded 


23,74 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTIOl^  OF  VIRGINIA. 


me  by  the  committee.  I  am  glad  to  say  that  I  am — I  was  about  to  say  drawing  to  a 
close,  but  I  do  not  know  that  I  can  say  exactly  that.  But  I  have  gotten  through  most 
of  what  I  intended  to  say. 

I  should  like  to  have  some  answer  to  this  proposition,  that  if  the  principle  I  have 
announced  be  correct,  and  the  application  I  have  shown  you  be  true,  pray  tell  me  who 
is  thinking  of  protecting  the  State  when  opposing  in  this  measure?  Does  she  not  need 
protection?  It  is  recognized  that  she  does.  Why  should  you  throw  all  the  safeguards 
around  this  powerful  class  of  people  that  you  say  have  controlled  your  Legislatures? 
Why  do  you  not  protect  the  people  of  the  Commonwealth  from  that  injustice,  from  that 
tyranny,  from  that  wrong?  Sir,  these  corporations  have  ample  protection.  Any  man 
Who  reads  this  measure  will  see,  first,  that  before  any  rate  is  changed  it  is  to  be  done 
by  three  men  who  are  to  be  selected  by  the  Governor  of  the  State.  It  is  but  fair  to 
presume  that  he  will  do  his  duty  honestly  and  will  try  to  make  wise  selections.  Hence, 
before  any  rate  is  changed,  you  have,  first,  the  protection  of  these  three  men,  who,  it  is 
fair  to  presume,  will  act  in  a  reasonable  manner.  The  State  has  no  protection  unless 
you  give  it;  but  even  if  you  give  the  State  that  protection,  at  the  same  time  you  give  to 
the  corporations  the  same  protection  by  saying,  "  These  men  to  whom  I  trust  my  for- 
tunes, these  men  whom  I  have  selected  as  the  men  who  will  give  me  the  protection  I 
need,  will  give  you  the  same." 

But,  Mr.  Chairman,  that  is  not  all.  I  do  not  propose  to  stop  to  discuss  the  question 
as  to  whether  this  commission  is  to  be  the  horrible  monster  that  it  has  been  painted  on 
this  floor.  It  is  a  wild  assumption,  and  an  unjust  presumption,  to  tliinlc  the  Governor 
of  this  State  proposes  to  select  rascals  or  robbers  or  thieves;  and  I  will  guarantee  that 
the  selection  of  the  Governor  will  by  no  means  be  as  bad  as  those  men  who  have  been 
denounced  by  the  Interstate  Commerce  Commission  for  their  willingness  to  lie,  and  to 
destroy  the  records  of  their  rascality. 

So  I  say,  Mr.  Chairman,  you  first  must  discredit  the  Governor  of  the  State  before 
you  think  any  wrong  is  to  be  done  to  these  people,  because  he  has  the  power  to  appoint 
them.  You  must  then  go  one  step  further,  and  think  these  three  men  are  going  to  do 
this  great  wrong  to  these  people  and  destroy  their  existence.  But  then  you  have  got 
to  go  still  further.  You  have  got  to  believe  that  the  Supreme  Court  of  the  State  will 
uphold  them  in  their  rascality.  Great  heavens,  is  there  nothing  in  this  State  to  which 
we  can  give  our  confidence  but  railroad  presidents.  Must  the  honor  and  integrity  of 
all  the  authorities  of  this  State  go  down  in  comparison  to  these  men?  Must  the  Gover- 
nor of  the  State  be  a  shame  and  a  disgrf^^e  alongside  of  them?  Must  the  judiciary  of 
the  State  be  infamous  in  comparison  with  them?  We  are  asked  to  stamp  them  so  by 
men  who  claim  to  love  their  old  State. 

Mr.  Chairman,  I  cannot  believe  that  you  will  think  for  one  moment  of  giving  cre- 
dence to  these  wild  statements  that  have  been  m.ade  here  as  to  the  robbery  that  will  be 
perpetuated  upon  these  corporations,  if  you  trust  them  to  high  authority  to  be  created 
by  this  measure.  But,  Mr.  Chairman,  if  that  be  so,  even  if  all  of  us  be  rotten,  even  if 
our  high  judiciary  are  unworthy  of  being  trusted,  there  stands  yet  a  power  to  protect 
them— the  Supreme  Court  of  the  United  States.  That  court  has  time  and  time  again 
recognized  its  right  to  protect  corporations  under  the  amendment  of  the  Constitution 
declaring  the  equal  protection  of  the  law. 

So,  ample  protection  is  given  them.  In  the  first  place,  these  fears  are  idle  and 
imaginary  and  unfounded,  but,  even  if  the  danger  they  fear  exists,  they  have  their  pro- 
tection, first  in  the  commission,  second  in  the  Supreme  Court  of  the  State,  and  then  they 
go  up  higher  to  the  highest  court  of  the  land,  and  knock  there  and  ask  for  protection. 
Where  is  the  danger  of  destruction  which  we  have  had  presented  to  us  here  in  such 
gloomy  colors,  when  all  the  authorities  of  the  entire  nation.  State  and  national,  are  open 
to  these  gentlemen  for  assistance  and  protection? 

Mr.  Chairman,  I  cannot  think  we  will  for  one  moment  allow  ourselves  to  be  misled 
by  any  such  fear  as  has  been  portrayed  here  by  these  gentlemen  who  are  opposing  this 
measure. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOisT  OF  VIRGINIA. 


2375 


Let  us  go  now,  Mr.  Chairman,  hurriedly  over  this  report;  because  it  has  been  gone 
over  so  often,  and  you  have  been  so  patient  with  me,  that  I  shall  not  do  more  than  dis- 
cuss in  a  hurried  manner  the  provisions  of  this  bill;  not  for  the  purpose  of  criticising 
its  phraseology — I  think  that  ought  to  be  done  when  we  come  to  consider  it  section  by 
section — but  to  show  you  that  no  great  power  is  given  to  this  commission,  considering 
the  great  power  that  they  will  have  to  control? 

Is  it  not  true,  as  a  principle,  that  the  power  given  to  the  authority  ought  to  be 
comm^ensurate  with  the  necessity  for  it?  Is  it  not  true  that  it  would  be  idle  to  give  a 
power  to  this  commission  that  would  not  reach  the  extreme  of  the  necessity?  Would 
you  be  doing  your  duty  in  giving  a  povv^er  that  cannot  cure  the  evil?  Is  it  not  your  duty, 
when  you  see  that  this  evil  exists,  to  throw  over  all  the  people  of  the  State  the  aegis  of 
this  measure?  So,  I  say,  Mr.  Chairman,  when  we  come  to  deal  with  this  matter,  do  not 
let  us  deal  with  it  in  a  petty  manner;  do  not  let  us  trifle  with  it;  let  us  recognize  the 
extent  of  the  evil;  and  let  us  give  power  commensurate  with  it.  And  I  say  that  noth- 
ing more  than  that  has  been  done  in  this  measure. 

I  believe,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  when  this  general 
discussion  is  over,  and  that  when  we  get  down  to  the  particular  sections  of  this  bill, 
you  will  find  that  there  is  going  to  be  but  one  attack,  one  earnest  full  effort  to  defeat 
this  paper,  and  if  that  does  not  succeed,  there  will  be  no  future  trouble,  but  we  will  have 
the  assistance  of  these  gentlemen.  A  great  deal  has  been  said  about  the  different  pro- 
visions of  this  bill.  A  great  deal  has  been  said  as  to  the  phraseology  of  the  different 
sections  of  it;  but  Mr.  Chairman,  the  real  fight,  the  real  attack,  that  has  been  and  is 
being  made  upon  this  bill  is  against  sub-section  B  of  section  4.  On  nothing  else  do  I 
expect  any  great  fight.  There  is  where  they  propose  to  make  the  fight,  because  there 
is  where  they  fear  the  power,  and  there  lies  the  burden  and  the  benefit  of  this  measure. 
If  you  throttle  that,  then,  in  pity,  cast  out  the  whole  measure,  because  it  then  becomes 
useless,  emasculated,  idle  and  ridiculous. 

Now,  what  is  the  power  given  there?  I  do  not  propose  to  go  over  the  bill  and  read 
the  sections  minutely,  but  I  want  to  call  your  attention  to  the  fact  that  there  is  only 
given  there  the  power  of  control  of  these  transportation  companies  as  to  the  perform- 
ance of  their  public  duties  and  their  charges  therefor.  That  language  is  said  to  be 
excessively  broad,  extremely  dangerous.  Mr.  Chairman  is  there  any  other  creature  in 
this  State  that  has  to  perform  a  public  duty  that  is  higher  than  the  law?  What  system 
of  government  was  ever  instituted  that  recognized  that  anybody  could  have  the  per- 
formance of, a  public  duty  and  not  be  responsible  to  public  authority?  What  are  the 
principles  of  government  that  these  gentlemen  are  proclaiming  here?  That  there  must 
exist  in  a  nation  a  power  which  is  required  to  perform  public  duties  and  shall  not  be 
responsible  to  public  authority  to  the  fullest  extent,  to  make  it  perform  those  public 
duties?  Name  me  any  other  creature,  natural  or  artificial,  that  is  not  subject  to  the 
restraint,  the  control,  the  punishment  of  the  public  authorities. 

Mr.  Thom:  I  merely  wanted  to  know  for  my  own  information,  whether  or  not 
there  is  a  State  that  the  gentleman  knows  of  where  the  powers  are  as  broad  as  these? 

Mr.  Meredith:  I  shall  show  you  before  I  get  through.  I  am  going  to  read  to  you 
the  Constitution  of  that  State,  and  1  hope  w^hen  I  read  it  we  will  abandon  this  Virginia 
conceit  that  we  have  all  the  wisdom  in  our  midst  and  that  nobody  can  give  any  more  to 
us,  not  even  a  North  Carolinian.  I  will  give  the  answer  at  the  proper  time.  The  gen- 
tleman, I  know,  does  not  insist  upon  it  now? 

I  was  discussing  this  line  of  thought,  Mr.  Chairman,  that  there  ought  to  be  no 
creature,  natural  or  artificial  existing  in  any  State  government  which  has  to  perform 
public  duties,  that  ought  not  to  be  subject  to  public  authority,  public  restraint,  public 
control;  and  I  use  the  language  that  is  used  in  this  section  with  full  approbation, 
"control."  Do  not  let  us  shrink  from  it.  Our  first  duty  is  to  our  State,  and  our  State 
can  never  thrive  by  letting  exist  in  her  midst  anything  superior  to  her.    The  march  of 


2376  DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA. 

progress  should  never  be  assisted  by  wrong.  Prosperity  should  never  come  from 
injustice. 

So,  I  say,  Mr.  Chairman,  instead  of  thinking  that  word  "control'!  is  wrong,  it  meets 
my  fullest  approbation  upon  every  conceivable  line  of  thought  as  to  the  true  principles 
of  government.  As  able  and  as  honest  as  is  the  Attorney-General  of  this  State,  if  ho 
fails  to  perform  his  duty  is  he  not  liable  to  be  removed  from  office?  Are  not  the  highest 
officers  in  the  State  subject  to  impeachment  for  non-performance  of  public  duties?  Tell 
me  a  high  officer  of  this  State  who  is  not  subject  to  control,  control,  control.  I  do  not 
shrink  from  the  word.  Then,  why  should  not  corporations  as  to  the  public  duties  be 
subject  to  State  "control." 

So,  I  say,  Mr.  Chairman,  instead  of  striking  out  that  word,  let  us  keep  it  in  as  a 
clean-cut  announcement  of  our  idea  of  duty  to  the  State,  that  every  person  who  has  a 
public  duty  to  perform  shall  be  subject  to  the  control  of  public  authority. 

One  more  section,  Mr.  Chairman,  and  then  I  shall  not  proceed  much  further,  be- 
cause I  want  to  read  to  you  an  article  of  the  Constitution  of  a  State  of  this  Union 
bearing  on  this  proposition,  in  answer  to  the  question  of  the  gentleman  from  Norfolk. 

I  will  now  read  from  page  8,  line  58,  of  the  report  to  show  what  paramount 
powers  are  given  to  the  commission: 

I 

The  authority  of  the  said  commission  (subject  to  review  on  appeal  as  hereinbe- 
fore provided)  to  prescribe  rates  of  charges  and  classification  of  traffic  for  trans- 
portation and  transmission  companies  shall  be  paramount.  What  does  that  mean? 
It  simply  means  that  the  Legislature  shall  not  take  away  from  this  commission 
this  right.  Just  as  it  cannot  take  away  from  the  School  Board  the  powers  and  duties 
given  to  it  by  the  Constitution.  Just  as  it  cannot  take  away  from  the  judges  of  this 
Commonwealth  the  rights  and  powers  and  duties  that  have  been  put  there  by  the 
Constitution.  So  as  to  every  department  of  the  government.  As  to  each  department 
there  are  some  duties  and  powers,  to  use  the  language  of  the  report,  v/hich  are 
"paramount"  to  the  Legislature.  The  language  just  read  shows  the  extent  that  you 
would  give  this  commission  "paramount"  power,  which  to  sit  like  three  judges, 
forming  a  great  court,  and  to  pass  upon  these  matters.  All  the  power  which  they 
are  given  over  and  above  the  power  of  the  Legislature  is  to  prescribe  the  rates  and 
classifications  of  traffic  for  transportation  and  transmission  companies;  and  not  one 
single  power  outside  of  that  has  been  given  "paramount"  to  the  power  of  the  Legis- 
lature. That  is  true,  not  only  because  the  report  specifies  as  to  what  powers  the 
commission  has  been  given  paramount  to  the  Legislature;  but,  not  satisfied  with 
that,  the  committee,  so  desirous  that  there  may  be  no  mistake  about  it,  has  in  ex- 
press terms  said,  "But  its  authority  to  prescribe  any  other  rules,  regulations,  and 
requirements  for  such  companies  shall  be  subject  to  the  superior  authority  of  the 
General  Assembly  to  legislate  thereon  by  general  laws." 

So  gentlemen,  there  lies  the  question.  You  have  got  to  decide  the  simple  question 
whether  or  not  this  commission,  subject  to  appeal  to  the  Supreme  Court  of  this  State, 
subject  to  appeal  to  the  Supreme  Court  of  the  United  States,  shall  have  paramount 
pov/er  in  this  limited  degree  as  to  rates  and  classification  of  traffic.  As  to  all  others  it 
is  subordinate  to  the  superior  power  of  the  General  Assembly. 

But  it  may  be  said,  Mr.  Chairman,  that  the  subsections  in  this  report  shall  not  be 
amended  by  the  General  Assembly  except  upon  suggestion  of  this  commission.  I  admit 
it.  But,  Mr.  Chairman,  do  not  let  us  be  frightened  by  that.  Do  not  let  us  throw  up 
our  hands  in  fear  simply  because  we  run,  as  the  gentleman  from  Roanoke  says,  with 
his  agreeable  sneer,  through  half  the  letters  of  the  alphabet  in  the  Fourth  Section. 
What  if  we  do?  What  if  we  run  through  every  letter  of  the  alphabet  and  then  go  to  the 
Chinese  language  to  borrow  more?  If  we  can  put  in  these  wise  restrictions  ought  not 
we  to  do  so,  even  if  we  use  all  the  numbers  known  to  the  mind  of  man?  But,  Mr. 
Chairman,  when  we  come  to  notice  those  subsections  we  will  see  that  some  are  protec- 
tions to  the  railway  company,  giving  them  appeals,  etc.?  Do  you  suppose  these  gentlemen 
who  are  crying  aloud  against  these  things  object  to  that?  Not  at  all.  But  theyare  simply 
trying  to  throw  upon  us  the  great  weight  of  their  criticism  as  to  the  length  of  the  Con- 
stitution, and  some  of  you  stand  off  in  fear  and  trembling. 


DEBATES  OF  THE  CONSTITUTIONAL 


CONVENTION  OF  VIRGINIA. 


2377 


I  have  a  brief  note  of  the  subsections  here. 

Let  us  take  subsections  A,  which  is  the  first  letter  used  in  Section  4.  That  gives 
the  commission  supervisory  power  over  charters,  to  see  that  the  charters  are  properly 
filed.  To  see  that  corporations  simply  perform  the  preliminary  duties  before  they  have 
got  a  right  to  come  into  existence.  To  see  that  they  really  become  corporations,  and 
do  not  remain  partnerships  with  the  liability  connected  therewith.  For  their  benefit 
and  for  the  benefit  of  the  State  it  is  provided  that  somebody  shall  see  that  the  charters 
are  properly  framed  and  taken  care  of,  and  that  the  general  laws  are  carried  out  in 
relation  to  them. 

Then  it  requires  the  payment  of  a  license.  Then  it  requires  that  the  commission 
shall  receive  certain  reports  that  the  Legislature  prescribes,  and  shall  take  them  and 
keep  them  in  proper  form.  Oh,  what  a  wonderful  power- that  is!  What  danger  lies  to 
the  corporations  in  giving  these  simple  powers,  which  have  virtually  existed  in  the  law 
of  the  State  for  a  number  of  years,  and  been  exercised  by  the  several  departments  of 
the  State.  Some  have  been  exercised  by  the  Secretary  of  the  Commonwealth,  some  by 
the  Board  of  Public  Works,  and  others  by  the  courts  of  the  Commonwealth. 

Then  we  come  to  subsection  B.  What  is  it?  The  power  is  given  to  it  to  supervise 
the  rates  and  classifications  and  other  public  duties.  There  is  the  real  power,  the  real 
question.  There  is  the  question  over  which  these  gentlemen  propose  to  fight.  They  do 
not  care  much  about  the  balance  of  the  report.  It  is  immaterial  to  them,  these  details. 
Subsection  B  is  their  real  objection.  They  are  simply  using  these  other  matters  to 
show  you  the  great  danger  of  putting  something  of  great  length  in  the  Constitution. 

When  you  come  to  subsection  C,  what  does  it  do?  It  gives  this  wonderful  power, 
this  dangerous  power,  this  power  that  is  going  to  destroy  the  prosperity  of  the  State 
and  bring  us  into  ruin  and  destruction.  It  gives  the  power  to  adminster  oaths  and 
summon  witnesses.  What  a  fearful  power,  what  a  great  danger!  Recall  the  lamenta- 
tions of  the  gentleman  from  Roanoke,  who  described  the  danger  and  sorrow  which  is 
coining  upon  this  State  if  we  decide  to  create  this  commission  which  is  given  the  power 
to  summon  witnesses  and  administer  oaths.  That  is  one  of  the  great  bugaboos  held 
up  to  you  by  these  gentlemen. 

I  call  your  attention  now  to  subsection  D.  It  provides  as  to  the  method  of  appeals. 
It  simply  shows  how  the  appeal  shall  be  taken,  saying  what  rights  the  Commonwealth 
shall  have  under  the  appeal.  What  is  the  reason  that  should  not  be  done?  Do  you  not 
want  this  thing  to  go  into  immediate  operation?  You  do  not  want  to  put  this  power 
into  the  Constitution  and  then  leave  the  modus  operandi  to  the  Legislature,  which  can 
cut  its  throat.  Do  you  propose  to  give  to  the  people  a  promise  to  the  ear  and  break  it 
to  the  hope?  Do  you  propose  to  give  to  this  Commission  something  tliat  will  be  certain 
and  effective,  or  do  you  propose  to  give  it  in  an  uncertain  and  useless  manner? 

Mr.  Chairman,  that  has  been  the  course  that  has  been  pursued  by  some  of  the 
Legislatures  of  this  State  as  to  other  remedies  against  railroads.  If  you  will  take  the 
trouble  and  have  the  curiosity,  I  would  advise  you  to  study  the  statute  in  regard  to 
fencing.  It  prescribes  it  to  be  the  duty  of  the  railroad  to  build  fences  along  the  farms 
through  which  they  pass,  but  it  attaches  at  the  end  of  the  bill  a  provision  that  no 
court  in  this  Commonwealth  shall,  by  mandamus  or  other  writ,  enforce  this  duty.  In 
the  light  of  such  a  fact  why  do  you  propose  to  turn  the  people  over  to  the  Legislature — 
I  do  not  mean  to  say  they  are  corrupt,  but  I  do  mean  to  say,  as  the  gentleman  from 
Lynchburg  has  said,  that  they  have  been  subject  to  influences  from  which  they  ought 
to  be  relieved. 

Now,  I  say,  Mr.  Chairman,  you  have  an  illustration  as  to  what  the  Legislature  can 
do,  how  it  can  cut  the  throat  of  a  wise  and  just  measure,  and  if  you  don't  provide  here 
so  that  this  measure  can  go  into  instant  operation,  some  reasonable  method  of  carrying 
it  into  effect,  you  might  as  well  refuse  to  pass  it,  because  it  will  simply  become  waste 
paper. 

I  might  go  on,  Mr.  Chairman,  and  show  you  the  same  thing  as  to  Section  E,  which 
150— Const.  Deb. 


23,78 


DEBATES  OF  THE  COISrSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


simply  tells  you  the  effect  of  the  appeal,  of  Section  P,  that  no  new  evidence  be  intro- 
duced and  how  the  record  shall  be  made  up. 

And  Section  G,  which  declares  nothing  but  what  shall  be  done  upon  reversal  by 
the  Supreme  Court  of  the  decision  of  the  commission.  Why,  the  gentleman  from 
Roanoke  stated  here  in  his  argument  on  this  question  that  this  report  goes  so  far  as  to 
tell  the  Supreme  Court  what  it  shall  do. 

It  simply  says  to  the  Supreme  Court  that  if  in  its  wisdom  it  sees  fit  to  reverse  the 
judgment  of  the  commission,  it  shall  then  enter  a  proper  judgment  as  to  what  shall  be 
the  rate  or  the  proper  classification.    What  is  wrong  in  that? 

Frequently  in  suits  between  individuals,  the  court  will  modify  the  decree  and  send 
it  back  confirmed  subject  to  modification,  and  order  it  to  be  carried  out  as  modified. 
Surely  such  a  power  is  necessary.  But  in  a  matter  like  this  the  court  might  not  have 
it,  unless  given  expressly.  After  having  gotten  a  decision  of  the  commission  in  the 
people's  favor,  if  an  appeal  be  taken,  and  the  court  should  hold  that  the  commission 
erred,  the  people  should  not  be  required  to  be  satisfied  with  a  mere  reversal.  The 
court  should  be  required  to  go  on  and  declare  what  should  be  done  by  the  corporation. 
Otherwise  another  fight  would  have  to  be  made  before  the  commission,  with  the  possi- 
bility of  another  appeal.  Surely  that  course  ought  to  be  avoided.  Hence  the  wisdom 
of  this  statement  as  to  what  the  court  must  do. 

Section  H  relates  to  the  right  of  an  individual  to  his  action  at  common  law;  that  it 
shall  not  be  affected.  That  simply  reserves  a  common  law  right  to  an  individual.  It 
simply  says  that  notwithstanding  these  regulations  and  powers  that  are  given  here  for 
the  State,  that  you  shall  not  take  away  from  the  individual  the  right  of  damages,  if  he 
has  any;  if  they  existed  before,  under  common  law  rules.  Is  that  a  great  evil?  That 
is  held  up  as  one  of  the  things  that  tend  to  lengthen  this  Constitution  to  such  an  ex- 
tent that  it  makes  it  a  monstrosity. 

The  next  subsection  is  I,  which  simply  says  the  Commission  shall  make  reports, 
shall  give  information  to  the  Legislature  and  the  Governor,  as  to  what  is  done  for  the 
benefit  of  the  Commonwealth  and  v/hat  has  been  done  for  its  protection. 

This  is  another  one  of  the  great  evils  that  gentlemen  point  out  to,  as  one  of  the 
things  that  ought  to  be  left  out.  Is  it  not  wise  and  just  and  beneficial  to  the  railroad 
and  beneficial  to  the  people? 

The  next  provision  is  as  to  the  power  of  amendment  of  subsections  B  to  K,  inclu- 
sive. I  want  to  say  one  word  about  that,  then  I  shall  take  up  the  Constitution  of  the 
State  that  the  gentleman  from  Norfolk  has  asked  me  about. 

You  v/ill  see  as  to  subsections  A,  B,  and  C,  the  Legislature  has  no  right  to  amend, 
and  why?  Because  those  are  paramount  and  constitutional  powers  over  and  above  the 
power  of  the  Legislature. 

The  first  is  as  to  the  creation  of  this  Commission — I  mean  as  to  seeing  that  the 
charters  are  properly  drafted  and  enrolled. 

The  other  is  as  to  the  power  to  regulate  rates  and  classifications  of  traffic.  The 
third  is  the  right  to  administer  oaths  and  summon  witnesses. 

Now  those  are  the  only  three  things  as  to  which  the  power  of  the  Legislature  is 
subordinate.  As  to  all  other  subsections,  it  has  the  power  to  amend  upon  the  recom- 
mendation of  the  commission. 

But  it  is  said  it  ought  to  have  this  power  of  itself,  that  it  ought  not  to  be  required 
to  ask  this  board  as  to  what  amendments  should  be  made. 

Upon  what  theory  is  that?  Do  we  not  know  that  if  this  board  is  antagonistic  to 
the  Legislature  that  you  might  pass  a  dozen  laws  and  they  would  simply  treat  them  as 
annullities?  Do  you  not  know  that  you  cannot  enforce  by  this  commission  any  of  those 
laws  except  such  as  meets  its  approval?  Do  you  not  know  it  will  be  practically  impos- 
sible? When  this  commission  shall  think  that  anything  is  necessary  they  are  going  to 
ask  for  it.  But  to  think  that  the  opponents  of  this  bill  should  be  holding  up  their 
hands  in  holy  horror  because  we  should  tie  the  hands  of  the  Legislature  about  this 
thing.  Why,  Mr.  Chairman,  what  harm  can  be  done  to  them?  Surely  they  cannot 
suffer  under  Sections  D,  E,  F,  G,  H,  L,  I  and  K. 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


2'3,79 


If  these  subsections  will  not  do  them  any  harm,  and  will  be  beneficial  to  the  State, 
Instead  of  objecting  to  them,  it  seems  to  me  our  opponents  ought  to  recognize  the  prin- 
ciple that  in  giving  the  commission  the  paramount  power  to  classify  freight  and  arrange 
the  rates,  we  ought  also  to  prescribe  the  method  in  which  these  powers  can  be  put  into 
operation. 

Now,  Mr.  Chairman,  I  have  already  said,  I  fear  I  have  said  it  so  often  that  you  will 
not  accept  my  declaration  any  longer  as  sincere,  that  I  thank  you  for  the  kind  attention 
you  have  given  me  in  this  matter. 

In  closing  I  want  to  show  that  this  measure  is  no  novel  idea.  Of  course  there  are 
details  in  this  report  which  do  not  exist  elsewhere.  A  man  would  be  an  unwise  states- 
man who  had  before  him  the  written  experience  of  other  people  and  was  aware  of  cer- 
tain dangers  and  say  the  pitfalls,  yet  would  not  avoid  those  evils.  And  that  has  been 
done  in  this  report.  If  you  turn  to  the  Constitution  of  Louisiana  you  will  find  the  same 
powers  and  sometimes  the  same  language  as  is  given  in  the  report.  It  was  a  mistake 
when  it  was  stated  on  this  floor  the  other  day  that  the  only  Constitution  that  had  such 
provisions  in  it,  were  the  Constitutions  of  California  and  Kentucky.  The  Constitution 
of  Louisiana  has  a  provision  of  this  character.  I  shall  read  it  to  you  to  show  you  that 
ih  has  been  followed  in  the  main,  although  there  have  been  wise  and  prudent  modifica- 
tions as  to  detail. 

Now,  I  ask  you  patience  while  I  read  an  article  of  the  Constitution  of  Louisiana. 
Upon  page  107 — and  the  calling  of  that  number  reminds  me  that  I  see  that  the  people 
of  that  wise  State  did  not  hesitate  to  adopt  a  Constitution  of  127  pages.  They  did  not 
fear  length,  provided  they  got  merit  and  benefit. 

I  shall  read  to  you  from  page  107.  It  is  headed  on  page  106,  "Railroad,  express, 
telephone,  telegraph,  steamboat  and  sleeping  car  company  commission." 

Article  283.  A  railroad  express,  telephone,  telegraph,  steamboat,  and  other  water 
craft,  and  sleeping  car  commission  is  hereby  created;  to  be  composed  of  three  mem- 
bers, to  be  elected  from  the  districts  hereinafter  named,  at  the  time  fixed  for  the 
Congressional  election  in  1898.    Of  the  three  commissioners  


Just  the  number  we  have- 


Elected  in  the  year  1898,  one  shall  serve  two  years,  one  shall  serve  four  years, 
and  one  shall  serve  six  years." — About  the  same  line  v/e  are  pursuing  in  our  re- 
port  

The  period  each  is  to  serve  to  be  determined  by  lot.  

I  think  we  have  the  same  wise  provision. 

Thereafter  the  commissioners  from  each  district  shall  be  elected  for  a  term  of 
«ix  years. 

The  term  of  oflice  which  I  think  is  prescribed  in  this  monstrosity,  the  majority 
report. 

They  shall  be  known  as  the  Railroad  Commission  of  Louisiana 
The  commission  shall  meet  and  open  an  office  and  have  its' domicile  at  Baton 
Rouge,  and  shall  elect  one  of  their  number  chairman,  and  may  appoint  a  secretary  at 
a  salary  of  $1,500  per  annum,  and  may  meet  and  hold  regular  or  special  hearings  at 
other  places  as  they  may  find  it  necessary.  No  member  of  this  Convention  shall  be 
Inno"^  election  or  appointment  as  a  member  of  said  commission  prior  to  the 
year  1908. 

Now,  Mr.  Chairman,  here  they  allow  them  to  hold  sessions  or  hearings  as  they  see 
tit.  They  may  have  special  meetings.  We  require,  as  this  is  an  important  measure 
and  the  railroad  interests  and  the  corporation  interests  in  this  State  are  getting  so 
large,  and  as  we  propose  to  give  these  men  good  salaries,  because  you  cannot  get  suit- 
able men  without  good  salaries,  that  the  commission  be  in  daily  session  so  that  the 
doors  of  justice  may  be  always  open  to  everybody. 


2380 


DEBATES  OF  THE  COJS^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


Article  284.  The  power  and  authority  is  hereby  vested  in  the  commission,  and 
it  is  hereby  made  its  duty  to  adopt,  change,  or  make  reasonable  and  just  rates, 
charges,  and  regulations,  to  govern  and  regulate  

We  say  "to  control  and  regulate."    They  say: 
To  govern  and  regulate. 

Railroads,  steamboats,  and  other  water  craft,  and  sleeping  car,  freight,  and 
passenger  tariffs  and  service,  express  rates  and  telephone  and  telegraph  charges, 
to  correct  abuses,  and  prevent  unjust  discrimination  and  extortion  in  the  rates  for 
the  same,  on  the  different  railroads,  steamboat,  and  other  water  craft,  sleeping  car, 
express,  telephone,  and  telegraph  lines  of  this  State,  and  to  prevent  such  companies 
from  charging  any  greater  compensation  in  the  aggregate  for  the  like  kind  of  prop- 
erty or  passengers,  or  messengers,  for  a  shorter  than  a  longer  distance  over  the  same 
line,  unless  authorized  by  the  commission  to  do  so  in  special  cases;  — 

Those  are  practically  the  same  provisions  contained  in  the  report  of  the  majority 
of  the  Committee  on  Corporations.    It  is  practically  the  same  language. 

To  require  all  railroads  to  build  and  maintain  suitable  depots,  switches,  and; 
appurtenances^  wherever  the  same  are  reasonably  necessary  as  stations. 

And  if  my  friend  from  Warren  (Mr.  O'Flaherty)  is  in  the  hearing  of  my  voice  I 
want  to  call  his  attention  to  that,  that  the  Louisiana  Constitution  does  not  require  the 
railroads  to  build  and  maintain  suitable  depots,  switches  and  appurtenances  wherever 
the  same  are  reasonable  and  necessary  at  stations,  and  to  inspect  railroads  and  require 
them  to  keep  their  tracks  and  bridges  in  a  safe  condition. 

All  these  are  public  duties.  These  things  are  not  simply  private  rights,  but  all  of 
these  things  are  public  duties,  and  the  Convention  of  Louisiana  was  wise  enough  to  see 
that  any  man  who  has  the  performance  of  a  public  duty  shall  be  subordinate  to  the 
public  power  and  public  authority. 

And  to  inspect  railroads  and  to  require  them  to  keep  their  track  and  bridges  in  a 
safe  condition,  and  to  fix  and  adjust  rates  between  branch  or  short  line  and  the  great 
trunk  lines  with  which  they  connect,  and  to  enforce  the  same  by  having  the  penalties 
hereby  prescribed  inflicted  through  the  proper  courts  having  jurisdiction. 

The  commission  shall  have  power  to  adopt  and  enforce  such  reasonable  rules, 
regulations,  and  modes  of  proceedure  as  it  may  deem  proper  for  the  discharge  of  its 
duties,  and  to  hear  and  determine  complaints  that  may  be  made  against  the  classi- 
fication or  rates  it  may  establish,  and  to  regulate  the  mode  and  manner  of  all  in- 
vestigations and  hearings  of  railroad  companies  and  other  parties  before  it,  in  the 
establishment  of  rates,  orders,  charges,  and  other  acts  required  or  authorized  by 
these  provisions. 

We  leave  some  of  this  power  to  the  control  of  the  Legislature.  Here  the  Constitu- 
tion of  Louisiana  puts  it  beyond  danger  of  the  Legislature. 

They  shall  have  power  to  summon  and  compel  the  attendance  of  witnesses,  to 
swear  witnesses,  and  to  compel  the  production  of  books  and  papers,  to  take  testi- 
mony under  commission,  and  to  punish  for  contempt,  as  fully  as  is  provided  by 
law  for  the  district  courts. 

Article  285.  If  any  railroad,  express,  telephone,  telegraph,  steamboat,  and  other 
water-craft  or  sleeping-car  company  or  other  party  in  interest  be  dissatisfied  with 
the  decision  or  fixing  of  any  rate,  classification,  rules,  charge,  order,  act  or  regulation, 
adopted  by  the  commission,  such  party  may  file  a  petition  setting  forth  the  cause  or  causes 
of  objection  to  such  decision,  act,  rule,  rate,  charge,  classification  or  order,  or  to  either 
or  to  all  of  them,  in  a  court  of  competent  jurisdiction,  at  the  domicile  of  the  commission, 
against  said  commission  as  defendant,  and  either  party  to  said  action  may  appeal  the 
case  to  the  Supreme  Court  of  the  State  without  regard  to  the  amount  involved,  and  all 
such  cases,  both  in  the  trial  and  appellate  courts,  shall  be  tried  summarily  and  by  prefer- 
ence over  all  other  .cases.  Such  cases  may  be  tried  in  the  court  of  the  first  instance 
either  in  chambers,  or  at  term  time;  provided,  all  such  appeals  shall  be  returned  tOs 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIRGINIA. 


^■381 


the  Supreme  Court  within  ten  days  after  the  decision  of  the  lower  court;  and  where 
the  commission  appeals  no  bond  shall  be  required.  No  bond  shall  be  required  of 
said  commission  in  any  case,  nor  shall  advance  costs,  or  security  for  costs,  be  re- 
quired of  the  commissioner. 

Article  286.  If  any  railroad,  express,  telephone,  telegraph,  steamboat  or  other 
water-craft,  or  sleeping-car  company,  subject  hereto,  directly  or  indirectly,  or  by 
any  special  rate,  rebate,  or  other  device,  shall  intentionally  charge,  demand,  collect, 
or  receive  from  any  person,  firm,  or  corporation,  a  greater  or  less  compensation  for 
any  service  rendered  by  it,  than  it  charges,  demands,  or  receives  from  any  other 
person,  firm,  or  corporalion,  for  doing  a  like  and  contemptoraneous  service,  or  shall 
violate  any  of  the  rates,  charges,  orders,  or  decisions  of  said  commission,  such  rail- 
road, steamboat,  or  other  water-craft,  express,  telegraph,  telephone,  or  other  com- 
pany, shall  forfeit  and  pay  to  the  State  not  less  than  one  hundred  dollars,  nor  more 
than  five  thousand  dollars — 

Now,  gentlemen  have  been  holding  up  their  hands  in  holy  horror  because  the  com- 
mission is  in  our  report  given  authority  to  fine  the  railroad  five  liundred  dollars. 
Louisiana  sees  fit,  in  order  that  its  requirement  shall  be  done,  which  it  says  shall  be 
done,  to  permit  the  imposition  of  a  fine  to  the  extent  of  five  thousand  dollars.  That  is 
wise.  That  is  the  way  to  make  people  obey  the  law.  The  best  way  is  to  have  a  fine 
running  from  a  small  one  to  a  large  one,  and  then  if  any  one  persists  in  violating  the 
law,  the  large  fine  may  be  imposed — 

to  be  recovered  before  any  court  of  competent  jurisdiction,  at  the  suit  of  said  com- 
mission, at  the  domicile  of  the  commission  or  of  the  company,  or  at  the  place  where 
the  complaint  arises,  at  the  option  of  the  commission:  Provided,  that  whenever  any 
rate,  order,  charge,  rule,  of  regulation  of  the  commission  is  contested  in  court,  as 
provided  for  in  Article  285  of  this  Constitution;  no  fine  or  penalty  for  disobedience 
thereto,  or  disregard  thereof,  shall  be  incurred  until  after  said  contestation  shall 
have  been  finally  decided  by  the  court,  and  then  only  for  acts  subsequently  com- 
mitted. 

The  power  of  the  commission  shall  affect  only  the  transportation  of  passengers, 
freight,  express  matter,  and  telegraph  and  telephone  messages  between  voints  within 
this  State,  and  the  use  of  such  instruments  within  this  State. 

Here  is  what  I  want  to  call  special  attention  to,  which  has  been  pointed  out  by  the 
opponents  as  being  a  great  evil  in  the  majority  report,  in  requiring  that  changes  in 
certain  sub-divisions  shall  be  made  by  the  Legislature  only  upon  the  recommendation 
of  the  commission. 

Article  288.  Upon  the  recommendation  of  the  commission,  the  Legislature  may 
add  to  or  enlarge  the  powers  and  duties  of  said  commission,  or  confer  other  powers 
and  duties  on  them. 

That  is  much  more  restrictive  than  I  thought.  That  does  not  allow  them  to  modify 
or  decrease  the  powers,  but  seems  only  to  allow  them  to  add  to  their  powers. 

They  may  also  provide  additional  clerical,  or  other  assistance,  that  may  be 
deemed  necessary  for  the  discharge  of  the  duties  of  said  commission,  and  may  add 
other  penalties  to  make  the  work  of  said  commission  effective. 

It  shall  be  the  duty  of  the  Attorney-General,  and  the  various  district  attorneys, 
to  aid  said  commission  in  all  legal  matters,  for  which  they  shall  receive  not  exceed- 
ing 25  per  cent,  of  all  fines  and  forfeitures  collected  bv  them:  Provided,  the  com- 
mission may  employ  other  attorneys  in  lieu  of  these  officers  on  like  terms. 

So  it  is  the  duty  of  the  various  district  attorneys  to  aid  the  commission  in  all 
legal  matters,  and  they  shall  receive  as  compensation  not  exceeding  25  per  cent, 
of  all  fines  and  forfeitures  collected  by  them. 

No  person  in  the  service  of,  or  attorney  for,  any  railway,  express,  telephone, 
telegraph,  steamboat,  or  other  water-craft,  sleeping-car  company,  or  corporation,  or 
pecuniarily  interested  in  such  company  or  corporations,  shall  hold  the  oflBce  of  com- 
missioner. 

That  is  along  the  line  of  the  majority  report  that  was  so  bitterly  commented  upon 
by  the  gentleman  from  Petersburg. 


2382  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

^  The  fines  collected,  after  paying  the  attorney's  fees  and  the  costs  in  suit,  in 
which  the  commission  may  be  cast  for  costs,  shall  be  paid  into  the  State  treasury. 

Now,  Mr.  Chairman,  I  have  shown  you  the  admission  of  the  gentlemen  who  oppose 
this  report.  I  have  shown  you  that  they  recognize  the  existence  of  this  evil,  and  that 
they  recognize  the  necessity  of  creating  some  power  to  restrain  these  corporations  and 
to  restrict  their  powers.  I  have  shown  you  that  the  demand  has  been,  not  that  there 
shall  be  legislative  enactment,  but  that  there  shall  be  a  constitutional  provision. 

In  opposition  to  that,  we  have  been  told  that  these  cries  have  come  up  from  people 
ignorant  of  their  wants.  I  have  shown  you  that  it  has  come  up  from  the  business  men 
and  business  sections  of  this  State.  I  have  shown  you,  in  addition  to  that,  Mr.  Chair- 
man, that  these  business  men  have,  through  their  business  associations,  their  traffic 
bureaus,  which  they  have  had  to  keep  in  existence  in  order  to  meet  these  issues;  have, 
by  their  traffic  bureaus,  prayed  to  you  that  you  give  them  constitutional  protection. 

I  have  answered,  so  far  as  I  have  been  able,  all  the  arguments  so  far  offered  why 
there  should  be  legislative  enactment  instead  of  a  constitutional  provision.  I  think  I 
have  been  able  to  show  you  that,  stripped  of  the  language  in  which  those  arguments 
were  so  beautifully  clothed,  and  viewing  them  simply  as  naked  ideas,  that  they  are  not 
worthy  of  much  consideration  in  the  decision  of  this  question. 

I  have  shown  you,  Mr.  Chairman,  as  far  as  I  was  able,  the  principle  by  which  we 
should  be  guided  in  this  matter.  I  have  stated  the  principle  and  have  heard  no  dissent 
from  it.  I  called  your  attention  not  only  to  the  principle,  but  to  the  application  of  the 
facts  to  both  branches  of  the  principle  so  announced  by  me,  and  have  shown  you  by  the 
proceedings  of  this  body  that  I  was  justified  in  saying  this  principle  demanded,  sa 
great  was  this  power,  so  great  had  been  this  evil  upon  the  Legislature  of  the  State,  that 
there  should  be  a  constitutional  provision, 

I  have  attempted  to  show  you  that  the  evils  to  flow  from  this  measure  have  been 
greatly  magnified,  and  that  the  powers  given  the  commission  are  very  restricted,  so  far 
as  they  are  "paramount." 

I  attempted  to  show  you  how  the  separate  sections  were  merely  questions  of  detail 
that  are  necessary;  that  the  details  are  necessary  in  order  that  this  article  may  be  put 
.in  operation,  which  you  deem  to  be  wise,  and  that  it  was  necessary  that  there  should 
be  constitutional  provisions  as  to  those  details. 

Upon  this  floor  you  have  been  told  that  nineteen  States  of  this  Union  have  seen 
the  necessity  of  this  thing;  that  nineteen  States  of  this  Union,  seeing  that  necessity,, 
have  exercised  the  wisdom  that  was  called  for.  I  have  shown  you  that  the  prayer  for 
this  measure  comes  not  from  ignorant  people,  who  do  not  know  their  own  wishes  and 
who  have  never  read  this  bill,  but  that  this  measure  was  commenced  by  business  men, 
and  the  original  draft  of  the  bill  was  drawn  by  a  gentlemamn  employed  by  them. 

I  have  shown  you,  in  addition,  from  the  Constitution  of  a  State  like  Louisiana, 
which  we  all  recognize  as  containing  some  of  the  ablest  men  in  this  Union,  that  the 
people  of  that  State  have  seen  fit  to  say  that  they  recognize  the  principle,  that  where 
there  exists  in  society  a  large  class  of  people  with  special  and  extraordinary  powers, 
which  effect  the  great  body  of  the  people  in  their  daily  walk  and  in  their  daily  bread, 
and  where  the  exercise  of  those  powers  has  been  such  that  the  Legislatures  of  the 
State  have  been  influenced  to  evil,  that,  if  it  becomes  necessary,  that  the  Constitution 
of  the  State  shall  be  amended  in  such  manner  as  to  best  conduce  to  the  public  weal  by 
putting  upon  the  class  exercising  that  power  some  reasonable  restrictions,  and  by  put- 
ting it  in  the  Constitution  in  order  that  the  restrictions  may  be  permanent,  for  the 
permanent  weal  of  the  people  of  their  State.  May  we  follow  that  wise  example. 
(Applause.) 

Mr.  Stebbins:  On  Monday  afternoon  the  gentleman  from  Fauquier  presented  a 
letter  from  Mr.  E.  D.  Hotchkiss,  general  freight  agent  of  the  Chesapeake  and  Ohio 
road  in  which  there  were  some  criticisms  of  the  manner  in  which  I  used  the  table  of 
rates  which  had  been  furnished  to  the  gentleman  from  Fauquier.    As  I  stated  in  my 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2383 


remarks  on  last  Saturday,  the  table  which  I  presented  and  which  I  relied  upon  for  my 
data  was  prepared  jointly  by  Mr.  W.  H.  Lumsden,  commissioner  of  the  Norfolk  Freight 
and  Traffic  Bureau,  and  Mr.  E.  S.  Goodman,  manager  of  the  Traffic  Bureau  of  the  Rich- 
mond Chamber  of  Commerce.  I  referred  this  letter  of  Mr.  Hotchkiss  to  these  gentle- 
men for  such  reply  as  they  might  deem  proper  and  I  now  present  that  reply: 

Richmond,  Va.,  February  11,  1902. 
Hon.  Joseph  StehHris,  Member  Constitutional  Convention,  Richmond,  Va.: 

Dear  Sir, — Complying  with  your  request  for  an  examination  of  the  statement 
submitted  by  the  Hon.  Eppa  Hunton,  Jr..  on  February  10th  in  connection  with  the 
letter  of  that  date  to  him  from  Mr.  E.  D.  Hotchkiss,  general  freight  agent,  Chesa- 
peake and  Ohio  Railway,  we  hope  to  be  able  herein  to  establish  the  fact  that  not 
only  was  the  comparison  of  rates  submitted  by  Mr.  Hunton  on  February  5th  a  mis- 
leading one,  but  also  that  the  statement  furnished  on  the  10th  inst.  and  the  expla- 
nation accompanying  sam.e  are  also  misleading. 

First  as  to  branch  lines. 

Those  portions  of  the  Southern  Railway  in  Virginia  which  are  designated  ^by 
Mr.  Hotchkiss  as  branch  lines  would  not  be  treated  as  such  by  the  North  Carolina 
Corporation  Commission  if  similarly  situated  in  that  State.  Not  only  is  this  so, 
but  portions  of  the  Southern  Railway  in  North  Carolina  which  would  have  greater 
reason  to  be  classed  by  Mr.  Hotchkiss  as  branch  lines  are  given  the  benefit  of  the 
standard  tariff  (presumably  the  lowest  rates  that  the  Corporation  Commission  of 
North  Carolina  fixes  for  the  Southern  Railway).  Consequently  the  stress  placed 
upon  the  main  line  rates  is  not  borne  out  by  facts,  and  it  is  evidently  the  idea  of 
the  North  Carolina  Corporation  Commission  to  allow  and  establish  by  a  system  of 
equitable  rates  a  free  interchange  of  freight  between  all  portions  of  the  Southern 
Railway  situated  in  North  Carolina,  including  even  a  large  number  of  branches,  a 
higher  rate  from  10  to  25  per  cent,  being  allowed  on  short,  and  in  most  cases  moun- 
tainous branches.  This  being  the  case,  a  comparison  between  certain  portions  of 
the  Southern  Railway  in  Virginia  and  similar  portions  in  North  Carolina  is  the 
only  proper  method  of  comparison.  For  example:  From  Statesville,  North  Caro- 
lina, to  Madison,  North  Carolina,  transported  over  the  Western  North  Carolina, 
Mooresville  branch,  the  main  line  between  G-reensboro  and  Charlotte  and  the  Madi- 
son branch,  a  distance  of  one  hundred  and  five  miles,  compared  with  rates  from 
Burkeville,  Virginia,  to  Edgerton,  Virginia,  transported  over  the  Richmond  divis- 
ion, Keysville  branch  and  the  Danville  division,  also  a  distance  of  one  hundred  and 
five  miles,  the  Southern  Railway  rates  are: 


1st 

2d 

3d 

4th 

5th 

6th 

Class. 

Class. 

Class. 

Class. 

Class. 

Class. 

In  North  Carolina — 

50 

40 

33 

25 

20 

16 

In  Virginia — 

57 

47 

39 

28 

24 

18 

Hay. 

Fertilizer. 

Lumber, 

Bacon. 

Grain. 

Flour. 

cl.  Icl. 

cl.  Icl. 

cl. 

In  North  Carolina — 

17 

12 

14 

12  16 

10  12 

6  2-3 

In  Virginia — 

21 

15 

18 

15  24 

13  15.6 

10  1-4 

Another  example — 

From  Statesville,  North  Carolina,  to  Wilkesboro,  North  Carolina,  transported 
over  the  Western  North  Carolina,  Mooresville  branch  and  Wilkesboro  branch,  a 
distance  of  one  hundred  and  twenty-eight  miles,  compared  with  rates  from  Burke- 
ville to  Adams  Grove,  Virginia,  transported  over  the  Richmond  division,  Keysville 
branch  and  Danville  divisions,  a  distance  of  one  hundred  and  twenty-nine  miles,  the 
Southern  Railway  rates  are: 


2384 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


1st  2d 
Class.  Class. 
In  North  Carolina — 

54  44 
In  Virginia — 

59  49 


Bacon.  Grain. 
In  North  Carolina — 

18  13 
In  Virginia — 

21  15 


3d 
Class. 

35 

40 

Flour. 
16 
18 


4  th 
Class. 

26 

29 

Hay. 
cl.  Icl. 

13  17 
15  24 


5th 
Class. 

21 

24 

Fertilizer, 
cl.  icl. 

11  13.2 
13  15.6 


6th 
Class. 

17 

18 


Lumber, 
cl. 

7  1-2 

10  1-2 


It  is  unnecessary  to  give  further  examples.  The  above  routes  are  outlined  in 
red  ink  on  the  accompanying  map. 

With  regard  to  the  statement  as  to  the  first,  second,  and  the  third  classes,  which 
is  a  general  sta,tement,  nothing  but  a  close  and  minute  comparison  of  the  official 
and  the  Southern  classifications  could  disclose  the  actual  facts,  which  comparison,  it 
is  fair  to  assume  that  Mr.  Hotchkiss  could  not  have  made  within  the  limited  time 
allowed  him  for  the  preparation  of  his  explanation.  We  do  not  hesitate  to  state,  how- 
ever, without  such  an  examination,  and  as  a  well-known  and  notorious  fact,  that  the 
majority  of  articles  largely  used  and  consumed  by  the  people  are  found  in  the  fourth, 
fifth,  and  sixth,  rather  than  in  the  first,  second,  and  third  classes. 

Mr.  Hotchkiss  sets  out  to  prove,  by  comparing  the  lowest  rates  the  Southern  Rail- 
way use  in  Virginia  with  the  Chesapeake  and  Ohio  Railway  rates,  that  even  the  South- 
ern Railway  rates  are  lower  than  those  of  the  Chesapeake  and  Ohio  Railway  on  cer- 
tain commodities,  resulting  from  differences  in  classification,  but  inasmuch  as  the  low- 
est rates  used  by  the  Southern  Railway  over  a  very  limited  portion  of  their  line  in 
Virginia  are  no  fairer  for  purposes  of  comparison  than  the  low  rates  of  the  Chesapeake 
and  Ohio  Railv/ay  nothing  is  proved. 

Referring  to  exhibit  "B,"  and  bearing  in  mind  that  the  only  practical  comparisons 
for  local  rates  are  between  less  than  car-loads,  we  find  upon  an  examination  of  said 
exhibit,  that  on  bacon,  grain,  flour,  hay,  lumber,  cotton  fabrics  (constituting  by  far 
the  largest  percentage  of  dry  goods),  sugar  in  double  sacks,  coffee  in  double  sacks 
(neither  sugar  nor  coffee  being  shipped  in  single  sacks  to  any  appreciable  extent), 
and  molasses,  the  rates  in  the  neighboring  State  of  North  Carolina  are  lower  in  almost 
every  instance  than  on  the  C.  &  O.  Railway  in  Virginia.  We  do  find  that  the  rates  on 
dry  goods  (except  as  referred  to  above)  and  on  boots  and  shoes  are  lower  on  the  C. 
&  O.  Railway  in  Virginia  than  the  rates  in  North  Carolina.  The  remaining  commodity, 
fertilizer,  is  lower  in  Virginia  for  shorter  distances  and  in  the  other  States  for  longer 
distances  (over  fifty  miles). 

Mr.  Hotchkiss  reverts  again  to  the  question  of  using  main  line  rates  for  compari- 
sons, but  as  we  have  already  satisfactorily  explained  this,  we  deem  further  comment 
unnecessary. 

Steam  coal,  to  which  your  statement  made  on  February  8,  1902,  referred,  was 
sold  in  1899  by  the  long  ton,  of  2,240  pounds,  and,  therefore,  to  show  the  advance  in 
cost  and  transportation,  the  ton  2,240  pounds  used  as  the  basis  for  comparison, 
although  it  is  now  sold  and  transported  by  the  short  ton  of  2,000  pounds  (the  cost  de- 
livered at  Richmond  and  the  transportation  charge  for  2,000  pounds  being  converted 
into  its  equivalent  for  2,240  pounds). 

By  the  attached  memorandum  of  rates  (Exhibit  "A")  for  hauling  coal  over  the 
C.  &  O.  Railway,  giving  the  date  and  number  of  tariffs  from  which  they  were  taken, 
it  will  be  seen: 

That  from  the  New  River  District: 


The  rate  in  1899  was  per  ton  of  2,240  pounds  to  Richmond   $1.50 

The  rate  in  1901  was  per  ton  of  2,000  pounds  in  Richmond   $1.50 

Equivalent  on  2,240  to    1.68 

Showing  in  the  rate  an  advance  on  2,240  pounds  of   18 

That  from  the  Kanawha  District: 

The  rate  in  1899  was  per  ton  of  2,240  pounds  to  Richmond   $1.65 

The  rate  in  1901  was  per  ton  of  2,000  pounds  to  Richmond   $1.60 

Equivalent  on  2,240  pounds  to    1.79 

Showing  in  the  rate  an  advance  on  2,240  pounds  of   14 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIO^T  OF  VIRGIXIA. 


2-385 


This  statenent  did  not  go  back  of  1889  into  the  period  of  the  panic  or  the  suc- 
ceeding years  of  depression,  during  which  the  disturbing  circumstances  and  condi- 
tions we^e  such  that  the  coal  dealers,  to  quote  a  figure  of  speech  used  by  one  of  them, 
had  almost  to  give  away  coal;  but  during  which,  it  seems,  from  Mr.  Hotchkiss  let- 
ter that  the  carriers  made  no  corresponding  reduction  in  their  charges  to  suit  the 
rate  to  "what  the  traffic  could  bear."  But  the  rates  were  as  given  in  your  statement 
of  the  8th  inst.  for  1899  and  1902;  and  the  cost  to  dealers  was  as  stated  m  each  in- 
stance; so  that  the  letter  from  Mr.  Hotchkiss,  which  does  not  specifically  quote  the 
figures'  for  1899.  does  not  disprove  your  statement.  _  _  _ 

He  also  fails  to  refer  to  that  part  of  the  statement  in  reference  to  the  division  of 
territorv  between  the  C.  &  0.  and  the  N.  &  W.  railways  in  the  coal  business,  the 
gravamen  of  that  charge  being,  that  after  destroying  competition  between  the  lines 
by  the  '-'Communitv  of  Interests"  plan,  by  this  division  of  territory,  the  remaining 
vestige  of  competition,  upon  which  great  stress  has  been  laid  by  the  carriers,  namely, 
the  competition  of  markets  as  a  protective  commercial  force,  is  in  turn  entirely  elimi- 
nated. 

Now,  as  to  the  reductions  in  the  Chesapeake  and  Ohio  Railway  rates.  It  does 
not  seem'  to  us,  from  documents  in  our  possession,  that  that  company  has  been  gradu- 
ally reducing  its  rates.  We  find  that  on  April  5,  1887,  the  date  on  which  the  Inter- 
state Commerce  law  went  into  effect,  the  C.  &  O.  Railway  operated  by  the  Newport 
News  and  Mississippi  Vallev  Company  issued  a  local  freight  tariff.  No.  11  (see  Ex- 
hibit "B").  This  tariff  was  amended  during  May.  1887,  as  per  letter  marked  Exhibit 
"C,"  from  the  Interstate  Commerce  Commission,  dated  February  10,  1902. 

When  these  rates  were  advanced  (as  they  were  instead  of  being  reduced),  we 
do  not  know;  but  from  an  inspection  of  their  local  tariff  No.  14  (Exhibit  "D"),  which 
took  effect  January  15,  1900,  the  rates  in  which  are  higher  than  those  in  effect  in 
1887,  there  appears  on  page  2  the  following  words:  Reprint  of  Local  Tariff,  No.  11, 
June  10,  1889."  From  this  it  would  appear  that,  at  some  time  between  May.  1887, 
and  June  10,  1889,  the  Chesapeake  and  Ohio  advanced  the  rates  in  their  local  tariff. 
As  the  tariff  of  January  15,  1890,  is  a  reprint  of  the  1889  tariff,  and  remained  in  ef- 
fect until  July  15,  1901,  when  rates  were  reduced,  it  appears  that,  instead  of  a  grad- 
ual reduction,  the  rates  of  1887  were  advanced  and  remained  so  until  July  15,  1901. 
In  fact,  the  rates  in  effect  at  the  present  time,  for  distances  over  one  hundred  and 
forty-five  miles,  are  higher  now  than  they  were  on  April  the  5th,  1887.  If  our  analy- 
sis of  the  C.  &  0.  local  tariffs  is  not  correct,  we  shall  be  very  glad  to  be  so  informed. 

Yours  truly,  W.  H.  Lumsdex, 

Commissioner  Isorfonz  Freight  and  Transpo7'tation  Bureau. 

E.  S.  Goodman, 

Manager  Traffic  Bureau  Richmond  Chamljer  of  Commerce. 

Now,  Mr,  Chairman,  1  am  not  going  into  any  extended  remarks  as  the  gentlemen 
who  furnished  this  paper  are  much  more  expert  in  freight  classification  and  rates  than 
I  am,  and  will  let  these  gentlemen  settle  this  matter  among  themseh^es.  But  the  state- 
ment furnished  by  Mr.  Hotchkiss  and  known  as  Exhibit  B,  bears  out  my  contention 
that  the  rates  of  freight  in  the  States  south  of  here  on  bacon,  grain  and  fiour,  apply, 
irrespective  of  quantity  whether  in  carloads  or  less  than  carloads,  and,  hence,  that  my 
comparison  of  these  rates  in  the  States  south  of  Virginia  with  less  than  carload  rates  of 
the  Chesapeake  and  Ohio  railvs^ay  were  perfectly  fair  and  justifiable.  The  exception  to 
this  statement  on  my  part  is  in  the  matter  of  hay,  for  this  article  is  shipped  in  carloads 
and  in  less  than  carloads  at  different  rates  in  the  States  south  of  here,  and  Mr.  Hotch- 
kiss admits  in  his  letter  that  the  rates  on  flour,  hay,  lumber  and  fertilizers  are  lower  in 
Georgia  than  in  any  of  the  other  States  named. 

But  they  complain  that  I  have  not  used  the  main  line  rates  of  the  Southern  railway 
in  Virginia  in  this  comparison  and  have  made  the  comparison  with  main  line  rates  in 
the  States  south  of  here.  I  distinctly  stated  to  this  committee  that  I  found  upon 
examination  that  the  Southern  railway  had  two  sets  of  local  rates,  one  applying  between 
Alexandria  and  Danville  and  the  other  applying  between  West  Point  and  t)anville  and 
between  Norfolk  and  Danville.  In  fact,  they  have  such  a  complexity  of  rates  that  it  is 
absolutely  confusing  as  to  what  they  are  and  as  to  how  to  apply  them,  and  where  a 
road  has  two  tariffs  and  the  higher  tariff  covers  about  400  miles  of  its  line  in  the  State, 
I  was  perfectly  justified  in  comparing  it  with  the  tariffs  on  its  lines  in  States  south  of 
here. 


2386 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


But  the  gentlemen  say  that  the  road  from  West  Point  to  Danville  and  the  road 
from  Norfolk  to  Danville  are  not  main  lines  but  branch  lines,  and  they  contend  that  the 
rulings  of  the  railroad  commissions  in  North  Carolina  and  in  Georgia  allow  exceptions 
to  standard  tariffs  on  branch  lines  of  from  10  to  25  per  cent.,  and  in  isolated  cases  even 
up  to  50  per  cent. 

As  has  been  stated  in  this  communication  from  these  gentlemen,  and  as  is  borne 
out  from  the  report  of  the  North  Carolina  Corporation  Commission,  I  do  not  think  that 
railroads  of  this  length  and  roads  similiarly  situated  to  these  would  be  classed  by  the 
Corporation  Commission  of  North  Carolina  as  branch  lines. 

What  are  the  conditions  with  regard  to  the  road  from  West  Point  to  Danville? 
West  Point  is  the  terminus  of  their  line.  There  it  connects  with  steamer  for  Balti- 
more. It  receives  and  ships  freight  by  those  steamers  for  Baltimore.  It  receives 
freight  at  West  Point  from  Baltimore  and  carries  it  as  far  south  as  Greensboro,  North 
Carolina. 

The  line  from  Norfolk  to  Danville  ends  at  their  grand  terminal  at  Pinner's  Point, 
their  seaboard  terminal  in  Virginia,  and  the  most  important  one  of  the  Southern  Rail- 
way, if  not  the  only  one.  I  have  no  doubt  it  carries  freight,  although  I  am  not  advised 
of  this,  from  Eastern  points.  New  York,  Norfolk,  Providence,  Philadelphia,  via  Norfolk, 
to  Danville  and  beyond  Danville  to  Lynchburg,  and  still  they  would  contend  that  this  is 
a  branch  line. 

By  reference  to  the  report  of  the  North  Carolina  Corporation  Commission  I  find 
that  exceptions  are  allowed  to  the  standard  tariff  on  the  following  branch  lines  of  that 
company  in  North  Carolina: 

From  Winston  to  Wilkesboro,  75  miles,  an  exception  over  the  standard  tariff  of 
25  per  cent,  is  allowed.  This  is  undoubtedly  a  branch  line  for  the  railroad  terminates 
at  Wilkesboro,  and  there  is  no  railroad  beyond  Wilkesboro. 

The  North  Carolina  Midland  Railroad,  a  distance  of  53  miles,  is  allowed  an  exception 
of  25  per  cent. 

The  Oxford  and  Clarksville  Railroad,  a  distance  of  49  miles,  is  allowed  an  exception 
of  20  per  cent. 

The  Oxford  and  Henderson  Railroad,  a  distance  of  13  miles,  is  allowed  an  exception 
of  20  per  cent. 

The  Yadkin  Railroad,  a  distance  of  41  miles,  is  allowed  an  exception  of  25  per  cent. 

And  on  that  part  of  the  road  from  Salisbury  to  Paint  Rock,  between  Old  Fort  and 
Asheville,  where  there  are  those  heavy  grades  going  up  Round  Knob,  a  distance  of  about 
twenty  or  twenty-five  miles,  they  are  allowed  an  exception  of  10  per  cent,  above  the 
commission's  standard  tariff. 

The  Western  North  Carolina  Railroad  from  Asheville  to  Murphy,  a  distance  of  122 
miles,  is  allowed  an  exception  of  25  per  cent. 

The  Atlantic,  Tennessee  and  Ohio  Railroad,  a  distance  of  45  miles,  is  allowed  an 
exception  of  10  per  cent. 

The  Asheville  and  Spartansburg  Railroad,  a  distance  of  42  miles  in  North  Carolina, 
is  allowed  an  exception  of  25  per  cent.  I  know  of  this  road  because  I  have  been  over  it 
myself.  Where  they  go  over  Saluda  mountains,  there  are  three  miles  of  track  with  a 
grade  of  700  feet,  making  over  200  feet  to  the  mile. 

The  High  Point  and  Randleman  Railroad,  a  distance  of  27  miles,  they  are  allowed  an 
exception  of  10  per  cent. 

Now  here  is  a  road  from  West  Point  to  Danville,  a  distance  of  179  miles,  and  from 
Norfolk  to  Danville,  a  distance  of  205  miles,  having  deep  water  terminal  at  West  Point 
and  at  Norfolk  which  they  tell  us  are  branch  lines. 

But,  Mr.  Chairman,  suppose  we  take  the  gentlemen  on  their  own  ground.  Suppose 
that  we  say  these  are  branch  lines  for  the  sake  of  argument,  and  that  they  are  entitled 
to  higher  rates  than  the  main  line,  and  we  have  seen  that  this  has  been  fixed  by  the  rail- 
road commissioners  of  North  Carolina  and  Georgia,  by  the  statement  of  these  gentlemen, 
at  from  10  to  25  per  cent.,  and  in  some  isolated  cases  50  per  cent. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2387 

! 

Then  how  stands  the  case  in  the  tariffs  between  the  branch  lines  and  the  main  line? 
From  their  statement,  there  is  only  one  main  line  of  the  Southern  Railway  in  Virginia, 
and  that  is  from  Alexandria  to  Danville,  a  distance  of  231  miles,  out  of  a  total  mileage 
in  Virginia  of  647. 

Now  we  will  take  the  ten-mile  distance  in  the  classified  tariff. 

For  first  class,  on  the  main  line,  it  is  16  cents.  On  the  branch  line  21  cents,  a  dif- 
ference of  31  per  cent. 

Second  class  on  the  main  line  13  cents.  Branch  line  17  cents.  A  difference  of  31 
per  cent. 

The  third  class  on  the  main  line  is  7  cents.  On  the  branch  line  15  cents.  A  differ- 
ence of  36  per  cent. 

Fourth  class  on  the  main  line,  9  cents.  The  branch  line  12  cents.  The  difference 
33  1-3  per  cent. 

Fifth  class  on  the  main  line,  7  cents.  On  the  branch  line  10  cents.  A  difference  of 
43  per  cent. 

Sixth  class  on  the  main  line  6  cents.  On  the  branch  line  8  cents,  a  difference  of 
33  1-3  per  cent. 

Now  I  will  take  the  50  mile  distance  and  we  will  find  the  precentage  much  greater. 
For  first  class  on  the  main  line  30  cents.    On  the  branch  line  42  cents.    A  difference 
of  40  per  cent. 

On  second  class  on  the  main  line  24  cents.  On  the  branch  line  38  cents.  A  differ- 
ence of  58  per  cent. 

For  third  class  on  the  main  line  19  cents.  On  the  branch  line  33  cents.  A  difference 
of  73  per  cent. 

On  fourth  class  on  the  main  line  16  cents.  On  the  branch  line  24  cents.  A  differ- 
ence of  50  per  cent. 

On  fifth  class,  on  the  main  line,  14  cents.  On  the  branch  line  21  cents.  A  difference 
of  50  per  cent. 

On  sixth  class,  on  the  main  line,  10  cents.  On  the  branch  line  16  cents.  A  differ- 
ence of  60  per  cent. 

I  do  not  like  to  trouble  you  with  reading  these  figures.  I  have  got  them  all  figured 
cut  here  with  the  percentages  for  10,  50,  100,  150  and  200  miles,  and  if  it  could  be  done, 
I  would  be  very  glad  to  have  the  table  printed  in  the  record  for  the  benefit  of  all. 

The  table  referred  to,  is  as  follows: 

» 

Comparison  of  rates  on  different  portions  of  the  Southern  railway: 


Miles. 

Bacon. 

Grain. 

Flour. 

Hay  (l.c.l.). 

Lumber 

.....  6 

6 

6 

7 

3 

10 

  9 

7 

8 

10 

41-2 

 50 

16  2-3 

33  1-3 

45 

50 

 10 

8 

10 

11 

5 

50 

Norfolk  to  Danville  

 16 

12 

14 

21 

Cl-3 

 60 

50 

40 

90 

30 

 15 

10 

12 

16 

7  1-2 

100 

....21 

15 

18 

23 

10 

50 

50 

44 

33  1-3 

Alexandria  to  Danville  

17 

12 

14 

17 

9 

150 

West  Point  to  Danville  

Norfolk  to  Danville  

.  •  .  -  21 

16 

18 

24 

10  3-4 

Percentage  of  increase. . . . 

....  24 

33  1-3 

29 

41 

19 

Alexandria  to  Danville  

....19 

14 

16 

23 

10 

200 

West  Point  to  Danville  

Norfolk  to  Danville  

....  23 

18 

19 

26 

113-4 

Percentage  of  increase 

.  . .  .21 

29 

19 

13 

171-2 

2388  DEBATES  OF  THE  COI^STITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


Comparison  of  rates  on  different  portions  of  the  Southern 

railway : 

Firsn 

J^econd 

Third 

Fourtti 

Fifth 

Sixth 

Miles. 

Class. 

Class. 

Class. 

Class 

Alexandria  to  Danville  

13 

11 

9 

7 

6 

10 

West  Point  to  Danville  

Norfolk  to  Danville  

 21 

17 

lo 

12 

10 

8 

Percentage  of  increase. . . 

 31 

31 

36 

33  1-3 

43 

33  1-8 

Alexandria  to  Danville  

 30 

24 

19 

16 

14 

10 

50 

West  Point  to  Danville  

.  42 

38 

33 

24 

21 

16 

Percentage  of  increase 

40 

58 

73 

50 

50 

60 

Alexandria  to  Danville  

 40 

34 

27 

18 

16 

11 

100 

West  Point  to  Danville  

 .56 

47 

39 

28 

23 

17 

Percentage  of  increase 

 40 

38 

44 

55 

44 

54 

Al 

o  / 

19 

17 

14 

150 

Norfolk  to  Danville  

 60 

50 

40 

29 

24 

18 

 36 

35 

34 

58 

40 

28 

 53 

45 

35 

25 

23 

17 

200 

Norfolk  to  Danville  

 64 

54 

42 

32 

26 

19 

 20 

20 

20 

25 

13 

11 

When  we  come  to  the  commodity  rates  we  find  the  same  conditions  existing,  that 
the  difference  between  the  main  line  (as  they  would  term  it)  rates,  and  the  branch  line 
rates,  run  up  as  high,  as  sixty  per  cent. 

Now,  I  contend  that  if  these  are  actually  branch  lines,  and  if  they  are  entitled  to 
the  exception  from  the  standard  tariff,  then  they  have  made  the  exception  too  great,  and 
that  these  two  lines  of  railway,  one  179  miles  and  the  other  205  miles,  having  their 
terminals  at  tidewater,  on  the  one  hand,  and  one  of  the  cities  of  the  State  on  the  other 
hand,  are  not  isolated  cases,  and  entitled  to  the  greatest  exception. 

There  is  another  matter  I  wish  to  refer  to.  Mr.  Hotchkiss  in  his  letter  seemed  to 
imply  that  I  had  laid  great  stress  upon  the  fact  that  the  changes  of  the  tariff  rates  of 
the  Chesapeake  and  Ohio  were  made  on  July  15,  1901,  and  that  they  were  influenced 
by  the  fact  that  this  Convention  was  in  session  in  this  city  at  that  time.  I  desire  to 
say  that  I  do  not  think  that  from  my  remarks  such  an  inference  can  be  drawn.  The 
argument  that  had  been  made  by  the  gentleman  from  Fauquier  was  that  there  had 
been  a  gradual  reduction  of  rates  from  1891  to  1901,  and  I  said  that  the  tariff  of  1891 
had  remained  in  existence,  with  but  slight  modifications  until  July  15,  1901,  and  when 
I  was  interrupted  by  the  gentleman  from  Augusta,  w^ho  asked  if  this  tariff  did  not  go 
into  effect  since  this  Convention  had  been  in  session,  I  simply  gave  the  date  of  the 
tariff  v/ithout  any  comment  whatsoever,  saying  in  reply  to  his  question,  "  July  15th, 
1901,"  and  I  did  this  advisedly  because,  I  had  in  my  own  mind,  that  the  revision  of  a 
tariff  covering  the  local  rates  of  a  long  line  of  railway  would  take  months  to  be 
perfected. 

It  is  true,  in  discussing  the  change  of  tariffs  on  fertilizers,  I  did  say  that  there  w^as 
som-e  significance  in  the  fact  that  they  had  been  changed  since  the  Convention  had  been 
in  session,  and  I  thought  I  was  warranted  in  this  from  the  fact  that  for  years,  for 
short  distances  they  had  been  charging  higher  rates  than  the  maximum  allowed  by  the 
law,  and  their  tariffs  were  changed  in  the  last  six  months,  so  that  they  conformed 
exactly  to  the  maximum  allowed  by  law;  but  in  regard  to  the  general  tariff  I  had  no 
Idea  or  intention,  and  expressly  disclaim  any  intention  of  making  any  insinuation  that 
they  were  Influenced  by  the  fact  that  this  Convention  was  in  session. 

Comment  has  been  made  upon  the  tariff  which  I  alluded  to  on  cattle  from  Chicago 
and  Southwest  Virginia,  and  the  gentleman,  Mr.  Hotchkiss,  has  sought  to  make  a  dis- 
tinction without  a  difference. 


DEBATES  OP  THE  COXSTITUTIOXAL  CONVENTIONS  OE  VIRGINIA. 


2'389 


I  Stated  that  the  freight  on  cattle  from  Chicago  to  Newport  News  v/as  $50  per  car. 
He  states  that  the  rate  is  25  cents  per  100,  and  the  minimum  is  limited  to  20,000  pounds 
and  20,000  at  25  cents  per  100,  make  $50. 

I  stated  that  the  rate  from  Chicago  to  Norfolk  via  the  Norfolk  and  Western  rail- 
road was  $54  per  car.    He  states  that  the  rate  is  the  same  as  it  is  to  Newport  News. 

I  have  information  this  morning  from  a  gentleman  connected  with  the  Norfolk 
and  Western  railway  in  an  official  capacity,  to  the  effect  that  the  rate  is  $54  per  car, 
and  it  is  limited  to  20,000,  and  if  there  is  any  excess,  the  cattle  are  weighed  at  Norfolk, 
and  if  there  is  any  excess  over  20,000  pounds,  the  shipper  is  charged  with  such  excess 
at  that  rate. 

Now,  in  the  statement  that  I  made  that  the  rate  from  Southwest  Virginia  to  Nor- 
folk  was  $54  per  car,  I  made  that  statement  from  the"  fact  that  I  understood  it  was  the 
same  to  those  points  that  it  was  from  Chicago.  I  am  informed  now  that  it  is  $54  a 
car  to  Norfolk,  but  that  there  is  no  limit  as  to  weight,  and  if  the  shipper  chooses  to 
put  in  four  or  five  thousand  pounds  more  than  the  20,000  pounds  to  a  carload,  that  it 
would  reduce  the  rate  per  hundred  pounds  to  that  extent. 

As  to  the  other  question  as  to  whether  there  have  been  any  cattle  shipped  from 
Southwest  Virginia  by  way  of  Nev/port  News  for  export,  I  wash  to  say  that  the  in- 
formation upon  which  I  made  this  entire  statement  about  the  cattle  on  last  Saturday 
was  derived  from  a  member  of  this  Convention,  who  is  thoroughly  familiar  with  the 
facts  and  thoroughly  competent  to  take  care  of  himself,  and  does  not  need  aid  from  me, 
and  who,  I  presume,  will  make  some  statement  with  regard  to  it. 

I  am  sorry,  Mr.  Chairman,  that  I  have  detained  this  committee  so  long  in  making 
this  statement,  but  it  was  due  to  myself  as  well  as  to  the  gentleman  who  prepared  the 
tables  I  used  last  Saturday  to  do  so.    I  thank  you  for  your  attention. 

Mr.  Stuart:  Mr.  Chairman,  inasmuch  as  the  gentleman  from  Halifax  has  alluded 
to  the  fact  that  he  obtained  certain  information  in  regard  to  several  matters  which  he 
has  discussed  from  a  member  of  this  Convention,  I  feel  it  proper  to  say  that  I  am  the 
gentleman  referred  to,  and  feel  it  my  duty  to  give  the  basis  of  the  information  which  I 
have  given  him.  And,  in  order  to  do  so  more  clearly,  I  will  read  paragraph  by  para- 
graph a  letter  written  by  Mr.  Hotchkiss,  the  general  freight  agent  of  the  Chesapeake 
and  Ohio  railway,  in  undertaking  to  contradict  the  statement  which  had  been  given  by 
me  to  the  gentleman  from  Halifax. 

I  regret,  sir,  with  all  due  deference  to  Mr.  Hotchkiss,  whom  I  know  by  reputation 
to  be  an  able,  and  presumably,  being  a  railroad  man,  an  accurate  man  to  find  that  he 
manifests  a  strange  lack  of  information  with  regard  to  a  subject  which  it  would  seem 
might  be  of  sufficient  significance  to  engage  his  attention. 

I  take  it  the  letter  which  he  has  addressed  here  is  in  perfect  good  faith — in  fact, 
I  know  it  is — and  I  must  assume  that  the  statements  therein  contained  are  made  in 
ignorance  of  the  facts,  and  facts  directly  connected  with  the  management  of  his  own 
road. 

In  the  first  place,  he  says: 

Another  matter  I  notice  in  Mr.  Stebbins'  argument,  commencing  at  the  bottom  of 
page  7,  in  the  notes  in  regard  to  the  comparison  of  rates  on  livestock,  wherein  the  rates 
he  uses  are  incorrect.  He  is  referring  to  the  rates  on  export  cattle  from  Chicago  lo  New- 
port News  and  Norfolk,  and  I  desire  to  state  that  the  rates  are  the  same  via  both  lines. 

Now,  either  Mr.  Hotchkiss  does  not  know  what  his  rates  are  or  the  Norfolk  and 
Western  Railroad  Company  do  not  know  what  their  rates  are — I  am  not  proposing  to 
say  which,  but  one  or  the  other  does  not  know  what  their  rates  are. 

This  is  a  question  of  very  considerable  importance  to  a  good  many  people  engaged 
in  the  live  stock  business,  which  is  an  important  and  highly  honorable  one,  as  it  occurs 
to  me,  in  this  State. 

He  says  the  rates  are  exactly  the  same  from  Chicago  to  Norfolk  and  from  Chicago 


2390  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


to  Newport  News — that  is  on  both  lines,  the  Chesapeake  and  Ohio  and  the  Norfolk  and 
Western. 

It  was  stated  before  this  committee,  the  Committee  on  Corporations,  by  a  represen- 
tative of  that  road,  that  the  rate  w^as  27  cents;  whereas  the  rate  stated  here  from 
Chicago  to  Newport  News  is  25  cents. 

Again,  it  was  stated  this  morning  by  a  representative  of  the  Norfolk  and  Western 
railway  that  the  rate  is  27  cents.  So  I  leave  these  gentlemen  to  settle  between  them- 
selves the  facts  as  to  rates  of  their  own  roads.  I  merely  call  attention  to  the  dis- 
crepancy. 

Going  further,  Mr.  Hotchkiss  says  "they  are  neither  $50  per  car  from  Chicago  to 
Newport  News  and  Norfolk,  nor  are  they  ?54  per  car." 

That  is  true.  They  are  $25  and  $27  based  on  a  minimum  of  20,000  pounds,  and  it 
was  given  in  that  form  because  my  whole  statement  was  based  upon  a  minimum  of 
20,000  pounds  to  the  car  except — and  I  wish  to  call  definite  attention  to  this  because 
it  was  omitted  from  the  statement  of  the  gentleman  from  Halifax  (Mr.  Stebbins),  and 
was  due  to  my  own  oversight — it  is  true  that  the  Norfolk  and  Western  railroad  conveys 
cattle  from  Southwest  Virginia  points  to  Lynchburg  on  their  regular  local  rate  of  $41 
per  car,  regardless  of  weight,  so  that  if  there  should  happen  to  be  any  excess  in  the 
car,  such  excess  would  be  transported  as  far  as  Lynchburg  free  of  charge.  Now,  I  pro- 
pose to  take  these  two  basis  of  rate,  and  calculate  them  exactly  consistently  with  the 
facts,  embracing  the  fact  that  there  is  an  arbitrary  local  rate  from  Southwest  Virginia 
points  to  Lynchburg  of  $41  per  car,  regardless  of  weight,  and  let  us  see  what  is  the 
conclusion. 

To  Lynchburg,  $41;  from  Lynchburg,  via  the  C.  &  0.,  13 J  cents  per  hundred  on 
actual  weight,  at  point  of  destination. 

Now,  they  contend  that  they  are  hauling  something  extra.  Granting,  for  the  sake 
of  argument,  that  they  do,  and  haul  2,000  pounds  more  than  the  20,000  pound  mini- 
mum; suppose  we  begin  with  a  carload  that  actually  weighs  22,000  pounds  at  its  desti- 
nation, and  proceed  with  that  basis  entirely  through  this  comparison. 

Such  a  carload  of  cattle  from  Southwest  Virginia  points  of  22,000  pounds,  delivered 
at  Lynchburg,  $41,  with  the  added  rate  from  Lynchburg  to  Newport  News  of  13J  cents 
per  hundred  on  actual  weights,  making  the  freight  from  Lynchburg  to  Newport  News 
$29.70,  would  make  a  total  freight  rate  based  upon  their  own  figures  of  $70.70  from 
Southwest  Virginia  points  to  Newport  News. 

Now,  let  us  pursue  their  own  figures  further.  They  say  the  rate  is  25  cents  from 
Chicago,  and  deny  that  it  is  $50  per  car,  asking  their  own  figures,  and  saying  that  each 
carload  again  consists  of  22,000  pounds,  the  rate  from  Chicago  to  Newport  News  is  $55, 
a  difference  of  $15.70  per  car  against  the  citizens  of  this  State  in  reaching  their  own 
seashore,  and  against  the  people  from  whom  these  corporations  have  derived  their 
existence,  and  from  whom  they  derive  their  constant  protection. 

But  again,  Mr.  Hotchkiss  proceeds  to  say: 

Mr.  Stebbins  goes  on  to  say  that  when  these  cattle  are  for  export,  when  originating 
in  Southwest  Virginia,  inasmuch  as  the  steamers  do  not  land  at  Norfolk,  the  cattle  have 
to  be  delivered  to  the  Chesapeake  and  Ohio  Railway  company  at  Lynchburg  and  thereby 
are  subject  to  the  local  rates  of  both  roads. 

The  gentleman  from  Halifax  did  say  that,  and  I  am  here  to  say  it  and  prove  it,  as 
to  the  Norfolk  and  Western. 

Now,  Mr.  Hotchkiss  adds — and  I  ask  the  attention  of  the  Convention  to  this — 

The  gentleman  has  not  stated  the  facts  in  reference  to  this  matter.  There  have 
been  no  shipments  moved  from  Southwest  Virginia  via  Lynchburg  and  the  Chesapeake 
and  Ohio  Railway  company  in  a  long  time. 

Let  us  see  what  Mr.  Nelson  Morris,  of  Chicago,  says  about  that.    It  was  he  who 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA.  2391 


bougM  a  large  proportion  of  the  Southwest  Virginia  cattle  last  year  and  shipped  them 
abroad  via  Newport  News.  Here  is  the  freight  agent  of  the  Chesapeake  and  Ohio 
Railway  company  who  denies  that  the  cattle  have  been  shipped  via  Lynchburg  and  C. 
&  O.  Now,  let  us  see  what  Nelson  Morris,  of  Chicago,  perhaps  the  third  largest  cattle 
dealer  in  the  world  has  to  say  about  it. 

I  will  state  that  I  wired  Mr.  Morris  yesterday  for  information  on  this  subject,  ask- 
ing him  at  what  point  the  Chesapeake  and  Ohio  railroad  received  Southwest  Virginia 
cattle  routed  to  Newport  News.    Here  is  the  answer: 

Answering  message,  cattle  were  shipped  via  Norfolk  and  Western  and  C.  &  C, 
transfer  being  made  at  Lynchburg;  you  have  rate  and  should  be  able  to  arrive  at  the 
amount  per  car. 

There  were,  I  will  say,  perhaps  5,000  export  cattle  shipped  out  of  Southwest  Vir- 
ginia by  Mr.  Morris  by  that  route  last  year,  continuing  up  to  November,  and  yet  the 
freight  agent  says  it  has  been  a  long  time  since  there  was  any  such  shipment,  only 
showing  you  how  deaf  these  gentlemen  are  to  statements  based  upon  existing  and 
undeniable  facts. 

Again  he  says  that  ships  do  sail  from  Norfolk  and  that  there  is  no  reason  why 
these  cattle  should  not  go  to  Norfolk  instead  of  New^port  News. 

I  am  very  much  indebted  to  him  for  that  information,  I  have  been  trying  to  get 
ships  at  Norfolk  to  carry  cattle  to  Europe  for  twelve  years,  without  success.  It  is  a 
well  known  fact  to  those  engaged  in  the  cattle  raising  business  in  this  country  that 
the  trans-Atlantic  business  is  conducted  by  ships  constructed  especially  for  that  pur- 
pose, or  at  least  with  a  view  to  that  business.  The  line  of  steamers  that  now  plys 
between  NeT^T)ort  News  and  Liverpool  and  London,  furnishes  an  example. 

Again,  the  slow-going,  unreliable  tramp  steamers  are  uninsurable — the  insurance 
companies  will  not  insure  cattle  on  them — and  the  cost  of  fitting  them  up  to  carry  such 
a  cargo  necessarily  cuts  such  a  figure  in  the  ocean  freight  rate  as  to  make  it  absolutely 
prohibitory  and  impracticable  to  fit  one  up  for  a  single  cargo. 

I  have  been  trying  for  years  to  find  a  ship  to  take  cattle  from  Norfolk,  without 
success,  and  yet  Mr.  Hotchkiss  tells  me  that  "  ships  do  sail  direct  from  Norfolk  and 
from  the  terminals  of  the  Norfolk  and  Western  Railroad  company  and  shipments 
either  from  Chicago  or  Southwest  Virginia  can  be  transported  to  Norfolk  and  unloaded 
on  board  ships  for  foreign  shipments."    This  is  certainly  something  new. 

Now,  I  think  I  have  succeeded  in  sustaining  my  point  as  made  by  my  friend  from 
Halifax.  I  did  not  wish  to  have  anything  to  say  on  this  subject.  I  do  not  wish  to 
appear  here  as  an  advocate  of  my  own  personal  interests.  However,  I  am  a  represen- 
tative of  interests  in  that  direction.  My  constituency  is  engaged  very  largely  in  this 
business,  and  I  may  say  almost  the  entire  southwestern  portion  of  the  State,  and  it  is 
an  interest  which  I  feel  it  my  duty  to  fully  protect  as  far  as  in  me  lies;  and  for  this 
reason  I  have  felt  called  upon  to  substantiate  the  statements  made  by  me  to  my  friend 
from  Halifax  (Mr.  Stebbins),  and  which  are  denied  by  Mr.  Hotchkiss,  the  freight  agent 
of  the  Chesapeake  and  Ohio  Railway  company. 

Here  is  another  telegram  from  Mr.  Morris,  of  Chicago: 

Replying  to  your  message,  rate  from  Chicago  to  Newport  News  is  twenty-five  cents; 
from  Kentucky  points  twenty-one  and  one  half  to  twenty-five. 

Kentucky,  on  the  basis  of  22.000  pounds,  reaches  Newport  News  at  $47  to  $55,  and 
Virginia  reaches  there  at  $70.70.  The  telegram  does  not  say  just  what  Kentucky 
points  he  refers  to.    It  merely  says  "twenty-one  and  one-half  to  twenty-five." 

Now,  I  am  not  here  to  lay  down  rules  of  conduct  for  railroads  in  the  management 
of  their  business.  I  have  never  challenged  the  right  of  a  railroad,  nor  have  I  chal- 
lenged the  wisdom  by  which  is  established  and  adhered  to  the  laws  of  competition  in 
trade.    I  can  see  that  the  disregard  or  the  entire  disregard  of  that  proposition  would 


2392 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


work  ruin  to  the  railroads  and  to  the  communities.  For  instance,  in  the  coal  fields, 
in  the  Flat  Top  coal  fields,  there  may  be  100  operators  engaged  in  the  same  field,  be- 
ginning on  the  extreme  east  with  A,  and  running  back  north  and  west  to  Z,  ail  in  the 
same  field  and  mining  the  same  coal  at  the  same  cost,  and  transporting  it  to  the  same 
market.  Now,  I  am  perfectly  willing  to  admit  that  the  railroad  has  a  right  to  haul  the 
coal  of  Z,  representing  100  or  150  down  the  line,  at  the  same  price  as  he  hauls  the  coal 
of  A.  I  say  that  is  a  correct  principle,  because  of  the  fact  that  A  has  no  right  to  desire 
any  advantage  by  reason  of  his  situation  when  situated  in  the  same  field,  and  in  the 
same  business,  working  for  the  same  markets.  I  think  that  the  status  of  these  opera- 
tors should  be  preserved,  and  I  am  glad  to  say,  so  far  as  I  know  in  this  State,  it  is 
preserved. 

Now,  why  should  it  be  preserved?  As  I  have  stated,  because  they  are  all  engaged 
in  the  same  business,  and  producing  an  article  in  the  same  cost  for  the  same  market. 

Now,  let  us  apply  that  principle  to  the  case  in  hand.  The  man  who  produces 
cattle  in  Southwestern  Virginia  is  engaged  in  the  business  in  which  his  competitor  who 
lives  in  Kentucky,  Indiana,  Illinois,  and  all  through  the  central  west  are  engaged. 
They  are  producing  the  same  article  at  presumably  the  same  cost — though  it  is  a 
violent  presumption  to  say  that  it  can  be  done  in  Virginia  as  cheaply  as  in  the  west, 
but  we  will  say,  for  the  sake  of  argument,  that  they  are  producing  the  same  article  at 
the  same  cost— and  for  the  sam.e  market.  Now,  the  railroads  who  lay  down  the  prin- 
ciple of  the  preservation  of  the  law  of  competition,  or  of  the  competitive  relations  of 
these  people,  could,  it  seems  to  me,  with  equal  propriety  say  to  the  man  who  lives 
within  this  State  that  they  will  at  least  preserve  him  against  discrimination  in  favor 
of  the  man  who  lives  six  or  eight  hundred  miles  west  of  him.  No  man,  so  far  as  I 
know,  in  my  section  is  asking  the  railroads  of  Virginia  to  transport  the  Virginia  raised 
commodity  to  our  own  seashore  for  less  than  they  transport  the  same  article  from 
Chicago. 

As  far  as  my  section  of  the  State  is  concerned,  we  stand  here  willing  to  incur  the 
same  cost  for  the  transportation  of  our  commodities  as  is  incurred  by  the  m^an  who  is 
shipping  from  Chicago.  We  are  willing  to  v/aive  our  geographical  advantages;  we  are 
willing  to  waive  the  fact  that  we  are  living  in  sight  of  the  finest  seaports  in  this 
country,  and  that  we  are  citizens  of  a  State  which  has  generously  looked  after  the 
interests  and  the  development  of  our  railroad  enterprises.  We  ask  no  advantage  by 
reason  of  our  geographical  situation;  we  simply  ask  that  we  be  not  discriminated 
against;  that  we  be  not  made  to  pay  a  penalty  for  our  citizenship  in  this  State.  If  that 
be  unreasonable,  gentlemen,  I  am  unable  to  conceive  of  any  idea  that  I  may  advance 
to  this  body  that  would  be  reasonable. 

I  did  not  intend  to  make  any  remarks  at  ail,  except  the  sim^ple  statement  necessary 
to  corroborate  my  friend  from  Halifax.  I  have  been  drawn  into  this  unexpectedly.  I 
wish  to  say  before  closing  that  there  are  other  gentlemen  in  the  Convention  from  the 
Southwest  familiar  with  this  subject,  notably  the  gentleman  from  Tazewell  (Mr.  Gil- 
lespie), engaged  in  the  same  business;  again,  if  I  am  mistaken  as  to  the  soundness  of 
the  principles  here  enunciated,  I  shall  never  again  feel  inclined  to  present  another 
proposition  to  this  body. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  I  make  no  apology  for  asking  the  atten- 
tion of  the  gentlemen  of  the  comittee  to  the  remarks  which  I  deem  it  my  duty  to  sub- 
mit up  on  a  question  of  such  magnitude  as  challenges  the  attention  of  every  patriot,  of 
every  legislator,  of  every  statesman  in  our  land;  a  question  which,  in  the  field  of  dis- 
cussion traversed  by  the  gentlemen  who  have  treated  it  with  so  much  ability,  has  taken 
a  much  wider  reach  than  the  confines  of  this  Commonwealth,  and  it  is  a  question,  Mr. 
Chairman,  as  broad  as  the  limits  of  these  United  States.  Among  all  the  economic 
Issues  to  which  have  been  devoted  the  thought,  the  study,  the  conscientious  investiga- 
tion of  political  economists,  publicists,  legislators  and  jurists,  there  is  none  to-day  that 
is  more  important,  more  vital  to  the  interests  of  the  people  than  this  problem.    It  is 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2393 


not  a  new  question  in  the  State  of  Virginia  nor  is  its  consideration  a  recent  matter  of 
thought  and  of  study  to  myself. 

More  than  eighteen  years  ago  I  had  the  honor — and  it  was  an  honor  then — than'k 
God  it  is  an  honor  yet — to  represent  the  people  of  a  portion  of  this  Commonwealth  in 
the  House  of  Delegates.  The  representatives  of  Virginia  then  saw  as  plainly  as  do  her 
representatives  here  to-day,  the  importance  of  legislation  upon  this  subject.  The 
House  of  Delegates  which  sat  in  this  hall  in  1884  passed  a  very  mild,  persuasive  rail- 
road commission  bill.  It  did  not  meet  the  approval  of  the  representatives  of  the  people 
of  Virginia  in  the  other  chamber  of  the  General  Assembly. 

In  1888  again,  along  vfith  five  other  gentlemen,  distinguished  members  of  this 
Convention,  I  had  the  honor  to  be  a  member  of  the  House  of  Delegates,  and  to  represent 
the  same  district  which  I  represent  to-day  in  this  Convention,  and  the  subject  which 
received  perhaps  more  attention  and  consideration  than  any  other  from  the  members  of 
that  body  was  the  same  problem  of  the  just  and  proper  regulation  of  interstate  com- 
merce in  the  State  of  Virginia.  A  bill  was  passed  by  that  House  of  Delegates,  some- 
what fashioned  after,  but  an  improvement  upon  the  national  interstate  commerce  act, 
which  it  was  then  believed  by  its  advocates,  and  I  believe  now,  if  it  had  been  adopted, 
would  have  given  the  people  of  Virginia  adequate  redress  and  relief  against  any  real 
evils  of  which  they  complain.  But  again  that  measure  did  not  receive  the  sanction  of 
the  members  of  the  Senate  of  this  State. 

In  the  following  General  Assembly  in  lS89-'90,  another  bill,  known  as  the  Kent  bill, 
somewhat  more  drastic  in  its  provisions,  was  passed  by  the  House  of  Delegates  at  the 
very  end  of  the  session.  That  bill  did  not  receive  the  sanction  of  the  Senate  of  Vir- 
ginia; and  yet,  I  want  to  say,  Mr.  Chairman,  that  again  and  again  and  again  the  con- 
stituencies represented  by  the  Senators  who  failed  to  vote  for  and  pass  those  bills 
returned  them  to  their  seats  in  the  other  house. 

I  said,  Mr.  Chairman,  that  the  question  which  had  been  discussed  here  Vv^as  not 
merely  State  wide,  but  was  as  broad  as  the  country,  as  large  as  these  United  States. 
The  evils  complained  of,  almost  every  evil  pointed  out  as  yet  in  this  discussion,  are 
evils,  the  remedy  of  which  can  only  come  from  the  government  of  the  United  States. 
How  do  I  explain,  Mr.  Chairman,  the  fact  that  Senate  after  Senate  has  failed  to  pass  a 
measure  of  this  sort?  Is  it  because  the  representatives  of  the  people  of  Virginia  in 
that  body  have  been  false  to  their  representative  duty?  No,  Mr.  Chairman,  it  is  be- 
cause'— and  there  is  no  member  on  this  floor,  who  knows  that  fact  better  than  the  able 
and  distinguished  legislator  who  now  presides  over  our  deliberations  (Mr.  Keezell)  — 
there  has  been  no  such  demand  upon  the  part  of  the  people  of  this  Commonwealth  for 
such  legislation  as  gentlemen  upon  this  floor  now  suppose  to  exist. 

Why,  sir,  what  has  been  the  history  of  the  legislation  of  this  Commonwealth  in 
reference  to  its  railroads?  Have  the  representatives  of  the  people  of  this  State  of 
either  house  been  faithless  to  their  duty  as  some  gentleman  upon  this  floor  would  seem 
to  imply?  What  acts,  some  of  them  regarded  as  unfriendly  to  the  interests  of  the 
railroad,  have  been  passed  by  the  General  Assembly  of  Virginia?  There  is  a  long  list 
of  legislation,  Mr.  Chairman,  upon  that  subject,  which  shows  that  when  there  has  been 
any  real  demand  upon  the  part  of  the  people  of  Virginia  for  legislation  for  their  pro- 
tection it  has  been  enacted  by  their  representatives. 

In  the  first  place,  years  and  years  ago,  before  some  of  the  gentlemen  who  are  now 
members  of  this  Convention  had  reached  manhood,  your  General  Assembly  passed  a  law 
giving  a  right  of  action  to  the  personal  representative  of  any  man  who  lost  his  life  by 
the  negligence  of  a  railroad  company,  a  common  carrier,  or  any  corporation  or  indi- 
vidual; and  as  a  result  of  that  just  and  proper  law,  the  railroad  companies  of  the  State 
have  been  required  to  pay  thousands  and  thousands  and  hundreds  of  thousands  of  dol- 
lars to  the  representatives  and  families  of  men  who  lost  their  lives  while  passengers, 
and  in  many  cases  while  employes  in  the  service  of  these  railroad  companies. 

Again,  sir,  your  General  Assembly  subjected  them  to  taxation  not  only  by  the  State, 
151— Const.  Deb. 


2394 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


as  it  existed  before,  but  to  municipal  and  county  and  magisterial  district  levies  upon 
their  property.  In  addition  to  that,  your  General  Assembly  has  passed  laws  giving  to 
the  laborer  and  employe  of  a  railroad  a  first  lien  upon  its  property  as  the  security  for 
the  payment  of  his  wages,  and  to  the  man  who  furnishes  supplies  to  any  railroad  or 
corporation  a  similar  lien  upon  the  gross  earnings  and  the  personal  property  of  these 
corporations. 

I  have  had  the  honor  to  be  a  member  of  the  General  Assembly  of  Virginia  during 
eight  years,  and  I  do  not  believe  that  I  was  ever  a  member  of  a  body  in  which,  if  there 
had  been  any  such  demand  as  exists  to-day  in  this  Commonwealth,  an  effective  rail- 
road, or  corporation  commission  bill,  would  not  have  been  passed  through  both  houses 
by  a  two-thirds  vote. 

There  is  a  demand  for  such  legislation  now,  not  only  in  Virginia,  but  throughout 
this  land.  There  was  a  time  when  competition  gave  to  shippers  some  protection  against 
unreasonable  exactions  by  common  carriers;  but  when  all  the  great  railroad  systems  of 
this  country,  and  not  only  all  the  great  railroad  systems,  but  more  and  more  rapidly, 
more  and  more  largely,  all  the  great  sources  of  supply  of  that  first  requisite  of  national 
wealth,  the  great  coal  mines  and  coal  bearing  lands  of  the  country,  are  coming  under 
the  control  of  the  same  combinations,  governed  and  owned  in  many  instances  to  a 
great  extent  by  the  same  individuals  who  control  your  railroads,  the  time  has  come  for 
some  remedy  against  a  situation  which  may  become  a  condition  of  serfdom;  because 
when  one  set  of  men,  however  kindly  disposed  they  may  be  as  individuals,  however 
fairminded  they  may  be  as  individuals,  come  to  control  all  the  avenues  of  commerce, 
all  the  means  of  transportation,  and  all  the  supplies  of  fuel  used  by  your  manufacturers 
and  for  domestic  purposes,  the  people  become  the  tenants  of  such  a  combination  and 
must  pay  them  such  rents  as  they  may  exact. 

So,  Mr.  Chairman,  it  is  right  and  proper  and  necessary  that  some  remedy  shall  be 
found  for  evils  which  concern  us  in  Virginia,  and  which  to-day  stare  in  the  face  the 
people  of  this  whole  land. 

Only  two  remedies,  and  one  of  them  almost  and  perhaps  equally  as  bad  as  the 
disease  can  be  suggested.  One  is  government  ownership  of  all  public  utilities,  includ- 
ing railroads,  telegraph  lines,  telephone  lines  and  ultimate  supply  of  fuel,  and  the  other 
is  government  control  and  government  regulation  of  public  service  companies. 

I  say  this,  Mr.  Chairman,  because  I  am  most  earnestly  in  favor  of  the  principle  of 
the  legislation  now  proposed  to  be  embodied  in  your  Constitution.  I  am  in  favor  of 
embodying  that  principle  in  the  Constitution  and  putting  it  there  in  a  form,  so  manda- 
tory that  no  Legislature  can  fail  to  give  the  people  the  legislation  to  which  they  are 
entitled,  and  which  will  give  them  the  just  and  proper  relief  they  ought  to  have. 

The  only  question,  in  my  judgment,  that  is  now  open  for  discussion  before  this 
Convention  is,  how  shall  this  principle  be  engrafted  in  your  Constitution?  Will  you  put 
it  there  in  the  form  of  a  statute  law  dealing  with  all  the  minutia  of  detail:  a  law  in 
some  of  its  provisions  elastic  and  left  to  amendment  or  to  control  by  the  General 
Assembly,  but  a  law  in  some  of  its  most  important  particulars  made  cast  iron  and  un- 
changeable by  the  will  of  the  people  as  expressed  by  their  General  Assembly? 

Mr.  Chairman,  in  my  judgment,  it  is  not  only  unwise  to  do  that,  but  it  is  perilous 
to  do  it — perilous  to  do  it  from  the  standpoint  of  the  most  earnest  advocate  of  such 
legislation. 

On  motion  of  Mr.  Braxton,  the  committee  rose,  and  the  President  pro  tempore  re- 
sumed the  chair. 

Mr.  Barbour:    Mr.  President,  I  move  that  instead  of  adjourning  to-day  at  2  o'clock, 
the  chair  be  vacated  until  4  o'clock  and  the  session  be  then  resumed. 
The  motion  was  agreed  to. 

On  motion  of  Mr.  Braxton,  the  Convention  took  a  recess  until  4  o'clock  P.  M. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIEGIXIA. 


23  9  5 


AFTER  RECESS. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  pro 
tempore  in  the  chair. 

CORPORATIONS. 

On  motion  of  ]\Ir.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
^'hole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations. 

Mr.  Wiliam  A.  Anderson:  Mr.  Chairman,  I  shall  not  occupy  any  more  of  the  time 
of  the  committee  than  is  necessary  to  very  concisely  and  briefly  present  my  views  upon 
what  I  consider  to  be  the  only  practical  question  decided  by  the  Convention  in  reference 
to  the  matter  now  under  consideration.  I  have  no  prepared  or  elaborate  argument  with 
which  to  entertain  the  members  of  the  committee.  I  have  no  time  to  prepare  one,  but 
I  have  earnestly  considered  this  subject  and  I  wish  to  present  to  the  committee  what 
seems  to  me  to  be  some  practical  and  controlling  considerations  which  should  govern 
our  action  in  reference  to  this  and  kindred  matters. 

I  have  regretted  very  much,  Mr.  Chairman,  the  acerbity,  if  I  may  so  term  it,  indeed 
the  bitterness,  which  has  characterized,  I  am  glad  to  say,  to  a  limited  extent,  this  dis- 
cussion. I  am  sure  I  feel  absolutely  confident,  because  of  my  respect  and  admiration 
for  the  gentlemen  who  have  heretofore  participated  in  this  debate,  that  there  is  not  one 
of  them  who  is  not  actuated  by  the  highest  motives  and  by  an  earnest  desire  to  pro- 
mote the  public  interests.  Of  one  thing  I  am  sure,  Mr.  Chairman,  that  I  have  no  clients 
here  except  the  people  of  Virginia,  who  have  commissioned  me  to  represent  them  upon 
this  floor;  and  I  believe  the  same  is  true  of  other  gentlemen  who  have  discussed  this 
question,  whether  they  may  be  so  fortunate  or  unfortunate,  some  of  them,  as  to  be  rail- 
road attorneys.  The  only  interest  I  can  consider.  The  only  interest  I  believe  I  have 
considered,  in  coming  to  the  conclusion  to  which  I  have  come  in  regard  to  this  matter 
is  the  interest  of  the  people  of  Virginia,  and  of  all  the  people  of  Virginia.  No  effort  has 
been  made  by  any  one  in  the  Convention  or  out  of  it,  to  influence  my  judgment  in  opposi- 
tion to  engrafting  this  measure  upon  the  Constitution.  All  the  communications  I  have 
received  in  regard  to  it  have  been  from  those  who  are  friendly  to  this  measure  and  in 
favor  of  embodying  it  in  the  Constitution. 

I  have  the  highest  respect,  the  most  sincere  esteem  for  the  gentlemen  who  are 
advocating  this  proposition.  For  the  distinguished  chairman  of  the  Committee  on 
Corporations,  whose  transcendentally  able  argument  in  its  support  removed  many  of 
the  objections  which  I  had  to  the  scheme  as  a  legislative  provision,  and  who  is  actuated, 
I  am  sure,  by  an  earnest  purpose  to  advance  the  interests  of  all  the  people  in  the  Com- 
monvrealth  and  to  do  injustice  to  none  in  his  advocacy  of  this  article  (which  I  under- 
stand is  largely  the  product  of  his  brain  and  the  result  of  his  indefatigable  investiga- 
tion and  labor),  I  have  not  only  the  highest  admiration,  but  I  cherish  the  most  sincere 
affection;  and  I  regret  most  profoundly  that  after  the  most  earnest  consideration  I  can- 
not go  with  him  and  with  the  able  and  patriotic  men  who  agree  with  him,  in  engrafting 
upon  the  Constitution  the  article  which  they  have  prepared. 

The  principle  of  the  article  is  right,  nor  has  the  able  chairman  of  the  Committee 
on  Corporations  exaggerated  the  importance  of  the  subject  to  which  it  relates,  nor  the 
necessity  for  legislation  in  regard  to  it. 

It  is  those  very  circumstances,  Mr.  Chairman,  which  in  my  judgment  make  it  more 
perilous  to  put  into  a  Constitution  an  article  which  enters  into  all  the  minutiae  of  detail 
into  all  the  particulars  of  legislative  provisions,  in  regard  to  one  of  the  most  complex 
subjects  which  can  engage  the  attention  of  a  legislative  body.  The  more  important  the 
subject,  the  greater  the  necessity  that  a  cast-iron  enactment  should  not  be  placed  upon 
our  statute  books. 

The  more  complex  the  subject — and  gentlemen  will  agree  with  me  that  there  is  no 


2396 


DEBATES  OE  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


more  complex  subject  connected  with  the  affairs  of  mankind,  under  the  conditions  of 
modern  civilization,  than  those  relations  to  the  great  interests  affected  by  this  article— 
the  more  dangerous  it  is  to  put  in  your  Constitution  in  such  immutable  form  the  law 
which  is  to  express  the  will  of  the  people  and  provide  for  the  protection  of  their 
interests  and  for  the  juSt  administration  and  regulation  of  the  affairs  of  these  common 
carriers.  Would  any  man  think  of  embodying  in  the  Constitution  an  article  embracing 
the  law  of  this  Commonwealth  in  reference  to  the  public  school  system  of  the  State? 

The  gentleman  from  Richmond  (Mr.  Meredith)  to  whose  able  argument  I  listened 
with  profound  interest  to-day,  formulated  a  proposition  which,  though  it  was  prepared 
to  fit  this  case,  absolutely  meets  the  approval  of  my  judgment.  His  proposition  is 
almost  axiomatic.  His  proposition  is,  stating  it  from  memory,  that  wherever  there  is 
a  great  interest  in  a  Commonwealth  controlled  by  a  portion  of  the  people  of  that  Com- 
monwealth, but  affecting  the  interests,  the  prosperity  and  the  business  of  all  the  people 
of  the  Commonwealth,  such  provisions  as  are  necessary  for  the  protection  of  the  interests 
of  the  people  of  the  Commonwealth  should  be  embodied  in  your  Constitution.  I  agree 
with  him  that  such  provisions  as  are  necessary  for  the  protection  of  the  people  of  the 
Commonwealth  should  be  embodied  in  the  Constitution;  but  how  should  they  be  put 
in  the  organic  law?  Should  it  be  done,  Mr.  Chairman,  by  any  act  of  legislation  framed 
for  the  purpose  of  forestalling  action  of  the  legislative  representatives  of  the  people 
of  the  State;  and  framed  for  the  purpose  of  anticipating  all  of  the  mutations  and 
vicissitudes  of  modern  civilized  society  in  reference  to  these  great  agents  of  civilization 
and  development? 

Mr.  Chairman,  it  is.  impossible  for  human  wisdom  to  frame  a  law  governing  such  a 
subject  that  w^ould  be  perfect.  It  is  impossible  for  human  wisdom  to  frame  a  law 
governing  such  a  subject  that  would  not  require  repeated  amendments  before  it  would 
operate  in  all  important  particulars  satisfactorily.  I  recall  but  one  statute  of  great  and 
general  importance  enacted  by  the  Legislature  of  this  Commonwealth  (the  Virginia 
"  Statutes  of  Desents  ")  that  has  not  required  frequent  amendment,  and  that  "was"  the 
product  of  the  brain  and  the  mind  of  Thomas  Jefferson.  That  was  an  achievement  that 
has  never  been  surpassed,  never  been  equalled  in  human  legislation.  That  statute, 
except  in  a  particular  in  which  subsequent  legislation  attempted  to  amend  it,  has  stood 
for  a  hundred  and  twenty-five  years  or  more  without  change  or  question,  and  the  brief 
amendment  which  subsequent  legislation  placed  upon  it  has  been  followed  by  litigation 
In  regard  to  its  effect  and  construction  involving  the  expenditure  of  thousands  of  dol- 
lars. But  that  statute,  important  as  it  was,  related  to  no  such  complex  subject  as  this. 
When  Thomas  Jefferson  came  to  frame  it  he  had  the  benefit  of  the  legislation,  the  pre- 
cedents, and  the  experience  of  the  English  speaking  people  for  three  hundred  years,  and 
he  only  expressed  in  concrete  form  what  was  practically  already  the  law  of  Virginia. 

There  w^as  very  little  empyricism  about  it.  But  here,  though  this  proposition  is  not 
a  very  new  one,  though  it  is  one  that  has  engaged  the  attention  of  the  brighest  intellects 
of  this  continent  now  for  quite  a  generation,  yet,  Mr.  Chairman,  the  principles  which 
should  govern  in  the  details  of  their  application  are  yet  in  a  state  of  development,  and — 
in  this  I  am  sure  my  friend,  the  distinguished  chairman  of  the  Committee  on  Corpora- 
tions, will  agree  with  me — the  very  law  governing  this  subject  is  in  a  formative  condi- 
tion.   Scarcely  anything  is  absolutely  in  all  particulars  settled  about  it. 

I  ask  the  attention  of  my  brethern  of  the  Convention  to  the  aspects  of  this  question 
I  am  now  about  to  consider. 

I  hope  none  of  you  are  committed  past  recall  upon  this  proposition.  I  think  there 
is  no  proposition  coming  before  this  Convention  affecting  the  rights,  the  interests  and 
the  welfare  of  the  people  of  Virginia  as  to  which  I  shall  be  committed  past  recall  until 
the  final  vote  is  cast.  We  do  not  owe  allegiance  to  any  proposition  nor  fealty  to  any 
committee  report.  The  only  allegiance  we  owe  and  the  only  fealty  is  to  the  people  of 
this  Commonwealth;  and  if  we  find  when  the  last  vote  is  being  taken  upon  some  pro- 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXVEXTIOX  OE  VIEGIXIA. 


2397 


position  that  it  may  be  or  protably  is  a  mistake  to  embody  such  an  article  in  the  Con- 
stitution, vrhaterer  our  previous  predilections  may  have  been,  the  duty  of  each  one  of 
us  will  be  to  vote  against  putting  that  provision  in  the  Constitution. 

I  said,  2vlr.  Chairman,  the  lavr  governing  this  matter  is  in  a  formative  state.  This 
bill  as  originally  drafted  vas  based,  and  intelligently  based,  upon  the  decisions  of  the 
Supreme  Court  of  the  United  States  in  the  case  of  Munn  vs.  the  State  of  Illinois,  and 
a  number  of  other  cases  decided  about  the  same  time,  known  as  the  Railroad  Commis- 
sion cases,  reported  in  94  V.  S.  Reports.  In  the  great  opinion  of  Chief  Justice  Waite, 
in  the  leading  case  upon  this  stibject,  he  applied,  with  great  ability  and  great  fidelity, 
but  with  great  strictness,  the  old  principles  of  the  common  law  to  the  question  of  the 
governmental  regulation  of  public  service  companies:  and  those  cases  seem  to  have 
established  the  principle  that  this  regulation  was  a  legislative  function  not  reviewable 
by  the  courts;  and  to  my  comprehension  the^'  seem  to  have  established  another  principle, 
that  it  was  undoubtedly  competent  for  a  Legislature  of  a  State,  or  a  Constitutional  Con- 
vention to  delegate  a  sub-ordinate  tribunal  the  necessary  powers  to  regulate  and  con- 
trol, if  you  choose  to  use  that  word,  all  public  service  companies  as  to  their  rates  of 
charge,  and  as  to  the  discharge  of  their  duties  to  the  public. 

But  there  has  been  a  long  and  far  departure  from  those  rulings  of  the  Supreme 
Court  of  our  country.  I  had  intended,  Mr.  Chairman,  if  time  sufficed,  to  review  the 
long  line  of  authorities  upon  this  subject  and  to  show  hovr  the  Supreme  Court  of  the 
United  States  was  gradually  departing  from  or  qualifying  its  rulings  as  to  those  original 
primal  principles  established  in  the  earlier  decisions,  but  I  content  myself  by  reading 
a  commentary  of  one  of  the  ablest  and  most  learned  writers  on  corporation  law  that 
America  has  produced,  upon  that  subject,  showing  the  unsettled  condition  of  the  law 
upon  the  questions  latent  in,  if  not  patent  upon  the  face  of,  the  bill  recommended  for 
our  adoption  by  this  very  able  Committee  on  Corporations. 

I  read  from  volume  4  of  Judge  Thompson's  Commentaries  on  the  law  of  Private 
Corporations,  section  5530.  in  reference  to  the  power  to  regulate  charges  of  employments 
affected  with  a  public  interest,  water  supply  companies,  grain  elevators,  gas  light  com- 
panies, railroad  companies,  telephone  companies,  telegraph  companies,  and  other  com- 
panies which  are  very  properly  denominated  public  service  companies;  and  he  lays 
down  the  general  principle  that: 

In  the  absence  of  special  constitutional  restraints,  such  as  do  not  exist  in  the  Con- 
stitution of  the  United  States,  nor  in  the  Constitution  of  many  of  the  States,  it  is  compe- 
tent for  the  Legislature  of  a  State,  in  the  exercise  of  its  police  power,  to  enact  laws 
limiting  the  rate  of  charges  made  by  individuals  or  corporations  carrying  on  business 
affected  with  a  public  interest. 

Section  5531  is  entitled,  "'Limitations  upon  this  power:  Rates  mmst  not  be  con- 
fiscatory."   The  section  reads: 

The  present  doctrine  of  the  Supreme  Court  of  the  United  States,  which  was  estab- 
lished and  has  always  been  maintained  by  a  divided  court,  and  which  at  the  present 
time  seems  tottering  in  the  balance,  is  that,  although  the  Legislature  of  a  State  can,  by 
a  direct  act  of  Legislation,  fix  the  charges  of  any  person  or  corporation  engaged  in  a  busi- 
ness affected  with  a  public  interest,  yet  it  cannot  create  a  commission  and  clothe  it  with 
power  so  to  do,  except  upon  notice  and  a  hearing — in  other  words  upon  a  judicial  in- 
vestigation such  as  is  necessary  to  fulfill  the  meaning  of  the  expression  in  the  fourteenth 
amendment  to  the  Federal  Constitution — "  due  process  of  law.-"'  But  it  is  the  tmderstand- 
ing  of  the  Federal  judicatories  that  this  power  of  the  Legislature  to  regulate  the  charges 
of  corporations  or  persons  engaged  in  employments  affected  with  a  public  interest,  is 
not  without  limit;  and  that  it  cannot  be  so  exercised  as  to  compel  them  to  carry  on  their 
employments  without  reward  or  even  at  a  loss,  but  that  such  exercise  of  power  would 
involve  a  deprivation  of  property  without  due  process  of  law.  and  would  also  involve  the 
taking  of  private  property  for  public  use  without  just  compensation. 


As  I  understand  the  language  of  this  great  text  writer  and  commentator  upon  this 


2398  DEBATES  OP  THE  CONSTITUTIOI^AL  COXVENTIOi^  OF  VIEGINIA. 

subject,  as  I  understand  the  decision  of  the  Supreme  Court  of  the  United  States  in  the 
case  of  Covington  and  Lexington  Turnpike  Company  vs.  Sanders,  164  U.  S.,  and  in  the 
case  of  Lake  Shore  and  Michigan  Railway  Company  vs.  Smith,  173  U.  S.,  the  fixing  of 
rates  is  no  longer  purely  a  legislative  function  by  a  commission,  but  must  be  done  after 
a  judicial  investigation,  after  giving  opportunity  to  the  common  carrier  to  be  heard,  ta 
introduce  his  evidence  and  to  fairly  present  his  case  before  a  judicial  tribunal  with 
legislative  powers. 

The  case  of  the  Covington  and  Lexington  Turnpike  Company  vs.  Sanders  is  one  that 
may  well  challenge  the  attention  of  gentlemen  upon  this  floor  who  propose  to  put  this 
article  into  the  Constitution.  In  that  case  the  Supreme  Court  of  the  United  States 
decided  that  it  was  not  competent  for  a  Legislature  to  pass  a  law  fixing  the  tolls  of  a 
turnpike  company  at  a  rate  which  would  not  furnish  enough  revenue  not  only  to  keep 
the  turnpike  in  repair,  to  pay  the  necessary  expenses  of  the  turnpike  company,  but  to 
pay  a  reasonable  dividend  upon  the  capital  invested. 

How  different  are  those  rulings  from  the  rulings  of  that  great  court  in  the  Rail- 
road Commission  cases?  How  dangerous  it  would  be  for  this  Convention  to  adopt  as 
a  constitution  enactment  a  statute  which  (without  discussing  its  merits,  because  its 
merits  do  not  enter  into  this  argument),  the  United  States  courts  may  decide,  in 
accordance  with  the  claims  of  able  and  learned  counsel  here,  vest  arbitrary  powers  in 
this  commission?  If  I  understand  this  article,  and  it  seems  to  be  clearly  expressed,  it 
furnishes  the  evidence  not  only  of  the  strong  purpose  but  of  the  clear  intellect  which 
conceived  it.  If  I  understand  this  article,  the  power  of  the  Legislature  in  reference  to 
it  is  absolutely  limited  by  the  restrictions  contained  in  sub-section  1,  page  16: 

After  the  first  day  of  January,  1905,  the  General  Assembly,  upon  the  recommenda- 
tion of  the  said  commission,  may  from  time  to  time,  by  law,  amend  sub-sections  d, 
e,  f,  g,  h  and  i  of  this  section,  or  any  of  them,  or  any  such  amendment  thereof. 

The  General  Assembly  may  do  that  upon  the  recommendation  of  the  commission; 
but  here  is  the  restriction: 

Provided  that  no  amendment  made  under  authority  of  this  sub-section  shall  be  in- 
consistent with  the  provisions  of  any  part  of  this  Constitution  other  than  the  sub-sections 
last  above  named.  i  , 

t 

The  General  Assembly  is  thereby  prohibited  from  changing  any  provision,  from 
enacting  any  law,  in  addition  to,  or  in  conflict  with,  any  of  the  other  provisions  of  that 
section.  Now,  the  other  provisions  of  that  section  contain  some  of  the  most  important 
directions  of  this  bill. 

It  is  by  the  terms  of  the  article  thus  expressly  provided  and  intended  that  the 
General  Assembly  shall  make  no  charge  or  modification  in  any  provision  of  this  law 
which  relates  to  rates;  and  it  may  be  that  right  there,  in  reference  to  the  practical 
operation  of  some  provision  of  this  law  controlling  the  proceedings  of  this  commission 
in  reference  to  the  fixing  of  rates,  the  Supreme  Court  of  the  United  States  may  find 
that  the  argument  of  the  learned  lawyers  who  have  criticized  the  provisions  of  this  law 
is  well  founded.  And  suppose,  Mr.  Chairman,  that  that  court  should  hold  that  in  any 
one  of  these  vital  particulars  your  law  is  unconstitutional,  where  would  the  people  be 
in  reference  to  the  redress  of  grievances  and  the  great  reform  which  this  bill  is  intended 
to  accomplish? 

Your  article  prohibits  the  Legislature  from  amending  it.  The  Supreme  Courts 
which,  after  all,  whatever  we  may  say  here,  is  the  "paramount"  authority  upon  thia 
question,  has  said  that  the  article  is  unconstitutional  in  its  operation,  as  it  said  in 
reference  to  the  Minnesota  law;  and  where  would  you  be?  You  will  have  to  go  before 
the  people  with  a  constitutional  amendment  and  change  your  Constitution,  and  then 
change  your  statistics,  so  as  to  conform  to  the  rulings  of  the  highest  court  in  the  land.. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


2399 


Mr.  Chairman,  it  is  impossible  that  I  could  indulge  in  any  unfriendly  criticism  of 
the  work  of  this  committee,  but  I  recognize  the  limitations  and  the  falibility  of  finite 
minds,  however  able  and  however  wise.  It  is  said  that  the  poet  Gray  spent  seven  years 
in  writing  the  beautiful,  immortal  "  Elegy  in  a  Country  Churchyard."  To  make  a  law 
intended  to  govern  and  regulate  a  vast  and  complicated  subject  like  this  perfect 
enough  to  go  into  a  Constitution,  would  require  a  legislative  genius  equal  to  that  of 
Thomas  Jefferson,  and  would  require,  in  the  careful  selection  and  adaptation  of  language 
to  express  the  precise  ideas  to  be  formulated,  as  patient,  persevering,  indefatigable 
industry  as  the  great  poet  devoted  to  the  preparation  of  those  immortal  lines. 

Mr.  Chairman,  the  considerations  and  principles  which,  in  my  judgment,  should 
govern  this  Convention  in  framing  the  fundamental  law  of  the  State  are  not  of  recent 
birth.  In  answering  a  generous  call  from  my  fellow-citizens  to  become  a  representative 
in  this  body,  in  the  month  of  April  last,  some  wrecks  before  this  Convention  assembled, 
I  laid  down  the  propositions,  which,  by  your  indulgence,  I  will  read,  and  which  expressed 
my  views  then,  and  express  my  views  now,  as  to  the  wise  and  conservative  rule  which 
should  govern  this  Convention  in  dealing  with  this  and  other  like  subjects.  I  read  now 
from  my  letter  to  the  people  of  Rockbridge  and  Buena  Vista: 

So  far  as  I  have  been  able  to  grasp  the  situation,  there  are  two  great  objects  which 
the  Convention  should  seek  to  accomplish.  First,  and  above  everything  else,  "  Suffrage 
and  Election  Reform."  Second,  the  adoption  of  such  constitutional  provisions  as  will 
give  simplicity  and  greater  economy  in  the  administration  of  the  State  and  local  govern- 
ments. 

Suffrage  and  election  reform  must  go  hand  in  hand  together. 

By  suffrage  reform,  I  understand  such  constitutional  regulation  of  suffrage  as 
will,  as  far  as  practicable,  under  the  limitations  of  the  fifteenth  amendment  to  the  Con- 
stitution of  the  United  States,  eliminate  the  vicious  and  ignorant  negro  vote  as  a  po- 
tential factor  for  evil,  and  place  the  control  of  your  State,  county  and  municipal  govern- 
ments, everywhere  in  the  Commonwealth,  securely  and  permanently  in  the  hands  of  the 
voters  of  the  Caucasian  race,  that  race  which,  by  the  traditions,  training  and  experience 
of  a  thousand  years,  is  best  fitted  for  the  exercise  of  the  powers  of  government.  This 
is  the  policy  of  wisdom,  prompted  not  by  hostility  to  the  negro  race,  but  alike  by  the 
best  interests  of  both  races. 

By  election  reform,  I  understand  such  constitutional  regulation  of  suffrage  as 
the  commission  of  the  crimes  of  bribery,  false  registration,  false  counting  or  other  cor- 
rupt practices  in  connection  with  elections,  so  dangerous,  that  even  daring  criminals 
and  wrong-doers  will  be  deterred  from  their  perpetration.  These  two  reforms  seem  to 
me  to  be  the  imperative  duty  of  the  hour.  To  their  accomplishment  I  would  subject  all 
other  issues  and  questions  and  constitutional  provisions,  except  those  which  are  the 
hereditary  muniments  of  liberty.  With  these  reforms  embodied  in  a  fundamental  law 
of  the  State,  we  can,  I  believe,  trust  the  Legislatures  chosen  by  the  electorate  as  consti- 
tuted by  the  new  Constitution,  to  adopt  such  other  measures  for  good  and  economical 
government  and  to  adopt  such  other  reforms,  as  the  demands  of  a  free  and  progessive 
people  may  require.   If  not — 

And  I  ask  the  gentlemen  who  are  insisting  that  this  matter  of  statutory  legislation 
and  all  these  details  shall  be  embodied  in  the  Constitution,  to  answer  this  proposition, 
which  I  quote  from  that  letter. 

If  not,  free  institutions  and  popular  government  will  prove  a  failure  in  this  Common- 
wealth, which  was  the  first  among  the  nations  of  the  earth  to  form  a  government  for  a 
free  people  by  the  terms  of  a  written  Constitution. 

In  my  judgment,  therefore,  the  Constitution  should  not  be  loaded  do^Ti  with  pro- 
visions which  will  more  probably  come  within  the  domain  of  legislative  enactment,  for 
the  sufficient  reason  that  what  shall  be  written  in  the  Constitution  cannot  be  changed 
except  by  an  expensive  and  tedious  procedure,  and  for  the  further  reason  that  such  pro- 
visions, however  meritorious  in  themselves,  will  tend  to  strengthen  the  opposition  to 
the  adoption  of  any  constitution  which  may  be  framed,  and  this  upon  issues  of  secondary 
importance. 

Now,  Mr.  Chairman,  I  wish  to  say  that  in  my  judgment  there  is  no  necessity  for 
the  enactment  of  such  a  law  in  your  Constitution.    Without  violating  those  principles 


2400  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

which  should  govern  a  Constitutional  Convention,  you  can  embody  in  your  Constitution 
the  principles  which  should  control  the  Legislature  in  regard  to  this  matter,  but  not 
tie  their  hands — not  to  frame  in  all  of  its  details  and  minutiae  a  law  to  govern  this 
great  subject  throughout  the  life  of  this  Constitution.  I  believe  there  is  no  necessity 
for  it,  because  I  have  confidence  in  the  representatives  of  the  people  of  Virginia,  both 
in  the  House  of  Delegates  and  in  the  Senate,  that  they  will  not  fail  to  carry  out  the 
wishes  of  the  people.  The  arguments  in  favor  of  a  necessity  for  the  creation  of  a  cor- 
poration commission  with  power,  are  a  hundred-fold,  yes,  Mr.  Chairman,  a  thousand- 
fold stronger  now  than  they  were  in  1884  when  the  first  railroad  commission  bill  was 
defeated;  than  they  were  in  1888,  when  the  second  corporation  commission  bill  was 
defeated  by  the  representatives  of  the  people  in  the  Senate;  yes,  and  defeated  by  the 
votes  of  the  representatives  of  the  cities  of  the  State  and  not  by  the  representatives  of 
the  counties  of  the  State,  and  they  are  a  hundred-fold  stronger  than  they  were  in  1890 
when  the  Kent  bill  was  again  defeated  by  the  votes  of  the  representatives  of  the  people 
in  the  Senate. 

And  why  do  I  say  that,  sir?  Competition  existed  at  that  time  in  Virginia.  There 
were  nine  or  ten  independent  railroad  companies  operating  in  the  State.  Now  there  is 
practically  but  one.  I  do  not  care  whether  you  call  it  "  combination,"  or  community  of 
ownership,  a  little  coterie  of  capitalists;  and  I  have  nothing  to  say  against  them  merely 
because  they  are  capitalists.  I  have  no  sympathy  with  that  spirit  which  would  tear  a 
man  down  simply  because  he  has  been  successful,  if  his  accumulations  were  honestly 
gained;  but  a  little  corterie  in  New  York,  or  Philadelphia  or  Chicago,  yes,  and  a  still 
smaller  coterie  in  the  city  of  New  York,  practically  and  ultimately  directs  the  policy 
and  controls  the  operations  of  every  railroad  system  in  Virginia.  So  that  the  only 
remedy  of  the  people  is  one  of  two  things.,  either  in  the  exercise  of  their  soverign  powers 
of  eminent  domain,  to  condemn  the  properties  of  these  companies,  to  seize  them,  to 
own  them,  or  else  by  wise  measures  of  legislation,  not  by  a  constitutional  enactment, 
to  regulate  them. 

I  had  omitted  to  say,  Mr.  Chairman,  that  there  may  be  another  danger  lurking  in 
this  bill.  I  omitted  to  mention  another  qualification  of  the  decision  of  the  Supreme 
Court  of  the  United  States,  in  Munn  vs.  Illinois,  and  in  the  Railroad  Commission  cases, 
which  seems  to  have  met  the  approval  of  the  majority  of  the  members  of  the  Supreme 
Court  of  the  United  States. 

The  last  decision  in  which  this  view  is  expressed  is  to  the  effect  that  it  it  not  com- 
petent for  a  Legislature  or  a  commission  created  by  a  Legislature,  to  interfere  with  a 
railroad  company  in  the  management  of  its  own  affairs.  I  do  not  know  exactly  how 
far  the  courts  will  carry  that  principle;  but  it  is  not  safe  to  adopt  a  constitutional 
enactment  which  has  not  stood  the  test  of  judicial  investigation,  which  is  in  large 
measure  novel,  experimental,  empyrical  in  its  provisions,  v>^hich  able  and  learned 
counsel,  as  fair-minded  and  as  competent  to  express  an  opinion  upon  a  question  of  this 
sort  as  any  gentleman  upon  this  floor,  with  as  much  knowledge,  perhaps  more  knowl- 
edge, of  railroad  affairs  than  any  of  us,  say  would  have  the  effect  of  vesting  in  this 
commission  the  right  to  interfere  in  the  management  of  the  property  and  affairs  of  a 
railroad  company  by  its  president  and  board  of  directors  and  its  general  manager  and 
its  other  officers;  and  if  such  a  ruling  should  obtain  in  the  Federal  courts,  where  will 
your  corporation  bill  be  in  that  regard?  Whereas,  if  it  is  an  ordinary  legislative  enact- 
ment, your  General  Assembly  at  its  next  session  after  such  decision,  can  cure  the  defect 
and  avoid  the  operation  of  the  invalid  provision. 

Mr.  Wise:  If  the  Supreme  Court  of  the  United  States  should  decide  that  this  act 
if  placed  in  the  Constitution,  is  unconstitutional,  would  not  the  Legislature  have  the 
same  right  then  to  legislate  that  it  would  have  if  we  did  not  put  it  in? 

Mr.  William  A.  Anderson:  If  the  Supreme  Court  of  the  United  States,  Mr.  Chair- 
man, were  to  decide  the  whole  of  that  article  was  unconstitutional,  it  would  be  abso- 
lutely void,  and  as  though  it  never  existed. 


DEBATES  OE  THE  CONSTITUTIOisTAL  C0XVEXTI02T  OF  VIRGIN-IA. 


2401 


The  Legislature  would  certainly  then  have  the  power  to  enact  a  corporation  law 
which  would  not  be  unconstitutional;  but,  Mr.  Chairman,  the  Supreme  Court  of  the 
United  States  will  never  hold  the  whole  of  this  act  unconstitutional.  No  man  who  has 
spoken  upon  that  question  upon  this  floor  has  claimed,  and  no  lawyer  v/ill  claim,  that 
every  provision  of  that  act  is  unconstiturional.  The  danger  is  that  that  court  may  hold 
that  some  one  vital  provision  of  that  act  is  unconstitutional  in  its  operation,  and  by  its 
terms  you  have  taken  from  the  General  Assembly  power  of  amending  that  act,  as  I 
understand  it,  and  its  most  important  and  vital  provisions,  in  reference  to  the  fixing  of 
rates. 

But  the  gentleman  from  Richmond  (Mr.  Meredith)  told  us  there  was  such  a  popu- 
lar demand  for  the  incorporation  of  this  identical  bill  in  the  Constitution,  that  we 
vrould  be  delinquent  in  the  discharge  of  our  duty  to  "our  constituents  if  we  failed  to 
respond  to  that  demand. 

Mr.  Chairman,  I  deny  the  proposition.  I  know  there  has  come  up  to  this  Conven- 
tion from  the  most  respectable  sources,  from  various  cities  in  the  State,  a  request  by 
gentlemen  who  I  am  sure  have  not  had  the  opportunity  to  study  and  consider  this 
article  (as  members  of  this  Constitution  have  done),  that  we  should  give  our  adherence 
to  that  article  without  the  crossing  of  a  "t"  or  the  dotting  of  an  "i,"  an  article  Vv^hich  I 
venture  to  say  if  the  decision  in  134  U.  S.  is  to  stand  as  the  law  of  this  country,  if  the 
law  as  laid  down  by  Judge  Thompson  is  the  lav/  of  this  country  upon  that  subject, 
could  not,  as  it  came  into  this  Convention,  from  the  committee  and  in  the  shape  in 
which  these  Chambers  of  Commerce  have  asked  us  to  adopt  it,  have  stood  the  test  of 
judicial  inquiry  and  investigation  in  the  Supreme  Court  of  the  United  States  for  a 
day. 

Those  objections  have  been  removed  by  amendments,  or  will  be  removed,  I  under- 
stand by  amendments.  How  can  any  man  say  that  act  even  as  amended  is  perfect? 
Do  these  gentlemen,  even  the  intelligent  members  of  the  Chambers  of  Commerce, 
understand  what  the  effect  of  this  bill  is?  Why  the  grievance  they  complain,  of  the 
outrages,  which,  according  to  their  case  as  presented  here  by  the  able  gentleman  from 
the  city  of  Danville  (Mr.  Withers)  and  most  forcibly  and  clearly  presented  too,  by  my 
friend,  the  able  representative  from  the  county  of  Halifax  (Mr.  Stebbins)  is  one  which 
is  beyond  any  remedy  which  we  can  give  them.  It  is  one  against  which  relief  can  only 
come  from  national  legislation. 

It  is  one  which  arises  from  interstate  commerce,  a,nd  not  intrastate  commerce,  from 
interstate  rates,  and  not  intrastate  rates.  I  will  say  to  my  talented  friend  from  Halifax 
(Mr.  Stebbins),  the  gentleman  of  facts  and  figures,  v\^ho  has  given  us  so  much  interest- 
ing information  in  detail  in  regard  to  these  matters,  that  no  relief  can  come  to  his 
community  in  the  vital  particulars  to  which  he  referred  except  from  legislation  by 
Congress,  or  the  enforcement  of  the  judgment  of  the  Interstate  Commerce  Commission 
at  Washington  as  has  already  been  rendered  in  favor  of  the  people  of  Danville. 

This  bill  will  give  little  or  no  relief  to  them.  At  the  most,  not  more  than  one- 
tenth — and  I  was  greatly  surprised  to  learn  that  this  was  the  case — of  the  railroad 
traffic  in  Virginia  is  intrastate  business.  Nine-tenths  of  it  is  interstate;  and  shall  we, 
in  order  to  give  relief,  even  if  you  were  certain  it  would  do  it  for  a  time,  depart  from 
a  salutary  principle  to  engraft  into  the  Constitution  as  part  of  the  fundamental  law  of 
this  Commonwealth  a  complicated  enactment  which  will  only  give  a  remedy  for  one- 
tenth  of  the  injustice  and  inequality  of  which  the  people  are  complaining? 

Mr.  Braxton:  I  think  the  proportion  of  traffic  to  which  the  gentleman  refers  as 
intrastate,  is  based  on  tonnage  and  not  on  revenue,  taking  it  upon  a  revenue  basis,  be- 
tween 20  and  30  per  cent,  of  it  is  intrastate;  and  the  reason  there  is  so  little  apparently 
on  a  tonnage  basis  is  due  to  the  fact  that  so  large  a  proportion  of  the  trade  is  coal, 
which  reduces  the  tonnage  proportion  much  lower,  as  coal  is  nearly  all  interstate.  If 
you  take  it  on  the  basis  of  the  money  that  is  paid  for*  freight,  between  20  and  30  per 
cent,  of  the  revenues  of  the  railroads  of  the  State  is  intrastate,  only  about  10  per  cent, 
of  the  tonnage  is. 


2402 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  William  A.  Anderson:  Mr.  Chairman,  I  am  not  prepared  to  question  nor  do  I 
question  the  statement  made  by  the  chairman  of  the  committee  on  this  subject.  The 
information  I  had,  which,  though  I  considered  it  authentic,  was  not  from  the  most 
authoritative  source,  was  that  five  per  cent,  only  of  the  business,  for  instance  of  the 
Chesapeake  and  Ohio  railway  was  intrastate  and  that  at  the  outside  not  more  than  10 
per  cent,  of  the  business  of  all  the  railroads  in  Virginia  was  intrastate. 

Mr.  Braxton:  If  the  gentleman  will  permit  me,  I  do  not  wish  to  make  the  state- 
ment I  did  make  on  my  personal  knowledge.  I  have  been  informed  that  is  true  from 
sources  which  I  think  are  reliable;  and  I  wish  merely  to  call  the  gentleman's  attention 
to  it.  If  he  wishes  to  investigate  it  further,  he  may  do  so;  but  I  think  upon  investiga- 
tion he  will  find  the  facts  as  stated  to  be  substantially  true;  that  the  figures  from  which 
he  gets  his  statement  that  the  Chesapeake  and  Ohio  has  only  5  per  cent,  of  the  intra- 
state work  is  based  upon  tonnage  and  not  upon  revenue. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  I  do  not  know  at  all  what  the  facts  are 
in  regard  to  that,  nor  am  I  informed  except  by  the  remarks  made  by  the  gentleman 
from  Augusta  (Mr.  Braxton). 

But  the  gentleman  from  Richmond  (Mr.  Meredith)  says  the  people  demand  it. 
W^hen  did  they  demand  it?  When  did  they  demand  that  we  should  put  such  an  article 
as  this  in  their  Constitution,  to  tie  their  hands  and  to  tie  the  hands  of  their  represen- 
tatives in  such  a  way  that  they  might  be  prevented  from  giving  them  the  very  sort  of 
relief  and  the  only  kind  of  relief  that  would  be  efficient.  Not  before  this  Convention 
was  elected.  There  was  a  little  meeting,  I  understand,  or  perhaps  a  large  meeting,  up 
in  the  city  of  Danville,  about  the  first  of  June  or  the  last  of  May,  arranged  by  some 
gentlemen  who  were  invited  to  consider  the  subject.  There  has  been  a  strong  demand, 
nor  am  I  surprised  that  there  should  be,  on  the  part  of  the  people  of  that  enterprising, 
patriotic  splendid  young  city  of  Danville.  They  ought  to  have  relief.  They  ought  to 
be  protected  against  unjust  discrimination  which  must  be  crippling  their  industries  in 
a  measure,  paralyzing  their  enterprise.  They  have  prospered  in  spite  of  these  condi- 
tions, but  how  much  more  prosperous  might  they  have  been  if  these  evils  had  been 
redressed,  if  relief  had  been  given  them  by  the  United  States  tribunals  or  legislation  of 
the  United  States  which  alone  could  give  redress  and  relief. 

But  where  else  has  there  been  such  a  demand  that  this  identical  measure — and  that 
is  what  gentleman  claim — should  be  put  in  the  Constitution  in  totidem  verbis?  I  have 
not  had  an  intimation  from  any  constitutent  of  mine  that  they  wanted  any  such  legisla- 
tion in  this  Constitution — not  from  one.  I  doubt  whether  one  man  in  a  hundred  in  the 
State  of  Virginia  had  ever  carefully  read  this  bill  before  this  discussion  began.  Why  it 
was  only  printed  in  its  present  form  a  few  days  before  it  was  taken  up  for  consideration 
by  the  Committee  of  theWhole.  I  doubt  whether  one  man  in  a  thousand  in  the  State  of 
Virginia  begins  to  understand  its  provisions,  and  I  have  no  idea  that  the  people  of  Vir- 
ginia are  demanding  that  we  should  put  such  an  act  of  legislation  in  their  Constitution 
as  part  of  their  organic  law. 

What  they  expected  us  to  do,  what  they  had  the  right  to  expect  us  to  do,  is  to 
reform  suffrage,  to  change  the  conditions  which  have  been  existing  in  this  State  now  for 
more  than  a  decade,  yes,  for  at  least  twenty  years,  and  which  if  not  changed  must  result 
in  the  deterioration  and  degeneracy  of  our  people.  That  great  reform  accomplished, 
Mr.  Chairman,  I  feel  we  can  safely  trust  Virginia  people  and  their  representatives  to 
protect  themselves  and  to  embody  in  the  laws  of  the  State  the  principles  which  we  should 
engraft  in  their  Constitution  upon  this  subject.  I  would  make  it  obligatory  upon  the 
Legislature  to  establish  a  corporation  commission,  with  powers  to  do  all  that  was  neces- 
sary to  be  done  to  regulate  commerce  in  the  State  and  to  prevent  discrimination  and 
extortion  and  give  to  the  people  of  the  State  a  reasonable  and  proper  service  on  the 
part  of  all  public  service  companies.  I  say  we  can  safely  trust  the  General  Assembly 
to  carry  into  law  any  provision  of  that  sort  we  put  into  this  Constitution,  and  without 
any  such  provision  the  conditions  in  Virginia  are  such  to-day  that  there  is  no  General 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2403 


Assembly  that  the  people  have  elected  or  in  my  jiidgment  that  they  will  elect,  that 
would  now  refuse  to  place  such  wholesome  legislation  upon  the  statutes  of  this  Com- 
monwealth. 

How  much  safer,  how  much  better  it  is  to  pursue  that  couse  than  to  attempt  to 
embody  in  your  Constitution  all  the  reforms  in  detail,  all  the  reforms,  however  meritori- 
ous, which  may  occur  to  the  active  and  sanguine  minds  of  this  Convention.  However 
meritorious,  each  one  of  these  propositions  may  be,  they  will  each  of  them  arouse 
hostility  to  your  Constitution  more  or  less  formidable;  and  your  Constitution  defeated, 
not  only  do  you  fail  in  accomplishing  corporation  reform,  but  you  fail  in  accomplishing 
that  still  more  important  desideratum,  suffrage  and  election  reform.  I  would  not  endan- 
ger either  one  of  them  to  insure  in  this  Constitution  the  most  perfect  corporation  law 
that  the  mind  of  man  could  frame;  and  we  may  endanger  the  adoption  of  any  instru- 
ment that  you  frame  here  by  embodying  in  it  too  many  reforms,  although  each  one  of 
them  may  be  of  the  highest  merit. 

Mr.  Chairman,  I  am  greatly  obliged  to  the  gentlemen  of  the  committee  for  the  care- 
ful and  earnest  attention  they  have  given  to  the  remarks  I  have  deemed  it  my  duty  to 
submit  and  which  I  regret  to  say  have  been  somewhat  disconnected  and  desultory  in 
their  character.  I  value  as  highly  as  members  of  the  Corporation  Committee  or  any  of 
the  advocates  of  the  corporation  article  the  zeal,  the  indefatigable  labor,  the  searching 
and  tireless  investigation  which  the  chairman  of  that  committee  and  his  associates  have^ 
through  weeks  and  months,  devoted  to  this  work;  and  if  I  thought  that  this  great  w^ork 
which  they  have  done,  the  great  contributions  which  they  have  made  to  the  literature 
the  learning  and  the  information  of  the  people  of  Virginia  upon  this  subject  is  to  be 
thrown  away,  I  would  be  still  more  loath  to  part  company  with  them,  or  to  vote  nsainst 
the  adoption  of  their  handiwork;  but  that  great  work  will  not  be  lost,  that  great  service 
will  still  be  of  inestimable  value  to  the  people  of  Virginia,  and  when  your  General 
Assembly  comes  to  frame  a  law  in  accordance  with  the  mandate  of  this  Convention, 
carrying  out  and  giving  effect  to  the  principles  upon  this  subject  which  alone  it  is  proper 
and  right  we  should  embody  in  the  Constitution,  they  can  use  and  they  will  use  and 
adopt  much  of  the  wisdom  and  of  tlTe  well  considered  suggestions  of  the  gentlemen  who 
have  thus  blazed  the  way  for  legislation  by  the  proper  legislative  body  of  the  State  upon 
this  subject. 

I  thank  you,  Mr.  Chairman,  and  gentlemen  of  the  Convention  for  your  kind  atten-. 
tion.  (Applause.) 

Mr.  Keezell:  Mr.  Chairman,  this  morning  when  I  had  the  honor  to  be  presiding 
over  the  Committee  of  the  Whole,  the  gentleman  from  Rockbridge  (Mr,  Anderson),  in 
making  some  allusion,  referred  to  what  the  Chairman,  who  had  some  experience  in  leg- 
islative matters  well  knew.  I  do  not  know  that  I  quote  his  language  exactly,  I  undertook 
to  get  his  language  from  the  stenographer,  but  he  was  engaged  at  the  time  in  reporting 
the  proceedings  of  the  Convention  and  I  was  unable  to  get  it.  If  I  understood  the  gen- 
tleman from  Rockbridge  correctly  what  the  gentleman  stated  I  did  know  is  exactly  what 
I  do  not  know  and  that  was  that  there  had  been  no  public  demand  for  a  corporation 
commission  or  a  railroad  commission  in  Virginia.  The  gentleman  himself  stated  that 
through  three  of  four  successive  Houses  of  Delegates  a  plan  more  or  less  effective  had 
been  passed,  and  it  had  failed  to  become  a  law  because  it  was  not  approved  by  the  Sen^^ 
ate.  It  appears  to  me  that  allusion  ought  to  be  a  refutation  of  the  statement  which  he 
made,  because  the  House  of  Delegates  would  not  have  passed  in  three  or  four  succes-. 
sive  sessions  a  bill  for  which  there  was  no  public  demand. 

I  want  to  say  now,  Mr.  Chairman,  that  I  believe  if  he  had  been  as  familiar  as  I  am 
with  the  fate  of  those  measures  in  the  Senate,  he  would  not  have  made  the  statement 
he  did  make.  Those  measures,  many  of  them,  upon  various  occasions,  went  to  the  Com- 
mittee on  Roads  and  Internal  Navigation  of  the  Senate  and  you  could  not  prize  them 
away  from  that  committee  with  a  crowbar. 

Mr.  Chairman,  it  may  be  that  the  time  will  come  when  there  will  be  such  a  popular 

1     ...   _ 


2404 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


uprising  as  will  demand  at  the  hands  of  the  General  Assembly  legislation  of  this  nature, 
which  the  corporations  of  the  State  are  not  exactly  willing  to  give,  but  it  will  be  gotten 
at  the  point  of  the  sword,  in  my  judgment,  like  Magna  Charta  was  gotten  by  the  barons 
at  Runnymede;  and  I  do  not  wish  to  be  put  in  the  attitude  of  endorsing  the  statement 
of  the  gentleman  from  Rockbridge  as  of  my  knowledge  believing  the  statement  which 
he  made  to  be  a  correct  one  with  reference  to  the  General  Assembly  of  Virginia. 

On  motion  of  Mr.  Braxton  the  Committee  rose  and  the  President  pro  tempore 
resumed  the  chair. 

On  motion  the  Convention  adjourned  until  tomorrow,  Thursday,  February  13,  1902, 
at  10  o'clock  A.  M. 


THURSDAY,  February  13,  1902. 

The  Convention  met  at  10  o'clock  A.  M.,  the  President  pro  tempore  in  the  chair. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations,  Mr. 
Keezeil  in  the  chair. 

Mr.  Blair:  Mr.  Chairman  and  gentlemen  of  the  committee,  it  is  with  hesitation 
that  I  take  the  floor  this  morning  to  endeavor  to  address  a  few  remarks  on  a  question 
v/hich  has  occupied  the  time  and  talent  of  so  many  of  our  most  brilliant  leaders;  but  as 
I  was  unable,  gentlemen,  to  endorse  the  majority  report  of  this  Committee  on  Corpora- 
tions, and  as  I  was  also  unable  to  agree  with  the  minority,  I  think  that,  in  justice  to 
myself  and  the  Committee  of  the  Whole,  I  should  endeavor  to  explain  my  position.  I 
ask  the  attention  and  indulgence,  therefore,  of  the  committee  while  I  briefly  attempt  to 
explain  my  position  as  a  member  of  this  committee. 

It  was  with  reluctance  that  I  was  constrained  to  differ  from  the  rather  large 
majority  of  the  committee,  but  I  am  compelled  to  do  so.  If  unwavering  zeal,  gentlemen, 
and  untiring  energy  were  the  criterion  by  which  constitutional  provisions  are  judged 
then  I  believe  the  result  of  the  labors  of  my  friend,  the  distinguished  chairman  of  the 
Committee  on  Corporations  (Mr.  Braxton),  would  occupy  a  conspicuous  place  in  txie 
Constitution  which  we  are  now  about  to  frame.  But  such  is  not  the  case.  I  had  come 
to  regard  a  Constitution  as  the  instrument  which  fixes  the  basic  and  fundamental  prin- 
ciples which  are  to  govern  the  body  politic,  and  I  therefore  cannot  help  viewing  with 
alarm  any  attempt  to  embark  the  old  ship  of  State  upon  the  dangerous  and  unknown 
seas  of  experimental  legislation. 

As  to  the  dissenting  report  of  the  two  distinguished  members  of  that  committee, 
I  agreed  with  most  of  their  reasoning,  but  with  very  little  of  their  conclusion.  I  do  not 
believe  the  Constitution  is  the  place  to  put  this  corporation  commission.  In  fact,  I  do 
not  believe  in  such  a  commission  at  all.  If  any  crying  evils  exist,  which  I  do  not  concede, 
then  I  do  not  believe  this  is  a  remedy  which  will  effect  a  cure.  It  is  a  serious  thing  to 
put  in  the  hands  of  two  men — a  majority  of  this  commission — the  corporate  interests  of 
the  State  of  Virginia. 

The  proposition  to  establish  this  commission  contemplates  the  creation  of  three 
more  salaried  officers,  varying  from  $3,000  to  $5,000  per  annum  each.  I  came  to  this 
Convention  in  the  interest  of  a  constituency  which  believes  that  in  Virginia  there  is  a 
prolific  field  for  economic  legislation.  I  therefore  cannot  sanction  this  measure,  which 
will,  in  my  opinion,  impose  additional  burdens  upon  an  already  overtaxed  citizenship, 
without  affording  any  relief  for  their  real  or  imaginary  wrongs.  It  has  not  been  with 
any  iconoclastic  spirit  that  I  have  invariably  voted  for  the  abolition  of  all  superfluous 
administrative  offices  in  this  State,  whenever  an  opportunity  offered  either  in  the  stand- 
ing committees,  the  Committee  of  the  Whole,  or  the  Convention  itself. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYENTIOX  OF  VIRGINIA. 


S4D5 


I,  of  course,  recognize  the  fact  that  constitutional  innovation  is  essential  to  keep 
pace  with  the  march  of  progress  and  of  mind,  but  when  I  recall  that  the  most  prosperous 
and  progressive  days  of  our  Commonwealth  have  been  passed  under  our  present  system 
of  constitutional  government,  and  when  my  own  section  of  Southwest  Virginia,  that  I 
have  seen  in  my  comparatively  brief  career  transformed  from  the  home  of  the  moon- 
shiner into  the  home  of  a  prosperous,  happy  and  contended  people — the  garden  spot  of 
old  Virginia — then,  naturally,  I  pause  before  I  sanction  this  piece  of  idealistic  legisla- 
tion. 

Had  it  not  been  for  corporations  in  Southwest  Virginia,  the  farmers  would  to-day 
still  be  striving  to  eke  out  a  scant  sustenance  by  tilling  the  soil  over  mines  of  fabulous 
and  inexhaustible  wealth.  Twenty-five  years  ago  the  land  in  the  coal  regions  of  Poca- 
hontas could  have  been  brought  for  from  $5  to  $10  per  acre.  It  has  been  argued  that 
this  commission  should  be  placed  in  the  Constitution  because  the  General  Assembly  is 
always  dominated  by  corporations.  To  my  mind  such  argument  is  extremely  fallacious. 
If  a  majority  of  the  General  Assembly,  or  of  the  upper  branch  thereof,  can  be  dominated 
by  corporations  into  passing  or  refraining  from  passing  laws  in  their  interest,  how 
much  easier  it  would  be  to  dominate  a  majority — two  members — of  this  corporation 
commission? 

We  have  had  nothing  before  this  Convention  to  convince  us  that  such  legislation  is 
necessary.  The  mere  fact  that  Danville  has  been  discriminated  against  does  not  prove 
it.  If  she  has  been  discriminated  against,  then,  a  fortiori,  some  other  section  of  the 
State  has  been  discriminated  in  favor  of,  and  this  is  simply  raising  up  one  section  by 
pulling  down  another,  and  it  is  certainly  not  a  case  of  which  a  Constitutional  Convention 
should  take  cognizance. 

Now,  we  have  heard  gentlemen  argue  that  North  Carolina  had  a  commission  and 
that  Georgia  had  a  commission,  but  we  have  had  nothing  to  show,  and  there  has  been 
no  contention  that  either  one  of  those  States  is  any  better  off  thereby.  Is  there  a  mem- 
ber of  this  Convention  who  will  contend  that  Georgia  or  North  Carolina  is  more  pros- 
perous with  a  railroad  commission  than  Virginia  is  without  it?  I  do  not  believe  any- 
body will  make  such  a  contention  .  It  is  our  proud  boast  that  we  lead  all  of  our  sister 
Southern  States  in  the  march  of  progress  and  prosperity.  Then  should  not  two  things 
be  demonstrated  to  this  Convention,  beyond  the  peradventure  of  a  doubt:  Namely,  that 
legislation  is  necessary,  and  secondly  that  the  Constitution  is  the  place  to  put  it.  We 
live  in  a  busy  age.  The  conditions  that  confront  us  to-day  may  be  entirely  different  to- 
morrow. The  kaleidoscope  of  modern  civilization  is  ever  shifting.  We  should  therefore 
consider  long  and  well  before  we  put  into  our  organic  law  detail  legislation  which  may 
cripple  the  arm  of  labor  and  crush  the  foot  of  progress. 

I  voted  for  the  employers'  liability  act,  but  I  had  my  doubts,  even  then,  as  to  the 
wisdom  of  such  a  course,  but  after  I  remembered  that  the  two  great  political  parties  of 
this  State  had  put  such  a  measure  in  their  platform,  then  I  deferred  to  such  overwhelm- 
ing endorsation. 

Now,  gentlemen,  in  my  section  of  the  State  we  have  a  vast  expanse  of  undeveloped 
territory,  awaiting  corporate  capital  to  expose  its  latent  possibilities.  It  is  a  new  coun- 
try. Had  it  not  been  for  the  corporations  we  would  be  now  where  some  of  the  more 
rural  sections  are.  With  one  railroad,  and  no  competing  line  that  country  has  taken  the 
front  of  our  prosperity  and  our  advancement.  And  another  thing,  that  very  few  of  us 
consider  is  the  fact  that  that  corporation,  the  Norfolk  and  Western  Railroad,  which  has 
developed  that  section  of  country,  is  a  permanent  industry,  and  that  the  money  and 
revenue  they  are  receiving  from  that  section  of  country  is  being  largely  put  back  into 
developing  that  road  into  what  is  to-day  one  of  the  best,  if  not  the  best,  in  Virginia. 

When  I  listen  to  the  speeches  in  favor  of  this  Corporation  Commission,  I  concede 
that  it  has  its  possibilities,  but  I  am  at  the  same  time  reminded  of  a  little  anecdote 
that  I  heard  once  about  a  farmer  and  his  son.  They  sold  their  farm  which  they  had 
cultivated,  and  went  back  further  in  the  mountains  and  went  to  cultivating  what  is 


2406 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


known  as  new  ground.  Now  both  the  farmer  and  his  son  were  very  profane.  They 
would  go  out  in  the  morning  and  plough  up  some  of  this  new  ground,  and  you  could 
hear  them  swearing  at  their  mules  as  they  ploughed.  Time  went  on,  until  a  revival 
was  started  in  the  community  by  one  of  these  exhorters,  and  he  preached  a  pretty  good 
sermon  and  prayed  a  powerful  prayer,  and  so  worked  on  the  old  man  that  at  last  he 
"  came  through,"  as  the  expression  is. 

He  went  back  home,  and  the  next  morning  he  started  in  to  plough.  He  spoke  very 
mildly  to  his  mules,  but  they  would  not  budge.  Then  he  tried  to  lead  them,  but  still 
they  would  not  move.  Finally  he  called  to  his  son,  who  had  not  gotten  religion,  and 
was  not  having  any  trouble  v/ith  his  mules.  His  son  came  over  to  him,  and  ripped  out 
an  oath  or  two,  and  the  mules  lifted  up  their  heads  and  walked  right  off. 

A  night  or  two  after  this  occurrence,  the  revival  v/as  still  in  progress,  and  everybody 
was  there,  the  old  man  sitting  down  in  a  front  seat,  shouting  "  amen."  Presently  he 
looked  up  and  saw  his  son  coming  down  the  aisle,  and  he  went  to  him  and  he  said: 
"  Sit  down,  my  son;  I  want  to  talk  to  you  a  little.  You  are  going  to  the  mourner's 
bench?"  The  son  said,  "Yes  father,"  and  the  old  man  said,  "Well,  my  son,  I  want  you 
to  remember  that  religion  is  a  pretty  good  thing;  but  you  must  remember  also  that  we 
have  got  a  great  deal  more  of  that  new  ground  to  plough  yet." 

So,  gentlemen,  while  this  corporation  commission  may  be  a  pretty  good  thing,  I 
cannot  give  it  my  sanction  because  we  have  a  good  deal  .more  new  ground  to  plough  in 
my  country  yet. 

Now,  I  believe  we  have  already  made  some  mistakes.  I  believe  we  will  make 
others.    I  will  summarize  a  few  mistakes  that  in  my  opinion  we  have  made. 

The  first  and  greatest  mistake,  in  my  opinion,  was  to  have  ever  come  here  at  all. 

The  next  was  when  the  Convention  refused  to  take  the  oath  of  office  to  discharge 
their  duties. 

The  next  was  when  the  Convention  denied  to  the  people  the  right  to  select  the  judges 
who  should  preside  over  their  courts. 

The  next  was  when  the  Convention  turned  over  to  the  tender  mercies  of  the  Uni- 
versity and  colleges  the  common  schools  of  the  poor  people  of  this  Commonwealth. 

I  could  name  other  mistakes  of  lesser  importance  we  have  made;  but  now  I  am  going 
to  advert  to  a  few  that  I  believe  we  can  yet  make. 

I  believe  we  will  make  a  mistake  by  establishing  an  educational  or  property  qualifi- 
cation. 

I  believe  we  will  make  a  mistake  by  not  submitting  the  new  Constitution  to  the 
people,  as  we  promised,  and  as  they  have  reason  to  expect. 

But,  gentlemen,  I  believe  there  are  two  other  mistakes  that  we  can  make,  that  will 
cap  the  climax.  The  first  is  the  adoption  by  this  Convention  of  this  ecclesiastical  bastard 
that  the  gentleman  from  Culpeper  (Mr.  Barbour)  is  seeking  to  father,  commonly  klnown 
as  the  Barbour-Quarles  resolution,  but  which  the  gentleman  from  Augusta  expressly  dis- 
owns and  repudiates.  The  second  is  the  adoption  of  the  majority  report  of  the  Com- 
mittee on  Corporations,  relating  to  this  Corporation  Commission. 

Gentleman,  I  thank  you  for  your  attention. 

Mr.  Thorn:  Mr.  Chairman,  I  shall  not  detain  the  committee  long.  My  condition 
of  health,  if  nothing  else,  would  prevent.  In  fact,  it  is  with  extreme  reluctance  that 
I  trespass  at  all  upon  its  attention.  I  have  seriously  questioned  with  myself  whether  I 
should  participate  in  this  debate.  I  have  feared  that  my  identification  with  some  of 
the  larger  business  interests  of  Virginia  might,  in  the  minds  of  some  upon  this  floor, 
make  me  an  unwelcome  contributor  to  this  discussion. 

But  when  I  consider  the  great  issues  which  are  here  involved,  the  large  bearing 
that  the  decision  we  shall  here  reach  will  have  upon  the  destinies  of  my  people,  I  feel 
my  duty  will  be  best  done  if  I  ask  at  the  hands  of  this  committee  calm  consideration 
of  those  views  which  address  themselves  with  so  much  force  to  me. 

It  will  be  remembered,  Mr.  Chairman,  that  I  am  one  of  the  representatives  upon  this 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  2407 

floor  of  a  community  largely  interested  in  commercial  instrumentalities.  I  have  lived 
in  that  community  for  a  little  over  twenty  years.  In  that  time  I  have  seen  it  more  than 
double  in  population.  I  have  seen  its  property  more  than  treble  in  value.  I  have  watched 
the  spirit  of  its  people  awake  into  new  life,  and  have  seen  a  large  conservative  and 
cosmopolitan  sentiment  dominate  their  thought  and  their  action.  I  have  studied  the 
cause  of  this  difference  and  its.  growth.  VvTien  I  first  went  to  the  city  of  Norfolk  there 
were  two  short  railroads  making  their  terminal  at  that  port — one  the  Atlantic,  Miss- 
issippi and  Ohio,  extending  405  miles  to  Bristol,  the  other  the  Seaboard  and  Roanoke, 
extending  a  little  over  300  miles  into  North  Carolina — making  less  than  800  miles  of 
road  with  the  termini  at  that  point.  I  have  seen  added  to  its  transportation  facilities 
the  Atlantic  and  Danville,  the  Southern,  the  Atlantic  Coast  Line,  the  Norfolk  and  South- 
em,  the  Virginia  Beach,  the  Chesapeake  and  Ohio  and  the  Pennsylvania  system  of  rail- 
roads. I  have  seen  its  mileage  grow  from  less  than  SCO  miles  to  about  15,000  miles  with 
termini  on  that  harbor,  and  I  have  seen  the  growth,  the  prosperity  and  the  power  which 
has  been  brought  to  us  by  that  great  movement. 

It  will  be  understood  then,  Mr.  Chairman,  that  my  people — and  I  speak,  I  hope,  not 
alone  for  those  in  my  own  city,  but  for  all  the  people  around  that  harbor,  where  now 
one  line  of  electric  lights  starts  in  the  city  of  Norfolk  on  the  one  hand  and  runs  down 
Hampton  Roads  and  returns  via  Portsmouth  and  Berkeley  on  the  other — where  there 
is  now  congregated  a  population  not  of  a  few  thousand,  but  probably  of  250,000  people, 
whose  prosperity  is  largely  made,  and  who  are  there  creating  taxable  values  for  the 
whole  State  of  Virginia — I  say  speaking  especially  for  that  people,  it  will  be  realized 
that  I  represent  upon  this  floor  no  sentiment  which  is  in  any  sense  hostile  to  railroads. 
But  more  than  that,  Mr.  Chairman,  I  think  I  may  speak  for  the  whole  State  of  Virginia. 
Within  the  time  I  have  mentioned  in  my  own  city  there  has  been  added  to  the  taxable 
values  upon  which  this  State  is  living  at  least  $17,000,000  out  of  the  $26,000,000  that  are 
now  there.  I  have  seen  the  city  of  Richmond  grow  and  add  its  quota  of  values  to  the 
taxation  basis  of  the  State.  I  have  watched  the  same  growth  in  every  portion  of  this 
Commonwealth  and  more  especially  have  I  seen  the  railroads  of  this  State  create  the 
taxable  values  of  two  whole  cities,  the  cities  of  Roanoke  and  Newport  News,  and  add 
them  to  the  basis  of  the  life  of  this  Commonwealth. 

But,  notwithstanding  this  friendly  sentiment  which  we  have,  and  which  I  think 
this  State  should  have  to  railroads,  I  realize  that  this  discussion  cannot  properly  assume 
upon  this  floor  the  form  of  a  discussion  from  the  standpoint  of  the  railroad  companies 
of  Virginia.  I  realize  that  our  highest  allegiance,  as  we  stand  here  in  our  representative 
capacity,  is  to  the  Commonwealth  of  Virginia,  and  I  realize  more  than  that,  that  if  the 
soundness  of  the  position  which  gentlemen  assume  upon  this  floor  cannot  be  upheld 
and  demonstrated  from  the  standpoint  of  the  State,  it  has  no  right  to  find  favor  in  the 
hands  of  these  representatives. 

I  shall  attempt,  Mr.  Chairman,  to  discuss  this  question  not  from  the  standpoint  of 
any  private  interest,  no  matter  how  great  or  far-reaching,  but  to  discuss  it  from  the 
standpoint  of  the  interest  of  our  whole  people,  and  to  ask  you,  in  the  name  of  Virginia, 
whether  or  not  the  views  which  I  shall  lay  before  you  are  entitled  to  your  favorable 
consideration,  and  to  ask  you  to  apply  that  test,  and  that  test  alone. 

It  is  proposed  here,  in  the  interest  of  this  State,  Mr.  Chairman,  to  put  an  unusual 
article  into  the  Constitution. 

Let  me  invite  3-our  attention  to  what  this  proposition  is.  I  say  it  is  unusual,  and  I 
shall  attempt  to  show  you  that  it  is  not  only  unusual,  but  that  it  is  unprecedented  in 
the  constitutional  history  of  this  country,  and,  so  far  as  I  know,  unprecedented  even 
in  the  statutory  history  of  this  country.  VTiat  is  this  proposition?  Is  it  a  proposition 
merely  to  control  the  rates  of  railroads?  Is  it  a  proposition  merely  to  establish  a  State 
bureau  which  shall  determine  the  justice  or  the  injustice  of  the  charges  of  these  common 
carriers,  or  is  the  proposition  to  go  far  beyond  that  position,  and,  in  addition,  to  take 
from  the  men  who  are  responsible  for  the  management  of  these  properties  the  absolute 
control  of  them  in  every  essential  respect? 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


For  the  purposes  of  my  argument,  Mr.  Chairman,  I  shall  not  challenge  the  power 
of  the  State  of  Virginia  to  do  this  thing.  While,  as  presented  in  this  bill,  I  seriously 
doubt  the  constitutionality  of  the  proposition  in  some  matters,  in  large  and  essential 
matters,  and  while  in  another  respect  I  know  that  the  bill  is  unconstitutional,  I  shall 
not,  for  the  purpose  of  the  argument  to  which  I  am  now  inviting  yonr  attention,  discuss 
it  from  the  standpoint  of  that  unconstitutionality,  but  shall,  for  the  purpose  of  my  argu- 
ment, admit  the  power  of  the  State  of  Virginia  to  do  what  is^  here  attempted.  But  while 
for  that  purpose  admitting  the  power,  I  challenge  the  wisdom  of  the  policy.  * 

It  is  likewise  within  the  power  of  the  State  of  Virginia  to  own  the  railroads  of  the 
State,  and  yet,  as  I  challenge  the  policy  of  the  State  ownership,  so  I  challenge  the  policy 
of  an  assertion  of  unlimited  State  control.  Let  us  see,  Mr.  Chairman,  the  extent  to 
which  this  State  control  is  asserted: 

The  said  commission  shall  have  the  power  and  be  charged  with  the  duty  of  super- 
vising, regulating  and  controlling  all  transportation  and  transmission  companies  doing 
business  in  this  State  in  all  matters  relating  to  the  performance  of  their  public  duties 
and  of  their  charges  therefor. 

Broad  and  comprehensive  as  that  language  is,  and  frought  with  the  possibilities 
for  destruction  and  confiscation,  our  friends  are  not  prepared  to  stop  at  that  point.  They 
are  not  willing  to  leave  it  to  general  language  to  carry  out  their  purpose,  but  they  go 
further  and  state: 

That  the  said  commission  shall  from  time  to  time  prescribe  and  enforce  such  rates 
of  charges,  classification  of  traffic,  rules  and  regulations,  and  shall  require  them  to  estab° 
lish  and  maintain  all  such  public  service,  facilities  and  conveniences  as  the  said  com- 
mission may  "  within  constitutional  limits  "  deem  just  and  reasonable. 

Not  only  has  this  railroad  commission  the  power  to  control  the  rates  of  charges., 
but  it  has  the  power  to  control  the  number  of  trains,  the  constituent  elementsi  of  the 
trains,  the  character  of  the  cars,  the  number  of  the  cars,  the  schedules  upon  which  they 
shall  run,  and  everything  by  which  a  cent  of  revenue  may  be  earned,  and  everything 
by  which  losses  may  be  incurred.  I  say,  gentlemen,  there  never  has  been  a  power  so 
extensive,  so  far  as  I  know,  asserted  in  any  Constitution;  and  I  will  go  further  and  say 
that,  so  far  as  I  know  (although  I  have  not  had  access  to  the  statutes,  of  all  the  States), 
there  never  has  been  such  a  power  asserted  in  any  statute  law  of  this  country. 

Now,  gentlemen,  that  is  the  power  that  is  asserted  here.  That  is  the  thing  that  a 
Constitutional  Convention  is  invited  to  do — not  to  put  this  matter  into  a  shape  where 
it  may  be  fairly  tested,  and,  if  necessary,  changed,  but  to  absolutely  take  it  up  and 
crystallize  it  into  your  unchangeable  law. 

W^iat  has  been  done  by  others  when  they  were  attempting  to  deal  with  the  vital 
interests  of  their  people?  What  has  been  done  by  other  governments  when  they  were 
attempting  to  deal  with  this  all  important  subject?  Commissions  have  been  appointed, 
evidence  has  been  taken,  consideration  of  the  question  has  been  deliberately  gone  into, 
years  upon  years  have  been  spent  in  study  of  the  conditions  which  were  to  be  legis- 
lated about;  and  it  was  only  after  great  care  of  that  character  that  statutes  have  been 
made  dealing  with  these  questions.  And  yet  we  are  asked,  gentlemen,  in  a  condition 
of  disputed  fact,  under  the  heat  of  this  thrust  and  counter-thrust  of  acrimonious  debate, 
in  the  passion  of  political  charge  and  counter-charge,  and  of  neighborhood  complaint, 
to  take  the  vital  interests  of  our  people  and  deal  with  them  as  if  we  were  wise  enough 
to  know,  what  no  nation  on  earth  has  yet  been  able  to  discover,  a  final  and  complete 
and  satisfactory  and  safe  method  of  dealing  with  the  things  that  are  making  the  proSf 
perity  of  our  people. 

We  have  been  invited  upon  this  floor  to  listen  to  the  most  heated  charges  against 
the  companies  with  which  we  are  invited  to  deal  in  this  provision.  We  have  heard 
from  my  lifelong  friend  from  Northampton  (Mr.  Kendall)  a  declaration  that  there  is 


'DEBATES  OF  THE  COXSTITUTIOXAL  CONYEXTIOX  OF  VIRGINIA. 


2409 


an  irrepressible  war  between  capital  and  the  people.  We  have  been  invited  to  partici- 
pate  in  this  legislation  as  a  part  of  the  method  of  dealing  with  this  question,  and,  I 
suppose,  as  a  part  of  that  war.  We  have  been  told  by  him  that  he  would  as  soon  go 
and  reason  with  a  highway  robber  as  with  one  of  these  transportation  companies.  We 
have  heard  from  the  gentleman  from  Danville  (Mr.  Withers)  the  charge  that  these  com- 
panies are  guilty  of  high  crimes  and  misdemeanors.  We  have  been  told  by  him  that  the 
eagle  on  every  dollar  should  be  a  vulture.  We  have  heard  a  bitter  arraignment  from 
my  friend  from  Richmond  (Mr.  Meredith)  against  these  important  interests.  We  have 
been  stirred  by  those  considerations  which  we  would  expect  to  listen  to  upon  the  cross- 
roads hustings;  and,  in  the  atmosphere  thus  created,  in  the  midst  of  passions  thus 
stirred,  banished  from  the  calm  statesmanlike  consideration  which  we  ought  to  have 
about  us  vrhen  we  consider  this  question,  we  are  asked,  gentlemen,  to  find  a  method 
of  dealing  for  all  time  with  these  interests  which  can  do  so  much  and  have  done  so 
much  to  make  the  prosperity  of  Virginia. 

Gentlemen,  I  want  to  ask  you  if  we  are  in  a  Constitution-making  frame  of  mind 
in  the  midst  of  all  those  charges?  I  want  to  ask  you  if  you  are  certain  we  have  that 
calmness  of  view  upon  these  important  matters  which  we  ought  to  haA^e  in  dealing 
with  these  transcendent  interests.  I  want  to  appeal  to  you  calmly  and  dispassionately 
to  consider  the  functions  which  you  are  here  to  perform,  and  to  know  that  whatever 
you  do  is  done  not  in  passion,  but  in  the  calmness  of  statesmanlike  consideration. 

WTiat  is  it,  then,  that  we  are  asked  to  do?  We  are  asked  to  take  the  conclusion 
of  eight  estimable  and  able  members  of  this  Convention,  involving  as  it  does,  in  im- 
portant and  essential  aspects,  the  destinies  of  our  people,  and  to  put  it  in  the  enduring 
form  of  organic  law.  Without  disrespect  to  them,  without  disrespect  to  this  Conven- 
tion, I  ask  you  whether  it  will  not  be  an  arrogation  of  wisdom  on  our  part  that  is  alto- 
gether unjustifiable.  Are  we  ready  to  admit  that  these  eight  gentlemen,  or  that  this 
Convention,  is  wise  enough  to  deal  now  finally  and  permanently  with  problems  which 
the  wise  men  of  the  earth  are  everywhere  admitting  have  not  reached  their  final 
solution. 

There  is  not  an  announcement  from  the  thoughtful  press  of  this  country;  there  is 
not  an  announcement  from  any  great  statesman-like  source  in  this  country,  that  the 
matter  of  control  of  railroads  has  passed  beyond  the  experimental  stage.  Why  should 
w^e  undertake  to  deal  with  it  in  final  form?  What  arrogation  of  wisdom  is  it,  on  our 
part,  to  attempt  that  task?  Is  there  any  calm  and  dispassionate-minded  man  within 
the  hearing  of  my  voice,  who  would  be  willing  now  to  make  a  contract  for  thirty  years 
controling  unknown  conditions  and  unknown  circumstances?  Is  there  a  dispassionate 
and  calm-minded  man,  within  the  hearing  of  my  voice,  w^ho  is  able  to  conceive  that 
he  w^ould  be  -filling  to  take  matters  intimately  affecting  the  destinies  and  the  pros- 
perity of  his  people,  and  to  put  them  to-day  in  some  final  and  enduring  form? 

Gentlemen,  for  many  years,  as  a  practicing  attorney,  I  have  been  brought  in  con- 
tact with  large  corporate  interests.  For  many  years  I  have  dealt  with  them  in  every 
shape,  from  organization  and  reorganization  up.  For  many  years  I  have  studied  their 
destinies  and  tendencies,  and  have  fixed  views  as  to  their  conditions;  but  if  this  Con- 
vention would  rise  up  as  one  man  and  confide  to  my  hands  the  power  to  write  into  this 
Constitution  an  enduring  law  which  should  govern  their  destinies,  I  should  decline  it 
at  the  hands  of  the  Convention.  I  believe  myself  absolutely  unfitted  to  assume  that 
responsibility;  and,  gentlemen,  with  all  deference  and  due  respect  to  the  other  mem- 
bers of  this  Convention,  I  cannot  conceive  that  there  is  in  it  a  wisdom  so  complete 
and  so  supreme,  that  it  can  forecast  the  future  in  these  great  matters  and  can  safely 
make  the  suit  of  clothes  which  they  are  to  wear. 

My  friend  yonder  from  Pulaski  (Mr.  Wysor)  tells  us  they  do  not  want  to  put  these 
great  organizations  into  strait-jackets,  they  merely  want  to  put  upon  them  a  suit  of 
clothes,  as  he  expresses  it,  so  that  they  may  go  into  decent  society.  But  let  me  call 
the  attention  of  my  friend  to  the  fact  that  the  suit  of  clothes  which  he  wants  to  make 
152 — Const.  Deb. 


2'410 


DEBATES  or  THE  CONSTITUTIOXAL  C02vrVENTI0>s"  OF  YIRGIXIA. 


for  them  is  to  lasit  for  thirty  years.  It  is  not  a  spring  time  or  a  winter  suit;  it  is  a  suit 
which  it  is  proposed  to  put  upon  them  and  make  them  wear  for  thirty  years.  Strip- 
ling, youth,  growing  as  the  form  is  upon  which  that  suit  is  to  be  placed,  he  proposes 
now  to  make  the  suit  and  expects  that  it  will  fit  when  these  great  instrumentalities 
have  grown  greater  and  stronger  and  into  different  form. 

If  my  friend  were  here  making  a  spring  suit  for  these  instrumentalities,  I  could 
not,  to  the  same  extent,  criticise  his  position;  but  he  loses  sight  of  the  fact,  gentle- 
men, which  I  want  to  bring  to  the  minds  of  this  Convention,  that  what  we  are  doing 
now  is  not  dealing  with  this  proposition  on  its  merits.  We  are  not  considering  it  from 
the  standpoint  of  passing  necessities,  but  we  are  dealing  with  it  with  the  assertion 
of  the  wisdom  to  be  able  to  make  that  suit  of  clothes  fit  and  change,  no  matter  what 
the  growth,  no  matter  what  the  change  of  form  that  these  things  may  assume  in  the 
next  twenty-five  or  thirty  years.  ' 

Is  it  wise,  gentlemen,  to  attempt  that?  I  appeal  to  the  calm  statesmanship  of  this 
body.  I  appeal  to  the  considerate  thought  of  you  men  here  to  tell  me  whether  what 
we  are  attempting  to  do  is  wise  or  safe  in  the  interests  of  our  people. 

Gentlemen,  the  assumption  of  a  man  who  gets  up  on  this  floor  and  asserts  his  wis- 
dom to  do  this,  with  all  due  deference  and  kindliness  to  him,  is  something  that  I  cannot 
contemplate,  except  with  a  feeling  of  awe. 

Let  me  invite  your  attention  to  the  character  of  these  institutions.  Let  me  ask 
you  to  consider  some  of  the  particulars  in  which  changes  in  regard  to  this  matter  have 
taken  place  in  public  sentiment  in  the  memory  of  every  man  within  this  body. 

Under  the  old  ideas  of  competition,  when  it  was  thought  the  safety  and  the  life 
of  the  people  depended  upon  having  railroads  run  in  competition  with  each  other,  after 
eleven  years  of  taking  evidence  and  of  consideration,  it  was  asserted,  as  a  fundamental 
principle  governing  the  transportation  interests  of  this  country,  that  there  should  be 
no  possibility  of  pooling  between  two  competitive  lines;  in  other  words,  that  no  two 
competitive  lines  could  make  an  agreement  to  maintain  rates  and  to  divide  earnings. 
That  was  accepted  as  a  proposition  from  which  there  could  be  no  dissent.  That  was 
accepted  as  a  proposition  so  fundamental  that  there  could  never  be  any  uncertainty 
about  it  or  any  change  in  it;  and  yet  what  is  its  history?  WTien  the  railroads  adjusted 
themselves  to  that  condition,  the  very  people  who  v/ere  once  its  advocates,  are  intro- 
ducing into  the  Congress  of  the  United  States  to-day  propositions  to  absolutely  permit 
pooling  in  the  interests  of  the  people. 

Suppose  that  when  it  was  accepted  as  a  sound  principle  of  economics,  it  had  been 
put  into  constitutional  form;  suppose  that  it  should  now  turn  out  that  the  men  who 
approve  of  pooling  are  right.  "What  remedy  would  there  be  in  the  interests  of  the 
people,  and  what  a  great  mistake  would  have  been  made! 

I  will  give  another  illustration.  The  wisdom  of  the  United  States  had  planted 
itself  at  one  time  upon  the  long  and  short  haul  clause,  upon  the  proposition  that  no 
lailroad  should  be  allowed  to  charge  except  under  exceptional  conditions,  a  smaller 
price  for  a  longer  haul  than  for  a  shorter  haul;  and  yet,  as  the  commercial  problem 
before  the  people  is  being  studied,  and  the  workings  of  this  principle  are  becoming  mani- 
fest, the  trend  of  thought  in  the  country  to-day  is  that  it  will  be  necessary  to  abrogate 
that  principle  in  the  interests  of  the  people  and  of  the  various  localities  in  the  United 
States.  Now,  suppose  that  proposition  had  been  put  into  constitutional  form;  suppose, 
after  its  adoption  into  the  Virginia  Constitution,  it  should  become  necessary,  in  order 
to  save  the  life  of  some  community  in  the  State,  that  there  should  be  permission  to 
charge  more  for  a  shorter  distance  than  for  a  longer  distance;  and  suppose  that  this 
railroad  commission  should  not  permit  it.  No  change  could  be  made  in  the  law  by 
the  Legislature,  because  the  commission  would  not  suggest  it  and  approve  it;  and  yet 
some  struggling  community  of  human  beings,  some  people  entitled  to  life  and  prosperity 
and  happiness,  as  much  as  you  and  I,  some  people  in  less  favored  location  than  the 
city  of  Norfolk  or  the  city  of  Richmond,  might  be  struggling  down  to  their  death  in 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2^11 


the  grasp  of  this  long  and  short  haul  clause,  and  there  would  be  no  power  in  all  the 
people  of  Virginia  to  change  it. 

I  call  your  attention  to  another  matter  as  an  illustration.  In  one  of  the  clauses  here 
suggested  for  your  adoption,  it  is  provided  that  there  shall  be  a  free  railroad  law  al- 
lowing, without  exception  as  to  the  Richmond,  Fredericksburg  and  Potomac,  the  par- 
alleling of  railroads  in  this  State;  in  other  words,  the  proposition  is  that  it  is  the  re- 
sult of  the  thought  and  wisdom  of  this  Constitutional  Convention,  that  paralleling  of 
railroads  must  be  permitted  as  a  fundamental  principle,  that  there  can  be  no  doubt 
whatever  about  the  principle,  and  that  there  never  can  come  a  time  in  the  history  of 
Virginia  when  that  will  not  be  in  the  interests  of  its  people. 

Let  us  look  at  it,  gentlemen.  Do  you  know  that  "on  the  continent  of  Europe  to-day 
there  is  a  law  which  absolutely  prohibits  the  paralleling  of  railroads?  Do  you  know 
that  the  interests  of  the  people  there  forbid  it?  Do  you  knovs'  that  the  experience  of 
that  older  civilization,  is  that  it  is  ruinous  to  the  best  interests  of  the  travelling  and 
shipping  public?  And  why?  Because  it  is  recognized  there  that  the  efficiency  of  rail- 
road service  depends  upon  its  success:  that  if  a  railroad  is  to  give  proper  service  to 
its  patrons,  it  must  have  the  business  to  support  it,  and  that  if  the  indiscriminate  par- 
alleling of  railroads  is  allowed,  you  thereby  take  away  from  an  established  line  its  power 
to  properly  maintain  itself  and  the  consequent  power  to  provide  proper  facilities  for  the 
people.  They  say,  "  VvTio  must  bear  at  last  the  consequences  of  disaster?  "  Is  it  the 
railroads  only?  Are  their  interests  the  only  ones  affected?  Or  is  it  the  people  who 
are  thereby  deprived  of  the  possibility  of  good  facilities? 

The  conclusion  reached  is  that,  at  last,  the  great  mass  of  the  people  have  to  bear 
the  consequences  of  the  lack  of  prosperity  and  the  consequent  lack  of  power  of  the 
railroads  to  give  proper  facilities;  and  acting  upon,  that  principle  in  Europe,  consider- 
ing that  to  be  a  sound  proposition,  they  have  declared  by  law  that  there  shall  be  no 
paralleling  of  railroads.  And  yet  we  as  a  result  of  a  few  months'  session,  as  a  result 
of  only  partial  experience,  with  no  deep  and  strong  and  complete  mastery  of  this  great 
subject,  declare  that  it  shall  be  forever,  as  long  as  this  Constitution  lasts,  a  funda- 
mental principle  in  Virginia  that  there  shall  be,  without  limit,  the  power  to  parallel 
any  railroad  in  this  State, 

I  confess,  gentlemen,  when  I  first  looked  at  that  proposition  I  was  in  favor  of  it; 
"but  the  least  study,  the  least  examination  of  the  conditions  which  have  surrounded 
these  great  interests  in  other  ci\ilizations,  showed  the  fallacy  of  attempting  to  follow 
m-y  limited  knowledge  and  my  limited  power  of  foreseeing  the  future  in  dealing  with 
the  great  interests  and  the  changing  interests  to  which  I  have  alluded. 

Gentlemen,  let  me  ask  this  committee  and  let  me  ask  this  Convention,  each  mem- 
ber, to  look  into  his  own  heart  and  tell  him-self — not  tell  me,  but  tell  himself — where 
he  got  the  experience  to  deal  finallj'  and  permanently  with  this  great  subject.  Can 
you  get  it,  gentlemen,  in  your  counting  houses?  Can  you  get  it  in  your  professions? 
Can  you  get  it  in  your  villages?  Can  you  get  it  in  your  countr^^  homes?  If  you  can, 
and  when  the  spot  where  it  is  discovered  is  once  found,  in  the  name  of  humanity  make 
it  known,  so  that  the  wise  men  of  the  earth  may  seek  there  for  what  they  have  sought 
in  vain  upon  a  broader  sphere,  and  find  in  the  interest  of  humanity  and  in  the  interest 
of  labor,  and  in  the  interest  of  all  the  people,  a  solution  of  a  problem  which  no  broad, 
strong,  well  informed  man  has  ever  said  was  yet  beyond  its  experimental  stages. 

I  confess  myself  powerless  in  the  presence  of  the  problem.  I  confess  I  am  unwilling 
to  deal  with  it  except  in  a  way  that  might  be  changed  if  occasion  should  arise.  There 
-?^ay  be  gentlem-en  here  who  have  the  confidence  in  their  own  ability,  the  confidence 
in  their  own  experience,  the  confidence  in  their  own  wisdom,  to  enable  them  to  do  it; 
but,  gentlemen,  let  me  ask  you  whether  such  a  man  as  that  is  a  safe  and  conserva- 
tive leader. 

Remember  what  you  are  dealing  with.  Remember  that  you  are  dealing  with  that 
force  which  is  making  the  taxable  values  of  your  people.    Remember  you  are  dealing 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


with  that  force  which  will  make  your  home  a  proper  place  for  the  energies  and  am- 
bitions of  your  sons.  Remember  you  are  dealing  with  the  very  vital  interests  of  your 
people;  and  answer  me,  as  you  stand  before  your  Maker,  have  you  the  wisdom,  have 
you  the  experience  to  deal  permanently  and  finally  with  the  problem? 

Now,  gentlemen,  those  propositions  are  entirely  satisfactory  to  my  own  mind.  I 
would  regard  them  as  axiomatic  truths,  except  that  I  have  lost  all  confidence  in  axioms 
since  I  have  been  a  member  of  this  Convention.  I  know  of  no  proposition  that  has 
not  been  challenged  here.  I  know  of  nothing  so  certain  in  mathematics  that  it  has 
not  found  its  critics  upon  this  floor;  and  while  I  am  sure  in  my  own  mind  of  the  truth 
of  the  proposition  that  it  is  not  wise  to  arrogate  to  ourselves  the  wisdom  and  foresight 
to  deal  permanently  with  a  changing  condition,  I  say  that  it  only  has  the  force  at  last 
of  an  axiom  in  my  mind,  and  I  cannot  expect  its  universal  acceptation. 

It  was  my  privilege  to  listen  a  few  years  ago  to  a  magnificent  address  delivered 
at  the  White  Sulphur  Springs,  just  across  the  border  in  West  Virginia,  from  one  of 
the  most  eminent  men  that  America  has  living  within  its  borders,  a  lawyer  of  great 
power,  a  citizen  of  great  patriotism,  a  statesman  of  great  experience,  so  far  as  a  man 
in  private  life  and  a  student  can  have  it.  He  was  telling  of  the  impossibility  of  put- 
ting into  the  form  of  a  written,  a  statute  law,  those  principles  of  the  common  law 
which  are  universally  recognized  by  the  courts.  He  was  pointing  out  to  us  that  th© 
great  glory  of  the  common  law  was  that  it  could  be  moulded  and  changed  to  fit  the 
different  conditions  and  necessities  of  the  people,  and  that  it  did  not  have  an  iron 
form  to  crush  growth  and  to  defy  expansion.  He  v/as  telling  us  that  the  future  of  our 
race  was  an  unknown  thing,  that  it  was  as  yet  unmeasured  and  as  vet  unmeasurable. 
He  was  telling  us  it  had  assumed  no  definite  and  final  form  and  that  the  necessities 
of  the  human  race  change  as  the  cycles  and  the  ages  come,  and  he  was  telling  us  how 
impossible  it  is  for  any  seer  to  look  so  far  in  the  future  as  to  be  able  to  fortell  its  neces- 
sities and  requirements  and  to  put  them  in  the  shape  of  a  written  law.  He  used  thi^ 
illustration:  "You  might  as  well  ask  the  naturalist  to  classify  the  fauna  and  the  ferna 
of  an  unknown  world." 

I  invite,  gentlemen,  the  attention  of  this  commitee  to  the  logic  of  that  illustration. 
I  invite  you  to  say  whether  the  conditions  of  the  future,  in  reference  to  the  transporta- 
tion interests  of  this  country,  are  known  and  certain  and  measurable.  I  invite  you 
to  tell  me  what  is  going  to  be  the  condition  of  ownership  of  these  great  facilities  in 
the  future.  Are  they  going  to  split  again  into  small  companies,  or  is  the  work  of  con* 
solidation  to  continue?  Is  it  going  to  be  private  ownership  or  State  ownership?  Are 
chey  always  going  to  be  confronted  v/lih  dependent  patrons,  or  may  the  processes  of 
combinations  go  on  among  their  patrons  until  some  great  steel  trust,  some  great  coal 
trust,  or  some  great  agricultural  trust,  or  some  of  the  great  combinations  of  the  influ- 
ences and  forces  of  the  age,  are  to  confront  them  with  a  power  greater  than  their  own? 

Is  it  always  to  be  true  that  their  shall  not  be  discrimination  among  patrons?  Is 
it  always  to  be  true  that  the  safety  of  the  individual,  when  confronted  by  the  combi- 
nation of  the  powers  of  larger  patrons,  will  not  lie  in  the  absolute  requirement  that 
these  transportation  companies  shall  give  discriminations  in  favor  of  individuals?  What 
has  the  future  in  store  for  us  all  in  these  matters?  How  is  this  great  problem  to  work 
itself  out?  What  is  to  be  the  ultimate  form  in  which  it  will  confront  the  civilization 
of  the  world?  Is  there  any  man  wise  enough  to  fortell  it?  Can  he  do  better  than  the 
naturalist?    Can  he  classify  the  fauna  and  the  ferna  of  an  unknown  world? 

Gentlemen,  I  have  not  undertaken  to  question  the  fact  that  the  power  of  controlling 
these  great  instrumentalities  should  exist  in  the  State.  I  am  an  adherent  of  that  view. 
I  believe  it  is  necessary  in  the  interest  of  the  people  that  that  power  should  exist.  I 
think  it  should  be  sparingly  exercised,  and  exercised  only  when  the  plain  necessity 
for  it  has  arisen. 

Let  me  ask  you  to  consider  with  me  for  one  moment  whether  that  condition  has 
arisen  in  the  State  of  Virginia.   I  have  heard  one  of  the  members  of  this  Convention 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


2413 


admit  that  it  was  a  reasonable  question  to  ask  whether  such  a  condition  as  this  has 
arisen.  I  have  been  listening  throughout  this  debate  to  hear  an  answer  to  that  ques.- 
tion.  I  have  heard  gentlement  arise  upon  this  floor  and  attempt  to  give  the  answer. 
I  have  heard  nothing  which  seems  to  me  to  be  a  satisfactory  reply.  I  have  heard  him 
utter  the  suspicion  upon  arise  here  and  arraign  the  fertilizer  rates  existing  in  Virginia, 
as  they  existed  prior  to  last  October,  and  within  distances  not  exceeding  thirty  miles. 
I  have  heard  him  admit  that  his  criticism  failed  after  the  distance  of  thirty  miles  was 
passed;  and  I  have  heard  him  admit  that  now,  under  the  existing  conditions,  his  criti- 
cism even  within  thirty  miles  no  longer  applied.  I  have  heard  him  utter  the  suspicion 
upon  this  floor  that  the  change  in  rates  within  thirty  miles  was  made  because  of  the 
assembling  of  this  Convention.  But  I  have  heard  no  proof  offered  to  support  the  sus- 
picion, and  I  am  informed  by  a  gentleman,  who  has  control  of  the  matter  of  rates, 
that  the  assembling  of  this  Convention  had  nothing  whatever  to  do  with  the  change. 

Now,  ISlr.  Chairman,  grant  it  all;  grant  that  the  discrimination  within  thirty  miles 
does  exist,  or  rather  that  it  did  exist  prior  to  last  October;  grant  that  a  change  was 
made  in  the  fertilizer  rates  of  the  State  because  of  the  assembling  of  this  Convention. 
Granting  all  these  things,  will  the  considerate  minds  around  me  accept  the  proposition 
that  because  there  is,  or  was,  or  might  be,  some  discrimination  in  fertilizer  rates,  it  is 
sufficient  reason  to  require  this  Convention  to  lay  violent  hands  upon  the  transporta- 
tion interests  of  the  State  and  to  take  from  their  owners  the  absolute  management 
and  control  of  these  great  companies;  and  not  only  to  take  this  control,  :Mr.  Chairman, 
but  to  deal  with  it  in  a  permanent  and  unchangeable  form;  and  if  it  throttles  them,  if 
it  hurts  the  State,  if  it  destroys  her  interests,  still  it  must  be  done  because  there  was, 
prior  to  the  first  daj*  of  last  October,  some  discrimination  within  distances  of  thirty 
miles,  on  the  fertilizer  rates  within  the  State  of  Virginia. 

Without  an3"  proof  that  complaint  had  been  made;  without  any  proof  that  the 
powers  of  the  railroad  commissioner  had  been  invoked  to  deal  with  the  problem;  with- 
out any  proof  that  there  had  been  a  failure  to  change  and  alter  these  conditions;  with 
the  fact  staring  you  in  the  face  that  they  have  been  changed  and  that  complaint 
no  longer  exists — we  are  asked  to  accept  as  the  logical  consequence  of  that  old  con- 
dition that  the  railroad  management  of  this  State  is  inherently  so  bad  that  this  Con- 
vention must  wrest  it  from  its  owners,  must  take  it  and  put  it  into  the  unchangeable 
form  of  constitutional  law,  and  no  longer  permit  the  people  of  Virginia  and  their  rep- 
resentatives to  deal  with  this  great  and  changing  problem. 

I  have  heard  the  same  gentleman  say  that,  while  he  admitted  the  limitations  upon 
this  Convention  restricting  its  powers  to  intra-State  traffic,  that  he  wanted  to  point  out 
to  this  Convention  how  the  commission  of  Georgia  dealt  with  the  interstate  problems. 
He  invited  attention  to  the  fact  that  the  commission  of  Georgia  had  established  cer- 
tain rates  within  that  State  as  just  and  reasonable;  that  there  was  then  complaint  of 
the  interstate  rates  over  which  they  had  no  legal  or  moral  power;  and  that  afterwards, 
when  complaint  was  made  to  them  of  interstate  rates  over  which  they  had  no  power, 
they  called  these  roads  together  and  said  to  them,  "  If  you  do  not  change  your  inter- 
state rates,  we  will  exercise  our  power  and  change  your  rates  within  the  State."  I 
am  sure  my  friend  did  not  realize  the  moral  principle  underlying  that  proposition.  I 
am  sure  he  would  not  appear  upon  this  floor  as  the  advocate  of  a  blaclanailing  propo- 
sition pure  and  simple.  And  I  am  sure  when  he  sees  the  essence  of  it,  he  would  not 
for  one  moment  contend  that  a  State  commission,  having  no  jurisdiction  over  interstate 
rates,  should  threaten  one  of  these  transportation  companies,  or  all  of  them,  with  deal- 
ing differently  with  their  internal  rates  from  the  wa3^  they  had  already  dealt  with  them, 
as  a  method  of  maldng  the  companies  give  up  something  that  this  commission  had  no 
right  whatever  to  exact. 

If  there  is  any  feature  of  blackmail  lacking  from  that  proposition,  I  should  like 
t(.)  Imow  what  it  is. 

Then,  I  have  heard  as  the  only  other  effort  to  bolster  up  the  proposition  that  the 


2414 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYENTION  OF  VIRGINIA. 


railroads  required  this  drastic  treatment,  the  argument  of  the  gentleman  from  Danville 
(Mr  Withers).  I  shall  not  attempt  to  follow  him  in  the  argument  in  the  Danville  case. 
I  invite  the  attention  of  this  body,  however,  to  the  position  in  which  that  argument 
stands  here  before  you.  A  case  has  been  brought  in  here  and  argued  only  as  to  the 
one  side  of  it,  which  is  still  pending  and  is  as  yet  undetermined  in  the  courts  of  your 
country.  The  case  has  been  decided  only  by  the  Interstate  Commerce  Commission,  and 
because  a  railroad  company  would  not  accept  that  decision  as  final  and  conclusive,  but 
as  the  laws  of  the  country  permit,  asserts,  their  right  to  question  the  soundness  of  this 
decision,  and  to  go  or  be  carried  to  the  tribunal  which  the  laws  of  our  country  estab- 
lish for  them  to  go  to,  or  be  carried  in,  we  are  told  in  the  calm  s.pirit  of  statesman- 
ship that  presides  over  the  determination  of  this  question  that  the  fact  that  that  com- 
pany has  gone  into  the  courts,  where  the  law  says  they  may  go,  is  flipping  its  fingers 
in  the  face  of  the  authorities  and  defying  the  people. 

Now,  I  am  told,  Mr.  Chairman,  that  this  appeal  is  a  substantial  appeal.  In  fact, 
it  is  no  appeal  at  all.  It  is  a  case  instituted  in  the  United  States  Circuit  Court  at  Har- 
risonburg, Va.,  by  the  Interstate  Commerce  Commission  itself  against  this  railroad 
company,  for  the  purpose  of  enforcing  the  decision  of  the  Interstate  Commerce  Com- 
mission. It  is  there  pending  without  ever  having  been  heard;  it  is  there  pending  to 
decide  questions  which  have  been  brought  into  debate  upon  this  floor.  And  because 
this  railroad  company  has  questioned  the  soundness  of  that  decision  of  the  Interstate 
Commerce  Commission,  and  has  permitted  itself  to  be  carried  into  court  to  have  the 
matter  investigated  there,  we  are  told  it  is  flipping  its  finger  in  the  face  of  the  people 
of  the  State;  that  it  is  acting  in  a  way  that  calls  for  the  intervention  of  this  Convention, 
and  that  the  Convention  should  take  the  case  up  and  try  it  on  a  day  or  two  days'  debate 
and  settle  it  in  constitutional  form,  giving  to  the  decision  of  the  Interstate  Commerce 
Commission,  not  yet  endorsed  by  the  courts,  and  to  the  views  of  the  dissatisfied  people 
of  one  of  the  cities  of  this  State,  the  force  of  constitutional  law. 

Let  me  ask  you  this  question,  gentlemen.  Suppose  that  court — as  I  am  told  this 
company  expects  it  to  do — decides  in  this  case  of  the  city  of  Danville  that  the  decision 
of  the  Interstate  Commerce  Commission  is  erroneous.  Suppose  it  decides  that  the  rail- 
road company  has  been  in  the  right  from  the  beginning.  And  suppose  meanwhile  this 
Convention  has  accepted  the  argument  made  by  the  gentleman  from  Danville,  and  has 
considered  that  argument  as  sufficient  ground  for  placing  this  matter  in  the  Consti- 
tution of  the  State  of  Virginia.  Then,  in  what  sort  of  a  position  will  the  calmness, 
the  deliberation  and  the  statesmanship  of  this  body  be? 

Now,  as  I  have  said,  I  shall  not  attempt  to  argue  that  case.  I  shall  attempt  to  give 
you  merely  an  outline  of  the  question  that  is  involved,  and  we  will  see  whether  it  is 
such  a  one-sided  question. 

You  gentlemen  have  been  told  that  the  rates  into  Lynchburg,  Va.,  on  traffic  from 
the  East  and  from  the  West  are  established  by  the  Chesapeake  and  Ohio  trunk  line. 
You  have  been  told  here  that  nothing  that  the  Southern  Railway  has  done  or  can  do 
can  affect  those  rates;  that  these  rates  will  stand  even  if  the  Southern  railway  were 
to  withdraw  itself  from  that  traffic;  that  the  Lynchburg  merchants  would  get  their  low 
rates  by  virtue  of  another  line  of  transportation,  and  that  there  is  nothing  that  can 
be  done  by  the  Southern  railway  to  alter  or  affect  them  in  any  way.  In  other  words, 
if  it  were  to  increase  its  Lynchburg  ratesi,  the  result  would  not  be  that  the  Lynchburg 
merchants  would  be  deprived  of  their  rates;  it  would  simply  mean  that  the  Southern 
railway  would  go  out  of  the  Lynchburg  business.  How  would  that  affect  the  city  of 
Danville?  How  would  that  advance  any  one  of  its  interests?  It  would  still  have  the 
rates  it  now  hasi,  and  of  which  it  makes  complaint  only  because  the  Southern  railway 
hauls  the  freight  through  Danville  to  Lynchburg  at  a  lower  rate.  The  freight  to  Lynch- 
burg would  then  come  by  the  Chesapeake  and  Ohio  and  the  Norfolk  and  Western  at 
the  same  rate  at  which  it  now  comes. 

Now,  let  me  ask  you  this  question?    Taking  as  a  basis  the  Lynchburg  rate,  how 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.   ,    *  2415 

is  the  Danville  rate  made?  The  Danville  rate  is  made  by  adding  to  the  Lynchburg  rate 
the  local  rate  from  Lynchburg  to  Danville.  What  is  the  logical  consequence  of  that? 
As  the  distance  from  Lj'nchburg  increases,  going  south,  the  cities  south  of  Danville 
have  a  higher  rate  than  Danville  has;  and  if  Danville  has  this  cause  of  complaint,  then 
the  other  cities  south  of  Danville  and  west  of  it  have  the  same,  and  a  greater,  cause 
of  complaint. 

I  vill  now  ask  your  attention  for  a  m^oment — and  for  a  moment  only — while  I 
read  to  you  some  of  the  comparative  rates  for  these  various  cities: 

The  city  of  Danville  has  a  distance  from  Cincinnati  of  676  m^iles,  and  from  Louis- 
ville oi  656  miles. 

I  read  only  from  one  of  the  classification  classes,  so  as  not  to  VN-eary  the  commit- 
tee, but  the  same  facts  apply  to  all  the  classes,  so  far  as  I  have  been  able  to  ascertain. 

Now,  for  the  the  distance  of  676  miles  to  Danville  from  Cincinnati,  the  rate  on  arti- 
cles of  the  first-class  is  68  cents  per  hundred  pounds. 

Take  the  city  of  Atlanta,  which  is  distant  from  Cincinnati  474  miles,  one-third  less 
than  to  Danville,  and  on  that  same  class  the  rate  is  $1.07  as  against  68  cents  to  Danville. 

Take  Chattanooga,  Tennessee,  distant  from  Cincinnati  about  336  miles,  or  about 
one-half  the  distance  to  Danville.    Its  rate  is  76  cents  as  against  68  cents  to  Danville. 

Take  the  city  of  Knoxville,  Tennessee,  a  distance  from  Cincinnati  of  292  miles  as 
against  nearly  700  miles  to  Danville,  and  it  has  a  rate  of  76  cents  as  against  Danville's 
6S  cents. 

Take  the  city  of  Macon,  Georgia,  a  distance  of  561  miles  from  Cincinnati,  as  against 
nearly  700  miles  from  Danville,  and  its  rate  is  SI. 07  as  against  68  cents  to  Danville. 

Take  the  city  of  Charleston,  South  Carolina,  a  distance  of  714  miles,  as  against 
676  miles  to  Danville,  and  the  rate  is  95  cents  to  Charleston  as  against  68  cents  to 
Danville. 

Take  the  city  of  Savannah,  Georgia,  a  distance  of  752  miles,  as  against  67G  miles 
to  Danville,  and  the  rate  is  95  cents  as  against  68  cents  to  Danville. 

And  so  I  might  go  on.  I  merely  present  these  facts  to  show  you  that  this  is  a  ques- 
tion within  the  region  of  legitimate  debate.  I  am  not  concerned,  for  the  purposes  of 
my  argument,  as  to  how  it  should  be  determined.  I  am  not  concerned,  for  the  purposes 
of  my  argument,  as  to  whether  Danville  is  right  or  wrong.  But  there  is  no  man  who 
can  deny  that  it  is  a  question  within  the  region  of  legitimate  debate.  There  is  no  man 
who  can  deny  that  that  case  is  now  pending  in  the  courts,  and  there  is  no  man  who 
can  deny  that  it  is  there  pending  under  the  authorit}'  of  the  laws  of  this  country. 

If  it  is  then  within  the  region  of  legitimate  debate;  if  it  is  a  matter  that  may  be 
decided  one  way  or  the  other,  then,  in  the  name  of  all  that  is  calm  and  deliberate  and 
statesmanlike,  tell  me  how  it  should  have  any  influence  upon  the  action  of  a  Constitu- 
tional Convention  in  determining  its  permanent  law. 

Now,  gentlemen,  I  have  nearly  finished.  I  wish,  however,  to  call  your  attention  to 
the  fact  that  amid  the  dangers  of  making  a  Constitution  in  such  manner  as  is  here 
proposed  is  the  danger,  not  only  as  regards  the  matter  of  policy,  but  in  addition,  as 
regards  the  questions  of  law.    There  may  be  some  uncertainty,  even  in  that  respect. 

I  take  it  for  granted  that  not  even  the  draftsman  of  the  bill  himself,  will  attempt 
to  sustain  the  constitutionality  of  the  long  and  short  haul  clause  which  is  put  in  here. 
If  he  will,  I  should  like  to  have  him  say  so  now,  because  it  will  shorten  my  argument 
if  he  states  that  he  does  not  attempt  to  sustain  it. 

Mr.  Braxton:  If  the  gentleman  refers  to  the  clause  which  says  whether  the  long 
haul  is  in  the  State  or  out  of  it,  I  agree  with  him.  The  supreme  Court  has  rendered  a 
decision  since  that  clause  was  written  in  there,  in  which  by  a  divided  court  it  is  held 
that  both  the  long  and  short  hauls  must  be  entirely  within  the  State;  and  when  we  get 
to  that  provision  we  propose  to  have  those  words  stricken  out.  Is  that  what  you 
refer  to? 

Mr.  Thom:    That  is  what  I  refer  to,  and  that  finishes  me  with  the  illustration  I 


2-J-16  DEBATES  OF  THE  CO^fSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

want,  that  here  is  a  provision  brought  before  this  Convention  after  seven  months  incu- 
bation, sound  enough  as  these  gentlemen  say,  to  be  put  into  the  organic  law  of  this 
Commonwealth,  that,  while  they  were  making  it,  has  been  declared  unconstitutional 
by  the  highest  court  in  this  land.  In  other  words,  there  is  such  uncertainty  in  these 
propositions  not  only  as  to  matters  of  policy,  but  as  to  matters  of  law,  that  before  the 
ink  gets  dry  upon  a  proposition  which  you  are  asked  to  put  into  permanent  form,  it  is 
wiped  off  the  face  of  the  earth  by  the  decision  of  the  highest  court  in  the  country. 

Now,  gentlemen,  does  that  illustrate  the  prudence  or  the  imprudence  of  such  legis- 
lation in  the  Constitution?  I  am  told  m.ore  than  that  by  the  chairman  of  the  committee 
upon  this  floor.  I  am  told  that  he  cannot  remember,  but  that  there  were  five  or  s.ix 
drafts  of  this  very  proposition  put  by  him  before  his  committee,  tentatively  he  tells  us. 
Why  tentatively?  Why  not  finally?  Why  should  it  be  necessary  to  deal  with  a  great 
fundamental  question  like  this  where  the  principles  must  be  tentative  and  run  through 
five  different  drafts,  instead  of  being  readily  put  into  final  and  permanent  form. 

It  was  tentative  because  in  the  nature  of  things  it  ought  not  to  be  final.  It  was 
tentative  because  these  gentlemen  three  months  ago  did  not  have  the  wisdom  to  say 
what  should  be  final. 

Suppose  that  to-day,  when  the  spirit  of  criticism  is  dominant  in  this  Convention, 
suppose  that  now  we  are  unable,  with  our  short  sight,  to  point  out  any  individual 
defects  in  this  constitutional  article.  Suppose  we  all  rise  up  here  now,  and  say  "This 
is  the  final  triumph  of  human  wisdom."  Is  there,  in  that  event,  any  considerate  mind 
in  this  Convention  that  will  be  able  to  assure  me  that,  with  three  months  of  operation, 
difliculties  which  we  never  anticipated  will  not  appear,  and  defects  which  we  cannot 
foresee  will  not  come  up  and  curse  us  in  the  practical  operation  of  this  great  organic 
law. 

Gentlemen,  I  assume  for  myself  no  greater  wisdom  than  is  possessed  by  these  gen- 
tlemen of  the  committee.  I  find  that  for  seven  months  they  have  been  uncertain  as  to 
the  solution  of  this  problem.  I  find  that  they  have  made  at  least  five  tentative  efforts 
to  solve  it.  I  find  that  on  this  floor  one  proposition  has  to  be  abandoned  as  uncon- 
stitutional. I  find  that  there  is  now  no  agreement  upon  this  floor  as  to  the  wisdom 
of  many  of  the  suggested  provisions  and  great  divergence  of  opinion  as  to  the  wisdom 
of  any  such  provision  at  all.  It  is  certain  that  the  condition  of  change  and  uncertainty 
which  has  marked  the  deliberations  of  this  committee  will  not  hereafter  be  found  to 
be  inherently  incident  to  the  unknown  and  unknowable  form  of  the  problem  and  that 
disappointment  and  disaster  will  follow  the  adoption  of  this  article  as  the  necessary 
and  inevitable  consequences  of  the  practical  working  of  this  untried  experiment? 

Gentlemen,  I  adjure  you  to  pause  and  think  upon  what  you  are  doing,  as  calm- 
mJnded,  deliberate,  thinking  statesmen.  I  adjure  you  to  remember  the  function  with 
which  you  have  been  clothed  by  your  constituents.  I  adjure  you  to  remember  that 
you  are  here  to  put  into  constitutional  form  great  principles  of  government  about  which 
there  can  be  no  legislative  mistake.  Do  not  be  guilty  of  the  moral  usurpation  of  taking 
the  very  vitals  of  your  people  and  dealing  with  them  in  the  crude  and  insufficient 
condition  of  your  experience  on  this  great  subject.  I  say  it  is  moral  usurpation  to 
attempt  to  solve  this  problem  in  constitutional  form.  I  say  that  we  were  not  sent 
here  for  the  purpose  of  invading  this  great  and  important  domain  and  of  depriving  the 
people  themselves  of  the  power  to  adjust  their  conditions  to  the  changing  necessities 
of  their  social  and  commercial  life.  When  we  attempt  to  do  that — when  we  attempt 
to  take  up  this  matter  upon  which  there  is  this  great  divergence  of  opinion  as  to  what 
is  the  wisest  course  to  pursue — we  are  guilty,  gentlemen,  as  against  our  people,  at  least 
of  a  piece  of  moral  usurpation. 

One  more  idea,  and  I  have  done.  In  my  opinion  this  legislation  is  against  the 
interests  of  the  people  of  Virginia.  I  fear  it  is  conceived  in  a  spirit  of  hostility  to 
companies  which  one  gentleman  upon  this  floor  has  denominated  as  the  owners  of 
one-third  of  the  property  in  the  State.    I  appeal  first,  to  the  utterances  of  the  advo- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


cates  of  this  measure  upon  this  floor  to  substantiate  my  proposition  as  to  this  hostility. 
T  repeat  again  what  fell  from  the  lips  of  my  friend  from  Northampton,  when  he  declared 
that  it  is  a  part  of  the  war  of  capital  against  the  people.  I  appeal  to  his  denunciation 
of  these  great  instrumentalities,  when  he  draws  a  similitude  between  them  and  highway 
robbers.  I  appeal  to  the  denunciation  of  my  friend  from  Danville,  when  he  rose  and 
denounced  upon  the  floor  of  a  constitutional  convention  these  instrumentalities  as 
guilty  of  high  crimes  and  misdemeanors. 

I  appeal  to  his  further  denunciation  of  the  great  power  of  capital,  when  he  says 
that  every  eagle  upon  every  dollar  ought  to  be  a  vulture,  and  I  ask  you  gentlemen  to 
consider  this — you  men  who  are  young,  you  men  who  have  destinies  before  you,  you 
men  who  have  sons  whom  you  want  to  live  within  your  midst,  you  men  who  are  hopeful 
for  the  future,  and  of  the  prosperity  of  3'our  State — I  ask  you  if  you  are  willing  to 
have  it  go  out  to  the  mighty  world  that  that  is  the  spirit  against  capital  that  animates 
the  people  of  Virginia? 

But  we  are  not  confined  to  the  utterances  of  these  gentlemen.  I  take  the  article 
itself.  I  find  written  upon  its  face  a  declaration  of  hostility,  such  as  it  is  impossible 
to  controvert  or  deny.  V^Tiat  is  it?  In  the  first  place  there  is  the  proposition  that  the 
State  of  Virginia  must  rise  here  in  its  might  and  take  from  the  hands  of  these  people 
who  ov>m  these  roads  their  control,  not  only  in  the  matter  of  rates,  but  in  the  matter 
of  facilities,  and  everj^thing  that  will  make  or  mar  the  future  of  their  properties.  We 
find  in  addition  to  that,  that  these  matters  are  to  be  determined  by  a  commission 
which  is  at  first  made  the  prosecuting  officer  before  it  assumes  the  robes  of  the  Judge. 
We  find  that  the  article  also  contains  the  proposition  that  there  is  to  be  a  different 
rule  of  liability  upon  the  corporations  of  the  State  from  that  applying  to  the  individ- 
uals; and  we  find  in  addition  to  that,  that  after  this  commission  controls  the  rate, 
after  it  has  said  how  much  these  people  shall  charge,  and  what  trains  shall  be  run 
and  on  what  schedules,  it  is  proposed  to  further  strike  do^Ti  the  values  of  these  prop- 
erties by  providing  that  anj'body  in  the  State  of  Virginia  may  run  a  road  exactly  parallel 
to  the  existing  roads,  and  within  touch  of  their  right  of  way. 

Now,  that  is  the  article.  That  is  the  proposition  which  you  are  asked  to  endorse. 
Will  that  be  taken  by  any  sensible  man  as  an  act  of  friendship,  or  as  an  act  of  hos- 
tility, to  the  owners  of  these  properties?  Who  are  the  owners?  Who  are  the  men 
who  own  these  properties?  Generally  and  roughly  speaking,  they  are  the  men  who 
control  the  capital  that  is  to  come  or  refuse  to  come  into  the  State.  They  are  the 
men  that  are  to  sslj  whether  or  not  investments  of  that  capital  shall  be  made  in  the 
development  of  the  resources  of  your  State.  They  are  the  men  who  control  the  tide 
of  influence  which  is  to  make  or  mar  the  destinies  of  your  people  from  a  commercial 
standpoint.  Will  these  men  take  these  utterances  upon  this  floor  kindly?  Will  they 
take  these  denunciations  of  them  in  this  bill;  will  they  take  these  cruel  words  and 
destructive  conditions  as  a  declaration  of  friendship  or  of  hostility  to  their  interests? 
I  ask  you,  gentlemen,  who  are  interested  in  the  destinies  of  your  State,  will  these 
men  take  that  as  friendly  or  unfriendly?  Will  they  regard  themselves  as  held  in 
friendly  or  unfriendly  regard  in  the  minds  of  the  people  of  Virginia?  When  a  consti- 
tutional convention,  representing  the  highest  wisdom,  the  best,  the  calmest  statesman- 
ship of  the  State,  declares  it  will  take  from  these  men  the  absolute  management  of 
their  own  property,  and  that  anybody  who  comes  within  the  influence  of  the  State's 
sentiment  must  be  prepared  to  be  treated  in  the  same  way,  will  it  be  any  encourage- 
ment for  them  to  come  and  invest  in  the  resources  of  the  State  of  Virginia? 

Some  of  us  are  engaged  in  an  effort  to  increase  your  taxable  values.  Some  of  us 
live  in  communities  where  development  is  essential  to  the  prosperity  and  happiness 
of  our  people.  Some  of  us — if  I  may  be  allowed  to  make  a  personal  allusion— have 
already  increased  by  our  own  efforts  the  taxable  values  of  the  State  of  Virginia  from 
one  to  four  millions  of  dollars. 

If  you  take  this  action  which  you  are  asked  to  take  will  you  be  strengthening  our 


2418  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

hands?  Rather  will  you  not  be  crushing  us  with  a  mighty  death  when  you  proclaim 
to  the  men  to  whom  we  have  to  go  to  lay  our  coal  fields,  our  agricultural  interests, 
our  fields,  our  ports,  our  cities  and  our  forests  before  them  as  investments  or  develop- 
ment? Are  you  helping  of  hurting  us  in  our  effort  to  bring  here  the  forces  which  are 
to  give  employment  to  our  "people  and  bring  prosperity  to  our  State? 

Gentlemen  you  heard  from  this  forum  on  the  first  day  of  this  current  year,  uttered 
by  the  man  who  now  sits  as  governor  of  your  State,  with  the  solemnity  of  an  oath 
trembling  on  his  lips,  with  his  heart  pledged  to  the  prosperity  of  his  people,  the  fact 
that  thirty-eight  per  cent,  of  Virginia-born  people  are  now  living  in  other  States.  Has 
that  fact  no  force  in  the  minds  of  this  Convention?  Is  that  no  indication  of  the  fact 
that  our  State  does  not  present  such  overwhelming  attractions  to  our  young  men  as 
to  be  able  to  prevail  with  tliem  over  the  attractions  of  other  States?  More  than  one- 
third  of  all  your  people  have  even  sought  homes  in  other  places;  even  now  they  are 
seeking  opportunities  which  you  do  not  offer  them.  Will  you  increase  that  centrifugal 
force  in  the  future?  Will  you  create  conditions  by  which  the  aspirations  of  our  youth, 
the  power  and  the  hope  of  your  young  men,  will  have  to  find  in  other  fields  in  which 
to  exercise  their  talents,  and  to  make  for  themselves  names  and  wealth  and  prosperity? 

Gentlemen,  it  does  not  do  to  say  that  these  conditions  have  not  existed  in  other 
States.  It  will  not  do  to  point  to  prosperity  in  some  other  community.  It  will  not  do 
to  call  attention  to  Georgia  or  to  Texas,  because  every  thoughtful  man  must  realize 
that  the  conditions  in  those  States  are  different  from  the  conditions  existing  in  the 
State  of  Virginia. 

As  I  say,  the  condition  of  our  resources  is  not  such  as  to  have  prevented  hereto- 
fore 38  per  cent,  of  our  population  from  leaving  the  home  of  their  birth.  The  attrac- 
tions here  are  not  so  great  that  we  can  even  now  keep  at  home  our  young  men,  but 
•we  have  sent  them  abroad  to  make  the  fame  and  to  guide  the  destinies  of  other 
States  of  this  Union.  Will  you  be  adding  to  the  centripetal  force  of  your  people  by 
erecting  another  barrier  in  the  way  of  the  inflow  of  capital?  I  have  often  thought 
that  all  this  contention  is  but  the  outgrowth  of  a  weak,  old  and  effete  civilization.  Is 
that  the  kind  of  civilization  upon  v/hich  the  prosperity,  hope  and  happiness  of  our 
people  must  depend  in  the  future?  I  have  thought  that  it  is  the  echo  of  that  terrible 
struggle  in  which  the  greatness  of  Virginia  went  down  in  war  amid  the  privation  and 
distress  of  our  people.  Yet  here  it  is  proposed  to  erect  this  barrier  of  criticism,  this 
feeling  of  hostility  towards  us  of  all  the  great  forces  of  this  world  that  may  make  for 
our  renewed  opportunity.  Gentlemen,  we  men  of  this  Convention  must  stand  for  the 
future  prosperity  of  our  people.  \ve  must  not  let  that  past,  great  and  glorious  as  it 
was,  which  should  be  to  us  only  a  blessing,  rise  up  and  force  us  into  mistakes  as 
to  our  future. 

Let  us  face  to  the  future.  Let  us  put  our  State  where  she  belongs  in  this  great 
family  of  States.  Let  us  make  the  same  opportunities  for  our  young  men  at  home 
that  they  find  when  they  go  abroad.  Let  us  not  take  from  them  the  hope  that,  amid 
their  own  kin,  and  in  their  own  homes,  and  on  their  own  soil,  they  can  find  the  same 
hope  and  the  same  prosperity,  the  same  opportunity  and  the  same  destiny  that  they 
can  find  among  other  people. 

Gentlemen,  I  feel  that  I  have  already  too  long  trespassed  upon  your  kind  atten- 
tion. I  had  intended  to  show  you  that  in  none  of  the  constitutions  of  other  States,  not 
even  in  the  Constitution  of  Louisiana,  was  it  attempted  to  take  hold  of  the  question 
of  the  facilities  that  are  to  be  granted,  given  and  furnished  by  these  corporations,  that 
in  none  of  the  constitutions  of  other  States  was  it  attempted  to  go  to  the  extent  that  is 
suggested  in  this  proposed  article.  You  will  find  that  in  the  Constitution  of  Louisiana, 
which  is  the  most  radical  of  all  of  these  constitutions,  that,  as  to  the  facilities  fur- 
nished, it  limits  the  power  of  the  commission  to  requiring  switches  at  stations  and  to 
safeguarding  the  safety  of  the  traveling  public.  There  is  no  objection  to  that,  in  its 
proper  place;  but  in  these  other  matters,  in  which  this  proposition  goes  far  beyond  any- 


DEBATES  OF  THE  CONSTITUTIONAL  COXVEXTIOX  OF  VIRGINIA. 


24:19 


thing  that  has  ever  been  attempted,  let  us  pause,  gentlemen,  and  not  put  our  State  in 
the  position  of  the  most  radical,  the  most  intolerant,  and  the  most  pronounced  opposi- 
tion to  the  great  forces  of  modern  civilization  of  any  State  in  this  Union.  (Great  ap- 
plause.) 

Mr.  Wysor:  Mr.  Chairman,  I  do  not  rise  to  express  any  change  of  conviction  on 
the  subject.  No  man  has  been  more  highly  entertained  by  the  able  and  eloquent  argu- 
ment of  the  gentlemen  from  Norfolk  city  than  myself,  but  I  hope  the  Convention  will 
not  doubt  my  veracity  when  I  say  that,  verbatim  et  literatim,  he  has  made  the  same 
speech  which,  in  my  dream,  I  heard  him  make  in  the  basement  of  the  capitol  before 
Judge  Baxter,  and  henceforth  I  will  be  a  believer  in  dreams.  (Laughter.) 

Mr.  Thom:  Mr.  Chairman,  referring  to  this  dream  that  my  friend  had  in  the  base- 
ment of  the  capitol,  I  am  informed  that  it  had  more  foundation  than  the  baseless  fabric 
of  a  dream.  The  name  of  Baxter  sounds  very  much  like  the  name  of  Braxton,  and 
while  my  friend  had  his  eyes  shut  he  evidently  was  alluding  to  the  court  which  my  friend 
Mr.  Braxton  was  holding  in  the  catacombs,  at  which  I  understand  he  was  a  constant 
and  delighted  attendant.  I  am  sure  that  my  friend  is  not  given  to  dreams.  I  am  sure, 
too,  that  he  made  a  great  mistake  the  other  day  when  he  imagined  that  his  own  head 
was  red,  and  he  said  that  all  red-headed  men  must  stand  together.  I  am  sure  the  vision 
he  had  of  the  crowning  of  the  Queen  in  May  next  out  here  on  the  Capitol  square  was 
also  a  great  mistake,  and  I  am  equally  confident  that  he  Vv^ill  find  that,  instead  of  the 
festal  occasion  which  he  pictures  in  such  beautiful  colors  to  you,  gentlemen  of  this 
Convention,  of  the  crowning  of  Virginia,  that  around  his  May-pole  in  the  coming  spring 
there  will  be  dancing  a  bevy  of  sprites  who  will  be  singing,  in  the  place  of  the  corona- 
tion  ceremonies,  a  song  that  will  go  something  like  this: 

There  was  an  old  man  from  Pulaski, 
Who  was  great,  if  anj'body  should  ask  ye, 
He  came  also  from  Giles, 
But  Mr.  Braxton's  sweet  wiles, 
Seduced  that  great  man  from  Pulaski. 

(Laughter  and  applause.) 

Now,  that  very  great  man  from  Pulaski, 
"Who  could  think,  if  anybody  should  ask  ye, 
Stopped  thinking  and  dreamed  dreams, 
To  advance  Braxton's  schemes; 
That  gray-haired  old  man  from  Pulaski. 
(Great  laughter  and  applause.) 

Mr.  Braxton:  Mr.  Chairman,  I  am  glad  to  see  that  my  friend  from  Norfolk  (Mr. 
Thom)  could  find  it  in  his  heart  to  have  a  little  hilarity  and  get  up  a  smile  after  con- 
templating the  terrible  doom  which  seems,  in  his  opinion,  to  be  overhanging  the  State. 

I  must  congratulate  the  committee  upon  the  fact  that  I  am  about  now  to  close  this 
long  debate,  which  has  held  them  here  nearly  two  weeks.  I  must  ask  their  sympathy, 
however,  for  me  that,  owing  not  only  to  my  natural  inability  but  to  the  really  enfeebled 
condition,  physically,  in  which  I  find  myself,  my  efforts  in  discussing  this  great  question 
are  to  be  brought  into  such  strong  contrast  with  the  speech  of  the  great  and  eloquent 
orator  who  has  just  preceded  me. 

Mr.  Chairman,  my  friend  started  out  by  promising  us,  if  I  understood  him  correctly, 
that  he  would  give  a  calm  and  unimpassioned  review  of  the  principles  involved  in  the 
measures  which  w^e  have  now  under  consideration,  but  I  think  he  so  far  strayed  away 
from  that  that  he  delivered  to  us  one  of  the  most  impassioned  addresses,  dealing  only 
in  brilliant  generalities  and  sweeping  the  cobwebs  from  the  sky,  that  I  have  ever  heard. 
The  sum  and  substance  of  what  my  friend  says  to  us  is  that,  inasmuch  as  it  is  possible 
that  we  might  make  a  mistake,  inasmuch  as  it  is  a  fact  that  the  politics  of  other  govern- 
ments and  other  legislation,  although  fundamental  and  administrative,  have  from  time 


2420  DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTIOX  OF  VIRGINIA. 

to  time  changed,  inasmuch  as  it  is  a  fact  that  the  conditions  in  this  country  which  now 
confront  us  may,  in  the  course  of  time,  change,  therefore  we  should  not  merely  recog- 
nize the  danger  and  proceed  with  care  and  caution,  hut  that  we  should  not  do  anything 
whatever  with  reference  to  the  railroad  companies  and  their  interests. 

If  my  friend  will  carry  out  to  its  logical  conclusion  the  argument  which  he  makes, 
T  submit,  sir,  it  would  he  the  height  of  folly  to  make  a  Constitution  at  all  and  upon  any 
subject  whatsoever.  We  should  say  nothing  about  the  Governor.  Why?  Because  the 
experience  of  other  States  has  shown  that  their  Governors  may  be  elected  different 
from  the  way  in  which  our  Governor  is  elected.  "At  one  time  the  Governor  was 
elected  by  the  Legislature.  Therefore  pause  and  consider  that  possibly  you  are  doing 
a  great  evil  when  you  say  he  shall  be  elected  by  the  people,  because  the  time  may  come 
w^hen  he  may  not  be  elected  by  the  people;  "  and  so  with  the  Legislature,  and  so  with 
the  judiciary,  and  so  with  the  subject  of  taxation,  and  so  with  the  subject  of  education, 
and  every  subject  of  which  we  treat. 

My  friend  will  not  go  that  far,  but  he  will  say,  "  No ;  those  are  things  for  ordinary 
men  to  deal  with.  Those  are  things  about  v/hich  we  can  and  ought  to  legislate.  Those 
are  things  which  are  of  the  earth,  earthly;  but  when  you  come  to  invade  that  holy 
sanctuary  where  sit  enshrined  the  mighty  railroad  kings  of  this  land,  speak  low,  my 
friends,  put  off  your  shoes  from  off  your  feet,  for  the  very  ground  upon  which  you  stand 
is  holy,  and  you  should  not  touch  this  celestial  thing."  Leave  it  all  to  them,  these  mighty 
guardians  of  the  people's  lives,  their  liberties,  their  property  and  their  government. 
Legislate  for  ordinary  men  legislate  for  ordinary  business  and  ordinary  property,  but  do 
not  dare  to  put  any  restricting  hands  upon  these  people,  these  mighty  Caesars  who  have 
lived  upon  some  peculiar  flesh  that  has  made  them  so  great  that  they  have  got  beyond 
the  control  of  government  and  of  law.  Bow  down  before  these  mighty  mammon.  Hum- 
ble yourself  in  the  dust  and  say,  as  used  to  be  said  by  the  kings  of  old.  "  The  king 
can  do  no  wrong.  We  will  take  the  crumbs  which  you  are  pleased  to  let  fall  from 
your  table  and  be  thankful.'  We  will  see  that  no  law  shall  reach  you.  We  will  entrust 
you  with  absolute  power  and  control  to  tax  us  as  long  as  you  think  it  proper  to  lay  the 
burden  upon  our  backs.  We  will  put  into  your  uncontrolled  hands  the  very  powers 
that  make  my  friend  tremble  when  he  thinks  of  putting  them  in  the  hands  of  govern- 
m.ent,  and  he  will  say  to  the  people  that  as  to  these  great  men  there  shall  be  no  law. 
We  will  throw  down  the  gates,  we  will  cry  havoc  and  let  slip  these  dogs  of  war  upon  you, 
to  prey  at  their  will  and  at  their  pleasure. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  hate  to  approach  a  subject  of  this 
sort  under  any  mental  excitement  or  agitation,  but  I  cannot  but  feel  indignant  when  I 
hear  distinguished  and  eloquent  gentlemen  upon  the  floor  preaching  such  doctrines  to 
us;  and  if  we  are  to  make  any  sort  of  restraint,  if  we  dare  to  even  say  that  they  shall 
be  subject  to  the  control  of  law,  we  are  said  to  be  hostile  to  them.  It  is  said  we  are 
actuated  by  prejudice,  that  we  are  making  war  on  them.  I  say  gentlemen  of  the  com- 
mittee, that  that  criticism  is  not  deserved,  and  cannot  be  sustained  by  the  facts. 

As  I  stated  the  other  day,  you  might  as  v/ell  say  that  we  are  enemies  of  the  human 
race  because  we  want  to  provide  rules,  regulations  and  laws  for  the  government  and 
control  of  the  people,  and  of  all  of  them.  Mr.  Chairman,  I  think  it  cannot  be  success- 
fully controverted  that  there  should  be  in  no  State,  whatever  the  form  of  government, 
any  individual  or  any  collection  of  individuals  of  any  other  power  that  is  over  and  be- 
yond the  power  and  the  control  of  the  State. 

Mr.  Chairman,  the  right  of  the  State  to  prescribe  and  fix  rates  for  the  railroad  and 
to  prescribe  and  enforce  reasonable  rules  and  regulations  for  the  regulation  and  control 
of  those  roads  in  their  public  duties,  is  a  proposition  which  has  been  thoroughly  elabo- 
rated, and  I  leave  it  to  this  committee  to  say  whether  or  not  there  is  lingering  in  their 
minds  the  shadow  of  any  doubt  as  to  the  right  of  a  State  to  do  that.  If  I  caught  them 
correctly,  I  believe  our  distinguished  friends  who  took  the  other  side  of  this  case  concede 
that  it  is  true  and  that  power  does  reside  in  the  State.    "  But,"  says  my  distinguished 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGINIA. 


2421 


friend,  "  that  power  should  always  be  kept  in  inocuous  desuetude."  It  should  never 
be  exercised  under  the  most  extraordinary  circumstances,  which  my  friend  thinks  do 
not  exist  and  never  have  existed.  I  say,  Mr.  Chairman,  the  time  has  come  and  is  now  at 
hand  when  this  power,  which  was  put  here  for  some  purpose,  must  be  exercised,  not 
ruthlessly,  destructively  or  unwisely,  but  calmly,  prudently  and  considerately,  but  exer- 
cised effectively. 

Why  do  I  say  the  time  has  come  when  that  power  must  be  exercised?  There  are 
a  number  of  reasons.  The  distinguished  railroad  commissioner  of  this  State  has  again 
and  again  called  attention  to  the  necessity  of  having  some  effectual  means  of  exercis- 
ing this  power.  The  people  of  the  State  ,  as  stated  by  my  distinguished  and  dear  friend 
from  the  country  of  Rockbridge  (Mr.  Anderson)  have  on  three  particular  occasions, 
through  their  representative,  attempted  to  enact  legislation  of  that  sort,  and  have  carried 
it  through  the  House  of  Delegates,  which  is  larger  and  more  immediately  in  close  touch 
with  the  people  of  the  country,  and  probably  reflects  their  views  better  than  any  other 
branch  of  the  government;  and  their  efforts  have  been  frustrated.  Nearly  every  board 
of  trade  in  Virginia,  the  only  organized  means  of  public  expression  of  opinion  by  busi- 
ness men,  has,  I  may  say  with  practical  unanimity,  and  without  exception  as  far  as  I 
can  recall  urged  upon  and  besought  this  body  to  enact  legislation  that  would  enable 
this  power  to  be  put  into  effective  operation. 

My  worthy  friend  from  Rockbridge  himself  admits,  to  use  his  own  language,  that 
if  there  was  any  reason  for  such  legislation  as  this  in  1890  it  exists  to-day  a  thousand 
fold  more  than  it  did  then,  because  the  little  protection  the  people  had  then  in  the 
way  of  competition  has  now  passed  away  and  become  like  an  evanescent  dream.  The 
overwhelming  evidence,  which  I  will  not  enter  into  detail  to  repeat  but  which  was  read 
to  you  by  my  friend  from  Halifax  (Mr.  Stebbins),  by  my  friend  from  Russell  (Mr. 
Stuart)  and  my  friend  from  Danville  (Mr.  Withers),  showed  to  you  the  discriminations 
and  the  abuses  of  their  power  by  the  railroad  companies,  which  are  calling  aloud  for 
redress  at  the  hands  of  this  Convention.  Evidence  has  been  before  3'our  committee, 
and  it  is  a  matter  of  notorious  knowledge  amongst  everybody  in  the  State,  that  these 
great  benefactors,  the  railroad  companies,  so  far  from  building  up  the  State  are  here 
like  dogs  in  the  manger  fighting  off  all  others  and  doing  as  much  as  anj'-thing  could 
be  done  to  defeat  and  prevent  the  development  of  the  State  except  so  far  as  they  can 
take  in  and  assimilate  that  development  in  their  own  maws.  I  take  the  Norfolk  and 
Western  Railway  company,  owned  and  controlled  by  the  same  men  who  own  and  con- 
trol a  large  part  of  the  coal  fields  of  West  Virginia,  and  I  ask  any  delegate  from  that 
part  of  the  country  if  it  is  possible  to-day  to  develop,  to  mine  or  to  ship  one  pound  of 
coal  from  there  unless  they  get  it  from  the  owners  of  the  Norfolk  &  Western  Rail- 
road company. 

I  do  not  wish  to  go  too  much  into  detail,  but  I  have  here  as  illustrative  of  the 
methods  which  these  railroad  companies  use  to  build  up  the  waste  places  of  this  State, 
a  letter  from  a  gentleman — I  will  not  read  his  name,  but  I  will  be  very  glad  to  show  it 
to  any  member  of  the  Convention  who  wishes  to  see  it — in  which  he  informs  me  that  he 
and  his  associates,  owning  a  large  and  valuable  tract  of  several  thousand  acres  of 
coal  land  along  the  line  of  the  Norfolk  &  Western  railroad,  communicated  with  the 
manager  of  that  road  and  asked  for  the  same  facilities  that  they  were  giving  to  those 
who  were  mining  coal  on  the  lands  of  the  people  who  own  that  railroad,  no  more 
and  no  less.  WTiat  was  the  reply  of  the  railroad  when  asked  to  furnish  transportation 
facilities,  for  people  who  wished  and  who  were  ready  and  anxious  and  willing  to  develop 
the  country,  who  owned  the  land  and  were  prepared  to  develop  the  mines,  and  all  they 
wanted  was  transportation  facilities?    The  reply  was: 

The  conditions  of  the  coal  market  do  not  at  the  present  time  warrant  this  company 
in  opening  up  any  further  operations,  and  for  the  present,  and  until  such  time  as  the 
demand  for  coal  materially  increases,  and  we  see  our  way  clear  to  add  to  our  equipment 
to  meet  further  demands,  we  are  not  prepared  to  make  an  arrangement  for  further  opera- 


2423 


DEBATES  OF  THE  CONSTITUTIONAL  COXVEXTIOX  OF  TIRGIXIA. 


tions.  At  the  same  time,  it  is  not  possible  for  me  to  make  you  a  positive  statement 
until  I  am  more  fully  advised  as  to  where  the  land  lies  and  where  you  expect  to  find  a 
market,  and  in  what  manner  you  are  anticipating  handling  your  output. 

I  should  like  to  know  what  the  railroad  company  has  to  do  with  those  things. 

I  do  not  desire  to  delay  your  decision  or  action  in  the  matter  v/hatever,  and  I  say 
to  you  frankly  that  under  existing  conditions  it  would  not  be  to  the  interest  of  the  Nor- 
folk &  Western  railroad  to  open  up  the  property  you  refer  to. 

Now,  gentlemen,  I  ask  you  what  condition  of  affairs  we  have  confronting  us;  and 
yet  these  people  come  here  and  tell  you  that  they  must  be  allowed  to  go  Sicot  free  of 
law,  so  that  they  can  develop  the  State.  If,  sir,  you  wanted  to  ship  a  bullock  from 
your  farm  to  the  market,  and  the  railroad  should  tell  you  that,  in  their  opinion,  the 
beef  market  did  not  justify  your  shipping  your  steers,  and  you  would  have  to  wait  until 
such  time  as  they  could  make  it  convenient  to  haul  them  for  you,  what  would  you 
think,  sir?  Their  duty  is  to  haul  the  freight  that  is  given  to  them,  and  what  the 
market  justifies  is  none  of  their  business.  If  these  men  lost  by  their  coal  operations, 
it  was  their  business  and  not  the  business  of  the  railroad;  and  yet  they  come  and  tell 
you  they  are  engaged  in  the  business  of  developing  the  country. 

Developing  it?  Saying  to  that  country  out  there,  "  I  care  not  how  much  mineral 
you  have,  not  one  dollar  of  it  shall  reach  the  market  until  it  pays  toll  into  our  pocket, 
not  for  transporting  it,  but  until  it  has  passed  through  our  hands  and  has  been  squeezed 
as  dry  as  it  can  possibly  be  squeezed.  Not  one  pound  of  coal  shall  be  raised  and 
shipped  except  off  our  land;  and  we  will  not  even  go  to  the  ordinary  and  old  fashio'ned 
method  of  buying  up  the  coal  lands  and  holding  them  and  getting  up  what  they  call 
a  corner,  but  we  will  simply  buy  such  amount  of  them  as  we  wish  to  operate  now  and 
we  will  say  to  the  owners  of  the  residue,  you  hold  them  yourselves  and  you  wait  here 
until  it  suits  us  to  buy  them  and  buy  them  at  the  price  we  choose  to  give  you;  and 
if  you  don't  want  that  price,  you  let  your  mineral  stay  in  the  ground  until  I  and  all 
of  us  are  dead."  And  that,  sir,  they  are  enabled  to  say  because  of  the  franchises*'which 
have  been  given  them  and  in  the  exercise  of  which  they  are  protected  by  the  govern- 
ment that  you  and  I  and  all  of  us  have  established  and  are  being  taxed  to  support 
and  maintain. 

And  yet  those  men  come  here  and  say,  "  Oh,  we  are  such  public  benefactors.  You 
are  indebted  to  us  almost  for  the  very  air  you  breathe.  It  is  through  us  and  through 
us  only  that  your  State  can  be  developed.    Therefore  give  us  an  absolute  free  hand." 

I  go  further.  There  are  certain  large  corporations  in  this  country,  so  large  that 
they  monopolize,  I  will  not  say  many,  but  all  the  necessities  of  life,  and  they  are  enabled 
to  do  so  more  by  their  control  over  the  railroad  facilities  than  in  any  other  manner. 
The  very  backbone  of  the  trust,  as  it  is  called,  is  their  control  over  railroads,  control 
over  rates  and  control  over  transportation  facilities.  For  what  boots  it,  gentlemen 
of  the  committee,  that  the  railroad  company  will  say  "  Our  rate  for  hauling  is  this  or 
that,"  if  they  refuse  to  give  you  the  cars  to  haul  at  that  rate?  How  can  you  men  in  the 
Southwest,  interested  in  the  raising  of  cattle,  compete  upon  the  market  with  the  cattle 
kings  of  Chicago,  who  can  put  their  cattle  in  the  markets  always  cheaper  than  you 
can  put  yours,  and  who,  further  than  that,  can  say  to  you,  "  Even  if  we  stop  at  the  con- 
trolling of  the  rates,  we  are  very  sorry,  Mr.  Jones,  but  the  car  equipment  of  the  com- 
pany is  so  much  taxed  that  we  cannot  furnish  you  cars  to  haul  your  cattle  to  market." 

Mr.  Blair:    Is  it  not  a  fact  that  they  do  compete  with  the  western  markets;  now? 

Mr.  Braxton:    To  what  extent  I  do  not  know,  sir. 

Mr.  Blair:  And  is  it  not  a  fact  that  before  the  railroads  were  built  they  could  not 
compete  at  all,  that  they  did  not  have  any  market  for  their  cattle? 

Mr.  Braxton:  I  do  not  think  that  is  a  fact,  sir.  My  impression  is  that  they  raised 
cattle  there  before  the  railroads  were  there,  just  as  well  as  they  do  now;  and  my  further 
information  is  that  these  people  out  west  can  control  them  and  let  their  cattle  go  on 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXVEXTIOX  OP  VIEGIXIA. 


2123 


the  market  just  to  the  extent  they  desire,  and  control  every  dollar  of  profit  they  make 
out  of  them  as  absolutely  as  if  they  were  their  slaves. 

Is  it  not  a  notorious  fact  that  the  great  Standard  Oil  company  was  built  up  almost 
entirely  by  reason  of  its  control  of  railroad  rates  and  of  railroads,  so  that  no  com- 
petitor could,  by  hook  or  by  crook,  come  upon  the  market  except  to  the  extent  that 
they  chose  to  let  them  come  there?  When  the  market  was  so  big  that  after  they  had 
sold  all  they  had  and  there  was  some  of  it  left,  they  vvould  say  to  their  competitors, 
as  they  do  to-day,  "  You  can  come  in  like  a  poor  jackal  at  the  lion's  feast  and  pick 
up  the  bones  and  get  what  we  choose  to  leave  you." 

I  say,  gentlemen  of  the  committee,  that  it  is  an  unhealthy  state  of  affairs,  that 
is  an  abnormal  condition  of  things;  that  is  a  thing  which  cannot  continue  without  the 
ruin  of  this  country.  That  is  a  thing  which  men"  of  independent  minds,  capable  of 
governing  themselves  have  only  themselves  to  thank  for,  if  they  allow  it  to  continue 
until  they  all  become  economic  slaves  and  bondmen. 

Mr.  Chairman,  they  say  "Do  not  this  thing:  it  will  ruin  the  railroad."  And  in 
order  to  show  that  it  will  ruin  the  railroad,  they  point  you  to  the  Southern  States, 
where  such  commissions  exist,  and  show  you,  as  they  claim — I  do  not  think  they  suc- 
ceeded in  doing  it,  but  taking  them  on  their  ovrn  word — that  the  railroads  thrive 
better  there  and  get  more  money  than  they  do  here. 

If  that  be  true,  vrhy  is  it  the  railroads  are  fighting  it  to  the  extent  they  are?  If 
it  be  true  that  the  railroads  really  in  their  hearts  fear  this  thing,  if  it  be  true  that  they 
do  not  recognize  in  it  legitimate  and  proper  legislation,  if  they  fear  one-half  of  the  evils 
which  have  been  portrayed  here,  is  it  conceivable  that  the  stocks  of  these  roads — 
that  thing  which  trembles  as  delicately  in  the  balance  as  the  scales  of  a  gold  refiner — 
in  view  of  this  discussion,  in  viev/  of  the  possibility  of  the  passing  of  this  fearfully 
drastic  measure,  which  is  to  ruin  them  all,  have  never  dropped  in  the  market  one  shade 
or  shadow  of  an  inch,  but  many  of  them  have  gone  up  in  the  verj^  presence  of  what 
my  friend  calls  this  terrible  economic  test.  Does  it  not  show  they  are  trying  to  scare 
us  with  ghosts  and  goblins?  Does  it  not  show  that  when  they  are  put  to  the  test  you 
will  not  find  one  of  them,  although  he  says  he  thinks  we  are  going  to  ruin  him,  who 
will  sell  his  stock  for  one  fraction  of  a  cent  lower  than  the  market  is  and  has  been  for 
months  and  months  past?  I  say,  gentlemen,  therefore,  let  us  not  be  scared  off  by  these 
things. 

Now,  Mr.  Chairman,  I  shall  try  to  hasten  on.  The  State  has  the  right  and  the 
power  to  regulate  the  public  service  of  these  corporations.  The  time  has  come  when 
that  right  should  be  put  into  effect  and  utilized,  and  the  question  is  how  shall  we  do  so? 
This  power  has  existed  all  along.  There  is  not  a  power — and  I  appeal  to  any  lawyer 
in  this  body  as  to  the  soundness  of  this  proposition — there  is  not  a  single  power  that 
it  is  possible  for  us  to  clothe  this  commission  or  a,iiy  other  body  with  that  does  not  exist 
to-day  in  the  State  somewhere.  We  cannot  create  them;  but  it  exists  without  the  means 
of  exercising  it.  The  State  has  never  yet  provided  efficient  and  proper  instrumental- 
ities and  machinery  for  the  efficient  exercise  of  this  power.  That  has  been  the  great 
need  that  we  have  lacked.  The  Mason  bill,  like  the  report  of  the  minority  of  this 
committee,  was  filled  with  platitudes,  that  the  railroad  companies  must  be  just  and 
reasonable,  that  they  must  not  discriminate,  in  short,  that  they  must  not  do  anything 
wrong;  but  it  was  absolutely  ineffectual  in  providing  any  means  for  carrying  out 
these  announcements. 

Now,  the  question  is  for  us  not  to  create  any  new  power,  not  to  give  the  State 
one  iota  of  control  over  the  railroads  that  it  has  not  to-day,  but  to  provide  suitable 
machinery  and  instrumentalities  whereby  the  State  and  the  government  can  utilize 
the  weapons  it  has.  The  Legislature,  as  has  been  shown  and  pointed  out  in  detail, 
and  as  has  been  conceded  by  my  friends  on  the  other  side,  is  utterly  incapable  of 
making  rates  by  reason  of  the  nature  of  its,  organization.  The  courts,  as  was  shown 
at  length  by  my  distinguished  friend  from  Northampton  (Mr.  Kendall)  are  also  in- 


2'424 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


capable  of  prescribing  rates  and  acting  in  this  matter  of  fixing  rates  in  advance  as 
an  original  proposition.  It  has  been  conceded,  Mr.  Chairman,  by  the  public  generally, 
and,  as  far  as  I  know,  it  is  the  almost  unanimous  consensus  of  opinion  of  all  reflect- 
ing men,  that  the  only  sort  of  instrumentality  which  the  wit  of  man  has  yet  devised 
for  the  effective  prescribing  and  fixing  of  railroad  rates  is  a  railroad  commission  or 
a  corporation  commission  of  some  kind.  The  necessity  for  such  an  arm  of  government 
did  not  exist  in  years  gone  by,  or  you  would  have  found  provision  for  it  in  the  Consti- 
tution of  1776,  just  as  you  found  provision  for  the  courts,  for  the  Legislature,  and  for 
the  Executive. 

If,  then,  Mr.  Chairman,  we  must  have  a  commission  of  some  sort,  two  questions 
present  themselves  to  us:  Shall  that  commission  be  established  by  the  Constitution 
or  by  the  Legislature;  and,  second,  if  it  must  be  established  by  the  Constitution,  which 
one  of  the  two  kinds  of  commissions,  set  forth  in  the  report  of  the  minority  and  the 
report  of  the  majority  of  this  committee,  is  the  one  we  will  accept? 

Mr.  Chairman,  I  will  address  myself  to  this  question:  Shall  the  commission  be 
established  by  the  Constitution  or  by  the  Legislature?  There  are  various  consider- 
ations which  control  us  in  our  decision  that  it  should  be  established  by  the  Consti- 
tution. In  the  first  place,  in  order  to  make  this  commission  efficient,  in  order  that 
it  may  prescribe  and  fix  the  rates  of  railroads,  its  powers^  as  has  been  held  by  the 
United  States  Supreme  Court  very  frequently,  must  be  legislative.  I  concede  that  that 
court  has  held  in  construing  the  laws  of  different  States  establishing  commissions,  that 
the  Legislature  could  confer  this  legislative  power  upon  a  commission;  but  as  far  as 
I  know,  that  power  to  delegate  its  legislative  function  has  never  been  passed  upon  and 
IS  not  a  settled  question  in  this  State,  and  therefore  it  is  possible  that  the  question 
might  arise  as  to  the  power  of  the  Legislature  to  delegate  to  the  full  extent  this 
legislative  power,  just  as  was  done  in  Delaware  on  the  question  of  the  local  option  law. 

Mr.  R.  Walton  Moore:  Has  he  any  doubt  whatever,  as  a  lawyer,  of  the  compe- 
tency of  the  General  Assembly,  if  the  Constitution  authorizes  it  to  do  so,  to  delegate 
full  legislative  and  also  full  judicial  powers  to  a  commission,  in  spite  of  the  fact  that 
there  has  not  been  a  direct  deliverance  on  that  subject  in  Virginia? 

Mr.  Braxton:  Not  the  slightest,  I  think  I  must  have  made  myself  obscure  in  what 
I  stated.  If  the  Constitution  confers  power  to  delegate  this  there  can  be  no  question 
of  their  right  to  do  it.  I  merely  suggest  that  one  of  the  reasons — not  the  only  one, 
but  that  one — and  possibly  the  least  one  of  the  reasons  that  we  should  provide  for 
this  in  the  Constitution  is  to  prevent  the  possibility  of  a  question  being  raised  hereafter 
of  the  right  of  the  Legislature  to  delegate  legislative  power  in  the  absence  of  a  Con- 
stitutional provision  to  that  effect. 

Mr.  R.  Walton  Moore:  Then  the  gentleman  admits  that  we  could  remove  that 
reason  and  that  difficulty,  by  a  line  or  two  in  the  Constitution  authorizing  the  General 
Assembly  to  confer  powers  upon  a  commission? 

Mr.  Braxton:  Yes,  sir;  I  admit  that;  but  I  will  call  my  friend's  attention  to  the 
fact  that  one  swallow  does  not  make  a  summer,  and  I  hope  my  friend  will  not  take 
one  admission  as  a  surrender  of  our  entire  proposition.  If  that  were  all,  I  say  that  is 
true  to  that  extent. 

Furthermore,  gentlemen  of  the  committee — and  I  know  this  is  a  tiresome  and  dry 
subject,  but  I  beg  you  to  bear  with  me,  and  I  will  encourage  you  by  telling  you  this 
is  the  last  speech,  I  think,  you  will  hear  on  this  subject  from  me  or  any  one  else — 
if  we  wish  to  make  this  commission  effective,  we  must  give  it  power  to  enforce  its 
own  rules  and  regulations  under  proper  supervision  and  proper  check,  by  way  of  appeal, 
and  so  on.  We  must  clothe  it  with  judicial  power;  and  I  say  again  that  for  the  same 
reason  I  mentioned  to  my  friend,  it  is  desirable  we  should  give  that  power  in  the 
Constitution,  otherwise  we  may  have  the  same  trouble  that  was  had  in  Illinois,  as  my 
distinguished  friend  knows,  over  the  Torrens  system,  that  it  could  not  be  clothed  with 
judicial  power  in  the  absence  of  a  constitutional  provision. 


DEBATES  OE  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA. 


2425 


In  the  next  place,  I  say  we  should  put  it  in  the  Constitution  because  it  is  one 
of  the  most  important  branches  of  our  government,  if  it  is  to  be  established.  I  say  it  is 
just  as  important  a  thing,  as  far-reaching  in  its  effect,  as  essential  for  the  well  being 
of  the  State,  and  is  therefore  just  as  much  entitled  to  a  provision  in  the  Constitution  as 
many  of  the  things  that  are  in  the  Constitution  of  Virginia. 

Wie  could  have  left  the  establishment  of  an  educational  department,  of  an  agricul- 
tural department,  of  the  creation  of  the  office  of  Secretary  of  the  Commonwealth  and 
of  the  Board  of  Public  Works  and  the  prescribing  of  a  homestead  exemption,  all  to  the 
Legislature;  but  the  men  who  framed  our  former  Constitutions  regarded  them  as  of 
sufficient  importance  to  place  them,  in  the  fundamental  construction  of  our  govern- 
'mejnt;  and  I  say  that  a  corporation  commission,  if  we  are  going  to  make  it  at  all, 
is  just  as  important  as  any  of  those,  and  infinitely  more  important  than  mxany  of  them. 
Which  affects  the  welfare  of  the  people  of  the  State  the  most,  the  establishment  of 
an  efficient  corporation  commission,  or  the  establishment  of  the  office  of  Secretary  of 
the  Commonwealth?  And  yet  the  establishment  of  that  office  w^as  regarded  as  suf- 
ficiently important  to  put  it  in  the  Constitution. 

I  saj',  therefore,  that  the  importance  of  the  subject  entitles  it  to  a  position  in  the 
Constitution.  I  say,  if  w^e  are  to  make  it  a  court,  we  should  provide  for  it  just  like  we 
provide  for  every  other  court  in  the  Constitution,  from  that  of  justice  of  the  peace 
up  to  that  of  the  Supreme  Court  of  the  State.  We  have  to-day  the  justice  of  the 
peace,  the  county  courts,  the  city  courts,  the  circuit  courts  and  the  court  of  appeals, 
all  provided  for  in  the  Constitution;  and  yet  when  we  come  to  establish  a  court  greatlr 
in  dignity,  more  far-reaching  in  its  powers,  more  important  to  the  welfare  of  the  State, 
than  any  of  those  courts,  w^ith  the  sole  exception  of  the  Court  of  Appeals,  we  need  no 
apology  for  establishing  that  also  in  the  Constitution  of  the  State.  I  say  that  the  mere 
establishment  of  this  is,  strictly  speaking,  along  the  closest  and  narrowest  lines  of 
Constitution  making,  absolutely  fundamental.  It  is  a  part  of  the  outline  of  govern- 
ment. We  say  this  government  shall  have  asi  its  principal  officers  the  Governor,  the 
Lieutenant-Governor,  the  Secretary  of  the  Commonwealth,  the  Board  of  Public  Works, 
which  we  have  had,  the  Legislature  and  the  courts,  and  a  corporation  commission 
charged  with  that  most  important,  most  vital  function  of  the  State,  the  control  of  the 
railroads,  whose  power  and  infiuence  is  more  far-reaching  upon  the  people  than  anything 
there.  So  the  establishment  of  it,  if  we  went  no  farther  than  my  disting-uished  friend 
indicates,  to  say  that  there  shall  be  a  commission  and  that  it  shall  have  judicial  and 
legislative  powers,  I  say  that  is  fully  accounted  for  by  reason  of  its  importance  and 
its  nature  and  character  as  an  essential  branch  of  the  government. 

If  we  do  not  put  it  in  the  Constitution  we  will  never  get  an  effective  one.  We 
cannot  get  it  from  the  Legislature ;  and  I  warn  you,  gentlemen  of  the  committee,  against 
the  attempt  to  misconstrue  the  position  which  gentlemen  on  this  floor  take  when  they 
undertake  to  say  that  such  a  thing  cannot  be  effectively  done  in  the  Legislature.  It 
is  no  attack  upon  the  personnel  of  the  Legislature.  I  submit  v^e  have  as  good  a  Legis- 
lature in  Virginia  as  exists  in  any  State.  It  is  the  institution,  it  is  the  way  in  which 
it  is  constructed,  its  methods  of  doing  business,  which  makes  it  a  field  upon  which 
the  people  cannot  meet  the  corporations  in  fair  battle  arrayed,  which  makes  it  a  field 
upon  which  the  railroad  corporation  has  every  advantage  in  preventing  legislation, 
and  the  people  have  none  in  carrying  it  through.  Three  times  have  the  people  en- 
deavored to  get  an  effective  bill  through  the  Legislature,  and  three  times  has  it  gone  down 
in  the  Senate,  and  gone  as  my  friend  from  Rockingham  (Mr.  Keezell)  says,  to  that 
last  cradle  of  death  where  it  is  rocked  to  sleep  forever,  the  Committee  on  Roads. 

There  is  a  fact.  We  have  tried  it  three  times  and  we  have  failed.  The  same 
trouble  exists  in  the  Congress  of  the  United  States,  as  pointed  out  by  the  Interstate 
Commerce  Commission,  that  they  have  again  and  again  attempted  it,  and  there  they  have 
met  their  defeat  and  their  Waterloo  every  time.  Why  is  that?  Why  is  it  we  failed 
three  times?  Why  is  it  they  have  never  responded  to  the  repeated  recommendations 
153— Const.  Deb. 


^'436 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


of  the  Commission?  Wljiy  is  it  when,  as  was  said  by  the  distinguished  gentleman  from 
Rockbridge  (Mr.  Anderson),  to-day  the  necessity  for  this  thing  is  one  thousand  times 
greater  than  it  was  ten  years  ago,  still  we  cannot  get  any  relief?  And  I  ask  this  com- 
mittee if  there  is  anything  in  prospect  that  would  lead  us  to  think  there  is  any  more 
chance  of  getting  an  effective  one  through  it  hereafter  than  there  has  been  heretofore? 

I  will  tell  you  some  of  the  reasons  w^hy  I  think  it  is  more  difficult  to  get  through 
the  Legislature  a  provision  for  an  effective  corporation  commission  than  in  this  body. 
Here  is  one  body  of  one  hundred  men.  It  will  take  fifty  men  out  of  this  body  of  one 
hundred  for  the  railroad  to  prevent  anything  being  done  that  the  rest  of  us  want  done. 
The  Legislature  has  one  hundred  and  forty  men.  Twenty-one  out  of  the  one  hundred 
and  forty  can  absolutely  block  any  legislation  you  want.  So  that,  in  or'der  to  resist  the 
demand  for  legislation  in  this  body,  they  have  to  get  one-half  of  them. 

In  order  to  resist  the  demand  for  legislation  in  the  Legislature,  they  have  to  get 
one-seventh  of  them,  and  therefore  they  are  put  at  over  three  times  the  advantage 
in  the  Legislature  that  they  have  here.  That  is  not  all,  Mr.  Chairman,  I  will  state 
another  reason  why  I  think  it  is  very  much  more  difficult  to  get  this  sort  of  legislation 
in  the  Legislature;  and  mark  you  this  is  utterly  irrespective  of  the  personnel  of  the 
Legislature.  It  is  because  of  its  construction,  of  its  manner  of  work,  and  not 
because  of  anything  else.  When  you  go  to  the  Senate,  every  bill  of  this  sort  is  referred 
to  the  Committee  on  Roads,  consisting  of  fifteen  men.  Eight  men  control  that,  and  up 
to  four  years  ago,  it  would  take  a  vote  of  two-thirds  to  get  it  away  from  them.  The 
result  was  that  out  of  these  140  men,  eight  could  absolutely  block  the  legislation.  To- 
day I  understand  the  rule  has  been  changed  so  that  a  majority  not  of  those  voting  but 
a  majority  of  all  those  elected  to  the  Senate  can  get  it  away  from  the  Committee  on 
Roads.  There  is  another  breastwork  behind  which  the  railroads  not  only  can  fight, 
but  have  fought  and  have  fought  as  successfully  as  ever  men  did  from  an  impregnable 
fortress. 

I  will  give  you  another  reason  why  these  railroads,  very  naturally,  wish  to  take 
this  battleground  from  this  tribunal  into  the  Legislature.  We  are  here  for  an  indefi- 
nite season.  We  are  enlisted  for  the  war.  We  are  here  until  we  have  finished  our 
work,  and  if  you  want  to  discuss  it,  you  can  discuss  it  and  discuss  it  until  doomsday, 
and  when  it  comes  you  will  find  us  here  discussing  it,  too;  but  the  Legislature  has  a 
short  session  of  90  days;  and  all  you  have  to  do  is  to  hold  on  and  fight  for  time  and 
delay,  and  discuss  it  and  discuss  it  and  discuss  it  and  discuss  it  and  wait  until  to- 
morrow and  to-morrow,  and  to-morrow!  And  then  when  the  ninety  days  comes,  you 
have  always  got  the  goal  in  sight,  and  say,  "  If  we  can  hold  on  until  then,  we  have  got 
them." 

You  will  find  that  the  fate  of  similar  measures  has  been  that  when  they  were 
introduced,  there  was  that  same  policy  of  delay  and  wait  and  wait  and  wait,  until  the 
last  moment  and  then  they  offer  something  new,  and  bring  it  in  and  say:  "You  have 
not  had  time  to  consider  it;  it  is  a  new  proposition,  and  you  should  consider  it  still 
further."  The  Legislature  adjourns  and  there  is  the  end  of  it,  and  you  kick  up  your 
heels  for  two  years  more,  and  have  the  fight  all  over  again. 

That  is  another  reason,  gentlemen,  I  say,  why  the  people  look  to  this  body,  that 
is  organized  on  a  different  basis,  and  which  will  say  to  the  railroad  companies,  "We 
will  give  you  all  the  hearing  you  want.  We  will  listen  to  all  your  arguments;  but  you 
must  know  that  you  are  not  going  to  run  us  out  here  by  speaking  against  time.  You 
must  know  that  you  have  got  to  convince  our  minds  and  our  reasons,  and  not  wear  out 
our  bodies." 

Now,  I  say,  Mr.  Chairman,  those  are  some  of  the  reasons,  and  there  are  others. 
Those  are  the  reasons  why  the  hope  of  all  the  people  of  the  Commonwealth  who  want 
economic  reform,  all  those  who  have  still  coursing  in  their  veins  that  old  love  of  liberty 
that  revolts  at  the  idea  of  absolute  power  in  the  hands  of  anybody,  be  he  the  rail- 
road king  or  anybody  else,  those  people  whose  natural  Anglo-Saxon  instinct  teaches 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIPtGIXIA. 


them  to  love  the  rule  of  law  and  not  of  arbitrary-  wilL  are  looking  to  us  for  salvation 
and  for  the  only  hope  they  have  to  get  out  of  the  hands  of  this  utterly  economic  death. 
Those  are  the  people  who  look  to  us  to  change  that  condition  of  affairs  referred  to 
"by  my  eloquent  friend  from  Norfolk  (Mr.  Thorn)  as  the  thing  which  he  wishes  to  per- 
l)etuate,  and  under  which,  as  he  tells  us,  ..thirty-eight  per  cent,  of  the  young  men  of  this 
Commonwealth  have  had  to  flee  from  their  homes  and  go  somewhere  else.  That  is 
the  condition  under  which  we  have  stood  here  and  seen  other  States  north  and  south 
and  west  of  us,  vcith  not  half  of  our  natural  resources,  grow  up  and  hloom  and  blossom 
like  the  rose,  while  we  are  here  withering  and  drying  up  like  a  sandy  desert. 

I  say  the  people  who  want  to  change  that  thing,  the  people  who  do  not  want  this 
aondition  to  remain,  are  looking  to  us  because  they  know  that  here  alone  is  their 
only  chance  for  relief.  They  know  that  if  we  fail  here — and  let  there  be  no  mistake 
about  this  thing — the  battle  is  lost. 

It  is  worse,  gentlemen,  that  we  had  never  tried  this  matter  than,  having  joined 
in  the  fight,  we  should  be  defeated.  Let  this  matter  go  down  here,  let  this  house  turn 
its  back  upon  it,  let  the  members  show  they  have  not  the  courage  of  their  convictions 
to  write  down  a  law  that  they  think  Is  right,  and  the  chance  of  getting  it  through  the 
Legislature,  if  slim  before,  will  have  vanished  from  the  face  of  the  earth.  There  you 
will  hear  eloquent  men  talking  about  the  great  wisdom  of  the  great  Constitutional  Con- 
vention of  Virginia,  that  in  its  wisdom,  after  long  discussion,  decided  that  a  commission 
should  not  be  established;  and  our  failure  to  establish  it  will  be  taken  as  a  precedent 
to  the  Legislature  that  they  ought  not  to  do  the  thing  which  this  body  was  afraid  to 
GO,  upon  which  it  put  the  seal  of  its  disapprobation. 

Xow,  gentlemen,  furthermore,  I  ask  you  if  the  very  same  arguments  which  have 
been  used  against  the  measure  here  would  not  apply  with  just  as  much  force  against 
it  in  the  Legislature?  TMiat  do  they  say?  They  say,  in  the  first  place,  that  there  is 
no  occasion  for  any  such  commission.  If  there  is  no  occasion  for  it,  then  the  Legislature 
should  not  adopt  it,  and  they  will  make  that  same  play  to  the  Legislature.  They  say 
say  that  commercial  rates  should  control.  The^*  say  it  will  drive  away  capital.  They 
say  it  is  populistic.  They  say  it  is  unconstitutional,  gentlemen  of  the  committee,  if 
those  arguments  prevail  with  us,  how  much  more  will  they  prevail  with  the  Legisla- 
ture. And  we  must  recognize  the  fact  that  if  we  reject  this  measure,  these  gentlemen 
will  say,  and  they  will  be  largely  justified  in  saying  that  the  very  reasons  which  I  have 
read  to  you,  and  which  they  have  used  as  arguments,  were  the  reasons  why  we  did  re- 
ject it.  They  will  say  that  we  rejected  it  because  we  thought  it  would  drive  a-^ay 
capital,  because  we  thought  it  was  populistic,  because  we  thought  it  was  unconstitu- 
tional, because  we  thought  the  time  was  not  ripe  for  it,  and  so  forth,  and  so  on.  It 
will  be  almost  equivalent  to  an  instruction  to  the  Legislature  not  to  adopt  any  such 
measure  that  will  amount  to  a  row  of  pins. 

Do  not  let  us  deceive  ourselves,  gentlemen.  Xo  half-way  measures  go  here.  In 
the  slang  of  the  day,  this  is  a  "  fight  to  the  finish  "  between  the  people  on  one  side 
and  the  railroads  on  the  other.  There  is  no  time  for  compromising  and  for  postponing 
the  issue.  The  question  has  been  brought  up  and  is  now  before  3'ou.  Are  :rou  going  to 
make  an  effective  railroad  commission  in  this  State  or  are  you  going  to  lie  down  to  these 
roads  and  let  them  do  with  you  as  they  please?  Listen  not  to  my  friends  who,  with  the 
best  motives  and  best  intentions,  would  say.  •'•  Let  us  relieve  ourselves  of  the  responsi- 
bility and  put  it  off  on  somebody  else."  We  cannot  do  it.  We  have  either  to  be  whipped 
out  and  out.  or  we  have  got  to  whip  them  out  and  out,  and  we  may  as  well  know  it  and 
know  it  absolutely.  The  question  before  us — and  I  beg  of  you  to  remember  this — is  not, 
shall  we  make  it  or  shall  the  L-egislature  make  it,  but  the  question  is,  shall  we  make 
it  or  shall  nobody  make  it?  For  I  feel  a  prediction  here,  and  I  will  call  upon  every 
man  to  witness  the  fulfillment  of  it,  that  if  we  fail  to  establish  an  effective  corpora- 
tion commission  here,  neither  you  nor  I  nor  our  children  after  us  will  live  to  see  the 
day  when  such  an  institution  is  established  in  Virginia. 


2428  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Now,  Mr.  Chairman,  if  we  have  to  put  this  in  the  Constitution— and  if  I  am  at  all 
acquainted  with  the  sentiment  of  this  body,  I  believe  an  overwhelming  majority  of  you 
agree  with  me  that  we  ought  to  put  it  in  the  Constitution — ^no  half-way  bread-and-milk 
measure,  to  say  that  the  Legislature  must  do  it  will  be  sufficient.  Why,  the  Legislature 
knows  it  must  do  it.  It  has  known  it  for  years.  We  have  no  means  of  compelling  the 
Legislature  to  do  it,  and  I  do  not  care  how  many  good  men  are  in  there,  the  smallest 
leaven  of  those  who  differ  from  them  can  absolutely  defeat  their  will.  If  we  must  put 
in  the  Constitution,  an  effective  measure,  which  one  of  the  two  which  have  been  pre- 
sented to  you  for  your  consideration  must  you  adopt,  the  commission  that  is  established 
by  the  report  of  the  majority  or  that  of  the  minority?  I  do  not  know  whether  my 
friends  who  signed  the  report  of  the  minority  have  abandoned  it.  I  do  not  think  any- 
body else  has  ever  advocated  it  in  the  two  weeks'  debate  that  has  taken  place  on  this 
floor  but  the  two  gentlemen  who  have  signed  that  report. 

My  friend  from  Wythe  (Mr.  Blair)  said  this  morning  that  he  did  not  approve  of  IL 
You  cannot  saddle  it  on  him.  and  I  think  my  distinguished  friend  from  Fauquier  (Mr. 
Hunton)  and  my  friend  from  Norfolk  (Mr.  Brooke),  are  the  only  two  gentlemen  who  so 
far  have  advocated  the  adoption  of  that.  They  all  recognize,  as  was  stated  by  the  dis- 
tinguished gentlemen  from  Manchester  (Mr.  Ingram)  that  it  amounts  to  nothing  more 
or  less  than  the  perpetuation  in  this  State,  without  hope  of  remedy,  of  the  system 
which  has  proven  itself,  both  in  the  Interstate  Commerce  Commission  and  in  our  Rail- 
road commission,  to  be  absolutely  sounding  brass  and  tinkling  cymbal,  and  that  we 
had  better  let  the  whole  thing  alone  and  not  mention  the  subject  than  to  take  up  these 
ineffective,  insufficient  and  useless  things  which  have  proven  to  be  useless,  and  estab- 
lish them  in  our  Constitution. 

Now,  Mr.  Chairman,  and  gentlemen  of  the  committee,  I  will  ask  your  attention 
while  I  go  a  little  more  into  detail,  as  my  friend  from  Petersburg  (Mr.  Hamilton)  did, 
in  the  discussion  of  the  report  of  the  majority.  In  order  that  the  committee  may  be 
able  to  follow  me  better,  I  should  like  those  who  have  copies  of  the  bill  to  keep  it  be- 
fore them,  so  that  they  can  understand  and  follow  my  comments. 

Gentlemen  of  the  committee,  you  have  often  heard  it  said  that  we  go  into  immense 
detail.  My  distinguished  friend  from  Petersburg  the  other  day  again  and  again  re- 
ferred to  the  26  pages  on  this  subject.  Now,  gentlemen,  I  ask  you  in  all  fairness  to  look 
at  the  report  and  see  that  it  is  just  as  unfair  a  criticism  to  say  that  26  pages  are  de- 
voted to  the  subject  of  the  railroad  commission  as  to  say  that  the  entire  Constitution 
is  devoted  to  that  subject.  As  to  the  powers  of  this  Corporation  Commission,  so  far  as 
they  affect  railroad  companies,  you  will  find  them  in  subsections  B,  and  C,  a  little  over 
three  pages,  under  Section  4. 

I  ask  you,  gentlemen,  in  considering  this  matter,  to  do  it  analytically,  to  try  not  to 
consider  the  whole  report  at  one  glance  of  the  eye.  Let  us  take  it  up  piece  by  piece, 
so  that  we  do  not  get  our  minds  confused  by  having  different  things  in  our  thought 
that  have  no  connection  with  each  other.  In  the  first  place,  you  will  find  that  the  only 
section  in  the  entire  report  devoted  to  the  powers  and  duties  and  method  of  procedure 
of  the  commission  is  Section  4,  and  I  ask  you  that  in  considering  this  matter  you  will 
dismiss  from  your  minds  everything  for  the  present  but  Section  4.  I  call  your  attention 
to  the  fact  that  Section  4,  which  prescribes  the  duties  and  powers  and  procedure  of 
this  commission  deals  with  private  corporations  and  public  corporations;  but  I  call  your 
attention  to  the  fact  that  it  deals  with  them  in  an  essentially  different  manner.  If  you 
will  look  at  sub-section  A,  you  will  find  that  all  of  the  powers  and  duties  which  affect 
private  corporations  are  prescribed  in  sub-section  A.  All  the  balance  of  it  has  nothing 
under  heaven  to  do  with  private  corporations.  They  are  no  more  concerned  in  it  than 
private  individuals  are.  All  the  residue  of  Section  4,  sub-sections  C,  D,  E,  and  so  on,  have 
reference  to  public  corporations. 

Let  us  see  how  it  affects  private  corporations.  My  distinguished  friend  from  Peters- 
burg says  as  he  reads  it,  it  gives  arbitrary  power  to  this  commission  to  require  any 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIRGIXIA. 


2429 


kind  of  a  report  it  chooses  of  private  corporations,  and  to  exercise  inquisitorial  powers 
in  spying  into  their  business  and  exposing  it  to  the  public.  With  all  due  respect  to  my 
friend,  I  submit  that  there  is  absolutely  nothing  in  this  report,  from  beginning  to  end, 
that  will  justify  or  tend  to  justify  that  construction,  and  that  he  is  absolutely  mis- 
taken in  thinking  that  it  does  that. 

Mr.  Hamilton:  I  beg  to  call  your  attention  to  Section  5,  and  the  power  there  given 
to  the  commission  to  require  these  reports. 

Mr.  Braxton:  My  friend  misunderstood  me.  I  said  the  only  part  of  Section  4  which 
refers  to  private  corporations  is  subsection  A.  Now  I  will  read  that  subsection  to  you, 
and  I  ask  the  particular  attention  of  the  committee  to  this,  as  it  is  a  matter  of  great 
particularity. 

Subject  to  the  provisions  of  this  Constitution,  and  to  such  requirements,  rules  and 
regulations  as  may  te  prescribed  by  law — 

Now,  you  see  that  at  the  very  start  it  is  put  entirely  subject  to  the  rules,  regula- 
tions and  requirements  of  the  law.  It  is  m.ade  absolutely  in  that  respect  subject  to 
the  control  of  the  Legislature — 

The  State  Corporation  Commission  shall  be  the  department  of  government  through 
which  shall  be  issued  all  charters  and  amendments  or  extensions  thereof,  for  domestic 
corporations,  and  all  license  to  do  business  in  this  State,  to  foreign  corporations — 

You  will  observe,  if  you  turn  back  to  Section  2,  that  it  is  provided  particularly 
that  the  creation  of  corporations  shall  be  by  general  law,  and  out  of  abundance  of  cau- 
tion it  says  that  no  authority  in  such  matters  shall  be  conferred  upon  any  tribunal  or 
officer  authorized  to  grant,  amend  or  extend  charters,  further  than  to  ascertain  that  the 
applicants  have,  by  complying  with  the  requirements  of  the  law,  entitled  themselves 
to  the  charter,  amendment,  or  extension  applied  for. 

Its  powers  are  absolutely  ministerial.  It  does  nothing  in  that  respect  except  what 
is  done  in  other  States,  some  times  by  the  secretary  of  the  commonwealth  and  some- 
times by  a  similar  commission.  When  you  have  a  general  lav\^  for  the  issuance  of  a 
charter,  all  they  can  do  is,  when  an  application  is  made,  to  see  whether  the  applicants 
liave  complied  with  the  law,  whether  they  have  made  the  proper  affidavits,  paid  the 
proper  tax,  or  whatever  the  Legislature  may  require.  Then  they  issue  a  certificate  to 
the  euect  that  A,  B,  C,  D,  and  E,  having  complied  with,  the  requirements  of  the  law"  in 
such  case  provided  are  entitled  to  a  charter  for  such  and  such  a  purpose — not  as  they 
see  fit  but  as  the  law  requires;  and  they  have  absolutely  no  discretion  in  the  matter, 
and  their  proceedings  can  be  controlled  absolutely  by  mandamus  from  the  courts. 

I  go  on: 

And  through  which  shall  be  carried  out  all  (he  provisions  of  this  Constitution  and 
of  the  laws  m.ade  in  pursuance  thereof,  for  the  visitation,  supervision,  regulation  and 
control  of  corporations  chartered  by,  or  doing  business  in  this  State. 

In  other  words,  the  idea  is  that  all  of  the  dealing  of  the  State  with  corporations — 
we  do  not  say  v/hat  those  provisions  are;  they  may  be  great  or  they  m.ay  be  less — but 
whatever  they  are  they  must  be  carried  out  through  some  instrumentality,  and  we 
say  this  is  the  instrumentality  through  which  they  shall  be  carried  out.  At  present 
the  Auditor  carries  out  some,  the  Board  of  Public  Works  carries  out  some,  the  Railroad 
Commissioner  carries  out  some.  We  merely  collect  them  altogether  and  say  that  the 
Corporation  Commission  shall  do  exactly  the  same  thing  that  other  departments  of 
government  are  doing  to-day,  no  more  and  no  less,  except  v/here  the  Legislature  may 
liereafter  provide. 

The  said  Commission  shall  prescribe  the  form.s  of  all  reports  which  may  be  required 
of  such  corporations  by  this  Constitution  or  by  law. 


2430  DEBATES  OF  THE  COKSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Tlie  statute  to -day  is,  and  the  statute  has  been  for  years,  that  the  Auditor  fixes  the* 
form  in  which  the  report  shall  be  made.  He  had  absolutely  nothing  to  do  with  the 
substance  of  it,  but  when  the  Legislature  says  "  You  must  report  such  and  such  things," 
the  Auditor  to-day  says  in  what  form  you  shall  make  that  report,  and  the  commission, 
says  the  same  thing,  no  more  and  no  less. 

Every  report  that  is  made  to  that  commission  by  a  private  corporation  must  be  one 
which  is  authorized  and  required  by  the  Legislature,  and  the  only  thing  the  commis- 
sion can  do — this  does  not  prescribe  the  form  in  which  that  appearance  must  be  made— 
is  to  see  that  the  report  is  made,  and  when  it  has  done  that,  to  file  the  report  and  take 
care  of  it,  and  that  is  the  only  thing  on  earth  it  has  to  do. 

I  turn  to  Section  5  again,  about  reports;  and  this,  as  far  as  I  recall,  is  the  only 
other  thing  about  reports  of  private  corporations: 

Provision  shall  be  made  by  general  laws  for  the  payment  of  a  fee  to  the  Common- 
wealth by  every  domestic  corporation  upon  the  granting,  amendment,  or  extension  of 
its  charter,  and  by  every  foreign  corporation  upon  obtaining  a  license  to  do  business  in 
this  State,  as  s^lfcified  in  this  section;  and  also  for  the  payment  by  every  corporation 
hereafter  doing  business  in  this  State  of  an  annual  fee  of  not  less  than  $5  upon  its 
charter  or  license  to  do  business,  and  for  the  making — 

Provision  shall  be  made  by  the  general  laws,  by  the  Legislature — 

For  the  making,  by  every  such  corporation  (at  the  same  time,  and  in  connection 
with  the  payment  of  such  annual  fee),  of  such  report  to  the  State  Corporation  Com- 
mission, of  the  status,  business  or  condition  of  such  corporation — 

As  the  commission  thinks  proper?    You  will  see,  on  page  15,  line  13,  it  says: 

As  the  General  Assembly  may  prescribe. 

And  yet  my  friend  says  he  thinks  that  means  such  report  as  the  commission  may 
prescribe.  I  ask  any  man  present  to  look  through  this  thing,  to  rake  through  it,  to 
look  at  it  with  a  microscope,  and  to  put  his  finger  on  a  thing  which  gives  this  commis- 
sion any  power  over  a  private  corporation  except  to  issue  charters  under  the  general 
law,  to  prescribe  the  form  of  such  reports  as  the  Legislature  requires,  to  see  that  the 
reports  are  made,  and  to  file  them  when  they  are  made. 

I  pass  on  now  to  section  4,  and  I  come  to  sub-section  b.  Now,  gentlemen,  bear  in 
mind  this  whole  commission  deals  with  two  classes  of  corporations,  private  and  public. 
I  have  shown  you  what  the  extent  of  its  powers  over  private  corporations  is.  Now, 
dismiss  from  your  minds  the  subject  of  private  corporations;  and  everything  I  say  from 
this  on  bears  on  public  corporations,  railroads,  transmission  and  transportation  com- 
panies. 

Sub-section  b  which  is  the  principal  point,  prescribes  the  powers  and  duties  of  this 
commission  so  far  as  railroads  are  concerned.  I  use  the  word  "railroad"  rather  than^ 
the  long  expression  "transportation  and  transmission  companies,"  and  you  will  knov/  I 
m^ean  that  when  I  say  "railroads."  Let  us  look  at  it  again  analytically.  You  will  find 
that,  in  dealing  with  railroads,  it  has  power  to  do  two  things,  which  are  essentially 
different;  and  I  ask  you  to  bear  this  difference  in  mind.  It  has  power  to  fix  and  pre- 
scribe rates  of  charges,  and  it  has  power  to  fix  and  prescribe  other  rules  and  regula- 
tions that  do  not  affect  their  rates  of  charge. 

Now,  in  order  that  you  may  avoid  any  confusion,  I  will  ask  you  to  separate  these 
two  things  in  your  mind,  and  I  will  first  discuss  with  you  that  part  of  it  which  author- 
izes it  to  fix  charges  without  reference  to  its  power  to  make  other  rules  and  regulations. 
I  will  contrast  the  two  so  that  you  may  see  them.  Its  right  to  fix  charges  is  para- 
mount. It  is  taken  away  from  the  Legislature  absolutely.  Its  right  to  make  any  other 
kind  of  regulation  is  ancillary  and  subject  to  the  paramount  authority  of  the  Legisla- 
ture. 


DEBATES  OF  THE  COIs'STITUTIOIsTAL  CONYENTIOX  OF  VIRGINIA. 


2431 


In  reference  to  its  powers  to  make  charges,  it  is  the  supreme  legislative  body  of  the 
State.  In  fixing  charges  and  in  making  any  other  kind  of  rules  and  regulations  or  re- 
quirements that  you  can  think  of,  outside  of  charges,  it  is  a  subordinate  legislative  body. 

Mr.  Meredith:    Do  you  include  classification  in  "charges?" 

Mr.  Braxton.    Yes;  I  include  classification  of  traffic  in  the  word  "charges." 

In  all  these  other  rules  and  regulations  it  occupies  a  position  very  analagous  to  the 
power  that  is  conferred  upon  the  municipal  councils  of  cities  and  towns.  They  have  the 
right  to  pass  ordinances,  but  the  right  to  do  it  is  subject  to  the  paramount  right  of  the 
Legislature  to  legislate  thereon,  and  those  ordinances  must  not  conflict  with  the  general 
laws  passed  by  the  Legislature.  The  Legislature  can  curtail  and  prescribe  what  kind  of 
ordinances  they  shall  pass  and  what  kind  they  shall  not  pass. 

Just  to  that  extent  the  power  of  this  commission  to  prescribe  rules  and  regulations 
is  subject  and  ancillary  to  the  power  of  the  Legislature  to  legislate  thereon;  and  such 
rules  and  regulations  as  it  may  prescribe,  just  like  the  ordinances  of  a  city,  must  not  be 
in  conflict  with  the  laws,  rules  and  regulations  that  the  Legislature  may  pass.  Now, 
why  do  I  discriminate  in  that  respect?  I  do  so  for  this  reason:  The  right  of  the 
Legislature  to  fix  rates  and  charges  is  a  right  which  exists  only  in  theory.  As  I 
attempted  to  point  out  to  you  the  other  day,  it  is  physically  impossible  for  a  Legisla- 
ture to  fix  rates.  It  is  a  matter  of  too  much  detail.  It  is  a  matter  too  constantly 
changing.  No  Legislature  ever  did  fix  rates;  no  Legislature  ever  can  fix  rates  or  ever 
will  attempt  it.  Therefore,  when  we  take  from  them  the  power  to  fix  rates,  we  are 
taking  away  from,  them  merely  a  theoretical  power  which  they  are  incapable  of  exer- 
cising and  placing  the  identical  same  povv'er  in  the  hands  of  another  body  so  organized 
that  it  can  exercise  the  power. 

Suppose  I  say  to  a  man,  to  use  a  very  homely  and  crude  illustration,  "I  will  arm 
3-oti  with  a  sword,  but  you  m^ust  tie  it  to  your  foot."  Yvell,  you  will  say.  "I  have  got  the 
sword;  I  have  the  right  to  use  it;  it  is  a  valuable  weapon;  but  as  long  as  I  can  only  use 
it  with  my  foot  it  is  of  no  use  to  me.  It  is  true  I  have  it  and  am  armed  v/ith  it,  but  I 
have  it  so  that  I  can  use  it  only  through  that  limb,  and  it  is  impossible,  physically,  for 
me  to  use  it." 

I  say  to  the  State:  "You  have  this  right  to  fix  rates,  but  it  is  tied  to  your  foot.  It 
is  restricted,  as  the  law  stands  now,  to  the  Legislature,  and  you  cannot  exercise  it. 
I  will  take  it  off  your  foot,  and  I  will  put  it  in  your  hand.  I  will  make  an  arm  for  you 
that  you  can  use  this  weapon  yoti  have  had  all  along,  but  which  you  have  had  in  such  a 
v.^ay  that  you  could  not  exercise  it."  I  say,  therefore,  when  we  are  doing  a  thing  which 
my  worthy  friend  from  Winchester  says  is  robbing  the  great  tribunal  of  the  people  of 
their  right,  taking  from  them  the  powers  to  fix  rates — I  ask  him,  when  and  where  a 
Legislature  ever  did  fix  a  rate  in  the  world,  except  a  maximum  rate,  which  amounts  to 
nothing,  and  which  my  distinguished  friend  from  Fauquier  said  is  the  veriest  humbug 
on  the  face  of  the  earth.  I  take  that  pov^er  from  them  absolutely,  because  they  can- 
not use  it;  but  when  I  come  to  the  question  of  prescribing  rules  and  regulations  for  the 
railroads  other  than  rates,  that  condition  of  affairs  does  not  exist.  The  Legislature  can 
prescribe  and  does  prescribe  any  rules  and  regulations  for  the  railroads  which  are 
effective  or  can  be  made  effective,  but  there  still  remain  numerous  detail,  evanescent, 
shifting,  minute  rules  and  regulations,  absolutely  essential  for  the  protection  of  the 
public  welfare,  but  which  the  Legislature  cannot  enact  because  of  the  rarity  of  its 
session. 

Just  like  the  laws  of  a  town.  The  Legislature  makes  many  laws  that  control  the 
people  of  a  town,  and  they  are  laws  which  are  effective;  but,  owing  to  the  conditions 
there,  there  are  many  other  minute  matters  of  legislation  which  the  Legislature  cannot 
deal  with,  and,  therefore,  without  taking  the  town  out  of  the  control  of  the  Legislature, 
but  leaving  them  paramount,  we  establish  a  smaller  subordinate  and  ancillary  tribunal 
to  fill  up  these  little  places,  and  enact  this  minute,  this  small,  this  detailed  legislation 
to  make  a  complete  and  efficient  system  of  laws  for  the  city. 


2'432 


DEBATES  OF  THE  COXSTITUTIOJ^AL  CONVENTION  OE  VIRGINIA. 


We  therefore  here  do  not  take  from  the  Legislature  the  entire  power  of  making 
rules  and  regulations,  but  we  say  we  will  provide  in  that  respect  an  ancillary,  subordi- 
nate legislative  power  that,  leaving  you  the  paramount  control  of  the  whole,  can  yet 
make  this  small  and  detailed  legislation  necessary  to  make  more  effective  the  broader 
rules  which  may  be  enacted  by  the  Legislature  itself,  but  in  doing  so  it  is  left  absolutely 
under  the  control  of  the  Legislature,  just  as  much  as  the  ordinances  of  a  city  are  under 
the  control  of  the  general  laws  of  the  land. 

In  this  respect  the  powers  of  this  commission  to  fix  rates  and  to  fix  other  rules  and 
regulations  differ.  It  is  the  supreme  legislative  authority  in  fixing  rates.  It  is  a 
subordinate  and  ancillary  authority  in  fixing  any  other  rule  and  regulation;  but  in  both 
cases,  both  as  to  rates  and  as  to  rules  and  regulations,  out  of  abundance  ot  caution,  we 
have  behind  it  and  over  it,  in  review  of  it,  the  Supreme  Court  of  Appeals,  to  which 
appeals  must  be  taken  in  every  case  from  it;  and  I  say  now  therefore  in  dealing  with 
these  railroads  we  establish  a  tribunal  so  constituted  as  to  insure  as  much  as  possible 
efficiency,  reliability,  integrity  and  competency.  Vv^e  put  over  it  as  far  as  it  is  possible 
for  them  to  exercise  their  powers,  the  Legislature,  and  we  put  back  of  it  the  Supreme 
Court  of  Appeals,  and  I  ask  you  gentlemen  to  say  what  other  things  have  ever  been 
devised  in  government  by  the  wit  of  man  for  the  protection  of  property  in  any  civilized 
country?  And  yet  it  is  said  we  have  provided  a  wild,  anarchistic,  drastic,  destructive, 
arbitrary  tribunal,  to  do  as  they  choose. 

Now,  I  call  the  attention  of  the  Committee  to  a  further  distinction,  a  distinction 
with  a  material  difference;  and  I  ask  my  worthy  and  distinguished  friends  who  have 
heretofore  differed  with  me  in  this  matter,  for  whose  judgment  and  integrity  and  sin- 
cerity of  purpose  I  entertain  the  highest  opinion,  to  patiently  bear  with  me  and  to  see 
if,  after  I  point  out  these  distinctions,  after  I  call  their  attention  to  the  relations  which 
the  various  parts  of  this  section  4  bear  to  the  other  parts,  they  will  be  able  to  see  it  in 
a  light  which  will  convince  them  that  it  is  built  on  the  most  conservative  lines  upon 
which  it  is  possible  to  build  it. 

Subsections  B,  C,  D,  E,  F,  G  and  H  deal  with  public  corporations  only,  but  sub- 
sections B  and  C,  the  first  tv'o,  are  alone  fundamental.  The  residue  of  them  are  admin- 
istrative. Sections  B  and  C  prescribe  the  powers  and  duties  of  the  commissioner,  but 
the  other  subsections  prescribe  merely  the  method  of  conducting  appeals  on  the  ques- 
tion of  rates. 

Recognizing  that  difference  between  the  fundamental  section  and  the  administra- 
tive sections,  it  is  provided  that  only  the  two  fundamental  sections  shall  be  perpetual 
and  that  all  the  administrative  sections  shall  be  subject  to  correction  by  the  joint  action 
of  the  Legislature  and  the  commission,  as  I  will  explain  to  you  further  on.  When, 
therefore,  you  feel  inclined  to  think  that  all  this  detail  in  here  is  dangerous,  bear  in 
mind  that  that  detail  is  not  in  the  two  fundamental  sub-sections  B  and  C,  but  is  in  the 
remaining  sections,  which  are  purely  administrative,  which  apply  solely  to  the  question 
of  appeals  to  the  courts  and  which,  if  they  should  turn  out  to  be  unwise,  inefficient,  un- 
constitutional, undesirable,  can  be  remedied  just  as  readily  as  any  statute  upon  the 
book  to-day. 

Therefore,  gentlemen  of  the  committee,  when  you  are  trying  to  consider  this  report 
to  see  if  we  have  put  anything  in  it  that  is  dangerous,  that  we  could  not  risk  as  a 
fundamental  thing,  limit  your  investigations  to  sections  B  and  C.  Let  us  read  them 
now  and  see  if  there'  is  anything  dangerous  in  them. 

I  ask  you  to  observe  as  I  read  them,  that  it  has  nothing  on  earth  to  do  with  the 
long  and  short  haul  clause,  with  the  polling  of  freight  rates,  with  the  paralleling  of 
railroads.  All  of  those  matters  are  in  separate  sections,  and  we  can  consider  them 
when  we  come  to  them;  and  whether  you  adopt  them  or  reject  them,  whether  consti- 
tutional or  unconstitutional  has  nothing  to  do  with  the  corporation  commission.  These 
two  fundamental  provisions  merely  establish  a  tribunal  just  like  we  establish  the 
Supreme  Court.    We  do  not  undertake  to  say  how  it  shall  decide  cases.    We  establish 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXVEXTIOX  OF  YIEGIXIA. 


2433 


a  tribunal  with  broad  scope  of  powers,  elastic,  that  are  under  the  control  of  the  Legis- 
lature and  of  the  Court  of  Appeals,  as  I  have  tried  to  explain  to  3'ou. 

Now  let  us  see  if  there  are  in  these  subsections  B  and  C  anything  dangerous  to  put 
in  there.  It  is  all  very  well,  gentlemen,  to  go  around  and  deal  in  generalities  and  say 
the  report  is  26  pages  long:  without  saying  what  is  in  the  26  pages,  to  say  it  is  dan- 
gerous to  put  detail  in  the  Constitution.  All  those  platitudes  anj^body  will  agree  with. 
Take  the  particular  paper  and  put  your  hand  on  the  particular  thing  that  you  say  you 
want  stricken  out.  and  let  us  see  if  we  can  agree  to  strike  it  out  or  not.  That  is  the 
way  to  discuss  it.  If  you  will  turn  to  page  7,  line  21,  you  ^-ill  see  that  subsection 
B  reads: 

The  said  commission  shall  have  the  power  and  be  charged  with  the  duty  of  super- 
vising, regulating  and  controlling  all  transportation  and  transmission  companies  doing 
business  in  this  State — 

In  what? 

In  all  matters  relating  to  the  performance  of  their  public  duties  and  of  their 
charges  therefor. 

I  will  come  to  discuss  the  question  as  to  whether  it  is  dangerous  to  give  them  the 
right  to  control;  but,  concerning  that,  is  there  anything  in  detail  there,  "that  it  shall 
have  the  duty  of  supervising,  regulating  and  controlling  them  in  the  performance  of 
their  public  duties  and  of  their  charges  therefor,  and  of  correcting  abuses  therein." 
That  is  in  the  broadest  and  most  general  terms  in  v/hich  you  can  state  it.    It  proceeds: 

And  to  that  end — 

That  is,  to  the  end  that  they  may  efficiently  supervise,  regulate  and  control  these 
companies  in  the  performance  of  their  public  duties — 

the  said  commission  shall,  from  time  to  time,  preserve  and  enforce  against  such  com- 
panies, in  the  manner  hereinafter  authorized,  such  rates  of  charges,  classification  of 
traffic  and  rules  and  regulations,  and  shall  require  them  to  establish  and  maintain  all 
such  public  service  facilities  and  conveniences  as  said  commission  may,  within  the  limita- 
tions of  the  constitutions  of  this  State  and  the  United  States — 

And  we  propose  to  insert  these  words  there:  "And  subject  to  review  by  the  com- 
mission itself  and  also  on  appeal  as  hereinafter  provided" — 

Deem  reasonable  and  just,  which  said  rates,  classifications,  rules,  regulations  and 
requirements  the  said  commission  may.  from  time  to  time,  alter  or  amend,  and  all  rates, 
classifications,  rules  and  regulations  adopted  or  acted  upon  by  any  such  company,  and 
which  are  inconsistent  with  those  prescribed  by  said  commission,  within  the  scope  of 
its  authority,  shall  be  unlawful  and  void. 

I  ask  you,  gentlemen,  in  all  fairness,  if  that  is  not  dealt  with  in  the  most  general 
language.  If  we  are  tied  down  to  anything,  if  the  State  has  the  right  to  prescribe 
rates,  rules  and  regulations,  have  we  not  the  right  to  fix  a  certain  body  in  the  State 
which  shall  exercise  that  right  and  power?  And  we  simply  say  that  those  rights  and 
those  powers  shall  be  exercised  by  the  corporation  commission,  which  is  organized  and 
constructed  with  a  view  of  performing  that  service. 

The  said  com.mission  shall  have  a  right  at  all  times  to  inspect  the  books  and  papers 
of  all  transportation  and  commission  companies  doing  business  in  this  State,  and  to 
require  from  such  companies,  from  time  to  time,  special  reports  and  statements  under 
oath,  concerning  their  business — 

I  think  every  corporation  commission  in  the  United  States,  with  powers  and  with- 
out, have  that  authority — 


2434 


DEBATES  OE  THE  CONSTITUTIONAL  CONVEXTION  OF  VIRGINIA. 


it  shall  keep  itself  fully  informed  of  the  physical  condition  of  all  the  railroads  of  the 
State  as  to  the  manner  in  which  they  are  operated,  with  reference  to  the  security  and 
accommodation  of  the  public  and  shall,  from  time  to  time,  make  and  enforce  such 
requirements,  rules  and  regulations  as  may  be  necessary  to  prevent  unjust  or  unreason- 
able discriminations  by  any  transportation  company  against  any  person,  locality,  com- 
munity, connecting  line  or  kind  of  traffic,  in  the  matter  of  car  service,  train  or  boat 
schedule,  or  efficiency  of  transportation,  or  otherwise  in  connection  with  the  public 
duties  of  such  company. 

Now,  I  wish  to  show  you  how  we  have  thrown  around  this  every  provision  for  the 
protection  of  the  railroads  from  the  abuse  of  these  powers.  This  is  the  amendment 
which  I  gave  notice  of  the  other  day: 

But  before  prescribing  any  rate,  charge  or  classification  of  traffic  for,  or  making  any 
rule,  order,  regulation  or  requirement  directed  against  any  one  or  more  companies  by 
name,  such  company  or  companies  shall  first  be  duly  summoned  by  the  commission  and 
afforded  reasonable  opportunity  to  be  heard  thereon.  And  no  such  rate,  charge,  classifi- 
cation, rule,  regulation  or  requirement  shall  go  into  effect  against  any  company  or  com- 
panies to  be  affected  thereby  until  at  least  ten  days  after  due  service  thereof  upon  such 
company  or  companies. 

Mr.  Hamilton:  What  is  the  necessity  of  saying  "by  name,"  if  yo-u  propose  to  give 
them  all  an  opportunity  by  citation  to  be  heard. 

Mr.  Braxton:  I  am  very  glad  to  answer  the  question.  It  was  thought  probable,  in 
the  opinion  of  the  committee,  that  certain  general  rules  and  regulations  affect  all  rail- 
road companies;  for  instance,  to  illustrate,  that  every  railroad  company  should  open  its 
passenger  station  twenty  minutes  before  the  train  comes.  That  is  now  a  statute;  but 
suppose  it  had  not  been  a  statute,  it  would  have  been,  under  this,  competent  for  the 
commission  to  have  made  such  a  rule  or  regulation,  and,  inasmuch  as  it  applied  to  all 
railroad  companies  now  existing  or  hereafter  to  exist,  it  would  have  been  unjust  and 
impracticable  to  require  them  to  come  and  show  cause  against  it,  as  it  would  be  for  the 
Legislature,  when  it  undertakes  to  enact  a  statute,  to  summon  everybody  who  could 
possibly  be  affected  by  the  statute  to  be  heard  against  it.    But  even  in  that  case — 

Mr.  Hunton:    Can  they  not  fix  rates  in  the  same  way  under  your  amendment? 

Mr.  Braxton:  I  will  endeavor  to  explain  that  to  the  gentleman  before  I  get  through, 
if  you  will  pardon  me  for  not  answering  just  at  this  moment. 

If  they  had  made  such  a  general  rule  and  regulation  as  I  mention,  without  sum- 
moning the  company  before  they  did  it,  there  is  still  a  safeguard,  because  it  is  provided 
in  section  C  that  before  any  company  can  be  punished  for  its  failure  to  obey  any  such 
rule  and  regulation  it  shall  be  first  summoned  before  the  commission  and  shall  be  given 
an  opportunity  to  be  heard  by  due  process  of  law  as  well  against  the  reasonableness  and 
justice  of  the  rule  as  against  the  liability  or  the  fact  of  having  violated  it;  so  that,  even 
in  that  case,  they  would  have  their  hearing,  and  back  of  it  all,  whether  it  is  a  general 
regulation  or  a  specific  regulation,  there  would  still  be  the  appeal  in  every  case  to  the 
Supreme  Court  of  Appeals,  who  w^ould  review  the  reasonableness  and  the  justice  of  the 
rule  or  regulation,  as  well  as  the  liability  of  the  particular  company  for  violating  it. 

Mr.  Hamilton:  Do  I  understand  you  to  say  that  in  the  latter  part  of  section  C 
when  a  company  is  sum.moned  and  given  an  opportunity  to  be  heard  by  due  process  of 
lav/,  the  reasonableness  of  the  rule  violated  can  be  considered  under  that  citation?  It 
certainly  is  not  provided  here,  and  that  would  not  be  ordinary  practice. 

Mr.  Braxton:    Let  me  read  to  the  gentleman  from  the  bottom  of  page  9. 

If  you  will  look  at  line  84,  at  the  bottom  of  page  9,  you  will  see  it  provides  that  the 
commission  shall  have  the  powers  of  a  court — 

And  to  enforce  compliance  with  any  of  its  orders  or  requirements,  entered  by  it 
within  the  scope  of  its  authority,  by  adjudging  and  enforcing,  by  appropriate  executive 
process,  against  the  delinquent  or  offending  company  (after  it  shall  have  been  first 
duly  cited,  proceeded  against  by  due  process  of  law  before  the  said  commission,  sitting 


DEBATES  OE  TEIE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIPtGIXIA. 


2435 


as  a  court,  and  afforded  opportunity  to  be  heard,  as  well  as  against  the  validity,  just^ 
ness  or  reasonableness  of  the  order  of  requirement  alleged  to  have  been  violated  as 
against  the  liability  of  the  company  for  the  alleged  violation). 

It  is  pur  down  ipsissima  verba. 

Mr.  Chairman,  I  hate,  after  imposing  on  the  committee  so  long,  to  ask  any  further 
indulgence;  but  I  am  very  unwell  to-day,  and  I  feel  very  much  exhausted  by  my  speech. 
If  it  would  be  convenient  for  the  committee  to  rise  at  this  time,  and  let  me  continue 
this  afternoon,  I  should  be  very  grateful  for  the  indulgence. 

On  motion  of  ^Iv.  Y\'illiam  A.  Anderson,  the  committee  rose,  and  the  President  pro 
tempore  resumed  the  chair. 

AFTER  RECESS. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  pro 
tempore  in  the  Chair. 

Mr.  Stuart:  ]Mr.  President,  I  am  the  bearer  of  a  message  from  the  gentleman  fiom 
Augusta  ( Mr.  Braxton  j  to  this  body  to  the  effect  that  his  physical  condition  is  such  as 
to  prevent  him  from  appearing  to  complete  his  argument  before  the  Committee  of  the 
Whole  on  the  report  of  the  Committee  on  Corporations.  I  have  just  left  him,  and  I  am 
requested  to  express  his  regret  that  the  body  should  have  been  called  together  with  the 
expectation  of  proceeding  with  the  business  of  the  Convention.  I  therefore  move,  sir, 
that  the  Convention  adjourn. 

The  motion  was  agreed  to,  and  the  Convention  adjourned  until  to-morrow,  Friday, 
February  14,  1802,  at  10  o'clock  A.  M. 


FRIDAY,  February  14,  1902.  "  " 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  E.  V.  Baldy  of  Manchester,  Va. 

CO  RPO  RATIO  MS. 

On  motion  of  ?,Ir.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Keezell  in  the  chair. 

Mr.  Harrison:  Mr.  Chairman,  before  the  gentleman  from  Augusta  begins  his  re- 
marks, I  should  like  to  make  a  slight  correction  of  the  record  in  a  statement  with  re- 
lation to  these  railroad  commission  bills  in  the  Legislature.  I  said  on  yesterday  that 
one  of  these  bills  had  passed  the  House  of  Delegates  at  the  close  of  a  session  after  the. 
Mason  bill  had  been  passed  and  had  gone  over  to  the  Senate,  too  late  to  be  acted  on. 
The  fact  about  that  is  that  it  was  before  the  Mason  bill  was  passed.  Xo  railroad  com- 
mission bill  has  ever  passed  either  the  Senate  or  the  House  of  Delegates  since  the 
Mason  bill  was  enacted  into  law.  Some  sessions  prior  to  that  a  bill  had  been  passed  by- 
the  House  of  Delegates  and  had  gone  over  to  the  Senate,  too  late  to  be  acted  on  by  the 
Senate. 

In  session  of  lS91-"92  Mr.  Kent  introduced  a  railroad  commission  bill  with  very 
large  powers.  ]Mr.  Mason  also  introduced  a  bill  which  is  virtually  what  is  now  known 
as  the  Mason  bill.  In  the  House  of  Delegates  at  that  session  the  Mason  bill  was  sub- 
stituted for  the  Kent  bill  and  sent  over  to  the  Senate  and  promptly  passed  in  the  closing 
days  of  the  session.  Since  that  time  no  bill  has  ever  passed  either  house,  and  the  only 
record  in  regard  to  any  railroad  commission  bill  at  all  is  with  relation  to  one  that  was 
introduced  by  Mr.  Withers  in  the  Senate,  where  it  was  referred  to  a  committee,  and  no 
effort  was  ever  made  to  take  it  away  from  that  committee.    That  was  in  1S95-9G, 


2136  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTIOX  OF  VIRGINIA. 

Ano'ther  bill  was  introduced  by  Mr.  Saunders  in  the  House  of  Delegates  in  1897-98.  It 
also  went  to  a  committee  in  the  House  of  Delegates  and  was  never  called  up  and  never 
brought  back  to  the  House  of  Delegates. 

That  is  the  history  of  railroad  commission  legislation. 

The  statement  was  made  and  insisted  on  here  that  the  House  of  Delegates  had 
passed  three  bills  since  the  Mason  Bill  was  enacted  into  law,  that  they  had  been  sent 
over  to  the  Senate  and  had  been  turned  down  by  the  Senate. 

Mr.  Braxton:  I  think  the  gentleman  is  mistaken;'  I  did  not  say  that  three  bills  had 
been  passed  since  the  Mason  Bill.  I  was  relying  on  what  I  had  understood  the  gentle- 
man from  Rockbridge  (Mr.  Anderson)  to  say,  which  was  to  the  effect  that  there  had 
been  three  bills  introduced  in  the  General  Assembly,  and  my  recollection  was  that  he 
said  three  had  passed  the  House  of  Delegates  and  had  not  passed  the  Senate.  I  did  not 
understand  him  to  say,  and  I  did  not  intend  to  say  myself  that  that  action  had  been 
taken  since  the  Mason  Bill.  On  the  contrary,  I  understood  him  to  say  that  it  was  back 
in  the  eighties. 

Mr.  Harrison:  I  understood  that  that  was  the  course  of  argument  here,  and  the 
reason  I  m_ake  this  statement  is  that  I  said  the  Kent  Bill  had  passed  the  House  since 
the  passage  of  the  Mason  Bill,  which  is  incorrect. 

Mr.  Braxton:  Mr.  Chairman,  much  to  my  regret,  I  had  to  close  my  remarks  yes- 
terday before  I  had  gotten  through  with  what  I  desired  to  say  to  the  Committee,  and  I 
shall  endeavor  to  bring  them  to  a  final  conclusion  this  morning  as  soon  as  I  can. 

When  I  ceased  speaking  yesterday  I  was  endeavoring  to  explain  to  the  Committee 
the  general  scope  of  the  provisions  in  the  report  of  the  majority  of  the  Committee  for 
the  establishment  of  a  corporation  commission.  I  called  the  attention  of  the  committee 
to  the  fact  that  a  very  large  portion,  by  far  the  largest  portion  of  the  report  had  no 
connection  whatsoever  with  the  establishment  of  the  corporation  commission,  or  with 
the  prescribing  of  its  powers  or  duties,  and  that  a  mistake  would  be  made  if  gentlemen, 
in  thinking  that  the  report  had  gone  too  much  into  detail,  would  consider  that  all  of  the 
twenty-six  pages  of  the  report  were  detailed  with  relation  to  the  establishment  of  a 
corporation  commission.  Out  of  the  nineteen  sections  of  that  report  there  are  but  two 
sections  devoted  to  this  subject,  the  third  and  fourth  sections.  The  third  section  sim- 
ply prescribes  that  there  shall  be  such  a  commission  and  how  it  shall  be  elected  or 
appointed.  The  fourth  section,  and  the  fourth  section  alone,  of  all  the  nineteen  sec- 
tions, undertakes  to  deal  with  the  powers  and  duties  of  the  commission,  and  its  methods 
of  procedure.  That  fourth  section  is  divided  up  into  some  six  or  seven  subsections,  and 
of  those  subsections  the  first  is  devoted  to  the  powers  and  duties  of  the  commission  as 
they  affect  private  corporations.  It  is  only  subsections  B,  C,  and  the  next  four  sub- 
sections lettered  in  consecutive  order,  which  undertake  to  deal  with  the  powers  and 
duties  of  the  commission  as  a  railroad  commission. 

I  wish,  in  the  analysis  of  this  matter,  to  call  your  attention  further  to  the  fact  that 
of  those  six  subsections — I  think  there  are  six — devoted  to  the  powers  and  duties  and 
procedure  of  the  commission  as  a  railroad  commission,  only  two  of  them  are  funda- 
mental in  their  character,  and  undertake  to  prescribe  the  duties  and  powers  of  the 
commission.  The  remaining  four  have  reference  to  the  method  of  procedure  when  an 
appeal  is  taken  from  the  commission  to  the  Court  of  Appeals.  I  wish  to  call  your 
attention  to  the  fact  that  those  two  fundamental  subsections  B  and  C,  establishing 
powers  and  duties,  are  given  more  stability  and  more  perm.anency  than  the  remaining 
four  subsections,  which  are  administrative  in  their  character. 

All  of  the  sections,  just  as  is  the  case  with  all  parts  of  the  Constitution,  may  be 
amended  from  time  to  time — by  the  regular  method  of  amendment,  which  will  be  pre- 
scribed at  the  end  of  the  Constitution.  When  gentlemen  speak  of  the  immutability  of 
the  Constitution  you  would  think  that  such  a  thing  as  an  amendment  of  it  was  prac- 
tically impossible  and  hopeless.  As  a  m^atter  of  fact  there  has  never  been  a  Constitution 
in  this  couatry  that  has  not  been  amended  again  and  again,  that  is  not  susceptible  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYENTIOX  OF  YIKGIXIA. 


243.7 


amendment  without  any  trouble  or  difficulty.  The  greatest  written  Constitution  in  the 
world,  the  Federal  Constitution,  was  amended  ten  times  before  it  was  ten  years  old. 
The  Constitution  we  are  living  under  now  has  been  amended  again  and  again,  and  was 
amended  in  two  particulars  within  the  past  six  months. 

So  that  it  is  true  that  while  you  cannot  amend  a  Constittion  as  readily  as  you  can 
a  statute,  it  is  a  mistake  to  imagine  that  it  is  utterly  hopeless  and  impossible  to  amend 
it;  and  every  single  provision  of  this  article,  and  of  every  other  article  in  the  Constitu- 
tion is  susceptible  of  amendment  by  the  regular  Constitutional  method. 

But,  in  addition  to  that,  gentlemen — not  exclusive  of  it,  but  in  addition  to  it — in 
order  to  make  more  easily  susceptible  the  amendment  of  these  four  subsections,  which 
are  administrative  in  their  character,  Ave  say  that  without  waiting  for  the  regular,  ordi- 
nary, method  of  amendment,  those  four  administrative  subsections  can  be  readily 
amended  by  the  concurrent  action  of  the  commission  and  the  Legislature. 

Observe,  that  when  yoti  tmdertake  to  amend  the  Constittition  in  any  other  particu- 
lar, you  not  only  have  the  action  of  the  existing  Legislature,  but  it  must  be  supple- 
mented by  the  action  of  the  next  Legislature,  and  by  the  direct  vote  of  the  people. 
Now^  subsection  L  provides  that  in  addition  to  that  amendment  these  four  administra- 
tive subsections  can  be  amended  b3'  the  action  of  the  present  Legislature,  and  in  lieu  of 
the  concurrent  action  of  the  next  Legislature  and  of  the  people,  you  have  the  concurrent 
action  of  the  commission,  so  as  to  save  time  and  to  say  that  whenever  the  commission 
and  the  Legislature  agree  they  can  immediately,  without  delay,  and 'as  readily  as  you 
can  amend  a  statute,  amend  any  part  of  those  fotir  administrative  stibsections.  There- 
fore when  we  undertake  to  consider  that  portion  of  this  report  which  prescribes  the 
powers  and  duties  of  this  commission,  do  not  let  us  take  any  general  and  hazy  and 
mixed-up  view  of  this  matter  and  think  that  because  it  is  a  large  article  it  is  all  on  that 
subject.  But  let  us  view  it  with  discriminating  eye,  and  let  us  see  that  there  are  only 
two  subsections,  B  and  C.  which  undertake  to  do  this  thing;  and  let  us  see  if  they  eon- 
tain  anything  which  is  dangerous,  anything  which  is  unwise,  to  put  into  a  Constitution. 

Let  me  see  if  I  cannot  point  out  to  you  that  these  subsections  are  drawn  on  the 
most  conservative  lines,  that  they  are  most  elastic,  dealing  with  the  most  general  terms, 
and  subject  to  adjustment  to  suit  any  condition  of  affairs  that,  within  the  range  of 
human  probability,  will  ever  occur. 

Subsection  B,  which  is  the  most  important  of  them  all,  in  undertaking  to  give  the 
powers  of  this  commission  as  a  railroad  commission,  discriminates,  as  I  undertook  to 
point  out  to  you  yesterdaj^  between  its  power  to  fix  rates  and  its  power  to  make  any  other 
regulations.  The  power  to  fix  rates  is  exclusively  a  legislative  power.  All  control  of 
tliat  matter  is  taken  from  the  Legislature  because  it  is  a  mere  nominal  thing  after  all. 
It  amounts  to  nothing. 

It  is  there  only  a  theory.  But  this  power  to  make  other  rules  and  regulations  is 
ancillary  and  subservient  and  subordinate  to  the  superior  authority  of  the  Legislature, 
and  is  very  similar  by  analogy,  to  the  power  of  the  ordinary  municipal  council  to  enact 
ordinances,  and  over,  above,  beyond  and  controlling  the  whole  of  it.  whether  it  be  fixing 
rates  or  otherwise,  presides  the  Supreme  Court  of  Appeals  of  this  State,  xAth  power  not 
only  to  review  the  regularity  of  the  proceeding,  but  to  look  into  the  merits  of  it,  and  to 
decide  in  each  case  whether  the  rate  fixed  or  the  rule  or  regulation  made,  is  a  just  and 
reasonable  one.  In  fixing  the  rates  we  give  this  commission  not  only  the  legislative 
power  to  fix  the  rates,  but  also  the  judicial  power  to  enforce  the  rates;  a  matter  which 
I  will  come  to  in  a  moment. 

There  has  been  some  confusion  in  the  decisions  of  the  Supreme  Court  of  the  United 
States  as  to  this  question,  as  to  whether  it  is  necessary  for  the  railroad  to  be  summoned 
and  given  a  hearing  before  a  commission  when  it  fixes  its  rates,  or  whether  the  fixing 
of  the  rates  by  a  commission  is  so  purely  and  strictly  a  legislative  proceeding  that  they 
can  fix  it  without  giving  the  railroad  a  hearing,  just  as  the  Legislature  does.  Judge 
Thompson,  in  his  well  known  work  on  corporations,  seems  to  think  that  those  opinions 


^438 


DEBATES  OF  THE  COIsTSTITUTIOXAL  COXVENTIOIST  OF  VIRGINIA. 


of  the  Supreme  Court  which  have  held  that  the  railroad  is  entitled  to  a  hearing  before 
the  commission  fixes  the  rate,  are  about  to  be  abandoned,  and  to  be  overruled,  and  that 
the  tendency  of  the  court's  decision  is  to  say  that  the  railroad,  as  a  matter  of  right,  has 
no  more  right  to  be  heard  before  the  commission  when  its  rates  are  being  fixed  than  it 
has  to  be  heard  before  the  Legislature. 

But  out  of  the  abundance  of  caution,  gentlemen  of  the  committee,  out  of  an  ex- 
cessive desire  to  do  absolute  justice  to  the  railroads,  it  is  provided  that  they  shall  have 
the  privilege  of  a  preliminary  hearing.  I  do  not  care  which  view  the  Supreme  Court 
takes,  whether  they  say  that  the  railroads  are  entitled  to  it,  or  that  they  are  not  en- 
titled to  it,  we  give  it  to  them.  We  say  that  before  the  rate  is  fixed,  before  any  rule 
or  regulation,  however  trivial,  can  be  made  for  any  railroad  company,  that  company 
shall  first  be  summoned  by  the  commission  and  given  its  opportunity  to  be  heard.  Not 
satisfied  with  that,  gentlemen,  we  go  further,  and  we  say  that  if,  after  having  so  fixed 
the  rate,  or  the  rule  or  the  regulation,  and  after  having  so  given  the  company  the 
right  to  be  heard  upon  it, if  the  company  fails  to  recognize  it  and  to  abide  by  it,  and  the 
commission  undertakes  to  punish  them  for  their  failure  to  do  so,  the  company  must  be 
again  s.ummoned  and  again  given  an  opportunity  to  be  heard,  as  well  against  the 
reasonableness  and  justice  or  the  rate  or  rule  fixed,  as  on  their  liability  for  breaking  it. 
So  that  they  are  given  two  opportunities  to  be  heard  on  the  same  question  before  the 
commission.  Not  satisfied  with  that,  v/e  say  further,  that  if  after  these  two  oppor- 
tunities to  be  heard  before  the  commission,  you  fail  in  both  of  them,  you  can  then  go 
to  the  Supreme  Court  of  Appeals  and  have  the  whole  matter  reviewed  again,  and  have 
them  say  whether  the  commission  has  been  unjust  or  unreasonable,  or  has  proceeded 
illegally  or  irregularly  in  doing  anything  which  it  has  done;  and  we  think  it  is  not  un- 
reasonable for  us  to  assume  that  when  the  commission,  composed  as  it  will  be,  has  said 
that  the  rate  or  rule  is  a  just  and  reasonable  one,  and  when  the  Supreme  Court  has 
said  it  is  a  just  and  reasonable  one,  it  is  fair  to  assume  it  is  a  just  and  reasonable 
one,  although  the  railroad  company  may  not  think  so.  As  to  what  is  just  and 
what  is  reasonable,  is  a  matter  of  opinion  after  all,  and  like  all  other  matters  of 
opinion  the  opinion  of  the  highest  tribunals  in  the  land,  after  the  parties  affected  have 
been  given  their  opportunity  to  be  heard  and  proceeded  against  by  due  process  of  law, 
is  the  final  arbiter  to  say  what  is  right  and  what  is  wrong. 

We  thought,  gentlemen  of  the  committee,  that  it  was  anomalous,  that  it  was  un- 
reasonable and  that  it  is  improper  to  say  that,  in  these  controversies  between  shippers 
and  the  railroad  company  as  to  the  justice  and  reasonableness  of  their  rules  and  rates, 
one  of  the  parties  to  that  controversy,  to-wit:  the  railroad  company  should  be  allowed 
to  pass  upon  the  justice  and  reasonableness  of  its  own  acts,  but  that  that  controversy, 
like  every  other  controversy  that  can  arise  between  human  beings,  is  susceptible  to 
decision  by  the  courts  of  the  land,  and  should  be  decided  by  them,  and  that  the  method 
and  machinery  of  getting  that  decision  should  be  arranged  in  such  a  way  that  it  can 
be  availed  of  as  a  practical  thing,  and  not  to  represent  a  mere  theory  that  will  do  no 
practical  good  to  any  man. 

Gentlemen,  in  order  to  show  to  you  that  your  committee,  instead  of  being  actuated 
by  motives  of  hostility  to  the  railroads,  or  by  an  anarchistic  desire  to  pull  down  and 
destroy  capital  and  set  up  the  rule  of  the  proletariat,  that  we  have  swept  the  field  of 
available  means  to  give  to  the  railroad  .companies  every  possible  safeguard  that  the  wit 
of  man  has  as  yet  devised  for  the  protection  of  property  rights.  I  wish  to  show  you,  re- 
stricting our  consideration  now  to  the  question  of  rates,  that  when  the  rate  is  first 
fixed  this  tribunal  constituted  as  we  have  shown  you,  first  gives  them  their  oppor- 
tunity to  be  heard;  that  after  the  rate  is  fixed  and  when  it  is  attempted  to  enforce  it, 
the  companies  have  a  second  opportunity  to  be  heard;  that  if  they  are  not  satisfied 
they  then  have  a  third  opportunity  to  be  heard  before  the  highest  court  in  this  land, 
and,  furthermore,  gentlemen,  we  say  to  them  that  "in  order  to  prevent  the  possibility  of 
any  injury  being  done,  in  order  to  say  that  we  will  not  touch  a  hair  of  your  head  until 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  TIEGIXIA. 


2139 


you  hare  the  opportunitj-  of  exhausting  every  legal  remedy  that  the  law  ever  con- 
ceived of,"  v,-e  say,  "You  can  continue  charging  your  own  present  rate  without  let  or 
hindrance  until  the  final  judgment  of  the  matter  hefore  the  Court  of  Appeals,  if  you 
will  only  do  the  thing  which  every  other  man  will  have  to  do,  and  give  a  refunding 
bond  to  pay  back  the  excess  if  the  Court  of  Appeals  does  not  sustain  your  pretension."' 

So  that  if  the  decision  of  this  commission  should  be  unjust  and  unwise,  if  it  should 
be  populistic  and  destructive,  it  cannot  hurt  the  railroad  for  one  minute;  it  does  not 
interfere  with  the  charging  of  their  rates  one  iota,  until  it  has  been  ratified  by  the 
Court  of  Appeals,  provided  only  that  the  railroad  company  has  enough  confidence  in 
the  merits  of  its  own  appeal  to  give  a  reasonable  bond  to  restore  and  refund  to  the 
people  any  overcharge  which  it  may  make,  in  case  its  appeal  is  not  sustained.  The 
only  difference  betw'een  us  and  those  who  oppose  this  view,  is,  when  you  trace  it  down 
to  its  last  analysis,  neither  more  nor  less  than  this:  Those  who  do  not  wish  to  give 
this  commission  the  power  of  a  court  to  enforce  its  own  rulings,  substantially  say  in 
effect  that,  having  established  a  legal  tribunal  here,  for  fixing  rates,  and  having  afforded 
you  ever^'  opportunity  to  be  heard  before  it,  when  that  tribunal  in  the  discharge  of  its 
duties  under  the  sanction  of  a  solemn  oath  to  God  to  do  so  without  fear,  favor  or 
affection,  a  tribunal  that  has  no  interest  in  the  controversy  when  it  has  performed  its 
solemn  function,  and  has  fixed  the  rate,  they  say  the  law  must  presume  that  that  rate 
so  fixed  by  them  is  unjust,  unreasonable  and  illegal  until  a  court  is  resorted  to  to  put 
its  approval  upon  it  and  say  it  is  just  and  reasonable;  but  to  say  when  it  has  acted  in 
that  manner  it  is  but  a  fair  presumption  to  say  that  the  rates  so  fixed  are  just,  reason- 
able and  fair  until  the  court  has  said  they  are  not  so;  that  the  presumption  is  in  favor 
of  the  justice  of  the  decision  of  the  commission,  and  not  against  it.  We  say  it  would 
be  just  as  unreasonable  to  require  the  commission  to  go  to  the  court  to  enforce  its 
orders  as  it  would  be  to  say  that  when  A  and  B  brought  their  litigation  before  a  circuit 
court,  and  that  circuit  court,  in  the  performance  of  its  solemn  duties,  has  decided  in 
favor  of  A  and  against  B  that  judgment  is  presumed  to  be  wrong  on  its  face,  and  to 
remain  an  absolute  nullity  until  A,  in  whose  favor  its  decision  had  been  made,  has  taken 
it  to  a  higher  court  and  had  it  ratified. 

Was  ever  such  an  idea  promulgated? 

We  SSLY  that  decision  must  be  presumed  to  be  fair  and  just,  and  if  B,  against  whom 
it  is  rendered,  is  not  satisfied,  the  burden  is  on  him  to  take  it  to  the  court  and  have 
ic  reversed. 

Applying  that  same  principle  here,  we  say  that  after  the  railroad  has  been  pro- 
ceeded against,  and  after  the  decision  of  the  commission  has  been  rendered,  the 
burden  must  be  upon  the  person  who  is  not  satisfied  with  that  decision  to  take  it  to  the 
court  and  have  it  reversed,  and  not  upon  the  man  who  is  satisfied  with  it,  to  take 
it  to  the  court  and  have  it  affirmed.  We  say,  in  effect,  to  the  railroad,  "  Having 
had  your  rate  fi-xed  in  this  way,  having  given  you  your  time  to  be  heard,  you  must  do 
one  of  two  things.  We  have  given  you  every  opportunity  to  take  it  up  and  have  it  re- 
viewed; you  must  either  avail  yourself  of  that  opportunity,  3-ou  must  either  have  it  re- 
versed, or  you  must  obey  it.  You  shall  not  stand  here  and  shake  your  fingers  in  the 
face  of  the  majesty  of  the  State  of  Virginia,  and  say  T  will  treat  as  a  nullity  a  decision, 
by  as  high  and  august  a  tribunal  as  this.  I  will  not  take  the  trouble  to  have  it  re- 
viewed by  the  court,  but  I  will  defy  it  and  disregard  it  until  you  take  it  to  the  court 
and  have  it  affirmed.'  " 

I  say,  therefore,  gentlemen,  it  is  not  only  just  and  reasonable,  but  it  is  entirely  in 
line  with  every  analagous  principle  of  the  administration  of  justice  that  this  tribunal's 
decisions  should  be,  from  the  date  they  are  rendered,  absolutely  valid  and  effectual 
until  they  are  reversed,  and  not  remain  nullities  until  they  are  affirmed. 

Passing  on  now,  gentlemen,  to  the  second  thing,  the  right  of  the  tribunal  to  fix 
rules  and  regulations  to  regulate  and  control  the  railroad  companies. 

I  ask  you,  in  the  consideration  of  this  matter,  to  avoid  any  confusion  in  your 


2-440 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


minds,  to  dismiss  from  your  minds  the  question  of  fixing  rates.  I  have  tried  to  point 
out  to  you  wherein  that  is  different  from  this.  ~ 

My  friends  object  very  much  to  the  use  of  the  word  "control."  I  listened  faith- 
fully to  every  word  I  could  hear  on  that  subject,  for  as  God  is  my  judge,  I  have  no 
desire  to  do  anything  that  is  unjust  or  unreasonable  or  unwise  in  this  report.  I  do  not 
think  my  mind  is  biasicd  by  the  pride  of  opinion.  I  cannot  help  but  think,  if  I  know 
myself  and  my  own  heart,  that  I  too  greatly  appreciate  the  vast  importance  of  the 
work  upon  which  we  are  engaged  to  jeopardize  or  risk  any  part  of  it  in  order  to  get 
any  temporary  gratification  or  to  carry  out  some  pet  idea  or  theory  of  my  own.  I  am 
not  only  willing  but  anxious  for  all  the  light  on  this  subject  I  can  get'.  I  have  studied, 
and  I  listened  with  the  utmost  care  to  everything  that  was  said  on  this  subject  to  see 
if  it  were  possible  that  we  were  going  too  far  when  we  used  the  word  "control,"  and, 
although  it  may  be  the  result  of  my  denseness,  I  am  free  to  say  that  I  have  never  yet 
heard  anything  in  the  argument  to  support  that  proposition.  My  friends  say  they  are 
perfectly  willing  that  the  commission  should  be  given  power  to  supervise  and  regulate, 
but  not  to  control.  What  the  distinction  between  regulating  and  controlling  is  has 
never  been  clearly  pointed  out.    How  can  you  regulate  a  thing  you  cannot  control? 

But,  in  addition  to  that,  gentlemen  of  the  committee,  this  word  "control,"  I  may 
say,  is  a  term  ot  art.  It  is,  the  very  word  and  language  that  is  used  by  nearly  every 
authority  on  the  subject.  Does  not  the  State  control  everybody  in  the  State?  But  it 
does  not  carry  on  their  business.  Is  there  not  a  distinction  between  having  authority 
to  control  a  thing,  and  undertaking  to  carry  the  business  out  and  to  manage  and  ope- 
rate it  yourself.  Let  us  see  what  some  of  the  authorities  on  this  question  say.  I  will 
not  take  up  the  time  of  the  committee  long  in  a  technical  discussion,  but  just  to  show 
you  that  this  word  is  not  such  a  terrible  thing  as  my  friends  seem  to  think.  It  is  an 
old  friend.  It  is  a  word  that  is  familiar  to  students  of  this  matter.  It  is  the  word  used 
by  all  writers  on  the  subject.  I  refer  to  the  last  edition  of  Elliott  on  Railroads,  volume 
2,  section  674: 

The  system  of  governing  and  regulating  railroads  by  commissions  is,  in  most  of 
the  States,  borrowed  ii;  the  main  from  the  English  statutes.  The  statutes  enacted  by 
the  State  are  essentially  different  in  matters  of  detail,  but  all  are  directed  to  the  attain- 
ment of  the  £ame  general  object,  namely,  the  regulation  of  the  duties  of  railroads  as 
common  carriers,  and  the  regulation,  management  and  control  of  railroads,  so  far  as 
they  are  affected  by  public  interests.  The.  pov/er  to  establish  such  commissions  is 
rested  upon  the  general  principle  that  the  State  has  control  over  property  and  pursuits 
of  a  public  nature. 

It  has  been  said  that  the  statutes  create  no  new  or  additional  duties;  but  this  state- 
ment as  applied  to  some  of  the  statutes,  requires  qualification.  The  principal  and  lead- 
ing purpose  of  most  of  the  statutes  is  to  control  and  regulate  the  charges  for  the  trans- 
portation of  freight  and  passengers,  but  the  provisions  of  the  statutes  generally  go  far 
beyond  the  regulation  of  charges  for  transportation,  and  confer  comprehensive  powers 
over  the  maintenance,  management  and  operation  of  the  railroads.  Governmental  con- 
trol of  railroads  in  many  of  the  States  is  exercised  through  the  instrumentality  of 
ofiicers,  generally  called  railroad  commissioners. 

Reading  from  Second  Morawetz  on  Private  Corporations,  sections  1073  and  1074: 

Over  the  railroad  as  a  highway,  and  in  all  its  public  relations,  the  State,  by  vir- 
tue of  its  general  legislative  power,  has  supervision  and  control. 

The  Supreme  Court  of  the  United  States,  in  Munn  vs.  Illinois — 

Held  that  the  fourteenth  amendment  was  not  designed  to  deprive  the  State  of  the 
power  of  enacting  laws  in  relation  to  any  subject,  before  the  adoption  of  the  amend- 
ment, was  regarded  as  a  proper  and  customary  subject  of  legislative  control;  and  it 
was  laid  down  as  a  general  rule  that  "  when  one  devotes  his  property  to  a  use  in  which 
the  public  has  an  interest,  he  in  affect  grants  to  the  public  an  interest  in  that  use,  and 
must  submit  to  be  controlled  by  the  public  for  the  common  good,  to  the  extent  of  the 
interest  he  has  thus  created.  He  may  withdraw  his  grant  by  discontinuing  the  use; 
but  so  long  as  he  maintains  the  use,  he  must  submit  to  the  control." 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2441 


That  is  the  very  language  of  Chief  Justice  Waite  in  that  celebrated  case  of  Munn 
vs.  Illinois,  which  has  been  again  and  again  reiterated  as  an  authority. 

Taking  a  case  as  late  as  1896,  the  Interstate  Commerce  Commission  vs.  the  Cin- 
cinnati, &c.,  Railroad,  167  U.  S.,  Mr.  Justice  Brewer,  who  is  justly  regarded  as  one  of 
the  ablest  men  on  the  Supreme  Court,  again  referring  to  this  subject,  used  this  lan- 
guage: 

Administrative  control  over  railroads  through  boards  or  commissioners  was  no 
new  thing.  It  had  been  resorted  to  in  England  and  in  many  of  the  States  of  the  Union. 
In  England,  while  control  had  been  given  in  respect  to  discrimination  and  undue  pre- 
ferences, no  power  had  been  given  to  prescribe  the  tariff  of  rates.  In  this  country  the 
practice  has  been  varying. 

I  will  go  no  further,  gentlemen,  to  show  you  that  this  very  identical  word  "  con- 
trol" is  the  word  that  is  always  used  in  this  connection,  that  it  is  not  essentially  differ- 
ent from  regulating,  but  that  "control,"  "supervise  and  control,"  "regulate  and  con- 
tror'  are  stereotyped  phrases  used  and  recognized  by  all  authorities,  and  the  exact 
Bcope  and  meaning  of  them  fully  and  absolutely  established. 

I  will  go  further,  gentlemen,  and  say  that,  as  v\'as  said  in  a  case  in  173  U.  S.,  the 
States  have  no  right  to  take  charge  of  the  management  and  operation  of  the  railroads; 
that  the  word  '"control"  cannot  be  stretched  to  include  any  such  meaning  as  that.  So 
that  I  take  it  to  be  an  established  proposition  that  even  in  this,  literal  interpretation, 
if  the  word  "control"  could  be  stretched  to  mean  taking  charge  and  management  of  the 
road  the  court  would  limit  that,  because  it  says  it  is  impossible  for  us  to  give  any  such 
power,  and  we  could  not  confer  upon  them  any  such  povv-er.  If  we  did  so  by  express 
language,  it  would  be  absolutely  a  nullity. 

It  is  a  well-known  canon  of  construction  that  when  a  word  in  its  literal  interpreta- 
tion can  be  stretched  so  far  in  its  meaning  as  to  include  things  which  are"  prohibited  by 
the  Constitution,  the  court  vv^ill  not  so  far  extend  it,  but  will  restrict  it  in  its  meaning  to 
those  things  as  to  which  it  has  a  right  to  have  force. 

Now,  therefore,  when  we  undertake  to  say  in  so  many  words  that  this  commission 
shall  have  the  power  of  a  board  of  directors  to  take  charge  and  manage  and  operate 
these  roads,  it  would  not  be  worth  the  paper  it  is  written  on,  because  the  Federal  Con- 
stitution says  it  shall  not  do  it,  and  that  no  courts  in  any  country  in  the  world  would 
attribute  to  us  an  intention  to  do  a  thing  which  we  must  be  presumed  to  know  we 
could  not  do;  and  the  use  of  this  word  control"  will  be  limited  to  what  the  courts  and 
the  text  writers  have  heretofore  limited  it  to,  and  that  is  that  kind  of  control  which  the 
State  has  a  right  to  exercise  in  the  nature  of  supervision  and  regulation  and  the  pre- 
scribing of  requirements  for  the  road  in  the  performance  of  its  public  duties,  to  see 
that  they  are  so  performed  that  the  public  interests  which  they  undertake  to  serve  are 
not  abused  thereby. 

I  again  call  the  attention  of  the  committee  to  the  fact  that  we  cannot  confer  upon 
this  commission  any  power  that  does  not  exist  in  the  State  to-day.  All  power  that  it 
is  possible  for  government  to  have,  our  State  has,  except  as  it  is  curtailed  by  the  Fed- 
eral Constitution,  and  we  cannot  enlarge  it.  The  most  we  can  do  is  to  take  powers  that 
already  exist  and  transpose  them  from  one  department  of  government  to  another.  I 
care  not  what  language  we  use,  we  cannot  give  this  commission  one  iota  of  power  over 
the  railroads  that  some  department  in  the  State  has  not  to-day;  and  if  these  powers 
which  must  exist  have  not  been  abused  heretofore,  why  do  we  think  they  are  going  to 
be  abused  hereafter? 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  call  your  attention  to  the  nature 
and  character  of  the  arguments  that  have  been  used  along  this  line.  They  say  that  the 
power  is  so  great  that  the  possibility  of  its  abuse  is  fraught  with  such  serious  conse- 
quences that  the  very  government  of  the  State  should  not  be  entrusted  with  it. 

Now,  I  know  my  friends  do  not  mean  their  argument  in  the  way  I  state  it,  but  I 

154 — Const.  Deb. 


24:4,2  DEBATES  OE  THE  CO^fSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

contend  this  is  the  real  meaning  of  it,  this  is  the  only  logical  conclusion  from  it,  that 
these  powers  to  operate  their  roads  as  they  choos.e,  to  extend  or  curtail  their  facilifies 
for  transportation  as  they  choose,  to  refuse  to  carry  freight  when  they  want  to  hy 
simply  saying  they  have  not  cars  enough,  to  charge  whatever  they  choose,  to  use  all 
the  possible  abuses  that  we  know  it  is  possible  to  use  with  the  great  powers  the  rail- 
road companies  have,  to  pull  down  whom  they  choose  and  to  build  up  whom  they 
choose,  to  destroy  whole  communities  whenever  they  see  fit  to  do  so — that  all  of  that 
vast  power  controlled  and  unlimited  by  any  practical  mealis  of  controlling  it  or  limit- 
ing it  should  be  left  to  the  arbitrary  discretion  and  caprice  and  avarice  of  the  men  who 
manage  the  railroad  companies,  and  that  we  should  trust  ourselves  to  the  vain  hope 
that  they  will  not  abuse  them,  that  it  is  not  to  their  interests  to  abuse  these  powers, 
and  that  they  will  use  them  justly  and  reasonably.  And  yet  they  say  that  they  will 
take  the  chance  that  a  railroad  will  not  abuse  these  powers  that  they  are  not  willing 
to  leave  to  the  government  but  they  are  not  willing  to  take  the  chance  that  govern- 
ment will  not  abuse  them.  I  say  if  they  are  abused  they  had  better  be  abused  against 
the  railroad'?  and  m  favor  of  the  great  mass  of  people  rather  than  against  the  people, 
and  in  favor  of  the  railroads. 

If  arbitrary  power  is  to  be  lodged  anywhere,  it  should  be  lodged  in  government, 
and  not  in  any  corporation  or  private  individual  or  collection  of  individuals.  But  I  say 
further,  gentlemen,  it  is  absolutely  absurd  fo  talk  about  the  government  undertaking 
to  destroy  the  railroads.  Everybody  recognizes  that  the  railroads  are  far  and  away 
the  greatest  physical  handmaidens  of  civilization  that  has  ever  existed,  but  as  I  stated 
the  other  day,  like  fire  and  water,  though  most  valuable  servants,  they  are  absolutely 
ruthless  and  destructive  masters. 

In  the  case  of  Reagan  vs.  the  Farmers'  Loan  ,&  Trust  Company,  in  which  the 
validity  of  the  Texas  Railroad  Commission  was  being  questioned,  these  same  things 
were  said,  that  these  powers  should  not  be  trusted  to  any  branch  of  government  unless 
that  branch  was  so  organized  that  it  v/as  practically  impossible  to  exercise  them. 
That  same  argument  met  with  a  stern  rebuke  at  the  hands  of  the  Supreme  Court  of  the 
United  States  when  the  judge  said  it  was  wrong,  ahsurd  to  assume  that  the  govern- 
ment was  going  to  abuse  its  powers  in  that  way;  that  that  could  be  applied  to  the 
establishment  of  everything  in  government,  government  itself  implies  force  and  power 
of  coercion,  and  that  force  and  that  power  implies  and  carries  with  it  necessarily  the 
power  of  destruction,  if  it  is  absurd.  The  great  Chief  Justice  Marshall  said  that  the 
v/ell-known  power  of  taxation  was  the  povv^er  of  destruction.  You  might  say  that  the 
government  shall  not  be  allowed  to  tax  because  they  might  tax  you  out  of  existence. 
Shall  you  say  the  Court  of  Appeals  and  no  other  tribunal  shall  have  the  right  to  pass 
on  life  and  death  because  forsooth  they  might  hang  any  man  whetherte  was  innocent 
or  guilty?  Are  you  to  abolish  the  whole  system  of  jury  trial  because'  possibly  a  jury 
may  be  actuated  by  ignorance,  fraud  or  caprice?  If  we  are  to  have  a  government, 
gentlemen,  that  government  must  be  administered  by  human  beings  like  ourselves. 
We  must  suppose  they  will  govern  themselves  by  the  same  motives.  We  must  not 
assume  that  whenever  we  put  power  in  their  hands.,  with  every  check  upon  that  power, 
that  the  wit  of  man  can  devise,  they  are  going  to  band  themselves  together  for  the 
destruction  of  their  own  country  and  of  every  interest  therein. 

In  this  case  to  which  I  refer,  the  same  Justice  Brewer,  uses  this  language: 

The  argument  is  in  substance — 

This  was  an  argument  against  conferring  any  of  these  powers  upon  the  railroad 

commission  of  Texas. 

The  argument  is,  in  substance,  that  railroad  companies  are  bound  to  submit  to  the 
rates  prescribed  until  in  a  direct  proceeding  there  has  been  a  final  adjudication  that 
the  rates  are  unreasonable  v;hich  final  adjudication,  in  the  nature  of  things,  cannot  be 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


214:3 


reached  for  a  length  of  time;  but  meanwhile  a  failure  to  obey  those  regulations  exposes 
the  company,  for  each  separate  fare  or  freight  exacted  in  excess  of  the  prescribed  rate, 
to  a  penalty  so  enormous  as  in  a  few  days  to  roll  up  a  sum  far  above  the  entire  value 
of  the  property;  that  even  if  in  a  direct  proceeding  the  rates  should  be  adjudged 
unreasonable,  there  is  nothing  to  prevent  the  commission  from  re-establishing  rates 
but  slightly  changed,  but  still  unreasonable,  to  set  aside  which  requires  a  new  suit, 
with  its  length  of  delay;  and  thus,  as  is  claimed,  the  railroad  companies  are  tied  hand 
and  foot  and  bound  to  submit  to  whatever  illegal,  unreasonable  and  oppressive  regula- 
tions prescribed  by  the  commission. 

That  was  the  argument  against  it;  but,  says  the  learned  Justice: 

It  is  enough  to  say  in  respect  to  these  matters,  at  least  so  far  as  this  case  is  con- 
cerned, that  it  is  not  to  be  supposed  that  the  Legislature  of  any  State  or  a  commission 
appointed  under  the  authority  of  any  State,  will  ever  engage  in  a  deliberate  attempt  to 
cripple  or  destroy  institutions  of  such  great  value  to  the  community  as  the  railroad, 
but  will  always  act  with  the  sincere  purpose  of  doing  justice  to  the  owners  of  railroad 
property  as  well  as  other  Individuals. 

I  make  that  same  answer  here;  but  I  do  not  ask  my  friends  on  the  other  side  to 
rest  satisfied  with  that  answer.  In  Texas  it  appears  that  the  railroads  have  no  means 
of  suspending  the  regulation  of  charges  prescribed  by  that  tribunal,  the  conunission, 
but  when  the  commission  fixes  a  rate,  the  railroad  must  adopt  it  until  they  have  it  re- 
versed. We  prescribe  here  that  when  the  railroad  appeals,  it  can  give  a  suspending 
fund  and  go  on  charging  its  own  rate  and  cannot  be  hurt  until  the  Court  of  Appeals 
has  acted  upon  it,  provided  that  they  have  to  refund  if  they  fail. 

I  call  your  attention,  gentlemen,  to  the  fact  that  the  railroads  were  complaining 
of  the  very  identical  thing  that  ihey  have  themselves  so  sucessfully  worked  through 
the  instrumentality  of  the  Interstate  Commerce  Commission.  That  Commission  has  no 
power  to  fix  a  rate,  but  merely  to  denounce  it;  and  although  20  cents  might  he  a 
reasonable  rate,  and  the  railroad  was/«iiarging  50  cents,  after  years  of  litigation  and 
piles  of  money  being  spent  in  having  the  oO-cent  rate  declared  unreasonable,  the  rail- 
road would  turn  around  and  charge  a  49-cent  rate,  and  you  would  have  to  begin  at  the 
bottom  and  go  all  over  it  again;  and  they  are  failing  and  refusing  and  protesting  against 
the  possibility  under  the  most  improbable  circumstances,  of  having  to  take  one  single 
drop  of  that  medicine  that  they  have  been  thrusting  in  large  handfuls  down  the  throats 
of  the  suffering  people  of  this  country  for  years  gone  by. 

Now,  gentlemen,  as  to  these  rates.  I  wish  to  call  attention  to  a  distinction  which 
it  seems  several  of  my  friends  failed  to  observe.  As  I  pointed  out  to  you,  all  the  rules 
and  regulations  except  the  fixing  of  rates  that  can  be  made  by  this  commission  are 
subject  to  the  general  supervision  and  paramount  power  of  the  Legislature.  Some  of 
my  friends  got  the  provisions  of  subsection  L  mixed  up  with  that,  and  thought  the 
Legislature  could  not  enact  any  of  the  rules,  regulations  and  provisions  unless  the 
commission  joined  in  with  them;  but  if  you  will  read  it  you  will  see  that  subsection 
L  has  no  reference  in  any  way,  shape  or  form  to  the  power  of  the  Legislature  to  pre- 
scribe the  rules  or  regulations  for  the  government  of  railroad  companies. 

Subsection"  L  has  only  reference  to  the  power  of  the  Legislature  to  amend  the 
admlnstfative  sections  of  this  Constitution;  and  I  say  if  you  never  amend  this  Constitu- 
tion, if  you  are  never  called  upon  to  put  section  L  into  effect,  under  the  very  language 
of  the  Constitution  as  we  make  it  now,  without  any  amendment  b}'  virtue  of  subsection 
L,  the  absolute  power,  the  paramount  and  supreme  control  of  the.  Legislature  over  all 
rules,  regulations  and  requirements  of  railroads,  except  in  the  matter  of  rates,  is  left 
as  it  is  to-day,  and  they  can  legislate  on  that  subject  without  any  consent  or  inter- 
ference of  the  commission  in  any  way,  shape  or  form.  In  making  these  rules  and  regu- 
lations they  are  no  more  required  to  get  the  consent  of  the  commission  than  they  have 
to  get  the  consent  of  the  town  council  of  a  town  before  they  can  pass  any  general  law 
to  affect  them.    They  are  absolutely  untrammelled  in  the  smallest  particular  in  that 


4 


2444 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


respect,  and  therein  we  have  trusted  them  with  the  power  of  absolutely  tying  up  the 
hands  of  this  commission,  as  to  rules  and  regulations  of  the  railroad,  except  in  the 
matter  of  charges  and  classification  of  traffic. 

Mr.  William  A.  Anderson:  I  wish  to  ask  you  to  explain  the  effect  of  that  limita- 
tion as  to  whether  it  does  not  tie  the  hands  of  the  General  Assembly  so  that  it  cannot 
pass  any  act  inconsistent  with  any  other  provision  of  this  Constitution  except  those  in 
the  sections  designated  in  the  subsection. 

Mr.  Braxton:  If  the  gentleman  will  indulge  me  I  will  endeavor  to  explain  that 
point. 

Gentlemen,  suppose  we  strike  out  subsection  L  absolutely.  Let  us  see  what  the 
effect  will  be,  and  then  we  can  see  more  clearly  what  the  effect  is  when  we  put  it  in. 
Omit  subsection  L  in  your  minds  just  for  the  present.  Assume  that,  and  v/hat  would  be 
the  effect?  The  effect  would  be  that  no  part  of  this  Constitution  could  be  amended 
even  in  the  administrative  sections  except  by  the  regular  method  of  amending  a  Con- 
stitution, but  that  the  Constitution,  even  in  all  those  administrative  sections,  as  well  as 
in  the  fundamental  ones,  would  have  to  remain  the  law  of  the  land  until  they  were 
amended  by  regular  constitutional  provisions  of  two  consecutive  Legislatures  and  a 
vote  of  the  people. 

Now,  suppose  they  never  amended  it,  and  we  take  it  just  as  we  have  it  here.  If 
you  will  turn  to  page  8,  towards  the  latter  part  of  subsection  B,  you  will  see  this  lan- 
guage : 

The  authority  of  the  said  commission,  subject  to  review  on  appeal,  as  hereinafter 
provided,  to  prescribe  rates,  charges  and  classification  of  rates  for  transportation  and 
transmission  companies  shall  be  paramount,  but — 

Mark  you — 

But  if  authority  to  prescribe  any  other  rutes,  regulations  or  requirements  for  such 
companies  shall  be  subject  to  the  superior  authority  of  the  General  Assembly  to  legislate 
thereon  by  general  lav/s — 

Now,  assume  that  subsection  L  is  not  in  there  at  all,  can  there  be  any  question — • 
and  if  there  is,  I  will  be  glad  to  change  the  expression  of  the  language — that  that 
means  exactly  what  it  says;  that  the  entire  power  of  the  commission  to  make  any  rule, 
regulation  or  requirement  other  than  that  fixing  charges  is  subject  to  the  superior 
authority  of  the  General  Assembly  to  legislate  thereon.  What  is  that  superior  author- 
ity? It  is  what  it  is  to-day.  You  look  in  vain  through  here  to  find  anything  showing 
that  the  Legislature  has  not  and  will  not  continue  to  have  the  same  authority  which 
exists  in  it  to-day  to  legislate  by  general  laws  as  it  chooses. 

Mr.  Robertson:  .-Following  up  the  question  that  the  gentleman  from  Rockbridge 
asked  you,  I  should  like  to  know  how  the  Legislature  could  control  this  commission  in 
some  special  case.    As  I  understand,  they  can  make  the  general  laws? 

Mr.  Braxton:    Yes,  sir. 

Mr.  Robertson:  Prescribing  general  regulations.  Suppose  this  commission,  in  the 
exercise  of  those  powers  of  regulation  outside  of  the  rate-making  power,  should  require 
the  Southern  Railway  company,  for  instance,  to  furnish  greater  facilities  in  the  way 
of  freight  cars,  which  did  not  apply  to  anything  except  the  Southern  Railway;  how 
could  the  Legislature,  even  though  that  were  an  unwise  and  an  unjust  exercise  of 
power,  control  this  commission  in  respect  to  a  particular  matter  of  this  kind? 

Mr.  Braxton:  I  am  sure  of  that,  and  in  answering  I  will  endeavor,  as  far  as  I  can, 
to  give  my  friend  the  information,  if  I  can  do  so,  because  I  am  sure  he  is  only  actuated 
by  a  sincere  desire  to  understand  this  matter. 

The  power  of  this  commission — I  may  repeat  myself  a  little,  but  I  do  so  in  order  to 
get  a  consecutive  line  of  thought — to  make  any  of  these  rules  and  regulations  is  very 
much  like  the  power  of  a  town  council  to  enact  ordinances.    It  is  possible  for  the 


DEBATES  OE  THE  C OXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


.2445 


Legislature  to  intervene  at  any  moment  at  any  time  that  a  town  council  undertakes  to 
enact  unreasonable  and  an  unwise  ordinance  and  say,  '-You  shan't  enact  this  particular 
ordinance."  It  is  presumed  from  time  to  time,  as  experience  may  demonstrate,  gene- 
ral laws  will  be  enacted  which  will  so  hedge  about  the  power  that  it  cannot  be  greatly 
abused,  and  so  I  assume  from  time  to  time,  if  there  should  be  any  danger — and  I  think 
there  will  not  be — the  power  of  this  commission  to  enact  rules  and  regulations  of  the 
kind  which  my  friend  indicates  will  be  hedged  about  by  general  statute.  But  suppose 
before  that  thing  is  done,  before  it  can  be  done,  the  commission  goes  to  work  and 
passes  an  unreasonable  or  an  unjust  or  an  unwise  regulation  for  the  regulation  of  the 
company,  then  I  say  the  company  has  for  its  protection  the  Supreme  Court  of  this  land, 
to  say  whether  that  rule  or  regulation  is  reasonable,  just  and  legal.  If  it  is  not,  it 
falls  to  the  ground,  because  the  action  of  the  commission  will  be  reversed  by  the 
Supreme  Court:  but  if  the  commission  itself  thinks  in  its  wisdom  that  rule  is  just  and 
reasonable,  and  if  the  Supreme  Court  of  the  land  in  its  wisdom  thinks  it  is  just  and 
reasonable,  I  say  that  is  all  the  criterion  we  can  apply  to  it  to  say  that  as  a  matter  of 
fact  it  is  just  and  reasonable,  and  that  the  railroads  will  have  to  comply  with  it  be- 
cause they  concede  they  must  comply  with  it  if  it  is  just  and  if  it  is  reasonable. 

But  beyond  and  above  all  that  I  will  say  to  my  friend  you  have  the  Supreme  Court 
of  the  United  States.  If  we  invade  either  through  our  courts,  through  our  commission 
or  through  our  Legislature,  or  all  of  them  combined,  any  of  the  rights  of  this  company 
which  we  have  not  the  power  to  invade  or  the  right  to  invade,  the  Supreme  Court  of 
the  United  States  will  protect  them  in  it. 

Therefore,  in  answer  to  my  friend's  question,  I  say  to  him  that  if  this  commission 
should  undertake  to  enact  any  such  rule  or  regulation  as  he  suggests,  the  question 
arises  at  once,  is  it  a  just  and  reasonable  one,  or  it  it  not?  If  it  is  not,  the  Supreme 
Court  sets  it  aside,  and  it  is  a  nullity.  If  it  is,  the  railroads  themselves  admit  that  they 
ought  to  follow  it. 

Mr.  Robertson:  I  understand  that  the  amendment  you  offered  the  other  day  pro- 
vided for  an  appeal. 

Mr.  Braxton:  Yes,  sir.  Strictly  speaking,  the  Legislature  cannot  remedy  a  par- 
ticular and  specific  abuse.  They  can  pass  a  law  which  will  say  they  shall  not  repeat  it, 
or  a  law  which  will  rescind  it,  but  of  course  they  cannot  remedy  the  thing  after  it  is 
done;  but  like  everything  else,  the  action  of  the  court  is  retroactive,  the  action  of 
the  Legislature  is  prospective.  The  Legislature  acts  to  prevent  injury  in  the  future. 
The  court  acts  to  correct  the  injuries  in  the  past;  and  therefore  I  shall  say  in  the 
specific  case  the  Legislature  cannot  offer  the  remedy;  the  remedy  would  be  in  the  court. 
But  to  prevent  a  repetition  of  that  injury  the  Legislature  could  pass  general  laws  that 
would  prevent  the  repetition  of  it. 

Mr.  Robertson:  To  that  extent  it  is  not  like  a  city  council,  which  passes  an  ordi- 
nance applicable  to  all  people  within  the  same  class.  What  I  want  to  get  at  is  how 
the  injustice  that  might  occur  under  that  can  be  corrected  by  these  general  laws.  You 
tie  the  Legislature  down  to  general  laws,  but  you  allow  this  body,  that  you  say  you 
propose  to  give  legislative  power  to,  in  place  of  the  Legislature,  to  pass  the  most 
specific  kind  of  laws  in  reference  to  the  operation  of  some  particular  railroad. 

Mr.  Braxton:  I  will  endeavor  to  answer  that  in  this  way:  Suppose  the  specific 
powers  which  my  friend  spoke  of  just  now  existed  in  the  commission,  requiring  a 
specific  number  of  trains  to  be  run.  I  myself  think  they  ought  to  have  the  power  not 
of  saying  exactly  how  many  trains  shall  be  run,  but  of  requiring  the  road  to  render 
efficient  service  to  the  people  along  the  line  of  it.  But  suppose  I  am  wrong  about  that. 
The  Legislature  would  pass  a  law  saying  that  hereafter  the  corporation  commission 
shall  not  have  power  to  prescribe  the  number  of  trains  that  any  road  shall  run.  Sup- 
pose it  consisted  in  an  act  of  this  sort,  and  in  order  to  make  myself  a  little  clearer,  I 
will  have  to  state  a  somewhat  absurd  proposition,  btit  merely  to  accentuate  my  view: 
The  Chesapeake  and  Ohio  Railway  Company  some  years  ago  adopted  the  color  of 


2446 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


orange  to  paint  all  of  their  property— their  section  houses,  depots,  cars,  etc.  Suppose 
this  railroad  commission  would  be  so  absurd  as  to  pass  a  rule  saying  the  Chesapeake 
and  Ohio  Railway  Company  is  required  to  at  once  paint  all  of  its  property  olive  in- 
stead of  orange,  what  would  be  the  remedy  for  that.  In  the  first  place,  they  could 
not  pass  that  ordinance  until  they  had  first  summoned  the  railroad  company  to 
show  cause  against  it.  In  the  second  place  if  a  railroad  refuse  to  obey 
it  they  would  have  to  summon  the  railroad  company  again,  and  it  would 
be  again  given  an  opportunity  to  show  cause  against  it.  If  the  commission 
persisted  in  the  order,  the  railroad  company  could  go  to  the  courts  and  could  make  this 
defense  in  the  court,  "This  rule  and  regulation  is  an  unjust  and  an  unreasonable  one. 
It  undertakes  to  affect  us  in  a  duty  in  which  the  public  has  no  interest.  It  cannot  pos- 
sibly affect  the  public,  whether  our  cars  are  painted  orange  or  olive,  and  therefore 
the  commission  in  passing  this  regulation  passed  one  that  was  unjust  and  unreason- 
able, and  did  not  affect  us  in  the  performance  of  our  public  duties."  The  court  would 
set  it  aside.  Now  we  come  to  the  Legislature.  If  the  Legislature  thought  there  was 
any  danger  of  that  absurdity  being  repeated,  they  could  not  make  a  particular  act 
to  remedy  that  particular  case,  because  the  court  must  furnish  a  remedy  for  what 
has  already  been  done.  The  Legislature  can  furnish  a  preventive  for  what 
may  be  done.  The  Legislature  would  pass  a  general  law.  "Be  it  enacted,  that 
hereafter  the  railroad  commission  shall  have  no  power  to  pass  any  ordinance  or  rule 
or  regulation  of  any  railroad  company  prescribing  the  color  that  it  must  paint  its 
cars;  "  and,  not  only  would  the  railroad  company  get  the  specific  relief,  but  the  Legis- 
lature would  prevent  the  possibility  of  that  trouble  ever  arising  again. 

Mr.  Robertson:  Would  not  that  defeat  the  object  of  this  law,  if  the  Legislature 
passed  a  general  law  which  prohibited  them  from  exercising  the  power? 

Mr.  Braxton:  No,  sir.  My  friend  will  remember  that  I  stated  that  while  v>^e  put 
them  over  and  above  and  beyond  the  Legislatvire  in  the  matter  of  fixing  rates,  we 
left  them  absolutely  at  the  mercy  of  the  Legislature  in  the  fixing  of  any  other  rule 
or  regulation  except  that,  in  the  hope  and  belief  that  the  Legislature  would  not  abuse 
that;  and  we  took  from  the  Legislature  the  power  to  fix  rates  simply  because  it  was 
a  power  v\'hich  it  was  impossible  for  them  to  exercise. 

I  will  concede,  as  I  have  said  again  and  again,  that  if  the  Legislature  chose  to  do 
so,  it  could  absolutely  tie  up  the  hands  of  this  commission  as  to  its  power  to  make  any 
rule  or  regulation  about  a  railroad  company  except  its  rates  or  charges.  I  felt  we 
could  risk  it,  for  the  reason,  as  I  stated  before,  that  the  power  of  the  railroads  to  de- 
feat affirmative  legislation  in  the  interests  of  the  people,  was  very  much  greater  than 
their  power  to  enact  legislation  against  the  interest  of  the  people,  and  that  when  we  have 
once  established  this  and  put  it  into  effect,  I  did  not  believe  the  Legislature  could  ever  be 
so  manipulated,  imposed  upon,  tampered  with  or  befooled  by  the  railroads  as  to  under- 
take to  tie  up  their  hands  and  affirmatively  take  from  the  commission  a  power  which 
experience  may  show  it  was  wise  to  give  them;  but  if  they  abuse  that  power  in  any 
respect,  the  Legislature  is  left  entirely  supreme,  and  with  all  the  power  it  has  to-day. 
So  I  say  it  is  a  mistake  to  imagine  that  the  railroads  are  in  any  danger  from  this  power 
to  regulate  and  control  them;  that  we  have  the  courts  behind  them  to  correct  any  evil 
that  may  be  done;  and  we  have  the  Legislature  behind  them  to  prevent  any  evil  that 
may  be  done  in  the  future. 

Mr.  Parks:  If  the  gentleman  will  permit  me,  I  desire  to  call  his  attention  to  the 
fact  that  the  section  in  the  legislative  report  prohibiting  special  legislation  in  refer- 
ence to  wharves,  ferries,  bridges,  roads  and  turnpikes  was  stricken  out  and  is  not 
the  law  now. 

]\Ir.  Braxton:  I  say  the  Legislature  would  correct  it  if  in  the  nature  of  things  it 
was  possible  to  correct  it. 

Mr.  Kendall:  I  would  suggest  to  my  friend  that  the  decision  in  the  case  from 
which  he  quoted,  in  153,  U.  S.,  shows  that  the  Supreme  Court  would  set  its  hand 
upon  any  possible  abuse  by  the  commission  of  the  power  granted  to  it. 


LZEATE5  or  THE  COZN'STIirTIO^'AL  C02^"TZ^"TI0^'  OP  VIHGIXIA,  2^47 

Mr.  O'FIaheriy:  I  Tvish  to  ask  the  chairman  of  the  coi:inii"ee  this  c-iestion:  If 
this  provision  should  be  adopted,  as  it  is  now  reported  on  page  7,  in  case  the  com- 
mission in  its  discretion  should  see  fit  to  say  that  a  certain  nmnoer  of  trains  should 
he  run  from  the  city  of  Staunton  to  the  city  of  Alexandria,  passing  through  the  to^m 
of  Front  Royal  over  the  Southern  railroad,  &c.,  a  route  with  which  you  are  acouainted, 
and  they  should  say  that  the  facilities  and  conTeniences  of  the  peopie  of  the  Shenan- 
doah Valley  reouire  that  a  certain  number  of  trains  -htu:-:  he  run,  and  that  com- 
mission should  say  that  that  number  of  trains  shouii  ::~  run,  could  the  Legisla- 
ture turn  around  and  say  that  this  commission  could  not  regulate  the  number  of  trains; 
and  whether,  that  being  tr-ie  in  a  specific  case,  it  would  be  true  in  any  other  case. 

Mr.  Braxton:  I  —ill  answer  my  friend  by  saying  that  in  the  first  place  I  think 
the  authorities  are  absolutely  orerwhelming  that  the  power  is  in  the  State  to  recuire 
any  railroad  to  operate  enough  trains  along  it  to  properly  ser~e  the  public  that  is 
tributary  t.o  that  road.  That  power  -^hich  is  in  the  State  we  place  in  the  hands  of 
this  commission  as  an  efficient  arm  of  the  State  to  exercise  that  power,  subject  to  all 
the  restrictions  and  provisions  and  safeguards  I  have  attempted  to  point  out.  Because 
we  have  the  right  to  make  reasonable  rjles  and  regulations  for  the  number  of  trains 
run,  it  does  not  follow  that  we  have  the  right  arbitrarily  to  make  unreasonable  or 
unjust  rales  for  it.  K  in  the  case  my  friend  suggests  the  commission  sho'uLd  say  that 
a  given  road  should  run  a  certain  number  of  trains,  the  question  would  arise  at  once, 
hi  that  a  reasonable  exercise  of  that  power,  or  is  it  an  unjust  and  unreasonable  exer- 
cise of  it?  If,  after  two  hearings  before  the  commission,  that  railroad  could  not  pre- 
vail on  the  commission  to  think  it  was  an  abuse  and  an  ^unreasonable  reg^jLlation,  it 
could  go  to  the  court,  and  if  it  is  not  satisfied  with  the  courts  here,  it  can  go  to  the 
Supreme  Court  of  the  ITnited  States,  and  if  the  commission  and  the  Supreme  Court 
of  our  State  and  the  Supreme  Court  of  the  United  States  unite  in  saying  that  the 
requirement  as  to  the  number  of  trains  is  reasonable  and  just  for  all  practical  pur- 
poses, it  would  be  considered  reasona:'       .    yist,  whatever  it  may  be  in  the  abstract. 

The  remedy  there  would  be  throuin  inr  courts,  not  through  the  Legislature,  but 
as  I  attempted  to  show  just  now,  if  the  Legislature,  from  experience,  thought  this 
power  of  prescribing  the  number  of  trains  was  a  dangerous  one  to  leave  to  the  com- 
mission, and  should  be  retained  for  themselves.  It  would  be  perfectly  in  the  nower 
of  the  Legislature  to  enact  a  law  that  hereafter  and  from  this  time  forth  the  commis- 
sion shall  not  have  power  to  prescribe  the  number  of  trains  that  any  railroad  shall  run, 
but  so  far  as  that  is  concerned,  and  the  regulation  of  the  number  of  trains  is  concerned, 
we,  the  Legislature,  will  retain  that  to  ourselves:  and  if  the  commission  did  abuse  its 
powers,  the  particular  abuse  could  be  corrected  by  the  court,  and  the  repetition  of  it 
could  be  prevented  by  the  Legislature. 

Mr.  O'Tlaherty:  I  wish  to  say  to  my  friend  that  while  I  understand  his  answer, 
I  cannot  agree  that  it  is  true  ijnder  the  language  here;  and  if  that  is  what  the  com- 
mittee intended,  I  should  like  very  much  to  make  it  so  plain  that  there  can  be  no 
doubt  about  it.  The  language  on  page  7.  subsection  b,  is  "and  shall  require  them  to 
establish  and  maintain  all  such  public  service  facilities  and  conveniences.'"  That  gives 
them  absolute  power,  it  seems  to  me,  and  the  Legislature  could  not  interfere  with  it. 

Mr.  Braxton:  I  will  say  to  my  friend  that  in  construing  this  instrument,  just  as 
in  construing  every  other  instrument,  you  must  read  the  whole  of  it  and  construe  it 
altogether,  one  part  of  it  regulating,  limiting,  expounding  and  explaining  the  other 
part,  and  that  you  cannot  pick  out  an  isolated  sentence  and  undertake  to  constme  the 
eSect  of  the  instrument  by  the  language  used  there,  and  ignore  subsequent  language 
which  is  put  there  to  limit  and  restrain.  If  we  stopped  at  the  part  that  my  friend 
refers  to,  his  criticism  might  be  trie,  but  if  he  will  turn  over  one  single  page,  he  will 
find  that  this  power,  which  cn  page  7  is  given  to  them  to  make  ail  these  regulations 
and  rules,  is  said  on  page  S  to  be  subject  to  the  paramount  power  of  the  Legislature 
to  legislate  thereon  by  general  laws. 


^'448 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  Thorn:  I  wi&h  to  ask  whether  your  argument  as  to  the  reasonableness  of  these 
requirements  applies  under  the  language  of  your  provision  where  the  test  is  not  made 
the  reasonableness  of  the  requirement,  but  what  the  commission  may  deem  to  be 
reasonable. 

Mr.  Braxton:    I  have  treated  it  in  an  interlineation. 

Mr.  Thom:    I  hope  you  will  call  attention  to  it  when  you  reach  it. 

Mr.  Braxton:  Mr.  Chairman,  as  they  say  in  France,  let  us  return  to  our  mutton. 
I  do  not  mean  to  say  I  could  call  the  gentleman  from  Rockbridge  (Mr.  Anderson)  my 
mutton;  but  let  us  go  back  to  the  question  he  asks  as  to  subsection  L. 

I  have  endeavored  to  point  out  to  you  that  if  subsection  L  were  not  in  there,  this 
unlimited  power  of  the  Legislature  to  legislate  on  these  subjects  remains.  I  hope  I 
have  been  able  to  make  myself  clear.  I  will  not  go  over  that.  If  that  be  true,  with 
subsection  L  eliminated,  how  far  does  the  insertion  of  subsection  L  change  it?  Look 
at  subsection  L  and  you  will  find  that  it  has  no  reference  in  the  world  to  the  making 
or  rules  or  regulations  for  railroad  companies.  It  is  nothing  m.ore  nor  less  than  an  ad- 
ditional method  of  amending  a  certain  part  of  the  Constitution.  Making  rules  and 
regulations  for  the  railroad  companies  does  not  involve  an  amendment  of  the  Consti- 
tution because  the  Constitution  on  its  face  says  they  can  do  it;  but  if  any  part  of  these 
four  subsections  which  are  administrative  in  their  character,  and  which  apply  to  ap- 
peals to  the  Court  of  Appeals,  should  be  found  to  be  inefficient  or  unsatisfactory,  they 
can  be  amended  by  the  provisions  of  subsection  L,  and  that  requires  a  concurrence  of  the 
Corporation  Commission  in  lieu  of  the  concurrence  of  a  second  Legislature  and  a  vote 
of  the  people.  Instead  of  curtailing  the  power  of  the  Legislature,  it  enlarges  the  power 
of  the  Legislature.  It  provides  a  means  whereby  the  Legislature  can  amend  that  por- 
tion of  the  Constitution,  which  but  for  that  they  did  not  have  before. 

If  I  did  not  put  in  the  clauses  which  my  friend  refers  to  at  the  end  of  subsection  L, 
they  might,  in  amending  these  sections,  put  in  something  which  would  operate  as  an 
amendment  of  the  other  parts  of  the  Constitution,  which  I  do  not  propose  they  shall 
be  allowed  to  amend.  Therefore  I  say  in  amending  these  four  sections,  they  shall  so 
amend  them  that  the  amendments  shall  not  conflict  with  any  permanent  part  of  the 
Constitution  which  they  have  no  right  to  amend. 

I  trust  I  m.ake  myself  clear  to  my  friend. 

Mr.  William  A.  Anderson:  I  understood  the  section  to  mean  exactly  what  the  chair- 
man of  the  committee  states  is  his  construction  of  it,  I  think  it  has  that  effect,  and 
that  this  article,  if  adopted,  cannot  be  amended  by  the  General  Assembly  or  changed 
toy  the  General  Ass.embly  in  any  other  way  or  as  to  any  other  extent  than  is  prescribed 
in  that  section. 

Mr.  Braxton:  Now,  Mr.  Chairman,  my  friend  from  Norfolk  (Mr.  Thom)  referred 
to  the  fact  that  a  recent  decision  of  the  Supreme  Court  had  had  the  effect  to  curtail 
the  effectiveness  of  certain  words  in  the  long  and  short  haul  clause,  as  we  have  it  in  this 
connection.  I  beg  again  that  you  will  not  confuse  in  your  mind  the  long  and  short 
haul  clause,  nor  the  paralleling  of  railroads  clause,  nor  any  other  clause,  with  the  clause 
establishing  the  corporation  commission.  It  has  no  more  to  do  with  the  establishment 
of  that  commission  than  any  substantive  statute  that  the  Legislature  may  pass  has  to 
do  with  the  constitution  of  the  Court  of  Appeals.  This  is  a  tribunal  we  are  establish- 
ing for  the  enforcement  of  these  substantive  provisions;  and  whether  those  substantive 
provisions  are  modified,  added  to  or  subtracted  from,  the  tribunal  which  is  established 
for  the  enforcement  of  them  remains  unimpaired. 

But,  as  my  friend  has  referred  to  it,  I  will  call  your  attention  to  the  effect  of  it. 
The  long  and  short  haul  clause  as  we  had  provided  it,  says  in  effect  that,  without  the 
consent  of  the  commission,  no  greater  sum  or  charge  should  be  made  for  hauling  over 
a  shorter  than  over  a  longer  distance  along  the  same  line  and  in  the  same  direction, 
the  shorter  being  included  in  the  longer,  whether  the  longer  distance  was  entirely  within 
the  State  or  not.    It  was  the  opinion  of  many  gentlemen  that  that  provision  was  com- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2U9 


petent;  that  we  did  not  undertake  to  say  what  their  charge  should  be  over  the  interstate 
haul,  but  leaving  them  to  fix  that  charge  for  themselves,  we  simply  said  that  the  charge 
on  their  shorter  haul,  that  was  entirely  within  the  State,  should  not  be  greater  than 
on  the  longer  haul,  that  was  without  the  State;  just  as  I  would  say  to  my  friend  from 
Hichmond,  if  I  wished  to  employ  him  as  my  counsel,  "  You  may  charge  my  friend  from 
Rockbridge  what  you  choose.  I  do  not  care  what  you  charge  him.  I  simply  stipulate 
that  you  shall  not  charge  me  any  more."  That  is  not  controlling  the  charge  he  puts 
on  the  gentleman  from  Rockbridge.  It  simply  says,  "  Be  that  charge  greater  or  less, 
you  shall  not  charge  me  any  more." 

We  say  in  this  report  that  we  cannot  control  your  interstate  charge;  we  leave  it 
to  you  to  make  it  what  you  choose,  but  when  you  have  made  it,  you  shall  not  charge 
more  for  hauling  in  the  State  than  you  shall  charge  for  hauling  on  the  lines  both  in 
and  outside  the  State.  I  will  state  to  the  committee  that,  at  the  time  that  provision 
w^as  put  in  there,  the  question  arose  and  was  discussed  us  as  to  whether  it  was  com- 
petent to  do  it.  At  that  time  it  was  res  Integra;  it  was  a  question  which  had  never 
been  determined  before.  Some  thought  it  could  be  done,  and  some  thought  it  could  not 
be  done.  All  agreed  that  if  you  put  it  in  there  it  miight  do  good  and  could  not  do  harm; 
that  if  the  court  should  hold  that  both  long  and  short  haul  should  be  in  the  State,  the 
insertion  of  this  provision  whereby  we  had  attempted  to  include  an  interstate  line  in  the 
long  haul  would  not  affect  the  efficiency  of  the  provision,  but  would  simply  have  the 
effect  of  saying  that,  so  far  as  it  applied  to  an  interstate  haul,  it  was  unconstitutional, 
but  so  far  as  it  applied  to  intra-State  hauls,  it  would  remain  constitutional. 

Since  that  report  has  been  filed,  the  case  of  the  Louisville  and  Nashville  Railway 
Company  vs.  Eubank  has  been  decided  by  the  Supreme  Court,  on  the  27th  of  January,  a 
few  days  ago,  and  that  court,  by  a  divided  court,  held  that  both  the  long  haul  and  the 
short  haul  should  be  in  the  same  State:  but  at  the  same  time  it  reiterated  an  opinion  it 
had  rendered  just  a  week  before,  that  the  Kentticltv'  Constitution,  which  it  was  then 
construing,  remained  as  good,  a  va,lid  and  an  effective  provision  as  to  hauls,  both  of 
which  were  in  the  State,  and  was  invalid  only  as  to  the  part  which  extended  beyond  the 
State.  By  adopting  the  provision  v\'e  did  adopt,  we  put  ourselves  in  the  position  to  get 
the  advantage  of  the  decision  if  it  had  been  otherwise,  and  we  ran  no  risk  of  losing  any- 
thing it  should  be  decided  as  it  turned  out  to  be.  No  less  distinguished  men  than  Jus- 
tice Brewer  and  Justice  Gray,  of  the  Supreme  Court,  dissented,  in  a  most  vigorous 
opinion,  and  held,  as  I  myself  and  many  others  on  our  committee  thought  ought  to  have 
been  held,  that  the  long  haul  might  be  an  interstate  haul  as  well  as  an  intra-State  haul; 
but  that  did  not  invalidate  this  provision  at  all.  It  merely  curtailed  the  effect  of  its 
operation,  and  left  it  just  as  valid  and  just  as  effective  as  if  vre  had  not  put  it  in  there; 
but,  in  view  of  the  fact  that  the  matter  is  now  settled,  is  no  longer  an  open  question,  it 
would  be  useless  to  leave  in  an  expression  as  to  whether  the  long  haul  was  entirely  in 
the  State  or  not,  and  as  mere  surplusage  your  committee  will  recommend  that  it  be 
stricken  out. 

Now,  Mr.  Chairman,  one  thing  more.  My  friend  from  Norfolk,  in  pomtfng  out  the 
dangers  of  undertaking  to  do  anything  in  this  line,  because,  forsooth,  you  might  make  a 
slip,  says  that  there  were  no  less  than  five  drafts  of  this  measure  made  before  it  was 
finally  agreed  upon.  I  have  never  known  an  accurate  calculation  of  it  made,  but  I  will 
say  in  general  that,  as  to  the  suffrage  plan  which  was  finally  agreed  upon  by  the  Com- 
mittee on  the  Elective  Franchise,  there  were  probably  five  hundred  drafts  made  before 
it  was  finally  agreed  upon.  My  friend  from  Norfolk  turned  entirely  around  from  the 
position  he  first  took  upon  it,  and,  having  at  the  origin  of  it  made  a  most  urgent  appeal, 
such  as  we  all  know  he  can  make,  for  one  doctrine,  ultimately,  upon  maturer  consider- 
ation and  further  thought,  he  concluded  he  was  wrong  and  made  one  of  the  most  power- 
ful appeals  I  ever  heard  in  my  life  in  support  of  exactly  the  opposite  doctrine. 

Now,  is  there  a  man  on  this  floor  who  would  get  up  and  say  that  because  of  that 
he  is  incapable  of  legislating,  that  that  bespeaks  a  mind  so  uncertain,  that  he  knows  so 


2450 


DEBATES  OF  THE  C0>^STITUTI01^AL  CONVENTION  OE  VIRGINIA. 


little  of  his  own  mind,  that  the  whole  subject  of  suffrage  should  be  left  to  the  Legisla- 
ture because  it  is  a  dangerous  thing  to  deal  with?  I  think  not.  I  say,  sir,  there  never 
was  a  paper  made  that  was  worth  perpetuation,  either  as  a  Constitutional  enactment,  or 
as  a  statute,  that  was  given  birth  to,  as  my  friend  says  this  should  have  been,  like 
Minerva,  springing  full-armed  and  full-fledged  and  ready  for  war,  right  from  the  mind 
which  first  conceived  it.  ,Who  ever  heard  of  anybody  sitting  down  and  writing  off  a 
Constitution  and  its  being  adopted  on  the  first  draft  of  it? 

Have  we  not  been  here  for  eighf  or  nine  months  studying,  debating,  modifying  our 
views— a  living  illustration  of  the  fact  that  we  must  work  out  all  of  these  provisions 
with  study,  with  thought,  with  reflection,  and  that  we  must  modify  them  as  our  views 
are  modified.  But  does  that  mean  that,  because  we  cannot  immediately,  in  five  minutes, 
dictate  a  Constitution  to  the  typewriter,  that  we  should  therefore  give  up  the  whole  thing 
in  despair?    It  is  useless,  gentlemen,  for  us  to  argue  on  that. 

They  talk  about  the  legislative  detail.  What  is  more  important  than  suffrage,  the 
proper  settlement  of  which  constitutes  the  basic  foundation  of  our  government?  What 
could  be  more  disastrous  to  any  State  than  a  mistake  in  the  basic  law  which  fixes  its 
suffrage,  and  yet  on  that  all-important,  that  overwhelmingly  important  feature,  my 
friend  not  only  puts  in  a  constitutional  provision,  but  he  goes  into  the  very  infinitude  of 
detail  as  to  how  it  shall  be  carried  out  and  as  to  how  it  shall  be  enacted.  But  when  it 
eomes  to  prescribe  powers  in  general  terms  for  a  railroad  commission,  they  say  we  can- 
not risk  making  the  slightest  possible  mistake  in  it;  that  we  should  not  do  anything 
more  than,  with  bowed  head  and  bated  breath,  to  venture  to  suggest  that  in  some  future 
time  the  Legislature  might,  with  fear  and  trembling,  approach  this  holy  object  and  en- 
deavor to  "bell  the  cat." 

Gentlemen  of  the  committee,  it  has  been  said  that  we  are  multiplying  officers  and 
increasing  the  burdens  of  the  State.  If  you  will  look  at  section  5,  you  will  see  that  the 
work  of  the  commission  will  not  only  pay  its  own  expenses,  but  will  in  all  probability 
create  an  additional  revenue  over  that  which  we  now  have. 

It  provides  that  every  corporation  doing  business  in  the  State  of  Virginia,  whether 
it  be  domestic  or  whether  it  be  foreign,  shall,  once  a  year,  pay  the  small  fee  of  $5  for 
the  privilege  of  renewing  its  license  to  do  business.  I  am  told  by  the  late  Secretary  of 
the  Commonv/ealth,  that  while  there  can  be  no  accurate  figures  on  the  subject,  to  the 
best  of  his  belief,  and  he  thinks  he  is  substantially  correct,  there  are  from  seven  to  ten 
thousand  corporations  in  the  State  of  Virginia,  domestic  and  foreign,  either  actively 
engaged  in  business  or  who,  for  some  purpose  of  their  own,  are  keeping  alive  their 
charters. 

Five  dollars  a  year  per  corporation  cannot  hurt  the  weakest  of  them;  it  is  no  burden 
upon  them,  and  yet,  if  the  figures  of  the  Secretary  of  the  Commonwealth  are  approxi- 
mately correct,  it  will  yield  to  this  State,  without  interference  with  its  general  scheme 
of  finance,  from  a  source  from  which  the  State  never  heretofore  has  gotten  a  cent,  from 
thirty-five  to  fifty  thousand  dollars,  which  will  be  the  direct  result  of  the  work  of  this 
commission;  and  at  the  same  time  this  commission  will  be  engaged  in  collecting  and 
keeping  valuable  statistics  and  information  as  to  the  corporate  status  of  this  State,  of 
which  we  are  now  absolutely  in  need,  and  which  the  Committee  on  Finance  and  Taxa- 
tion will  tell  you  was  the  greatest  obstruction  they  had  in  providing  any  measures  look- 
ing to  legislation  affecting  corporations.  They  were  absolutely  in  the  dark,  and  they  did 
not  know  what  the  corporate  status  was. 

While  it  is  getting  out  such  statistics  which  every  State  ought  to  have,  while 
doing  the  v/ork  which  this  commission  is  intended  to  do,  it  will  be  earning  its  living, 
it  will  be  paying  and  supporting  itself  entirely  without  the  cost  of  a  cent  to  the  people 
of  this  Commonwealth,  and  in  all  probability  laying  up  an  additional  revenue  of  from 
fifteen  to  twenty  thousand  dollars  a  year  from  sources  from  which  revenue  was  never 
gotten  before. 

Now,  one  more  thing,  and  I  am  through.    It  is  said,  or  broadly  intimated,  that  we 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIE&IXIA. 


2451 


dare  not  do  this  thing,  that  we  dare  not  put  anything  in  the  Constitution  that  the  rail- 
roads will  oppose,  because,  forsooth,  the  railroads  will  come  here  and  defeat  the  Con- 
stitution. Has  the  time  come,  gentlemen  of  this  committee,  when  Virginia  men  will  fail 
to  legislate  and  make  laws  for  their  own  government  for  fear  the  railroads  will  come 
down  and  defeat  those  laws? 

I  say,  gentlemen  of  this  committee,  to  take  a  more  practical  view  of  it,  this  State, 
as  you  all  know,  is  divided  by  the  Blue  Ridge  Mountains  into  two  great  divisions  which 
are  exceedinly  different  one  from  another  in  their  material  interests  and  in  their  con- 
ditions. But  few  negroes  live  west  of  the  Blue  Ridge  mountains,  and  while  you  and  I 
may  know  that  the  negro  question  affects  the  State  at  large,  the  mass  of  the  people  who 
do  not  see  the  negroes  around  them  do  not  appreciate  the  fact;  and  I  tell  you  now,  and 
I  believe  the  great  majority  of  my  associates  from  west  of  the  Blue  Ridge  mountains 
will  sustain  me  in  this,  that  the  people  west  of  the  Blue  Ridge  mountains  are  not  par- 
ticularly interested  in  the  negro  question.  You  want  them  to  agree  to  submit  to  or 
adopt  a  Constitution  which  will  necessarily  restrict  the  manhood  suffrage  of  that  part 
of  the  State  as  well  as  this  part,  in  order  tc?  relieve  the  great  incubus  of  negro  domina- 
tion in  the  East,  and  I  heartily  concur  with  you  in  this.  But  I  tell  you,  gentlemen,  that 
those  people  are  not  going  to  make  a  sacrifice  to  cure  an  evil  which  they  do  not  appre- 
ciate, unless  you  give  them  the  thing  they  are  in  need  of,  that  is  economic  reform.  That 
is  a  thing  that  interests  them  more  than  suffrage.  They  want  their  taxes  limited  and 
reduced.  They  vrant  some  restraining  hand  put  upon  the  railroads  that  will  keep  the 
railroads  from  throttling  the  development  of  our  country  by  saying  it  shall  develop  just 
so  far  and  just  to  the  extent  we  choose  to  permit  it  to  develop."  They  want  some  re- 
straining law  put  upon  the  railroads  that  will  limit  to  some  extent  their  power  of  taxing 
the  people;  that  will  enable  branch  lines  to  be  built,  if  the  people  want  to  build  them, 
with  the  assurance  that  the  trunk  lines  will  have  to  give  them  justice  in  their  rates  and 
their  connections;  that  will  enable  the  men  who  have  coal  and  iron  on  their  land  to  sell 
ii  to  others  and  to  get  their  products  to  market,  whether,  in  the  opinion  of  the  railroad 
magnates,  the  markets  justify  it  or  not. 

Those  are  the  reliefs  which  the  people  west  of  the  Blue  Ridge  want.  That  is  where 
the  shoe  pinches  them.  They  have  the  most  beautiful  garden  spot  of  the  world,  and  they 
do  not  wish  to  be  controlled  by  those  railroad  magnates.  They  want  those  shackles 
struck  off  that  they  may  go  ahead  like  the  young  giants  that  they  are. 

And  I  say  you  will  find  they  will  submit  to  a  curtailment  of  manhood  suffrage  only 
if  you  will  give  them  relief  along  the  lines  they  wish,  and  they  demand  it,  and  instead 
of  this  provision  being  a  weight  upon  the  Constitution,  it  will  be  a  buoy,  it  will  be  a  cork, 
to  save  it.  It  will  be  a  recommendation  to  the  people  to  adopt  it.  It  will  enable  us  to 
go  to  the  people  west  of  the  Blue  Ridge  mountains  and  say  to  them,  "We  ask  you  to 
adopt  this  Constitution  to  relieve  us  of  negro  suffrage,  but,  at  the  same  time,  to  relieve 
both  you  and  us  from  railroad  domination  and  tyranny."  That  will  be  something  to 
recommend  it  to  them.    That  is  something  that  will  make  them  come  out  and  vote  for  it. 

You  will  find  that  if  you  do  not  do  this  thing,  the  very  taxes  which  you  now  think 
you  are  going  to  raise  out  of  the  railroads,  will  be  raised  out  of  your  own  people.  A 
year  or  two  ago,  in  order  to  raise  funds  to  conduct  the  Spanish  war,  the  Federal  Govern- 
ment laid  internal  revenue  taxes  on  various  subjects,  and  among  others  it  put  a  tax 
upon  express  companies,  and  I  ask  you,  gentlemen,  how  much  of  that  tax  did  the  express 
companies  ever  pay?  They  deliberately  went  to  work  and  passed  it  over  to  their  cus- 
tomers, and  made  every  man  who  shipped  an  express  package  pay  the  tax  on  it,  by  mak- 
ing him  furnish  the  stamp  for  it,  and  just  as  surely  as  that  was  done,  just  so  surely  will 
il  be  done  again  if  you  raise  the  taxes  on  the  railroads,  as  you  think  they  ought  to  be 
raised,  in  this  State,  unless  you  have  some  restraining  power  over  their  charges  on  local 
traffic — just  so  surely  will  they  pass  it  on  to  the  heads  of  the  people  who  deal  with  them 
in  their  local  business,  and  we  v,-ill  be  paying  those  taxes  ourselves. 

It  is  said,  however,  that  the  local  traffic  is  but  a  small  percentage  of  the  entire 


2-152 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


traffic  of  the  roads,  that  the  great  bulk  of  it  is  interstate  business.  While  it  is  true  that 
the  great  bulk  of  the  business  of  the  railroads  is  interstate,  the  very  large  percentage 
of  the  business  of  the  people  of  this  State  is  intrastate.  The  percentage  of  our  business 
that  is  interstate  is  very  much  greater  than  the  railroads  would  make  out,  because  a 
great  part  of  the  interstate  business  of  the  railroad  comes  from  out  the  State  and  passes 
through  the  State  and  does  not  affect  us  in  any  way,  shape  or  the  other.  The  coal  that 
comes  from  West  Virginia  which  is  shipped  abroad  through  Newport  News,  and 
the  business  that  comes  from  the  South  and  goes  through  Virginia  to  the  North,  does 
not  concern  us,  but  that  constitutes  the  great  bulk  of  the  railroad  business.  The  busi- 
ness that  we  can  control  is  the  business  of  the  State  of  Virginia,  the  intrastate  business, 
and  that  is  a  large  percentage  of  the  business  of  the  people  of  Virginia. 

Mr.  Chairman,  I  thank  this  committee  most  sincerely  and  most  cordially  for  the 
patience  with  which  they  have  given  me  their  attention,  and  before  leaving  this  subject, 
I  must  commend  to  your  favorable  consideration  the  long,  faithful  and  laborious  work  of 
my  associates  on  the  subcommittee  on  Corporations,  under  the  most  adverse  and  dis- 
couraging circumstances,  while  the  local  press  was  ridiculing  them  and  making  fun  of 
them,  and  predicting  sure  and  dire  defeat,  being  held  up  to  public  scorn  and  ridicule, 
and  being  called  anarchists  and  theorists,  they  have  worked  on  and  on  and 
they  have  not  spared  themselves,  but  they  have  labored,  and  they  have 
given  their  time,  and  they  have  laid  before  you  an  instrument  which  they 
think  worthy  of  your  consideration,  an  instrum-ent  which  we  verily  believe  will  proclaim 
the  dawn  of  a  new  era  in  this  State,  which  will  strike  off  the  shackles  which  have  kept 
us  in  the  rear  of  the  procession  of  prosperity,  and  which,  if  adopted,  will  enable  this 
State  once  again  to  assume  its  high  position  in  the  vanguard  of  modern  life,  which  is  its 
birthright. 

Mr.  Chairman,  let  us  not  be  scared  off  by  the  threats  of  attacks  by  plutocracy  upon 
us.  I  am  not  a  pessimist.  I  do  not  believe  the  time  has  come  that,  like  dumb,  driven 
cattle,  we  must  bow  our  head  to  the  yoke.  I  do  not  believe  that  the  manhood  of  old 
Virginia  can  be  so  scared  off  by  the  threats  of  railroad  interference  as  to  prevent  our 
adopting  laws  which  we  believe  to  be  for  our  good.  But:  if  it  were  true,  sir,  that  God,  in 
His  providence,  has  made  us  fall  upon  such  evil  days  let  us  not  survive  it,  but,  like  good 
men  and  true,  worthy  of  the  traditions  we  have  inherited,  if  we  must  surrender  our  in- 
dependence let  us  die  like  good  men,  with  our  faces  to  the  foe.  Let  us  never,  without  a 
struggle  to  prevent  it  submit  to  the  effort  of  the  strong  power  of  the  railroad  or  any 
other  set  of  men  to  deprive  us  of  our  liberty. 

Mr.  Chairman,  I  believe  if  the  good  people  of  this  State  know — and  they  will  know; 
they  will  be  told — of  this  threat  to  come  here  and  corrupt  us  and  prohibit  us  and  prevent 
us  from  adopting  a  good  Constitution  unless  it  suits  the  railroad  companies,  they  will 
rise  in  their  might  and  it  will  be  utterly  impossible  for  any  such  nefarious  attempt  to  be 
put  into  effect  here. 

Mr.  Chairman,  for  myself  I  will  say  that  I  have  no  feeling  of  hostility  towards  rail- 
roads, or  anybody  else,  as  long  as  they  act  properly  and  within  the  rules  of  propriety 
and  justice  and  of  law.  It  is  true  that  I  am  not  a  railroad  attorney,  but  in  the  course  of 
my  life  I  have  never  had  much  occasion  to  litigate  against  them.  Nothing  that  I  know 
of  has  ever  occurred  in  my  own  life  to  make  me  particulary  love  or  hate  them.  God 
knows  I  am  not  appealing  to  any  damagogic  sentiment,  for,  as  God  is  my  Judge,  I  ask 
no  more  reward  for  my  labors  in  this  Convention  if  they  are  thought  to  be  worthy  of 
reward  ,  than  to  be  permitted  to  return  to  those  cool,  sequestered  paths  of  life  for  which 
I  feel  Nature  intended  me,  and  along  which  I  hope  I  may  spend  the  residue  of  my  days. 

We  have  endeavored,  without  fear,  favor,  or  affection,  with  a  full  appreciation  of 
the  work  we  have  had  to  do,  to  frame  such  a  provision  that  right  and  justice  and  equity 
and  law  shall  be  permitted  hereafter  to  rule  in  this  State,  where  unbridled  financial  and 
economic  license,  where  arbitrary  will  and  caprice  have  held  undisputed  sway,  and  if  the 
fruit  of  our  labors  will  permit  us  to  see  the  fruition  of  that  hope  I  can,  with  a  heart  full 


DEBATES  OF  THE  COXSTITUIIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2453 


of  thanks  to  God  for  His  mighty  goodness  in  enabling  us  to  effect  this  welfare  for  our 
State,  say  to  my  old  Committee  on  Corporations  who  have  worked  and  labored  with  me 
from  fourteen  to  eighteen  hours  a  day  for  days  and  weeks  and  months  gone  by,  "Go 
home  and  rest;  the  long  day"s  work  is  done."    (Great  applause.) 

CORRECTION  OF  RECORD. 

Mr.  Stuart:  Mr.  Chairman,  I  rise  to  a  question  of  personal  privilege.  I  submitted 
some  figures  on  Wednesday  going  to  show  a  discrimination  against  the  producers  ol 
live  stock  in  Virginia  and  in  favor  of  Western  producers  of  live  stock.  I  used  figures 
which  I  obtained  at  the  office  of  the  railroad  commissioner  of  this  State,  which  were 
handed  to  me  and  which  were  in  the  handwriting  of  the  clerk  of  that  office,  Mr.  Akers. 
My  argument  and  deductions  were  based  upon  those  figures  which  were  submitted  to 
me,  and  which  I  had  a  right  to  believe  were  authentic. 

Just  at  that  point,  I  desire  to  say  that  Z\Ir.  Akers  claims  to  have  misunderstood  my 
inquiry.  My  only  comment  on  that  is  that  Mr.  Akers'  recollection  and  mine  are  wholly 
and  irreconcilably  at  variance,  but  I  think  it  but  proper  to  state  that  he  claims  to  have 
misunderstood  me. 

Now,  from  those  facts  and  figures  ^ased  on  those  rates  obtained  from  the  railroad 
commissioner's  office,  I  showed  those  discriminations  amounted  to  $15.70  per  car  on  live 
stock  against  the  producer  in  Southwest  Virginia  and  in  favor  of  the  producer  in  the 
West.  I  have  Deen  since  informed  by  some  gentlemen  representing  both  the  Norfolk 
and  Western  Kailway  and  the  Chesapeake  and  Ohio  Railway  that  on  the  13th  day  of 
October,  1900,  after  the  cattle  shipping  of  the  year  1900  was  over,  a  joint  rate  was  agreed 
upon  between  the  Norfolk  and  Western  Railway  and  the  Chesapeake  and  Ohio  Railway 
of  $>55  per  car,  which  was  a  through  rate  from  Southwestern  Virginia  points  to  Newport 
News  on  export  cattle.  I  wish  further  to  state,  in  all  fairness  and  in  perfect  fairness, 
the  exact  facts,  and  all  the  facts,  in  this  connection.  I  must  say  that  this  rate  w^as  one 
which  the  people  of  my  section  of  the  State  had  not  been  apprized  of,  so  far  as  I  know. 
The  fact  is  the  people  down  there  have  been  selling  their  entire  product  for  export  to 
the  large  dealers  of  Chicago  and  New  York.  The  time  was  when  they  shipped  their 
own  product,  and  it  was  then  that  the  producer  was  brought  face  to  face  with  the  rail- 
road authorities,  and  it  was  then  that  this  discrimination  that  I  complained  of  did  exist, 
and,  I  am  prepared  to  say  continued  to  exist  until  the  13th  of  October,  1900. 

Now^  about  this  time  the  large  shippers  of  Chicago  engaged,  for  a  series  of  years  or 
a  term  of  years,  all  the  cattle  carrying  trans-Atlantic  steamers  plying  between  Newport 
News  and  Liverpool  and  London,  and  it  was  almost  contemporaneous  with  that  transac- 
tion that  this  rate  was  reduced;  and  I  say  it  was  reduced  without  any  public  knowledge, 
so  far  as  I  am  informed,  and  I  try  to  keep  posted  on  things  affecting  my  own  business 
and  the  business  of  my  constituents.  I  do  not  charge  it  was  secret;  but  I  do  say  it  was 
not  generally  known.  It  was  not  known  to  me,  and  I  would  say  further,  if  I  may  be 
allowed  to  be  somewhat  personal,  that  my  own  products  were  sold  last  year  in  igno- 
rance of  that  change,  and  on  the  old  freight  rate  basis.  To  whatever  extent  I  shonld 
be  held  responsible  for  my  own  ignorance  on  that  point,  it  is  still  a  fact  that  I  did  sell 
in  ignorance  of  the  change.  The  new^  rate  was  put  in  force  and  in  effect  simultaneously 
almost  with  the  taking  of  the  trans-Atlantic  steamers,  by  the  large  Western  shippers. 
That  rate  was  presumably  obtained  by  the  influence  of  Western  shippers,  who  have 
many  means  of  leverage  on  railroad  companies  which  the  people  themselves,  unor- 
ganized and  disorganized,  have  not  the  advantage  of.  I  am  sure  that  the  change  of  rate 
was  made  almost  simultaneously  with  the  taking  over  of  these  trans-Atlantic  steamers. 

If  was  reduced  from  $70.70  a  car  to  $55  per  car,  or  I  should  say,  to  be  perfectly 
accurate,  27J.  cents  per  hundred  on  actual  weight,  which  would  be  $55  per  carload  of 
20,000  pounds.    That  is  the  present  rate,  as  I  have  been  informed,  since  I  made  my  state- 


245i  DEBATES  OF  THE  COXSTITUTIOIs^AL  COXVENTIOI^  OE  VIEGIXIA. 

ment  on  this  floor.  So  that  the  railroad  companies  instead  of  discriminating  against 
Southwestern  Virginia  to  the  extent  of  $15.70  per  car,  are  now  discriminating  against 
those  products  to  the  extent  of  $5  a  car,  instead  of  $15.70  per  car. 

I  have  stated  the  circumstances  as  fully  as  I  have  the  information  at  hand  to  state 
them.  I  trust  I  have  done  fairness  to  the  railroad  companies,  and  that  in  stating  all 
these  facts  that  I  have  presented  to  the  Convention,  such  a  view  of  the  question  as  will 
give  an  intelligent  understanding  of  it. 

Mr.  Thom:  Before  the  gentleman  takes  his  seat  I  would  like  to  ask  him  a  question 
Do  I  understand  that  his  remarks  apply  to  the  joint  rates  between  the  Chesapeake  and 
Ohio  and  the  Norfolk  and  Western.  Is  it  not  true  that  the  Norfolk  and  Western  Rail- 
way has  rates  to  Lambert's  Point  from  Southwestern  Virginia  of  $50  per  car,  irrespective 
of  weight,  and  that  ordinary  cars  carry  about  26,000  pounds,  and  that  that  makes  the 
rate  19  cents  and  a  fraction,  instead  of  27  cents  and  a  fraction? 

Mr.  Stuart:    I  was  under  the  impression  that  that  was  the  case  until  yesterday. 

Mr.  Thomi:    I  have  been  informed  that  was  the  rate. 

Mr.  Stuart:  1  understood  that  they  have  put  in  a  rate  of  25  cents,  which  is  the 
exact  duplicate  of  the  Chicago  rate.  I  do  not  understand  that  as  to  export  cattle  there 
is  any  such  advantage -as  you  mention.  I  understand  it  to  be  the  exact  duplicate  of  the 
Chicago  rate,  so  far  as  the  Norfolk  and  Western  and  their  terminals  are  concerned.  If 
i  am  mistaken  I  would  say  that  the  information  was  given  to  me  by  a  gentleman  very 
familiar  with  the  subject.  At  any  rate,  I  do  not  complain  of  any  discrimination  now 
being  exercised  by  the  Norfolk  and  Western  railway  toward  the  cattle  shippers  of  South- 
western Virginia.    I  think  that  is  ample  to  express  my  views. 

However,  while  I  am  on  my  feet,  and  some  what  responsible  for  this  question,  I  will 
say  that  the  Norfolk  port'  has  never  been  of  any  value  to  us  for  the  purpose  of  shipping 
cattle  abroad.  It  has  been  brought  to  my  attention  that  very  lately  two  or  three  car- 
goes of  cattle  have  been  taken  from  Norfolk,  and  that  they  intend  to  make  a  shipping 
point  there  for  export  cattle,  and  have  trans-Atlantic  steamers  call  there  and  if  that  is 
done  the  shippers  from  Southwest  Virginia  will  be  placed  on  an  equality  with  the  ship- 
pers in  the  West. 

Mr.  Braxton:  I  move  that  we  proceed  v/ith  the  report  of  the  committee,  and  that 
we  take  up  Section  4  first,  as  that  is  the  one  we  have  been  discussing  and  dispose  of 
that  by  subsections. 

The  motion  was  agreed  to. 

The  Chairman:    The  Secretary  v/ill  read  subsection  A  of  Section  4. 

Sec.  4.  A.  Subject  to  the  provisions  of  this  Constitution  and  to  such  requirements, 
rules  and  regulations  as  may  be  prescribed  by  law,  the  State  Corporation  Commission 
shall  be  the  Department  of  Government  through  which  shall  be  issued  all  charters  and 
amendments  or  extensions  thereof,  for  domestic  corporations,  and  all  licenses  to  do  busi- 
ness in  this  State,  to  foreign  corporations;  and  through  which  shall  be  carried  out  all 
the  provisions  of  this  Constitution  and  of  the  laws  made  in  pursuance  thereof,  for  the 
visitation,  Siupervision,  regulation  and  control  of  corporations  chartered  by,  or  doing 
business  in,  this  State,  The  said  commission  shall  prescribe  the  forms  of  all  reports 
which  may  be  required  of  such  corporations  by  this  Constitution  or  by  law;  it  shall  col- 
lect, receive  and  preserve  such  reports,  and  annually  tabulate  and  publish  them  in 
statistical  form;  it  shall  have  all  the  rights  and  powers  of,  and  perform  all  the  duties 
now  devolving  upon,  the  Railroad  Commissioner  and  the  Board  of  Public  Worksi,  except 
so  far  as  they  are  inconsistent  with  this  Constitution  or  may  be  hereafter  abolished  or 
changed  by  law. 

The  Chairman:  If  there  are  no  amendments  to  offer  to  subsection  A,  of  Section  4, 
the  Secretary  will  read  subsection  B. 


B.  The  said  commission  shall  have  the  power,  and  be  charged  with  the  duty,  ol! 
supervising,  regulating  and  controlling  all  transportation  and  transmission  companies 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2455 


doing  business  in  this  State,  in  all  matters  relating  to  the  performance  of  their  public 
duties  and  of  their  charges  therefor,  and  of  correcting  abuses  therein  by  such  companies; 
and  to  that  end  the  said  commission  shall,  from  time  to  time,  prescribe,  and  enforce 
against  such  companies,  in  the  manner  hereinafter  authorized,  such  rates  of  charges, 
classification  of  traffic  and  rules  and  regulations,  and  shall  require  them  to  establish 
and  maintain  ail  such  public  service,  facilities  and  con»reniences,  as  the  said  commission 
may.  vrithin  the  limitations  of  the  Constitutions  of  this  State  and  of  the  United  States, 
deem  reasonable  and  just,  which  said  rates,  classifications,  rules,  regulations  and  require- 
ments the  said  commission  may,  from  time  to  time,  alter  or  amend,  and  all  rates,  classi- 
fication, rules  and  regulations  adopted  or  acted  upon  by  any  such  company,  and  which 
are  inconsistent  with  those  prescribed  by  said  commission,  within  the  scope  of  its 
authority,  shall  be  unlawful  and  void.  The  said  commission  shall  also  have  the  right 
at  all  times  to  inspect  the  books  and  papers  of  all  transportation  and  transmission  com- 
panies doing  business  in  this  State,  and  to  require  from  such  companies,  from  time  to 
time,  special  reports  and  statements  under  oath  concerning  their  business;  it  shall  keep 
itself  fully  infoiTned  of  the  physical  condition  of  all  the  railroads  of  the  State,  as  to 
the  manner  in  which  they  are  operated,  with  reference  to  the  security  and  accomodation 
of  the  public,  and  shall,  from  time  to  time,  make  and  enforce  such  requirements,  rules 
and  regulations  as  may  be  necessary  to  prevent  unjust  or  unreasonable  discriminations 
by  any  transportation  company  against  any  person,  locality,  community,  connecting  line, 
or  kind  of  traffic  in  the  matter  of  c-ar  service,  train  or  boat  schedule,  or  efficiency  of 
transportation  or  otherwise  in  connection  with  the  public  duties  of  such  company.  The 
authority  of  the  said  commission  (subject  to  review  on  appeal  as  hereinbefore  provided) 
to  prescribe  rates  of  charges  and  classification  of  traffic  for  transportation  and  trans- 
mission companies,  shall  be  paramount;  but  its  authority  to  prescribe  any  other  rules, 
regulations  and  requirements  for  such  companies  shall  be  subject  to  the  superior 
authority  of  the  General  Assembly  to  legislate  thereon  by  general  laws;  provided  how- 
ever, that  nothing  in  this  section  shall  impair  the  right  of  any  city  or  town,  by  its 
municipal  authorities  to  prescribe  the  rates  of  charges  to  be  observed  by  any  public 
service  corporation  for  all  services  performed  by  it,  under  a  municipal  franchise  granted 
by  such  city  or  town,  and  within  the  limits  of  the  city  or  tov>-n  granting  the  franchise. 
Upon  the  request  of  the  parties  interested,  it  shall  be  the  duty  of  the  said  commission, 
as  far  as  possible  to  effect  by  mediation  the  adjustment  of  claims  and  the  settlement 
of  controversies,  between  transportation  or  transmission  companies  and  their  patrons. 

'Mr.  Thorn:  I  move  to  strike  out  the  first  41  lines  of  that  subsection,  down  to  the 
\^'ord  the,"  and  to  insert  in  lieu  thereof  the  language  I  have  prepared.  I  will  tempo- 
rarily suspend  making  this  motion  to  allow  the  Chairman  to  make  some  amendments 
which  he  desires  to  make. 

Mr.  Braxton:  By  the  kind  permission  cf  my  friend  from  Norfolk,  I  desire,  on  behalf 
of  the  Committee  on  Corporations,  to  offer  some  interlineations  here,  which  we  think 
will  make  a  little  clearer  some  of  the  provisions. 

The  first  is  in  line  34,  after  the  words  '■'United  States"  to  insert  these  words: 

And  subject  to  review  by  the  commission  itself  and  also  on  appeal,  as  hereinafter 
provided. 

And  that  a  parenthesis  be  placed,  beginning  in  line  33,  after  the  word  "may."  and 
ending  in  line  34,  just  before  the  word  "'deem,"  so  that  the  parenthetical  clause  will  then 
read  as  follows: 

(Tv'ithin  the  limitations  of  the  Constitutions  of  this  State  and  of  the  United  States, 
and  subject  to  the  review  by  the  commission  itself  and  also  an  appeal,  as  hereinafter 
provided.) 

There  the  parentnesis  will  close.  I  move  that  that  insertion  be  made  at  that  point. 
The  amendment  was  agreed  to. 

Mr.  Braxton:    Now,  in  line  35,  after  the  word  "rates"  insert  the  wor^  "charges," 
and  also  in  line  37,  after  the  word  "rates"  insert  the  word  "charges." 
I  move  those  insertions  be  made. 
The  am.endment  was  agreed  to. 

Mr.  Braxton:    Now,  Mr.  Chairman,  in  line  59,  by  misprint,  the  word  "hereinafter" 


2456 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


was  printed  "hereinbefore."    I  desire  to  have  that  correction  made.    It  should  be- 
"  hereinafter."    If  necessary,  I  move  that  that  correction  be  made. 
The  amendment  was  agreed  to. 

Mr.  Braxton:  In  line  66,  at  the  top  of  page  9,  strike  out  the  word  "of"  between  the 
word  "right"  and  the  word  "any,"  and  insert  the  word  "which."  Also  insert  the  words 
"might  otherwise  have"  after  the  word  "town"  at  the  end  of  line  66.  So  that,  as 
amended,  it  will  read:  "Provided,  however,  that  nothing  in  this  section  shall  impair  the 
right  which  any  city  or  town  might  otherwise  have  by  its  municipal  authorities,"  and 
so  on. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Then  I  will  offer  that  amendment  that  has  been  read  by  the  Secre- 
tary, to  be  placed  between  lines  57  and  58,  which  is  as  follows: 

But  before  prescribing  any  rate,  charge  or  classification  of  traffic  for,  or  making  any 
order,  rule,  regulation  or  requirement,  directed  against  any  one  or  more  companies  by 
name,  such  company  or  companies  shall  first  be  duly  summoned  by  the  commission, 
and  afforded  reasonable  opportunity  to  be  heard  thereon.  And  no  such  rate,  charge, 
classification,  rule,  regulation  or  requirement  shall  go  into  effect  against  any  company 
or  companies  to  be  effected  thereby  until  at  least  ten  days  after  due  notice  thereof  upon 
such  company  or  companies. 

I  offer  that  as  an  amendment  at  that  point. 

Mr.  Hunton:    Is  an  amendment  to  that  amendment  now  in  order? 
The  Chairman:    I  think  it  is  in  order. 

Mr.  Hunton:  Then  there  is  one  amendment  which  I  desire  to  offer  to  that  amend- 
ment. You  will  observe  that  that  takes  away  from  the  commission  the  right  to  enter 
any  order  against  any  particular  railroad  company,  without  giving  it  an  opportunity  to 
be  heard,  but  leaves  it,  at  the  same  time,  within  the  power  of  the  commission  to  enter 
any  general  regulation  as  to  rates  that  will  bind  these  companies,  if  it  does  not  apply 
to  them  by  name.  Now,  my  amendment  is  to  strike  out  the  words  "by  name."  It  is  in 
the  third  line.  Otherwise,  the  whole  effect  of  the  amendment  is  done  away  with,  and 
it  gives  the  commission  power  to  make  and  enforce  these  regulations  as  general  rules 
and  regulations  so  long  as  you  do  not  apply  them  to  any  one  company  by  name,  but  the 
instant  you  apply  them  by  name,  you  have  to  give  them  notice.  Now,  it  seems  to  me 
that  that  destroys  the  whole  effect  of  the  amendment,  and  that  it  is  nothing  but  reason- 
able and  fair  and  right,  that  when  you  undertake  to  pass  regulations  that  apply  to  these 
common  carriers,  whether  it  is  by  name  or  by  a  general  order,  that  they  ought  at  least 
to  have  the  right  and  the  privilege  to  be  heard  as  to  the  reasonableness  or  unreasonable- 
ness of  that  order  before  it  is  entered.  Therefore  I  move  to  strike  out  the  words  "by 
name." 

Mr.  Braxton:  1  regret  that  I  can  not  agree  with  my  friend  from  Fauquier  in  the 
propriety  of  this  amendment.  There  are  some  rules  and  regulations  which  It  will  be 
desirable  for  this  commission  to  make  which  are  of  a  general  character,  and  it  will  be 
utterly  impossible  to  summon  every  railroad  that  can  be  affected  by  it,  before  the  com- 
mission before  such  regulation  can  go  into  effect.  Then,  again,  suppose  you  give  notice 
to  all  the  railroads  in  existence,  how  are  you  going  to  apply  that  regulation  to  the  rail- 
roads that  may  thereafter  come  into  existence.  For  instance,  suppose  a  rule  and  regula- 
tion of  this  character  were  made:  That  it  shall  be  the  duty  of  all  railroad  companies 
to  post  up  on  a  board  notice  of  the  fact  that  any  train  was  late,  whether  that  train  Is  on 
time,  or  notice  of  the  time  of  arrival  and  leaving  of  trains,  or  that  every  railroad  com- 
pany should  keep  its  depot  office  open  twenty  minutes  before  the  train  leaves,  for  the 
selling  of  tickets,  or  any  one  of  numerous  general  regulations  of  that  sort;  how  would 
it  be  possible,  as  a  practical  thing,  to  summon  all  the  railroad  companies  now  in  exis- 
tence, or  which  may  hereafter  come  into  existence,  and  give  them  a  hearing  before  that 
could  be  enacted.    It  might  be  practicable  to  summon  aAl  of  those  now  in  existence,  but 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2457 

if  you  did  that,  then  you  could  never  enforce  it  against  any  new  railroad  without  giving  it 
notice  and  a  hearing. 

I  think  it  as  impracticable  as  I  illustrated,  awhile  ago,  it  would  be  for  the  Legisla- 
ture before  enacfmg  a  statute  of  a  general  nature  to  summon  everybody  as  they  come 
into  being,  to  show  cause  against  the  enactment  of  it. 

Before  any  general  ordinance  can  be  put  in  force  as  to  any  company,  under  the 
provisions  of  subsection  C,  they  v/ill  have  to  be  summoned  and  given  a  day  in  court  to 
show  cause  against  the  reasonableness  of  it.  That  is  all  the  protection  I  think  they 
need.  But  to  say  you  must  summon  every  company  in  the  State  before  you  can  origin- 
ally make  such  a  general  regulation  I  think  would  be  impracticable  and  would  go  far  to 
make  the  power  to  enact  such  regulation  nugatory.  Every  rule  and  regulation  v^^hich 
they  can  make  that  would  particularly  affect  any  company  or  a  limited  number  of  com- 
panies by  name,  sucn  as  rules  and  regulations  about  where  they  shall  put  in  sidings, 
where  they  shah  put  up  depots,  whether  their  supply  of  cars  is  adequate  for  general 
purposes  or  not,  w^ould  be  directed  necessarily  against  particular  companies,  and  they 
will  be  summoned  and  heard,  but  where  the  regulation  is  a  general  one  I  say  it  is  im- 
practicable to  summon  them. 

Mr.  Hunton:  Can  they  not  fix  rates  under  this  general  provision? 
Mr.  Braxton:  If  they  fix  rates,  they  must  fix  them  as  to  specific  roads  with  refer- 
ence to  special  features  and  so  on,  and  you  cannot  prescribe  any  rate  except  in  a  very 
vague,  general  way,  such  as  by  prescribing  maximum  rates.  Before  a  rate  can  be  en- 
forced against  them  they  must  be  summoned  and  given  a  hearing.  It  seems  to  me  that 
these  provisions  ought  not  to  be  so  limited  that  as  to  general  provisions  such  as  I  have 
indicated,  such  as  opening  the  ticket  ofiice  before  trains  leave,  for  instance,  that  they 
must  summon  all  railroads,  and  that  then  when  a  new  corporation  is  organized  they  must 
summon  that  one,  hold  a  hearing  and  re-enact  the  old  regulation.  I  hope  therefore  that 
the  amendment  offered  by  the  gentleman  from  Fauquier  will  not  be  adopted. 

Mr.  Hunton:  Mr.  Chairman,  I  think  the  proposition  of  the  gentleman  from  Augusta 
(Mr.  Braxton)  is  not  tenable.  I  think  his  suggestion,  that  if  you  strike  out  the  words 
"  by  name  "  you  would  have  to  give  nam^es  before  passing  and  making  these  rules  and 
regulations  as  to  railroads  that  were  not  then  in  existence  cannot  be  maintained.  It 
seems  to  me  there  is  nothing  clearer  than  that  by  striking  out  the  v/ords.  "by  name"  you 
would  be  compelled  to  give  notice  to  the  railroads  then  in  existence,  and  to  no  others, 
and  that  when  others  came  into  being,  they  would  come  into  being  subject  to  the  rules 
and  regulations  that  had  then  been  adopted. 

My  objection  to  the  words  "by  name"  are  that  you  will  give  to  the  commission 
the  absolute  power  to  fix  the  rates,  as  well  as  all  other  rules  and  regulations  govern- 
ing and  controlling  these  transportation  companies,  without  giving  the  companies  an 
opportunity  of  knowing  that  this  is  being  done,  and  without  giving  them  the  oppor- 
tunity to  be  heard.  It  is  true  that  you  subsequently  give  them  the  right  to  complain  of 
the  rule  or  regulation,  but  it  seems  to  me  that  v/hen  you  are  going  into  these  regula- 
tions to  determine  whether  they  are  just  or  not,  the  companiesi  should  be  summoned 
prior  to  the  commission  having  fixed  its  mind  and  having  adopted  a  rule  or  regulation. 
It  is  a  very  diflicult  matter  to  get  a  court  to  change  its  opinion  when  it  has  once  decided 
a  question,  and  I  say  it  is  unjust  and  unfair. 

The  gentleman  says  it  would  be  impracticable  to  fix  the  rates.  Why,  suppose  this 
commission  in  its  wisdom  or  unwisdom  should  determine  that  all  the  rates  of  all  the 
railroads  should  be  10  per  cent,  lower  than  their  schedule  rates  and  their  published 
rates,  at  that  date;  would  there  be  any  practical  difficulty  in  summoning  the  roads  of 
the  State  of  Virginia,  either  by  actual  service  of  process  or  by  publication,  so  that  they 
may  come  here  and  have  a  fair  hearing  before  these  general  rules,  and  regulations  are 
adopted;  and  whenever  there  is  to  be  a  change  that  is  to  apply  to  all  the  roads  in  the 
State,  they  should  be  given  the  same  right  to  a  hearing  as  to  the  reasonableness  or 

155 — Const.  Deb. 


2458  DEBATES  OF  THE  CONSTITUTIONAL  CONYEXTIOX  OF  VIRGINIA. 

unreasonableness  of  these  rules  and  regulations.  I  say  it  seems  to  me  pre-eminently 
unjust  and  unfair  to  permit  this  commission  to  fix  the  rates,  and  all  the  rules  and  regu- 
lations governing  these  corporations,  without  at  least  giving  them  the  right  and  the 
privilege  to  be  heard  prior  to  any  act  by  this  commission  fixing  these  general  rules  and 
regulations. 

Mr.  Thorn:  Mr.  Chairman,  while  my  attitude  towards  this  general  article  is  of 
course,  fully  understood,  I  feel  it  to  be  my  duty  to  make  the  suggestion  which  I  am 
about  now  to  make.  I  think  that  with  the  amendment  in  its  present  form  there  is  great 
doubt  about  the  constitutionality  of  that  whole  subsection.  There  is  no  requirement 
under  the  terms  of  this  law  or  notice.  It  is  not  sufiicient  that  notice  may  be  given,  but 
to  make  a  provision  of  law  constitutional  which  affects  the  private  right  of  others,  the 
law  must  absolutely  provide  notice.  Now  no  notice  is  provided,  when  the  commission 
may  evade  it  by  simply  omitting  the  name  of  the  company  to  be  affected;  and  I  throw 
that  matter  out  for  the  consideration  of  the  committee. 

Mr.  Braxton:  Mr.  Chairman,  I  should  be  very  glad  to  meet  the  views  of  my  friends 
from  Fauquier  and  Norfolk  if  I  could  possibly  see  my  way  clear  to  do  it,  but  it  seems  to 
me,  Mr.  Chairman,  if  we  strike  out  those  words  "by  name,"  we  make  it  practically  im- 
possible for  this  commission  to  adopt  any  general  regulation  or  make  any  general  re- 
quirement of  corporations  whatsoever. 

I  will  try  to  explain.  If  the  rule  or  regulation  is  limited  to  transportation  com- 
panies, then  before  any  general  regulation,  it  matters  not  how  simple  it  may  be,  can  be 
carried  into  effect,  you  will  havd  to  serve  notice  on  every  "company,  trustee  or  other 
person  owning,  leasing  or  operating  for  hire  a  railroad,  street  railway,  canal,  steamboat 
or  steamship  line,  and  also  any  sleeping  or  parlor  car  company,  freight  car  company, 
car  association  or  car  trust,  express  company,  or  company  trustee  or  person  in  any  way 
engaged  in  business  as  a  comm.on  carrier." 

Every  one  in  the  State  would  have  to  be  notified,  and  if  you  did  not  notify  them,  the 
entire  regulation  might  be  illegal  and  void,  if  there  was  a  single  one  you  had  overlooked. 
If  it  was  a  simple  requirement — because  this  applies  to  requirements  of  all  sorts — pre- 
scribing the  form  of  the  report,  you  would  have  to  summon  every  corporation  in  the 
State  of  Virginia  that  could  possibly  be  affected  by  it,  of  all  sorts,  kinds  and  descriptions 
and  serve  process  on  them  before  the  simplest  requirement  could  be  made  by  this  commis- 
sion in  the  simplest  matter,  otherwise  the  entire  requirement  might  be  illegal. 

It  seems  to  me  if  the  requirement  is  of  a  general  nature,  it  is  also  impossible  to 
serve  a  notice  on  people  to  be  affected  by  any  requirement  of  a  general  nature,  because 
it  is  beyond  the  possibility  of  man  to  ascertain  every  human  being  and  every  company  in 
the  State  of  Virginia,  who  can  possibly  be  affected  by  it.  I  feel  that  none  of  those  require- 
ments will  be  such  as  to  injure  the  companies.  It  is  only  those  which  are  directed  to 
the  companies  specifically  that  they  can  be  specifically  summoned  to  answer.  Where 
the  requirement  is  general,  in  view  of  the  fact  that  it  is  impossible  to  serve  a  general 
notice  on  everybody,  before  that  requirement  can  be  enforced  against  them,  they  have 
their  day  in  court,  as  it  were,  to  object  to  it;  but  if  you  say  that  in  all  those  general 
cases  you  cannot  make  any  requirem.ent  until  you  have  served  it  upon  everybody,  you 
practically  cut  off  from  the  commission  the  power  of  making  the  simplest  general  re- 
quirement as  to  these  corporations,  even  as  to  the  making  of  the  annual  report  or  any- 
thing else ;  and  I  cannot  help  but  think  that  the  difficulties  which  my  worthy  -friends 
seem  to  think  exist,  do  not  in  fact  exist. 

Mr.  Thornton:  Would  the  committee  be  willing  to  let  the  words  suggested  by  the 
gentleman  from  Fauquier  be  stricken  out  in  so  far  as  they  refer  to  the  first  line?  That 
is  to  say,  let  it  read.  "But  before  prescribing  any  rate,  charge  or  classification,  &c., 
and  then  come  back  and  have  it  read,  "and  make  order,  rule  or  requirement  against  any 
one  or  more  companies  by  name,"  so  as  to  let  the  rates,  classifications  and  charges  be 
made  in  a  general  way,  while  permitting  it  to  make  all  rules,  orders  or  requirements, 
without  requiring  the  notice,  unless  they  shall  be  applied  by  name.    It  seems  to  me  that 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2459 


would  cover  the  suggestion  made  by  the  gentleman  from  Norfolk. 

Mr.  Braxton:  There  would  be  no  objection  to  that,  and  I  suggest  that  the  object 
would  be  accomplished  by  inserting  the  words  "for  any  company,"  after  the  word 
"traffic"  in  the  second  line,  so  it  will  read  this  way:  "But  before  prescribing  any  rate, 
change  or  classification  of  traffic,  for  any  company  or  before  making  any  order,  rule  or 
requirement,  directed  against  any  one  or  m.ore  companies  by  name,"  &c. 

Mr.  Chairman,  I  offer  that  in  the  form  in  which  it  now  appears. 

The  Secretary:  The  member  from  Augusta  (Mr.  Braxton)  proposes  to  add  after 
the  word  "company,"  in  line  57,  the  following: 

But  before  prescribing  any  rate,  change  or  classification  of  traffic  for  any  company, 
or  before  making  any  order,  rule  or  requirement,  directed  against  any  one  or  more  com- 
panies by  name,  such  company  or  companies  shall  be  first  duly  summoned  by  the  com- 
mission and  shall  be  afforded  reasonable  opportunity  to  be  heard  thereon,  and  no  such 
rate,  classification,  rule  or  requirement  shall  go  into  effect  against  any  company  or 
companies  to  be  affected  thereby  until  at  least  ten  days  after  due  notice  thereof  upon 
such  company  or  companies. 

The  member  from  Fauquier  (Mr.  Hunton)  proposes  to  strike  out  of  the  third  line 
of  the  amendment  the  words  "by  name." 

The  Chairman:  The  question  is  upon  the  amendment  to  the  amendment  offered  by 
the  gentleman  from  Augusta. 

The  amendment  was  agreed  to. 

The  question  now  occurs  upon  the  amendment  of  the  gentleman  from  Augusta  as 
modified. 

Mr.  Thom:  I  now  offer  the  amendment  suggested  a  moment  ago,  to  strike  out  from 
sub-section  B  of  section  4,  from  the  beginning  of  it,  commencing  at  line  21  and  end- 
ing in  the  middle  of  line  41,  and  to  insert  in  lieu  thereof  the  follov\^ing'. 

The  said  commission  shall,  in  addition  to  such  powers  and  dutes  as  may  be  con- 
ferred by  law,  have  the  power  and  be  charged  with  the  duty  of  prescribing,  supervising, 
regulating  and  enforcing,  in  the  manner  hereinafter  authorized,  reasonable  rates  of 
charges  and  classification  of  traffic  of  all  transportation  and  transmission  companies 
doing  business  in  this  State,  which  said  rates  and  classifications  the  said  commission 
may,  from  time  to  time  alter  or  amend,  and  all  rates  and  classifications  adopted  or 
acted  upon  by  any  such  company  which  are  inconsistent  with  those  prescribed  by  said 
commission,  within  the  scope  of  its  authority,  shall  be  unlawful  and  void:  Provided, 
however,  that  any  such  company,  in  the  absence  of  any  rate  or  classification  prescribed 
by  the  commission,  in  respect  to  any  matter,  may  itself  fix  a  reasonable  rate  or  classifi- 
cation a^ipiicable  thereto,  subject  to  the  future  action  of  the  commission  thereon:  And 
provided  further,  that  the  said  commission,  before  prescribing,  fixing,  altering  or  amend- 
ing any  rate,  charge  or  classification  for,  or  making  any  order  affecting,  any  such  com- 
pany, shall  first  duly  summon  such  company,  and  afford  it  a  reasonable  opportunity 
of  being  heard  thereon;  and  no  such  rate,  charge,  classiffication  or  order  shall  go  into 
effect  against  any  company  to  be  effected  thereby,  until  a  reasonable  time  after  due  ser- 
vice of  notice  thereof  on  such  company. 

The  object  of  that  amendment  is  to  confine  the  constitutional  duties  of  this  com- 
mission to  the  matter  of  fixing  rates,  charges  and  classification  of  traffic,  and  to  the 
following. 

The  said  commission  shall  also  have  the  right  at  all  times  to  inspect  the  books 
and  papers  of  all  transportation  and  transmission  companies  doing  business  in  this 
State,  and  to  require  from  such  companies,  from  time  to  time,  special  reports  and  state- 
ments under  oath,  concerning  their  business;  it  shall  keep  itself  fully  informed  of  the 
physical  condition  of  all  the  railroads  of  the  State,  as  to  the  manner  in  which  they  are 
operated,  with  reference  to  the  security  and  accommodation  of  the  public,  and  shall, 
from  time  to  time,  make  and  enforce  such  requirements,  rules  and  regulations  as  may  be 
necessary  to  prevent  unjust  and  unreasonable  discriminations  by  any  transportation 
company  against  any  person,  locality,  community,  connecting  line,  or  kind  of  traffic  in 
the  matter  of  car  service,  train  or  boat  schedule,  or  efficiency  of  transportation  or  other- 
wise in  connection  with  the  public  duties  of  such  company. 


2460 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTION  OF  VIEGINIA. 


Cutting  out  the  power  conferred  by  the  article  as  it  stands  upon  the  commission 
to  require  transportation  companies  to  establish  and  maintain  all  such  public  service 
facilities  and  conveniences  as  the  said  commission  may  within  constitutional  limits  deem 
reasonable  and  just. 

The  power  which  it  is  the  purpose  of  this  amendment  to  exclude  from  this  commis- 
sion is  one  that  has  been  conferred  upon  no  commission  anywhere,  so  far  as  I  am 
advised.  I  have  before  me  the  Constitutions  of  several  States.  The  Constitution  of 
California  in  that  regard  gives  the  following  powers  to  its  commission: 

Said  commissioners  shall  have  the  power,  and  it  shall  be  their  duly,  to  establish 
rates  of  charges  for  the  transportation  of  passengers  and  freight  by  railroad  or  other 
transportation  companies  and  publish  the  same,  from  time  to  time,  with  such  charges 
as  they  make;  to  examine  the  books,  records  and  papers  of  all  railroad  and  other  trans- 
portation companies;  and  for  this  purpose  they  have  pov/er  to  issue  subpoenas  and  all 
other  necessary  processes  to  hear  and  determine  complaints  against  railroad  and  other 
transportation  companies;  to  send  for  persons  and  papers;  to  administer  oaths,  take  testi- 
mony, and  punish  for  contempt  of  their  orders  and  processes,  in  the  same  manner  and 
to  the  same  extent  as  courts  of  record,  and  enforce  their  decisions  and  correct  abuses 
through  the  medium  of  the  courts. 

In  other  words,  there  is  a  constitutional  power  in  the  commission  appointed  by  the 
State  of  California  to  deal  with  the  question  of  rates,  but  not  to  deal  with  the  question 
of  the  number  of  trains,  the  number  of  cars  in  the  train,  the  schedules  thereon,  the 
physical  facilities  to  be  provided,  including  side  tracks,  spurs,  and  any  other  matter  that 
comes  within  the  general  definition  of  "public  facility."  So  that  the  State  of  California, 
by  its  Constitution,  confers  no  such  power. 

The  State  o'f  Georgia  has  this  provision  in  its  Constitution: 

The  power  and  authority  of  regulating  railroad  freight  and  passenger  tariffs,  pre- 
venting unjust  discriminations,  and  requiring  reasonable  and  just  rates  of  freight  and 
passenger  tariffs  are  hereby  conferred  upon  the  General  Assembly,  whose  duty  it  shall 
be  to  pass  laws,  from  time  to  time,  to  regulate  freight  and  passenger  tariffs,  to  prohibit 
unjust  discriminations  on  the  various  railroads  of  this  State,  and  prohibit  said  roads 
from  charging  other  than  just  and  reasonable  rates,  and  enforce  the  same  by  adequate 
penalties. 

The  State  of  Georgia  has  no  such  power  as  is  hereby  proposed  to  be  stricken  out. 
The  constitutional  provision  of  the  State  of  Kentucky  is  as  follows: 

The  powers  and  duties  of  the  railroad  commissioners  shall  be  regulated  by  law, 
and  until  otherwise  provided  by  law  the  commission  so  created  shall  have  the  same 
powers  and  jurisdiction,  perform  the  same  duties,  be  subject  to  the  same  regulations, 
and  receive  the  same  compensation  as  now  conferred,  prescribed  and  allowed  by  law 
to  the  existing  railroad  commissioners. 

So  that  the  State  of  Kentucky  has  no  such  provision. 

In  the  State  of  Virginia  the  Legislature  can  make  changes  upon  the  recommendation 
of  the  board. 

The  State  of  Louisiana  has  in  its  Constitution  the  most  drastic  provision  which  has 
come  under  my  notice.    It  is  as  follows: 

The  power  and  authority  is  hereby  vested  in  the  commission,  and  it  is  hereby  made 
its  duty,  to  adopt,  change  or  make  reasonable  and  just  rates,  charges  and  regulations  to 
govern  and  regulate  railroad,  steamboat  and  other  water  craft,  and  sleeping  car,  freight 
and  passenger  tariffs  and  service,  express  rates,  and  telephone  and  telegraph  charges, 
to  correct  abuses  ***** 

And  then,  after  some  immaterial  m. after — I  mean  immaterial  for  the  purposes  of  my 
point — it  continues — 

To  require  all  railroads  to  build  and  maintain  suitable  depots,  switches  and  appur- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIEGIMA. 


2161 


tenances  v.-herever  the  same  are  reasonatily  necessary  at  stations,  and  to  inspect  rail- 
roads and  to  require  them  to  keep  their  tracks  and  bridges  in  a  safe  condition,  and  to 
fix  and  adjust  rates  befv;-een  branch  or  short  lines  and  the  great  trunk  lines  v;-ith  which 
they  connect,  and  to  enforce  the   same  by  having  the  penalties  hereby  prescribed 

inflicted  through  the  proper  courts  having  jurisdiction. 

So  that  in  the  State  of  Louisiana  there  is  no  such  provision  as  giving  unlimited 
power  over  all  the  facilities  of  every  sort  that  a  transportation  company  shall  furnish  in 
the  interests  of  the  public. 

In  the  State  of  Mississippi  the  provision  is  as  follows: 

The  Legislature  shall  pass  laws  to  prevent  abuses,  unjust  discrimination  and  extor- 
tion in  all  charges  of  express,  telephone,  sleeping  car,  telegraph  and  railroad  companies, 
and  other  common  carriers  in  this  State,  by  commission  or  otherwise  and  shall  provide 
adequate  penalties,  to  the  extent,  if  necessary  for  that  purpose,  of  forfeiture  of  their 
franchises. 

That  is  the  provision  of  the  State  of  Mississippi,  and  it  contains  no  such  power.  I 
will  next  call  attention  to  the  provision  in  the  Constitution  of  South  Carolina: 

A  commission  is  hereby  established,  to  be  known  as  "  The  Railroad  Commission," 
which  shall  be  composed  of  not  less  than  three  members,  whose  powers  over  all  trans- 
porting and  transmitting  corporations,  and  duties,  manner  of  election  and  term  of  office 
shall  be  regulated  by  law. 

So  that  in  the  State  of  South  Carolina  there  is  no  such  power. 

I  next  call  attention  to  the  provision  in  the  Constitution  of  the  State  of  Texas: 

Railroads  heretofore  constructed,  or  which  may  be  hereafter  constructed  in  this 
State,  are  htreby  declared  public  highways  and  railroad  companies  common  carriers. 
The  Legislature  shall  pass  laws  to  regulate  railroad  freight  and  passenger  tariffs,  to 
correct  abuses,  and  prevent  unjust  discrimination  and  extortion  in  the  rates  of  freight 
and  passenger  tariffs  on  the  different  railroads  in  this  State,  and  enforce  the  same  by 
adequate  penalties,  and  to  the  further  accomplishment  of  these  objects  and  purposes 
may  provide  and  establish  all  requisite  means  and  agencies  invested  with  such  powers  as 
may  be  deemed  adequate  and  advisable. 

So  that  ia  the  Constitution  of  nearly  every  one  of  the  States  which  we  have  been 
considering  here,  the  limit  of  what  the  Constitution  has  done  is  to  confer  the  power  and 
to  impose  the  mandate  upon  the  Legislature  to  deal  with  these  subjects  of  freight 
charges.  In  the  Constitutions  of  none  of  the  other  States  is  there  a  provision  as  broad 
as  that  which  is  contained  here. 

Mr.  Chairman  I  shall  be  brief  but  I  am  trying  to  give  to  this  committee  such  inform- 
ation on  this  subject  as  I  have  been  able  to  gather.  I  next  desire  to  call  the  attention 
of  the  committee  to  the  powers  conferred  on  the  railroad  or  corporation  commission  by 
the  State  of  Xorth  Carolina  in  its  statute: 

That  said  commission  is  hereby  empowered  and  directed: 

(1.)  To  make  reasonable  and  just  rates  of  freight,  passenger  and  express  tariffs 
for  railroads,  steamboats,  canal  and  express  companies  or  corporations,  and  all  other 
transportation  companies  or  corporations  engaged  in  the  carriage  of  freight,  express  or 

passengers. 

I  now  pass  over  the  various  powers  which  are  not  pertinent  to  the  inquiry  I  am  now 
making,  and  come  to  the  point  where  it  requires  physical  facilities  of  these  railroads. 

(12)  To  require,  where  the  public  necessities  demand  and  it  is  demonstrated  that 
the  revenue  received  will  be  sufficient  to  justify  it,  the  establishment  of  stations  by  any 
company  or  corporation  engaged  in  the  transportation  of  freight  or  passengers  in  this 
State,  and  to  require  the  erection  of  depot  accommodations  commensurate  with  such 
business  and  revenue.    Provided,  the  commissioner  shall  not  require  any  company  or 


2462 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTIOO^^  OF  VIRGINIA. 


corporation  to  establish  any  station  nearer  to  another  station  than  five  miles. 

(13)  To  require  a  change  of  any  station  or  the  repairs,  addition  to  or  change  of  any 
station  house  by  any  railroad,  or  other  transportation  company  in  order  to  promote  the 
security,  convenience  and  accommodation  of  the  public  and  to  require  the  raising  or 
lowering  of  the  track  at  any  crossing  when  deemed  necessary. 

(14)  To  require  the  establishment  of  separate  waiting  room.s  at  all  stations  for  the 
white  and  colored  races. 

(15)  To  require  the  construction  of  side  tracks  by  any  railroad  company  to  indus- 
tries already  established  or  to  be  established.  Provided,  it  is  shown  that  the  proportion 
of  such  revenue  accuring  to  such  side  track  is  sufficient  within  five  years  to  pay  the  ex- 
penses of  its  construction.  This  shall  not  be  construed  to  give  the  commissions 
authority  to  require  railroad  companies  to  construct  side  tracks  more  than  five  hundred 
feet. 

I  have  read  these  provisions  to  the  committee  for  the  purpose  of  showing  that  wher- 
ever this  matter  of  the  physical  facilities  has  been  gone  into  in  Constitutions,  and  so  far 
a?  I  know,  in  statutes,  it  is  so  guarded  as  not  to  give  an  unlimited  power,  but  on  the  con- 
trary, a  most  limited  power  to  this  commission. 

Now,  in  the  provision  which  I  offer,  I  propose  to  give  the  Legislature  of  the  State 
the  power  to  confer  all  such  jurisdiction  upon  the  board  as  they  may  see  fit  in  the  future, 
ill  addition  to  such  as  the  Constitution  itself  confers,  and  the  Constitution  itself,  if  this 
amendment  I  propose  is  adopted,  confers  complete  power  of  the  regulation  of  the  freight 
and  passenger  tariffs  of  these  companies. 

I  shall  not  go  further  into  discussion  of  it,  but  I  ask  at  the  hands  of  the  committee 
a  calm  and  deliberate  consideration  of  the  merits  of  the  proposition  I  have  presented. 

Mr.  Kendall:  Mr.  Chairman,  the  clause  to  which  my  friend  objects  is  "and  shall 
require  them  to  establish  and  maintain  all  such  public  service  facilities  and  conven- 
iences as  the  said  commission  may,  within  the  limitations  of  the  Constitutions  of  this 
State  and  of  the  United  States,  deem  reasonable  and  just;  "  and  if  I  understand  him, 
his  desire  is  to  leave  it  to  the  Legislature  to  say  what  specific  powers  the  commission 
shall  have  in  the  execution  of  this  general  language  as  here  embodied  in  this  article. 
So  that  the  chief  difference  between  him  and  myself  and  the  language  of  this  report  is 
that  he  would  have  the  Legislature  go  on  and  undertake  to  enumerate  the  different 
powers  which  this  commission  should  have  in  reference  to  these  public  service  matters 
of  convenience,  whereas  we,  in  a  general  way,  give  them  those  powers  within  the  limi- 
tations of  the  Constitutions  of  the  State  and  of  the  United  States,  in  advance,  leaving, 
however,  to  the  Legislature  the  express  authority  to  limit  the  powers  of  the  commis- 
sion in  that  regard. 

Now,  gentlemen,  we  know  there  are  an  infinite  number  of  petty  annoyances  to 
which  the  railroads  can  subject  the  public,  that  need  and  should  have  supervision  and 
even  control  of  this  commission.  AVe  are  but  carried  back  to  the  old  argument,  the 
old  idea  that  it  is  the  purpose  of  this  commission  to  oppress  and  outrage  the  railroads 
in  these  matters.  We  are  asked  to  believe  that  the  commission  is  to  take  this  tyranni- 
cal course  towards  these  roads,  as  if  it  were  their  desire  to  annoy  and  pursue  them 
in  every  possible  way.  It  is  difiicult  for  us  here  to  undertake  to  enumerate  by  legisla- 
tive enactment  these  various  provisions  which  are  spread  out  in  various  enactments  of 
these  States  of  which  the  gentleman  has  read  the  Constitutional  provisions.  We  have 
here  but  given  them  that  general  power  of  supervision,  leaving  it  to  the  Legislature, 
if  it  finds  any  reason  to  do  so,  to  step  in  and  limit  the  action  of  the  commission. 

I  think  the  general  supervision  provided  for  in  this  general  language  is  especially 
needed  with  this  commission,  and  that  no  harm  or  injury  can  come  from  it.  I  hope 
the  committee  will  adopt  the  provision  as  it  is  now  embodied. 

("  Question.  Question.") 

The  Chairman:  The  question  is  upon  the  amendment  offered  by  the  gentleman  from 
Norfolk  (Mr.  Thdin). 

The  amendment  was  rejected;  there  being  on  a  division,  ayes,  15;  noes,  47. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIEGIXIA. 


2163 


Mr.  R.  Walton  Moore:  Mr.  Chairman,  I  offer  the  follo^'ing  substitute  for  the  lan- 
guage in  lines  5S  to  Go  of  section  4: 

The  authority  of  the  said  commission  shall  be  subject  to  the  superior  authority_of 
the  General  Assembly,  which  shall  have  the  right  to  alter  or  amend  any  provision 
hereof. 

Mr.  Chairman,  I  need  not  promise  that  I  will  be  very  brief  since  we  are  working 
under  the  rule  that  limits  remarks  to  ten  minutes.  Frankly,  I  wish  to  say  that  if  there 
were  any  hope  whatever  of  such  a  proposition  being  accepted,  I  should  propose  that 
the  Constitution  create  and  provide  for  the  organization  of  this  commission,  but  that 
the  authority  be  vested  in  the  General  Assembly  to  confer  upon  it  such  powers  as  it 
should  possess;  in  other  words,  that  its  powers  shall  be  built  up  by  statute  rather 
than  by  detailed  constitutional  provisions. 

Mr.  Chairman,  that  has  been  practically  determined  not  to  be  the  proper  course; 
and,  wherefore,  I  speak  not  as  a  pro-railroad  man,  or  an  anti-railroad  man,  but  as  one 
who  believes  himself  capable  of  fair  and  considerate  action  so  far  as  concerns  all  the 
interests  that  are  involved,  and  I  speak  as  one  v>-ho,  as  a  member  of  the  Legislature, 
has  given  some  attention  to-  this  subject  in  times  past. 

The  gentleman  from  Pulaski  (Mr.  Wysor)  said  that  we  define  the  powers  of  the 
executive  in  the  Constitution.  He  is  mistaken.  We  do  not  go  far  beyond  declaring 
that  the  executive  shall  faithfully  enforce  the  laws.  It  is  charged  that  the  General 
Assembly  cannot  be  trusted;  and  yet  we  are  told,  upon  the  other  hand,  that  there  are 
nineteen  commissions  of  this  character  in  the  countiw  and  sixteen  of  them  get  their 
powers  by  legislative  action  against  three  of  them  that  derive  their  powers  consti- 
tutionally. 

Have  vv'e  reached  the  point  that  we  are  ready  to  declare  that  there  inheres  in  the 
people  of,  for  instance.  North  Carolina,  or  the  people  of  Georgia  a  virtue  and  an  integrity 
which  the  people  of  Virginia  do  not  possess  and  which  they  cannot  express  through  their 
General  A.ssembly? 

Mr.  Braxton:  May  I  call  the  gentleman's  attention  to  the  fact  that  none  of  those 
States  have  had  a  Constitutional  Convention  to  put  this  provision  in  the  Constitution 
smce  it  was  enacted. 

Mr.  R.  Walton  Moore:  Yes,  sir,  but  you  point  me  to  the  fact  as  a  beacon  light,  that 
in  Georgia  they  have  a  satisfactory  commission  established  by  the  General  Assembly 
of  that  State,  and  yet  you  assert,  and  in  doing  so  you  present  an  Indictment  against 
the  General  Assembly  of  Virginia  that  such  a  result  is  not  possible  here. 

Mr.  Barbour:  Have  we  a  satisfactory  commission  in  Virginia  under  the  laws  of 
the  General  Assembly? 

Mr.  R.  Walton  Moore:  Xo,  sir:  and  there  are  other  evils  in  Virginia  besides  those 
of  discriminations  and  excessive  charges  that  we  should  correct  if  we  are  to  engage 
in  the  business  of  making  the  Constitution  cover  the  whole  field  of  legislative  action. 
How  about  the  inequality  of  assessments  in  the  State?  How  about  the  remarkably 
unequal  distribution  of  pension  funds?  We  do  not  design  to  deal  with  those  matters. 
How  about  the  trusts?  It  is  a  prevalent  sentiment  that  trusts  present  a  grave  problem, 
and  here  in  this  report  the  committee  is  content  to  stop  with  this  provision:  "The 
General  Assembly  shall  enact  laws  preventing  all  trusts,  combination  and  monopolies 
inimical  to  the  public  welfare. 

Mr.  Meredith:  What  was  your  object  in  asking  this  body  to  abolish  the  old  sys- 
tem of  having  the  Senate  divided  into  two  bodies? 

Mr.  R.  Walton  Moore:  I  will  answer  the  gentleman.  I  have  stated  here,  and  I 
will  reiterate,  that  popular  measures  have  often  failed  in  the  Senate;  and  I  have  ad- 
vocated from  the  beginning  a  change  which  will  enable  the  people  to  elect  their  Senate 
and  their  House  of  Delegates  at  the  same  time.  My  desire  is  to  make  the  General  As- 
sembly more  responsive  to  the  will  of  the  people. 


2464: 


DEBATES  OF  THE  CONSTITUTIOJsTAL  COJs^VENTIOX  OE  VIRGIIilA. 


Mr.  Meredith:  Let  us  get  down  a  little  more  to  specific  facts.  Was  it  not  upon 
the  ground  of  the  influence  of  the  railroads  in  the  Senate?  Was  not  that  what  moved 
you? 

Mr.  R.  Walton  Moore:  I  do  not  hesitate  to  admit  that  that  influence  has  operated. 
But  have  we  no  hope  for  the  future?  Are  we  to  accomplish  nothing  by  improving 
the  suffrage,  insuring  fair  elections  and  choosing  the  entire  membership  of  the  General 
Assembly  at  the  same  time? 

Mr.  Claggett  B.  Jones:  I  should  like  to  ask  the  gentleman  why  he  advocated  quad- 
rennial sessions  of  the  Legislature  if  he  thought  they  were  such  good  things;  and  further- 
more, if  he  wanted  quadrennial  sessions  and  wanted  this  matter  relegated  to  the  Legis- 
lature, if  he  would  postpone  it  for  four  years? 

Mr.  R.  Walton  Moore:  The  question  presents  no  difflculty.  I  stated  in  answer 
to  an  interrogation  of  the  gentleman  from  Portsmouth  (Mr.  Hafton)  when  the  matter 
of  quadrennial  sessions  was  under  discussion  here,  that  the  very  heart  of  the  whole 
controversy  with  me  was  to  abolish  the  hold-over  feature  of  the  Senate.  But  even  under 
the  present  system  it  has  always  been  possible  for  an  energetic  and  ardent  popular 
demand  to  obtain  the  desired  legislation.  Take  the  employers'  liability  measure  as  an 
illustration.  It  has  become  a  certainty  because  the  people  who  were  interested  in  it 
agitated  for  it,  and  the  Norfolk  Convention  of  the  Democratic  party  wrote  it  in  its  plat- 
form. One  reason,  along  with  others,  why  a  railroad  commission  bill  has  not  been 
passed  heretofore  by  the  General  Assembly  of  Virginia  is  that  the  people  have  not  shown 
a  sufficient  interest  in  its  passage.  That  in  addition  to  adverse  viev/s  in  the  General 
Assembly. 

Mr.  Wescott:  Do  you  not  think  if  that  infant  had  been  born  in  the  General  As- 
sembly under  that  pressure  it  would  have  been  a  cripple? 

Mr.  R.  Walton  Moore:  I  cannot  say  so.  I  want  to  say,  my  friend,  that  it  seems 
to  me  the  logic  of  his  question  and  his  position  drives  him  to  government  by  commis- 
sion, instead  of  government  by  a  General  Assembly. 

Mr.  Wescott:    That  is  the  way  we  propose  to  govern  railroads. 

Mr.  R.  Walton  Moore:  Why  do  you  not,  then,  take  other  matters  out  of  the  hands 
of  the  General  Assembly  and  turn  them  over  to  absolute  and  uncontrolled  commissions? 

Now,  Mr.  Chairman,  I  was  diverted  from  the  very  simple  statement  I  proposed  to 
make.  I  was  not  proposing  to  discuss  the  question  as  to  whether  the  General  Assembly 
should  be  left  to  build  up  the  powers  of  this  commission,  because  I  think  that  question 
is  settled.  I  desired  to  say  a  word  or  two  in  favor  of  reserving  to  that  body  the  right 
to  amend. 

Mr.  Braxton:  Mr.  Chairman,  I  will  not  detain  the  committee  longer  than  to  say 
simply  that,  with  all  due  respect  to  my  friend,  I  trust  the  committee  will  not  adopt  the 
amendment  he  proposes. 

Mr.  R.  Walton  Moore:  I  wish  to  say  one  word  further,  with  the  permission  of  the 
gentleman  from  Augusta.  The  amendment  I  have  offered  simply  suggests  that  the 
General  Assembly  be  given  the  right  of  control,  to  the  extent  of  altering  or  amending 
any  provision  of  this  section  in  the  future  if  it  is  thought  desirable  to  do  so. 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Fairfax  (Mr.  Moore). 

The  amendment  was  rejected,  there  being  on  a  division,  ayes  19,  noes  43. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  until  to-morrow, 
February  15,  1902,  at  10  o'clock  A.  M. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2±Qd 


SATURDAY,  February  15,  1902. 

The  Convenfion  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  C.  S.  Gardner,  D.  D. 

RECESS  OF  CONVENTION. 

2Jr.  Blair:    ^Ir.  President,  I  desire  to  offer  the  follov,-ing  resolution; 

Resolved.  That  v.-hen  the  Convention  adjourns  on  Tuesday  next  it  be  to  meet  again 
on  Monday,  IMarch  10,  1902. 

Mr.  Tiirnbull:  Mr.  President,  I  move  the  following  as  a  substitute  for  the  reso 
lution  offered  by  the  gentleman  from  Wythe: 

Resolved.  That  v>-hen  the  Convention  adjourns  on  Tuesday,  the  ISth  instant,  it  be 
to  meet  on  Tuesday,  the  18th  of  March,  1902,  at  10,  o'clock  A.  ;M.;  the  members  and 
employes  of  the  Convention  to  receive  no  pay  during  the  recess,  but  that  mileage  be 
allowed  the  members. 

The  President:    The  ciuestion  is  on  agreeing  to  the  amendment. 

The  question  having  been  taken  by  the  yeas  and  nays,  the  result  vras  announced — 
yeas,  21;  nays,  42. 

The  amendment  in  the  nature  of  a  substitute  Vv'as  rejected. 

Mr.  Thom:  Mr.  President,  I  move  the  following  as  a  stibstitute  for  the  resolution 
offered  by  the  gentleman  from  Wythe  (Mr.  Blair). 

Resolved.  That  the  committee  heretofore  appointed  to  consider  the  matter  of  obtain- 
ing a  hall  for  the  use  of  the  Convention  be  authorized  to  secure  a  hall  for  the  purpose 
of  continuing  the  sessions  of  this  Convention  without  any  intermission  on  account  of 
the  session  of  the  General  Assembly,  such  action  on  the  part  of  the  committee  to  be  sub- 
ject to  the  approval  of  the  Convention. 

The  resolution  was  agreed  to. 

CORPORATIONS. 

On  motion  of  ^Ir.  Braxton:  The  Convention  resolved  itself  into  Committee  of  the 
^Tiole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations. 
Mr.  Ayers  in  the  chair. 

Mr.  Braxton:  Mr.  Chairman,  there  is  a  typographical  error  on  page  8  at  the  end 
of  line  59.  The  word  '"of"  should  be  stricken  out.  Instead  of  "rate  of  charges"  it 
should  be  "  rates,  charges  and  classifications."' 

I  am  authorized  by  the  signers  of  the  majority  report  to  offer  this  change  of 
language  in  the  end  of  Section  8,  beginning  at  line  6-5  and  ending  in  line  71.  The  pur- 
pose for  making  the  change  is  to  include  counties  with  cities  and  towns  in  the  matter 
of  municipal  franchises.  I  move,  therefore,  that  the  words  beginning  in  line  65  with 
the  word  "provided"  and  ending  in  line  71  with  the  word  "franchise"  be  stricken  out, 
and  in  lieu  thereof  this  language  be  inserted: 

Provided,  however,  that  nothing  in  this  section  shall  impair  the  right  which  has 
Tieretofore  been  or  may  hereafter  be  conferred  by  law  upon  any  city,  town  or  county  to 
limit  by  its  municipal  or  county  authority  the  rate  of  charges  to  be  observed  by  any 
public  service  corporation  for  all  services  performed  by  it  tinder  a  municipal  or  county 
franchise  granted  by  such  city,  town  or  county  and  wholly  within  the  limits  of  the  city, 
town  or  county  granting  the  franchise. 

The  amendment  was  agreed  to. 

The  Chairman:  Are  there  any  further  amendments  to  be  proposed  to  subsection  b? 
If  not,  the  Secretary  will  read  the  next  subsection. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


C.  In  all  matters  pertaining  to  the  public  visitation,  regulation  or  control  of  cor- 
porations, and  within  the  jurisdiction  of  the  said  commission,  it  shall  have  the  powers 
and  authority  of  a  court  of  record,  to  administer  oaths,  compel  the  attendance  of 
v/itnesses  and  the  production  of  papers,  to  punish  for  contempt  any  person  guilty  of 
disrespectful  or  disorderly  conduct  in  the  presence  of  the  said  commission  while  in 
session;  and  to  enforce  compliance  v/ith  any  of  its  orders  or  requirements,  entered  by 
It  within  the  scope  of  its  authority,  by  adjudging  and  enforcing,  by  appropriate  execu- 
tive process,  against  the  delinquent  or  offending  company  (after  it  shall  have  been  first 
duly  cited,  proceeded  against  by  due  process  of  lav/  before  the  said  commission  sitting 
as  a  court,  and  afforded  opportunity  to  be  heard,  as  well  against  the  validity,  justness 
or  reasonableness  of  the  order  or  requirement  alleged  to  have  been  violated,  as  against 
the  liability  of  the  company  for  the  alleged  violation),  such  fines  or  other  penalties  as 
may  be  prescribed  or  authorized  by  this  Constitution  or  by  law.  And  the  said  commis- 
sion shall  be  vested  with  such  additional  pov/ers,  and  charged  with  such  other  duties, 
in  connection  with  the  visitation,  regulation  or  control  of  corporations,  or  with  the 
assessment  of  their  property  or  the  appraisement  of  their  franchises  for  taxation,  or 
with  the  investigation  of  the  subject  of  taxation  generally,  and  not  inconsistent  with 
any  of  the  provisions  of  this  Constitution,  as  may  be  prescribed  by  law.  Any  corpora- 
tion failing  or  refusing  to  obey  any  valid  order  or  requirement  of  the  said  commission,  may 
be  fined  by  said  commission  (proceeding  by  due  process  of  law  as  aforesaid)  such  sum, 
not  exceeding  five  hundred  dollars,  as  the  said  commission  may  deem  proper,  or  such 
sum,  in  excess  of  five  hundred  dollars,  as  may  be  prescribed  or  authorized  by  law;  and 
each  day's  continuance  of  such  failure  or  refusal,  after  due  service  upon  said  corpora- 
tion of  the  order  or  requirement  of  the  said  commission  in  question,  shall  be  a  separate 
offence. 

f' 

Mr.  Braxton:  Mr.  Chairman,  in  order  to  make  the  powers  of  the  commission  more 
elastic,  so  far  as  the  powers  of  the  Legislature  is  concerned,  to  extend  its  powers  and 
duties,  I  am  authorized  by  the  committee  to  offer  this  amendment:  Insert  in  line  99, 
after  the  word  "  corporation "  these  words,  "  or  with  the  prescribing  and  enforcing 
of  rates,  charges  or  classification  of  traffic  for  any  public  or  quasi-public  corporation," 
so  that  the  entire  section  would  then  read  as  follows: 

And  the  said  commission  shall  be  vested  with  such  additional  power,  and  charged 
v/ith  such  other  duties,  in  connection  with  the  visitation,  regulation  or  control  of  cor- 
porations, or  with  the  prescribing  and  enforcing  of  rates,  charges,  or  classification  of 
traffic  for  any  public  or  quasi-public  corporation,  and  so  on,  as  may  be  prescribed  by 
law. 

The  amendments  were  agreed  to. 

The  Chairman:    Are  there  any  further  amendments  to  subsection  c? 

Mr.  Thom:  Mr.  Chairman,  I  call  the  attention  of  the  chairman  of  the  committee  to 
line  104  on  that  same  page,  and  I  move  that  the  article  be  amended  by  inserting  the 
words  "within  a  reasonable  time,"  after  the  word  "obey,"  so  that  it  will  read:  Any 
corporation  faifmg  or  refusing  to  obey,  within  a  reasonable  time,  any  valid  order." 

Mr.  Braxton:    I  will  accept  that  amendment,  Mr.  Chairman. 

Mr.  Meredith:  I  submit  it  ought  to  be  made  a  little  more  definite  than  that.  It 
seems  to  me  we  had  better  say  "  reasonable  time  fixed  by  the  commission."  We  should 
not  say  "  a  reasonable  time  "  without  allowing  anybody  to  pass  upon  the  question  of 
reasonableness. 

Mr.  Thom:  I  do  not  know  how  much  difference  there  is  between  the  two  sugges- 
tions. My  object  is  that  whatever  is  a  reasonable  time  should  be  allowed,  and  that 
the  reasonableness  of  that  should  not  be  passed  on  by  the  commission  that  makes  the 
order  finally. 

Mr.  Meredith:  I  submit  to  the  gentleman  from  Norfolk  that  there  is  no  reason 
for  that,  because  the  courts  frequently  fix  a  reasonable  time  within  which  an  order  must 
be  obeyed;  but  if  you  do  not  give  specific  power  to  some  one  person,  then  it  i&  a  ques- 
tion of  litigation;  and  if  they  undertake  to  enforce  it,  they  can  go  into  court  and  say, 
"  I  have  not  had  a  reasonable  time,"  Therefore,  I  think  the  reasonableness  of  the 
time  ought  to  be  fixed  by  somebody,  and  I  do  not  know  anybody  who  ought  to  be  trusted 
with  that  more  than  the  commission. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA.  2467 

Mr.  Braxton:  I  call  the  attention  of  my  friend  from  Norfolk  to  the  amendment 
that  -was  adopted  yesterday  to  subsection  A,  which  provides  that  none  of  these  rates 
cr  regulations  shall  go  into  effect  until  ten  days  after  they  are  made. 

Mr.  Thorn:  I  understand  that.  The  point  I  am  making  is  that  in  a  great  business 
like  that  of  transportation,  the  putting  into  effect  of  additional  facilities  may  not  be 
possible  within  a  ten-day  limit,  nor  is  it  possible  to  foresee  now  what  the  limit  would  be; 
nor  is.  it  right  to  leave  that  matter  to  be  fixed  arbitrarily  by  a  commission, 
when  the  scheme  of  this  article  is  to  give  appeals  from  that  commission.  I  think  a 
reasonable  time  is  all  that  the  law  should  require  within  which  this  should  be  done, 
and  the  tribunals  of  the  country  determine  what  is  a  reasonable  time.  I  do  not  think 
it  reasonable  to  say  that  in  any  arbitrary  way  the  commission  shall  fix  what  that 
reasonable  time  is. 

Mr.  Braxton:  I  will  suggest  to  my  friend,  if  I  am  not  interrupting  him,  that  the 
matter  might  be  reached  in  this  way,  by  saying  "  within  such  reasonable  time  as  shall 
be  named  in  the  order."  Then  if  the  time  named  in  the  order  is  not  reasonable,  it 
would  be  the  subject  of  appeal  like  any  other  thing  named  in  the  order. 

Mr.  Thom:  I  do  not  thmk  an  appeal  is  given  from  all  orders.  I  want  to  bring 
that  up  at  the  proper  point,  but  I  think  there  are  various  orders  that  may  be  entered 
by  the  commission  from  which  there  will  be  no  appeal  under  the  phraseology  of  the 
article.  Therefore  when  you  just  put  in  "  within  a  reasonable  time  "  that  puts  the  whole 
case  on  the  question  of  whether  the  time  is  reasonable. 

Mr.  Meredith:  Here  is  a  commission  to  which  you  give  large  povv^ers-  to  fix  rates, 
and  yet  you  will  not  permit  them  to  say  what  is  a  reasonable  time. 

Mr.  Thom:    I  will  not.    I  do  not  mean  to  say  the  Convention  will  not. 

Mr.  Meredith:  If  it  is  necessary,  Mr.  Chairman,  I  ask  to  amend  the  amendment, 
if  it  is  in  proper  order,  along  the  line  of  the  language  of  the  chairman  of  the  committee. 

Mr.  Thom:  I  have  no  doubt  the  amendments  will  carry,  and  that  my  amendment 
will  be  amended.  At  the  same  time  I  want  to  say  to  the  Convention  that  I  consider 
the  proposition  I  have  presented  as  an  entirely  reasonable  one.  I  think  no  body  ought 
to  have  the  arbitrary  powder  of  making  an  order,  and,  beyond  review,  fixing  a  time 
within  which  that  shall  be  carried  out  and  complied  with,  because  arbitrariness  of  the 
body  Itself  is  the  thing  that  in  justice  ought  to  be  provided  against.  As  has  been  sug- 
gested to  me,  the  present  language  would  permit  this  commission  to  fix  a  time  within 
which  this  should  be  done.  The  idea  I  have  in  offering  the  amendment  is  to  say  that 
what  the  commission  does  shall  be  reasonable  on  that  subject.  I  therefore  move,  Mr. 
Chairman,  that  after  the  word  "  obey "  in  line  104  the  words  "  within  a  reasonable 
time  "  be  inserted. 

Mr.  Braxton:  Mr.  Chairman,  I  desire  to  offer  as  a  subtitute  for  the  amendment 
offered  by  my  friend  from  Norfolk,  to  insert  in  line  105,  after  the  word  "commission" 
these  words:  "within  such  reasonable  time,  not  less  than  ten  days,  as  shall  be  fixed 
in  the  order  or  requirement." 

Mr.  Chairman,  this  provision  as  it  stands  now,  gives  an  appeal  from  any  order  fixr 
ing  rates  and  also  from  any  order  affecting  the  schedule  of  any  transportation  company, 
or  requiring  any  additional  facilities,  conveniences,  or  public  service  of  any  transporta- 
tion or  transmission  company,  and  it  leaves  it  to  the  Legislature  to  grant  appeals  in  any 
other  case,  however  trivial,  without  limit.  It  seem.s  to  me  my  friend  is  mistaken  in  re- 
ferring, in  the  way  in  which  I  take  his  language  to  mean,  to  the  arbitrary  power  of  this 
commission  to  do  everything.  Every  court  has  an  arbitrary  pov/er,  in  that  sense,  to 
do  something,  even  a  justice  of  the  peace  has  arbitrary  power,  if  you  may  so  call  it, 
of  returning  a  judgment  for  less  than  ten  dollars,  against  a  man.  This  commission 
is  in  one  sense  a  court  and  even  if  there  be  an  appeal  in  some  trivial  matters  from  it, 
it  has  no  more  power  in  that  regard  than  any  other  court,  that  is  not  appealable. 

We  have  provided  that  no  other  order  can  go  into  effect  in  less  than  ten  days,  and 
the  effect  of  the  amendment  now  is,  to  say  that  no  order  shall  go  into  effect  in  less 


2468 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


time  than  the  time  fixed  in  the  order,  which  time  shall  be  in  no  event  less  than  ten 
days  and  from  which  if  the  order  be  one  affecting  charges  or  any  of  those  other  essential 
particulars  there  can  be  no  appeal,  as  I  have  explained.  It  does  seem  to  me,  sir,  that 
would  make  it  very  much  better. 

The  objection  I  have  to  it  in  the  form  in  which  my  friend  offered  it,  and  v/hich  I 
did  not  at  first  observe  until  my  attention  was  called  to  it  by  the  gentleman  from  Rich- 
mond (Mr.  Meredith)  is  that  if  you  merely  say  if  shall  go  into  effect  in  a  reasonable 
time,  you  throw  the  whole  matter  into  the  court  right  at  once  as  to  what  is  a  reason- 
able time;  and  the  commission  could  never  act  except  s.ubject  to  the  review  of  the 
courts  on  every  matter  of  that  sort,  however  small  or  trivial  it  might  be.  Our  idea  is 
that  while  the  railroad  should  have  access  to  the  court,  it  should  always  be  by  way  of 
appeal  and  not  by  way  of  original  jurisdiction. 

Mr.  Thom:  Does  my  friend  mean  to  say  that  under  the  article  as  it  would  stand 
if  amended  as  I  suggest  it  it  would  be  beyond  the  jurisdiction  of  this  commission  to 
fix  in  its  order  a  time  which  it  said  was  reasonable,  and  if  it  should  turn  out  on  appeal 
that  that  was  reasonable,  the  carrier  would  be  governed  by  it? 

Mr.  Braxton:  That  may  be,  sir,  but  I  wish  the  carrier,  when  he  goes  into  court 
to  go  in  by  way  of  appeal  and  not  by  any  original  process.  If  the  statement  of  the  case, 
as  I  understand  from  my  friend  is  in  accordance  with  his  view,  I  do  not  see  what  ob- 
jection he  could  have  to  the  language  I  propose,  which  is  that  any  corporation  failing  to 
obey  any  valid  order  or  requirement  of  the  said  commission  v/ithin  such  reasonable 
time,  not  less  than  ten  days.,  as  shall  be  fixed  in  the  order  of  requirement,  may  be  fined 
by  the  commission,  etc. 

Mr.  Thom:  In  that  connection  I  desire  to  ask  my  friend  if  he  will,  at  a  later  stage, 
accept  an  amendment  on  this  question  of  appeal,  as  follov/s: 

On  all  appeals  taken  under  this  article,  the  Appellate  Court  shall  have  jurisdiction 
to  consider  and  determine  the  reasonableness  and  justice  of  the  action  of  the  Corpora- 
tion Commission  complained  of,  as  well  as  any  other  matter  arising  on  such  an  appeal. 

The  object  of  that  is  to  carry  into  the  appellate  court  the  question  of  the  reason- 
ableness of  the  rate  fixed,  and  not  merely  the  question  of  whether  the  commission  deems 
it  reasonable.  If  that  is  accepted,  or  the  equivalent  of  that  idea  is  accepted  I  would 
have  no  objection  to  the  amendment  at  this  point  suggested  by  the  chairman. 

Mr.  Braxton:  I  will  state  to  my  friend  that  as  he  reads  that  to  me  now  I  do  not 
think  there  is  any  objection  to  it.  I  do  not  like  to  commit  myself  absolutely  on  it  until 
I  have  had  a  little  further  time  to  consider  the  language;  but  I  tell  him  frankly  that 
at  present  advised,  I  think  I  will  agree  to  it  as  it  carries  out  in  effect,  if  I  understand 
it  correctly,  what  we  think  we  have  already  provided,  and  if  that  is  true,  there  can  be 
no  objection  to  making  still  clearer  what  is  already  clear. 

Mr.  Thom:  With  that  understanding,  Mr.  Chairman,  and  with  the  privilege  of 
raising  this  question  again  by  my  friend's  consent,  I  will  accept  the  amendment  he  has 
suggested  here. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Augusta. 

The  amendment  was  agreed  to. 

Mr.  Stuart:  I  move  to  strike  out,  in  line  100,  subsection  C,  the  words  "or  with 
the  investigation  of  the  subject  of  taxation  generally." 

My  object  in  moving  that  those  words  be  stricken  out  is  that  the  purposes  for 
which  I  understand  this  commission  to  be  formed  may  be  carried  out  and  that  it  may 
be  limited  to  the  legitimate  and  proper  purposes  of  a  corporate  commission. 

I  find  in  section  3,  which  undertakes  to  create  this  commission,  the  following 
language: 

There  is  hereby  created  a  permanent  commission  composed  of  three  members,  which 
shall  be  known  as  the  State  Corporation  Commission. 


DEBATES  OF  THE  COXSTITrTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


2469 


That  very  clearly  defines  to  my  mind  the  object  of  this  commission,  that  it  shall 
deal  -^-ith  corporations,  whereas,  under  the  language  which  I  have  moved  to  strike  out, 
it  would  at  least  give  a  very  broad  intimation  that  it  was  to  deal  with  other  subjects 
than  corporations.  It  occurs  to  me  that  the  powers  given  to  thi&  commission  in  dealing 
with  corporations  are  broad  and  ample,  and  I  am  in  hearty  accord  with  the  spirit  of 
the  entire  measure,  I  may  say.  I  may  have  some  amendments  to  offer,  or  there  may  be 
amendments  offered  by  others  that  I  will  agree  to  just  as  the  chairman  of  the  committee 
agrees  to  them  but  as  to  the  spirit  of  this  report,  I  am  heartily  in  favor  of  it.  I  do 
think,  however,  we  are  unnecessarily  enlarging  its  powers  at  this  point. 

Again,  if  we  say  that  they  shall  investigate,  and  we  provide  no  power  for  them 
to  formulate  the  results  of  these  investigations,  it  seems  to  me  it  would  be  idle.  Any 
man  has  the  power  already  to  investigate.  There  is  certainly  no  prohibition  on  this 
commission  or  any  other  commission  or  upon  any  individual  to  investigate  anything  as 
much  as  he  pleases,  so  that  the  mere  power  of  investigation,  with  that  power  of  aflBrma- 
tive  action  in  the  way  of  putting  into  force  the  results  of  the  investigation,  seems  to  me 
to  be  almost  nugatory. 

But  that  is  not  its  principle  objection.  It  seems  to  me  it  very  broadly  intimates  a 
power  which  a  corporation  commission  should  not  be  invested  with,  that  is,  dealing 
with  the  subject  of  taxation  generally  as  to  individuals.  To  what  extent  it  might  in- 
vade the  taxing  power  which  we  have  created  in  other  reports  which  have  been  sub- 
mitted to  the  Convention,  it  would  be  hard  to  say.  So  that  I  think,  in  the  first  place, 
the  language  is  harmful  in  the  intimation  that  it  gives;  and  if  not  harmful,  certainly 
I  consider  it  is  altogether  nugatory.  I.  therefore,  move  that  the  language  as  already 
given  be  stricken  out. 

Mr.  Braxton:  Mr.  Chairman,  I  think  my  friend  from  Russell  (Mr.  Stuart),  if  I 
understood  his  remarks,  has  somewhat  misconceived  the  effect  of  the  language  which 
he  objects  to.  The  question  of  taxation,  as  we  all  know,  is  one  of  the  most  difficult  ques- 
tions that  the  law  has  to  deal  with.  It  is  a  practice  which  has  been'indulged  in  for  years 
past,  and  the  Legislatures  from  time  to  time  appoint  commissions  to  investigate  this  sub- 
ject of  taxation,  a  technical  matter  which,  during  the  limited  time  of  the  session  of  the 
Legislature,  the}*  frequently  do  not  have  an  opportunity  to  go  into. 

Many  States  have  established  permanent  standing  taxation  commissioners,  not 
for  the  purpose  of  laying  taxes  at  all,  but  for  the  purpose  of  investigating  the  subject 
of  taxation,  how  it  has  been  done  in  other  States,  what  is  the  latest  and  most  advanced 
thought  on  the  subject,  and  presenting  its  report  to  the  Legislature,  bringing  together 
and  compiling  information  on  the  subject,  with  suggestions  and  so  on,  all  of  which  is 
absolutely  without  effect  as  law  until  the  Legislature  acts  upon  it.  It  is  a  mere  com- 
mittee of  investigation  as  it  were. 

Mr.  Stuart:  Do  you  consider  there  is  any  necessary  connection  between  a  corpora- 
tion commission  and  a  taxation  commission?  Do  you  want  to  invest  this  commission 
v/ith  the  double  power  of  corporations  and  taxation?  I  did  not  know  that  was  in  contem- 
plation. 

Mr.  Braxton:  I  will  endeavor  to  show  that  to  my  friend  in  a  moment.  I  wish  to 
impress  upon  the  committee  not  only  do  we  not  give  this  commission  any  power  of 
taxation,  but  we  do  not  authorize  the  Legislature  to  give  them  any  power  of  taxation. 
We  authorize  the  Legislature  to  require  of  them  such  additional  duties  in  the  line  of 
investigation.  There  is  no  objection,  as  I  understand,  to  their  being  required  to  investi- 
gate and  report  upon  the  question  of  corporate  taxation  how  the  property  of  corpora- 
tions had  better  be  taxed:  and  there  is  no  question  about  the  fact  that  in  investigating 
that  subject  you  must  necessarily  take  into  consideration  how  other  property  must  be 
taxed. 

Now,  as  a  matter  of  fact,  corporation  commissions,  in  a  number  of  other  States, 
have  been  required  by  the  Legislature  to  perform  this  duty  because  it  is  a  cognate  duty 
with  the  investigation  of  the  taxation  of  corporations  that  they  should  also  investigate 


2470 


DEBATES  OF  THE  CONSTITUTIOiiAL  COJ^VEXTIOJsT  OF  VIRGimA. 


the  question  of  taxing  individual  pfoperty.  We  draw  this  distinction,  however,  that 
just  as  the  board  of  public  works  to-day  assesses  the  property  of  certain  corporations, 
it  may  be  possible  that  some  of  these  times  what  is  known  as  the  Connecticut  plan 
of  taxing  corporations  may  be  adopted  in  this  State,  whereby  the  property  of  all  cor- 
porations based  upon  their  stock  and  bonds  is  taxed  from  som-e  central  source.  We 
provide  that  if  that  is  ever  done,  that  central  source  shall  be  the  corporation  commis- 
sion; but  so  far  as  the  taxation  of  individual  property  is  concerned,  you  observe  we 
do  not  say  the  Legislature  can  confer  upon  them  any  powers  in  connection  with  the 
taxation  of  individual  property,  but  simply  powers  in  connection  with  the  investiga- 
tion of  the  subject. 

In  North  Carolina  the  corporation  commission  is  required  by  lav/  to  investigate 
the  entire  subject  of  taxation  and  to  report  it  to  the  Legislature  merely  as  a  means 
of  getting  together  all  the  information  and  facts  there  may  be  on  the  s-ubject.  There 
cannot  be  any  reason  on  earth,  that  I  can  conceive,  why  this  commission  cannot  do  that 
work  just  as  well  as  any  other  commission.  It  is  entirely  in  the  power  of  the  Legis- 
lature, if  the  lines  that  my  friend  refers  to  are  stricken  out,  to  appoint  another  com- 
mission or  to  nam.e  these  identical  men  as  individuals,  as  a  commission  to  do  this  identi- 
cal thing.  Now,  in  order  not  to  require  them  to  do  it — they  may  never  do  it  all — we 
merely  say  that  hereafter  if  the  Legislature  in  its  wis.dom  chooses  to  impose  this  duty 
upon  this  commission,  they  may  do  so,  but  if  they  do  not  want  to  do  it,  if  they  want  to 
appoint  another  commission  to  investigate  this  matter,  they  are  at  perfect  liberty  to 
do  so. 

Therefore,  I  call  the  attention  of  the  committee  to  the  fact  that  the  language  does 
not  say  that  this,  commission  shall  be  charged  with  the  duty  of  investigating  the  sub- 
ject of  taxation,  it  does  not  say  the  Legislature,  if  it  ever  appoints  any  commission  on 
the  subject  may  appoint  this  one.  It  merely  enables  the  Legislature  to  impose  that  ad- 
ditional duty  upon  the  commission  if  they  choose  to  do  it.  It  does  not  require  anything, 
ii  is  merely  an  enabling  act  to  enlarge  the  powers  of  the  Legislature  not  to  enable 
them  to  appoint  a  commission  on  the  subject,  because  they  can  do  that  anyhow,  but  to 
enable  them  to  impose  that  burden  upon  this  particular  body,  which  is  probably  the 
very  best  they  can  find  to  charge  with  the  subject,  but  if  not,  they  can  appoint  another 
body. 

Mr.  Stuart:  Would  the  Legislature  confer  this  authority  on  the  commission  with- 
out the  language  you  use? 

Mr.  Braxton:  No,  sir,  but  it  could  confer  the  authority  on  another  commission 
or  on  the  individuals  of  this  commission. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Russell  (Mr.  Stuart). 

The  amendment  was  rejected. 

Mr.  Thorn:  Mr.  Chairman,  I  do  not  know  that  the  chairman  of  the  committee  will 
have  any  objection  to  the  amendment  I  now  propose,  to  strike  out,  in  line  112,  the 
word  "  shall "  and  insert  in  lieu  thereof  the  word  "  m.ay,"  and  after  the  word  "  be  "  in- 
sert the  word  "deemed,"  so  that  it  w^ill  read:  "And  each  day's  continuance  of  such 
failure  or  refusal,  after  due  service  upon  said  corporation  of  the  order  or  requirement 
of  the  said  commission  in  question  may  be  deemed  a  separate  offense,"  in- 
stead of  the  imperative  requirement,  no  matter  what  the  surrounding  circumstances, 
that  it  will  be  deemed  a  separate  offense,  giving  the  commission  power  to  deem  it  so, 
but  not  absolutely  requiring  it  to  deem  it  so. 

Mr.  Meredith:  I  desire  to  ask  the  gentleman  whether  he  thinks  it  is  possible  for 
a  commission  to  say  whether  a  thing  shall  be  a  crime  or  not.  A  thing  must  be  declared 
bj  the  law  to  be  a  crime.  When  you  say  it  is  to  be  "  deemed,"  deemed  by  whom?  Is 
it  to  be  declared  at  one  time  a  crime  by  the  commission,  and  at  another  time  not  a 
crime?  I  submit  that  it  is  a  violation  of  well  settled  principles  of  law.  You  must  de- 
clare in  the  law  whether  a  thing  is  a  crime  or  not. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


.2  in 


Mr.  Thorn:  V^^e  are  unsettling  some  of  the  principles  of  law  by  this  Constitution. 
Mr.  Meredith:    Vv^ell,  do  not  let  us  unsettle  any  more. 

Mr.  Thorn:  V^Tien  we  unsettle  them  up  to  the  point  of  imposing  a  penalty,  we  at 
least  ought  to  put  it  in  the  power  of  the  punishihg  body  to  consider  the  circumstances 
surrounding  the  case,  and  to  deem  or  not  to  deem  it  a  separate  offense,  merely  for  the 
purpose  of  ascertaining  the  amount  of  the  penalty. 

Mr.  Meredith:  That  is  all  right  as  to  the  imposition  of  the  fine,  but  you  cannot 
leave  it  to  them  to  say  whether  a  thing  shall  be  an  offense  or  not.  You  must  specifically 
state  that  in  the  law. 

Mr.  Thom:  I  do  not  see  any  difficulty  in  the  world  in  saying  that.  It  is  merely 
for  the  purpose  if  ascertaining  the  amount  of  the  penalty  that  shall  be  enforced. 

Mr.  Braxton:  Mr.  Chairman,  it  seems  to  me  this  matter  had  better  be  allowed 
to  stand  as  it  is.  As  stated  by  the  gentleman  from  Richmond  (Mr.  Meredith),  we  are 
stating  what  shall  be  an  offense  punishable  by  fine,  and  it  does  seem  to  me  that  it  would 
be  better  to  leave  it  as  it  is,  to  say  emphatically  that  such  and  such  a  thing  shall  be 
an  offense.  The  danger  my  friend  has  in  mind,  I  suppose,  is  that  under  certain  miti- 
gating circumstances  it  would  be  a  hardship  on  them;  but  observe  that,  although  the  law 
says  it  shall  be  an  offense,  it  says  the  commission  may  fine  them  for  it  anything  from 
one  cent  to  $500.  If  it  is  a  mere  technical  offense,  it  is  an  offense  which  really  amounts 
to  nothing,  the  commission  need  not  put  a  fine  of  over  one  cent  on  them.  So  that  that 
part  of  it  which  leaves  it  entirely  to  the  discretion  of  the  commission  to  make  the  fine 
nominal,  it  seems  to  me,  is  sufficient  latitude  and  leaves  the  matter  wide  enough  open' 
to  aft'ord  all  the  protection  my  friend  would  desire,  because  even  if  you  put  in  the 
language  "  may  be  deemed  an  offense,"  it  is  still  left  with  the  commission  as  to  vrhether 
they  deem  it  an  offense,  and  if  the  commission  can  be  trusted  to  say  whether  it  is  an 
offense,  it  certainly  can  be  trusted  to  say  whether  it  is  a  substantive  offense  that  should 
be  punished  by  a  substanial  fine  or  a  mere  nominal  offense  that  should  be  punished  by 
a  nominal  fine.  I  think  the  language  should  be  left  as  it  is.  I  regret  I  cannot  agree 
with  my  friend  on  that  subject.  I  would  be  glad  to  accept  any  suggestion  from  him 
as  we  go  on,  and  I  do  accept  any  vv-hich  it  is  consistent  to  accept. 

Mr.  Thom:  I  do  not  agree  with  the  legal  position  assumed  by  the  gentleman  from 
Richmond  (Mr.  Meredith).  I  do  not,  however,  desire  to  raise  any  diffictilty  about  a 
difference  between  us  on  a  legal  qtiestion.  I  therefore  suggest  that  instead  of  the  amend- 
ment that  I  at  first  proposed,  the  amendment  shall  be,  in  stead  of  the  word  "shall" 
the  words  "  may,  for  the  purpose  of  determining  of  the  penalty,"  and  then,  after  the 
word  "be,"  the  word  "deemed,"  so  as  to  read:  "After  due  service  upon  said  corpora- 
tion of  the  order  or  requirement  of  the  said  commission  in  question,  and  each  day's 
continuance  of  such  failure  or  refusal,  after  due  service  upon  stich  corporation  of  the 
order  or  requirement  of  the  said  commission  in  question,  may,  for  the  purpose  of  de- 
termining the  amount  of  the  penalty,  be  deemed  a  separate  offense." 

It  means  that  whatever  the  punishment  for  one  day  is,  they  may  or  may  not  multiply 
it  by  the  number  of  days  that  the  failure  or  refusal  to  comply  with  the  order  continues.  It 
leaves  it  to  the  commission  to  say  whether  or  not  under  the  circumstances  of  the  case  they 
will  multiply  the  penalty*  they  denounce  against  one  omission  by  the  number  of  days 
that  the  ommission  has  continued. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Norfolk. 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes  15,  noes  36. 

The  Chairman:    The  Secretary  will  read  subsection  D. 

D.  From  any  action  of  said  commission  prescribing  charges  or  classifications  of 
traffic,  an  appeal,  subject  to  such  reasonable  limitations  as  to  time,  regulations  as  to 
procedure,  and  provisions  as  to  cost  as  may  be  prescribed  by  law — may  be  taken  by 
the  corporation  whose  charges,  or  classifications  of  traffic,  are  affected,  or  by  any  person 
deeming  himself  aggrieved  by  such  action,  or  ijf  allowed  by  law)  by  the  Commonwealth. 


247,^  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

If  such  appeal  be  taken  by  the  corporation  v/hose  charges,  or  classifications  of  traffic, 
are  affected  the  Commonwealth  shall  be  made  the  appellee,  but,  in  either  of  the  other 
two  cases  mentioned,  the  corporations  whose  charges  or  classifications  of  traffic  are 
affected  shall  be  made  the  appellee.  The  General  Assembly  may  also,  by  general  laws, 
provide  for  appeals  from  any  other  action  of  said  commission,  by  the  Commonwealth 
or  by  any  person  interested.  Ail  appeals  from  the  said  commission  shall  be  to  the 
Supreme  Court  of  Appeals  only,  and  in  all  appeals  to  which  the  Commonwealth  shall  be 
a  party,  it  shall  be  represented  in  the  appellate  court  by  the  Attorney-General  or  his 
legally  appointed  representative. 

The  Chairman:    Are  there  any  amendments  to  be  offered  to  sub-section  D? 
Mr.  Braxton:    Mr.  Chairman,  I  am  instructed  by  the  committee  to  offer  the  fol- 
lowing amendments  to  section  D: 

( 

Insert  the  word  "rates"  after  the  word  "Prescribing,"  in  line  114;  in  line  115, 
after  the  word  "traffic,"  insert  this  language:  "Or  affecting  the  train  schedule  of  any 
transportation  company  or  requiring  any  additional  facilities,  conveniences  or  public 
service  of  any  transportation  or  transmission  company;"  then,  in  order  to  make  the 
proper  grammatical  connection,  that  would  result  from  that  change,  the  words  "schedule, 
facilities,  conveniences  or  service "  should  be  inserted  in  line  119,  after  the  word 
"  traffi^c,"  in  line  123  after  the  word  "  traffic,"  and  in  line  125  after  the  word  "  traffic." 

Mr.  Thorn:  Before  a  vote  is  taken  on  that  I  desire  to  ask  the  chairman  of  the 
committee  why  he  puts  the  word  "  rates "  after  the  word  "  prescribing "  in  the  first 
line  and  leaves  it  out  in  lines  114,  118,  122,  and  125. 

Mr.  Braxton:  I  will  state  to  my  friend  that  it  is  an  inadvertence.  The  word 
"  rates  "  should  be  inserted  in  thos.e  places,  and  I  offer  that  as  a  further  amendment. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendments  proposed  by  the 
chairman  of  the  committee. 

The  amendments  were  agreed  to. 

At  this  point  Mr.  Eggleston  took  the  chair. 

Mr.  Thorn:  After  the  word  "  cost,"  in  line  117,  which  I  suppose  ought  to  be  "  costs," 
in  the  plural — 

Mr.  Braxton:    Yes,  sir,  it  should  be  "costs." 

Mr.  Thorn:  After  that  word  I  should  lilve  to  move  to  insert  the  words  "if  any." 
I  suppose  it  is  the  purpose  of  my  friends  on  the  committee  to  grant  an  appeal  in  all 
these  matters  covered  by  this  subsection.  The  article  has  so  far  created  a  jurisdiction 
in  the  commission  itself  adequate  to  the  establishment  of  all  the  rates  and  dealing  with 
all  the  facilities  that  must  be  afforded  by  the  railroad  companies  and  by 
the  transmission  companies.  Now,  when  we  come  to  the  matter  of  appeal, 
as  the  article  now  reads,  there  is  no  appeal  until  affirmative  legislation  by 
the  General  Assembly  is  provided.  My  friend  has  referred  to  the  difficulty 
in  securing  affirmative  legislation  by  the  General  Assembly,  and  has  said  that 
while  it  may  be  very  easy  to  prevent  legislation  it  is  exceedingly  difficult  for  these  inter- 
ests to  secure  affirmative  legislation.  Until  such  legislation  as  that  has  been  obtained, 
then  there  is  no  appeal.  This  article  will  go  into  operation  only  to  the  extent  of  creat- 
ing in  the  commission  the  power  to  prescribe  rates,  the  power  to  deal  with  all  these 
facilities  that  must  be  afforded,  and  creates  in  itself  no  appeal.  The  object  of  these 
words  I  propose  to  insert  is  that  there  shall  be  an  appeal  at  the  very  moment  that  the 
jurisdiction  is  created  in  the  commission  to  deal  with  these  subjects,  but  that  the 
General  Assembly  shall  have  the  right  at  any  time  it  sees  fit  to  pres.cribe  reasonable 
limitations  as  to  time,  regulation  as  to  procedure,  and  provisions  as  to  costs,  but  in  the 
absence  of  any  such  provision,  the  appeal  may  still  be  heard. 

Mr.  Braxton:  I  at  first  thought  when  you  said  "if  any,"  you  meant  it  to  apply  to 
costs;  but  you  mean  it  to  apply  to  reasonable  limitations? 

Mr.  Thorn:  Yes,  sir;  "if  any  be  so  prescribed,"  and  that  will  leave  the  matter  of 
an  appeal  to  apply  at  the  same  time  the  jurisdiction  of  the  commission  applies,  but 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2473 


that  appeal  may  be  hereafter  limited  by  the  General  Assembly  in  the  manner  mentioned 
here,  of  limitations  as  to  time,  regulations  as  to  procedure  and  provisions  as  to  cost. 

Mr.  Braxton:  I  am  authorized  to  say  for  the  committee,  or  for  the  majority  of  the 
committee  such  as  I  have  been  able  to  confer  with  here,  that  in  their  opinion  the  pur- 
pose the  gentleman  desires  to  accomplish  is  accomplished  by  the  language  as  it  is  now, 
which  says  that  it  is  subject  to  such  reasonable  limitations,  etc.,  as  may  be  prescribed. 
It  does  not  require  that  there  shall  be  any  prescribed  before  there  shall  be  an  appeal, 
but  it  says,  there  shall  be  an  appeal  and  that  appeal  shall  be  subject  to  any  limitation^, 
they  may  prescribe.  If  they  prescribe  no  limitations  it  is  subject  to  no  limitation, 
but  if  they  do  prescribe  them  then  it  is  subject  to  them. 

Mr.  Green:  There  is  a  provision  here  for  an  appeal,  and  that  appeal  is  subject 
to  such  regulations  about  the  time,  etc.,  as  the  Legislature  may  prescribe.  Suppose 
the  Legislature  does  not  prescribe  any,  it  does  not  take  away  the  right  of  appeal? 

Mr.  Wysor:  Not  at  all.  The  provision  is  not  self-executing.  Of  course  it  is  pre- 
sumed the  Legislature  will  pass  proper  acts  providing  for  the  appeal.  The  language 
of  the  article  does  give  an  appeal. 

Now  I  want  to  refer  to  the  words  inserted  by  the  gentleman  from  Norfolk.  I  say 
they  do  not  mean  anything.  I  am  opposed  to  amending  our  language,  which  is  good, 
by  putting  an  expression  in  it  that  does  not  add  to  it  or  take  from  it.  The  section  pro- 
vides that: 

Prom  any  action  of  said  commission  prescribing  charges  or  classifications  of  traffic, 
etc.,  an  appeal  may  be  taken,  subject  to  such  reasonable  limitations  as  to  time,  regula- 
tions as  to  procedure,  and  provisions,  as  to  cost,  as  may  be  prescribed  by  law. 

The  gentleman  from  Norfolk  (Mr.  Thorn)  wishes  to  insert  these  words,  "  if  any 
may  be  so  prescribed." 

The  article  says  exactly  the  same  thing  without  as  it  would  with  these  words  in- 
serted. Their  insertion  woiikl  make  the  diction  very  bad.  We  have  not  only  written 
a  good  article,  but  it  is  written  in  good  diction,  and  we  do  not  want  the  diction  spoiled. 

I  hope  the  amendment  offered  by  the  gentleman  from  Norfolk  will  be  voted  down. 

Mr.  Thorn:  Mr.  Chairman,  by  asking  to  insert  a  few  words,  I  was  desiring  to 
avoid  v/ounding  the  sensibilities  of  my  friends  to  as  great  an  extent  as  possible  in  refer- 
ence to  their  diction.  I  knew  there  was  doubtless  some  pride  of  ownership  about  the 
matter,  and  I  did  not  want  to  disturb  that  any  more  than  was  necessary.  I  believed 
then  and  I  believe  now  that  the  v/ords  which  I  have  suggested  to  be  put  in  v/ould  ac- 
complish the  same  purpose.  I  believe  my  friends  here  have  suddenly  discovered  a 
method  of  doing  something  which  their  article,  as  prepared,  never  contemplated.  That 
is,  that  an  appeal  should  be  had  prior  to  action  by  the  General  Assembly,  because 
when  I  get  to  subsection  F,  I  find  it  is  expressly  provided  that  "  the  General  Assembly 
shall  provide  by  law  for  the  certification  by  said  commission  to  the  appellate  court, 
of  all  the  facts  or  evidence." 

How  does  it  go  up  without  the  General  Assembly  acting?  I  do  not  believe  my  friends 
had  properly  considered  this  matter;  but  to  make  it  plain — 

Mr.  Green:  In  lines  126,  127  and  128  there  is  further  provision  that  "the  General 
Assembly  may  also,  by  general  laws,  provide  for  appeals  from  any  ofner  action  of  the 
said  commission."  That  authorizes  appeals  operating  proprio  vigore,  under  this  Con- 
stitution, but  the  General  Assembly  cannot  take  away  that  right  of  appeal.  It  can 
direct  the  mode  of  procedure.  Then  they  direct  further  that  in  other  cases  the  General 
Assembly  may  provide  for  appeals. 

Mr.  Thom:  The  distinction  is  not* such,  to  my  mind,  as  is  suggested  to  the  mind 
of  my  friend  from  Danville  (Mr.  Green).  In  the  first  place  there  is  an  appeal,  subject 
to  certain  rules  and  regulations  to  be  prescribed  by  the  General  Assembly.  That  ap- 
plies to  certain  cases.  There  are  additional  cases  in  which  an  appeal  may  be  allowed 
by  the  General  Assembly.  The  appeal  in  the  first  case  is  allowed,  but  subject  to  action 
by  the  General  Assembly  on  matters  not  referring  to  the  appeal,  but  referring  to  the 
1.56 — Const.  Deb. 


2474:  DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 

procedure.  In  the  second  case,  not  only  the  procedure  is  left  to  the  General  Assembly, 
but  the  right  of  appeal  as  well.. 

Now,  if  this  is  the  purpose  of  my  friends,  why  not  put  in  tliis  language;  and  I  am 
obliged  to  interfere  somewhat  with  the  workmanship  of  this  article  in  order  to  do  that: 
Strike  out  the  words  "  subject  to  such  reasonable  limitations  as  to  time,  regulations 
and  procedure,  and  provisions  as  to  costs,  as  may  be  prescribed  by  law,"  and  ins«rt 
in  line  121,  after  the  word  "Commonwealth,"  a  semi-colon  and  these  words:  "but  the 
General  Assembly  may,  at  any  time,  precribe  such  limitations  as  to  time,  regulations 
as  to  procedure,  and  provisions  as  to  costs,  as  the  public  interests  may  require,  and 
until  such  action  by  the  General  Assembly,  the  Supreme  Court  of  Appeals  shall  pre- 
scribe rules  for  such  appeal." 

As  that  seems  to  be  preferred  by  some  m^embers  of  the  committee,  I  will  move, 
In  place  of  the  motion  I  have  already  made,  to  strike  out  the  words  beginning  in  line 
115,  and  ending  in  line  118,  as  follows:  "subject  to  such  reasonable  limitations  as 
tc  time,  regulations  as  to  procedure,  and  provisions  as  to  cost,  as  may  be  prescribed 
by  law,"  that  a  semi-colon  be  placed  after  the  word  "  Commonwealth  "  in  line  121,  and 
to  follow  that  by  these  words:  "but  the  General  Assembly  may  at  any  time  prescribe 
such  limitations  as  to  time,  regulations  as  to  procedure,  and  provisions  as  to  costs,  in 
such  appeals,  as  the  public  interest  may  require,  and  until  such  action  by  the  General 
Assembly,  the  Supreme  Court  of  Appeals  shall  prescribe  rules  governing  such  appeal." 

Mr.  Wysor:  I  wish  to  say,  Mr.  Chairman,  that  that  article  gives  an  appeal  in  un- 
mistakable language,  and  leaves  it  to  the  Legislature  to  provide  for  that  appeal.  It  is 
the  most  violent  presumption  in  the  world  to  suppose  the  Legislature  will  not  do  it. 
It  is  their  duty  to  do  it  as  one  of  the  departments  of  the  government.  Now,  take  other 
appeals.  They  are  provided  for  in  the  Constitution,  but  the  Legislature  makes  pro- 
vision for  taking  those  appeals  and  he  wants  to  offer  this  article  simply  because  there 
are  no  provisions  for  taking  the  appeal  immediately.  It  is  on  the  assumption  that 
the  Legislature  will  not  do  its  duty  in  the  premises.  I  say  that  is  a  violent  presump- 
tion, and  I  shall  oppose  any  change  at  all  myself  in  the  article.  I  do  not  know  what 
the  other  members  of  the  committee  are  going  to  do. 

The  language  offered  by  the  gentleman  is  no  better  than  we  use.  We  give  an  ap- 
peal in  express  terms.  It  is  left  for  the  Legislature  to  provide  for  that  appeal,  and 
I  say  the  Legislature  will  do  it.  I  hope  it  will  be  the  pleasure  of  the  committee  to 
vote  for  the  article  just  as  we  have  brought  it  in  here  in  our  report. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  my  friend  from  Pulaski  (Mr.  Wysor) 
seems  to  forget  the  fact  that  this  provision,  when  incorporated  in  the  Cons.titution,  goes 
immediately  into  effect,  proprio  vigore,  and  where  is  the  right  of  appeal  until  the  Legis- 
lature does  that.  This  commission  may  be,  and  probably  will  be,  in  operation  for  twelve 
months  before  any  General  Assembly  m^ay  act  upon  the  subject.  Where,  then,  would 
be  the  remedy  given  of  appeal,  in  plain  and  distinct  terms,  such  as  the  courts  may  de- 
cide should  have  been  given? 

Now,  my  distinguished  friend,  whom  I  think  I  may  fairly  denominate  the  poet 
laureate  of  this  Convention,  the  gentleman  from  Pulaski,  seems  to  be  oblivious  of  the 
fact  that  this  article,  which  is  so  familiar  to  us,  goes  immediately  into  effect,  and  that 
cas.e  after  case  may  arise  under  it  before  the  Legislature  does  provide  how  an  appeal 
shall  be  taken. 

It  goes  with  great  particularity  into  all  the  other  matters  of  detail  in  reference 
tc  this  legislation.  Why  should  it  not  go  also  with  the  necessary  particularity  into 
the  question  of  giving  an  ample  remedy  to  either  party  aggrieved  by  any  ruling  of  this 
com_mission?  That  is  all  this  proposed  amendment  contemplates,  that  an  ample  remedy 
shall  be  given,  from  the  time  this  commission  is  established,  to  every  suitor,  whether  it 
be  a  citizen  of  the  Commonwealth  or  a  common  carrier,  in  order  that  an  appeal  may  be 
taken  to  the  Supreme  Court  without  any  question,  and  the  matter  finally  settled  by  the 
adjudication  of  that  tribunal. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


Mr.  Braxton:  Mr.  Chairman,  I  think  this  language  will  meet  the  views  of  my  friend 
from  Norfolk  (Mr.  Thom),  as  well  as  the  views  of  the  committee — to  allow  the  language 
to  remain  as  it  is,  hut  to  add,  after  the  word  "  Commonwealth,"  in  line  121,  this  new 
sentence: 

Unless  and  until  otherwise  provided  by  law,  such  appeals  shall  be  taken  according 
to  the  same  method  of  procedure  in  which  appeals  are  now  taken  to  the  Supreme  Court 
of  Appeals  from  the  inferior  courts,  except  that  such  an  appeal  shall  be  an  appeal  of 
right,  and  the  Supreme  court  of  Appeals  may  provide  by  rule  for  the  proceedings  in 
the  matter  of  appeals  in  any  particulars  in  which  the  existing  rules  of  law  are  inappli- 
cable. 

I  am  authorized  hy  the  committee  to  oifer  that  as  an  additional  sentence  to  go  in 
after  the  word  "  Commonwealth,"  in  line  121. 

The  Chairman:    Does  the  gentleman  from  Norfolk  withdraw  his  amendment? 
Mr.  Thom:    Yes,  sir. 

Mr.  Green:  Mr.  Chairman,  I  shall  vote  for  that  amendment,  at  the  request  of  the 
chairman  of  the  committee,  but  I  wish  to  reiterate  that  every  word  that  is  in  that  amend- 
ment is  right  here  now  in  this  article  as  it  stands,  and  it  is  utterly  idle  to  put  it  on. 

Mr.  Braxton:  I  thought  the  same  thing,  hut  out  of  the  abundance  of  caution,  I  do 
not  see  how  any  harm  could  come  of  it,  and  it  would  certainly  make  it  safer.  My  own 
view  was  just  as  the  gentleman  has  indicated,  that  that  would  he  the  effect  of  the  article 
ae  it  is.  I  hope,  however,  the  amendment  will  be  adopted,  so  as  to  put  it  beyond  all 
peradventure.  We  do  not  want,  if  possible,  to  have  any  question  of  constitutionality 
affect  this  statute. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Augusta. 

The  amendment  was  agreed  to. 

The  Chairman:    The  Secretary  will  read  sub-section  B. 

E,  No  action  of  the  said  commission  prescribing  or  affecting  the  charges,  or  classi- 
fications of  traffic,  of  any  transportation  or  transmission  company  shall  be  delayed  or 
suspended  in  its  operation  by  reason  of  any  appeal  by  such  corporation,  or  of  any  pro- 
ceedings resulting  from  such  appeal,  prior  to  the  final  reversal  of  such  order  by  the 
appellate  court,  unless  and  until  a  suspending  bond,  payable  to  the  common- 
wealth, sufficient  in  amount  and  security  to  ensure  the  prompt  refunding 
by  the  appealing  corporation,  to  the  parties  entitled  thereto,  of  all  over- 
charges on  the  rate  of  charges  or  classification  of  traffic,  appealed  from, 
that  such  company  may  collect  or  receive  pending  said  appeal,  shall  first  have  been 
executed,  filed  with,  and  approved  by  the  said  commission,  which  shall  forthwith  require 
the  appealing  company  (under  penalty  of  the  immediate  enforcement,  pending  the 
appeal,  of  the  order  or  requirement  appealed  from)  to  keep  such  accounts,  and  make  to 
the  commission,  from  time  to  tim^e,  such  reports,  verified  by  oath,  as  m.ay,  in  the  judg- 
ment of  said  commission,  suffice  to  show  the  amount  being  charged  or  received  by  the 
company,  pending  the  appeal,  in  excess  of  the  charge  allow^ed  by  the  action  of  the  com- 
mission appealed  from,  together  with  the  names  and  addresses  of  the  persons  to  whom 
such  overcharges  will  be  refundable  in  case  such  action  be  not  reversed;  and  said  com- 
mission shall  also,  from  time  to  time,  require  such  company,  under  like  penalty,  to 
give  additional  security  in,  or  increase  the  said  suspending  bond,  whenever,  in  the 
opinion  of  the  commission,"  the  same  may  be  necessary  to  insure  the  prompt  refunding 
of  the  overcharge  aforesaid.  Upon  the  final  decision  of  such  appeal,  all  money  which 
the  appealing  company  may  have  collected,  pending  the  appeal,  in  excess  of  that 
authorized  by  such  final  decision,  shall  be  promptly  refunded  to  the  parties  entitled 
thereto,  in  such  manner  as  may  be  prescribed  by  the  commission,  or  by  law.  All  such 
appeals  affecting  rates  of  charges  or  classifications  of  traffic  shall  have  precedence  upon 
the  docket  of  the  appellate  court,  and  shall  be  heard  and  disposed  of  prom-ptly  by  the 
court,  irrespective  of  its  place  of  session,  next  after  the  habeas  corpus,  and  Common- 
wealth's cases  already  on  the  docket  of  the  court. 

Mr.  Braxton:    In  line  145,  the  word  "rate"  should  be  plural,  and  the  word  "of," 
Immediately  after  it,  should  be  erased.   It  should  read  "rates,  charges,  or  classifications." 
In  line  165,  the  word  "money"  ought  to  be  "amounts." 


24T6  DEBATES  OF  THE  COXSTITrTIOXAL  CONVENTION  OE  VIRGINIA. 

The  Chairman:    In  the  absence  of  objection,  the  amendments  indicated  will  be 
adopted.   Are  there  any  further  amendments  to  sub-section  F. 
The  Secretary  read  as  follows: 

P.  In  no  case  of  appeal  from  the  said  commission  shall  any  new  or  additional 
evidence  be  introduced  in  the  appellate  court,  but  the  General  assembly  shall  provide 
by  law  for  the  certification  by  said  commission  to  the  appellate  court,  of  all  the  facts 
or  evidence  upon  which  the  action  appealed  from  was  based,  and  which  may  be  essential 
for  the  proper  decision  of  the  appeal  therefrom.  The  said  commission  shall,  whenever 
an  appeal  is  taken  therefrom,  file  with  the  record  of  the  case,  and  as  a  part  thereof,, 
a  written  statement  of  the  reasons  upon  which  the  action  appealed  from  was  based, 
and  such  statement  shall  always  be  read  and  considered  by  the  appellate  court  upon 
disposing  of  the  appeal,  and  the  action  of  the  commission  appealed  from  shall  be  regarded 
as  prima  facie  just,  reasonable  and  correct;  but  the  court  may,  when  it  deems  necessary, 
in  the  interest  of  justice,  remand  to  the  said  commission  any  case  pending  on  appeal, 
and  require  the  same  to  be  further  investigated  by  the  commission,  and  reported  upon 
to  the  court,  before  the  appeal  is  finally  decided. 

Mr.  Thorn:  I  should  like  to  ask  the  chairman  of  the  committee  if  he  will  not  make, 
in  reference  to  that  matter,  the  same  general  provision,  or  some  substantially  similar 
provision,  as  he  made  in  reference  to  sub-section  D.  There  is  a  requirement  of  an  affirm- 
ative action  by  the  General  Assembly  before  any  record  can  be  gotten  up  to  the  Court  of 
Appeals,  and  that  matter  ought  to  be  reconciled  with  the  theory  which  has  been  con- 
ceded here  by  the  convention  to  be  just  that  prior  to  the  assembling  of  the  General 
Assembly  some  method  or  rule  of  certification  of  record  should  be  had,  not  dependent 
upon  prior  action  by  the  General  Assembly.  If  this  is  allowed  to  stand  as  it  is,  there 
could  be  no  appeal  until  affirmative  action  by  the  General  Assembly. 

Mr.  Braxton:  It  seems  to  me  the  same  reason  applies  there  as  to  sub-section  D, 
and  I  see  no  objection  to  providing  that  the  method  now  followed  of  certifying  a  record 
to  the  court  shall  prevail.  I  offer  this  amendment,  to  be  inserted  in  line  182,  after  the 
word  "therefrom,"  to  be  separated  by  a  semi-colon:  '"But  until  provision  shall  be  other- 
wise made  therefor  by  law,  such  facts  or  evidence  shall  be  certified  to  the  appellate 
court  by  the  chairman  of  the  commission  under  the  seal  of  the  commission.'"' 

That  meets  the  view,  as  I  understand,  of  the  gentleman  from  Norfolk. 

Mr.  Thorn:    Yes,  sir. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Augusta. 

The  amendment  was  agreed  to. 

Mr.  Thom:  Mr.  Chairman,  in  lines  188  and  189,  on  page  14,  I  call  attention  to  the 
language :  "And  the  action  of  the  commission  appealed  from  shall  be  regarded  as  prima 
facie  just,  reasonable  and  correct."  So  far  as  I  know,  the  only  thing  that  approaches  a 
precedent  for  a  provision  of  that  sort  is  to  be  found  in  the  Interstate  Commerce  Commis- 
sion act.  I  do  not  know  whether  there  is  a  copy  of  it  here  or  not.  If  any  one  has  it,  I 
can  read  that  provision;  but  I  can  quote  it  substantially  from  memory.  The  provision  of 
the  Interstate  Commerce  act  is  that  findings  of  fact  by  the  commission  shall  be  con- 
sidered as  prime  facie  correct.  That  is  as  far  as  I  think  this  ought  to  go,  and  it  is  as  far 
as  I  hope  my  friends  intend  it  to  go. 

The  language  as  it  now  stands  is  entirely  new,  and  what  effect  it  will  have  when 
construed,  it  is  impossible  to  forecast.  I  cannot  even  say  whether  the  effect  will  not  be 
tc  put  the  case  in  the  Appellate  Court  as.  if  on  demurrer  to  evidence.  I  hope  my  friend 
will  see  fit  to  accept  an  amendment  providing  that,  in  place  of  what  they  have  there, 
there  will  be  a  provision,  "and  the  findings  of  fact  by  said  commission  shall  on  appeal, 
be  regarded  as  prima  facie  correct." 

Mr.  Braxton:  Mr.  Chairman,  I  just  sent  out  to  get  a  book  that  I  thought  had  some 
authorities  on  it,  but  I  regret  to  say  I  cannot  agree  with  my  friend  on  this  matter. 

It  seems  to  me,  sir,  that  the  decision  of  the  commission,  not  only  on  a  question  ol 
fact,  but  as  to  the  justice  and  reasonableness  of  the  regulation  of  the  rate  ought  to  be,. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  A^IEGIXIA.  2^77 

and  should  certainly  be,  prima  facie  correct.  It  seems  to  me  it  is  a  decision  of  a  body  of 
experts  on  a  matter  upon  which  they  are  called  upon  particularly  to  pass,  and  about 
which  they  are  supposed  to  have  peculiarly  good  judgment.  I  think  that  there  should 
be  given  great  weight  to  their  decision  and  that  the  court  ought  not  to  set  it  aside  unless 
it  is  manifestly  unjust  or  unreasonable. 

When  we  say  the  railroad  company  has  a  right  to  go  into  court  to  have  the  court 
review  this  m.atter  I  think  we  have  given  them  all  the  protection  that,  in  justice,  they 
could  ask,  or  that  the  law  or  the  Constitution  of  the  United  States  requires.  I  think  it  is 
not  unreasonable  to  say  that  when  this.  Constitution  has  established  a  body  for  the  pur- 
pose of  fixing  the  rates,  it  should  say  that  when  that  body  has  performed  the  function  for 
which  it  was  created,  its  action  and  its  judgment  shall  at  least  prima  facie  be  right  and 
not  prima  facie  wrong.  I  think  that  every  legitimate  weight  that  can  be  given  to  the 
sentence  and  the  justice  and  the  reasonableness  of  their  opinion  should  be  given  to  it 
by  the  court,  short  of  saying  that  the  court  is  absolutely  bound  by  it. 

In  referring  to  this  matter,  the  United  States  Supreme  Court,  in  the  case  of  Reagan 
vs.  Farmers'  Loan  &  Trust  Company,  154  U.  S.,  page  395,  referring  to  the  rates  estab- 
lished by  commission,  uses  this  language: 

And  if  the  rates  established  by  the  commission  are  not  conclusive,  they  are  at  least 
prima  facie  evidence  of  what  is  reasonable  and  just. 

I  think,  therefore,  that  so  far  as  mere  authority,  without  weight  of  reason  behind  it, 
goes,  we  have  the  authority  of  the  Supreme  Court  that  the  decisions  of  the  commission 
are  at  least  reasonable  and  just,  but  not  absolutely  conclusive;  and  to  put  that  matter  at 
rest,  to  show  that  the  court  in  reviewing  this  matter  must  not  disregard  the  opinion  of 
the  commission,  but  must  attach  great  weight  to  it,  and  must  only  set  it  aside  when  it  is 
manifestly  wrong,  we  say  they  must  regard  it  as.  prima  facie  just,  the  burden  of  proof 
being  on  those  who  attack  it  to  say  it  is  not  so ;  and  that  while  they  have  the  right  to  set 
it  aside  they  must  give  it  that  weight  to  which  it  is  entitled  by  being  prima  facie  just 
and  reasonable. 

I  am,  therefore,  unable  to  agree  with  my  excellent  and  learned  friend  in  reference  to 
this  matter;  and  I  shall  have  to  ask  that  the  committee  do  not  accept  this  amendment 
which  he  proposes  "to  offer  on  this  subject,  but  will  adhere  to  the  language  of  the  report. 

In  all  this  matter,  I  wish  to  state  to  the  committee  that  I  try  to  receive  all  these 
suggestions  without  any  pride  of  opinion,  and  to  accept  every  one  of  them  that  seems  to 
us  to  be  meritorious.  Those  we  are  rejecting  we  reject  not  merely  because  they  inter- 
fere with  us,  not  on  any  idea  that  our  report  is  perfect  and  cannot  be  improved  upon,  but 
merely  when  we  believe  they  are  substantially  erroneous.  I  think  this  amendment  is 
substantially  in  error  and  I  hope  it  will  be  the  pleasure  of  the  committee  not  to  accept 
it,  but  let  the  report  stand  as  it  is  in  that  respect. 

Mr.  O'Flaherty:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  gentleman  to  the 
fact  that  the  decision  that  he  quotes  does  not  go  as  far  as  the  language  of  this  report. 
If  you  will  notice  what  you  read,  it  says  that  the  decision  shall  be  evidence  of  what  is 
reasonable,  &c.  I  think  that  is  quite  different  from  saying  that  the  decision  itself,  the 
action  of  the  commission  appealed  from,  shall  be  regarded  as  prima  facie  just,  reason- 
able and  correct.  As  to  the  question  of  fact,  I  believe  the  finding  of  the  commission 
ought,  to  be  evidence  of  the  fact  that  it  is  prima  facie  right,  and  that  is.  as  far  as  the 
decision  you  have  quoted  from  goes.  It  says  it  shall  be  evidence  of  the  reasonableness; 
but  you  say  the  finding  of  the  commission  shall  be  prima  facie  correct. 

Now,  I  wish  to  call  attention,  if  I  am  right  in  this  matter,  to  the  further  fact  that  the 
finding  of  this  commission  is  prima  facie  correct  as  to  the  matter  of  law.  A  matter  of 
fact  is  a  rebutable  conclusion,  but  a  presumption  of  law  is  an  irrebutable  conclusion;  and 
when  you  say  its  justness  and  its  reasonableness  shall  be  prima  facie  correct,  you  go  into 
the  realm  of  law  and  equity,  and  you  raise  a  barrier  that  has  never  been  raised,  as  I 
understand,  in  appeals. 


2478  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  am  simply  calling  the  attention  of  the  committee  to  that  fact,  which  I  suppose  in  its 
wisdom  it  has  considered.  I  do  not  wish  to  put  upon  anybody  who  is  appealing  any 
greater  burden  than  they  ought  to  have;  and  while  I  do  not  know  exactly  what  the  lan- 
guage of  the  gentleman  from  Norfolk  (Mr.  Thom)  is,  I  thought  of  moving  to  strike  this 
out  for  that  reason.  I  do  not  know  the  exact  language  of  the  motion  of  the  gentleman, 
but  I  simply  call  attention  to  the  fact  that  here  you  are  going  further  than  our  Supreme 
Court  has  gone.  You  are  going  further  than  the  decision  which  you  have  read  has  gone,, 
because  as  I  remember  the  decision  of  Chapman  vs.  Somebody,  the  present  Supreme 
Court  of  Appeals  decided  that  the  report  of  a  commissioner  in  chancery  was  not  even 
prima  facie  correct  as  to  the  finding  of  fact.  Now,  you  go  further  than  that  and  say 
that  the  reasonableness  of  what  has  been  done,  the  justice,  the  equity  and  the  finding  of 
the  fact  and  all,  shall  be  prima  facie  correct,  and  the  man  goes  to  the  Court  of  Appeals 
handicapped  to  that  extent.    I  only  wish  to  call  attention  to  it. 

Mr.  Braxton:  Mr.  Chairman,  I  can  only  say  that  the  committee  has  considered  aa 
well  as  they  are  capable  of  doing  the  suggestions  my  friend  has  made,  and  without  under- 
taking to  discuss  the  matter  longer,  we  came  to  the  conclusion  we  reached  in  the  light 
of  the  suggestions  that  the  gentleman  makes.  They  did  not  seem  to  the  committee  to  be 
sound. 

Mr.  Thorn:  Mr.  Chairman,  as  I  understand  the  decision  in  154  United  States,  from 
which  my  friend  read,  that  was  a  proceeding  arising  under  the  Interstate  Commerce  act, 
and  is  a  construction  as  to  the  effect  of  that  act.  Now  the  language  of  the  Interstate 
Commerce  act  is  what  I  shall  now  read — 

Mr.  Braxton:  I  should  like  to  correct  my  friend.  The  decision  referred  to  was  in 
the  Texas  railroad  commision  act,  and  not  in  the  Interstate  Commerce  act.  If  I  said 
"Interstate"  I  did  so  through  inadvertence. 

Mr.  Thorn:  However  that  may  be,  the  language  of  the  Interstate  Commerce  act 
contained  twice  in  that  act  is  as  follows: 

In  section  14  it  is  provided:  Such  finding,  so  made,  shall  thereafter  in  all  judi- 
cial proceedings  be  deemed  prima  facie  evidence  as  to  each  and  every  fact  found. 

And  in  section  16  is  the  following: 

And  on  such  hearing,  the  findings  of  fact  in  the  report  of  said  commission  shall  be 
prima  facie  evidence  of  the  matters  therein  stated. 

It  does  seem  to  me,  Mr.  Chairman,  that  that  is  as  far  as  we  ought  to  go.  I  quite 
agree  with  the  gentleman  from  Warren  (Mr.  O'Plaherty)  that  the  language  of  the  pro- 
posed article  is  something  entirely  new  in  judicial  procedure.  It  has  no  relation  except 
merely  as  to  the  findings  of  fact  on  which  the  Supreme  Court  of  Virginia  shall  consider 
the  action  of  the  court  below. 

Now,  how  that  will  be  developed  by  judicial  interpretation,  there  is  no  one  of  us  wise 
enough  now  to  forcast,  and  it  seems  to  me  that  all  that  any  reasonable  man  can  ask  in 
this  regard  in  that  the  findings  of  fact  on  which  the  conclusions  of  the  Coporation  Com- 
mission which  are  under  review  shall  be  considered,  are  the  only  things  that  shall  be 
taken  as  prima  facie  correct.  I  therefore  ask  that  instead  of  the  language  contained 
in  the  report  this  language  be  inserted: 

And  on  the  hearing  in  the  appellate  court  the  findings  of  fact  of  the  said  corpora- 
tion commission  shall  be  prima  facie  evidence  of  the  matters  therein  stated. 

Mr.  Braxton:  Mr.  Chairman,  the  Interstate  Commerce  Commission  has  no  right  to 
fix  rates.  It  can  only  denounce  rates,  and  it  seems  to  me  the  case  is  not  exactly  anala- 
gous  to  this  one. 

The  Chairman:    The  question  is  upon  the  adoption  of  the  amendment  proposed  by 
the  gentleman  from  Norfolk  (Mr.  Thom.) 
The  amendment  was  rejected. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


24T9 


Mr.  Thorn:  Mr.  Chairman,  going  back  now  to  line  180,  on  the  previous  page,  I  wish 
to  call  the  attention  of  the  chairman  of  the  committee  to  the  language  there  which  seems 
to  me,  upon  consideration,  to  require  some  change.  I  do  not  know  from  the  language 
which  I  am  now  alluding  to  whether  it  would  he  within  the  power  of  the  commission  or 
of  the  General  Assembly  to  certify  or  require  the  certification  of  either  the  facts  of  the 
evidence,  as  that  tribunal  might  determine.  I  do  not  know  the  views  of  the  chairman  on 
that  subject,  but  I  would  suggest  that  the  words  "the  facts  or"  be  stricken  out,  and  that 
the  words  "witn  the  findings  of  fact"  be  inserted  after  the  word  "evidence"  in  the  same 
line,  so  that  the  clause  will  read: 

But  the  General  Assembly  shall  provide  by  law  for  the  certification  by  said  com- 
mission to  the  appellate  court,  of  all  the  evidence  with  the  findings  of  fact  upon  which 
the  action  appealed  from  was  based?  &c. 

So  that  we  will  have  both  the  findings  of  fact  and  the  evidence  carried  up  to  the 
Court  of  Appeals. 

Mr.  William  A.  Anderson:  Do  I  understand  that  the  effect  of  the  amendment  offered 
by  the  gentleman  from  Norfolk  (Mr.  Thorn)  is  to  require  that  all  the  facts,  and  all  the 
evidence  also  shall  be  certified  to  tne  court? 

Mr.  Thom:  Its  effect  is  to  provide  for  the  certification  of  the  evidence  with  the 
findings  of  fact  on  that  evidence  made  by  the  commission. 

Mr.  William  A.  Anderson:  Under  the  procedure  now  obtaining  in  reference  to  an 
appeal  either  the  facts  proved,  as  certified  by  an  inferior  court,  or  the  evidence  is  certi- 
fied. If  the  evidence  is  certified,  as  a  rule  the  appellant  stands  in  the  position  of  a 
demurrent  to  the  evidence.  If  the  facts  proved  are  certified,  of  course  ail  question  as  to 
fact  is  removed,  but  if  the  lower  tribunal  fails  to  certify  all  of  the  facts,  he  may  intro- 
duce bystanders  for  the  purpose  of  showing  what  was  proved. 

Mr.  Thom:  I  understand  that  is  the  present  rule,  but  I  also  understand  the  Court  of 
Appeals  is  to  take  the  findings  of  fact  and  conclusions  of  this  commission  and  regard 
them  as  prima  facie  correct.  In  order  that  they  may  say  at  last  whether  they  are  cor- 
rect or  not,  you  are  obliged  to  have  the  evidence  there.  Suppose  you  have  only  the  facts. 
Then  it  is  practically  doing  away  with  the  efficacy  of  an  appeal,  and  I  think  there  ought 
to  be  before  the  court  not  only  the  findings  of  fact,  which  the  article  requires  the  Court 
of  Appeals  to  regard  as  prima  facie  correct,  but  the  evidence,  so  that  the  Court  of 
Appeals  can  say  whether  at  last  those  facts  are  correct. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Norfolk. 

Mr.  Thom:  At  the  request  of  the  chairman  of  the  committee,  I  withdraw  that 
amendment  for  the  present,  reserving  the  privilege  of  renewing  the  motion  at  a  later 
period. 

The  Chairman:  If  there  are  no  further  amendments  to  be  offered  to  sub-section  F. 
the  Secretary  will  read  the  next  sub-section. 

G.  Whenever  the  court,  upon  appeal,  shall  reverse  an  order  of  said  commission 
affecting  the  rates  of  charges,  or  the  classification  of  traffic,  of  any  transportation  or 
transmission  company,  it  shall,  at  the  same  time,  substitute  for  the  reversed  order,  the 
order  which  in  its  opinion  the  commission  should  have  entered  at  the  time  of  entering, 
and  in  lieu  of,  the  order  appealed  from,  otherwise  the  reversal  order  shall  not  be  valid. 
Such  substituted  order  shall  have  the  same  force  and  effect  (and  none  other)  as  if  it 
had  been  entered  by  the  com.mission  at  the  time  the  original  order  appealed  from  was 
entered.  The  right  of  the  commission  to  prescribe  and  enforce  rates,  charges,  classifica- 
tions, rules  and  regulations  affecting  any  and  all  actions  of  the-  commission  theretofore 
entered  by  it  and  appealed  from,  but  based  upon  circumstances  of  conditions  different 
from  those  existing  at  the  time  the  order  appealed  from  was  made,  shall  not  be  sus- 
pended or  impaired  by  reason  of  the  pendency  of  such  appeal;  but  no  order  of  said  com- 
mission prescribing  or  altering  such  rates,  classifications,  rules  or  regulation  shall  be 
retroactive. 


^480 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  Chairman:    Are  there  any  amendments  to  be  offered  to  sub-section  G? 

Mr.  Braxton:  In  sub-section  G,  in  line  197,  the  word  "of"  between  the  words  "rates" 
and  "charges,"  should  be  stricken  out;  and  in  line  214,  of  the  same  sub-section,  after  the 
word  "rates"  the  word  "charges"  should  be  inserted. 

The  Chairman:    Those  changes  will  be  made,  without  objection. 

Mr.  Hunton:  Mr.  Chairman,  I  move  that  the  following  words  be  stricken  out  of  sub- 
section G,  beginning  in' line  203: 

Such  substituted  order  shall  have  the  same  force  and  effect  (and  none  other)  as  if 
it  had  been  entered  by  the  commission  at  the  time  the  original  order  appealed  from  was 
entered. 

The  section  is  there  dealing  with  the  order  to  be  entered  by  the  Court  of  Appeals  in 
the  event  that  the  order  of  the  commission  is  reversed.  It  makes  the  order  of  the  Court 
of  Appeals  retroactive,  and  to  have  its  effect  as  of  the  same  day  the  order  appealed  from 
v/ould  have  had  effect.    That  is  certainly  dangerous,  it  seems  to  me. 

Mr.  Green:  Is  not  that  the  case  in  every  decree  of  the  Court  of  Appeals  affirming 
or  reversing  the  decision  of  the  court  below? 

Mr.  Hunton:  Mr.  Chairman,  I  want  to  say  that  this  clause  provides  that  the  new 
order  entered  by  the  Court  of  Appeals  shall  have  the  same  effect  as  if  it  had  been  origin- 
ally entered  by  the  commission.  In  other  words,  it  makes  the  order  of  the  Court  ofi 
Appeals  retroactive.  We  know,  too,  that  there  is  a  previous  provision  of  this  section 
which  provides  that  the  company  failing  to  obey  the  order  of  the  commission  may  be 
fined  $500  a  day,  and  that  each  day  of  such  failure  shall  constitute  a  separate  offence. 
Now,  if  you  make  this  order  of  the  court  retroactive,  and  make  it  take  its  effect  as  of  the 
date  of  the  order  appealed  from  had  its  effect,  certainly  there  is  danger  that  you  would 
expose  this  successful  appellant  from  the  order  of  the  commission  to  the  imposition  of 
these  additional  fines. 

Mr.  Brooke:    You  mean  the  unsuccessful  appellant,  do  you  not? 

Mr.  Hunton:  No,  the  successful  appellant.  Because,  if  the  railroad  company 
appeals  from  the  order  of  the  commission  and  wins  its  suit,  this  new  order  may  enter, 
although  the  decision  of  the  commission  was.  reversed,  and  take  its  effect  as  of  the  date 
of  the  order  appealed  from.  That  is,  the  new  order  of  the  court  dates  back  to  the  date 
of  the  order  of  the  commission,  and  it  might  be  that  this  company,  which  has  only 
availed  itself  of  the  right  of  appeal,  would  be  hauled  up  to  recover  against  it  a  fine  of 
$500  a  day  which  is  prescribed  for  any  violation  of  the  order  of  the  commission.  It 
seems  to  me  that  this  provision  is  distinctly  open  to  that  danger.    Let  me  illustrate. 

Suppose  the  commission  were  to  decide  some  matter  and  an  appeal  was  taken;  and 
suppose  the  court  should  say  by  virtue  of  this  provision  here,  that  it  was  not  a  proper 
decision,  but  that  thus  and  so  was  proper.  Then,  according  to  the  provisions  of  this 
article  there  would  certainly  be  danger  that  the  railroad  company,  because  it  had  not 
obeyed  the  terms  of  the  order  just  entered  by  the  Court  of  Appeals,  would  be  fined  for 
its  failure  to  obey  and  this  law  would  be  retroactive,  and  in  that  event  probably  uncon- 
stitutional, as  ex  poste  facto. 

In  addition  to  that  this  appeal  bond,  which  is  given  to  cover  the  costs  and  to  restore 
any  excessive  charges,  although  the  company  m.ay  have  appealed,  won  its  case  and  re- 
versed the  order  of  the  court  below,  this  provision  that  the  order  m-ust  have  the  same 
effect  as  if  entered  upon  the  very  day  the  order  appealed  from  was  entered  might  make 
them  refund  to  those  parties  litigant  in  pursuance  of  the  order  entered,  when  it  had 
appealed  from  the  prior  order  and  had  won  its  case  in  court.  If  this  committee  thinks 
that  is  right  and  proper,  of  course  they  will  retain  that  provision,  but  it  does  seem  to  me 
that  it  is  not  a  proper  provision  to  insure  reasonable  and  fair  dealing  with  an  appellant. 
Not  only  is  it  unprecedented,  but  it  is  absolutely  unnecessary  and  in  violation  of  their 
victory  which  they  won.  it  would  minimize  it  and  take  it  from  them.  I  would  say  to 
the  gentleman  from  Danville  that  if  his  suggestion  is  right,  why  put  this  sentence  in  here 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXVEXTIOX  OF  VIRGIXIA. 


2^81 


at  all?    It  is  absolutely  unnecessary  if  his  idea  of  the  construction  of  the  la^  is  correct. 

Mr.  Braxton:  I  am  unable  to  agree  with  the  suggestion  of  my  friend  from  Fauquier. 
li  seems  to  me  and  to  the  other  members  of  the  Committee  on  Corporations,  that  the 
provision  is  not  subject  to  the  vievv-s  the  gentleman  from  Fauquier  thinks  it  is,  and  we 
think  it  is  a  very  important  and  essential  provision  to  go  in  here.  I  can  illustrate  my 
views  perhaps  better  by  giving  you  a  supposed  than  an  actual  case. 

Before  proceeding  witn  that  I  will  call  attention  to.  the  fact  that  it  does  not  apply 
in  terms  to  any  sort  of  rule  or  regulation  or  action  of  the  commission  except  one  affect- 
ing the  rates  and  charges  of  a  road.  The  other  rules  and  regulations  for  which  they 
may  be  fined  and  probably  would  be  fined  for  failure  to  observe  them,  are  not  covered  by 
this  sub-section. 

We  will  take  a  case  of  this  sort:  A  railroad  company  is  charging  on  a  given  amount 
of  freight  over  a  given  distance,  50  cents.  It  may  be  that  the  reasonable  and  just  rate, 
and  the  rate  which  it  ought  to  charge,  is  20  cents.  The  commission  fixes  the  rate  of  20 
cents,  and  the  railroad  company  appeals  from  it.  Under  the  former  provisions  that  rail- 
road company  can  give  a  bond  and  suspend  the  operation  of  that  requirement  of  the 
commission  that  they  shall  charge  20  cents  until  their  appeal  is  determined;  and  in  the 
meantime  the  company  can  continue  to  charge  50  cents.  Now  it  is  possible  that  in  spife 
of  all  arrangements  we  have  made  for  a  speedy  trial,  it  may  be  that  three  months  or 
even  six  months  vrill  elapse  before  that  appeal  is  settled.  In  the  meantime  the  railroad 
company  goes  on  charging  50  cents  where  it  ought  to  charge  20  cents. 

Now.  if  when  the  Court  of  Appeals  afhims — in  case  it  should  affirm — the  decision  of 
the  commission,  and  says  that  its  decision  that  the  rate  shall  be  20  cents  is  a  proper 
decision  and  should  stand,  unless  that  decision  takes  effect  as  of  the  time  when  the 
commission  entered  its  order,  you  vvill  see  that  the  refunding  bond  is  of  no  service,  be- 
cause if  it  only  takes  effect  from  the  time  the  court  enters  its  order,  there  has  been  no 
overcharge. 

Mr.  Hunton:  Does  my  friend  mean  that  in  case  the  decision  of  the  commission  is 
affirmed,  tne  supersedeas  bond  would  be  of  no  effect  witnout  this  provision? 

Mr.  Braxton:  Let  me  see  if  1  can  state  the  proposition  again.  Unless  the  action  of 
the  court  affirming  the  20-cent  rate  shall  take  effect  from  the  time  that  rate  was  first 
ordered  by  the  commission,  and  in  case  it  should  take  effect  only  from  the  time  it  is 
affirmed  by  the  court,  there  would  have  been  no  overcharge  except  from  the  day  of  the 
affirmation  by  the  court. 

Mr,  Hunton:  Is  it  not  a  condition  of  the  appeal  bond  that  in  the  event  the  appellant 
fails  to  succeed  in  his  appeal  he  shall  repay  and  refund  all  excess? 

Mr.  Braxton:  Certainly. 

Mr.  Hunton:  Then  how  could  any  difficulty  arise  in  a  case  where  the  commission 
was  affirmed  in  its  judgment? 

Mr.  Braxton:  The  point  I  make  is  this:  That  unless  the  action  of  the  court  was 
retroative  and  did  make  the  20-cent  rate  take  effect  from  the  time  the  commission 
entered  it,  it  would  be  utterly  inconsistent  with  the  other  provision  Ihat  they  must  refund 
the  overcharge  pending  the  appeal. 

Mr.  Hunton:  Let  us  see  a  moment.  The  commission  decides  the  matter,  and  an 
appeal  is  taken  from  that  decision  by  the  carrier.  The  decision  is  suspended  through 
the  giving  way  by  the  company  of  a  supersedeas  bond,  one  of  the  conditions  of  which  is 
that  if  the  company  does  not  succeed  in  its  appeal  it  shall  refund  all  overcharges.  Does 
my  friend  mean  that  without  this  provision  to  which  I  have  referred  that  under  the  cir- 
cumstances I  have  described  that  bond  would  not  be  effectice? 

Mr.  Braxton:  I  will  answer  that,  but  I  prefer  not  to  answer  it  categorically,  be- 
cause I  cannot  state  my  position  correctly  without  explanation.  I  think  if  this  provision 
were  taken  out,  and  nothing  said  on  that  subject,  it  is  very  probable  that  the  effect  of  the 
other  provision  requiring  the  companies  to  refund  would  be  that  the  decision  of  the 
court  would  be  retroactive  in  that  respect. 


2482 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  point  Of  my  argument  was  to  show  you  that  inasmuch  as  it  probably  would 
be,  and  necessarily  would  be,  retroactive,  unless  we  destroy  the  effect  of  the  bond,  you 
are  not  hurt  by  our  saying  absolutely  that  it  must  be.    That  is  the  point. 

Mr.  Hunton:  What  I  wanted  to  say  is  this:  If  the  order  of  the  commission  is 
affirmed,  then  there  is  no  question  that  its  order  from  which  the  appeal  was  taken  takes 
effect  from  the  time  it  was  entered  by  the  commission,  and  that  the  supersedeas  bond 
carries  all  the  effects  provided  here.  But  suppose  that  instead  of  being  affirmed  the 
order  is  reversed-^now,  is  it  right  that  the  successful  appellant  who  has  won  his  suit 
should  have  imposed  upon  him  the  penalties  incident  to  an  order  which  has  just  been 
entered  as  if  it  had  been  entered  four  or  five  months  prior?  That  is  the  point  of  diffi- 
culty. 

Mr.  Braxton:  I  will  address  myself  to  that.  There  are  three  conditions  of  affairs 
that  can  occur.  One  is  in  the  supposed  case  that  the  court  might  affirm  the  order  of  the 
commission  out  and  out,  and  say  that  20  cents  is  proper,  and  I  think  my  friend  will  agree 
that  in  that  case  it  would  take  effect  as  of  the  time  the  order  was  entered.  The  second 
condition  of  affairs  which  might  exist  is  that  the  court  might  sustain  the  appellant  out 
and  out,  and  say  that  the  50-cent  rate  it  had  been  charging  all  along  was  the  correct  rate. 
Now,  notwithstanding  the  fact  that  the  commission  had  rendered  such  a  decision  let  us 
look  at  that  point.  The  court  in  that  supposed  case,  says  that  the  commission  is  abso- 
lutely wrong,  and  that  the  rate  of  50  cents  which  the  company  was  charging  was  a  proper 
rate.  Suppose  that  order  had  been  entered  by  the  commission  at  the  time  it  did  enter  it. 
How  cou^a  the  railroad  company  be  subjecting  itself  to  penalty  for  continuing  to  charge 
the  rate  which  the  commission  said  it  had  a  right  to  charge? 

Mark  you,  here  is.  a  railroad  charging  50  cents.  The  commission  says,  as  the  court 
decided  it  ought  lo  have  said,  that  50  cents  is  the  proper  rate,  and  it  continues  to  charge 
the  proper  rate.  How  could  it  make  itself  liable  to  any  penalty?  The  only  penalty  it 
could  be  liable  for  would  be  for  violating  a  requirement  of  the  commission,  which  the 
court  said  the  commission  had  no  right  to  enter,  and  that  would  carry  with  it  absolute 
immunity  from  liability,  because  its  liability  for  failure  to  perform  an  order  of  the  com- 
mission, you  will  observe,  is  a  liability  for  its  failure  to  perform  any  valid  requirement 
of  it;  and  if  the  court  said  by  its  decision  on  the  appeal  that  the  decision  of  the  com- 
mission fixing  the  rate  at  20  cents  was  not  valid,  and  that  the  commission  ought  to  have 
fixed  it  at  50  cents,  and  that  was  the  rate  the  road  had  been  charging,  the  road  would 
not  be  under  any  liability  for  penalty,  notv/ithstanding  the  fact  that  the  decision  of  the 
court  took  effect  as  of  the  time  the  commission  entered  it.  It  would  have  been  exactly 
in  the  status  as  if  the  commission  had  said,  "You  are  to  charge  50  cents,  and  you  may 
continue  to  charge  5u  cents." 

Mr.  Hunton:  The  question  I  desire  to  ask  is  this:  Take  the  illustration  of  the  gen- 
tleman from  Augusta  that  the  railroad  had  been  charging  a  rate  of  50  cents,  and  on  the 
first  of  January,  we  will  say,  the  commission  requires  it  to  reduce  that  price  to  20  cents; 
the  railroad  takes  an  appeal;  and  the  Court  of  Appeals  decides  that  neither  the  railroad 
nor  the  commission  was  right,  that  it  ought  to  have  been  a  30-cent  rate.  Would  not  the 
language  of  that  provision,  making  that  order  speak  as  of  the  first  day  of  January,  in- 
stead of  at  the  time  at  which  the  appeal  was  decided,  which  we  will  say  was  in  Novem- 
ber? Would  not  that  expose  that  company,  which  had  conducted  its  appeal  successfully, 
to  the  penalties  that  would  have  accrued  against  it  from  the  first  day  of  January,  while 
the  matter  was  pending  in  the  Court  of  Appeals? 

Mr.  Braxton:  That  was  the  third  case  I  desired  to  address  myself  to.  My  friend 
will  recall  that  I  stated  there  were  three  conditions  of  affairs  which  might  exist,  and  that 
I  wished  to  refer  to  them  separately.  First,  that  the  commission  might  be  sustained  out 
and  out,  which  we  agree,  would  work  no  hardship;  second,  the  railroad  might  be  sus- 
tained out  and  out,  and  in  that  case  there  would  be  no  hardship;  third,  suppose  that 
where  the  just  and  reasonable  rate  would  be  30  cents,  the  railroad  has  been  charging  50 
cents.    The  commission  says  it  must  charge  20  cents.    Yet  t"he  court,  when  it  entered 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOJsT  OF  VIRGIXIA. 


2483 


the  order,  reversed  the  commission  and  said  "Your  order  fixing  the  rate  at  20  cents  is 
wrong,  and  in  accordance  with  the  provisions  of  sub-section  G  we  will  not  proceed  to  say 
what  you  should  have  done.  You  should  have  fixed  the  rate  at  30  cents."  Now  why  do 
I  say  that  shall  take  effect  as  of  the  time  the  commission  should  have  entered  it?  Be- 
cause unless  we  do  so  the  railroad  would  not  have  to  pa>:  a  cent  on  this  refunding  bond, 
notwithstanding  the  fact  that  it  had  been  charging' 50  cents  all  that  time  when  it  should 
have  been  charging  30  cents.  The  only  penalty  which  as  a  matter  of  fact  the  road  would 
be  subjected  to,  would  be  that  when  it  came  to  make  its  refund,  it  would  refund  the 
difference  between  30  cents,  which  it  ought  to  have  charged,  and  50  cents,  rather  than 
the  difference  between  20  cents  and  50  cents.  Otherwise,  as  I  say,  if  the  commission 
were  reversed  by  the  shadow  of  a  fraction  of  a  cent,  it  would  let  the  railroad  off  from 
the  duty  of  refunding  anything,  although  it  may  have  been  charging  ten  times  as  much 
as  it  should  have  charged. 

Now,  if  I  catch  my  friend's  point  correctly,  it  is  this:  That  he  does  not  object  to 
having  the  railroad  refund  the  difference  between  30  cents  and  50  cents,  but  that  he  fears 
in  addition  to  that  the  railroad  might  be  charged  a  penalty  for  its  failure  to  obey  what 
would  have  been  the  order  of  the  commission  if  it  had  entered  as  at  the  time.  Do  I 
catch  your  meaning  correctly? 

Mr.  Hunton:  Not  absolutely  correctly.  That  is  my  main  objection  to  it.  You  do 
not  understand  me  correctly  when  you  say  I  have  no  objection  to  the  other;  because  I 
think  when  a  party  lakes  an  appeal  from  an  order  of  the  commission  and  is  successful 
in  the  Court  of  Appeals,  he  ought  to  get  the  full  effect  of  the  appeal,  but  I  do  maintain  in 
addition  to  that,  that  the  effect  of  the  provisions  of  this  article,  expose  that  carrier  to  a 
fine  of  $500  a  day  from  the  time  the  commission's  order  was  entered  until  the  order  of 
the  Court  of  Appeals  was  rendered. 

Mr.  Braxton:  Here  is  a  road,  we  will  say,  which  is  charging — to  state  an  extreme 
case — $1.00  where  it  ought  to  charge  20  centSi.  The  commission  puts  the  charge  at  19 
cents,  and  inasmuch  as  the  commission  has  failed  by  one  cent  to  put  the  charge  at  the 
proper  amount  in  the  opinion  of  the  court,  that  railroad,  which  has  been  charging  $1.00 
where  it  ought  to  have  been  charging  20  cents.,  because  the  court  says  the  commission 
should  have  made  it  20  cents  instead  of  19  cents,  couid  be  excused  from  refunding  that 
other  80  cents.  The  opinion  of  the  Committee  on  Corporations  is  that  the  railroad  in  any 
case  should  be  required  to  refund  the  difference  between  what  it  is  charging  and  what 
the  court  say  is  a  fair  and  just  charge  from  the  time  the  commission  entered  the  order. 
Furthermore,  in  regard  to  the  fine  and  penalty  that  can  be  put  upon  it. 

We  thought  it  was  fair  to  assume  that  the  commission  would  never  put  any  fine  or 
penalty  upon  them  further  than  the  refunding  of  their  claim,  and  that  if  it  did  so,  it 
should  be  a  matter  of  appeal  to  the  court  to  say  whether  it  was  just  and  reasonable 
that,  in  addition  to  refunding  the  overcharge,  they  should  be  fined  so  much  per  diem. 
We  relied  upon  what  the  court  said  in  the  case  I  read  from  the  other  day,  when  it  as- 
sumed that  because  you  arm  a  commission  with  powder,  it  is  going  to  abuse  it.  The 
court  said,  "  It  is  enough  to  say  in  respect  to  these  matters,  at  least  so  far  as  this  case 
is  concerned,  that  it  is  not  to  be  supposed  that  the  Legislature  of  any  State  or  any  com- 
mission appointed  under  the  authority  of  the  State  will  ever  engage  in  a  deliberate 
attempt  to  cripple  or  destroy  institutions  of  great  value,  as  railroads."  And  if  they 
do  it  from  any  such  fine  they  can  impose  upon  them,  they  can  again  go  to  the  Court  of 
Appeals  to  inquire  into  the  justice  and  reasonableness  of  it.  So  I  think  my  friend's  fear 
is  a  danger  that  will  never  exist  as  a  matter  of  fact,  and  unless  you  do  say  this  shall 
have  the  same  force,  and  none  other,  as  if  it  had  been  entered  by  the  commission,  you 
leave  the  door  open  to  another  great  danger.  You  make  it  a  hard  and  fast  rule,  if  it 
is  one  affirmed  by  the  court,  so  that  the  commission  can  never  change  it  again,  although 
the  circumstances  under  v-hich  the  court  entered  it  may  have  changed. 

In  the  supposed  case  the  court  may  say  that,  according  to  the  case  as  made  out 
before  them,  30  cents  is  a  reasonable  rate.    Unless  that  is  given  the  effect  and  none 


DEBATES  OF  THE  COJs^STITUTIOA^AL  CONVENTIOIvr  OF  VIRGINIA. 


other  that  a  decision  of  the  commission  would  have,  although  the  circumstances  and 
conditions  might  afterwards  change,  so  that  a  reasonable  rate  would  be  15  cents,  still 
there  would  be  no  possible  way  under  this  law  of  ever  changing  it.  But  we  provide 
that  having  the  same  force  and  effect  that  it  has  if  the  commission  had  entered  it, 
the  commission  may  change  it  like  it  can  change  any  other  rate,  if  the  conditions  under 
which  it  is  entered  should  afterwards  change.  It  is  also  essential  to  do  so  in  order  to 
make  the  railroads  refund  the  difference  between  what  it  is  actually  charging  and  what 
the  Court  of  Appeals  said  it  ought  to  charge,  whether  that  is  exactly  what  the  com- 
mission said  or  not.  If  it  affirms  the  commission  in  full,  the  railroad  shall  return  the 
difference  between  what  it  charges  and  what  the  commission  says,  but  if  it  reverses 
the  commission  and  fixes  another  rate,  it  shall  refund  the  difference  between  what  it  is 
charging  and  the  rate  which  the  court  on  its  own  motion  says  is  fair  and  just. 

Otherwise  you  would  have  a  railroad  saying  "  We  have  charged  you  fifty  cents.  The 
court,  on  its  own  motion,  says  we  ought  not  to  have  charged  but  30  cents;  so  we  will 
not  refund  a  single,  solitary  cent  to  you,  and  the  refunding  is  an  absolute  nullity  if  we 
can  get  the  court  to  change  the  order  of  the  commission  by  the  shade  of  a  shadow  of 
an  inch."  So  if  you  are  going  to  have  the  court  change  the  order  of  the  commission 
the  only  effect  will  be  merely  to  change  the  amount  that  the  railroad  is  to  refund. 

I  trust  the  committee  will  sustain  the  report  in  that  respect,  as  we  regard  it  as 
a  very  important  and  essential  one,  and  think  that  the  danger  referred  to  by  my  friend 
is  purely  imaginary. 

Mr.  Barbour:  Before  the  gentleman  from  Fauquier  replies  to  the  gentleman  from 
Augusta,  I  want  to  call  his  attention  to  the  further  fact  that  a  railroad  company  would 
under  this  provision  be  liable  to  no  uenalty  at  all  until  after  service  of  a  valid  order 
from  the  commission,  and  the  first  order  of  the  commission  having  been  declared  in- 
valid there  cannot  be  this  penalty  imposed  until  ten  days  after  a  valid  order  has  been 
served,  which  would  be  the  substituted  rate  by  the  court. 

Mr.  Hunton:  Mr.  Chairman,  as  I  understand  the  gentleman  from  Augusta,  he  seems 
to  admit  that  this  fine  may  be  imposed,  but  whether  it  will  be  imposed  or  not  is  another 
matter,  and  he  doubts  whether  it  ever  would  be,  and  if  imposed,-  that  it  might  be  cor- 
rected on  appeal.  Well,  now,  we  remember  that  his  preceding  section  makes  it  a  con- 
stitutional offense,  and  makes  the  fine  a  constitutional  fine;  and  the  question  is  whether 
upon  appeal  you  could  correct  that  matter  in  the  Court  of  Appeals.,  and  if  his  article 
is  subject  to  this  criticism,  whether  you  would  not  expose  this  appellant,  without  power 
of  correction  by  appeal,  because  this  very  article  provides  for  it,  to  the  imposition  of 
this  fine  day  by  day  from  the  time  the  original  order  was  entered  until  the  appeal  was 
decided  in  the  appellate  court. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Fauquier  (Mr.  Hunton). 

The  amendment  was  rejected. 

The  Chairman:  If  there  are  no  further  amendments  to  be  offered  to  sub-section 
G,  the  Secretary  will  read  sub-section  H. 

H.  The  right  of  any  person  to  institute  and  prosecute  in  the  ordinary  courts  of 
justice,  any  action,  suit  or  motion  against  any  transportation  or  transmission  company, 
for  any  claim  or  cause  of  action  against  such  company,  shall  not  be  extinguished  or 
impaired,  by  reason  of  any  fine  or  other  penalty  which  the  said  commission  may  inflict, 
.  or  be  authorized  to  inflict  upon  such  company  because  of  its  breach  of  any  public  duty, 
or  its  failure  to  comply  with  any  order  or  requirement  of  said  commission;  but,  m  no 
such  proceeding  by  any  person  against  such  corporation,  shall  the  reasonableness,  just- 
ness or  validity  of  any  charge,  classification  of  traffic,  rule,  regulation  or  requirement 
theretofore  prescribed  by  said  commission,  within  the  scope  of  its  authority,  be  ques- 
tioned. 

Mr.  Robertson:  Will  the  gentleman  allow  me  to  occupy  the  floor  a  moment?  If 
the  committee  will  allow  me  to  do  so.  I  will  be  very  much  obliged  to  them.  I  will 
move  to  strike  out  the  sub-section.   I  will  just  state,  if  the  gentlemen  from  Pulaski  will 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  TIEGIXIA. 


2485 


not  insist  on  his  point  of  order,  that  the  effect  of  the  amendment  I  wish  to  offer  is  this. 
I  do  not  think  a  private  citizen  ought  to  sue,  for  instance,  in  a  magistrate's  court,  and 
collect  a  penalty  from  one  of  these  carriers  on  account  of  the  commission  fixing  rates, 
when  that  matter  is  pending  in  the  Court  of  Appeals.  He  may  proceed  to  judgment 
and  execution  and  collect  money,  and  the  Court  of  Appeals  may  afterwards  reverse  what 
the  commission  has  done,  and  the  railroad  company  would  have  no  redress  against  the 
individual  who  got  it.  ^ly  idea  was  to  require  him  to  give  a  bond  with  sufficient  se- 
curity to  refund  the  money  that  he  collects,  in  case  the  commission  should  he  reversed 
when  there  is  an  appeal  pending. 

IMr.  Braxton:    Would  not  a  motion  for  a  new  trial  there  cover  the  case? 

Mr.  Robertson:  No,  sir.  Suppose  it  is  in  the  circuit  court,  and  the  circuit  court' 
gives  a  judgment. 

Mr.  Braxton:  Would  not  that  same  thing  exist  in  any  case  where  the  Court  of 
Appeals  might  change  a  law  and  reverse  a  decision? 

Mr.  Robertson:  No,  sir;  it  does  not  exist  anywhere  else  on  the  face  of  God's  earth, 
because  this  is  the  only  place  I  ever  knew  where  a  court  was  also  a  legislative  body. 
It.  cannot  exist  in  a  court.  Here  is  a  body  that  fixes  rates  that  bind  everybody  in  the 
Commonwealth.  It  is  a  legislative  act,  as  these  gentlemen  say.  The  commission  also 
acts  as  a  court.  An  appeal  is  allowed  from  their  action,  though  they  are  acting  as  a 
Legislature.  Now,  I  say  you  cannot  find  a  parallel  case  in  the  courts.  Here  a  private 
individual  can  take  advantage  of  the  rate  having  been  fixed  by  this  commission  as  a 
legislative  act.  He  can  sue  the  railroad  company  for  not  complying  with  it.  He  can 
get  his  money  and  put  it  in  his  pocket  while  the  appeal  is  pending  between  the  Com- 
monwealth of  Virginia  and  the  railroad  company,  because  the  Commonwealth  is  made 
a  party. 

Mr.  Braxton:  May  I  ask  my  friend  if  that  thing  cotild  not  be  done  exactly  if  that 
rate  had  been  fixed  by  the  Legislature?    Could  not  the  man  do  exactly  the  same  thing? 

Mr.  Robertson:  Yes,  sir;  but  I  say  it  is  unfair  to  allow  a  private  citizen  to  get  the 
benefit  of  a  temporary  order  which  would  be  in  force  so  long  as  the  appeal  was  pend- 
ing, but  as  soon  as  the  Court  of  Appeals  acted  on  it  it  would  not  be  in  force. 

Mr.  Meredith:  Do  you  believe  it  possible  for  a  suit  to  be  based  upon  a  decree  of  this-, 
commission  which  has  been  appealed  from? 

Mr.  Robertson:    Not  entirely,  perhaps. 

Mr.  Meredith:  How  could  it?  If  it  is  appealed  from,  it  will  stay  all  proceedings. 
It  does  not  make  any  difference  whether  it  is  suspended  between  the  Commonwealth 
and  any  particular  railroad,  as  between  any  liability  arising  from  it. 

Mr.  Robertson:    I  do  not  see  any  use  of  having  a  provision  here  at  all. 

Mr.  Meredith:  It  says  that  the  fact  that  a  penalty  has  been  imposed  shall  not  de- 
stroy a  common  law  right. 

Mr.  Hunton:  Does  not  sub-section  h  apply  to  any  order  of  the  commission,  al- 
though an  appeal  is  pending  from  that?  Is  not  the  language  so  broad  as  to  make  it 
apply  to  any  order  of  the  commission,  although  an  appeal  is  pending  from  it? 

Mr  Meredith:  But  it  says  nothing  except  that  the  fact  that  an  appeal  has  been 
imposed  shall  not  destroy  a  common  law  right. 

So  far  as  I  can  construe  this  section,  it  means  nothing  more  than  that  the  mere 
imposition  of  a  fine  or  penalty  shall  not  destroy  a  common  law  right;  but  when  you 
are  suing  on  that  common  law  right,  you  shall  not  attack  the  judgment  of  this  com- 
mission collaterally.  Now.  if  there  is  an  appeal  taken  upon  which  you  have  undertaken 
to  institute  your  right  of  action,  the  pleading  of  the  pendency  of  the  appeal  stops  the 
enforcement  of  the  judgment.  You  have  no  right  to  sue,  because  the  judgment  has 
not  become  a  finality  upon  which  you  base  your  cause  of  action. 

Mr.  Thorn:  I  should  like  to  know  if  he  and  the  friends  with  whom  he  is  co-operat- 
ing will  accept  such  addition  to  that  language  as  will  exclude  cases  pending  on  appeal? 
Would  you  say  that  cases  pending  on  appeal  are  not  included  within  the  last  clausa 
of  that  provision? 


2486 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Meredith:  I  would  not  say  it,  for  this  simple  reason,  that  it  does  seem  to 
me  it  is  useless  to  incumber  a  very  lengthy  paper— we  all  admit  it  is  lengthy— with 
expressions  that  are  utterly  useless  it  seems  to  me. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  Mr.  Ayers  took  the  chair  as 
presiding  ofRcer. 

On  motion  of  Mr.  Thom  the  Convention  adjourned  until  Monday,  February  17,  1902, 
at  12  o'clock  M. 


MONDAY,  February  17,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 

The  committee  appointed  to  secure  a  hall  for  the  use  of  the  Convention  during  the 
session  of  the  Legislature  recommended  renting  the  Mechanics'  Institute. 
The  recommendation  was  agreed  to. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  a  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Ayers  in  the  chair. 

The  chairman:  The  motion  before  the  Committee  is  the  motion  to  strike  out  sub- 
section H.    The  gentleman  from  Fauquier  has  the  floor. 

Mr.  Hunton:  Mr.  Chairman,  it  was  contended  by  the  gentleman  from  Richmond 
(Mr.  Meredith)  just  before  the  Committee  rose  on  Saturday  last,  that  in  the  event 
a  suit  was  brought  by  a  shipper  to  recover  a  rate  that  was  larger  than  that  fixed  by 
the  commission,  in  the  event  there  was  an  appeal  pending  from  that  order,  if  it  had  not 
been  suspended,  he  could  not  recover  judgment  under  the  language  of  sub-section  H. 

It  seems  to  me  it  is  only  necessary  to  read  the  language  of  the  sub-section  itself 
to  answer  the  proposition  of  the  gentleman  from  Richmond.  The  latter  part  of  it  be- 
ginning in  line  224,  is  in  the  following  language: 

But,  in  no  such  proceeding  by  any  person  against  such  corporation,  shall  the  reason- 
ableness, justness  or  validity  of  any  charge,  classification  of  traffic,  rule,  regulation  or 
requirement  theretofore  prescribed  by  said  commission,  within  the  scope  of  its  authority, 
be  questioned. 

It  says  very  clearly  that  no  regulation  or  classification  or  fixing  of  rate  thereto- 
fore prescribed  by  said  commission.  There  is  nothing  to  limit  that  to  a  rate  of  classi- 
fication that  has  been  prescribed  by  the  commission,  which  is  not  then  pending  in  the 
Court  of  Appeals.  It  is  probably  true  that  when  a  suspending  bond  has  been  given, 
the  position  of  the  gentleman  from  Richmond  would  be  correct;  but  when  no  suspending 
bond  is  given,  while  his  would  be  the  general  proposition,  this  language  would  clearly 
control  and  give  the  right  of  action  in  every  such  case.   It  says: 

Therefore  prescribed  by  said  commission. 

That  is  the  language  of  it.  Now,  if  there  is  no  suspending  order  it  seems  to  me 
that  it  would  clearly  permit  a  recovery  of  any  such  amount  in  a  justice's  court,  which 
I  believe  is  admitted  by  the  advocates  of  this  measure  not  to  be  right  or  proper;  and 
they  claim  that  it  is  so  clear  that  it  is  unnecessary  to  make  any  such  amendment.  If 
this  body  chooses  to  leave  the  language  in  that  shape  when  certainly  it  is  subject  to 
that  construction,  and  when  in  my  opinion  that  is  the  only  construction  that  can  be 
placed  upon  it,  it  is  for  them  to  decide;  but  it  seems  to  me  that  when  the  language 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2^87 


says  any  regulation  heretofore  prescribed  by  said  commission,  that  is  broad  enough 
to  cover  it,  whether  there  is  an  appeal  pending  or  not,  in  the  event  there  is  no  sus- 
pending bond. 

Mr,  Braxton:  Mr.  Chairman,  out  of  an  abundance  of  caution,  I  suggest  that  after 
the  word  "authority,"  in  line  229,  the  words  "and  not  therefore  reversed  on  appeal, 
or  rescinded  "  be  inserted. 

I  feel  reasonably  certain  that  it  is  the  effect  of  the  language  as  it  now  is,  but  il 
will  certainly  put  it  beyond  all  peradventure.  I  move  to  insert  in  line  229,  after  the 
word  "  authority,''  the  words  "  and  not  therefore  reversed  on  appeal  or  rescinded,"  so 
that  it  would  read  in  this  way: 

But,  in  no  such  proceeding  by  any  person  against  such  corporation,  shall  the 
reasonableness,  justness  or  validity  of  any  charge,  classification  of  traffic,  rule,  regula- 
tion or  requirement  theretofore  prescribed  by  said  commission,  within  the  scope  of  its 
authority,  and  not  theretofore  reeversed  on  appeal  or  rescinded,  be  questioned. 

Mr.  Hunton:  May  I  ask  the  gentleman  from  Augusta  whether  that  language  is 
broad  enough  to  exclude  it? 

Mr,  Braxton:    No,  sir;  it  is  intentionally  not  broad  enough. 

Mr.  Chairman,  I  suppose  it  would  be  better  for  me  to  state  what  I  wish  to  state 
now.  If  I  understand  my  friends  on  the  opposite  view  of  this  case,  their  position  is 
that  if  the  order  or  regulation  of  the  commission  which  is  involved  collaterally  in  any 
private  litigation  has  been  appealed  from  and  the  appeal  is  still  pending,  that  decision 
of  the  commission  should  not  be  regarded  as  final  in  the  court  in  which  the 
private  litigation  exists,  I  must  earnestly  object  to  that.  The  effect  of  that  would  be 
that  if  the  appeal  were  taken,  pending  the  appeal  the  same  matter  could  be  reopened 
and  investigated  by  every  subordinate  court  in  the  land  in  which  that  matter  could  be 
collaterally  considered.  It  has  been  the  purpose,  and  it  runs  through  the  whole  report, 
that  there  is  but  one  way  to  review  the  action  of  this  commission,  and  that  is  on  appeal, 
and  it  seems  to  us  that  such  a  review  should  not  be  made  by  any  other  court  than  the 
Court  of  Appeals,  and  that  on  appeal;  but  if  what  my  friend  suggests  were  done,  when 
a  commission,  upon  considering  a  case  in  which  a  railroad  is  charging  a  50  cent  rate, 
had  reduced  that  rate  to  20  cents,  the  railroad  could  take  an  appeal,  refuse  to  give  any 
suspending  bond,  and  yet  in  any  litigation  that  would  arise  between  it  and  any  indl* 
vidual,  any  subordinate  court,  pending  that  appeal,  could  go  into  the  consideration  of 
the  very  thing  that  was  before  the  Court  of  Appeals,  that  is,  as  to  w^hether  the  decision 
of  the  commission  was  right  or  not. 

The  effect  of  the  amendment  which  I  present  here  is  that  the  decision  of  the  com- 
mission on  the  rate  or  the  rule  or  the  regulation  is  absolutely  binding  upon  every  sub- 
ordinate court  in  this  land,  unless  it  has  been  rescinded  by  the  commission  itself,  or 
the  Legislature,  or  unless  it  has  been  reversed  by  the  Court  of  Appeals. 

It  seems  to  me,  Mr.  Chairman,  that  the  difficulty  spoken  of  here  is  the  same  difficulty 
that  exists  in  every  case  where  a  question  goes  to  the  Court  of  Appeals.  If  a  statute 
is  passed  by  the  Legislature,  is  it  possible  that  no  man  can  avail  himself  of  that  statute 
because  some  other  man  has  a  case  involving  the  constitutionality  of  it  pending  in  the 
Court  of  Appeals?  Is  it  not  the  rule  that  until  the  Court  of  Appeals  declares  it  uncon- 
stitutional, the  statute  remains  in  force  absolutely? 

Now,  when  a  question  which  is  pending  before  the  Court  of  Appeals  is  involved 
In  some  other  litigation  in  a  subordinate  court,  it  is  left  to  the  sound  discretion  of  the 
court,  whether  upon  the  representation  of  such  a  condition  of  things,  it  will  suspend 
its  action  until  the  Court  of  Appeals  has  spoken  on  it,  and  that  can  be  done  here;  but 
to  say  that  that  court  can  of  its  own  motion  go  to  work  and  inquire  into  the  justness 
and  reasonableness  of  a  rule  made  by  the  commission,  which  the  Supreme  Court  alone 
has  the  right  to  inquire  into,  I  say  would  upset  the  entire  position  and  the  entire  theory 
upon  which  we  are  acting. 


2488 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


A  few  years  ago  a  question  of  this  nature  was  involved  in  a  case  in  the  Court  of 
Appeals,  as  to  whether  the  right  of  subrogation  existed  between  partners.  It  was  de- 
cided in  a  certain  way,  and  after  that  decision  was  rendered  a  rehearing  was  granted, 
and  the  case  was  in  the  breasts  of  the  Supreme  Court  for  from  six  to  twelve  months 
before  it  was  finally  decided.  Could  it  be  possible  that  pending  that  condition  of  things 
every  subordinate  court  in  the  land  would  have  the  right  of  reviewing  the  decision  of  the 
Court  of  Appeals,  and  passing  on  that  question  which  the  Court  of  Appeals  alone  could 
pass  on? 

The  practice,  as  I  understand  it,  as  a  matter  of  fact,  was,  that  in  every  case  brought 
to  the  attention  of  a  court  in  which  that  matter  was  involved,  when  that  question  was 
then  pending  before  the  Supreme  Court,  the  court  in  its  sound  discretion  granted  a  con- 
tinuance until  the  matter  was  settled  by  the  Supreme  Court. 

Now,  in  the  case  as  we  propose  it  here,  if  in  a  litigation  between  any  individual 
or  corporation  and  the  railroad  company,  the  question  of  the  validity,  justness  and 
reasonableness  of  a  rate  which  had  been  fixed  by  the  commission,  should  come  into 
question,  and  it  should  be  shown  that  the  commission,  in  the  case  supposed  had  fixed 
a  20  cent  rate  upon  the  representation  by  the  railroad  that  the  justness  and  validity 
of  that  action  was.  then  pending  before  the  Supreme  Court  on  appeal,  it  would  be  en- 
tirely competent  for  the  lower  court  to  grant  a  continuance  on  that  ground  until  the 
Supreme  Court  of  Appeals  had  acted  on  it;  and  should  the  court  refuse  to  do  it  and 
should  it  hold  that  the  justness  and  reasonableness  of  it  was  a  settled  matter,  and  fore© 
the  parties  into  trial,  they  could  appeal  from  it  again  and  carry  it  to  the  Court  of 
Appeals  which  would  be  governed  by  its  own  decision  in  the  matter. 

The  whole  purport  and  effect  of  this  is  to  prevent  a  practical  review  of  the  action 
of  this  commission  by  the  subordinate  courts  of  this  land.  If  such  a  thing  be  made 
possible,  you  have  taken  out  that  brick  which  will  cause  the  whole  edifice  here  to  fall, 
if  the  action  of  this  commission  can  be  interrupted,  reviewed  and  reversed  by  every 
subordinate  tribunal  in  this  land,  from  the  justice  of  the  peace  up. 

Therefore,  we  provide  that  when  the  decision  has  been  reached  by  the  commission, 
It  shall  be  regarded  as  a  valid  decision,  that  its  justness  and  its  reasonableness  shall 
not  be  questioned  by  any  court  of  this  land,  except  upon  an  appeal  to  the  Supreme  Court, 
unless  it  can  be  shown  that  it  has  already  been  reversed  by  the  Supreme  Court  or  been 
rescinded  by  the  commission  or  the  Legislature,  as  the  case  may  be. 

Mr.  Thom:  Reverting  to  the  position  of  the  gentleman  that  if  an  appeal  was  taken 
from  the  lower  court  to  the  Court  of  Appeals  in  this  case  by  the  individual,  then  the 
Court  of  Appeals  could  determine  the  question  in  a  way  that  would  question  the  reason- 
ableness., justness  or  validity  of  the  charge  established  by  the  commission,  do  you 
think  that  position  is  sound  in  law? 

Mr.  Braxton:  My  position,  if  the  gentleman  will  permit  me,  v/as  this,  that  when 
the  parties  in  a  private  litigation  should  rely  upon  a  rate  or  a  regulation  that  had  been 
established  by  this  commission  as  a  legal  and  valid  one,  and  the  railroad  company  should 
make  the  suggestion  that  that  m.atter  was  pending  in  the  Court  of  Appeals,  as  to  its 
reasonableness  and  justness.,  and  would  ask  for  a  continuance  on  that  ground,  and  the 
court  would  refuse  the  continua^nce,  that  would  in  my  judgment  be  a  valid  ground  for 
reversing  the  decision  of  the  court  below.  If  the  court  should  hold  that  that  was  the 
m.atter  which  controlled  the  litigation  and  that  substantial  justice  had  not  been  done, 
and  I  think  that  when  that  case  went  up  on  a  writ  of  error,  objecting  to  the  decision 
of  the  court  refusing  to  give  the  continuance,  the  Court  of  Appeals  having  in  the  mean- 
time reversed  the  decision  of  the  commission,  there  would  be  no  question  about  it  also 
reversing  the  decision  of  the  lower  court  refusing  to  give  the  continuance.  But  if,  on 
the  other  hand,  the  court  had  in  the  meantime  affirmed  the  decision  of  the  commission, 
they  would  refuse  to  grant  an  appeal  on  the  ground  that  it  was  damnum  absque  injuria. 

I  read  from  the  concurring  opinion  of  Justice  Miller  in  the  case  of  Chicago  Rail- 
road Company  vs.  Minnesota,  134  U.  S.,  460.    In  laying  down  some  principles  that 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2489 

control  such  a  case  as  this,  and  the  fact  that  the  decision  of  the  commission  must  be 
subject  to  appeal,  the  judge  says: 

But  until  the  judiciary  has  been  appealed  to  to  declare  the  regulations  made,  whether 
by  the  Legislature  or  the  commission,  voidable  for  the  reasons  mentioned,  the  tariff  of 
rates  so  fixed  is  the  law  of  the  land,  and  must  be  submitted  to  both  by  the  carrier  and 
the  parties  with  whom  he  deals. 

That  the  proper,  if  not  the  only,  mode  of  judicial  relief  against  the  tariff  of  rates 
established  by  the  Legislature  or  by  its  commissioner,  is  by  a  bill  in  chancery,  asserting 
its  unreasonable  character,  and  its  conflict  with  the  Constitution  of  the  United  States, 
and  asking  a  decree  of  the  court,  forbidding  the  corporation  from  exacting  such  fare  as 
excessive,  or  establishing  its  right  to  collect  the  rates  as  being  within  the  limits  for  a 
just  compensation  for  the  service  rendered. 

That  until  this  is  done — 

That  is,  until  the  action  of  the  commission  has  been  corrected  in  the  way  provided 
by  law — 

It  is  not  competent  for  each  individual  having  dealings  with  the  carrying  corporation, 
or  for  the  corporation  with  regard  to  each  individual  who  demands  its  services,  to  raise 
a  contest  in  the  courts  over  the  questions  which  ought  to  be  settled  in  the  general  and 
conclusive  method. 

As  my  friend  from  Richmond  (Mr.  Meredith)  said  the  other  day,  the  whole  question 
is  whether  the  action  of  this  commission  can  be  attacked  collaterally  or  whether  it 
must  be  attacked  only  in  the  direct  method  provided  for  by  law;  and  aside  from  the 
reasoning  of  the  case,  I  think  the  authority  I  have  just  read  here  will  be  conclusive. 

Mr.  Thorn:  I  cannot  conceive  that  the  authority  just  read  has  any  bearing  on  the 
question  we  are  now  discussing,  nor  can  I  conceive  that  the  amendment  proposed  by 
the  gentleman  from  Augusta  (Mr.  Braxton)  in  any  way  touches  the  difficulty  we  are  now 
trying  to  obviate.  If  at  the  time  the  private  case  in  the  lower  court  is  being  tried,  the 
decision  of  the  commission  has  been  reversed  of  course  it  would  have  no  binding  effect 
upon  the  proceeding  in  the  lower  court,  but  suppose  either  of  two  cases:  Suppose  ther© 
is  an  appeal  pending,  or  suppose  an  injunction  has  been  awarded  by  some  court  against 
the  action  of  the  commission,  questioning  its  jurisdiction  and  questioning  its  validity. 

Now,  notwithstanding  that,  an  appeal  may  be  taken  which  might  result  in  an  en- 
tire reversal  of  the  commission,  and  notwithstanding  the  pendency  of  an  injunction  pro- 
ceeding, the  effect  of  which  might  be  to  wipe  out  the  finding  of  the  commission  as 
contrary  to  this  authority,  or  for  some  other  reason,  still  an  individual  would  have  a 
right  to  go  into  a  court  of  this  Commonwealth,  sue  the  carrier  and  have  his  case  tried 
upon  the  assumption  that  this  action  of  the  commission,  which  thereafter  turns  out  to 
be  absolutely  invalid,  and  is  subsequently  reversed  or  annulled,  must,  for  the  law  of  this 
individual  case,  be  held  to  be  absolutely  unquestionable. 

Is  that  right?  It  will  not  do  for  m.y  friend  to  point  out  an  objection  on  the  other 
side  which  any  proposed  language  will  result  in.  We  must  try  to  find  out  what  the 
difficulty  is,  and  to  find  language  to  remedy  it.  As  I  understand  it,  his  difficulty  is  that 
the  mere  pendency  of  an  appeal  will  absolutely  enable  any  court,  no  matter  how  low, 
to  question  the  reasonableness,  justness  or  validity  of  the  charge.  I  can  conceive  there 
is  some  justice  in  that  criticism,  but  that  is  not  the  only  language  that  will  meet  it.  My 
friend  says  that  it  would  be  error  in  the  lower  court  not  to  continue  a  case  under  these 
circumstances.  I  do  not  agree  with  him  as  to  its  error.  I  agree  with  him  it  would  be 
unjust,  but  under  the  language  of  his  article,  as  written,  I  believe  the  legal  right  would 
exist  there  almost  by  the  mandate  of  the  Constitution  to  go  on  and  determine  the  case 
without  waiting  for  action  on  appeal  or  the  action  of  the  court  in  the  injunction  pro- 
ceeding. 

A  gentleman  here  has  called  my  attention  to  the  fact  that  the  language  is  that  the 
rights  of  the  individual  shall  neither  be  extinguished  nor  impaired.    A  continuance  might 
be  considered  an  impairment  of  the  promptness  of  his  remedy. 
157 — Const.  Deb. 


2490 


DEBATES  OF  THE  CONSTITUTIOISTAL  CONVEJ^TIOiq"  OF  VIRGI^flA. 


Mr.  Carter:    Would  not  a  large  number  of  those  eases  come  before  the  magistrates? 

Mr.  Thom:  I  think  they  would,  and  I  do  not  think  you  will  ever  have  any  contin- 
uances before  magistrates. 

Mr.  Meredith:  Do  you  think  the  magistrate  ought  to  set  aside  the  decision  of  the 
commission? 

Mr.  Thorn:  No;  I  do  not  ask  that.  I  will  ask  if  gentlemen  will  meet  us  on  this: 
To  add  at  the  end  of  that  clause  these  words:  "But  in  no  such  case  shall  the  case  be 
heard  against  the  objection  of  either  party  while  there  is  an  appeal  or  other  legal  pro- 
ceedings to  question  the  action  of  the  commission  pending  and  undetermined." 

Mr.  Braxton:  If  there  is  no  further  debate,  I  should  be  glad  to  have  the  amendment 
put  as  I  offered  it,  that  is,  in  line  229,  after  the  word  "authority,"  insert  the  words  "and 
not  theretofore  reversed  on  appeal,  or  rescinded." 

I  cannot  help  but  think,  and  such  of  my  associates  as  I  have  been  able  to  confer  with 
agree  with  me,  that  would  afford  all  the  protection  that  could  possibly  be  asked  for. 

Mr.  Thom:  Mr.  Chairman,  I  want  to  say,  so  far  as  that  goes,  that  I  have  no  objec- 
tion to  that.    I  am  going  to  make  my  amendment  subsequently. 

The  Chairman:    The  Secretary  will  read  the  amendment. 

At  the  end  of  line  229,  on  page  15,  add  these  words: 

And  not  theretofore  reversed  on  appeal  or  rescinded, 

Mr.  Wysor:  Mr.  Chairman,  I  object  to  the  am.endment  offered  by  the  chairman  of 
the  committee  (Mr.  Braxton).  The  committee  will  observe  that  that  language  does  not 
mean  anything  at  all.  It  says  a  decision  not  theretofore  reversed  and  rescinded  shall 
not  be  binding.  Of  course,  if  it  is  reversed  and  rescinded,  it  is  wiped  out,  and  there  is  no 
necessity  to  say  that  will  be  binding.  The  Committee  on  Revision  will  cut  those  words 
out  when  it  comes  to  them.    There  is  no  need  of  such  words  as  that  in  the  provision. 

I  hope  the  amendment  will  be  voted  dov/n,  and  that  the  section  will  be  adopted  as  it 
v/as  originally  reported. 

The  amendment  was  rejected. 

Mr.  Thom:  Mr.  Chairman,  I  move  to  add  to  the  end  of  sub-section  H,  after  a  semi- 
colon, these  words:  "But  in  no  such  case  shall  the  case  be  heard  against  the  objection 
of  either  party  while  there  is  an  appeal  or  other  legal  proceeding  to  question  the  action 
of  the  commission,  which  is  relied  on,  pending  and  undetermined." 

Gentlemen,  I  trust  the  minds  of  this  committee  will  deal  fairly  with  this  question.  I 
trust  the  minds  of  the  committee  will  be  open  to  listen  to  reason  about  it.  If  it  is 
determined  beforehand  that  no  matter  what  reason  and  no  matter  what  justice  there  may 
be  in  a  proposition,  it  is  not  to  be  considered  unless  it  comes  from  certain  sources  in 
this  Convention,  then  the  balance  of  us  might  just  as  well  get  up  and  go  home. 

Now,  I  shall  appeal  for  nothing  at  the  hands  of  the  Convention  except  a  consideration 
of  the  reason  that  is  underlying  the  proposition.  These  gentlemen  have  brought  in  a  re- 
port here  which  means  this,  and  they  will  admit  it  means  this:  that  after  the  finding  of 
this  commission,  the  very  next  morning,  any  individual  complaining  of  one  of  these 
carriers  can  go  into  court,  institute  his  proceeding,  and  take  that  finding  of  the  commis- 
sion as  conclusively  just,  reasonable  and  right,  no  matter  if  an  appeal  be  at  once  taken 
or  an  injunction  be  at  once  granted  against  it,  and  the  ultimate  decision  be  against  the 
fmding  of  the  commission. 

Now,  are  you  gentlemen  of  the  Convention  ready  to  say  that  that  shall  be  the  law 
of  this  Commonwealth?  Is  it  right  that  Mr.  A,  who  slips,  into  court  next  morning  after 
the  finding  of  a  commission  and  brings  a  suit  based  upon  the  finding  of  that  commission, 
which  is  subsequently  reversed  on  appeal,  or  which  is  set  aside  by  the  injunction  power 
of  a  court,  shall  succeed  upon  the  assumption  that  that  which  is  subsequently  reversed 
or  set  aside  is  unassailable  in  that  case  before  the  lower  court? 

That  matter  cannot  be  reached  on  appeal  in  the  case  by  the  individual,  because  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2491 


mere  question  to  the  Court  of  Appeals  in  the  individual  case  will  be  whether  there  was 
error  or  not,  and  the  argument  will  be  unanswerable  that  the  lov/er  court  regarded  the 
finding  of  this  commission  as  conclusively  right  by  reason  of  a  constitutional  mandate. 

Will  the  Court  of  Appeals  say  it  was  error  for  it  to  do  so?  Is  it  not  right,  if  there 
is  to  be  a  principle  inserted  in  this  Constitution  that  the  action  of  the  commission  shall 
be  considered  as  conclusively  reasonable  and  just,  that  the  case  in  which  that  position  is 
taken  shall  be  heard  while  there  is  an  appeal  pending  or  an  injunction  proceeding  pend- 
ing to  Question  that  very  proceeding. 

Xow,  if  that  be  not  right.  I  should  like  to  know  why;  and  I  appeal  to  the  gentlemen 
of  the  Convention  to  act  in  their  individual  capacity  in  this  matter,  and  to  be  guided  by 
their  own  intelligence  and  not  to  turn  down  propositions  simply  because  they  do  not 
emanate  from  certain  sources.  If  my  proposition  is  not  inherently  right  and  just,  vote  it 
down;  but  if  it  is  inherently  right  and  just,  then  I  appeal  to  you  to  stand  up  to  it  like 
men,  and  let  us  have  it  in  this  Constitution;  and  if  it  is  not  right,  I  should  like  to  know 
the  reason,  and  for  the  language  to  be  framed  so  that  it  will  be  made  right. 

What  I  am  trying  to  accomplish  is  that  the  decision  of  the  commission  shall 
not  be  considered  conclusively  right,  just  and  reasonable,  in  a  case  between  indi- 
viduals, when(  thereafter,  it  may  be  set  aside  either  on  appeal  or  by  the  injunction  power 
of  the  court.  I  ask  you  whether  that  is  not  right.  It  has  just  been  suggested  to  me  that 
ever3'  man  who  has  made  a  complaint  before  the  commission,  in  whose  favor  the  com- 
mission may  have  decided,  may  be  taken  up  on  appeal  in  that  case,  and  meanwhile  he 
may  have  sued  the  carrier,  basing  his  suit  upon  the  action  of  the  commission,  and  have 
it  determined  in  his  favor  before  you  can  question  the  reasonableness  of  the  ruling  of  the 
commission,  and  yet  on  appeal  the  action  of  the  commission  may  be  set  aside  and  re- 
versed. 

Mr.  Waddill:  In  case  an  appeal  is  taken  and  the  action  is  affirmed,  is  not  the  citizen 
protected  by  the  supersedeas? 

Mr.  Thom:  Yes;  if  a  supersedeas  is  given;  and  if  not,  his  suit  is  lying  there  ready 
to  go  on  with. 

Mr.  Meredith:  I  do  not  suppose  I  need  reply  to  so  much  of  the  speech  of  the  gen- 
tleman who  has  just  taken  his  seat,  as  appeals  to  you  to  act  as  men.  That  seems  to  me 
to  have  been  a  suggestion  that  need  not  have  been  made  to  a  body  of  men  like  this. 
Nor  do  I  suppose  I  need  reply  to  so  much  of  it  as  has  intimated  that  you  are  following 
blindly  any  particular  lead. 

Now,  let  us  see  what  is  asked  by  the  gentleman  from  Norfolk.  Let  us  see  whether 
he  is  asking  a  right  thing,  before  we  make  up  our  minds  to  support  it.  This  report 
gives  him  an  appeal  as  of  right,  a  power  and  right  that  no  other  citizen  of  this  Com- 
monwealth has.  except  in  one  or  two  cases — you  or  I  may  have  our  property  involved, 
and  we  have  no  right  of  appeal,  as  of  right.  The  court  has  got  to  pass  upon  the  question 
whether  it  is  a  meritorous  request,  and  whether  there  has  been  any  error  committed. 
But  these  corporations  are  given  an  appeal  as  of  right.  So  you  cannot  destroy  their 
right  of  appeal.  In  addition  to  that,  if  they  will  give  a  bond  they  suspend  the  action  of 
the  commission.  They  get  ample  protection  if  they  will  take  the  sam^  course  that  you 
and  I  have  to  take  if  we  want  to  suspend  a  judgment.  In  the  first  place,  you  put  them 
above  the  balance  of  us  by  saying  that  they  shall  have  the  right  of  appeal,  and  then  you 
give  them  the  same  protection  in  another  manner,  by  sa^'ing  that  if  they  will  give  a 
suspending  bond  the  decision  of  the  commission  is  suspended. 

Mr.  Brooke:  Do  I  understand  you  to  mean  that  if  a  suspending  bond  is  given  in  a 
matter  which  is  pending  before  the  commission,  the  ruling  which  has  been  made  by  the 
commission  is  not  to  be  considered  as  just,  and  reasonable  in  any  collateral  proceeding? 

Mr.  Meredith:  I  will  reply  to  the  gentleman  by  asking  him  if  he  ever  knew  a  judg- 
ment of  any  court  to  be  binding  when  an  appeal  is  granted? 

[Mr.  Brooke:    I  have  never  known  a  Constitution  to  say  so. 

yiT.  Meredith:    The  Constitution  never  has  said  so,  and  it  does  not  say  so  here.  It 


2492 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTIOIsT  OF  VIRGINIA. 


simply  says  that  you  shall  not  attack  the  reasonableness  of  the  ruling.  There  is  no 
decision  of  the  commission  as  long  as  it  is  suspended?  How  can  a  decision  be  an  active 
decision  when  that  decision  has  been  suspended?  Does  not  the  suspension  order  itself 
destroy,  temporarily,  the  effect  of  the  decision? 

Mr.  Brooke:    It  does  in  that  particular  case  in  which  the  suspension  order  is  given. 

Mr.  Meredith:  It  does  it  as  to  that  particular  thing  as  to  which  you  want  to  raise  a 
controversy.  It  suspends  the  decision  as  to  that  principle,  and  the  validity  and  reason- 
ableness thereof.  I  say  the  entire  decision  of  the  commission  is  suspended  in  mid-air 
until  the  Supreme  Court  shall  say  what  is  right.  This  gives  them  a  chance  to  defend 
themselves.  But  they  want  to  say:  If  you  render  a  decision  against  me,  and  I  take  an 
appeal,  I  will  not  give  any  suspending  bond,  and  if  you  undertake  to  enforce  your  rights 
against  me,  I  will  turn  to  this  provision  the  gentleman  from  Norfolk  has  asked  to  be  put 
into  this  report,  providing  that  if  during  the  pendency  of  my  appeal,  the  decision  of  the 
commission  is  suspended.  That  is  virtually  the  effect  of  it.  The  effect  is  to  get  the 
effect  of  a  suspension  order  without  giving  a  suspending  bond,  and  without  giving  to  any 
man  the  protection  he  would  have  in  the  event  of  a  favorable  decision,  if  there  had  been 
a  suspending  bond.  In  other  words,  it  simply  relieves  them  from  all  responsibility  and 
liability  that  would  acrue  to  them  if  they  were  required  to  give  a  suspending  bond,  be- 
cause you  suspend  the  effect  of  the  decision  by  the  very  fact  of  an  appeal. 

I  respectfully  submit  that,  no  matter  how  biased  we  may  be,  we  should  not  allow  our 
minds  to  be  swayed  from  what  we  have  determined  upon  here,  that  this  ruling  shall  only 
be  reversed  by  a  decision  of  the  Supreme  Court,  that  these  gentlemen  shall  have  the 
right  to  test  that  matter  by  going  to  the  Supreme  Court,  that  if  they  do  not  want  the 
decision  of  the  commission  to  be  enforced,  they  must  give  a  suspending  bond. 

Mr.  Hamilton:  Are  you  willing  to  make  the  language  there  clear  enough  to  show 
just  what  you  think  it  does  mean,  namely,  that  if  a  suspending  bond  is  given  it  stops  all 
proceedings? 

Mr.  Meredith:  No,  sir;  to  insert  a  half  dozen  lines  into  this  report  simply  destroys 
the  symmetry  of  it.  No  man  can  tell  where  we  are  going  to  land,  when  gentlemen  rise 
on  this  floor  and  desire  to  insert  half  a  dozen  lines  here  and  half  a  dozen  lines  there,  into 
this  report.  The  appeal  of  the  gentleman  from  Norfolk  looked  very  fair  on  the  face  of  it, 
when  he  asked  if  he  should  be  compelled  to  go  on  and  submit  to  a  decision  against  him 
by  individuals  when  the  whole  merit  of  the  question  was  pending  on  appeal  in  the  Court 
of  Appeals;  but  when  we  turn  to  the  report  we  find  that  the  fact  is  that  if  he  had  given 
a  suspending  bond,  he  would  have  been  protected,  and  at  the  same  time  the  other  side 
would  be  protected.  When  we  are  asked  that  these  lines  be  inserted  here,  are  we  to  do 
it  to  satisfy  the  gentleman's  feelings  of  fear,  or  are  we  to  decide  these  matters  according 
to  justice  and  the  well-recognized  principles  of  law  and  practice? 

I  am  asked  why  I  would  not  put  into  the  report  language  which  would  make  it  plain 
that  if  a  suspending  bond  is  given  then  the  reasonableness  of  the  decision  may  be 
attacked.  My  reply  to  that  is  very  easy.  If  a  suspending  bond  is  given  it  necessarily 
suspends  the  decision  of  the  commission.  Let  us  recognize  well-settled  principles  of  law. 
What  is  the  use  of  our  saying  that  if  a  suspending  bond  is  given  the  effect  of  it  is  to  sus- 
pend the  decision  of  the  commission,  when  we  know  that  by  all  rules  of  law  that  is  the 
effect  of  it  without  stating  it  in  express  terms.  There  can  be  no  need  for  inserting  such 
a  provision  that  the  decision  shall  be  suspended  if  a  suspending  bond  is  given,  we  are 
simply  repeating  what  is  the  law  of  the  land,  and  has  been  for  ages.  If  we  allow  these 
gentlemen  to  have  an  appeal  without  giving  a  suspending  bond,  we  give  them  a  right 
which  no  other  man  has,  and  which  no  other  man  ought  to  have:  it  enables  these  cor- 
porations to  take  an  appeal  with  the  knowledge  that  if  they  can  keep  the  matter  in 
courts  for  twelve  months  they  can  keep  on  charging  their  excessive  rates,  and  the  mer- 
chants and  men  who  are  shipping  grain  from  their  farms  are  liable  to  these  over-charges. 
But  if  they  do  what  it  is  proper  for  them  to  do  for  the  protection  of  these  people,  by 
giving  a  s.uspending  bond,  they  can  go  on  and  charge  their  rates,  and  when  the  decision 


DEBATES  OE  THE  COXSTITUTIO^" AL  COXVEXTIOX  OE  VIEGIXIA. 


2^93 


is  against  them  they  -^ill  do  justice  and  no  it  speedily  by  reason  of  the  fact  that  they  have 
to  make  the  returns  provided  for  in  this  report. 

I  earnestly  urge  that  you  gentlemen  will  not  vote  for  the  amendment  of  the  gentle- 
man from  Norfolk  (Mr.  Thom),  for  the  effect  of  it  will  be  to  grant  a  protection  they  are 
not  entitled  to,  except  when  they  give  a  suspending  bond. 

Mr.  Brooke:  Is  it  your  understanding  that  a  suspending  bond  given  by  a  carrier, 
after  a  decision  against  it  by  the  commission,  does  any  more  than  suspend  the  action  of 
the  commission  upon  that  decision?  Does  it  have  any  effect  whatever  upon  collateral 
proceedings?  Of  course  it  suspends  any  judgment  that  might  be  rendered  in  the  pro- 
ceeding in  which  the  suspending  bond  is  given.  Tv'e  all  understand  that,  and  ordinarily 
We  know  that  a  suspending  bond  has  no  other  effect  than  to  suspend  the  execution  of 
the  judgment  in  a  particular  case.  Do  you  think,  in  the  case  just  given,  that  it  sus- 
pends the  proceeding  in  the  civil  cause?    That  is  the  trouble  in  my  mind. 

Mr.  Meredith:  If  the  gentleman  will  turn  to  the  section  prescribing  how  that 
appeal  bond  may  be  given,  he  will  see  that  it  allows  the  company  to  go  on  making  their 
charges,  but  requires  it  to  keep  an  account  of  the  excessive  charges,  and  when  the 
decision  is  finally  rendered,  if  it  is  a  decision  in  favor  of  the  company,  the  bond  is  a 
nullity,  and  it  does  not  have  to  pay  anything.  It  has  been  justified  in  charging  the  rate. 
If  the  decision  is  against  the  corporation,  and  in  favor  of  the  individual,  it  prescribe  what 
shall  be  done.  In  this  case  you  have  set  out  exactly-  what  is  the  effect  of  the  appeal, 
that  it  suspends  entirely  the  decision  of  the  commission  as  to  what  the  rate  shall  be  and 
as  to  the  propriety  of  the  previous  rate. 

Mr.  Brooke;    That  applies  to  rates  only.    In  that  section  you  say: 

No  action  of  the  said  commission  prescribing  or  affecting  the  charges,  or  classifica- 
tion of  traffic,  of  any  transportation  or  transmission  company  shall  be  delayed  or  sus- 
pended— 

ISIark  you,  no  action  of  the  commissioner  "shall  be  delayed  or  suspended  in  its  opera- 
tion," "by  reason  of  any  appeal  by  such  corporation. — 

Unless  suspending  bond  is  given.  If  the  suspending  bond  is  given,  it  is  the  action 
of  the  commission  which  is  suspended;  not  the  action  of  an  individual  in  a  collateral 
proceeding. 

Mr.  Meredith:  You  have  asked  me  a  question.  Are  yoti  willing  to  stand  here  and 
say  that,  in  your  belief,  if  a  suspending  bond  is  given,  any  man  could  go  on  and  sue  for 
damages  or  for  overcharges  pending  that  appeal? 

Mr.  Brooke:  I  will  answer  that  question.  I  may  differ  with  you  about  it,  and  I  may 
differ  with  you  unfortunately;  but  I  think  that,  under  the  language  of  this  article,  if  a 
suspending  bond  is  given  in  a  matter  between  the  commission  and  an  individual,  it  does 
not  at  all  suspend  the  right  of  an  individual  to  bring  his  collaterial  suit  against  the  rail- 
road company  to  recover  damages  based  upon  the  decision  which  has  been  suspended. 

Mr.  Meredith:  But  does  not  the  suspending  bond  suspend  the  decision  of  the  com- 
mission on  all  these  matters?  Does  it  not  provide  that  they  may  go  on  and  make  these 
charges,  but  shall  keep  an  account  of  them  and  shall  refund  them,  ultimately,  if  the 
decision  of  the  court  is  against  them?  Does  not  that  show,  not  that  further  proceedings 
of  the  commission  are  suspended,  but  that  what  has  been  done  in  the  past  is  suspended? 
It  is  provided  here  what  they  miay  go  on  and  do,  by  way  of  charges,  what  the  result  is  if 
the  decision  is  in  their  favor,  and  -what  the  result  is  K  it  is  against  them.  It  is  specifi- 
cally set  forth  here  what  shall  be  the  effect  of  the  suspending  bond.  I  submit  there  is 
no  earthly  danger  to  these  gentlemen  if  they  will  simply  follow  the  course  which  is  pre- 
scribed for  them,  and  which  is  the  course  prescribed  for  individuals  if  they  desire  to 
suspend  a  judgment.  In  this  case  it  is  not  a  judgment  as  to  what  is  right  at  any  partic- 
ular time,  but  a  judgment  as  to  what  shall  be  the  course  of  performance  of  a  public  duty; 
but  I  say  that,  in  effect,  it  is  the  same  in  principle. 

If  a  suspending  bond  is  given,  the  act  provides  that  you  raay  go  on  and  do  this  thing. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYEXTION  OF  VIEGIXIA. 


provided  you  give  the  bond,  keep  an  account  of  your  overcharges,  etc.,  so  that  if  this 
matter  is  decided  in  favor  of  the  merchant  or  the  farmer,  he  shall  have  a  chance  of 
speedily  recovering  his.  loss,  and  not  be  subjected  to  a  long  and  expensive  litigation.  I 
respectfully  submit  that  it  is  fair  to  both  sides.  But  if  you  say  to  them:  You  may  take 
an  appeal,  and  if  another  man  undertakes  to  enforce  this  article  against  you,  pending 
appeal,  nothing  shall  be  done,  you  are  destroying  what  has  been  put  into  this  article  for 
the  benefit  of  the  citizen,  which  also  gives  ample  protection  to  the  corporation. 

I  earnestly  ask  that  the  amendment  of  the  gentleman  from  Norfolk  shall  not  be 
adopted,  because  it  destroys  very  much  of  the  beneficial  effect  of  this  provision. 

Mr.  William  A,  Anderson:  I  should  like  to  ask  the  gentleman  from  Norfolk  whether 
the  purpose  of  his  amendment  is.  to  give  to  an  appeal  and  supersedeas  in  any  case  where 
the  appeal  is  taken  from  the  judgment  of  the  commission,  the  effect  of  stopping  all 
further  litigation  in  the  State  between  other  parties  and  other  railroad  companies  in- 
volving the  same  question.  If  that  is  the  effect,  it  does  seem  to  me  the  amendment 
goes,  too  far.  It  would  place  litigants  under  this  act  in  a  very  different  situation  from 
general  litigants  in  the  State.  For  instance,  there  may  be  a  suit  between  the  gentleman 
from  Pulaski  as  plaintiff  on  the  one  side,  and  the  gentleman  from  Roanoke  as  defendant 
on  the  other.  The  judgment  may  be  in  favor  of  the  gentleman  from  Pulaski,  as  I  sup- 
pose it  would  be,  because  I  think  the  gentleman  from  Pulaski,  in  his  own  judgment,  is 
infallible  on  questions  of  this  kind.  Suppose  the  judgment  is  in  his  favor,  and  an  appeal 
is  taken  by  the  gentleman  from  Roanoke  to  the  Court  of  Appeals.  I  am  speaking  now 
of  the  ordinary  controversy  between  man  and  man.  Suppose  that  a  supersedeas  is 
granted,  or  a  writ  of  error  and  supersedeas,  if  it  is  a  case  at  law,  to  the  gentleman  from 
Roanoke:  That  would  not  have  the  effect  of  stopping  litigation  involving  the  same 
question  between  other  litigants,  until  the  Court  of  Appeals  had  decided  the  case.  As  I 
understand  it,  the  object  of  this  amendmxent  is  to  make  that  appeal  operate  as  a  super- 
sedeas throughout  the  Commonwealth,  stopping  all  possible  claims  that  might  arise  under 
this  act,  of  the  same  kind. 

Mr.  Robertson:  The  judgment  of  a  court  at  law  or  in  chancery,  only  binds  the  par- 
ties litigant,  but  the  action  of  this  remarkable  body  we  are  creating  here  is  legislative, 
judicial  and  executive,  and  whenever  this  commission  makes  a  decision,  it  binds  every- 
body in  this  Commonwealth,  whether  he  is  a  party  to  the  proceeding  or  not.  If  they  say 
the  rates  of  the  Southern  Railway  Company  shall  be  thus,  and  so,  it  settles  the  matter, 
and  everybody  in  the  Commonwealth  is  bound  by  its  decision.  An  appeal  may  be  taken 
by  the  railroad  company  in  an  action  between  A  and  the  company,  and  the  supersedeas 
will  only  cover  the  grievances  of  A.  The  bond  would  not  protect  the  company  at  all 
with  reference  to  other  people,  who  rely  on  this  decision.  It  is  not  simply  the  judgment 
of  a  court  at  lav/;  but  is.  an  enactment,  by  a  legislative  body,  that  binds  everybody  in 
this  Commonwealth.  An  irresponsible  party,  suing  under  that  law,  could  recover  his 
money,  put  it  in  his  pocket,  and  afterwards  the  Court  of  Appeals  might  decide  that  the 
action  of  the  commission  was  unreasonable  and  unjust,  and  set  the  decision  aside. 

All  of  these  gentlemen  talk  about  this  commission  as  if  it  were  a  court.  It  is  a 
court  in  the  sense  that  an  appeal  can  be  taken  from  it,  but  it  is.  a  legislature  in  the 
sense  that  it  can  make  laws  for  the  people  of  the  Commonwealth  to  bind  everyone, 
whether  they  are  a  party  to  the  proceedings  before  it  or  not. 

Mr.  Braxton:  Inasmuch  as  this  commission  in  fixing  rates,  and  making  rules  and 
regulations  acts  as  a  Legislature,  would  not  the  difliculties  which  he  has  pointed  out 
apply  to  any  act  of  the  Legislature,  the  constitutionality  of  which  was  being  questioned 
in  the  Court  of  Appeals? 

Would  the  questioning  of  the  constitutionality  of  any  statute  have  the  effect  of 
suspending  the  operation  of  that  statute  throughout  the  Commonwealth? 

Mr.  Robertson:  But  if  the  Legislature  passes  a  law,  we  can  go  to  the  next  one,  if  it 
in  unjust,  and  get  it  repealed.  This  body  you  are  creating  is  paramount.  Its  action  is 
legislative  and  you  give  a  nominal  appeal  to  a  court  that  acts  only  judicially.    They  do 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2495 


act  as  a  Legislature  in  promulgating  these  rates,  and  then  to  give  the  appearance  oi 
fairness,  an  appeal  is  given  to  a  court  that  is  bound  to  act  judicially.  You  say,  by  that 
legislative  action,  which  cannot  be  repealed  in  the  future,  that  everybody  in  this  Com- 
monwealth can  sue  that  carrier,  although  an  appeal  is  pending  at  the  time. 

Mr.  Meredith:  If  an  action  is  brought  and  you  undertake  to  offer  the  decision  of  the 
commission  in  evidence,  which  you  have  to  do,  would  it  not  be  a  complete  reply  tO'  show 
how  that  the  decision  had  been  appealed  from  and  a  suspending  order  passed;  and  would 
not  the  testimony  then  become  incompetent? 

Mr.  Robertson:  Xo,  sir:  for  the  reason  that  the  suspending  order  would  have  been 
given  in  a  case  between  A  and  the  railroad  company,  while  here  would  be  a  suit  brought 
by  B  against  the  railroad  company,  which  the  suspending  order  does  not  affect  in  any 
particular.  You  have  assumed  that  this  suspending  order  would  protect  everybody  in 
the  Commonwealth. 

Mr.  Meredith:  Take  it  in  this  way:  A  proceeding  is  started  by  John  Smith  against 
the  railroad  company  for  overcharges.  The  decision  of  the  commission  is  in  favor  of 
John  Smith,  that  the  rates  are  improper  and  that  they  should  be  amended.  An  appeal 
is  taken  by  the  railroad  company  to  the  Court  of  Appeals.  Now,  Dick  "Brown  feels  that 
he  is  aggrieved.  The  company  has  continued  to  charge  the  same  rate.  He  brings  suit 
against  the  company,  and  undertakes  to  offer  the  decision  of  the  commission  in  evidence 
as  to  the  unreasonableness  and  injustice  of  the  rates.  He  offers  in  evidence  the  judg- 
ment of  this  commission  as  the  basis  of  his  action.  You  offer  proof  that  the  decision  of 
that  commission  has  been  appealed  from  and  suspended.  Would  not  that  case  have  to  go 
cut  of  court? 

Mr.  Robertson:  Xo,  sir;  and  I  tell  you  that  under  the  language  of  this  report,  that 
is  not  the  true  construction.  You  gentlemen,  every  one  of  you,  have  contended  that  this 
commission  in  acting  in  this  matter,  acts  as  a  legislative  body.  If  that  be  true  if  makes 
it  a  law  for  everybody.  But  you  then  make  it  a  judicial  body  for  the  purpose  of  an 
appeal.  V\Tiile  that  appeal  is  pending  I  say  that  a  third  party  can  sue.  unless  you  make 
it  plain  in  your  provision,  that  such  is  not  a  proper  construction  of  the  law, 

Mr.  Meredith:  Do  you  contend  that  the  decision  would  be  invalid  as  between  the 
parties,  and  binding  upon  third  parties? 

Mr.  Robertson:  I  do  not  say  that,  as  a  matter  of  justice,  such  should  be  the  case. 
I  am  arguing  about  the  effect  of  this  statute  that  you  are  attempting  to  put  into  this 
Constitution  and  that  you  doubtless  will  put  into  it.  It  does  seem  to  me  that  if  you  are 
going  to  provide  lor  a  suspending. bond  you  ought  to  be  willing  to  say  what  the  effect  of 
that  suspending  bond  is  and  not  leave  it  as  a  matter  for  construction,  vrhen  you  see  that 
the  lawyers  on  this  floor,  who  are  just  as  honest  and  who  probably  know  almost  as  much 
law  as  you  do,  differ  from  you  about  the  construction  of  it. 

Mr.  William  A.  Anderson:  I  agree  with  the  gentleman  from  Roanoke  that  every 
proper  remedy  must  be  given  to  litigants  in  cases  arising  under  this  act,  to  enable  them 
to  have  a  judicial  adjudication  of  their  rights.;  but  I  differ  from  my  friend  from  Roanoke 
as  to  the  cnaracter  of  the  functions  to  be  discharged  by  this  commission.  It  is  a  legisla- 
tive commission,  exercising  legislative  powers;  but  the  courts  have  decided  that,  when  it 
comes  to  fixing  rates,  although  it  is  the  act  of  a  legislative  body,  it  is  exercising  a  judi- 
cial function. 

:Mr.  Robertson:  I  understood  the  chairman  of  this  committee  to  cite  a  case  from 
the  Supreme  Court  of  the  United  States  holding  that  the  fixing  of  rates  was  in  its  nature 
and  necessarily  a  legislative  act,  and  he  argued  that  the  Legislature  should  delegate  this 
power  to  a  commission  because  the  Legislature  itself  could  not  fix  rates. 

Mr.  William  A  Anderson:  The  Supreme  Court  has  held  that  this  was  a  legislative 
power;  but  they  have  also  held  that  while  this  was  a  power  to  be  exercised  by  the  Legis- 
lature, it  must  be  exercised  judicially,  and  that  the  parties  to  be  afe'ected  must  be  cited 
and  given  an  opportunity  to  introduce  evidence  and  be  fairly  heard  before  the  commis- 
sion made  their  final  decision.    That  has  been  held  by  the  Supreme  Court  of  the  United 


2496  DEBATES  OF  TPIE  COXSTITUTIOXAL  CONVENTIOi^  OF  VIRGINIA. 

States  and  I  think  my  friend  will  find  that  such  is  the  conclusion  of  Judge  Thompson,  in 
his  review  of  these  cases.  The  court  has  gone  further  in  that  direction  since  the 
decisions  cited  by  Judge  Thompson  than  they  had  gone  before.  I  want  to  ask  my  friend 
from  Roanoke  if,  in  his  judgment,  the  M^rit  of  supersedeas  to  be  given  to  every  litigant 
taking  an  appeal  will  not  be  as  far-reaching  as  the  order  appealed  from. 

Mr.  Robertson:  That  is  what  I  do  not  know,  and  I  cannot  for  my  life,  understand 
why  these  gentlemen  object  to  making  it  so  plain  that  every  man  although  he  be  a  fool, 
can  understand  it.  For  some  reason  they  want  to  leave  it  in  this  condition  of  doubt,  and 
they  say  they  are  not  willing  to  put  in  language  which  will  make  it  mean  what  you  say 
it  does  mean. 

Mr.  William  A.  Anderson:  It  seems  to  me  that  any  writ  of  supersedeas  would  be  as 
far-reaching  as  the  order  appealed  from.  It  would  suspend  the  order  appealed  from  and 
if  it  has  that  effect  I  do  not  see  why  they  would  need  any  other  relief.  Of  course  cases 
involving  the  same  principle  might  arise  between  other  parties  and  the  parties  to  those 
cases,  until  the  principle  was  adjudicated  by  the  Supreme  Court  of  the  State,  would  have 
the  same  remedy  and  appeal  in  each  case;  but  I  hardly  suppose  that  any  citizens  of  the 
State  would  be  willing,  at  their  own  cost,  to  litigate  questions  of  this  sort  when  they 
were  pending  in  the  Suprem.e  Court  of  the  State.  I  also  doubt  very  much  whether  any 
court  would  decide  even  in  collateral  suits,  a  question  which  the  court  was  informed  was 
pending  in  the  Supreme  Court  of  Virginia  and  awaiting  adjudication  there.  It  seems  to 
me  that  the  act  as  written  gives  to  this  writ  of  supersedeas  the  same  effect  that  it  has  in 
all  other  cases  and  that  it  is  as  wide  as  the  judgment  appealed  from. 

Mr.  Gillespie:  The  question  involved  is  as  to  v/hat  is  the  effect  of  the  suspending 
bond.  If  the  suspending  bond,  which  is  to  be  executed  would  have  the  effect  claimed  for 
it  by  the  gentleman  from  Richmond  it  seems  to  me  that  would  be  sufRcient;  but  if  there 
is  any  question  about  it,  then  to  my  mind,  in  order  to  deal  fairly  we  ought  to  put  that 
question  at  rest.    Therefore  I  offer  a  substitute. 

Mr.  Meredith:  Can  there  be  any  classes  of  cases  as  to  which  this  could  apply  except 
two,  one  in  which  the  suit  is  based  upon  the  decision  of  the  commission,  and  the  other 
where  the  suit  is  a  common  law  right  and  the  man  has  brought  this  action  for  damages. 
Where  the  suit  is  based  upon  the  decision  of  the  commission,  if  the  decision  has  been 
suspended,  that  suspension  would  be  pleaded  in  bar.  Nobody  will  doubt  that.  Where 
the  action  is  brought  for  damages  the  plaintiff  would  offer  in  evidence  the  decision  of  the 
commission.  "^Vhen  that  is  offered  the  other  side  is  not  allowed  to  dispute  the  reason- 
ableness of  it,  but  simply  offers  to  prove  the  suspension,  and  the  evidence  then  becomes 
incompetent.  I  respectfully  submit  that  these  are  the  only  two  classes  of  cases  in  which 
this  question  can  arise. 

Mr.  Pettitt:  Suppose  that  no  suspending  bond  is  given.  Suppose  there  is  simply 
an  appeal.  Shall  all  the  parties  who  feel  themselves  aggrieved,  pending  the  appeal,  be 
permitted  to  institute  suit,  thus  multiplying  costs  without  any  reason,  until  there  has 
been  a  decision  in  the  case  involving  the  validity  of  the  very  act  involved  in  all  these 
numerous  cases? 

Mr.  Meredith:  My  answer  to  that  is  this:  You  must  recognize  the  fact  that 
these  people  are  contending  against  a  very  large,  very  wealthy  and  very  powerful  class 
of  people.  They  can  give  a  suspending  bond.  They  are  also  able  to  give  the  bond,  they 
can  protect  themselves  and  they  can  give  m.e  protection.  Why  should  they  be  allowed 
to  say:  Although  I  have  the  ability  to  give  a  suspending  bond,  although  the  law  allows 
me  to  give  it,  I  will  not  do  it.  I  am  going  to  take  advantage  of  the  fact  that  you  have 
said  that,  pending  an  appeal,  you  shall  not  go  against  me. 

In  other  wwds,  it  would  defeat  the  very  object  of  this  act,  which  is  to  give  the 
people  protection  by  requiring  a  suspenaing  bond. 

Mr.  Pettitt:  But  I  understand  it  is  stated  that  the  appeal  will,  of  itself,  have  the 
effect  of  suspending  the  operation  of  that  general  law  fixing  rates. 

Mr.  Meredith:    No;  the  appeal,  by  itself,  would  not  necessarily  do  so.    It  would 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGIXIA. 


249  X 


depend  upon  the  decision  of  the  court  as  to  whether  it  vras  a  proper  or  an  improper  case. 
It  would  be  almost  impossible  for  us  to  conceive  of  all  the  questions  that  might  arise. 
There  might  be  an  appeal  taken  as  to  one  thing,  whereas  the  question  at  issue  in  the  suit 
tried  in  the  lower  court  might  be  another. 

Mr.  Gillespie:  I  desire  to  state  that,  in  my  view,  the  effect  of  the  suspending  bond 
is  to  stop  the  operation  of  the  judgment  or  order  of  the  commission.  But  there  are 
other  gentlemen  here  who  seem  to  differ  from  me,  for  whose  opinions  I  have  very  great 
respect.  Therefore  I  suggest  this  as  a  substitute  for  the  amendment  proposed  by  the 
gentleman  from  Norfolk  (Mr.  Thom:) 

"That  no  such  cases  shall  be  heard  while  the  order  of  the  commission  is  suspended 
by  a  suspending  bond  executed  for  the  purpose  of  appealing  from  an  order  of  the 
commission." 

Mr.  Thom:  Mr.  Chairman,  it  seems  my  motion  has  been  misinterpreted.  I  was 
asked  a  question  in  reference  to  its  scope  by  the  gentleman  from  Rockbridge  (Mr. 

Anderson;,  which,  I  fear,  he  regarded  as  an  oratorical  question,  as  he  did  not  wait  for  an 
answer.  I  have  drawn  it  in  such  shape,  it  seems  to  me,  as  to  make  it  absolutely  un- 
objectionable.   I  want  it  to  read  as  follows: 

But  in  no  such  case  in  which  the  action  of  the  commission  is  relied  on  as  con- 
clusively reasonable,  just  or  valid,  shall  the  case  be  heard  against  the  objection  of  either 
party  while  there  is  pending  and  undetermined  an  appeal  or  other  legal  proceeding  to 
question  the  action  of  the  commission  so  relied  on. 

My  friend  from  Fluvanna  (Mr.  Pettit)  asked  a  question  a  moment  ago  that  seems  to 
me  to  strike  at  the  very  root  of  this  matter.  Suppose  there  is  no  appeal  bond  given. 
Whatever  may  be  our  difference  of  opinion — and  I  am  inclined  to  agree  with  the  gentle- 
man from  Roanoke  (Mr.  Robertson)  as  to  the  effect  of  this  bond — but  whatever  may  be 
our  dift'erence  of  opinion  as  to  the  eff^ect  of  a  supersedeas  bond,  we  have  at  least  this: 
"ViTiat  is  the  condition  of  affairs  where  no  appeal  bond  is  given?  The  carrier  would  find 
itself  in  the  condition,  if  no  appeal  bond  is  given,  that  it  has  to  go  on  and  do  business  in 
accordance  with  the  action  of  the  commission  as  to  the  future.  There  would  be  no 
danger  in  the  future  of  a  wrong  to  anyone  except  to  the  carrier.  If  the  appeal  is  decided 
in  his  favor,  he  would  have  gone  on  and  done  business  in  accordance  with  the  finding  of 
the  commission  against  it. 

Mr.  Pettit:  Suppose  the  company  though,  refuses  to  abide  by  the  action  of  the 
commission? 

Mr.  Thom:  Then  there  is  no  way  for  it  to  do  except  by  giving  this  appeal  bond,  by 
the  very  terms  of  the  article.    The  language  of  sub-section  E  of  this  article  is: 

But  no  action  of  the  said  commission  prescribing  or  affecting  the  charges  of  classi- 
fication or  control  of  any  transportation  or  transmission  company  shall  be  delayed  or 
suspended  in  its  operation  by  reason  of  any  appeal  or  of  any  proceedings  resulting  from 
such  appeal  prior  to  the  final  reversal  of  such  order  unless  a  suspending  bond  be  given. 

:\ir.  Pettitt:  But  that  very  section  contemplates  the  continuance  by  the  railroad 
company  of  its  original  charges. 

Mr.  Thom:  On  the  contrary,  it  says  the  railroad  company  shall  at  once  adjust  its 
charges  to  the  finding  of  the  commission  unless  it  gives  an  appeal  bond. 

Mr.  Pettitt:  The  appeal  bond  is  to  refund  the  difference  between  the  charges  they 
make  and  the  charges  they  heretofore  made.  The  implications  is  that  the  company  will 
go  on  with  its  original  charges. 

Mr.  Thom:  But  it  cannot  go  on  unless  it  gives  that  appeal  bond  to  refund.  There 
iK  no  doubt  about  the  construction  that  the  carrier  must  adjust  its  rates  to  the  finding 
of  the  commission  unless  it  gives  this  appeal  bond.  So  that  there  is  no  danger  in  the 
future  to  anybody.  There  can  be  no  suit  after  the  finding  of  the  commission,  because 
the  carrier  must  adapt  itself  to  the  finding  of  the  commission  as  to  its  future  action;  but 


2498 


DEBATES  OF  THE  COIsTSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


how  will  the  case  stand  as  to  anybody  who  has  a  complaint  prior  to  the  finding  of  the 
commission,  and  where  no  appeal  bond  is  given? 

Now,  you  have  given  the  right  to  this  company  to  appeal  without  a  bond  if  it  adjusts 
its  future  conduct  to  the  finding  of  the  commission.  If  it  does  s.o  adjust  itself  to  the 
finding  of  the  commission,  and  takes  an  appeal  without  a  bond,  and  parties  theretofore 
complaining  undertake  at  once  to  go  into  court  and  try  their  cases  on  the  basis  of  the 
finding  of  the  commission  as  conclusively  reasonable  and  just,  what  will  the  situation  be? 
Notwithstanding  that  on  appeal  the  finding  of  the  commission  shall  be  reversed,  this 
litigant  can  come  into  court,  have  his  case  tried,  get  a  judgment,  collect  his  money,  and 
no  power  on  earth  to  make  him  refund  it. 

Mr.  Pettitt:  There  will  be  no  necessity  for  going  into  court  if  the  company  does 
what  you  say  it  will  do. 

Mr.  Thorn:  I  am  talking  about  the  complaint  as  to  what  the  company  has  done 
prior  to  the  finding  of  the  commission.  It  has,  according  to  the  concessum  of  the  case 
been  charging  what  is  complained  of  as  an  unreasonable  rate,  and  what  is  an  illegal  and 
a  void  rate,  for  five  years,  within  all  the  time  of  the  period  of  limitations.  There  may  be 
suits  brought  against  this  company  to  collect  on  the  basis  of  a  rate  which  has  now  been 
declared  to  be  an  illegal  rate.  All  the  courts  of  this  Commonwealth  will  be 
filled,  perhaps,  with  suits  brought  upon  the  finding  of  this  commission  that  the  rate  is 
illegal.  Now,  when  that  is  on  appeal,  when  it  is  thereafter  reversed  on  appeal,  these 
five  years  of  accumulated  suits  may  be  brought  into  the  courts  of  this  Commonwealth 
and  decided  against  this  carrier  on  the  basis  that  what  is  afterwards  determined  to  be 
an  unjust  decision  of  the  commission  must  be  considered  for  the  purposes  of  his  litiga- 
tion conclusively  reasonable,  just  and  valid.    Now,  is  that  right? 

My  provision  only  requires  that  where  a  decision  of  that  court  is  relied  on  as  con- 
clusively just,  there  shall  be  a  continuance,  not  where  they  are  willing  to  go  into  the 
matter,  but  where  they  come  and  say,  "Here  is.  a  decision  conclusively  reasonable  and 
just.  Now,  before  you  shall  say  it  is  concluded,  you  shall  have  a  continuance  if  an 
appeal  is  pending  or  if  an  injunction  proceeding  is  pending." 

Mr.  Meredith:  How  can  a  man  come  into  court  and  say  he  relies  on  a  judgment  or 
decision  except  conclusively? 

Mr.  Thorn:  The  very  minute  he  does  rely  on  it  conclusively  he  can  have  a  contin- 
uance if  there  is  a  proceeding  pending  to  question  it.  My  friend  here  says  if  an  appeal 
bond  is  given,  then  the  finding  of  the  com^mission  stands  for  no  purpose  whatever. 

Then  I  say  where  there  is  no  appeal  bond  given  why  should  there  not  be  a  contin- 
uance until,  under  the  quick  processes  of  a  hearing  in  the  appellate  court,  which  have 
been  established  by  this,  proposed  article?  Why  should  not  that  matter  be  left  open 
until  it  is  finally  and  ultimately  determined  by  the  tribunals  which  this  Convention  has 
given  to  these  people  to  inquire  into  and  pass  upon  that  question?  If  not,  you  will  enable 
every  man  who  has  been  doing  business  for  five  years,  under  this  complaint  to  come  in 
and  com^plain  of  the  carrier,  although  the  carrier  may,  in  the  appellate  court,  succeed  in 
reversing  the  judgment  which  is  relied  on,  as  the  basis  of  this  great  number  of  suits. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

AFTERNOON  SESSION. 

Mr.  Braxton  moved  that  when  the  chair  is  vacated  it  be  until  4  o'clock  this  after- 
noon. 

The  motion  was  agreed  to. 

Mr.  Thom:    I  offer  the  following  resolution: 

Resolved,  That  the  Sergeant-at-Arms,  under  the  direction  of  the  President  of  the 
Convention,  be'  and  is  hereby  authorized  to  make  all  necessary  and  suitable  arrange- 
ments for  the  occupancy  of  the  Mechanics'  Institute  building  by  the  Convention  on 
Wednesday,  the  19th  instant. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2^99 


The  resolution  was  agreed  to. 

The  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTER  RECESS. 
The  Convention  reassembled  after  the  expiration  of  the  recess. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  further  consideration  of  the  report  of  the  Committee  on  Corporations,  Mr, 
Ayers  in  the  chair. 

The  Chairman:  The  question  is  on  the  substitute  offered  by  the  gentleman  from 
Tazewell  (Mr.  Gillespie)  to  the  amendment  offered  by  the  gentleman  from  Norfolk  (Mr, 
Thorn.) 

Mr.  Braxton:  Mr.  Chairman,  if  the  gentleman  from  Tazewell  will  permit  me,  I 
should  like  to  read  an  amendment  which  I  wish  to  offer  in  lieu  of  the  one  he  has  offered, 
and  which  I  think  covers  the  ground  he  desires,  to  cover.    It  is  as  follows: 

Strike  out  all  of  Section  H,  beginning  with  the  words  "^but  in  no  such  proceeding," 
in  line  224,  and  insert  in  lieu  thereof  the  following — it  is  almost  the  same  language  that 
is  there  now,  but  I  put  it  in  this  form  so  as  to  get  it  straight: 

But  in  no  such  proceeding  by  any  person  against  such  corporation,  nor  in  any 
collateral  proceeding,  shall  the  reasonalDleness,  justness  or  validity  of  any  rate,  charge, 
classification  of  traffic,  rule,  regulation  or  requirement  heretofore  prescribed  by  said 
commission,  within  the  scope  of  its  authority,  and  then  in  force,  be  questioned:  provided, 
however,  that  no  case  based  upon  or  involving  any  action  of  said  commission  shall  be 
heard  or  disposed  of  against  the  objection  of  either  party  so  long  as  such  action  of  the 
commission  is  suspended  in  its  operation  by  any  order  of  the  Suprem^e  Court  of  Appeals, 
as  provided  for  in  this  Constitution,  or  by  any  lav/  passed  in  pursuance  thereof. 

Mr.  Gillespie:  Mr.  Chairman,  I  ask  then  to  withdraw  the  substitute  offered  by  my- 
self.  I  think  the  one  just  offered  covers  the  idea. 

The  Chairman:  Does  the  gentleman  from  August  offer  that  as  a  substitute  for  the 
amiendment  offered  by  the  gentleman  from  Norfolk  (Mr.  Thom)? 

Mr.  Braxton:  Yes,  sir.  I  hope  it  will  meet  the  views  of  the  gentleman  from  Norfolk. 
I  think  it  goes  as  far  as  we  can  safely  go  in  that  direction.  It  provides  that  as  long  as 
this  action  of  the  commission  is  suspended  by  any  order  of  the  Court  of  Appeals  no  case 
shall  be  heard  against  the  objection  of  either  party.  The  only  difference  between  me 
and  my  friend  from  Norfolk  as  I  understand,  is  that  he  thinks  it  ought  to  provide  for  a 
suspension  by  an  injunction  issued  by  an  inferior  court;  but  it  is  the  opinion  of  the 
Committee  on  Corporations  that  no  inferior  court  should  have  the  right  to  interfere  by 
injunction  or  otherwise  with  the  action  of  this  commission.  We  have  provided  an 
appeal  directly  to  the  Supreme  Court  of  Appeals.,  that  can  be  taken  promptly  and  heard 
immediately,  and  the  action  of  the  commission  suspended  on  it;  and  we  think  that  is  all 
the  remedy  that  can  be  asked  or  ought  to  be  asked  or  permitted.  Otherwise  we  w^ould 
have  endless  confusion  resulting  from  the  interference  with  the  action  of  this  commis- 
sion by  possibly  every  subordinate  court  in  the  country.  If  the  comimission  undertakes 
to  take  any  action  that  is  ultra  vires,  that  is  irregular,  that  is  unjust  or  unreasonable, 
the  remedy  is  immediately  by  appeal  to  the  Supreme  Court  of  Appeals. 

Now,  if  the  railroad  chooses  to  take  such  an  appeal  and  not  obtain  a  supersedeas  in 
the  manner  provided  by  law,  they  must  abide  by  the  decision  until  the  appeal  is  decided, 
like  every  one  else  does.,  but  if  they  obtain  a  suspension  in  the  manner  authorized  or  pro- 
vided by  this  Constitution,  then  so  long  as  it  is  suspended,  no  action  between  individual 
parties  based  upon  that  shall  be  disposed  of  pending  that  s.uspension. 

Now,  I  call  the  attention  of  my  friend  from  Tazewell  (Mr.  Gillespie)  to  the  fact  that 


2500 


DEBATES  OF  THE  CONSTITUTIOAtal  CONVENTION  OF  VIRGINIA. 


some  of  those  suspensions  require  a  suspending  bond,  such  as  is  provided  for  in  hearing 
others  that  require  a  suspending  bond.  If  they  wish  to  suspend  any  action  of  the  com- 
mission fixing  rates  of  charges  or  classification  of  trafiic  involving  the  payment  of  money, 
there  must  be  a  refunding  bond;  but  if  it  is  just  from  an  ordinary  regulation  which  does 
not  involve  the  payment  of  money,  I  imagine  there  would  be  no  suspending  bond.  The 
only  bond  required  would  be  an  appeal  bond  to  pay  the  costs,  because  there  would  be 
nothing  to  refund.  It  would  not  involve  the  payment  of  money.  Therefore  I  do  not  use 
the  expression  "suspending  bond"  but  I  merely  say  if  the  action  is  suspended,  then  any 
collateral  action  based  thereon  shall  also  be  suspended. 

I  fully  agree  with  the  views  expressed  by  the  gentleman  from  Richmond  (Mr.  Mere- 
dith) and  the  gentleman  from  Rockbridge  (Mr.  Anderson)  that  that  would  be  the  effect 
of  the  provision  as  it  stands  now;  but  out  of  abundant  caution,  and  to  put  it  beyond 
all  peradventure  and  prevent  any  injury  being  done  to  anybody,  your  committee  is  per- 
fectly willing  to  recommend  and  do  recommend,  that  this  amendment  be  adopted  in 
the  form  in  which  we  have  just  read  it. 

I  trust  it  may  be  the  pleasure  of  the  Convention  to  adopt  it  in  that  form. 
Mr.  Thom:    Mr.  Chairman,  I  want  to  take  advantage  of  this  opportunity  to  say  a 
few  words  of  a  personal  nature. 

I  am  doing  the  best  I  can  to  perfect  into  an  instrument  of  justice,  as  far  as  it  may 
be  so  perfected,  the  report  of  this  committee.  I  am  not  attempting  to  destroy  the  prin- 
ciple which  I  believe,  as  I  read  the  sentiment  of  this  Convention,  they  have  or  will  soon 
establish.  Every  member  of  this  Convention  realizes  that  I  am  opposed  to  the  justice 
of  that  principle;  but  I  believe  I  know  at  what  time  it  is  proper  to  cease  factious  ob- 
jection. In  none  of  the  amendments  which  I  am  proposing  here  am  I  prompted  by  any 
factious  opposition  to  the  principle  which  I  now  believe  to  be  now  uncontroverted,  so 
far  as  the  prevailing  opinion  of  this  Convention  goes.  My  effort  is  to  try  and  make  that 
unjust  principle,  as  I  consider  it,  work  with  as  little  injustice  as  possible  in  its  prac- 
tical operation.    To  do  that  I  am  after  practical  results. 

I  shall  not  adhere  to  any  preconceived  views,  and  I  shall  accept  the  best  that  I  can 
get,  with  the  idea  of  doing  that  much  good  for  the  people  of  Virginia,  whom  I  in  part, 
represent,  according  to  my  idea  of  what  is  best  for  the  people.  While  I  am  confident 
that  this  amendment  does  not  go  to  the  extent  it  ought  to  go,  I  do  not  believe,  in  the 
present  temper  of  this  body,  I  can  get  more  than  is  suggested  by  the  chairman  of  the 
committee,  and  with  that  as  the  moving  principle  upon  which  I  am  acting  I  shall  with- 
draw my  amendment  and  accept  what  the  committee  now  offer. 

The  Chairman:    The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Augusta  (Mr.  Braxton). 
The  amendment  was  agreed  to. 

The  Chairman:    There  is  a  motion  to  strike  out  by  the  gentleman  from  Roanoke. 

Mr.  Robertson:    I  withdraw  any  m.otions  that  I  have  made  before  this  body. 

Mr.  Braxton:  In  sub-section  E,  line  136,  I  observe  that  the  word  "rates"  has  been 
omitted.  I  ask  that  it  be  inserted  after  the  word  "  the  "  and  before  the  word  "  charges," 
so  that  it  will  read:    "affecting  the  rates,,  charges,  or  classifications  of  traffic." 

The  Chairman:  That  will  be  taken  as  the  sense  of  the  committee  unless  there  is 
objection. 

Mr.  Barbour:  Mr.  Chairman,  before  we  proceed  to  the  consideration  of  the  next 
section  I  would  like  to  ask  the  chairman  of  the  committee  if  the  word  "  rates  "  should 
not  be  inserted  in  line  226  of  sub-section  H. 

Mr.  Braxton:    It  was  inserted  in  a  previous  amendment. 

The  Chairman:    The  Secretary  will  read  sub-section  I. 

I.  The  said  commission  shall  annually  make  reports  to  the  Governor  of  its  pro- 
ceedings, in  which  reports  it  shall  recommend  from  time  to  time  such  new  or  additional 
legislation  in  reference  to  its  own  powers  or  duties  or  to  the  creation,  supervision,  regu- 
lation or  control  of  corporations,  or  to  the  subject  of  taxation,  as  the  commission  may 
deem  wise  or  expedient  or  which  may  be  required  by  law. 


DEBATES  OE  THE  COXSTITUTIOXAT  COXVEXTIOX  OE  VIEGIXIA. 


2501 


The  Chairman:  Are  there  any  amendments  to  sub-section  I?  If  not  the  Secretary 
will  read  sub-section  K. 

K.  The  Board  of  Public  Works  and  the  office  of  Railroad  Commissioner,  as  they 
now  exist,  are  hereby  abolished:  and  all  books,  papers  and  documents  pertaining  thereto 
shall  be  forthwith  transferred  to,  and  hereafter  become  a  part  of  the  records  of,  the 
office  of  the  said  State  Corporation  Commission. 

The  Chairman:  Are  there  any  amendments  to  sub-section  K?  If  not  the  Secretary 
will  read  sub-section  L. 

L.  After  the  first  day  of  January,,  1905,  the  General  Assembly,  upon  the  recom- 
mendation of  the  said  commission,  may  from  time  to  time,  by  law,  amend  sub-sections 
D,  E,  F,  G,  H  and  I  of  this  section,  of  any  of  them,  or  any  such  amendment  thereof: 
Provided,  that  no  amendment  made  under  authority  of  this  sub-section  shall  be  incon- 
sistent with  the  provisions  of  any  part  of  this  Constitution  other  than  the  sub-sections 
last  above  named. 

Mr.  Thorn:  I  move  to  strike  out  in  line  244  the  words  "upon  the  recommendation 
of  the  said  commission,"  so  that  it  will  read:  "After  the  first  day  of  January,  1905, 
the  General  Assembly  may,  from  time  to  time,  amend  sub-sections,  fee. 

As  the  sub-section  now  stands  it  ties  the  hands  of  the  General  Assembly  as  to  the 
amendment  of  any  of  these  matters  relating  to  procedure  unless  the  commission  agrees 
to  it.  Here  we  have  the  representatives  of  the  people,  in  General  Assembly  convened, 
absolutely  dependent  upon  the  recommendation  of  the  commission  before  they  can  take 
a  step  in  the  direction  of  amending  the  method  of  procedure  before  that  commission. 
I  think  that  is  an  injudicious  limitation  upon  the  power  of  the  people  through  their 
General  Assembly.  It  is  putting  the  power  of  the  State  too  much  in  the  hands  of  this 
commission,  even  tmder  the  theory  underlying  this  article. 

I  therefore  move  to  stril^e  out  these  words. 

Mr.  Braxton:  I  trust  this  amendment  will  not  be  adopted.  It  is  more  important, 
as  we  think,  than,  at  first  blush,  it  might  appear.  As  I  tried  to  explain  to  the  com- 
mittee the  other  day,  this  sub-section  L  does  not  curtail  the  powers  of  the  General  As- 
sembly at  all.  It  enlarges  the  power  of  the  General  Assembly.  It  enables  it  to  amend 
the  Constitution  in  a  way  which,  but  for  this  sub-section,  it  could  not  amend  it.  The 
only  way  in  which  the  Constitution  can  ordinarily  be  amended  is  by  a  vote  of  two  con- 
secutive Legislatures,  supplemented  by  the  vote  of  the  people.  The  effect  of  sub-sec- 
tion L  is  to  substitute  for  the  vote  of  the  second  Legislature  and  the  vote  of  the  people 
the  recommendation  of  the  commission,  so  that  instead  of  having  the  first  vote  of  the 
Legislature  substituted  by  the  vote  of  the  second  Legislature  and  the  vote  of  the  people, 
we  have  it  simply  supplemented  by  the  recommendation  of  the  commission.  Your  com- 
mittee thought  it  unwise  to  permit  the  Legislature,  hy  a  simple  vote,  without  the  con- 
currence either  of  the  commission  or  of  any  subsequent  Legislature  or  the  vote  of  the 
people,  to  amend  this  Constitution.  The  reason  we  thought  so  was  this:  As  the  com- 
mittee must  have  seen,  there  are  numerous  provisions  in  these  purely  administrative 
sections  which  are  of  vital  importance  to  the  efficient  existence  of  this  commission. 
There  are  almost  an  indefinite  number  of  these  modifications  that  could  be  made  to 
these  provisions  which  are  perfectly  innocent  and  harmless  on  their  face,  but  which 
would  have  the  effect  of  completely  and  absolutely  emasculating  the  commission.  If 
the  Legislature,  through  ignoranc  of  the  practical  and  technical  character  of  the  pro- 
ceedings, through  thoughtlessness,  through  negligence,  or  through  carelessness  could 
by  hook  or  by  crook,  without  any  check  upon  them,  modify  these  administrative  sec- 
tions in  ways  which  would  seem  on  their  face  to  be  not  only  innocent,  but  absolutely 
commendatory,  the  entire  fabric  might  fall.  Suppose  it  was  provided  that  appeals  cotild 
be  taken  to  the  Supreme  Court  of  Appeals  from  decisions  affecting  rates  and  that  the  ap- 
peal should  operate  as  a  supersedeas  without  giving  a  bond.  What  would  be  the  effect? 
You  would  have  a  commission  that  would  practically  not  be  worth  a  cent,  because 


2502 


DEBATES  OF  THE  CONSTITUTIO^^'AL  CONVENTIOJT  OF  VIRGINIA. 


every  single  decision  that  was  rendered  would  be  appealed  from,  and  the  railroad  would 
go  on  charging  its  own  rates  and  making  money  thereby,  although  it  might  be  certain 
that  the  appeal  would  be  decided  adversely.  I  might  mention  half  a  dozen  other  pro- 
visions that  would  enable  the  work  of  this  commission  to  be  interfered  with  and  para- 
lyzed by  the  interference  of  the  inferior  courts  throughout  the  Commonwealth.  A  great 
many  modifications  which  the  Legislature  might  be  induced  to  pass,  under  these  ad- 
ministrative sections  would  as  completely  em^asculate  and  destroy  this  commission  as 
if  the  whole  thing  had  been  wiped  out  of  existence.  We  would  not  provide  any  special 
method  of  ameding  the  Constitution  other  than  the  general  method  of  amending  by 
two  votes  of  the  Legislature  and  the  vote  of  the  people,  but  for  the  fact  that  these  ad- 
ministrative sections  entering,  necessarily  into  detail,  might  prove,  in  practice,  to  be 
inefficient  in  some  one  or  more  particulars;  therefore  we  wish  such  things  to  be 
remedied,  so  far  as  it  makes  the  commission  a  more  efficient  body.  We  do  not  wish  to 
put  into  the  hands  of  the  Legislature  the  power  to  amend  it  in  such  a  way  as  to  make 
the  commission  a  less  efficient  body  or  absolutely  destroy  it.  The  commission  cannot 
increase  its  own  power  because  it  does  not  make  any  difference  what  recommendations 
it  makes,  if  the  Legislature  does  not  endorse  them  they  will  not  be  adopted;  nor  can 
the  Legislature  emasculate  the  power  of  the  commission,  because  if  modifications  of 
that  character  were  proposed,  the  commission  would  not  recommend  them.  The  com- 
mission and  the  Legislature  are  checks  upon  each  other,  so  far  as  the  correction  of 
any  inequalities  or  any  undesirable  parts  of  these  administrative  sections  are  concerned. 

In  the  course  of  practical  experience,  at  the  end  of  two  years,  which  is  just  as  soon 
as  any  statute  could  be  amended,  if  the  commission  finds  that  any  of  these  administra- 
tive provisions  are  unwise  and  inefficient  it  can  then  recommend  proper  amendments. 
Ir  is  infinitely  better  acquainted,  by  reason  of  its  experience,  with  the  practical  work- 
ing than  any  Legislature  could  possibly  be.  It  will  certainly  recommend  every  provision 
that  can  make  it  more  efficient.  If  it  undertakes  to  make  recommendations  that  would 
aggrandize  its  power  too  far,  the  Legislature  checks  it.  If  the  Legislature  wants  to 
make  provisions  that  would  curtail  and  render  it  inefficient,  the  commission  checks  it. 
If  it  is  a  really  mertitorious  amendment  you  can  depend  upon  it  that  both  the  commission 
and  the  Legislature  will  unite  in  recommending  it,  and  when  they  do  so  unite,  it  can 
be  amended  without  waiting  for  the  slow  process  of  ordinary  amendment.  This  how- 
ever, does  not  prevent  the  method  of  ordinary  amendment,  but  supplements  it.  If  it 
should  turn  out  that  there  is  a  provision  v/hich  the  people  think  should  be  amended 
which  the  commission  refuses  to  recommend,  there  still  remains  the  regular  method  of 
amendment. 

Why  not  say  that,  in  matters  of  appeal,  and  in  matters  of  detail  of  administration, 
we  will  trust  the  people  whose  servants  we  are;  we  will  permit  them  through  their 
Legislature,  to  amend  or  change  these  mere  administrative  matters?  There  may  be, 
perhaps,  some  underlying  fallacy  in  the  proposition  which  I  am  presenting;  but  to  my 
mind  if  it  is  based  on  sound  principles.,  this  means  as  the  gentlemen  of  this  Convention 
have  heard  from  time  to  time — the  failure  of  representative  government,  if  the  people 
of  Virginia,  in  a  mere  matter  of  statute  law  in  their  Constitution,  cannot  be  trusted 
to  perfect  the  various  details  of  its  administration. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Norfolk  (Mr.  Thorn). 

Mr.  Braxton :  Mr.  Chairman,  the  other  day  an  amendment  to  sub-section  D,  between 
lines  57  and  58,  was  suggested  by  the  gentleman  from  Prince  William  (Mr.  Thornton). 
The  substance  of  it  was  adopted,  but  the  language  we  did  not  have  time  to  put  in  as 
good  shape  as  we  desire  to  put  it  in;  and  your  committee  offer  the  following  as  the 
proper  language  in  which  to  embody  it. 

What  we  now  propose  does  not  change  in  substance  what  we  proposed  before,  but 
it  puts  it  in  better  language,  I  think.    I  offer  in  lieu  of  that  the  following: 

i 

Before  the  said  commission  shall  prescribe  or  fix  any  rate,  charge  or  classification 

! 


DEBATES  OF  TEIE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA.  2-503 


of  traffic,  and  before  it  shall  make  any  order,  rule,  reflation  or  requirement  directed 
against  any  one  or  more  companies  by  name,  the  company  or  companies  to  be  affected 
by  such  rate,  charge,  classification,  order,  rule,  regulation  or  requirement  shall  first  be 
given  by  the  said  commission  at  least  ten  days'  notice  of  the  time  and  place  ^-hen  and 
where  the  contemplated  action  of  the  commission  in  the  premises  will  be  considered 
and  disposed  of  b3'  the  said  commission,  and  shall  be  afforded  reasonable  opportunity 
to  introduce  evidence  and  to  be  heard  thereon,  to  the  end  that  justice  may  be  done,  and 
shall  have  process  to  enforce  the  attendance  of  witnesses;  and  before  the  said  commis- 
sion shall  adopt  or  prescribe  SlUv  general  order,  rule,  regulation  or  requirement,  not 
directed  against  any  specific  company  or  companies  by  name,  the  contemplated  general 
order,  rule,  regulation  or  requirement  shall  first  be  published  at  length  not  less  than 
once  a  week  for  four  consecutive  weeks  in  one  or  more  of  the  newspapers  of  general 
circulation  published  in  the  citj^  of  Richmond,  Va.,  together  with  notice  of  time  and 
place,  when  and  where  the  commission  will  hear  any  objections  vrhich  may  be  urged 
by  any  persons  interested  against  the  adoption  of  the  proposed  order,  rule,  regulation  or 
requirement;  and  after  the  adoption  by  the  commission  of  any  such  general  order,  rule, 
regulation  or  requirement,  the  same  shall  be  published  for  the  time  and  in  the  manner 
above  specified  before  it  shall  go  into  effect,  and  shall  also,  as  long  as  it  remains  in 
force,  be  published  in  each  subsequent  annual  report  of  the  commission. 

Mr.  Barbour:  Before  that  amendment  is  voted  on,  I  wish  to  ask  the  chairman  this 
question;  Suppose  as  a  result  of  this  hearing  the  commission  thinks  there  should  be 
some  modification  in  the  order  as  originally  proposed  by  him;  would  that  necessitate 
another  sixty  daj's  delay? 

Mr.  Braxton:  I  imagine  it  would,  sir.  I  do  not  think  it  would  amount  to  a  prac- 
tical difficulty,  for  the  reason  that  I  conceive  there  would  be  very  few  general  rules 
or  regulations  adopted  by  the  commission.  Almost  every  general  rule  and  regulation 
ib  of  such  a  character  that  it  could  and  probably  would  be  adopted  by  the  Legislature, 
and  it  would  be  very  rarely  that  such  a  thing  would  occur.  A  delay  of  sixty  days,  I 
think,  would  not  be  a  matter  of  any  moment.  If  it  was  anything  fixing  rates  that  would 
have  to  be  directed  against  the  company,  whether  it  is  a  general  rate  or  a  special  rate. 
If  it  was  an  order  directed  against  any  particular  company,  it  would  have  to  be  served 
upon  the  company,  and  it  would  not  need  to  be  published.  It  is  only  these  general  regu- 
lations that  have  to  be  published  and  which  would  occasion  the  delay.  I  think,  however, 
it  would  be  of  such  rare  occurrence  that  a  delay  of  sixty  days,  as  compared  with  a 
delay  of  two  years  if  they  had  to  wait  for  the  Legislature,  would  not  be  very  material. 

Mr.  Withers:  Suppose  an  order  should  be  issued  referring  to  a  certain  class  of 
rates,  would  not  that  be  a  general  regulation? 

:^Jr.  Braxton:  Xo,  sir:  as  to  all  rates  and  classifications,  as  I  understand,  the  com- 
pany must  be  summoned  by  name. 

Mr.  Withers:  Suppose  a  certain  freight  rate  were  to  be  put  into  effect  for  a  cer- 
tain time  as  to  all  railroads;  would  not  that  be  a  general  regulation? 

Mr.  Braxton:  It  would  be  a  general  regulation,  but  the  language  of  it  is  this:  "  Be- 
fore the  said  commission  shall  prescribe  or  fix  a  rate,  charge  or  classification."  "^Tiether 
general  or  special,  the  company  must  be  summoned.  I  do  not  conceive  that  the  com- 
mission would  prescribe  any  general  rate.  Rates,  as  I  understand,  must  be^adopted 
and  suited  to  the  company. 

Mr.  Withers:    That  is  exactly  the  reverse  of  my  understanding. 

Mr.  Braxton:  Unless  you  are  going  to  fix  maximum  rates,  which  amount  to  nothing. 
If  the  commission  should  say  that  the  rate  on  freight  from  Richmond  to  Hanover  Court- 
house shall  be  so  much  per  hundred,  how  could  that  possibly  apply  to  any  other  road  but 
the  road  which  ran  from  Richmond  to  Hanover  Courthouse?  We  cannot  make  it  general. 
You  must  make  it  specific,  unless  you  want  to  make  some  general  maximum  rate,  which 
I  conceive  the  commission  will  never  make,  because  it  is  utterly  useless  and  worthless 
to  make  it. 

Mr.  Withers:  Suppose  the  commission  issued  a  general  regulation  as  to  all  rail- 
roads with  reference  to  cotton  rates,  to  take  effect  by  a  certain  time;  is  that  such  regu- 
lation as  v.-QuId  come  under  the  amendment? 


2504  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Braxton:  In  that  event  it  would  have  to  summon  every  road  which  hauls 
cotton — a  thing  which  I  think  would  not  be  at  all  difficult  to  do. 

Mr.  Wiithers:  I  take  cotton  because  it  is  not  a  difficult  thing  in  Virginia.  There 
are  some  things  that  are  difficult.  A  sixty  day  delay  on  cotton  and  cotton  seed  would 
practically  destroy  its  value. 

Mr.  Braxton:  I  wish  to  call  attention  to  the  fact  that  cotton  seed  or  anything  that 
concerns  rates,  would  not  come  under  the  head  of  the  sixty  day  provision,  but  anything 
which  affects  rates,  charges  or  classification  of  traffic  would  be  served  upon  the  com- 
pany personally;  and  the  publication  for  sixty  days  does  not  apply  to  it,  but  applies 
only  to  those  general  rules  and  regulations  not  addressed  to  any  company.  The  com- 
mission could  get  over  it  immediately  by  simply  directing  it  against  these  roads  that 
haul  cotton,  and  summoning  them  to  be  heard.  Ten  days  would  suffice  for  it.  It  is 
only  when  the  regulation  is  of  such  a  character  that  in  the  opinion  of  the  commission 
it  cannot  be  traced  to  any  particular  road  that,  in  lieu  of  summoning  the  road,  they 
will  have  to  make  the  sixty-day  publication;  but  if,  in  the  opinion  of  the  commission, 
the  purpose  can  be  accomplished  by  naming  in  the  order  any  one  or  more  roads,  they 
can  do  so,  and  summon  the  road  or  roads  and  in  ten  days  the  whole  matter  can  be 
accomplished. 

I  understand  there  are  but  seven  roads,  in  Virginia  and  if  it  were  desirable  in  any 
question  of  rates,  they  could  name  all  seven  of  them,  if  it  were  possible  for  all  of  them 
to  haul  cotton,  even  the  Chesapeake  and  Ohio,  which  I  understand  does  not  haul  cotton, 
or  certainly  not  to  any  extent.  I  do  not  know  whether  it  hauls  it  at  all;  but  the  com- 
mission could,  out  of  abundance  of  caution,  name  all  of  them  in  the  order  and  give 
them  ten  days'  notice  to  be  heard  against  it,  and  it  would  go  into  immediate  effect. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Augusta  (Mr.  Braxton). 

The  amendment  was  agreed  to. 

Mr.  Braxton:  In  line  91  of  Section  4  I  move  that  after  the  word  "to"  the  words 
"  introduce  evidence,  and  to  "  be  inserted,  so  that  it  will  read  "  and  afford  an  oppor- 
tunity to  introduce  evidence,  and  to  be  heard." 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  Chairman,  In  line  105,  there  was  an  amendment  introduced  the 
other  day,  beginning  with  the  words  "  within  such  reasonable  time,  not  less  than  ten 
days  as  shall  be  fixed." 

In  view  of  the  fact  that  some  of  these  orders,  if  they  are  general  orders,  cannot 
go  into  effect  until  they  have  been  published  for  thirty  days,  I  think  it  is  proper  to  in- 
sert, before  the  beginning  of  the  amendment  offered  the  other  day,  these  words,  "  after 
it  goes  into  effect,  and,"  so  it  would  read: 

Any  corporation  failing  or  refusing  to  obey  any  valid  order  or  requirement  of  the 
said  commission,  after  it  goes  into  effect,  and  within  such  reasonable  time,  not  less  than 
ten  days,  as  may  be  fixed  by  the  order  or  requirement. 

Mr.  Thorn:  Ought  not  that  to  be  "within  such  reasonable  time  after  it  goes  into 
effect? 

Mr.  Braxton:    After  it  goes  into  effect,  and  within  such  reasonable  time. 
The  Chairman:    The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Augusta  (Mr.  Braxton). 
The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  Chairman,  at  the  end  of  line  113,  page  10,  I  ask  that  these  words 
be  inserted: 

Provided,  that  should  the  operation  of  such  order  or  requirement  be  suspended 
pending  an  appeal  therefrom,  the  period  of  such  suspension  shall  not  be  computed 
against  the  company  in  the  matter  of  its  liability  to  fines  or  penalties. 

That  is  to  meet  the  view  that  was  discussed  yesterday  that,  if  an  order  is  made 


DEBATES  OE  THE  COXSTITUTTOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2505 


by  the  commission  and  is  appealed  from  and  suspended,  possibly  the  company  might 
remain  liable  to  a  penalty  for  failing  to  obey  the  suspended  order.  Your  committee 
does  not  think  there  is  any  danger  in  that,  but  out  of  abundance  of  caution  to  set  it 
entirely  at  rest  we  offer  this  amendment  so  that  the  section  would  then  read: 

And  each  day's  continuance  of  such  failure  or  refusal  after  due  service  upon  said 
corporation  of  the  order  or  requirement  of  the  said  commission  in  question  shall  be  a 
separate  offense;  provided,  that  should  the  operation  of  such  order  or  requirement  be 
suspended  pending  an  appeal  therefor,  the  period  of  such  suspension  shall  be  computed 
against  the  company  in  the  matter  of  its  liability  to  fines  or  penalties. 

I  take  it  nohody  should  differ  with  us  as  to  the  fact  that  that  ought  to  be  the  rule. 
The  amendment  was  agreed  to. 

Mr.  Braxton:  In  line  147,  after  the  word  "appeal,"  the  committee  thought  it  would 
make  the  matter  a  little  plainer  to  insert  there  these  words:  "In  excess  of  that  fixed 
by  the  decision  of  the  court  on  appeal,"  so  that  it  will  read: 

That,  in  case  of  a  suspending  bond,  it  shall  be  in  sufficient  amount  and  security  to 
Insure  the  prompt  refunding  by  the  appealing  corporation  to  the  parties  entitled  thereto 
of  all  over-charges  on  the  rates,  charges  or  classification  of  traffic  appealed  from  that 
such  company  may  collect  or  receive  pending  said  appeal  in  excess  of  that  fixed  by  the 
decision  of  the  court  on  appeal. 

I 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  Chairman,  in  line  1S8,  page  14,  after  the  word  "appeal"  we  pro- 
pose to  put  a  semi-colon,  strike  out  the  word  "'and,"  and  insert  these  words:  "On  all 
appeals  taken  from  said  commission  the  Appellate  Court  shall  have  jurisdiction  to  con- 
sider and  determine  the  reasonableness  and  justness  of  the  action  of  the  commission 
appealed  from,  as  well  as  any  other  matters  arising  under  such  appeal;  provided,  how- 
ever, that."  Then  it  goes  on:  "The  action  of  the  commission  appealed  from  shall  be 
regarded  as  prima  facie  just,  reasonable  and  correct,"  etc. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  Chairman,  just  a  few  lines  lower  than  that,  in  line  194,  after 
the  word  "court,"  I  suggest  we  insert  these  words:  "'Together  with  such  additional 
evidence  as  may  be  tendered  before  the  commission  by  any  party  in  interest."  That 
has  reference  to  the  remanding  of  a  cause  back  for  further  proceeding,  so  that  it  will 
read: 

But  the  court  may,  when  it  deems  necessary  in  the  interest  of  justice,  remand  to 
the  said  commission  any  case  pending  on  appeal  and  require  the  same  to  be  further 
investigated  by  the  commission  and  reported  upon  to  the  court,  together  with  such  addi- 
tional evidence  as  may  be  tendered  before  the  commission  by  any  party  in  interest 
before  the  appeal  is  finally  decided. 

The  amendment  was  agreed  to.  ' 

Mr.  Braxton:  In  sub-section  F  the  committee  has  under  advisement  an  amendment 
in  the  shape  of  an  insertion  of  a  few  words  there  with  reference  to  the  certification 
of  the  facts  for  the  evidence;  but  the  committee  would  like  to  take  a  little  further  time 
for  consideration.  They  ask  that  that  be  passed  by  for  the  present,  but  they  will  have 
the  matter  before  the  Committee  of  the  T\Tiole  to-morrow. 

The  Chairman:  That  will  be  taken  as  a  sense  of  the  committee,  without  obiectloa. 
The  chair  hears  none. 

Mr.  Braxton  I  move  that  the  committee  proceed  to  the  consideration  of  Section  5 
of  the  report. 

The  Chairman:  That  will  be  taken  as  the  sense  of  the  committee  unless  there  he 
objection.   The  Secretary  will  read  Section  5. 

Sec.  5.  Provision  shall  be  made  by  general  laws  for  the  payment  of  a  fee  to  the 
15S — Const.  Deb. 


2506  DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIJ^IA. 

Commonwealth  by  every  domestic  corporation,  upon  the  granting,  amendment,  or 
extension  of  its  charter,  and  by  every  foreign  corporation  upon  obtaining  a  license  to 
do  business  in  this  State,  as  specified  in  this  section;  and  also  for  the  payment,  by  every 
corporation  hereafter  doing  business  in  this  State,  of  an  annual  fee  of  not  less  than 
$5  upon  its  charter  or  license  to  do  business,  and  for  the  making  by  every  such  corpora- 
tion (at  the  same  time,  and  in  connection  with  the  payment  of  such  annual  fee)  of 
such  report  to  the  State  corporation  commission  of  the  status,  business,  or  condition 
of  such  corporation  as  the  General  Assembly  may  prescribe.  No  foreign  corporation 
shall  have  authority  to  do  business  in  this  State,  unless  and  until  it  shall  have  first 
obtained  from  the  State  corporation  commission  a  license  to  do  business  in  this  State, 
upon  such  terms  and  conditions  as  may  be  prescribed  by  law.  The  failure  by  any  cor- 
poration for  two  successive  years  to  pay  its  said  annual  franchise  or  license  fee,  or  to 
make  its  said  annual  reports  in  connection  therewith,  shall,  when  such  failure  shall 
have  continued  for  ninety  days  after  the  expiration  of  the  said  two  years,  ipso  facto 
forfeit  the  charter,  or  license,  of  such  corporation,  as  the  case  may  be,  and  the  General 
Assembly  shall  provide  additional  and  suitable  penalties  for  the  failure  of  any  corpora- 
tion to  promptly  comply  with  the  requirements  of  this  section,  or  of  any  laws  passed 
in  pursuance  thereof.  The  State  corporation  commission  shall  require  all  corporations 
to  comply  promptly  with  the  requirements  of  this  section,  and  of  the  laws  passed  in 
pursuance  thereof,  by  enforcing  in  the  manner  hereinbefore  authorized,  such  fines  and 
penalties  against  the  delinquent  company  as  may  be  provided  for  or  authorized  by  this 
article. 

The  Chairman:    Are  there  any  amendments  to  be  offered  to  Section  lo? 

Mr.  O'Flaherty:  I  desire  to  offer  a  little  amendment  here,  with  fear  and  trembling. 
I  hope  it  will  be  considered  and  made  unanimous:  After  the  word"  State,"  in  line  7, 
page  16,  insert  the  following:    "  Except  educational,  religious,  or  charitable  institutions." 

Mr.  Chairman,  my  object  in  offering  that  is  to  exempt  these  institutions  from  the 
payment  of  the  annual  fee  of  five  dollars.  It  is  unnecessary  for  me  to  discuss  it  at  any 
length.  I  do  not  think  educational  institutions  ought  to  be  required  to  pay  an  annual 
fee  of  five  dollars.  The  gentleman  from  Alleghany  (Mr.  Anderson)  calls  my  attention 
to  a  section  in  the  beginning  of  the  report.  Of  course,  if  these  institutions  are  excepted, 
I  do  not  want  to  say  any  more  about  it.  I  will  ask  the  Chairman  if  I  am  wrong  about 
that. 

Mr.  Braxton:  In  Section  1  the  term  "corporation,"  or  "company,"  is  defined  in 
this  way:  "Shall  be  construed  to  include  all  trusts,  associations  and  joint  stock  com- 
panies, etc.,  but  to  exclude  all  municipal  corporations  or  public  eleemosynary  institu- 
tions, asylums  or  prisons  owned  or  controlled  by  the  State."  If  it  is  a  public  institution, 
it  is  excluded,  but  if  it  is  private  institution  it  is  included. 

Mr.  O'Flaherty:  I  do  not  think  any  educational  institution  that  is  run  for  the  pur- 
pose of  educating  the  youth  of  this  land  ought  to  be  so  taxed.  I  do  not  think  charitable 
institutions  ought  to  be  so  taxed,  nor  do  I  think  a  religious  institution,  such  as  a  mission- 
ary society,  or  any  corporation  of  that  character  ought  to  be  so  taxed.  For  instance, 
we  have  in  our  town  a'  school  that  is  a  chartered  company.  There  are  a  hundred  and 
fifty  young  men  and  women  being  educated  there.  Under  the  law  as  it  now  is,  that 
institution  is  not  subject  to  any  tax  on  the  charter.  I  suppose  the  law  is  meant  to  be 
continued  in  regard  to  the  granting  of  charters  of  that  character.  Now,  if  we  are  go- 
ing to  put  an  annual  tax  of  five  dollars  upon  an  institution  of  that  kind,  it  is  that  much 
detriment  and  that  much  of  a  hindrance  to  education,  and  I  hope  we  will  not  do  it. 

The  government  of  the  United  States,  under  its  postal  laws,  encourages  educational 
institutions  by  permitting  those  people  to  send  out  through  the  mails  papers"  that  are 
run  exclusively  for  the  benefit  of  regularly  incorporated  institutions.  This  is  done  to 
encourage  the  educational  interests  of  the  country.  It  does  seem  to  me  we  ought  to 
be  as  magnanimous  as  the  United  States  Government.  If  the  educational  conditions 
of  the  State  of  Virginia  are  as  they  are  portrayed  by  some  of  the  educators  of  Virginia 
at  this  time,  it  would  seem  to  me  we  ought  not  to  put  a  premium  on  ignorance  and  tax 
on  educational  institutions. 

This  is  a  matter  that  must  address  itself,  it  seems  to  me  to  every  mrmber  of  this 
committee,  and  I  do  hope  it  will  be  the  will  of  the  committee  to  make  an  exception  in 


DEBATES  OE  TKE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


this  case.  I  know  it  is  almost  treason  to  offer  any  amendments  to  this  corporation  bill, 
and,  as  I  said,  I  do  it  vrith  fear  and  trembling.  I  almost  come  and  beg  you,  in  the  inter- 
ests of  education,  religion  and  charity,  the  highest  reasons  of  vrhich  I  knovr,  to  vote 
lor  this  amendment. 

Mr.  Summers:  I  hope,  Mr.  Chairman,  that  the  chairman  of  the  committee  vrill 
at  least  accept  the  portion  of  the  amendment  offered  by  my  friend  from  vrarren  (Mr. 
O'Flaherty)  as  regards  charity.  "We  on  this  side  of  the  house  have  stuck  to  him  like 
a.  brother,  and  we  want  to  do  so  right  through  this  matter.  I  hope  he  will  accept  of 
this  amendment,  and  if  he  does  not  accept  it,  and  you  gentlemen  over  there  who  are 
^fighting  him  so  hard  will  join  with  us,  we  will  beat  him  anyhow. 

Mr.  Braxton:  Mr.  Chairman,  it  seems  to  me  the  maxim  "  de  minimus  non  curat 
'lex "  should  apply  here.  The  utmost  that  can  be  done  is  to  save  these  corporations 
five  dollars  a  year.  There  are  a  very  few  of  them,  and  inasmuch  as  it  was,  in  the  opin- 
ion of  the  committee,  the  duty  of  the  State,  when  it  has  granted  a  charter  to  a  corpora- 
tion, to  look  after  it  to  see  whether  the  charter  is  being  kept  up,  whether  it  is  abandoned 
or  not,  to  ask  it  to  pay  So,  to  see  whether  it  makes  its  report,  showing  whether  it  has 
^continued  in  existence  or  not,  it  is  a  very  small  thing  to  ask  it  of  them:  that  it  would 
not  be  a  burden  on  the  biggest  of  them,  and  would  introduce  an  exception  here  which 
we  think  would  mar  the  report.  We  do  not  see  any  occasion  for  it,  because  the  damage 
that  might  be  done  by  it  is  very  small.  There  are  very  fevr  of  them,  and  it  is  a  very 
small  tax. 

Mr.  Meredith:  I  shall  vote  for  the  amendment,  Mr.  Chairman.  It  is  a  small  matter, 
li:  is  true,  but  I  do  not  see  the  necessity  of  submitting  to  this  expense  these  educational 
institutions  and  charitable  institutions  that  have  no  stock,  that  receive  no  dividends,  that 
are  not  interested  in  any  financial  way  in  the  running  of  the  corporation,  but  do  it  simply 
for  matters  of  public  benefit.  It  is  a  small  expense,  it  is  true,  but  I  think  the3-  should  not 
"be"  subjected  to  it,  and  that  they  should  not  be  subjected  to  maldng  annual  reports.  I 
iiope  the  chairman  of  the  committee  will  see  fit  to  accept  the  amendment.  I  cannot  see 
the  necessity  of  subjecting  these  people  to  the  irouble  of  making  these  reports,  much 
less  to  the  paying  of  the  small  license  fee.  Xo  benefit  can  come  to  the  State  by  it.  The 
State  does  not  propose  to  supervise  them,  and  it  is  not  for  the  purpose  of  protecting  any- 
body. 

Mr.  James  W.  Gordon:  Is  it  not  true  that  the  report  of  the  Committee  on  Taxation 
and  Finance  contemplates  that  this  very  kind  of  institution  may  have  considerable 
property  which  would  not  be  exempt  from  taxation  under  the  provisions  of  that  report; 
and  do  you  not  think  it  would  be  a  wise  thing  for  the  State  to  keep  track  of  the  property 
of  these  corporations  for  the  purpose  of  placing  its  hands  upon  any  of  their  property  that 
might  be  lawfully  subject  to  taxation? 

I\Ir.  Meredith:  I  do  not  remember  now  exactly  the  language  of  the  report  of  the 
Committee  on  Finance  and  Taxation,  but  my  recollection  is  that  it  exempts  all  endow- 
ments of  religious  and  educational  institutions  except  such  as  may  be  invested  in  real 
estate.  I  am  speaking  now  simply  from  recollection.  I  do  not  see  any  advantage  to 
come  from  putting  these  institutions  to  the  trotiT^le  and  expense  proposed.  It  is  a  slight 
expense,  it  is  true,  but  still  no  burden  ought  to  be  put  upon  them. 

]Mr.  Braxton;  I  think  my  friend  from  Richmond  is  probably  not  aware  of  the  fact 
that  these  so-called  educational  institutions  and  so-called  charitable  institutions,  without 
capital  stock,  are  not  infrequently  made  a  cloak  for  the  operations  of  people  who  wish 
to  operate  under  and  by  virtue  of  them,  and  save  taxation.  A  case  of  this  sort  has  been 
brought  to  our  attention,  where  a  man  wished  to  run  a  boys'  school.  He  got  out  a 
charter  for  an  institution  which  had  no  capital  stock,  bought  property,  and  the  money 
they  wanted  to  put  in  was  put  in  in  the  shape  of  bonds  issued  by  this  company.  Then 
these  people  were  employed  as  the  principal  and  teachers  of  the  school  and  all  of  the 
profits  went  into  their  own  pockets,  in  the  shape  of  interest  on  their  loans  and  salaries 
as  teachers.    It  seems  to  me  that  in  order  to  keep  track  of  such  things,  with  a  view  of 


2508 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


taxing  just  such  corporations,  the  light  should  be  turned  on  them,  so  that  the  State  can 
know,  in  some  way,  whether  they  are  deserving  institutions  that  ought  not  to  be  taxed, 
and  some  sort  of  annual  report,  the  nature  of  which  is  left  to  the  Legislature,  should 
be  required  of  them,  and  that,  at  the  time  they  make  the  report,  this  small  annual  fee  of 
$5  should  be  paid. 

It  was  the  opinion  of  the  committee  that  this  would  be  such  a  light  burden  on  these 
institutions  that  none  of  them  would  feel  it,  and  yet  it  enables  the  State  to  get  the  in- 
formation which  my  excellent  friend  from  Richmond  knows,  from  his  service  on  the  Com- 
mittee on  Taxation,  is  the  greatest  stumbling  block  and  difficulty  the  State  has  to  meet 
in  dealing  intelligently  with  the  matter  of  taxation  and  the  regulation  of  these  corpora- 
tions. This  is  the  reason  the  committee  ftiought  it  would  be  well  to  put  in  this  pro- 
vision, especially  in  view  of  the  very  light  burden  imposed  upon  the  institutions  by  the 
payment  of  this  amount. 

Mr.  O'Flaherty:    I  want  to  be  excused  from  paying  this  tax. 

Mr.  Braxton:  Does,  the  gentleman  think  that  $5  is  an  unreasonable  fee  to  pay  for 
the  clerical  services  and  work  incident  to  seeing  that  the  report  is  made? 

Mr.  O'Flaherty:  I  think  anything  is  unreasonable  that  is  a  tax  upon  these  insti- 
tutions. Take  the  example  the  gentleman  gives  in  regard  to  an  educational  institution 
run  on  the  plan  he  has  mentioned.  Suppose  it  was  run  by  an  individual.  They  would 
pay  the  same  taxes  that  an  individual  would  pay.  They  would  pay  on  their  buildings 
and  mortgages  the  same  taxes  that  an  individual  would  pay.  I  see  no  reason  why  we 
should  tax  them  in  order  to  keep  track  of  them.  I  am  perfectly  willing  that  they  should 
make  a  report  but  I  do  not  think  we  ought  to  descend  into  this  small  matter  of  taxing 
these  people.  The  gentleman  has  invoked  the  maxim  of  law  "de  minimis  non  curat  lex." 
This  is  a  small  matter  which  the  law  ought  not  to  take  cognizance  of.  It  looks  to  me 
like  it  is  a  picayunish  thing  to  tax  these  people  for  the  clerical  work  incident  to  seeing 
that  the  report  is  made.  I  think  we  can  get  money  enough  to  run  these  offices  and  pay 
all  these  clerks  without  taxing  the  eleemosynary  and  educational  institutions.  There- 
fore I  hope  it  will  be  the  pleasure  of  this  committee  to  accept  this  amendment. 

Mr.  Meredith:  With  the  gentleman's  permission  i  would  like  to  add  to  the  amend- 
ment the  words  "not  run  for  private  profit." 

"Will  you  accept  that  amendment? 

Mr.  O'Flaherty:    Yes,  sir;  I  will  accept  that. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Warren  (Mr.  O'Flaherty). 

On  a  division  the  amendment  was  rejected;  there  being,  ayes  24,  noes  27. 

Mr.  Braxton:  In  line  22  of  Section  5,  the  committee  thinks  it  would  be  more  accu- 
rate to  strike  out  the  words:  "ipso  facto  forfeit"  and  to  insert  the  words  "operate  as  a 
revocation  and  annulment  of." 

The  amendment  was  agreed  to. 

The  President:    The  Secretary  will  read  Section  6. 

Sec.  6,  Any  corporation  heretofore  chartered  in  this  State  which  shall  hereafter  accept 
or  effect  any  amendment  or  extension  of  its  charter,  shall  be  conclusively  presumed  to 
have  thereby  surrendered  any  exemption  Irom.  taxation,  and  any  non-repealable  feature 
of  its  charter,  or  of  any  amendment  thereof,  and  all  other  special  or  exclusive  rights 
or  privileges  theretofore  granted  to  it  by  the  General  Assembly,  and  not  enjoyed  by 
other  corporations  of  a  similar  general  character,  and  to  have  thereby  agreed  to  there- 
after hold  its  charter  and  franchises,  and  all  amendments  thereof,  under  the  provisions 
and  subject  to  all  the  requirements,  terms,  and  conditions  of  this  Constitution,  and  of 
laws  hereafter  passed  in  pursuance  thereof,  so  far  as  the  same  may  be  made  applicable 
to  such  corporation. 

Mr.  Braxton:  In  line  6  of  Section  6,  I  move  to  strike  out  the  words:  "special  or'* 
so  that  it  will  read:    "All  other  exclusive  rights  or  privileges." 

Our  attention  has  been  called  to  the  fact  that  several  of  the  principal  railroads  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2509 


this  State  have  been  reorganized,  and  their  pr'esent  existence,  so  far  as  the  issuance  of 
their  stock  and  their  internal  organization  is  concerned,  is  based  upon  special  acts  pro- 
viding some  special  method  of  organization,  and  of  issuing  stock,  the  special  features  of 
it  being  no  interest  at  all  to  the  public.  We  thought  there  would  be  no  occasion  to  re- 
quire that  they  should  surrender  these  special  features,  provided  that  they  did  not 
amount  to  an  exemption  from  taxation  or  to  a  non-repealable  feature,  and  did  not  contain 
any  exclusive  rights.  For  that  reason  we  ask  that  the  words  "special  or"  should  be 
omitted,  so  that  whenever  a  company  heretofore  organized  desires  to  obtain  an  amend- 
ment to  its  charter  it  shall  only  be  required  to  surrender  any  exemption  from  taxation 
and  any  non-repealable  feature  of  its  charter  or  any  amendment  thereof,  and  all  ex- 
clusive rights  or  privileges  theretofore  granted. 
The  amendment  was  agreed  to. 

Mr.  Braxton:  I  move  to  amend  line  12  of  Section  6  by  inserting  after  the  word  "of" 
and  before  the  word  "laws"  the  word  "any,"  so  that  it  will  read  "and  of  any  laws."  The 
word  "any"  was  omitted  by  a  typographical  error. 

The  Chairman:  That  will  be  taken  as  the  sense  of  the  committee  unless  there  is 
objection. 

If  there  are  no  further  amendments  to  Section  6  the  Secretary  will"  read  Section  7. 

Sec.  7.  The  exercise  of  the  right  of  eminent  domain  shall  never  be  abridged  or  so 
constructed  as  to  prevent  the  General  Assembly  from  taking  the  property  and  franchises 
of  corporations  and  subjecting  them  to  public  use  the  same  as  the  property  of  indi- 
viduals; and  the  exercise  of  the  police  power  of  the  State  shall  never  be  abridged  or  so 
construed  as  to  permit  corporations  to  conduct  their  business  in  such  a  manner  as  to 
infringe  the  equal  rights  of  individuals  or  the  general  well-being  of  the  State. 

The  Chairman:  If  there  are  no  amendments  to  Section  7  the  Secretary  will  read 
Section  8. 

Mr.  Braxton:  Mr.  Chairman  I  am  requested  to  ask  that  Section  8  be  temporarily 
passed  until  the  gentleman  from  Petersburg  (Mr.  Hamilton)  who  is  interested  in  it  re- 
turns.   I  ask  the  committee  to  kindly  pass  that  section  for  the  present. 

The  Chairman:  If  there  is  no  objection  that  course  will  be  taken  and  the  Secretary 
will  read  Section  9. 

Sec.  9.  No  transportation  or  transmission  company  shall  charge  or  receive  any 
greater  compensation  in  the  aggregate,  for  transporting  the  same  class  of  passengers 
or  property,  or  for  transmitting  the  same  class  of  messages,  over  a  shorter  than  over 
a  longer  distance,  along  the  same  line  and  in  the  same  direction  (the  shorter  being  includ- 
ed in  the  longer  distance),  whether  such  longer  distance  be  entirely  within  this  State  or 
not;  but  this  section  shall  not  be  construed  as  authorizing  any  such  company  to  charge 
or  receive  as  great  compensation  for  a  shorter  as  for  a  longer  distance.  The  State 
Corporation  Commission  may,  from  time  to  time,  authorize  any  such  company  to  dis- 
regard the  foregoing  provisions  of  this  section  by  charging  such  rates  as  the  said  com- 
mission may  prescribe  as  just  and  equitable  between  such  company  and  the  public,  to 
or  from  any  junctional  or  competitive  points  or  localities,  or  where  the  competition  of 
points  located  without  this  State  may  make  necessary  the  prescribing  of  special  rates 
for  the  protection  of  the  commerce  of  this  State;  but  this  section  shall  not  apply  to  any 
special  excursion,  or  commutation  rates,  or  special  rates  for  services  rendered  to  the 
government  of  this  State  or  of  the  United  States,  or  in  the  interest  of  some  public 
object,  when  the  same  shall  nave  been  prescribed  or  authorized  by  the  State  Corporation 
Commission. 

Mr.  Braxton:  I  move  that  Section  9  be  amended  by  striking  out,  in  lines  7  and  8,  the 
words  "whether  such  longer  distance  be  entirely  within  this  State  or  not." 

I  do  that  in  view  of  a  decision  rendered  within  the  last  few  days  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  the  Louisville  and  Nashville  Railway  vs. 
Eubank,  in  which,  by  a  divided  court,  it  was  held  that  it  was  necessary  the  longer  haul 
should  be  entirely  within  the  State,  as  well  as  the  shorter  haul.  These  words,  there- 
fore, w^ould  be  of  no  use. 

The  amendment  was  agreed  to. 


2510  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Thorn:  I  move  to  insert,  after  the  word  "messages,"  in  line  5,  the  words  "under 
substantially  similar  circumstances  and  conditions.  The  purpose  of  the  insertion  of 
these  words  is  to  permit  the  carrier  to  issue  a  less  rate  for  a  longer  distance  than  for 
the  shorter  distance,  if  the  conditions  and  circumstances  are  such  as  to  permit  it,  sub- 
ject to  having  its  action  reviewed  and  overruled  by  the  commission.  It  is  frequently 
necessary,  in  the  transaction  and  management  of  transportation  business  to  give  a  rate^ 
quickly,  and  before  it  can  be  authorized  by  the  commission.  If  circumstances  exist  under 
which  that  would  be  permitted,  then  no  harm  is  done  to  the  public  by  permitting  the 
carrier  to  give  it  in  the  first  instance,  subject,  however,  to  being  subsequently  overruled 
by  the  commission.  The  article  as  it  stands  at  present  would  require  the  carrier  and  the 
patron  to  go  first  to  the  commission  before  they  could  get  the  rate  from  the  carrier. 
That  might  disappoint  the  whole  commercial  transaction.  Of  course,  it  will  be  apparent 
to  the  gentlemen  present  that  the  border  cities  and  border  localities  of  the  State  will  be' 
the  ones  that  will  suffer  from  the  long  and  short  haul  clause,  considered  merely  with 
reference  to  intra-State  traffic.  Long  hauls  must  always  be  to  border  towns,  and  there- 
fore it  is  a  question  whether  or  not  it  is  judicious  for  these  gentlemen  in  border  towns 
to  support  the  long  and  short  haul  clause.  There  should  certainly  be,  however,  some 
elasticity  in  the  law,  so  as  to  permit  a  carrier  to  give  a  rate  under  conditions  and  cir-^ 
cumstances  which  would  be  approved  by  the  commission,  without  having  first  to  go  to 
the  commission  to  get  authority  to  do  it. 

Mr.  Meredith:  You  say  that  if  the  commission  does  not  afterwards  approve  of  it,  it 
will  be  overruled.    What  is  the  effect  of  overruling  it? 

Mr.  Thom:  The  overruling  of  it  v/ould  be  to  prevent  it  in  the  future,  and  also  per- 
mit anybody  who  was  injured  by  it  to  obtain  damages. 

Mr.  Meredith:    That  would  apply  only  to  individual  cases. 

Mr.  Thom:  That  would  apply  to  individual  cases.  It  would  be  within  the  power  of. 
the  commission,  unaer  the  authority  here  given,  to  control  the  w^hole  question. 

Mr.  Braxton:  Mr.  Chairman,  I  regret  to  say  that  I  cannot  agree  with  my  friend: 
from  Norfolk  as  to  the  advisability  of  the  amendment  he  offers.  It  seems  to  me  the 
effect  of  it  would  be  to  practically  kill  the  long  and  short  haul  clause.  If  we  insert  the 
words  which  are  now  in  the  interstate  Commerce  act,  "under  substantially  similar  cir- 
cumstances and  conditions,"  we  are  inserting  words  of  so  vague  an  import,  so  broad" 
and  elastic,  that  it  would  practically  and  actually  destroy  the  long  and  short  haul  clause 
as  it  exists  now.  It  is  impossible  to  get  any  two  cases  exactly  alike  in  every  particular,, 
and  the  particulars  that  would  make  a  substantial  difference  are  so  vague  and  so  indefi- 
nite  that,  in  every  case,  litigation  would  be  required  to  decide  the  matter. 

Your  committee  considered,  and  it  was  conceded  by  Mr.  'Baxter,  who  addressed 
your  committee  in  behalf  of  the  railroad  interests  in  this  matter,  that  the  rule  is  almost 
invariable  that  it  is  wrong  to  charge  m^ore  for  a  short  haul  than  for  a  long  haul,  on  the 
same  line,  in  the  same  direction,  the  shorter  being  included  in  the  longer  haul;  and  that 
it  is  the  exception,  and  a  rare  exception,  that  the  road  is  justified  in  charging  more  for 
the  shorter  haul  than  for  the  longer  haul.  Inasmuch  as  that  is  true,  your  committee 
thought  that  the  rule  should  be  stated  as  a  rule;  that  we  should  recognize  that  there 
might  be  an  exception  to  it,  but  that  we  ought  to  leave  it  to  the  commission  to  say  when 
that  exception  exists,  and  not  to  the  railroads.  We  recognize  the  fact  that  an  exception 
can  exist  at  competitive  points,  junctional  points,  or  points  where  competition  of  towns 
outside  the  State  makes  it  necessary  to  adopt  a  different  rule  for  the  protection  of  the 
commerce  of  this  State.  In  the  hearings  before  your  committee,  the  gentlemen  who 
appeared  on  behalf  of  the  railroads  were  asked  whether  they  conjure  up  or  suggest  any 
conceivable  state  of  circumstances  under  which  a  railroad  would  be  justified  in  charging 
more  for  a  shorter  than  for  a  longer  haul,  unless  it  was  where  there  was  a  competitive 
point,  junctional  point,  or  points  where  competition  of  towns  outside  the  State  would 
render  it  necessary  for  the  protection  of  the  commerce  of  the  State;  and  each  and  every 
one  of  them  admitted  that  as  far  as  they  could  recall,  no  such  case  could  exist.  They 


DEBATES  OE  THE  COXSTITUTIOIn AL  COXTEXTIOX  OF  YIEGIXIA. 


2511 


could  not  conceive  of  any  case  T\-here  that  was  not  true.  This  language  is  almost  identical 
T^'ith  the  language  contained  in  the  Constitution  of  South  Carolina  to-day.  The  effect  of 
it  is  to  declare  that  the  rule  must  be  that  the  railroads  shall  not  charge  more  for  a 
shorter  than  for  a  longer  haul,  except  in  instances  of  junctional  points,  competitive 
points,  and  those  points  "^'here  the  competition  of  outside  towns  makes  it  justifiable,  and 
then  that  the  commission  should  be  the  judge  as  to  whether  the  exception  exists,  and  not 
the  railroad.  Just  so  sure  as  you  permit  the  railroad  company  to  be  the  judge,  just  so 
surely  do  you  completely  emasculate  and  annihilate  the  long  and  short  haul  clause.  If 
you  do  that  the  provision  is  not  worth  the  paper  it  is  written  on.  You  had  better  leave 
it  out  of  your  Constitution,  because  then  the  difficulty  may  possibly  be  remedied  by  the 
Legislature, 

All  of  this  talk  about  not  having  time  to  communicate  with  the  commission  is  an 
imaginary  thing.  The  Bristol  case  was  considered  before  your  committee,  and  it  was 
stated  that  the  rate  had  to  be  given  so  quickly  that  they  could  not  even 
wait  for  the  mail.  But.  as  stated  by  Mr.  Stebbins,  upon  investigation  it 
was  found  that  it  took  eight  days  to  get  that  rate,  and  the  man  had  to  get 
on  the  cars  and  come  to  Roanoke  before  he  got  it.  My  information  is  that  in  adjoining 
States  there  is  practically  no  difficulty  in  obtaining  special  rates  from  the  commission^ 
wherever  the  circumstances  justify  it.  The  commission  is  "au  fiat"  in  this  matter.  They 
do  not  have  to  begin  at  the  beginning  and  search  up  all  this  information  about  rates. 
They  are  just  as  well  posted  on  the  rates  that  obtain  in  the  State  as  the  railroad  men  are, 
and  they  can  tell  just  as  quickly  as  the  railroad  men  can  whether  a  change  is  a  justi- 
fiable one  or  not.  They  can  be  telegraphed  to  or  written  to,  or  communicated  with  just 
as  quickly  as  the  head  officer  of  the  railroad  company  can  be.  I  think  that,  if  it  is  the 
purpose  of  this  committee  to  put  a  long  and  short  haul  clause  in  this  Constitution,  they 
certainly  should  not  insert  the  words  "under  substantially  similar  circumstances  and  con- 
ditions." They  certainly  should  not  leave  it  to  the  railroads  to  say  when  they  can 
violate  the  rule.  'Then  we  will,  by  corrective  justice,  have  to  correct  the  evil  after  it  has 
been  done,  a  thing  which  experience  has  shown  is  practically  impossible.  We  give  them 
the  right  to  go  to  the  commission  whenever  certain  circumstances  exist,  and  the  com- 
mission, and  the  commission  alone,  has  the  power  to  give  them  the  right  to  charge  more 
for  a  shorter  tnan  for  a  longer  haul. 

Mr.  Thorn:  In  connection  with  the  Bristol  case,  to  which  you  have  referred,  I  want 
to  say  that  I  have  a  letter  at  my  room  from  one  of  the  members  of  the  firm  who  obtained 
that  rate,  and  he  was  very  much  surprised  at  the  statement  made  upon  this  floor  upon 
information  which,  of  course,  Mr.  Stebbins  derived  from  someone  else,  about  the  rate 
and  the  time  that  was  taken  in  getting  that  rate.  I  do  not  want  such  an  impression  to 
be  made  here.  I  can  bring  the  letter  here  at  some  other  time,  but  it  seems  to  me  it  is 
an  immaterial  matter  to  discuss  the  merits  of  that  individual  case.  Whether  in  that 
particular  case  it  took  eight  days  to  get  the  rate,  or  not,  the  case  affords  a  very  good 
illustration  of  the  necessity  for  the  power  on  the  part  of  the  carrier  to  give  the  rate  at 
once.  Here  was  a  building  going  up  at  Bristol.  The  Southern  Railway  Company  in 
Tennessee  offered  to  bring  bricks  from  some  place  there  to  Bristol  at  a  certain  rate. 
There  was  a  man  at  Pulaski  who  had  a  brick  yard,  and  who  could  furnish  some  of  the 
brick;  but  whether  or  not  he  could  get  the  contract  depended  upon  whether  he  could 
get  his  brick  to  Bristol  over  the  Norfolk  and  Western  at  a  rate  cheap  enough  to  enable 
him  to  compete  with  the  man  in  Tennessee.  T\Tiether,  in  that  individual  case,  there  were 
eight  days  in  which  to  make  that  inquiry,  or  only  eight  hours,  is  immaterial  to  the 
merits  of  the  question.  It  might  very  well  be  that  it  was  necessary  to  make  that  investi- 
gation in  telegraphic  time.  If  that  were  so,  then  under  the  article  as  reported  here  by 
the  committee,  the  Virginia  trader  would  be  cut  off,  and  the  Tennessee  man  would  get 
the  contract.  The  simple  question  before  us  is  whether  or  not  such  a  thing  is  desirable. 
1  do  not  think  my  friend  can  make  a  strong  case  in  favor  of  the  long  and  short  haul 
clause  in  this  article,  for  the  reason  that  he  has  created  a  commission  and  given  it  power 


■2512 


DEBATES  OF  THE  CONSTITUTIOi^AL  CONVENTION  OF  VIRGINIA. 


over  all  rates,  and  if  they  can  control  all  rates  they  can  control  the  rates  which  apply 
to  long  and  short  hauls.  I  do  not  believe  it  is  judicious  to  handicap  the  Virginia  man. 
whose  business  is  controlled  by  this  article,  and  prevent  him  from  entering  into  compet- 
tition  with  men  who  can  deliver  articles  intrastate  by  intrastate  roads. 

Mr.  Braxton:  I  think  it  is  a  mistake  to  think  that  these  rates  have  to  be  gotten  by 
telegraph.  My  information  is  that  nine  times  out  of  ten  where  a  telegraphic  rate  is 
given  it  is  nothing  more  nor  less  than  an  inquiry  from  some  local  depot  agent  who  has 
forgotten  what  the  real  rate  is,  or  who  has  lost  his  rate  book,  and  simply  telegraphs  to 
know  what  the  rate  is. 

My  information  is  that  special  rates  cannot  be  gotten,  and  I  think  they  ought  not  to 
be  given  by  the  railroads  until  they  have  fully  investigated  and  inquired  into  the  matter. 
As  this  commission  is  at  the  headquarters  of  the  State,  every  railroad  company  will  have 
its  representative  here.  I  am  assured  by  business  men  with  whom  I  have  talked  and  by 
the  president  of  the  North  Carolina  Railroad  Commission  that  this  supposed  delay  is 
imaginary,  and  that  there  is  no  difficulty  on  the  ground  of  delay  about  getting  special 
rates  where  they  are  required  or  desirable. 

Mr.  R.  Walton  Moore:  Is  it  not  a  fact  that  the  long  and  short  haul  principle  is 
applied  by  the  railroad  companies  now  almost  universally,  except  in  what  they  call  the 
Southern  territory? 

Mr.  Braxton:  That  is  true  beyond  question;  but  they  do  it  of  their  own  volition, 
because  they  recognize  it  as  a  reasonable  rule,  and  not  because  the  Interstate  Commerce 
Commission  has  compelled  them  to  do  so. 

Mr.  R.  Walton  Moore:  While  1  am  not  able  to  quote  the  language  of  the  testimony, 
I  recollect,  from  my  reading  of  the  report  of  the  industrial  commission,  that  Colonel 
Talcott,  one  of  the  officers  of  the  Seaboard  Air  Line  Company,  sanctions  the  application 
of  the  short  and  long  haul  principle  as  stated  in  this  section  now  under  consideration. 

Mr.  Braxton:  I  thank  my  friend  for  the  information  he  has  given  me.  It  but  cor- 
roborates what  our  information  was  before,  that  even  if  what  my  friend  from  Norfolk 
thinks  is  true  were  true,  and  there  v/ould  be  exceptional  instances  where  some  man 
would  fail  to  get  a  rate  that  was  desirable,  still  the  damage  to  the  people  of  this  State 
which  would  result  from  such  a  possible  occasional  occurence  is  infinitesimal  as  com- 
pared with  the  great  damage  that  would  result  unless  some  check  like  this  long  and 
short  haul  clause,  is  put  in  for  the  protection  of  the  great  mass  of  people  all  over  the 
State.  I  trust,  therefore,  it  will  be  the  pleasure  of  the  committee  to  vote  down  the 
amendment  of  the  gentleman  from  Norfolk. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Norfolk. 

The  amendment  was  rejected. 

On  motion  of  Mr.  James  W.  Gordon  the  committee  rose  and  the  President  resumed 
the  chair. 

On  motion  of  Mr.  Lindsay  the  Convention  adjourned  until  to-morrow,  Tuesday, 
February  18,  1902,  at  10  o'clock  A.  M. 


TUESDAY,  February  18,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole,  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Corpora- 
tions, Mr.  Ayers  in  the  chair. 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXVEXTIOX  OF  VIEGIXIA. 


2513 


Mr.  Braxton:  Mr.  Chairman,  we  passed  by  Section  8  yesterday  evening  because  it 
was  understood  that  the  gentleman  from  Petersburg  city  (Mr.  Hamilton)  desired  to  sub- 
mit some  remarKS  on  it.    I  move  that  we  now  take  up  and  dispose  of  Section  8. 

The  Secretary  will  read  Section  8. 

Sec.  8.  The  General  Assembly  shall,  by  general  laws,  of  uniform  operation,  provide 
reasonable  and  economical  regulations  for  the  ascertainment  of  just  compensation  to 
all  railroads  a  part  of  whose  right  of  way  may  be  condemned  for  the  use  of  telegraph  or 
telephone  lines,  and  provide  for  the  condemnation,  in  one  proceeding,  of  the  whole  of 
such  part  of  the  right  of  way  of  any  railroad  in  this  State,  and  that  telegraph  and  tele- 
phone companies,  by  such  proceedings,  shall,  by  such  proceedings,  acquire  only  an  ease- 
ment in,  and  to  the  right  of  way  of  the  railroads  in  this  State,  for  the  purpose  of  con- 
structing, maintaining  and  operating  their  lines,  which  must  be  done  so  as  not  to  inter- 
fere with  the  operation  of  the  railroad  trains;  and  if,  at  any  time,  a  railroad  company 
shall  need  for  railroad  purposes  any  portion  of  its  right  of  way  occupied  by  a  telegraph 
or  telephone  company,  such  telegraph  or  telephone  company  shall,  upon  reasonable 
notice,  at  its  own  expense,  remove  its  lines  to  such  other  points  on  the  right  of  way  as 
may  be  designated  by  the  railroad  company.  The  railroad  company  shall  have  the  prior 
right  to  their  entire  right  of  way  for  railroad  purposes. 

Mr.  Braxton:  Mr.  Chairman,  this  section  was  based  upon  a  resolution  introduced 
in  the  Convention  by  the  gentleman  from  Page  (Mr.  Parks).  It  is  the  desire  of  the  com- 
mittee that  he  take  charge  of  this  matter  in  replying  to  any  arguments  which  may  be 
made  against  it.  At  the  same  time  I  can  say  that  the  majority  of  the  committee  fully 
endorse  me  provision  as  there  stated,  but  as  he  is  more  familiar  with  the  matter  than 
any  member  of  the  committee,  I  shall  ask  him  to  take  charge  of  the  debate  on  this 
section. 

Mr.  Hamilton:  Mr.  Chairman,  and  gentlemen  of  the  committee,  I  regret  that  my 
absence  yesterday  caused  any  delay  in  considering  this  section,  and  I  do  not  know  that 
if  I  had  been  here  I  would  have  said  anything  more  on  the  subject.  I  have  noticed  this 
section  once  before,  and  had  hoped  that  the  objectionable  features  in  it  v/ould  have  been 
removed  by  the  committee. 

As  the  basis,  merely,  of  what  I  shall  have  to  say,  sir,  I  move  that  the  section  be 
stricken  out.  The  real  object  of  my  remarks  is  to  endeavor  to  get  the  committee  to 
amend  the  section,  if  possible,  so  as  to  do  away  with  its  most  objectionable  features,  if 
they  do  not  approve  of  striking  it  out.  As  I  said  some  days  ago,  in  considering  this 
matter,  I  was  familiar  with  this  subject  because  it  came  up  as  a  separate  bill  of  the 
Postal  Telegraph  Company  in  the  Legislature  several  years  ago,  and  the  purpose  and 
object  of  it  then  was  as  I  understood,  to  provide  simply  for  that  company  and  for  no 
other  company.  There  was  an  amendment  added  to  it  finally  that  it  should  apply  to 
telephone  as  well  as  to  telegraph  lines.  The  objection  which  I  have  to  it  is,  sir,  that  it 
seems  to  me  the  principle  is  wrong.  No  public  corporation,  no  corporation  authorized  to 
exercise  the  right  of  eminent  domain,  ought  to  be  allowed  to  exercise  that  right  to 
a  greater  extent  than  it  has  need  of  the  property  to  be  condemned  for  the  purposes  of 
the  corporation.  That  is  fundamental.  That  is  the  statute;  and  any  statute  which  went 
beyond  that  and  which  authorized  any  corporation  to  condemn  private  property  beyond 
the  needs  of  the  corporation  for  public  or  quasi-public  purposes,  would  be  unconstitutional. 

Now,  originally  in  Virginia  rights  of  way  were  eighty  feet  wide.  I  say  originally. 
That  is  my  recollection  of  the  oldest  statutes  on  the  subject,  and  of  the  old  charters. 
Twenty,  thirty  or  forty  years  ago,  the  width  of  a  right  of  way  was  extended  to  one  hun- 
dred feet,  indicating  that  eighty  feet  was  not  enough.  Now,  upon  this  right  of  way,  it  is 
proposed  to  allow  telephaph  and  telephone  companies  to  condemn  a  portion  of  it  for  the 
erection  of  poles  for  the  use  of  such  companies.  There  is  a  law  already  which  permits 
that.  An  act  passed  by  the  General  Assembly  permits  it,  and  the  only  difference  in 
substance  between  that  act  and  this  is,  as  I  understand,  that  this  permits  the  condem- 
nation in  one  tribunal  to  extend  over  the  full  length  of  any  railroad  in  the  State.  That 
is  practically  the  only  difference.    Now  I  know  of  no  other  case  in  which  condemnation 


2514  DEBATES  OF  THE  CONSTITUTIO^^AL  CONVENTION  OF  VIRGINIA. 

proceedings  to  obtain  the  use  of  real  estate  or  to  obtain  the  real  estate  itself  ex- 
tends beyond  the  limits  of  the  county  or  city  where  the  proceeding  takes  place.  This 
seems  to  be  an  absolutely  new  departure,  in  allowing  one  proceeding  in  one  court  of  this 
Commonwealth  to  extend  all  over  the  Commonwealth.  The  objection  to  it,  in  my  mind, 
is  that  you  do  not  have  commissioners  of  the  vicinage,  people  who  know  the  values  in 
the  immediate  locality,  as  you  do  in  all  other  cases.  Even  if  you  assume  that  it  is 
proper  to  allow  these  telephone  or  telegraph  companies,  by  a  right  higher  and  above  the 
railroad  company,  to  use  a  part  of  its  right  of  way,  it  is  objectionable,  Mr.  Chairman, 
from  a  practical  standpoint.  It  is  frequently  the  case  that  telephone  and  telegraph 
poles  are  improperly  put  up,  and  negligently  maintained.  They  may  be  placed  in  a 
position  too  near  to  the  railway  tracks;  they  may  render  the  running  of  trains  very 
dangerous. 

When  telegraph  poles  are  put  upon  railway  rights  of  way  now,  they  are  put  there 

under  a  contract  by  which  the  telegraph  company  is  absolutely  subordinate  to  the  rail- 
way company.  The  railway  company  is  charged  with  the  proper  care  of  the  right  of 
way;  they  are  charged  with  the  duty  of  keeping  it  in  condition,  of  keeping  ft  safe,  pre- 
venting its  obstruction,  and  so  on.  That  right  will  be  entirely  taken  away  by  this  pro- 
ceeding. 

Then,  I  say,  it  is  not  desirable;  it  seems  to  me  it  is  very  undesirable  that  five  com- 
missioners, we  will  say,  appointed  in  one  portion  of  the  State,  shall  act  with  respect  to 
this  matter  all  over  the  State,  wherever  the  railway  line  runs.  They  cannot  know  the 
local  conditions;  they  cannot  know  the  local  troubles,  and  if  they  undertake  to  view  the 
property,  as  all  commissioners  should  do  who  condemn  property,  it  would  be  a  task  in- 
volving great  time,  moment  and  waste.  The  gentlemen  who  were  urging  this  bill  before 
the  Legislature  did  not  want  them  to  be  required  to  view  the  property.  As  I  stated  the 
other  day,  he  said  that,  with  one  proceeding,  he  could  practically  get  the  use  of  this 
right  of  way  for  nothing  for  many,  many  miles. 

I  do  not  take  it  that  it  is  the  purpose  of  this  house  to  take  from  the  railway  com- 
panies anything  which  belongs  to  them,  without  giving  them  proper  compensation.  I 
take  it  they  do  not  mean  to  be  unfair  and  unjust  to  the  railway  companies,  and  1  hope 
they  will  think  about  this  matter.  It  is  not  a  matter  which  is  at  all  embraced  in  your 
general  plan  for  the  regulation  and  control  of  railroad  companies.  It  is  a  piece,  really, 
of  special  legislation,  Mr.  Chairman,  if  I  ever  saw  such  a  place,  far  more  so  than  anything 
else  I  have  seen  put  in  this  Constitution,  and  it  is  put  in  for  the  purpose  of  meeting  a 
particular  case,  as  I  understand  it.  The  Postal  Company  and  the  Western  Union  Com- 
pany quarreled.  The  railroads  have  no  earthly  interest  in  either  of  them,  and  care 
nothing  about  either  of  them,  except  as  useful  adjuncts  in  running  railways. 

The  law  requires  railway  companies  to  have  telegraph  stations  a  certain  number  of 
miles  apart,  and  the  railway  company  is  absolutely  indifferent  to  what  telegraph  com- 
pany performs  the  service,  if  it  performs  it  subordinate  to  the  control  of  the  road  itself. 
It  was  charged  by  the  gentlemen  representing  the  Postal  Company  that  some  of  the  rail- 
way companies  had  a  contract  with  the  Western  Union  Company  which  would  prevent 
the  railway  companies  giving  any  facilities  to  other  telegraph  companies.  I  think  that 
was  true  in  some  cases.  It  was  not  true  in  other  cases,  as  was  proved  by  the  exhibition 
of  the  contracts.  But  even  if  that  were  so,  there  was  nothing  wrong  in  it.  It  was  the 
best  contract  the  railway  company  could  make  to  discharge  their  own  duties,  with  the 
one  company  which  for  many  years  had  been  the  most  reliable  and  the  most  substantial 
of  the  telegraph  companies.  Most  of  these  new  telegraph  companies  have,  from  time  to 
time,  been  bought  out  by  the  Western  Union.  You  might  make  a  contract  with  one  of 
them,  and  in  a  little  while  you  find  that  company  gone.  It  is  the  duty  of  the  railroad 
companies  to  maintain  telegraph  lines  of  their  own  unless  they  can  get  the  service 
properly  performed  by  other  companies.  The  real  objection  to  this  section  is  that  the  con- 
demnation proceedings  should  not  take  place  for  the  whole  State  in  one  court  in  the 


DEBATES  or  THE  COXSTITrTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


2515 


State.  It  stLOuld  take  place  as  it  does  in  every  oiher  cause,  before  a  proper  tribunal 
having  charge  of  each  city  and  county  where  the  case  may  properly  come  up. 

The  next  fundamental  objection  is  that  no  concern  should  be  placed  in  a  position  of 
paramount  authority  on  the  right  of  way  of  a  railroad  company  if  the  railroad  company 
is  responsible  for  the  condition  of  that  right  of  way,  and  for  its  use.  The  two  things  are 
inconsistent  and  it  is  inconsistent  with  the  principle  of  our  law  of  condemnation.  In 
the  third  place,  this  says  this  shall  not  be  done  where  the  construction,  maintenance, 
and  operating  of  these  telephone  or  telegraph  lines  will  interfere  with  the  operating  of 
railroad  trains. 

That  is  not  all  that  may  be  seriously  interfered  with.  In  these  latter  days  it  is  be- 
coming very  necessary  at  some  places  to  make  side-tracks  and  spurs,  and  all  sorts  of 
things,  to  enable  the  railroad  to  reach  business  concerns,  warehouses,  etc.  Yet  there  is 
no  inhibition  here  with  respect  to  that.  It  is  just  said  that  its  trains  are  not  to  be  inter- 
fered with  by  these  people  when  they  condemn  the  right  of  way  and  put  a  pole  dovm. 

Before  going  on  with  this  branch  of  my  remarks.  I  wish  to  say  that  it  is  impossible 
to  maintain  or  to  construct  a  telephone  or  telegraph  line  on  a  right  of  way  merely  by 
getting  the  right  to  put  a  pole  in  a  hole.  Those  things  need  repair,  they  need  attention, 
and  that  means  that  the  use,  lengthwise,  or  the  right  of  way  for  the  purpose  of  con- 
struction and  repair,  would  be  granted  away  from  the  railway  company,  which  is  charged 
with  the  responsibility  for  the  condition  of  its  right  of  way,  to  somebody  else,  whom  the 
railway  company  cannot  govern  and  control.  I  say  it  is  net  a  sumcient  gtiard  or  pro- 
tection merely  to  say  that  it  shall  not  interfere  with  trains.  You  need  the  right  of  way 
at  times  for  depot  purposes,  you  need  the  right  of  way  for  station  purposes:  and  for 
sidings,  for  spurs,  and  for  all  sorts  of  things;  and  the  railway  company  ought  to  be  para- 
mount within  the  limits  c-i  that  right  of  wa.y  which  the  law  has  said  was  necessary  for 
the  proper  discharge  of  its  duty. 

But  there  is  another  trouble — 

Mr.  Braxton:  !May  I  ask  the  gentleman  how  far  the  last  clause  of  the  section,  in  his 
opinion,  meets  tne  objection? 

Mr.  Hamilton:  I  have  considered  that,  sir.  and  I  do  not  think  it  meets  it  entirely. 
I  will  give  my  reason  for  that  opinion  in  a  few  moments. 

And  if.  at  any  time,  a  railroad  company  shall  need  for  railroad  purposes  any  portion 
of  its  right  of  way  occupied  by  a  telepraph  or  telephone  such  telegraph  or  telephone 
company  shall,  unpon  reasonable  notice,  at  its  own  expense,  remove  its  lines  to  such 
other  points  on  the  right  of  way  as  may  be  designated  by  the  railroad  company. 

Xow.  Mr.  Chairman,  suppose  there  is  no  other  point  which  can  be  designated. 
There  are  places  in  which  the  rights  of  way  of  the  railroad  companies  are  so  narrow  and 
restricted  that  there  is  no  place  in  which  to  put  telegraph  or  telephone  poles,  to  my  cer- 
tain Ivnowledge.  In  the  city  of  Richmond,  in  the  city  of  Manchester,  and  in  the  city  of 
Petersburg,  there  are  points  where  the  railroad  company  has  no  room  to  allow  anybody 
to  put  telephone  poles. 

There  is  another  thing  which  I  will  call  to  your  attention  in  this  connection,  and 
that  is  that  if  we  pass  this  ordinance  in  this  shape,  you  may  be  putting  into  the  cities 
unintentionally  this  very  telephone  company  that  there  has  been  so  much  trouble  and 
objection  to  coming  into  the  cities  against  their  will.  Every  cit3%  almost,  is  intersected 
by  railway  companies,  and  if  there  is  room  on  the  rights  of  way  of  the  railway  com- 
panies to  take  enough  of  it  to  put  these  poles  up.  and  you  give  that  right  to  them,  where 
is  the  authority  of  that  city  to  say  these  telephone  companies  shall  not  come  in  there  and 
operate?  They  could  not  do  it?  I  do  not  know  much  of  anything  about  the  merits  of 
that  question,  and  I  care  very  little  about  it.  I  voted  against  it.  I  thought  the  city 
should  have  some  power  of  regulation  in  such  matters.  But  you  do  open  the  door  here, 
provided  there  is  room  for  these  very  companies,  that  there  seems  to  be  considerable 
feeling  about,  to  get  into  the  cities  and  doing  the  very  work  contrary  to  the  city's  consent. 


2516  DEBATES  OF  THE  CONSTITUTION' AL  CONVENTION  OF  VIRGINIA. 

And,  as  I  said  a  moment  ago,  there  are  various  places  upon  every  railway  right  of  way 
where  there  is  room  for  no  pole  of  any  kind,  except  probably  in  a  dangerous  position  to 
those  operating  the  trains.  I  know  there  are  such  points  in  Manchester, 
on  the  Coast  Line;  I  know  there  are  such  points  in  the  city  of  Rich- 
mond; I  know  there  are  such  points  in  the  city  of  Petersburg.  Suppose  there  is  a 
location,  however,  which  was  gotten  and  suppose  then  the  railroad  company  said,  "I  need 
that  land."  The  telegraph  or  telephone  company  may  dispute  the  fact  whether  the  rail- 
road company  needs  it  or  not.  Who  is  to  decide  that?  The  courts?  Is  the  railroad 
company  to  waif  before  it  can  get  sufficient  possession  of  its  right  of  way  to  use  it  for 
railroad  purposes,  upon  the  litigation  in  court  as  to  whether  the  railroad  company  really 
needs  it  or  not?  I  take  it  that  is  not  desirable  nor  is  that  right.  But,  suppose  a  tele- 
phone or  telegraph  company  says,  "I  will  move  these  poles,  but  you  must  tell  me  where 
else  to  put  them  on  your  right  of  way;"  and  the  railroad  company  says,  "Nowhere  else; 
I  have  no  room."  Then,  I  take  it,  the  Chairman's  view  of  the  last  clause  comes  in,  that 
the  railroad  company  shall  have  the  prior  right  to  its  entire  right  of  way  for  railroad 
purposes.  It  seems  to  me,  Mr,  Chairman,  that  is  necessary  by  the  existing  statutes  of  Vir- 
ginia and  by  the  underlying  principles  upon  which  the  condemnation  of  all  property  rests, 
namely,  that  you  cannot  condemn  a  particle  of  it  that  is  not  necessary  to  the  use  for 
which  it  is  to  be  condemned. 

I  regretted  to  hear  the  chairman  of  the  committee  say,  as  I  understood  him,  that 
this  section  met  with  the  approval  of  the  committee  and  I  take  it  for  granted  that  if  that 
is  the  case,  what  I  have  said  will  have  no  influence,  and  vnll  not  be  listened  to  or  re- 
garded. But  I  do  believe  you  are  doing  a  dangerous,  unnecessary  and  unwise  thing,  a 
thing  which  will  hurt  the  railroads,  and  will  not  help  you — a  thing  which  is  wholly  in  the 
nature  of  special  legislation,  for  the  benefit  of  special  people,  contrary  to  general  right 
and  general  justice. 

I  hope  very  much  that  some  gentlemen  here  will  consider  this  matter  with  care  and 
see  if  it  is  right  and  proper  before  they  give  their  approval  to  it. 

Mr.  Parks:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  occupy  your  time 
very  briefly  in  explaining,  as  I  understand  it  it,  Section  8  of  this  report. 

By  an  examination  of  that  section  you  will  see  that  the  purpose,  and  the  entire  pur- 
pose of  it,  is  to  provide  that  the  Legislature  shall  provide  reasonable  and  economical 
regulations  for  the  ascertainment  of  .iust  compensation  to  all  railroads,  a  part  of  whose 
right  of  way  may  be  condemned  for  the  use  of  the  telegraph  and  telephone  companies, 
and  for  the  condemnation  in  one  proceeding  of  the  whole  or  such  part  of  the  right  of 
way  of  any  railroad  in  this  State.  Now,  gentlemen,  this  is  no  new  law.  In  1879-'80 
the  Legislature  took  hold  of  this  matter  and  passed  three  statutes,  which  I  will  read: 

Every  telegraph  and  every  telephone  company  incorporated  by  this  or  any  other 
State,  or  by  the  United  States,  may  construct,  maintain  and  operate  its  line  along  any 
of  the  State  or  county  roads  or  works  and  over  the  waters  of  the  State,  and  along  and 
parallel  to  any  of  the  railroads  of  the  State,  provided  the  ordinary  use  of  such  roads, 
works,  railroads,  and  waters  be  not  thereby  obstructed;  and  along  or  over  the  streets  of 
any  city  or  town,  with  the  consent  of  the  council  thereof. 

Now,  you  will  notice  the  language  of  that  statute.  It  provides  that  every  telegraph 
and  every  telephone  company  incorporated  in  the  State  or  by  the  United  States  could 
maintain,  construct  and  operate  its  line  along  any  of  the  State  or  county  roads  or  works, 
and  over  the  waters  of  the  State,and  along  and  parallel  to  any  of  the  railroads  of  the 
State. 

A  telegraph  company  undertook  to  condemn  a  part  of  the  right  of  way  of  a  railroad 
company  for  its  use  for  the  construction  of  a  telegraph  line  upon  the  right  of  way.  The 
case  was  fought  by  the  railroad  company  and  by  the  Western  Union  Telegraph  Com- 
pany, and  finally  it  got  into  the  Court  of  Appeals.  The  Supreme  Court  of  the  State 
decided  that  the  words  "  along  and  parallel  to  "  meant  just  off  of  the  right  of  way,  but 


DEBATES  OF  IHE  COXSIIirilOXAL  COXTEXIIOX  OE  TIEGIXIA. 


•2517 


that  the  telegraph  company  could  not  condemn  any  part  of  the  right  of  ^'ay  of  the  rail- 
road and  could  not  put  a  pole  or  any  part  of  its  applances  upon  the  right  of  way  of  the 
railroad  company.  Efforts  were  made  in  two  or  three  instances  to  get  other  cases  into 
the  court,  but  as  soon  as  proceedings  were  instituted,  the  attorneys  would  take  the  case 
into  the  United  States  court.  Finally  a  case  was  instituted  which  got  again  to  the 
present  Supreme  Court,  and  they  reversed  the  decision  of  the  former  court,  and  decided 
that  under  the  statute  the  telegraph  company  by  a  proper  proceeding  could  condemn 
part  of  the  right  of  way  of  a  railroad,  and  construct  its  line  upon  the  right  of  way. 
Judge  Keith,  in  rendering  the  decision  in  that  case,  used  this  language,  to  which  I  call 
the  attention  of  the  committee: 

The  right  which  a  telegraph  company  is  authorized  to  acquire  would  be  a  matter 
of  indifference  to  the  railroad  companies  if  the  construction  heretofore  given  by  this 
court  vrere  correct,  and  the  mention  of  them  in  the  statute  would  be  utterly  irrelevant. 

Again  Judge  Keith  says: 

We  have  here  a  single  judgment  followed  in  no  other  case  rendered  by  a  bare 
majority  of  the  court,  two  of  the  judges  dissenting  and  placing  a  construction  upon  the 
statute  law  involved  in  it,  which  we  think  palpably  erroneous  and  contrary  to  public 
policy,  as  tending  to  foster  and  promote  a  monopoly. 

That  decision  settled  the  question  embraced  in  Section  1287,  which  I  have  read, 
and  held  that  the  telegraph  company  might,  by  proper  proceeding,  condemn  a  part  of 
the  right  of  way  of  a  railroad  company,  and  construct  a  line  of  telegraph  upon  that  right 
of  way. 

Section  12SS  is  as  follows: 

Such  company  may  contract  with  any  person  or  corporation,  the  owner  of  lands, 
or  of  any  interest,  franchise,  privilege  or  easement  therein  or  in  respect  thereto  over 
which  such  line  is  proposed  to  be  constructed  for  the  right  of  way  for  erecting,  repairing 
and  preserving  its  poles  and  other  structures  necessary  for  operating  its  lines,  and  the 
right  of  way  for  the  erection  and  occupation  of  offices  at  suitable  distances  along  its 
line  for  the  public  accommodation. 

Now,  we  come  to  Section  1299.  which  provides  the  manner  in  which  the  telegraph 
company  can  get  possession  of  any  part  of  the  right  of  way  of  the  railroad: 

If  the  company  and  such  owner  cannot  agree  on  the  terms  of  such  contracts  the 
company  shall  be  entitled  to  such  right  of  way,  upon  making  just  compensation  therefor 
to  such  owner.  Such  compensation  shall  be  ascertained  and  made,  as  provided  in  Chap- 
ter 46,  for  the  ac-quisition  of  lands  by  a  company  incorporated  for  a  work  of  internal 
improvement  company*  cannot  agree  upon  the  terms  of  the  purchase  with  those  entitled 
to  the  lands  wanted    for  the  purpose  of  the  company. 

So  you  see  that  the  statute  requires  any  telegraph  company  seeking  to  get  any  part 
of  the  right  of  vray  of  a  railroad  company  condemned  for  the  construction  of  a  telegraph 
line  to  proceed  under  Chapter  46.  If  you  turn  to  Chapter  46  you  will  find  that  one 
section  of  that  Chapter  provides  that  unless  the  telegraph  company  can  come  to  an 
agi'eement  with  the  railroad  company  they  must  file  their  petition  in  the  county  court 
of  the  county  wherein  the  land,  or  the  greater  part  thereof,  lies. 

Hence  a  telegraph  company,  seeking  to  condemn  any  part  of  the  right  of  way  of  a 
railroad  company  would  have  to  go  into  every  town  and  have  commissioners  appointed, 
under  Chapter  46,  to  condemn  the  right  of  way  of  a  railroad  company  in  that  county. 
In  the  first  place,  it  is  a  tedious  proceeding  to  force  a  telegraph  company  to  go  into  each 
county,  and  in  the  next  place,  It  is  oppressive.  A  telegraph  company  has  made  the 
experiment,  in  one  instance.  They  started  a  case  in  one  county  in  1SS9  and  it  was  never 
concluded  until  1S92,  when  it  was  concluded  in  the  Court  of  Appeals  of  the  State. 

What  position  do  the  railroad  companies  and  the  Western  Union  Telegraph  Com- 


2518 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OE  VIRGINIA. 


pany  take  upon  this  matter?  They  say  that,  under  Chapter  46,  a  telegraph  company 
cannot  condemn  the  right  of  way  of  a  railroad.  Why?  Because  the  right  of  way  of  a 
railroad,  no  matter  how  many  counties  it  runs  through,  is  an  entirety.  You  cannot  sell 
a  part  of  it.  You  cannot  assess  a  part  of  it.  You  cannot  tax  a  part  of  it;  but  you  must 
tax  it  as  an  entirety.    That  is  the  position  of  the  railroad  company. 

In  the  case  of  the  Telegraph  Company  vs.  The  Farmviile  and  Powhatan  Railroad 
Company,  counsel  for  the  railroad  company  and  counsel  for  the  telegraph  company  both 
used  this  language:  "A  railroad  from  one  end  to  the  other  is  one  entire  thing,  includ- 
ing its  narrow  strip  of  land,  excavations,  embankments,  tunnels,  bridges,  roadbed,  ties 
and  rails,  sidings,  depots,  tanks,  &c;  and  this  strip  of  land  is  necessary,  continuous  and 
unbroken.  It  is  a  single  tract  of  land  belonging  to  a  single  owner.  In  the  case  at  bar 
it  is  ninety  miles  long  and  extends  through  the  counties  of  Chesterfield,  Powhatan  and 
Cumberland  into  Prince  Edward.  Only  thirty-eight  miles  of  this  narrow  strip  of  land 
are  in  Chesterfield." 

I  say,  Mr.  Chairman,  that  when  a  telegraph  company  goes  into  court  under  Chapter 
46  they  can  only  get  the  land  condemned  in  each  county  by  proceedings  instituted  and 
prosecuted  in  each  county.  I  want  to  call  your  attention  to  the  decisions  which  are 
relied  upon  by  the  railroad  company  and  the  Vl^estern  Union  Telegraph  Company  in 
combating  the  right  of  a  telegraph  company  to  condemn  the  right  of  v/ay  over  any  part 
of  their  right  of  v/ay.  In  the  case  of  the  St.  Louis  and  Cairo  Illinois  Railroad  Company 
vs.  The  Postal  Telegraph  Cable  Company,  reported  in  173d  Illinois,  at  page  508,  the 
court  said:  "If  a  special  condemnation  proceeding  should  be  instituted  in  each  one 
of  the  counties  through  which  the  right  of  way  runs,  there  would  be  in  all  such  suits 
the  same  petitioner,  the  same  defendant,  and  the  same  right  of  way.  Under  such  cir- 
cumstances it  hardly  seems  necessary  to  file  seven  different  petitions  in  seven  different 
county  courts,  in  seven  different  counties,  to  condemn  the  same  right  of  way  in  all  seven 
counties.  Such  a  course  would  be  to  subject  the  people  of  the  State,  without  any  good 
reason,  to  the  costs  and  annoyance  of  seven  different  law  suits,  and  the  petitioner  to  the 
delay  consequent  upon  bringing  so  many  proceedings." 

In  the  case  of  the  Postal  Telegraph  Cable  Company  vs.  the  Oregon  Short  Line  Rail- 
way company,  decided  in  May,  the  courts  says: 

The  damages  to  which  the  defendant  is  entitled  is  for  the  whole  property,  and  the 
cause  of  action  arises  in  all  five  counties  as  a  suit.  The  county  lines  crossing  the  right 
of  way  of  appellants  do  not  destroy  the  singleness  of  its  use.  Neither  does  it  negative 
the  fact  that  all  the  land  constitutes  but  one  right  of  v/ay,  as  is  said  in  Lewis  on  Emi- 
nent Domain,  Section  475,  in  defining  what  constitutes  an  entire  tract:  In  general 
it  is  so  much  as  belongs  to  the  same  proprietor  as  that  taken,  and  is  contiguous  to  it, 
or  used  together  for  a  common  purpose, 

I  submit,  Mr.  Chairman,  that  under  chapter  46  it  is  absolutely  impossible  for  a 
telegraph  company,  by  application  and  proceedings  under  that  chapter,  to  secure  the 
condemnation  of  any  part  of  the  right  of  way  of  a  railroad  company,  because  the  court 
holds  that  you  cannot  condemn  any  part;  that  you  cannot  condemn  the  portion  lying  in 
this  county  by  one  proceeding,  and  then  go  into  another  county  and  condemn  the  land 
lying  in  that  county  by  another  proceeding;  but  that  the  right  of  way  of  a  railroad  is 
an  entirety  and  you  must  condemn  it  as  an  entirety. 

Now,  gentlemen,  what  is  the  necessity  for  that?  As  Judge  Keith  has  said,  here  is 
a  matter  that  is  tending  to  foster  and  promote  a  monopoly. 

Mr.  Hamilton:  Was  it  not  admitted  by  Colonel  Mcintosh  that  he  had  a  written 
agreement  with  the  Western  Union  Telegraph  Company  to  charge  the  same  rates? 

Mr.  Parks:    I  do  not  know  it,  sir. 

Mr.  Hamilton:  I  thought  you  were  the  chairman  of  the  committee  when  the  matter 
came  up  before  it. 

Mr.  Parks:  I  was  chairman  when  Colonel  Mcintosh  appeared  before  the  committee 
in  regard  to  the  bill;  but  I  do  not  remember  what  he  said  about  it. 


DEBATES  OE  IKE  COXillTUIIOXAL  COXVEXIIOX  OE  YIEGIXIA. 


2519 


Bui  -u-heilier  ihat  be  true  or  noi,  iliere  is  the  Western  Union  Teleg-rapli  Company 
using  its  line  with  the  consent,  I  believe,  of  about  99  per  cent,  of  the  railroad  companies 
in  the  State  of  Virginia,  and  as  to  one,  at  least,  of  the  railroad  companies  the  contract 
provides,  and  the  railroad  company  binds  itself  in  terms  in  the  contract,  that  it  will 
not  permit  or  aliovr.  if  ii  can  prevent  it.  any  other  telegraph  company  to  construct  its 
line  upon  its  right  of  way:  but  that  it  will  reserve  to  the  Western  Union  Telegraph  Com- 
pany entire  right  and  control  of  the  right  of  way,  so  far  as  the  construction  of  telegraph 
lines  is  concerned. 

It  is  said  that  this  provision  does  not  protect  the  railroad  company;  that  it  does 
not  provide  that  they  shall  have  the  use  of  their  right  of  way  for  spurs,  switches  and 
sidings.    Why  gentlemen,  listen  to  the  language: 

Telegraph  and  telephone  companies  shall,  by  such  proceedings,  acauire  only  an 
easement  in  and  to  the  right  of  way  of  the  railroads  in  this  State,  for  the  purpose  of 
constructing,  maintaining  and  operating  their  lines,  which  must  be  done  so  as  not  to 
interfere  with  the  operation  of  the  railroad  trains. 

"What  do  they  want  with  sidings,  what  do  they  want  with  spurs,  what  do  they  want 
with  switches  if  it  is  not  proposed  to  operate  trains  upon  those  spurs,  switches  and  sid- 
ings? If  it  is  not  for  that  purpose,  it  is  for  no  purpose.  This  provision  says  that  the 
line  must  be  so  constructed  as  not  to  interfere  with  the  operation  of  trains.  Again,  it 
is  said  that  the  railroad  company  shall  have  the  prior  right  to  their  entire  right  of  way 
for  railroad  purposes.  If  they  need  any  part  of  their  right  of  way  at  any  time  to  be 
used  for  railroad  purposes  the  law  says  that  the  telegi'aph  company  shall  remove  its 
lines  at  its  own  expense  to  such  other  points  on  the  right  of  way  as  may  be  designated 
by  the  railroad  company. 

-vir.  Thorn:  Suppose  the  whole  right  of  way  is  necessary  for  railroad  purposes, 
where  does  it  move? 

Mr.  Parks:    Then  the  telegraph  company  must  put  its  poles  somewhere  else. 

It  does  not  say  so  in  so  many  v.-ords;  but  it  says  they  shall  put  them  on  the  right 
of  way  wherever  the  railroad  company  shall  designate  and  it  says,  further,  that  the  rail- 
road company  shall  have  tlie  exclusive  control  of  its  entire  right  of  way  for  railroad 
purposes.  Then,  if  its  entire  right  of  way  is  necessary,  the  telegraph  company  cannot 
use  the  right  of  way  or  any  part  of  it. 

Mr.  Thorn:  Are  not  these  two  clauses  in  the  report  inconsistent?  One  provides 
that  the  railroad  company  shall  designate  some  other  point  on  its  right  of  way  to  be 
occupied  by  the  telegraph  line,  in  case  the  railroad  company  needs  a  part  of  the  right 
of  way  where  the  line  is  then  located;  and  the  other  clause  provides  that  the  railroad 
company  shall  have  control  of  its  entire  right  of  way.  How  do  you  reconcile  these  two 
provisions? 

Mr.  Parks:  They  are  very  easily  reconciled.  If  you  provide  that  the  railroad  com- 
panies can  say  to  the  telegraph  lines:  I  need  this  for  the  operation  of  my  trains  and 
railroad  and  you  must  remove  from  it,"  then  no  matter  how  much  room  they  may  have 
they  will  say  "  I  want  all  this  and  you  might  just  as  well  strike  out  the  entire  pro- 
vision because  the  railroad  company,  in  carrying  out  their  contract  with  the  Western 
Union  Telegraph  Company,  would  never  have  any  place  upon  its  right  of  way  for  the 
construction  of  a  telegraph  line  and  the  erection  of  telegraph  poles.  That  has  been  their 
conduct  in  the  past  and  it  will  be  their  conduct  in  the  future. 

A  bill  similar  to  this  was  introduced  in  1S9T-9S  by  the  late  lamented  Mr.  Redding. 
It  was  reported  upon  and  put  upon  the  calendar,  but  too  late  to  be  acted  on.  At  the  last 
regular  session  I  introduced  a  similar  bill.  It  was  reported  and  passed  by  the  House  by 
a  large  majority  and  went  to  the  Senate.  There  it  was  turned  down.  Certain  objections 
were  made  to  the  bill,  and  I  prepared  another  bill  correcting,  as  far  as  I  could,  those 
objections.  It  was  passed  through  the  House  almost  unanimously  and  went  to  the 
Senate  and  there  was  again  lost. 


2520  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Is  there  not  a  demand  for  this?  The  railroad  company  recognized  that  demand 
years  ago.  Now,  mark  you,  the  Legislature  said  that  these  condemnation  proceedings 
should  be  in  accordance  with  Chapter  46.  Bear  in  mind  that  Chapter  46  was  enacted 
before  the  telegraph  was  invented.  The  man  who 'prepared  that  bill  for  proceedings  for 
condemnation  of  the  right  of  way  of  a  railroad  did  not  know  anything  about  a  telegraph 
line.  The  proceedings  there  provided  for  are  entirely  unsuited  to  the  condemnation  of 
the  right  of  way  of  a  railroad  for  the  construction  of  a  telegraph  line. 

It  is  further  stated  that  it  will  interfere  with  the  cities  and  towns.  The  section,  as 
placed  in  this  report,  is  not  in  the  language  in  which  I  drew  it.  I  want  to  say  that  if 
there  is  any  danger  that  this  bill  will  interfere  with  the  the  rights  of  cities  to  the  con- 
trol of  their  streets  and  alleys  in  the  erection  of  telegraph  and  telephone  lines,  then  I 
want  to  protect  the  cities  and  towns.  I  have  this  language  in  the  resolution  which  I  in- 
troduced: 

Nothing  herein  shall  be  construed  to  interfere  with  the  rights  of  cities  and  towns 
to  arrange  and  control  their  streets  and  alleys,  and  to  designate  the  places  and  in  the 
manner  in  which  the  wires  of  such  company  shall  be  erected  or  laid  within  the  limits 
of  such  city  or  town. 

If  it  is  thought  that  the  provision,  as  introduced  by  the  committee,  will  interfere 
with  the  rights  of  cities  and  towns  to  control  these  matters  I  am  willing  that  it  shall 
be  amended. 

Mr.  Pollard:  I  think  the  point  you  have  mentioned  is  covered  in  Section  10  of  the 
report  of  the  Committee  on  Cities  and  Towns,  already  adopted. 

Mr.  Parks:  I  think  so  myself;  but  if  it  is  not,  I  want  it  protected.  I  have  no  de- 
sire to  undo  the  matter  as  it  now  stands  or  to  interfere  with  the  right  of  cities  and 
towns  to  control  their  streets  and  alleys. 

We  are  asked  if  there  is  any  demand  for  this  provision,  if  the  people  want  it,  is 
there  any  clamor  for  it?  My  view  may  be  v/rong  upon  that  matter,  but  I  hold  that  if  I 
am  in  this  Convention  in  a  representative  capacity  or  in  the  Legislature  as  a  represen- 
tative of  the  people  and  I  see  that  the  rights  of  the  people  are  being  interfered  with  and 
that  there  is  a  wrong  likely  to  result,  or  if  I  see  that  the  people  can  be  benefited  along 
any  line,  no  matter  whether  it  has  ever  been  discussed  before  the  people  or  whether  they 
know  anything  about  it.  I  consider  it  my  sworn  duty,  as  their  representative,  whether 
there  is  a  popular  demand  and  clamor  for  it  or  not  to  try  to  get  such  legislation,  if  legis- 
lation is  sought,  and  if  legislation  is  sought  which,  in  my  judgment  would  be  prejudicial 
to  their  interests,  it  is  my  duty  to  defeat  that  legislation  if  I  can  without  waiting  for 
popular  clamor  or  popular  demand.  It  is  my  duty  to  represent  the  people  and  to  look 
out  for  their  interests  with  what  ability  I  possess  and  not  to  wait  for  popular  clamor  or 
demand  to  compel  me  to  do  what  I  believe  is  right  and  what  my  judgment  approves. 

Mr.  Ingram:  I  desire  to  offer  the  following  amendment  which,  I  think,  makes  the 
matter  clearer  and  tends  to  the  protection  of  the  right  of  the  railroad  company. 

Amend,  in  line  19,  after  the  word  "company"  by  inserting  the  words  "provided 
there  is  such  place  not  needed  for  railroad  purposes,  and  shall  have  the  right  to  pre- 
scribe reasonable  regulations  as  to  the  manner  of  construction  and  maintenance  of  said 
lines." 

And  by  striking  out  the  words  "The  railroad  company  shall  have  the  power  and 
right  to  their  entire  right  of  way  for  railroad  purposes." 

Mr.  Fairfax:  The  wording  of  that  amendment  does  not  cover  many  of  the  instances 
whereas  great  hardship  might  be  worked  on  the  railroad  company.  We  will  take,  for 
where  great  hardship  might  be  worked  on  the  railroad  company.  We  will  take,  for 
example,  a  cut  50  or  60  feet  deep,  whose  slopes  go  beyond  the  right  of  way  of  the  com- 
pany. Would  not  this  amendment,  if  the  telegraph  company  felt  so  inclined,  allow  it 
to  put  its  poles  upon  the  slopes  of  that  cut.  Where  the  entire  right  of  way  of  the  rail- 
road company  is  taken  up  by  the  slopes,  you  cannot  interfere  with  the  slopes  without 
endangering  the  property  of  the  company  because  it  is  apt  to  produce  land  slides.  I 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2521 

know  of  one  case  where  the  Western  Union  Company  is  paying  for  an  additional  right 
of  way  for  two  or  three  thousand  feet,  because  there  is  no  room  on  the  right  of  way  of 
the  railroad  company  for  its  telegraph  poles. 

Mr.  Ingram:  I  would  like  to  state  to  the  gentleman  that  I  think  my  amendment 
does  cure  the  case  he  mentions.  It  says  "provided  there  is  such  place  not  needed  for 
railroad  purposes."  It  seems  to  me  that  the  slopes  you  speak  of  were  necessary  to  the 
railroad  and  the  case  to  which  you  refer,  where  the  Western  Union  Telegraph  Company 
has  to  pay  a  large  price  for  the  purpose  of  placing  its  poles  outside  o'f  the  right  of  way 
would  be  another  case  in  which  it  would  be  absolutely  needed  for  railroad  purposes,  and 
would  be  covered  by  my  amendment.  In  addition,  the  railroad  company  would  have  the 
right  to  prescribe  rules  and  reasonable  regulations  as  to  the  manner  of  construction  and 
maintenance  of  the  lin.es  so  as  to  make  its  own  right  of  way  safe  and  keep  it  intact. 

So  far  as  Section  8  is  concerned,  I  wish  to  state  that  this  is  no  new  right  we  are 
conferring.  It  is  a  right  which  already  belongs  to  the  people  under  the  statute  law  and 
the  decisions  of  our  Court  of  Appeals  in  the  cases  quoted  by  the  gentleman  from  Page. 
It  simply  gives  an  effective  remedy.  It  does  away  with  the  necessity  of  going  into 
every  county  in  the  State  and  getting  out  separate  condemnation  proceedings  when  this 
matter  might  be  done  without  injury  to  the  railroad  companies,  in  one  general  pro- 
ceeding. 

Mr.  Robertson:    Do  you  not  think  it  would  be  within  the  power  of  the  Legislature 
to  grant  the  relief,  if  there  be  any  necessity  for  relief  in  this  matter? 
Mr.  Ingram:    Yes,  sir. 

Mr.  Robertson:  Then  why  is  it  you  gentlemen  are  not  willing  to  leave  this  matter 
to  the  Legislature? 

Mr.  Ingram:  We  do  leave  it  to  the  Legislature.  We  say  that  the  Legislature  shall 
pass  laws  carrying  into  effect  the  provisions  of  Section  8;  that  the  Legislature  shall 
provide  reasonable  and  economical  regulations  for  the  ascertainment  of  just  compen- 
sation to  all  railroads, 

Mr.  Robertson:  I  understand  that,  but  why  is  it  not  perfectly  possible  for  you  to 
leave  this  clause  out  entirely,  and  that  the  Legislature  should  do  the  thing  which  you 
say  the  Court  of  Appeals  indicated? 

Mr.  Ingram:  Because  we  prefer  to  settle  this  matter  as  we  have  settled  other 
matters  in  the  Constitution.  We  believe  it  is  to  the  interest  of  the  public  that  it 
should  be  settled  here.  We  do  not  take  away  the  rights  from  the  Legislature.  We  say 
to  the  Legislature,  "You  shall  provide  in  some  reasonable  and  proper  way  a  just  compen- 
sation." If  the  gentleman  from  Roanoke  will  excuse  me,  he  will  have  the  right  to  reply 
to  me.  This  is  a  matter  upon  which  we  disagree  again  as  to  the  propriety  of  such  enact- 
ments along  this  line.  We  have  endeavored  as  best  we  could  to  safeguard  the  rights  of 
the  railroads  in  every  way,  but  at  the  same  time  we  do  want  an  efficient  remedy  for  the 
important  agencies,  transmission  companies,  telephone  and  telegraph  companies,  so  that 
they  can,  by  proper  compensation,  in  a  proper  and  orderly  proceeding,  condemn  the 
right  of  way  of  these  companies  so  far  as  it  does  not  interfere  with  their  own  use  of  the 
right  of  way  of  the  railroad  companies  of  the  State;  and  it  is  intended  to  bring  about  an 
effective  remedy  where  the  remedy  up  to  this  time  is  not  effective. 

Mr.  Hancock:  Mr.  Chairman,  this  report  of  the  Committee  on  Corporations,  taken 
in  the  main,  meets  my  hearty  approval.  I  believe  the  transportation  and  the  trans- 
mission companies  of  the  Commonwealth  should  be  controlled,  and  I  am  in  favor  of 
giving  to  this  commission  all  the  power  that  is  necessary  to  accomplish  the  object  and 
purpose  of  this  report;  but  at  the  same  time,  while  I  believe  that  the  railroad  com- 
panies should  be  controlled,  I  do  not  think  they  should  be  oppressed.  I  do  not  think 
there  should  be  placed  in  this  Constitution  a  provision  that  infringes  upon  the  rights  of 
the  railroads  and  places  them  at  a  disadvantage.  I  believe  that  they  should  be  con- 
trolled, but  I  do  not  believe,  as  I  have  said,  that  any  injustice  should  be  done  them. 

Now,  take  this  question  of  eminent  domain.  What  is  the  principle  of  eminent 
159— Const.  Deb. 


2522  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

domain.  What  is  the  principle  of  eminent  domain  as  applied  to  corporations.  It  is 
that  the  power  of  the  State  is  given  to  a  corporation  to  condemn  as  much  property  of 
the  individual  citizen  as  is  necessary  for  the  use  of  that  corporation.  If  that  is  the 
object  and  purpose  of  the  right  of  eminent  domain,  then  no  railroad  company  in  the 
Commonwealth  has  any  more  right  of  way  than  it  is  entitled  to  have  for  its  own  pur- 
pose; or,  if  it  has  condemned  any  more  than  it  needs,  it  has  improperly  condemned  it. 
If  it  has  followed  the  statute  and  condemned  only  such  as  the  law  says  it  is  entitled  to, 
then  no  man  has  a  right  to  place  his  hand  upon  it  or  to  interfere  with  it.  It  is  the 
private  property  of  that  corporation  to  be  used  for  its  own  purposes.  If  that  be  true, 
then  these  railroads  have  their  right  of  way;  and  what  did  you  give  it  to  them  for? 
You  gave  it  to  them  for  a  public  purpose.  You  did  not  give  them  any  more  than  what 
they  needed,  and  that  is  laid  off  for  them,  and  they  have  it  as  firmly  and  as  securely  as 
a  private  individual  has  the  title  to  his  property. 

But  now  comes  in  a  statute  and  says  that  this  right  of  way  may  be  condemned  for 
the  telephone  and  telegraph  companies.  I  believe  any  such  statute  as  that  is  uncon- 
stitutional, because  it  is  contrary  to  common  right  and  to  common  sense,  and  to  the 
principles  that  should  control  in  all  of  these  matters  where  condemnation  proceedings 
are  had  and  the  right  of  eminent  domain  is  invoked. 

I  had  the  honor  to  preside  at  the  trial  of  both  of  the  cases  cited  by  the  gentleman 
from  Page  (Mr.  Parks).  For  several  weeks  one  of  the  cases  was  on  trial.  Commis- 
sioners were  appointed  to  assess  the  damages  and  to  determine  what  was  the  value  of 
that  portion  of  the  road  proposed  to  be  condemned,  to  say  where  the  poles  ought  to  be 
located,  and  when  and  how  they  should  be  removed;  how  near  they  should  come  to  the 
station,  and  how  close  they  should  be  placed  to  the  right  of  way  at  certain  locations. 
The  whole  matter  was  in  such  confusion  that  when  the  case  came  before  the  Circuit 
Court  of  Petersburg  for  trial,  I  decided  that  the  law  did  not  allow  telegraph  companies 
to  go  upon  the  railroad  company's  right  of  way  at  all;  that  it  was  inconsistent  with  the 
idea  that  they  had  it  for  a  public  purpose  and  could  not  be  taken  for  any  other. 

The  case  went  to  the  Supreme  Court  of  Appeals,  and  the  court  sustained  that  de- 
cision. Then,  years  afterwards,  one  of  the  smallest,  weakest  and  poorest  railroads  in 
the  Commonwealth  of  Virginia  was  selected,  and  another  effort  was  made  to  place  tele- 
graph poles  on  the  right  of  way  of  this  railroad.  When  the  case  was  presented  to  me 
I  reaffirmed  the  decision  I  rendered  in  the  other  case.  The  case  then  went  to  the 
Supreme  Court,  and  was  reversed.  I  do  not  believe  the  case  was  fully  and  properly 
argued  before  that  court.  If  it  had  been,  I  believe  no  such  judgment  would  have  been 
rendered.  (Laughter.) 

Yes,  sir,  when  I  have  the  Court  of  Appeals  affirming  my  decision  in  one  case,  and  in 
another  case,  upon  the  same  facts,  reversing  my  decision,  I  have  the  right  to  say  that 
they  would  have  stood  by  their  former  decision  if  the  case  had  been  properly  presented 
to  them.  (Laughter.)  But  this  is  the  proposition  that  I  wish  to  maintain,  far  beyond 
courts  of  appeals  or  statutes,  that  when  a  right  of  way  is  condemned  and  said  to  be 
absolutely  necessary  for  one  purpose,  then  to  take  it  and  use  it  for  an  entirely  different 
and  opposite  purpose  is  so  inconsistent  with  common  right  and  justice  that  no  man,  it 
seems  to  me,  will  be  in  favor  of  any  such  construction.  Of  course,  the  State  may  con- 
demn for  its  own  purpose  all  of  the  right  of  way  of  the  railroad  if  it  so  desires  by  pay- 
ing proper  compensation  therefor.  If  you  will  excuse  a  personal  allusion,  I  will  state 
that  one  of  these  railroads  passes  through  my  farm,  in  the  county  of  Chesterfield,  and 
that  the  Long  Distance  Telephone  came  along,  running  its  line  parallel  to,  but  not  upon, 
the  right  of  way  of  the  railroad.  The  poles  were  placed  on  my  land  five  feet  outside  of 
the  railroad  right  of  way,  and  I  was  paid  for  the  land.  There  was  no  difficulty  in  get- 
ting everybody  on  the  line  to  sell  the  right  of  way  to  the  telephone  company.  The  peo- 
ple were  glad  to  have  the  poles  erected  there  and  to  have  the  service  of  the  telephone 
all  along  the  line,  and  there  was  no  objection.  The  company  had  no  trouble  about  con- 
demnation proceedings,  I  have  been  informed  from  the  city  of  Washington  to  the 


DEBATES  01  THE  COXSIIIUIIOXAL  COXVEXTIOX  OE  VIRGINIA. 


2. 5 -2  3 


border  of  the  State  of  .Virginia  on  the  North  Carolina  line.  There  was  no  necessity  for 
condemnation,  because  the  people  ^\-ere  too  anxious  to  give  or  to  sell  the  right  of  way. 

Now.  when  yoti  have  thousands  of  acres  of  land  on  both  sides  of  the  railroad,  and 
all  you  have  to  do  is  to  step  five  feet  outside  of  this  right  of  way  of  the  railroad  and 
get  the  right  to  place  these  poles  there,,  by  purchase  or  condemnation,  from  persons  re- 
siding along  the  railroad,  why  place  this  restriction  and  this  burden  upon  the  railroads? 
Why  make  it  so  that  if  one  of  these  telegraph  or  telephone  companies  should  im- 
properly place  one  of  its  poles  in  the  earth  and  during  a  storm  this  pole  should  fall 
across  the  track  of  the  railroad,  and  one  of  the  fast  trains  comes  along  and  runs  over 
this  pole,  and  an  accident  occurs  and  a  number  of  passengers  are  injured,  how  could  the 
railroad  company  have  prevented  it?  Yet  the  railroad  company  must  pay  damages.  The 
railroad  right  of  way  ought  to  be  sacred  for  its  own  purposes. 

-Jr.  Kendall:  .vlr.  Chairman,  this  is  not  a  matter  about  which  I  feel  any  special 
interest.  It  seems  to  me  the  arguments  of  the  gentleman  from  Page  (Mr.  Parks)  and 
the  gentleman  from  Manchester  (,Mr.  Ingram)  have  fully  shown  to  the  Convention  the 
propriety  of  this  provision  as  embodied  in  this  report,  especialh'  with  the  amendment 
oSered  by  the  gentleman  from  Manchester.  I  reckon  at  least  that  the  law  is  settled, 
as  it  has  been  determined  by  our  Supreme  Court  in  its  last  decision,  and  I  must  admit 
that  I  do  not  appreciate  the  argument  of  the  gentlemen  from  Chesterfield  Olv.  Han- 
cock), who  seems  to  think  that  when  land  is  condemned  by  a  railroad  company  it  be- 
comes Invested  with  some  sac-redness  which  does  not  pertain  to  the  land  owned  by  a 
private  individual,  so  th8.t  it  cannot  be  taken  for  public  uses  under  any  terms  or  cir- 
cumstances. That  is  a  necessity  which  is  often  resorted  to.  I  believe  in  the  past  it 
has  been  a  disputed  point,  and  it  occtirs  to  me  I  have  seen  somewhere  that  the  Standard 
Oil  Company,  making  use  of  some  decisions  of  that  kind,  for  years  blocked  the  way  of 
a  competing  line,  preventing  them  from  reaching  water  points. 

But  it  is  now  a  settled  matter  in  the  law  everywhere  that  where  lands  which  have 
been  condemned  by  railroads  or  other  public  service  corporations  for  their  purposes 
are  necessary  for  other  purposes,  they  may  be  condemned  for  those  other  purposes, 
provided  they  do  not  interfere  with  the  public  rights  of  the  company  which  first  con- 
demned them. 

That  is  all  that  is  attempted  here  by  this  provision,  and  it  is  not  in  the  contempla- 
tion of  any  one  who  is  advocating  that  provision  that  the  railway  should  be  in  any  way 
interfered  with  in  the  enjoyment  of  this  privilege.  That  is  safeguarded  against  in 
every  manner  in  which  it  is  possible  to  guard  it  by  the  report;  and  I  think  I  may  say 
for  the  committee  that  if  gentlemen  are  able  to  offer  any  amendments  which  will  make 
that  more  safe-guarded  than  it  is.  the  committee  is  ready  and  willing  to  accept  them. 

It  was  said  to  you  by  the  gentleman  from  Petersburg  (Mr.  Hamilton)  that  this  was 
not  a  measure  to  prevent  monopolies,  because  the  Western  Union  had  a  contract  with  the 
Postal  Company  that  the  rates  should  be  the  same;  but  he  should  remember  that  this  is 
not  only  a  measure  in  the  Interest  of  other  telegraph  companies.  It  is  in  the  interest 
of  the  telephone  companies  that  are  springing  up  in  every  section  of  the  State.  It  is 
in  the  interest  of  every  other  telegraph  company  that  may  find  it  is  necessary  for  public 
uses  to  be  able  to  run  its  lines  along  these  railroad  tracks  by  one  combination,  without 
entering  into  a  proceeding  of  that  kind  In  each  county  through  which  it  may  run. 

It  seems  to  me  that  a  railway  company  enjoys  its  right  of  way  as  everybody  and 
every  other  public  corporation  enjoys  its  privileges,  subject  to  the  public  use,  provided 
its  own  rights  are  not  impaired.  That  cannot  be  done,  and  that  it  is  not  proposed  to 
be  done  seems  clear  'to  me  and  that  this  will  be  for  a  great  ptiblic  advantage,  I  think  is 
beyond  dispute.    I  think  the  report  as  amended  ought  to  be  adopted: 

:\Ir.  Thom:  Mr.  Chairman,  I  merely  wish  to  say  a  few  words  in  connection  with 
this  matter.  I  hold  in  my  hand  the  laws  of  Virginia  just  alluded  to  by  the  gentleman 
from  Chesterfield  ( ^Ir.  Hancock  i  v-hich  requires  that  railroad  companies  shall  main- 
tain at  depots  and  stations  not  more  than  ten  miles  apart  telegraph  oflBces. 


2524 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


This  contract  with  the  Western  Union  Telegraph  Company  which  has  been  alluded 
to  here  is  utilized  for  the  purpose  of  performing  that  duty.  The  public  having  interest 
in  the  performance  of  that  duty.  These  telegraph  offices  ten  miles  apart  throughout  the 
sparsely  settled  country  are  not  self-supporting,  and  the  citizens  of  those  communities 
are  dependent  upon  this  railroad  contract  to  have  communication  with  the  outside 
world.  In  other  words,  the  railroad  company  is  using  this  right  of  way  in  establishing 
a  telegraph  office  by  contract  for  the  purpose  of  performing  a  public  duty.  Now,  sup- 
pose you  put  another  telegraph  line  right  alongside  of  that,  and  you  take  away  from 
the  telegraph  company  having  this  contract  the  opportunity  of  gleaning  what  it  can 
glean  from  the  poorly  paying  business  of  these  communities;  you  destroy  the  oppor- 
tunity on  the  part  of  the  railroad  company  to  make  this  contract  and  to  perform  this 
public  duty  without  itself  establishing  its  own  line  of  telegraph.  Is  it  necessary,  in 
the  public  interest,  that  that  should  be  done?  Here  is  a  very  inexpensive  strip  of  land 
lying  just  outside  of  the  right  of  way,  for  which  the  owners  would  be  glad  to  receive 
some  compensation,  and  yet  the  telegraph  company  if  required  to  go  upon  the  right  of 
way,  will  not  pay  the  private  owners  what  they  could  get  for  the  use  of  their  strip  of 
land,  and  will  take  from  the  railroad  company  something  that  will  impair  its  own 
opportunity  for  performing  its  public  duties.    Why  do  they  do  that? 

They  do  it  and  they  want  to  do  it  because  they  can  get  this  strip  of  right  of  way 
cheaper  than  they  tan  get  the  property  of  individuals,  and  why  can  they  get  it  cheaper? 
They  can  get  it  cheaper  because  they  propose  to  utilize  work  of  the  railroad  companies 
and  the  money  they  have  spent  in  preparing  their  right  of  way.  It  seems  to  me  that 
is  unfair.  There  is  nothing  here  to  prevent  the  telegraph  company  from  condemning 
any  land  along  the  right  of  way.  It  is  merely  an  effort  made  to  enable  them  to  come 
and  take  a  part  of  the  railroad's  property  and  thereby  impair  the  opportunities  that  a 
railroad  company  has,  at  moderate  expense,  to  perform  its  public  duties  in  reference  to 
the  establishment  and  maintenance  of  these  telegraph  offices. 

I  desire  to  ask  the  gentleman  from  Manchester  (Mr.  Ingram)  if  he  will  now 
accept  this  amendment  in  place  of  his:  After  the  word  "company"  in  line  19, 
insert  the  words  "if  any  such  other  point  be  available  for  that  purpose,  but  the  railroad 
company  shall  have  the  prior  right  to  their  entire  right  of  way  for  railroad  purposes," 
and  then  add,  as  a  separate  sentence  what  I  have  added  to  your  amendment. 

Mr.  William  A.  Anderson:  Mr.  Chairman,  there  is  a  question  of  far  more  impor- 
tance involved  here,  in  my  judgment,  than  the  interest  of  any  railroad  company  or  any 
telegraph  or  telephone  company,  and  that  is  the  safety  of  the  lives  and  persons  of 
travellers  upon  these  railroads. 

Under  the  law  of  this  Commonwealth  as  now  unamended  the  railroad  companies 
are  held,  very  properly,  to  the  strictest  accountability  and  the  strictest  responsibility 
for  keeping  the  right  of  way  in  such  condition  of  absolute  safety  that  human  life  shall 
not  be  endangered,  I  want  to  ask  the  gentlemen  of  this  committee  whether  the  section 
as  it  now  stands,  or  even  as  amended,  if  the  amendments  proposed  by  the  gentleman 
from  Norfolk  (Mr.  Thom)  and  the  gentleman  from  Manchester  (Mr.  Ingram)  are 
adopted,  will  give  adequate  protection  to  human  life.  We  propose  to  give  any  little 
telephone  company  that  may  be  organized  in  this  State  or  to  any  telegraph  company  the 
right  to  acquire  by  condemnation  the  ownership  and  control  of  a  part  of  a  right  of  way 
which  has  been  dedicated  to  purposes  of  transportation  of  the  goods  and  of  the  people 
of  the  State. 

Now,  just  suppose,  and  the  supposition  is  not  a  violent  one,  that  a  telephone  com- 
pany with  $5,000  or  $10,000  or  $20,000  capital  has,  by  condemnation  acquired  a  right  to 
erect  its  poles  and  to  construct  its  line  along  one  of  the  railways  of  this  State,  and  by 
reason  of  the  negligent  construction  of  its  line,  by  reason  of  some  imperfection  in  one 
of  its  poles,  or  the  negligent  and  careless  way  in  which  that  pole  has  been  placed  in  the 
ground,  that  pole  in  some  storm  is  blown  over  upon  one  of  the  railroad  tracks,  and  a  few 
minutes  afterward,  before  the  railroad  company,  with  the  utmost  diligence,  could  have 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


25-25 


discovered  that  its  track  was  obstructed  a  passenger  train  carrying  hundreds  of  people 
is  precipitated  into  an  abyss,  and  ten,  fifteen,  twenty  or  fifty  lives  are  lost,  could  you 
hold  the  railroad  company  liable  when  the  State  has  given  the  railroad  company  the 
right  to  do  this  thing?  And  where  would  be  the  redress  of  the  people  and  where  their 
protection  against  a  danger  of  this  kind,  which  is  not  a  phantom  of  the  imagination — 
which  will  menace  them  if  this  section  is  adopted  in  this  shape? 

I  am  not  here,  sir,  to  speak  for  the  railroad  companies  or  the  telephone  companies, 
■or  the  telegraph  companies,  but  for  the  security  and  safety  to  life  and  limb  and  to  the 
property  of  the  people  of  this  State. 

Mr.  Wysor:  I  will  answer  the  question  very  promptly.  The  Supreme  Court  has 
held  that  you  can  condemn  a  right  of  way  and  put  these  telephone  poles  upon  it.  Suppose 
one  of  them  blows  over  on  the  railroad  and  they  have  a  wreck,  does  not  the  very  same 
state  of  things  take  place?    \ou  are  arguing  against  the  decision  of  the  Supreme  Court. 

:\Ir.  William  A.  Anderson:  ]\Ir.  Chairman  I  do  not  want  to  increase  the  facilities 
for  that  sort  of  thing.  If  I  had  the  opportunity  I  should  like  to  amend  the  existing  law. 
I  do  not  want  to  put  it  in  this  Constitution  so  it  cannot  be  changed  by  the  Legislature 
and  protection  given  to  people  of  the  State;  and  that  is  what  you  will  do  if  you  will 
adopt  this  amendment  in  this  shape.  You  place  the  lives  and  the  limbs  of  the  people 
in  this  State  in  peril  by  giving  a  power  to  telephone  companies  to  occupy  these  great 
highways  and  erect  their  poles  upon  them  in  such  manner  as  they  may  see  proper. 

I  have  this  amendment  to  offer  for  the  consideration  of  the  committee,  and  I  hope 
they  will  consider  it. 

The  railroad  company  over  whose  right  of  way  the  right  to  construct  and  operate  a 
telegraph  or  telephone  line  shall  be  condemned,  shall  have  the  right,  at  the  expense  of 
the  telephone  company  or  telegraph  company  constructing  such  line,  to  cause  the  poles 
or  other  structures  erected  by  such  company  to  be  so  safely  and  securely  constructed 
and  erected  upon  its  right  of  way  as  not  to  endanger  the  safe  passage  of  its  trains  over 
such  railway. 

It  seems  to  me,  sir.  that  is  a  reasonable  restriction  upon  the  power  of  any  tele- 
graph or  telephone  company  that  may  acquire  a  right  of  way  over  the  right  of  way  of  a 
railroad  company. 

]vlr.  Turnbull:  Do  you  offer  that  as  an  amendment  to  the  amendment  of  the  gen- 
tleman from  Manchester  r:\Ir.  Ingram)? 

Mr.  William  A.  Anderson:  Yes,  sir.  or  to  come  in  at  the  end  of  his  amendment. 
T  do  not  think  it  is  inconsistent  with  the  amendment  of  the  gentleman  from  Manchester. 

]Mr.  Parks:    I  offer  this  as  a  substitute: 

Every  telegraph  and  telephone  company  that  has  erected  its  line  upon  the  right  of 
way  of  any  railroad  company  shall  keep  its  poles  and  fixtures  in  such  condition  as  not 
to  endanger  the  safe  passage  of  trains  over  any  such  roads,  and  if  such  railroad  com- 
pany shall  notify  such  telegraph  or  telephone  company  to  repair  or  replace  any  of  its 
poles  or  fijxtures,  and  such  telegraph  or  telephone  company  fails  to  make  such  repairs 
in  a  reasonable  time,  the  railroad  company  shall  make  such  repairs  at  the  cost  of  the 
telephone  or  telegraph  company. 

:\Ir.  Wiliam  A.  Anderson:  I  wish  to  say  that  if  that  was  the  only  remedy  given, 
and  there  should  be  a  telegraph  or  telephone  pole  in  such  condition  as  to  imminently 
endanger  a  railroad  by  being  likely  to  fall  at  any  instant,  the  railroad  company  would 
have  to  first  give  notice,  probably  one  day  or  ten  days'  notice,  to  the  telephone  com- 
pany, and  in  the  meantime  trains  might  be  wrecked.  The  railroad  company  should 
have  all  the  power  it  now  has  in  reference  to  the  poles  erected  by  the  Western  Union 
Telegraph  Company,  and  the  right  to  remove  them  at  any  time  and  put  strong  and  secure 
poles  in  their  place. 

:Mr.  Wescott:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  wish  very  briefly 
to  assign  some  reasons  why  I  shall  vote  to  strike  out  this  section,  in  accord  with  the 
motion  of  the  gentleman  from  Petersburg  (Mr.  Hamilton). 


2526  DEBATES  OF  THE  COJ^STITUTIOJs^AL  CONVENTIOIn  OF  VIRGINIA. 

It  seems,  gentlemen,  that  there  is  no  question  about  the  fact  that  the  existence  of 
this  section  in  the  committee's  report  is  the  outgrowth  of  the  unsuccessful  fight  made 
in  a  recent  session  of  the  General  Assembly  between  the  Postal  Telegraph  Company 
and  the  Western  Union  Telegraph  Company. 

I  am  profoundly  impressed  with  the  propriety,  Mr.  Chairman  and  gentlemen  of  the 
committee,  if  any  such  legislation  as  this  is  called  for  at  any  time,  of  leaving  the 
detail  of  such  legislation,  the  safeguarding  of  such  legislation,  to  the  General  Assem- 
bly, which,  by  its  appropriate  committee,  it  seems  to  me,  can  very  much  more  fittingly 
and  effectively  investigate  all  questions  of  propriety  and  all  safeguards  to  be  thrown 
around  such  legislation  than  can  a  body  of  this  sort.  It  seems  to  me,  further,  gentle- 
men, that  this  provision  is  obnoxious  to  an  objection  which  I  have  heretofore  felt  called 
upon  to  make,  that  it  is  in  the  nature  of  special  legislation  in  our  Constitution.  I  do 
object  most  vehemently  to  incorporating  in  our  fundamental  law  any  provision  what- 
ever that  is  susceptible  to  that  kind  of  construction. 

If  it  were  urged,  as  it  was  before  the  General  Assembly,  as  a  reason  for  incor- 
porating this  provision  in  our  Constitution,  that  it  would  give  some  relief  to  the  people 
of  the  State  against  this  great  octopus,  as  it  was  characterized  in  the  discussion  of  this 
measure  before  the  General  Assembly,  the  Western  Union  Telegraph  Company,  I  might 
yield  my  adherence  to  the  provision  contained  in  this  section;  but,  Mr.  Chairman  and 
gentlemen,  as.  has  been  said  upon  this  floor  in  that  controversy,  this  question  was 
directed  to  the  representative  of  the  Postal  Telegraph  Company,  Colonel  Mcintosh,  and 
this  disclosure  was  made:  "Is  it  not  a  fact  that  wheresoever  you  have  paralleled  the 
Western  Union  lines,  your  rates  of  toll  have  not  diminished  one  whit,  but  are  exactly 
the  same  as  those  of  the  Western  Union?"  and  the  answer  had  to  be  in  the  affirmative. 
That  question  was  followed  up  by  another  that  disclosed  this  state  of  facts:  "Colonel 
Mcintosh,  is  it  not  a  fact  that  there  is  a  written  agreement  between  the  Postal  Tele- 
graph and  the  Western  Union  Telegraph  Company  that,  wheresoever  you  shall  parallel 
them,  under  the  provision  which  it  is  sought  to  have  passed  by  the  General  Assembly, 
your  tolls  shall  prevail  exactly  on  a  par  with  those  of  the  Western  Union  already  pre- 
vailing?" and  an  affirmative  answer  was  given  to  that. 

So  that,  Mr.  Chairman  and  gentlemen  of  the  committee,  it  seems  to  me  if  this 
measure  will  grant  us  no  measure  of  relief,  if  there  is  any  justice  in  the  demand  for 
relief,  and  as  to  that  I  do  not  express  to  speak  advisedly,  as  against  the  rates  of  charges 
of  the  Western  Union,  I  can  see  no  reason  why  this  matter  should  be  treated  in  our 
fundamental  law. 

For  those  reasons  I  shall  vote,  when  the  question  comes  up,  in  favor  of  the  propo- 
sition of  the  gentleman  from  Petersburg  (Mr.  Hamilton)  to  strike  this  provision  from 
our  fundamental  law. 

Mr.  James  W.  Gordon:  Mr.  Chairman,  the  right  of  eminent  domain  is  one  of  the 
most  drastic  and  tyrannical  that  the  government  can  possibly  exercise.  When  a  rail- 
road runs  its  right  of  way  through  any  section  of  country,  it  is  presumed  to  condemn 
only  so  much  land  of  the  individual  citizens  as  is  necesary  for  that  purpose. 

I  shall  vote  for  this  provision  for  the  reason  that  it  can  never  be  made  operative 
except  under  those  circumstances  which  prove  that  the  railroad  company  has  taken  from 
the  citizens  more  property  than  is  necessary  for  its  purposes.  By  the  very  terms  of  this 
article  and  of  the  amendments  which  have  been  offered  to  it,  this  telephone  or  telegraph 
company  cannot  invade  that  right  of  way  until  it  is  shown  that  the  railroad  company 
does  not  need  the  right  of  way  for  its  own  railroad  purposes.  I  say,  why  should  the 
property  of  individuals  all  the  way  along  the  line  of  this  railroad  company  be  con- 
demned for  the  purposes  of  telegraph  and  telephone  lines,  if  there  is  room  upon  the 
right  of  way  of  the  railroad  company,  not  necessary  for  railroad  purposes,  which  is 
sufficient  to  accommodate  those  lines.  I  think  it  is  a  principle  which  we  will  admit  that 
it  is  not  a  wise  thing  that  this  right  of  eminent  domain  shall  be  exercised  any  further 
than  is  necessary  to  carry  out  public  purposes.    If  that  is  true,  then  these  railroad 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2527 


companies,  when  they  have  no  present  use  for  their  right  of  way  which  they  have  con- 
demned, ought  to  be  required  to  allow  other  public  service  corporations  to  run  their 
wires  along  that  right  of  way  ;  but  the  very  minute  the  railroad  comes  in  and  shows  that 
it  needs  its  entire  right  of  way,  at  that  moment  the  telephone  or  telegraph  company 
must  remove  its  wires  and  its  poles. 

I  shall  vote  for  it  on  that  broad  principle. 

The  Chairman:  The  question  is  on  agreeing  to  the  substitute  offered  by  the  gen- 
tleman from  Page  (Mr.  Parks)  to  the  amendment  offered  by  the  gentleman  from  Rock- 
bridge (Mr.  Anderson)  and  the  amendment  offered  by  the  gentleman  from  Manchester 

Olv.  Ingram). 

The  substitute  was  rejected. 

The  Chairman:  The  question  now  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Rockbridge  (Mr.  Anderson)  to  the  amendment  offered  by  the  gentle- 
man from  Manchester  (Mr.  Ingram). 

The  amendment  was  rejected;  there  being  on  a  division,  ayes  19,  noes  36. 

The  Chaimian:  The  question  now  recurs  on  the  amendment  offered  by  the  gentle- 
man from  Manchester. 

:\Ir.  Wysor:  Mr.  Chairman,  the  gentleman  from  Manchester  says  he  will  accept 
an  amendment  which  I  now  offer  in  lieu  of  his.  I  wish  to  insert  in  line  IS,  after  the 
word  '"lines,"  these  words:  "As  the  case  may  be,  off  of  the  right  of  way,  or  at  such 
other  point;"  and  in  line  15,  after  the  word  "purposes"  the  two  words  "all  are;"  so 
that  it  will  read  in  this  way: 

And  if.  at  any  time,  a  railroad  company  shall  need  for  railroad  purposes  all  or  any 
portion  of  its  right  of  way  occupied  by  a  telegraph  or  telephone  company,  such  telegraph 
or  telephone  company  shall,  upon  reasonable  notice  at  its  own  expense,  remove  its 
lines  as  the  case  may  be,  off  of  the  right  of  way  or  to  such  other  points  on  the  right  of 
way  as  may  be  designated  by  the  railroad  company. 

T\'hen  it  needs  all  of  its  right  of  way,  of  course  the  telephone  line  must  be  moved 
entirely  off  of  the  right  of  way.  T\Tien  it  does  not  need  it  all,  3-ou  remove  it  to  such 
point  on  the  right  of  way  as  the  railroad  company  may  designate. 

Mr.  Pettlt:  Who  is  to  determine  whether  the  railroad  company  needs  all  the  land 
that  is  condemned  for  it  or  not? 

Mr.  Wysor:  That  is  a  question  that  would  be  in  the  judgment  of  the  railroad,  but 
it  could  not  exercise  that  judgment  unreasonably*.  It  could  not  saj'  simply  that  it 
needed  all  of  its  right  of  way.  That  would  be  a  question  that  the  telephone  company 
might  be  able  to  litigate  with  it;  but  where  it  does  need  all  of  the  right  of  way,  and 
there  are  no  dotibt  instances  where  it  would,  then  the  telephone  line  must  be  moved  off 
the  right  of  way. 

I  v,ush  to  say  in  regard  to  this  measure  that  it  is  immaterial  to  me  whether  it  is 
stricken  out  or  kept  in.  I  think  myself  it  is  really  beneficial  for  the  railway  companies 
for  it  to  stay  in  there.  The  Supreme  Court  has  already  held  that  you  can  condemn  rail- 
way land  for  telephone  and  telegraph  purposes;  and  the  principle  is  well  settled  that 
it  is  perfectly  right  to  do  so.  Gentlemen  make  the  point  here  that  the  railroad  com- 
pany has  bought  these  lands  for  railroad  purposes.  Well,  I  own  my  farm  for  farm  pur- 
poses, and  3'ou  can  condemn  a  right  of  way  through  my  farm.  A  railroad  company 
simply  owns  and  when  it  buys  it  or  condemns  it,  and  it  is  perfectly  right  to  condemn  it 
for  another  easement  if  it  can  be  done. 

I  say  the  gentleman's  criticisms  of  the  decisions  of  the  Supreme  Court  are  not 
sound.  It  is  perfectly  right  and  proper  to  do  it.  They  bring  up  the  proposition  here 
that  poles  may  fall  on  the  road.  Well,  the  Western  Union  poles  may  fall  on  the  road 
too.  You  may  .condemn  a  right  of  way  for  poles  just  outside  of  the  railway  land,  and 
they  will  fall  on  it.  This  provision  does  not  hurt  the  railroad,  in  my  judgment,  unless 
it  interferes  with  the  contract  between  the  railroads  and  the  Western  Union  Telegraph 
Company.    If  you  want  to  give  the  Western  Union  a  monoply  of  railway  lines  for  its 


2528  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

telegraph  lines,  then  perhaps  you  might  pass  some  such  provision.  That  is  all  it  means. 
This  provision  is  doing  no  more  than  the  Supreme  Court  has  already  held  you  can  do. 
It  simply  says  the  Legislature  shall  pass  reasonable  provisions  for  the  condemnation 
of  corporate  property. 

The  gentleman  from  Accomac  (Mr.  Wescott)  says  it  is  a  piece  of  legislation.  It  is 
not  at  all.  It  simply  says  the  Legislature  shall  act  in  these  cases  and  pass  proper 
legislation  to  meet  the  particular  case.  That  is  not  a  very  injurious  provision  at  all 
unless  it  interferes  with  tlie  right  of  contract  between  the  railroad  companies  and  the 
Western  Union  Telegraph  Company.  The  gentleman  from  Norfolk  (Mr.  Thorn)  made 
the  point  that  railroad  companies  had  a  right  to  make  a  contract  with  the  Western 
Union  Telegraph  Company.  Well,  they  have,  but  they  have  no  right  to  limit  the  exer- 
cise of  eminent  domain  on  the  part  of  the  State  to  condemn  their  rights  of  way  for 
other  companies. 

Mr.  Thorn:    This  does  not  limit  it. 

Mr.  Wysor:  I  know  it  does  not.  I  say  it  is  immaterial  to  me  what  you  do  with  it. 
I  would  just  as  soon  have  it  stay  in  as  to  have  it  go  out;  but  I  offer  that  amendment. 

Mr.  Ingram:    I  accept  the  amendment  of  the  gentleman  from  Pulaski  (Mr.  Wysor). 

Mr.  R.  Walton  Moore:  I  understand  the  gentleman  from  Pulaski,  who  is  an  able 
and  influential  member  of  this  body,  to  say  that  it  is  immaterial  to  him  whether  this 
section  remains  in  the  article  or  disappears  from  it.  It  strikes  me  that  if  it  is  import- 
ant to  such  an  extent  as  to  justify  such  a  remark  by  the  gentleman  from  Pulaski,  it  is 
hardly  a  proper  provision  to  put  into  the  Constitution  of  the  State.  It  does  seem  to  me 
that  the  argument  presented  by  my  friend  from  Accomac  is  very  convincing,  and  that  by 
adopting  this  provision  we  may  be  taking  up  a  controversy  that  belongs  to  the  legisla- 
tive branch  of  the  government,  and  we  may  be  accumulating  doubts,  diflSculties,  an- 
tagonisms and  controversy  in  the  courts  which  will  lead  to  great  trouble,  and  which 
should  not  be  produced  by  any  constitutional  provision. 

Mr.  Parks:  I  want  to  say,  sir,  that  I  do  not  represent  the  Postal  Telegraph  Com- 
pany or  any  other  telegraph  company,  or  any  telephone  company.  I  am  not  acting  in 
this  matter  as  the  cudgel  of  the  Postal  Telegraph,  or  any  other  telegraph  or  telephone 
company.  I  am  acting  in  my  representative  capacity  on  a  question  that  I  believe  is 
right  and  proper.  I  am  trying  to  secure  to  the  people  of  the  State  of  Virginia  what,  in 
my  judgment,  they  ought  to  have,  under  the  ruling  of  the  Supreme  Court  of  the  State 
of  Virginia.  The  court  has  said  that  the  right  of  way  of  a  railroad  company  may  be 
condemned  for  the  use  of  telegrap'h  and  telephone  companies;  but  under  the  law  as  we 
have  it,  there  is  no  way  by  which  that  condemnation  can  be  had,  because  the  court  holds 
that  the  right  of  way  is  a  unity,  an  entire  thing,  and  you  cannot  condemn  it  by  piece- 
meal. It  is  not  legislation,  it  is  simply  putting  into  the  Constitution,  in  response  to  the 
decision  of  the  Court  of  Appeals,  an  instruction  to  the  Legislature,  that  the  Legislature 
shall,  by  general  law,  of  uniform  operation  provide  for  and  economically  regulate  these 
matters.  It  seems  to  me  it  is  perfectly  right  It  is  perfectly  legitimate  and  it  will  not 
do  to  whistle  this  thing  down  the  wind,  because  the  gentleman  from  Pulaski  says  he  does 
not  care  whether  it  stays  in  or  goes  out.  The  question  is,  is  it  right,  is  it  just,  is  it 
proper,  is  it  in  the  interest  of  the  people  of  the  State. 

They  say  the  Postal  Telegraph  Company  will  contract  with  the  Western  Union 
Company  to  have  the  same  rates.  Then  this  corporation  commission,  under  this  Con- 
stitution, can  regulate  that,  and  regulate  the  charges  of  the  telegraph  and  telephone 
companies,  just  as  well  as  they  can  regulate  the  charges  of  a  railroad  company.  I  sub- 
mit that  this  provision  is  a  fundamental  principle,  based  upon  the  decision  of  the 
Supreme  Court  of  the  State  of  Virginia,  establishing  a  right;  and  that  there  is  no  way 
under  the  law  at  present  by  which  that  right  can  be  enforced. 

Mr.  Thorn:  If  it  be  true  that  this  commission  can  control  the  rates,  what  benefit 
will  the  people  of  Virginia  derive  Vv^hen  the  element  of  competition  as  to  rates  taken 
away? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2529 


Mr.  Parks:  We  will  take  both.  We  will  get  it  in  one  way  or  the  other.  We  will 
be  like  the  nigger's  coon  dog — we  will  catch  the  coon  coming  and  going. 

Mr.  Pettit:  I  agree  with  the  declaration  of  the  gentleman  from  Manchester,  that 
we  would  he  doing  the  railroad  companies  a  great  injustice  under  this  provision.  The 
Legislature  of  the  State  has  required,  as  I  understand  it,  that  the  railroad  company 
shall  have  telegraph  lines  along  their  railroad  lines.  They  have  been  compelled  by  the 
action  of  the  Legislature  to  erect  or  have  erected  and  established,  telegraph  lines  along 
their  railroads.  It  is  just  as  much  their  duty  to  maintain  those  telegraph  lines,  and  to 
require  them  to  be  established,  as  it  is  their  duty  to  maintain  the  railroads  in  good  con- 
dition. 

Will  any  gentleman  here  contend  that  this  Convention  or  any  Legislature  could 
permit  another  railroad  company  to  take  a  part  of  the  right  of  way  of  a  railroad  com- 
pany condemned  for  the  purpose  of  running  another  railroad  along  the  line  of  road 
already  established?  What  is  the  difference  in  principle?  You  have  required  them  to 
establish  and  maintain  a  railroad  line,  and  land  has  been  condemned  for  their  purposes 
as  a  railroad  corporation.  Will  anybody  contend  that  the  Constitution  or  any  ordinary 
Legislature  can  give  to  another  railroad  company  the  power  to  establish  a  railroad  line 
along  and  by  the  side  of  the  road  already  established,  and  upon  the  land  condemned  for 
the  purposes  of  the  railroad  already  established? 

I  suppose  not;  and  yet  does  not  the  same  principle  apply  to  a  telegraph  company? 
You  have  required  the  railroad  companies  to  erect  and  maintain  a  telegraph  line  along 
the  line  of  their  railroad,  just  as  you  have  required  them  to  keep  their  railroad  in  order 
and  to  maintain  it.  I  think  you  have  no  more  right,  in  justice,  to  do  one  than  you  have 
to  do  the  other.  I  think  it  is  ultra  vires  and  unjust  for  you  to  grant  a  power  which 
might  require  one  company  to  give  to  another  company  the  right  to  build  a  road  of  the 
same  character  along  and  by  the  side  of  it.  I  think  it  would  be  unjust,  and  I  hope  this 
provision  will  be  stricken  out  of  this  report. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Manchester,  as  amended  by  the  gentleman  from  Pulaski,  which  amend- 
ment has  been  accepted. 

The  amendment  was  agreed  to. 

Mr.  Eggleston:  I  would  like  to  offer  an  amendment  to  insert  in  line  5,  after  the 
words  "  telegraph  lines  "  the  words  "  chartered  by  this  State." 

It  seems  to  me,  Mr.  Chairman,  that  this  section,  as  reported  by  the  committee  un- 
doubtedly gives  to  foreign  corporations  the  right  to  acquire  property  by  condemnation 
in  the  State  of  Virginia.  I  do  not  suppose  it  was  ever  contemplated  that  that  should  be 
done.  I  cannot  conceive  that  this  Convention,  or  this  committee  acting  for  the  Con- 
vention, could  give  their  consent  to  a  provision  which  would  confer  upon  a  foreign  cor- 
poration any  such  power.  As  far  as  the  Western  Union  Telegraph  Company  and  the 
Postal  Telegraph  Company  are  concerned,  they  get  their  charters  from  Congress.  If, 
under  those  charters,  they  have  that  right,  we  cannot  interfere  with  them;  but  I  do  not 
think  that  we  should  throw  down  the  bars  and  say  to  any  foreign  corporation  whatever: 
You  can  come  into  the  State  of  Virginia  and  have  the  right  to  acquire  property  by  con- 
demnation. I  do  not  think  we  ought  to  throw  open  to  them  this  right  of  eminent  domain, 
under  a  general  provision  in  our  Constitution.  If,  in  a  particular  case,  the  General 
Assembly  sees  fit  to  confer  it,  with  necessary  restrictions  on  the  method  in  which  it 
shall  be  executed,  it  may  be  done,  but  I  can  never  vote  for  a  provision  which  will  confer 
upon  any  foreign  corporation  the  right  to  acquire  property  in  the  State  of  Virginia  by 
condemnation.  For  that  reason  I  move  to  amend  by  inserting  the  words  "  chartered  by 
this  State  "  after  the  words  "  telephone  companies." 

The  amendment  was  agreed  to. 

Mr.  Thom:  I  move  to  add,  at  the  end  of  the  section,  the  following:  "No  railroad 
company  whose  right  of  way  has  been  condemned,  as  herein  provided,  shall  be  liable  for 
accident  or  injury  caused  by  the  telephone  or  telegraph  company,  or  the  establishment 
or  existence  of  its  works  on  the  right  of  way  of  the  railroad  company." 


2530 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


The  amendment  was  agreed  to;  there  being  on  a  division,  ayes  28,  noes  27. 

Mr.  Hamilton:  I  hope  now  that  it  will  be  the  pleasure  of  this  committee  to  strike 
out  the  entire  section.  The  amendments  that  have  been  made  have  bettered  it  a  great 
deal,  and  take  away  some  of  the  dangers;  but  there  is  nothing  in  the  section  that  ought 
to  be  in  this  Constitution,  and  I  hope  the  members  of  this  body  will  take  that  view. 

Mr.  Meredith:  I  move  to  reconsider  the  vote  by  which  the  amendment  of  the  gen- 
tleman from  Norfolk  (Mr.  Thorn)  was  adopted. 

I  submit  that  we  would  defeat  the  whole  object  of  this  provision  if  we  say  that  the 
railroad  company  shall  not  be  liable,  no  matter  how  much  negligence  it  may  have  been 
guilty  of,  or  how  much  it  may  have  helped  the  telephone  or  telegraph  company  in  the 
careless  and  negligent  way  in  which  it  has  erected,  constructed  and  maintained  its  poles. 
Under  this  amendment  the  railroad  company  is  declared  to  be  free.  It  is  simply  offering 
to  them  an  incentive  to  negligent,  careless  and  reckless  disregard  of  life. 

In  regard  to  this  measure  I  suppose  I  may  be  permitted  to  say  a  word.  I  believe 
that,  if  this  amendment  is  adopted  it  ought  to  defeat  the  measure.  Those  of  us  who 
are  in  favor  of  the  measure  should  undoubtedly  vote  against  the  proposition  of  the  gen- 
tleman from  Norfolk.  The  simple  proposition  is  that  there  now  exists  the  right  to  con- 
demn this  land  for  the  purposes  of  the  telephone  or  telegraph  company,  and  the  purpose 
of  this  provision  is  to  make  that  right  easy  of  execution.  The  whole  proposition  is  to 
add  to  the  facility  with  which  a  right  now  recognized  may  be  exercised,  so  that  instead 
of  going  into  forty  counties  in  the  State  and  beginning  condemnation  proceedings  in 
each  county,  the  entire  matter  may  be  settled  in  one  proceeding.  In  some  of  these 
counties,  perhaps  the  proceedings  might  be  completed  a  couple  of  weeks,  and  in  another 
county,  where  a  fight  might  be  made,  it  might  take  five  or  six  months.  The  capital  of 
the  company  invested  is  tied  up  in  the  other  county,  where  the  proceedings  have  been 
concluded.   We  say  this  can  be  done  as  a  unit,  by  instituting  proceedings  in  one  county. 

If  there  is  anything  well  recognized  in  the  law  it  is  that  a  railroad  company  must 
be  treated  as  a  unit.  It  demands  that  in  regard  to  the  system  of  taxation  imposed  on 
it.  It  is  treated  in  that  way  in  regard  to  their  reasonable  rules  and  regulations.  You 
never  undertake  to  apply  a  reasonable  rule  or  regulation  to  a  company  that  you  do  not 
treat  it  as  an  entirety.  When  you  come  to  condemning  its  property  you  want  to  treat 
it  as  a  unit,  and  recognize  that  it  has  property  running,  perhaps,  through  twenty-five  oi* 
fifty  counties  in  this  State.  Our  simple  proposition  is  that  instead  of  going  into  twenty- 
five  or  fifty  counties,  and  instituting  proceedings  in  each,  you  may  start  the  proceeding 
in  one  county,  and  the  commissions  appointed  may  condemn  throughout  the  entire  State. 

The  question  here  is  whether  we  shall  require  the  Legislature  to  do  what  it  has 
not  done  in  this  matter;  whether  we  shall  say  that  we  desire  these  facilities  to  be  given. 

I  respectfully  submit  that  we  ought  to  reconsider  the  amendment  of  the  gentleman 
from  Norfolk. 

Mr.  Wescott:  Mr.  Chairman  and  gentlemen  of  the  committee,  it  is  with  unfeigned 
difiidence  that  I  rise  to  dissent  from  the  view  just  expressed  by  the  gentleman  from 
Richmond,  as  to  the  propriety  of  the  amendment  of  the  gentleman  from  Norfolk,  and  the 
motion  to  reconsider  which  has  now  been  made  by  him.  It  seems  to  me  there  is  no 
question  whatever  of  the  railroad's  negligence  injected  into  this  amendment.  I  must 
think  that,  in  the  confusion  of  the  body,  the  gentleman  did  not  attentively  hear  or  listen 
to  the  reading  of  this  amendment:  "No  railroad  company  whose  right  of  way  has  been 
condemned,  as  herein  provided,  shall  be  liable  for  accident  or  injury  caused  by  the  tele- 
graph or  telephone  company " — not  by  the  negligence  of  the  common  carrier,  but 
"  caused  by  the  telegraph  or  telephone  company,"  or  the  establishment  or  existence  of 
its  works  on  the  right  of  way  of  the  railroad  company. 

Mr.  Meredith:    Suppose  the  railroad  company  is  also  guilty  of  negligence? 

Mr.  Thom:    Then  it  would  be  liable  for  its  own  negligence. 

Mr.  Meredith:  Not  at  all;  if  the  act  of  the  telegraph  or  telephone  company  caused 
the  injury,  although  the  railroad  company  may  have  participated  in  the  negligence, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  2531 

and  may  have  seen  the  pole  falling  that  caused  the  injury,  for  example.  You  relieve 
the  railroad  company  from  any  responsibility,  under  that  amendment. 

Mr.  Wescott:  I  submit  that  is  not  a  fair  construction  of  the  law.  Their  negligence 
would  not  be  the  proximate  cause  of  the  injury.  The  test  as  to  whether  or  not  the  rail- 
road company  would  he  relieved  from  its  liability  depends  upon  whether  or  not  the 
negligence  of  the  railroad  company  was  the  proximate  cause  of  the  injury. 

Mr.  Barbour:  May  I  interrupt  the  gentleman?  I  want  to  ask  you  if,  under  a  num- 
ber of  circumstances,  the  railroad  companies  are  not  liable  as  insurers. 

Mr.  Wescott:  I  am  coming  to  that  very  question.  I  submit  that  if  the  railroad 
company  is  liable  as  an  insurer,  no  additional  liability  should  be  added  by  putting  this 
provision  in  our 'Constitution,  because  it  is  incompatible  with  the  principles  of  abstract 
right  and  eternal  justice.  We  are  seeking  to  force  upon  them  another  instrumentality 
along  their  right  of  vray,  which,  it  is  recognized  may  result  in  increased  liability  and 
increased  risk.  I  am  glad  the  gentleman  asked  me  that  question,  because  it  seems  to 
me  to  expose,  as  nothing  else  could,  the  impropriety  and  questionable  character  of  this 
provision. 

What  is  the  principle  underlying  this  section  of  the  majority  report  of  this  com- 
mittee? Do  the  people  derive  any  benefit  from  it?  Not  at  all.  Are  the  people  of  the 
great  State  of  Virginia  concerned  in  the  question  of  the  facility  with  which  one  of  these 
gigantic  corporations  can  grapple  with  another  and  force  that  other  into  a  submission 
to  the  erection  of  its  line  along  a  right  of  way  which  has  been  condemned  for  its  uses? 
What  is  the  additional  right  that  is  granted  and  how  can  it  be  considered  from  any 
standpoint,  to  be  fundamental?  The  only  benefit  said  to  be  conferred  is  the  right,  where 
the  railroad's  right  of  way  runs  throughout  the  State,  to  begin  its  condemnation  pro- 
ceedings in  one  county  and  project  that  proceeding  throughout  the  entire  land.  There 
exists  to-day  the  very  right  which  is  created  under  this  provision,  under  the  decision  of 
our  Court  of  Appeals  already  adverted  to.  These  companies  have  the  right  now  to 
institute  condemnation  proceedings  in  each  county — it  is  true.  I  have  grave  doubt  as 
to  the  propriety  of  enacting  any  legislation  which  will  take  away  from  the  citizens  of 
a  county  the  right  to  pass  upon  this  question  of  condemnation  and  give  that  right  to 
commissioners  of  a  single  county  appointed  by  the  court  conducting  the  proceeding. 
The  only  object  attained  is  the  saving,  to  some  extent,  of  costs  between  one  of  these 
gigantic  corporations  in  its  contest  with  another.  What  benefit  accrues  to  the  people 
of  the  State,  to  lead  us  to  inject  this  provision  into  our  fundamental  law,  for  the  relief 
of  a  gigantic  corporation,  so  that  it  may  have  a  greater  facility  in  the  conduct  of  its 
condemnation  proceedings  against  another  corporation. 

No  benefit  whatever  will  come  to  the  people.  Is  there  any  gentleman  upon  this 
floor  who  believes  that  any  other  telephone  company  or  any  local  company  would  have 
been  represented  in  this  controversy,  if  it  had  not  been  for  the  struggle  between  these 
two  competing  telegraph  lines.  If  it  is  a  foregone  conclusion,  if  it  is  a  definite  and  well 
ascertained  fact  that  no  benefits  are  to  accrue  to  the  people,  if  there  is  a  contract  in 
writing  between  these  two  companies  that  the  rates  now  charged  by  the  Western  Union 
Telegraph  Company  shall  be  maintained,  where  is  the  inducement  for  us  to  act?  WTiat 
measure  or  character  of  relief  can  possibh-  ensue  to  the  people? 

It  seems  to  me  that  the  gentlemen  from  Page  has  answered  very  fully  his  own  argu- 
ment. He  says  that  this  commission  has  power  to  control  these  rates.  If  it  has,  is  there 
any  reason  why,  from  the  standpoint  of  the  people,  the  reduction  which  is  supposed  to 
come  from  competition  should  be  annulled  by  this  provision?  This  is  not  a  matter  in 
which  the  people  are  interested. 

I  submit  that  this  amendment  is  proper,  just  and  right,  and  if  this  provision  goes 
into  the  Constitution,  it  ought  to  go  in  with  the  amendment  offered  by  the  gentleman 
from  Norfolk.  I  think,  however,  that  it  shows  conclusively  the  great  impropriety  of 
the  insertion  of  any  such  provision  in  our  Constitution  at  all. 

The  Chairman:    The  question  is  upon  the  motion  of  the  gentleman  from  Richmond 


2532  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

(Mr,  Meredith)  to  reconsider  the  vote  by  which  the  amendment  of  the  gentleman  from 
Norfolk  was  adopted. 

The  motion  to  reconsider  was  rejected,  there  being,  on  a  division,  ayes  27,  noes  35. 

Mr.  Pollard:  Mr.  Chairman,  I  desire  to  offer  an  amendment  to  the  amendment 
offered  by  the  gentleman  from  Norfolk,  by  inserting  the  words  "  without  negligence  on 
its  part,"  so  as  to  meet  the  objection  that  has  been  urged  by  my  colleague  from  Rich- 
mond.  I  should  like  to  have  the  Secretary  read  it  as  it  will  appear. 

No  railroad  company  whose  right  of  way  has  been  condemned  as  herein  provided, 
shall  be  liable  for  accident  or  injury  caused,  without  negligence  on  its  part,  by  the  tele- 
phone or  telegraph  company,  etc. 

The  Chairman:    The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  the  city  of  Richmond. 
The  amendment  was  agreed  to. 

The  Chairman:    The  question  now  is  upon  the  motion  of  the  gentleman  from  Peters- 
burg (Mr.  Hamilton)  to  strike  out  Section  8. 
The  motion  to  strike  out  was  agreed  to. 
The  Chairman:    The  Secretary  will  read  Section  10. 

Sec.  10.  No  transportation  or  transmission  company  doing  business  in  this  State 
shall  grant  to  any  member  of  the  General  Assembly,  nor  to  any  State,  county,  district 
or  municipal  officer  (except  to  the  members  and  officers  of  the  State  corporation  com- 
mission for  their  personal  use  during  their  terms  of  office)  any  free  pass,  free  transpor- 
tation, or  any  rebate  or  reduction  in  the  rates  charged  by  such  company  to  the  general 
public  for  like  service.  For  violation  of  the  provisions  of  this  section  the  offending 
company  shall  be  liable  to  such  penalities  as  may  be  prescribed  by  law;  and  any  such 
officer  or  member  of  the  General  Assembly  who  shall,  during  his  term  of  office,  accept 
the  benefit  of  any  such  rebate  or  reduction,  or  the  use  of  any  such  free  pass  or  free 
transportation,  as  is  prohibited  by  this  section,  shall  thereby  forfeit  his  office,  and  be 
subject  to  such  further  penalities  as  may  be  prescribed  by  law. 

The  Chairman:    Are  there  any  amendments  to  Section  10? 

Mr.  Braxton:  In  line  4  there  is  a  typographical  error.  In  the  word  "except"  the 
"  e  "  is  left  out.  In  line  6  I  move  to  insert  the  word  "  frank,"  which  applies  to  free  ser- 
vice of  transmission  companies.  The  same  reason  which  exists  for  our  prohibiting  free 
service  of  transportation  would  apply  to  the  free  service  of  transmission  companies. 
It  was  a  mere  inadvertence  that  the  word  "frank"  was  left  out  in  line  6,  after  the  word 
"  any." 

At  the  end  of  the  section  I  move  to  insert  these  words:  "This  section  shall  not 
prevent  any  street  railway  company  from  transporting  free  of  charge  any  member  of 
the  police  force  or  fire  department  while  in  the  discharge  of  his  official  duties." 

I  presume  there  will  be  no  objection  to  that. 

Mr.  Meredith:  The  only  objection  to  that  is  that  the  section  renders  these  parties 
liable  to  punishment  for  giving  free  passes,  and  it  will  be  impossible  to  tell  whether 
the  members  of  the  police  and  fire  departments  were  in  the  discharge  of  their  duties 
or  not. 

Mr.  Braxton:  There  is  no  penalty  except  such  as  may  be  prescribed  by  law.  It 
says  that  "For  violations  of  the  provisions  of  this  section  the  offending  company 
shall  be  liable  to  such  penalties  as  may  be  prescribed  by  law." 

The  Chairman:  The  question  is  on  agreeing  to  the  amendments  offered  by  the 
gentleman  from  Augusta. 

The  amendments  were  agreed  to. 

Mr.  Petitt:  I  move  to  strike  out  the  phrase,  commencing  in  line  4  and  ending  in 
line  6,  "except  to  members  and  officers  of  the  State  corporation  commission  for  their 
personal  use  during  their  terms  of  office,"  the  effect  of  which  will  be  to  put  these  mem- 
bers and  officers  of  the  State  corporation  commission  upon  the  same  footing  exactly 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2533 

as  Section  10  puts  all  other  officers  of  the  State.  I  suppose,  and  of  course  that  is  the 
argument  upon  which  this  section  proceeds,  that  the  object  of  the  provision  is  to  prevent 
public  officers  from  being  seduced  from  the  proper  discharge  of  their  duties  by  the 
gracious  favors  of  the  railroad  companies  extended  to  them  by  granting  free  passes. 
That  is  the  underlying  motive,  as  I  understand,  of  this  section,  or  at  least  of  this  pro- 
vision of  it.  It  strikes  me  that  of  all  the  officers  of  the  State,  it  is  most  objectionable 
that  they  should  be  permitted  to  extend  these  favors  to  this  commission,  -which  is  erected 
and  constructed  for  the  purpose  of  controlling  them  in  the  discharge  of  their  duties.  A 
judge  of  a  court  may  have  to  pass  upon  the  action  of  these  railroad  companies,  but  how 
can  the  sheriff  of  the  county,  or  any  other  of  the  minor  officers  of  the  county  have  any- 
thing to  do  with  respect  to  the  railroad  companies  that  would  make  it  improper  for 
the  company  to  grant  passes  to  those  minor  officers.  I  say  that  the  motive  of  this  pro- 
vision applies  with  stronger  force  to  the  railroad  commissioners  than  to  any  other  offi- 
cers of  the  State.  I  move,  therefore,  to  strike  out  the  exception  made  m  favor  of  the 
railroad  commission. 

Mr.  Braxton:  I  am  unable  to  accept  the  amendment  offered  by  the  gentleman  from 
Fluvanna,  and  I  think  perhaps  the  amendment  was  offered  under  a  misapprehension 
on  his  part.  The  duties  of  the  railroad  commission  require  one  or  more  of  them  to  be 
constantly  traveling  around  the  State.  One  of  their  duties,  and  one  of  their  most  im- 
portant duties,  is  to  keep  themselves  constantly  informed  as  to  the  physical  condition 
of  the  various  roads  in  the  State,  with  a  view  to  ascertaining  whether  they  are  in  such 
a  condition  as  conduce  to  the  safety  and  welfare  of  the  public.  That  is  the  law  to-day, 
and  that  is  the  law  also  under  another  section.  If  the  State  had  to  pay  for  keeping 
one,  two  or  three  of  these  gentlemen,  and  possibly  some  of  their  assistants,  constantly 
traveling,  the  cost  to  the  State  would  be  tremendous.  It  is  therefore  provided  that  it  shall 
be  the  duty  of  the  railroad  company  to  transport  them  free  of  charge,  when  they  are  in 
performance  of  their  official  duties,  because  a  part  of  that  duty  is  to  ride  about  on  the  rail- 
roads. It  would  cost  thousands  of  dollars  every  year  if  they  had  to  pay  their  traveling  ex- 
penses, and  this  exception  is  made  in  order  to  avoid  that.  The  railroad  companies  are  re- 
quired to  transport  them  free  of  charge,  not  as  a  favor,  but  as  a  part  of  their  public  duty. 
The  passes  they  will  give  them  will  not  be  given  as  they  are  given  to  other  officers,  but 
giving  of  them  will  be  made  obligatory  by  law.  It  is  a  part  of  their  public  duty  to  do  It; 
they  are  not  given  of  their  own  volition.  I  hope,  in  view  of  this  explanation,  that  my  friend 
will  withdraw  his  amendment.  If  I  have  not  been  fortunate  enough  to  satisfy  his  mind,  I 
trust  the  committee  will  not  adopt  the  amendment.  This  is  a  matter  that  was  carefully 
considered  by  your  committee,  and  these  words  were  put  in  after  mature  consideration 
on  their  part. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Fluvanna. 

The  amendment  was  rejected. 

The  Chairman:  Are  there  any  other  amendments  in  Section  10?  If  not,  the  Secre- 
tary will  read  Section  11. 

Mr.  Braxton:  Before  Section  11  is  read,  I  would  like  to  ask  the  committee  to  in- 
dulge me  by  passing  it  temporarily.  There  are  some  gentlemen  who  wish  to  discuss  it 
who  are  not  prepared  to  go  into  the  matter  now.  It  will  not  delay  matters  at  all,  and 
I  ask  that  we  proceed  to  the  consideration  of  Section  12. 

The  Chairman:  If  there  is  no  objection,  that  will  be  taken  as  the  sense  of  the  com- 
mittee.   The  Secretary  will  read  Section  12. 

Sec.  12.  No  foreign  corporation  shall  be  authorized  to  carry  on,  in  this  State,  the 
business,  nor  to  exercise  any  of  the  powers  or  functions  of  a  public  service  corporation, 
nor  be  permitted  to  do  anything  which  domestic  corporations  are  prohibited  from  doing, 
nor  be  relieved  from  compliance  with  any  of  the  requirements  made  of  domestic  cor- 
porations by  the  Constitution  and  laws  of  this  State,  where  the  same  can  be  made  appli- 
cable to  such  corporation.    But  this  section  shall  not  effect  any  public  service  corpora- 


2534 


DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


tion  whose  line  or  route  extends  across  the  boundary  of  this  Commonwealth,  nor  pre- 
vent any  foreign  corporation  from  continuing  in  such  business  as  it  may  be  actually 
engaged  in,  within  this  State,  when  this  Constitution  goes  into  effect;  but  any  such 
foreign  public  service  corporation,  so  engaged,  shall  not  be  authorized  to  hereafter  acquire, 
lease,  use  or  operate,  within  this  State,  any  public  or  municipal  franchise  in  addition 
to  such  as  it  may  own,  lease,  use  or  operate  when  this  Constitution  goes  into  effect. 
The  property,  within  the  State,  of  foreign  corporations  shall  always  be  subject  to  attach- 
ment, the  same  as  that  of  non-resident  individuals. 

Sec.  13.  The  right  of  the  Commonv/ealth,  through  such  instrumentalities  as  it  may 
select,  to  prescribe  and  define  the  public  duties  of  all  common  carriers  and  public  service 
corporations,  to  regulate  and  control  such  carriers  and  corporations  in  the  performance 
of  their  public  duties,  and  to  iix  and  limit  their  charges  therefor,  shall  never  be  sur- 
renedered  nor  abridged. 

Sec.  14.  The  credit  of  the  State  shall  not  be  granted  to,  or  in  aid  of,  any  corpora- 
tion, nor  shall  the  State  hereafter  subscribe  to  or  become  interested  in  the  stock  of  any 
corporation. 

Sec.  15.  The  General  Assembly  shall  require  annual  reports  to  be  made  to  the  State 
corporation  commission,  of  their  affairs  and  condition,  by  all  corporations  doing  busi- 
ness in  this  State,  the  character  or  extent  of  whose  business  shall  render  publicity  in 
their  affairs  essential  or  conducive  to  the  public  welfare. 

Sec.  16.  The  General  Assembly  shall  enact  laws  preventing  all  trusts,  combinations 
and  monopolies,  inimical  to  the  public  welfare. 

Sec.  17.  The  free  right  to  build  and  operate  railroads,  parallel  to  any  other  railroads 
previously  established,  shall  never  be  abridged  nor  denied  to  any  railroad  company 
hereafter  chartered  by  this  State;  but  this  section  shall  not  deprive  the  General  As- 
sembly of  the  right  to  prevent  (by  statute,  repealable  at  the  pleasure  of  the  General 
Assembly)  any  railroad  from  being  built  parallel  to  the  present  line  of  the  Richmond 
Fredericksburg  and  Potomac  Railroad. 

Mr.  Braxton:     I  will  ask  also  that  Section  18  be  passed  for  the  present. 
The  Chairman:    If  there  is  no  objection,  that  will  be  taken  as  the  sense  of  the 
committee. 

The  Secretary  will  read  Section  19. 

Sec.  19.  All  existing  charters  or  grants  of  corporate  powers,  under  which  an  organi- 
zation has  in  good  faith  taken  place  before  this  Constitution  goes  into  effect,  and  the 
corporate  powers  of  all  corporations  heretofore  existing,  but  which  have  had  no  bona 
fide  organized  existence  since  the  first  day  of  January,  1902,  are  hereby  revoked. 

Are  there  any  other  amendments  to  the  section? 

Mr.  Braxton:  If  there  are  no  amendments  to  the  section,  I  mave  that  Section  2 
now  be  taken  up. 

The  Chairman:    The  Secretary  will  read  Section  2. 

Sec.  2.  The  creation  of  corporations  and  the  extension  and  amendments  of  charters 
(whether  heretofore  or  hereafter  granted)  shall  be  provided  for  by  general  laws,  uni- 
form as  to  the  class  of  corporations  to  which  they  relate,  and  no  charter  shall  be  granted, 
amended  or  extended  by  special  act,  nor  shall  authority  in  such  matters  be  conferred 
upon  any  tribunal  or  officer,  authorized  to  grant,  amend  or  extend  charters,  further  than 
to  ascertain  that  the  applicants  have,  by  complying  with  the  requirements  of  the  law, 
entitled  themselves  to  the  charter,  amendment  or  extension  applied  for.  Such  general 
laws  may  be,  from  time  to  time,  amended  or  repealed  by  the  General  Assembly;  and  all 
charters  or  amendments  of  charters  now  existing  and  revocable  or  hereafter  granted  be 
extended,  shall  be  repealable  at  any  time  by  special  act  at  the  pleasure  of  the  General 
Assembly.  Provision  shall  be  made  by  general  laws  for  the  voluntary  surrender  of  its 
chrter  by  any  corporation,  and  for  the  forfeiture  of  charters  for  non-user  of  miss-uses. 
The  General  Assembly  shall  not,  by  special  act,  regulate  the  affairs  of  any  corporation, 
nor  give  it  any  special  rights  or  privileges. 

Mr.  Braxton:  I  move  that  in  line  20,  after  the  word  "nor,"  the  words  "by  such 
act"  be  inserted.  The  language  of  the  provision  will  then  read:  "The  General  As- 
sembly shall  not  by  special  act,  regulate  the  affairs  of  any  corporation  nor,  by  such  act, 
give  it  any  special  rights  or  privileges." 

The  amendment  was  agreed  to. 


DEBATES  OE  THE  COXSIITUIIOXAL  COXVE^:TIO^'  OE  VIEGIXIA. 


•2535 


Mr.  Thorn:  I  would  like  the  chairman  of  ihe  committee  and  the  members  of  the 
committee  to  strike  oiit  the  syllable  of  the  last  word  in  line  3  and  the  whole  of  line  4, 
Section  2;  in  other  words,  to  strike  out  the  words  "'■'uniform  as  to  class  of  corporations 
to  vrhich  they  relate,"'  so  that  the  act  would  read:  ''  The  creation  of  corporations  and 
the  extension  and  amendment  of  charters  whether  heretofore  or  hereafter  granted  shall 
he  provided  for  by  general  laws,  and  no  charter  shall  be  granted,  etc. 

3Iy  reasons  for  offering  that  amendment  are  these:  This  article  provides  not  only 
for  the  creation  of  corporations,  but  for  the  extension  and  amendment  of  their  charters. 
Every  important  corporation  in  the  State  of  Virginia  has  now  a  special  charter  contain- 
ing special  provisions,  provisions  not  common  to  other  corporations  of  the  same  class. 
To  require  that  when  any  amendmeni:  shall  be  made  or  any  extension  of  the  charter  shall 
be  granted,  it  shall  be  done  under  laws  which  shall  be  uniform  as  to  the  class  of  cor- 
porations to  which  they  relate,  wotild  be  introducing  into  the  amendment  and  exten- 
sion of  charters  an  element  which  might  hereafter  be  found  to  be  exceedingly  dangerous 
and  inconvenient.  What  I  desire  to  accomplish  by  striking  out  these  words  is  that  there 
may  be  amendments  and  extensions  of  charters  by  general  law,  but  that  the  provisions 
shall  not  necessarily  be  uniform  as  to  all  corporations  of  that  class.  Nearly  every  large 
railroad  corporation  existing  in  Virginia  to-day  is  organized,  after  a  sale  and  foreclosure 
proceeding,  under  a  special  charter  granted  by  the  Legislature,  with  difcerent  classes 
of  stock,  on  a  different  basis  of  financial  organization,  and  with  different  powers.  To 
make  every  one  of  these  railroad  companies,  in  order  to  obtain  an  extension  or  amend 
ment  of  its  charter,  to  come  upon  the  same  basis  with  other  corporations  of  that  class 
might  in  the  future  be  found  exceedingly  hurtful;  and  I  know  of  no  good  that  could  be 
accomplished  by  requiring  these  laws  to  be  uniform  as  to  the  class  of  corporations.  The 
lavr  might  be  general  and  yet  permit  special  amendments  to  the  charter  of  one  com- 
pany without  requiring  those  amendments  to  be  put  upon  the  charters  of  all  other  com- 
panies in  the  same  class.  I  trust  the  committee  will  see  its  way  clear  to  accept  the  sug- 
gestion and  strike  out  these  words.  I  think  there  will  be  very  great  danger,  and  that 
there  are  very  serious  difficulties  in  the  way  of  the  amendment  and  the  extension  of  the 
charters  of  organizations  which  are  now  exceedingly  useful  to  the  State  of  Virginia. 

:Mr.  Braxton:  I  cannot  agree  with  my  friend  as  to  the  effect  of  these  words.  The 
main  purpose  and  object  of  this  section  is  to  do  away  with  and  prevent  special  legis- 
lation and  the  granting  of  special  privileges  to  special  companies.  That  is  what  we 
had  in  view  when  we  provided  that  there  should  be  general  legislation,  and  that  the 
general  legislation  must  be  uniform  as  to  the  class  of  corporations  which  it  affects. 
TVe  leave  it  to  the  Legislature  to  define  those  classes.  I  think  the  error  into  which  my 
friend  has  fallen  is  in  assuming  that  because  the  general  legislation  is  to  be  uniform, 
that  therefore  there  can  be  but  one  amendment.  It  does  not  say  that  the  amendments" 
must  be  the  same,  but  that  the  law  under  which  the  amendments  are  adopted  must  be 
imiform.  There  may  be  a  large  number  of  different  amendments  which,  under  a  uni- 
form law,  can  be  adopted.  There  can  be  an  indefinite  variety  of  amendments,  but  the 
law  under  which  they  are  adopted  must  be  uniform.  I  will  say  to  my  friend,  in  this 
connection,  that  the  State  of  this  L'nion  which  is  more  liberal  in  granting  charters, 
and  which  is  a  State  that  granted  more  charters  than  any  other  State  except  New 
Jersey — I  refer  to  the  State  of  West  Virginia — ^has  this  identical  language  in  its  consti- 
tution, and  this  very  phrase  was  taken  verbatim  et  literatim  from  the  constitution  of 
that  State.  I  also  think  it  will  be  found  either  in  this  exact  language,  or  in  substan- 
tially this  language,  in  a  large  number  of  other  constitutions.  I  think  it  is  in  line  with 
the  whole  spirit  and  purpose  of  this  entire  section,  which  is  to  prevent  any  special 
legislation  in  favor  of  any  particular  company. 

I  must,  therefore,  oppose  my  friend's  amendment,  and  ask  that  the  committee  do 
not  adopt  it. 

Mr.  Thom:  I  would  like  to  ask  the  chairman  of  the  committee  whether  there  could 
be  special  legislation,  if  it  was  required  to  be  done  by  general  law.    The  requirement 


2536 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


would  still  remain  that  it  should  be  done  by  general  law,  but  it  would  not  require  that 
these  laws  must,  necessarily,  be  uniform  as  to  all  classes  of  corporations  to  which  they 
relate.  I  want  that  elasticity  left  in  the  law  to  meet  conditions  which  may  arise  in 
the  future. 

Mr.  Braxton:  If  they  were  not  uniform  as  to  the  classes  to  which  they  relate, 
how  could  they  be  general?  Would  they  not  be  special?  It  seems  to  me  that  this 
provision  is  entirely  consistent,  and  that  it  is  essential.  The  only  ground  on  which  I 
could  omit  the  words  would  be  on  the  ground  that  they  were  surplusage.  But  if  it  is 
surplusage  it  can  do  no  harm.  My  own  opinion,  and  the  opinion  of  your  committee, 
was  that  they  were  not  surplusage,  and  that  it.  was  desirable  and  important  that  they 
should  be  in  the  section  to  accentuate  this  provision.  The  fact  that  this  provision  has 
been  for  twenty  years  in  the  constitution  of  our  sister  State,  which  has  been  most 
liberal  in  these  matters,  confirmed  our  decision  that  it  was  a  safe  provision,  and  one 
which  ought  to  go  in. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Norfolk. 

The  amendment  was  rejected. 

Mr.  Braxton:    I  move  that  we  now  proceed  to  the  consideration  of  Section  3. 
The  Chairman:    The  Secretary  will  read  Section  3. 

Sec.  3.  There  is  hereby  created  a  permanent  commission,  to  consist  of  three  mem- 
bers, which  shall  be  known  as  the  State  corporation  commission.  The  said  commission 
shall  be  appointed  by  the  Governor,  subject  to  confirmation  by  the  General  Assembly 
in  joint  session,  and  their  regular  terms  of  office  shall  be  six  years,  respectively,  except  to 
those  first  appointed  under  this  Constitution.  Of  whom  one  shall  hold  office  until  the  first 
day  of  February,  1905,  one  till  the  first  day  of  February,  1907,  and  one  till  the  first  day 
of  February,  1909.  The  said  commissioners  first  appointed  shall,  immediately  after 
their  appointment,  forthwith  enter  upon  the  duties  of  their  office,  and  shall  elect  one  of 
their  members  chairman  of  the  commission,  which  position  they  shall  annually  refill 
by  similar  election.  No  person  appointed  on  said  commission,  either  for  a  regular  term, 
or  to  fill  a  vacancy,  shall  continue  in  office  after  the  General  Assembly  shall  have  refused 
to  confirm  his  appointment,  nor  after  the  General  Assembly  shall  have  adjourned  sine 
die,  subsequent  to  his  appointment  without  confirming  the  same,  nor  shall  he  be  eligible 
for  reappointment  to  fill  the  vacancy  caused  by  such  failure  or  refusual  to  confirm. 
Whenever  a  vacancy  shall  occur  on  the  said  commission,  the  Governor  shall  forthwith 
appoint  a  qualified  person  to  fill  the  same  for  the  unexpired  term,  subject  to  confirma- 
tion by  the  General  Assembly  as  aforesaid.  No  person  employed  by,  or  holding  any  office 
in  relation  to,  any  transportation  or  transmission  company,  or  who  is  in  any  wise 
financially  interested  therein,  shall  hold  office  as  such  commissioner,  or  perform  any  of 
the  duties  thereof. 

At  least  one  member  of  said  commission  shall  have  the  same  qualifications  pre- 
scribed for  members  of  the  Supreme  Court  of  Appeals,  and  any  of  the  members  of  the 
said  commission  may  be  impeached  or  removed  in  the  same  manner  provided  for  the 
impeachment  or  removal  of  members  of  the  said  court.  The  said  commission  shall  have 
one  clerk  and  one  bailiff,  and  such  other  clerks,  officers,  assistants,  and  subordinates  as 
may  be  provided  by  law,  all  of  whom  shall  be  appointed,  and  subject  to  removal,  by  the 
said  commission,  and  said  commission  shall  prescribe  its  own  rules  of  order  and  pro- 
cedure. All  sessions  of  said  commission  shall  be  public,  and  a  permanent  record  shall 
be  kept  of  all  of  its  judgments,  rules,  orders,  findings,  and  decisions,  and  of  all  reports 
made  to.  or  by  it.  Any  two  of  said  commissioners  shall  constitute  a  quorum  for  the 
transaction  of  business,  whether  the  office  of  the  other  commissioner  be  at  the  time 
vacant  or  not.  The  office  of  the  commission  shall  be  open  for  business  on  every^  day 
except  Sundays  and  legal  holidays.  Transportation  companies  hereafter  doing  business 
in  this  State  shall  at  all  times  transport,  free  of  charge,  the  members  of  said  commission 
and  their  officers,  or  any  of  them,  when  engaged  on  their  official  duties.  The  General 
Assembly  shall  provide  suitable  quarters  for  the  said  commission,  funds  for  its  incidental 
expenses  (including  pay  of  witnesses  summoned,  and  costs  of  executing  processes  issued 
by  the  commission  of  its  own  motion),  and  salaries  for  its  members,  clerks,  assistants, 
and  subordinates;  provided,  that  the  salary  of  each  commissioner  shall  not  be  less  than 
three  thousand  dollars  per  annum. 

After  the  first  day  of  January,  1909,  the  General  Assembly  may  provide  by  law  for 
the  election  of  the  said  commissioners  by  the  people  of  the  State  at  large,  instead  of 
their  appointment  by  the  Governor  as  hereinbefore  required. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3537 


Mr.  Braxton:  I  would  like  to  amend  Section  3,  in  line  40,  by  inserting  after  the 
word  "procedure"  the  words  "except  so  far  as  specified  in  this  Constitution  or  any 
amendment  thereof." 

The  reason  for  inserting  those  words  is  that  the  Constitution  does  provide  some 
methods  of  procedure,  and  when  we  say  here  that  the  commission  shall  prescribe  its 
own  rules  of  procedure,  we  mean  that  they  may  prescribe  those  rules,  except  so  far  as 
the  Constitution  has  already  prescribed  them. 

Mr.  Robertson:  Is  it  the  idea  that  the  Legislature  shall  be  deprived  of  the  right 
to  provide  rules  of  procedure? 

Mr.  Braxton:    Yes,  sir. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Augusta. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  I  move  to  amend  by  inserting  after  the  amendment  just  adopted, 
after  the  word  "thereof"  the  following: 

As  the  business  of  the  State  corporation  commission  may  justify  it,  the  General 
Assembly  may,  from  time  to  time,  establish  in  that  department,  and  subject  to  the 
supervision  and  control  of  the  said  commission,  such  subordinate  bureaus  of  insurance, 
banking,  or  other  special  branches  of  the  business  of  the  department,  as,  in  the  judg- 
ment of  the  General  Assembly,  may  be  desirable  and  expedient. 

Mr.  Chairman,  it  has  been  the  earnest  desire  of  the  gentlemen  engaged  in  the 
insurance  business,  both  fire  and  life,  for  a  number  of  years  past,  that  there  should 
be  an  insurance  commission  in  this  State.  I  understand  that  most  of  the  States  have 
an  insurance  commission.  It  is  not  merely  for  the  benefit  of  the  insurance  companies, 
but  it  is  to  the  benefit  of  the  public  at  large  to  keep  watch  on  these  insurance  com- 
panies, and  see  that  they  comply  with  the  laws,  in  order  to  protect  the  general  public 
against  insolvent,  speculative  and  unreliable  companies.  Your  committee  thought  that 
an  insurance  commission  was  not  an  officer  of  sufficient  importance  and  stability  to 
make  it  wise  to  make  him  a  constitutional  officer,  but  they  did  think  that  it  should  be 
put  beyond  peradventure  that  the  Legislature  was  to  retain  the  power  of  establishing 
such  an  insurance  commissioner  at  any  time  hereafter,  when,  in  the  wisdom  of  the 
Legislature,  such  an  officer  should  be  deemed  desirable.  For  the  present,  it  is  believed 
that  this  corporation  commission  itself  can  act  as  the  insurance  commissioner  and  will 
be  probably  all  the  insurance  commissioner  we  will  need.  But  as  the  business  of  the 
State  increases,  from  time  to  time,  it  may  be  found  desirable  to  sub-divide  the  work 
of  the  commission  into  subordinate  bureaus,  under  the  general  supervision  and  control 
of  the  commission. 

Whether  such  a  condition  of  affairs  will  ever  come  or  not  is  a  question;  but  the  pur- 
pose of  this  amendment  is  to  enable  the  Legislature  to  deal  with  it  with  a  free  hand, 
should  the  occasion  ever  arise.  I  will  state  that  several  members  of  your  committee  have 
conferred  at  length  with  the  gentlemen  representing  the  insurance  interests  of  this  State 
and  this  provision  meets  with  their  full  approval.  In  the  opinion  of  your  committee  it  is 
a  very  desirable  thing  from  the  standpoint  of  the  public. 

I  trust,  therefore,  that  as  this  amendment  does  nothing  but  leave  the  Legislature  free 
to  deal  with  this  matter  as  circumstances  may  arise,  you  will  be  pleased  to  adopt  the 
amendment. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Augusta. 

The  amendment  was  agreed  to. 

Mr.  Withers:    I  desire  to  offer  two  amendments. 

Insert  the  words  "  three  members  of  the  said  "  in  line  4,  Section  3,  after  the  word 
"  said." 

160— Const.  Deb. 


2538 


DEBATES  OF  THE  CO^TSTITUTIOXAL  COXVE^fTION"  OF  VIRGINIA. 


Strike  out  in  Section  3,  lines  4  and  5,  the  words  beginning  with  "  appointed,"  in  line 
4  and  ending  with  the  word  "  session,"  in  line  5;  and  insert  the  words  "elected  by  the 
qualified  voters  of  the  State." 

Mr.  Withers:  Mr.  Chairman,  I  shall  not  tax  the  temper,  patience  and  good  nature  of 
this  committee  by  any  argument  on  this  question.  The  whole  question  of  whether  or  not 
the  officers  of  this  nature  and  of  a  judicial  nature  should  be  elected  by  the  people  or 
appointed  by  the  Governor  or  elected  by  the  General  Assembly  has  been  treated  exhaust- 
ively and  exhaustingly  in  other  reports,  when  they  were  before  this  committee  for  con- 
sideration. I  simply  want  to  state  this  as  my  reason  for  offering  these  amendments.  My 
opinion  is  that  the  ineffective  railway  corporation  commissions  of  this  Union  are  those 
that  are  elected  by  the  Legislature  or  appointed  by  the  Governor  with  some  exceptions, 
and  that  the  most  effective  railroad  corporation  commissions  of  this  Union  are  those  that 
are  elected  by  the  people.  I  believe  that  arises  from,  the  fact  that  no  matter  how  wise  and 
how  good  the  members  of  any  particular  General  Assembly  may  be,  they  are  subjected  to 
some  influences  that  are  otherwise  than  those  that  seek  to  attain  merit,  efficiency  and 
competency  in  the  selection  of  officers.  In  the  hands  of  the  Governor  this  will  afford  a  most 
powerful  and  effective  means,  should  it  be  corruptly  used,  of  building  up  not  merely  a 
political  machine  in  the  exercise  of  the  appointing  power,  but  will  also  permit  favoritism 
towards  corporations.  It  will  inevitably  lead,  in  my  humble  opinion,  not  merely  to  build- 
ing up  an  immense  appointing  power — which  we  are  making  too  large  under  this  Con- 
stitution already — but  it  will  enable  the  Governor,  if  he  desires  in  any  way  to  further  his 
own  political  ambition  to  obtain  the  support  of  the  very  people  we  seek  to  control,  by 
appointing  the  men  they  may  select  upon  this  commission. 

Now,  that  is  a  general  principle  and  is  not  applicable  to  any  particular  man  or  time 
or  place;  but  in  addition  to  the  reasons  that  have  already  been  urged  upon  this  floor,  as 
to  why  the  people  should  have  the  selection  of  their  own  officers,  for  these  two  other 
reasons,  effectiveness  in  the  commission  and  the  destruction  of  increased  appointing 
power,  with  the  danger  that  invariably  adheres  to  it,  I  offer  this  amendment. 

Mr.  R.  Walton  Moore:  It  has  been  stated  that  there  are  some  nineteen  commis- 
sions of  this  character  in  the  United  States.  How  many  of  those  commissions  are 
elected  by  the  people? 

Mr.  Withers:  I  have  not  investigated,  sir,  I  know  that  the  more  effective  com- 
missions are  elected  by  the  people.  I  understand  the  commission  of  Massachusetts,  so 
far  as  its  power  goes,  is  effective  and  does  good  work,  but  that  its  power  is  very  limited. 
I  do  know  that  the  Interstate  Commerce  Commission,  which  is  an  appointive  body;  is 
the  most  effective  body  of  that  sort  I  ever  saw  for  the  power  it  has.  It  gets  at  the  facts 
and  draws  out  the  meat  and  gist  from  the  intricacies  and  details  of  railroad  management 
in  a  manner  that  I  have  never  seen  equalled  or  excelled. 

Mr.  Braxton:  Mr.  Chairman,  this  matter  was  considered  with  the  greatest  care  by 
the  Committee  on  Corporations.  It  is  a  matter  about  which  we  recognize  there  could  be 
and  was  a  difference  of  opinion  among  the  friends  of  the  measure  for  the  establishment 
of  a  corporation  commission,  and  notwithstanding  the  fact  that  several  members  of  that 
committee  had  voted  for  the  election  of  the  judges  by  the  people,  and  that  their  general 
trend  of  thought  was  in  that  direction,  I  think  I  am  correct  in  saying  that  that  com- 
mittee v/as  unanimous  in  favor  of  the  method  which  we  have  provided  here. 

I  call  the  attention  of  the  committee  to  the  fact  that  the  men  who  compose  this  com- 
mission will  be  men  who  will  require  some  technical  knowledge  of  the  subject  with  which 
they  will  have  to  deal.  It  is  a  new  tribunal.  It  is  different  in  this  respect  from  the 
election  of  judges  by  the  people.  The  judicial  office  is  an  old  one.  It  is  one  with  which 
all  the  people  are  familiar.  It  is  one  which  is  exercised  in  every  city  and  county  in  the 
Commonwealth.  It  is  one  for  the  filling  of  which  there  are  from  six  to  a  dozen  men  in 
almost  every  county  who  are  competent  to  perform  its  duties,  but  the  office  of  corpora- 
tion commissioner,  clothed  with  the  duties  and  functions  with  which  they  have  been 
clothed,  will  not  only  be  a  new  office,  the  necessary  qualities  for  the  incumbents  of  which 


DEBATES  OF  THE  COXSIIIUIIOX AL,  COXVEXTIOX  OE  VIEGIXIA. 


2539 


are  not  generally  kno^n  to  ilie  people,  but  ii  is  one  for  which  I  douht  whether  there  are 
a.  dozen  men  in  the  State  of  Virginia  who  are  both  competent  and  willing  to  serve  upon  it. 

Now,  this  thing  of  election  by  the  people  is  a  very  beautiful  thing,  but  it  is  frequently 
a  misleading  thing.  The  people,  Mr.  Chairman,  have  the  capacity  to  elect,  but  they 
rarely  have  the  capacity  to  select.  Their  election  and  their  choice  must  be  taken  from 
the  candidates  that  the  political  parties  choose  to  put  up,  and  if  this  State  v.-ere  full  of 
competent  men,  and  the  Democratic  party  should  nominate  a  knave  and  the  Republican 
party  should  nominate  a  fool,  the  people  would  be  compelled  to  make  their  selection  be- 
tween the  knave  and  the  fool  who  stood  before  them  as  candidates,  notwithstanding  the 
fact  that  the  State  might  be  full  of  other  men  who  would  be  competent.  It  is  not  the  lack 
of  knowledge,  it  is  not  the  lack  of  ability  on  the  part  of  the  people;  it  is  the  result  of  the 
physical  fact  that  a  million  people  cannot  select.  They  can  only  act  in  a  few  ways,  in  the 
simplest  ways.  It  matters  not  if  every  one  of  them  individually  were  the  greatest  states- 
men the  world  ever  produced,  the  mere  physical  size  of  them  prevents  them  doing  any- 
thing except  the  simplest  action,  that  is,  to  select  between  one  or  more  candidates  that 
some  political  party  has  put  up.  Therefore,  this  thing  of  the  people  going  out  and.  un- 
trammelled, casting  their  eyes  over  the  State  and  picking  out  the  man  who  is  fitted  for 
this  place  is  an  irridescent  dream.  These  men  will  be  nominated  by  the  political  parties, 
and  the  people  will  be  reduced  to  the  necessity  of  having  to  decide  between  those  men 
that  the  political  forces  put  up  for  them  to  choose  between.  The  office  of  Governor  is  a 
political  office.  It  is  an  office  that  no  man  can  expect  to  be  elected  to  unless  he  has  been 
in  public  life  for  a  greater  or  less  length  of  time.  The  people  know  him.  The  people 
have  the  opportunity  of  judging  of  his  capacity  for  political  matters.  The  office  pro- 
vided for  here  is  a  matter  that  has  no  more  to  do  with  politics  than  the  cashier  of  a 
bank  has.  It  ought  to  be  filled  by  men  who  are  not  politicians.  It  ought  to  be  filled  by 
men  whose  past  experience  has  been  in  the  line  of  practical  business,  and  not  in  the 
lines  of  political  matters.  The  people  are  much  better  able  to  judge  of  the  capacity  of  a 
man  to  serve  as  Governor  than  one  to  serve  as  corporation  commissioner  under  such  a 
provision  as  this,  because  the  functions  which  the  Governor  has  to  perform  are  functions 
that  every  man  is  familiar  with. 

Xow,  Mr.  Chairman,  your  committee,  wishing  to  proceed  with  the  utmost  care  in  this 
matter,  with  the  utmost  conservatism,  recognize  the  fact  that  when  men  are  appointed 
by  the  Governor  and  not  elected  by  the  people,  they  sometimes  may  stray  away  from  that 
close  interest,  touch,  affiliation  with  the  public  welfare  that  is  necessary  In  public  officers; 
in  other  words,  they  abuse  the  independence  which  is  given  them  by  their  method  of 
appointment.  On  the  contrary,  if  they  are  elected  by  the  people,  the  tendency  is  to  be- 
come time-servers  and  demagogues,  to  commit  themselves  along  all  lines  of  action  as  they 
go  out  to  canvass  over  the  State.  If  they  are  elected  by  the  people,  one-half  of  the  time 
they  ought  to  be  working  to  earn  their  salaries,  will  be  spent  in  canvassing  the  State, 
and  it  is  no  small  matter  to  canvass  the  State  of  Virginia  from  one  end  to  the  other.  In 
other  words,  we  recognized  that  there  were  both  advantages  and  disadvantages  in  the 
method  of  appointment  we  have  recommended,  and  in  the  election  by  the  people,  and  it 
was  our  endeavor  to  strike  upon  some  method  that  would  give  us  the  better  features  of 
each  metnod  and  would  save  us  from  the  most  undesirable  ones. 

Therefore,  inasmuch  as  it  seems  to  be  conceded,  or  certainly  it  is  so  as  our  informa- 
tion has  been,  that  there  is  a  general  concensus  of  opinion  elsewhere,  as  well  as  here, 
that  the  first  incumbents  of  this  office  had  better  be  appointed,  we  say  that  they  shall  be 
appointed  and  confirmed  by  the  Legislature,  not  by  one  house,  not  by  separate  votes,  but 
by  a  majority  of  the  two  houses  in  joint  session,  so  that  the  Governor  cannot  abuse  that 
power  unless  he  has  the  endorsement  of  seventy-one  members.  Ve  provide  that  in  order 
to  prevent  these  gentlemen  from  straying  away  from  public  interests,  from  losing 
sympathy  with  the  public,  from  abusing  the  independence  we  give  them,  there  shall  be 
held  over  their  heads  always  this  possibility,  that  at  any  time  they  can  be  elected  by  the 
people. 


2540  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Wysor:  Mr.  Chairman,  I  wish  to  say  that  1  will  vote  for  the  report  in  the  hope 
that  when  we  take  up  the  executive  report  again  we  will  put  a  provision  in  that  report 
making  the  Governor  ineligible  to  election  to  the  United  States  Senate.  (Laughter).  If 
you  will  do  that,  I  think  we  will  have  a  good  provision.  I  want  the  committee  to  think 
that  over  in  the  meantime.  I  hope  a  great  many  men  here  do  not  want  to  make  such  a 
provision,  but  I  think  it  ought  to  be  done.  Then  the  Governor  will  have  no  inducement 
to  make  other  than  proper  appointments.  It  seems  to  me  that  is  a  very  important  pro- 
vision to  go  in  the  executive  report.  I  am  in  earnest  about  it.  I  do  not  think  a  Gover- 
nor, when  he  is  elected  Governor,  should  be  looking  after  other  offices. 

Mr.  Kendall:  Mr.  Chairman,  the  point  that  has  been  made  by  my  friend  from 
Pulaski  (Mr.  Wysor),  it  seems  to  me,  indicates  that  there  is  in  the  minds  of  many  mem- 
bers of  this  committee  an  idea  that  the  corporations  would  have  great  influence  with  the 
Governor  in  making  these  appointments.  I  am  inclined  to  think  the  gentleman  has  very 
much  magnified  that  possibility,  and  that  on  the  contrary  the  Governor  would  find  there 
were  two  sides  to  that  question.  He  would  find,  if  he  was  seeking  popular  favor,  that 
when  he  was  seeking  to  please  the  corporations,  the  people  would  know  all  about  it  and 
would  be  calling  him  to  account,  and  that  certainly  the  best  course  he  could  pursue 
would  be  the  middle  course — considering  merely  what  was  best  for  the  pubRc  interest, 
regardless  altogether  of  the  factional  fight.  In  other  words,  I  think  he  would  find  that 
it  would  put  him  on  his  best  behavior  and  would  inure  to  the  very  best  appointments 
that  could  possibly  be  made. 

I  simply  add  this  by  way  of  supplement  to  what  has  been  so  well  said  by  the  Chair- 
man of  the  committee. 

Mr.  Wysor:  What  objection  is  there  to  making  the  Governor  ineligible  to  the 
United  States  Senate  and  relieving  him  of  all  temptation? 

Mr.  Kendall:  I  do  not  believe  there  is  any  necessity  for  that;  but  that  is  a  matter 
for  future  debate.  That  is  a  matter  which  may  be  considered  in  due  time,  I  only  wish  to 
meet  what  I  believe  is  in  the  minds  of  a  large  number  of  gentlemen  here,  the  idea  that 
this  power  will  be  abused  by  the  Governor  who  is  an  applicant  for  some  other  position. 
I  believe  the  contrary,  that  he  will  find  the  only  possible  course  by  which  he  can  please, 
the  people  will  be  a  proper  course  and  that  he  will  for  that  purpose  exercise  the  preroga- 
tive given  him  in  the  very  best  interests  of  the  people. 

Mr.  Brown:  Mr.  Chairman,  it  seems  to  me  this  point  we  are  discussing  now  is  one 
that  is  vital  not  only  to  the  interests  of  the  people,  but  to  the  interests  of  the  corpora- 
tions. 

I  do  not  rise  to  advocate  placing  the  permanent  appointment  in  the  hands  of  the 
Governor,  but  I  think  in  starting  this  new  system  which  we  propose  to  start  in  this  State, 
it  is  necessary  and  proper  that  the  most  careful  consideration  should  be  given  to  the 
peculiar  fitness  of  the  men  who  are  to  fill  this  position. 

It  seems  to  me  the  Governor  of  tne  State,  being  charged  with  the  high  duty  of  mak- 
ing such  appointments,  would  also  feel  a  heavy  responsibility  in  seeing  that  equal  justice 
was  done  in  this  matter.  It  seems  to  me  the  first  commission  appointed  under  the  new 
Constitution,  or  which  goes  into  office  under  the  new  Constitution,  will  be  a  commission 
charged  with  the  duty  of  setting  a  pace,  and  that  there  ought  not  to  be  the  excitement  of 
a  political  campaign  in  this  matter.  It  does  seem  to  me  the  position  of  the  committee 
is  very  carefully  guarded  in  leaving  the  power  in  the  Legislafure,  after  the  first  appoint- 
ment, to  change  it  to  an  election  by  the  people.  I  think  that  in  the  interests  of  all  con- 
cerned, that  in  the  interests  of  the  selection  of  a  commission  that  will  be  conservative, 
composed  of  men  of  judicial  character,  the  safeguard  is  provided  here  by  this  committee, 
and  I  do  hope  the  Committee  of  tne  V^Hiole  in  voting  upon  this  matter  will  preserve  the 
report  of  the  committee  as  it  now  stands. 

Mr.  O'Flaherty:  Mr.  Chairman,  the  very  fact  that  this  committee  is  willing  to 
change  the  method  of  election  at  the  end  of  the  first  term,  indicates  to  my  mind  that  they 
are  in  doubt  as  to  whether  that  is  the  proper  thing  to  do  or  not. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIKGIXIA. 


2541 


Whenever  there  is  any  doubt  in  my  mind  as  between  a  matter  in  favor  of  the  people 
and  deciding  it  in  some  other  way,  I  resolve  it  immediately  in  favor  of  the  people.  It 
seems  to  me,  you  began  at  the  wrong  end  of  it.  You  say  that  if  it  shall  turn  out  not  to 
be  the  best  method,  then  you  will  not  pursue  that  course.  If  it  should  turn  out  that  the 
people  of  Virginia  have  been  turned  over  bag  and  baggage  to  the  railroads  of  Virginia,  it 
may  be  too  late. 

I  am  in  favor,  in  the  first  instance,  of  letting  the  power  remain  where  it  belongs,  in 
the  people;  and  if  they  wish  to  give  it  up,  they  can  do  it.  That  immortal  instrument 
that  made  this  country  great,  said  that  all  the  power  that  was  not  given  to  the  United 
States  Government  was  retained  or  held  back.  Let' us  hold  back  the  power  that  belongs 
to  the  people,  and  not  surrender  it,  and  then  say  w^e  will  take  it  back  after  the  power  has 
been  lost  to  the  people.  I  do  not  think  this  great  power  should  be  given  to  any  one  man, 
however  great  or  exalted  personally  he  may  be. 

I  wish  to  call  the  attention  of  the  committee  to  the  fact  that  you  have  combined  in 
this  commission  legislative,  executive  and  judicial  functions.  It  cannot  be  said  that 
hereafter  Virginia  has  a  Constitution  made  up  of  three  departments.  You  will  have  a 
Constitution  made  up  of  four  departments,  the  Legislative,  the  executive,  the  judicial, 
and  this  mongrel  or  mixed  one  that  has  all  three  in  it.  That  being  the  case,  I  should 
like  to  treat  this  as  the  other  co-ordinate  branches  are  treated.  The  executive  is  co- 
ordinate with  the  legislative.  ±iow  does  the  executive  get  its  power?  It  gets  it  direct 
from  the  people.  The  governor  is  elected  by  the  people.  The  legislative  is  co-ordinate. 
Where  does  it  get  its  power?  It  gets  it  direct  from  the  people,  because  the  people  elect 
the  representatives  and  send  them  to  this  hall.  WTiere  does  the  judiciary  get  its  power?  I 
was  in  favor  of  giving  it  directly,  but  it  gets  it  now  indirectly  from  the  people.  But  here 
you  make  a  judicial  body,  an  executive  commission,  a  legislative  department,  and  put 
all  these  powers  in  the  hands  of  the  commission,  and  yet  you  take  away  from  the  people 
the  right  to  say  whether  it  shall  be  done  or  not. 

I  want  to  say  on  this  floor  as  the  representative  of  a  people  who  express  their  wishes 
through  the  ballot,  without  fear  or  favor  or  without  being  purchased,  that  you  are 
creating  a  commission  here  that  the  people  of  Virginia  have  never  demanded.  In  the 
counties  from  which  I  come  I  have  never  heard  a  man  say  he  wanted  a  corporation  com- 
mission. The  great  Shenandoah  Valley,  the  greatest  agricultural  part  of  this  State  I  say 
has  never  demanded  that  we  have  this  commission;  but  if  it  is  a  good  thing,  and  the 
superior  wisdom  of  these  gentlemen  on  the  committee  who  know  better  what  we  want 
than  we  know  ourselves,  would  seem  to  indicate  that  it  is,  and  they  are  going  to  give  it 
to  us  whether  we  wish  it  or  not,  whether  our  people  have  expressed  any  opinion  about 
it  or  not,  we  should  like  to  have  some  way,  at  least,  as  to  who  is  to  exercise  that  great 
power.  Is  that  unreasonable?  Gentlemen,  I  may  be  an  humble  member  of  this  body 
and  it  may  be  treason,  as  I  said  yesterday,  to  speak  in  opposition  to  the  report  of  this 
committee,  but  I  want  to  exercise  the  right  I  have  as  a  representative  of  the  people  and 
say  to  you  that  you  could  not  do  a  worse  thing  than  to  take  away  from  the  people  any 
further  the  power  that  you  have  taken  away.  You  have  transferred  the  educational 
interests  of  this  State  into  the  hands  of  a  board.  You  have  augmented  the  power  of  the 
Governor  from  day  to  day.  You  have  deprived  the  Legislature  from  day  to  day  of 
power.  You  have  done  it  in  your  wisdom,  and  I  am  going  to  endeavor,  when  I  leave  the 
halls  of  the  Convention,  with  all  the  strength  and  power  I  have,  be  it  small  or  great,  to 
have  this  Constitution  adopted,  for  we  can  not  all  get  what  we  want,  and  must  make 
concessions  to  each  other,  but  I  ask  you  to  beware  that  you  do  not  concentrate  too  much 
power  in  the  hands  of  the  Governor  of  the  State.  It  is  not  a  personal  matter.  I  do  nof 
mean  the  present  Governor,  any  past  one,  or  any  prospective  Governor.  I  wish  to  call 
your  attention  to  the  fact  that  this  is  in  contradistinction  to  the  American  form  of  Gov- 
ernment, and  I  call  the  distinguished  chairm.an's  attention  to  the  fact  that  I  do  not  be- 
lieve the  majority  of  the  commissions  that  have  been  appointed  in  the  United  States  by 
constitutional  provision  are  appointed  in  this  way.    If  I  remember  rightly,  under  the 


2542  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Louisiana  Constitution,  the  commission  is  elected  by  the  people,  and  it  is  provided  in 
that  Constitution  that  no  member  of  the  Convention  that  created  the  corporation  com- 
mission should  ever  be  a  member  of  that  commission,  and  that  is  what  we  ought  to  do. 
T  do  not  charge  anybody  here  with  any  such  desire,  but  if  there  are  any  Caesars  who 
have  ambition  along  this  line,  let  us  cut  away  from  them  that  glimmering  and  glittering 
attraction,  so  that  they  look  at  this  from  an  impersonal  standpoint. 
The  Chairman:    The  gentlemen's  time  has  expired. 

Mr.  Summers:  Mr.  Chairman  and  gentlemen  of  the  committee,  as  soon  as  you  get 
quiet  I  want  to  offer  a  few  remarks.  I  conceive  that  I  am  talking  to  100  honest,  pro- 
found, thinking  men.  Gentlemen,  I  differ  somewhat  from  my  friend  who  has  just  taken 
his  seat  (Mr.  O'Flaherty).  My  people,  the  grandest  upon  earth,  demanded  this  com- 
mission, and  I,  as  their  humble  servant,  thank  God  that  the  monster  of  corporations  has 
been  gotten  down  and  that  the  people  of  Virginia  once  more  triumph.  To  save  their 
triumph,  I  now  speak. 

Gentlemen,  this  Convention  has  done  what  the  Legislatures  of  seventy-five  years 
have  failed  to  do.  It  has  done  what  all  the  political  caucuses  of  Virginia  for  the  last  half 
century  have  failed  to  do.  It  has  grappled  the  serpent  by  its  throat,  and  the  people  are 
its  masters. 

That  is  the  Vv^ay  I  stand  on  it. 

Now,  to  preserve  that,  let  us  hold  the  monster.  How  shall  we  do  it?  Friends  who 
cherish  this  movement  and  this  great  victory  of  ours,  remember  there  is  an  isle  in  the 
Mediterranean  sea  that  all  good  men  should  look  at  upon  the  map,  the  Island  of  Elba. 
Louis  XVIII.,  flushed  with  his  victory,  and  the  abdication  of  Napoleon,  lost  sight  of  his 
people.  Napoleon  returned  and  again  sat  upon  his  throne.  You  gentlemen  who  with 
myself  have  fought  for  this  measure  and  for  the  people  of  this  country,  mark  this :  Un- 
less you  carry  the  people  along  with  you  you  will  not  succeed.  Oh,  Red  Star  of  the 
Valley,  never  will  you  lead  any  enterprise  unless  the  noble  people  of  the  country  fol- 
low you. 

Now.  gentlemen,  and  particularly  the  friends  of  this  measure,  I  want  to  recall  to  you 
an  incident  in  history.  When  Hannibal,  on  his  elephant,  was  starting  to  cross  the  Alps 
there  was  a  young  soldier  riding  upon  a  golden  colored  horse.  "When  he  got  to  the  foot 
of  the  mountain  he  remarked  to  Hannibal,  "We  are  going  to  cross  the  Alps."  That  crafty 
old  soldier,  Hannibal,  remarked,  "Young  man,  beware,  we  are  not  yet  upon  the  foot  of  the 
Alps,"  This  commission  is  not  upon  the  foot  of  the  Alps,  and  whenever  you  desert  the 
people  I  am  done  with  it  and  so  are  the  people. 

Now,  let  us  notice  the  practical  effects,  gentlemen.  Here  is  this  agricultural  report. 
What  do  we  see?  In  every  little  newspaper  of  the  whole  country  we  see  "God  bless  Fair- 
fax and  Stuart  and  their  commission.  They  were  willing  to  trust  the  people,"  If  that 
committee  is  as  noble  and  patriotic  as  that  in  the  eyes  of  the  people,  we  ought  to  accept 
their  verdict  and  throw  the  gauntlet  down  and  say  the  people  are  with  us. 

Now,  gentlemen,  I  am  like  Hannibal  in  one  respect.  I  have  seen  a  number  of  years; 
and  I  wish  to  God  some  of  my  friends  had  some  of  the  traits  of  Hannibal.  But  now  let 
us  see  where  your  danger  is,  I  have  been  fighting  corporations  for  thirty-two  years.  I 
can  always  win  before  a  jury,  but  when  I  come  to  a  corporation  judge  I  always  lose. 
(Laughter.)  That  is  the  experience  of  every  criminal  lawyer  here  and  every  other  law- 
yer of  practice. 

Now,  let  m.e  tell  you  something  about  corporations;  and  gentlemen  I  do  not  intend 
this  for  any  disrespect.  A  corporation  has  more  lives  than  a  cat.  You  can  kill  it  and  it 
is  back  and  it  is  back  and  back  again.  If  this  corporation  commission  is  not  elected  by 
the  people,  it  will  become  offensive  to  the  people  and  the  people  will  begin  to  sympathize 
with  the  corporation.  Now,  what  will  you  find?  The  corporation  men  can  take  the 
128,000  negroes  in  Eastern  Virginia,  they  can  take  the  gold  bugs,  or  they  can  take  the 
Bryan  men  and  they  can  elect  the  Governor,  and  then  Governor,  commission  and  all  is 
gone.    These  corporations,  unless  the  morale  of  Virginia  is  changed,  can  sweep  all  coun- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OE  VIRGINIA.  2543 

tries  save  mine,  and  the  morale  is  so  high-toned  there  that  money  cannot  reach  them. 
(Laughter.) 

Gentlemen,  let  me  tell  you  what  I  have  seen  in  my  life.  I  have  seen  a  man  who  was 
a  candidate  for  the  United  States  Senate,  the  tread  of  whose  feet  made  all  Cuba  tremble. 
These  corporations  took  up  another  candidate,  and  the  Legislature  let  the  hero  fall,  and 
the  nugget  is  to-day  the  shining  light  of  the  Old  Dominion.  I  am  not  saying  anything 
disrespectful,  gentlemen  to  the  Legislature,  because  there  are  some  fighting,  heavy- 
shouldered  men  among  them,  but  I  am  not  bound  to  compliment  them.  (Laughter.) 

Now,  my  friends,  you  see  that  the  Red  Star  of  the  Valley  has  done  in  real  life  what 
Jason  did  in  mythology.  He  has  found  the  Golden  Fleece  and  once  more  brought  it 
back  to  the  Old  Dominion,  stretching  from  the  Cumberlands  to  the  salt  water,  and  I  to- 
day pronounce  him  the  living  Jason  of  the  20th  century. 

For  the  sake  of  the  great  victory  we  have  won,  where  is  the  man  who  can  look  me 
ill  the  face  and  say  he  is  afraid  to  trust  his  people  to  vote?  None  of  us  in  Southwest 
Virginia  are  made  that  way.  They  are  not  made  that  way  in  the  Valley.  The  Red  Star 
would  lose  his  glory  if  he  would  say  it.  Gentlemen,  if  you  respect  your  constituency,  as  I 
know  you  do — 

The  Chairman:    The  gentleman's  time  has  expired. 

Mr.  Summers:    I  am  much  obliged  to  you,  sir.  (Laughter.) 

Mr.  Meredith:  Mr.  Chairman,  I  want  to  say  a  word  or  two  in  support  of  the  com- 
mittee's report.  I  think  all  of  us  have  pretty  v»'ell  given  to  our  constituents  our  views  a& 
to  this  matter.  There  is  no  question  amongst  us  as  to  shrinking  from  doing  a-jftiblic 
duty.  We  have  all  expressed  ourselves,  and  we  have  been  guided,  I  believe,  so^far  as^  we 
have  been  able,  by  what  was  right  and  proper.  But  I  do  think  that  in  taking  up  a  subject 
like  this,  which  we  must  all  recognize  as  extremely  important  and  very  unusual,  we 
ought  to  take  it  up  with  some  care  and  some  caution.  I  think  we  all  recognize  not  that 
we  should  shrink  from  doing  it,  but  that  we  should  do  it  in  such  a  way  that  we  will  get 
t^"-^  best  benefit  from  it,  and  produce  the  least  harm  to  any  class  that  exists  in  our  State. 

"  call  y^our  attention  to  this  fact,  which  I  think  is  worthy  of  consideration  in  the 
Question  of  a  popular  election,  that  the  men  of  this  commission  will  be  different  from 
any  class  of  officers  whom  you  elect.  You  elect  your  judiciary  to  represent  all  classes. 
You  elect  other  officers  to  carry  out  the  laws  a?  to  all  classes  of  the  people ;  but  you  must 
recollect,  and  it  is  a  fact  that  we  need  not  undertake  to  discuss,  that  we  are  appointing 
this  commission  for  the  purpose  of  controlling  a  particular  class  in  our  community. 

The  object  of  this  commission  is  to  restrain  what  we  deem  the  illegal  acts  and  ex- 
cessive power  of  a  certain  class  of  our  community.  It  therefore  becomes  evident  that  in 
any  election  you  have,  yOu  will  necessarily,  in  a  matter  of  this  kind,  have  class  interest 
arrayed  against  class  interests.  It  will  not  be  simply  the  election  of  an  officer  for  the 
benefit  of  the  entire  people,  but  it  will  be  the  election  of  an  officer  for  the  purpose  of 
governing  a  particular  class  of  that  people. 

Recognizing  that  fact,  you  must  see  that  in  every  political  campaign  there  would 
enter  that  bitterness  that  is  apt  to  be  engendered  where  class  interests  are  concerned; 
and,  as  that  is  true,  we  should  avoid  it  and  get  the  benefit  and  the  good  that  we  hope  to 
get  from  this  measure,  if  possible,  without  stirring  that  ill-feeling.  If  we  can  get  it  with- 
out any  of  the  political  rancor,  any  of  the  feeling  of  bitterness  that  vvill  be  engendered  by 
having  this  question  of  the  railroad  commission  thrown  into  every  political  campaign, 
would  it  not  be  desirable  that  we  should  have  it  as  free  from  excitement  and  as  free  from 
this  class  interest  as  possible?  Therefore,  in  undertaking  to  pass  upon  the  question  as 
to  whether  we  shall  elect  these  particular  officers,  we  ought  to  recognize  that  as  to  them 
there  are  circumstances  and  reasons  that  apply  that  do  not  apply  to  any  others,  that 
should  induce  us  not  to  elect  them  by  popular  vote. 

On  motion  of  Mr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

Mr.  Lindsay  moved  that  when  the  Convention  adjourn  to-day  at  2  o'clock,  it  be  to 
meet  to-morrow  at  12  o'clock  in  the  Mechanics  Institute  Hall. 

The  motion  was  agreed  to. 


2544 


DEBATES  OF  THE  CONSTITUTIOJTAL  CONVEISTTION'  OF  VIRGINIA. 


The  hour  of  2  o'clock  having  arrived,  the  Convention  adjourned  to  meet  at  the  hall  of 
the  Mechanics'  Institute,  Richmond,  Va.,  to-morrow,  Wednesday,  February  19,  1902,  at  12 
o'clock  M. 


WEDNESDAY,  February  19,  1902. 

The  Convention  met  at  12  o'clock  M. 
Prayer  hy  Rev.  James  Nelson. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations,  Mr. 
Ayers  in  the  chair. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Danville  to  Section  3. 

The  gentleman  from  Richmond  city  (Mr.  Meredith)  has  the  floor. 

Mr.  Meredith:  Mr.  Chairman  and  gentlemen  of  the  committee,  at  the  close  of  last 
evening's  session  we  were  discussing  the  question  as  to  whether  these  railroad  com- 
missioners should  be  elected  by  the  people  or  be  appointed  by  the  Governor  as  set  forth 
in  the  report  of  the  committee,  with  the  power  reserved  that  if  at  any  future  time  the 
■people  of  the  State  should  deem  it  desirable  that  these  commissioners  should  be  elected 
by  the  people  or  be  appointed  by  the  Governor  as  set  forth  in  the  report  of  the  com- 
mittee, with  the  power  reserved  that  if  at  any  future  time  the  people  of  the  State  should 
deem  it  desirable  that  these  commissioners  should  be  elected  by  the  people  the  General 
Assembly  would  have  the  power  to  so  order. 

I  called  your  attention  on  yesterday  to  a  fact  of  which  you  are  evidently  aware,  that 
this  class  of  officers  is  intended  to  restrain  and  control  a  particular  class  in  the  State, 
that  they  are  not  like  the  judiciary  and  other  officers,  intended  to  administer  justice  to 
everybody;  but  that  they  are  created  rather  as  a  restraint  upon  a  class  of  artificial  per- 
sons, that  are  regarded  as  dangerous  to  the  State.  Under  those  circumstances  we  must 
admit  that  any  popular  election  is  very  apt  to  produce  a  clash  of  class  interests.  I  did 
not  propose  to  elaborate  that  idea  any  further,  because  it  seems  to  me  it  must  be  self- 
evident  to  you  that  when  you  elect  a  railroad  commissioner  you  are  very  apt  to  throw 
into  a  political  campaign  a  very  warm  and,  perhaps,  undesirable  discussion  as  to  what 
shall  be  done  by  any  railroad  commissioner;  and  there  is  apt  to  be  considerable  feeling 
injected  into  every  one  of  our  political  contests.  Under  those  circumstances  I  think  that 
we  ought  to  avoid  that  danger,  and  ought  not  to  elect  them  by  vote  of  the  people  unless 
it  becomes  absolutely  and  manifestly  necessary.  I  do  not  think  there  is  any  doubt  that 
we  can  get  justice  by  having  these  commissioners  appointed  by  the  Governor. 

I  am  as  heartily  in  favor  of  the  Committee's  report  as  anybody  else;  but  I  do  not  de- 
sire that  we  should  start  this  thing  under  conditions  of  undue  excitement.  I  am  one  of 
those  who  believe  that  the  people  have  been  done  as  much  harm  and  as  much  injury  by 
their  unwise  friends  as  they  have  by  their  enemies.  I  think  the  extremes  to  which  some 
of  the  friends  of  the  people  go  are  frequently  as  injurious  to  their  interests  as  are  the 
acts  done  by  those  who  do  not  sympathize  with  them;  and  to  avoid  that,  I  think  wisdom 
has  been  shown  by  the  committee  in  requiring  that  the  installment  of  this  new  depart- 
ment should  be  done  in  a  wise,  in  a  prudent  and  conservative  manner. 

All  that  is  asked  is  that  the  beginning  of  this  proceeding  shall  be  done  in  such  a 
way  that  we  will  have  some  hope  there  will  be  no  undue  excitement  attached  to  it.  I 
frankly  say  to  you  that  if  the  committee's  report  did  not  reserve  to  the  people  the  right 
hereafter  to  elect  these  officers  if  they  desired,  I  should  be  heartily  for  their  election  now 
by  the  people:  but  having  reserved  the  right,  if  this  commission  becomes  too  much 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2545 


controlled  by  the  class  of  Individuals  whom  we  propose  to  control,  if  they  manage  the 
commission  too  much  to  the  injury  of  the  people,  the  General  Assembly  then,  through 
the  people  have  the  right  to  declare  that  they  shall  be  elected  by  the  people. 

Mr.  Chairman,  it  does  seem  to  me  this  provision  gives  us  sufficient  control  over  the 
commission.  It  allows  the  people  to  say,  if  it  becomes  necessary,  that  there  shall  be 
this  popular  election,  and  all  that  is  asked  now  is  that  the  new  system  shall  be  stai'ted 
in  a  conservative  manner.  I  heard  it  intimated  on  yesterda}*  that  we  had  these  corpora- 
tions where  we  want  them,  I  hope  no  such  feeling  as  that  will  be  engendered  in  this 
State.  I  fear  it  will  be  if  we  undertake  to  have  political  discussions  about  this  matter 
too  soon.  Vre  at  least  ought  to  be  able  to  trust  the  present  Governor  of  the  State  enough 
to  believe  that  he  will  appoint  men  who  are  fair  minded,  who  are  prtident,  and  who 
desire  to  be  just  to  all. 

Reserving  the  right,  as  you  do  in  this  report,  that  if  yott  find  this  system  of  creating 
the  commission  by  appointment  is  not  a  wise  one.  to  the  people  hereafter  to  say  that 
they  shall  elect  them  if  they  see  fit.  why  should  Ave  not  try  it?  AVhat  is  the  objection 
to  giving  it  a  fair  trial,  if  you  feel  that  by  this  trial  you  will  get  a  conservative  begin- 
ning in  this  new  departure? 

I  wish  to  call  your  attention  to  one  other  thing,  and  then  I  shall  stibmit  the  matter, 
so  far  as  I  am  concerned.  You  will  recall  the  fact  that  yoti  have  now  abolished  the 
division  of  the  Senate.  There  is,  therefore,  no  longer  any  fear  that  there  will  be  a 
hold-over  ntimber  of  members  of  the  State  Senate,  who  will  prevent  any  such  legislation 
as  you  provide  for  in  this  report,  requiring  the  General  Assembly  to  require  these  com- 
missioners shall  be  elected  by  the  people.  You  therefore  have  an  additional  reason  now 
why  it  is  not  necessary,  because  the  members  of  both  Senate  and  the  House  are  to  be 
elected  at  the  same  time  and  are  all  to  be  new  members.  The  desire  of  the  people  that 
these  officers  should  be  elected  by  the  people  could  not  be  blocked  for  four  years.  All 
that  is  necessary  is  for  the  people  to  demand  this  thing,  and  to  make  it  an  issue  in  any 
single  campaign,  and  the  next  succeeding  General  Assembly  will  overturn  this  require- 
ment, and  the  commission  will  be  elected  by  the  people. 

Xov-.  gentlemen,  it  seems  to  me  that  having  reserved  that  power,  having  giA-en  the 
opporttmity  by  one  single  election  to  determine  that  thing,  if  there  is  any  demand  for 
it,  the  people  will  undoubtedly  express  their  wishes  in  a  proper  way.  I  could  see  some 
objection  to  it  if  there  was  a  hold-OA'er  Senate,  becattse  they  cotild  A'ery  readily  block 
the  legislation  desired  by  the  people. 

We  all  know  that  it  is  very  hard  to  keep  popular  feeling  and  popular  wishes  up  to 
such  an  extent  as  to  last  four,  fixe  or  six  years,  as  is  sometimes  necessary.  But  that 
state  of  affairs  will  no  longer  exist  under  this  Constitution.  Under  this  Constitution 
it  will  only  be  necessary  to  make  this  an  issue  in  one  single  campaign,  and  you  will 
be  able  to  have  the  matter  settled  at  one  election  as  to  whether  we  shall  ha^'e  these 
commissioners  elected  by  the  people  or  not.  We  all  desire  to  start  this  thing  in  a 
conserA'atiA'e  manner,  not  so  as  to  shock  the  business  sense  of  this  State,  and  so  that 
the  people  will  feel  that  they  will  get  jtistice. 

If  at  any  time  we  should  believe  this  commission  was  too  much  under  the  control 
of  the  class  it  was  expected  to  control,  the  people  of  this  State  can  say,  in  one  election, 
"  This  method  shall  be  changed  and  it  shall  be  by  election  instead  of  appointment." 

I\Ir.  Ingram:  'Mr.  Chairman  and  gentlemen  of  the  committee.  I  should  not  say 
anything  totiching  this  matter  btit  for  the  fact  that  as  a  member  of  the  committee  my 
silence  might  be  construed  as  not  approving  the  action  of  the  committee  in  putting  the 
appointment  of  the  members  of  this  commission  in  the  hands  of  the  Governor  subject 
to  the  confirmation  by  the  joint  act  of  the  General  Assembly  of  Virginia.  I  desire  to 
say  gentlemen  of  the  committee,  in  the  outset,  that  the  committee  in  bringing  to  the 
attention  of  this  body  the  railroad  commission  bill  was  actuated  by  one  purpose  and  by 
one  purpose  alone.  That  was  to  enact  into  our  organic  law  a  provision  for  a  conser^-a- 
tive  and  efficient  commission  to  see  that  the  rights  of  the  people  of  Virginia  were  pro- 


2546 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tected  as  to  the  making  of  rates  and  schedules  and  the  classification  of  rates  and  all  rules 
and  regulations  governing  transportation  and  transmission  companies. 

When  this  bill  was  first  drafted  it  contained  in  it  a  provision  for  the  election  of 
these  commissioners  by  the  people,  but  upon  reflection  the  committee  was  of  the  opinion 
that  better  service  and  better  officials  could  be  obtained  to  carry  out  the  purposes  and 
objects  of  the  law  by  placing  this  power  in  the  hands  of  our  chief  executive,  safeguard- 
ing it  by  taking  the  appointment  subject  to  the  confirmation  of  both  houses  of  the 
General  Assembly. 

I  would  state  to  the  committee  that  your  committee  was  actuated  by  no  personal 
predilections  for  the  honorable  gentleman  who  now  fills  the  position  of  Governor  of 
Virginia.  They  recognize  in  him  a  most  distinguished  and  competent  official.  To  bor- 
row a  term  of  the  gentleman  from  Danville  the  personal  equation  did  not  enter  into  the 
mode  of  selection  agreed  upon  by  the  Committee  on  Corporations.  If  there  is  one  thing 
that  this  Committee  and  this  Convention  should  seek  to  do  it  is  to  get  upon  this  com- 
mission conservative,  efficient  men,  men  of  information  and  knowledge  touching  the 
affairs  about  which  they  are  to  deal.  It  is  by  opinion,  and  it  is  the  opinion  of  members 
of  the  committee,  that  these  men  can  best  be  obtained  by  putting  the  appointment  in 
the  hands  of  the  Governor  subject,  I  repeat,  to  the  confirmation  of  both  houses  of  the 
General  Assembly.  Of  course,  gentlemen  of  the  committee,  this  is  a  matter  about  which 
we  can  differ,  and  honestly  differ.  I  desire  to  state  here  that  the  purposes  and  objects 
of  this  bill  haa  no  sturdier  champion  than  the  distinguished  gentleman  who  represents 
on  this  floor  the  city  of  Danville,  as  evidenced  by  his  speech  in  this  committee  in  its 
support,  and  who  advocates  the  selection  of  these  commissioners  by  the  people.  It  is 
but  just  to  say  that  he  introduced  one  of  the  commission  bills  before  the  Convention. 
At  the  same  time,  I  submit,  with  the  profoundest  respect  for  his  judgment,  that  in  this 
matter  he  is  in  error  and  instead  of  getting  men  peculiarly  fitted  and  adapted  to  the 
performance  of  the  duties  required  by  this  corporation  commission,  possibly  in  the 
heat  of  a  political  campaign,  some  man  who  plays  to  the  galleries,  some  man  who  is 
not  competent  to  fill  this  important  position,  some  one  Vv^ho  is  unable  to  be  Governor,, 
and  who  is  unable  to  be  Attorney-General  will  be  placed  upon  this  commission.  We 
v/ant  those  who  are  to  fill  these  positions  to  be  of  equal  ability  with  the  head  of  any  of 
the  State  departments,  and  we  believe  that  in  this  way  we  will  bring  about  this  much 
desired  result. 

Do  not  understand  us  as  having  less  confidence  in  the  people  than  these  gentle- 
men who  advocate  the  selection  of  these  officers  by  the  people;  but  we  believe  that 
the  people  as  a  whole  will  not  be  so  well  qualified  to  select,  because  they  will  not 
know  the  peculiar  qualifications  required  as  well  as  the  Governor,  with  the  check  of 
both  houses  of  the  General  Assembly  upon  him. 

I  hope  it  may  be  the  pleasure  of  this  committee  to  sustain  the  Committee  on 
Corporations  in  this  regard.  Their  action  has  been  in  the  interest  of  conservatism, 
and  in  the  interest  of  bringing  about  efficiency. 

Mr.  Bouldin:  Mr.  Chairman,  I  am  unable  to  see  how  the  interests  of  conservatism 
will  be  better  subserved  by  the  nomination  of  this  important  commission  by  the  Gover- 
nor than  by  election  by  the  people.  We  have  already  concentrated  in  the  hands  of  the 
Governor  an  ample  amount  of  power.  The  people  are  fully  able  to  elect  as  able  and 
efficient  a  commission  as  can  be  created  by  appointment  of  the  Governor  or  by  any 
other  method  that  can  be  adopted.  They  elect  the  Governor,  Lieutenant-Governor, 
Attorney-General,  Superintendent  of  Public  Instruction,  Commissioner  of  Agriculture, 
and  Secretary  of  the  Commonwealth.  Why  is  it  that  they  cannot  be  trusted  to  elect  this 
commission  which  is  said  to  be  created  in  order  to  protect  their  rights  from  the  aggres- 
sions of  corporations?  It  is  said  that  the  appointive  method  will  secure  a  more  con- 
servative commission  and  will  keep  the  corporations  out  of  politics  by  simply  changing 
the  mode  of  creating  the  commission.  If  the  corporations  are  brought  into  politics  it 
3?  by  reason  of  the  plan  submJtted  by  the  Corporation  Committee  and  adopted  by  this 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIEGIXIA. 


2547 


tod}-;  and  the  mere  fact  that  the  people  are  called  upon  to  make  the  election  cannot 
drive  the  corporations  more  into  politics  nor  withdraw  them  less  from  politics.  If  they 
are  not  now  fully  in  politics  I  can  conceive  of  nothing  else  that  will  have  a  tendency  to 
carry  them  further  in  that  direction.  The  people  are  able  to  elect  their  Governor,  their 
General  Assembly,  and  many  other  officers  and  there  are  no  sufficient  reasons,  and  I  have 
heard  none  alleged  here,  why  they  cannot  elect  these  commissioners.  If  these  commis- 
sioners are  intended,  as  my  distinguished  friend  has  said,  for  the  protection  of  the  peo- 
ple against  the  corporations,  let  the  people  have  a  voice  in  their  selection.  I  do^not 
believe  that  there  is  any  more  sure  mode  of  selecting  able  and  efficient  men  than  to 
have  them  voted  for  by  the  people.  I  have  not  yet  lost  my  faith  in  their  capacity  to 
govern  themselves  and  to  select  their  officers.  They  are  as  keenly  and  intelligently 
alive  to  their  interests  as  their  representatives  can  be. 

I  believe  that  if  the  election  of  this  commission  is  referred  to  the  people  it  will  be 
impossible  to  have  a  weak  or  inefficient  commission  put  upon  us.  The  whole  range  of 
the  State  will  be  thrown  open  for  the  selection  and  no  man  without  ability  and  without 
capacity  wilh  in  my  judgment,  ever  receive  the  endorsation  of  the  people  of  the  State, 
in  order,  therefore,  Mr.  Chairman  that  we  may  secure  an  able  commission 
and  one  that  will  protect  the  rights  of  the  people  against  corporations  and 
in  order  that  conservatism  may  control  in  the  inauguration  of  this  commission 
I  beg  this  body  to  give  the  power  of  election  to  the  people.  "Why  is  it,  I 
ask,  that  this  able  committee,  for  it  is  an  able  one— and  I  desire  to  offer  the  tribute  of 
my  unqualified  admiration  for  the  ability  and  fidelity  with  which  its  distinguished 
chairman  and  members  have  devoted  themselves  to  the  subject  before  them — why  is  it, 
I  ask,  that  this  committee  has  provided  ;for  the  election  of  the  commission  by  the  peo- 
ple in  1909,  if  the  people  should  then  demand  it?  Is  it  not,  sir,  because  the  committee 
recognizes  that  the  body  of  the  people  is  fully  able  to  deal  with  this  subject  and  that  it 
can  safely  be  entrusted  to  their  hands?  If  the  people  will  be  able  to  elect  the  commis- 
sioners in  1909  why  are  they  not  able  to  elect  them  now?  There  can  be  no  reasons 
whatever  applicable  to  the  election  in  1909  that  do  not  apply  with  equal  force  to  an 
election  now.  In  my  judgment,  we  should  concentrate  no  more  power  in  the  hands  of 
the  executive.    We  have  already  invested  that  officer  with  ample  powers. 

I  refer  to  no  special  Governor.  For  the  distinguished  occupant  of  the  executive 
chair  at  this  time  I  entertain  the  highest  respect  and  admiration  and  I  would  as  soon 
see  him  intrusted  with  this  high  power  as  any  man  within  the  limits  of  the  Common- 
wealth: but  it  is  a  power  that  should  be  given  to  no  Governor;  we  have  already  invested 
the  executive  with  powers  enough.  Let  us  not  forget  the  people,  the  source  of  all 
power.  Let  us  en-deavor  to  retain  something  of  the  people's  government  in  the  people's 
hands.  Let  us  remember  that  our  work  may  be  submitted  to  the  people  and  let  us 
recognize  the  great  interest  they  have  in  their  government.  Not  all  the  provisions 
adopted  by  the  Convention  up  to  this  time  have  met  with  the  cordial  support  of  the 
people  nor  even  with  that  degree  of  favor  throughotit  the  State  that  would  warrant  us 
in  ignoring  their  interests  and  wishes  in  a  matter  of  such  importance  as  the  creation  of 
this  commission  with  its  large  and  important  powers.  Mr.  Chairman,  while  I  am  not 
one  of  those  who  give  a  blind  adhesion  to  all  demands  made  in  the  name  of  the  people, 
yet  I  earnestly  believe  that  we  should  observe  a  conservative  regard  to  their  wishes  in 
the  election  of  this  important  commission.  The  further  extension  of  power  to  repre- 
sentatives, bureaus  and  commissions,  should  be  exercised  with  the  utmost  care  and  we 
may  well  pause  and  consider  before  we  pronounce  the  people  incapable  of  electing  the 
members  of  this  commission  created  for  their  special  protection. 

I  trust,  gentlemen,  that  it  will  be  your  pleasure,  in  order  that  we  may  have  an 
able  and  conservative  commission,  not  to  take  the  power  from  the  people,  but  to  leave 
It  with  them  as  contemplated  by  the  amendment  offered  by  the  gentleman  from  Danville. 

At  this  point  Mr.  Parks  took  the  chair. 

Mr.  Ayers:    Mr.  Chairman,  "  w'hen  the  doctors  disagree  the  disciples  then  are  free." 


2548  DEBATES  OF  THE  CONSTITUTIOJ^AL  CONVENTION  OF  VIRGINIA. 


The  members  of  this  committee  seem  to  be  divided  to  some  extent  upon  this  question. 
Whilst  I  have  no  objection  to  conferring  upon  the  executive  the  power  to  appoint  a 
great  many  of  the  boards  and  officers  which  we  have  provided  for,  and  have  had  the 
the  honor  to  report  provisions  which  have  been  adopted  as  articles  in  this  Constitution  by 
which  he  appoints  boards  to  select  officers  for  some  of  the  most  important  institutions 
of  this  State;  yet  I  think  that  in  this  instance,  considering  the  importance  of  the  office 
of  corporation  commissioners  that  they  ought  to  be  elected  by  the  people.  My  friend 
from  the  city  of  Richmond  advocated,  and  I  believe  I  seconded  him,  the  election  of  the 
judges  of  the  Supreme  Court  of  Appeals  by  the  people.  One,  at  least,  of  this  commission, 
is  required  to  possess  the  qualifications  of  a  judge  of  the  Supreme  Court  of  Appeals. 
If  the  people  are  qualified  to  elect  the  judges  of  that  court,  they  certainly  ought  to  be 
qualified  to  elect  this  one  member,  at  least,  of  this  commission.  I  believe,  Mr.  Chair- 
man, in  trusting  as.  many  matters  to  the  people  as  possible.  I  believe  that,  in  the  main, 
although  when  swayed  by  popular  prejudice  and  excitement,  at  times,  they  may  do 
things  that  will  not  be  approved  of,  even  by  themselves,  soon  afterwards,  yet  they  will 
turn  as  the  needle  to  the  pole  and  can  be  relied  upon  and 'more  often  relied  upon  to  be 
right  on  all  subjects  than  any  other  tribunal  or  body  to  whom  you  can  entrust  power.* 

Mr.  Braxton:  So  far  as  my  information  goes,  and  I  think  I  am  correct,  the  Com- 
mittee on  Corporations  is  unanimous  in  recommending  this  method  of  appointment. 

Mr.  Blair:    I  will  state  that  I  was  not  in  favor  of  it. 

Mr.  Braxton:    I  was  not  aware  of  that. 

Mr.  Ayers:  I  believe  that  we  will  have  better  methods  of  submitting  questions  to 
the  people  than  we  have  had  for  the  last  few  years.  I  believe  that  there  has  been 
aroused  in  this  State  a  determination  to  give  a  fair  expression  of  popular  sentiment  on 
questions  that  are  brought  before  them.  I  believe  that  the  opportunities,  which  have 
existed  for  the  last  few  years,  of  cliques,  rings  and  combinations  to  thwart  the  will  of 
the  people  will  not  exist  to  the  extent  that  they  have  existed  in  the  past. 

I  believe  that  when  we  have  got  a  number  of  important  officers  to  be  elected  by  th-e 
people  you  vnll  fi.nd  in  every  community  an  interest  being  taken  in  sending  delegates  to 
nominating  conventions  of  the  different  counties  such  as  has  never  been  manifested  be- 
fore; and  you  vv^ill  thereby  bring  about  an  interest  all  over  the  State  which  will  redound 
in  the  selection  of  men  qualified  to  fill  these  positions.  I  would  like  to  ask  how  the  Gov- 
ernor would  select  a  man  to  fill  one  of  these  offices — by  reason  of  his  qualifications.  It  is 
well  known  that  to  get  a  competent  traffic  man  you  have  to  go  to  one  of  the  railroad  com- 
panies. You  could  not  command  his  services  for  the  minimum  salary  you  have  pro- 
vided for  in  the  Constitution  and  therefore  the  Governor  would  have  to  select  the  man. 
He  would  have  to  run  the  risk  of  appointing  a  man  v/ho  would  not  represent  the  interests 
of  the  people  or  he  would  have  to  do  as  the  people  will,  select  a  man  of  intelligence  and 
capacity  and  depend  upon  his  solving  these  questions  and  learning  the  rules  and  regula- 
tions of  transportation  and  transmission  companies  and  thus  become  qualifi-ed.  That  is 
all  the  Governor  can  do.  Certainly  the  people  can  do  it  as  well.  I  believe  that  now,  at 
the  outset  and  commencing  with  the  adoption  of  this  article,  the  power  to  elect  these 
commissioners  should  be  left  in  the  hands  of  the  people, 

Mr.  Barbour:  Mr.  Chairman,  I  do  not  think  there  is  any  member  of  this  Convention 
who  has  been  more  deeply  interested  than  I  have  been  in  the  success  of  the  matter  which 
is  now  engaging  our  attention;  nor  do  I  believe  that  there  is  any  member  of  this  Con- 
vention who  has  a  more  profound  respect  for  the  judgment  and  capacity  of  the  people  of 
Virginia  for  self  government.  I  have  deemed  it  my  duty  to  vote  for  the  election  of  every 
State  officer,  including  the  judges  of  our  courts,  by  the  people,  whenever  an  opportunity 
has  been  presented  to  me  upon  the  floor  of  this  Convention.  I  did  it  because  I  thought  it 
was  safe  to  do  it  and  that  we  could  safely  trust  that  power  to  the  people.  In  this  respect, 
however,  I  believe  that  our  Committee  on  Corporations  has  pursued  the  wise,  safe  and 
conservative  course  of  action.  They  have  preserved  to  the  people  every  right  that  they 
can  justly  ask,  and  at  the  same  time  they  have  arranged  a  mode  and  manner  of  appoint- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA. 


2549 


ment  by  which  this  commission  may  be  put  into  operation  under  circumstances  most 
favorable  for  its  wise  and  conservative  operation.  All  we  want,  Mr.  Chairman,  is  that 
justice  shall  be  done  to  the  people  of  Virginia.  All  we  want  is  a  conservative  body  of 
men  who  will  deal  out  equal  and  exact  justice  between  these  corporations  and  the  people. 
In  view  of  the  liability  of  the  people  to  be  biased  in  their  own  interest  and  in  their  own 
behalf,  I  do  not  think  it  would  be  wise  to  start  out  with  this  commission  by  throwing 
these  offices  out  as  something  to  be  scrambled  for  in  the  field  of  politics.  It  was  safe,  in 
my  opinion  Mr.  Chairman,  to  entrust  the  election  of  the  judges  of  the  Supreme  Court  to 
the  people,  though  some  of  the  gentlemen  who  now  favor  the  election  of  these  officers  by 
the  people  were  unwilling  to  trust  the  people  of  Virginia  with  the  election  of  their  judges. 
It  seems  to  me  the  danger  of  not  getting  conservative  men  by  electing  these  officers  by 
the  people  is  ten  times  as  great  as  would  be  the  danger  of  electing  judges  of  our  courts 
by  the  people,  because  this  is  a  new  institution  and  it  has  not  the  traditions  of  the  bench 
and  the  traditions  of  the  bar  back  of  it  to  act  as  a  conservative  influence,  as  they  w^ould 
operate,  I  believe,  in  the  election  of  judges.  For  that  reason  I  think  this  commission 
should  be  started  out  under  conservative  influences.  I  believe  that  the  action  taken  by 
this  committee  has  thrown  around  it  every  safeguard  that  could  be  safely  thrown  around 
it.  In  the  first  place,  the  nominations  of  the  Governor  have  to  be  ratifi_ed  by  the  General 
Assembly  in  joint  session.  That  is  one  safeguard.  Another  safeguard  is  the  fact  that 
these  very  corporations  themselves  know  that  if  they  undertake  to  dictate  the  appoint- 
ment of  these  commissioners  or  undertake  to  infltience  their  action  unduly,  a  demand 
will  arise  from  the  people  of  Virginia  that  these  officers  shall  be  elected  by  the  people. 
That  will  be  another  conserving  influence.  Again,  the  Governor  himself  will  be  jealous 
of  this  power.  He  will  not  want  it  taken  away  from  him,  and  naturally  so.  He  will 
know,  at  all  times,  that  the  Legislature  is  standing  there,  jealous  of  his  power,  always 
willing  and  always  ready  to  take  povrer  from  him  if  he  abuses  it.  They  stand  there  all 
the  time  ready  to  turn  him  down  and  to  rebuke  any  abuse  of  power,  not  only  hy  refusing 
to  confirm  his  nominations,  but  by  passing  a  law  that  he  shall  have  no  further  power  to 
make  the  nominations  at  all.  If  there  is  any  abuse  of  this  power,  can  there  be  a.ny  doubt 
that  this  Legislature,  elected,  as  has  been  pointed  out  by  the  gentleman  from  Richmond, 
fresh  from  the  people  every  two  years,  will  always  be  ready  and  always  be  willing  to 
carry  out  the  wishes  of  the  people,  if  this  experiment  which  we  are  trying  in  the  way 
of  appointment  by  the  Governor  does  not  operate  properly? 

There  is  always  wisdom,  Mr.  Chairman,  in  having  two  courses  of  action  open  to  you. 
Suppose  that,  in  the  outset,  we  elect  these  officers  by  the  people,  and  it  should  turn  out 
not  to  be  wise.  T\Tiat  remedy  will  you  have?  It  would  be  impossible  to  correct  it? 
VvTiereas,  if  the  plan  adopted  by  the  committee  turns  out  to  be  unwise  and  unsatisfactory, 
you  have  recourse  to  this  other  mode  of  procedure.  I  think  the  plan  which  they  have 
adopted  of  putting  this  power  in  the  hands  of  the  Executive,  subject  to  confirmation  by 
the  General  Assembly,  is  much  waser  than  to  put  the  power  of  appointment  in  the  Legis- 
lature itself,  with  a  similar  provision  for  election  by  the  people  after  six  years,  and  for 
this  reason:  The  Legislature  will  always  be  jealous  of  the  power  of  the  Executive,  and 
will  resent  any  abuse  of  that  power;  whereas,  they  would  be  slow  to  strip  themselves  of 
the  power  of  electing  these  commissioners.  It  does  seem  to  me  that,  in  view  of  all  the 
difficulties  and  doubts  that  surround  this  matter,  the  action  of  this  committee  has  been 
eminently  wise  and  conservative,  and  should  be  ratified  by  the  Committee  of  the  Whole. 

Mr.  Keezell:  I  was  trying  to  prepare  an  amendment  to  offer  in  lieu  of  the  amend- 
ment of  the  gentleman  from  Danville;  but  I  have  not  yet  got  it  quite  prepared.  I  will 
say,  however,  that  the  object  of  it  is  this.  I,  for  one,  favor  the  election  of  these  commis- 
sioners by  the  people.  However,  I  recognize  the  difficulties  surrounding  that  proposition 
now.  We  have  no  general  election  in  the  State  for  almost  four  years.  If  this  Constitu- 
tion goes  into  effect,  I  take  it  that  much  would  depend  upon  the  schedule  that  would  be 
submitted  by  this  Convention.  I  do  not  know  what  that  will  be.  The  idea  v/hich  I  have 
always  had  vrith  reference  to  this  matter  is,  that  there  should  be  a  temporary  appoint- 


3550  DEBATES  OF  THE  COJS'STITUTIONAL  CONVENTIOIN^  OF  VIRGINIA, 

ment  of  these  commissioners  by  the  Governor,  confirmed  by  the  General  Assembly  as 
provided  for  in  this  article  of  the  Corporations  Committee  report,  and  that,  commencing 
with  the  first  general  election,  these  commissioners  should  be  elected  by  the  people. 
The  amendment  which  I  propose  to  offer  is  to  the  effect  that  upon  the  adoption  of  this 
Constitution  the  Governor  shall  nominate  or  appoint  these  commissioners,  subject  to  con- 
firmation by  the  General  Assembly  as  provided  in  this  article,  and  that  at  the  general 
election  which  is  to  be  held  in  this  State  in  November,  1905,  there  shall  be  elected  three 
corporation  commissioners,  the  terms  of  their  office  to  be  as  provided  for  in  this  article; 
that  is,  one  for  two  years,  one  for  four  years,  and  one  for  six  years;  and  that  at  each  re- 
curring election, two  years  apart,  there  should  be  elected  one  of  these  commissioners  by 
the  people. 

I  believe  that  would  be  a  proper  solution  of  this  problem,  for  the  reason  that  Vv^e 
would  in  this  way  be  able  to  put  this  ordinance  into  operation  at  an  earlier  day  than  we 
will  under  any  other  provision,  and  that  this  will  have  had,  possibly,  the  advantage,  if 
there  is  any  advantage  to  be  gained  by  that,  as  is  claimed  by  the  advocates  of  the  report 
of  the  committee,  of  having  men  selected  to  hold  these  positions  who  will  at  least  be  puf 
upon  trial  for  that  length  of  time,  and  if  they  prove  to  be  wise  appointments,  the  people 
no  doubt  will  confirm  them.  On  the  contrary,  if  the  unwisdom  of  the  appointment  has  been 
demonstrated,  the  people  will  have  an  opportunity  then  to  rectify  the  whole  matter  and 
take  charge  of  it.  It  seems  to  me  that  would  be  a  provision  that  would  be  conservative. 
It  would  put  this  provision  into  operation  at  a  very  early  day,  and  yet  leave  in  the  hands 
of  the  people  the  absolute  control  of  this  commission  for  all  time  to  come,  by  the  selec- 
tion of  the  commissioners.  That  is  the  idea  I  wish  to  incorporate  in  the  amendment  I 
propose  to  offer.  The  gentleman  from  Louisa  (Mr.  Gordon)  has  prepared  an  amendment 
that  I  believe  will  m.eet  the  object  I  wish  to  attain.  I  am  sure  there  will  be  no  trouble 
about  amending  the  report,  if,  in  the  judgment  of  the  committee,  it  ought  to  be  done. 

Mr.  Braxton:  The  suggestion  I  wish  to  make  is  that  the  purpose  might  be  accom- 
plished— I  do  not  wish  to  be  understood  as  favoring  your  amendment — but  it  might  be 
accomplished  by  amending  the  last  clause  of  Section  3  by  changing  1909  to  190i5,  striking 
out  the  word  "may"  and  inserting  the  word  "shall." 

Mr.  Keezell:  I  think  that  is  proper,  except  that  to  carry  out  my  idea  in  full  there 
would  be  required  some  amendment  in  line  7,  and  also  in  line  8,  because  the  idea  I  had 
was  that  these  men  should  not  be  appointed  for  a  six-year  term,  but  that  the  whole  of 
them  should  be  merely  temporary  appointments,  and  that  they  should  go  out  on  the  1st  of 
January,  1906,  those  elected  by  the  people  in  the  fall  of  1905  to  be  eltcted  for  four  years 
and  six  years. 

I  v/ish  LO  send  to  the  desk  now  the  amendment  suggested  by  the  gentleman  from 
Louisa  (Mr.  Gordon),  which  I  think  will  accord  with  the  sense  of  this  body. 

The  Chairman:  Does  the  gentleman  offer  that  as  a  substitute  for  the  amendment 
offered  by  the  gentlem^an  from  Danville  (Mr.  Withers)  ? 

Mr.  Keezell:    Yes,  sir. 

The  Chairman:    The  Secretary  will  read  the  proposed  amendment. 
The  Secretary  read  as  follows: 

In  line  59  of  Section  3,  strike  out  all  after  the  figures  "1909"  to  the  end  of  the  section, 
and  insert  the  words  "the  said  commissioners  shall  be  elected  by  the  qualified  voters  of 
the  State  at  large."    The  section  as  amended  would  read: 

After  the  first  day  of  .January,  1909,  the  said  commiissioners  shall  be  elected  by  the 
qualified  voters  of  the  State  at  large. 

Mr.  R.  L.  Gordon:  Mr.  Chairman,  I  desire  to  withdraw  that  amendment  until  after 
the  amendment  of  the  gentleman  from  Danville  (Mr.  Withers)  has  been  voted  on. 

Mr.  Claggett  B.  Jones:  Now,  Mr.  Chairm.an,  it  seems  to  me  it  is  very  necessary  that 
there  should  be  a  conservative  commission  in  the  outset  of  this  work.    In  other  words,  if 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2551 


the  corporations  of  the  State  of  Virginia  find  out  that  no  injustice  is  to  be  done  them, 
that  equal  and  even-handed  justice  is  to  be  meted  out  both  to  the  railroads  and  to  the 
other  corporations  of  the  State,  as  well  as  to  the  people,  they  will  be  satisfied  that  this 
matter  shall  stand  as  it  is,  that  the  commissioners  shall  be  appointed  by  the  Governor; 
but  if  there  is  an  apprehension  on  the  part  of  the  corporations  of  the  State,  it  is  but 
natural  that  they  should  wish  to  control  this  commission. 

What  will  be  the  conditions?  As  I  conceive  them,  no  mortal  man  knows  who  is  to 
<3onstitute  the  electorate  of  the  State.  Nobody  knows  who  are*  to  be  the  voters  of  the 
State  after  his  Constitution  is  adopted.  It  is  utterly  impossible  to  saj  who  is  to  be  elimi- 
nated and  who  hereafter  are  to  elect  the  officers  of  the  State.  Now,  you  put  the  rail- 
roads in  the  position  of  wishing  to  control  this  commission  and  they  have  the  oppor- 
tunity, and  in  my  judgment  will  say  to  either  political  party  which  may  be  out  of  power, 
"We  will  permit  you  to  nominate  every  other  officer  to  be  elected  by  the  people,  pro- 
vided we  may  nominate  this  railroad  commission."  "\^Tiat  then?  "You  permit  us  to 
name  the  commission,  and  we  v>'ill  provide  all  the  necessary  sinews  of  war."  It  seems  to 
me,  Mr.  Chairman,  we  will  have  a  condition  in  politics  the  like  of  which  has  never  been 
seen  in  this  State.  There  will  be  trading  and  countertrading,  and  the  corporations  of  the 
State  will  make  every  officer  to  be  elected  by  the  people  subservient  to  the  election  of 
the  members  of  this  commission. 

Therefore,  Mr.  Chairman,  it  seems  to  be  if  we  could  first  constitute  a  commission, 
conservative  in  its  character,  which  would  show  to  these  corporations  that  no  injustice 
would  be  done  them,  then  they  would  be  satisfied  that  the  matter  should  forever  remain 
out  of  politics,  certainly  so  long  as  no  injustice  was  done  them. 

Mr.  R.  L.  Gordon:  Mr.  Chairman,  it  is  with  the  utmost  diffidence  that  I  disagree 
with  this  distinguished  committee.  I  think,  sir,  the  work  they  have  done  is  perhaps  the 
most  important  work  that  has  been  done  by  any  committee  of  this  body,  and  it  is  well 
done.  But,  Mr.  Chairman,  the  very  importance  of  this  work  constrains  me  to  respond  to 
such  arguments  as  my  friend  from  King  and  Queen  (Mr.  Jones)  has  made  here,  to  show 
that  these  people  should  not  be  elected  by  the  qualified  voters  of  the  State.  He  says  he 
wants  a  conservative  commission.  Why,  sir,  I  believe  the  m.ost  conservative  commis- 
sion we  could  get  would  be  a  commission  elected  by  the  qualified  voters  of  the  State  of 
Virginia.  I  do  not  believe  all  the  wisdom  of  the  Sta.te  is  centered  in  this  body.  I  do  not 
believe  all  the  wisdom  of  the  State  is  represented  in  this  Committee  on  Corporations, 
though  I  have  the  utmost  respect  for  the  intelligence  and  virtue  of  those  gentlemen;  but 
I  want  to  call  the  attention  of  this  body  to  the  principle  of  electing  officers  by  the  people 
at  large. 

It  seems  to  me,  Mr.  Chairman,  we  have  forgotten  some  of  the  democratic  teachings 
of  our  forefathers,  and  that  the  suffrage  conditions  in  this  State  have  so  frightened  us 
that  we  are  unwilling  to  trust  to  the  people  of  the  State  the  selection  of  their  most 
important  officers. 

Mr.  Pettit:  Have  not  those  principles  of  our  forefathers  that  you  refer  to  fallen  into 
innocuous  desuetude? 

Mr.  R.  L.  Gordon:  I  trust  not.  sir.  At  any  rate,  if  they  have  fallen  into  innocuous 
desuetude,  it  is  time  we  revived  them. 

I  want  to  say,  Mr.  Chairman,  that  the  principle  upon  which  the  people  elect  their 
officers  is  that  every  man  is  interested  in  the  general  welfare,  and  that  the  ordinary  citi- 
zen will  always  vote  to  promote  the  general  welfare.  I  do  not  believe  this  commission  is 
to  be  an  enemy  to  the  railroad  people.  I  do  not  believe  we  have  to  elect  it  as  an  enemy 
to  the  railroad  people.  I  believe  the  time  will  come  when  these  distinguished  lawyers 
who  have  fought  this  proposition  will  welcome  it  as  a  protection  to  the  railroads  of  the 
State,  and  I  do  not  believe  the  people  of  Virginia  want  to  elect  men  who  will  not  do  fair 
and  even-handed  justice  between  them  and  the  railroad  corporations. 

Some  of  these  gentlemen  who  advocated  the  election  of  the  Supreme  Court  of  Appeals 
by  the  people  are  now  taking  the  ground  that  they  are  opposed  to  electing  this  commis- 


2552 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


sion  by  the  people.  I  want  to  ask  these  gentlemen  if  the  Court  of  Appeals  is  not  the 
final  arbiter  over  these  very  questions  which  the  commission  may  settle.  The  Court  of 
Appeals  is  the  court  of  final  resort  that  will  determine  at  last  every  question  passed  upon 
by  this  commission;  and  the  gentlemen  who  have  voted  to  elect  that  court  by  the  people 
now  come  and  tell  us  that  the  people  ought  not  to  elect  this  commission. 

Mr.  Barbour:  The  gentleman,  I  believe,  voted  against  the  election  of  judges  by  the 
people.  I  would  be  glad  if  he  would  explain  why  it  is  that  the  people  are  not  competent 
to  elect  judges  to  pass  on  disputes  between  man  and  man,  between  citizens,  but  they  are 
competent  to  elect  a  tribunal  to  pass  on  disputes  purely  between  citizens  on  one  side  and 
corporations  on  the  other. 

Mr.  R.  L.  Gordon:  Mr.  Chairman,  the  gentleman,  in  Yankee  fashion,  answers  the 
question  I  have  just  been  asking  him  by  asking  another  one.  I  can  very  readilj^  respond 
to  the  gentleman.  This  committee  has  provided  that  the  Supreme  Court  of  Virginia  shall 
be  the  final  arbiter  in  all  these  questions.  Now,  you  voted  to  elect  that  final  court  by 
the  people.  I  say  if  you  can  vote  to  elect  the  final  court  by  the  people,  why  can  you  not 
vote  to  elect  the  intermediate  court  by  the  people? 

Not  that  only,  Mr.  Chairman,  but  I  want  respectfully  to  call  the  attention  of  this  body 
to  the  danger  of  confining  this  great  power  to  the  hands  of  any  one  man.  I  have  the 
utmost  respect  for  our  present  executive.  I  did  all  I  could  to  elect  him;  but  I  am  not 
willing  to  trust  him  or  any  other  one  man  in  Virginia  with  this  tremendous  power.  I  had 
rather  trust  the  people  of  the  State  than  any  Governor  Virginia  has  ever  had  or  ever  will 
have. 

These  gentlemen  say  a  demagogue  will  be  elected,  that  some  man  will  get  up  and  will 
pledge  himself  beforehand  that  he  will  fix  a  particular  rate  in  order  to  get  elected.  I  do 
not  believe  a  man  who  would  take  that  position  on  the  stump  of  Virginia  could  get  the 
vote  of  a  single  county  in  the  State.  The  people  would  not  vote  for  any  man  unless  that 
man  was  manly  enough  to  tell  them  he  would  never  decide  a  question  until  he  heard  all 
the  evidence  and  that  he  then  intended  to  do  what  was  just  and  fair  between  the  litigants 
before  his  court. 

It  is  the  same  old  cry,  Mr.  Chairman.  It  is  because  we  are  afraid  to  trust  the  people. 
If  we  are  willing  to  trust  the  people  to  make  the  Governor,  why  not  trust  the  people  to 
make  this  commission?  Is  the  Governor  any  better  after  the  people  have  selected  him 
than  he  Vv^as  before? 

But,  again,  Mr.  Chairman,  suppose  our  friends,  the  railroad  people,  on  the  other 
hand,  come  to  the  Governor  when  he  is  to  appoint  these  men  and  say  to  him,  as  they 
have  said  to  this  body,  "  If  you  appoint  this  particular  man  you  will  ruin  this  State. 
You  must  appoint  my  man."  The  influence  of  the  corporations  of  the  State  will  be  ten 
times  as  great  in  the  selection  of  these  officers  if  they  are  appointed  by  any  appointive 
body,  but  I  care  not  what  it  may  be. 

If  any  injustice  be  done  by  the  ruling  of  this  commission,  you  have  the  court  of 
appeals  sitting  over  them,  and  that  is  elected  by  the  Legislature.  A  party  has  only  to 
take  an  appeal  and  have  the  decisions  of  this  commission  corrected.  If  that  commission 
shall  deny  equal  justice  to  the  people,  where  will  you  get  your  remedy?  The  Court  of 
Appeals  will  protect  the  corporations.  The  Court  of  Appeals — and  I  say  it  with  the 
utmost  respect  for  that  tribunal — has  protected  the  corporations.  You  are  now  engaged 
in  passing  a  bill  here,  the  fellow  servant  bill,  for  the  purpose  of  overturning  the  decisions 
of  that  court  in  favor  of  the  corporation  and  against  the  individual;  and  I  say  you  can 
safely  trust  that  court,  and  these  gentlemen  know  you  can  safely  trust  that  court,  to 
protect  the  railroad  interests  of  the  State. 

I  merely  desire  to  ask  that  when  we  have  done  this  great  work — because  in  my 
judgment  it  is  the  greatest  piece  of  legislation  that  has  been  accomplished  in  Virginia 
since  the  close  of  the  war — gentlemen  of  the  committee  will  not  leave  it  incomplete, 
but  will  complete  it  by  saying  they  will  trust  the  people  to  select  a  'great  court,  that 
will  be  fair,  and  that  will  dispense  even-handed  justice.    The  people  of  the  State  do 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2553 


not  want  anything  but  justice — fair  and  even-handed  justice — to  the  corporations  on  the 
one  hand,  and  to  the  people  of  Virginia  on  the  other. 

Mr.  Kendall:  Mr.  Chairman,  I  thought  until  to-day  that  this  matter  was  to  be 
settled  in  accordance  with  the  report  of  the  committee  with  almost  unanimity,  and  I 
am  a  little  surprised  and  deeply  regretful  that  the  able  gentlemen  who  have  risen  here 
today  to  oppose  this  report  in  this  regard  have  felt  called  upon  to  do  so.  I  feel  myself 
that  the  very  heart  of  this  whole  measure  is  being  struck  at  by  the  proposition  to  elect 
these  commissioners  by  the  people. 

I  give  place  to  no  man  in  my  confidence  in  the  people.  I  believe  their  impulses 
are  always  good  and  are  generally  correct;  and  wherever  any  great  political  or  constitu- 
tional question  is  involved,  where  any  great  question  of  political  liberty  is  involved^ 
they  may  be  implicitly  relied  upon,  and  should  always  be  relied  upon;  but,  gentlemeii, 
Y>^ill  anybody  contend  that  the  people  are  specially  fitted  to  pass  upon  the  technical 
skill  of  men  for  this  or  any  other  particular  line  of  duty?  Is  it  not  a  fact  that  it  is 
necessary  very  often  to  search  out  among  the  people  with  care  and  patience  and  time, 
by  some  one  who  has  the  time  and  the  patience,  to  find  men  fitted  to  execute  the  great 
duties  in  positions  where  technical  skill  is  required. 

■\Vhy,  gentlemen,  suppose  that  because  we  go  into  a  political  convention  and  there 
decide  the  destinies  of  the  State  upon  great  political  issues,  that  we  are  also  capable  as 
a  people  of  deciding  all  other  questions  in  which  the  interests  of  the  people  are  involved. 
What,  Mr.  Chairman,  is  tne  procedure  of  political  conventions?  They  go  there  in  a 
great  multitude.  Trained  orators  arise  before  them  and  advocate  the  interests  of  their 
special  nominee.  The  nominee  himself  very  often  comes  upon  the  stand,  and  with 
captivating  eloquence  wins  the  hearts  of  the  people.  They  find  he  is  a  great  orator, 
perhaps  a  great  man.  Their  whole  heart  and  interest  become  enlisted  in  his  cause, 
and  they  believe  he  is  the  man  they  want.  It  may  be  he  is  a  good  man,  a  great  orator 
and  a  great  man,  but  he  may  be  the  very  last  man  who  should  be  called  upon  to  fill 
some  place  of  technical  skill. 

Mr.  Chairman,  I  Avas  struck  and  much  impressed  with  the  point  made  by  the  gen- 
tleman from  King  and  Queen  (Mr.  Jones  J  when  he  told  you  that  so  soon  as  this  becomes 
a  question  of  election  by  the  people,  the  railroads  would  at  once  if  they  felt  that  their 
interest  was  in  jeopardy,  inevitably  say  to  any  faction  in  the  convention  that  would 
make  the  nomination,  or  if  they  failed  to  succeed  in  any  one  convention,  then  to  the 
opposing  party,  "  We  are  able  and  willing  to  supply  the  sinews  of  war  to  carry  on  this 
election,  and  you  may  have  the  benefit  of  it,  provided  we  are  permitted  to  nominate 
these  candidates  to  the  office  of  corporation  commissioner."  But  sir,  apart  from  that, 
whether  that  is  true  or  not — and  I  believe  it  would  be  true — what  will  you  find  here  in 
the  State  of  Virginia?  You  will  find  these  offices  provided  with  this  attractive  salary 
of  three,  or  four,  or  five  thousand  dollars.  We  do  not  know  what  it  is  to  be.  Does 
anybody  for  an  instant  doubt  that  there  will  come  clamoring  from  all  sections  of  the 
State  a  lot  of  candidates  for  this  position,  good,  bad  and  indifferent,  unknown  to  the 
great  mass  of  the  people  of  Virginia,  endeavoring  to  secure  it  by  the  wales  of  the  poli- 
ticians and  by  the  influences  that  may  be  brought  to  bear  upon  a  convention  by  com- 
binations with  the  conflicting  interests  thai  arise  in  every  political  convention.  All 
kinds  of  possibilities  will  grow  out  of  such  combinations  and  such  clash  of  interests; 
and  sir,  you  can  tell  as  well  what  will  be  brewed  out  of  the  witches'  cauldron  as  what 
may  come  out  of  any  such  contest. 

I  have  looked  forward  to  some  such  provision  as  this  to  but  allay  that  prejudice 
that  we  all  acknowledge  to  exist  n  the  people  aganst  corporations,  a  prejudice  which 
may  be  very  often  well  grounded.  I  believe  that  whenever  justice  is  done  between  man 
and  man,  between  the  people  and  the  corporations,  that  prejudice  will  at  once  be  allayed 
and  will  cease  forever.  I  think  it  is  one  of  the  outrages  of  this  day  that  undue  and 
improper  damages  are  often  given  against  corporations.  They  are  given  because  the 
people  have  in  their  hearts  the  secret  belief  that  the  corporations  often  oppress  and  do 
IGl— Const.  Deb. 


2554  DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OF  VIRGINIA. 

wrong  to  the  people,  and  when  they  have  an  opportunity  in  the  jury-box,  they  visit  that 
oppression  upon  them.  Let  them  but  feel  we  are  doing  equal  and  perfect  justice  to 
them,  and  you  will  find  that  great  wrong  done  away  with. 

But,  sir,  if  it  becomes  a  political  question  between  God  knows  how  many  candidates 
going  from  section  to  section,  and  the  people  perhaps  imagining  they  have  a  special 
grievance  which  has  not  been  corrected  by  the  corporation  commission,  hurling  epithets 
and  denunciation  and  falsehood  against  the  discharge  of  the  duty  by  the  man  who  has 
been  in  power,  what  may  we  expect  to  come  out  of  any  contest  as  that? 

I  tell  you,  gentlemen,  you  have  a  most  important  matter  before  you  now.  A  mis- 
take in  this  instance  will  bring  discredit  upon  this  v/hole  feature  in  the  eyes  of  the 
people,  and  in  my  opinion  you  cannot  do  a  greater  work  than  to  stand  by  the  action  of 
the  committee  in  this  regard.    I  trust  gentlemen,  you  will  do  so. 

Mr.  Withers:  Mr.  Chairman,  it  is  said  that  when  Thomas  C.  Piatt  founl  it  impossi- 
ble to  control  without  question  and  without  complete  success  the  Legislature  of  New 
York,  he  adopted  the  method  of  boards  and  commissions  appointed  by  the  Governor, 
and  the  success  of  that  policy  has  been  seen  in  his  absolute  control  over  the  State  since 
that  time. 

On  the  floor  of  the  Alabama  Constitutional  Convention  last  summer  it  was  admitted 
by  one  of  the  most  distinguished  gentlemen  in  that  Convention  according  to  the  steno- 
graphic report,  in  the  Montgomery  Advertiser,  that  the  Alabama  Railroad  Commission 
was  utterly  ineffective,  and  that  one  of  the  reasons  of  its  ineffectiveness  and  ineffi- 
ciency was  the  fact  that  it  was  an  appointive  office  by  the  Governor,  and  not  elective  by 
the  people. 

I  am  grieved  to  see  my  friend  from  Culpeper  (Mr.  Barbour)  and  my  friend  from 
Richmond  (Mr.  Meredith)  part  from  us  on  this  question.  I  heard  their  speeches  main- 
taining the  right  of  the  people  to  elect  the  judges,  and  every  man  who  heard  the 
speeches  of  those  gentlemen  can  answer  their  speeches  of  to-day  with  those  of  the  past. 
They  cannot  justify  the  position  that  the  people  should  have  the  right  of  selecting 
judges  of  law  and  of  equity  and  should  not  have  the  right  of  selecting  the  intermediate 
court,  those  who  are  to  compose  the  tribunal,  the  arbitrament,  the  arbitration  com- 
mittee, as  it  were,  between  the  people  and  the  corporations. 

Now  let  us  see  what  this  thing  does.  Let  us  see  just  two  or  three  things  about  it: 
and  I  want  the  committee  to  understand  it  so  that  they  may  vote  intelligently  upon  it. 
It  may  have  slipped  their  attention.  First,  it  is  a  commission  of  great  powers,  and  it 
ought  to  be.  It  is  a  commission  of  comparatively  untried  powers,  in  Virginia  alone,  for 
there  are  nineteen  commissions  with  power  in  the  country,  sixteen  of  which  are  elective 
and  not  appointive;  and  they  are  satisfactory.  It  is  nothing  to  cause  dreams  nor  the 
seeing  of  visions.  All  the  horrors  pictured  here  are  but  the  horrors  of  the  opponents 
of  tJiis  bill. 

Now  let  us  see.  It  pays  these  men,  as  provided,  $3,000  a  year  and  makes  them 
practically  a  court  on  corporations.  What  are  the  provisions  of  the  bill?  That  the 
first  four  appointments  shall  be  made  by  one  man;  not  merely  the  first  three,  but  at  the 
expiration  of  the  sBbrt  term  his  successor  shall  be  appointed.  I  say  to  the  gentleman 
from  Northampton  (Mr.  Kendall),  of  whose  ability  and  judgment  I  have  the  highest 
opinion,  that  every  evil  he  has  pictured  in  a  nominating  convention  that  may  hang 
around  a  railroad  commissioner  hangs  around  a  Governor,  and  gives  that  Governor  the 
opportunity  for  trade  and  traffic  in  politics,  unapproached  and  unexcelled  in  the  history 
of  this  or  any  other  State. 

The  gentleman  from  Richmond  (Mr.  Meredith)  talks  about  what  may  be  the 
capacities  and  incapacities  of  a  candidate  before  the  people  for  election  to  this  office. 
I  say  to  him  that  by  a  trade  one  year  in  advance — because  by  the  provisions  of  this 
bill  the  appointments  follow  closely  upon  the  election  of  the  Governor — the  Governor, 
by  a  compact  with  politicians  or  corporations,  may  select  an  utterly  incompetent,  cor- 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2555 


rupt  and  inefficient  man,  whose  character  and  capacity  may  be  unknown  until  his  name 
is  sent  to  the  General  Assembly  for  confirmation;  and  no  protest,  no  power,  can  stop  its 
<3onfirmation  when  the  deal  is  consummated. 

Mr.  Meredith:  Is  it  not  true  thai  if  you  give  the  power  of  appointment  to  the  Gov- 
ernor in  matters  of  this  kind,  the  people  will  feel  the  importance  of  the  office  of  Governor 
more  than  they  do  novr,  and  that  they  will  see  that  the  man  who  is  put  in  that  place  will 
be  one  who  will  represent  them  fairly.  Is  it  not  more  probable  that  they  will  take  more 
interest  in  it? 

Mr.  Withers:  They  will  not  take  half  the  interest  in  selecting  somebody  to  appoint 
somebody  else  that  they  will  take  in  making  the  appointment  themselves.  The  people 
of  Virginia  are  not  altogether  stupid.  You  are  here  to  purify  the  electorate.  They  will 
know  the  importance  of  this  corporation  commission  as  well  as  we  do.  They  will  know 
it  better  than  the  Governor.  There  is  no  justification  for  creating  a  court  of  this  sort 
with  the  power  conferred  upon  it  and  then  saying  to  the  people  "You  shall  not  elect  the 
men  who  compose  it."  It  is  putting  into  the  hands  of  the  Governor  a  power  that  will 
come  back  to  plague  us.  I  am  not  talking  of  the  present  Governor.  I  apply  it  to  any 
Governor  from  the  first  down  to  the  last  man  that  shall  preside.  It  is  a  power  he  has  no 
business  to  have.  It  affords  the  broadest  possible  chance  for  bargains,  corruption  and 
everything  else  that  is  objectionable  in  politics  and  that  you  gentlemen  have  urged 
against  the  nominating  convention,  where  the  people  make  their  own  selections. 

How  much  more  potent,  how  much  more  insidious,  how  much  more  dangerous  and 
powerful  will  be  every  practice  known  to  politics  to  secure  deals  whereby  a  man  may  be 
nominated  for  Governor,  with  the  understanding  in  advance  that  he  shall  make  certain 
appointments  to  the  corporation  and  other  commissions.  How  much  more  infinitely 
powerful  will  those  corrupt  influences  be  when  they  can  be  accomplished  under  the 
cover  of  the  night  and  in  the  dark,  withotit  knowledge  by  the  public  that  such  a  deal  has 
been  made.  And  then  the  appointment  is  made  as  soon  as  the  Governor  is  inducted  in 
the  chair. 

'Mr.  Brown:  Would  not  your  objection  along  this  line  be  met  by  the  amendment 
ottered  by  the  gentleman  from  Rockingham  (Mr.  Keezell)  ? 

IMr.  Withers:  I  will  ask  the  gentleman  this  question,  and  I  ask  it  without  any  rela- 
tion whatsoever  to  the  personal  equation.  Why  confer  upon  one  Governor  the  power 
you  do  not  give  to  any  other?  The  very  fact  that  you  gentlemen  are  willing  to  give  the 
possibility  of  election  by  the  people  hereafter  is  an  admission  of  our  case.  You  may  say 
yoti  want  to  be  conservative.  I  tell  you  the  people  of  Virginia  are  more  conservative 
than  any  Governor  A  irginia  ever  had. 

I  do  not  believe  these  things  will  ever  happen,  even  if  the  Governor  appoints,  but 
the  possibilities  of  their  happening  in  case  of  appointment  by  the  Governor  are  infinitely 
greater  than  they  are  with  the  election  by  the  people.  The  people  of  this  State  are  not 
idiots  and  they  are  not  corrupt.  With  a  purified  electorate,  you  run  practically  no 
danger:  and  if  they  can  give  you  a  good  Governor,  as  they  have  given  you  in  the  past 
and  the  present,  and  a  good  Attorney-General,  in  the  name  of  God,  can  they  not  give  a 
good  Corporation  Commissioner? 

The  whole  answer  is  in  that.  If  the  power  that  is  to  do  the  appointing  is  elected  by 
the  people  and  proves  satisfactory,  then  the  men  to  be  appointed  should  likewise  be 
elected  by  the  people,  and  they  will  likewise  prove  satisfactory. 

I  have  heard  a  great  deal  of  talk  about  conservatism.  I  am  reasonably  conserva- 
tive, but  I  do  not  believe  in  that  conservatism  which  is  a  species  of  dry  rot,  never 
progressing.  The  efficient  commissions  of  this  country,  except  three,  are  elected, 
and  there  is  no  undtie  radicalism  in  any  of  them.  I  think  that  when  we 
create  a  new  court,  with  new  powers  and  new  privileges,  the  people  of  the  State  of 
Virginia  ought  to  saj'  who  should  control  that  court,  preside  over  it  and  render  its 
decisions.  If  there  is -any  injustice  done  to  corporations,  the  Court  of  Appeals  stands  to 
rectify  it,  and  the  Court  of  Appeals  is  not  elected  by  the  people. 


2556  DEBATES  OF  THE  CONSTITUTIOi^AL  COXVENTIOX  OF  VIRGimA. 

I  want  to  say  one  more  thing.  I  do  not  believe  that  the  politics  of  our  State  ai-e 
in  any  such  condition  as  has  been  pictured.  I  do  not  believe  the  nominating  conven- 
tions of  our  State  are  dominated  by  any  such  influences  as  has  been  pictured.  If  that 
is  true,  then  good  has  come  out  of  evil,  because  we  have  had  good  State  officials.  I 
make  this  statement  here,  without  fear  of  contradiction  and  without  desire  to  reflect 
upon  anybody,  that  the  elective  officers  of  this  Commonwealth  are  more  satisfactory 
than  the  appointive  officers,  and  the  record  of  the  administration  of  every  State  officer 
and  every  other  office  to  which  the  people  have  elected  their  officials  shows  that  they 
have  been  more  competently  served  than  those  that  have  been  filled  by  appointment  by 
legislature  or  other  bodies. 

I  have  said,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  I  was  very  much 
surprised  and  grieved  at  the  departure  from  the  path  of  rectitude  and  righteousness 
of  my  friends  from  Culpeper  and  from  Richmond,  and  I  am  sorry  but  not  surprised  to 
observe  the  course  of  the  chairman  of  the  committee,  to  elect  the  Supreme  Court  judges 
by  the  people.  He  was  afraid  of  the  election  of  the  Superintendent  of  Public  Instruc- 
tion by  the  people.  He  was  afraid  of  the  election  of  the  Commission  of  Agriculture  by 
the  people,  and  he  was  afraid  to  let  the  citizens  of  his  own  town  decide  local  questions 
pertaining  to  their  own  court;  and  yet  my  distinguished  friend  stands  upon  this  floor 
representing  and  being  trusted  by  a  constituency  that  has  no  superior  in  this  State. 
(To  Mr.  Braxton).    Why  not  trust  the  people? 

Mr.  Wescott:  Mr.  Chairman,  and  gentlemen  of  the  committee.  I  wish  to  say  at 
the  outset,  that  I  have  stood  with  a  single  exception  in  the  deliberations  of  this  body 
in  the  vanguard  of  those  gentlemen  who  have  advocated  the  election  of  officers  generally, 
by  the  people.  Unlike  my  friend  from  Louisa,  (Mr.  Gordon)  I  was  an  advocate  of  the 
election  of  the  judges  of  the  Court  of  Appeals  by  the  people.  Attentively  as  I  have 
listened,  and  deliberately  as  I  have  reflected  upon  every  argument  that  has  been  urged 
by  any  gentleman  opposed  to  the  views  with  which  I  came  thoroughly  imbued  to  this 
body,  I  have  seen  and  see  now  no  reason  whatsoever  to  change  the  position  I  have 
taken. 

This  question  is  not  a  new  one  to  me,  as  presented  before  this  committee.  It  is  not 
the  first  time  that  I  have  been  called  upon,  with  those  actuated  by  a  common  purpose 
in  their  desire  to  enact  this  provision  into  law,  to  consider  this  question.  I  wish  to 
urge  upon  the  members  of  the  Committee  of  the  Whole  the  extent  to  which,  in  my  hum- 
ble judgment,  the  persuasiveness  of  the  report  of  this  committee  should  weigh  upon  ali 
members  of  the  Committee  of  the  Whole,  by  reason  of  the  practical  unanimity  with 
which  the  recommendation  of  the  majority  report  is  concurred  in  by  every  phase  of 
sentiment,  by  every  interest  represented,  by  every  possible  variety  of  conflicting  views 
embodied  in  the  personnel  of  this  Committee  on  Corporations.  I  think  that  if  you  will 
retrospect  the  President's  appointment  of  the  several  committees  of  this  body,  you  will 
find  that  upon  none  has  there  been  a  greater  diversity  of  interest,  a  greater  diversity 
of  sentiment  and  a  greater  diversity  of  callings,  than  is  manifest  in  the  selection  of 
this  particular  committee. 

Notwithstanding  the  fact  that  we  have  upon  that  committee  lawyers  who  are 
judges,  and  lawyers  who  are  not  judges,  lawyers  who  have  been  characterized  as  railroad 
lawyers,  and  lawyers  who  are  not  railroad  lawyers,  and  to  descend  to  a  somewhat 
invidious  distinction  that  has  been  heretofore  drawn,  lawyers  who  carry  an  inside 
pocket  well  filled  with  railroad  passes,  and  lawyers  who  do  not  carry  any  railroad 
passes  at  all,  judges  of  the  corporation  courts,  and  of  the  county  courts,  the  clergy  and 
the  laity,  farmers  and  merchants — and  perhaps  the  only  calling  which  is  not  represented 
ir>  the  personnel  of  this  committee  are  the  medical  doctors — yet,  Mr.  Chairman  and  gen- 
tlemen of  the  committee,  considering  the  strong  diversity  of  views,  and  opinions  that 
have  been  manifested  in  the  consideration  of  this  committee's  report  by  some  of  these 
gentlemen,  when  they  come  to  this  provision  there  is  a  startling  unanimity  among  the 
members  of  this  standing  committee  as  to  this  particular  provision  of  the  report;  the 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2557 


gentleman  from  ^Vytlie  CMr.  Blair)  being  the  sole  member  Tv-ho  does  not  concur  in  this 
provision.  They  have  had  this  vrhole  measure  under  consideration,  not  only  for  weeks 
but  for  months.    They  have  considered  it  in  its  very  phrase,  and  in  its  very  bearing. 

Mr.  Brooke:  You  are  right,  so  far  as  the  minority  report,  signed  by  the  minority 
of  the  committee  without  reservation,  is  concerned.  Only  the  gentleman  from  Fauquier 
and  myself  signed  the  minority  report  without  reservation.  The  minority  repori  pro- 
vides for  the  election  of  these  officers  just  as  the  majority  report  does.  The  gentleman 
from  Wythe  signed  the  minority  report  with  a  reservation. 

Mr.  Wescott:  I  am  glad  that  I  was  not  mistaken  in  that  proposition.  Now,  gentle- 
men, in  this  connection  there  is  another  consideration  which  I  wish  to  urge  upon  the 
members  of  the  Committee  of  the  Whole,  and  I  do  it  in  sober  earnest.  I  intend  no 
improper  reflection  upon  the  gentlemen  who  have  seen  fit  to  differ  so  widely  from  the 
views  which  I  have  entertained  upon  this  question;  but  I  wish  to  direct  your  attention 
to  the  fact,  which  I  believe  will  be  admitted  by  the  concensus  of  opinion  in  this  body, 
that  no  committee  which  has  been  assigned  any  portion  of  the  work  of  this  Convention 
has  so  well  demonstrated  by  its  report,  as  well  as  by  the  debates  vrhich  have  taken  place 
in  the  last  two  weeks  upon  this  floor,  the  thoroughness  and  extensiveness  of  their 
consideration.  This  majority  proposition  has  been  considered  in  its  every  phase,  in 
its  every  aspect;  and  it  is  in  the  light  of  that  reflection  and  of  the  practical  unanimity 
of  this  committee  on  this  proposition  that  I  would  urge  you  to  adopt  it. 

Let  me  say  to  you,  gentlemen,  that  when  this  question  was  being  discussed  in  the 
committee  room,  there  were  no  stenographers  there;  there  vrere  no  galleries  to  talk  to. 
The  gentlemen  who  were  interested  in  drafting  this  provision  upon  the  fundamental  law 
of  the  State  were  engaged  in  conference,  and  dispassionately,  earnestly,  thoughtfully 
and  deliberately  considered  every  proposition  which  has  been  urged  upon  the  floor  of 
this  committee.  There  was  no  appeal  to  popular  approval  when  these  gentlemen  were 
deliberating.  With  the  result  of  this  practical  unanimity,  there  was  no  opportunity 
to  call  to  the  attention  of  the  public  the  reasons  for  the  attitudes  of  any  of  them.  I 
say  to  you,  gentlemen,  that  fact  ought  to  be  very  strongly  persuasive  upon  the  minds 
of  the  members  of  this  Committee  of  the  Whole. 

On  motion  of  INIr.  Braxton  the  committee  rose  and  the  President  resumed  the  chair. 

The  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess. 

CORPORATIONS. 

On  motion  of  ^Iv.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Ayers  in  the  chair. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Danville  (Mr.  Withers). 

Mr.  Hatton:  Mr.  Chairman,  I  am  one  of  those  who  have  been  in  opposition  to  the 
putting  of  this  measure  into  the  Constitution,  but  when  it  became  apparent  to  me  that  a 
large  m.ajority  of  the  members  of  this  body  vrere  in  favor  of  putting  it  into  the  Constitu- 
tion. I  have  felt  it  my  patriotic  duty  to  do  everything  I  could  to  perfect  the  measure,  and 
I  have  taken  care  to  do  nothing  to  hamper  it  or  to  obstruct  others  who  were  seeking  to 
perfect  it.  Mr.  Chairman,  it  is  in  that  spirit  that  I  rise  to  oppose  the  amendment  of  the 
gentleman  from  Danville.  It  is  maintained  that  this  is  a  government  of  the  people,  and 
therefore  that  the  people  should  select  their  own  instruments  for  the  duties  imposed  by 
this  measure.  It  appears  to  me,  Mr.  Chairman,  that  this  amendment,  instead  of  adding 
to  the  powers  of  the  people  in  this  matter,  tends  to  deprive  them  of  some  of  the  powers 


2558  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

whi«h  the  measure  as  now  framed  gives  to  the  people.  TEis  amendment,  which  pro- 
vides for  the  election  of  these  commissioners  by  the  people,  has  a  negative  as  well  as  a 
positive  effect.  We  are  here  making  a  Constitution,  and  what  we  put  into  this  Constitu- 
tion as  a  provision  for  electing  commissioners  or  other  officers  is  necessarily  exclusive 
of  all  other  methods.  When  we  say  that  these  commissioners  shall  be  elected  by  the 
qualified  voters  of  this  Commonwealth,  that  method  is  exclusive,  and  if,  in  the  course  of 
events,  the  people  themselves  should  become  convinced  that  other  methods  of  selecting 
these  commissioners  are  better  then  they  find  that  we  have  tied  their  hands  and  pre- 
vented their  doing  any  such  thing. 

Now,  Mr.  Chairman,  I  say  that  by  this  amendment  we  would  be  taking  powers  away 
from  the  people  which  are  given  to  them  under  the  provisions  of  this  measure  as  it  now 
stands  and  as  framed  by  the  committee.  After  the  people  of  the  Commonwealth  test 
this  method  of  appointment  by  the  Governor,  subject  to  confirmation  by  the  General 
Assembly,  if  that  should  be  found  wanting,  then  I  say  they  have  the  opportunity  them- 
selves to  change  it  by  their  chosen  representatives  and  by  representatives  who  will  be 
chosen  with  full  knowledge  on  the  part  of  the  people  of  their  power  to  change  it.  In 
other  words,  the  people  will  be  able,  if  they  so  desire,  to  instruct  their  representatives  in 
the  General  Assembly  to  make  this  change.  Again,  Mr.  Chairman,  I  think  it  but  fair  to 
this  committee  to  allow  this  report  in  this  respect  to  stand  as  they  have  framed  it.  This 
committee  will  be  held  responsible  for  this  commission,  and  if  men  selected  for  it  are 
guilty  of  any  maladministration  of  it,  the  people  of  this  Commonwealth  will  be  more 
inclined  to  hold  this  committee  responsible  than  the  commissioners  tliemselves.  The 
duties  of  these  commissioners  are  so  technical  in  their  character  that,  I  respectfully 
submit,  the  people  of  this  Commonwealth  will  not  be  able  to  judge  specifically  as  to 
whether  they  have  administered  these  duties  properly  or  improperly  in  every  particular. 
They  will  only  note  the  general  fact  that  this  commission  is  a  failure  and  noting  that 
fact,  they  will  hold  this  committee  responsible  for  if.  I  think,  therefore,  it  is  but  fair  to 
this  committee  to  allow  this  appointment  to  stand  where  they  have  placed  it.  I  do  not 
believe  the  people  at  large  are  as  capable — and  if  the  use  of  the  word  capable  in  this 
connection  is  treason,  then  I  say  make  the  most  of  it — by  a  popular  vote,  of  selecting 
men  with  reference  to  the  performance  of  strictly  technical  duties  as  are  smaller  bodies 
of  men,  and  I  believe  that  the  capability  to  make  that  selection  properly  increases  in  the 
same  ratio  in  which  the  number  of  those  who  are  to  make  the  selection  decreases. 

These  commissioners  are  not  chosen  in  order  to  fulfill  some  great  political  duty,  as 
a  Governor  is.  Their  duties  are  those  of  an  extremely  technical  business — a  science 
and,  I  say,  Mr.  Chairman,  that  the  field  from  which  this  selection  is  to  be  made  is  an 
extremely  small  one.  The  number  of  men  in  this  Commonwealth  to-day  who  by  train- 
ing are  qualified  to  deal  with  the  subject  of  railroad  rates  in  a  scientific  manner  is  in- 
deed small,  and  the  men  who  are  capable  of  doing  it  will  be  the  very  men  who  will  not 
seek  nomination  for  the  position.  They  are  men  who  can  always  find  remunerative 
employment,  and  if  this  selection  is  left  with  your  Governor,  he  will  be  able  to  seek  out 
those  men,  and  if  necessary  to  communicate  with  them  to  find  out  in  advance  whether 
they  will  accept  the  position  or  decline  it.  I  say  that  is  something  that  no  nominating 
Convention  can  do. 

Mr.  Braxton:  Mr.  Chairman,  I  hope  that  this  committee  will  consider  most  care- 
fully and  maturely  this  matter,  before  they  reject  the  recommendation,  in  this  respect, 
of  the  Committee  on  Corporations.  It  is  needless  to  say  that  the  Committee  on  Corpora- 
tions has  at  heart,  as  earnestly  as  it  is  possible  for  anybody  to  have  the  success  of  this 
measure.  When  I  say  success,  Mr.  Chairman,  I  do  not  mean  the  mere  success  of  passing 
it  through  this  body,  but  I  mean  that  in  its  operations  hereafter,  it  shall  be  successful  in 
accomplishing  those  things  which  the  friends  of  the  measure  hope  for  It,  and  in  failing 
to  produce  those  shortcomings  the  opponents  of  the  measure  have  predicted  for  it.  In 
coming  to  the  conclusion  that  we  did  on  this  matter  we  did  not  act  hastily.    There  was 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2559 


probably  not  a  thing  connected  with  this  whole  question  of  a  corporation  commission 
that  met  with  more  earnest  and  careful  consideration  at  the  hands  of  the  committee  than 
this  question  which  we  have  now  before  us.  It  is  a  question  as  to  which  we  did  not  de- 
pend entirely  upon  our  own  judgment.  We  sought  the  advice  of  all  sorts  and  conditions 
of  people  who  are  interested  in  the  welfare  and  success  of  this  measure.  At  a  good  deal 
of  difficulty  and  at  some  expense  I  conferred  with  those  men  who  have  been  mose  promi- 
nent in  the  State  in  urging  and  advocating  this  measure — I  refer  to  the  representatives 
of  the  boards  of  trade  of  the  State.  Those  are  the  men  who  are  more  interested  in  this 
than  any  other  similar  number  of  men,  because  they  have  so  much  more  shipping  to  do. 
After  personal  conference  with  those  gentlemen  they  were  unanimously  of  the  opinion 
that  the  method  recommended  by  your  committee  on  Corporations  was  the  best  and  the 
wisest.  I  do  not  mean  to  say,  Mr.  Chairman,  that  because  fhe^'  think  that  is  so,  it 
necessarily  is  so.  We  do  not  wish  to  arrogate  to  ourselves  any  peculiar  wisdom.  We 
merely  say  to  this  body  that  this  was  not  a  thoughtless,  not  a  reckless  conclusion  to 
which  we  came,  but  that  we  arrived  at  this  result  in  the  method  I  have  told  you. 

Mr.  Chairman,  I  regret  that  in  debating  this  measure  some  of  the  gentlemen  who 
take  the  opposite  view  seem  inclined  to  throw  out  suggestions  and  intimations  of  a  more 
or  less,  personal  character,  as  to  the  motives  which  actuated  or  ideas  which  might  bias 
and  warp  the  judgment  of  those  who  favor  the  side  which  I  do  in  this  matter.  My  ex- 
cellent friend  from  Warren  county  (Mr.  O'Flaherty)  laid  a  good  deal  of  stress  upon  the 
question  whether  it  would  be  wise  to  exclude  the  possibility  of  any  member  of  this  Con- 
vention ever  serving  on  that  commission.  I  could  not  catch  the  pertinence  of  his  re- 
marks, unless  it  was  intended  as  an  intimation  or  suggestion  that  some  of  the  advocates 
of  this  provision,  and  particularly  some  of  the  committee  who  reported  it,  had  in  their 
hearts  or  in  their  minds  the  possibility  of  being  candidates  for  this  office,  and  thought 
they  could  get  it  better  in  this  way  than  they  could  if  the  commissioners  were  to  be 
elected  by  the  people.  I  have  no  authority  to  speak  on  this  subject  for  anybody  but  my- 
self but  I  would  like  to  say,  if  the  committee  will  excuse  me  for  making  a  personal 
reference  in  a  matter  of  this  importance,  that  not  only  do  I  not  desire  to  hold  any  office 
under  the  sun,  but  having  taken  the  part  I  have  in  the  establishment  of  this  office,  there 
is  not  money  enough  in  the  Stale  of  Virginia  to  make  me  accept  it.  I  would  rather  see 
the  office  abolished  than  to  discredit  myself  by  undertaking  to  fill  it,  after  having  un- 
dertaken to  establish  it,  whether  if  is  an  office  that  is  to  be  filled  by  election  by  the 
Legislature,  by  election  by  the  people  or  by  appointment.    (Great  applause.) 

So  far  as  any  such  idea  as  that  is  concerned,  I  wish  to  satisfy  my  friend  that  I  for 
one,  have  no  such  idea;  and  I  think,  if  I  know  the  men  who  served  with  me  on  that 
committee,  they  occupy  the  same  position  and  cannot  possibly  have  any  personal  interest 
in  this  matter. 

Mr.  O'Flaherty:  I  do  not  wish  to  be  put  in  a  false  position  before  this  committee. 
There  is  no  man  for  whom  I  have  more  respect  than  the  distinguished  gentleman  who 
is  the  chairman  of  this  committee.  I  simply  stated,  in  speaking  of  the  Constitutional 
provision  of  Louisiana,  that  they  had  made  such  a  provision.  It  was  not  necessary  for 
the  gentleman  to  make  a  disclaimer  so  far  as  I  am  concerned;  but  since  he  has  done 
so  I  wish  to  say  that  nobody  under  the  sun  would  believe  it  more  implicitly  than  myself. 

Mr.  Braxton:  I  thank  the  gentleman  very  much  for  what  he  has  said.  I  think, 
Mr.  Chairman,  that  this  is  a  matter  upon  which,  so  far  as  I  know,  every  member  of 
this  Convention,  either  on  my  side  or  on  the  other  side,  is  prepared  to  act  and  will  act 
without  any  ultra  ideas  or  designs.  As  to  the  appointment  or  election  of  these  gentle- 
men to  fill  this  office  I  do  not  take  a  one-sided  view.  I  recognize  the  fact  that  the 
appointment  by  the  the  Governor,  in  the  method  which  we  suggest,  is  not  free  from 
criticism.  All  I  say  is  that  any  possible  way  of  filling  this  office,  whether  by  election 
by  the  Legislature,  by  election  by  the  people  or  by  appointment  by  the  Governor  is  open 
to  objection  in  some  respects.  There  is  not  one  of  them  that  has  not  some  bad  features 
to  it.    In  some  States  election  by  the  people  has  been  successful.    In  other  States 


2560  DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTIOi^  OF  VIPtGINIA. 

appointment  by  the  Governor  has  been  entirely  successful.  I  was  told  not  long  since 
by  one  of  the  distinguished  members  of  the  Interestate  Commerce  Commission  that, 
in  his  opinion,  the  Georgia  commission  was  one  of  the  most  effectual  and  satisfactory 
commissions  in  the  United  States.  That  commission  has  always  been  appointed  by 
the  Governor  and  confirmed  by  the  Legislature.  I  do  not  mean  to  say  that  because 
such  is  the  fact  that  is  the  only  possible  way  of  doing  it;  but  I  mention  that  as  an 
instance  where  this  method  of  filling  the  office  has  proven  eminently  satisfactory  to  the 
people. 

Again,  in  California,  the  provision  is  made  in  the  Constitution  of  the  State  that 
they  shall  be  elected  by  the  people.  I  am  informed  that  that  commission^  is  eminently 
satisfactory  in  every  respect.  I  am  free,  however,  to  admit  that  there  are  other  com- 
missions elected  by  the  people  which  are  satisfactory.  I  am  free  to  say,  Mr.  Chairman, 
that  even  if  this  commission  is  elected  by  the  people  in  the  way  proposed  by  the  gentle- 
man from  Danville,  I  believe  it  will  be  infinitely  better  than  no  commission  at  all.  But 
it  is  my  most  earnest  conviction  that  the  efficiency  of  this  commission  will  be  most 
seriously  impaired  if  we  start  out  with  election  by  the  people.  I  am  strongly  inclined 
to  think  that  it  would  be  better  always  to  retain  the  method  of  appointment  by  the  Gov- 
ernor; but  it  was  the  purpose  of  the  committee  to  put  us  in  such  an  attitude  that  we 
could  avail  ourselves  of  both  methods.  If  you  will  think  for  a  moment  you  will  see 
that,  when  this  commission  starts  off,  it  will  be  some  time  before  there  is  a  general 
election,  and  if  you  cannot  fill  the  office  until  then  you  have  got  ail  that  time  to  wait 
without  any  commission. 

In  the  next  place,  one  of  the  commissioners  is  appointed  to  hold  office  for  only  two 
years.  I  ask  you,  as  practical  men,  if  you  think  there  is  any  man  in  the  State  of  Virginia 
who  is  capable  of  filling  this  office  in  a  satisfactory  manner,  who  would  go  to  work  and 
make  a  canvass  of  this  entire  State  in  a  political  campaign  to  get  that  officer  for  the  term 
of  two  years.  I  do  not  believe  you  could  get  a  man  to  do  it.  The  result  would  be  that 
you  would  be  forced  to  take  up  some  political  hack,  who  had  all  to  gain  and  nothing  to 
lose,  who  was  totallyand  grossly  unfit  for  the  position,  and  who,  because  of  that  very 
worthlessness  and  because  of  desperate  fortune  was  willing  to  canvass  the  State  or  do 
anything  else  to  get  an  office  for  a  year,  or  for  six  months,  if  necessary.  There  are 
always  men  who  will  fill  an  office,  but  they  are  not  men  who  are  desirable.  They  are 
men  who  would  take  the  presidency  of  the  United  States  for  a  night's  lodging,  but  it 
would  be  a  calamity  to  have  them  do  so.  There  are  plenty  of  men  who  would  like  to 
have  this  office;  but  they  are  not  the  men  the  people  would  like  to  have  in  the  office. 

It  has  been  the  practice,  as  I  am  informed,  in  most  of  the  States,  to  install  an  insti- 
tution of  this  kind  by  appointment  because  of  the  practical  difficulty  of  leading  off  by  the 
cumbersome  method  of  a  general  election.  I  think  those  gentlemen  who  favor  election 
by  the  people  will  agree  with  me  that,  as  a  practical  thing,  the  first  officers  should  be 
installed  by  the  method  of  appointment.  Your  committee  has  recommended  that  this 
commission  be  appointed  by  the  Governor  and  confirmed  by  the  Legislature.  But  we 
say  that  after  their  terms  have  expired  after  we  have  had  a  reasonable  time  for  experi- 
ment with  that  method  of  filling  the  office,  to  see  whether  it  is  successful  or  not,  we  may 
adhere  to  that  methodor  change  that  method  if  we  choose,  so  that  we  have  a  double 
advantage.  We  have  an  opportunity  to  experiment  with  these  two  methods  of  filling  the 
offices,  so  as  to  determine  whether  or  not,  under  the  conditions  which  exist  in  Virginia 
to-day,  that  method  of  appointment  is  the  best  or  the  method  of  election  by  the  people  is 
the  best.  Now,  gentlemen,  I  do  not  wish  to  talk  claptrap.  I  want  to  talk  to  you  like  plain 
business  men.  You  know,  and  I  know  that  when  once  you  give  to  the  people  the  power 
to  elect  officers,  it  does  not  make  any  difference  how  much  you  regret  it,  you  can  never 
get  it  back.  The  history  of  the  world  has  shown  that  when  power  of  that  kind  is  put 
into  the  hands  of  the  people,  though  they  may  be  rushing  to  their  own  destruction,  they 
never  surrender  it  except  to  a  king  or  a  dictator.    If  you  want  an  opportunity  to  test  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2561 


two  methods,  you  must  not  begin  by  giving  to  the  people  the  power  to  elect,  because  you 
can  never  take  it  from  them.  We  start  out,  then,  with  the  method  of  appointment,  and 
we  provide  that  if  that  method  proves  unsatisfactory  you  can  have  an  election  by  the 
people.  Then  you  would  be  acting  in  view  of  past  events.  Then  you  would  be  acting 
with  the  light  of  experience  before  yoti — not  acting  upon  a  theory,  but  having  before  you 
the  actual  practice  of  a  year  or  two  past.  We  did  not  think  there  would  be  any  great 
difficulty  in  reverting  to  election  by  the  people  if  it  was  decided  to  have  it.  The  Legisla- 
ture, it  is  true,  being  men  like  all  the  rest  of  us,  would  be  loath  to  surrender  to  the 
people  a  right  which  they  themselves  had,  but  they  would  not  be  loathe  to  take  away 
a  right  which  the  Governor  had  and  give  to  the  people,  if  there  was  any  demand 
for  it  on  the  part  of  the  people.  Therefore  you  would  not  have  the  same  difficulty  in  re- 
verting from  appointments  by  the  Governor  to  election  by  the  people,  that  you  would  have 
in  reverting  from  election  by  the  Legislature  to  election  by  the  people.  If  there  is  any 
demand  for  election  by  the  people,  after  we  have  experimented  with  the  method  of 
appointment,  there  will  be  no  diffi^ctilty  in  putting  it  in  force. 

Gentlemen  talk  about  the  people,  their  right  of  self-government,  and  their  power  to 
govern  themselves.    If  the  people  are  powerless  to  elect  a  Legislature  to  carry  out  their 
will,  how  can  they  be  expected  to  elect  commissioners  to  carry  out  their  will?  Election 
by  the  people,  within  proper  limits  and  bounds,  is  the  very  groundwork  and  basis  of  our 
government;  but  like  every  other  good  thing  it  can  be  run  into  the  ground.    It  is  all  very 
well  to  get  up  here  and  talk  about  the  dear  people,  and  how  much  we  love  them,  and  to 
imagine  that  they  possess  something  absolutely  transcendental  and  infinitely  beyond  all 
men.  that  they  know  everything,  that  they  have  all  the  virtues  and,  as  Sidney  Smith  says, 
"not  a  single  redeeming  vice.'"    But  we  all  know  that,  not  because  of  stupidity  and  not 
because  of  corruption,  but  because  of  the  necessary  result  from  the  physical  condition  of 
there  being  immense  numbers  of  them  it  is  difficult  for  them  to  act.    A  million  men  can- 
not meet  and  confer  together.    The  only  way  to  get  them  to  act  effi-ciently  is  to  reduce 
in  simplicity,  increase  in  importance  so  that  you  can  concentrate  their  thoughts  upon 
one  point.    Then,  and  then  only  is  election  by  the  people  a  safeguard  for  them- 
selves and  for  the  country.    But  if  you  divert  their  attention  with  a  multitude  of 
officers  and  elections,  the  more  difficult  you  make  it  for  them  to  express  their  opinion. 
The  more  you  expose  them  to  the  arts  and  wiles  of  the  practical  politician  the  greater 
opportunity  you  give  to  divert  the  attention  of  the  ptiblic  from  that  one  object.    If  you 
elect  them  when  the  Governor  is  elected  everybody  will  be  thinking  about  the  Governor 
and  nobody  thinks  about  these  side  issues.    The  politicians  will  do  as  they  choose  and 
when  the  people  wake  up  they  will  find  they  have  been  made  fools  of  and  that,  under  the 
guise  of  popular  election,  their  will  has  been  defeated.    Our  idea  is  that  there  would  be 
less  danger  of  manipulation  in  this  matter  when  the  entire  responsibility  of  it  is  put 
upon  the  Governor  to  nominate  them  and  upon  the  Legislature  to  elect  them.  Popular 
attention  is  riveted  upon  the  Governor.    Thank  God  the  day  has  not  come  when  the 
Governor  of  Virginia  can  be  bought  or  traded.    But  if  you  are  going  to  call  upon  the  peo- 
ple to  elect  Tom,  Dick  and  Harry  to  this  office  and  that  office — offices  which  the  people 
do  not  care  anything  about  and  in  which  they  are  not  particularly  interested,  you  are 
making  an  absolute  bid  for  deals  of  all  sorts  and  descriptions. 

As  I  attempted  to  explain  the  other  day.  while  the  people  have  the  power  to  elect 
they  are.  absolutely,  by  reason  of  their  great  ntimbers,  precluded  from  the  possibility  of 
selecting.  They  are  bound  to  make  their  choice  between  the  candidates  that  the  parties 
put  up  for  them.  Can  you  not  trust  the  Governor  of  Virginia,  gentlemen,  to  put  up  better 
men  for  your  consideration — better  than  the  ordinary  political  convention  which  is 
evanescent  in  its  character  and  utterly  irresponsible  to  anybody,  and  is  composed  of 
delegates  elected  by  perhaps  one-tenth  of  the  people,  absolutely  dominated,  as  it  often 
is,  by  political  bosses.  The  opportunity  there  for  chicanery  and  for  defeating  the  will  of 
the  people  is  unfortunately,  greater  than  it  is  under  the  pro%ision  as  we  have  it  here. 


2562  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Admit,  if  you  choose,  that  the  method  of  filling  these  offices  by  election  by  fhe  people 
is  the  best  method,  then  I  think  you  must  concede  that  in  starting  off,  in  order  to  set  the 
pace,  to  use  a  common  expression,  in  order  to  indicate  the  kind  of  men  it  is  necessary  to 
have,  in  order  to  look  over  the  State  and  give  the  State  the  advantage  of  picking  out  the 
best  men  we  should  start  off  by  appointment.  Having  started  off  by  the  method  of 
appointment,  at  the  end  of  a  reasonable  time  say  to  the  people,  you  have  experimented 
with  this  method  and  if  you  find  it  is  not  successful  you  have  the  right  to  change  it,  and 
if  you  find  that  it  is  successful  you  have  the  right  to  keep  it.  Do  not  say  to  them:  You. 
have  tried  it  and  found  it  successful,  but  you  shall  be  compelled  to  abandon  an  estab- 
lished and  proven  thing  and  take  something  that  has  not  been  tried.  Leave  it  to  the 
people,  as  represented  by  the  Legislature,  after  this  experiment  has  been  tried,  to  say 
whether  they  will  continue  it  or  whether  they  will  change  it. 

One  word  more  and  I  am  through.  It  is  always  well  to  retain  an  arrow  in  your 
quiver  and  not  to  jump  your  whole  length  at  once.  If  you  choose  to  concede  that  the  rail- 
roads do  not  want  election  by  the  people,  if  you  choose  to  concede  that  the  commissioners 
themselves  do  not  want  to  be  elected  by  the  people,  will  you  not  be  able  to  keep  them  in 
the  path  of  their  duty,  will  you  not  be  able  to  discourage  any  attempt  on  the  part  of  the 
railroad  to  corrupt  them,  as  has  been  intimated  will  be  done,  when  you  hold  this  over  their 
head  in  terrorem  when  you  say  to  them:  This  is  a  good  commission.  If  you  let  it  alone 
and  let  it  perform  its  duty  it  can  go  on,  but  if  you  tamper  with  it,  if  you  corrupt  it,  if 
you  befool  it,  if  you  make  it  a  disappointment  to  the  people,  then  we  wiTl  resort  to 
election  by  the  people.  That  is  something  you  can  hold  over  them  to  keep  them  in 
check.  The  Governor,  in  making  the  appointments  will  be  careful  not  to  abuse  his  power 
of  appointment.  If  he  wants  to  be  a  candidate  to  the  Senate  he  will  not  try  to  commend 
himself  to  the  people  by  appointing  corrupt  men  to  office.  You  talk  about  the  candidacy 
of  the  Governor  for  the  Senate.  The  Senatorship  of  the  United  States  is  an  exalted 
office.  It  is  one  of  great  honor;  but  J  ask  you,  gentlemen,  what  practical  good  is  it  to  the 
people  of  Virginia  as  compared  with  a  corporation  commission"?  Here  is  a  thing  v/hich 
comes  home  to  every  man  in  the  State,  which  is  dollars  and  cents  in  his  pocket,  and  is 
he  going  to  risk  impairing  the  efficiencj  of  this  commission  in  order  to  settle  some  matter 
between  two  politicians,  as  to  who  shall  go  through  the  form  of  representing  this  State 
ia  the  Senate?  If  I  knew  this  provision  was  going  to  compel  us  to  elect  the  Governor  to 
the  United  States  Senate,  if  I  thought  it  was  necessary  for  the  efficient  Constitution  of 
this  body,  I  would  say:  Take  the  United  States  Senator  and  go  to  thunder  with  him,  if 
you  will  give  us  a  good,  efficient  commission.  But  I  do  not  believe,  gentlemen,  that  it 
will  have  that  effect.  The  Governor,  as  I  say,  will  have  an  additional  motive  to  make 
good  appointments  instead  of  making  bad  appointments.  If  he  makes  notoriously  bad 
appointments  there  is  the  Legislature  to  head  him  off,  and  through  the  Legislature  the 
people  can  speak.    The  whole  matter  is  entirely  in  the  control  of  the  people. 

I  trust,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  it  may  be  the  pleasure 
of  this  committee  to  sustain  the  Committee  on  Corporations  in  this  m.atter  which  they 
liave  so  much  at  heart,  which  they  have  studied  over  with  so  much  care,  which  they  have 
looked  into  with  so  much  patience,  and  about  which  they  have  conferred  with  so  many 
friends  of  the  measure.  I  believe  that  almost  all  the  prominent  friends  of  the  measure 
throughout  the  State  favor  the  report  of  the  committee  in  this  respect.  As  chairman  of 
the  committee,  and  simply  because  I  happened  to  be  chairman,  I  have  received 
numerous  letters;  I  suppose  I  have  received  from  six  to  a  dozen  letters  a 
day  for  the  last  thirty  days  from  all  sorts  and  conditions  of  men  in  this  State,  from  mer- 
chants, from  manufacturers,  from  farmers,  from  business  men  and  men  of  all  sorts,  com- 
mending this  institution  in  the  way  we  have  provided  for  it,  and  not  one  of  them,  so  far 
as  I  can  recall,  has  ever  objected  to  the  method  of  appointment.  They  all  recognize  that 
it  is  conservative  and  reliable.  And,  sir,  they  recognize  that  if  you  want  efficient  service, 
you  want  to  be  put  in  a  position  so  that  you  can  select  your  servants,  and  not  be  in  such 


DEBATES  OE  THE  COXSTITETIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2563 


a  posiiion  that  you  have  to  sii  still  and  choose  between  those  vrho  come  and  offer  their 
services  to  you.  The  best  men  are  those  you  have  to  approach.  It  is  impossible  for  the 
office  to  seek  the  man,  if  you  have  a  general  election.  The  only  way  for  the  office  to  seek 
the  man  is  to  give  the  power  of  appointment  to  some  one  man  vrho  represents  the  people, 
who  has  been  elected  to  perform  that  duty,  who  is  directly  responsible  to  the  people,  and 
who  is  a  man  so  well  known  that  he  has  succeeded  in  obtaining  the  suffrage  of  the  people 
to  elect  him.  He  can  act.  Through  him  the  office  can  seek  the  man  and  seek  the  best 
man  to  perform  the  duty.  I  think  I  should  almost  feel  like  weeping  if  I  should  see  that 
this  commission,  which  we  have  labored  so  hard  to  establish,  filled  up  with  a  lot  of 
political  hacks.  It  is  not  a  political  office.  T\'e  do  not  want  politicians  in  it.  It  is, 
strictly  speaking,  a  business  office,  and  ought  to  be  filled  by  business  men,  whose  lives 
have  laid  in  that  line  heretofore,  and  who  have  not  been  politicians.  It  would  be  hope- 
less for  them  in  seek  public  election  throughout  the  State.  A  man  must  be  something 
of  a  speaker  to  succeed  in  popular  elections,  although  he  may  not  be  able  to  do  any- 
thing but  talk.  The  men  that  are  fitted  for  this  kind  of  work  are  frequently  men  who 
cannot  talk,  but  men  who  can  act. 

I  hope,  gentlemen,  that  the  committees  will  be  sustained  on  this  proposition,  as  you 
have  sustained  them  on  other  points. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Danville  Olv.  Withers,). 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes  27,  noes  37. 
(Applause) . 

Mr.  OTlaherty:  I  move  to  amend  Section  3,  line  3,  page  3,  by  striking  out  the 
words,  '"'be  appointed  by  the  Governor,  subject  to  confirmation,"  and  insert  "elected."  so 
that  the  sentence  will  then  read;  "The  said  commission  shall  be  elected  by  the  General 
Assembly  in  joint  session  and  their  regular  terms  of  office  shall  be  six  years,"  etc. 

Mr.  Keezell:    Mr.  Chairman,  what  has  become  of  the  amendment  I  offered? 

The  Chairman:  The  Chair  was  not  aware  the  amendment  was  pending.  It  will  be 
considered  now. 

Mr.  R.  L.  Gordon:  Mr.  Chairman,  I  merely  wanted  to  ask  that  the  amendment 
offered  by  myself  be  changed  so  that  the  election  by  the  people  will  take  place  after 
January  1st,  1905.  The  effect  of  that  amendment  will  be  to  have  the  first  commissioner 
selected  by  the  Governor,  and  after  the  selection  of  the  first  commissioner  it  is  absolutely 
provided  that  they  shall  be  elected  by  the  qualified  voters  of  the  State. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Louisa  (Mr,  Gordon). 

The  amendment  was  rejected;  there  being  on  a  division,  ayes  29,  noes  33. 
(Applause.) 

Mr.  OTlaherty:  Mr.  Chairman,  I  do  not  wish  to  make  any  further  remarks  in  re- 
gard to  the  amendment  I  have  offered,  more  than  to  say  that  I  hope  the  gentlemen  who 
have  A'oted  to  elect  the  judges  of  the  Supreme  Court  of  Appeals  of  Virginia,  and  the 
circuit  judges  will  now  show  their  faith  by  their  works  again.  I  cannot  see  why  men 
who  voted  to  elect  the  judges  of  the  Court  of  Appeals,  when  it  is  provided  that  the  mem- 
bers of  this  commission  at  least  one  of  them,  shall  have  the  same  qualifications  as  the 
judges  of  the  Court  of  Appeals,  should  not  now  vote  for  the  election  of  the  members  of 
this  commission  by  the  Legislature. 

I  want  to  get  it  as  near  the  people  as  possible;  but  if  it  has  come  to  pass  that  we 
cannot  trust  the  Legislature  of  Virginia  or  the  people,  then  let  us  put  ourselves  on  record. 
I  wish  to  call  the  attention  of  the  committee  to  the  fact  that  the  tentative  reports 
that  were  sent  out  by  the  committee  provided  for  the  election  of  this  committee  by  the 
people,  as  those  reports  were  published  in  the  newspapers  of  the  city  of  Richmond.  The 
argument  has  been  made  upon  the  floor  of  this  committee  this  afternoon  that  this  com- 
mittee comes  here  with  a  solid  front.    I  want  to  know  how  these  gentlemen  got  con- 


2564  DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


verted.  On  the  way  down  to  Damascus  they  must  have  seen  some  light  which  they  had 
not  seen  when  they  sent  out  those  tentative  reports. 

I  hope  gentlemen  will  vote  for  the  election  of  this  commission  by  the  Legislative 
Department  of  the  State,  and  thereby  recognize  it  as  one  of  the  co-ordinate  branches  of 
the  government  of  Virginia.  I  shall  not  make  any  further  remarks,  because  I  know  it 
is  useless  to  debate  this  question.  I  would  be  recreant,  however,  to  the  duty  which  I 
feel  I  owe  to  my  constituents,  and  to  the  people  of  Virginia,  if  I  did  not  state  my  views. 

The  chairman  of  the  committee  said  the  other  day  something  which,  with  all  due 
respect  to  him,  I  would  not  ever,  I  hope,  be  found  guilty  of  saying,  that  power  once 
lodged  in  the  hands  of  the  people  could  never  be  wrested  from  them.  I  thank  God  for 
that;  but  these  gentlemen  are  not  willing  to  put  it  in  the  hands  of  the  people — 

Mr.  Braxton:  I  did  not  say  that,  Mr.  Chairman.  The  gentleman  misunderstood  me. 
Mr.  O'Flaherty:  I  so  understand  you,  and  I  think  the  record  will  bear  me  out. 
Mr.  Braxton:  I  know  the  gentleman  does  not  intentionally  misstate  what  I  said, 
but  he  misunderstood  me,  and  I  wish  to  correct  him.  I  did  not  say  that  power  once 
placed  in  the  hands  of  the  people  could  not  be  wrested  from  them.  I  said  power  once 
put  in  the  hands  of  the  people  for  direct  elections  was  not  surrendered  by  them  excpt 
through  a  king  or  a  dictator,  and  I  think  the  facts  will  bear  me  out  in  the  statement. 

Mr.  Blair:  Mr.  Chairman  and  gentlemen  of  the  Committee,  I  ask  your  indulgence 
for  a  few  moments.  I  simply  rise  because  the  attention  of  the  committee  has  been 
called  to  the  fact  that  I  differ  from  the  majority  of  the  Committee  on  Corporations  in 
that  I  refused  to  sign  the  report  which  provided  for  the  election  of  this  corporation  com- 
mission by  the  people. 

Mr.  Wysor:  I  understood  you  endorsed  both  the  report  of  the  majority  and  of  the 
minority.  (Laughter.) 

Mr.  Blair:  No,  sir;  I  did  not.  You  misunderstood  it.  If  you  will  look  you  will  find 
T  reserved  the  right  to  submit  a  minority  report  to  this  Section  3.  There  was  no  objec- 
tion to  my  doing  that.  I  was  in  favor  of  the  election  of  these  commissioners  by  the 
Legislature.  I  am  not  one  of  those  gentlemen  who  believe  that  the  Virginia  Legislature 
is  a  body  of  corrupt  men.  I  believe  the  Legislature  is  com^posed,  as  a  rule,  of  as  patriotic 
men  as  those  in  the  Constitutional  Convention,  and  that  they  can  be  as  fully  trusted  to 
place  on  this  commission  men  who  will  do  their  duty  as  the  Constitutional  Convention 
tion  can  be  trusted  to  do  it. 

I  heartily  favor  leaving  to  the  Legislature  the  appointment  of  these  commissioners. 
T  do  not  approve  of  the  Governor  being  allowed  to  appoint  them.  It  is  true  that  if  he 
would  follow  certain  rules  I  would  agree  to  it.  If  I  were  the  Governor  of  Virginia,  and 
had  to  m^ake  these  selections,  I  would  not  have  much  trouble.  This  office  of  corporation 
commissioner  is  going  to  be,  to  use  language  more  expressive  than  elegant,  a  soft  thing. 
The  members  are  going  to  have  their  pockets  full  of  railroad  passes,  ride  in  palace  cars, 
smoke  2.5-cent  cigars  and  drink  good  champagne.  If  I  had  the  appointing  of  the  mem- 
bers of  that  commission,  I  will  tell  you  what  1  would  do.  I  would  not  have  to  go  out  of 
the  city  of  Richmond  or  out  of  this  Convention.  I  would  go  over  here  and  get  my  friend 
from  Hanover  (Mr.  Carter).  Then  I  would  get  the  gentleman  from  Carroll  (Mr.  Bolen). 
T  would  also  put  on  that  commission  my  friend  from  Pulaski  (Mr.  Wysor).  (Laughter.) 
My  reason  for  making  these  selections  would  be  that  whenever  I  see  a  good  thing  I  like  to 
see  a  fat  man  have  it,  as  there  is  so  much  of  him  that  he  can  enjoy  himself. 

Gentlemen,  I  favor  the  election,  as  I  said  before,  of  this  commission  by  the  Legisla- 
ture. The  possibilities  that  mighl  grow  from  this  commission  cannot  be  calculated.  It 
has  the  power  of  making  a  corporation  commissioner  out  of  a  Constitution-maker.  It  has 
the  power  of  making  United  Slates  Senators  out  of  Governors,  and  Governors  out  of 
Lieutenant-Governors,  ad  infinitum.  I  would  not  place  in  the  hands  of  the  Governor  such 
power  as  this.  I  would  not  give  such  a  lever  to  any  man.  I  am  not  casting  any  reflec- 
tion on  anybody,  but  I  think  it  is  too  much  power  to  put  in  the  hands  of  an  individual. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXIIOX  OE  VIEGIXIA. 


2565 


I  simply  wished  to  explain  my  position  because  the  gentleman  from  Accomac  (Mr. 
Wescott)  has  stated  that  I  widely  differ  from  the  rest  of  the  committee. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Warren  (Mr.  O'Flaherty). 

The  amendment  was  rejected,  there  being  on  a  diA'ision,  ayes  IT;  noes,  42. 

Mr.  Blair:    I  olfer  the  following  amendment. 

The  Secretary  read  as  follows: 

In  line  10.  page  4.  after  the  word  1909."'  insert  the  words  not  more  than  two  of 
the  commissioners  shall  te  appointed  from  the  same  political  party."' 

Mr.  Blair:  Chairman.  I  ask  the  pardon  of  the  committee  for  addressing  it  again 

so  soon;  but.  gentlemen.  I  want  yoti  to  consider  that  amendment.  It  is  offered  with  the 
intention  of  making  this  commission  that  is  to  be  established  as  nearly  impartial  as  pos- 
sible. Of  course  I  recognize  the  hopelessness  of  an  argument  to  induce  the  committee 
to  adopt  the  amendment,  but  for  fear  some  gentlemen  may  think  it  is  offered  from  poli- 
tical motires,  I  want  to  state  that  it  is  taken  verbally  from  the  Interstate  Commerce 
Commission  act,,  which  was  passed  on  the  4th  day  of  February,  1SS7,  and  which  I  will 
read.  I  T^ant  you  to  also  bear  in  mind,  gentlemen,  that  this  act  was  passed  during  a 
Democratic  administration,  with  a  Democratic  majority  in  Congress.  Section  11  of  the 
act  which  establishes  the  Interstate  Commerce  Commission,  provides: 

That  a  commission  is  hereby  created  and  established  to  be  known  as  the  Interstate 
Commerce  Commission,  which  shall  te  composed  of  five  com-missioners.  who  shall  be 
appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate.  The 
commissioners  first  appointed  under  this  act  shall  continue  in  office  for  the  term  of  two, 
three,  four,  five  and  six  years,  respectively,  from  the  first  day  of  January.  Anno  Domini, 
eighteen  hundred  and  eighty-seven,  the  term  of  each  to  be  designated  by  the  President; 
their  successors  shall  be  appointed  for  terms  of  six  years,  except  that  any  person  chosen 
to  fill  a  vacancy  shall  be  appointed  only  for  the  tinexpired  term  of  the  commissioner 
whom  he  shall  succeed.  Any  commissioner  may  be  removed  by  the  President  for  ineffi- 
ciency, neglect  of  duty,  or  malfeasance  in  office. 

Now,  this  is  the  part  of  the  section  I  wish  to  call  your  attention  to  specially: 

Not  more  than  three  of  the  commissioners  shall  be  appointed  from  the  same  political 
party. 

The  object  of  that  was  to  secure  a  nonpartisan  hoard,  if  possible. 

I  will  not  offer  any  argument  myself,  but  I  want  to  read  to  you  a  few  remarks  made 
by  the  distinguished  chairman  of  the  Committee  on  Corporations,  to  maintain  my  posi- 
tion on  this  point.    In  a  little  colloquy  with  the  gentleman  from  Danville  (Mr.  Withers), 

he  said: 

Therefore,  this  thing  of  the  people  going  out.  and  untramelled.  casting  their  eyes 
over  the  State  and  picking  out  the  man  who  is  fitted  for  this  place  is  an  iridescent 
dream.  These  men  will  be  nominated  by  the  political  parties,  and  the  people  will  be 
reduced  to  the  necessity  of  having  to  decide  betv,-een  those  men  that  the  political  bosses 
put  up  for  them  to  choose  between. 

Mr.  Withers:    Would  not  the  effect  of  that  criticism  apply  to  the  Governor? 

Mr.  Braxton:    I  think  not,  sir. 

Mr.  Withers:    Wherein  does  it  differ? 

Mr.  Braxton:  I  will  tell  my  friend  if  I  can.  I  will  certainly  tell  him  what  the 
difference  in  my  mind  is.  The  office  of  Governor  is  a  political  office.  It  is  an  office  that 
no  man  can  expect  to  be  elected  to  unless  he  has  been  in  public  life  for  a  greater  or  less 
length  of  time.  The  people  know  him.  The  people  have  an  opportunity  of  judging  his 
capacity  for  political  matters.  The  office  provided  for  here  is  a  matter  that  has  no  more 
to  do  with  politics  than  has  the  cashier  of  a  bank.  It  ought  to  be  filled  by  men  who  are 
not  politicians.  It  ought  to  be  filled  by  men  whose  past  experience  has  been  in  the  line 
of  practical  business,  and  not  in  the  lines  of  political  matters.  The  people  are  much 
better  able  to  judge  of  a  man  to  serve  as  Governor  than  one  to  serve  as  corporation 
commissioner  under  such  a  provision  as  this,  because  the  functions  which  the  Governor 
has  to  perform  are  function  that  every  man  is  familiar  with. 


2566 


DEBATES  OE  THE  CO^^STITUTIONAL  CONVENTIOJ^-  OF  VIRGINIA. 


Now,  gentlemen,  on  such  distinguished  authority  as  this,  I  ask  you  to  adopt  my 
amendment. 

The  amendment  was  rejected,  there  being  on  a  division,  ayes  8,  noes  51. 

Mr.  Hamilton:  I  offer  an  amendment  to  come  in  in  line  6  of  Section  3.  That  clause 
reads:  "Subject  to  confirmation  by  the  General  Assembly  in  joint  session,  and  their 
regular  terms  of  office  shall  be  six  years."  I  move  to  substitute  "twelve"  instead  of 
"six." 

Mr.  Chairman,  I  propose  to  follow  that  by  an  amendment  to  make  the  salaries  of 
these  commissioners  four  thousand  dollars  a  year  apiece.  Not  less  than  that.  In  other 
words,  my  idea  is  that  if  we  are  to  have  this  commission,  we  ought  to  put  it  at  least  on 
the  basis  of  the  Court  of  Appeals.  We  ought  to  give  it  the  same  term  the  Court  of 
Appeals  has,  and  we  ought  to  give  the  members  the  same  salaries  as  the  salaries  re- 
ceived by  the  members  of  the  Court  of  Appeals. 

Mr.  Wysor:  I  hope  you  intend  to  follow  out  the  suggestion  of  the  gentleman  from 
Wythe  (Mr.  Blair)  and  put  on  the  commission  Mr.  Carter,  Mr.  Bolen  and  myself. 
(Laughter.) 

Mr.  Hamilton:  It  is  not  for  me,  Mr.  Chairman,  at  present  to  say  who  is  to  go  on  it, 
and  I  am  afraid  it  never  will  be  for  me  to  say  who  is  to  go  on  it.  If  it  were,  I  should  take 
great  pleasure  in  selecting  the  honorable  gentleman  from  Pulaski  (Mr.  Wysor)  not  to 
mention  the  other  two. 

But  that  is  not  the  question,  and  I  am  serious  about  this  matter.  Gentlemen  of  the 
Convention  know  that  I  have  opposed  most  of  this  measure  providing  for  the  corporation 
commission  with  what  I  thought  were  reasonable  and  proper  powers,  properly  guarded. 
At  times  I  have  been  irritated  and  felt  that  I  was  unfairly  treated  when  it  seemed  to  me 
that  the  majority  were  not  willing  to  listen  to  reasonable  suggestions  to  better  their 
measure;  but  that  makes  no  difference,  Mr.  Chairman.  We  are  to  have  it  and  I  want  to 
get  this  measure  so  framed  that  we  can  put  the  men  who  are  to  go  on  it  as  far  above 
the  danger  of  temptation  as  possible.  We  ought  to  put  it  as  high  in  salary  and  as  long 
in  term  as  is  possible,  to  get  the  very  best  available  men  in  Virginia  to  serve  upon  it. 

I  have  had  no  conference  with  anybody  about  it,  and  I  do  not  want  any.  If  there  is 
no  merit  in  the  suggestion,  let  it  go  down.  I  have  been  used  to  trouble,  Mr.  Chairman. 
I  can  stand  it  as  well  as  anybody  else;  but  if  it  is  right  and  proper  that  you  should  con- 
stitute this  court,  this  more  than  court,  as  I  have  described  before  it  before  this  prose- 
cutor, judge  and  legislator  all  combined,  you  should  put  the  members  as  far  as  possible 
above  the  reach  of  temptation,  and  you  should  give  them  a  term  that  is  long  enough  and 
a  salary  that  is  large  enough  to  induce  the  reasonably  best  men  you  can  get  in  Virginia 
to  serve  on  it. 

I  do  not  see  why  this  should  be  objected  to.  It  is  said  this  position  is  more  impor- 
tant than  that  of  United  States  Senator.  It  is  almost  more  important  than  a  member  of 
the  Court  of  Appeals,  and  yet  we  have  given  the  members  of  the  Court  of  Appeals  a  long 
term  and  a  good  salary.  Why  not  make  this  in  fact,  sir,  one  of  the  highest  and  most 
reputable  courts  of  this  State,  a  court  upon  which  any  man  who  can  afford  to  accept  the 
salary  would  feel  an  honor  to  serve?  I  therefore  offer  the  amendment,  having  in  view 
the  regular  term.  It  does  not  vary  these  first  appointees,  you  understand.  If  my  friend 
from  Pulaski  (Mr.  Wysor)  is  one  of  the  first  appointees,  and  is  not  satisfactory,  he  can 
be  turned  off  under  my  amendment,  but  if  he  is  satisfactory  he  will  be  re-appointed  prob- 
ably for  a  twelve-year  term.    I  am  sure  we  would  all  get  justice  at  his  hands. 

Let  us  make  it  a  twelve-year  term,  Mr.  Chairman,  and  at  the  proper  time  I  will  move 
to  make  the  salary  four  thousand  dollars. 

I  have  never  seen  a  United  States  Judge  who  had  been  on  the  bench  long  who  did 
not  become  arbitrary  and  somewhat  tyrannical.  I  am  not  a  life  tenure  man,  but  I  be- 
lieve every  judge  ought  to  have  a  term  long  enough  to  enable  him  to  feel  reasonably  free 
from  the  demagogic  influences  which  surround  a  judge  as  v/ell  as  other  people;  and  I 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OE  VIRGIXIA.  2567 

think  the  same  in  regard  to  these  officers.  We  ought  to  give  them  a  long  term  and  a 
decent  salary,  so  as  to  get  the  best  people  in  the  State  on  the  commission. 

Mr.  Braxton:  Mr.  Chairman,  the  members  of  the  Committee  on  Corporations  who 
signed  the  majority  report  think  they  hardly  deserve  the  criticism  that  the  gentleman 
from  Petersburg  (Mr.  Hamilton)  applies  to  them  when  he  says  they  are  not  inclined  to 
listen  to  suggestions.  I  think  if  any  criticism  could  be  passed  on  them,  it  would  be  that 
they  are  inclined  to  listen  to  too  many  suggestions.  Certainly  we  have  most  carefully 
and  patiently  Bstened  to  every  suggestion,  and  adopted,  without  hesitation,  those  that 
could  commend  themselves  to  us.  Listening  to  them  is  one  thing,  adopting  them  is 
another.   We  cannot  agree  to  adopt  every  one  we  listen  to. 

This  is  a  matter  which  was  considered  by  the  committee,  and  the  committee  is 
satisfied  that  twelve  years  is  too  long  a  time.  It  is  not  so  much  a  question  of  independ- 
ence, because  unless  you  make  it  a  life  tenure,  although  you  make  it  twelve  years,  as  the 
'twelve  years  approach  their  termination,  the  man  would  have  all  the  temptations  he 
would  have  if  it  originally  had  not  been  a  shorter  term.  The  idea  we  have  is  that  the 
term  should  be  sufficiently  long  to  justify  a  man  in  taking  the  office  and  in  running  for  it, 
iDut  not  to  make  him  independent.  If  it  is  only  a  two-year  term,  he  would  not  take  it. 
He  would  say  it  was  not  worth  his  time.  If  it  is  a  six-year  term,  it  is  long  enough  to  in- 
duce him  to  take  it,  but  it  ought  never  to  be  long  enough  to  make  him  independent  of 
the  source  from  v/hich  he  derives  his  power. 

Mr.  Hamilton:  In  order  to  meet  the  point  made  by  the  gentleman,  I  will  suggest  to 
him  what  I  thought  of.  Are  you  willing  to  agree  that  after  serving  out  one  full  term, 
the  man  shall  be  ineligible  for  reappointment? 

Mr,  Braxton:  Mr.  Chairman,  I  do  not  believe  in  the  method  of  getting  good  work  by 
punishing  the  man  who  does  it,  and  saying,  "  Although  you  may  be  a  most  efficient  and 
valuable  servant,  the  only  thing  you  can  hope  for  is  to  be  inevitably  turned  out  of  your 
office.  I  think  the  result  would  do  much  more  harm  than  good.  I  wish  to  say  only  one 
other  thing,  that  out  of  the  twenty-nine  commissioners  with  power  and  without  power,  in 
the  United  States,  an  overwhelming  majority  have  terms  of  six  years. 

The  amendment  was  rejected. 

Mr.  Barbour:  I  move  to  amend  this  section  by  striking  out  the  word  "  1909,"  in  line 
59,  and  substituting  "  1906." 

The  Chairman:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Culpeper  (Mr.  Barbour). 

Mr.  Barbour:  Before  that  vote  is  taken  Mr.  Chairman,  I  just  desire  to  call  the 
attention  of  the  committee  to  the  fact  that  that  amendment  in  no  way  affects  the  term 
of  the  office.  It  merely  permits  the  Legislature  to  provide  after  January  1st,  1*^5,  that 
these  officers  may  be  elected  by  the  people,  instead  of  having  to  wait  until  1909. 

Mr,  Hamilton:  I  was  not  aware  we  had  gone  that  far.  I  desire  to  offer  another 
amendment  prior  to  the  point  where  your  amendment  comes  in. 

In  line  57,  Section  3,  page  6,  the  salary  of  each  of  these  commissioners  is  fixed  at 
not  less  than  $3,000  per  annum.  I  move  to  make  it  $4,000.  I  have  already  stated  prac- 
tically my  reasons  for  it,  I  am  very  much  in  earnest  about  the  matter,  I  believe  it  is  a 
matter  of  importance.  No  official  in  the  State  of  Virginia  will  have  more  serious  duties, 
more  responsible  duties,  to  perform  than  these  people.  If  they  give  their  services  to  this 
subject,  they  will  earn  every  dollar  of  $4,000,  and  we  have  the  assurance  from  the  chair- 
man of  the  committee  that  the  work  of  this  corporation  commission  will  produce  some 
twenty  or  thirty  thousand  dollars  in  excess  of  its  expenses.  Let  us  pay  these  people  a 
fair,  decent,  living  salary  for  the  work  they  are  going  to  do,  and  try  to  get  the  best  men. 
If  we  cannot  get  them  for  a  term  of  twelve  years,  we  are  bound  to  have  a  term  of  six 
years.  Let  us  give  tliem  $4,000  at  any  rate.  They  will  be  worth  it,  if  they  are  fit  for  the 
position.  You  cannot  get  a  traffic  man  that  would  be  employed  by  any  railroad  in  the 
State  in  any  responsible  position  for  $3,000.    You  cannot  get  a  first-class  lawyer  for 


2568 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


$3,000,  and  I  do  not  believe  you  can  get  a  first-class  shipper  for  $3,000.  I  hope  very  much 
that  the  Convention  will  make  the  salary  $4,000  instead  of  $3,000. 

Mr.  Thorn:  I  do  not  understand  the  gentleman's  motion.  Is  it  to  strike  out  the 
word  "three"  and  insert  "four,"  so  that  it  shall  be  not  less  than  four  thousand  dollars? 

Mr.  Hamilton:  That  is  it  exactly.  The  salary  of  the  Supreme  Court  judges,  under 
our  new  Constitution,  is  made  not  less  than"$4,000.  The  present  salary  is  $3,000,  but  it  is 
for  a  twelve-year  term,  and  many  a  man  has  sacrificed  two  or  three  times  the  salary  of 
those  places  for  the  honor  of  the  position. 

The  chairman  was  somewhat  fretted  by  my  criticism  of  the  committee.  I  intended 
to  say  when  I  first  rose,  that  although  he  has  at  times  irritated  me  very  much,  I  must  say 
I  have  rarely,  if  ever,  seen  a  man  whose  intellectuality  and  whose  character  I  have  a 
greater  admiration  for  than  his;  and  it  was  with  the  deepest  and  the  greatest  regret, 
although  I  did  not  expect  it  would  be  otherwise,  that  I  heard  him  say  he  would  not  serve 
on  this  commission.  I  hope  to  God  we  can  get  men  like  him  on  the  commission,  Mr. 
Chairman,  and  I  want  the  chance  to  get  the  strongest,  best,  ablest  men  in  Virginia  to 
serve  on  this  commission  and  prevent  the  dreadful  troubles  which  will  come  from 
broken-down,  worthless  people  being  put  upon  it. 

Mr.  Braxton:  Mr.  Chairman,  I  must  thank  my  friend  from  Petersburg  for  the  kind 
things  he  has  just  said  about  me;  and  it  makes  it  peculiarly  agreeable  to  me  to  concur 
in  the  amendment  which  he  has  just  offered.  I  have  no  authority  to  speak  for  the  Com- 
mittee on  Corporations  in  this  matter,  but  I  will  say  for  myself  that  I  heartily  concur  in 
what  the  gentleman  has  said,  and  I,  personally,  w^ould  be  very  glad  to  see  the  minimum 
salary  put  at  $4,000  for  the  reason  he  states,  and  because  I  believe,  for  the  reasons  I 
explained  to  the  committee  the  other  day,  that  even  if  you  put  it  at  $6,000  it  would  not 
cost  the  State  one  cent,  as  the  work  of  that  commission  will  earn  its  salary,  and  a  good 
deal  more  besides,  from  sources  from  which  the  State  is  not  drawing  one  dollar  of 
revenue  to-day,  and  from  such  sources  that  there  will  be  no  burden  fo  collect.  I  refer 
to  the  annual  tax  of  not  less  than  $5  on  each  corporation  a  year.  Personally,  I  shall  be 
very  glad  to  see  the  gentleman's  amendment  adopted,  and  I  will  take  pleasure  in  voting 
for  it.    I  do  not  speak  for  the  committee.   I  do  not  know  what  their  views  are. 

Mr.  Thom:  I  move  to  amend  the  amendment  by  inserting  the  word  "five"  in  place 
of  the  word  "four." 

The  Chairman:    The  question  is  on  the  amendment  of  the  gentleman  from  Norfolk 
(Mr.  Thom)  to  the  amendment  of  the  gentleman  from  Petersburg  (Mr.  Hamilton). 
The  amendment  was  rejected. 

The  Chairman:  The  question  is  on  the  amendment  proposed  by  the  gentleman  from 
Petersburg  (Mr.  Hamilton). 

The  amendment  was  agreed  to,  there  being,  on  a  division,  ayes  35,  noes  26. 

Mr.  Barbour:  I  now  offer  my  amendment  to  strike  out  "1909,"  in  line  59,  and  insert 
"1906"  In  place  thereof. 

Mr.  Kendall:  Mr.  Chairman,  I  dislike  to  disagree  with  the  gentleman  from  Cul- 
peper  (Mr.  Eaibour)  but  it  seems  to  me  this  is  unwise  and  that  we  ought  to  give  an 
opportunity  for  a  full  test  of  the  appointment  by  the  Governor  before  it  is  thrown  into 
hands  of  the  Legislature.  I  think  the  trouble  is  going  to  be  a  disposition  on  the  part  of 
the  Legislature  to  please  the  public  by  giving  them  the  offices  to  vote  for;  but  I  think 
before  that  is  done  the  people  should  have  ample  and  full  time  to  see  what  is  the  opera- 
tion under  this  system  of  appointment,  so  that  they  may  have  the  matter  fully  tested 
before  that  question  is  brought  up  at  all  for  decision, 

Mr.  Keezell:  I  would  suggest  that  if  you  put  it  off  until  1909  and  these  people  were 
not  satisfactory,  every  one  of  tliem  could  be  reappointed,  and  instead  of  having  a  six-year 
term,  they  would  have  a  twelve-year  term.  Therefore  it  seems  to  me  th'e  amendment  of 
the  gentleman  from  Culpeper  ought  to  prevail,  so  as  to  leave  it  in  the  power  of  the 
General  Assembly  to  have  these  people  elected  by  the  people  in  case  the  appointments 
are  not  satisfactory. 


DEBATES  OF  TEE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIPtGI^'I.A. 


2569 


The  Chairman:  The  q-aestion  is  iii3on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Culpeper   (Mr.  Barbour). 

The  amendment  was  rejected,  there  being  on  a  division,  a:/6S,  27;  noes,  32. 

Mr.  Waddiil:  I  move  to  amend  Section  3  by  striking  out  in  line  59,  the  word  "1909" 
and  inserting  the  word  "1908." 

The  reason  I  offer  this  amendment  is  that  the  term  of  the  third  commissioner  ex- 
pires on  the  first  day  of  February,  1909,  and  the  General  Assembly  could  not  provide  for 
his  election,  because  there  vvould  only  be  a  month  v/ithin  which  to  act.  If  my  amend- 
ment is  adopted,  the  Legislature  will  have  an  opportunity  to  elect  the  third  commissioner. 

Mr.  Fairfax:  I  vvish  to  say  that  in  the  case  of  the  election  of  United  States  Senator, 
they  have  always  in  the  past  been  elected  one,  and  sometimes  two  years  before  the 
time  for  them  to  take  their  seats.    Why  could  not  this  be  done  in  the  same  way. 

Mr.  WaddilJ:  Because  it  provides  that  the  Legislature  shall  not  act  until  the  first 
day  of  January,  1909,  and  that  is  v;ithin  thirty  days  of  the  expiration  of  the  term  of  the 
third  commissioner. 

Mr.  Eggleston:  I  desire  to  call  the  attention  of  the  gentleman  from  Henrico  (Mr. 
Waddiil)  to  the  fact  that  during  the  year  1909  no  General  Assembly  v/ill  oe  in  session, 
so  that  the  first  time  the  General  Assembly  could  possibly  authorize  the  election  by  the 
people  would  be  after  the  first  v»^eek  in  January,  1910.  Under  this  Constitution  there 
v/ould  not  be  a  General  Assembly  until  that  time.  I  say  that  in  favor  of  the  amendment 
of  the  gentleman  from  Henrico.  Putting  the  election  by  the  General  Assembly  in  the 
year  1909  ^artually  postpones  it  until  1910. 

Mr.  Waddiil:  If  this  provision  stands,  you  cannot  elect  one  of  the  commissioners 
until  1911.    That  is  the  practical  effect  of  it. 

Mr.  Braxton:  Mr.  Chairman,  I  am  authorized  by  the  Committee  on  Corporations, 
or  those  members  with  v.^hom  I  have  been  able  to  confer,  to  say  that  they  will  accept  the 
amendment  of  the  gentleman  from  Henrico  (Mr.  Waddiil),  to  change  the  year  from  1909 
to  1908,  and  would  be  glad  to  have  it  adopted.  « 

The  amendment  was  agreed  to. 

Mr.  Thornton:  I  v/ould  like  to  revert  to  line  6  of  Section  3.  I  move  to  insert  the 
w^ord  "eight"  in  lieu  of  the  v/ord  "six."  The  effect  of  that  a^mendment  would  be  to  make 
these  commissioners,  for  the  first  term,  hold  for  eight  years  instead  of  six  years  as  pro 
vided  by  the  committee.  Under  the  terms  of  this  Constitution  none  of  the  circuit  court 
judges  v'ill  hold  for  a  less  term  than  eight  years;  and  it  does  seem  to  me  that  the  mem- 
bers of  this  important  commission  should  serve  at  least  as  long  as  a  circuit  court  judge 
serves  in  the  State  of  Virginia. 

Mr.  Braxton:  I  cannot  agree  with  my  good  friend  as  to  the  wisdom  of  that  amend- 
ment. The  experience  of  this  country  seems  to  be  that  six  years  is  a  suitable  and  con- 
venient term  for  these  oincers.  While  they  have  some  judicial  functions,  they  are  not 
strictly  judicial  officers.  They  have  many  other  functions  to  perform  much  more  im- 
portant than  judicial  functions.  I  think  that  eight  years  is  too  long  a  time  for  a  term. 
I  will  again  state  to  the  committee  that  out  of  the  tv/enty-nine  States  vvhich  have  com- 
missions the  great  majority  of  them  hold  for  six  years.  I  presume  that  limitation  has 
been  fixed  because  the  experience  of  those  vvho  started  off  with  six  years  showed  that  to 
be  a  very  reasonable  and  proper  term. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendm^ent  of  the  gentleman 
from  Prince  William  (Mr.  Thornton). 

The  amendment  was  rejected. 

Mr.  Braxton:  If  it  is  agreeable  to  the  committee  I  would  be  glad  if  they  would  take 
up  Section  18.    Sections  11  and  18  are  the  only  ones  now  left. 

The  Chairman:  That  will  be  done  unless  there  is  objection.  The  Secretary  will 
read  Section  18. 

162— Const.  Deb. 


2570 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


Sec.  18.  General  laws  regulating  and  controlling  the  issue  of  stock  and  bonds  by 
corporations  shall  be  enacted  by  the  General  Assembly;  but  no  statute  shall  be  enacted 
authorizing  any  corporation  to  issue  its  stock  as  full  paid,  at  less  than  its  par  value. 
Whenever  anything  other  than  money  is  hereafter  received,  or  to  be  received,  by  a  cor 
poration,  in  full  or  part  payment  for  stock  or  bonds  to  be  issued  by  ft,  the  corporation 
shall,  before  the  issue  of  such  stock  or  bonds,  file  with  the  State  corporation  commission 
a  full  and  accurate  written  description  (verified  by  the  oath  of  the  president  or  secre- 
tary of  the  corporation)  of  the  property  or  services  so  received,  or  to  be  received 
(stated  in  detail),  and  against  which  the  said  stock  or  bonds  are  to  be  issued,  together 
with  a  written  statement,  similarly  verified,  of  the  valuation  at  which  the  said  property 
or  services  are  so  received,  or  to  be  received — a  separate  valuation  being  specified  for 
each  item  of  the  property  or  services  as  stated  in  the  description  thereof.  The  General 
Assembly  shall  provide  adequate'  penalties  for  the  violation  of  this  section,  or  of  any 
laws  passed  in  pursuance  thereof  ;  and  it  shall  be  the  duty  of  the  State  corporation 
commission  to  see  to  the  enforcement  of  the  provisions  of  this  section,  by  adjudging  and 
enforcing  against  any  delinquent  or  offending  company,  in  the  manner  hereinbefore 
prescribed  by  lav/. 

Mr.  Braxton:  I  am  authorized  by  the  committee  to  offer  an  amendment,  which  is  a 
redraft  of  the  middle  portion  of  that  section:  Strike  out  the  words  beginning  in  line  3 
with  the  words  "but  no  statute  shall  be  enacted,"  down  to  and  including  the  words  "in 
the  description  thereof,"  in  line  18;  and  insert  in  lieu  thereof  the  following: 

Whenever  stocks  or  bonds  are  to  be  issued  by  a  corporation,  it  shall,  before  issuing 
such  stocks  or  bonds,  file  with  the  State  Corporation  Commission  a  statement  (verified 
by  the  oath  of  the  president  or  secretary  of  the  corporation,  and  in  such  form  as  may  be 
prescribed  or  permitted  by  said  commission)  setting  forth  fully  and  accurately  the 
basis  or  financial  plan  upon,  or  for,  which  such  stock  or  bonds  are  to  be  issued;  and 
where  such  basis  or  plan  includes,  in  whole  or  in  part,  services  or  property  (other  than 
money)  received  or  to  be  received  by  the  company,  such  statement  shall  accurately 
specify  and  describe  (in  the  manner  prescribed  or  permitted  by  said  commission)  such 
services  and  property,  together  with  the  valuation  at  v/hich  the  same  are  received,  or  to 
be  received  by  the  company  ;fand  such  corporation  shall  comply  with  any  other  require- 
ments or  restrictions  which  may  be  imposed  by  law. 

The  difference  betv/een  that  amendment  and  the  provision  contained  in  the  majority 
report  is  two-fold.  In  the  section  as  origiinally  reported  this  sentence  occurs:  "But  no 
statute  shall  be  enacted  authorizing  any  corporation  to  issue  its  stock  as  full  paid  at  less 
than  its  par  value."  That  is  omitted  in  the  amendment  now  proposed.  If  the  com- 
mittee will  bear  with  me  I  would  like  to  explain  this,  which  I  find  has  been  misunder- 
stood. 

In  order  that  the  committee  may  understand  the  scope  of  this  amend- 
ment, I  desire  to  call  your  attention  to  the  sentence  in  the  printed  report  that  "no 
statute  shall  be  enacted  authorizing  any  corporation  to  issue  its  stock  as  full  paid,  at 
less  than  its  par  value."  Observe  that  it  does  not  say  that  stock  shall  not  be  issued  as 
full  paid  at  less  than  its  par  value,  but  that  no  statute  shall  be  passed  permitting  that  to 
be  done.  There  is  a  great  deal  of  difference  of  opinion  among  the  lawyers  as  to  whether 
it  can  be  done  regardless  of  the  statute.  Some  of  them  think  that  it  can  be  done  under 
some  circumstances;  and  some  think  it  cannot.  In  the  case  of  Hanley  against  Stutz  it 
was  held  that  it  could  be  done,  and  that  a  reissue  of  stock  by  a  going  concern  could  be 
made  and  the  stock  put  upon  the  market  and  sold  for  what  it  would  bring,  without 
liability  on  the  purchaser  for  the  difference  between  the  price  he  paiid  and  the  par  value. 
In  the  case  of  Camden  against  Stuart,  the  same  court  apparently  reversed  itself  in  that 
respect,  or  at  least  so  far  modified  its  former  decision  as  to  leave  the  matter  in  doubt. 
Your  committee,  in  considering  this  matter  originally  did  not  desire  to  enter  into  that 
domain  and  v/ithout  undertaking  to  say  whether,  at  common  law,  stock  could  ever  be 
issued  as  full  paid  at  less  than  its  par  value,  it  simply  said  that  no  statute  on  that  sub- 
ject should  be  passed.  Upon  further  reflection  the  committee  has  come  to  the  conclusion 
that  it  would  be  better  not  to  put  that  matter  into  the  Constitution  for  this  reason : 


DEBATES  OF  THE  CO^^STITUTIOXAL  CONVEXTIOX  OF  YIEGIXIA.  2571 

Stock  has,  until  comparatively  recently,  been  supposed  to  stand  for  two  things;  in  the 
first  place,  to  indicate  how  much  money  the  stockholders  have  contributed  to  a  common 
enterprise,  and  in  the  second  place,  what  proportion  that  bore  to  the  entire  fund.  In 
modern  times  the  practice  has  been  to  issue  stock  merely  to  indicate  the  proportion  that 
a  stockholder  may  own  in  common  with  the  other  stockholders,  rather  than  to  indicate 
what  has  been  put  in.  The  capitalization,  as  it  were,  of  the  good  will  or  the  future 
profits  of  a  company  has  grov/n  very  much  in  practice.  The  committee  do  not  approve 
of  that.  We  do  not  think  it  is  a  wise  thing  to  do;  but  we  recognize  the  fact  that,  at 
present,  the  views  of  the  lawyers  and  the  public  generally  on  that  matter  seem  to  be 
undergoing  a  change  and  it  seems  to  be  reasonably  possible,  if  not  probable,  that  at  an 
early  day  stock  will  no  longer  stand  as  the  representative  of  the  amount  a  man  has  put 
into  an  enterprise,  but  stands  merely  as  the  representative  of  his  proportionate  share 
therein.  If  that  be  true,  the  time  might  come  w^hen  it  would  be  desirable,  in  the  interest 
of  advancement,  in  the  interest  of  development,  and  in  order  to  keep  abreast  of  modern 
ideas  that  the  Legislature  should  be  permitted  to  pass  such  an  act.  I  say  that  time  may 
come;  but  I  do  not  think  it  has  come  now.  I  v/ould  unhesitatingly  vote  against  it;  but 
I  recognize  the  fact  that  it  is  reasonably  possible  that  such  a  thing  may  come  to  pass. 

I  will  state  to  the  committee  that  before  making  this  change  I  corresponded  at  con- 
siderable length  with  some  of  the  best  known  corporation  authorities  in  this  country. 
Those  of  you  who  are  lawyers  w^ill  recognize  the  names  of  Seymour  Thompson,  Victor 
Morawitz  and  William  W.  Cook  as  the  highest  authorities  on  the  subject.  I  stated  the 
case  to  them  as  fully  as  I  could,  and  they  were  practically  agreed — Morawitz  and  Cook 
out  and  out,  and  Thompson  practically — that  it  would  be  best  to  leave  this  as  an  open 
matter  to  be  dealt  with  by  the  Legislature  in  the  future,  as  changing  conditions  might 
show  to  be  wise.  But  in  order  to  get  publicity  in  these  matters,  and  inasmuch  as  stock 
cannot  be  depended  upon  to  show^  what  amount  has  been  paid  in,  we  have  prepared  the 
provision  which  I  have  just  read.  A  company  to-day  may  have  $10,000  worth  of  stock 
issued,  by  some  hocus  pocus,  on  the  basis  of  $500.  Creditors  and  those  contemplating 
giving  credit,  purchasers  and  those  contemplating  buying,  no  longer  depend  upon  the 
face  value  of  the  stock  as  an  indication  of  what  is  invested  in  the  enterprise.  They 
look  at  the  assets  or  something  else.  In  order  to  have  publicity  in  this  matter;  in  order 
to  have  some  authoritative  source  to  which  everybody  can  go  for  such  information  as  the 
public  is  entitled  to  have,  we  provide  that  wherever  stock  is  issued,  whether  it  is  for 
nothing  or  for  something  and  whether  that  something  -is  great  or  small,  it  must  be 
reported  to  the  corporation  commission,  without  authority  in  the  commission  to  pass, 
approve  or  reject  the  valuation.  They  merely  have  to  state  the  fact,  when  stock  is 
issued,  what  it  was  issued  for,  so  that  the  public  can  know  and  everybody  can  know 
absolutely  the  thing  which  they  can  no  longer  depend  upon  finding  out  from  the  face 
value  of  the  stock. 

I  trust,  therefore,  it  may  be  the  pleasure  of  the  Committee  of  the  Vv^hole  to  adopt 
this  amendment.  I  hope  I  have  been  able  to  make  it  plain,,  in  my  brief  remarks,  this 
matter,  on  v/hich  we  might  talk  for  several  hours. 

The  effect  of  the  provision  as  it  now  is  that  every  corporation  hereafter  issuing  stock 
must  file  a  statement  under  oath  showing  what  the  stock  was  issued  for,  w^hether  it  is 
Issued  for  money,  for  property,  for  services  or  for  nothing,  if  there  is  any  way  to  issue 
it  for  nothing.  Whatever  they  do  they  must  state  under  oath  and  file  that  statement 
that  every  man  can  have  an  absolutely  reliable  source  of  information  on  that  matter. 

Mr.  George  K.  Anderson:  Did  your  committee  consider  v/hat  effect  this  amendment 
would  have  upon  the  liability  of  the  holder  of  stock  which  has  been  fully  paid  up,  in  fact, 
so  far  as  creditors  are  concerned? 

Mr.  Braxton:  Yes,  sir;  our  idea  is  that  it  has  no  effect  on  it  at  all.  It  merely  says 
that  whatever  they  do,  although  it  may  be  unlawful,  they  must  state  it  under  oath  and 
file  the  statement.  If  they  issue  stock  without  any  basis,  they  must  state  that  fact.  As 
to  whether  it  creates  a  liability  or  not  is  for  the  courts  to  determine. 

On  motion  of  Mr.  Blair  the  Committee  rose  and  the  President  resumed  the  chair. 


2572 


DEBATES  OF  THE  CONSTITUTIO]SrAL  CONVENTION  OF  VIRGINIA. 


i  •..  .       _  . 

ACCOMMODATiONS  FOR  THE  CONVEMTJON. 

IVIr.  Cardwell,  on  behalf  of  the  committee  appointed  by  the  House  of  Delegates 
'addressed  the  Convention  as  follows: 

Mr.  President,  I  desire  on  behalf  of  the  committee  appointed  to-day  by  the  House  of 
Delegates  to  tender  to  this  Convention  the  use  of  the  Hall  of  the  House  of  Delegates  at 
any  time  and  all  hours  of  the  day,  except  the  hours  between  12  o'clock  noon  and  5 
o'clock  in  the  afternoon.  I  desire  to  say  on  behalf  of  the  House  of  Delegates  that  they 
recognize  the  importance  of  the  work  this  Convention  is  doing  to  the  people  of  Virginia 
:and  that  they  desire  that  this  work  should  go  on  unimpeded  by  the  presence  of  the 
^Legislature  or  anything  else  that  may  happen.  We  hope  it  may  be  the  pleasure  of  the 
Convention  to  accept  this  proposition. 

I  think  I  feel  authorized  in  saying  that  the  House  of  Delegates  will  not  use  the 
House  more  than  two  hours  a  day,  beginning  at  12  o'clock,  for  the  first  few  weeks  of 
their  session.  (Applause.) 

Mr.  Thom:    I  offer  the  following  resolution: 

Resolved,  1.  That  the  cordial  thanks  of  this  Convention  be  and  hereby  are  tendered 
to  the  Honorable,  the  House  of  Delegates,  for  the  offer  of  the  use  of  their  hall  for  the 
.  sessions  of  the  Convention,  and,  at  the  sam^e  time,  that  the  House  of  Delegates  be 
Informed  that  the  Convention  had  already  arranged  to  occupy  the  hall  of  the  Mechan- 
ics' Institute,  and  will  find  it  unnecessary  to  incommode  the  House  of  Delegates  in  the 
use  of  the  hall  of  that  honorable  body. 

2.  Thp.t  a  copy  of  these  resolutions  be  certified  by  the  President  and  Secretary  of 
the  Convention  to  the  Honorable,  the  House  of  Delegates. 

On  motion  of  Mr.  Turnbull  the  Convention  adjourned  until  to-morrow,  February  20, 
at  10  o'clock  A.  M. 


THURSDAY,  February  20,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  B.  Beauchamp. 

CORPORATIONS. 

On  motion  of  Mr.  Braxton  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Corporations, 
Mr.  Ayers  in  the  chair. 

Mr.  Bra,xton:  Mr.  Chairman,  I  desire"  to  move  that  in  Section  19  the  date  be 
changed  from  January,  1902,  to  1903.  My  purpose  in  doing  that  is  to  enable  some  of  the 
corporations  that  have  been  chartered,  but  have  not  yet  effected  their  organization,  to 
do  so  before  the  charters  are  repealed.  I  find  the  law  now  gives  them  two  years  in 
which  to  effect  their  organization.  I  think  it  would  be  nothing  more  than  fair  and 
reasonable  that  they  should  have  until  the  first  of  next  January  in  which  to  do  so,  in- 
stead of  cutting  them  off  in  January  past. 

I  move,  therefore,  that  the  date  shall  be  changed  from  1902  to  1903. 

The  amendment  was  agreed  to. 

The  Chairman:    The  Secretary  will  read  Section  11. 

Sec.  11.  Every  employee  of  any  railroad  corporation  engaged  in  the  physical  con- 
struction, repair  or  maintenance  of  its  roadway,  track,  or  any  of  the  structures  con- 
nected therewith,  or  in  the  physical  operation  of  its  trains,  cars,  engines,  or  switches, 
shall  have  the  same  rights  and  remedies  for  every  injury  suffered  by  him  from  the 
SLcts  or  omissions  of  such  corporations  or  its  employees,  as  are  allowed  by  law  to  other 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  2573 

persons  not  employees,  or  passengers,  when  the  injury  results  from  the  negligence  of 
a  superior  agent  or  officer  of  the  corporation,  or  from  that  of  a  person  employed  by 
it  having  the  right  to  control  or  direct  the  services  of  the  party  injured,  or  the  service 
of  the  co-employee  by  whom  he  is  injured,  and  also  when  the  injury  results  from^  the 
negligence  of  a  co-employee  on  another  train  of  cars,  or  who  has  charge  of  any  switch, 
signal  point  of  locomotive  engine,  or  is  charged  with  dispatching  trains  or  transrait- 
ting  telegraphic  orders  therefor.  Knov/ledge  by  any  employee  injured,  of  the  defective 
or  unsafe  character  or  condition  of  any  machinery,  ways,  appliances,  or  structure,  shall 
not  of  itself  be  a  bar  to  recovery  for  an  injury  caused  thereby.  When  death,  whether 
instantaneous  or  otherwise,  results  from  any  injury  to  such  an  employee,  received  as 
aforesaid,  the  personal  representative,  surviving  consort  and  relatives  of  the  deceased 
shall  have  the  same  rights  and  remedies  that  they  would  have  had  if  he  had  not  been 
an  employee  of  the  company.  Any  contract  or  agreement,  express  or  implied,  made  by 
any  employee,  to  waive  the  benefit  of  this  section,  shall  be  null  and  void.  This  section 
shall  not  be  construed  to  deprive  any  employee  of  a  corporation,  or  his  legal  or  per- 
sonal representative,  surviving  consort  or  relatives,  of  any  rights  or  remedy  that  he 
now  has  or  they  now  have  by  the  law  of  the  land.  The  General  Assembly  may  enlarge 
the  relief  and  remedies  herein  provided  for  the  above  named  class  or  employees,  and 
may  extend  those  herein  provided  for,  or  herein  authorized,  to  any  other  class  of  em- 
ployees. 

Mr.  Braxton:  In  line  7  of  that  section  the  word  "corporations"  is  printed  in  the 
plural.  It  should  be  in  the  singular.  At  the  end  of  the  same  line  the  word  "are" 
appears.  That  should  be  "m.ay  be."  I  do  not  know  that  it  is  necessary  to  make  any 
formal  motion  to  amend  in  these  particulars. 

The  Chairman:    The  changes  will  be  made,  if  there  is  no  objection. 

Mr.  Braxton:  In  line  18,  after  the  word  "any,"  should  be  inserted  the  word  "such," 
so  as  to  read  "any  such  employee." 

In  line  24,  after  the  word  "shall,"  should  be  inserted  the  word  "respectively,"  so  that 
it  will  read  "shall  respectively  have  the  same  rights  and  remedies." 

The  Chairman:    If  there  is  no  objection,  the  amendments  referred  to  will  be  made. 

Mr.  Braxton:  Mr.  Chairman,  the  following,  I  suppose,  should  be  in  the  nature  of  a 
formal  amendment.  In  lines  25  and  26  strike  out  these  words:  "That  they  would  have 
had  if  he  had  not  been  an  employee  of  the  company,"  and  insert  in  lieu  thereof  the  fol- 
lowing: "Therefor  as  may  be  allowed  by  law  to  the  personal  representative,  surviving 
consort  or  relatives  of  other  persons  not  employees  or  passengers." 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  Chairman,  I  move  to  amend  by  striking  out  the  sentence  begin- 
ning in  line  32  and  insert  in  lieu  thereof  the  following: 

Nothing  contained  in  this  section  shall  have  the  effect  of  restricting  the  power  of 
the  General  Assem-bly  to  further  enlarge,  for  the  above-named  class  of  employees,  the 
rights  and  remedies  hereinbefore  provided  for,  or  to  extend  such  rights  and  remedies 
to,  or  otherwise  enlarge  the  present  rights  and  remedies  of  any  other  class  of  employees 
of  railroads,  or  employees  of  any  person,  firm  or  corporation. 

The  amendment  was  agreed  to. 

The  Chairman:  If  there  are  no  further  amendments  to  Section  11  the  Secretary 
will  read  Section  1. 

Sec.  1.  As  used  in  this  article,  the  term  "corporation"  or  "company"  shall  be 
construed  to  include  all  trusts,  associations  and  joint  stock  companies  having  any 
powers  or  privileges  not  possessed  by  individuals  or  unlimited  partnerships,  but  to  ex- 
clude all  municipal  corporations  or  public  eleemosynary  institutions,  asylums  or  pris- 
ons ow^ned  or  controlled  by  the  State;  the  term  "charter"  shall  be  construed  to  mean 
the  charter  of  incorporation  by  or  under  which  such  corporation  is  formed;  the  term 
"transportation  company"  shall  be  construed  to  include  any  company,  trustee  or  other 
person  owning,  leasing  or  operating  for  hire  a  railroad,  street  railway,  canal,  steamboat 
or  steamship  line,  and  also  any  sleeping  or  parlor  car  company,  freight  car  company, 
car  association  or  car  trust,  express  company,  or  company  trustee  or  person  in  any 
way  engaged  in  business  as  a  common  carrier  over  a  route  acquired  in  whole  or  in 
part  under  right  of  eminent  domain;  the  term  "transmission  company"  shall  be  con- 


2574 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


strued  to  mean  any  company  owning,  leasing  or  operating  for  hire  any  telegraph  oi, 
telephone  line;  the  term  "freight"  shall  be  construed  to  mean  any  property  trans- 
ported, or  received  for  transportation,  by  any  transportation  company;  the  term  "pub- 
lic service  corporation"  shall  be  construed  to  include  all  transportation  and  transmis- 
sion companies,  all  gas,  electric  light,  heat  and  power  companies,  and  all  companies 
authorized  to  exercise  the  right  of  eminent  domain,  or  to  use  or  occupy  any  street, 
alley  or  public  highway  in  a  manner  not  permitted  to  the  general  public;  the  term 
"person"  as  used  in  this  article  shall  be  construed  to  include  individuals,  partner- 
ships and  corporations,  and  to  include  the  plural  as  well  as  the  singular  number;  the 
term  "bond"  shall  include  all  certificates  or  written  evidence  of  indebtedness  issued 
by  any  corporation  and  secured  by  mortgage  or  trust  deed.  The  provisions  of  this  ar- 
ticle shall  alv/ays  be  so  restricted  in  their  application  as  not  to  conflict  with  any  of 
the  provisions  of  the  Federal  Constitution  and  just  as  if  the  necessary  limitations 
upon  their  interpretation  had  been  herein  expressed  in  each  case. 

Mr.  Braxton:  At  the  beginning  of  line  18  I  move  that  this  insertion  be  made: 
The  term  "rate"  shall  be  construed  to  mean  rate  of  charges  for  any  service  rendered 
or  to  be  rendered;  the  terms  "rate,"  "charge,"  and  "regulation"  shall  include  joint 
rates  and  joint  charges  and  joint  regulations,  respectively. 

When  we  first  drew  this  article  we  supposed  and  we  still  think  that  there  can  be 
no  reasonable  doubt  that  "rate"  woula  include  joint  rates.  I  find  that  that  question 
has  been  raised  and,  so  far  as  I  know,  it  is  still  open,  whether  the  power  to  fix  rates  is 
broad  enough  to  include  the  power  to  fix  joint  rates.  I  believe  that  question  is  now 
beiing  litigated  in  Arkansas. 

In  order  to  put  it  beyond  peradventure  we  think  it  best  to  offer  this  amendment. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  In  line  32,  I  move  that  the  word  "include"  be  stricken  out,  and  in 
lieu  thereof  be  inserted  the  words  "construed  to  mean." 

My  reason  for  making  that  change  is  this:  As  it  stands  now,  we  say  that  the  term 
"bond"  shall  include  all  certificates  or  written  evidence  of  indebtedness  issued  by  any 
corporation  and  secured  by  mortgage  or  trust  deed"  ;  but  it  does  not  say  that  it  is 
exclusive.  A  number  of  the  life  insurance  companies  issue  a  kind  of  insurance  in  the 
form  of  a  bond.  It  is  not  intended  that  that  sort  of  a  bond  shall  be  included  in  this 
definition.  In  the  way  it  is  now  placed  it  is  not  exclusive.  To  correct  the  trouble  we 
suggest  that  the  word  "include"  be  stricken  out  and  the  words  "be  construed  to  mean" 
be  inserted,  so  that  it  will  read  "the  term  'bond'  shall  be  construed  to  mean  certificates 
or  written  evidence  of  indebtedness  issued  by  any  corporation  and  secured  by  mortgage 
or  trust  deed." 

The  amendment  was  agreed  to. 

In  line  34  we  find  that  we  have  omitted  the  definition  of  the  term  "frank,"  which 
is  used  in  the  section  on  free  passes.    I  move  that  this  insertion  be  made: 

The  term  "frank"  shall  be  construed  to  mean  any  paper  issued  by  transmission  or 
transportation  companies  entitling  the  holder  to  any  service  from  such  company,  free 
of  charge. 

The  amendment  was  agreed  to. 

Mr.  Claggett  B.  Jones:  On  page  1,  Section  1,  line  13,  I  move  to  strike  out  the  words 
"and  also  any  sleeping  or  parlor  car  company."  My  reason  for  the  amendment  is  that 
sleeping  or  parlor  cars  are  not,  in  any  sense  of  the  word,  any  part  of  a  transportation 
or  transmission  company.  As  I  understand  the  matter,  they  are  entirely  separate  and 
distinct. 

As  a  further  reason  for  the  amendment,  there  are  no  charges  against  these  sleeping 
and  parlor  car  companies  on  account  of  discriminations  made  against  any  particular 
State  or  section.  Their  charges  are  uniform  all  over  the  country.  It  seems  to  me  there 
is  no  reason  why  they  should  be  put  in  as  a  part  of  this  system  of  transportation  and 
transmission  companies.  Furthermore,  it  seems  to  me,  gentlemen  of  the  committee, 
it  is  absolutely  necessary  to  eliminate  this  sleeping  and  parlor  car  system  from  this 


DEBATES  OE  THE  COXSTITI'TIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2575 


report.  The  only  means  these  companies  have  to  protect  themselves  against  parties 
vhom  they  do  not  vrish  to  occupy  their  parlor  cars  or  sleeping  cars  is  hy  their  rate  of 
charges.  For  instance  if  a  negro  applies  for  a  berth  in  a  sleeping  car  the  only  means 
in  the  world  these  people  have  to  protect  themselves  would  be  by  making  the  charges 
so  great  as  to  make  it  almost  impossible  for  them  to  obtain  admission  to  the  sleeping 
car.  Furthermore,  if  at  an:r  time,  anj^  reason  should  arise  why  these  parlor  car  or  sleep- 
ing car  companies  should  be  put  under  the  operation  of  this  law,  on  page  10,  line  99, 
an  amendment  was  offered  to  this  report  by  the  chairman  of  the  committee  to  the  fol- 
lowing effect:  ''Or  that  the  prescribing  and  enforcing  of  rates,  charges  or  classification 
of  traffic  of  public  or  quasi-public  corporations  other  tham  those  hereinbefore  set  forth." 

So  that  the  Legislature,  in  case  any  complaint  should  arise  against  these  companies, 
would  have  the  right  to  prescribe  rules  and  regulations  which  would  compel  these  com- 
panies to  regulate  their  business  in  accordance  with  the  spirit  of  this  report. 

I  hope.  llv.  Chairman,  and  gentlemen  of  the  committee,  that  the  striking  out  of 
these  words  will  meet  with  the  approval  of  a  majority  of  the  Committee  on  Corpora- 
tions, and  v\-ith  the  approval  of  this  Committee  of  the  Whole. 

It  is  suggested  by  my  friend  from  Richmond  (]Mr.  ]\Ieredith)  that  the  common 
carrier  can  protect  itself  by  the  "Jim  Crow"  car  law  in  our  State;  but  these  people, 
not  coming  under  the  operation  of  that  law,  are  absolutely  powerless  to  protect  them- 
selves by  a  similar  method. 

]\Ir.  Braxton:  In  connection  with  this  matter  I  will  say  that  so  far  as  I  am  per- 
sonally concerned,  I  am  indifferent  as  to  whether  the  a.mendment  is  adopted  or  not. 
The  reason  why  the  Pullman  Car  Company  was  included  here  was  not  so  much  because 
of  any  information  we  had  of  present  existing  abuses,  but  merely  in  order  to  arm  this 
commission  with  the  power  to  deal  with  those  abuses  if  they  should  hereafter  arise. 
The  language  of  Section  4  has  been  amended  in  that  particular  because  I  had  an  iiatima- 
tion  that  such  a  motion  as  this  would  be  made,  and  in  view  of  the  possibility  of  its  pass- 
ing I  introduced  the  amendment  to  put  it  beyond  all  doubt  that  the  Legisla-ture,  if  you 
should  now  exclude  the  Pullman  Car  Company,  will  have  the  right  hereafter  to  include 
them  in  the  operation  and  control  of  this  corporation  commission. 

I  will  state  frankly  that,  so  far  as  I  knovc,  I  have  heard  of  no  existing  abuses.  I 
do  not  think  it  would  be  well  to  place  it  so  that  if  those  abuses  should  arise,  the  power 
to  regulate  their  rates  and  to  control  them  could  not  be  conferred  upon  the  commission. 
As  I  understand  the  wording  of  the  report  it  is  in  such  shape  now  that  the  Legislature 
can  extend  the  operation  of  the  commission  to  the  Pullman  Car  Company  hereafter, 
if  it  be  omitted  now.  The  reasons  why  the  Pullman  Car  Companj^  desires  not  to  be 
named,  I  may  frankly  say,  do  not  strike  me  as  a  very  controlling  consideration;  but 
still  if  it  should  be  the  pleasure  of  the  committee  to  omit  them,  I  do  not  think  there 
would  be  any  danger  to  the  measure.  So  far  as  I  am  concerned,  I  do  not  care  whether 
it  passes  or  whether  it  does  not  pass.  I  am  perfectly  willing  to  have  the  house  deal 
Vvith  it  as  it  cho-oses. 

^.iT.  R.  L.  Gordon:  Is  there  any  good  reason  why  this  great  corporation,  known  as 
the  Pullman  Car  Company,  should  be  taken  from  under  the  operation  of  this  commis- 
sion which  controls  all  the  other  corporations  of  the  State? 

Mr.  Braxton:  I  can  only  state  that  I  have  heard  the  reasons  given  by  the  repre- 
sentatives of  that  company-  and,  personally,  it  does  not  seem  to  me  the  company  would 
be  exposed  to  the  dangers  v^■hich  they  seem  to  fear.  That,  however,  is  a  mere  personal 
judgment.  I  do  not  think  the  State  will  be  exposed  to  any  particular  danger  if  they 
are  omitted.  That  is  the  reason  why  I  say  I  am  perfectly  willing  to  leave  it  to  the  good 
judgment  of  this  bodA"  to  either  put  them  in  now  or  to  strike  them  out  and  leave  it  so 
the3'  can  be  put  in  hereafter.  I  do  not  know  that  I  can  say  anything  more  on  this  sub- 
ject. 

3.1r.  Barbour:  I  would  like  to  ask  the  chairman  of  the  committee  if  he  is  certain 
that  the  Pullman  Car  Company  is  a  public  corporation  or  a  qua.si-public  corporation? 


2576 


DEBATES  OE  THE  CONSTITUTIOi^AL  CONVENTIOls^  OE  VIRGINIA. 


Mr.  Braxton:  I  think  so.  I  do  not  think  there  can  be  any  doubt  about  that.  As 
I  understand  it  the  Pullman  Car  Company,  or  any  other  sleeping  car  company  occupies 
a  unique  position.  They  are  neither  a  transportation  company  nor  an  inn-keeper.  They 
occupy  a  position  somewhere  between  these  two,  and  their  liabilities  are  somewhat  dif- 
ferent from  either.  That  it  is  a  public  or  a  quasi-public  corporation  I  think  there  can  be 
no  doubt.  I  think  you  will  find  that  the  courts  have  held  they  are  not  a  transportation 
company.  One  of  the  objections  made  by  the  gentlemen  representing  this  company  was 
that  they  feared  being  defined  as  a  transportation  company  in  this  article  might  change 
their  legal  status.  In  my  judgment,  that  is  not  so,  as  the  definition  is  merely  conven- 
tional and  one  applicable  to  this  particular  article.  The  other  objection  is  that  it  would 
hamper  them  in  their  efforts  to  prevent  clashing  between  the  negroes  and  the  white  people. 

I  cannot  help  thinking  that  they  are  mistaken.  That  is  a  practical  question,  how- 
ever, that  I  cannot  advise  the  body  about.  Every  man  must  judge  for  himself.  I  do 
not  ask  that  this  amendment  be  adopted,  because  I  do  not  think  that  the  reasons  for  it 
are  controlling;  but  I  wish  it  perfectly  understood  that  I  do  not  object  to  its  being 
adopted.    I  neither  ask  for  it  nor  oppose  it. 

Mr.  Cameron:  I  desire  to  ask  the  chairman  of  the  committee,  with  his  permission, 
and  that  of  the  Convention,  if  the  distinction  dravm  in  regard  to  a  sleeping  car  com- 
pany would  not  apply  with  equal  force  to  an  express  company,  which  is  included? 

Mr.  Braxton:  I  think  not,  because  I  think  there  are  abuses  in  the  express  com- 
panies that  have  been  complained  of. 

Mr.  Cameron:  Does  the  gentleman  state,  as' a. fact,  that  there  are  no  abuses  con- 
nected with  the  administration  of  the  Pullman  Palace  Car  Company,  or  merely  that  he 
has  had  none  presented  to  him  as  chairman  of  the  Committee  on  Corporations.  I  think 
investigation  will  develop  the  fact  that  there  are  abuses,  and  that  there  are  discrimina- 
tions. Hov\^  far  they  can  be  reached^by  any  State  autbority  I  do  not  know-  but  I  know 
they  exist.  For  instance,  if  you  travel  from  Richmond  to  Jacksonville  on  any  of  the 
three  roads  they  will  charge  you  $5  for  a  sleeping  car  ticket  for  a  ride  of  about  nine- 
teen hours.  If  you  go  from  here  to  New  York,  leaving  here  at  half-past  six  in  the 
evening  and  arriving  there  about  eight  in  the  morning,  they  charge  you  $2,  while  the 
same  service  in  the  West  will  cost  you  $1.50. 

As  to  the  matter  referred  to  by  my  friend  who  offered  the  amendment,  regarding 
the  exclusion  of  objectionable  people  from  these  cars — I  use  these  cars  a  great  deal,  and 
I  very  rarely  have  been  on  one  of  them  that  that  class  of  people  did  not  have  berths  on 
them.  Whatever  the  charge  may  be,  it  is  not  high  enough  to  exclude  those  of  that 
class,  who  either  by  virtue  of  habit  or  by  virtue  of  circumstances,  desire  to  have  that 
luxury.  To  push  his  idea  to  a  logical  conclusion  would  be  to  say  that  this  company 
should  be  allowed  to  charge  any  excess  rate  against  the  whole  white  population  of  the 
country,  on  the  plea  that  they  meant  to  exclude  negroes  from  the  use  of  their  cars, 
which,  as  a  matter^  of  fact.  They  do  not  do.  If  there  is  any  justice,  if  there  is  any 
reason  for  the  appointment  of  this  commission,  and  for  conferring  upon  it  the  powers 
which  have  been  conferred  upon  it  in  this  report,  it  applies  to  this  company. 

If  there  is  a  monopoly  in  the  United  States  which  disregards  every  right  and  every 
interest  of  the  people  it  is  that  which  operates  these  sleephig  cars  over  the  various 
railroads  of  this  county,  as  dictators  not  only  to  the  travelling  public  but  to  the  rail- 
road corporations  themselves.  The  chairman  of  the  committee  has  mentioned  that 
there  are  various  sleeping  car  companies.  There  is  onl}''  one.  The  Pullman  Car  Com- 
pany has  absorbed  the  V/agner,  and  in  absorbing  it  has  divested  itself  of  the  least  con- 
cern for  the  convenience  and  rights  of  the  travelling  public.  It  exercises  its  own  sweet 
will  without  regard  to  either.  I  do  not  know,  as  I  said  before,  how  far  the  pov^^er  of  the 
State  can  be  extended  to  the  regulation  of  this  company  which  attaches  its  cars  to  the 
regular  trains  of  the  common  carriers  and  passes  through  the  State.  I  am  not  in  favor 
of  striking  out  this  clause  which,  for  the  first  time,  places  the  hand  of  the  State  upon  this 
company,  and  I  hope  that  an  effort  will  be  made  to  regulate  it  so  far  as  the  power  of  the 
State  extends.    I  hope  the  amendment  in  this  regard  may  not  be  considered  favorably. 


DEBATES  OE  TEE  COXSTITUTIOMAL  CONVENTION  OF  VIRGINIA. 


2577 


Mr.  Claggett  B.  Jones:  It  has  not  been  my  misfortune  to  be  situated  similarly  to 
the  gentleman  from  Petersburg,  doubtless  due  to  the  fact  that  I  have  not  used  the  sleep- 
ing cars  so  extensively  as  he  has.  For  myself,  I  do  not  recollect  ever  to  have  seen  a 
negro  on  a  sleeping  car.  I  do  not  doubt  for  an  instant  that  they  go  there,  for  the  gentle- 
man says  so,  and  that  is  sufficient  evidence,  to  my  mind,  that  they  do  go  there;  but  I 
Yyiill  presume  that  those  occasions  are  very  few  and  far  between.  Certainly  I  have  used 
them  time  and  time  again  between  Richmond  and  New  York,  and  on  two  occasions 
between  Baltimore  and  Denver,  and  never  yet  have  I  seen  a  negro  in  one  of  them.  Our 
friend  from  Petersburg  says  he  is  charged  $2  from  Richmond  to  New  York.  It  does  not 
strike  me  that  that  is  an  unusual  or  unjust  charge  for  a  sleeping  car  berth  from  Rich- 
mond to  New  York  under  the  circumstances. 

Mr.  Cameron:  The  gentleman  misunderstands  the  application  of  what  I  said.  You 
leave  here  at  six  and  a  half  in  the  evening  and  get  to  New  York  about  eight  o'clock  in 
the  morning,  and  you  are  charged  $2,  passing  through  a  certain  territory  to  the  north 
of  us.  If  you  leave  Richmond  at  half-past  two  o'clock  for  Jacksonville,  arriving  there  a 
few  minutes  later  in  the  morning,  you  are  charged  $5  for  the  same  accommodation 
through  the  southern  territory. 

Mr.  Claggett  B.  Jones:  I  cannot  see  why  the  argument  is  applicable  in  this  case. 
If  it  were  a  double  company  I  could  well  see  how  his  argument  would  apply.  The  gen- 
tleman has  just  stated  that  this  company  had  a  monopoly,  and  it  is  the  same  company 
that  charges  him  ?2  from  Richmond  to  New  York  that  also  charges  him  $5  from  Rich- 
mond to  Jacksonville.  Therefore  it  seems  to  me  that  his  argument  is  not  applicable  to 
the  amxCndment. 

Mr.  Cameron:  I  hardly  know  what  language  to  use  to  convince  the  gentleman.  If, 
for  the  occupancy  of  the  sleeping  car  for  nearly  the  same  interval  of  time  $2  is  charged 
in  one  direction  and  $5  in  another  direction  it  does  seem  to  me  that  is  a  manifest  dis- 
crimination against  the  section  in  which  the  larger  charge  is  m.ade.  The  fact  that  it  is 
made  by  the  same  company  emphasizes  the  discrimination  and  furnishes  the  means  to 
arrive  at  a  remedy. 

Mr.  Claggett  B.  Jones:  It  seems  to  me,  Mr.  Chairman,  that  if  what  the  gentleman 
says  be  true,  there  is  an  unjust  charge;  but  I  can  well  see  that  there  are  reasons  why 
that  should  be  so.  You  take  the  enormous  trafiic  to  the  North  where  these  cars  are 
constantly  crowded,  and  where  there  is  a  demand  for  a  great  number  of  them  and  con- 
trast it  v/ith  the  limited  travel  of  the  South,  where  there  may  be  but  few  passengers,  as 
in  many  instances  there  are,  and  you  can  well  see  v/hy  this  company  would  have  to 
charge  a  higher  rate  in  one  direction  than  in  another. 

Everybody  knov,^s,  Mr.  Chairman,  that  a  man  who  does  a  very  large  business  can 
do  his  business  at  less  expense  and  at  a  less  percentage  of  profit  than  the  man  v/ho  does 
a  very  small  business.  It  depends  upon  the  circumstances  by  which  the  man  is  sur- 
rounded as  to  what  he  must  charge,  therefore  it  may  be  a  perfectly  justifiable  thing  to 
charge  $5  in  one  case  and  $2  in  the  other. 

I  would  say,  if  the  conditions  were  similar,  that  certainly  $5  for  a  similar  distance 
would  be  very  unjust  and  possibly  a  discrimination  against  one  section  in  favor  of 
another;  but  you  have  to  take  all  the  circumstances  that  surround  these  two  different 
cases  in  order  to  decide  what  would  be  just  and  what  would  be  unjust. 

It  does  seem  to  me,  Mr.  Chairman,  there  would  be  something  in  that  in  which  my 
friend  from  Augusta  (Mr.  Braxton)  seems  to  think  there  is  nothing,  that  if  you  put  this 
sleeping  and  parior  car  corporation  in  this  report  along  with  the  transportation  and 
transmission  companies,  you  run  the  risk  of  denominating  it  as  a  transmission  or  trans- 
portation company.  This  amendment,  as  stated  by  the  gentleman  trom  Augusta,  ex- 
pressly provides  that  vvhile  they  may  be  regulated,  and,  if  there  is  any  complaint  against 
them,  legislation  may  be  enacted  which  will  put  them  on  exactly  the  same  footing  with 
the  other  corporations  which  are  embraced  in  this  report.  Therefore,  it  seems  to  me, 
this  matter  might  be  left  and  should  be  left  to  the  future  action  of  the  Legislature. 


2578 


DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  King  and  Queen  (Mr.  Jones). 

The  amendment  was  rejected,  there  being,  on  a  division,  ayes,  29;  noes,  34. 

The  Chairman:  Are  there  any  further  amendments  to  be  offered?  If  not,  that 
completes  the  consideration  of  the  report. 

Mr.  Braxton:  Mr.  Chairman,  the  only  other  amendments  that  we  have  in  mind  are 
some  mere  verbal  changes,  very  simple  and  very  few  in  number,  not  over  two  or  three 
at  the  outside,  and  they  will  not  affect  the  sense  of  the  matter  at  all.  The  Committee 
on  Corporations  has  not  had  time  to  word  these  amendments  to  their  entire  satisfac- 
tion, and  without  detaining  the  Committee  of  the  Whole  longer,  we  ask  leave  to  make 
the  changes  when  the  report  is  considered  in  the  Convention.  I  therefore  move  that  the 
committee  rise  and  report  the  bill  as  amended  to  the  Convention. 

The  motion  was  agreed  to  and  the  committee  rose.  (Applause.) 

The  President  having  resumed  the  chair,  Mr.  Ayers  reported  that  the  Committee 
of  the  Whole  had  had  under  consideration  the  report  of  the  Committee  on  Corporations, 
and,  having  completed  the  same,  had  directed  him  to  report  it  back  to  the  Convention 
with  amendments. 

PREAMBLE  AND  BILL  OF  RIGHTS. 

On  motion  of  Mr.  Green,  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Preamble 
and  Bill  of  Rights,  Mr.  TurnbuU  in  the  chair. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Albemarle  (Mr.  Lindsay). 

Mr.  Barbour:  Mr.  Chairman,  when  my  remarks  upon  this  resolution,  as  reported 
from  the  committee,  were  interrupted  som-e  weeks  ago,  I  had  undertaken  to  state  to  the 
Committee  of  the  Whole  what  my  personal  connection  was  with  this  resolution;  that  I 
could  not  claim  to  have  originated  the  idea;  that  I  had  no  connection  with  it  whatso- 
ever except  that,  having  been  convinced  that  the  principle  announced  in  it  was  a  just 
and  proper  one  to  be  inserted  in  the  Constitution,  I  had  then  attempted  to  put  it  into 
such  language  as  to  make  it  effective  if  the  committee  and  the  Convention  should  see  fit 
to  coincide  with  my  views  upon  that  matter.  I  was  attempting  to  show  that  the  measure 
as  reported  is  not  a  legislative  enactment,  that  it  is  in  no  sense  a  piece  of  legislation, 
that  so  far  as  its  being  legislative  is  concerned,  it  would  be  totally  ineffective  as  a  piece 
of  legislation,  but  it  merely  fastens  in  the  Constitution  a  principle.  One  element  of 
the  principle  is  neighborhood  government  in  the  matter  of  the  retail  sale  of  liquor.  The 
other  element  of  the  principle  is  that  those  who  desire  to  obtain  a  license  for  the  retail 
sale  of  liquor  must  convince  the  granting  authority  that  the  neighborhood  desires  it. 

I  was  then  interrupted  by  a  query  of  the  gentleman  from  Richmond  (Mr.  Pollard)  as 
to  why  it  was  that  the  committee  had  reported  in  favor  of  requiring  the  signatures  to 
this  petition  of  a  majority  of  the  voters  voting  at  the  last  preceding  election,  instead  of 
requiring  that  it  should  be  signed  by  a  majority  of  the  registered  voters.  I  had  stated 
that  one  reason  for  it  was  that  I  thought  it  was  founded  in  sound  public  policy,  as  it 
would  be  an  inducement  to  a  certain  class  of  citizens  who  do  not  take  that  active  part  in 
political  matters  which  they  should  take,  by  abstaining  from  voting;  that  they  would 
participate  in  elections  if  they  were  required  to  do  so  in  order  to  have  their  votes 
counted  on  this  question  of  granting  licenses.  It  seems  to  me  it  would  be  a  desirable 
result  if  we  could  induce  that  class  of  citizens  to  take  part  in  our  municipal  and  local 
elections.  The  other  reason  was  in  order  to  arrive  at  a  certainty,  so  that  a  definite 
means  might  be  provided  by  which  it  could  be  known  whether  a  majority  of  the  sig- 
natures have  been  obtained  or  not.  Every  one  who  is  familiar  with  registration  books 
in  the  counties  knows  well  that  there  are  sometimes  three  or  four  times  as  many  names 
registered  on  the  registration  books  as  there  are  qualified  voters,  and  it  is  almost  impos- 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2579 


sible  to  pick  out  the  qualified  voters  from  those  who  have  lost  their  right  to  vote;  so  if 
you  take  the  registration  list  as  a  guide,  it  would  require  almost  a  unanimous  petition 
to  obtain  a  license,  whereas,  if  you  take  the  persons  who  voted  in  the  last  preceding 
election  all  that  is  necessary  then  is  that  the  court,  w^hen  passing  on  the  petition, 
should  have  the  poll  books  of  that  election  before  it,  and  it  is  an  easy  and  a  definite 
means  of  ascertaining  w^ho  are  entitled  to  pass  upon  this  question. 

I  v/as  drawn  out  to  state  the  reasons  for  this  provision  somewhat  out  of  the  order 
in  which  I  had  intended  to  explain  it,  but  as  the  inquiry  of  the  gentleman  from  P.ich- 
mond  brought  it  out,  I  thought  it  was  as  well  to  explain  it  at  that  time  as  at  any  other. 

Mr.  Pollard:  The  gentleman  seems  to  have  misunderstood  the  inquiry  I  made.  The 
gentleman  from  Culpeper  has  been  arguing  that  his  provision  insured  majority  rule  in 
each  precinct.  By  my  question  I  intended  to  bring  out  the  fact  that  it  insured  minority 
rule  instead  of  majority  rule;  that  inasmuch  as  you  provided  for  a  majority  of  those 
who  voted  at  the  last  preceding  election,  and  inasmuch  as  the  number  voting  at  the  last 
preceding  election  would  always  be  less  than  the  total  number,  a  majority  of  that  num- 
ber would  always  be  a  minority  of  the  community.  I  used  as  an  illustration  at  that  time 
one  of  the  precincts  here  in  the  city  of  Richmond  which,  with  about  500  votes  in  it,  only 
cast  about  40  votes  on  one  general  election.  In  that  case  21  voters  v/ould  be  able  to  se- 
cure a  bar-room  in  that  precinct,  and  that  would  be  minority  rule.  They  might  be  able 
to  get  a  bar  against  the  protest  of  a  vast  majority  of  the  citizens  of  that  precinct. 

Mr.  Barbour:  It  would  be  a  majority,  Mr.  Chairman,  of  those  who  felt  enough  con- 
cern in  public  matters  to  exercise  the  right  of  suffrage,  which  I  think  is  a  duty  as  well 
as  a  privilege  of  those  who  have  it. 

Mr.  Pollard:  It  would  not  be  a  majority  of  those  who  desired  to  express  themselves 
on  that  particular  question,  but  a  majority  who  voted  on  some  other  question  before. 

Mr.  Barbour:  Just  in  the  same  way,  you  cannot  make  a  man  register.  Your  kid- 
glove  Democracy  here  in  Richmond  might  refuse  to  register,  and  then  in  the  same  way 
you  have  to  prescribe  some  method  in  which  they  can  qualify  themselves  for  the  exer- 
cise of  this  right.  Your  mode  is  to  require  them  to  register.  My  mode  is  to  require 
them  to  register  and  to  exercise  their  right  of  suffrage  in  other  local  matters. 

Mr.  Chairman,  in  discussing  this  matter,  it  is  a  fact  which  is  recognized  by  a  great 
many  friends  of  temperance  reform  that  one  of  the  things  they  have  to  fight  is  a  spirit 
of  intolerance  in  their  ranks.  An  idea  seems  to  have  gotten  out,  in  consequence  of  this 
intolerance  on  the  part  of  some  friends  of  temperance  reform,  that  every  movement 
having  temperance  reform  for  its  object  is  impelled  by  some  spirit  of  intolerance.  I 
ask  the  members  of  this  committee  not  to  be  influenced  by  this  idea,  but  to  look  at  the 
merits  of  the  proposition  as  they  are  presented  to  you.  Do  not  go  off  half-cocked  and 
say  that  you  will  turn  this  down  on  account  of  intolerance.  Look  at  the  proposition 
yourselves.  Exercise  your  own  judgment  upon  it  and  see  if* it  is  a  reasonable,  just  and 
proper  principle;  and  if  it  does  recommend  itself  to  your  judgment,  then  have  the  man- 
hood to  stand  up  and  put  it  in  the  Constitution.  If  it  does  not,  reject  it.  All  we  ask 
here  is  a  reasonable  consideration  of  this  measure. 

No  one,  as  I  understand,  denies  that  saloons  are  a  source  of  great  evil.  I  will' not 
consume  the  time  of  the  committee  by  undertaking  to  argue  that  matter.  It  is  con- 
ceded, but  as  soon  as  you  undertake  to  regulate  them  by  other  means,  without  reference 
to  the  reasonableness  of  the  means  imposed,  w^e  are  met  by  the  idea,  "You  are  narrow- 
minded;  you  are  trying  to  attend  to  other  people's  business." 

If  it  is  an  evil,  and  it  is  conceded  that  saloons  are  an  evil,  is  it  not  as  much  the 
duty  of  this  Convention  to  provide  for  its  regulation  as  to  provide  for  the  regulation  of 
any  other  evil  that  exists  in  the  community  and  in  the  State?  If  the  saloon  is  an  evil, 
is  it  not  just  and  wise  that  before  the  State  permits  a  saloon  to  be  erected  in  any  com- 
munity, that  community  should  be  consulted  upon  that  subject?  Is  it  wise  that  a  sa- 
loon shall  be  put  in  a  neighborhood  over  the  protest  of  the  citizens  of  that  neighborhood? 

Gentlemen,  is  it  just  that  any  saloon  shall  be  erected  in  any  community  against  the 


2580 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


wishes  of  a  majority  of  the  people  of  that  community?  And  if  it  is  an  evil,  as  seems  to- 
be  generally  conceded,  should  not  the  State  go  further  and  say  that  before  it  puts  this 
evil  upon  the  people,  or  this  instrument  which  is  cause  of  so  much  evil,  it  will  assure 
itself  that  a  majority  of  the  people  want  it?  Is  there  anything  unfair  or  unreasonable 
in  that.    And  yet  that  is  all  that  is  provided  for  in  his  resolution. 

Everyone  knows,  Mr.  Chairman,  that  our  present  system  for  the  granting  of  licenses 
is  a  total  failure.  It  has  absolutely  failed,  so  far  as  regulating  the  liquor  traffic  is  con- 
cerned, and  the  only  attempt  which  the  Legislature  has  made  to  regulate  it  is  by  the 
so-called  local  option  law.  The  local  option  law — and  I  want  gentlemen  of  the  commit- 
tee to  pay  special  attention  to  this,  because  it  was  to  a  great  extent  the  ground  upon 
v/hich  the  gentleman  from  Accomac  (Mr.  V\^estcott)  attacked  it — is  not  a  regulative 
measure  at  all.  It  requires  the  community  to  exercise  the  option  between  absolute 
prohibition  and  an  unlimited  number  of  saloons  in  every  community.  There  is  no  mid- 
dle ground.  Local  option,  if  carried,  is  total  privation.  Liquor  cannot  be  sold  in  that 
community  at  all  in  any  quantity  or  under  any  circumstances.  It  is  just  along  those 
lines  that  the  principle  announced  in  these  resolutions  furnishes  relief.  It  is  where 
respectability  comes  in.  It  permits  every  community,  every  neighborhood,  to  regulate 
for  itself,  not  only  the  question  whether  liquor  will  be  sold  at  all  or  not,  but  it  also  goes 
further,  and  permits  the  citizens  and  the  neighborhood  to  say  who  shall  sell  it,  where 
he  shall  sell  it  and  how  many  saloons  there  shall  be  in  the  neighborhood. 

We  have  to  take  conditions  as  they  exist,  and  not  as  we  would  like  to  see  them. 
We  must  recognize  the  necessity  for  liquor  in  a  great  many  cases.  We  must  recognize 
the  fact  that  men  like  liquor,  that  a  great  many  will  have  dt,  and  that  they  cannot  get  it 
under  the  law,  they  will  get  it  against  the  law.  The  best  we  can  do  in  this  matter  is  to 
regulate  it  to  the  very  best  of  our  ability,  to  carry  the  law  as  far  as  we  can  with  safety,  that 
the  public  conscience  and  the  public  sentiment  upon  this  matter  may  be  gradually  educated. 

Local  option,  if  carried,  prohibits  the  sale.  I  may  be  willing  that  a  particular  man 
may  sell  liquor  in  my  community,  because  I  know  from  experience  that  he  is  a  fit  and 
proper  man  for  the  sale  of  liquor,  and  I  know  such  men.  I  have  in  my  mind's  eye  now 
certain  men,  and  if  all  saloon-keepers  were  like  them,  there  would  be  no  trouble  what- 
soever about  this  question  of  the  sale  of  liquor;  but  it  is  because  all  are  not  like  them 
that  the  trouble  arises;  and  this  will  enable  every  community  to  govern  itself  in  that 
matter,  to  pass  upon  the  qualifications  of  each  applicant  for  a  license  as  to  whether 
he  is  a  proper  man  for  the  sale  pf  liquor  and  whether  or  not  the  place  at  which  he  pro- 
poses to  sell  it  is  a  proper  place.  Those  are  matters  in  which  the  people  of  the  com- 
munity are  most  deeply  interested.  It  is  purely  a  matter  of  opinion  at  last,  and  the 
judge  is  not  as  good  an  authority  to  pass  upon  that  question  as  is  the  general  sentiment 
of  any  community;  and  yet  I  have  known  occasions  when  citizens  would  undertake  to  pe- 
tition courts  against  the  granting  of  license  at  certain  places,  and  I  have  seen  the  courts 
entirely  disregard  them  and  throw  them  out  and  refuse  even  to  consider  them,  stating  they 
were  not  holding  a  local  option  election,  but  v/ere  passing  on  this  matter  under  the  law;  that 
the  law  said  the  licenses  should  be  granted  if  the  preponderance  of  the  evidence  showed 
the  place  to  be  a  proper  place  and  the  man  a  proper  man;  and  I  have  never  yet  heard 
of  any  judge  of  any  court  who  could  lay  down  any  rule  by  which  his  successor  could 
determine  whether  the  man  w^as  a  proper  man  or  the  place  a  proper  place. 

Those  are  seme  of  the  reasons  which  induce  us  to  advocate  this  measure  before 
this  committee. 

This  measure  has  been  criticised  to  some  extent.  It  is  first  criticised  as  being  a 
statute,  and  then  it  is  criticized  because  it  is  not  a  statute.  That  is  because  we  do  not 
go  into  particulars  as  to  whether  the  petition  shall  be  sworn  to  or  not,  whether  there 
shall  be  a  local  option  election,  whether  these  lists  shall  be  posted  at  the  courthouses, 
and  so  on.  All  that  is  matter  of  detail,  and  in  no  way  affects  the  principle  we  are  trying 
to  engraft  in  the  Constitution,  which  is  that  no  license  shall  be  granted  without  the 
signatures  of  a  majority  of  the  citizens  v^^ho  have  qualified  themselves  to  pass  upon 
this  question. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOX  OF  YIEGIXIA. 


2581 


The  principle  in  no  way  trenches  upon  the  right  or  power  of  the  Legislature  to  pre- 
scribe additional  conditions.  Gentlemen  say  they  are  unwilling  to  submit  this  matter  to 
petition.  This  resolution  and  this  principle  do  not  inhibit  the  Legislature  from  pre- 
scribing exactly  the  same  conditions  which  they  now  prescribe,  and  the  only  effect  of 
11  will  be  that  whatever  conditions  they  do  prescribe,  or  whatever  conditions  exist  now, 
in  addition  to  those  conditions,  and  as  one  of  them  which  the  Legislature  is  bound  to 
prescribe,  is  this  one  simple  one.  The  Legislature  might  go  further  and  require  it  to  be 
signed  by  three-fourths  before  the  license  should  be  granted.    This  does  not  prohibit  that. 

On  motion  of  Mr.  Lindsay  the  committee  rose  and  the  President  resumed  the  chair. 

AFXeRNOON  SESSION. 

Mr.  Blair:    I  mo\e  that  the  Convention  adjourn  until  to-morrov\^  morning. 

Mr.  Pollard:  I  move  as  a  substitute  for  the  motion  of  the  gentleman  from  Wythe 
(Mr.  Blair)  that  the  chair  be  vacated  until  4  o'clock  this  afternoon. 

The  President:  The  gentleman  from  the  city  of  Fachmond  (Mr.  Pollard)  moves 
that  the  chair  be  vacated  until  4  o'clock  this  afternoon.  All  those  in  favor  of  the 
motion  will  say  aye. 

The  motion  was  agreed  to  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTER  RECESS. 
The  Convention  reassembled  after  the  expiration  of  the  recess. 

PREAMBLE  AMD    BILL   OF  RIGHTS. 

On  motion  of  Mr.  Green  the  Convention  resolved  Itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  the  Preamble 
and  Bill  of  Rights,  Mr.  Turnbull  in  the  chair. 

Mr.  Barbour:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  feel  very  keenlj^ 
the  disadvantages  under  which  I  speak  this  afternoon,  both  in  having  my  remarks  on 
this  subject  cut  into  three  or  four  sections  and  the  disabilities  under  which  I  labor  in 
attempting  to  speak  at  all.  I  am  extremely  hoarse,  and  I  repeat  the  request  which  I 
made  this  morning  that  the  members  will  not  indulge  in  conversation  any  more  than  is 
absolutely  necessary.  It  only  adds  to  the  labor  of  the  speaker,  and  I  hope  the  mem- 
bers will  show  me  this  courtesy. 

At  the  time  I  suspended  my  remarks  I  was  attempting  to  point  out  the  difference 
between  the  principle  which  is  embodied  in  this  resolution,  and  the  local  option  princi- 
ple. As  I  said  then,  local  option  is  prohibition,  absolute  prohibition  of  the  sale  of  in- 
toxicating liquors.  The  principle  embodied  in  this  resolution  is  not  prohibition  at  all. 
It  is  neighborhood  control  and  neighborhood  regulation  of  the  liquor  trafRc.  For  in- 
stance, if  any  neighborhood  or  if  any  county,  or  any  district  in  any  county  votes  in  favor 
of  local  option  that  means  prohibition  of  the  liquor  traffic,  wholesale  or  retail  in  that 
county  or  magisterial  district.  Whereas  under  this  resolution  it  does  not  necessarily 
mean  prohibition  at  all.  It  means  just  as  many  bar-rooms  as  the  people  in  the  commun- 
ity v/ant,  and  it  is  in  behalf  of  the  people  who  want  it.  A  man  might  be  willing  to 
Tiave  liquor  sold  in  his  neighborhood  provided  he  could  get  it  into  the  hands  of  a  man 
whom  he  considers  a  proper  man,  or  provided  he  can  get  it  located  at  a  place  which  he 
considers  a  proper  place.  This  puts  it  witliin  the  power  of  every  citizen  of  every  neigh- 
iDorhood  in  the  State,  outside  of  the  cities,  to  pass  upon  the  question  as  to  the  fitness  of 
the  man  to  sell  liquor  and  as  to  the  fitness  of  the  place  wherein  he  proposes  to  sell  it. 
So  that  it  is  absolutely  within  the  control  of  each  neighborhood  whether  it  will  be  sold 
there  at  all.   If  it  is  sold  then  they  can  say  to  what  extent  it  may  be  sold,  where  it  shall 


2582 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 


be  sold,  and  by  whom  sold.    It  is  absolutely  flexible  in  that  connection.    It  puts  it  ab- 
solutely in  the  control  of  every  community  to  regulate  it  in  that  way.    So,  I  say  it  is  reg- 
ulation of  the  liquor  traffic  as  opposed  to  prohibition  under  the  local  option  laws  now  exist- 
ing in  the  State  of  Virginia.  At  the  same  time  the  resolution  in  no  way  interferes  with  the 
operation  of  local  option.    If  any  district  in  any  county  votes  for  local  option  then  there  is 
nothing  left.   You  might  get  up  a  petition  signed  by  every  man  in  the  county  and  there 
could  be  no  license  granted  there,  because  they  have  said  they  do  not  want  it,  under  any 
conditions,  sold  by  anj^body  or  at  any  place  within  that  district.    The  committee,  when 
the  resolution  was  first  adopted  by  it,  did  not  think  it  interfered  with  local  option  in  any 
way,  but  some  criticism  was  raised  on  that  point,  and  in  order  to  quiet  it,  in  order  that 
this  resolution  might  shov/  on  its  face  that  it  in  no  way  operated  to  interfere  with  the 
exercise  of  the  right  of  local  option,  which  is  total  prohibition,  it  was  expressly  stated, 
and  is  now  expressly  stated  in  the  third  section  of  this  article,  that  it  shall  in  no  way 
interfere  with  the  authority  of  the  Legislature  to  adopt  local  option  laws,  nor  shall  it  in 
any  way  interfere  with  any  local  option  lavv^s  which  are  already  in  force  and  effect.  So 
it  leaves  the  discretion  of  the  Legislature  in  that  respect  absolutely  unhampered.  Under 
the  present  laws,  the  authority  to  pass  upon  the  suitableness  of  the  man  and  the 
propriety  of  the  place  is  left  to  the  judge  who  grants  the  license.    He  Has  that  matter 
to  pass  on.    I  call  the  attention  of  the  committee  to  the  fact,  that  it  is  more  essential, 
under  our  new  judiciary  system  to  have  this  local  control  than  it  is  under  the  old 
county  court  system,  because  under  the  old  system  there  was  a  county  judge  who  lived 
in  each  county,  and  he  at  least  knew  something  about  the  local  conditions.    He,  as  a 
citizen  of  the  county,  could  gather  knowledge  as  to  the  character  of  these  places  and 
the  character  of  the  men.    That  was  a  safeguard.    But  under  our  new  judiciary  system 
where  we  have  only  circuit  court  judges  to  pass  on  this,  matter,  even  that  safeguard 
will  be  thrown  away.    A  judge  will  be  a  stranger  in  a  community  where  he  goes  to 
grant  licenses;  he  will  know  nothing  about  local  conditions,  but  will  have  to  be  gov- 
erned absolutely  by  evidence  introduced  before  him.    You  would  put  upon  any  man 
w^ho  opposed  the  granting  of  a  liquor  license  in  any  community  the  absolute  necessity  of 
attacking  the  character  and  standing  of  an  applicant  for  a  bar-room  license  in  that 
community.   So,  I  say  that  this  system  is  much  more  effective  than  local  option,  because 
it  allows  of  greater  flexibility;  and  in  that  respect  the  operation  of  it  must  necessarily 
be  good.    What  harm  can  be  done,  what  harm  can  result  from  it?    You  hear  men  say 
that  great  harm  will  result  from  the  adoption  of  this  measure..    I  would  like  to  know 
what  harm  can  result  from  it.    In  addition  to  all  the  requirements  now  provided  by 
law  and  in  addition  to  the  evidence  to  be  furnished  to  the  court,  we  say  you  must  also 
furnish  him  with  specific  evidence  of  the  desire  of  the  people  of  the  community  that 
there  shall  be  a  bar-room  in  their  midst,  and  that  they  shall  sign  a  petition  stating  that 
fact  to  the  court.    Certainly  no  harm  can  result  from  this  that  does  not  already  result 
from  the  bar-room,  because  this  is  merely  an  additional  requirement. 

Some  objection  is  raised  to  the  measure  because  cities  have  been  exempted  from  the 
operation  of  the  principle  oT  herem  announced.  I  think  that  was  a  wise  exemption  for 
the  reason  that  the  conditions  in  the  cities  are — and  as  reasonable  men  we  must  recog- 
nize the  fact — materially  different  from  the  conditions  in  the  counties,  not  as  the  gen- 
tleman from  Accomac  said,  on  account  of  police  protection,  but  from  the  very  fact  that 
men  do  not  reside  in  the  districts  where  these  licenses  would  be  granted  in  cities.  A 
man  has  his  place  of  business  in  one  district,  and  he  might  be  acquainted  with  the  fit- 
ness of  men  in  his.  neighborhood  to  conduct  the  liquor  business;  but  his  residence  is  in 
another  district,  and  he,  by  reason  of  that  fact,  has  no  right  to  say  one  way  or  the 
other  as  to  whether  his  next-door  neighbor  is  a  proper  man  to  engage  in  the  liquor  traf- 
fic or  not,  because,  not  being  a  resident  of  the  district  in  which  the  bar-room  is  sought 
to  be  put,  he  is  not  entitled  to  sign  a  petition  either  for  or  against  it. 

Another  objection  which  has  been  raised  to  this  measure  is  that  it  is  totally  unpre- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2583 

cedented  either  in  the  legislative  or  constitutional  history  of  the  country.  I  am  sure  my 
friend  from  Accomac  did  not  know  that  that  statement  was  wrong  or  he  would  not  have 
made  it  but  the  fact  is  that  it  is  a  mistake.  In  the  State  of  Mississippi  they  have  this 
law  now.  It  operates  right  along  with  the  local  option  law.  They  both  work  side  by 
side.  There  is  no  friction  between  them,  and  there  is  no  difficult3^  about  the  enforcement 
of  the  laws.  I  will  call  the  attention  of  this  committee  to  the  fact  which  I  saw  stated 
in  the  Washington  Sentinel,  the  official  organ  of  the  liquor  dealers  of  the  District  of  Co- 
lumbia, that  in  the  State  of  ilississippi,  prohibition  under  those  laws  meant  prohibition 
and  local  option  meant  local  option,  and  that  restriction  of  the  liquor  traffic  under  this 
regulation  meant  restriction;  and  for  that  very  reason,  the  editor  of  that  paper — in  an 
editorial  which  I  read  some  months  ago,  and  which  I  intended  to  read  to  this  Conven- 
tion, but  v"hich  I  have  misplaced — called  on  the  bar-keepers  of  this  State  to  oppose  that 
resolution,  because  he  said  it  meant  exactly  what  it  said,  and  accomplished  the  object  for 
which  it  was  enacted;  that  is,  the  regulation  of  the  liquor  traffic.  He  stated  the  remark- 
able fact  that  there  was  more  liquor  sold  in  prohibition  Maine  than  there  was  in  the 
State  of  Mississippi,  under  the  beneficent  effect  of  this  law.  I  call  my  friend's  attention 
to  the  fact  that  in  the  great  State  of  ]^.Iissouri,  one  of  the  most  progressive  in  the  United 
States,  they  have  a  very  much  more  stringent  principle  than  that  which  is  announced 
here,  and  that  is  that  no  liquor  license  can  be  granted  until  a  petition  for  it  is  signed  by 
a  majority  of  the  tax-paying  voters  of  every  precinct  in  the  State.  That  is  much  more 
stringent  than  the  resolution  which  has  been  reported  from  this  committee — not  voters; 
but  a  majority  of  the  tax-paying  voters  and  the  guardians  of  infants  wno  own  property 
in  the  district.  It  requires  that  there  shall  be  a  majority  of  both  of  those  classes,  of  the 
taxpaying  voters  a.nd  the  guardians  of  infants  who  own  property  in  the  district.  The 
State  of  Texas  has  a  constitutional  provision  requiring  the  Legislature  to  pass  laws 
giving  the  inhabitants  of  every  election  district  in  the  State  opportunity  to  pass  at 
stated  times,  upon  the  question  of  the  sale  or  non-sale  of  intoxicating  liquors.  Ken- 
tucky also  has  a  similar  constitutional  provision,  I  believe.  So  that  objection  does  not 
hold  as  to  this  proA'ision. 

I  novs-  desire  to  read  to  the  committee  an  article  which  appeared  some  time  ago  in 
the  Alexandria  Times,  and  which  is  a  fair  sample  of  the  character  of  objections  which 
are  raised  to  this  provision.  It  says:  "The  Constitutional  Convention  has  done  much 
to  gain  the  ill-will  of  the  people.  It  has  probably  done  much  to  gain  approval,  when  the 
people  come  to  Imow  what  has  been  done;  but  it  will  bring  discredit  upon  its  member- 
ship and  the  Democratic  party  if  it  adopts  the  prohibition  clause  introduced  by  Mr.  Bar- 
bour. The  result  of  such  a  clause  would  be  to  transfer  the  liquor  traffic  from  the  hands 
of  good  and  respectable  law-abiding  men  to  law-breakers,  who,  of  necessity,  would  be  of 
a  disreputable  class.  It  would  rob  the  State  of  thousands  of  dollars  of  revenue,  and, 
while  not  crediting  the  evil  sought  to  be  remedied  would  increase  the  sale  of  impure 
liquor  and  add  to  rather  than  prevent  drunkenness." 

That  is  the  character  of  the  objections  which  are  raised  to  this  resolution.  These 
matters  are  stated  as  facts,  with  not  one  iota  of  argument  back  of  them  to  stibstan- 
tiate  them.  There  is  nothing  in  this  resolution  which  gives  any  foundation  for  such 
criticism,  unless  we  assume  that  the  majority  of  the  voters  in  every  district  in  this 
State  are  corrupt  and  want  bar-rooms  to  be  run  by  such  a  class  of  citizens,  because  a  bar- 
room cannot  be  run  unless  the  bar-keeper  is  endorsed  by  the  majority  of  the  citizens.  If 
v-e  grant  that,  then  our  whole  theory  of  government  is  at  fault,  and  we  have  no  business 
here.  The  people  are  incapable  of  self-government  if  they  are  not  capable  of  passing  on 
the  question  as  to  whether  or  not  a  given  man  shall  operate  a  bar-room  in  their  neigh- 
borhood. T\Tiat  is  there  that  comes  more  closely  home  to  the  individual  than  this  ques 
tion  of  bar-rooms?  What  is  it  that  he  is  better  capable  of  judging  about  and  that  he  will 
be  more  apt  to  exercise  his  judgment  in  regard  to  than  the  right  which  this  provision 
gives  with  a  view  single  to  the  benefit  of  the  community?  This  shows  to  what  extent  these 


2584 


DEBATES  OF  THE  COISTSTITUTIOXAL  CONVENTION"  OF  VIRGINIA. 


people  are  driven  in  their  opposition  to  this  wise  and  just  principle,  in  their  hunt  for 
seme  grounds  upon  tvhich  to  oppose  it. 

Now,  gentlemen,  the  next  question  that  arises  is.  Do  the  people  want  this  provision? 
It  is  unnecessary  to  refer  the  members  of  this  Convention  to  the  large  number  of  peti- 
tions which  have  been  presented  in  reference  to  it.  I  have  seen  it  stated  that  the  num- 
ber of  petitions  which  have  been  presented  to  this  Convention  from  every  nook  and  cor- 
ner of  this  Commonwealth,  is  unprecedented  in  its  history.  I  understand  that  there  are 
about  20,000  voters  in  this  State  who  have,  under  their  own  signatures,  petitioned  you  to 
adopt  this  measure.  Are  their  wishes  worthy  of  consideration?  Are  they  to  be  "v/histled 
down  the  wind  "?  Do  they  know  what  they  are  talking  about?  I  ask  the  different  mem- 
bers of  this  Convention  to  look  at  these  petitions  and  to  especially  look  at  the  petitions 
from  their  own  counties,  and  see  the  character  of  the  men — because  they  must  know 
them — who  are  asking  for  this  measure  at  your  hands.  Are  they  actuated  by  any  selfish 
motives  in  this  matter?  What  is  actuating  them?  What  is  their  objection  in  asking  it? 
is  it  to  accomplish  any  private  revenge,  or  is  it  to  accomplish  any  private  benefit,  or  are 
they  actuated  by  motives  of  public  good  and  patriotism,  and  trying  to  elevate  the  stand- 
ard of  morality  and  manhood  within  your  State?  The  very  character  of  the  names  v/hich 
you  will  find  upon  those  petitions  will  be  a  sufficient  ansv/er  to  that  query. 

I  read  from  a  memorial  addressed  to  this  Convention  by  the  Anti-Saloon  League  on 
this  question.    It  says: 

While  it  is  needless  to  remind  you  of  the  hundreds  of  petitions  which  have  come 
up  to  you  from  all  classes  of  the  Commonwealth  urging  the  insertion  of  this  principle 
in  the  Constitution,  we  may,  perhaps,  be  pardoned  for  calling  3^our  attention  especially 
to  the  significance  of  the  different  kinds  of  petitions  presented  to  you.  While  many  of 
these  petitions  were  signed  by  individual  voters,  numbering  thousands,  some  were 
signed  exclusively  by  firms,  representing  great  commercial  and  manufacturing  interests, 
and  numbers  of  employees;  others  v/ere  signed  by  the  faculties  of  many  of  the  leading 
institutions  of  learning  in  Virginia;  and  others  still  came  from  religious  and  educational 
associations,  seven  of  which  spoke  authoritatively  for  vast  constituencies.  All  of  these 
petitions,  v/hether  signed  by  individuals  or  by  firms,  or  by  colleges,  or  by  associations, 
were  prompted,  not  by  selfish  interests,  but  by  enlightened  patriotism  that  seeks  only 
the  welfare  of  the  whole  State. 

I  ask  each  on©  of  you  to  ask  yourself  the  question  whether  or  not  that  statement, 
contained  in  the  mxemorial,  is  true  or  not?  What  is  the  motive  of  the  men  v/ho  are  ask- 
ing this  measure  at  your  hands?  We  all  know,  in  the-  bottom  of  our  hearts,  that  the 
statement  is  true  and  correct.  This  question  has  been  raised,  Mr.  Chairman,  and  it  has 
been  raised  by  people  who  are  not  going  to  cease  their  agitation  of  this  question  until 
it  is  settled.  It  has  got  to  be  settled.  .  The  question  and  the  only  question  which  con- 
fronts us  now  is  whether  or  not  v/e  are  going  to  aid  them  to  settle  it  or  are  going  to  say 
to  them,  we  will  not  aid  and  not  permit  them  to  settle  it  just  yet,  because  chat  is  as  far 
as  we  can  go.  No  matter  what  your  vote  may  be  on  this  question  I  v/ill  tell  you  that  the 
people  of  Virginia  are  going  to  have  this  matter  settled  before  they  are  done  with  it. 

I  will  read  again  from  the  same  memorial  along  these  lines.    It  says: 

Here  undoubtedly  is  an  instance  verifying  the  v/isdom  of  the  words  of  a  president 
of  the  United  States  whom  v/e  all  revere:  Real  issues  cannot  be  manufactured  by  the 
leaders  of  political  parties,  and  real  ones  cannot  be  evaded  by  political  parties."  The 
real  political  issues  of  the  day  declare  themselves,  and  come  out  of  the  depths  of  that 
deep  which  we  call  public  opinion.  In  a  democracy  it  is  neither  safe  nor  right  to  go 
against  public  opinion,  when  that  public  opinion  is  enlightened,  rational,  honest, 
practically  unanimous,  and  prompted  only  by  the  common  weal.  Conscience  has  hardly 
m^ore  claim  upon  the  individual  than  such  public  opinion  has  upon  the  Democratic 
statesman,  particularly  so  when  his  own  private  judgment  cannot  but  approve  the  wis- 
dom of  the  measure  desired  by  the  people.  For  who  among  you  will  challenge  the 
naked  principle  that  a  voter  has  a  right  to  say  whether  or  not  a  saloon  shall  be  planted 
near  his  home? 


DEBATES  OF  THE  COXSTITUTIONAL  CONVEXTIOJs^  OF  VIRGIXIA. 


2585 


Are  we,  by  voting  down  this  provision,  going  to  keep  this  matter  alive,  as  a  political 
question  in  Virginia,  as.  you  surely  w^ill  do;  or  are  you  going  to  refer  the  whole  matter  to 
the  people  themselves  for  direct  and  immediate  settlement,  without  any  unsettling  of 
political  alliances  or  political  affiliations  in  Virginia?  That  is  all  that  this  resolution 
does.  It  does  not  fasten  this  principle  in  the  Constitution.  It  merely  says  that  this 
single  question  shall  be  submitted  to  the  people  of  Virginia  directly.  The  committee  has 
not'  recorhmended  to  the  people  of  Virginia  that  this  principle  should  be  fastened  in  the 
Constitution.  We  simply  say  that  we  put  it  in  proper  form  so  that,  if  adopted,  it  will 
be  legal  and  effective.  We  refer  the  whole  matter  back  to  our  principals  for  their  ratifi- 
cation or  for  their  rejection,  unincumbered  by  any  other  question. 

If  you  are  considering  only  the  good  of  the  Democratic  party  and  are  seeking  noth- 
ing higher  than  that,  I  appeal  to  you  to  know  whether  or  not  this  is  not  a  wise  course 
simply  from  that  standpoint?  Let  the  people  pass  on  this  question  directly.  If  they  do 
not  want  it  they  will  vote  it  down.  If  they  do  want  it  they  are  entitled  to  have  it.  Is 
there  any  gentleman  on  the  floor  of  this  Convention  that  will  deny  the  proposition  that 
if  the  people  of  Virginia  want  this  measure  they  are  entitled  to  it?  This  resolution,  as 
reported,  presents  that  question  directly  to  them,  unincumbered  by  any  consideration — 
just  the  narrow  question,  do  you  want  this  provision  in  your  Constitution  or  not?  I  tell 
you  it  is  the  only  way  to  get  rid  'of  this  question,  to  get  rid  of  it  in  a  way  that  you 
wall  know  vvill  be  satisfactory  to  the  people,  because  there  will  be  no  appeal  from  that 
decision.  You  will  knov/  v/hen  it  is  made  that  it  is  a  measure  they  want,  because  it  can 
only  be  adopted  by  their  vote.  Do  we  want  to  throw  it  out  as  a  matter  to  be  referred 
to  the  members  of  the  House  of  Delegates.  Should  the  people  be  compelled  to  turn 
down  a  good  man  for  the  House  of  Delegates  merely  because  his  views  do  not  coincide 
with  their  views  on  this  question? 

Mr.  James  W.  Gordon:  Is  it  the  idea  of  the  committee  that  this  provision,  if 
adopted,  should  be  submitted  separately  to  the  vote  of  the  people,  no  matter  vv^hat  shall 
he  done  v/ith  the  body  of  the  Constitution? 

Mr.  Barbour:    Yes,  sir.    This  is  the  report  of  the  committee  on  this  subject: 

In  view  of  the  widespread  interest  which  the  discussion  of  the  subject,  and  its  con- 
f^ideration  by  the  committee  have  excited  in  the  State  since  the  assembling  of  this  Con- 
vention, and  of  the  fact  that  it  received  but  little  or  no  public  discussion  prior  thereto, 
in  order  to  insure  that  this  principle  may  not  become  a  part  of  the  Constitution  against 
the  wishes  of  people  who  will  be  affected  by  it,  and  that  the  people  may  express  their 
wishes  on  this  subject  unhampered  by  other  provisions  of  the  Constitution  or  any  other 
considerations  of  any  kind,  it  is  recommended  that  this  clause  be  submitted  separately 
to  voters  of  the  territory  affected  by  its  provisions,  who  may  be  qualified  to  vote  under 
the  new  Constitution,  either  at  the  same  time  that  the  new  Constitution  is  submitted  for 
ratification,  or  at  the  first  election  held  under  its  provisions. 

There  was  some  dissatisfaction  v/ith  merely  that  report  on  the  subject,  without  the 
same  idea  being  embodied  in  the  resolution.  In  order  to  meet  that  objection,  the  com- 
mittee have  recommended,  as  a  fourth  clause  to  this  article,  the  following  section: 

The  above  provisions  shall  not  go  into  effect  nor  become  a  part  of  this  Constitution 
until  and  except  the  same  be  submitted  to  the  qualified  voters  under  this  Constitution 
residing  v^ithin  the  limits  of  the  State  affected  hereby,  at  a  separate  election  held  for 
the  purpose,  as  hereinafter  provided  in  the  final  schedule,  and  be  ratified  by  a  majority 
of  those  voting  at  said  election. 

W^hat  objection  can  there  be  to  that  provision?  Is  it  not  the  very  essence  of  Demo- 
cracy? Does  it  not  provide  for  a  settlement  of  this  vexed  question,  and  for  its  final  set- 
tlement, and  for  a  settlement  in  a  way  that  we  know  will  be  satisfactory  to  the  people 
w^e  represent?  Because  we  do  not  undertake  to  pass  upon  it  ourselves,  but  refer  the 
whole  matter  back  to  them. 

These  20,000  voters  who  have  asked  for  this  petition  have  certainly  made  out  a 
prima  facie  case  of  a  desire  on  the  part  of  the  public  for  the  enactment  of  this  clause. 

1G3— Const.  Deb. 


2586 


DEBATES  OF  TPIB  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


They  have  certainly  presented  a  case  sufficient  to  justify  the  Convention  in  providing 
that  it  shall  be  submitted  to  the  voters.  Whatever  may  be  our  individual  opinions  on  it 
as  citizens  as  to  its  v/isdom,  it  is  our  solemn  duty  when  this  resolution  has,  been  asked 
for  by  20,000  voters  of  the  State  of  Virginia,  and  by  a  class  of  voters  which  will  rank 
with  any  that  have  ever  asked  for  the  adoption  of  any  provision  into  the  Constitution,  to 
submit  this  matter  to  them,  and  it  is  the  only  way  it  can  be  settled,  and  finally  settled. 

Mr.  Lindsay:  Has  there  been  any  petition  sent  to  this  body  advocating  the  resolu- 
tion in  its  present  form? 

Mr,  Barbour  I  do  not  know  that  there  has,  in  the  present  form,  sir.  As  I  attempted 
to  point  out  in  the  very  start,  the  principle  embodied  in  this  resolution  is  the  same  as 
that  embodied  in  the  clause  of  the  Quarles  resolution  that  was  asked  for.  It  is  the  peti- 
tion idea  that  the  majority  vv^ant.  All  this  committee  has  done  is  to  make  that  idea 
legally  effective  in  the  event  it  is  adopted.  Tlie  resolution,  as  originally  presented,  was 
not  drawn,  I  suppose,  by  a  lawyer.  It  was  drawn  inartistically.  Any  ordinary  man 
could  understand  the  meaning  of  it,  but  still  it  was  drawn  in  such  a  way  that  it  might  be 
construed  out. 

Mr.  Pollard:  You  say  the  written  request  must  be  signed  by  a  majority  in  number 
of  the  legally  qualified  and  registered  voters,  registered  in  the  town  or  in  the  precinct 
of  the  county  wherein  such  liquors  are  intended  to  be  sold,  and  who  actually  voted  in  the 
last  preceding  regular  election? 

Do  you  mean  that  the  same  men  who  voted  in  the  preceding  election  must  be  the 
identical  men  whose  names  are  on  the  petition? 

Mr.  Barbour:  I  think  that  will  be  the  effect  of  that  language,  sir.  That  is  a  mere 
detail,  however.  The  committee  does  not  thing  that  is  a  matter  of  principle,  and  if  the 
Convention  thinks  it  wise  to  amend  it  in  that  particular,  it  is  all  right.  I  think  the 
certainty  which  is  accomplished  under  the  resolution  as  drawn  is  better  than  the  uncer- 
tainty which  w^ill  result  from  having  your  registration  lists,  which  are  unpurged.  As 
we  know,  they  go  sometimes  for  ten  years  without  being  purged,  and  it  would  be  a 
question  of  great  difficulty  and  doubt  to  ascertain  just  how  many  of  those  people  were 
qualified  voters  at  a  given  j:ime,  and  how  many  were  out.  I  understand  there  is  a  law, 
embodying  some  features  of  this,  now  in  effect  in  one  district  in  the  county  of  Rappa- 
hannock in  the  State  of  Virginia,  and  I  have  understood  that  feature  of  it  has  given 
some  trouble  for  the  ascertainment  of  who  were  the  qualified  voters. 

I  have  undertaken,  Mr.  Chairman  and  gentlemen  of  the  committee,  to  state,  in  my 
feeble  Vv^ay,  to  the  best  of  my  ability,  the  reasons  which  have  induced  me  to  think  this, 
is  a  wise  provision.  I  think  this  is  a  matter  upon  which  each  member  of  this  commit- 
tee should,  and  I  have  no  doubt  they  will,  exercise  their  sound  judgment.  If  it  recom- 
mends itself  to  your  wisdom,  then  vote  for  it.  If  it  does  not,  then  vote  against  it;  but  I 
will  tell  you  that  the  only  way  in  which  to  get  this  matter  settled  is  by  some  such  pro- 
vision as  the  committee  has  reported;  and  especially  do  I  urge  you  not  to  flout  these 
people  by  such  provisions  as  that  offered  here  by  the  gentleman  from  Albemarle  (Mr. 
Lindsay).  Do  not  give  these  people  a  slap  in  the  face.  If  their  proposition  is  not  just 
and  reasonable,  vote  it  down,  but  do  not  give  them  any  such  milk  and  water  stuff  as 
has  been  introduced  here  by  the  gentleman  from  Albemarle,  which  nobody  wants,  and 
v/hich  these  people  who  have  sent  up  these  petitions  will  resent.    They  do  not  want  it. 

I  thank  you,  gentlemen,  for  the  attention  you  have  given  me. 

Mr.  Quarles:  Mr.  Chairman,  I  deem  it  proper  that  I  should  explain  my  position 
on  the  measure  now  pending  before  this  committee. 

In  the  early  part  of  the  session  of  the  Convention,  in  June,  I  think  it  was,  I  offered 
a  resolution  relating  to  the  sale  of  intoxicating  liquors,  vmich  was  referred  to  the  Legis- 
lative Committee,  of  which  I  am  a  member.  This  resolution  was  introduced  by  me  at 
the  request  of  one  of  my  constituents,  which  fact  was  stated  at  the  time.  I  was  not 
the  author  of  it,  nor  did  I  assume  any  responsibility  for  it,  which  was  clearly  indi- 
cated by  the  manner  in  which  it  was  offered. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


258r 


The  Legislative  Committee,  soon  after  this  reference,  considered  the  resolution  and 
indefinitely  postponed  it.  Shortly  subsequent  to  this,  the  gentleman  from  Culpeper  (Mr. 
Barbour)  offered  a  resolution  on  the  same  subject,  which  was  referred  to  the  Committee 
on  the  Preamble  and  Bill  of  Rights,  and  that  committee  favorably  reported  the  resolu- 
tion with  some  modifications  in  the  shape  of  the  ordinance  we  have  under  consideration. 
These  two  resolutions  as  originally  introduced  contained  as  their  principal  feature  the 
provision,  that  no  license  should  be  granted  to  sell  ardent  spirits  except  upon  the  written 
request  of  majority  of  the  registered  voters  of  the  precinct  in  which  it  is  proposed  to 
locate  the  business.  These  resolutions  differ  in  this  respect  widely  and  materially  from 
the  ordinance  we  are  considering.  They  apply  alike  to  the  cities  and  counties,  whereas 
this  ordinance  does  not  apply  to  the  cities,  where  most  of  the  whiskey  is  sold  and  most 
of  the  evil  resulting  therefrom  exists,  but  is  confined  to  certain'  counties  and  towns 
where  comparatively  but  little  whiskey  is  sold.  They  require,  as  I  have  stated,  the  sig- 
natures of  a  majority  of  the  registered  voters  to  a  petition,  in  order  for  a  license  to  be 
granted,  whereas  this  ordinan^ce  provides  for  the  signature  to  a  petition  of  a  majority, 
in  number,  of  the  registered  voters  who  actually  voted.  It  will  be  noted  that  the  peti- 
tions that  have  flooded  this  Convention,  did  not  pray  for  the  adoption  of  this  ordinance, 
but  for  the  adoption  of  the  Barbour-Quarles  resolution,  by  which  name  the  two  resolu- 
tions offered  are  known. 

Mr.  Barbour:  Will  you  vote  for  the  resolution  with  the  amendment  in  it,  which 
you  have  indicated? 

Mr.  Quarles:    I  will  answer  the  question  of  the  gentleman  in  a  minute. 

Mr.  Chairman,  at  a  meeting  of  the  Legislative  Committee  held  last  July  to  consider 
the  first  resolution  offered,  I  then  voted  against  that  resolution  on  the  ground  that  it 
related  to  a  matter  that  should  not  be  dealt  with  by  a  Constitutional  Convention,  but 
by  the  Legislature,  only;  and  I  say  to  the  gentleman  (Mr.  Barbour)  that  after  maturely 
considering  the  question  from  that  time  to  the  present,  I  am  confirmed  in  my  conviction 
that  I  acted  rightly  in  casting  my  vote  as  I  did  at  that  committee  meeting.  But,  sir, 
this  ordinance,  in  my  opinion,  is  more  objectionable  than  the  Barbour-Quaiies  resolu- 
tion, as  I  shall  show. 

Now,  M,r.  Chairman,  w^e  should  not  lose  sight  of  the  fact  that  we  are  engaged  in  the 
arduous  and  responsible  task  of  making  a  Constitution,  and  not  in  enacting  statutes; 
that  there  is  a  distinction  between  the  functions  of  a  Constitutional  Convention  and  the 
functions  of  a  Legislature.  In  the  structure  of  a  republican  government,  a  written  Con- 
stitution is  absolutely  essential,  and  its  value  and  worth  are  largely  in  proportion  to  its 
stability  and  permanence.  Did  we  not  have  a  written  Constitution  binding  the  agents  of 
the  people  and  the  people  themselves,  we  v/ould  have  no  permanent  protection  to  the 
great  and  essential  rights  of  the  people.  The  weakness  of  an  unwritten  Constitution  is 
said  to  lie  in  the  fact  that  it  is  subject  to  perpetual  change.  In  England  her  Constitution 
may  be  changed  by  a  simple  statute;  but  American  Constitutions  when  made  to  conform 
to  the  spirit  and  genius  of  our  institutions,  safeguard  and  protect  securely  and  con- 
stantly the  great  rights  of  the  people  without  change,  except  by  slow,  deliberate  and 
formal  processes,  which  add  dignity,  firmness  and  stability  to  constitutional  lav/.  A  stat- 
ute law  is  properly  made  by  a  Legislature,  whose  sessions  are  frequent,  and  it  is,  there- 
fore, frequently  changed.  It  is  manifest,  then,  that  such  matters  as  are  not  liable  to  fre- 
quent change,  but  should  possess  some  degree  of  permanence  and  stability,  should  be  put 
into  a  Constitution;  and  those  as  to  which  the  policy  of  the  people  may  change  or  which 
are  being  experimented  with  belong  to  the  Legislature,  where  the  laws  affecting  them 
may  be  altered,  as  conditions  may  change  and  require.  It  would  be  unfortunate,  indeed, 
if  we,  disregarding  the  distinction  between  the  functions  of  a  Constitutional  Convention 
and  the  functions  of  a  Legislature,  should  undertake  to  do  the  work  of  a  Legislature. 

Judge  Cooley,  in  his  w^ork  on  Constitutional  Limitations,  states  the  things,  that  one 
would  expect  to  find  in  a  Constitution,  which  are:  first,  a  general  framework  of  govern- 
ment to  be  designed,  under  which  the  sovereignty  of  the  people  is  to  be  exercised  by 


2588 


DEBATES  OF  THE  COIstSTITUTIOIvTAL  CONVENTIOl^  OF  VIRGINIA. 


representatives  chosen  for  the  purpose;  second,  the  qualifications  of  a  voter;  third,  the 
checks  and  balances  of  government;  fourth,  the  recognition  of  self-government;  and 
fifth,  a  declaration  of  the  rights  for  the  protection  of  individuals  and  minorities,  which 
he  enumerates.  Then  he  concludes  with  this  language,  to  which  I  wish  to  call  especial 
attention: 

Manj^  other  things  are  found  in  these  charters  of  government;  but  since,  while  they 
continue  in  force,  they  are  to  remain  absolute  and  unchangeable  rules  of  action  and 
decision,  it  is  obvious  that  they  should  not  be  made  to  embrace  within  their  iron  grasp 
those  subjects  in  regard  to  which  the  policy  or  interest  of  the  State  or  of  Its  people  vary 
f]om  time  to  time,  and  which  are,  therefore,  more  properly  left  to  the  control  of  the 
Legislature,  which  can  more  easily  and  speedily  make  the  required  changes. 

He  states,  first,  what  you  would  expect  to  find  in  a  Constitution,  and  he  then  tells 
you  what  should  be  left  out  of  a  Constitution.  This  furnishes  us  a  safe  guide  to  a 
proper  conclusion.  Is  the  subject  that  we  have  underconsideration  to  be  found  among 
the  things  mentioned  by  this  learned  author  as  proper  to  be  put  into  a  Constitution? 
It  is  not  found  there.  Is  the  liquor  question  a  subject  in  respect  to  which  the  policy  of 
the  State,  or  its  people,  may  change  from  time  to  time?  It  is.  Then  the  test  furnished 
us  by  Judge  Cooley  excludes  it  from  the  Constitution  and  our  duty  is  to  keep  it  out. 

I  wish  to  read  you  also  what  Mr.  "Woodrow  Wilson  says  in  his  work,  "The  State," 
on  this  question.  He  is  professor  of  Jurisprudence  and  Politics  at  Princeton  University, 
and  is  an  eminent  scholar  and  a  profound  writer  on  governmental  questions.  He  is  a 
Virginian  by  birth,  and  I  am  proud  to  say  a  native  of  my  own  city.    He  says: 

One  of  the  most  characteristic  circumstances  connected  with  our  State  law  is  the 
threatened  loss  of  all  real  distinction  between  constitutional  and  ordinary  law.  Consti- 
tutions are  in  their  proper  nature  bodies  of  law  by  which  government  is  constituted 
by  which,  that  is,  government  is  given  its  organization  and  functions.  Private  law,  the 
regulation  of  the  relations  of  citizens  to  each  other  in  their  private  capacities,  does  not 
fall  within  their  legitimate  province.  This  principle  is  fully  recognized  in  the  con- 
struction of  our  Federal  Constitution,  which  is  strong  and  flexible,  chiefly  because  of 
its  great,  its  admirable  simplicity  and  its  strictly  constitutional  scope.  But  constitution 
making  in  the  States,  especially  in  the  newer  States,  has  proceeded  upon  no  such  idea. 
Not  only  do  the  Constitutions  of  the  States  go  very  much  more  into  detail  in  their  pre- 
scriptions touching  the  organization  of  the  government;  they  go  far  beyond  organic 
provisions  and  undertake  the  ordinary,  but  very  different,  work  of  legislative  enactment. 
They  commonly  embody  regulations,  for  example,  with  reference  to  the  management  of 
State  property,  such  as  canals  and  roads,  and  for  the  detailed  administration  of  the  State 
debt;  they  determine  the  amounts  and  sorts  of  property  which  are  to  be  exempt  from 
seizure  for  private  debt;  they  formulate  sumptuary  laivs  such  as  those  forbidding  the 
sale  of  intoxicating  liquors;  at  a  score  of  points  they  enter  without  hesitation  or 
restraint  the  field  usually  reserved  for  the  action  of  legislative  bodies. 

Mr.  Wilson  then  makes  this  comment; 

The  objections  to  the  practice  are  as  obvious  as  they  are  weighty.  General  outlines 
of  organization,  such  as  the  Constitution  of  the  United  States  contains,  may  be  made  to 
stand  without  essential  alteration  for  long  periods  together;  but,  in  proportion  as  Consti- 
tutions make  provision  for  interests  whose  aspects  must  change  from  time  to  time  with 
changing  circumstances,  they  enter  the  domain  of  such  law  as  must  be  subject  to  con- 
stant modification  and  adaptation.  Not  only  must  the  distinctions  between  constitutional 
and  ordinary  law  hitherto  recognized  and  valued  tend  to  be  fatally  obscured,  but  the 
m_uch  to  be  desired  stability  of  constitutional  provisions  must  in  great  part  be  sacrificed. 
Those  constitutions  which  contain  the  largest  amount  of  extraneous  matter,  which  does 
not  concern  at  all  the  structure  or  functions  of  government,  but  only  private  or  particu- 
lar interests,  must,  of  course,  however  carefully  drawn,  prove  subject  to  most  frequent 
change.  In  some  of  our  States,  accordingly,  constitutions  have  been  as  often  changed 
as  important  statutes.  The  danger  is  that  constitution-making  will  become  with  us 
only  a  cumbrous  mode  of  legislation. 

This  is  what  this  distinguished  author  has  to  say  about  putting  extraneous  matters 
into  a  Constitution.    If  we  embrace  in  the  Constitution  subjects  as  to  which  the  policy 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2oS9 


01  the  State  may  cliange  from  time  to  time,,  ^re.  of  course,  sliould  make  easy  and  con- 
Tenient  tlie  method  of  amending  the  Constitution,  so  that  the  provisions  of  the  Consti- 
tution might  be  subject  to  continual  change.  In  such  case  there  would  be  no  pennanence 
in  the  security  to  the  rights  of  the  people  that  are  properly  protected  by  the  Constitu- 
tion, and  the  entire  govemment  would  necessarily  be  weakened.  It  would  be  a  blow  ax 
the  foundation  of  free  government. 

Xow,  Mr.  Chairman,  these  learned  writers  on  constitutional  law  agree  as  to  the 
doctrine  that  should  te  observed  in  making  a  Constitution.  They  in  substance  declare 
that  a  Constitution  should  not  contain  any  subject  in  respect  to  which  there  may  be 
frequent  changes  in  the  policy  of  the  State  or  of  its  people.  I  have  said  that,  in  my 
opinion,  the  liquor  question  is  a  subject  of  that  character.  Judge  Cooley  in  defining 
how  a  Constitution  should  be  constructed,  in  effect,  excludes  it:  and  Mr.  TVoodrow  Wil- 
son expressly  does  so.  It  would  seem  that  these  authorities  ought  to  determine  our 
course.  Tv'e  are  novices  in  Constitution-making,  and  can  surely  profit  much  from  the 
teachings  of  these  great  students  of  the  science  of  government. 

Mr,  Chairman,  if  there  is  any  one  thing  that  is  unsettled  and  undetermined  in  the 
minds  of  the  American  people  and  the  people  of  the  word,  it  is,  how  to  manage  and  con- 
trol the  liquor  traffic.  There  are  those  who  believe  that  this  business  should  be  treated 
as  any  other  business — that  it  is  a  legitimate  and  proper  business  and  should  not  be 
discriminated  against.  And  there  are  those  who  would  think  it  a  crime  for  this  Con- 
vention to  incorporate  for  the  first  time  into  our  organic  law  a  provision  recognizing  the 
sale  of  whiskey  as  a  proper  business  for  any  one  to  follow, — they  do  not  even  want  to 
regulate  it,  as  the  gentleman  from  Culpeper  (Mr.  Barbour)  does,  but  wish  to  destroy  it. 
T  desire  to  read  to  you  a  line  from  an  address  made  by  one  of  the  distinguished  leaders 
in  the  temperance  movement  in  this  State,  to  show  what  he  thinks  on  this  question,  and 
how  far  he  and  my  friend  (Mr.  Barbour)  are  apart.  The  address  was  made  recently 
before  the  Anti-Saloon  League.    He  says: 

What  is  our  demand?    It  is  that  the  State  shall  not  legalize,  but  prohibit  saloons. 

They  do  not  desire  to  legalize  the  sale  of  whiskey,  but  to  prevent  it.  And  then, 
there  are  those  who  believe  in  the  local  option  law  as  the  true  method  of  dealing  with 
this  business.  And  there  are  those  who  believe  in  dispensary  laws,  and  still  there  are 
those  who  believe  in  this  new  untried  plan  embodied  in  the  measure  under  discussion. 
Mr.  Chairman,  there  is  great  doubt  and  uncertainty  in  the  minds  of  the  people  upon  this 
subject.  The  -measure  itself  carried  upon  its  face  doubt  and  uncertainty  as  to  its  effi- 
ciency. It  excepts  the  cities,  where  the  bulk  of  the  liquor  business  is  done;  and  excepts 
also  the  towns  and  counties  where  whiskey  is  sold  under  the  local  option  law.  'Why  is 
this  ? 

Mr.  Barbour:  Is  there  any  town  wherein  whiskey  is  sold  under  the  local  option 
law? 

Mr.  Quarles:    Yes,  sir. 

Mr.  Barbour:  This  does  not  except  any  of  them.  It  does  not  interfere  with  the 
operation  of  the  local  option  law. 

Mr.  Quarles:  The  local  option  law  provides,  that  there  shall  be  held  an  election, 
when  properly  petitioned  for,  and  that  a  vote  shall  be  taken  whether  the  people  shall 
have  license  or  not  have  it.  They  vote  ■"For  licensing  the  sale  of  intoxicating  liquors," 
or  "Against  licensing  the  sale  of  intoxicating  liquors."  If  the  election  is  carried  for 
license,  then  license  to  sell  liquors  must  be  granted  under  certain  conditions,  and  an- 
other local  option  election  cannot  be  held  within  two  years.  So  the  local  option  law, 
after  an  election  is  held,  which  results  in  favor  of  license,  authorizes  the  granting  of 
license  for  two  years,  and  until  another  election  is  held. 

^Iv.  Barbour:  I  desire  to  put  my  friend  right.  Those  communities  are  not  excepted 
from   the   operation  of   this  provision. 


2590  DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Quarles:  That  is  the  gentleman's  interpretation  of  it;  but  it  is  expressly  de- 
clared in  this  measure,  that  it  shall  not  interfere  with  the  local  option  law  in  any  respect. 

Mr.  Barbour:  The  gentleman  does  not  contend  that  where  a  local  option  election 
3ias  been  held  and  local  option  defeated,  that  that  does  away  with  the  necessity  of  obtain- 
-ing  a  license? 

Mr.  Quarles:  No,  I  do  not.  But  the  law  says  after  such  an  election  is  held,  if  it  goes 
for  a  license,  a  license  may  be  granted,  which  means  shall  be  granted  when  the  applicant 
is  shown  to  be  fit  and  the  place  suitable.  I  insist  that  the  local  option  law  is  in  operation 
there  for  two  years  and  until  another  election  is  held;  for  it  is  the  operation  of  the  local 
option  law  that  prevents  the  holding  of  another  election  before  the  expiration  of  two 
years. 

Mr.  Barbour:  As  I  understand  it,  the  local  option  law  is,  that  liquor  should  not  be 
sold,  so  that  if  the  election  is  not  carried,  the  local  option  law  is  not  in  effect, 

Mr.  Quarles:  The  local  law  is  that  liquor  shall  not  be  sold  if  a  majority  of  the 
voters  at  an  election  so  decide;  and  that  it  may  be  sold  if  the  majority  at  an  election 
vote  for  license.  The  question  at  issue  is,  practically,  whether  whiskey  may  be  licensed 
to  be  sold  or  shall  not  be  licensed  to  be  sold  and  if  the  decision  is  that  it  may  be  licensed 
to  be  sold,  the  law  expressly  declares  that  the  decision  shall  be  carried  into  effect.  Of 
course  license  must  be  first  granted,  for  the  local  option  law  says  so;  and  it  cannot  be 
granted  until  it  is  proven  that  the  applicant  is  fit  and  the  place  is  suitable,  and,  this  being 
done,  the  court  must  grant  the  license.  And  I  repeat  that  the  liquor  dealers  in  a  district 
where  license  has  carried  are  protected  by  the  local  option  law  for  two  years,  to  the 
extent;  that  they  cannot  be  deprived  of  the  right  to  obtain  license  and  sell  whiskey  dur- 
ing that  time,  and  this  is  so,  because  the  local  option  law  is  in  operation  there. 

Mr,  Richmond:  Are  you  not  mistaken  in  the  proposition,  that  it  shall  be  sold?  Does 
it  not  still  rest  in  the  breast  of  the  judge  whether  or  not  he  will  grant  a  license? 

Mr.  Quarles:  The  only  question  the  judge  has  to  determine  is,  whether  the  applicant 
is  fit  and  the  place  suitable.  He  has  that  to  decide  under  the  general  law,  which 
•operates  along  with  the  local  option  law.  "When  these  requisites  are  proven,  the  judge 
under  the  latest  decisions  of  the  Court  of  Appeals  of  Virginia,  has  no  discretion,  but  is 
compelled  to  grant  the  license, — he  must  or  shall  grant  it. 

The  courts  have  held  that  the  word  "may,"  as  used  in  the  license  statute,  means 
"shall;"  that  is,  the  latest  decisions  of  the  Court  of  Appeals  of  Virginia  are  to  that  effect 
as  I  have  already  explained. 

Mr.  Chairman,  I  hope  there  will  be  no  more  interruptions.  I  was,  when  interrupted, 
discussing  the  question  as  to  whether  or  not  the  liquor  question  comes  properly  within 
the  province  of  a  Constitutional  Convention.  I  was  arguing  that  it  did  not,  because  the 
laws  relating  to  this  subject  would  necessarily  undergo  frequent  changes.  I  stated,  that 
no  one  knew  how  to  deal  with  this  subject  and  that  all  plans  proposed  in  reference 
thereto  were  tentative  and  experimental;  that  those  who  framed  this  measure  were  un- 
certain as  to  what  would  be  its  effect  and  that  this  is  evident  from  the  fact  that  it  is  not 
made  to  apply  to  places,  where  whiskey  is  mostly  sold,  but  only  to  counties  and  towns 
where  the  traffic  is  comparatively  light.  The  best  temperance  measure  is  one  that  v/ill  do  to 
apply  where  it  is  most  needed.  I  contend  that  if  these  gentlemen  who  are  pressing  this 
measure,  had  confidence  in  its  efficiency  as  a  temperance  measure,  and  as  the  best,  they 
would  make  it  supplant  every  other  law  relating  to  the  traffic.  If  they  knew  that  it  was 
better  than  the  local  option  law,  and  better  than  dispensary  laws,  they  would  have  made 
it  supplant  those  laws.  They  are  groping  in  the  darkness  and  are  uncertain  as  to  the  merits 
of  their  measure. 

Mr.  Chairman,  I  do  not  believe  the  temperance  people  are  generally  acquainted  with 
the  real  nature  of  this  measure.  If  they  were,  I  am  confident  they  would  not  endorse  it. 
Every  effort  made  in  behalf  of  the  cause  of  temperance  does  not  result  in  the  advance- 
ment of  that  cause.    How  this  plan  will  work,  whether  for  the  promotion  of  temperance. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2591 


or  in  the  interest  of  the  saloons,  is  problematical.  I  am  informed  that  there  are  fifty- 
five  counties  in  this  State  that  are  "dry"  under  the  local  option  lav^. 

Mr.  Barbour:  I  would  like  to  correct  the  gentleman.  There  are  eighteen  counties 
in  the  State  in  which  no  liquor  is  sold  under  a  license.  There  may  be  fifty-five  counties 
in  which  one  or  more  districts  there  is  a  local  option  law. 

Mr.  Quarles:  They  nave  the  local  option  law,  then,  in  fifty-five  counties  and  eighteen 
of  the  fifty-five  counties  are  entirely  "dry."  This  measure  doe  not  apply  to  the  cities, 
at  all,  nor  to  the  counties  and  towns  in  which  there  have  been  held  local  option  elections, 
according  to  my  viev/,  and  I  am  informed  that  such  counties  and  towns  number  ten  or 
fifteen  in  the  State. 

Now,  Mr.  Chairman,  to  me, — with  so  many  counties,  cities  and  towns  excepted  from 
the  operation  of  this  measure, — it  looks  more  like  a  whiskey  measure  than  a  temper- 
ance measure. 

Mr.  Dunav;ay:  Does  the  gentleman  mean  to  assert  there  are  fifty-five  counties  in 
the  State  entirely  under  local  option  control? 

Mr.  Quarles:  That  statement  was  made  the  other  day  by  my  friend  from  Accomac 
(Mr.  Wescott).  But  the  gentleman  from  Culpeper  (Mr.  Barbour)  states  that  there  are 
eighteen  counties  in  which  the  local  option  law  operates  to  prevent  the  sale  of  whiskey 
in  all  the  districts,  of  each  county  and  that  there  are  fifty-five  counties  in  which  the 
local  option  law  so  operates  in  certain  districts  in  each  county. 

I  contend  that  experience  will  show  that  this  measure,  if  adopted,  will  operate  to  the 
detriment  of  the  temperance  cause.  I  insist  it  will  facilitate  the  granting  of  licenses  in 
the  counties  and  towns  where  it  vvill  operate.  Take  the  case  cited  by  the  gentleman  from 
Richmond  (Mr.  Pollard)  on  the  floor  to-day.  He  stated  that  there  is  a  ward  in  Rich- 
mond, where  there  as  four  hundred  registered  voters,  and  that  only  about  forty  of  that 
number  voted  at  the  last  election.  Then,  in  this  case,  under  this  proposed  measure,  a 
petition  signed  by  twenty-one  of  those  vs^ho  voted  would  secure  a  license  for  an  appli- 
cant to  sell  liquor  in  the  ward  mentioned.  Twenty-one  voters  would  be  able  to  force  the 
sale  of  whiskey  regardless  of  the  wishes  of  the  other  three  hundred  and  seventy-nine 
voters.  We  all  know^  that  often  elections  are  held  in  which  the  people  take  little  or  no 
interest,  and  the  vote  cast  is  very  light;  and  v;henever  this  shall  be  the  case,  what, 
under  this  measure,  is  to  prevent  a  man,  who  v/ants  to  secure  a  license,  from  getting  the 
necessary  signatures?  Take  a  precinct  of  a  hundred  voters  where  only,  say,  twenty- 
five  shall  vote;  the  signatures  of  thirteen  on  a  petition  would  obtain  the  license  and 
according  to  my  interpretation  of  the  proposed  measure,  when  the  petition  is  presented 
to  the  court,  the  license  must  be  granted  without  regard  to  the  fitness  of  the  applicant  or 
the  suitableness  of  the  place.  It  seems  to  me  that  it  should  be  apparent  to  anyone  that 
such  a  law  would  obstruct  the  sale  of  whiskey  less  than  the  present  law. 

The  operation  of  a  law  in  the  State  of  Mississippi,  which  is  said  to  be  similar  to  the 
one  here  proposed,  is  claimed  to  be  successful.  My  information  from  that  State  does 
not  at  all  agree  with  this  claim.  In  Mississippi  there  is  a  law  similar  to  the  one  peti- 
tioned for  here,  that  is,  the  Barbour-Qaarles  resolution.  It  provides  that  when  a  petition 
signed  by  a  majority  of  the  registered  voters  is  presented,  the  license  shall  be  granted. 
I  am  informed  that  this  lav\^  in  Mississippi  in  its  operation  applies  to  only  about  twelve 
counties,  all  of  the  other  counties  being  under  the  operation  of  the  local  option  law 
prohibiting  the  sale  of  whiskey;  and  that  the  parties  in  those  twelve  counties  who  desire 
licenses  get  them.  They  go  around  with  their  petitions  and  with  money  and  whiskey 
corrupt  the  voters.  That  is  the  experience  in  Mississippi,  Vvdth  a  lavv^  more  drastic  than 
the  one  here  proposed.  I  understand  the  people  in  the  counties  referred  to  are  kept  in 
a  constant  state  of  turmoil  in  the  efforts  to  secure  and  defeat  the  granting  of  licenses. 

The  measure  proposed,  Mr.  Chairman,  as  I  have  remarked,  is  legislative.  The  gen- 
tleman from  Culpeper  (Mr.  Barbour)  denies  this  and  says  that  it  enunciates  a  principle. 
Y/hat  is  that  principle?    Let  us  see.    It  provides  that  no  license  shall  be  granted,  ex- 


2592 


DEBATES  OE  THE  COJ^STITUTIONAL  CONVENTION  OF  VIEGINIA. 


cept  upon  the  written  request  of  a  majority  of  those,  who  actually  voted  at  the  last  pre- 
ceding  election.  In  the  Richmond  ward  referred  to  how  many  actually  voted?  Forty. 
It  would  take  a  petition  then  signed  by  twenty-one  to  obtain  license.  What  sort  of  a 
principle  is  exemplified  by  such  a  proceeding  as  that?  The  principle  woald  be  that  a 
minority  of  twenty-one  may  rule  three  hundred  and  seventy-nine.  But  you  cannot  really 
know  what  the  principle  enunciated  by  this  ordinance  is,  until  after  you  put  the  ordinance 
into  operation  and  see  the  results. 

The  gentleman  (Mr.  Barbour)  says  this  measure  will  give  neighborhood  rule.  The 
local  option  law  gives  district  rule,— town  rule,— city  rule.  Now  let  us  illustrate  how  the 
measure  under  consideration  would  work:  There  is  a  district  with  four  or  five  pre- 
cincts in  it  and  a  petition  goes  up  to  the  court  from  one  of  those  precincts  and  a  license 
is  granted.  The  bar-room  thus  established  would,  in  all  likelihood,  affect  every  neighbor- 
hood or  precinct  in  that  district;  and  the  effect  would  be  that  the  measure  would  give  to 
one  neighborhood  or  precinct  the  right  to  rule,  in  respect  to  whiskey,  adjoining  neigh- 
borhood. Is  that  right?  Is  not  the  principle  wrong?  Clearly  so.  A  precinct  or  neigh- 
borhood is  too  small  in  territory.  No  territory  in  the  country  less  than  a  magisterial 
district  should  be  thought  of  in  this  connection. 

Mr.  Dunaway:  Where  local  option  prevails  you  cannot  have  this  measure  to  go  into 
effect  in  a  precinct.    Where  it  does  not  prevail,  you  might  save  one  precinct. 

Mr.  Quarles:  But  you  do  not  save  the  adjoining  precincts,  if  the  liquor  license  is 
granted  in  the  one  precinct;  on  the  contrary  you  supply  them  with  whiskey.  And  if  it 
is  not  granted,  you  do  not  save  the  one  precinct,  because  the  license  may  be  granted  in 
one  or  all  of  the  adjoining  precincts,  thus  affecting  the  precinct,  which  you  would  save. 

Mr.  Dunaway:  If  you  take  a  magisterial  district  in  the  State,  in  which  there  is  no 
local  option  prevailing,  then,  as  has  been  asserted,  you  may  not  save  some  other  precincts, 
but  the  people  of  that  precinct  will  have  the  right  to  say  it  shall  not  be  sold  in  that 
precinct,  and  in  that  magisterial  district,  so  far  as  this  law  can  operate,  it  operates  to 
the  exclusion  of  the  bar-room. 

Mr.  Quarles:  I  know  that  in  many  of  the  magisterial  districts  there  are  four  or  five 
precincts  in  each  district.  The  point  I  am  making  is,  that  if  one  precinct,  in  a  district 
containing  several  precincts,  secures  a  liquor  license  and  a  bar-room  is  erected  there,  it 
will  effect  every  other  adjoining  precinct  in  that  district.  I  say  that  the  territory 
embraced  in  the  precinct  is  too  small  to  give  protection  to  its  citizens  against  adjoining 
precincts  where  liquor  may  be  sold;  and  also  it  is  so  small  that  if  liquor  be  sold  therein, 
it  will  conveniently  supply  the  adjacent  precincts.  The  territory  to  which  self-govern- 
ment is  to  be  given  in  this  matter  should  not  be,  in  the  country,  smaller  than  a  magis- 
terial district,  just  as  is  the  case  in  the  local  option  law. 

Mr.  Chairman,  the  question  here  is,  not  whether  we  are  in  favor  of  temperance  or 
against  it.  We  are  all  in  favor  of  temperance.  We  all  deplore  the  evil  of  intemperance, 
and  we  would  check,  lessen  and  destroy  it  if  we  could;  but  is  it  our  duty  as  Constitu- 
tion-makers to  deal  with  this  subject?  I  submit  that  it  is  not, — I  have  shown  that  it  is 
not,  and  that  we  will  violate  a  fundamental  principal  if  we  do.  We  may  have  the  power 
to  adopt  this  legislation,  but  I  say  we  have  not  the  right  to  thus  abuse  our  power.  Mr. 
Tucker  in  his  great  work  on  the  Constitution  of  the  United  States  gives  utterance  to 
this  pregnant  sentence:  "Wed  right  to  povv^er,  liberty  is  safe  and  despotism  impossible 
Divorce  them,  liberty  dies  and  despotism  reigns."  We  should  regard  the  right  and  can- 
not afford  to  do  otherwise.  The  rules  for  our  guidance  are  laid  down  by  the  great  writ- 
ers on  constitutional  law,  and  it  will  be  unpatriotic  and  wrong  for  us  to  transgress  them. 
1  would  like  to  see  temperance  prevailing  everywhere,  but  I  am  unwilling  to  sacrifice 
principle, — a  foundation  principle  upon  which  we  must  build  our  Constitution  if  we  would 
build  properly  and  wisely, — for  expediency.  Last  winter  there  was  pending  in  Congress  a 
till  called  the  Anti-Canteen  Bill.  It  provided  that  no  whiskey  should  be  sold  in  the  camps 
of  the  army  or  on  government  properties.  The  members  of  Congress  were  besieged  and 
implored  to  support  it.    The  Bill  passed  Congress  and  became  a  law,  and  I  was  one  of 


DEBATES  OF  THE  COXSTITUTIOXAL  C0XVEX5I0X  OE  VIRGIXIA. 


2593 


those  ^-ho  voted  for  it,  but  I  would  never  have  dreamed  of  putting  that  lavr  in  the  Fed- 
eral Constitution,  had  I  had  the  opFortunity  of  doing  so.  I  had  hardly  reached  my  home 
from  AVashington  after  the  adjournment  of  Congress,  before  the  newspapers  teemed  with 
adverse  criticism  of  the  law  from  the  officers  of  the  armj*.  They  claimed  that  whiskey 
would  be  sold  outside  of  the  camps,  beyond  the  supervision  and  control  of  the  officers 
and  that  it  v\-ould  be  better  to  have  it  sold  in  camp  where  its  sale  could  be  controlled. 
I  almost  began  to  think  that  I  had  made  a  mistake,  but  I  consoled  myself  with  the 
thought  that  if  I  had,  the  law  could  be  amended  or  repealed  in  a  fevc  months,  at  the  next 
session  of  Congress. 

Mr.  Chairman,  I  think  this  subject  ought  to  be  left  to  the  Legislature  to  deal  with. 
That  is  the  proper  body  to  make  tentative  laws.  If  it  is  desired  to  experiment  with  the 
operation  and  effect  of  a  law,  the  Legislature  can  do  so  without  much  harm  resulting. 
It  can  quickly  correct  its  mistakes  when  made.  I  met  a  distinguished  divine  on  the 
streets  of  this  city  a  few  days  ago  and  he  said  to  me:  "You  should  turn  that  matter, 
the  whiskej*  question,  over  to  the  Legislature.  I  have  in  my  possession  statistics  which 
conwince  me  that  upon  the  elimination  of  the  ignorant  and  vicious  voters  the  local  option 
law  will  extend  throughout  the  Commonwealth  and  accomplish  what  is  desired." 

I  ask,  :\Ir.  Chairman,  that  the  substitute  I  offer,  which  confers  upon  the  Legislature 
full  power  to  deal  with  this  subject  by  enacting  local  option  laws,  dispensary  laws,  or 
any  other  laws  controlling  or  prohibiting  the  sale  of  liquor,  shall  be  adopted.  (Applause.) 

Z^Ir.  Hubard:  :\Ir.  Chairman  and  gentlemen  of  the  committee,  it  has  been  argued, 
not  that  this  body  has  not  the  povN-er  to  adopt  this  measure — it  is  conceded  that  we  are 
supreme — but  the  distinguished  gentleman  who  has  preceded  me  (^Ir.  Quarles),  and  all 
the  other  speakers  who  oppose  this  measure,  have  said  they  question  the  propriety  of  the 
Barbour  resolution.  It  does  seem  to  me  that  if  there  is  one  question  upon  which  all  of 
us  should  agree,  it  is  that  if  this  means  anything  it  means  a  great  moral  question;  and 
if  Virginia,  the  grand  old  mother  of  States  and  of  statesmen,  has  always  taken  the  lead 
in  the  right,  why  should  she  not  take  the  lead  now,  and  in  the  great  Constitution  we  are 
making,  which  is  to  be  the  fundamental  law  of  the  State  for  all  time  to  come,  set  an 
vxample  to  her  sister  States  of  this  Union  upon  a  great  moral  question? 

It  has  been  conceded,  as  I  say,  that  we  have  the  right  and  the  power,  but  the  pro- 
priety is  questioned.  If  it  is  right  that  the  Legislature  of  Virginia  should  do  it,  why 
should  not  we,  as  the  chosen  representatives  of  the  people,  who  have  that  power,  put  in 
the  organic  law,  the  fundamental  law  of  this  grand  old  Commonwealth  of  Virginia,  as  a 
great  moral  principle,  a  great  democratic  principle,  that  the  majority  of  the  people  in 
every  community*  shall  say  whether  this  evil  shall  exist  or  not. 

Mr.  Chairman,  it  is  a  well-known  fact  that  I  have  not  detained  this  body  long  with 
speeches,  and  I  do  not  propose  to  do  it  now;  but  I  desire  to  say  that  in  all  my  career, 
vs'ith  all  my  faults,  I  have  never  3-et  been  guilty  of  the  responsibility  of  casting  a  "wet" 
vote;  and  standing  here  now,  feeling  the  responsibility  that  is  upon  me  as  it  is  upon  you, 
representing,  as  I  believe  them  to  be.  the  honest  convictions  of  a  good  and  honest  con- 
stituency, I  will  not  be  guilty  novr  of  putting  this  evil  upon  a  community  when  they  do 
not  desire  it. 

At  best,  if  we  live  to  three  score  years  and  ten,  the  journey  of  life  is  brief,  and  the 
end  is  soon  reached;  and  the  grandest,  most  inspiring  thought  that  any  man  can  have 
when  that  journey  is  almost  over,  is  that  he  has  not  lived  for  himself  alone,  but  for  the 
good,  the  uplifting,  and  the  elevation  of  his  fellow-man.  When  we  have  so  lived,  and 
when  our  eyes  are  closed  in  that  sleep  which  will  know  no  waking  until  the  call  to  which 
all  mankind  must  respond,  when  tne  secrets  of  all  hearts  shall  be  known,  when  the  great 
Ruler  of  the  Universe  shall  preside  and  pass  upon  the  deeds  done  in  the  body.  He  will 
look  upon  this  Convention  individually,  and  upon  these  members  here  who  have  ambi- 
tious hopes,  and  who  will  be  led  astray  from  the  ways  of  the  path  of  right,  because  they 
think  and  feel  that  this  is  an  unpopular  matter;  and  such  of  us  that  have  the  nerve  and 


2594 


DEBATES  OF  THE  .COXSTITUTIOKAL  CONVEIS^TION  OF  YIRGIIS'IA. 


the  manhood  to  vote  for  the  Barbour  resolution  will  receive  the  plaudit,  "Well  done, 
good  and  faithful  servant." 

Mr.  Summers:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  speak  five 
minutes  of  speech,  and  then  finish  my  argument  to-morrow,  if  living. 

I  shot  an  arrow  in  the  air. 

It  fell  to  earth,  I  know  not  where. 
I  breathed  a  song  into  the  air, 

It  fell  to  earth,  I  know  not  where; 

Long,  long  afterwards,  in  an  oak, 

I  found  the  arrow,  still  unbroke; 
And  the  song,  from  beginning  to  end, 

I  found  again  in  the  heart  of  a  friend. 

Longfellow  never  wrote  truer  lines.  I  am  going  to  throw  some  arrows,  and  you  will 
find  them  in  the  oak  unbroke.  I  will  sing  a  song  that  will  be  found  in  after  years  in  the 
hearts  of  friends.  Gentlemen  of  the  committee,  I  have  cared  less  about  a  personal 
record  since  I  have  been  in  this  Convention  than  any  man  in  it;  but  there  are  some 
things  I  must  notice.  I  see  that  a  festive  croM^d  in  one  of  our  cities  met  not  long  agoi 
and  made  me  the  chairman  of  the  festal  board,  to  give  out  the  drinks.  I  see  in  a  Nor- 
folk paper  that  we  shall  soon  hear  from  Summers  from  the  Southwest;  but  he  cannot 
speak  eloquently  unless  he  has  peppermint  in  his  brandy.  Now,  gentlemen,  I  want  to 
say  in  my  personal  defence — I  care  nothing  about  myself,  but  I  do  care  for  posterity — 
that  I  am  the  only  man  in  this  hall,  in  this  whole  body,  I  suppose,  who,  if  he  ever  drank 
or  tasted  a  drop  of  ardent  spirits,  it  is  unknown  to  him.  For  sixty  years  I  have  filled 
manhood's  full  measure  and  never  supported  by  intimation,  inclination,  aid  or  other- 
wise, any  measure  unless  it  was  on  the  moral  side  of  the  issue,  and  looking  to  the  ser- 
vice of  God  and  his  Disciples  on  earth. 

Now,  gentlemen,  it  is  always  unpleasant  for  me  to  see  any  young  man  take  the 
immoral  side  of  any  issue.  I  listened  to  the  great  Ajax  of  Eastern  Virginia,  the  repre- 
sentative from  Hanover  (Mr.  Carter),  whom  God  has  blessed  with  a  grand'  countenance, 
and  with  a  generosity  of  soul,  but  with  no  regulator  for  that  which  makes  him  think 
(laughter) ;  and  that  reminds  me  of  my  young  friend  who  hails  from  the  caudal  part  of 
Maryland.  I  felt  like  shedding  a  tear  over  him.  Young  hian,  follow  the  precept  of  St. 
Paul,  and  your  noble  old  mother,  and  retract  and  retrace  your  steps,  and  prove  yourself 
a  moral  man.  (Laughter). 

I  love  my  friend  from  Augusta  (Mr.  Quarles),  because  I  believe  he  is  a  noble  man, 
but  his  Platonic  virtues  are  not  equal  to  his  other  virtues.  They  gave  him  such  a  set- 
ting down  about  the  election  of  officers  by  the  people  that  he,  like  the  old  muse,  went 
out  here  and  never  smiled  again.  He  appears  to  be  mad  at  the  women  and  men  of  the 
earth.  (Laughter) .  If  we,  in  the  wisdom  of  this  Convention,  had  decided  in  favor  of  the 
election  of  officers  by  the  people,  oh,  how  you  and  I  would  rally  here  to  the  cause  of  the 
men  and  women,  and  of  God  Almighty  on  earth,  and  declare  ourselves  men,  instead  of 
being  aids  and  abettors  of  those  who  would  tear  down  the  proud  banner  that  your  wife, 
your  daughters  and  your  moral  friends  of  Augusta  are  spending  their  lives  to  sustain. 

Now,  gentlemen  of  the  committee,  I  want  to  deal  argumentatively  for  only  five 
minutes  this  evening  on  this  subject,  and  then  to-morrow  I  will  give  you  statistics  that 
will  make  the  enemies  of  temperance  tremble  and  show  the  great  supporters  of  the 
destruction  of  the  country. 

Now,  gentlemen,  what  is  the  position  of  the  honorable  gentleman  from  Augusta? 
There  can  be  this  said  about  the  gentleman  from  Augusta  that  with  ail  his  faults  he  is 
honest,  he  is  fair;  but,  like  the  blind  giant  of  old,  you  slay  your  friends  and  know  not 
what  you  do. 

Let  us  take  up  this  subject.  I  think  my  old  friend  and  kinsman,  Brother  Mcllwaine, 
settled  this  matter  when  he  said  that  everything  in  here  that  all  you  do  not  like  should 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2595 


go  to  the  Legislature,  and  the  things  you  do  like  should  go  into  the  Constitution.  Did 
you  not  vote  that  the  judges  should  get  so  much  salary?  Every  man  who  has  advocated 
this  position,  so  far  as  I  have  noticed,  has  so  voted,  unless  it  is  my  friend  from  Hanover 
(Mr.  Carter),  who  is  not  only  and  truly  my  friend,  taut  is  really  a  relation  by  marriage, 
as  he  and  my  wife  have  the  same  blood  in  their  veins;  and  I  will  let  him  know  that  she 
will  blush  when  she  finds  out  how  he  advocates  this  measure. 

Mr.  Carter:    If  she  has  stood  you  this  long,  she  will  not  blush  for  me.  (Laughter.) 

Mr.  Summers:    What  a  woman's  misfortune's  are  are  never  known  until  she  is  dead. 

Did  you  support  the  measure?  You  have  supported  half  a  dozen  appropriation  bills 
and  put  them  in  the  Constitution.  Did  you  not  vote  that  the  salaries  of  the  judges  should 
be  fixed  at  so  much?  Did  you  not  vote  that  every  other  measure  of  that  charac- 
ter should  be  put  in  the  Constitution,  and  now  you  come  here  and  try  and  hood- 
wink, untintentionally,  a  hundred  intelligent  men  and  say  this  cannot  go  in  the  Consti- 
tution. We  have  seventeen  pages  of  minutiae  in  one  of  our  reports  here  that  I  was  in 
favor  of,  and  we  have  put  every  bit  of  that  into  the  Constitution;  and  when  it  comes  to 
the  suffrage  measure  you  men  who  say  this  should  not  go  into  the  Constitution  will  put 
about  seventeen  pages  of  minutiae  into  this  same  Constitution — minutiae  that  you  say 
should  be  left  entirely  to  the  Legislature. 

Now,  Mr.  Chairman  and  gentlemen,  thanking  you  for  your  kind  attention,  I  will  re- 
sume to-morrow  morning,  if  alive.  (Laughter.) 

On  motion  of  Mr.  Barbour  the  committee  rose  and  the  President  resumed  the  chair. 

LIMITATION  OF  DEBATE. 

Mr.  Eggleston:    I  offer  the  following  resolution: 
The  Secretary  read  as  follows: 

Resolved,  That  when  the  Convention  resolve  itself  into  Committee  of  the  V/hole  to 
■consider  the  report  of  the  Committee  on  the  Preambles  and  Bill  of  PJghts  ets.,  no  mem- 
ber shall  be  allowed  to  speak  more  than  ten  minutes,  nor  more  than  once  until  every 
other  member  wishing  to  speak  has  done  so. 

The  resolution  was  agreed  to. 

On  motion  of  Mr.  George  K.  Anderson  the  Convention  adjourned  until  to-morrow, 
Friday,  February  21,  1902,  at  10  o'clock  A.  M. 


FRIDAY,  February  21,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  P.  B.  Price,  D.  D. 

PREAMBLE  OF  BILL  OF  RIGHTS. 

On  motion  of  Mr.  Green  the  Convention  resolved  itself  into  Committee  of  the  Whole 
for  the  further  consideration  of  the  report  of  the  Committee  on  the  Preamble  and  Bill 
of  Rights.    Mr.  Turnbull  in  the  chair. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  AlbemarlB.  The  gentleman  from  Washington,  Mr.  Summers,  is  entitled 
to  the  floor. 

Mr.  Summers:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  want  to  address 
myself  to  you  when  you  have  time  enough  to  listen,  which  I  know  you  have,  for  the 
period  of  ten  minues.  Now,  gentlemen,  I  have,  in  the  limited  time  in  which  I  have 
talked,  answered  all  the  arguments,  as  I  thought,  produced  by  the  gentlemen,  except  one 


2596 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


remark  from  the  gentleman  from  Augusta.  That  remark  was  with  relation  to  his  inter- 
view with  a  minister,  in  which  that  minister  said  for  you  to  turn  that  over  to  the  Legis- 
lature. I  have  never  met  that  kind  of  a  minister,  and  I  do  not  think  there  are  any  more 
of  them  living,  except  the  one  the  gentleman  happened  to  meet  on  that  occasion,  and 
you  will  never  meet  him  again  on  this  earth,  in  my  opinion.  Now,  gentlemen  of  this 
committee,  there  are  imperfections  in  this  report.  All  I  want  you  to  do  is  to  settle  the 
principle.  It  is  the  minutiae  alone  these  acute  and  wise  men  have  attacked.  They  have 
never  attacked  the  principle.  It  is  only  certain  portions  of  the  report  which  they  at- 
tack, and  not  the  principle. 

Now,  gentlemen,  there  will  be  amendments.  There  are  some  who  have  said  that 
this  should  apply  to  the  cities.  You  shall  have  an  opportunity  of  voting  on  that  if  this 
old  hand  can  wrife.  You  shall  have  an  opportunity  of  testing  your  truthfulness  and 
your  sincerity  about  prohibition,  because  I  am  a  prohibitionist.  I  do  not  dodge  the 
issue,  because  I  believe  that  human  experience  dictates  it,  and  dictates  it  as  right.  You 
shall  all  have  an  opportunity  of  voting  upon  those  subjects.  Now,  as  I  am  limited,  and 
have  but  ten  minutes  from  this  moment,  I  want  to  say  that  there  was  a  reference  made 
to  a  political  error  here.  You  all  know  my  politics.  I  am  not  ashamed  of  them.  I  can 
say,  for  myself,  and  my  twelve  disciples  in  this  Convention,  that  we  are  solid  for  the 
measure.  1  throw  the  responsibility  upon  the  majority  of  this  Convention,  where  it  be- 
longs. From  the  humblest  Republican  voter  in  the  Cumberlands  to  Park  Agnew,  in 
Alexandria,  the  Republican  party  is  a  unit  for  this  measure.  I  speak  whereof  I  know. 
Honest  government,  decency  and  morality  and  temperance  is  our  motto,  and  if  we  do 
not  run  the  earth,  we  know  the  seats  that  awaits  us. 

Mr.  Chairman,  I  am  speaking  against  time.  But,  now,  gentlemen,  I  want  you  to 
understand  that  there  are  88  majority  in  this  Convention,  and  whenever  you  throw  this 
thing  out  in  the  face  of  my  religious  people  and  in  the  face  of  my  religious  women, 
democracy  will  stink  in  their  nostrils  and  in  the  nostrils  of  all  decent  people  in  my 
land  and  country. 

Now,  we  come  here  to  help  you  in  a  good  cause  and  to  check  you  when  you  are 
wrong.  If  you  want  to  speed  the  prosperity  and  the  decency  of  your  country,  we  twelve 
disciples  here  are -ready,  your  humble  servants.,  to  move  along  to  the  goal  of  morality 
and  decency  and  God-like  principles.  Gentlemen  of  the  committee,  I  want  to  say  to  you 
this:  You  have  received  instructions  from  my  people.  I  am  from  the  most  beautiful 
town  in  the  Southwest,  a  town  that  has  produced  three  Governors  of  this  Common- 
wealth, the  greatest  heroes  of  it.  There,  in  our  little  town,  three  female  colleges — the 
Martha  Washington,  with  an  attendance  of  200;  the  Jackson  Institute,  a  Presbyterian 
institution,  with  150;  and  our  charitable  friends,  the  Catholics,  have  another.  There- 
fore, my  enthusiasm  for  this  great  cause  and  principle.  Gentlemen  of  the  committee,  I 
have  certain  statistics  which  I  wish  I  could  read  to  you.  I  have  taken  a  long  while  to 
compile  them,  and  I  received  them  from  the  most  accurate  sources.  You  men  who  are 
opposed  to  this  great  principle  should  know  of  the  fact  that  if  for  twelve  months  there 
was  no  ardent  spirits  sold  in  Virginia  we  could  macadamize  the  roads  of  Virginia  from 
one  end  to  the  other  in  twelve  months..  In  another  twelve  months  we  could  pay  half  the 
public  debt.  In  another  twelve  months  we  could  send  our  children  to  school  for  twelve 
months,  instead  of  four.  Now,  when  we  ask  you  for  bread,  you  do  not  throw  us  a  stone, 
but  you  throw  drunkenness,  debauchery  and  poverty  at  us.  You  would  be  more  Chris- 
tianlike if  you  would  throw  the  stone  to  us  instead  of  the  bread  you  do. 

Now,  gentlemen  of  the  committee,  let  me  tell  you  I  desire  that  my  people  shall 
rejoice  at  my  conduct  here  to-day.  I  propose  at  a  future  time  in  this  Convention  to 
relieve,  if  possible,  the  Christian  women  and  the  decent  men  of  the  city  of  Richmond 
and  every  other  city  and  protect  them  in  their  moral  life. 

Now,  gentlemen,  why  do  you  oppose  this?  The  gentleman  from  Augusta,  the  gen- 
tleman from  Hanover,  the  gentleman  from  Accomac,  has  given  no  reason  upon  earth  ex- 
cept that  it  should  not  be  in  the  Constitution.   Now,  gentlemen,  as  I  must  hurry  on,  my 


DEBATES  OF  THE  COXSTITUTIOXAE  COXVEXTIOX  OE  VIRGIXIA. 


2597 


experience  is  something.  I  suppose  I  have  lived  longer  than  any  of  you,  and  I  thank 
God  thai  I  am  alvrays  sober. 

The  Chairman:    The  gentleman's  time  has  expired. 

Mr.  Summers:  Well,  gentlemen,  all  I  ash  of  you  is  this:  To  stand  by  a  God-like 
principle  and  to  relieve  the  people  of  Virginia  of  this  most  damnaole  curse,  and  if  you 
do  not,  so  help  me  God,  democracy,  as  it  is  called,  vrill  pay  the  debt. 

:\Ir.  Lindsay:  :\Ir.  Chairman  and  gentlemen  of  the  committee,  I  vish  very  briefly 
and  very  frankly  to  state  my  position  upon  this  question.  I  shall  not  conceal  from  this 
committee  my  very  grave  doubt  about  the  Tvisdom  of  any  temperance  legislation  in  this 
Convention.  Xor  do  I  hesitate  to  say  that  if  I  honestly  believed  that  the  report  of  this 
committee  was  in  the  interest  of  real  temperance,  I  should  cheerfully  waive  any  doubt 
I  might  have  upon  the  subject  and  gladly  support  the  same. 

Xov,  notwithstanding  the  opinion  of  my  friend  from  Culpeper  (:\Ir.  Barbour)  that 
this  is  a  "milk  and  water"  amendment,  I  maintain  that  the  object  that  each  of  us  seeks 
to  attain  is  identically  the  same.  Let  us  for  a  few  minutes  consider  the  difference  in 
the  two  resolutions.  Both  are  based  upon  the  principle  of  local  option.  Both  are  based 
ostensibly  upon  the  democratic  principal  of  majority  rule.  The  difference  is  this:  That 
in  the  one  case  the  signatures  of  a  majority  of  those  who  are  opposed  to  license  are  re- 
Q_uired,  and  in  the  other  case,  as  embraced  in  my  amendment,  the  signatures  of  a 
majority  of  the  temperance  people  are  required.  Xow,  the  whole  theory,  as  I  see  it,  of 
the  gentlemen  who  advocate  this  report,  and  certainly  of  the  petitioners  who  have  asked 
for  legislation  upon  this  subject,  is  based  upon  the  idea  that  men  who  will  vote  wet  in  a 
local  option  contest  will  not  sign  a  petition  granting  a  license.  That  is  their  conten- 
tion. Otherwise  it  is  not  one  white  better  than  local  option,  Their  theory  is  that  if  you 
take  a  petition  arotmd  in  a  certain  community  men  will  not  have  the  courage  to  put  their 
signatures  upon  a  petition  for  the  granting  of  a  license;  but  that  if  given  the  oppor- 
tunity they  will  vote  wet  in  a  local  option  contest.  That  is  undoubtedly  their  belief, 
otherwise  there  is  no  improvement  over  local  option  conditions.  If  that  be  true,  then, 
you  have  in  a  community  that  goes  dry  by  this  method  public  sentiment  and  the  law  di- 
rectly opposed;  and  I  have  never  seen  a  law  enforced  anywhere  against  the  public  senti- 
ment of  the  community.  W^e  have  such  laws  in  our  State  to-day.  Xow,  the  differences 
between  signing  a  petition  in  favor  of  the  granting  of  a  license  and  against  the  granting 
of  a  license  is  very  manifest.  You  can  easily  ascertain  public  sentiment  in  a  protest 
against  the  issuance  of  a  license,  and  all  of  the  moral  influences  are  arrayed  on  the  side 
against  license  and  in  a  protest  against  its  issuance.  There  would  be  none  of  the  hesi- 
tation in  signing  a  petition  against  the  granting  of  a  license  that  would  exist  if  the  peti- 
tion was  in  favor  of  license.  This  is  simply  applying  local  option  to  individual  cases, 
and  to  communities.  That  is  exactly  what  my  amendment  proposes — to  apply  the  prin- 
ciple of  local  option  to  individual  cases,  and  to  limited  neighborhoods. 

The  gentleman  from  Culpeper  has  seen  fit  not  only  to  designate  this  as  an  ineffect- 
ive amendment,  but  to  say  that  it  is  favored  by  the  whiskey  men  of  the  State,  Xow, 
I\Ir.  Chairman,  I  am  not  in  the  confidence  of  the  whiskey  men  of  Virginia,  but  I  will 
say  that  in  my  judgment,  the  gentleman  from  Culpeper  is  just  as  much  mistaken  in 
thinking  that  the  whiskey  men  of  Virginia  want  such  a  provision  as  I  believe  he  is 
mistaken  when  he  says  the  temperance  people  of  the  State  want  such  a  provision  as  is 
embraced  in  this  report.  X'ot  a  single,  solitary  petition  has  reached  this  body  in  favor 
of  such  a  resolution.  If  they  understood  the  effect  of  the  provision  embraced  in  this  re- 
port, I  do  not  think  the  people  of  Virginia  would  endorse  it.  If  the  case  as  cited  here 
in  Richmond  exists,  and  if  such  instances  are  common  over  the  State,  then  it  is  nec- 
essary for  but  a  small  portion  of  the  registered  voters  to  sign  a  petition,  in  order  to  grant 
a  license.  Ve  all  know  what  the  temperance  people  have  asked  at  our  hands.  It  was 
that  this  provision  should  apply  to  the  cities  and  counties,  and  in  addition,  that  it  should 
require  the  signatures  of  a  majority  of  those  who  were  registered,  whether  actually  vot- 


3598  DEBATES  OF  THE  COISTSTITUTIONAL  CO^TVENTION  OF  VIRGINIA. 

ing  or  not,  in  order  to  secure  a  license.  Now,  I  contend  that  if  you  give  to  the  majority 
the  right  to  protest,  you  accomplish  just  as  effectually  the  bringing  out  of  the  better  ele- 
ment of  citizenship  at  the  polls.  And  if  there  is  a  small  recorded  vote,  you  would  give 
to  the  friends  of  temperance  the  advantage,  if  there  is  an  advantage,  in  the  small  vote. 
If,  as  some  contend,  it  is  an  easy  matter  to  get  signatures  to  a  petition — and  I  am  not 
arguing  that  phase  of  the  question — you  give  to  the  temperance  people  whatever  advan- 
tage there  is  in  that  contention,  in  the  securing  of  signatures  to  a  petition  against  the 
sale  of  whiskey.  My  own  honest  belief  is  that  this  proposition,  as  embraced  in  the  re- 
port of  the  committee,  is  not  at  all  in  the  interest  of  temperance,  but  quite  the  reverse. 

The  Chairman:  The  question  is  on  the  adoption  of  the  amendment  of  the  gentle- 
man from  Albemarle  (Mr.  Lindsay). 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  11;  noes,  42. 

The  Chairman:  The  question  now  is  upon  the  adoption  of  the  substitute  offered  by 
the  gentleman  from  Augusta.    The  Secretary  will  read  the  amendment. 

The  Legislature  shall  have  the  full  power  of  enacting  local  option  or  dispensary 
laws,  or  laws  controlling,  regulating  or  prohibiting  the  manufacture  or  sale  of  intoxi- 
cating liquors, 

Mr.  Barham:  I  move  that  the  dispensary  clause  be  stricken  out.  It  only  relates  to 
my  county.  We  have  two  dispensaries,  one  at  Courtland  and  the  other  at  Franklin.  On 
one  side  of  the  street  there  is  a  dispensary  which  sells  the  liquor  in  original  packages. 
On  the  other  side  of  the  street  is  a  man  with  ice,  sugar  and  water.  You  buy  your  liquor 
on  one  side  of  the  street  and  go  over  to  the  other  side  and  have  it  mixed.  If  you  do  not 
drink  it  at  all  you  leave  it  there  for  the  next  time,  so  you  see  it  is  merely  a  bar-room 
under  another  name.  I  would  like  to  have  the  committee  strike  out  the  word  "dispen- 
sary."   I  make  that  motion. 

Mr.  Pollard:  I  hope  the  committee  will  not  strike  out  the  word  "dispensary."  In  a 
great  many  States,  notably  in  South  Carolina,  the  dispensary  law  is  considered  to  be 
the  proper  solution  of  this  question.  I  had  not  heard  before  that  it  did  not  work  satis- 
factorily in  Southampton.  Certainly  the  difficulties  which  present  themselves,  as  stated 
by  the  gentleman  from  Southampton,  could  be  corrected  by  a  proper  law  on  the  subject. 
Inasmuch  as  the  dispensary  law  has,  in  many  localities  in  this  country,  proven  effective, 
I  hope  the  committee  will  not  take  such  action  as  will  preclude  the  making  of  such 
laws  in  Virginia  in  the  future. 

The  Chairman:  The  question  is  upon  the  adoption  of  the  amendment  of  the  gen- 
tleman from  Southampton  (Mr.  Barham). 

The  amendment  was  rejected. 

Mr.  Dunaway:  Mr.  Chairm.an,  I  desire  to  offer  an  amendment,  to  strike  out  the 
words  in  lines  10,  11  and  12,  "who  actually  voted  in  the  last  preceding  regular  election 
in  such  towns  or  in  such  precinct." 

I  have  observed,  Mr.  Chairman,  that  in  the  remarks  made  by  the  opponents  of  this 
measure  that  they  have  animadverted  upon  this  particular  part  of  the  section.  It  is 
to  relieve  their  minds  and  also  make  the  amendrhent  that  I  believe  is  necessary  for 
the  consistency  of  those  gentlemen  who  advocate  this  matter  that  I  offer  this  amend- 
ment. If  it  is  a  question  of  home  rule  in  any  place  or  to  establish  the  Democratic 
principle  that  the  majority  in  any  precinct  shall  rule,  then  there  ought  to  be  required 
a  majority  of  the  registered  qualified  voters  in  the  precinct  and  not  simply  a  majority 
of  those  who  voted  at  the  last  election. 

Mr.  Green:  Speaking  for  myself  personally  and  without  an  opportunity  to  confer 
with  the  members  of  the  committee,  I  will  say  that  I  am  perfectly  willing  to  accept  the 
amendment  of  the  gentleman  from  Lancaster,  and  it  will  be  considered  as  accepted 
unless  some  member  of  the  committee  objects. 

Mr.  Dunaway:  I  feel  very  much  gratified  at  the  statement  of  the  chairman  of  the 
committee.    I  hear  no  objection  on  the  part  of  any  member  of  the  committee  and  I  take 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXTEXTIOX  OE  VIEGIXIA. 


■2599 


it,  therefore,  that  the  friends  of  this  measure  ^ill  favor  the  amendment  to  leave  out 
these  words.  I  also  take  it  for  granted  that  the  opponents  of  this  measure  will  vote 
for  the  amendment,  because  if  it  is  to  carry,  they  v-culd  want  it  to  carry  in  the  best 
form  in  which  it  could  be  adopted. 
The  amendment  was  adopted. 
Zvlr.  Gillespie:  I  move  to  amend  the  second  section  by  striking  out  the  words  in 
the  third  line  beginning  with  the  word  '"in"  and  going  down  to  the  word  '"sold"'  in 
line  5.  The  section  will  then  read:  "Xo  license  to  sell  intoxicating  liquors  shall  be 
authorized  or  granted  in  any  town  or  county  of  this  State  for  a  period  of  more  than 
twelve  months,"  etc. 

I  further  move  to  strike  out  the  word  '•precinct"  in  line  9  and  insert  in  lieu  thereof 
the  words  "magisterial  district." 

A  license  then  could  not  be  obtained  without  first  obtaining  the  signature  of  a 
majority  of  the  legally  qualified  voters  in  the  magisterial  district,  instead  of  in  the  pre- 
cinct.   A  precinct  is  a  very  small  part  of  a  magisterial  district. 

Mr.  Barbour:  It  seems  to  me  that  the  course  of  the  committee  in  making  limits 
within  which  these  signatures  are  to  be  obtained  as  small  as  cotild  be  done  conven- 
iently is  a  vrise  course.  For  instance,  in  my  own  county,  there  are  some  magisterial 
districts  that  are  fifteen  miles  long,  I  do  not  see  any  reason  why  the  people  at  one  end 
of  that  district  should  be  governed  by  the  people  at  the  other  end  in  the  matter  of 
granting  a  liquor  license.  I  think  that  is  the  very  reason  v-hy  the  local  option  law 
has  failed,  in  those  places  where  it  does  net  work  satisfactorily — because,  in  those  lo- 
calities, local  option  law  is  not  supported  by  public  sentiment. 

Mr.  Pedigo:  Mr.  Chairman,  I  ask  that  the  amendment  of  the  gentleman  from  Taze- 
well be  divided  into  two  propositions.  I  would  like  to  vote  for  the  amendment  pro- 
viding that  a  majority  of  the  voters  registered  in  a  magisterial  district  should  be  re- 
quired to  license  grogshops  anywhere  in  the  magisterial  district.  In  the  one  I  live  in 
there  are  four  precincts  in  a  magisterial  district,  and  if  we  should  put  a  grogshop  on  the 
corner  it  would  annoy  the  other  three  just  as  badly  as  if  it  were  inside  their  own  pre- 
cinct. 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes,  23;  noes,  :30. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Augusta  (Mr.  Quarles). 

Mr.  Kendall:  Mr.  Chairman,  I  believe  I  understood  my  friend  from  Roanoke  (Mr. 
Robertson)  the  other  day  to  say  that  everybody  had  a  right  to  talk  as  much  as  he 
pleased  here;  and  if  so,  I  suppose  it  is  the  duty  of  everybody  else  to  listen. 

I  am  free  to  say  that  upon  this  question  I  have  been  much  trotibled,  perhaps,  as 
to  how  I  should  cast  my  vote  as  upon  almost  any  question  that  has  been  before  the  Con- 
vention. I  have  not  regarded  this  proposition  in  the  light  in  which  I  have  heard  it 
mostly  discussed.  I  have  not  looked  upon  it  as  a  local  option  or  prohibition  measure, 
or  as  anything  in  the  form  of  either,  but  rather  in  opposition  to  both.  It  seems  to  me 
the  question,  and  the  whole  question,  before  this  committee  is  not  whether  there  is  to 
be  local  option  in  any  precinct  or  district  or  not,  but  whether  or  not  the  question  now 
decided  by  the  court  under  the  present  law,  that  a  man  is  a  fit  man  and  the  place  a  fit 
and  proper  place,  is  -to  be  transferred  from  the  sole  jurisdiction  and  decision  of  the 
judge  to  the  joint  jurisdiction  and  decision  of  the  judge  and  a  majority  of  the  voters  in 
the  precinct.  That,  it  strikes  me,  is  the  question,  and  the  whole  and  entire  question 
involved  in  this  proposed  amendment. 

I  do  not  believe  that  if  put  in  force  it  would  operate  in  the  interest  of  local  option 
or  prohibition  except  in  those  particular  sections  where  the  sentiment  for  local  option 
or  prohibition  is  very  strong;  and  wherever  it  is  so  strong,  the  local  option  law  becomes 
effective  and  is  generally  beneficial;  but  wherever  that  is  not  the  sentiment,  or  where 
that  sentiment  is  nearly  equally  balanced,  instead  of  operating  for  local  option  I  think 
it  would  operate  to  the  contrary. 


2600 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


There  are  many  men  who  thmk  that  the  sale  of  liquor  is  but  a  reasonable  and 
proper  privileges  which  ought  to  be  exercised  under  proper  control,  but  they  find  it  con- 
tinually abused  by  those  to  whom  the  privilege  is  intrusted,  and  they  visit  upon  the 
Ys'hole  traffic  itself  the  abuse  of  some  one  or  two  particular  men  who  have  the  privilege; 
and  to  get  rid  of  some  one  fellow  who  is  abusing  this  right,  or  to  prevent  its  liquor  sold 
at  some  particular  locality,  they  gladly  vote  for  local  option  to  prevent  it  altogether, 
when  they  would  be  perfectly  vv^illing  that  it  should  be  sold  if  properly  regulated  and 
properly  sold. 

Looking  at  it  from  that  standpoint,  gentlemen,  and  feeling  somewhat,  too,  that  as 
it  is  a  question  of  decision  by  a  majority,  it  does  have  slightly  the  aspect  of  a  constitu- 
tional question.  I  hesitated  Vv^hether  or  not  I  would  give  it  my  support;  but  two  re- 
flections have  decided  me  to  the  contrary.  In  the  first  place,  I  do  not  think  it  can  be 
denied  that  it  is  to  a  very  large  extent,  experimental.  I  think  there  is  great  force  in  the 
suggestion  that  you  may  set  a  neighborhood  by  the  ears  in  getting  up  these  petitions. 
Men  will  take  offense  because  some  of  their  friends  do  not  sign  them  for  somebody. 
Men  are  compelled  to  place  themselves  on  record,  as  between  their  fellow-men  and  be- 
tween their  neighbors,  and  bad  motives  may  influence  some,  and  bad  motives  may  be 
attributed  to  many;  so  that  it  would,  perhaps,  be  likely  to  set  a  neighborhood,  to  some 
extent,  by  the  ears.  If  that  is  so,  I  do  not  want  to  put  any  provision  of  that  kind  in  the 
Constitution,  so  that  it  cannot  be  changed. 

Another,  and  perhaps  a  paramount,  consideration  with  me,  however,  has  been  that 
we  have  a  Constitution  ih  fhe  consideration  of  w^hich  we  have  spent  many  months,  and 
Y/hich  involves  a  vast  interest  to  the  people  in  seeing  it  adopted  and  put  in  force,  be- 
cause I  think,  taking  it  on  the  whole,  we  have  made  a  very  good  Constitution.  Now, 
gentlemen,  I  do  not  v/ant  to  do  anything  to  jeopardize  that  work;  and  notwithstanding 
the  fact  that  it  is  proposed  to  submit  this  question  separately,  I  do  not  think  it  can  be 
denied  that  it  would  be  found  that  the  liquor  interests  would  have  the  overtures  of 
other  interests,  and  that  it  V\^ould  be  said  to  them,^  'if  you  will  help  us  to  defeat  this 
Constitution  in  toto,  or  certain  parts  of  it,  we  will  help  you  on  the  liquor  question,  and 
vice  versa.  If  this  Constitution  is  to  be  submitted  at  all,  I  do  not  want  it  hampered  by 
any  such  weights  as  this  provision  would  throw  around  it. 

So  that  these  two  controlling  principles  will  control  my  vote.  Were  I  a  member 
of  the  Legislature,  and  this  provision  were  offered,  I  should  not  be  averse  to  it.  I  am 
inclined  to  think  I  would  support  it,  and  give  it  a  trial,  but  it  is  a  very  different  ques- 
tion here  to-day;  and  for  that  reason  I  exercise  the  privilege  to  which  the  gentleman 
from  Roanoke  says  we  are  all  entitled,  to  declare  my  opposition  to  it. 

Mr.  Parks:  Mr.  Chairman,  I  had  not  intended  saying  anything  upon  this  subject, 
but  while  to  some  it  may  seem  a  small  matter,  to  my  mind,  it  is  very  important. 

I  have  voted  to  place  in  this  Constitution  measures  that,  in  my  judgment,  were  of  a 
legislative  character.  I  did  it  because  I  thought  it  was  best  and  right  to  do  it.  I  did  it 
against  my  better  judgment  in  reference  to  Constitution-making,  believing  that  nothing 
should  go  in  the  organic  law  of  the  State  unless  there  underlies  it  a  general  principle, 
a  broad,  comprehensive  principle,  affecting  the  whole  body-politic,  and  touching  all  the 
people  alike. 

When  we  come  to  this  matter,  this  is  not  merely  legislative  in  its  character.  It  is 
the  worst  kind  of  special  legislation.  Why?  Look  at  the  third  section.  It  says  if  this 
becomes  a  law  it  shall  not  interfere  with  local  option  nor  with  dispensaries.  Therefore, 
you  would  have  in  one  district  in  a  county,  for  instance,  in  the  county  of  the  gentleman 
from  Southampton  (Mr.  Barham),  liquor  disposed  of  under  the  dispensary  system,  in 
another  district  the  sale  of  liquor  governed  and  controlled  by  the  local  option  law,  in 
another  district  the  sale  of  liquor  governed  and  controlled  by  what  is  said  to  be  a 
majority  of  the  voting  population,  or  of  the  registered  voters  in  the  precinct  signing 
a  petition  taken  around  by  somebody,  and,  as  suggested  by  the  gentleman  who  has  just 


DEBATES  OF  THE  CONSTITUTIOis" AL  COXVENTIOIT  OF  VIRGINIA. 


2601 


taken  his  seat  (Mr.  Kendall)!  can  see  very  well  how  great  trouble  would  arise  growing 
out  of  that  very  matter,  and  that  people  in  a  community  would  be  set  by  the  ears  be- 
cause there  would  b^  those  who  would  say,  when  questioned  about  it,  "I  did  not  sign 
mj  name  to  that  petition,  and  I  did  not  give  anybody  else  the  right  to  sign  my  name  to 
it."    And  there  would  be  a  question  of  veracity. 

If  we  propose  by  any  such  method  as  this,  or  by  any  other  method,  to  stop  the  sale 
of  ardent  spirits,  the  only  way  we  can  reach  it  at  all  to  any  extent,  is  by  stopping  the 
manufacture  of  it.  That  will  not  stop  it  entirely,  because  even  in  States  where  the 
manufacture  of  ardent  spirits  is  prohibited,  liquor  is  gotten  and  sold;  but  you  license 
the  maufacture  of  liquor,  and  when  you  do  so,  when  you  give  a  man  under  the  sanction 
of  the  law  a  right  to  manufacture  an  article,  there  goes  with  ft  the  implied  authority  to 
dispose  of  that  article,  and  whether  the  authority  is  implied  or  express,  he  will  argue 
this  way  to  himself:  "You  license  me  to  manufacture,  and  whether  you  give  me  the 
right  to  sell  it  or  not,  I  propose  to  sell  it." 

Mr.  Chairman,  what  my  personal  habits  may  be  have  nothing  to  do  with  this  ques- 
tion. None  of  the  gentlemen  who  have  spoken,  with  the  exception  of  the  gentleman 
from  Washington  (Mr.  Summers)  have  said  they  are  teetotalers  and  prohibitionists. 
What  my  habits  or  my  wishes  may  be  as  to  the  use  of  ardent  spirits  has  nothing  to  do 
with  this  matter;  but  I  want  to  say  this,  and  I  challenge  contradiction  of  it,  that  the 
distilleries  are  doing  more  to  debauch  and  corrupt  the  morals  and  ruin  the  young  men 
of  the  country  than  all  the  bar-rooms  in  the  land.  Why?  Because  you  give  them  the 
right  to  sell  by  the  gallon,  and  I  know,  and  every  other  man  knows,  who  knows  any- 
thing about  it,  that  they  sell  by  the  drink,  by  the  pint,  by  the  quart,  on  Sunday  and 
week  days,  and  to  anybody,  young  or  old,  high  or  low,  rich  or  poor,  black  or  white,  male 
or  female— anybody  who  wants  to  drink  it.  (Laughter.) 

Mr.  Robertson:    That  is  the  case  right  in  your  own  county,  it  is  not? 

Mr.  Parks:  Yes,  sir;  right  in  my  own  county;  and  in  every  other  county  in  my 
section  of  the  State  wherever  there  is  a  distillery,  they  will  do  it. 

Why  is  this  gentlemen?  Let  us  look  at  the  facts.  I  say  that  a  great  deal  of  the 
trouble  has  grown  out  of  the  manner  in  which  the  manufacture  and  sale  of  ardent 
spirits  has  been  conducted  by  the  government,  both  Federal  and  State.  The  Federal 
government  licenses  a  man  to  manufacture  whiskey  or  brandy,  and  then  puts  over  him 
an  inspector  or  a  store-keeper  to  watch  him.  It  practically  says  "  you  are  a  scoundrel. 
You  will  not  observe  the  law  and  the  government  will  put  an  inspector  to  watch  over 
your  conduct."  The  State  government  licenses  the  manufacture  and  it  provides  the 
manner  in  which  license  may  be  obtained  for  the  sale  of  it;  and  what  have  we  done? 
Do  we  license  it  as  any.thing  else  is  licensed?  No,  we  throw  around  it  the  safeguard  of 
the  court.  We  say  to  the  man,  "While  we  will  give  you  license  to  sell,  you  must  go  to 
the  court  and  prove  that  you  are  a  suitable  man;  you  must  show  the  place  is  a  suitable 
place;  then  you  must  give  bond."  And,  gentlemen,  in  this  connection  let  me  say  that 
the  Legislature  of  this  State  has  done  all  the  temperance  people  have  ever  asked  at 
their  hands.  What  have  we  done?  We  have  said  that  if  a  party  makes  application 
to  the  court  for  license,  any  citizen  of  a  county  may  come  forward  and  appear  as  a 
defendant  and  have  the  same  rights  in  court  as  any  litigant,  introduce  witnesses  and 
make  all  the  opposition  that  can  be  made  to  the  granting  of  a  license.  What  further? 
Why.  the  temperance  people  then  said,  "We  do  not  know  when  the  man  is  going  to 
make  his  motion.  We  do  not  know  when  he  is  going  to  court  with  his  application,  and 
we  will  not  be  prepared."  Very  well;  the  Legislature  then  said  further:  "Whenever  a 
man  proposes  to  apply  to  the  court  for  a  license,  and  at  the  place  where  he  proposes  to 
ask  for  the  exercise  of  this  privilege,  and  in  front  of  the  court-house  door  of  the  county 
for  thirty  days,  so  as  to  give  notice  to  the  public  of  his  purpose,  and  that  the  people,  if 
they  object  to  it,  shall  have  the  opportunity,  as  the  law  confers  upon  them  the  right,  to 
appear  in  court  and  oppose  it. 
164— Const.  Deb. 


2602 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


It  is  said  we  propose  to  go  a  step  further.  The  law  provides  for  a  license,  but  we 
propose  to  say  "You  must  take  a  petition  and  go  around  and  get  a  majority  of  the 
registered  voters  who  voted  at  the  last  election,"  if  that  is  the  form  in  which  it  is  put, 
or  if  the  other  way,  "a  majority  of  the  registered  voters  of  a  precinct,  to  sign  a  petition 
requesting  a  license.    Look  at  the  position  in  which  we  put  ourselves. 

The  law  provides  for  granting  of  license,  and  legalizes  the  traffic,  and  yet  says  to 
the  citizen  who  proposes  to  engage  in  it,  "Although  the  law  does  that,  you  must  go  and 
get  the  consent  of  the  people  to  allow  you  to  do  what  the  law  says  you  shall  have  the 
right  to  do."  What  sort  of  position  is  that  for  us  to  put  ourselves  in?  I  thank  you 
gentlemen. 

Mr.  Dunaway:  Mr.  Chairman,  before  the  vote  is  taken  I  wish  to  engage  the  atten- 
tion of  the  committee  for  a  short  while  upon  this  very  important  subject. 

Replying  first  to  the  speech  that  has  been  made  here  by  my  friend  from  North- 
ampton (Mr.  Kendall),  ISecause  it  is  fresher  in  my  mind,  he  takes  the  position,  which  is 
probably  taken  by  a  good  many  other  gentlemen  on  this  floor,  that  this  provision  should 
not  be  adopted  into  our  Constitution,  because  it  is  an  experiment,  in  the  first  place,  and 
will  put  the  people  of  certain  precincts  of  the  State  by  the  ears,  to  use  his  own  expres,- 
sion  on  this  subject. 

Mr.  Chairman,  I  wish  to  say  that  the  people  of  Virginia  are  already  by  the  ears  on 
this  matter  in  every  precinct  in  the  State.  If  the  members  of  the  Convention  have  con- 
sidered the  trend  of  affairs  in  Virginia  for  the  last  twenty  years,  they  must  be  obser- 
vant of  the  fact  that  a  great  moral  reform  has  swept  over  the  Commonwealth  of  Vir- 
ginia, and  that  sooner  or  later  the  contest  which  is  waged  upon  this  floor  will  be 
crowned  with  victory  for  the  advocates  of  the  measure  that  proposes  that  there  shall 
not  be  a  licensed  saloon  in  the  Commonwealth  of  Virginia.  The  relief  is  coming,  Mr. 
Chairman.  It  may  not  come  through  this  Convention,  but  it  is  on  the  way,  and  the 
time  is  coming — I  hope  some  of  us  may  live  to  see  it — when  there  will  not  be  a  licensed 
bar-room  in  the  State  of  Virginia.  As  for  the  people  being  put  by  the  ears  upon  it,  what 
is  the  conditon  of  affairs  now,  under  your  local  option  laws?  The  same  thing  exists  in 
every  county,  iji  every  district  in  the  State.  Men  will  differ,  and  sometimes,  unfor- 
tunately, they  will  fall  out  on  account  of  their  differences. 

They  say  this  is  an  experiment.  You  are  going  to  try  several  experiments.  You 
have  adopted  the  experiment  of  a  railroad  commission  in  the  State  of  Virginia;  and  you 
did  not  stop  at  that  because  it  was  an  experiment,  but  because  you  believed  you  were 
upon  the  line  of  right,  and  therefore  adopted  it.  Some  gentlemen  say  the  whole  matter 
ought  to  be  left  to  the  General  Assembly.  I  have  found  in  the  discussion  here  that  if 
we  favor  a  measure  we  are  willing  to  put  it  in  the  Constitution,  whether  it  has  legisla- 
tive characteristics  or  not,  and  if  we  are  opposed  to  if,  we  seek  to  condemn  it  by  saying 
it  is  a  matter  that  ought  to  be  left  to  the  General  Assembly  of  Virginia.  We  have 
already  adopted  this  corporation  article,  which  is  essentially  legislative  in  its  character, 
and  yet  gentlemen  who  voted  to  support  that  will  condemn  this  because  it  is  legisla- 
tive in  its  character. 

Now,  in  regard  to  another  objection  raised,  that  it  is  going  to  hazard  the  adoption 
of  your  Constitution.  We  must  be  cognizant  of  the  fact  that  a  great  many  petitions 
have  Deen  brought  here,  signed  by,  perhaps,  20,000  of  the  registered  voters  of  the  Com- 
monwealth of  Virginia — a  small  part,  it  may  be,  but  I  will  tell  you,  gentlemen  of  the 
committee,  that  these  20,000,  in  my  judgment,  represent  a  majority  of  the  voters  of  the 
Commonwealth,  and  the  people  behind  this  measure  can  make  or  unmake  your  Consti- 
tution. There  are  more  people  behind  this  measure  than  are  engaged  in  the  liquor 
traffic  in  Virginia.  The  temperance  people  of  Virginia  can  control  more  votes  in  Vir- 
ginia than  the  whiskey  element  can  control  in  the  State;  and  the  people  who  are  ask- 
ing this  measure  at  your  hands  can  defeat  your  Constitution  if  they  want  to  do  so. 
They  are  patriotic  citizens,  and  they  will  most  likely  vote  for  your  Constitution  if  it  is 


DEBATES  OE  THE  COXSTITETIOXAL  COXYEXTIOX  OE  VIEGIXIA. 


2603 


submitted  to  them,  Tvhetlier  3-ou  liave  outraged  their  desires  or  not,  by  failing  to  give 
them  this  reliei,  but  that  is  no  way  for  this  Convenion  to  treat  those  who  stand  them 
in  the  hour  of  their  peril.  It  may  be  that  the  whiskey  interest  will  threaten  the  OTer- 
throw  of  our  Constitution,  but  I  doubt  whether  they  have  that  degree  of  patriotism 
which  is  entertained  by  the  men  who  have  signed  the  petitions  which  hare  come  up 
here. 

Coming  to  the  main  question,  what  is  this  which  is  here  before  us?  It  is  not  a 
proposition  to  prohibit  the  sale  of  ardent  spirits  in  the  Commonwealth  of  Virginia.  It 
is  not  a  measure  of  prohibiton.  It  does  not  prohibit  the  manufacture  or  the  sale  of 
whiskey  anywhere  in  the  Commonwealth,  or  of  brandj',  wine,  or  sluj  other  ardent  spirits 
whatsoever.  It  does  not  even  say  there  shall  not  be  a  bar-room  in  any  place  in  Vir- 
ginia, but  it  proposes  to  leave  it  to  the  people  in  the  various  localities  of  the  State  to 
say  whether  they  will  have  a  licensed  bar-room  or  not. 

Mr.  Chairman,  from  the  time  when  I  was  a  boy,  this  question  in  regard  to  the  sale 
of  intoxicants  has  been  before  the  people  of  Virginia.  The  friends  of  it  have  adopted 
various  devices.  I,  myself,  have  been  a  member  of  a  temperance  association,  the  Gaod 
Templars,  for  instance.  I  remember  in  my  boyhood  when  the  old  Sons  of  Temperance 
were  in  Virginia.  I  wish  to  say  that  I  believe  the  friends  of  temperance  in  the  Com- 
monwealth have  made  mistakes  along  that  line,  and  that  relief  can  never  come  to  the 
people  through  any  of  these  organizations.  Years  ago  I  formed  the  opinion  that  the 
proper  way  to  do  was  to  strike  at  the  saloons  in  every  part  of  the  State.  I  rejoice  to 
live  in  the  da^*  when  there  is  in  the  Commonwealth  of  Virginia  a  league  that  is  known 
as  the  Anti-Saloon  Leagtie. 

Mr.  Quarles:    Do  you  believe  the  sale  of  intoxicating  liquors  is  an  evil? 

Mr.  Dunaway:  I  believe  the  sale  in  licensed  bar-rooms  is  an  unmitigated  curse  in 
any  place  where  it  exists.  (Applause), 

Mr.  Quarles:    Then  you  believe  in  prohibiting  it? 

Mr.  Dunaway:    Xo,  sir.    It  does  not  necessarily  follow. 

Mr.  Quarles:  You  are  willing  to  sanction,  in  the  Constitution  of  Virginia,  the  sale 
of  it,  are  you  though  you  believe  it  an  unmitigated  curse? 

Mr.  Dunaway:  I\Ir.  Chairman,  if  we  cannot  accomplish  a  perfect  and  thorough  re- 
form in  regard  to  this  great  evil  that  afflicts  our  land.  I  am  for  striking  at  what  I  con- 
sider to  be  the  tap  root  of  the  free  of  evil,  and  that  is  the  saloon.  Just  let  me  get  the 
saloon  out  of  the  Commonwealth,  in  the  first  place,  and  in  the  meantime  you  may  go  on 
and  have  whiskey  sold.  Yes,  sir,  I  would  compromise  with  the  whiskey  element  in  the 
Commonwealth  of  Virginia  upon  that  right  now.  You  may  sell  it  as  articles  of  mer- 
chandise are  sold  in  your  respectable  stores,  in  certain  quantities,  gallon  quantities,  as 
provided  here,  not  to  be  drunk  where  sold.  I  do  not  regard  it  as  the  chief  evil  in  A'ir- 
ginia  that  whiskey  is  made  and  drunk,  but  I  regard  it  as  the  chief  evil  that  the  Com- 
monwealth of  Virgina  licenses  these  places,  that  whiskey  may  be  drunk  where  it  is 
sold  and  where  young  and  old  men  may  be  tempted,  debauched  and  corrupted,  ruined, 
filled  in  their  latter  days  with  shame  and  remorse. 

I  say  I  regard  the  bar-room  as  an  evil  in  this  Commonwealth.  Tkose  who  oppose 
this  measure  will  unanimously  agree  with  me,  I  think,  upon  that  question.  I  do  not  be- 
lieve there  is  a  man  upon  this  floor  who  thinks  a  bar-room  is  a  good  thing  to  have  in 
any  community  in  the  State. 

I  regard  this  whole  proposition  as  a  blow  at  the  bar-rooms,  and  because  of  that 
fact  I  give  it  my  advocacy  and  my  vote.  If  there  be  an  evil,  what  are  you  going  to  do 
with  it?  Regulate  it?  Regulate  an  evil?  I  think  the  right  thing  to  do  with  an  evil 
is  to  abolish  it  if  you  can  do  ft:  abolish  in  a  proper  way,  and  in  accordance  with  the 
spirit  of  our  institutions,  by  a  majority  of  the  voters  in  any  particular  place  in  the 
Commonwealth. 

Mr.  Quarles:    If  I  understand  yoy  correctly,  you  are  willing  to  sanction  the  sale 


2604  DEBATES  OF  THE  CONSTITUTION^AL  CONVENTION  OF  VIRGINIA. 

cf  liquor  in  this  Commonwealth  by  a  provision  in  our  Constitution?  You  are  wiling  to 
perpetuate  the  sale  of  it? 

Mr.  Dunaway:  Mr.  Chairman,  this  is  not  a  question  of  the  sale  or  no  sale  of 
ardent  spirits  in  any  part  of  the  Commonwealth.  It  is  a  question  of  whether  we  as 
citizens,  of  Virginia,  are  willing  to  do  something  to  get  the  bar-rooms  out  of  the  Com- 
monwealth. I  say  that  it  is  an  evil,  and  we  ought  to  try  and  rid  of  it  if  we  can;  but  the 
position  of  the  Commonwealth  of  Virginia  is  a  false  and  untenable  position  upon  this 
subject.    I  hope  gentlemen  will  hear  me  when  I  say  that. 

I  repeat  it,  the  position  the  Commonwealth  occupies  upon  this  subject  is  a  false 
and  untenable  position.  It  has  been  so  for  a  long  time.  The  Commonwealth  assumes 
that  the  bar-room  is  a  good  thing.  I  am  very  glad  that  no  opponent  of  this  measure  has 
said  anything  about  the  State  getting  revenue  out  of  it.  That  old  gun  has  been  spiked 
long  ago,  because  it  is  well  known  that  the  criminal  expenses  growing  out  of  the  ex- 
istence of  these  bar-rooms  more  than  consumes  the  revenue  that  comes  into  the  State 
from  them.  The  State  is  occupying  the  position  of  the  barroom  keeper.  It  is  said  it  is 
a  good  thing  and  we  must  make  money  out  of  it;  and  that  is  what  old  Virginia  is  doing, 
making  money  out  of  a  great  evil  that  is  cursing  a  great  many  of  her  people. 

The  friends  of  this  measure  say  it  is  an  evil.  The  State  and  the  opponents  of  this 
measure  say  it  is  a  good  thing  to  have  the  bar-room,  and,  notwithstanding  we  think  it 
is  a  good  thing,  we  give  you  a  chance  to  vote  it  out  if  you  can  get  a  measure  in  your  local 
option  election.  The  friends  of  this  measure  come  with  the  opposite  position  and  say  it 
is  a  great  evil,  and  that  it  should  not  be  forced  upon  a  community,  and  that  no  com- 
munity ought  to  be  allowed  to  have  an  evil  in  its  midst  unless,  acting  upon  an  old 
Democratic  principle,  a  majority  of  the  people  of  that  precinct  say  it  ought  to  be  there. 
T  ask  you  which  is  the  correct  position  upon  this  subject.  Will  you  force  it  upon  the 
people,  or  will  you  let  the  people  take  it  at  your  hands?  That  is  one  of  the  great  ques- 
tions we  are  to  decide  here. 

This  is  a  proper  measure,  in  my  judgment,Mr.  Chairman,  and,  so  far-  as  local  option 
is  concerned,  and  the  relations  of  this  measure  to  local  option,  I  regard  this  merely  as 
supplemental.   Where  local  option  exists,  this  measure  would  not  apply. 

Now,  some  gentlemen  have  said  that  local  option  exists  in  fifty-five  counties  of  the 
State.  One  of  the  gentlemen  sitting  here  before  me,  my  esteemed  friend  from  Rock- 
bridge (Mr.  Anderson)  has  sought  to  find  out  how  many  counties  there  are  in  the 
Commonwealth  that  have  local  option  by  sending  around  a  paper  among  the  members 
of  the  Convention.    I  will  ask  him  how  many  there  are. 

Mr.  William  A.  Anderson:  As  near  as  I  can  get  at  it  from  the  knowledge  of  mem- 
bers of  the  Convention  who  have  responded  to  the  inquiry,  Mr,  Chairman,  there  are 
about  twenty-four  counties  in  the  State  that  have  local  option  throughout  the  counties, 
but  a  large  number  of  counties,  as  many  more,  perhaps,  have  local  option  in  various 
magisterial  districts  in  parts  of  those  counties;  and  in  a  number  of  those  counties 
no  licenses  are  issued — either  none  at  all,  or  none,  perhaps,  except  in  one  locality,  gen- 
erally the  county  seat. 

As  near  as  I  can  get  at  it,  no  license  is  granted  for  the  sale  of  liquor  in  much  more 
than  one-half  of  the  Commonwealth. 

Mr.  Dunaway:  Mr.  Chairman,  I  just  wish  to  make  one  more  remark,  and  I  will  re- 
lieve the  attention  of  the  committee.  They  say  you  are  making  an  experiment,  and 
you  ought  to  leave  it  to  the  General  Assembly  of  Virginia. 

What  we  want,  and  what  we  are  contending  for,  is  the  establishment  of  a  principle. 
Principles  do  not  change  with  the  coming  and  the  going  of  the  years.  The  time  will 
never  come  in  the  history  of  Virginia  when  the  bar-room  can  be  a  good  thing.  Some 
things  may  change  their  nature,  but  this  cannot  change.  The  Ethiopian  cannot  change 
his  skin,  nor  the  leopard  his  spots,  and  this  cannot  be  made  into  a  good  thing  in  the 
State  of  Virginia. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIEGIXIA. 


2605 


Anotlier  thing  is  true  and  eternal;  and  it  lies  at  the  very  lowest  part  of  the  founda- 
tion of  our  American  political  systems  and  of  our  constitutions — that  majorities  shall 
rule.  Now,  here  are  two  everlasting  principles,  and  we  want  to  engraft  principles  into 
the  Constitution.  So  you  need  not  fear  that  if  you  adopt  this  principle  that  it  will  he 
an  experiment  and  that  subsequent  Legislatures  may  find  that  it  is  not  wise.  No  Legis- 
lature ever  elected  in  Virginia  will  be  wise  enough  to  say  that  the  bar-room  is  a  good 
thing,  or  that  a  majority  of  the  people  in  any  place  ought  not  to  control  this  subject  in 
their  midst. 

Thanking  you,  gentlemen,  for  your  attention,  I  must  leave  the  matter  to  your 
decision. 

Mr.  P.  W.  Campbell:  Mr.  Chairman,  having  been  credited  with  the  distinction  of 
having  cast  the  deciding  vote  of  the  committee  in  favor  of  the  Quarles-Barbour  resolu- 
tion, I  desire  to  submit  just  a  few  remarks,  not  believing  for  an  instant  that  my  remarks 
can  change  a  single  vote  of  any  member  of  this  committee,  but  for  my  own  satisfaction 
and  as  a  duty  which  I  think  I  owe  my  constituents.  The  consideration  which  deter- 
mined me  to  vote  in  favor  of  this  resolution  was  not  that  which  seems  to  have  actuated 
a  number  of  the  gentlemen  on  the  committee,  and  which  seems  to  be  actuating  a  num- 
ber who  have  addressed  themselves  to  this  question  on  this  floor.  It  puzzled  me 
long,  and  I  was  deeply  worried  as  to  whether  or  not  I  should  advocate  this  measure. 
The  question  of  morals,  I  must  confess,  entered  but  little  into  my  determina- 
tion to  support  it.  I  am  not  one  of  those.  Mr.  Chairman,  who  believe  so  greatly 
in  the  old  principle  that  we  are  our  brother's  keeper.  I  think  that  every 
man  has  a  right,  in  this  country,  so  long  as  he  does  not  trespass  upon  the  rights 
of  others,  to  do  as  he  sees  fit.  The  consideration  which  did  actuate  me  was 
whether  or  not  this  was  a  provision  that  should  go  into  the  organic  law  of  our  land,  and 
I  arrived  at  the  decision  that  it  was,  based  upon  the  high  principle  that  this  is  truly  the 
embodiment  of  the  highest  form  of  local  self-government.  If  the  people  of  a  community 
or  a  county  want  to  place  upon  themselves  the  evil  of  the  liquor  traflBc  then  I  say  let 
the  people  of  that  community  or  the  people  of  that  county  have  the  right  to  do  so;  but 
if.  on  the  other  hand,  the  people  of  a  certain  community  do  not  want  to  place  them- 
selves under  the  ban  of  the  liquor  traffic  then  I  say  they  have  the  right  by  the  exercise 
of  their  privileges  of  citizenship,  to  say  that  this  traflic  shall  not  be  forced  upon  them. 

Mr.  Chairman,  for  those  reasons,  and  not  for  fanatical  reasons,  as  has  been  some- 
times charged  against  the  members  of  the  committee  who  voted  in  favor  of  this  resolu- 
tion. I  was  led  to  support  this  measure.  Intimations  have  been  made  here  that  some  of 
these  who  advocated  this  measure  were  afraid  of  the  Christian  element  throughout  the 
State.  I  want  to  say  for  myself,  that  I  do  not  believe  the  principle  I  have  just  enuncia- 
ted entered  into  this  matter,  and  the  Christian  people  of  the  State  of  Virginia,  and  I 
hope  I  am  one  of  them,"  with  all  their  combined  effort  in  carrying  out  what  may  be  with 
them  a  fanatical  movement,  could  not  force  me  to  support  the  measure.  I  repudiate  any 
insinuation,  from  whatever  source,  that  I,  for  one,  have  been  actuate~H  by  any  motives 
of  fear  or  favor.  I  do  not  believe  that  the  advocates  of  temperance  would  threaten  the 
people  of  the  State  of  Virginia.  I  think  that  argument  by  the  opponents  of  this  measure 
is  a  bugaboo.  I  do  not  think  the  advocates  of  temperance  would  imperil  the  Constitu- 
tion whch  we  are  framing  by  voting  against  it  because  we  simply  refuse  to  incorporate 
this  single  provision  in  our  organic  law.  For  these  reasons  I  supported  the  resolution 
offered  by  the  gentleman  from  Culpeper  in  committee,  and  for  these  reasons,  sir,  I 
intend  to  support  it  upon  the  floor  of  this  Convention. 

:\Ir.  Wescott:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  want  to  relieve 
your  minds  from  the  consternation  which  I  fear  will  result  from  the  size  of  these  vol- 
umes I  have  brought  with  me  by  assuring  you  that  I  have  no  intention  to  make,  in  this 
matter,  any  further  protracted  argument. 

Last  Monday,  two  weeks  ago,  I  attempted,  as  best  I  could,  to  point  out  some  of  the 
gravest  and  weightiest  objection  which  this  matter,  as  reported  by  the  committee  pre- 
sented to  my  mind. 


2606 


DEBATES  OF  THE  CONSTITUTIOIS^AL  CONVENTION"  OF  VIRGINIA. 


In  the  course  of  my  remarks  I  said — I  have  not  the  exact  language  before  me,  but 
I  think  I  can  state  accurately  and  succintly  what  it  was — that  there  was  no  parallel  to 
be  found  for  this  species  of  legislation  in  any  Constitution  of  any  State  in  the  Union,  nor 
in  any  statute  ever  enacted  by  the  General  Assembly  of  any  State  in  the  Union.  The 
distinguished  gentleman  from  Culpeper,  for  whom  it  is  useless  for  me  to  asseverate,  I 
entertain  the  highest  respect  and  most  unbounded  admiration,  said  that  I  was  wrong  in 
the  statement  I  have  referred  to.  The  urbanity  which  ever  characterizes  that  gentle- 
man's utterances  and  demeanor  in  all  respects  induced  him  to  say  further  that  he  be- 
lieved I  would  not  have  made  the  statement,  which  he  characterized  as  a  wrong  state- 
ment, If  I  had  known  that  it  was  wrong.  For  that  I  am  duly  grateful  to  the  gentleman, 
and,  in  his  own  language,  I  wish  to  say  the  same  with  reference  to  his  utterances  yester- 
day. 

Mr.  Barbour:  I  will  state  to  my  friend  that  I  did  not  confine  it  lo  a  statement  of 
belief.   I  said  that  I  was  sure. 

Mr.  Wescott:  Permit  me,  Mr.  Chairman,  to  read  from  the  remarks  of  the  gentle- 
man from  Culpeper  on  yesterday  afternoon: 

Another  objection  which  has  been  raised  to  this  measure  is  that  it  is  totally  unpre- 
cedented either  in  the  legislative  or  constitutional  history  of  the  country.  I  am  sure 
my  friend  from  Accomac  did  not  know  that  that  statement  was  wrong,  or  he  would  not 
have  made  it;  but  the  fact  is  that  it  is  a  mistake.  In  the  State  of  Mississippi  they  have 
this  law  now. 

Let  me,  in  the  first  instance,  ask  your  attention  to  the  law  of  Mississippi,  and  per- 
mit me  to  say  to  you  that  if  I  am  capable  of  forming  any  definite  or  intelligent  conclu- 
sion from  the  reading  of  the  statute,  the  gentleman  was  never  more  mistaken  in  his  life 
than  when  he  asserted  upon  this  floor  that  they  had  this  law  in  the  State  of  Mississippi, 
or  that  there  was  any  element  of  mistake  or  wrong  statement  in  any  remarks  of  my 
own  to  which  he  was  then  referring,  I  do  not  mean  to  say  that  there  are  not  certain 
features  of  this  measure  that  have  been  enacted  into  law;  but  that  it  as  a  substantial 
whole  has  never  found  place  in  any  provision  in  the  constitution  of  any  State,  or  in  the 
statute  law  of  any  State  of  the  Union. 

I  say  that  this  law  does  not  exist  in  the  State  of  Mississippi,  and  whilst  I  cannot  go 
into  detail  and  point  out  to  you  the  differences  between  the  two  laws,  I  can  point  out 
some  materiar  elements  of  difference,  which  will  suffice  to  demonstrate  the  accuracy  of 
my  former  statement. 

For  instance,  the  provison  in  the  statute,  not  in  the  Constitution  of  Mississippi,  is 
that  "a  license  shall  not  be  granted  to  any  person  to  retail  liquors  in  less  quantites  than 
one  gallon,  unless  the  applicant  shall  first  produce  a  petition  for  the  issuance  of  such 
license,  recommending  the  applicant  to  be  of  good  reputation,  and  a  sober  and  suitable 
person  to  receive  such  license;"  mark  you,  the  first  difference  between  these  two  pro- 
visions exists  in  this,  that  in  Mississippi  the  law  is  not  local  or  special,  but  applies  to 
every  foot  of  the  territory  of  the  State.  In  the  second  place  it  requires  the  petition  to  be 
signed  by  a  majority  of  the  legal  voters — I  believe  that  has  been  corrected  by  amend- 
ment, but  at  the  time  the  gentleman's  remarks  were  made  he  was  addressing  himself, 
and  so  was  I,  to  this  provision  as  reported.  There  is  another  difference.  There  stUI 
exists  a  more  fundamental  and  radical  difference  than  either  of  those  to  which  I  have 
directed  your  attention. 

It  is  this:  That  in  Mississippi,  the  petition  has  to  state  that  the  applicant  "is  of 
good  reputation,  and  a  sober  man  and  suitable  person  to  receive  such  license,"  while 
under  the  provision  contained  in  the  article  under  discussion,  no  license  whatever  shall 
issue  to  any  person  unless  he  present  a  petition  signed  by  a  majority  of  the  legal  voters 
of  the  voting  precincf  in  which  the  applicant  proposes  to  sell  liquor  indicating  that  it  is 
the  wish  of  the  signers  that  such  license  should  be  granted. 

The  difference  between  the  measure  sought  to  be  incorporated  into  the  fundamen- 


DEBATES  OE  TKE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA.  2607 

tal  law  of  this  Commonwealth  and  the  statute  of  Mississippi  is  this,  that  in  Mississippi 
the  opinion  of  the  citizens  of  the  district  is  sought  to  be  obtained  as  to  the  qualifica- 
tions and  fitness  of  the  applicant,  while  by  the  law  which  now  exists  in  the  State,  and 
which  by  this  anamolous  provision  is  to  remain  in  force,  that  question  is  relegated  to 
the  judge,  to  be  determined  upon  sworn  testimony.  In  this  unprecedented  piece  of 
legislation  the  petition  speaks  not  as  to  whether  the  applicant  is  a  fit  and  suitable  per- 
son, not  whether  he  possesses  the  essential  qualifications  which,  under  the  theory  of 
that  law  he  is  required  to  possess;  but  it  is  sought  to  vest  a  majority  by  petition  with 
the  right  to  reverse  the  previous  determination  of  a  majority  of  the  legal  voters  ex- 
pressed at  the  polls  upon  that  question,  and  to  determine  upon  the  main  question 
whether  or  not  a  license  shall  issue  at  all. 

More  than  that,  gentlemen,  there  is  one  other  difference.  In  the  Mississippi  statute 
ample  protection  is  provided  against  signatures  which  are  not  genuine  and  do  not  repre- 
sent the  wish  of  the  person  whose  name  purports  to  be  signed  to  them  by  a  provision 
which  requires  that  before  the  application  for  a  license  shall  be  considered,  the  petition 
shall  be  published  at  least  three  weeks,  to  the  end  that  the  people  may  know  who  has 
petitioned  and  whose  names  purport  to  be  signed  thereto. 

Mr.  Dunaway:  As  to  the  matter  just  spoken  of  by  the  gentleman  from  Accomac, 
of  course  if  this  measure  is  adopted  in  the  Constitution,  legislative  action  will  be  neces- 
sary in  regard  to  the  details  just  spoken  of.  I  want  to  ask  the  question,  if  you  do  not 
have  the  same  objection,  just  alleged,  against  this  measure,  that  may  now  be  urged 
against  the  petition  for  local  option.    There  is  nothing  said  there  about  publishing. 

Mr.  Wescott:  Mr.  Chairman,  I  submit  that  my  clerical  friend  is  not  as  good  a 
lawyer  as  he  might  have  been,  in  the  short  time  that  he  devoted  himself  to  the  practice 
of  law,  or  he  would  not  have  asked  that  question.  This  purports  to  be  a  complete  legisla- 
tive provision,  and,  so  far  as  I  know,  requires  no  supplemental  legislation  to  make  it 
effectual.  It  is  operative  from  the  time  this  Constitution  is  adopted,  if  it  ever  has  that 
good  fortune. 

I  am  aware  that  this  matter  has  already  occupied  considerable  time  in  its  discus- 
sion, and  I  am  extremely  loath  to  continue  it,  but  let  me  again  ask  your  attention  to  the 
remarks  of  the  gentleman  from  Culpeper.    He  says: 

I  call  my  friend's  attention — and  I  take  it  was  myself  to  whom  he  referred — to  the 
fact  that  in  the  great  State  of  Missouri,  one  of  the  most  progressive  in  the  United 
States,  they  have  a  very  much  more  stringent  principle  than  that  w^hich  is  announced 
here,  and  that  is,  that  no  liquor  license  can  be  granted  until  a  petition  for  it  is  signed 
by  a  majority  of  the  tax-paying  voters  of  every  precinct  in  the  State.  That  is  much 
more  stringent  than  the  resolution  which  has  been  reported  from  this  committee — not 
voters,  but  a  majority  of  the  tax-paying  voters,  and  the  guardians  of  infants  who  own 
property  in  the  district. 

I  only  refer  to  the  Missouri  statute,  Mr.  Chairman,  for  the  purpose  of  demonstrat- 
ing the  facts  that  I  was  not  wrong  when  I  said  this  legislation  was  unprecedented  in 
any  Constitution  or  statute.  From  the  fact  that  this  paragraph  follows  in  close  succes- 
sion upon  the  other  I  have  read,  it  is  manifest  that  the  gentleman  desired  to  enumerate 
the  State  of  Missouri  as  well  as  Mississippi  in  contradiction  of  my  statement.  I  want 
to  direct  3'our  attention  to  the  marked  differences  between  the  measure  that  exists  in 
Missouri,  under  statute,  and  that  which  it  is  proposed  to  incorporate  into  our  Constitu- 
tion. The  statute  in  Missouri  is  in  no  wise  similar  to  the  statute  which  is  sought  to  be 
incorporated  here.  It  requires  a  majority  of  the  assessed  tax-payers  anfl  the  guardian 
of  infants  owning  property  in  the  block  or  square  in  which  the  dram-shop  is  to  be  kept, 
to  sign  the  petition  for  a  license,  in  every  city  or  incorporated  town  of  2,000  inhabi- 
tants or  over.  I  need  not  emphasize  this  difference.  It  is  required  in  every  city 
or  incorporated  town  of  2,000  inhabitants  or  more,  a  majority  of  the  tax-paying  voters 
owning  property,  including  the  guardians  of  minors  owning  property  in  the  block  or 
square  where  the  dram-shop  is  to  be  located,  to  sign  a  petition.    That  is  a  provision 


2608 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


which  exists,  under  city  ordinances,  in  many  of  the  cities  of  the  Union,  and  is  one,  the 
wisdom  of  which  I  most  heartily  commend.  Then  there  is  a  further  provision  that  in 
any  city  containing  less  than  2,000  inhabitants  and  in  any  incorporated  town  contain- 
ing less  than  2,000  inhabitants,  and  in  any  municipal  township  containing  less  than  2,000 
inhabitants,  a  majority  of  assessed  tax-paying  citizens,  and  guardians  of  minors  owning 
property  therein,  and  in  the  block  and  square  in  which  the  dram-shop  is  to  be  kept, 
shall  sign  the  petition.  Let  me  call  your  attention  to  another  difference.  Under  this 
■anom.alous  provision  it  is  applicable  only  to  the  counties  of  the  State  and  magisterial 
districts  of  counties  where  local  option  does  not  obtain.  The  Missouri  statute  deals 
with  cities,  incorporated  towns,  and  with  municipal  townships. 

"  Municipal  townships  "  is  perhaps  an  expression  with  which  most  of  you  are  not 
familiar.  I  have  pursued  the  investigation  into  the  statutes  of  Missouri  to  ascertain 
what  a  municipal  township  is,  and  I  find  that  there  is  a  general  statute  providing  that 
rural  districts  may  be  incorporated  into  municipal  townships  with  the  right  to  sue  and 
be  sued,  to  issue  bonds,  and  with  practically  every  other  right  that  every  other  muni- 
cipal corporation  has  by  the  vote  of  a  majority  of  the  legal  voters  of  the  township 
sought  to  be  incorporated.  There  stands  out  the  difference  to  which  the  gentleman 
from  Page  referred  in  bold  relief.  In  Missouri  they  seek  to  deal  with  this  liquor  traffic, 
this  blighting  curse,  as  the  gentleman  from  Lancaster  calls  it,  and  in  which  I  heartily 
concur,  in  the  populous  centers  where  that  curse  is  most  potential  for  evil;  but  when 
they  come  down  to  these  portions  of  the  rural  section  of  the  State  that  are  not  incor- 
porated into  municipal  townships,  it  does  not  apply  at  all.  The  signers  are  to  be  the 
assessed  tax-payers,  instead  of  the  legally  qualified  voters.  The  allusion  of  the  gentle- 
man to  the  Constitutions  of  Texas  and  Kentucky  are  justified  only  in  so  far  as  those 
Constitutions  contain  the  provision  that  the  General  Assembly  shall  do  that  which  our 
General  Assembly  has  long  since  done,  towit,  enact  local  option  laws.  That  is  the  only 
provision  in  the  Constitution  of  any  State  bearing  upon  this  subject  that  I  have  been 
able  to  find, -or  that  the  gentleman  from  Culpeper  has  been  able  to  find,  although  there 
may  be  others. 

Just  one  word  more  in  conclusion.  It  has  been  said  that  the  statement  which  I 
made  upon  the  floor  and  which  I  stated  at  the  time  I  quoted  from  one  of  the  most  dis- 
tinguished clergymen  of  the  State,  which  appeared  in  public  print,  that  local  option 
prevailed  in  fifty-five  counties  of  the  State,  was  a  mistake.  I  adverted  to  it  in  connec- 
tion with  the  statement  that  this  was  special  and  local  legislation  in  the  Constitution, 
in  that  it  did  not  apply  to  all  of  the  State  or  to  all  of  the  people  of  the  State.  It  has 
been  said  that  local  option  applies  only  partially  in  some  of  those  counties.  I  knew 
that  to  be  the  fact,  and  I  did  not  mean  to  state  to  the  contrary.  But  I  think  the  gen- 
tleman might  as  well  have  let  that  fact  rest  and  not  have  brought  it  conspicuously  to 
the  front,  for  it  demonstrates  as  nothing 'else  can,  the  fact  that  this  legislation  is  local, 
special  and  unheard  of  in  a  Constitution,  which  should  embrace  the  fundamental  prin- 
ciples of  the  law  applicable  to  every  foot  of  territory  in  the  State  and  to  every  class 
of  citizens  of  the  State,  except  where  discriminations  may  be  made  between  residents 
of  cities  and  rural  districts.  If  we  enact  this  into  our  Constitution  we  find  that  in  per- 
haps twenty-five  counties  of  this  State  a  provision  of  the  Constitution  may  be  in  full 
force  and  effect  in  one  magisterial  district  of  a  county,  and  yet  in  the  other  two,  three 
or  four  magisterial  districts  of  the  same  county  that  constitutional  provision  is  a  dead 
letter,  by  the  express  terms  of  the  provisions  thereof.  Anomalous,  unprecedented,  crazy- 
quilt  patch-work!  I  reiterate  every  arraignment  that  I  have  heretofore  attempted  to 
make  against  this  measure.  It  is  said  by  those  gentlemen  who  advocate  this  article 
that  they  are  giving  adherence  to  principle  and  they  talk  with  great  earnestness  and 
eloquence  when  they  contend  for  neighborhood  rule.  No  man  believes  in  that  more 
heartily  and  sincerely  than  I  do. 

They  say  this  is  neighborhood  rule.  Let  me  suggest  to  some  of  these  gentlemen 
who  are  displaying  such  zeal  in  behalf  of  this  questionable  measure  that  if  the  wish  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OE  YIRGIXIA. 


2609 


change  the  provisions  of  the  law  in  the  State  of  Virginia  upon  this  question  and  to 
bring  it  down  to  neighborhood  control  all  they  have  to  do  is  to  get  the  General  Assem- 
bly TO  amend  the  local  option  law  and  provide  that  you  shall  hold  upon  the  petition  of 
a  certain  number  of  voters,  a  local  option  election  in  a  voting  precinct,  or  a  less  sub- 
division of  the  county,  than  under  the  present  terms  of  the  law  can  be  held.  By  this 
method  the  relief  of  this  admirable  principle,  for  which  the  gentlemen  contend  with 
such  zeal  and  such  eloquence,  will  be  obtained.  It  was  not  deemed  wise  either  by  the 
advocates  of  that  measure  or  by  the  General  Assembly  which  passed  the  local  option 
laws  to  make  the  provisions  of  the  local  option  law  applicable  fo  any  smaller  subdivison 
than  a  magisterial  district.  I  wish  to  urge  upon  the  gentleman  from  Culpeper  and 
Lancaster,  and  others  who  insist  upon  inserting  this  measure  into  our  constitution, 
that  the  very  object  which  they  profess  to  be  seeking  along  that  line,  the  very  happy 
result  which  they  tell  you  will  follow  from  this  measure  if  embodied  into  our  Constitu- 
tion, can  be  attained  with  as  great  and  even  greater  facility  and  more  effectually  by 
such  an  amendment  to  the  local  law  itself,  than  by  the  insertion  of  this  article  into 
our  Constitution. 

Mr.  Barbour:  Mr.  Chairman,  I  do  not  desire  to  detain  the  Convention  very  long 
and  will  not  attempt  to  say  anything  in  response  to  the  remarks  of  the  gentleman 
intended  to  show  that  I  was  mistaken  in  reference  to  the  statutory  provisions  in  Miss- 
issippi. Notwithstanding  his  hair-splitting,  I  still  assert  that  the  provisions  of  the  Miss- 
issippi statute  are  substantially  the  same  as  this,  but  this,  of  course,  does  not  contain 
everything  that  is  in  that  statute.  It  has  been  one  of  my  arguments  before  this  com- 
mittee that  it  was  not  a  statute  and  that  all  of  these  matters  of  detail  were  left  to  the 
Legislature,  where  they  properly  belong.  The  gentleman  sought,  however,  to  show 
that  I  was  mistaken  in  reference  to  the  statute  of  ]Missouri  and  I  desire  to  read  this 
portion  of  Section  2997,  which  bears  on  this  matter: 

It  shall  not  be  lawful  for  any  county  court  in  this  State,  or  clerk  thereof  in  vaca- 
tion, or  any  other  authority,  to  grant  any  license  to  keep  a  dramshop  in  any  town  or 
city  containing  two  thousand  inhabitants  or  more,  until  a  majority  of  the  assessed  tax- 
paying  citizens  and  guardians  of  minors  owning  property  in  the  block  or  square  in 
which  the  dramshop  is  to  be  kept,  shall  sign  a  petition  asking  for  such  license  to  keep 
a  dramshop  in  such  block  or  square,  in  such  town  or  city;  nor  in  any  city  containing 
less  than  two  thousand  inhabitants,  nor  in  any  incorporated  town  or  municipal  township, 
until  a  majority,  both  of  the  assessed  tax-paying  citizens,  and  guardians  of  minors  own- 
ing property  therein,  and  in  the  block  or  square  in  which  the  dramshop  is  to  be  kept, 
shall  sign  a  petition  asking  for  such  license  to  keep  a  dramshop  therein, 

Mr.  Wescott:    That  is  exactly  the  way  I  read  it. 

Mr.  Barbour:  Except  that  you  inserted  the  words  "incorporated  municipal  town," 
which  does  not  appear  in  the  statute.  In  Missouri  the  counties  are  divided  into  town- 
ships just  as  in  the  State  of  Virginia  they  are  divided  into  magisterial  districts. 

Mr.  Wescott:  I  think  if  the  gentleman  had  pursued  his  investigation  a  little 
further,  as  I  have  done,  he  would  have  ascertained  that  my  statement  is  entirely  borne 
out  by  the  very  volume  he  has  in  his  hand.  The  law  of  that  State  provides  that  muni- 
cipal townships  may  be  incorporated  by  the  residents  of  that  township,  by  election. 
It  is  not  an  arbitrary  sub-divison,  as  in  our  State,  into  magisterial  districts  and  voting 
precincts;  but  there  is  to  be  an  election  to  decide  whether  there  shall  be  incorporated 
municipal  townships  and  when  that  is  settled  the  statute  determines  what  shall  be 
their  legal  right  and  status. 

]\Ir.  Barbour:  If  the  gentleman  had  only  held  his  fire  I  would  h?.ve  shown  him  the 
authority  upon  which  I  base  my  statement  and  read  to  him  the  authority  in  the  Consti- 
tution which  provides  for  these  townships.  They  have  a  S3^stem  under  which  these 
townships  may  form  a  tovvTiship  organization  and  under  that  system  each  township 
has  control  of  its  local  affairs,  just  like  a  county  has. 

This  is  a  provision  of  the  Constitution  upon  this  subject: 


2610  DEBATES  OF  THE  COI^STITUTIOXAL  CONVENTION  OF  VIRGINIA. 

The  General  Assembly  may  provide,  by  general  law,  for  township  organization 
under  which  any  county  may  organize  whenever  a  majority  of  the  legal  voters  of  such 
county,  voting  at  any  general  election,  shall  so  determine;  and  whenever  any  county 
shall  adopt  township  organization,  so  much  of  this  Constitution  as  provides  for  the 
management  of  county  affairs,  and  the  assessment  and  collection  of  the  revenue  by 
county  officers,  in  conflict  with  such  general  law  for  township  organization  may  be  dis- 
pensed with,  and  the  business  of  said  county,  and  the  local  concerns  of  the  several  town- 
ships therein,  may  be  transacted  in  such  manner  as  may  be  prescribed  by  law. 

So  it  permits  these  counties  to  take  away  from  the  central  county  authorities 
their  control  over  local  revenues,  and  place  it  in  these  municipal  townships.  That  is 
a  provision  of  the  Constitution. 

I  submit  that  my  remarks  on  these  two  provisions  are  absolutely  correct. 

The  Chairman:  The  question  is  upon  the  adoption  of  the  substitute  offered  by 
the  gentleman  from  Augusta,  which  the  Secretary  will  read. 

The  Legislature  shall  have  full  power  of  enacting  local  option  or  dispensary  laws, 
or  any  other  laws,  controlling,  regulating  or  prohibiting  the  manufacture  or  sale  of 
intoxicating  liquors. 

The  substitute  was  agreed  to,  there  being  on  a  division,  ayes,  28;  noes,  24. 
The  Chairman:    If  there  are  no  further  amendments  to  Section  2  the  Secretary 
will  read  Section  1  of  the  last  article  of  the  report. 
Future  changes  in  the  Constitution. 

Sec.  1.  Any  amendment  or  amendments  to  the  Constitution  may  be  proposed  in  the 
Senate  and  House  of  Delegates,  and  if  the  same  shall  be  agreed  to  by  a  majority  of  the 
members  elected  to  each  of  the  two  houses,  such  proposed  amendment  or  amendments 
shall  be  entered  on  their  journals,  with  the  ayes  and  noes  taken  thereon,  and  referred  to 
the  General  Assembly  to  be  chosen  at  the  next  general  election  of  Senators  and  mem- 
bers of  the  House  of  Delegates,  and  shall  be  published  for  three  months  previous  to  the 
time  of  making  such  choice.  And  if  in  the  General  Assembly  so  next  chosen  as  afore- 
said, such  proposed  amendment  or  amendments  shall  be  agreed  to  by  a  majority  of  all 
the  members  elected  to  each  house,  then  it  shall  be  the  duty  of  the  General  Assembly 
to  submit  such  proposed  amendment  or  amendments  to  the  people,  in  such  manner  and 
at  such  times  as  the  General  Assembly  shall  prescribe;  and  if  the  people  shall  approve 
and  ratify  such  amendment  or  amendments  by  a  majority  of  the  electors  qualified  to 
vote  for  members  of  the  General  Assembly  voting  thereon,  such  amendment  or  amend- 
ments shall  become  part  of  the  Constitution. 

The  Chairman:  Are  there  any  amendments  to  Section  1?  If  not,  the  Secretary 
will  read  Section  2. 

Sec.  2.  At  such  time  as  the  General  Assembly  may  by  law  provide,  the  question, 
"  Shall  there  be  a  convention  to  revise  the  Constitution  and  amend  the  same?"  shall 
be  decided  by  the  electors  qualified  to  vote  for  members  of  the  General  Assembly; 
and  in  case  a  majority  of  the  electors  so  qualified,  voting  at  such  election,  shall  decide 
in  favor  of  a  convention  for  such  purpose,  the  General  Assembly,  at  its  next  session, 
shall  provide  by  law  for  the  election  of  delegates  to  such  convention. 

Mr.  Wysor:    I  have  an  amendment  I  desire  to  offer  to  that  section. 
In  line  3,  Section  2,  strike  out  the  word  "amend"  and  insert  the  words  "  propose 
amendments  to." 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  hope  the  committee  will  settle  the 
question  raised  by  that  amendment  one  way  or  the  other.  You  will  observe  that  the 
committee  has  reported  the  words  contained  in  the  present  Constitution.  Section  2 
reads: 

At  such  time  as  the  General  Assembly  may  by  law  provide,  the  question.  Shall 
there  be  a  convention  to  revise  the  Constitution  and  amend  the  same?  shall  be  decided 
by  the  electors,  etc. 

In  the  debate  before  the  Convention  as  to  v^hether  this  question  should  be  sub- 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOis"  OE  VIRGINIA. 


2611 


mitted  to  the  people,  whether  we  were  compelled  to  do  it  or  whether  we  should  pro- 
claim it,  that  clause  was  relied  upon  by  gentlemen  in  the  Convention  to  show  that  we 
had  a  right  to  proclaim  the  Constitution.  My  own  view  of  it  is  that  that  is  not  a 
proper  construction  to  put  upon  the  words;  that  the  words  do  not  give  us  any  such 
power;  but  it  was  so  contended  in  this  body,  with  a  great  deal  of  force,  by  many  gen- 
tlemen. Certainly  that  is  an  ambiguous  expression,  then,  so  far  as  the  Convention  is 
concerned.  It  was  the  most  forcible  argument  made  here  by  gentlemen  who  were  in 
favor  of  proclaiming  the  Constitution.  They  could  get  no  authority  anywhere  else. 
The  party  had  in  its  platform  a  provision  that  it  would  submit  the  Constitution  to  the 
electorate,  and  it  could  mean  nothing  but  the  entire  electorate.  The  entire  electorate 
constitute  the  constituency  of  this  body,  and  they  gave  this  body  all  the  power  it  has. 
That  is  the  only  electorate  to  which  you  would  have  any  right  to  submit  the  Constitu- 
tion. I  do  not  believe  that  there  is  a  single  judge  in  the  Supreme  Court  of  Virginia 
who  would  hold  that  we  have  the  right  to  proclaim  the  Constitution.  The  great  argu- 
m.ent  made  was  that  the  Constitution  uses  the  words,  "Shall  there  be  a  Convention  to 
revise  the  Constitution  and  amend  the  same,"  and  that  that  meant  we  had  the  power  to 
amend  it.  I  have  inserted  here  in  my  amendment  the  words,  "at  such  time  as  the 
General  Assembly  may  by  law  provide,  the  question.  Shall  there  be  a  Convention  to  re- 
vise the  Constitution  and  propose  amendments  to  the  same?  shall  be  decided,"  etc. 

I  wish  you  would  settle  it  one  way  or  the  other.  If  you  cannot  adopt  that  amend- 
ment, let  us  put  in  the  language  "Shall  there  be  a  Convention  to  revise  the  Constitution 
and  proclaim  the  same."  If  that  is  what  it  means,  and  what  the  majority  want,  let  us 
put  it  in  there.  Do  not  let  us  leave  it  ambiguous  and  uncertain  in  its  meaning.  The 
debates  in  the  Convention  have  not  yet  settled  it,  and  I  want  it  settled  one  way  or  the 
other.  If  this  amendment  is  voted  down,  let  the  gentleman  who  believes  the  Constitu- 
tion ought  to  be  proclaimed  offer  an  amendment  to  put  in  the  word  "proclaimed."  Let 
us  make  it  certain  and  definite  what  the  Constitution  means.  I  think  it  is  our  duty  to 
do  it,  so  that  another  Convention  may  not  have  a  great  debate  over  that  question. 

I  hope  it  will  be  the  pleasure  of  the  body  to  agree  to  the  amendment. 

Mr.  Harrison:  Mr.  Chairman,  I  have  been  with  the  gentleman  from  Pulaski  (Mr. 
Wysor)  in  the  contention  that  this  body  has  no  power  to  proclaim  the  Constitution.  I 
do  not  derive  that  from  the  language  of  the  Constitution  itself,  but  from  the  act  under 
which  the  members  of  this  body  have  been  elected.  My  theory  is  that  no  provision  that 
we  put  in  the  Constitution  can  in  any  way  affect  the  right  of  the  people  to  call  a  Con- 
stitutional Convention  when  they  please,  and  to  repose  in  the  members  of  that  Consti- 
tutional Convention  such  powers  as  they  choose  to  delegate  to  them.  The  basic  princi- 
pal of  constitutional  government  is  that  the  people  have  the  right  to  change  and  alter 
their  government  in  such  way  and  in  such  manner  as  they  choose,  and  therefore  any  con- 
stitutional provision  which  has  any  reference  whatever  to  any  future  Constitutional  Con- 
vention is  absolutely  nugatory  and  void,  because  it  is  undertaking  by  this  Convention 
to  limit  and  restrict  the  powers  of  another  Constitutional  Convention,  which  this  Con- 
vention has  no  right  to  do. 

If  we  put  those  words  in  there  the  effect  of  it  vfill  be  this:  It  might  be  urged  that 
the  people  will  have  enoug'h  power  to  call  a  Constitutional  Convention  with  the  power 
to  proclaim.  I  think  it  would  be  a  very  unfortunate  thing  that  the  people  should  be  re- 
stricted. I  believe  the  provision  will  be  wholly  nugatory,  but  still  it  might  be  urged 
hereafter  that  a  Constitutional  Convention  could  never  be  called  with  power  to  proclaim 
a  Constitution. 

We  cannot  look  into  the  future  and  say  that  a  time  will  not  arise  when  it  v/ill  be 
essential  to  have  that  power.  It  was  necessary  in  1861,  because  we  had  no  opportunity 
to  submit  a  constitutional  amendment  to  the  people,  and  in  time  of  war  and  excitement 
it  may  be  that  we  will  not  have  the  opportunity  to  submit  the  question  for  ratification, 
when  it  may  be  essential  that  the  Convention  should  have  the  power  of  proclamation. 
So  I  do  not  think  those  words  ought  to  go  in.  I  think  it  would  be  absolutely  nugatory 
and  void,  but  at  the  same  time  it  would  limit  the  free  discussion  of  the  question. 


2612 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  wish  to  propose  a  substitute  for  the  amendment  of  the  gentleman  from  Pulaski, 
which  I  think  would  carry  out  his  purpose.  This  section  leaves  out  these  words,  which 
I  think  ought  to  be  in  there:  "At  the  general  election  to  he  held  in  the  year  1888,  and 
each  twentieth  year  thereafter,  and  also  at  such  times."  I  think  the  question  as  to 
whether  there  should  be  a  Constitutional  Convention  ought  to  be  submitted  to  the  people 
at  stated  periods.  I  do  not  believe  we  ought  to  leave  it  merely  discretionary  with  the 
Legislature  to  submit  the  question  when  they  think  proper.  I  think  we  ought  to  pro- 
vide that  at  certain  stated  periods  the  question  shall  be  submitted  to  the  people.  I 
think  the  provision  of  the  gentleman  from  Pulaski  should  then  be  adopted,  as  suggested. 
When  that  question  is  submitted  to  the  people,  it  ought  to  be  coupled  with  the  power 
simply  to  propose  amendments  and  not  to  proclaim  them. 

Mr.  Wysor:  Mr.  Chairman,  I  have  changed  the  wording  of  my  amendment,  and  I 
ask  that  it  may  be  read. 

In  line  3,  Section  2,  strike  out  the  word  "  amend  "  and  insert  in  lieu  thereof  the 
words  "  proposed  or  proclaimed  "  and  after  the  word  "  same  "  in  the  same  line,  add  the 
words  "  as  the  people  m^ay  elect." 

I  have  offered  that  amendment  so  as  to  make  it  comport  with  the  views  of  the  gen- 
tleman from  Winchester  (Mr.  Harrison),  with  whom  I  agree.  I  do  not  deny  the  right 
of  the  people  to  give  the  Convention  power  to  proclaim  a  Constitution,  but  they  must  do 
so  directly  and  unmistakably.  The  amendment  leaves  the  whole  matter  with  the  peo- 
ple as  to  whether  they  are  going  to  have  a  Convention  to  propose  a  Constitution  or  pro- 
claim it.    Certainly  they  ought  to  have  that  power  and  that  right. 

Then  you  will  not  have  any  wrangle  or  dispute  about  it,  because  the  question  will 
be  submitted  to  them,  and  they  will  say  whether  they  want  you  to  proclaim  it  or  pro- 
pose it. 

Mr.  Gillespie:  I  propose  to  amend  the  amendment  of  the  gentleman  from  Pulaski 
by  striking  out  of  his  amendment  the  words  "or  proclaim." 

Mr.  Wysor:  Mr.  Chairman,  I  cannot  agree  to  that  amendment.  My  own  views  are 
that  the  Constitution  ought  always  to  be  proposed,  but  I  think  the  people  have  a  right 
tc  authorize  the  Convention  to  proclaim,  and  I  think  it  ought  to  be  so  stated  unmistak- 
ably in  the  Constitution.  When  that  question  is  submitted  to  the  people  they  might 
elect  the  Convention  to  either  proclaim  it  or  propose  it. 

Mr.  Barbour:  May  I  ask  the  gentleman  if  he  does  not  think  they  should  also  have 
a  right  to  elect  a  Convention  with  discretion  to  do  either  that  the  Convention  thinks 
wise? 

Mr.  Wysor:    Yes,  sir. 

The  Chairman:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Tazewell. 

The  amendment  was  rejected. 

The  Chairman:  The  question  recurs  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Pulaski. 

The  amendment  was  rejected. 

Mr.  Harrison:    I  now  offer  an  amendment.    It  is  simply  to  give  the  people  the 
power  to  vote  on  this  question  whether  the  Legislature  wants  them  to  do  so  or  not. 
Insert  at  the  beginning  of  Section  2,  the  following: 

At  the  general  election  to  be  held  in   ,  and  in  every  twentieth  year  there- 
after, the  question,  shall  there  be  a  Convention  to  propose  amendments  to  the  Consti- 
tution, shall  be  decided  by  the  electorate  qualified  to  vote  for  members  of  the  General 
Assembly. 

The  committee  has  stricken  out  the  power  of  the  people  to  call  a  Convention  unless 
the  question  is  submitted  to  them  by  the  General  Assembly.  Under  the  present  Con- 
stitution they  have  the  right  to  vote  on  that  question,  whether  the  Legislature  wants 


DEBATES  OF  THE  COXSTITrTIOXAL  COXVEXIIOX  OF  VIRGIXIA. 


2613 


it  or  not.  When  a  Convention  is  called  under  those  circumstances,  I  think  it  ought 
to  be  simply  to  propose  amendments  and  not  to  proclaim  them. 

Mr.  James  W.  Gordon:  ^Ir.  Chairman,  I  move  to  amend  the  amendment  offered 
by  the  gentleman  from  Winchester  (Mr.  Harrison)  by  striking  out  that  clause  as  to 
the  proposition,  and  to  leave  the  introductory  part  of  the  amendment  just  as  he  has 
offered  it;  that  is,  to  provide  for  a  submission  of  the  question  whether  there  shall  be 
a  Convention  to  revise  the  Constitution  and  amend  the  same  as  it  is  in  the  present 
Constitution,  to  be  submitted  each  twentieth  year,  because  otherwise  we  would  have 
a  legislative  oligarchy  in  the  Commonwealth,  but  not  to  provide  there  that  the  people 
are  called  upon  to  vote  to  have  a  Constitution  proposed  to  them.  That  is  the  very 
thing  we  just  voted  doT\-n  in  the  amendment  of  the  gentleman  from  Tazewell  (]\Ir. 
Gillespie) . 

Mr.  Hatton:  Mr.  Chairman,  as  a  member  of  this  committee,  just  allov;-  me  a 
moment  to  explain  to  the  Committee  of  the  Whole  what  the  changes  are  that  ha'v'e  been 
proposed  by  the  standing  committee.  Section  1  is  just  the  same  as  it  was  in  the  old 
Constitution.  Section-  2  in  the  Constitution  tmder  which  we  are  now  living,  the  section 
Is  as  follows: 

At  the  general  election  to  be  held  in  the  year  ISSS,  and  in  each  twentieth  year 
thereafter,  and  also  at  such  time  as  the  General  Assembly  may  by  law  provide,  the 
question,  shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same? 
Shall  be  decided  by  the  electors  qualified,  &c. 

Then,  at  the  close  of  that  section  there  is  this  proviso. 

Provided;  that  no  amendment  or  revision  shall  be  made  which  shall  deny  or  in 
any  way  impair  the  right  of  suffrage  or  any  civil  or  political  right  as  conferred  by  this 
Constitution,  except  for  causes  which  apply  to  all  persons  and  classes  without  distinc- 
tion. 

The  committee  has  simply  left  out  this  last  provision,  providing  that  no  amend- 
ment or  revision  shall  be  made  to  the  Constitution  to  deny  or  in  any  way  impair  the 
right  of  suffrage  or  any  civil  or  political  right  as  conferred  by  the  existing  Constitution, 
except  for  causes  which  apply  to  all  persons  and  classes  without  distinction.  Those 
words  have  been  entirely  eliminated.    We  have  also  eliminated  these  words: 

At  the  general  election  to  be  held  in  the  year  ISSS,  and  in  each  twentieth  year 
thereafter. 

We  now  provide  that  the  question,  "Shall  there  be  a  Convention  to  revise  the 
Constitution?"  shall  be  submitted  to  the  qualified  electors  of  the  State  whenever  the 
GenerpJ  Assembly  shall  so  provide. 

We  have  omitted  that  provision  which  requires  the  General  Assembly  to  submit 
this  question  every  twentieth  year.  The  experience  of  every  man  in  the  Common- 
wealth is  to  the  effect  that  whenever  this  question  has  been  submitted  by  the  General 
Assembly  under  this  provision,  no  attention  has  been  paid  to  it  by  the  people.  Only 
once  since  the  adoption  of  the  present  Constitution  has  that  question  been  submitted, 
and  when  submitted,  the  people  of  the  Commonwealth  were  absolutely  inattentive  to 
it.  They  were  not  prepared  for  it,  it  was  not  discussed  and  it  went  as  a  dead  letter. 
When  the  people  went  to  the  polls  and  voted,  a  large  majority  of  them  did  not  know 
the  question  was  before  them  or  not. 

The  committee  very  carefully  considered  that.  They  concluded  that  that  provision 
was  an  excrescence  upon  the  Constitution,  and  they  determined  to  eliminate  it  as 
absolutely  useless  and  ineffective.  I  hope  the  Committee  of  the  VvTiole  will  sustain 
the  Standing  Committee  on  that  question. 

The  gentleman  from  Frederick  (Mr.  Harrison)  has  proposed  an  amendment  which 
Involves  another  change.    In  this  present  Constitution  the  form  of  the  question  which 


2614 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEA'TIOiT  OE  VIRGINIA. 


the  Legislature  is  required  to  submit  to  the  people— and  that  has  been  adopted  by  fhe 
committee — is  as  follows: 

Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same? 

The  amendment  of  the  gentleman  from  Frederick  provides  a  change  in  the  form 
of  that  question,  that  a  Convention  shall  only  have  the  power  to  propose  amendments 
to  the  Constitution.  We  hope  this  amendment  will  be  voted  down.  There  should  be 
no  change  in  the  form  of  that  question.  The  question  which  the  Legislature  submits 
to  the  people  to  vote  on  as  to  whether  they  will  have  a  Convention  or  not  is  now  in 
proper  form.  It  is  in  a  form  which  leaves  the  fullest  powers  to  the  people  to  be  exer- 
cised by  their  representatives  in  a  Constitutional  Convention,  and  any  limitation  of 
that  power  is  simply  an  invitation  to  trouble  in  the  Commonwealth. 

I  say  the  Legislature  should  not  be  left  to  frame  the  question  as  they  think  proper. 
The  framing  of  that  question  is  extremely  important,  as  has  been  developed  by  debates 
on  this  floor  in  the  early  days  of  this  Convention  and  it  is  well  for  any  Constitution  to 
provide  the  form  of  that  question,  because  any  Constitutional  Convention  that  would 
take  any  drastic  action  in  the  way  of  restricting  the  power  of  the  people  in  that  regard 
would  invite  serious  trouble  in  the  State  where  it  happened. 

I  hope  the  Committee  of  the  Whole  will  make  no  mistake  on  this  subject,  and  I 
think  if  they  change  the  form  of  this  question  they  will  make  a  serious  mistake.  I  ask 
that  the  Committee  of  the  Whole  vote  down  these  amendments. 

Mr.  Wysor:  What  do  you  understand  that  amendment  to  mean;  that  we  shall  pro- 
claim? 

Mr.  Hatton:  No;  I  do  not  understand  it  to  mean  any  such  thing.  I  think  It  puts 
the  question  in  a  form  that  will  provoke  discussion  and  dissention  as  to  its  meaning. 

Mr.  Harrison:  Mr.  Chairman,  I  desire  to  have  the  members  of  the  Committee  of 
the  Whole  understand  the  proposition  I  have  submitted.  The  gentleman  from  Ports- 
mouth (Mr.  Hatton)  has  misunderstood  it.  As  the  law  now  stands,  every  twenty  years 
the  people  have  the  right  to  vote  on  the  question,  without  regard  to  whether  the  Legis- 
lature wants  them  to  do  it  or  not,  whether  they  shall  have  a  Constitutional  Convention 
or  not.  Under  the  change  the  committee  has  proposed,  that  power  is  taken  away,  and 
I  think  that  is  very  wrong,  because  it  seems  to  me  the  people  ought  to  have  a  right  at 
certain  stated  intervals,  whether  the  Legislature  wants  it  or  not,  to  vote  on  the  question 
as  to  whether  or  not  they  shall  have  a  Constitutional  Convention. 

The  amendment  I  propose  does  not  take  away  the  power  of  the  Legislature  to  frame 
the  question  as  the  Constitution  now  has  it.  The  only  change  is  that  when  they  vote  on 
this  question  without  the  interposition  of  the  Legislature,  they  will  vote  simply  on  the 
question  as  to  whether  the  Convention  that  they  call  together  shall  have  the  power  to 
propose  amendments. 

("Vote,  vote.") 

Mr.  Robertson:  Mr.  Chairman,  I  do  not  know  whether  anybody  will  listen  to  me 
or  not,  but  it  does  seem  to  me  that  this  matter  is  considerably  more  important  than 
the  members  of  this  committee  seem  to  think  it  is.  I  think  the  question  of  what  a 
Convention  shall  do  with  a  Constitution  when  it  is  framed  is  one  of  the  most  important 
that  can  come  before  this  body.  Every  member  of  this  committee  remembers  that  when 
we  first  met  here  we  were  confronted  Avith  a  number  of  questions  with  reference  as  to 
how  we  should  proceed.  In  the  first  place,  the  question  was  raised  as  soon  as  we  got 
into  the  hall  of  the  House  of  Delegates  whether  the  members  of  this  body  should  take 
an  oath  or  not.  None  of  us  knew  and  none  of  us  know  to  this  day  whether  we  should 
have  taken  that  oath  or  not.  We  had  to  decide  here  as  a  deliberative  body,  a  legal 
question,  which  could  only  be  decided  by  judges,  and  we  were  in  no  temper  to  decide 
that  question  in  a  judicial  manner. 

While  we  may  think  this  question  is  not  of  any  importance  to  us  as  individuals,  it 
will  be  of  importance,  perhaps,  to  our  children,  if  they  should  ever  call  for  another 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


2615 


Constitutional  Convention.  I  agree  with  the  gentleman  from  Pulaski  (Mr.  Wysor)  that 
ii  is  an  important  matter;  that  if  we  are  going  to  provide  at  all  in  this  Constitution 
hew  amendment  shall  be  obtained  to  the  Constitution  we  are  framing,  we  should  go 
into  sufficient  detail  in  order  that  the  people  in  that  Convention  will  know  how  they 
can  act.  I,  myself,  would  be  perfectly  willing  to  leave  this  whole  clause  out,  but  if  we 
are  going  to  put  any  clause  in  here'  at  all  providing  how  future  changes  shall  be  made 
in  the  Constitution,  I  respectfully  submit  the  language  should  not  be  so  ambiguous  that 
lawyers  in  any  future  convention  would  differ  as  the  lawyers  have  done  in  this  Con- 
vention as  to  what  the  powers  of  any  future  convention  should  be. 

My  remarks  may  not  be  exactly  pertinent  to  the  matter  at  issue  here.  I  confess 
the  confusion  has  been  so  great  that  I  do  not  know  exactly  what  the  amendment  of  my 
friend  from  Winchester  (Mr.  Harrison)  is;  but  as  I  understand  it,  it  is  that  when  the 
Legislature  submits  to  the  people  every  twenty  years,  it  shall  submit  to  them  the  ques- 
tion whether  the  Constitution  shall  be  proposed  to  the  people  for  their  ratification  or 
not.    Am  I  right  in  that? 

Mr.  Harrison:  My  amendment  is  that  without  the  interposition  of  the  Legislature 
at  all,  that  question  is  to  be  submitted  to  the  people,  and  v^hen  it  is  submitted  in  that 
way  only,  it  is  simply  to  propose  amendments. 

Mr.  Robertson:    And  let  the  people  vote  on  it,  to  ratify  it  afterwards? 

Mr.  Harrison:    Yes,  sir. 

Mr.  Robertson:  Now,  Mr.  Chairman,  I  am  in  favor  of  that.  I  was  in  favor  of  and 
voted  for  the  amendment  of  the  gentleman  from  Pulaski  (Mr.  Wysor) ,  but  that  was 
voted  down.  At  the  proper  time  I  am  going  to  move  to  reconsider  in  order  to  get  the 
vote  of  the  Convention,  when  we  have  more  people  here;  but  I  am  in  favor  of  the 
amendment  of  the  gentleman  from  Winchester,  and  I  want  to  state  briefly  my  reasons 
for  thinking  it  is  proper. 

It  seems  to  me  that  the  power  of  proclaiming  a  Constitution  and  ramming  it  down 
the  throats  of  the  people  is  a  power  that  nobody  ought  to  claim.  I  am  not  going  to 
discuss  the  legal  aspect  of  it.  I  am  aware  of  the  fact  that  we  have  the  right  to  do  it, 
probably,  as  a  legal  proposition,  though  I  think  that  is  very  doubtful.  A  Constitution, 
in  its  nature,  is  an  instrument  which  ties  the  hands  of  the  people.  The  whole  object  of 
a  Constitution  is  for  the  people  to  take  away  from  themselves  powers  that  they  would 
otherwise  have. 

I  do  not  believe  it  is  good  policy  to  ever  proclaim  a  Constitution  in  this  democratic 
America  of  ours.  It  is  bound  to  give  rise  to  discontent,  and  if  there  is  discontent,  the 
Constitution  will  not  work,  as  a  general  proposition.  The  courts  will  have  a  tendency 
to  construe  it  away,  and  it  vdll  practically  amount  to  the  Constitution  not  having  been 
adopted. 

Take  the  Constitution  we  are  framing  here  to-day.  In  nearly  every  provision  we 
are  putting  into  it  there  is  an  honest  and  a  broad  difference  between  us  here  on  this 
floor  as  to  whether  the  provision  ought  to  go  in  or  not.  Some  of  the  most  important 
interests  of  the  Commonwealth  are  being  affected  by  the  work  w^e  are  doing  here.  We 
have  just  gotten  through  with  the  consideration  of  a  question  which  will  affect  this 
Commonwealth  more  than  any  other  question  that  has  been  before  a  Constitutional 
Convention  for  many  years.  People  differ  about  that,  and  differ  widely  and  honestly; 
and  any  man  who  gets  up  on  this  floor  and  says  we  ought  to  proclaim  a  Constitution  and 
ram  it  down  the  throats  of  the  people  simply  because  we  have  the  power  to  do  it  has 
more  courage  and  more  nerve  than  I  have.  I  do  not  believe  it  is  good  policy  ever  to  do 
it.  I  believe  it  is  contrary  to  democratic  principles.  This  is  a  government  of  the  peo- 
ple, by  the  people  and  for  the  people,  and  when  the  people  have  sent  us  here,  even  if 
we  have  the  legal  right,  I  do  not  believe  we  have  the  moral  right,  aside  from  party 
pledges,  to  proclaim  a  Constitution. 

Now,  certainly  when  we  are  providing  for  the  future  we  ought  to  relieve  future 
Conventions  from  the  embarrassment  of  the  questions  that  are  agitating  this  Conven- 


2616 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


tion.  Every  man  here  is  embarrassed  by  the  fact  that  he  does  not  know  exactly  what 
the  powers  of  this  Convention  are.  Some  gentlemen  say  they  know  them.  Some  gen- 
tlemen in  this  Convention  are  very  cocksure  about  everything.  (Laughter.) 

Some  of  them  claim  to  have  all  the  common  sense  in  the  Convention,  and  that  other 
men  who  differ  with  them  have  gloomy  imaginations.  But  there  is  an  honest  differ- 
ence of  opinion  here,  entertained  by  lawyers  who  have  studied  this  question  as  to  our 
power,  and  certainly  if  there  is  no  difference  as  to  the  legal  question,  there  is  a  wide 
difference  as  to  the  moral  question. 

Is  it  not  our  duty,  sitting  here  legislating  for  the  people  of  this  Commonwealth,  provid- 
ing how  the  Constitution  which  we  are  enacting  shall  be  changed  in  the  future,  to  make 
it  so  plain  that  the  men  who  meet  in  any  future  Convention  will  know  exactly  what 
rights  and  powers  they  have.  I  grant  you  the  gentleman  from  Pulaski  is  right,  that  it 
is  a  matter  that  ought  to  be  left  to  the  people.  In  times  of  emergency  the  people  might 
be  willing  to  intrust  the  Convention  with  the  pov/er  of  proclaiming  a  Constitution,  but 
ordinarily  I  do  not  believe  they  would.  I  do  not  believe  the  people  of  Virginia  thought 
any  man  would  get  upon  this  floor  and  talk  about  proclaiming  it;  but  I  can  conceive 
that  in  some  time  of  emergency  that  may  happen,  in  the  future  the  people  might  be 
willing  to  say,  '.'We  will  trust  you  because  the  time  is  short  and  v/e  must  get  a  new 
Constitution  to  meet  some  emergency. 

Therefore,  I  think  this  matter  ought  always  to  be  left  to  the  people;  but  as  the 
Convention  has  voted  that  down,  and  it  is  not  before  this  committee  now,  as  a  substi- 
tute for  that  idea  I  certainly  hope  that  the  committee  will  not  as  a  matter  of  course, 
and  simply  because  a  committee  has  brought  in  a  report  here  about  a  matter  which  has 
not  been  carefully  considered  by  this  Convention,  adopt  the  report  of  the  committee 
and  vote  down  any  amendment  which  gentlemen  may  choose  to  make  here. 

I  am  aware  of  the  fact  that  all  of  us  are  getting  tired  of  this  work.  I  believe  there 
is  a  grov^ring  tendency  in  this  body  to  not  give  due  and  proper  deliberation  to  amend- 
ments that  are  offered  to  the  reports  of  committees.  It  is  a  lazy  and  easy  way  of  doing, 
to  say  the  committee  has  considered  this  question,  and  we  had  better  take  their  report 
rather  than  consider  it;  but,  gentlemen,  if  we  stay  here  until  the  middle  of  next  August, 
it  is  our  duty  to  consider  every  one  of  these  questions. 

I  do  not  believe  this  matter  has  been  gone  into  at  any  great  length  by  the  com- 
mittee. I  do  n(tt  mean  to  say  a  word  in  criticism  of  the  committee,  but  I  do  not  think 
their  attention  has  been  specially  called  to  that  feature  of  the  matter,  and  I  respectfully 
submit  that  we  ought  to  take  time  and  deliberate  about  the  matter.  If  I  am  in  order, 
I  move  that  the  committee  now  rise,  so  that  we  can  consider  it  before  a  vote  is  taken 
upon  it. 

Mr.  Waddill:  Mr.  Chairman,  I  dislike  to  submit  any  remarks  to  this  body,  when 
there  is  a  disposition  to  come  to  a  vote;  but  I  submit  this  is  a  question  of  too  much 
importance  to  be  railroaded  through  in  this  fashion.  I  rise  to  raise  the  point  that  if 
this  Section  3  is  adopted  in  its  present  form,  the  General  Assembly  is  precluded  from 
ever  submitting  the  question  to  the  people  in  any  other  form,  and  the  time  may  come 
when  the  question  should  be,  Shall  there  be  a  Convention  to  revise  and  proclaim  the 
Constitution?  That  has  been  done  in  this  Commonwealth,  and  done  in  very  recent 
years.  After  the  war  the  question  was  submitted  to  the  people,  Shall  the  General 
Assembly  revise  the  article  of  suffrage  and  proclaim  the  same?  That  was  the  question 
that  was  submitted  to  the  people,  and  they  voted  affirmatively  upon  it.  The  General 
Assembly  revised  the  article  upon  suffrage  and  proclaimed  the  same. 

Now,  I  am  in  favor  of  the  proposition  of  the  gentleman  from  Frederick  (Mr.  Har- 
rison), because  at  stated  times  the  people  will  have  the  right  to  vote  upon  the  question 
of  revising  and  having  amendments  proposed.  I  think  the  General  Assembly  should  be 
left  with  a  free  hand  to  submit  this  question  to  the  people  in  any  form  which  they  see 
fit.  I  do  say,  and  I  submit  it  to  the  lawyers  of  this  body,  that  if  we  adopt  this  section 
in  the  form  it  is  presented,  we  run  a  very  serious  risk  of  precluding  the  possibility  of 


DEBATES  OF  THE  C0NSTITUTI0NA£  CONVENTIO^^  OF  VIRGINIA. 


2(517 


ever  submitting  the  question  to  the  people  in  any  other  form.  I  insist  that  this  is  a 
question  of  too  much  importance  to  be  disposed  of  in  the  manner  we  are  attempting  to 
do  it.  It  needs  and  ought  to  have  our  most  serious  thought.  It  is  a  matter  of  great 
importance.  No  graver  question  has  been  before  this  body,  and  I  submit  we  ought  to 
give  it  better  attention  than  we  have  given  it  to-day,  because  it  has  been  sprung  upon 
this  house  in  the  last  half  hour.  It  involves  a  very  serious  question,  and  I  ask  that  it 
be  given  due  consideration,  and  that  we  should  act  discreetly  in  the  matter.  The  propo- 
sition of  the  gentleman  from  Frederick  is  fair.  It  is,  at  stated  elections,  to  submit  the 
question  to  the  people;  and  then,  if  at  any  other  time  the  General  Assembly  sees  fit  to 
submit  it  in  some  other  form,  they  shall  not  be  cut  off  from  the  power  to  do  so. 

Mr.  Wysor:  Mr.  Chairman,  I  want  to  say  to  the  committee  that  I  did  not  know 
this  provision  was  in  this  report  until  this  morning.  When  I  came  here  and  read  it  I 
thought  I  would  offer  an  amendment.  I  agree  with  the  gentleman  who  has  just  taken 
his  seat  (Mr.  Waddill)  that  this  is  one  of  the  most  important  questions  that  has  been 
presented  to  this  body.  As  to  the  proper  construction  of  the  present  language  of  the 
Constitution,  I  hold  exactly  the  opposite  views  to  those  of  many  of  the  gentlemen  who 
have  addressed  the  -Convention.  I  believe  that  the  language  means,  upon  a  proper  con- 
struction, tnat  you  must  propose  amendments  to  the  Constitution,  and  that  you  have  no 
power  whatever  to  proclaim  a  Constitution.  I  am  sincere  in  that  view  as  I  can  be,  and 
I  have  all  the  authority  I  want  to  sustain  it.  Other  men  have  opposite  views.  They 
think  it  requires  you  to  proclaim  the  Constitution.  Some  think  it  means  that  you  can 
do  anything  you  please,  that  you  can  proclaim  it,  or  you  can  propose  it.  When  there 
iB  that  much  difference  about  the  matter,  we  ought  to  put  it  at  rest,  by  putting  it  in 
language  that  is  unquestionable  in  its  meaning.  Are  you  going  to  put  yourselves  on 
record  as  saying  to  the  people  that  they  cannot  give  you  the  power  to  proclaim  or  pro- 
pose a  Constitution?  One  gentleman  came  here  and  suggested  the  startling  proposition 
that  you  could  not  put  such  a  provision  into  the  Constitution  because  you  would  be 
binding  succeeding  Conventions.  I  am  asking  that  this  ambiguous,  this  uncertain  pro- 
vision in  the  Constitution,  upon  which  men  of  ability  differ,  be  made  plain  and  certain. 
I  want  to  put  the  question  at  rest.  I  want  to  give  the  people  the  power  to  say  that  you 
must  proclaim  or  you  must  propose,  or  that  you  may  do  either.  They  can  give  you 
plenary  power  if  they  wish  to.  Is  the  Convention  going  to  put  itself  on  record  here  as 
opposing  the  giving  of  such  power  as  that  to  the  people,  in  the  Constitution.  I  do  not 
know  what  the  gentleman  from  Portsmouth  thinks  it  means.  He  wants  the  same  pro- 
vision we  have  now  in  the  Constitution.    What  do  you  think  it  means? 

Mr.  Hatton:  I  think,  Mr.  Chairman,  the  question  as  framed  there  is  broad  enough 
to  cover  any  Constitution,  and  that  is  the  way  it  ought  to  be.  I  do  not  think  the  people 
of  this  Commonwealth  ought  to  be  tied  down,  in  advance  of  a  Convention,  as  to  what 
that  Convention  shall  do.  I  think  the  hands  of  the  people  should  be  left  free,  when 
they  select  delegates  to  a  Constitutional  Convention,  to  allow  those  delegates  either  to 
proclaim  or  not  to  proclaim  the  Constitution.    That  is  what  I  think  about  it. 

Mr.  Wysor:  The  gentleman  from  Hanover  (Mr.  Carter)  in  his  argument  upon  that 
question  many  months  ago  took  an  entirely  different  view. 

There  are  gentlemen  in  this  Convention  who  have  taken  the  ground  that  you  have 
full  power,  outside  of  the  provision  in  the  Constitution,  and  that  it  does  not  bind  any- 
body. They  hold  that  when  a  Convention  is  elected,  it  has  all  the  power  of  the  people 
to  do  as  it  pleases: 

Mr.  Barbour:  I  move  that  the  vote  on  all  amendments  to  Section  2.  now  under 
consideration,  shall  be  taken  at  5  o'clock  to-day. 

The  resolution  was  adopted;  there  being  on  a  division,  ayes  37,  noes  20. 

Mr.  Barbour:    I  move  the  Chair  be  now  vacated  until  4  o'clock  this  afternoon. 

The  motion  was  agreed  to,  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess. 
165— Const.  Deb. 


2618 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


On  motion  of  Mr.  Green,  this  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Preamble  and 
Bill  of  Rights,  Mr.  Turnbull  in  the  chair. 

The  Chairman:  The  question  is  on  the  adoption  of  the  substitute  offered  by  the 
gentleman  from  Richmond,  and  the  amendment  thereof  by  the  gentleman  from  Pulaski. 

Mr.  Harrison:  Mr.  Chairman,  I  want  to  withdraw  the  amendment  I  offered  so  that 
another  amendment  can  be  offered  in  its  place.  I  would  like  the  gentleman  from  Rich- 
mond to  offer  his  amendment  to  the  report  first  then  we  will  offer  ours  as  an  amend- 
ment to  his,  for  this  reason,  that  if  we  cannot  get  ours  we  would  be  very  glad  to  have 
his. 

Mr.  Gordon:    I  agree  to  that. 

Mr.  Wysor:    I  offer  the  following  amendment: 

At  the  general  ejection  to  be  held  in  the  year,  and  each  twentieth  year  there- 
after, and  at  such  times  as  the  General  Assembly  may  by  law  provide,  the  question, 
Bhall  there  be  a  Convention  to  revise  and  propos»e  amendments  to  the  Constitution,  or 
to  revise  the  Constitution,  and  proclaim  or  propose  am'endments  to  the  same  as  the 
Convention  may  determine?  shall  be  submitted  to  and  decided  by  the  electors  qualified 
to  vote  for  m'embers  of  the  General  Assembly, 

The  committee  will  observe  that  the  amendment  embraces  a  double  question.  The 
question  to  be  submitted  is:  "Shall  there  be  a  Convention  to  revise  and  propose  amend- 
ments to  the  Constitution?"  That  is  one  question  you  submit  to  them.  If  they  decido 
in  favor  of  that  provision,  the  Convention  that  assembles  has  limited  powers.  It  can 
only  revise  and  propose  amendments  to  the  Constitution.  Then  the  amendment  goes  on 
and  provides,  "or  to  revise  the  Constitution  and  proclaim  or  propose  amendments  to  the 
same  as  the  Convention  may  determine."  That  gives  the  Convention  absolute  power  to 
do  what  it  pleases  in  the  matter,  either  to  proclaim  it  or  submit  it  to  the  people.  I  want 
to  know  wiiy  such  a  provision  as  that  should  not  go  into  the  Constitution?  The  pro>- 
vision  in  the  present  Constitution  and  in  the  report  is:  Shall  a  Convention  be  called 
to  revise  the  Constitution  and  amend  the  same?  What  does  that  mean?  Have  we  not 
had  arguments  here  for  two  or  three  weeks  on  that  subject? 

One  lawyer  contends  it  means  one  thing  and  another  that  it  means  an  entirely  dif- 
ferent thing.  I  have  my  views  about  what  that  means,  considering  the  Constitution  as  a 
whole.  I  think  it  means  that  you  shall  simply  revise  the  Constitution  and  propose 
amendments  to  the  people.  Other  gentlemen  here  say  it  gives  the  Convention  plenary 
power  to  do  what  it  pleases,  either  to  propose  it  or  proclaim  it.  Some  gentlemen  con- 
tend, with  a  good  deal  of  reason  in  support  of  an  erroneous  proposition,  that  it  means 
that  they  shall  proclaim  the  Constitution  and  that  they  have  no  power  to  do  anything 
else.  I  simply  want  to  make  unambiguous  and  clear  that  which  is  now  ambiguous  and 
uncertain.  I  cannot  see  why  the  Convention  should  not  remove  this  ambiguity  in  the 
Constitution.  I  hope  the  Convention  will  not  think  it  has  any  bearing  at  all  upon  the 
question  as  to  whether  they  shall  submit  or  proclaim  the  present  Constitution.  It  has 
no  reference  to  that  whatever.  The  decision  of  this  question  one  way  or  the  other  can- 
not affect  that.  I  am  for  proposing  the  present  Constitution  to  the  entire  electorate. 
I  believe  that  the  present  Constitution  requires  us  to  do  it.  I  know  that  the  people, 
under  their  vote,  have  required  us  to  do  it.  I  sincerely  believe  that  any  other  pro- 
cedure would  be  wrong.  If  you  proclaim  it,  I  believe  you  will  not  have  any  Constitu- 
tion. We  have  labored  here  to  provide  for  a  Corporation  Commission.  If  you  proclaim 
this  Constitution  you  will  not  have  any  Corporation  Commission  because,  the  corpora- 
tions will  litigate  the  Constitution  and  defeat  it  in  the  courts  and  I  hope  they  will  do  it, 
if  it  is  proclaimed,  and  I  will  join  them  in  trying  to  do  it.  I  don't  care  how  good  or 
just  a  Constitution  it  may  be,  because  I  will  feel  that  you  have  trampled  on  my  rights, 
and  the  rights  of  the  people  generally. 

This  question  does  not  bear  upon  that  at  all.    I  want  to  remove  from  the  Consti- 


DEBATES  OF  THE  COXSTITUTIOX AL  COXYEXTIOX  OF  A'IRGIXIA.  2  619 

tution  every  ambiguous  expression.  I  know  that  posterity  has  not  done  anything  for 
me,  but  I  want  to  do  something  for  it.  I  want  future  Conventions  to  know  what 
they  are  assembled  for.  I  want  the  people  to  tell  them  in  their  votes  that  they  have 
limited  or  plenary  powers.  That  is  all  this  amendment  means.  I  want  the  people  who 
have  advocated  the  rights  of  the  people  here  to  stand  by  them,  and  unless  they  are  will- 
ing to  advocate  this,  I  want  them  to  take  the  weights  off  their  feet  and  sit  down  and  say 
no  more  on  the  subject,  because  here  you  come  to  the  real  power  of  the  people.  You 
are  right  at  the  throne  itself.  If  the  people  cannot  limit  the  powers  of  the  Constitu- 
tional Convention,  what  can  they  do?    Where  is  their  power? 

We  have  the  argument  made  here  that  when  a  Constitutional  Convention  is  as- 
sembled it  does  not  matter  what  is  in  the  Constituton,  it  does  not  matter  upon  what 
question  the  people  have  voted,  the  Convention  has  absolute  power  to  do  as  it  pleases. 
It  has  been  argued  to-day  that  if  this  question  had  been  submitted  to  the  people  to  say 
whether  there  should  be  a  Convention  to  revise  the  Constitution  and  propose  the  same 
to  the  people  for  their  ratification,  that  under  such  a  call  the  Convention  could  Ignore 
that  question  and  trample  under  foot  this  vote  of  the  people,  and  proclaim  the  Consti- 
tution. If  that  could  be  done,  where  would  be  the  rights  of  the  people?  You  say  you 
cannot  limit  future  Conventions.  We  are  not  trying  to  do  it.  We  are  only  inserting 
in  the  present  Constitution  the  inalienable  right  of  the  people.  I  am  perfectly  willing, 
if  you  will  agree  to  it,  to  leave  out  the  provision  altogether.  Then,  what  are  the  powers 
of  the  people?  Just  take  this  provision  out  and  what  are  the  powers  of  the  people? 
The  Underwood  Constitution  is  the  first  one  that  ever  had  any  provision  on  the  subject 
iu  it  in  Virginia.  Now,  take  it  out,  and  then  cannot  the  people  call  a  Convention,  and 
when  they  call  that  Convention,  cannot  they  limit  its  powers;  cannot  they  give  it 
plenary  power;  cannot  they  part  with  a  part  of  their  power,  or  with  all  oT  it.  Would  not 
that  be  so  if  there  were  no  provision  in  the  Constitution  at  all?  I  am  not  trying  to  put 
anything  in  the  Constitution  except  the  inalienable  right  of  the  people,  in  lieu  of  the 
provision  which  is  there  now,  which  is  ambiguous,  and  about  the  construction  of  which 
we  all  differ.  I  am  simply  saying  that  the  people  by  their  vote  can  limit  the  power  of 
the  Convention  or  give  it  plenary  power,  and  that  is  all  this  amendment  means. 

Now,  what  objection  has  the  gentleman  from  Chesterfield  (Mr.  Hancock)  to  this 
amendment?  What  objection  could  you  have  to  it?  Are  you  willing  to  cast  aside  a 
provision  like  that,  which  makes  the  power  of  a  Convention  plain  and  unmistakable, 
and  put  in  a  provision  like  you  have  in  the  Underwood  Constitution,  whicli  is  ambig- 
uous and  uncertain,  and  about  which  men  differ?  I  say  again  that  these  men  who  have 
been  wanting  to  elect  the  judges  by  the  people,  and  to  elect  all  the  other  officers  by  the 
people,  and  who  proclaim  that  they  are  for  the  people,  that  now  is  the  time  to  test 
whether  they  are  willing  to  have  the  power  in  the  people  or  not.  Tliere  are  men  in  this 
Convention  who  have  argued  here  that  this  provision  means  that  the  Convention  has 
absolute  power  to  proclaim  the  Constitution,  and  that  when  you  put  it  in  the  Constitu- 
tion you  have  determined  that  the  Convention  can  do  as  it  pleases.  If  that  be  so,  then 
the  people  never  can  elect  a  Convention  with  only  the  power  to  propose  amendments 
and  command  them  to  do  it.  I  want  to  fix  it  so  that  the  people  will  have  the  right  to 
say  to  a  Convention,  "You  shall  propose  it."  That  is  what  this  amendment  says,  plainly 
and  unmistakably.  It  simply  secures  to  the  people,  under  the  Constitution,  their  inalien- 
able rights  in  this  regard. 

Mr.  Robertson:  I  took  up  a  little  time  of  the  Convention  before  recess;  but  for 
fear  that  I  may  not  have  made  myself  as  plain  as  I  should  have  done  with  reference  to 
my  attitude  in  regard  to  this  matter,  I  desire  to  say  a  few  words  more.  As  I  under- 
stand the  law  that  governs  this  matter,  the  power  of  the  Convention  depends  entirely 
upon  the  votes  that  the  people  cast  in  reference  to  it.  When  a  Legislature  submits  the 
question  to  the  people  whether  the  Convention  shall  be  called  or  not.  the  language  of 
the  act  in  which  the  Convention  submits  that  question  to  the  people  seems  to  me  neces- 
sarily to  control  the  Convention  which  is  held  subsequently  to  that  call.    I  do  not  think 


2620 


DEBATES  OF  TtlE  COis  STITUTIONAL  CONVENTION  OF  VIRGINIA. 


there  is  any  dispute  in  the  books  with  reference  to  that  matter.  If  you  will  look  at  the 
debate  in  the  Convention  of  1829-30  you  will  see  that  the  whole  question  there  was  as  to 
what  had  been  submitted  to  the  people  by  the  call  that  the  Legislature  made.  Now,  it 
does  seem  to  me,  as  the  gentleman  from  Pulaski  has  said,  that  if  this  Convention,  fol- 
lowing the  example  of  the  Underwood  Convention,  is  going  to  make  any  provision  at  all 
with  reference  to  what  the  duty  of  the  Legislature  shall  be  in  reference  to  submitting 
to  the  people  the  question  of  calling  a  Convention,  there  can  be  no  two  opinions  about  it 
that  we  ought  to  make  it  perfectly  clear  what  the  Legislature  can  do  under  the  consti- 
tutional provision  we  enact.  My  idea  about  it,  and  I  think  I  can  speak  for  the  gentle- 
man from  Pulaski,  Is  that  we  are  perfectly  willing  to  leave  this  whole  matter  out.  Then 
the  Legislature  will  have  its  hands  free,  if  it  passes  an  act  submitting  it  to  the  vote  of 
the  people,  all  that  you  have  to  do  is  to  look  at  that  act,  and  see  what  was  submitted  to 
the  people,  and  the  Convention,  when  it  assembles,  can  determine  what  its  power  is. 
But  if  we  undertake  to  put  in  the  Constitution  what  the  question  shall  be  that  the 
Legislature  shall  submit  to  the  people,  I  respectfully  submit  that  there  is  grave  doubt 
as  to  the  power  of  the  Legislature  to  go  outside  of  the  question  which  is  put  into  the 
Constitution  and  submit  any  other  question  to  the  people.  Take  the  provision  of  this 
present  Constitution,  which  ties  the  Legislature  down  to  submitting  the  question, 
"Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?" 

The  gentleman  from  Hanover,  in  one  of  the  ablest  arguments  that  has  been  sub- 
mitted to  this  Convention,  argued  that  when  we  proceed  under  that  clause  of  the  Con- 
stitution there  was  grave  doubt,  at  least,  whether  we  could  do  more  than  revise  and 
amend;  and  I  understood  the  gentleman  to  resolve  the  doubt  in  favor  of  the  idea  that 
all  that  could  be  done  under  that  would  be  to  follow  strictly  the  language  of  the  ques- 
tion and  revise  and  amend  the  Constitution,  without  doing  anything  further.  I  must 
say  that  I  do  not  agree  with  the  gentleman.  I  think  that  under  this  provision  the  legal 
right  of  this  Convention  to  either  proclaim  or  submit  to  the  people  cannot  be  questioned. 
That  is  my  own  idea  about  it.  But  I  see  very  readily  how  lawyers  could  differ  about 
that  language.  My  own  idea  about  it  is  that  the  word  "amend"  in  that  question  carries 
with  it  all  that  this  Convention  may  consider  necessary  to  carry  out  the  amendment. 
In  other  words,  that  if  we  have  the  right  to  amend,  we  have  the  right  to  say  how  we 
shall  amend;  and  we  can  say  that  this  amendment  can  take  effect  when  the  people  vote 
on  it  and  ratify  the  amendment  that  we  have  adopted. 

Mr.  Wysor:  Even  admitting  your  construction  of  that  provision  to  be  the  proper 
one,  is  it  not  a  fact  that  if  the  question  remains  in  the  Constitution,  the  people  never 
can  compel  a  Convention  to  propose  a  Constitution? 

Mr.  Robertson:  I  was  coming  to  that.  I  say  there  is  a  grave  doubt  about  it  which 
doubt  ought  not  to  be  in  a  provision  of  a  Constitution.  It  is  a  question  about  which 
lawyers  in  future  Conventions  will  differ  as  the  lawyers  have  done  here.  When  Conven- 
tions assemble  in  the  future  it  does  seem  to  me  that  the  time  of  the  Convention  should 
not  be  taken  up  in  duscussing  the  powers  of  the  Convention,  but  rather  in  carrying  out 
the  duties  that  the  people  have  imposed  upon  them.  I  go  further  than  that.  I  think  it 
would  be  better,  as  we  have  agreed  to  live  under  written  Constitutions,  to  provide  the 
manner  of  making  changes  in  this  Constitution.  Everybody  knows  that  the  Constitu- 
tion of  the  United  States  provides  how  amendments  can  be  obtained  through  that  instru- 
ment. It  has  become  very  general,  though  our  old  Constitution  did  not  have  it,  that  a 
provision  shall  be  contained  in  the  Constitution  whereby  the  people  can,  in  an  ordinary 
and  constitutional  manner,  amend  the  Constitution  under  which  they  are  living.  If  we 
decide,  as  this  committee  has  done,  that  we  will  provide  for  future  amendments,  it  does 
seem  to  me  that  we  ought  not  to  put  in  anything  that  may  be  construed  as  tying  the 
hands  of  the  Legislature.  The  gentlemen  say  that  no  constitutional  provision  can  tie 
the  hands  of  the  Legislature.  I  cannot  understand  from  where  they  get  that  principle. 
They  say  there  is  some  higher  law  somewhere.  I  respectfully  submit  that  if  the  lan- 
guage of  this  question  was,  "Shall  there  be  a  Convention  to  revise  the  Constitution  ^nd 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEXTIOX  OF  VIRGINIA.  2G21 

proclaim  the  same?"  that  the  Legislature  would  not  have  the  power  to  do  anything  ex- 
cept to  call  a  Constitutional  Convention,  which  would  be  compelled  to  proclaim  it.  The 
only  reason  I  think  we  have  the  right  to  either  proclaim  or  submit  it,  is  because  of  the 
construction  of  the  language  of  that  question.  I  cannot  agree  with  the  gentlemen  who 
hold  that  one  Constitution  cannot  bind  the  method  of  creating  a  new  Constitution  and 
that  the  Legislature  has  all  the  power,  because  the  Constitution  is,  in  its  nature,  some- 
thing which  the  people  have  adopted  by  their  own  law-making  power.  How  can  the 
Legislature  have  any  power  when  it  has  been  deprived  of  it  by  this  Constitution? 

Is  it  not  better  to  leave  the  Legislature  where  it  can  submit  more  than  one  question 
to  the  people,  rather  than  to  require  the  Legislature  to  submit  but  one,  when  in  the 
nature  of  things  it  may  be  very  important  that  more  than  one  should  be  submitted  to 
them?  As  I  said  before,  there  may  be  occasions  in  the  future,  cases  of  emergency, 
where  the  people  would  be  perfectly  willing  to  call  a  Constitutional  Convention,  and  to 
vote  that  that  Convention  might  exercise  its  own  judgment  as  to  whether  it  would  pro- 
claim the  Constitution  or  submit  it  to  the  people.  I  think  it  is  almost  the  universal 
practice  in  this  country  to  submit  these  Constitutions  to  the  people,  and  the  reason  for 
it  is  perfectly  obvious,  is  because  this  is  a  matter  which  goes  down  to  the  very  funda- 
mental, rock-bottom  foundation  of  our  government,  and  the  people  ought  to  decide  what 
sort  of  government  they  shall  have.  They  are  to  decide  what  limitations  they  will  put 
upon  the  different  branches  of  the  government;  and  every  government  that  is  a  govern- 
ment adopted  by  the  people  should  be  one  which  is  based  upon  the  wishes  of  the 
majority  of  the  people  in  regard  thereto. 

Mr.  Hancock:  Mr.  Chairman,  I  believe  it  is  bad  policy  to  limit  the  powers  of  a 
Constitutional  Convention.  I  believe  the  report  of  the  committee  is  rigEl  and  that  the 
suggestions  contained  therein  should  be  adopted  by  the  Committee  of  the  Whole. 

When  we  look  at  the  history  of  Constitutional  Conventions  in  Virginia,  we  find  that 
the  Constitutional  Convention  of  1776  proclaimed  its  w^ork  as  the  fundamental  law  of 
the  State,  and  so  did  the  Convention  of  1864.  Thus  we  see  that  two  out  of  the  five 
Constitutions  of  this  State  have  been  proclaimed,  proclaimed  because  an  emergency 
existed  at  the  time  for  such  proclamation. 

Now,  if  this  be  true,  then  why  should  we  place  any  restrictions  upon  future  Con- 
stitutional Conventions?  The  Underwood  Constitution  was  the  first  Constitution  that 
provided  for  any  amendments  to  a  Constitution  or  for  any  call  for  a  Constitutional  Con- 
vention. Now,  if  the  suggestion  of  my  colleagues  from  Chesterfield  (Mr.  Ingram)  pre- 
vails, and  this  whole  clause  is  stricken  out,  no  harm  would  be  done  thereby,  for  the 
people  by  their  General  Assembly  would  have  the  right  at  any  time  to  call  a  Constitu- 
tional Convention.  The  Conventions  of  1829-'30  and  1850-'51  were  called  by  the  General 
Assembly  without  any  provision  in  the  Constitution  in  relation  thereto.  The  right  to 
revise  and  amend  the  fundamental  law  is  a  right  that  cannot  be  taken  from  the  people 
by  constitutional  provision  or  otherwise. 

If  this  be  the  law  of  the  land  then  the  people  will  know  when  they  vote  for  a  Con- 
stitutional Convention  that  they  vote  for  a  Convention  that  has  a  right  to  proclaim, 
that  has  a  right  to  submit  to  an  abridged  or  an  enlarged  electorate  or  to  the  present 
electorate,  the  Constitution  framed  by  them.  I  think  that  Is  what  we  need  in  a  Con- 
stitutional Convention.    It  is  organic  in  its  nature,  it  is  fundamental  in  its  character. 

No  one  knows  when  the  necessity  may  arise  which  may  demand  that  the  Constitu- 
V  tion  should  be  proclaimed.  This  necessity  might  arise  after  the  Convention  had  assem- 
bled and  completed  its  work  for  a  Constitution  that  will  be  valuable  must  change  exist- 
ing conditions. 

In  changing  existing  conditions  there  will  be  opposition  and  by  a  combination  of  its 
enemies  a  first  class  Constitution  might  be  defeated  unless  the  power  to  proclaim  it  is 
in  the  Convention  itself. 

Now,  while  I  believe  that  is  the  true  idea  about  a  Constitutional  Convention,  that 
it  should  be  unlimited  in  its  power,  yet  I  do  not  intend  to  vote  to  proclaim  the  Consti- 


2622 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tution,  we  are  now  framing,  unless  the  people  should  rise  up  en  masse  all  over  this 
Commonwealth  and  ask  that  it  be  proclaimed,  and  should  say,  "Proclaim  the  Constitu- 
tion, because  we  are  satisfied  with  it  and  do  not  wish  to  incur  the  expense  of  an  elec- 
tion." I  see  no  reason,  Mr.  Chairman,  why  this  Convention  should  endeavor  to  put 
limitations  on  the  powers  of  this  or  any  other  Constitutional  Convention  to  do  what  is 
best  for  the  interest  of  the  people. 

I  hope  the  report  of  the  committee  will  be  adopted.  Let  it  be  understood  that  Con- 
stitutional Conventions  have  unlimited  power.  Let  it  be  known  that  the  people,  when 
they  vote  for  delegates  to  a  Constitutional  Convention,  selecting  men  whom  they  are 
willing  to  trust  and  no  matter  what  emergency  may  arise,  no  matter  what  dangers  may 
come,  no  matter  what  unforseen  events  shall  present  themselves,  that  the  people  will 
feel  that  the  men  they  have  selected  have  the  power  to  protect  them  and  the  courage  to 
proclaim  the  Constitution  if  the  best  interests  of  the  people  should  require  it. 

Mr.  Dunaway:  Mr.  Chairman,  I  intend  to  vote  against  all  amendments  to  the  re- 
port of  the  committee,  and  having  done  that,  to  afterwards  vote  for  a  motion  to  strike 
out  the  whole  section.  If  we  are  to  have  a  provision  of  this  kind,  I  think  the  com- 
mittee has  given  us  as  good  a  one  as  we  could  get;  but  I  shall  favor  striking  out  the 
section  entirely,  because  I  am  firmly  of  the  opinion  that  you  may  write  in  this  Consti- 
tution what  you  please  with  regard  to  the  matter  of  the  people  making  a  new  Constitu- 
tion in  the  future,  you  cannot  bind  the  people  of  Virginia  in  the  future;  and  in  regard 
to  Constitution-making,  and  the  matter  of  calling  a  Constitutonal  Convention,  you  can- 
not bind  the  General  Assembly  of  Virginia. 

Suppose  you  write  this  in  the  Constitution,  then  suppose  any  number  of  years  in 
the  future,  one,  two,  any  number  please  up  to  twenty,  the  General  Assembly  entirely 
ignores  what  you  have  put  in  the  Constitution  and  calls  a  Constitutional  Convention 
and  that  is  submitted  to  the  vote  of  the  people. 

Whether  they  comply  with  the  requirements  of  the  Constitution  or  not,  if  the 
people  have  called  a  Constitutional  Convention,  then  that  Convention  assembles  by  vir- 
tue of  the  sovereign  right  of  the  people,  and  cannot  bind  future  generations. 

You  may  bind  the  General  Assembly  of  Virginia  in  regard  to  the  matter  of  making 
laws.  They  cannot  make  any  law  contrary  to  the  Constitution  of  the  State.  If  they  do, 
it  will  be  declared  unconstitutional  by  our  Supreme  Court;  but  in  regard  to  this  matter 
of  calling  a  Constitutional  Convention,  the  words  will  not  be  worth  the  paper  upon 
which  they  are  written  if  the  General  Assembly  should  violate  the  express  terms  you 
write  in  here.  Whether"  you  have  it  as  it  is,  or  whether  you  have  the  amendment  pro- 
posed by  the  gentleman  from  Pulaski  (Mr.  Wysor),  the  General  Assembly  of  Virginia 
can  ignore  both.  The  people  may  desire  their  General  Assembly  to  call  a  Constitutional 
Convention.  Then  if  they  do  it,  the  people  are  sovereign.  They  have  the  right  to  call 
it,  and  though  the  Legislature  has  departed  from  the  strict  letter  of  an  old  Constitu- 
tion, the  defect  is  cured  by  a  vote  of  the  people  of  Virginia.  So  it  will  be  altogether 
nugatory. 

I  desire  that  this  provision  shall  be  stricken  out  because  there  is  no  necessity  for  it. 
In  the  Constitutional  Convention  of  1829,  when  this  question  was  up,  John  Randolph,  of 
Roanoke,  said  to  the  members  of  the  Convention,  "There  is  no  need  that  you  should  put 
a  provision  in  your  Constitution  about  changing  it.  The  people  will  change  it  whenever 
they  get  ready  to  do  so."  The  people  have  heretofore  changed  their  Constitution  when- 
ever they  desired,  when  we  had  no  provision  of  this  kind;  and  the  only  effect  of  putting 
a  provision  into  your  Constitution  in  regard  to  this  matter  would  be  a  tendency  to  per- 
plex the  mind  of  the  people  and  the  minds  of  a  Convention  when  it  shall  be  called.  The 
people  are  free  in  regard  to  Constitution-making.  You  cannot  bind  them,  and  you  ought 
not  to  try  to  do  it.  There  ought  not  to  be  any  provision  of  this  kind  whatever  in  your 
new  Constitution. 

Mr.  Barbour:  Mr.  Chairman,  I  simply  desire  to  call  the  attention  of  the  committee 
to  the  fact  that  if  they  strike  out  this  provision,  it  will  be  competent  for  the  Legislature 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2623 


to  call  a  Constitutional  Convention  at  any  time  they  want  to,  without  reference  to  the 
people. 

Mr.  R.  Walton  Moore:  It  did  not  seem  to  me  wise  to  attempt  to  put  a  prohibition 
upon  the  General  Assembly;  and  I  may  say,  Mr.  Chairman,  if  I  may  be  permitted — it 
has  pernaps  been  mentioned  by  the  gentlemen  who  preceded  me — that  the  Conventions 
of  1776,  1829-'30  and  1850-'51  did  not  seem  to  consider  it  at  all  necessary  to  put  any- 
thing like  this  proposed  restriction  upon  the  representatives  of  the  people  in  this  re- 
gard. 

Mr.  Harrison:  Mr.  Chairman,  there  may  be  some  ambiguity  in  the  phrasing  of  the 
amendment  of  the  gentleman  from  Pulaski.  The  gentleman  from  Richmond  (Mr.  Gor- 
don) has  prepared  an  amendment  which  expresses  it  more  clearly,  and  for  my  part  I 
would  be  glad  to  see  that  adopted.  I  think  we  ought  to  perfect  this  amendment.  I 
do  not  propose,  like  the  gentleman  from  Lancaster  (Mr.  Dunaway)  to  vote  down  any 
amendment  and  then  vote  to  strike  it  out.  I  shall  vote  with  the  gentleman  from  Lan- 
caster to  strike  out  all  provisions,  but  it  seems  to  me  that  we  should  perfect  the  lan- 
guage in  case  the  motion  to  strike  out  does  not  prevail. 

The  object  of  this  amendment  is  simply  that  there  shall  be  a  question  submitted  to 
the  people,  first,  as  to  whether  there  shall  be  a  Convention  or  not.  If  that  is  voted  aye, 
then  what  shall  be  the  power  of  that  Convention? 

Mr.  Meredith:    In  two  votes? 

Mr.  Harrison:  No;  at  the  same  election.  In  other  words,  you  submit  the  question 
to  the  people  in  a  distinct  form,  Shall  there  be  a  Convention?  The  people  vote  on  that 
proposition,  which  can  be  readily  arranged  on  the  ballot.  Then  they  vote  as  to  whether 
that  Convention  shall  have  full  power  or  simply  limited  power;  and  then  when  that 
Convention  comes,  they  will  know  exactly  what  powers  they  have,  and  the  people  who 
vote  for  them  will  know  exactly  what  powers  they  are  conferring  on  the  Convention. 

The  way  it  is  in  the  present  Constitution,  it  is  in  a  stereotyped  form.  If  the  gen- 
tleman from  Culpeper  (Mr.  Barbour)  is  right,  no  other  question  can  be  submitted  but 
that  one  stereotyped  question.  If  it  is  submitted  in  the  present  shape,  the  Legislature 
is  given  a  free  hand,  without  disturbing  the  question  whether  there  shall  be  a  Conven- 
tion or  not,  to  say  whether  that  Constitutional  Convention  shall  have  full  power  or  shall 
have  limited  power. 

Another  thing  that  this  amendment  carries  out  is  that  it  provides  that  every  twenty 
years  this  question  shall  be  submitted  to  the  people;  not  whether  the  Legislature  wants 
it  or  whether  the  Legislature  does  not  want  it.  For  some  reason  the  committee  has 
stricken  out  that  provision  in  the  present  Constitution,  and  they  have  not  explained 
here  why  they  did  it.  I  do  not  understand  why  there  should  have  been  taken  away 
from  the  people  that  they  now  have,  without  any  power  in  the  Legislature  to  prevent 
them  from  having  it,  the  right  to  say  at  the  end  of  every  twenty  years  whether  we  shall 
have  a  Constitutional  Convention  or  not.  Suppose  a  Legislature  gets  into  power  in  this 
State  and  wilfully  will  not  submit  that  question  to  the  people  when  the  people  demand 
it,  then  at  the  end  of  a  certain  period  of  time  that  question  has  to  be  submitted, 
whether  the  Legislature  desires  it  or  not. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  of  the  gentleman 
from  Pulaski  (Mr.  Wysor). 

The  amendment  was  rejected,  there  being  on  a  division,  ayes  19,  noes  35. 

The  Chairman:  The  question  now  is  upon  the  adoption  of  the  substitute  offered  by 
the  gentleman  from  Richmond  (Mr.  Gordon). 

The  amendment  was  rejected. 

The  Chairman:  The  question  is  on  the  motion  of  the  gentleman  from  Manchester 
to  strike  out  the  entire  section. 

The  motion  was  agreed  to;  there  being,  on  a  division,  ayes  40,  noes  18. 

Mr.  Green:  Mr.  Chairman,  I  move  that  the  committee  rise  and  report  the  com- 
pleted report  to  the  Convention,  T^ith  amendments. 

The  motion  was  agreed  to,  and  the  committee  rose. 


2624 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  President  having  resumed  the  Chair,  Mr.  Turnbull  reported  that  the  Committee 
of  the  Whole  had  had  under  consideration  the  report  of  the  Committee  on  the  Preamble 
and  Bill  of  Rights,  and  miscellaneous  matters,  and  had  completed  the  same  and  directed 
him  to  report  it  to  the  Convention  with  amendments. 

On  motion  of  Mr.  Barbour  the  Convention  adjourned  until  to-morrow,  Saturday, 
February  22,  1902,  at  10  o'clock  A.  M. 


SATURDAY,  February  22,  1902. 

The  convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  P.  Dunaway,  D.  D. 

TAXATION  AND  FINANCE. 

On  motion  of  Mr.  Fairfax  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  consideration  of  the  report  of  the  Committee  on  Taxation  and  Finance, 
Mr.  Ayers  in  the  chair. 

Mr.  Fairfax:  Mr.  Chairman  and  gentlemen  of  the  committee,  in  presenting  this 
report  to  you  this  morning,  I  cannot  but  express  the  great  regret  of  the  committee  in 
the  loss  of  our  chairman,  Mr.  Newton,  who,  by  reason  of  ill  health,  was  compelled  to 
resign  from  this  body.  During  his  work  as  chairman  of  this  committee  his  industry  and 
patriotism,  as  exhibited  by  his  work  was,  to  the  highest  degree,  appreciated  by  all  of 
us. 

I  wish,  Mr.  Chairman,  also  to  express  my  regret  and  the  embarrassment  which  it 
places  upon  me  as  being  the  accidental  chairman  of  this  committee.  I  have  the  honor 
to  bring  before  this  body  a  report  which  has  the  signature  of  every  member  of  the 
committee  to  the  general  principles  laid  down  in  the  report,  with  the  exception  of  the 
gentleman  from  Franklin,  who  has  been  forced  to  be  absent  the  last  few  months  on 
account  of  illness,  and  the  gentleman  from  Petersburg  (Mr.  Hamilton)  and  the  gentle- 
man from  Portsmouth  (Mr.  Hatton  ).  I  am  not  sure  as  to  whether  the  gentleman  from 
Franklin  is  satisfied  with  all  of  the  measures  presented  here  or  not,  although  I  trust 
he  is.  The  other  two  members  of  the  committee  just  mentioned,  signed  the  report  with 
one  or  two  exceptions.    That  is,  they  except  to  one  or  two  sections  of  the  report. 

Mr.  Chairman,  as  I  am  nothing  of  a  speaker,  I  will  not  undertake  to  go  over  this 
report  in  detail  to  make  explanations  of  it,  but  will  simply  call  upon  the  different  mem- 
bers of  the  committee  who  have  had  the  special  assignment  of  the  different  sections 
of  the  report  in  sub-committee,  and  who,  I  believe,  will  be  able  to  clearly  explain  to 
the  satisfaction  of  this  body  every  question  that  may  be  asked  pertaining  to  the 
respective  sections.  I  do  not  believe,  Mr.  Chairman,  that  there  will  be  any  great  con- 
test upon  any  of  these  measures,  and  as  I  do  not  wish  to  take  up  the  time  of  the  Con- 
vention unnecessarily  I  will  move  that  we  proceed  to  the  consideration  of  the  report 
section  by  section. 

The  Chairman:  That  will  be  taken  as  the  sense  of  the  committee  v/ithout  objec- 
tion. 

The  Secretary  will  read  the  first  section  of  the  report  of  the  Committee  on  Taxa- 
tion and  Finance. 

Sec.  1.  All  property,  except  as  hereinafter  provided,  shall  be  taxed;  all  taxes  what- 
soever, whether  State,  local  or  municipal,  shall  be  uniform  upon  the  same  class  of  sub- 
jects within  the  territorial  limits  of  the  authority  levying  the  tax. 

Mr.  Fairfax:  Mr.  Chairman,  there  is  one  amendment  which  I  wish  to  make  to 
that  section,  which  is  as  follows:    At  the  end  of  the  section  after  the  word  "tax." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYENTIOX  OF  YIRGIXIA. 


2625 


change  the  period  to  a  comma,  and  add  the  words  "  and  shall  be  levied  and  collected 
under  general  laws." 

The  amendment  was  agreed  to. 

Mr.  Hamilton:  I  move,  Mr.  Chairman,  that  in  the  second  line  of  Section  1,  after 
the  .word  "taxed"  the  following  be  inserted:  "Except  as  hereinafter  provided."  The 
section  would  then  read: 

All  taxes  whatsoever,  whether  State,  local  or  municipal,  shall  be — 

I  wish  to  insert  there  the  word  "  equal,"  then  it  would  read  "  equal  and  uniform 
upon  all  property  within  the  territorial  limits  of  the  authority  levying  the  tax." 
So  that  the  section  when  amended  will  read  as  follows: 

All  property,  except  as  hereinafter  provided,  shall  be  taxed;  except  as  hereinafter 
provided,  all  taxes  whatsoever,  whether  State,  local  or  municipal,  shall  be  equal  and 
uniform  upon  all  property  within  the  territorial  limits  of  the  authority  levying  the  tax, 
and  shall  be  levied  and  collected  under  general  laws. 

In  presenting  this  amendment,  ]\Ir.  Chairman,  I  feel  it  my  duty  to  say  a  few  words. 
You  will  observe  that  Section  1  as  presented  to  3'ou  in  the  committee's  report  does 
away  with  the  law  which  we  have  had  in  Virginia  for  many  years,  certainly,  I  believe, 
since  1850,  providing  that  taxation  shall  be  equal  and  uniform.  To  my  mind  that  pro- 
vision is  the  most  essential  of  all  for  the  protection  of  the  individuals  and  the  people 
of  the  Commonwealth,  with  respect  to  the  exactions  of  government.  I  know  it  is  the 
fact  that  in  some  States,  under  modern  Constitutions,  and  possibly  under 
earlier  Constitutions,  there  was  no  provision  which  guarded  the  citizen  against 
unequal  and  therefore  unjust  taxation.  I  am  aware  of  the  fact  that  it 
is  said  that  provision  was  first  put  in  the  Virginia  Constitution  in  1850-51, 
in  order  to  prevent  the  taxing  out  of  existence  of  slave  property  or  the  unjust  taxation 
of  slave  property.  I  am  aware  of  the  fact  that  .in  the  recent  Constitution  made  in  New 
York  four  or  five  years  ago,  there  was  nothing  whatever  on  that  point.  There  was  no 
statement  laid  down  at  all  witl^  respect  to  the  principles  of  taxation;  but  it  seems  to 
me,  Mr.  Chairman,  the  foundation  principle,  if  there  is  any  principle  connected  with 
taxation,  is  that  property  should  equally  bear  in  proportion  to  its  value  the  burdens 
of  taxation.  I  cannot  see  that  we  can  accomplish  anything  by  putting  in  our  Consti- 
tution a  provision  which  will  enable  the  Legislature,  in  the  future,  to  discriminate 
between  classes  of  property,  in  laying  taxes.  I  can  see  no  justice  in  saying  that 
property  may  be  taxed  hy  classes.  I  can  see  no  reason  why  you  should  draw  a  distinc- 
tion between  one  kind  of  manufacturing  company  and  another,  and  say  that  the  rate 
of  tax  on  one  shall  be  lower  than  on  the  other.  I  can  see  no  reason  why  you  should 
tax  one  species  of  real  estate  lower  than  another.  I  can  see  no  reason  why  you  should 
tax  one  species  of  personal  property  at  a  less  or  greater  rate  than  another.  The  object 
of  putting  anything  into  a  Constitution  is  to  lay  down  certain  general  principles  which 
will  prevent  action  contrary  to  those  principles  by  3-our  Legislature. 

For  myself.  I  would  prefer  to  see  no  general  principles  placed  in  this  Constitution 
as  to  the  subject  of  taxation,  than  to  have  the  one  presented  by  the  committee  here, 
which  says  that  all  taxes  whatsoever,  whether  State,  local  or  municipal,  shall  be  uni- 
form upon  the  same  class  of  subjects  within  the  territorial  limits.  In  other  words, 
you  mean  by  that  to  give  to  your  legislative  body  the  authority  to  classify  the  subjects 
of  taxation  in  Virginia  and  that  legislative  body  can  delegate  to  the  subordinate  local 
taxing  powers,  like  boards  of  supervisors  in  counties  and  city  councils  in  cities,  this 
same  right  of  unequal  taxation,  of  a  different  rate  of  taxation  upon  different  kinds  of 
subjects  of  taxation.  To  my  mind  it  is  of  the  very  essence  of  bad  government,  ine- 
quality^ and  injustice.  A  great  deal,  I  think,  of  buncombe  has  been  gotten  out  of  the 
expression  in  the  political  parties  "  of  equal  right  to  all  and  special  favors  to  none." 
But,  gentlemen,  that  is  a  true  principle  of  government,  whether  it  is  taken  as  the  shib- 


2626 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


boleth  of  the  Populist  party  or  of  any  other  party.  No  people  should  have  favors  from 
the  government.  All  people  should  be  treated  equally,  justly  and  rightly,  especially  in 
the  exaction  of  their  property  for  the  support  of  the  government. 

Now,  Mr.  Chairman,  my  amendment  does  not  in  the  slightest  degree,  I  wish  the 
gentlemen  of  this  body  to  understand,  effect  the  provisions  which  are  provided  in  the 
residue  of  this  report  in  respect  to  the  taxation  of  corporations  and  other  such  matters. 
I  do  not  wish  you  to  feel  that,  in  this  matter,  I  am  standing  here  to  get  a  change  in  the 
principle  of  taxation,  in  order  to  affect  in  the  slightest  degree  anything  you  have  done 
with  respect  to  a  corporation  commission,  or  anything  which  is  recommended  in  this 
report  with  respect  to  the  taxation  of  corporations.  But,  having  accomplished  your 
purpose  with  respect  to  the  taxation  of  corporations,  and  if  I  may  use  the  expression 
without  offense,  having  ravished  the  corporations,  do  not  let  us  put  a  principle  in  here 
which  will  enable  the  Legislatures,  State  and  local,  to  ravish  and  destroy  the  rights  of 
the  people,  the  individuals  themselves.  I  think  it  may  be  laid  down  as  a  correct  prin- 
ciple, and  as  a  correct  statement  of  fact,  that  the  line  of  demarcation  between  a  tyran- 
nical and  arbitrary  government  and  a  constitutional  government  is  that  there  shall  be 
a  provision  which  prevents  arbitrary  exactions  of  the  property  of  the  citizens,  and 
which  makes  the  burden  bear  equally  upon  all  in  proportion  to  value.  My  recollection 
Mr.  Chairman,  of  the  history  of  our  race  is  that,  if  you  leave  out  the  wars  had  by  our 
ancestors  merely  as  to  what  royal  family  or  what  members  of  a  royal  family  should 
be  king,  or  something  of  that  kind,  all  of  the  real  wars,  the  real  revolutions  which  have 
occurred  in  the  history  of  the  English  speaking  people  have  grown  out  of  the  unjust, 
the  arbitrary  levying  of  taxes  or  subsidies  or  loans  or  aids  upon  the  people.  We  all 
know  that  that  produced  the  revolution  of  1688  in  England;  we  know  that  it  produced 
the  Revolutionary  War  in  this  country.  We  know  that  in  substance  it  was  at  the 
foundation  of  our  Civil  War,  because  there  was  the  threat  that  a  large  proportion  of 
the  property  of  the  South  was  to  be  destroyed.  It  seems  to  me,  Mr.  Chairman,  unless 
there  is  some  occasion  for  it,  unless  some  good  is  to  come  from  it,  unless  something  is 
to  be  accomplished  by  it,  tliat  when  we  do  ourselves  no  harm  with  respect  to  this  special 
property,  when  with  respect  to  corporate  property  in  this  report  we  reserve  the  right 
to  tax  franchises  in  any  way  we  deem  proper,  we  ought  to  preserve  for  the  benefit  of 
the  plain  citizen,  the  individual  of  this  State,  the  protection  against  unequal,  arbitrary 
and  unjust  taxation. 

Now,  Mr.  Chairman,  the  answer  to  what  I  have  said  is,  in  substance,  to  this  effect: 
That,  while  there  may  be  unequal  taxation  as  between  classes  of  property,  and  whilst 
that  is  intended  to  be  accomplished  by  the  committee,  the  taxation  of  all  property  within 
the  several  classes  is  to  be  uniform.  I  do  not  think  it  would  be  much  comfort  to  a  man 
who  has  a  large  portion  of  his  estate  in  mining  property,  for  instance,  to  be  told  that 
all  mines  must  be  taxed  in  the  same  way  his  property  is  taxed,  but  that  all  city  lots 
shall  be  taxed  at  a  different  rate,  or  that  all  farming  lands  shall  be  taxed  at  a  differ- 
ent rate.  I  do  not  think  it  will  be  agreeable  to  the  man  whose  riches  consist  chiefly 
of  cattle  "  on  a  thousand  hills,"  to  feel  that  his  cattle  may  be  taxed  at  a  different  rate 
from  the  sheep  in  some  other  part  of  the  country,  or  from  some  other  product  of  the 
soil  of  some  other  part  of  the  State.  The  underlying  principle  of  the  thing  is  wrong. 
We  gain  nothing  by  it.  We  can  carry  through  the  whole  of  this  report  and  still  pre- 
serve the  position  of  equal  taxation  between  all  the  people,  except  as  hereinafter  stated. 

It  will  be  said  that  classification  cannot  be  arbitrarily  made;  that  there  must  be 
some  distinction  between  classes  of  property  in  order  to  justify  their  being  put  in 
classes.  I  do  not  think,  Mr.  Chairman,  that  any  distinction  is  sufficient  to  justify  the 
classification.  All  property  should  be  taxed  at  its  fair  value,  and  should  be  taxed  at  an 
equal  rate  by  this  State.  I  differ  from  the  gentlemen  who  say  that  no  harm  can  come 
from  arbitrary  classification.  In  the  State  of  Pennsylvania,  from  which  this  provision 
is  taken,  a  case  was  decided  in  its  Supreme  Court  which  held  that  discrimination 
might  be  made  between  different  classes  of  manufacturing  property,  and  a  decision 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2627 

was  made  which  said  that  the  Legislature  was  the  body  to  decide  what  was  proper 
classification.  The  Supreme  Court  of  the  United  States  has  decided  that  the  classifica- 
tion should  not  be  wholly  unreasonable  or  arbitrary,  or,  in  other  words  the  limitation 
is  only  to  this  effect,  that  you  should  not  say  that  a  man  who  had  black  hair  should  pay 
$2  capitation  tax,  and  a  man  with  red  hair  should  pay  $1.50,  as  that,  of  course,  would 
be  wrong.  If  you  submit  it  to  legislative  authority  to  decide  what  is  a  proper  classi- 
fication, your  people  will  be  entirely  at  the  mercy  of  your  Legislature,  and  of  the 
subordinate  taxing  bodies,  like  boards  of  supervisors  in  counties,  and  city  councils  in 
cities.  To  show  you  that  that  is  the  case,  I  will  read  from  a  decision  of  the  Supreme 
Court  of  Pennsylvania  in  a  case  decided  in  1888,  after  the  Constitution  was  adopted, 
which  we  have  copied  from  here.  I  read  from  a  pencil  extract  which  I  made,  it  being 
somewhat  inconvenient  to  get  books  here  this  morning. 

In  the  case  of  Commonwealth  against  the  Delaware  Division  Canal  Company,  123 
Pennsylvania  State,  594,  decided  in  1888,  the  court  says,  among  other  things: 

The  power  to  impose  taxes  for  the  support  of  government,  with  the  power  of  classi- 
fication, still  belonging  to  the  Legislature  under  the  new  Constitution,  the  selection  of 
the  subjects  thereof,  their  classification  and  the  methods  of  selection  to  be  provided, 
are  matters  purely  legislative. 

The  Supreme  Court  of  Pennsylvania  decided  that  the  classification  of  subjects  of 
taxation  is  a  matter  purely  legislative.  We  copy  that  provision  of  the  Pennsylvania 
Constitution,  and,  according  to  all  rules  of  construction,  we  take  along  with  that  pro- 
vision the  settled  rules  of  construction  in  that  State.  So  that  you  have  no  aid  from 
the  courts  in  this  matter  unless  the  classification  is  so  purely  arbitrary,  so  wholly  with- 
out reason  or  possible  justification,  that  the  courts  may  say  ft  would  be  an  outrage 
upon  common  sense,  upon  the  very  plainest  principles  of  justice,  to  make  the  distinction 
attempted  to  be  made.  But  we  all  know  that  the  courts  must  never  decide  that  an  act 
of  the  Lgislature  is  unconstitutional,  unless  it  is  clearly  so.  There  can  be  no  presump- 
tions against  such  an  act.  The  presumptions  are  all  the  other  way,  and  to  all  intents 
and  purposes  the  authority  of  the  legislative  body,  in  making  these  classifications,  is 
going  to  be  supreme  and  final.  I  say  if  it  is  too  great  a  power  to  put  in  the  hands  of 
anybody;  that  it  affords  too  great  a  chance  for  wrong  and  unjust  discrimination. 
Another  thing:  Suppose  that  your  Legislature  has  the  right  to  classify,  practically 
arbitrarily,  classes  of  property  for  taxation.  See  what  an  immense  temptation  there 
will  be  to  have  people  come  into  your  legislative  body,  using  every  possible  influence — 
I  do  not  mean  wrong  influence — every  possible  legitimate  influence  to  show  that  this, 
that  and  the  other  subject  of  taxation  in  which  they  are  interested  should  be  taxed  at 
a  rate  lower  than  some  other  kind  of  property.  See  where  you  get  to  when  you  carry 
that  power  down  to  your  subordinate  local  taxing  bodies  like  the  city  councils  in  cities, 
and  think  of  the  pressure  being  brought  to  bear  on  those  people  to  say  that  one  species 
of  property  in  the  city  is  a  kind  of  property  you  ought  to  encourage  in  order  to  build 
up  the  city  and  to  help  its  improvement,  and  that  you  ought  to  put  a  lower  rate  of  taxa- 
tion on  this  than  on  property  generally.  The  reasons  and  influences  will  be  innumer- 
able and  wonderfully  ingenious  to  produce  those  changes,  and  to  bring  about  these 
results.  Partiality  and  favoritism  must  largely  enter  into  the  decision  of  such  a  ques- 
tion by  such  bodies.  State  and  local. 

In  this  same  case  in  Pennsylvania,  the  court  further  said: 

The  power  to  classify  being  given,  all  that  is  then  required  by  the  Constitution  is 
that  the  taxes  shall  be  uniform  upon  the  members  of  a  class,  and  it  is  the  uniformity 
of  taxation  according  to  the  classification  made,  which  is  a  question  to  be  determined 
by  the  court. 

That  is  all  the  court  can  determine,  under  the  Pennsylvania  law,  unless  the  classi- 
fication is  so  clearly  reasonable  that  it  would  come  under  the  protection  of  the  decision 
of  the  Supreme  Court  of  the  United  States.    We  have  in  the  Supreme  Court  of  Penn- 


2628 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


sylvania,  this  proposition  laid  down,  that  the  only  thing  the  courts  can  pass  upon  is 
whether  the  taxation  is  uniform  in  the  classes  as  between  the  different  subjects  of 
taxation  within  the  same  class,  and  that  it  is  proper  for  the  legislative  body  to  deter- 
mine what  the  classification  may  be.  That  is  a  power  and  danger  which  we  should  not 
run  the  risk  of,  especially  as  there  is  no  occasion  for  it,  as  I  can  see.  We  do  not  need 
it.  We  do  not  want  unequal  taxation,  I  take  it,  as  between  individuals.  I  do  not  know 
that  I  am  prepared  to  say  that  you,  or  any  of  us,  want  unequal  taxation  as  between  any 
classes  of  property.  If  this  provision  was  necessary  in  order  to  carry  out  the  general 
plan  of  taxation  presented  by  the  Finance  Committee  I  could  see  some  excuse  for  it  on 
the  ground  that  conditions  have  so  changed,  etc.,  etc.,  that  we  could  not  stand  by  the 
old  antiquated  rule  of  equality  and  justice.  It  is  not  necessary,  however,  and  we  are 
simply  inviting  unequal  and  unjust  taxation. 

If  we  had  no  general  principle  laid  dow^n  in  our  Constitution  as  to  taxation  we  would 
at  any  rate  have  that  presumption  which  arises  in  almost  every  man's  heart  and  mind 
that  the  burdens  of  taxation  should  be  equally  borne  in  proportion  to  the  value  of  the 
property.  But  when  you  go  further  than  that,  when  you  put  there  a  rule  that  is  an 
invitation  to  unequal  taxation,  an  invitation  to  partiality,  it  seems  to  me  that  we  would 
be  better  off  without  it.  We  had  better  have  nothing  in  the  Constitution  than  a  pro- 
vision of-  that  kind. 

There  is  another  case,  decided  by  the  Supreme  Court  of  Pennsylvania,  in  1891, 
Commonwealth  against  the  Germania  Brewing  Company,  145  Pennsylvania  State,  page 
83. 

In  that  case  the  court  held,  in  substance,  that  the  Legislature  can  subdivide  manu- 
facturing companies  into  classes,  and  that  it  can  treat  a  manufacturing  corporation 
making  gas  and  one  making  liquor  as  two  different  classes,  and  of  course  tax  them  at 
different  rates  and  treat  them  differently,  as  classes,  in  taxation.  I  merely  cite  this  to 
show  to  what  extent  this  power  of  classification  goes,  under  the  decision  of  the  State 
of  Pennsylvania,  the  State  from  w^hich  we  draw  this  general  principle  in  out  first  sec- 
tion. It  seems  to  me  to  be  an  exceedingly  dangerous  power.  It  seems  to  me  to  be  a 
pow^er  fraught  with  nothing  but  evil  to  our  people  in  the  future,  and  by  our  people  I 
mean  our  individuals  of  all  classes. 

I,  therefore,  Mr.  Chairman,  have  moved  to  amend  so  as  not  to  interfere  in  the 
slightest  degree  with  the  rest  of  this  report,  by  providing  that  "  except  as  hereinafter 
provid-ed  "  all  taxation  v/hatsoever,  v/hether  State,  local  or  municipal,  shall  be  equal 
and  uniform  upon  all  property  within  the  territorial  limits  of  the  authority  levying  the 
tax,  and  shall  be  levied  and  collected  by  general  law. 

Mr.  Hatton:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  shall  only  ask  for  a 
moment  or  two  of  the  time  of  this  committee.  It  is  with  very  great  reluctance  and  with 
something  closely  akin  to  genuine  sorrow  that  I  have  felt  called  upon  to  differ  from  my 
colleagues  on  the  committee  of  Taxation  and  Finance  upon  the  subject  treated  of  in  the 
first  section  of  that  Committee's  report.  I  do  not  desire  to  take  up  much  of  your  time, 
because  my  views  upon  this  matter  have  been  expressed  better  than  I  could  express 
them  by  the  gentleman  from  Petersburg,  who  has  just  given  his  reasons  for  his  dissent 
from  the  action  of  the  committee.  But,  Mr.  Chairman,  the  power  of  taxation  is,  In  my 
judgment,  the  greatest  powder  within  the  exercise  of  any  constitutional  government? 
The  power  to  tax  has  been  justly  characterized  as  the  power  to  destroy,  and  it  seems 
to  me  that  in  a  constitutional  government,  the  eminently  proper  function  of  a  written 
constitution  is  to  protect,  by  some  general  and  just  principle,  Its  people  against  what 
may  be  the  unwise  exercise  of  such  a  great  power. 

The  provision  reported  by  the  committee  is  really  worse  than  no  restrictive  pro- 
vision whatever.  For  my  part  I  would  rather  see  the  whole  matter  relegated  to  the 
discretion  of  the  Legislature  than  to  see  it  in  its  present  form;  and  why?  Because 
what  purports  to  be  a  restriction,  what  is  evidently  held  out  to  the  public  to  be  a  re- 
striction is  merely  one  in  words,  but  not  in  fact.    It  is  the  shadow  without  the  substance. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2629 

The  committee  has  embodied  the  shadow  and  eliminated  the  substance.  The  provision 
that  taxes  shall  be  uniform  upon  the  same  classes  of  subjects  within  the  territorial 
limits  of  the  authority  levying  the  taxes,  so  far  as  it  is  intended  to  be  restrictive,  is, 
in  fact,  only  a  delusive  form  of  words,  empty  and  ineffective  because  it  only  postpones 
power  to  do  damage  from  one  stage  of  action  to  another. 

It  transfers  the  power  to  do  injustice  to  the  making  of  the  classification  and  leaves 
that  power  wide  open  and  without  protection  or  restriction.  Inequality  in  classification 
is  as  potent  for  working  injustice  as  inequality  in  taxation  and  the  restriction  of  the 
latter  without  restricting  the  power  to  do  the  former  is  without  protection  to  the  people 
of  the  State. 

The  gentleman  from  Petersburg  (Mr.  Hamilton)  has  read  you  the  decisions  of  the 
Pennsylvania  courts,  the  highest  judicial  authority  in  a  sovereignty  which  has  this 
same  provision,  and  these  decisions  sustain  what  I  say.  This  power  of  classification 
without  restriction,  enables  the  Legislature,  and  in  fact,  invites  them,  to  put  inequali- 
ties upon  different  property,  not  so  much  by  the  taxation  as  by  classification.  It  post- 
pones the  injustice  one  degree.  I  take  it  that  this  power  of  classification  is  unre- 
strained, except  so  far  as  restraint  may  be  found  in  the  equality  clause  of  the  14th  amend- 
ment to  the  Constitution  of  the  United  States.  The  Supreme  Court  of  the  United  States, 
has  held  that  in  making  classifications  of  this  kind,  as  long  as  the  classification  is  based 
upon  any  reasonable  foundation,  upon  any  foundation  that  has  any  reasonable  relation 
to  the  classification,  it  is  not  obnoxious  to  the  equality  clause  of  the  14th  amendment 
leaving  the  field  of  action  very  wide.  It  has  been  justly  said,  and,  I  believe,  it  is  con- 
ceded by  all  authorities  upon  the  subject  of  taxation,  that  there  is  inherent  in  humanity, 
a  tendency  to  shift  burdens  from  one  to  another.  One  of  the  greatest  difficulties  in 
dealing  with  the  subject  of  taxation  in  all  sovereignties  lies  just  there.  The  personal 
equation,  and  we  all  know  what  that  means  by  this  time,  in  this  body,  enters  more 
largely  into  that  subject  than  into  any  other;  and  when  that  tendency  is  absolutely  un- 
restrained, there  is  danger. 

Now,  this  argument  will  doubtless  be  met  by  a  statement  that  up  to  1850-51  we  had 
no  restrictions  in  Virginia  on  this  subject.  True,  but  I  say  to  this  committee,  and  I 
believe  no  thinking  man  will  deny  it,  that  the  conditions  in  this  State  in  1850-51,  were 
far  different  from  the  conditions  existing  to-day,  and  which  are  likely  to  exist  during 
the  life  of  this  Constitution.  The  property  conditions  in  the  State  are  far  different,  far 
more  diverse.  The  method  of  material  development  is  different  to-day.  and  vastly  dif- 
ferent. The  method  of  selection  of  those  who  are  to  impose  taxes  is  far  different  to-day. 
The  men  who  imposed  the  taxes  in  1851  were  the  men  who  paid  the  taxes,  as  no  others 
were  eligible  to  hold  an  office  vested  with  authority  to  impose  taxes,  and  I  say  the  con- 
dition to-day  is  just  exactly  the  reverse. 

The  men  who  impose  the  taxes  to-day  are  the  men  usually  who  do  not  pay  the  taxes, 
and  as  you  get  down  from  the  State  Legislature  into  the  governing  bodies  of  the  subdi- 
visions of  the  State,  the  supervisors  in  counties  and  the  councils  in  cities  and  towns, 
that  reasoning  applies  with  even  greater  force. 

Take  the  city  councils  in  your  cities  and  look  over  their  names  on  your  tax-rolla 
and  see  what  relation  they  bear  to  the  community  in  the  matter  of  taxation.  You  v.dll 
find  that  many  of  them  do  not  even  pay  their  poll-tax,  that  many  of  them  do  not  appea- 
on  th6  tax-rolls,  except  in  their  relation  to  the  poll-tax;  that  they  are  assessed  with 
nothing  save  the  poll-tax,  and  do  not  pay  that.  I  have  seen  instances  of  it  within  my 
own  brief  experience;  and  I  ask  you,  is  it  safe,  is  it  wise,  to  leave  the  taxing  power  in  the 
hands  of  men  who  can  impose  the  taxes  and  bear  none  of  the  burdens  that  they  impose? 
Are  you  prepared  to  go  before  the  country  to-day,  to  go  before  the  people  who  support 
this  Commonwealth,  with  any  such  principle?  Can  you  expect  the  support  of  these 
people  for  any  such  principle? 

Gentlemen  of  the  Committee,  I  cannot  give  mj  sanction  to  it,  because  I  do  not  be- 
lieve it  is  right,  and  I  do  not  hesitate,  let  me  say  here,  to  vote  for  anything  in  this  Consti- 


2630  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

tiition  which  I  do  think  is  right,  and  in  voting  for  it  I  will  not  be  governed  by  any  con- 
siderations as  to  how  it  may  catch  the  unthinking  public.  I  am  not  willing  to  put  any- 
thing in  this  Constitution  for  buncombe.  If  any  matter  cannot  go  into  this  Constitu- 
tion on  its  merits,  in  my  judgment,  I  shall  vote  against  it,  I  do  not  care  how  much  of  a 
vote-catcher  it  may  be.    I  am  not  here  to  put  things  in  the  Constitution  to  catch  votes. 

But,  Mr.  Chairman,  I  do  not  by  this  explanation  mean  to  charge  this  committee 
with  putting  this  provision  in  the  Constitution  for  any  such  purpose,  I  wish  that  dis- 
tinctly understood,  because  I  believe  the  gentlemen  who  put  this  provision  in  the  re- 
port are  governed  by  just  as  high  motives  as  I  am,  and  far  be  it  from  me  to  make  any 
suggestions  to  the  contrary. 

I  believe  this  principle  set  forth  in  Section  1  arises  from  the  recognition  by  this 
committee  of  the  necessity  for  some  other  method  of  taxation  as  applied  to  corpora- 
tions. In  that  recognition  I  beg  to  say  I  agree  with  the  committee.  But  I  respectfully 
submit  that  where  that  necessity  stops  the  principle  should  stop,  and  the  principle 
should  not  be  extended  further  than  the  necessity  extends;  and  I  am  perfectly  willing 
to  make  an  exception  to  this  principle  of  equality  and  uniformity,  so  far  as  it  is  neces- 
sary to  tax  the  franchises  of  corporations.  I  believe  the  nearest  we  can  get  to  equality 
in  that  is  to  permit  an  exception  to  the  general  principle  to  cover  that  case  and  that 
case  only. 

Mr.  Chairman,  I  believe  it  is  the  proper  function  of  a  Constitution  to  protect 
minorities.  Majorities  can  always  protect  themselves.  One  of  the  great  necessities  for 
a  written  Constitution  is  the  protection  of  minorities.  There  is  no  trouble  about  the 
majority  protecting  itself;  and  as  we  apply  that  principle  to  taxation,  we  want  to  pro- 
tect the  people  who  may  not  be  able  to  get  or  to  obtain  material  representation  in  the 
taxing  body. 

Gentlemen,  for  these  reasons,  I  am  opposed  to  Section  1,  I  had  myself  prepared 
an  amendment,  but  as  the  amendment  of  the  gentleman  from  Petersburg  (Mr.  Hamil- 
ton) covers  the  same  point,  I  will  not  take  the  time  of  the  committee  to  offer  it,  but  I 
felt  it  was  due  to  myself,  in  the  dissent  I  have  put  on  record  to  this  report,  to  make 
this  explanation  to  the  committee. 

Mr.  Cameron:  Mr.  Chairman,  though  in  no  condition,  perhaps,  to  satisfy  either 
myself  or  my  audience  in  the  discussion  of  any  subject,  I  feel  impelled  to  utter  a  brief 
protect  against  what  I  must  characterize  not  as  the  assertion  of  a  principle,  but  as  the 
abandonment  and  suppression  of  a  correct  principle  of  government  contained  in  the 
first  section  of  the  report  of  the  Finance  Committee. 

I  cannot  conceive  a  more  obvious  truth  than  that  the  burdens  of  taxation  should  be 
equal  upon  all  classes  of  property.  I  find,  after  passing  from  Section  1  of  the  proposed 
ordinance,  this  provision  in  Section  4: 

The  General  Assembly  shall  provide  for  a  reassessment  of  real  estate,  and  such  real 
•estate  shall  be  assessed  at  its  fair  market  value. 

Section  5  reads: 

The  General  Assembly  shall  provide  by  law  for  the  special  and  separate  assess- 
ment of  all  coal  and  other  mineral  land  at  a  fair  market  value. 

Why  are  the  values  of  these  properties  to  be  ascertained  and  measured  by  the  fair 
price  which  they  will  bring  in  the  market,  except  that  their  value  having  been  ascer- 
tained, upon  that  an  equal  burden  of  taxation  shall  rest?  A  hundred  dollars  is  a  hun- 
dred dollars  no  matter  of  what  it  consists,  whether  real,  personal  of  other  property; 
and  when  that  value  has  been  once  ascertained,  it  is  an  exercise  of  injustice,  of  tyranny 
and  of  robbery  to  place  upon  it  any  greater  burden  than  you  would  put  on  one  hundred 
dollars  worth  of  any  other  kind  of  property. 

Let  me  say,  so  far  as  the  practical  results  obtained  by  this  report  are  concerned,  I 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA.  2631 


have  no  objection  to  offer.  On  the  contrary,  I  have  always  believed  that  franchises 
should  be  taxed.  I  shall  always  believe  that  extra  privileges  granted  by  this  govern° 
ment  should  be  required  to  pay  a  corresponding  share  of  the  burdens  of  government.  I 
have  never  believed  that  the  common  carriers  of  this  State  vs-ere  paying  a  proper  share 
of  the  burdens,  and  I  do  not  believe  that  the  provision  made  in  this  article  requires  an 
improper  share  of  the  burdens  from  them;  but  in  the  direction  of  that  policy  which  led 
the  Chinaman  to  burn  his  house  down  whenever  he  wanted  roast  pig,  I  think  this  com- 
mittee has  gone  to  the  length  of  destroying  an  essential  and  fundamental  principle, 
after  it  had  attained  a  fair  and  proper  way  of  placing  a  commensurately  fair  burden 
upon  the  corporations. 

It  seems  to  me  when  you  strike  this  great  principle  of  equality  and  uniformity  of 
taxation  from  this  Constitution,  you  place  it  in  the  power  of  the  preponderance  of  any 
interest  in  any  taxing  or  legislative  body  to  burden  the  others  with  an  unfair  share  of 
the  expense  of  conducting  the  government.  Under  this  section  there  is  no  reason  in 
the  world  why  the  Legislature  of  Virginia,  or  the  common  council  of  any  city  or  town 
in  the  State,  or  the  board  of  supervisors  of  any  county,  should  not  assess  a  hundred 
dollars  worth  of  real  estate  at  one  price  and  a  hundred  dollars  worth  of  personal  prop- 
erty at  another. 

There  is  no  reason  whatever,  if  your  legislative  bodies,  central  and  in  the  different 
localities,  should  be  dominated  by  influences  opposed  to  both  real  and  personal  property, 
that  they  should  not  seek  to  relieve  themselves  of  their  fair  and  equal  share  of  the  ex- 
penses of  the  government  by  laying  an  improper  and  inordinate  tax  upon  all  the  real 
and  personal  property  under  their  jurisdiction. 

Gentlemen  have  imagined  here  the  presence  in  this  Commonwealth  of  malign  in- 
fluences, who  wish  to  rise  to  wealth  by  a  system  of  robbery  upon  the  people.  If  that  be 
true,  and  the  power  of  these  corporations  is  such  as  has  been  alleged  here,  that  they 
find  no  difficulty  in  entering  a  legislative  hall  and  polluting  the  presence  of  our  courts 
tc  the  accomplishment  of  their  ends,  I  can  imagine,  Mr.  Chairman  and  gentlemen  of  the 
committee,  the  building  of  no  more  golden  road  to  the  accomplishment  of  their  purpose 
than  by  striking  down  this  well-established  principle  of  government,  and  opening  the 
door  by  which,  if  they  do  obtain  control  of  the  legislative  bodies  or  of  the  lower  taxa- 
tion authorities  in  this  Commonwealth,  they  can  shift  the  burden  from  themselves  to 
the  real  body  of  the  people.  But  over,  above,  beyond  and  beneath  what  may  be  the 
practical  result  of  the  incorporation  of  this  lack  of  principle  into  our  fundamental  law, 
with  me  is  the  consideration  that  it  is  inherently  wrong,  repugnant  to  every  sense  of 
fairness,  justice  and  good  government. 

Who.  in  the  conduct  of  any  ordinary  business  of  life,  in  which  a  division  of  interest 
is  contemplated,  Avould  say  that  the  principle  of  the  fair  ascertainment  of  value,  and 
then  an  equal  pro  rata  tax  upon  that  value,  is  not  the  only  proper  way  of  arriving  at 
the  share  of  payment  to  be  made  by  each  contributing  party. 

I  remember  once  to  have  been  for  some  years  a  citizen  of  a  town  which  the  common 
council  was  by  turns  dominated  by  the  classes  which  owned  the  real  estate  in  the  city, 
and  by  those  who  controlled  the  mercantile  classes;  and  we  passed,  by  a  succession  of 
movements,  through  the  positions  of  punishing  the  real  estate  holders  for  the  money 
necessary  to  carry  on  the  tow^n,  and  then,  on  the  change  in  the  common  council,  the 
pendulum  would  swing,  the  merchants  would  grow  tired  of  submitting  to  exactions  in 
the  way  of  licenses  which  were  unfair,  and  they  would  obtain  possession  and  throw  the 
burden  the  other  way.  This  was  possible  even  when  we  had  the  protection  in  our 
organic  law  of  a  declaration  of  equality  and  uniformity  of  taxes;  and  it  seems  to  me  it 
would  follow  as  of  necessity  and  universally  upon  the  adoption  of  a  section  containing 
a  lack  of  principle,  such  as  this. 

I  see  no  good  object  to  be  attained  by  it.  I  have  tried  to  think  what  would  be  said 
by  the  gentlemen  who  advocate  this  radical  departure.  It  cannot  be  necessary,  as  has 
been  stated,  to  carry  out  the  purpose  of  arriving  at  a  just  amount  of  taxation  to  be 


2632  DEBATES  OF  THE  CONSTITUTIOi^fAL  CONVENTION  OF  VIRGINIA. 

developed  upon  the  corporations,  particularly  of  that  class  of  corporations  to  whom 
surrender  of  the  eminent  domain  has  been  made.  It  may  be  that  the  consideration 
which  has  impelled  the  committee  is  that  it  might  be  necessary  to  carry  out  the  con- 
templated change  of  segregating  the  subjects  of  taxation  between  the  State  and  the 
various  sub-divisions,  but  even  then,  what  would  be  the  necessity  or  where  would  be 
the  right  of  allowing  a  municipality  to  deal  with  different  classes  of  property 
in  a  different  way.  I  cannot  see,  and  I  do  not  believe  that  any  logical  mind  can 
see,  a  single  rational  defence  to  the  proposition  that  $100  worth  of  value  in 
this  State  would  be  taxed  more  than  any  other  $100;  and  that  is  and  must  be 
the  logical  conclusion  of  an  application  of  this  section  to  the  practical  affairs  of 
government.  If  it  does  not  mean  that  the  Legislature  and  the  councils  and  the 
boards  of  supervisors  may  do  that,  it  does  not  mean  anything.  If  it  does  not  mean 
that  $100  worth  of  real  estate  in  the  city  of  Richmond  may  be  taxed  at  one  rate  and 
$100  worth  of  personal  property  in  the  city  of  Richmond  may  be  taxed  at  another  rate, 
if  it  does  not  mean  that  a  tobacco  factory  worth  $10,000  may  be  taxed  at  one  rate,  and 
that  a  carpenter  shop  worth  $10,000  may  be  taxed  at  another  rate,  if  it  does  not  mean 
that  a  $10,000  mine  in  your  county,  valued  fairly  at  $10,000,  may  be  taxed  $500  a  year, 
and  an  iron  mine  in  your  county,  worth  $10,000  may  be  taxed  $200  a  year  or  $1,000  a 
year,  or  that,  to  broaden  the  application,  any  property  of  the  same  value  in  any  section 
of  the  State  may  be  taxed  a  greater  or  a  higher  annual  rate  than  the  same  class  of 
property,  only  of  different  expression,  or  name,  in  another,  then  I  am  utterly  unable  to 
understand  the  force  of  language  and  the  application  of  law. 

If  the  committee  has  found  or  finds  any  conflict  between  the  maintenance  of  what  I 
regard  to  be  a  sacred  and  necessary  principle  in  the  Constitution,  and  the  arrival  at 
proper  results  in  the  taxation  of  the  class  of  corporations  to  which  I  have  alluded,  then 
I  appeal  to  the  committee  and  to  the  members  of  the  Convention,  and  promise  my  aid 
to  any  measure  or  course  of  measures  which  will  legitimately  carry  out  the  object  of 
deriving  a  proper  amount  or  share  of  revenue  from  those  corporations. 

But  let  us  not  destroy  the  great  safeguard  that  exists  for  every  man  in  this  Com- 
monwealth in  order  to  accomplish  a  special  purpose  against  one  class  of  property. 

As  I  understand  the  amendment  offered  by  my  colleague  from  Petersburg  (Mr. 
Hanailton),  it  does  not  attack,  it  does  not  affect,  in  the  slightest  degree,  the  carrying 
into  execution  of  the  ratio  of  taxation  of  these  corporations  which  the  committee  has 
declared  to  be  just  and  proper,  to  which  I  here  pledge  my  assent,  my  voice  and  vote. 
That  being  the  special  object  which  appears  on  the  surface  here,  and  that  having  been 
accomplished  I  beg  you  gentlemen,  with  the  little  strength  either  of  thought  or  voice 
that  I  have  now  at  my  command  not  to  go  further  to  endanger  the  peace  and  the  rights 
of  all  of  these  people  by  taking  from  them  that  safeguard  which  guarantees  that  this 
great  government  shall  deal  with  every  man  and  every  class  of  property  owned  by  him 
with  equal  hand. 

Provide  for  the  ascertainment  properly  of  the  full  value  of  all  the  property,  but 
when  so  ascertained,  do  not  make  fish  of  one,  flesh  of  another  and  fowl  of  another. 
Treat  all  alike.  That  is  justice,  and  it  is.  the  basic  idea  of  the  government  under  which 
we  live.  With  the  highest  respect  for  this  committee  and  for  the  intelligent  work  it 
has  done,  I  am  constrained  to  believe  and  to  say  that  they  have  made  a  mistake  in  this 
first  section,  and  I  hope  it  will  not  receive  the  endorsement  of  this  committee. 

Mr.  Meredith:  Mr.  Chairman  and  gentlemen  of  the  committee,  you  will  readily 
give  us  credit  for  at  least  believing  that  there  are  some  reasons  for  the  provision  which 
has  been  recommended  by  us;  especially  if  the  thing  we  recommend  is  the  monstrous 
evil,  that  has  been  portrayed  by  these  gentlemen  who  are  opposing  it.  If  you  will  ex- 
amine the  signatures  to  that  report  you  will  see  that  it  comprises  some  of  the  men  who 
have  had  a  great  deal  to  do  with  the  financial  features  of  the  State  government  for  the 
last  seven  or  eight  years,  upon  the  finance  committee  of  the  Senate,  and  upon  the 
finance  committees  of  the  House.    They  are  men  who  understand  somewhat  the  subject 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA' 


2633 


of  taxation,  men  who  have  been  brought  in  contact  with  it,  and  have  seen  where  the 
dIfSciilties  of  it  lie.  It  is  fair  to  presume  that,  in  addition  to  their  experience,  they 
have  a  sense  of  justice  that  would  prevent  them  from  desiring  to  impose  any  unfair  tax 
upon  any  class  of  people.    I  think  that  is  a  fair  presumption. 

In  addition  to  that,  Mr.  Chairman,  I  represent  a  constituency,  which  according  to 
the  pictures,  that  have  been  painted  here  by  these  gentlemen,  might  suffer  as  much  as 
any,  and  yet  I  do  not  hesitate  to  say  that  I  do  not  believe  the  present  idea  of  taxation 
in  this  State  is  fair  to  the  larger  part  of  it;  that  it  is  a  grievous  and  unjust  burden, 
and  that  the  large  portion  of  this  State  has  been  for  years  paying  an  unjust  portion  of 
the  taxes  of  the  State. 

Mr.  Chairma^n,  I  am  glad  to  say  that  I  am  supported  in  that  view  by  the  gentleman, 
who  was  Chairman  of  this  committee  and  was  obliged  to  resign  his  position  in  this 
body  because  of  ill-health;  a  man  who  has  as  much  connection  with  the  financial  enter- 
prises in  this  State,  as  any  man  I  know  of,  from  banks  to  manufacturing  establishments 
and  on  to  railroads,  while  he  heartily  approved  of  this  proposition  that  there  should  be 
an  equality  of  taxation,  as  our  opponents  are  claiming,  yet  he  held  that  it  could  not  be 
gotten  at  under  the  present  system  of  taxation.  He  recognized  there  is  no  class  of  peo- 
ple in  this  State  who  have  taken  greater  advantage  of  the  present  provision  in  the 
Constitution  than  those  who  have  owned  the  property  they  could  hide. 

Those  of  you.  who  own  property  that  cannot  be  hidden,  have  been  forced,  if  the 
assessment  has  been  fair,  to  pay  your  fair  share  of  the  taxes,  but  those  who  have  been 
able  to  hide  their  property,  have  been  able  to  avoid  what  has  been  simply  a  fair  share 
of  the  burden. 

Mr.  Chairman,  it  would  be  a  little  surprising  that  both  myself  and  the  gentleman, 
who  was  the  chairman  has  now  such  connection  with  the  financial  institutions  in  this 
State,  should  come  and  offer  the  provision,  which  is  contained  in  this  section,  if  it  is 
the  monstrosity  that  has  been  painted  here  by  the  gentleman  who  preceded  me.  'Mv. 
Chairman,  let  me  test.  I  do  not  say  the  sincerity — I  will  not  say  that,  because  I  do  not 
doubt  the  sincerity — but  let  me  test  the  information  of  the  gentlemen,  who  have  pre- 
ceded me  on  this  question,  when  they  have  stated  on  this  floor  that  rather  than  have 
the  provision  which  we  offer  in  this  section  they  would  have  no  restriction  upon  the 
Legislature.  How  can  that  be  the  serious  determination  of  a  man  who  can  appreciate 
what  would  be  the  extent  of  having  restriction  in  the  Constitution?  What  earthly  pro- 
protection  would  you  have?  Yet  you,  in  the  earnestness  of  your  remarks,  have  said 
that  you  would  rather  have  nothing  in  this  Constitution,  no  restrictions,  no  limitation, 
no  protection  whatever  to  the  system  of  taxation  than  to  have  this  provision  that  is 
here  offered. 

Gentlemen,  I  respectfully  submit  that  when  you  come  to  discuss  the  question  of 
taxation,  it  is  not  a  thing  that  you  can  weave  out  of  your  mind  in  five  minutes.  It  is 
not  a  thing  as  to  which  one's  mind  should  jump  to  conclusions.  It  has  been  the  matter  of 
serious  and  earnest  study  by  some  of  the  ablest  minds  of  this  country,  and  their  thoughts 
and  conclusions  are  worthy  of  consideration  before  3'ou  express  any  crude  ideas  upon 
the  srbject. 

So  far  as  I  am  concerned,  if  these  gentlemen  who  are  opposing  this  measure  can 
stand  it.  I  will  agree  that  nothing  shall  be  put  in  the  Constitution.  I  will  accept  the  pro- 
position, if  you  will,  go  heartily  with  me.  I  will  go  with  you,  but  I  must  state  that  I  do 
not  believe  it  will  be  wise  to  pursue  that  course.  To  say  that  you  would  rather  not 
have  some  restriction  in  the  Constitution,  so  as  to  at  least  have  a  system  of  taxation  by 
which  men  of  the  same  class  shall  be  taxed  alike,  that  you  do  not  want  even  that  pro- 
tection, but  would  rather  have  none  at  all.  is,  I  respectfully  submit,  the  expression  of 
an  unthought  of  thought,  if  I  may  so  express  myself;  certainly  an  ill  considered  idea. 

Mr.  Chairman  and  gentlemen  of  the  committee  let  us  see  the  origin  of  the  language 
we  have  in  this  report.  It  is  taken,  sir,  verbatim  from  the  Pennsylvania  Constitution. 
If  there  is  any  State  in  this  Union  that  is  regarded  by  writers  upon  economics  as  far 
16G — Const.  Deb. 


2634 


DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OE  VIRGINIA. 


in  advance  of  any  other  State  upon  the  subject  of  taxation,  it  is  the  State  of  Penn- 
sylvania. 

Are  the  gentlemen  aware  of  it?  Gentlemen,  we  have  the  right  to  ask  that  you 
study  this  subject  before  you  attack  us  for  making  a  report  for  the  benefit  of  the  State. 
Nearly  all  the  economic  writers  will  tell  you  that  the  State  of  Pennsylvania  is  far  in 
advance  of  the  other  States  of  this  Union  upon  the  subject  of  taxation.  We  have 
adopted  verbatim,  I  say,  the  language  of  the  Pennsylvania  Constitution. 

Mr.  Marshall:    How  long  has  that  been  in  operation? 
*Mr.  Meredith:    Since  1873,  sir. 

If  the  chairman  of  the  committee  will  allow  me  to  have  his  book,  I  will  call  your 
attention  while  I  am  on  that  subject  to  the  States  that  have  no  limitation  whatever 
upon  their  Legislatures  as  to  taxation — just  what  we  had  up  to  1851.  They  are  the 
States  of  Connecticut,  Delaware,  Maryland,  Massachusetts,  New  Hampshire,  New 
Jersey,  New  York,  Rhode  Island,  and  Vermont,  the  tliriftest,  w^ealthiest  States  in  the 
Union  where  the  people  are  not  ground  down  by  injustice  and  unequal  taxation,  but 
States  that  have  greatly  prospered  along  lines  of  manufactures  and  works  and  internal 
improvements.  Those  States  have  no  provision,  no  restrictions  whatever  upon  their 
Legislatures. 

Mr.  R.  WaRon  Moore:  New  York,  in  its  recently  revised  Constitution,  omits  any 
provision  at  all. 

Mr.  Meredith:  Yes,  sir.  When  you  come  to  the  States  of  Colorado,  Georgia, 
Idaho,  Montana,  Louisiana,  and  Missouri,  you  will  find  they  have  virtually  the  same 
principle  as  the  Pennsylvania  Constitution.  There  are  but  eight  or  nine  States  that 
have  a  provision  anything  like  the  one  we  ha,ve  in  our  Constitution. 

What  is  the  reason  of  this?  The  people  of  those  States  had  some  reason  for  it. 
It  is  simply  because  they  have  had  the  idea  that  actual,  tangible  property  is  not  the 
only  thing  to  look  at,  but  that  it  is  the  faculty  or  feature  of  productivity  that  you  must 
consider. 

Mr.  Cameron:  I  dislike  to  interrupt  the  gentleman,  but  I  wish  to  ask  whether  it 
is  possible  to  reach  that  by  assessment? 

Mr.  Meredith:  No,  sir;  it  is  impossible  to  reach  it  by  assessment,  and  it  is  so 
recognized.  The  principle  is  that  there  is  no  equality  of  taxation  unless  you  have  a 
classification  of  subjects,  those  subjects  that  come  in  immediate  competition.  That  is 
the  principle.  It  must  be  the  subjects  of  taxation  that  come  into  immediate  competi- 
tion.   You  must  divide  the  subjects  of  taxation  into  classes. 

But  I  am  off  from  what  I  started  to  say.  I  have  called  your  attention  to  those 
States  which  have  no  limitation  upon  the  Legislatures,  and  that  instead  of  suffering 
and  having  their  citizens  driven  from  their  borders  by  unequal  taxation,  they  are  the 
thriftiest  and  the  wealthiest  States  in  the  Union.  I  have  here  a  report  of  the  Tax 
Commission  of  the  State  of  Minnesota,  which  is  suffering  under  a  general  property  tax, 
as  called  by  economists,  the  same  system  that  we  have  in  this  State.  They  recom- 
mended and  prepared  a  bill  for  the  Legislature  of  that  State  to  pass,  asking  that  among 
the  amendments  to  the  Constitution  there  shall  be  this:  "All  taxes  shall  be  uniform 
upon  the  same  class  of  subjects  within  the  territorial  limits  of  the  authority  levying  the 
tax,  and  shall  be  levied  and  collected  under  general  laws  for  public  purposes." 

Mr.  R.  Walton  Moore:    That  report  is  just  issued. 

Mr.  Meredith:    Yes,  it  is  just  issued.    It  is  a  report  for  1902. 

Mr.  Fairfax:  And  that  is  a  report  of  a  commission  which  was  appointed  for  this 
especial  purpose  in  the  State  of  Minnesota,  which  has  the  same  provisions  in  its  Con- 
stitutions that  we  have  in  our  old  Constitution;  virtually  the  same  provision  as  that 
proposed  in  the  amendment  of  the  gentleman  from  Petersburg  (Mr.  Hamilton).  This 
commission  has  been  in  session  for  the  last  12  or  13  months,  and  has  just  made  its 
report. 

Mr.  Meredith:    I  stated,  Mr.  Chairman,  that  we  had  virtually  been  free  also  until 


DEBATES  OF  THE  COXSTITUTIOJs^AL  CONVEXTIOX  OF  VIEGIXIA. 


2635 


1851,  and  then  we  put  for  the  first  time  in  our  Constitution  the  requirement  of  equality 
what,  from  the  language  of  the  gentleman  from  Petersburg  (Mr.  Cameron),  is  sup- 
posed to  be  necessarj^  for  the  life  of  a  State.  From  what  he  said  one  would  think  that 
we  could  not  possibly  live  under  any  system  of  government  unless  it  should  be  declared 
that  taxes  should  be  equal  and  uniform.  Yet  we  lived  under  it  until  1S51;  and  it  was 
then  put  in  for  on-e  single  purpose,  as  declared  by  the  Supreme  Court  of  the  State  in  the 
case  of  Slaughter,  in  13th  Grattan,  and  that  was  to  protect  slave  property.  That  was 
the  sole  purpose  for  which  it  was  put  in  there.  You  will  find  that  when  they  put  that 
provision  in  the  Constitution  of  1851,  seeing  how  dangerous  it  was  to  require  that  all 
taxation  should  be  equal  and  uniform,  no  matter  w^hat  might  be  the  class  of  property, 
no  matter  what  might  be  the  nature  of  it,  that  all  should  be  taxed  equally,  at  the  same 
rate  of  taxation— they  had  to  put  in  there  also  that  there  might  be  levied  taxes  upon 
salaries,  incomes  and  licenses.  Whsit  did  that  additional  provision  mean?  Yv^hat  is  the 
system  of  licenses?  Is  it  equality  of  taxation  except  among  the  class  upon  which  it  is 
imposed?  Do  you  not  know  that  you  do  not  tax  the  liquor  dealer  like  you  do  the  mer- 
chant who  sells  dry  goods?  Do  you  not  know  you  do  not  tax  the  lawyer  like  you  do  the 
physician?  Do  you  not  know  you  do  not  tax  the  merchant  like  you  do  the  manufacturer? 
It  is  simply  a  taxation  based  upon  the  theory  of  the  productivity  of  the  property,  and 
not  upon  the  property  itself,  and  the  tax  is  according  to  the  classes  In  w^hich  it  is  laid. 

Mr.  Cameron:  I  desire  to  interrupt  the  gentleman  for  one  moment.  I  think  he  is 
assuming  a  little  too  much  ignorance  on  my  part.  I  do  not  claim  to  have  all  the  wisdom 
in  the  world,  or  even  so  much  as  has  been  exercised  by  this  committee,  but  I  must  be 
given  credit  for  an  ordinary  amount  of  acquaintance  with  the  affairs  of  government  of 
my  State  and  with  its  laws.  I  knov/  that  licenses  are  imposed  where  the  values  cannot 
be  ascertained.  I  know  that  those  licenses  are  supposed  to  be  imposed  VN-ith  reference 
to  the  incomes  derived  from  the  business  or  the  professions.  I  also  know  that  assess- 
ments and  the  arriving  at  value  under  assessments  is  supposed  to  be  done  by  taking 
the  productivity  of  the  propert  itself  as  the  basis  of  its  value. 

Mr.  Meredith:  Mr.  Chairman,  I  did  not  deny  that  the  gentleman  knew  the  facts, 
but  what  I  was  calling  attention  to  was  he  did  not  recognize  the  theory  upon  which  the 
facts  had  come  in  existence.  If  his  theory  is  right,  why  did  you  not  say  there  should  be 
a  license  tax  of  one  hundred  dollars  upon  anybody  doing  any  kind  of  business?  If  there 
must  be  equality  of  taxation,  if  there  shall  alwaj^s  be  the  same  tax,  why  do  you  say  a 
tax  upon  one  man  shall  be  one  thing  for  doing  one  class  of  business,  and  another  tax 
upon  another  man  for  doing  another  kind  of  business,  and  another  tax  upon  another 
man  for  doing  still  another  kind  of  business?  It  is  because  it  is  recognized  that  equality 
and  injustice,  upon  the  principle  upon  which  our  wish  is  to  be  based,  that  is  to  say,  that 
the  same  rate  of  taxation  must  be  laid  upon  everybody. 

We  are  contending  that  that  proposition  is  a  false  theory.  That  the  proper  way  is 
lo  put  the  subjects  into  classes  and  w^hen  you  have  them  in  classes,  then  all  the  people 
in  a  certain  class  shall  be  taxed  one  way,  if  necessary,  and  all  in  another  class  shall  be 
taxed  in  another  way.  The  basis  of  taxation  should  not  be  property,  but  its  produc- 
tivity, because  you  do  not  tax  propertj';  it  is  the  person  you  tax.  You  get  at  the  tax 
upon  the  person  by  reason  of  the  value  of  his  property  or  any  other  standard.  What 
has  the  State  to  do  with  property?    It  is  the  person  she  taxes. 

Therefore  when  we  come  to  lay  a  system  of  taxation  it  should  be  upon  classes  of  sub- 
jects, for  the  purpose  of  seeing  what  each  person  ought  to  bear.  Why  should  a  man, 
who  is  in  one  class  of  business,  have  the  same  license  tax  put  upon  him  as  is  put  upon 
another  man  in  another  class  of  business?  Do  the  men  in  the  different  classes  of  busi- 
ness come  in  contact  with  each  other?  Are  the  circumstances  the  same?  Are  their  in- 
comes the  same?  Are  their  methods  of  making  money  the  same?  Are  their  advantages 
the  same?  There  cannot  be  any  system  of  equality  of  taxation  unless  it  be  upon  the 
basis  of  the  classification  of  the  subjects  of  immediate  competition. 

Mr.  Chairman,  I  would  not  read  an  authority  to  this  body  except  for  the  fact  that 


2636  DEBATES  OF  THE  COJsTSTITUTIONAL  CONVENTIOlSr  OF  VIRGINIA. 

these  gentlemen  have  stood  here  and  talked  as  if  we  were  advocating  a  theory  that  is 
wild  and  unknown.  I  want  to  call  your  attention  to  a  statement  of  a  writer,  to  whom 
I  respectfully  submit,  any  man,  who  has  considered  this  subject,  will  give  great  con- 
sideration. I  speak  of  David  A.  Wells,  one  of  the  greatest  economic  writers  of  this 
country: 

Scientifically  considered,  it  means  the  making  of  the  burden  of  taxation  equal  upon 
all  subjects  of  immediate  competition. 

And  that  is  the  true  principle  that  where  one  man  comes  in  competition  with 
another,  he  shall  bear  the  same  burden  as  the  other  man;  but  where  the  advantages 
and  the  circumstances  are  different  as  to  different  classes,  then  the  law  has  the  right 
to  tax  according  to  the  class,  and  it  does  not  do  an  injustice  to  any  man  by  taxing 
;npon  that  theory.    Says  he  again: 

It  is  also  well  to  remember  that  when  the  term  "  uniform,"  in  respect  to  taxation 
is  used,  it  is  essentially  the  same  and  that  uniformity  of  taxation  does  not  consist  in 
the  payment  of  the  same  amount  by  each  tax-payer,  but  that  the  proportion  of  the 
value  of  each  particular  class  of  that  subject  which  each  party  pays  in  taxation  to  the 
State  shall  be  everywhere  the  same. 

^ow,  Mr.  Chairman,  I  want  to  call  your  attention  to  another  thing  that  these  gen- 
tlemen seem  to  have  misunderstood,  as  to  the  object  we  had  in  putting  this  provision  in 
this  report.  They  seem  to  think  that  it  is  giving  to  the  Legislature  more  power  than  it 
would  have  if  you  had  nothing  in  the  Constitution  about  it.  That,  gentlemen,  is  not 
borne  out  by  the  history  of  the  original  draft  of  this  idea  in  the  Pennsylvania  Consti- 
tution. The  fact  is  that  up  to  1873  Pennsylvania  had  no  restriction  in  her  Constitution. 
She  stood  like  Virginia  up  to  1851,  with  an  unlimited  power  in  the  Legislature  on  the 
question  of  -taxation.  But  it  was  found  that  by  manipulating  the  Legislature  different 
individuals,  on  the  same  classes,  would  have  different  rates  of  taxation  imposed  upon 
them.  They  were  able  to  get  an  unfair  system  of  taxation,  by  not  having  uniformity 
as  to  class.  This  provision  was  put  into  the  Constitution  for  the  purpose  of  restricting 
the  Legislature.  Yet  the  gentlemen  who  have  preceded  me  talk  as  though  this  provision 
gave  a  greater  power  to  the  Legislature  than  it  would  have  if  there  was  no  provision  at 
all.  The  historic  fact  is  that  it  was  put  into  the  Constitution  of  Pennsylvania  for  the 
very  purpose  of  preventing  injustice;  in  order  that  the  true  theory  of  taxation  should 
be  carried  out,  so  that  it  should  not  be  possible,  that  a  man  in  one  class  should  have  one 
rate  of  taxation,  through  favoritism,  and  that  a  man  in  the  same  class  should,  through 
unjust  discrimination,  have  a  different  rate.  So  I  call  your  attention  to  the  historic  fact 
that  this  provision  was  put  into  the  Constitution  for  the  express  purpose  of  restricting 
the  Pennsylvania  Legislature  and  to  make  it  act  fairly,  according  to  the  true  rule, 
namely,  that  all  persons  in  the  same  class  should  stand  alike. 

That  is  the  history  of  it,  and  I  respectfully  submit  that  these  gentlemen,  when 
they  say  that  they  would  rather  have  nothing  in  the  Constitution  than  to  have  this 
provision  are  ignoring  this  historic  fact,  as  well  as  ignoring  the  benefit  to  be  derived 
from  it  as  a  system  of  taxation,  namely,  that  all  men  of  the  same  class  shall  have  jus- 
tice done  them,  and  that  there  shall  be  equal  and  uniform  taxation  between  all  the  peo- 
ple of  the  same  class. 

Mr.  Hamilton:  I  would  like  to  ask  the  gentleman  if  he  will  give  some  reason  why 
it  is  ever  right  to  have  a  different  rate  of  taxation  upon  different  classes  of  property, 
if  that  property  is  fairly  valued? 

Mr.  Meredith:  Because,  Mr.  Chairman,  it  is  absolutely  impossible  to  get  at  what 
you  call  the  market  values  of  some  classes  of  property.  You  cannot  get  at  the  market 
value  of  the  railroads,  and  we  do  not  propose  to  do  it  in  this  report.  We  offer  the 
scheme  of  railroad  taxation  contained  in  this  report  really  as  a  compromise  measure, 
for  what  we  thought  was  a  better  scheme  of  taxation.    But  in  order  to  satisfy  the  rail- 


DEBATES  OF  THE  COXSTTTUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2637 


roads  and  not  to  get  too  much,  taxes  out  of  them  immediately  we  adopted  this  com- 
promise. It  is  impossibe  to  give  the  market  value  of  railroad  property  and,  in  the  same 
way,  it  is  impossible  to  give  the  market  value  of  franchises. 

Mr.  Hamilton:  Will  the  gentleman  allow  me  to  ask  him  how  he  expects  to  get  at 
the  value  of  the  thing  he  taxes,  if  he  is  not  going  to  take  valuation  as  the  basis? 

:\Ir.  ::\Ieredith:  I  have  said  it  is  impossible  to  get  at  the  actual  market  value.  It 
has  no  actual  market  value.  It  has  a  value  which  the  several  States  get  at  by  different 
systems  of  taxation,  and  they  do  it  just  as  far  as  they  are  able  to  do  it,  some  in  one 
way  and  some  in  another.  Some  have  the  franchise  value  fixed  by  the  gross  earnings; 
some  by  the  net  earnings  of  the  road;  some  by  the  market  value  of  the  stock  plus  the 
market  value  of  the  bonds  not  above  par;  some  by  the  valtie  of  the  stock,  and  others 
by  excluding  the  stock  and  bringing  in  the  bonds.  In  other  words,  there  is  a  groping 
in  the  dark  among  scientists  of  this  country  to-day  who  are  trying  to  get  at  a  proper 
system  of  taxation  for  these  corporations,  in  order  that  they  may  bear  their  fair  share 
of  the  taxes.  It  is  impossible  to  state,  as  yet,  what  is  the  true  principle.  It  is  just  as 
impossible  to  state  that  as  to  state  absolutely  anything  else  that  is  not  settled,  because 
the  facts  have  not  been  ascertained  upon  which  to  base  a  final  theory. 

Mr.  Chairman,  this  idea  that  my  friend  has,  of  having  what  he  calls  equal  taxation, 
or  equal  and  uniform  taxation  upon  all  persons,  is  going  back  to  what  the  economists 
of  to-day  tell  us  is  not  only  an  exploded  theory,  but  the  grossest  injustice.  It  is 
denounced  by  every  text-Avriter.  They  all  say  that  it  allows  the  classes  of  property 
that  otight  to  be  taxed  to  escape  and  puts  the  burden,  finally,  upon  a  few.  That  vvhen 
you  tmdertake  to  tax,  according  to  a  general  property  tax,  you  are  doing  the  grossest 
injustice.  It  was  easy,  in  olden  times,  when  the  classes  of  property  were  but  few, 
whe^n  it  was  nearly  all  visable,  when  it  was  land  or  horses  or  cows  or  furniture  or 
jewelry.  It  was  easy  to  have  a  general  property  tax.  Btit  the  State  of  society  is  dif- 
ferent now.  There  are  htmdreds  of  different  classes  of  property  that  you  cannot  put 
your  hand  on.  Don't  you  know  that  values  have  been  sub-divided  by  stocks  and  bonds-- 
and  things  of  that  kind  to  such  an  extent  that  it  is  absolutely  impossible  to  reach  them 
all  by  a  general  property  tax.  I  say  you  will  find  it  is  absolutely  impossible  to  apply 
the  old  rule  of  a  general  property  tax.  You  may  take  every  writer  on  economics  and 
you  will  find  that  statement  made.  You  may  take  this  work  from  which  I  have  read, 
Wells,  or  the  work  by  ''Seligman"  and  you  will  find  that  both  denounce  it  as  absolutely 
unjust  to  the  man  who  owns  visible  personal  property,  to  the  man  who  lives  in  the 
country  and  has  his  cow  and  his  horse  that  can  be  gotten  at  by  the  assessor;  while 
the  man  who  has  a  bond  in  his  pocket  cannot  be  gotten  at.  We  mtist  recognize  that 
system  of  taxation  as  unjust.  No  man  can  say  that  I,  with  a  hundred  dollar  bond  in 
my  pocket,  ought  to  escape  taxation,  while  the  man  who  has  a  hundred  dollar  horse  or 
cow  should  pay  it.  Xo  man  can  say  that  is  a  fair  principle;  and  yet  that  principle 
exists  in  our  Constitution  to-day;  and  the  application  of  it  has  been  found  to  work  the 
grosses  injustice. 

Mr.  Cameron:  If  I  have  a  bond  for  a  hundred  dollars  in  my  pocket  which  you 
cannot  find,  and  you  have  a  cow  worth  a  hundred  dollars  in  your  back  yard  where- 
everybody  can  see  it,  is  there  any  inequality  of  burden  in  taxing  you  40  cents  on  $100 
on  your  cows,  and  taxing  me  40  cents  on  $100  on  my  bonds?  I  want  to  ask  if  there  is 
anything  in  the  announcement  of  what  is  said  to  be  a  principle  in  Section  1  of  this 
report,  that  will  enable  you  to  get  at  the  bond  any  better  than  you  do  now. 

Mr.  Meredith:  Yes,  sir;  because  it  allows  us  to  tax  the  franchise  according  to 
what  the  State  may  deem  the  franchise  value  of  each  class  of  corporations. 

Mr.  Cameron:  Has  not  every  speaker  who  has  antagonized  Section  1,  declared 
that  they  had  no  opposition  to  make  to  the  provision  with  regard  to  the  taxation  of 
franchises,  and  is  not  the  amendment  so  drawn  as  not  to  affect  the  report  of  the  com- 
mittee in  that  respect. 

Mr.  Meredith:    I  am  aware  that  the  statement  has  been  made  without  due  com 


2638 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


sidera.tion,  for  you  declare  that  the  tax  rate  shall  be  equal,  and  by  doing  that  you 
destroy  the  theory  of  equalization  of  taxation.  We  do  not  provide  for  different  rates  in 
this  report.  We  leave  the  Legislature  to  say  whether  the  merchant  selling  dry  goods 
shall  have  the  same  rate  of  taxation  put  upon  him  for  the  use  of  his  franchise  that  the 
railroad  has  for  the  use  of  its  franchise,  when  you  cannot  get  at  the  market  value  of 
either. 

Mr.  Thornton:  Does  the  word  "  uniform,"  in  the  report  of  the  committee,  mean  the 
same  as  equal? 

Mr.  Meredith:  It  does,  as  to  classes.  There  is  no  doubt  about  it.  There  is 
decision  after  decision  to  that  effect,  in  recognition  of  that  principle. 

Mr.  Carter:  I  would  like  to  ask  the  gentleman  if  Section  3,  beginninig  in  the  fourth 
line,  does  not  provide  for  the  taxation  of  franchises,  and  also  to  ask  whether  the  section 
now  under  consideration  does  not  give  to  the  Legislature  and  to  municipal  bodies  the 
power  to  discriminate  between  different  classes  of  real  estate,  for  instance? 

Mr.  Meredith:  No  sir;  I  do  not  believe  anything  of  the  kind  as  to  real  estate;  but 
it  can  have  a  different  rate  of  taxation  between  one  class  of  manufacturing  companies 
and  another  class.  It  can  tax  a  gas  company  and  an  electric  power  company  on  its  fran- 
chises, at  a  higher  rate  of  taxation  than  the  man  who  is  simply  selling  dry  goods.  The 
value  of  the  franchise  to  the  man  who  is  selling  dry  goods  is  nothing  in  the  world  but 
a  protection  from  individual  debt,  while  the  value  of  a  franchise  to  an  electric  com- 
pany or  to  a  gas  company  is  the  use  it  can  make  of  the  streets,  and  the  monopoly  it  has 
in  the  community,  and  therefore  the  rate  of  taxation  should  be  higher  upon  one  than 
upon  the  other;  but  all  who  are  in  the  same  class  should  stand  alike. 

Mr.  Hamilton:  I  understood  you  to  say  that  there  cannot  be  a  difference  in  the 
rate  of  taxation  on  different  kinds  of  real  estate. 

Mr.  Meredith:    So  far  as  I  am  aware. 

Mr.  Hamilton:  You  explain  the  fact  that  the  Pennsylvania  isupreme  Court 
decisions  hold  that  you  may  subdivide  manufacturing  companies  and  tax  one  at  a  dif- 
ferent rate  from  another?  And  you  explain  that  upon  the  ground  that  it  is  a  taxable 
franchise?  Is  it  not  a  fact  that  in  the  Pennsylvania  case  to  which  I  referred  the  tax 
was  upon  the  property? 

Mr.  Meredith.    No,  sir;  not  according  to  my  recollection. 

Mr.  Hamilton:    It  was  not  a  franchise  tax.    It  was  a  property  tax. 

Mr.  Meredith:  My  recollection  is  to  the  contrary.  If  it  was,  it  was  simply  because 
Pennsylvania  has  a  system  of  recognizing  manufacturing  as  a  special  thing,  which  they 
prefer  to  tax  as  little  as  possible  in  order  to  encourage  them  to  come  there.  Tiiey 
prefer  to  put  the  lowest  rate  of  taxation  upon  them  in  order  to  encourage  them  to  come, 
because  they  can  go  elsewhere.  But  Vv^here  can  a  gas  company  go?  It  can  only  pursue 
its  business  by  being  in  the  community.  It  may  have  another  gas  company  some- 
where else;  but  it  cannot  pack  up  its  goods,  like  a  manufacturer  and  go  to  some  other 
place.    Therefore  it  is  recognized  as  a  different  class. 

Mr.  Robertson:    Would  it  not  be  a  license  tax,  where  you  cannot  get  at  the  value? 

Mr.  Meredith:    You  might  call  it  a  license,  or  an  excise  or  franchise  tax. 

Mr.  Robertson:  What  I  want  to  undestand  is  this:  Whether,  if  you  take  the 
amendment  of  the  gentleman  from  Petersburg,  you  do  not  allow  for  the  case  where  you 
cannot  get  at  the  value  of  the  property,  under  the  third  section. 

Mr.  Meredith:    No,  sir. 

Mr.  Robertson:  It  says  "All  property,  except  as  hereinafter  provided."  In  the 
third  section  you  provide  for  a  license  tax  and  a  franchise  tax,  and  a  license  tax  may  be 
levied  upon  any  business  which  cannot  be  reached  by  the  ad  valorem  system.  As  I 
understand  these  gentlemen,  their  objection  is  to  making  a  discrimination  where  the 
ad  valorem  system  will  apply;  in  other  words,  where  you  can  get  at  the  value,  and  value 
ought  to  be  the  basis,  regardless  of  the  character  of  the  property. 

Mr.  Meredith:    If  you  will  read  the  third  section  you  will  find  that  in  imposing  a 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIRGIXIA. 


2639 


f^^anehise  tax  they  may  take  the  franchise  tax  in  lieu  of  taxes  on  other  property,  in 
vhole  or  in  part;  that  is  to  say,  the  thing  upon  which  it  lays  the  tax  may  be  real  estate 
or  may  be  simph*  bonds  or  stock  bonds.  But,  by  the  provision  offered  by  the  gentle- 
man from  Petersburg,  you  are  required  to  have  the  same  rate  of  taxation  upon  an  ordi- 
nary mercantile  business  corporation  that  you  have  upon  a  railroad.  I  say  that  there 
is  no  method  by  which  you  can  absolutely  determine  the  actual  market  value  of  a  fran- 
chise. It  is  purely  a  question  of  method,  according  to  legal  requirements.  We  respect- 
fully submit  that  it  is  necessary  to  have  the  right  to  fix  the  value  by  the  gross  earnings, 
at  a  certain  rate  of  tax,  or  to  fix  it  upon  bonds  and  stock  at  another  rate  of  taxation,  or 
to  have  it  simply  upon  the  real  estate  at  another  rate  of  taxation. 

IMr.  Cameron:  I  may  have  been  so  unfortunate  as  not  to  make  myself  clear  to  the 
gentleman.  My  idea  was,  however,  that  your  license  tax  system  and  your  franchise 
system  were  provided  for.  I  undoubtedly  recognize  the  fact,  and  have  no  objection  to 
the  application  of  the  theory  that  the  license  system  was  inaugurated  and  is  main- 
tained to  cover  cases  where  the  value  of  property  cannot  be  arriA'ed  at,  so  as  to  produce 
equality  of  taxation.  But  when  you  have  your  license  system,  and  can  apply  it  as  you 
do  now,  to  conditions  existing  in  a  particular  business,  and  when  you  have  provided  for 
a  separate  system  or  method  of  arriving  at  a  proper  tax  on  franchises,  and  given  the 
General  Assembly  hereafter  the  right  to  deal  with  the  subject,  it  seems  to  me  that  your 
provision  here  applies  altogether  to  property,  real  and  personal,  the  value  of  which  can 
be  arrived  at.  And  if  yoti  can  arrive  at  the  value  of  property  and  have  arrived  at  the 
value  of  that  property,  there  is  no  reason  why  the  rate  of  taxation  upon  it  should  not  be 
the  same. 

Mr.  Meredith:  I  did  not  understand  the  question.  What  I  am  claiming  is  that  the 
gentleman  does  not  understand  what  is  meant  by  the  third  section.  It  does  not  say 
anything  about  the  rate  of  taxation.  It  only  says  how  you  propose  to  get  at  the  value 
of  a  franchise.  I  submit  that  if  he  will  read  the  third  section  he  will  find  that  it  only 
provides  for  the  laying  of  a  franchise  tax  which  may  be  in  lieu  of  taxes  upon  other 
property,    i^'ou  cannot  lay  it  upon  the  whole  of  a  visible  property  or  any  part  of  it. 

Suppose  you  take  the  Michigan  or  Wisconsin  system  of  taxation  upon  gross  earn- 
ings. We  have  in  this  report  laid  down  and  followed  the  rtile  of  a  tax  of  one  per  cent, 
upon  gross  earnings  as  a  franchise  tax  upon  railroads;  and  yet  I  doubt  very  much  as  to 
whether  that  is  a  fair  rule  as  to  some  roads.  After  having  had  thorough 
opportunity  to  consider  this  matter  in  Wisconsin  and  Michigan,  they  have  said  that 
where  the  gross  earnings  of  the  road  amount  to  so  much  per  mile  the  tax 
shall  be  so  much:  and  where  it  amounts  to  so  much  less,  the  tax  shall  be  less.  How 
could  you  do  that  if  you  had  one  rate  of  taxation  as  would  be  required  under  the 
amendment  just  offered.  Do  you  not  see  that  you  would  be  tying  the  hands  of  the 
Legislature  in  regard  to  this  matter,  which  you  have  never  been  able  to  reach  hereto- 
fore in  a  proper  manner.  All  I  am  asking  for  is  that  the  State  shall  have  a  fair  chance 
to  do  itistice  to  all  her  citizens. 

That  is  the  reason  I  am  standing  here  asking  for  this  change  in  the  law.  I  am 
not  asking  it  in  the  interest  of  anybody,  but  only  in  order  that  the  State  shall  have  a 
chance  to  make  its  system  of  taxation  fair  and  equal  and  that  she  shall  have  an  oppor- 
tunity of  laj'ing  taxes  according  to  the  productivity  of  the  property,  and  not  upon  the 
old  worn  out  idea  of  the  mere  existence  of  it. 

I  shall  not  go  into  a  discussion  of  the  absurdity  of  our  present  system  of  taxation 
on  personal  property.  The  system  is  ridiculed  by  everyone  who  writes  upon  the  subject. 
I  want  to  call  your  attention  to  the  fact  that  there  is  no  injustice  done  here.  This 
principle  has  existed  under  the  Constitutions  of  the  different  States,  and  under  the 
systems  of  taxation  in  European  countries.  In  some  of  the  European  countries  the  old 
general  property  tax  is  absoltitely  ignored,  and  in  others  it  exists  simply  as  a  subordi- 
nate attachment  to  the  general  system  of  taxation.  The  proposition  here  is,  that  where 
the  Legislature  thinks  a  certain  class  of  property  should  be  taxed  in  a  certain  way  the 


2640  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Legislature  may  do  it  and  if  there  is  a  different  class  of  property  which  the  Legisla- 
ture thinks  should  be  taxed  in  a  different  way  there  may  be  put  such  rate  of  taxation 
upon  it  as,  according  to  their  idea,  is  fair.  Now,  if  it  should  turn  out  that  the  classifi- 
cation is  just,  tell  me  if  it  is  not  a  fair  principle.  Suppose  I  can  separate  on  this  floor 
a  pile  of  property  that  ought  ^o  bear  one  rate  of  taxation  and  a  pile  that  ought  to  bear 
another  rate.    Will  the  gentleman  contend  for  the  same  rate  of  taxation? 

Mr.  Cameron:  I  will  not;  but  I  will  contend  for  a  different  system  of  arriving  at 
the  value  and  then  fix  the  rate  of  taxation  according  to  the  value. 

Mr.  Meredith:  The  gentleman  will  still  continue  to  ignore  the  fact  that  it  is  abso- 
lutely impossible  to  determine  the  actual  market  values;  that  you  cannot  get  at  the 
value  of  a  franchise  as  you  do  at  the  value  of  a  horse. 

Mr.  R.  Walton  Moore:  That  fact  was  practically  and  substantially  admitted  by  the 
representatives  of  the  railroads  when  they  appeared  before  the  commJttee. 

Mr.  Cameron:  I  have  admitted  that  as  to  a  license  tax  on  franchises,  if  some  other 
mode  of  taxation  is  provided  for  than  applies  to  real  and  personal  property  I  would 
support  it. 

Mr.  Meredith:  The  gentleman,  I  submit,  is  groping  in  the  dark.  This  committee 
has  considered  this  matter  with  very  grave  earnestness.  Here  you  have  a  manufactur- 
ing company  and  you  propose  to  put  upon  it  a  system  of  taxation.  You  have  an  indi- 
vidual Avho  is  doing  the  same  thing.  Under  your  idea  of  equal  taxation  you  would  put 
the  same  rate  of  tax  upon  the  man  who  is  carrying  on  the  business  individually  as  you 
would  put  upon  my  property.  But  when  you  come  to  the  manufacturing  company  that 
is  carried  on  by  a  corporation,  in  order  to  encourage  them  you  can  put  a  tax  on  their 
franchise  which  might  not  be  the  same.  You  must  leave  it  to  the  Legislature  to  deal 
with  classes.  You  cannot  have  a  hard  and  fast  rule  by  saying  that  taxation  shall  be 
equal  on  all  persons.  All  we  are  asking  for  is  that  the  Legislature  may  have  a  chance 
to  separate  these  classes  and  do  what  is  wise,  fair  and  just,  not  with  the  idea  of  separat- 
ing them  unfairly.  There  is  no  gentleman  who  has  the  right  to  consider  that  we  are 
desirous  of  doing  anything  of  the  kind.  We  are  only  saying  what  has  been  said  by 
other  persons  in  other  States  that  the  present  system  of  taxation  in  Virginia  is  grossly 
imequal,  and  that  it  comes  from  the  fact  that  you  undertake  to  lay  upon  all  classes  of 
property  and  persons  the  same  rate  of  taxation.  You  can  only  get  equality  of  taxation 
when  you  lay  it  upon  those  subjects  that  come  into  immediate  competition. 

These  gentlemen  say  that  this  provision  is  grossly  unjust.  Let  us  see.  In  the  first 
place  the  Legislature  must  do  the  classifying.  I  do  not  mean  to  say  they  will  not  do 
v/rong.  I  presume  they  may  do  wrong.  They  are  men  and  they  are  apt  to  do  wrong, 
Li  the  haste  with  which  they  consider  their  measures  it  is  more  than  probable  they  will 
do  wrong.  But  when  it  comes  to  the  question  of  classification  you  have  got  the 
Supreme  Court  of  the  State  to  protect  you.  If  you  fail  there  you  have  got  the  Supreme 
Court  of  the  United  States  to  protect  you  under  the  Constitutional  amendments  as  to 
the  equal  protection  of  the  law.  They  have  laid  down  a  rule  as  to  classification  which, 
I  respectfully  submit,  should  protect  everybody.  They  lay  down  the  rule  in  165th 
United  States  in  the  case  of  the  Colorado  Railroad  Company  against  Ellis  that  "  classi- 
fication must  always  rest  upon  some  difference  which  bears  a  reasonable  and  just 
relation  to  the  act  in  respect  to  which  the  classification  is  proposed,  and  can  never  be 
made  arbitrarily  and  without  any  such  basis." 

With  such  protections,  we  have  a  right  to  ask  for  a  change  from  a  rule  which  is 
recognized  to  work  great  injustice,  the  so-called  rule  of  an  equal  rate  of  taxation. 

I  respectfully  submit  that  when  you  see  we  are  working  along  lines  that  have  been 
adopted  by  the  most  thriving  States  of  the  Union,  along  lines  that  seem  to  be  necessary 
in  order  that  we  shall  have  a  fair  system  of  taxation  that  we  are  proposing  a  system 
by  which  the  Legislature  can  classify  these  subjects  which  ought  to  be  classified  so 
that  everybody  in  that  class  shall  be  protected.  When  we  are  working  along  lines  under 
which  you  have  the  protection  of  the  Supreme  Court  of  this  State  and  the  protection  of 


DEBATES  OF  THE  CONSTITUTIOI^AL  CONVEXTIOX  OF  VIRGINIA. 


2641 


the  Supreme  Court  of  the  United  States,  I  ask  if  we  do  not  give  as  fair  protection  as 
can  possiK^iy  be  given.  We  are  not  dreamers.  We  do  not  expect  any  absolute 
equality  of  taxation.  It  never  existed  and  never  will  exist.  We  are  trying,  however,  to 
get  a  system  of  taxation  that  v.iil  be  fair,  by  which  classes  of  subjects  may  be  taxed 
equally,  and  under  which,  possibly,  some  classes  may  bear  their  fair  share  of  the  bur- 
dens of  the  government. 

Mr.  Hamilton:  I  hope  that  it  will  be  agreeable  to  the  committee  that  we  pass  this 
section  until  Monday  so  as  to  allow  the  amendment  to  be  printed  and  give  the  gentle- 
men a  little  more  time  to  consider  the  matter.  I  have  no  object  in  that  except  to  give 
an  opportunity  for  fair  discussion  and  hearing.  I  do  not  think  there  will  be  much 
controversy  about  this  report  except  over  this  general  principle.  I  think  we  can  pro- 
ceed with  the  other  sections  without  much  delay  and  without  much,  if  any,  discussion. 
I  hope  the  first  section  will  be  passed  by  until  Monday  and  we  can  go  on  and  take  up 
the  other  sections  now.  We  will  lose  no  time  by  that  method.  I  presume  we  will  not 
sit  here  on  Saturday  afternoon,  at  any  rate.    I  make  that  motion. 

The  Chairman:  The  question  is  upon  the  motion  of  the  gentleman  from  Peters- 
burg to  pass  by  Section  1. 

The  motion  was  agreed  to;  there  being,  on  a  division,  ayes  28,  noes  27. 

The  Chairman:    The  Secretary  will  read  Section  2. 

Mr.  R.  Walton  Moore:  I  am  authorized  by  the  chairman  of  the  committee  to  say 
that  he  has  no  objection  to  that  section  being  passed  by.  It  is  better  to  pass  the  entire 
section  by  than  a  portion  of  it. 

The  Chairman:  Unless  there  is  objection,  that  will  be  taken  as  the  sense  of  the 
committee.    The  Secretary  will  read  Section  3. 

Sec.  3.  The  General  Assembly  may  levy  a  tax  on  incomes  in  excess  of  six  hundred 
dollars  per  annum;  and  may  levy  a  license  tax  upon  any  business  which  cnnnot  be 
reached  by  the  ad  valorem  system;  and  may  impose  franchise  taxes,  and  in  imposing 
a  franchise  tax  may  make  the  same  in  lieu  of  taxes  upon  other  property,  in  v/hole  or  in 
part,  of  a  transportation,  industrial  or  commercial  corporation.  And,  whenever  a 
franchise  tax  shall  be  imposed  upon  a  corporation  doing  business  in  this  State,  or 
whenever  the  capital,  however  invested,  of  a  corporation  chartered  under  the  laws  of 
this  State,  shall  be  taxed,  the  shares  of  stock  in  any  such  corporation,  the  same  repre- 
senting the  business  or  capital  so  taxed,  shall  not  be  further  taxed.  No  city  or  town 
shall  impose  any  tax  or  assessment  upon  abutting  land  owners  for  street  or  other  public 
local  improvements,  except  for  making  and  improving  the  walkways  upon  then  existing 
streets,  and  for  construction  of  sewers;  and  the  same  when  imposed,  shall  not  be  in 
excess  of  the  peculiar  benefits  resulting  therefrom  to  such  abutting  land  owners. 
Except  in  cities  and  towns  no  such  taxes  or  assessments  for  local  public  improvements 
shall  be  imposed. 

Mr.  Barbour:  Mr.  Chairman,  I  move  to  strike  out,  in  lines  20  and  21.  the  words 
"  except  in  cities  and  towns,  no  such  taxes  or  assessments  for  local  improvements  shall 
be  imposed." 

The  effect  of  that  amendment  will  be  to  tie  the  hands  of  the  Legislature  unneces- 
sarily, it  seems  to  me.  Especially  will  it  tie  their  hands  with  reference  to  road  improve- 
ments which,  just  at  this  time,  is  attracting  very  general  public  attention  in  a  number 
of  the  most  progressive  States.  It  is  by  this  system_  of  local  assessments,  in  proportion 
to  benefits  received,  that  the  roads  are  improved.  Such  a  system  is  now  in  operation  in 
the  State  of  New  Jersey. 

Mr.  Hamilton:  I  will  say  that  was  put  in  for  the  protection  of  the  counties.  It 
has  not  been  understood  that  there  had  ever  been  any  local  assessment  or  any  assess- 
ment upon  abutting  landholders  for  improvements,  and  we  thought  it  proper  to  go  into 
the  Constitution  that  there  should  never  be.  We  thought  that  was  to  protect  the  coun- 
ties.   We  do  not  understand  it  prevents  the  counties  from  improving  county  roads. 

Mr.  Barbour.  No,  sir;  it  does  not;  but  it  will  prevent  those  assessments  for  im- 
pi'ovements  on  abutting  land-owners,  or  land-owners  within  a  given  radius  of  those 


2642 


DEBATES  OF  THE  COXSTITUTIONAL  C02s^YENTI0N  OE  VIRGINIA. 


improvements,  in  proDortion  to  the  benefits  received.  As  the  gentleman  from  Peters- 
burg states,  it  is  certainly  a  right  which  the  Legislature  has  always  had,  and  it  is  cer- 
tainly one  which  never  has  been  used,  and  therefore  there  is  no  danger  of  any  abuse  of 
it.  I  do  not  see  the  necessity  of  putting  these  limitations  upon  the  powers  of  the  Legis- 
lature unnecessarily.  This  may  be  the  secret  we  are  looking  for  to  enable  us  to  get 
improvement  to  our  roads.  It  can  certainly  do  no  harm  to  strike  it  out,  and  I  can  see 
no  good  that  results  from  having  it  there.  Especially  do  I  think  there  should  be  no 
limitation  upon  the  taxing  power  unless  there  is  some  benefit  to  be  derived  from  Jt. 

Mr.  Fairfax:  I  do  not  see  that  anything  here  would  prevent  the  county  taking  a 
vote  to  issue  bonds  to  complete  roads,  or  anything  of  that  sort.  It  simply  says  that  no 
such  taxes  or  assessments  for  local  public  improvements  shall  be  imposed. 

Mr.  Wysor:  Mr.  Chairman,  I  move  to  amend  the  proposition  of  the  gentleman  from 
Culpeper  oy  inserting  after  the  word  "assessment,"  in  line  20,  the  words  "upon  abutting 
land-owners,"  so  that  it  will  read,  "except  in  cities  and  towns,  no  such  taxes  or  assess- 
ments for  local  public  improvements  shall  be  imposed." 

Mr.  Barbour:  Mr.  Chairman,  the  object  of  the  gentleman's  amendment  is  just  the 
opposite  of  mine.  I  want  the  hands  of  the  Legislature  left  free  to  deal  with  this  matter. 
It  is  a  very  important  matter  to  the  people  of  the  counties,  and  it  seems  to  me  the 
Legislature  should  be  left  free  to  deal  with  it. 

Mr.  Wysor:  You  do  not  want  the  Legislature  to  have  the  power  to  say  that  the 
man  who  abuts  on  a  public  road  shall  keep  that  road  up? 

Mr.  Barbour:  I  think  the  Legislature  should  have  the  same  power  that  the 
councils  or  cities  and  towns  now  have,  to  require  the  people  within  a  certain  radius  of 
an  improved  road  to  pay  for  a  certain  portion  of  it,  if  they  see  proper  to  do  so.  There 
is  a  special  law  in  operation  in  my  county  permitting  that  sort  of  thing  to  be  done. 
The  people  have  done  it  voluntarily. 

Mr.  Hatton:  I  will  call  the  attention  of  the  gentleman  from  Culpeper  to  this  fact, 
that  the  councils  in  cities  and  towns,  will,  under  this  provision,  have  limited  powers. 
They  will  not  have  the  power  to  impose  local  asessments  for  anything  but  improve- 
ments of  walkways  upon  the  streets,  and  only  upon  certain  kinds  of  streets — namely, 
existing  streets.  They  will  not  have  power  to  levy  a  local  assessment  upon  a  street  that 
is  to  be,  or  for  property  to  open  a  new  street,  but  only  to  improve  the  walkways,  and 
that  only  on  an  existing  street— and  for  the  construction  of  sewers.  I  take  it  that,  from 
the  nature  of  the  case,  the  counties  would  not  want  that  privilege.  No  county  would 
want  to  lay  sewers  and  no  county  would  want  to  simply  improve  the  walkways  on  its 
public  roads.  Therefore,  when  you  apply  this  language  to  the  actually  existing  con- 
ditions in  the  State,  the  counties  really  stand,  in  the  same  position  that  the  cities  do. 

Mr.  Barbour:  As  I  understand  it  the  roadways  in  the  counties  serve  very  much 
the  same  purpose  that  walkways  do  in  the  city.  It  is  the  only  means  the  people  have 
to  get  about  and  see  each  other.  It  is  much  more  important,  that  they  should  have  the 
right  to  improve  their  walkways. 

Mr.  Wysor:  I  want  to  say  that  my  object  in  offering  that  amendment  is  to  make 
the  meaning  of  the  last  sentence  of  the  section  clear  and  unmistakable.  The  provision 
says:  "No  such  taxes."  The  section  previously  refers  to  other  taxes,  such  as  fran- 
chise taxes.  I  suppose  the  word  "  such  "  there  means  taxes  upon  abutting  land-owners, 
at  the  end  of  the  line  20,  after  the  word  "assessments."  I  cannot  at  all  agree  with  the 
gentleman  from  Culpeper  that  the  Legislature  ought  to  have  the  power  to  make  a  man 
whose  lands  abut  on  the  public  roads  pay  a  tax  to  keep  that  road  up. 

My  land  may  not  abut  on  the  road,  and  the  land  of  the  gentleman  from  Culpeper 
may  abut  on  it,  and  I  may  get  as  much  good  as  he  would  out  of  it;  yet  he  would  have 
to  pay  a  tax  that  I  did  not  pay.    It  would  be  very  unjust. 

Mr.  R.  Walton  Moore:  Mr.  Chairman,  the  committee  thinks  that  this  language  is 
unnecessary  to  make  clear  the  meaning  of  the  provision.  I  will  call  the  attention  of 
my  friend  from  Pulaski  (Mr.  Wysor)  to  the  fact  that  in  this  sentence  a  limitation  is 


DEBATES  OE  TEIE  COXSIITUIIOXAL  COXYEXIIOX  OE  YIEGIXIA. 


imposed  by  the  use  of  the  word.  "  such."  It  is  quite  evident,  taking  the  whole  of  the 
section  and  applying  the  language  of  it,  that  the  reference  in  this  last  sentence  is  dis- 
tinctly to  the  imposition  of  taxes  or  assessments  upon  abutting  land-owners  for  local 
public  improvements.  I  would  suggest  that  the  meaning  is  very  clear,  when  the  matter 
is  considered  in  that  way. 

The  committee,  hovs-ever,  waives  any  objection  to  the  amendment. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Pulaski  (Mr.  Wysor). 

The  amendment  was  agreed  to. 

The  Chairman:    Are  there  any  other  amendments  to  be  offered  to  the  section? 
If  not  the  Secretary  will  read  Section  4. 

Sec.  4.  The  General  Assembly  shall  provide  for  a  reassessment  of  real  estate  in 
the  year  19n5,  and  every  fifth  year  thereafter;  and  such  real  estate  shall  be  assessed 
at  its  fair  market  value. 

:\Ir.  Fairfax:  ISlv.  Chairman,  the  committee  offers  the  following  amendment  to  that 
section. 

In  line  2,  Section  4,  after  the  words  "  real  estate,''  insert  the  words  "  except  that  of 
railway  and  canal  corporations." 
The  amendment  was  agreed  to. 

I\Ir.  Fairfax:  3.1r.  Chairman,  the  committee  offers  as  a  further  amendment,  to  strike 
out  the  language  of  the  section  after  the  word  hereafter,"  in  line  3.  The  words  to  be 
stricken  out  are  "  and  such  real  estate  shall  be  assessed  at  its  fair  market  value." 
The  reason  for  striking  this  out,  I  will  say  to  the  committee,  is  that  in  article  2  you 
find  that  wording  exactly,  and  it  is  simply  to  avoid  a  repetition  of  the  sentence  that  we 
propose  to  strike  it  out. 

Mr.  Parks:  IVIr.  Chairman.  I  wish  to  call  the  attention  of  the  gentleman  to  the 
fact  that  the  language  of  Section  2  applies  to  personal  property  as  well  as  to  real  estate, 
and  the  commissioner  of  the  revenue  would  assess  the  personal  property  each  year. 
This  is  for  the  reassessment  of  the  land  every  fifth  year. 

Mr.  R.  Walton  Moore:  I  will  sa3^  to  the  gentleman  from  Page  (Mr.  Parks)  that  the 
purpose  of  striking  out  this  language  in  Section  4  is  simplj^  to  avoid  unnecessa^rj-  repeti- 
tion. Section  2  says  that  the  real  estate  when  it  is  assessed  shall  be  assessed  at  its 
fair  market  value.  It  is  unnecessary  to  repeat  that  in  Section  4.  for  the  reason  that 
Section  2  contains  a  provision  that  all  assessments  of  the  value  of  real  estate  and  tangi- 
ble personal  property  shall  be  at  their  fair  market  value.  Xo  question  is  raised  as  to 
who  shall  make  the  assessment  or  as  to  what  real  estate  shall  be  assessed,  and  there  is 
a  general  direction  that  whenever  any  real  estate  is  assessed,  it  shall  be  assessed  at 
its  fair  market  value.  The  committee  therefore  thought  it  was  tmnecessary  to  repeat 
that  direction  in  Section  4. 

^Iv.  Parks:  Mr.  Chairman,  I  appreciate  the  reason  why  the  chairman  asks  that  this 
be  stricken  out.  in  order  that  they  may  not  have  a  provision  or  a  statement  in  this  sec- 
tion that  has  already  been  made;  but  I  desire  to  offer  an  amendment,  to  come  in  at  the 
end  of  the  section,  as  follows: 

That  such  real  estate  shall  be  assessed  at  a  fair  market  value,  and  the  price  at 
which  lands  have  been  sold  in  the  community  shall  be  one  of  the  means  to  be  con- 
sidered in  ascertaining  such  market  value. 

One  of  the  evils  of  our  system  of  taxation  which  prevails  to-day  and  which  gives 
rise  to  a  great  deal  of  dissatisfaction  is  the  fact  that  neither  land  nor  tangible  personal 
property  are  assessed  at  their  fair  market  value;  and  dissatisfaction  arises  on  the  part 
of  persons  who  are  assessed  with  invisible  personal  property.  You  go  to  a  man  who 
has  a  bond  of  one  hundred  dollars. 

The  law  says  that  if  that  is  a  good  bond,  if  it  can  be  collected,  if  it  is  solvent,  you 


264:4:  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

shall  assess  it  at  its  value  and  add  in  the  interest.  You  go  to  another  man  who  has 
just  purchased  a  horse  at  a  hundred  dollars,  that  he  can  sell  for  a  hundred  dollars  at 
any  time,  and  the  commissioner  of  the  revenue  assesses  that  horse  at  $40  or  $50  or  $60. 
I  have  heard  complaints  made  about  it  over  and  over  again.  These  men  v/ho  make  the 
complaints  with  reference  to  the  taxation  of  invisible  property  have  said  to  me  time  and 
time  again:  If  you  will  apply  the  same  rule  to  the  assessment  of  visible  personal 
property,  it  will  be  fair;  but  v/hen  you  assess  at  a  hundred  dollars  that  man's  horse  for 
which  he  paid  a  hundred  dollars  and  for  which  he  can  get  a  hundred  dollars,  at  $40,  or 
$50,  or  $60,  and  assess  my  bond  at  a  hundred  dollars  when  I  cannot  get  more  than  a 
hundred  dollars  for  it,  it  is  unfair  and  unjust;  it  is  a  discrimination  against  me,  and 
hence  all  the  dissatisfaction  arises  in  reference  to  the  assessment  of  taxation  of  invisi- 
ble personal  property,  and  those  owning  that  class  of  property  are  thereby  induced  to 
refuse  to  give  in  some  of  the  invisible  property,  in  order  to  equalize  what  is  otherwise 
an  unequal  assessment  of  property  and  a  discrimination  against  them. 

"What  I  want  to  get  at,  and  what  it  seems  to  me  this  Convention  ought  to  desire  to 
get  at,  is  that  every  class  of  property  shall  be  assessed  at  its  fair  market  value — what 
it  will  bring  upon  the  market.  It  does  not  increase  any  man's  taxation.  If  property  is 
assessed  at  its  fair  market  value,  we  can  reduce  the  rate  of  taxation,  because  there  will 
be  no  necessity  for  having  the  present  rate  of  taxation,  and  we  owe  it  to  the  State  that 
we  should  do  it.  When  men  desire  to  come  to  Virginia  and  invest  their  capital,  they 
do  not  ask  how  your  property  is  assessed,  but  what  is  your  rate  of  taxation?  By  assess- 
ing every  class  of  property  at  its  fair  market  value,  you  can  reduce  the  rate  of  taxation, 
not  increasing  the  taxes  of  any  man,  and  yet  secure  equality  and  do  away  with  dis- 
satisfaction that  is  urged  upon  the  part  of  those  whose  invisible  property  is  taxed,  as 
they  say,  in  a  manner  in  which  visible  property  is  not  taxed. 

It  seems  to  me  the  Convention  ought  to  desire  to  settle  that  thing,  and  it  can  be 
settled  by  having  property  assessed  at  a  fair  market  value. 

Mr.  Stuart:  Mr.  Chairman,  as  a  member  of  this  committee,  I  desire  to  make  a 
statement  on  that  particular  point.  The  old  Constitution  provided  that  property  should 
not  DC  assessed  either  above  or  below  its  value.  The  general  construction  of  that  term 
heretofore  has  been  "  cash  value."  In  the  minds  of  the  committee,  it  was  thought 
important  that  the  word  "market"  should  be  used  there  as  a  guide  to  the  assessor  in 
determining  values. 

Under  the  language  as  employed,  it  is  presumable  that  the  assessor  will  avail  him- 
self of  all  sources  of  information  in  determining  the  question  of  market  value.  The 
question  as  to  what  market  value  is,  is  not  to  be  determined  from  any  one  source  of 
information  or  from  any  one  standard,  and  least  of  all  could  it  be  determined  by  the 
very  uncertain  and  shifting  standard  proposed  by  the  gentleman  from  Page  (Mr. 
Parks) — shifting  because  uncertain.  The  sales  of  property  in  communities  are  never 
a  reliable  test  of  values  taken  in  themselves,  and  never  can  be.  One  piece  of  property 
may  be  sold  with  reference  to  its  situation,  its  peculiar  advantages,  or  for  values 
absolutely  unknown  to  anyone  but  the  purchaser  himself. 

For  this  reason,  it  seems  to  me,  if  not  simply  tautology,  it  would  be  injurious  to 
prescribe  a  hard  and  fast  rule  for  the  government  of  an  assessor  in  determining 
what  is  laid  down  here  in  most  unmistakable  terms  already.  I  therefore  object  to  the 
amendment  and  I  think  I  have  given  ample  reason  why  it  should  be  rejected. 

The  question  of  what  is  a  community,  is  an  important  one.  I  know  of  communi- 
ties in  which  values  of  land  may  be  found  to  vary  from  $1  to  $2  per  acre.  I  know  of 
adjoining  farms,  one  of  which  is  worth  $10,  $15,  or  $20  an  acre  more  than  the  other,  so 
that  when  you  introduce  the  question  of  community,  the  question  arises  as  to  what  is 
that  community,  and  to  what  extent  shall  the  territory  be  considered  in  establishing  a 
community  for  the  consideration  of  the  assessor? 

Mr.  Parks:  Mr.  Chairman,  I  simply  wish  to  call  attention  to  the  fact  that  I  am 
endeavoring  to  establish  no  hard  and  fast  rule  by  this  amendment.    I  simply  say  that 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


26^5 


the  price  at  which  land  in  the  community  shall  be  sold  shall  be  one  of  the  sources  of 
information.    The  assessor  can  take  into  consideration  that  source  and  get  information 
from  all  other  sources  and  all  the  circumstances  surrounding  them. 
The  amendment  was  rejected. 

The  Chairman:  The  question  now  is  upon  agreeing  to  the  amendment  offered  by 
the  gentleman  from  Loudoun  (Mr.  Fairfax)  to  strike  out  the  language  read  by  the 
Secretary. 

Mr.  Bouldin:  Mr.  Chairman,  may  I  inquire  of  the  gentleman  from  Loudoun  (Mr, 
Fairfax)  what  is  the  object  of  striking  out  that  language,  and  whether  there  is  any 
ether  reason  than  the  appearance  of  similar  language  in  the  second  section? 

Mr.  Fairfax:  That  is  all,  sir.  We  did  not  want  to  repeat  the  same  section  two  or 
three  times. 

Mr.  Bouldin.  It  strikes  me  it  had  better  be  left  there  for  this  reason:  It  is  an 
admitted  fact  that  the  lands  in  different  portions  of  the  State  have  been  assessed  at 
different  standards  of  value.  In  some  portions  of  the  State  they  have  been  assessed  at 
their  full  market  value;  in  others,  at  not  over  two-thirds  of  their  market  value;  and  in 
order  to  place  that  question  beyond  any  doubt — to  leave  nothing  open  for  construction — 
I  think  the  language  of  the  fourth  section  as  reported  by  the  committee  ought  to  re- 
main unchanged.  The  very  fact  that  it  was  reported  by  the  committee  and  after- 
wards stricken  out  might  be  appealed  to  to  show  that  there  is  some  objection  to  its  re- 
maining in  the  Constitution  other  than  a  mere  correction  of  phraseology.  If  the  lan- 
guage as  reported  by  the  committee  remains,  no  harm  whatever  can  result  from  it,  and 
it  would  place  the  intention  of  the  Constitution  on  this  important  subject  beyond  doubt 
or  question. 

Mr.  R.  Walton  Moore:  Mr.  Chairman,  it  seems  to  me  this  language  in  Section  2 
will  meet  the  view  presented  by  the  gentleman  from  Halifax  (Mr.  Bouldin)  :  "  Except 
as  hereinafter  provided,  all  assessments  of  the  value  of  real  estate  and  tangible  personal 
property  shall  be  at  their  fair  market  value,  to  be  ascertained  as  prescribed  by  law.'' 
I  will  ask  the  gentleman  whether  there  can  be  any  doubt  that  that  would  apply  to  the 
assessment  contemplated  by  Section  4?- 

Mr.  Bouldin:  I  think  it  would,  sir;  but  I  also  think  that  this  provision  would  be 
emphasized  by  permitting  it  to  remain  as  reported,  and  that  this  emphasis  is  made 
necessary  by  the  mode  of  valuing  real  estate  for  taxation  under  the  existing  Constitu- 
tion. The  terms  of  that  instrument  imperatively  demand  that  real  estate  shall  be 
assessed  for  taxation  according  to  the  fair  market  value  thereof  throughout  the  State. 
Yet  it  cannot  be  controverted  that  this  standard  of  valuation  has  been  uniformly  ignored 
in  certain  sections  of  the  State,  to  the  injury  of  other  portions  in  which  real  estate  is 
assessed  according  to  its  fair  market  value.  If  the  language  I  desire  retained  appeared 
twice  in  the  short  section  under  consideration,  there  might  be  some  force  in  the  objec- 
tion of  tautology,  but  such  is  not  the  case.  The  language  of  the  second  section  merely 
declares  on  general  terms  the  rule  for  the  assessment  of  real  and  personal  property. 
Afterwards,  when  the  committee  addressed  itself  in  the  fourth  section  to  the  considera- 
tion of  the  assessment  of  real  estate  specially,  it  declared,  and,  I  think,  wisely,  the  rule 
for  ascertaining  the  value  of  the  real  estate.  I  am  unable  to  see  that  even  the 
diction  of  the  proposed  Constitution  is  at  all  impaired  by  retaining  the  languages  as 
the  committee  originally  reported  it.  In  view,  Mr.  Chairman,  of  the  varying  modes  of 
assessing  lands  for  taxation  under  the  present  Constitution,  it  is,  in  my  judgment,  the 
part  of  prudence,  when  providing  for  the  reassessment  of  real  estate,  to  declare  the 
mode  of  assessment  in  no  uncertain  terms. 

I  trust  the  body  will  retain  the  language  as  originally  reported  by  the  committee. 

Mr.  Meredith:  Mr.  Chairman,  it  is  simply  a  question  as  to  whether  we  can  do  any 
good  by  repeating  a  thing  twice.  We  state,  in  Section  2,  in  explicit  terms,  "except  as 
hereinafter  provided,  all  assessments  of  real  estate  and  tangible  personal  property  shall 
be  at  their  fair  market  value,  to  be  aseertaind  as  prescribed  by  law." 


2646  DEBATES  OF  THE  COXSTITUTIOXAL  CONYENTIOX  OF  VIEGimA. 

U 

That  language  is  as  broad  as  it  is  possible  to  make  it.  Here  is  a  requirement  as  ta 
the  fifth  year  assessment,  and,  instead  of  repeating  it,  we  leave  it  out,  as  already  de- 
clared, as  one  of  the  first  principles  we  announce  in  this  taxation  clause,  that  all  assess- 
ments shall  be  at  their  fair  market  value.  While  I  am  not  a  stickler  as  to  form  espe- 
cially, I  think  we  ought  not  to  uselessly  repeat  a  thing  in  the  Constitution.  We  cannot 
make  it  any  stronger  on  the  assessor  by  saying  it  two  or  three  times.  He  ought  to  be 
guided  just  as  well  if  it  is  said  once  as  if  it  is  said  more  than  once. 

Mr.  R.Walton  Moore:  That  language  has  been  stricken  out  in  other  subsequent 
sections,  and  if  we  decline  to  strike  ft  out  now,  we  will  have  a  repetition  of  this  lan- 
guage not  simply  once,  but  several  times,  and  it  strikes  me  it  will  mar  the  form  of  the 
Constitution  to  some  extent. 

Mr.  Keezell:  Mr.  Chairman,  if  the  retention  of  the  language  would  emphasize  the 
necessity  of  carrying  out  the  provisions  of  the  article,  I,  for  one,  would  be  opposed  to 
striking  it  out,  and  if  anybody  should  construe  it  to  mean  that  it  is  admitted  there  it 
would  relieve  the  necessity  of  having  the  fair  cash  value  or  market  value  put  upon  real 
estate,  I  think  the  mere  fact  that  we  are  repeating  it  would  be  a  matter  of  small  con- 
sequence, if  it  should  be  misunderstood  in  any  way,  shape  or  form  by  striking  it  out. 

Within  the  last  few  days  I  have  had  called  to  my  attention  this  state  of  affairs  exist- 
ing in  some  sections  of  the  Commonwealth  under  the  present  Constitution:  There 
came  before  the  committees  of  the  General  Assembly  of  Virginia  representatives  of 
seme  of  the  sections  of  the  State  asking  for  certain  legislation  before  that  body,  and  it 
v/as  admitted  before  those  committees  that  in  those  sections  of  the  State  land  that  sells 
at  $35  and  $40  an  acre  as  readily  as  property  could  change  hands  in  any  part  of  the 
Commonv/ealth  is  assessed  at  $4,  $5,  and  $6  an  acre. 

It  is  not  denied  at  all  that  that  state  of  affairs  exists,  and  it  was  also  admitted  there 
that,  so  far  as  tne  valuations  of  personal  property  are  concerned,  the  assessor  or  the 
commissioner,  having  ascertained  the  fair  market  value  of  horses,  cattle  or  what  not, 
divides  it  into  thirds,  and  returns  for  assessments  to  the  State  only  one-third  of  the  value, 
and,  so  far  as  the  bonds  held  by  the  citizens  of  those  communities  are  concerned,  they 
were  not  assessed  at  all. 

I  say  those  facts  are  not  denied,  because  they  are  unquestionably  true.  If  we  are 
to  in  any  way,  shape  or  form  countenance  and  continue  such  practices  as  that,  or  if,  by 
omitting  this  language  here,  we  are  relieving  them  of  the  necessity  of  having  this 
property  assessed  at  a  fair  cash  value,  I  think  we  had  better  leave  it  in. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Loudoun. 

The  amendment  was  agreed  to,  there  being,  on  a  division,  ayes  36,  noes  15. 

Section  5  was  adopted. 

Sec.  6.  The  General  Assembly  shall  levy  a  State  capitation  tax  of,  and  not  exceed- 
ing, one  dollar  and  fifty  cents  per  annum  on  every  male  resident  of  this  State  not  less 
than  tv/enty-one  years  of  age.  except  pensioners  of  this  State  for  military  services;  one 
dollar  of  which  shall  be  applied  exclusively  in  aid  of  the  public  free  schools  in  propor- 
tion to  the  school  population,  and  the  remaining  fifty  cents  of  which  shall  be  returned 
and  paid  by  the  State  into  the  treasury  of  the  county  or  city  in  which  it  was  collected, 
to  be  appropriated  by  the  proper  county  or  city  authorities  to  such  county  or  city  pur- 
poses as  they  shall  respectively  determine;  but  said  capitation  tax  shall  not  be  a  lien 
upon,  nor  collected  by  legal  process  from,  the  personal  property  which  may  be  exempt 
from  levy  or  distress  under  the  poor  debtor's  law. 

Mr.  Richmond:    I  offer  the  following  amendment: 

Add  at  the  end  of  the  section  the  following:  "  And  the  General  Assembly  may  pro- 
vide by  law  for  free  labor  on  the  public  roads  in  any  county  of  this  State." 

The  amendment  was  rejected,  there  being  on  a  division,  ayes  9,  noes  42. 

Mr.  Turnbull:    Mr.  Chairman,  I  desire  to  ask  the  chairman  of  the  committee  in 


DEBATES  OE  THE  COXSTITUTICXAL  COXVEXTIOX  OE  YIEGIXIA. 


reference  to  the  language  used  beginning  in  line  5  of  Section  6:  "SI  of  Trhich  shall  be 
applied  esclusiveh-  in  aid  of  tbe  public  free  schools  in  proportion  to  the  school  popula- 
t'.on.  and  the  remaining  50  cents  of  which  shall  be  returned  and  paid  by  the  State  into 
the  treasury  of  the  county  or  city  into  vrhich  it  "vras  collected,  to  be  appropriated,"  &c. 
The  old  Constitution  simply  provides  that  the  counties  shall  have  power  to  impose  a 
capitation  tax,  not  esceding  50  cents  per  annum  for  all  purposes.  I  should  like  to 
know  why  this  language  is  changed. 

Mr.  Hamilton;  3.1r.  Chairman,  I  was  responsible  for  that  provision.  The  idea  was 
that  there  should  be  a  poll-tax  prerequisite  to  voting,  amounting  to  SI. 50,  and  that  it 
should  be  collected  hy  the  State  so  as  to  make  tne  process  of  collection  easier, 
and  then  that  the  50  cents  the  counties  now  get,  be  at  once  paid  over  to  the  counties. 

I\Ir.  R.  "V^ralton  :Moore:  I  will  say  further,  that  under  the  present  Constitution,  the 
levy  of  a  poll-tax  or  capitation  tax  by  political  subdivisions,  is  permissible.  This  is 
designed  to  make  it  compulsory,  in  order  to  have  a  capitation  tax  throughout  the  State 
of  SI. 50. 

Mr.  Thornton:  Mr.  Chairman,  along  that  same  line  I  desire  to  offer  this  amend- 
KLent:  In  line  8,  page  5,  substitute  the  words  "retained  in"  instead  of  the  words  "re- 
turned and  paid  by  the  State  into."  My  reason  for  offering  that  amendment  is  exactly 
along  the  line  suggested  by  the  gentleman  from  Brunswick  (Mr.  Turnbull).  I  do  not 
think  the  explanation  made  by  the  gentleman  from  Petersburg  (Mr.  Hamilton)  is  sat- 
isfactory- It  ma3'  be  true,  so  far  as  permitting  the  county  to  levy  this  tax  or  not,  as 
they  may  think  proper:  but  I  see  no  reason  on  earth  for  paying  that  fifty  cents  into  the 
State  treasury  and  then  having  it  paid  back  to  the  counties  again.  Those  of  us  who 
have  examined  the  statement  sent  to  the  Convention  by  the  Auditor  have  been  absolutely 
astotmded  by  the  condition  of  affairs  in  this  State  in  reference  to  the  payment  of  the 
capitation  tax.  T^'e  find  that  otit  of  a  poll  of  IG.OOO  in  some  instances  15,000  have  been 
returned  delinquent,  vrhile  in  others  only  174  have  been  delinquent.  Yott  will  fimd  that 
running  throughout  this  State.  It  is  one  of  the  greatest  inequalities  connected  with  the 
payment  of  taxes  in  the  State. 

I  say  it  is  unjust  taxation  to  put  upon  the  people  who  pay  this  tax  to  require  them 
to  pay  it  and  let  it  go  into  a  general  fund  and  then  require  it  to  be  distributed. 

Mr.  Meredith:  The  gentleman  has  misconstrued  the  language.  It  is  not  to  be  paid 
into  a  general  fund.  It  reads  "and  the  remaining  fifty  cents  of  which  shall  be  returned 
and  paid  by  the  State  into  the  treasury  of  the  county  or  city  in  which  it  was  collected." 

Mr.  Thornton:  Why  not  let  it  remain  in  the  county  in  which  it  is  collected? 
Y\hx  have  it  paid  over  here  to  Richmond  and  then  sent  back? 

Mr.  Keezell:  I  have  no  doubt  that  the  practical  object  the  gentleman  seeks  to 
accomplish  by  his  amendment  would  be  accomplished  by  the  fact  that  the  treasurer  of 
the  cotmty  wotild  simply  keep  that  money  in  his  treasury  and  get  credit  for  it. 

:\Ir.  Thornton:  Then,  why  not  let  it  remain  in  the  county  in  vrhich  it  is  collected? 
Vrhy  not  let  the  dollar  go  to  the  State  treasury  and  let  the  fifty  cents  remain  in  the 
county  treasury?  Why  have  it  brought  to  Richmond  and  then  redistributed  if  you  pro- 
pose to  send  it  back  to  the  county  in  which  it  is  collected?  It  seems  to  me  to  be  a  use- 
loss  trouble. 

Mr.  Eggleston:  Does  not  the  gentleman  think  it  is  absolutely  necessary  to  provide 
that  this  capitation  tax  shall  be  paid  to  the  Auditor,  v\-hen  you  will  probably  make  that 
as  a  prerequisite  to  voting?  Yoti'  do  not  want  to  leave  it  in  the  hands  of  the  county 
treasurer  and  thereby  give  him  the  right  to  disfranchise  or  enfranchise  any  citizen, 
but  you  require  him  to  account  for  it  and  pay  it  into  the  treastiry  in  order  to  ascertain 
who  is  qualified  to  vote. 

Mr.  Thornton:  I  do  not  think  that  applies  at  all,  sir.  Yoti  can  provide  that  the 
treasurer  of  each  county  shall  report  exactly  who  has  been  delinquent  and  who  has  not; 
and  upon  that  rule  would  depend  the  right  of  a  man  to  vote. 

Mr.  Stuart:    I  wish  to  call  attention,  Mr.  Chairman,  to  the  fact  that  the  whole  dol- 


2648  DEBATES  OF  THE  COJs'STITUTIO^s^AL  CONVENTION  OF  VIRGINIA. 

la  r  and  a  half  is  a  State  capitation  tax.  The  language  of  the  section  begins  in  this 
way:  "  The  General  Assembly  shall  levy  a  State  capitation  tax  of,  and  not  exceeding, 
one  dollar  and  fifty  cents  per  annum."  This  being  a  State  capitation  tax,  levied  by  the 
State,  it  would  be  presumed  it  should  be  collected  by  the  State,  and  it  is  only  an  inci- 
dent that  fifty  cents  of  it  shall  be  returned  to  the  counties. 

While  on  this  subject-,  it  might  be  well  to  state  that  this  whole  section  is  liable  to 
undergo  some  changes  with  reference  to  the  action  of  the  Suffrage  Committee.  It  does 
seem  to  me,  however,  that  the  point  I  have  made  showing  that  it  is  a  State  capitation 
tax,  would  necessitate  practically  the  language  the  committee  has  employed. 

Mr.  Thornton:  So  far  as  the  first  suggestion  by  my  friend  from  Russell  (Mr. 
Scuart)  is  concerned,  I  do  not  agree  with  him.  I  do  not  think  because  it  is  a  State  tax 
that  is  any  reason  on  earth  why  it  should  be  paid  into  the  general  treasury.  It  may  be 
a  State  tax,  and  collected,  as  it  has  to  be,  by  the  same  official,  the  county  collector  or 
treasurer.  Let  him  turn  over  one  dollar  in  cash  to  the  State  treasurer,  and  retain  in  his 
county  the  other  fifty  cents,  and  report  to  the  State  treasurer  the  fact  that  it  has  been 
retained,  and  he  can  get  credit  for  it. 

As  to  the  second  suggestion,  I  agree  heartily  with  the  gentleman  from  Russell.  I 
believe  it  will  probably  be  changed,  and  for  that  reason  it  seems  to  me  it  would  be  better 
to  pass  this  entire  section  by  for  the  present. 

At  the  suggestion  of  a  member  of  the  committee,  I  withdraw  my  amendment,  with 
the  understanding  that  I  will  have  an  opportunity  of  offering  it  later. 

Mr.  Hamilton:  Mr.  Chairmian  I  desire  to  make  a  motion  that  the  committee  rise. 
It  is  very  necessary  that  we  shall  have  some  action  before  2  o'clock  upon  the  report  of 
the  committee  appointed  to  select  another  meeting  place  and  I  think  tlie  time  has  come 
for  that.  I  do  not  think  we  need  go  any  further  into  the  report  of  the  Committee  on 
Taxation. 

Mr.  Gillespie:  Mr.  Chairman,  I  desire  to  offer  my  amendment,  and  it  need  not  be 
acted  on  at  this  time.  The  amendment  I  propose  is  to  strike  out  all  the  words  of  Sec- 
tion 6,  after  the  v/ord  "determine,"  in  line  12,  The  words  stricken  out  would  be  these: 
"But  said  capitation  tax  shall  not  be  a  lien  upon,  nor  collected  by  legal  process  from, 
the  personal  property  which  may  be  exempt  from  levy  or  distress  under  the  poor 
debtors'  law," 

My  idea  is  that  every  man  who  lives  under  a  government  ought  to  contribute  some- 
thing to  the  support  of  that  government,  and  if  he  has  anything  it  ought  to  be  taken 
from  him,  to  the  extent  of  the  capitation  tax,  for  the  support  of  the  government.  Then 
I  would  further  add  these  words :  "  The  General  Assembly  may  provide  for  the  dis- 
charge of  delinouent  capitation  taxes  by  labor  on  the  public  road," 

I  voted  against  the  amendment  of  the  gentleman  from  Scott  (Mr,  Richmond),  not 
believing  it  was  right  to  require  a  man  to  pay  his  capitation  tax  and  then  give  free 
labor  upon  the  public  roads;  but  I  do  believe  it  is  right  that  a  man  who  has  no  other 
way  of  discharging  his  public  duties  and  his  capitation  tax  should  be  allowed  to  dis- 
charge it  by  labor  upon  the  public  roads,  in  a  manner  provided  for  by  the  General 
Assembly, 

On  motion  of  Mr.  Hamilton  the  committee  rose  and  the  President  resumed  the 
chair. 

On  motion  of  Mr.  Thomas  H.  Barnes  the  Convention  adjourned  until  Monday, 
February  24,  1902,  at  12  o'clock  M. 


DEBATES  OF  THE  COXSTITFTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


2649 


MONDAY,  February  24,  1902. 

•   The  Convention  met  at  12  o'clock  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

OFFFiCE  OF  THE  ADJUTANT-GENERAL. 

Mr.  Brooke:  I  offer,  by  request,  a  resolution  relating  to  the  office  of  the  Adjutant- 
General,  and  ask  that  it  be  referred  to  the  Committee  on  the  Executive  Deparment. 

Resolved,  That  the  Committee  on  the  Executive  Department  be  directed  to  report 
upon  the  advisability  of  incorporating  in  the  Constitution  the  following  provision: 

There  shall  be  appointed  by  the  Governor  an  Adjutant  General,  whose  duties  shall 

be  prescribed  by  law%  and  who  shall  hold  his  office  for  the  term  of  years,  unless 

sooner  removed,  with  the  approval  of  the  Governor,  by  the  finding  of  a  court  martial 
organized  and  conducted  as  the  law  requires. 

TAXATION  AND  FINANCE. 

On  motion  of  Mr.  Fairfax  the  Convention  resolved  itself  into  Committe  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Taxation  and 
Finance,  Mr.  Ayers  in  the  chair. 

The  Chairman:  The  question  is  upon  the  amendment  offered  by  the  gentleman 
from  Tazewell  (Mr,  Gillespie)  to  insert  in  Section  6  the  words,  "  The  General  Assembly 
may  provide  for  the  discharge  of  deiiquent  capitation  taxes  by  labor  on  the  public 
roads." 

Mr.  Epes:  I  think  that  proposition  ought  to  be  divided.  There  are  two  proposi- 
tions in  the  amendment,  one  to  strike  out  the  words  read,  and  the  other  to  insert  the 
language  proposed.    I  favor  one  of  those  propositions  and  oppose  the  other. 

The  Chairman:  Unless  there  is  objection,  the  amendment  will  be  so  divided.  The 
question  will  be  first  upon  the  motion  of  the  gentleman  from  Tazewell  to  strike  out  the 
language  referred  to. 

Mr.  IMeredith:  Mr.  Chairman,  it  is  the  hope  of  the  Committee  on  Taxation  and 
Finance  that  the  Committee  of  the  Whole  will  not  see  fit  to  strike  out  that  language. 
It  may  be  necessary  hereafter  to  broaden  it  still  more. 

It  is  desirable  that  this  capitation  tax  shall  be  a  voluntary  contribution.  We 
recognize  the  necessity  for  it,  and  we  deem  it  desirable  that  any  man  who  does  not  pay 
that  tax  should  not  be  forced  to  pay  it.  We  recognize  the  condition  of  affairs  in  this 
State  requires  that  that  tax  should  be  a  voluntary  tax,  and  we  ask  that  the  motion  of 
the  gentleman  from  Tazewell — that  part  of  it,  beginning  in  line  12,  saying  that  the 
capitation  tax  shall  not  be  a  lien  upon,  nor  collected  by  legal  process  from,  the  personal 
property  which  may  be  exempt  from  levy  or  distress  under  the  poor  debtor's  law — be 
not  agreed  to,  and  that  the  provision  be  allowed  to  stay  in  the  report.  It  is  possible 
that  when  the  Suffrage  Committee  makes  its  report  that  language  may  be  made  broader 
still,  that  it  shall  not  be  collected  from  any  property,  but  be  a  purely  voluntary  contribu- 
tion to  the  State.  Therefore  the  committee  hopes  that  language  will  be  allowed  to 
stay  in  for  the  present,  at  least. 

Mr.  Summers:  We  are  together  in  regard  to  the  resolution;  but  differ  in  the 
motive. 

Mr.  Chairman  and  gentlemen  of  the  committee,  on  this  beautiful  morning,  as  I 
came  from  my  house  to  this  hall,  I  looked  over  to  the  Capitol  of  this  proud  old  State. 
I  sav7  the  banner  of  the  State,  with  the  Goddess  of  Liberty  standing  so  proud  and  pure 
with  her  foot  upon  the  tyrant's  throat;  and  that  flag  waived  to  the  grand  country  from 
which  I  hail.  And  when  I  thought  of  the  fact  that  the  most  charming  and  beautiful  of 
the  handmaidens  that  wait  upon  that  Goddess  were  from  the  country  of  my  noble  friend 
167 — Const.  Deb. 


2650 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


from  Tazewell,  and  the  county  of  Washington,  I  considered  that  it  would  be  a  wonder  to 
our  friends  for  us  to  disagree.  I  can  account  for  this,  gentlemen  of  the  committee, 
upon  this  ground:  My  friend  from  Tazewell  is  an  optimist,  looking  for  a  bright  future, 
while,  for  the  present,  I  am  a  pessimist,  and  for  my  people  see  nothing  but  gloom  and 
sliadow  awaiting  them. 

Gentlemen  of  the  committee,  I  hope  that  the  sequel  may  prove  my  friend  from  Taze- 
well right;  but  be  that  as  it  may,  we,  in  our  land  and  country,  will  be  found  in  the  last 
ditch. 

Now,  let  us  address  ourselves,  Mr.  Chairman,  to  this  question  which  I  consider  to 
be  the  most  important  that  has  arisen  or  that  will  arise  in  this  Convention.  Here  is 
the  question  that  presents  itself  in  Section  6:  "The  General  Assembly  shall  levy  a 
Slate  capitation  tax  of,  and  not  exceeding,  $1.50  per  annum  on  every  male  resident  of 
this  State  not  less  than  21  years  of  age,  except  pensioners  of  this  State  for  military  ser- 
vices; $1  of  which  shall  be  applied  exclusively  in  aid  of  the  public  free  schools  in  pro- 
portion to  the  school  population,  and  the  remaining  50  cents  of  which  shall  be  returned 
and  paid  by  the  State  into  the  treasury  of  the  county  or  city  in  which  it  was  collected, 
to  be  appropriated  by  the  proper  county  or  city  authorities  to  such  county  or  city  pur- 
poses as  they  shall  respectively  determine;  but  said  capitation  tax  shall  not  be  a  lien 
upon,  nor  collected  by  legal  process  from,  the  personal  property,  which  may  be  exempt 
from  levy  or  distress  under  the  poor  debtor's  law." 

The  first  part  of  that  section,  gentlemen,  will  be  amended,  or  at  least  there  will  be 
amendments  offered  to  it,  which  do  not  concern  us.  One  of  them  will  be  that  this  capi- 
tation tax  shall  be  made  $1;  and  then,  again,  instead  of  exempting  alone  Confederate 
pensioners,  I  propose  to  spread  the  mantle  of  the  State  so  that  it  will  cover  the  few 
remnants  of  that  grand  body  of  men  who  served  with  us  in  our  grand  cause.  But  we  are 
not  now  considering  that.  The  question  is,  Shall  the  capitation  tax  cease  to  be  a  lien 
upon  the  property  of  the  people  of  Virginia?  It  will  be  a  popular  measure?  I  do  not 
attribute  the  motive  to  the  members  of  this  committee  that  this  is  done  for  the  purpose 
of  putting  a  certain  party  in  power,  I  am  advocating  it  because  I  believe  it  right,  let 
whoever  be  in  power  that  may  be.  The  poor  law  exemption  of  this  State  is  a  pair  of 
horses,  a  mule,  a  wagon,  or,  if  he  has  not  got  that,  a  little  house  and  furniture,  some 
knives  and  forks,  a  barrel  of  flour,  and  a  few  bushels  of  meal.  Now,  the  object  of  the 
poor  debtor's  law  was  to  protect  those  who  had  no  capital,  those  who  had  no  means  of 
living  except  by  the  sweat  of  their  brow. 

My  friend  from  Tazewell  (Mr.  Gillespie)  has  put  it  so  that  it  can  be  enforced.  The 
politicians  of  this  Convention  say  do  not  enforce  it,  from  political  motives,  and  so  as  to 
throw  the  poor  man  off  his  guard,  and  the  rich  and  mighty  may  control  the  State.  But 
that  is  not  my  principle.  I  say  release  the  lien.  I  have  lived  long  enough,  until  I  have 
seen  our  little  collectors  riding  over  this  State  in  my  county  for  years  and  years.  I 
have  seen  women  barefooted,  children  barefooted,  old  men  tottering  with  age,  and  these 
little  despicable  collectors  come  round  and  levy  upon  the  last  thing  on  God's  earth  they 
have.  I  want  to  prevent  this,  not  in  the  interests  of  the  Democratic  party,  nor  in  the 
interests  of  any  other  party,  but  because  the  principle  is  wrong;  and  if  it  is  a  democratic 
measure,  thank  God  that  they  have  for  once  stumbled  and  blundered  upon  a  grand  prin- 
ciple that  I  think  is  right. 

What  effect  will  it  have  upon  the  State?  According  to  the  clerks  I  have  at  work, 
this  will  apply  to  196,000  voters  of  the  State  of  Virginia.  History  repeats  itself.  The 
black  wave  was  started  years  ago  in  the  State  of  Mississippi,  and  it  has  moved  around 
the  South,  and  at  last  the  simoom  has  struck  the  old  State  of  Virginia,  and  now  wages 
battle  against  the  battlements  of  freedom  and  liberty.  Are  we  to  expect  any  more  at 
the  hands  of  this  Convention  than  they  have  in  Mississippi,  Alabama,  South  Carolina 
and  North  Carolina?  My  friend  from  Tazew^ell  believes  that  there  is  hope.  There  is 
none.  The  poor  man,  when  this  assembly  is  over,  will  be  crowned  with  a  damning 
understanding  clause  that  means  fraud  and  perjury  for  the  next  thirty  years.  When 


DEBATES  OF  THE  COXSTITrTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


2651 


vre  leave  this  hall,  and  I  vrant  my  friend  from  Taze^vell  to  remember  it.  the  foe:  of  the 
tyrant  will  be  upon  the  neck  of  the  poor  man,  and  it  will  stay  there  until  God  Almighty 
in  some  future  day  removes  it.    I  do  not  look  for  anything  else. 

My  friend,  in  his  optimistic  delusion,  is  more  buoyant  and  hopeful,  but  it  is  but  a 
mirage  playing  upon  a  sandy  desert,  that  never  existed  and  never  vrill  exist  in  Virginia. 
Time  vill  prove  v,-ho  is  right.  We  vrill  have  the  State  of  a3airs  that  exists  in  Xorth 
Carolina,  South  Carolina,  :Mi55issippi  and  Alabama,  and  Virginia  vrill  be  as  poor  in  her 
old  age  as  she  was  when  she  followed  them  in  1S61 — and  I  went  with  her.  She  is  going 
to  rob  us  of  our  best  blood  and  capital.  But  our  party  leaders  are  going  to  do  this 
thing,  and  you  might  as  well  try  to  stop  a  herd  of  frightened  buffaloes  upon  the  plain 
as  to  try  to  stop  the  politician  in  his  onward  march  in  the  destruction  of  the  poor  people 
of  Virginia.  Xow,  with  that  state  of  affairs,  what  do  I  want?  I  repeat  again  we  are 
none  of  your  common  soldiers,  we  are  the  men  that  led  the  van,  and  the  virtue  of  our 
women  is  phenomenal,  poor  as  they  may  be.  You  have  taken  and  will  take  from  us 
all;  you  will  rob  us  of  our  rights  and  crown  all  other  evils  with  an  understanding 
clause  that  means  perjury  for  thirty  years. 

Xow  that  we  have  lost  all  interest  and  honor  in  our  government,  take  away  from 
the  hand  of  a  vicious  collector  the  power  to  walk  into  my  humble  cabin  and  take  the 
last  thing  on  God's  earth  to  pay  a  government  for  protection  that  has  robbed  them  of 
all  they  had,  or  will  have  for  the  next  thirty  years. 

Xow,  you  Democrats  that  are  honest,  I  am  with  you  in  heart  and  principle.  Leave 
us  what  little  things  we  have  upon  earth  and  let  us  redeem  them.  My  prayer  is  that  the 
gentleman  from  TazeAvell  may  be  right  and  that  I  may  be  wrong,  but  I  c-an  see  as  far 
into  the  dark  future,  I  am  presuaded  as  any  man  living  to-day.  TLaughter.) 

I  thank  you,  gentlemen. 

Mr.  Davis:  Mr.  Chairman,  I  rise  to  offer  a  substitute  for  Section  G,  which  I  ask 
may  be  read. 

Substitute  for  Section  G.  the  following: 

The  General  Assembly  may  levy  a  tax  not  exceeding  one  dollar  per  annum  on 
every  male  citizen  who  has  attained  twenty-one  years  of  age.  except  pensioners  of  this 
State  for  military  services;  which  shall  be  applied  exclusiA^ely  in  aid  of  the  public  free 
schools. 

Mr.  Hamilton:  The  motion  before  the  house.  I  believe,  is  that  of  the  gentleman 
fT^om  Tazewell  to  strike  out  certain  words.  I  feel  that  it  is  proper  to  say  to  the  com- 
mittee, in  a  few  plain  words  that  we  hope  that  it  will  not  be  stricken  out.  This  pro- 
vision is  nothing  more  than  the  present  poll-tax  levied  in  Virginia  now.  It  is  one  dollar 
tc  the  State  everywhere  and  fifty  cents  to  the  locality.  VTe  simply  make  it  payable  to 
the  State,  and  we  relieve  the  man  who  has  no  more  property  than  the  poor  debtors'  law 
exempts,  from  having  it  forcibly  collected  from  him.  There  are  good  reasons  why  this 
should  remain  just  as  it  is.    I  hope  there  will  be  no  striking  out. 

:Mr.  Gillespie:  Mr.  Chairman  and  gentlemen  of  the  committee.  T  regret  that  I 
differ,  perhaps,  from  not  only  the  Democratic  but  also  from  the  Republican  members  of 
the  Committee  of  the  Vhole.  I  differ  also  from  the  Committee  on  Taxation  and 
Finance.  I  think  it  is  but  just  to  myself  that  I  should  state  the  reasons  for  the  amend- 
ment to  the  committee.  I  must  further  say  that  I  think  if  the  proper  consideration  was 
given  to  this  question  the  Committee  of  the  Vhole  would  not  desire  to  place  this  pro- 
vision in  the  Constitution.  There  is  no  necessity  for  placing  it  in  the  Constitution.  If 
it  becomes  necessary  to  say  that  certain  property  shall  be  exempt  from  the  levy  and 
collection  of  this  capitation  tax,  then  that  can  be  done  at  any  time  by  the  Legislature. 
Vi'hy,  then,  place  it  within  the  Constitution,  so  that  it  will  make  it  impossible  to  collect 
a  great  deal,  if  not  the  greater  part  of  the  capitation  tax  of  this  Commonwealth? 

Xow,  as  I  said  when  I  offered  this  amendment,  it  seems  to  me  that  a  reasonable 
capitation  tax  is  but  a  just  tax.    One  dollar  and  fifty  cents  is  not  an  unreasonable  tax 


2652  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 

to  my  mind.  Every  man  in  this  Commonwealth  has  the  protection  of  the  law,  every 
man,  no  matter  whether  in  his  home  or  in  the  performance  of  public  duties,  or  on  the 
highway,  has  the  mantle  of  protection  of  the  law  thrown  around  him.  The  whole  power 
of  the  Commonwealth  is  here  to  protect  him.  Then,  gentlemen  of  the  committee,  is  it 
reasonable  to  say  citizens  should  render  nothing  for  this,  and  that  we  should  fix  it  so 
that  it  cannot  be  collected.    I  do  not  think  it  is  reasonable. 

Another  consideration  that  I  would  call  to  the  attention  of  the  committee  is  that 
this  capitation  tax  has  been,  in  the  past,  and  I  suppose  will  be  in  the  future,  set  apart 
for  public  free  schools. 

How  far  then,  is  this  going  to  effect  the  revenue  of  the  State  for  that  purpose?  I 
notice  from  some  tables  that  were  furnished,  that  in  the  year  1899  there  were  capitation 
taxes  amounting  to  $124,031.37  returned  delinquent  in  this  State.  If,  then,  the  prop- 
erty which  is  now  exempt  under  the  poor  debtors'  law  is  exempted,  may  we  not  expect 
that  very  greatly  increased? 

How  far  is  it  going  to  affect  the  revenue?  Who  can  tell?  And  now  the  proposition 
is  to  put  it  in  the  Constitution,  and  no  matter  how  far  it  affects  the  revenue  it  cannot 
be  corrected  in  the  future.  I  do  not  think  it  is  a  wise  propositon.  I  think  it  is  one 
which,  if  the  committee  gives  it  proper  consideration,  will  not  go  into  the  Constitution. 

I  notice  that  in  a  table  furnished,  there  are  about  103,000  persons  reported  as  hav- 
ing as  much  as  $300  worth  of  real  estate  in  this  Commonwealth;  that  out  of  447,000  in 
round  numbers,  persons  over  twenty-one  years  of  age  in  this  Commonwealth,  there  are 
only  103,000  owning  as  much  as  $300  worth  of  real  estate.  I  imagine,  gentlemen,  that 
there  will  not  be  more  than  100,000  more,  owning  more  than  $150  worth  than  is  exempt 
under  the  poor  law.  Under  the  poor  debtors'  law  there  is  exempt  to  a  man  engaged  in 
agriculture  two  horses,  one  wagon,  cov/  and  calf,  and  various  articles  of  a  household 
nature,  I  would  say  not  less  than  $150.  Then  the  proposition  is  to  make  them,  probably 
for  all  time,  free  from  the  collection  of  this  capitation  tax,  I  do  not  think,  gentlemen, 
that  is  a  wise  proposition.  I  do  not  think  that  without  knowing  how  far  and  how  it 
will  affect  the  revenue,  especially  for  the  purposes  for  which  this  revenue  is  collected, 
this  committee  will  place  it  in  the  Constitution.  The  theory  of  public  education  is  that 
it  is  a  benefit  to  the  Commonwealth  and  that  the  citizens  of  the  Commonwealth  are  to 
be  benefited;  that  it  is  to  raise  a  higher  standard  of  morals;  that  there  will  be  less 
crime  if  our  citizensliip  is  educated.  The  Commonwealth  expects  to  derive  a  benefit 
from  this  education.  Then  we  should  have  all  the  benefit  that  can  be  derived  from  it. 
What  does  the  poor  man  do  who  pays  $1.50  to  the  State  for  this  purpose?  He  but  makes 
the  State,  as  it  were,  a  trustee  to  expend  that  much  for  the  education  of  his  children, 
to  make  better  citizens  of  them.  It  does  not  seem  to  me  that  it  is  an  improper  tax  or  one 
which  the  people  ought  to  be  unwilling  to  pay,  although  I  have  no  doubt  if  you  relieve 
them,  by  saying  that  their  property  will  be  exempt  from  levy,  many  of  them  will  not 
pay  it. 

Gentlemen,  v/hilst  I  am  on  my  feet,  I  will  give  my  reasons  for  the  second  part  of 
my  amendment;  that  when  it  is  impossible  to  collect  the  capitation  tax  by  levy,  then 
that  the  persons  against  whom  they  exist,  shall  be  allowed  to  discharge  them  by  labor 
upon  the  public  roads.  That  is  but  giving  a  man  an  opportunity  to  discharge  his  duty 
to  the  State,  if  he  wishes  to  do  so.  I  do  not  say  that  it  shall  be  done,  but  my  amend- 
ment provides  that  the  General  Assembly  may  vote  for  it.  What  objection  can  there  be 
to  that?  This  document,  which  is  supplied  from  the  Auditor's  office,  shows  thai  there 
are  65,000  white  men  over  twenty-one  years  of  age  who  in  1899  failed  to  pay  their  capita- 
tion taxes.  If  it  is  to  be  made  a  prerequisite  to  voting,  then  I  want  those  65,000  white 
men  to  have  an  opportunity,  if  they  desire  to  do  it,  to  render  their  dues  to  the  State, 
and  to  be  able  to  vote.  Many  of  them  have  no  money,  but  many  of  them  would  be  will- 
ing to  give  the  two  days'  labor  upon  the  roads,  or  whatever  time  might  be  required  of 
them,  to  discharge  that  $1.50  of  capitation  tax  levied  against  them.  I  do  not  ask  you 
to  put  it  into  the  Constitution,  but  that  all  that  shall  be  done,  is  to  leave  it  to  the 
3.egislature,  if  they  should  hereafter  desire  to  do  it,  to  provide  such  a  law. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2653 


Gentlemen,  I  have  presented  these  amendments,  feeling  that  they  are  proper  and 
right.  The  first  amendment  striking  out  a  portion  of  Section  6,  I  believe,  is  proper  and 
right,  and  the  other  should  go  into  the  Constitution  in  order  to  enable  a  man  if  he  de- 
sires, to  discharge  his  duties.  Every  duty  required  of  a  citizen,  he  ought  to  perform 
and  the  opportunity  should  be  given  him  to  perform  it. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Tazewell  to  strike  out. 

The  amendment  was  rejected. 

The  Chairman:  The  gentleman  from  Tazewell  (Mr.  Gillespie)  offers  the  following 
amendment  which  the  Secretary  will  read: 

Add  at  the  end  of  Section  6  the  following  words: 

The  General  Assembly  may  provide  for  the  discharge  of  delinquent  capitation 
taxes  by  labor  on  the  public  roads. 

The  amendment  was  rejected. 

The  Chairman:    The  question  now  is  upon  the  substitute  offered  by  the  gentleman 
from  Franklin  (Mr.  Davis),  which  the  Secretary  will  read. 
The  substitute  was  rejected. 

The  Chairman:  Are  there  any  other  amendments  to  Section  6?  If  not  the  Secre- 
tary will  read  Section  7. 

Sec.  7.  After  this  Constitution  shall  be  in  force,  no  statute  of  limitations  shall  run 
against  any  claim  of  the  State  for  taxes  upon  any  property;  nor  shall  the  failure  to 
assess  property  for  taxation  defeat  a  stibsecuent  assessment  for  and  collection  of  taxes 
for  any  preceding  year  or  years,  unless  such  property  shall  have  passed  to  an  innocent 
bona  fide  purchaser  for  value. 

Mr.  Wysor:    I  move  to  strike  out  this  section. 

Mr.  Fairfax:  I  would  like  to  call  the  attention  of  the  gentlemen  of  the  committee 
to  the  fact  that  during  the  consideration  by  the  Committee  on  Finance  and  Taxation  of 
this  question,  we  called  into  council  the  officers  of  the  State,  notably  the  Auditor  of 
Public  Accounts,  who  has  been  in  his  present  position  for  twenty-odd  years,  I  believe, 
and  when  he  came  to  this  article  he  said  it  was  the  most  commendable  article  that  had 
been  offered  to  his  knowledge.  He  said  it  was  covering  ground  that  had  made  more 
trouble  than  any  question  that  had  come  before  the  Auditor  for  years.  He  commended 
this  article  most  highly  as  one  that  ought  to  be  put  into  the  Constitution.  I  am  making 
this  statement  in  order  to  show  you  his  appreciation  of  this  article. 

Mr.  Barbour:    May  I  ask  what  reason  he  gave  for  that  opinion? 

Mr.  Fairfax:  He  gave  numerous  and  sundry  reasons,  that  I  am  not  able  to  explain 
here  on  the  floor,  for  the  simple  reason  that  I  did  not  tax  my  mind  with  them.  "We  felt 
so  confident  that  it  was  an  important  measure,  and  one  that  ought  to  go  into  the  Con- 
stitution, that  we  had  no  idea  that  there  would  be  any  objection  to  it. 

Mr.  Stuart:  I  hope  it  will  not  be  the  pleasure  of  this  committee  to  strike  out  this 
section.  In  examining  and  in  having  titles  examined  in  the  Southwestern  part  of  the 
State,  I  have  frequently  been  greatly  puzzled  by  the  operation  of  the  statutory  release  of 
the  claim  of  the  State  for  taxes.  It  may  not  be  within  the  knowledge  of  the  members  of 
this  committee,  or  within  the  knowledge  of  any  considerable  number  of  them,  that  there 
are  large  patents  lying  on  very  considerable  territories  in  various  cotmties  of  this  State, 
notably  the  counties  of  Buchanan,  Dickenson,  Wise  and  perhaps  others  similarly 
situated.  Some  of  these  patents  were  granted  considerably  more  than  a  hundred  years 
ago.  Since  that  time  actual  settlers  have  come  in  and  occupied  these  lands  and  have 
acquired  a  bona  fide  title.  The  lands  are  now  occupied  by  them,  as  they  believe,  under 
an  absolute  title.  In  the  meantime  these  great  patents  are  hanging  over  them,  claimed 
by  parties  who,  perhaps,  have  acquired  them  in  exchange  for  suburban  real  estate  in 
some  Western  city.    They  are  nothing  more  than  poker  chips  in  a  game  of  poker,  and 


2G54:  DEBATES  OF  THE  CONSTITUTIO^TAL  COISTVENTION"  OF  VIRGINIA, 

yet  they  will  stand  in  the  way  of  the  people,  the  inhabitants  of  this  State.  How  have 
they  seen  made  so?  By  frequently  recurring  acts  of  the  Legislature  excepting  the 
holders  of  sucn  patents  from  liability  to  this  State  for  taxes.  In  other  words,  a  for- 
eigner has  been  allowed,  over  and  over  again,  to  obtain  a  release  from  liablity  to  the 
State,  in  order  that  he  might  hold  a  bogus  title  over  the  actual  occupant  and  settlers. 
No  citizen  of  this  State  has  been  granted  any  such  privilege,  so  far  as  I  know.  Such  a 
light  has  been  granted  only  when  the  representatives  of  large  patents,  such  as  I  have 
mentioned,  come  in  and  log-rolled  a  general  scheme  through  the  General  Assembly,  for 
their  release,  i  hope  there  will  be  no  authority  left  in  the  General  Assembly  to  repeat 
such  a  performance.  They  are  an  unmixed  evil  and  are  unjust  to  the  citizens  of  this 
State.  I  hope  that  this  section  will  be  retained  because  it  serves  directly  to  redress  the 
wrongs  which  have  heretofore  been  committed  by  the  General  Assembly. 

Mr.  R.  Walton  Moore:  I  would  suggest  to  the  gentleman  from  Pulaski  (Mr. 
Wysor)  that  if  his  motion  were  to  prevail  it  would  not  accomplish  the  result  that  he 
seems  to  be  aiming  at.  He  has  referred  to  a  statute  wnich  is  now  in  force,  fixing  the 
term  of  the  statute  of  limitations  at  five  years,  upon  all  arrears  of  taxes. 

The  gentlemen  of  the  committee  know  very  well  that  when  the  lien  for  taxes 
accrues  the  Commonwealth,  very  soon  thereafter,  purchases  the  land  and  then  the 
statute  ceases  to  run,  and  has  no  operation  at  all.  So  that  even  if  we  were  to  strike 
out  the  provision  that  is  sought  to  be  stricken  out  by  him,  we  would  not,  practically, 
have  any  five  years'  limitation. 

The  reason  is  that  the  courts  have  said  that  if  the  lien  has  attached,  and  the  land 
has  been  purchased  by  the  Commonwealth,  which  is  always  done  short  of  the  expiration 
of  the  five  year  period,  then  the  statute  ceases  to  run.  Then  there  is  no  limitation  at 
all.  The  title  is  in  the  Commonwealth,  and  the  Commonwealth  can  at  her  pleasure,  and 
in  her  own  time,  bring  about  a  resale  of  the  property.  But  independently  of  that,  it 
does  seem  to  me  that  the  Constitution  ought  to  say  that  no  statute  of  limitation  shall 
run  against  the  Commonwealth  touching  its  lien  for  taxes.  There  is  a  long  period 
given  for  the  life  of  a  judgment.  There  is  a  long  period  given  for  the  life  of  a  note  or 
bond.  The  general  rule  is  that  no  statute  of  limitation  shall  run  against  the  Common- 
v/ealth;  and  yet  we  find  that  there  has  been  a  limitation  of  five  years  provided  by 
statute. 

If  such  an  act  could  be  made  effective,  it  would  work  an  injustice.  It  would  be 
practically  a  discrimination  in  favor  of  one  citizen  or  class  of  citizens  or  body  of  citi- 
zens against  others  who  are  prompt  in  paying  their  taxes  and  liabilities.  I  can  see  no 
reason  w^hy,  when  a  public  lien  fastens  itself  upon  real  estate,  that  lien  should  be  ex- 
tinguished by  lapse  of  time,  either  short  or  long.  If  I  were  framing  that  section,  I  am 
free  to  say  I  would  go  a  step  farther  than  the  committee  has  and  declare  that  the  State 
shall  not,  by  general  law,  remit  or  release  tax  liabilites  that  have  accrued.  I  think 
there  have  been  abuses  along  that  line.  I  recall  one  instance  in  which  the  State  by  a 
release  statute  surrendered  heavy  liabilities  that  might  and  should  have  been  collected. 
I  shall  not  propose  any  amendment  of  that  character.  I  only  hope  that  this  section 
which  seems  to  have  commended  itself  to  the  authorities  of  the  State,  and  which  was 
fully  canvassed  in  the  committee,  may  not  be  stricken  out. 

Mr.  Braxton:  What  would  be  the  effect  of  this  enactment,  where  the  person  whose 
name  the  tax  was  assessed  had  lost  his  title  under  the  operation  of  the  statute  of  limita- 
tions? Would  the  State  continue  to  hold  a  lien  upon  the  property  if  the  person  against 
whom  the  tax  was  assessed  had  lost  his  title? 

Mr.  R.  Walton  Moore:  As  I  understand  it,  that  vt^ould  be  a  case  where  the  land  was 
assessed,  let  us  say  in  the  name  of  Smith.  Then  the  name  of  Smith  would  be  in  the 
chain  of  title  and  the  record  would  show  the  tax  liability  in  that  name  upon  that  par- 
ticular tract  01  land.  I  do  not  see  why  the  purchaser  taking  that  tract  of  land  should 
not  be  bound  to.  clear  that  tax  liability.  I  do  not  find  anything  in  this  section  that 
would  prevent  the  State  from  compelling  the  party  who  finally  buys  the  land  to  pay  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGINIA. 


2655 


amount  of  tax  for  which  the  land  was  returned  delinquent  in  the  name  of  Smith,  albeit 
subsequently  Smith  may  have  lost  title  to  the  property. 

Mr.  Turnbull:  As  the  gentleman  from  Pulaski  (Mr.  Wysor)  has  offered  to  strike 
out  the  whole  section,  I  want  to  offer  an  amendment  to  it  in  a  practical  way. 

Mr.  Wysor:  WilL  you  wait  a  moment  with  your  amendment?  I  am  going  to  change 
my  amendment. 

I  now  move  to  strike  out  all  the  first  part  of  the  section  down  to  the  word  "  the  " 
just  before  the  word  "failure,"  in  the  third  line;  and  to  insert  the  words  "shall  not," 
before  the  word  "defeat,"  in  the  fourth  line;  and  after  the  word  "years"  in  the  fifth 
line,  to  insert  the  words  "  not  exceeding  five  years." 

So  that  it  will  read,  if  this  amendment  is  adopted: 

The  failure  to  assess  property  for  taxation  shall  not  defeat  a  subsequent  assess- 
ment for  and  collection  of  taxes  for  any  preceding  year  or  years,  not  exceeding  five 
years,  unless  such  property  shall  have  passed  to  a  bona  fide  purchaser  for  value. 

The  committee  will  observe  that  I  strike  out  all  of  the  first  three  lines  after  the 
word  "  the  "  in  the  third  line.  I  think  that  should  be  done  and  that  there  should  be  a 
limit  to  the  Commonwealth  lien  for  taxes.  Certainly  the  Legislature  should  have  the 
power  to  make  such  a  limit.  You  are  taking  away  from  the  Legislature  the  power  to 
pass  an  act  limiting  the  lien  of  taxes  on  property.  I  do  not  think  that  power  should  be 
taken  from  the  Legislature.  It  has  always  had  the  power  and  has  exercised  the  power. 
It  makes  the  Commonwealth  prompt  in  the  collection  of  taxes.  As  to  the  point  made  by 
The  gentleman  from  Fairfax,  that  I  w^ould  not  get  the  benefit  of  my  amendment,  anyhow, 
of  course  if  the  Commonwealth  goes  on  and  collects  its  taxes  before  they  are  barred  by 
sale  or  otherwise,  that  would  end  it. 

Mr.  R.  Walton  Moore:  Perhaps  I  failed  to  make  myself  understood.  The  Common- 
wealth buys  the  land  in.  There  is  no  payment  of  taxes,  but  a  merely  nominal  purchase 
of  the  land  by  the  Commonwealth,  which  operates  to  prevent  the  running  of  the  statute 
of  limitations. 

Mr.  Wysor:  That  does  not  always  happen.  If  you  will  look  up  some  of  the  late 
cases  you  will  find  the  case  of  Moore  vs.  Repass,  in  Wythe  county,  where  the  taxes  had 
ri7n  from  eight  to  ten  years,  and  Repass  v/as  trying  to  enforce  a  lien  for  taxes.  He  had 
not  collected  the  taxes,  but  kept  them  in  his  pocket  for  years,  and  then  came  forward 
and  claimed  he  had  a  lien.  The  court  held  that  they  would  be  barred  in  five  years,  but 
that,  in  this  case,  they  were  not  barred,  because  a  creditor's  bill  had  been  filed  which 
saved  the  lien,  I,  however,  succeeding  in  defeating  the  tax  on  the  ground  that  the 
treasurer  could  not  be  subrogated  to  the  title  of  a  Commonv/ealth  under  the  circum- 
stances. 

I  say  there  ought  to  be  some  limitation  to  the  lien  for  taxes. 

The  point  made  by  the  gentleman  from  Russell  (Mr.  Stuart)  certainly  does  not 
apply  to  a  lien.  I  suppose  he  was  addressing  himself  to  the  question  of  assessments, 
and  to  the  proposition  that  the  failure  to  assess  property  for  taxation  shall  not  defeat 
a  subsequent  assessment.  The  language  of  the  amendment  is  "  the  failure  to  assess 
property  for  taxation  shall  not  defeat  a  subsequent  assessment  for  and  collection  of 
taxes  for  any  preceding  year  or  years,  not  exceeding  five  years." 

Mr.  Stuart:  It  is  that  section  I  am  particularly  anxious  to  have  retained  as  it 
pppears  in  the  report  of  the  committee. 

Mr.  Wysor:  The  only  amendment  I  ask  is  to  have  it  limited  to  five  years.  I  ask 
that  these  amendments  be  voted  on  in  order. 

Mr.  Meredith:  Mr.  Chairman,  on  behalf  of  the  Committee  on  Taxation  and 
Finance,  I  ask  that  this  section  be  allowed  to  stay  as  it  is.  We  think,  if  you  will  give 
it  such  consideration  as  ought  to  be  given  to  it,  you  will  see  that  no  hardship  is  done  to 
anybody,  but  that,  on  the  other  hand,  it  tends  to  make  the  burden  fair  and  equal  to 
everybody.    There  is  no  meritorious  claim  in  a  statute  of  limitations.    There  is  no 


265(3 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


moral  obligation  as  to  when  a  debt  shall  be  past  collection.  It  is  simply  the  favor  of 
the  State  granted  to  different  people  and  under  different  circumstances.  There  is  no 
right  that  any  one  should  be  relieved  of  a  debt.  It  does  not  make  any  difference  whether 
it  is  ten  years  or  five  years  old.  You  have  no  moral  right  to  be  relieved  at  any  time. 
It  is  just  a  question  whether  a  statute,  in  the  nature  of  a  statute  of  repose,  shall  be 
passed  adopting  a  policy  which  will  say  it  is  better  that,  at  a  certain  time,  debts  shall 
cease  to  be  due  and  collectible.  It  is  only  a  favor  granted  by  the  State.  So  I  say  there 
is  no  man  who  has  any  moral  right  or  claim  to  be  released  from  debt.  Yet  when  you 
come  to  know  what  has  been  the  exercise  of  the  power  of  the  Legislature  in  passing 
statutes  of  limitation,  you  will  find  this  remarkable  state  of  affairs:  That  as  to  debts 
due  to  the  Commonwealth,  as  to  taxes,  as  to  that  upon  which  she  lives,  as  to  that  which 
is  necessary  to  her  existence,  she  makes  the  statute  of  limitations  five  years;  and  upon 
a  bond  it  is  now  ten  years. 

Mr.  Braxton:  Have  you  considered  what  effect,  if  any,  this  would  have  upon  the 
efficient  operation  of  the  Torrens  system  of  land  registry  and  guaranteeing  titles? 

Mr.  Meredith:  None  at  all.  I  think  if  you  declare  that  no  statute  of  limitations 
shall  be  passed,  you  then  know  exactly  the  conditions  of  affairs.  If  the  State  undertakes 
to  guarantee  the  title  it  undertakes  to  guarantee  it  against  its  OM^n  taxes.  She  would 
not  guarantee  the  title  until  the  taxes  were  paid. 

Mr.  Braxton:    If  she  knew  it? 

Mr.  Meredith:  She  must  know  it.  It  is  claimed  that  we  ought  to  leave  to  the 
Legislature  the  right  to  exercise  this  power;  and  yet  you  find  that  v/nen  it  has  been 
exercised  by  the  Legislature  it  has  been  exercised  against  the  State,  that  the  statute 
of  limitations  does  not  run  against  a  bond  for  ten  years,  v/hile  a  debt  to  the  State  can- 
not be  collected  after  five  years. 

Mr.  Thornton:  How  would  it  affect  a  case  where  the  land  is  assessed  in  an 
improper  name?    I  understand  this  lien  to  be  "in  rem."    What  effect  would  that  have? 

Mr.  Meredith:  That  would  not  affect  the  title  except  as  provided  below — "  Nor 
shall  the  failure  to  assess  property  for  taxation  defeat  a  subsequent  assessment  for 
the  collection  of  taxes  for  any  preceding  year  or  years,  unless  such  property  shall  have 
passed  to  an  innocent  bona  fide  purchaser  for  value."  It  would  not  be  affected,  except 
as  against  an  innocent  purchaser.  |! 

Mr.  Thornton:  If  the  land  is  assessed  in  the  name  of  Jones,  when  it  it  owned  in 
fact  by  Smith,  and  continues  to  be  assessed  in  that  way,  vv'hat  would  be  Aie  effect? 

Mr.  Meredith:  I  do  not  see  that  there  would  be  any  assessment  there  at  all,  and 
therefore  there  would  be  no  claim. 

I  was  calling  the  attention  of  the  committee  to  the  fact  that  in  allowing  the  Legis- 
lature to  exercise  this  right,  it  has  been  shown  by  experience  how  it  will  exercise  it.  It 
will  exercise  it  as  a  political  matter.  It  has  exercised  it  as  a  political  matter.  It  has 
been  represented  to  the  Legislature  that  it  is  a  desirable  thing  that  we  should  wipe  out 
all  the  taxes,  and  about  1884  or  1885  they  did  wipe  out  all  the  taxes  up  to  a  certain  year. 
In  addition  to  that  for  the  first  time  in  1885  it  has  attached  this  proviso,  making  the 
period  of  limitation  five  years.  It  was  thought  that  would  be  a  popular  measure  all 
over  the  State.  You  must  recognize  that  when  these  acts  are  passed  they  are  passed 
not  merely  with  reference  to  the  consideration  as  to  whether  they  are  wise  measures, 
but  also  with  reference  to  the  question  as  to  what  will  be  their  practical  effect.  The 
effect  of  this  act  has  been  that  the  State  cannot  collect  that  upon  which  she  lives,  after 
five  years;  and  yet  individuals  do  not  have  the  same  protection,  on  a  bond,  for  instance, 
until  after  the  lapse  of  ten  years.  I  am  calling  your  attention  to  the  fact  that  this  right 
has  not  been  reasonably  exercised;  that  it  has  put  the  State  in  a  situation  of  embarrass- 
ment with  regard  to  her  taxes,  and  has  driven  her  to  the  passage  of  these  land-grabber 
bills.  It  was  found  that  the  five  years  were  passing  by  and  that  the  State  was  not 
enforcing  her  liens.  Then,  in  order  to  protect  herself,  she  passed  this  land-grabber 
act,  so  that  the  time  might  not  run  against  it.    I  say  that  this  power  has  been  unwisely 


DEBATES  OF  THE  C02s^STITUTI0XAL  COXVEXTIOX  OF  VIEGIXIA. 


2657 


exercised;  and  you  ought  not  to  leave  it  to  the  Legislature  to  exercise  the  same  power 
again.  You  ought  at  least  to  put  in  a  provision  here  saying  that  no  statute  of  limita- 
tions shall  be  for  a  less  period  than  twenty  years,  or  ten  years,  and  not  leave  it  to  the 
Legislature  to  do  as  it  has  done  in  the  past;  that  is,  put  the  State  of  Virginia,  the 
sovereign,  in  a  weaker  position  than  you  do  the  subject.  I  ^ay  no  man  can  even  suggest 
the  wisdom  of  that  idea. 

I  call  your  attention  to  another  thing,  and  that  is,  that  if  you  strike  this  out  and 
leave  to  the  Legislature  the  power  to  pass  a  statute  of  limitation  it  will  at  once  act  as 
an  encouragement  to  men  not  to  pay  their  taxes. 

Mr.  Braxton:  May  I  ask  the  gentleman  how  far  his  views  would  be  met  by  fixing 
a  minimum  period? 

Mr.  Meredith:  I  think  that  would  be  wiser;  but  I  do  not  think  there  ought  to  be 
any  statute  of  limitation  as  to  the  sovereignty.  The  common  law  principle  is  that 
there  should  not  be,  that  the  statute  of  limitations  never  runs  against  the  sovereign. 
When  you  come  to  the  question  of  taxes,  upon  which  the  sovereign  lives,  the  Legisla- 
ture has  exercised  this  power  in  such  a  way  as  to  put  the  State  in  a  situation  where 
she  shall  not  collect  debts  due  to  her  after  five  years  have  elapsed,  while  any  subject 
can  collect  upon  a  bond  until  ten  years  have  elapsed. 

By  putting  this  into  the  Constitution  v>'e  are  warning  the  people  that  the  Legislature 
shall  not  pass  any  statute  of  limitation,  and  that  all  persons  shall  pay  their  taxes,  and 
cannot  hope,  by  simply  not  paying  their  taxes,  to  be  released  from  their  just  burden 
in  support  of  the  State,  by  simply  waiting  for  the  Legislature  to  relieve  them  of  their 
just  burden  in  the  support  of  the  State  by  passing  an  act  of  release  from,  the  payment 
of  taxes. 

Mr.  Bouldin:  May  I  ask  my  friend  from  Richmond  if  the  result  he  desires  to 
secure  would  not  be  secured  by  the  increased  activity  that  would  be  necessary  on  the 
part  of  the  officers  of  the  government  to  collect  the  taxes,  if  they  had  a  reasonable 
period  of  time  within  which  alone  the  collection  could  be  enforced? 

The  necessity  that  caused  the  adoption  of  the  land-grabber  acts  referred  to  was 
the  custom  of  the  State  officials  of  purchasing  lands  delinquent  for  the  non-payment  of 
taxes  and  afterwards  taking  no  action  for  converting  the  lands  so  purchased  into  money 
and  paying  the  taxes.  It  has  been  the  habit  of  the  State  to  hold  these  lands  for  years 
and  permit  the  taxes  to  pile  up  from  year  to  year  without  any  actual  steps  being  taken 
by  the  authorities  to  sell  the  lands  and  pay  the  taxes. 

Mr.  Meredith:  Of  course  activity  will  tend  to  prevent  delinquency;  but  at  the 
same  time  if  you  are  going  to  hold  out  the  hope  to  a  man  that  by  waiting  a  certain 
period  of  time  he  is  going  to  be  released  from  the  payment  of  taxes,  he  is  going  to 
exercise  all  the  ingenuity  of  which  his  mind  is  capable  to  keep  from  paying  them.  It 
seems  to  me  that,  as  to  State  taxes,  we  ought  to  have  the  greatest  activity  in  the  efforts 
to  collect  them,  and  at  the  same  time  an  obligation  to  pay. 

Mr.  Bouldin:  That  brings  us  squarely  up  to  the  consideration  of  this  question: 
Would  not  a  five  years'  limitation  law  give  the  State  ample  time  within  which  to  collect 
all  her  taxes,  and  would  not  the  spirit  of  repose  on  which  our  statutes  of  limitations 
between  individuals  rest  make  it  wise  that  the  State  should  also  be  required  to  collect 
the  taxes  due  to  her  promptly,  and  not  permit  them  to  accumulate  indefinitely.  The 
great  hardship  sustained  by  the  delinquent  taxpayer  has  been  largely  due  to  this  accu- 
mulation of  taxes  which  has  resulted  from  the  policy  of  the  State  in  not  resorting  to 
prompt  and  efficient  methods  of  collecting  the  taxes  due  on  lands  purchased  by  her.  Is 
it  not  therefore  the  part  of  wisdom  to  modify  the  rule  that  no  time  runs  against  the 
sovereign  and  provide  for  a  reasonable  statute  of  limitation  that  v/ill  give  the  State  all 
needed  protection,  and  at  the  same  time  promote  the  interest  of  the  tax-payer,  as  con- 
templated by  the  amendment  of  the  gentleman  from  Pulaski. 

Mr.  Meredith:  I  think  not.  I  think  the  inactivity  is  owing  to  the  fact  that  proper 
laws  have  not  been  passed.    I  do  not  think  the  failure  to  collect  has  been  by  reason  of 


2658  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 

the  fact  that  there  has  been  no  statute  of  limitations.  There  has  been  a  statute  of 
limitations  since  1865;  and  yet  it  is  only  within  the  last  three  or  four  years  that  we  have 
passed  these  land-grabber  acts. 

Mr.  Bouldin:  Those  acts  were  passed  because  the  Commonwealth  had  been  in 
the  habit  of  buying  in  the  titles  of  delinquent  lands  and  feaving  the  lands  themselves 
in  the  possession  of  the  delinquent  taxpayer  to  breed  other  taxes — a  sale  in  form,  but  not 
in  fact.  By  requiring  the  State  to  be  prompt  in  collecting  her  taxes  the  public  interest 
of  all  the  citizens  which  should  be  the  object  of  the  State,  would  be  far  better  promoted 
than  by  permitting  her  to  sleep  on  her  rights  for  an  indefinite  period  of  time — until  the 
taxes  become  so  large  as  to  amount  almost  to  confiscation.  It  is  right  and  just  and 
sound  in  policy  that  the  State  should  be  limited  to  a  reasonable  period  within  which 
to  collect  her  taxes. 

Mr.  Meredith:  Here  is  a  statute  that  depends  upon  the  officers  scattered  all  over 
the  Commonwealth  for  its  support.  Some  are  good;  some  bad.  Some  attend  to  their 
duties  and  some  fail  to  attend  to  their  duties.  The  State  is  absolutely  dependent  upon 
her  officers  and  agents;  and  yet  you  say  that  she  shall  have  five  years'  time  in  which  to 
collect  taxes  due  her,  and  if  she  does  not,  the  statute  of  limitations  shall  run  against  her. 
On  the  other  hand  the  State  says  to  the  individual,  who  looks  after  his  own  personal 
private  interests  and  who  is  supposed  to  give  the  greatest  attention  to  them,  when  your 
bond  becomes  due  I  will  give  you  ten  years,  after  it  becomes  due,  in  which  to  collect  it. 

V/here  is  the  principle  upon  which  you  can  justify  such  a  difference  of  protection 
when  the  State  depends  upon  agents,  in  all  instances  she  does  not  select,  but  which  are 
selected  in  different  communities. 

Mr.  Bouldin:  If  the  limitations  of  ten  years  as  to  transactions  between  individuals 
is  wrong,  let  it  be  corrected,  but  do  not  on  that  account  give  the  State  the  right  to  sleep 
on  her  rights  indefinitely  and  then  proceed  to  enforce  them  in  the  harsh  method  pre- 
scribed for  the  collection  of  taxes.  The  great  mass  of  commercial  transactions  are 
evidenced  by  notes,  the  limitation  on  which  is  five  years,  the  same  that  should  be  applied 
to  the  State  in  the  collection  of  taxes.  The  State  has  ample  power  to  collect  all  of  her 
debts.  The  complete  machinery  of  collection  is  in  h^r  hands;  and,  although  collections 
are  made  by  agents  scattered  throughout  the  Commonwealth,  there  is  power  enough  in 
the  hands  of  the  State  to  require  each  one  to  pay  his  taxes  promptly  and  save  the  State 
from  loss. 

Mr.  Meredith:  Theoretically  there  is,  but  we  all  Imov/  from  practical  experience 
that  the  power  is  not  properly  exercised,  and  while  we  recognize  that  fact,  shall  we  say 
that  the  State  shall  lose  her  taxes  because  they  have  not  been  collected?  I  say  it  is  not 
justice  to  the  State,  and  that  she  ought  to  be  protected  with  respect  to  taxes. 

Mr.  William  A.  Anderson:  I  think  it  makes  very  little  difference  whether  this 
section  stays  in  or  goes  out.  I  do  not  know  how  many  land  titles  it  has  been  my  duty 
to  examine  during  my  practice,  but  I  have  examined  a  great  number  of  them,  and  in 
sections  of  the  State  where  delinquency  in  the  payment  of  taxes  is  of  exceedingly  fre- 
quent occurrence.  I  have  never  known  or  heard  of  a  case  in  which  the  State  had  lost 
by  reason  of  section  636  of  the  Code.  Why,  Mr.  Chairman,  the  possibility  of  the  State 
losing  its  lien  by  that  section  is  prevented  by  the  following  sections  of  that  chapter 
which  makes  it  the  duty  of  the  treasurer  to  sell  all  delinquent  lands,  and  if  the  lands 
are  not  bought  in  by  a  purchaser  for  a  sufficient  amount  to  pay  the  delinquent  taxes, 
they  are  bought  in  for  the  State  and  the  running  of  the  statute  of  limitations  is  stopped 
eo  instanti.  I  say  that  my  friend  is  fighting  an  ignis  fatuus  when  he  seeks  to  encum- 
ber the  Constitution  by  a  provision  of  this  sort.    It  is  absolutely  unnecessary  legislation. 

Mr.  Stuart:  I  would  like  to  ask  this  question.  Many  of  the  large  patents  are  not 
on  the  land  books,  and  never  have  been,  and  where  no  taxes  have  been  paid  and  it  is 
beyond  the  power  of  the  tax  gatherer  to  collect,  would  any  degree  of  activity  on  the  part 
of  the  collector  or  the  public  officer  avail  to  protect  the  right  of  the  State  to  delinquent 
taxes  on  such  land? 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVE\"TIOX  OE  VIEGIXIA. 


2659 


Mr.  ■William  A.  Anderson:  I  do  not  kno^  that  the  question  of  my  friend  is  perti- 
nent to  this  section.    This  section  refers  to  cases  where  the  taxes  are  delinquent. 

Mr.  R,  Vv'alton  Moore:  The  language  of  the  provision  is  that  '"  no  statute  of  limita- 
tions shall  run  against  any  claim  of  the  State  for  taxes  upon  any  property."  It  may 
have  been  reduced  to  a  lien  or  it  may  be  a  mere  inchoate  claim. 

Mr.  vrilliam  A.  Anderson:  Section  G36  of  the  Code  only  applies  to  taxes  which 
have  been  assessed.  This  proposed  section  of  the  Constitution  does  not  give  any  remedy 
for  the  evil  complained  of  by  my  friend  from  Russell  (Mr.  Stuart)  at  all.  The  Legis- 
lature has  undertaken  to  give  a  remedy  for  the  cases  referred  to  and  covered  by  the 
G_uestion  of  the  gentleman  from  Russell  TMr.  Stuart)  applying  to  lands  west  of  the 
Alleghany  mountains.  Our  present  law  requires  them  to  be  assessed  for  taxation,  and 
if  they  are  not  put  on  the  land  books  for  five  years  they  are  forfeited  to  the  Common- 
wealth. 

Mr.  Stuart:  I  would  like  to  have  you  explain  to  me  your  view  of  the  purport  of  the 
language  of  this  last  clause,  which  I  now  read:  Nor  shall  the  failure  to  assess  prop- 
erty for  taxation  defeat  a  subsequent  assessment  for  and  collection  of  taxes  for  any  pre- 
ceding year  or  years,  unless  such  property  shall  have  passed  to  an  innocent  bona  fide 
purchaser  for  value.'"' 

Mr.  William  A.  Anderson:  I  do  not  know  anything  in  the  present  law  to  prevent 
the  assessment  of  land  for  omitted  taxes.  I  have  known  land  to  be  again  and  again 
assessed  for  unpaid  taxes  where  the  land  owners  had  failed  to  put  them  on  the  land 
books. 

Mr.  Meredith:    For  how  many  years  back? 

]\Ir.  Y^'illiam  A.  Anderson:  I  think  it  was  only  for  five  years,  but  they  can  be 
assessed  and  should  be  assessed  for  all  omitted  years  back  to  1576. 

I  think  they  have  generally  only  gone  back  for  five  years.  I  think  they  ought  to 
go  back  to  the  time  when  the  last  act  of  release  took  eftect.  The  last  act  of  release  took 
effect  in  1876.  according  to  my  recollection. 

All  taxes  due  by  citizens  of  the  Commonwealth  upon  land  which  was  assessed  prior 
to  1S76  was  released.  My  friend  from  Pachmond  (Mr.  Meredith)  is  much  mistaken  in 
his  supposition  that  these  release  acts  were  political  measures.  Some  of  them  were 
passed  long  before  he  or  I  were  born,  and  as  far  back  as  and  before  1S31,  and  several  of 
them  have  been  passed  since.  I  have  never  known  of  a  case  where  the  Legislature  has 
passed  acts  giving  special  relief  in  regard  to  this  matter,  although  I  understand  there 
have  been  such  cases.  It  was  long  before  my  acquaintance  with  the  legislation  of  this 
State  if  such  special  laws  were  passed.  There  have  been  general  statutes,  statutes  of 
repose,  passed  by  the  wisest  men  that  Virginia  has  produced,  the  men  who  have  made 
our  government  and  given  to  our  government  all  the  merit  it  possesses,  the  men  who 
framed  the  Constitution  of  1S29-30,  and  men  like  them. 

Z\Ir.  Hamilton:  I  do  not  understand  this  section  to  prohibit  the  Legislature  from 
passing  a  general  act  permitting  a  lien  for  taxes. 

Mr.  William  A.  Anderson:  I  do  not  understand  it  has  that  effect  at  all.  The  legis- 
lative article  prevents  special  acts  of  relief:  but  this  does  not  interfere  with  that  pro- 
wlsion.  I  say  that  these  general  acts  of  relief  were  wise  measures,  because  such  con- 
fusion had  arisen  in  reference  to  tax  titles  in  this  State  as  to  the  amount  of  taxes  due, 
that  it  was  necessary  to  give  relief  by  some  such  measure;  and  the  Legislature  has 
repeatedly,  in  the  course  of  time,  fixed  a  period  beyond  which  the  State  would  not 
assert  her  claim  for  taxes,  for  the  purpose  of  quieting  titles  to  lands.  It  is  to  the  great 
interest  of  the  Commonwealth  that  the  ready  transfer  of  real  estate  should  not  be 
interfered  with  by  any  unascertainable  lien  upon  it. 

^Ir.  Thorn:  Does  my  friend  think  that  such  an  act  as  this  would  be  possible,  under 
the  joint  operation  of  this  clause  and  the  clause  in  the  legislative  report,  which  forbids 
tie  release  of  any  claim  on  the  part  of  the  State. 

:^Ir.  William  A.  Anderson:  I  do  not  think  the  Legislature  could  remit  taxes  by 
special  act. 


2660  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Thorn:  Could  it  be  done  by  a  general  act,  under  the  joint  operation  of  these 
two  clauses? 

Mr.  William  A.  Anderson:    I  think  it  could. 

Mr.  Thorn:  How  could  it  be  done,  if  the  legislative  article  says  that  no  claim 
against  the  State  shall  be  released  by  the  Legislature? 

Mr.  R.  Walton  Moore:  That  is  in  the  class  of  cases  where  the  Legislature  is  for- 
bidden to  legislate  specially.  There  is  no  prohibition  against  general  legislation  of  that 
character. 

Mr.  William  A.  Anderson:  It  seems  to  me,  Mr.  Chairman,  that  it  is  wise  to  leave 
this  power  with  the  Legislature.  They  have  never  abused  it.  I  remember  three  acts 
that  have  been  passed  by  the  General  Assembly  of  Virginia  in  this  regard  and  they  were 
passed  for  the  purpose  of  giving  repose,  of  quieting  titles,  making  it  possible  to  buy 
these  wild  mountain  lands  and  of  being  certain  of  getting  a  good  title  so  that  they  could 
be  put  upon  the  land  books  and  become  a  source  of  revenue  to  the  Commonwealth. 

I  say,  however,  that  I  do  not  think  it  makes  much  difference  whether  this  section 
stays  in  or  goes  out,  except  that  it  is  useless  to  encumber  the  Constitution  with  pro- 
visions of  this  kind. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Pulaski  (Mr.  Wysor). 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes  21,  noes  35. 

Mr.  Turnbull:  I  now  offer  an  amendment  which  I  send  to  the  clerk's  desk  and  ask 
that  it  be  read. 

Amend  Section  7  by  adding  at  the  end  of  the  section  the  following:  "In  which 
latter  case  the  tax  so  fa,iled  to  be  assessed  may  be  assessed  against  such  bona  fide 
purchaser  from  the  date  of  his  purchase." 

Mr.  Turnbull:  I  do  not  know  v/hether  the  committee  will  understand  the  purpose 
oi  this  amendment.  The  object  of  the  latter  part  of  this  section,  as  I  understand  it,  is 
to  prevent  taxes  from  being  put  upon  the  bona  fide  purchaser  of  a  tract  of  land,  which 
has  not  been  included  in  the  assessment  book.  I  see  no  reason  in  the  world  why,  if  a 
bona  fide  purchaser  buys  a  piece  of  land  he  should  not  pay  the  taxes  on  it  from  the 
time  he  purchases  it. 

Mr.  R.  Walton  Moore:  Mr.  Chairman,  the  purpose  sought  to  be  accomplished  by 
the  amendment  presented  by  the  gentleman  from  Brunswick  (Mr.  Turnbull)  is 
approved  by  the  Committee.  I  think  the  Committee  will  accept  the  amendment;  bui 
'^e  would  like  to  have  an  opportunity  to  examine  the  language  a  little  more  carefully. 
We  will  accept  the  amendment  with  the  understanding  that  we  may  recur  to  the  matter 
later  on. 

The  amendment  was  adopted. 

Mr.  Barbour:    I  now  move  to  strike  out  Section  7. 

The  amendment  was  rejected,  there  being  on  a  division  ayes  20,  noes  34. 
Sections  8  and  9  were  adopted. 

On  motion  of  I^r.  Fairfax  the  committee  rose  and  the  President  resumed  the  chair. 
On  motion  of  Mr.  Lindsay  the  Convention  took  a  recess  until  4  o'clock,  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
chair. 

TAXATION  AND  FINANCE. 

On  motion  of  Mr.  Fairfax  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Taxation 
and  Finance,  Mr.  Ayers  in  the  chair. 

The  Chairman:    Are  there  any  further  amendments  to  Section  9? 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


26G1 


Mr.  Eggleston:  It  seems  to  me  that  the  word  "nov,-"  in  the  sentence  "now  authorized 
by  law"  should  not  be  embodied  as  a  part  of  this  Constitution.  It  makes  the  statute 
law  in  regard  to  taxes  a  part  of  the  Constitution  of  the  State. 

I  do  not  think  that  ought  to  be  done.  If  the  Legisature  is  allowed  any  latitude  in 
regard  to  taxes  on  any  kind  of  property  I  do  not  see  why  they  should  be  prevented  from 
■exercising  discretion  in  regard  to  all  classes  of  property.  '■>7ow  authorized  by  law" 
:fixes  it  and  will  prevent  the  Legislature  from  making  a  change  in  the  system  of  taxa- 
tion on  this  particular  kind  of  property.  That  is  not  true  as  to  other  property  in  the 
State  and  I  can  see  no  reason  for  it.  It  seems  to  me  that  we  are  doing  a  dangerous 
thing  when  we  take  up  perhaps  fifteen  of  twenty  sections  of  the  Code  and  incorporate 
them  into  our  Constitution  bodily.  Not  one  in  ten  of  us  knows  exactly  vrhat  those  pro- 
visions are. 

I  move  to  strike  out  the  word  "now"  Section  9,  line  11. 

I\Ir.  Boaz:  I  would  suggest  that  perhaps  the  difhculty  is  answered  in  Section  14, 
which  provides  that  this  system  of  taxation  shall  continue  for  ten  years  and  after  that 
may  be  modified  as  the  Legislature  sees  fit. 

]\Ir.  Eggleston:  I  have  noticed  the  provisions  of  that  section,  but  I  do  not  see  any 
reason  for  the  use  of  this  word  "now"  nor  can  I  see  that  there  is  any  reason  why,  even 
for  ten  years,  there  should  be  a  difference  in  the  different  classes  of  property  as  to  taxa- 
tion. I  think  they  ought  all  to  be  considered  alike  and  treated  the  same.  Why  the 
tiands  of  the  Legislature  in  regard  to  this  particular  kind  of  class  of  legislation  should 
be  tied,  even  for  ten  years,  is  something  beyond  me.    I  cannot  see  the  reason  for  it. 

3,Ir.  Meredith:  I  ask  the  attention  of  the  committee  while  I  make  some  explana- 
tion of  this  matter.  It  will  take  some  time,  as  this  provision  was  framed  after  very 
grave  and  very  long  consideration  by  the  committee.  Objection  is  made  to  the  use  of 
the  word  "now"  in  line  3,  and  to  the  use  of  the  word  "now"  in  line  11.  In  line  3  it 
says  that  the  State  Corporation  Commission  shall  annually  ascertain  and  assess,  at  the 
time  hereafter  mentioned  and  in  the  manner  "now"  required  by  law  the  value  of  the 
roadbed  and  other  real  estate,  rolling  stock  and  other  tangible  personal  property  in  this 
State  of  each  railway  corporation.  In  the  first  place.  ]\Ir.  Chairman,  the  law  referred  to 
is  not  in  the  Code.  It  is  one  of  the  taxation  or  assessment  laws  of  the  State.  It 
simply  defines  the  manner  in  which  ra'lroad  property  shall  be  taxed  and  the  report 
which  shall  be  made  to  the  Board  of  Public  Works  as  to  their  mileage,  the  value  of 
their  machine  shops,  the  value  of  their  cars  and  of  their  other  personal  property.  It 
then  requires  that  the  Board  of  Public  Works  shall  assess  the  value  of  the  roadbed. 
In  other  words  the  railroad  is  treated  as  a  unit,  and  the  Board  of  Public  Works  fixes  its 
value  at  $5,000  or  $10,000  or  $15,000  per  mile,  as  the  case  may  be,  and  that  is  the  basis 
of  the  State  assessment  for  State  taxes.  Of  course  they  also  assess  all  tangible  personal 
property.  Then  the  statute  goes  on  to  provide  that  local  taxation  shall  be  upon  the 
value  so  assessed,  according  to  the  amount  of  mileage  in  each  county,  school  district, 
citj'  or  town.  This  statute  simply  fixes  the  manner  of  assessing  the  property  of  the 
railroads.  It  is  almost  universally  held,  that  it  would  not  be  proper  to  allow  the  rail- 
road to  be  assessed  by  the  local  authorities  upon  one  piece  in  one  county  and  by  dif- 
ferent local  authorities-  upon  another  piece  in  another  county;  that  such  a  method  of 
assessment  would  be  unfair  to  the  railroad  and  unfair  to  the  different  sections  of  the 
State  to  do  so.  Therefore  it  is  treated  as  a  unit  and  the  Board  of  Public  Works  under 
this  statute,  simply  fixes  the  value  of  the  property  and  then  the  State  tax.  whatever 
that  may  be,  is  held  upon  it,  and  the  tax  of  any  particular  city  or  county,  whatever  it 
may  be,  is  laid  upon  the  portion  in  that  city  or  county.  This  section  does  not  fix  the 
value  of  the  property.  It  only  prescribes  the  method  of  ascertaining  the  value.  The 
Board  of  Public  Works  could  to-morrow  or  a  year  from  now.  increase  the  value  of  the 
real  estate  and  of  the  personal  property.  In  addition  to  that  the  State  can  raise  or 
lower  her  tax  rate,  and  accordingly  as  she  raises  or  lowers  her  tax  rate  the  railroad 
property  is  affected.    It  may  be  affected  in  two  ways,  first,  by  the  assessment  to  be 


2662 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


put  upon  it  by  the  State  Corporation  Commission,  and  secondly,  by  the  rate  of  taxation 
imposed  by  the  State  or  by  local  authority. 

So  that  all  that  we  do  by  this  reference  here  is  to  get  at  the  manner  of  assessment 
and  say  that  it  shall  be  assessed  in  the  manner  in  which  it  is  "now"  assessed;  and  that 
the  State  Corporation  Commission,  instead  of  the  Board  of  Public  Works,  shall  subdivide 
the  aggregate  value  of  the  roadbed  according  to  the  mileage  in  each  district,  county, 
etc.,  in  the  Commonwealth.  That  is  all  the  statute  or  this  section  does,  instead  of 
going  through  the  method  of  saying,  in  detail,  what  shall  be  the  way  in  which  it  shall 
be  assessed,  we  adopted  the  short,  simple  method  of  a  reference  to  the  statute  by  say- 
ing "  in  the  manner  now  required  by  law."  This  statute  refers  simply  to  the  method  of 
assessment  and  not  to  the  value  of  the  property  or  the  rate  of  taxation  thereon.  The 
hands  of  the  Legislature  are  perfectly  free  to  deal  with  the  question  of  the  value  of 
property  or  the  rate  of  taxation,  just  as  it  is  now.  The  local  authorities  are  free  as  to 
the  rates  of  taxation  just  as  they  are  now.  All  that  is  done  here  is  to  say  that  this 
shall  be  the  method  of  ascertaining  how  this  property  shall  be  assessed  and  how  this 
unit  shall  be  subdivided  for  local  taxation  purposes. 

You  can  see  that  it  is  not  tying  the  hands  of  the  Legislature  except  as  to  the 
method  of  ascertaining  value.  Your  committee,  after  long  consideration,  and  after  very 
earnest  study  of  this  subject,  and  after  going  to  considerable  expense  in  bringing  an  ex- 
pert here  from  Harrisburg,  Pa.,  for  the  purpose  of  giving  them  assistance,  came  to  a 
conclusion  as  to  what  they  thought  was  the  best  way  to  tax  railroad  property.  They 
came  to  the  conclusion  that  the  proper  system  of  taxing  railroad  property  is  according 
to  the  Connecticut  plan;  that  is  to  say,  to  take  the  value  of  the  franchise  to  be  worth, 
the  market  value  of  the  capital  stock  plus  the  market  value  of  the  bonds,  not  above  par. 
That,  we  thought,  was  tno  proper  way  to  fix  the  value  of  the  franchise.  We  had  in  our 
plan  some  details  as  to  how  that  should  be  worked  out.  We  divided  it  so  as  to  let  the 
State  tax  two-thirds  of  such  aggregate  amount,  and  the  counties  and  cities  tax  one-third 
of  it,  accordmg  to  the  mileage  rate  in  each  particular  county  or  city.  We  adopted  that 
plan  because  the  present  value  of  the  railroad  properties  of  this  State  is  just  above  one- 
third  of  what  would  be  the  value  of  the  franchises  of  these  same  roads  if  assessed  under 
the  Connecticut  plan;  and  therefore  the  cities  and  counties  of  the  State  v/ould  not  lose 
anything  by  taxing  one-third  of  that  aggregate  amount.  The  value  of  one-third  of  the 
franchises,  on  the  Connecticut  plan,  would  give  them  about  the  same  amount  of  prop- 
erty to  tax  as  they  have  now  under  the  present  plan,  when  they  tax  the  real  estate  and 
the  tangible  personal  property.  This  matter  was  fully  discussed  before  the  committee. 
We  then  determined  that,  as  it  was  a  very  important  matter,  and  bore  somewhat 
grievously  upon  the  railroads,  because  it  would  increase  their  taxes  to  about  $400,000  a 
year,  and  that  we  would  ask  the  railroads  to  come  and  discuss  this  matter  before  us; 
and  they  did  so.  Some  of  you  gentlemen  are  aware  that  we  had  a  meeting  in  the  court- 
room of  the  Supreme  Court,  where  several  of  the  railroad  presidents  came  and  dis- 
cussed our  plan.  They  said:  The  State  has  been  taxing  us  as  provided  in  the  statute. 
We  are  not  denying  that  it  is  a  proper  thing  to  increase  our  taxes,  but  we  do  say  that 
your  proposed  method  of  taxing  us  is  such  a  large  increase  from  what  you  are  now 
taxing  us,  that  we  earnestly  urge  you  will  not  impose  it  upon  us.  They  said:  You 
must  recall  the  fact  that  most  of  tnese  railroads  have  failed  once,  twice,  or  three  times, 
and  that  at  each  reorganization  there  has  been  carried  over  a  large  amount  of  stock 
held  by  the  owners  of  the  property  previous  to  such  failure  and  reorganization.  Thai 
has  been  carried  on  two  or  three  times,  and  has  accumulated  the  stock  according  to  the 
number  of  receiverships  and  reorganizations,  until  now  there  is  carried  by  the  roads  in 
this  State  such  a  large  amount  of  stock  that,  if  you  were  to  attempt  to  fix  the  value  of 
the  franchises  oy  the  value  of  the  stock,  it  would  be  far  in  excess  of  the  real  value,  be- 
cause the  accumulation  of  stock,  by  reason  of  these  failures  and  reorganizations  and  the 
issuing  of  preferred  and  common  stock,  has  been  so  greatly  increased.  They  made  that 
plea,  and  they  suggested  this  as  a  simple  plan.    They  said:    We  will  say  this  to  you,  :f 


DEBATES  OF  THE  COXSTITUTIOX AL  COXVEXTIOX  OF  VIRGIXIA. 


2663 


you  determine  to  put  anything  into  the  Constitution,  this,  we  submit,  would  be  a  fair 
basis  of  taxation.  You  will  get  a  larger  revenue  from  it,  and,  at  the  same  time,  it  will 
not  be  such  an  increase  to  bear  too  harshly  upon  us.  They  then  suggested  that  we 
should  continue  the  present  method  of  taxation  upon  the  roadbed,  the  other  real  estate 
and  the  tangible  personal  property,  and  that,  in  order  to  get  an  increased  revenue,  that 
we  might  add  a  seven  mill  tax  upon  the  gross  earnings  as  a  franchise  tax.  Your  com- 
mittee considered  the  matter,  and  some  of  us  still  thought  that  we  ought  to  adopt  the 
Connecticut  plan;  but  after  due  consideration  we  came  to  the  conclusion  that,  as  that 
would,  perhaps,  bear  pretty  harshly  upon  the  railroads,  and,  as  we  were  looking  for- 
ward to  more  control  over  the  rates  through  the  corporation  commission,  it  would,  per- 
haps, be  wiser  not  to  be  too  hard  in  the  beginning,  but  to  be  fair  and  to  take  a  reason- 
able  step,  so  as  to  get  what  would  be  fair  compensation  at  present,  considering  the  con- 
ditions surrounding  those  companies.  Therefore  we  said  we  will*  agree  to  tax  you  under 
this  system  as  suggested  by  you;  to  tax  your  real  estate  and  tangible  personal  property, 
and  other  real  estate  and  tangible  personal  property',  as  other  real  estate  and  tangible 
personal  property  is  taxed;  and  in  addition  we  will  lay  upon  you  a  franchise  tax  of  1 
per  cent,  of  your  gross  earnings  instead  of  7  mills.  That  is  the  scheme  proposed  here, 
to  continue  for  ten  years.  Then  the  question  came  up  as  to  whether  it  should  be  for- 
ever or  whether  the  length  of  time  for  which  it  was  to  continue  should  be  fixed.  It  was 
desired  by  the  roads  that  we  should  fix  it  for  ten  years.  They  said,  if  this  is  a  fair 
compensation  to  you,  as  we  have  got  to  meet  this  burden,  we  ask  that  you  give  us  a 
reasonable  time  in  which  to  meet  it,  so  that  if  you  hereafter  desire  to  change  it  and 
adopt  the  Connecticut  plan,  we  Y»-ill  have  the  chance  to  get  the  benefit  of  increased 
prosperity.  In  addition  to  that,  it  will  keep  us  out  of  politics,  more  or  less,  as  w^e  will 
not  have  to  be  constantly  watching  the  question  of  taxation  before  the  Legislature  if 
we  know  that  for  ten  years  we  will  not  have  any  change. 

But  understand  that  this  does  not  affect  and  does  not  limit  the  right  of  the  State 
Corporation  Commission  to  increase  the  value  of  this  real  estate  and  personal  property. 
Nor  does  it  bind  the  hands  of  the  Legislature  as  to  increasing  the  rate  of  taxation  upo)i 
real  estate  and  personal  property  of  these  railroads.  It  is  fair  for  you  to  consider  that 
under  the  present  system  of  taxation  the  method  of  fixing  the  value  of  roadbeds  is  very 
uncertain.  It  is  almost  impossible  to  see  hovr  the  Board  of  Public  Works  can  ascertain 
that  one  road  is  worth  $10,000  a  mile  and  another  $15,000  a  mile.  They  claim  that 
while  they  have  not  been  imposing  a  franchise  tax  upon  the  railroad  in  ascertaining  the 
value  of  their  property,  yet  that  that  subject  has  entered  into  the  ascertainment  of 
value.  But  we  do  not  think  so.  We  feel  very  confident  that  when  the  State  Corpora- 
tion Commission  comes  to  assess  the  values  of  these  roadbeds,  it  will  find  that  there  has 
not  been  a  dollar  assessed  by  reason  of  the  value  of  the  franchise.  It  will  find  that  the 
value  of  $10,000  a  mile,  or  whatever  it  may  be,  which  has  been  laid  on  such  property, 
exists  to-day  just  as  it  did  twenty  years  ago,  althought  the  railroads  have  gone  from 
deficits  and  bankruptcy  up  to  handsome  net  earnings. 

Considering  all  these  matters,  taking  into  consideration  what  we  would  get,  and 
at  the  same  time,  the  change  of  circumstances  that  might  come  to  these  roads,  we  agreed 
to  this  method  of  finding  out  the  value  of  the  real  estate  and  tangible  personal  property. 
We  recognize  that  that  would  be  a  reasonable  method  of  ascertaining  the  value  of  such 
properties,  and  recommend  that  this  method  of  ascertaining  such  valuation  should  re- 
main in  force  for  ten  years.  The  value  of  the  property,  and  the  rate  of  taxation  is  not 
affected  by  this  section  at  all.  This  provison  simply  provides  for  ascertaining  the  value. 
If  you  should  pass  an  ordinance  to-morrow  saying  that  the  rate  of  taxation  on  real  estate 
and  personal  property  should  go  down  to  three  mills,  instead  of  being  four  mills,  they 
would  get  the  benefit  of  that  reduction.  If  you  should  say  to-morrow  that  the  rate 
should  be  five  mills,  they  would  feel  the  increased  burden.  I  want  it  to  be  understood 
that  we  have  done  nothing  in  this  section  except  to  say  that  this  method  of  ascertaining 
the  value  of  this  railroad,  as  a  unit,  for  State  taxation,  and  the  method  of  subdividing 


2664  ■  DEBATES -OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIPtGINIA. 

for  local  taxation.  I  need  not  say  it  Avould  be  extremely;  inconvenient  and  cumbersome 
to  put  all  of  the  long  statute  here  referred  to  into  the  Constitution.  The  act  has  been 
in  force  since  1882  or  1883,  and  it  has  worked  well.  I  hope  it  may  be  the  pleasure  of 
the  committee  not  to  adopt  the  amendment. 

Mr.  R.  Walton  Moore:  May  I  suggest  to  you  here,  in  response  to  the  remark  of  the 
gentleman  from  Charlotte  (Mr.  Eggleston),  that  really  we  undertake  to  read  very  little 
of  this  statute  into  the  Constitution.  Practically  all  that  we  read  is  the  provision  that 
the  Board  of  Public  works — which  is  now  changed  to  the  Corporation  Commission — shall 
put  a  value  upon  this  property. 

Mr.  Meredith:  The  object  is  to  prevent  putting  in  here  the  details  of  this  statute. 
The  whole  object  of  that  statute  is  to  ascertain  the  values.  If  I  had  a  copy  of  the  statute 
here  I  could  readily  satisfy  you  that  the  whole  effect  of  the  statute  is  to  show  how  the 
value  of  the  property  shall  be  ascertained. 

Mr.  Barbour:  Mr.  Chairman,  it  seems  to  me  that  this  language  should  be  stricken 
out.  The  gentleman  from  Ptichmond  (Mr.  Meredith)  says  that  they  do  not  even  know 
how  this  Board  of  Public  Works  get  at  their  present  assessment.  Notwithstanding  that 
they  are  putting  requirements  in  here  that  they  shall  continue  in  the  manner  now  pre- 
scribed by  law,  when  they  do  not  know  what  that  manner  is.  They  are  actually  asking 
us  to  put  in  the  Constitution  a  thing  that  we  do  not  know,  and  that  they  do  not  know 
themselves  and  that  they  say  they  do  not  know. 

Mr.  Meredith:  Permit  me  to  say  that  I  have  never  stated  that  the  law  says  how 
they  shall  get  at  the  value.  The  law  says  that  they  shall  ascertain  the  value  of 
this  property  as  a  unit  and  they  shall  sub-divide  it.  Therefore,  by  saying  "as  now 
required  by  law"  we  simply  say  that  they  shall  ascertain  the  value  in  a  manner  required 
by  law,  that  is  that  they  shall  treat  it  as  a  unit  and  then  sub-divide  it  according  to 
locality.  If -this  State  commission  sees  fit  to  put  that  valuation  at  $20,000  a  mile,  where 
it  has  been  $10,000  or  make  it  $10,000  where  it  has  been  $5,000,  you  could  not  restrain 
them.  You  have  got  to  trust  somebody  as  your  assessor.  The  manner  "now  required 
by  law"  simply  means  that  it  is  to  be  treated  as  a  unit  and  then  be  sub-divided  after- 
wards, as  provided  in  the  statute  referred  to. 

Mr.  Barbour:  If  that  is  all  you  want  let  us  put  it  into  this  article  so  that  we  need 
not  incorporate  a  lot  of  statutes  into  the  Constitution,  when  none  of  us  know  what 
they  are.  They  come  here  with  a  report  and,  time  after  time,  they  have  whole  sec- 
tions and  whole  chapters  of  statutes  to  be  incorporated  or  read  into  it,  merely  by  a 
reference  of  this  kind.  If  the  provision  the  gentleman  from  Richmond  mentions  is  the 
only  thing  they  want  in  here  it  will  not  take  much  time  to  put  it  in.  I  would  have  no 
objection  to  that.  I  think  when  a  committee  reports  a  section  to  go  into  the  Con- 
stition  they  ought  to  put  it  in  such  shape  that  we  know  what  we  are  voting  for. 

Mr.  Meredith:  I  will  obtain  the  statute  and  read  it  for  the  benefit  of  the  com- 
mittee if  it  is  desired.  We  thought  everybody  knew  pretty  well  how  the  railroads  are 
taxed. 

Mr.  R.  Walton  Moore:  May  I  say  that  this  is  not  in  fact  a  very  elaborate  statute, 
but  that  it  is  a  comparatively  brief  statute  which  provides  for  the  assessment  of  the 
visible  property  of  railroad  companies.  It  has  been  in  force  for  a  long  time  and  has 
been  frequently  before  the  courts.  In  substance,  so  far  as  this  particular  point  we  are 
upon  is  concerned,  it  provides  that  a  certain  tribunal,  to-wit,  the  Board  of  Public  W^orks 
shall  assess  at  its  value  the  visible  property.  We  are  now  substituting  the  State  Cor- 
poration Commission  instead  of  the  Board  of  Public  Works.  I  submit  that  there  is  no 
good  reason  for  elaborating  the  statute  any  further  than  we  have  done  in  this  section. 
The  gentleman  will  agree  with  me,  I  believe,  when  he  comes  to  make  an  examination 
of  the  statute,  that  no  good  purpose  would  be  served  by  going  more  into  detail.  When 
he  looks  at  Section  12  of  this  report  he  will  find  that  the  State  Corporation  Commission 
is  to  assess  the  value  of  the  property.  He  will  find  that  we  have  provided  what  kind 
of  report  the  railroad  and  canal  corporations  shall  make  to  the  State  Corporation  Com- 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA. 


2665 


mission.  The  commission,  however,  can  go  outside  and  get  other  information  upon 
which  this  assessment  shall  be  made.  Then,  when  he  reaches  Section  13,  he  will  find 
that  we  have  carefully  provided  for  an  appeal,  in  order  to  keep  within  the  limitations 
of  the  fourteenth  amendment  of  the  Federal  Constitution.  I  know  my  friend  wants  to 
be  fair,  and  I  can  say  to  him  that  I  think  a  slight  examination  of  the  statute  will  satisfy 
him  that  the  position  of  the  committee  is  a  reasonable  one;  that  it  has  not  done  any 
extraordinary  thing,  which  can  justly  subject  it  to  the  criticisms  that  have  been  offered. 

Mr.  Barbour:  The  gentleman  from  Richmond  (Mr.  Meredith)  and  the  gentleman 
from  Fairfax  (Mr.  Moore)  give  different  reasons  for  not  inserting  this  statute.  One 
says  it  is  so  long  it  ought  not  to  be  inserted,  and  the  other  says  it  is  so  short  that  it 
does  not  make  any  difference.  I  do  not  see  why  it  is  that  we  want  to  tie  the  hands  of 
the  Legislature  so  that  they  may  not  add  to  these  requirements  or  take  from  these 
requirements.  As  I  understand  it  this  does  not  effect  the  principle  that  this  property 
is  to  be  assessed  at  the  same  rate  that  other  property  in  the  State  is  assessed.  The 
only  way  the  Legislature  would  have  control  over  the  valuation  of  this  property  at  all 
would  be  for  them  to  prescribe  the  means  and  mode  of  assessing  the  values.  If  the 
Legislature  is  to  have  no  control  over  that,  then  this  commission  is  independent  of  the 
Legislature,  and  the  Legislature  can  control  it  in  no  way. 

Mr.  R.  Walton  Moore:  I  will  say  to  the  gentleman  that  the  commission  is  inde- 
pendent just  as  it  is  independent  in  its  rate-making  power,  and  there  is  an  appeal  if 
it  exceeds  the  power  conferred  upon  it. 

Mr.  Barbour:  There  is  an  appeal  if  they  put  the  rate  of  taxation  too  high;  but  I 
do  not  see  that  there  is  any  appeal  if  they  put  it  too  low.  The  representatives  of  the 
people  are  entitled  to  some  control  over  this  matter.  So  far  as  the  rate-making  power 
is  concerned,  the  right  of  appeal  is  preserved;  but  in  this  provision  an  appeal  is  granted 
only  to  the  company.  It  seems  to  me  that  the  reasons  assigned  for  this  provision,  and 
for  keeping  it  up  for  ten  years,  are  not  satisfactory.  They  say  that  the  railroad  com- 
panies have  not  been  paying  as  much  taxes  as  they  ought  to  pay,  and  that  it  would  be 
a  hardship  to  make  them  pay  as  much  as  they  ought  to  for  ten  years,  although  the 
people  of  Virginia  have  got  to  pay  as  much  as  they  ought  to  pay  all  along.  It  seems 
to  me  they  ought  to  pay  all  along.  It  seems  to  me  they  ought  to  be  satisfied  with  not 
having  had  to  pay  as  much  as  they  ought  to  up  to  the  present  time.  I  see  no  necessity 
for  giving  them  this  additional  ten  years  within  which  to  make  enough  money  to  enable 
them  to  pay  their  proper  share  of  the  taxes.  I  dislike  to  be  put  in  the  position  of 
criticising  this  committee  or  its  report,  because  I  sympathize  with  the  object  they  are 
striving  to  attain.  I  believe  they  are  trying  to  accomplish  the  same  object  I  am;  but 
it  certainly  does  seem  to  me  that  they  have  made  a  very  serious  mistake  by  introducing 
these  provisfons,  and  by  putting  these  statutes  into  the  Constitution.  It  puts  us  in  the 
position  of  buying  a  pig  in  a  poke.  We  really  do  not  know  what  we  are  voting  for,  or 
-  voting  against. 

Mr.  Meredith:  This  act  provides  that  every  railroad  and  canal  company  of  this 
State  not  exempted  from  taxation  by  virtue  of  its  charter,  and  every  railroad  and  canal 
company  incorporated  under  the  laws  of  any  other  State,  doing  business  in  this  State, 
shall  report  annually  on  the  first  day  of  June  to  the  Auditor  of  Public  Accounts,  all  of 
its  real  and  personal  property  of  every  description,  as  of  the  first  day  of  February  of 
each  year,  showing  particularly  in  what  county  or  corporation  the  principal  office  or 
agency  of  such  company  is  located  in  this  State,  and  in  what  county  or  corporation  said 
corporation  is  located,  and  also  shov/ing  what  part  of  such  property  is  located  in  each 
school  district  of  such  county  and  classifying  the  same  under  the  following  heads: 

First.    Roadway  and  track  or  canal  bed. 

Second.  Depots,  depot  grounds  and  lots,  station  buildings  and  fixtures  and  machine 
shops. 

Third.    Real  estate  not  included  in  other  classes. 

Fourth.    Rolling  stock,  including  passengers,  freight,  cattle  or  stock,  baggage,  mail> 
express  cars,  &c.,  &c. 
16S— Const.  Deb. 


2666 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Fifth.  Stores. 

Sixth.    Telegraph  lines. 
^  Seventh.    Stocks,  bonds  and  other  evidences  of  debt  of  other  corporations  and 
individuals  and  firms  held  by  the  company. 

Eight.  Stocks,  bond  and  other  evidences  of  debt  of  any  person  or  corporation 
belonging  to  any  such  company,  chartered  in  this  State,  in  excess  of  its  indebtedness. 

Ninth.  All  other  personal  property  of  such  company  not  enumerated  in  either  of 
the  foregoing  heads,  which  would  be  taxable  under  this  act  if  the  same  belonged  to  an 
individual. 

That  is  the  report  they  are  to  make.  We  want  that  report  made  to  this  State  Cor- 
poration Commission.  Then  the  act  goes  on  and  provides  that  they  shall  report  their 
gross  net  receipts  and  that  the  report  shall  be  verified  by  the  oath  of  the  president  or 
other  proper  officer  and  that  upon  the  receipt  of  the  report  it  shall  be  the  duty  of  the 
Auditor  of  Public  Accounts  to  lay  the  same  before  the  Board  of  Public  Works,  who  shall, 
after  thirty  days'  notice  previously  given  to  the  president,  treasurer,  or  other  proper 
officers  of  such  company,  proceed  to  ascertain  and  assess  the  value  of  the  property  as 
reported  upon  the  best  and  most  reliable  information  that  may  be  procured;  and  to  this 
end  shall  be  authorized  and  empowered  to  send  for  persons  and  papers  should  it  be 
deemed  necessary.  It  then  provides  that  a  tax  shall  be  at  once  levied  on  such  value  at 
the  annual  rate  levied  upon  the  value  of  other  property  for  the  year. 

It  then  provides  that  it  shall  be  the  duty  of  the  secretary  of  the  board  to  furnish  to 
counsel  of  every  corporation  and  to  the  board  of  supervisors  of  every  county  whereia 
any  property  belonging  to  such  company  is  situated  a  certified  copy  of  the  assessment 
of  taxes  made  by  the  Board  of  Public  Works  of  such  company's  property,  which  shall 
definitely  show  the  character  of  the  property,  its  value  and  location  for  purposes  of 
taxation  in  each  county,  corporation  and  school  district,  so  that  county,  corporation  and 
school  district  taxes  may  be  levied  upon  the  same:  Provided,  however,  that  it  shall  be 
the  duty  of  the  county  superintendent  of  the  schools  in  each  county  in  which  a  railroad 
is  located  and  operates  to  furnish,  on  or  before  the  first  day  of  May  in  each  year  such 
railroad  company  or  companies  the  boundaries  of  each  school  district  through  or  in 
which  any  part  of  such  railroad  or  other  railroad  property  is  situated. 

So  you  see  it  is  just  as  I  told  you.  They  have  to  ascertain  the  value  of  this  roadbed 
as  an  entirety  and  then  subdivide  it. 

Mr.  Eggleston:  If  I  understand  the  gentleman  from  Richmond,  this  method  was 
adopted  because  it  was  thought  by  the  committee  that,  under  the  present  system  of 
valuation,  these  railroad  companies  were  not  paying  their  share  of  the  taxes.  If  this 
provision  is  adopted  for  the  next  ten  years,  then  one  per  cent,  of  the  gross  earnings  will 
be  collected  from  them,  and  it  goes  into  the  State  treasury.  Their  property  in  this 
State  must  bear  its  proportion  of  the  State  and  county  taxes.  The  provision  made  here 
equalizes  the  taxes  as  far  as  the  State  is  concerned,  but  makes  no  provision  for  tli3 
equalization  of  municipal  and  county  taxes.    That  does  not  seem  to  me  to  be  right. 

Under  the  present  statute  and  the  present  method  of  collecting  taxes  upon  visible 
property  of  railroads,  it  is  taxed  where  the  principle  office  is.  If  this  right  of  taxing 
the  railroads  as  a  unit  and  then  subdividing  it  according  to  the  number  of  miles  of  roal 
in  the  several  counties  and  cities  of  the  State  is  adopted,  it  seems  to  me  that  some  rule 
ought  to  obtain  in  regard  to  the  visible  personal  property  of  the  road.  As  I  understand 
the  statute  alluded  to  by  the  gentleman  from  Richmond,  which  we  are  legislating  into 
this  Constitution,  it  provides  that  the  tax  is  to  be  collected  where  the  principal  office  of 
the  road  is,  and  is  not  to  be  pursued  as  other  taxes  are.  If  I  may  be  allowed  to  repeat, 
although  they  make  an  effort  to  provide  for  the  inequality  existing  in  State  taxes,  they 
make  no  effort  whatever  to  equalize  it  in  regard  to  cities  and  counties.  It  does  not 
seem  to  me  that  this  is  right. 

Mr.  Barbour:  May  I  be  allowed  to  suggest  that  the  rate  of  local  taxation  is  gener- 
ally about  twice  what  the  State  rate  is. 

Mr.  Eggleston:    Yes;  I  believe  the  average  rate  is  twice  what  the  State  tax  is. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


2667 


Now,  so  far  as  the  State  tax  is  concerned,  perhaps  it  has  been  equalized.  The  com- 
mittee has  undertaken  to  fix  this  tax  on  gross  receipts  at  a  figure  which  will  equalize 
this  tax  so  far  as  the  State  tax  is  concerned,  hut  they  have  undertaken  to  do  nothing 
with  this  question  of  local  taxation  for  the  cities  and  counties. 

Mr.  Portlock:  Mr.  Chairman,  I,  for  one,  object  to  this  provision  in  this  section,  and 
1  do  it  because  I  feel  that  we  are  going  far  beyond  what  the  provisions  of  the  Constitu- 
tion contemplate.  We  have  already  embodied  many  matters  of  legislation  in  this  Con- 
stitution, and  we  have  now  reached  a  point  where  the  Constitution  is  not  to  speak  for 
itself,  but  where  we  must  go  outside  of  it  and  look  at  the  laws  which  now  exist.  For  all 
future  time  we  must  turn  back  to  the  laws  which  now  exist  and  read  them  into  this 
Constitution  in  order  to  know  what  the  Constitution  is?  If  this  method  of  framing  a 
Constitution  is  to  be  adopted,  the  whole  Code  of  Virginia  and  the  Acts  of  the  General 
Assembly  will  ultimately  be  embodied  in  it.  Take  this  one  provision  in  the  very  outset 
of  this  section,  and  we  find  that  it  provides  for  a  method  of  assessing  property  as  "  now 
provided  by  law."  By  what  law?  By  the  Constitution  of  Virginia?  Certainly  not; 
but  by  a  law  which  must  be  read  into  this  Constitution.  Further  on  in  this  section  we 
find  that  another  provision  is  made  for  assessing  this  property,  real  and  personal, 
according  to  certain  other  laws  v/hich  must  be  read  into  this  Constitution,  and  those 
laws  cover  whole  chapters. 

Mr.  Meredith:  I  submit  that  the  gentleman  does  not  understand  the  matter  he  is 
discussing,  because  he  speaks  now  as  if  there  were  half  a  dozen  laws  to  be  read  in  here, 
when  there  is  only  one  referred  to. 

Mr.  Portlock:  You  read  into  this  Constitution  the  laws  relating  to  the  assesment 
of  taxes. 

Mr.  Meredith:  No,  we  do  not;  all  we  read  in  is  this  law  as  to  assessing  it  for  local 
purposes;  which  law  is  the  same  one  that  provides  for  the  method  of  assessment  foi" 
State  purposes.    It  is  one  single  statute. 

Mr.  Portlock:  If  I  am  mistaken  as  to  that  I  am  not  mistaken  as  to  the  general 
principle  that  you  are  reading  into  the  Constitution  a  statute  law  which  ought  not  to  be 
in  the  Constitution,  inasmuch  as  the  Constitution  should,  in  my  opinion,  speak  for  itself. 
]  think  the  Constitution  ought  to  stand  by  itself.  It  ought  to  be  a  Constitution  which 
amounts  to  a  prohibtion  only  upon  Igislation  and  should  not  embody  legislation  in  it 
from  the  beginning  to  the  end,  as  is  sought  to  be  done  by  this  Convention. 

Mr.  R.  L.  Gordon:  I  trust. that  this  word  "now"  will  be  stricken  out.  It  seems  to 
me  that  the  object  desired  may  be  accomplished  by  leaving  out  that  word  and  having 
it  read  "  in  the  manner  authorized  by  law."    It  seems  to  me  that  is  all  that  is  necessary. 

Mr.  Fairfax:  Instead  of  the  word  "authorized,"  we  have  amended  and  used  the 
word  "  required." 

Mr.  R.  L.  Gordon:  I  am  opposed  to  any  proposition  which  will  tie  the  hands  of  the 
Legislature  of  Virginia  for  ten  years  as  to  the  quantum  of  taxation.  I  think  that  if  any- 
thing can  be  left  to  the  Legislature  of  Virginia  this  question  of  taxation  can. 

Mr.  R.  Walton  Moore:  That  there  may  be  no  misapprehension,  may  I  say  to  the 
gentlemen  th&t  the  report  does  not  tie  the  hands  of  the  Legislature  of  Virginia  as  to  the 
quantum  of  taxation,  except  in  one  particular,  and  that  is  as  to  the  amount  of  franchise 
tax,  1  per  cent,  upon  the  gross  earnings  of  the  road.  If  the  gentleman  will  make  an 
examination,  I  think  he  will  find  that  that  is  a  pretty  liberal  provision.  If  you  will 
compare  that  rate  with  what  is  imposed  by  laws  of  other  States  you  will  find  that  it  is 
a  tolerably  liberal  provision.  It  was  put  in  here  for  the  purpose  of  guiding  the  Legis- 
lature and  with  the  understanding  that  we  might  be,  at  once,  sure  of  receiving  from  two 
hundred  to  two  hundred  and  fifty  thousand  dollars  more  than  we  are  now,  instead  of 
postponing  such  a  result  as  that  until  the  Legislature  could  give  this  matter  full  and 
detailed  consideration. 

Mr.  R.  L.  Gordon:  I  am  perfectly  content  to  accept  the  judgment  of  this  committee 
as  to  the  quantum  of  taxation  which  they  fixed  as  proper,  at  this  particular  time.  But 


2668 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


how  can  this  committee  say  or  how  can  any  finite  man  say  that  that  rate  of  taxation  will 
be  just  and  proper  ten  years  from  now,  non  constat,  the  property  of  one  of  these  cor- 
porations may  have  doubled  in  value,  and  one  per  cent,  tax  may  be  a  very  small  tax  ten 
years  from  now,  whereas  it  may  be  a  very  heavy  tax  at  this  time.  My  objection  to  the 
word  "  now  "  is  that  is  seems  to  me  to  be  a  part  of  a  general  scheme  of  this  committee 
to  practically  make  a  bargain  with  the  railroad  people  of  this  State  that  their  taxes 
shall  not  be  increased  for  ten  years. 

Mr.  R.  Walton  Moore:  Does  my  friend  think  that  we  are  limiting  the  assessment 
of  the  visible  property  of  these  corporations? 

Mr.  R.  L.  Gordon:    Not  at  all. 

Mr.  Stuart:  In  answer  to  your  statement  that  one  per  cent,  is  fixed  as  the  tax  upon 
the  franchises  of  railroads,  and  that  these  franchises  may  become  more  valuable,  I  think 
that  you  will  observe,  on  reflection,  that  it  is  based  upon  gross  receipts,  and  in  propor- 
tion as  the  gross  receipts  increase,  the  taxes  must  necessarily  increase,  so  that  it  is  not 
a  fixture. 

Mr.  R.  L.  Gordon:  I  understand  that  as  the  value  of  the  franchises  increase,  the 
gross  receipts  of  the  company  will  increase,  and  the  taxation  will  increase;  but  that  does 
not  show  that  the  taxation  will  be  just  and  proper,  or  that  it  will  be  right.  I  under- 
stand from  the  gentlemen  who  represent  the  committee  here,  that  the  railroad  people 
came  forward  and  offered  them  a  rate  of  seven  mills,  and  that  the  committee  accepted 
ten  mills,  and  that  they  not  only  accepted  ten  mills,  but  accepted  ten  mills  for  ten  years. 

Mr.  Hamilton:  May  I  interrupt  the  gentleman  for  the  purpose  of  giving  informa- 
tion? I  do  not  understand  that  the  railroad  people  came  before  the  committee  and 
admitted  that  the  taxation  which  they  had  heretofore  had  was  not  full  and  just.  On 
the  contrary  they  contended  that  they  had  heretofore  been  taxed  as  high  as  the  average 
railroads  in  this  country,  and  as  high  as  other  property  in  Virginia,  in  proportion  to  its 
value.  To  that  extent  I  differ  from  the  statement  made,  if  they  have  proceeded  from  an 
impression  that  the  railroad  people  volunteered  to  pay  an  increased  rate  of  taxation. 

Mr.  R.  L.  Gordon:  If  they  did  not  admit  it  they  ought  to  have  admitted  it,  because 
everybody  knew  it. 

Mr.  Hamilton:  I  will  say  that  that  is  true  of  a  great  deal  of  other  property  in  this 
State  as  he  knows. 

Mr.  R.  L.  Gordon:  There  are  places  where  the  rate  of  taxation  is  as  high  as  four 
per  cent,  upon  the  gross  earnings. 

Mr.  Meredith:  You  will  understand  that  in  any  State  where  the  rate  of  taxation 
upon  gross  earnings  amounts  to  four  per  cent,  of  such  earnings,  there  is  no  tax  upon 
the  real  or  personal  property  of  the  railroad.  The  average  tax,  in  the  United  States, 
upon  railroad  property  is  about  three  and  a  half  per  cent,  of  their  gross  earnings.  This 
rate  of  taxation,  which  we  have  provided,  will  make  about  three  and  one-third  per  cent, 
of  the  gross  earnings,  and  on  two  of  the  roads  will  make  something  over  five  per  cent. 

Mr.  R.  L.  Gordon:  In  response  to  my  friend  from  Richmond,  I  will  say  that  I  am 
not  questioning  the  fact,  and  do  not  wish  to  be  understood  as  questioning  the  fact  that 
this  committee  has  suggested  a  wise  and  proper  tax  for  the  present.  I  do  not  mean  to 
say  what  would  be  a  proper  tax.  It  would  be  very  presumptuous  on  my  part  to  suggest 
anything  in  that  line  to  this  committee  who  have  carefully  studied  and  considered  this 
question.  The  reason  I  object  to  the  word  "  now  "  is  that  it  is  a  part  of  this  ten  year 
proposition,  and  I  am  opposed  to  putting  it  in. 

Mr.  Meredith:  The  word  "now"  does  not  effect  the  question  as  to  Section  14. 
When  you  come  to  Section  14  you  can  discuss  the  question  as  to  whether  you  will  strike 
out  that  ten  year  provision  or  let  the  Legislature  modify  it  to  any  time  it  may  see  fit. 
That  is  another  proposition  that  ought  to  be  left  until  the  proper  time  for  discussion. 
The  word  "  now  "  is  necessary  in  order  to  put  this  scheme  into  operation  and  keep  it 
going  for  ten  years. 

We  do  not  propose  to  strike  out  Section  14.    The  gentleman  knows  that  Section  14 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


2669 


not  ony  provides  for  continuing  the  methods  for  ten  years,  hut  also  provides  that  the 
Legislature  may  modify  or  change  it.  If  you  change  Section  14  so  that  the  Legislature 
may,  at  any  time,  modify  or  change  the  laws  in  force,  the  present  methods  of  carrying 
this  thing  becomes  a  nullity.  So,  when  I  refer  you  to  Section  14  I  do  not  refer  you  to 
a  part  of  it,  but  refer  you  to  the  whole  of  it.  We  have  asked  that  you  allow  us  to  carry 
this  method  of  taxation  into  immediate  operation.  We  have  said  that  v\'e  believe  we  can 
get  more  than  |250,000  increase  of  revenue  for  this  State,  if  you  will  allow  us  to  carry 
it  out.  We  say  we  will  tax  the  ralroads  upon  their  real  estate  and  tangible  personal 
property,  and  that  in  addition  there  shall  be  a  franchise  tax  of  one  per  cent,  on  their 
gross  earnings.  Now  let  us  know  whether  you  propose  to  adopt  that  scheme  as  a  wise 
one  or  whether  you  propose  to  cut  it  down,  because  you  did  not  want  the  word  "now  " 
in  there.  That  is  what  we  tender  to  the  State.  What  do  you  tender?  We  are  offering 
something  valuable.  We  say  we  are  prepared  to  give  this  State  $250,000  more  taxes,  by 
this  method  than  it  gets  now.  We  say  that  you  have  got  to  pursue  one  method  or  the 
other;  that  we  have  got  to  carry  this  thing  into  operation  ourselves,  or  we  have  got  to 
let  the  Legislature  do  it.    We  say  let  the  Constitution  do  it. 

Mr.  Barbour:  I  object  to  the  word  "now"  for  the  reason  that  it  does  not  leave  it 
to  the  Legislature.  I  want  the  power  continued  in  the  Legislature.  I  have  no  objection 
to  the  scheme  except  so  far  as  it  limits  the  taxes  on  the  corporations  and  does  not  limit 
taxes  on  the  ordinary  citizen. 

Mr.  Meredith:  We  have  said  that  we  tendered  the  State  a  scheme  of  taxation 
whereby  you  get  $250,000.  You  do  not  offer  anything.  We  tender  you  a  scheme  by 
which  we  put  this  into  immediate  operation.  You  have  got  to  take  that  or  you  have  got 
to  say  that  while  you  would  like  to  have  that  $250,000  you  prefer  that  the  Legislature 
should  carry  it  out.  You  must  make  your  choice.  You  have  got  to  put  this  thing  into 
operation  3-ourselves  or  leave  it  to  the  Legislature.  You  have  got  to  make  a  choice. 
That  is  a  fair  statement.  If  3'Ou  make  it  yourselves  you  have  either  got  to  give  it  in 
express  terms,  by  setting  forth  the  manner  in  detail  or  by  reference  to  some  statute. 
That  is  a  fair  proposition.  There  are  but  two  methods  by  which  you  can  put  it  into  the 
Constitution — either  by  express  terms,  or  by  reference  to  some  statute.  Which  will  you 
to.ke?  Do  you  want  to  incumber  this  section  by  stating  how  the  real  estate  of  a  railroad 
shall  be  taxed,  and  how  their  tangible  personal  property  shall  be  taxed?  Shall  we  put 
In  here  the  very  words  of  the  statute?  TvTiat  good  will  it  do?  Yv'hat  benefit  can  come 
from  lengthening  this  article  on  taxation?  Objection  has  been  made  time  and  time 
again  that  this  Constitution  will  be  too  lengthy.  We  have  merely  tried  to  shorten  this 
article  by  referring  to  the  statute,  instead  of  inserting  its  provisions. 

Now,  Section  9  is  not  affected  by  Section  14,  which  provides  that  this  system  shall 
be  in  operation  for  ten  years  and  then  may  be  modified  by  the  Legislature.  If  you  do 
not  approve  of  binding  the  Legislattire  at  all,  when  yoti  come  to  Section  14  simply  strike 
out  that  part  of  it,  and  say  that  the  Legislature  may  change  it  at  an^^  time.  Do  not  let 
us  have  one  thing  in  our  mind,  when  it  is  not  fairlj'  before  us.  The  question  as  to  how 
long  the  Legislature  shall  be  bound  is  not  determined  by  Section  9,  the  one  under  dis- 
cussion. It  does  not  prescribe  how  long  the  Legislature  shall  be  bound.  It  simply  says 
that  for  the  purpose  of  putting  this  system  into  immediate  operation,  we  propose  to 
adopt  the  statute  for  the  purpose  of  prescribing  the  method  of  valuation;  but  not  for 
fixing  the  value  of  the  rate  of  taxation.  Having  chosen  now,  that  you  vant  to  get  this 
$250,000  of  increased  taxes,  and  having  chosen  that  you  deem  it  wise  to  start  it  your- 
selves, then  you  must  say  whether  you  are  to  start  it  by  putting  into  this  article  a 
reference  to  this  statute,  or  by  inserting  this  long  statute.  I  respectfully  submit  that 
you  can  find  no  objection  to  Section  9,  unless  you  tie  it  to  Section  14.  Do  not  tie  it  to 
Section  14.  Let  us  meet  Section  14  when  it  comes.  Let  us  say  how  we  shall  start  this 
thing.  If  you  will  consider  for  a  moment  that  Section  9  is  not  tied  to  Section  14,  but  is 
perfectly  free,  and  that  if  Section  14  did  not  exist — 

Mr.  Waddill:  I  understand  that  the  word  "now,"  in  line  3  of  Section  9,  means 
that  the  Legislature  can  hereafter  change  the  method  of  assessing  railroads? 


2670 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  Meredith:  It  does,  if  you  modify  Section  14.  You  can  say  it  shall  last  for  five 
years,  or  one  year,  or  not  at  all.  You  need  not  fix  any  definite  time,  and  then  the  Legis- 
lature can  change  it  at  any  time. 

Mr.  Barbour:  What  is  the  objection  to  leaving  the  word  "now"  in  there  and  in- 
serting after  the  word  "  now  "  the  words  "  as  may  hereafter  be  authorized  by  law?"  I 
want  to  call  your  attention  to  the  fact  that  this  would  not  interfere  with  your  ten  year 
scheme  at  all.  We  want  to  preserve  the  power  to  the  Legislature  to  alter  the  details  of 
the  present  statute  during  that  period  of  ten  years. 

Mr.  Meredith.  The  period  of  ten  years  is  not  put  in  there  simply  for  the  benefit 
of  the  railroads.  That  was  put  in  there  for  the  benefit  of  the  State  also.  We  thought 
if  we  could  get  this  fixed  for  ten  years,  so  that  the  Legislature  could  not  tamper  with  it 
and  cut  it  down,  that  at  the  end  of  ten  years,  it  would  provide  a  scheme  of  taxation 
which  it  would  deem  better  than  this.  The  railroads  wanted  it  put  in  there  for  the  sake 
of  peace  to  them,  and  we  want  it  put  in  there  for  the  benefit  of  the  State. 

Mr.  Wysor:    Could  not  we  preserve  that  system  striking  out  the  word  "now?" 

Mr.  Meredith:  That  is  a  legal  question  and  a  question  of  construction.  You  are 
undertaking  to  say  that  a  certain  system  of  ascertaining  the  value  of  property  shall  be 
carried  out;  and  you  say  that  it  shall  be  done  in  the  manner  required  by  law.  By  what 
law?  That  is  a  matter  of  construction.  We  do  not  want  it  to  be  a  matter  of  con- 
struction. We  want  it  to  say  that  it  shall  be  carried  out  under  the  provisions  of  this 
statute,  and  therefore  we  use  the  words  "  now  required  by  law,"  That  is  the  object 
of  the  word  "  now."  It  was  put  in  there,  so  that  there  should  be  no  doubt  as  to  what 
statute  was  referred  to,  and  that  it  should  clearly  specify  the  one  now  in  existence. 

Do  not  confound  this  Section  9  with  Section  14,  but  let  us  consider  the  two  sepa- 
rately. 

I  earnestly  hope  that  you  will  look  at  this  matter  for  the  benefit  of  the  State,  as  a 
scheme  by  which  we  will  get  $250,000  a  year  more  taxes  than  we  are  now  getting,  and 
that  you  will  adopt  this  language.  Then,  when  you  come  to  Section  14,  we  will  meet 
the  objection,  which  you  may  make  to  the  length  of  time. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Charlotte  (Mr.  Eggleston). 

The  amendment  was  rejected. 

The  Chairman:  Are  there  any  other  amendments  to  Section  9?  If  not  the  Secre- 
tary will  read  Section  10. 

Sec.  10.  Each  such  railway  or  canal  corporation,  including  also  any  such  as  is 
exempt  from  taxation  as  to  its  works,  visible  property,  or  profits,  shall  also  pay  to  the 
State  an  annual  State  franchise  tax  equal  to  one  per  centum  upon  the  gross  receipts 
hereinafter  specified  in  Section  11,  for  the  privilege  of  exercising  its  franchises  in  this 
State,  which,  with  the  taxes  provided  for  in  Section  9,  shall  be  in  lieu  of  all  taxes  or 
license  charges  whatsoever  upon  the  franchises  of  such  corporation,  the  shares  of  stock 
issued  by  it,  and  upon  its  property  assessed  under  Section  9:  provided,  that  nothing 
herein  contained  shall  exempt  such  corporation  from  assessments  for  street  and  other 
public  local  improvements  authorized  by  Section  3;  but  nothing  herein  contained  shall 
annul  or  interfere  with  any  contract  or  agreement  by  ordinance  between  street  railway 
corporations  and  municipalities,  as  to  compensation  for  the  use  of  the  streets  or  alleys 
of  such  municipalities  by  such  railway  corporations. 

A.  When  the  road  or  canal  of  the  corporation  lies  wholly  within  this  State,  the 
tax  shall  be  equal  to  one  per  centum  of  the  entire  gross  transportation  receipts  of  such 
corporation. 

B.  When  the  road  or  canal  of  the  corporation  lies  partly  within  and  partly  without 
this  State,  or  is  operated  as  a  part  of  a  line  or  system  extending  beyond  this  State,  the 
tax  shall  be  equal  to  one  per  centum  of  the  gross  transportation  receipts  earned  within 
this  State,  to  be  ascertained  as  follows:  By  ascertaining  the  average  gross  transporta- 
tion receipts  per  mile  over  its  whole  extent  within  and  without  this  State,  and  multiply- 
ing the  result  by  the  number  of  miles  operated  within  this  State:  provided,  that  from 
the  sum  so  ascertained  there  may  be  deducted  a  reasonable  sum  because  of  any  excess 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2671 

of  value  of  the  terminal  facilities  or  other  similar  advantages  situated  in  other  States 
over  similar  facilities  or  advantages  situated  in  this  State. 

The  Chairman:  If  there  are  no  further  amendments  to  sub-section  B  the  Secre- 
tary will  read  Section  12. 

Mr.  Barbour:  Before  proceeding  with  that  section  I  would  like  to  inquire  of  the 
committee  as  to  what  construction  is  put  upon  the  words  "  transportation  receipts." 
Has  there  been  any  construction  of  that  language? 

Mr.  Meredith:  That  language  is  used  in  the  Maine  statute,  which  has  received  the 
construction  of  the  Supreme  Court  in  142nd  United  States  Reports.  It  has  been  con- 
strued to  mean  freight  and  passenger  receipts. 

Mr.  Barbour:  That  point  is  all  right  for  the  present.  I  see  that  you  provide  that  a 
reasonable  sum  may  be  deducted  "  because  of  any  excess  of  value  of  the  terminal  facili- 
ties or  other  similar  advantages  situated  in  other  States  over  similar  facilities  or  advan- 
tages situated  in  this  State." 

I  think  that  is  all  right  where  those  advantages  exist  in  other  States.  But  if  the 
facilities  in  this  State  are  superior  to  those  situated  in  other  States  it  seems  to  me  that 
there  should  be  an  addition  to  cover  that  point.  In  order  to  meet  that  I  suggest  the 
following  amendment  to -be  added  at  the  end  of  the  section: 

And  a  like  sum  may  be  added  thereto  because  of  any  excess  value  of  terminal 
facilities  of  other  similar  advantages  situated  in  this  State  over  terminal  facilities  and 
similar  advantages  situated  in  other  States. 

Mr.  Meredith:  In  treating  this  we  had  to  be  very  careful  because  we  knew  we  had 
to  run  the  risk  of  a  contest  in  the  United  States  Courts.  We  took  the  Maine  statute,  as 
far  as  we  could  and  added  to  it  this  provision  because  the  courts  have  recognized  that  in 
ascertaining  the  gross  receipts  per  mile,  the  boards  must  be  allowed  to  take  into  consid- 
eration the  extra  facilities  in  other  States.  We  were  a  little  afraid  to  undertake  to  add 
anything  to  the  value  of  these  transportation  receipts  per  mile  by  reason  of  any  extra 
facilities  in  this  State,  as  that  question  has  not  been  decided,  involved  only  a  small 
amount,  and  he  did  not  think  it  wise  to  do  so. 

Mr.  Barbour:    In  view  of  that  statement  I  will  not  insist  upon  the  amendment. 

The  Chairman:  Are  there  any  other  amendments  to  Section  11?  If  not  the  Secre- 
tary will  read  Section  12. 

Sec.  12.  Each  corporation,  mentioned  in  Section  nine,  shall  annually,  on  the  first 
day  of  September,  make  to  the  Board  of  Public  Works  the  report  which  the  existing  law 
requires  to  be  made  annually  to  such  board  by  every  railroad  and  canal  company  in 
this  State,  not  exempt  from  taxation  by  virtue  of  its  charter,  except  that  the  report  shall 
show  what  property  in  this  State  belonged  to  the  corporation  on  the  30th  day  of  June 
preceding,  and  its  total  gross  transportation  receipts  for  the  year  ending  on  that  date. 
Upon  receiving  such  report  the  Board  of  Public  Works  shall,  after  thirty  days'  notice 
previously  given,  as  provided  by  said  law,  assess  the  value  of  the  property  of  the  cor- 
poration, if  not  exempt  by  its  charter  from  taxation,  and  ascertain  the  amount  of  the 
franchise  tax  and  other  taxes  chargeable  against  it.  All  taxes  for  which  the  corporation 
shall  be  liable  shall  be  paid  on  or  before  the  first  day  of  December  following.  The 
provisions  of  said  existing  law,  except  as  changed  by  this  article,  shall  apply  to  the 
ascertainment  and  collection  of  franchise,  as  well  as  other  taxes  of  such  corporations. 
Said  taxes,  until  paid,  shall  be  a  lien  upon  the  property  within  this  State  of  the  corpora- 
tion owning  the  same,  and  take  precedence  of  all  other  liens  or  incumbrances. 

Mr.  Fairfax:  There  are  two  or  three  amendments  we  desire  to  make  to  this  section. 
In  line  3,  strike  out  the  words  "  board  of  public  works  "  and  insert  the  words  "  State  cor- 
poration commission."  In  line  4  strike  out  the  words  "  such  board "  and  insert  the 
words  "  the  board  of  public  works  "  and  insert  "  State  corporation  commission." 

The  amendments  were  agreed  to. 

The  Chairman:  If  there  are  no  further  amendments  to  Section  12,  the  Secretary 
will  read  Section  13. 


2672  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Sec.  13.  Any  corporation  aggrieved  by  the  assessment  and  ascertainment  made 
under  Section  12  may,  within  thirty  days  after  receiving  a  certified  copy  thereof,  apply 
for  relief  to  the  circuit  court  of  the  city  of  Richmond.  Notice  of  the  application,  set- 
ting forth  the  grounds  of  complaint,  and  verified  by  affidavit,  shall  be  served  on  the 
board  of  public  works,  and  on  the  Attorney-General,  whose  duty  it  shall  be  to  represent 
the  Commonwealth.  If  the  court  be  of  the  opinion  that  the  assessment  or  tax  is  exces- 
sive, it  shall  reduce  the  same;  but  if  of  opinion  that  it  is  insufficient,  it  shall  increase 
the  same.  Unless  the  applicant  paid  the  taxes  under  protest,  when  due,  the  court,  if 
the  decision  is  wholly  adverse  to  the  applicant,  shall  give  judgment  against  it  for  a 
sum,  by  way  of  damages,  equal  to  interest  at  the  rate  of  one  per  centum  per  month 
upon  the  amount  of  taxes  from  time  the  same  was  payable.  If  the  decision  is  in  favor 
of  the  applicant,  in  whole  or  in  part,  appropriate  relief  shall  be  granted,  including  the 
right  to  recover  any  excess  of  taxes  that  may  have  been  paid,  with  legal  interest  there- 
on, and  costs,  from  the  State  or  local  authorities,  or  both,  as  the  case  may  be;  the 
judgment  to  be  enforcible  by  mandamus  or  other  proper  process  issuing  from  the  court 
finally  adjudicating  the  application.  Subject  to  provisions  of  article — of  the  Constitu- 
tion, the  Supreme  Court  of  Appeals  may  allow  a  wirt  of  error  to  either  party. 

Mr.  Barbour:  I  observe  that  in  line  20  of  this  section  is  a  provison  for  the  payment 
of  costs  by  the  Commonwealth.  This  is  the  only  case  I  ever  heard  of  where  costs  were 
allowed  against  the  Commonwealth.  I  see  no  use  of  making  an  exception  of  these  cor- 
porations in  such  cases.  Individuals  have  to  pay  their  own  costs  whenever  they  are 
litigating  with  the  Commonwealth,  and  I  do  not  see  any  reason  why  the  corporations 
should  not  do  the  same.    I  move  to  strike  out  the  words  "  and  cost." 

At  this  point  the  committee  rose  and  the  Convention  adjourned  until  to-morroWf 
Tuesday,  February  25,  1902,  at  10  o'clock,  A.  M. 


TUESDAY,  February  25,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Praj^er  by  Rev.  W.  F.  Dunaway,  D.  D. 

TAXATION  AND  FINANCE. 

On  motion  of  Mr.  Fairfax  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Taxation  and 
Finance,  Mr.  Ayers  in  the  Chair. 

The  Chairman:  The  business  before  the  Committee  of  the  Whole  is  the  report  of 
the  Committe  on  Taxation  and  Finance,  and  the  question  is  on  the  amendment  offered 
by  the  gentleman  from  Culpeper  (Mr.  Barbour). 

Mr.  Barbour:  Mr.  Chairman,  I  wish  to  call  the  attention  of  the  committee  to  the 
fact  that  in  all  these  statutory  proceedings  for  the  correction  of  erroneous  assessments 
of  individuals,  the  statutes  expressly  declare  that  no  costs  shall  be  allowed  against  the 
Commonwealth.  Section  444,  which  applies  to  the  correction  of  assessments  of  real 
estate,  concludes  "  and  such  application  shall  have  precedence  over  all  other  causes 
pending  in  said  court;  but  no  costs  shall  be  taxed  against  the  applicant  or  the  Common- 
wealth." 

Section  573,  which  applies  to  the  same  matter  in  the  Court  of  Appeals,  says:  "But 
no  costs  shall  be  adjudged  against  the  Commonwealth  on  the  appeal." 

Mr.  Chairman,  I  do  not  see  why  these  corporations  should  be  on  a  different  footing 
from  that  of  individuals,  and  I  hope  the  amendment  will  be  adopted. 

Mr.  Meredith:  Mr.  Chairman,  this  may  seem  to  be  a  very  small  matter,  and  possi- 
bly it  may  be,  so  far  as  the  actual  amount  of  money  is  concerned;  but  this  provision 
is  put  in  here  for  this  reason:  You  will  see  that  there  is  a  very  large  penalty  put  on 
the  railroads  if  they  fail  by  their  appeal.  They  have  to  take  the  chance  of  that  in 
taking  the  appeal.    Now  the  question  of  ascertaining  the  value  of  railroad  property  is 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2673 


a  very  difficult  one,  and  it  is  very  possible  that  the  commission  may  commit  some  errors. 
The  question  between  us  is  as  to  whether  the  winning  party  shall  get  costs.  I  under- 
stand the  general  rule  is  not  to  pay  costs  in  the  case  of  the  Commonwealth;  but  this 
is  a  matter  in  which  there  may  be  involved  very  large  amounts,  and  the  party  certainly 
ought  to  have  the  right  at  least  to  get  back  the  money  he  expends  in  testing  the  large 
assessments  that  may  be  put  upon  him;  and  if  you  take  into  consideration  that  he  is 
required  to  pay  a  very  large  penalty  if  he  fails  in  his  appeal,  I  think  the  Commonwealth 
will  certainly  come  out  even  in  matters  of  that  kind. 

I  do  not  think  we  ought  to  put  the  penalty  upon  these  people  that  we  do  not  put 
upon  other  people  and  at  the  same  time  not  give  them  some  slight  benefit  not  given 
others.  That  is  our  reason  for  drawing  an  apparently  invidious  distinction  between 
private  citizens  and  the  corporations,  because  we  put  a  burden  on  these  corporations 
that  we  do  not  put  on  individuals,  in  the  large  amount  charged  in  damages,  if  they  fail 
on  their  appeal.  We  think  it  is  fair  and  just  and  that  the  Commonwealth  would  more 
than  come  out  even  in  the  long  run. 

Mr.  Hancock:  Mr.  Chairman,  I  think  the  amendment  of  the  gentleman  from  Cul- 
peper  is  eminently  proper,  that  it  is  wise  and  is  according  to  the  custom  that  has  always 
prevailed  in  Virginia.  No  costs  have  ever  been  adjudged  against  this  Commonwealth  in 
any  of  here  courts.  It  seems  to  me  to  be  giving  these  railroads  and  corporations  a  right  to 
recover  of  the  State  of  Virginia  what  the  individual  who  may  appear  in  her  courts  can 
not  recover.  What  difference  does  it  make  whether  the  costs  that  are  to  be  recovered 
are  large  or  small,  or  whether  the  transaction  is  one  that  involves  one  hundred  dollars 
or  one  hundred  thousand  dollars?  The  same  principle  should  control  the  judgment  of 
the  court.  That  principle  is  that  the  sovereign  can  not  be  compelled  to  pay.  The 
principle  is  that  the  State  can  never  be  made  to  pay  costs  to  any  person  who  appears 
in  her  courts.  She  provides  courts  for  her  citizens  and  allows  herself  to  be  sued  or 
not  as  she  may  think  proper.  That  being  the  case,  it  seems  to  me  that  it  is  wrong  in 
principle  to  allow  any  one  of  these  railroads  or  any  individual  in  the  Commonwealth 
to  compel  the  Commonwealth  to  pay  cost  in  any  case  whatever.  Let  it  be  as  it 
always  has  been  that  the  Commonwealth  gives  her  people  the  privilege  to  sue  in  her 
courts,  and  the  right  to  recover  costs  against  each  other,  but  never  to  recover  costs 
against  the  Commonwealth. 

The  amendment  was  rejected;  there  being,  on  a  division,  ayes  15,  noes  38. 

The  Chairman:  Are  there  any  further  amendments  to  Section  13?  If  not  the 
Secretary  will  read  Section  14. 

Mr.  R.  L.  Gordon:  Mr.  Chairman,  I  move  to  strike  out  all  of  the  language  in 
Section  14  beginning  with  "  and  such  system  shall  so  remain  until  the  first  day  of 
January,  1913."  Mr.  Chairman,  I  only  want  to  say  a  word  in  support  of  that  amend- 
ment, in  addition  to  what  I  said  to  the  committee  on  Saturday.  I  do  not  know,  sir,  upon 
what  basis  the  committee  have  arrived  at  this  franchise  tax  which  they  have  imposed. 
The  gentlemen  who  have  spoken  in  defense  of  this  report  have  not  told  us  upon  what 
basis  they  placed  this  system  further  than  to  say  it  was  arrived  at  by  some  under- 
standing between  the  committee  and  the  gentleman  representing  the  railroad  people. 
I,  therefore,  am  totally  unable,  and  I  do  not  think  the  committee  is  able,  to  determine 
whether  that  system  imposes  a  sufficient  or  an  insufficient  tax  upon  these  corporations. 
I,  for  one,  do  not  desire  to  place  upon  the  corporations  of  this  State  one  cent  of  taxa- 
tion beyond  what  is  just  and  fair  and  in  excess  of  what  the  individual  is  paying  to  the 
State,  but  I  do  want  them  to  pay  the  same  tax  that  the  individuals  pay.  I  recognize 
further,  Mr.  Chairman,  that  this  question  of  taxation  is  perhaps  the  most  difficult  with 
which  we  have  to  deal,  and  for  us  to  determine,  with  the  limited  light  which  we  have 
before  us  that  the  amount  of  this  tax  shall  continue  for  ten  years,  and  that  the  system 
prescribed  by  this  committee  shall  continue  for  ten  years,  seems  tO'  me  to  be  unwise. 
It  seems  to  me  to  be  unnecessary,  because  if  there  is  any  one  power  that  we  can  safely 
trust  to  the  Legislature  of  Virginia  it  is  this  power  to  tax.    The  taxation  of  this  State 


3674 


DEBATES  OF  THE  CONSTITUTIOi^AL  CONVENTION"  OF  VIRGINIA. 


is  always  laid  in  response  to  a  well  defined  public  sentiment.  I  believe  that  sentiment 
will  always  be  just  and  fair,  and  I  do  not  see  why  this  able  committee  has  undertaken 
to  tie  the  hands  of  the  Legislature  of  Virginia  for  ten  years,  unless  it  be  that  it  is  a 
concession  to  the  corporations  of  the  State. 

If  it  is  a  concession  to  the  corporations  of  the  State,  that  seems  to  me  to  be  the  very 
strongest  reason  why  we  should  defeat  it,  because  I  hope  that  this  body  will  not  take 
the  position  of  taxing  the  railroads  or  of  taxing  any  individual  according  to  what  he  or 
they  may  say  is  a  fair  and  proper  tax;  but  will  take  the  position  that  this  matter  of 
taxation  shall  apply  to  individuals,  to  corporations  and  to  everybody  alike,  and  that  this 
Convention  in  its  sovereign  power,  in  fixing  these  taxes,  will  not  ask  anybody  what  they 
are  willing  to  pay,  but  that  it  will  determine  what  is  fair  and  just  for  them  to  pay. 

Mr.  Chairman,  I  know  the  history  of  this  struggle  in  reference  to  the  taxation  of 
these  corporations  in  other  States.  I  know  that  in  the  State  of  Wisconsin  the  Legis- 
lature of  that  State  as  early  as  1854  levied  a  tax  of  1  per  centum  on  tlie  gross  earnings 
"of  the  corporations  of  that  State,  and  that  that  tax  has  been  steadily  increased  until  it 
is  now  4  per  cent,  of  the  gross  earnings  of  the  corporations  of  the  State,  though  there  is 
no  property  tax  there,  such  as  we  have.  I  know  that  the  recent  tax  commission  of  that 
State,  at  the  head  of  which  stood  William  J.  Anderson,  after  a  most  elaborate  investiga- 
tion of  this  question  of  taxation,  asked  as  a  matter  of  fact,  and  after  an  elaborate  com- 
parison of  the  values  of  taxes  upon  individuals  and  the  values  of  the  taxes  upon  cor- 
porations, ascertained  that  even  a  tax  of  4  per  cent,  upon  their  gross  incomes  was 
$600,000  short  of  their  just  proportion  of  the  taxes  of  the  State.  Now  I  am  not  in  a 
position  to  determine  this  question.  I  am  willing  absolutely  to  trust  our  committee, 
and  to  believe  that  they  have  placed  on  these  companies  a  fair  and  just  tax  for  the 
present.  But  I  do  not  think,  gentlemen  of  the  committee,  that  it  will  be  wise  or  that  it 
will  be  politic  for  us  to  tie  the  hands  of  the  Legislature  of  Virginia  for  the  next  ten 
years.  Now,  I  know  there  is  some  feeling  that  the  Legislature  of  Virginia  will  not  be 
as  much  disposed  to  tax  these  corporations,  perhaps,  as  this  body  is;  but,  gentlemen,  I 
venture  this  assertion:  There  is  not  any  Legislature  that  will  assemble  in  Virginia 
that  is  going  to  repeal  a  fair  and  just  tax  which  is  placed  upon  corporations.  I  merely 
want  the  power  in  that  body  to  remedy  any  evil  or  any  injustice  which  may  be  apparent 
within  the  next  ten  years.  That  is  all.  It  seems  to  me  that  is  as  far  as  this  body  ought 
to  go. 

Mr.  Meredith:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  want  to  assure 
you  that  the  Committee  on  Taxation  and  Finance,  in  undertaking  to  make  this  system 
of  taxation,  did  not  think  for  one  moment  of  granting  any  favoritism  to  the  corpora- 
tions. On  the  other  hand,  I  think  we  can  claim  that  we  did  not  show  any  desire  to  do 
any  injustice  to  them.  We  think  we  have  shown  neither  favoritism  nor  bias.  We  in- 
crease the  taxes  largely,  it  is  true,  but  that  we  increase  them  fairly  is  also  an  undoubted 
fact.  That  is  to  say,  certainly  we  did  not  deal  harshly  with  the  railroads.  Of  course  a 
theory  or  a  principle  is  a  desirable  thing,  but  you  understand  that  the  misapplication  of 
a  good  principle  will  do  just  as  much  harm  as  the  application  of  a  bad  principle  that 
might  be  perfectly  just  in  other  States,  if  the  circumstances  existing  in  this  State  were 
not  the  same  as  those  in  the  other  States,  or  such  as  would  justify  the  application  of 
that  principle.  We  found  in  this  State  a  condition  of  affairs  different  from  that  exist- 
ing in  Wisconsin,  Michigan,  Pennsylvania  and  in  Connecticut.  We  found  this  State  to 
be  an  agricultural  State.  We  found  this  State  had  very  few  towns  of  any  size  and  very 
few  cities  of  any  size.  We  found  that  there  was  not  one  city  in  our  whole  Common- 
wealth of  one  hundred  thousand  inhabitants.  That  is  rather  remarkable  for  a  State 
which  has  been  settled  as  long  as  has  Virginia,  because  this  country  has  grown  so 
rapidly  that  there  is  hardly  a  State  in  the  Union,  outside  of  the  Southern  States,  that 
lias  not  got  a  city  of  that  size.  When  you  take  the  State  outside  of  the  cities  of  Rich- 
mond and  Norfolk,  you  will  find  that  we  have  hardly  more  than  one  or  two  cities  of  over 
twenty  thousand  inhabitants,  and  you  will  find  a  very  small  number  of  towns  and  a 


DEBATES  OE  THE  COXSTITUTIO XAL  COXVEXTIOX  OE  VIEGIXIA. 


26:5 


comparatively  small  number  of  tillages.  Our  people  are  an  agricultural  people,  and 
they  are  widely  separated  and  scattered  all  over  the  State.  They  are  not  only  agri- 
cultural,, but  they  own  large  tracts  of  land,  which  are  not  even  sub-divided  into  small 
farms.  That  isthe  condition  in  which  we  found  this  State.  You  will  readily  see  that  if 
that  is  the  condition,  the  returns  of  the  railroads  would  not  be  as  great  as  in  the  State 
of  Connecticut  or  Wisconsin  or  Pennsylvania  or  Michigan  or  any  of  the  other  States 
that  h^ve  other  systems  of  taxation.  So,  in  applying  the  theory  of  taxation,  it  was  but 
fair,  and  we  desired  to  be  fair,  that  we  should  recognize  a  fact  that  was  so  patent  and 
so  potent.    You  cannot  blame  us  for  that. 

We  recognized  that  we  could  not  immediately  apply  a  principle  that  would  be  fair 
elsewhere  but  would  be  unfair  in  Virginia  because  of  the  different  circumstances  by 
which  we  are  surrounded.  It  was  because  of  this  that  although  some  of  us  on  the 
committee  were  very  earnest  in  advocacy  of  what  is  known  as  the  Connecticut  plan,  of 
■which  I  spoke  on  yesterday,  yet  we  had  to  recognize  that  under  the  present  circum- 
etances  it  would  not  do  to  apply  that  plan  to  the  railroads  of  Virginia  at  present.  Not 
only  did  we  see  that  conditions  of  our  State  would  not  justify  it,  but  we  realized  the 
fact,  that  there  is  scarcely  a  railroad  in  this  State  outside  of  the  Richmond,  Fredericks- 
burg and  Potomac  railroad  that  has  not  been  in  the  hands  of  a  receiver  two,  three  or 
four  times  in  the  last  fifteen  or  twenty  years.  That  is  the  condition  we  found  in  this 
State.  It  would  have  been  unfair  and  unjust,  if  we  did  not  recognize  those  circum- 
stances, because  they  aSect  the  financial  condition  of  the  people  upon  whom  we  propose 
to  put  this  burden  of  taxation.  Those  are  the  reasons  which  guided  us  in  our  conclu- 
sions. TTe  found  another  fact.  We  found  in  these  States  that  are  wealthy  and  well 
settled,  that  have  large  manufacturing  and  business  industries,  that  furnish  a  large 
amount  of  freight  and  do  a  great  deal  of  local  trafiic  ('outside  of  the  group  known  as  the 
New  England  States),  three  and  one-half  per  cent  of  the  gross  earnings  is  regarded  as 
a  fair  tax.  That  information  is  furnished  by  the  Industrial  Commission  of  the  United 
States.  They  have  classified  the  States  of  this  country  in  groups.  And  outside  of  the 
group  known  as  the  New  England  States,  we  found  that  the  average  was  about  three 
pnd  a  half  per  cent,  of  the  gross  earnings  of  the  railroads,  almost  exactly  the  taxation 
that  we  apply  to  railroads  in  this  State.  We  could  not  see  our  way  clear  to  taxing  in 
Virginia  as  they  do  in  Massachusetts  or  Connecticut.  In  the  first  place  their  roads  are 
wealthy  and  they  are  built  handsomely  and  strongly.  Their  accounts  for  repairs  and 
improvements  do  not  begin  to  compare  with  the  amount  of  repairs  and  improvements  in 
this  State.  We  need  those  repairs  and  we  desire  those  improvements.  So,  instead  of 
making  a  system  of  taxation  which  would  get  a  percentage  as  large  as  in  the  New 
England  States,  we  simply  recognize  that  it  would  not  be  fair  to  do  it.  Therefore  we 
listened  to  the  railroads  when  they  came  before  our  committee  and  said  that  it  would 
not  be  fair  to  apply  the  Connecticut  plan  to  them  at  present.  And  what  did  we  do? 
We  found,  as  we  say,  that  the  roads  in  the  United  States  have  been  classified  into  diff- 
erent groups  by  the  industrial  commission  according  to  the  circumstances  that  make  it 
appropriate  that  certain  roads  should  be  in  a  certain  group.  In  nine  or  ten  groups  fixed 
by  the  Industrial  Commission  (outside  of  the  New  England  States)  the  taxation  is  not 
in  excess  of  three  and  a  half  per  cent,  of  the  net  earnings.  Surely  we  ought  not  put  a 
greater  burden  on  the  roads  in  Virginia  than  they  can  bear  in  Wisconsin  and  Michigan, 
Ohio  and  Iowa  and  those  States  which  are  prosperous  and  well  settled  and  thickly  set- 
tled. It  would  not  do  for  us  to  put  a  larger  rate  of  taxation  on  these  roads.  It  would 
be  burdensome,  and  would  tend  to  retard  the  progress  of  the  State. 

]\Ir.  R.  L.  Gordon:  I  would  like  to  ask  the  gentleman  if  he  has  entered  into  any 
calculation  to  ascertain  as  a  matter  of  fact  whether  the  corporations,  upon  the  values  of 
their  properties  as  shown  by  the  market  value  of  their  stocks  and  bonds,  are  paying  to 
the  State  an  equivalent  to  what  the  individual  is  paying  upon  his  property. 

-^Ir.  Meredith:  We  did  not  ascertain  that  by  an  accurate  calculation.  We  could 
readily  see  that  if  we  undertook  to  assess  them  by  what  is  known  as  the  Connecticut 


2676  DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OE  VIKGINIA. 


plan,  we  would  find  that  they  would  have. to  pay  one  hundred  thousand  or  two  hundred 
thousand  dollars  more  taxes  than  they  will  by  this  plan.  But  I  am  explaining  that 
under  the  present  circumstances — 

Mr.  R.  L.  Gordon:  Does  my  friend  think  that  because  they  have  been  in  bank- 
ruptcy and  in  the  hands  of  receivers,  is  any  reason  that  they  should  be  excused  from 
paying  taxes,  the  taxes  which  the  people  of  Virginia  have  to  pay.  Does  he  say  that  is 
a  reason  they  should  not,  for  ten  years  in  the  future,  pay  their  fair  and  just  burden  of 
the  State  taxes — I  mean  as  compared  with  the  individuals?  All  I  ask  is  that  the  rail- 
roads may  be  taxed  as  the  individuals  are  taxed. 

Mr.  Meredith:  It  is  a  question,  as  to  what  you  mean  by  a  fair  and  just  rate.  Mr. 
Chairman,  how  are  we  to  get  at  the  actual  market  value  of  the  roadbed  of  a  railroad? 
That  is  a  thing  that  you  cannot  actually  and  accurately  ascertain;  it  is  a  matter  of  cal- 
culation and  of  estimate.  Now,  not  being  able  to  ascertain  that  in  the  usual  method  of 
valuing  real  estate,  and  not  being  able  to  say  exactly  what  is  the  market  value  of  such 
property,  we  thought  we  would  take  another  method.  We  looked  around,  and  we,  saw 
how  the  railroads  were  taxed  in  other  States  which  were  more  prosperous  than  ours 
and  more  thickly  settled,  States  that  had  a  larger  local  travel  and  business  than  we 
had,  and  we  thought  that  if  we  could  find  there  a  guide  which  was  a  proper  and  safe 
one,  that  we  would  adopt  that  because  v/e  found  it  almost  a  matter  of  impossibility  to 
take  the  usual  guide  in  ascertaining  the  value,  the  market  value  of  this  property.  You 
cannot  find  the  market  value  of  railroad  property.  It  is  absolutely  impossible.  If  you 
put  it  at  what  it  costs  you  could  not  fix  it  properly.  If  you  put  the  value  on  some  roads 
in  this  State  at  what  they  originally  cost,  on  some  miles  of  the  road  you  would  get  the 
proper  value  and  on  some  you  would  not.  Therefore,  finding  no  way  in  which  we 
could  fix  the  value  of  that  property  according  to  the  usual  method,  we  thought  we 
would  get  some  other  guide  that  v/ould  be  fair  under  conditions  more  favorable  than 
those  which  exist  in  this  State.  That  is  the  extent  to  which  we  thought  we  ought  to  go 
in  doubling  the  taxes  on  these  people.  We  found  that  in  these  other  States  (outside  of 
the  New  England  group)  the  tax  did  not  exceed  three  and  a  half  per  cent.,  and  I 
believe  that  is  the  highest.    That  is  the  way  we  got  at  this  system. 

Mr.  R.  L.  Gordon:  I  understood  my  friend  the  other  day  to  contend,  and  I  agreed 
with  him,  that  the  proper  taxation  was  the  income  producing  value — the  capacity  to 
produce  income  was  the  proper  thing  to  gauge  value. 

Mr.  Meredith:  You  are  simply  anticipating  what  I  am  going  to  say.  We  do  not 
recognize  that  the  present  value  put  upon  the  real  estate  of  railroad  property  is  proper. 
I,  for  one,  do  not.  I  cannot  conceive  that  the  value  of  a  piece  of  road,  valued  at  $15,000 
a  mile  in  1883,  when  there  was  a  deficit  in  the  accounts  of  its  company  and  inability  to 
pay  interest,  ought  to  be  the  same  as  in  1902,  when  it  has  a  million-dollar  surplus  of  net 
earnings.  I  cannot  conceive  that  that  can  be  taken  as  the  value  now.  I  say  that  you 
cannot  find  the  actual  value  of  the  real  estate  of  a  railroad,  but  you  must  consider  when 
you  undertake  to  find  out  its  value  what  is  its  revenue-getting  power,  and  it  might  follow 
that  you  Vv^ould  increase  the  value  of  its  property,  which  ought  to  be  taxed  according 
to  its  productivity. 

I  do  not  shrink  at  all  from  the  principle.  It  is  the  proper  and  only  true  principle 
that  I  know  of.  But  I  say  that  we  have  to  trust  our  officers,  and  if  they  should  find  that 
this  property  is  more  valuable  that  it  has  been  heretofore  assessed,  they  will  fix  the 
value  at  a  fair  and  just  price,  and  nothing  more.  Their  hands  are  not  tied  by  this  pro- 
vision. My  friend  has  the  idea  that  we  are  tying  the  hands  of  the  Legislature;  but 
neither  the  hands  of  the  Legislature  nor  of  the  Corporation  Commission  are  tied  as  to 
the  assessment  of  value  or  the  rate  of  taxation.  These  things  are  left  open  to  the 
Legislature.  When  this  provision  is  adopted  the  Corporation  Commission  will  have 
full  powder  to  say  that  this  line  of  road,  which  has  heretofore  been  assessed  at  $15,000 
a  mile,  shall  be  hereafter  assessed  at  $17,000  or  $20,000  a  mile. 

Mr.  R.  L.  Gordon:    As  to  the  franchise  tax  do  you  fix  the  amount? 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


2677 


Mr.  Meredith:  I  will  try  to  explain  that  in  one  moment.  Of  course  these  things 
are  separate  and  I  have  to  take  them  up  one  at  a  time.  Let  me  go  back  one  moment, 
and  call  your  attention  to  the  fact  that  we  do  not  propose  to  go  into  this  important 
question  and  act  at  haphazard.  You  would  not  have  wanted  us  to  impose  taxes  unless 
we  proceeded  upon  some  reasonable  principle. 

As  I  have  said,  we  looked  around  to  see  if  we  could  find  a  principle  that  would  do 
justice,  and  in  looking  around  we  found  that  as  we  could  not  find  out  the  material  value 
of  this  property,  like  you  find  out  the  value  of  a  house,  we  would  provide  for  some 
method  of  estimating  it,  and  we  would  leave  it  to  the  State  authorities  to  exercise  it. 
We  found  that  if  we  take  the  property  at  its  present  value,  if  you  do  not  increase  the 
assessed  value  of  their  real  estate  and  tangible  personal  property  one  dollar,  but  add 
to  it  the  proposed  tax  of  one  per  cent,  upon  the  gross  receipts,  the  franchise  tax,  you 
will  get  in  the  case  of  the  Chesapeake  and  Ohio  road  3.31  per  cent,  of  their  gross  earn- 
ings, or  about  three  and  a  third  per  cent.  In  the  case  of  the  Norfolk  and  Western  you 
will  get  3.37  percent.,  or  about  three  and  a  third  per  cent.  In  the  case  of  the  Southern 
you  will  get  3.97  per  cent,,  or,  in  round  numbers,  four  per  cent,  of  their  gross  earnings. 
In  the  case  of  the  Seaboard  Air  Line  you  will  get  5.32,  or  about  five  and  a  third  per 
cent.;  and  as  to  the  Atlantic  Coast  Line  you  will  get  6.75  per  cent,  of  their  gross  earn- 
ings.   We  think,  gentlemen,  that  we  have  shown  no  favoritism. 

Mr.  R.  L.  Gordon:  What  per  cent  of  a  man's  income  does  he  pay  upon  a  four  per 
cent,  bond? 

Mr.  Meredith:  My  impression  is  that  very  few  of  them  pay  anything  on  a  bond. 
I  think  the  history  of  this  country  shows  that  if  there  is  any  humbug  in  the  world  it 
is  this  theory  of  equality  of  taxation,  so  far  as  intangible  personal  property  is  concerned. 

I  repeat  that  you  cannot  get  at  the  value  of  this  property  like  you  can  get  at  the 
value  of  my  real  estate.  There  is  but  one  way  of  looking  at  my  real  estate,  and  that 
is  to  see  what  its  market  value  is.  But  you  cannot  ascertain  the  market  value  of  a 
railroad  bed.  We  could  not  apply,  therefore,  the  principle  that  you  would  apply  to  the 
ordinary  classes  of  property  owned  by  individuals. 

We  found  that,  taking  information  as  given  by  as  high  a  board  of  men  as  the 
Industrial  Commission  of  the  United  States,  who  have  had  grouped  the  States  of  the 
Union  acpording  to  their  circumstances,  their  wealth,  their  railroad  facilities  and  their 
business,  outside  oft  he  New  England  group,  that  we  would  be  taxing  the  railroads  in 
Virginia  fully  as  much  as  any  group  in  the  United  States,  outside  of  the  New  England 
group,  notwithstanding  the  fact  that  this  State  is  not  a  thickly  settled  State,  or  one 
with  large  manufacturing  and  industrial  interests.  We  were  seeking  for  some  principle 
by  which  we  could  justify  our  conduct.  We  found  this,  and  we  adopted  it.  I  want 
this  committee  to  bear  in  mind  that  if  this  method  of  assessing  real  estate  and  tangible 
personal  property  should  be  continued  for  twenty  years  in  this  State  you  would  not 
be  tying  the  hands  of  the  Legislature,  so  far  as  ascertaining  the  value  of  it  is  concerned, 
but  simply  as  to  the  m-ethod  of  finding  the  value.  Nor  would  you  tie  its  hands  as  to 
the  rate  of  taxation.  But  we  did  not  think  it  was  wise  to  go  too  far.  We  thought  we 
would  look  around  and  see  if  we  could  not  fix  upon  a  number  of  years  which  would  be 
fair  to  everybody  and  at  the  same  time  give  the  State  such  reasonable  protection  as  she 
was  entitled  to. 

I  recognize  the  principle  advocated  by  the  gentleman  from  Louisa.  Our  duty  is 
to  look  to  the  interest  of  the  State  first.  But  do  not  let  us  mistake  the  interests  of  the 
State  and  destroy  the  rights  of  the  corporations.  Do  not  let  us  think  that  the  interest 
of  the  State  lies  in  unjustly  treating  anybody.  Let  us  use  our  power  in  such  a  way  as 
to  redound  to  the  best  interests  of  the  State.  We  thought  that,  as  this  property  was  to 
be  assessed  by  us  and  not  by  them,  through  these  ten  years,  we  could  be  trusted  to 
protect  ourselves  in  ascertaining  the  value  of  that  property.  Was  not  that  a  wise  con- 
clusion to  come  to?  If  you  cannot  trust  5^ourselves  in  ascertaining  the  value  of  property 
from  which  you  derive  your  revenue,  whom  can  you  trust?    Therefore  we  say  that,  what- 


2678 


DEBATES  OF  TEIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


ever  may  be  the  value  now  of  any  road,  the  value  of  it  may  be  increased  by  us,  if  we 
think  they  are  assessed  at  too  low  a  value. 

Mr.  R.  L.  Gordon:  I  want  to  ask  if  you  give  to  your  State  Corporation  Commission 
a  power  to  arrive  at  this  value,  why  do  you  desire  to  tie  the  hands  of  the  Legislature 
as  to  the  1  per  cent,  franchise  tax? 

Mr.  Meredith:  I  am  coming  to  that.  Bear  in  mind,  first,  that  we  found  as  far  as 
we  could  what  we  thought  was  a  fair  principle.  Bear  in  mind,  secondly,  that  the  value 
of  the  real  estate  and  personal  property  of  the  railroad  can  be  increased  according  to 
its  actual  increase  of  value.  Therefore  your  hands  are  not  tied.  You  start  out  with  the 
rate  of  taxation  that  is  equal  to  the  taxation  in  any  other  group  of  States  in  the  United 
States,  outside  of  the  New  England  group.  You  start  now  with  an  average  of  about 
3i  per  cent,  on  the  gross  receipts;  and  more  than  that,  as  I  have  just  shown,  on  some 
of  them.  So  we  start,  as  I  say,  with  a  fair  rate  of  taxation  according  to  the  experience 
of  other  States.  Now,  we  submit,  that  if  we  start  right,  that  we  will  be  safe  as  we  go 
along  for  this  period  of  ten  years. 

Mr.  James  W.  Gordon:  Are  these  figures  based  upon  the  percentage  of  gross  earn- 
ings of  roads  in  the  other  States? 

Mr.  Meredith:  The  actual  percentages  were,  as  I  stated,  ascertained  by  the  Indus- 
trial Commission  grouping  these  roads  in  certain  Slates.  They  ascertained  that  the 
average  rate  in  the  different  groups  did  not  exceed  in  any  case,  except  the  New  England 
group,  3J  per  cent.    We  applied  that  principle,  which  we  thought  was  about  right. 

Remember,  now,  that  you  start  with  a  basis  that  is  fair  and  just,  and  let  us  see  if 
you  cannot  protect  yourselves  in  the  future.  You  have  the  right  to  fix  the  value  of  the 
real  estate  and  of  the  tangible  personal  property.  Therefore,  if  they  increase  in  value 
you  increase  the  assessed  value  of  them,  and  if  you  do  that,  you  will  get  more  taxes. 
You  can  protect  yourselves  as  to  that.  You  are  only  limited  as  to  the  matter  of  getting 
at  that  value.    You  also  tax  them  1  per  cent,  on  the  gross  earnings. 

Mr.  R.  L.  Gordon:  My  friend  will  admit  that  the  system  of  taxing  the  actual  value 
has  been,  in  the  past,  absolutely  ineffective,  and  they  have  been  paying  taxes  on  a 
great  deal  less  than  your  committee  says  they  ought  to  pay. 

Mr,  Meredith:  If  you  will  look  back,  you  will  find  that  this  State  has  been  indulg- 
ing in  an  absurd  method  of  taxation.  She  has  undertaken  to  tax  net  earniogs,  after 
deducting  not  only  operating  expenses,  but  also  interest  paid  on  the  bonds. 

But  I  think  that  what  has  been  done  in  the  past  ought  not  be  used  as  a  prophecy 
as  to  what  will  be  done  in  the  future.  We  have  created  the  State  Corporation  Com- 
mission for  the  purpose  of  ascertaining  the  facts  necessary  for  proper  methods  of  taxa- 
tion, for  the  purpose  of  giving  the  Legislature  information  in  order  to  let  it  see  what 
is  right  and  just  and  fair  to  the  State,  and  not  to  trust  to  some  move  being  made  in  the 
Legislature  upon  the  individual  authority  of  some  member.  So  we  can  hope,  I  think, 
that  in  the  future  the  system  of  ascertaining  values  will  be  more  accurate  and  more 
just  to  the  State.  We  say  that  we  start  off  with  the  power  in  you  to  increase  the  value 
of  this  property,  so  that  you  can  increase  the  amount  of  taxes  if  you  think  it  just.  As 
to  the  tax  of  1  per  cent,  on  the  gross  earnings  you  would  not  have  the  right  to  increase 
the  rate;  according  as  those  earnings  increase,  your  revenue  will  increase.  If  they 
decrease,  your  revenue  will  decrease.  You  share  pot-luck,  if  I  may  use  that  expression, 
with  these  corporations.  If  they  are  benefited  by  prosperous  times,  you  are  benefited. 
If  they  suffer  by  times  of  financial  depression,  you  will  have  to  bear  partly  the  loss.  So 
it  is  a  movable  tax,  which  we  think  is  fair  and  just  to  these  companies  and  to  the  State. 

Now,  of  course  if  you  are  going  to  fix  any  time  for  the  continuance  of  this  system, 
you  will  have  to  fix  some  time.  Let  us  see  if  ten  years  can  be  fairly  regarded  too  long. 
Do  you  expect  this  State  to  jump  to  great  wealth  in  ten  years?  Do  you  think  the 
change  will  be  so  great,  that  unless  we  say  there  shall  be  a  change  in  the  rate  of  taxa- 
tion in  less  than  ten  years  the  railroads  will  not  pay  enough  taxes.  I  do  not  conceive, 
gentlemen,  that  there  is  going  to  be  any  such  jump  in  the  wealth  and  prosperity  of  these 
roads. 


DEBATES  OE  THE  COXSIITUTIO XAL  COXVEXTIOX  OE  VIEGIXIA. 


2679 


We  know  that  these  roads  have  rights  in  this  matter.  They  said:  Gentlemen.,  you 
are  putting  on  us  just  double  as  much  as  we  have  been  paying.  You  proposed,  in  addi- 
tion to  that,  to  control  and  to  some  extent  manage — I  will  not  shrink  from  the  word, 
though  I  see  my  friend  from  Roanoke  smiling — the  railroads,  as  far  as  the  fixing  of  rates 
and  classification  of  traffic  is  concerned.  Under  those  circumstances,  they  thought  it 
was  fair  they  should  be  reasonably  safe  for  ten  years."  If  there  is  any  reasonable  and 
fair  objection  to  it,  of  course  you  gentlemen  must  do  as  you  choose  about  it.  We  gave 
it  grave  and  serious  consideration.  I  can  say,  for  myself,  that  I  was  the  last  man  on 
the  committee  to  agree  to  the  period  of  time  being  fixed.  I  did  agree  to  it,  after  full 
consideration,  and  I  believe  now  that  it  is  fair.  I  cannot  see  any  harm  that  can  come 
from  it.  I  can  see  some  good  that  will  come  from  it.  I  believe  now,  and  am  willing  to 
stand  with  the  rest  of  the  committee  in  maintaining  the  proposition  that  this  system 
ought  to  be  fixed  for  a  reasonable  time;  not  for  so  long  a  time  as  would  carry  us  into 
the  future,  when  we  might  expect  a  large  increase,  but  for  a  reasonable  time.  It  does 
not  tie  our  hands  as  to  the  taxable  value  of  the  real  estate  or  personal  property.  We 
benefit  hy  the  increase  in  the  gross  earnings. 

Mr.  R.  L.  Gordon:  ^Ir.  Chairman,  before  the  vote  is  taken,  I  desire  to  change  the 
amendment  to  some  slight  extent.  I  merely  want  to  strike  out  the  words  "  until  the 
first  day  of  January.  1913.  after  which  date  it  shall  continue,"  so  that  the  section  vs-ould 
read:  "And  such  system  shall  so  remain  until  modified  or  changed,  as  may  be  pre- 
scribed by  law."  The  first  amendment  was  too  broad,  and  would  have  left  the  section 
without  modification  or  change  by  the  Legislature.  I  simply  want  to  strike  out  the 
words  I  have  just  read  until  the  first  day  of  January,  1913.  after  which  date  it  shall 
continue." 

ivlr.  ^Meredith:  If  you  snuke  out  anything,  and  I  hope  you  will  not.  you  will  have 
to  strike  out  also  the  date  to  which  it  shall  continue  until  modified  or  changed. 

Mr.  R.  L.  Gordon:  Xo.  sir;  we  are  leaving  it  June  30.  1903,  and  such  system  shall 
remain  until  modified  or  changed  as  prescribed  by  law."  It  merely  strikes  out  the  ten- 
year  limitation. 

Mr.  R.  Walton  Moore:  Mr.  Chairman,  it  seems  to  me  that  if  we  adopt  the  amend- 
ment offered  by  the  gentleman  from  Louisa  we  ought  to  go  further  and  strike  out  the 
system  of  railroad  and  canal  corporation  taxation  we  have  embodied  in  this  report, 
because  if  we  distrust  the  fairness  of  the  system  for  ten  years  we  ma}"  as  well  distrust 
the  fairness  of  the  system  for  one  year,  and  it  is  just  as  wrong  to  risk  a  probable 
unfair  system  for  one,  two  or  three  years  as  it  is  for  ten  3"ears.  If  the  Committee  of 
the  A\liole  is  unwilling  to  assume  that  this  will  be  a  fair  and  proper  system  for  a  certain 
period,  it  may  as  v\-ell  assume  that  it  will  be  an  imfair  and  improper  system  for  one. 
two,  three  or  four  years,  or  so  long  as  it  remains  in  operation.  Xow.  I  will  call  the 
attention  of  the  committee  to  the  fact  that  this  report  does  two  things.  It  embraces 
some  general  principles  of  taxation,  and  it  embraces  a  ten-year  system  of  taxation  for 
particular  corporations,  namely,  the  railroad  and  canal  corporations  of  the  State.  If 
this  is  a  matter,  as  suggested  by  the  gentleman  from  Louisa,  which  is  to  be  turned  over 
to  the  General  Assembly  to  the  extent  proposed  by  him,  then  the  Committee  on  Taxa- 
tion and  Finance  made  a  mistake,  it  seems  to  me.  in  attempting  to  put  a  plan  in  here 
at  all,  and  we  ought  to  relegate  the  entire  subject  to  the  General  Assembly.  Why  was 
the  committee  tm willing  to  adopt  that  course?  Simply  for  the  reason  that  we  looked 
back  over  a  long  stretch  of  years,  and  we  found  that  these  companies  had  not  been 
paying  sufficient  revenue  to  the  State,  and  looking  forward  to  the  future,  we  doubted 
whether  the  General  Assembly  would  be  able  to  deal  with  this  matter  satisfactorily 
at  once.  And  therefore,  in  order  to  insure  the  payment  into  the  treasury  of  some  thing 
like  the  amount  that  we  conceived  ought  to  be  paid  by  these  companies,  we  put  in  here 
this  system  of  taxation  providing  that  it  shall  last  for  ten  years. 

Mr.  R.  L.  Gordon:  Does  the  gentleman  believe  that  the  Legislature  of  Virginia 
will  undertake  to  lessen  or  repeal  that  law  if  it  demonstrated  to  the  people  of  Virginia 


2680 


DEBATES  OF  THE  COJsTSTITUTION'AL  CONVENTION  OF  VIRGINIA, 


that  it  was  a  just  and  fair  tax?  Does  he  believe  that  any  legislature  could  be  elected  in 
the  State  of  Virginia  to  repeal  a  just  and  proper  tax  upon  corporations? 

Mr.  R.  Walton  Moore:  I  do  not  think  so.  I  have  no  apprehension  of  that  character 
at  all;  but  my  friend  seems  to  look  only  to  one  side  of  the  question.  Is  there  no  pos- 
sibility that  we  may  have  exceeded  reasonable  limits  in  imposing  this  one  per  cent.  tax. 

Mr.  R.  L.  Gordon:  I  will  say  to  my  friend  that  if  there  is  any  doubt  concerning  that 
it  ought  to  be  modified. 

Mr.  R.  Walton  Moore:  Then  I  repeat  that  if  we  are  going  to  disturb  the  report  at 
all,  we  ought  to  strike  out  the  ten-year  system  altogether  and  place  the  State  in  the 
situation  of  uncertainty  that  it  occupies  now  and  will  continue  to  occupy,  for  how  long 
a  time  no  one  can  predict. 

Now,  gentlemen,  look  at  this  matter  for  a  moment  in  a  practical  way.  What  are 
we  getting  out  of  these  companies  to-day?  Barring  the  $20,000  net  income  tax,  we  are 
getting  into  the  State  treasury  about  $240,000  from  these  companies.  That  is  a  property 
tax  collected  upon  an  average  assessment  of  something  like  $15,000  per  mile  made  by 
the  board  of  public  works.  Now,  we  propose  to  say  to  the  corporation  commission  that 
for  the  next  ten  years  it  shall  continue  to  assess  the  visible  property,  and  nobody  appre- 
hends that  the  commission  is  going  to  reduce  the  assessment  below  $15,000.  The  rail- 
roads do  not  believe  or  expect  it.  No  one  acquainted  with  the  situation  anticipates  it. 
We  can  very  safely  assume  that  the  commission  is  not  going  to  make  any  reduction  of 
the  assessment  which  produces,  roughly  stated,  $240,000.  And  my  friend  from  Rich- 
mond (Mr.  Meredith)  has  suggested  there  is  a  possibility  that  we  will  get  more  than 
that  amount  by  an  increase  of  assessment.  In  addition  we  have  done  what?  We  have 
laid  a  tax  of  one  per  cent,  upon  the  gross  income  of  the  companies  which  will  accom- 
plish what,  immediately? 

It  will  bring  into  the  State  something  like  $260,000  in  addition  to  the  $240,000 
which  we  are  receiving  nov/.  The  earnings  of  these  companies  in  the  State  of  Virginia 
aggregate  about  $26,000,000  and  we  wish  to  write  it  here  in  the  Constitution  that  they 
shall  pay  upon  those  earnings  a  tax  at  the  rate  of  one  per  cent,  per  annum.  And  this 
is  to  be  maintained  at  least  ten  years.  Throughout  this  ten-year  period  we  are  to  con- 
tinue to  receive  one  per  cent,  upon  the  gross  earnings  of  these  companies,  whatever 
reductions  may  be  made  in  other  directions  involving  individuals  and  other  corpora- 
tions. Now,  gentlemen  of  the  committee,  is  it  better  to  do  this,  or,  upon  the  other  hand, 
is  it  better  to  strike  out  this  entire  system  of  corporate  taxation  and  say  to  the  General 
Assembly.  "  You  shall  get  to  work  upon  this  subject  and  struggle  with  it  as  the  Com- 
mittee on  Taxation  and  Finance  has  been  doing  for  several  months,  and  as  the  Consti- 
tutional Convention  has  done  and  work  out  a  result  at  some  time  in  the  future? 

Mr.  R.  L.  Gordon:  Does  the  gentleman  believe  that  if  this  is  a  just  and  fair  bill  that 
the  Legislature  of  Virginia  is  going  to  change  that  law? 

Mr.  R.  Walton  Moore:  The  report  is  predicated  upon  the  idea  that  we  have  arrived 
at  a  just  and  fair  conclusion.  If  that  be  in  doubt,  if  we  are  in  the  clouds  as  to  that, 
we  ought  not  to  put  these  companies  in  peril  any  more  than  we  should  put  the  State 
treasury  in  peril,  and  in  justice  to  all  interests,  we  ought  to  drop  the  whole  plan  and 
turn  the  matter  in  its  entirety  over  to  the  General  Assembly. 

Mr.  R.  L.  Gordon:  Does  not  my  friend  believe  that  the  Legislature  can  be  more 
safely  trusted  to  deal  wisely  with  this  matter  than  it  could  be  trusted  to  create  a  State 
corporation  commission? 

Mr.  R.  Walton  Moore:  So  far  as  I  am  concerned,  I  believe,  you  could  trust  the 
Legislature  to  deal  wisely  with  this  matter  in  the  end  precisely  as  I  have  believed  you 
could  trust  it  to  confer  powers  on  the  commission.  But  this  matter  of  taxing  corpora- 
tions is  a  great  subject  and  a  complicated  subject,  and  it  struck  this  committee  that 
the  Legislature  might  not  be  able  to  deal  with  it  satisfactorily  in  the  very  near  future, 
and  it  would  be  better  to  put  the  system  in  effect  for  a  certain  period  and  insure  the 
immediate  collection  of  a  far  larger  revenue  by  the  Commonwealth.    It  seem.s  to  us 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2681 


that  it  is  very  desirable  from  every  point  of  vievr,  that  this  systera  should  go  into  the 
Constitution  as  we  have  marked  it  out  in  this  report. 

Mr.  Barbour:  Mr.  Chairman,  I  hope  very  much  that  the  amendment  offered  by 
the  gentleman  from  Louisa  will  be  adopted.  It  does  not  seem  to  me  that  the  position 
taken  by  the  gentleman  from  Fairfax  (Mr.  Moore)  is  a  fair  one  in  undertaking  to 
threaten  this  Convention  that  it  is  to  take  the  report  of  this  committee  or  that  com- 
mittee. He  says  that  unless  we  are  willing  to  put  this  system  in  for  ten  years  that 
we  should  not  adopt  it  at  all;  that  if  we  express  a  doubt  as  to  the  fitness  of  the  sj'stem, 
that  it  should  not  go  in  here  at  all;  when  the  Committee  themselves  have  expressed  a 
doubt  as  to  the  system,  by  limiting  it  to  ten  years.  They  have  expressed  a  doubt  as  to 
the  fairness  of  the  system.  AVe  say  if  the  system  turns  out  to  be  unfair  it  will  not  take 
ten  years  to  demonstrate  it.  It  can  be  demonstrated  in  less  than  ten  years.  Our 
position  is  that  if  the  actual  practice  of  it  demonstrates  it  to  be  unfair  and  inequitable, 
then  the  representatives  of  the  people  should  not  find  their  hands  tied  for  a  period  of 
ten  years  before  they  can  correct  it.  Xow  1  propose  to  show  that  the  same  rule  that 
has  been  laid  down  for  corporations  is  not  laid  down  for  individuals  in  this  matter. 
They  have  reported  this  system  because  they  say  the  taxation  of  railroads  could  not 
be  gotten  at  under  the  ad-valorem  system,  as  I  understand  it.  They  provide  for  this 
assessment  of  this  property  as  it  is  at  present,  at  the  rate  of  $15,000  a  mile,  and  no 
one  seems  to  think  that  will  be  changed  one  way  or  the  other;  but  it  is  asserted,  upon 
the  floor  of  this  Convention,  that  is  not  a  fair  valuation  of  the  property,  that  the  rail- 
roads, the  cost  of  whose  work,  as  demonstrated  in  the  reports  that  have  been  filed 
before  the  railroad  commissioners,  cost  about  840,000  a  mile,  are  assessed  at  $15,000 
a  mile,  showing  that  they  are  assessed  at  a  little  over  one-third  of  what  they  should  be 
assessed.  But  in  order  to  equalize  that,  they  come  in  with  this  provision  for  an  income 
tax,  a  tax  upon  gross  receipts. 

They  limit  that  tax  so  that  it  cannot  be  increased;  whereas  the  tax  that  is  laid 
upon  the  individual  may  be  increased  to  any  extent.  Who  can  tell  what  will  be  tlie 
necessities  of  this  State  in  the  next  ten  years?  Some  great  calamity  may  sweep  over 
this  State;  we  may  have  greatly  increased  revenues  to  raise.  Public  buildings  may  be 
destroyed  and  epidemics  may  come,  and  it  may  be  absolutely  necessarj-  to  raise  the  rate 
of  taxation.  But  if  such  a  calamity  should  happen,  if  such  an  emergency  should  arise, 
then  under  this  provision  these  corporations  would  not  have  to  pay  that  increased  tax, 
but  the  individual  would.  The  tax  upon  their  incomes  is  limited  to  one  per  cent.  The 
tax  upon  the  incomes  of  individuals  is  not  limited  to  any  such  amount.  The  State  has 
an  unlimited  right  to  tax  the  incomes  of  individuals.  It  has  an  unlimited  right  to  lay 
a  license  tax  upon  every  business  in  this  State. 

Mr.  Boaz:  Is  there  anything  in  this  report  to  prevent  the  corporation  commission 
from  raising  the  assessment  to  $40,000  or  $50,000  a  mile  on  the  roadbed,  if  they  see  fit 
to  do  so? 

]\Ir.  Barbour:    Yes,  sir. 

I\Ir.  Boaz:    What  is  it? 

Mr.  Barbour:  It  is  this:  That  the  Legislature  is  given  power  to  change  your 
present  system  by  which  that  is  arrived  at,  but  under  the  plan  the  Legislature  cannot 
apply  the  Connecticut  system  of  arriving  at  a  valuation  of  those  roadbeds. 

Mr.  Boaz:  What  is  to  prevent  the  board  of  public  works  now  from  assessing  it 
for  S40.000  or  S50,000. 

'My.  Barbour:  Nothing. 

Mr.  Boaz:  Well,  we  do  not  put  any  further  restrictions  upon  them  than  they  have 
at  present. 

Mr.  Barbotir:    Of  course  not;  btit  if  it  is  their  duty  to  assess  it  at  S40.000  or  $50,000 
a  mile  and  they  do  not  assess  it  at  but  $15,000  a  mile,  how  is  the  Legislature  ever  going 
to  make  them  assess  it  at  $40,000  of  $50,000?    You  do  not  provide  any  means  by  which 
the  Commonwealth  can  appeal  from  the  decision  of  the  board  of  ptiblic  works,  or  that 
169 — Const.  Deb. 


2682  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

they  can  get  the  Supreme  Court  to  believe  it  unfair.  It  is  absolutely  out  of  the  control 
of  the  Legislature  and  beyond  their  power  to  provide  any  additional  requirement. 

This  Constitution  prohibits  licenses  upon  railroads,  prohibits  everything  except  a 
one  per  cent,  tax  upon  the  gross  income.  What  I  say  is  that  in  the  course  of  ten 
years  it  may  be  demonstrated  that  it  is  not  fair,  just  or  equitable.  I  do  not  think  it 
is  fair  of  this  committee  to  say  that  you  must  take  this  or  nothing.  It  is  not  just  to 
the  individual  that  the  right  to  tax  the  railroad  shall  be  limited  by  the  Constitution 
and  that  the  right  to  tax  individuals  shall  be  unlimited,  that  their  taxes  may  be  increased 
to  an  unlimited  extent,  by  license  taxes,  income  taxes,  and  taxes  upon  valuation. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Louisa  (Mr.  R.  L.  Gordon). 

The  amendment  was  rejected. 

Mr.  Hancock:  I  move  to  strike  out  the  figures  "1913"  and  insert  the  figures  "1908" 
in  line  7. 

The  amendment  was  rejected. 
Section  15  was  read  and  adopted. 

Sec.  16.  Except  as  otherwise  provided  in  this  Constitution,  the  following,  and  no 
other  property  shall  be  exempt  from  taxation,  State  and  local: 

A.  Property  directly  or  indirectly  owned  by  the  State,  however  held,  and  property 
lawfully  owned  and  held  by  counties,  cities,  tov/ns,  or  school  districts,  used,  wholly  and 
exclusively  for  county,  city,  town  or  public  school  purposes. 

B.  Buildings,  with  the  land  they  actually  occupy,  and  the  furniture  and  furnishings 
therein  lawfully  owned  and  held  by  churches  or  religious  bodies,  and  wholly  and 
exclusively  used  for  religious  worship,  together  with  such  additional  adjacent  land  as 
may  be  reasonably  necessary  for  the  convenient  use  of  such  buildings  for  public  wor- 
ship. 

Mr.  Stuart:  There  are  several  members  of  the  committee  who  desire  to  submit 
an  amendment  to  that  subsection.  The  amendment,  as  I  understand  it,  is  in  the  hands 
of  the  gentleman  from  Rockingham  (Mr.  Keezell),  who  is  detained  from  this  body  this 
morning  by  sickness  in  his  family.  I  would  be  glad  if  this  subsection  could  be  passed 
by  temporarily. 

The  Chairman:  Unless  there  is  objection,  that  will  be  taken  as  the  sense  of  the 
committee. 

Sub-sections  C  and  D  were  adopted. 

E.  Real  and  personal  property  belonging  to  and  used  by  Young  Men's  Christian 
Associations,  orphan  or  other  asylums,  hospitals  and  nunneries,  which  are  not  conducted 
for  profi-t,  but  purely  and  completely  as  charities. 

Mr.  Pollard:  I  move  to  amend  sub-section  E  by  adding  after  the  word  "association" 
in  line  41,  the  words  "  and  other  similar  religious  associations."  My  purpose  in  moving 
the  amendment  is  that  there  are  two  denominations  that  do  not  affiliate  with  the 
Young  Men's  Christian  Association.  There  is  an  institution  in  the  city  of  Richmond 
called  McGill's  Catholic  Union  and  the  purpose  of  that  organization  is  precisely  the 
same  as  the  purpose  of  the  Young  Men's  Christian  Association:  They  have  property 
here  which  should  be  exempt  from  taxation  if  Y.  M.  C.  A.'s  are  exempted.  There  is 
also  an  organization  knovm  as  the  Young  Men's  Hebrew  Association,  who  own  or  may 
own  property  in  this  State. 

Mr.  Hamilton:  I  think  this  matter  is  entirely  covered  by  other  sections  of  the 
report. 

Mr.  Pollard:  I  would  like  to  have  the  gentleman  point  out  where  it  is  covered  by 
other  sections,  I  want  to  say  that  I  do  not  believe  that  McGill's  Catholic  Union  belongs 
to  any  particular  church  but  I  think  it  is  a  religious  organization  like  the  Young  Men's 
Christian  Association,  not  owned  by  any  church  as  such.  The  same  thing  is  true  of 
the  Jews.    I  hope  that  these  words  may  be  used  so  as  to  prevent  any  discrimination 


DEBATES  OE  THE  COXSTITETIOXAL  COXTEXTIOX  OE  YERGIXIA. 


2683 


■between  tlie  Tarious  religious  organizations.  I  am  sure  it  was  not  the  purpose  of  ttie 
committee  to  discriminate  against  any  religious  denomination. 

Mr.  Hamilton:  I  do  not  know  ^-hether  I  speak  for  the  committee  in  objecting  to 
this  amendment,  but  I  do  object  to  it  for  myself.  The  words  "•other  similar  religious 
associations''  are  too  indefinite.  You  will  have  the  Christian  Scientists  in  here  claiming 
exemption  from  taxation  and  all  sorts  of  "isms'"  claiming  to  be  religious  associations. 

Mr.  Pollard:  Does  the  gentleman  mean  to  say  that  if  the  Christian  Scientists  own 
property  they  ought  not  to  be  exempt  from  taxation  the  same  as  any  other  demonina- 
tion? 

Mr,  Hamilton:  I  don't  fhink  any  of  it  ought  to  be  exempt.  That  is  just  the  trouble. 
Anybody  who  calls  himself  or  herself  a  Christian  and  forms  some  sort  of  an  associa- 
tion will  come  in  and  ask  for  exemption  from  taxes.  The  great  trouble  has  been  that 
the  language  in  the  statute  has  not  been  sufficiently  definite  to  protect  the  State  from 
fraud  and  from  people  getting  exemptions  under  guises  and  pretenses.  If  we  enlarge 
this  language  we  simply  open  the  doors  again  and  throw  dovm.  the  bars.  The  truth  is 
nothing  ought  to  be  exempt  from  taxation;  but  our  age  has  not  yet  reached  the  point 
where  people  are  willing  to  accept  that  doctrine,  we  have  to  say  what  is  reasonable  and 
practicable  in  this  matter.    I  hope  the  amendment  will  be  voted  down. 

Mr.  Pollard:  I  fully  agree  with  the  gentleman  from  Petersburg  CMr.  Hamilton) 
that  there  should  be  no  exemptions  of  this  kind. — that  churches  on  principle  ought  not 
to  be  exempted  from  taxation.  But  I  do  say  that  it  is  totally  unjtist  to  exempt  the 
property  belonging  to  one  religious  denomination  and  not  exempt  that  belonging  to 
another.  If  we  are  to  have  exem^ptions  we  ought  to  hare  them  apply  uniformly  to  all 
religious  denominations.  There  is  a  Woman's  Christian  Association.  Does  the  gentle- 
man think  that  they  ought  to  be  subjected  to  taxation  when  the  Young  Men's  Christian 
Association  is  exempt.  If  we  are  going  to  have  exemptions  on  property  belonging  to 
religious  associations  it  ought  to  apply  equally  to  all  denominations.  If  the  language 
I  use  in  my  amendment  is  too  broad  I  would  be  glad  to  have  the  gentleman  modify  it. 
He  certainly  does  not  wish  any  such  Injustice  to  exist.  He  certainly  does  not  want 
the  Young  Men's  Association  in  the  Catholic  Church  to  be  taxed  when  the  same  asso- 
ciation in  the  Protestant  Church  is  free  of  taxation.  He  surely  cannot  mean  to  main- 
tain that  on  this  floor. 

VvTiat  I  object  to  is  discrimination.  If  you  will  put  them  all  on  the  same  footing  It 
will  satisfy  me,  but  I  do  object  and  protest  against  any  discrimination  in  this  Constitu- 
tion as  between  any  religious  denomination  whatsoever. 

Mr.  Hatton:  I  want  to  enter  my  protest  against  the  introduction  of  any  such 
broad  and  inefficient  language  into  this  exemption  clause.  If  you  put  this  language 
into  this  clause  I  predict  that,  in  a  little  while,  every  negro  society  in  this  Commonwealth 
will  be  one  of  the  "  similiar  religious  organizations."  You  know  as  well  as  I  do  that 
the  colored  brother  mixes  his  religion  with  everything.  He  mixes  it  with  his  politics. 
He  brings  it  into  all  of  his  relations:  and  you  will  find  that,  in  a  short  time,  everv  one 
of  these  societies  that  own  a  piece  of  property  will  be  one  of  these  "  similiar  religious 
organizations."  You  cannot  predict  any  limit  to  it.  For  my  part  I  want  to  enter  my 
protest  against  it. 

Air.  Aleredith:  I  want  to  say  that  the  committee  is  somewhat  divided  on  this  ques- 
tion. I  shall  vote  for  the  amendment  offered  by  the  gentleman  from  Richmond.  It  has 
been  suggested  by  the  gentleman  from  Danville  that  the  diS-culty  might  be  met  by 
striking  out  the  words  "  Young  Men's  Christian  Association."  It  is  not  for  me  to  imder- 
take  to  teach  religious  duties  to  you  gentlemen.  I  fear  I  have  not  a  sufficient  amount 
of  religion  to  satisfy  my  own  needs;  but  I  do  think  that  we  ought  to  consider,  as  to 
whether  or  not,  we  are  justified  in  exempting  institutions  of  secular  education,  and  yet 
not  exempt  institutions  for  religious  instruction.  That  is  a  thing,  I  think,  the  wickedest 
of  us  would  shrink  from,  and  yet  that  is  what  we  will  do  if  we  carry  through  the  sug- 
gestions.   Since  we  leave  in  all  the  institutions  like  colleges  and  educational  institu- 


2684 


DEBATES  OF  THE  CONSTITUTION^ AL  CONVENTION  OF  VIRGINIA. 


tions,  should  we  strike  out  the  Young  Men's  Christian  Association,  and  leave  out  the 
Woman's  Christian  Association,  and  property  held  by  the  Christian  Endeavorers  and 
the  St.  Andrew's  Brotherhood.  These  are  all  organizations  that  are  devoting  their 
lives  to  doing  good.  I  do  not  think  we  would  be  justified  in  making  such  distinction. 
While  I  think  there  might  be  some  danger  of  improper  institutions  getting  in,  under  the 
liberal  language  offered  by  the  gentleman  from  Richmond,  yet  I  think  we  had  better 
run  that  risk,  than  run  the  risk  of  doing  harm  by  putting  a  burden  upon  these  religious 
institutions,  which  we  do  not  put  on  secular  institutions.  We  cannot  justify  that.  I 
submit  that  we  ought  to  put  in  after  the  words  "  Young  Men's  Christian  Association," 
the  words  "  other  similar  religious  institutions,"  and  then  let  the  courts  say  whether 
they  are  similar  or  not.  We  can  depend  upon  the  court  to  protect  us;  and  even  if  we 
do  not  get  the  desired  protection,  we  had  better  bear  the  burden  than  put  ourselves  in 
that  position  of  drawing  such  an  unfortunate  discrimination. 

Mr.  Gordon:  Why  not  exempt  all  charitable  and  religious  institutions  and  leave 
out  the  word  "similar"?  All  of  the  great  charities  in  this  world  now  are  developed,  in 
my  opinion,  through  different  religious  associations,  and  whether  they  are  Christian  or 
not  does  not  make  any  difference.  We  know  that  there  are  a  great  number  that  are 
not  Christian  which  have  developed  large  charitable  objects,  and  have  expended  im- 
mense amounts  of  money  and  time  for  charitable  purposes.  Let  us  exempt  all  of  these. 
Do  not  let  us  make  any  distinction.  By  all  means  in  the  world,  do  not  let  us  confine 
our  Constitution  in  this  matter  to  the  exemption  of  certain  institutions  only,  such  as 
the  Young  Men's  Christian  Associations.  Whether  that  would  include  the  Woman's 
Christian  Association,  vvhich  Mr.  Pollard  has  just  mentioned. 

Mr.  Robertson:  Mr.  Chairman,  I  do  not  pretend  to  know  any  more  about  this 
Christian  Association  than  anybody  else  here;  but  it  does,  seem  to  me  that  we  ought 
not  to  determine  in  this  Constitution  between  what  is  generally  known  as  the  Pro- 
testant religion  and  the  Catholic  religion. 

Mr.  Fairfax:    W^e  do  not.    Don't  you  regard  the  Catholics  as  Christians? 

Mr.  Robertson:  Everybody  knows  that  the  Young  Men's  Christian  Association  is 
connected  witn  tne  Protestant  church.  If  you  select  that  as  a  subject  that  ought  to  be 
exempt  from  taxation  you  certainly  and  unquestionably  draw  a  distinction  between  the 
Protestant  church  and  the  Catholic  church,  as  the  gentleman  from  Richmond  (Mr. 
Pollard)  has  indicated.  I  think  that  the  gentleman  from  Danville  is  right,  and  that  we 
either  ought  to  strike  this  thing  out  entirely,  or  ought  to  make  it  so  broad  that  it  will 
cover  every  denomination. 

As  I  understand  it,  every  Christian  church  in  this  land  has  auxiliary  bodies  which 
undertake  to  do  the  work  that  the  church,  proper,  cannot  do.  Now,  whether  the  gentle- 
man from  Danville  (Mr.  Green)  is  right  in  his  view  about  the  Young  Men's  Christian 
Association  or  not,  I  do  not  know;  but  certain  it  is  that  all  churches  recognize  and 
encourage  these  auxiliary  societies  that  do  work  which  the  churches  cannot  do.  It 
does  seem  to  me  that  it  is  a  worthy  object  to  encourage  them  as  a  part  of  the  church, 
and  we  ought  not  to  single  out  one  particular  kind  of  auxiliary  church  work  or  one 
particular  organization  v/hich  everybody  knows  is  connected  with  the  Protestant  church 
and  exempt  that,  and  not  allow  similar  organizations  connected  Vv^ith  Catholic  churches 
or  other  churches  to  have  the  same  exemption. 

I  vv^ill  state,  candidly,  that  I  agree  with  my  friend  from  Petersburg  that  we  ought 
not  to  exempt  any  of  these  people.  I  believe  in  everybody  paying  taxes,  but  I  do  not 
believe  this  Convention  is  willing  to  adopt  that  policy.  It  does  seem  to  me  that  if  we 
are  going  to  have  any  exemption  we  ought  not  to  make  any  discrimination.  It  seems 
to  me  that  this  Convention  is  going  contrary  to  the  spirit  if  not  the  letter  of  another 
clause  of  our  Constitution,  in  which  we  say  that  we  will  not  grant  any  special  favor  to 
any  particular  denomination.  Everybody  knows  that  there  is  a  broad  line  of  cleavage 
between  the  Catholic  church  and  the  Protestant  church.  If  we  single  out  this  organi- 
zation, the  members  of  which  are  all  Protestants,  we  are  practically  making  a  distinc- 
tion in  this  Constitution,  between  Protestants  and  the  Catholics,  who  constitute  a  large 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


2685 


part  of  the  body  of  our  people.  I  do  not  tliink  ought  to  do  it.  I,  for  one,  would  be 
willing  to  strike  out  every  one  of  these  exemptions  and  make  everybody  pay  taxes.  I 
believed  that  where  people  are  protected  by  law  they  ought  to  be  willing  to  pay  for  that 
protection.  But  when  we  get  into  exemptions,  the  exemptions  ought  to  be  fair  and 
equal  to  all  denominations,  and  this  Convention  ought  not  to  make  any  distinctions 
between  them. 

Mr.  Pedigo:  Do  not  the  Jews,  who  are  not  Christians  at  all  and  do  not  pretend 
to  be  Christians,  have  as  fine  charitable  organizations  as  any  other  denomination? 

]\Ir.  Robertson:  If  there  is  anything  in  which  the  Jews  set  a  good  example,  in 
my  opinion,  it  is  in  the  matter  of  charity.  I  do  not  think  they  ought  to  be  discriminated 
against,  so  far  as  charitable  and  religious  matters  are  concerned. 

Mr.  Hamilton:  I  think  there  is  a  misapprehension  here  in  supposing  that  any 
discrimination  is  made  against  the  Catholic  church  or  any  other  church.  That  certainly 
was  not  my  purpose  and  I  believe  it  was  not  the  purpose  of  anjr  member  of  the  com- 
mittee. This  is  a  subject  which  has  to  be  very  carefully  treated,  so  far  as  the  language 
to  be  put  in  here  is  concerned,  in  order  to  show  the  meaning  of  the  entire  section.  The 
reason  the  section  is  put  into  the  Constitution  is  that  heretofore  the  Constitution 
-  allowed  the  Legislature  to  make  certain  exemptions,  describing  the  character  of  tEe 
exemptions  in  a  general  way.  Under  that  constitutional  provision  the  Legislature,  try- 
ing its  best  to  do  its  duty,  made  a  statute,  and  as  far  as  possible  we  have  followed  that 
'  statute,  only  making  the  language  more  accurate.  But  we  found  that  there  were  some 
twenty-five  or  thirty  million  dollars'  worth  of  property  in  this  State  exempt  from  taxa- 
tion. That  was  too  much.  There  were  a  great  many  frauds  perpetrated  on  the  State. 
Immense  numbers  of  these  State  insurance  compa^nies  were  doing  business  nominally 
under  the  gnise  of  benefit  associations.  A  great  many  people  said  they  were  incor- 
porated seminaries  and  institutions  of  learning  where  the  money  all  went  to  one  man, 
and  it  was  really,  in  substance  and  truth,  a  private  enterprise.  In  order  to  correct 
these  troubles  and  to  bring  under  taxation  property  wMch.  everybody  would  admit 
ought  to  be  taxed,  we  have  had  to  be  very  careful  in  the  language  used  in  this  section. 

Now,  the  use  of  these  words,  the  Young  Men's  Christian  Association,"  seems  to 
be  the  only  criticism  made  and  that  is  made  upon  the  ground  that  it  is  a  discrimination 
against  other  denominations  or  against  some  other  associations.  I  have  no  interest  in 
the  Young  ]^vlen's  Christian  Association.  I  entertain  very  much  the  same  view  of  them 
as  the  gentleman  from  Danville  does.  I  do  not  think  any  of  them  should  be  exempt. 
But  we  have  to  be  practical,  gentlemen.  We  cannot  carry  our  theories  out  fully.  We 
must  do  whatever  we  are  able  to  do.  in  the  line  of  what  is  best,  in  making  this  Constitu- 
tion. That  has  been  recognized  all  through.  I  do  not  suppose  any  man  here  has  been 
able  to  get  his  whole  theory  approved  and  carried  out.  I  would  be  glad  if  the  whole 
section  as  to  exemptions,  except  the  first  clatise.  should  be  stricken  out.  It  is  perfectly 
useless  to  hope  for  that.  You  would  have  a  revolution  in  the  S'tate  if  you  taxed  the 
churches  of  the  State.  The  people  have  been  accustomed  to  that  exemption  too  long. 
There  are  certain  really  benevolent  and  charitable  institutions  not  conducted  for  profit 
which  ought  to  be  exempt  if  an:.i:hing  is  exempt.  Of  course  the  property  in  the  munici- 
palities and  cities  and  counties  should  be  exempt  as  governmental  agents. 

I  want  to  say  to  the  gentleman  from  Richmond  Olr.  Pollard)  that  if  he  will  look 
in  sub-section  D.  in  line  24.  he  will  see  that  it  reads:  "buildings  with  the  land  they 
actually  occupy  and  the  furniture,  furnishings,  books  and  instruments  therein  belonging 
to  and  used  by  public  libraries  not  conducted  for  profit,  and  not  belonging  to  churches 
or  to  incorporated  colleges."  The  word  "churches"  was  put  in  there,  although  there 
was  another  section  with  regard  to  church  property,  and  it  was  put  in  for  the  express 
purpose  of  giving  to  the  Catholic  church  the  same  exemptions  that  were  given  to  incor- 
porated Protestant  churches.  The  property  of  the  Catholic  church  is  universally  held, 
under  their  system,  by  the  bishop  of  the  diocese.  It  is  recorded  in  his  name.  That  is 
not  an  incorporated  institution.    Therefore  if  we  had  treated  those  churches  as  incor- 


2686 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


porated  churches  we  would  have  left  the  Catholic  churches  out.  We  have  been  careful 
to  provide  that  the  Catholic  churches  shall  have  every  right  that  the  Protestant 
churches  have. 

Further  down  we  say  "  property  belonging  to  and  used  by  the  Young  Men's  Christian 
Associations."  We  do  not  mean  to  say  that  is  the  only  property  that  can  be  exempted. 
We  have  tried  to  cover  all  of  the  various  things  that  we  thought  the  prejudices  of  our 
day  and  generation  would  require  to  be  exempt,  such  as  orphan  or  other  asylums, 
hospitals  and  nunneries,  v/hich  are  not  conducted  for  profit,  but  purely  and  completely 
as  charities.    We  are  bound  to  guard  this  point  or  somebody  will  defraud  the  State. 

I  have  no  objection  to  including  here  the  Young  Men's  Christian  Association  and  the 
Jewish  or  any  other  association,  which  is  a  purely  religious  association;  but  I  do  not 
want  it  to  be  fived  so  that  everybody  can  get  up  a  religious  association,  establish  a 
church  of  his  own  and  call  it  a  religion,  and  get  exemption  from  taxation  that  is  not 
right  and  proper.  We  have  got  to  guard  against  it  in  the  Constitution  or  it  will  be 
guarded  against  nowhere.  What  is  a  religion?  Nobody  can  answer  authoritatively  and 
definitely.  It  depends  upon  the  man's  own  views,  if  he  is  sincere  and  earnest,  in  con- 
nection with  matters  in  relation  to  his  future  condition.  What  is  a  religion?  You  can- 
not tell.  So  when  you  say  "other  religious  associations"  you  simply  throw  open  the 
door  to  fraud,  by  the  use  of  such  indefinite  language.  I  have  no  objection  to  putting  in 
here  words  to  cover  the  cases  that  the  gentleman  from  Richmond  knows  of,  the  Young 
Men's  Christian  Association,  the  Young  Men's  Jewish  Associations,  the  McGill  Associa- 
tion; but  let  us  be  definite  in  whatever  we  do  provide  in  this  article. 

Mr.  Pollard:  Will  the  gentleman  tell  us  how  the  use  of  the  words  "other  similar 
religious  associations,"  following  the  words  "  Young  Men's  Christian  Associations," 
could  possibly  do  any  harm? 

Mr.  Hamilton:    I  thought  I  had  been,  telling  you  that  for  the  last  fifteen  minutes. 

Mr.  Withers:  May  I  suggest  to  the  gentleman  from  Petersburg  that  under  the 
language  of  the  gentleman  from  Richmond  the  Elijah  Dow  Association  would  undoubt- 
edly come  in. 

Mr.  Hamilton:  I  wish  to  say  that  I  do  not  know,  and  no  other  man  in  this  body 
knows,  accurately  and  definitely,  what  "religious  associations"  means.  We  cannot  tell 
what  will  come  in  under  that  language  and  what  will  not  come  in  under  it. 

Mr.  Meredith:  If  you  specify  a  certain  thing,  as  you  do  here  in  the  case  of  the 
Young  Men's  Christian  Association,  and  then  you  say  "  and  other  similar  religious  as- 
sociations," why  can't  you  leave  it  to  the  court  to  decide  v/hat  is  a  similar  association, 
just  as  you  leave  them  the  decision  whether  the  land  is  necessary  for  the  "covenient 
use"  of  educational  institutions.  You  get  the  protection  of  the  court.  You  know  what 
the  Young  Men's  Christian  Association  is,  and  you  can  get  the  construction  of  the  court 
as  to  the  meaning  of  the  word  "similar  religious  institutions"  why  is  not  that  sufficiently 
specific? 

Mr.  Hamilton:  Mr.  Chairman,  it  is  not  sufficiently  specific,  according  to  my  mind, 
for  if  vv^e  cannot  define  at  all  what  we  mean,  how  can  we  hope  that  the  courts  will 
settle  it  for  us?  If  we  do  not  know  what  we  want,  and  cannot  definitely  state  it  in 
general  terms,  but  must  let  the  court  construe  it,  is  not  the  court  making  this  Constitu- 
tion instead  of  our  making  it?  I  would  have  no  objections  to  striking  out  the  language 
"  the  Young  Men's  Christian  Association,"  and  I  would  have  no  objection  to  putting  in 
"any  simJlar  associations"  we  know  of  by  name  and  that  we  approve  of  as  associations. 
But  we  might  get  the  Christian  Scientists,  we  might  get  the  Elijah  Dow  Association, 
and  I  don't  know  who  we  might  not  get.  Then  the  courts  will  have  to  determine  what 
is  a  similar  religious  association.    You,  I  am  sure,  do  not  want  that. 

Mr.  Pollard:  Would  we  not  have  the  court  construe  what  is  "a  Christian  Associa- 
tion" if  we  insert  the  words  "  Christian  Association?" 

Mr.  Hamilton:  I  believe  that  what  we  call  the  "Young  Men's  Christian  Associa- 
tion" is  reasonably  definite.    People  differ  in  their  opinion  as  to  whether  it  is  a  valuable 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA.  2687 


thing  or  not,  but  they  know  what  it  is,  at  any  rate.  I  do  not  think  there  would  be  much 
harm  in  having  the  court  construe  that,  but  if  you  say  "  other  similar  religious  organi- 
zations," if  I  was  on  the  bench  I  could  not  tell  what  you  meant.  You  may  know,  but  I 
do  not. 

Mr.  Braxton:  It  seems  to  me  this  whole  discussion  demonstrates  the  unwisdom  of 
putting  into  this  Constitution  any  of  the  exemptions  covered  by  subsections  d,  e,  f  and 
g.  I  do  not  know  whether  this  is  the  proper  time  now,  from  a  parliamentary  stand- 
point, to  introduce  an  amendment  to  that  effect  but  I  would  like  to  give  notice  that  I 
shall  move  to  strike  out  that  section.  It  is  with  great  hesitancy  that  I  move  to  amend 
this  report;  but  it  does  seem  to  me  that  every  argument  that  can  be  adduced  here,  if 
carried  out  to  its  logical  conclusion,  will  demonstrate  that  there  ought  not  to  be  any 
exemption  from  taxation  unless  it  be  property  owned  by  the  government,  some  of  the 
subordinate  department  of  the  government,  church  property  and  burying  grounds. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Richmond. 

The  amendment  was  adopted — there  being,  on  a  division,  ayes  38,  noes  16. 

Mr.  Stuart:  Mr.  Chairman,  according  to  notice  just  given,  I  desire  to  call  the 
attention  of  the  committee,  for  a  moment  to  sub-section  b,  section  16,  line  11.  I  move 
to  amend  by  inserting,  after  the  word  "  ownership,"  the  words  "and  for  the  residence 
of  the  minister  of  such  church  or  religius  body.    So  that  the  section  will  read: 

Buildings,  with  the  land  they  actually  occupied,  and  the  furniture  and  furnishings 
therein,  lawfully  owned  and  held  by  churches  or  religious  bodies,  and  wholly  and 
exclusively  used  for  religious  worship  or  for  the  residence  of  the  minister  of  such 
church  or  religious  body. 

It  may  be  proper  to  state,  Mr.  Chairman,  that  several  members  of  this  committee 
hold  this  view,  and  reserved  the  right  to  introduce  this  amendment  and  to  advocate  it. 
I  presume  there  is  ample  room  for  a  difference  of  opinion  on  the  question  of  whether 
or  not  there  should  be  any  exemption  from  taxation  for  any  purpose.  I  say  this  for 
the  reason  that  there  are  men  on  this  floor  for  whom  I  entertain  the  highest  respect 
and  regard  who  announce  the  proposition  that  they  do  not  believe  in  exemptions  of 
any  kind,  either  for  religious  or  educational  institutions  or  other  purposes.  It  is  abso- 
lutely clear,  however,  to  my  mind  that  there  is  no  duty  which  presses  upon  any  repre- 
sentative body  with  more  force  than  the  upholding  of  the  efforts  of  the  religions  denomi- 
nations of  this  State,  working  as  they  do  as  coadjutors  of  our  civil  authorities  in 
upholding  law  and  morals.  I  venture  the  opinion  that  the  execution  of  our  laws,  and 
especially  our  criminal  laws,  be  they  ever  so  vigorous  and  efficient,  find  their  chief 
support  in  the  powerful  influence  for  good  of  the  religious  denominations.  I  venture 
further  to  say  that  in  all  this  Commonwealth  those  communities  in  which  these  religious 
denominations  exert  the  most  powerful  influence  are  the  communities  in  which  the  law 
is  best  administered  and  held  in  the  highest  esteem.  So  that,  if  there  were  no  higher 
ground  for  upholding  the  hands  of  these  instrumentalities  for  good,  it  would  be  justified 
by  the  fact  that  we  are  thus  upholding  the  law.  I  am  one  of  those  who  believe  that 
the  houses  of  public  worship  should  be  exempt  from  taxation.  I  am  one  of  those  who 
believe  that  the  devil  already  has  too  much  start  of  us  and  that  we  had  better  not  tax 
the  agencies  that  are  set  on  foot  to  circumvent  him.  If,  then,  to  be  brief,  it  is  proper 
to  exempt  from  taxation  the  houses  of  worship,  it  is  equally  proper  to  exempt  those 
buildings  which  are  necessarily  incident  to  such  houses  of  worship.  Speaking  for  the 
rural  members  of  this  Convention,  it  is  well  known  to  some,  at  least,  of  these  members 
that  there  are  congregations  covering  territories  which  embrace  in  some  instance  one- 
half  to  two-thirds  of  an  entire  county.  There  may  be  two  or  three  churches,  or  half  a 
dozen  churches  embraced  in  the  same  denominational  territory.  These  churches  meet 
and  take  subscriptions  and  build  what  are  known  in  the  Methodist  church  as  parsonages. 
These  houses  so  built  are  occupied  by  the  ministers  in  charge  of  the  several  churches. 


2688 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Wherever  these  conditions  exist  it  is  a  constant  struggle  for  the  membership  of  the 
churches  to  meet  their  necessary  dues  for  purely  church  purposes.  If  it  should  be  the 
will  of  this  Convention  to  impose  a  tax  upon  those  things  which  these  people  have  here- 
tofore regarded  as  their  Christian  duty  to  erect  and  maintain,  it  would  seem  to  me  to 
be  a  public  utterance  on  the  line  of  treating  these  instrumentalities  as  on  a  par  with 
ordinary  industrial  and  business  undertakings  generally.  I  think  it  will  readily  occur 
to  each  member  of  this  Convention,  and  especially  to  those  of  them  who  live  in  the 
country,  that  these  parsonages  are  as  much  the  property  of  the  church,  as  much  an 
adjunct  to  church  influence  as  the  edifice  itself.  If  we  declare  the  principle  that  the 
edifice  should  not  be  taxed,  it  would  necessarily  follow  that  the  necessary  adjunct, 
that  is,  the  parsonage,  the  place  of  residence  of  the  minister,  should  likewise  be  exempt 
from  taxation,  unless  we  intend  to  impose  this  additional  charge  upon  already  heavily 
burdened  communities  for  the  upholding  of  religious  influences. 

I  trust,  sir,  that  it  may  be  the  will  of  this  committee  to  exempt  from  taxation  church 
edifices  and  all  the  incidental  adjuncts  of  the  church  for  the  betterment  of  the  spiritual 
condition  of  mankind. 

Mr.  Keezell:  I  am  one  of  the  members  of  the  Committee  on  Taxation  and  Finance 
who  agrees  with  the  gentleman  we  ought  to  exempt  parsonage  property  belonging  to 
churches  from  taxation.  Upon  the  question  as  to  whether  it  is  proper  to  exempt  any 
property  at  all  from  taxation,  I  am  not  sure  that  I  agree  altogether  with  what  he  says. 
It  may  be  possible  that  I  more  nearly  agree  with  the  gentleman  from  Petersburg.  But 
this  committee  has  made  exemptions.  They  have  said  that  church  property,  proper, 
should  not  be  taxed  and  that  property  used  for  educational  purposes  and  various  chari- 
table instittitions  should  be  exempt  from  taxation.  Having  adopted  the  principle  of  exemp- 
tions it  seems  to  me  there  can  be  no  reasonable  ground  for  not  including  in  the  line  of 
exemptions  the  parsonage  property  of  churches.  I  am  not  so  well  acquainted  with  the 
matter  in  the  cities;  but  the  gentleman  from  Russell  has  certainly  expressed  my  views 
and  the  result  of  my  observations  so  far  as  conditions  in  the  country  are  concerned. 
It  is  usually  the  case  in  the  country  that  these  parsonages  are  erected  by  the  untiring 
efforts  of  the  good  women  of  the  various  communities,  and  at  great  sacrifice  by  these 
noble  and  devoted  people.  For  us  now  to  undertake  to  impose  a  tax  upon  this  class  of 
property,  in  my  opinion,  would  be  the  cause  of  more  resentment  than  there  would  be 
if  we  were  to  make  no  exemptions  whatever.  The  very  fact  tliat  you  exempt  one  class 
of  church  property  and  do  not  exempt  another  class,  which  in  all  human  probability 
has  been  erected  at  more  sacrifice  than  any  of  the  other  agencies  of  the  church  we 
have  to  deal  with,  and  are  as  necessary  as  the  church  itself  in  the  preaching  of  the 
Gospel,  cannot  avoid  raising  a  cry  of  dissent  among  the  people. 

What  have  we  done  already?  Section  d  has  been  passed,  and  in  that  section  we 
have  provided  an  exemption  for  the  buildings  used  as  residences  by  the  officers  or 
instructors  of  educational  institutions.  You  have  put  in  Section  d  a  provision  that  the 
residences  of  the  professors  and  officers  of  educational  institutions  shall  be  exempt 
for  taxation.  You  have  put  them  upon  a  higher  plane  than  you  do  the  residences 
of  the  ministers  of  the  Gospel. 

I  do  hope  that  this  committee  will  include  in  these  exemptions  the  parsonage 
property  of  the  churches  for  the  reasons  I  have  mentioned.  It  ought  to  be  done,  if  you 
are  going  to  have  any  exemptions  at  all.  It  ought  to  be  done  for  the  further  reason 
that  I  believe  if  you  do  not  do  it,  it  will  cause  more  unfavorable  comment  than  any 
other  one  thing  that  could  happen,  so  far  as  these  exemptions  are  concerned.  It  ought 
to  be  done  as  a  m.atter  of  policy,  because  the  amount  of  taxes  you  would  get  would  be 
out  of  all  proportion  to  the  amount  of  dissatisfaction  you  would  create. 

Mr.  Garnett:  Mr.  Chairman,  as  a  member  of  the  Finance  Committee,  I  agree  with 
the  two  gentlemen  who  have  just  spoken  on  the  question  now  before  this  body.  I  agree 
with  my  friend,  the  gentleman  from  Russell  (Mr.  Stuart),  and  I  heartily  endorse  the 
idea  of  the  committee  in  exempting  church  property,  proper,  from  taxation.    The  prop- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2689 


erty  we  now  want  to  exempt  is  a  necessary  adjunct  for  the  support  of  the  churches  in 
the  country.  Without  a  parsonage  it  is  impossible  to  elect  good  preachers,  and  without 
preachers  the  churches  go  down.  We  in  the  country  feel  and  know  that  this  work  is 
largely  the  work  of  the  women,  that  it  is  a  work  of  self  sacrifice,  and  the  work  of  the 
best  people  on  earth.  The  Christian  women  of  the  State  of  Virginia  to-day  are  respon- 
sible, more  than  any  other  class  of  people,  for  the  erection  of  parsonages  to  the  churches. 
I  say  that  I  hope  it  will  be  the  pleasure  of  this  committee  to  say  to  the  Christian  women 
of  the  State  of  Virginia  that  we  want  to  stand  by  them  in  this  matter,  to  encourage 
them  in  the  discharge  of  their  duty  and  in  the  effort  they  are  making  for  the  civiliza- 
tion and  Christianization  of  the  people  of  this  Commonwealth.  If  we  exempt  the 
residences  of  the  professors  of  colleges,  still  more  ought  we  to  exempt  the  parsonages, 
which  are  the  residences  of  the  ministers  who  cultivate  the  hearts  of  the  people.  We 
not  only  want  these  educational  institutions  exempt,  but  we  want  that  which  comes 
nearer  home,  the  education  of  the  heart  to  be  brought  to  the  people  by  the  ministers  of 
the  Gospel  of  Jesus  Christ  to-day  in  the  State  of  Virginia.  We  ought  to  say  to  these 
women  of  the  State,  "  We  do  not  propose  to  discourage  you  in  this  matter,  but  we  will 
help  you  all  we  can." 

I  hope  it  will  be  the  pleasure  of  the  committee  to  support  the  amendment. 

Mr.  Braxton:  Mr.  Chairman,  I  would  like  to  offer  an  amendment  to  the  amendment 
offered  by  the  gentleman  from  Russell  by  restricting  the  value  of  the  parsonage  prop- 
erty. So  far  as  the  argument  applies  to  poorer  churches  it  seems  to  me  that  it  is  perfectly 
sound  and  I  would  be  willing  to  vote  for  his  amendment,  but  so  far  as  it  may  be 
extended  to  exempting  from  taxation  parsonages  in  the  larger  cities,  which  I  am  told 
sometimes  are  valued  at  fifteen,  twenty  or  twenty-five  thousand  dollars,  I  do  not  think 
it  is  commendable.  When  the  churches  are  poor  and  where  the  parsonages  are  acquired 
by  contributions  of  poor  people,  such  as  have  been  referred  to  by  my  friend  from  Rus- 
sell and  Rockingham,  it  is  commendable.  But  if  the  congregations  are  rich  enough  to 
have  churches  worth  fifty  or  a  hundred  thousand  dollars  and  parsonages  worth  from 
ten  to  thirty  thousand  dollars,  I  think  they  ought  to  pay  taxes  on  their  value  in  excess 
of  a  reasonable  amount.  I  would  suggest  that  a  limit  of  $3,000  be  fixed  as  the  value  of 
the  parsonage  to  be  exempted  from  taxation  and  that  a  further  provision  should  be 
made  that  the  property  should  be  used  exclusively  as  a  residence  for  the  preacher.  If 
my  friend  will  accept  that  amendment,  I  for  one,  will  be  verj^  glad  to  support  his 
amendment.    I  think  it  would  limit  the  exemption  to  meritorious  cases. 

Mr.  Stuart:    What  is  the  amount  of  the  limitation  suggested? 

Mr.  Braxton:    I  suggested  §3,000. 

Mr.  Stuart:    I  will  accept  that  or  any  other  reasonable  sum. 

Mr.  Pollard:  If  you  are  going  to  limit  the  value  of  the  parsonage  that  is  exempt 
from  taxation,  ought  you  not,  on  the  same  principle,  to  limit  the  value  of  church  prop- 
erty that  is  exempt? 

:\Ir.  Braxton:  I  think  the  congregation  that  can  afford  to  build  and  maintain  a 
church  worth  a  hundred  thousand  dollars  can  afford  to  pay  taxes  on  it.  That  is  my 
personal  judgment.  I  think  that  the  value  of  a  church  ought  to  be  limited  to  a  reason- 
able sum. 

islv.  Garnett:  So  far  as  I  am  concerned,  I  am  in  favor  of  the  preacher  having  just 
as  good  a  house  to  live  in  in  the  city,  as  any  member  of  his  congregation.  I  do  not  see 
why  we  should  not  give  him  a  good  a  house  to  live  in  as  the  richest  member  of  his 
congregation.  I  believe  that  a  good  preacher  is  the  best  man  on  earth  and  I  will  say 
here  that  while  I  am  not  a  preacher  I  would  rather  be  a  good  preacher  than  king  of 
the  universe. 

;Mr.  Thom:  I  did  not  expect  to  say  anything  on  this  subject;  but  the  discrimina- 
tion sought  to  be  introduced  by  the  amendment  which  has  been  proposed  calls  for  some 
attention  on  my  part.  I  have  heard  the  suggestion  made  that  there  are  rich  churches 
in  the  State  of  Virginia.  If  there  are  any  such  I  do  not  happen  to  know  them.  Because 
there  is  a  handsome  edifice  dedicated  to  the  service  of  God,  that  by  no  means  indicates 


2690  DEBATES  OF  THE  CON"STITUTIONxiL  CONVENTION  OF  VIRGINIA. 

that  there  has  not  been  as  much  effort,  as  much  self-denial  and  as  much  Christian 
endeavor  to  erect  that  edifice,  on  the  part  of  the  city  congregation,  as  it  takes  to  erect 
a  less  handsome  one  on  the  part  of  a  country  congregation.  I  think  that  any  gentle- 
man who  has  had  any  experience  with  the  contributions  for  charitable  and  religious 
purposes  in  the  city  will  understand  that  as  much  draft  is  made  upon  the  Christian 
people  in  the  city  for  the  purpose  of  creating  and  maintaining  the  religious  instrumen- 
talities as  is  made  upon  the  poorer  people  in  the  country. 

I  have  lived  in  both  communities.  I  have  known  of  the  contributions  of  the 
Christian  people  in  the  country  and  I  have  likewise  known  of  the  contribution  of  similar 
classes  of  people  in  the  city;  and  where  ten  dollars  is  given  in  the  country  probably 
two  hundred  and  fifty  dollars  is  required  to  be  given  by  the  person  similarly  situated 
in  the  city.  Every  handsome  stone  and  every  handsome  ornament  in  a  Christian 
church  in  the  city  represents  self-denial  just  as  much  as  the  plainer  edifice  in  the 
country  represents  self-denial.  There  is  as  much  effort  on  the  part  of  the  Christian 
preachers  and  on  the  part  of  Christian  women  and  on  the  part  of  all  religious  co-workers 
in  the  city  to  maintain  what  is  in  accord  with  the  requirements  of  modern  practices  in 
the  cities  in  religious  institutions  as  there  is  in  the  country.  The  demands  for  charity 
are  immensely  greater  in  the  city.  These  very  people  that  are  maintaining  these  hand- 
some churches  in  the  city  are  sending  their  contributions  of  charity  to  less  favorable 
communities.  I  am  prepared  to  say  that  as  much  effort  is  being  made  on  the  part  of 
the  Christian  people  in  the  cities  to-day  to  do  what  they  are  doing  for  the  good  of  reli- 
gion, as  is  required  of  the  people  in  the  country  to  do  what  they  are  doing.  The  whole 
matter  is  relative.  It  seems  to  me  that  there  is  no  such  distinction  between  religious 
bodies  as  to  justify  a  Constitutional  Convention  in  saying  that  one  is  rich  and  the  other 
is  poor.  The  question  is  wliat  are  they  doing  relatively  to  their  means?  I  do  not  be- 
lieve that  there  is  any  distinction  between  what  ar  known  as  the  wealthy  congregation 
and  the  poor  congregation  in  that  regard. 

I  shall  therefore  vote  against  making  any  such  discrimination.  I  am  willing  to 
say  that  the  church  parsonage  in  the  city,  which  is  reasonably  necessary  for  the 
occupation  and  com^fort  of  the  minister's  family  may  be  exempt  from  taxation,  just  as 
I  am  willing  to  say  that  the  plainer  edifice  suitable  to  the  needs  of  the  country  pastor 
in  the  country  may  be  exempt;  but  to  say  that  there  shall  be  this  distinction  between 
them  seems  to  me  to  savor  of  the  grossest  injustice.  I  am  very  sorry  that  my  friend 
from  Russell  (Mr.  Stuart)  has  accepted  the  amendment  offered  by  my  friend  from 
Augusta  (Mr.  Braxton). 

Mr.  Braxton:  When  I  made  the  suggestion  just  now  my  friend  from  Russell,  act- 
ing without  mature  reflection,  accepted  the  amendment.  He  states  to  me  now  that  Ke 
does  not  desire  to  accept  it,  so  I  will  withdraw  the  amendment  for  the  present  and 
reserve  the  right  to  introduce  it  later  on. 

Mr.  Hamilton:  On  behalf  of  the  committee,  I  hope  that  you  will  not  vote  for  the 
amendment  of  the  gentleman  from  Russell.  This  matter  has  been  very  carefully  and 
fully  considered  by  the  committee.  I  do  not  pretend  to  claim  that  the  committee  is 
Is  omniscient  and  allwise;  but  the  belief  of  the  committee  was,  and  I  believe  the  facts 
sustain  it,  that  whenever  a  preacher  is  given  the  use  of  a  parsonage  it  is  reckoned  as 
a  partoof  his  salary,  in  dollars  and  cents.  He  pays  an  income  tax  upon  his  limited 
salary,  and  there  is  no  reason  why  the  dwelling  house,  which  is  given  to  him  as  a  part 
of  his  salary,  should  not  pay  taxes,  just  as  any  other  property  in  the  State  does.  It  is 
a  fact,  as  I  am  told  by  all  the  church  members  that  I  ever  talked  to,  that  if  the  minister 
of  any  church  is  furnished  with  a  residence  it  is  counted  as  so  much  money,  and  is 
charged  to  him  as  a  part  of  his  salary. 

As  I  understand  it.  when  a  church  has  a  parsonage,  it  is  nearly  always  able  to 
give  a  better  salary  than  one  which  does  not  have  a  parsonage  because  the  house  is 
thrown  in  as  a  part  of  the  salary.  It  is  a  part  of  the  salary,  and  nothing  more,  nothing 
less.    I  do  not  believe  that  the  church  members  I  have  talked  to  in  the  city  think  it  is 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2691 


right  to  exempt  parsonages  from  taxation.  They  believe  that  the  houses  devoted 
exclusively  to  religious  worship  should  be  exempt,  but  they  do  not  ask  any  more  than 
that.  I  am  told  that  very  few  churches  in  the  city  of  Richmond  have  parsonages  and 
furnish  them  to  their  ministers.  If  we  adopt  this  amendment  the  result  will  be  that 
there  will  be  discrimination.  It  will  be  an  inducement  to  the  churches  to  buy  realty, 
and  take  it  out  of  the  taxable  list,  and  by  so  much  reduce  the  revenues  of  the  State. 

There  is  one  view  in  which  it  seems  to  me  an  exemption  should  be  made.  If  you 
treat  the  preacher  as  a  teacher,  and  you  exempt  the  house  of  a  professor  of  an  educa- 
tional institution.  I  think  there  should  be  no  discrimination  made,  and  that  you  should 
exempt  the  residence  also  of  the  preacher.  But  there  certainly  should  not  be  unlimited 
exemption. 

If  this  exemption  should  be  made,  there  ought  to  be  a  limit  placed  upon  the  amount 
of  property  to  be  exempt.  I  do  not  think  there  is  any  difference  in  principle,  whether 
the  parsonage  is  a  small  one  or  a  large  one,  whether  it  has  been  gotten  together  by  the 
efforts  of  the  blessed  women,  who  are  very  poor,  or  by  other  people.  I  believe  it  is 
all  wrong.  I  believe,  however,  that  we  should  not  have  the  exemption  unlimited.  There 
is  a  possibility  that  this  thing  may  grow  to  very  serious  proportions.  Some  people  are 
getting  very  wealthy  in  this  country,  and  they  are  disposed  to  endow  churches  largely. 
They  are  disposed  to  give  them  money  to  build  enormous  churches,  and  expensive 
buildings  to  be  connected  with  those  churches.  Every  time  that  is  done,  you  take  some- 
thing away  which  ought  to  contribute  to  the  expenses  of  the  government.  There 
ought  to  be  a  limit  to  this  exemption. 

I  believe  that  no  amendment  without  a  limit  with  respect  to  these  parsonages  ought 
to  pass. 

Mr.  Meredith:  I  have  just  one  word  to  say  to  the  committee.  Representing,  as 
I  do,  the  city  which  has  perhaps  some  of  the  largest  parsonages  in  the  State,  and  which 
are  more  valuable  than  those  in  other  sections  of  the  State,  I  want  to  say  that  I  am 
heartily  in  favor  of  the  committee's  report.  I  believe  you  will  find  in  this  city  as  many 
parsonages  of  considerable  value  as  you  will  in  any  other  portion  of  the  State.  You 
are  not  making  any  discrimination  when  you  say  any  church  or  any  house  of  public 
worship  shall  be  exempt.  You  put  them  all  on  the  same  footing.  But  when  you  add 
that  the  residence  of  the  pastor  or  minister  of  the  congregation  shall  be  exempt,  it  is 
the  rich  congregation  which  gets  the  benefit.  The  congregation  that  can  afford  to  buy 
a  house  gets  a  benefit  over  the  congregation  that  is  unable  to  buy  one.  I  say  that  is 
all  unjust  discrimination.  It  is  a  discrimination  in  favor  of  the  wealthier  congregation. 
That  is  the  effect  of  the  amendment  offered  by  the  gentleman  from  Russell.  I  know  it 
can  be  said  that  the  parsonage  helps  to  pay  the  minister's  salary,  that  it  helps  the 
church  in  that  way.  But  you  see,  and  I  call  your  attention  to  the  fact,  that  when  you 
allow  the  parsonage  to  be  relieved  from  taxation  you  are  giving  the  advantage  to  the 
wealthier  congregation  over  the  one  that  cannot  afford  to  pay  for  its  parsonage.  I 
respectfully  submit  that  you  ought  to  put  them  all  on  the  same  footing.  Say  that  a 
church,  no  matter  what  it  may  be  worth,  shall  be  exempt,  but  that  the  parsonage,  no 
matter  what  it  may  be  worth,  shall  not  be  exempt.  If  you  think  you  can  pay  for  a 
stone  church  in  which  to  worship,  we  will  exempt  that.  If  you  are  only  able  to  pay 
for  a  wooden  edifice  in  which  to  worship,  we  exempt  that.  Whatever  it  is,  we  exempt 
it  simply  because  it  is  a  place  in  w^hich  you  worship.  We  put  you  all  on  the  same 
footing.  But  when  you  add  to  that  another  piece  of  property,  you  are  giving  to  those 
who  can  afford  to  pay  for  the  additional  piece  of  property  an  advantage  over  those  who 
cannot  afford  to  pay  for  such  a  piece.  I  say  that  is  not  fair,  and  that  it  is  not  necessary. 
We  ask  you  to  approve  the  committee's  report,  as  we  think  we  have  been  as  liberal  as 
we  ought  to  be. 

Mr.  Dunaway:  Mr.  Chairman,  when  this  matter  was  first  introduced,  I  had  great 
doubt  in  my  own  mind  as  to  how  I  should  cast  my  vote.  On  reading  over  the  report  of  the 
committee,  soon  after  it  was  printed,  I  noticed  that  parsonages  were  not  exempt.  I 


2692 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


had  a  conversation  with  a  member  of  the  committee  upon  that  subject,  and  my  mind 
was  still  undecided  upon  the  question.  I  said  that  I,  at  least,  would  not  introduce  an 
amendment  to  this  effect.  Ever  since  the  discussion  began  this  morning  I  have  had 
some  hesitation  about  the  matter,  but  I  have  at  last  decided  that  I  will  give  my  vote 
to  the  amendment  that  is  now  pending.  Perhaps  I  was  influenced  by  casting  my 
thoughts  back  to  those  humble  parsonages  in  the  county  which  I  have  the  honor  to 
represent.  I  suppose  that  what  is  true  of  them  is  true  of  most  of  the  property  of  that 
character  in  the  Commonwealth.  I  know  they  were  not  bought  without  great  sacrifices 
on  the  part  of  the  people  who  bought  them.  I  know,  at  the  same  time,  while  they  are 
given  as  part  of  the  salary  of  the  minister  of  the  church  who  occupies  them,  that  those 
ministers  even  with  that  help,  find  it  very  difiicult  to  live  upon  the  small  salaries  which 
they  receive.  From  that  reason  I  have  determined  that  I  will  vote  for  this  amendment. 
I  am  not  influenced  in  this  matter  by  the  fact  that  I  am  a  minister  of  the  Gospel.  I  have 
never  forgotten  for  one  moment,  while  I  have  been  a  meraber  of  this  body,  that  I  am  a 
citizen  of  Virginia,  and  that  I  occupy  here  a  double  position;  that  I  can  stand  here  on 
this  floor  as  a  layman,  considering  the  interests  of  the  State  as  well  as  any  man  upon 
this  floor.  I  shall  vote  to  exempt  our  houses  of  worship  from  taxation,  not  because 
they  are  connected  with  religion.  It  is  not  the  part  of  a  secular  government  to  support 
religion.  I  shall  vote  for  it  for  the  same  reason  that  I  vote  to  throw  a  safeguard  around 
the  Christian  Sabbath,  not  because  it  is  the  Christian  Sabbath,  not  because  it  is  a  time 
when  the  people  may  have  religious  worship,  but  because  the  maintenance  of  this  one 
day  is  necessary  for  the  prosperity  of  the  Commonwealth,  in  order  to  better  the 
economic  conditions  of  the  people  of  Virginia.  It  is  necessary  for  the  health  of  the 
people,  and  to  the  material  prosperity  of  the  State.  That  is  the  ground  upon  which 
we  base  our  demand  for  the  statutes  in  regard  to  the  Christian  Sabbath.  For  the  same 
reason  I  will  vote  to  exempt  our  houses  of  worship  from  taxation,  not  because  they  are 
teaching  religion,  but  for  the  reason  that  it  is  a  necessity  for  the  secular  government 
that  there  should  be  religion,  in  a  certain  sense,  which,  if  not  maintained  and  fostered, 
is  still  recognized  and  looked  favorably  upon  by  the  government. 

We  may  not  all  be  members  of  the  same  Christian  Church,  but  there  is  no  man  in 
this  Convention,  and  there  is  no  man  in  the  world  who  is  not  religious.  He  may  not 
be  religious  from  your  standpoint,  but  man  is  a  religious  animal.  States  cannot  flourish 
without  religion.  This  has  been  recognized  by  Greece,  by  Rome,  by  Egypt,  by  Babylon, 
and  every  secular  power  that  has  existed  upon  the  fact  of  the  earth.  It  is  for  the  wel- 
fare of  the  State,  for  the  good  of  the  people,  and  for  the  peace  and  prosperity  of  the 
community  that  these  institutions  should  exist  among  us.  It  is  for  the  material  welfare 
of  the  people,  as  a  police  powder  and  educational  force,  a  force  that  makes  against  crime 
in  the  Commonwealth,  that  we  should  look  favorably  upon  these  institutions,  and  upon 
these  houses  of  worship. 

For  these  reasons  I  shall  give  my  vote  to  exempt  parsonages,  because  they  are 
along  the  same  line.  If  we  could  imagine  what  will  be  the  condition  of  the  Common- 
wealth with  regard  to  crime  with  regard  to  civilization,  with  regard  to  the  very  life 
of  the  State  without  the  influence  of  the  churches  and  of  religion,  we  v/ould  recognize 
the  fact  that  these  houses  of  worship  should  be  exempt.  If  we  could  see  how  we  would 
relapse  again  to  that  from  which  we  came,  how  the  very  civilization  of  the  Common- 
wealth is  built  upon  the  religion  of  Jesus  Christ,  it  seems  to  me  it  would  influence  us, 
not  only  to  exempt  the  churches  from  taxation,  but- also  to  exempt  the  parsonages, 
which  are  a  help  to  the  religious  congregation  in  the  support  of  the  minister,  and  which 
go  to  make  up  a  part  of  his  salary. 

I  said  I  had  some  hesitation  upon  this  subject.  My  mind  is  not  entirely  clear  upon 
it  now.  But,  so  far  as  I  can  see  the  merit  of  the  case,  I  shall  give  my  vote  for  the 
amendment  to  exempt  the  parsonages  of  the  churches  from  taxation. 

Mr.  Thornton:  Mr.  Chairman,  I  promise  not  to  detain  the  committee  five  minutes 
with  v/hat  I  have  to  say.    I  would  not  now  undertake  to  trespass  upon  your  time  if 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2693 


I  did  not  feel  the  greatest  interest  in  the  amendment  that  has  been  suggested  by  the 
gentleman  from  Russell  (Mr.  Stuart).  It,  has  been  my  pleasure  to  support,  I  believe, 
with  a  single  exception,  this  admirable  report  of  the  Committee  on  Taxation  and 
Finance.  But  in  this  particular  I  beg  leave  to  differ  from  them.  One  reason  that  has 
been  assigned  here  by  the  gentlemen  who  advocate  the  adoption  of  this  report  is  that 
you  are  discriminating,  that  you  are  saying  to  the  churches  who  are  able  to  buy  or 
build  a  parsonage,  they  may  be  exempt  from  taxation,  while  to  the  poor  church  you  say 
no  such  exemption  shall  be  extended.  Ah,  sir,  that  is  one  of  the  very  reasons  why  I 
think  this  committee  should  help  these  poor  churches,  and  say  to  them:  Go  to  work, 
and  when  you  have  succeeded  in  building  up  a  little  house,  humble  though  it  be,  in 
which  your  preacher  may  live,  we  will  help  you  by  relieving  you  from  the  burden  of 
taxation. 

You  gentlemen  who  live  in  the  country  know  hov/  these  rectories  and  parsonages 
are  built.  You  know  how  the  good  v/omen  of  the  community  go  about  the  building  of 
them,  in  many  cases  depriving  themselves  of  those  things  which  are  almost  the  neces- 
saries of  life,  in  order  that  they  have  a  shelter  for  their  preacher,  humble  though  it  may 
be.  For  that  reason  I  say  that,  instead  of  discriminating  against  these  people,  you  are 
encouraging  them  to  build  rectories,  which  are  actually  necessary  in  order  that  they 
may  select  preachers  and  have  some  one  to  administer  to  the  sick  and  to  bury  the  dead. 

Another  reason  assigned  her  for  not  exempting  these  parsonages  is  that,  if  you 
exempt  them,  you  are  drawing  a  distinction  between  the  city  and  the  country.  So  far 
as  I  am  concerned,  I  am  willing  to  exempt  from  taxation  the  parsonages  in  the  cities, 
because  the  people  of  the  cities  have  probably  gone  to  exactly  the  same  trouble  and 
have  done  the  same  v/ork  that  the  country  people  have  in  order  to  obtain  their  parson- 
ages. 

When  you  go  back  to  your  people  and  say  to  them  that  you  have  exempted  the 
houses  in  which  the  college  professors  live  from  taxation,  the  houses  in  which  the 
officials  of  these  schools  live,  but  that  you  have  not  seen  fit  to  exempt  the  building  in 
which  your  preacher  lives,  it  will  be  an  explanation  that  will  be  hard  to  make.  I  pray 
and  beg  that  this  committee  will  not  go  back  to  the  people  and  say  that  we  have  failed 
to  exempt  from  taxation  these  parsonages  which  are  an  adjunct  to  the  church. 

It  has  been  contended  here  that  you  are  not  relieving  the  congregation,  but  are 
relieving  the  preacher.  But  if  you  exempt  the  house  from  taxation  you  are  relieving 
the  poor  people  to  the  extent  of  that  exemption,  and  are  raising  the  salary  of  the 
preacher.  You  are  not  relieving  the  preacher,  but  even  if  you  did,  I  will  say  that,  not 
only  are  the  ministers  poorly  paid,  but,  in  most  instances,  they  are  unable  even  to  get 
the  amount  tliey  have  been  promised.  Year  after  year  that  preacher,  when  the  year 
comes  to  an  end,  has  to  surrender  a  part  of  the  meager  salary  that  was  offered  him, 
simply  because  the  poor  people  in  the  community  have  been  unable  to  raise  it,  without 
great  deprivation. 

For  those  reasons  I  hope  this  committee  will  not,  for  one  instant,  undertake  to 
put  a  tax  upon  the  building  that  are  occupied  by  these  ministers  of  the  Gospel  in  the 
cities  and  in  the  country. 

Mr.  Stuart:  There  is  necessarily  involved  in  the  amendment  already  offered  a 
further  amendment  in  the  last  line  of  subsection  D,  line  13.  I  move  to  amend  by 
striking  out  the  last  three  words  in  that  line  "  for  public  worship." 

The  amendment  was  agreed  to. 

The  chairman:  If  there  are  no  further  amendments  to  this  sub-section,  the  Secre- 
tary will  read  sub-section  F  and  G. 

F.  Building  with  the  land  they  actually  occupy,  and  the  furniture  and  furnishings 
therein,  belonging  to  any  benevolent  or  charitable  association  and  used  exclusively  for 
lodge  purposes  of  meeting  rooms  by  such  associations,  together  with  such  additional 
adjacent  land  as  may  be  necessary  for  the  convenient  use  of  the  buildings  for  such 
purposes:  and 

G.  Property  belonging  to  the  Mt.  Vernon  Ladies'  Association  of  the  Union. 


3694 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Brown:  I  desire  to  offer,  the  following  amendment,  which  I  hope  will  be 
accepted.  After  the  word  "to"  in  line  51,  insert  the  words  "  the  association  for  the 
protection  of  Virginia  antiquities,  and  to  the  Mount  Vernon  Ladies'  Association  of  the 
Union." 

The  Chairman:  If  there  is  no  objection  the  amendment  will  be  considered  as 
adopted. 

Mr.  Blair:  Mr.  Chairman,  I  desire  to  offer  an  amendment  which  I  ask  the  Secre- 
tary to  read. 

The  general  Assembly  may  exempt  property  owned  by  ex-confederate  soldiers  who 
were  permanently  disabled  in  the  service  of  the  Confederacy. 

I 

Mr.  Blair:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  offer  this  mendment, 
following  up  a  resolution  which  I  offered  very  soon  after  the  Convention  convened. 
When  that  resolution  was  offered  I  could  not  tell  hov/  many  beneficiaries  there  would 
have  been  under  this  exemption.  I  expect  it  is  considerably  decreased  by  this  time. 
I  think  it  is  very  apropos  where  we  are  exempting  certain  properties  under  this  Section 
16,  that  we  should  consider  this  amendment.  It  strikes  me  that  it  is  a  little  hard  to 
require  the  men  who  were  incapacitated  in  the  service  of  their  State  to  pay  to  help 
support  the  State  when  they  are  unable,  physically,  to  do  so. 

Gentlemen,  the  thought  has  occurred  to  me  this  morning  that  this  is  the  first  con- 
stitutional body  that  has  ever  been  in  a  position  to  help  the  confederate  soldier.  Thirty 
years  ago  the  framers  of  the  Constitution  were  not  so  inclined.  They  were  not  in  sym- 
pathy with  the  old  soldier.  Thirty  years  hence,  in  the  course  of  nature,  the  old  con- 
federate soldier  will  not  need  constitutional  aid  or  recognition.  I  offer  this  amendment 
now  in  Committee  of  the  Whole,  and  I  shall  follow  it  up  in  Convention,  if  it  is  voted 
down  here.  I  do  not  propose  to  deliver  any  eulogy  on  the  old  confederate  soldier.  He 
needs  no  encomium  from  me.  He  wrote  his  name  in  letters  of  blood  upon  his  country's 
banner,  and  in  letters  of  love  upon  the  hearts  of  his  countrymen.  I  offer  this  amend- 
ment which  provides  for  leaving  it  to  the  Legislature,  if  they  see  fit,  to  exempt  the 
property  of  the  old  confederate  soldier. 

Mr.  Hamilton:  Mr.  Chairman,  the  committee,  I  am  sure,  can  not  accept  the  amend- 
ment. We  hope  it  will  ve  voted  down.  The  confederate  soldiers  are  the  last  persons 
who  would  ask  for  such  an  amendment. 

The  amendment  was  rejected. 

Mr.  Withers:  I  would  like  to  ask  the  attention  of  the  Committee  on  Taxation  and 
Finance  to  two  clauses  in  their  report.  This  is  a  matter  which  is  worthy  of  the  atten- 
tion of  the  Committee  of  the  Whole,  and  I  hope  I  can  detain  them  for  a  few  minutes. 
Sub-section  F,  from  lines  44  to  50,  inclusive,  exempts  from  taxation  buildings  with  the 
lands  they  actually  occupy  and  the  furniture  and  furnishings  therein  belonging  to  any 
benevolent  or  charitable  organization, and  used  exclusively  for  lodge  purposes  or  meet- 
ing rooms  by  such  associations,  together  with  such  adjacent  land  as  may  be  necessary 
for  the  convenient  use  of  the  building  for  such  purposes.  Beginning  with  line  59  is 
this  provision: 

Nothing  contained  in  this  section  shall  be  construed  to  exempt  from  taxation  any 
person,  firm,  association  or  corporation,  or  their  property,  who  or  which  shall  expressly 
or  impliedly,  directly  or  indirectly,  contract  or  promise  to  pay  any  sum  of  money  or 
any  benefit  on  account  of  death,  sickness  or  accident  to  any  of  its  neighbors  or  any 
other  person. 

I  hope,  Mr.  Chairman,  that  I  may  have  the  consent  of  the  Committee  of  the  Whole 
to  call  attention  to  just  what  this  does.  I  appreciate  fully  the  purpose  of  the  com- 
mittee.   I  have  no  criticism  to  make  of  them,  so  far  as  their  actions  are  concerned. 

Sub-section  F  exempts  such  orders  as  Masons  and  Elks  from  taxation.  The  latter 
provision  will  prevent  the  exemption  of  the  actual  house  and  grounds  used  and  occupied 


DEBATES  OE  THE  COXSTITETIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2695 


for  lodge  purposes  or  meeting  rooms  of  such  orders  as  the  Odd-Fellov:s  and  Pvthians. 
I  am  a  member  of  the  Odd-Fellows. 

The  Odd-Fellows  and  Fythians  have  what  they  call  sick  benefits  and  they  bury 
the  members  of  their  order  who  are  not  able  to  be  buried  by  their  own  families.  There 
does  not  enter  into  either  the  sick  or  death  benefits,  if  I  may  so  style  them,  the  slightest 
desire  to  earn  a  dividend  or  to  make  a  profit.  It  is  actually  a  charitable  and  benevolent 
work  done  in  that  particular  way,  just  as  the  Mason  contributes  a  direct  sum  by  a  vote 
of  the  lodge,  and  as  the  Elks  contribute  sum  by  subscription  taken  up  in  the  lodge 
without  knowing  the  purposes  for  which  it  is  going  to  be  used.  So  the  Odd-Fellows 
and  Pythians  and  possibly  the  Junior  Order  of  United  American  Mechanics  accomplish 
a  like  charitable  purpose  by  assessments,  if  the  dues  are  not  sufficient  for  the  purpose 
of  paying  to  a  man  v^'ho  is  sick  and  disabled  a  weekly  benefit,  and  to  enable  a  man  who 
is  v%-orthy  and  respectable  to  be  buried  without  an  undue  burden  upon  his  family. 

I  want  to  make  it  plain  that  I  do  not  in  an^-  way  question  the  purpose  of  the  com- 
mittee. I  know  exactly  what  they  intended  to  reach'.  I  believe  this  provision  ought 
to  reach  just  such  organizations,  associations  or  societies.  I  offer  no  amendment 
because  of  the  fact  that  I  thought  possibly  the  committee  might  suggest  a  remedy.  It 
does  seem  as  though  they  might  provide  a  method  whereby  the  two  organizations  that 
I  know  accomplish  the  very  highest  possible  good  to  their  fellow  men  should  not  be  put 
under  the  burden,  while  two  similar  organizations,  simply  because  they  happen  to  work 
out  their  charity  and  benevolence  in  a  different  way,  escape  the  burden.  I  am  not 
asking  for  the  exemption  of  such  organizations.  I  am  simply  calling  attention  to  the 
hardship  that  this  clause  will  work  upon  two  orders,  while  it  entirely  exempts  two 
others.  I  want  to  say  right  here  that  there  is  no  order  in  the  world,  there 
is  no  association,  corporation  or  set  of  individuals  in  the  world  that  reaches  right 
down  into  the  very  rank  and  condition  of  men  who  need  charity  and  help 
and  benevolence  to  a  greater  extent  than  this  order  of  Odd-Fellows.  Its  member- 
ship consists  largely  of  the  laboring  men  of  Virginia.  Its  charity  goes  out  to  them 
when  they  are  disabled  in  their  works,  when  they  are  stretched  upon  their  beds  by 
reason  of  accident,  by  a  fall  from  a  house,  by  being  ground  under  an  engine,  by  being 
blown  up  by  an  accidental  explosion.  It  goes  out  to  them  and  by  a  weekly  benefit 
enables  them  to  keep  the  wolf  from  the  door  and  sustain  their  families  during  their 
temporary  or  permanent  disability.  I  have  known  of  instance  after  instance  where  men 
of  the  highest  character,  men  of  the  very  highest  traits  of  citizenship  have  had  accidents 
to  happen  to  them  by  which  their  earning  capacity  was  absolutely  destroyed,  and  by  the 
system  of  weekly  benefits  in  this  order  these  men  were  kept  from  being  absolute 
objects  of  public  charity.  If  the  question  of  a  dividend  or  profit  entered  into  the  matter 
I  would  net  take  up  the  time  of  this  committee  to  call  the  matter  to  its  attention.  If 
it  had  any  other  purpose  in  the  world  than  to  stretch  out  to  the  needy  and  deserving 
fellow-man  the  hand  of  charity,  I  would  not  take  up  your  time  to  discuss  it  or  call  your 
attention  to  it.  But  I  know  from  personal  observation  and  knowledge,  I  know  from 
personal  contact  with  men  who  belong  to  that  order  that  it  reaches  into  the  ranks  of 
life  where  its  work  can  be  most  effectively  done. 

The  Chairman:  The  Chair  will  state  that  the  question  before  the  house  is  a 
motion  to  strike  out  Section  E  and  F. 

Mr.  Braxton:  My  opinion  was  to  strike  out  all  of  Section  16,  beginning  with  line 
21  which  covers  sub-sections  D,  E.  F,  and  G.  and  also  covers  the  portion  to  which  my 
friend  is  now  addressing  himself. 

Mr.  Withers:  Mr.  Chairman,  I  simply  desire  to  call  the  attention  of  the  committee 
to  this  hardship  upon  these  two  orders.  I  thoroughly  understood  the  object  of  the 
committee  and  I  approve  of  it  and  I  will  vote  for  it.  But  the  two  contradictory  pro- 
visions operate  as  a  bar  so  far  as  these  orders  are  concerned  while  it  exempts  two 
equally  worthy  and  commendable  orders,  the  Masons  and  the  Elks. 

As  I  started  out  to  say,  from  my  own  personal  knowledge  as  a  member  of  the  Odd- 


2696  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Fellows  and  from  my  own  personal  acquaintance  with  the  men  who  compose  that  order 
I  know  that  the  hand  of  charity  and  benevolence  reaches  out  to  those  men  who  best 
deserve  and  most  need  it.  If  the  principle  of  benevolence  and  charity  to  your  fellow-" 
men  is  in  any  way  to  receive  the  sanction  of  this  Convention  by  being  exempted  from 
taxation  I  know  that  there  is  no  finer  manifestation  of  the  high  trait  of  self-sacrifice,  of 
benevolence  and  of  regard  for  the  welfare  of  our  fellow-men  than  is  manifested  in  this 
order  of  Odd-Fellows. 

Mr.  Meredith:  The  object  of  Section  7,  to  which  you  referred,  which  relates  to 
death  benefits  and  insurance  is  for  the  purpose  of  protecting  the  Commonwealth  against 
a  lot  of  pretended  benevolent  associations  which  are  at  work  in  this  State  without 
paying  taxes.  If  you  allow  any  one  to  work  under  that  provision  who  does  pay  benefits 
on  account  of  death  or  any  sum  of  money  on  account  of  accident  to  its  members  you 
would  leave  the  door  open  for  these  fake  insurance  companies  to  do  business,  just  as 
you  are  now. 

Mr.  Withers:  I  am  very  much  afraid  you  would,  unless  you  specify  them  by  name. 
We  might  possibly  meet  it  by  putting  in  a  provision  that  they  should  not  be  exempt 
except  where  such  insurance  or  benefit  was  not  the  subject  of  profit  or  for  the  purpose 
of  declaring  a  dividend,  but  was  for  pure  charitable  and  benevolent  purposes. 

Mr.  Braxton:  I  do  not  wish  to  take  up  too  much  time  of  the  Convention  in  con- 
nection with  the  motion  which  I  have  made  to  strike  out  Section  16,  beginning  with 
line  21;  but  there  are  some  few  considerations  in  this  connection  to  which  I  would  like 
to  direct  your  attention. 

In  the  first  place  it  seems  to  me,  Mr.  Chairman  and  gentlemen  of  the  committee, 
that  it  is  a  wrong  principle.  I  do  not  mean  that  it  is  morally  wrong  but  that  it  is 
economically  wrong  for  the  government  to  make  appropriations  for  or  compel  its 
citizens  to  contribute  in  any  way  to  the  support  of  anything  that  it  does  not  control  or 
supervise.  That  has  been  recognized  by  this  body  heretofore  in  a  provision,  which  has 
been  already  adopted,  that  no  appropriation  shall  be  made  for  the  benefit  of  any  society 
or  institution  that  the  State  does  not  control.  Nobody  knows  how  the  money  so  appro- 
priated is  spent.  I  submit  that  the  exemption  from  taxation  is  no  more  or  less  than  a 
public  contribution  to  that  extent,  and  an  appropriation  of  public  money  to  that  extent 
for  the  benefit  of  the  institution  in  whose  favor  the  exemption  is  enacted. 

But,  Mr.  Chairman  and  gentlemen  of  the  committee,  that  is  but  a  small  part  of 
the  objection,  because  it  can  be  well  said  that  there  is  no  rule  without  an  exception  and 
that  this  is  a  legitimate  exception  to  the  rule.  The  great  difficulty,  Mr.  Chairman,  is 
the  absolute  impossibility  of  providing  exemptions  of  this  sort  without  making  unjust 
discriminations.  We  have  seen  that  illustration  here  to-day.  You  have  got  to  do  one 
of  two  things.  You  have  either  got  to  use  such  general  language  that  you  will  throw 
the  door  open  to  frauds  of  all  kinds,  or  else  you  have  to  make  unjust  and  invidious  dis- 
tinctions and  discriminations,  frequently  by  name,  exempting  this  concern  and  not 
exempting  that.  I  say,  in  the  first  place,  that  whenever  the  institution 
which  you  are  going  to  favor  with  an  exemption  is  not  absolutely  public 
in  its  character  the  exemption  is  wrong.  Every  tax  that  we  exempt  imposes  that  much 
more  tax  upon  those  who  are  not  exempted.  As  a  member  of  this  body  very  clearly 
said  in  conversation  with  me  this  morning,  the  man  who  gets  more  than  his  share  of 
the  pie  takes  away  from  somebody  else  and  makes  him  get  less  than  his  share.  Mr. 
Chairman  and  gentlemen  of  the  committee,  if  you  are  going  to  exempt  anybody  you  are 
practically  making  you  and  me  and  Jones  and  Robinson  and  everybody  else  pay  taxes 
which  we  ought  not  to  be  required  to  pay.  You  are  compelling  us,  nolens  volens,  tot 
contribute  to  an  institution,  unless  it  is  public  in  its  character  when  we  have  no  means 
of  participating  in  the  benefits  of  it. 

I  am  not  a  member  of  the  Masonic  fraternity;  but  from  all  that  I  have  ever  heard 
of  it  I  imagine  it  is  a  most  excellent  and  commendable  order.  But  why  should  I  be 
made  to  pay  the  tax  of  that  order  when  it  will  not  permit  me  to  come  inside  of  its  door. 
It  is  wrong  in  principle.    So  with  the  Odd-Fellows  and  so  with  tlie  Pythians  and  so 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


2697 


with  every  other  institution  that  jou  may  mention  that  is  not  free  and  public.  To  that 
extent  the  churches  are,  I  believe,  distinctly  different  from  anything  else,  because  any 
man  that  behaves  himself  with  decency  can  go  inside  a  church  and  participate  in  the 
benefits  of  that  organization,  if  he  chooses  to  do  so. 

Xow,  Mr.  Chairman,  when  you  undertake  to  provide  for  these  exemptions  you  will 
find  what  these  gentlemen  have  found  this  morning,  that  there  is  no  general  principle 
which  you  can  enunciate  upon  which  you  can  base  your  exemption  that  will  not  permit 
of  all  sorts  and  kinds  of  frauds  and  deceit,  unless  you  pick  them  out  and  exempt  them 
by  name,  as  you  have  done  the  Young  Men's  Christian  Association.  I  submit  to  you 
that  is  not  proper.  How  do  we  know  that  there  are  not  other  organizations  of  almost 
identically  the  same  character?  If  they  do  not  exist  to-day,  how  do  we  know  that  fhey 
may  not  exist  to-morrow?  How  can  we  defend  ourselves  when  we  go  before  the  people 
and  say,  for  instance,  that  the  Young  Men's  Christian  Association  has  been  exempted 
from  taxation,  but  the  Young  Women's  Christian  Association  has  not  been  exempted  from 
taxation.  You  cannot  apply  any  principle  to  it.  As  my  distinguished  friend  from  Dan- 
ville has  just  pointed  out  to  you,  if  you  undertake  to  exempt  benevolent  associations, 
you  throw  open  the  door  to  every  kind  of  fraud  and  swindle  under  the  name  of  a  bene- 
volent association,  which  are  no  more  or  less  than  swindling  insurance  companies  in 
disguise.  And  in  your  attempt  to  exclude  the  swindling  associations  you  exclude  from 
your  exemption  two,  certainly,  of  the  most  meritorious  benevolent  bodies  in  this  coun- 
try— the  Odd-Fellows  and  the  Pythians.  My  friend  also  suggests  that  the  Junior  Order 
of  American  Mechanics  is  included,  and,  for  all  I  know,  there  may  be  a  dozen  others. 

Mr.  Meredith:    It  does  not  exclude  the  Junior  Order  of  American  Mechanics. 

Mr.  Braxton:  It  is  immaterial,  for  my  purpose,  whether  it  excludes  them  or  not. 
There  may  be  dozens  of  others.  We  are  embarking  upon  a  line  that  cannot  be  defended 
in  logic  or  reason,  and  we  are  really  doing  no  one  any  particular  good.  You  do  not 
exempt  anything  but  the  lodge  room  in  which  they  meet,  and  that  only  provided  there 
is  nothing  in  the  building  but  that  lodge  room.  How  many  buildings  are  there  in  the 
State  of  A'lrginia  which  contain  nothing  but  the  lodge  room?  Under  the  provisions  of 
line  67,  and  following  lines,  if  any  portion  of  the  building  is  leased  or  rented,  or  used 
by  any  one  else,  the  whole  house  must  be  taxed.  Go  around  through  this  country  and 
find  how  many  lodge  rooms  there  are  which  have  separate  and  independent  buildings, 
each  one  of  which  contains  nothing  but  the  lodge  room.  If  it  has  a  store  do-^Ti  stairs, 
a  dwelling  house  up  stairs,  or  anything  in  any  part  of  it.  the  whole  building  must  be 
taxed.  If  you  do  not  do  that  you  enable  the  very  thing  to  exist  which  has  been  a 
crying  evil,  in  this  country,  namely,  that  under  the  guise  of  having  a  lodge  room,  a 
house  can  be  established  that  will  yield  a  tremendous  revenue  by  having  a  hotel  in  it, 
by  having  stores  in  it,  and  other  things  of  that  sort,  and  paying  no  faxes.  In  my  own 
town  nearly  one-third  of  the  real  estate  is  exempt  from  taxation  to-day;  and  yet  it 
costs  this  government  just  as  much  to  police  that  property  and  protect  it  rights  in 
the  court  of  the  municipality,  to  pave  around  it  and  give  it  fire  protection  as  it  does  any 
other  property.  But  it  does  not  contribute  one  cent  to  the  government.  I  say  that  we 
are  reduced  to  this — we  must  make  all  property  pay  its  own  taxes,  and  if  we  undertake 
to  make  any  exemptions,  we  have  got  to  throw  the  door  open  and  let  in  endless  frauds. 
If  you  do  not  do  that,  you  make  the  most  unjust  and  invidious  distinctions  between  the 
various  people  who  are  contending  for  the  exemption.  You  want  to  exempt  educational 
institutions.  I  tell  you,  gentlemen,  that  even  under  the  disguise  of  educational  institu- 
tions frauds  are  perpetrated  upon  the  Commonwealth,  and  I  do  not  see  how  you  can 
prevent  it.  My  attention  has  been  called  to  an  instance  of  this  sort.  Five  men  wanted 
to  run  a  school,  and  wanted  to  run  it  for  their  own  profit.  They  got  up  the  money 
necessary  to  buy  the  school  building  and  they  secured  that  monej^  by  issuing  bonds 
upon  the  property.  They  organized  a  so-called  ellemosynary  institution  for  educational 
purposes  without  capital  stock.  They  bought  the  property  and  borrowed  the  money 
from,  themselves  to  pay  for  the  property,  and  issued  bonds  at  6  per  cent.  They  are 
170 — Const.  Deb. 


2698 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


employed  as  president,  secretary,  general  manager  and  professors.  Every  dollar  of  the 
profits  goes  into  their  own  pockets,  in  the  shape  not  of  dividends  on  stock,  but  for  sal- 
aries for  their  own  real  or  nominal  services,  and  the  State  is  defrauded  of  her  revenue. 

I  do  not  see  how  you  can  work  this  matter  in  such  a  way  as  to  prevent  that 
kind  of  fraud,  unless  you  say  that  everybody  in  this  country,  to  get  the  benefit  of  govern- 
ment, must  contribute  his  due  share  to  the  support  of  the  government.  I  am  willing 
to  exempt  government  property.  Of  course  the  government  would  not  tax  itself.  By 
government  property  I  mean  also  the  property  of  municipalities.  I  am  willing  to 
exempt  the  churches  in  which  the  meetings  are  held,  and  the  house  in  which  the 
preacher  lives.  I  think  they  stand  on  a  different  ground  from  the  others.  I  think  the 
fact  that  a  church  is  not  a  close  corporation  but  is  open  for  every  man  to  come  into  it, 
is  one  thing  which  distinguishes  it  from  these  other  organizations.  I  think  the  public 
sentiment  against  the  taxing  of  property  that  is  appropriated  actually  and  exclusively 
to  religious  purposes  is  a  proper  sentiment,  and  one  that  we  ought  to 
respect.  If  we  had  to  enforce  the  collection  of  taxes  on  churches,  we 
would  be  forced  to  shock  the  consciences  of  everybody  in  the  community  by  selling  the 
church  for  taxes.  Therefore  I  am  in  favor  of  exempting  the  church  and  the  house  of 
the  preacher  from  taxation.  I  am  in  favor  also  of  exempting  burying  grounds.  In  the 
first  place,  there  is  no  way  of  perpetrating  fraud  as  there  is  if  you  exempt  these  other 
associations.  In  the  second  place  the  revenue  that  would  be  derived  from  taxing  them 
is  infinitesimal,  and,  in  the  third  place,  it  would  be  absolutely  shocking  and  horrible  to 
sell  anybody's  grave  to  pay  the  taxes  on  it.  But  when  you  have  exempted  government 
property,  church  property,  including  the  parsonage,  and  graveyard  property  not  owned 
by  a  corporation  for  profit,  I  believe  Mr.  Chairman  and  gentlemen,  that  we  Tiave  gone 
as  far  as  we  can  safely  and  logically  go  in  this  line?  I  know  that  some  of  the  gentle- 
men think  this  would  have  been  done  heretofore  if  a  strong  public  sentiment  in  favor 
of  these  exemptions  had  not  existed;  but  I  believe  there  is  enough  common  sense  and 
patriotism  in  the  people  of  this  country  to  recognize  the  justice  and  wisdom  of  this 
matter.  I  believe  that  the  amount  of  taxes  that  would  be  placed  upon  these  people 
would  be  exceedingly  small.  I  cannot  believe  there  is  any  material  part  of  the  people 
of  this  Commonvvealth  who  would  undertake  to  antagonize  a  Constitution  otherwise 
acceptable  to  them,  because  it  had  in  it  what  every  man,  I  think,  must  consider  is  right 
and  just. 

I  trust,  therefore,  it  will  be  the  pleasure  of  this  committee  to  strike  out  that  part 
of  this  section,  beginning  in  line  21,  and  leaving  in  it  only  the  exemptions  I  have 
referred  to,  public  property,  church  property  and  burying  grounds.  When  I  say  church 
property  I  mean  the  buildings  necessary,  and  the  land  to  go  with  it. 

Mr.  Pedigo:  I  hope  the  amendment  of  the  gentleman  from  Augusta  will  prevail. 
I  believe  in  carrying  out  the  original  decree  of  Caesar  Augustus  that  all  the  world 
should  be  taxed.  I  believe  that  the  taxes  should  be  assessed  strictly  ad  valorem.  I 
believe  it  is  wrong  to  exempt  the  residence  of  the  preacher  or  the  residence  the 
the  preacher  lives  in.  If  the  preacher  lives  in  the  country  and  lives  in  his  own  cabin, 
he  has  to  pay  his  own  taxes,  and  it  is  an  unjust  discrimination  against  those  who  live  in 
their  own  houses. 

I  hope  the  amendment  to  strike  out  this  whole  section  will  prevail. 

Mr.  Hamilton:  Mr.' Chairman  I  agree  with  the  gentleman  from  Augusta;  but,  while 
I  agree  with  him  with  respect  to  exemptions,  I  think  that  we  must  look  at  things  prac- 
tically in  this  world.  It  would  not  do  at  all,  in  my  judgment,  for  us  to  undertake  to  tax 
certain  things  in  this  Commonwealth.  As  I  stated  this  morning,  we  are  yet  too  full  of 
prejudices  and  too  full  of  the  idea  that  what  has  existed  so  long  with  respect  to  certain 
things  should  continue  to  exist,  to  enable  us  to  carry  out  that  idea  at  the  present  time.  I 
think  it  would  be  very  imprudent  and  very  impolitic  for  the  Convention  to  carry  out 
and  approve  the  motion  of  the  gentleman  from  Augusta.  Theoretically  I  think  he  is 
right,  except  that  he  does  not  go  far  enough  to  fully  carry  out  his  theory.    But  I  feel 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2699 


that  it  Tvould  be  imprudent  for  this  Convention  to  adopt  that  view,  and  I  trust  the  Con- 
vention will  sustain  the  report  of  the  committee  on  this  subject.  The  report  was  pre- 
pared with  the  greatest  care.  We  know,  at  the  same  time,  that  it  is  not  perfect.  It  is 
a  very  difficult  subject  to  get  even  approximately  perfect. 

:\Ir.  Turnbuir.  I  have  adopted  the  rule,  since  I  have  been  in  this  Convention,  of 
voting  for  what  I  believe  to  be  right  regardless  of  consequences.  I  believe  that  the 
amendment  of  the  gentleman  from  Augusta  is  the  correct  thing  to  do  and  I  believe  it 
is  right  from  every  standpoint.  I  am  going  to  vote  to  support  the  amendment.  This 
question  of  the  exemption  of  people  from  taxation  has  been  the  •  one  thing  that  has 
created  more  dissatisfaction  than  anything  else  in  the  State  of  Virginia.  In  my  town 
one-half  of  the  property  is  exempt  from  the  burden  of  supporting  the  town  and  it  rests 
upon  the  balance  of  it  to  bear  the  burden,  and  they  are  getting  the  benefit  of  the  pro- 
tection that  is  paid  for  by  others. 

I  say  it  is  not  right.  I  say  that  the  principle  enunciated  by  the  gentleman  from 
Augusta  is  absoltitely  right,  that  I  should  not  be  made  to  contribute  to  the  support  of 
an  institution  that  I  do  not  choose  to  contribute  to,  and  that  is  the  principle  of  exemption 
from  taxation.  Kas  a  school  that  is  supported  by  contributions  a  right  to  be  exempt 
from  taxation  and  make  me  contribute  to  its  support  whether  I  want  to  or  not?  I  say 
the  principle  is  not  right  and  therefore  I  shall  vote  for  the  amendment  of  the  gentleman 
from  Augusta. 

:Mr.  Meredith:  On  behalf  of  the  committee  I  have  to  ask  that  the  amendment 
offered  by  the  gentleman  from.  Ai^giista  may  not  pass.  It  is  all  very  well  to  have  a 
general  principle.  It  is  all  very  well  to  be  guided  by  principle,  but  we  surely  ought  to 
recognize  whether  the  principle  is  applicable  to  the  circumstances  under  which  we  live. 
If  the  gentleman  from  Augusta  would  carry  his  principle  to  the  full  extent  he  could  not 
justify  the  taxes  laid  upon  the  people  for  the  public  schools  of  the  State.  You  are 
taking  the  money  out  of  my  pocket  to  pay  for  the  education  of  somebody  else.  There 
is  but  one  justification  for  it,  and  that  is  the  justification  which  comes  from  the  fact 
that  I  am  benefited  by  the  spread  of  education  in  the  community  in  which  I  live.  That 
is  the  only  justification  you  can  have.  I  derive  (  indirectly,  a  portion  of  the  benefit 
because  the  tone  of  society  is  elevated.  That  is  the  only  theory  upon  which  you  can 
justify  the  free  school  education;  yet  it  is  a  sufiicient  justification. 

Mr.  Braxton:  I  would  suggest  that  there  is  a  further  justification  in  that  the  public 
schools  are  managed  and  controlled  by  the  State  and  in  that  way  are  distinguished  from 
private  institutions,  and,  further,  if  you  do  not  choose  to  send  your  children  to  those 
schools  it  is  your  own  fault. 

Mr.  Meredith:  I  was  going  to  say  that  the  only  principle  upon  which  you  can 
justify  the  principle  of  taxation  for  the  benefit  of  public  schools  is  upon  the  theory  of  the 
general  benefit  which  the  public  derives  by  reason  of  the  fact  that  the  great  mass  of 
the  citizens  are  elevated  by  education.  Now  Mr.  Chairman,  that  being  a  good  reason 
for  the  establishment  of  public  schools  let  us  see  if  the  same  reason  does  not  apply  to 
the  exemptions  that  we  give  here,  except  that  we  will  not  have  public  management  of 
the  institutions.    That  is  the  only  distinction  between  them  that  I  can  see. 

If  you  say  it  is  absolutely  necessary  to  have  all  the  charitable  educational  institu- 
tions managed  by  the  public  authorities,  I  will  agree  to  your  proposition.  But  I  would 
like  to  see  any  man  maintain  that  proposition.  If  the  gentleman  can  maintain  that 
proposition  I  will  vote  for  his  amendment;  but  I  am  not  prepared  to  admit  that  there 
cannot  be  any  benefit  conferred  upon  society  in  general  by  the  efforts  of  individuals, 
the  organized  efforts  of  individuals  for  charitable  purposes.  I  believe  that  far  greater 
good  is  done  by  the  public  authorities  as  to  charitable  institutions. 

Mr.  Braxton:  Does  not  my  friend  think  that  private  charity  aggregates  a  great 
deal  more  than  those  of  the  charitable  and  benevolent  associations?  I  understood  my 
friend  to  say  that  all  private  charity  is  for  the  public  good,  whether  it  is  controlled  by 
the  government  or  not.    I  wish  to  ask  him  if  that  observation  does  not  apply  with  equal 


2700  DEBATES  OF  THE  CONSTITUTIONS^ AL  CONVENTION  OF  VIRGINIA. 

force  to  the  charity  of  individuals  as  well  as  to  the  charity  of  the  secret  societies,  and 
if  the  charity  of  individuals  does  not  aggregate  vastly  more  than  the  charity  of  secret 
societies? 

Mr.  Meredith:  If  you  could  show  me  that  an  individual  had  set  aside  $20,000  or 
$50,000,  the  interest  of  which  was  to  be  used  for  the  benefit  of  charity  or  the  benefit 
of  education,  I  would  be  willing  not  to  put  tax  on  it.  But  that  is  not  done.  When  you 
come  to  the  property  of  these  associations,  they  are  set  aside  only  for  the  purpose  of 
charity  or  education. 

I  ask,  Mr.  Chairman,  if  we  are  now  in  a  condition,  financially,  to  undertake  to  tax 
the  property  which  we  ask  shall  be  exempted?  What  does  the  gentleman  propose  to 
tax?  You  are  sitting  now,  at  this  moment,  in  a  building  that  was  erected  by  charitable 
contributions.  This  building  in  which  you  are  now  sitting  was  erected  by  men  in 
this  city  putting  their  hands  in  their  pockets  and  giving  their  money  for  the  benefit  of 
mankind  simply  in  order  that  the  young  men  who  work  all  day  long  may  have  an 
opportunity  at  night  to  get  an  education.  If  you  undertake  to  tax  it,  you  v/ould  have 
to  put  quite  a  large  tax  on  it,  as  the  property  is  valued  at  forty  or  fifty  thousand  dollars. 
Why  should  it  be  taxed?  It  comes  into  competition  with  nobody.  There  is  no  pro- 
ductivity attached  to  it.  It  does  not  enter  into  any  business  competition.  It  does  not 
deprive  anybody  of  the  opportunity  to  obtain  a  livehood.  It  is  simply  devoted  to  the 
benefit  of  mankind.  Tell  me  why  that  property  should  be  taxed  upon  any  theory. 
There  is  no  profit  derived  from  it.  It  is  merely  devoted  to  the  benefi.t  of  mankind  in 
general.  It  ought  not  to  be  taxed  unless  it  is  used  for  private  benefit,  by  which  either 
an  actual  profit  or  an  expected  profit  in  the  future  will  come  from  it. 

What  is  proposed  by  the  gentleman  from  Augusta?  To  strike  out  all  of  this  sec- 
tion after  sub-division  C.  My  friend  goes  further  than  he  intended.  If  he  will  examine 
sub-section  E  he  will  find  that  it  refers  to  religious  and  charitable  institutions;  and  that 
the  institutions  mentioned  in  that  sub-section  are  just  as  much  a  moral  benefit  to  man- 
kind as  those  in  sub-section  C.  He  will  find  there  in  connection  with  the  Young  Men's 
Christian  Associations  other  institutions,  such  as  orphan  asylums,  hospitals,  etc.,  all 
devoted  to  charitable  purposes.  There  is  no  reason  why  they  should  be  taxed  if  you  do 
not  propose  to  tax  the  churches.  The  only  section  that  he  could  ask  to  be  stricken  out 
is  sub-section  D;  and  then  you  would  be  striking  at  educational  institutions,  which  are 
not  conducted  for  profit.  The  only  justification  that  has  been  given  by  the  gentleman 
from  Augusta,  as  well  as  by  the  gentleman  from  Brunswick,  is  that  there  is  a  possibility 
that  some  evil  will  creep  in  by  reason  of  some  one  committing  a  fraud.  That  possi- 
bility we  have  avoided  as  far  as  possible  by  the  restrictions  set  forth  with  great  care 
in  this  section. 

To  the  gentleman  from  Danville  (Mr.  Withers)  I  simply  want  to  suggest  that  we 
had  the  same  difficulty  that  he  has  exeprienced"  with  reference  to  the  beneficial  orders. 
It  is  absolutely  impossible  to  undertake  to  draw  any  provision  by  which  we  can  exclude 
the  sham  insurance  companies  and  at  the  same  time  exempt  those  benevolent  orders 
to  which  he  referred,  when  they  confer  any  benefit  in  the  nature  of  sick  benefits  or 
death  insurance.  We,  therefore,  had  to  provide  that  if  a  man  derives  a  personal  and 
private  benefit  from  such  an  order,  it  should  pay  taxes  because  there  is  a  pecuniary 
benefit  derived  from  being  a  member  of  it.  We  could  not  avoid  the  course  recom- 
mended by  us. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Augusta. 

The  amendment  was  rejected,  there  being  on  a  division  ayes  17,  noes  39. 

On  motion  of  Mr.  Fairfax  the  committee  rose  and  the  president  resumed  the  chair. 

On  motion  the  Convention  took  a  recuess  until  4  o'clock  P.  M. 

AFTER  RECESS. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
chair. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


2701 


TAXATION  AND  FINANCE 

On  motion  of  Mr.  Fairfax  the  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  further  consideration  of  the  report  of  the  Committee  on  Taxation  and 
Finance,  Mr.  Aj^ers  in  the  chair. 

The  Chairman:  The  business  before  the  Committee  of  the  Whole  is  the  further 
consideration  of  the  report  of  the  Committee  on  Taxation  and  Finance.  If  there  are 
no  further  amendments  to  Section  16  the  Secretary  will  read  the  next  section. 

Sec.  17.  No  debt  shall  be  contracted  by  this  State  except  to  meet  casual  deficits 
in  the  revenue  to  redeem  a  previous  liability  of  the  State,  to  suppress  insurrection, 
repel  invasion,  or  defend  the  State  in  time  of  war.  No  scrip,  certificate,  or  other  evi- 
dence of  State  indebtedness  shall  be  issued  except  for  the  transfer  or  redemption  of 
stock  previously  issued,  or  for  such  debts  as  are  expressly  authorized  in  this  Constitu- 
tion. 

Sec.  18.  The  credit  of  the  State,  or  of  any  county,  city,  or  town,  shall  not  be, 
directly  or  indirectly,  under  any  device  or  pretense  whatsoever,  granted  to  or  in  aid  of 
any  person,  association,  or  corporation;  nor  shall  the  State,  or  any  county,  city,  or 
town  subscribe  to  or  become  interested  in  the  stock  or  obligations  of  any  company, 
association,  or  corporation,  for  the  purpose  of  aiding  in  the  construction  or  maintenance 
of  its  works;  nor  shall  the  State  become  a  party  to  or  become  interested  in  any  work  of 
internal  improvement,  nor  engaged  in  carrying  on  any  such  work;  nor  assume  any 
indebtedness  of  any  county,  city,  or  town,  nor  lend  its  credit  to  the  same. 

Mr.  Brown:  Mr.  Chairman,  I  desire  to  offer  the  following  amendment,  to  go  in  at 
the  end  of  this  section: 

But  the  words  "  any  work  of  internal  improvement"  shall  not  be  construed  to 
include  the  public  roads  of  the  Commonwealth. 

I  understood  from  the  committee  that  the  idea  is  that  those  words  did  not  include 
public  roads. 

Mr.  Boaz:  I  think  that  amendment  is  objectionable.  The  members  of  the  Con- 
vention will  recall  the  case  of  our  public  debt,  which  grew  up  just  in  this  way.  It 
commenced  with  turnpikes,  and  then  went  on  to  canals  and  then  to  the  construction  of 
railroads.  This  is  just  a  recurrence  to  the  same  conditions.  We  have  gotten  into 
tolerably  good  shape  now,  and  are  looking  around  for  somewhere  to  put  the  little  money 
that  we  have,  and  the  first  thing  we  know  we  will  have  a  great  big  debt  piled  up  on  us. 

Mr.  Brown:  I  do  not  think  the  objections  raised  by  the  gentleman  from  Albemarle 
are  necessarily  tenable  here,  because,  in  Section  17  there  is  a  direct  inhibition  against 
any  debt  being  contracted  for  any  purposes,  except  as  specified  in  Section  18.  There 
is  a  prohibition  expressly  against  the  State  lending  itself  to  the  aid  of  any  corporation, 
I  understood  that  it  was  the  opinion  of  the  lawyers  on  the  committee  that  the  words 
"internal  improvements"  did  not  include  the  public  roads  of  the  State,  and  if  there  is 
any  doubt  about  it,  it  seems  to  me  that  this  body  ought  to  set  that  doubt  at  rest  by 
saying  that  the  words  "any  work  of  internal  improvement"  shall  not  be  construed  to 
include  public  roads  of  the  Commonwealth.  It  seems  to  me  to  be  desirable  that  the 
State  should  be  in  a  position  to  give  some  aid  in  thi^  matter.  I  think  the  reason  given 
by  the  gentleman  from  Albemarle  (Mr.  Boaz)  for  refusing  to  adopt  this  amendment  is 
the  strongest  reason  that  could  be  given  for  its  adoption. 

Mr.  William  A.  Anderson:  I  would  like  to  ask  the  gentleman  if  he  has  carefully 
considered  the  language  of  this  amendment.  I  know  of  public  county  roads  in  Virginia, 
but  I  do  not  know  of  any  public  State  road  in  Virginia  unless  it  is  the  railroads,  and  the 
railroads  are  treated  under  the  corporation  article  as  public  highways.  If  this  amend- 
ment is  adopted  it  might  throw  down  the  bars  with  regard  to  railroad  corporations. 

Mr.  Brown:  If  it  did  have  the  effect  of  throwing  down  the  bars,  it  could  only 
throw  them  down  to  the  extent  that  the  Legislature  of  this  State  could  go,  and  does 


2702  DEBxlTES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

^tnybody  expect  that  the  Legislature  would  go  to  the  extent  of  building  a  public  railroad? 

Mr.  Hamilton:  Mr.  Chairman,  I  agree  with  the  gentleman  from  Albemarle.  I  think 
it  is  very  dangerous  to  make  such  an  exception.  The  State  of  Virginia  has  been  put  to 
an  enormous  amount  of  trouble  because  of  the  use  of  her  funds  and  credit  in  connec- 
tion with  such  improvements.  It  is  unquestionably  true  that  it  began  with  the  turnpike 
companies;  but  it  makes  no  difference  whether  you  are  going  to  build  turnpikes  through 
a  company  or  build  them  directly  by  the  State.  I  do  not  doubt  that  certain  works  that 
have  been  built  by  the  city  of  Richmond  would  have  been  much  less  expensive  if  they 
had  been  built  for  them  by  a  corporation.  The  State  may  undertake  to  build  roads, 
public  county  roads,  in  different  parts  of  the  State.  But  then  the  question  would  arise 
where  the  State  money  is  going  to  be  put  to  build  these  roads. 

The  people  ought  to  build  these  roads  in  their  own  localities.  I  would  have  no 
objection  to  an  amendment  reading  that  this  was  not  to  prevent  the  use  of  convicts  in 
the  penitentiary  upon  the  public  roads  to  better  them,  the  same  to  be  paid  for  by  the 
localities  where  they  are  used,  that  it  should  not  forbid  the  establishment  of  the  office 
of  State  Engineer,  whose  advice  with  respect  to  building  county  roads  might  be  taken; 
but  I  do  not  think  the  funds  of  the  State  should  be  used  for  that  purpose. 

It  is  no  answer  to  say  that  you  cannot  create  a  debt,  under  another  section  that  we 
have  adopted,  for  this  purpose.  You  might  create  a  debt  under  a  section  prior  to  this 
to  meet  a  deficit  in  the  revenue  and  you  might  have  an  annual  deficit  in  the  revenue 
caused  by  the  State  undertaking  to  build  a  county  road  somewhere. 

I  think  the  amendment  is  wrong  in  principle,  and  I  hope  it  will  not  be  adopted  by 
the  committee. 

The  amendment  was  rejected. 

Mr.  Barbour:  Before  we  leave  that  section  I  wish  to  call  attention  to  a  very  grave 
injustice  which  this  provision  will  occasion  in  my  locality.  There  is  a  provision  here 
prohibiting  any  county,  city  or  town  from  subscribing  to  stock  of  any  company  for  the 
construction  of  a  railroad.  At  the  last  session  of  the  Legislature  a  bili  was  passed  per- 
mitting the  counties  of  Culpeper  and  Rappahannock  to  vote  upon  a  subscription  for 
the  erection  of  a  railroad  to  run  from  Rappahannock  county  down  to  Fredericksburg. 
The  gentlemen  interested  in  that  scheme  which  was  purely  a  local  one,  with  no  outside 
capital  interested  in  it.  have  had  surveys  and  estimates  made  for  the  building  of  the 
road. 

Mr.  Thom:  Is  there  any  difference  between  a  case  where  purely  local  capital  is 
interested  and  where  outside  capital  is  interested? 

Mr.  Barbour:  None  that  I  know  of.  I  want  to  say  that  these  gentlemen  have 
acted  on  the  faith  of  this  act  of  the  General  Assembly  and  they  have  furnished  this 
money  for  the  purpose  of  making  the  survey  and  having  estimates  made,  and  then 
expect  to  have  had  subscriptions  to  the  stock  from  these  counties.  In  the  county  of 
Rappahannock  the  vote  will  be  taken  on  the  3rd  day  of  April.  It  depends  on  how  Rappa- 
hannock goes  on  the  question  as  to  what  Culpeper  will  do.  If  Rappahannock  votes  for 
it  Culpeper  will  probably  vote  for  it.  I  do  not  think  it  would  be  just  to  cut  these  peo- 
ple out  of  the  money  they  have  invested  in  this  enterprise,  which  is  what  it  would 
mean — just  that  much  money  thrown  away  unless  we  can  get  the  local  people  there  to 
make  up  the  deficit.  I  hope  the  committee  will  be  able  to  make  some  provision  that 
will  cover  this  case.  It  vs^ould  certainly  be  a  very  great  hardship  upon  the  people  whe 
are  interested  in  this  scheme  to  be  cut  up  by  the  roots  in  this  manner. 

The  Chairman:  Are  there  any  other  amendments  to  this  section?  If  not  the 
Secretary  will  read  Section  19. 

Section  19.  All  taxes,  licenses,  and  other  revenue  of  the  State,  shall  be  collected 
by  its  proper  ofRcers  and  paid  into  the  State  treasury.  No  money  shall  be  paid  out  of 
the  State  treasury  except  in  pursuance  of  appropriations  made  by  law;  and  no  appro- 
priation shall  be  made  for  the  payment  of  any  debt  or  obligation  created  in  the  name 
of  the  State  of  Virginia  during  the  war  between  the  Confederate  States  and  the  United 
States.  Nor  shall  any  county,  city  or  town,  pay  any  debt  or  obligation  created  by  such 
county,  city  or  town  in  aid  of  said  war. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


.2703 


The  Chairman:    Are  there  any  amendments  to  Section  19? 

Mr.  Eggleston:  Mr.  Chairman,  I  want  to  offer  an  amendment  to  that  section,  whici 
I  will  ask  the  Secretary  to  read. 

Add  after  the  word  "law,"  in  line  5,  Section  19.  the  following: 

And  no  such  appropriations  shall  be  made  which  are  payable  more  than  two  years 
after  the  date  of  the  law  authorizing  the  same. 

The  object  of  that  amendment  is  to  require  that  the  moneys  paid  out  by  the 
treasurer  shall  be  paid  out  under  the  provisions  of  the  regular  appropriation  bills 
passed  by  each  and  every  session  of  the  General  Assembly.  That  is  the  rule  now,  but 
there  are  a  good  many  of  these  appropriations  that  are  paid  from  year  to  year,  under 
no  appropriation  bill,  but  under  what  is  called  a  permanent  appropriation.  Regular 
appropriation  bills  are  passed  every  two  years;  but  there  are  a  good  manj*  payments 
made  out  of  the  public  treasury,  under  what  are  called  general  bills,  and  they  are  paid 
whether  they  are  in  the  regular  appropriation  bills  for  that  purpose  or  not.  It  seems 
to  me  that  this  is  a  bad  principle.  In  the  first  place,  you  never  know  what  the  cost  of 
running  the  State  government  is.  You  cannot  take  the  appropriation  bills  and  tell 
within  8100,000  what  the  cost  of  running  the  State  government  is.  For  instance,  if 
you  take  such  things  as  the  State  Board  of  Health.  There  is  a  law  creating  the  State 
Board  of  Health,  and  in  that  law  is  a  provision  that,  annually,  the  president  of  the 
board  shall  be  allowed  to  draw  out  for  the  necessary  expenses  of  the  board  a  sum  not 
to  exceed  $5,000.  That  is  annual,  and  he  can  draw  that  money  whether  you  have  a 
session  of  the  Legislature  or  not,  and  whether  you  pass  an  appropriation  bill  or  not. 
There  are  a  great  many  others  of  the  same  sort.  For  instance,  take  the  subject  of 
assessing  personal  property.  In  this  State  it  has  been  the  custom,  for  years'  to  put 
into  the  appropriation  bills  an  item  of  820,000  to  pay  for  the  assessments  of  personal 
property,  whereas  the  actual  cost  of  the  work  is  from  860,000  to  $75,000,  and  the  dif- 
ference between  the  |20,000,  the  nominal  amount  put  into  the  appropriation  bill,  and 
the  real  expense  of  the  item,  is  paid  out  by  the  Auditor,  because  the  law  says  these 
commissioners  of  the  revenue  shall  have  a  certain  percentage  of  the  assessments  they 
have  made,  as  compensation.  I  think  that  is  wrong.  The  Legislature  meets  here  and 
levies  taxes  to  be  collected  for  State  purposes.  At  the  same  time  it  undertakes  to 
appropriate  money  for  those  purposes  for  two  years,  and  it  ought  to  appropriate  all  of 
it.  Not  a  dollar  ought  to  go  out  of  the  public  treasury  unless  it  is  on  a  general  appro- 
priation bill  or  on  some  appropriation  bill  passed  at  stated  intervals. 

Mr.  Hatton:  Would  it  not  be  necessary,  under  some  circumstances  at  least,  to 
make  the  time  longer  than  two  years?  The  General  Assembly  is  authorized  to  sit  for 
sixty  days,  and  it  only  meets  every  two  years,  so  that  an  appropriation  bill  passed  in 
the  first  days  of  one  General  Assembly,  providing  for  an  appropriation,  would  expire 
if  the  appropriation  bill  succeeding  it  was  passed  in  the  latter  days  of  the  next  General 
Assembly.  It  would  certainly  be  necessary  to  add  something  to  the  two  years  in  order 
to  prevent  that  hiatus. 

Mr.  Eggleston:  The  General  Assembly  could  extend  the  appropriation  for 
ten  days  if  necessary,  or  it  could  hurry  up  the  appropriation  bills,  which 
would  be  the  best  thing  tbat  could  happen,  and  pass  them  promptly  at  the  beginning  of 
the  session  instead  of  at  the  end  of  it.  So  far  as  the  language  of  this  amendment  is 
concerned.  I  have  no  objection  to  having  it  changed;  but  it  does  seem  to  me  that  the 
people  of  this  State  have  the  right  to  know  what  it  costs  them  to  run  their  State  govern- 
ment, and  the  only  way  to  find  it  out  is  to  see  to  it  that  each  and  every  item  shall  be 
put  into  these  appropriation  bills. 

Mr.  Eggleston:  I  have  no  objection  to  making  any  change  along  that  line  and  1 
will  make  the  amendment  read  in  this  way: 

And  no  such  appropriation  shall  be  made  payable  more  than  two  years  after  the 
end  of  the  session  of  the  General  Assembly  during  which  the  law  is  passed  authorizing 
the  same. 


2704  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Keezell:  I  am  in  favor  of  the  amendment  offered  by  the  gentleman  from 
Charlotte  because  I  think  the  people  have  the  right  to  know  what  their  government 
costs  them  as  a  whole  and  in  each  of  its  departments.  They  ought  to  be  able  each  year, 
to  take  the  appropriation  bill,  as  passed  by  the  General  Assembly,  and  know  that  it 
contains  all  of  the  items  of  costs  of  the  different  departments  of  the  government.  I 
know  that  under  present  conditions,  money  is  paid  out  that  is  not  contained  in  appro- 
priation bills.  I  do  not  say  it  is  improperty  paid  out  because  I  do  not  think  it  is.  An 
act  is  passed  and  there  is  attached  to  it  a  salary  for  an  officer  or  an  appropriation  for 
carrying  out  the  act.  Some  of  these  things  are  included  in  the  appropriation  bill  and 
some  of  them  are  not.  You  cannot,  by  getting  the  appropriation  bills  and  making  an 
examination  of  them  find  all  of  the  items  of  public  expense.  I  will  give  you  an  illustra- 
tion. During  the  time  of  our  debt  settlement  there  was  provided,  in  the  office  of  the 
treasurer  of  the  Commonwealth,  what  is  known  as  a  coupon  clerk.  There  was  a  special 
act  creating  this  office  and  providing  a  salary  for  the  clerk.  Each  year  there  was  an 
appropriation  for  the  salary  of  the  treasurer  and  for  the  clerical  force  of  his  office,  and 
this  coupon  clerk  was  not  included  because  he  was  paid  under  this  special  act.  Not 
until  three  or  four  years  ago  was  the  coupon  clerk  ever  included  in  the  appropriation 
bill  and  I  do  not  suppose  there  were  five  men  in  the  General  Assembly  who  knew  of 
of  the  fact  that  $1,200  or  whatever  amount  the  salary  was  fixed  at  was  paid  out  to  this 
clerk  for  clerical  service  in  the  office  of  the  treasurer.  I  will  give  you  another  instance. 
I  think  you  will  find  somewhere  in  the  Code  a  provision  appropriating  $2,000  for  certain 
clerical  work  in  the  executive  department.  I  understand  that  for  a  great  many  years 
the  General  Assembly  thought  they  were  making  an  appropriation  sufficient  for  clerical 
service  in  the  executive  department  and  that  each  year  this  $2,000  was  divided  up 
among  those  persons  whom  the  Legislature  thought  were  already  sufficiently  com- 
pensating. That  continued  until  the  recent  executive  called  attention  to  the  fact  and 
asked  that  the  law  be  repealed,  which  was  done  at  a  recent  session  of  the  General 
Assembly.  That  $2,000  was  not  in  the  appropriation  bill  but  was  paid  each  year  and 
the  gentlemen  who  were  supposed  to  be  paid  under  the  general  appropriation  bill 
received  it. 

I  say  that  I  think  the  people  have  the  right  to  know  such  facts  as  these.  It  is 
nothing  more  than  right  that  all  appropriations  and  expenditures  should  be  shown  on 
the  appropriation  bills,  so  that  any  one  may  find  out  the  entire  cost  of  each  one  of  the 
departments  of  the  government  in  any  year  by  an  examination  of  the  bill  appropriating 
the  public  revenues  for  that  year. 

The  amendment  was  adopted. 

Sections  20,  21,  22  and  23  were  adopted. 

Mr.  Withers:  I  desire  to  offer  this  as  an  independent  section.  I  do  not  desire  to 
discuss  it.  I  would  rather  have  the  committee  consider  whether  or  not  they  will  adopt 
it  and  let  it  be  settled  once  for  all  by  the  Convention.  It  can  be  disposed  of  in  a  very 
short  time. 

The  Chairman:    The  Secretary  will  report  the  amendment. 

Sec.  24.  On  all  tracts  of  land  and  lots  and  the  improvements  thereon,  and  all 
personal  property,  choses  in  action,  moneys,  credit  and  capital,  not  exempt  from  taxa- 
tion by  the  provisions  of  this  article,  there  shall  be  a  tax  of  20  cents  on  every  hundred 
dollars  of  the  assessed  value  thereof,  the  proceeds  of  which  shall  be  applied  to  the 
^support  of  the  government,  and  a  further  tax  of  ten  cents  on  every  hundred  dollars  of 
the  assessed  value  thereof,  which  shall  be  applied  to  the  support  of  the  public  free 
school  of  the  State,  provided  that  after  the  1st  day  of  January,  1907,  the  tax  rate  upon 
such  real  and  personal  property,  choses  in  action,  moneys,  credits  and  capital  for  the 
support  of  the  government  and  for  public  free  school  purposes  shall  be  such  as  may  be 
prescribed  by  law. 

Mr.  Withers:  I  want  to  say,  Mr.  Chairman,  that  this  section  is  practically  self- 
explanatory. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA.  2705 

Mr.  Keezell:  You  will  find  that  if  the  tax  rate  is  reduced  in  accordance  with  the 
article  which  you  propose,  you  will  either  have  to  reduce  the  State  appropriation  for 
schools  or  you  will  have  to  increase  your  rate  of  tax.  You  will  find  that  your  twenty 
cents  will  probably  be  more  than  enough  for  governmental  purposes,  but  that  the  ten 
cent  rate  would  be  less  than  is  needed  for  the  public  free  schools. 

Mr.  Withers:  My  estimate  was  that  this  rate  would  provide  for  that  very  emer- 
gency. The  gentleman  fro?n  Fairfax  (Mr.  Moore)  has  a  statement  from  the  Auditor 
himself,  I  believe,  which  deals  with  the  increased  and  the  unincreased  appropriations. 
The  reason  I  offer  this  is  that  if  this  Convention  has  done  the  work  it  believes  it  has 
done,  it  has  reduced  the  expenses  of  the  government.  The  result  of  this  and  other 
reports  has  been  to  increase  the  income  from  various  properties  of  the  State.  If  the 
Convention  has  done  the  work  it  believes  it  has  done  I  believe  that  the  people  of  the 
State  are  entitled  to  the  benefit  of  the  reduction,  and  that  for  four  years  and  maybe 
even  for  eight  years,  it  is  perfectly  safe  to  make  the  reduction  therein  specified  without 
in  any  way  affecting  the  appropriations  for  schools,  public  institutions,  hospitals,  etc. 
At  the  same  time  it  will  give  to  the  citizens  of  the  State  the  benefit  of  the  work  of  this 
Convention.  I  merely  make  this  suggestion  to  prevent  taking  up  the  time  of  the  com- 
mittee. I  think  it  would  be  wise  to  permit  this  section  to  be  printed,  and  suck 
criticisms  as  are  desired  can  then  be  made  upon  it,  and  the  whole  subject  can  be 
settled  in  Convention  without  discussing  the  subject  twice. 

Mr.  R.  Walton  Moore:  I  think  it  would  be  well  to  print,  along  with  the  section 
offered  by  the  gentleman  from  Danville  (Mr.  Withers),  a  letter  from  the  Auditor  of 
Public  Accounts,  which  contains  a  statement  bearing  upon  this  question.  Anticipating 
that  the  proposition  would  be  made  to  reduce  the  tax-rate,  I  communicated  with  the 
Auditor,  and  I  have  here  a  letter  written  by  him  yesterday,  which  contains  some  infor- 
mation that  the  Committee  of  the  Whole  and  the  Convention  will  probably  desire  to 
have.  Before  this  letter  is  read,  I  merely  wish  to  draw  the  attention  of  the  committee 
to  the  fact  that  the  reduction  to  the  extent  proposed  by  the  section  of  the  gentleman 
from  Danville  will,  according  to  the  Auditor's  letter,  involve  a  loss  of  $514,198.99,  of  the 
revenue  of  the  State,  which,  of  course,  will  have  to  be  covered  in  some  way.  Without 
making  any  motion  I  will  ask  the  Secretary  to  read  this  letter,  so  that  it  may  go  into> 
the  report  of  to-day's  proceedings. 

Commonwealth  of  Virginia, 
Office  of  the  Auditor  of  Public  Accounts. 

Richmond,  Va.,  Feby.  24,  1902. 

Hon.  R.  Walton  Moore: 

Dear  Sir: — Replying  to  yours  of  this  date,  the  estimate  of  receipts,  annually, 
made  by  me  for  the  Finance  Committees  of  each  House  of  the  present  General 
Assembly  was  $3,541,045.43,  and  the  estimate  of  the  annual  expenditures,  if  the  same 
sum  be  paid  for  pensions  as  was  paid  last  year  was  $3,213,368.53;  but  should  pensioners 
under  the  last  pension  act  be  paid  the  pensions  named  in  the  act,  instead  of  the  sum 
paid  them  last  year,  which  was  only  one-fifth  of  pensions  named  in  the  act,  the  estimate 
was  $3,376,848.53. 

The  loss  in  receipts  by  a  reduction  in  the  rate  of  taxation  of  10  per  cent,  would  be 
$514,198.99.    These  estimates  are  based  upon  the  laws  now  in  force. 

Very  truly  yours, 

Morton  Maeye, 
Auditor  Public  Accounts. 

On  motion  of  Mr.  Fairfax  the  committee  rose  and  the  President  resumed  the  chair. 
On  motion  of  Mr.  Thomas  H.  Barnes  the  Convention  adjourned  until  tomorrow, 
Wednesday,  February  26,  1902,  at  10  o'clock  A.  M. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


WEDNESDAY,  February  26,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  John  Hannon,  D.  D. 

TAXATION  AND  FINANCE. 

On  motion  of  Mr.  Fairfax:  The  Convention  resolved  itself  into  Committee  of  the 
Whole  for  the  purpose  of  further  considering  the  report  of  the  Committee  on  Taxation 
and  Finance,  Mr.  Ayers  in  the  chair. 

The  Chairman:  The  business  before  the  Convention  is  the  report  of  the  Com- 
mittee on  Taxation  and  Finance.    The  Secretary  will  read  Section  1. 

I 

Sec.  1.  All  property,  except  as  hereinafter  provided,  shall  be  taxed;  all  taxes  what- 
soever, v/hether  State,  local  or  municipal,  shall  be  uniform  upon  the  same  class  of  sub- 
jects within  the  territorial  limits  of  the  authority  levying  the  tax. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  of  the  gentleman 
from  Petersburg  (Mr.  Hamilton). 

Mr.  Wysor:  Gentlemen  of  the  committee,  I  will  occupy  your  time  but  a  few 
moments  in  discussing  the  amendment  offered  by  the  gentleman  from  Petersburg  (Mr. 
Hamilton)  to  Section  1  of  the  report  of  the  Committee  on  Taxation  and  Finance.  I  am 
not  in  tune  to  speak  this  morning.  I  have  the  epizootic.  Epizootic  means  a  distemper. 
Sometimes  people,  to  be  fashinonable,  call  it  la  grippe. 

There  is  not  much  left  to  be  said  on  the  question  by  the  two  gentlemen  from 
Petersburg.  The  Cockade  City  should  be  proud  of  her  representation  upon  this  floor. 
They  are  able;  they  are  eloquent;  they  are  patriotic.  I  have  a  great  deal  of  respect  for 
the  report  of  the  Committee  on  Finance.  I  know  that  it  is  entitled  to  a  great  deal  of 
weight  in  this  body.  I  know  the  gentlemen  who  compose  the  committee  and  their 
opinions  ought  to  be  worthy  of  great  consideration  on  almost  any  subject.  I  cannot 
help  but  think,  however,  that  the  committee  has,  to  some  extent,  drummed  up  a  support 
for  its  report.    I  do  not  mean  to  criticise  that  at  all. 

I  think,  however,  they  ought  to  have  followed  the  example  of  the  Corporation  Com- 
mittee, of  which  I  am  an  humble  member,  and  filed  a  report  that  would  have  gone 
through  the  Convention  of  its  own  weight  and  merit,  without  any  previous  log-rolling 
and  electioneering.  (Laughterl. 

Now,  gentlemen,  the  present  Constitution  of  this  State  provides  that  taxation  shall 
be  equal  and  uniform.  The  Committee  on  Finance  undertakes  to  strike  that  provision 
out  of  the  Constitution,  which  has  been  in  it  for  more  than  half  a  century.  Taxation 
shall  be  equal  and  uniform.  I  have  examined  to  some  extent  these  scientific  books 
which  were  handed  me  by  the  gentleman  from  Richmond  (Mr.  Meredith) ;  but  they 
are  too  scientific  for  me.  I  would  rather  look  at  the  question  in  a  plain  common  sense 
kind  of  way.  I  say  that  equality  and  uniformity  in  taxation  is  a  desirable  result,  and 
one  that  must  commend  itself  to  every  man's  judgment.  We  do  not  need  any  scientific 
w^ork  to  prove  that.  The  equivalent  for  taxation  is  said  to  be  protection.  Of  course, 
protection  is  not  equal  altogether,  but  it  is  as  equal  as  it  can  be.  We  frequently  hear 
the  expression  that  citizens  are  entitled  to  the  equal  protection  of  the  law.  Well,  then, 
they  should  pay  for  that  equally.  No  man  should  be  made  to  pay  a  greater  rate  of 
taxation  than  any  other  man.  As  a  matter  of  fact,  the  rich  people  can  pay  their  taxa- 
tion much  more  easily  than  can  the  poor  people,  but  that  is  no  reason  why  you  should 
tax  them  at  any  greater  ratio.  The  rich  people  frequently  think  and  say  that  the  poor 
people  do  not  pay  anything.  That  is  not  a  fact.  The  poor  people  pay  as  much  as  the 
rich  people,  but  it  is  harder  for  them  to  pay  their  taxes  than  it  is  for  the  rich.  I  have 
to  grind  and  sweat  and  economize  to  pay  my  taxes.    Does  Mr.  Rockefeller  mind  paying 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2ro: 


his  taxes?  Does  Mr.  Vanderbilt  mind  paying  his  taxes?  They  can  pay  their  taxes  and 
give  millions  of  dollars  to  public  libraries  and  charities.  So,  then.  I  say  all  men  should 
be  taxed  at  an  equal  ratio,  so  that  every  man  T\-ill  contribute,  if  possible,  equally  to  the 
support  of  the  government.  If  you  were  to  leave  the  Legislature  absolutely  free  in  the 
matter,  and  leave  it  unlimited,  it  would  seek  to  bring  about  just  such  a  system  of  taxa- 
tion as  that.  All  just  bodies  would  undertake  to  do  that.  Why,  then,  put  in  the  new 
Constitution  a  provision  that  they  may  tax  property  unequally.  Taxation,  under  the 
present  Constitution,  with  a  provision  in  it  for  equal  and  uniform  taxation,  is  more  or 
less  unequal.  We  have  a  provision  in  the  present  Constitution,  and  also  in  the  report 
of  the  committee,  that  property  that  cannot  be  reached  according  to  value  must  be 
reached  by  a  system  of  license  taxes.  But  still  the  principle  prevades  the  law  that 
taxation  must  be  equal  and  uniform.  So  I  think  that  it  devolves  upon  the  committee 
when  it  undertakes  to  change  a  proposition  that  has  been  in  our  fundamental  law  for 
half  a  century,  to  show  some  reason  for  it,  to  show  vrhy  that  change  should  be  made. 

You  cannot  get  a  member  of  the  Committee  on  Taxation  to  deny  the  proposition 
that  taxation  should  be  equal  and  uniform.  If  they  want  to  sustain  that  report,  they 
must  do  it  on  the  ground  that  the  provisions  of  the  report  will  leave  the  legislature 
unhampered,  and  that  under  such  a  provision  it  can  arrive  nearer  to  equality  and 
uniformity-.  They  should  be  required  to  sustain  that  proposition  in  order  to  carry  it 
before  the  body  properly.  They  provide  in  their  report  that  there  must  be  uniformity 
according  to  classes;  that  is.  that  you  may  tax  one  class  of  property  if  you  choose  to  do 
it,  higher  than  another  class.  It  provides  that  you  may  do  that.  If  they  want  to  bring 
about  uniformity  and  equality  by  such  a  system  as  that,  it  is  for  them  to  show  it.  The 
provision  on  its  face  shows  that  it  is  intended  to  bring  about  inequality.  The  purpose 
of  the  commission  is  to  tax  some  classes  higher  than  it  taxes  others.  I  say  it  is  an 
unjust  system  of  taxation,  if  you  give  the  right  to  tax  my  sheep  any  more  than  you 
tax  another  man's  cattle.  It  is  unjust  if  you  give  the  right  to  tax  telephone  or  telegraph 
companies  any  more  than  you  tax  the  farmer,  according  to  ratio.  What  right  have  you 
to  do  it?  If  I  put  SIO.OOO  in  a  telephone  company,  that  is  SIO.OOO;  if  a  farmer  puts 
$10,000  in  a  farm,  that  is  .SIO.OOO,  That  is  all  there  is  to  it.  'My  telephone  system  may 
be  worth  more  than  the  sum  of  Sli'-noo.  Well,  let  them  make  a  proper  assessment  and 
then  tax  us  at  the  same  ratio,  and  there  will  be  equality.  But  SIO.OOO  is  S10,000.  and 
that  is  all  there  is  in  it.  If  I  have  SIO.OOO  and  the  gentleman  from  Rockbridge  (Mr. 
Anderson)  has  SIO.OOO,  why.  you  must  tax  each  of  us  alike.  He  may  have  the  power  to 
make  more  money  out  of  his  SIO.OOO.  He  may  be  a  more  discreet  man  than  I.  He 
may  be  a  wiser  man  than  I.  Ten  thousand  dollars  in  his  hands  may  have  greater 
potentiality  than  SlO.Ono  in  my  hands,  but  he  is  entitled  to  that.  That  belongs  to  him. 
You  have  no  right  to  tax  his  energy  and  his  mentality.  So.  the  whole  proposition 
here,  then,  is:  "Shall  we  leave  to  the  Legislature  the  right  to  make  distinction  in 
imposing  taxes?"  That  is  the  proposition.  If  you  do  not  limit  the  Legislature  in  the 
Constitution  by  some  provision,  it  has  unlimited  power  to  tax;  it  can  tax  just  as  far  as 
the  necessities  of  the  government  require.  There  is  no  limit  to  its  power  at  all.  except 
when  it  goes  beyond  taxation  and  gets  to  the  point  of  confiscation.  That  is  the  only 
limit.  You  cannot  confiscate  a  man's  property-.  That  is  contrary  to  the  ftmdamental 
principles  of  Republican  government.  It  cannot  take  his  property  bodily  and  apply  it 
to  public  uses,  but  it  can  tax  it  to  any  extent,  so  long  as  it  stays  within  the  definition  of 
taxation  and  does  not  trench  upon  confiscation.  Now.  the  point  is.  shall  we  give  to  the 
Legislature  unlimited  power  to  do  that?  It  is  time  that  this  provision  does  confine  it 
to  a  rule  of  uniformity,  so  far  as  different  classes  are  concerned.  I  do  not  want  to  be 
understood  as  meaning  that  I  am  unwilling  to  trust  the  Legislature.  You  might  search 
the  records  there  from  beginning  to  end  of  the  meetings  of  the  Convention,  and  you  would 
not  find  a  single  place  where  I  have  said  anything  derogatory  of  the  Legislature.  It 
is  true,  the  other  day  I  did  vote  against  returning  our  thanks  to  the  House  of  Delegates, 
but  that  was  because  I  thought  the  Convention  had  asked  the  House  of  Delegates  for  its 


2708 


DEBATES  OF  THE  CO^TSTITUTIONAL  CONVENTION  OF  VIRGINIA^ 


cloak,  and  I  thought  it  was  its  duty  then,  as  the  Bible  enjoins,  to  give  its  coat  also.  I 
did  not  come  here  to  bury  the  Legislature.  I  leave  that  to  the  gentlemen  who  favor 
quadrennial  session.  I  came  here  to  praise  the  Legislature.  When  you  undertake  to 
bury  people,  it  is  a  two-sided  game.  If  I  undertook  to  bury  the  Legislature,  it  might 
bury  me.  (Laughter.) 

Now,  many  gentlemen  of  the  Convention  exhausted  themselves  yesterday  in  praising 
the  churches.  I  wanted  to,  but  I  could  not  get  in  a  word  of  praise,  I  could  not  edge  a 
word  of  praise  edgeways.  I  come  here  to  praise  the  Legislature.  I  want  to  praise  the 
churches  too.  I  did  not  get  a  chance  yesterday.  I  believe  in  the  churches.  Why,  I 
love  the  churches;  I  love  all  the  Young  Men's  Christian  Associations  and  all  of  these 
charitable  institutions.  I  want  them  all  to  know  that  I  am  going  to  stand  by  them; 
and  some  of  these  days  it  might  be  that  I  would  want  some  of  them  to  stand  by  me. 
(Laughter.) 

Now,  I  say  the  Legislature  is  one  of  the  greatest  representative  bodies  on  earth. 
It  has  furnished  a  great  many  great  men  to  this  country.  I  like  the  present  Legislature. 
They  are  a  set  of  noble  men.  They  are  able;  they  are  eloquent;  they  are  patriotic 
men.  In  some  respects  they  are  much  smarter  men  than  the  men  in  this  body,  though 
this  body  is  said  to  be  one  of  the  greatest  bodies  upon  the  face  of  the  earth.  (Laugh- 
ter.) Whenever  this  body  seeks  to  take  a  recess  for  any  length  of  time,  it  discusses 
for  a  long  time  as  to  whether  it  will  adjourn  with  pay  or  without  pay.  When  the  Leg- 
islature wants  to  adjourn  for  two  months,  it  simply  does  so  and  takes  the  pay  during 
all  that  time  and  says  nothing  about  it.  (Laughter.) 

It  is  a  patriotic  body  of  men.  Why,  I  just  noticed  the  other  day  that  they  are  talk- 
ing about  extending  their  session  for  thirty  days  without  pay,  in  order  to  serve  their 
Commonwealth.  Now,  it  may  be  that  when  the  time  comes  for  their  regular  adjourn- 
ment, and  in  order  to  give  the  Constitutional  Convention  a  pleasant  place  for  its  labors, 
it  will  reconsider  the  position  it  has  taken  of  continuing  its  session  for  thirty  days  for 
the  public  good,  and  for  the  greater  public  good  will  adjourn  sine  die,  so  as  to  permit 
the  Convention  to  occupy  the  hall  of  the  House  of  Delegates.  Whichever  course  it 
takes  it  will  undoubtedly  be  governed  altogether  by  patriotism.  It  is  a  stout  body  of 
men.  Why,  they  have  got  a  little  giant  over  there,  and  he  is  trying  to  rearrange  the 
Congressional  circuits  of  the  State  by  main  strength  and  awkwardness.  He  has  actually 
taken  hold  of  the  counties  of  Pulaski  and  Wythe  by  the  nape  of  the  neck,  as  it  were, 
and  has  undertaken  to  swing  them  clear  across  Giles  and  Craig  and  hitch  them  on  to 
Rockbridge.  I  do  not  know  what  we  will  do  with  that  little  giant  unless  we  get  into  his 
confidence,  like  Delilah  did  into  the  confidence  of  Sampson,  and  cut  his  hair  off. 
(Laughter.) 

Now,  if  I  had  the  money,  I  would  give  every  member  of  the  Legislature  a  gold- 
headed  cane.  I  would  give  them  a  banquet  and  while  they  feasted  at  the  board,  it 
it  would  be  under  the  influence  of  the  sweetest  music.  If  I  had  my  way  I  would  just 
gather  this  Legislature,  and  all  other  Legislatures,  under  my  wings  as  a  hen  gathers  her 
brood,  so  that  whenever  they  wanted  to  elect  a  man  to  the  United  States  Senate,  they 
would  not  do  so  until  I  did  the  clucking.  (Laughter.) 

Now,  by  way  of  praise,  the  finest  effort  I  ever  heard  in  that  direction  was  from  the 
gentleman  from  Russell  yesterday,  in  praising  the  churches,  and  he  was  so  convincing 
that  young  men  in  the  hall  arose  from  their  seats  and  joined  in  with  the  gentleman 
from  Russell.  They  said  they  agreed  with  the  gentleman  from  Russell,  man  after  man. 
The  gentleman  from  Russell  would  make  a  good  preacher.  He  would  have  a  great 
convicting  and  converting  power.  Why,  during  his  speech  the  gentleman  from  Mat- 
thews and  Gloucester  got  up  and  said  that  if  he  could  be  he  wanted  to  be  a  preacher. 
Well,  he  can  be.  He  can  make  as  good  a  preacher  as  he  has  made  a  member  of  this 
Convention.  (Laughter.)  He  can  be  an  angel  if  he  will  be,  and  I  suppose,  if  any  of 
you  would  examine  behind  his  arms  you  would  find  little  stubby  wings  there,  which  will 
grow  and  after  a  little  while  will  fall  back  in  long  pinions  gracefully  over  his  shoulders. 
He  can  be  an  angel,  and  with  the  angels  shine. 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


2709 


But  I  want  to  give  you  a  concrete  illustration  of  what  I  wish  to  show,  and  to  empha- 
size my  argument  against  this  section  of  the  report  of  the  Committee  on  Taxation  and 
Finance. 

By  hard  labor  and  by  strict  economy,  denying  myself  a  great  many  things  which 
I  think  I  ought  to  have  had,  I  have  accumulated  a  little  money,  and  put  it  into  a  tele- 
phone company.  The  gentleman  from  Albemarle  (Mr.  Boaz  by  denying  himself  of  things 
perhaps  which  he  ought  to  have  had,  and  by  strict  economy,  has  accumulated  a  good 
deal  of  money  and  put  it  into  an  apple  orchard  in  Albemarle  county.  Now  he  is  a  mem- 
ber of  the  Legislature.  He  is  over  there  in  the  Legislature  taxing  my  telephone  com- 
pany. I  am  not  a  member  of  the  Legislature.  He  has  not  got  now  the  same  power 
that  this  Committee  on  Finance  is  seeking  to-  give  him,  but  yet  he  has  been  placing  very 
burdensome  rates  on  telephone  companies.  Let  me  show  you  how  he  taxes  telephone 
companies.  In  the  first  place  he  put  the  property  tax  on  them  equal  to  the  property 
tax  on  any  other  property.  He  may  think  that  they  are  not  assessed  at  their  full  value. 
That  is  the  fault  of  the  assessment,  if  that  is  true,  but  he  puts  the  same  rate  of  taxation 
on  them  that  is  on  any  other  property.  He  has  taxed  the  interest  which  I  have  in  the 
telephone  company  by  taxing  its  property  and  everything  it  had.  He  then  taxed  my 
money  in  the  form  of  stock,  which  is  double  taxation. 

Not  satisfied  with  that  he  passed  an  act  that  on  every  600  telephones  there  should 
be  a  tax  of  50  cents;  between  600  and  1,000  telephones  there  should  be  a  tax  of  75  cents; 
for  all  telephones  over  1,000  and  under  2,000  there  should  be  a  tax  of  $1,  and  for  all 
over  2,000  there  should  be  $1.50.  He  had  already  imposed  double  taxes  before  that,  taxes 
on  the  property  and  taxes  on  the  stock,  and  he  comes  and  violates  all  rules  of  taxation 
and  undertakes  to  establish  an  ascending  scale  instead  of  a  descending  scale  of  taxa- 
tion.   And  when  I  talk  to  him  about  it  he  just  looks  at  me  and  grunts.  (Laughter.) 

Mr.  Keezell:  I  think  if  the  gentleman  had  been  present  before  the  General  As- 
sembly when  the  act  for  taxing  telephones  was  passed,  he  would  find  that  those  tele- 
phone companies  are  taxed  exactly  as  the  telephone  companies  suggested,  and  just  as 
they  asked  to  be  taxed.  He  would  find  that  they  came  before  the  General  Assembly  and 
asked  to  have  just  that  kind  of  a  tax  put  upon  them,  because  they  knew  that  the  law 
as  it  has  been  for  a  great  many  years  was  that  after  the  gross  receipts  of  a  telephone 
company  reach  $1,500,  they  have  to  pay  a  transmitter  tax  of  $1.50,  which  they  did  not 
have  to  pay  under  $1,500  gross  receipts.  They  did  not  want  to  pay  that  transmitter 
tax,  and  they  came  in  and  asked  that  this  very  scale  the  gentleman  is  complaining  of 
should  be  adopted  by  the  Legislature,  and  it  was  adopted — 50  cents  on  600  telephones, 
57  cents  on  1,000  telephones,  and  $1  on  2,000  telephones,  so  that  instead  of  adopting  an 
ascending  scale,  they  adopt  a  descending  scale. 

Mr.  Wysor:  I  have  different  information  as  to  how  the  bill  was  passed  or  at  least 
as  to  the  motive  for  passing  it.  The  gentleman  says  that  all  the  telephone  companies 
came  before  them  and  asked  for  this  tax,  this  descending  scale — I  say  that  it  is  an 
ascending  scale  and  he  says  that  it  is  a  descending  scale,  but  that  makes  no  difference. 
Our  company  was  not  in  existence  at  the  time,  and  therefore  did  not  come  before  the 
Legislature,  if  other  telephone  companies  did  come.  Now,  it  dont  matter  much  about 
that.  He  says  these  independent  companies  all  over  the  State  came  and  asked  that. 
At  the  time  there  was  not  a  single  telephone  company  in  the  State  except  the  Bell 
Company  that  had  600  phones — not  a  single  one,  and  they  knew  that  not  a  single 
one  except  the  Bell  would  have  to  pay  over  50  cents  on  a  phone,  and  the  idea  seems 
to  have  been,  "  Here  is  a  good  chance  to  get  in  under  the  belt  of  the  Bell  people,,"  and 
the  Legislature  said,  "  We  will  pass  that  bill,  because  it  won't  hurt  any  of  the  independ- 
ent companies,  and  it  will  reach  the  Bell  people.  Let  us  reach  the  Bell  Company." 
That  is  what  I  understand  was  done.  Is  that  a  proper  way  to  tax,  to  establish  an  unjust 
system  of  taxation  for  the  purpose  of  reaching  the  Bell?  If  the  Bell  Telephone  Com- 
pany is  doing  anything  it  ought  not  to  do,  are  you  going  to  come  in  and  provide  an 
unjust  system  of  taxation?    Is  it  a  matter  of  fact  that  when  that  law  was  passed  there 


2710 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


was  not  a  telephone  company  except  the  Bell  in  the  State  that  had  600  phones,  and  they 
knew  they  would  not  have  to  pay  for  more  than  600.  All  telephone  companies  are 
trying  to  have  this  unjust  law  amended. 

I  just  want  to  show  you  what  may  sometimes  be  done,  even  with  an  express  pro- 
vision in  the  Constitution  for  equal  and  uniform  taxation.  They  put  the  ascending 
scale  on  telephone  companies — the  gentleman  from  Rockingham  (Mr.  Keezell)  says  it 
is  a  descending  scale;  let  us  see  about  that;  50  cents,  75  cents,  $1,  $1.50 — is  that  a 
rise? 

Mr.  Keezell:  No,  sir,  commence  at  $1.50  and  go  down  and  then  it  is  descending. 
(Laughter.) 

Mr.  Wysor:    Yes,  but  the  system  does  not  run  that  way. 

Mr.  Keezell:  Yet  it  does.  It  has  been  $1.50  at  all  times,  against  telephones,  in 
Virginia — $1.50  on  each  transmitter  before  that  time  and  the  tax  goes  down  from  that. 

Mr.  Wysor:  That  is  a  straight  tax.  Unless  it  amounts  to  confiscation  or  is 
excessive,  that- would  be  all  right,  $1.50  on  all  'phones.  That  puts  all  the  companies 
on  the  same  footing,  a  tax  of  50  cents  per  'phone  on  all  the  companies  would  put  all  of 
them  on  the  same  footing,  or  $1  on  a  'phone  would  do  so;  but  they  not  only  make  a 
distinction  in  the  system  of  taxation  between  telephone  companies  and  other  companies 
and  persons,  but  they  make  a  distinction  between  the  telephone  companies  themselves. 
I  want  to  show  you  what  that  system  of  taxation  will  do  and  what  injustice  it  might 
impose  upon  a  company,  when  untrammelled  and  unlimited. 

I  want  to  show  you  what  a  distinction  they  make  between  telephone  companies 
themselves.  They  say  a  man  who  has  600'phones  shall  pay  50  cents.  They  say  a  man 
who  has  1,100  'phones  shall  pay  $1,  just  double  what  he  man  who  has  600  pays.  What 
right  have  they  to  do  that?  That  may  be  unconstitutional.  They  say  the  man  who 
has  the  most  'phones  will  make  tlie  most  money.  How  do  they, know  that.  How  do 
they  know  that  he  is  making  the  most  money?  The  man  who  has  the  smaller  number 
of  'phones  may  be  making  the  most  money,  according  to  the  locality,  according  to  the 
circumstances  that  surround  him,  according  to  the  manner  in  which  he  manages  his 
business. 

Now  they  have  taxed  our  telephone  companies  that  way.  What  do  they  know 
about  our  company?  How  much  do  we  make?  Why  tax  us  in  that  way?  Why  not  tax 
our  property  according  to  value?  How  much  have  we  made?  Mr.  Boaz  doesn't  know. 
We  are  not  making  unreasonable  charges.  We  have  just  been  serving  the  public.  Yet, 
when  I  talk  to  my  friend  Boaz  about  this  matter,  he  just  looks  at  me  and  grunts. 
(Laughter.) 

Now,  I  say  ought  there  not  be  some  limitation  on  the  Legislature?  Ought  we  not 
to  impress  it  with  the  idea  that  taxation  should  be  equal  and  uniform?  I  would 
like  to  have  power  to  tax  the  apple  orchard  of  the  gentleman  from  Albemarle  a  little 
while.  I  believe  I  would  be  more  just  to  him  than  the  present  law  is  to  telephone  com- 
panies. I  happened  to  be  looking  through  the  agricultural  report,  and  I  found  a  picture 
of  his  orchard  and  of  himself  in  it.  It  is  a  beautiful  picture — I  mean  the  picture  of  the 
orchard.  (Laughter.)  The  gentleman's  picture  is  right  at  the  orchard.  It  is  a  good 
picture  of  Mr.  Boaz,  too.  I  can  see  his  little  goatee  right  on  his  chin.  (Laughter.) 
Now,  listen:  At  the  foot  of  the  picture  is  written,  "A  famous  pippin  orchard  in 
Albemarle  county,  containing  750  trees;  $21,000  in  the  last  five  years;  the  property  of 
Hon.  William  H.  Boaz." 

Why  didn't  he  put  that  ascending  scale  on  that  orchard?  (Laughter.)  Every  time 
he  sells  1,000  bushels  of  apples,  say  they  should  be  free,  and  then  the  next  1,000  charge 
$2.50,  on  the  first  thousand  $5,  on  the  next  thousand  $10,  and  so  on,  raising  the  scale  on 
every  thousand  bushels  of  apples  he  sells.  Would  he  like  that  system  of  taxation?  In 
this  picture  he  looks  like  he  is  satisfied  with  the  present  status.  Why,  he  stands  back 
against  one  of  the  rails  of  the  fence,  under  a  wealth  of  apple  bloom  and  fragrance,  and 
he  is  the  most  contented  looking  man  that  ever  I  saw.    He  reminds  me  of  that  injunc- 


DEBATES  OE  THE  COXSTIiniOXAL  COXTEXIIOX  OE  VIEGIXIA. 


•2rii 


tion  of  St.  Paul  in  ihe  Scriptures:  In  ^'hatever  state  you  are,  learn  to  be  content 
therewith."  I  imagine  right  now,  gentlemen,  that  he  hears  the  partridge's  call  in  his 
fields  of  waving  grain,  and  the  tune  of  the  lark  in  his  meadow  as  she  lifts  herself  on 
easy  wing  to  greet  the  coming  sun  with  tuneful  note. 

I  was  up  here  at  the  Bijou  Theatre  the  other  night,  and  I  saw  the  moving  pictures 
in  the  vitagraph,  and  they  apparently  made  the  pictures  come  down  out  of  a  frame  and 
VN-alk  along  on  the  stage  and  dance  and  move  before  us.  I  carried  the  idea  a  little 
further,  and  I  thought  that  maybe  it  was  the  vrork  of  a  magician,  and  that  these  pictures 
did  have  life  in  them,  and  that  they  did  come  down  out  of  the  frames  and  dance  and 
walk  on  the  £oor.  And  now,  as  I  stand  and  look  at  the  gentleman's  picture,  he  looks  to 
me  as  if  he  was  going  to  walk  right  down  out  of  the  picture  and  dance  and  walk.  I 
carry  the  idea  a  little  further.  It  seems  to  me  that  I  can  hear  a  divine  melody  bursting 
from  his  throat: 

"  When  the  apple  orchard  is  in  bloom. 
When  the  apple  orchard  is  in  bloom." 

Now.  what  do  you  think  about  the  acoustics  of  this  house?    i; Great  laughter.) 

Why,  that  song  of  the  gentleman  from  Albemarle  coming  from  his  picture  to  me, 
is  like  the  sweet  south  breathing  upon  a  bank  of  violets,  stealing  and  giving  odor."  It 
sounds  to  me  like  the  song  of  a  mermaid  on  a  dolphin's  back,  uttering  such  dulcet  and 
harmonious  breath  that  the  rude  sea  grows  civil  at  her  song,  and  certain  stars  shoot 
wildly  from  their  spheres  to  hear  the  seamaid's  music. 

Xow.  Gentleman,  I  have.  I  think,  succeded  in  illustrating  to  you  that  the  Legislature, 
with  unlimited  powers  of  taxation,  might  tax  some  property  at  a  greater  rate  than  other 
property.  Xow,  gentlemen,  we  want  property*  when  it  is  assessed,  to  be  assessed  equally. 
Common  sense  teaches  you  that  we  ought  to  put  every  man  on  an  equal  footing.  I  do 
not  mean  to  say  that  I  think  the  gentleman  from  Albemarle  (Mr.  Boazj  means  to  be 
unjust.  I  think  he  is  one  of  the  best  members  of  this  body.  He  has  been  eloquently 
spoken  of  as  the  watchdog  of  the  treasury.  In  examining  this  picture  I  think  it  would 
be  also  appropriate  to  call  him  the  watchdog  of  the  Albermarle  apple  orchard.  (Laugh- 
ter.) 

I  say  he  is  an  excellent  member  of  this  Convention,  and  of  the  Legislature,  and  a 
nice  gentleman  every  way,  and  I  do  not  charge  anything  improper  to  him.  I  am  just 
trying  to  show  you  how  one  set  of  men  might  get  together  and  undertake  to  tax  some 
classes  of  property  more  than  they  tax  others.  Why  should  the  telephone  company  be 
taxed  so  much  more  than  the  apple  orchard?  An  apple  orchard  is  a  good  thing.  I  like 
to  see  it  in  bloom  and  to  smell  the  fragrance  of  the  apple  blossoms.  But  the  telephone 
is  a  good  thing  too.  It  brings  us  into  communication  with  one  another.  It  will  take 
from  point  to  point  a  war  message.  It  will  take  a  message  of  love  which  is  as  tender 
as  the  tender  horns  of  a  cockle  snail,  and  will  carry  it,  though  it  be  as  soft  and  delicate 
as  the  notes  of  bright  Apolo's  lute  strung  with  his  hair.  It  is  just  as  laudable  an  enter- 
prise as  raising  apples,  and  there  is  no  reason  why  it  should  be  discriminated  against. 

I  have  just  used  this  concrete  illustration  to  emphasize  a  principle.  I  want  an 
equal  and  uniform  system  of  taxation.  Xow,  gentlemen,  in  conclusion,  I  want  to  say 
in  all  seriousness,  God  forbid!  that  W.  H.  Boaz  should  have  tmlimited  power  to  tax  my 
'phones, 

"  When  his  apple  orchard  is  in  bloom, 
"WTien  his  apple  orchard  is  in  bloom." 

(Great  laughter  and  applause.) 

Mr.  Keezell:    Before  the  gentleman  takes  his  seat  I  want  to  ask  him  a  question. 

Are  not  the  inequalities  of  which  he  complains,  so  far  as  taxation  is  concerned,  now 
had  under  a  provision  which  says  that  taxation  shall  be  uniform? 

Mr.  Wysor:  Certainly,  I  argued  as  to  that.  I  do  not  want  to  give  them  any  more 
limit;  I  do  not  want  to  turn  them  loose  entirely.  I  have  argued  that  the  provision  in 
the  present  Constitution  is  intended  to  be  a  restriction  on  the  Legislature.    The  present 


2712 


DEBATES  OF  THE  COiS-STITUTIOi^AL  CONVENTION  OF  VIRGINIA. 


system  says  that  the  taxation  shall  be  equal  and  uniform;  but  it  is  not  equal  and  uni- 
form even  in  that  system.  You  cannot  have  it  absolutely  equal  and  uniform;  you  do 
not  have  protection,  which  is  the  equivalent  for  taxation  equal  and  uniform,  and  you 
cannot  have  it  so  under  the  necessities  of  the  case.  You  cannot  have  taxation  absolutely 
equal  and  imiform,  but  you  can  have  a  principle  in  your  Constitution  which  says  that 
that  is  the  purpose  of  the  Constitution,  that  that  is  the  purpose  of  the  law.  We  do  not 
want  a  provision  in  the  new  Constitution  which  intimates  to  the  Legislature  that  it  may 
he  made  unequal.  That  is  the  position  I  am  taking.  I  think  it  addresses  itself  to  the 
common  sense  of  the  body. 

Mr.  William  A.  Anderson:  Before  the  gentleman  from  Pulaski  .takes  his  seat  I 
w^ould  like  to  ask  whether,  in  his  opinion,  if  this  section  is  adopted  by  the  Convention 
as  a  part  of  the  Constitution,  if  such  discrimination  as  that  which  he  has  illustrated,  in 
his  argument,  will  be  constitutional? 

And  could  be  proposed  by  the  General  Assembly? 

Mr.  Wysor:  Certainly. 

Mr.  William  A.  Anderson:  A  discrimination  charging  one  telephone  company  50 
cents  and  another  75  cents,  and  so  on,  that  kind  of  discrimination;  would  not  that  very 
inequality  you  complain  of  be  absolutely  impossible  if  the  Constitution  is  adopted? 

Mr.  Wysor:  I  will  explain  to  you  what  I  mean.  The  amendment  or  provision  in 
the  report  of  the  committee  says  that  all  taxation  shall  be  uniform  on  the  same  class 
of  subjects.  Of  course,  then,  in  taxing  telephones  the  tax  should  be  uniform.  It  should 
be  equal  on  telephones,  and  I  do  not  think  that  under  the  provisions  of  the  report  you 
could  tax  telephones  of  one  company  greater  than  the  telephones  of  another  company. 
But  I  do  mean  to  say  that  as  between  the  telephone  system  and  the  apple  orchard,  the 
Legislature  by  tlie  provision  of  the  report  would  be  absolutely  unlimited.  It  could 
impose  any  rate  of  taxation  it  pleases  within  the  limit  of  confiscation  upon  the  tele- 
phone company,  and  just  as  low  a  rate  as  it  pleases  upon  the  apple  orchard.  It  would 
do  away  with  equality  altogether  so  far  as  classes  are  concerned.  The  Legislature  has 
unlimited  power  of  taxation  except  so  far  as  you  take  it  from  it,  and  this  report  has 
embodied  the  idea  of  equality  between  classes,  but  that  is  all.  They  can  tax  the  dif- 
ferent classes  of  property  just  as  they  please. 

They  can  come  almost  to  the  point  of  confiscating  property  of  one  class  and  almost 
relieve  the  property  of  another  class  for  taxation  altogether.  What  is  the  use  of  it? 
What  do  they  want  with  it?  They  want  to  give  the  municipalities  the  same  kind  of 
power.  They  want  to  put  the  city  of  Richmond,  for  instance,  in  a  position  to  say  to 
the  manufactures  that  come  to  Richmond.  "  We  want  you  here,  and  we  will  put  our  tax 
on  the  merchants  and  on  other  property-holders,  and  we  will  relieve  you  almost 
altogether."  The  report  does  say  that  all  property  shall  be  taxed.  Well,  now,  if 
Richmond  wants  to  build  up  her  manufacturing  enterprises,  they  say  Richmond  can 
impose  just  as  low  a  tax  as  she  pleases  on  manufacturing  enterprises,  and  on  the  mer- 
chants she  can  impose  just  as  high  a  tax  as  she  pleases  and  can  make  any  distinction 
she  pleases.  They  say  "  You  can  tax  the  farmer  as  low  as  you  please,  and  you  can  tax 
a  telephone  company  as  high  as  you  please." 

Mr.  Meredith:    I  will  ask  the  gentleman  if  he  does  not  know  that  the  municipality 
has  no  power  of  taxation  except  as  expressly  given  by  the  Legislature. 

Mr.  Wysor:    But  the  Legislature  has  the  power.    It  is  all  a  question  as  to  whether 
you  limit  the  Legislature  in  its  power  or  not. 

Mr.  Meredith:  Do  you  not  know  that  there  is  some  limit  now  on  municipalities  as 
to  hov/  the  classification  of  citizens  and  merchants  shall  be  made,  and  how  the  taxes 
shall  be  placed,  to  reach  lawyers  and  doctors,  and  all  classes  that  cannot  be  reached  by 
the  ad  valorem  tax. 

Mr.  Wysor:  Certainly.  Our  present  Constitution  provides  for  that,  because  you 
cannot  reach  those  people  by  the  ad  valorem  system,  and  you  have  to  do  it  by  a  license 
tax.  They  tax  merchants  according  to  their  business,  and  they  have  a  descending 
scale  and  not  an  ascending  scale,  as  in  the  case  of  telephones. 


DEBATES  OF  THE  CONSTITUTIOJs^AL  COIs^VENTION  OF  VIRGINIA.  2713 

A  merchant  can,  according  to  the  present  system  of  taxation,  do  $300,000  of  busi- 
ness and  does  not  pay  any  more  than  a  telephone  company  which  does  $14,000  worth  of 
business.  Make  a  calculation  and  see  if  that  is  right.  It  is  a  system  of  taxing  by 
license,  and  a  merchant  who  does  $300,000  worth  of  business  and  a  telephone  company 
which  does  $14,000  worth  of  business  pay  the  same  tax.  Is  that  proper.  Take  a  law- 
yer. Some  lawyers  may  make  as  much  as  $2-5,000  a  year;  perhaps  some  of  the  lawyers 
in  this  body  do.  I  do  not  know  about  that;  I  do  not  know  what  kind  of  practice  they 
have,  but  they  only  have  to  pay  a  tax  of  $25  to  do  it.    Say  that  they  pay  $25  to  do  $25,- 

000  worth  of  business,  when  a  telephone  company  would  have  to  pay  a  tax  of  $1,000  to 
do  less  business,  say  $14,000  worth  of  business.  So  I  say  that  such  license  tax  upon 
telephone  companies  is  unequal  and  unjust. 

Before  adopting  this  provision  of  the  report,  we  should  be  satisfied  that  its  tendency 
would  be  to  equalize  taxation;  but  I  say,  how  can  it  be  done  when  they  say  expressly 
in  the  section  to  the  Legislature:  "You  have  power  to  tax  one  class  of  subjects  higher 
than  another."  And  so,  when  you  get  a  Legislature  composed  in  great  part  of  farmers, 
they  sit  down,  and  they  begin  to  think,  and  they  say,  "These  railroads  have  been 
imposing  on  us;  these  telephone  companies  have  been  imposing  on  us;  we  do  not  know 
what  they  are  making,  it  is  a  mysterious  thing;  but  no  doubt  they  are  making  fortunes. 
Let  us  reach  them."  Then  you  might  have  a  Legislature  composed  of  telephone  or 
railroad  people,  and  they  would  undertake  to  reach  the  farmers.  I  say  it  is  better  to 
maintain  in  our  organic  law  a  principle  which  all  men  will  admit,  and  no  man  will  deny, 
and  that  is,  that  taxation  ought  to  be  equal.  Who  will  deny  that?  You  have  no  right 
to  make  me  pay  any  more  for  the  protection  afforded  by  the  government  than  you  do 
the  gentleman  from  Albemarle.  It  ought  to  be  equal,  according  to  the  value,  and  why, 
then,  should  we  put  a  contrary  provision  in  our  Constitution.  If  the  gentlemen  are 
seeking  to  do  away  with  a  provision  that  has  been  in  the  Constitution  for  half  a  cen- 
tury and  put  in  a  contrary  proposition,  it  is  for  them  to  show  that  in  the  execution  of 
that  provision  it  will  tend  to  bring  about  a  greater  equality  of  taxation — not  an 
inequality.  Equality  and  uniformity  is  what  you  desire,  and  what  you  ought  to  have. 
All  men  are  entitled  to  the  equal  protection  of  the  government,  and  they  ought  to  bear 
its  expenses  equally.  I  insist  that  we  should  retain  in  our  organic  law  that  great  prin- 
ciple. 

Let  us  not  follow  these  books  which  the  gentleman  from  Richmond  city  (Mr.  Mere- 
dith) has  brought  in,  these  scientific  works  discussing  the  subject  from  a  scientific  point 
of  view.  We  are  not  doctrinaries;  we  come  from  the  plain  people,  and  we  are  supposed 
to  have  plain  common  sense;  and  we  will  know  that  principle  is  just  that  the  taxation 
on  all  classes  of  subjects  should  be  equal. 

Mr.  Hamilton:  Mr.  Chairman,  I  hope  the  vote  will  not  be  taken  just  yet.  I  under- 
stand there  are  one  or  two  other  gentlem_en  who  wish  to  be  heard  on  this  subject.  I 
know  that  my  colleague  from  Petersburg  (Mr.  Cameron)  wishes  to  be  heard,  and  I 
thought  he  would  be  here  by  fhis  time. 

Mr.  Wysor:  I  do  not  wish  to  interrupt  my  friend;  but  I  want  to  say  to  the  body 
that  Governor  Cameron  told  me  to  occupy  the  attention  of  the  committee  until  11 
o'clock,  and  he  would  be  here  by  that  time.  I  want  to  show  that  I  am  as  good  as  my 
word.    It  is  11  o'clock.  (Laughter.) 

Mr,  Robertson:  Mr.  Chairman,  I  hope  it  will  not  be  thought  that  I  am  speaking 
against  time,  or  for  the  purpose  of  enabling  another  gentleman  to  get  here;  but  I  hope 
it  will  not  be  considered  very  inconsistent  in  me  to  rise  here  to  say  anything  about  this 
matter,  after  having  stated  that  I  considered  myself  incompetent  to  speak  on  this  sub- 
ject. I  said  that  in  a  moment  of  modesty.  But  since  so  many  other  gentlemen  have 
had  the  audacity  to  discuss  this  deep  subject  that  requires  so  much  study  and  learning, 

1  do  not  think  it  is  particularly  immodest  in  me  to  say  something  about  it. 

Without  disrespect  to  any  of  the  gentlemen,  I  doubt  very  much  whether  any  of  us 
know  much  about  the  theory  of  taxation,  but  all  of  us  who  have  to  pay  taxes  know  how 
hard  it  is  to  pay  them. 
171— Const.  Deb. 


2714 


DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OE  VIRGINIA. 


I  do  desire  to  make  a  few  remarks  simply  to  show  my  position  in  regard  to  this 
matter.  I  have  not  had  the  benefit  as  the  gentleman  from  Richmond  indicates  he  had 
had  reading  the  general  principles  laid  down  by  Mr.  Wells  and  others  in  reference  to 
taxation,  but  I  have  had  in  my  career  as  a  lawyer  some  opportunity  to  look  into  the  law  on 
this  question,  and  there  cannot  be  much  doubt  as  to  what  the  law  is.  It  does  seem  to 
me,  as  I  said  the  other  day,  that  this  committee  has  brought  in  a  report  which  under- 
takes to  adopt  a  new  principle  with  reference  to  taxation,  superseding  an  old  principle 
which  has  been  in  our  Constitution  since  the  year  1851.  Now,  I  care  not  what  was  the 
original  cause  for  putting  that  in  the  Constitution.  It  is  there,  and  as  it  bears  on  its 
face  the  idea  of  equally  and  uniformity,  an  idea  which  is  based  on  justice  and  fairness 
to  all  people.  Taxation  is  as  I  understand,  based  on  the  idea  of  protection.  The  more 
property  a  man  has  the  more  he  has  to  be  protected  by  the  government  under  which 
he  lives  and  the  more  he  ought  to  pay  in  proportion.  But  to  put  into  our  Constitution 
something  which  will  suggest  to  the  Legislature  that  there  shall  be  different  rates  of 
taxation  on  the  different  classes  of  property  in  this  Commonwealth,  that  a  different 
rate  of  taxation  can  be  charged  on  one  class  from  what  can  be  charged  on  anotner, 
would,  I  submit,  no  matter  what  these  text  books  and  these  gentlemen  who  theorize 
about  the  systems  of  taxation  we  ought  to  have  may  say,  incorporate  into  our  Consti- 
tution an  unjust  principle.  I  do  not  believe  any  man  on  this  floor  could  justify  the 
charging,  for  instance,  tangible  personal  property  whose  value  can  be  ascertained, 
thirty  cents  on  the  hundred  dollars  and  charging  real  estate  at  the  rate  of  forty  cents 
on  the  hundred  dollars.  I  cannot  believe  any  man  will  defend  any  such  proposition  as 
that.  Yet,  under  the  report  of  this  committee,  I  respectfully  submit,  that  difference 
could  be  made. 

Now,  I  am  av/are  of  the  fact  that  in  applying  the  present  provision  of  our  Consti- 
tution which  requires  that  the  tax  shall  be  equal  and  uniform,  our  Court  of  Appeals 
has  held  that  that  principle  shall  only  be  applied  so  far  as  it  can  be  applied;  that  where 
you  can  ascertain  value,  and  value  is  made  the  basis  of  taxation,  the  tax  rate  has  to  be 
equal  and  uniform;  but  these  license  taxes  the  Court  of  Appeals  has  held  are  not  based 
on  an  ad  valorem  system.  They  are  based  on  the  character  of  the  business  that  a  man 
is  doing,  and  there  you  can  only  have  an  approximate.  The  equality  which  the  Consti- 
tution requires,  that  you  cannot  go  into  the  details  and  say  that  because  you  charge  a 
physician,  for  instance,  a  higher  license  tax  than  you  do  a  lawyer,  that  that  is  an 
invasion  of  the  principle  of  equality  and  uniformity.  But  I  respectfully  submit  to  this 
committee  that  because  the  court  has  decided  that  there  are  a  number  of  subjects  which 
cannot  be  reached  by  the  ad  valorem  system,  as  to  which  the  Legislature  may  impose  a 
license  tax,  is  no  excuse  for  carrying  the  principle  further  than  the  present  Constitution 
does,  and  including  a  character  of  property  that  can  be  reached  by  the  aid  of  the  ad 
valorem  system.  The  gentleman  from  Richmond  the  other  day,  in  attempting  to 
explain  why  this  provision  was  put  into  this  article,  was  asked  a  number  of  questions. 
I  myself  asked  him  a  question,  and  with  all  due  respect  to  the  gentleman,  I  do  not  think 
he  could  have  understood  the  question  I  asked  him,  because  when  I  asked  him  why  it 
was  that  this  amendment  offered  by  the  gentleman  from  Petersburg  would  conflict  with 
the  views  of  this  committee  he  would  go  off  into  a  long  discussion  about  property  which 
escaped  taxation.  I  am  the  last  man  in  the  world  to  deny  that.  I  think  what  the  State 
of  Virginia  is  suffering  from  to-day  is  the  fact  that  there  is  a  large  amount  of  property 
in  this  State  that  has  been  escaping  taxation,  that  is  escaping  now  and  always  has  been 
escaping.  But  I  cannot  see  how  this  provision  is  going  to  make  any  difference  about 
that.  This  provision  simply  allows  the  Legislature  to  classify  property.  This  com- 
mittee, in  its  report,  has  drawn  the  line  between  property  that  can  be  valued  and  prop- 
erty that  cannot  be  valued.  In  the  third  section  it  provides  for  that.  Our  courts  had 
already  said  that  the  Legislature  could  do  that  under  the  old  Constitution.  I  think  they 
enumerated  certain  things  which  they  could  charge  a  license  tax  on,  and  our  courts  have 
decided  the  provision  about  equality  and  uniformity  did  not  apply  to  those  cases.  But, 


DEBATES  OF  THE  COXSTITrTIOXAL  COXVEXTIOX  OF  VIPiGlXIA. 


2715 


as  I  understand  the  first  section,  it  refers  to  property  that  can  be  valued,  and  I  cannot 
see  how  saying  that  you  can  classify  different  kinds  of  tangible  property  will  meet  the 
evil  that  the  gentleman  is  talking  about.  The  evil  that  he  is  trying  to  get  at  is  the 
escape  from  taxation  of  the  intangible  property,  which  he  reaches  by  the  third  section. 

Mr.  R.  Walton  Moore:  I  wish  to  explain  the  position  the  committee  has  taken  in 
reference  to  a  particular  subject.  The  committee  has  no  doubt  that  if  you  work  equality 
and  uniformity  into  that  first  section  the  rule  will  apply  to  the  taxation  of  all  property, 
including  franchises,  and  will  prevent  the  classification  of  franchises. 

Mr.  Robertson:  If  you  will  look  at  the  amendment  you  will  see  that  is  not  the 
case.  I  respectfully  submit  that  the  amendment  of  the  gentleman  from  Petersburg 
guards  against  that  in  express  language  by  saj^ing  "  except  as  hereafter  provided." 

Mr.  Robertson:  If  you  will  allow  me  to  proceed  I  think  I  can  show  you  that  you 
have  misconstrued  the  effect  of  the  amendment.  The  gentlemen  seems  to  forget  that 
a  large  part  of  the  property  of  this  State  is  tangible  property  that  can  be  reached  by 
the  ad  valorem  system.  There  is  a  great  mass  of  personal  property  in  this  State,  con- 
sisting of  everything  you  can  imagine,  furniture,  sheep,  horses,  and  everything  in  the 
nature  of  tangible  personal  property.  On  the  other  hand  there  is  real  estate  that  unpues- 
tionably  can  be  reached,  and  that  is,  in  my  opinion,  taxed  beyond  what  it  ought  to  be 
taxed.  If  you  put  in  what  you  have  proposed  here,  I  submit  that  the  Legislature  can 
classify  it  so  as  to  put  a  different  tax  rate  on  the  tangible  property,  that  can  be  reached 
by  the  ad  valorem  system.  The  effect  of  this  amendment  is  to  guard  against  that.  As 
I  understand  the  meaning  of  the  amendment,  it  does  not  intefere,  practically,  with  the 
right  to  impose  a  license  tax.  The  gentlemen  talk  s.bout  a  franchise  tax  as  if  it  was 
something  very  different  from  a  license  tax.  They  are  both  a  tax  of  the  same  nature, 
they  are  both  taxes  imposed  upon  a  person  for  the  privilege  of  being  engaged  in  a  cer- 
tain business.  When  we  are  speaking  of  a  person  we  use  the  word  "license"  and  when 
we  are  speaking  of  a  corporation  we  use  the  word  "  franchise;"  but  they  are  both  taxes 
of  a  similar  nature.  The  Court  of  Appeals  has  already  said  that  that  class  of  taxation 
is  not  Included  in  the  Constitutional  provision  with  reference  to  equality  and  uniform^tJ^ 
This  article  makes  that  perfectly  plain.  In  your  third  section  it  expressly  provides  that 
a  license  tax  may  be  imposed  in  every  case  where  you  cannot  reach  the  value  of  the 
property.  What  more  than  that  do  you  want,  in  order  to  reach  this  intangible  property. 
I  respectfully  submit  that  the  language  of  the  third  section  amply  protects  this  Com- 
monwealth with  respect  to  the  kind  of  property  that  cannot  be  reached  by  the  ad 
valorem  system.  But  if  you  leave  here  the  language  we  have  in  this  report,  the  Legis- 
lature will  have  the  power  to  make  all  kinds  of  classifications  of  diff'erent  kinds  of 
property,  and  if  the  courts  cannot  say  that  it  is  done  arbitarily  they  are  bound  to  let  it 
stand.  Then  you  will  have  one  man  paying  a  rate  of  twenty  cents,  and  another  thirty 
cents,  and  another  forty  cents  on  property  that  is  worth  exactly  the  same.  As  the 
gentleman  from  Pulaski  (Mr.  Wysor)  has  said  $1,000  invested  in  sheep  is  just  the  same 
as  $1,000  invested  in  real  estate. 

Mr.  Meredith:  I  want  to  ask  you  this  question:  Take  actual  tangible  property^ 
and  suppose  the  State  wanted  to  have  a  tonnage  tax  on  coal  or  iron  or  manganese,  that 
is  going  to  be  carried  out  of  the  State,  how  will  you  do  it? 

Mr.  Robertson:  I  say  that  under  your  third  section  you  can  get  at  every  one  of 
those  things,  by  charging  a  license  tax  for  engaging  in  that  business. 

^■Iv.  Meredith:  Then  you  would  have  a  license  tax  charged  on  managanese  and  on 
iron  and  coal. 

Mr.  Robertson:  I  say  that  if  a  man  is  engaged  in  selling  the  kind  of  property 
about  which  the  gentleman  talks  it  would  be  perfectly  in  the  power  of  the  Legislature 
to  say  that  the  people  engaged  in  that  kind  of  business  should  paj'  a  certain  license 
tax  for  the  privilege  of  so  doing,  based  upon  what  are  supposed  to  be  the  profits  made 
out  of  it. 

Mr.  Wysor:    Mr.  Meredith  has  called  your  attention  to  the  difficulty  of  assessing 


2716        -      DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 

coal.  I  want  to  call  your  attention  to  Section  5,  in  which  they  say  that  the  General 
Assembly  shall  provide  by  law  for  the  special  and  separate  assessemnt  of  all  coal  and 
other  mineral  land  and  at  its  fair  market  value,  but  that  until  such  special  assessment 
is  made  such  land  shall  be  assessed  under  existing  laws. 

Mr.  Meredith:  Do  you  propose  to  tie  the  hands  of  the  State  and  say  it  shall  not 
have  the  privilege  of  doing  any  other  thing,  if  it  is  wiser  to  do  it. 

Mr.  Robertson:  I  submit  that  these  gentlemen  are  asking  for  more  than  they 
claim  they  are  asking  for.  I  cannot  for  the  life  of  me  see  why  we  should  segregate 
that  particular  matter  and  put  it  on  a  different  footing  from  other  property.  His  ques- 
tion is  answered  by  the  fifth  section,  which  provides  for  the  assessment  of  coal  and 
mineral  lands  at  a  fair  market  value.  The  third  section,  I  respectfully  submit,  covers 
the  very  case  the  gentleman  was  talking  about  the  other  day.  That  is  what  I  meant 
when  I  said  I  did  not  think  he  had  answered  my  question  satisfactorily.  He  kept  talk- 
ing about  a  franchise  tax  and  would  not  say  a  word  about  a  license  tax  you  can  impose 
a  license  tax  on  a  corporation  just  as  well  as  on  anybody  else.  It  is,  in  other  words, 
simply  taxing  the  privilege  of  doing  business  and  the  Legislature  can  classify  the  dif- 
ferent kinds  of  business. 

This  provides  that  wherever  you  cannot  reach  it  by  the  ad  valorem  system  the  Legis- 
lature shall  have  the  right  to  impose  a  license  tax.  What  is  the  necessity  then  for  saying 
in  this  first  section  that  you  shall  classify  the  property  referred  to  in  that  section.  I  can- 
not see  to  save  my  life  how  you  can  get  around  the  position  taken  by  my  friend  from 
Pulaski,  that,  as  a  matter  of  general  principle,  it  is  the  duty  of  this  State  to  impose 
equal  burdens  upon  every  citizen  of  the  State.  I  submit  that  the  Legislature  ought  not 
to  have  the  power  to  classify  property  so  that  you  can  impose  one  rate  on  one  man  and 
another  rate  on  another,  simply  because  he  has  invested  his  money  in  a  certain  kind  of 
property.  A  number  of  the  gentlemen  upon  this  floor  have  very  hostile  feelings 
towards  the  corporations — I  am  not  making  a  personal  remark — and  some  of  them  have 
said  things  here  about  the  corporations  that  show  an  intense  bitterness  in  their  hearts 
against  corporations  simply  because  they  are  corporations.'^  Some  people  here  may  be 
actuated  with  the  motive  of  imposing  a  tax  on  them  that  will  not  be  imposed  on  the 
individuals.  But,  gentlemen,  when  you  attempt  that  sort  of  class  of  legislation,  when 
you  attempt  injustice  and  wrong  you  do  violence  to  everybody  and  injure  everybody, 
not  only  the  person  you  are  attacking,  but  everybody  in  the  State.  If  you  adopt  this 
principle,  if  you  put  into  this  first  clause  the  language  that  these  gentlemen  have  put 
there,  it  will  not  only  effect  the  corporate  interests  in  this  State  but,  I  submit  it  will 
affect  the  individual  interests  of  every  man  that  owns  property  in  the  State.  I  am  not 
going  to  say  anything  in  defense  of  corporations.  This  is  not  the  time  nor  the  place 
to  do  it;  but  I  tell  you  that  in  our  very  zeal  here  in  this  Convention  we  have  killed  the 
goose  that  lays  the  golden  egg  and  do  not  let  us,  for  God's  sake,  do  anything  that  will 
injure  materially  every  one  of  us.  It  does  seem  to  me  that,  after  we  have  adopted  this 
stringent  law  and  Created  an  imperium  in  imperio,  a  corporation  commission  that  has 
higher  powers  than  anything  that  has  ever  been  created  or  ever  been  known  to  exist, 
with  legislative,  judicial  and  every  other  kind  of  powe^,  for  the  purpose  of  trammelling 
and  controlling  these  corporations,  we  ought  not,  under  the  guise  of  getting  revenue  for 
the  State,  to  do  an  unjust  thing  here  which  will  effect  the  individual  interests  of  every 
man  in  this  Commonwealth. 

That  is  all  I  have  to  say  about  this  matter.  I  feel  deeply  about  it.  I  do  not  mean 
to  impugn  the  motives  of  the  gentlemen  of  this  committee;  but  I  do  believe  that  there 
is  an  element  in  this  Convention  that  is  driving  this  Commonwealth  towards  destruction 
by  the  feeling  they  have  about  this  matter.  I  hope  that  what  I  say  will  not  make  the 
gentleman  from  Richmond  see  skeletons  and  specters  or  cause  him  to  think  my  imagi- 
nation is  particularly  gloomy.  I  think  that  if  this  Convention  will  come  back  to  its 
senses  and  stop  looking  for  specters  and  skeletons  and  look  at  the  cold  facts,  they  will 
stop  treading  this  path,  which  is  a  path  of  danger,  and  will  go  back  to  common  sense 
principles  and  try  to  do  justice  to  all  men. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


27ir 


Mr.  R.  Walton  Moore:  Mr.  Chairman,  I  do  not  claim  a  better  knowledge  of  the 
subject  of  taxation  than  does  my  distinguished  friend  from  Roanoke  (Mr.  Robertson) 
and  I  shall  not  do  much  more  than  read  to  the  committee  some  of  the  authorities  upon 
the  very  important  subject  we  are  now  engaged  in  discussing. 

The  proposition  made  by  the  gentleman  from  Petersburg  (Mr.  Hamilton)  is  that 
we  shall  maintain  the  status  quo  so  far  as  the  organic  law  is  concerned — that  we  shall 
impose  upon  the  Legislature  the  rule  of  equality  and  uniformity  that  is  contained  in  the 
present  Constitution.  That  is  a  restrictive  rule  that  the  Committee  on  Taxation  and 
Finance  thinks  ought  to  be  removed,  in  order  that  the  people  through  their  represen- 
tatives in  the  future  may  have  more  latitude  than  has  been  allowed  since  1851.  Of 
course  if  nothing  practically  is  to  be  accomplished  by  the  change,  then  it  is  a  matter 
of  indifference  how  we  determine  the  pending  question.  But  the  committee  believes, 
and  urges  that  there  are  practical  results  that  can  be  accomplished  and  that  ought  to  be 
accomplished  by  relieving  the  General  Assembly  of  the  rigid  rule  of  uniformity  and 
equality  that  now  prevails.  Let  me  take  a  concrete  illustration.  Heretofore  the  rail- 
road companies  have  been  assessed  at  about  $15,000  per  mile,  and  have  been  taxed  at 
the  rate  of  forty  cents.  There  has  always  been  power  in  the  General  Assembly  to  tax 
franchises.  But  the  General  Assembly  has  had  trouble  in  getting  at  the  value  of  a  fran- 
chise, and  in  deciding  how  to  estimate  even  approximately  its  value.  Therefore  it  has 
failed  to  lay  franchise  taxes,  and  by  this  rule  of  equality  and  uniformity  it  v/as  tied 
down  to  a  rate  of  forty  cents  upon  $15,000  per  mile  of  assessment.  And  accordingly 
the  State  did  not  derive,  and  does  not  derive,  from  the  railroad  properties,  in  this  State 
the  revenue  to  which  it  is  fairly  entitled.  Now,  suppose  we  allow  the  Constitution  to 
remain  as  it  is.  Then,  after  the  expiration  of  the  ten-year  period  for  which  a  system 
is  provided,  the  same  difficult  condition  may  exist.  We  resort  to  a  percentage  tax  on 
gross  income  or  net  income  which  may  prove  ineffective  and  the  Legislature  may  be  cut 
off  from  the  only  method  of  securing  fro'm  railroad  companies  a  proper  amount  of  revenue, 
namely,  by  imposing  a  higher  rate  of  tax  upon  the  visible  property  of  those  companies 
than  is  imposed  upon  the  visible  property  of  natural  persons.  It  might  be  not  only 
desirable  and  fair  to  do  that,  but  necessary,  and  yet  it  would  be  impossible.  Another 
illustration  suggested  by  the  remarks  of  my  friend  from  Pulaski.  He  speaks  of  the 
telephone  companies.  Take  the  long-distance  telephone  company,  which  may  hereafter 
operate  extensively  in  the  State  of  Virginia.  Suppose  in  the  future  we  cannot  ascertain 
w^hat  their  gross  earnings  or  their  net  earnings  are,  and  cannot  impose  a  franchise  tax, 
based  upon  their  gross  or  net  earnings. 

Mr.  Robertson:  Does  not  this  provision  of  the  article  require  that  every  one  of  the 
companies  shall  make  reports  of  a  character  that  the  commission  shall  formulate? 

Mr.  R.  Walton  Moore:  Undoubtedly,  and  there  has  been  a  provision  in  the  statute 
under  which  other  companies  shall  send  in  a  statement  of  net  earnings;  and  yet  I  sup- 
pose there  is  not  a  gentleman  on  this  floor  who  does  not  know  how  inadequately  that 
has  worked. 

Now,  to  resume,  in  order  to  obtain  a  fair  revenue  from  long-distance  telephone 
companies,  we  may  wish  to  classify  the  telephone  companies,  so  as  to  put  the  long- 
distance companies,  the  great  and  powerful  companies,  into  one  class,  and  the  local 
companies  into  another  class  and  taxing  their  properties  at  different  rates.  Illustra- 
tions might  be  multiplied. 

Now  I  submit,  gentlemen  of  the  committee,  that  fundamentally  what  we  wish  to 
do  in  devising  a  system  of  taxation  is  to  equalize  the  burden,  and  all  of  the  authoritities 
here  are  to  the  effect  that  you  do  not  reach  that  result  necessarily  by  equalizing  the 
tax.  On  the  contrary,  the  leading  writers  upon  this  subject,  from  the  time  of  Adam 
Smith  down,  take  the  contrary  view  and  say  you  may  reach  real  equality  of  burdens  by 
inequality  of  taxation.  Take  a  corporation  enjoying  the  right  eminent  domain.  It 
ought  ordinarily  to  pay  more  than  the  corporations  of  a  mercantile  nature  that  do  73  ot 
enjoy  that  right. 


2718 


DEBATES  or  THE  COISTSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Hamilton:  Do  you  think,  as  a  lawyer,  that  it  is  necessary  to  preserve  this  first 
section  in  the  form  in  which  it  is  now,  in  order  to  carry  out  the  right  of  the  State  to 
tax  the  corporations  pretty  much  as  it  pleases  under  the  franchise  tax. 

Mr.  R.  Walton  Moore:  I  can  hardly  answer  that  in  the  negative.  Suppose  we  find 
twenty  years  hence  that  we  cannot  get  at  the  value  of  a  franchise  in  the  way  proposed 
here  as  to  the  railroad  companies  for  the  next  ten  years:  Suppose  we  cannot  adopt 
any  method  that  is  satisfactory,  and  suppose  we  wish  to  assess  the  visible  property  and 
to  put  upon  that  visible  property  a  higher  tax  rate  than  the  natural  persons  in  this 
Commonwealth  bear  upon  their  property.  If  you  write  equality  and  uniformity  into  the 
Constitution  you  are  precluded  from  doing  that. 

Mr.  Hatton:  Would  you  be  willing  to  write  equality  and  uniformity  of  taxation  into 
the  Constitution  and  make  it  apply  to  everything  but  corporations? 

Mr.  R.  Walton  Moore:  I  would  not.  I  think  that  would  be  unfair,  and  I  do  not 
propose  anything  of  that  sort.  But  I  say  very  frankly  that  the  question  of  corporate 
taxation  is  a  great  question  among  the  people  who  are  dealing  with  the  subject  of  taxa- 
tion. It  is  full  of  doubt  and  complication.  It  presents  problems  which  legislative 
bodies  should  be  left  free  to  deal  with. 

Mr.  Robertson:  If  the  third  section  does  not  provide  for  the  cases  you  mention, 
would  it  not  be  better  to  amend  that  section  so  as  to  cover  it,  rather  than  to  adopt  a 
general  principle  not  only  for  the  corporations,  but  for  the  individuals  and  everybody 
in  the  State? 

Mr.  R.  Walton  Moore:  I  will  say  to  my  friend  that,  so  far  as  I  am  concerned,  I 
am  Mailing  to  omit  any  declaration  of  general  principles,  but  leave  the  Legislature  free, 
as  is  done  in  New  York  and  Massachusetts,  and  in  other  States.  I  would  strike  out 
Sections  1  and  3. 

Mr.  Hamilton:  Would  you  strike  out  the  provision  for  taxing  corporations  for  ten 
years  ? 

Mr.  R.  Walton  Moore:  That,  as  I  understand,  was  put  in  here  as  a  sort  of  a  com- 
promise between  the  committee  and  the  railroad  companies. 

Mr.  Hatton:  Pardon  me  for  interrupting  you.  I  very  much  dislike  to  do  so;  but 
does  the  gentleman  think  that  is  in  line  with  his  statement  a  while  ago  that  he  was 
willing  to  leave  this  whole  thing  to  the  Legislature? 

Mr.  R.  Walton  Moore:  My  friend  misunderstood  me.  I  said  in  reference  to  the 
general  principle  I  am  willing  to  leave  the  matter  to  the  Legislature. 

Now,  gentlemen  of  the  committee,  there  has  not  been  an  authority  produced  upon 
the  other  side  in  favor  of  this  equality  and  uniformity  proposition.  Historically  Vir- 
ginia is  against  it.  It  was  not  dreamt  of  in  1876;  it  was  not  dreamt  of  in  1829-1830.  It 
was  only  adopted  in  1850-51  on  account  of  the  peculiar  situation  in  this  Commonwealth 
growing  out  of  the  existence  of  slavery. 

This  was  stated  in  the  Slaughters  case,  reported  in  13th  Gratton,  where  our  Court 
of  Appeals  said,  speaking  of  the  uniformity  and  equality  clauses  of  the  Constitution  of 
1851,  that  they— 

were  inserted  with  the  intention  of  preventing  onerous  taxes  upon  slaves.  As  that 
species  of  property  was  chiefly  held  in  the  eastern  portion  of  the  Commonwealth,  and 
as  the  power  of  laying  taxes  would  in  a  short  time  pass  out  of  the  hands  of  the  western 
portion  it  was  foreseen  that  the  western  portion,  if  the  tax  levying  should  not  be 
restricted  might  discriminate  in  the  levy  of  taxes  to  the  prejudice  of  the  owners  of 


The  provision  of  the  clauses,  taken  in  connection  with  the  history  of  the  times, 
leaves  no  doubt  that  they  were  inserted  as  adjustment  of  the  supposed  antagonism  of 
eastern  and  western  interests. 

And  in  the  case  of  Eyre  vs.  Jacob,  14th  Gratton,  the  court  said: 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION'  OF  VIRGINIA.  2719 

Had  the  interests  of  all  portions  of  the  State  been  uniform  and  homogeneous,  the 
principle  of  representation  would  have  afforded  adequate  protection  to  the  taxpayer 
against  injustice  and  oppression,  and  no  such  provision  would  have  been  introduced. 

I  place  this  view  of  our  court  against  the  suggestions  of  the  gentleman  on  the  other 
side,  to  show  that  the  people  who  have  made  constitutions  for  Virginia  when  unembar- 
rassed by  the  slavery  question  did  not  consider  that  it  was  important  or  desirable  to  lay 
down  any  principle  of  restriction  to  be  applied  to  the  legislative  department  of  the 
government. 

Mr.  Braxton:  I  will  call  the  gentleman's  attention  to  the  fact  that  the  provision 
in  the  Constitution  of  1850-51  applied  only  to  State  taxation,  and  that  the  present  pro- 
vision never  was  in  our  Constitution  until  the  adoption  of  the  Underwood  Constitution. 

Mr.  R.  Walton  Moore:  Yes,  sir.  When  I  go  to  the  Constitution  of  the  United 
States,  I  do  not  find  that  the  framers  of  that  instrument  thought  it  was  necessary  to 
bind  Congress  by  an  equality  and  uniformity  provision.  Has  anybody  said  that  the 
Constitution  of  the  United  States  is  defective  or  that  it  contemplates  and  paves  the  way 
for  injustice  because  there  is  an  omission  to  bind  the  Congress  by  an  equality  and 
uniformity  restriction.  What  does  the  Supreme  Court  of  the  United  States  say  about 
that  principle  in  the  case  of  the  Pacific  Express  Company  against  Sibert  (142  U.  S. 
Supreme  Courts  Reports,  351)  ? 

This  court  has  repeatedly  laid  down  the  doctrine  that  diversity  of  taxation,  both 
with  respect  to  the  amount  imposed  and  the  various  species  of  property  selected  either 
for  bearing  its  burdens  or  for  being  exempt  from  them,  is  not  inconsistent  with  a  per- 
fect uniformity  and  equality  of  taxation  in  the  proper  sense  of  those  terms;  and  that 
a  system  which  imposes  the  same  tax  upon  every  species  of  property,  irrespective  of  its 
nature,  condition  or  class,  will  be  desfructive  of  the  principle  of  uniformity  and  equality 
in  taxation  and  of  a  just  adaptation  of  property  to  its  burdens. 

So  we  have  the  Court  of  Appeals  of  Virginia  justifying  us  historically,  and  the 
Supreme  Court  of  the  United  States  combating  the  position  of  my  distinguished  friends 
and  saying  in  substance  that  equality  and  uniformity  of  assessment  and  taxation  is  not 
the  fundamental  or  essentiality.  So  much  for  the  courts.  How  about  the  text  writers? 
The  very  last  deliverance  upon  this  matter  is  in  the  report  of  the  Tax  Commission  of 
the  State  of  Minnesota,  published  this  year.  That  is  a  commission  which  has  been  in 
session  for  months  and  months^  and  after  a  most  thorough  examination  of  this  whole 
matter  it  reached  the  conclusion  reached  by  the  Supreme  Court  of  the  United  States,  and 
recommends  that  there  shall  be  a  Constitutional  amendment  in  the  State  of  Minnesota 
which  will  allow  the  classification  of  subjects  of  taxation.  There  are  other  recent  author- 
ities. If  my  friends  have  read  the  report  of  the  Industrial  Commission  they  will  find 
that  the  able  men  composing  that  commission,  including  the  senior  Senator  from  Virginia 
(although,  of  course,  I  cannot  say  that  he  endorsed  that  particular  point),  almost 
snapped  their  fingers  at  the  idea  that  Legislatures  should  be  bound  by  the  equality  and 
uniformity  principle.  They  refer  to  the  State  of  Ohio  and  to  other  States  where  it 
obtains,  and  say  that  those  States  have  been  struggling  against  the  limitations  of  that 
principle,  and  that  until  those  limitations  are  removed  the  tax  systems  of  those  com- 
munities cannot  be  placed  upon  a  reasonable  basis. 

Mr.  Hamilton:  I  find  this  is  not  a  decision  of  the  court,  but  it  is  a  lecture  by  Mr. 
Justice  Miller  on  the  Constitution  of  the  United  States,  and  you  will  find  it  referred  to 
in  Well's  book  which  my  friend  has  vouched  for,  and  which  I  have  been  familar  with 
for  some  time.  It  is  on  page  323.  I  would  like  to  read  what  Judge  Miller  says.  I 
suppose  he  knew  what  the  Supreme  Court  of  the  United  States  has  decided.  Wells 
says:  "The  Constitution  of  the  United  States  requires  that" — then  he  takes  up  the 
quotation  from  the  lecture  of  Mr.  Justice  Miller,  on  the  Constitution  of  the  United 
States — "  All  duties,  imposts  and  exercises  shall  be  uniform  throughout  the  United 
States;"  and  the  question  as  to  what  constitutes  uniformity  of  taxation  under  this  pro- 
vision has  repeatedly  come  before  the  courts,  Federal  and  State,  for  the  purpose  of 


2720  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

definition,  and  so  has  become  invested  with  a  degree  of  historical  interest.  The  natural 
inference,  at  first,  would  be  that  under  this  provision  of  the  Federal  Constitution  all 
property  subject  to  taxation  must  necessarily  be  taxed  at  the  same  rate  or  ratio — that 
is,  if  horses,  wagons  and  land  are  taxed,  then  the  same  per  cent,  of  value  must  be 
assessed  upon  the  horses  and  wagons  as  upon  the  land;  and  in  some  800  per  cent,  is 
assessed  upon  distilled  spirits — whiskey — (as  is  the  case  in  the  United  States  at  the 
present  time),  every  other  commodity  from  which  it  was  proposed  to  raise  revenue 
ought  to  be  taxed  in  the  same  proportion.  In  like  manner,  under  the  customs  all 
imports,  liquors,  and  pig  iron,  for  example,  would  have  to  be  subjected  to  one  rate  of 
duty. 

This  difficulty,  so  far  as  the  Federal  Government  is  concerned,  has  been  obviated 
by  an  assumption  which  the  courts  have  sustained,  that  a  tax  "  is  uniform  within  the 
meaning  of  the  constitutional  requirement  if  it  is  made  to  bear  the  same  percentage 
over  all  the  United  States;"  that  is,  it  must  be  uniform  as  regards  any  particular 
article  in  all  places;  and  whiskey  or  any  other  commodity,  for  example,  shall  not  be 
subjected  to  Federal  taxation"  at  one  rate  in  one  State,  and  at  a  different  rate  in  another 
State,  but  that  different  articles  may  be  subjected  to  different  rates  provide  they  are 
uniform  as  between  different  places  and  different  States,  as  it  obviously  could  not  have 
been  the  intent  of  the  framers  of  the  Constitution  that  the  government  in  raising  its 
revenues  should  not  be  allowed  to  discriminate  in  respect  to  articles  which  it  desired  to 
tax. 

Mr.  R.  Walton  Moore:  That  is  exactly  in  the  line  of  our  contention,  that  there 
should  be  uniformity  within  the  territory  of  the  taxing  power  and  upon  the  same  class 
of  subjects.  That  is  what  I  understand  that  writer  to  say.  The  only  uniformity  that 
is  required  is  the  uniformity  in  the  territory  of  the  taxing  power,  and  if  that  uniformity 
be  observed  there  can  be  classification  of  subjects  of  taxation  and  different  rates  im- 
posed upon  different  classes.  If  my  friend  has  any  doubt  about  the  approval  of  the 
classification  principle  by  the  Supreme  Court  of  the  United  States,  I  refer  him  to  the 
case  of  the  Railway  Company  against  Ellis  in  165  United  States,  and  to  the  case  of  Bell's 
Gap  Railv/ay  against  Pennsylvania,  134  United  States.  The  Supreme  Court  in  those 
cases  upholds  the  classification  principle  and  its  application,  provided  that  there  are 
reasonable  grounds  of  classification  observed. 

Mr.  Braxton:  You  may  add  to  that  the  case  of  the  Home  Insurance  Company 
against  New  York,  where  that  question  is  still  more  fully  discussed. 

Mr.  R.  Walton  Moore:  I  invite  the  gentlemen  upon  the  other  side  to  show  any 
case  in  which  the  court  has  said  that  the  classification  principle  is  not  just,  or  to  show  any 
writer  upon  the  subject  of  taxation  who  will  say  that  the  classification  principle  which 
we  propose  here  is  an  unfair  principle. 

Mr.  Hatton:  Can  the  gentleman  show  any  case,  decided  by  the  Supreme  Court  of 
Pennsylvania,  from  which  this  section  is  taken,  where  that  court  has  declared  any 
classification  improper? 

Mr.  Meredith:  Yes,  I  can.  I  will  give  you  a  case  in  the  112th  Pennsylvania  Re- 
ports, Pennsylvania  State,  page  355,  where  they  undertook  to  classify  notes  and  bills 
for  labor  done,  and  the  court  said  that  was  an  improper  classification  and  the  Constitu- 
tion did  not  justify  it. 

Mr.  Hatton:  Has  it  not  also  been  held  that  bonds  and  notes  could  be  classified  in 
one  class  when  held  by  a  corporation  and  in  another  class  when  held  by  individuals? 

Mr.  Meredith:  Yes;  and  they  gave  the  reason  for  it,  and  showed  the  justice  of  it, 
which  my  friend  is  not  prepared  to  dispute. 

Mr.  Hamilton:  I  will  now  endeavor  to  give  the  gentleman  from  Fairfax  (Mr. 
Moore)  a  reference  to  a  text  writer  in  answer  to  his  challenge.  I  read  from  Wells  on 
page  323 :  "  Uniformity  or  proportionality  in  taxation  is,  therefore,  one  of  the  funda- 
mental principles  of  every  free  and  just  government;  and  the  safety  of  all  taxpayers 
against  the  grossest  abuses  demands  that  in  taxing  any  class  or  locality  the  principle  of 
equality  of  rates  should  be  kept  sacred  and  inviolate." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGINIA. 


2:21 


Mr.  R.  Walton  Moore:  It  says  in  taxing  any  class  there  should  he  an  equality  of 
rate.    That  is  what  we  are  contending  for. 

Mr  Hamilton:  Will  the  gentleman  contend  that  classification  is  not  practically 
ai'bitrary  under  the  decisions  of  the  Pennsylvania  courts  and  that  it  is  a  purely  legisla- 
tive power. 

]\lr.  R.  Walton  Moore:  The  Supreme  Court  of  the  United  States  has  said  that  that 
question  is  controlled  by  the  Fourteenth  Amendment,  and  that  you  cannot  make  an  arbi- 
trary classification;  that  it  is  out  of  the  power  of  the  State  to  make  one. 

Mr.  Hatton:  Has  not  the  Supreme  Court  of  the  United  States  practically  said  thai 
every  presumption  ought  to  be  taken  in  favor  of  the  Constitutionality  of  the  classifica- 
tion? 

Mr.  R.  Walton  Moore:  Of  course  there  is  always  a  presumption  in  favor  of  the 
Constitutionality  of  the  lav\'.  Every  authority  v\^e  have  found  and  every  authority  pro- 
duced or  suggested  by  the  gentlemen  upon  the  other  side  upholds  our  contention  and 
shows  the  advisability  of  allowing  the  classification  principle.  We  wish  to  give  some 
flexibility  to  the  organic  law,  so  as  to  give  more  latitude  to  the  legislating  power.  That 
is  the  difference  between  us  and  the  gentlemen  who  seem  to  be  opposing  the  report  of 
the  committee. 

Now,  Mr.  Chairman,  I  am  only  going  to  read  one  other  authority  and  then  I  will 
not  detain  the  committee  any  further.  I  suppose  there  is  not  a  greater  writer  upon  the 
subject  of  taxation  in  this  country  than  Judge  Cooley.  We  have  Judge  Cooley  speaking 
about  this  very  matter,  and  he  says,  on  page  169  of  his  work  on  taxation:  "It  has 
already  been  stated  that  inequality  does  not  necessarily  follow  the  restricting  of  a  tax 
to  a  few  subjects  only,  or  even  to  a  single  subject.  Such  a  restricted  tax  might,  on  the 
other  hand,  under  some  circumstances,  be  as  equal  and  just  as  any  that  could  be  laid. 
A  tax  laid  exclusively  on  merchant  goods  might  not  be  burdensome  to  those  W'ho  in  the 
first  instance  paid  it,  since  the  effect  would  only  be  to  increase  the  price  to  the  con- 
sumer and  thus  to  diffuse  the  burden  to  the  whole  community.  A  license  tax  might  not 
be  unjust  though  laid  upon  a  single  occupation,  provided  that  it  was  so  laid  that  none 
who  followed  that  occupation  escaped  it.  i^et  it  reach  all  of  a  class,  either  of  persons 
or  things,  it  matters  not  whether  those  included  in  it  be  one  or  many,  or  whether  they 
reside  in  any  particular  locality  or  scattered  all  over  the  State." 

Here  is  a  great  lawyer  and  a  great  thinker,  in  favor  of  the  report  of  this  com- 
mittee declaring  for  the  classification  of  subjects.  I  do  not  see  why  we  ought  not  to  do 
this.  We  have  here  a  representative  government.  The  legislative  right  is  within  the 
check  and  control  of  the  people.  We  are  only  designing  to  go  back  to  what  was  done  in 
the  early  days  of  this  State  and  to  say  that  the  legislative  department  of  the  government 
shall  have  the  right  to  impose  taxes  within  the  bounds  of  moderation  and  justice  that  is 
enjoyed  by  the  English  Parliament,  that  is  enjoyed  by  the  Congress  of  the  United 
States,  that  is  now  enjoyed  by  nearly  all  the  Commonwealths  of  this  country.  It  has 
been  pointed  out  here  by  my  distinguished  friend  from  Richmond  (Mr.  Meredith)  that 
at  least  two-thirds  or  probably  three-fourths  of  the  States  of  this  Union  have  dropped 
out  this  uniformity  and  equality  provision,  wherever  they  had  it.  They  have  either 
omitted  any  regulation  on  the  subject  of  taxation  or  else  they  have  adopted  this  princi- 
ple of  classification. 

Mr.  Chairman  and  gentlemen  of  the  committee,  I  apologize  for  taking  up  so  much 
of  your  time.  I  only  wanted  to  read  some  of  these  authorities  in  response  to  the  chal- 
lenge of  those  who  are  opposing  this  amendment^  and  who  said  that  this  committee 
ought  to  explain  and  support  the  position  they  occupy. 

Mr.  Hamilton:  Mr.  Chairman  and  gentlemen  of  the  committee,  I  do  not  propose 
to  make  any  extended  argument  or  to  take  up  much  more  of  your  time.  I  merely  desire, 
Id  a  few  moments,  to  recall  to  your  minds  the  fundamental  points  and  the  main  points 
made  by  me  in  suggesting  this  amendment.  I  mean  to  say,  and  I  believe  that  all  the 
history  and  all  the  authorities  bearing  upon  our  race  uphold  and  will  maintain  the 


2722  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

doctrine  that  discrimination  in  the  burdens  of  taxation  ought  not  to  exist  under  any- 
free  government.  The  theory  of  the  gentlemen  who  have  advocated  their  views  is  that 
you  may  have  no  discrimination  under  this  power  of  classification.  That  is  perfectly- 
true.  You  may  not  have  it,  but,  gentlemen,  the  object  of  any  one  in  the  consideration 
of  the  subject  of  taxation,  is  to  prevent  the  principle  of  discrimination,  partiality,  favor- 
itism and  injustice.  If  we  are  going  to  trust  this  matter  entirely  to  the  Legislature  I 
say  we  ought  to  have  nothing  in  here  on  the  subject  of  a  general  principle.  I  said  that 
in  my  opening  argument  andl  repeat  it  now,  notwithstanding  the  fact  that  the  gentle- 
man from  Richmond  said  he  did  not  think  we  could  possibly  mean  that,  I  do  mean  it. 
I  much  prefer  to  have  here  no  general  principle  as  to  the  method  of  taxation,  as  to  the 
principle  of  taxation,  than  to  have  a  method  which  is  suggestive  of  and  apparently  tells 
the  Legislature  that  this  Convention  approves  a  principle  which  is,  almost  from  the 
necessity  of  the  case,  unequal  and  therefore  unjust  and  bad  taxation. 

Now,  Mr.  Chairman,  I  mean  to  say  that  the  book  referred  to  by  my  friend  from 
Richmond  (Mr.  Meredith)  the  other  day,  which  is  vouched  for  by  him  is  the  book  upon 
which  I  have  largely  based  my  views  on  this  subject.  I  read  this  book  when  it  came 
out  in  the  North  American  Review  some  years  ago,  and  after  this  Convention  was  called 
and  I  found  that  I  was  to  come  here,  I  sent  for  and  got  a  copy  of  the  published  book. 
It  is  impossible  for  me  to  take  up  your  time  to  read  from  this  work.  This  is  a  worry- 
ing subject.  It  is  a  dull,  dry  subject  and  yet  it  is  one  of  great  importance.  I  mean  to 
say  that  there  is  no  utterance  of  the  Supreme  Court  of  the  United  States,  and  there  is 
no  utterance  of  the  Supreme  Court  of  any  State  which  is  not  upon  some  special  authority 
for  partial  taxation  or  class  taxation,  and  that  there  is  no  utterance  by  any  first-class 
writer  on  the  subject  of  taxation  which  justifies  unequal  taxation  based  upon  classifica- 
tion. Proportional  taxation  is  absolutely  approved  of  by  all  the  writers  and  all  the 
courts,  unless  those  courts  are  governed  by  some  such  provision  as  has  been  adopted  in 
Pennsylvania.  When  the  gentleman  from  Richmond  gave  his  answer  to  the  gentleman 
from  Portsmouth  (Mr.  Hatton)  he  gave  him  a  Pennsylvania  decision,  which  was  neces- 
sarily that  way,  because  it  was  governed  by  the  Pennsylvania  Constitution. 

Mr.  Meredith:  I  understood  you  to  say  that  we  could  not  produce  any  authority 
which  would  justify  inequality  of  taxation  under  the  principle  of  classification.  Of 
course  we  could  not,  but  can  you  cite  any  authority  or  any  text-writer  or  the  decision 
of  any  court  which  holds  that  the  classification  of  subjects  is  not  a  proper  and  fair  way 
to  get  equality  of  taxation? 

Mr.  Hamilton:  I  might  cite  the  last  two  Constitutions  of  Virginia  on  the  point, 
and  it  seems  to  me  to  be  pretty  good  authority. 

Mr.  Meredith:  I  think  the  Court  of  Appeals  of  Virginia  apologized  for  one  of  them 
and  I  think  you  would  have  to  apologize,  yourself  for  this  Underwood  Constitution. 

Mr.  Hamilton:  I  do  not  think  I  would.  I  do  not  think  I  would  have  anything  but 
praise  for  the  Underwood  Constitution.  We  must  do  justice  and  not  cast  aside  the 
Underwood  Constitution  and  say  it  was  made  by  people  who  did  not  represent  the  people 
of  Virginia.  The  Underwood  Constituion,  except  as  to  the  framework  of  local  govern- 
ment, was  practically  a  reproduction  of  the  Constitution  of  Virginia  of  1850  and  1851. 
"With  respect  to  the  framework  of  local  government  it  was  practically  copied  from  the 
Constitution  of  New  York. 

There  is  very  little  difference.  I  mean  to  say,  and  I  call  it  to  the  attention  of  this 
body,  that  there  has  been  practically  no  answer  made  to  the  decision  of  the  'Supreme 
Court  of  Pennsylvania,  which  I  read  the  other  day,  under  a  Constitution  like  the  one 
proposed  here,  on  the  point  that  the  power  of  classification  is  purely  a  legislative  power 
and  that  the  only  funtcion  of  the  court  is  to  see  that  it  is  uniform  within  the  class. 

Mr.  Meredith:  Do  I  understand  you  to  say  that  the  Supreme  Court  of  Pennsyl- 
vania has  said  that  the  court  cannot  decide  whether  there  is  proper  classification. 

Mr.  Hamilton:  I  think  not,  but  perhaps  I  had  better  read  the  decision.  I  read 
from  the  case  of  the  Commonwealth  against  the  Delaware  Division  Canal  Company,  de- 


DEBATES  OF  THE  COXSTITFTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2723 

cided  in  1899  and  reported  in  123d  Pennsylvania  State,  page  594.    I  read  from  the 
syllabus: 

The  power  to  impose  taxes  for  the  support  of  the  government  with  the  power  of 
classification,  still  belonging  to  the  Legislature  under  the  new  Constitution,  the  selec- 
tion of  the  subject  thereof,  their  classification  and  the  methods  of  selection  to  be  pro- 
vided, are  matters  purely  legislative. 

The  classification  of  subjects,  under  this  decision  of  the  Supreme  Court  of  Penn- 
sylvania, is  held  to  be  a  purely  legislative  power. 

Mr.  Meredith:  Is  it  not  a  fact  that  the  gentleman  has  seen  other  authorities, 
Avhich  I  have  furnished  him,  from  the  State  of  Pennsylvania  which  recognize  the  power 
of  the  State  to  say  that  a  classification  has  been  arbitrary? 

Mr.  Hamilton:  I  will  read  the  next  clause,  which  says  that  it  is  not.  This  is  one 
of  the  cases  you  referred  me  to.  I  am  not  reading  anything  new  to  you.  "  The  power 
to  classify  being  given  all  that  is  then  required  by  the  Constitution  is  that  the  taxes 
shall  be  uniform  upon  the  members  of  a  class,  and  it  is  the  uniformity  of  taxation 
according  to  the  classification  made,  which  is  a  question  to  be  determined  by  the  court." 
If  that  does  not  mean  that  the  power  of  classification  and  the  right  to  classify  is  abso- 
lutely a  legislative  question  I  do  not  know  what  it  does  mean. 

Mr.  K.  Walton  Moore:  Does  my  friend  think  that  if  the  Supreme  Court  of  Pennsyl- 
vania were  to  say  that  the  Legislature  had  conclusive  and  arbitrary  authority  that  it 
could  stand,  in  view  of  the  provision  in  the  Federal  Constitution?  And,  in  that  con- 
nection, may  I  not  ask  him  if  the  Supreme  Court  of  the  United  States,  in  reviewing  the 
Pennsylvania  cases,  does  not  expressly  declare  that  the  State  of  Pennsylvania,  through 
its  Legislature,  can  only  exercise  a  reasonable  and  not  an  arbitrary  power  of  classifica- 
tion. 

Mr.  Hamilton:  I  mean  to  say  that  this  case  has  not  been  overruled  and  that  the 
principle  enunciated  here  is  the  law  of  Virginia  to-day.  Our  own  court  has  decided 
cases  on  the  same  principle.  No  farther  back  than  yesterday  afternoon  I  was  talking 
on  the  subject  with  one  of  the  judges  of  our  Supreme  Court  and  he  said  that  this  was 
the  principle  of  our  own  court,  that  classification  is  a  legislative  function.  There  is  a 
limitation  to  it,  but,  gentlemen,  the  limitation  means  nothing.  It  must  be  such  a  dis- 
tinction, such  an  arbitrary  thing  as  would  bring  it  within  the  principle  of  the  decisions 
of  the  United  States  Supreme  Court  to  enable  the  court  to  deal  with  it.  If  there  is  any 
sort  of  foundation  for  the  classification,  if  a  man  that  was  not  an  idiot  could  make  a 
plausible  argument  for  the  classification,  then  such  a  classification  and  distinction 
would  be  upheld  by  the  Court;  and  to  such  an  extent  does  that  go  that  the  Pennsylvania 
Supreme  Court  says  that  the  power  of  classification  is  purely  legislative — "  the  power 
to  classify  being  given,  all  that  is  then  required  by  the  Constitution  is  that  the  taxes 
shall  be  uniform  upon  the  members  of  a  class,  and  it  is  the  uniformtiy  of  taxation 
according  to  the  classification  made,  which  is  the  subject  to  be  determined  by  the  court." 

I  read  you  the  other  day  from  one  of  the  Supreme  Courts  of  Pennsylvania  reports- 
to  the  effect  that  the  power  of  classification  and  the  right  to  arbitrary  classification  was 
so  great  and  was  upheld  to  such  a  degree  that  you  could  sub-divide  manufacturing 
establishments.  One  of  the  cases  was  to  the  effect  that  the  Legislature  had  the  povrer 
to  sub-divide  manufacturing  establishments,  with  tangible  property,  so  that  you  might 
put  one  rate  of  taxation  upon  a  manufacturing  concern  making  liquor  and  another 
upon  a  manufacturing  concern  making  gas.    This  was  a  tax  upon  property  in  some  way. 

Mr.  Meredith:  You  referred  to  it  the  other  day  as  real  estate;  but  the  property 
was  stock. 

Mr.  Hamilton:  I  think  I  referred  to  it  as  property,  and  I  think  now  it  is  property. 
I  mean  to  say  this,  without  meaning  to  be  in  the  slightest  degree  unpleasant,  that  the 
impression  left  upon  me  by  my  friend  who  last  addressed  the  committee  was  that  the 
fight  or  this  objection  was  something  in  favor  of  the  corporations.    I  am  not  able  to 


2724 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


see  its  bearing  in  that  way.  I  say  I  do  not  think  it  has  any  bearing  upon  corporate 
matters.  I  will  not  stand  up  here  and  state  anything  to  this  Convention  as  a  fact  or 
as  my  opinion,  as  a  matter  of  law,  unless  I  think  it.  Why  there  should  be  any  argument 
here  based  upon  the  general  idea  that  something  was  to  be  saved  to  the  corporations, 
I  am  unable  to  say.  It  seems  to  me  that  nothing  is  left  here  for  the  corporations  to 
contend  for. 

Mr.  R.  Walton  Moore:  I  do  not  think  my  friend  understood  me.  I  did  not  assert 
that  he  was  a  champion  of  the  corporations,  in  supporting  this  amendment,  I  did  not 
mean  to  assert  that. 

Mr.  Hamilton:  I  did  not  understand  you  to  refer  to  me,  personally,  at  all.  I 
thought  you  v/ere  making  your  argument  on  the  line  that  to  make  this  change,  which 
I  strongly  urged  you  to  make,  was  a  benefit  to  the  corporations. 

Mr.  R.  Walton  Moore:  I  say  here,  once  and  for  all,  that  I  have  no  respect  at  all 
for  any  suspicion  which  attaches  or  directs  itself  to  any  gentleman  here,  based  upon  any 
such  supposition  as  that. 

Mr.  Hamilton:  I  was  not  referring  to  myself.  I  think  so  well  of  myself  that  it 
never  occurs  to  me  that  other  people  do  not  think  well  of  me.  I  am  never  conscious 
of  doing  things  with  a  wrong  purpose.    I  do  wrong  things,  but  not  with  a  wrong  motive. 

I  mean  to  say,  gentlemen,  that  I  do  not  think  it  is  a  fair  way  to  consider  this  ques- 
tion, to  consider  it  on  the  idea  that  the  change  proposed  here  is  intended  or  will  have 
the  effect  of  benefiting  the  corporations.  I  say  that  they  are  beyond  the  region  of  hope 
under  this  Constitution. 

I  say  to  you,  let  us  preserve  to  ourselves  the  really  true  principle  of  equally  and 
proportionately  bearing  the  burdens  of  our  government.  If  there  is  anything  in  the 
amendment  which  I  propose  which,  in  any  way,  modifies  the  condition  of  corporations 
under  this  Constitution.  I  am  not  aware  of  it.  I  do  not  believe  it  exists.  If  it  does, 
and  if  any  one  can  point  out  to  me  that  there  is  any  such  thing  in  it,  I  v/ill  be  glad  to 
specify  that  the  franchise  and  license  taxes  shall  not  com-e  under  the  principle  of  equal 
and  uniform  taxation.  That  is  the  only  way  on  earth  you  can  tax  the  corporations, 
except  by  taxing  their  property  itself.  I  cannot  believe  that  it  is  the  purpose  or  the 
wish  of  any  man  in  this  Convention  to  say  that  you  shall  put,  arbitrarily,  a  different 
rate  upon  different  classes  of  property,  actual  visible  property,  real  or  personal^  because 
a  difference  in  rate  must  necessarily  mean  injustice  and  partiality,  when  you  cannot 
get  at  the  value  of  the  property.  I  cannot  believe  that  any  man  in  this  Convention 
means  that,  and  if  he  does  not  mean  that  as  to  tangible  visible  property,  and  you  except 
from  this  rule  of  equality  the  license  tax  and  the  franchise  tax,  which  we  have  done, 
there  can  be  no  interest  to  the  corporations  in  this  matter  unless  you  mean  to  tax 
their  visible  property  at  a  higher  rate  than  you  tax  the  property  of  individuals.  I  do 
not  believe  that  is  the  meaning  of  anybody.  I  believe  this  is  an  unnecessary  and  dan- 
gerous provision,  and  that  it  may  ruin  us  in  the  future,  when  changes  take  place  of 
which  we  do  not  know.  I  believe  it  has  crept  in  here  under  the  idea  that  it  was  neces- 
sary to  carry  out  the  suggestion  of  taxing  corporations.  It  is  not  necessary  for  that. 
The  occasion  for  it  is  gone,  if  it  was  ever  justified.  I  beg  that  you  will  not  keep  in  the 
Constitution  a  bad,  false  and  vicious  principle  when  there  is  no  occasion  for  it. 

I  wish  to  say  to  the  members  of  this  committee  a  few  words  in  that  connection. 
Conditions  change  very  much  in  the  State.  None  of  us  are  able,  none  of  us  are  suffi- 
ciently prophetic  to  see  one  year  into  the  future,  much  less  five,  ten  or  twenty  years. 
This  principle — I  suppose  I  will  have  to  call  it  a  principle,  although  I  do  not  think  it  is — 
has  been  copied  from  the  Constitution  of  Pennsylvania. 

We  have  been  referred  to  Pennsylvania  as  an  instance  of  how  well  it  works.  Gen- 
tlemen, the  comparison  ought  not  tohave  been  made.  Pennsylvania,  I  presume,  next 
to  New  York,  is  the  largest,  richest  and  wealthiest  State  in  this  country.  The  conditions 
which  fit  there  do  not  fit  here.  We  are  a  comparatively  poor  State,  with  a  sparse 
population,  and  almost  wholly  undeveloped.    We  are  just  beginning  the  development 


DEBATES  OF  THE  C0X5TITUTI0XAL  COXVEXTIOX  OF  VIRGINIA. 


2725 


of  our  State;  and  yet  we  are  compared  to  a  State  where  there  is  a  factory  open  upon 
almost  every  hill  top  and  along  every  stream  at  every  few  hundred  yards. 

I  do  not  know  that  it  is  a  fact  myself,  and  I  cannot,  therefore,  state  it  positively 
as  a  fact,  but  the  conditions  with  respect  to  the  control  of  the  legislative  body  change. 
You  must  all  recollect  that  there  is  danger  for  you  and  for  your  constitutents  if  this 
plan  is  put  here  to  enable  people  to  tax  unequally  and  disproportionately  the  citizens 
of  this  Commonwealth  and  their  property.  A  time  may  come,  gentlemen,  when  those 
citizens,  those  individuals,  the  great  humble  body  of  the  people,  will  not  so  fully  control 
their  Legislature  as  they  do  now.  Do  not  misunderstand  me.  I  am  not  stating  what 
I  wish,  but  what  I  do  not  wish.  I  hope  to  God  the  time  will  never  come  when  anybody 
will  control  the  Legislature  of  Virginia  except  the  majority-  of  the  vote  of  her  people, 
made  of  flesh  and  blood.  But,  gentlemen,  we  take  this  provision  from  the  Constitution 
of  Pennsylvania.  According  to  the  best  reports  and  best  information  that  can  be  gotten, 
there  are  no  more  corrupt  legislative  bodies,  State  and  local,  in  this  country,  than  those 
of  the  State  of  Pennsylvania. 

:\Ir.  R.  Walton  3Ioore:  In  order  that  you  may  not  confine  it  to  the  State  of  Penn- 
sj'lvania,  I  beg  to  remind  you  that  for  almost  as  long  a  period  the  State  of  Georgia  has 
had  this  provision  in  her  Constitution.  The  State  of  Louisiana,  which  has  just  revised 
its  Constitution,  has  adopted  it  and  a  great  many  of  the  Vv'estern  States,  where  condi- 
tions are  very  much  like  those  which  prevail  in  this  Commonwealth,  have  adopted  it. 

Mr.  Hamilton:  I  think  now  my  friend  is  mistaken  in  saying  that  the  State  of 
Georgia  has  this  provision.  I  do  not  think  it  has  just  this  provision  exactly.  It  is  a 
little  singular,  if  the  State  of  Georgia  has  it,  one  of  our  own  States,  inhabited  by  people 
comparatively"  like  ours,  with  a  country  comparatively^  like  ours — if  she  has  it,  it  is 
singular  that  we  never  heard  it  referred  to  as  being  copied  from  the  State  of  Georgia 
and  have  never  heard  anything  said  ^is  to  what  occurred  in  Georgia,  or  how  it  worked 
in  Georgia.    It  has  always  been  Pennsylvania — Pennsylvania. 

:\Ir.  R.  Walton  Moore:  I  want  to  say  to  my  friend,  in  reply  to  the  suggestion  that 
these  States  have  never  been  referred  to,  that  I  have  examined  the  authorities  in  those 
States  and  other  sources  of  information,  as  far  as  I  had  access  to  them,  to  ascertain 
whether  or  not  evil  had  resulted  from  the  application  of  this  classification  principle, 
and  I  assure  him  I  have  not  been  able  to  find  any  evil  has  resulted. 

]Mr.  Hamilton:  I  would  have  much  preferred  tohav  e  had  a  reference  to  the  Con- 
stitution of  these  other  States  in  time  to  examine  them.  I  have  never  heard  this 
referred  to  except  as  being  based  upon  the  Constitution  of  Pennsj^lvania.  !My  impres- 
sion is  that  I  examinded  the  Constitution  of  Georgia,  and  I  do  not  think  it  contains  this 
same  provision.  If  the  gentleman  has  a  copy  of  the  Constitution  of  Georgia  on  this 
point.  I  would  be  glad  for  him  to  read  it. 

Mr.  R.  Walton  Moore:  I  can  only  say  that  the  chairman  of  the  committee  united 
with  me  in  making  examinations  of  the  Constitutions  of  the  States,  and  we  found  that 
the  classification  principle  in  almost  the  same  terms  as  the  Pennsylvania  provision, 
had  been  adopted  in  Colorado,  Georgia,  Idaho.  ^Montana,  Louisana,  Missori  and  Penn- 
sylvania. 

i\Ir.  Hamilton:  You  found  the  classification  principle  in  about  the  same  terms? 
I  go  back  now  to  what  I  was  saying.  Pennsylvania  was  certainly  the  leader  in  this 
classification  system.  Pennsylvania  is  the  State  that  is  all  the  time  referred  to  as  the 
one  from  which  the  identical  language  in  this  report  is  taken.  I  mean  to  say  that  in 
Pennsylvania  there  has  been  great  and  bitter  complaint  of  injustice  because  of  arbitrary 
classification.  I  mean  to  say  that  Pennsylvania,  if  we  can  believe  the  public  press  and 
believe  the  people  who  have  been  there  whom  we  know,  has  legislative  bodies.  State 
and  local,  that  are  partial,  bad  and  corrupt  to  a  greater  extent  than  those  of  any  State 
in  this  Union.  I  say  that  a  principle  of  taxation  where  there  are  favors  to  be  given  out 
on  the  one  hand  and  hard  blow  on  the  other,  unavoidably  leads  to  corruption  and  tends 
to  produce  injustice  between  the  different  classes  of  taxpayers. 


2?2(i  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Fairfax:  The  gentlenian  from  Petersburg  has  laid  some  stress  upon  the  fact 
that  he  does  not  think  this  clause  is  necessary  in  order  that  the  other  provisions  of  th© 
report  may  be  carried  out.  I  want  to  ask  him  if  he  can  refer  to  a  State  in  the  Union 
that  has  a  division  of  subjects  into  classes  that  has  the  equal  and  uniform  provision 
in  it  . 

Mr.  Hamilton:  i  presume  that  you  gentlemen  who  examine  it  can  tell  about  that. 
I  did  not  examine  it. 

I  mean  to  say,  so  far  as  I  am  able  to  judge,  that  in  this  State  of  Pennsylvania, 
where  the  conditions  ofproperty  are  different  from  ours,  the  results  of  this  change  have 
been  bad,  have  been  unjust,  and  that  we  are  running  a  great  risk  here  unnecessarily. 
I  say  it  is  not  necessary  to  put  this  bad  provision  into  our  Constitution  in  order  to 
carry  out  the  rest  of  the  plan  of  the  committee.  I  say  the  amendment  which  I  have 
suggested,  providing  for  equal  and  uniform  taxation  except  as  hereinafter  provided^ 
expressly  allows  your  Legislature  to  treat  license  taxes  as  they  are  treated  now  and 
gives  them  a  free  and  untrammelled  hand  in  the  imposition  of  franchise  taxes  upon 
corporations.  If  that  is  not  true  we  are  willing  to  change  the  amendment  so  as  to  ex- 
pressly except  license  and  franchise  taxes  from  the  operation  of  this  section. 

If  the  object  of  this  provision  is  to  tax  corporations  differently  from  other  people,  I 
say  that  you  will  have  a  free  hand  to  do  it  without  any  trouble  or  question.  There  can 
be  no  diflSculty  unless  you  intend  to  impose  a  tax  on  their  actual  tangible  and  visible 
personal  property  in  a  different  way  and  at  a  different  rate  from  what  you  do  upon  the 
property  of  individuals,  and  I  do  not  believe  anybody  would  want  to  do  that.  I  mean 
to  say  that  the  time  may  come,  as  I  believe  it  has  come  in  the  State  of  Pennsylvania, 
when  the  people  you  are  here  to  protect,  the  people  you  wish  to  protect,  the  great  body 
of  the  men  and  women  of  the  State  may  bitterly  rue  the  day  when  you  put  it  in  the 
hands  of  the  State  Legislature  and  the  local  taxing  body,  to  whom  that  power  may  un- 
doubtedly be  delegated,  to  tax  with  partiality,  with  favor  and  with  disfavor.  My  belief 
is,  although  I  do  not  personally  know  it,  that  there  is  no  State  in  this  Union  so  far 
dominated  by  corrupt  influences  as  the  State  of  Pennsylvania,  from  which  you  have 
taken  this  as  a  model.  I  see  no  reason  for  our  following  in  the  footsteps  of  such  a 
State.  Our  conditions  are  different.  Our  people  are  different.  There  is  no  good  to 
come  of  it.  We  can  get  no  good  from  putting  a  false,  bad  and  vicious  principle  into  our 
Constitution. 

Mr.  Meredith:  Will  you  name  any  court  or  any  respectable  writer  on  economics 
who  has  ever  said  that  taxation  by  classification  is  a  vicious  principle? 

Mr.  Hamilton:  I  do  not  know  of  one  that  has  admitted  it  was  a  good  principle  ex- 
cept the  Supreme  Court  of  Pennsylvania. 

Now,  gentlemen,  I  beg  your  pardon  for  taking  so  much  of  your  time.  I  have  added 
practically  nothing  new  to  this  subject.  I  feel  that  on  this  point  I  have  a  right  to  be 
heard,  and  that  I  am  entitled  to  be  listened  to.  I  speak  on  this  subject  as  much  for  the 
people  of  the  State  as  any  man  in  this  house.  I  believe  I  speak  more  for  the  interest 
of  the  people  of  the  State  on  this  point  than  any  gentleman  who  advocates  the  opposite 
view.  It  is  fundamentally  dangerous  to  do  what  we  are  going  to  do.  It  does  no  good, 
and  will  never  result  in  good,  unless  you  believe  it  is  good  to  favor,  for  instance,  a 
manufacturing  property  over  other  sorts  of  property  in  your  rates  of  taxation,  or  to 
favor  no  species  of  property  over  another. 

I  do  not  believe  that  is  ight.  There  is  something  inherent  in  me  which  makes  me 
feel  that  people  should  proportionately,  according  to  their  means,  bear  the  burden  of 
taxation.  I  think  it  is  a  principle  so  inherently  right  that  it  is  instinctively  recognized 
by  every  man  whose  mind  is  not  perverted  by  theories,  and  thoughts  connected  with 
theories  which  are  unsound  and  fallacious. 

I  thank  you  for  your  attention  and  beg  your  pardon  for  taking  up  so  much  of  your 
time. 

The  Chairman:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Petersburg. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA.  2127 


Mr.  Gwyn:    I  T^-ill  offer  a  substitute  for  the  first  section. 

All  propert}',  except  as  hereinafter  provided,  shall  be  taxed;  all  taxes  \\-hatsoever, 
whether  State,  local  or  municipal,  shall  be  equal  and  uniform  and  for  State  purposes 
shall  not  exceed  twenty-five  cents  on  each  hundred  dollar's  worth  of  real  or  personal 
property  so  assessed  for  the  purposes  of  State  taxation. 

The  Chairman:  Are  there  any  further  amendments  to  Section  1?  If  not  the 
Secretary  will  read  Section  2. 

Sec.  2.  Except  as  hereinafter  provided,  all  assessments  of  the  value  of  real  estate 
and  tangible  personal  property,  shall  be  at  their  fair  market  value,  to  be  ascertained 
as  prescribed  by  law.  The  General  Assembly  may  allow  a  lower  rate  of  taxation  to  be 
imposed  for  a  period  of  years  by  a  city  or  town  upon  such  land  as  may  be  added  to  or 
taken  into  the  corporate  limits  of  such  city  or  town.  Nothing  in  this  Constitution  shall 
prevent  the  General  Assembly  in  its  discretion  at  any  time  after  the  1st  day  of  January, 
1913,  from  segregating  for  the  purposes  of  taxation,  the  several  kinds  or  classes  of 
property  so  as  to  specify  and  determine  upon  what  subjects  State  taxes,  and  what  sub- 
jects local  taxes  may  be  levied. 

Mr.  Turnbull:  I  offer  an  amendment  to  Section  2  by  inserting  in  line  7,  after  the 
word  "■  town  "  the  words  as  is  imposed  on  such  property  within  the  limits  of  said  city 
or  town  at  the  time  said  land  is  added," 

The  amendment  was  adopted. 

Mr.  Carter:  Mr.  Chairman,  I  would  like  to  ask  the  chairman  of  the  committee 
what  is  meant  in  the  section  by  "'tangible  personal  property?"  T\'hy  does  he  use  the 
word  "tangible?"    Why  not  say  "personal"  property? 

;Mr.  Meredith:  Because  we  thought  that  intangible  personal  property  would  be 
dealt  with  better  under  the  franchise  tax.  It  is  rcognized  that  the  tax  on  intangible 
pioperty  does  not  amount  to  anything,  because  nobody  returns  stock  and  bonds.  It  has 
been  denounced  by  every  writer  on  the  subject. 

Mr.  Fairfax:  I  move  that  the  report  of  the  Committee  on  Taxation  and  Finance,  as 
amended,  be  adopted  and  reported  to  the  Convention. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Faixfax,  the  committee  rose,  and  the  President  having  resumed 
the  chair,  Mr.  Ayers  reported  that  the  Committee  of  the  Whole  had  had  under  consider- 
ation the  report  of  the  Committee  on  Taxation  and  Finance,  had  completed  the  report 
and  had  reported  it  back  to  the  Convention  with  the  recommendarion  that  t~  be  adopted 
with  amendments. 

]\Ir.  Cameron:  Mr.  President,  I  had  expected  this  morning  to  ask  the  Convention  to 
resolve  itself  into  Committee  of  the  Whole  for  the  consideration  of  the  report  of  the 
Executive  Committee.  For  some  unaccountable  reason  the  report  has  not  yet  been 
printed,  i  therefore  move  that  the  Convention  take  up  the  further  consideration  of 
that  portion  of  the  report  of  the  Executive  Committee  which  has  already  been  con- 
sidered. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Petersburg 
to  take  up  that  portion  of  the  report  of  the  Executive  Committee  which  has  already  been 
considered  in  Committee  of  the  Whole. 

The  motion  was  agreed  to. 

Mr.  Cameron:  Mr.  President,  at  the  time  the  consideration  of  the  report  of  the 
Executive  Committee  was  suspended,  some  days  ago,  the  question  pending  was  an 
amendment  offered  by  the  gentleman  from  Norfolk  county  (Mr.  Portlock)  in  regard  to 
the  office  of  the  Superintendent  of  Buildings,  the  Register  of  the  Land  Office,  the  Secre- 
tary of  the  Commonwealth. 

The  President:    The  Secretary  will  report  the  amendment. 

Amend  by  striking  out  all  the  words  in  lines  1.  2.  3  and  4,  and  insert  in  lieu  thereof 
the  following:  "  The  Secretary  of  the  Commonwealth  shall  be  elected  by  the  joint  vote 
of  the  two  houses  of  the  General  Assembly  for  the  same  term  as  the  Governor." 


2728 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


The  President:  The  question  is  on  agreeing  to  the  amendment  of  the  gentleman 
from  Norfollc  county  (Mr.  Portlock). 

The  ayes  and  noes  having  been  taken,  the  result  was  announced,  ayes  19,  noes  37, 
as  follows: 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Thomas  H.  Barnes,  Braxton,  Brown, 
Carter,  Chapman,  Epes,  James  W.  Gordon,  Gregory,  Hamilton,  Hatton,  Hunton,  Lin- 
coln, Orr,  Portlock,  Robertson,  and  Thom — 19. 

Noes — Messrs.  George  K.  Anderson  Barbour,  Manly  H.  Barnes,  Bouldin,  Cameron, 
Cobb,  Davis,  Duanaway,  Earman,  Fairfax,  Fletcher,  B.  T.  Gordon,  Green,  Hancock, 
Hardy,  G.  W.  Jones,  Keezell,  Lindsay,  Mcllwaine,  Meredith,  Miller,  Moncure,  R.  Walton 
Moore,  Mundy,  Parks,  Pedigo,  Richmond,  Rives,  Summers,  Thornton,  Turnbill,  Waddill. 
Wise,  Withers,  Wysor,  and  the  President — 37. 

The  amendment  was  rejected. 

Mr.  Portlock:  Mr.  President,  I  was  temporarily  absent  from  the  Convention  en- 
deavoring to  get  some  notes  I  had  made  on  this  subject.  I  regard  it  as  a  most  important 
matter,  especially  to  the  incumbent  of  the  office  of  Secretary  of  the  Commonwealth,  if 
not  to  the  State.  I  was  absent  for  only  a  few  minutes  trying  to  secure  some  notes  which 
I  had  made  with  reference  to  the  matter  upon  which  I  proposed  to  address  the  Conven- 
tion. The  matter  was  taken  up  in  my  absence,  and  not  knowing  how  the  vote  was  going 
I,  of  course,  voted  for  my  own  amendment.  I  hope  it  will  be  the  pleasure  of  some  gen- 
tleman here  wHo  voted  in  the  negative  to  move  a  reconsideration  of  this  matter;  in 
order  thai  I  may  be  heard  upon  this  subject. 

Mr.  Lindsay:  I  move  to  reconsider  the  vote  by  which  the  amendment  of  the  gen- 
tleman from  Norfolk  county  (Mr.  Portlock)  was  rejected. 

Mr.  Portlock:  I  now  move  that  this  matter  be  passed  by,  for  the  reason  that  I  have 
been  unable  to  find  the  page  who  has  taken  charge  of  my  effects  during  my  absence,  and 
who  has  removed  my  notes  and  papers  from  my  desk  in  the  hall  of  the  House  of  Dele- 
gates. I  iiope  iL  will  be  the  pleasure  of  the  Convention  to  pass  this  matter  by  for  the 
time  being,  in  order  that  I  may  find  myself  in  better  position  to  speak  on  this  question 
than  I  am  now. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Norfolk 
county  (Mr.  Portlock)  to  pass  by  the  motion  to  reconsider. 

The  motion  was  agreed  to — there  being,  on  a  division,  ayes  32,  noes  20. 

Mr.  Cameron:  Mr.  Chairman,  the  committee  moves  to  strike  out  section  18  of  the 
original  report  which  provides  for  a  board  of  public  works,  and  its  membership.  This 
section  is  rendered  unnecessary  by  the  action  taken  by  the  Committee  of  the  Whole  on 
the  report  of  the  Committee  on  Corporations  and  the  report  of  the  Committee  on  Taxa- 
tion and  Finance. 

The  President:    The  question  is  on  the  motion  of  the  gentleman  from  Petersburg 
(Mr.  Cameron)  to  strike  out  Section  8. 
The  motion  was  agreed  to. 

Mr.  Ayers:    I  snould  like  to  have  Section  12  read  as  it  now  stands. 
The  Secretary  read  as  follows: 

Sec.  12.  A  Secretary  of  the  Commonwealth  shall  be  elected  by  the  qualified  voters 
of  the  State  at  the  same  time  and  for  the  same  term  as  the  Governo?,  and  the  fact  of 
his  election  shall  be  determined  as  in  the  case  of  the  Governor.  He  shall  be  commis- 
sioned by  the  Governor,  and  shall  receive  a  salary  to  be  fixed  by  law.  He  shall  keep 
a  daily  record  of  the  official  acts  of  the  Governor,  which  shall  be  signed  by  the  Governor 
and  attested  by  the  Secretary,  and  when  required,  he  shall  lay  the  same,  and  any 
papers  minutes,  and  vouchers  pertaining  to  his  office,  before  either  house  of  the 
General  Assembly.  He  shall  discharge  all  the  duties  heretofore  attaching  to  the  office 
of  Register  of  the  Land  Office,  and  such  other  duties  as  may  be  prescribed  by  law.  All 
fees  received  by  the  Secretary  of  the  Commonwealth  shall  be  paid  into  the  treasury 

^^^M? Ayers:    Mr.  President,  I  move  to  strike  out,  in  lines  11  to  13,  the  words:  "He 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA.  2729 

shall  discharge  all  the  duties  heretofore  attaching  to  the  office  of  the  Register  of  the 
Land  Office  and  such  other  duties  as  may  be  prescribed  by  law." 

Mr.  President,  there  is  no  necessity  of  throwing  the  duties  of  these  three  officers 
upon  the  Secretary  of  the  Commonwealth.  You  will  note  that  by  doing  this  you  will 
tie  your  hands,  and  you  tie  the  hands  of  the  General  Assembly,  who,  at  present,  can 
alter  and  change  the  ordinary  duties  of  the  Secretary  of  the  Commonwealth.  In  so  far 
as  the  duties  oi  tnese  two  officers  are  created  by  statute,  and  not  by  the  Constitution, 
they  are  made  fixed  and  determined,  and,  if  placed  in  the  Constitution,  the  General 
Assembly  would  be  powerless  to  cnange  them,  although  they  may  change,  alter  and 
amend,  in  so  far  as  is  consistent  Avith  this  provision,  the  duties  of  the  Secretary  of  the 
Commonwealth.  The  Legislature  would  have  no  power  whatever  to  change  the  duties 
of  the  Secretary  of  the  Commonwealth,  in  so  far  as  those  duties  related  to  the  fixed 
statutory  duties  of  the  Superintendent  of  Public  Printing  and  the  Register  of  the  Land 
office. 

As  I  stated  in  my  argument  before  in  the  discussion  of  this  question  in  Committee 
of  the  whole,  the  Register  of  the  Land  Office  is  the  residuary  legatee  of  four  different 
offices  that  at  one  time  existed  in  this  State.  He  is  Superintendent  of  Weights  and 
Measures,  Superintendent  of  Public  Buildings,  and  has  charge  of  the  entire  machinery 
connected  with  the  maintenance  and  supervision  of  public  buildings.  He  makes  con- 
tracts for  all  supplies,  for  heat  and  light,  looks  after  everything,  and  is  required  to  dis- 
charge the  duties  formerly  incumbent  upon  the  engineer  in  charge  of  the  Capitol.  One 
of  the  duties  of  that  engineer  was  to  personally  repair  all  the  locks  and  keys  to  all  the 
doors  in  the  Capitol.  If  you  adopt  this  constitution  provision  you  make  it  incumbent 
upon  my  friend,  the  present  Secretary  of  the  Commonwealth,  to  be  a  good  locksmith. 
He  states,  as  a  matter  of  fact,  that  he  could  make  the  keys  if  personally  required  to  do 
so.  But  there  is  no  reason,  in  my  opinion,  to  fix  finally  the  duties  of  these  two  offices, 
which  are  created  by  statute  and  which  now  may  be  abolished  by  the  General  Assembly 
when  there  is  no  longer  any  necessity  for  them.  There  is  no  use  at  all  in  combining 
them  under  the  Secretary  of  the  Commonwealth.  There  is  no  economy  in  the  measure. 
The  records  of  the  Register  of  the  Land  Office,  and  the  books,  would  have  to  be  kept, 
and  will  be  kept,  because  they  are  the  basis  of  the  title  to  property,  to  every  home  in 
the  Commonwealth,  and  under  a  recent  decision  of  the  Supreme  Court  it  is  more  neces- 
sary than  ever  that  they  should  be  preserved.  They  ought  to  be  kept  as  they  are,  and 
kept  by  somebody  who  will  keep  them  properly,  and  who  will  furnish  copies  thereof 
without  a  delay.  The  Register  now  only  gets  $1,200  a  year,  with  about  $300  in  fees, 
making  $1,500,  and  there  has  already  been  consolidated  into  his  office  places  which  for- 
merly paid  nearly  $5,000  a  year.  It  seems  to  me  that  joii  have  almost  squeezed  the 
lemon  dry^  when  you  have  made  one  man  with  a  salary  of  $1,200  discharge  the  duties 
which  formerly  devolved  upon  officers  who  were  paid  about  $5,000. 

But,  leaving  that  matter  entirely  out  of  the  question,  it  is  certain  that  if,  undr  this 
Constitution,  jou  charge  upon  the  Secretary  of  the  Commonwealth  the  duties  now  dis- 
charged by  the  Register  of  the  Land  Office  and  the  Superintendent  of  Public  Printing, 
you  will  read  into  this  Constitution  some  sixty  to  seventy-five  sections  of  the  Code  of 
Virginia,  which  I  submit  is  a  thing  you  ought  not  to  do. 

I  hope  the  amendment  will  prevail. 

Mr.  Thom:  Would  not  your  object  be  better  attained  by  striking  out,  in  lines  11, 
12  and  13,  the  words  beginning  with  the  word  "  all,"  in  line  11,  and  ending  with  the 
word  "and,"  in  line  13^  so  that  it  would  read: 

He  shall  discharge  such  other  duties  as  may  be  prescribed  by  law. 

Mr.  Ayers:    I  will  accept  that  suggestion. 

Mr.  Thornton:    Is  it  not  rather  a  difficult  thing  now  to  tell  just  what  are  the  duties 
of  the  Register  of  the  Land  Office?    Have  they  not  been  put  upon  him  from  time  to 
172 — Const.  Deb. 


2730 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


time,  so  that  now,  if  you  undertake  to  find  out  what  they  are,  you  will  have  to  run  not 
only  through  the  Code  of  Virginia,  but  through  the  general  acts? 

Mr.  Ayers:  I  will  not  bother  the  committee  to  run  through  the  sections,  but  I 
have  here  some  sixty-four  or  five  sections^  all  of  which  you  will  have  to  read  into  the 
Constitution,  if  you  maintain  this  provision  of  the  Constitution. 

Mr.  James  W.  Gordon:  I  wish  to  address  a  tew  remarks  to  the  amendment  offered 
by  the  gentleman  from  Danville  (Mr.  Withers),  which  added  the  words  "Superinten- 
dent of  Public  Printing  "  to  the  language  contained  in  the  report. 

When  that  question  was  before  the  Convention  I  was  very  much  inclined  to,  and,  I 
think,  I  did,  vote  for  putting  that  language  into  this  section^^  but  since  that  time  I  have 
made  some  investigation  into  the  duties  of  the  Superintendent  of  Public  Printing,  and 
have  had  a  number  of  conversations  with  gentlemen  here  in  this  city  who  are  experts 
in  the  printmg  business,  and  are  entirely  disinterested  parties.  I  find  from  them  that 
the  duties  performed  by  the  Superintendent  of  Public  Printing  are  largely  of  a  tech- 
nical nature. 

It  seems  to  me  that  if  we  abolisli  the  office  of  the  Superintendent  of 
Public  Printing  it  will  be  necessary  for  the  Secretary  of  the  Commonwealth 
to  call  to  his  assistance  some  person  who  is  qualified  to  perform  those  duties,  and  it 
seems  to  me  to  be  absolutely  unnecessary  to  abolish  one  office  and  require  another 
officer,  a  subordinate^  to  be  put  into  the  office  of  the  Secretary  of  the  Commonwealth  for 
the  purpose  of  performing  the  duties  of  the  officer  whose  place  has  been  abolished.  Mr. 
Pollard,  my  colleague  from  Richmond,  handed  me  a  letter  this  morning,  which  I  think 
sets  out  succinctly  the  reasons  why  the  office  of  Superintendent  of  Public  Printing 
should  not  be  abolished.  I  think  this  is  a  reply  to  the  question  v^hich  was  just  asked 
me  by  the  gentleman  from  Danville  (Mr.  Yv'ithers).  I  imagine  that  this  letter  was 
written  to  Mr.  Pollard  in  response  to  a  request  for  some  information  on  the  subject, 
and  that  it  was  v/ritten  by  a  practical  man: 

The  statute  requires  the  Superintendent  of  Public  Printing  to  take  an  oath  that  he 
is  a  practical  printer,  skilled  in,  and  acquainted  with  the  details  of  the  printing  business, 
showing  the  importance  the  General  Assembly  attaches  to  technical  knowledge. 

.  He  has  to  prepare  specifications  for  the  printing  and  binding,  on  which  bids  are 
to  be  made,  and  then  to  see  that  the  specifications  are  complied  with,  and  if  these 
specifications  are  loosely  made,  much  loss  can  result  to  the  State. 

He  must  not  only  possess  a  knowledge  of  the  printing  business,  but  also  of  binding, 
for  this  branch  of  the  business  is  equally  as  important  as  the  printing.  He  has  to  pur- 
chase all  paper  used  by  the  State,  and  must  therefore,  have  a  knowledge  of  what  size, 
weights  and  qualities  are  needed  for  the  different  departments.  He  must  know  how 
much  paper  should  be  used  on  each  job,  and  it  is  his  duty  to  see  that  the  paper  of  the 
State  is  not  wasted. 

Let  me  state  right  here  that  I  understand  from  a  number  of  printers  in  the  city  of 
Richmond  that  wastage  is  a  very  large  item  of  the  cost  of  the  printing  department  of 
the  State,  and  that  there  is  no  item  in  which  it  is  easier  for  fraud  to  be  practiced  than 
in  the  quality  of  the  paper  furnished. 

It  is  his  duty  to  supervise  the  printing  and  to  see  that  it  is  not  unduly  spread  out, 
eo  fthat  more  pages  are  not  put  into  a  book  than  should  go  there. 

The  most  important  and  laborious  duties  the  Superintendent  has  to  perform,  is 
the  auditing  of  accounts,  as  it  involves  the  measuring  of  every  piece  of  printing  done; 
and  here  comes  the  great  saving  to  the  Commonwealth,  as  it  is  an  easy  matter  to 
impose  on  a  non-expert  and  secure  large  pay  for  bad  work. 

I  wish  to  enforce  that  right  here.  As  I  understand^  it  is  the  duty  of  Superinten- 
dent of  Public  Printing  to  advertise  for  bids  and  to  award  the  printing  to  the  lowest 
bidder.  When  the  work  done  under  those  bids  comes  in  it  is  his  duty  to  get  that  work 
measured  and  to  find  that  the  work,  as  completed,  corresponds  with  the  bid  made.  It 
is  very  often  the  case  that  a  large  saving  results  to  the  State  of  Virginia  by  this  system 
of  measuring,  which  can  only  be  done  by  a  practical  printer. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2T31 


Mr.  Withers:  I  would  like  to  ask  the  gentleman  if  the  public  printer  ever  sees  the 
contracts  for  the  various  departments;  if  they  are  not  made  and  delivered  directly  to 
the  head  of  the  departments  without  his  ever  seeing  them — 

Mr.  James  W.  Gordon:  I  believe  the  gentleman  is  better  acquainted  with  those 
details  of  the  government  than  I  am;  but  I  imagine  that  when  a  bid  is  accepted  by  the 
public  printer  the  work  comes  in  under  that  bid  and  that  it  becomes  a  part  of  his  duty 
to  measure  up  that  work  and  see  whether  it  has  been  faithfully  performed,  and  whether 
the  bill  which  is  rendered  for  the  work  is  a  just  and  proper  one. 

Mr.  Lindsay:  Can  the  gentlem.an  tell  what  is  the  costs  of  the  public  printer's 
office?    Is  there  a  clerk  or  an  assistant  allowed  to  him? 

Mr,  Gordon:     I  really  cannot  inform  you  on  that  question. 

A  large  portion  of  the  time  of  the  superintendent  is  taken  up  visiting  the  offices 
of  the  different  contractors  and  pushing  forward  the  work.  In  addition  to  this,  it  takes 
the  time  of  one  man  during  the  sessions  of  the  Legislature  to  look  after  the  printing, 
binding  and  distribution  of  the  work  of  that  body.  The  superintendent  has  to  box  and 
ship  all  the  acts  of  the  General  Assembly  to  the  different  counties  and  cities  of  the 
State  and  WTap  and  mail  all  the  advance  sheets  to  the  judges,  clerks,  Commonwealth 
Attorneys  and  members  of  the  Legislature. 

He  has  to  keep  a  separate  account  for  each  department  of  the  government  showing 
the  cost  of  printing,  binding  and  paper  for  each  job.  The  average  cost  of  the  public 
printing  and  binding  is  about  $27,000  annually,  and  without  proper  supervision  would 
be  greatly  increased.  As  to  reading  proof  sheets  by  the  superintendent,  that  is  imprac- 
ticable, except  on  rare  occasions.  It  is  estimated  by  experienced  and  conservative 
printers  that  it  would  take  all  the  time  of  four  men  (two  proof  readers  and  two  copy 
holders)  to  read  the  proofs  of  the  public  works. 

This  letter  is  signed  by  J.  N.  Carlton.  He  is  a  printer  here  in  Richmon^^  and  a 
responsible  gentleman.  I  have  no  doubt  that  the  gentleman  from  Danville  (Mr. 
Withers)  will  himself  admit  that  these  are  the  duties  of  the  Public  Printer  I  say  that 
these  duties  cannot  properly  be  performed  by  anybody  except  a  practical  printer^  a  man 
who  has  come  up  through  a  printing  office  and  understands  the  work  of  buying  paper, 
testing  paper,  writing  contracts,  measuring  work  and  all  that  sort  of  thing.  It  does 
seem  to  me  that  for  these  reasons  the  motion  to  reconsider  the  vote  by  which  the  amend- 
ment of  the  gentleman  from  Danville  (Mr.  Withers)  was  adopted  should  prevail.  This 
language  ought  not  to  be  inserted  into  the  report. 

Mr.  Cameron:  Mr.  President,  it  is  supposed  by  the  advocates  of  the  merger  of  the 
two  offices,  that  one  clerk  in  the  office  of  the  Secretary  of  the  Commonwealth  will  do 
the  work  now  done  by  the  Register  of  the  Land  Office.  As  I  understand  the  amend- 
ment offered  by  the  gentleman  from  Wise  it  comprehends  the  two  objects  of  striking 
out  from  tnis  report  the  office  of  Register  of  the  Land  Office  and  also  the  merging  of 
the  office  of  Public  Printer  into  the  office  of  the  Secretary  of  the  Commonwealth.  I  am 
unfortunate,  Mr.  President^  in  having  two  of  the  members  of  my  committee  absent  to- 
day. I  must,  therefore,  be  largely  guided  by  the  knowledge  of  the  feelings  and  wishes 
of  the  individual  members  of  the  committee  which  I  gathered  during  our  previous  con- 
versations. The  committee  was  not  entirely  agreed  upon  the  subject  of  merging  the 
office  of  Register  of  the  Land  Office  into  that  of  the  Secretary  of  the  Commonwealth. 

The  committee  was  unanimous  in  believing  that  it  would  be  improper  to  merge  the 
office  of  Public  Printer  into  the  office  of  the  Secretary  of  the  Commonwealth.  Under 
those  circumstances  we  believed  the  question  of  economy  involved  would  be  infinitesi- 
mal, and  that,  assuming  that  the  statement  of  the  inefficient  manner  in  which  the  duties  of 
the  superintendent  of  public  printer  have  been  discharged  in  the  past  is  true,  a  Con- 
stitutional remedy  is  not  what  is  needed.  To  provide  by  a  Constitutional  provison  for 
the  duties  of  the  superintendent  of  public  printing  and  for  properly  scheduling  such 
duties  it  seems  to  us  is  training  a  Columbiad  gun  upon  a  sparrow.  I  will  therefore  be- 
lieve I  am  voicing  the  will  of  the  committee  of  which  I  am  chairman  by  accepting  the 
amendment  of  the  gentleman  from  Wise. 


2732  DEBATES  OF  THE  COJSTSTITUTIOISrAL  CONVEjSTTION"  OF  VIRGINIA. 


Mr.  Withers:  Mr.  President^  I  am  infinitely  more  sorry  at  having  to  say  anything 
than  anybody  is  at  having  to  hear  me.  That  is  not  modesty,  but  it  is  the  result  of  ner- 
vous strain  and  tension  that  are  telling  upon  me  at  a  rate  which  I  had  no  idea  I  could 
be  susceptible  to. 

But  I  do  wish  to  call  the  attention  of  the  Convention  to  the  reason  why  this  motion 
was  made,  and  in  the  very  briefest  possible  manner  explain  one  or  two  things.  This 
matter  is  in  the  line  of  the  investigation  of  a  special  committee  created  by  this  body 
for  that  purpose,  and  while  it  may  be  training  a  Columbiad  gun,  or  even  a  15-inch  gun 
upon  a  sparrow,  it  was  a  systematic  policy  that  the  committee  found  neces- 
sary to  adopt  in  order  to  effect  changes  in  government  that  would  contribute 
to  efficiency  and  economy.  The  amendment  involves  two  offices,  the  superintendent  of 
public  printing  and  the  register  of  the  land  office.  I  submit  to  you^  Mr.  President,  and 
gentlemen  of  this  Convention,  that  the  very  best  answer  to  every  argument  adduced 
upon  this  floor  is  the  fact  that  this  Convention  has  had  to  complain  again  and  again 
because  its  own  printing  is  not  done;  and  the  system  which  creates  such  a  condition  of 
affairs  ought  to  be  remedied  even  if  we  have  to  use  a  Columbiad  gun  or  a  drastic 
measure.  I  will  say,  in  answer  to  the  gentleman  from  Richmond  city,  that  I  have  the 
testimony  of  experts  who  have  testified  to  me  in  person.  I  did  not  bring  their  letters 
here  because  it  is  unnecessary  to  do  so,  and  I  do  not  desire  to  draw  private  citizens  into 
a  controversy  of  this  kind.  This  oflGlce,  under  the  law  as  it  now  exists  is  practically  not 
worth  a  baubee,  a  flip  of  the  fingers  to  the  State.  That  is  the  testimony  of  expert 
printers  who  have  seen  fit  to  express  in  private  what  they  did  not  care  to  say  in  a  public 
controversy. 

One  more  thing.  You  observe  that  the  argument  for  the  retention  of  this  office, 
outside  of  the  Convention,  comes  from  a  printer  who  gets  the  contract.  Not  that  I 
know  that  the  gentleman  who  wrote  that  letter  has,  at  present,  a  contract,  but  the  print- 
ers, and  by  printers  I  mean  the  men  who  own  the  plants  and  run  the  establishments,  are 
the  beneficiaries  of  this  system  and  for  that  very  reason  the  amendment  which  I  pro- 
posed is  not  favorably  received  by  them.  The  law  of  1893-94  compels  the  sending  of 
two  slips  of  paper  from  the  printing  establishment  to  a  different  establishment  in 
order  to  have  a  little  piece  of  wire  run  through  it_^  and  that  is  called  a  binding.  There 
is  where  our  trouble  conies  from  and  there  is  where  the  language  of  this  amendment 
"  as  may  be  prescribed  by  law  "  becomes  effective,  so  that  this  statute  can  be  wiped  out 
and  a  contract  can  be  let  for  printing  and  binding,  so  that  the  work  may  be  properly, 
efficiently  and  quickly  done. 

This  would  be  no  hardship  upon  the  Secretary  of  the  Commonwealth  because  other 
States  of  this  Union,  equal  in  intelligence  and  in  the  administration  of  their  affairs  to 
the  State  of  Virginia,  the  duties  of  the  public  printer  are  performed  by  a  clerk  in  the 
office  of  the  Secretary  of  the  Commonwealth.  When  gentlemen  get  up  on  this  floor  and 
seriously  contend  that  the  duties  of  the  office  of  public  printer  are  of  such  importance 
as  to  require  the  attention  of  a  State  official,  instead  of  that  of  a  subordinate  employe^ 
it  can  be  answered  only  with  a  smile  because  it  is  absurd.  It  is  not  worth  a  serious 
argument  to  respond  to  it,  because  the  facts  stare  us  in  the  face.  When  a  man,  in  order 
to  sustain  his  position  in  argument,  says  that  an  official  ought  to  be  retained  upon  the 
pay  roll  in  order  to  mail  the  reports  of  the  General  Assembly,  we  can  treat  it  only  with 
a  smile.  Any  contractor  will  gladly  do  the  boxing  and  packing  in  order  to  get  the 
contract,  unless  there  is  a  combination  to  prevent  it. 

As  to  the  Register  of  the  Land  Office^  I  want  to  call  your  attention  to  one  fact.  I 
have  looked  at  every  section  of  that  long  list  that  the  gentleman  from  Wise  (Mr.  Ayers) 
flourishes  in  his  hand  and  all  of  the  duties  combined  mentioned  in  those  sixty-four 
sections  amount  to  practically  nothing.  The  duties  of  a  locksmith  can  be  performed  by 
any  employe  on  that  pay  roll  which  last  year  cost  the  State  $10,940  under  the  head  of 
employes  of  the  Capitol.  The  duties  of  the  Superintendent  of  Public  Buildings  can  be 
designated  by  the  Secretary  of  the  Commonwealth  to  the  most  efficient  man  on  that  roll 


E'ZSATZS  or  lEE  COXSTIXriIOyAL  COXTEyilOX  OP  TIEGIMA. 


2733 


and  be  made  responsilDle  to  Mm  for  ihe  proper  performance  of  iliose  dniies.  Tlie 
records  tliax  lie  in  ihai  office  ouglii  lo  "be  kepi  where  the  Secretary  of  the  Common- 
wealth keeps  the  records  of  the  State  of  Virginia.  There  is  nothing  in  the  way  of 
uniting  these  positions.  It  does  not  make  the  Secretary  of  the  Commonwealth  a  lock- 
smith. It  does  not  make  him  the  Superintendent  of  Grounds  and  Buildings.  He  has  a 
force  of  employes  ai  his  command  ^hich  costs  this  State  Sll.OOO  per  annum,  any  one  of 
whom  he  can  designate  for  these  positions,  and  force  and  compel  them  to  fill  them. 

As  to  the  Secretary  of  the  Commonwealth,  the  issuing  of  fiity-two  land  grants  per 
year,  under  the  Great  Seal  of  the  State,  will  not  he  a  very  gi^eat  hurden  for  him.  On 
motion  of  the  gentleman  from  "VTise  the  library  has  been  taken  away  from  the  Secretary 
of  the  Commonwealth.  By  the  action  of  this  Convention  sitting  in  Committee  of  the 
"Whole,  by  a  very  large  majority,  the  subject  of  charters  has  been  taken  away  from  the 
Secretary  of  the  Conmionwealth.  What  will  the  Secretary  of  the  Commonwealth  have 
to  do?  He  ought  to  be,  in  my  humble  opinion,  the  most  important  officer,  next  to  the 
Executive,  and  possibly  the  First  Auditor.  There  will  be  practically  nothing  left  for 
him  to  do.  The  evil  of  keeping  up  the  office  of  an  unnecessary  official  is  continuous. 
There  is  always  a  demand  for  an  increase  of  salary,  through  the  Legislature,  due  to  the 
fact  that  he  is  a  good  fellow  and  an  excellent  officer.  The  evil  in  it  is  seen  in  the  con- 
tinual attempt  to  increase  the  salaries  of  the  basement  officers.  The  Senate  appropria- 
tion bill  of  this  session  contains  a  clause  which  increases  the  salary  of  one  of  the  base- 
ment ofhcials  $300  per  annum.  TTe  are  told  that  these  are  but  minutiae  and  details  of 
economy.  To  that  I  assent,  but  I  say  you  have  thrown  many  economical  measures  of 
importance  aside,  and  if  you  now  refuse  to  consider  the  details  of  economy  what  is  left? 
TThen  we  are  told  that  we  cannot  reduce  the  tax  rate  of  the  State  of  Virginia  will  it  be, 
forsooth,  because  there  is  no  need  for  the  tax  or  because  there  are  unnecessary  officials 
occupying  desirable  places  to  spend  the  money  upon,  in  order  that  the  surplus  may  be 
gotten  rid  of? 

Mr.  Ayers:  I  desire  to  say  ihat  what  the  gentleman  from  Danville  O.Ir.  Withers) 
has  stated  may  be  true,  and  yet  there  is  no  sufficient  reason  given  to  this  Convention 
for  devolving  the  duties  of  these  two  officers  upon  the  Secretary  of  the  Commonwealth. 
By  reason  of  the  articles  which  have  been  adopted  by  this  Convention  the  duties  of  the 
Secretary  are  greatly  lessened  and  he  will  have  time  and  opportunity  to  discharge  many 
other  duties.  You  have  now,  in  the  Constitution,  under  my  amendment,  a  provision  by 
which  the  General  Assembly  may  devolve  other  duties  upon  him.  My  objection  to  this 
provision  is  that  you  write  into  the  Constitution  sixty  sections  of  the  Code  and 
numerous  acts  of  the  General  Assembly.  I  do  not  believe  there  is  a  member  upon  this 
fioor  that  can  tell  one-quarter  of  the  duties  of  either  one  of  these  officrs  and  yet  you  say 
that  the  Secretary  shall  discharge  the  duties  heretofore  devolving  upon  these  officers, 

^l-.Ir.  Cameron:  Before  making  the  proper  motion  to  secure  the  action  of  the  Con- 
vention in  regard  to  this  amendment,  I  wish  to  move  a  suspension  of  the  rules  so  that 
the  supplemental  report  of  the  committee  on  the  Executive  Department  may  be  con- 
sidered in  Convention  without  reference  to  the  Committee  of  the  Whole.  It  is  a  very 
short  document,  presents  very  definite  issues,  and  I  think  no  difficulty  will  arise.  I 
believe  we  will  save  time  by  adopting  the  course  I  suggest. 

The  President:  If  there  is  no  objection  of  the  suggestion  made  by  the  Chairman 
of  the  Committee  on  the  Executive  Department  it  will  be  adopted.. 

^1t.  Cameron:    I  nov-  move  that  the  chair  be  vacated  until  4  o'clock  this  afternoon. 

The  motion  was  agreed  to  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
chair. 


2734 


DEBATES  OF  THE  COXSTITUTIOIsTAL  CONVENTION  OF  VIRGINIA. 


EXECUTIVE  DEPARTMENT. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Wise.  The  proposition  being  divisible,  the  question  will  be  taken  first  on  the  part  of 
the  amendment  relating  to  the  Register  of  the  Land  Office. 

The  question  having  been  taken,  the  result  was  announced — ayes  31,  noes  14. 

So  the  amendment  was  agreed  to. 

The  President:    The  question  recurs  on  the  second  portion  of  the  amendment  relat- 
ing to  the  duties  of  the  Public  Printer. 

The  question  having  been  taken,  the  result  was  announced — yeas  36,  noes  19. 
The  amendment  was  agreed  to. 

Mr.  Cameron:  Mr.  President  on  behalf  of  the  committee  I  move  to  amend  Section 
12  by  striking  out  lines  4,  5,  6,  the  words  "  he  shall  be  commissioned  by  the  Governor, 
and  shall  receive  a  salary  to  be  fixed  by  law." 

The  requirement  that  he  shall  be  commissioned  by  the  Governor  is  in  the  present 
Constitution,  and  there  is  no  reason  whatever  for  it  in  this  report,  as  there  is  no  pro- 
vision of  the  kind  as  to  any  other  executive  officer.  The  provision  that  he  shall  receive 
a  salary  to  be  fixed  by  law  is  superfluous  in  this  section^  because  if  the  members  will 
turn  to  the  supplemental  report  they  will  find  that  Section  15  provides  that  the  salary 
01  every  officer  of  the  executive  department  shall  be  determined  by  law. 

Therefore  the  committee  ask  that  these  words  in  lines  4,  5  and  6  be  stricken  from 
Section  12. 

The  amendment  was  agreed  ^o. 

:^r,  Portlock:  I  presume  the  resolution  which  I  offered  is  now  in  order. 
Mr.  President  and  gentlemen  of  the  Convention,  I  offered  a  resolution,  some  days 
ago,  amending  Section  12  of  this  report^  which  had  for  its  object  the  election  of  the 
Secretary  of  the  Commonwealth  by  the  joint  vote  of  the  two  houses  of  the  General 
Assembly,  instead  of  the  election  of  that  officer  by  the  direct  vote  of  the  people.  When 
I  offered  this  resolution  I  did  not  do  so  in  any  spirit  of  captiousness  or  trivial  objection, 
but  because  I  believed  that  the  election  of  the  Secretary  of  the  Commonwealth  by  the 
people  would  be  detrimental  to  the  best  interests  of  the  State  of  Virginia.  Therefore, 
when  this  motion  was  taken  up  this  morning  during  my  temporary  absence  from  the 
hall  and  was  voted  down  by  this  body,  I  felt  more  than  concerned  about  the  situation. 
It  was  with  some  delicacy  that  I  asked  some  gentlemen  who  had  voted  in  the  negative, 
having  myself  voted  in  the  affirmative,  to  move  to  reconsider.  I  did  so  because  I  felt 
it  to  be  my  duty,  in  the  interest  of  the  State  of  Virginia  to  be  heard  upon  this  question. 
I  have,  Mr.  President,  given  this  matter  some  thought.  I  felt,  after  hearing  the 
announcement  of  the  vote  this  morning,  that  the  majority  of  the  body  who  had  voted  on 
this  resolution  offered  by  me  had,  perhaps,  voted  on  this  measure  inadvertently,  without 
having  given  the  matter  the  consideration  which  I  feel  I  have  given  to  it.  I  therefore 
ask  the  consideration  of  this  Convention  for  a  short  time  to  permit  me  to  express,  my 
views  as  to  the  necessity  of  supporting  the  resolution  whch  I  have  offered. 

Mr.  President,  this  office  of  Secretary  of  the  Commonwealth  is  a  far  more  important 
factor  in  the  official  arrangement  of  our  State  government  than  is  generally  supposed. 
This  officer  is  more  or  less  remote  from  the  people  of  the  State  of  Virginia  by  reason 
of  the  fact  that  his  duties  are  performed  under  the  acts  of  the  General  Assembly  and 
under  the  supervision  of  that  body  rather  than  under  the  supervision  of  the  electors  of 
the  State  of  Virginia.  For  that  reason,  I  say,  his  duties  have  not  been  generally  under- 
stood or  appreciated.  They  have  not  been  as  generally  commented  upon  as  the  official 
duties  of  the  other  officers  of  this  Commonwealth,  and  I  do  not  think,  with  all  due 
deference  that  the  members  of  this  Convention  have  placed  a  proper  estimate  upon 
those  duties.  For  that  reason,  as  I  have  stated,  I  felt  that  there  was  some  inadver- 
tence and,  I  apprehend,  some  indifference  involved  in  the  vote  upoD  this  question  this 
morning. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2735 


As  to  the  importance  of  this  office,  and  therefore  the  necessity  for  securing  an 
efficient  and  acceptable  incumbent  in  the  office^  I  beg  to  call  your  attention  very  briefly 
to  some  of  the  duties  of  the  position  which  the  Secretary  of  the  Commonwealth  has  to 
perform.  In  the  first  place,  Mr.  President  and  gentlemen,  the  Secretary  of  the  Com- 
inonwealth  is  to  all  intents  and  purposes  the  head  of  one  of  the  bureaus  of  this  State — 
one  of  the  official  bureaus.  He  is  the  State  Secretary,  so  to  speak,  of  the  Governor.  It 
is  his  duty  at  all  times  to  inform  himself  as  to  all  the  official  acts  of  the  Governor  and 
to  keep  a  daily  record  of  them.  He  is  brought  into  intimate  personal  and  official  con- 
tact with  the  Governor  in  the  discharge  of  the  duties  of  his  office  as  Secretary  of  the 
Commonwealth.  He  is  the  official  amanuensis,  so  to  speak^  of  the  Governor,  and  in  that 
way  his  duties  are  very  closely  connected  with  those  of  the  office  of  the  executive  of 
this  State.  In  additon  to  that,  he  has  various  duties  to  perform  under  the  general 
supervision  of  the  General  Assembly  of  Virginia  and.  so  far  as  those  duties  enter  into 
his  official  actions,  his  office  amounts  to  an  official  bureau.  The  Secretary  of  the  Com- 
monwealth is  the  keeper  of  the  great  seal  of  the  State.  He  has  to  issue  all  commis- 
sions made  by  the  Governor^  and  to  impress  upon  them  his  signature  and  the  seal  of  the 
State  of  Virginia.  He  is  the  official  librarian  of  the  State,  although  under  the  consti- 
tutional provision,  which  will  probably  be  incorporated  into  the  Constitution  in  this 
State,  he  may  not  be  designated  as  "  librarian,"  yet  the  strong  probability  is  that 
the  duties  which  he  performs  now  will  devolve  upon  him  under  this  new  commission^ 
whether  he  be  designated  as  librarian  or  not.  At  present  he  has  the  very  responsible 
and  professional  duty  of  purchasing  all  the  books  for  the  public  library,  which,  of  itself, 
necessitates  a  high  degree  of  intelligence  and  culture. 

Mr.  Lindsay:  Under  the  new  Constitution  those  duties  are  certainly  taken  away 
from  him. 

JMr.  Portiock:  I  am  speaking  distinctly  as  to  what  his  present  duties  are  and  what 
his  probable  future  duties  will  be  under  the  new  Constitution.  I  do  not  think  the  office 
of  the  Secretary  of  the  Commonwealth  will  be  wholly  disconnected  from  the  public 
library,  even  if  the  new  corporation  be  established  in  the  Constitution  to  be  framed  by 
this  body. 

Mr.  Lindsa}':  There  is  no  doubt  that  the  duties  are  entirely  removed  from  him  and  that 
ir  is  hardly  fair  to  use  as  an  argument  the  fact  that  he  will  perform  the  duties  of  public 
librarian  when^  under  the  new  Constitution,  those  duties  are  absolutely  devolved  upon 
another  branch  of  the  government. 

Mr.  Portiock:  I  understand  that  this  propo'sed  library  commission  will  have  gene- 
ral supervison  and  charge  of  the  public  library.  How  far,  in  their  discretion,  they  may 
impose  duties  upon  the  Secretary  of  the  Commonwealth  I  cannot  say.  I  believe  that, 
notwithstanding  this  commission,  he  will  have  important  duties  to  perform  in  that 
direction.  But  whether  that  be  true  or  not,  eliminating  if  you  please  his  official  dutes 
so  far  as  the  public  library  is  concerned,  you  will  find  that  the  duties  whch  still  pertain 
to  his  office  make  it  a  most  important  office  in  this  State.  He  has  charge  of  the  seal  of 
the  State. 

He  has  sole  charge  of  the  public  library,  and  the  library  commission,  so  far  as  I 
have  been  able  to  ascertain^  will  not  deprive  or  take  from  him  the  duties  which  now 
devolve  on  him  as  the  custodian  of  public  documents.  To  him  is  confided  the  sale  of 
public  documents,  such  as  copies  of  acts  of  the  General  Assembly^  copies  of  the  reports 
of  the  Supreme  Court  of  Appeals,  and  special  laws  which  he  is  required  to  cull  out  from 
the  acts  of  the  General  Assembly  and  send  broadcast  throughout  the  State  for  the  en- 
lightenment of  the  people  upon  general  subjects,  such  as  election  and  oyster  laws,  and 
others. 

The  Secretary  of  the  Commonwealth  is  the  keeper  of  the  executive  journal.  He  is 
supposed  to  be  in  his  office  daily  and  to  record  the  transactions  of  the  Governor.  In 
that  I  conceive  a  most  important  duty  devolves  upon  him.  He  records  all  the  charters, 
whether  issued  under  the  present  laws  or  under  the  provisions  to  be  made  by  this  body, 


2736  DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 

and  he  is  the  custodian  of  these  original  documents.  All  these  duties  are  confided  to  the 
Secretary  of  the  Commonwealth.  He  is  the  custodian  of  all  records  to  be  recorded  in 
his  office.  These  charters,  as  we  all  know,  are  most  valuable  and  important,  and  are 
referred  to  by  the  people  every  day — not  only  by  our  own  people  in  this  State,  but 
through  the  entire  Union — who  apply  to  the  Secretary  for  information  touching  these 
charters  and  for  authenticated  copies  of  these  important  documents.  They  must  be 
recorded  somewhere.  There  must  be  a  custodian  somewhere.  Whether  they  are  here- 
after granted  by  the  court  or  by  the  Legislature^  or  recommended  by  the  commission 
to  be  granted  by  any  power  on  earth,  they  are  still  to  be  recorded.  They  must  still 
have  a  custodian.  That  is  the  most  important  function  to  be  performed  by  the  Secre- 
tary of  the  Commonwealth,  as  we  must  all  admit.  In  addition  to  that,  gentlemen,  the 
Secretary  of  the  Commonwealth  has  most  important  duties  to  perform  with  reference 
to  State  elections.  In  all  State  elections  it  has  heretofore  been  his  duty^  and  it  will 
hereafter  be  his  duty,  if  he  has  any  duties  to  perform  as  such  officer,  to  send  out  prior 
to  every  election  the  names  of  all  the  candidates  for  State  and  Federal  offices.  He  has 
to  send  out  registration  blanks  to  118  electoral  boards  in  the  State  of  Virginia.  He  has 
to  send  out  poll  books.  After  the  election  he  is  a  member  of  the  State  Board  of  Can- 
vassers, whose  duty  it  is  to  count  the  returns  and  make  up  those  returns  and  certify 
them.  He  must  furnish  these  118  electoral  boards  throughout  the  State  with  correct 
lists  of  the  names  of  the  State  and  Federal  officers  to  go  upon  those  tickets.  That,  I 
say,  is  a  most  delicate  and  important  duty  when  you  come  to  consider  the  consequences 
which  may  be  involved  in  a  mistake  in  the  names  of  those  candidates  for  office  or  in  the 
canvassing  of  those  returns  and  certifying  the  same.  His  duty  in  that  respect  is,  of 
course,  all  important  to  the  people  of  this  State.  He  is  also  a  member  of  the  military 
board,  and,  as  I  understand  it,  has  charge  of  the  funds  of  that  board.  That,  also,  is  an 
important  position.  That  is  an  important  adjunct  to  the  duties  of  his  office,  and  one 
that  cannot  be  depreciated  nor  ignored  in  summing  up  the  important  and  indispensible 
functions  performed  by  the  Secretary  of  the  Commonwealth. 

In  addition  to  this,  the  Secretary  of  the  Commonwealth  signs  all  warrants  on  the 
treasury  for  all  printing  in  the  State  of  Virginia^  which  is  a  most  important  duty.  It 
is  incumbent  upon  him  to  issue  commissions  to  all  the  judges  elected  by  the  Legislature 
and  to  all  notaries  public  and  to  other  officers  appointed  either  by  the  Legislature  or 
the  Governor  of  this  State.  This  is  also  necessary  work,  and  must  be  performed  by  this 
officer. 

Now,  as  to  the  duties  which  he  is  called  upon  to  perform  which  may  not  seem  to 
be  strictly  official,  but  which,  nevertheless,^  are  important  to  the  State  of  Virginia  and 
to  the  people  of  this  State,  as  well  as  to  people  living  without  its  boundaries.  He  re- 
ceives letters  every  day  in  the  year  asking  for  information.  There  are  secretaries  of 
every  State  in  this  Union,  and  they  are  the  official  who  is  generally  known  to  people 
throughout  the  Union  as  the  only  person  to  whom  people  outside  of  the  State  can  with 
any  certainty,  address  letters  with  reference  to  matters  pertaining  to  the  material  in- 
terests of  the  State  and  to  the  interests,  also,  of  the  individuals  who  write  those  letters. 
I  am  told  by  the  Secretary  of  the  Commonwealth  that  he  receives  letters  asking  for 
information  about  every  subject  that  could  possibly  be  suggested  to  the  human  mind, 
relating  to  the  various  interests  of  this  State,  and  while  it  is  not  his  official  duty  to 
answer  those  letters,  he  feels  that  it  is  a  duty,  nevertheless,  which  he  ought  to  perform 
in  the  interest  of  the  State.  I  am  told  that  the  postage  on  those  leters  amounts  to  a 
considerable  sum  of  money  in  the  course  of  a  year,  going  up  into  the  hundreds  of  dol- 
lars. The  Secretary  of  the  Commonwealth  is  the  only  person  to  whom  people  outside 
of  the  State  feel  that  they  can  address  letters  of  this  character  with  any  assurance  that 
they  will  have  a  prompt  or  intelligent  reply.  So  much,  gentlemen^  for  the  duties  of 
this  office.  I  beg  your  pardon  for  having  gone  into  this  question  so  minutely,  but  I  have 
felt  that  it  was  proper  to  show  this  Convention  the  importance  of  this  office,  and  to 
show  the  necessity  for  securing  an  officer  who  would  be  efficient  in  the  discharge  of  the 
duties  which  devolve  upon  him  in  this  capacity. 


DEBATES  OE  TPIE  COXSTITUTIOXAL  COXVEXIIO^  OE  YiEGIMA. 


Trhat  will  be  the  result  if  you  make  the  election  to  this  office  so  difficult,  so  burden- 
some financially  and  otherwise,  as  to  make  it  impossible  to  secure  the  services  of  a  gen- 
tleman ^vho  will  effectively  and  acceptably  fill  this  position?  The  position  I  take  here 
is  that  if  the  Secretary  of  the  Commonwealth  is  to  be  elected  by  the  people  of  this 
State_  he  will  be  compelled  to  make  a  State  canvass  from  one  end  to  the  other  of  this 
Commonwealth,  traveling,,  as  he  will  be  compelled  to  do,  from  the  seashore  to  the  re- 
mote western  boundaries,  all  the  way  from  Norfolk  to  Scott  or  Lee  county,  a  distance  of 
600  miles_  and  250  or  300  miles  from  the  south  side  to  the  northern  neck  of  the  State. 
And  by  doing  that  it  will  take  this  officer  away  from  the  discharge  of  his  duty  at  the 
very  time  when  he  would  be  most  needed.  He  would  be  compelled  under  those  circum- 
stances, to  do  as  every  other  aspirant  for  nomination  and  election  has  to  do,  go  out 
into  the  campaign,  and  without  any  reference  to  the  question  of  expense,  it  would  take 
this  officer  from  the  discharge  of  his  duty  at  the  time  of  all  others,  when  he  is  required 
to  be  in  his  office  to  discharge  the  most  important  duties  of  that  office.  TThy,  gentlemen 
of  the  Convention^  at  the  very  time  when  this  officer  would  be  compelled  to  go  over  the 
State  of  Virginia  for  the  purpose  of  making  his  campaign,  he  would  be  compelled  to  be 
ir  his  office  attending  to  the  duties  of  that  very  election,  duties  whch  he  could  not  turn 
over  to  his  assistants,  duties  in  which  if  a  mistake  were  made,  it  would  be  a  reflection  of 
the  most  serious  character  upon  this  officer_  and  of  serious  consequence  to  the  person, 
the  candidate  in  whose  case  the  mistake  may  have  been  made.  I  want  you  to  remem- 
ber, gentlemen,  that  he  is  a  member  of  the  canvassing  board,  and  as  one  of  that  board 
he  will  have  to  pass  upon  the  count  in  his  own  case. 

Z\Ir  Cameron:  The  gentleman  has  evidently  not  read  the  section  which  he  is  mov- 
ing to  amend.  It  distinctly  provides  that  his  election  shall  be  ascertained  in  the  same 
manner  as  that  of  the  Governor. 

Mr.  Portlock:  I  beg  your  pardon.  I  may  be  wrong  as  to  that.  I  did  overlook  that 
provision  in  this  section.  He  did  not  have  to  pass  on  his  own  case.  I  am  glad  to  recall 
that  that  difficulty  was  obviated  by  the  committee.  But  certainly  at  a  time  when  he 
ought  to  be  in  his  office  attending  to  the  duties  relating  to  that  election,  he  would  be  com- 
pelled to  be  absei-t  from  his  office  and  to  neglect  those  duties.  I  say  that,  of  itself, 
ought  to  be  a  sufficient  ar.gument  against  the  election  of  this  officer  by  the  people.  So 
much  for  the  inconvenience,  and  perhaps,  disaster  to  the  State  of  Virginia,  involved  by 
his  absence  from  his  office  at  such  a  time.  I  have  not  been  so  fortunate  myself  as  to 
have  had  the  experience  of  making  a  State  canvass;  but  every  aspirant  for  office  in  this 
State  who  has  made  a  State  canvass  must  know  and  does  know  what  it  means  in  the  way 
of  financial  cost  to  be  a  candidate.  I  assert,  upon  information  derived  from  gentlemen 
who  have  made  these  State  canvasses,  that  at  least  one  year's  salary  of  this  officer,  the 
Secretary  of  the  Commonwealth,  ^vould  be  necessary  as  a  campaign  fund  to  secure  his 
election  or  re-election  to  the  office.  The  Secretary  of  the  Commonwealth  gets  a  paltry 
salary  of  $2,000  a  year,  and  in  addition  to  that  he  gets  some  little  commissions  from  the 
sale  of  public  records,  acts  of  the  General  Assembly,  Code,  and  other  public  documents, 
amounting  in  the  aggregate  to  about  $360.  You  see  that  the  total  income,  or  rather 
salary  and  commissions  combined,  amount  to  not  over  the  sum  of  2,360  a  year.  Vill 
this  Convention  say  that  any  man  occupying  this  positon  as  a  State  officer  can  afford, 
with  that  small  salary,  to  take  the  office  in  the  first  place  to  say  nothing  of  the  pros- 
pects of  p.  drain  upon  his  small  salary  at  any  subsequent  election  when  he  might  desire 
or  feel  impelled  to  again  run  for  the  office.  Vill  anybody  say  that  any  man  who  has 
the  capacity  to  fill  this  office,  and  who  might  otherwise  take  it  at  the  small  salary  of 
S2.360  a  year,  would  take  it_  when  the  necessity  would  be  staring  him  in  the  face  of 
making  his  canvass,  which  would  cost  him  at  least  one  year's  salary,  and  perhaps  im- 
poverish and  pauperize  him?  I  do  not  know  any  gentleman  who  would  be  so  anxious 
for  office  or  to  serve  his  State  as  to  seek  this  office  under  these  circumstances.  In  addi- 
tion to  the  legitimate  expenses,  in  addition  to  the  contributions  which  he  would  be 
called  upon  to  make  to  the  State  campaign  fund  and  to  the  county  fund,  he  ^vould.  as 


2738 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION- OF  VIRGINIA. 


everybody  knows  who  has  been  a  candidate  in  an  election  in  the  State  or  county  or 
district,  be  expected  to  contribute,  to  donate  to  every  church  built  and  to  be  erected, 
every  Sunday-school  picnic  and  handkerchief  bazaar,  every  conceivable  charitable  object 
and  entertainment,  to  say  nothing  of  burying  the  dead.  These  things  appear  trival,  but 
they  cannot  be  ignored,  as  a  condition  in  the  election  of  officers  in  the  State,  city  or 
county. 

Therefore  I  say  that  when  you  consider  the  importance  of  this  office,  when  you  con- 
sider that  it  would  be  impossible  to  secure  the  service  of  a  proper  and  acceptable  man 
for  the  small  salary  v/hich  is  paid,  because  of  the  difficulty,  pecuniary  and  otherwise,  of 
obtaining  his  election  and  re-election,  it  ought  to  be  manifest  that  this  officer  should  not 
be  elected  by  the  people.  I  take  it  that  very  few  men  capable  of  performing  the  duties 
of  this  office  will  accept  this  positon  for  one  term,  would  give  up  their  business  or  their 
professional  duties  to  accept  this  office  for  the  small  salary  involved^  if  they  could  not 
look  forward  to  re-election  to  that  office.  It  is  evident  to  my  mind  that  you  will  not  get 
a  proper  and  desirable  person  to  fill  that  office  for  the  first  term,  if  he  knew  that  he 
would  have  to  spend  a  large  portion  of  his  income,  made  during  the  first  year,  in  order 
to  be  elected  to  a  second  term.  I  have  heard  from  members  of  this  committee,  although 
not  upon  the  floor  of  this  Convention,  that  the  members  of  this  Executive  Committee 
have  passed  lightly  over  this  matter,  much  more  lightly  than  I  feel  they  ought  to  have 
done.  I  have  heard  it  asserted  that  this  is  a  "  tub  thrown  to  the  whale;"  that  they  have 
declined  to  provide  for  the  election  of  other  officers  of  this  State  by  the  people,  that  they 
have  deprived  the  people  of  the  right  to  elect  their  judges^  and  I  agreed  with  them: 
That  they  have  denied  to  the  people  the  right  to  elect  their  auditors  of  public  accounts. 
They  have  not  had  the  right  to  elect  the  Register  of  the  Land  Office,  the  Superintendent 
of  Printing,  or  perhaps  the  Commissioner  of  Revenue,  and  that  it  v/as  now  necessary  the 
people  should  be  appeased,  and  so  here  is  an  insignificant  officer,  and  we  will  throw  his 
office  to  the  people  for  election,  as  a  sop,  a  "  tub  to  the  whale."  I  say^  gentlemen,  that 
I  am  constrained  to  believe,  in  view  of  such  assertions  as  these,  that  this  matter  has 
been  passed  over  more  lightly  than  the  importance  of  the  office  would  seem  to  justify 
or  require. 

I  feel,  Mr.  President,  that  I  have  at  least  performed  my  duty  in  this  matter.  I 
feel  that  I  have  spoken  only  in  the  interest  of  the  State  of  Virginia.  I  want  to  assure 
this  Convention  that  I  have  no  reference  to  any  individual,  either  to  the  present  incum- 
bent or  any  future  aspirant  to  this  positon.  I  believe  this  to  be  a  most  important  office. 
I  believe  this  is  not  the  "  tub  "  which  should  be  thrown  to  the  whale.  I  believe  that  this 
officer  should  be  elected  by  that  body  which  has  the  immediate  supervision  over  him 
and  under  whose  laws  he  acts  directly.  He  is  not  brought  in  contact  with  the  people. 
He  will  be  at  a  disadvantage  in  making  his  campaign  along  with  the  other  aspirants  for 
offices  in  this  State.  He  is  not  brought  into  contact  v/ith  the  people  of  the  State.  They 
come  into  contact  with  the  Governor.  They  come  into  contact  with  the  treasurer  and 
other  officers,  but  his  work,  so  far  as  the  people  are  concerned,  is  done  more  largely 
through  the  mail.  He  is  answerable  to  the  Legislature  for  his  conduct  of  his  office  and 
for  these  reasons  there  can  be  no  reason  for  his  election  by  the  people.  I  say  that  I 
feel  I  have  done  my  duty  in  showing  in  this  manner  which  has  been  unsatisfactory  to 
myself  and  I  fear  also  to  you,  the  great  importance  of  this  officer,  and  the  necessity  for 
his  election  by  the  Legislature  rather  than  by  the  people.  I  leave  the  question  for  your 
determination. 

The  President:  The  question  is  upon  the  amendment  offered  by  the  gentleman 
from  Norfolk  county  (Mr.  Portlock). 

The  question  having  been  taken,  the  result  was  announced — ayes  21,  noes  40. 
The  amendment  was  rejected. 

The  President:  The  question  is  upon  agreeing  to  the  adoption  of  Section  12  as 
amended. 

The  section  as  amended  was  adopted. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2739 


Mr.  Cameron:    I  move  that  Section  11  be  adopted. 
The  motion  was  agreed  to. 

The  President:    The  Secretary  v;iH  read  Section  13. 

Sec.  13.  A  State  Treasurer  shall  be  elected  by  the  qualified  voters  of  the  State 
at  the  same  time  and  for  the  same  term  as  the  Governor.  His  powers  and  duties  shall 
be  prescribed  by  law. 

Mr.  William  A.  Andersen:  I  desire  to  offer  an  amendment  to  this  section  to 
which  I  invite  the  attention  of  the  committee.  I  move  that  the  following  v^ords  in 
Section  13  be  stricken  out  and  the  words  that  I  here  present  be  substituted  in  lieu 
thereof:  Strike  out  the  words  "by  the  qualified  voters  of  the  State  and  at  the  same 
time  and  for  the  same  term  as  the  Governor,"  and  insert  in  lieu  thereof  the  following: 

By  the  joint  vote  of  the  two  Houses  of  the  General  Assembly,  for  the  term  of  four 
years. 

The  effect  of  this  amendment  will  be  to  i^rovide  that  this  officer  shall  be  selected 
in  the  same  manner  in  which  the  other  principle  fiscal  officers  of  the  State  Board  of 
Public  Accounts,  in  charge  of  the  co-ordinate  departments  of  the  government,  are  to 
be  selected.  I  do  not  know  whether  the  Executive  Committee  have  committed  them- 
selves past  recall  to  the  mode  of  selecting  this  officer  as  provided  in  this  report.  I  hope 
they  have  not.  I  can  see  no  reason  why  either  of  these  officers  should  be  selected  by 
the  people.  They  are  purely  bureau  officers  requiring  certain  methodical  business 
qualifications,  of  which  the  General  Assembly  will  be  far  more  competent  to  judge  than 
the  qualified  voters  of  the  people  of  the  State.  To  require  that  the  Treasurer  of  the 
Commonwealth  should  be  chosen  as  a  political  officer  by  popular  vote,  would  be  to 
throw  his  office,  which  is  purely  an  administrative  office  into  the  vortex  of  party  politics, 
an^  to  impose  a  burden  upon  the  income  to  be  derived  from  the  office  w^hich  many  men 
who  would  take  the  place,  would  not  be  willing  to  assume.  It  will  be  apt  to  give  us, 
for  this  position,  a  politician  instead  of  a  capable  business  man. 

Mr.  President,  I  am  as  much  in  favor  of  popular  government  as  any  member  of 
this  Convention.  I  am  as  much  opposed  to  restricting  the  legitimate  exercise  of  the 
powers  of  government  by  the  people,  which  they  can  properly  and  wisely  exercise,  as 
any  man  in  this  Convention.  I  want  to  ask  the  gentlemen  of  this  Convention  to  refiect 
for  a  moment,  and  to  answer  me  this  question;  What  government  to-day  upon  the  face 
of  this  globe  is  more  efficiently  administered  in  all  of  its  departments  than  the  govern- 
ment of  the  United  States?  Look  at  its  great  Post-office  Department,  which  is  operated 
like  clock-work,  and  which  has  proven  a  benefaction  to  the  people  of  this  country,  no 
matter  what  political  party  is  in  power.  Look  at  its  Treasury  Department  in  the  great 
government,  the  creation  of  the  brains  of  the  greatest  artificers  of  government  that 
the  world  has  produced,  and  which  statesmen^  publicists,  historians  and  jurists,  the 
world  over,  have  pointed  to  as  the  most  perfect  form  of  representative  government 
the  world  has  yet  given,  a  government  in  which  the  will  of  the  people  is  exercised  in 
all  matters  which  it  is  necessary  that  they  should  absolutely  and  directly  control,  and 
yet,  according  to  the  original  conception  of  this  government  there  is  but  one  set  of 
officers  chosen  by  the  people,  the  members  of  the  House  of  Representatives  of  the 
Congress  of  the  United  States.  To-day,  Mr.  President,  out  of  150.000  to  180,000 
officers  in  the  Department  of  the  Government  of  the  United  States,  less  than  330  are 
selected  by  the  direct  vote  of  the  people  except  the  members  of  Congress.  How  can 
you  have  a  more  satisfactory  example  of  the  success  of  representative  democracy  than 
in  the  republic  of  the  United  States  under  the  National  Constitution?  I  want  to  ask 
why  a  mere  bureau  officer  like  this  should  be  required  to  be  selected  by  a  political  con- 
vention, because  after  all  the  selection  is  made  by  the  political  convention?  I  believe 
a  better  man  for  the  place  can  be  selected  by  the  representatives  of  the  people  than  by 
the  people  at  large.    Every  argument,   Mr.  President,  and  every  consideration  and 


2740 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


every  reason  that  would  prompt  us  to  provide  for  the  appointment  of  the  Auditor  of 
Public  Accounts  by  the  General  Assembly,  or  by  appointment  by  the  Governor  subject 
to  confirmation  of  the  General  Assembly  applies  to  the  selection  of  the  Treasurer. 
These  ofiicers  will  be  at  the  head  of  co-ordinate  departments,  having  similar  duties  t& 
discharge,  each  being  a  check  upon  the  other,  and  if  one  is  to  be  selected  by  the  people 
the  other  ought  to  be  selected  by  the  people. 

I  will  take  no  more  of  the  time  of  this  Convention.  I  hope  the  gentlemen  of  the 
committee  v/ill  not  insist  upon  this  mode  of  selecting  these  officers,  and  that  it  will  be 
the  pleasure  of  the  Convention  to  decide  that  they  shall  be  selected  as  proposed  in  my 
amendment,  by  the  General  x^ssembly  in  joint  session,  and  they  shall  be  nominated  by 
the  Governor  subject  to  the  approval  of  the  General  Assembly. 

Mr.  Withers:  Mr.  President,  with  the  permission  of  the  Convention  I  would  like 
to  call  attention  for  one  moment  to  the  beauties  of  consistency.  The  Convention  will 
observe  that  this  report,  as  originally  presented,  supported  by  the  statement  of  the 
ranking  members  of  the  committee  on  the  floor  of  this  Convention,  provided  that  if  the 
Treasurer  and  the  Attorney  General  and  the  Lieutenant  Governor  were  on  the  Board  of 
Public  "Works  and  they  were  the  officers  or  the  majority  of  them  who  were  to  assess  the 
property  of  the  corporations  for  taxation,  they  should  be  elected  by  the  people. 

Since  that  unfortunate  speech  was  made  the  corporation  commission  has  been 
created,  and  this  Convention  held  the  method  of  the  election  of  these  ofiicers  in  abey- 
ance for  the  moment,  in  order  to  find  out  whether  it  was  to  be  permitted  that  the 
people  should  elect  a  corporation  commission  which  was  to  perform  the  duties  the 
Board  of  Public  Works  formerly  performed.  It  was  argued  as  a  reason,  upon  this  floor, 
and  upon  the  floor  of  the  House  of  Delegates,  where  this  Convention  was  then  in  ses- 
sion, that  these  executive  officers  of  the  government  performing  the  duties  of  the  office 
of  the  Board  of  Public  Works  were  to  be  elected  by  the  people,  and  yet  the  very  com- 
mission that  is  to  perform  the  duties  this  board  was  to  perform  is  to  be  named  by  the 
Governor  and  confirmed  by  the  General  Assembly.    That  is  consistency  No.  1. 

Let  us  see  another  thing  We  have  heard  a  eulogy  pronounced  upon  the  Executive 
Officer  of  the  United  States  Government,  and  at  the  end  of  it  a  simple  question  pricks 
the  bubble,  because  they  v^eve  not  selected  in  the  manner  that  the  amendment,  offered 
by  the  gentleman,  proposed  to  select  them. 

This  oflicer  is  elected  by  the  people  in  most  of  the  Commonwealths  of  this  Union. 
The  great  State  of  New  York  elects  its  Treasurer  by  the  vote  of  the  people.  The  bud- 
get of  New  York  will  make  the  onerous  duties  of  the  Treasurer  of  Virginia  seem  small 
in  comparison,  and  yet  the  duties  of  that  office  have  been  satisfactorily  adminstered 
under  the  elective  system.  Why  is  the  Treasurer  any  more  a  bureau  officer  than  the 
Attorney  General?  One  is  the  head  of  the  Legal  Department  of  Virginia,  and  the  other 
is  the  real  head,  although  not  actually  the  practical  head  of  the  Fiscal  Department  of 
Virginia. 

I  submit,  therefore,  in  all  seriousness,  that  we  are  in  this  position:  We  have  been 
told  by  the  gentlemen  that  if  this  officer  performs  a  certain  duty,  to  wit,  the  assessment 
of  the  property  of  corporations  for  taxation,  he  must  be  elected  by  the  people.  Imme- 
diately subsequent  thereto  we  create  a  commission  for  that  purpose,  and  say  that  it 
shall  not  be  elected  by  the  people.  The  people  are  incompetent  to  elect  anybody,  after 
the  election  is  over.  But  they  make  most  admirable  selections  before  it  is  over.  Now, 
if  my  friend,  whom  I  esteem  so  highly,  will  excuse  a  bit  of  pleasantry,  I  would  call 
attention  to  the  fact  that  the  great  old  county  of  Rockbridge  has  fared  exceedingly  well 
at  the  hands  of  the  people.  It  has  the  Attorney  General.  It  has  the  Treasurer.  It  has 
the  sergeant-at-arms  of  one  of  the  Houses  of  the  General  Assembly,  and  certain  employes 
in  the  departments  affected  by  this  very  amendment.  Now,  why,  forsooth,  should  we 
have  an  amendment  destroying  the  right  of  the  people  to  select  from  such  a  great 
county,  a  county  composed  of  great  men,  of  wise  men  and  good  men,  the  successors  to 
the  present  incumbents  of  those  offices? 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA, 


2741 


The  President:    The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Rockbridge  (Mr.  Anderson). 
The  ayes  and  noes  were  ordered  and  taken. 

Mr.  Braxton:  I  am  paired  with  the  gentleman  from  Louisia  (Mr.  Gordon).  If  he 
were  present  he  would  vote  "  nay  "  and  I  should  vote  "  yea." 

The  question  having  been  taken,  the  result  was  announced — ayes  28,  noes  30,  as 
follows: 

Ayes — Messrs.  Allen.  W.  A.  Andersen,  Ayers,  Thomas  H.  Barnes,  Bouldin,  Brown, 
Carter,  Dunaway,  Flood,  Gilmore,  James  W.  Gordon.  Hamilton,  Hancock,  Hatton. 
Hubard,  Hunton,  Claggett  B.  Jones,  Mcllwaine,  Meredith,  Orr,  Portlock,  Robertson, 
Stuart,  Tarry,  Thom,  Waddill,  Willis,  and  Wise — 28. 

Noes — Messrs.  George  K.  Anderson,  Barbour,  Blair,  Boaz,  Cameron,  C.  J.  Campbell, 
Davis.  Earman,  Eggleston,  Fletcher,  B.  T.  Gordon,  Green,  Hardy,  G.  W.  Jones,  Keezell, 
Lincoln,  Lindsay,  Miller,  Mundy,  Parks.  Pedigo,  Phillips,  Richmond,  Rives,  Summers, 
Thornton.  Turnbull,  Walter,  Withers,  and  the  President — 30. 

So  the  amendment  was  rejected. 

Mr.  Cameron:    1  move  that  the  section  be  adopted. 

The  motion  was  agreed  to. 

The  President:    The  Secretary  will  read  Section  14. 

Sec.  14.  An  Auditor  of  Public  Accounts  shall  be  elected  by  the  joint  vote  of  the 
two  Houses  of  the  General  Assembly  for  the  term  of  four  years.  His  powers  and 
duties  shall  be  prescribed  by  law. 

Mr.  Barbour:  Mr.  President,  I  move  to  strike  out  the  words  "by  the  joint  vote  of 
the  two  Houses  of  the  General  Assembly  for  the  term  of  four  years,'  and  insert  in  lieu 
thereof  the  words:  "By  the  qualified  voters  of  the  State,  for  the  same  term  as  the 
Governor." 

Mr.  Cameron:  Mr.  President,  I  am  aware  that  there  is  a  superficial  inconsistency 
in  the  report  as  submitted.  It  is  true  that  when  the  subjects  as  to  the  manner  of  the 
selection  of  these  fiscal  officers  was  before  the  committee  we  waited  to  see  what  weight 
was  given  to  the  fact  by  the  majority  of  the  committee  that  these  officers  might  consti- 
tute, in  the  future,  a  part  of  the  membership  of  the  board  charged  with  the  assessment, 
for  taxation,  of  corporate  property.  It  was  claimed  by  the  majorit3^  element  in  the 
Executive  Committee  that  if  that  should  prove  to  be  the  case,  the  majority  of  these 
officers  should  be  elected  by  the  people.  After  the  Committee  on  Corporations  and  the 
Committee  on  Taxation  and  Finance  had  reported,  and  their  reports  had  been  as  they 
now  stand  adopted  by  the  Committee  of  the  Whole,  another  meeting  of  the  Executive 
Committee  was  held,  and  the  majority  instructed  me,  as  chairman,  to  stand  by  the 
recommendations  as  made.  I  will  not  say,  because  it  matters  not  now,  what  my  indivi- 
dual positon  was  with  regard  to  the  matter  as  to  which  we  have  just  taken  a  vote.  It  is 
sufficient  to  say  that  I  felt,  in  loyalty,  bound  by  the  action  of  my  committee.  In  spite 
of  the  apparent  superficial  inconsistency  here,  I  stand  prepared  to  argue  that  there  is 
an  essential  difference  between  the  office  of  auditor  and  the  office  of  treasurer  which 
v-ould  account  for  the  difference  in  the  method  of  selection.  The  treasurer  of  the  State 
has  no  other  function  than  to  honestly  disburse  the  public  revenue.  The  Auditor  of 
Public  Accounts,  on  the  contrary,  is  the  arbiter  of  the  financial  relations  between  the 
Sta^e  and  the  accounting  officers  of  every  city,  town  and  county  in  it.  I  think  that  sug- 
gestion is  sufficient  to  gain  the  assent  of  every  rational  mind  to  the  danger  that  would 
exist  if  this  officer  was  placed  in  a  position  of  struggling,  first  for  his  nomination,  and 
then  for  election.  There  can  be  no  doubt  that  there  would  be  a  tremendous  temptation 
to  exchange  pecuniary  favor  for  political  influence  with  those  financial  officers  in  the 
different  counties  and  cities  of  the  State  who  constitute,  as  a  rule,  the  great  political 
factors  in  the  control  of  those  divisions  of  the  State.  Human  nature  is  human  nature, 
after  all,  and  a  man  holding  this  office,  knowing  that  whether  or  not  he  obtains  the 


2743  DEBATES  OF  THE  CONSTITUTIO^tal  COIsTVENTION  OF  VIEGII^IA. 

political  endorsement  he  desires  is  largely  dependent  upon  his  relations  with  the  per- 
sons holding  the  offices  of  treasurer,  sheriff,  and  commissioner  of  the  revenue  in  the 
counties,  would  be  tempted  beyond  the  power  of  the  average  man. 

I  am  in  no  condition,  Mr.  Chairman,  to  make  a  long  speech,  nor  do  I  think  it  neces- 
sary to  do  so.  I  think  the  reasons  already  given  are  cogent,  and  ought  to  be  compell- 
ing. I  request  the  Convention  to  sustain  the  report  of  the  committee,  and  vote  that  the 
Auditor  shall  be  selected  by  the  General  Assembly. 

Mr.  Hancock:  Mr.  President,  I  was  a  member  of  the  Committee  on  the  Executive 
Department.  As  stated  by  the  gentleman  from  Petersburg  (Mr.  Cameron)  the  chair- 
man of  that  committee,  there  was  great  difficulty  in  arriving  at  what  might  be  con- 
sidered consistency  in  the  matter  of  the  election  of  the  several  officers  of  this  depart- 
ment. Some  members  af  the  committee  were  in  favor  of  electing  the  Treasurer  and 
the  Auditor  by  the  General  Assembly,  provided  three  out  of  the  five  members  of  the 
Board  of  Public  Works,  which  assesses  the  taxes  on  corporations,  could  be  elected  by 
the  people.  When  it  was  decided  that  the  Board  of  Public  Works  should  be  abolished, 
then  a  majority  of  the  committee,  I  think,  favored  the  election  of  the  Treasurer  and 
Auditor  of  Public  Accounts  by  the  General  Assembly.  When  the  question  of  the  elec- 
tion of  the  Treasurer  was  before  the  Convention  a  few  minutes  ago,  I  voted  to  elect 
this  officer  by  the  General  Assembly  because  I  believe  the  financial  officers  of  the 
State  should  not  be  political  officers  and  dependent  upon  political  conventions  for  their 
positions.  I  believe  the  committee  were  nearly  unanimous  in  favor  of  the  election  of 
the  Auditor  of  Public  Accounts  by  the  General  Assembly.  The  Auditor  of  Public 
Accounts  is  the  head  of  the  fiscal  department  of  the  State,  and  manages  the  financial 
affairs  of  the  Commonwealth.  He  has  to  deal  in  a  financial  way  with  hundreds  of 
officers  and  with  numerous  corporations.  One  hundred  and  twenty  treasurers  have 
to  make  monthly  settlements  with  him.  Over  tv/O'  hundred  Commissioners  of  the 
Revenue  receive  their  instructions  from  him,  and  make  annual  reports  to  him,  besides 
other  reports  in  relation  to  license,  etc.  Without  going  into  detail  as  to  all  of  his 
many  varied  and  responsible  duties,  I  think  it  can  be  truthfully  said  that  the  duties  of 
his  office  require  of  him  more  care,  more  accuracy,  more  good  common  sense,  more 
regular  and  continuous  work  than  is  required  of  any  other  officer  connected  with  the 
State  government.  Any  one  who  frequents  his  office  will  see  at  a  glance  that  he  is 
dealing  with  the  most  complicated  machinery  of  the  whole  government,  and  that  it 
is  necessary  that  all  of  his  time,  all  his  attention  and  all  his  best  thoughts  should  be 
given  to  the  work  that  devolves  upon  him  in  his  office.  He  ought  not  to  be  placed  in 
a  position  in  which  he  might  be  tempted  to  make  combinations  with  these  120  treas- 
urers and  these  227  Commissioners  of  the  Revenue,  and  other  financial  officers,  in  order 
to  secure  his  re-election. 

The  Auditor  of  Public  Accounts  should  hold  his  office  by  tenure  from  the  General 
Assembly  of  Virginia,  and  should  not  be  looking  to  political  conventions  for  a  renomi- 
nation  or  a  re-election.  Such  a  condition  would  be  inconsistent  with  his  duties,  and 
would  make  him  an  inefficient  officer. 

Mr.  Portlock:  Would  not  the  same  argument  apply  to  the  selection  of  the  Secre- 
tary of  the  Commonwealth? 

Mr.  Plancock:  No,  sir;  the  same  argument  does  not  apply,  because  the  duties 
imposed  upon  the  Secretary  of  the  Commonwealth  can  be  performed  by  an  assistant, 
a  deputy,  or  a  clerk  in  his  office.  It  is  not  necessary  that  the  Secretary  of  the  Com- 
monwealth should  have  that  personal  supervision  of  the  affairs  of  his  office  that  is 
required  of  the  Auditor  of  Public  Accounts.  The  Auditor  of  Public  Accounts  ought  to 
be  in  his  office  personally  every  hour  that  his  office  is  open  to  the  public.  No  one  can 
tell  when  the  Auditor  will  be  called  upon  to  decide  what  is  the  proper  and  practical  con- 
struction to  be  placed  upon  one  of  the  numerous  laws  relating  to  the  revenue  with 
which  he  has  to  deal.  I  would  say  to  my  friend  from  Norfolk  conty,  that  the  office 
of  Auditor  of  Public  Accounts  and  the  office  of  Secretary  of  the  Commonwealth  are  as 


DEBATES  Ox  TEIE  COXSTITUIIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


different  as  it  is  possible  to  make  offices.  One  can  be  performed  by  a  deputy  or  clerk, 
while  tbe  other  must  be  performed  by  the  officer  himself,  who  must  personally  direct 
and  control  the  financial  machinery  of  the  State  and  be  responsible  to  the  people  for 
the  proper  management  thereof. 

I  feel  that  to  require  this  officer  to  be  elected  by  the  people  would  be  the  greatest 
blunder  this  Convention  could  make.  I  believe  in  the  election  of  officers  by  the  people. 
As  I  said  on  a  former  occasion,  the  people  elect  their  officers  in  two  ways  in  their 
individual  capacity  and  in  their  representative  capacity.  They  are  elected  as  much 
by  the  people  when  they  are  elected  by  the  Legislature  as  when  they  are  elected  at  the 
polls. 

But  when  you  come  to  the  question  of  the  finance  of  the  government,  when  you 
come  to  the  officer  who  has  charge  of  everything  relating  to  what  comes  into  the 
treasury  of  the  State,  and  of  the  management  of  all  the  monetary  details  of  the  Com- 
monvrealth.  with  everything  connected  with  the  taxes,  and  with  the  duties  that  are 
imposed  upon  financial  officers  all  over  the  State — v\hen  you  come  to  a  great  depart- 
ment like  this,  the  officer  has  no  time  to  consider  anything  except  the  very  highest  and 
best  interests  of  the  people  of  the  State — I  think,  therefore,  that  it  is  important  that  the 
Auditor  of  Public  Accounts  shall  be  elected  by  the  people  in  their  representative 
capacity,  that  is,  by  the  General  Assembly.  I  hope  therefore  the  amendment  will  be 
defeated. 

The  President:  The  question  is  upon  the  amendment  oiiered  by  the  gentleman 
from  Culpeper  (Mr.  Barbour.) 

The  ayes  and  noes  were  ordered,  and  being  taken,  the  result  was  announced — ayes. 
IS,  noes  41. 

The  amendment  was  rejected. 

Mr.  Cameron:    ]\Ir.  President,  I  move  that  Section  14.  as  amended,  be  adopted. 
The  motion  was  agreed  to. 

Sections  13,  16.  17.  and  IS  were  read  and  adopted. 

Mr.  Cameron:    I  move  that  the  article  as  a  whole  be  adopted,  and  referred  to  the 
Committee  on  Final  Revision  and  Schedules. 
The  motion  was  agreed  to  (Applause.) 

On  motion  of  Mr.  Turnbull  the  Convention  adjourned  tmtil  to-morrow.  Thursday. 
February  27,  1902,  at  10  o'clock  A.  M. 


THURSDAY,  February  27,  1S02. 

The  Convention  met  at  10  o'clock  A.  INI. 
Prayer  by  Rev.  J.  0.  Eabcock,  D.  D. 

Mr  Cameron:  I\Ir.  President,  there  was  referred  to  the  Committee  on  the  Execu- 
tive Department  a  resolution  directing  the  committee  to  report  upon  the  advisability 
of  incorporating  into  the  Constitution  a  provision  making  the  Adjutant-General  a  con- 
stitutional offxcer.  The  Committee  on  the  Executive  Department,  to  which  was  referred 
resolution  Xo.  2S7,  beg  leave  to  report  that  it  had  previously  discussed  the  subject  of 
making  the  Adjutant-General  a  constitutional  officer,  with  the  result  of  making  no 
mention  of  that  office  in  the  article  on  the  Executive  Department  which  it  submitted  to 
the  Convention. 

The  committee  novr  report  the  resolution  Xo.  2S7  back  to  the  Convention  withotit 
recommendation,  and  request  to  be  discharged  from  the  further  consideration  of  the 
subject. 

The  President:    The  question  is  on  agreeing  to  the  adoption  of  the  report  of  tSe 
Committee  on  the  Executive  Department. 
The  report  was  adopted. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


PREAMBLE  AND  BILL  OF  RIGHTS. 

Mr.  Green:  Mr.  President,  it  was  the  desire  of  the  Commitee  on  the  Preamble  and 
Bill  of  Rights  to  call  up  for  consideration  the  report  of  the  Committee  of  the  Whole  on 
their  report,  and  to  present  it  in  Convention.  Unfortunately  we  are  having  difficulty  in 
having  it  printed,  and  I  wish  to  give  that  as  an  explanation  of  the  reason  for  our  inability 
to  present  it  in  Convention.  It  will  probably  be  ready  by  midday,  so  that  we  can  pre- 
sent it  at  that  time  and  go  on  with  its  consideration.    It  is  not  yet  ready. 

Mr.  Barbour:    I  move  that  the  chair  be  vacated  until  4  o'clock. 

Mr.  Ayers:  I  move  to  amend  the  motion,  so  that  the  chair  may  be  vacated  until 
12  o'clock. 

The  amendment  was  agreed  to. 

The  President:  The  question  now  is  upon  agreeing  to  the  motion  of  the  gentleman 
from  Culpeper  as  amended. 

The  motion  as  amended  was  agreed  to,  and  the  Convention,  took  a  recess  until  12 
o'clock  meridian. 

The  Convention  reassembled  at  the  expiration  of  the  recess. 

ELECTION  OF  STATE  TREASURER. 

Mr.  William  A.  Anderson:  I  present  the  following  resolution,  which  I  ask  may  be 
referred  to  the  Commitee  on  Executive  Department: 

Resolution  to  rescind  Section  13  of  article  IV,  reported  by  the  Committee  on  the 
Executive  Department  as  amended  and  adopted  by  the  Convention  on  the  26th  day  of 
February,  1902,  and  to  substitute  a  new  section  therefoT. 

Resolved,  That  Section  13  of  Article  IV,  relating  to  the  Executive  Department, 
adopted  by  the  Convention  on  the  26th  of  February,  1902,  be  rescinded  and  the  following 
section  be  adopted  in  lieu  thereof: 

Sec.  13.  A  State  Treasurer  shall  be  elected  by  the  joint  vote  of  the  two  houses 
of  the  General  Assembly  for  the  term  of  four  years. 

Mr.  Withers:  Mr.  President,  I  rise  to  a  parliamentary  inquiry.  Can  a  resolution 
be  referred  to  a  committee  which  has  reported  fully,  which  report  has  been  adopted  by 
the  Convention  sitting  in  Committee  of  the  Whole,  and  then  referred  to  and  adopted  by 
the  Convention  itself,  with  amendments,  and  by  the  Convention  referred  to  the  Com- 
mittee on  Final  Revision,  without  taking  from  the  Committee  on  Final  Revision  the 
entire  executive  report? 

The  President:  The  Chair  is  of  opinion  that  a  resolution  to  rescind  any  action 
heretofore  taken  by  the  Convention  is  in  order.  At  any  rate,  it  is  not  necessary  to  de- 
cide that  question  now,  and  under  the  circumstances  the  Chair  thinks  the  resolution 
should  go  to  the  Committee  on  the  Executive  Department.  If  the  gentleman  will  refer 
to  the  rules  he  will  find  that  a  resolution  to  reconsider  or  rescind  is  in  order.  Part  of 
that  resolution  proposes  to  rescind  the  action  taken  yesterday  by  the  Convention,  and 
the  Chair  would  not  undertake  to  hold  now  that  it  is  not  in  order. 

The  Chair  begs  the  Convention  to  bear  in  mind  he  only  decides  now  that  the 
motion  to  rescind  is  in  order,  provided  it  passes  through  the  regular  stages.  He  does 
not  hold,  and  has  not  heretofore  held,  that  a  motion  to  reinstate  into  the  ordinance 
what  has  been  deliberately  stricken  out  by  the  Convention,  as  to  which  a  motion  to 
reconsider  has  been  made  and  voted  down,  would  be  in  order.  That  is  a  different 
question. 

The  Chair  overrules  the  point  of  order  and  refers  the  resolution  to  the  Committee 
on  the  Executive  Department.  (Applause.) 

Mr.  Portlock:  I  desire  to  give  notice  now  that  I  will  offer  a  resolution  similar 
to  that  offered  by  the  gentleman  from  Rockbridge,  with  reference  to  the  office  of  the 
Secretary  of  the  Commonwealth.    I  will  submit  it  in  writing. 


DEBATES  OE  THE  COXSTITETIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


PREAMBLE  AND  BILL  OF  RIGHTS. 

On  motion  of  Mr.  Green  the  Convention  took  up  the  report  of  the  Committee  on  the 
Preamble  and  Bill  of  Rights. 

The  President:    The  Secretary  will  read  Section  1. 

Sec.  1.  Every  householder  or  head  of  a  family  shall  be  entitled,  in  addition  to  the 
articles  now  exempt  from  levy  or  distress  for  rent,  to  hold  exempt  from  levy,  seizure, 
garnishment,  or  sale  under  any  execution,  order  or  other  process  issued  or  any  demand 
for  a  debt  contracted  since  the  26th  day  of  June,  1870,  his  real  and  personal  property, 
or  either,  including  money  and  debts  due  him.  to  the  value  of  not  exceeding  tvo  thousand 
dollars,  to  be  selected  by  him;  provided,  that  such  exemptions  shall  not  extend  to  any 
execution,  order,  or  other  process  issued  on  any  demand  in  the  following  cases. 

Mr.  James  W.  Gordon:  I  move  to  amend  Section  1,  in  line  8,  by  substituting  the 
word    one  "  for  the  word  "  two    before  the  word  '-thousand." 

The  ayes  and  noes  were  ordered,  and  being  taken,  the  result  was  annoimced — ayes 
21,  noes  89,  as  follows: 

Ayes — Messrs.  Barbour,  Chapman,  Cobb,  Earman,  James  W.  Gordon,  Gwyn.  Ham- 
ilton. Hardy.  Hatton,  Claggett  B.  Jones,  IMeredith.  Moncure,  :\Iundy,  Orr,  Pollard, 
Portlock,  Robertson.  Stuart.  Turnbull,  Walter,  and  Willis — 21. 

Noes — T^Iessrs.  Allen,  George  K.  Anderson,  Ayers,  Manly  H.  Barnes,  Thomas  H. 
Barnes.  Braxton,  Brown,  C.  J.  Campbell,  Carter,  Davis,  Dunaway,  Eggleston,  Epes, 
Fairfax,  Garnett.  Gilmore,  Green,  Gregory,  Hancock,  Harrison,  Ingram,  G.  W.  Jones, 
Lindsay,  Mcllwaine,  Miller,  R.  Walton  Moore.  Parks,  Pedigo.  Richmond.  Rives,  Summers, 
Tarry.  Thom.  Thornton.  Waddill.  Watson,  Withers,  Wysor,  and  the  President — 39. 

The  amendment  was  rejected. 

Mr.  Robertson:  I  desire  to  offer  an  amendment  by  adding  to  this  section  a  sub- 
section to  be  numbered  7;  by  adding  the  words: 

For  any  debt  or  demand  incurred  prior  to  the  filling  of  the  claim  for  such  exemption. 

Mr.  President,  this  amendment  is  offered  in  pursuance  of  a  resolution  that  I  pre- 
sented to  this  Convention  early  in  the  session  of  the  Convention  accompanied  by  peti- 
tions signed  by  every  board  of  trade  or  similar  board  in  the  State  of  Virginia.  The 
Chamber  of  Commerce  of  the  city  of  Richmond,  and  of  other  cities  in  this  Common- 
wealth, sent  petitions  here  on  behalf  of  the  business  men,  merchants  and  manufac- 
turers of  this  State,  requesting  this  Convention  to  make  such  changes  in  the  homestead 
law  as  would  protect  the  retail  traders  of  this  Commonwealth,  who  deal  with  the  people 
claiming  this  homestead  exemption.  I  submit  to  this  Convention  that  the  homestead 
law  in  Virginia,  while  on  its  face  it  purports  to  be  a  protection  to  the  families  of  poor 
people,  has  been  used  as  an  engine  of  fraud  to  cover  up  the  property  of  people  in  failing 
circumstances,  and  has  not  accomplished  the  object  for  which  its  framers  originally 
intended  it. 

These  merchants  claim  that  they  either  have  to  refuse  credit  to  people  on  these  open 
running  accounts,  or  they  are  put  in  the  position  of  being  beaten  out  of  their  debts 
against  people,  when  they  are  in  failing  circumstances,  by  the  homestead  exemption 
being  claimed.  It  is  a  well-known  fact  that  where  a  man  goes  to  a  bank  to  borrow 
money  and  gives  a  note,  or  where  he  gives  a  bond,  or  anything  of  that  kind,  the  home- 
stead waiver  of  exemption  is  always  put  in  that  note,  and  people  of  that  kind  are  pro- 
tected. But  w^hen  a  man  goes  to  a  store  for  the  purpose  of  buying  groceries  and  the 
necessaries  of  life,  it  is  the  universal  custom  not  to  require  a  waiver  of  the  homestead. . 

Gentlemen  may  say,  and  it  was  argued  in  committee,  that  everybody  knows  what 
the  law  is,  and  they  have  a  right  to  demand  a  waiver  of  the  homestead.  That  is  true, 
but  we  all  know,  as  a  matter  of  fact,  that  that  is  not  done,  and  that  these  retail  mer- 
173— Const.  Deb. 


2746 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


chants  would  be  seriously  injured  if  they  demanded  of  a  man  that  he  should  sign  a 
Tfaper  waiving  his  homestead  as  to  open  accounts  of  a  retail  nature,  which  every  one 
of  us  has  to  contract  with  these  people. 

The  practical  working  of  this  homestead  law  has  been  that  when  a  man  fails  and 
hi>:      ...      ...  Lujuiit  to  be  wound  up  and  his  property  is  turned  in  for  the  purpose  of 

paying  off  his  debts,  the  Bankers  and  other  people  who  have  given  him  credit  on  paper 
secuniy  in  the  nature  of  notes  and  bonds,  get  the  benefit  of  the  waiver  of  the  home 
stead,  and  the  other  people  do  not  get  the  benefit  of  it.  It  is  the  rarest  thing  that  a 
man's  family  ever  does  get  the  benefit  of  his  homestead  exemption.  The  result  is  that 
a  preference  is  created  between  creditors  of  one  class  and  creditors  of  another  class, 
and  in  nine^cases  out  of  ten  a  man's  family  has  no  benefit  from  it  whatsoever. 

I  respectfully  submit  that  the  result  of  that  is  to  create  fraudulent  preferences  in 
favor  of  one  class  of  people  over  another.  It  is  a  serious  inconvenience,  a  serious 
injustice,  to  a  large  class  of  our  merchants  in  the  State  of  Virginia,  I  do  think  that  when 
a  respectable  body  of  men  like  that  come  before  the  Convention  and  ask  the  Conven- 
tion to  do  something  to  protect  their  interests,  certainly  the  request  ought  to  be  con- 
sidered, and  not  turned  down  as  a  matter  of  course. 

The  main  argument  that  I  heard  made  against  this  matter  was  that  it  would  be 
unpopular  with  certain  people  in  this  Commonwealth,  that  it  would  endanger  the 
adoption  of  this  Constitution.  -In  the  first  place,  I  do  not  believe  that  is  true.  I  do 
not  believe  there  is  any  body  of  men  in  the  Commonwealth  organized  together  for  the 
purpose  of  beating  their  creditors  out  of  the  just  debts  they  owe  them.  People  claim 
the  benefit  of  this  homestead  exemption  when  they  get  into  failing  circumstances. 
Most  men  are  hopeful,  and  do  not  expect  to  get  into  such  circumstances  as  that,  and 
there  is  no  organized  band  of  people  in  the  Commonwealth  who  would  undertake  to 
fight  this  Constitution  if  we  do  justice  about  this  matter.  They  are  not  organized. 
You  might  just  as  well  say  that  if  v/e  provide  here  for  the  proper  enforcement  of  the 
criminal  laws  of  the  Commonwealth,  the  criminals  of  the  Commonwealth  would  vote 
against  the  Constitution  in  order  to  prevent  those  laws  being  adopted. 

I  am  aware  of  the  fact  that  some  demagogues,  some  people  who  want  to  defeat 
this  Constitution,  may  go  around  amongst  the  people  and  undertake  to  say  we  are 
depriving  the  poor  man  of  his  exemption,  but  I  do  not  believe  in  listening  to  that  kind 
of  talk.  We  must  take  some  risks.  We  must  submit  to  the  people  a  Constitution  that 
we  are  willing  to  defend  on  the  grounds  of  reason  and  right,  and  not  adopt  a  Constitu- 
tion simply  because  we  think  it  will  be  popular. 

I  respectfully  submut  that  if  we  put  this  provision  in  here  it  can  do  no  harm  to 
anybody.  I.  for  one,  do  not  believe  this  hom_estead  law  has  done  a.ny  good,  in  99  cases 
out  of  lOO.  in  some  cases  where  a  man  dies,  I  admit  his  wife  and  children  have 
received  the  benefit  of  it.  I  believe  every  lawyer  in  this  body  who  has  had  any  large 
practice  in  Virginia  will  bear  m.e  out  in  saying  that  the  homestead  law  as  it  stands  has 
proved  to  be  a  perfect  failure,  so  far  as  concerns  protecting  the  rights  of  a  man's 
family  and  keeping  them  from  being  put  into  the  poor-house,  but,  on  the  contrary,  it 
has  been  used  as  an  engine  of  fraud  and  oppression,  and  has  given  one  class  a  prefer- 
ence over  another  under  the  law  which  allows  people  to  waive  the  exemption. 

It  seems  to  me  the  opinion  of  these  gentlemen  in  the  Chamber  of  Commerce  in 
Richmond,  the  merchants  in  Danville,  Charlottesville,  Roanoke,  Petersburg  and  Nor- 
folk, m.en  who  have  seen  the  practical  workings  of  this  thing,  ought  to  have  some 
weight.  Although  I  was  overwhelmiingly  turned  down  by  the  committee  that  had  this 
matter  in  charge,  I  considered  it  my  duty  to  present  it  here  to  the  Convention  and  let 
them  do  vfhat  they  think  proper  with  it. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Roanoke  (Mr.  Robertson.) 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes  2G,  noes  36. 
The  amendm.ent  was  rejected. 


DEBATES  OF  THE  CONSTITUTIONAL  COXVEXTIOX  OE  VIRGINIA. 


2747 


The  President:    If  there  are  no  further  amendments  to  Section  1  the  question  is 
on  agreeing  to  that  section  as  read. 
Section  1  was  adopted. 

The  President:    The  Secretary  will  read  Section  2. 

Sec.  2.  The  said  exemption  shall  not  be  claimed  or  held  in  a  shifting  stock  of  mer- 
chandise. 

Mr.  Meredith:  I  offer,  as  an  amendment,  to  be  added  to  Section  2,  the  following, 
language: 

Nor  as  to  a  debt  created  in  the  purchase  of  merchandise  by  a  merchant  or  manu- 
facturer for  sale  or  use  in  carrying  on  a  store  or  manufactory. 

That  allows,  gentlemen,  the  protection  to  be  given  to  these  merchants  which  they 
are  asking  for.  We  do  not  touch  any  indivdual  who  simply  wants  to  claim  exemption 
against  a  debt,  and  who  does  not  carry  on  trade,  but  we  all  know  that  the  breath  of 
trade  is  credit,  and  this  homestead  exemption  has  simply  tended  to  destroy  the  credit 
of  the  honest  merchant. 

Mr.  Green:  Individually  I  am  willing  to  accept  that.  I  cannot  speak  for  the  com- 
mittee, but  I  am  personally  willing  to  accept  the  amendment. 

Mr.  Meredith:  If  you  will  give  us  that,  gentlemen,  we  will  have  the  protection  that 
the  wholesale  merchants  desire,  and  at  the  same  time  you  will  allow  men  not  in  trade  to 
claim  the  homestead  exemption  if  they  wish  it.  It  is  simply  a  matter  betw^een  mer- 
chant and  mei'chant.  It  is  for  the  benefit  of  trade,  and  v/e  ask  for  the  protection  of  the 
merchants  of  this  State  that  you  will  adopt  this  amendment. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Richmond. 

The  ayes  and  noes  v/ere  ordered,  and  being  taken,  resulted — ayes  27,  noes  31. 
The  amendment  was  rejected. 

Mr.  James  W.  Gordon:    I  offer  the  following  as  an  amendment  to  Section  2: 

Amend  Section  2  by  adding  thereto  the  words  "  nor  in  any  properly  the  conveyance 
of  which  by  the  homestead  claimant  has  been  set  aside  on  the  ground  ot  fraud  or  want 
of  consideration." 

Mr.  President,  the  Convention  has  refused  to  amend  these  two  sections  in  any  par- 
tjicular,  so  lar.  They  have  retained  the  $2,000  exemption  and  have  allowed  it  to  be 
claimed  just  as  it  has  been  done  heretofore.  I  ask  that  the  Convention  will  now  stamp 
with  disapproval  the  practice  which  has  been  so  common  in  this  Commonwealth  in  the 
last  few  years  of  men  making  voluntary  and  fraudalent  conveyances  of  their  property 
and  then  coming  in  right  behind  the  decree  or  judgment  of  a  court  and  claiming  that 
property  as  exempt — not  only  claiming  it  as  exempt  against  their  creditors,  but  claiming 
it  as  exempt  against  their  grantees.  I  ask  that  the  Convention  will  do  this  simple  act 
of  justice  and  not  send  this  homestead  exemption  out  through  the  Commonwealth  and 
say  "  AVe  will  not  only  give  you  $2,000  of  exemption,  but  we  will  place  a  premium  upon 
the  fraudulent  conveyance  of  your  property." 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Richmond  (Mr.  Gordon).  , 

The  ayes  and  noes  were  ordered,  and  being  taken  resulted — ayes  30,  noes  29,  as 
follows: 

Ayes — Messrs.  Avers,  Barbour,  Thomas  H.  Barnes.  Braxton.  Brown,  Chapman, 
Earman,  Fletcher,  James  W.  Gordon,  Gwyn,  Hamilton,  Hardy,  Hatton,  Claggett  B. 
Jones.  Lincoln,  Mcllwaine,  Meredith,  Moncure,  Mundy,  Orr.  Pollard,  Portlock,  Robert- 
son, Tarry,  Thornton,  Turnbull,  Walter,  Willis,  Wj'^sor.  the  President — 30. 

Noes — Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson.  Manly  H.  Barnes,  C.  J. 


2748 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Campbell,  Carter,  Cobb,  Davis,  Dunaway,  Eggleston,  Epes,  Garnett,  Gilmore,  Green, 
Gregory,  Hancock,  Ingram,  G.  W.  Jones,  Lindsay,  Miller,  Parks,  Pedigo,  Phillips,  Rich- 
mond, Rives,  Summers,  Waddill,  Watson,  Withers — 29. 

The  amendment  was  agreed  to. 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  Section  2  as 
amended. 

Section  2  as  amended  was  adopted. 

The  President:    The  Secretary  will  read  Section  3, 

Sections  3,  4,  5  and  6  were  read  and  adopted. 

The  President:    The  Secretary  will  read  the  next  article. 

"  ARTICLE  

Sale  of  Intoxicating  Liquors. 

Section  1.  First,  No  intoxicating  liquors  shall  be  sold  in  this  State  without  a 
license  therefor  first  obtained. 

Mr.  Barbour:  Mr.  President,  the  Convention  will  observe  that  this  first  section  is 
a  part  of  a  scheme  the  gist  of  which  is  in  the  second  section.  I  therefore,  ask  that  the 
first  section  be  passed  temporarily  so  that  we  may  take  up  the  second  section. 

The  President:    It  will  be  so  ordered  without  objection. 

The  President:    The  Secretary  will  read  the  second  section. 

Second.  The  Legislature  shall  have  the  full  power  of  enacting  local  option  or 
dispensary  laws,  or  any  other  laws  controlling,  regulating,  or  prohibiting  the  manu- 
facture or  sale  of  intoxicating  liquors. 

Mr.  Barbour:  Mr,  President,  I  move  to  substitute  for  that  section  the  section  as 
originally  reported  by  the  committee  except  the  words  "  who  actually  voted  in  the  last 
preceding  regular  election  in  such  town  or  in  such  precinct,"  in  lines  10  to  12.  That 
will  leave  the  section  then  in  the  exact  condition  in  which  it  was  amended  by  the  Com- 
mittee of  the  Whole,  so  that  a  majority  of  the  petitioners  for  these  licenses  would  have 
to  be  signed  by  the  registered  voters  in  the  precinct  and  not  consigned  to  those  who 
actually  voted  in  the  last  preceding  election. 

Before  the  vote  is  taken  on  this  section,  Mr.  President,  I  wish  to  call  the  attention 
of  the  Convention  to  the  furher  fact  that  the  committee  have  agreed  upon  a  further 
section  as  Section  4,  whicn  directs  that  this  article  shall  not  go  into  effect  until  it  has 
been  submitted  to  a  vote  of  the  people  separate  from  the  vote  on  the  main  portion  of 
the  Constitution,  so  as  to  present  this  single  question  directly  to  the  voters  of  those 
portions  of  the  State  which  are  effected  by  it.  I  make  that  statement  so  that  there  may 
be  no  misunderstanding  on  that  score  on  the  part  of  the  members  of  the  Convention. 

The  President:  The  Secretary  will  read  the  amendment  proposed  by  the  gentle- 
man from  Culpeper  (Mr.  Barbour). 

In  lieu  of  the  substitute  adopted  in  the  Committee  of  the  Whole,  insert  the  follow- 
ing language: 

No  license  to  sell  intoxicating  liquors  in  quantities  of  less  than  one  gallon  or  to  be 
drunk  at  the  place  where  sold  shall  be  authorized  or  granted  in  any  town  or  county  of 
this  State  for  a  period  of  more  than  twelve  months,  nor  without  the  written  request 
of  a  majority  in  number  of  the  legally  qualified  and  registered  voters  resident  in  the 
town  or  in  the  precinct  of  the  county  wherein  such  liquors  are  intended  to  be  sold. 

The  President:  The  question  is  on  the  amendment  offered  by  the  gentleman  from 
Culpeper. 

The  question  having  been  taken,  the  result  was  announced — ayes  24,  noes  36,  as 
follows: 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


2749 


Ayes— Messrs.  Ayers,  Barbour,  Chapman,  Cobb,  Dunaway,  Earman,  Eggleston,  Epes, 
Green,  Gregory,  Gwyn,  Hardy,  G.  W.  Jones,  Lincoln,  Lindsay,  Mellwaine,  Mundy,  Orr, 
Pedigo  Richmond,  Summers,  Turnbull,  Watson,  the  President — 24. 

Noes— Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson,  M.  H.  Barnes,  Thomas 
H.  Barnes,  Braxton,  Brown,  Carter,  Davis,  Fairfax,  Fletcher,  Gilmore,  Hancock,  Harri- 
son, Hatton,  Ingram,  Claggett  B.  Jones,  Keezell,  Meredith,  Miller,  Moncure,  R.  Walton 
Moore,  Parks,  Phillips,  Pollard,  Portlock,  Rives,  Robertson,  Stuart,  Tarry,  Thorn,  Wad- 
dill,  Walter,  Willis,  Withers,  Wysor— 36. 

The  following  pairs  were  announced: 

Mr.  Garnett  with  Mr.  Lovell;  Mr.  Thornton  with  Mr.  Cameron;  Mr.  Vincent  with 
Mr.  Hamilton;  Mr.  Stebbins  with  Mr.  Wescott. 

The  first  named  w^ould  have  voted  in  the  afiirmative. 
The  amendment  was  rejected. 

Mr.  Green:  I  now  move  to  strike  out  the  whole  article  in  reference  to  the  sale  of 
intoxicating  liquors.  That  article,  as  it  now  stands,  reads:  "No  intoxicating  liquors 
shall  be  sold  in  this  State  without  a  license  therefor  first  obtained." 

The  Legislature  has  already  full  power  to  enact  laws  of  this  kind.  It  would  be 
an  anomaly  to  put  into  the  Constitution  a  section  giving  the  Legislature  the  power  to  do 
a  particular  thing.  If  the  Legislature  needed  that  power  the  proper  place  to  give  the 
power  to  pass  such  laws  would  be  in  the  Legislative  section,  where  all  of  its  other  powers 
are  conferred  upon  it.  It  has  full  power  in  this  regard  and  does  not  need  this  Consti- 
tutional provision.  I  hope,  therefore,  the  whole  provision  in  regard  to  the  sale  of  in- 
toxicating liquors  v/ill  be  stricken  out. 

Mr.  Summers:  I  have  two  motions  to  make.  One  with  regard  to  this  first  section 
and  one  with  regard  to  the  second.  As  regards  this  second  section  I  am  trying  to  save 
this  country  as  far  as  I  can,  and  in  order  to  get  the  right  start,  I  offer  this: 

No  intoxicating  liquors  shall  be  sold  in  this  State  except  in  sealed  packages,  nor 
drunk  where  sold. 

Mr.  Dunaway:  I  desire  to  offer  a  substitute  to  the  amendment  offered  by  the  gen- 
tleman from  Washington  (-Mr.  Summers).  It  is  not  that  I  am  so  much  opposed  to  that, 
Mr.  Chairman,  but  I  do  not  believe  that  it  can  possibly  be  adopted  by  this  Convention. 
I  offer  one  that  I  think  will  stand  a  better  chance  of  being  adopted,  although  I  have  not 
very  much  hope  for  it.  I  ask  that  the  attention  of  the  members  of  the  Convention 
while  I  read  it: 

The  General  Assembly  shall,  in  the  year  1905  submit  to  the  qualified  voters  of  the 
State  the  question,  '  Shall  intoxicating  liquors  be  sold  in  the  State  to  be  drunk  where 
sold?'  If  a  majority  of  the  voters  in  such  election  shall  be  cast  in  the  negative,  then 
no  bar-room  license  shall  thereafter  be  granted  in  the  State. 

Upon  that  substitute  I  wish  to  make  a  few  explanatory  remarks.  I  do  feel,  Mr. 
President,  that  this  Convention  owes  something,  that  it  owes  a  great  deal  to  the  people 
of  the  State  who  have  multiplied  their  petitions  to  this  Convention  for  some  relief  in 
regard  to  this  matter.  The  original  proposition  has  been  voted  down  and  about  that  I 
do  not  wish  to  say  anything.  I  would  not  revive  that  question.  The  question  raised 
here  is  shall  the  people  of  the  Commonwealth  have  an  opportunity  to  declare  their  will 
upon  this  question?  It  is  not  whether  we  will  declare  the  will  of  the  State  in  its 
organic  law,  but  whether  we  will  give  the  people  of  the  State  the  opportunity  of  voting 
on  this  question.  If  this  question  to  be  submitted  to  the  people  should  be  voted  on  in 
the  negative  it  will  not  at  all  interfere  with  the  manufacture  of  intoxicating  liquors  in 
this  State.  It  will  not  interfere  with  the  sales  of  intoxicating  liquors  in  the  State  in  a 
retail  or  wholesale  way,  but  if  the  majority  of  the  voters  shall  vote  no  upon  this  propo- 
sition, then  it  simply  breaks  up  the  bar-rooms.  It  is  simply  a  question  as  to  whether 
intoxicating  liquors  shall  be  drunk  at  the  place  where  sold,  and  that  is  all.    I  think  we 


2750 


DEBATES  OF  THE  COXSTITUTIOIs'AL  CONVEIsrTIOlsT  OF  VIRGII^IA. 


ought  to  give  the  people  the  right  to  vote  on  this  subject  for  themselves.  If  at  such  an 
election  the  majority  of  the  people  shall  say  they  are  in  favor  of  the  bar-rooms  then  the 
will  of  the  people  must  prevail.  On  the  other  hand,  if  the  majority  of  the  people  of  the 
CommonAvealth  want  to  abolish  bar-rooms  then  they  have  a  right  to  do  so.  A  sufficient 
time  is  given  between  the  present  and  the  year  1905  for  canvassing  the  State,  for  in- 
formation to  be  given  to  the  people  by  the  press  and  by  addresses  before  them.  No- 
l)ody  will  be  taken  by  surprise. 

I  hope  it  will  De  the  pleasure  of  the  Convention  to  put  this  into  the  Constitution  as 
a  concession  to  the  petitions  that  have  been  presented  here.  It  seems  to  me  to  be  a 
moderate  request  to  make  the  members  of  the  Convention,  and  I  ask  them  to  support 
this  resolution. 

The  President:  The  question  is  upon  agreeing  to  the  amendment  of  the  gentleman 
from  Lancaster. 

Mr.  Garnett:  I  am  paired  with  the  gentleman  from  Madison  (Mr.  Lovell.  If  he 
were  present  he  would  vote  nay  and  I  should  vote  yea. 

The  question  having  been  taken,  the  result  was  announced — ayes  32,  noes  31,  as 
follows: 

Ayes — Messrs.  George  K.  Anderson,  Ayers,  Barbour,  Manly  H.  Barnes,  Chapman. 
Cobb,  Dunaway,  Earman,  Eggieston,  Epes,  Fletcher,  James  W.  Gordon,  Green'  Gregory- 
Gwyn,  Hardy,  Claggett  B.  Jones,  G.  W.  Jones,  Lincoln,  Mcllwaine,  Moncure,  Mundy, 
Orr,  Pedigo.  Phillips,  Pollard,  Richmond,  Summers,  Turnbull,  Waddill,  Watson,  and  the 
President— 32. 

Noes — Messrs.  Allen,  W.  A.  Anderson,  Thomas  PI.  Barnes,  Boaz,  Braxton,  Brown, 
Carter,  Davis,  Fairfax,  Gilmore,  Hamilton,  Hancock,  Harrison,  Hatton,  Ingram.  Lindsay, 
Meredith,  Miller,  R.  Walton  Moore,  Parks,  Portlock,  Rives,  Robertson,  Stuart,  Tarry, 
Thom,  Thornton,  Walter,  Willis,  Withers,  and  Wysor — 31. 

The  amendment  was  agreed  to, 

Mr.  Thomas  H.  Barnes:  Mr.  President,  I  move  the  chair  be  vacated  until  4  o'clock. 
The  motion  was  agreed  to  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTER  RECESS. 

s 

At  the  expiration  of  the  recess  the  Convention  reassembled. 

The  President:  The  question  now  pending  is  on  agreeing  to  the  amendment  in  the 
Tiature  of  a  substitute,  offered  by  the  gentleman  from  Lancaster  to  the  original  amend- 
ment offered  by  ihe  gentleman  from  Washington. 

The  question  having  been  taken,  the  result  was  announced — ayes,  18;  noes,  33,  as 
follows : 

Ayes — Messrs.  George  K.  Anderson,  Dunaway,  Earman,  James  W.  Gordon.  Gwyn, 
Hardy,  G.  W.  Jones.  Moncure,  Mundy,  Orr,  Pedigo,  Phillips.  Pollard,  Richmond,  Sum- 
mers, Turnbull.  Waddill,  and  the  President — 18. 

Noes — Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Barbour,  Thomas  H.  Barnes.  Boaz, 
Braxton,  Brown,  Clarence  J.  Campbell.  Carter,  Davis,  Fairfax,  Fletcher,  Gilmore.  Hamil- 
ton, Hancock,  Harrison,  Hatton,  Ingram,  Lindsay,  Meredith,  Miller,  R.  Walton  Moore, 
Portlock,  Rives,  Robertson,  Stuart,  Thom,  Walter,  Watson,  Willis,  Wise,  and  Withers — 33. 

The  amendment  was  rejected. 

Mr.  Summers:    I  have  an  amendment  I  want  to  offer. 
Insert  at  the  end  of  the  section  these  words: 

No  intoxicating  liquors  shall  be  sold  in  the  State  except  in  sealed  packages,  nor 
1)8  drunk  where  sold. 

Mr.  Barbour:  I  rise  to  a  question  of  personal  privilege.  I  merely  wish  to  explain 
why  I  voted  against  the  adoption  of  this  section,  after  having  voted  to  amend  it.  After 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIMA. 


2:51 


mature  consideration  I  have  come  to  the  conclusion  that  it  is  wrong  and  that  our  action 
in  adopting  this  amendment  this  morning  -u^as  vrrong.  I  have  come  to  the  conclusion 
that  it  is  contrary  to  the  principle  of  local  self-government  in  this  matter,  vrhich  I 
think  is  the  proper  rule  for  the  settlement  of  this  Question. 

Ml.  vratson:  Mr.  President,  I  will  ask  the  indulgence  of  the  Convention  for  a 
moment.  I  find  myself  in  the  same  attitude  as  that  occupied  by  the  gentleman  from 
Culpeper  (.Mr.  Barbour).  In  the  first  instance  I  voted  to  incorporate  the  amendment 
offered  hj  me  gentleman  from  Lancaster  (Mr.  Dunav\-ay  '  as  a  part  of  the  Constitution. 
Upon  reflection  I  became  satisfied  that  it  vrould  destroy  the  right  of  each  community  to 
regulate  its  ovn  affairs  and  that  such  a  constittitional  provision  v.-ould  be  more  tmvrise 
than  the  local  option  laws  now  prevailing. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  "Washington. 

The  amendment  was  rejected. 

Mr.  Quarles:  I  wish  to  move  that  Section  1  be  stricken  otit.  I  think  it  is  some- 
what in  conflict  vrith  Section  2. 

The  question  is  on  agreeing  to  the  motion  of  the  gentleman  from  Augusta  to  strike 
out  Section  1. 

The  motion  vras  agreed  to. 

Mr.  Green:    Mr.  President.  I  now  move  to  strike  out  the  entire  article. 
The  motion  was  agreed  to. 

Mr.  Green:  I  now  move  to  reconsider  the  vote  by  which  the  entire  article  was 
stricken  out. 

Mr.  Quarles:  Mr.  President.  I  hope  the  motion  made  by  the  gentleman  from  Dan- 
ville will  carry,  and  that  the  vote  will  be  reconsidered.  Section  1,  which  is  proposed  to 
be  stricken  out.  was  proposed  by  myself.  The  reason  I  proposed  it,  was  that  I  knew 
the  constitutionality  of  a  dispensary  law  had  been  questioned,  and  inasmuch  as  this 
Convention  has  taken  the  position  that  the  Legislature  ought  to  have  full  control  of  this 
matter.  I  thought  all  doubt  should  be  removed  as  to  whether  or  not  the  Legislature  has 
the  power  to  pass  a  dispensary  law  or  any  other  law  relating  to  the  sale  of  liquor. 

Mr.  Pv.  Walton  Moore:  This  morning  I  inquired  of  some  of  the  members  of  the 
committee,  including  the  chairman,  if  any  question  seemed  to  exist  as  to  the  power  of 
the  General  Assembly  to  enact  a  dispensary  system,  unless  authorized  by  the  Constitu- 
tion. They  answered  in  the  negative.  My  friend  says  some  question  has  arisen.  Will 
he  go  a  little  more  into  detail,  and  tell  us  how  the  question  has  arisen,  and  when,  be- 
cause if  it  be  necessary,  in  order  to  bring  about  the  dispensary  system  in  the  future  if 
it  becomes  desirable  to  b'ring  it  about,  to  put  anything  in  the  Constitution  I  would  vote 
to  retain  this  provision. 

Mr.  Quarles:  I  do  not  desire  at  this  time  to  enter  into  a  discussion  of  the  legal 
aspect  of  this  matter.  I  remember  having  seen  in  the  press  some  time  ago  that  there 
was  a  case  pending  before  one  of  the  circuit  courts  of  this  State  in  which  the  constitti- 
tionality  of  such  a  law  was  involved.  My  impression  is  that  the  court  held  it  unconsti- 
tutional. I  know  further  that  when  bills  controlling  the  sale  of  liquor  have  heretofore 
been  offereo  in  the  Legislature  they  have  been  opposed  on  the  ground  that  they  were 
unconstitutional  and  I  wish  to  remove  all  questions  about  the  matter.  And  I  think  it 
fair  to  the  temperance  people  that  this  be  done. 

I  want  to  take  away  all  doubt  that  might  possibly  arise  about  the  power  of  the 
Legislature  in  enacting  laws  in  regard  to  the  sale  of  whiskey — I  want  to  deal  fairly 
with  the  temperance  people  of  this  State.  I  voted  against  putting  any  legislative  mat- 
ter into  the  Constitution  relating  to  the  sale  of  whiskey,  and  my  reason  for  doing  so  was 
that  the  Legislature  had  full  power  in  such  matters.  I  want  to  show  to  the  temperance 
people  that  we.  who  have  voted  to  keep  out  of  this  Constittition  all  legislation  with  re- 
gard to  this  matter,  are  dealing  in  good  faith  with  them.  There  is  no  reason  why  this 
provision  should  not  be  ptit  here.    What  harm  will  it  do?    Why  should  not  every  doubt 


2752  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

about  the  question  whether  or  not  the  Legislature  has  full  power  to  deal  with  this 
matter  be  removed?  It  may  do  some  good  and  I  think  it  will;  it  certainly  can  do  no 
harm.    I  think  the  Legislature  has  the  power  already,  but  I  may  be  wrong. 

I  therefore  hope  that  the  Convention  will  vote  to  reconsider  the  vote  and  retain  this 
provision  in  the  Constitution. 

The  President:  The  question  is  on  agreeing  to  the  motion  of  the  gentleman  from 
Danville,  to  reconsider. 

The  question  having  been  taken,  the  result  was  announced — ayes  32,  noes  24. 

The  motion  to  reconsider  was  agreed  to. 

The  President:  The  question  now  recurs  on  the  motion  of  the  gentleman  from 
Danville  to  strike  out  the  entire  article. 

The  question  having  been  taken,  the  result  was  announced — ayes  23,  noes  34. 
The  motion  to  strike  out  was  rejected. 

The  President:    The  question  now  recurs  on  agreeing  to  the  article. 
The  article  was  agreed  to. 

The  President:    The  Secretary  will  read  the  next  article. 

ARTICLE   . 

Future  Changes  in  the  Constitution. 

See.  1.  Any  amendment  or  amendments  to  the  Constitution  may  be  proposed  in 
the  Senate  and  House  of  Delegates,  and  if  the  same  shall  be  agreed  to  by  a  majority 
of  the  members  elected  to  each  of  the  two  houses,  such  proposed  amendment  or  amend- 
ments shall  be  entered  on  their  journals,  with  the  ayes  and  noes  taken  thereon,  and 
referred  to  the  General  Assembly  to  be  chosen  at  the  next  general  election  of  Senators 
and  members  of  the  House  of  Delegates,  and  shall  be  published  for  three  months 
previous  to  the  time  of  making  such  choice.  And  if,  in  the  General  Assembly  so  next 
chosen  as  aforesaid,  such  proposed  amendment  or  amendments  shall  be  agreed  to  by 
a  majority  of  all  the  members  elected  to  each  house,  then  it  shall  be  the  duty  of  the 
General  Assembly  to  submit  such  proposed  amendment  or  amendments  to  the  people, 
in  such  manner  and  at  such  times  as  the  General  Assembly  shall  prescribe;  and  if  the 
people  shall  approve  and  ratify  such  amendment  or  amendments  by  a  majority  of  the 
electors  qualified  to  vote  for  members  of  the  General  Assembly  voting  thereon,  such 
amendment  or  amendments  shall  become  part  of  the  Constitution. 

The  article  was  adopted. 

Mr.  Barbour.  Mr.  President,  I  now  move  to  reinsert  Section  2  as  reported  from 
the  committee.    I  will  ask  the  Secretary  to  read  it. 

Sec.  2.  At  such  time  as  the  General  Assembly  may  by  law  provide,  the  question, 
"Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?"  shall 
be  decided  by  the  electors  qualified  to  vote  for  members  of  the  General  Assembly; 
and  in  case  a  majority  of  the  electors  so  qualified,  voting  at  such  election,  shall  decide 
in  favor  of  a  convention  for  such  purpose,  the  General  Assembly,  at  its  next  session, 
shall  provide  by  law  for  the  election  of  delegates  to  such  convention. 

Mr.  R.  Walton  Moore:  Mr.  President,  I  desire  to  suggest  to  the  gentleman  from 
Culpeper  (Mr.  Barbour)  an  amendment  to  that  section  in  order  to  perfect  it  before  we 
pass  upon  it.  I  will  ask  him  if  it  does  not  occur  to  him  that  when  the  General  As- 
sembly votes  whether  or  not  to  submit  such  an  important  question,  a  majority  of  the 
members  elected  to  each  house  should  be  recorded  in  the  affirmative  on  the  passage  of 
the  law  submitting  the  question. 

Mr.  Barbour:    I  have  personally  no  objection  in  the  world  to  such  a  provision. 

Mr.  R.  Walton  Moore:  Otherwise  the  important  matter  of  submitting  to  the  peo- 
ple the  question  whether  they  shall  have  a  Constitutional  Convention  or  not  might  be 
carried  through  each  house  by  a  two-fifths  vote. 

Mr.  Barbour:  Mr.  President,  I  desire  merely  to  call  the  attention  of  the  Conven- 
tion to  the  fact  that  unless  they  have  this  provision  or  some  similar  provision  in  the 
Constitution,  every  Legislature  hereafter  elected  would  have  absolute  power  to  call  a 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTION  OF  VIRGINIA.  2753 

Constitutional  Convention  with,  unlimited  powers,  whenever  they  desired  to  do  so,  and 
without  ever  submitting  the  question  to  a  vote  of  the  people.  The  decision  to  strike 
this  article  out  was  sprung  on  the  Convention  in  Committee  of  the  Whole  the  other 
evening,  within  five  minutes  of  the  time  when,  under  the  rule,  we  had  to  take  a  vote 
on  it,  and  there  was  absolutely  no  opportunity  to  consider  it.  Since  then  I  have  given 
the  matter  careful  examination,  and  I  have  no  hesitation  in  saying,  as  the  result  of 
that  investigation,  that  unless  there  is  a  way  pointed  out  in  the  Constitution  for  calling 
a  Constitutional  Convention,  the  power  of  the  Legislature  in  that  respect  is  unlimited. 
It  is  too  large  a  power  to  be  granted  to  any  legislative  assembly  elected  for  the  ordi- 
nary purposes  of  legislation.  I  do  hope  the  Convention  will  reinsert  this  or  some 
similar  provision  which  will  regulate  this  power  and  the  exercise  of  it. 

Mr.  James  W.  Gordon:  I  offer  the  following  substitute  for  the  amendment  offered 
by  the  gentleman  from  Culpeper  (Mr.  Barbour).  It  seems  to  me  it  meets  an  objection 
that  has  been  raised  by  a  number  of  gentlemen  on  the  fxoor  of  the  Convention  as  to 
the  provision  as  it  was  reported  from  the  committee. 

The  President:    The  Secretary  will  read  the  proposed  substitute. 

At  the  general  election  in  year  1921,  and  in  every  twentieth  year  thereafter,  and 
at  such  other  time  as  the  General  Assembly  may  by  law  provide,  the  question  "  Shall 
there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?"  shall  be  decided 
by  the  electorate  qualified  to  vote  for  the  members  of  the  General  Assembly,  and  there 
shall  be  decided  at  the  same  time  and  in  the  same  manner  whether  the  proposed  Con- 
stitution shall  be  proclaimed  or  submitted  to  a  vote  of  the  people  for  their  ratification 
or  rejection.  In  case  a  majority  of  the  electors  so  qualified  voting  at  such  election  shall 
decide  in  favor  of  a  Convention  for  such  purposes,  the  General  Assembly  at  its  next 
session  shall  provide  by  law  for  the  election  of  delegates  to  such  Convention. 

Mr.  R.  Walton  Moore:  Mr.  President,  the  gentleman  from  Culpeper  (Mr.  Barbour) 
has  accepted  the  amendment  which  I  suggested  providing  for  a  majority  of  all  the 
members  elected  to  each  house,  and  he  accepts  this  further  amendment,  to  add  to  the 
section  as  he  proposes  it,  these  words,  as  an  independent  sentence:  "And  no  such 
Convention  shall  otherwise  be  called,"  so  as  to  limit  the  calling  of  a  Convention  to  a 
vote  upon  the  question  submitted  by  the  General  Assembly  to  the  people,  the  question 
being  whether  a  Convention  shall  be  had  or  not  for  the  purpose  of  revising  and  amend- 
ing the  Constitution. 

Mr.  Braxton:  Mr.  President,  the  gentleman  from  Culpeper  (Mr.  Barbour)  author- 
izes me  to  say  he  will  accept  a  further  amendment  which  I  have  suggested,  that  we 
insert  in  parenthesis  here,  after  the  word  "  amends,"  in  the  third  line,  the  words  "  or 
propose  amendments  to,"  so  that  it  will  read:  "The  question,  'Shall  there  be  a  Con- 
vention to  revise  the  Constitution  and  amend  or  propose  amendments  to  the  same,' " 
etc.  That  meets  the  view,  I  think,  covered  by  the  amendment  offered  by  the  gentleman 
from  Richmond  (Mr.  Gordon). 

Mr.  James  W.  Gordon:  Tha.t  does  not  meet  the  objection,  for  this  reason:  It 
throws  this  whole  discussion  that  we  have  had  on  the  floor  of  this  Convention  which 
you  propose  to  call  in  the  future.  It  seems  to  me  it  does  not  meet  the  point  raised 
by  the  gentleman  from  Winchester  (Mr.  Harrison)  and  others,  that  in  the  election 
which  calls  the  Convention  the  people  should  decide  as  to  whether  they  shall  have  a  chance 
at  it  after  it  is  framed,  or  whether  the  Constitution  shall  be  proclaimed.  My  substi- 
tute makes  that  perfectly  plain. 

Mr.  Braxton:  Mr.  President,  I  agree  with  the  gentleman  that  the  question,  as  to 
whether  the  Convention  should  proclaim  or  submit  the  Constitution  is  a  matter  that 
should  be  settled  by  the  people  at  the  start.  It  may  be  that  his  language  is  more  apt 
to  accomplish  that  object  than  the  language  I  have  used. 

Mr.  James  W.  Gordon:  I  ask  permission  to  read  this  language  and  show  what  it  is 
intended  to  accomplish;  and  I  will  ask  gentlemen  to  listen  to  it  a  moment,  as  I  think  it 
covers  the  point: 


■2754: 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


At  the  general  election  in  the  year  1921  and  in  every  twentieth  year  thereafter, 
and  at  such  other  time  as  the  General  Assembly  may  by  law  provide  the  question: 
"  Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?"  shall  be 
decided  by  the  electors  qualified  to  vote  for  members  of  the  General  Assembly. 

That  is  one  proposition  to  be  voted  on  by  the  people — shall  there  be  a  Convention 
to  revise  the  Constitution  and  to  amend  the  same.    The  next  is:  - 

And  there  shall  be  decided  at  the  same  time  and  in  the  same  manner  whether  the 
proposed  Constitution  shall  be  proclaimed  or  submitted  to  a  vote  of  the  people  for 
their  ratification  or  rejection. 

Mr.  Carter:    There  are  three  questions.    Why  not  leave  them  all  to  the  people? 

Mr.  James  W.  Gordon:  If  you  had  three  propositions  being  voted  on  at  one  time, 
no  one  of  three  would  receive  a  majority  of  the  votes  cast.  Under  the  proposition  which 
I  have  presented,  each  one  of  these  propositions  would  either  have  to  be  lost  or  carried 
by  a  majority  or  minority  as  the  case  might  be,  of  the  votes  cast. 

Mr.  Harrison:  Mr.  President,  it  seems  to  me  the  objection  of  the  gentleman  from 
Hanover  (Mr.  Carter)  can  be  very  easily  met  by  somebody  simply  phrasing  the  ques- 
tion as  to  whether  the  Convention  shall  have  full  powers  or  limited  powers. 

Mr.  James  W.  Gordon:    I  am  perfectly  willing  to  put  it  that  way. 

Mr.  Mereditn:  Mr.  President,  I  hope  the  Convention  will  adopt  the  amendment  as 
offered  by  the  gentleman  from  Culpeper  (Mr.  Barbour)  with  the  amendments  accepted 
by  him,  and  that  we  will  put  nothing  else  in  the  Constitution.  I  think  it  is  very  desir- 
able that  we  should  put  his  amendment  in  there.  We  can  see  very  great  danger  that  a' 
Legislature,  without  some  restriction  on  it  might  meet  in  a  very  short  time,  under  very 
great  political  excitement,  in  the  hands  of  an  unfavorable  party  and  might  immediately 
for  the  purpose  of  getting  rid  of  any  plan  of  suffrage  we  might  adopt — 

Mr.  Harrison:  Suppose  this  Convention  should  put  in  this  Constitution  that  the 
Legislature  should  never  call  a  Constitutional  Convention;  would  that  have  any  vitality 
at  all 

Mr.  Meredith.    No.  - 

Mr.  Harrison:  Then  why  do  you  draw  the  line  as  to  what  power  we  can  confer 
upon  the  Legislature  as  to  future  Constitutional  Conventions? 

Mr.  Meredith:  That  is  the  question  that  seems  to  have  been  decided  by  the  author- 
ities cited  by  the  gentleman  from  Culpeper  (Mr.  Barbour),  in  favor  of  the  proposition, 
and  the  other  being  an  absolute  attempt  to  tie  the  people's  hands,  would  be  so  regarded 
as  destructive  of  the  people's  rights;  but  as  a  simple  plan  has  been  adopted,  it  is  deemed 
proper  that  they  should  be  limited  by  that  provison  in  the  Constitution.  If  the  gentle- 
man disputes  the  authority,  that  is  another  matter.  I  only  state  the  law  as  cited  by  the 
gentleman  from  Culpeper. 

Mr.  Harrison:    I  have  not  seen  those  authorities. 

Mr.  Meredith:  Nor  have  L  I  do  hope  the  Convention  will  go  further  than  is  sug- 
gested by  the  gentleman  from  Culpeper.  I  do  not  believe  it  would  be  wise  for  us  to  put 
into  the  Constitution  a  statement  that  You  shall  submit  to  the  people  as  to  whether 
they  will  vote  to  propose  or  to  adopt  a  Constitution."  Suppose  you  do  so,  and  they  vote 
upon  that  question.  Now,  are  the  people  prepared  to  say  at  that  time  as  to  whether  they 
want  that  Constitution  proclaimed  or  submitttd.  Take  the  conditions  of  affairs  that 
exist  here  with  us.  There  are  many  of  us  who  came  here  with  the  idea,  with  almost 
the  certain  purpose,  of  submitting  this  Constitution  to  the  people,  and  many  of  us  have 
changed  our  views;  and  yet  if  this  question  had  been  submitted  to  the  people  as  to 
whether  we  should  propose  it  or  proclaim,  it,  and  they  had  voted  on  that  question,  I  do 
not  see  how  we  could  well  get  rid  of  proclaiming  it.  You  will,  in  other  words,  anticipate 
your  determination  as  to  a  thing  about  which  you  ought  not  to  make  up  your  mind  until 
you  have  it  before  you.    You  will  undertake  to  say  whether  a  Constitution  is  so  meri- 


DEBATES  OF  TEIE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2755 


tcriciis  that  it  ought  to  be  proclaimed,  before  you  kno^-  v,-hat  the  Constitution  is.  or  you 
will  undertake  to  say  that  a  Constitution  is  so  objectionable  that  it  ought  to  be  submitted 
before  you  ever  heard  of  what  is  going  to  be  a  provision  in  it.  I  submit  that  is  not  a 
wise  line  of  conduct  for  us  to  pursue. 

On  the  other  hand  I  do  submit  it  is  a  matter  vre  ought  to  trust  to  the  integrity  and 
good  judgment  of  the  members  of  the  Convention  who  make  the  Constitution.  They 
ascertain  what  are  the  feelings  of  their  constituents.  They  ascertain  that  in  the  differ- 
ent ways  that  they  see  fit,  whether  by  calling  county  conventions,  by  calling  mass  meet- 
ings, or  whatever  may  be  the  method.  They  can  ascertain,  after  the  Constitution  has 
been  framed,  what  are  the  wishes  of  the  people,  as  to  what?  That  particular  Constitu- 
tion.   They  can  make  up  their  minds  as  to  some  concrete  thing. 

I  submit  it  would  be  wiser  to  let  us  pursue  the  course  which  we  have  been  pursuing 
in  making  a  Constitution,  and  then  determine  amongst  ourselves  by  ascertainment,  if 
you  choose,  of  the  people's  wishes,  or  arbitrarily  if  you  choose  and  let  us  bear  the  re- 
sponsiblity.  but  determine  for  ourselves  after  the  thing  is  made,  as  to  v/hat  ought  to  be 
done. 

It  would  be  extremely  unwise  to  tie  the  hands  of  the  people,  and  tie  our  own  hands 
before  we  knov/  what  we  are  going  to  tie  otir  hands  about.  I  earnestly  urge  that  the 
amendment  as  offered  by  the  gentleman  from  Culpeper  be  supported  and  that  the  sug- 
gestions that  have  been  made  by  my  colleague"  from  Richmond  (Mr.  Gordon)  or  by  the 
gentleman  from  Augusta  (Mr.  Braxton)  vrill  be  voted  down,  and  that  we  will  not  tie  our 
hands,  before  we  know  as  to  what  we  tie  them. 

Mr.  James  W.  Gordon:  In  order  to  meet  the  objection  "of  some  gentlemen,  I  ask 
to  make  this  little  change  in  the  language  of  the  substitute  I  propose: 

And  there  shall  be  decided  at  the  same  time  and  in  the  same  manner  whether  the 
proposed  Convention  shall  have  full  power,  or  whether  the  proposed  Constitution  shall 
be  submitted  to  a  vote  of  the  people  for  their  ratification  or  rejection. 

Mr.  Braxton:    Mr.  President,  is  it  in  order  to  offer  a  substitute? 

The  President:  There  is  an  amendment  pending  offered  by  tne  gentleman  from 
Culpeper  (Mr.  Barbour)  to  which  the  gentleman  from  Richmond  (ilr.  Gordon!  has 
offered  an  amendment.  It  is  in  order  to  offer  to  amend  either  the  original  proposition 
offered  by  the  gentleman  from  Culpeper,  or  that  offered  by  the  gentleman  from  Rich- 
mond; but  if  the  gentleman  offers  an  independent  proposition,  it  must  be  a  substitute 
for  the  whole. 

Mr.  Braxton:  I  will  offer  this,  then,  as  an  amendment  to  the  amendment  offered 
by  the  gentleman  from  Culpeper:  Strike  out  the  v^-ords  "shall  there  be  a  Convention 
to  revise  the  Constitution  and  amend  the  same."'  and  so  on.  in  line  2.  down  to  and 
including  the  words  "General  Assembly"'  in  line  5.  and  insert  in  lieu  thereof  the  words: 

The  question  shall  be  decided  by  the  electors  qualified  to  vote  for  members  of  the 
General  Assembly,  shall  there  be  a  Constitutional  Convention  to  be  held  as  prescribed 
in  the  act  submitting  the  question,  in  vrhich  act  the  powers  of  the  proposed  Convention 
in  the  matter  of  proclaiming  or  submitting  the  Constitution  shall  be  specified. 

Mr.  President,  it  seems  to  me  that  this  is  a  right  important  matter  we  are  on.  I 
fully  agree  with  what  my  friend  from  Culpeper  (]\Ir.  Barbour)  says,  that  there  ought  to 
be  some  provision  in  here  to  prevent  Constitutional  Conventions  being  called  by  any 
i^egislature  at  any  time,  clothed  with  any  powers  they  may  choose.  In  the  absence  of 
any  provision  to  that  effect.  I  take  it  the  present  Legislature  could  call  a  Constitutional 
Convention  to  sit  this  summer,  with  absolute  power  to  proclaim  a  new  Constitution, 
and  all  the  people  could  do  v/ould  be  to  elect  delegates  thereto. 

As  I  understand  the  law  in  this  matter  it  is  that  this  Convention  has  not  the  povrer 
to  make  any  enactment  which  will  prevent  the  people  having  a  reasonable  opporttmity 
of  amending  this  Constitution:  but  it  does  have  the  power  of  prescribing  reasonable 


2756 


DEBATES  OE  THE  CONSTITUTIOisTAL  CONVENTION  OE  VIRGINIA. 


rules  and  regulations  for  the  carrying  out  of  that  thing,  and  if  we  undertake  to  put  a 
provision  in  here  whereby  we  cut  the  people  off  entirely  from  amending  it,  it  is 
absolutely  void;  but  if  we  put  a  provision  in  here  which  prescribes  reasonable  regula- 
tions and  methods  for  accomplishing  that  purpose,  they  are  exclusive. 

It  seems  to  me,  Mr.  President,  that  the  people  have  the  innate  right  to  call  a 
Convention  to  propose  amendments  to  it,  or  to  call  a  Convention  and  leave  it  to  the 
Convention  to  say  whether  they  will  proclaim  it  or  submit  it  as  they  choose;  and  that 
any  provision  we  adopt  which  cuts  the  people  off  from  the  right  to  do  any  one  of  those 
three  things  is  curtailing  the  power  of  the  people  and  not  merely  providing  reasonable 
regulations  for  carrying  out  the  power.  If  we  say  that  the  only  question  that  can  be 
submitted  to  the  people  is  the  question  can  a  Convention  be  called  to  amend  the  Con- 
stitution? We  preclude  them  from  calling  a  Convention  to  propse  amendments  to  the 
Constitution  and  we  preclude  them  calling  a  Convention  to — 

Mr.  Barbour:  Do  we  not  provide  here  for  a  system  for  proposing  amendments 
to  the  Constitution? 

Mr.  Braxton:  A  system  for  proposing  them  to  the  Legislature,  but  not  through 
the  Convention.  The  proposition  I  make  is  that  through  every  Constitutional  Con- 
vention they  have  the  right  to  propose  amendments,  to  enact  amendments  or  to  give 
plenary  power  to  the  Convention  to  do  either  they  choose.  When  we  undertake  to 
provide  reasonable  regulations  for  them,  they  must  not  be  of  such  a  character  as  to  cut 
them  off  entirely  from  doing  either  one  of  these  things.  In  order  that  the  people  may 
speak  upon  that,  the  Legislature  must  propose  a  question  to  them  and  it  seems  to  me 
that  the  idea  embodied  in  the  amendment  which  I  propose  is  the  most  regular  one; 
that  the  Legislature,  whenever  they  think  a  Constitutional  Convention  should  be  called, 
shall,  in  their  act  submitting  the  question  to  the  people,  say  what  sort  of  a  Convention 
it  is  proposed  to  call.  Do  you  propose  to  call  one  to  proclaim  a  Constitution?  Do  you 
propose  to  call  one  to  propose  amendments  to  it,  or  do  you  propose  to  call  one  to  give 
plenary  power  to  proclaim  or  propose  it?  Say  in  the  act  what  sort  of  a  Convention  you 
want  and  then  leave  it  to  the  people  whether  they  will  call  that  kind  of  a  Convention. 
Then,  when  the  Convention  is  called,  the  question  will  never  again  arise  because  the 
act  which  subm;itted  the  question  to  the  people  and  which  received  its  force  from  the 
subsequent  vote  of  the  people,  would  prescribe,  on  its  face,  the  exact  powers  of  the 
Convention  and  when  a  man  voted  for  such  a  Convention  he  would  not  have  to  depend 
upon  the  declarations  of  political  conventions,  but  he  would  know  absolutely  whether 
he  was  voting  for  one  to  submit  the  Constitution  or  whether  he  was  voting  for  a  Con- 
vention which  was  to  proclaim  the  Constitution  or  whether  he  was  voting  for  a  Con- 
vention which  could  do  either  it  chose.  If  you  wish  to  accomplish  that  purpose  I  think 
it  can  be  done  under  the  language  I  propose.  The  question  that  shall  be  submitted 
to  the  people  is  not  "  Shall  a  Convention  be  called  to  amend  the  Constitution,"  because 
I  contend  that  amending  it  and  proposing  amendments  to  it  are  different  things.  The 
question  is  "  Shall  there  be  a  Constitutional  Convention  held  as  prescribed  in  the  act 
submitting  the  question,  in  which  act  the  powers  of  the  proposed  Convention  in  the 
matter  of  proclaiming  or  submitting  the  new  Constitution  shall  be  specified?"  I  say, 
Mr.  President,  that  by  and  in  this  way  you  accomplish  these  purposes.  You  prescribe 
a  regular  and  orderly  method  of  exercising  this  function  by  the  people.  At  the  same 
time  you  do  not  cut  them  off  from  the  free  exercise  of  their  rights  but  leave  it  to  them 
or  to  the  Legislature  to  submit  to  them  either  one  of  these  questions  they  choose.  I 
think  this  is  a  matter  of  a  great  deal  of  importance  and  I  trust  it  may  be  the  pleasure 
of  the  Convention  to  adopt,  at  least  in  substance,  the  idea  involved  in  this  amendment. 
I  would  be  very  much  gratified  if  my  friend  from  Culpeper  could  see  his  way  clear  to 
agree  with  me,  in  substance. 

Mr.  Barbour:  Mr.  President,  I  am  very  sorry  that  I  cannot  see  my  way  clear  to 
accept  the  suggestion  of  my  friend  from  Augusta.  It  seems  to  me  that  when  we  pro- 
vide in  this  Constitution  a  method  by  which  amendments  may  be  proposed  to  the 
Constitution  and  then  provide  another  way  by  which  the  people,  if  they  shall  see  fit  to 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEVTIOX  OE  VIEGIXIA. 


2757 


do  so.  can  call  another  Conveniion  v^-ith  power  either  to  proclaim  or  to  submit  their 
"work  to  the  people,  we  have  done  all  we  ought  to  do  in  this  matter.  It  is  impossible 
for  the  people  to  judge  wiseh".  in  advance,  as  to  what  should  be  done  with  the  Consti- 
tution which  is  prepared  hj  the  Convention. 

It  is  possible  for  the  members  of  the  Convention  themselves,  to  tell  what  is  just 
and  wise  and  proper  to  be  done  with  such  an  instrument.  The  best  way  is  to  follow 
the  course  that  has  heretofore  been  followed  in  this  respect  and  leave  that  matter  to  the 
Convention  itself,  as  is  done  under  the  provisions  of  the  present  Constitution  of  the 
State  of  Virginia.  The  language  which  has  been  reported  from  the  committee  is 
exactly  the  language  of  the  Constitution  under  which  we  are  acting,  except  that  the 
former  provision  contained  the  clause  that  this  question  should  be  submitted  every 
twenty  years  whether  or  no.  It  has  never  happened  that  this  period  of  twenty  years 
came  at  a  time  when  the  people  thought  proper  to  call  a  Convention.  It  is  not  likely 
that  such  a  thing  will  happen  in  the  future.  This  leaves  it  absolutely  discretionary  with 
the  Legislature  to  submit  this  question  when  they  want  to,  in  the  future,  and  the  con- 
struction which  will  have  been  put  upon  this  clause  by  this  Convention,  itself,  will  leave 
no  doubt  as  to  what  is  the  meaning  of  the  language.  It  seems  to  me  that  is  an  advan- 
tage and  that  we  ought  to  adopt  language  which  we  are  acting  under  ourselves  and 
which  we  have  construed  ourselves. 

Mr.  James  W.  Gordon:  Mr.  President,  I  want  to  call  the  attention  of  the  Conven- 
tion to  one  very  radical  difference  between  the  amendment  offered  by  the  gentleman 
from  Augusta  and  that  which  I  propose  in  my  substitute.  If  he  had  provided  for  taking 
two  votes,  one  as  to  whether  there  should  be  a  Constitutional  Convention  and  another 
as  to  the  powers  which  that  Convention  should  exercise,  I  would  be  very  glad  to  accept 
his  amendment  and  to  withdraw  my  substitute.  But  it  may  very  well  happen,  under 
his  amendment,  that  a  man  might  come  to  the  polls  and  say:  "  I  am  extremely  anxious 
that  there  should  be  a  Constitutional  Convention  in  this  State;  but  I  am  very  unwilling 
to  call  that  Convention  under  the  limitations  imposed  upon  me  b3'  the  Legislature." 
Therefore  it  seems  to  me  that  whenever  this  question  is  presented  to  the  people  they 
are  first  to  decide  whether  there  shall  be  a  Constitutional  Convention  and  then  they  are 
to  decide  at  the  same  time  and  in  the  same  manner,  as  to  how  that  Constitution  shall 
be  carried  into  effect,  whether  by  proclamation  on  the  part  of  the  Convention  or  by 
submission  to  the  people  for  ratification  or  rejection.  Under  the  provision  submitted 
by  the  gentleman  from  Augusta,  he  absolutely  ties  a  man  down  to  not  only  voting  for 
or  against  the  Constitution,  but  to  voting  on  a  particular  method  which  the  Legislature 
has  pointed  out.  For  that  reason  it  seeme  to  me  it  would  be  unwise  to  adopt  his 
amendment. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentlemen  from  Augusta  to  the  amendment  proposed  by  the  gentleman  from  Culpeper. 

Ayes — Messrs.  Braxton,  Clarence  J.  Campbell,  Davis,  Earman,  Epes,  Hamilton. 
Harrison,  G.  W.  Jones,  Lincoln.  Pedigo.  Portlock.  Robertson,  Stuart,  and  Willis — 14. 

Noes — Messrs.  Allen.  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barbour,  Boaz, 
Brov-n,  Carter.  Chapman.  Dunaway,  Eggleston,  Fairfax,  Fletcher,  Gamett,  Gilmore, 
James  W.  Gordon,  Green,  Gw^-n,  Hancock.  Hardy,  Hatton.  Ingram,  Lindsay,  Mcllwaine. 
Meredith,  Moncure.  R.  Walton  Moore,  Mundy.  Orr.  Parks,  Pollard.  Quarles,  Richmond, 
Rives,  Summers,  Tarry,  Thornton,  Turnbull.  Watson.  Wise.  Withers,  and  the  Pres- 
ident— 42. 

The  amendment  was  rejected. 

The  President:    The  question  is  on  agreeing  to  the  amendment  in  the  nature  of  a 
substitute  offered  by  the  gentleman  from  Richmond  city. 
The  substitute  was  rejected. 

The  President:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Culpeper. 

Mr.  Braxton;    Mr.  President,  I  tnink  if  we  adopt  the  amendment  offered  by  the 


2758  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

gentleman  from  Culpeper  that  we  will  simply  perpetuate  the  state  of  affairs  we  have 
to-day.  We  have  a  condition  here  to-daj^  when  this  body  is  not  certain  and  no  man  can 
say,  with  certainty,  what  the  powers  of  this  body  are,  whether  we  are  authorized  to  pro- 
claim or  submit.  That  que&tion  will  never  be  settled  as  long  as  Vve  perpetuate  this 
condition  of  affairs.  The  people  have  the  innate  right  to  say,  when  they  call  a  Con- 
stitutional Convention,  what  its  powers  shall  be,  and  we  undertake  to  say  they  shall  not 
be  allowed  to  call  any  Constitutional  Convention  except  one  with  power  to  proclaim  the 
Constitution.  It  matters  not  what  your  powers  are,  I  submit  the  people  have  the  right, 
when  they  call  a  Constitutional  Convention,  to  say  to  the  Convention  that  it  shall  have 
a  right  to  proclaim  its  Constitution  or  to  say  that  it  shall  submit  it  or  that  it  may  do 
either  it  chooses.  I  say  that  nothing  we  can  do  in  this  Convention  can  deprive  the  peo- 
ple of  that  right. 

Mr.  Hatton:  Could  they  not  instruct  their  delegates  to  vote  in  that  way? 
Mr.  Braxton:  It  would  be  merely  pursuasive.  It  would  have  no  legal  effect.  The 
effect  of  this  amendment  is  to  provide  that,  hereafter,  no  Convention  shall  be  called 
unless  the  people  authorize  it  to  proclaim  a  Constitution.  It  may  be  that  the  people 
will  not  authorize  it  to  proclaim,  and  they  have  the  right  to  require  the  Convention  to 
submit  it  or  the  right  to  leave  it  to  the  Convention  to  either  submit  or  proclaim,  as  they 
may  deem  best.  If  we  adopt  any  provision  here  under  the  guise  of  regulating  the  exer- 
cise of  that  right  by  the  people,  we  absolutely  cut  them  off  from  the  possibility  of  exer- 
cising it  except  in  one  particular  v^ay.  My  friend  from  Richmond'  suggests  that  it  may 
be  unwise  to  say  in  advance  whether  a  Constitution  should  be  proclaimed  or  not.  It  is 
for  the  people  and  their  representatives  to  determine  that,  and  if  they  think  it  is  unwise 
to  determine  it  in  advance,  they  must  elect  the  Convention  and  give  that  Convention 
the  power  to  determine  the  question.  I  say  it  is  the  height  of  unwisdom  to  perpetuate 
a  condition  of  affairs  that  has  perplexed  us  more  than  any  other  one,  that  is  the  question 
as  to  the  rights  and  powers  of  this  body.  I  say  that  a  body  is  called  to  undertake 
to  make  the  fundamental  laws  of  a  State  and  is  called  in  such  a  loose-jointed  way  that 
the  members  have  difficulty  in  determining  what  their  powers  are  in  the  premises,  it  is 
an  unfortunate  condition  of  affairs  and  ought  not  to  be  perpetuated.  It  seems  to  me  it 
is  a  grave  mistake  we  are  making  and  one  that  we  have  no  excuse  for,  because  we  find 
ourselves  to-day  embarrassed  by  this  very  provision  in  the  present  Constitution,  which 
leaves  it  doubtful  as  to  what  our  powers  are.  I  say  that,  hereafter,  when  the  people 
vote  for  a  Constitutional  Convention  there  should  be  no  shadow  of  doubt  as  to  what  the 
powers  of  that  Convention  are.  We  ought  not  to  depend  upon  what  this  man  thinks  or 
that  man  thinks  or  what  that  newspaper  man  v^^rites  or  what  this  politician  promises  to 
his  constituents.  It  ought  to  be  a  matter  of  law  and  of  law  so  plain  that  men  could  not 
differ  as  to  what  the  powers  of  the  body  are,  when  it  is  called  into  being.  The  only  way 
to  determine  that  is  to  specify  in  advance. 

You  ought  to  say:  "You  are  required  absolutely  to  proclaim  it;  you  are  required 
absohitely  to  submit  it  or  we  will  leave  it  to  your  discretion  after  you  have  adopted  it 
to  proclaim  or  submit  it  as  you  think  best.  I  say  the  people  have  the  right  to  say  you 
shall  do  any  one  of  these  things.  It  is  not  in  the  power  of  this  Convention  to  cut  them 
off.  If  you  do  anything  to  the  contrary  it  is  of  no  effect,  and  you  cannot  put  it  in  force. 
Suppose  the'  people  say:  We  want  to  call  a  Convention  with  powers  different  from 
those  ycu  have  pre  scribed.    Plow  could  they  call  it? 

Mr.  Claggett  B.  Jones:  Do  you  not  think  you  had  better  provide,  in  future  con- 
ventions, whether  the  members  are  to  take  an  oath  or  not  to  take  an  oath? 

Mr.  Braxton:  I  think  so;  and  I  will  be  glad  to  provide  for  that  so  as  to  settle  the 
question  that  members  of  a  Constitutional  Convention  are  not  officers  of  the  State  and 
are  not  required  to  take  an  oath  except  the  oath  to  support  the  Constitution  of  the 
United  States  and  to  honestly  and  faithfully  perform  their  duties  in  Convention. 

Mr.  Sum.mers:  How  could  the  people  vote  before  they  knew  what  the  Constitution 
v^as?  Then  I  want  to  inquire  if  you  will  not  be  willing  to  accept  an  amendment  that 
all  Constitutions  shall  be  submitted  to  the  people. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


Mr.  Braxton:  No,  sir;  and  I  do  not  think  it  v.-ould  be  of  any  effect  if  we  should 
adopt  it  because  the  people  hereafter  have  the  right,  v/hich  we  cannot  take  awa^^  from 
them  by  anything  we  do,  to  say  that  they  will  elect  a  Convention  to  proclaim  it  or  a 
Convention  to  submit  it,  as  they  choose.  We  cannot  curtail  their  power  in  that  respect. 
When  the  Question  is  submitted  to  a  man  to  vote  upon,  shall  there  be  a  Constitutional 
Convention,  the  man  who  votes  for  it  has  the  right  to  know  what  kind  of  a  Constitu- 
tional Convention  he  is  voting  for.  He  has  the  right  to  know  in  advance,  because  he 
may  say,  if  this  Convention  has  the  right  to  proclaim,  I  will  not  vote  for  it,  but  if  it  has 
the  right  only  to  submit,  I  will  vote  for  it.  That  is  a  question  he  is  absolutely  entitled 
to  know  before  he  votes  for  or  against  it.  I  hope  this  Convention  will  see  that  when 
the  act  which  submits  the  question  to  the  people  undertakes  to  prescribe  the  powers  of 
the  Convention,  it  is  just  as  competent  for  them  to  say  that  the  proposed  Convention 
shall  be  vested  with  the  power  to  proclaim  or  submit  the  Constitution  as  they  choose, 
as  it  is  for  them  to  say  that  the  proposed  Convention  shall  be  obliged  to  submit  or 
obliged  to  proclaim.  The  only  pcli't  I  r^ake  is  that  the  people,  before  being  called  upon 
to  vote  to  call  into  being  a  body  with  such  powers  as  this,  are  entitled  to  know  absolutely 
what  the  powers  of  the  boG3-  are  for  vv-hich  they  are  going  to  vote. 

Mr.  Harrison;  ^-is  I  understand  this  Question,  if  we  vote  down  the  proposition  of 
the  gentleman  from  Culpeper,  we  leave  the  subject  of  a  Convention  just  as  the  Com- 
mittee of  the  Whole  left  it.  The  Committee  of  the  T\Tiole  recommended  that  we  strike 
out  the  whole  section,  and  leave  it  absolutely  in  the  power  of  the  Legislature  with  dis- 
cretionary powers,  vhich  the  gentleman  from  Augusta  thinks  they  ought  to  have. 

The  President:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Culpeper. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes  31.  noes  25,  as 
follows: 

Ayes — Messrs,  Allen.  W.  A.  Anderson,  Ayers,  Barbour,  Boaz.  Brown.  Barman. 
Eggleston,  Fairfax,  Fletcher,  Garnett,  Gilmore,  Green,  Gwjm,  Hardy,  Hatton,  Lindsay, 
Mcllwalne.  Meredith,  Miller,  E..  Walton  Moore,  Mundy,  Orr.  Phillips,  Pollard.  Quarles. 
Tarry,  Turnbull,  Walter,  Withers,  and  the  President — 31. 

Noes — Braxton,  Clarence  J.  Campbell.  Carter,  Chapman.  Davis,  Dunaway.  Epes, 
James  W.  Gordon,  Hamilton.  Hancock.  Harrison,  Ingram.  Lincoln.  Moncure.  Pedigo, 
Portlock.  Richmond.  Rives.  Robertson.  Summers.  Thornton.  Waddill.  Watscn.  "Willis, 
and  Wise— 25. 

The  amendment  was  agreed  to. 

Mr.  Pollock  offered  the  following  resolution,  and  asked  that  it  be  referred  to  the 
Committee  on  the  Executive  Department: 

Resolved,  That  Section  12,  of  Article  IV,  relating  to  the  Executive  Department- 
adopted  by  the  Convention  on  the  26th  day  of  February,  1902,  be  recinded.  and  the  fol- 
lowing section  be  adopted  in  lieu  thereof: 

SECRETARY   OF   THE  COMMONWEALTH. 

Sec.  12.  A  Secretary  of  the  Commonwealth  shall  be  elected  by  the  joint  vote  of 
the  two  -houses  of  the  General  Assembly  for  the  term  of  four  years. 

He  shall  be  commissioned  by  the  Governor,  and  shall  receive  a  salary  to  be  fixed  by 
law.  He  shall  keep  a  daily  record  of  the  official  acts  of  the  Governor,  which  shall  be 
signed  by  the  Governor  and  attested  by  the  Secretary,  and  when  required  he  shall 
lay  the  same,  and  any  papers,  minutes,  and  vouchers  pertaining  to  his  omce,  before 
either  house  of  the  General  Assembly. 

He  shall  discharge  such  other  duties  as  may  be  prescribed  by  law.  All  fees 
received  by  the  Secretary  of  the  Commonwealth  shail  be  paid  into  the  treasury-  monthly. 

On  motion  of  Mr.  Barbour,  the  Convention  adjourned  until  to-morrow,  Friday.  Feb- 
ruary 28,  1902.  at  lu  o'clock  A.  M. 


2760 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


FRIDAY,  February  28,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  J.  T.  Bosman,  D.  D. 

CITIES  AND  TOWNS. 

The  President:  The  hour  for  the  special  order  has  arrived.  The  business  before 
the  Convention  is  the  consideration  of  the  report  of  the  Committee  on  the  Organization 
and  Government  of  Cities  and  Towns. 

Mr.  Brooke:  Mr.  President,  and  gentlemen  of  the  Convention,  the  special  order  of 
this  morning  is  Section  7  of  the  report  of  the  Committee  on  the  Organization  and  Gov- 
ernment of  Cities  and  Towns.  Every  other  section  of  the  report  has  been  passed  on  by 
the  Convention  in  Committee  of  the  Whole.  A  clause  of  Section  7  was  eliminated,  as 
the  result  of  an  amendment  offered  by  some  gentlemen  upon  the  floor.  I  desire  on  the 
part  of  the  Committee  on  the  Organization  and  Government  of  Cities  and  Towns,  to 
offer  this  amendment  to  Section  7.  In  lines  9,  10,  11,  12,  and  13,  insert:  "  The  less 
numerous  branch  of  the  said  council  shall  be  composed  of  freeholders,  who  shall  own  a 
freehold  estate  in  real  estate  situated  in  said  city  of  an  assessed  value  of  at  least 
$1,000." 

I  would  state  that  the  language  which  I  desire  to  put  into  this  section,  by  an 
amendment  now,  is  just  the  language  of  the  original  report. 

If  the  members  of  the  Convention  will  endeavor  to  bear  with  me  with  some  degree 
of  attention  for  a  very  few  minutes,  I  will  endeavor  to  explain  to  the  Convention  the 
purpose  of  the  Committee  in  adopting  this  section.  The  general  lines  upon  which  the 
work  of  this  Committee  has  worked  out,  were  fully  stated  by  me  in  presenting  this  re- 
port, and  a  bare  reference  to  them  is  all  that  is  necessary  to  refresh  the  memory  of  the 
members  of  the  Convention,  so  that  they  may  be  able  to  appreciate  the  purpose  of  the 
committee  in  the  adoption  of  this  section. 

We  felt  that  the  criticism  expressed  all  over  the  United  States  as  to  the  efficiency 
of  city  governments,  as  they  are  now  organized,  was  a  just  criticism,  and  was  largely 
due  to  the  ill  considered,  the  reckless,  and  sometimes,  even  to  the  corrupt  action  of  the 
city  councils.  In  setting  ourselves  to  meet  that  difficulty,  it  occurred  to "  us  that  it 
might  best  oe  met,  not  by  putting  hide-bound  restrictions  upon  the  power  of  the  council, 
but  by,  in  some  way,  so  constituting  the  councils  themselves  that  their  action  would  be 
more  conservative  and  their  legislation  more  for  the  benefit  of  the  cities  at  large.  In 
order  to  do  that  it  occurred  to  us  that  it  was  necessary  to  accomplish  two  purposes: 
First  if  possible,  to  secure  a  more  conservative  membership  of  the  council,  and,  secondly, 
to  segregate  the  conservative  element  of  the  council  in  such  a  way  that  it  would  have  a 
potent  influence  in  checking  ill-considered  and  reckless  legislation. 

When  we  had  gotten  that  far  in  our  theory  about  the  matter  it  occurred  to  us  to  con- 
stitute the  council  upon  the  same  basis  as  in  the  original  Constitution  of  our  own  gov- 
ernment in  its  legislatve  department,  by  dividing  it  into  two  branches  that  one  might 
be  a  check  upon  the  other.  We  were  then  met  with  this  question:  How  can  we  so 
segregate  the  conservative  element,  which  shall  be  elected  to  the  council,  that  it  may 
have  the  influence  which  is  due  to  it.  We  know,  of  course,  if  the  council  was  composed 
of  forty  members,  and  fifteen  of  them,  for  example,  were  the  most  conservative,  level- 
headed, honest  and  upright  citizens  of  the  town,  yet  if  they  held  their  seats  in  the  same 
body  with  the  other  twenty-five  who  might  represent  the  very  extreme  they  Avould  have 
practically  no  effect,  certainly  no  certain  effect,  upon  the  legislation,  inasmuch  as  they 
would  always  be  liable  to  be  out  voted  by  the  tv/enty-five  who  did  not  represent  the  con- 
servative element  of  the  city.  It  therefore  occurred  to  us  that  we  ought  to  segregate 
the  conservative  element  into  a  separate  branch  and  by  so  doing  give  them  their  just 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


2761 


weight  in  directing  and  creating  legislation.  So  we  got  to  the  point  that,  in  our  opinion, 
there  oiignt  .o  be  two  branches  of  the  council,  and  that  the  lesser  branch  should  be  com- 
posed of  the  more  conservative  element  of  the  people  What  qualification  to  impose  in 
order  to  secure  this  conservative  element  in  the  council  was  a  matter  which  gave  us  a 
great  deal  of  concern  and  a  great  deal  of  trouble.  Finallj^  we  determined  that  a  small 
freehold  qualification  for  membership  in  the  lesser  branch  would  give  to  the  real  estate 
interest,  to  the  landed  interest,  to  the  people  who,  after  all,  in  the  final  analysis  bear 
the  larger  proportion  of  the  taxes  and  bear  the  greater  burden  of  reckless  legislation, 
such  a  representation  in  the  city  council  as  that  they  might  be  a  potent  and  legitimate 
check  upon  the  extravagant  wasting  of  the  city  revenues. 

Now,  gentlemen,  these  are  the  principles  by  which  we  were  governed,  and  which 
led  us  to  the  adoption  of  the  article  recommending  two  chambers  in  all  councils  of 
cities  and  towns,  and  that  the  lesser  should  not  be  filled  except  by  freeholders,  having 
a  small  freehold  qualification. 

Mr.  President,  we  did  not  find  this  whole  subject  free  from  difficulty.  We  attempted 
to  produce  an  article  here  which,  by  progressive  stages,  would  lead  us  to  better  city 
government.  W^e  strengthened,  first,  the  hand  of  the  Mayor  by  giving  him  the  veto 
power  and  giving  him  larger  powers  than  he  now  has.  We  strengthened  the  situation 
by  the  adoption  of  a  council  of  two  branches,  the  lesser  branch  to  be  composed  of  the  , 
conservative  element.  W^e  submit  to  you  that  this  is  a  much  more  philosophical  way  to 
deal  with  this  matter  than  by  attempting  to  lay  down  any  hidebound,  ironclad  restric- 
tions upon  the  legislative  power  of  the  city  council. 

Personally,  if  I  may  be  permitted  to  say  so,  I  feel  that  this  is  one  of  the  most 
important,  elements  in  our  report.  To  my  mind  it  carries  with  it  more  security  to  the 
people  of  the  cities  than  any  other  and  almost  all  of  the  other  provisions.  The  w^hole 
root  of  the  trouble  in  city  government  lies  with  the  city  council.  If  we  undertake  to 
correct  it  we  ought  to  try  to  correct  it  upon  some  lines  which  will  be  at  least  philo- 
sophical and  will  be  permanent  in  their  operation. 

I  hope  very  much  that  the  amendment  which  is  offered  on  the  part  of  the  com- 
mittee may  be  adopted  by  the  Convention. 

Mr.  Harrison:  I  w^ant  to  give  notice  that  I  desire  to  offer  an  amendment  as  an 
independent  section  to  this  report  to  be  known  as  Section  15.    The  proposed  section  is: 

Nothing  CLntained  in  this  article  shall  effect  the  repeal  or  amendment  of  any 
charter  of  any  city  of  less  than  25,000  population  or  interfere  with  the  control  of  the 
General  Assembly  over  the  same  in  regard  to  its  local  municipal  government  and  its 
local  municipal  officers  as  distinguished  from  State  officers. 

Of  course  I  cannot  tell  whether  this  provision  will  be  adopted  or  not.  I  am 
opposed,  therefore,  to  the  amendment  offered  by  the  gentleman  from  Norfolk  (Mr. 
Brooke). 

The  gentlemen  of  the  Convention  VNill  observe  that  in  Section  2  it  is  provided  that 
no  special  act  shall  be  passed  except  in  cases  w^here,  in  the  judgment  of  the  General 
Assembly,  the  object  of  the  act  cannot  be  obtained  by  general  laws.  The  result  of 
that  would  be  that  wherever  a  law  was  offered  which  might  be  beneficial  to  one  com- 
munity, and  was  not  beneficial  to  another  community,  the  object  of  which  could  be 
obtained  by  general  law,  there  would  be  a  fight  between  the  two  communities.  I  say 
there  ought  not  to  be  such  a  conflict  of  interest.  There  can  be  no  reason  in  the  world 
why  all  these  little  communities,  or  big  communities,  for  that  matter,  should  not  have 
their  own  special  government,  suited  to  their  own  special  interests.  I  object  to  having 
Inserted  into  this  Constitution  a  provision  for  a  charter  which  is  applicable  to  every 
city  in  this  Commonwealth,  and  which  cannot  be  changed  according  to  the  interests  of 
the  different  municipalities  except  by  general  law,  which  general  law  is  to  be  applicable 
to  every  community. 

I  think  I  can  show  that  to  deny  special  legislation  to  cities  will  be  prejudicial  to 
174 — Const.  Deb. 


2762 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


the  interests  of  the  various  cities  and  towns  in  the  Commonwealth.  When  legislation 
is  desired  by  one  city,  it  may  be  prejudicial  to  others,  and  thus  cities  will  be  in  conflict 
over  legislation  highly  beneficial  to  the  one  community. 

I  desire  to  say  that  the  effect  of  my  amendment  goes  to  this  extent,  that  it  prevents 
any  cities  that  do  not  desire  it  from  having  a  double  branch  in  their  councils.  We  have 
always  had  one  branch.  We  do  not  want  two  branches  of  the  council,  because  it 
requires  too  many  councilmen.  We  have  got  twelve  men  in  our  council  in  a  city  of 
6,000  inhabitants,  and  that  is  all  we  can  satisfactorily  deal  with.  We  might  get  along 
with  a  smaller  number.  But  if  you  are  going  to  have  a  double  branch,  one  of  which 
is  to  be  smaller  in  number  than  the  other,  then  if  you  take  four  for  the  less  numerous 
branch,  it  will  be  too  small,  and  if  you  take  eight,  it  would  swell  our  council  to  twenty 
members.  That  is  not  necessary,  because  twelve  men,  taken  from  the  four  wards  of 
the  city,  give  us  an  absolutely  satisfactory  government.  The  largest  taxpayers  of  the 
city  are  in  the  council,  and  they  represent  nearly  every  condition  of  the  population. 
Nearly  every  walk  in  life  is  represented.  They  have  satisfactorily  administered  the 
affairs  .of  the  city.  The  veto  power  of  the  Mayor  is  not  necessary,  because  under  our 
charter  no  tax  can  be  levied  and  no  appropriation  of  money  can  be  made  unless  two- 
thirds  of  the  council  vote  for  it,  by  a  recorded  vote  which  is  entered  in  their  journal. 
If  the  Mayor  had  the  veto  power  it  would  have  no  sort  of  effect,  because  you  must 
"  already  have  had  the  two-thirds  vote  recorded  in  favor  of  the  measure.  We  do  not 
want  a  freehold  qualification  because  out  of  the  twelve  men  in  that  council,  all  successr 
ful  business  men,  there  would  be  tv^^o-thirds,  at  least,  who  would  be  disqualified  from 
representing  the  city. 

Mr.  James  W.  Gordon:    I  thought  you  said  nearly  all  of  the  present  council  were 
large  property  holders. 

Mr  Harrison:  I  said  tax-payers.  They  do  not  have  to  be  freeholders  in  order  to 
be  tax-payers.  The  largest  tax-payers  in  our  city,  who  pays  a  tax  on  an  income  of 
?1 5,000  a  year,  is  not  a  freeholder,  and  would  be  disqualified  from  sittng  in  the  council 
under  this  provision.  I  say  it  would  be  unnecessary,  and  would  result  in  an  unsatisfac- 
tory state  of  affairs  for  this  Convention  to  interefere  with  the  charter  that  our  commu- 
nity has  enjoyed  for  125  years;  and  it  would  accomplish  no  good  result.  The  present 
method  has  worked  no  evil  result  in  the  past,  and  this  article  can  result  in  no  good  in 
the  future.  All  we  ask  is  that  this  Convention  should  leave  our  city  charter  alone. 
Pass  any  laws  you  please  to  affect  any  other  city  in  the  Commonwealth,  if  you  want  to, 
'  according  to  the  wishes  of  other  people;  but  simply  leave  communities  their  own  char- 
ters. Why  should  not  a  city  have  its  own  charter.  I  say  that  this  body  and  every 
other  body  ought  to  encourage  these  local  communities  to  have  a  municipal  government. 
It  works  in  the  interest  of  the  State.  It  imposes  no  burdens  on  the  State.  The  cost  of 
the  municipal  government  is  not  borne  by  the  tax  payers  at  large.  The  law  and  order 
of  that  community  is  preserved  by  the  local  authorities  at  local  expenses.  It  is  a 
burden,  in  fact,  upon  the  local  community,  and  if  that  local  community  desires  it,  I  do 
not  see  why  it  should  not  have  it.  As  I  say,  under  our  municipal  government,  our 
streets  are  kept  in  order,  our  public  schools  maintained  by  a  tax,  our  free  schools  also 
are  endowed.  The  city  council  has  control  of  it.  We  have  our  system  of  water  works, 
which,  in  a  country  community,  it  would  be  very  difficult  to  maintain,  properly  control 
and  take  charge  of,  any  other  way.  In  every  way  these  little  local  self-government 
charters  work  to  the  good  of  the  State  and  the  burden  of  them  is  borne  by  the  local 
tax-payers  of  that  community.  Why  we  should  undertake  now  to  interfere  with  that 
local  government  which,  as  I  say,  has  operated  so  successfully  in  the  past  and  which, 
so  far  as  we  can  see,  would  be  very  much  interfered  with  by  this  legislation  is  some- 
thing that  I  cannot  see. 

Now,  the  gentleman  says  he  has  got  a  theoretical  government  here  that  he  has 
gotten  out  of  some  books. 

Mr.  Brooke:    No  doubt  some  other  gentlemen  here  may  have  gotten  it  out  of  a 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2763 


book,  but  I  will  inform  you  that  this  particular  feature  is  not  mentioned  in  any  book 
that  I  ever  saw.    I  am  rather  proud  of  having  originated  it  myself. 

Mr.  Harrison:  I  say  we  ought  to  have  our  own  local  government.  Special  legisla- 
tion cannot  change  the  features  that  are  incorporated  upon  town  charters  by  this  article. 
There  is  no  sort  of  denial  of  the  fact,  that  we  will  have  engrafted  upon  our  charter 
provisions  contained  in  this  article,  which  we  do  not  want  and  which  one  of  the  com- 
mittees of  this  Convention,  having  fully  examined  this  subject,  has  said  ought  not  to  be 
put  here.  We  do  not  need  two  chambers  to  our  council  any  more  than  the  veto  power  of 
the  mayor  for  by  another  feature  of  our  charter  the  necessary  deliberation  is  secured  by 
a  rule  that  requires  two  meetings  of  the  council  to  pass  an  ordinance.  The  conserva- 
tism is  secured  by  electing  only  one  third  of  the  council  each  year. 

Mr.  Meredith:  Mr.  President  and  gentlemen  of  the  Convention,  I  know  that  this 
is  rather  a  dry  subject  to  most  of  you  who  do  not  live  in  the  cities;  but  it  is  a  matter 
of  great  importance  to  us  who  do,  unfortunately,  live  in  these  municipalities.  I  do  not 
propose  to  discuss  the  suggested  amendment  of  the  gentleman  from  Winchester.  I 
rather  think  that  the  whole  of  his  argument  has  been  confined  to  a  proposition  which  is 
not  yet  before  the  body.  Any  remarks  I  make  now  shall  be  along  the  line  of  the  propo- 
sition of  the  gentleman  from  Norfolk  (Mr.  Brooke)  that  you  insert  into  this  article 
what  has  already  been  stricken  out  in  Committee  of  the  Whole,  the  provision  contained 
in  lines  9,  10,  11  and  12,  on  page  5,  which  in  substance  require  that  there  shall  be  no 
member  of  the  upper  branch  of  the  municipal  council  unless  he  be  a  freeholder,  with 
real  estate  worth  one  thousand  dollars. 

Mr.  Chairman,  I  feel  constrained  to  oppose  that.  I  think  I  may  claim  that  there  is 
no  man  in  this  Convention  who  has  seen  the  necessity  and  felt  the  necessity  of  putting 
reasonable  restrictions  upon  the  city  councils  more  than  I  have.  I  have  struggled  in 
this  body  to  get  such  restrictions  upon  them  as  Avould  protect  the  people  in  their 
property  and  their  rights.  I  have  argued  for  restrictions  which  are  not  put  upon 
the  legislature  because  I  recognize  the  distinction  between  these  two  bodies,  in  their 
manner  of  meeting,  in  the  people  from  whom  they  are  selected,  in  the  manner  in  which 
they  pass  measures  of  very  great  importance  and  in  the  hasty  manner  in  which  they 
give  away  property  in  the  nature  of  franchises  which  frequently  becomes  ruinous  to  the 
municipality.  Therefore,  I  state  to  you  that  I  think  I  can  say  that  I  have  struggled  as 
earnestly  as  anybody  to  put  reasonable  restrictions  upon  city  councils  for  the  protection 
of  municipalities.  I  feel  constrained  to  object  to  the  line  of  restriction  proposed  here. 
This  is  certainly  an  anomaly  in  our  law.  You  can  elect  the  Governor.  You  can  elect 
any  State  officer  without  his  being  the  owner  of  any  property.  There  is  no  qualification 
of  property  required.  You  can  elect  the  President  of  the  United  States  without  his 
owning  a  foot  of  land  or  a  dollar's  worth  of  property;  and  yet  it  is  proposed  that  you 
should  require  the  members  of  the  board  of  aldermen  of  the  municipality  to  have  what 
is,  regarded  as  a  superior,  if  not  a  higher  qualification,  than  you  impose  upon  the  Presi- 
dent of  the  United  States  or  the  Governor  of  this  Commonwealth. 

I  do  not  mean  to  contend  that  this  is  a  rule  or  reason  by  which  we  should  be 
absolutely  guided.  I  do  say  it  is  one  that  ought  to  be  explained  before  the  gentleman 
makes  a  proposition  to  put  such  a  restriction  upon  the  members  of  a  city  council  when 
it  is  not  required  of  the  officers  of  our  State  and  national  government.  I  can  see  that 
there  might  be  some  reason  that  would  not  apply  to  the  President  of  the  United  States. 
I  know  the  difficulties  of  municipalites.  I  recognize  the  dangers  that  lie  in  view  and  I 
would  be  willing  to  throw  around  them  any  restriction  that  is  reasonable.  But  while 
this  proposed  restraint  is,  in  theory,  extremely  attractive,  I  think  that  in  practice  it 
would  be  an  evil  instead  of  a  benefit.  I  say  in  practice.  I  know  it  sounds  well  to  say 
that  a  man  who  has  property  in  the  community  is  going  to  feel  an  interest  in  that 
community  and  is  going  to  be  prudent  in  the  management  of  municipal  affairs.  That 
may  be  so;  and  it  doubtless  is  true,  but,  Mr.  Chairman,  the  experience  of  those  of  us 
who  live  in  communities  shows  that  we  cannot  get  that  class  of  people  to  go  into  our 


2764 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


city  council.  We  do  not  depend  on  the  man  who  owns  real  estate  in  our  city  to  go  on 
our  council.  You  have  but  little  idea  as  to  the  difficulty  we  have  to  get  that  class  of 
business  men.  You  gentlemen  do  not  appreciate  the  labor  that  is  required  of  a  man  who 
goes  into  a  council  of  a  city  of  the  size  of  Richmond. 

The  work  is  very  great  and  the  tax  upon  their  time  is  very  great  and  the  loss  of 
time  to  them  is  very  great.  It  is  a  very  great  inconvenience  to  them  in  their  business, 
and  it  is  very  rare  that  you  can  get  that  class  of  men  to  give  up  their  private  business 
interests  and  sacrifice  themselves  for  the  public  good. 

I  speak  with  some  knowledge  about  this,  and  I  say  it  is  rare  that  you  can  get  good 
men.  If  you  take  the  younger  men  who  are  practicing  professions  in  the  municipalities, 
just  as  soon  as  a  man  goes  into  politics  he  begins  to  lose  the  benefits  of  his  profession. 
He  is  regarded  more  or  less  as  trifling  with  matters  which  tend  to  keep  him  from  attend- 
ing to  his  profession,  and,  therefore,  he  loses  his  business.  You  can  readily  see  how  it  is 
that  we  have  difficulty  in  getting  the  professional  men,  and  the  business  men  either  say 
they  cannot  do  it  or  they  will  not  do  it. 

What  is  the  class  of  men  to  be  depended  upon  to  serve  in  the  council  of  a  muni- 
cipality? It  is  not  the  business  men;  it  is  not  the  elderly  men.  We  depend  upon  the 
young  men  of  our  community,  who  have  more  time  and  who  are  able  to  give  attention 
to  matters  of  that  kind  without  personal  loss;  and  the  effort  of  those  of  us  who  fight  for 
good  goverment  in  municipalities  is  to  get  the  young  men  to  take  part  in  the  public 
affairs  of  our  community.  Why,  Mr.  Chairman,  look  at  the  late  revolution  that  took 
place  in  the  government  of  the  city  of  New  York.  Who  was  at  the  head  of  it?  Run 
over  in  your  minds  the  men  who  stood  there  in  the  front  and  made  that  fight,  and  you 
find  they  were  young  men.  Municipalities  have  to  depend  on  young  men  to  protect  them 
from  the  evil  element  in  our  communities.  Those  are  the  men  who  rarely  have  real 
estate.  Even  if  they  have  a  couple  of  hundred  dollars'  worth  of  personal  property,  they 
are  rarely  able  to  accumulate  a  thousand  dollars'  worth  of  real  estate. 

I  regard  this  not  as  a  beneficial  restriction,  but  as  a  restriction  limiting  us  in  the 
choice  of  our  members  of  the  council  to  such  an  extent  that  it  would  very  seriously  ham- 
per us  and  I  think  would  injure  us. 

I  think  I  am  speaking  facts  when  I  say — I  know  it  is  the  experience  of  our  own 
city,  and  I  believe  if  you  will  look  at  cities  of  any  size,  you  will  find  it  to  be  so — that 
wherever  in  cities  of  any  size  the  work  attached  to  a  municipal  council  is  very  large, 
the  difficulty  of  getting  men  of  business  standing  in  the  community  is  great.  It  is  so 
great  that  frequently  they  cannot  be  had.  We  will  have  an  election  in  this  city  in  May. 
There  are  some  of  us  who  take  an  interest  in  our  city  government  and  we  strive  to  look 
arou'nd  and  pick  out  as  far  as  we  can  proper  men  to  send  to  our  city  council;  just  for 
the  purpose  of  endeavoring,  as  good  citizens,  to  get  a  good  government,  and  with  no 
other  object.  I  happen  to  live  in  one  of  the  wealthiest  wards  of  this  city,  and  to-day  we 
are  having  difficulty  to  get  men  to  go  to  the  council.  We  are  picking  out  the  young 
men  of  our  ward  because  we  feel  that  they  can  afford  to  do  it  better  than  the  business 
men,  and  the  business  men  will  not  go.  The  young  men  we  are  picking  out  are  men 
without  this  qualification;  so  I  say  instead  of  benefitting  this  community,  you  will  be 
hampering  it  in  the  men  as  to  whom  they  will  be  able  to  select. 

We  all  know — I  do  not  propose  to  stand  here  and  argue  it — that  money  does  not 
make  a  man  more  virtuous.  In  our  own  city  council  (and  I  presume  it  is  so  in  the 
councils  of  the  other  cities  of  any  size  where  you  have  vicious  elements)  some  of  the 
members  who  have  the  most  property  are  men  of  the  worst  character. 

Mr.  Brooke:  I  hope  you  did  not  understand  anything  that  was  said  by  me  as  being 
■an  argument  to  the  effect  that  men  who  have  money  are  necessarily  more  virtuous? 

Mr.  Meredith:  I  said  that  was  not  argued.  I  know  you  said  nothing  of  the  kind. 
But  there  are  men  in  our  council  who  are  owners  of  real  estate,  and  one  or  two  of  them 
large  owners  of  real  estate,  whose  character  is  far  from  desirable;  but  some  of  our  best 
men,  some  of  our  truest  men,  some  of  the  men  who  can  withstand  temptation  to  which 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


men  of  that  character  are  subjected  in  all  questions  of  municipal  government,  where 
large  amounts  of  money  are  invoh-ed,  are  to-day  v.-iihout  a  dollar  of  property.  One  of 
them  is  a  professor  of  law  at  Richmond  College,  and  so  far  as  I  know  he  does  not  own 
a  dollar  of  property,  and  he  is  benefiting  the  city  in  which  he  lives  by  sacrificing  him- 
self and  giving  his  time  and  attention  to  the  municipal  affairs  of  this  community. 

I  submit  you  are  not  doing  us  a  benefit  by  putting  this  restriction  upon  us,  but  you 
are  ctitting  us  off  from  getting  a  class  of  men  who  are  our  best  representatives.  We  feel 
that  we  have  had  to  struggle  hard  enough  anyhow.  Do  not  require  us  to  look  around 
and  get  men  of  property,  because  it  would  be  extremely  difficult,  and  frequently  impos- 
sible, to  get  that  class  of  men  to  sacrifice  themselves:  not  that  they  are  not  willing  to 
do  it  personally,  but  when  they  go  into  the  council  their  business  is  sacrificed  to  a  cer- 
extent,  and  they  cannot  afford  to  let  it  go  to  rack  and  ruin  simply  for  the  public  good. 

Mr.  Barbour:  ]\Ir.  President,  I  had  not  expected  to  say  anything  on  this  subject, 
except  that  the  gentleman  from  Richmond  (Mr.  Meredith)  said  that  there  is  no  reason 
which  distinguished  representatives  in  a  body  of  this  kind  from  those  in  the  State  Legis- 
lature and  the  national  Legislature.  So  far  as  the  national  Legislature  is  concerned,  we 
have  no  control  over  it.  but  so  far  as  the  State  Legislature  is  concerned,  we  have,  and  we 
could  put  these  limitations  on  them  if  we  saw  fit.  Btit  I  wish  to  call  the  attenion  of  the 
Convention  to  some  material  distinctions  between  the  character  of  the  services  rendered 
by  these  representatives  in  city  councils,  the  functions  they  perform,  and  those  per- 
formed by  members  of  the  State  Legislature,  for  instance. 

In  the  first  place,  we  have  a  provision  in  the  State  Constitution  that  the  Legisla- 
ture cannot  create  any  State  debt  at  all,  whilst  these  city  councils  can  create  debt.  The 
object  of  the  provision  is  to  get  conservatism  in  the  city  council  as  a  source  of  protec- 
tion to  the  property  interests. 

That  is  one  distinction,  that  these  city  councils  can  create  debts  to  IS  per  cent,  of 
the  assessed  value  of  the  real  estate  in  the  city.  The  power  of  these  cities  to  create 
debts  is  based  upon  real  estate,  and  real  estate  alone,  and  as  I  have  stated  before,  the 
Legislature  cannot  create  any  public  debt  at  all. 

Another  distinction  is  that  whenever  one  of  these  councils  creates  a  debt  it  is  prac- 
tically a  lien,  just  as  much  so  as  a  deed  of  trust  of  record,  upon  every  piece  of  real 
estate  in  the  city.  It  can  be  enforced  by  the  judgment  of  the  cotirt.  The  court  may 
issue  a  mandamus  to  the  city  council  to  sell  every  piece  of  real  estate  in  the  city  to  pay 
that  debt.  Xo  such  power  pertains  to  the  Legislature.  Even  if  they  could  create  a 
debt,  there  is  no  power  to  enforce  that  debt  against  the  State  against  its  own  consent. 
The  owner  of  personal  property  can  move  his  property  out  of  the  city  and  absolutely 
escape  the  payment  of  these  debts. 

The  gentleman  referred  to  by  the  gentleman  from  Winchester  (Mr.  Harrison)  as 
the  largest  income  tax  payer  in  his  city  can  move  out  between  two  suns,  and  leave  the 
real  estate  holders  with  the  bag  to  hold. 

Mr.  Harrison:    The  real  estate  owner  can  sell  out. 

Mr.  Barbour:  Yes;  but  he  sells  out  subject  to  the  burden  of  the  debt  that  is  already 
created,  and  therefore  it  aft'ects  the  A'alue  of  his  real  estate.  It  is  a  very  material  dis- 
tinction: and  it  is  nothing  but  fair  and  just  that  the  owners  of  real  estate  in  the  city, 
who  have  ultimately  to  bear  the  burden  of  the  debt  created  by  the  city  councils,  should 
at  least  have  some  voice  in  the  creation  of  those  debts. 

That  is  the  idea  in  providing  that  the  real  estate  owners  shall  compose  the  upper 
branch  of  the  council.  They  are  not  elected  by  real  estate  owners  entirely.  They  are 
elected  by  all  the  voters,  but  the  only  requirement  is  that  they  shall  be  the  owners  of 
real  estate. 

I  think  I  have  pointed  out  at  least  some  distinctions  which  differentiate  the  mem- 
bers of  the  city  councils  from  the  members  of  the  State  Legislattire. 

I\Ir.  Robertson:    Mr.  President.  I  would  not  say  anything  about  this  matter  except 


2766  DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 

that  I  represent  here  a  city  that  is  deeply  interested  in  this  question.  I  believe  Alex- 
ander Pope  was  the  first  man  who  said — 

"Let  fools  for  forms  of  government  contest; 
That  which  is  best  administered  is  best." 

One  of  the  distinguished  gentlemen  in  this  body  has  reiterated  that  sentiment  with  a 
great  deal  of  eloquence,  in  a  speech  made  heretofore,  and  I  think  there  is  a  great  deal  of 
truth  in  it.  If  there  is  anything  for  which  our  Anglo-Saxon  race  is  distinguished  from 
other  races,  it  is  in  my  opinion,  that  it  does  not  act  on  theories  in  regard  to  govern- 
ment. Our  English  ancestors  to  this  day  go  by  practical  experience,  and  never  change 
anything  until  practical  experience  shows  them  they  ought  to  make  the  change.  I  do 
not  care  how  much  the  gentlemen  may  theorize  here  about  what  is  the  best  and  most 
conservative  form  of  government  for  our  cities,  we  must  do  as  the  gentleman  from 
Richmond  (Mr.  Meredith)  in  his  fine  arguments  on  this  question,  has  done,  we  must 
look  at  the  practical  experience  of  these  cities  in  our  Commonwealth,  before  we  can 
determine  what  we  are  going  to  put  into  this  Constitution  with  reference  to  this  ques- 
tion. 

I  agree  with  every  word  he  says,  I  will  state  here  that  I  am  in  favor  of  the  amend- 
ment that  the  gentleman  from  Winchester  (Mr.  Harrison)  proposes  to  offer  with  reference 
to  two  chambers  of  the  council,  but  that  is  not  the  subject  of  consideration  now.  I  wish 
briefly  to  enter  my  protest  against  the  idea  that  you  will  get  a  more  conservative  form 
of  government  in  the  cities,  if  you  have  two  chambers  by  requiring  as  a  qualification 
for  membership  in  the  upper  chamber  of  the  council,  the  owning  of  real  estate. 

In  addition  to  what  the  gentleman  from  Richmond  has  so  well  said  about  the  diffi- 
culty of  getting  good  men  to  go  into  the  councils  and  as  to  the  fact  that  we  have  to  get 
the  best  men  we  can,  looking  at  the  individual  and  at  his  character  and  education,  and 
not  at  what  he  owns.  I  wish  to  call  the  attention  of  the  Convention  to  the  fact  that  in 
modern  times  the  owning  of  real  estate  has  ceased  to  be  of  the  importance  it  used  to  be 
in  old  times.  I  think  a  good  deal  of  the  theorizing  these  gentlemen  have  indulged  in,  is 
due  to  the  fact  that  before  they  came  to  the  Convention,  they  may  have  undertaken  as 
I  did,  to  read  over  to  some  extent  the  debates  of  the  Convention  of  1829-30.  Our  ances- 
tors had  a  great  regard  for  the  holding  of  real  estate.  It  was  an  old  feudal  idea, 
handed  dovv^n  from  our  English  ancestors,  that  the  man  who  owned  land  was  worthy  to 
be  a  soldier  and  called  to  war  and  was  therefore  a  good  citizen.  It  was  a  part  of  the 
military  system  of  ancient  times. 

I  respectfully  submit  that  the  idea  that  the  mere  holding  of  land  makes  a  man  con- 
servative, is  not  necessarily  true.  In  the  cities  lots  are  the  subject  of  speculation.  They 
have  a  market  value  in  every  city,  and  they  change  hands  as  rapidly  as  stocks  and 
bonds.  The  lowest  and  most  ignorant  man  may  invest  his  money  in  a  town  lot  for  the 
purpose  of  speculation,  and  become  thoroughly  qualified  under  this  clause,  to  become 
one  of  the  dignified  aldermen  of  a  city,  to  legislate  upon  the  affairs  of  the  city,  and  he 
may  sell  that  lot  a  year  after,  and  put  his  money  into  something  else.  The  character 
of  the  man  has  nothing  in  the  v/orld  to  do  with  the  kind  of  property  in  which  he  invests 
his  paoney. 

Mr.  George  K.  Anderson:  The  same  gentleman  v.-ho  invests  his  money  in  the  lot 
would  be  eligible  without  the  lot,  would  he  not? 

Mr.  Robertson:  I  know  it,  but  I  say  you  do  not  get  any  better  man  by  that.  I  am 
arguing  that  it  is  the  character  of  the  individual  you  elect,  and  not  the  kind  of  invest- 
ments he  makes.  Real  estate  is  on  the  same  footing  with  any  other  investment,  prac- 
tically because  it  is  the  subject  of  speculation,  and  changes  from  one  man  to  another 
much  more  rapidly  than  it  did  in  old  times. 

Mr.  George  K.  Anderson:  Do  you  think  we  get  any  worse  men  because  we  make 
them  hold  real  estate? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2767 


Mr.  Robertson:  I  think  frequently  you  would.  You  would  exclude  good  men  and 
limit  our  choice.  The  gentleman  from  Richmond  has  shown  so  conclusively  how  that 
would  work.  I  do  not  care  to  discuss  further  that  feature  of  it.  I  am  simply  trying  to 
show  that  you  do  not  necessarily  get  conservative  men  by  this  provision. 

There  is  another  consideration  about  this  matter  that  strikes  me  with  force.  We 
have  abandoned  here  in  our  tax  article  the  idea  of  equality  and  uniformity  of  taxation. 
The  committee  thought  they  had  good  reasons  for  doing  it.  I  was  opposed  to  that,  but 
of  course  I  have  to  submit  to  the  majority  in  this  Convention.  We  have  adopted  here 
as  a  theory  of  this  government  that  the  State  shall  be  no  longer  tied  down  to  equality 
and  uniformity  in  taxation  as  a  general  proposition;  and  I  say  that  there  is  a  danger 
in  giving  real  estate  too  much  power  in  city  councils,  even  if  men  hold  it  permanently. 
How  easy  it  would  be,  if  in  a  city  council  there  is  a  predominating  influence  of  real 
estate  to  put  a  greater  burden  of  taxation  upon  people  who  do  not  own  real  estate. 

Mr.  Brooke:  With  the  other  branch  of  the  people  represented  by  people  who  do 
not  own  real  estate,  how  in  the  world  can  one  branch  impose  that  greater  burden  of  tax- 
ation? 

Mr.  Robertson:  There  may  be  a  great  many  real  estate  owners  in  the  other  branch. 
You  have  one  branch  where  they  all  have  to  be  owners  of  real  estate  and  the  other  one 
you  do  not  know  who  you  are  going  to  have.  Suppose  a  large  number  of  the  lower 
branch  are  real  estate  owners  and  all  the  upper  chamber  are  real  estate  owners.  It  cer- 
tainly would  result  in  that  danger.  The  gentleman  seems  to  have  forgotten  that  you  do 
not  prohibit  real  estate  men  from  sitting  in  the  lower  branch.  A  number  of  them  may 
own  real  estate,  and  I  say  there  is  a  great  danger  in  that  when  we  abandon  the  idea  of 
inequality  and  uniformity,  because  you  can  classify  taxes  on  the  basis  of  real  estate  and 
personal  property,  and  if  these  real  estate  men  who  have  tangible  property  which  can 
be  reached,  get  a  predominating  influence  in  the  council,  they  might  decide  to  shift  the 
burden  of  taxation  on  to  the  merchants,  a  large  number  of  whom  in  every  city  do  not 
own  one  foot  of  land. 

Merchants  do  not  want  to  invest  their  money  in  real  estate.  They  want  to  keep  it 
free  for  the  purpose  of  carrying  on  their  business;  and  it  is  the  tendency  in  our  cities 
for  the  men  who  are  building  up  the  cities  and  doing  the  greatest  work  for  the  cities 
not  to  own  the  real  estate  in  which  they  are  conducting  their  business;  and  yet  every 
one  of  those  men  would  be  precluded  from  sitting  in  the  upper  branch  of  the  council  if 
we  adopt  any  such  measure  as  this. 

I  want  to  make  a  few  remarks  in  regard  to  the  local  aspect  of  this  matter,  before 
I  take  my  seat,  because  it  is  on  that  account  that  I  take  an  interest  in  it.  Gentlemen 
are  theorizing  here  about  what  is  the  best  government  for  our  cities.  I 
have  no  doubt  the  gentleman  from  Norfolk  (Mr.  Brooke)  can  be  thoroughly 
relied  on  to  establish  the  best  government  for  the  city  of  Norfolk,  although 
with  all  due  respect  to  my  friend,  I  think  he  has  read  too  much  about  the  theory 
of  city  government,  and  has  not  looked  enough  at  the  practical  results.  I  think 
the  gentleman  from  Richmond  (Mr.  Meredith)  has  come  in  closer  contact  with 
the  city  council  of  his  own  city  than  has  the  gentleman  from  Norfolk,  because,  as  I 
recollect  it,  he  was  city  solicitor  of  the  city  of  Richmond  for  a  long  number  of  years, 
and  knew  the  practical  workings  of  the  system.  But  in  my  town  real  estate  is  the  sub- 
ject of  speculation  up  to  this  day,  although  the  boom  has  collapsed  there.  I  am  sorry 
to  say,  however,  that  the  boom  is  slowly  reviving  in  real  estate.  The  gentleman  from 
Alleghany  (Mr.  Anderson),  I  think,  was  there  at  one  time,  and  if  he  will  recall  some  of 
his  past  experiences,  he  will  know  what  the  situation  is  likely  to  be  there.  He  has  gone 
to  a  little  village  now,  and  he  thinks  he  can  run  a  city.  (Laughter.) 

I  remember,  there  was  once  an  ignorant  Irishman  in  my  city  who  bought  a  lot,  I 
think,  for  $500.  If  my  memory  serves  me  right,  I  drew  the  deed  to  it,  and  that  Irish- 
man, although  he  could  hardly  read  or  write — I  do  not  think  he  could  read  or  write — 
held  that  lot  until  it  was  worth  $35,000,  and  he  sold  it  for  that  price.    He  was  so  en- 


2768 


DEBATES  OF  THE  COJfSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


couraged  by  the  idea  that  real  estate  was  a  good  thing  that  whenever  he  saved  any 
money  he  put  it  into  real  estate.  He  would  have  been  a  fine  man  to  put  in  as  one  of 
the  Board  of  Aldermen  of  our  city. 

I  simply  use  this  as  an  illustration  to  show  that  you  cannot  form  a  theory  here 
and  work  it  into  our  Constitution  that  will  fit  every  city  in  this  Commonwealth.  I  do 
not  like  to  appeal  to  a  question  of  popular  prejudice,  but  I  do  say  that  in  framing  this 
Constitution,  where  a  matter  is  simply  a  local  matter,  the  wishes  of  the  people  of  that 
locality  should  be  given  some  weight.  It  is  simply  a  local  matter,  as  the  gentleman 
from  Winchester  said,  where  a  local  community  pays  its  own  taxes  and  does  it  for 
local  purposes.  And  where  the  people  have  become  used  to  a  certain  kind  of  govern- 
ment, and  prefer  that  government,  there  is  no  sense  in  theorizing  about  what  is  a  good 
kind  of  government  for  them,  and  ramming  down  the  throats  of  those  people  the  theories 
of  the  gentleman  from  Norfolk  or  the  gentleman  from  these  different  villages  around  in 
this  Commonv/ealth.  The  gentleman  from  Culpeper  and  the  gentleman  from  Clifton 
Forge,  and  other  gentlemen  on  this  floor,  want  to  undertake  to  say  to  us  what  is  a  good 
thing  for  our  people  to  have  in  the  shape  of  a  government,  when  vv^e  have  to  pay  the 
taxes,  and  we  have  the  practical  experience  as  to  what  we  want  there. 

My  people  do  not  want  to  have  this  Constitution  force  a  charter  upon  them, 
because  some  gentlemen  here  are  high  up  in  the  theories  of  government.  Some  of 
them  are  equal  to  the  Abbe  Eeyeres,  who  used  to  go  into  the  French  Convention  every 
morning  with  a  new  Constitution  in  his  pocket.  (Laughter.) 

The  theories  of  these  gentlemen  are  perfectly  beautiful.  If  we  were  sitting  here 
to  listen  to  theories  on  municipal  governments,  I  would  be  delighted  to  hear  them; 
but  when  they  try  to  come  here  and  put  them  into  practical  shape  and  force  them  upon 
my  people  who  object  to  them,  I  desire  to  enter  my  protest. 

I  believe  the  argument  of  the  gentleman  from  Richmond  is  as  sound  as  it  can  pos- 
sibly be,  that  it  will  do  a  gTeat  harm  to  every  city  in  this  Commonwealth  to  adopt  this 
old  theory  about  conservatism  and  real  estate  following  it.  I  hope  the  Convention  will 
do  what  the  Committee  of  the  Whole  did — keep  this  provision  out  of  this  section. 

Mr.  Hatton:  Mr.  President,  I  will  detain  the  Convention  only  a  moment,  and  for 
detaining  it  for  only  that  brief  period  I  will  apologize  by  saying  that  it  is  only  my 
intense  interest  in  this  matter  that  makes  me  arise  at  all.  I  do  not  think,  Mr.  President, 
that  any  man  who  has  ever  had  any  experience  with  the  affairs  of  a  municipality  will 
deny  the  proposition  that  there  is  great  need  for  having  an  increased  conservatism  in 
the  governing  bodies  of  these  sub-divisions  of  our  Commonwealth. 

There  must  be  some  theory  about  all  questions  of  this  character,  but  I  submit  that 
there  has  been  no  more  practical  question  brought  before  this  Convention  than  this: 
Shall  the  people  who  are  vested  with  the  power  to  tax  and  to  impose  the  burdens  of 
taxation  be  made  to  feel  These  burdens  themselves?  There  is  the  question,  and  if 
there   is  any  theorizing  about  that,  then  I  do  not  know  what  could  be  called  practical. 

That,  Mr.  President,  is  an  eminently  practical  question.  There  is  no  more  prac- 
tical question  than  the  question  of  taxation  and  who  is  to  bear  it,  and  who  is  to  impose 
it. 

This  amendment  which  has  been  offered  here  by  the  gentleman  from  Norfolk  (Mr. 
Brooke)  as  a  part  of  this  report,  is  not  offered  upon  any  theory  that  a  man  who  owns 
$1,000  worth  of  real  estate  is  any  more  honest  or  in  any  way  superior  to  any  other  man. 
That  is  not  the  foundation  of  it.  The  reason  of  it  does  not  lie  there;  but  it  is  based 
upon  this,  that  if  any  set  of  men  are  to  impose  burdens,  and  75  per  cent,  of  those  bur- 
dens is  to  be  borne  by  real  estate,  if  those  men  happen  to  own  some  of  that  real  estate, 
they  will,  by  means  of  such  ownership,  be  brought  to  a  realizing  sense  of  their  responsi- 
bility in  imposing  those  taxes. 

Now,  there  is  the  question,  and  that  is  the  whole  theoy  of  it,  that  a  man  who  owns 
$1,000  of  real  estate  will  be  more  thoughtful,  will  be  more  conservative,  will  look  deeper 
into  the  subject  of  imposing  taxes,  the  burdens  of  which  are  to  be  borne  by  real  estate. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  YIEGIXIA. 


2769 


than  will  the  man  who  owns  no  real  estate.  Let  any  man  on  this  floor  deny  that  pro- 
position, if  he  can.  3,Ir.  President,  that  proposition  cannot  be  successfully  refuted  by 
any  man  who  knows  the  first  thing  abotit  the  tendencies  of  human  nature.  Any  man 
should  know  that  by  instinct.    It  is  axiomatic. 

Now,  there  is  the  foundation  upon  which  this  theory  rests,  and  it  is  eminently  prac- 
tical. It  is  a  condition  which  confronts  every  municipality  in  this  Commonwealth 
to-day,  and  it  is  one  of  the  burning  questions  with  which  its  people  have  to  deal.  How 
do  the  gentlemen  attempt  to  answer  the  argument  for  this  provision  in  the  committee's 
report?  The  gentleman  from  Richmond  (I\Ir.  Meredith)  says  that  this  provision  should 
not  obtain,  because  it  is  difficult  to  get  men  in  your  councils.  It  is  difficult,  and  to  that 
extent  I  agree  with  the  gentleman  from  Richmond;  but  my  agreement  with  the  gentle- 
man from  Richmond  stops  right  there.  I  respectfully  submit  that  such  a  provision  as 
this  will  make  it  easier  to  get  good  men  in  your  councils,  instead  of  rendering  it  more 
diffictilt,  as  the  gentleman  from  Richmond  contends. 

Now,  gentlemen,  assertion  is  not  argument.  I  assert  that  proposition,  and  if  I  can- 
not give  some  good  reason  for  it,  then  do  not  accept  it.  :My  reason  for  it  is  this:  In 
your  councils,  as  they  are  now  constituted,  you  cannot  get  good  men,  because  when 
those  men  go  on  those  councils  and  devote  their  time  and  their  talents  to  it,  they  find 
that  their  time  and  their  talents  are  wasted,  because  they  are  ustially  in  a  minority, 
and  because  the  men  on  those  councils  who  are  not  good  men  overrule  them  by  their 
votes.  That  is  why  you  cannot  get  them  to  go  there,  because  v\-hen  you  get  a  good  man, 
and  he  gives  up  his  time,  and  his  labor,  then  when  he  gets  to  your  council  meeting  he 
finds  himself  in  the  minority  constantly,  and  his  time  is  wasted,  and  yet  he  has  to  share 
the  responsibility  for  the  improper  acts  of  the  ignorant  or  corrupt  men  who  may  be  in 
the  majority,  and  usually  are  in  the  majority. 

The  gentleman  from  Richmond  also  says  we  should  not  have  it.  because  it  finds  no 
parallel  in  the  legislative  branch  of  our  State  government.  He  is  attempting  to  draw  an 
analogy  between  these  councils,  the  legislature  of  your  cities,  and  your  State  Legisla- 
ture; and  in  the  very  next  breath  he  admits  that  there  is  no  such  analog^-,  by  his  state- 
ment that  he  has  on  the  floor  of  this  Convention  advocated  restrictions  upon  city  coun- 
cils that  he  would  not  advocate  if  they  applied  to  the  State  Legislature.  Then,  I  say, 
if  he  advocates  on  this  floor  restrictions  to  be  imposed  upon  th.ose  councils  that  he  is 
not  willing  to  impose  upon  the  State  Legislature,  he  thereby  admits  the  absence  of 
such  analogy  and  his  argument  against  this  provision  that  no  such  provision  has  been 
made  applicable  to  your  State  Legislature  is  fully  and  completely  refuted  by  his  own 
admissions  to  the  effect  that  he  has  recognized  such  want  of  analogy  by  voting  to 
impose  restrictions  on  these  councils  that  he  would  not  vote  to  impose  on  the  State 
Legislature. 

Mr.  President,  this  question  should  not  be  decided  upon  any  assertion  from  some 
delegate  upon  this  floor  that  some  man  he  chooses  to  pick  out  in  his  community  would 
be  disqualified  by  it.  It  is  too  broad  a  question  to  be  decided  upon  any  such  considera- 
tion as  that.  The  gentleman  from  Winchester  (Mr.  Harrison)  has  told  you  that  he  has 
in  his  community  a  gentleman  who  pays  $15,000  in  taxes,  and  yet  does  not  own  real 
estate  of  the  value  of  $1,000,  and  would  therefore  be  disqualified  from  its  city  council. 
I  respectfully  submit  that  such  a  statement  as  that  is  not  a  fair  one.  because  that  gen- 
tleman to  whom  he  refers  would  be  qualified  for  election  to  the  council  under  this  pro- 
vision. He  might  not  be  qualified  on  one  branch,  but  the  gentleman  has  lost  sight  of 
the  fact  that  he  would  be  qualified  on  the  other  branch,  and  the  other  branch  would 
have  equal  power  with  the  branch  from  which  he  was  disqualified. 

:\Ir.  Harrison:  That  one  branch  would  have  the  power  of  blocking  legislation 
absolutely. 

Mr.  Hatton:  And  so  would  the  other  branch  have  the  power  to  block  legislation. 
Therefore,  if  the  gentleman  who  paid  $15,000  worth  of  taxes  and  owned  no  real  estate 
was  on  the  most  numerous  branch  of  the  city  council,  he  could  block  any  legislation  by 
the  freeholders'  branch  that  might  be  detrimental  to  him. 


2770  DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Harrison:  What  I  wanted  to  call  your  attention  to  was  that  the  free-holders 
could  absolutely  prevent  legislation  by  being  in  control  of  one  branch  of  the  Legislature. 
I  did  not  say  that  gentleman  pays  $15,000  taxes.  I  say  he  pays  a  tax  on  an  income  of 
$15,000. 

Mr.  Hatton:  It  would  make  no  difference  if  he  paid  $15,000  in  taxes,  the  argument 
is  not  a  good  one.  It  is  also  advanced  as  an  argument  against  this  provision  of  the 
committee  that  the  merchants  of  your  community  are  not  generally  real  estate  owners, 
and  the  gentlemen  made  an  argument  against  themselves  when  they  made  that  state- 
ment. What  is  the  reason  why  the  merchants  do  not  generally  hold  real  estate?  It  is 
because  real  estate  is  now  bearing  more  than  its  share  of  the  burdens  of  taxation.  The 
man  who  holds  $1,000  worth  of  real  estate  has  to  pay  more  taxes  than  the  man  who  holds 
$1,000  in  bonds  or  other  personal  property  that  can  be  concealed  from  the  tax  assessor. 

Mr.  Meredith:    They  are  no  higher  than  they  are  on  personal  property. 

Mr.  Hatton:  They  are  higher  when  we  come  to  consider  the  way  that  real  and 
personal  property  are  assessed;  and  for  that  very  reason,  gentlemen,  we  want  this  ele- 
ment of  conservatism  in  these  bodies  which  impose  the  taxes.  It  simply  shows  you  that 
the  taxes  as  they  are  now  imposed  by  people  who  owns  no  real  estate  have  piled  up  the 
burdens  upon  real  estate  to  such  an  extent  that  the  average  man  cannot  afford  to  hold  it. 
So  this  argument  is  an  argument  in  favor  of  the  proposition  rather  than  against  it. 

Mr.  President,  I  hope  the  Convention  will  adopt  this  provision  in  the  report  of  the 
Committee  on  tne  Government  of  Cities  and  Towns.  There  is  an  additional  reason  for 
adopting  it,  in  view  of  the  report  of  your  Committee  on  Taxation  and  Finance.  Taxa- 
tion in  this  State  is  now  controlled  by  the  rule  of  equality  and  uniformity,  but  your 
Committee  on  Taxation  has  thrown  down  that  barrier,  and  the  only  limitation  in  this 
Constitution  we  are  now  framing  will  be  the  limitation  of  classification.  I  want  to  ex- 
plain to  you  why  I  say  there  is  an  additional  reason  for  this  provision,  in  view  of  that 
recommendation  of  the  Committee  on  Taxation.  As  the  law  now  is,  or  rather  as  it  will 
be  if  the  Constitution  should  be  adopted,  with  this  recommendation  of  the  Committee  on 
Taxation,  your  city  councils  and  your  boards  of  supervisors  in  the  counties,  I  take  it, 
will  be  governed  in  their  classifications  by  the  classnfications  which  may  be  made  by 
the  General  Assembly.  I  am  not  positive  about  that  proposition,  but  from  the  trend  of 
the  decisions  of  the  Court  of  Appeals,  I  am  inclined  to  think  that  would  be  the  result. 
But  suppose  that  after  ten  years,  as  your  report  on  taxation  permits,  the  Legislature 
should  see  fit  to  segregate  the  subjects  of  taxation,  and  should  take  certain  subjects  of 
taxation  for  State  purposes,  and  should  relegate  other  subjects  of  taxation  for  local  pur- 
pose. Then,  I  submit,  that  these  local  legislative  and  tax  imposing  bodies  could  make 
any  classification  they  saw  fit,  and,  no  matter  how  unjust  or  oppressive  to  certain  classes 
of  property,  they  would  only  be  restrained  in  making  that  classification  by  the  equality 
clause  in  the  fourteenth  amendment  of  the  Constitution  of  the  United  States. 

Mr.  President,  I  regret  that  I  have  had  to  detain  the  Convention  so  long,  but  I  do 
ask  that  the  members  from  the  counties  on  this  floor  will  help  to  give  to  the  cities  this 
element  of  conservatism  in  their  local  government. 

Mr.  Brooke:  I  feel,  Mr.  President,  that  this  question  has  been  probably  as  fully 
discussed  as  there  is  any  necessity  for  it  being  discussed,  and  therefore  I  shall  under- 
take to  delay  the  Convention  only  a  few  moments.  There  are,  however,  some  things 
that  have  been  said  in  the  argument  on  the  other  side,  which  to  my  mind  are  so  mis- 
leading, though  of  course  not  intentionally  so,  that  a  few  words  of  explanation  ought  to 
be  made  from  this  side  of  the  case. 

The  gentleman  from  Roanoke  (Mr.  Robertson)  is  particularly  hard  upon  theorists. 
He  is  very  critical  of  any  man  who,  in  presenting  to  a  Convention  of  gentlemen  who 
are  met  together  for  the  purpose  of  forming  an  organic  law,  undertakes  to  be  guided 
by  any  principles  whatever,  because  in  matters  of  that  sort  there  is  no  difference  be 
tween  principle  and  theory.  If  we  are  to  come  here  and  form  our  organic  law  without 
any  reference  to  the  wisdom  of  our  fathers,  without  any  reference  to  any  principles  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2771 


government,  then  we  will  suit  the  gentleman  from  Roanoke.  We  are  not  attempting  to 
force  on  the  city  of  Roanoke  any  government  which  she  does  not  want.  We  are  doing 
just  exactly  in  respect  to  these  smaller  governments,  what  this  Convention  of  theorists 
itself  has  done  with  regard  to  the  State  government.  This  Convention  of  theorists, 
gentlemen,  has  determined  that  the  State  government  should  have  a  judicial  department, 
a  legislative  department  and  an  executive  department.  The  Committee  on  Cities  and 
Towns  says  that  these  smaller  governments  should  be  subdivided  in  the  same  way.  This 
Convention  of  theorists  have  said  that  the  State  legislative  department  shall  consist  of 
a  Legislature  divided  into  two  parts,  a  Senate  and  House  of  Delegates.  The  Committee 
on  Cities  and  Towns  have  said  that  the  legislative  department  of  these  small  govern- 
ments should  also  have  two  branches. 

We  are  simpiy  suggesting  to  the  Convention  to  put  the  government  of  cities  and 
towns,  in  intelligent  form,  upon  the  same  basis  upon  which,  in  their  wisdom,  they  have 
sought  to  put  the  government  of  the  State  itself.  Now,  if  that  be  theory,  make  the  most 
of  it. 

The  gentleman  from  Richmond  (Mr.  Meredith)  says  that  one  of  his  great  objections 
to  this  particular  proposition  is  that  we  have  difficulty  enough  in  getting  good  men  to 
serve  upon  the  council;  that  men  with  property  will  not  serve  on  the  council;  and  that 
if  we  put  any  disqualification  upon  them,  it  will  limit  the  choice.  I  ask  any  man  who 
has  been  familiar  with  the  government  of  cities  if  it  is  not  at  least  true  in  some  degree 
that  the  objection  that  men  of  substance  have  to  serving  in  the  councils  is  that  they  are 
not  willing  to  bear  the  unjust  responsibility  of  vicious  legislation,  when  they  know  that 
they  will  not  have  influence  enough  in  the  councils  to  control  the  legislation.  How 
many  of  us  who  are  here  to-day,  gentlemen,  would  have  hesitated  to  come  if  we  had 
realized  what  a  responsibility  each  and  every  one  of  us  will  carry  away  from  here  be- 
cause of  things  which  are  done  in  this  Convention  that  we  think  are  dangerous  to  the 
liberties  and  destructive  of  the  interests  of  th-e  State.  But  if  you  segregate  this  con- 
servative influence  and  place  it  where  it  will  at  least  have  the  power  to  check  vicious 
legislation,  then  you  remove,  to  my  mind,  very  largely,  the  objection  which  men  of  sub- 
stance will  have  to  serving  in  the  city  councils.  They  will  then  feel  that  they  will 
have  the  power,  and  having  the  power  they  are  willing  to  assume  the  responsibility, 
over  legislation  which  occurs  there;  but  as  they  now  stand,  no  man  who  values  his  repu- 
tation or  his  peace  of  mind  is  willing  to  put  himself  in  a  position  where  he  is  going  to 
be  held  responsible  for  vicious  legislation  and  have  no  power  to  check  it. 

Now,  gentlemen,  I  have  nothing  more  to  say  on  this  subject  except  that  after 
laborious  consideration  the  Committee  on  Cities  and  Towns  have  submitted  this  propo- 
sition to  the  Convention  along  the  lines  of  well  recognized  principles  of  city  government 
and  of  government  at  large.  Your  committee  feel  that  it  is  one  of  the  most  essential 
points  in  their  report.  They  feel  that  the  report  would  be  largely  emasculated  if  this 
provision  is  not  allowed  to  go  back  in  it  as  it  was  originally  presented  by  the  committee. 

The  President:  The  Secretary  will  read  the  amendment  offered  by  the  gentleman 
from  Norfolk  city  (Mr.  Brooke),  chairman  of  the  committee. 

Insert  after  the  word  "  sub-division,"  in  line  9,  the  words,  "  The  less  numerous 
branch  of  the  said  council  shall  be  composed  of  freeholders  who  shall  own  a  freehold 
estate  in  real  estate  situated  in  said  city  of  an  assessed  value  of  at  least  one  thousand 
dollars." 

The  President:  The  question  is  upon  agreeing  to  the  amendment  proposed  by 
the  gentleman  from  Norfolk  city. 

The  question  having  been  taken,  the  result  was  announced — ayes  21,  noes  40. 
The  amendment  was  rejected. 

Mr.  Harrison:  I  want  to  offer  an  amendm^ent  to  this  section  by  adding  after  the 
word  "of"  in  line  2,  the  words  "one  or"  so  that  it  will  read:  "There  shall  be  in  every 
city  a  city  council,  composed  of  one  or  two  branches." 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Winchester  (Mr.  Harrison). 


2772  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


The  ayes  and  noes  were  ordered,  and  resulted — ayes  24,  noes  36. 

The  amendment  was  rejected. 
Mr.  Harrison:    I  offer  this  amendment: 

After  the  word  "sub-division"  in  line  9,  insert  the  following  "  but  in  any  city  under 
twenty-five  thousand  population  the  General  Assembly  may  permit  the  council  to  con- 
sist of  one  branch." 

s 

Mr.  Hatton:  I  move  to  amend  that  amendment  by  striking  out  the  words  "twenty- 
five"  and  inserting  "  ten." 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Portsmouth  (Mr.  Hatton). 

Mr.  Robertson:  I  hope  the  last  amendment  will  not  be  adopted.  It  antagonizes 
my  city  without  any  cause  for  it  at  all.  I  do  not  see  why  we  should  try  to  load  the 
Constitution  down  more  than  has  already  been  done. 

Mr.  Hatton:  I  would  suggest  to  the  gentleman  that  by  putting  it  at  25,000  he  is 
antagonizing  my  city. 

Mr.  Robertson:    Why  can't  you  get  what  you  want  from  the  Legislature? 

Mr.  Hatton:  I  understand  that  the  gentleman  who  offers  the  amendment  has  only 
5,000  in  his  town.  I  will  call  the  attention  of  the  Convention  to  the  fact  that  if  this 
provision  is  made  applicable  only  to  cities  of  25,000  inhabitants  it  can  only  apply  to  two 
cities  in  this  Commonwealth,  the  city  of  Norfolk  and  the  city  of  Richmond.  We  will 
be  put  in  the  position  of  making  a  Constitution  for  governing  cities  and  having  it 
really  apply  to  only  two  cities  of  the  Commonwealth. 

Mr.  Barbour:  Mr.  President,  I  hope  that  the  Convention  will  vote  down  both  of 
these  amendments.  I  realize  the  fact  that  I  have  been  criticised  to  some  extent  for 
taking  an  active  interest  in  this  report,  because  I  am,  as  the  gentleman  from  Roanoke 
says,  a  villager.  It  seems  to  me  that  is  a  criticism  which  should  be  addressed  to  the 
President  of  this  Convention  for  having  assigned  me  upon  this  committee,  rather  than 
to  me.  i  did  not  seek  assignment  on  this  committee.  But  when  I  was  assigned  to  it, 
I  undertook  to  discharge  the  duties  imposed  upon  me  to  the  very  best  of  my  ability. 
If  this  amendment  is  adopted  it  will  interfere  with  almost  every  section  of  this  report. 
For  instance,  in  dealing  with  the  veto  power  the  report  prescribes  what  shall  be  done 
with  the  veto,  that  it  shall  be  returned  to  first  one  body  and  then  to  the  other.  If  we 
adopt  either  one  of  these  amendments  it  will  throw  the  entire  report  out  of  joint.  In 
addition  to  that,  the  idea  of  the  committee  is  to  have  these  powers  granted  by  general 
law.  If  it  is  really  the  idea  and  purpose  of  this  Convention  to  have  that  principle 
carried  out  it  will  be  necessary  that  these  general  powers  shall  be  conferred  on  councils 
in  broad  terms.  If  that  is  to  be  done  it  is  essentially  necessary  that  they  should  have 
proper  checks  and  balances  thrown  around  them,  and  in  order  to  avoid  any  abuse  of 
those  powers  it  seems  to  me  it  is  necessary  that  there  should  be  two  bodies,  that 
there  should  be  two  branches  of  the  council,  with  power  in  each  to  hold  the  other  in 
check,  so  as  to  insure  conservatism  in  the  consideraetion  of  measures  brought  before 
them.  We  hardly  realize  the  extent  to  which  people  are  interested  in  conservatism  of 
these  city  councils. 

In  the  last  twenty-five  years  I  suppose  that  the  value  of  franchises  which  are  con- 
ferred by  these  councils  have  increased  tenfold.  I  suppose  that  the  franchises  in  a  city 
of  10,000  inhabitants  are  worth  as  much  to-day  as  those  of  a  city  of  100,000  inhabitants 
fifteen  years  ago.  It  is  just  as  essential  that  the  interests  of  these  growing  cities — these 
young  cities — of  course  I  do  not  include  Winchester  in  that  category,  because  it  is  not  a 
growing  city,  it  is  a  finished  town  and  it  don't  make  much  difference  what  we  do  with  it. 
I  hope  that  both  these  amendments  will  be  voted  down  and  the  report  of  the  committee 
adopted. 

Mr.  Harrison:  Mr.  President,  I  want  to  say  that  if  the  gentleman  had  studied  the 
various  charters  of  these  cities  instead  of  reading  the  books  issued  by  the  Municipal 


DEBATES  OF  THE  COXSTITUTIOVAL  COXTEXTIOX  OF  VIEGIMA. 


Reform  League  he  would  have  found  out  that  all  these  checks  and  balances,  about  which 
he  has  spoken,  are  found  in  the  charters  of  the  towns  where  they  have  only  one  branch 
of  the  council,  and  they  have  been  amply  protected.  In  the  city  of  Winchester  the 
council  is  composed  of  twelve  men,  of  whom  only  three  are  elected  each  year,  so  that 
there  are  nine  out  of  the  twelve  that  hold  over  from  year  to  year,  and  exercise  a  con- 
servative influence  in  the  council. 

Xow,  Mr.  President,  I  insist  there  is  no  reason  in  the  vrorld  vrhy  these  various  cities 
should  have  two  councils,  when  everything  necessary  is  accomplished  by  one  council, 
which  we  now  have.  We  have  all  the  necessary  checks  and  balances  that  the  gentle- 
man has  been  reading  about  and  theorizing  upon.  If  the  city  of  Portsmouth  desires  not 
to  be  affected  by  the  operation  of  this  provision,  I  will  willingly  vote  that  it  shall  be 
exempted  from  its  operation,  and  then  the  gentleman  (Mr.  Hattonj  can  have  a  constitu- 
tional provision  saying  that  he  shall  have  such  a  charter  as  he  wants,  but  I  submit  we 
ought  to  leave  the  various  localities  their  own  charters,  as  they  now  exist. 

Mr.  Robertson:  I  do  not  care  to  discuss  the  merits  of  this  matter  any  further.  I 
merely  desire  to  say  that  one-half  of  the  council  of  the  city  of  Roanoke  is  elected  at  a 
time  and  we  have  the  conservative  element  there.  We  have  no  trouble  in  our  city 
council.  We  do  not  have  charges  of  corruption.  It  is  suggested  to  me  by  my  friend 
from  Richmond  that  another  provision  of  the  Constitution  prohibits  the  giving  away  of 
franchises. 

We  have  a  growing  town.  We  have  a  different  kind  of  population  from  what  there 
is  in  other  cities  of  the  State.  Our  people  have  gotten  used  to  their  form  of  govern- 
ment, and  they  do  not  want  it  changed.  It  is  more  important  for  us  to  get  legislation 
through  our  council,  frequently,  than  it  is  to  prohibit  legislation.  The  different  towns 
and  cities  in  the  country  differ  in  that  regard.  Our  city,  as  the  gentleman  has  indi- 
cated, has  grown  tip  rapidly.  It  grew  up  in  a  night.  It  is  called  the  ]Magic  City.  We 
were  compelled  to  let  private  individuals  get  control  of  the  franchises  in  that  city.  It 
is  important  for  us  not  to  be  too  conservative.  We  desire  to  have  competition  against 
those  people  who  have  already  gotten  control  of  these  franchises,  and  the  more  difficult 
you  make  it  to  get  things  through  the  city  council,  the  worse  it  will  be  for  the  inhabi- 
tants of  that  city.  I  do  not  intend  to  cast  any  reflection  at  all  upon  the  gentlemen  who 
live  in  villages.  I  do  not  intend  to  say  for  one  moment  that  they  have  not  been  actuated 
by  honest  zeal  in  the  case  of  reform,  but  I  do  question  their  knowledge  and  experience 
about  cities.  They  are  governed  by  their  theories  in  regard  to  holding  land  out  in  the 
country.  I  consider  the  gentleman  from  Culpeper  one  of  the  best  friends  I  have  in  this 
Convention,  but  i  do  not  think  that  he,  who  spends  most  of  his  time  at  home  attending 
CO  his  large  law  practice,  knows  anything  about  the  conditions  in  the  city  of  Roanoke. 

'}lv.  James  W.  Gordon:  I  think  that  a  number  of  these  gentlemen  have  lost  sight 
of  the  fact  that  the  inhabitants  of  these  various  cities  are,  primarily,  citizens  of  Vir- 
ginia, to  guarantee  to  each  one  of  these  communities  such  a  form  of  government  as  is 
best  calculated  to  work  out  for  them  their  peace  and  safety.  It  has  been  said  by  these 
gentlemen  that  every  one  of  these  communities  ought  to  have  a  local  self-government.  I 
admit  that  they  ought  to  have  a  local  self-government.  But  how  ought  they  to  have  it? 
They  ought  to  have  it  on  the  broad  principles  established  by  all  the  States  of  this 
Union  for  the  government  of  these  communities.  There  is  not  a  single  one  of  these  gen- 
tlemen who  are  asking  for  a  single  branch  of  the  city  council  in  these  cities,  who  would 
be  willing  to  have  a  single  law  bearing  upon  one  of  the  citizens  of  this  State,  passed  by 
a  Legislature  of  the  State  composed  of  only  one  branch;  and  yet  they  stand  here  and 
ask  that  taxes  amounting  to  three  or  four  times  the  amount  of  money  that  is  ever 
expended  by  the  Legislature  of  Virginia  may  be  imposed  by  these  local  councils,  with- 
out the  consideration  which  it  is  necessary  to  give  it  by  having  it  go  before  two 
branches.  We  have  recognized,  in  the  legislative  report  which  has  been  adopted  by  this 
Convention,  the  principle  that  mature  and  wise  legislation  demands  that  each  proposi- 
tion coming  up  for  adoption,  which  is  to  affect  the  whole  people  of  the  Commonwealth, 


3774 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


shall  be  considered  in  two  houses,  in  order  to  secure  proper  and  conservative  action. 
That  is  exactly  the  principle  which  this  report  seeks  to  carry  out  in  regard  to  the  cities 
of  the  Commonwealth.  Why  should  not  a  city  with  5,000  inhabitants  have  the  same 
problems  and  the  same  issues  coming  before  its  council  that  comes  before  the  council  of 
a  city  of  25,000  inhabitants;  and  why  should  not  the  people  of  such  a  city  have  the  pro- 
tection which  we  give  to  the  larger  cities.  I  say,  Mr.  President,  that  the  State  of  Vir- 
ginia and  this  Constitutional  Conventional  owes  it  to  every  citizen  in  these  cities  to  pro- 
tect them  against  the  extravagance  which,  it  is  manifest,  has  too  often  characterized 
municipal  legislation  and  that  the  only  way  we  can  secure  the  proper  amount  of  con- 
servatism is  to  have  each  one  of  the  ordinances,  which  affect  the  people,  passed  under 
review  before  two  branches  of  the  council,  so  that  they  may  receive  proper  considera- 
tion and  that  one  may  be  a  check  upon  the  other.  It  is  not  only  in  matters  of  finance 
that  these  municipal  councils  are  called  upon  to  legislate.  They  have  the  power  to 
enact  a  large  body  of  criminal  law,  I  ask  the  gentlemen  of  this  Convention  when  they 
cast  their  votes  on  this  question,  to  consider  that  the  Commonwealth  has  conferred  upon 
these  councils  the  power,  to  a  large  extent  of  enacting  criminal  laws.  I  do  think  that 
the  State  of  Virginia  ought  to  see  that  each  one  of  these  communities  and  the  citizens 
thereof  are  protected  in  the  way  which  the  committee  has  provided  for  their  protection. 

The  x^resident:  The  question  is  on  agreeing  to  the  amendment  offered  by  the  gen- 
tleman from  Portsmouth  city  to  strike  out  the  words  "  twenty-five  "  and  insert  "  ten." 

Mr.  Hatton:    Mr.  President,  I  withdraw  that  amendment. 

The  President:  The  question  is  upon  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Winchester. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes,  27;  noes,  37. 
The  amendment  was  not  agreed  to. 

Mr.  Harrison:    I  now  move  to  make  it  ten  thousand  instead  of  twenty-five  thousand. 

Mr.  R.  Walton  Moore:  I  hope  that  will  be  done.  I  think  it  would  be  a  great  hard- 
ship to  impose  this  regulation  upon  a  city  like  Winchester,  in  the  face  of  the  protest  of 
the  people  and  of  its  representatives  here  upon  this  floor. 

Mr.  Barbour:  I  hope  it  will  not  be  done.  If  Winchester  is  not  a  finished  town  it 
will  have  10,000  inhabitants  in  a  very  short  while. 

Mr.  President,  I  trust  the  Convention  will  reject  the  motion  of  the  gentleman  from 
Frederick  (Mr.  Harrison)  and  decline  to  make  him  and  his  city  an  exemption  to  the 
constitutional  provisions. 

Mr.  Green:  Heine  says,  that  on  a  visit  to  Hell  he  found  that  the  mode  of  punish- 
ment there  adopted  consisted  in  seating  the  condemned  in  iron  pots,  along  which  small 
devils  passed  and  poured  shovels  of  burning  coals  over  the  culprits.  Among  these,  he 
saw  Socrates  and  observed  that  when  the  small  imps  shovelled  the  fiery  coals  on  him, 
he  cried  out  in  fearful  tones,  saying  "  Did  not  I  live  up  to  the  light  of  nature?  Was  I 
not  moral  and  upright  in  my  life  on  earth,  but  to  these  appeals  the  devils  replied, 
"  Dry  up  old  fellow!  We  make  no  exceptions  down  here."  So  I  trust  that  in  this  case 
the  Convention  will  decline  to  make  an  exception  of  the  philosopher  of  Winchester. 

Mr.  R.  Walton  Moore:  The  gentleman  from  Danville  (Mr.  Green)  has  quoted  a 
German  author.  An  English  writer  whom  we  all  know  has  told  of  the  land  of  Lilliput, 
which  Gulliver  visited  where  he  found  that  all  of  the  tailors  measured  their  patrons  for 
suits  of  clothes  with  a  quadrant  without  regard  to  their  varying  needs  and  sizes.  It 
strikes  me  that  we  are  undertaking  to  do  something  similar  to  that.  We  are  endeavor- 
ing to  measure  every  city  in  this  Commonwealth  for  the  same  sort  of  government.  We 
are  trying  to  put  under  the  rigid  regulation  which  we  have  devised,  every  municipal 
community  in  the  Commonwealth.  We  are  undertaking  to  do  it  even  if  the  people  of 
these  communities  protest  vehemently  against  it.  I  have  been  to  the  city  of  Win- 
chester. I  do  not  know  whether  it  is  a  finished  town  or  not,  but  I  do  know  that  it 
seems  to  be  a  most  admirably  governed  town,  and  one  of  the  best  managed  in  this 
Commonwealth.  If  it  gets  along  well  under  its  present  government  I  do  not  see  why^ 
we  should  insist  upon  experimenting,  by  making  this  proposed  change. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2775 


:\Ir.  Robertson:  I  want  to  suggest  that  I  think  the  illustration  made  by  the  gen- 
tleman from  Danville  (Mr.  Green)  is  a  very  apt  one,  and  that  we  are  playing  the  devil, 
in  this  Convention,  at  a  very  rapid  rate.  (Applause.) 

The  President:  The  question  is  upon  the  amendment  offered  by  the  gentleman 
from  Winchester. 

The  question  having  been  taken,  the  result  was  announced— ayes,  39;  noes,  23. 
The  agreement  was  agreed  to. 

Mr.  Brooke:  I  now  move  that  Section  7,  as  amended,  be  adopted  by  the  Conven- 
tion. 

The  section  was  adopted. 

Mr.  R.  Walton  Moore:  In  view  of  the  action  of  the  Committee  of  the  Whole  on  the 
report  of  the  Committee  of  the  Whole  on  the  report  of  the  Committee  on  Taxation  and 
Finance,  it  seems  to  me  there  should  be  an  amendment  to  Section  14.  That  section  de- 
clares: "In  cities  and  towns  the  assessment  of  real  estate  and  personal  property  for 
the  purpose  of  municipal  taxation,  shall  be  the  same  as  the  assessment  thereof  for  the 
purposes  of  State  taxes." 

The  time  may  come  when  some  property  located  in  cities  and  towns  may  not  be 
assessed  by  the  State,  and  therefore,  it  is  deemed  wise  to  add  to  the  section  this  lan- 
guage:   "Whenever  there  shall  be  a  State  assessment  upon  such  property." 

I  have  conferred  with  Mr.  Meredith,  a  member  of  the  Committee  on  Taxation  and 
Finance  in  regard  to  this  matter;  and  I  think  the  amendment  is  also  acceptable  to  the 
chairman  of  the  committee. 

Mr.  Brooke:  I  think  that  amendment  should  pass,  in  order  to  put  this  article  in 
line  with  the  report  of  the  Committee  on  Taxation  and  Finance. 

The  amendment  vras  agreed  to. 

Mr.  Brooke:  I  now  move  that  the  articles  reported  by  the  Committee  on  Cities  and 
Towns  as  adopted  by  the  Convention,  be  referred  to  the  Committee  on  Final  Revision 
and  Adjustment  of  the  Schedule,  and  be  printed. 

The  motion  was  agreed  to. 

CORPORATIONS. 

Mr.  Braxton:  I  move  that  the  Convention  now  take  up  the  report  of  the  Com- 
mittee on  Corporations,  as  adopted  and  reported  by  the  Committee  of  the  Whole,  and 
proceed  to  dispose  of  it. 

The  motion  was  agreed  to. 

At  this  point  Mr.  Ayers  took  the  chair  as  presiding  officer. 
Section  1  was  then  read. 

Mr.  Claggett  B.  Jones:  Mr.  President.  I  move  to  amend  Section  1  by  striking  out 
the  words  "  and  also  any  sleeping  or  parlor  car  company."' 

I  made  this  motion  in  Committee  of  the  Whole.  The  vote  by  vrhich  it  was  lost  was 
very  close.  I  think  that  it  lacked  only  two  votes  of  carrying.  I  am  satisfied  if  the 
Committee  of  the  Whole  had  thoroughly  understood  the  matter  these  vrords  would  have 
been  stricken  out  of  the  report.  My  reason  for  making  this  motion.  Mr.  President  and 
gentlemen  of  the  Convention,  are  that  these  sleeping  and  parlor  car  companies  are,  in 
no  sense  of  the  word,  transmission  or  transportation  companies.  The  courts  of  this 
country  have  held  that  they  are,  in  no  sense  of  the  word,  transportation  or  transmis- 
sion companies,  it  seems  to  me  that  if  we  insert  this  provision  in  the  report,  we  under- 
take to  do  what  the  courts  have  held  cannot  be  done;  that  is,  make  them  transportation 
or  transmission  companies.  A  further  reason  ^vhy  these  companies  should  be  eliminated 
from  the  operation  of  this  report  is  the  fact  that  it  is  absolutely  necessary  to  protect 
these  companies  from  certain  classes  of  passengers. 

It  is  necessary  that  they  should  have  the  right  to  say:  "Your  rates  are  unjust,  your 
rates  are  unequal,  your  rates  must  be  uniform,  they  must  apply  alike  to  all  persons 
under  all  circumstances  and  conditions."'    As  we  all  know,  we  are  protected  from  a 


2776 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 


certain  class  of  travelers  in  this  State,  by  what  is  known  as  the  Jim  Crow  car  law.  But 
that  might  not  apply  in  the  case  of  these  companies.  They  have  no  means  of  protecting 
themselves,  save  by  discriminating  against  this  peculiar  class  of  people  from  whom  we 
wish  to  be  protected. 

There  is  another  reason,  as  I  understand  this  matter,  why  this  amendment  should 
be  adopted.  There  has  been,  at  no  time,  any  complaint  made  against  these  companies 
that  they  have  discriminated  against  certain  people  or  against  certain  sections.  When 
this  motion  was  made  in  Committee  of  the  Whole  my  friend  from  Petersburg  stated 
that  a  certain  section  of  this  country  had  been  discriminated  against,  in  that  the  charge 
from  Richmond  to  New  York  was  $2  and  the  charge  from  Richmond  to  some  town  in 
Florida  was  $5.  I  think  the  gentleman  made  that  statement  under  a  misapprehension. 
The  fact  is  that  the  distance  from  Richmond  to  New  York  is  331  miles,  and  the  dis- 
tance to  Jacksonville  is  687  miles.  The  time  that  it  takes  to  go  from  Richmond  to  New 
York  is  about  nine  hours,  possibly  a  little  less  on  certain  trains  and  the  time  that  is 
taken  to  go  from  Richmond  to  Jacksonville  is  never  less  than  eighteen  hours,  and  gen- 
erally about  twenty-three.  Now,  if  $2  is  a  reasonable  charge  for  traveling  331  miles, 
certainly  $5  would  not  be  an  unreasonable  charge  for  traveling  a  distance  of  687;  and  if 
$2  is  a  reasonable  charge  for  traveling  nine  hours,  $5  would  not  be  an  unreasonable 
charge  for  traveling  about  twenty-tree  hours,  and  as  suggested  by  my  friend  from  Win- 
chester, it  might  require  two  nights  to  make  the  latter  trip. 

I  know  that  the  gentleman  from  Petersburg  did  not  intend  to  do  injustice  to  these 
companies.  Upon  investigation,  I  find  that  the  gentleman  was  in  error  in  making  the 
statement  that  the  time  it  took  to  make  the  two  journeys  was  about  the  same,  and  that 
the  travel  was  about  the  same.  Therefore,  Mr.  President  and  gentlemen,  the  charge 
that  there  is  a  discrimination  against  the  South  by  these  companies,  it  seems  to  me, 
was  not  founded  in  fact,  but  was  due  to  a  misapprehension  on  the  part  of  the  gentleman 
from  Petersburg  (Mr.  Cameron). 

I  hope,  gentlemen  of  the  Convention,  it  may  be  the  pleasure  of  this  Convention  to 
eliminate  these  companies  from  the  operation  of  this  report.  An  amendment  was  offered 
by  the  chairman  of  the  Committee  on  Corporations,  in  Committee  of  the  Whole,  that  in 
case  these  companies  should  need  regulations  at  some  future  day,  if  they  began  to  dis- 
criminate against  particular  persons  or  particular  sections  of  the  State,  the  Legislature 
v/ould  have  a  perfect  right  to  provide  for  that  at  any  moment,  under  an  amendment 
ofl'ered  by  the  chairman  of  the  committee,  which  was  inserted  as  a  part  of  this  report. 
It  seems  to  me  therefore,  that  we  ought  to  leave  this  matter  to  the  Legislature,  to  take 
future  action  should  occasion  arise.  I  undersand  that  the  chairman  of  the  committee 
is  willing  that  these  companies  should  be  eliminated  from  the  operation  of  this  report. 
He  so  voted,  if  I  am  not  mistaken,  in  Committee  of  the  Whole.  I  hope  it  will  be  the 
pleasure  not  only  of  the  chairman  of  the  Committee  on  Corporations,  but  of  the  gentle- 
man who  signed  the  majority  report,  that  these  companies  may  be  eliminated  from  the 
operation  of  this  report. 

Mr.  Braxton:  Mr.  President,  when  I  stated  the  other  day  that  I,  personally,  had 
no  objection  to  the  amendment  going  in,  and  that  I  thought  I  voiced  the  sentiment  of 
the  members  of  the  Committee  on  Corporations  who  signed  the  majority  report,  it  was, 
as  I  explained  then,  in  view  of  the  fact  that  sub-section  c,  in  Section  4,  had  been  so 
amended  that  the  Legislature  could  include  sleeping  car  companies  amongst  those  over 
which  the  corporation  commission  would  have  jurisdiction,  whenever,  in  the  opinion  of 
the  Legislature,  it  was  deemed  proper.  I  hope  the  gentleman  from  King  and  Queen  will 
give  me  his  attention.  The  language  by  which  I  thought  we  had  accomplished  that 
purpose  was  "  or  with  the  prescribing  and  enforcing  of  rates,  charges,  or  classification  of 
traffic  of  any  public  or  quasi  public  corporation."  Since  the  adoption  of  the  report  by 
the  Committee  of  the  Whole,  upon  investigating  the  matter  further  I  have  come  to  the 
conclusion  that  there  is  a  good  deal  of  doubt  as  to  whether  the  Pullman  Sleeping  Car 
Company  is  a  quasi-public  corporation,  and  we  propose  to  remedy  that,  when  the  time 


DEBATES  OF  THE  COJsTSTITUTIO^^AL  COXVEXTION  OF  VIRGINIA. 


3777 


comes,  by  changing  the  wording  in  such  a  way  as  to  put  it  beyond  peradventure,  by 
striking  out  the  words  "  or  classifications  of  traffic  of  any  public  or  quasi-public  corpora- 
tion," and  insert  the  words  "  to  be  observed  in  the  conduct  of  any  business  where  the 
State  has  the  right  to  prescribe  the  rates  and  charges  in  connection  therewith." 

I  say  that  if  our  amendment  is  adopted  we  have  no  objection  to  the  amendment 
offered  by  the  gentleman  from  King  and  Queen,  but  in  view  of  the  fact  that  our  position 
will  depend  upon  the  adoption  or  rejection  of  this  amendment  on  page  12,  I  would  sug- 
gest the  propriety  of  passing  by,  for  the  present,  the  consideration  of  his  amendment, 
until  we  have  disposed  of  this  matter  in  sub-section  c. 

Mr.  Claggett  B.  Jones:  So  far  as  I  am  concerned,  personally  I  have  no  objection  to 
the  motion  to  pass  by. 

Mr.  Cameron:  Mr.  President  and  gentlemen  of  the  Convention,  the  language  which 
the  gentleman  from  King  and  Queen  desires  to  strike  out  occurs  in  a  portion  of  the  re- 
port of  the  article  giving  definitions  of  certain  terms  used  in  the  report,  and  it  says: 
"  The  term  '  transportation  company '  shall  be  construed  to  include  any  company,  trus- 
tee or  other  person  owning,  leasing  or  operating  for  hire  a  railroad,  street  railway, 
canal,  steamboat  or  steamship  line,  and  also  any  sleeping  or  parlor  car,  freight  car 
company,  car  association  or  car  trust,  express  company  or  company  trust,  or  person 
in  any  way  engaged  in  business  as  a  common  carrier,  over  a  route  acquired  in  whole  or 
in  part  under  -the  right  of  eminent  domain." 

It  will  be  clear,  on  examination,  that  the  jurisdiction  claimed  for  this  commission 
rests  upon  the  exercise  of  functions  as  a  common  carrier  over  the  route  In  this  State, 
acquired  in  whole  or  in  part  under  the  right  of  eminent  domain.  The  question  as  to 
whether  a  decision  may  have  been  rendered  by  a  court  that  the  Pullman  Car  Company 
may  be  properly  denominated  a  transportation  company,  does  not  seem  to  me  at  all 
applicable  here.  It  is  certainly  a  common  carrier,  performing  the  functions  of  a  com- 
mon carrier,  hauling  passengers  at  a  price  over  roads  operated  in  this  State,  acquired 
under  the  right  of  eminent  domain.  Therefore,  if  there  be  any  legal  objection  to  the 
inclusion,  in  this  part  of  the  report,  of  "  parlor  car  and  sleeping  car  companies,"  the 
same  objection  exactly  would  apply  to  express  companies,  and  other  car  companies,  car 
associations,  and  any  other  of  the  associations  which  do  their  business  by  the  aid  of  the 
railroads.  I  used  the  term  "  Pullman  Car  Company  "  simply  to  designate  sleeping  car 
companies  in  this  country.  They  do  their  business  by  owning  their  cars  and  having 
them  hauled  by  the  railroad  company,  under  the  charters  granted  by  the  State,  charging 
for  the  transportation  of  such  passengers.  It  was  suggested  in  this  connection  that  we 
would  have  no  jurisdiction.  We  certainly  would  have  no  jurisdiction  over  traffic  or 
travel  originating  beyond  the  State,  or  over  passengers  carried  to  a  point  of  destination 
beyond  the  State.  But  the  same  argument  would  apply  to  the  railroad  company  as  to 
intra-State  business. 

It  seems  to  me  the  gentleman  from  King  and  Queen  proves  too  much.  He  has  two 
theories.  One  is  that  these  companies  ought  not  to  be  included  in  the  jurisdiction  of  the 
Corporation  Commission  because  if  their  rights  were  interfered  with  it  might  prevent 
discrimination,  and  the  prevention  of  that  discrimination  might  destroy  the  power  of 
the  sleeping  car  company  to  exclude  a  certain  class  of  people  from  those  cars.  Then  he 
says  that  they  have  not  discriminated  and  do  not  discriminate.    Both  cannot  be  true. 

Mr.  Jones:  I  think  the  gentleman  misunderstands  me.  I  did  not  say  they  had  not 
discriminated.    I  said  there  was  no  complaint  against  them  because  of  discrimination. 

Mr.  Cameron:  Waiving,  for  the  moment,  the  question  of  discrimination,  I  want  to 
say  that  I  see  no  reason  why  this  company  or  any  company  which  comes  within  the 
statement  of  a  principle,  or  any  company  which  comes  within  the  jurisdiction  of  this 
commission,  should  be  excluded  from  that  jurisdiction.  An  express  company  could  say 
the  same  thing.  The  car  trust  companies  could  say  the  same  thing.  They  occupy 
no  territory  in  your  State.  They  have  not,  themselves,  been  given  any  grant  of  eminent 
domain;  but  they  are  common  carriers,  over  roads  which  have  acquired,  in  the  State  of 
175 — Const.  Deb. 


2778 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


Virginia,  property  by  the  exercise  of  the  right  of  eminent  domain  and  therefore  are 
subject  to  the  regulation  of  the  State  law,  just  as  far  as  the  railroad  companies  them- 
selves are,  limited  only  by  the  provision  of  the  Federal  Constitution. 

The  gentleman  apprehends  that  I  have  been  in  error  in  regard  to  rates.  I  did  not 
say  that  the  distance  was  the  same  and  I  did  not  state  that  exactly  the  same  time  was 
consumed  in  making  the  two  trips  to  which  I  referred.  I  have  made  the  trip  five  or  six 
times  to  the  South  and  twenty  or  thirty  times  to  the  North.  By  way  of  the  Seaboard 
Air  Line  I  would  leave  Petersburg  at  4:20  o'clock  in  the  afternoon  and  I  would  make 
my  connection  at  Jacksonville,  Fla.,  at  9  o  clock  the  next  morning.  I  was  charged  $5 
for  a  lower  berth  in  a  sleeper.  I  would  leave  Petersburg  at  6:30  on  the  same  afternoon, 
be  delivered  about  8  o'clock  in  the  morning  and  be  charged  $2  for  a  lower  berth  in  a 
sleeper.  Those  are  the  facts.  The  deduction  from  them,  of  course,  may  be  varied  by 
saying  that  the  distance  is  to  be  charged  for,  and  not  the  time  you  occupy  the  car. 

I  have  no  particular  object  in  this  objection  except  that  I  do  not  see  why  one  of 
these  companies  should  be  exempt  from  the  operation  of  this  law.  Let  us  admit  that 
no  discrimination  is  made.  If  that  be  admitted  the  great  base  of  the  argument  falls  to 
the  ground  because  if  they  do  not  discriminate  this  objectionable  class  can  ride  as  well 
as  anybody  else.  I  do  not  see  why  we  should  not  provide,  as  we  are  doing  in  a  great 
many  other  cases,  against  the  possibility  of  ill  conduct  on  the  part  of  this  corporation. 
Iz  there  any  complaint  made  about  the  express  companies.  Nobody  has  moved  to  omit 
them  from  the  jurisdiction  of  the  commission.  Is  there  any  charge  that  the  car  trust 
company  is  abusing  its  privileges  and  rights?  None  whatever.  Nobody  says  to  leave 
them  out.  I  do  not  see  why  one  of  the  most  powerful  corporations  in  this  country 
which  is  certainly  within  our  jurisdiction  within  State  lines,  as  much  as  any  other  cor- 
poration is,  should  be  exempted  from  the  possible  control  of  this  commission.  The 
amendment  proposed  by  the  chairman  of  this  committee  only  proposes  to  put  them 
under  the  jurisdiction  of  the  General  Assembly,  that  very  body  timidity  as  to  the  faith- 
fulness of  which  has  been  the  groundwork  and  argument  for  the  creation  of  this  all- 
powerful  bureau  of  the  government,  superior  to  all  the  other  departments  thereof. 

I  do  not  care  to  press  this  point  if  the  considerations  which  obtain  as  to  all  other 
corporations  do  not,  in  the  eyes  of  the  Convention,  properly  apply  here.  I  am  not  the 
guardian  of  the  interests  of  the  State  in  this  respect;  but  I  do  contend  that  in  a  great 
work  like  this  we  ought  not  make  fish  of  one  of  the  objects  of  our  legislation,  flesh  of 
another  and  fowl  of  another. 

Mr.  Braxton:  I  would  like  to  correct  a  misapprehension  on  the  part  of  the  gentle- 
man as  to  the  position  I  take.  If  I  understood  him  he  did  not  correctly  state  my  posi- 
tion. He  said  that  the  effect  of  my  amendment  to  sub-section  C  would  be  to  merely 
relegate  this  sleeping  car  company  to  the  jurisdiction  of  the  Legslature. 

I  want  to  correct  that.  The  effect  of  it  will  not  be  merely  to  say  that  the  Legisla- 
ture can  regulate  them  and  fix  the  rates,  but  that  the  Legislature  can  assign  them  to 
the  jurisdiction  of  this  commission  and  the  commission  will  fix  their  rates.  As  to 
whether  the  jurisdiction  of  the  commission  shall  extend  to  them  or  not,  shall  be  left  to 
the  Legislature.    I  trust  I  make  myself  clear. 

Mr.  Cameron:  You  make  yourself  clear,  but  I  trust  the  gentleman  will  excuse  me 
for  saying  that  it  is  a  distinction  without  a  difference.  I  do  not  see  why  it  should  be 
left  discretionary  with  the  General  Assembly  with  regard  to  the  Pullman  Car  Company, 
when  other  companies  of  the  same  character  are  put  directly  under  and  into  the  juris- 
diction of  the  commission. 

Mr.  Flood:  Mr.  President,  I  differ  with  the  gentleman  from  Petersburg  (Mr. 
Cameron).  I  think  there  is  a  distinction  between  this  company  and  other  companies, 
and  because  of  that  distinction  I  think  this  company  should  be  exempt  from  the  opera- 
tion of  the  law  creating  this  commission.  My  objection  to  its  being  included  is  simply 
because  it  will  prevent  sleeping  car  companies  from  protecting  the  white  travelling 
public  from  the  colored  people  who  desire  to  go  into  these  cars.    If  the  corporation 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


2779 


commission  can  cite  these  companies  to  appear  whenever  complaint  is  filed  by  a  negro 
that  he  is  discriminated  against  by  not  being  allowed  space  in  one  of  these  cars  or  be- 
cause the  price  is  raised  to  him,  the  commission  would  be  bound  to  fine  them,  and  so 
the  companies  could  not  afford  to  protect  the  white  travelling  public. 

Mr.  Cameron:  Is  it  or  is  it  not  a  fact  that  this  company  does  not  discriminate  be- 
tween individuals?  Is  it  not  a  fact  that  a  colored  man  applying  for  Pullman  accomoda- 
tions at  the  station  here  in  Richmond  to-night  will  be  charged  the  same  as  you  or  I? 

Mr.  Flood:  I  believe  it  is  a  fact  that  he  would  be  denied  space  in  that  car  upon 
one  excuse  or  another;  but  I  do  not  believe  the  company  could  do  it,  if  every  time  they 
denied  space  to  a  colored  man  they  would  be  dragged  up  before  this  commission  and 
fined.  They  could  not  afford  to  do  it.  The  only  recourse  a  colored  man  now  has  is  to 
appeal  to  the  courts  on  the  ground  of  discrimination,  just  as  he  can  now  appeal  to  the 
courts  against  our  separate  car  law  on  the  ground  that  the  cars  furnished  the  negroes, 
as  every  man  in  the  State  knows  is  a  fact,  are  not  as  nice  as  those  furnished  to  the 
white  man, 

Mr.  President,  we  all  have  lady  friends  and  families  who  use  these  cars  and  who  are 
compelled  to  use  them  in  their  travel,  and  surely  we  do  not  wish  to  break  down  the 
barrier  as  to  sleeping  cars  or  Ptillman  coaches  which  we  have  erected  as  to  the  ordinary 
day  coaches. 

Mr.  Garnett:    Do  you  know  they  have  discriminated  against  the  blacks? 

Mr.  Flood:    I  am  informed  upon  the  best  authority  that  they  have. 

Mr.  Garnett:  I  know  they  have  not  done  it  down  in  my  section  of  the  country. 
The  darkey  rides  in  the  Pullman  car  from  here  to  Newport  News  just  as  well  as  I  do. 

Mr.  Flood:  I  do  not  believe  the  colored  man  can  go  to  a  Pullman  car  office  and  get 
a  ticket. 

Mr.  Garnett:  I  assert  it  as  a  fact.  I  do  not  know  whether  they  get  a  ticket  or  not, 
but  they  ride  on  the  car.  I  saw  a  great  big  buck  negro  on  one  of  them  three  or  four 
weeks  ago.  I  do  not  know  how  he  got  there.  He  may  have  had  a  complimentary  ticket. 
I  did  not.    I  had  to  pay  for  mine. 

Mr.  Flood:  I  did  not  intend  to  question  the  gentleman's  statement.  That,  however, 
was  not  one  of  the  Pullman  cars  that  this  law  would  apply  to. 

Mr.  Garnett:    It  is  a  car  that  they  spread  beds  on  and  sleep  on. 

Mr.  Flood:  It  was  a  through  car.  It  is  not  a  car  that  starts  within  the  limits  of 
this  State,  and  your  commission  cannot  control  it.  It  is  a  car  that  starts  in  a  city 
where  the  negro  is  nearer  the  attainment  of  social  equality  than  will  ever  be  the  case  in 
Virginia.  \ery  few  negroes  get  in  Pullman  cars  now.  Some  of  them  may  get  in. 
Under  no  system  will  you  be  able  to  prevent  this  occasionally,  but  they  cannot  go  to  a 
ticket  office  here  and  buy  a  ticket.  By  one  excuse  or  another,  the  company  has  in  the 
past  kept  them,  as  a  rule,  out  of  Ptillman  cars.  I  do  not  mean,  of  course,  that  they  have 
done  it  in  every  instance;  but  in  the  majority  of  cases  they  will  be  able  to  do  so  either 
by  putting  a  prohibitive  tariff  upon  them  or  by  telling  them  there  is  no  space  for  sale. 
I  claim  this  provision  would  take  it  out  of  their  power  to  protect  the  white  people  to 
that  extent.  I  do  not  believe  this  Convention  is  going  to  subject  the  ladies  of  this 
Commonwealth  to  the  indignity  of  having  to  travel  in  sleeping  cars  with  negroes. 

It  seems  to  me  that  is  a  reason  which  differentiates  this  company  from  every  other 
company.    I  think  the  difference  is  sufficient  to  justify  the  adoption  of  this  amendment. 

Mr.  Braxton:    I  move  that  the  further  consideration  of  this  matter  be  passed  by. 

The  President:    That  will  be  done,  without  objection. 

Section  2  was  read  and  adopted. 

LIMITATION  OF  DEBATE. 

Mr.  Thom:  1  move  that  debate  arising  on  the  subject  of  this  report  be  limited  to 
ten  minutes. 

The  motion  was  agreed  to. 


2?80  DEBxlTES  OP  THE  CONSTITUTIOJvTAL  COXVENTIOISr  OF  VIRGINIA. 

Section  3  was  read  and  amended  as  to  verbiage  by  the  Chairman  of  the  Committee 
(Mr.  Braxton.) 

Mr.  Withers:  Mr.  President,  if  the  chairman  of  the  committee  is  through,  I  desire 
to  offer  this  amendment,  which  comes  as  two,  because  of  the  necessity  of  two  changes 
being  made  right  together. 

Insert  the  words  "three  members  of"  after  the  word  "  the."  Strike  out  in  lines 
4  and  5  the  words  "appointed  by  the  Governor,  subject  to  confirmation  by  the  General 
Assembly  in  joint  session"  and  insert  the  words  "  elected  by  the  qualified  voters  of 
the  State." 

Mr.  President,  much  to  my  regret  I  am  afraid  that  I  will  be  the  innocent  start  of  a 
good  deal  of  oratory  and  eloquence;  not  that  I  am  eloquent,  but  the  motion  causes  it. 

As  I  closed  within  my  ten  minutes  limit  the  other  day,  i  was  submitting  some  re- 
spectful observations  to  my  distinguished  friend,  the  chairman  of  this  committee;  and 
I  think  it  is  eminently  appropriate,  in  view  of  a  speech  made  and  of  certain  events  that 
have  occurred  since  that  time,  that  I  should  continue  my  remarks  as  started  to  be  made 
upon  that  occasion. 

I  called  attention,  Mr.  President,  to  the  fact  that  the  distinguished  chairman  of  the 
Committee  on  Corporations  had  not  voted  for  election  by  the  people  of  any  of  the  officers, 
the  method  of  whose  election  and  appointment  was  submitted  to  the  decision  of  this 
Convention.  Since  that  time  my  distinguished  friend  has  offended  again  three  times. 
I  believe  he  voted  against  the  election  of  the  Secretary  of  the  Commonwealth,  of  the 
treasurer  and  of  the  first  auditor;  and  these  remarks  are  apropos  because  of  the  fact 
that  my  friend  from  Warren  (Mr.  O'Flaherty)  while  making  an  argument  in  favor  of 
a  similar  resolution  in  Committee  of  the  Whole,  to  elect  the  corporation  commissioners 
by  the  people  instead  of  appointing  them  by  the  Governor,  subject  to  the  confirmation  of 
both  branches  of  the  General  Assembly,  called  attention  to  the  fact  that  this  amendment 
which  I  respectfully  offer  here  to-day  is  the  original  report  of  this  corporation  com- 
mittee, as  published  in  the  newspapers,  for  the  commissioners  were  to  be  elected  by  the 
people,  and  further  said  that  a  second  Saul  of  Tarsus  had  seen  a  second  light.  But  I 
think  my  friend  from  Clarke  and  Warren  made  this  one  mistake.  My  recollection  is 
that  as  the  distinguished  Saul  of  Tarsus  went  down  in  his  journey  to  Damascus,  he  was 
struck  blind  by  the  overwhelming  light  that  he  saw,  and  that  he  was  blind  for  some  days 
thereafter.  I  am  afraid  the  distinguished  chairman  of  this  committee  has  not  recov- 
ered the  sight  that  was  accorded  to  Saul  of  Tarsus.  He  is  still  blind  and  wandering  in 
the  blindness  of  his  error. 

Now,  Mr.  President,  I  call  the  attention  of  the  Convention  again  to  the  fact  that  we 
have  in  this  amendment  exactly  what  this  committee  first  agreed  upon.  Why  this  sud- 
den blindness?  Why  this  sudden  change?  What  is  the  reason  for  it?  It  has  not  been 
explained  upon  the  floor  of  this  Convention.  In  none  of  the  many  able  defences  made 
by  that  committee  for  this  report,  has  it  been  explained.  It  has  not  been  explained  by 
any  of  the  various  and  sundry  and  almost  numberless  amendments  offered  by  the  com- 
mittee itself  to  its  report;  and  so  many  were  they,  that  a  distinguished  gentleman  upon 
the  floor  said  that  they  (the  committee  on  Corporations)  met  an  argument  or  an  objec- 
tion not  with  an  argument  or  reason,  but  with  an  amendment;  but  the  reason  for  this 
change  remains  to  this  day  unknown  to  the  members  of  the  Convention,  and  I  am  frank 
to  say  that  it  does  seem  that  we  who  advocate  this  method  of  election,  instead  of  an 
appointment  subject  to  confirmation,  are  ourselves  in  line  with  what  was  a  part  of  the 
original  recommendations  of  the  Committee  on  Corporations.  Now,  I  want  to  hear  in 
the  course  of  this  debate  reasons  for  this  change. 

It  seems  there  is  a  lightning  change  artist  capacity  for  amendments  for  tentative 
propositions  or  for  reversals  and  it  does  seem  to  me  that  when  in  as  important  a  matter 
as  the  matter  of  choosing  the  commissioners  there  should  be  consistency  and  that  is 
what  we  are  contending  for.    Very  few  of  us  who  advocate  this  method  of  choosing 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIRGIXIA. 


2781 


these  commissioners  in  any  wise  oppose  the  spirit  and  intention  and  purpose  of  this 
bill.  We  advocated  and  desired  that  this  discussion  which  we  urged  the  supporters  of 
this  measure  should  be  put  off  to  the  last,  in  order  that  nothing  mignt  be  done  that 
should  create  anj-thing  approaching  a  lack  of  harmonj^  or  cause  any  friction.  It  was 
not  assented  to,  and  therefore  we  had  to  fight  from  our  position  and  upon  the  merits  of 
the  question  that  we  submit. 

Now,  why  the  change?  A\Tiat  is  the  reason  for  it?  Conservatism?  Is  it  possible 
that  we  who  are  noted  as  the  most  conservative  people  in  all  these  United  States,  that 
Virginia,  who  is  the  leader  in  conservatism  and  has  always  been,  has  lost  all  of  that  or 
will  lose  it  under  a  purified  and  purged  electorate;  that  this  Convention  proposes  to 
give  to  the  citizens  of  the  Commonwealth?  Is  it  not  a  fact  that  the  main  purpose,  so 
often  urged  upon  the  fioor  of  this  Convention  that  dictated  its  being  called  in  many 
sections  of  Virginia  was  to  purify  the  electorate?  Therefore  when  that  is  accomplished 
and  done,  there  will  be  absolutely  no  objection  to  such  a  method  of  choosing  the  officials 
because  of  the  fact  that  the  radical,  unwise  and  illiterate  part  of  the  electorate  is  elimi- 
nated therefrom. 

Now,  I  want  to  call  attention,  because  the  inconsistency  of  the  thing  appeals  so 
forcefully  to  me,  again  to  what  I  have  already  once  called  attention  to  upon  the  floor 
of  this  Convention.  That  is,  that  many  gentlemen  who  are  the  opponents  of  this 
measure,  but  who  favored  this  method  of  selecting  the  commissioners  by  the  people, 
are  the  Yevy  gentlemen  who  have  sustained  the  report  of  the  Executive  Committee 
as  originally  made,  and  retained  from  the  Convention  because  it  was  said  that  if  cer- 
tain officials  of  that  department  had  to  perform  one  of  the  duties  now  devolving  upois 
these  railroad  commissioners,  the  people  should  have  the  right  to  select  such  officials, 
performing  such  duties.  Now,  they  have  voted  consistently,  for  in  every  instance- 
they  voted  against  selecting  these  officials  by  the  people. 

So  that.  ]Mr.  President,  1  say  we  occupy  the  consistent  position.  We  stand  where 
the  committee  stood  before  it  had  its  blinding  light  that  left  it  blind.  We  stand  where 
the  gentlemen  on  the  Executive  Committee  stood  in  their  recommendation  that  the 
board  assessing  the  property  of  corporations  for  taxation  should  at  least  a  majority 
thereof,  be  selected  by  the  people  direct.  We  stand  where  we  have  persistently  and 
consistently  stood,  that  a  board  so  important,  of  such  high  dignity,  with  such  responsi- 
bilities, duties  and  burdens  upon  it,  should  not  be  subject  to  the  possibility  of  corrupt 
bargaining  between  the  appointing  power,  the  confirmatory  power  and  the  corpora- 
tions upon  whose  rights  they  should  have  to  pass.  We  are  still  consistent  in  our 
position  that  the  dangers  in  appointment  for  the  corrupt  practices  and  the  building 
up  of  machines  and  the  debauching  of  the  politics  and  the  corporations  of  Virginia 
are  infinitely  greater  by  the  appointive  than  by  the  elective  method. 

Mr.  Keezell:  Mr.  President,  I  desire  to  offer  a  substitute  for  the  amendment  of 
the  gentleman  from  Danville  (Mr.  Withers).  It  does  not  come  into  the  section  in  the 
same  line,  but  it  is  in  effect  a  substitute  for  that  proposition.  It  will  come  in  at  line 
67,  in  place  of  the  balance  of  that  section,  and  would  be  in  effect  a  substitute  for  the 
proposition  of  the  gentleman  from  Danville. 

As  the  terms  of  office  of  the  commissioners  first  appointed  under  this  ordinance 
expire,  their  successors  shall  be  elected  by  the  State  at  large,  and  the  General 
Assembly  shall  provide  by  law  for  their  selection. 

Now.  ;Mr.  President.  I  am  one  of  the  members  of  this  Convention  who  voted  in  most 
instances  for  the  election  of  officers  by  the  people,  and  I  favor  the  election  of  this  com- 
mission by  the  people:  but  at  the  same  time  I  recognize  the  force  of  the  argument  which 
has  been  used  upon  this  floor  by  various  gentlemen  in  favor  of  starting  this  commission 
at  once  at  as  early  a  day  as  we  can  with  people  who  have  been  named  with  special 
reference  to  the  quahfication,  as  it  was  supposed  might  possibly  be  done  by  an  ap- 
pointive rather  than  an  elective  power. 


2782 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  offer  this  substitute  now  for  the  amendment  of  the  gentleman  from  Danville, 
first,  in  order  that  this  commission  may  become  operative  at  as  early  a  day  as  pos- 
sible; next,  that  having  been  appointed  by  the  Governor  and  confirmed  by  the  Gen- 
eral Assembly,  if  that  has  proven  to  be  wise,  the  people  will  have  some  gauge  of  the 
character  of  men  that  shall  continue  to  perform  the  duties  of  this  important  office. 
If,  upon  the  contrary,  they  have  not  been  wise,  they  need  not  re-elect  these  men,  but 
they  can  take,  of  their  own  volition,  such  men  as  they  see  fit  to  take.  This  amend- 
ment simply  provides  that  as  the  term  of  each  one  of  these  commissioners  expires,  his 
successor  shall  be  elected  by  the  people,  and  at  the  end  of  the  terms  of  the  first  ap- 
pointed under  this  law  and  for  all  time  afterwards,  these  commissioners  will  be  elected 
hy  the  people. 

Mr.  Mcllwaine:  Mr.  President,  about  forty  years  ago  I  read  an  old  book,  the  first 
sentence  of  which  was  "  My  Uncle  Toby  had  a  hobby."  I  make  my  bow  to  the  gentle- 
man from  Danville  (Mr.  Withers).  (Laughter.)  If  this  Convention  has  not  gotten  sick 
and  tired  of  all  this  talk  about  the  people  putting  everything  before  the  people,  then 
they  have  a  great  deal  stronger  digestion  than  I  have.  (Laughter.) 

Mr.  Withers:  I  thought  there  w^as  something  the  matter  with  the  distinguished 
gentleman.  I  did  not  know  whether  it  was  his  digestion  or  his  intellect.  (Applause 
and  laughter.)    It  appears  now  it  is  both. 

Mr.  Mcllwaine:  The  idea  that  every  officer  that  has  to  be  elected  in  this  State  has 
to  be  elected  by  the  people  is  to  me  impossible.  I  have  had  occasion  before  to  say 
on  this  floor  that  it  seems;  to  me  it  is  as  much  our  duty  to  save  the  people  the  worry 
of  electing  people  as  it  is  to  give  them  the  right  of  electing  those  persons  whom  they 
desire  to  elect. 

We  have  heard  a  great  deal  of  representation  upon  this  floor  of  what  the  people 
^ant.  Why  gentlemen  think  the  people  want  to  be  bothered  with  the  election  of  all 
these  different  officers,  is  more  than  I  can  imagine.  There  are  certain  officers  of  State 
that  they  have  been  accustomed  to  elect,  but  that  they  desire  to  elect  such  officers  as 
these  I  do  not  for  a  moment  believe.  There  are  good  reasons  why,  as  the  gentleman 
from  Rockingham  (Mr.  Keezell)  has  shown,  that  these  officers  ought  to  be  chosen  at 
the  present  time.  It  seems  to  me  the  committee  has  been  very  conservative  in  its 
recommendation  and  in  its  proposition  that  at  the  end  of  five  years  after  the  system 
of  appointments  has  been  fully  tried,  the  Legislature  has  it  in  its  power  to  change 
the  mode. 

I  do  trust  the  Convention  will  not  be  carried  off  its  feet  by  such  appeals  as  we 
have  had  from  the  gentleman  from  Danville  (Mr.  Withers),  and  be  made  to  do  an 
imprudent  and  injudicious  thing. 

Mr.  Braxton:    I  move  that  the  chair  be  now  vacated  until  4  o'clock  this  afternoon. 

The  motion  was  agreed  to,  and  the  Convention  took  a  recesa  until  4  o'clock  P.  M. 

/- 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess. 

Mr.  Davis:  Mr.  President  and  Gentlemen  of  the  Convention,— I  shall  detain  you 
but  a  moment  in  answering  the  gentleman  from  Prince  Edward  (Mr.  Mcllwaine).  I 
desire  to  say  that  he  has  greatly  misstated  the  wishes  of  the  people  In  my  section  of 
the  State,  and  if  the  gentleman  from  Prince  Edward  were  to  visit  my  section  of  the 
•country  he  would  hear  a  great  deal  more  said  about  the  members  of  this  Convention 
who  are  continually  talking  about  taking  the  election  of  officials  out  of  the  hands  of  the 
people  than  he  will  hear  about  the  gentleman  from  Danville  and  the  other  gentlemen 
upon  this  floor  who  are  contending  that  the  people  are  to  elect  their  officers.  The 
people  of  this  State  know  whom  they  want,  and  they  are  intelligent  enough  and 
capable  enough  to  elect  their  own  officers.  I  know  of  no  class  of  officials  more  im- 
portant for  them  to  elect  than  the  members  of  the  Corporation  Commission.  They 
ought  to  vote  for  them,  and  they  desire  to  vote  for  them.  I  hope  it  will  be  the  pleasure 
of  the  Convention  to  support  the  amendment  of  the  gentleman  from  Danville. 


DEBATES  OF  THE  COXSTITUTIOIs^AL  COXVEXTIOX  OF  VIEGIXIA.  2783 

Mr.  Kendall:  Mr.  Chairman  and  gentlemen  of  the  Convention,  I  had  hoped  that 
this  matter,  which  has  been  so  fully  discussed,  had  been  finally  settled,  not  only  in 
the  minds  of  the  members,  but  beyond  any  further  debate  on  this  floor.  I  have  lis- 
tened, however,  to-day  to  an  arraignment  not  only  of  the  report  of  the  committee,  but, 
as  it  seems  to  me,  of  the  members  of  the  committee.  We  were  asked  when  it  was  that 
new  light  had  dawned  upon  us  in  the  matter  of  the  selection  of  these  Corporation 
Commissioners.  I  am  unable  to  understand  the  meaning  of  that  interrogatory.  If  the 
gentlemen  mean  that  their  impressions  are  always  so  wise  that  they  need  not  take 
counsel  of  further  consideration,  if  they  mean  that  they  are  led  by  intuition  rather 
than  by  reason  or  reflection,  I  will  accord  to  them,  especially  to  my  friend  from  Dan- 
ville, who  seems  to  occupy  that  position,  a  monopoly  of  such  virtue.  I  understood  the 
gentleman,  however,  to  complain  that  our  committee  had  changed  our  report  upon 
this  subject.  When  it  did  so  is  unknown  to  me.  This  report  stands  to-day  in  this 
matter  exactly  as  it  was  first  made.  It  may  have  been  that  measures  of  a  different 
character  were  submitted  to  the  committee  for  further  consideration.  I,  as  a  member 
of  that  committee,  was  struck  with  the  fact  that  members,  individually,  reflecting 
quietly  upon  the  working  of  this  part  of  the  article,  were  led  to  the  same  conclusion, 
that  it  would  be  a  fatal  mistake  to  place  in  our  article  a  provision  that  the  members 
of  this  commission  should  be  elected  by  the  people.  It  was  a  conclusion  that  I  suppose 
each  member  reached  not  after  days,  but  after  weeks  of  reflection  and  of  the  best 
consideration  that  they  were  able  to  give  to  the  subject.  But,  Mr.  Chairman,  we  do 
not  undertake  to  settle  the  whole  matter  beyond  peradventure  and  forever.  We  are 
willing  to  credit  those  who  may  differ  from  us  upon  this  subject  with  some  wisdom, 
which  our  friends  are  unwilling  to  credit  us  with.  We  provide  that  whenever,  by  ex- 
perience, it  shall  be  ascertained  that  the  selection  of  the  commission  under  appoint- 
ment by  the  Governor  shall  be  abused,  then  the  people — the  people — the  people, 
through  their  Legislature,  whom  they  elect,  shall  have  the  power  to  change  that  pro- 
vision and  place  it  where  they  wish  it  to  be  placed.  We  have  provided  that  we  shall 
have  the  benefit  of  experience  to  see  what  is  the  best  plan  to  be  adopted  in  the  settle- 
ment of  this  much  disputed  question.  We  have  presented  it  to  you  so  that  if  it  shall 
be  found  in  the  future,  that  the  Governor  of  the  State  is  abusing  his  high  prerogative, 
is  becoming  the  tool  of  the  corporations  or  of  politicians,  the  Legislature  may  take 
from  him  this  high  power,  which  has  been  entrusted  to  his  care.  Why,  sir,  it  seems 
to  me  that  is  one  view  of  this  plan  which  ought  to  commend  itself  to  each  member 
of  this  Convention  beyond  dispute,  that  not  only  the  Governor  will  ever  be  aware  that 
his  action  is  to  be  considered  by  the  Legislature  in  joint  session  and  by  those  who 
are  opposed  to  him  in  politics  and  seeking  to  defeat  his  ambition,  but  far  more  impor- 
tant is  it  that  it  will  stand  there  as  a  restraining  influence  upon  the  railroads  and 
other  corporations  to  prevent  them  from  undertaking  to  unduly  and  improperly  con- 
trol the  commission.  It  seems  to  me  that  that  ought  to  be  an  argument  sufficient  to 
settle  this  question  beyond  cavil  in  the  minds  of  every  member  of  this  Convention, 
no  matter  how  much  he  is  given  to  disputation. 

The  gentlemen  tell  us  there  is  nothing  to  be  said  on  the  other  side  of  this  ques- 
tion. Do  they  believe  that  the  people  never  make  mistakes?  Do  they  not  know  that 
if  these  splendid  salaries  are  held  out  to  the  politicians,  there  will  be  a  multitude  of 
them  from  all  parts  of  the  State  seeking  the  positions.  Are  you,  gentlemen  of  the 
Convention,  unwilling  at  least  to  give  this  plan  a  fair  and  square  trial,  when  it  con- 
tains a  provision  that  the  people  may  take  back  to  themselves  the  power,  if  they  find 
it  abused  by  the  Governor. 

I  understood  the  gentleman  from  Rockingham  to  offer  an  amendment  which  made 
it  conclusive  and  fixed  it  beyond  the  power  of  the  Legislature  to  decide  otherwise 
that  after  a  period  of  years  this  power  of  election  should  go  to  the  people  instead  of 
remaining  as  it  now  is.  Yet  he  undertook  to  argue  that  the  first  appointment  should 
be  made  by  the  Governor,  so  that  the  appointment  might  be  made  and  the  commission 
launched  under  the  most  advantageous  circumstances.    Wh.y,  Mr.  Chairman,  suppose 


2784  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

it  should  be  found  that  the  operation  of  this  plan  is  wise  and  for  the  best  interests 
of  the  people,  then,  under  the  amendment  offered  by  the  gentleman  from  Rockingham, 
we  cannot  keep  it  where  it  now  is,  however  well  it  may  be  found  to  work. 

I  submit,  as  I  said  before,  in  discussing  this  question  before  the  Committee  of  the 
Whole,  it  seems  to  me  that  you  are  now  striking  at  the  vitals  of  this  great  measure 
which  we  have  passed  after  such  long  debate.  It  seems  to  me  that  our  friends  have 
gone  blind  and  wild  upon  this  question  of  election  by  the  people.  I  do  not  believe  that 
the  people  are  flattered  by  such  talk  as  this.  They  know  their  capacity  and  they 
know  their  fitness  as  well  as  you  or  I  know  it.  They  are  ever  willing  to  entrust  to 
their  representatives  in  the  discharge  of  their  duties  as  representatives,  in  a  repre- 
sentative government.  Gentlemen  have  talked  upon  this  floor  again  and  again  as  if 
we  were  a  pure  democracy.  They  seem  to  think  that  no  longer  have  the  people  any 
power  over  the  Legislature.  They  seem  to  think  that  nothing  but  an  appeal  to  the 
polls  or  to  the  hurly  burly  of  a  political  convention  can  settle  any  of  these  great 
questions.  I  undertake  to  say,  here  and  now,  that  if  it  were  submitted  to  any  member 
of  this  Convention  within  twenty-four  hours — the  time  he  would  have  to  act  in  a 
political' convention — to  select  the  three  commissioners,  he  could  not  do  it.  I  under- 
take to  say  that  there  is  not,  within  the  sound  of  my  voice,  a  man,  unless  he  be  more 
self-opinionated  than  he  is  stocked  with  common  sense,  who  would  undertake  the  job 
of  selecting  these  three  men  within  twenty-four  hours,  without  further  consideration. 
He  might  be  able  to  select  the  member  who  should  represent  the  legal  part  of  the 
commission;  but  he  would  not  be  able  to  select  the  men,  whO'  by  reason  of  their 
technical  skill  will  require  for  their  selection  time,  consideration  and  information  from 
every  section  of  the  State.  Nothing  short  of  that,  and  no  instrument  of  appointment 
short  of  that,  is  fit  to  do  this  work.  For  that  reason  I  trust  that  the  gentlemen  will 
remember  that  we  are  now  about  to  pass  on  one  of  the  most  important  sections  of 
this  whole  report,  and  I  hope  they  will  sustain  the  report. 

Mr.  Flood:  I  disagree  with  the  gentleman  from  Northampton.  The  gentleman 
wants  to  know  if  the  people  never  make  mistakes.  I  agree  with  him.  that  the  people 
sometimes  make  mistakes;  but.  I  think,  Mr.  President,  the  will  of  the  people,  w^hether 
of  wisdom  or  folly,  is  the  fundamental  principle  of  free  government,  and  any  attempt 
to  abridge  that  will  is  an  act  of  usurpation  and  tyranny.  This,  sir,  in  my  judgment, 
is  an  attempet  to  abridge  the  will  of  the  people,  in  their  desire  to  choose  the  officers 
to  administer  one  of  the  most  important  departments  that  will  be  established  by  this 
Constitution.  I  heard  my  distinguished  friend  from  Roanoke  say  this  morning  that  in 
the  last  few  weeks  this  Convention  has  been  raising  hell.  It  has  done  nothing  more 
in  that  direction  than  this  manifestation  of  a  tendency  to  take  from  the  people  their 
right  to  choose  their  own  officers,  and  to  take  from  the  Legislature,  the  representatives 
of  the  people,  the  right  to  choose  other  of  those  officers,  and  to  concentrate  that  power, 
of  which  the  people  and  the  Legislature  have  been  robbe'd,  in  the  hands  of  one  man, 
the  chief  executive  of  this  Commonwealth.  There  has  been  instance  after  instance 
where  the  power  of  the  Governor  of  Virginia  has  been  increased  at  the  expense  of 
the  Legislature  and  of  the  people.  Why,  sir,  there  is  scarcely  a  function  of  govern- 
ment that  is  not  to  be  exercised  by  his  appointees.  The  enactment  of  general  laws 
is  still  left  to  the  Legislature,  but  the  carrying  out  of  those  laws  is  now  put  into  the 
hands  of  gentlemen  of  boards  or  of  bureaus,  who  derive  their  power  from  the  Governor. 
It  is  a  dangerous  tendency.  It  is  a  tendency  that  no  Commonwealth  in  this  country  can 
stand.  It  is  a  tendency  that  no  community  in  this  country  has  ever  stood  v^rithout 
building  up  a  political  machine,  which  has,  time  after  time,  defied  the  people  to  wrest 
the  power  from  it,  machines  which  have  held  the  governments  against  the  will  of  the 
people. 

Mr.  President,  the  Governor,  under  this  Constitution,  has  the  power  to  suspend 
every  executive  officer  of  this  Commonwealth  except  the  Lieutenant-Governor.  Of 
course,  it  follows  that  he  has  the  power  to  fill,  ad  interim,  the  vacancy  which  is  thus 
created.    And  thus  it  is  this  Convention  confers  upon  the  Governor  a  power,  the  ex- 


DEBATES  OF  THE  CONSTITUTIOJsTAL  CONVENTION  OF  VIRGINIA.  2785 

ercise  of  which  by  one  President  of  the  United  States,  caused  an  attempt  upon  the 
part  of  the  House  of  Representatives  to  impeach  him  for  high  crimes  and  misde- 
meanors, and  from  which  he  escaped  conviction  before  the  Senate  by  one  vote.  Not 
only,  Mr.  President,  are  all  the  executive  officers  of  the  Commonwealth  absolutely  at 
the  will  of  the  Governor,  but  most  of  them  are  appointed  by  him.  The  Agricultural 
Bureau  of  this  Commonwealth  has  been  turned  over  by  this  Convention  absolutely  to 
the  chief  executive.  It  is  true  that  you  have  thrown  a  sop  to  the  people  by  saying  they 
can  elect  the  Commissioner  of  Agriculture;  but,  while  they  have  done  that,  they  have 
divested  that  commissioner  of  every  bit  of  power  he  has  heretofore  had. 

Mr.Stuart:  Do  you  think  the  people  engaged  in  agriculture  in  this  State  are  com- 
petent to  judge  of  their  own  interests? 

Mr.  Flood:    I  certainly  do  think  so. 

Mr.  Stuart:  I  am  here  to  state  that  I  have  been  in  intimate  communication  with 
them,  and  the  only  objection  they  have  shown  in  this  entire  Constitution  is  that  the 
Commissioner  of  Agriculture  is  to  be  elected  by  the  people. 

Mr.  Flood:  You  have  a  peculiar  agricultural  constituency.  I  am  now  not  sur- 
prised to  know  that  there  are  1,100  white  men  in  Russell  county  who  do  not  know 
how  to  read  and  write.  (Applause.) 

Mr.  Stuart:  There  are  people  in  that  county  who  cannot  read  or  write  that  equal 
any  member  of  j^our  constituency. 

Mr.  Flood:  That  may  be  true;  but  they  do  not  show  it  in  the  communications, 
which  they  have  made  to  you,  because  my  people  want  a  voice  in  the  selection  of  the 
men  who  are  administering  their  affairs.  They  do  not  want  to  be  controlled  by  a 
one-man  machine.  We  are  building  up  a  political  machine  by  putting  into  one  man's 
hands  all  the  political  power  of  the  State.  We  do  throw  a  sop  to  the  people  by  saying 
that  the  Commissioner  of  Agriculture  shall  be  elected  by  the  people;  but  you  divest 
him  of  every  bit  of  authority  he  has  heretofore  had.  You  put  all  of  that  authority  in 
a  Board  of  Agriculture,  which  is  appointed  by  the  Governor,  and  you  make  this  com- 
missioner, chosen  by  the  people,  a  simple  insignificant,  contemptible  secretary  to  the 
Board  of  Agriculture,  with  not  even  the  power  to  appoint  the  clerks  in  his  office. 
You  have  denied  the  man,  who  is  chosen  by  the  people,  that  right.  And  thus,  here,  in 
1902,  a  Democratic  Constitutional  Convention  is  enacting  fundamental  laws  on  a  par 
with  those  for  which  the  people  of  Virginia  hurled  Mahone  from  power  nineteen  years, 
ago.  I  go  to  the  Bureau  of  Labor.  It  is  absolutely  in  the  hands  of  the  chief  executive  of 
this  Commonwealth.  The  wrongs  of  the  labor  people  can  only  be  righted  by  an  appeal  to 
an  officer  appointed  by  the  Governor.  You  have  reversed  the  policy  of  the  State  since 
its  foundation.  In  the  early  days  of  the  Commonwealth,  when  constitutions  were 
made  in  the  wisdom  of  tho  fathers,  there  were  no  constitutional  provisions  conferring 
powers  of  this  character  upon  the  executive.  Even  the  penitentiary  is  in  the  hands 
of  a  board  appointed  by  the  Governor.  Heretofore  the  people  of  Virginia  have  thought 
that  they,  through  their  General  Assembly,  were  at  least  capable  and  honest  enough  to 
choose  the  superintendent  of  the  Virginia  State  Penitentiary.  This  Convention  has- 
said  they  will  not  trust  them  even  to  do  that.  You  take  the  appointment  of  the  super- 
intendent away  from  the  Legislature  and  vest  it  in  a  board  which  !s  to  sit  in  the 
city  of  Richmond  in  direct  touch  and  close  communication  with  the  Governor,  with 
the  power  to  appoint  this  officer.  Every  one  of  the  seventy  or  eighty  appointments 
in  that  institution  at  the  farm  and  at  other  penal  institutions  which  may  be  estab- 
lished, and  the  disbursement  of  all  the  money  at  that  institution,  is  in  the  hands  of 
that  board.  The  same  is  true  of  the  asylums.  The  patronage  of  those  institutions  are 
in  boards  appointed  by  the  executive.  And  to  make  this  iron  grasp  on  them  all  the 
stronger,  you  have  provided  that  there  shall  be  one  central  board  of  twelve  which 
may  be  in  close  communication  and  touch  with  the  Governor,  which  controls  the 
distribution  of  patronage  and  the  expenditure  of  the  large  sums  of  money  disbursed  at 
this  institution.  Go  to  the  great  educational  institutions  of  the  State,  and  you  find 
them  controlled  and  dominated  by  the  appointees  of  the  executive  of  this  Common- 
wealth.   Not  even,  sir,  did  the  free  school  system  escape.    The  Board  of  Education, 


2786 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


controlling  the  expenditure  of  the  school  fund,  a  board  whose  influence  ramifies  every 
section  of  this  State,  will  indirectly  be  the  creature  of  the  Governor.  The  county  and 
city  superintendents,  directly  or  indirectly  will  be  appointed  by  that  board.  Five  of 
them  will  be  indirectly  the  appointees  of  the  Governor,  and  those  fi^e,  with  the  Gov- 
ernor, constitute  three-fourths  of  the  board.  The  other  one-fourth,  or  two  members 
are  elected  by  the  people,  but  the  Governor  is  given  power  to  suspend  them.  I  see 
that  a  gentleman  has  introduced  a  resolution  to  strengthen  the  grasp  of  the  Governor 
upon  the  militia  of  the  Commonwealth  by  fixing  it  as  a  constitutional  provision  that 
he  shall  also  have  the  right  to  appoint  the  Adjutant-General  of  the  State,  regardless 
of  what  the  people  or  their  representatives,  the  General  Assembly,  may  in  future  desire 
upon  this  point. 

And  now,  Mr.  President,  comes  the  Corporation  Commission  and  a  proposition  to 
give  the  Governor  the  power  to  appoint  that  commission,  so  that  he  may  wring,  if  he 
sees  fit  to  do  so,  whatever  campaign  fund  he  may  desire  out  of  the  corporate  wealth 
of  the  State.  I  want  it  understood  that  my  remarks  have  no  personal  application. 
They  apply  to  any  man  who,  in  the  past,  may  have  filled,  and  to  any  one  who  now  fills, 
or  in  the  future  may  fill,  the  chief  executive  office  of  this  State. 

We  hear  a  great  deal  of  discussion  about  political  machines  in  some  of  the  cities 
and  States  of  this  Union.  Those  machines  have  been  built  up  by  the  concentration 
of  the  patronage  of  those  communities  in  the  hands  of  one  or  a  few  men,  backed  by 
the  laws  which  enable  the  coterie  to  draw  on  the  corporate  wealth  of  the  communi- 
ties for  the  campaign  funds.  Here  you  are  putting  into  the  hands  of  one  man  the 
patronage  of  the  Commonwealth,  and  you  give  him  further  power  to  force  the  rail- 
road companies  and  other  corporations,  as  a  matter  of  self-preservation,  to  supply 
whatever  he  demands  in  the  nature  of  campaign  funds.  In  the  name  of  the  people,  I 
protest  against  it.  In  the  name  of  the  agricultural  people  of  this  State,  in  the  name 
of  the  brave  free  people  everywhere  who  wear  no  man's,  collar,  and  are  unwilling  to 
wear  any,  I  enter  my  solemn  protest  against  this  policy.  I  protest  aganst  the  at- 
tempt to  take  away  from  the  people  the  powers  they  have  the  intelligence  and  the 
capacity  to  discharge.  Why,  sir,  this  very  bill  here  indicates,  if  it  indicates  anything, 
and  I  believe  it  does,  that  the  people  of  Virginia  know  they  have  not  been  treated 
right  by  the  corporations  of  this  State,  and  therefore  they  have  demanded  this  com- 
mission for  the  purpose  of  adjusting  their  rights,  and  remedying  their  wrongs.  They 
have  had  that  intelligence,  and  we  must  admit  they  have  it,  because  they  sent  men 
to  this  body  for  the  enactment  of  this  measure.  Then,  surely  you  cannot  say  they  have 
not  the  intelligence  and  the  integrity  to  choose  the  men  to  administer  this  law.  I 
believe,  Mr.  President,  it  would  be  a  serious  blow  to  the  Constitution  to  incorporate 
this  provision  in  it.  I  agree  with  the  gentleman  from  Northampton  that  it  is  a  vital 
issue.  The  question  here  is  between  the  rights  of  the  people  on  the  one  hand  and 
concentrated  power  in  the  hands  of  one  man  on  the  other. 

The  public  oflSces  belong  to  the  people,  and  should  be  chosen  directly  by  them,  or 
indirectly  by  them,  through  their  servant,  the  General  Assembly. 

We  are  accustomed  to  regard  and  speak  of  the  Governor  as  the  most  prominent 
citizen  of  the  State;  not  only  the  Chief  Magistrate,  but  the  chief  citizen — the  head  of 
the  body-politic.  But  if  the  head  becomes  unduly  enlarged  the  political  fabric  will 
become  top-heavy,  and  will  tumble  to  the  ground. 

The  English  kings  used  to  hold  to  the  theory  that  the  people  had  no  rights  which 
the  sovereign  were  bound  to  respect,  but  the  Barons  gave  a  dose  to  the  doctrine  of 
Runnymeade  which  kept  it  asleep  for  seven  hundred  years.  The  report  of  this  com- 
mittee has  awakened  it  to  life  with  the  idea  that  the  people  have  no  rights  which 
this  Convention  may  not  take  from  them  and  concentrate  in  the  hands  of  one  man. 

Keep  this  provision  and  this  idea  in  the  Constitution  and  when  it  is  submitted 
to  the  people — and  in  one  form  or  another  it  will  go  to  them  for  ratification  or  rejec- 
tion— they  will  give  it  another  dose  from  which  it  will  be  impossible  to  arouse  it  for 
another  seven  hundred  years.     (Great  applause.) 


DEBATES  OE  THE  CONSTITUTIOI^AL  COXVEXTIOX  OF  VIRGIXIA.  2787 

Mr.  Braxton:  Mr.  President,  this  debate  has  proceeded,  I  think,  like  most  of  the 
debates  we  have  had,  with  a  great  deal  of  temperance  and  a  great  deal  of  patience,  and 
an  absolute  lack  of  personality,  with  one  exception.  The  gentleman  from  Danville 
has  seen  fit  to  devote  the  entire  time  of  his  discussion,  ten  minutes  in  this  case,  to 
what  seemed  to  me  to  be  a  veiled  intimation  that  the  Committee  on  Corporations  were 
influenced  by  some  unworthy  and  improper  motives,  in  changing,  as  he  says  they  did, 
their  views  on  the  question  as  to  how  this  commission  should  be  appointed. 

Mr.  Withers:  Why,  Mr.  Chairman,  it  was  a  mere  bit  of  raillery,  that  I  thought  the 
gentleman  would  understand.  There  was  nothing  in  the  world  veiled  in  it.  WTien  I 
want  to  make  an  intimation  of  improper  influence  I  will  do  it  directly.  It  was  just 
ridicule  of  the  proposition,  and  it  was  perfectly  fair  criticism. 

Mr.  Braxton:  Mr.  President,  I  am  very  glad  to  have  afforded  the  gentleman  an 
opportunity  to  state  what  he  has  stated.  I  think,  Mr.  President,  that  this  matter  should 
be  discussed  on  its  merits.  I  think  that  the  method  reported  by  your  committee  and 
adopted  by  the  Committee  of  the  Whole  is  the  wisest  method;  but  I  have  the  utmost 
respect  for  gentlemen  Avho  differ  from  me  on  that  subject,  and  I  think  we  should  discuss 
that  thing  on  its  merits  and  not  as  to  the  personnel.  However  sure  I  may  be  of  my 
ground,  I  concede  I  may  possibly  be  mistaken.  I  think  in  reference  to  this  matter 
we  should  look  at  it  absolutely  impersonally.  Here  is  a  proposition  which  has  been 
carefully  considered  by  this  body  and  passed  on  by  the  Committee  of  the  Whole.  The 
considerations  which  governed  us  were  these:  This  is  a  new  office,  untried,  one 
w^hich  requires  the  capacity  and  experience  of  business  men,  men  taken  from  private 
life,  and  not  public  men.  There  were  two  methods  which  we  thought  worthy  of  con- 
sideration, election  by  the  people  and  appointment  by  the  Governor.  I  am  free  to 
admit  that  either  one  of  them  is  capable  of  abuse.  The  first  appointments  under  this 
would  have  to  be  made  for  two,  four  and  six  years. 

Mr.  President  and  gentlemen  of  the  Convention,  I  wish  every  man  here  would  ask 
himself  if  he  knows  of  a  man  in  this  Commonwealth  who,  if  he  were  Governor,  he 
would  be  willing  to  appoint  one  whom  he  regards  as  fit  for  it,  whom  he  believes  could 
be  induced  to  abandon  his  business  and  enter  into  a  political  career  and  canvass  the 
State  from  one  end  to  the  other  on  the  possibility  of  getting  an  office  to  hold  for  two 
3'ears.  There  are  men  who  will  do  it,  I  am  perfectly  willing  to  concede,  but  I  ask  every 
man  present  here  to  ask  himself  if  he  knows  any  man  who  would  do  that  whom  he 
thinks  would  probably  be  a  proper  man  for  the  position. 

Mr.  Flood:  It  would  seem  to  me  that  the  better  the  man  is  the  more  apt  he 
would  be  to  do  that,  because  the  more  certain  he  would  be  that  he  would  succeed  him- 
self for  a  six-year  term  by  giving  satisfaction. 

Mr.  Braxton:  What  my  friend  says  sounds  very  well,  but  it  is  unfortunate  that  in 
political  campaigns  it  is  not  always  true  that  the  best  man  wins.  We  all  know  that  the 
man  who  is  trained  to  public  life,  who  is  a  skillful  public  debater,  who  is  familiar  with 
the  ins  and  outs  of  politics,  who  knows  how  to  play  upon  the  prejudices  of  the  people, 
has  a  great  advantage,  and  that  every  other  man  who  has  not  that  experience  has  abso- 
lutely no  show  with  him  in  a  popular  election  if  he  is  an  unknown  man. 

Now,  Mr.  President,  in  these  similar  institutions  that  are  spoken  of — I  do  not  say 
all  of  them,  but  all  I  have  been  able  to  hear  of — the  institution  was  started  and  put 
upon  its  feet  by  the  method  of  appointment,  because  the  men  could  be  by  that  method 
selected  and  not  merely  elected.  The  State  could  be  looked  over,  and  the  man  best 
fitted  for  the  position  that  the  people  are  not  familiar  with,  as  they  are  with  the 
judiciary,  could  be  selected,  and  if  the  Governor  abused  his.  power,  there  was  the 
Legislature  behind  him  to  check  him  in  it.  Then  the  institution  having  been  estab- 
lished and  put  upon  its  feet,  the  people  had  some  guide  to  go  by,  something  to  govern 
them;  and  my  excellent  friend  from  Rockingham  (Mr.  Keezell)  recognizes  that  fact 
when  he  suggests  that  this  commission  should  be  started  by  appointment,  and  can  then 
go  to  a  general  election  afterwards. 


2T88  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

I  think  any  man  who  will  ponder  on  this  thing  must  conclude  that  it  would  be 
absolutely  fatal  to  the  efficiency  of  this  measure  to  start  off  by  throwing  it  out  into 
politics  and  having  this  place,  which  should  be  filled  by  men  of  affairs,  and  men  of 
experience,  filled  only  by  professional  politicians  and  office  seekers.  When  those  men 
have  been  selected  and  put  into  office,  then,  if  you  choose,  say  whether  they  shall  be 
elected  by  the  people  or  whether  you  shall  continue  the  method  you  have  adopted.  The 
only  difference  between  me  and  my  friend  from  Rockingham  is  this:  He  agrees  with 
me  that  at  first  the  method  of  appointment  should  be  adopted,  but  he  thinks  after 
that  we  should  make  it  obligatory  to  go  to  election.  I  say  that  when  we  have  started 
on  that  plan  the  people  should  be  left  the  power  of  saying  whether  they  will  adhere  to 
it  or  depart  from  it,  according  to  the  experience  they  shall  have  had  with  it,  so  that 
if  they  want  it  they  can  keep  it,  and  if  they  do  not  want  it,  they  can  abandon  it. 

Your  Committee  on  Corporations  have  had  this  thing  earnestly  at  heart.  We  have 
had  no  personal  motives  to  subserve.  We  will  not  hold  the  office  ourselves.  We  have 
no  friends  who  are  candidates  for  it.  We  have  but  one  earnest  wish,  and  that  is  that 
this  victory  we  have  won  after  so  much  labor  and  so  much  effort  shall  not  be  made 
a  fruitless  one,  and  that  this  institution  we  have  established  here  shall  not  be  made  a 
mere  football  of  politics,  but  shall  be  made  an  efficient  institution  that  will  do  justice 
and  carry  out  the  just  hopes  and  expectations  of  its  friends;  and  we  earnestly  ask  the 
Convention  not  to  come  forward  now,  after  this  method  has  been  carefully  considered 
and  twice  passed  upon,  and  engraft  upon  this  provision  a  plan  which  those  of  us 
who  have  spent  so  much  time  in  the  consideration  of  it  earnestly  believe  will  impair 
the  efficiency  of  this  body  at  least  fifty  or  seventy-five  per  cent.  Let  us  start  in  on 
the  method  we  have  agreed  upon;  then,  if  it  should  transpire  that  that  method  is  not 
satisfactory,  I,  for  one,  will  do  all  I  can  to  adopt  the  method  which  my  friends  here 
think  is  wisest;  but  if  you  attempt  to  start  in  on  your  method,  and  it  should  turn  out 
to  be  a  disappointment  to  you,  although  you  might  lament  the  day  you  advocated  it, 
you  can  never  depart  from  it. 

Mr.  Flood:  I  wish  to  ask  the  gentleman  if  he  could  not  accomplish  the  result  he 
has  in  view  or  avoid  the  danger  he  suggests,  by  leaving  it  to  the  Legislature  to  fix  the 
method  of  electing  this  commission? 

Mr.  Braxton:  I  think  not,  sir.  I  think  we  would  be  playing  more  into  the  lion's 
mouth  by  that  than  by  any  other  method  we  can  get.  I  think  one  of  the  two  methods, 
the  appointment  by  the  Governor  and  the  confirmation  by  the  Le2;is]atnre.  or  the  direct 
election  by  the  people,  is  the  one  we  should  adopt.  I  want  to  adopt  a  course  that  will 
give  us  the  benefit  of  both  of  them,  and  the  experience  of  both  of  theni.  I  know^that  if 
we  start  with  popular  elections  we  can  never  leave  it,  though  we  may  lament  more 
than  anybody  else  that  we  ever  adopted  it.  If  we  start  off  with  the  other  method  and 
should  be  disappointed  in  it,  we  can  leave  it  and  go  to  the  vote  of  the  people. 

Mr.  Keezell:  Is  it  not  true  that  if  your  plan  of  appointment  is  adopted,  it  will  be 
impossible  for  the  people  to  have  control  of  that  board  for  at  least  ten  years  from 
now?  Two  of  the  terms  will  have  expired,  and  men  will  have  been  appointed  for  two 
full  terms  by  the  Governor,  which  would  carry  it  over  for  about  ten  or  eleven  years. 
I  have  not  made  the  calculation  exactly. 

Mr.  Braxton:    After  1908  the  other  method  can  be  resorted  to. 

Mr.  Keezell:  It  can  be  resorted  to  but  you  will  have  two  men  there  who  have 
been  appointed  for  six  years,  and  they  will  be  a  majority  of  the  board.  The  first  one 
who  can  be  elected  by  the  people  will  be  the  man  wiio,  under  the  appointment,  will 
serve  longest. 

Mr.  Braxton:  I  think  for  a  method  of  that  sort  eight  years  is  a  reasonable  time  to 
experiment  either  with  the  election  by  the  people  or  the  appointment  by  the  Governor. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Danville  (Mr.  Withers). 

The  question  having  been  taken  by  ayes  and  noes,  the  vote  was  announced — ayes, 
25;  noes,  '62. 


DEBATES  or  THE  COXSTITUTIOls^AL  CONVEXTIOX  OF  VIKGINIA. 


2789 


The  amendment  was  rejected. 

Mr.  Flood:    I  offer  the  following  amendment: 

The  Secretary  read  as  follows: 

Strike  out  the  words  "  appointed  by  the  Governor,  subject  to  confirmation  by  the 
General  Assembly  in  joint  session,"  and  insert  the  words  "  elected  by  the  General 
Assembly." 

At  this  point,  Mr.  Ayers  took  the  chair  as  presiding  officer. 

Mr.  Braxton:  Mr.  President,  I  just  want  to  say,  on  behalf  of  the  Committee  on 
Corporations,  that  so  far  as  they  were  able  to  consider  this  matter,  they  thought  the 
method  of  electing  by  the  Legislature  was  decidedly  the  worst  method  of  the  three; 
that  it  had  almost  all  of  the  disadvantages  and  none  of  the  advantages  of  either  of 
the  other  two.    We  trust  the  amendment  will  be  voted  down. 

Mr.  Flood:  Mr.  President,  I  wish  to  submit  one  or  two  suggestions  to  indicate 
why  I  think  the  Legislature  is  the  better  tribunal  to  be  entrusted  wiOi  this  power  than 
the  Governor.  What  I  said  in  connection  with  the  election  of  the  people  does  not  apply 
with  equal  force,  but  it  is  to  a  degree  applicable  to  the  election  by  the  Legislature. 
My  distinguished  friend  from  Staunton  (Mr.  Braxton)  says  that  this  is  the  very  worst 
method  of  appointment.  I  think  it  is  the  next  best.  I  think  election  by  the  people  is 
best,  election  by  the  Legislature  is  next,  and  appointment  by  the  Governor  is  the  very 
worst  method  that  could  be  adopted. 

Mr.  President,  by  this  Constitution,  if  it  ever  goes  into  effect,  we  have  provided  that 
the  Legislature  can  elect  the  judges  of  the  Supreme  Court  of  Appeals.  Certainly  those 
positions  require  as  technical  knowledge  as  would  be  required  of  a  member  of  this 
commission,  and  if  the  Legislature  is  competent  to  elect  the  judges  of  the  highest  court 
in  the  Commonwealth,  it  is  competent  to  elect  the  members  of  an  inferior  court.  The 
gentleman  says  you  would  have  politicians.  I  should  like  to  ask  him  if  the  complaint 
has  ever  been  offered  against  the  Court  of  Appeals  of  this  State  that  positions  on  it 
were  filled  by  politicians  by  reason  of  the  fact  that  their  appointment  did  not  vest  in  a 
bureau  of  patronage  to  consist  of  the  Governor  of  this.  State. 

Why,  sir,  the  Legislature  has  elected  the  judges  of  all  of  our  courts  for  the  last 
forty  years,  and  there  has  been  no  complaint  except  in  rare  instances,  of  the  exercise 
of  that  power  on  the  part  of  the  Legislature;  and  now,  when  we  come  to  create  a  court, 
inferior  to  courts,  that  have  been  elected  by  the  Legislature.  I  appeal  to  gentlemen  on 
this  floor  to  know  if  there  is  any  sound  reason  why  this  power  should  not  be  entrusted 
to  the  Legislature.  All  of  us,  Mr.  President,  want  to  see  this  Constitution  ratified  by 
the  people.  Surely  there  are  none  of  us  here  to-day  who  do  not  believe  that  in  one 
shape  or  another  it  is  going  before  the  people  for  ratification  or  rejection. 

Can  we  afford,  in  this  important  matter,  in  the  constitution  of  this  commission 
which  has  been  created,  to  answer  a  demand  made  by  the  people  for  a  tribunal  to 
determine  their  rights  against  the  corporate  powers  of  this  Commonwealth,  to  say  that 
the  people  or  even  the  people's  representatives  are  not  intelligent  enough,  and  not 
patriotic  enough  to  select  this  tribunal.  I  believe  the  collective  wisdom  of  140  men, 
chosen  by  the  people,  is  a  safer  repository  of  this  power,  than  that  of  one  man,  though 
that  man  be  one  of  the  seven  sages.,  instead  of  an  ordinary  Governor. 

The  Presiding  Officer:  The  question  is  upon  the  amendment  of  the  gentleman  from 
Appomattox  (Mr.  Flood). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes 
28,  noes  33. 

The  amendment  was  rejected. 

Mr.  Keezell:  I  desire  now  to  offer  the  amendment  I  undertook  to  offer  as  a  substi- 
tute for  the  amendment  of  the  gentleman  from  Danville  (Mr.  Withers),  which  was  ruled 
out  of  order. 

Strike  out,  beginning  with  line  67,  after  "  the  first  day  of  January,  1908,  the  Gen- 


2790  DEBATES  OE  THE  COXSTITUTIOJTAL  CONVENTION  OE  VIRGINIA. 

eral  Assembly  may  provide  by  law  for  the  election  of  the  said  commission  by  the  people 
of  the  State  at  large,  instead  of  their  appointment  by  the  Governor,  as  hereinbefore 
required,"  and  insert  in  lieu  thereof  the  following:  "As  the  terms  of  office  of  the  com- 
missioners first  appointed  under  this  ordinance  expire,  their  successors  shall  be  elected 
by  the  people  of  the  State  at  large,  and  the  General  Assembly  shall  provide  by  law  for 
such  election." 

Mr.  President,  I  believe  it  has  been  stated  here  by  the  chairman  of  the  Committee 
cn  Corporations  (Mr.  Braxton)  that  it  has  been  the  custom,  in  almost  every  State  of 
the  Union  where  a  commission  of  this  sort  was  inaugurated,  to  put  it  in  force  by 
appointment.  Later  on  these  officers,  in  many  instances,  are  elected  by  the  people. 
That  had  been  my  idea  of  the  proper  method  in  which  to  start  this  matter  in  Virginia, 
and  I  believe  that  by  adopting  the  amendment  I  have  offered  you  would  have  the 
advantages  of  what  is  asked  for  in  the  report  of  the  committee  and  the  advantages  to 
be  gained  by  the  purpose  sought  by  the  gentleman  from  Danville  (Mr.  Withers),  and 
those  who  agreed  with  him;  and  if  we  leave  this  proviso  here,  that  the  Legislature  may, 
after  1908,  decide  to  elect  these  commissioners  by  the  people,  what  is  the  result  of  it? 
You  have  taken  away  from  the  people  the  right  to  select  a  majority  of  this  commission 
until  1911.  That  is  the  first  time  when  a  majority  of  these  members  may  be  chosen  by 
the  people.  The  plan  proposed  in  the  amendment  I  have  offered  would  allow  a  majority 
elected  by  the  people  to  take  control  of  this  board  in  1907,  four  years  earlier.  It  simply 
makes  it  obligatory  that  as  the  terms  of  these  officers  expire,  the  places  of  those  first 
appointed  shall  be  filled  by  election  by  the  people. 

I  believe  that  if  there  is  any  one  set  of  officers  that  the  people  of  Virginia  ought  to 
select  or  have  the  right  to  select,  it  is  the  members  of  this  Corporation  Commission.  I 
have  heard  it  stated  here  upon  this  floor  that  the  people  take  no  interest  in  this  matter, 
as  to  whether  these  officers  are  appointed  or  elected,  and  care  very  little  about  it  in  any 
way,  shape,  or  manner.  I  wish  to  state  to  you,  Mr.  President^  that  so  far  as  my  section 
of  the  State  is  concerned,  the  people  are  interested  in  the  creation  of  this  Corporation 
Commission,  and  in  giving  it  such  power  as  will  give  them  relief,  as  they  think,  from 
the  ills  which  they  suffer,  more  than  they  are  in  anything  else  this  Convention  has  done. 
I  do  not  want  to  undertake  to  cripple  the  commission,  or  to  tie  its  hands,  by  allowing 
it  to  be  appointed  in  such  a  way  that  after  all  the  wishes  of  the  people  and  their  ex- 
pectations may  be  thwarted.  I  want  to  allow  the  people  an  opportunity  at  the  very 
earliest  day  possible  to  undertake  to  elect  these  officers,  and  to  elect  such  men  as  will 
carry  out  their  wishes  and  do  fairly  right  by  them,  as  well  as  by  the  corporations  in 
the  State. 

Mr.  Barbour  proposed  to  amend  the  amendment  proposed  by  the  gentleman  from 
Rockingham,  so  that  it  would  read: 

As  the  terms  of  office  of  the  commissioners  first  appointed  under  this  ordinance 
expire,  their  successors  may  be  elected  by  the  people  of  the  State  at  large,  and  the 
General  Assembly  may  provide  by  law  for  such  election. 

Mr.  Braxton:  Mr.  President,  I  will  deal  frankly  with  the  Convention,  and  state 
that  in  my  opinion  and  in  the  opinion  of  those  who  signed  the  majority  report  of  the 
Committee  on  Corporations,  the  amendment  proposed  by  the  gentleman  from  Rocking- 
ham (Mr.  Keezell)  is  very  much  better  than  the  amendment  proposed  by  the  gentleman 
from  Danville  (Mr.  Withers),  or  the  gentleman  from  Appomattox  (Mr.  Flood).  We 
were  earnestly  of  opinion  that  if  we  provided  for  election  at  the  start,  that  if  these 
people  were  not  appointed  at  the  beginning,  it  would  be  almost  destructive  of  the 
measure;  but  as  that  matter  has  been  disposed  of,  the  question  arises  now,  if  the  Gov- 
ernor shall  appoint  the  first  ones,  how  shall  we  elect  the  others? 

The  difference  between  ourselves  and  the  gentleman  from  Rockingham  is  this: 
The  effct  of  his  amendment  will  be  that  after  we  shall  have  experimented  with  the 
method  of  appointment  and  after  we  shall  have  the  benefit  of  actual  experience,  where 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOX  OE  VIEGIXIA. 


2791 


we  now  have  mere  theory,  notwithstanding  the  fact  that  our  experience  shall  have 
shown  that  that  is  a  most  satisfactory  method,  and  one  that  everybody  will  want  to 
perpetuate,  we  will  he  obliged,  nolens  volens,  to  abandon  one  which  has  proven  its  effi- 
ciency by  experiment,  and  adopt  one  which  remains  entirely  in  theory. 

Now,  Mr.  President,  I  will  not  detain  the  Convention  long,  if  they  will  indulge  me 
with  their  attention  a  few  moments.  There  are  undoubtedly  advantages  and  disad- 
vanges  attending  either  the  election  of  these  people  or  their  appointment.  In  some  of 
the  States  the  appointment  has  been  found  defective,  and  the  people  have  adopted 
election.  In  other  words,  the  election  has  been  found  disastrous  and  the  people  have 
been  unable  to  let  it  go.  In  California  it  was  required  that  they  should  be  elected  by 
the  people,  and  my  information  is  that  that  has  been  the  most  inefficient,  the  most  dis- 
appointing corporation  commission  in  the  United  States.  In  Georgia  the  method  has 
been  by  appointment,  and  their  experience  is,  and  I  believe  it  is  generally  conceded, 
that  they  have  the  most  efficient  and  the  most  satisfactory  Corporation  Commission  in 
the  United  States,  and  they  have  had  appointments  here  for  nearly  twenty  years. 

So  that  we  say  that  as  to  whether  the  appointment  or  the  election  will  be  best  de- 
pends upon  the  experience  we  may  have  with  it.  The  effect  of  the  report  as  it  now 
stands  is  that,  having  experimented  with  one  system,  we  shall  be  set  at  liberty  either 
to  retain  it  or  to  abandon  it,  according  as  that  experience  will  show  us. 

The  effect  of  the  amendment  of  the  gentleman  from  Rockingham  would  be  to  say 
that  when  we  have  experimented  with  it,  when  we  have  tested  it  and  found  that  it  has 
measured  up  to  all  of  our  expectations  and  we  want  it,  we  shall  be  obliged  to  abandon 
it  whether  we  wish  or  not,  and  embark  upon  a  field  of  untried  experiment,  and  even  if 
experience  has  shown  that  it  is  satisfactory  by  election  by  the  people,  we  cannot  let 
it  go. 

It  seems  to  us  it  is  best  to  give  us  the  advantage  of  testing  both  methods,  and  of 
taking  either  one  of  the  two,  not  that  which  your  theory  may  say  is  best,  but  that  which 
in  the  light  of  actual  experiment  shall  have  proven  itself  to  have  been  the  best. 

The  amendment  offered  to  the  amendment  by  my  friend  from  Culpeper  (Mr.  Bar- 
bour) removes  this  difficulty.  The  effect  of  his  amendment  is  to  say  that  they  may 
abandon  it,  or  they  may  adhere  to  it,  as  their  experience  shows  best;  and  that  I  think  it 
is  certainly  a  great  advantage  over  the  obligatory  words  used  in  the  amendment  of  the 
gentleman  from  Rockingham.  The  only  objection  I  have  to  the  amendment  in  the  form 
in  which  it  will  be  as  amended  by  the  amendment  of  the  gentleman  from  Culpeper  is 
that  it  will  take  effect  before  we  can  have  the  opportunity  of  experimenting  with  it. 
We  can  experiment  with  this  matter  under  the  first  form  for  five  years,  and  if  in  that 
time  it  has  proven  itself  inefficient,  we  can  abandon  it,  in  1908,  and  in  1909,  the  very 
next  year,  we  can  have  an  officer  elected  by  the  people,  and  in  1911,  two  years  after- 
vx^ards,  the  next  officer  elected  by  the  people,  and  in  1913  and  so  on,  and  so  on. 

So  it  does  seem  to  me,  Mr.  President,  and  gentlemen  of  the  Convention,  that  in  the 
interest  of  stability,  so  that  we  can  have  a  long  enough  time  to  make  the  experiment  of 
any  value  to  us,  we  should  at  least  let  this  thing  stand  for  five  years.  You  have  an 
untried  method  of  taxation  which  you  are  going  to  experiment  with  for  ten  years,  and 
yet  we  ask  you  to  give  this  whole  thing  a  test  of  only  five  years. 

Then  you  can  abandon  it,  if  you  choose,  and  immediately  go  to  the  other  method. 
We  ask  that  when  you  have  tested  it,  you  leave  yourself  in  a  position  to  either  retain 
it  or  abandon  it  as  you  may  choose. 

The  Presiding  Officer:  The  question  is  upon  the  amendment  offered  by  the  gentle 
man  from  Culpeper  (Mr.  Barbour)  to  the  amendment  of  the  gentleman  from  Rocking- 
ham (Mr.  Keezell). 

The  question  having  been  taken,  the  result  was  announced — ayes  46,  noes  16. 
Mr.  Eggleston:    I  offer  the  following  substitute  for  the  amendment  offered  by 
the  gentleman  from  Rockingham. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


In  line  69,  Section  3,  after  the  words  "  State  at  large,"  insert  the  words  "  or  by 
the  joint  vote  of  the  two  houses  of  the  General  Assembly,"  so  that  it  will  read: 

After  the  first  day  of  January,  1908,  the  General  Assembly  may  provide  by  law  for 
the  election  of  said  commissioners  by  the  people  of  the  State  at  large,  or  by  the  joint 
vote  of  the  two  houses  of  the  General  Assembly,  instead  of  their  appointment  by  the 
Governor,  as  hereinbefore  required. 

Mr.  President,  it  seems  that  even  the  committee  have  been  compelled  to  acknowl- 
edge that  in  one  respect  they  may  possibly  have  made  a  mistake.  They  undertake  to 
provide  for  that  emergency  by  saying  that  after  the  year  1908  the  General  Assembly 
may  provide  for  the  election  of  these  commissioners  by  the  people.  Now,  Mr.  Presi- 
dent, they,  top,  might  be  a  mistake.  If  the  Committee  on  Corporations  could  possibly 
make  a  mistake,  and  I  just  want  to  enlarge  the  alternative,  so  as  to  provide  that  in 
case  both  the  people  and  the  Corporations  Committee  are  mistaken,  you  may  leave  the 
election  of  these  commissioners  to  the  joint  vote  of  the  two  houses  of  the  General 
Assembly.  It  just  gives  future  generations  more  latitude  in  the  method  of  electing 
these  commissioners  than  is  given  by  the  committee. 

Mr.  Braxton:  Mr.  President,  I  hope  this  amendment  will  not  be  adopted.  The 
Committee  on  Corporations  not  only  admit  that  they  may  be  wrong  in  one  respect,  but 
they  may  be  wrong  in  many  respects,  and  nobody  is  more  sensible  of  their  shortcomings 
than  the  Committee  on  Corporations.  But,  Mr.  President,  after  having  given  this  the 
most  careful  thought  we  are  capable  of,  we  were  as  far  as  I  know  of  unanimously  of 
opinion  that  the  election  by  the  Legislature  was  the  most  undesirable  method.  If  it 
should  ever  become  necessary  to  do  that,  it  can  be  done  by  a  Constitutional  amendment. 
The  danger  of  putting  in  the  amendment  that  my  friend  from  Charlotte  offers,  is  that 
it  would  put  it  in  the  power  of  the  Legislature  to  take  to  themselves  the  right  of 
appointing  or  electing  these  officers. 

Now,  if  it  is  a  question  between  letting  the  appointment  remain  with  the  Governor 
or  transferring  it  to  the  people,  we  thought  the  Legislature  could  act  in  an  impartial 
manner,  but  if  it  came  to  be  a  question  of  whether  the  Legislature  would  leave  it  with 
the  Governor  or  take  it  hemselves,  we  thought  they  were  not  safe  judges  in  a  matter  of 
that  sort;  and  I  submit  to  this  Convention  that  it  would  be  dangerous  without  any 
inethod  of  Constitutional  amendment,  to  say  to  the  Legislature  "  you  can  take  this 
power  from  the  Governor,  and  not  give  it  to  somebody  else,  but  take  it  from  them,  and 
take  it  yourself,"  The  inducement,  the  temptation  to  do  that  would  be  very  great,  and 
just  as  it  is  a  maxim  that  we  all  recognize  that  no  man  should  be  judge  in  his  own  case, 
so  do  we  think  it  would  be  unwise  to  invest  in  any  body  the  power  to  take  away  from 
any  other  person  the  appointment  or  election  and  assuming  it  for  themselves. 

If  the  question  comes  whether  it  shall  be  conferred  on  the  Legislature,  then  let  it 
be  done  by  Constitutional  amendment,  and  not  by  the  Legislature  themselves.  They  are 
but  men,  like  we  are,  and  the  temptations  to  aggrandize  themselves  by  taking  this 
power  from  the  Governor  would  inevitably  bias  their  judgment.  It  seems  to  me  it 
would  be  a  dangerous  thing  to  allow  them  to  change  this  in  any  way  except  by  chang- 
ing it  from  the  Governor  to  the  people.  If  they  had  had  any  controversy  with  the 
Governor,  if  they  had  by  any  means  any  jealousy  with  him,  if  they  wanted  to  defeat 
him,  there  would  be  every  tendency  on  their  part  to  assume  this  power  themselves,  and 
not  to  act  in  an  impartial,  judicial  and  disinterested  manner. 

Mr.  Eggleston:  I  desire  to  ask  the  gentleman  if  he  is  aware  of  the  fact  that  the 
Legislature  has  not  exhibited  such  greed  heretofore  in  the  question  of  taking  to  them- 
selves power;  that  since  1887  they  could  at  any  time  have  changed  the  law  and  taken  to 
themselves  the  election  of  the  Commissioner  of  Agriculture,  and  they  have  not  done  so; 
that  only  four  years  ago,  when  they  created  the  position  of  Labor  Commissioner,  they 
gave  the  appointment  to  the  Governor.  Now,  I  submit  that  to  fair  minded  men  such  an 
argument  as  that,  in  The  light  of  the  past,  should  have  no  weight. 

The  Legislature  has  not  done  so  in  the  past  and  the  gentleman  from  Augusta  has 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIEGIXIA. 


2793 


no  right  to  assume  that  they  are  going  to  do  such  a  thing  in  the  future,  in  defiance  of 
the  wishes  and  interests  of  the  people  of  the  State. 

Mr.  Braxton:  I  Avill  say  in  reply  to  my  friend's  suggestion,  that  I  am  not  attribut- 
ing any  unusual  greed  to  the  Legislature;  but  I  am  merely  treating  them  as  human 
beingS;  like  other  people  are,  subject  to  the  same  impulses  and  the  same  ■vi'eaknesses. 
As  to  T^-hat  they  have  done  with  the  Commissioner  of  Agriculture  and  the  Commissioner 
of  Labor,  I  submit  to  the  Convention  that  the  temptation  to  elect  these  officers  is  noth- 
ing compared  to  the  temptation  to  elect  three  railroad  commissioners,  with  salaries  of 
$4,000  a  year  apiece.  There  is  no  comparison,  and  I  do  think  it  would  be  a  dangerous 
thing  to  put  into  their  hands  the  sole  question  of  saying  whether  they  shall  assume 
and  take  away  from  the  Governor  this  important  function. 

Mr.  Barbour:    I  call  the  pending  question. 

The  pending  question  was  ordered. 

The  Presiding  Officer:  The  question  is  upon  the  amendment  offered  by  the  gentle- 
man from  Charlotte  (Mr.  Eggleston). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced — ayes 
15,  noes  45. 

The  amendment  to  the  amendment  was  rejected. 

The  Presiding  Officer:  The  question  recurs  upon  the  amendment  offered  by  the 
gentleman  from  Rockingham  (Mr.  Keezell),  as  amended  by  the  amendment  of  the  gen- 
tleman from  Culpeper  (Mr.  Barbour). 

The  question  having  been  taken,  the  result  was  announced — ayes  23,  noes  27. 

The  amendment  was  rejected. 

Mr.  O'Flaherty:  I  move  to  strike  out  the  word  "'may,"  in  line  68,  and  insert  the 
word  "shall,"  so  that  the  section  will  read:  '"'After  the  first  day  of  January,  1908,  the 
General  Assembly  shall  provide  by  law,"  &c. 

The  amendment  was  rejected. 

Mr.  Blair:    I  offer  the  following  amendment: 

After  the  figures  "  1908  "  in  line  67,  insert  the  following: 

As  long  as  the  Governor  shall  have  the  appointment  of  said  commissioners,  not 
more  than  two  of  them  shall  be  appointed  from  the  same  political  party. 

The  amendment  was  rejected. 
Section  3  was  adopted. 

On  motion  of  Mr.  Braxton  the  Convention  adjourned  until  to-morrow.  Saturday-, 
March  1,  1902.  at  10  o'clock  A.  M. 


SATURDAY,  March  1,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  J.  D.  Langley,  of  Richmond. 

TAXATION  AND  FINANCE. 

Mr.  Turnbull:    I  offer  the  amendment  I  send  to  the  Secretary's  desk. 

Amendment  to  Section  16  of  report  of  the  Committee  on  Taxation  and  Finance. 
Add  at  the  end  of  sub-section  B  the  following:  "But  the  exemption  mentioned  in  this 
stib-section  shall  not  apply  to.  any  industrial  school,  individual  or  corporate,  not  the 
property  of  this  State,  that  contracts  for  work  of  any  kind,  establishes  workshops,  print- 
ing establishments  or  factories  of  any  kind,  that  do  work  for  compensation  or  manu- 
facture articles  for  sale  in  competition  with  like  workshops  or  factories  in  the  com- 
munity in  which  such  school  is  located." 
176 — Const.  Deb. 


3794  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

Mr.  TurnbuU:    I  ask  that  the  amendment  lie  on  the  table  and  be  printed. 
The  President:    So  ordered. 

CORPORATIONS. 

The  President:  The  unfinished  business  is  the  report  of  the  Committee  on  Cor- 
porations. 

Section  4  was  taken  up  and  considered  by  sub-sections. 

Sub-sections  A,  B  and  C  were  read,  amended  with  a  view  of  making  the  sense 
clearer,  and  adopted. 

Sub-section  3  was  then  read. 

Mr.  Thorn:  In  line  206,  is  there  not  a  consequential  amendment  due  to  one  of  the 
amendments  made  this  morning?  The  clause  in  reference  to  the  appeal  bond,  "  shall 
first  have  been  executed,  filed  with  and  approved  by  the  said  commission  "  should  have 
this  amendment  after  the  word  "  commission  "  "  or  on  review  or  on  appeal  "  "  from  the 
Supreme  Court  of  Appeals."  You  have  given  an  appeal  this  morning  from  the  action 
of  the  commission  in  refusing  to  approve  an  appeal  bond. 

Mr.  Braxton :  I  would  like  to  ask  my  friend  if  the  language  now  used  does  not  sub- 
stantially accomplish  the  purpose? 

Mr.  Thorn:  The  judgment  of  the  Court  of  Appeals  is  not  the  judgment  of  a  lower 
court. 

Mr.  Braxton:    Not  after  it  has  been  corrected? 

Mr.  Thom:  Not  unless  you  require  the  commission  to  enter  the  order  of  the  Court 
of  Appeals  as  its  own  order,  and  I  think  that  is  shown  from  the  fact  that  this  is  the 
language  you  had  in  your  article  prior  to  giving  this  appeal  on  the  subject  of  the  bond. 
At  any  rate,  it  would  do  no  harm,  and  I  think  it  would  make  it  very  much  clearer. 

Mr.  Braxton:  I  would  state  it  v^^as  always  our  idea  that  the  ruling  of  the  com- 
mission in  this  matter  might  be  made  subject  to  the  appeal,  because  we  provide  that 
the  Legislature  can  grant  an  appeal  from  any  action.  It  was  also  our  idea  that  if  an 
appeal  was  granted  from  such  decision  by  the  commission  and  the  court  reversed  it, 
the  court  would  direct  the  commission  to  make  the  proper  order,  so  it  would  be  the 
order  of  the  commission  approving  it  after  all,  although  entered  upon  the  requirement 
of  the  Court  ot  Appeals. 

Mr.  Thom:  There  is  nothing  in  the  article  to  require  the  commission  to  enter  as 
its  own  order  the  order  of  the  Court  of  Appeals.  As  it  stands  now  the  order  of  the 
Court  of  Appeals  takes  the  place  of  the  orders  of  the  commission. 

Mr.  Braxton:  I  will  state  to  my  friend  that  those  of  the  Committee  on  Corpora- 
tions whom  I  have  been  able  to  confer  with  think  the  amendment  made  by  the  gentle- 
man is  not  necessary,  and  that  the  clause  as  it  now  reads  would  cover  the  point  he 
w^ants,  that  if  the  Court  of  Appeals  reverses,  upon  appeal,  the  decision  of  the  com- 
mission, refusing  to  approve  the  bond,  they  will  require  the  commission  to  enter  that 
order  and  it  will  be  entered  as  the  order  of  the  commission,  although  required  to  do 
so  by  the  court. 

Mr.  Thom:  I  do  not  at  all  agree  with  the  gentleman,  Mr.  President,  and  if  the 
committee  will  not  adopt  this  very  plain  amendment  which  can  have  nothing  in  it  except 
to  m,ake  legally  clear  what  is  intended,  I  shall  have  to  ask  the  Convention  itself 
consider  the  amendment. 

I  dislike  exceedingly  to  take  up  any  of  the  time  of  this  Convention  on  this  matter. 
I  should  not  do  so  if  I  were  not  forced  into  the  position.  I  have  no  desire  and  I  think 
I  can  appeal  to  the  sense  of  justice  of  this  body  that  I  have  thrown  in  the  way  of  this 
report  to  which  I  am  greatly  opposed  no  captious  or  improper  opposition. 

My  effort,  since  this  Convention  has  shown  its  purpose  to  adopt  the  policy  indi- 
cated in  this  report,  has  been  to  do  everything  that  I  could  possibly  do  to  perfect  its 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIKGIXIA. 


2795 


Tv-ork.  and  to  give  to  the  Constitution  of  tlie  State  an  article  as  perfect  as  the  policy 
^^•hich  has  been  adopted  ^'ould  permit.  In  that  spirit  I  proposed  to  this  committee 
this  morning  an  amendment  made  absolutely  necessary  by  another  amendment  pro- 
posed by  the  committee  itself,  and  about  vhich  I  feel  that  I  am  not  met  in  the  same 
spirit  ^\-ith  which  I  have  approached  this  committee.  This  morning,  in  addition  to  the 
appeals  which  have  been  given  heretofore  by  the  article  as  printed,  this  right  of  appeal 
is  given,  in  plain  terms.  In  section  D  on  page  13,  line  163,  in  addition  to  the  printed 
right  of  appeal  embraced  in  that  article,  this  right  is  given: 

Or  refusing  to  provide  a  suspending  bond  or  requiring  additional  security  on  this 
f    bond,  or  an  increase  thereof  as  provided  in  stib-section  E  of  this  section. 

So  that  now.  in  special  terms,  in  addition  to  the  appeal  permitted  by  this  printed 
8.-rticle,  in  order  to  make  clear  that  among  the  appeals  provided  for  by  this  printed 
article  is  the  one  which  I  now  hold  in  my  hand,  in  the  handwriting  of  the  chair- 
man of  this  committee.  So  that  a  party  decided  against  by  this  commission  has  the 
right  in  the  event  a  bond  is  tendered,  to  suspend  the  operation  of  the  commission's 
.order,  which  bond  is  refused  by  the  commission  to  take  that  refusal  to  the  Court  of 
appeals  and  to  present  tc-  it  the  bonds  and  ask  its  approval  of  the  bond,  the  approval 
of  which  has  been  withheld  by  the  commission.  Xow  I  ask  the  candor  of  the  gentle- 
men of  this  Convention  if  when  that  order  approving  in  the  Court  of  Appeals  the 
bond  rejected  in  the  court  below  is  given,  whether  the  effect  of  the  bond  thus  ap- 
proved on  appeal  should  not  be  the  same  as  this  originally  approved  by  the  commis- 
sion itself?  Thus  far,  there  will  be  no  difference  between  the  committee  and  myself, 
but  the  singular  attitude  of  mind  is  presented  by  these  gentlemen  in  response  to  a 
friendly  suggestion  of  an  amendment,  that  their  language  in  reference  to  the  effect  of 
this  bond  on  appeal  shall  not  be  changed,  so  as.  certainly,  to  be  made  broad  enough 
to  permit  the  approval  by  the  Court  of  Appeals  itself.  And  the  suggestion  is  made  in 
response  and  in  opposition  to  that,  that  approval  by  the  commission  is  broad  enough  to 
cover  not  only  approval  by  the  commission,  but  approval  by  the  Court  of  Appeals  on 
appeal  from  the  commission. 

Xow,  gentlemen,  lawyers  may  differ  about  the  effect  of  that.  The  Court  of  Appeals 
may  or  may  not  be  driven  to  gi"e  that  interpretation  to  the  language  provided  by  the 
committee,  but  I  ask  the  lawyers  of  this  Convention  and  the  laymen,  too,  whether  or 
not  it  is  good  draftsmanship  to  leave  that  question  in  the  region  of  litigation  and 
controversy,  or  to  make  it  plain  by  the  introduction  of  a  single  word.  It  will  not  do 
for  gentlemen  to  contend  that  a  law  may  properly  be  passed  directing  this  commis- 
sion to  enter  as  its  ovtl  order  an  order  of  the  Court  of  Appeals.  That  may  or  may  not 
be  done.  That  ma^'  or  may  not  be  overlooked.  That  these  matters  may  occur  in  the 
vacation  of  the  General  Assembly  where  there  could  be  no  relief. 

You  have  already  provided  there  for  an  appeal.  We  are  now  providing  for  the 
bond.  I  want  to  make  the  bond  become  effective  not  only  by  approval  of  the  com- 
mission disapproving  the  bond  and  that  appeal  is  successful,  to  make  the  bond  become 
effective  upon  the  approval  of  it  by  the  Court  of  Appeals.  Xow,  is  that  right,  or  not? 
I  call  the  attention  of  the  gentlemen  of  this  Convention  to  the  fact  that  there  has  been 
no  attempt  made  upon  the  policy  of  this  article.  I  have  surrendered  my  firm  and  unal- 
'  terable  conviction  on  the  subject  of  this  policy  in  good  faith,  and  I  hope  with  good 
grace,  to  the  majority  purpose  of  this  Convention.  Yet,  in  a  mere  matter  of  perfecting 
a  method  of  procedure,  in  a  mere  matter  of  making  this  program  work  out  in  the  ends 
01  justice.  I  am  met  by  these  gentlemen  of  the  committee  with  the  firm  unbroken 
purpose  to  stick  to  the  dreftsmanship  of  an  article  which,  as  I  have  heard  said 
upon  the  floor  of  this  Convention  this  morning,  only  needs  to  be  read  over  for  the 
committee  itself  to  get  up  and  amend  it  at  every  line.  Yet  whenever  a  word  or  a  sug- 
gestion is  made  by  gentlemen  in  the  minority  in  regard  to  the  policy,  they  are  met 
by  an  obstinate  refusal  to  listen  to  their  voice  on  any  matter,  even  of  perfecting  a 
detail. 


2796  DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTION  OF  VIRGINIA. 

Gentlemen,  I  appeal  against  the  justice  and  equity  of  that  position.  However  much 
members  of  this  Convention  have  from  time  to  time  differed,  I  have  never  seen  them 
v/illingly,  knowingly,  to  do  injustice,  and  I  ask  that  this  appeal  now  granted  in  so 
many  w^ords  in  this  article  shall  he  perfected  as  to  its  details  in  such  way  as  to  permit 
the  bond  to  take  effect  upon  its  approval  by  the  Court  of  Appeals.  I  will  modify  my 
previous  amendment  somewhat,  by  making  the  language  read  thus: 

After  the  word  "commission"  at  the  end  of  line  206,  add  the  words:  "or  approved 
on  review  by  the  Supreme  Court  of  Appeals." 

Mr.  Braxton:  Mr.  President,  it  seems  to  me  that  my  excellent  friend  from  Norfolk 
in  his  zeal  for  his  proposition  has  done  us,  unwittingly,  I  am  sure,  a  great  injustice. 
This  unfortunate  Committee  on  Corporations  seems  to  be  caught  between  the  upper 
and  nether  millstone  of  criticism.  If  we  adopt  an  amendment  our  friends  jump  up 
all  around  us  here  and  say  we  have  no  confidence  in  our  report,  and  if  we  oppose 
an  amendment,  we  are  twitted  about  that.  My  friend  from  Norfolk  v/as  the  one 
who,  the  other  day,  twitted  us  with  having  adopted  no  amendments,  and  he  said — 

Mr.  Thom:  I  should  like  to  suggest  to  my  friend  that  I  have  never  criticised  him 
for  amending  this  report.  I  think  that  every  amendment  he  has  made  has  shown 
at  least  a  mind  tending  toward  repentance.  (Laughter.)  What  I  have  done  is  to 
use  the  necessity  of  amendment  as  an  argument  against  putting  an  article  of  this 
sort  in  a  permanent  form  into  the  Constitution. 

Mr.  Braxton:  I  have  replied,  Mr.  President,  that  there  is  no  article  in  this  Con- 
vention, from  the  preamble  to  the  schedule,  that  has  not  been  amended  again  and 
again  from  the  time  it  was  first  drawn.  I  call  attention  to  the  fact  that  every  amend- 
ment that  has  been  adopted  to  this  report  was  an  amendment  of  form  and  not  of  sub- 
stance, and  I  refer  my  excellent  friend  to  the  report  of  the  Committee  on  Suffrage, 
v.'hich  has  been  amended  again  and  again,  and  on  which  subject  he  has  himself 
changed  his  views  radically  and  materially  since  the  time  he  first  started  in.  I  think 
it  is  correct  and  proper  to  change  your  mind  whenever  reason  demands  it. 

Mr.  President,  whenever  an  amendment  has  been  offered,  the  Committee  on  Cor- 
porations has  carefully  considered  it.  They  have  not  shut  their  eyes  to  argument  or  to 
reason  and  they  have  been  willing  and  anxious  to  adopt  any  suggestion  that  could 
commend  itself  to  their  reason  after  they  had  heard  it.  They  recognize  the  fact 
that  some  men  sometimes  change  their  opinions,  and  that  there  is  another  class  of 
men  who  never  do,  and  they  have  no  hesitancy  in  adopting  suggestions  when  they 
meet  their  approval.  But,  Mr.  President,  we  cannot  say  that  because  we  do  that,  wc 
must  accept  every  suggestion  made  to  us  if  it  does  not  commend  itself  to  us.  It  may 
be  that  we  are  wrong  in  our  judgment,  but  we  must  be  controlled  by  our  own  judg- 
ment. Every  suggestion  that  has  been  made  to  the  committee  has  been  carefully 
considered  by  it  with  the  desire  to  adopt  it  if  they  thought  they  could  possibly  do  so. 

Although  we  may  be  wrong  about  it,  we  are  of  the  opinion  that  the  amendment 
is  not  necessary  to  accomplish  the  purpose  the  gentleman  wants,  and  we  cannot,  at 
this  time  see  the  entire  effect  which  it  might  have,  when  he  uses  the  word  "  review," 
and  when  there  are  two  things  that  may  be  reviev/ed,  how  far  it  mav  confuse  the 
idea.  We  provide  that  where  a  decision  of  the  com.mission  is  entered  fixing  a  rate 
that  that  decision  shall  not  be  suspended  until  a  suspending  bond  is  given  and  has 
been  approved  by  the  commission.  Now,  out  of  abundance  of  caution— it  v,as  not 
in  the  report  before  and,  we  simply  allowed  the  Legislature  to  give  an  appeal  from 
the  decision  of  the  commission  refusing  to  approve  the  bond — out  of  abundance  of 
caution  and  of  generosity  to  the  side  advocated  by  my  friend  from  Norfolk,  we  say 
that  we  ourselves  will  provide  that  there  may  be  an  appeal  from  that  decision  of  the 
commission  refusing  to  approve  the  bond.  Now,  I  will  ask  any  man  here  present  if 
we  give  that  appeal  how  the  court  could  come  to  any  other  conclusion  possible 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


than  that  when  the  appeal  is  taken  and  the  decision  of  the  commission  has  been  reversed, 
that  reversal  shall  have  the  same  effect  as  if  the  same  judgment  was  arrived  at  by 
the  commission  before.  If  what  my  friend  from  Norfolk  says  is  true,  then  the  court 
construing  it  would  have  to  read  out  of  this  article  entirely  the  provision  for  an 
appeal.  The  suspending  bond  v\-e  say  shall  not  have  effect  until  approved  by  the  com- 
m.ission,  and  from  the  action  of  the  commission  refusing  to  approve  it  there  shall  be 
an  appeal  unless  when  the  appeal  is  taken  and  the  decision  is  reversed  that  shall 
have  the  same  effect  as  if  the  commission  had  entered  that  judgment  at  the  start. 
In  the  Code  we  have  this  proA'ision,  in  Section  3490: 

The  court  from  which  any  case  may  have  come  to  the  Court  of  Appeals,  shall  enter 
the  decision  of  the  appellate  court  as  its  own. 

Mr.  Thom:    Read  on  what  comes  after  that. 

Mr.  Braxton:  "And  execution  may  issue  thereon  accordingly." 

If  the  decision  is  one  which  does  not  involve  the  issuance  of  execution,  of  course, 
no  execution  is  issued,  but  when  the  decision  of  the  Supreme  Court  of  Appeals  has 
been  entered  it  is  entered  with  all  the  force  and  effect  as  if  that  decision  had  been  en- 
tered by  the  court  below.  If  it  does  not  have  that  effect  I  ask  you  what  reason,  what 
meaning,  what  effect  can  be  given  by  that  provision  which  says  that  there  may  be 
appeal  from  the  decision  of  the  question. 

Mr.  Thom:  I  should  like  to  know  whether  this  kind  of  order  was  not  in  exist- 
ence at  the  time  that  statute  was  passed  in  the  first  place? 

Mr.  Braxton :    No,  sir. 

Mr.  Thom:  In  the  next  place,  if  that  statute  does  not  confine  the  orders  which 
are  to  become  the  orders  upon  which  an  exectition  issues? 

^It.  Braxton:  I  do  not  think  so.  I  should  like  to  ask  my  friend  this  question. 
If  his  contention  be  true  that  when  the  decision  of  the  commission  refusing  to  appeai 
the  bond  has  been  appealed  from  as  provided  here,  and  the  Court  of  Appeals  has  re- 
versed it  and  says  the  bond  otight  to  have  been  approved,  if  that  does  not  have  the 
effect  of  a  decision  of  the  commission  approving  it,  what  effect  does  it  have? 

Mr.  Thom:  It  has  the  effect  and  power  of  the  jurisdiction  of  the  Court  of  Ap- 
peals in  approving  it. 

Mr.  Braxton:  Well,  if  the  Court  of  Appeals  approving  it  does  not  have  any  effect 
at  all,  would  it  not  amount  to  a  reductio  ad  absurdum,  and  would  not  the  court  have 
to  sa3'  that  in  giving  an  appeal  from  the  commission  on  that  subject,  we  did  a  per- 
fectly vain  and  futile  thing  by  providing  that  you  shall  have  an  appeal,  but  when 
the  appeal  was  taken,  and  the  court  has  reversed  it,  it  shall  not  have  any  effect  what- 
soever.   It  is  mere  brutum  fulmen. 

Mr.  Thom:  And  that  is  the  very  purpose  of  my  offering  this  amendment.  It 
is  to  prevent  a  reductio  ad  absurdum  in  the  work  of  this  committee  in  not  covering 
the  case. 

Mr.  Braxton:  I  will  not  detain  the  Convention  longer  than  merely  to  say  that 
after  as  careful  a  consideration  as  we  can  give  it.  we  have  not  the  slightest  doubt  in 
our  minds  that  the  language  as  it  stands  now  will  affect  all  the  purposes  desired  by 
my  friend,  and  that  if  his  amendment  is  adopted  it  may  accomplish  the  ptirpose  he 
wants  and  it  may  mean  something  else. 

Mr.  Thom:  ]\Ir.  President.  I  desire  to  ask  the  chairman  of  the  committee  to  sug- 
gest what  other  effect  than  that  which  I  am  trying  to  accomplish,  the  words  "or  ap- 
proved, on  review,  by  the  Supreme  Court  of  Appeals,"  could  have? 

'Sir.  Braxton:  I  can  simply  say,  Mr.  President,  that  there  may  be  two  appeals. 
There  may  be  an  appeal  and  a  review  by  the  Court  of  Appeals  from  the  decision  fixing 
rates,  and  there  may  be  a  subsidiary  appeal  from  the  decision  refusing  to  approve  the 
bond,  and  which  review  you  refer  to  may  be  a  question  of  dotibt.  We  have  not  been 
able  to  study  the  matter  since  the  gentleman  offered  it  to  satisfy  our  minds  that  that 


2T98  DEBATES  OF  THE  CONSTITUTIOiTAL  CONVEXTION"  OF  VIRGUvTIA. 

ambiguity  does  not  occur.  It  seems  to  us  it  is  possible  it  may  occur.  We  are  merely 
of  opinion  that  the  present  language  is  beyond  all  question  sufficient  to  accomplish 
what  the  gentleman  wants,  and  we  are  not  clearly  of  opinion  that  the  language  he 
suggests  may  not  accomplish  something  else  which  we  do  not  want.  Therefore  we 
are  compelled,  much  as  we  regret  the  necessity  of  differing  from  our  friend,  to  say 
that  we  cannot  accept  his  amendment,  and  we  think  it  ought  not  to  be  adopted. 

Mr.  Thom:  I  wish  to  ask  the  gentleman  on  which  of  those  two  reviews  he  al- 
ludes to  it  is  possible  for  the  question  of  the  approval  of  the  bonds  to  arise,  and  if 
it  is  possible  for  it  to  arise  except  on  one  of  these  appeals? 

Mr.  Braxton:  An  appeal  is  an  appeal  from  the  decision  of  the  court  fixing  the 
cliarges.  It  is  not  necessary  to  give  a  suspending  bond  when  an  appeal  is  taken. 
When  the  commission  fixing  its  charges,  the  railroad  can  appeal  from  it,  without  giv- 
ing a  suspending  bond,  if  it  chooses.  The  only  effect  is  if  it  does  not  give  a  suspend- 
ing bond  it  must  abide  by  the  decision  of  the  commission  pending  the  appeal. 

The  President:    The  question  is  on  agreeing  to  the  amendment. 

The  question  having  been  taken,  the  result  was  announced — ayes,  32;  noes,  24. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  Mr.  President,  in  line  217  I  ask  that  the  words  "such  action  be 
not  reversed"  be  stricken  out,  and  in  lieu  thereof  there  be  inserted  the  words  "such 
charges  made  by  the  company  pending  the  appeal  be  not  sustained  on  such  appeal." 

The  amendment  was  agreed  to. 

Sub-section  E  was  adopted,  as  amended. 

Sub-sections  F,  G,  H,  I,  and  K  were  read,  and  after  being  slightly  amended  were 
adopted. 

,  Sub-section  1  was  then  read. 

Mr.  Wise:  I  move  to  amend  sub-section  L  by  inserting  in  line  320  the  w^ords  "a, 
b,  c." 

Mr.  Chairman,  I  wish  to  say  that  I  have  submitted  this  question  to  the  chairman 
of  the  committee  and  he  will  speak  for  himself.  If  I  could  have  my  will  in  this 
matter  I  would  give  to  the  Legislature  of  Virginia  as  to  the  year  1905  complete  control 
of  this  matter.  I  do  not  propose  to  discuss  that  proposition  and  state  why  I  would  do 
so.  I  do  not  wish  to  take  up  the  time  of  the  Convention,  and  I  am  well  aware  from 
the  action  of  this  body,  both  in  Commitee  of  the  Whole  and  in  Convention,  that  such 
a  proposition  would  not  meet  with  any  favor;  but  it  does  seem  to  me  that  if  you  are 
going  to  give  to  the  Legislature  the  right  to  amend  sub-sections  D,  E,  F,  G,  H,  and  I 
upon  the  recommendation  of  the  commission,  there  cannot  possibly  be  any  reason  for 
making  that  applicable  to  the  other  sub-sections  in  Section  4.  If  you  are  satisfied 
that  you  have  reached  the  proper  solution  of  this  problem,  if  you  are  satisfied  you 
have  made  a  perfect  article  on  this  subject  of  transportation,  about  which  the  ablest 
men  in  this  and  other  countries  have  differed,  then  of  course  you  will  refuse  to  have 
any  change  made  in  your  work. 

The  members  of  the  Convention  will  understand  that  I  have  not  in  this  amend- 
ment proposed  that  the  Legislature,  upon  its  own  motion  in  1905,  may  change  any 
provision  in  these  sub-sections.  I  simply  provide  that  if  experience  shall  demonstrate 
the  necessity  for  or  the  wisdom  of  a  change  in  the  future,  it  may  be  done  by  the 
Legislature  on  the  recommendation  of  the  commission.  Surely  it  seems  to  me,  the 
gentlemen  of  the  committee  ought  not  to  refuse  such  an  amendment  as  this.  Surely 
they  will  not  be  unwilling  to  trust  the  commission  which  they  have  clothed  with  such 
great  legislative  and  judicial  powers. 

It  will  be  observed,  Mr.  President,  that  my  amendment  simply  provides  that  if  at 
any  time  after  1905  there  shall  be  the  concurrence  of  the  will  of  the  commission  which 
you  have  created  and  of  the  Legislature,  who  are  the  representatives  of  the  people 
of  this  Commonwealth,  there  may  be  changes  made  in  any  of  the  sub-sections  of  this 
Section  4. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2799 

I  say  I  have  submitted  the  amendment  to  the  judgment  of  the  ctiairman  of  the 
committee,  and  I  hope  it  will  be  his  pleasure  to  accept  it. 

Mr.  Braxton:  Mr.  President,  the  Committee  on  Corporations,  after  considering 
this  matter  do  not  desire  to  object  to  the  amendment.  On  the  contrary,  we  are  rather 
inclined  to  approve  it,  and  I  was  about  to  offer  the  same  amendment  that  my  friend 
offered. 

The  situation  is  simply  this:  It  is  absurd  for  anybody  to  say  that  anything  in 
this  Constitution,  from  beginning  to  end,  is  so  perfect  that  it  cannot  possibly  be  wrong. 
Anything  on  earth  that  we  can  write  may  by  possibility  be  wrong.  The  choice  of  dan- 
gers we  have  to  take  is  this:  If  we  make  these  three  provisions  so  that  they  cannot 
be  amended  except  by  the  regular  ordinary  method  of  amendment,  there  is  a  possi- 
bility, in  spite  of  all  the  care  we  have  taken,  that  the  court  may  find  some  defect 
in  it  that  will  nullify  the  whole.  On  the  other  hand,  if  we  adopt  the  amendment  of 
the  gentleman  from  Richmond,  the  only  way  we  can  be  hurt  would  be  when  the  com- 
mission itself  and  the  Legislature  and  the  Governor  were  all  three  corruptly  banded 
together  to  go  to  work  and  destroy  this  safeguard.  The  chances  of  its  being  injured 
through  the  courts  is  much  greater  than  the  chance  of  it  being  injured  otherwise. 

Mr.  Quarles:  Sub-sections  A,  B,  and  C  confer  the  powers  upon  the  commission,  I 
believe?  Then  by  including  sub-sections  A,  B,  and  C  in  the  section,  as  proposed  by 
the  gentleman  from  Richmond,  that  will  put  it  in  the  control  of  the  Legislature  to 
strip  the  commission  of  its  powers. 

Mr.  Braxton:    No,  sir. 

Mr.  Wise:  If  the  gentleman  from  Augusta  (Mr.  Quarles)  will  permit  me,  it  is 
upon  the  recommendation  of  the  commission.  There  must  be,  as  I  say,  the  concur- 
rence of  the  will  and  the  judgment  and  the  General  Assembly. 

Mr.  Braxton:  I  will  state  to  the  gentleman  from  Augusta  (Mr.  Quarles)  just  along 
the  line  of  the  explanation  of  the  gentleman  from  Richmond  (Mr.  Wise)  that  before 
any  amendment  can  be  made  under  this,  two  of  the  three  commissioners  and  two- 
thirds  of  the  Legislature  will  have  to  concur.  Now,  while  it  is  true  that  it  is  possible 
that  all  of  them  might  unite  together  to  deliberately  emasculate  this  commission,  we 
think  the  possibility  of  such  a  thing  is  very  remote,  and  nothing  like  so  much  a  proba- 
bility as  there  is  of  the  court  finding  some  flaw — I  do  not  mean  improperly — but  there 
may  be  some  defect  which,  in  spite  of  our  vigilance,  has  slipped  into  this,  which  the 
court  would  be  obliged  to  decide  against  us,  and  if  it  did,  the  effect  of  the  amendment 
of  the  gentleman  from  Richmond  (Mr.  Wise)  would  be  to  give  us  this  quick  and  speedy 
method  of  remedying  such  a  defect  in  the  fundamental  essentials  necessary  for  the 
existence  of  the  commission. 

We  think,  therefore,  upon  reflection,  that  it  would  be  wisest  to  adopt  the  amend- 
ment offered  by  the  gentleman  from  Richmond. 

Mr.  Robertson:  Mr.  President,  I  do  not  want  to  argue  this  matter.  I  simply 
desire  to  say  that  my  friend  from  Augusta,  the  chairman  of  this  committee,  seems  to 
think  I  have  unnecessarily  prodded  him  with  his  unwillingness  to  amend  this  section. 
I  want  to  say  from  the  bottom  of  my  heart,  that  I  admire  the  courage  and  sincerity  of 
the  gentleman  from  Augusta  which  has  led  him  to  go  as  far  as  he  has  done  in  agree- 
ing to  this  amendment. 

What  I  have  said  with  reference  to  amendments  was  not  in  criticism  at  all  of  the 
attitude  of  that  committee  or  of  the  chairman  of  it.  All  that  I  ever  meant  to  say 
was  that  the  fact  that  they  themselves  have  recognized  the  necessity  of  amending  until 
they  have  increased  it  from  twenty-six  pages  to  thirty-one  pages  already,  shows  that 
the  argument  that  some  of  us  made  here  with  reference  to  making  this  a  permanent 
part  of  the  Constitution  did  have  some  foundation  in  common  sense,  though  the 
charge  has  been  made  upon  this  floor  that  it  was  absolutely  lacking  in  common  sense. 

I,  for  one,  thank  the  gentleman  for  even  going  as  far  as  he  has  gone. 

The  amendment  w^as  agreed  to. 


2800  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

The  President:  The  question  recurs  on  the  adoption  of  sub-section  L  as  amended. 
Mr.  Hamilton:  Mr.  President,  I  move  that  the  words  "upon  the  recommendation 
of  the  said  commission"  in  lines  318  and  319  be  stricken  out,  and  that  the  section  be 
so  amended,  so  that  after  January,  1905,  this  article  or  this  section  may  be  amended 
by  the  concurrent  action  of  the  General  Assembly  and  the  Governor.  It  will  then 
have  been  in  force  for  four  or  five  years,  and  as  I  understood  the  argument  of  the 
chairman  of  the  committee  here  in  opening  this  subject  in  Committee  of  the  Whole, 
it  was  that  there  could  be  no  harm  if  affirmative  action  was  to  be  obtained  by  corpora- 
tions through  the  Legislature.  It  was  only  that  the  corporations  could  block  action, 
that  they  would  have  negative  power,  but  would  not  have  affirmative  power  enough 
to  do  anything.  I  think  it  is  inconsistent  with  practically  all  our  ideas  of  government 
that  a  commission  of  three  people  should  be  made  to  consent  to  any  change  in  their 
powers.  They,  of  course,  are  not  going  to  make  recommendations  which  will  reduce 
their  powers  in  any  way  or  which  will  materially  make  them  less  important  people 
than  they  otherwise  are.  I  think  the  words  "upon  the  recommendations  of  the  said 
commission  should  be  stricken  out  and  the  section  so  amended. 

Mr.  Braxton:  Mr.  President,  I  most  sincerely  trust  that  the  Convention  will  not 
adopt  the  amendment  offered  by  the  gentleman  from  Petersburg  (Mr.  Hamilton).  I 
am  sure  it  would  be  a  grave  mistake  to  do  so.  It  would  take  this  commission,  which 
w^e  have  established  with  so  much  difficulty  and  labor  and  have  attempted  to  make 
as  permanent  an  institution  in  this  States  as  the  courts,  a  large,  important  branch  of 
the  government,  and  put  it  in  the  hands  of  any  Legislature  that  comes  along  to  abso- 
lutely destroy  it  and  wipe  it  off  the  face  of  the  earth.  Some  misapprehension  has 
.heretofore  existed,  and  I  have  tried  in  a  former  remark  that  I  submitted  to  this 
Convention  to  explain  it,  but  lest  I  have  failed  to  do  so  to  the  satisfaction  of  some 
members,  and  as  this  matter  is  so  important,  I  will  repeat  it. 

The  right  of  the  Legislature  to  make  any  rules,  regulations  or  requirements  for 
any  railroad  company,  outside  of  fixing  rates,  is  left  unimpaired,  in  full  force  and 
virtue,  as  it  is  to-day — absolutely  so.  It  does  not  require  the  concurrence  of  the 
commission.  The  only  thing  that  requires  the  concurrence  of  the  commission  is  to 
amend  this  Constitution.  Now,  there  is  a  way  provided  for  amending  the  Constitution 
which  takes  several  years  for  its  accomplishment.  There  must  be  a  vote  by  one  Legis- 
lature, ratified  by  a  vote  of  a  subsequent  Legislature,  and  further  ratified  by  a  vote 
of  the  people.  For  reasons  that  were  already  known  and  that  have  been  repeated 
again  and  again,  it  was  thought  best  to  provide  with  reference  to  this  fourth  section, 
which  necessarily  goes  greatly  into  detail,  a  shorter  method  of  amending  the  Constitu- 
tion, but  to  bear  in  mind  that  after  all  it  was  an  amendment  of  the  Constitution,  and 
not  the  enactment  of  an  ordinary  statute;  and  in  order  to  enable  us  to  do  that  the 
more  readily  so  that  it  would  not  take  two  or  three  or  four  years  to  accomplish  it, 
the  second  vote  of  the  Legislature  and  the  vote  of  the  people  was  substituted  by 
the  concurrence  of  the  commission  itself. 

Instead  of  restricting  the  power  of  the  Legislature,  it  is  enhancing  the  Legisla- 
ture. It  is  enabling  them  to  amend  the  Constitution  by  a  method  that  they  did  not 
have  before.  No  matter  if  the  commission  is  unanimous  in  its  recommendation,  it 
cannot  amend  it.  It  requires  the  concurrence  of  the  Legislature  and  the  commission, 
instead  of  the  concurrence  of  two  Legislatures  and  the  people. 

I  submit,  gentlemen  (and  I  do  this  with  the  utmost  earnestness,  because  I  tell 
you  gentlemen  who  are  the  real  friends  of  this  measure  that  small  and  apparently 
unimportant  amendments  of  this  sort  will  slip  in  here  that  will  absolutely  destroy  all 
the  work  you  have  done),  that  if  you  adopt  this  amendment,  all  that  is  necessary  is 
to  capture  one  Legislature,  and  all  the  work  you  have  done  will  be  destroyed 
absolutely.  You  are  giving  to  the  Legislature,  by  the  enactment  of  an  ordinary  statute, 
without  any  safeguard  whatsoever,  the  power  to  amend  the  Constitution. 

I  repeat  that  this  is  not  a  restriction  upon  the  power  of  the  Legislature,  but  is 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2801 

an  enlargement  of  its  power;  that  but  for  this  section  they  could  not  amend  this 
thing  at  all;  and  we  have  provided  here  that  if  we  find  this  section  is  defective  in 
any  particular,  so  that  our  work  does  not  accomplish  what  we  want,  if  the  Supreme 
Court  of  the  United  States  or  our  own  Supreme  Court  can  find  some  defect  in  its 
constitutionality,  we  will  not  have  to  wait  four  years  to  amend  it,  but  can  amend  it 
by  this  method;  but  if  you  leave  it  absolutely  to  the  Legislature  to  amend  it,  you 
have  surrendered  yourself  into  the  hands  of  the  very  body  which  you  wish  to  make 
this  commission  independent  of,  so  far  as  its  existence  is  concerned,  and  the  Legis- 
lature should  not  have  the  power  of  abolishing  or  destroying  this  commission  any 
more  than  it  should  have  the  power  of  abolishing  the  Supreme  Court.  They  are  left 
to-day  the  power  to  prescribe  rules  and  regulations  for  it  so  long  as  those  rules  and 
regulations  do  not  go  to  the  extent  of  abolishing  the  institution  or  destroying  its 
efiiciency;  and  I  call  now  upon  all  the  friends  of  this  measure  who  are  really  the 
friends  of  it,  to  rally  to  its  support  at  this  time,  because  if  this  amendment  is  adopted 
the  work  you  have  done  here  is  largely  of  the  Convention  not  to  adopt  this  amendment, 
but  to  vote  it  down. 

If  the  proposed  change  is  one  that  will  make  the  body  more  efficient,  you  can 
count  upon  the  commission  endorsing  it.  If  it  is  one  that  unduly  aggrandizes  the 
power  of  the  commission,  you  can  count  upon  the  Legislature  refusing  to  adopt  it; 
and  it  is  only  when  it  is  a  meritorious  one  and  one  which  strengthens  rather  than 
weakens  this  institution,  that  you  can  get  the  concurrence  of  both  these  bodies  for  it, 

I  do  trust,  Mr.  President,  that  it  may  be  the  pleasure  of  the  Convention  to  vote 
down  the  amendment. 

Mr,  Hamilton:  Mr.  President  and  gentlemen,  I  shall  not  detain  you  long.  To  my 
mind,  it  is  not  right  to  give  three  men  as  commissioners — I  do  not  care  what  kind 
of  commissioners  you  call  them — greater  pov\^er  than  you  give  the  Governor  of  Vir- 
ginia. In  matters  of  legislation  the  Legislature  of  Virginia  can  overrule  a  veto  of 
the  Governor  by  a  two-thirds  vote.  The  Legislature  and  the  Governor  both  together, 
by  unanimous  vote  of  the  Legislature,  cannot  make  any  change  in  section  4  of  this 
article  unless  two-thirds  of  the  commissioners  approve  the  action  of  the  Governor  and 
the  General  Assembly. 

Now,  gentlemen,  I  do  not  believe  any  railroad  commissioner  or  corporation  com- 
missioners are  going  to  be  any  higher  or  any  better  in  the  long  run  than  the  representa- 
tives of  the  people  and  the  Governor  of  the  Commonwealth  combined.  It  is  folly  to 
think  they  are  ever  going  to  recommend  anything  which  is  not  an  increase  and  an 
aggregation  of  their  power.  It  is  a  most  wonderful  power  to  give  to  people.  I  be- 
lieve more  power  is  given  to  them  with  respect  to  this  matter  in  the  Constitution 
than  exists  in  any  body  in  the  world;  more  than  exists  in  any  portion  of  the  govern- 
ment. The  General  Assembly,  representing  the  people,  may  by  unanimous  vote,  the 
Governor  may  with  heartiness  approve  that,  and  yet  they  cannot  make  any  kind  of 
an  amendment  even  in  the  matter  of  detail  with  respect  to  the  procedure  under  this 
thing  unless  it  is  concurred  in  by  these  commissioners. 

No  body  of  men,  no  tribunal,  sliould  ever  be  established  with  absolute  self  per- 
petuating powers,  practically  with  the  authority  to  say  there  is  no  power  known  to 
the  State  of  Virginia,  except  a  constitutional  amendment  or  a  Constitutional  Con- 
vention, that  can  make  us  agree  to  a  change  in  minute  detail  in  this  matter,  except 
with  respect  to  certain  things  here  not  connected  with  rates  or  charges,  for  instance, 
I  say,  if  the  Governor  and  the  General  Assembly  concur  by  any  majority  of  the  Gen- 
eral Assembly  that  you  choose  to  name,  that  is  sufficient  to  make  the  changes.  I  do 
not  claim  it  is  sufficient  to  destroy  the  commission.  That  is  not  in  Section  4.  That  is 
is  provided  for  in  prior  sections;  but  Section  4  merely  states  the  powers  of  this  com- 
mission with  respect  to  rates,  and  deals  with  all  this  matter  of  repeals,  method  of  pro- 
cedure, and  so  on.  It  does  not  give  the  Legislature  and  the  Governor  the  power  to 
destroy  this  part  of  the  Constitution,  but  merely  the  power  to  vary  that  portion  of  it 
embraced  in  Section  7. 


2802  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 

I  think  the  pov/ers  are  too  great.  You  seem  to  be  more  willing  to  trust  this  com- 
mission than  you  are  your  Governor  and  your  Legislature  combined. 

Mr.  Flood:  It  is  not  a  fact  that  the  effect  of  this  provision  now  in  this  measure 
would  be  to  give  the  three  gentlemen  who  are  to  constitute  this  commission  the  power 
of  amending  this  Constitution  with  the  concurrence  of  one  Legislature,  or,  in  other 
words,  to  give  to  these  three  gentlemen  the  power  that,  in  order  to  amend  the  Con- 
stitution, would  have  to  be  exercised  by  another  Legislature,  and  a  popular  vote  of 
the  people? 

Mr.  Hamilton:    That  is  the  way  it  seems  to  me. 

Mr.  Meredith:    You  gentlemen  are  objecting  to  this  provision.    Will  you  vote  for 
a  proposition  that  it  shall  not  be  changed. 
Mr.  Hamilton:    I  v^^ill  not  vote  for  it. 
Mr.  Meredith:    I  thought  not. 

Mr.  Hamilton:  I  think  that  is  not  a  fair  question  on  the  point.  You  all  admit, 
everybody  admits,  who  sees  what  goes  on  here,  that  you  cannot  make  this  thing  so 
perfect  that  you  can  afford  not  to  provide  for  some  sort  of  a  change;  and  yet  you 
say  the  change  which  shall  take  place  shall  be  absolutely  dependent  upon  two  of  the 
men  in  this  commission.  It  is  not  even  the  full  commission,  but  two  of  the  men  of 
this  commission  would  have  more  power  than  the  Legislature  of  Virginia  and  the  Gov- 
ernor combined,  and  would  have  the  power  to  change  this  Constitution  in  a  way  which 
it  would  take  two  General  Assemblies,  with  their  action  approved  by  the  Governor, 
unless  the  vote  was  two  thirds,  plus  a  vote  of  the  people,  to  do.  It  seems  to  me  not 
right.    I  submit  the  matter  with  great  deference  to  you  gentlemen. 

Mr.  Meredith:  Mr.  President,  it  looks  to  me  as  if  we  were  going  over  the  same 
ground  w^hich  we  discussed  in  Committee  of  the  ¥7hole,  but  as  it  has  been  brought 
up  to-day,  you  see  that  by  the  motion  made  by  the  gentleman  from  Richmond  (Mr. 
Wise),  the  power  to  change  this  has  been  very  much  enlarged,  and  while  the  gentle- 
man from  Petersburg  (Mr.  Hamilton)  is  correct  in  his  statement  that  to  allow  the 
I^egislature  to  change  it  does  not  abolish  the  commission,  he  must  see  that  while  the 
commission  would  remain,  it  would  remain  simply  a  name.  It  would  have  no  consti- 
tutional protection.  Nothing  except  its  name  and  its  existence  would  be  protected  by 
the  Constitution.  All  that  would  be  left  would  be  such  powers  as  the  Legislature 
might  see  fit  to  give  it.  If  it  is  worth  any  constitutional  provision,  it  is  worth  con- 
stitutional powers.  There  is  no  use  putting  this  in  here  if  you  are  going  to  make  it 
simply  the  creature  of  the  Legislature,  and  when  the  gentleman  says  it  gives  a  power 
here  that  it  does  not  give  as  to  any  other  provision,  he  is  not  prepared  to  say  he 
will  allow  it  simply  to  be  changed  like  any  other  provision.  He  is  not  prepared  to 
say  he  wants  this  thing  to  be  submitted  to  two  votes  of  the  people. 

Therefore,  instead  of  limiting  the  power,  we  are  giving  further  power  to  the 
Legislature  as  to  this,  than  it  has  as  to  any  other  constitutional  provision.  The  gentle- 
man who  has  been  the  earnest  advocate  of  the  people  in  his  speech  yesterday  cen- 
suring us  for  what  we  have  done  here,  and  worked  so  hard,  sometimes  in  his  absence, 
will  find  that  under  this  provision  we  are  giving  the  people,  through  the  Legislature, 
power  they  do  not  have  as  to  anything  else.  So  instead  of  censuring  us  about  this 
Diatter,  he  should  approve  of  it. 

There  is  no  power  in  this  commission  to  change  anything.  They  cannot  give  one 
bit  of  power,  nor  take  any  away.  In  order  to  change  it  or  take  it  away,  it  must  be 
with  their  consent,  and  with  the  consent  of  the  Legislature.  Therefore,  I  say  instead 
of  giving  them  the  power,  we  are  giving  it  to  the  Legislature,  because  they  cannot 
move  without  it. 

It  has  been  said  on  this  floor  that  gentlemen  want  to  take  the  railroads  out  of 
politics.  My  friend  from  Petersburg  (Mr.  Hamilton)  has  been  especially  desirous 
that  the  railroads  should  be  gotten  out  of  politics,  and  that  ten  years  should  be  given 
for  the  operation  of  the  taxation  report.    Now,  when  it  comes  to  the  question  whether 


DEBATES  OF  THE  COis^STITUTIONAL  COXVENTIOX  OF  VIRGINIA.  2803 

we  shall  take  them  out  of  politics,  it  is  proposed  here  that  this  thing  shall  be  left 
for  the  Legislature  to  have  a  fight  over  it  every  time  the  railroads  get  a  chance  at  it. 
It  is  all  very  well  to  take  the  railroads  out  of  politics  when  you  give  them  protection 
for  ten  years,  but  when  you  want  to  protect  the  people,  of  whom  my  friend  from  Appo- 
mattox claims  to  be  the  champion,  we  find  it  is  to  be  given  them  every  year,  and  that 
every  time  the  railroads  can  effect  the  Legislature  they  will  come  and  knock  at  the 
door  and  demand  that  some  restriction  be  put  upon  this  commission,  and  the  people's 
hands  are  tied;  in  other  words,  that  this  thing  that  we  have  deemed  proper  to  put 
into  the  Constitution,  and  proper  to  be  given  constitutional  powers,  shall  be  changed 
at  the  will  of  the  Legislature. 

I  respectfully  submit  the  danger  is  immense,  so  far  as  this  provision  is  con- 
cerned, and  that  it  virtually  destroys  it  by  allowing  the  Legislature  to  have  any 
chance  by  itself  to  pass  upon  a  matter  of  this  kind.  The  object  of  the  constitutional 
provision  was  to  put  it  beyond  the  power  of  the  Legislature  to  change  this  thing  at  its 
svv^eet  will,  but  there  should  be  some  other  safeguard,  so-  that  the  people  may  be  pro- 
tected as  to  what  they  deem  necessary  in  having  this  corporation  commission. 

Mr.  Flood:  Mr.  President,  the  proposition  I  submit  is  to  give  to  two  gentlemen 
upon  the  commission  the  power  that  is  now  exercised  by  a  majority  of  140  members 
of  the  General  Assembly,  the  imprimatur  of  the  Governor  and  the  vote  of  the  people 
amending  the  Constitution.  It  will  give  to  those  two  gentlemen — and  I  challenge  any- 
body to  contradict  it — the  power  that  the  Constitution  now  requires  should  be  exercised 
by  one  General  Assembly  of  this  Commonwealth,  backed  up  by  a  vote  of  the  people  of 
the  CommonweaR'h ;  now,  to  amend  the  Constitution  an  act  must  pass  two  General 
Assemblies  and  be  approved  by  the  people  under  this  provision  if  it  receives  the  sanc- 
tion of  this  commission,  it  need  only  pass  one  General  Assembly. 

I  do  not  agree  with  the  gentleman  from  Richmond  (Mr.  Meredith)  that  this  would 
affect  in  the  slightest  degree  the  effectiveness  of  this  measure.  I  do  not  believe  the 
Legislature  is  going  to  be  so  careless  of  the  rights  of  the  people  that  they  will  put 
changes  in  here  after  1905  that  will  affect  the  efficiency  of  this  measure;  but  I  do  think 
it  is  a  dangerous  power  to  invest  in  two  men,  the  powers  that  always  in  this  Com- 
monwealth, have  been  exercised  by  the  concurrence  of  two  Legislatures  and  a  vote 
of  the  people. 

Not  only  that,  Mr.  President,  but  my  friend  from  Richmond  seems  to  fear  that 
the  Legislature  will  cripple  this  measure.  To  do  this  it  would  have  to  be  derelict  in  its 
duty  to  the  people.  I  do  not  believe  the  General  Assembly  will  ever  betray  its  trust. 
But,  in  order  to  do  so,  you  must  have  two-thirds  of  the  Legislature  or  the  Governor 
must  be  in  collusion  with  the  General  Assembly.  It  is  not  to  be  presumed  that  the 
Governor  who  appoints  this  commission  is  going  into  collusion  with  the  Legislature  to 
destroy  the  powers  of  the  commission;  the  Governor  will  understand  too  well  the  power 
this  commission  will  give  him  to  desire  to  lessen  those  powers.  If  the  Legislature 
undertakes  to  destroy  the  powers  of  the  commission  by  its  enactment,  the  Governor 
can  veto  the  measures  intended  to  accomplish  this  result  and  to  carry  those  measures 
over  his  veto,  a  two-thirds  vote  is  necessary.  So  I  say  it  is  safe  to  allow  the  Legisla- 
ture to  change  the  powers  here  conferred — far  safer,  sir,  than  forgetting  the  teachings 
and  principles  of  Democracy  to  allow  these  two  men  to  exercise  powers  that  have  never 
before  in  this  Commonwealth  been  exercised  except  by  the  approval  of  the  vote  of  the 
people  of  the  State. 

I  think  this  is  one  of  the  most  dangerous  suggestions  I  have  heard  during  the  pro- 
ceedings of  the  Convention.  Being  for  this  report,  I  am  not  willing  to  see  incorporated 
in  it  a  provision  that  will  drive  votes  from  it.  I  am  not  willing  to  see  Incorporated  in 
it  a  report  that  will  perpetuate  its  provisions,  whether  they  are  determined  to  be  wise 
or  not,  unless  they  meet  with  the  concurrence  of  two  men  whose  powers  may  be  less- 
ened by  that  concurrence. 

I  think  it  is  unwise  to  give  this  judicial  tribunal,  the  highest  powers  of  legislation 


2804  DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OE  VIRGINIA. 


against  this  provision  of  the  report  and  for  the  amendment  offered  by  my  distinguished 
friend  from  Petersburg. 

Mr.  Braxton:  Mr.  President,  all  of  the  argument  that  has  been  used  by  the  gentle- 
man who  has  just  preceded  me  (Mr.  Flood)  and  the  gentleman  who  offered  this  amend- 
ment, is  based  upon  the  idea  that  we  are  depriving  the  Legislature  or  the  people  of 
some  power  which  they  have  heretofore  had. 

Mr.  Flood:  I  beg  the  gentleman's  pardon.  My  argument  is  based  upon  the  idea 
that  we  are  depriving  the  Legislature  or  the  people  of  some  power  which  they  have 
heretofore  had. 

Mr.  Flood:  I  beg  the  gentleman's  pardon.  My  argument  is  based  upon  the  idea 
not  that  you  are  depriving  the  Legislature  of  the  power,  but  you  are  vesting  power  in 
two  members  of  the  commission. 

Mr.  Braxton:  I  will  try  and  answer  that  question.  I  submit  the  Legislature  never 
has  had  power  to  amend  the  Constitution;  that  this  sub-section  L  is  a  section  which 
annuls  the  powers  of  the  Legislature  and  because  we  want  to  enlarge  it,  some  of  our 
friends  say  if  we  do  not  absolutely  surrender  to  it,  we  are  curtailing  their  power. 

In  this  provision  Mr.  Chairman,  we  do  not  vest  these  people  with  any  power  over 
the  Legislature,  as  the  powers  of  the  Legislature  exists  to-day.  We  do  not  enable  them 
to  amend  this  Constitution  one  iota.  If  the  amendment  offered  by  the  gentleman  from 
Petersburg  is  adopted,  the  Legislature,  without  any  check  whatever  upon  them,  have 
the  right  to  amend  this  Constitution.  We  say  that  is  unwise,  that  it  is  dangerous,  that 
if  this  measure  is  deserving  of  being  placed  in  the  Constitution,  it  is  deserving  of  hav- 
ing some  more  stability  given  to  it  than  an  ordinary  statute. 

Mr.  President,  in  this  provision  we  make  the  commission  paramount  over  the 
Legislature  in  the  matter  of  fixing  rates  and  changes  and  yet  you  are  going  to  turn 
around  and  say  that  the  Legislature,  from  whom  that  power  has  been  taken,  because 
they  were  incapable,  in  our  opinion,  by  reason  of  their  organization,  to  execute  it,  shall 
have  the  unrestricted  power  of  their  own  will  to  resume  it,  without  any  check  upon 
them  whatsoever. 

What  power  have  these  men,  except  a  check  upon  the  Legislature,  in  lieu  of 
another  check,  to-wit,  the  second  Legislature  and  the  vote  of  the  people?  We  are 
enlarging  their  powers  instead  of  curtailing  them.  If  they  seek  to  agrandize  them- 
selves, they  cannot  move  an  inch  without  the  concurrence  of  the  Legislature,  and  it  is 
only  when  the  Legislature  seeks  to  weaken  them  and  to  destroy  the  work  that  we  have 
done  that  we  give  them  a  veto  power  and  enable  them  to  say  "  If  it  be  true  that  our 
powers  should  be  taken  from  us,  then  let  it  be  done  by  the  vote  of  the  people,"  like  any 
other  amendment  of  the  Constitution  can  be  adopted.  Why  put  this  in  the  Constitu- 
tion if  it  is  to  have  no  more  stability  than  a  statute? 

I  will  tell  the  Convention  this:  I  do  not  think  the  Legislature  will  ever  abolish 
this  commission,  but  that  the  Legislature,  composed  of  gentlemen  frequently  who  have 
never  been  in  public  life  before,  who  are  unfamiliar  with  the  workings  of  this  body, 
many  of  whom  are  not  lawyers,  in  a  short  session  of  three  months,  may  be  induced 
with  the  best  motives  to  vote  for  an  amendment  something  like  this  amendment  offered 
now,  which  apparently  may  strike  them  as  an  unimportant  one,  but  which  will  have  the 
effect  of  absolutely  undoing  all  we  have  done  to-day. 

If  such  a  thing  should  be  offered,  the  commission  would  be  there  to  prevent  it 
being  done  except  by  the  regular  method  of  amendment.  We  are  extending  the  powers 
of  amendment,  where  amendment  is  desirable,  but  we  are  making  it  impossible  to  de- 
stroy this  work  where  the  amendment  is  not  desirable. 

Mr.  President,  if  there  be  a  friend  of  this  measure  here,  I  appeal  to  him  to  vote 
this  proposition  down,  because  we  might  as  well  not  put  this  article  in  the  Constitu- 
tion, if  we  are  going  to  make  it  amendable  exactly  like  a  statute,  and  are  going  to  sur- 
render to  the  Legislature  the  powers  which  we  by  our  very  act  here  have  taken  from 
the  Legislature  and  vested  in  this  body.    I  trust,  therefore,  most  earnestly,  that  this 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  2805 

dangerous  and  destructive  measure  will  be  voted  down;  and  I  give  warning  now  to 
those  gentleD_ien  who  vote  for  this  measure,  if  it  has  the  effect  of  destroying  the  work 
we  have  done,  they  are  doing  it  with  their  eyes  open,  because  I  tell  you  we  are  going 
right  in  the  teeth  of  what  we  have  tried  to  avoid.  We  have  tried  to  give  this  com- 
mission the  facility  of  a  Constitutional  enactment.  We  have  tried  to  make  it  a  per- 
manent institution  in  the  State.  We  have  tried  to  make  it  paramount  on  the  question 
of  fixing  rates;  and  if  this  amendment  is  adopted,  we  will  turn  around  and  surrender 
the  whole  thing  and  put  it  down  on  the  par  of  an  ordinary  statute,  which  by  the  inser- 
tion of  small  and  apparently  harmless  amendments  can  be  killed  by  pin  pricks  year 
after  year  by  the  Legislature,  and  the  very  men  who  vote  for  the  amendments  will  not 
appreciate  the  damage  that  is  to  be  done. 

At  this  point  Mr.  Ayers  took  the  chair  as  presiding  officer. 

The  Presiding  Officer:  The  question  is  on  the  amendment  of  the  gentleman  from 
Petersburg  (Mr.  Hamilton). 

The  amendment  was  rejected — ayes  10,  noes  14. 

Mr.  William  A.  Anderson:  Mr.  President,  I  desire  to  offer  the  following  motion, 
that  I  think  ought  to  be  considered  before  the  amendment  proposed  by  the  gentleman 
from  Richmond,  that  has  not  yet  been  acted  upon.  I  offer  the  following  amendment, 
which  is  not  inconsistent  with  that  at  all: 

After  the  word  "  may,"  in  line  819  of  sub-section  L  of  section  4,  page  20,  insert  the 
following  words:  "Or  without  such  recommendation  by  a  two-thirds  vote  of  both 
houses  of  the  General  Assembly." 

Mr.  President,  the  effect  of  that  would  be  to  permit  the  General  Assembly,  even 
without  the  concurrence  of  this  comission  to  adopt  any  amendments  of  section  4  which 
the  General  Assembly  may  find  to  be  necessary  and  proper  for  protecting  the  interests 
of  the  people  of  the  Commonwealth. 

Before  submitting  the  very  brief  remarks  to  which  I  desire  to  ask  the  consideration 
of  the  Convention,  I  wish  to  express  my  sincere  thanks  to  the  gentlemen  of  this  com- 
mittee for  the  amendments  which  they  have  already  engrafted  upon  this  measure  and 
■^hich,  in  my  judgment,  greatly  strengthen  it  and  improve  it  from  the  standpoint  of  the 
most  earnest  advocate  of  the  principle  embodied  in  the  measure. 

I  understood  the  chairman  of  the  committee  to  say  that  they  had  adopted  no 
amendments  that  went  to  a  matter  of  principle.  In  my  judgment  that  article  as  it 
came  to  this  Convention  vested  arbitrary  power  in  this  commission.  A  number  of 
amendments  have  been  engrafted  upon  it  which  entirely,  in  my  judgment,  remove  that 
objection  and  confer  upon  this  commission  only  judicial  discretion  in  dealing  with  this 
subject,  reviewable  as  the  decree  or  judgment  of  any  other  court  would  be  by  the  high- 
est court  of  the  State;  and  in  other  particulars,  most  fortunately,  this  committee  has 
made  valuable  amendments  and  greatly  improved  the  efficiency  of  this  article. 

But  is  any  gentleman  on  that  committee  so  confident  of  his  infallibility  as  to  be- 
lieve that  that  measure  is  now  perfect?  Why,  Mr.  President,  I  have  such  admiration 
for  the  judgment  and  ability  of  the  chairman  of  that  comimitee  that  I  believe  if  he 
would  study  this  measure  for  twelve  months  to  come  in  all  of  its  bearings,  in  all  of  its 
details,  with  the  earnestness  which  he  has  devoted  to  it  for  the  last  three  months,  he 
would  find  each  day  that  some  improvement  could  be  made  upon  the  text  of  that 
measure  as  it  now  stands;  and  that  can  be  said  of  any  other  act,  especially  any  other 
empirical  act  like  this,  which  is  the  product  of  any  human  brain. 

Now,  Mr,  President,  able  as  the  members  of  this  Convention  are,  anxious  as  we  are 
to  take  a  perfect  law,  it  will  be  exceedingly  phenomenal  if  defects,  omissions  and  im- 
perfections are  not  developed  in  less  than  two  years  after  this  act  shall  have  gone  into 
operation;  and  the  power  should  be  placed  with  the  representatives  of  the  people  to 
give  the  necessary  relief,  if  such  a  condition  of  things  is  developed  by  the  practical  ex- 
perience of  the  Comjmonwealth  under  the  operation  of  this  law. 


2806 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  YIEGINIA. 


It  is  proper  that  this  should  be  done,  because  this  is  legislation.  I  have  the  greatest 
admiration  for  the  ability,  sincerity  and  patriotism  of  the  gentlemen  of  that  committee 
and  of  this  Convention,  but  I  do  not  believe  we  have  the  monopoly  of  all  the  wisdom, 
and  we  ought  to  permit  the  representatives  of  the  people,  by  a  two-thirds  vote,  to  give 
relief,  even  without  the  recommendation  of  these  three  commissioners. 

Mr.  President,  I  am  opposed  to  establishing  a  triumvirate  in  Virginia  which  shall 
be  absolutely  independent  and  superior  to  the  representatives  of  this  State  when  they 
shall  express  their  judgment  by  a  two-thirds  vote.  There  was  a  great  deal  in  the 
argument  used  by  my  friend  from  Augusta  (Mr.  Braxton)  in  opposing  the  amendment 
of  the  gentleman  from  Petersburg,  that,  perhaps,  by  a  misadventure,  the  General  As- 
sembly v/ould  sometimes  do  something  that  it  did  not  intend  to  do,  and  mar  or  cripple 
this  measure  in  its  efficiency;  if  it  was  given  an  unlimited  power  to  change  its  pro- 
visions; but  that  objection  cannot  be  urged  when  you  require  a  two-thirds  vote  of  both 
houses  of  the  General  Assembly,  and  I  am  willing  to  add,  also,  the  approval  of  the 
Governor  of  the  Commonwealth. 

So  guarded,  it  is  impossible  that  any  injustice  shall  be  done  or  that  the  efficiency 
of  the  operation  of  your  measure  can  be  impaired  by  any  action  of  the  General  Assem- 
bly; but  it  may  be  impaired  if  you  do  not  give  that  power. 

It  may  be  developed  by  the  operation  of  this  measure  certain  defects  in  it  which 
the  commissioners  themselves  or  a  majority  of  them,  for  some  reason,  would  not  care 
to  change,  but  which  the  representatives  of  the  people  of  Virginia  would  desire  to 
change  and  which  the  interests  of  the  Commonwealth  would  demand  should  be  changed; 
a.nd  I  would  not  remand  the  people  of  this  State  to  the  cumbrous  and  expensive  pro- 
cedure of  either  calling  a  Constitutional  Convention  or  adopting  an  amendment  to  your 
Constitution  in  order  to  obtain  such  relief  in  reference  to  some  matters  of  the  detail  of 
the  legislation  of  this  Commonv/ealth. 

It  is  a  legislative  act  that  we  embody  in  our  Constitution.  Guarded  as  it  has  been, 
I  would  be  willing  to  vote  for  it  if  I  were  a  representative  of  the  State  of  Virginia  in 
the  General  Assembly  and  I  am  willing  to  vote  for  it  as  a  member  of  this  Convention; 
but  I  do  not  think  that  we  should  deny  to  the  legislative  body  of  the  State  the  right  to 
exercise  its  proper  functions  under  restrictions  which  would  make  it  impossible  for  that 
power  to  be  abused. 

Mr.  Braxton:  Mr.  President,  I  do  not  desire  to  repeat  any  of  the  arguments  I  have 
made  on  the  amendments  offered  by  the  gentleman  from  Petersburg,  which  it  seems  to 
me  differs  very  little  from  this  amendment,  and  I  can  only  say  that  for  the  same  reasons 
that  the  Convention  overwhelmingly  voted  down  the  other  amendment,  I  trust  they  will 
vote  down  this  one  also. 

The  question  having  been  taken  by  yeas  and  nays,  the  result  was  announced — ayes 
12,  noes  38. 

The  amendment  was  rejected. 

Mr.  Barbour:  Mr.  President,  under  the  doctrine  which  seems  to  be  pretty  well 
supported,  that  the  mentioning  of  one  mode  of  amendment  is  exclusive  of  any  other 
mode,  and  in  order  to  obviate  any  doubt  that  might  be  raised  under  this  clause,  that  the 
effect  of  this  is  to  prevent  the  mode  of  amendment  provided  in  the  article  of  amend- 
ments adopted  a  few  days  ago,  I  propose  that  in  front  of  the  first  word  of  this  section 
the  following  language  be  inserted:  "In  addition  to  the  mode  of  amendment  provided 
for  in  article   ." 

At  the  suggestion  of  the  chairman  of  the  committee,  I  ask  that  those  words  be 
inserted  after  the  figures  1905,  instead  of  at  the  beginning  of  the  article,  so  that  it  will 
read:  "After  the  first  day  of  January.  1905,  in  addition  to  the  modes  of  amendment 
provided  for  in  article  ,  the  General  Assembly  may,"  etc. 

Mr.  President,  the  committee  accepts  that  amendment  and  hopes  it  will  be  adopted. 

The  amendment  was  agreed  to. 

Sub-section  L  was  adopted. 

Section  4  was  adopted. 


DEBATES  OE  THE  COJs'STITUTIOis'AL  COXVEXTIOX  OE  VIEGIis^IA.  2807 

Mr.  Braxton:  Mr.  President,  I  suggest  that  we  now  return  to  Section  1,  so  as  to 
enable  the  gentleman  from  King  and  Queen  (Mr.  Jones)  to  introduce  his  amendment 
which,  in  view  of  the  amendment  of  Section  4,  which  has  been  adopted,  will  be  un- 
objectionable so  far  as  I  know.    I  do  not  know  what  objections  others  may  have. 

Mr.  Claggett  B.  Jones:  Mr.  President,  as  I  understand  the  matter,  the  amendment 
was  offered  on  yesterday  and  passed  by  by  the  Convention  until  Section  4  could  be 
amended  as  proposed  by  the  committee,  so  I  ask  now  that  Section  1,  page  1,  line  13,  be 
amended  by  striking  out  "  sleeping  or  parlor-car  company." 

The  amendment  was  agreed  to. 

Mr.  Braxton:    I  move  that  Section  1  be  adopted  as  amended. 
Section  1  was  adopted. 
Section  5  was  then  read. 

Mr.  O 'Flaherty:  Mr.  President,  I  wish  to  renew  the  motion  I  made  in  Committee 
of  the  Whole,  to  insert  after  the  word  "  State,"  in  line  7,  the  words  "  except  charitable, 
religious  or  educational  corporations." 

The  Presiding  Officer:  The  question  is  upon  agreeing  to  the  amendment  offered 
by  the  gentleman  from  Warren. 

The  amendment  was  rejected — ayes  12,  noes  36. 

Mr.  Robertson:  Mr.  President,  I  desire  to  offer  an  amendment  to  that  section,  and 
I  do  not  care  very  much  whether  it  is  defeated  or  not.  I  desire  to  offer  an  amendment,- 
striking  out  in  the  eighth  line  of  Section  5,  the  language  "  or  not  less  than  $5,00." 

I  should  like  to  state  to  the  Convention,  if  the  members  will  listen  to  me  for  a 
minute,  the  object  of  my  amendment.  The  distinguished  chairman  of  this  Committee 
on  Corporations,  when  this  matter  came  up  before,  opposed  the  resolution  of  the  gen- 
tleman from  Warren  on  the  ground  of  "  de  minimim  non  curat  lex."  In  other  words, 
that  the  courts  and  the  legislatures  do  not  care  about  small  matters;  but  that  this  Con- 
stitution should  provide  even  for  the  amount  of  that  fee  you  are  going  to  charge  these 
companies  for  the  making  of  these  reports  to  this  commission,  I  respectfully  submit  it 
is  too  small  a  matter  for  this  Convention  to  go  into. 

He  has  provided,  in  this  section,  that  the  Legislature  may  provide  for  fees.  Now, 
it  does  seem  to  me  that  we  ought  to  leave  to  the  Legislature  the  amount  of  the  fees 
which  they  will  require  these  people  to  pay.  Some  of  the  gentlemen  say  five  dollars  is 
a  small  matter;  but,  since  I  have  been  in  this  Convention  here  for  eight  months,  five 
dollars  has  assumed  tremendous  proportions  to  me.  (Laughter.)  Five  dollars  is  not  a 
small  matter  in  these  hard  times.  These  charitable  institutions,  these  eleemosynary 
institutions,  have  some  right  to  be  heard  in  this  matter.  I  would  have  voted  for  the 
proposition  of  the  gentleman  from  Warren  except  that  I  was  prevented  from  doing  it 
by  reason  of  my  pair  with  the  gentleman  from  Prince  George. 

It  does  seem  to  me,  Mr.  President,  that  we  ought  to  leave  the  Legislature  free  to 
fix  these  things.  If  they  want  to  except  anj-body  from  the  operation  of  it  let  them  do 
it.  It  is  absurd  to  say  that  the  cost  of  filing  one  of  these  reports  will  necessarily 
amount  to  $5.00.  Some  of  these  charitable  institutions  may  not  have  that  $5.00  to  pay. 
The  business  they  do  in  the  nature  of  monej'-  transactions  may  be  very  small,  and  it 
would  probably  not  cost  a  quarter  to  file  the  report  they  desire  to  make. 

And  yet  we  propose,  for  the  purpose  of  raising  revenue  here,  as  is  wise,  of  course, 
and  to  pay  the  cost  of  this  commission,  to  create  a  tax  on  every  incorporated  company 
v/hatever,  whether  for  the  purpose  of  making  profit  or  not,  of  not  less  than  $5.00,  which 
the  Legislature  may  make  greater  than  $5.00.  The  principle  he  invoked  here  of  de 
minimis  non  curat  lex,  certainly  ought  to  prevail,  and  this  thing  ought  to  be  stricken 
out  of  the  Constitution.  We  ought  not  to  go  into  the  petty  detail  of  saying  exactly  how 
much  everybody  shall  pay  for  the  purpose  of  making  a  report  as  to  their  private  affairs. 

My  proposition  is  to  strike  out  the  words  in  line  8,  "  of  not  less  than  $5.00." 

Mr.  Braxton:  Mr.  President,  I  will  ask  the  attention  of  my  friend  from  Roanoke 
to  a  suggestion  in  the  way  of  a  substitute  for  his  proposition,  that  at  the  end  of  this 
section  this  be  inserted: 


2808  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Provided  that  the  General  Assembly  may  relieve  from  the  payment  of  the  fee  herein 
provided  for,  any  purely  charitable  institution  or  institutions. 

Mr.  Robertson:  I  will  accept  that,  for  the  simple  reason  that  I  do  not  expect  to 
get  anything  unless  the  gentleman  from  Augusta  says  so.  I  know  perfectly  well  the 
Convention  will  vote  down  any  proposition  I  offer  unless  I  get  the  consent  of  the  gen- 
tleman from  Staunton,  and  therefore  I  accept  it. 

Mr.  Braxton:    I  am  sorry  the  gentleman  cannot  accept  it  in  better  grace. 

Mr.  Robertson:    I  thank  you  sincerely  for  giving  me  that  much.  (Laughter). 

The  question  having  been  taken,  the  result  was  announced — ayes  35,  noes  14. 

The  amendment  was  agreed  to. 

Mr.  Eggleston:  On  page  21  of  this  report,  beginning  with  line  18,  I  find  the  follow- 
ing provisions: 

The  failure  by  any  corporation  for  two  successive  years  to  pay  its  annual  franchise 
or  license  fee,  or  to  make  its  said  annual  reports  in  connection  therewith  shall,  when 
such  failure  snail  have  continued  for  ninety  days  after  the  expiration  of  the  said  two 
years,  operate  as  a  revocation  and  annulment  of  the  charter  or  license  of  such  corpora- 
tion, as  the  case  may  be,  and  the  General  Assembly  shall  provide  additional  and  suitable 
penalties. 

Now,  Mr.  Chairman,  it  seems  to  me  that  this  provision,  which  enforces  the  forfeit- 
ure of  the  charter  of  a  home  corporation,  whereas  it  only  imposes  upon  the  outside 
foreign  corporations  a  penalty  of  forfeiting  its  license  to  do  business  in  the  State  of 
Virginia,  is  a  discrimination  against  the  home  corporations.  When  you  provide  a 
penalty  under  which  the  charter  of  a  home  corporation  is  forfeited,  you  may  put  in 
jeopardy  a  large  amount  of  property  that  is  invested  in  your  home  corporation.  In  the 
case  of  a  foreign  corporation  you  cannot  make  such  a  provision.  You  can  provide  for 
a  forfeiture  of  the  license  of  a  foreign  corporation  to  do  business  in  the  State  of  Vir- 
ginia, but  its  franchise,  its  corporate  existence,  remains  untouched.  And  what  will  be 
the  result  of  that? 

The  point  I  wish  to  make  is  that  the  force  and  effect  of  this  provision  is  a  direct 
discrimination  against  home  corporations.    Now,  what  will  be  the  result  of  that? 

If  a  set  of  men  wish  to  go  into  business  in  the  form  of  an  incorporated  company, 
you  offer  them  an  inducement  to  go  beyond  the  limits  of  the  State  of  Virginia  in  order 
to  get  their  charter,  because  when  they  take  their  charter  from  the  State  of  Virginia, 
they  are  liable  to  forfeit  it  as  a  penalty  for  failure  to  comply  with  that  law.  If  they 
get  it  from  West  Virginia  or  some  other  State,  a  failure  to  pay  that  tax  or  make  that 
report,  will  merely  work  the  forfeiture  of  their  license  to  do  business,  and  upon  com- 
plying with  the  law  the  license  would  be  restored.  But  when  they  have  forfeited  their 
charter,  their  corporate  existence  has  to  go,  and  you  will  peopardize  a  large  amount  of 
property  invested  in  these  private  corporations. 

Now,  sir,  we  ought  at  least  to  put  our  home  corporations  on  an  equal  footing  with 
foreign  corporations,  and  not  offer  any  inducements  to  business  men  to  go  beyond  our 
State  limits  to  get  their  charters,  thereby  placing  the  determination  of  all  their  litiga- 
tion beyond  the  reach  of  the  State  courts,  and  in  the  Federal  courts  for  decision.  Be- 
sides, there  are  other  objections  to  it.  I  would  suggest,  therefore,  Mr.  President,  that 
in  line  23,  the  words  "  and  annulment  of  the  charter,  or  "  be  stricken  out,  and  in  line 
24,  the  words  "  as  the  case  may  be  "  be  stricken  out.  Then  it  will  remain  in  this  way: 
That  the  annual  license,  the  right  to  do  business,  is  forfeited,  but  the  charter,  the  cor- 
porate existence  of  the  company,  is  not  forfeited.  It  leaves  with  the  Legislature  the 
right,  and  the  positive  mandate  on  them,  to  require  such  other  penalties  as  may  be 
necessary  to  enforce  a  compliance  with  the  law  requiring  these  reports  to  be  made. 

I  cannot  see  the  matter  in  any  other  light,  than  that  the  enactment  of  this  clause 
wull  put  a  home  corporation  at  a  great  disadvantage,  and  force  great  many  of  these  com- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2809 


panies  to  go  outside  of  the  State  of  Virginia  to  get  their  charters.  There  is  no  necessity 
for  it,  because  here  is  a  provision  requiring  the  General  Assembly  to  put  other  and 
additional  penalties  on  these  companies,  to  require  a  compliance  with  this  law.  and  a 
mandate  on  the  corporation  commission  to  see  that  all  these  laws  are  enforced. 

TVe  ought  not  to  undertake  to  forfeit  the  charter  of  a  company.  Suppose  the  com- 
pany is  in  court  and  in  the  hands  of  a  receiver,  it  is  beyond  the  power  of  the  stock- 
holders to  see  that  this  law  is  complied  with.  The  parties  at  whose  instance  it  had 
been  put  into  court  and  into  the  hands  of  a  receiver  may  be  inimical  to  the  very  ex- 
istence of  the  company.  The  persons  whose  property  is  invested  there  are  powerless  to 
protect  themselves  by  making  these  reports  and  paying  these  fees,  and  yet  tmder  this 
provision  their  corporate  existence  would  be  wiped  out  entirely  and  the  property  in- 
vested in  such  companies  put  in  jeopardy  and  there  is  no  alternative.  There  is  not 
even  power  in  this  commission  to  renew  or  revive  that  charter  under  any  circum- 
stances. It  is  wiped  out  of  existence.  They  must  wind  up  their  business,  no  matter 
what  loss  that  may  incur. 

I  hope  it  may  be  the  pleasure  of  the  Convention  to  adopt  this  amendment  so  as  to 
put  home  corporations  at  least  on  the  same  footing  with  foreign  corporations. 

I\Ir.  Braxton:  Mr.  President,  as  it  is  so  near  the  time  for  adjourning,  it  will  be 
impossible  for  me  to  reply  to  the  gentleman  and  for  the  Convention  to  take  a  vote  on 
this  matter  this  afternoon.  I  simply  say  now  that  this  matter  has  been  carefully  con- 
sidered and  the  objections  and  dangers  that  the  gentleman  refer  to  do  not  exist;  that 
this  provision  exists  in  the  constitutions  of  a  great  number  of  other  States,  States  that 
deal  most  liberally  with  corporations.  When  I  come  to  reply  to  him  I  think  I  will  have 
no  difficulty  in  satisfying  the  minds  of  the  members  of  the  Convention  that  the  dangers 
my  friend  imagines  may  result  from  this  will  not  restilt. 

On  motion  of  Mr.  Braxton  the  Convention  adjourned  tmtil  Monday,  March  3,  1902, 
aL  12  o'clock  M. 

MONDAY,  March  3.  1902. 

The  Convention  met  at  12  o'clock 

Prayer  by  Rev.  Alfred  Bagby.  D.  D.  "  _  -   '  ^ 

LEGISLATIVE  DEPARTMENT. 

Mr.  George  K.  Anderson:  I\Ir.  President.  I  desire  to  present  the  following  resolu- 
tion, which  I  ask  may  be  referred  to  the  Committee  on  the  Legislative  Department. 

Resolved.  That  Sections  2  and  3  of  the  report  on  the  Legislative  Department,  as 
adopted  by  the  Convention  be.  and  the  same  are  hereby,  rescinded,  and  that  the  follow- 
ing be  substituted  therefor: 

The  House  of  Delegates  shall  consist  of  not  more  than  one  hundred  and  not  less 
than  ninety  members;  the  Senate  shall  consist  of  not  more  than  forty  and  not  less  than 
thirty-three  members. 

Members  of  the  General  Assemblj'  shall  be  elected  quadrennially  for  the  tenn  of 
four  years,  on  the  Tuesday  succeeding  the  first  Monday  in  November,  by  the  voters  of 
the  several  cities  and  counties  constituting  the  respective  legislative  and  senatorial 
districts.  For  the  election  of  members  of  the  House  of  Delegates  and  members  of  the 
Senate  the  cotmties,  cities  and  towns  shall  be  divided  into  districts. 

Referred  to  the  Comimttee  on  the  Legislative  Department. 

The  President:  The  unfinished  business  is  the  report  of  the  Committee  on  Cor- 
porations. 

Mr.  Braxton:  If  there  are  no  amendments  to  be  offered  at  this  time,  I  move  that, 
without  disposing  of  Section  5  until  the  gentleman  from  Charlotte  shall  return,  we  pro- 
ceed with  the  consideration  of  Section  6. 

The  President:  That  will  be  taken  as  the  sense  of  the  body  unless  objection  is 
made. 

177 — Const.  Deb. 


2810  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

Section  6  was  read  and  adopted  without  amendment. 
Section  7  was  then  read  and  adopted. 

Mr.  Thom:    I  move  that  we  pass  by  the  consideration  of  Section  8. 
The  motion  was  agreed  to. 

Section  9,  with  slight  amendment,  was  then  adopted. 
Section  10  was  read  and  adopted. 
Section  11  was  temporarily  passed  by. 
Section  12  was  read. 

Mr.  Ayers:  I  would  call  the  attention  of  the  chairman  of  the  committee  to  the 
Louisville  and  Nashville  Railroad  Company,  running  in  this  State  from  Cumberland 
Gap  to  Norton,  and  which  has  developed  all  that  coal  section.  It  would  be  impossible 
under  this  provision  for  that  road  to  acquire  rights  of  way  to  build  branches  which  they 
have  been  so  far  authorized  to  build;  and  there  ought  to  be  given  the  right  of  exten- 
sion, because  they  are  public  benefactors  to  that  extent.  I  know  now  of  projects  of  the 
same  kind,  that  will  require  the  building  of  several  branch  roads  by  the  Louisville  and 
Nashville  railroads,  and  it  will  be  impossible  for  them  to  acquire  rights  of  way  under 
thfs  provision. 

Mr.  Braxton:  If  I  am  not  mistaken — and  if  I  am,  I  should  like  to  be  corrected  by 
the  gentleman  from  Wise — the  Louisville  and  Nashville  road  crosses  the  State  line; 
and  Section  12  says: 

But  this  section  shall  not  affect  any  public  service  corporation  whose  line  or  route 
extends  across  the  boundary  of  this  Commonwealth.  But  any  such  foreign  public  ser- 
vice corporation,  so  engaged,  shall  not  be  authorized  to  hereafter  acquire,  lease,  use  or 
operate,  within  this  State,  any  public  or  municipal  franchise  in  addition  to  such  as  it 
may  own,  lease,  use  or  operate  when  this  Constitution  goes  into  effect. 

My  impression  is  that  it  has  been  held  that  when  one  State  recognizes  the  charter 
of  a  railroad  granted  by  another  State,  and  allows  it  to  extend  within  its  boundaries,  it 
becomes  to  all  intents  and  purposes  a  domestic  corporation,  so  far  as  that  State  is 
concerned.  I  know  it  is  the  policy  of  many  States  to  require  railroad  companies  build- 
ing lines  within  their  limits  to  take  out  domestic  charters.  These  railroads  cannot 
build  their  new  lines,  as  a  rule,  without  the  exercise  of  the  right  of  eminent  domain, 
and  it  was  the  opinion  of  the  committee  that  the  right  of  eminent  domain  being  a 
right  of  sovereignty  which  the  State,  for  the  good  of  the  public,  grants  to  a  corpora- 
tion, it  should  not  be  granted  to  nor  exercised  by  foreign  corporations  where  it  could 
be  vaided,  if  in  any  case,  and  where  a  railroad  seeks  to  extend  its  lines  or  to  build 
a  new  line  of  railroad,  where  it  has  to  exercise  the  right  of  eminent  domain,  we  thought 
it  was  nothing  more  than  reasonable,  and  very  desirable,  that  that  road  should  be  re- 
quired to  take  out  a  State  charter  for  the  construction  of  that  road,  and  for  the  exer- 
cise of  the  right  of  eminent  domain.  Under  the  provisions  of  Section  2  of  this  article 
there  would  be  no  difficulty  in  obtaining  railroad  charters.  Heretofore  they  had  to  be 
obtained  by  special  act  of  the  Legislature,  and  were  more  or  less  difficult  to  get,  the 
granting  of  the  charter  frequently  being  fought  by  other  companies.  Under  the  law 
as  it  will  be  if  this  article  is  adopted,  railroad  charters,  like  all  others,  will  be  granted 
as  a  matter  of  course,  under  general  laws,  to  anybody  who  applies  for  them,  and  who 
will  comply  with  the  requirements  of  the  law  in  such  case.  There  will  be  no  diffi- 
culty, therefore,  in  the  company  taking  out  a  Virginia  charter,  and  if  it  undertakes  to 
exercise  the  right  of  eminent  domain,  we  think  it  proper  that  it  should  take  out  those 
charters. 

In  this  connection  I  would  like  to  explain  to  the  Convention  the  evils  we  sought 
to  reach  by  this  section.  For  some  reason  or  other,  sometimes  for  good  reasons  and 
sometimes  for  bad  reasons,  or  for  no  reason  at  all,  many  corporations  doing  busi- 
ness in  this  State  and  doing  business  exclusively  in  this  State,  obtain  charters  from 
foreign  States.    Many  people  seem  to  think  a  foreign  corporation  means  foreign  capi- 


DEBATES  OE  THE  COXSTIirilOXAL  COXVEXIIOX  OE  YIEGIXIA. 


2811 


tal  and  foreign  people;  but  if  you  reflect  for  a  moment  you  will  know  that  is  not  true. 
]\Iany  foreign  corporations  are  doing  business  in  this  State  wbich  are  organized  and 
owned  absolutely  by  residents  of  this  State,  and  in  which  there  is  not  one  cent  of 
foreign  capital.  On  the  other  hand,  people  who  live  outside  of  the  State,  and  foreign 
capital,  are  frequently  represented  in  a  domestic  corporation. 

Xow,  instances  of  this  sort  have  frequently  occurred.  The  initial  fee  charged  in 
some  States,  notably  in  West  Virginia  and  New  Jersey,  is  very  much  less  than  the 
charter  fee  charged  in  Virginia,  and  many  corporations  go  to  Xew  Jersey  and  West 
Virginia  and  obtain  charters  to  do  business  in  Virginia — companies  composed  of  Vir- 
ginia men,  and  stocked  entirelj^  by  Virginia  capital — thereby  defrauding  the  State 
(if  I  do  not  use  too  broad  a  term;  that  is  hardly  a  proper  term,  and  I  withdraw  it,  be- 
cause it  is  a  legitimate  thing),  but  preventing  the  State  from  obtaining  the  fee  which 
it  ought  to  have  for  such  a  charter.  In  other  cases,  in  order  to  be  able  to  take  their 
litigation  into  the  United  States  courts  in  every  case  that  involves  two  thousand  dol- 
lars or  more,  on  the  ground  that  they  themselves  are  citizens  of  a  foreign  State.  In- 
stances of  this  sort  have  occurred.  Local  companies,  whose  entire  operations  are 
vrithin  Virginia,  street  car  companies,  whose  entire  operations  are  limited  to  some  one 
municipality,  gas  companies,  electric  light  companies,  and  so  on,  are  operating  in  this 
State  under  foreign  charters.  Under  the  law  of  New  Jersey  it'  is  provided  that  if  a 
company  fails  to  pay  any  taxes  for  two  years  it  forfeits  its  charter.  Our  information 
is  that  there  are  a  number  of  companies  doing  business  in  this  State  to-day  and  claim- 
ing to  operate  under  a  foreign  charter,  when  that  foreign  charter  has  long  since  been 
forfeited  by  non-payment  of  taxes.  They  pay  no  taxes  there,  because  they  do  not 
live  there,  and  have  no  property  there,  and  they  have  forfeited  their  charters,  and  yet 
they  have  paid  no  taxes  here,  because  they  are  operating  under  a  foreign  charter. 
This  policy  of  requiring  all  companies  wherever  feasible  to  do  so,  to  operate  under  a 
local  charter,  is  one  that  is  recognized  throughout  the  United  States,  and  unless  it 
has  been  recently  passed,  there  is  now  pending  before  the  General  Assembly  of  the 
State  of  Xew  York  a  provision  recommended  to  the  assembly  by  the  present  Governor 
of  New  York,  and  endorsed.  I  understand,  by  a  considerable  majority  of  the  assembly, 
having  in  view  the  prohibition  of  this  same  abuse,  and  requiring  companies  to  take 
out  domestic  charters  unless  engaged  in  business  extending  beyond  the  limits  of  the 
State.  It  was  with  a  view  to  doing  that  that  we  provided  that  banking  companies  and 
companies  engaged  in  the  public  service,  such  as  street  car  companies,  gas  companies, 
electric  light  companies,  tramv%-ays,  and  things  of  that  sort,  unless  their  lines  cross  the 
boundary  of  the  State,  should  operate  under  domestic  charters,  and  even  in  those  cases 
where  we  could  not  effect  them  now,  if  they  seek  to  extend  their  lines,  especiallj^  if 
they  use  the  right  of  eminent  domain,  in  order  to  do  so  they  must  take  ottt  a  domestic 
charter  for  that  purpose. 

I  think,  for  the  reasons  I  have  stated,  the  ease,  cheapness  and  certainty  of  their 
being  able  to  get  a  domestic  charter  will  prevent  any  of  the  embarrassments  and 
delays  suggested  by  my  friend  from  X'orfolk  and  my  friend  from  Wise.  All  that  would 
be  necessary  wotild  be  for  them  to  apply  to  the  railroad  commission  just  as  they  now 
apply  for  a  railroad  charter  to  build  a  branch  line,  and  they  could  extend  their  line, 
if  necessary,  and  it  could  be  done  within  twenty-four  hours. 

After  the  word  "effect"  in  line  18,  insert  the  following:  "But  this  section  shall 
not  prevent  any  foreign  railroad  company,  operating  a  railroad  in  this  State,  from 
building  branch  roads,  not  exceeding  20  miles  in  length,  from  any  point  on  its  present 
line,  as  now  authorized  by  law." 

Mr.  Ayers:  IMr.  President,  the  Louisville  and  Nashville  Railroad  Company,  since 
it  built  its  road  into  Virginia  has  been  held  to  be  a  foreign  corporation,  and  so  has 
the  Baltimore  and  Ohio;  and  yet  the  State  of  Virginia  has  permitted  the  Louisville 
and  Nashville  to  come  and  build  in  this  State,  and  it  is  one  of  the  most  valuable  trans- 


2812  DEBATES  OE  THE  COiNTSTITUTIONAL  CON^VEI^TIOl^  OF  VIRGINIA. 

portation  lines  to  that  great  mineral  section  in  Southwest  Virginia  that  we  have.  I 
know  it  is  now  engaged  in  the  construction  of  and  will  construct  during  this  year, 
branch  lines,  and  it  will  constantly  need  to  build  these  branch  lines  to  develop  the 
coal  properties  of  that  section. 

In  answer  to  the  argument  of  my  friend  the  chairman  of  the  committee  (Mr.  Brax- 
ton) I  would  say  that  this  foreign  corporation,  although  it  might  get  these  charters, 
would  not  want  to  have  a  separate  corporation  organization  for  every  branch  coal 
road  of  from  three  to  five,  or  eight  miles,  which  it  should  want  to  build  in  the  State. 
It  would  have  a  dozen  separate  and  distinct  corporations  before  it  got  through  if  it 
obtained  a  charter  every  time  it  wanted  to  build  a  branch  line.  I  think  with  him, 
that  no  foreign  corporation  ought  to  be  permitted  now  to  build  into  the  State  under 
a  foreign  charter,  but  that  it  ought  to  obtain  a  domestic  charter;  but  the  roads  that 
are  now  operating  under  foreign  charters  in  the  State  ought  to  be  permitted  to  exer- 
cise the  same  authority  that  you  give  to  domestic  corporations  to  build  branch  lines 
not  exceeding  twenty  miles  in  length,  for  the  purpose  of  developing  industries  along 
the  line. 

I  think  really  that  this  is  so  manifestly  reasonable  and  just  that  my  friend  should 
accept  this  amendment. 

Mr.  William  A.  Anderson:  Mr.  President,  I  desire  to  ask  the  gentleman  from 
Wise  (  Mr.  Ayers)  if  he  remembers  what  are  the  corporate  rights  of  the  Louisville 
and  Nashville  Railroad,  as  to  the  terminal  points  of  its  line  in  Virginia?  Does  it 
extend  east  or  north  of  Norton?  i 

Mr.  Ayers:  Yes,  sir;  it  is  Norton.  I  think  it  was  left  slightly  indefinite,  because 
at  the  time  the  permission  was  granted  they  had  not  definitely  decided  upon  Norton 
as  the  junction  point.  My  recollection  is  it  was  at  some  point  in  the  coal  fields  of 
Wise  county,  and  that  it  is  now  fixed  at  Norton. 

All  I  want  to  do  by  this  amendment  is  to  retain  for  that  road  from  Cumberland 
Gap  to  Norton  the  right  which  has  been  given  every  other  railroad  in  the  State, 
to  build  branch  roads  not  exceeding  twenty  miles  in  length,  and  for  the  purpose  of 
building  those  roads,  to  exercise  the  right  of  eminent  domain  that  was  granted  it  in 
building  nearly  100  miles  of  road  that  it  did  build  in  Virginia. 

Mr.  Green:  Mr.  President,  I  trust  the  amendment  of  the  gentleman  from  Wise 
(Mr.  Ayers)  will  not  be  adopted.  We  have  had  some  experience  with  the  Baltimore 
and  Ohio  Railroad  in  the  State  of  Virginia,  and  the  case  which  the  lawyers  of  the  State 
will  recognize  as  Noel  vs.  The  Baltimore  and  Ohio  Railroad  Company.  The  Supreme 
Court  of  the  State  supposed  it  v/as  liable  to  the  laws  of  the  State,  and  the  decisions  of 
the  courts.  They  so  held,  and  that  railroad  was  held  to  a  responsibility  from  which 
the  Baltimore  and  Ohio  Railroad  imagined  the  court  of  a  foreign  jurisdiction,  the 
United  States  court,  which  I  call  a  court  of  foreign  jurisdiction,  would  relieve  them. 
They  moved  the  court  to  transfer  that  case  to  theFederal  Court,  and  it  was  refused 
on  the  ground  that  they  were  liable  in  the  State  courts.  The  railroad  company  took 
an  appeal  in  that  case  to  the  Supreme  Court  of  the  United  States,  and  that  court  re- 
versed the  decision  of  the  State  court  of  Virginia,  and  we  had  to  enter  up  a  judg- 
ment in  the  State  here  that  we  had  no  jurisdiction  over  that  railroad  whenever  it 
chose  to  go  away  from  the  jurisdiction. 

Now,  although  the  section  provides  that  it  shall  not  interfere  with  them  as  they 
stand  now,  if  they  wish  to  extend  their  road,  if  they  wish  to  acquire  new  priviliges,  if 
they  wish  to  adopt  some  improvement  which  will  benefit  them  in  Virginia,  they  can- 
not do  it  without  taking  out  a  charter  in  this  State;  and  when  they  take  out  the  charter 
for  the  purposes  that  the  gentleman  from  Wise  has  indicated,  that  very  minute  they 
will  become  subject  to  the  decisions  of  the  Supreme  Court  of  Virginia.  Now,  no  Vir- 
ginian ought  to  object  to  that.  Why  should  not  our  State  administer  her  own  laws, 
and  compel  people  and  corporations  who  are  doing  business  in  the  State  to  conform 
themselves  to  the  laws  of  the  State  of  Virginia  and  the  decisions  of  its  courts?  Why 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


2Sld 


sliould  any  corporaiion  be  encouraged  lo  go  abroad  and  gei  corporaie  chariers  and 
come  down  into  Virginia  and  do  business,  and  escape  ihe  responsibility  iiere  wlieneyer 
ii  thinks  some  other  State  or  jurisdiction  has  decided  in  its  favor,  and  deliberately  go 
over  there  and  have  its  case  tried  and  decided?  That  is  manifestly  improper.  It 
is  clearly  right  that  if  these  people  come  now  into  Virginia  and  further — and  desire 
any  more  privileges,  we  should  require  them  to  subject  themselves  to  A'irginia's  laws 
and  the  decisions  of  her  courts. 

So  much  for  the  Baltimore  and  Ohio  Railroad,  I  know  nothing  particularly  against 
them;  but  as  to  the  Louisville  and  Xashville  Railroad,  which  the  gentleman  from  VTise 
is  championing,  I  beg  to  say  that  with  some  knowledge  of  that  road,  by  a  careful 
examination  of  the  cases  before  the  Interstate  Commerce  Commission,  it  is  the  most 
infamously  unjust  and  oppressive  railroad  that  has  ever  afflicted  the  world.  It  has 
no  toleration  for  the  people,  no  desire  to  assist  any  country  through  which  it  goes, 
but  it  is  a  grasping  monopoly  of  the  very  worst  kind.  It  does  now,  and  has  had.  I 
believe,  more  cases  of  appeals  from  the  decisions  of  the  Interstate  Commerce  Commis- 
sion, trying  to  correct  its  oppressions,  than  all  the  other  railroads  in  the  United 
States.  It  fights  every  decision.  It  seeks  in  every  possible  way  to  avoid  any  sort 
of  just  rule  that  can  be  applied  to  it,  and  it  ought  not  to  have  any  privileges  what- 
ever in  this  State.  If  it  wants  to  build  a  mile  of  road,  it  ought  to  be  required  to  sub- 
ject itself  to  the  laws  and  decisions  of  the  State  of  Virginia. 

I  do  tiTLSt  the  Convention  will  not  change  this  provision,  which  I  think  is  a  very 
moderate  rule.  If  I  had  had  the  drawing  of  it.  I  would  have  required  these  very 
people,  before  they  could  go  over  this  land,  to  get  corporate  powers  from  the  State 
of  Virginia  and  subject  themselves  to  it;  but  I  did  not  have  the  drawinffs  of  it.  and 
I  submit  to  it  as  it  is.  I  do  not  believe  there  ought  to  be  any  citizen  or  corporation 
in  the  State  of  Virginia  which  is  not  required  to  submit  to  its  laws  and  the  decisions 
of  its  courts. 

Mr.  Ayers:  Mr.  President,  I  am  perfectly  familiar  with  the  case  the  gentleman 
has  quoted,  in  which  it  was  very  properly  decided  by  the  Supreme  Court  of  the  United 
States  that  the  Baltimore  Railroad,  as  a  non-resident  corporation,  had  a  right  to  re- 
move its  cause  to  a  Federal  court.  That  was  denied  to  it  and  it  went  on  through  the 
courts  in  Virginia,  and  went  to  the  Supreme  Court  of  the  United  States,  where  that 
question  was  made  and  the  case  was  reversed.  The  question  was  not  raised  in  our 
Supreme  Court  at  all.  It  was  made  in  the  court  below.  The  railroad  assigned  as  error 
the  refusal  to  remove  the  cause,  and  it  was  very  properly  decided  to  be  error. 

I  have  also  had  some  experience  in  litigation  in  behalf  of  the  State  against  the 
Baltimore  and  Ohio  Railroad  in  the  Federal  courts.  The  Federal  courts  finally  main- 
tained the  right  of  Virginia  tmder  properly  constructed  tax  law  to  tax  the  property 
01  the  Baltimore  and  Ohio  Railroad,  movable  and  real,  in  the  State  oi  Virginia.  I 
am  not  here  as  an  apologist  for  either  the  Baltimore  and  Ohio  or  the  Louisville  and 
Xashville  railroads,  but  I  am  here  to  ask  that  we  shall  not  blindly  strike  at  non- 
resident corporations  that  have  been  invited  to  come  into  this  State  and  put  their 
money  down  here  and  build  a  railroad  to  develop,  as  they  have  developed,  large  sec- 
tions of  this  State,  and  to  ask  on  behalf  of  the  people  who  have  to  ship  over  that 
road,  and  who  want  to  ship  over  it,  that  it  shall  not  be  denied  the  right  to  build  these 
smaU  branch  roads,  or  coerced  into  becoming  a  domestic  corporation  as  to  the  other 
rights  the  State  has  granted  them,  after  the  State  has  invited  them  to  come  here.  I 
do  not  think  the  State  should  say:  "We  will  hold  yon  up  like  a  highwayman,  and  make 
you  become  a  domestic  corporation,  although  we  passed  an  act  inviting  you  to  come 
into  the  State  of  Virginia  and  expend  your  money,  before  you  shall  have  the  right  that 
we  extend  to  all  the  other  corporations  in  the  State." 

It  is  unjust.  It  is  unreasonable.  It  is  a  burden  that  will  be  placed  upon  our 
people,  because  the  Louisville  and  Xashville  is  not  dependent  upon  that  seventy-five 
miles  of  road  for  its  profits,  and  before  it  would  come  in  and  ask  for  a  charter  to 


2814  DEBATES  OF  THE  COi^STITUTIONAL  CONVENTION  OF  VIRGINIA. 

build  a  road  a  mile  or  five  miles  long,  and  subject  to  a  domestic  charter  the  seventy- 
five  miles  which  it  has  come  in  and  built  under  the  invitation  of  the  State  of  Vir- 
ginia, through  laws  passed  for  that  purpose;  they  will  not  build,  and  you  check  devel- 
opment of  that  country.  It  does  not  interfere  with  the  general  principle  contained 
in  this  article,  that  they  should  not  be  permitted  to  go  on  and  extend  their  line  to 
Norfolk  or  Lynchburg,  or  to  any  other  point  without  obtaining  a  domestic  charter. 
It  simply  gives  them  the  right  they  exercise  to-day,  which  you  gave  them  when  they 
came  into  the  State.  I  am  not  certain  that  they  have  not  a  vested  right  that  you 
cannot  take  away;  but  be  that  as  it  may,  it  is  unjust  to  the  people  who  are  shippers 
over  the  line  to  adopt  this  provision. 

I  wish  to  say  to  my  friend  from  Danville  (Mr.  Green)  that  I  do  not  know  of  any 
railroad  that  does  not  get  about  everything  out  of  the  traffic  and  the  people  who 
ship  over  it  that  it  can  get.  The  first  question  is,  how  much  will  It  bear?  That  is 
really  the  rule,  and  the  Louisville  and  Nashville  is  no  better  and  no  worse  than  most 
other  roads.  If  the  gentleman  would  go  along  the  line  of  the  Louisville  and  Nash- 
ville Railroad  if  he  had  to  deal  with  the  traffic  department  of  the  Louisville  and 
Nashville  Railroad,  as  I  have  had  to  do,  he  would  say  that  the  Louisville  and  Nash- 
ville comes  as  near  granting  what  is  fair  and  living  up  to  it  as  any  of  the  other  rail- 
roads. I  have  had  experience  with  it  for  the  last  twelve  years,  ever  since  the  road 
has  been  built  in  the  State  of  Virginia,  and  while  it  has  been  hard  at  times  to  get 
them  to  do  what  I  believed  to  be  fair  in  regard  to  development,  I  find  that  if  you 
finally  negotiate  with  and  bring  them  up  to  the  point,  the  company  lives  squarely  up 
to  it.  I  wish  to  say  to  the  gentleman  that  I  will  join  him  to-day  in  giving  the  Inter- 
state Commerce  Commission  full  power  to  enforce  its  decrees  and  laws,  and  full 
powed  to  make  rates;  but  as  long  as  it  has  not  full  power,  you  need  not  expect  any 
railroad  in  the  United  States  to  sit  down  and  submit  to  what  it  believes  to  be  an 
imfair  ruling  if,  by  resistance,  it  can  avoid  it. 

It  is  begging  the  question,,  to  attack  that  railroad.  What  I  ask  here  is  for  the 
interests  of  my  constituents  directly  and  indirectly  for  the  interests  of  all  the  people 
of  the  State.  I  say  it  would  be  manifestly  unjust  to  cut  off  this  railroad,  which  you 
have  invited  to  come  in  here,  and  which  has  expended  probably  $2,000,000  in  build- 
ing its  lines  and  branch  lines,  and  which  is  to-day  hauling  an  immense  tonnage  of 
coal  and  coke  to  the  west  from  that  region  of  country.  There  are  a  number  of  lines 
to  be  built  this  year,  and  if  they  have  no  right  to  exercise  the  right  of  eminent  domain, 
these  roads  will  not  be  built,  because  they  are  not  going  to  come  in,  subject  to  being 
held  up  in  pursuance  of  this  provision.  They  will  go  on  developing  as  far  as  they 
have  built,  and  let  that  be  the  end  of  it.  They  will  not  surrender  their  rights  in  the 
part  of  the  road  they  have  already  built  and  become  a  domestic  corporation  as  to  the 
road  from  Cumberland  Gap  to  Norton,  in  order  to  condemn  the  land  to  build  a  branch 
road  out  to  a  factory  I  might  build  500  yards  off  the  line  of  the  road.  I  do  not  ask 
anything  but  what  is  fair  and  should  be  granted. 

Mr.  Thom:  Mr.  President,  I  shall  make  no  motion  about  the  matter  to  which 
I  am  about  to  allude;  but  I  ask  at  the  hands  of  the  chairman  and  members  of  the 
Committee  on  Corporations  a  calm  consideration  of  the  suggestion  that,  beginning  in 
line  14,  at  the  word  "but,"  everything  be  stricken  out  down  to  the  word  "the,"  which  is 
the  last  word  in  line  18.  I  shall  take  advantage  of  the  motion  which  the  gentleman 
from  Wise  (Mr.  Ayers)  had  made  to  give  my  reasons  for  this  suggestion. 

I,  personally,  am  not  in  accord  with  the  policy  which  would  require  every  corpora- 
tion doing  business  in  the  State  to  become  a  domestic  corporation.  I  believe  the  best 
interests  of  our  people  will  be  protected  by  free  trade  among  the  institutions  of  this 
country  who  desire  to  do  business  with  us.  I  believe  that  any  other  policy  will  result 
in  circum,scribing  the  volume  of  business  which  will  bring  employment  to  our  people 
and  invite  wealth  among  us.  I  say  that  merely  to  put  myself  upon  record  upon  that 
position.    I  am  not  attempting  in  any  practical  way  to  antagonize  the  policy  to  the 


DEBATES  OE  THE  C0X5TITUTT0XAL  COXVEXTIOX  OF  YIEGIXIA. 


2815 


contrary  which  has  found  favor  with  this  body;  but,  waiving  that,  we  find  a  condi- 
tion of  affairs  already  existing  among  us  under  which  there  are  two  great  lines  of 
railroad  extending  across  our  borders,  and  which  have  for  years  been  doing  business 
among  us.  They  have  obtained  from  the  representatives  of  the  people  the  rights 
v/hich  they  are  enjoying;  and,  in  a  word,  those  rights  are  that  as  to  those  two  roads 
they  may  retain  the  charter  of  the  State  which  gave  them  birth,  and  that  they  should 
operate  here  among  our  people  under  an  enabling  act,  instead  of  a  different  charter 
of  incorporation. 

Now,  those  railroads  have,  just  as  others  have,  increased  our  taxable  value.?. 
They  have  built  up  our  communities.  They  have  furnished  means  of  transportation 
to  our  people.  They  have  brought  business  among  us.  The  question  is  whether  it 
is  sound  policy  on  the  part  of  the  State  to  say  to  those  two  railroads,  'Tf  you  extend 
a  foot  of  your  line  within  our  borders,  if  you  go  and  knock  at  the  gates  of  any  other 
city  of  Virginia,  you  will  be  obliged  to  do  so  under  another  and  a  domestic  corpora- 
tin."  Suppose,  for  example,  the  people  of  Danville  were  to  have  an  opportunity  of 
getting  the  Baltimore  and  Ohio  Railroad  to  extend  to  that  city,  and  it  should  want 
a  municipal  franchise  for  the  purpose  of  entering  it,  is  it  necessary  either  to  the  liberty 
or  to  the  interest  of  our  people  that  an  impediment  should  be  thrown  in  the  way  of 
the  people  of  Danville  having  that  facility.  Suppose  the  Baltimore  and  Ohio  Railroad 
should  do  as  is  suggested,  and  extend  its  line  to  the  city  of  Norfolk — 

Mr.  Braxton:  What  foreign  corporation  owns  any  railroad  in  the  State  outoide 
of  the  Louisville  and  Nashville? 

:Mr.  Thorn:    The  Baltimore  and  Ohio. 

Mr.  Braxton:    I  do  not  think  the  Baltimore  and  Ohio  owns  any  road  in  the  State. 

Mr.  Thom:  My  recollection  is  that  it  does;  that  it  has  been  decided  by  the  Court 
of  Appeals  to  be  operating  in  the  State  under  an  enabling  act. 

Mr.  Braxton:  My  impression  is  that  the  Valley  Railroad  owns  the  road  from  Har- 
risonburg to  Lexington,  and  operates  it  in  its  own  name,  and  the  Winchester  and 
Potomac  road  owns  the  road  from  Winchester  to  Harper's  Ferry. 

]\Ir.  Thom:  Then  if  the  Baltimore  and  Ohio  operates  it.  it  is  doing  it  by  lessee? 
If  it  should  build  a  road,  every  mile  of  road  it  would  build  would  be  to  the  advan- 
tage of  our  people.  Suppose  the  Baltimore  and  Ohio  should  be  willing  to  extend  its 
line  to  the  seaboard  at  Norfolk,  is  there  any  just  public  policy  on  the  part  of  the 
State  or  its  people  that  would  prevent  it,  under  its  present  corporate  form,  and  sub- 
ject, as  it  is  now,  to  our  courts^  whether  they  be  State  or  Federal? 

Now,  to  obtain  a  theoretical  policy  of  Constitution,  is  it  wise  in  us  to  go  so  far  as 
to  say  that  as  to  these  companies  that  have  come  in  here  under  a  policy  of  our  law 
heretofore  established,  no  further  public  franchises  by  the  State  and  no  municipal 
franchises  by  the  cities  shall  be  granted  to  them?  That  is  the  question;  and  I  want 
here  to  say  that,  while  I  have  the  highest  admiration  and  the  warmest  affection  for 
my  friend  from  Danville  (Mr.  Green),  who  presented  his  views  to  the  Convention  a 
moment  ago,  I  must  most  earnestly  dissent  from  his  suggestion  that  the  Federal  courts 
of  the  L'nited  States  are  foreign  to  the  State  of  Virginia  in  any  patriotic  or  proper 
sense.    I  regard  those  courts  as  much  my  courts  as  the  courts  of  the  State  of  Virginia. 

l^^T.  Ayers:  ]\Ir.  President,  I  suggest  to  the  gentleman  from  Norfolk  that  if  our 
sister  States  should  adopt  the  same  measures  with  regard  to  our  corporations  as  we 
propose  to  adopt  with  regard  to  theirs,  we  would  not  have,  as  we  have  to-day,  cor- 
porations in  Virginia  operating  roads  in  every  Southern  State. 

Mr.  Thom:  Yes,  sir,  I  merely  wanted  to  say,  Mr.  President,  that,  speaking  for 
myself,  and,  I  hope,  for  my  people,  the  sentiment  which  would  regard  any  institution 
of  our  couiitry,  whether  Federal  or  State,  as  foreign  to  Virginia  will  never  gain 
acceptance  in  the  State  of  Virginia,  and  as  I  started  out  to  say,  I  make  that  state- 
ment with  the  deepest  feeling  of  affection  and  the  highest  sentiments  of  admiration 
for  my  friend  from  Danville,  whose  remarks  caused  me  to  enter  upon  this  line  of 


2816  DEBATES  OF  THE  CONSTITUTIOi^AL  COiSTVENTION  OF  VIRGINIA. 

thought.  I  shall  not  enlarge  upon  these  views.  I  merely  want  to  enter  my  protest, 
itiasmuch  as  they  have  been  uttered  upon  this  floor,  so  that  at  least  it  will  not  be 
considered  as  the  universal  sentiment  of  this  Convention. 

Now,  as  to  the  matter  directly  in  hand.  As  was  suggested  by  my  friend  from 
Wise  (Mr.  Ayers),  every  one  of  the  great  railroad  systems  of  the  State  of  Virginia 
is  operating  in  from  two  to  ten  States  of  this  Union.  Take  the  Chesapeake  and  Ohio; 
it  operates  outside  the  State  of  Virginia.  Take  the  Southern  Railway  Company;  under 
a  charter  of  the  State  of  Virginia  it  is  operating  in  ten  States  of  tnis  Union.  Now, 
where  can  we  expect  liberal  treatment  in  other  States  of  the  Union  if  we  deny  it 
to  them?  We  have  only  two  short  roads  chartered  by  foreign  States  doing  business 
in  the  State  of  Virginia,  and  yet  all  of  our  great  systems  have  their  rights  recognized 
by  States  south  of  us,  and  the  whole  of  their  transportation  facilities  are  furnished 
to  them  under  charters  granted  by  other  States  than  their  own.  Would  it  be  liberal, 
would  it  be  good  policy  to  invite  the  Constitutional  Conventions  of  other  States  south 
of  us,  as  they  gather  to  deal  with  this  suffrage  question,  to  take  the  narrow  view  of 
this  question  that  no  railroad  of  Virginia  shall  extend  a  foot  within  the  States  of 
North  Carolina,  South  Carolina,  Georgia,  Alabama,  Mississippi,  Kentucky  and  the 
other  States  of  the  Union;  and  yet  if  we  do  it  as  to  the  Baltimore  and  Ohio  and  as 
to  the  Louisville  and  Nashville,  how  can  we  complain  if  a  Constitutional  Convention 
is  held  in  the  State  of  Georgia,  and  they  say  that  the  Southern  Railway  Company,  char- 
tered by  Virginia  shall  not  build  a  twenty  mile  branch  without  giving  up  its  Virginia 
charter  and  taking  out  one  under  the  laws  of  that  State. 

So  with  the  other  matter.  Every  impediment  that  we  throw  in  the  way  of  the  cor- 
poration of  another  State  may  be  repaid  to  us  by  a  similar  impediment  thrown  in  the 
way  of  our  corporations  in  other  States.  We  are  in  a  more  vulnerable  position  than 
any  other  State  of  the  Union,  because  we  furnish,  under  Virginia  charters,  more  rail- 
roads to  the  South  than  any  of  the  other  States  furnish  to  us. 

I  ask  at  the  hands  of  this  committee  that  they  will  take  this  matter  under  con- 
sideration until  after  recess,  and  determine  whether  they  cannot  see  their  way  clear 
to  reverse  their  policy  in  so  far  as  I  have  alluded  to  it. 

On  motion  of  Mr.  Braxton  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTER  RECESS. 

The  Convention  reassembled  at  fhe  expiration  of  the  recess. 

The  President:  The  pending  question  is  upon  agreeing  to  the  amendment  offered 
by  the  gentleman  from  V/ise  (Mr.  Ayers). 

Mr.  Braxton:  Mr.  President,  with  the  consent  of  the  gentleman  from  Wise  and 
the  gentleman  from  Norfolk  I  wish  to  ask  the  Convention  to  permit  this  matter  to 
be  passed  by  for  the  present. 

The  motion  was  agreed  to. 

In  line  6,  I  ask  that  the  word  "similar"  be  inserted  before  the  word  "domestic"  so 
that  it  will  read  "or  be  relieved  from  compliance  with  any  of  the  requirements  made 
of  similar  domestic  corporations." 

The  President:    The  amendments  will  be  made,  without  objection. 

Mr.  Braxton:    Mr.  President,  at  the  end  of  the  sentence,  in  line  9,  ending  with 

the  word  "corporation,"  I  desire  to  ask  that  the  v/ords  "without  discriminating  against 
them"  be  inserted;  but  before  asking  that,  I  would  like  to  have  an  amendment  put 
at  the  end  of  the  section;  because  unless  this  amendment  at  the  end  is  adopted,  I 
would  not  be  willing  to  have  the  words  referred  to,  put  in  at  the  end  of  the  sentence 
in  line  9.  As  it  is  written  now,  it  provides  that  "no  foreign  corporation  shall  be  re- 
lieved from  compliance  with  any  of  the  requirements  made  of  similar  domestic  cor- 
porations by  the  Constitution  and  laws  of  this  State,  where  the  same  can  be  made 
applicable  to  such  foreign  corporations." 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2817 


Tlie  idea  the  committee  had  in  that  language  was  that  they  would  not  be  held 
applicable  to  a  foreign  corporation,  when  the  effect  of  appljung  them  to  a  foreign 
corporation  would  be  put  to  it  at  a  disadvantage  to  the  domestic  corporation.  It 
has  been  suggested  to  us,  however,  that  that  will  not  necessarilj-  be  the  construc- 
tion, and  we  have  been  requested  to  insert  the  words  "without  discriminating  against 
them"  so  that  it  would  not  be  made  obligatory  to  apply  to  foreign  corporations  the 
requirements  of  similar  domestic  corporations,  unless  it  could  be  done  without  dis- 
criminating against  foreign  corporations.  We  are  perfectly  willing  that  that  amend- 
ment should  be  made,  provided  that  at  the  same  time  it  be  made  perfectly  clear  that 
the  Legislature,  while  not  required  to  discriminate  against  the  foreign  corporations, 
shall  be  left  free  to  discriminate  against  them  if  they  choose. 

Therefore,  I  shall  first  ask  that  at  the  end  of  the  section  these  words  be  inserted: 
"And  nothing  in  this  section  shall  restrict  the  power  of  the  General  Assembly  to  dis- 
criminate against  foreign  corporations  whenever  and  in  whatsoever  respect  it  msLj 
be  deemed  expedient  or  wise  to  do  so."  If  that  is  inserted  we  have  no  objection  to 
the  insertion  being  made,  in  line  9,  of  the  words  "without  discriminating  against 
them."  In  other  words,  it  is  not  our  purpose  to  require  the  Legislature  ever  to  dis- 
criminate against  the  foreign  corporations,  but  it  is  equally  not  our  purpose  to  pro- 
hibit the  Legislature  from  discriminating  against  them  should  they  ever  deem  it 
proper  to  do  so. 

In  many  States,  notably  in  Xew  York,  the  policy  has  been  adopted,  in  certain 
cases,  where  it  can  be  applied  wisely,  to  discriminate  against  foreign  corporations 
by  making  a  slight  change  in  the  tax  on  them,  or  otherwise.  Your  committee  does 
not  know  and  does  not  wish  to  be  understood  as  saying  that  in  any  particular  case 
it  will  be  vrise  to  discriminate  against  the  foreign  corporations;  but  we  are  very 
particular  that  no  language  be  used  which  might  have  the  effect  of  prohibiting  such 
a  discrimination  if  the  Legislature  should  ever  deem  it  wise  to  make  it.  I  will  state 
for  myself  that  I  think  it  is  very  possible  the  Legislature  may  sometimes  think  it 
wise  to  make  such  a  discrmination,  in  later  years,  certain  of  the  States,  notably  Dela- 
ware, Xew  Jersey,  and  West  Virginia,  have  adopted  such  a  policy  tov^-ards  the  char- 
tering of  companies  certainly  on  a  very  liberal,  and  as  some  people  think,  a  loose- 
jointed  method,  that  many  of  the  States  have  deemed  it  wise  to  pass  laws,  and  as  I 
stated  this  morning  the  State  of  Xew  York,  if  it  has  not  already  done  so,  rs  engaged 
now  in  the  consideration  of  a  bill  which  will  doubtless  become  a  law,  discriminating 
against  charters  from  those  and  other  States,  the  policy  being  that  wherever  a  cor- 
poration can  act  under  a  domestic  charter,  it  is  to  the  interest  of  the  State  that  it 
should  so  act. 

Fuliy  recognizing  that  that  policy  of  discrimination  might  be  carried  to  an  unwise 
extent,  we  still  do  not  think  it  would  be  wise  to  put  anything  in  here  that  would  fetter 
the  Legislature  in  making  such  discrimination  whenever  and  in  whatsoever  respect 
they  choose.  That  part  of  the  section  which  ends  in  line  9  is  obligatory  in  that  it 
requires — not  permits,  but  requires — every  provision,  restriction  or  regulation  appli- 
cable to  a  domestic  charter  to  be  applied  to  a  foreign  charter,  and  where  it  is  appli- 
cable to  it,  and.  as  we  would  like  to  put  it  in,  where  it  can  be  done  without  discrimin- 
ating against  them,  but  where  such  application  would  amount  to  a  discrimination 
against  the  foreign  charter,  it  is  our  purpose  not  to  make  it  obligatory,  but  to  make  it 
permissive,  that  the  Legislature  may  apply  it  or  not.  as  it  may  see  fit. 

I  trust  I  make  myself  clear  to  the  Convention. 

Mr.  Thorn:  Before  my  friend  gets  further  in  his  remarks  I  wish  to  ask  him 
whether  there  is  anything  in  his  opinion  in  the  language  of  the  section  down  to  line  3, 
to  which  he  alludes,  to  suggest  any  discrimination  against  foreign  corporations,  or 
vrhether  it  is  not  the  purpose,  as  clearly  expressed  there,  to  simply  put  foreign  cor- 
porations and  domestic  corporations  on  the  same  footing. 

^Ir.  Braxton:    I  am  inclined  to  think  that  is  true,  and  that  was  the  understand- 


2818  DEBATES  OF  THE  CONSTITUTION-AL  CONVEl^TION  OF  VIRGIMA. 

ing  of  the  language,  when  it  was  adopted  by  the  committee,  but  some  gentlemen  inter- 
ested in  such  matters  have  called  our  attention  to  what  they  think  is  a  possible  con- 
struction; and  while  we  do  not  think  that  is  a  correct  construction,  we  are  perfectly 
willing  to  put  it  beyond  all  peradventure  by  the  insertion  of  the  language  proposed 
in  the  amendments. 

Mr.  Thorn:  What  is  it  these  gentlemen  think  might  be  done  antagonistic  to  for- 
eign corporations? 

Mr.  Braxton:  I  will  give  my  friend  an  illustration  thut  was  given  to  us.  In  the 
case  of  insurance  companies,  they  are  charged  a  license  doing  business.  At  pres- 
ent that  license  is  the  same  on  domestic  and  foreign  corporations,  and  amounts  to 
$200  a  year  and  one  per  cent,  of  the  business  done  by  them  in  the  State,  and  there- 
fore it  can  be  applied  without  burden  indiscriminately  to  domestic  and  foreign  cor- 
porations. It  was  suggested  to  us  that  the  time  might  come  when  the  Legislature  in 
its  wisdom  would  think  it  best  to  tax  domestic  insurance  companies  a  license  tax 
based  upon  the  entire  amount  of  business  they  do  everywhere  or  upon  their  capital 
stock,  and  that  if  such  a  provision  was  applied  to  a  foreign  insurance  company,  if  it 
was  made  obligatory  to  apply  to  foreign  insurance  company,  it  might  have  the  effect 
to  put  them  to  such  disadvantage,  they  being  possibly  subject  to  a  similar  tax  where 
they  are,  that  it  would  drive  them  out  of  the  State,  or  else  compel  the  Legislature  to 
forego  what  they  miglit  think  to  be  a  desirable  method  of  taxing  domestic  corpora- 
tions. 

Mr.  Thorn:  What  I  am  getting  at  is  that  the  language  you  are  suggesting  at  the 
end  of  the  section  is  paying  a  very  severe  penalty,  and  unless  it  is  absolutely  neces- 
sary to  change  the  language  contained  in  the  first  part  of  the  section,  I  think  a  very 
distinctly  dangerous  policy  is  being  suggested  in  the  Constitution  by  the  last  lan- 
guage proposed.  Therefore,  if  there  is  any  way  to  avoid  that,  I  should  think  it  best 
in  the  interest  of  our  people  to  suggest  on  the  face  of  the  Constitution  that  discrimi- 
nation may  be  made  against  foreign  corporations  in  terms  which  may  be  considered  to 
be  expressive  of  an  exceedingly  hostile  sentiment,  and  would  J)e  to  my  mind  very  dan- 
gerous and  hurtful,  and  unless  there  is  some  absolute  reason  for  thinking  you  have 
run  upon  some  difficulty  in  the  first  part  of  your  section  which  it  is  necessary  to  re- 
lieve, I  should  greatly  prefer  and  think  it  much  wiser  to  have  the  first  part  of  the 
section  remain  unchanged. 

Mr.  Braxton:  I  desire  to  ask  my  friend  in  that  connection  if  he  has  any  doubt 
in  his  mind  that  the  Legislature  has  now  the  right  to  discriminate? 

Mr.  Thorn:  None  whatever;  but  my  position  is  this:  There  are  a  great  many 
powers  that  exist  in  a  State,  and  must  exist  in  a  State,  and  yet  to  flaunt  them  unneces- 
sarily in  the  eyes  of  the  public  will  suggest  a  sentiment  on  the  part  of  oun  people 
which  might  be  very  hurtful  to  them,  and  put  on  the  face  of  our  Constitution  a  sug- 
gestion of  a  purpose  or  a  policy  which  might  mean  discrimination  against  foreigners 
doing  business  in  the  State,  although  the  power  exists  to  discriminate,  would  be  in 
my  mind  exceedingly  unwise.  I  want  to  avoid  the  expression  of  that  sentiment,  if 
possible;  and  unless  this  Convention  is  assured  that  some  difficulty  exists,  which  the 
chairman  does  not  think  exists,  and  which  I  do  not  think  exists.  I  believe  it  would  be 
hurtful  to  try  to  clarify  the  language  of  the  first  part  of  the  section  by  putting  upon 
the  face  of  our  Constitution  the  declaration,  as  it  might  be  construed,  of  a  purpose 
hostile  to  foreign  corporations  doing  business  in  the  State. 

I  hope,  therefore,  that  unless  there  is  some  very  good  reason  for  adding  those 
words  "without  discriminating  against  them"  in  line  9,  the  whole  idea  of  the  amend- 
ment will  be  abandoned. 

Mr.  Braxton:  Mr.  President,  I  can  simrply  say,  in  reply  to  my  friend's  suggestion, 
that  I  hope  he  and  the  Convention  will  always  bear  in  mind  the  difference  between 
discriminating  against  foreigners  and  discriminating  against  foreign  corporations,  be- 
cause as  I  stated  a  little  while  ago,  a  foreign  corporation  may  very  well  consist  en- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OE  VIRGIXIA.  2819 

tirely  of  domestic  men  and  domestic  capital,  and  foreigners  doing  business  in  the 
State  may  very  well  do  business  under  a  domestic  charter,  and  that  discriminating 
against  foreign  corporations  is  by  no  means  and  in  no  sense  discrimination  against 
foreign  capital  or  foreign  people. 

I  think  the  right  of  the  Legislature  to  discriminate  against  foreign  corporations 
iis  a  matter  so  plain  and  so  well  known  to  everybody  that  we  would  not  be  making 
any  suggestions  or  scaring  them  away  by  simply  saying  that  we  do  not  by  this  lan- 
guage intend  to  change  the  law  in  that  respect  as  it  exists  to-day. 

In  regard  to  the  other  matter  I  will  say  to  my  friend,  as  I  said  just  now,  that  per- 
sonally I  do  not  think  the  language  in  question  means  what  some  gentlemen  seem  to 
fear  it  might  be  construed  as  meaning.  The  language  as  it  now  stands  is  that  "for- 
eign corporations  shall  not  be  relieved  from  compliance  with  any  of  the  requirements 
made  of  similar  domestic  corporations  by  the  Constitution  and  laws  of  this  State, 
where  the  same  can  be  made  applicable  to  such  foreign  corporations."  My  own  idea 
and  the  idea  of  the  committee  was  that  the  language  should  not  mean  where  it  was 
conceivable  or  possible  to  apply  to  it,  regardless  of  consequences,  but  where  the 
application  could  be  made  without  discrimination. 

The  only  purpose  and  object  of  this  amendment  is  to  make  clear  a  matter  which 
some  gentlemen  think  is  obscure.  I  am  perfectly  willing  to  leave  that  to  the  judgment 
of  the  Convention,  without  pressing  it  upon  them.  If  the  Convention  thinks  that  the 
language  as  now  used  is  obscure,  and  does  mean  what  it  was  intended  to  mean,  as 
I  have  explained  it,  I  will  not  press  the  amendment,  but  if  it  is  thought  that  it  can 
by  possibility  be  intended  as  a  hard  and  fast  line,  compelling  the  application  of  for- 
eign corporations  of  every  provision  applicable  to  domestic  corporations,  and  regard- 
less of  the  effect  it  may  have,  then  I  think  it  would  be  better  to  insert  the  provision 
we  offer,  and  I  do  not  think  this  provision  would  be  obnoxious  to  the  suggestion  made 
by  my  friend,  that  it  would  be  held  out  as  an  intimation  of  hostility.  It  simply  says 
that  nothing  herein  contained  shall  be  regarded  as  a  restriction  upon  the  power  which 
the  Legislature  now  has,  and  which  everybody  knows  it  has,  of  making  any  discrimina- 
tion against  a  foreign  corporation  it  chooses,  without  undertaking  to  suggest  that  it 
shall  make  that  discrimination. 

Mr.  Thom:  "Would  your  committee  not  be  willing  to  insert  in  line  8,  the  word 
"reasonably"  after  the  w^ord  "can"  so  as  to  read  "where  the  same  can  reasonably  be 
made  applicable  to  such  foreign  corporation"? 

Mr.  Braxton:  I  will  say  to  my  friend  that  those  on  the  committee  with  whom  I 
■^ave  been  able  to  confer  say  they  prefer  the  language  suggested  here  in  the  amend- 
ment, as  it  would  make  it  plainer.  I  am  sorry  I  cannot  agree  with  the  gentleman.  I 
will  have  to  leave  that  to  the  Convention.    I  do  not  know  what  they  will  think  of  it. 

The  President:    The  question  is  on  agreeing  to  the  amendment. 

The  amendment  was  agreed  to. 

Mr.  Braxton:  I  ask  that  the  further  consideration  of  this  question  be  passed  by 
until  we  can  take  up  an  amendment  offered  by  the  gentleman  from  Wise  (Mr.  Ayers), 
and  that  w^e  go  on  considering  Section  13. 

~  The  President:  That  will  be  taken  as  the  sense  of  the  Convention  unless  objec- 
tion be  made.    The  Secretary  will  read  Section  13. 

Sections  13,  14,  15  and  16  were  read  and  adopted. 

On  motion  of  Mr.  Braxton,  Section  17  was  temporarily  passed  by. 

Section  18  was  read  and  adopted. 

The  consideration  of  Section  19  was  temporarily  postponed. 
Section  17  was  then  read  and  adopted. 

Mr.  Braxton:  On  behalf  of  the  committee,  proposed  to  amend  by  inserting  at 
the  beginning  of  the  section,  these  words: 

The  exclusive  right  to  build  or  operate  railroads  parallel  to  its  own  or  any  other 
line  of  railroad  shall  not  be  hereafter  granted  to  any  company. 


2820  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


In  explanation  of  the  amendment,  he  said:  I  will  endeavor  to  explain  to  the  Con- 
vention why  it  was  we  offered  the  amendment  we  did  offer.  While  it  would  seem  that 
the  idea  of  the  purpose  of  this  section  is  a  very  simple  one,  and  one  which  could  be 
grasped  very  readily,  when  we  came  to  put  it  into  language  we  found  a  good  deal  of 
embarrassment,  and  it  was  almost  a  puzzle  to  work  it  out.  As  the  language  now  stands 
it  is  this: 

The  free  right  to  build  and  operate  railroads,  parallel  to  any  other  railroads  pre- 
viously  established,  shall  never  be  abridged  nor  denied  to  any  railroad  company  here- 
after chartered  by  this  State. 

It  has  been  suggested  by  some  of  the  members  of  the  committee,  since  we  have 
been  considering  this  matter,  however,  that  that  might  have  the  effect  of  enabling  a 
railroad  corporation  on  its  own  charter  to  build  parallel  roads  to  any  other  road,  al- 
though it  is  in  an  entirely  different  part  of  the  State;  so  that  if  we  charter  a  railroad 
to  run  from  Big  Stone  Gap  to  Bristol,  that  railroad  would  have  the  right  by  that  same 
charter  to  parallel  the  Southern  Railroad  from  Richmond  to*  West  Point.  Of  course, 
that  was  not  our  purpose,  and  in  order  to  negative  that  we  propose  to  strike  out  the 
words  "hereafter  chartered,"  which  we  thought  were  unnecessary  in  view  of  this 
amendment,  and  insert  "but  no  such  company  shall  build  or  operate  any  line  of  rail- 
road not  specified  in  its  charter";  so  that  while  it  might  get  a  charter  to  parallel 
another  line  of  road,  it  should  not  have  the  right  to  parallel  it  unless  the  charter  speci- 
fied it,  and  it  could  not  get  a  charter  to  run  a  road  from  A  to  B,  and  on  that  same  char- 
ter parallel  another  road  from  C  to  D.  If  the  amendment  is  adopted,  the  section  will 
read  in  this  way: 

The  free  right  to  build  and  operate  railroads,  parallel  to  any  other  railroads  pre- 
viously established,  shall  never  be  abridged  nor  denied  to  any  railroad  company,  but  no 
such  company  shall  build  or  operate  any  line  of  railroad  not  specified  in  its  charter. 

Mr.  Meredith:    Could  you  not  leave  in  the  words  "chartered  by  this  State"? 
Mr.  Thorn:    Would  you  put  in  the  words  "the  main  line  of  which  is  not  specified 
in  its  charter"? 

Mr.  Braxton:  If  that  amendment  is  adopted  it  will  necessitate  the  amendment 
which  I  offered  a  few  minutes  ago,  because  if  a  railroad  could  not  build  a  parallel 
line  to  som,e  other  road  unless  that  was  specified  in  its  charter,  it  occurred  to  us  the 
Legislature  might,  by  general  law,  provide  that  no  railroad  charter  should  be  issued 
to  run  from  a  certain  specified  point,  from  A  to  B,  and  therefore,  as  no  charter  could 
be  gotten  for  it,  and  no  road  could  be  built  without  a  charter,  the  residue  of  the  sec- 
tion would  be  nugatory,  and  in  order  to  exclude  the  possibility  of  both  of  those  things, 
we  offered  the  amendment  which  I  proposed  a  few  moments  ago,  to  be  followed  by 
one  which  I  just  read,  so  that  as  amended  the  entire  section  would  read  as  follows: 

The  exclusive  right  to  build  or  operate  railroads  parallel  to  its  own  or  any  other 
line  of  railroad,  shall  not  be  hereafter  granted  to  any  company.  The  free  right  to  build 
and  operate  railroads  parallel  to  other  railroads  previously  established,  shall  never  be 
abridged,  nor  denied,  to  any  railroad  company  chartered  by  this  State;  but  no  such 
company  shall  build  or  operate  any  line  of  railroad  not  specified  in  its  charter. 

We  thought  if  those  two  amendments  were  adopted  it  would  prevent  the  possi- 
bility of  the  section  being  evaded  or  its  purpose  diverted  in  either  of  the  ways  I  have 
suggested. 

Mr.  R.  Walton  Moore:  In  order  to  reach  the  purpose  you  have  in  view,  would 
not  this  be  a  simpler  course — merely  to  provide  that  the  general  laws  which  are  con- 
templated by  Section  2  of  this  ordinance  shall  not  be  framed  in  such  a  way  as  to  pre- 
\ent  the  parallelling  of  railroads. 

Mr,  Braxton:    I  would  say  to  my  friend  that  I  am  not  prepared  at  this  moment  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VERGIXIA. 


2S21 


study  through  the  language  he  suggests.  It  may  he  thai  it  ^rould  meet  the  case;  hut 
inasmuch  as  vre  have  thought  through,  as  vre  believe,  the  language  we  propose,  and 
as  ve  think  it  vill  meet  the  case  we  would  prefer  using  that  to  adopting  a  new  form  of 
expression  which  we  have  not  had  a  chance  to  reflect  upon. 

The  President:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Augusta  (Mr.  Braxton). 

The  amendment  vras  agreed  to. 

3Ir.  Braxton:  I  ask  that  the  word  '"'Hereafter"  in  lines  3  and  4,  be  stricken  otit, 
snd  that  after  the  word  '"'State"  in  line  4,  the  language  I  read  a  few  moments  since, 
be  inserted:  "Btit  no  such  company  shall  build  or  operate  any  line  of  railroad  not 
specified  in  its  charter." 

Mr.  Robertson:  I  desire  to  offer  a  resolution  striking  out  that  whole  section.  I 
do  not  think  any  argument  along  the  line  that  has  already  been  made  by  the  gentle- 
man from  Xorfolk  will  do  any  good  in  this  Convention,  btit  I  do  consider  this  an  ex- 
tremely important  matter. 

Green:    Has  not  the  Legislature  T^•ithout  any  provision  of  this  sort,  a  right  to 
parallel  or  not  parallel  other  roads,  as  it  sees  fit. 

Mr.  Robertson:  In  reply  to  what  the  gentleman  from  Danville  has  asked  me,  I 
think  there  can  be  no  question  that  the  power  of  the  Legislature  is  complete  and  full 
to  either  parallel  or  not  parallel  lines  of  railroad  in  this  State.  The  object  of  this  pro- 
vision, however,  like  the  object  of  this  entire  report,  is  to  tie  the  hands  of  the  Legis- 
lature, and  say  that  hereafter,  whenever  a  company  is  organized,  whose  object  it  is  to 
parallel  any  of  the  lines  of  railroad  we  have  in  the  State,  or  the  Legislature, 
or  whoever  grants  these  charters  will  be  absoltitely  prevented  from  refusing 
to  grant  a  charter  of  that  kind.  That  is  the  effect  of  it,  that  this  committee  of  eleven, 
who  have  absolute  control  of  a  majority  of  this  Convention  will  say  to  the  people  of 
Virginia  that  hereafter  the  representatives  of  the  people  in  Legislature  assembled  can- 
not say  to  any  company  that  comes  into  the  State  and  asks  for  a  charter  parallelling 
any  of  the  trunk  lines  of  railway  in  the  State  "We  refuse  to  grant  you  that  charter," 
whatever  may  be  the  effect  upon  the  public  interests  of  the  Commonwealth. 

Are  we  so  wise,  do  we  know  so  much  about  the  future,  about  what  the  effect  of 
that  may  be,  that  we  are  going  to  put  a  permanent  provision  in  our  Constitution  saying 
tliat  no  discretion  can  be  exercised  in  reference  to  that  matter?  I  respectfully  desire 
to  call  to  the  attention  of  the  Convention  the  idea  that  was  suggested  in  the  very  able 
speech  of  the  gentleman  from  Xorfolk  (Mr.  Thorn)  when  he  was  speaking  on  general 
principles  with  reference  to  this  report.  What  he  said  about  that  certainly  struck  me 
■^'ith  a  great  degree  of  force — that  too  much  competition  may  sometimes  defeat  the 
very  object  which  people  have  who  try  to  bring  about  competition;  that  bringing  into 
effect  that  kind  of  competition  against  a  railroad  line  in  this  Sfate,  forcing  the  Legis- 
lature or  whoever  grants  these  charters  to  grant  charters  to  people  to  parallel  the 
lines  of  the  road  may,  in  the  future,  become  absolutely  injurious  to  the  interests  of 
the  people  of  the  Commonwealth;  and  how  will  that  happen?  It  will  happen  on  the 
principles  that  where  competition  is  fierce  and  is  carried  to  too  great  an  extreme,  these 
companies  do  not  have  the  efficiency  and  do  not  have  the  safeguards  that  they  would 
otherwise  have. 

If  you  injure  one  of  these  railroad  companies  to  such  an  extent  that  it  cannot  keep 
up  its  roadbed,  for  instance,  it  cannot  supply  the  kind  of  engines  and  cars  to  haul  the 
passengers  and  the  products  in  Virginia,  and  if  the  roadbed  gets  in  such  a  condition 
that  they  cannot  keep  it  safe  for  the  use  of  the  ptiblic.  you  can  very  readily  see  how 
that  may  seriously  injure  the  public. 

I  am  not  going  to  appeal  to  the  Convention  for  any  sort  of  justice  towards  these 
corporations.  I  have  seen  here  from  day  to  day  that  the  majority  of  the  Convention 
is  influenced  by  a  spirit  of  hostility  to  these  people,  who  have  certainly,  in  my  opinion, 
never  done  harm  in  the  Commonwealth,  any  more  than  any  other  business  people  have. 


2822  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

but  on  the  contrary,  have  built  up  the  Commonwealth  and  developed  it  to  the  extent 
that  it  has  been  developed;  but  I  will  not  appeal  to  any  sort  of  feeling  of  justice  to 
them.  I  do  appeal  to  you,  however,  in  the  interest  of  the  people  of  the  Commonwealth. 
Do  not  tie  the  hands  of  the  Legislature  so  that  even  though  they  may  see  plainly  that 
the  paralleling  of  one  line  of  road  by  another  may  injure  the  interests  of  the  people 
of  the  Commonwealth,  yet  they  will  be  precluded  from  denying  it,  under  this  section. 

I  am  not  making  any  charge  against  individuals  here.  I  am  not  making  any 
cjiarge  against  their  known  feelings  and  motives,  but  I  say  that  men  have  been 
wrought  up  in  this  Convention  to  such  a  feeling  of  hostilty  to  these  corporations  that 
they  sometimes  forget  the  interests  of  the  people  of  the  Commonwealth.  You  cannot 
injure  these  people  to  any  great  extent  without  injuring  everybody.  You  ought  to 
look  at  both  sides  of  this  question  and  not  put  into  our  Constitution  something  that  we 
have  never  dreamed  of  having  in  it  before,  that  wherever  one  company  comes  and 
wants  to  parallel  a  line  of  road,  it  shall  do  so,  if  it  complies  with  the  law  in  every 
respect,  and  that  there  can  be  no  power  in  the  Commonwealth  to  prevent  that. 

I  do  not  care  to  say  anything  further  on  the  subject.  My  friend  from  Norfolk 
pointed  out  the  danger  of  that  so  plainly  and  fully  in  his  speech  that  I  do  not  think 
it  is  necessary  to  do  more  than  remind  you  of  the  general  line  ol  thought  he  sug- 
gested. It  may  be  said  that  my  opposition  to  putting  this  provision  here  is  due  to 
my  general  opposition  to  putting  any  of  this  article  in  the  Constitution.  I  respectfully 
submit  that  is  not  true,  that  this  has  nothing  to  do  with  respect  to  a  commission.  This 
ir^  an  independent  principle.  It  has  nothing  to  do  with  the  general  idea  of  this  report 
at  all.  You  can  have  your  railroad  commission  and  give  it  all  of  these  powers  which 
you  have  given  it,  and  yet  you  can  vote  against  this  part  of  the  article  without  affect- 
ing one  iota  the  principles  you  are  claiming  and  contending  for  here. 

It  does  seem  to  me  the  Convention  ought  to  pause  and  consider  this  matter  care- 
fully before  it  votes  to  put  something  here  that  in  its  nature  may  do  a  great  deal 
of  harm  to  the  people  of  the  Commonwealth. 

Mr,  Braxton:  Mr.  President,  the  gentlema,n  from  Norfolk  (Mr.  Thorn)  very  kindly 
made  a  suggestion  to  insert  a  word  in  the  amendment  which  I  last  offered,  but  I  regret 
to  say  I  caunot  agree  with  him  as  to  the  wisdom  or  the  necessity  of  inserting  it.  I 
do  not  think  the  language  as  now  used  is  objectionable. 

Mr.  Thom:  Mr.  T'resident,  I  will  explain  my  purpose  in  making  the  suggestion. 
The  motion  of  the  £entleman  from  Augusta  is  to  add,  in  line  4,  the  following  lan- 
guage: 

But  no  such  company  shall  build  or  operate  any  line  of  railroad  not  specified  in  its 
character. 

That  language  is  broad  enough  to  require  a  railroad  company  to  foresee  at  the  time 
it  gets  its  charter  every  branch  line  that  thereafter  become  convenient  either  to 
the  public  or  to  itself.  The  present  statutory  law  of  the  State  permits  a  railroad  com- 
pany to  build  under  any  charter  a  branch  not  exceeding  twenty  miles  at  any  point 
that  it  may  see  fit.  It  is  very  essential  that  that  right  should  exist.  I  will  take  the 
coal  country  as  an  illustration.  A  company  might  be  chartered  to  penetrate  the  coal 
region  of  the  State.  At  the  moment  it  could  not  be  foreseen  exactly  every  branch  that 
it  might  become  necessary  for  it  to  construct  in  connection  with  its  work,  and,  in  fact, 
in  practical  experience  of  railroad  matters,  railroads  are  constantly  building  these 
branches  not  exceeding  twenty  miles  in  length,  which  at  first  they  never  had  any  idea 
there  would  be  a  public  demand  for  them  to  build. 

Now,  it  cannot  be  necessary  every  time  a  railroad  wants  to  build  a  branch  of 
twenty  miles,  for  it  to  get  out  a  separate  charter,  to  have  a  separate  corporate  exist- 
ence, with  different  directors,  or  the  same  directors,  with  different  records,  with  dif- 
ferent reports,  and  with  different  accountabilities.    All  that  can  be  reasonably  re- 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


2823 


quired  of  it  is  that  the  company,  when  getting  out  its  charter,  shall  specify  its  main 
line  of  road,  giving  it  the  same  right  it  has  now,  to  build  under  such  charters  as  are 
thus  obtained  the  branch  lines  that  they  have  under  similar  legislation. 

Mr.  Kendall:  Does  not  the  amendment  of  the  chairman  have  reference  to  parallel 
lines,  not  to  branch  lines. 

Mr.  Thom:    A  branch  line  might  parallel. 

Mr.  Braxton:  I  will  state  to  my  friend  that  it  has  reference  to  all  lines,  parallel 
and  otherwise: 

Mr.  Thom:   -But  a  branch  line  might  parallel. 

The  question  is  whether  it  is  necessary,  under  this  new  constitutional  policy,  to 
require  these  companies  to  foresee  every  branch  that  may  be  necessary  in  the  devel- 
opment of  their  business,  and  more  than  it  is  now  necessary,  when  you  go  to  the  Gen- 
eral Assembly  and  get  a  right  to  build  a  road  from  Richmond  to  Alexandria,  to  specify 
all  the  branch  lines  it  may  be  found  in  the  future  a  necessity  to  construct. 

I  therefore  suggest  that  all  that  should  be  necessary  for  such  a  company  to  specify 
ill  its  application  for  a  charter  would  be  its  main  line  of  road,  leaving  it  with  the 
same  rights  as  the  branch  lines  that  it  has  under  the  present  statutory  policy  of  the 
State.  Therefore  I  move  to  amend  the  language  suggested  by  my  friend  by  insert- 
ing the  word  "main"  before  the  word  "line,"  so  that  it  will  read:  "But  no  such  com- 
pany shall  build  or  operate  any  main  line  of  railroad  not  specified  in  its  charter." 

Mr.  Braxton:  Mr.  President,  the  first  objection  I  have  to  the  amendment  as 
offered  by  my  friend  from  Norfolk  is  that  the  words  "main  line"  are  of  such  vague 
and  uncertain  import  that  no  man  can  say  what  they  include  and  what  they  exclude. 
The  Convention  will  remember  that  at  as  early  a  stage  of  these  proceedings,  when  in 
Committee  of  the  Whole  we  were  considering  another  part  of  this  article,  it  was  gravely 
contended  and  insisted  upon  this  floor,  in  the  matter  of  freight  rates,  that  the  South- 
ern Railway  from  Danville  to  West  Point  was  a  branch  line,  nearly  170  miles  long, 
and  that  the  rates  on  that  line  could  not  be  properly  compared  with  the  rates  on  a 
main  line,  because  that  was  a  branch  line.  I  mention  that  merely  to  show  the  Conven- 
tion that  there  is  no  way  of  telling  what  is  a  main  line  and  what  is  a  branch  line,  and 
if  a  branch  line,  as  was  contended  in  that  case,  can  be  175  miles  long,  it  can  be  400 
miles  long,  and  so  we  would  absolutely  destroy  the  amendment,  if  it  is  intended  to 
have  any  effect,  by  limiting  it  to  main  lines  when  the  branch  line  may  be  as  long  as  J 
have  indicated. 

I  would  suggest,  further,  Mr.  President,  the  difficulties  suggested  by  my  friend  from 
Norfolk  do  not  in  fact  exist.  He  is  mistaken  in  his  construction  of  the  effect  of  this 
article.  I  take  it,  when  you  say  "you  shall  not  build  a  line  except  that  specified  in 
the  charter,"  that  does  not  mean  you  shall  specify  every  siding  in  the  charter,  nor 
that  you  shall  specify  every  small  branch  of  three  or  four  miles  long,  so  short  thafc 
it  practically  consists  of  only  a  sprig  or  branch  of  one  other  line,  but  I  am  reasonably 
certain  that,  for  small  branches  of  five  or  ten  miles  in  length,  a  specification  of  the 
main  line  of  which  they  were  branches  would  be  broad  enough  to  cover  any  such 
branch  as  that,  but  would  not  cover  any  such  branch  as  one  150  or  175  miles  long. 

I  will  go  further,  though,  Mr.  President,  and  call  the  attention  of  the  Convention, 
and  also  that  of  my  friend,  to  a  grave  error  that  he  makes  in  the  construction  of  this 
statute.  He  seems  to  think,  if  I  caught  his  argument  correctly,  that,  as  to  those 
branches  not  included  in  the  general  line,  whether  it  be  a  five  mile  or  a  fifty  mile 
branch,  it  would  be  necessary  to  get  out  another  charter  and  organize  another  com- 
pany,  I  beg  to  call  his  attention  to  the  fact  that  that  is  not  true.  It  would  simply 
require  an  amendment  of  the  charter  already  existing,  if  necessary,  to  say  that  they 
could  build  a  branch  from  A  station  to  B. 

Now,  Mr.  President  and  gentlemen  of  the  Convention,  I  beg  you  to  bear  in  mind 
that  the  attaining  of  charters  and  the  amending  of  charters  under  this  Constitution 
will  be  a  very  different  thing  from  what  it  was  before.    It  would  be,  under  the  state 


2824  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIEGINIA. 

of  affairs  which  has  heretofore  existed  and  which  exists  to-day,  a  very  unwise  thing, 
and  a  great  hardship  on  the  roads,  to  require  them  to  get  an  amendment  of  their 
charter  to  build  a  branch  line,  because  such  an  amendment  could  only  be  obtained 
by  act  of  the  Legislature,  and,  in  the  first  place,  they  might  have  to  wait  two  years 
to  accomplish  it,  and  in  the  second  place,  when  they  got  there,  besides  the  expense  of 
the  lobby,  they  might  be  met  with  the  objection  and  the  fight  of  some  other  company 
that  did  not  want  them  to  get  it,  and  it  would  be  a  matter  of  uncertainty.  So  that 
as  the  law  stands  now,  for  a  railroad  company  to  amend  its  charter,  it  involves  delay, 
expense  and  uncertainty;  but  under  the  provisions  of  this  article,  there  is  neither 
delay,  expense  nor  uncertainty,  but  such  amendment,  if  it  be  necessary  to  obtain  an 
amendment,  to  indicate  the  other  line,  can  be  obtained  in  two  hours  and  a  half  for 
probably  five  or  ten  dollars,  or  whatever  the  Legislature  chooses  to  charge  for  such 
a  small  thing,  and  with  the  absolute  certainty  that  there  is  a  possibility  of  anybody, 
corporation  commission  or  anybody  else  gainsaying  your  getting  it. 

Therefore,  Mr.  President,  and  gentlemen  of  the  Convention,  to  sum  up,  I  will  say 
in  the  first  place,  the  use  of  the  words  "main  line"  is  uncertain.  Nobody  knows  what 
they  mean,  and  it  would  involve  a  definition.  In  the  second  place,  it  is  probable  the 
courts,  will  construe  the  language  now  used  as  covering  a  small  line  of  three,  four,  or 
five  miles.  In  the  third  place,  if  they  did  not  do  so,  all  that  the  corporation  has  to 
do  is  to  get  an  amendment  to  its  charter  specifying  this  main  line,  which  they  can 
do  at  practically  no  expense,  with  no  delay  and  with  absolute  certainty.  So  that  every 
railroad  charter  will  show  on  its  face  where  that  company  has  a  right  to  build  its 
road,  and  that  will  be  the  end  of  it,  I  think,  therefore  the  difliculties  suggested  by 
my  friend  do  not,  in  fact,  exist. 

One  word  more.  My  friend  refers  to  the  building  of  these  branch  lines  as  if  it 
was  almost  a  daily  occurrence.  I  venture  to  say  there  are  not  twenty  branch  lines 
in  the  State  of  Virginia,  after  fifty  years  of  railroad  building.  It  is  the  rarest  thing 
that  they  are  built,  and  when  they  are  built,  the  provisions  now  in  here  will  not  involve 
a  delay  of  two  hours  and  a  half. 

I  ask,  therefore,  that  the  Convention  reject  the  amendment. 

I  think,  for  these  reasons,  it  is  unnecessary  to  make  the  insertion,  and  that  by  put- 
ting in  the  word  "main"  you  would  inject  an  element  of  absolute  uncertainty  by  using 
a  word  of  vague  and  unsettled  import,  and  practically  destroy  the  amendment  as  it 
now  exist. 

Mr.  Thom:  Mr.  President,  my  friend  is  mistaken  about  there  being  so  few  branch 
lines  in  the  State  of  Virginia.  They  are  of  constant  occurrence.  I  can  name  a  great 
many  myself;  and  nearly  every  branch  line  that  is  suggested  is  not  suggested  by  the 
railroad  company,  but  by  som^e  industry  that  desires  that  it  shall  be  established  for 
the  purpose  of  development. 

There  is  nothing  in  the  motion  I  have  made  to  indicate  that  when  a  siding  is 
placed,  there  is  required,  even  under  the  suggestion  of  my  friend,  additional  legislation: 
but  he  admits  that  the  result  of  the  provision  as  suggested  by  him  is  to  cut  off  rail- 
road companies  from  the  right  they  have  had  from  time  immemorial  in  this  respect,  to 
build  branches  not  exceeding  twenty  miles  in  length,  and  those  branches  are  protected 
by  a  general  statute  of  the  State.  Nor  is  there  any  difficulty  in  defining  what  is 
the  difference  between  a  main  line  and  a  branch  line.  There  is  a  statutory  policy 
of  the  State,  well  defined  and  well  understood,  on  that  point. 

Mr.  Braxton:  May  I  ask  my  friend  what  the  definition  of  a  main  line  is  under 
which  the  line  from  Danville  to  Richmond  would  not  come? 

Mr.  Thom:  There  would  be  none  whatever,  and  it  never  was  called  a  branch  line 
except  in  the  loosest  kind  of  talk  upon  this  floor.  That  was  the  short  expression  for 
"subsidiary  line."  It  would  not  be  a  branch  line  under  any  definition  ever  suggested 
or  ever  understood  under  any  railroad  policy  on  the  face  of  the  earth.  The  ques- 
tion under  debate  then  was  the  difference  in  rates  on  the  main  line  of  railroads,  on 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIPtGIXIA.  28.25 

that  part  of  the  road  that  v/as  carrying  the  densest  portion  of  the  railroad  traffic; 
and  it  was  stated  that  where  railroad  commissions  existed  a  different  rate  was  per> 
mitted  on  the  main  line  of  railroad  from  that  on  a  subsidiary  line.  When  they  were 
called  branch  lines,  it  was  not  with  the  idea  of  making  a  definition  or  a  distinction  be- 
tween main  and  branch  lines,  but  between  the  most  important  and  the  less  important 
lines  of  railroad;  and  my  purpose  in  asking  that  the  word  "main"  be  inserted  before 
the  word  "line"  is  to  facilitate  the  establishment  of  these  institutions  in  the  State  the 
effect  of  which  is  to  buy  people's  property,  to  develop  people's  property,  and  to  give 
employment  to  the  labor  of  the  State,  so  that  when  a  railroad  has  once  gotten  out  its 
charter  for  its  main  line  of  railroad,  it  can  listen  to  Mr.^  Jones  or  Mr.  Brown,  or  any- 
body else  who  owns  a  coal  mine,  an  agricultural  interest  or  any  other  matter  he  de- 
sires to  be  developed,  and  can  give  him  transportation  facilities,  provided  the  branch 
required  is  not  over  twenty  miles  in  length,  and  I  submit  there  is  nothing  unreasonable 
in  it. 

Mr.  Braxton:  Mr.  President,  I  just  want  to  say  a  word.  I  understand  that  last 
year  there  were  built  in  this  State,  branch  lines  and  main  lines  all  combined,  about 
twenty  miles  of  railroad.  If  I  am  not  mistaken,  the  Chesapeake  and  Ohio  road  in 
thirty  years  has  built  two  branch  lines,  as  far  I  can  recall,  or  may  be  three;  and  I 
think  that  is  about  on  a  par  with  the  number  of  branch  lines  built  by  other  roads. 
Some  of  them  have  never,  in  their  existence,  built  any  branch  lines. 

Mr.  Thorn:  I  will  ask  my  friend  if  he  is  acquainted  with  these  roads  that  run 
through  lumber  district  and  the  constant  necessity  of  building  branch  lines  to  develop 
forests,  lying  ten  to  fifteen  miles  from  the  main  line? 

Mr.  Braxton:  I  can  simply  say  that  so  far  as  I  know  there  are  not  twenty  branch  . 
lines  in  the  State  of  Virginia  after  fifty  years. 

But,  Mr.  President,  and  gentlemen  of  the  Convention,  if  there  vvas  a  branch  line 
built  every  day  in  the  year,  the  provisions  here  would  not  delay  It  five  seconds.  All 
the  railroad  has  to  do  when  it  gets  its  charter,  if  it  has  in  mind  any  branch  lines,  is  to 
specify  them,  ad  infinitum,  and  if  it  does  not  have  them  in  mind,  whenever  it  does 
want  to  build  a  branch  line,  it  can  obtain  an  amendment  to  build  that  line,  as  I  have 
explained  to  you,  without  the  expenditure  of  more  than  two  hours  of  time,  with  abso- 
lute certainty,  without  the  slightest  danger  of  impossibility  of  getting  it,  at  a  cost  of 
possibly  $5;  and  that  is  only  done  in  order  that  the  State  can  keep  a  record  of  where 
the  lines  are  that  are  to  be  built,  so  that  you  cannot  charter  a  road  to  run  from  Bristo^ 
to  Abingdon  and  undertake  under  that  to  build  a  road  on  the  Peninsula  or  in  the  eastern 
part  of  the  State. 

I  think  the  argum^ent  of  the  gentlem.an  shows  for  itself  that  there  is  no  restriction 
here,  no  requirement  in  the  world,  except  that  when  a  railroad  wants  to  build  its  line 
it  shall  say  what  line  it  wants  to  build,  and  if  it  afterwards  wants  to  build  any  other 
line,  it  shall  say  so,  that  is  all.  No  man  can  gainsay  that.  They  can  get  charters  every 
day  if  they  choose,  and  amendments  of  charters.  It  will  not  involve  getting  a  new 
charter,  but  simply  an  amendment,  specifying  that,  this  charter,  is  amended  so  as  to 
enable  them  to  build  a  branch  line  from  A  to  B. 

I  hope  the  Convention  v/ill  vote  down  the  amendment,  as  the  effect  of  it.  if  it 
should  be  adopted,  would  be  to  destroy  the  amendment  proposed  by  the  committee. 

The  President:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Norfolk  city  (Mr.  Thom)  to  the  amendment  proposed  by  the  gentle- 
man from  Augusta,  the  chairman  of  the  committee. 

The  question  having  been  taken,  the  result  was  announced — ayes,  15;  noes,  41. 

"The  amencment  to  the  amendment  was  rejected. 

The  President:    The  question  recurs  upon  the  amendment  offered  by  the  gentle- 
man from  Augusta,  chairman  of  the  committee. 
The  amendment  was  agreed  to. 
ITS — Const.  Deb. 


2826  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  O'Flaherty:  Mr.  President,  before  the  substitute  is  put,  I  wish  to  move  to 
strike  out  the  word  "free"  in  line  one,  Section  17 — "The  free  right  to  build  and  operate 
railroads."  I  do  not  think  that  word  "free"  ought  to  be  in  there,  becaiTse  it  is  ambig- 
uous. If  they  have  the  right  to  build  the  railroad,  the  right  cannot  be  more  than  free, 
and  the  question  might  arise  as  to  whether  the  Legislature  could  impose  any  burden 
upon  them  at  all.    Therefore  I  move  to  strike  out  that  word  "free." 

The  President:  That  will  be  taken  as  the  sense  of  the  Convention,  unless  objec- 
tion be  made. 

The  question  recurs  on  the  motion  of  the  gentleman  from  Roanoke  City  (Mr.  Rob- 
ertson) to  strike  out  the  entire  section. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Roanoke 
city  (Mr.  Robertson)  to  strike  out  Section  17. 

The  motion  was  rejected. 

Mr.  Braxton:    I  move  that  Section  17  as  amended,  be  adopted. 
On  motion  of  Mr.  Braxton  the  Convention  adjourned  until  to-morrow,  Tuesday, 
March  4,  1902,  at  10  o'clock  A.  M. 

TUESDAY,  March  4,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  I.  M,  Mercer,  of  Richmond. 

CORPORATIONS. 

The  President:  The  unfinished  business  before  the  Convention  is  the  report  of 
the  Committee  on  Corporations. 

Mr.  Braxt  'n :  I  suggest  that  we  proceed  with  the  consideration  of  the  amend- 
ment offered  ly  the  gentleman  from  Wise  (Mr.  Ayers)  to  Section  5,  and  I  will  ask 
the  Secretary  to  read  the  amendment. 

After  the  word  "effect"  in  line  18  of  Section  12  insert  the  following: 

But  this  section  shall  not  prevent  any  foreign  railroad  company  operating  a  rail- 
road in  this  State  from  building  branch  roads  not  exceeding  twenty  miles  in  length 
from  any  point  or  points  on  its  present  li^ie  as  now  authorized  by  law. 

Mr.  Braxton:  Mr.  President,  I  have  been  considering  as  carefully  as  I  can,  the 
amendment  offered  by  the  gentleman  from  Wise  with  a  view  of  agreeing  to  it  if  I 
coula  see  my  way  clear  to  do  so,  but  the  more  I  reflect  on  it  and  the  more  I  look 
into  it,  the  more  I  am  satisfied  that  it  would  be  an  unwise  provision.  The  building 
of  branch  lines  is  a  thing  that  is  hardly  controlled  by  that  name.  If  you  authorize 
a  railroad  to  build  a  branch  line  twenty  miles  long  I  see  no  reason  to  prevent  their 
adding  another  twenty  miles  to  that,  and  another  twenty  miles  to  that,  and  so  on 
indefinitely,  until  it  can  build  a  road  clear  across  the  State. 

Mr.  Ayers:  Do  you  not  see  my  reason  in  having  it  limited,  as  I  limit  it,  from 
any  point  or  points  on  its  present  line? 

Mr.  Braxton :  I  think  the  effect  of  that  would  be  to  start  from  some  point  or 
points  on  its  present  line,  but  that,  however,  is  not  the  important  ground.  As  I  at- 
tempted to  explain  to  the  Convention  yesterday,  it  is  always  desirable  that  corpora- 
tions doing  business  in  this  State  should  operate  under  State  charters  if  they  can; 
but  where  that  corporation  is  a  public  corporation  the  reasons  for  its  having  a  domestic 
charter  are  very  much  greater.  It  is  hard  enough  to  regulate  and  control  our  domestic 
public  corporations,  and  it  is  doubly  so  if  they  are  foreign  corporations;  and  when 
you  add  to  that  the  fact  that  a  railroad  company  in  building  even  its  branch  line  can 
exercise  the  right  of  eminent  domain,  it  seems  to  me  there  is  every  reason  why  it 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIEGIXIA. 


2827 


should  be  required  to  do  so  under  the  State  charter  only.  This  right  of  eminent 
domain,  as  we  all  know,  is  a  high  prerogative  of  sovereignty,  and  if  it  is  to  be  sur- 
rendered to  a  private  corporation  at  all  it  should  be  surrendered  only  to  a  private 
corporation  of  the  State  itself,  which  it  can  control  absolutely,  as  it  can  alone,  its 
domestic  corporations. 

Mr.  President,  this  is  no  new  idea.  The  fact  is,  as  far  as  we  know,  there  is  not 
a  foot  of  road  in  the  State  of  Virginia  that  was  ever  built  by  foreign  railroad  cor- 
porations except  the  short  line  which  the  gentleman  refers  to,  that  of  the  Louisville 
and  Nashville  road.  Not  one  foot,  as  far  as  I  am  aware,  has  been  built  by  foreign 
corporations,  and  if  I  am  mistaken  in  that  I  am  sure  I  am  not  mistaken  to  any  material 
extent,  if  at  all.  I  find,  so  far  as  I  have  been  able  to  investigate,  that  the  rule  is 
throughout  the  United  States  that  whenever  a  railroad  company  enters  a  State  either 
to  build  a  railroad  or  to  operate  a  railroad,  it  is  required  to  become  a  domestic  cor- 
poration. 

I\Iy  learned  and  able  friend  from  Norfolk  referred  to  Virginia  railroads  operating 
in  the  South,  under  Virginia  charters,  and  spoke  of  the  great  courtesy  and  comity  that 
was  shown  to  us  by  the  Southern  States.  I  have  not,  with  the  time  at  my  disposal, 
been  able  to  investigate  the  law  in  each  of  these  States,  but  I  know  that  in  a  number 
of  them — my  impression  is  that  it  is  in  all  of  them — those  very  corporations  are  re- 
quired to  become  domestic  corporations  when  they  enter  that  State.  In  South  Caro- 
lina and  Mississippi  the  provision  is  in  the  Constitution  of  those  States,  that  whenever 
a  railroad  company  enters  a  State  to  build  or  operate  a  road  it  shall  thereby  become, 
ipso  facto,  a  domestic  corporation.  In  others  that  provision  is  made  by  statute.  In 
others,  again,  it  is  not  provided  that  they  shall  by  the  mere  act  of  coming  in  there 
become  corporations,  but  it  is  provided  that  they  shall  take  out  a  domestic  charter 
and  become  incorporated  under  the  laws  of  that  State.  So  you  will  find  in  the  great 
majority  of  cases,  if  I  am  correctly  informed,  that  interstate  railroads  passing  through 
the  several  States  become  domestic  corporations  in  each  State  through  which  they 
pass,  and  the  great  object  and  purpose  of  that  is  to  prevent  their  hauling  the  citizens 
of  those  States  into  the  United  States  courts  for  matters  which  they  wish  to  litigate. 

In  order  that  the  Convention  may  have  the  benefit  of  some  of  the  authorities  which 
I  have  looked  up  on  this  question,  I  will  take  the  liberty  of  reading  shortly  from  the 
last  edition  of  Cook  on  Corporations,  Section  910,  and  notes: 

An  interstate  consolidated  railroad  corporation  is  a  separate  corporation  in  each 
State,  although  it  has  one  capital  stock,  board  of  directors,  and  name — this  is  now  an 
established  principle  of  law.  The  question  has  been  involved  most  frequently  in  cases 
turning  on  the  jurisdiction  of  the  Federal  courts. 

For  the  purposes  of  jurisdiction  a  distinction  is  made  between  a  corporation  char- 
tered by  two  or  more  States  and  one  that  is  chartered  by  but  one  State,  and  merely 
authorized  by  the  laws  of  other  States  to  do  business  in  them.  Vv'here  it  is  chartered 
by  two  or  more  States,  it  is  considered  a  citizen  of  each  of  the  chartering  States. 

And  there  is  a  long  line  of  authorities: 

A  consolidated  railroad  running  into  two  States  is  a  separate  corporation  in  a 
State,  and,  being  sued  in  one  State,  cannot  remove  the  case  to  the  Federal  court  on  the 
ground  that  it  is  a  citizen  of  the  other  State. 

A  consolidated  corporation  running  into  two  States  is  a  separate  corporation  in 
each  State. 

A  consolidated  company  running  into  two  States  is  a  separate  corporation  in  each 
of  the  States. 

A  consolidated  corporation  running  into  three  States  is  a  separate  domestic  cor- 
poration in  each  of  those  States.  It  may  turn  back  its  corporate  business  in  one  State 
for  all. 

As  regards  the  jurisdiction  of  the  Federal  courts,  an  mterstate  corporation  Is 
treated  as  a  citizen  of  the  State  in  which  the  suit  is  brought  and  into  which  it  runs. 
A  corporation  which  is  created  by  the  joint  act  of  two  or  more  States  is  considered. 


2838  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

to  consist  of  as  many  corporations  as  there  are  States  which  have  joined  in  creating  it. 
The  relation  of  these  constituent  corporations  towards  each  other  is  the  same  as 
though  they  were  different  corporations  having  the  same  name. 

Where  a  corporation  created  in  one  State  is  merely  authorized  by  statute  to  tran- 
sact business  in  others,  it  is  a  citizen  only  of  the  State  which  chartered  it. 

Now,  Mr.  President,  the  question  for  this  Convention  is  this:  Shall  we  do  as  is 
done  in  most  of  the  other  States,  require  these  railroads  operating  in  this  State  either 
to  go  through  the  form  of  becoming  incorporated  here  or  to  provide  that  the  mere 
act  of  extending  their  branches  shall  have  the  effect  of  making  them  domestic  cor- 
porations; or  shall  we  do  as  was  done  in  the  Louisville  and  Nashville  case,  merely 
authorize  a  foreign  corporation,  without  becoming  incorporated  here,  and  without  be- 
coming a  domestic  corporation,  to  exercise  the  right  of  a  railroad  company,  and  par- 
ticularly to  exercise  the  right  of  eminent  domain?  Shall  we  say  that  these  companies, 
which  can  come  here  and  take  a  man's  land  away  from  him,  nolens  volens,  and  exer- 
cise in  this  State  the  absolute  right  of  sovereignty,  can  then  turn  around  and  defy 
the  courts  of  the  very  State  whose  sovereignty  it  is  exercising,  and  haul  its  citizens 
into  the  United  States  courts?  It  seems  to  me  that  to  merely  state  the  proposition 
is  also  to  state  its  answer.  The  Committee  on  Corporations  thought  best  to  provide 
as  they  have  done,  that  where  these  railroad  companies  wish  to  build  more  roads, 
where  these  street  car  companies  wish  to  get  more  franchises,  they  must  become  in- 
corporated under  the  laws  of  this^  State.  It  does  not  interfere  with  their  operation. 
It  does  not  embarrass  them.  Three-fourths  of  the  interstate  roads  in  the  United 
States  are  doing  that  to-day.  Other  States  require  it  of  them,  and  we  thought  it  was 
unreasonable  to  say  that  they  must  become  incorporated  under  the  laws  of  this  State, 
so  as  to  be  State  institutions  and  be  under  the  absolute  control  of  the  State  and  State 
laws,  and  amenable  to  the  State  courts.  That  is  not  an  unreasonable  requirement. 
It  is  one  that  is  met  by  all,  or  a  great  majority,  I  believe,  of  the  other  States.  The 
wisdom  bf  it  is  recognized.  It  is  not  a  burden  upon  them,  and  it  is  a  safeguard  for 
our  people.  I  venture  to  say,  Mr.  President,  that  it  will  not  impede  or  delay  the  build- 
ing of  one  inch  of  road  in  the  State  of  Virginia. 

As  I  stated  yesterday,  roads  are  built  because  of  trade  conditions  and  geographic 
conditions,  and  no  road  that  would  have  been  otherwise  built  is  abandoned  because 
the  company  will  have  to  spend  $5  or  $10  in  taking  out  a  domestic  charter.  If  we 
do  what  is  asked  to  be  done  by  the  gentleman  from  Wise,  the  effect  of  its  provision 
will  be  that  the  Louisville  and  Nashville  Railroad — and  without  making  any  criticism 
of  that  road  which  my  friend  refers  to  as  one  of  the  best  and  most  liberal  roads  in 
the  State,  if  the  statements  made  in  public  press  are  to  be  relied  upon,  it  was  the 
cause  very  nearly  of  producing  a  civil  war  in  Kentucky — the  effect  of  this  provision 
•will  be  that  that  road  or  any  other  railroad,  or  corporation  chartered  by  another  State 
over  whose  internal  affairs  we  have  absolutely  no  control,  will  be  authorized  to  come 
into  this  State,  condemn  property  under  the  right  of  eminent  domain,  exercise  a  part 
of  the  sovereignty  of  this  State,  and  then  when  our  citizens  sue  it  or  it  undertakes 
to  sue  our  citizens,  to  defy  the  courts  of  this  State  and  take  them  into  the  United 
States  court  for  their  litigation. 

I  think,  with  that  jingle  exception,  there  is  not  a  mile  of  road  in  the  State  of  Vir- 
ginia ever  built  under  such  circumstances.  I  am  convinced  that  that  provision  will 
not  prevent  or  delay  the  building  of  one  mile  more  in  this  State.  It  is  but  right  that 
we  should  put  this  provision  upon  them.  It  is  but  due  to  our  citizens  that  railroads 
should  not  be  allowed  to  come  into  the  State,  operate  and  build  their  roads,  and  then 
drag  them  into  the  Federal  courts;  and  this  is  the  only  way  in  which  we  can  prevent  it. 

I  trust,  therefore,  that  the  Convention  will  vote  down  the  amendment  offered  by 
the  gentleman  from  Wise.  I  very  much  regret  that  I  cannot  agree  with  his  views 
on  it.    This  is  a  matter  which  we  have  looked  into  carefully  and  we  have  considered 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2829 


that  for  the  reasons  which  I  have  attempted  to  state  to  you  it  would  be  a  grave  mis- 
take if  we  did  not  adopt  the  provision  substantially  as  it  is  now,  and  vote  down  the 
amendment  of  the  gentleman  from  Wise.  As  the  article  stands  now,  it  simply  pro- 
vides that  no  foreign  corporation  now  doing  business  in  the  State  shall  hereafter 
acquire,  use.  lease  or  operate  any  public  or  municipal  franchise  in  opposition  to  what  it 
now  has.  We  thought  it  was  useless  to  say  that,  while  no  foreign  corporation  can  do 
it,  they  could  do  it  by  becoming  incorporated  under  the  laws  of  the  State;  but  in  order 
to  put  the  matter  beyond  peradventure  it  is  my  purpose  as  soon  as  the  amendment 
of  the  gentleman  from  Wise  is  disposed  of  one  way  or  the  other,  to  ask  that  the  words 
"without  having  become  incorporated  under  the  laws  of  the  State"  be  inserted,  so  that 
the  section  will  then  read: 

But  such  foreign  service  corporation,  so  engaged,  shall  not  be  authorized  to  here- 
after acquire,  lease,  use  or  operate  within  this  State  any  public  or  municipal  franchise 
in  addition  to  such  as  it  may  own,  lease,  use  or  operate  when  this  Constitution  goes 
into  effect,  without  first  becoming  incorporated  under  the  laws  of  this  State. 

As  I  have  tried  to  explain  to  3'ou,  such  corporation  does  not  interfere  with  them 
in  the  least.  The  company  can  do  business  under  the  same  organization  and  with  the 
same  directors  and  with  the  same  officers  as  before;  but  will  be  just  like  the  other 
roads  which  run  through  other  States,  become  incorporated  either  ipso  facto  by  enter- 
ing the  State,  or  b3^  taking  out  a  charter  to  operate  under  the  same  organization  in 
the  State. 

I  will  read,  in  this  connection,  from  the  recent  Constitution,  dated  1895,  of  the 
State  of  South  Carolina — and  similar  provisions  are  in  those  of  other  States,  I  remem- 
ber particularly  in  that  of  Mississippi,  and  in  the  statutes  of  many  others.  I  think 
ii  is  the  general  rule: 

The  General  Assembly  shall  not  grant  to  any  foreign  corporation  or  association  a 
license  to  build,  operate  or  lease  any  railroad  in  this  State;  but  in  all  cases  where  the 
railroad  is  to  be  built  and  operated,  or  if  it  is  noAV  being  operated  in  this  State,  and  the 
same  shall  be  operating  in  this  State  or  other  States,  the  owner  of  the  charter  thereof 
shall  first  become  incorporated  under  the  laws  of  this  State. 

The  object  of  this  provision  now  is  to  say  that,  while  they  can  continue  their  pres- 
ent operation  unimpaired,  if  they  seek  to  get  other  franchises  or  further  public  or 
municipal  franchises,  they  must  become  incorporated  under  the  laws  of  this  State.  It 
is  a  mistake  to  talk  about  our  having  invited  these  people  to  come  here  and  that  there- 
fore we  ought  never  to  change  our  law.  I  venture  to  say  that  no  public  invitation  was 
ever  extended  to  them  to  come  here,  and  if  it  was,  they  would  not  pay  any  attention 
tc  it  unless  it  was  to  their  interest.  They  came  because  they  wanted  to  come,  because 
they  thought  it  was  to  their  interest  to  come,  and  it  is  absurd  to  say  that  they  came 
as  the  guests  of  the  State  because  they  were  invited  here.  It  is  absurd  to  say  that 
because,  a  law  exists,  when  a  railroad  company  or  anybody  else  comes  here  to  do  busi- 
ness, that  it  is  a  duty  on  our  part  never  to  change  it  again.  It  is  no  burden  on  them. 
T  hope  the  amendment  of  the  gentleman  will  be  voted  down. 

Mr.  Ayers:  Mr.  President,  a  good  portion  of  the  time  of  my  friend  has  been  occu- 
pied in  announcing  propositions  that  no  one  will  deny,  that  no  State  should  grant  to 
foreign  corporations  the  right  of  domination  and  to  exercise  the  right  of  eminent 
domain.  That  goes  without  saying.  But  the  State  of  Virginia  has  done  that.  It  has 
induced  a  railroad  company  by  granting  the  right  to  it,  to  come  in,  and  it  has  induced 
a  very  large  sum  of  money  in  the  State — two  millions  of  dollars  and  over — to  be  put 
into  it.  My  friend,  the  experienced  railroad  man,  characterizes  it  as  absurd  that  the 
fact  of  having  invited  a  railroad  company  to  build  in  Virginia  for  the  purpose  of  de- 
veloping the  mineral  section,  having  granted  them  the  right  to  build  branch  lines 
twenty  miles  in  length,  and  other  lines,  according  to  this  act,  longer  than  that — that 


2830  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 

after  you  have  gotten  them  to  come  into  the  State,  after  the  line  is  completed,  that 
you  shall,  by  a  constitutional  provision,  cut  off  the  right  to  get  into  one  of  the  mines 
or  places  or  collieries  that  you  have  invited  the  railroad  company  to  come  in  and 
develop. 

Mr.  Braxton:  Will  the  gentleman  be  so  kind  as  to  state  what  this  invitation  was 
and  how  it  was  given? 

Mr.  Ayers:  It  was  given  by  an  act  of  the  General  Assembly  of  the  State  of  Vir 
ginia. 

Mr.  Braxton:  Was  not  that  act  proposed  by  the  railroad  itself  that  you  say  was 
an  invitation  for  them  to  come  here.  Was  it  not  an  act  which  they  asked  themselves 
should  be  passed  instead  of  an  invitation  from  us? 

Mr.  Ayers:  It  does  not  matter  at  all.  I  am  speaking  of  the  legal  effect  of  it.  Do 
you  suppose  that  if  the  Louisville  and  Nashville  Railroad  Company  had  been  told 
twelve  years  after  they  had  built  this  road  one  gentleman  from  Augusta  would  organ- 
ize a  corporation  commission  that  would  at  one  fell  swoop  take  away  from  the  road  any 
right  to  get  at  the  traffic  for  which  it  built  its  main  road,  it  would  have  come  here  at 
all?  I  say  it  is  bad  faith.  It  is  not  that  I  challenge  the  principles  which  you  announce 
and  in  which  I  agree  with  you  fully,  but  I  say  that  the  State  of  Virginia  has  always, 
in  good  and  in  bad  times,  attempted  to  keep  her  faith,  as  far  as  she  could  with  States 
and  with  individuals  as  well  as  with  corporations. 

Mr.  Braxton:  Does  my  friend  claim  that  it  would  be  bad  faith  for  the  State  to 
change  her  laws  in  reference  to  corporations  chartered  outside  the  State? 

Mr.  Ayers:  I  claim  that  to  take  away  from  a  company  which  you  have  permitted 
to  come  into  the  State  of  Virginia  and  to  develop  certain  traffic,  absolutely  the  right 
tu  develop  and  to  go  into  any  of  that  traffic  without  surrendering  the  right  you  gave 
it,  in  order  to  induce  it  to  come  here,  is  an  act  of  bad  faith. 

The  General  Assembly  of  Virginia  was  at  that  day  and  time  as  much  the  repre- 
sentative of  the  people  of  Virginia  as  is  the  Constitutional  Convention  now,  and  the 
faith  of  the  State  is  pledged  to  these  people  that  they  shall  not  be  deprived  of  these 
necessary  rights  to  utilize  what  they  have  already  done.  I  do  not  ask  that  you  shall 
give  the  power  to  build  a  road  to  the  North  Carolina  or  to  the  Maryland  line  or  to 
the  Seaboard.  I  simply  ask  that  you  shall  leave  the  company  in  the  possession  of 
those  rights  and  franchises  for  the  purpose  of  utilizing  the  road  which  they  built  and 
the  money  which  you  induced  them  by  this  act  to  come  into  the  State  and  expend. 
I  ask  that  those  rights  should  be  left  to  it  and  that  no  further  rights  as  a  foreign 
corporation  shall  be  granted  to  it. 

Now,  Mr.  President,  I  will  say  for  twelve  years  this  railroad  has  been  in  opera- 
tion in  Virginia.  The  gentleman  lays  stress  upon  the  right  of  that  road  as  a  foreign 
corporation  to  go  into  the  Federal  courts.  I  agree  fully  with  what  my  friend  from 
Norfolk  (Mr.  Thom)  yesterday  said  upon  that  point.  That  "I  will  never  consider  the 
Federal  court  as  foreign  court  to  Virginia."  But  I  do  that  for  twelve  years,  with  con- 
siderable litigation,  suit  after  suit,  that  company  has  never  as  yet  removed  one  of 
these  cases,  but  all  have  been  tried  in  the  State  courts,  and  in  more  than  one  case 
have  gone  through  the  circuit  court  to  the  Supreme  Court  of  Appeals.  Never  once 
has  it  exercised  its  right,  which,  according  to  the  Federal  court,  it  clearly  has,  to  re- 
move its  cases,  notwithstanding  the  provision  in  that  statute  itself  into  the  Federal 
court.  But  I  want  to  say  that  it  is  violative  of  no  general  rule.  If  this  is  the  only 
road,  then  the  exception  will  only  apply  to  this  road.  If  the  Louisville  and  Nashville 
is  the  only  road  that  has  been  built  in  the  State  of  Virginia  under  these  circumstances, 
then  the  exception  here  will  only  apply  to  that,  and  the  general  principle  will  apply  to 
all  foreign  corporations  hereafter  seeking  to  enter  the  State  of  Virginia.  By  refusing 
to  put  this  in,  you  wipe  out,  if  subject  to  repeal,  and  this  act  of  the  General  Assembly 
is  made  subject  to  alteration  or  repeal  by  the  General  Assembly,  you  come  here  and 
you  repeal  absolutely  every  provision  that  would  enable  these  people,  absolutely  sub- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2831 

jectlng  themselves  to  the  law  of  the  State  of  Virginia,  to  develop  the  resources  for 
which  the  line  was  built. 

Now,  it  is  an  exception.  The  good  faith  of  Virginia  requires  that  this  company 
shall  be  left  with  the  power,  without  holding  it  up  as  a  highwayman  and  saying:  "Yes, 
you  can  build,  but  you  can  build  only  upon  the  terms  of  becoming  a  Virginia  corpora- 
tion." If  the  General  Assembly  of  Virginia  had  said  to  the  Louisville  and  Nashville 
Railroad  when  it  was  coming  in  here,  "These  are  the  only  terms  upon  which  you 
can  come  into  the  State  of  Virginia,"  I  agree  with  the  gentleman  that  it  would  have 
been  proper  and  right  and  the  proper  thing  to  do.  And  it  is  the  proper  thing  to  do 
for  any  other  foreign  corporation  seeking  to  come  into  Virginia  and  seeking  to  operate 
a  railroad.  But  the  State  of  Virginia  did  not  do  that.  The  State  of  Virginia  permitted 
it  to  come  in  under  an  act  passed  by  its  General  Assembly  granting  it  certain  privi- 
leges; and  now,  after  it  has  come  and  has  expended  its  money  and  is  operating  its 
road  and  developing  and  making  the  State  wealthy,  the  State  comes  in  and  says, 
"Although  we  have  done  this,  although  we  have  held  out  to  you  the  same  privileges 
granted  to  other  corporations  of  the  State,  we  are  going  to  take  it  all  away  and  force 
you  to  be  in  this  State  a  different  corporation  from  that  which  you  were  when  we 
granted  you  the  right."  There  is  no  justice  in  it.  There  is  no  reason  why  that 
line  of  the  Louisville  and  Nashville,  from  Cumberland  Gap  to  Norton,  Va.,  should  not 
exercise  the  same  privileges  which  are  granted  to  other  roads  in  the  State  by  general 
law,  the  right  to  build  branches  of  twenty  miles  in  length. 

Mr.  Braxton:  Mr.  President,  I  should  like  to  say  just  one  word  more.  The  gen- 
tleman admits  that  the  policy  of  this  section  is  a  wise  and  proper  policy  for  all  other 
roads  that  hereafter  may  come  into  the  State.  If  it  is  not  right  and  proper,  then 
we  ought  to  throw  it  out;  but  if  it  is  proper  to  provide  that  no  other  railroad  shall 
build  lines  without  becoming  incorporated  under  the  laws  of  this  State,  why  should 
we  except  the  Louisville  and  Nashville  from  it?  If  it  is  good  for  everybody  else,  why 
is  it  not  good  for  them?  My  friend  says  it  is  bad  faith.  My  friend  says  we  induced 
them  to  come  here;  and  you  would  imagine  that  we  went  after  them  and  asked  them 
to  come  here  and  that  we  voluntarily'  adopted  this  act  and  held  it  out  to  them  with 
the  promise  that  if  they  would  come  we  would  never  change  the  law  in  that  respect. 
The  fact  of  the  whole  business  is  that  they  invited  themselves  to  come.  We  were 
very  glad  to  have  them  come,  it  is  true,  but  it  is  idle  to  say  that  they  are  here  merely 
as  a  guest  of  the  State,  and  that  we  were  deriving  all  the  benefits.  I  venture  to  say 
as  a  matter  of  fact  that  the  Louisville  and  Nashville  Railroad  Company  has  made  as 
much  out  of  Virginia  as  Virginia  has  ever  made  out  of  the  railroad.  I  venture  to  say 
that  no  such  idea  ever  entered  the  head  of  that  company  as  that  they  should  come 
here  to  benefit  us.  They  came  to  benefit  themselves,  and  incidentally  to  benefit  us. 
T  am  very  glad  they  did  come,  but  they  did  not  come  from  any  motive  but  a  selfish  one. 

I  say  that  any  right  which  has  been  given  to  that  road  by  that  act,  which  was 
probably  drawn  by  the  company  itself,  if  I  am  any  judge,  were  acquired  by  proceed- 
ings which  have  been  adopted  in  similar  cases.  They  had  their  lobbies  to  put  it 
through.  If  they  have  any  right  there  which  we  have  no  right  to  withdraw  from  them 
the  Federal  Constitution  provides  for  that,  and  we  cannot  hurt  them;  but  if  they  had 
any  contract  right  or  other  rights  other  than  those  which  belong  to  them,  and  which 
we  cannot  violate,  we  have  every  right,  and  it  is  our  duty,  in  the  interest  of  the  peo- 
ple of  this  State,  irrespective  of  the  Louisville  and  Nashville  Railroad,  to  legislate 
along  the  line  which  the  gentleman  assumes  is  a  wise  one.  to  legislate  along  the  lines 
which  this  State  has  always  legislated  along  for  years,  because  it  is  the  only  road 
which  ever  came  in  under  these  circumstances. 

But  I  take  it  that  there  is  a  grave  doubt  as  to  whether  the  Louisville  and  Nash- 
ville Railroad  is  not  to-day  a  Virginia  corporation.  I  think  under  the  act  under  which 
it  came  in  there  is  a  grave  doubt  as  to  whether  that  act  did  not  constitute  them  a  Vir- 
ginia corporation.    If  not,  I  fail  to  see  in  reading  the  act  wherein  they  are  not  already 


2833  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


a  Virginia  corporation.  They  are  given  the  right  of  eminent  domain;  they  are  pro- 
hibited from  going  into  the  United  States  courts;  they  are  made  amenable  to  our 
courts  and  to  our  laws  and  all  the  laws  that  operate  here  on  any  other  corporation. 
If  that  does  not  make  it  a  domestic  corporation  I  ask  you  what  does?  But  if  it  does 
not,  and  if  it  be  true,  as  contended,  that  it  is  not  a  Virginia  corporation,  then  I  state 
as  a  proposition  that  I  do  not  believe  can  be  refuted,  that  a  provision  which  pre- 
vents their  going  into  the  United  States  courts  is  absolutely  of  no  avail,  because  the 
courts  have  held  again  and  again  that  you  cannot  prescribe  that  as  a  prerequisite  to 
a  foreign  corporation  coming  into  the  State;  and  the  only  means  by  which  you  can 
keep  them  out  of  the  United  States  courts  is  on  the  ground  that  they  are  domestic 
corporations  already,  they  will  not  be  hurt.  If  they  are  not,  they  are  here  under  an 
act  which  they  drew  themselves  and  which  they  know  cannot  be  enforced.  We  do 
not  say  they  shall  not  build  roads.  We  lea^fe  every  road  to  build  as  many  railroads 
and  branch  lines  as  they  see  fit;  but  we  simply  say  that  before  that  road  is  built  they 
shall  comply  with  a  reasonable  requirement,  not  difficult,  not  embarrassing,  not  bur- 
densome, one  which  the  gentleman  admits  every  other  railroad  in  the  State  will  have 
to  comply  with,  one  which  the  majority  of  the  States  of  the  Union  now  prescribe. 

I  think  they  have  utterly  failed  to  show  any  reason  why  they  should  be  made  an 
exception  to  the  rule  that  every  railroad  in  the  State  has  and  that  nearly  every  other 
State  in  the  Union  requires  of  its  railroads,  and  that  is  that  they  shall  become  domestic 
corporations,  and  as  I  have  shown  you  by  the  authorities,  that  does  not  interfere  v/ith 
or  embarrass  them  in  any  way  in  the  performance  of  their  duties. 

The  President:  The  question  is  on  agreeing  to  the  aniiendment  of  the  gentleman 
from  Wise  (Mr.  Ayers). 

The  amendment  was  rejected. 

Mr.  Braxton:  I  move  that  after  the  word  "effect"  in  line  18,  these  words  be  in- 
serted, "without  first  becoming 'incorporated  under  the  laws  of  this  State." 

That  is  the  amendment  I  referred  to  when  I  was  speaking  just  now,  so  that  the 
section  will  then  read: 

But  any  such  foreign  public  service  corporation,  so  engaged,  shall  not  be  authorized 
to  hereafter  acquire,  lease,  use  or  operate,  within,  this  State,  any  public  municipal 
franchise,  in  addition  to  such  as  it  may  own,  lease,  use,  or  operate,  when  this.  Con- 
stitution goes  into  effect,  without  first  becoming  incorporated  under  the  laws  of  this 
State. 

The  amendment  was  agreed  to. 

Mr.  Braxton:    I  move  that  Section  12,  as  amended,  be  adopted. 
Section  12  was  adopted. 

Mr.  Braxton:  Mr.  President,  I  am  informed  by  the  gentleman  from  Pulaski  (Mr. 
Wysor),  who  offered  a  resolution  yesterday  to  reinsert  Section  8  that  he  will  not  press 
that  motion.  Tha.t  leaves  us  to  dispose  of  the  amendment  offered  by  the  gentleman 
from  Charlotte  (Mr.  Eggleston)  to  Section  5.  I  will  ask  the  Secretary  to  read  the 
amendment  proposed  by  him. 

The  Secretary  read  as  follows: 

Strike  out,  in  line  23,  Section  5,  the  words  "  and  annulment  of  the  charter  or,"  and 
insert  the  words  "of  the,"  so  as  to  read:  "The  failure  of  any  corporation  for  two 
sucessive  years  to  pay  its  said  annual  franchise  or  license  fee,  or  to  make  its  said 
annual  reports  in  connection  therewith,  shall,  when  such  failure  shall  have  continued 
for  ninety  days  after  the  expiration  of  the  said  two  years,  operate  as  a  revocation  of 
the  license  of  such  corporation,"  and  strike  out,  in  line  24,  the  words  "  as  the  case 
may  be."  s 

The  President:    The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Charlotte  (Mr.  Eggleston). 
The  amendment  was  rejected. 
Section  5  was  adopted. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2833 


Mr.  Braxton:  Mr.  President,  in  view  of  the  disposition  that  has  been  made  of 
that  amendment,  I  ask,  on  behalf  of  the  committee,  that  Section  19  be  stricken  out  for 
the  reasons  that  I  stated  yesterda3\  We  do  not  think  it  necessary  to  have  it  in  there 
DOW  in  view  of  the  provisions  of  Section  5. 

The  motion  was  agreed  to. 

Mr.  Wysor:  Mr.  President,  I  withdraw  my  motion  to  reinstate  Section  8  in  the 
report. 

Mr.  Braxton:  Mr.  President,  I  believe  that  disposes  of  the  entire  report,  except 
the  employers'  liability  bill,  in  Section  11.  This  is  a  matter  which  has  attracted  a 
good  deal  of  attention.  It  is  a  matter  of  very  great  and  immediate  importance  to  the 
railroad  employees  whom  it  affects,  and  it  is  very  important  that  it  should  be  prop- 
erly worded.  Since  the  report  of  the  committee  Vv-as  made,  I,  together  with  some  of  the 
more  prominent  friends  of  the  measure,  have  recast  that  section  and  made  some 
changes  in  the  language,  in  order  to  meet  some  possible  difficulties,  which  it  occurred 
to  us  might  possibly  arise  under  it.  The  section  as  recast,  I  desire  now  to  offer  as  a 
substitute  for  the  section  as  it  appears  in  the  report.  In  doing  this  I  speak  only  for 
myself.  I  am  not  authorized  to  offer  it  as  such  by  the  committee.  There  is  some  dif- 
ference of  opinion  among  the  members  of  the  committee  as  to  which  is  the  most  de- 
sirable section,  and  I  merely  offer  it  for  what  it  is  worth.  I  am  constrained  to  think 
that  it  is  more  satisfactory  and  certainly  more  reliable  shape  than  it  appears  in  the 
report. 

I  have  conferred  with  a  number  of  the  more  prominent  friends  of  the  measure, 
and  I  think  the  majority  of  them  agree  with  me  in  this.  The  only  point  on  which 
there  is  a  difference  between  the  members  of  the  committee  is  in  connection  vvith 
one  sentence,  which  reads  as  follows: 

Knowledge  by  any  such  employee  injured  of  the  defective  or  unsafe  character  or 
condition  of  any  m.achinery,  ways,  applances  or  structures,  shall  be  no  defence  to  an 
action  for  injury  caused  thereby. 

Some  of  the  members  of  the  Committee  on  Corporations  do  not  approve  of  that 
language,  and  in  this  connection  I  wish  to  make  this  explanation.  The  article  as  re- 
ported in  the  report  of  the  committee  was  based  upon  a  resolution  introduced  some 
time  ago  in  the  Convention  by  the  gentleman  from  Danville  (Mr.  Withers),  and  which 
was  practically,  and  I  think  literally,  a  transcript  of  the  provision  in  the  Constitutions 
of  Mississippi  and  South  Carolina.  This  ssntence,  as  it  now  appears  in  the  substitute, 
is  an  exact  transcript,  so  far  as  it  goes,  of  the  constitutional  provision  of  Mississippi. 
I  am  free  to  say,  Mr.  President,  that  if  I  were  drawing  this  matter  as  an  original  propo- 
sition without  any  guide,  I  probably  would  not  have  used  this  exact  language  at  this 
point.  It  so  happens,  however,  that  that  language  was  the  subject  of  judicial  investi- 
gation and  construction  by  the  Supreme  Court  of  Mississippi  in  the  case  of  Buckner 
vs.  the  Railroad  Company,  decided  In  1895,  and  reported  in  72  Mississippi  reports. 

Mr.  R.  Walton  Moore:  I  desire  to  ask  the  gentleman  for  information,  whether 
he  means  to  say  that  the  language  as  reported  here,  is  the  language  employed  by  the 
Mississippi  Constitution,  or  the  language  that  is  offered  as  the  substitute? 

Mr.  Braxton:  The  language  in  the  substitute.  In  construing  that  particular  lan- 
guage, the  Supreme  Court  of  Mississippi  gave  it  the  exact  construction  that  the  Com- 
mittee on  Corporations  and  the  friends  of  this  measure  wish  it  to  have. 

Now,  Mr.  President,  if  it  had  never  been  construed,  I  personally  would  not  have 
used  that  language  exactly,  but  having  been  construed,  and  the  construction  put  upon 
it  being  so  exactly  the  construction  which  we  wish  it  to  have,  we  thought  it  would 
be  best  and  safest  to  use  that  identical  language  in  the  light  of  that  construction,  with 
the  understanding  that  it  shall  mean  in  this  State  exactly  the  thing  which  the  Su- 
preme Court  of  Mississippi  said  it  meant  in  that  State;  and  in  order  that  there  may 
be  no  mistake  about  this,  I  will  read  in  this  connection  what  the  Supreme  Court  of 


2834  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mississippi  said  it  does  mean.  I  read  from  pages  878  of  72  Mississippi  report.  In 
referring  to  this  provision  to  which  I  am  addressing  myself  now,  this  sentence  which 
appears  in  Section  193,  of  the  Mississippi  Constitution,  the  court  says: 

The  effect  of  this  is  not  to  destroy  the  defence  of  contributory  negligence  by  a  rail- 
road company,  but  merely  to  abrogate  the  previously  existing  rule  that  knowledge  by 
an  employee  of  the  defective  or  unsafe  character  of  the  condition  of  the  machinery, 
ways  or  appliances,  shall  not  of  itself  bar  a  recovery. 

The  law  was.  that  knowledge  by  an  employee  of  defective  appliances  which  he 
voluntarily  used,  precluded  his  recovery  for  an  injury  thus  received.  The  Constitu- 
tion destroys  that  rule,  and  the  mere  fact  that  the  employee  knew  of  the  defect,  is  not 
a  bar  to  recovery;  but  knowledge  by  an  employee  of  defects,  is  still  an  element  or 
factor,  and  a  very  important  one  in  determining  whether  with  the  knowledge  he  had, 
he  used  that  degree  of  caution  required  in  his  situation  with  reference  to  the  applances 
causing  the  injury. 

The  Constitution  did  not  have  the  effect  to  free  exployees  of  railroad  companies 
from  the  exercise  of  ordinary  caution  and  prudence.  It  does  not  license  recklessness 
or  carelessness  by  them,  and  give  any  claim  to  compensation  for  injuries  thus  received. 
They,  like  others,  not  employees,  must  not  be  guilty  of  contributory  negligence  if  they 
would  secure  a  right  of  action  for  injuries.  The  fact  of  knowledge  shall  not  be,  as 
heretofore  a  presence  or  absence  of  contributory  negligence,  which  is  yet  a  defence, 
as  it  was  before,  but  is  not  to  be  made  out  against  the  employee  by  the  mere  fact  of  his. 
knowledge. 

Mr.  Thom:    Will  my  friend  accept  this  provision,  to  make  certain  his  meaning? 

Add  at  the  end  of  the  section,  "Provided  that  nothing  herein  contained  shall  be 
construed  to  impair  the  defence  of  contributory  negligence." 

Mr.  Braxton:  The  only  objection  I  could  have  to  that  would  be  this,  Mr.  Presi- 
dent, that  the  the  exact  language  we  use  has  been  construed  by  the  court  in  the 
light  that  we  give  it  here,  and  if  the  language  was  inserted,  it  could  not  mean  more, 
and  it  might  mean  something  that  we  do  not  wish  to  put  in. 

My  point  is  that  whether  language  is  apt  or  not,  when  it  has  once  received  a 
judicial  construction,  and  the  court  has  said  it  means  exactly  the  thing  you  want  it 
to  mean,  then  the  safest  thing  to  do  is  to  adopt  that  language,  whether  you  would 
have  originally  taken  it  or  not,  and  for  that  reason  and  that  reason  only  I  would  object 
to  the  insertion  of  the  language  suggested  by  my  friend  from  Norfolk. 

Mr.  Thom:  I  wish  to  call  my  friend's  attention  to  the  fact  that  in  the  decision 
which  he  has  read  the  first  sentence  of  the  extract  was  that  the  effect  of  this  is  not 
to  interfere  with  the  defense  of  contributory  negligence. 

My  friend  has  said  his  purpose  in  reading  that  decision  is  to  be  certain  that  our 
Court  of  Appeals  will  put  upon  this  article  the  same  construction  put  upon  the  article 
in  the  State  of  Mississippi  by  the  Mississippi  court.  Now,  that  cannot  be  made  cer- 
tain in  any  other  way  except  to  put  in  the  article  itself  the  interpretation  of  that 
article  as  given  by  the  Mississippi  court,  and  all  I  am  asking  at  the  hands  of  the  com- 
mittee is  that  inasmuch  as  that  is  the  construction  put  upon  the  article  by  the  Missis- 
sippi court,  we  shall  express  that  on  the  face  of  this  article,  and  if  that  be  true,  can 
tliere  be  any  legitimate  objection  to  the  suggestion  that  this  explanation  should  be 
added? 

Mr.  Braxton:  Mr.  President,  I  suppose  when  my  friend  says  that  we  can  have 
no  certainty  that  the  court  will  construe  it  as  the  Mississippi  courts  construed  it  he 
has  in  mind  a  recent  case  from  Kentucky  in  which,  in  construing  language  used  by 
the  Interstate  Commerce  act,  the  Supreme  Court  of  Kentucky  gave  a  different  con- 
struction from  what  had  theretofore  been  given  by  the  Supreme  Court  of  the  United 
States  in  construing  the  same  language.  In  reply  to  that,  I  can  simply  say  that  you 
can  find  precedents  occasionally  for  some  very  extraordinary  rulings,  to  which  prece- 
dents we  must  apply  the  maxim  that  one  swallow  does  not  make  a  summer.  The  over- 
whelming weight  of  authority  in  the  matter  of  the  doctrine  of  construction  is  that 
when  a  statute  or  constitutional  enactment  of  one  State  is  adopted  by  another,  it  is 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2S35 


adopted  in  the  light  of  the  construction  that  is  put  upon  it  by  the  State  Yrhich  origi- 
nally adopted  it,  unless  there  is  something  else  in  the  statute  to  indicate  the  contrary. 

Now.  ^hen  we  state  on  the  floor  of  this  Convention  in  the  debates,  which  are 
published  not  merely  for  the  gratification  of  the  individuals  to  see  their  names  in 
print,  but  for  the  purpose  of  enabling  the  court  hereafter  to  read  our  enactments  in 
view  of  the  construction  that  is  put  upon  tnem  m  debate,  and  when  it  is  stated  that 
if  this  thing  is  adopted  it  is  adopted  expressly  with  the  understanding  that  it  shall 
have  the  construction  put  upon  it  in  Mississippi  and  that  construction  is  read,  it  seems 
to  me  utterly  inconceivable  that  a  court,  in  view  of  that  state  of  affairs,  would  fail  to 
give  it  the  construction  which  the  body  which  enacted  it  said  it  intended  it  to  have 
Even  if  we  had  said  nothing  about  it.  in  spite  of  the  case  from  Kentucky.  I  think  there 
would  not  be  one  chance  in  a  thousand  of  their  failing  to  give  it  that  construction, 
because  the  court  would  impute  to  us  the  knowledge  of  that  r^Iississippi  case  and  would 
be  bound  to  hold  we  had  adopted  it  in  view  of  that  construction. 

That  being  the  case,  ]\Ir.  President.  I  cannot  agree  with  my  friend  that  there  is 
any  possibility,  that  we  can  reckon  with  at  all,  that  the  courts  of  this  State  in  constru- 
ing this  section  would  fail  to  give  it  the  construction  which  we  say  ourselves  it  must 
have.  In  view  of  that,  the  safest  and  wisest  thing  for  us  to  do  is  to  adhere  strictly 
to  that  language,  saying  at  the  time  we  adopt  it  that  we  adopt  it  in  view  of  and  with 
the  construction  put  upon  it.  which  constrtiction  we  adopt  at  the  time  we  adopt  the 
language.  If  we  do  not  do  that,  then  I  say  the  best  thing  is  to  abandon  that  entirely, 
and  use  different  language,  and  draw  this  section  de  novo.  The  disadvantage  of  that 
is  that  however  plain  we  may  think  the  language  is.  we  run  the  risk  of  a  different  con- 
struction being  put  upon  it.  whereas  here  we  have  it  already  construed  to  our  hand, 
and  we  had  better  adopt  it.  I  think. 

I  will  not  detain  the  Convention  longer.  I  will  ask  the  Secretary  to  read  the  sub- 
stitute which  I  again  state  I  do  not  offer  as  a  committee  substitute,  but  on  my  own 
responsibility,  although  it  was  drawn  after  careful  conference  with  the  friends  most 
Interested  in  the  measure,  and  I  think  it  meets  their  approbation.  I  should  be  very 
glad  if  any  of  those  gentlemen  present  would  take  occasion  in  the  course  of  the  debate 
to  indicate  whether  or  not  they  approve  of  the  substitute,  if  they  do  so. 

The  Secretary  read  as  follows: 

The  doctrine  of  fellow  servants,  so  far  as  it  effects  the  liability  of  the  master  for 
injuries  to  his  servant  resulting  from  the  acts  or  omissions  of  any  other  servant  or 
servants  of  the  common  master,  is.  to  the  extent  hereinafter  stated,  hereby  abolished 
as  to  any  employee  of  any  railroad  company  engaged  in  the  physical  construction, 
repair,  or  maintenance  of  its  road-way.  track,  or  any  of  the  structures  connected  there- 
with, or  in  the  physical  operations  of  its  trains,  cars,  engines  or  switches,  and  every 
such  employee  shall  have  the  same  right  to  recover  for  every  injury  suffered  by  him 
from  the  acts  or  omissions  of  any  other  employee  or  employees  of  the  common  master, 
that  a  servant  would  have  (at  the  time  when  this  Constitution  goes  into  effect)  if  such 
acts  or  omissions  had  been  done  by  the  master  himself  in  the  performance  of  a  non- 
assignable duty;  provided,  that  the  injury  so  suffered  by  such  railroad  employee  results 
from  the  negligence  of  a  superior  officer  or  agent  of  the  company  or  from  that  of  a  per- 
son employed  by  the  company  and  having  the  right,  or  being  charged  with  the  duty,  to 
control  or  direct  the  general  services  or  the  immediate  work  of  the  party  injured,  or 
the  general  services  or  the  immediate  work  of  the  co-employee  by  whom  he  is  injured, 
and  also,  when  the  injury  results  from  the  negligence  of  a  co-employee  engaged  in 
another  department  of  labor  from  that  of  the  party  injured  or  engaged  on  another  train 
of  cars,  or  who  is  in  charge  of  any  switch,  signal  point,  or  locomotive 
engine,  or  is  charged  with  dispatching  trains  or  transmitting  telegraphic 
orders  therefor,  and  whether  such  negligence  be  in  the  performance  of  an 
assignable  or  non-assignable  duty.  Knowledge,  by  any  such  employee  injured, 
of  the  defective  or  unsafe  character  or  conditions  of  any  machinery,  ways, 
appliances,  or  structures,  shall  be  no  defense  to  an  action  for  injury  caused  thereby. 
TlTien  death,  whether  instantaneous  or  otherwise,  results  from  any  injury  to  such  an 
employee,  received  as  aforesaid,  and  which  would  have  entitled  him  to  recover  for 
such  injury  under  the  above  provisions,  had  death  not  occurred,  then  the  personal 


2836  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

representative,  surviving  consort  and  relatives  of  the  deceased  shall  respectively  have 
the  same  rights  and  remedies  for  such  death  of  the  deceased  as  they  respectively  would 
have  had,  if  his  death  had  been  caused  by  the  negligence  of  a  co-employee  of  the  com- 
mon master  while  in  the  performance,  as  vice  principal,  of  a  non-assignable  duty  of  the 
company.  Any  contract  or  agreement,  express  or  implied,  made  by  any  employee,  to 
waive  the  benefit  of  this  section,  shall  be  null  and  void.  This  section  shall  not  be  con- 
strued to  deprive  any  employee,  or  his  legal  or  personal  representative,  surviving  con- 
sort, or  relatives,  of  any  rights  or  remedies  that  he  now  has,  or  that  they  now  have,  by 
the  law  of  the  land,  Nothing  contained  in  this  section  shall  have  the  effect  of  restrict- 
ing the  power  of  the  General  Assembly  to  further  enlarge,  for  the  above  named  class  of 
employees,  the  rights  and  remedies  hereinbefore  provided  for,  or  to  extend  such  rights 
and  remedies  to,  or  otherwise  enlarge  the  present  rights,  and  remedies  of,  any  other 
class  of  employees  of  railroads  or  of  employees  of  any  person,  firm  or  corporation. 

Mr.  Wysor:  Mr.  President,  I  desire  to  offer  this  amendment  to  the  proposed  sub- 
stitute. In  the  first  part  of  the  last  line  on  the  first  page,  strike  out  the  words  "shall 
be  no  defence  to  an  action"  and  insert  "shall  not  of  itself  bar  a  recovery,"  and  at  the 
foot  of  the  ordinance  offered  by  the  chairman  of  the  committee  I  desire  to  add  this 
language:  "Nothing  in  this  section  shall  impair  the  doctrine  of  contributory  negli- 
gence." 

I  wish  to  say  to  the  Convention  that  I  do  not  agree  with  the  chairman  in  the  posi- 
tion he  has  taken.  He  says  he  does  not  voice  the  views  of  the  committee  at  all,  and 
he  is  correct  in  that.  He  has  offered  a  new  provision  in  its  wording  to  the  one  which 
is  found  in  the  report;  but  there  is  only  one  difference  in  substance,  and  that  is  that 
he  uses  this  language  in  the  resolution  offered  by  him:  "Knowledge  by  any  employee 
injured,  of  the  defective  or  unsafe  character  or  condition  of  any  machinery,  ways,  appli- 
ances or  structures,  shall  not  be  a  defence  to  an  action  for  an  injury  caused  thereby."  ' 

In  the  original  report,  it  reads  as  I  have  amended  thus: 

Knowledge  by  any  such  employee  injured  of  the  defective  or  unsafe  character  or 
condition  of  any  machinery,  ways,  appliances  or  structures,  shall  not  of  itself  bar  a 
recovery  for  an  injury  caused  thereby. 

As  a  rule,  I  have  very  great  respect  for  the  opinion  of  the  chairman  of  the  com- 
mittee on  questions  of  this  kind,  but  his  views  on  this  particular  question  have  no 
vveight  with  me,  and  I  should  say  they  should  have  no  weight  with  the  Convention, 
because  he  has  occupied  at  least  half  a  dozen  different  positions  on  It.  We  had  that 
very  question  up  before  the  Committee  on  Corporations,  and  it  was  argued  time  and 
again  before  the  committee,  and  we  finally  adopted  the  provision  which  I  am  now 
asking  the  Convention  to  adopt.  I  know  the  chairman's  views  have  Deen  different 
from  the  views  he  has  voiced  here  to  the  Convention,  and  I  do  not  think  they  are 
entitled  to  much  weight.  I  know  further  that  he  made  this  change  not  by  the  recom- 
mendation of  his  committee,  but  by  the  direction  and  influence  of  others  who  were 
associated  with  him  in  trying  to  get  this  measure  through. 

I  am  as  much  interested  in  the  employees  of  railroads  as  anybody.  I  have  been 
interested  in  this  measure  from  the  beginning  and  have  advocated  it. 

I  advocated  it  before  the  Committee  of  the  Whole  in  a  speech.  It  was  adopted 
iu  its  present  form  by  the  Committee  on  Corporations.  It  was  adopted  by  the  Com- 
mittee of  the  Whole,  but  when  you  give  some  men  an  ell  they  are  certain  to  try  to  take 
a  rod,  and  that  is  what  is  the  matter  now.  Men  who  want  drastic  provisions  against 
corporations  will  not  stop  at  getting  a  fair  provision,  but  when  they  see  an  opportunity 
to  get  something  that  is  unfair,  they  will  take  that  position. 

What  are  they  asking  you  to  establish  in  the  amendment  that  the  chairman  has 
offered.  That  knowledge  of  defective  machinery  shall  be  no  defense  to  an  action;  that 
when  a  man  sues  a  railroad  company  for  an  injury,  the  fact  that  he  knew  that  the 
implement  he  used  was  defective  shall  not  be  taken  into  consideration  at  all  in  a 
defense;  in  other  words,  if  I  am  an  employee  of  a  railroad  company,  I  may  go  and 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGINIA. 


2837 


use  machinery  that  no  prudent  man  would  use,  and  when  it  would  be  my  duty  not 
to  use  it,  but  to  report  it  to  the  company;  and  if  I  am  injured,  the  fact  that  I  knew 
of  that  defective  machinery  will  be  no  defense  to  the  company. 

I  submit  that  we  only  need  to  state  that  doctrine  to  show  it  is  very  unjust  to  the 
railroad  company,  and  I  certainly  hope  the  committee  will  retain  the  language  which 
we  adopted  in  the  Committee  on  Corporations,  and  that  the  Committee  of  the  Whole 
adopted,  which  says  that  knowledge  of  itself  shall  not  bar  recovery.  That  means  that 
you  may  take  into  consideration  other  things,  that  the  mere  fact  that  the  employee 
knew  the  machinery  was  defective  and  used  it  alone  shall  not  prevent  a  recovery,  but 
if  he  used  it  negligently,  if  he  used  it  when  he  ought  not  to  have  used  it,  if  he  used  it 
when  no  prudent  man  would  have  used  it,  you  may  take  all  those  facts  together  in  con- 
nection with  his  knowledge  of  defective  machinery  and  may  prevent  a  recovery  for  an 
injury,  sustained  by  him,  and  you  can  readily  preceive  that  there  will  be  circumstances 
where  he  ought  not  to  recover  where  he  uses  defective  machinery. 

Why,  the  railroad  companies  have  rules  that  men  must  not  use  defective  mach- 
inery. I  recall  the  rule  now  in  the  book  of  rules  of  the  Norfolk  and  Western  Rail- 
road Company  which  provides  that  when  machinery  is  defective,  they  must  report  it 
before  using.  Well,  under  this  substitute  an  employee  could  go  on  and  use  it,  and  not 
report  it,  and  the  fact  that  he  had  knowledge  of  it  might  not  be  any  defense  whatever 
to  an  action  brought  by  him  against  the  company  for  recovery. 

Take  this  decision  that  the  chairman  has  read.  The  language  we  have  in  the 
report  which  has  been  adopted  by  the  Committee  of  the  Whole  is  copied  from  the 
opinion  of  the  judge  in  that  case,  construing  the  language  of  the  Mississippi  Constitu- 
tion. The  Mississippi  Constitution  used  the  same  language.  I  believe,  that  the  gentle- 
man has  used  in  this  new  resolution,  but  the  Mississippi  court,  in  construing  that  lan- 
guage said: 

The  effect  of  this  is  not  to  destroy  the  defense  of  contributory  negligence  by  a  rail- 
road company,  but  merely  to  abrogate  the  previously  existing  rule  that  knowledge  by 
an  employee  of  the  defective  or  unsafe  character  or  condition  of  the  machinery,  ways, 
or  appliances  shall  not  of  itself  bar  a  recovery. 

This  is  the  language  of  the  opinion  cited  by  Mr.  Braxton  construing  the  language 
of  the  Mississippi  Constitution  which  was  put  in  our  original  report;  and  notwith- 
standing that  the  gentlemen  from  Staunton  wishes  to  get  rid  of  the  language  of  the 
Mississippi  court  construing  its  Constitution,  and  to  throw  our  courts  upon  a  construction 
of  the  language.  Why  do  that?  How  do  we  know  the  Virginia  courts,  in  construing 
the  language  he  has  here,  will  follow  the  Mississippi  courts?  In  the  amendment 
offered  by  me  to  his  substitute  I  do  not  take  the  language  of  the  Mississippi  Constitu- 
tion, but  take  the  language  of  the  Supreme  Court  of  Mississippi,  in  construing  the 
language  of  the  Mississippi  Constitution,  which  is  to  the  effect  that  knowledge  of  de- 
fective machinery  shall  not  of  itself  bar  a  recovery.  That  is  the  language  we  have 
put  in  the  report,  and  the  decision  he  quotes  sustains  it.  Why  should  he  wish  to  put 
in  the  Constitution  a  thing  that  will  need  construction  by  our  Supreme  Court?  What 
is  his  reason  for  it?  Why,  he  says  the  Supreme  Court  of  Virginia  will  follow  the  con- 
struction put  upon  the  language  by  the  Supreme  Court  of  Mississippi.  Well  then,  why 
not  take  the  construction  of  the  Supreme  Court  of  Mississippi  and  be  done  with  it. 
He  says  our  court  will  follow  the  Mississippi  court.  The  Mississippi  court  has  con- 
strued it,  and  instead  of  taking  the  language  which  it  has  construed,  take  its  construc- 
tion and  put  it  in  your  Constitution,  and  then  we  will  have  no  difficulty  about  it.  Then 
our  Supreme  Court  will  not  have  to  resort  to  a  Mississippi  court  for  a  precedent. 

Mr.  Green:  Would  you  be  willing  to  add  to  your  amendment  "such  knowledge 
shall  not  be  construed  to  be  contributory  negligence"?  You  and  I  seem  to  be  seeking 
the  same  object.  It  might  be  said  that  knowledge  could  be  construed  to  be  contributory 
negligence,  in  itself.    All  I  want  to  do  is  to  provide  that  the  court  cannot  so  construe 


2838 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


it.  I  want  to  know  whether  you  will  add  the  language:  "Such  knowledge  in  itself  shall 
not  be  construed  to  be  contributory  knowledge." 

Mr.  Wysor:  I  think  the  amendment  I  have  offered  meets  the  case.  I  do  not  think 
it  is  necessary  to  put  in  the  Constitution  that  it  should  not  be  construed  to  mean  con- 
tributory negligence,  because  there  are  circumstances  where  it  might  be.  Suppose  the 
machinery  is  so  defective  that  no  prudent  man  would  use  it,  and  then  a  servant  did 
use  it. 

It  would  be  negligence  itself  which  might  bar  a  recovery.  I  think  the  language 
ought  to  be  left  in  the  article  just  as  we  orginally  had  it,  that  knowledge  of  defective 
machinery  shall  not  of  itself  bar  recovery.  There  must  be  something  else  than  mere 
knowledge.  There  must  be  something  in  the  use  of  that  machinery  which  is  negli- 
gence. The  fact  that  he  knows  it  and  uses  it  will  not  bar  a  recovery,  but  if  he  sees  he 
cannot  use  the  machinery  with  prudence,  and  knows  that  if  he  does  use  it,  in  all  prob- 
ability he  will  be  injured,and  he  does  use  it,  the  master  is  not  responsible  to  him  in 
law  or  in  justice.  We  have  already  gone  a  long  way  for  the  employees  in  this  article. 
We  have  also  provided  that  the  Legislature  may  enlarge  these  rights  if  it  sees  proper 
to  do  so.  There  is  a  stopping  point  in  the  modification  of  the  doctrine  of  fellow  ser- 
vant. We  ought  to  put  a  provision  in  the  Constitution  about  the  meaning  of  which  we 
are  doubtful.  We  ought  to  express  our  meaning  clearly  and  unmistakably,  so  that  our 
language  will  not  need  construction.  Employees  do  not  want  you  to  adopt  doubtful 
provisions.    Both  employees  and  employer  want  to  know  their  rights  clearly. 

The  fact  that  we  are  dealing  with  corporations  does  not  influence  me  one  way  or 
the  other.  I  want  to  do  what  is  right  and  proper  about  it.  I  want  to  get  a  proper  pro- 
vision in  the  Constitution — one  that  is  just  to  employer  and  employee.  I  am  hoarse 
to-day  and  have  a  sore  throat,  otherwise  I  would  argue  the  question  more  at  length. 

Mr.  Meredith:  Mr.  President  and  gentlemen  of  the  Convention,  I  hope  it  will  be 
the  wish  of  the  Convention  to  adopt  the  substitute  that  is  offered  by  the  chairman  in 
place  of  the  one  that  was  reported  by  the  Committee  of  the  Whole.  The  chairman  has 
been  somewhat  censured  by  the  gentleman  who  has  just  taken  his  seat  (Mr.  Wysor) 
for  his  change  of  position  and  change  of  views  in  regard  to  it.  I  think  it  is  but  fair  to 
the  chairman  to  say  that  in  drafting  this  section  he  was  very  much  guided  by  the  sug- 
gestions made  by  those  of  us  who  claim  to  be  very  much  interested  in  this  question 
and  have  been  so  interested  for  years,  deeming  it  only  a  fair  and  proper  relief  to  give 
to  this  class  of  citizens.  He  somewhat  followed  our  suggestions;  but  the  committee 
undertook  to  change  the  language  of  the  Mississippi  Constitution  as  to  the  class  of 
employees  to  whom  it  is  to  be  given,  and  the  change  of  the  language  affected  a  change 
in  the  sense.  For  instance,  if  you  will  take  your  report  you  will  find  that  it  gives  them 
the  same  rights  and  remedies  as  are  allowed  "  by  law  to  other  persons,  not  employees 
or  passengers."  It  allows  the  same  rights  and  remedies  as  to  running  a  locomotive, 
as  to  changing  a  switch,  allowed  by  law  to  other  persons  not  employees  or  passengers. 
Now,  what  rights  are  allowed  by  law  to  a  person  not  an  employee  as  to  such  work? 

So  you  see  the  language  used  was  very  unfortunate.  Under  those  circumstances 
we  went  to  the  committee  and  asked  them  to  make  a  change,  so  as  to  make  it  clear  as 
to  what  was  intended  by  the  language  used.  I  do  not  twit  anybody  with  a  change  of 
views,  especially  when  it  is  simply  a  change  of  language;  but  my  friend  from  Pulaski 
(Mr.  Wysor)  has  accepted  a  change  of  some  dozen  or  more  lines,  down  to  the  word 
"  knowledge,"  and  very  wisely  accepted  it. 

Mr.  Wysor:    It  was  only  a  change  in  language. 

Mr.  Meredith:  Of  course  it  was  a  change  of  language,  and  this  is  a  change  of 
language,  and  an  intentional  change  of  language,  I  presume;  but  the  question  is  what 
is  the  effect  of  the  change  of  language.  I  do  not  propose  to  twit  him  with  change  of 
position,  because  any  sensible  man  will  change  his  position,  even  as  to  ideas  and  senti- 
ments, when  it  is  proper  to  do  so. 

Let  us  see  what  is  given  by  the  substitute.    My  friend  speaks  as  if  it  were  a  very 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXIIOX  OE  VIRGIXIA. 


2839 


liberal  thing  to  give  to  this  class  of  people.  Let  us  see  whether  that  is  so.  This  is 
claimed  to  be  a  democratic  country.  England  has  a  monarchical  goYernment;  and  3'et 
in  England  to-day  all  classes  of  employees — it  is  not  confined  to  a  few  of  one  class  like 
railroad  employees — all  classes  of  employees  in  England  to-day  have  far  gi^eater  pro- 
tection as  to  matters  of  this  kind  than  is  given  now  in  democratic  America.  Yet 
England  is  said  to  be  the  birthplace  of  this  doctrine  of  fellow  servants.  Indeed,  under 
the  late  English  act  the  doctrine  of  contributory  negligence  is  abolished  in  certain 
cases.    That  is  surprising  to  you. 

What  do  we  ask  in  this  substitute?  AYe  do  not  ask  for  anything  of  that  kind.  Y'e 
do  not  ask  for  any  extreme  doctrine  of  that  kind.  Here  in  democratic  America  we  are 
willing  to  get  what  you  gentlemen  are  willing  to  give  us,  and  what  we  have  been  fight- 
ing for  for  years  before  the  Legislature.  At  every  session  we  have  been  met  by  the 
attorneys  for  the  railroads  insisting  that  these  people  should  not  be  protected  in  their 
lives  and  limbs;  holding  that  the  property  of  the  railroad  should  be  protected  in  pre- 
ference to  the  lives  and  limbs  of  our  fellow-citizens.  You  may  smooth  it  over  by  calling 
it  a  contract,  if  you  choose.  You  may  use  soft  language.  You  may  undertake  to 
express  it  so  as  to  give  some  salve  for  your  own  consciences,  but  the  question  is  a  ques- 
tion of  life  and  limb  on  one  side  and  property  on  the  other.  That  is  the  bald,  naked 
fact.  We  are  asking  for  protection  to-day,  as  far  as  we  can  get  it.  I  say  this  does  not 
go  as  far  as  we  would  like  to  have  it  go.  We  are  simply  demanding  justice  for  these 
people. 

Xow,  let  us  come  down  to  the  question  at  issue.  If  you  have  in  a  Constitution 
language  which  has  been  construed  by  the  Supreme  Court  of  a  State,  will 
you  take  the  language  that  has  been  construed  as  a  safe  guide  or,  will 
you  take  the  language  of  the  court,  which  is  new  language,  and  which  can 
be  differently  construed?  That  is  the  proposition  before  us.  We  are  asking  you  to 
accept  language  that  has  been  construed.  On  the  other  hand,  these  gentlemen  are 
asking  you  to  take  the  language  of  a  court,  in  different  words,  which  has  not  been  con- 
strued. V\'e  say  that  if  you  want  safety,  if  you  want  what  you  claim  you  v-ant,  if  jo\i 
want  something  by  which  you  can  be  guided,  take  the  language  that  has  been  con- 
strued in  preference  to  that  which  has  not  been  construed.  Is  not  that  a  fair  proposi- 
tion to  anybodj'  who  wants  clearness  and  safety  and  a  guide? 

That  is  the  proposition  we  make  to  you.  We  say  this  language,  which  we  offer 
you  here  to-day,  is  in  the  Constitution  of  Mississippi  and  has  been  construed  by  the 
Supreme  Court  of  that  State.  ^ly  friend  from  Pulaski  (Mr.  Wysor)  says  that  as  it 
has  been  construed  that  way,  we  should  take  the  words  used  in  so  construing,  and 
not  the  language  that  has  been  construed.  But  the  language  of  construction  has  never 
itself  been  construed.  We  do  not  know  what  will  be  the  construction  put  upon  that 
language. 

So  we  say.  he  is  undertaking  to  put  in  language  here,  the  exact  meaning  of  which 
we  do  not  know.  He  is  asking  us  to  accept  new  language,  when  we  tender  you  old 
language — construed  language — accepted  language.    T\Tiat  do  you  lose  by  it? 

Mr.  Thorn:  Is  the  language  construing  the  language  in  the  Mississippi  article 
clear — the  language  used  by  the  Supreme  Court? 

Mr.  Meredith:  The  language  used  in  the  Constitution  of  Mississippi  is  clear  to  me, 
and  the  language  used  in  the  opinion  of  the  court  is  clear  to  me;  but  the  language  in 
the  opinion  of  the  court  of  Mississippi  cannot  be  clear  to  you,  if  the  language  in  the 
Constitution  of  ^Mississippi  is  not  clear  to  you.    That  is  the  difference, 

'Mr.  Thom:  If  the  committee  had  to  refer  to  the  construction  given  by  the  Supreme 
Court  of  ^Mississippi  to  make  clear  the  language  of  the  Mississippi  Constitution  whicli 
of  the  two  is  more  reliable  in  the  way  of  clearness? 

:\Ir.  Meredith:  I  have  never  said  it  was  necessary  to  refer  to  the  opinion  of  the 
court  of  Mississippi  in  order  to  get  clearness;  but  I  have  said  that  the  language  is 
clear,  and  that  we  add  to  the  clearness  of  the  language,  the  safety  of  construction. 


28^0 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Where  can  you  give  me  a  situation  as  strong  as  that.  I  put  clearness  plus  construc- 
tion against  your  simple  clearness,  as  you  call  it.  Which  is  the  better  to  take?  That 
is  what  we  are  asking  for  here,  that  you  will  take  language  that  has  been  construed, 
clear  language,  and  language  that  has  been  accepted,  the  full  force  and  effect  of  which 
has  been  defined  nd  stated  exactly. 

Suppose  we  take  the  suggestion  made  by  the  gentleman  from  Pulaski  that  it  shall 
not  be  "  a  bar."  I  am  not  going  to  undertake  to  criticise  the  courts,  but  surely  we 
believe,  and  we  have  the  right  to  believe  that  the  tendency  of  the  judicial  mind,  rightly 
or  wrongly,  is  against  the  rights  of  the  employees,  as  we  claim  them  to  be. 

I  say,  without  criticising  the  courts,  I  am  justified  in  saying,  that  the  judicial  mind 
of  this  country  is  against  the  rights  of  these  people,  as  we  regard  them.  They  say 
they  have  no  right  to  the  extent  to  which  we  claimed  them.  We  say  that  the  judicial 
constructions  from  the  Supreme  Court  of  the  United  States  down,  all  the  way  through 
all  the  States,  are  against  any  liberality  for  the  benefit  of  this  class  of  people. 

Now,  gentlfemen,  you  have  that  in  favor  of  the  corporations.  My  friend  from  Pu- 
laski has  that  clear  fact,  which  he  must  recognize,  that  the  tendency  of  the  courts 
is  to  so  construe  language,  as  to  limit  the  rights  and  remedies  which  these  people 
have.  They  have  from  time  to  time  differentiated  away  the  rights  these  people  have 
to  such  an  extent,  that  to-day  those  of  us  who  have  studied  this  matter  with  some 
care,  find  it  hard  to  tell  what  is  meant  by  an  assumed  risk,  and  how  far  the  doctrine 
of  assumed  risk  applies,  and  what  is  meant  by  a  safe  place,  and  how  long  the  place 
has  to  be  safe,  and  when  it  may  be  rendered  unsafe,  and  by  whom  it  may  be  so 
changed.  These  cross-currents  of  decisions  have  come  in  to  destroy  the  main  stream 
of  justice  to  such  an  extent  that  there  is  hardly  one  of  us  to-day  who  can  say  what 
is  the  right  of  a  man  upon  whom  the  doctrine  of  assumed  risks  is  applied,  and  to 
whom  the  doctrine  of  contributory  negligence  is  applied. 

Those  of  you  who  are  not  lawyers,  I  ask  you  to  bear  in  mind  this  fact:  There 
are  in  the  decisions  of  the  courts  two  principles,  which  are  recognized  as  lines  of 
defence  by  these  corporations  in  suits  brought  for  personal  injuries.  One  is  what  is 
called  assumed  risks;  the  other  what  is  called  "contributory  negligence."  The  as- 
sumed risk  amounts  to  this,  that  where  a  man  sees  a  piece  of  machinery  is  defective 
and  he  still  goes  to  work,  or  where  he  sees  the  occupation  in  which  he  is  engaged  is 
dangerous  and  he  continues  to  work,  he  assumes  the  risk,  that  is  naturally  attendant 
upon  it,  and  assumes  all  the  risks  that  may  come  from  defects  that  are  patent  and 
obvious.    That  is  the  doctrine  of  assumed  risk. 

On  the  other  hand,  the  doctrine  of  contributory  negligence  is  th'at  where  a  man 
has  been  injured  by  the  negligence  of  an  employee,  if  that  injury  has  been  assisted — 
not  caused,  but  if  it  has  been  assisted — by  his  own  want  of  care,  by  the  lack  of  per- 
formance of  his  own  duties,  by  what  we  call  his  negligence,  that  is  contributory  negli- 
gence; that  is,  he  has  assisted  or  contributed  to  that  extent.  Those  are  the  two  doc- 
trines. They  are  kept  separate  by  the  judges,  who  recognize  those  distinctions,  but 
they  are  not  always  kept  clear  by  some  of  the  judges.  They  speak  of  acts  of  assumed 
risk  as  being  contributory  negligence.  They  sometimes^  confound  these  two  doctrines, 
and  it  is  our  desire  that  they  shall  keep  these  things  separate. 

The  gentleman  from  Pulaski  has  said  that  a  man  with  full  knowledge  of  a  piece 
of  defective  machinery  can  go  on  and  work  under  this  proposed  substitute,  and  if  he 
gets  injured,  although  he  does  not  tell  the  master  about  the  defect,  he  can  recover. 
By  no  means;  and  the  gentleman  cannot  sustain  that  position.  In  opposition  to  it  I 
offer  the  decision  of  the  Supreme  Court  of  Mississippi.  If  he  is  not  willing  to  accept 
that,  I  will  offer  him  his  own  knowledge  of  these  principles..  Does  he  not  know  that 
it  is  the  duty  of  a  man,  and  that  the  rules,  to  which  he  refers,  require,  that  when  he 
is  acquainted  with  the  fact  that  a  piece  of  machinery  is  in  bad  order,  or  defective,  he 
must  report  it? 

What  is  negligence?    Negligence  is  nothing  but  the  failure  to  perform  a  duty: 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIPvGIXIA. 


28^1 


and  when  that  man  fails  to  perform  his  duty  of  giving  notice,  and  calling  attention  to 
the  defect,  and  giving  the  master  an  opportunity  to  remedy  it,  he  is  guilty  of  what 
is  called  contributory  negligence.  He  fails  in  his  duty,  he  is  guilty  of  an  act  of  negli- 
gence, and  he  contributes  to  the  accident. 

So  we  see  that  the  Mississippi  decision  is,  according  to  what  i;^  w.»ll  recognized 
in  the  profession,  that  when  a  man  is  guilty  of  an  act  of  negligence  himself,  he  can 
be  held  responsible  for  it,  and  that  the  master  is  released  thereby.  I  would  be  willing 
to  accept  the,  amendment  made  by  the  gentleman  from  Norfolk  (Mr.  Thom)  but  for 
the  fact  that  I  know  the  courts  do  confound  the  doctrine  of  contributory  negligence 
in  their  decisions,  with  the  doctrine  of  assumed  risks,  and  that  the  danger  would 
be  that  the  courts  would  say,  if  its  tendency  was  at  all  against  us,  "You  have  under- 
taken to  give  relief  here;  but  you  have  destroyed  it,  because  the  continuance  of  the 
performance  of  the  duty  with  knowledge  of  the  effect  is  contributory  negligence." 

We  say  mere  knowledge  shall  not  be  a  defence.  Why?  Does  not  every  one  of 
us  know  that  if  you  put  a  man  in  a  position  of  danger,  if  you  give  him  a  defective 
piece  of  machinery  with  which  to  work,  and  behind  them  there  is  the  necessity  of 
his  family  support  he  must,  he  will  go  on  with  his  work?  If  the  cry  of  the 
child  made  the  great  orator  of  England  become  the  orator  he  was,  the  cry  of  the 
child  behind  him  makes  the  humble  laborer  give  up  his  life.  Is  it  fair  that  you  should 
put  a  man  in  that  situation?  Is  it  fair  that  you  should  take  advantage  of  the  necessi- 
ties of  human  nature?  Is  it  fair  that  you  should  take  advantage  of  the  necessities  of 
human  nature?  Is  it  fair  that  you  should  encourage  brutality  and  inhumanity  in 
man,  or  is  it  fair  that  you  should  say  to  the  master,  "You,  who  furnish  the  machinery, 
you  who  can  give  better  machinery,  you  whose  duty  it  is  to  furnish  better  machinery 
shall  not  give  this  man  bad  machinery  simply  to  save  your  own  pocketbook,  and  then 
when  he  gets  hurt  by  this  injustice  of  yours,  you  shall  not  turn  around,  and  say  to 
him,  'You  saw  it,  and  you  had  the  opportunity  I  gave  you;  the  opportunity  to  go  out, 
even  if  it  should  be  to  starvation.'  " 

That  is  the  doctrine,  gentlemen,  we  are  opposing  here  to-day — a  doctrine  that  we 
submit  ought  never  to  have  been  recognized  in  the  law.  In  Massachusetts,  which  is 
said  to  have  been  the  home  of  this  doctrine,  in  England,  which  is  also  said  to  have 
been  the  birthplace  of  it  in  South  Carolina,  to  which  it  has  also  been  ascribed,  all 
three  of  them  have  refused  to  recognize  any  longer  this  doctrine,  except  as  one  to  be 
discountenanced,  if  not  denounced.  All  I  ask  of  you  gentlemen  is  to  say  that  knowl- 
edge shall  not  be  a  defence,  but  that  the  fact,  that  it  is  not  a  defence  as  an  assumed 
risk,  does  not  affect  the  doctrine  of  contiibutory  negligence,  because  when  the  doc- 
trine of  contributor}^  negligence  comes  in  there  is  an  act  of  the  employee  himself, 
which  is  outside  and  additional  to  mere  knowledge.  The  doctrine  of  contributory 
negligence  cannot  be  affected  by  this  substitute.  It  was  not  affected  by  these  words  in 
Mississippi. 

Under  such  circumstances,  gentlem.en,  ^-ou  are  giving  to  these  people  some  re- 
lief at  least;  although  not  as  much  as  we  think  you  ought  to  give  them.  You  are 
putting  it  in  your  Constitution,  just  as  properly  and  with  just  as  high  a  motive,  as 
vrhen  you  say  a  man's  property  shall  not  be  taken  for  public  purposes  without  due 
compensation.  Surely,  if  it  is  necessary  to  put  in  the  Constitution  some  provision 
to  protect  a  man's  property,  if  you  find  the  whole  tendency  or  doctrine  of  the  courts 
Is  to  allow  a  man's  life  to  be  taken  without  due  compensation,  it  is  necessary  to  have 
a  Constitutional  protection  to  stop  that  evil  also.  We  ask  that  you  will  accept  the 
language  that  has  been  offered  here  by  the  chairman  of  the  committee,  because  it 
fairly  and  clearly  defines  the  rights  of  these  people. 

r^Ir.  Thom:    Mr.  President,  the  policy  as  expressed  in  this  modification  of  the 
fellow-servant  doctrine  is  one  which  I  fully  recognize  this  Convention  has  accepted 
In  doing  this  the  Convention  has  departed  greatly  from  the  original  principles  which 
govern  the  relations  between  man  and  man.    The  great  principle  of  law  and  justice 
179 — Const.  Deb. 


2843  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

is  that  no  man  is  responsible  except  for  wrongs  committed  by  himself.  He  is  not  in 
law  or  in  justice  responsible  for  ^^'rongs  committed  by  someone  else.  That  funda- 
mental principle  is  in  a  measure  recognized  in  committee  because  they  have  made 
the  modification  of  it  only  partially  applicable.  It  still  remains  the  law  of  this  land 
that  I  am  not  responsible  for  somebodys  else's  wrong.  It  still  remains  the  law  of 
Virginia  that  the  farmer  is  not  responsible  for  the  negligence  of  one  of  his  em- 
ployees as  against  another.  It  still  remains  the  law  that  the  manufacturer  is  not  re- 
sponsible for  a  wrong  done  by  one  of  his  employees  to  another.  It  still  remains  the 
Jaw  that  the  car  builder  is  not  responsible  for  the  wrong  done  by  one  of  his  em- 
ployees to  another.  In  other  words  the  fundamental  doctrine  of  justice  and  of  right, 
that  a  man  is  responsible  only  for  his  own  wrongs,  finds  its  exception  and  its  modifi- 
cation only  when  you  are  dealing  with  railroad  companies. 

Mr.  Meredith:  Does  the  gentleman  announce  the  fundamental  doctrine  that  a 
man  is.  responsible  only  for  his  own  wrong,  and  not  for  that  of  an  agent? 

Mr.  Thom:    I  do. 

Mr.  Meredith:    That  is  a  fundamental  doctrine? 

Mr.  Thom:  Yes,  sir,  and  it  i{5  so  laid  down  by  the  highest  authorities  in  law  in 
this  country,  recognized  as  universally  applicable  and  as  finding  its  exceptions  only 
where  a  statute  or  a  Constitution  comes  and  takes  that  fundamental  right  away. 

I  do  not  refer  to  that  principle,  Mr.  President,  for  the  purpose  of  attempting  to 
prevent  the  assertion  of  that  exception  in  this  Constitution.  I  fully  recognize 
it  is  the  purpose  of  this  Convention  to  make  that  exception,  but  I  refer  td 
it  as  a  foundation  principle  which  we  should  bear  in  mind  and  which  should  guide 
us  as  to  the  direction  which  this  exception  should  intelligently  take  in  this  article, 
which  we  shall  ultimately  agree  upon. 

Starting,  then,  with  the  idea  universally  recognized  by  the  writers  on  law  that 
a  man  is  responsible  for  his  own  wrong,  that  a  company  is  responsible  only  for  its 
own  wrong,  and  recognizing  that  we  are  about  to  make  an  exception  to  that  law  and 
that  principle  as  applied  to  railroads,  let  us  find  out  how  far  that  exception  should  go. 

The  proposition  on  which  gentlemen  are  deboting  on  this  floor  is  one  about  which 
they  do  not  differ. 

On  the  one  side  the  gentleman  from  Pulaski  (Mr.  Wysor)  presents  the  proposition 
that  the  doctrine  of  contributory  negligence  should  not  be  interfered  with,  and  that 
that  fact  should  be  expressed  upon  the  face  of  the  article.  The  gentlemen  of  the 
other  side  take  the  position  that  the  doctrine  of  contributory  negligence  should  not 
be  interfered  with,  but  that  proposition  should  not  be  expressed  upon  the  face  of  the 
article,  and  there  is  the  issue:  Whether  or  not  you  shall  express  upon  that  article 
exactly  what  you  all  mean,  or  whether  you  shall  leave  that  as  a  question  of  judicial 
construction  and  interpretation. 

My  friend  from  Augusta  (Mr.  Braxton)  and  my  friend  from  Richmond  (Mr.  Mere- 
dith) argue  against  expressing  on  the  face  of  the  Constitution  the  proposition  that 
the  defence  of  contributory  negligence  shall  not  be  considered  as  Impaired.  My 
friend  from  Pulaski  argues  in  favor  of  putting  upon  your  Constitution  exactly  what 
you  all  say  upon  the  floor  it  means.  Now,  what  is  the  objection  to  pursuing  the  course 
suggested  by  the  gentleman  from  Pulaski?  Is  it  best  in  drawing  your  Constitution 
to  express  upon  its  face  exactly  what  it  is  agreed  on  all  hands  it  should  mean,  or  is 
it  best  to  leave  that  in  the  region  of  litigation  and  of  controversy? 

No  lawyer  of  experience  can  for  a  moment  sustain  the  position  that  he  can  be 
certain  as  to  the  result  of  legal  interpretation.  I  beg  to  call  your  attention  to  a  most 
distinct  expression  of  this  uncertainty  found-  in  the  recent  judicial  history  of  this 
country.  It  was  alluded  to  a  moment  ago  by  my  friend  from  Augusta,  but  I  wish 
to  call  your  attention  to  it  a  little  more  in  detail. 

The  State  of  Kentucky  adopted  into  its  law  the  exact  language  of  the  Interstate 
Commerce  law.    The  Interstate  Commerce  law  had  been  construed  time  after  time 


DEBATES  OE  THE  COXSTITrTIOXAL  COXYEXTIOX  OE  TERGIXIA. 


2843 


"by  the  Supreme  Court  of  the  United  States,  which  was  the  court  or  the  jurisdiction 
vrhich  gave  it  birth.  That  court  had  decided  that  the  words  contained  in  a  statute 
of  the  United  States  in  reference  to  the  long  and  short  haul,  which  permitted  a  dif- 
ference of  rates  under  substantially  different  circumstances  and  conditions,  a  lower 
rate  for  a  longer  distance  under  substantially  different  circumstances  and  conditions, 
as  embracing  competition  and  making  competition,  and  as  competition  making  sub- 
stantially different  circumstances  and  conditions.  Now.  with  that  interpretation  by 
the  Supreme  Court  of  the  United  States,  the  State  of  Kentucky  adopted  the  exact 
language  of  the  Interstate  Commerce  law,  and  its  court  construed  this  adopted  statute 
of  the  United  States  as  excluding  competition  instead  of  including  competition,  as 
held  by  the  Supreme  Court  of  the  United  States.  That  decision  of  the  Supreme  Court 
of  Kentucky  went  again  to  the  Supreme  Court  of  the  United  States,  and  although  it 
was  in  the  direct  teeth  of  its  previous  construction  of  its  own  statute,  th.e  Stipreme  Court 
held  itself  to  be  bound  by  the  construction  of  the  Kentucky  court,  and  is  now  in  the 
position  of  construing  that  language  at  one  time  as  including  competition,  but,  as 
used  in  the  Kentucky  Constitution,  as  excluding  competition. 

With  that  fact  staring  us  in  the  face,  with  the  uncertainty  of  our  being  able  to 
forecast  what  a  court  may  determine,  how  can  it  be  safely  relied  on  that  the  Vir- 
ginia Court  of  Appeals  will  follow  the  ^vlississippi  Court  of  Appeals  in  making  this 
interpretation,  and  if  it  does  not,  where  will  we  be? 

If  the  Supreme  Court  of  our  State  says  it  is  not  bound  by  the  construction  given 
to  this  law  in  the  State  of  Mississippi,  and  construes  it  as  destroying  the  doctrine  of 
contributory  negligence,  where  will  my  friend  from  Richmond  and  my  friend  from 
Augusta  be?  They  will  have  put  into  the  State  a  doctrine  which  they  are  repudiat- 
ing upon  the  floor  and  which  they  are  declaring  to  be  unjust.. 

The  language  suggested  in  this  amendment  merely  writes  upon  the  face  of  the 
law  the  interpretation  which  the  Mississippi  court  has  given  it.  It  merely  carries 
out  what  my  friend  from  Augusta  is  here  saying  is  the  proper  policy  in  regard  to  this 
matter.    The  very  first  sentence  he  reads  from  this  decision  is  as  follows: 

Thie  effect  of  this  is  not  to  destroy  the  defense  of  contributory  negligence  by  a  rail- 
road company,  but  merely  to  abrogate  the  previously  existing  rule  that  knowledge  by 
an  employee  of  the  defective  or  unsafe  character  or  condition  of  the  machinery,  ways, 
or  appliances  shall  not  of  itself  bar  a  recovery. 

That  is  what  is  intended  to  be  put  in  this  law.  and  my  friend  from  Richmond 
rises  upon  this  floor  and  deliberately  argues  before  this  intelligent  assembly  that  it  is 
safer  to  put  into  the  Constittition  of  this  State  language  which  required  interpretation 
in  Mississippi,  which  was  argued  for  and  against  before  the  Supreme  Court  of  that 
State,  which  one  set  of  people  was  contending  meant  one  thing  and  another  set  of 
people  was  contending  meant  another  thing,  and  with  the  power  still  in  our  court 
to  take  either  horn  of  that  dilemma. 

Now.  gentlemen,  is  it  the  proper  and  just  and  wise  course  on  the  part  of  the  Con- 
vention to  take  language  which  was  uncertain  in  :\Iississippi,  which  was  once  put  in 
the  region  of  legal  controversy  there,  which  required  deliverance  of  their  Supreme 
Court  to  interpret,  and  to  place  it  here  in  the  laws  of  A'irginia,  where  it  will  still  be 
open  to  litigation,  to  legal  controversy  and  dispute,  or  is  it  best  to  define  it  here 
upon  the  face  of  this  article  and  to  say  that  nothing  that  we  do  here  is  intended  to 
interfere  with  the  principles  of  contributory  negligence?  That  is  the  simple  ques- 
tion. Vv'e  are  all  agreed  that  it  should  not  interfere  with  the  defense  of  contributory 
negligence.  V^e  all  say  that  that  would  be  unjust.  It  reduces  itself  at  last  to  the 
simple  question  of  whether  it  is  best  for  us  to  write  out  what  we  mean  on  the  face 
of  our  Constitution,  or  shall  we  depend  upon  the  uncertain  reliance  of  our  Court  of 
Appeals  following  the  doctrine  announced  by  the  Supreme  Court  of  Mississippi? 

Mr.  Harrison:    Has  not  our  Court  of  Appeals  held  that  knowledge  of  itself  is 


2844 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 


contributory  negligence?  If  you  put  that  language  in,  then  you  contradict  in  terms 
what  you  have  said  above,  that  that  knowledge  itself  shall  not  bar  recovery. 

Mr.  Thorn:  By  no  means.  My  friend  here  has  argued  that  it  is  a  confusion  of 
the  two  ideas  of  assumed  risk  and  contributory  negligence;  that  when  you  say  knowl- 
edge shall  not  of  itself  bar  recovery,  but  this  shall  not  interfere  with  contributory 
negligence,  of  course  it  only  makes  that  distinction  clear;  but  I  would  be  v/illing  to 
meet  the  very  point  suggested  by  my  friend.  I  would  be  willing  to  say  that  knowledge 
offered  by  itself  should  not  be  construed  to  be  contributory  negligence.  What  I  want 
is  to  make  this  matter  clear  upon  the  fact  of  the  Constitution,  and  for  us  not  to 
rely  upon  a  mere  decision  of  another  State;  because  what  my  friend  from  Winchester 
(Mr.  Harrison)  implies  by  his  (iuestion  is  met  by  the  position  of  the  chairman  of  the 
committee  that  what  he  means  by  what  is  written  here,  is  that  the  effect  is  not  to 
destroy  the  defense  of  contributory  negligence. 

If  that  be  true  then,  this  same  contradiction  created  by  the  decisions  that  my 
friend  referred  to  in  Virginia  and  by  the  language  of  this  Constitution,  exists  whether 
you  leave  it  in  is  present  uncertain  and  ambiguous  form,  or  whether  you  put  it  in  the 
clear  language  suggested  by  my  friend  from  Pulaski,  because  if  the  interpretation  of 
the  language  already  used  is  not  to  impair  the  doctrine  of  contributory  negligence,  and 
the  language  already  used  is  that  knowledge  shall  not  be  a  defense,  then  there  is  your 
contradiction  just  as  clearly  as  if  it  were  expressed  upon  the  face  of  the  article.  What 
I  am  anxious  to  do  is  to  have  mere  knowledge  not  contributory  negligence,  and  that 
the  doctrine  of  contributory  negligence  shall  still  exist  in  the  State  of  Virginia. 

Mr.  Meredith:  You  have  repeated  that  idea  tv^^ice,  that  you  would  be  willing  to 
put  in  there — 

Mr.  Thorn:  I  am  glad  my  friend  recognizes  it,  because  he  seldom  thinks  I  agree 
with  any  idea  suggested,  and  I  had  been  in  hope  he  had  not  understood  it. 

Mr.  Meredith:  I  understood  it,  but  I  did  not  agree  with  you.  What  I  understood 
you  to  say  twice  was  that  you  would  be  willing  to  put  in  there  that  knowledge  shall 
not  be  contributory  negligence. 

Mr.  Thom:    Not  by  itself. 

Mr.  Meredith:  And  then  at  the  bottom:  "Nothing  in  this  section  shall  impair 
the  doctrine  of  contributory  negligence."  Then  the  court  would  say  that  knowledge 
Is  an  assumed  risk.  You  have  excluded  it  as  a  doctrine  of  contributory  negligence, 
T3ut  you  leave  it  in  as  assumed  risk.  We  had  better  stick  to  the  language  we  have. 
The  suggestions  you  make  are  too  dangerous. 

Mr.  Thom:  Perhaps  so,  and  I  am  arguing  for  the  other  position,  where  you  will 
separate  the  doctrine  of  assumed  risk  and  the  doctrine  of  contributory  negligence, 
and  have  it  declared  upon  the  face  of  this  Constitution  that  the  doctrine  of  contribu- 
tory negligence  is  not  destroyed.  Did  I  not  understand  my  friend  from  Richmond  to 
say  that  is  right? 

Mr.  Meredith:    Undoubtedly;  that  it  is  not  destroyed. 

Mr.  Thom:  Exactly.  My  friend  from  Richmond  then  admits  that  the  doctrine  of 
contributory  negligence  ought  not  to  be  destroyed,  and  he  says  it  is  not  destroyed. 

Mr.  Meredith:  Provided,  of  course,  the  court  does  not  undertake  to  confuse  an 
assumed  risk  and  contributory  negligence.  We  do  not  desire  the  doctrine  of  con- 
tributory negligence  abolished. 

Mr.  Thom:  Just  there,  to  divert  one  moment,  I  want  to  ask  the  gentleman  why 
it  is  so  safe  to  rely  on  the  distinctions  to  be  drawn  by  a  court  with  reference  to 
whether  or  not  they  will  follow  the  doctrine  of  Mississippi,  when  he  is  accusing  the 
same  courts  of  mixing  these  two  doctrines  of  assumed  risk  and  contributory  negli- 
gence.   Why  leave  us  to  a  decision  of  a  court  upon  a  litigated  and  disputed  question? 

Why  relegate  this  subject  to  a  litigated  and  confused  and  uncertain  condition  in 
the  decision  of  a  court  when  we  can  take  our  pen  now  and  write  out  what  we  mean  in 
the  Constitution  itself? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


2845 


Mr.  Meredith:  I  simply  say  you  misunderstood  me  and  misstated  me,  because  you 
said  I  had  said  the  Mississippi  court  had  misconstrued  the  doctrine.  I  have  not  said 
that.  I  have  said  the  Mississippi  court  put  a  proper  construction  on  the  language  that 
was  very  clear. 

Mr.  Thorn:  I  have  never  said  you  said  the  Mississippi  court  misconstrued  the 
doctrine.  I  say  what  you  have  said  is  that  the  courts — and  I  assume  you  mean  the 
courts  of  Virginia — have  mixed  the  doctrine  of  assumed  risk  and  contributory  negli- 
gence; and  if  I  am  mistaken  in  that  being  the  understanding  of  the  gentleman's  re- 
marks, I  wish  he  would  correct  me. 

If  that  be  true,  if  the  Court  of  Appeals  of  Virginia  or  any  other  court  has  confused 
those  doctrines,  my  proposition  is  it  is  not  safe  in  a  matter  of  this  kind  simply  to 
leave  this  great  question  to  judicial  determination,  when  we  can  now  write  out  an 
article  about  which  there  can  be  no  ambiguity.  If  these  gentlemen  mean  that,  let  us 
say  it.  Let  us  be  brave  enough  to  interpret  it  and  brave  enough  to  write  into  this 
Constitution  what  we  mean.  If  we  do  not  mean  it,  then  let  us  fight  out  the  question 
on  the  principle  of  understanding  that  they  mean  one  thing  and  we  mean  another, 
but  do  not  let  us,  as  lawyers  capable  of  making  an  intelligent  draft  of  this  section, 
dispute  over  whether  we  shall  put  into  the  Constituion  vrhat  we  mean  or  leave  it  in. 
the  region  of  judicial  interpretation. 

I  hope  the  amendment  of  the  gentleman  from  Pulaski  will  be  adopted. 

Mr.  George  K.  Anderson:  Mr.  President  and  gentlemen,  I  hope  the  amendment 
offered  by  my  friend  from  Pulaski  (Mr.  Wysor)  will  not  prevail.  This  matter  has 
been  under  discussion  and  consideration  by  the  committee  having  it  in  charge  for  a 
long  time.  It  has  not  only  engaged  the  attention  of  that  committee  and  all  of  its 
members,  but  it  has  engaged  the  attention  also  of  a  number  of  gentlemen,  members  of 
this  body,  and  deeply  interested  in  this  question. 

My  friend  from  Pulaski  proposes  to  strike  out  the  language  "  shall  be  no  defense  " 
and  insert  "  shall  be  no  bar,"  and  the  question  is  what  is  the  difference  between  those 
two  expressions. 

Mr.  R.  Walton  Moore:  Before  my  friend  enters  upon  the  discussion,  I  am  not  a 
member  of  the  committee  to  which  he  has  alluded,  and  I  wish  to  ask  whether  he  is 
able  to  state  hov.-  the  committee  stands  upon  these  two  competing  propositions,  both  of 
which  emanate  from  the  committee. 

:Mr.  William  A.  Anderson:  As  I  understand,  the  committee  did  not  prepare  this 
substitute.    It  was  prepared  by  one  member  of  the  committee. 

Mr.  R.  Walton  Moore:  I  understood  the  gentleman  from  Alleghany  (Mr.  Ander- 
son) to  appeal  to  the  Convention  to  sustain  the  work  of  the  committee.  It  struck  me 
that  he  was  assuming  that  the  work  of  the  committee  was  represented  by  the  resolu- 
tion that  the  chairman  of  the  committee  has  offered  as  a  substitute  this  morning. 
Then  it  became  vital  to  inquire  what  is  the  work  of  the  committee,  whether  it  is  the 
original  report,  or  whether  it  is  this  substitute  resolution. 

Mr.  George  K.  Anderson:  I  understand,  Mr.  President  that  the  majority  of  the 
members  of  the  committee  were  in  favor  of  the  use  of  the  language  employed  by  the 
Constitution  of  Mississippi,  because  that  language  has  been  construed  by  the  Supreme 
Court  of  the  State  of  Mississippi,  and  meant  exactly  what  not  only  every  member  of 
the  committee  but  the  opponents  of  this  measure  think  it  ought  to  mean. 

Mr.  President,  however  that  may  be,  I  am  satisfied  that  those  gentlemen,  if  they 
will  carefully  consider  this  question,  will  come  to  the  conclusion  that  there  is  here 
practically  a  distinction  without  a  difference  and  that  the  language  which  it  Is  safest 
for  us  to  use  in  this  Constitution  is  the  language  which  has  been  construed  by  the 
court.  My  friend  from  Russell  (Mr.  Stuart)  asked  me,  while  in  my  seat,  what  was 
meant  by  the  language  "  shall  be  no  defence,"  and  I  should  like  to  have  the  attention 
of  the  gentlemen  to  this  question,  because  it  is  one  of  very  great  importance.  If  this 
employers'  liability  bill  means  anything,  if  it  is  to  mean  anything  to  the  employes  ot 


2846  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  railroads  of  this  Commonwealth,  it  is  enough  to  demand  your  consideration  and 
protection. 

What  does  this  word  "defence"  mean?  Does  it  mean  that  when  an  action  is 
brought  by  an  employe  against  a  railroad  company  no  evidence  can  be  introduced  to 
the  effect  that  the  injured  employe  had  knowledge?  It  has  been  so  contended,  but  it 
does  not  mean  that  at  all.  It  simply  means,  as  the  Supreme  Court  of  Mississippi  says 
it  means,  that  it  shall  be  no  bar  to  a  recovery,  but  that  the  court  may  consider  the 
fact  of  knowledge  as  one  element  in  establishing  the  fact  of  contributory  negligence, 
which  is  a  complete  defence  in  the  hands  of  the  defendant;  and  that  is  the  entire 
difference  between  the  two  expressions.  I  ask  any  lawyer  in  this  body,  has  knowledge 
ever  been  a  bar  in  Virginia,  as  we  speak  of  a  bar?  Does  knowledge  on  the  part  of  the 
plaintiff  in  an  action  for  damages  against  the  master  bar  recovery  like  the  statute  of 
limitations,  when  pleaded? 

Is  it  a  complete  defence  in  itself?  It  has  never  been  so  held  in  this  State  or  any- 
where else  that  I  know  of.  Then  if  it  is  not  a  bar,  vv^hat  do  you  mean  by  using  the 
language  "  shall  not  be  a  bar."  What  will  our  courts  say?  The  Supreme  Court  of 
Appeals  of  Virginia,  in  construing  this  section,  if  we  write  it  as  my  friend  from 
Pulaski  would  have  us  write  it,  would  say  that  the  Constitutional  Convention  of  Vir- 
ginia did  not  intend  to  adopt  the  Mississippi  construction  of  this  law,  but  intended  to 
leave  the  doctrine  of  knowledge  just  where  it  is  to-day,  to-wit,  an  assumed  risk  that 
meets  the  employe  on  the  very  threshold  of  his  case;  and  the  court  will  not  reacfi 
into  or  inquire  into  the  field  of  contributory  negligence  at  all.  Why,  contributory 
:negligence,  Mr.  President,  is  a  defence  to  be  set  up  by  the  railroad  company.  When 
ah  employe  is  hurt,  under  the  doctrine  of  Jackson's  case,  laid  down  by  our  Supreme 
Court,  the  employe  must  allege  and  prove  that  he  did  not  have  knowledge,  as  an 
affirmative  proposition. 

Mr.  Wysor:  If  you  are  opposed  to  the  language  which  I  have  offered  as  an 
amendment  to  the  chairman's  present  ordinance,  why  did  you  vote  for  my  language 
in  the  Committee  of  the  Whole?  When  you  voted  in  Committee  of  the  Whole  you 
voted  for  the  section  I  am  offering. 

Mr.  George  K.  Anderson:  There  was  no  amendment  offered  in  Committee  of  the 
Whole,  and  I  will  say  to  my  friend,  and  it  will  be  no  breach  of  confidence  to  say  so, 
that  it  was  understood  between  the  friends  of  the  measure  that  we  would  have  to 
discuss  this  matter,  that  we  would  offer  no  amendment,  but  would  wait  until  the 
matter  came  up  in  the  Convention.    That  is  my  reply  to  my  friend  on  that  point. 

Now,  Mr.  President  and  gentlemen,  I  say  there  is  not  a  lawyer  on  this  floor  who 
does  not  believe  the  construction  put  by  the  State  of  Mississippi  upon  the  language 
used  in  the  Constitution  of  Mississippi  is  the  fair  and  proper  construction.  We  offer 
you  the  language  of  the  Mississippi  Constitution  with  the  court's  construction  upon 
it.  We  say  upon  this  floor  that  is  what  we  want,  and  that  is  what  we  think  the  lan- 
guage means;  and  if  the  Convention  adopts  it,  it  adopts  that  language  as  construed 
by  the  Supreme  Court  of  Mississippi.  Under  those  circumstances,  can  it  be  supposed 
for  a  minute  that  the  Supreme  Court  of  this  State  will  adopt  any  other  construction? 
Put  if  you  deviate  from  the  language  of  the  Mississippi  Constitution,  then  this  de- 
cision will  not  be  worth  a  nickel.  The  Court  will  not  feel  itself  bound  by  it,  even 
as  persuasive.  It  will  say  you  have  not  adopted  the  language  of  the  Mississippi  Con- 
stitution, and  this  case  is  not  applicable  to  it.  We  ask  you,  therefore,  to  adopt  the 
language  which  has  already  been  construed  and  about  which  there  can  be  no  dispute. 
I  want  now  to  call  your  attention  to  some  significant  figures. 

My  friend  from  Norfolk  (Mr.  Thom)  says  it  is  a  fundamental  principle  that  a 
man  is  responsible  only  for  his  own  acts.  My  friend  from  Richmond  (Mr.  Meredith) 
seems  to  question  that  as  a  fundamental  principle.  I  do  not.  Originally  a  man  was 
only  responsible  for  his  own  acts;  but  with  progress,  men  were  held  responsible  for 
the  acts  of  their  servants,  and  out  of  that  grew  the  doctrine  of  "respondeat  superior." 


DEBATES  OF  THE  COivrSTITUTIOXAL  COXVEXTIOJ^  OF  VIRGINIA.  2847 

Then  the  further  doctrine  grew  up  that  a  man  was  not  responsible  to  his  servant 
for  the  negligence  of  another  servant,  and  that  was  Priestly  vs.  Fowler.  Enlarged 
and  great  numbers  of  men  were  engaged  in  the  service  of  one  common  master  the 
friends  of  an  enlightened  public  policy  put  in  force  the  doctrine  of  fellow-servant, 
and  the  liability  of  the  master  for  the  acts  of  a  fellow-servant.  At  first  it  was  held 
that  if  a  servant  occupied  a  superior  position  to  the  servant  injured,  the  master  should 
respond.  I  say  in  the  beginning  that  began  to  be  the  doctrine,  and  it  was  the  doctrine 
in  Virginia  up  to  twelve  years  ago,  and  that  as  to  a  servant  in  a  different  department, 
not  in  touch,  a  perfect  stranger  to  the  servant  injured,  the  master  should  be  responsible 
for  his  carelessness  and  his  negligence. 

And  so  the  doctrine  has  grown  from  year  to  year  until  some  few  years  ago,  in 
this  Stale,  our  Supreme  Court  savv^  fit  to  take  a  step  backwards,  over  fifty  years,  and 
iv  establish  as  a  part  of  our  Virginia  law  the  doctrine  of  Priestly  vs.  Fowler. 

^^^ow,  let  us  see  why  an  exception  should  be  made  against  railroads  in  these  cases. 
My  friend  from  Norfolk  says  the  doctrine  will  remain  the  same  as  to  farmers,  the  doc- 
trine will  remain  the  same  as  to  car  builders,  the  doctrine  will  remain  the  same  as 
to  all  other  classes  of  people  except  railroads.  Why.  Surely  there  is  some  reason  for 
this.  The  Supreme  Court  of  the  United  States  says  it  is  lawful  and  fair  and  right. 
Why?  I  vrill  tell  you.  Year  before  last,  gentlemen,  there  were  employed  in  this 
country  nearly  one  million  men  by  the  railroad  corporations  of  this  country,  from 
president  down,  including  officers  and  agents  and  servants  in  all  capacities  in  all 
the  departments,  and  one  out  of  every  twenty-five  of  them  v/as  hurt  or  killed. 

]  may  as  well  be  accurate.  I  have  the  exact  figures,  and  I  am  giving  these  figures 
not  bec-^use  I  have  anything  against  railroad  companies;  they  have  always  been  very 
good  to  me,  but  I  am  very  much  interested  in  the  great  army  of  employes  who  are 
working  for  the  railroad  companies. 

I  said  that  in  188  there  were  nearly  a  million.  To  be  exact,  in  1899  there  were 
9l'S,!»24  employees  of  railroads  in  this  country.  The  number  killed  and  injured  was 
36,033  that  year,  1  in  26.    Do  they  need  protection? 

In  1896,  v/hich  was  the  j^ear,  I  believe,  in  which  the  case  of  Railroad  Company 
against  Houchins  was  decided  there  were  4,469  miles  of  railroad  operated  in  the  State 
of  Virginia,  and  there  were  784  people  killed  and  injured,  1  for  every  5.7  miles  of 
railroad  operated  in  Virginia. 

In  1897  there  were  4,500  miles  of  railroad  and  966  people  were  killed  and  injured, 
or  1  for  every  4.6  miles. 

Notice  the  increase.  In  1898  there  v/ere  4,555  miles  of  railroad  and  1,072  people 
killed  and  injured,  or  1  for  every  4  1-3  miles  of  road. 

In  1899  there  were  4,589  miles  of  road,  and  1,261  people  were  killed  and  injured, 
or  1  for  every  3.7  miles. 

In  1900  there  were  4,700  miles  of  road,  and  1,610  people  killed  and  injured,  or  1 
for  every  2.9  miles. 

If  this  thing  keeps  on,  they  will  kill  or  hurt  one  next  year  for  every  mile.  There- 
fore I  say  an  enlightened  public  opinion  demands  that  there  should  be  some  legisla- 
tion upon  this  subject  to  require  of  the  railroad  companies  a  greater  degree  of  care 
than  they  have  exercised  heretofore  towards  these  employees;  and  all  this  measure 
does  is,  not  to  abolish  contributory  negligence,  but  to  re-establish  the  doctrine  in  Vir- 
ginia as  it  was  established  some  twelve  years  ago,  and  that  is  all. 

I  hope  the  Convention  will  not  adopt  the  amendment  offered  by  my  friend  from 
Pulaski,  which  I  believe  will  have  the  effect  of  allowing  our  courts  in  this  Common- 
wealth to  say  that  knowledge  on  the  part  of  an  employee  of  a  defect  is  an  assumed 
risk  in  the  future,  as  it  is  now;  and  I  believe  our  courts  will  say  it  if  you  use  the 
language  "shall  not  be  a  bar,"  because  our  courts  will  say  it  is  not  a  bar  to-day,  it 
never  has  been  a  bar,  the  Constitutional  Convention  knew  it  was  not  a  bar,  and 
therefore  the  Constitutional  Convention  did  not  intend  to  interfere  with  the  doctrine 
of  assumed  risk. 


2848  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Our  purpose  is  to  abolish  the  doctrine  of  assumed  risk  in  this  case  where  the 
employee  has  knowledge — abolish  it  as  the  doctrine  of  assumed  risk  and  allow  the 
railroad  company  to  set  it  up  as  a  doctrine  of  contributory  negligence.  As  my  friend 
from  Richmond  has  observed,  the  courts  have,  frequently  confounded  the  doctrines  of 
assumed  risk  and  of  contributory  negligence;  and  I  trust  the  Convention  will  vote 
down  the  amendment  offered  by  the  gentleman  from  Pulaski. 

Mr.  Wysor:  Mr.  President,  I  will  not  detain  the  Convention  but  a  moment.  I 
am  not  in  a  condition  for  speaking. 

The  gentleman  from  Richmond  stated  that  I  censured  the  chairman  of  the  com- 
mittee. I  do  not  think  my  remarks  were  subject  to  that  construction.  I  do  not  mean 
to  censure  him  at  all.  I  simply  stated  he  had  taken  different  positions  on  the  subject 
now  before  the  Convention.  As  a  rule  I  have  great  respect  for  his  judgment,  but 
when  he  goes  first  one  vv^ay  and  then  the  other,  such  vacillation  impairs  the  weight 
of  his  judgment. 

I  am  simply  asking  the  Convention  to  do  what  the  Committee  on  Corporations  did. 
1  say  there  is  no  question  how  the  Committee  on  Corporations  stood.  Here  is  its 
report.  The  chairman  when  he  offered  his  resolution  did  not  pretend  to  say  that  his 
committee  was  for  it.  I  like  to  agree  with  the  chairman,  but  when  the  chairman 
abandons  his  committee  the  committee  will  abandon  him.  His  committee  had  sup- 
ported him  in  making  that  report.  He  was  for  it.  Why  does  he  abandon  his  com- 
mittee? 

Now,  gentlemen,  the  gentleman  from  Norfolk  argued  this  m^atter  very  clearly  to 
you.  The  provision  in  the  Mississippi  Constitution  was  of  a  character  that  needed 
construction.  The  court  had  to  say  what  it  meant.  The  Supreme  Court  of  Mississippi 
said  it  meant  that  knowledge  of  defective  machinery  should  not  of  itself  bar  a  re- 
covery, and  we  took  that  language  construing  the  Mississippi  Constitution  and  put 
it  in  our  report.  Now,  in  order  to  go  back  to  the  Mississippi  Constitution,  which 
needs  construction  what  do  they  tell  you?  They  say  when  the  Virginia  courts  come 
to  construe  it  they  will  turn  to  the  Mississippi  decision  and  see  what  it  means.  Then 
why  not  put  the  language  of  the  Mississippi  court  in  the  Constitution,  and  our  courts 
will  not  have  to  turn  to  this  Mississippi  court  decision  to  see  what  it  means.  It  will 
have  its  meaning  right  there  in  the  Constitution,  but  they  want  to  adopt  the  lan- 
guage of  the  Mississippi  Constitution  and  by  an  indirect  method  incorporate  a  de- 
cision of  the  Mississippi  Supreme  Court  into  our  Constitution. 

We  do  not  know  that  our  Supreme  Court  will  examine  the  Mississippi  decision, 
or  that  it  will  be  bound  by  it,  if  it  does  examine  it,  and  if  we  put  the  language  of 
the  Supreme  Court  of  Mississippi  into  the  Constitution  it  is  bound  by  the  language 
because  it  is  there  in  the  Constitution.    There  is  no  construction  about  it. 

I  submit  we  are  only  asking  this  Convention  to  stand  by  what  it  has  previously 
done,  and  put  this  just  provision  in  the  Constitution.  I  say  the  language  offered  by 
the  gentleman  from  Staunton  (Mr.  Braxton)  means  that  knowledge  of  defective  mach- 
inery shall  be  no  defence  at  all.  That  is  what  it  says.  The  Mississippi  court  has 
put  a  different  construction  upon  it,  but  we  cannot  say  that  our  court  will  put  that 
same  construction  upon  it. 

Mr.  George  K.  Anderson:  Do  you  think  the  Supreme  Court  of  Virginia  would  put 
any  other  construction  upon  it  when  the  Convention  that  makes  the  law  has  put  that 
construction  upon  it? 

Mr.  Wysor:  I  think  that  when  I  am  going  to  make  a  provision  to  go  into  the 
Constitution,  I  am  going  to  know  what  it  means.  I  am  not  willing  to  put  a  provi- 
sion in  the  Constitution  that  needs  construction. 

Mr.  George  K.  Anderson:  I  wish  to  ask  my  friend  whether  the  Supreme  Court 
will  not  be  called  upon  to  construe  the  language  he  proposes  to  put  in,  "a  bar." 

Mr.  Wysor:    No,  sir;   I  think  not. 

Mr.  George  K.  Anderson:    Will  you  tell  this  Convention  what  that  word  means? 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIRGIXIA.  2849 

Mr.  Wysor:  The  provision  means  exactly  what  it  says.  I  have  argued  that  here 
at  length,  that  it  shall  not  of  itself  he  a  bar,  but  taken  in  connection  with  other  facts 
and  circumstances,  might  bar  recovery.    That  is  what  it  means. 

Mr.  George  K.  Anderson:    Why  do  you  not  put  it  in  in  that  way? 

Mr.  Wysor:  There  is  no  necessity  to  do  it.  YVe  take  it  from  the  decision  of  the 
Mississippi  court  construing  the  language  which  you  want  to  put  in  here.  In  other 
words,  you  put  doubtful  language  in  the  Constitution.  You'  admit  what  that  language 
means,  and  we  take  the  meaning  and  put  it  in  the  Constitution  instead  of  the  lan- 
guage itself. 

Mr.  George  K.  Anderson:    You  do  not  take  ail  of  it. 

Mr.  Wysor:  That  is  exactly  what  we  are  doing.  You  v/ant  to  put  doubtful  lan- 
gruage  in.  "You  say  a  court  has  construed  it  and  construed  it  properly.  Then  we  take 
the  language  of  the  court  instead  of  the  doubtful  language  of  the  Mississippi  Consti- 
tution, which  had  to  be  construed  before  its  meaning  was  ascertained. 

Now,  gentlemen,  are  you  going  to  do  Vv'hat  you  have  already  done?  That  is  what 
I  want  to  know.  Are  you  going  back  on  the  Committee  on  Corporations  and  on  the 
Committee  of  the  Whole.  My  amendment  simply  restores  the  original,  which  the 
Committee  on  Corporations  adopted,  and  which  the  Committee  of  the  Whole  adopted, 
and  which  the  chairman  supported.  I  know  his  views  have  been  in  favor  of  it.  Are 
we  to  follow  the  chairman?  He  is  a  good  leader,  but  when  a  man  goes  one  way  and 
then  wheels  around  the  other  way,  and  then  back  again,  how  are  you  going  to  keep 
up  with  him?  I  cannot  keep  up  with  him.  I  submit  we  ought  to  sustain  the  origi- 
nal report  which  is  in  effect  the  amendment  I  have  offered.  I  think  we  ought  also 
to  put  that  second  amendment  in  I  have  offered,  that  the  doctrine  of  contributory 
negligence  shall  not  be  impaired.  They  admit  it  does  not  destroy  contributory 
negligence.  Well,  why  do  they  not  say  it  in  so  many  words?  They  do  not  give  you 
any  reason  for  not  saying  it.  They  simply  get  up  and  argue  that  this  provision  does 
not  affect  the  question  of  contributory  negligence.  If  it  does  not,  then  I  submit  to 
the  Convention  that  it  does  no  harm  to  say  that  it  shall  not  impair  that  doctrine  and 
leave  no  doubt  or  question  whatever  upon  that  subject. 

Before  I  close  I  want  to  say  that  I  am  as  much  in  favor  of  getting  a  good  article 
for  the  employees  as  anybody.  This,  as  is  well  known,  has  been  my  position  all  the 
time.  We  have  a  good  article  and  the  Legislature  can  enlarge  it  if  it  sees  proper, 
but  I  do  not  intend  to  go  too  far  with  the  matter.  I  think  other  gentlemen  are  as 
patriotic,  and  just  as  I  am,  but  I  know  that  sometimes  when  men  get  started  against 
corporations  they  will  go  just  as  far  as  possible.  They  have  seen  that  the  temper  of 
this  body  was  to  support  this  report  from  beginning  to  end.  Seeing  how  strong  the 
sentiment  was  in  favor  of  it,  they  thought  they  might  get  a  more  drastic  provision 
ou  this  question  of  knowledge  or  defective  machinery.  The  chairman,  flushed  with 
previous  victories,  which  his  committee  aided  in  achieving,  thinks  he  can  carry  any- 
thing before  the  body,  and  these  gentlemen  who  are  supporting  him,  believe  the  same, 
with  their  aid  and  help. 

I  submit  they  ought  to  be  turned  down  a  little,  and  it  will  be  good  for  them. 
Mr.  Withers:  We  have  heard  a  great  deal  about  assumed  risks,  and  contribu- 
tory negligence  and  a  defense  to  an  action.  I  want  to  submit  to  you  gentlemen  who 
are  not  lawyers,  that  the  utmost  that  this  language  can  mean  is  this:  If  I  am  em- 
ployed in  the  running  of  a  railroad  train,  or  in  its  physical  construction,  and  I  go 
to  my  employer  and  say,  "Mr.  Blank,  this  brake  is  out  of  fix,"  and  Mr.  Blank  tells  me, 
"You  go  ahead  and  work  on  it;  we  will  fix  it,"  and  he  does  not  fix  it,  my  knowledge 
of  that  brake  being  out  of  fix  shall  not  prevent  my  recovering  for  an  injury  against 
that  railroad  company  if,  after  I  have  such  knowledge,  I  use  a  proportionate  care  that 
keeps  up  with  the  rate  of  knowledge  that  I  have;  and  that  is  common  justice  and 
common  equity. 

I  say,  therefore,  to  you  gentlemen  who  are  not  lawyers,  all  this  talk  about  as- 


2850  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

sumed  risk  is  in  regard  to  fine  legal  distinctions.  We  are  considering  giving  justice 
to  people  who  have  not  had  it  in  this  Commonwealth  for  many  a  long  day;  to  the 
man  who  is  turned  loose  upon  the  carelessness  of  any  incompetent  employee  to  lose 
his  life  or  limb  and  to  he  maimed  forever,  if  not  killed;  and  we  want  to  provide  that 
whenever  a  man  has  knowledge  of  a  defective  machine  or  instrument  with  which  he 
has  to  work,  that  knowledge  shall  not  be  a  defense,  provided  that  after  he  got  that 
knowledge  he  used  due  and  proper  care,  with  the  knowledge  of  the  defect  before  him; 
but  it,  on  the  other  hand,  he  does  not  use  such  car  as  that  knowledge  should  make 
him  use,  then  he  is  guilty  of  contributory  negligence,  and  the  corporation  has  its  full 
defense. 

Now,  carried  out  to  its  farthest  extent,  that  is  all  these  words  may  mean,  by  the 
farthest  possible  construction  the  court  may  give  them,  and  our  court  has  not  seen 
fit  to  construe  other  than  strictly  the^remedies  afforded  an  employee. 

One  other  point  and  I  shall  sit  down.  They  say  "If  you  mean  this,  why  do  you 
not  say  it"?  Simply  because  when  a  clause  in  a  bill  or  an  act  of  a  Constitutional 
oidinance  has  been  construed,  the  proper  thing  in  order  to  get  that  same  construction 
is  to  copy  the  language  of  that  clause,  and  not  to  copy  the  language  of  the  opinion 
construing  it.  A  change  in  language  means  a  change  in  construction.  An  addition 
that  this  shall  not  be  so  and  so  will  give  the  Court  of  Appeals  the  opportunity,  should 
it  be  hostile  to  the  measure,  and  I  do  not  say  it  will,  to  confound  and  confuse  and 
obliterate  the  difference  between  an  assumed  risk  and  contributory  negligence,  and 
practically  nullify  this  knowledge  clause  of  this  provision. 

Every  party  in  the  State  of  Virginia  has  demanded  that  these  people  shall  have 
relief.  This  Convention  is  practically  unanimous,  by  three  or  four  to  one,  that  they 
should  have  a  reasonable  relief,  and  I  submit  to  the  Convention  that  because  of  the 
fact  that  this  fight  was  not  brought  up  in  Committee  of  the  Whole,  it  should  not 
emasculate  the  protective  provision  of  this  measure  by  making  it  what  it  now  is,  not 
a  bar  to  bringing  an  action — everybody  knov/s  we  can  bring  it  and  the  court  says 
we  can  bring  it — but  when  we  get  in  the  court  its  opinions  practically  preclude  us 
from  establishing  a  case  under  any  declaration  we  can  draw  whereby  the  man  can 
recover,  if  he  has  knowledge,  no  matter  how  careful  -he  has  been,  even  if  his  case 
was  more  than  proportioned  to  his  knowledge  of  the  defect. 

Mr.  Braxton:  Mr.  President,  I  thank  the  Convention  for  indulging  me  to  close 
this  debate,  and  I  will  try  and  be  as  short  as  possible. 

The  principal  argument  that  seems  to  have  brought  to  bear  upon  this  question 
is  that  we  are  inconsistent.  Consistency  is  a  very  good  thing;  but  a  man  had  better 
be  right  than  be  consistent.  If  we  can  improve  this  language;  if  we  can  put  it  in 
such  form  that  it  is  beyond  all  doubt,  it  is  the  safest  thing  to  do.  I  have  tried  to 
deal  with  great  frankness  in  this  r^atter.  I  have  saif"  to  this  Convention  that  if  T  hid 
to  draw  this  without  any  guide  I  would  not  use  the  languaga  now  used  in  the  substi- 
tute. I  am  free  to  say  that,  as  an  original  proposition,  I  would  prefer  the  language 
used  in  the  amendment  offered  by  my  friend  from  Pulaski  (Mr.  Wysor).  But  there 
is  the  difficulty.  That  language  has  never  yet  been  construed.  In  place  of  it  the 
substitute  now  offers  language  which  has  been  construed.  In  construing  that  lan- 
guage, the  court  has  said  it  means,  identically  and  exactly,  the  very  thing  we  want 
it  to  mean,  without  a  shade  or  shadow  too  much  or  too  little.  Now,  sir,  we  might  ex- 
haust ourselves  for  the  balance  of  our  lives  in  seeking  for  other  language,  and  we 
could  not  find  any  that  would  mean  any  nearer  the  exact  thing  that  we  want  it  to 
mean  than  the  Court  of  Mississippi  says  this  does.  I  think  everybody  here  agrees 
with  me  in  that.  I  do  not  believe  there  is  a  man  within  the  sound  of  my  voice,  who 
wants  an  employers'  liability  bill,  that  does  not  want  it  to  mean  the  very  thing  that 
the  Mississippi  Court  says  it  means.  The  only  objection  to  the  use  of  this  language 
is  that  gentlemen  say,  if  they  had  to  construe  it  they  might  say  it  meant  something 
different  from  what  the  Mississippi  Court  says  it  means,  and  that  they  have  no  assur- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


2851 


ance  that  our  courts  will  construe  it  as  the  Mississippi  Court  did.  In  reply  to  that, 
gentlemen  of  the  Convention,  I  submit  to  you  that  it  is  a  canon  of  construction  that 
has  been  recognized  so  long  there  is  no  doubt  about  it  that  a  court  of  Virginia  in 
construing  this  language,  will  give  it  the  construction  that  the  court  of  Mississippi 
gave  it,  whether  that  is  the  construction  that  they  themselves,  would  have  given  it 
had  the  question  arisen  as  res  Integra.  My  friend  from  Norfolk  cites  you  a  case  in 
Kentucky  in  which  that  rule  seems  to  be  departed  from.  I  want  to  cite  you  a  case 
in  Virginia  decided  by  the  present  court,  within  the  last  twelve  months,  in  which  it 
is  laid  down  as  the  law  of  Virginia  to-day,  that  when  we  adopt  an  enactment  from  an- 
other State  vve  adopt  it  with  the  construction  that  State  has  put  upon  it.  I  refer  to 
the  case  of  Norfolk  and  Western  Railroad  Company  against  the  Old  Dominion  Bag- 
gage Transfer  Company,  decided  Ijy  our  presen'c  court  in  January,  1901.  The  ques- 
tion was  as  to  how  far  cur  court  i.^  boimd  by  tho  const'-uctlon  put  upon  <-:]iactments 
taken  from  other  States.  It  was  c  )nven(lfMl  that  the  language  did  not  mean  what  the 
opposite  side  contended  it  did  mean.    T!io  opposite  side  says: 

It  does  not  make  any  difference  what  you  say  about  it,  it  is  taken  from  the  statutes 
and  enactments  of  another  country  and  it  means  v/hat  that  country  has  said  it  means. 

Now,  let  us  see  whether  our  court  recognizes  that  principle  as  the  law  of  this 
State.    The  court  said: 

This  law  was  originally  passed  by  the  Legislature  in  1867  and  has  been  continually 
in  force  until  the  present  time.  It  was  taken  from  and  is  in  the  words  of  Section  2  of 
the  English  Railway  and  Canal  Traffic  Act.  1874.  The  Legislature  having  taken  from 
the  English  Act  the  language  used  in  Section  3,  of  the  act  approved  March  3,  1892, 
adopted  therewith  the  construction  placed  upon  that  language  by  the  English  courts. 

In  Doswell  vs.  Buchannan,  3rd  Leigh,  Carr  J.  said:  It  is  admitted  that  when  the 
construction  of  an  English  statute  has  been  settled  by  a  series  of  decisions  and  our 
Legislature  enacts  that  statute  in  totidem  verbis,  the  construction  must  be  considered 
as  adopted  along  with  the  statute."  In  Danville  vs.  Page,  25  Graft..  Judge  Staples  said: 
"  It  is  not  to  be  supposed  that  the  Legislature  incorporated  into  our  lav/s  an  important 
statute  of  another  State  in  ignorance  of  the  interpretation  given  to  it  by  the  courts  of 
that  State.  It  must  be  presumed,  rather,  that  the  Legislature  in  adopting  the  precise 
phraseology,  intended  to  adopt  along  with  it  the  interpretation  also." 

In  Magnus  vs.  McClelland,  93rd  Virginia.  786,  Judge  Keith  said:  "It  is  a  familiar 
rule  of  construction  that  when  a  statute  has  been  construed  by  the  court  and  is  then  re- 
enacted  by  the  Legislature,  the  construction  given  to  it  is  presumed  to  be  sanctioned 
by  the  Legislature  and  thenceforth  becomes  obligatory  upon  the  court.  This  rule  of 
construction  has  been  applied  by  the  supreme  Court  to  the  same  section  of  the  English 
traffic  act  now  under  consideration,  from  which  was  also  taken  the  third  section  of  the 
Interstate  Commerce  act." 

In  I.  C.  C.  vs.  B.  &  O.  R.  R.  Co.,  145th  United  States,  263,  Justice  Brown  said:  "But 
so  far  as  relates  to  the  question  of  undue  preference,  it  may  be  presumed  that  Con- 
gress, in  adopting  the  language  of  the  English  acts  had  in  mind  the  construction  given 
these  words  by  the  English  courts  and  intended  to  incorporate  them  into  the  statute." 

And  finally  our  own  court  about  twelve  months  ago,  in  the  case  of  the  Norfolk 
and  Western  Railway"  Company  vs.  The  Baggage  Transfer  Company,  said: 

In  view  of  this  settled  rule  of  construction  we  must  look  to  the  interpretation  that 
has  been  put  upon  the  English  act  by  the  English  court,  at  the  time  of  its  adoption  by 
the  Legislature  in  1867  and  be  guided  by  these  decisions  in  interpreting  the  legislation 
In  question 

Inasmuch  as  the  construction  put  upon  the  statute  in  question  by  the  English  court 
prior  to  our  adoption  of  it  is  conclusive  of  the  case  at  bar.  we  have  deemed  it  unneces- 
sary to  cite  numerous  decisions  of  the  American  courts  placing  the  same  construction 
upon  statutes  similar  to  our  own. 

Now,  Mr.  President  and  gentlemen  of  the  Convention,  can  there  be  the  least  lin- 
gering shadow  of  a  doubt  that  when  we  adopt  this  provision  of  the  Mississippi  Con- 


2852  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


stitution  we  take  with  it  the  construction  which  the  Mississippi  court  puts  upon  it? 
I  say  there  cannot  be  the  slightest  possibility  of  the  court  giving  it  any  other  than 
the  identical  construction  that  was  put  upon  it  in  the  State  from  which  it  was  taken. 

What  is  that  construction?  It  is  identically  and  exactly  the  thing  that  all  of  us 
admit  we  want  to  put  here.  If  it  had  not  been  construed  I  tell  you  frankly  I  v/ould 
have  preferred  the  language  of  the  gentleman  from  Pulaski.  But  that  language,  how- 
ever I  may  personally  like  it,  remains  to  be  construed  and  is  ready  to  hand.  Why  do 
we  not  use  the  construction  of  the  court?  Because  it  would  take  a  page  or  two,  and 
we  cannot  insert  pages  here.  By  taking  a  page  or  two  out  of  the  opinion  of  the 
court  and  inserting  that,  rather  than  the  section  v/hich  the  court  undertook  to  con- 
strue, we  are  not  adopting  the  language  the  court  constiued.  bat  we  are  adopting,  as 
my  friend  says,  unconstrued  language,  ard  wo  leavo  it  to  this  cou.t  to  bay  whether 
they  will  construe  it  to  mean  the  very  thii.?  wn  w^^nt  it  to  mean  or  romething  else. 
Having  a  certainty  shall  we  take  an  uncertainty? 

Nov/,  gentlemen  of  the  Convention,  this  is  the  last  thing  to  be  considered  in  this 
report.  All  of  us,  I  believe,  with  practical  unanimity.  We  want  an  employers'  lia- 
bility bill.  We  want  an  employers'  liability  bill  that  will  do  the  thing  it  purports  to 
do.  We  want  one  that  has  no  holes  or  leaks  in  it.  We  want  to  get  one  from  which 
will  be  removed,  as  far  as  possible,  the  danger  and  the  possibility  of  unfavorable  con- 
struction, I  hope  I  do  not  press  my  views  offensively  upon  you,  but  I  ask  you,  if  you  wish 
to  accomplish  this  purpose  and  do  it  in  the  best  and  wisest  way,  if  it  is  not  the  safest 
things  to  use  language  which  the  courts  have  already  said  means  identically  the  thing 
that  you  admit  you  want,  rather  than  to  go  oft"  into  the  field  of  untried  experiment, 
which  we  are  bound  to  do  sometimes.,  but  which  we  need  not  do  in  this  case.  The  doubt 
as  to  whether  the  courts  of  this  State  will  adopt  the  decision  of  the  court  of  Mississippi 
I  think  is  set  absolutely  at  rest  by  the  decision  in  the  case  I  have  just  read. 

I  trust,  therefore,  gentlemen,  that  in  order  to  assure  ourselves  of  accomplishing 
what  we  want  to  accomplish,  we  should  go  along  the  beaten  path  which  we  know 
will  lead  us  there,  and  not  venture  on  any  road  in  the  hope  that  it  may  be  a  better 
road  but  which  possibly  may  not  take  us  there  at  all. 
I  thank  the  Convention  for  its  indulgence. 

The  President:  The  question  is  upon  the  first  proposition  of  the  amendment  of- 
fered by  the  gentleman  from  Pulaski. 

The  question  having  taken  the  result  was  announced,  ayes.  26,  noes  89. 
The  first  proposition  of  the  amendment  was  rejected. 

The  President:    The  question  recurs  on  the  adoption  of  the  second  proposition 
of  the  amendment  proposed  by  the  gentleman  from  Pulaski. 

The  yeasi  and  nays  were  ordered,  and  being  taken,  resulted,  ayes  19,  noes  42. 
The  amendment  was  rejected. 

Mr.  Robertson:  Mr.  President,  I  desire  to  offer  an  amendment  to  this  section  by 
providing  that  the  language  of  this  section  shall  be  construed  in  the  same  manner  that 
similar  langauge  was  construed  in  the  case  of  Buckner  against  the  Richmond  and  Dan- 
ville Railroad  Co.  et  al,  reported  in  72d  Mississippi,  page  783. 

Mr.  President,  if  the  Convention  will  permit  me  I  will  read  this  amendment  and  I 
would  be  very  glad  if  the  gentlemen  would  listen  to  me.  I  am  not  offering  this  amend- 
ment simply  as  a  criticism  on  the  action  of  the  Convention  and  I  think  I  am  entitled  to 
be  heard.  This  is  a  very  serious  question  and  it  does  seem  to  me  that  it  ought  to  be 
given  some  consideration. 

The  amendment  which  I  offer  is  to  come  in  after  the  word  "  thereby,"  in  the  fol- 
lowing sentence:  "knowing  by  any  such  employee  of  the  defective  or  unsafe  character 
or  condition  of  any  machinery,  ways,  appliances  or  structure,  shall  not  of  itself  be  a 
bar  to  recovery  for  an  injury  caused  thereby." 

To  that  I  add  "provided,  however,  that  the  language  here  employed  shall  be  given 
the  interpretation  put  upon  it  by  the  Supreme  Court  of  Mississippi  in  the  case  of 


DEBATES  or  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  YIEGIXIA. 


2853 


Buckner  vs.  Richmoiid  and  Danville  Railroad  Company  ei  al,  reported  in  72d  Mississippi 
Reports,  page  7S3. 

Mr.  Thorn:  What  does  my  friend  think  would  be  the  effect  of  the  rejection  of 
that  amendment  by  this  Convention?  Of  course  it  is  understood  by  all  of  us  that  \\'e 
hope  the  court  will  follow  that  decision.  Suppose  the  Convention  rejects  the  proposi- 
tion that  it  must  follow  it.  Would  it  not  be  a  dangerous  thing  for  us  to  put  the  matter 
in  such  a  position  as  that? 

Mr.  Robertson:  Xo,  sir;  I  don't  think  so.  Gentlemen  have  argued  here  that  the 
Court  of  Appeals  will  necessarily  follow  the  decision  of  the  Supreme  Court  of  Miss- 
issippi in  regard  to  this  matter.  I  cannot  agree  vrith  the  gentleman  about  that.  I  am 
perfectly  willing  to  agree  that  courts  do,  ordinarily,  put  upon  a  statute  taken  from 
another  State  the  construction  that  the  courts  of  that  other  State  have  put  upon  it. 

I  think,  however,  that  there  is  some  Qualification  to  that  rule.  It  must  be  a  long 
continued  construction  which  is  well  known  and  observed  by  the  courts  of  the  State 
from  which  that  statute  is  taken,  or  that  provision  of  the  Constitution  is  taken.  The 
Constitution  of  Mississippi  was  only  adopted  in  1S90.  The  decision  that  these  gentle- 
men rely  upon  as  showing  what  our  courts  would  say  about  this  matter  was  made  in 
the  year  1595.  Every  lawyer  in  this  body  knows  I  am  right  when  I  say  there  is  no 
principle  which  binds  the  Supreme  Court  of  Mississippi  to  adhere  to  that  construction 
of  the  language  in  the  case  cited  here  in  argument.  That  case  is  a  precedent,  and  the 
■court  will,  in  all  probability  follow  it;  but  every  member  of  the  bar  that  has  any 
experience  knows  that  courts  reverse  their  own  decisions  and  adopt  different  views  as 
to  the  construction  of  language.  The  courts  have  decided  again  and  again  that  if, 
upon  review  of  a  matter  that  has  already  been  decided,  they  are  of  the  opinion  that 
the  former  decision  was  clearly  wrong,  in  the  face  of  the  principle  of  stare  decisis, 
they  reverse  the  right  to  take  a  different  view  of  the  matter.  This  Convention  has 
refused  to  use  plain  language  about  which  there  can  be  no  doubt  in  this  provision. 
There  is  no  dispute  amongst  us  as  to  what  we  want  here.  I  do  not  think  there  is  any 
man  in  this  Convention  who  is  opposed  to  giving  to  the  railroad  employees  the  relief 
this  article  calls  for.  I.  for  one,  certainly  am  not  opposed  to  it.  I  have  stated,  time 
end  time  again,  that  I  am  opposed  to  putting  these  things  into  the  Constitution  because 
I  do  not  believe  it  is  in  the  interest  of  the  emplo^'ees  of  the  railroad  companies  any 
more  than  it  is  to  the  interest  of  the  railroad  companies  to  put  into  our  permanent  law, 
that  which,  in  its  nature,  is  a  legislative  enactment.  But  the  majority  of  this  Conven- 
tion has  decided  otherwise,  and,  we  are  agreed  upon  that  point.  The  simple  question 
here  is  what  language  we  shall  use.  These  gentlemen  say  we  ought  to  use  the  language 
that  the  Mississippi  Constitution  contains  because  there  is  a  decision  of  the  court  in 
Mississippi  which  gives  it  the  construction  we  desire.  Xow,  if  they  want  the  con- 
struction put  upon  it  that  the  Mississippi  court  has  put  upon  it,  if  they  are  unv.-illing 
to  take  the  language  that  gentlemen  have  suggested  here,  which  is  a  parapharse  of  the 
language  of  the  Mississippi  courts,  then  I  can  see  no  reason  on  earth  why  they  should 
be  unwilling  to  put  in  a  provision  stating  what  kind  of  construction  they  want  our 
Court  of  Appeals  to  put  upon  this  language.  My  friend  from  Norfolk  (Mr.  Thom)  has 
suggested  to  me  a  difficulty  about  the  matter.  I  do  not  understand  that  the  Court  of 
Appeals  is  going  to  look  at  what  we  say  here,  or  how  we  vote  here,  in  order  to  construe 
this  law.  I  hope  it  is  not,  I  hope  the  Court  of  Appeals  is  not  going  to  read  our  debates 
in  this  Convention  in  order  to  determine  anything  on  the  face  of  God's  earth.  I  think 
that  would  be  abandoning  every  cannon  of  construction.  The  language  used  by  us  is 
what  the  Court  of  Appeals  is  going  to  go  by,  and  not  by  what  the  gentleman  from 
Augusta  or  the  gentleman  from  Richmond  or  the  gentleman  from  anywhere  else  says 
the  language  means. 

]\Ir.  ]^vleredith:  Would  you  not  be  ashamed  to  see  that  language  in  the  Constitu- 
tion of  the  State  of  Virginia? 

Mr.  Robertson:  Xo,  sir;  I  would  not.  I  would  prefer  to  have  it  there.  ^ly  idea, 
and  yours,  as  to  what  is  shameful  may  be  different. 

Mr.  :\Ieredith:  Decidedly. 


2854 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Mr.  Robertson:  You  have  voted  to  put  language  in  this  provision  that  is  admit- 
tedly capable  of  two  constructions.  You  say  you  put  it  there  because  the  Mississippi 
court  has  construed  it  in  a  certain  way,  and  in  the  way  that  you  want  it  to  be  con- 
strued. Now,  if  you  are  sincere  in  that,  what  objection  can  there  be  to  saying  that  our 
court  shall  construe  it  in  the  same  way  that  the  Mississippi  court  did? 

I  do  not  want  to  say  anything  more  about  this  matter.  I  have  offered  it  in  good 
faith,  because  it  does  seem  to  me  that  we  ought  to  use  language  in  this  Constitution 
that  means  what  we  say  we  want  it  to  mean.  If  the  gentleman  wants  to  invoke  the 
construction  of  a  foreign  court  in  a  foreign  State  and  put  language  here  that  has  been 
construed,  in  a  limited  sense,  by  that  State,  let  them  put  it  here  so  as  to  remove  all 
doubt.  If  they  are  acting  in  good  faith;  if  they  have  not  been  expecting  to  get  more 
out  of  this  language  than  the  Mississippi  courts  give  them,  what  reason  can  they  have 
for  not  voting  that  the  Mississippi  construction  shall  be  put  into  it.  Gentlemen  have 
said  something  here  about  this  matter  not  having  been  voted  on.  I  remember  that  the 
gentleman  from  Louisa  asked  a  question  about  this  very  matter  when  it  was  up  in 
Committee  of  the  Whole,  and  for  some  reason  he  was  induced  to  abandon  the  matter 
at  that  time.  We  thought  this  matter  was  settled  and  here  it  comes,  with  a  change  of 
front,  in  Convention,  with  limited  debate,  upon  a  proposition  which  goes  far  beyond 
what  the  original  proposition  was.  I  do  not  want  to  be  in  the  attitude  of  fighting  that 
matter.  I  would  not  do  it  for  anything  in  the  world.  I  am  in  favor  of  these  laboring 
men  having  their  lives  and  limbs  protected;  but  it  does  seem  to  me  there  ought  to  be 
some  protection  to  the  other  side.  There  ought  to  be  some  protection  to  the  people 
who  pay  out  their  money  for  the  purpose  of  employing  these  laboring  men.  The 
laboring  men  cannot  get  this  employment,  dangerous  though  it  may  be,  unless  the 
people  who  employ  them  have  some  protection  under  the  law. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Roanoke. 

The  ayes  and  noes  were  ordered,  and,  being  taken,  resulted  ayes  7,  noes  53. 

The  amendment  was  rejected. 

The  President:    The  question  recurs  on  agreeing  to  the  amendment  in  the  nature 
of  a  substitute  offered  by  the  gentleman  from  Augusta,  the  chairman  of  the  committee. 
The  amendment  was  agreed  to. 

On  motion  of  Mr.  Braxton,  the  Convention  took  a  recess  until  4  o'clock. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
chair. 

The  question  of  order,  as  stated  by  the  Chair  was  agreed  to. 

The  President:  The  judgment  of  the  Convention  is  that  the  independent  section 
as  offered  is  in  order.  The  question  recurs  on  the  adoption  of  independent  section  No. 
20.    The  Secretary  will  read  the  section. 

Sec.  20.  No  member  of  this  Convention  shall  be  eligible  to  the  position  of  corpora- 
tion commissioner,  created  by  this  body,  at  the  first  appointments, 

Mr.  Braxton:  I  want  to  say  one  word  in  this  connection.  I  hope  this  resolution 
will  be  voted  down.  I  took  occasion  the  other  day  to  state,  as  far  as  I  am  personally 
concerned — if  the  Convention  will  pardon  me  for  referring  to  myself  in  this  connec- 
tion— that,  having  been  the  chairman  of  the  committee  that  brought  in  the  resolution 
to  establish  this  commission,  under  no  conceivable  circumstances,  either  after  the  first 
appointments  or  any  subsequent  ones,  as  long  as  I  live,  shall  I  ever  be  induced  to  serve 
upon  that  commission;  and  if  ever  I  change  my  mind  in  that  respect,  I  hope  that  I  will 
be  drummed  out  of  this  State  as  unworthy  of  the  respect,  of  decent  men.    I  do  not 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTTOX  OE  VIKGIXIA. 


2855 


make  this  statement  for  effect;  but  I  mean  it  to  the  full  extent.  I  think,  however,  :*Ir. 
President  that  the  position  I  occupy  in  connection  YN'ith  this  matter  is  different  from 
that  occupied  by  other  members  of  this  Convention  vho  happen  to  favor  this  report, 
and  is  different,  even,  from  those  vho  voted  against  it.  I  do  not  think  they  would  be 
open  to  the  criticism  to  which  I  would  be  subject  if  I  should  accept  a  position  on  this 
body  which  I  have  been  so  prominent  in  forming.  I  think  it  would  be  imworthy  of  thi? 
body,  and  it  would  be  a  reflection  upon  it  to  pass  a  resolution  of  this  sort.  There  are 
many  good  and  excellent  men  in  this  body.  I  do  not  know  whether  any  of  them  are 
candidates  for  these  positions.  I  do  not  know  whether  any  of  them  would  accept  the 
office  if  it  is  was  given  to  them;  but  it  does  seem  to  me  that  it  is  a  degree  of  self 
abnegation  for  which  there  is  no  call  to  undertake  to  say  that  no  member  of  this  Con- 
vention shall  serve  upon  this  commission.  Why  not  say  that  no  member  of  this  Con- 
vention shall  serve  in  any  other  office?  Why  not  say  he  shall  not  be  a  judge  or  be 
elgible  to  any  other  position  that  exists  under  this  Constitution?  My  friend  who  intro- 
duced this  resolution  says  that  we  are  just  taking  the  medicine  we  have  given  to  the 
Legislature.  He  does  not  use  that  language;  but  that  is  his  idea.  Mr.  President,  the 
Corporation  Commission  is  very  different.  If  this  body  had  to  elect  the  members  of 
this  commission  I  would  say  by  no  means  should  any  member  of  it  be  elected  to  the 
office.  But  the  members  of  this  commission  cannot  be  elected  by  this  body  in  any  way. 
shape  or  form.  I  do  not  think  it  is  anything  other  than  a  reflection  on  this  body  to 
pass  a  resolution  saying  that,  although  the  Legislature  should  be  unanimous  and  the 
Governor  should  be  favorable  and  the  people  at  large  should  agree,  that  a  member  of 
this  body  should  fill  one  of  these  offices,  yet  that  he  should  not  be  allowed  to  fill  it. 
I  do  not  think  there  is  any  occasion  for  this.  I  do  not  see  what  reason  there  is  for  it. 
Knowing,  as  I  do,  and  as  I  stated  to  this  body,  that  in  no  event  can  it  affect  me  in  any 
way.  shape  or  form,  I  feel  free  to  express  my  earnest  hope  that  this  resolution  will  not 
be  adopted  by  this  CouA-ention. 

:\Ir.  Hubbard:  :\Ir.  Chairman.  I  think  we  would  be  in  a  most  inconsistent  attitude 
if  we  should  say.  as  my  distinguished  friend  who  has  just  taken  his  seat  seems  to  think 
we  should  say,  that  the  members  of  the  Legislature  of  the  State  of  Virginia  should  not 
be  allowed  to  be  elected  to  offices  that  they  create,  but  that  the  members  of  this  Con- 
stitutional Convention  should  be  permitted  to  be  elected  to  offices  which  they  create. 
So  far  from  agreeing  with  him  in  thinking  that  this  twentieth  section  will  put  this  bodv 
in  an  improper  attitude,  I  think  it  v>-ill  put  us  upon  a  high  pinnacle;  it  will  say  to  the 
V,  orld  and  to  the  State  that  the  majority  of  these  gentlemen  in  this  body  have  decided 
that  under  no  circumstances  will  they  accept  appointment  from  the  G-overnor  to  posi- 
tions which  they,  themselves,  have  created.  Consistency.  Mr.  President,  is  a  jewel,  but 
it  will  not  be  a  jevrel  that  will  deck  the  diadem  of  this  Constittitional  Convention  if  we 
adopt  one  line  of  policy  for  the  Legislature  of  Virginia  and  another  line  of  policy  for 
the  members  of  the  Constitutional  Convention.  There  can  be  no  reason  for  it.  There 
can  be  no  justice  for  it.  There  can  be  no  propriety  in  it.  For  my  part.  I  wish  to  put 
myself  upon  record  as  advocating  election  by  the  people.  I  Avoiild.  however,  in  any 
event  have  voted  for  this  independent  section.  If  the  people  had  had  the  election  of 
these  officers  I  shotild  have  been  opposed  to  any  member  of  this  body  being  eligible  for 
election,  after  the  first  appointments.  At  that  time  the  Legislature,  as  I  understand  it, 
may  deal  with  the  subject.  It  does  seem  to  me  that  if  the  members  of  this  Convention 
wotild  consider  the  matter  they  wotild  not  want  to  be  ptit  in  the  attitude  of  objecting 
to  this  provision. 

So  far  as  I  know,  there  is  no  candidate  for  the  position  in  this  body.  I  say  that  I 
do  not  know  a  man  in  the  body  who  has  the  least  aspiration  in  that  direction.  I  am 
aiming  at  nobody.  I  am  taking  a  conscientious  position  as  a  representative  of  the 
people  I  have  been  sent  here  to  serve,  and  I  am  taking  it  upon  the  high  plane  of 
equality,  and  upon  the  plane  that  the  gentlemen  have  undertaken  to  fix  for  the  Legis- 
lature,   There  are,  ;Mr,  President,  in  the  General  Assembly  gentlemen  who  are  the 


2856  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


equal  in  ability  to  other  gentlemen  on  this  floor  who  have  never  served  there.  If  we 
say  that  the  Legislature  of  Virginia  ought  not  to  do  this  improper  thing,  then  it  is 
proper,  eminently  fit  and  eminently  right  that  we  should  put  ourselves  on  the  high 
plane  we  have  declared  the  Legislature  should  occupy,  by  adopting  this  independent 
section. 

The  President:  The  question  is  on  agreeing  to  the  independent  section  offered 
by  the  gentleman  from  Buckingham. 

The  question  having  been  taken,  the  result  was  announced — Ayes  23,  noes  35. 

Ayes:  Messrs.  Allen,  W.  A.  Anderson,  Ayers,  Bolen,  Brooke,  Carter,  Earman,  Flood, 
Hamilton,  Hooker,  Hubard,  G.  Y/.  Jones,  Lindsay,  Mundy,  Pedigo,  Phillips.,  Pollard, 
Quarles,  Robertson,  Summers,  Thom,  Wescott,  Withers — 23. 

Noes:  Messrs.  George  K.  Anderson,  Barbour,  Thomas  H.  Barnes,  Boaz,  Bouldin, 
Braxton,  Brown,  Chapman,  Crismond,  Epes,  Fairfax,  Garnett,  Gilmore,  James  W.  Gordon, 
R.  L.  Gordon,  Hancock,  Hardy,  Hunton,  Keezell,  Loveil,  Meredith,  Moncure,  R.  Walton 
Moore,  O'Flaherty,  Parks,  Richmond,  Rives,  Stebbins,  Stuart,  Thornton,  Waddill,  Willis, 
Wise,  Yancey  and  the  President — 35. 

The  following  pairs  were  announced:  Mr.  Cameron  with  Mr.  Mcllwaine;  Mr.  Vin- 
cent with  Mr.  Tarry;  Mr.  Green  with  Mr.  Brown. 

The  first  named  gentleman  in  each  instance  would  have  voted  in  the  affirmative. 
The  independent  section  was  rejected. 

Mr.  Braxton:    I  move  that  the  article,  as  amended,  be  adopted. 
The  motion  was  agreed  to. 

Mr.  Braxton:  Mr.  President,  with  unaffected  gratitude  to  this  Convention  for  the 
faithful  consideration  and  support  it  has  given  to  the  Committee  on  Corporations  in 
considering  this  article,  I  now  move  that  the  article  as  adopted,  be  printed  and  referred 
to  the  Committee  on  Final  Revision  and  Adjustment. 

The  President:  The  question  is  upon  the  motion  of  the  gentleman  from  Augusta 
that  the  article  just  adopted,  be  printed,  and  that  it  be  referred  to  the  Committee  on 
Final  Revision  and  Adjustment. 

The  motion  was  agreed  to.    (Great  applause.) 

TAXATION  AND  FINANCE. 

Mr.  Fairfax:  I  move  that  the  Convention  now  take  up  for  consideration  the  report 
of  the  Committee  on  Taxation  and  Finance,  as  amended  and  reported  from  the  Com- 
mittee of  the  Whole. 

At  this  point  Mr.  Thorn  took  the  chair. 

The  Presiding  officer:  If  there  is  no  objection  that  will  be  considered  as  the  sense 
of  the  Convention. 

Mr.  Fairfax:  As  there  are  some  members  of  the  Convention  who  wish  to  speak  on 
Section  1  and  2,  if  it  is  the  pleasure  of  the  Convention,  the  committee  will  be  pleased 
to  pass  by  those  two  sections  for  the  present,  and  to  take  up  for  consideration  Section 
3. 

Section  3  was  then  read. 

Mr.  Harrison:  I  move  to  strike  out  the  words  beginning  with  "and  whenever  a 
franchise  tax  shall  be  imposed  upon  a  corporation  doing  business  in  this  State,  or  when- 
ever all  the  capital,  however  invested,  of  a  corporation  chartered  under  the  laws  of 
this  State  shall  be  taxed,  the  shares  of  stock  issued  by  any  such  corporation,  the  same 
representing  the  business  or  capital  so  taxed,  shall  not  be  further  taxed." 

It  seems  to  me,  Mr.  President,  that  this  is  drawing  an  invidious  distinction  between 
people  who  are  not  incorporated  and  those  who  are  incorporated.  It  may  be  double 
taxation  to  say  that  the  property  of  a  corporation  shall  be  taxed  and  that  the  shares 
of  stock  shall  be  taxed;  but  it  is  the  double  taxation  that  exists  on  every  kind  of 
property  we  know  of.    If  I  sell  a  piece  of  real  estate  and  give  a  deed  of  trust  for  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA.  2857 

purchase  money,  the  real  estate  is  taxed  and  the  bonds  are  also  taxed.  They  are  taxed 
upon  the  theory  that  the  tends  are  as  productive  as  the  real  estate.  The  bonds  pay 
interest  and  the  real  estate  bears  its  crop.  The  same  may  be  said  of  the  sale  of 
personal  property,  where  credit  is  given.  The  personal  property  sold  is  taxed,  and  so 
is  the  credit  taxed.  Yvliy  should  the  shares  of  stock  of  a  corporations  be  exempt? 
Shares  of  stock  produce  dividends  just  like  bonds  bear  interest.  It  is  property  owned 
by  a  corporation  and  not  by  an  individual,  but  the  individual  owns  the  stock.  A  tax 
is  laid  upon  the  property  of  the  corporation  and  then  it  is  proposed  to  exempt  the  stock- 
•  holder  as  an  individual,  and  to  exempt  property  held  by  him.  I  do  not  think  that  ought 
to  be  done. 

We  do  not  know  what  effect  upon  the  revenues  of  this  State  such  a  course 
will  have.  It  has  never  been  done  in  the  past.  The  stock  of  a  corporation  has  always 
been  taxed  just  as  bonds,  notes,  and  every  other  chose  in  action  is  taxed.  It  is  pro- 
ductive of  revenue  just  as  every  chos.e  in  action  is.  Because  the  property  of  the  cor- 
poration is  taxed,  it  does  not  seem  to  me  that  we  ought  to  exempt  the  shares  of  stock 
in  the  hands  of  the  individual,  any  more  than  we  should  exempt  bonds  and  notes  and 
other  choses  in  action. 

Mr.  Meredith:  Mr.  President,  we  hope  it  be  the  pleasure  of  this  Convention 
to  leave  this  language  as  the  Committee  of  the  Whole  left  it.  It  is  true  that  there  is 
a  difference  between  a  tax  upon  a  franchise  and  a  tax  upon  capital.  A  franchise  tax 
may  embrace  all  the  capital  or  it  may  embrace  only  a  portion  of  it.  The  system  which 
we  hope  to  see  adopted  in  this  State  would  be  a  system  of  franchise  taxes  by  w^hich 
all  the  property  and  capital  of  a  corporation  would  be  gotten  at;  and  if  it  is  not  done 
it  will  be  for  the  Legislature — 

Mr.  Barbour:  Under  this  provision  that  the  State  should  impose  a  franchise  tax 
upon  corporations,  would  we  not  relieve  ail  of  its  capital  stock  even  from  local  taxa- 
tion? 

Mr.  Meredith:    It  releases  its  shares  in  the  hands  of  individual  holders. 

Mr.  Barbour:    Then  it  would  release  all  that  property  from  local  taxation? 

Mr.  Meredith:  That  would  not  amount  to  very  much.  I  will  say  to  my  friendThat 
there  is  no  portion  of  the  State  that  v/ould  be  more  interested  in  getting  a  tax  upon 
stock  tha^  the  city  of  Richmond  would  be,  because  of  its  peculiar  situation  just  at  the 
present  time.  In  this  city  to-day  are  large  owners  of  stock  in  the  American  Locomotive 
Company,  the  Virginia  and  Carolina  Chemical  Company,  the  Continental  Tobacco  Com- 
pany and  others,  and  yet  I  do  not  hesitate  to  say  that  it  would  be  to  the  interest  of  the 
State  and  to  the  interest  of  the  city  that  this  system  of  taxation  should  be  adopted.  I 
call  your  attention  to  the  fact  that  it  is  our  desire  and  hope  that  the  Legislature  will 
■see  fit  to  levy  a  system  of  franchise  taxes  by  which  the  entire  property  of  a  corporation 
will  be  gotten  at,  and  that  it  will  levy  a  tax  on  the  entire  property.  If  that  be  done, 
if  you  get  at  all  of  the  property,  its  personal  property  and  its  real  estate,  its.  intangible, 
invisible  property,  like  franchises,  then  you  have  gotten  at  every  dollar  of  value  that 
the  corporation  owns.  When  you  have  arrived  at  that,  you  ought  not  to  put  another 
tax  on  the  same  property.  We  are  suggesting  a  system  of  taxation  by  which  the 
entire  property  of  a  corporation  would  be  gotten  at  and  that  being  arrived  at,  we  say 
it  would  not  be  fair  to  tax  the  stock  of  the  companies  in  the  hands  of  the  individual 
owner.  Why?  You  know  that  a  share  of  stock  is  not  a  debt.  There  is  nobody  from 
whom  you  can  collect  it.  You  are  entitled  to  no  interest  on  it.  It  is  simply  your 
title  deed  to  your  share  in  the  corporation.  It  simply  represents  the  interest  which 
you  have  in  this  property  which  we  propose  to  tax  under  the  franchise  system,  if 
the  Legislature  does  its  duty,  which  we  suppose  it  will. 

It  is  true  that  I  may  get  a  dividend  from  my  stock,  but  do  I  not  get  rent  from  my 
real  estate?  Do  you  tax  my  deed  to  real  estate?  And  yet  from  real  estate  I  derive 
rent.  There  is  no  more  reason  why  you  should  tax  a  share  of  stock,  provided  you  get 
at  all  of  the  property  of  the  corporation  in  some  way,  than  there  is  why  you  should  tax 
the  title  deed  to  my  house,  for  which  I  receive  rent. 
ISO— Const.  Deb. 


2858  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

There  is  another  thing  to  which  I  ask  your  attention.  The  idea  of  taxing  this 
invisible  property  by  trying  to  get  at  it  in  the  hands  of  individual  owners  has  failed, 
time  and  time  again,  and  will  continue  to  fail.  It  will  be  simply  useless  for  you  to' 
attempt  it.  It  is  idle  for  us  to  say  that  we  can  do  what  others  have  tried  to  do  and 
failed.  To  such  an  extent  has  this  matter  gone,  in  the  line  of  trjdng  to  get  at  the 
invisible  property  in  the  hands  of  individuals,  that  there  is  a  system  now  in  the  State 
of  Massachusetts  which  they  call  the  "dooming"  system.  That  system  is  this:  As 
the  assessor  is  supposel  not  to  be  able  to  get  at  your  personal  property  and  as  it  is 
supposed  that  you  a're  not  goipg  to  be  honest  and  return  it,  he  puts  in  your  personal  . 
property  as  worth  $10,000.  You  stand  it,  and  the  next  year  he  says  that  you  have 
stood  this  and  he  will  put  it  at  |15,000,  and  as  long  as  you  will  stand  it  he  will  climb 
up  on  you.  To  such  an  extent  has  this  become  an  absurdity  and  a  failure  that  every 
conceivable  effort  that  the  ingenuity  of  man  can  suggest  to  avoid  it  has  absolutely 
failed.  We  know  that  the  Legislature  of  Virginia  recognized  this  a  few  years  ago  and 
passed  an  act  saying  that  the  shares  of  stock  in  the  hands  of  individual  ov/ners  should 
not  be  taxed,  wherever  the  capital  was  otherwise  taxed.  Let  us  add  to  that  a  provision 
saying  that  wherever  the  franchise  is  taxed  the  capital  stock  in  the  hands  of  individual 
owners  shall  not  be  taxed,  believing  that  if  we  tax  the  real  estate  and  personal  property 
and  franchises,  we  get  at  all  the  value  of  the  property. 

You  may  not  see  fit  to  tax  the  franchise  of  a  company.  Take,  for  instance,  a 
mercantile  com.panj^  The  franchise  of  that  company  is  worthless.  You  could  not  sell 
it  for  a  dollar  in  the  market.  There  are  stores  here  on  Broad  street  that  are  run  as 
corpora,tions  and  their  franchises  are  not  worth  a  cent;  but  their  capital  is.  In  that 
class  of  corporations  we  get  at  their  capital.  When  you  come  to  another  class  of 
corporations  you  will  find  that  their  franchises  are  valuable.  When  you  put  a  fran- 
chise tax  on  you  are  certain  to  get  at  all  the  value  of  the  property,  no  matter  whether 
you  let  it  take  the  place  of  all  taxes  or  whether  you  let  it  to  be  m  addition  to  other- 
taxes.  The  shares  of  stocl&  that  are  held  by  individuals  are  simply  evidences  of  title, 
of  the  interest  the  stockholder  has  in  the  company  and  they  are  not  a  bit  more  valuable 
than  the  title  deed  to  your  house. 

Mr.  Harrison:  Mr.  President,  let  me  see  if  I  get  that  right.  You  say  that  where 
the  franchise  is  valuable  the  tax  would,  of  course,  be  laid  on  the  franchise,  and  that 
Vv^ill  exempt  the  shares  of  stock  in  the  hands  of  individuals. 

Mr.  Meredith:    Yes,  sir. 

Mr.  Harrison:  Take  one  of  these  Broad-street  corporations  that  you  speak  of, 
where  the  franchise  is  not  worth  anything.  In  that  case  of  course  the  franchise 
amounts  to  nothing  and  the  shares  of  stock  will  have  to  be  taxed. 

Mr.  Meredith.  There  you  tax  the  capital  stock.  Our  hope  is  that  this  Convention 
will  adopt  the  first  section  of  this  report,  which  will  allow  the  Legislature  a  free  hand 
in  classifying  property.  Then,  when  you  come  to  a  mecantile  corporations,  you  will 
treat  it  in  one  way  and  tax  its  capital  stock  and  itsi  visible  property.  The  failure  here- 
tofore has  been  to  get  at  ail  the  property.  The  object  of  the  committee  is  to  get  at  the 
value  of  this  property  and  having  once  taxed  it,  to  provide  that  it  shall  not  be  subject 
to  double  taxation.  A  share  of  stock  is  not  worth  anything  except  what  the  com- 
pany may  make.  It  may  be  worth  $1  or  it  may  be  worth  $100.  It  is  simply  a  repre- 
sentative of  my  interest  somewhere  else.  A  mortgage  is  a  debt  that  another  man  owes, 
and  that  he  is  obliged  to  pay.  That  is  property  that  I  can  sell  upon  the  market.  I 
may  sell  the  stock,  or  I  may  not  sell  it.  It  simply  represents  my  interest,  either  in  a 
m.ercantile  business  or  in  a  mine  or  in  a  railroad  or  in  some  other  enterprise.  Look- 
ing at  the  present  condition  of  affairs  in  this  country  we  do  hope  that  you  will  adopt 
a  system  of  taxation  by  which  you  will  get  at  the  value  of  the  property  and  not  dis- 
courage our  people  from  investing  in  our  own  enterprises.  Suppose  you  undertake  to 
tax  shares  in  the  hands  of  individual  ovvuers.  Any  man  who  knovv^s  anything  in  the 
world  about  taxation,  knows  that  it  is  almost  impossible  to  get  at  it.    Suppose  you  take 


DEBATES  OF  THE  CO^s^STITUTIOXAL  COXVEXTION  OF  VIRGINIA.  2859 

the  Massachusetts  system  that  is  called  the  "  dooming "  system,  what  is  the  result? 
When  you  look  around  and  see  the  condition  of  affairs  in  this  country  to-day,  you  find 
that  men  in  California  ovv^n  interests  in  the  coal  mines  and  steel  works  of  Pennsylvania. 
You  find  men  in  Maine  interested  in  the  tobacco  raised  and  manufactured  in  the  State 
of  Virginia.  That  is  because  the  stock  of  these  enormous  corporations  is  so  large  that 
it  has  floated  all  over  this  country.  Everybody  who  is  able  to  invest  money  looks  for 
some  investment  of  that  kind  in  industrial  corporations.  Take  the  United  States  Steel 
Company,  which  has  a  capital  stock  of  11,300,000,000.  The  stock  of  that  company  is 
scattered  all  over  this  country.  If  you  get  at  the  shares  of  stock  that  I  own  in  the 
Locomotive  Works,  by  requiring  the  treasurer  of  the  company  to  give  you  a  list  of 
it,  w^iiat  is  the  result?  I  will  simply  sell  out  that  stock  and  take  an  investment  in  the 
United  States  Steel  Company,  or  the  American  Tobacco  Company,  which  you  cannot 
get  at.  If  you  adopt  this  system  we  vv'ill  have  a  proper  system  of  taxation,  by  which 
all  property  will  be  gotten  at,  and  people  will  be  encouraged  to  invest  in  our  own 
enterprises,  because  of  the  fact  that  they  will  know  the  stocks  in  local  enterprises  are 
not  going  to  be  taxed.  If  they  believe  that  it  is  going  to  be  taxed  you  must  expect 
that  our  own  citizens  will  not  invest  in  property  which  can  be  gotten  at. 

Mr.  O'Plaherty:  I  know  this  is  very  dangerous  ground.  But  suppose  a  man  had 
$100,000  in  money.    That  would  be  taxable  as  I  understand  it. 

Mr.  Meredith:    Yes;  it  would  be  taxable  if  you  could  get  at  it. 

Mr.  O'Flaherty:  Could  he  not  put  that  in  the  stock  of  some  concern  that  had  its 
existence  outside  of  Virginia  and  did  business  in  the  State  of  Virginia  and  paid  a 
franchise  tax,  would  it  not  be  possible  for  him  to  invest  his  money  in  that  stock  and 
the  stock  not  being  taxable  under  the  Constitution,  v/ould  he  not  go  free?  Then,  if 
taxes  are  levied  upon  it,  he  could  transfer  that  stock  and  continuously  avoid  the  pay- 
ment of  any  tax  to  the  State  of  Virginia. 

Mr.  Meredith:    They  do  do  it. 

Mr.  O'Flaherty:  Was  it  not  the  idea,  in  obtaining  this  corporation  commiSiSion, 
to  have  the  commission  require  all  stock  helcl  by  any  one  in  the  State  to  be  listed,  so 
that  the  commission  would  know  just  where  it  v/as?  I  understand  that  is  the  object 
of  this  commission — to  keep  track  of  stock. 

Mr.  Meredith:  Not  that  I  ever  heard  of.  I  think  that  if  they  have  to  do  that 
you  had  better  increase  the  corporation  commission. 

Mr,  O'Flaherty:  I  do  not  object  to  your  taxing  franchises.  I  think  you  ought  to 
do  that.  But  it  seems  to  me  you  ought  to  leave  the  Legislature  the  pov/er  of  taxing 
franchises  and  also  leave  it  to  the  Legislature  to  look  after  this  other  property  which 
ought  to  bear  its  fair  share  of  taxat^'on,  vv'herever  it  is  right  and  necessary. 

Mr.  Meredith:  I  do  not  suppose  the  gentleman  differs  from  other  men.  He  thinks 
he  can  do  v/hat  a  good  many  other  people  cannot  do.  It  has  been  the  effort  of  Ihe 
world  for  centuries  to  get  at  intangible  personal  property  for  the  purpose  of  taxation, 
and  they  have  simply  failed  to  do  it.  If  the  gentleman  has  read  at  all  on  the  subject 
he  will  find  that  the  only  difference  between  the  persons  who  discuss  this  question  is 
with  reference  to  which  can  use  the  most  denunciatory  terms  in  regard  to  it.  Some 
call  it  a  premium  upon  d'shonesty  and  others  a  burden  upon  honesty,  and  they  all 
recognize  the  fact  that  you  do  not  get  at  the  value  of  such  property,  and  that  you 
are  wasting  your  time  and  making  those  people  who  are  honest  and  return  their  stock 
pay  taxes  for  those  v»'ho  desire  to  avoid  taxation,  and  will  not  make  returns.  We  do 
not  propose,  under  this  system,  to  any  longer  follow  that  useless  line  of  conduct.  We 
will  have  a  system  of  taxation  by  which  the  entire  property  will  be  gotten  at,  and  we 
provide  that  v/hen  once  the  property  isi  taxed  we  will  not  tax  the  title  to  it,  the  piece 
of  paper  that  he  has  in  hie  hand  shov>^ing  his  interest  in  it.  We  know  that  system 
never  has  succeeded.  We  know  that  the  condition  of  affairs  in  this  country  is  such 
that  if  you  press  this  too  far  you  simply  drive  out  investments  from  your  own  State. 
You  may  say  that  you  want  to  tax  a  thing  twice.    You  may  say  you  believe  a  thing 


2860 


DEBATES  OF  THE  COXSTITUTIO^TAL  CONVENTION  OF  VIRGINIA. 


ought  to  be  taxed  twice;  but  the  man  who  knows  is  going  to  say  tliat  you  shall  not 
do  it,  and  if  you  push  him  too  far  he  simply  sells  his  property  and  invests  somewhere 
else.  Why  should  we  drive  away  investments  when  we  have  gotten  at  the  property 
to  be  taxed  and  have  taxed  it  fairly  and  to  its  full  extent. 

I  hope  the  gentleman  from  Winchester  will  not  press  his  resolution  alter  the  ex- 
planation that  hasi  been  given. 

Mr.  Allen:  I  offer,  as  an  amendment,  to  insert  in  line  18.  Section  3,  after  the 
word  "paving"  the  words  "then  existing,"  so  that  it  would  read  "then  existing  alleys, 
or  construction  of  sewers." 

The  Presiding  Oincer:    Without  objection,  the  amendment  will  be  agreed  to. 
Mr.  Fairfax:    I  wish  to  offer  an  amendment  in  line  18,  after  the  word  "construc- 
tion," to  add  "or  use,"  so  that  it  will  read  "construction  or  use  of  sewers." 

Mr.  Hamilton:  Before  that  is  put,  Mr.  President,  I  wish  to  say  that  I  do  not  think 
people  ought  to  be  required  as  abutting  property  owners  to  pay  something  for  the 
construction  of  the  sewer  and  subsequently  for  its  use. 

Mr.  Meredith:  The  idea  is  that  some  cities  charge  for  the  construction,  and  they 
allow  you  to  pay  for  it  immediately,  and  then  there  is  no  further  burden  on  you. 
Others  allow  you  to  pay  so  much  a  year  for  the  use  of  it,  and  if  you  choose  to  redeem 
it  at  any  time  you  may  do  so,  and  you  get  rid  of  the  burden. 

Mr.  Hamilton:  I  suggest  that  some  words  be  added  there  which  will  go  to  show 
that  if  you  pay  for  the  construction,  you  shall  not,  in  addition,  pay  for  the  use.  If 
you  say  "either  for  the  construction  or  otherwise  for  the  use,"  that  would  answer. 

The  Presiding  Officer:  The  Secretary  will  read  the  amendment  as  it  is  now  re- 
corded. 

The  Secretary  read  as  follows: 

In  line  18,  after  the  word  "for"  insert  the  words  "either  the"  and  after  the  word 
^'construction"  insert  the  words  "or  otherwise  the  use,"  making  it  read  "and  for  either 
the  construction  or  otherwise  for  the  use  of  sewers." 

The  amendment  was  agreed  to. 

On  motion  of  Mr.  Barbour  the  Convention  adjourned  until  to-morrow,  Wednesday, 
March  5.  1902,  at  10  o'clock  A.  M. 


WEDNESDAY,  March  5,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  T.  Derieux,  of  Richmond. 

TAXATION  AND  FINANCE. 

The  President:    The  unfinished  business  before  the   Convention  to-day  is  the 
report  of  the  Committee  on  Taxation  and  Finance. 
Sections  4  and  5  were  read  and  adopted. 
Section  6  was  then  read. 

Mr.  Harrison:  Mr.  President,  I  wish  to  offer  an  amendment  here  to  strike  out 
the  words  "but  said  capitation  tax  shall  not  be  a  lien  upon  nor  collected  by  legal 
process  from  the  personal  property  which  may  be  exempt  from  levy  or  distress  under 

the  poor  debtors'  law."  ^    4.  i  4f 

Mr  President,  if  that  remains  in  this  report  and  becomes  a  part  of  this  law  ii 
will  cost  the  State  of  Virginia  in  revenue  something  over  $100,000  every  year.  It  is 
the  only  tax  of  any  consequence  that  the  negroes  pay  in  this  State.  They  pay  $65,000 
a  year  as  a  capitatiin  tax  when  the  capitation  tax  is  only  a  dollar  a  head.  I  have  here 
the  report  of  the  Auditor  of  Public  Accounts  for  the  year  1899-1  have  not  got  it  for 


DEBATES  OF  THE  CONSTITUTIOIsTAL  CONVENTION  OF  VIEGINIA.  2861 

1901 — and  it  shows  that  the  taxes  paid  by  the  negroes,  as  a  whole,  is  on  real  estate, 
$39,000  in  round  numbers,  and  on  personal  property,  $10,000  in  round  numbers:  and 
by  way  of  capitation  tax,  $05,000  in  round  numbers.  One-fourth  of  that,  $49,000,  goes 
to  the  free  schools,  being  10  cents  on  $100,  making  as  a  total  all  that  the  negroes 
pay  towards  the  support  of  the  free  schools  something  like  $10,000  on  all  the  real 
and  personal  property  of  this  State.  The  $65,000  that  they  pay  by  way  of  a  capita- 
tion tax,  and  which  is  collectable  only  out  of  property  that  would  be  released  by  this 
provision  as  a  general  thing,  is  the  great  bulk  of  the  money  which  they  contribute  to 
the  support  of  their  free  schools  and  to  the  education  of  their  children.  They  draw 
from  the  treasury  something  over  $2io0,000  in  the  shape  of  funds  for  the  education  of 
their  children  in  the  free  schools.  Now,  it  does  seem  to  me  to  be  a  wrong  principle 
to  release  these  negroes  from  the  payment  of  the  only  fund  that  they  contribute  to 
the  education  of  their  children.  I  understand  it  is  done  for  the  purpose  of  not  en- 
couraging them  to  vote.  I  think  we  ought  to  leave  our  suffrage  laws  to  themselves 
and  our  finance  laws  to  themselves.  I  am  not  in  favor  of  having  a  provision  put  intoi 
this  finance  report  by  which  the  revenues  of  this  State  will  derived  from  the  negroes 
will  be  almost  entirely  released. 

We  have  had  a  report  from  the  Auditor  which  shows  that  out  of  the  126,000  ne- 
groes assessed  with  capitation  taxes  there  are  only  about  32,000  of  them  assessed 
with  as  much  as  $100  worth  of  property.  If  you  release  that  portion  of  it  which  is 
exempt  from  levy  by  distress  it  will  take  up  nearly  the  $100  with  which  they  are 
assessed  by  way  of  personal  or  real  property.  Every  dollar  that  these  men  are  re- 
turned delinquent  is  made  up  by  the  tax  on  property.  Wherever  they  are  delinquent 
the  money  is  paid  out  of  the  other  general  funds  in  the  treasury;  so  that  all  the 
taxes  that  are  returned  delinquent  are  made  up  by  taxes  on  property.  The  tax  is 
little  enough;  anybody  can  pay  $1  a  year  to  the  free  schools.  To  release  virtually 
the  only  money  that  we  collect  out  of  this  class  of  people  for  the  education  of  their 
children  and  to  educate  their  children  at  the  expense  of  the  property  owners  of  this 
State — who  are,  as  a  rule,  the  white  people — is  intensely  objectionable  to  the  people 
of  the  white  sections.  There  has  been  considerable  demand  in  this  State  that  the 
negro  should  receive  only  those  taxes  which  they  themselves  pay,  towards  the  educa- 
tion of  their  children.  I  v/as  glad  that  the  report  of  the  Education  Committee  turned 
that  idea  down,  because  I  thought  it  was  a  cruel  and  a  harsh  one.  But  I  do  demand 
in  the  interest  of  the  people  who  pay  the  taxes  of  the  State,  tliat  we  shall  not  release 
them  from  the  taxes  they  now  pay.  The  great  bulk  of  this  money  is  collected  out 
of  them  in  the  shape  of  wages,  and  in  the  shape  of  work,  and  in  a  levy  upon  the 
property  they  would  be  entitled  to  hold  as  exempt  under  this  poor  debtor's  law.  They 
would  be  entitled  to  hold  their  horses,  cows,  furniture  in  their  houses,  and  nearly 
everything  they  own  exempt  from  levy  for  capitation  taxes.  I  think  we  ought  to 
strike  that  out,  and  vv^hen  we  come  to  the  consideration  of  the  suffrage  matter  we  can 
consider  what  ought  to  be  done  in  that  direction.  I  therefore  move  to  strike  out  the 
words  which  I  have  read. 

Mr.  Hamilton:  The  committee  hopes  these  words  will  not  be  stricken  out.  It 
is  a  matter  which  was  fully  gone  over  in  the  Committee  of  the  Whole,  and  the  object 
of  it  is  entirely  plain  to  you.  It  will  be  necessary  to  have  a  capitation  tax  in  any 
scheme  of  suffrage  that  is  devised,  and  it  was  not  thought  desirable  to  compel  the 
collection  of  that  tax  by  legal  process.  We  have  got  to  look  at  this  thing  all  around. 
We  cannot  treat  it  as  a  matter  separable  from  other  matters.  This  is  the  provision 
exactly  as  recommended  by  the  Suffrage  Committee,  without  any  dissension  in  that 
committee,  so  far  as  I  recollect. 

Mr.  Harrison:    Not  without  dissension  in  the  Suffrage  Committee,  I  do  not  think. 
Mr.  Hamilton:    I  do  not  recollect  that  there  was  any  controversy  about  it.  I 
know  it  is  exactly  the  proposition  that  was  recommended  by  the  Suffrage  Committee 
to  the  Taxation  Committee.    I  suppose  the  gentleman  from  Frederick  objected  to  it. 


2862 


DEBATES  OF  THE  COXSTITUTION'AL  CONVENTION  OF  VIRGINIA. 


I  did  not  know  about  that.  I  thought  it  was  unanimous.  At  any  rate  the  reasons 
for  it  are  good.  It  was  suggested  that  it  should  not  be  collected  from  anyone  by  legal 
process..  We  thought  the  people  who  had  ample  money  to  pay  it  ought  to  pay  it, 
but  that  we  should  not  compel  its  collection  out  of  what  is  called  the  poor  debtor's 
exemption.    I  therefore  hope  the  motion  to  strike  out  will  be  voted  down. 

Mr.  O'Flaherty:  Mr.  President,  I  hope  the  motion  of  the  gentleman  from  Win- 
chester will  prevail.  I  realize  the  argument  that  is  applied  to  this  matter;  but  I 
want  to  call  the  attention  of  the  committee  to  this  fact,  which  I  suppose  they  have 
thought  of,  but  which  to  my  mind  completely  gets  around  the  view  they  take  of  it. 
You  are  going  to  find  that  when  you  make  the  payment  of  the  capitation  tax  a  pre- 
requisite to  voting,  the  negro  knows — and  this  is  aimed  at  the  negro — that  he  does 
not  have  to  pay  this  capitation  tax,  and  he  will  simply  shift  the  burden  to  the  man 
who  is  a  candidate,  and  he  will  not  pay  it,  and  the  candidates  will  have  to  pay  it. 
In  other  words,  you  are  giving  a  greater  chance  for  fraud.  Here  is  a  man  who  knows 
he  is  going  to  vote,  because  somebody  will  pay  his  capitation  tax,  and  there  is  no  way 
on  earth  to  collect  that  capitation  tax  from  him.  He  is  absolutely  immune.  Whereas 
the  poor  white  man  who  has  a  tax  to  pay  on  his  horse,  and  on  his  cow,  and  on  his 
little  farm,  will  have  to  pay  that,  and  the  property  he  owns  under  the  poor  debtor's 
law  will  not  be  exempt.  I  say  this  is  a  discrimination  against  the  white  man.  Every 
body  Imows  the  negro  Is  going  to  vote,  and  he  will  simply  put  the  burden  on  the  can- 
didate.   The  payment  will  not  prevent  it,  but  payment  ahead  of  election  will. 

Now,  I  say  it  is  not  fair  to  the  property  owners  of  Virginia,  Mr.  President,  to 
shift  the  burden  of  $100,000  of  taxes  and  put  it  on  the  property  of  the  whites,  or  put 
it  on  the  property  owners  of  Virginia,  while  these  people  who  do  not  pay  anything 
for  the  support  of  the  schools,  who  do  not  pay  anything  for  the  support  of  govern- 
ment, are  going  to  be  exempt  from  the  payment  of  their  taxes.  We  are  putting  them 
on  a  higher  plane  than  we  do  the  poor  white  widow  or  the  orphan  of  this  State.  And 
this  is  in  the  interest,  we  say,  of  suffrage.  I  doubt  the  propriety  of  it;  I  doubt  the 
wisdom  of  it,  and  I  do  not  believe  it  will  be  practicable.  I  think  the  gentlemen  who 
come  here  from  the  Black  Belt  will  find  hereafter  that  they  have  made  a  mistake. 
I  know  in  my  county  this  capitation  tax  is  partially  collected,  and  all  that  is  col- 
lected from  some  delinquents  is  collected  because  of  the  fact  that  they  know  their 
property  will  be  taken  unless  it  is  paid.  The  gentleman  from  Petersburg,  for  whom 
I  have  great  respect,  says  the  Suffrage  Committee  reports  this.  Well,  so  far  as  I 
know  anything  about  the  matter,  the  Suffrage  Committee  has  never  reported  any- 
thing. I  did  not  say  it  was  in  that  report.  I  stated  that  this  was  a  recommendation 
which  the  Suffrage  Committee  sent  to  the  Taxation  Committee,  with  the  request  that 
they  adopt  it. 

Mr.  O'Flaherty:  I  did  not  understand  you  to  say  that.  But  I  say,  as  far  as  this 
Convention  is  concerned,  there  is  no  such  recommendation  before  it,  and  I  do  not 
wish  to  mix  up  this  question  with  the  suffrage;  and  I  do  protest  against  the  fact  that 
the  white  people  of  the  Valley  of  Virginia  must  pay  the  taxes  that  go  to  educate  the 
negro,  and  that  you  gentlemen  from  the  Black  Belt  are  not  willing  to  put  a  burden 
upon  him  and  help  us.  You  will  lose  hundreds  of  thousands  of  dollars  yearly,  and  that 
burden  will  fall  upon  the  property  of  the  State.  The  negro  does  not  pay  this  tax,  as 
is  shown  by  the  distinguished  member  from  Winchester.  According  to  what  he  has 
just  said,  they  pay  the  pitiful  sum  of  about  $10,000  into  the  treasury  of  Virginia  for 
school  purposes,  collected  from  real  and  personal  property  tax.  I  doubt  the  pro- 
priety of  taking  the  money  of  the  white  people  to  educate  the  negro.  I,  as  a  tax- 
payer, myself,  know  that  you  are  taking  the  burden  off  of  these  men  and  putting  it 
upon  me.  I  have  got  to  pay  my  tax,  and  I  know  that  every  dollar  of  the  negroes' 
capitation  tax  which  you  relieve,  puts  the  burden  upon  somebody  else.  This  com- 
mittee found  that  it  was  impossible  at  the  present  time  to  separate  the  subjects  of 
taxation  in  the  counties  from  those  of  the  State,  and  put  it  upon  general  subjects, 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OF  VIEGIXIA. 


2863 


showing  that  Virginia  is  yet  poor;  showing  that  the  counties  must  bear  a  greater  bur- 
den than  they  ought  to  bear,  and  yet  you  are  striking  down  one  of  the  means  of 
reaching  the  goal  the  honored  chairman  wants  to  reach,  certainly  in  1913.  I  hope 
this  will  be  accepted,  and  voted  favorably  upon.  Let  us  not  discriminate  against  the 
poor  white  man  and  the  poor  white  woman  of  Virginia  in  favor  of  the  negro.  I  want 
to  treat  him  fairly;  1  want  to  treat  him  justly;  but  when  we  are  willing  to  go  down 
in  our  pockets  and  educate  him  we  have  done  all  that  we  ought  to  do.  Let  the  gentle- 
men in  favor  of  equal  and  uniform  taxation,  as  my  friend  from  Petersburg  is,  come 
here  and  make  it  equal  and  uniform  upon  the  negro  as  well  as  upon  the  white  man. 
Mr.  Hamilton:    Is  this  not  equal  and  uniform? 

Mr.  O'Flaherty:  No,  sir;  you  say  yourself  that  it  is  for  the  purpose  of  disfran- 
chising him  that  you  are  taking  the  burden  off. 

Mr.  Hamilton:  No,  sir;  it  applies  as  well  to  the  white  as  to  the  black.  It  may 
have  such  a  bearing  as  my  friend  suggests,  but  I  made  no  such  statement. 

Mr.  O'Flaherty:  I  think  it  is  understood  that  is  the  object  of  this  report,  and  I 
say  that  any  man  who  is  not  willing  to  pay  something  toward  the  support  of  the 
government  ought  not  to  be  permitted  to  participate  in  that  government.  If  you  are 
willing  to  let  the  negroes  vote  by  paying  a  certain  amount  of  tax  on  personal  prop- 
erty and  on  real  estate  why  not  let  them  in  for  paying  the  tax  in  this  way?  I  do 
not  make  that  argument,  but  I  do  say  that  you  are  putting  the  burden  where  it  does 
not  belong.  I  am  trying  to  take  care  of  myself  now,  and  of  my  people.  I  am  willing  to 
help  as  far  as  I  can,  but  God  helps  those  who  help  themselves.  I  say  again  the  negro 
will  vote,  and  will  not  be  able  to  pay  this  tax,  and  somebody  else  will  have  to  pay 
it,  and  it  v/ill  fall  at  last  upon  the  man  who  is  a  candidate  for  office. 

Mr.  R.  Walton  Moore:  Mr.  President,  this  section  as  has  been  stated  here,  came 
from  the  Suffrage  Committee.  It  is  true  it  does  not  appear  in  the  competing  plans 
that  have  been  presented  by  the  Suffrage  Committee,  but  almost  by  unanimous  vote 
the  Suffrage  Committee  recommended  it  to  the  Committee  on  Taxation  and  Finance, 
the  idea  of  that  committee  being  that  any  suffrage  plan  that  we  are  likely  to  adopt 
will  embody  the  prepayment  of  a  capitation  tax  as  a  feature.  If  there  is  one  thing 
that  is.  a  concession  up  to  this  point  in  respect  to  the  settlement  of  the  suffrage 
problem,  that  is  the  thing,  and  this  section  comes  to  us,  I  repeat,  with  the  endorse- 
ment of  the  Suffrage  Committee,  given  almost  unanimously.  If  it  should  appear  here- 
after that  the  prepayment  of  the  capitation  tax  is  not  a  feature  of  our  suffrage  plan, 
we  can  eliminate  what  is  proposed  now,  but  for  the  time  being  it  is  certainly  wise 
to  adopt  this  provision,  and  I  will  take  the  liberty  of  going  a  point  further  and  sug- 
gesting that  when  we  do  ■  this  we  proceed  in  the  line  that  has  been  taken  by  other 
Southern  States.  The  State  of  Mississippi,  I  believe,  has  been  very  careful  to  pro- 
vide that  it  is  desirable  that  a  certain  class  of  citizens  shall  not  be  encouraged  to 
pay  this  capitation  tax  because  they  shall  be  encouraged  to  vote.  The  aim  is  to  dis- 
courage them  from  voting. 

Mr.  Flood:  As  for  myself,  I  want  to  say  that  I  have  always  been  opposed  from 
the  very  beginning  of  this  Convention,  to  the  payment  of  a  capitation  tax  as  a  pre- 
requisite to  the  right  to  vote.  I  do  not  believe  in  giving  a  man  a  right  to  vote  and 
then  taxing  him  for  the  exercise  of  that  right;  but  in  deference  to  the  other  members 
of  the  committee  I  yielded  my  views  and  signed  a  report  which  makes  the  pa^'ment  of 
the  capitation  tax  a  prerequisite  to  the  right  to  vote.  But  this  is  a  different  proposi- 
tion. As  a  revenue  measure  it  is  a  distinct  disadvantage;  as  a  suffrage  provision,  I 
do  not  regard  it  as  being  worth  a  snap  of  your  finger.  The  suffrage  report  requires 
that  the  capitation  tax  should  be  paid  six  months  before  the  electors  can  vote.  That 
will  do  as  much  to  prevent  a  man  from  voting  as  the  fact  of  the  tax  being. non-col- 
lectible by  legal  process,  because  a  man  who  pays  this  tax  six  months  before  election 
day  in  order  to  preserve  his  vote  will  pay  it  without  coercion.  The  fact  of  its  not 
being  collectible  is  not  going  to  help  the  suffrage  of  this  Commonwealth  at  all.  The 


2864  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

people  who  will  escape  the  payment  of  this  tax  are  those  who  have  lost  their  right 
to  vote  under  the  six  months'  provision.  I  would  support  such  a  proposition  as  tne 
one  suggested  by  the  gentleman  from  Prince  William  a  few  moments  ago.  You  can 
collect  it  after  the  beginning  of  the  six  months.  Your  officer  need  not  undertake  to* 
collect  it  before  the  six  months  prior  to  election  day  began  to  run.  Mr.  President, 
this  provision  will  result  in  bringing  about  or  rather  intensifying  just  what  this  Con- 
vention was  called  to  prevent.  The  people  of  Virginia  have  been  restless,  for  years 
at  having  to  divide  their  school  funds  with  the  negro.  They  have  been  tired  of  seeing 
their  taxes  appropriated  to  run  negro  schools,  and  of  having  none  of  those  taxes  got- 
ten out  of  the  negroes,  except  a  paltry  sum,  beyond  what  comes  from  the  capitation 
tax.  You  now  propose  to  relieve  the  negro  of  the  capitation  tax  which  lie  pays  for 
the  support  of  the  public  schools,  and  thereby  relieve  him,  practically,  of  all  burden 
for  the  support  of  public  schools.  Instead  of  making  the  white  man's  burden  easier, 
you  propose  to  make  it  harder;  instead  of  giving  him  the  relief  for  which  he  sent 
you  here,  you  relieve  the  man  who  had  no  part  in  your  existence  as  a  Convention.  I 
do  not  believe  in  dealing  with  the  suffrage  in  this  way.  I  believe  in  more  strenuous 
suffrage  provision,  but  I  am  willing  as  a  com.promise  to  have  a  poll  tax  as  a  part  of  it.. 
Let  us  put  a  capitation  tax  in,  if  you  will.  Let  us  make  the  payment  of  ft  six  months^ 
prior  to  the  election  a  prerequisite  to  the  right  to  vote;  but  do  not  let  us  relieve  from 
the  payment  of  that  tax  this  class  who  novv  pay  so  little  to  the  support  of  the  public 
schools,  and  yet  get  so  much  benefit  from  them.  The  people  in  the  county,  as  a 
rule,  pay  their  capitation  taxes.  It  is  in  the  cities  they  do  not  pay  it.  In  the  city  of 
Richmond  out  of  19,000  people  assessed  for  capitation  taxes,  nearly  1G,000  of  them 
were  returned  delinquent.  I  think  we  ought  to  put  in  motion  the  machinery  that  v/ill 
enforce  the  collection  of  this  tax  and  m^ake  these  people,  who  have  not  been  bearing 
their  share  of  the  burden  of  the  public  schools,  come  up  and  do  so,  instead  of  reliev- 
ing them  by  constitutional  provision.  I  trust  the  amendment  of  the  gentleman  from 
Frederick  will  be  adopted. 

Mr.  R.  Walton  Moore:  Then  the  gentleman  proceeds  upon  the  idea  that  prepay- 
ment of  a  capitation  tax  should  not  be  a  feature  of  the  suffrage  plan. 

Mr.  Flood:  I  say  that  is  my  individual  view;  but  I  surrendered  that  view  out 
of  deference  to  the  members  of  the  committee. 

Mr.  R.  Walton  Moore:  If  it  is  to  be  a  feature  of  the  suffrage  plan,  would  the 
gentleman  favor  a  compulsory  process  in  order  to  make  the  negro  pay  that  tax? 

Mr.  Flood:  I  would,  because  I  have  no  confidence  in  the  theory  that  the  prepay- 
ment is  going  to  affect  our  suffrage  one  way  or  the  other.  I  have  always  maintained 
and  believed  that  more  white  people  will  be  stricken  from  our  registration  rolls  than 
negroes,  by  such  a  provision. 

Mr.  Davis:  I  offer  the  amendment  now,  and  give  notice  that  I  offer  it  as  a  sub- 
stitute for  the  section. 

Mr.  Meredith:  We  can  only  take  the  report  the  committee  made  to  us.  Wnether 
one  gentleman  was  present  or  absent,  we  do  not  know,  but  we  understood  it  was  the 
unanimous  wish  of  the  Committee  on  Suffrage  that  we  should  have  a  non-compulsory 
feature  in  regard  to  the  capitation  tax  in  this  report. 

It  does  not  require  much  argument  to  show  that  if  you  are  going  to  have  a  pre- 
payment of  the  poll  tax  as  a  prerequisite  to  the  right  to  vote,  you  have  got  some 
object  in  it.  It  must  be  either  that  you  think  you  will  have  a  source  of  revenue  or 
that  you  will  keep  some  people  from  voting.  The  requirement  as  to  its  being  col- 
lected before  voting  would  hardly  have  been  justified  upon  the  idea  of  collecting  rev- 
enue, because  it  would  not  be  necessary.  If  you  are  anxious  to  collect  revenue  you 
could  do  it  by  having  the  payment  of  it  compulsory  without  any  prerequisite  as  to  the 
right  to"  vote.  But  having  adopted  the  plan  that  you  shall  have  it  as  a  prerequisite 
to  the  right  to  vote,  you  must  have  the  idea  of  keeping  certain  people  from  voting. 
Now,  if  that  is  your  object,  carry  it  out  and  do  not  go  half  way  and  fall  when  you 


DEBATES  OF  lEE  COXSIITUIIOXAL  COXTEyilOX  OF  VIEGIXIA. 


2S65 


are  about  to  reach  the  resulrs  of  your  efforts.  We  all  knoTr  that  if  you  make  the 
collection  of  this  tax  compulsory  you  Trill  simply  defeat  the  real  object  you  have  in 
vie^. 

The  very  prime  thing  that  brought  this  body  into  being  was  to  affect  the  suf- 
frage of  this  State,  and  we  are  here  new  for  the  purpose  of  affecting  that  in  the  best 
way  we  can.  so  that  this  State  may  be  relieved  of  the  systems  that  have  been  carried 
on  in  elections  during  the  last  few  years. 

You  are  simply  face  to  face  with  the  proposition  as  to  whether  you  do  not  be- 
lieve you  had  better  give  up  a  little  revenue  than  to  have  what  you  have  had  in  thia 
State  for  the  last  ten  or  fifteen  years.  Xow.  you  take  your  choice.  You  know  we 
are  called  here  to  get  rid  of  that  state  of  affairs,  and  the  simple  proposition  we  have 
before  us  to-day  is  whether  we  shall  take  an  effective  measure  by  which  we  can  over- 
come it,  although  we  may  have  to  bear  a  little  burden  in  addition,  so  far  as  revenue 
is  concerned. 

If  the  gentleman  from  Appomattox  (Mr.  Flood)  wants  to  carry  out  his  idea  of 
getting  a  means  of  support  and  revenue,  it  can  be  done  by  the  suggestion  that  was 
made  by  the  gentleman  here  on  my  right  the  other  day,  that  the  counties  should  be 
allowed  to  levy  an  inaependent  capitation  tax  to  be  used  for  school  purposes,  if  they 
see  fit:  but  when  you  come  to  the  question  of  voting,  you  ought  to  make  the  restric- 
tions such  as  will  accomplish  the  object  you  have  in  view.  There  is  no  use  talking 
about  the  prepayment  of  a  capitation  tax,  and  then  turning  around  and  telling  a  man 
that  if  he  does  not  pay  it  in  six  months  voluntarily,  yoti  will  collect  it.  That  would 
be  simply  extending  the  time  of  payment. 

The  cry  has  been  raised  on  this  fioor  and  elsewhere  that  the  negro  will  always 
pay  this  tax,  no  matter  whether  you  have  it  voluntary  or  not.  I  do  nor  believe  that, 
but  surely  if  you  tell  him  that  if  he  does  not  pay  it  now  he  shall  not  vote,  and  if  he 
does  not  ray  it  now  it  will  be  collected  six  months  from  now,  he  will  sa.y,  '"'If  I  can 
pay  in  six  months,  and  then  I  can  vote,  I  will  do  so."  You  will  have  defeated  one  of 
the  objects  for  which  this  Convention  was  called. 

2-Ir.  George  K.  Anderson:  I  desire  to  offer  the  following  amenament,  Mr.  Presi- 
dent. After  the  word  "but"'  in  line  12,  insert  the  words  ''"'the  G-eneral  Assembly  may 
provide  that"'  so  that  the  section  would  read:  "But  the  General  Assembly  may  provide 
that  such  capitation  tax  shall  not  be  a  lien  upon  nor  collected  by  legal  process."" 

Mr.  President,  I  do  not  want  to  discuss  this  matter,  but  simply  to  say  this:  ""The 
object  of  the  amendment  is  to  lodge  with  the  General  Assembly  the  power  and  the 
authority  to  say  that  the  capitation  tax  shall  not  be  collected  by  legal  process  out  of 
the  poor  debtors'  exemption.  That  is  all  there  is  of  it  The  whole  matter,  as  appears 
from  the  discussion  which  has  occurred  here  this  morning,  is  an  experiment.  Nobody 
knows  what  it  may  lead  to. 

As  a  matter  of  fact,  the  poll  tax  prerequisite  is  almost  an  experiment,  except  for 
the  few  years  of  experience  we  had  with  it  twenty  years  ago.  when  every  gentleman 
upon  this  floor  acquainted  with  the  political  history  of  the  Commonwealth  knows  that 
it  grew  to  be  so  off'ensive  to  the  people  of  the  State  that  they  rose  up  as  one  man 
and  demanded  the  repeal  or  an  amendment  of  the  Constitution. 

Mr.  Carter:  "VTas  not  that  because  the  capitation  tax  was  to  be  paid  up  to  the 
very  day  before  the  election? 

Mr.  George  K.  Anderson:  Tnere  is  no  doubt  of  the  truth  of  the  statement  made 
by  my  friend  from  Hanover  (Mr.  Carter)  that  that  was  in  large  measure  the  reason 
why  the  tax  became  so  obnoxious  to  the  people  of  the  State  of  Virginia;  but  I  tell 
you  now,  gentlemen,  while  I  know  it  is  a  hopeless  thing  to  argue  against  a  poll  tax 
prerequisite  in  the  State  of  Virginia,  that  thing  will  rise  up  to  give  us  trouble  in 
the  years  to  come. 

Mr.  Carter:  Could  there  be  any  more  fruitful  source  of  trouble  than  to  leave  it  to 
the  Legislature  and  let  the  issue  be  made  at  every  election,  whether  it  is  to  be  re- 
pealed or  not  ? 


2866  DEBATES  or  THE  COJ^STITUTIONAL  CONVEXTIOISr  OF  VIRGimA, 

Mr.  George  K.  Anderson:  I  think  if  the  issue  is  to  be  made,  if  the  people  of  Vir- 
ginia want  the  issue  to  be  made,  the  people  ought  to  have  the  right  to  have  the  issue 
made,  and  they  ought  to  have  the  right  to  have  it  made  and  passed  upon  by  their 
representatives  in  the  General  Assembly,  and  ought  not  to  be  required  to  resort  to 
the  slow  process  of  a  constitutional  amendment  in  order  to  get  rid  of  that  tax. 

I  say,  gentlemen,  this  question  is  one  of  experiment.  It  involves  the  question  of 
the  right  of  citizens  of  this  Commonwealth  to  vote,  and  it  involves  In  large  measure 
the  revenues  of  the  Commonwealth.  If  this  capitation  tax,  by  a  Constitutional  amend- 
ment is  abolished,  you  will  be  compelled  to  abolish  this  provision  also  at  the 
same  time. 

For  those  reasons  I  think  it  is  wisest  to  leave  that  question  to  the  General  As- 
sembly. 

Mr.  WalKer:  Would  not  the  effect  of  the  adoption  of  the  amendment  proposed 
by  the  gentleman  be  that  the  Convention  could  not  fix  on  any  complete  and  definite 
suffrage  provision?  We  would  not  be  able  to  know  what  kind  of  suffrage  plan  we 
had  adopted  until  the  Legislature  had  acted  on  this  matter  of  your  amendment.  We 
could  not  calculate  what  the  effect  would  be,  because  we  could  not  tell  for  certain 
what  the  Legislature  would  do  about  it,  and  besides  that,  the  Legislature  would  be 
able  at  any  time  to  change  it,  and  it  would  be  a  shifting  thing. 

Mr.  George  K.  Anderson:  I  would  suggest  to  my  friend  that  thw  power  proposed 
to  be  given  to  the  Legislature  is  not  to  take  away  the  capitation  tax  as  a  prerequisite 
to  voting. 

But  it  is  for  the  Legislature  to  say  whether  or  not  the  six  chairs,  the  six  plates, 
the  six  forks,  the  six  knives,  the  one  horse  of  a  man,  or  the  two  horses  if  he  is  a 
farmer,  shall  be  taken  to  pay  a  capitation  tax  of  only  a  dollar.  My  friend  from  West- 
moreland (Mr.  Walker)  suggests  that  the  Convention  would  not  know  how  to  com- 
plete a  suffrage  plan  in  the  Constitution  unless  it  knew  whether  or  not  this  capita- 
tion tax  could  be  made  out  of  the  poor  debtor's  exemption.  I  say,  Mr.  President,  and 
gentlemen  of  the  Convention,  that  if  you  make  it  a  prerequisite,  it  will  be  safe  to 
enable  the  man  to  vote,  and  any  man  who  has  that  much  property  will  pay  the  tax. 
The  negro  you  are  trying  to  reach  is  not  the  married  negro  with  a  horse  and  wagon 
and  a  cow  and  household  property,  but  he  is  the  single  negro  who'  floats  about  from 
one  part  of  the  Commonwealth  to  another,  upon  whom  you  cannot  lay  your  hand, 
whose  name  you  do  not  know,  and  all  of  them  are  alike.  The  people  you  will  hit  by 
this  amendment  will  be  the  poor  white  people  of  the  Commonwealth.  The  treasurer 
will  go  to  their  homes  and  collect  upon  their  personal  property,  and  every  time  he 
cannot  collect  the  capitation  tax,  the  common  schools  of  the  Commonwealth  will 
suffer. 

It  does  seem  to  me  this  matter  ought  not  to  be  passed  in  the  shape  it  is,,  but  that 
this  amendment  or  some  other  amendment  ought  to  be  adopted. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Alleghany  (Mr.  Anderson). 

The  amendment  was  rejected. 

The  President:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
gentleman  from  Winchester  (Mr.  Harrison). 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — Ayes,  21;  noes,  46. 
The  motion  to  strike  out  was  rejected. 

The  President:    The  question  recurs  now  on  the  adoption  of  Section  6. 

Mr.  Epes:  Mr.  Chairman,  I  desire  to  offer  an  amendment,  that  I  started  to  present 
to  the  Convention  a  few  days  ago.  It  is  an  amendment  to  Section  6,  by  inserting  after  the 
word  "said"  in  line  12,  the  word  "  State,"  which  will  leave  the  present  provision  in 
regard  to  State  capitation  taxes  non-collectible  out  of  the  poor  debtor's  exemption. 
I  then  propose  to  add  at  the  end  of  the  section  the  following: 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA.  2867 

And  the  General  Assembly  may  authorize  the  board  of  supervisors  of  any  county 
or  common  council  of  any  city  or  town,  to  levy  an  additional  capitation  tax  not  exceed- 
ing $1  per  annum  on  each  of  such  persons,  which  shall  be  applied  in  aid  of  the  public 
schools  of  such  county,  city  or  town,  or  to  such  other  county,  city  or  town  purposes  as 
they  shall  determine. 

The  idea  is  to  require  the  negroes  to  pay  a  more  equitable  proportion  of  the  burdens 
of  the  public  school  system,  and  of  the  local  expenses  of  the  counties,  cities  and 
towns,  than  they  do  now.  As  has  been  repeatedly  said  here,  they  pay  a  very  small 
portion  of  the  taxes  which  go  to  support  the  public  schools.  The  white  portion  of 
the  Black  Belt  of  the  State  feel  very  keenly  the  fact  that  the*  school  taxes  which  they 
pay  go  to  support  the  negro  schools.  This  proposition,  if  carried,  will  require  the 
negroes  to  pay  a  greater  proportion  of  that  tax,  which  is  applied  to  the  public  schools 
and  local  purposes.  At  the  same  time  it  can  be  added  by  the  Suffrage  Commfttee  in 
the  suffrage  ordinance,  by  simply  inserting  a  provision  that  all  capitation  taxes 
assessed  against  them  shall  be  prepaid  six  months  before  the  election.  I  did  not  put 
that  in  as  it  is  not  a  part  of  my  amendment.  I  simply  mention  the  fact  that  the  Con- 
vention, if  it  thinks  proper,  can  include  this  suffrage  ordinance  hereafter.  The  object 
of  this  amendment  now  is  to  raise  an  additional  fund  for  free  school  purposes  and 
for  local  purposes,  and  to  make  the  negro  vrho  pays  no  part  worth  mentioning  to  that 
fund  pay  a  more  equitable  proportion  of  it. 

Mr.  Stuart:  Mr.  President,  I  trust  the  members  of  the  Convention  will  pardon 
me  for  a  few  minutes  and  permit  me  to  give  some  suggestion^  which  occur  to  me  in 
the  consideration  of  this  amendment.  It  may  be  recalled  by  some  of  the  members 
of  the  Convention  that  I  offered  a  suffrage  scheme  which  embodied  in  part  the  prin- 
ciple proposed  by  the  gentleman  from  Dinwiddle  (Mr.  Epes),  that  is  that  the  capita- 
tion tax  should  be  adjustable  in  amount  to  varying  conditions  as  they  were  found  to 
exist  throughout  the  State,  so  that  counties  which  felt  that  it  vrould  be  proper  to 
have  a  considerable  capitation  tax  might  avail  themselves  of  the  opportunity  of  doing 
so,  through  their  boards  of  supervisors;  all  those  counties  which  felt  that  the  capita- 
tion tax  already  in  force  and  levied  by  the  State  of  $1.50  was  sufficient  should  confine 
their  tax  to  that  amount.  As  an  original  proposition,  representing  as  I  do  a  constitu- 
ency beyond  the  Alleghanies,  I  would  not  be  prepared  to  give  my  adherence  to  the 
proposition  of  the  gentleman  from  Dinwiddle.  I  am  one  of  those  who  believe  that 
the  obligation  of  educating  the  masses  of  the  people  rests  properly  upon  property; 
and  yet  when  I  consider  that  the  proposition  suggested  by  the  gentleman  from  Din- 
widdle carries  with  it  some  possibilities  in  the  solution  of  our  suffrage  problem,  I  feel 
that  it  is  my  duty  to  support  his  amendment.  The  liberty  is  given  through  the  Legis- 
lature to  the  boards  of  supervisors  of  any  county  to  increase  the  capftation  tax  from 
^150  levied  by  the  State,  by  the  amount  of  $1,  which  additional  $1  is  to  be  levied  by 
the  board  of  supervisors  of  that  county.  I  dislike  to  refer  to  the  provisions  of  the 
suffrage  scheme  which  I  have  already  referred  to.  The  members  of  the  Convention 
who  recall  any  of  the  salient  features  of  that  proposition  will  remember  that  upon 
that  one  point  turns,  very  largely,  its  efficiency.  The  whole  of  the.'  provision  as  to 
capitation  taxes  is  presented  by  the  Taxation  Committee  as  a  result,  I  may  say.  of  a 
suggestion  of  the  Suffrage  Committee,  and  they  adopted  practically  waat  the  Suffrage 
Committee  thought  was  best  in  dealing  with  this  question.  I  would  like  to  have  the 
memlDers  of  the  Convention  deal  with  it  further  on  the  line  suggested,  with  regard 
to  the  proposition  made  by  myself  on  suffrage.  I  only  wish  to  make  this  personal 
explanation,  that  whereas  I  should  dislike  to  give  my  adherence  to  such  a  principle 
as  an  original  proposition,  yet,  under  the  circumstances  which  confront  us,  and  under 
the  difficulties  which  surround  the  solution  of  the  problem  of  suffrage  and  the  prob- 
lem of  making  the  negro  bear  his  just  proportion  of  the  burden  of  educating  his  own 
race,  I  feel  that  it  would  be  only  the  proper  thing  to  do.  Looking  at  him  from  the 
standpoint  of  the  greatest  good  to  the  greatest  number  and  considering  that  it  entails 


2868  DJEiSATES  or  the  CONSTITUTIOJiTAL  CONVENTION  OF  VIRGINIA. 

no  burden  upon  the  white  districts  of  the  State  except  such  as  they  may  willingly 
assume,  through  their  boards  of  supervisors,  and  we  all  know  that  no  white  county 
will  ever  increase  the  capitation  tax,  I  think  it  is  the  duty  of  the  members  of  this 
Convention  to  give  their  full  and  cordial  support  to  this  proposition,  and  adopt  th© 
amendment  as  presented. 

Mr.  Keezell:  Do  I  understand  that  it  is  contemplated  that  the  payment  of  this 
additional  dollar  should  be  a  prerequisite  to  voting? 

Mr.  Stuart:  Under  my  scheme  it  is,  but  not  under  this  amendment.  This  com- 
mittee does  not  deal  with  that  feature. 

Mr.  Meredith:  May  I  call  your  attention  to  the  fact  which  possibly  may  have 
some  bearing  upon  your  position  in  this  matter?  The  committee  had  before  it  a 
resolution  something  like  this;  but  on  reconsideration  it  vv^as  voted  down  by  a  very 
narrow  majority.  I  want  to  call  your  attention  to  the  fact  that  this  does  not  give 
the  power  that  the  resolution  did  which  was  passed  by  the  committee.  It  does  not 
give  the  power  to  the  board  of  supervisors  to  determine  this  thing  for  themselves, 
but  it  provides  simply  that  the  General  Assembly  may  authorize  any  county  to  pro- 
ceed in  that  vv^ay.  So  you  have  got  to  get  first  the  consent  of  the  General  Assembly 
before  any  county  can  proceed  to  assess  this  capitation  tax. 

Mr.  Keezell:  I  object  to  this  amendment  for  the  reason  that  I  do  not  believe  it 
is  proper  or  right  to  undertake  to  impose  a  heavier  head  tax  upon  the  people  of  this 
Commonwealth  than  $1.50.  You  are,  by  this  resolution,  giving  authority  to  the  Gen- 
eral Assembly  to  impose  by  the  action  of  the  board  of  supervisors  of  a  county  or  com- 
mon council  of  a  city,  an  additional  head  tax  of  $1,  making  the  tax  $2.50.  What  is 
the  effect  of  that?  Evidently  what  is  intended  by  this  resolution  is  that  if  you  go 
to  a  certain  county  or  to  a  certain  section  where  the  people  are  relieved  of  paying 
the  $1.50  as  imposed  by  the  State  as  a  prerequisite  to  voting,  which  is  distributed  to 
the  public  schools  of  the  State  according  to  school  population,  they  may  levy  this 
additional  tax,  which  they  may  use  the  process  of  the  law  to  collect,  and  keep  it  for 
their  own  use.  What  is  the  effect  of  that?  Take  a  section  like  the  one  which  I 
represent  on  this  floor,  where  they  always  have  paid  the  capitation  tax  and  where  I 
have  no  doubt  they  always  will.  You  will  find  that  their  money  is  taken  and  dis- 
tributed to  the  sections  of  the  State  where  the  capitation  tax  is  not  paid,  and  they 
get  no  more  credit  in  the  method  of  distributing  this  capitation  tax  than  they  would  if 
they  did  not  pay  the  tax.  Take  a  city  like  Norfolk  or  Richmond,  or  a  county  like 
Prince  Edward  and  other  counties  of  this  Commonwealth,  where  a  very  small  per 
cent,  of  the  capitation  tax  is  paid  for  free  school  purposes,  and  the  public  schools  of 
those  counties  get  the  same  amount  of  money  for  their  schools  that  they  would  get 
if  they  had  paid  up  every  dollar  of  the  capitation  tax,  while  those  cities  which  now 
pay  practically  all  that  is  assessed  against  them  get  no  more  advantage,  so  far  as 
the  distribution  of  the  public  money  is  concerned,  than  if  they  did  not  pay  it.  You 
propose  by  this  proposition,  to  accentuate  that  condition. 

Mr.  Stuart:  Do  you  think,  under  this  provision,  it  would  be  possible  to  levy  an 
additional  tax  of  one  dollar  per  head  in  the  county  of  Rockingham?  The  representa- 
tive of  the  county  in  the  General  Assembly  may  ask  for  it,  the  Legisiature  must  grant 
it  and  the  board  of  supervisors  must  be  elected  to  give  it.  All  of  these  conditions 
must  meet. 

Mr.  Keezell:  We  have  had  agitation  in  our  county  for  years  as  to  whether  or  not, 
if  you  elect  certain  men  to  the  General  Assembly,  they  would  not  favor  some  process 
of  restoring  the  compulsory  system  of  labor  upon  the  roads  which  is  in  fact  nothing 
but  an  additional  capitation  tax.  Take  it  for  as  far  back  as  I  can  remember,  and 
there  has  been  a  capitation  tax  of  $1.50.  The  people  are  satisfied  to  have  that  tax, 
and  there  is  no  opposition  to  it;  but  if  you  make  it  possible  that  another  dollar  shall 
be  levied,  every  time  you  come  to  elect  a  member  of  the  Legislature  you  are  going 
to  have  that  issue.    I  do  not  pretend  to  say  that  there  are  not  people  in  the  county 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA.  2869 

who  would  favor  it,  but  you  will  have  that  question  raised,  and  you  will  have  agitation 
upon  that  subject,  v/hich  I  think  you  ought  not  to  have.  Therefore  1  am  opposed  to 
this  amendment.  So  far  as  my  section  of  the  State  is  concerned,  you  have  nothing 
to  gain  by  it  except  the  probability  of  causing  agitation  every  time  you  elect  a  mem- 
ber of  the  General  Assembly. 

You  have  nothing  to  gain  by  it  because  if  you  pay  all  of  your  capitation  tax  now 
you  get  no  more  credit  for  it  than  the  section  does  that  pays  none.  Not  only  is  it 
distributed  to  those  counties  who  do  not  pay  their  proportion  of  the  tax,  but  you  go 
into  the  revenues  received  from  other  subjects  of  taxation,  and  take  that  money  which 
has  been  paid  by  sections  of  the  State  where  taxes  are  really  paid  and  make  good  to 
the  school  fund  all  or  practically  ail  of  the  money  which  is  lost  to  it  by  the  default 
of  the  taxpayer  in  paying  his  head  tax.  I,  for  one,  do  not  think  we  ought  to  encum- 
ber this  article  by  putting  in  this  provision  which  is  going  to  be,  in  my  opinion,  a 
source  of  dissatisfaction  throughout  all  the  sections  of  the  State,  by  making  it  pos- 
sible to  put  a  burden  of  $2.50  upon  a  head,  when  you  now  only  have  a  burden  of  $1.50. 

Mr.  Robertson:  Mr.  President,  as  I  am  the  representative  of  what  is  generally 
known  as  the  white  part  of  the  State,  I  desire  to  say  a  few  words  in  regard  to  this 
amendment  offered  by  the  gentleman  from  Dinwiddle.  I  agree  with  every  word  the 
gentleman  from  Russell  (Mr.  Stuart)  has  said  about  this  matter.  It  does  seem  to  me 
that  there  are  two  reasons  why  this  amendment  is  a  good  one.  One  is  that  the  people 
in  the  Black  Belt  of  Virginia  certainly  have  a  great  cause  of  complaint  with  refer- 
ence to  the  burden  that  is  put  upon  them  in  educating  negro  children  in  that  part  of 
State.  They  can  get  relief  to  some  extent  if  the  people  of  the  counties  in  that  part 
of  the  State  choose  to  put  it  upon  themselves.  I  take  it  for  granted  that  the  Legis- 
lature will  pass  any  law  that  the  people  of  those  counties  want  passed,  because  it  is 
a  local  matter.  Those  of  us  who  do  not  need  any  law  of  the  kind,  like  the  county 
of  Rockingham,  from  which  the  gentleman  who  has  just  taken  his  seat  comes,  will 
not  be  disturbed  by  it.  But  the  people  who  live  in  that  part  of  the  State  have  gof  to 
consider,  to  a  great  extent,  in  my  opinion,  the  people  in  the  eastern  part  of  Virginia. 
It  will  not  do  for  us  to  talk  here  as  though  we  were  in  a  different  State  from  those 
people.  Our  interests  and  their  interests  are  combined.  I  cannot  see,  for  my  life, 
how  it  can  hurt  anybody  in  our  portion  of  the  State,  where  we  have  no  idea  that  any 
such  additional  tax  will  ever  be  imposed,  because  we  do  not  need  it  there,  to  let  those 
people,  if  they  choose  to  do  it,  impose  this  additional  tax  upon  themselves  for  the 
purpose  of  raising  a  larger  revenue  from  the  benefit  of  these  schools  or  for  the  pur- 
pose of  restricting  these  people  in  their  right  to  control  elections. 

I  think  the  suffrage  question  does  cut  a  figure  in  it;  but  I  think  we  ought  not  to 
let  that  suffrage  question  cut  too  much  figure.  The  main  question  is  one,  of  education 
the  gentleman  from  Dinwiddle  suggests.  The  only  argument  I  have  heard  made 
against  this  proposition  is  that  it  will  agitate  the  people,  that  we  will  have  issues 
raised  before  the  people,  and  that  the  men  who  are  running  for  the  Legislature  will 
be  met  with  the  question:  Are  you  in  favor  of  voting  for  this  law  or  not?  There  has 
been  a  great  deal  of  argument  on  this  floor  along  that  line  that  we  ought  not  to  have 
issues  raised  before  the  people  of  Virginia,  and  that  we  ought  to  allow  these  slick 
politicians  to  slip  into  the  Legislature  without  any  issues  being  raised.  I  respect- 
fully submit  that  is  exactly  what  the  people  of  Virginia  need.  When  a  man  goes  to 
the  Legislature  the  people  ought  to  know  how  he  is  going  to  vote  on  economical  ques- 
tions as  well  as  on  political  questions.  Heretofore  we  have  been  compelled  by  our 
circumstances  to  send  men  here  for  political  reasons,  when  everybody  knows  that 
nine-tenths  of  the  questions  that  come  up  before  the  Legislature  are  economic  ques- 
tions, on  which  men  are  bound  to  differ.  I  cannot  see  any  harm  In  this  provision. 
The  county  of  Rockingham  cannot  be  injured  by  this  provision,  because  as  the  gentle- 
man from  Richmond  has  pointed  out,  it  requires  two  bodies  to  impose  a  tax  of  this 
kind.    You  have  got  to  get  a  majority  of  the  Legislature  to  adopt  such  a  law  in  the 


2870 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


first  place,  and  then  the  law  has  no  operation  whatsoever  unless  the  board  of  super- 
visors of  the  particular  county  choose  to  impose  this  additional  capitation  tax.  How 
can  it  hurt  the  people  of  Rockingham  or  the  people  of  my  county,  or  the  people  of 
the  county  of  the  gentleman  from 'Russell  to  have  that  question  raised  before  them? 
I  cannot  see.    There  is  too  much  talk  here  about  our  trying  to  keep  everything  av/ay 
from  the  people  that  we  must,  in  this  Convention  settle  every  question  for  all  time 
and  never  allow  the  people  of  Virginia  to  have  questions  of  a  practical  nature  raised 
and  discussed  before  them.    I  respectfully  submit  that  what  our  people  ought  to  have, 
and  v/hat  they  have  needed  ever  since  the  war,  and  what,  if  it  had  not  been  for  the 
curse  of  universal  suffrage,  they  would  have  been  able  to  have,  is  to  divide  like  tEe 
white  people  in  other  States  on  economical  questions,  and  questions  of  taxation,  and 
those  questions  v/hich  involve  the  interests  of  our  people.    This  is  a  local  matter. 
These  people  in  the  eastern  part  of  Virginia  appeal  to  us  for  relief.    They  say  they 
are  having  a  burden  put  upon  them  which  is  too  heavy  for  them  to  bear,  that  they 
are  being  compelled  to  educate  a  race  which  is  getting  no  benefit  from  the  education 
they  give  them.    If  these  people  are  vv^illing  to  put  an  additional  burden  on  themselves 
for  the  purpose  of  accomplishing  that  object,  I  cannot  see,  for  my  life,  why  we  should 
prevent  them  from  doing  it.    1  have  heard  it  suggested  here  that  this  thing  ought  not 
to  be  done  because  it  is  only  an  attempt  to  get  a  certain  suffrage  clause  into  this 
Constitution.    I,  for  one,  vvant  to  state  here  that  I  did  not  come  here  with  any  suf- 
frage clause  in  my  pocket.    I  have  got  none  now,    i  did  not,  from  my  standpoint, 
consider  that  suffrage  was  the  most  important  question  to  come  before  this  Conven- 
tion.  It  seems  to  me  that  is  simply  an  argument  in  the  air.    This  cannot  affect  the 
suffrage  question.    The  gentlemen  who  advocate  the  majority  plan  that  has  been  in- 
troduced here,  v/ith  the  permanent  understanding  clause,  make  no  suggestion  that  a 
capitation  tax  will  be  effective  in  this  matter.    They,  themselves,  say  that  it  does  not 
cut  any  figure  in  the  plan,  and  that  it  has  just  gone  in  as  a  sort  of  make  v/eight.  If 
that  be  true,  I  cannot  see  how  they  can  claim  that  an  increase  of  this  capitation  tax 
is  going  to  have  any  effect  on  that  question.    It  v/ould  not  affect  my  vote  one  iota. 
I  do  not  think  it  will  affect  a  single  member  in  this  Convention  on  the  suffrage  ques- 
tion, for  us  to  let  the  people  in  the  various  counties  of  this  State  impose  local  taxes 
upon  themselves,  which  will  enable  them  to  carry  on  their  public  free  schools  at  their 
own  expense,  if  they  see  proper  to  do  so. 

I,  for  one,  hope  this  Convention  v/ill  vote  for  the  amendment  offered  by  the  gen- 
tleman from  Dinwiddle. 

Mr.  R.  L.  Gordon:  As  one  of  the  representatives  of  that  section  of  the  State  that 
is  cursed  by  this  unfortunate  vote,  I  desire  to  say  only  one  word  in  upposition  to  this 
proposition,  which  I  am  very  much  surprised  to  see,  comes  from  that  section  of  the 
country.  I  am  one  of  those  who  do  not  believe  that  we  can  separate  this  question  of 
of  capitation  tax  from  the  suffrage  question.  In  every  plan  that  has  T3een  advocated 
here  the  payment  of  this  capitation  tax  is  made  a  prerequisite  to  the  right  to  vote. 
That  tax  must  be  either  a  revenue  or  a  disfranchiser.  If  it  operates  as  a  disfranchiser 
it  cannot  operate  as  a  revenue  producer.    The  two  things  are  absolutely  inconsistent. 

Mr.  Hamilton:    I  do  not  understand  that  this  optional  tax  v/hich  the  gentleman 
from  Dinwiddle  proposes,  has  anything  to  do  with  the  suffrage  questionT* 

Mr.  R.  L.  Gordon:  Not  necessarily;  but  actually  it  has;  because  there  in  r_ot  a 
gentleman  within  the  sound  of  my  voice  who  does  not  believe  that,  in  any  permanent 
scheme  of  suffrage  which  this  body  may  adiopt,  the  prepayment  of  the  capitation  tax 
will  be  a  prerequisite  to  the  right  to  vote.  One  of  the  objects  of  the  suffrage  plan 
proposed  by  the  gentleman  from  Russell  (Mr.  Stuart)  is  to  give  the  localities  the 
power  to  levy  this  additional  tax  for  suffrage  purposes.  I  am  one  of  those  who  do 
not  believe  in  the  efiicacy  of  the  capitation  tax,  of  itself.  I  firmly  believe  that  the 
proposed  capitation  tax  in  this  State,  so  far  as  the  suffrage  is  concerned,  will  dis- 
qualify as  many  white  people  as  it  will  colored  people,  and  in  some  sections  of  the 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXIIOX  OE  VIEGIXIA.  28 Tl 


State  it  will,  in  my  judgment,  disqualify  more.  I  am  perfectly  satisfied  that  no  capi- 
tation tax  we  may  impose  'will  disqualify  the  colored  men  in  my  section  of  the  coun- 
try, or  any  considerable  number  of  them. 

I  am  in  favor,  Mr.  Chairman,  of  the  capitatioa  tax.  an-d  1  do  not  hesitate  to  say 
so,  because  I  believe  it  will  disqualify*  some  white  men  in  Virginia  who  ought  to 
be  disqualified.  But,  sir,  as  a  proposition  to  strike  at  the  race  that  we  are  seeking 
to  disqualify  the  race  that  ought  to  be  disqualified,  I  do  not  believe  that  it  will  ope- 
rate._  My  main  objection  to  the  proposition  is  that  we  have  been  laboring  in  this  body 
to  reduce  the  taxes  in  this  State,  to  reduce  the  expenses  of  the  State  and  give  it  a 
more  economical  government.  I  am  opposed  to  a  proposition  to  levy  upon  the  poor- 
est, the  weakest  part  of  the  people  of  the  State  an  additional  tax  at  the  same  time  you 
are  taking  the  taxes  off  of  property.  What  is  a  head  tax  but  property  tax?  It  is 
a  tax  upon  the  man  who  has  no  property,  but  it  takes  property  to  pay  it.  I  do  not 
believe,  sir,  that  it  is  wise  to  leave  this  question  to  be  agitated  before  the  General 
Assembly  of  Virginia.  The  gentleman  from  Roanoke  says  that  these  great  questions 
ought  to  be  agitated,  and  that  such  agitation  would  prevent  slick  politicians  from 
getting  into  office.  Then,  why  do  we  fix  the  limitation  of  the  suffrage  provision  in 
our  Constitution?  VvTiy  have  any  provision  about  it  at  all?  VTiy  not  let  the  Legisla- 
ture determine  the  question  of  suffrage  and  relieve  this  body  from  the  consideration 
of  that  onerous  question?  V^Tiy,  sir,  it  is  because  we  know  that  in  every  community 
in  this  State  that  question  would  be  continuously  agitated,  and  there  would  not  be  an 
election  of  a  Legislature  in  the  State  of  Virginia  where  this  question  as  to  an  increase 
of  the  capitation  tax,  indirectly  affecting  the  right  of  suffrage,  would  not  be  raised  in 
every  county  of  the  State. 

If  there  is  one  great  question  that  ought  to  be  settled  by  a  constitutional  limita- 
tion, it  is  the  right  to  vote.  It  ought  not  to  be  left  to  the  continual  uncertainty  and 
continual  agitation  of  politics,  vrhere  every  demagogue  in  the  community  would  be 
seeking  to  arouse  one  class  against  the  other,  and  in  every  way  possible  seeking  to 
break  up  the  peace  of  and  stir  up  strife  in  the  community.  If  there  is  one  question 
that  ought  to  be  settled  by  our  Constitution  it  is  the  amount  of  this  capitation  tax, 
and  it  ought  to  be  settled  for  every  county  in  this  State.  The  Constitution  which  we 
are  now  seeking  to  amend  fixed  that  tax  at  SI. 50,  and  your  able  and  learned  commit- 
tee have  determined  that  $1.50  is  a  proper  capitation  tax.  I  say  if  it  is  proper  for 
one  county  in  the  State,  it  is  proper  for  all  the  counties  in  the  State.  To  the  gentle- 
men of  the  white  section  of  this  State  who  talk  about  the  Black  Belt,  and  say  the^^ 
want  to  leave  us  out  of  the  suffrage  question  by  tendering  us  the  right  to  levy  an 
additional  capitation  tax,  which  must  be  levied  on  the  white  man  and"  colored  man 
alike.  I  say  I  cannot  thank  them  for  that  sort  of  medicine,  for,  in  my  humble  judg- 
ment, it  will  do  no  good.  but.  on  the  contrary,  will  keep  us  in  a  continual  state  of  agi- 
tation, which  will  destroy  the  peace  and  happiness  of  our  community. 

Mr.  Keezell:  Would  not  the  effect  of  it  be  that  you  would  not  get  it  from  a  man 
who  did  not  pay  SI. 50,'  and  that  you  would  put  an  additional  burden  on  the  poor  man 
who  does  now  pay  his  tax? 

Mr.  R.  L.  Gordon:  Exactly;  you  increase  the  burden  of  the  man  who  now  pays, 
and  you  do  not  get  an  additional  cent  from  the  man  who  does  not  pay. 

Mr.  Stuart:  If  you  did  not  get  a  cent  from  the  man  who  did  not  pay.  I  want  to 
know  whether  or  not  you  would  lose  his  vote. 

Mr.  R.  L.  Gordon:  Certainly  you  do;  but  I  contended  that  if  SI. 50  does  not  keep 
a  man  from  voting.  S2.50  will  not  keep  him  from  voting.  The  man  that  will  pay  $1.50 
for  the  privilege  of  exercising  the  right  of  suffrage  is  going  to  pay  whatever  tax  is 
necessary  in  order  to  permit  him  to  exercise  that  right.  But  it  will  increase  the 
burden  on  the  good  men  that  are  now  bearing  more  than  their  just  share  of  the  bur- 
den of  taxation  in  this  State.  It  will  increase  the  burden  upon  the  weakest  men  in 
your  State.  That  is  the  difficulty  about  it.  You  are  decreasing  the  tax  on  property 
and  increasing  the  tax  on  poverty. 


2872  DEBATES  OF  THE  CONSTITUTIOA^AL  CONVENTION  OF  VIRGINIA. 

Mr.  Barbour:  I  will  state  that  in  the  town  where  I  live  now  we  levy  a  poll  tax 
every  year  that  everybody  knows  is  unconstitutional,  and  still  there  is  no  objection 
to  it. 

Mr.  R.  L.  Gordon:  I  am  glad  to  hear  the  gentleman  arise  in  this  Convention  and 
say  that  he  represents  a  constituency  that  pays  taxes  voluntarily.  I  did  not  know 
there  was  such  a  county  in  the  State;  and  I  congratulate  Culpeper. 

I  want  to  say,  Mr.  President,  that  I  read  an  article  in  one  of  the  Atlanta  papers 
the  other  day,  in  which  that  paper  vv^as  appealing  to  the  white  men  of  the  State  to 
come  up  and  pay  their  capitation  tax.  It  was  cited  as  an  historic  fact  that  the  young 
men  around  the  cities  would  spend  dollar  after  dollar  in  all  sorts  of  folly  when  they 
would  not  go  up  and  pay  the  assessor  $1.50  capitation  tax,  and  if  they  did  not  pay  it 
In  a  very  short  time  they  would  be  deprived  of  the  right  to  vote.  That  is  the  actual 
condition  of  things  where  it  is  working.  I  want  to  say  to  the  gentlemen  of  this  body 
that  when  they  undertake  to  put  an  additional  capitation  tax  on  the  people  of  Vir- 
ginia and  then  provide  that  it  shall  be  a  prerequisite  to  voting,  instead  of  disfran- 
chising the  African,  they  are  disfranchising  the  Anglo-Saxon. 

Mr.  Mcllwaine:  Mr.  President,  I  do  not  want  to  make  any  protracted  remarks 
In  regard  to  this  matter.  I  desire  to  say,  as  a  representative  of  the  Black  Belt,  that 
it  seems  to  me  there  is  very  great  merit  in  the  amendment  offered  by  the  gentleman 
from  Dinwiddle.  It  has  been  discussed,  it  seems  to  me,  too  much  from  the  point 
of  suffrage,  and  has  not  been  sufficiently  considered  from  the  point  of  view  stated  by 
the  gentleman  from  Dinwiddle  (Mr.  Epes)  when  he  offered  it,  namely,  with  reference 
to  education  in  the  counties.  There  is  a  great  need  of  an  amount,  in  addition  to 
what  we  have  at  our  command  in  our  counties,  for  school  purposes,  and  if  it  can  be 
gotten  with  the  consent  of  the  people,  it  seems  to  me  that  no  movement  could  be 
carried  through  that  would  be  more  fraught  with  good.  I  do  hope  that  the  members  of 
the  Convention  will  vote  for  and  adopt  this  amendment.  No  county  is  bound  to  levy  the 
additional  tax  unless  it  wants  to.  If  it  wants  it,  it  ought  to  have  the  privilege  of 
obtaining  it. 

Mr.  Garnett:  I  want  to  say  that  I  heartily  endorse  what  has  been  said  by  the 
gentlemen  from  Prince  Edward  in  support  of  this  proposition.  The  main  feature  of 
it  is  to  give  the  people  a  fund  for  education  in  the  public  schools.  I  am  not  like  my 
friends  from  Rockingham  and  Louisa.  I  want  this  question  agitated  in  my  county. 
We  are  looking  forward  to  a  time  when  we  will  have  more  than  four  months  in  school 
in  the  year  for  our  children.  I  want  it  agitated  so  that  when  we  do  send  a  member 
to  the  Legislature  he  will  come  here  directed  by  the  people  to  give  us  the  privilege 
of  adopting  this  additional  head  tax  in  order  that  we  may  have  school  carried  on  for 
a  longer  term. 

I  want  to  say  that  I  would  oppose  any  additional  capitation  tax  as  a  prerequisite 
to  the  right  to  vote.  I  understood  the  purpose  of  it  to  be  to  help  the  free  schools  in 
the  various  communities  and  that  it  was  not  to  be  a  prerequisite  to  the  right  to  vote. 

Mr.  Hamilton:  Mr.  President  and  gentlemen,  I  want  to  say  that  I  think  this  is  a  meri- 
torious amendment.  I  think  there  has  been  a  misapprehension  on  the  part  of  some  gentle- 
men as  to  its  object  or  purpose.  It  is  well  known  that  I  do  not  favor  the  suffrage 
plan  of  the  gentleman  from  Russell  (Mr.  Stuart)  because  I  signed  the  majority  report 
of  the  Suffrage  Committee,  and  yet  I  think  this  is  a  proper  amendment.  It  has  noth- 
ing to  do  with  suffrage,  and  it  is  not  intended  ever  to  have  anything  to  do  with  suf- 
frage, unless  this  body  adopts  the  suffrage  plan  of  the  gentleman  from  Russell  which 
I  think  is  improbable.  It  has  no  bearing  upon  the  question.  The  whoie  of  it  is  simply 
this:  If  the  member  of  the  Legislature  from  any  county  or  city  secures  permission 
from  the  Legislature  for  the  local  tax  body  of  that  county  to  put  this  tax  on  for  school 
or  other  purposes,  the  local  tax  body  may  impose  the  additional  tax.  Then  if  the 
people  want  it,  they  may  be  permitted  to  elect  their  councils  or  their  supervisors  to 
do  it,  and  the  object  of  that  is  exactly  that  stated  by  the  member  from  Dinwiddle  (Mr. 


DEBATES  OE  THE  COXSIITUHOXAL  COXTEXIIOX  OE  VIEGIXIA. 


Epes)  and  none  other.  Ii  is  to  enable  the  voters  and  no  one  else  to 
levy  an  additional  capitation  tax,  v;-hich  will  have  nothing  to  do  with  suf- 
frage, which  will  have  no  bearing  upon  suffrage,  to  be  applied  either  to 
school  purposes  or  other  proper  local  purposes,  and  it  cannot  be  done  unless  the 
voters  in  each  county  or  city  which  chooses  to  adopt  it  practically  approve  it  at  two 
elections,  one  when  they  elect  their  supervisors  or  members  of  the  city  council.  It  is 
really  local  self-government  in  the  highest  degree,  and  the  object  of  it  is  to  make 
that  great  class  of  people  who  now  constitute  a  burden  upon  these  localities  contribute 
something  in  a  very  small  way  to  the  bearing  of  those  burdens.  Nothing  is  put  upon 
anybody.  It  has  no  bearing  upon  the  question  of  whether  the  taxes  collected  in  Rock- 
ingham are  not  evenly  distributed  there.  It  does  not  make  any  portion  of  the  poll  tax 
that  is  collected  in  Rockingham  go  to  Dinwiddle.  It  has  no  bearing  on  the  State  capi- 
tation fund.  It  is  purely  a  local  tax,  and  it  is  practically  saying,  -'VTe  will  permit 
these  localities,  if  fhey  choose,  to  have  a  dollar  capitation  tax  for  their  local  purposes, 
provided  their  people  want  it,  and  not  otherwise.  1  think  this  is  one  of  the  most 
meritorious  amendments  that  has  been  offered,  and  I  hope  that  gentlemen  who  cannot 
be  hurt  by  it  will  allow  those  parts  of  the  State  which  need  it  very  much  to  have  it. 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  the  amendment  pro- 
posed by  the  gentleman  from  Dinwiddie  (Mr.  Epesj. 

Mr.  Garnett:  On  this  question  I  am  paired  with  the  gentleman  from  Augusta 
(:\Ir.  Quarles).    If  he  were  present  he  would  vote  nay  and  I  should  rote  yea. 

The  question  having  been  taken  the  result  was  announced — Ayes,  44;  noes,  27, 
as  follows: 

Ayes:  Messrs.  Allen,  Ayers,  Barbour,  Manly  H.  Barnes.  Thomas  H.  Barnes, 
Bouldin,  Brooke,  Brown,  Cameron,  Chapman,  Epes,  Fairfax,  James  W.  Gordon,  Gregory, 
Hamilton,  Hardy,  Ingram,  Ciaggett  B.  Jones,  G,  W.  Jones.  Kendall,  Mcllwaine,  Meredith, 
Miller,  Moncure,  R.  Walton  Moore,  O'Flaherty,  Parks.  Pollard,  Portlock,  Rives,  Robert- 
son, Stebbins,  Stuart,  Tarry.  Thornton.  Turnbull,  Walker,  Wescott,  Willis,  Wise,  with- 
ers, Woodhouse,  Wysor  and  the  President — 44. 

Xoes:  Messrs.  George  K.  Anderson,  Barham,  Blair,  Bolen,  Carter,  Crismond,  Daves, 
Earman,  Fletcher.  Gilmore.  R.  L.  Gordon,  Gwyn,  Harrison.  Hooker,  Keezell,  Lincoln, 
Lindsay,  Lovell.  Marshall,  Mundy,  Pedigo,  Phillips,  Richmond,  Summers,  Thom,  Waddill, 
and  Yancey — 27. 

:\Ir.  James  W.  Gordon:  I  wish  to  offer  this  amendment,  ]\Ir,  President,  I  know 
well  when  I  have  gotten  enough  of  a  thing,  and  I  should  not  offer  this  amendment  now 
except  that  I  believe  the  members  of  the  Convention,  a  while  ago  in  voting  down  the 
amendment  I  offered  to  this  section,  did  not  really  get  the  gist  of  the  matter.  There- 
fore I  beg  leave  to  off>r  this  and  to  explain  in  a  few  words  what  its  eft'ect  is. 

The  Secretary  read  as  follows: 

Amend  Section  6  in  line  14  by  striking  out  the  words  "  levy  or  distress  "  and  sub- 
stitute therefor  the  words  levy,  distress  or  garnishment "  and  by  adding  to  the  sec- 
tion the  words  "  or  the  laboring  man's  exemption," 

I\Ir.  President,  I  hope  I  may  have  the  attention  of  those  members  of  the  Conven- 
tion who  believe  that  poll  tax  should  be  imposed  in  order  to  deter  people  from  voting. 
A  while  ago.  by  an  overwhelming  majority,  the  members  of  the  Convention  decided 
that  they  did  wish  to  impose  a  poll  tax  in  order  to  deter  certain  classes  of  the  com- 
munity from  voting. 

If  you  will  turn  to  the  Code  of  Virginia  you  will  find  that  the  chattel  property  which 
is  exempted  under  the  poor  debtor's  law  is  set  out  in  Sections  3650  and  3651.  In  these 
sections  the  language  levy  or  distress  "  is  used,  the  very  language  which  the  Com- 
mittee on  Taxation  and  Finance  have  used  here  in  regard  to  the  poll  tax.    When  you 

go  to  Section  3652  you  find  this  language:    "  There  shall  also  be  exempt  from  levy, 
distress  or  garnishment "  the  wages  of  the  laboring  man  not  exceeding  S50.    If  we 
ISl — Lonsi,  Deb. 


2874  DEBATES  OF  THE  CON-STITUTIONAL  CONVENTION  OF  VIRGINIA. 

adopt  this  language  here  limiting  it  to  levy  or  distress,  as  reported  by  the  committee, 
it  can  be  very  forcibly  argued  that  we  did  not  intend  that  it  should  apply  to  the  wages 
of  the  laboring  man,  which  are  mentioned  in  Section  3652,  because  we  have  not  used 
the  words  "  garnishment "  and  have  not  referred  to  it. 

As  a  matter  of  fact,  when  we  speak  of  the  poor  debtor's  exemption,  we  refer  to 
the  chattel  property  which  is  exempted  under  Sections  3650  and  3651.  If  I  am  correct 
about  that,  then  it  would  be  impossible,  even  in  the  face  of  the  overwhelmingly  expressed 
opinion  of  the  Convention  as  to  the  purpose  of  poll  tax,  to  have  the  poll  tax  collected 
in  large  numbers  by  the  process  of  garnishment  and  thereby  defeat  the  avowed  purpose 
of  the  Convention. 

If  it  is  proper  that  this  poll  tax  should  not  be  enforced  out  of  the  poor  debtor's 
exemption,  the  very  same  reason  applies  in  regard  to  the  laboring  man's  exemption 
of  $50.  There  are  hundreds  of  thousands  of  $50.  There  are  hundreds  of  thousands  of 
laboring  men  from  v*^hom  this  poll  tax  could  be  collected  by  garnishment  who  would 
hardly  have  sufficient  property  under  the  poor  debtors  exemption  to  make  it.  My 
friend  from  Northampton  (Mr.  Kendall)  told  me  there  were  hundreds  of  poll  taxes 
collected  from  the  negroes  in  his  county  by  a  process  of  garnishment  just  in  this  way. 

If  the  Convention  wants  to  collect  a  poll  tax  as  a  prerequisite  to  voting  and  wishes 
to  say  that  that  poll  tax  should  not  be  enforced  by  legal  process,  so  as  to  keep  the 
negroes  away  from  the  polls,  then  certainly  v/e  ought  also  to  include  in  this  language 
the  laboring  man's  exemption  of  $50,  so  that  the  officer  will  not  be  able  to  turn  away 
from  the  man's  door  and  away  from  his  chattel  property  and  go  right  down  to  his 
employer  and  collect  a  dollar. 

I  trust,  for  these  reasons,  this  language  will  be  adopted. 

The  presiding  ofiicer:  The  question  is  on  the  amendment  of  the  gentleman  from 
Richmond  (Mr.  Gordon). 

The  amendment  was  rejected. 

The  Presiding  Officer:  The  question  now  is  on  the  ^adoption  of  Section  6  as 
amended. 

Mr.  Parks:    I  offer  the  following  amendment: 

After  the  word  "but'^  in  line  12  strike  out  all  the  baiance  of  the  section  down  to 
and  including  the  word  "law"  in  line  15,  and  insert  in  lieu  thereof  the  following:  "But 
the  General  Assembly  may  provide  by  general  law  for  exemption  from  the  payment  of 
such  tax  all  persons  who  because  of  physical  disability  or  indigency,  are  unable  to  pay 
such  tax." 

I  will  state  that  that  does  not  affect  the  amendment  of  the  gentleman  from  Din- 
widdle (Mr.  Epes).  The  amendment  which  he  offered  and  v/hich  was  adopted  would 
follow  the  amendment  I  offer. 

Nov\^,  Mr.  President,  I  ask  the  attention  of  the  committee  for  a  fe^\^  minutes.  It  is 
with  a  great  deal  of  hesitancy  that  I  oppose  the  report  of  this  committee.  Gentlemen 
of  the  Convention  will  bear  me  out  in  the  statement  that  it  is  very  seldom  that"  I  have 
risen  to  oppose  the  report  of  any  committee,  and  I  have  only  done  so  where  I  believed 
it  is  my  duty  in  the  interest  of  the  people  of  the  State  to  do  it.  When  a  matter  is 
referred  to  a  committee  composed  of  gentlemen  of  intelligence  and  acknowledged  ability, 
for  whose  ability,  intelligence,  honesty  and  patriotism  I  have  the  very  highest  regard, 
and  when  they  give  that  matter,  month  after  month,  their  careful,  calm,  deliberate 
consideration,  I  feel  almost  persuaded  at  all  times  to  fall  in  v\^ith  them,  believing  that 
they  have  marked  out  the  proper  course  for  the  Convention  to  pursue. 

But,  Mr.  President,  I  cannot  agree  to  the  provision  in  this  report  which  provides 
that  the  capitation  tax  shall  not  be  a  lien  upon  property  that  is  exempt  under  the  poor 
debtors'  law,  not  because  I  would  have  the  capitation  tax  levied  out  of  the  property 
exempt  under  the  poor  debtors'  law  at  all,  but,  like  the  gentleman  from  Frederick  (Mr. 
Harrison)  I  come  from  a  section  of  the  State  that,  so  far  as  this  Constitutional  Con- 
vention is  concerned,  was  influenced  very  little  by  the  question  of  suffrage.    We  are 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIEGIXIA. 


2875 


very  apt  to  be  influenced  to  a  very  large  extent  by  our  environment,  and  to  look  at  the 
condition  of  our  neighbors  and  their  environment,  and  feel  that  because  we  are  safe  we 
will  protect  ourselves  and  let  others  do  the  same.  I  do  not  feel  that  way;  but  the  question 
before  my  people  v/as  not  the  question  of  suffrage.  It  was  the  question  of  an  economical 
administration  of  the  government  and  a  distribution  of  the  burdens  of  government  so 
that  each  man  would  bear  his  part. 

We  say  in  this  provision  that  a  dollar  and  a  half  capitation  tax  shall  go  to  the 
education  of  the  people,  and  yet  by  the  latter  part  of  the  section  it  seems  to  me  we  are 
educating  in  the  wrong  wa3^,  I  believe,  Mr.  President,  that  when  I  accept  the  benefits  of 
government,  it  is  my  duty  to  bear  the  burdens  and  the  responsibilities  of  government. 
I  know  it  is  said  and  will  be  said,  as  was  stated  when  we  had  the  capitation  tax  as  a 
prerequisite  to  voting  before,  that  if  this  country  gets  in  trouble  you  do  not  go  to  a  man 
and  ask  whether  he  has  paid  his  capitation  tax  and,  if  he  has  not,  re- 
fuse to  call  upon  him  for  military.  That  is  a  false  idea.  It  is  a  man's 
duty  to  shoulder  arms  and  protect  the  government  that  protects  him, 
whether  he  pays  a  capitation  tax  or  not;  but  I  repeat  we  are  educating  the  wrong  way, 
and  this  matter  will  go  a  great  deal  farther,  in  my  judgment,  than  we  now  imagine.  We 
exempt  pensioners.  I  do  not  like  that.  I  do  not  like  it  for  the  reason  that  you  exempt 
from  the  payment  of  this  tax  persons  who  are  now  pensioned  by  the  State  for  military 
service.  In  my  county  you  will  find  thirty-odd  pensioners,  and  in  another  county  in 
the  State,  with  no  m.ore  population  than  my  county,  you  will  find  three  hundred  and 
fiftj'-seven  pensioners.  In  that  county  three  hundred  and  fifty-seven  men  are  exempt 
from  the  payment  of  the  capitation  tax,  because  they  receive  a  pension  for  military 
service,  while  in  my  county,  with  an  equal  population,  there  are  only  thirty-odd  ex- 
empted. But  I  am  willing  to  pass  that  by,  knowing  that  all  those  pensioners,  like 
myself  and  like  all  other  Confederate  soldiers,  will  soon  pass  over  the  river  to  answer 
roll  call  on  the  other  shore,  and  in  that  short  time  I  am  willing  to  let  that  go  by, 
although  I  do  not  like  it  but  when  you  come  to  say  that  a  man  shall  be  exempt  from 
the  payment  of  this  capitation  tax  and  that  the  capitation  tax  shall  not  be  demanded 
by  legal  process  out  of  the  poor  debtors'  lav,%  what  do  you  exempt? 

Mark  3'ou,  in  my  judgment — I  may  be  wrong,  but  I  am  honest  in  it — this  $50  a 
month  to  the  labiring  man  is  a  part  of  the  poor  debtors'  exemption,  and  yet  you  cannot 
take  that.  Here  is  a  man  working  and  getting  SoO  a  month,  $600  a  year,  and  yet  you 
exempt  him  from  the  payment  of  a  capitation  tax.  Is  it  right?  Is  it  just?  How  far 
will  it  affect  the  revenues  of  the  State,  :'n  the  first  place,  and  in  the  next  place,  how  far 
will  it  affect  the  proper  standing  of  the  citizens  of  the  State,  when  you  teach  them 
that  they  shall  be  exempted  from  the  discharge  of  their  duty  as  citizens  to  the  govern- 
ment that  protects  them  in  the  enjoyment  of  life,  liberty  and  property? 

Not  only  that,  but  here  is  a  man  who  is  exempt  because  of  the  poor  debtor's  law. 
He  does  not  want  to  pay  his  tax,  and  you  cannot  make  it.  Around  him  are  others,  one 
or  more  citizens  in  the  same  condition,  so  far  as  property  is  concerned.  You  cannot 
make  the  tax.  Yet  heretofore  they  have  felt  the  obligations  of  government  bearing 
upon  them,  and  they  have  come  forward  as  good  citizens  and  paid  their  capitation  tax; 
but  when  they  look  around  and  see  that  their  neighbor,  having  as  much  tangible 
property  as  they  have  and  in  addition  to  that  in  some  instances  making  largely  more 
money  than  they  are  making  by  their  labor,  because  of  his  physical  ability  to  do  so, 
is  not  paying  his  tax,  what  will  be  the  effect  on  them?  Seeing  that  their  neighbor  enjoys 
this  immunity  from  the  discharge  of  the  obligations  of  good  government  they  will  say 
"  He  is  better  off  than  I  am.;  he  is  better  able  to  pay  than  I  am.  Though  I  have  here- 
tofore paid  because  of  the  obligations  resting  upon  me,  I  will  disregard  those  obliga- 
tions, and  I  will  not  pay  either." 

In  addition  to  the  fact  that  it  is  educating  the  people  the  wrong  way,  instilling 
into  them  improper  principles,  how  far  will  it  go  towards  destroying,  reducing  and  cut- 
ting down  the  revenue  of  the  State,  and  where  is  it  to  stop? 


2876 


DEBATES  OF  THE  CON"STITUTION"AL  CONVENTION"  OF  VIRGINIA. 


Mr.  President,  I  propose  to  relegate  this  matter  to  the  General  Assembly  and  let 
the  General  Assembly  provide  by  general  law  that  where  a  man  is  physically  unable 
to  earn  the  money  with  which  to  pay,  where  his  circumstances  are  so  indigent  that 
he  cannot  pay,  the  Legislature  may  provide  by  general  law  for  the  exemption  of  all 
such  persons.  I  ask  you,  in  the  name  of  Heaven,  in  the  name  of  justice  and  right  an^ 
common  sense,  in  the  name  of  patriotism  and  good  citizenship,  ought  there  be  any 
further  exemption  than  this? 

When  you  come  to  the  question  of  suffrage  and  consider  that,  I  am  willing  to  meet 
you  there.  I  am  willing  to  go  just  as  far  as  it  is  possible  for  me  to  go  to  lift  the  bur- 
den from  the  people  who  live  in  the  Black  Belt.  You  all  know  what  my  opinion  is  on 
that  question,  and  what  my  opinion  is  as  to  the  race  that  is  inflicted  upon  them. 

I  hope  the  Convention  will  adopt  this  amendment. 

The  amendment  was  rejected. 

Mr.  Wescott:    Mr.  President,  I  wish  to  offer  an  amendment  to  Section  6  as  follows: 

In  line  7,  before  the  word  "in"  insert  the  following  words:  "Within  counties  and 
cities  whence  derived,"  and  after  the  word  "  population  "  and  before  the  word  "  and  " 
in  the  same  line  insert  the  words  "  of  the  respective  school  districts  therein,''  so  that 
"the  section  when  amended  would  read:  "One  dollar  of  which  shall  be  applied  exclu- 
sively in  aid  of  the  public  free  schools  within  the  counties  and  cities  whence  derived, 
in  proportion  to  the  school  population  of  the  respective  school  districts  therein  " 

I  wish  to  say  before  discussing  this  matter — which  I  shall  do  in  the  most  abbre- 
viated manner,  resting  with  merely  pointing  out  the  inherent  justice  involved  in  the 
proposed  amendment — that  I  have  submitted  it  to  the  chairman  and  to  every  member 
of  the  Finance  Committee  who  is  present  upon  the  floor,  and  while  one  or  two  of  the 
gentlemen  have  said  that  something  might  be  suggested  in  argument  which  would  con- 
stitute an  objection  to  the  amendment,  but  insofar  as  they  were  then  able  to  consider 
it,  it  had  their  unqualified  approval.  Further  than  that,  I  have  suggested  it  to  the 
chairman  of  the  Committee  on  Education,  and  I  believe  I  am  authorized  to  state  that 
insofar  as  he  has  been  able  to  give  it  consideration,  such  consideration  being  neces- 
sarily cursory  only,  it  has  his  approval,  with  the  reservation  that  there  is  some  con- 
flict between  this  provision  and  a  provision  bearing  upon  this  subject  heretofore  adopted 
by  both  the  Committee  of  the  Whole  and  the  Convention.  That  conflict,  I  wish  to  say, 
however,  as  suggested  to  the  chairman  of  the  committee,  is  one  that  can  be  easily 
adjusted  and  reconciled  by  the  Committee  on  Revision,  and  constitutes,  I  think,  no 
serious  objection,  certainly  no  barrier,  to  the  favorable  action  of  the  Convention  upon 
the  proposed  amendment. 

Mr.  President  and  gentlemen,  I  do  not  wish  to  detain  you  for  any  length  of  time 
to  discuss  this  proposition.  The  unanimity  with  which  the  suggestion  has  found  favor 
in  the  minds  of  the  membership  of  the  committee  is  a  proof  conclusive,  as  it  appears 
to  me,  of  the  inherent  merit  of  the  proposition  itself.  Its  only  significance,  gentlemen, 
is  that:  It  provides  for  a  basis  of  distribution  of  this  capitation  tax  among  the  several 
sub-divisions  of  counties  and  cities  of  the  State  in  the  exact  proportion  in  which  those 
several  sub-divisions  have  contributed  to  the  payment  of  that  tax.  There  is  no  design 
to  break  in  on  the  recommendations  of  the  Committee  on  Education  of  the  policy  of 
the  attitude  of  the  State  towards  the  free  schools  as  a  general  question,  but  to  limit 
it  only  to  the  question  of  a  capitation  tax. 

In  conclusion,  I  submit  that  no  one  can  for  a  single  moment,  as  it  appears  to  me, 
undertake  to  controvert  the  inherent  justice  and  righteousness  of  the  provision  that 
every  local  sub-division  of  the  State  of  Virginia  shall  enjoy  the  proceeds  of  its  one  dollar 
capitation  tax  appropriated  to  the  public  schools  and  in  the  exact  proportion  to  the 
extent  to  which  they  contribute  to  it. 

I  submit  this  one  further  consideration,  gentlemen.  It  will  give  an  interest  in  the 
payment  of  this  poll  tax  in  certain  constituencies  of  the  State  which  it  might  be 
invidious  to  mention,  and  I  believe  will  have  a  beneficial  result  in  that  respect. 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTION  OF  VIKGINIA.  2877 

Mr.  R.  L.  Gordon:  Mr.  President,  I  wish  to  ask  the  proposer  of  the  amendment  a 
Question.  Would  not  the  effect  of  your  amendment,  within  a  county  having  99  per 
cent,  of  white  people,  we  will  say,  who  are  paying  taxes,  be  to  distribute  the  entire 
fund  in  that  county,  and  as  to  the  people  who  do  not  pay  taxes  in  the  more  unfortunate 
counties  of  the  State  where  the  negro  vote  predominates,  to  compel  them  to  bear  the 
education  of  the  white  and  the  colored  people  also? 

Mr.  Wescott:    I  think  the  amendment  is  susceptible  of  no  such  construction. 

Mr.  R.  L.  Gordon:  Mr.  President,  I  hope  the  amendment  will  not  be  adopted. 
The  effect  of  the  amendment,  unless  I  misapprehend  its  import,  is  that  the  capitation 
tax  collected  in  each  county  shall  be  distributed  in  that  county.  If  you  take  a  county 
that  is  so  unfortunate  as  to  have  three  or  four  thousand  negro  majority,  the  people  of 
that  county  will  have  to  bear  the  burden  that  the  white  people  of  the  State  are  now 
bearing  and  that  the  white  people  of  the  State  ought  to  bear,  because  the  counties  that 
are  afflicted  with  these  people  ought  not  to  be  more  afflicted  with  them  than  they  are 
now.  If  the  education  of  the  children  of  the  State  is  a  State  matter,  it  does  seem  to 
me  the  gentlemen  who  are  located  in  the  more  favored  sections  of  the  State  ought  not, 
by  such  an  amendment  as  this,  to  throw  the  whole  burden  of  negro  education  upon  that 
portion  of  our  community  that  is  already  afflicted  with  that  race.  It  must  have  that 
effect,  Mr.  President,  and  it  seems  to  me  it  is  unjust  and  unrighteous.  The  Black  Belt 
of  Virginia  is  now  bearing  a  tremendous  burden,  and  I  do  not  believe  that  even  the  gen- 
tlemen who  represent  the  white  sections  of  the  State  will  willingly  vote  to  increase  that 
burden. 

Mr.  Stuart:  Is  not  your  argument  based  upon  the  idea  that  the  white  man  will 
pay  the  capitation  tax  and  the  negro  will  not? 

Mr.  R.  L.  Gordon:    My  idea  is  based  on  that  to  a  large  extent,  Mr.  President. 

Mr.  Stuart:  I  understood  you  to  deny  that  proposition  this  morning  and  to  say 
that  you  thought  as  many  white  men  as  negroes  would  be  cut  out  by  the  capitation, 
tax. 

Mr.  R.  L.  Gordon:  I  did  make  that  statement,  that  as  many  white  men  as  negroes 
would  be  cut  out  by  the  non-payment  of  the  capitation  tax,  by  the  non-property  holders 
of  the  State.  I  believe  more  of  them  will  be,  but  the  gentleman  from  Russell  knows 
as  w^ell  as  I  do  that  the  property  holders  of  this  State  are  white  men,  as  a  rule,  and  that 
you  are  laying  an  additional  burden  upon  the  property-owners  of  the  Black  Belt  of  the 
State,  where  a  white  man's  property  is  already  depreciated  by  the  presence  of  the 
negro,  and  where  the  conditions  of  life  are  harder  on  account  of  his  presence.  You 
want  to  put  upon  him  the  entire  burden  of  educating  that  number  of  white  people, 
and  I  say  the  people  of  the  white  sections  ought  not  to  do  it. 

Mr.  Mcllwaine:  Mr.  President,  the  only  objection  I  can  see  to  the  amendment 
offered  by  the  gentleman  from  Accomac  (Mr.  Wescott)  is  that  it  seems  to  be  invading 
the  idea  of  the  State's  duty  to  carry  on  the  education  of  the  children  of  the  State. 
After  consulting  a  number  of  gentlemen  in  Eastern  Virginia  and  reflecting  on  the  fact 
that  the  amendment  is  offered  by  a  gentleman  from  this  part  of  the  State,  and  after 
having  been  told  by  a  number  of  gentlemen  that  poll  taxes  in  our  part  of  the  State  aro' 
paid  about  as  regularly  and  n  as  large  proportion  as  in  many  other  parts  of  the  State,, 
I  can  see  no  injustice  in  the  adoption  of  the  amendment  that  has  been  offered;  and  as 
I  began  to  say,  the  only  objection  I  can  see  is  that  it  seems  to  strike  out  the  State  sys- 
tem which  has  been  hinted  at  by  the  gentleman  from  Louisa  (Mr.  Gordon) ;  that  is  to- 
say  that  it  is  the  duty  of  all  parts  of  the  State  combined  together,  and  especially  for  the- 
stronger  parts  to  help  the  weaker  in  educating  all  the  children  of  the  State. 

Mr.  R.  L.  Gordon:  Does  not  the  gentleman  think'  it  would  be  wiser  to  have  the 
law  so  perfected  and  administered  as  to  prevent  this  condition  of  things  rather  than 
try  to  prevent  it  by  Constitutional  amendment? 

Mr.  Thornton:  I  think  one  of  the  reasons  why  there  is  this  large  amount  of 
delinquent  taxes,  is  due  to  the  fact  that  the  officers  in  the  delinquent  counties  fail 


2878  DEBATES  OP  THE  CO^s^STITUTIONAL  CONVENTIOivr  OE  VIRGII^IA. 

to  discharge  their  duty  for  the  reason  that  they  know  these  taxes  are  paid  into  a  general 
State  fund,  and  then  distributed  in  proportion  to  population,  thus  offering  no  induce- 
ment to  the  officers  to  collect,  or  the  people  to  pay,  as  the  amount  received  by  a  county 
does  not  depend  upon  the  amount  paid.  I  say  this  is  unjust  and  wrong,  and  exceed- 
ingly unfair  to  counties  like  mine  that  pays  its  taxes.  It  is  this  inequality  we  wish  to 
correct.  There  is  a  disposition  all  over  the  world,  when  it  comes  to  a  general  scuffle 
to  get  what  you  can,  and  the  laws  should  be  so  made,  as  to  dispense  with  this  necessity. 
Take  the  little  county  of  Northumberland,  that  has  a  large  colored  population,  and  yet 
you  will  find  there  are  only  126  delinquents  in  the  entire  county  and  yet  in  other  coun- 
ties close  by  (I  do  not  mind  naming  those  which  are  doing  well,  but  I  do  not  care  to 
mention  by  name  those  that  are  not  doing  well)  we  find  with  equally  as  many  colored 
people,  the  delinquents  run  into  the  hundreds  showing  conclusively  that  the  delinquents 
vary  in  the  Black  Belt  as  well  as  elsewhere,  and  hence  the  contention  of  the  gentle- 
man from  Louisa  (Mr.  Gordon)  is  not  correct.  When  you  come  to  the  cities,  you  Yvill 
find  that  but  a  small  percentage  pay.  As  has  been  stated  here,  in  a  city  of  19,000 
inhabitants,  15,000  of  that  number  are  delinquents.  You  will  find  a  city  in  this  State 
which  I  could  mention,  where  there  are  3,600  polls,  anci  only  a  few  hundred  have  paid — 
worse  than  the  city  of  Richmond,  that  has  been  referred  to  here  so  often. 

And  so  it  is  throughout  the  entire  list.  You  take  the  county  of  the  gentleman 
from  King  and  Queen  (Mr.  Jones)  and  there  are  only  a  little  over  100  delinquents  in 
the  entire  county. 

Mr.  Claggett  B.  Jones:    And  with  1,000  more  negroes  than  white  population. 

Mr.  Thornton:  Yes,  sir;  with  1,000  more  negroes  than  whites,  is  it  right  and  just 
to  take  the  money  that  these  people  pay  and  give  it  to  those  who  do  not  pay.  I  know 
the  gentleman  from  Louisa  (Mr.  Gordon)  is  as  fair  and  honest  and  honorable,  and  wants 
to  do  right  as  much  as  any  man  ,  on  this  floor,  and  I  ask  him  whether  it  is  right  and 
just  that  money  shall  be  taken  from  this  county  with  a  negro  majority  of  1,000  and 
give  it  to  other  counties  similarly  situated,  who  pay  so  little? 

The  people  throughout  the  State  are  complaining  of  it,  and  justly  so.  They  say 
"  You  are  sending  our  money  to  educate  people  in  other  portions  of  the  State.  "Why 
should  we  try  to  pay  . our  taxes  and  do  what  is  right  when  other  people  do  not?" 

I  say  it  would  be  far  better  for  my  county,  because  my  county  pays  a  good  deal  more 
than  it  gets  back,  not  only  in  schools  but  in  every  other  way.  We  get  but  little  from 
pensions  and  pay  largely.  I  will  state  that  if  you  will  examine  this  report,  you  will 
find  that  the  condition  of  the  tax  on  personal  property  is  just  about  as  bad  as  the 
capitation  tax. 

Mr.  Kendall:  W|e  have  been  discussing  this  question  here  from  two  opposite 
irreconcilable  standpoints,  this  whole  morning.  In  the  minds  of  some  gentlemen  it 
is  desirable  that  this  capitation  tax  shall  be  collected.  In  the  minds  of  others  it  is 
desirable  it  shall  not  be  collected.  In  the  minds  of  some  gentleraen  the  fact  that  it 
may  be  collected  by  levy  or  distress  will  operate  in  the  interests  of  the  white  people 
of  the  State.  In  the  minds  of  other  gentlemen  on  the  floor,  and  I  am  one  of  them,  that 
very  thing  will  operate  to  the  contrary.  I  have  been  amazed  to  see  how  generally 
accepted  has  been  the  theory  of  that  proposition  that  it  shall  not  be  collected  by  levy 
would  operate  in  the  interests  of  the  white  people  of  the  State.  In  my  opinion  there 
are  from  three  to  five  times  as  many  white  people  in  Virginia  who  have  the  poor  deb- 
tor's exemption,  and  nothing  else  but  the  poor  debtors'  exemption  as  there  are  negroes; 
and  the  inducement  therefore,  will  be  offered  to  very  many  more  white  people  not  to 
pay  the  capitation  tax  as  a  prerequisite  to  vote  than  will  be  offered  to  the  negroes. 

We  have  gone  ahead  here,  hov/ever,  and  we  have  discussed  this  question,  some- 
times assuming  that  the  fact  that  it  may  be  levied  will  be  a  good  thing  for  the  white 
people  of  the  State,  and  sometimes  assuming  that  it  will  be  to  their  injury.  Now,  the 
gentleman  from  Prince  William  (Mr.  Thornton)  rises  and  argues  with  his  ingenuity 
and  his  learning  that  we  ought  to  enact  some  kind  of  legislation  which  will  induce  its 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVE^'TiOX  OE  VIRGIXIA. 


2Sid 


payment,  and  that  its  payment  ought  to  be  encouraged  to  the  fullest  extent  by  making 
it  a  local  matter. 

i  say  ail  this  but  illustrates  the  fact  that  this  Convention  ought  first  to  decide,  in 
the  discussion  of  the  suffrage  feature,  "\vliat  is  to  be  done  upon  this  matter  of  capita- 
tion tax,  first,  last  and  all  the  time,  before  the  minds  of  the  members  of  the  Conven- 
tion are  committed  to  any  one  proposition  about  it. 

Yet  we  are  here  to-day  committing  ourselves  upon  this  ciuestion  by  at  least  a 
tentative  vote,  whatever  may  be  done  with  it  after  it  is  adopted.  We  are  here  to-day 
endorsing,  to  a  certain  extent,  and  perhaps  one  which  will  operate  to  control  the  final 
action  of  the  Convention,  as  to  what  the  policy  of  payment  or  non-payment  of  this 
capitation  tax  is  to  be. 

1  say  the  whole  thing  shows  the  unwisaom  of  proceeding  here  at  all.  I  have 
urged  gentlemen  privately  to  lay  this  matter  by,  and  1  now  only  rise  to  say  that  I 
hope  no  member  will  permit  himself  to  be  bound  by  any  vote  that  he  shall  cast  upon 
this  section  as  to  what  we  may  do  in  the  future. 

I  do  say,  though,  that  if  the  Convention  does  adopt  the  course  which  shall  induce 
the  payment  of  the  capitation  tax  by  the  white  man  and  not  by  the  negro,  the  amend- 
ment offered  by  the  gentleman  from  Accomac  will  operate  in  the  black  counties  very 
greatly  indeed  to  take  from  those  counties  that  portion  of  the  tax  which  has  hereto- 
fore been  accorded  them,  and  the  question  you  are  to  decide  is  whether  or  not  that 
is  the  part  of  justice  and  wisdom. 

I  am  fully  willing  to  admit  that  much  may  be  said  on  that  side  of  the  question; 
but  I  thinii  this  great  question  is  one  in  which  the  whole  State  is  interested.  I,  for 
my  part,  v/ould  be  unwilling  to  see  the  free  schools  in  any  of  the  black  counties,  my 
own  or  any  other,  hampered  or  injured  by  a  policy  which  would  not  give  them  a  full 
part  of  the  public  funds,  at  least  to  the  extent  which  they  have  heretofore  derived. 

Mr.  Keezell:  Mr.  President,  ■  1  think  there  is  no  question  but  that  this  matter 
ought  to  be  passed  by  until  such  time  as  we  knov/  what  is  going  to  be  the  decision 
of  the  Convention  with  reference  to  suffrage.  I  must  confess  my  vote  will  be  very 
much  influenced  upon  this  section  vvith  reference  to  what  may  be  done  by  the  Suf- 
frage Committee.  I  am  one  of  those  who  hold  vievv's  very  much  in  favor  of  making 
everybody  pay  taxes  who  ought  to  pay  them.  I  have  served  so  long  upon  the  Finance 
Committee  of  the  General  Assembly  of  Virginia  that  it  is  always  a  little  against  the 
grain  with  me  to  let  up  v\^hen  it  comes  to  a  question  of  taxation;  and  yet  I  concede 
that  there  may  be  reasons  why  v/e  should  let  up,  in  order  to  benefit  and  to  help  some 
sections  of  our  State. 

I  do  not  know  what  is  going  to  be  done  by  the  Suffrage  Committer  or  by  this  Con- 
vention with  reference  to  the  article  on  suffrage.  I  do  not  know  whether  or  not  the 
prepayment  of  this  capitation  tax  will  be  adopted  in  the  shape  that  many  of  us  think 
it  will  be  adopted.  I  know  there  is  a  great  deal  of  difference  of  opinion  about  it.  If 
allowing  this  money  to  be  distributed  as  it  is  now  would  help  some  of  the  black  sec- 
tions of  this  State,  I  would  be  willing  to  vote  differently  from  what  I  would  vote  under 
other  circumstances.  I  recognize,  and  have  recognized  for  j'ears  the  injustice  of  the 
present  method  of  distribution  of  this  money. 

Mr.  Hamilton:  T\liat  you  say  about  that  is  true,  if  you  take  localities  as  the  basis 
of  the  division  of  tax;  but  is  it  right  to  divide  this  capitation  money,  when  you  divide 
nothing  else,  on  the  basis  of  locality?  There  are  certain  counties  that  get  a  great 
deal  more  money  out  of  the  treasury  of  the  State  than  they  put  in,  connected  with 
criminal  expenses,  judiciary  work,  etc.  Are  you  going  to  apph-  this  rule  only  to  the 
capitation  tax  and  nothing  else?    Is  that  right? 

Mr.  Keezell:  I  would  say  that  it  is.  You  tax  him  so  much  upon  his  head,  and 
the  supposition  is  that  the  head  of  a  man  is  worth  as  much  in  one  section  of  the 
State  as  it  is  in  another. 

Mr.  Meredith:  Is  it  not  a  fact  that  the  ability  of  that  head  to  pay  depends  upon 
property? 


2880 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Keezell:  The  idea  is  that  the  tax  should  be  put  low  enough  so  that  every 
man,  who  is  not  physically  disabled  from  earning  a  dollar  by  his  labor,  can  pay  it. 
The  question  of  how  much  a  man  may  own  is  a  different  one.  You  take  the  more 
favored  sections  of  the  State,  where  the  people  own  more  property,  and  you  levy  upon 
that  favored  section  certain  amounts  that  are  not  levied  upon  the  people  of  the  less 
favored  section,  where  they  do  not  own  money  or  property;  and  yet  you  take  that 
money  and  distribute  it  all  around  over  this  State  so  as  to  give  the  poorer  sections 
the  same  advantages  in  the  distribution  that  you  do  the  richer  ones.  I  think  there  is 
a  s:reat  deal  of  difference  between  a  tax  levied  on  a  man's  head  and  a  tax  levied  upon 
property.  The  capitation  tax  is  so  small,  comparatively,  that  if  there  are  any  people 
in  any  section  of  this  State  who  cannot  pay  it,  it  is  because  they  do'  not  want  to  pay 
it.  If  you  take  adjoining  counties,  where  the  conditions  are  exactly  the  same,  you 
will  find  that  in  some  of  them  they  pay  up  almost  to  a  head,  and  In  others  they  do 
not  pay.  1  do  not  think  it  is  right  that  those  counties  where  they  do  pay  the  tax 
should  be  put  at  a  disadvantage  as  compared  with  those  that  do  not  pay  it.  1  say 
that  my  inclination  is  to  vote  for  this  resolution,  because  I  believe  it  is  equitable  and 
right.  And  yet  I  might  be  induced  to  vote  dilferently  if  certain  things  were  to  be 
accomnlished  alons  the  line  of  suffrage.  For  that  reason  I  think  the  discussion  of 
this  question  at  this  time  is  imprudent,  and  that  we  ought  to  pass  this  section  by 
until  we  i^-^ow  what  the  suffrage  plank  is  to  be.  Then  we  can  vote  more  intelligently 
'in  this  proposition. 

Mr.  Harrison:  Before  the  gentleman  passes  from  his  point  I  want  to  ask  him 
a  question.  Why  snould  the  people  in  our  section  of  the  country,  who  can  be  com- 
pelled to  pay  their  taxes,  be  required  to  pay  and  send  the  money  to  other  counties, 
when  the  principal  object  of  this  provision  is  to  release  them  from  paying  their  taxes? 

Mr.  Keezell:  I  say  there  is  another  proposition  in  this  report.  We  men  all  recog- 
nize that  if  we  take  the  pensions  that  have  been  granted  on  account  of  services  in  the 
war  we  will  find  that  they  are  most  unequally  distributed  over  this  State.  In  the 
part  of  the  State  which  the  gentleman  from  Prince  William  represents,  we  find  that 
there  are  very  few  persons  upon  the  pension  roll.  You  may  go  to  another  section  and 
you  will  find  that,  in  counties  of  the  same  size  as  his,  there  are  ten  or  twelve  times 
as  many  people  on  the  pension  rolls.  Under  the  provisions  of  this  clause,  you  are 
going  to  relieve  these  people,  who  are  on  the  pension  roll,  from  being  charged  with 
tnis  $1.50.  You  relieve  them  from  it  absolutely.  And  yet  because  the  people  of 
Prince  William  have,  for  one  reason  or  another,  not  forced  themselves  upon  the  pen- 
sion rolls,  they  are  to  oe  charged  with  $1.50  capitation  tax;  because  they  have  paid 
Zip  their  money  fully,  it  is  to  be  taken  and  sent  into  these  other  counties  where  we 
have  reason  to  beneve,  from  much  evidence  that  has  been  adduced,  that  men  are  upon 
the  roll,  dozens  and  hundreds  of  them,  who  are  not  entitled  to  be  there. 

I  believe  this  is  an  equitable  provision,  and  one  that  this  Convention  ought  to 
adopt,  unless  the  adoption  of  it  would  interfere  In  some  way  with  the  suffrage  pro- 
vision that  is  to  be  enacted  by  this  Convention. 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  the  amendment,  pro- 
posed by  the  gentleman  from  Accomac. 

The  question  navmg  been  taken  by  yeas  and  nays,  the  result  was  announced— 
Yeas,  x8;  nays,  47. 

The  amendment  was  rejected 

Section  6  was  adopted. 

Section  7,  with  slir  at  amendments,  was  adopted. 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  Section  7  as  amended. 
Motion  was  agreed  to. 

The  Presiding  Officer:    The  Secretary  will  read  Section  8. 

Section  8  The  natural  oyster  beds,  rocks  and  shoals  in  the  waters  of  this  State, 
as  at  any  time  defined  by  law,  shall  not  be  leased,  rented,  or  sold,  but  shall  be  held  in 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


2881 


trust  for  the  benefit  of  the  pecnjle  of  this  State,  subject  to  such  regulations  and  restric- 
tions as  the  General  Assembly  may  prescribe. 

Mr.  Eggleston: — Mr.  Chairman,  I  beg  to  call  your  attention  to  a  provision  in  line 
2  of  this  section.  The  section  reads:  "The  natural  oyster  beds,  rocks  and  shoals  in 
the  waters  of  this  State,  as  at  any  time  denned  by  la'^,  shall  not  be  leased,  rented, 
or  sold."  I  think  I  know  what  the  committee  wishes  to  do  with  regard  to 
these  oyster  beds;  but  the  effect  of  this  language  seems  to  me  to  be  this:  It  at  any 
time,  certain  oyster  ground  has  ever  been,  or  may  ever  be  defined  as  an  oyster  bed, 
that  would  prevent  that  land  from  being  rented  out.  That  is  certainly  the  effect  of 
this  language  as  it  stands  now.  You  will  observe  that  at  one  time  under  the  Baylor 
survey,  certain  oyster  beds  were  laid  off  as  natural  rock,  and  certain  others  as  plant- 
ing grounds.  Afterwards  they  found  they  were  mistaken  about  it,  and  they  had  to 
take  in  some  that  was  planting  ground  and  leave  out  other  that  was  natural  oyster 
bed.  Under  this  language,  if  at  any  time  it  is  defined  as  a  natural  feed,  it  cancot  be 
rented  out.  It  seems  to  me  that  language  ought  to  be  changed  to  make  provision  for 
that  objection.  I  would  suggest  an  amendment  by  striking  out  in  ilne  2,  Section  S  'he 
words  "as  at  any  time  defined  by  law,"  and  insert  "and  such  natural  oyster  bed.-., 
rocks  and  shoals  may  be  ascertained  by  law  from  time  to  time. 

On  motion  of  :s1t.  Fairfax  the  Convention  took  a  recess  until  4  o'clock. 

AFTER  RECESS. 

At  the  expiration  of  the  recess  the  Convention  resumed  its  session,  the  President 
/n  the  chair. 

^Iv.  "Westcott:  Mr.  President,  as  a  substitute  for  the  amendment  proposed  by  the 
gentleman  from  Charlotte  CMr.  Eggleston)  to  Section  S,  with  a  view  to  the  acconiplish- 
£ieB.l  of  the  same  object  by  which  the  gentleman  was  actuated  I  offer  the  following 
amendment,  which  is  acceptable  not  only  to  the  gentleman  from  Charlotte  but  to 
members  of  the  committee,  so  far  as  we  have  been  able  to  confer  with  them. 

In  line  2  of  Section  S  strike  out  the  words  "'  as  at  any  time  defined  by  law  "  and  at 
the  end  of  the  section  strik*^  out  the  period  and  insert  a  semi-colon  and  add  these  words: 
"  but  the  General  Assem'jly  may  from  time  to  time  pruvide  by  law  for  surveys  to  define 
such  natural  beds,  rc^-Ks  and  shoals." 

I  wish  to  sa^-  this  amendment  is  designed  to  render  the  section  imobnoxious  to  the 
objection  raised  by  the  gentleman  from  Charlotte,  and  has  the  concurrence  of  all  the 
members  of  the  committee  and  those  especially  interested  in  this  matter  with  whom 
we  have  had  an  opportunity  to  confer 

The  amendment  was  agreed  to. 

The  President:    The  question  recurs  on  the  adoption  of  Section  8  as  amended 
SectioD  S  was  adopted. 

Section  9  was  slightly  amended  and  adopted. 
Section  10  was  then  read. 

Mr.  R.  L.  Gordon:  I  move  to  amend  Section  10  by  adding  at  the  end  of  the  sec- 
tion the  words  "'provided,  the  Legislature  may  increase  the  amount  of  such  "franchise 
fax  at  any  time  the  public  vrelfare  may  so  require." 

The  President:  The  question  is  on  agreeing  to  the  amendment  proposed  by  the 
f^entleman  from  Louisa. 

The  yeas  and  nays  were  ordered,  and  being  taken,  resulted — Yeas,  S;  nays,  51. 

The  amendment  was  rejected. 

Section   10   was  adopted. 

Sections  II.  12  and  13  were  read  and  adopted. 
Section  14  was  read. 

Mr.  R.  L.  Gordon-  'Mv.  President,  I  desire  to  insert  the  words  "190S"  in  lieu  of 
the  words  "1913"  in  line  7,  Section  14. 


2882  DEBATES  OF  THE  CONSTITUIIOIsTAL  CONVENTION  OF  VIRGINIA. 

I  simply  desire  to  state  to  the  Convention  that  the  effect  of  this  amendment  will 
be  to  reduce  the  ten-year  limitation  to  five  years.  It  will  keep  the  present  system 
of  taxation  in  operation  for  five  years,  and  after  that  time  leave  it  to  the  General  As- 
sembly.   I  shall  not  press  the  amendment  further  than  to  make  this  statement. 

The  amendment  was  rejected. 

Mr.  Meredith:  Mr.  President,  the  committee  desire  to  ask  leave  to  add  at  the 
end  of  the  section  (making  the  period  a  semi-colon,  the  following: 

Provided  however  that  if  for  any  reason  the  said  system  shall  become  inoperative, 
the  General  Assembly  shall  have  power  to  adopt  some  other. 

Section  14,  as  amended,  was  adopted. 

The  President:    The  Secretary  will  read  Section  15. 

Sec.  15.  Until  otherwise  prescribed  by  law,  trust  or  security  companies  chartered 
by  the  state,  and  incorporated  banks,  shall  be  taxed  in  the  same  manner  in  which 
incorporated  banks  are  now  taxed:  Provided.  That  from  the  total  assessed  value  of 
the  shares  of  stock  of  any  such  company  or  bank,  there  shall  be  deducted  the  assessed 
value  of  its  real  estate  otherwise  taxed  in  Virginia,  and  the  value  of  each  share  of 
stock  shall  be  its  proportion  of  the  remainder. 

Mr.  Meredith:    I  move  to  amend  that  as  follows: 

By  striking  out  the  word  "  now  "  in  line  4  and  inserting  after  the  word  "  taxed " 
the  words  "  by  law  in  force  January  1,  1902." 

The  amendment  v/as  agreed  to. 
Section  15,  as  amended,  was  adopted. 

Section  16,  relating  to  property  exempt  from  taxation,  was  then  read  and  amended 
slightly  by  the  committee. 

Mr,  Turnbull:    Mr.  President,  I  move  to  amend  by  adding  at  the  end  of  Sec- 
tion D  these  words,  which  I  will  ask  the  Secretary  to  read: 

But  the  exemption  mentioned  in  this  sub-section  shall  not  apply  to  any  industrial 
school,  individual  or  corporate,  not  the  property  of  this  State,  that  contracts  for  work 
of  any  kind,  established  workshops,  printing  establishments,  or  factories  of  any  kind 
that  do  work  for  compensation,  or  manufacture  articles  for  sale  in  competition  with 
like  workshops  or  factories  in  the  community  in  which  such  school  is  located. 

Mr.  President  and  gentlemen  of  the  Convention,  I  would  like  to  nave  your  atten- 
tion for  a  short  time  while  I  attempt  to  explain  the  importance  of  this  amendment 
which  I  have  just  offered  to  Sub-section  D.  In  1888  there  was  an  industrial  school 
for  colored  people  established  in  my  town  under  the  auspices  of  the  Episcopal  Church. 
That  school  commenced  with  very  small  proportions.  In  1890  the  school  was  incor- 
porated by  the  General  Assembly  of  Virginia,  and  I  was  appointed  one  of  the  trustees. 
And  I  am  still  one  of  the  trustees. 

I  mention  that  fact  in  order  that  the  position  that  I  take  in  reference  to  this  matter 
may  be  fully  understood.  At  the  time  this  school  was  established  it  was  in  a  small 
building  in  the  town  in  which  I  live,  and,  from  time  to  time,  I  assisted  the  principal, 
as  did  the  other  trustee  in  acquiring  property  to  advance  the  interests  of  the  school. 
I  v/ant  it  understood  that  I  am  heartily  in  favor  of  this  system  of  industrial  education 
for  the  colored  people,  because  I  believe  it  is  the  only  line  in  v/hich  they  can  be 
useful,  and  that  there  will  be  less  opposition  to  their  education  in  that  line,  in  this 
Southern  country,  than  in  any  other.  Prior  to  the  v/ar  there  always  had  been  mechan- 
ics, and  there  was  little  friction  between  tlielr  people  and  ours  on  that  subject.  That 
school  has  now  grown  to  large  proportions.  It  owns,  inside  the  corporate  limits 
of  my  town,  from  $75,000  to  $100,000  worth  of  property.  It  has  some  buildings  there 
that  cost  cost  over  $100,000  a  piece,  and  they  have  not  only  established  a  saw-mill. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIEGIMA. 


2883 


but  they  have  bought  something  like  1.700  acres  of  land  for  the  purpose  of  getting 
timber  to  be  sawed  and  worked  up  in  competition  with  other  saw-mills  in  the  county. 
They  have  one  or  two  head  carpenters,  who  are  employed  regularly  by  the  institution, 
and  the}'  work  the  scholars  of  the  institution  under  them.  They  not  only  contract  for 
all  the  buildings  that  are  erected  inside  of  the  town,  but  they  contract  for  buildings 
anywhere  else  in  the  county.  In  fact,  they  come  in  direct  competition  with  every- 
body else  that  is  in  business  in  that  county.  Not  only  that,  but  they  have  a  wheel- 
wright establishment  that  does  work  for  compensation.  They  have  u  shoe  shop  that 
does  the  same  thing.  They  have  a  printing  establishment  that  does  the  same  thing. 
They  have  got  an  ice  plant  established,  but  this  is  not  in  competition  with  any  ocher 
industry,  because  there  is  no  other  industry  of  that  kind.  By  the  employment  of  one 
or  two  competent  men  at  the  head  of  these  young  men,  who  are  there  as  students  in 
the  school,  they  can  do  work  at  a  less  figure  than  anybody  who  comes  in  competition 
with  them.  This  fact  has  created  great  animosity  to  the  school,  and  I  think  rightly 
£0.  Xot  only  that,  but  inio  competition  in  the  town  of  Lawrenceville  with  respect 
to  every  species  of  property.  TMienever  a  piece  of  real  estate  is  put  up  for  sale  in 
our  town,  you  will  find  the  principal  of  that  school  bidding  against  our  own  people 
for  everj-  lot  within  the  corporate  limits  of  the  town;  and  that  property  is  rented  out 
for  the  benefit  of  the  school  and  is  exempt  from  taxation.  As  far  as  I  am  concerned, 
I  am  a  member  of  the  board  of  trustees,  and  have  at  heart  the  interest  of  the  school, 
because  I  believe  it  is  doing  a  good  thing;  but  I  think  that  this  opposition  to  the 
school  ought  to  be  broken  down  by  not  allowing  them  to  come  into  competition  with 
other  people  without  paying  taxes  to  the  State  of  Virginia  as  they  ought  to  do. 

>7ot  only  have  schools  of  this  kind  been  established  in  my  county  but  in  an  ad- 
joining county,  and  I  understand,  in  other  parts  of  this  State.  If  this  system  continues 
and  the  money  comes  in  from  other  portions  of  the  United  States,  and  they  are 
allowed  to  come  into  competition  with  other  people  in  every  way,  you  will  have  no 
other  workshops  i  nthis  country,  and  no  other  kind  of  manufacturing  establishments 
besides  those  managed  by  these  schools.  I  say  the  principle  at  the  bottom  of  this 
is  vrrong.  Xo  such  class  of  people  ought  to  set  up  in  opposition  to  the  people  who 
pay  taxes  to  the  State  of  Virginia,  when  they  pay  no  taxes.  It  gives  them  an  advan- 
tage they  ought  not  to  have.  Xot  only  that,  but  I  say  it  creates  friction.  It  creates 
ill-feeling  in  the  community  in  which  the  school  exists,  and  it  does  it  naturally  and 
properly. 

Therefore  I  hope  that  it  will  be  the  pleasure  of  this  Convention  to  adopt  this 
amendment,  and  to  require  schools  of  this  kind,  when  they  go  outside  of  the  legiti- 
mate limits  for  which  schools  of  that  sort  are  established,  to  pay  taxes  when  they 
come  into  competition  with  other  people  who  have  to  pay  taxes.  I  do  hope  it  will  be 
the  pleasure  of  the  Convention  to  adopt  this  amendment. 

Mr.  Vysor:  That  industrial  school  of  which  you  speak,  is  not  exempt  by  this 
section. 

Air.  Turnbull:  I  think  it  is.  I  so  construe  the  language.  The  school  is  not  run 
for  -nrofit.  It  is  run  for  the  advantage  of  the  scholars  of  the  instittition.  It  is  all 
risrht  to  have  these  industrial  enterprises;  but  when  they  come  into  competition  with 
people  who  are  required  to  pay  taxes  they  ought  not  to  be  exempt  from  the  payinent 
of  taxes,  but  ought  to  be  required  to  pay. 

I  want  it  understood  that  I  am  not  offering  the  amendment  because  I  am  opposed 
to  this  institution,  for  by  an  examination  of  the  catalogue  you  will  find  that  I  am 
one  of  the  trustees,  and  a  member  of  the  executive  committee.  VTiile  I  am  not  au- 
thorized to  say  so  by  the  other  members  of  the  executive  committee.  I  believe  the^- 
are  heartily  in  favor  of  this  amendment.  I  want  to  show  you  the  size  of  this  school 
and  how  it  has  increased.  The  gross  receipts  of  that  school  last  year  were  $34,416.02. 
and  the  income  from  these  industrial  enterprises  was  S3.145.76.  These  enterprises, 
as  I  say.  were  thrown  into  direct  conflict  and  competition  with  every  enterprise  of 


2884 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA, 


like  character  in  my  town  and  in  the  county.  I  say  that  is  wrong.  I  think  it  would 
be  better  for  these  schools,  and  for  other  schools  of  like  kind  to  do  away,  as  far 
as  possible,  with  the  friction  on  account  of  the  fact  that  they  are  exempt  from  taxa- 
tion, and  are  therefore  able  to  contract  for  work  at  a  lower  figure  than  anybody  else 
can.  They  are  able  to  do  blacksmithing  at  a  price  less  than  anybody  else.  They  are 
able  to  sell  timber  at  a  less  price  than  anybody  else.  They  are  able  to  repair  shoes 
at  a  less  price  than  anybody  else,  and  to  do  printing  at  a  less  price  than  anybody  else. 

Mr.  O'Flaherty:  I  agree  with  you  in  principle;  but  I  do  not  see  what  language 
here  would  exempt  them. 

Mr.  Turnbull:  The  whole  system  there  shows  that  we  want  to  exempt  schools 
that  are  not  run  for  the  profit  of  individuals.  This  school  is  not  run  for  the  profit  of 
any  individual.  It  is  a  corporation,  and  the  profit  goes  into  the  school,  for  the  benefit 
of  the  school  itself. 

Mr.  Mcllwaine:  Mr.  President,  I  am  not  prepared  to  oppose  that  amendment,  but 
still  it  seems  to  me  that  we  ought  to  go  slowly  in  adopting  it.  It  ought  to  be  the 
policy  of  the  State  to  encourage  industrial  institutions,  and  where  those  industrial 
institutions  are  conducted,  not  for  profit,  but  in  order  that  they  may  carry  on  their 
work  more  successfully,  and  be  of  enlarged  benefit  to  the  people  of  the  State,  it  seems 
to  me  that  it  is  legitimate  for  them  to  sell  the  product  of  their  labor  in  competition 
witjh  other  people.  If  they  work  like  other  people,  trying  to  make  a  profit  for  the 
benefit  of  individuals,  then  it  would  be  perfectly  proper  to  put  them  upon  an  equality 
with  other  people.  But  when  they  are  exerting  their  energy  and  are  doing  all  their 
work  in  order  that  they  may  bestow  large  benefits  upon  the  people  of  the  State,  it 
seems  to  me  to  be  a  matter  of  very  doubtful  propriety  to  put  taxes  upon  them.  In- 
stead of  discouraging  we  ought  to  encourage  every  effort  that  is  made  to  benefit  the 
young  people  of  the  State.  It  seems  to  me,  from  what  I  can  understand  that  this  is 
the  effort  which  these  and  other  similar  institutions  are  making. 

Mr.  Boaz:  I  would  like  to  offer  the  following  amendment  to  the  amendment 
offered  by  the  gentleman  from  Brunswick: 

Add  at  the  end  of  his  amendment  the  followmg:  "Unless  the  work  so  done  or  the 
article  so  manufactured  shall  be  done  or  manufactured  by  students  at  such  institu- 
tions.'' 

The  object  of  my  amendment  is  to  allow  the  students  of  these  industrial  institu- 
tions to  sell  the  articles  which  they  occasionally  make.  The  provision  of  the  gentle- 
man from  Brunswick  would  apply  to  the  Miller  School  in  Albemarle,  but  to  a  limited 
extent.  They  do  not  go  into  the  business  of  manufacturing;  but  occasionally  the  boys 
there  make  some  article  of  furniture  and  sell  it.  I  think  I  have  seen  a  few  desks  that 
have  been  made  in  the  school.    I  do  not  know  what  the  extent  of  the  business'  is. 

If  the  gentleman  will  put  an  exemption  in  in  favor  of  the  Miller  School  I  will 
be  satisfied,  as  that  seems  to  be  the  only  one  that  is  affected,  outside  of  the  school 
in  his  county.  I  think  that  this  would  be  doing  an  injustice  to  these  institutions. 
The  object  of  them  is  to  teach  industrial  pursuits,  and  the  only  way  they  can  be 
taught  is  to  have  them  practically  do  the  work  and  to  actually  manufacture  the  articles 
they  are  being  taught  to  manufacture.  What  on  earth  are  they  going  to  do  with  the 
manufactured  articles  unless  they  sell  them? 

I  hope  that  my  amendment  may  be  accepted. 

Mr.  Willis:  Mr.  President,  I  wish  to  say  a  word  or  two  in  support  of  the  amend- 
ment offered  by  the  gentleman  from.  Brunswick.  The  condition  of  things  which  he 
says  exists  in  his  county  exists  in  mine,  but  to  a  much  greater  extent  and  in  a  much 
more  oppressive  extent  than  in  his.  The  Hampton  Normal  and  Agricultural  Institute 
owns  about  a  million  dollars'  worth  of  property  which  is  exempt  from  taxation.  That 
practically  means  that  Elizabeth  City  county  contributes  to  that  school  in  the  shape 
of  local  exemption  from  taxation  at  least  $3,000  or  $4,000  a  year.    That  school  not 


DEBATES  OE  THE  COXSTITrTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2335 


only  does  not  confine  its  pupils  and  benefits  to  Elizabeth  City  county,  but  it  does  not 
confine  them  to  the  State  of  Virginia.  It  takes  pupils  from  all  over  the  South  and 
from  other  parts  of  the  country,  They  have  there  one  of  the  largest  and  best  equipped 
lumber  mills  in  the  State  of  Virginia,  vrhich  competes  directly  with  every  similar  in- 
dustry in  that  town.  They  take  contracts  to  furnish  everything  that  goes  into  the 
building  of  a  house  anyvhere  on  that  lower  peninsula.  They  have  a  large  establish- 
ment there  for  the  manufacture  of  harness.  They  have  a  wheelwright  and  black- 
smith shop  business.  They  have  one  of  the  best  equipped  printing  establishments 
on  the  entire  peninsula,  and  almost  as  good  as  any  in  the  State.  They  compete  with 
local  establishments,  and  do  work  all  over  that  section.  They  have  between  700  and 
SOO  acres  of  land  exempt  from  taxation,  both  State  and  local.  Some  of  it  is  the  most 
valuable  land  in  the  county.  They  have  so  much  more  than  is  necessary  for  the  pur- 
pose of  teaching  agriculture  that  some  time  ago  they  leased  forty  acres  or  more  to 
the  United  States  government  for  the  purpose  of  a  soldiers"  home  there. 

I  submit,  Mr.  President,  that  if  that  school  was  for  the  benefit  of  the  children 
of  the  community,  thereby  relieving  the  county  of  a  large  part  of  the  burden  of  edu- 
cating its  negro  children,  there  might  be  some  reason  for  permitting  this  local  indus- 
trial competition  to  go  on,  or  there  would  not  be  such  ground  for  opposition  to  it. 
It  does  seem  to  me  that,  under  all  the  circumstances,  the  proposition  of  the  gentle- 
man from  Brunswick  is  fair  and  equitable.  Further,  Mr.  Chairman,  if  some  such 
amendment  as  this  is  not  adopted,  they  can  increase  this  competition  to  an  almost 
unlimited  extent.  If  the  report  of  this  committee  goes  through  we  will  be  powerless 
to  get  any  relief  at  the  hands  of  the  Legislature. 

At  this  point  Mr.  Thom  took  the  chair  as  presiding  officer. 

Mr.  Hamilton:  Mr.  President,  I  think  the  principle  of  the  amendment  offered 
by  the  gentleman  from  Brunswick  is  good;  but  I  do  not  think  the  amendment  as 
offered  is  quite  accurate.  It  is  too  broad.  The  true  distinction  is  this:  You  exempt 
an  educational  institution  because  of  its  educational  qualities  and  properties.  The 
minute  you  allow  that  educational  institution,  whch  you  exempt,  to  undertake  to  go 
into  business  and  compete  with  other  people  who  are  not  exempt  from  taxation,  you 
do  a  wrong  thing.  The  true  distinction  is  that  these  people  ought  to  be  exempt  from 
taxation  as  long  as  the  institution  confines  itself  to  education,  but  the  minute  they 
sell  the  products  of  their  workshops  for  a  profit  that  is  at  more  than  cost,  then  you 
are  doing  an  injustice  to  the  community  where  they  are  located.  If  the  gentleman 
from  Brunswick  will  amend  his  amendment  so  as  to  say  that  when  this  work  is  put 
upon  the  market  at  more  than  cost  they  shall  pay  taxes,  and  not  be  exempt,  I  think 
it  will  cover  the  ground. 

Mr.  WilFis:  It  occurs  to  me,  without  having  an  opportunity  to  consider  it  very 
fully,  that  such  a  proviso  would  be  worse  for  the  community  than  if  they  were  to  sell 
at  a  profit,  because  then  they  v^ould  compete  more  actively  with  the  local  trade. 

:Mr.  Hamilton:  Then  the  logical  effect  of  that  woufd  be  that  you  could  not  have 
an  industrial  school  unless  they  paid  taxes.  But  if  you  make  them  pay  taxes  on  their 
property,  if  they  sell  their  work  for  a  profit,  they  have  either  got  to  sell  it  at  cost, 
which  they  are  not  going  to  do,  or  they  will  pay  taxes,  which  they  will  do.  That  is 
what  you  want.  That  is  the  true  principle  of  distinction,  and  if  the  amendment  of 
the  gentleman  from  Brunswick  is  corrected  to  that  effect,  I  think  we  ought  to  vote 
for  it. 

:Mr.  Turnbull:  I  have  given  the  matter  of  the  amendment  suggested  by  my  friend 
from  Albemarle  and  my  friend  from  Petersburg  as  much  consideration  as  it  has  been 
possible  for  me  to,  in  the  limited  time  I  have  had.  I  do  not  think  their  propositions 
will  meet  the  necessities  of  the  case.  I  think  the  amendment,  as  I  offered  it.  ought 
to  be  adopted  by  this  Convention,  and  if  that  language  is  not  right,  it  ought  to  be 
rejected.  I  vant  to  call  your  attention  to  this  fact.  If  this  system  of  industrial  edu- 
cation is  carried  out  in  the  manner  in  which  it  is  now  being  carried  out.  in  my  sec- 


2886  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

tion  of  the  country  it  will  close  up  all  of  our  institutions  and  enterprises  hy  reason 
of  competition. 

Mr.  Willis:  Mr.  President,  this  same  thing  may  be  done  all  over  the  State,  and 
we  would  be  powerless  to  get  any  relief  from  the  Legislature. 

Mv.  Turnbull:  Mr.  President,  you  have  got  nothing  in  the  world  to  do  but  to 
go  up  North  and  make  the  statement  that  our  people  are  not  treating  the  colored 
people  properly  dov/n  here,  and  you  can  get  any  amount  of  money  you  want  to  estab- 
lish a  school  of  this  sort  and  set  up  competition  in  the  community.  It  has  been  done 
time  and  again,  in  other  counties  besides  my  own.  If  anything  can  fee  done  to  help 
the  people,  it  is  in  this  line,  and  I  submit  that  when  these  schools  are  established  in 
this  country  they  ought  not  to  be  allowed  to  come  into  competition  w^ith  the  honest 
industrial  people  of  the  State  in  the  sections  where  they  are  established,  and  shut 
those  people  out  from  business  altogether.  That  is  the  whole  thing  in  a  nutshell.  It 
is  just  simply  a  question  whether  you  are  going  to  do  that  or  whether  you  are  not 
going  to  do  it.  I  want  you  to  feel  that  I  am  not  not  opposed  to  these  schools.  I  am 
one  of  the  trustees,  and  I  have  done  everything  I  can  to  advance  the  interest  of  the 
school.  That  school  has  300  scholars  to-day,  from  every  section  of  our  State,  and 
some  from  outside  the  State.  They  have  been  taught  to  do  all  kinds  of  industrial 
work,  and  they  are  put  in  competition  with  the  honest  people  of  our  section.  Do 
you  not  see  at  once  that  they  can  destroy,  by  competition,  any  kind  of  a  workshop 
that  is  established  there.  They  have  any  amount  of  money  they  want.  You  have  got 
nothing  to  do  but  ask  for  it  in  a  certain  way,  and  you  will  get  it.  I  say  if  this  sys- 
tem continues  the  friction  will  be  so  great  that  the  work  of  these  scbiools  will  be 
seriously  interrupted  by  the  people  in  the  sections  where  they  are  established,  in  my 
opinion.  I  am  in  earnest  about  this  matter.  I  have  given  it  careful  attention.  I 
have  no  doubt  that  there  are  many  people  who  contribute  to  these  schools  who  will 
think  it  is  strange  for  me  to  make  these  remarks.  I  know  that  some  remedy  must 
be  given  to  correct  this  condition  of  affairs,  and  the  correction  that  is  required  is 
that  these  people  should  pay  taxes  as  other  people  do.  In  other  words,  this  school 
property  occupies  about  one-third  of  the  property  in  my  town.  The  other  people  of 
that  tov/n  are  taxed  to  keep  the  streets  in  order  and  taxed  to  keep  this  school  in 
proper  condition,  but  not  a  dollar's  worth  of  tax  do  these  people  pay.  Yet  they  come 
into  competition  with  every  solitary  man  who  has  an  occupation.  Do  you  wonder 
that  there  should  be  opposition  to  a  school  of  this  kind?  We  put  a  'license  tax  on 
some  of  the  people  there  who  do  work  in  the  tov/n,  and  the  school,  which  is  doing 
the  same  work,  refused  to  pay  it.  They  were  justified  in  refusing  by  the  authorities, 
because  they  said  the  school  was  exempt  from  taxation.  I  admit  that  this  report  will 
check  this  trouble  in  a  measure,  because  you  can  stop  them  from  buying  any  prop- 
erty that  is  not  to  be  used  directly  for  the  school;  but  I  think  they  ought  to  be  re- 
quired to  pay  taxes,  whenever  they  are  engaged  in  business  which  brings  them  into 
competition  with  the  established  trades  of  that  section  of  the  country. 

I  do  not  think  anything  but  this  amendment  v/ill  accomplish  the  purpose  and 
I  do  hope  it  will  be  the  pleasure  of  the  Convention  to  adopt  it. 

Mr.  Boaz:    I  ask  leave  of  the  Convention  to  withdraw  my  amendment. 

Mr.  Meredith  proposed  the  following  amendment: 

But  the  exemption  mentioned  in  this  sub-section  shall  not  apply  to  any  industrial 
school,  individual  or  corporate,  not  the  property  of  this  State,  which  does  work  for 
compensation  or  m^anufactures  and  sells  articles  in  the  community  in  which  such  school 
is  located. 

Mr.  Meredith:  Mr.  Chairman,  the  idea,  of  course,  is  to  prevent  local  competition. 
Where  they  manufacture  goods  and  sell  them  elsewhere,  they  have  the  right  to  do 
it  just  as  anybody  else  has;  but  where  they  enter  into  competition  with  the  daily 
labor  of  the  people  they  ought  to  pay  taxes. 

The  amendment  was  agreed  to. 


DEBATES  OF  THE  COXSTITrTIOXAL  COXTEXTIOX  OF  TIEGIXIA. 


.2887 


]\Ir.  James  Vr.  Gordon:  At  the  bottom  of  this  section,  beginning  with  line  6-i,  I 
want  to  offer  an  amendment.  The  whole  discussion  seems  to  me  to  illustrate  the 
lack  of  wisdom,  so  to  speak,  if  I  may  use  the  term,  of  attempting  to  make  any  of  these 
exemptions  at  all.  I  wish  it  understood  that  I  am  ophposed  to  all  of  the;  but  I 
realize  that  the  committee  and  the  ConTenticn  are  not  willing  to  strike  out  all  of 
these  exemptions  except  churches.  They  have  already  taken  a  vote  on  that  CLuestion 
in  Committee  of  the  "V^Tiole,  and  they  have  voted  it  down.  If  we  are  going  to  have 
exemptions  it  seems  to  me  we  ought  to  have  them  fair  and  equitable,  and  that  we 
ought  to  show  no  partiality. 

'Mr.  President,  may  I  read  the  amendment.  There  is  an  interlineation  in  it,  which 
makes  it  difficult  to  read.  I  want  to  amend  Section  16  in  line  TO  by  inserting  after 
the  word  "person"'  the  words  "except  those  fraternal  secret  orders,  existing  at  the 
time  this  Constitution  goes  into  effect,  whose  entire  property  and  assets  are  dedi- 
cated' to  and  used  exclusively  for  charitable  and  benevolent  purposes. 

The  Presiding  officer:    The  question  is  upon  the  amendment  just  read. 

The  amendment  was  rejected. 

Mr.  James  Gordon:  I  have  another  one,  ^Ir,  President,  and  I  am  going  to 
make  an  appeal  to  my  distinguished  colleague  from  Richmond   (l\Ir.  ^Meredith). 

Amend  Section  16  by  striking  out  all  the  words  beginning  with  the  word  "'  then," 
in  line  73,  and  by  inserting  in  place  of  the  language  stricken  out  the  following  words: 
"■  Then  so  much  of  such  building  land  as  is  leased  or  produces  revenue  or  profit  shall 
be  subject  to  taxation  as  other  land  and  buildings  in  the  same  county,  city  or  town." 

The  amendment  was  rejected. 

Z\Ir.  Brooke:  Mr.  President,  I  desire  to  offer  the  following  amendment  to  come 
in  at  line  75.  page  13,  after  the  word  "town."" 

In  line  75.  add  at  the  end  of  the  section,  the  following: 

Except  that  nothing  herein  contained  shall  be  construed  as  authorizing  or  re- 
quiring any  county,  city  or  town  to  tax  for  county,  city  or  town  purposes  any  violation 
of  the  rights  of  the  lessee  thereof  existing  under  any  lawful  contract  heretofore  made 
in  real  estate  owned  by  such  county,  city  or  town  and  heretofore  leased  by  it. 

]Mr.  President,  I  wish  to  sa^'  to  the  Convention  that  this  amendment  has  been 
submitted  to  the  Committee  on  Taxation,  and  has  undergone  examination  by  them. 
Whether  or  not  it  will  be  accepted,  I  am  not  informed,  but  whether  it  be  accepted  or 
not,  it  seems  to  me  it  is  not  improper  for  me  to  say  a  few  words  in  explanation  of 
the  purpose  of  the  amendment. 

The  city  of  Norfolk,  in  respect  to  some  land  in  that  citj*,  occupies  a  somewhat 
anomalous  position.  The  city  of  Norfolk  was  founded  about  16S0  in  pursuance  of 
an  act  of  the  House  of  Burgesses.  After  fifty  or  sixty  years  after  that,  and  hence 
about  a  hundred  and  fifty  or  a  hundred  and  sixty  years  ago,  the  House  of  Burgesses 
passed  an  act  which  you  will  find  in  Henning's  Statutes  at  large,  which  act  recited 
that  it  appearing  that  certain  lands  adjacent  to  the  city  of  Norfolk,  and  on  the  water 
front  of  the  city  of  Norfolk  were  wearing  away  by  the  action  of  the  water,  and 
whereas  it  was  desirable  that  they  should  be  protected,  the  act  organized  was  known 
as  the  Fort  Land  Company,  authorizing  tEem  to  take  possession  of  these  lands,  to 
reclaim  and  protect  them  from  the  effects  of  water,  and  thereafter  to  sell  them  to 
the  city  of  Norfolk  or  to  the  county  of  Norfolk — the  Borough  of  Norfolk,  as  it  then  was. 

This  company*  refused  to  accept  the  provisions  of  that  act  unless  it  was  so 
amended  as  to  strike  out  the  coimty  of  Norfolk,  and  leave  to  the  Borough  of  Norfolk 
alone  the  right  to  acquire  this  property.  The  act  was  so  amended,  and  in  the  course 
of  a  few  years  the  city  of  Norfolk  did  acquire  this  property  by  purchase  from  the 
Fort  Land  Company,  who  owned  under  the  circumstances  and  for  the  purpose  I  have 
stated. 


2888  DEBATES  OF  THE  CON-STITUTIONAL  CONVENTION  OF  VIRGINIA. 

In  course  of  time  that  property,  which  was  quite  an  area,  was  laid  off  into  streets 
and  town  lots,  and  the  fee  of  it  was  owned  by  the  city  of  Norfolk.  In  about  1780  or 
1785  the  property  having  become  to  some  extent  valuable  for  city  purposes,  the  city 
of  Norfolk  began  to  lease  out  these  town  lots  by  leases  running  ninety-nine  years 
and  renewable.  These  leases  had  provisions  in  them  with  regard  to  the  taxes.  Many 
of  these  leases  fell  in  between  1885  and  1895,  and  were  renewed.  Some  changes  were 
made  in  the  renewal  leases  with  regard  to  the  question  of  taxes.  I  could  not  under- 
take to  say  to  the  Convention  how  many  of  these  leases  there  are.  I  should  imagine 
there  are  not  less  than  fifteen  or  twenty. 

I  have  in  my  hand  a  copy  of  a  lease  in  which  the  property  leased  is  referred 
to  as  being  adjacent  to  lot  No.  10,  which  was  leased  in  the  same  way.  I  have  been 
informed  there  is  some  controversy  or  some  possibility  of  controversy  between  the 
city  of  Norfolk  and  the  holders  of  these  leases  as  to  whether  or  not,  under  the  terms 
of  the  leases  these  properties  are  liable  to  city  taxation. 

The  whole  purpose  of  this  amendment  is  to  leave  that  question  in  statu  quo  as 
between  the  city  on  the  one  part  and  the  lessees  on  the  other. 

The  Presiding  Ofiicer:  The  question  is  on  agreeing  to  the  amendment  proposed 
by  the  gentleman  from  Norfolk  (Mr.  Brooke). 

The  amendment  was  adopted — ^Ayes,  50;  noes,  2. 

On  motion  of  Mr.  Green  the  Convention  adjourned  until  to-mdVrow,  Thursday, 
March  6,  at  10  o'clock  A.  M. 

THURSDAY,  MARCH  6,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  H.  A.  Bagby,  D.  D. 

The  President:  The  unfinished  business  is  the  report  of  the  Committee  on  Fin- 
ance and  Taxation. 

Mr.  Fairfax:  Mr.  President,  the  committee  would  like  to  offer  an  amendment  in 
line  7,  page  10: 

At  the  end  of  line  7,  after  the  word  "  purposes  "  "  all  obligations  issued  by  the  State 
and  exempted  by  law  and  obligations  issued  by  counties,  cities  or  towns  may  be 
exempted  by  the  authorities  of  =iuch  localities  from  local  taxation." 

Mr.  President,  that  is  to  prevent  the  effort  that  may  be  made  to  tax  the  securities 
of  the  State  which  are  exempt  under  the  contract  by  which  they  are  issued.  Bonds, 
or  anything  of  that  sort,  issued  by  towns,  cities  or  counties  should  be  exempt  from 
local  taxation.    This  simply  clears  the  matter  up. 

Mr,  Meredith:  Mr.  President,  under  this  provision  the  local  obligations  are  simply 
exempt  from  taxation.  That  is  the  custom  now.  Wie  felt  confident  that  State  obliga- 
tions were  secure  under  the  contract  they  had;  but  as  the  language  was  very  broad, 
we  thought  it  would  not  do  to  raise  any  issue  that  would  affect  the  market  value  of 
securities  of  that  kind.  Of  course,  the  usual  course  is  for  cities  and  counties  not  to 
tax  their  own  securities.  No  government  is  going  to  tax  its  own  securities,  because 
thereby  it  would  depreciate  them  in  the  market. 

The  amendment  was  agreed  to. 

Mr.  R.  L.  Gordon:  I  offer  an  amendment  to  Section  16,  in  line  3,  after  the  word 
"local""  to  add  "but  the  General  Assembly  may  hereafter  tax  any  of  the  property 
hereby  exempted,  except  that  mentioned  in  paragraph  A." 

I  desire  to  say,  Mr.  President,  that  this  amendment  is  offered  for  the  gentleman 
from  Culpeper,  and  is  not  precisely  the  amendment  he  desires.  His  amendment  is  as 
follows : 

Except  as  otherwise  provided  in  this  Constitution,  the  following,  and  no  other 
property,  may,  in  the  discretion  of  the  General  Assembly,  be  exempt  from  taxation. 
State  and  local. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  2889 

I  consulted  with  all  of  the  members  of  the  Committee  on  Taxation  and  Finance 
that  I  could  reach,  and  they  suggested  this  change,  which  I  think  accomplishes  the 
same  purpose,  and,  as  I  understand,  it  is  acceptable  to  all  of  the  committee.  I  desire 
to  say  to  the  Convention  that  the  effect  of  the  amendment  is  simply  to  give  the  Legis- 
lature the  power,  if  it  should  deem  it  wise  in  the  future,  to  tax  any  of  the  property 
mentioned  in  all  these  sections,  except  Sub-section  A.  In  other  words,  if  in  the  future 
it  should  be  demonstrated  that  any  of  these  exemptions  are  abused,  the  Legislature 
will  have  the  power  to  correct  that  abuse  and  remedy  any  trouble  which  may  grow 
out  of  it. 

The  amendment  was  agreed  to. 

Mr.  Parks:  Mr.  Presideilt,  on  yesterday  I  proposed  to  amend  Sub-section  G,  on 
page  12,  the  object  of  the  amendment  being  to  exempt  from  taxation  the  Confederate 
Museum.  I  did  not  know  at  that  time  how  the  property  was  held,  and  the  matter 
was  passed  by  for  the  purpose  of  getting  that  information.  I  learn  now  that^  the 
property  is  held  by  the  Confederate  Memorial  Literary  Society,  which  is  an  incor- 
porated institution.  I  want  to  amend  by  inserting  in  Sub-section  G,  in  line  76,  after 
the  word  "antiquities,"  these  words:  "The  Confederate  Memorial  Literary  Society," 
so  that  the  section  will  read:  "Property  belonging  to  the  Association  for  the  Preserva- 
tion of  Virginia  Antiquities,  the  Confederate  Memorial  Literary  Society  and  to  the 
Mount  Vernon  Ladies'  Association  of  the  Union." 

The  amendment  was  agreed  to. 

The  President:    If  there  are  no  further  amendments,  the  question  recurs  on  the 
adoption  of  Section  16  as  amended. 
The  section  was  adopted. 
Section  17  was  read  and  adopted. 
Section  18  was  then  read. 

Mr.  Brown:    I  desire  to  offer  the  following  amendment. 

Insert  in  line  10.  after  the  word  "  improvement,"  the  words  "  except  public  roads." 

Mr.  President,  I  desire  to  state  that  this  amendment  is  offered  to  obviate  any 
difficulty  that  might  arise  in  the  judicial  construction  of  the  words  "internal  improve- 
ment." VThen  the  matter  was  brought  up  in  committee  it  was  the  opinion  of  lawyers, 
members  of  the  committee,  that  the  words  "internal  improvement"  did  not  refer  to 
the  public  roads  of  the  State.  But  there  seems  to  be  a  difference  of  opinion  on  that 
subject.  If  the  words  "internal  improvement"  by  no  possible  construction  could  refer 
to  the  roads  of  the  State,  this  section  would  mean,  exactly  what  I  would  want  it  to 
mean.  But  there  is  a  difference  of  opinion  in  this  body  on  that  matter.  I  want  to 
make  it  absolutely  clear  that  the  words  "internal  improvement"  cannot  refer  to  the 
public  roads  of  this  State. 

It  has  been  suggested  that  if  these  words  are  added  it  will  allow  the  State  to  go 
into  a  general  system  of  State  improvement  of  roads.  I  do  not  wish  to  deny  that  if 
it  is  the  wish  of  the  Legislature  to  go  into  such  an  extended  system  of  public  road 
work,  but  I  do  not  believe  that  can  ever  be  the  case.  Even  should  it  be  the  case,  I 
think  the  Legislature  ought  to  be  free  to  do  what  the  people  of  this  State  want  to 
be  done.  The  other  provisions  of  this  article  provide  against  any  abuse.  In  Section 
17  it  is  provided  that  no  debt  shall  be  created  by  the  State  except  to  meet  casual  de- 
ficits in  the  revenue,  to  redeem  a  previous  liability  of  the  State,  to  suppress  insurrec- 
tion, repel  invasion  or  defend  the  State  in  time  of  War.  It  was  stated  on  this  floor 
the  other  day  when  the  matter  was  up  in  Committee  of  the  Whole,  that  there  might 
be  a  casual  deficit  created  year  after  year  by  the  action  of  the  State  Legislature  in 
maldng  appropriations  for  public  roads.  It  does  seem  to  me  that  if  there  was  such 
a  set  purpose  on  the  part  of  the  Legislature  to  defy  the  Constitution  the  courts  would 
step  in  and  say  it  was  in  contravention  of  the  Constitution.  I  do  not  think  there  is 
any  possibility  of  this  resolution  leading  the  State  into  the  issue  of  bonds  for  the 
purposes  of  public  roads.  In  Section  18  it  is  provided  that  the  State  shall  not  be- 
182— Const.  Deb. 


2890 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


come  interested  in  any  corporation,  and  that  the  State  shall  not  subscribe  to  or  be- 
come interested  in  the  stock  or  obligations  of  any  company,  association,  or  corpora- 
tion, for  the  purpose  of  aiding  in  the  construction  of  or  maintenance  of  its  works.  It 
would  be  impossible,  therefore,  under  the  amendment  which  I  offer,  for  the  State  to 
become  interested  in  any  turnpike  company,  or  any  company  of  that  character,  and 
sink  the  money  of  the  people  in  that  way.  It  is  further  provided,  in  the  last  part 
of  this  section,  that  the  State  shall  not  assume  any  indebtedness  of  any  county,  city 
or  town,  or  lend  its  credit  to  the  same.  It  would  be  impossible,  therefore,  for  the 
State  to  become  interested  in  a  system  of  roads  and  lend  its  credit  to  the  counties. 
The  purpose  of  this  resolution  is  to  clear  up  the  meaning  of  the  words  "internal  im- 
provement," so  that  there  shall  be  no  doubt  on  that  subject. 

Its  adoption  will  leave  the  Legislature  free  to  make  such  appropriations  from  the 
current  revenues  as  it  may  deem  wise. 

It  may  create  and  maintain  a  bureau  of  public  roads,  with  a  capable  head,  and 
enable  the  State  to  adopt  a  systematic  plan  of  instructing  and  aiding  the  several 
counties  of  the  State  in  the  best  methods  of  road  construction.  I  do  not  advocate  build- 
ing or  maintaining  roads  at  State  expense,  as  I  think  it  should  be  done  by  local  taxa- 
tion, but  I  do  not  want  any  provision  incorporated  in  the  Constitution  that  will  prevent 
the  State  from  making  such  advances  in  the  improvement  of  the  roads  of  the  Common- 
wealth and  from  taking  such  part  in  said  improvement  as  experience  may  show  to  be 
desirable.    I  think  the  General  Assembly  should  not  have  its  hands  tied. 

It  seems  to  me,  too,  that  an  adverse  court  might  interpret  the  wording  of  the 
report  as  it  stands  to  mean  that  the  State  could  not  employ  convicts  of  the  State  in 
work  upon  the  roads  of  the  counties. 

I  hope  it  will  be  the  pleasure  of  the  Convention  to  adopt  the  amendment  which  I 
have  offered.  I  beg  to  say  I  have  submitted  it  to  the  Finance  Committee  and  a  large 
mfejority  of  the  members  of  that  committee  are  willing  to  accept  the  same. 

Mr.  Boaz:  Mr.  President,  when  this  amendment  was  offered  in  Committee  of  the 
Whole,  I  gave  my  reasons  for  my  opposition  to  it.  I  still  have  those  objections.  The 
gentleman  says  he  desires  to  except  roads.  What  does  he  mean  by  roads?  He  does 
not  define  what  he  means.  He  may  mean  railroads  or  anything  else;  but  taking  it  that 
way  he  means  only  public  roads  of  the  State,  it  may  mean  the  incurring  of  a  large 
debt  on  the  part  of  the  State  notwithstanding  what  the  gentleman  says.  What  good 
is  it  going  to  do  to  put  in  it  here,  if  it  does  not  mean  that  the  State  is  going  to  expend 
money  on  the  roads?    We  cannot  get  roads  without  money. 

In  Committee  of  the  Wliole  I  called  attention  to  the  fact  that  our  present  public 
debt  was  built  up  in  this  way.  The  State  first  incurred  its  debt  by  becoming  a  party 
to  the  improvement  of  the  roads.  They  commenced  to  build  turnpikes,  to  which  the 
State  subscribed  three-fifths.  They  went  from  that  to  canals  and  then  to  railroads; 
and  we  now  have  this  large  debt  on  our  hands,  which  costs  us  gome  $800,000  of  annual 
interest  and  this  is  just  the  beginning  of  the  same  process  over  again.  It  certainly 
cannot  be  any  benefit  to  the  roads  unless  some  money  is  spent  by  the  State.  If  the 
amendment  does  not  mean  the  spending  of  money  by  the  State  on  roads,  I  do  not  see 
what  good  it  is  to  put  it  in  here. 

This  question  of  roads  is  a  very  extensive  one.  I  do  not  know  now  many  miles 
of  road  there  are  in  the  State,  but  I  was  talking  with  the  gentleman  from  Amherst  county 
(Mr.  Cam^pbell)  a  few  days  ago  and  he  told  me  that  some  years  ago  they  measured  all 
the  roads  in  Amherst  and  there  were  some  500  miles  of  road  in  that  county.  Amherst 
is  rather  a  small  county,  certainly  not  above  the  average,  and  taking  that  as  the 
average,  that  would  be  500,000  miles  of  road.  The  authorities  on  the  subject  of  road 
making  say  that  the  cheapest  price  at  which  you  can  build  a  good  macadamized  road 
of  only  9  feet  width  is  $3,000  a  mile.  If  you  multiply  500,000  miles  by  $3,000,  you  get 
a  billion  and  a  half  dollars.  If  it  is  proposed  to  build  roads  of  this  kind  all  over  the 
State,  you  see  what  an  enormous  liability  can  be  incurred.    It  is  true  there  is  a  pro- 


DEBATES  OF  THE  COXSTITUTIOXAL  CO>^VEXTION  OF  VIKGINIA. 


2891 


hibition  on  the  State  from  incurring  any  debt  except  to  meet  casual  deficit  in  the 
revenue;  but  as  was  pointed  out  by  the  gentleman  from  Petersburg,  this  casual  deficit 
may  occur  every  year.  The  money  of  the  State  may  be  directly  appropriated  for  roads 
and  the  cash  on  hand  will  be  consumed  for  roads  and  a  deficit  will  be  incurred  to  pay 
ordinary  expenses  of  government, 

I  do  hope  the  Convention  will  not,  by  adopting  this  provision,  incur  the  risk  of 
piling  up  another  tremendous  debt  to  v/orry  us  for  generations  to  come,  and  to  en- 
courage the  idea  that  this  can  be  done.  We  will  never  get  good  roads  by  agitation 
and  talking  about  it.  It  simply  means  money.  The  money  has  to  come  from  some 
source  or  other,  and  there  is  no  species  of  legerdemain  by  which  you  can  get  around 
that  fact. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Bedford. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — ayes  42,  noes  29,  as 
follows: 

Ayes:  Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Barham,  Bouldin,  Bristow, 
Brooke,  Brown,  Epes,  Fairfax,  Fletcher,  James  W.  Gordon,  R.  L.  Gordon,  Green,  Hooker, 
Ingram,  Claggett  B.  Jones.,  G.  W.  Jones,  Lincoln,  Lindsay,  Lovell,  Marshall,  Meredith, 
Miller,  Moncure,  R.  Walton  Moore,  Mundy,  Parks,  Phillips,  Pollard,  Quarles,  Richmond, 
Rives,  Robertson,  Stebbins,  Stuart,  Summers,  Thom,  Waddill,  Walker,  Willis,  Yancey 
and  the  President — 42. 

Noes:  Messrs.  Allen,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Boaz,  Cameron,  C.  J. 
Campbell,  Carter,  Cobbs,  Crismond,  Earm-an,  Garnett,  Gilmore,  Gregory,  Gwyn,  Han- 
cock, Hardy,  Harrison,  Kendall,  Mcllwaine,  O'Flaherty,  Pedigo,  Pettit,  Tarry,  Thornton, 
Turnbull,  Wescott,  Withers,  AVoodhouse,  and  Wysor — 29. 

The  amendment  was  agreed  to. 

The  President:    The  question  recurs  on  the  adoption  of  Section  18,  as  amended. 
Mr.  R.  L.  Gordon:    Mr.  President,  I  desire  to  offer,  for  the  gentleman  from  Culpeper 
(Mr.  Barbour),  the  following  amendment  at  the  end  of  Section  18: 

Provided  that  this  section  shall  not  prevent  the  perfecting  of  subscriptions  by  a 
city  or  county  to  the  capital  stock  of  a  railroad  company  heretofore  authorized  under 
existing  charter,  conditioned  upon  the  affirmative  vote  of  the  voters  and  freeholders 
of  such  city  or  county  in  favor  of  such  subscription:  Provided,  such  vote  be  had  prior 
to  July  1st,  1903. 

I  desire  to  state  to  the  Convention  that  this  amendment  has  been  submitted  to  all 
the  members  of  the  committee  who  are  on  the  floor  this  morning,  and  I  understand  it 
is  not  objectionable  to  them. 

The  occasion  for  it  is  simply  to  protect  the  gentlemen  who  have  expended  a  con- 
siderable amount  of  money  in  getting  these  charter  rights  in  the  counties  of  Culpeper 
and  Rappahannock.  They  desire  to  have  the  right  up  there  in  those  two  counties  to 
vote  a  subscription  to  a  proposed  road,  and  the  object  of  this  amendment  is  simply  to 
avoid  cutting  these  people  off  from  that  right  if  they  desire  to  exercise  it. 

The  amendment  was  agreed  to. 

Mr.  Stuart:  Mr.  President,  I  move  to  amend  Section  18  by  adding  at  the  end  of 
the  section  this  languge: 

Nor  shall  the  board  of  supervisors  of  any  county  create  any  bonded  indebtedness 
on  said  county  or  borrow  money  on  the  credit  of  the  county,  except  under  authority 
first  obtained  therefor  by  the  concurrent  vote  of  the  majority  of  the  qualified  votei^ 
of  the  county,  which  majority  shall  include  a  majority  of  the  freeholders  voting  in 
the  county. 

Mr.  President,  I  wish  to  say  briefly,  in  support  of  this  amendment,  that  it  is  in 
substance  the  sam^e  as  the  one  offered  by  the  gentleman  from  Tazewell  (Mr.  Gillespie) 
during  the  consideration  of  the  report  of  the  Committee  on  Legislation.    I  supported  the 


^b\)2  DEBATES  OF  THE  CONSTITUTIOJ^AL  CONVENTION  OE  VIEGINIA. 

amendment  at  the  time,  and  it  was  on  the  assurance  cf  the  chairman  of  the  Committee 
on  the  Legislative  Department  that  it  should  properly  be  considered  in  connection  with 
the  report  of  the  Committee  on  Taxation  and  Finance  that  it  was  abandoned  at  that 
time.  I  do  not  Imov/  that  any  argument  I  may  present  to  this  body  will  change  the 
opinion  of  any  gentleman  on  a  subject  which  is  so  plain  as  that  suggested  by  the  amend- 
ment. It  does  seem  to  me  that  this  is  a  very  v^rholesome  and  proper  restraint  upon  the 
taxing  power,  v/liich  at  times  may  become,  and  has,  in  some  cases  in  Virginia  become, 
an  irresponsible  taxing  power. 

I  do  not  reflect  upon  the  boards  of  supervisors,  and  particularly  not  upon  my  own 
board  of  supervisors,  which  I  consider  an  admirable  one.  But  it  seems  to  me  to  be  a 
very  proper  and  conservative  measure  that  their  power  to  lay  burdens  upon  the  tax- 
payers of  a  county  should  be,  in  some  way,  limited.  I  hardly  think  it  necessary  to 
dwell  on  the  importance  of  that  subject.  It  seems  to  me  to  be  manifest  from  the 
standpoint  of  conservatism  and  good  local  government. 

Mr.  Gillespie:  Mr.  President,  I  think  the  amendment  suggested  by  the  gentleman 
from  Russell  (Mr.  Stuart)  is  a  desirable  one.  Boards  of  supervisors  are  often  elected 
by  the  county  without  any  thought  of  creating  a  bonded  indebtedness,  and  vv^ithout 
the  people  having  an  opportunity  to  consider  the  question  as  to  their  power  to  create  a 
bonded  indebtedness,  which  may  involve  the  county  in  debt  for  years.  This  does  not 
prevent  the  people  of  the  county  from  borrowing  money.  If  the  people  of  a  county 
want  to  borrow  forty  or  fifty  thousand  dollars  to  improve  the  roads,  this  does  not  pre- 
vent them  from  doing  so;  but  it  requires  that  before  any  such  indebtedness  shall  be 
created  the  board  of  supervisors  shall  first  obtain  authority  therefor  by  the  concurrent 
vote  of  the  majority  of  the  qualified  voters  of  the  county,  which  majority  shall  include 
a  majority  of  the  freeholders. 

I  think  the  proposition  is  a  good  one,  and  one  that  ought  to  be  adopted  by  this 
Convention. 

Mr.  Fairfax:  Mr.  President,  I  think  there  is  merit  in  the  amendment  offered  by 
the  gentleman  from  Russell.  It  is  a  matter,  however,  which  is  sprung  upon  us  here  to- 
day for  the  first  time,  and  in  order  that  the  committee  may  thoroughly  understand  the 
matter  and  properly  frame  the  verbiage  of  this  amendment,  I  respectfully  request  that 
it  be  passed  by  for  the  present. 

The  President:  That  will  be  understood  to  be  the  sense  of  the  Convention  unless 
objection  is  made. 

Sections  19,  20,  21  and  22  were  read  and  adopted. 

Section  23  was  read  and  adopted. 

Mr.  Thorn  moved  to  reconsider  the  vote  by  v/hich  Section  22  was  adopted. 

Mr.  Thorn:  Mr.  President,  I  v/ant  to  point  out,  in  connection  with  the  amend- 
ment suggested,  the  danger  is  the  language  used  by  the  committee.  I  think  the  com- 
mittee will  understand,  and  I  trust  the  Convention  will  also,  that  this  suggestion  is  not 
made  in  any  captious  or  fault-finding  spirit,  but  because  of  what  seems  to  me  to  be  a 
danger  lurking  in  the  present  language. 

Let  us  see  how  this  language  stood  historically.  It  was  first  used  in  the  present 
Constitution  of  Virginia  when  the  status  about  the  public  debt  was  that  there  was  a 
debt  of  the  whole  State  of  Virginia,  a  part  of  which  it  was  proper  that  the  State  of 
West  Virginia  should  bear.  The  language,  "  the  public  debt  of  Virginia "  as  used  in 
the  Constitution  was  apt  for  the  purpose  of  defining  a  public  debt,  all  of  which  was 
the  obligation  of  Virginia,  but  a  part  of  which  in  equity  should  be  borne  by  West  Vir- 
ginia and  the  balance  by  Virginia. 

That  status  is  changed,  when  Virginia's  attitude  on  this  question  is  that  the  mat- 
ter has  been  settled,  and  she  has  assumed,  by  a  settlement  with  her  creditors,  a  debt 
all  of  which  is  hers  and  that  she  is  no  longer  bound  for  the  portion  laid  off  for  West 
Virginia;  but  by  the  use  of  this  language  "public  debt  of  Virginia  part  of  which  to 
be  appointed  to  West  Virginia  and  a  part  to  Virginia;"  you  still  recognize  that  there 


DEBATES  01  THE  COXSTITUTIOXAL  COXTEXTIOX  Ox  TIRGIXIA. 


5893 


is  a  debt  for  all  of  vrMch  Tirginia  is  bound  but  for  part  of  vbicli  West  Virginia  sboTild 
acknowledge  herself  bound;  and  if  the  language  is  left  as  it  is,  the  State  of  Virginia,  in 
tbe  highest  form  of  Constitutional  expression,  is  aclmowledging  that  there  is  a  debt  for 
which  the  State  of  Virginia  is  bound  but  a  part  of  which  ought  to  be  laid  on  to  "West 
Virginia. 

Mr.  Flood:  Is  it  a  fact  that  the  815,000.000  of  West  Virginia  securities  is  an 
obligation  on  the  part  of  the  State  of  Virginia  either  to  pa^'  those  certificates  or  to  see 
that  West  Virginia  pays  them? 

Mr.  Thom:  Xo;  it  is  not  esactly  in  that  form;  but  the  gentleman  from  Albemarle 
(Mr.  Boaz)  has  pointed  oul  to  the  Convention  this  morning  that  there  is  a  part  of  the 
old  debt  of  Virginia  held  by  the  United  States  goYernment  on  which  litigation  against 
the  State  of  Virginia  is  threatened,  and  that  part  is  contained  in  the  West  Virginia 
portion.  Suppose  that  litigation  is  submitted  to  the  Supreme  Court  of  the  United 
States,  the  United  States  Claiming  that  on  the  debt  thus  held  the  State  of  Virginia  is 
still  bound,  and  as  an  evidence  of  that  fact  a  new  Constitution  is  presented  showing 
that  the  State  of  Virginia  still  holds  herself  bound  not  only  for  the  portion  which  has 
been  laid  off  to  her  and  accepted,  but  also  for  that  portion  which  is  proper  to  be  borne 
by  the  State  of  West  Virginia. 

Mr.  Flood:  I  should  like  to  ask  for  information  what  the  obligation  is  in  the  West 
Virginia  certificates?  V^hat  obligation  West  Virginia  assumed  when  she  issued  those 
certificates  and  when  they  were  taken  by  the  holders  of  them. 

Mr.  Thom:  My  understanding  of  that  obligation  is  this:  To  pay  to  the  holders 
of  those  certificates  such  amount  as  the  State  of  Virginia  received  from  West  Virginia. 
That  is  my  understanding. 

Mr.  Flood:    That  is  not  it. 

Mr.  Thom:  I  should  like  to  have  the  gentleman,  who  has  been  familiar  with  the 
legislature  of  the  Sta.te  for  seme  years,  tell  me  exactly  what  is  in  that  certificate.  I 
am  only  stating  it  from  general  knowledge. 

Mr.  Flood:  I  cannot  tell  you  exactly.  I  cannot  recall  it  with  accuracy:  but  my 
idea  is  that  those  certificates  bind  Virginia  to  pay  to  the  certi5cate_  holders  the  entire 
amotmt  of  those  certificates:  or  rather  such  amount  as  they  do  not  receive  from  West 
Vir^nia.  That  State  now  refuses  to  pay  anything,  and  Virginia,  by  Section  22  obli- 
gates herself  in  this  Constitution  to  bring  about  a  settlement  between  the  West  Vir- 
ginia certificate  holders  and  the  State  of  West  Virginia  vrhat  ever  is  ascertained,  upon 
an  accounting,  to  be  due  by  the  State  of  West  Virginia  goes  to  those  certificate 
holders,  and  the  balance  of  it.  is  to  be  paid  by  the  State  of  Virginia',  or  she  must 
repudiate  it. 

^1t.  Thom:  I  do  not  understand  that  my  friend's  information  on  the  subject  is 
correct.  If  it  is.  it  greatly  strengthens  the  necessity  for  a  change  in  this  Constitu- 
tional language.  But  I  shall  argue  it  on  the  basis  that  Virginia  has  not  assumed  as 
to  the  holders  of  the  West  Virginia  certificates  any  obligation  except  that  of  paying 
what  amount  of  money  she  receives  from  West  Virginia.  I  say  I  shall  argue  it  on  that 
basis,  and  I  shall  call  attention  to  the  statement  made  here  by  the  gentleman  from 
Albemarle  this  morning  that  a  part  of  that  debt  still  remains  unsettled  and  in  the 
hands  of  the  United  States;  that  litigation  is  under  consideration  now  by  the  United 
States  against  the  State  of  Virginia  to  enforce  the  payment  of  that  debt. 

In  that  condition  of  affairs,  is  it  wise  for  this  Constitution  to  say  that  there  is 
still  a  public  debt  of  Virginia  for  which  Virginia  is  still  liable,  a  part  of  which  should 
be  laid  off  to  West  Virginia  and  the  balance  borne  by  the  State  of  Virginia?  By  the 
use  to-day  of  the  language  which  was  appropriate  thirty  years  ago,  we  run  the  risk 
of  acknowledging  to-day  that  there  is  a  public  debt  of  the  State  a  part  of  which 
should  be  borne  by  West  Virginia;  in  other  words,  that  the  State  of  Virginia  is  still 
liable  for  the  West  Virginia  portion. 

The  language  I  propose  simply  obviates  that   difficulty.    Instead  of  the  public 


DEBATES  OF  THE  CONSTITUTIOJsTAL  CONVENTION  OF  VIRGINIA. 


debt  of  Virginia  being  left  indefinite  as  it  is  in  the  expression  suggested  by  the  com- 
mittee, the  public  debt  of  Virginia  is  defined  to  be  the  original  public  debt  of  Vir- 
ginia existing  prior  to  the  creation  of  the  State  of  West  Virginia."  Now,  that  is  the 
debt  which  Virginia  is  to  use  its  good  offices  in  trying  to  have  apportioned  between 
the  two  States;  not  any  part  of  the  present  debt  of  Virginia;  not  anything  for  which 
Virginia  is  now  bound;  but  the  original  debt  of  the  State  existing  prior  to  the  crea- 
tion of  the  State  of  West  Virginia,  and  that  is  defined  in  the  amendment  which  I 
suggest  to  the  original  debt  of  Virginia  and  the  subject  matter  about  which  Virginia, 
is  to  use  her  good  offices.  I  go  on,  after  defining  what  it  is  that  Virginia  is  expected 
to  use  her  good  offices  about,  and  provide  that  such  sum  as  shall  be  received  from 
West  Virginia  shall  be  supplied  to  the  payment,  not  of  the  public  debt  of  the  State, 
as  the  committee  states  it,  (again  a  recognition  that  it  is  a  public  debt  of  the  State  of 
Virginia)  but  to  the  payment  of  the  West  Virginia  portion  of  the  original  public  debt 
of  the  State  of  Virginia;  so  as  to  avoid  the  recognition,  again,  that  what  is  laid  off 
to  West  Virginia  is  a  part  of  the  public  debt  of  the  State  of  Virginia.  And  to  guard 
it  further,  I  suggest  that  "  nothing  herein  contained  shall  in  any  way  affect  the  settle- 
ment already  made  by  the  State  of  Virginia  with  its  creditors." 

I  was  in  hopes  that  my  friends,  the  members  of  the  committee,  would  accept  this 
language.  My  purpose  is  that  there  shall  not  be  a  recognition  by  this  Convention  of 
a  different  public  debt  of  Virginia  from  that  which  she  has  assumed  in  her  recent 
settlement;  and  if  you  say  that  what  Virginia  receives  from  West  Virginia  shall  be 
paid  upon  the  public  debt  of  the  State  of  Virginia,  no  lawyer  upon  this  floor  will  deny 
that  that  is  a  recognition  of  the  fact  that  Virginia  is  still  bound  for  a  portion  of  the 
debt,  v/hich  we  have  all  understood  has  been  laid  off  to  West  Virginia.  If  you  say  in 
the  first  part  of  your  provision  that  the  General  Assembly  shall  provide  by  law  for 
adjusting  with  the  State  of  West  Virginia  the  proportion  of  the  pubic  debt  of  Virginia 
proper  to  be  borne  by  the  State  of  Virginia  and  by  the  State  of  Wlest  Virginia,  you 
still  make  a  recognition  tliat  there  is  a  public  debt  of  Virginia,  a  portion  of  which 
should  be  borne  by  West  Virginia.  Now,  are  you  willing  to  do  it?  In  other  words, 
are  you  willing  to  take  a  debt  here,the  only  effect  of  which,  according  to  its  terms, 
is  to  upset  and  disturb  the  settlement  made  between  Virginia  and  her  creditors,  and 
put  into  the  region  of  controversy  and  doubt  again  the  question  whether  Virginia  is 
or  is  not  bound  for  a  proportion  to  be  laid  off  to  West  Virginia? 

Mr.  Cameron:  Has  not  every  step  in  the  settlement  of  the  Virginia  debt  been 
taken  under  the  provision  of  the  Constitution  as  reported  by  the  Committee? 

Mr.  Thom:    Yes,  sir. 

Mr.  Cameron:  Would  the  adoption  of  that  provision,  in  totidem  verbis  by  this 
Convention  add  any  force,  effect  or  meaning  to  that  provision? 

Mr.  Thom:  I  think  so,  and  that  is  the  object  of  getting  at  it.  I  cannot  say  I 
think  so.  I  will  accept  the  suggestion  of  my  friend  here  from  Rockbridge  (Mr.  Ander- 
son) and  say  that  I  fear  so,  for  this  reason.  The  public  debt  of  Virginia  mentioned 
in  the  old  Constitution  was  one  for  which  Virginia  was  bound,  and  when  you  use  the 
same  words  in  the  present  Constitution,  it  may  be  that  the  same  words  will  mean  that 
the  public  debt  of  Virginia  is  one  of  which  she  is  still  bound.  As  suggested  by  the 
gentleman  from  Roanoke  (Mr.  Robertson)  this  Constitution  will  speak  as  of  the  pres- 
ent, and  when  you  speak  of  the  public  debt  in  the  new  Constitution,  you  mean  a 
public  debt  by  which  the  State  of  Virginia  is  still  bound. 

Mr.  Hancock:  I  wish  to  inquire  whether  in  your  opinion  the  State  of  Virginia  is 
not  bound  for  all  of  the  debt  to  those  creditors  who  have  not  accepted  the  terms  con- 
tained in  the  West  Virginia  certificates;  and  is  it  not  true  that  everything  that  Virginia 
may  derive  from  the  State  of  West  Virginia  upon  the  basis  of  those  certificates  must  be 
applied  by  her  in  paying  the  creditors  who  have  accepted  those  certificates.  In  other 
words,  does  not  the  State  of  Virginia  owe  the  whole  debt,  and  that  arrangement  about 
West  Virginia's  portion  of  the  debt  is  an  armngement  simply  binding  upon  those  credi- " 
tors  who  have  accepted  it  or  who  may  hereafter  accept  it. 


DEBATES  or  THE  COXSTITUTTOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2895 


Mr.  Thorn:  My  friend  has  given  upon  this  floor  an  absolute  necessity  of  vrhat  1 
am  now  doing.  He  is  contending  that  Virginia  is  still  bound  for  the  West  Virginia  por- 
tion. That  has  been  negatived  by  the  attitude  of  Virginia  for  the  last  twenty-five  years. 
That  was  the  contention  in  the  days  of  the  readjusters;  and  when  my  friend  finds 
reason  to  arise  upon  this  floor  and  claim  that  Virginia  is  still  liable  for  the  Vest  Vir- 
ginia portion,  I  say  to  hm  that  the  language  of  this  Constitution  as  presented  by  the 
committee  recognized  what  he  states  to  be  the  law  and  is  a  recognition  on  the  part  of 
Virginia  of  a  continuing  liability  for  that  whole  sum. 

Is  this  Constitutional  Convention  ready  to  make  that  admission  of  liability?  Is  it 
ready  to  say  what  my  friend  from  the  county  of  Chesterfield  (Mr.  Hancock)  claims,  that 
Virginia  is  still  liable  for  the  whole  forty-five  millions  of  debt  as  it  existed  prior  to  the 
war? 

Mr.  Hancock:  I  did  not  say  that  Virginia  owed  the  whole  debt  but  I  asked  the 
gentleman  if  he  thought,  as  a  lawyer,  that  the  State  of  Virginia  owed  this  debt  to  the 
original  bond-holders,  those  who  have  not  accepted  the  West  Virginia  certificates,  if  so. 
are  not  such  bond-holders  entitled  to  receive  the  full  amount  of  their  debt  from  the 
State  of  Virginia,  and  must  not  A'irginia  look  to  West  Mrginia  for  the  payment  of  her 
equitable  share  of  such  debt? 

Mr.  Thorn:  Whatever  may  be  the  primeval  right  of  that  proposition,  the  State  of 
Virginia  has  said,  in  a  revolution  of  political  sentiment,  that  equities  have  been  intro- 
duced into  that  question  which  relieve  her  of  that  obligation. 

Whatever  may  be  my  view  and  whatever  was  my  vote  on  the  original  proposition, 
I  am  not  willing  in  this  Convention  to  upset  what  was  done  in  1SS2  and  to  put  upon 
Virginia  an  obligation  for  an  excess  of  what  is  upon  her  to-day,  or  to  do  anything  that 
will  tend  in  that  direction.  My  very  criticism  of  this  language  is  that  there  is  danger 
of  there  lurking  in  it  an  acknowledgment  on  the  part  of  this  Constitutional  Convention 
for  and  on  behalf  of  the  State  of  an  obligation  for  a  part  of  the  debt  which  has  already 
been  laid  off  to  the  State  of  West  Virginia  and  for  which  the  State  of  A'irginia  now 
acknowledges  no  liability  or  responsibility  whatever.  There  can  be  no  doubt  that  when 
you  speak  of  the  public  debt  of  Virginia  proper  to  be  divided  between  A'irginia  and 
West  Virginia,  you  will  claim  it  is  the  public  debt  of  Virginia  still  and  that  she  is  liable 
for  it,  if  she  does  not  get  the  State  of  West  Virginia  to  share  her  part  of  it. 

Mr.  Cameron:  I  will  have  to  put  a  preamble  to  it.  As  to  the  bonds  which  have 
been  surrendered  to  the  State  of  Virginia  for  which  the  holders  have  received  no  evi- 
dences of  indebtedness  in  the  shape  of  bonds  or  certificates  referring  to  the  West  Vir- 
ginia portion.  I  say  to  him  that  the  language  of  this  Constitution  as  presented  by  the 
case  of  the  United  States  government,  referred  to  by  the  gentleman  from  Albemarle. 
They  hold  the  original  bonds  issued  by  the  State  of  Virginia  for  the  whole  amount. 
They  have  never  recognized  as  binding  upon  them  any  settlement  that  has  been  had, 
either  that  of  1871,  1881-1882,  1885-1886.  Now,  holding  the  original  claim  with  its  origi- 
nal expressions  by  bond  have  they  not  the  entire  claim  against  the  State  of  Virginia, 
including  that  portion  which  would  be  set  aside  to  West  Virginia  if  they  accepted  the 
process  through  which  the  majority  of  the  creditors  have  passed? 

Mr.  Thorn:  Let  me  explain.  The  gentleman  from  Petersburg  (Mr.  Cameron)  has  called 
attention  to  the  holders  of  the  original  bonds  of  Virginia  and  is  speaking  of  their  rights 
and  I  suppose  he  is  speaking  of  the  impossibility  of  Virginia  speaking  with  their  rights. 
My  proposition  is  that  the  United  States,  as  the  holder  of  those  original  bonds,  is  ex- 
actly in  the  position  of  the  holders  of  bonds  which  were  afterwards  readjusted  by  Vir- 
ginia under  the  funding  bill  or  under  the  readjuster  movement.  Now.  if  the  policy  of 
the  State  of  Virginia  is  not  to  pay  the  whole  of  that  debt  to  the  United  States,  where 
is  the  wisdom  of  our  recognizing  our  obligation  for  it  in  this  Constitution?  If  the 
United  States  has  no  greater  equities  than  the  individuals  who  surrendered  a  portion 
of  their  debt  in  the  readjustment  of  the  State  debt,  why  should  the  Constitution  give 
them  a  firmer  ground  to  stand  upon  than  they  did  have  under  the  legislation  of  the 


2896  DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

State  and  under  the  offer  to  the  creditors  of  the  State  as  it  is  held  out  to  them  under 
the  act  of  the  Assembly? 

My  desire  is  to  do  nothing  to  weaken  the  position  of  the  State  of  Virginia  which  it 
has  held  for  the  last  twenty  years  in  reference  to  its  public  debt.  I  think  the  language 
here  used,  as  proposed  by  the  committee,  unwittingly  has  the  effect  of  strengthing  the 
position  of  the  holders  of  Virginia's  original  obligation  and  of  weakening  the  position 
of  the  State  of  Virginia  in  respect  thereto. 

Mr.  Turnbull:  As  the  State  debt  of  Virginia  has  been  settled,  what  use  is  this 
section  in  here  at  all? 

Mr.  Thorn:  I  do  not  see  that  it  is  of  any  use,  but  it  is  in,  and  I  want  to  amend  it 
before  you  strike  it  out,  because  after  you  strike  it  out  I  will  have  no  opportunity  of 
amending  it. 

I  desire  to  call  the  attention  of  gentlemen  here  to  exactly  what  changes  I  propose. 
There  are  three.  The  first  defect  in  this  report  is  to  define  the  public  debt  of  the  State 
of  Virginia  as  something  which  the  State  does  not  now  acknowledge,  because  it  has 
defined  it  as  something  which  West  Virginia  ought  to  pay  in  part,  and  therefore  says 
that  Virginia  is  liable  for  it.  I  propose  to  define  the  subject  matter  about  Y/hich  Vir- 
ginia shall  use  her  good  offices  as  the  original  public  debt  of  Virginia,  existing  prior  to 
the  creation  of  the  State  of  West  Virginia.  That  relieves  the  uncertainty  about  what 
the  subject  matter  is  and  puts  it  exactly  where  it  ought  to  be.  In  addition  to  that  I 
provide  that  the  proportion  of  that  debt,  the  only  thing  which  Virginia  is  to  adjust  v/ith 
the  State  of  West  Virginia,  is  the  amount  of  that  original  debt  which  Virginia  is  to  pay. 

At  this  point  Mr.  Turnbull  took  the  chair  as  presiding  officer. 

On  the  next  page,  where  the  public  debt  of  West  Virginia  is  referred  to  as  some- 
thing which  West  Virginia  does  not  now  acknowledge,  I  again  define  that  to  be  the  West 
Virginia  portion  of  the  original  public  debt  of  Virginia,  and  to  make  sure  that  the  rights 
of  the  present  bondholders  are  not  interfered  with,  I  provide  that  "  nothing  herein  con- 
tained shall  in  any  way  affect  the  settlement  already  made  by  Virginia  with  her 
creditors." 

That  is  the  purpose  of  my  amendment.  I  desire  to  amend  the  section  before  the 
motion  to  strike  out  is  made,  because  after  that  motion  is  made,  if  it  fails,  you  can  no 
longer  amend  it.  I  shall  have  no  objection  to  striking  it  all  out  after  it  is  amended, 
but  I  consider  it  extremely  dangerous  to  leave  it  in  its  present  form,  and  I  predict  as  a 
lawyer,  that  if  the  United  States  sues  the  State  of  Virginia  on  the  bonds  it  now  holds 
this  language  of  your  new  Constitution  will  be  used  as  evidence  as  to  what  Virginia  still 
continues  to  acknowledge. 

Mr.  Meredith:  What  is  the  difference,  in  speaking  of  the  debt,  of  adjusting  the 
debt  and  of  adjusting  with  West  Virginia  the  proportion  of  the  original  debt?  Do 
you  not  recognize  the  debt  just  as  much  one  way  as  you  do  the  other? 

Mr.  Thom:    No,  sir. 

Mr.  Meredith:    Do  you  mean  to  repudiate  it? 

Mr.  Thom:  I  mean  to  take  the  position  which  Virginia  has  taken,  whatever  that 
may  be,  of  not  acknowledging  in  this  Constitution  any  more  debt  than  the  people  of 
Virginia  have  acknowledged  by  their  vote.  Call  it  repudiation,  call  it  readjustment, 
call  it  what  you  will,  I  think  if  the  people  of  Virginia  ever  had  an  idea  that  we  Vt^uld 
come  in  this  hall  under  a  call  for  a  new  Constitution  and  acknowldege  a  greater 
liability  on  the  State  than  that  which  they  established  in  1882,  they  would  have  pre- 
vented our  entering  here  by  force  of  arms,  and  I  am  unwilling  to  do  it. 

Mr.  Cameron:  Mr.  President,  it  is  not  a  proper  expression  of  my  feelings  to 
say  that  I  wish  to  speak  on  this  subject,  but  after  the  forcible  speech  made  by  the 
accurate  and  learned  lawyer  from  Norfolk  (Mr.  Thom),  I  think  it  right  that  something, 
at  least,  should  be  said  by  those  who  hold  a  different  view,  and  who  believe  that  it 
would  be  exceedingly  dangerous  to  alter  the  language  under  which  we  have  proceeded 
in  regard  to  our  public  debt  for  all  these  years. 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  TIEGIXIA.  2897 


I  think,  further,  that  to  rush  to  a  conclusion  of  this  matter  just  sprung  upon  the 
attention  of  this  body,  Y/hen  we  have  not  even  accurate  knowledge  as  to  the  language 
of  any  single  element  entering  into  the  decision  of  this  question,  is  unwise.The  acts 
of  readjustment  are  not  here.  The  acts  of  the  final  settlement  of  188(5-87  are  not  here. 
The  form  of  the  Virginia  certificate  is  not  here;  and  yet  all  those  matters  of  form 
and  substance  enter  definitely  into  any  intelligent  verdict  upon  the  same  issue  raised 
by  the  gentleman  from  Norfolk. 

I  wish  briefly  to  ask  you  to  bear  in  mind  that  there  are  two  classes  of  creditors. 
Beginning  with  the  idea  of  forcible  readjustment,  the  matter  of  settlement  came  finally 
to  be  one  of  friendly  agreement  between  the  State  of  Virginia  and  the  great  body  of 
her  bondholders.  As  to  that  body  who  surrendered  their  bonds  voluntarilj',  they  have 
no  claim  whatever  against  the  State  of  Virginia,  except  such  as  is  expressed  in  what- 
ever bond  or  certificate,  or  both.,  they  received  in  return.  As  to  that  class  of  bond- 
holders holding  the  new  bonds  of  Virginia,  having  surrendered  every  other  evidence 
of  claim  against  the  State,  and  having  done  so  voluntarily,  there  can  be  no  question 
that  nothing  we  do  can  add  to  the  legal  rights  of  those  people  unless,  by  an  unfor- 
tunate error  in  changing  the  language  of  this  Constitution,  we  would  present  them 
with  rights  which  they  have  not  had  heretofore,  and  have  not  now. 

I  repeat  that  every  step  in  the  settlement  of  this  debt,  so  far  as  it  has  gone,  has 
been  taken  under  the  constitutional  language  contained  in  the  Underwood  Constitution. 
All  the  litigation  against  this  settlement  in  its  various  stages  has  been  based  upon 
and  has  taken  consideration  of  the  language  of  that  provision.  Hardly  can  there  be 
anything  new  raised  along  the  line  of  the  rights  of  the  creditors  under  the  provision 
of  the  Underwood  Constitution,  and  certainly  no  lawyer  on  this  floor  will  claim  that 
anything  we  say  can  take  away  any  legal  right  that  now  belongs  to  any  class  of  the 
creditors;  but  we  may,  an  ill-matured  change,  give  to  all  classes  of  them  some 
rights  which  they  do  not  now  possess. 

I  said  there  are  two  elements,  two  classes  of  these  creditors.  I  sa.y  as  a  matter 
of  law  that  the  status  of  an  original  bondholder  who  has  not  surrendered  his  bond  or 
accepted  the  terms  of  a  settement,  is  precisely  what  it  was  prior  to  the  enactment  of 
the  first  act  of  readjustment.  The  United  States  Government  for  instance,  holds  all 
the  original  claim  against  Virginia  that  it  ever  did,  evidenced  by  the  bond  or  bonds 
which  were  given  it  when  that  debt  was  incurred,  and  nothing — I  speak  from  a  legal 
standpoint — that  we  have  dene  since  has  affected  that  claim  and  nothing  can  affect  it 
unless  they  should  come  forward  and  conform  to  the  plan  of  settlement  which  the 
State  has  adopted  and  which  has  been  concurred  in  by  the  great  majority  of  her  credi- 
tors. 

I  mention  this  to  show  that  we  cannot  give  any  new  rights;  that  no  new  rights 
can  accrue  to  that  class  of  our  creditors  by  retaining  the  language  we  have  here. 

Now,  as  to  the  other  class,  the  man  who  is  a  creditor  under  the  bonded  debt  of 
the  State;  who  holds  the  bond  or  other  evidence  of  debt.  The  man  who  has  come 
forward  and  made  voluntary  surrender  of  his  evidence  of  debt  and  taken  something 
else  in  its  place  has  no  further  claim  against  the  State  than  vras  given  him  under 
this  language  in  the  present  Constitution,  the  continuance  of  which  is  recommended 
by  the  Finance  Committee. 

Now,  gentlemen,  I  claim  that  we  run  no  risk  as  to  that  class  in  retaining  this 
language,  and  that  as  to  the  other  class  nothing  that  we  say  here  could  affect  in  one 
way  or  the  other  their  legal  rights  already-  matured  and  resting  upon  foundations 
which  we  cannot  disturb. 

Mr.  Flood:  Does  the  language  of  the  setUement  of  1871  and  of  the  certificates 
require  Virginia  to  compel  a  settlement  on  the  part  of  Vest  Virginia  of  the  part  of 
the  debt  that  was  set  aside  as  West  Virginia's  equitable  share? 

Mr.  Boaz:  If  the  gentleman  will  allow  me  to  interrupt  him  a  moment,  I  have 
here  the  very  language  in  which  those  certificates  are  couched. 


2898 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


This  certifies  that  dollars  are  due  to    or  his  associates,  being 

one-third  of  bond  No.  — ,  surrendered  under  the  act  approved  March  30,  1871,  and  payment 
of  said  one-third,  with  interest,  will  be  provided  for  in  accordance  with  such  settlement 
as  shall  hereafter  be  had  between  the  States  of  Virginia  and  West  Virginia  in  regard 
to  the  public  debt  of  Virginia  at  the  time  of  its  dismemberment;  and  Virginia  holds 
said  bonds,  so  far  as  unfunded,  in  trust  for  the  holder  thereof  or  his  assigns. 

Mr.  Flood:  The  question  I  want  to  ask  the  gentleman  is  this:  Does  not  this 
certificate,  under  the  act  of  1871,  bind  Virginia  to  bring  about  a  settlement  between 
West  Virginia  and  the  holders  of  these  certificates? 

Mr.  Cameron:  It  binds  Virginia  to  pay  to  certain  persons  holding  these  certifi- 
cates certain  moneys  recovered  when  the  settlement  has  been  made  by  West  Virginia. 

Mr.  Flood:  TTo{e  gentleman  says  '"certain  moneys  recovered."  How  are  you 
going  to  recover  those  moneys? 

Mr.  Cameron:  Exactly.  The  State  of  Virginia  could  not  enter  into  a  compact 
to  compel  West  Virginia,  because  there  was  no  way  for  her  to  do  it,  and  there  is  no 
way. 

Mr.  Flood:  Why  could  not  Virginia  sue  West  Virginia  in  the  Supreme  Court 
of  the  United  States  and  force  a  settlement? 

Mr.  Cameron:    There  is  no  such  compact  here,  as  the  gentleman  will  admit. 

Mr.  Ayers:  If  the  gentleman  from  Petersburg  will  indulge  me,  I  will  read  the 
section.  The  funding  bill  provides,  first,  that  two-thirds  of  the  interest  and  principal 
of  the  debt  shall  be  funded  in  new  bonds  and  then: 

Upon  the  surrender  of  the  old  and  the  acceptance  of  the  new  bonds  for  two-thirds 
of  the  amount  due,  as  provided  in  the  last  preceeding  section,  there  shall  be  issued  to 
the  owner  or  owners  of  the  other  one-third  the  amount  due  upon  the  old  bonds,  stock  or 
certificates  of  indebtedness  so  surrendered,  a  certificate  bearing  the  same  date  as  the 
new  bond  setting  forth  the  amount  of  the  bond  which  is  not  funded,  as  provided  in  the 
last  preceding  section,  and  that  payment  of  said  bond,  with  interest  thereon  at  the  rate 
prescribed  in  the  bonds  surrendered,  will  be  provided  for  in  accordance  with  such 
settlement  as  shall  hereafter  be  had  between  the  States,  of  Virginia  and  West  Virginia 
in  regard  to  the  public  debt  of  Virginia  existing  at  the  time  of  its  dismemberment,  and 
that  the  State  of  Virginia  holds  said  bond,  so  far  as  unfunded,  in  trust  for  the  holder  or 
his  assigns;  and  provided,  further,  that  until  such  final  settlement  with  West  Virginia, 
there  shall  be  paid  upon  what  are  known  as  funding  bonds,  etc. 

Mr.  Flood :  The  gentleman  says  "  upon  a  settlement."  That  would  take  place  if 
West  Virginia  refused  to  pay  any  part  of  this  debt  by  the  State  of  Virginia  suing 
West  Virginia  in  the  Supreme  Court  of  the  United  States.    Is  not  that  a  fact? 

Mr.  Cameron:    That  could  be  done. 

Mr.  Flood:  Now,  is  not  Virginia,  if  we  put  this  matter  in  the  Constitution  under 
an  obligation  to  force  a  settlement,  either  a  friendly  settlement,  or  a  settlement  by  a 
suit? 

Mr.  Cameron:  I  think  Virginia  is  under  a  moral  obligation  to  do  what  she  can 
to  make  West  Virginia  pay  something  to  these  people  who  hold  these  certificates. 
I  think  Virginia  should  take  whatever  legal  remedies  she  has  against  the  State  of 
West  Virginia  in  their  behalf,  but  I  also  say,  which  is  the  point  of  the  matter,  that 
when  these  certificates  were  accepted  in  lieu  of  one-third  of  the  face  of  the  original 
bond,  the  acceptor  took  only  that  which  is  expressed  on  the  face,  and  nothing  more, 
and  that  carries  with  it  no  obligation  of  the  State  of  Virginia  to  pay  one  cent  to  the 
certificate  holder,  unless  or  until  a  settlement  has  been  had  with  the  State  of  West 
Virginia;  and  then  he  is  to  be  paid  what  is  determined  by  that  settlement. 

I  go  the  length,  for  instance,  of  saying  that  under  the  language  of  that  certificate, 
even  if  the  State  of  Virginia  were  to  bring  suit  against  the  State  of  West  Virginia, 
and  that  suit  was  cast  by  the  Supreme  Court  of  the  United  States,  that  then  and  still 
no  payment  could  be  demanded  by  the  holders  of  the  certificates,  if  It  was  said  that 
the  suit  for  that  amount  was  not  proper,  if  the  Supreme  Court  held  it  was  not  able  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  2899 

ascertain  on  the  evidence  before  it  that  the  amount  sued  for  by  the  State  of  Virginia 
was  equitable  as  her  shai^. 

Mr.  Flood:  L-et  me  ask  the  gentleman  this  question.  I  ask  it  because  I  Imow  he 
is  better  informed  about  it,  probably,  than  any  one  else  in  the  hall.  Suppose  Virginia 
should  sue  West  Virginia  for  the  $13,000,000  bearing  interest  from  the  date  of  these 
certificates,  and  the  Supreme  Court  of  the  United  States  should  hold  that  the  conten- 
tion of  West  Virginia,  to-wit,  that  West  Virginia  was  only  liable  for  that  portion  of 
the  public  debt  which  was  expended  in  her  borders,  together  with  certain  expenses 
of  government,  less  the  amount  she  paid  in  taxes  after  the  year  1821,  amounting,  as 
her  commissioners  have  ascertained,  to  two  millions  dollars  instead  of  fifteen  million 
dollars,  was  correct,  would  not  the  court  enter  an  order  or  decree  against  the  State 
of  Virginia  for  the  balance  of  the  thirteen  million  dollars  without  interest? 

Mr.  Cameron:  I  think  not,  when  the  proceeding  originated  under  a  certificate 
and  that  certificate  was  accepted  voluntarily  by  a  bondholder  in  consideration  of 
such  facts,  and  one  of  those  facts  was  that  the  State  of  Virginia  would  issue  to  him 
its  own  bonds  for  two-thirds  of  the  face  amount  of  the  original  bond,  and  accumulated 
compound  interest  due,  on  the  contrary,  would  take  from  her  a  certificate  framed  as 
has  just  been  read  to  you,  relieving  Virginia  of  any  responsibility  or  accountability 
until  a  settlement  had  been  had  with  West  Virginia. 

Mr.  Flood:  Until  a  settlement  has  been  had;  but  it  does  not  relieve  it  beyond 
the  time  that  a  settlement  has  been  had,  and  if  that  settlement  is  had  in  the  Supreme 
Court  of  the  United  States,  and  it  is  ascertained  that  West  Virginia  does  not  owe 
this  thirteen  million  dollars,  but  only  a  small  portion  of  it.  then  the  residue  of  it  is 
due  by  the  State  of  Virginia. 

Mr.  Cameron:    It  might  be. 

Mr.  Flood:  If  that  is  the  case,  does  not  the  gentleman  think  it  is  dangerous  to 
incorporate  any  language  in  reference  to  this  matter  in  our  new  Constitution? 

Mr.  Cameron:  I  think  the  best  answer  to  the  gentleman  is  that  we  have  been 
living  all  these  years  under  this  provision,  and  all  the  litigation  had  has  been  based 
upon  this  language.  Nothing  of  the  kind  has  developed.  You  have  just  been  told  that 
the  holders  of  a  great  majority  of  these  fifteen  million  dollars  of  certificates  have 
already  agreed  formally,  authoritatively,  with  the  commissioners  of  the  General  As- 
sembly that  if  a  suit  be  brought  to  compel  West  Virginia,  they  will  only  claim  from 
the  State  of  Virginia  what  can  be  recovered  from  West  Virginia. 

Mr.  Flood:  That  is  undoubtedly  true,  but  suppose  Virginia  does  not  bring  the 
suit,  as  she  has  not  done,  and  as  her  commissioners  have  not  done,  and  they  make 
an  arrangement  with  the  State  of  West  Virginia  by  which  West  Virginia  sues  Vir- 
ginia in  the  Federal  courts  for  a  settlement  of  this  matter,  or  suppose  the  United 
States  should  sue  Virginia  on  the  bonds  she  holds  and  the  question  of  West  Vir- 
ginia's share  of  the  debt  was  brought  into  court  does  not  the  gentleman  think  Vir- 
gimla  might  be  liable  for  the  excess  over  the  amount  that  the  court  ascertained  was 
due  by  West  Virginia  and  that  this  provision  would  help  fasten  that  liability  upon  her. 

Mr.  Cameron:  I  think  morally  we  might  be  held  accountable  for  not  using  due 
promptness  in  exercising  the  remedy  we  hold  in  our  hands  for  the  benefit  of  these 
people, 

Mr.  Flood:  We  would  have  to  pay  it  or  repudiate  it.  We  do  not  want  to  have  to 
do  either. 

Mr.  Cameron:  But  if  we  are  going  outside  of  the  direct  issues  here  into  collateral 
matters,  let  us  inquire  into  the  position  of  the  United  States  Government. 

The  United  States  Government  cuts  off  West  Virginia  from  us  by  what  Governor 
Wise  declared  to  be  a  Caesarian  operation  and  provided,  as  a  part  of  the  legality  of 
the  existence  of  that  new  Commonwealth,  that  she  should  assume  and  pay  certain 
portions  of  this  debt.  Now,  when  the  United  States  Government,  at  any  future  time, 
appears  as  a  claimant  for  the  whole  face  of  a  bond  or  bonds  that  she  holds  against 


2900 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


this  State,  and  comes  -with  the  force  of  her  bench  and  with  the  sword  thrown  into  the 
balance,  to  exact  not  only  the  pound  of  flesh  but  the  blood  that  flows  with  it,  why 
should  we  not  say  to  her  "You  did  this  thing.  You  made  this  State;  you  left  us  with 
this  new  responsibility;  you  ordered  them  to  do  something  in  order  to  show  their 
worthiness  of  statehood  and  twenty  years  have  passed  and  you  have  not  used  your 
authority  in  one  degree  to  have  equity  done  to  those  States  which  you  have  dismem- 
bered." 

Mr.  William  A.  Anderson:  I  will  remind  him  that  Virginia,  in  the  event  of  a  suit 
by  the  United  States  Government  against  this  State  upon  the  million  dollars  of  bonds 
of  the  old  State  of  Virginia,  which  that  government  holds  as  a  part  of  the  Indian  fund — 

Mr.  Cameron:    Yes;  I  know  of  that. 

Mr.  William  A.  Anderson:  Against  any  such  suit  Virginia  would  have  a  much 
more  efiicient  and  satisfactory  defense  even  than  that  indicated  by  the  gentleman  from 
Petersburg.  The  United  States  Government  owes  the  State  of  Virginia  from  a  million 
to  twelve  hundred  thousand  dollars,  with  interest  now  for  more  than  ninety  years,  or 
about  ninety  years,  on  account  of  contributions  made  by  the  State  of  Virginia  for  the 
military  expenses  of  the  United  States  Government  in  the  war  of  1812,  and  upon  other 
accounts,  and  that  sum  with  interest  would  amount  to  far  more  than  any  claim  that 
the  United  States  Government  can  ever  have  against  the  State  of  Virginia  on  account 
of  this  debt. 

Mr.  Cameron:  I  will  say  to  the  gentleman  from  Rockbridge  (Mr,  Anderson)  that 
I  am  familiar  with  those  facts,  and  I  simply  alluded  to  this  as  collateral  to  and  bearing 
on  this  subject. 

Mr.  William  A,  Anderson:  If  the  gentleman  will  excuse  me,  I  will  mention  another 
fact,  that  within  the  last  few  days  an  act  has  passed  Congress  providing  for  the  adjust- 
ment of  the  debt  due  by  the  United  States  government  to  the  State  of  Virginia  on 
account  of  the  war  of  1812  and  on  other  accounts,  and  the  set-off  against  thos^  demands 
would  be  the  bonds  of  the  State  of  Virginia  held  by  the  United  States  government;  so 
that  I  hope  any  question  on  account  of  those  bonds  will  be  eliminated  in  the  course  of 
the  next  twelve  months. 

Mr.  Cameron:  I  simply  wish  to  add  to  what  has  been  said  by  the  gentleman  from 
Appomattox  (Mr.  Flood)  that  in  the  course  of  this  long  debt  settlement,  while  the 
question  of  West  Virginia's  indebtedness  was  never  directly  considered  by  the  Supreme 
Court  of  the  United  States,  it  did  express  the  opinion,  in  treating  of  one  of  the  coupon 
killers,  that  one-third  was  not  an  excessive  or  inequitable  amount  for  Virginia  to  have 
set  aside  for  the  State  of  West  Virginia.  I  will  also  say,  to  quiet  the  apprehensions  of 
those  who  fear  the  compulsion  of  us  by  the  United  States  government  in  regard  to  any 
portion  of  this  debt,  that  the  Supreme  Court  of  the  United  States  declared  repeatedly, 
positively,  that  it  had  no  power  to  enforce  its  judgments  against  the  State. 

Now,  gentlemen,  I  will  not  tax  your  patience  further.  I  only  wish  to  say  that  I 
v/ould  a  great  deal  rather  see  this  section  stricken  out  than,  with  the  amount  of  con- 
sideration we  have  been  able  to  give  it,  to  see  this  language  changed  from  that  under 
which  every  step  of  the  operations  of  our  dealing  with  the  debt  has  occurred. 

Mr.  Flood:  Mr.  President,  I  move  that  this  matter  be  passed  by  for  the  present. 
It  is  a  very  serious  matter  and  I  do  not  think  the  Convention  has  information  enough 
to  decide  it  now.  Members  of  the  Convention,  within  the  course  of  two  or  three 
hours,  can  get  hold  of  the  facts  in  connection  with  this  matter,  and  I  move  that  it  be 
passed  by,  certainly  until  this  afternoon. 

Mr.  Carter:  I  suggest  to  the  gentlemen  that  it  is  within  a  fev^  minutes  of  adjourn- 
ing time,  and  you  might  go  on  with  the  discussion  until  then,  and  it  will  then  pass  it- 
self by. 

Mr.  Thorn:  Mr.  President,  I  have  changed  my  amendment  slightly  in  view  of  the 
Vvest  Virginia  certiflcate,  the  form  of  which  I  hold  in  my  hand,  and  I  think  those  cer- 
tificates demonstrate  the  absolute  necessity  of  such  a  change  as  is  here  proposed.  I 


DEBATES  OF  THE  COIs"STITUTIONAL  CONVENTION  OF  VIRGINIA.  2901 

hold  Iieie  a  form  of  the  certificate  issued  under  the  settlement  of  1871,  and  also  the 
form  of  the  certificate  issued  under  the  Riddleberger  settlement.  The  form  of  a  certi- 
ficate Issued  in  1871  defines  the  public  debt  with  which  it  was  dealing  as  "  the  public 
debt  of  the  State  of  Virginia  existing  at  the  time  of  its  dismemberment."  If  those 
v/ords  were  appropriate  in  1871,  when  there  has  been  no  change  in  the  public  debt, 
how  much  more  appropriate  do  they  become  when  the  public  debt  has  infinitely  changed 
and  an  entirely  new  public  debt  exists  to-day.  The  effect  of  this  provision  of  the  cer- 
tificate of  1871  was  to  still  retain  the  liability  of  Virginia  for  the  West  Virginia  propor- 
tion, except  in  so  far  as  West  Virginia  made  a  payment. 

Now,  when  the  Riddleberger  settlement  came,  Virginia  was  no  longer  willing  to 
retain  that  secondary  obligation,  but  added  the  words  that  what  it  received  from  West 
Virginia  was  to  be  accounted  for  by  the  State  of  West  Virginia  without  recourse  upon 
this  Commonwealth,  so  that  I  have  changed  that  portion  of  my  amendm.ent  to  read: 

But  no  recourse  shall  be  had  against  the  State  of  Virginia  for  such  proportion  and 
nothing  herein  contained  shall  in  any  way  affect  the  settlement  already  made  by  Vir- 
ginia with  her  creditors. 

Mr.  Ayers:  Mr.  President,  I  do  not  desire  to  detain  the  committee  with  any 
lengthy  discussion  of  this  question,  but  I  do  believe  that  the  language  which  provided 
for  the  settlement  with  the  bondholders,  setting  apart  to  West  Virginia  the  one-third, 
should  not  be  longer  continued  in  the  Constitution.  I  believe  the  amendment  offered 
hy  the  gentleman  from  Norfolk  (Mr.  Thom)  ought  to  be  adopted  if  the  language  is 
left  there;  but  I  believe  the  provision  ought  to  be  stricken  out  altogether. 

This  is  really  to-day  a  practical  question,  when  you  look  at  it  from  a  business 
standpoint.  These  certificates  are  not  held  by  the  original  holders,  but  they  were 
acquired  at  a  value  that  amounted  to  a  bagatelle  compared  to  their  par  value.  The 
General  Assembly  of  Virginia — I  have  not  the  statute  by  me — ^has  passed  an  act  by 
which  it  provided  that  all  these  certificates  that  have  been  issued  to  be  desposited 
under  an  express  agreement  not  to  hold  the  State  of  Virginia  responsible  for  any 
amount  in  excess  of  v/hat  she  should  recover  from  West  Virginia,  and  authorized  suit 
to  be  brought.  That  is  dealing  with  the  matter  in  a  practical  manner,  and  I  do  not 
believe  we  ought  to  incorporate  in  the  Constitution  any  provision  in  regard  to  it  that 
might  be  construed  into  a  recognition  which  we  do  not  as  a  matter  of  fact  claim  and 
which  business  men  do  not  claim.  If  a,ny  man  to-day  were  to  set  up  such  a  claim  ft 
would  be  a  mere  speculator  seeking  to  make  something,  because  it  is  recognized  by 
all  business  men  that  Virginia  is  only  responsible  for  the  two-thirds  she  has  bonded 
and  agreed  to  pay;  and  all  these  people  recognize  that  Virginia  is  only  responsible 
on  these  certificates  for  the  amount  she  can  recover  against  the  State  of  West  Vir- 
ginia, as  the  General  Assembly  has  so  wisely  provided  that  all  these  certificates  shall 
be  deposited  under  an  absolute  agreement,  taking  away  all  room  for  construction  that 
in  consideration  of  the  State  of  Virginia  bringing  suit  against  the  State  of  West  Vir- 
ginia they  relinquish  any  possible  claim  they  might  have  to  a  recovery  over  against 
Virginia  for  the  amount  paid  by  West  Virginia. 

I  think  there  is  every  reason  why  we  should  put  nothing  in  the  Constitution,  but 
if  we  do  I  believe  the  language  of  the  gentleman  from  Norfolk  will  preclude  any  con- 
struction that  by  incorporating  this  section  in  the  Constitution  we  intend  to  recognize 
the  liability  of  this  State  for  any  other  than  the  two-thirds  assumed  in  this  set- 
tlement. 

Mr.  Meredith:  Mr.  President,  I  wish  to  say  as  one  of  the  members  of  the  com- 
mittee, that,  although  I  have  not  had  a  chance  to  consult  with  the  chairman,  I  shall 
ask  him  to  move  that  this  matter  be  postponed  until  this  afternoon,  and  I  also  wish  to 
request  him  to  give  notice  that  his  committee  will  meet,  if  it  is  agreeable  to  him, 
directly  after  the  recess  is  taken,  for  I  see  very  grave  difficulty  in  adopting  the  lan- 
guage proposed  by  the  gentleman  from  Norfolk,  even  if  we  afterwards  strike  it  out. 


2902 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


AFTERNOON  SESSION. 

Mr.  R.  Walton  Moore:  I  move  that  the  chair  be  now  vacated  until  4  o'clock  this 
afternoon. 

The  motion  was  agreed  to,  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTER  RECESS. 
The  Convention  reassembled  at  the  expiration  of  the  recess. 

The  President:  The  pending  question  is  upon  the  amendment  offered  by  the 
gentleman  from  Norfolk  city  (Mr.  Thom). 

Mr.  Fairfax:  Mr.  President,  in  view  of  the  discussion  had  before  recess  upon 
Section  22,  the  committee  has  thought  proper  to  offer  the  following  suggestion,  which 
they  hope  the  body  will  accept.    I  will  ask  the  Secretary  to  read  the  recommendation. 

The  Secretary  read  as  follows: 

To  the  Convention: 

The  Committee  on  Taxation  and  Finance  recommends  that  iSection  22  of  the  article 
as  heretofore  proposed  be  omitted.  Such  omission  will  not  deprive  the  General  As- 
sembly of  the  power  to  give  ample  protection  to  the  State  as  well  as  to  individuals 
whose  rights  may  be  involved,  and  will  in  no  way  impair  any  moral  or  legal  obligation 
that  may  exist. 

Mr.  Fairfax:  Mr.  President,  the  committee  thinks  it  much  more  desirable  to 
strike  out  the  whole  section  than  to  leave  it  there  with  any  of  the  amendments  pro- 
posed. 

Mr.  Thom:  Mr.  President,  I  do  not  agree  with  the  chairman  of  the  committee 
that  it  is  better  to  leave  this  article  in  its  present  shape  than  to  amend  it.  I  would 
greatly  prefer  to  have  the  section  stricken  out;  and  I  gave  notice  before  recess  that, 
even  if  it  was  amended,  I  should  move  to  strike  it  out.  If  I  can  have  an  understanding, 
as  I  presume  I  can,  that  in  the  event  the  motion  to  strike  out  fails,  I  may  move  to 
reconsider  in  order  to  amend,  I  will  withdraw  the  amendment  for  the  time  being.  If 
the  motion  to  strike  out  prevails,  it  will  accomplish  the  purpose  which  I  have  in  mind, 
which  is  not  to  change  the  present  status  with  reference  to  the  State  debt. 

The  President:  The  question  is  on  the  motion  of  the  chairman  of  the  committee 
to  strike  out  Section  22.  ^ 

The  motion  was  agreed  to. 

Mr.  Fairfax:  I  now  move  that  we  take  up  Section  1  of  the  report  of  the  Committee 
on  Taxation  and  Finance,  for  further  consideration. 

The  President:    That  will  be  done  unless  there  is  objection. 

Section  1  was  read  and  adopted. 

The  President:    The  Secretary  will  read  Section  2. 

Sec.  2.  Except  as  hereinafter  provided,  all  assessments  of  the  value  of  real  estate  and 
tangible  personal  property  shall  be  at  their  fair  market  value,  to  be  ascertained  as  pre- 
scribed by  law.  The  General  Assembly  may  allow  a  lower  rate  of  taxation  to  be  imposed 
for  a  period  of  years  by  a  city  or  town  upon  such  land  as  may  be  added  to  or  taken  into 
the  corporate  limits  of  such  city  or  town  than  is  imposed  on  such  property  with  the  limits 
of  said  city  or  town  at  the  time  such  land  is  added.  Nothing  in  this  Constitution  shall 
prevent  the  General  Assembly,  in  its  discretion  at  any  time  after  the  1st  day  of  January, 
1913,  from  segregating  for  the  purposes  of  taxation,  the  several  kinds  or  classes  of 
property  so  as  to  specify  and  determine  upon  what  subjects  State  taxes,  and  upon  what 
subjects  local  taxes  may  be  levied. 

Mr.  Cameron:    Mr.  President,  I  offer  the  following  amendment. 
Amend  Section  2  as  follows: 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIO^  OE  YIEGIXIA. 


2903 


By  striking  out  the  period  in  line  4,  after  the  word  "  law,"  and  insert  the  words 
"  and  the  rate  of  taxation  on  the  value  so  ascertained  shall  be  equal  and  uniform,  within 
the  territorial  limit  of  the  authority  limiting  the  tax." 

Mr.  President,  I  ask  the  calm  and  impartial  attention  of  the  Convention  for  a  few 
moments,  in  the  consideration  of  the  amendment  which  I  offer  to  feection  2  of  this 
report.  I  do  so  in  the  belief  that  it  is  not  inconsistent  with  any  purpose  which  the 
advocates  of  this  report,  as  a  whole,  have  advocated  upon  this  floor.  If  I  thought  it 
militated  against  the  accomplishment  of  those  objects,  in  favor  of  which  the  majority 
of  this  body  has  so  positively  announced  itself,  I  should  not  offer  the  amendment. 
But,  believing  that  it  is  not  inconsistent  with  any  of  those  objects,  and  that  it  does  not 
conflict  with  any  purpose  as  to  which  this  committee  has  taken  this  hody  into  their 
confidence,  I  shall  trespass  on  your  time  long  enough  to  explain  this  amendment,  and 
give  a  few  of  the  reasons  which  constrain  me  to  lay  it  before  you. 

Section  2  provides  for  the  assessment  of  "  all  real  estate  and  tangible  personal 
property  at  its  fair  market  value."  Here  I  would  pause  to  ask  what  is  the  reason  for 
ascertaining  the  fair  market  value  of  these  classes  of  property.  If  it  is  intended  not 
to  put  an  equal  rate  of  taxation  upon  them  after  this  value  shall  have  been  so  ascer- 
tained? The  ascertainment  of  this  value  simply  means,  when  put  into  other  words, 
the  expression  of  the  value  in  hundreds  or  thousands  of  dollars.  To  repeat  what  I  said 
on  a  former  occasion,  when  property  can  be  reached  under  the  ad  valorem  system,  and 
the  value  has  been  ascertained  and  expressed  in  hundreds  of  dollars,  one  $100  cannot  be 
worth  more  than  another  SlOO,  and,  that  being  so,  should  bear  no  different  burden. 

Authorities  have  been  quoted  here  with  which,  I  may  say  without  affectation,  I 
have  a  long  acquaintance,  and  whose  conclusions  I  do  not  at  all  dispute.  But  it  is 
important  to  get  at  the  rationale  of  financial  theory,  just  as  it  is  important  for  lawyers 
and  courts  to  get  at  the  rationale  of  the  law.  There  never  has  existed  but  one  reason 
for  the  departure  from  the  time  honored  doctrine  of  equality  of  rate,  and  that  is  that 
commercial  and  industrial  conditions  in  the  world  have  so  changed  that,  if  you  apply 
the  old  rule  to  all  conditions,  you  get  inequality  of  burden,  instead  of  equality  of  burden. 
That  is  the  theorj-  and  doctrine  of  Wells,  of  Ricardo,  and  of  other  writers  upon  this 
subject.  Undoubtedly,  when  you  cannot  reach  the  value  of  any  class  of  property  by 
the  ad  valorem  system,  there  must  necessarily  be.  in  order  to  obtain  fair  results  in 
taxation,  applied  to  such  classes  of  property  a  system  of  taxation  which  will  have  arbi- 
trary features.  So,  as  we  all  know,  for  a  long  time  under  our  system  various  kinds  of 
business  in  our  Commonwealth  have  been  taxed  by  licenses  instead  of  under  the  ad 
valorem  system.  As  industrial  enterprises  and  public  transportation  lines  have  grown 
up,  it  has  been  found  difficult  to  arrive  at  equality  of  burden  by  any  system  of  valuation 
yet  discovered,  and  therefore  it  has  been  felt,  as  this  body  has  concluded,  that  in  taxing 
them  you  must  adopt  a  system  more  or  less  arbitrary.  But  your  hope  and  your  purpose 
must  be,  hr  the  application  of  the  principle  you  have  declared  and  which  has  been  main- 
tained by  this  Convention,  to  come  as  closely  as  possible  to  what  would  have  been  the 
result  if  you  could  have  taxed  that  property  under  the  ad  valorem  system. 

Now,  having  accomplished  all  that  was  set  out  to  be  accomplished  by  the  commit- 
tee and  the  advocates  of  this  measure — and  I  say  here  that  I  have  no  objection  to  the 
result  reached — having  provided  that  the  commercial  business  interests  of  the  Com- 
monwealth should  be  reached  by  the  license  system,  what  else  remains  that  cannot 
be  reached  under  the  plain  old  rule  of  equity  and  honesty,  which  is  as  old  as  self- 
government,  as  old  as  representative  government?  When  you  get  to  property  which 
can  be  valued,  which  can  be  reached  under  the  ad  valorem  system,  what  remains  to 
be  done,  except  to  apply  an  equal  and  uniform  rate  of  taxation.  Now,  mark  you,  in 
offering  this  amendment,  I  have  confined  its  operation  altogether  to  those  classes  as 
to  which  the  committee  has  recommended  that  the  assessment  should  be  at  their  fair 
market  value.  Provision  is  made  for  everything  else,  even  as  to  property  lying  under 
the  surface  of  the  earth.    The  committee  has,  in  another  section,  provided  that  shall 


2904  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

be  assessed  by  a  different  method.  Having  arrived  at  the  value  of  the  real  estate  and 
the  tangible  personal  property  by  assessment,  at  their  fair  market  value,  there  is  no 
other  honest  way,  there  is  no  other  reasonable  way,  there  is  no  other  wise  way 
of  taxing  it  except  by  an  equal  and  uniform  rate.  Turn  to  Section  9,  and  you  will 
find  that  the  gentlfemen  who  oppose  my  views  have,  so  far  as  this  report  goes,  left 
themselves  little  ground  upon  which  to  antagonize  me.  It  is  provided,  beginning  in 
line  11,  that  "such  property  shall  be  taxed  for  State  and  for  county,  city,  town  and 
district  purposes  in  the  same  manner  as  now  authorized  by  law." 

That  property  which  it  has  already  been  provided  is  to  be  assessed  at  its  fair 
market  value,  shall,  even  if  it  belongs  to  railway  corporations  be  taxed  "in  the  same 
manner  as  authorized  by  law;"  and  that  same  rate  of  taxation  as  may  be  imposed  by 
them,  respectively,  from  time  to  time,  upon  the  real  estate  and  tangible  personal  prop- 
erty, of  natural  persons.  When  this  amendment  is  confined  in  its  application  to  real 
estate  to  tangible  personal  property,  is  confined  in  its  application  to  these  two  classes  of 
property  as  to  which  the  committee  has  provided  that  the  assessment  shall  be  at  the  fair 
market  value,  what  reason,  in  the  name  of  the  rights  and  interests  of  the  masses  of  the 
people  of  Virginia  who  own  the  real  estate  and  the  tangible  personal  property,  can 
we  advance  why  one  hundred  dollars  over  here  should  be  taxed  at  40  cents,  and  one 
hundred  dollars  yonder  should  be  taxed  at  20  cents.  I  said,  in  my  argument  before 
the  Committee  of  the  Whole,  that  I  had  heard  no  reason  advanced  by  the  advocates 
of  this  scheme  why  or  for  what  purpose  this  amendment  should  be  rejected.  Of 
course,  if  there  is  any  reason  which  has  not  been  stated,  it  belongs  to  this  body,  in 
the  decision  of  this  matter,  I  have  heard  but  two  suggestions.  One  was  made  by  the 
gentleman  from  Culpeper,  for  whose  opinion  and  for  whose  political  principles  I  have 
a  high  regard,  to  the  effect  that,  in  theory,  I  seemed  to  be  right,  but  that  he  shrank 
from  restricting  the  legislative  powers  in  regard  to  taxation;  and  I  said  to  him,  "If 
that  be  your  position,  abandon  every  line  of  this  report,  for  wherever  you  have  laid 
down  an  inflexible  line  of  duty,  under  a  mandate  not  to  be  mistaken  and  not  to  be 
violated,  you  have,  to  that  extent,  restricted  the  power  of  the  Legislature  on  the  ques- 
tion of  taxation. 

Another  gentleman,  for  whose  personal  worth  and  for  whose  mental  ability  I  have 
equal  admiration,  has  suggested  to  me  that  perhaps  at  some  future  d^y  it  might  seem 
wise  to  the  Legislature  or  other  taxing  authority  to  take,  for  instance,  the  farming 
land  of  the  State,  and  to  say  in  regard  to  it  that  where  a  mortgage  exists  upon  a  piece 
of  property  in  the  hands  of  a  farmer,  it  shall  pay  one  rate  of  taxation  on  that  portion 
of  the  property  which  lies  under  the  equity  of  redemption  and  another  rate  of  taxa- 
tion on  the  residue.  As  to  that,  I  say  that  unless  the  doctrine  is  applied  to  every 
class  of  real  estate  in  the  Commonwealth,  unless  you  decided  that  every  piece  of 
property  that  is  mortgaged  shall  be  taxed  according  to  the  same  principle,  you  would 
be  committing  spoliation,  under  the  guise  of  law,  of  those  who  are  not  included  in 
the  allowance.  The  practical  difficulty  against  your  making  equal  application  of  such 
a  rule  would  be  that  when  you  came  to  tax  the  property  of  railroads,  if  you  made 
allowance  for  the  bonded  debt,  which  is  the  mortgage  on  that  property,  you  would 
have  nothing  left  to  tax. 

I  do  not  wish,  Mr.  President,  to  detain  you.  I  wish  to  lay  down,  in  the  first  place, 
the  proposition  that  what  I  propose  does  not  militate  against  co-operation  with  every- 
thing that  this  committee  has  provided  for.  Secondly,  I  lay  down,  as  the  result  of 
my  observation  and  judgment,  that  no  writer  on  this  subject  deniei*  the  proposition 
that  where  the  value  of  property  can  be  reached,  equitably  and  fairly  under  the  ad 
valorem  system,  then  equality  of  the  rate  of  taxation  should  apply.  The  only  reason 
this  principle  has  ever  been  departed  from  is  because  experience  shows  that  under 
conditions  there  are  numerous  classes  of  property  the  value  of  which  cannot  be  so 
reached.  Perhaps  I  show  unwonted  regard  for  things  that  have  been  and  needlessly 
occupy  your  time  in  the  hope  of  saving  something  of  the  past  from  the  grasp  of  revolu- 
tion and  empiricism.    When  I  say  empiricism,  I  mean  it  in  no  invidious  sense.  Em- 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXVEXTIOX  OE  VIEGIXIA. 


2905 


piricism  is  that  noble  spirit  vrhich  has  done  more  than  aught  else  for  the  progress  of 
the  world  for  the  last  two  centuries.  It  was  empiricism  which  drove  Columbus  to 
seek  these  shores.  It  is  empiricism  to-day  that  is  driving  on  the  leading  lights  in 
the  world  of  surgery  to  dig  out  from  hidden  nature  those  secrets  which  will  serve  to 
prolong  life  and  to  relieve  pain.  It  is  empiricism  which  is  leading  Marconi  and  Tesla 
to  the  wonderful  developments  in  the  physical  world,  of  which  we  are  experiencing 
the  benefits  and  the  results.  Empiricism  of  the  true  kind  follows  old  principles  to 
new  developments,  and  statesmanship  of  a  high  order  applies  old  principles  to  changed 
conditions.  I  do  not  apologize  if  I  have  taken  up  thus  much  of  your  time  in  making 
an  appeal  that  those  classes  of  property  which  are  held  by  the  great  masses  of  our 
own  Virginia  people,  which  threaten  no  harm  by  their  use  or  occupation  to  any  inter- 
est, should  be  put  beyond  the  possibility  of  discrimination  by  any  power  which  might 
control  our  legislation. 

I  heard  my  friend  the  other  day  allude  to  an  aphorism  of  the  Sa-ge  of  Twickenham, 
the  first  line  of  which  I  do  not  endorse,  but  the  second  of  which,  is  good,  sound  and 
true.  "That  which  is  best  administered  is  best."  There  is  another  aphorism  of  his 
v/hich  ma3'  be  applicable  to  some — 

A  little  learning  is  a  dangerous  thing; 
Drink  deep  or  taste  not  the  Pierian  spring. 

I  shall  not  presume  further  on  the  indulgence  and  good  will,  which  I  knoT.'  I  have,  of 
this  body.  I  was  about  to  sb.j  that,  perhaps,  as  years  are  added  to  me  and  I  drift  along, 
I  have  too  much  reverence  for  what  has  been  and  for  the  past;  but  it  is  well  in  these 
days  of  change,  it  is  well  in  these  days  of  longing  after  the  new  and  searching  after 
strange  gods,  that  some  one  should  cling,  no  matter  how  feebly,  to  the  fervid  wheels 
of  revolution  and  ask  for  one  moment,  that  you  should  pause  and  think  upon  those 
old  first  ancient  faiths,  old  as  the  truths  they  cherish,  and  young  as  the  youngest 
heart  that  holds  them  true.    (Great  applause.) 

Mr.  Meredith:  Mr.  President  and  gentlemen  of  the  Convention,  I  shall  not  attempt 
to  follow  the  line  which  has  been  pursued  by  the  gentleman  from  Petersburg.  I  could 
not  be  as  eloquent  as  he  is  if  I  should  try,  and  I  certainly  would  not  try  to  be  eloquent 
upon  the  subject  of  taxation.  Poetry  and  taxation  do  not  go  well  together.  If  you  are 
going  to  add  up  a  sum  in  arithmetic  the  best  thing  you  can  do  is  to  do  it  quietly  and 
coolly.  I  recognize  the  wonderful  power  that  eloquence  has  upon  a  Virginia  audience; 
but  when  you  come  to  consider  a  serious  question  of  taxation^  I  think  you  will  find  that 
poetry  is  a  little  out  of  place. 

In  the  first  place,  gentlemen,  you  will  recollect  the  fact  that  the  gentleman  who 
now  offers  this  amendment,  has  allowed  Section  1  to  be  adopted  and  yet  that  was  the 
bete  noir  he  had  two  days  ago.  That  was  then  the  horrible  thing  in  his  mind.  That 
was  the  section  that  he  thought  was  going  to  destroy  our  liberty  and  take  away  our 
property  from  us.  He  was  just  as  earnest,  and  just  as  full  of  knowledge,  on  that  sub- 
ject as  he  has  been  on  this;  and  yet  he  has  allowed  that  to  go  unchallenged;  and 
thinks  now  that  all  the  danger  lies  in  the  second  section.  The  reason  for  that  is  this: 
The  first  article  cannot  be  attacked.  It  cannot  be  attacked  upon  principle;  it  cannot 
bo  attacked  upon  experience;  it  cannot  be  attacked  by  citation  from  writers  on  eco- 
nomics; political  writers,  or  tinder  judicial  decision.  Hence  my  friend  abandoned  it. 
The  next  reason  was  that  he  thought  he  could  make  a  direct  attack  upon  this  prin- 
ciple, that  we  announced  in  the  first  section  by  directing  his  amendment  to  real  estate 
and  tangible  personal  property.  This  is  simply  an  effort  to  defeat  in  part,  what  he 
attempted  to  entirely  defeat  by  making  an  amendment  to  the  first  section.  It  is  simplj^ 
a  change  of  place  with  the  hope  that  he  can  succeed  here  although  he  failed  there. 
"What  earthly  difference  does  it  make,  gentlemen,  whether  this  is  put  into  the  second 
section  or  the  first  section.  The  other  gentleman  from  Petersburg  offered  the  same 
provision  and  proposed  to  confine  it,  as  far-  as  he  could,  to  real  estate  and  personal 
1S3 — Const.  Deb. 


2906  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

tangible  property.  I  want  to  say  to  you  that  it  is  absolutely  impossible  for  us  to  stand 
here  and  tell  you  exactly  what  would  be  the  harm  in  doing  that.  I  cannot  point  out 
all  the  harm,  simply  because  I  cannot  fortell  it.  My  friend  talks  about  the  well-settled 
principles  of  taxation.  There  are  some  principles  of  taxation;  but  if  there  is  anything 
in  doubt  and  unsettled,  it  is  to  what  is  the  best  system  of  taxation.  The  general  theory 
that  the  burden  of  taxation  should  be  equal  is  correct;  but  when  you  come  to  apply 
that  theory  you  meet  with  the  difficulty.  It  has  been  determined  and  held,  repeatedly, 
by  text  writers,  by  courts,  by  constitution  makers  and  by  statute  makers  that  the  only 
true  principle  is  to  announce  that  the  authority,  whatever  it  may  be,  levying  taxes, 
shall  make  them  uniform  upon  classes.    That  is  announced  as  the  true  principle. 

My  friend  thinks  there  should  be  some  exception  to  that  rule,  and  yet  he  is  unable 
to  produce  a  single  authority  that  justifies  an  exception.  There  has  been  none  an- 
nounced by  anybody  that  I  know  of.  That  general  rule  is  the  only  safe  one  to  follow; 
one  of  the  reasons  being,  that  you  cannot  foretell  what  changes  will  take  place  in  sys- 
tems of  taxation.  I  do  not  know  whether,  after  the  expiration  of  ten  years,  as  pro- 
vided in  Section  14,  the  State  of  Virginia  may  not  see  fit  to  lay  all  her  taxes  upon 
railroad  property  upon  the  roadbed  and  personal  property  of  the  railroads.  She  can- 
not get  at  the  market  value  of  such  property.  Wliat  then  is  she  to  do?  Do  not  expect 
me,  gentlemen,  to  stand  here  and  give  you  a  dozen  or  two  illustrations  in  order  to 
show  the  danger  of  this  amendment,  because  I  cannot  do  it.  I  am  going  to  show  you 
the  danger  by  one  or  two  illustrations.  Suppose  that  at  the  expiration  of  ten  years  the 
State  of  Virginia  should  say:  "I  prefer  to  tax  the  roadbed  and  personal  property  of 
the  railroads."  She  cannot  get  at  the  market  value.  What  Is  she  to  do?  She  will 
get  at  the  value  by  putting  a  rate  of  tax  on  it  that  she  thinks  will  fairly  compensate 
her.  The  system  that  is  provided  here,  of  a  percentage  tax  on  gross  earnings,  is  a 
variable  thing.  It  may  be  that  in  times  of  depression  the  receipts  from  taxes  will  be 
seriously  affected.  It  may  be  that  a  road  that  is  now  earning  a  million  dollars  a  year 
gross  receipts  may  drop  to  half  a  million  or  seven  hundred  and  fifty  thousand  dol- 
lars, and  one  that  is  now  earning  five  millions  a  year  may  drop  to  four  millions.  The 
value  of  the  personal  property  and  real  estate  of  the  individual  remains  about  the 
same  in  times  of  depression  as  well  as  in  times  of  prosperity.  It  is  a  very  serious 
question  whether  the  taxing  of  gross  receipts  is  a  proper  system  of  taxation.  The 
State  may,  hereafter,  discard  it  and  say:  'T  am  not  going  to  have  my  revenues  going 
up  and  down  according  to  these  changes  in  the  market.  I  propose  to  have  a  system 
by  which  I  can  definitely  fix  the  amount  I  will  receive  and  you  shall  bear  the  burden 
just  as  individual  owners  bear  theirs;  that  is  to  say,  I  v/ill  have  a  fixed  rate  of  taxa- 
tion, and  I  will  ascertain  the  value  of  your  property  as  well  as  I  can,  and  I  will  impose 
a  tax  that  will  give  me  a  fair  revenue.  I  prefer  to  tax  your  real  and  personal  prop- 
erty in  that  way,  rather  than  to  have  a  separate  tax  upon  your  franchise."  What 
could  she  do,  under  circumstances  of  that  kind?  If  you  adopt  this  amendment  you 
will  find  that  her  hands  are  tied.  Yet  we  are  told  to  try  it.  We  have  listened  to 
illustrations  of  a  man  in  the  country  being  taxed  on  land  at  one  ratt?,  and  another  in 
a  city  at  another.  Yet  not  a  single  instance  has  been  produced,  in  which  that  has 
been  done.  It  is  a  question  of  very  grave  doubt  as  to  whether  such  a  classffication 
would  be  recognized  by  our  own  courts,  or  by  the  Supreme  Court  of  the  United 
States,  which  would  also  have  to  pass  on  the  question  as  to  whether  the  classification 
made  was  a  proper  one.  If  there  was  no  reason  to  justify  such  a  classification  it 
would  not  be  sustained  by  the  court.  But  when  you  come  to  property  like  railroad 
property,  the  market  value  of  which  you  cannot  ascertain,  if  you  want  to  tax  its  real 
estate  and  personal  property,  you  have  to  increase  the  rate  of  taxation  in  order  toi 
get  a  fair  return,  yet  under  this  amendment  your  hands  would  be  tied  in  that  respect. 

There  is  another  class  of  property  to  which,  for  the  purpose  of  illustration,  I  want 
to  call  your  attention.  Suppose  the  State  should  determine  that  she  wanted  to  impose 
a  tonnage  tax  upon  coal,  or  iron,  or  manganese?    Would  you  contend  that  a  pound 


DEBATES  OF  THE  CONSTITUTIONS AL  CONVENTION"  OF  VIRGINIA.  2907 

of  coal  gotten  out  of  the  mines,  ready  to  be  carried  away,  which  had  destroyed  a  part 
of  the  capital  of  the  State  should  be  taxed  at  the  same  rate  at  the  mouth  of  the 
mine  that  it  would  be  taxed  in  some  coal  yard?  Do  you  not  know  that  every  ton  of 
coal  gotten  out  of  the  earth  and  taken  away  is  so  much  destruction  of  the  wealth 
of  the  State? 

Mr.  Cameron:  I  would  say  that  it  should  be  taxed  at  its  value  where  it  was  as- 
sessed. 

Mr.  Mered^ith:  A  pound  of  coal  at  the  mouth  of  the  tunnel  could  not  have  any 
larger  market  value  that  it  would  have  five  miles  from  there;  but  the  State  would 
have  a  right  to  put  a  higher  rate  of  tax  upon  it,  in  recognition  of  the  fact  that  it 
has  taken  away  from  the  State  some  of  her  mineral  wealth.  The  same  would  be  true 
of  iron  and  of  the  other  minerals  of  the  State.  These  are  illustrations  that  occur  to 
those  of  us  who  have  not  "drunk  deep  of  the  Pierian  spring." 

I  have  given  you  two  illustrations.  I  have  told  you  that  I  cannot  stand  here,  and 
attempt  to  give  any  lengthy  catalogue  of  illustrations,  because  I  cannot  recall  them, 
but  you  can  readily  understand  that  the  true  principle  of  taxation  is  to  tax  by  classifi- 
cation, and  that  uniformity  should  be  as  to  class.  I  respectfully  submit  to  you  that 
any  attempt  to  abridge  that  principle  is  a  violation  of  that  which  my  friend  himself 
recognizes  as  the  true  and  correct  principle. 

Mr.  William  A.  Anderson:  "Would  not  the  effect  of  the  amendment  proposed  by 
the  gentleman  from  Petersburg  be  simply  to  classify  the  tangible  personal  property 
and  real  estate,  and  to  classify  them  in  the  same  class? 

Mr.  Meredith:  No,  sir  that  is  not  what  he  proposes.  He  proposes  that  real  estate 
of  every  character  shall  be  taxed  alike. 

Mr.  Cameron:  I  simply  say  that  the  property  which  you  say,  in  this  section  shall 
be  taxed  at  its  fair  market  value,  shall  be  taxed  on  the  value  so  ascertained. 

Mr.  Meredith:  One  further  remark  and  I  will  close.  My  friend  called  attention 
to  the  fact  that  we  had  recognized,  in  Section  9,  the  propriety  of  taxing  real  estate  be- 
longing to  the  railroads  just  as  other  real  estate  is  taxed,  and  at  the  same  rate  at 
which  other  real  estate  is  taxed.  To  what  extent  do  we  do  it?  We  do  it  for  ten 
years.  Did  we  not  explain  on  this  floor  that  it  was  done^  siniiply  as  a  test,  to  see 
whether  that  is  a  proper  system  of  taxation?  Did  we  not  distinctly  refuse  to  tie  the 
hands  of  the  Legislature  for  a  longer  period  than  ten  years?  The  reason  which  he 
cites  as  being  contradictory  to  the  true  principle  is  one  which  shows  that  we  recognized 
that  principle,  because  we  refused  to  tie  the  hands  of  the  Legislature  for  a  longer 
period  than  ten  years.  We  thought  that,  under  that  system,  by  putting  a  tax  of  one 
per  cent,  on  the  gross  receipts  of  these  corporations  we  would  get  a  fair  return  from 
the  corporations  in  the  way  of  revenue. 

I  earnestly  hope  that  the  committee  will  not  undertake  to  make  any  exception  to 
the  principle  stated  in  the  first  section. 

The  question  having  been  taken  the  result  was  announced — Ayes,  15;  noes,  47. 

The  amendment  was  not  agreed  to. 

Mr.  Fairfax:    I  now  move  that  Section  2  be  adopted. 

The  motion  was  agreed  to. 

Mr.  R.  L.  Gordon:  At  the  suggestion  of  the  chairman  of  the  committee,  I  desire 
to  offer  an  independent  section,  which  I  will  ask  the  Secretary  to  read: 

The  General  Assembly  may  confer  upon  the  proper  county  authorities  of  any  county 
the  right  to  levy  and  collect  a  special  tax  in  addition  to  the  ad  valorem  tax  upon  all 
vehicles  used  on  county  roads  having  tires  less  in  width  than  the  standard  width  of  tire, 
which  may  be  prescribed  by  such  county  authorities,  or  by  law. 

The  President:    The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Louisa  (Mr.  Gordon)  as  an  independent  section. 
The  amendment  was  rejected. 


2908 


DEBATES  OF  THE  COi^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Waddill:  Mr.  President,  I  offer  the  following  substitute  for  the  amendment 
offered  by  the  gentleman  from  Russell  (Mr.  Stuart).  We  have  conferred,  and  we  agree 
upon  this  substitute. 

The  General  Assembly  shall  not,  by  general  or  special  laws,  authorize  boards  of 
supervisors  to  create  any  interest-bearing  debt  binding  any  county  except  for  the  pur- 
chase of  a  county  farm,  of  sites  for  county  buildings,  or  for  the  reconstruction,  enlarge- 
ment or  repair  of  such  buildings,  or  for  expenses  incurred  in  times  of  epidemic  or  of 
want,  unless  by  vote  of  a  m.ajority  of  the  qualified  voters  of  such  county,  which  shall 
include  a  majority  of  tlie  resident  freeholders  of  said  county  entitled  to  vote,  and  who 
shall  vote  in  said  election. 

The  amendment  was  rejected. 

Mr.  Withers:  Mr.  President,  the  chairman  of  the  committee  tells  me  that  the 
committee  is  now  ready  to  consider  the  amendment  I  offered  by  v/ay  of  an  independ- 
ent section,  No.  24.  I  offered  that  amendment  seriously.  I  offered  it  oecause  I  believe 
it  is  a  proper  subject  for  the  consideration  of  this  Convention;  and  in  order  to  avoid 
the  discussion  of  the  same  question  twice,  it  was  agreed  that  it  should  come  up  in 
the  Convention  for  consideration,  and  there  be  once  and  finally  decided. 

I  submit,  Mr.  President,  that  it  is  a  matter  worthy  the  consideration  of  the  Con- 
vention. I  can  appreciate,  from  my  own  physical  and  mental  condition,  the  difficul- 
ties which  all  the  members  of  this  Convention  labor  in  their  effort  to  listen  to  speeches 
or  argument  of  any  kind.  I  sincerely  hope  that  this  is  the  last  occasion  upon  which 
I  shall  have  to  tax  that  courtesy  and  kindness  which  you  have  so  generously  extended 
to -me  on  so  many  occasions.  But  I  do  submit,  Mr.  President  and  gentlemen  of  the 
Convention,  that  it  is  a  matter  worthy  of  your  consideration.  It  was  offered,  as  I 
say,  in  all  seriousness  and  in  all  sincerity!  It  was  offered  without  any  idea  of  cater- 
ing to  popular  clamor,  or  throwing  a  sop  to  the  minds  of  the  thoughtless.  It  was 
offered  because  of  the  fact  that  I  believe  it  can  be  proven  to  those  who  will  listen, 
that  this  Convention,  if  it  has  accomplished  the  work  that  it  started  out  to  do,  and 
which  it  claims  it  has  in  part  accomplished,  is  entitled  to  credit  for  that  work  and 
entitled  to  see  that  that  work  has  a  fair  trial  in  order  that  its  efficiency  and  effect- 
iveness may  be  properly  tested. 

I  submit,  therefore,  Mr.  President,  that  the  first  reason  why  we  should  give  this 
matter  proper  consideration  is  that  if  we  have  constructed  a  proper  system  of  State 
government,  that  system  of  State  government  should  have  a  proper  and  fair  test  before 
the  people  before  it  is  condemned.  If  we  have  not,  the  opponents  of  our  method  and 
system  of  government  should  have  the  benefit  of  a  fair  test  before  the  people  in  order 
that  they  may  show  to  the  satisfaction  of  a  fair  minded  public  that  the  Constitution 
which  is  the  result  of  this  Convention's  work  should  be  condemned. 

Before  proceeding  further,  I  wish  to  call  attention  to  the  fact  that  the  only  things 
sought  to  be  affected  by  this  amendment  are  lands  and  lots  and  the  improvements 
thereon,  and  tangible  personal  property,  and  the  importance  of  that  will  be  seen  as 
I  proceed. 

Why  do  I  say,  then,  that  the  work  of  the  Convention  ought  to  have  a  fair  test 
before  it  is  condemned?  I  say  so,  Mr.  President  and  gentlemen  of  the  Convention, 
because  nearly  every  article  of  this  Constitution,  as  proposed  and  practically  adopted 
by  the  Convention,  can  be  nullified  and  destroyed  by  a  hostile  Legislature.  Do  not 
understand  me  to  say  that  there  v/ill  be  a  hostile  Legislature.  Do  not  understand  me 
to  intimate  that  the  present  General  Assembly  is  in  any  wise  hostile  to  this  body;  but 
I  make  the  statement,  and  I  challenge  successful  contravention  or  denial,  that  there 
is  hardly  an  article  of  this  Constitution  that  has  to  do  with  our  actual  government, 
and  the  administration  of  our  respective  State,  county  and  municipal  governments, 
but  what  can  be  nullified  by  a  hostile  Legislature. 

Suppose,  for  instance,  there  should  be,  to  put  this  Constitution  into  effect,  a  Leg- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION"  OF  YIRGIXIA. 


2909 


islature  hostile  in  political  opinion,  or  hostile  because  of  the  acts  of  this  body.  With- 
out tiring  you  to  enter  into  details,  I  can  by  one  illustration  substantiate,  as  I  respect- 
fully believe,  my  contention.  By  the  simple  power  which  the  flexibility  of  a  judiciary 
system  ought  to  give  to  the  Legislature,  a  hostile  Legislature  can  render  ridiculous  in 
two  years  the  entire  judiciary  system  as  proposed  by  this  body,  by  creating  forty-five 
circuit  judges,  with  minimum  salaries  of  not  less  than  $2,000  per  year;  so  that,  under 
the  system  proposed  by  this  Convention,  under  the  supposed  increased  efficiency  and 
economy  of  our  judiciary  system,  as  we  or  some  of  us  believe  we  have  framed  it,  not 
only  can  the  system  be  rendered  ridiculous  from  the  point  of  view  of  a  single  judiciary 
system,  but  a  hostile  Legislature,  should  such  exist,  can  absolutely  overburden  this 
State  with  judicial  salaries  and  say,  with  every  appearance  of  a  half  truth,  that  it 
is  the  result  of  this  Convention's  work.  They  can  increase  very  materially  and  fo 
a  very  great  extent  the  judicial  burdens  of  this  State  by  increasing  unnecessarily  the 
judges  of  the  towns  and  cities  of  the  Commonwealth. 

And  so  by  a  simple  act,  which  the  flexibility  of  the  judiciary  system  requires,  and 
the  wisdom  of  which  no  lawyer  will  question,  to-wit,  that  a  judiciary  system  shoula 
be  so  flexible  and  capable  of  expansion  or  contraction  as  to  meet  the  needs  and  neces- 
sities of  an  hour  or  a  day,  an  epoch  or  a  condition,  a  hostile  Legislature — hostile 
either  in  political  or  economic  opinions  to  the  work  of  this  Convention — can  nullify 
and  render  ridiculous  the  article  on  the  judiciary;  and  not  only  will  there  not  be 
money  saved,  but  the  burden  of  the  judiciary  of  Virginia  will  be  enormously  increased 
by  that  act. 

Therefore  I  say,  before  we  throw  this  aside  as  being  possibly  an  attempt  to  meet 
mere  popular  clamor,  before  we  throw  it  aside  as  a  demagogic  appeal  to  the  voter, 
we  should  have  consideration  for  it  as  a  very  great  brake  and  restraint  upon  the  acts 
and  the  injuries  that  can  be  done  by  a  Legislature,  hostile,  either  in  political  or  eco- 
nomic beliefs,  to  the  acts  of  this  Convention. 

Without  entering  into  further  details  on  that  score,  I  beg  leave  again  to  say  that 
the  work  of  this  Convention  is  entitled  to  a  fair  trial  before  the  people  of  the  State  ere 
it  can  be  nullified  by  hostile  opposition  or  by  those  who  differ  from  us  in  political  or 
economic  faith  and  doctrine. 

Nor  is  that  all.  Mr.  President  and  gentlemen  of  the  Convention,  we  are  entitled, 
or  rather  I  should  say  we  ought  to  give  those  whom  we  represent  the  benefit  of  that 
system,  if  it  is  a  wise  one.  We  ought  not,  after  coming  here  and  spending  nine 
months  in  earnest  deliberation  and  hard  work,  if  we  have  accomplished  aught  that  is 
good  or  beneficial  to  the  people  of  this  State,  permit  that  work  to  be  nullified  by  the 
possibility  of  a  mere  political  change  in  the  complexion  of  the  body  that  may  have 
an  indirect,  if  not  a  direct,  effect  in  putting  into  execution  the  instrument  that  we 
shall  adopt. 

Now,  if  we  have  reduced  expenses,  if  we  have  increased  the  revenues  of  the  Com- 
monwealth without  putting  more  burdens  upon  the  people  of  the  Commonwealth,  they 
are  entitled  to  the  benefit  of  those  acts.  They  are  entitled  to  whatever  good  and  v/hat- 
ever  profit  may  be  derived  from  them,  just  as  we  are  entitled  to  have  them  fairly  and 
honestly  tested  and  tried  before  the  people  of  the  Commonwealth,  ere  the  chance  to 
condemn  them  is  offered. 

I  say,  therefore,  Mr.  President,  if  we  have  accomplished,  as  we  believe  we  have, 
good  in  this  Convention,  if  we  have  done  that  which  will  redound  to  the  benefit  of  the 
property  o^mers  and  holders  of  this  Commonwealth,  and  to  the  benefit  of  the  citizens 
thereof,  they  are  entitled  to  the  benefit  of  whatever  there  is  of  good  or  wisdom  in  this 
document;  and  the  only  way  to  give  them  the  benefit,  as  it  is  the  only  way  to  give  us 
the  benefit  of  a  fair  test  and  trial,  is  to  see  that  such  a  brake  is  put  upon  the  possibility 
of  evil  as  will  enable  the  people  to  judge  for  themselves,  without  prejudice  or  passion, 
and  with  full  information  and  fair  tests  before  them,  as  to  the  benefit  of  our  work  and 
ae  to  its  wisdom  or  unwisdom. 


2910  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 

Then  I  say  thirdly,  Mr.  President,  that  our  work  justifies  the  giving  to  the  people 
of  the  State  the  benefit  of  a  tax  reduction  for  a  period  long  enough  to  give  to  them  the 
test  and  trial  of  the  Constitution,  and  long  enough  to  give  them  an  opportunity  tO' 
judge  fairly,  impartially  and  dispassionately  its  merits  or  its  defects.  It  shows  that 
we  have  confidence  in  our  own  achievements,  it  shows  we  are  willing  to  submit  our 
work  upon  its  merits;  and  these  three  reasons  will  nullify  any  opposition,  I  respectfully 
submit,  on  the  ground  that  the  tax  rate  is  purely  legislative.  That  I  willingly  concede, 
except  that  when,  by  reason  of  the  fact  that  the  organic  government  of  the  State  is 
changed,  and  new  conditions  are  brought  into  existence,  if  those  conditions  justify  a 
reduction  in  that  rate  pending  the  actual  putting  into  effect  of  that  instrument  and  that 
changed  organic  goveimment,  then  the  reduction  ought  to  be  made  during  that  period 
of  time. 

Then  I  say,  gentlemen  of  the  Convention,  that  our  financial  condition  justifies  this 
reduction  of  the  tax  rate.  It  justifies  it  from  every  point  of  view.  It  has  been  con- 
tended upon  this  floor  again  and  again  by  gentlemen  who  have  familiarized  themselves 
with,  the  facts,  and  we  can  give  them  credit  because  of  their  able  support  and  advocacy 
of  the  reports  of  communities  of  which  they  were  miembers — and  I  do  not  say  this  by 
reason  of  any  attempt  to  prejudice  the  case  in  advance — that  in  their  opinion  the  cor- 
porations of  the  State  have  not  been  bearing  their  proportion  of  the  burdens  of  taxation 
as  compared  with  the  individual  and  the  citizen. 

Now  I  submit  it  is  a  fair  and  proper  proposition  to  say  that  for  a  period,  at  least, 
of  the  time  in  which  we  have  changed  the  method  of  taxing  corporations,,  those  great 
organizations  of  industry  should,  for  a  part  of  that  time,  pay  somewhere  near  or  even 
up  to  the  very  point  of  their  just  proportion  of  the  burdens  of  taxation  of  this  State, 
while  the  citizen  who,  all  along  has  contributed  more  than  his  share,  should  have  for  a 
part  of  that  period  of  ten  years,  at  least,  a  reduction,  so  that  he  may  have  the  benefit 
of  the  increased  income  from  the  other  source,  which,  up  to  the  time  of  this  Conven- 
tion, it  is  maintained  had  not  borne  or  paid  its  proportionate  share  or  portion  of  taxa- 
tion. 

I  say,  Mr.  President  and  gentlemen  of  the  Convention,  that  that  justifies  this;  that 
if  our  theory  that  the  increased  revenues  from  corporations  will  result  in  a  per  annum 
income  of  $59,000  and  that  will  afford  us  a  surplus  year  by  year — and  we  alde/ady 
now  have  a  regular  annual  surplus — of  over  $300,000,  according  to  the  last  year's 
reports,  based  upon  the  increased  or  proposed  increased  taxes  upon  corporations  and 
excluding  increased  pension  appropriations  the  people  of  this  Commonwealth  who  own 
the  lands  and  the  lots  and  the  improvements  thereon,  and  the  tangible  personal  property 
are  entitled  to  a  benefit  by  way  of  reduction  in  their  taxes  while  this  experiment,  a 
franchise  tax  upon  corporations,  is  being  tried. 

I  say  our  condition  justifies  this  proposal  to  the  people  of  Virginia.  I  want  to  make 
a  statement  that  has  been  questioned  in  private  and  which  will  doubtless  be  questioned 
again;  that  after  the  assessment  of  realty  in  1890  went  into  effect,  the  income  of  Vir- 
ginia up  to  1900  has  varied  but  very  little  from  year  to  year;  that  the  reason  of  the 
accumulation  of  the  surplus  that  is  now  in  the  treasury  is  due,  not  to  the  increase  of 
income,  but  to  the  decrease  of  expenditures;  that  the  surplus  we  have  now  in  the 
treasury  of  the  State  of  Virginia  is  due,  not  to  an  increased  income,  as  some  gentlemen 
Tiave  maintained  in  speeches  upon  the  floor  of  this  Convention,  but  to  laws  passed  by 
the  friends  of  the  Constitutional  movement  in  the  Legislature  of  1895-96,  1897-98,  where- 
"by  the  useless  expenditures  of  the  Commonwealth  of  Virginia  were  cut  off  and  the  sur- 
plus funds  were  allowed  to  accumulate  in  the  treasury;  that  these  men  who  had  sought 
Constitutional  reform  and  had  been  unable  to  get  it,  who  had  urged  that  a  Convention 
was  necessary  to  give  the  people  of  the  State  a  proper  government,  when  they  were 
defeated  did  not  seek  to  put  the  responsibility  of  their  defeat  upon  their  opponents, 
but  met  every  suggestion  of  their  opponents  by  amendments  to  the  laws  of  the  State 
of  Virginia,  whereby  her  expenses  v/ere  reduced,  and  the  surplus  allowed  to  accumulate. 

That  ought  to  be  a  known  fact,  because  it  has  been  urged  upon  this  floor  again  and 


DEBATES  OF  THE  CONSTITUTIONAL  CONV^INTION  OF  VIRGINIA.  2911 


again  that  everything  this  Convention  has  done  or  could  have  done,  could  have  been 
accomplished  by  amendment.  That  is  not  a  sound  contention;  and  every  eflovt  was 
made  by  the  friends  of  the  Convention  movement,  by  meeting  the  objections  of  the 
opponents  of  that  movement,  to  amend  the  laws  so  that  the  people  of  the  Common- 
wealth might  get  the  benefit  of  the  very  things  that  their  opponents  suggested  could  be 
done,  or  of  other  things  which  the  friends  of  the  movement  brought  forward  of  their 
own  motion. 

I  am  prepared  to  substantiate  that  statement.  I  want  to  call  the  attention  of  the 
members  of  the  Convention  not  merely  to  these  figures  but  to  what  they  show.  I  want 
the  Convention  to  know  that  we  have  had  surpluses  in  the  State  treasury  before.  I  want 
tliem  to  know  we  have  had  larger  surpluses  in  the  State  treasury  than  Y7e  have  now, 
and  that  concomitant  and  coincident  with  the  existence  of  those  surpluses,  there  came 
as  there  is  to-day  a  perfect  howl  and  clamor  from  every  section  of  Virginia,  to  do  what? 
Not  to  economize,  not  to  give  the  people  the  benefit  of  an  ever-increasing  surplus,  but 
to  spend  the  surplus;  and  that  is  the  remedy  proposed  to-day.  Not  to  do  anything  that 
would  tend  to  lighten  the  burden  of  the  citizen,  but  to  get  rid  of  the  money.  Not  to 
spend  it  in  buying  bonds,  though  some  of  it  has  been  spe^t  in  buying  bonds,  but  to  get 
rid  of  the  money.  It  is  said  if  you  reduce  the  tax  rate  it  will  destroy  the  State's  credit, 
it  will  incur  the  danger  of  repudiation,  and  all  the  other  phantoms  of  the  imagination 
that  can  be  brought  up  to  oppose  lany  change  in  the  law  and  Constitution,  or  ,even  a 
statute  of  morals. 

Let  us  see  which  is  the  wiser  course,  to  have  an  efficient  and  economical  admini- 
stration of  your  affairs  whereby  taxes  can  be  reduced,  or,  by  reason  of  the  fact  that 
because  of  a  prior  efficient  and  economical  administration  of  your  affairs  a  surplus  has 
been  accumulated,  and  then  to  save  the  State  from  repudiation  and  ruin,  by  getting  rid 
of  the  surplus. 

I  want  the  Convention  to  know  that  on  September  30,  1892,  the  State  had  over 
$1,100,000  of  surplus  in  the  treasury.  On  September  30,  1895,  it  only  had  $61,000  sur- 
plus, and  on  December  1,  1895,  when  the  Legislature  came  here,  there  was  not  a  dollar 
in  the  treasury  to  pay  the  salaries  of  the  members. 

On  September  30,  last,  we  had  $826,000  in  the  treasury,  and  out  of  the  funds  that 
had  been  expended  prior  to  that  date  was  nearly  $53,000  of  the  costs  of  this  Convention. 

It  has  been  stated  the  Convention  has  cost  a  great  deal  more  than  anybody  thought 
it  would  cost.  That  just  shows  the  innocence  of  some  people.  Prior  to  the  calling  of 
the  Convention  I  had  never  seen  an  estimate  of  its  cost  of  less  than  $150,000  to  $250,000, 
including  an  extra  session  to  call  it,  and  the  costs  of  the  extra  session  was  less  than 
$39,000,  which  was  as  much  engaged  in  legislation  and  in  elections  of  judges  as  it  was 
engaged  in  preparing  a  call  for  this  Convention.  Nobody  who  examined  the  costs  of 
Conventions,  or  who  knew  the  costs  of  a  legislative  session,  had  ony  idea  that  a  new 
Constitution  could  be  put  into  effect  in  Virginia  for  less  than  $150,000  to  $250,000. 

I  stated  just  now,  and  I  am  prepared  to  substantiate  that  statement,  that  as  soon 
as  the  real  estate  assessment  of  1890  went  into  effect  up  to  the  year  1900  there  has 
been  practically  no  average  annual  increase  im  the  income  of  the  State  of  Virginia,  but 
that  the  surplus  has  accumulated  by  reason  of  the  fact  that  there  has  been  a  decrease 
in  the  expenditures  of  this  State. 

To  make  my  contention  clear,  I  want  gentlemen  to  listen  at  these  figures.  In  1890 
our  income  was  $2,887,527.35,  our  outgo  $2,695,659.66.  In  1891  our  income  was  $2,902,- 
424.97,  our  outgo  $2,491,177.35. 

Then  it  was,  and  I  call  your  particular  attention  to  this,  that  the  readjustment  of 
land  values  was  made,  and  there  was  a  great  increase  by  reason  of  the  tremendous 
boom  in  the  Southwest  and  all  the  section  from  Lynchburg  to  the  Tennessee  and  Ken- 
tucky and  West  Virginia  lines,  that  more  than  counterbalanced,  by  far,  the  loss  in 
assessments  in  the  Valley  and  in  other  sections  of  the  State. 

In  1892  our  income  was  $3,738,  599.72,  our  outgo  $3,350,  123.32. 

That  assessment  did  not  go  into  effect  until  1892.    It  was  assessed  in  June,  1890, 


2912 


DEBATES  OF  THE  CO:^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


the  citizen  did  not  make  his  return  based  upon  it  until  February  9,  1891,  and  the 
Auditor's  book  closed  on  the  30th  of  September,  1891,  two  months  before  the  taxes  for 
1891  were  due;  consequently  the  increase  shows  in  the  next  year.  But  of  that  increase 
of  over  $800,000,  $442,000  was  due  to  the  direct  taxes  refunded  by  the  United  States 
government  to  the  State  of  Virginia,  of  which  that  year,  $434,000  were  distributed  to 
the  people  to  whom  they  were  due. 

So  that  the  fair  and  equitable  increase  is  seen  in  the  return  of  the  next  year,  1893^ 
when  the  income  was  $3,303,326.69,  and  the  outgo  $3,754,629.05;  and  thjon  it  was  that 
the  surplus  had  accumulated  from  $303,233.69  in  1890  to  $714,481.31  in  1891,  and  to 
$1,102,957.71  in  1892,  and  had  decreased  in  1893  to  $651,655.85. 

In  1894  our  income  was  $3,083,151.11,  our  outgo  $3,602,570.97,  and  our  surplus  had 
decreased  to  $132,235.99.  In  1895  our  income  was  $3,333,257.57,  our  outgo  $3,404,097.92, 
and  our  surplus  was  $61,395.64;  and  when  the  Legislature  came  here  in  its  regular 
session  on  the  first  Wednesday  in  December,  1895,  there  was  no  money  in  the  treasury 
to  pay  its  members,  and  the  money  had  to  be  borrowed  from  another  fund  and  replaced 
Legislature,  and  you  will  see  their  beneficent  effect  upon  the  outgo  of  Virginia, 
was  lying  in  the  treasury  of  Virginia  $1,102,957.71  surplus. 

Now,  come  in  the  measures  that  the  friends  of  this  Convention  brought  into  the 
unanimity  resolved  that  a  new  method  of  taxation  should  be  tried  for  a  fixed  period 

In  1896  the  income  was  $3,499,301.58,  the  outgo  $3,347,399.17,  and  the  surplus  had 
increased  to  $213,298.05. 

In  1897 — the  various  and  sundry  acts  had  begun  to  get  in  their  work — the  inconje 
of  the  State,  though  reduced  to  $3,131,255.35,  nearly  met  the  outgo,  which  had  been 
reduced  to  $3,151,282.09,  and  the  surplus  was  $193,271.31. 

In  1898  our  income  was  $3,230,410.24,  our  outgo  of  $3,200,257.92  and  our  surplus  was 
then  $223,423.03,  an  increase  steadily  going  on  from  that  time,  as  you  will  see. 

In  1899  our  income  was  $3,475,404.87,  the  outgo  (still  decreasing)  $3,111,430.80,  and 
the  surplus  had  increased  to  $587,897.20. 

In  1900,  mainly  by  reason  of  the  delinquent  tax  laws,  known  as  the  "  land  grabbers' 
law  "  going  into  effect,  the  income  of  the  State  took  another  big  jump  to  $3,739,267.92, 
and  with  it  the  outgo  of  the  State  likewise  took  a  large  jump  to  $3,53^,343.28,  but  there 
was  then  a  balance  in  the  treasury  of  $791,321.84. 

And  last  year,  when  the  beneficent  effect  of  those  much-abused  laws  had  to  some 
extent  spent  its  force,  and  people  paid  more  promptly  their  taxes,  the  income  of  the 
State  diminished  to  $3,633,156.89,  while  the  outgo,  ever  increasing,  had  gotten  up  to 
$3,597,881.17,  and  left  the  balance  as  of  last  September,  of  $826,i597.06. 

So  now,  gentlemen,  I  call  your  attention  to  the  fact  that  in  Virginia  to-day  a  sur- 
plus is  treated  as  a  disease,  as  a  danger,  and  not  long  since  there  appeared  in  one  of 
the  papers  of  the  city  of  Richmond  a  four  column  article  in  which  it  was  said  that  the 
attempts  to  reduce  the  tax  rate  would  be  accompanied  by  repudiation  and  ruin,  that 
our  honor  was  involved — of  course,  I  do  not  attempt  to  quote  it,  though  I  have  it  here 
in  my  pocket;  the  substance  is  what  I  am  endeavoring  to  state — that  our  credit  was 
involved,  but  that  in  view  of  the  fact  that  the  surplus  was  there  and  apparently  a  great 
menace  to  our  welfare,  there  was  scheme  after  scheme  suggested  whereby  it  could  be 
gotten  rid  of,  and  not  one  of  them  suggested  the  reduction  of  the  State  debt. 

I  say,  Mr.  President,  that  there  can  by  no  possibility  be  a  greater  wisdom  in  spend- 
ing unnecessarily  money  that  you  happen  to  have  accumulated  by  a  splendid  admini- 
stration of  your  affairs,  than  in  reducing  the  taxes  that  put  the  surplus  in  the  treasury. 
I  cannot  think  that  gentlemen  on  this  floor  would  for  a  moment  suppose  that  I  would 
intentionally  advocate  anything  that  would  destroy  Virginia's  credit,  I  cannot  think  that 
gentlemen  upon  this  floor  would  believe  that  I  desire  a  policy  of  repudiation  and  ruin; 
but  I  say  that  as  a  choice  and  alternative  between  spending  the  surplus  and  getting  rid 
of  the  surplus  by  reducing  taxes,  infinitely  the  preferable  and  better  way  is  to  reduce 
the  tax  rate. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA.  2913 

Now,  we  can  do  it.  The  other  day  the  gentleman  from  Fairfax  (Mr.  Moore)  filed  as 
a  part  of  the  record  a  statement  from  the  Auditor  in  which  he  said  that  the  proposed 
reduction  of  10  cents  in  the  $1C0  for  the  State  purposes  alone  would  cause  a  reduction 
in  the  revenue  of  hetween  §514,000  and  ?515,000  per  year.  In  order  that  those  who 
oppose  this  contention  may  have  the  benefit  of  every  possible  doubt  and  that  the 
unwisdom  of  this  proposition  may  have  the  strength  of  every  possible  argument  let  us 
take  the  Auditors'  figures  and  call  them  in  round  numbers  $515,000. 

On  motion  of  Mr.  Turnbull  the  Convention  adjourned  until  Friday,  March  7,  1902, 
at  10  o'clock  A.  M. 


FRIDAY,  March  1,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  J.  B.  Hawthorne,  D.  D. 

Mr.  Summers  proposed  a  resolution  relating  to  the  Elective  Franchise. 

The  President:  The  unfinished  business  this  morning  is  the  report  of  the  Com- 
mittee on  Taxation  and  Finance.  The  pending  question  is  on  the  independent  section 
offered  by  the  gentleman  from  Danville  (Mr.  Withers),  and  the  gentleman  from  Dan- 
ville has  the  floor. 

Mr.  Withers:  Mr.  President,  on  yesterday  1  gave  notice  of  an  amendment  to  the 
Section  as  originally  drawn,  which  was  not  offered  then  in  the  sense  that  it  was  actually 
written  out,  because  I  hoped  to  have  a  conference  with  my  friend  from  Richmond  (Mr. 
Meredith).  Having  failed  in  that,  I  will  offer  the  amendment  and  he  can  then  have 
the  opportunity  of  an  examination  of  the  same,  and  if  he  desires  to  amend  it,  I  think  it 
is  more  than  probable  that  we  can  agree  on  the  amendment  which  he  suggests.  The 
proposition  is  to  add  at  the  end  of  the  section  the  following  language: 

Provided,  hov/ever,  that  the  General  Assembly  maj^  during  such  period  of  four  years 
levy,  in  addition  to  the  annual  appropriation  for  pensions  prior  to  September  30,  1901, 
a  special  tax  for  pensions  on  lands  and  lots  and  the  improvements  thereon,  and  on  tangi- 
ble personal  propertj^  not  exceeding  five  cents  on  the  one  hundred  dollars  of  the  assessed 
values  there  of. 

I  will  say,  in  further  explanation  of  the  reason  this  amendment  vv'as  not  on  the 
original  draft  of  the  independent  section  as  proposed,  was  due  to  the  fact  that  confer- 
enceg  about  this  matter  had  been  held  between  myself  and  several  other  gentlemen, 
notably  the  gentleman  from  Lynchburg  (Mr.  Glass),  and  I  expected  him  to  offer  the 
amendment.  But,  he  being  absent  by  reason  of  sickness,  and  the  end  of  the  committee's 
report  on  Taxation  and  Finance  being  reached  at  a  point  that  was  astonishing  to  me, 
I  had  to  draft  it  then  and  there.  So  it  is  not  an  after-thought,  but  it  is  simply  carrying 
out  the  original  plan: 

Now,  Mr.  President  and  gentlemen  of  the  Convention,  I  will  endeavor,  as  rapidly 
as  it  is  possible  for  me  to  do,  clearly  and  intelligently,  to  explain  the  remainder  of  the 
reasons  for  offering  this  amendment,  or  this  independent  section  as  an  amendment,  and 
will  endeavor  further  to  substantiate  my  contention  that  the  revenues  of  the  State  of 
Virginia  justify  the  reduction  in  taxation  proposed,  and  that  such  a  reduction  will  not 
bring  about  any  threat  of  repudiation  or  ruin,  will  not  in  any  wise  endanger  or 
threaten  the  credit  and  honor  of  the  State  of  Virginia,  and  will  give  no  ground  or  justi- 
fication for  an  onslaught  by  its  creditors  upon  the  credit  of  the  State.  Furthermore,  I 
believe  that  I  lay  down  a  principle  of  business  conduct  when  I  say  that  any  creditor  of 
any  State,  or  of  any  institution  that  has  to  do  with  large  credits  and  finances,  will  con- 
sider it  an  infinitely  wiser  and  better  policy  to  reduce  the  expenditure  and  outgo  of  that 
institution  or  State  and  to  reduce  the  means  of  income  if  by  that  an  economic  and 
efficient  administration  of  the  affairs  of  that  State  or  institution  can  be  brought  about, 


2914 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


rather  than  to  keep  up  an  unnecessary  income  in  order  that  unnecessary  and  useless 
expenditures  may  be  incurred. 

Just  as  the  Convention  adjourned  yesterday  afternoon  I  was  about  to  take  up  what 
data  I  had  to  offer  as  proof  of  the  contention  that  the  reduction  could  be  made  without 
Injury  to  the  credit  or  to  the  honor  of  the  State  of  Virginia;  but  I  think  it  will  perhaps 
be  better,  in  the  order  of  sequence,  to  call  attention  briefly  to  one  or  tv^^o  other  things, 
and  then  to  take  up  the  figures  and  the  facts  in  support  of  the  contention  that  we  can 
make  this  reduction  without  in  any  wise  impairing  our  credit,  or  the  efficiency  of  our 
government  or  of  our  institutions  or  of  our  educational  work.  I  submit,  therefore,  Mr. 
President,  that  those  of  us  who  have  taken  the  position  that  undue  and  unnecessary 
burdens  should  not  be  put  upon  the  corporations  in  the  State  of  Virginia  cannot  con 
SiStently  say  that  undue  and  unnecessary  burdens  shall  be  continued  upon  the  citizens 
of  the  State  of  Virginia.  If  it  is  a  hardship  to  impose  a  franchise  tax  upon  corporations 
in  excess  of  what  is  just  and  right,  it  is  equally  a  hardship  to  continue  an  ad  valorem 
tax  upon  the  property  of  citizens  in  excess  of  what  is  needful  and  necessary;  and  he 
who  occupies  a  position  of  opposition  to  the  one,  either  because  he  thinks  the  entire 
franchise  tax  is  excessive  or  because  the  percentage  levied  is  excessive,  is  inevitably 
bound  to  face  the  difficulty  of  making  consistent  his  position,  if  he  opposes  an  attempt 
to  discontinue  an  unnecessary  ad  valorem  tax  upon  the  property  of  the  individual. 
Another  point  I  respectfully  commend  to  your  consideration.  As  I  suggested  to  you 
yesterday,  following  in  the  wake  of  the  Republican  party  of  the  Union,  it  seems  now  to 
be  the  cry  based  upon  an  article  in  a  certain  Richmond  newspaper  of  the  19th,  and  that 
is  the  gospel  of  our  opponents,  that  the  way  to  get  rid  of  the  surplus  is  to  spend  it. 
It  is  certainly  the  quickest  and  easiest  way,  but  in  order  to  get  rid  of  a  surplus  by  that 
method  I  would  submit  you  will  incur  appropriations,  fixed  charges  and  expenses  upon 
the  State  of  Virginia  that  it  v/ill  be  as  hard  to  rid  the  State  of  as  it  will  be  to  raise 
the  tax  rate,  should  it  be  lowered  too  much.  I  say  that  if  we  attempt  to  spend  the  sur- 
plus you  can  fix  upon  the  treasury  of  the  State  such  charges  and  such  appropriations  as 
v/ill  be  almost  impossible  to  rid  the  treasury  of,  except  by  the  dire  necessity  of  either 
increasing  taxes  or  meeting  repudiation.  If  anybody  thinks  it  is  an  easy  task  to  cut 
off  and  get  away  from  anytliing  that  is  extravagantly,  though  with  perfect  honesty, 
managed,  if  anybody  thinks  it  is  an  easy  matter  to  get  the  hand  of  one  solitary  voter 
which  has  been  fixed  upon  the  treasury  out  of  that  treasury,  I  tell  you  you  never  made 
a  greater  mistake,  nor  undertook  a  greater  burden.  Legislatures  of  which  I  have  been 
a  member  have  attempted  it,  and  a  special  committee  appointed  for  the  purpose  recom- 
mended that  the  appropriations  to  every  institution  in  this  Commonwealth  be  reduced, 
with  one  or  two  or  three  exceptions,  and  it  was  like  the  task  of  Hercules  to  clean  the 
Augean  stables,  and  it  was  just  as  hard  as  to  obtain  the  consent  of  the  Legislature  to 
give  the  necessary  and  needful  increase  of  the  tax  rate. 

Can  we,  who  have  favored  a  Constitutional  Convention,  who  have  proclaimed  that 
it  could  be  of  material  pecuniary  benefit  to  the  citizens  of  this  State  fail  to  meet  this 
question?  The  opponents  of  a  Convention  have  ridiculed  that  idea  from  its  inception. 
They  have  proclaimed  triumphantly  that  that  was  the  merest  chimera,  that  there  was 
no  reasonable  hope  that  such  a  thing  could  be  accomplished  and  that,  too,  in  the  face 
of  the  fact  that  by  legislative  enactments  brought  about  by  the  gentleman  from  Bruns- 
wick, then  a  member  of  the  Senate  of  Virginia,  by  the  gentleman  from  Rockingham, 
now  a  member  of  the  Senate  of  Virginia,  by  the  then  representatives  from  the  counties 
of  Rockbridge,  Campbell,  Franklin  and  Albemarle,  Messrs.  Winbome,  Featherstone, 
Saunders,  Boaz  and  others,  friends  of  a  convention  movement,  and  accepting  a  chal- 
lenge thrown  down  in  the  Legislature  by  our  opponents  that  "if  you  are  sincere  in 
advocating  this  movement  you  will  adopt  such  measures  here  as  will  bring  about  the 
reforms  proposed,"  it  was,  I  say,  by  their  efforts  and  those  who  acted  with  them,  that 
a  surplus  has  again  accumulated  in  the  treasury  of  the  State  of  Virginia.  To  them 
is  the  honor  due,  and  to  others,  too — the  gentleman  from  Page  particularly,  then  a 


DEBATES  OF  THE  COXSTITUTIOXAL  COJs^VEIs^TION-  OP  VIRGINIA.  2915 

member  of  the  House  of  Delegates  of  Virginia.  I  esteem  it  but  right  and  just  that 
their  names  should  be  mentioned,  because  they  have  faithfully  fought  every  contention 
of  the  opposition,  and  have,  I  respectfully  submit,  shown  all  of  them  to  be  errors. 
Now,  the  opponents  of  a  convention,  following  up  that  line  of  attack  upon  the  Legislature, 
or  rather  on  the  movement  while  it  was  in  the  Legislature,  have  persistently  pro- 
claimed through  this  State,  during  the  sessions  of  the  Convention,  that  we  have  done 
nothing;  that  our  work  has  resulted  in  no  benefit,  and  yet  when  we  say  that  we  have, 
and  they  challenge  us  to  shovN^  it  and  we  propose  to  give  the  people  a  relief,  they  say 
it  is  a  demagogic  move,  and  but  chaff  thrown  in  the  wind  to  tickle  the  fancy  of  the 
thoughtless  and  the  unthinking.  And  lastly,  this  Convention  has  with  almost  practical 
unanimity  resolved  that  a  new  method  of  taxation  should  be  tried  for  a  fixed  period 
of  years.  If  that  method  of  taxation  is  found  to  be  just  it  will  be  perpetuated.  If 
that  method  of  taxation  is  found  to  be  unjust  it  will  be  corrected,  or  a  substitute  made 
in  the  stead  thereof.  But  the  passage  of  this  resolution,  gentlemen  of  the  Convention, 
will  insure  at  least  one  fact;  that  whether  or  not  the  particular  method  we  have  come 
upon  is  finally  proved  to  be  correct  or  not,  there  will  at  least  this  thing  arise  out  of 
it,  and  that  is,  that  by  giving  relief  to  the  citizen  who  has  borne  more  than  his  share 
of  the  burden,  a  guarantee  will  ever  exist  that  the  corporations  of  this  State  shall  also 
bear  their  share  of  the  burdens  of  taxation. 

I  say,  therefore,  that  before  we  throw  this  aside,  we  should  consider  the  questions 
involved  in  it,  and  the  effect  which  it  v/ill  have. 

Now,  Mr.  President,  I  want  to  try  to  sustain  the  position  that  this  can  be  done, 
that  it  can  be  done  with  perfect  safety,  and  without  trenching  upon  the  surplus  in  the 
treasury;  that  it  can  be  done 'without  injury  to  institutions,  to  education,  to  charity,  or 
to  benevolence,  or  to  the  efficiency  of  the  administration  of  our  State  government. 

I  want  to  repudiate  any  idea  that  this  thing  is  brought  here  for  buncombe  or  for 
effect.  If  anybody  thinks  that  let  him  vote  against  it.  If  anybody  can  disprove  the 
facts  that  I  have  managed  to  get  at — and  I  have  sought  for  the  truth — and  can  show 
me  that  my  calculations  are  wrong,  and  that  I  am  in  error,  then  I  will  vote  against  my 
own  proposition.  I  have  not  hesitated  upon  the  floor  of  this  Convention  to  acknowl- 
edge when  I  was  wrong,  and  I  have  no  pride  of  opinion  in  a  proposition  of  this  sort. 
It  is  a  mere  business  proposition,  and  it  is  a  mere  question  as  to  whether  or  not  v^^e  are 
in  a  position  to  accept  a  business  proposition. 

Now  to  the  facts.  You  will  observe  that  the  resolution  has  to  do  with  the  tax 
rate  only  upon  lands  and  lots,  and  the  improvements  thereon,  and  tangible  personal 
property.  Now,  it  originally  said  "choses  in  action,  moneys,  credits  and  capital,"  but 
it  does  not  say  that  now,  because  those  things  are  the  things  that  have  not  borne 
their  just  proportion  of  personal  property  taxation,  while  the  tangible  personal  prop- 
erty rarely  ever  escaped.  The  household  furniture,  the  cattle  horses,  farming  imple- 
ments, and  so  forth — the  tools,  etc.,  of  the  laborer,  not  exempt  by  law,  are  taxed,  and 
the  stocks,  bonds,  securities,  etc,  go  untaxed,  at  least  in  part. 

The  second  reason  is  that  this  Convention  has  adopted  the  classification  theory 
of  taxation,  and  moneys,  credits,  capital,  choses  in  action,  etc.,  are  not  of  the  same 
class  of  property  as  visible  tangible  personal  property,  and  therefore  I  did  not  want 
to  do  anything  that  would  seem  even  to  trench  upon  the  idea  of  classification.  Further- 
more, I  have  never  thought  that  the  holders  of  those  forms  of  personal  property  had 
any  just  right  to  complain  of  the  taxation  upon  it. 

Now,  let  us  eliminate  that  question.  The  property  affected,  according  to  the  last 
Auditor's  report,  the  value  of  lands  and  lots  and  the  improvements  thereon  amount  to 
$323,738,088;  the  value  of  the  tangible  personal  property  of  this  State,  which  is  the  only 
personal  property  affected  by  this  resolution  is  $46,403,481,  while  the  intangible  personal 
property  in  the  nature  of  moneys,  credits,  capital  and  choses  in  action,  etc.,  amounts 
to  $68,919,711.  So  that  now  that  to  which  this  resolution  purports  and  intends  to  apply, 
is  lands  and  lots  and  the  improvements  thereon,  amounting  to  $323,738,088,  and  tangible 
personal  property  amounting  to  $46,403,481. 


2916 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  R.  Walton  Moore:  I  simply  wish  to  call  your  attention  to  the  provision  in 
Section  9  as  reported  by  the  Committee  on  Taxation  and  Finance.  In  speaking  of  the 
taxation  of  the  visible  property  of  railroad  and  canal  corporations,  this  provision 
appears:  , 

And  such  property  shall  be  taxed  for  State  and  for  county,  city,  town  and  district 
purposes  in  the  same  manner  as  now  authorized  by  law,  at  such  rates  of  taxation  as 
may  be  imposed  by  them,  respectively,  from  time  to  time  upon  the  real  estate  and  tangi- 
ble personal  property  of  natural  persons. 

If  that  provision  should  stand,  and  you  should  reduce  the  taxes  laid  there  from 
forty  to  thirty  cents  upon  the  real  estate  and  tangible  personal  property  of  natural 
persons,  would  not  these  corporations  participate  in  that  reduction? 

Mr.  Withers:  Unquestionably. 

Mr.  R.  Walton  Moore:    And  do  you  include  that  feature  in  your  calculations? 

Mr.  Withers:  Unquestionably  you  do.  If  you  choose  to  classify  it  you  can  meet 
it,  and  if  you  do  not  choose  to  classify  it  you  cannot  meet  it.  But  I  am  going  to  include 
that  in  the  calculation  which  I  will  give  you. 

Now,  Mr.  President,  I  wish  the  members  of  the  Convention  would  listen  to  these 
items.  If  they  are  erroneous  you  can  show  it.  The  income  for  State  purposes  from 
taxes  on  real  estate,  of  course,  the  school  taxes  are  not  intended  to  be  touched — accord- 
ing to  the  last  Auditor's  report  for  the  year  ending  September  30,  1901,  was  $806,080.69, 
and  the  reduction  that  will  be  brought  about  by  this  section,  if  adopted,  will  be 
$288,693.56.  All  personal  property  affected  by  this  proposed  reduction,  that  is  tangible 
personal  property  of  the  individual  or  of  the  corporations  yields  an  income  of  $139,- 
210.44,  and  the  reduction  thereon  will  be  $46,403.48.  Railroads  paid  for  State  purposes 
to  the  State  of  Virginia  last  year  the  sum  of  $202,403.52,  and  the  reduction,  if  this 
independent  section  is  adopted,  v/ill  be  on  this  property  $67,467.84.  It  will,  of  course, 
not  affect  the  franchise  tax,  nor  will  it  affect  the  reassessment  of  railroad  property  by 
the  Corporation  Commission. 

Next  we  have  the  delinquent  land  taxes.  They  are  not  separated  by  the  Auditor, 
and,  therefore,  I  may,  and  do  very  probably  include  more  than  justly  belongs  within 
the  scope  of  this  reduction  resolution;  but  I  take  it  in  order  to  give  every  benefit 
of  doubt  to  the  opposition  to  this  proposition,  because  this  is  a  serious  proposition, 
and  if  it  is  an  error  it  should  not  be  passed. 

The  delinquent  taxes  amounted  to  $76,662.38.  Presuming  that  all  of  them,  delin- 
quent, were  on  this  item  of  taxation  for  State  purposes,  the  reduction  would  be  $25,- 
554.12.  Then  express  companies  paid  on  their  personality — I  do  not  include  their 
licenses,  because  this  resolution  has  nothing  to  do  therev/ith — last  year  $118.74,  and 
the  reduction  thereon  would  be  $39.58.  The  Pullman  Car  Company  last  year  paid  on 
property  they  have  now  in  the  State,  $962.93,  and  the  reduction  will  be  $320.98.  Then 
the  5  per  cent,  imposed  for  the  non-payment  of  taxes  on  the  1st  of  December,  the  differ- 
ent items  of  which  are  not  shown  by  the  Auditor's  report  and  consequently  I  have  in- 
cluded them  all — another  inclusion  against  me — was  $19,748.99,  and  the  reduction  there- 
from would  be  $6,583.00,  The  steamboat  companies  paid  on  their  tangible  personal 
property,  fee,  $2,488,67,  and  the  reduction  there  would  be  $816.22.  The  telephone  and 
telegraph  companies  paid  on  their  tangible  personal  property  and  real  estate,  if  they 
own  any  land,  $3,662.12,  and  the  reduction,  if  carried  into  effect,  will  be  $1,220.71. 
Remember  that  on  such  things  as  telegraph  and  telephone  companies,  express  compan- 
ies, etc.,  I  have  not  and  do  not  profess  to  affect  the  license  tax.  I  am  simply  giving 
you  the  figures  of  taxation  returns  as  they  will  be  affected  on  the  real  estate  and  tan- 
gible personal  property  in  the  State,  whether  belonging  to  individuals  or  to  corpora- 
tions. The  total  reductions,  therefore,  on  the  subjects  mentioned  in  this  independent 
section,  proposed  by  v/ay  of  amendment  to  the  articles  of  taxation  and  finance,  amounts 
to  $437,099.49,  It  will  be  said  that  the  Auditor  addressed  a  letter  to  the  distinguished 
member  from  Fairfax,  dated  February  24th,  in  which  he  says  that  a  10  per  cent,  redue- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  .2917 


tion  in  the  taxes  would  cut  down  the  revenues  of  the  State  by  the  amount  of  $514,- 
198.99.  I  make  it  §437,099.49,  because  I  do  not  touch  the  revenue  derived  from  banks 
for  State  purposes,  nor  does  this  resolution  touch  the  revenue  derived  from  choses  in 
action,  moneys,  credits,  capital,  etc.  So  that  the  effect  of  the  resolution  offered  here  is 
to  reduce  the  revenues  of  the  State  for  State  purposes  exclusive  of  schools  by  $437,- 
099.49. 

That  is  what  we  have  got  to  confront.  That  is  what  we  have  got  to  provide  for. 
That  is  what  we  have  got  to  meet  in  order  that  the  government,  institutions,  &c.,  of 
Virginia  may  not  be  ineffectively  administered  or  impaired.  Let  us  see  if  we  are 
are  prepared  to  do  it. 

I  want  to  meet  the  opposition  fairly,  and  I  want  to  be  fairly  met.  I  mean,  not 
that  the  gentlemen  want  to  do  me  an  injustice,  but  I  want  the  facts  to  be  fairly 
known  to  you.  Therefore,  when  the  letter  of  the  Auditor  to  the  gentleman  from  Fair- 
fax is  cited  in  opposition  to  this  movement,-  as  involving  a  reduction  of  $515,000,  I  want 
you  to  remember  that  it  includes  the  two  subjects  of  banks  and  the  very  important 
subjects  of  intangible  personal  property  amounting  to  nearly  $69,000,000,  according  to 
the  last  Auditor's  report,  and  that  I  do  not  propose,  by  this  resolution,  to  touch  or 
affect  the  returns  from  either. 

Now,  ?Ir.  President,  how  do  we  propose  to  meet  this  reduction  of  $437,099.49?  It 
has  been  stated  upon  the  floor  of  this  Convention  and  has  never  been  controverted — 
because  the  members  of  the  Committee  on  Taxation  and  Finance  have  proven  them- 
selves so  well  equipped  and  so  capable  that  its  report  has  passed  through  this  body 
without  a  solitary  amendment,  except  by  their  consent — and  I  take  their  estimate  as 
correct — that  this  report  will  yield  this  State  approximately  or  fully  $250,000  a  year 
by  reason  of  the  change  in  the  franchise  tax  on  corporations,  etc.  That  is  the  first 
item  wherewith  to  meet  the  $437,000  that  will  be  needed.  I  think  we  will  find  that 
it  will  yield  more;  but  I  v;ill  base  it  on  their  estimate.  The  second  is  the  annual  sur- 
plus revenue  of  Virginia,  for  how  long?  If  I  should  have  said  for  last  year,  some  gen- 
tlemen would  say.  "Why,  he  takes  figures  for  one  jesiv  and  argues  from  them."  I 
am  going  to  take  figures  for  six  years,  and  I  take  them  for  six  years  for  this  reason, 
that  the  law  that  the  framers  of  this  Convention  movement,  enacted,  began  to  go  into 
effect  six  years  ago,  and  the  conditions  now  existing  are  practically  the  same 
as  they  were  then,  except  that  the  new  assessment  on  real  estate  and  new  laws  for 
the  compelling  of  the  payment  of  delinquent  taxes  have  increased  the  income  of  the 
State,  but  the  outgo,  has  kept  pace  with  it.  The  annual  surplus  revenue  of  the  State 
of  Virginia,  beginning  wath  and  including  the  year  1896,  and  coming  up  to  and  includ- 
ing the  year  1901,  is  $125,000.  Therefore,  it  is  fair  to  say,  with  conditions  of  income 
and  outgo  remaining  approximately  the  same  that  we  can  bank  upon  a  like  surplus 
revenue  as  long  as  similar  conditions  and  circumstances  exist.  We  have,  therefore, 
to  start  with  $375,000  to  meet  this  proposed  reduction.  That  leaves  a  balance  of 
$62,000  to  be  accounted  for.  Let  us  see  hov:  we  are  to  account  for  that.  I  say  we  will 
account  by  the  effective  putting  into  effect  of  this  Constitution — for  every  dollar  of  it. 
I  see  my  friend  smile — I  say  that  every  dollar  of  it  will  be  met  by  the  effective  putting 
into  effect  of  this  Constitution,  and  should  I  be  mistaken  in  the  calculation  that  the 
legislative,  judiciary  and  other  departments  of  this  government,  administered  prop- 
erly under  this  Constitution  will  meet  the  possible  deficit  of  $62,000  caused  by  this 
reduction,  there  is  another  perfectly  just  and  equitable  way  of  meeting  it;  and  that 
is  by  a  properly  graded  liquor  license  tax.  It  is  an  absurdity,  as  it  strikes  me,  to 
put  upon  a  bar-room  or  a  saloon  in  a  village  of  200  inhabitants  the  same  burden  you 
would  put  upon  one  in  a  city  like  Norfolk,  Richmond  or  Danville.  It  has  been  esti- 
mated that  under  a  proper  system  of  liquor  license  taxes  from  $200,000  to  $400,000  of 
increased  revenue  could  be  derived  without  putting  undue  oppression  upon  the  busi- 
ness. Is  it  a  reasonable  proposition  that  the  same  license  tax  should  be  imposed  upon 
a  man  in  a  city  like  Norfolk  or  Richmond  or  Danville  or  Lynchburg,  that  is  imposed 
upon  one  in  a  small  village?    Therefore,  I  say  that,  if  I  am  in  error  in  my  supposition 


2918  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


that  the  supposed  reduction  in  the  cost  of  administering  the  State  government  should 
not  fully  meet  the  $62,000  lacking  to  make  up  the  $437,000,  after  you  have  taken  into 
consideration  the  increased  income  from  the  tax  on  corporations,  and  the  annual  sur- 
plus revenues  of  the  State  of  Virginia,  you  have  your  remedy  direct,  simple  and  plain 
and  upon  a  traflBc  and  business  that  ought  to  bear  what  it  reasonably  will  bear. 

But  I  submit,  Mr.  President  and  gentlemen  of  the  Convention,  that  the  comparison 
I  have  made  is  not  a  fair  test.  I  have  taken  the  annual  surplus  revenues  for  Virginia 
for  six  years  back,  in  order  that  there  might  be  given  to  the  opposition  of  this  move- 
ment the  benefit  of  every  possible  doubt  as  to  the  surplus  revenue.  Three  years  back 
is  the  proper  criterion,  because  while  similar  circumstances  and  conditions  existed  as 
to  the  outgo  of  the  State,  the  reduction  measures  having  been  put  into  effect  by  the 
friends  of  this  Convention  movement,  similar  conditions  did  not  exist  as  to  the  col- 
lection of  taxes. 

Mr.  Barbour:  In  your  estimate  here  of  the  average  surplus  for  the  last  six  years, 
have  you  taken  into  consideration  the  increased  interest  rate? 

Mr.  Withers:    Yes,  sir;  I  added  that  in.    That  is  included  in  one  of  the  estimates. 
As  I  started  to  say,  the  conditions  as  to  outgo  have  been  nearly  similar  for  the 
last  six  years,  but  not  as  to  income,  because  the  act  known  as  the  "land  grabbers"  act, 
prepared  mainly  by  a  distinguished  member  of  this  Convention,  has  been  elective,  not 
merely  in  bringing  about  the  prompt  payment  of  taxes  by  individuals  who  had  let  them 
go  by  year  after  year,  but  also  in  bringing  about  the  payment  of  taxes  on  lands  owned 
by  corporations  that  had  not  paid  taxes  for  years  and  years,  and  that  never  intended 
to  pay  them  until  it  became  necessary  to  do  so  in  order  to  sell  them.    There  is  an 
instance  in  my  town  where  $700  was  collected  from  a  man  named  Green,  trustee,  and 
he  had  apparently  owned  the  land  for  ten  years.    Nobody  knew  who  Douglas  Green, 
trustee,  was,  and  nobody  could  collect  the  taxes.   When  this  law  went  into  effect  they 
were  at  once  paid.    Therefore,  I  say,  that  the  proper  criterion  as  to  the  annual  surplus 
of  this  State  would  be  to  take  it  for  the  period  of  the  last  three  years.    During  that 
period  the  annual  surplus  has  amounted  to  $201,000.    Let  us  take  the  increased  amount 
brought  about  by  the  franchise  tax  proposed  by  the  committee,  add  the  annual  surplus 
revenue  of  $201,000,  and  you  have  $451,000  of  revenue  wherewith  to  meet  this  reduc- 
tion of  $437,000  per  annum.    So  you  can  take  either  horn  of  the  dilemma  you  choose, 
and  estimate  on  the  six  year  surplus  or  on  the  three  year  surplus.    But  it  will  be 
argued  that  the  capitation  taxes  are  going  to  amount  to  nothing.    If  that  is  true,  then 
the  question  of  suffrage  is  settled.   We  are  now  losing  one  to  two  hundred  thousand 
dollars  a  year  by  reason  of  capitation  taxes,    I  would  call  the  attention  of  the  mem- 
bers of  this  Convention  to  the  fact  that  last  year  they  did  not  amount  to  but  betv/een 
$254,000  and  $255,000.    Let  us  see  v/hat  the  facts  are  as  to  capitation  taxes.  The 
white  polls,  in  the  State  of  Virginia,  as  reported  by  the  Auditor,  amounted  last  year 
to  260,016.    The  colored  polls  amounted  to  125,788.    The  total  amounted  to  385,804. 
capitation  tax  collected  amounted  to  $254,819.99;  so  that,  according  to  the  returns,  not 
a  negro  paid  a  capitation  tax  in  the  State  of  Virginia  in  the  year  1901.    If  you  take 
the  mere  number  into  consideration.    Not  a  negro  paid  a  capitation  tax  or  a  poll  tax 
in  the  State  of  Virginia  last  year,  if  you  consider  it  from  the  mere  point  of  view  that 
less  capitation  taxes  were  paid  than  there  were  white  capitations  to  pay  them.  There- 
fore, unless  the  people  of  Virginia  have  decided  to  quit  voting  and  are  going  to  quit 
voting  entirely,  except  the  few  who  want  to  manage  the  affairs  of  the  State  and  hold 
the  offices,  I  say  there  is  no  real  menace  in  this  imagined  reduction  of  the  capitation 
taxes.    We  all  know  that  a  good  many  negroes  did  pay  their  capitation  taxes,  w^ 
all  know  that  the  white  people  who  do  not  pay  them  now  will  more  than  prob- 
ably not  pay  them  hereafter,  and  that  those  who  do  pay  them  now  will  probably 
pay  them  hereafter.    But,  even  if  they  do  not  pay  them,  I  say  that  the  liquor  license 
tax,  if  properly  graded,  will  meet  any  deficit,  whether  you  make  your  estimate  on  the 
basis  of  the  annual  surplus  revenue  of  the  State  for  the  last  six  years  or  upon  the 
annual  surplus  revenue  of  the  State  for  the  last  three  years. 


DEBATES  OE  THE  C0X5TITUTI0XAL  COXVEXTIOX  OE  VIEGIXIA.  2919 

Now,  Mr.  President  and  gentlemen  of  the  Convention,  I  submit  that  this  is  a  prac- 
tical business  proposition;  that  it  is  offered  with  a  view  of  a  practical  business  result; 
that  it  has  not  in  view  any  idea  of  repudiation  or  ruin,  but  has  in  view  a  reduction 
of  taxation  on  lands  and  lots,  and  the  improvements  tnereon,  and  on  tangible  personal 
property,  because  we  believe  that  it  is  justified,  and  that  those  people  who  have  paid 
their  portion  of  the  burdens  of  taxation  for  years  are  entitled  to  the  benefit  of  what- 
ever, good  we  may  have  done  by  this  Convention,  and  those  who  have  escaped  taxes, 
whether  corporations  or  individuals  should  be  made  to  keep  up  their  share,  in  order 
that  the  burdens  of  the  others  may  be  lightened.  It  will  appeal  to  every  interest  in 
the  State  of  Virginia.  It  will  appeal  to  every  business  man  in  the  State  of  Virginia. 
It  will  appeal  to  every  citizen,  it  is  practical,  reasonable  and  just,  and  it  ought  to 
appeal  to  them.  It  ought  to  be  adopted,  furthermore,  because  it  will  prevent  the  put- 
ting upon  the  State  of  Virginia  of  many  an  appropriation  that  ought  not  to  be  passed. 
It  will  prevent  the  expenditure  of  many  a  dollar  that  ought  not  to  be  expended.  It 
will  prevent  the  committing  of  many  an  extravagance  that  ought  never  to  be  committed. 
In  what  I  have  to  say  I  have  no  comment  to  offer  and  no  criticism  to  make  on  any 
measure  pending  before  the  General  Assembly.  It  would  be  improper  and  indecorous 
to  make  them.  I  have  no  desire  to  make  them.  I  am  not  in  a  position  to  make  them 
intelligently,  and  to  make  them  unintelligently  would  be  to  make  them  unjustly; 
but  I  do  submit  that  this  is  worthy  of  your  consideration,  that  it  Is  offered  with  a 
serious  intent  and  purpose;  that  it  is  offered  in  pursuance  and  in  furtherance  of  the 
intelligent  plan  which  the  friends  of  this  Convention  had  before  them  when  they  asked 
that  it  be  called,  which  they  had  before  them  when  it  was  called,  which  they  had  before 
them  during  its  entire  session.  It  is  the  capstone  of  the  building  they  would  fain  erect. 
It  is  the  finishing  touch  of  the  proposed  reduction  of  unnecessary  officials  and  unneces- 
sary expenses,  which  had  not  been  attended  with  any  astonishing  results.  It  is  the 
intelligent  and  fitting  conclusion  to  that  theory  of  Virginia  government  which  says 
that  you  have  too  many  people  to  pay  and  too  many  appropriations  to  make.  Reduce 
it  to  a  business  basis.  Make  your  appropriations  effective.  See  that  they  are  properly 
and  well  spent.  Cut  off  all  that  are  unnecessary  and  then  give  the  people  the  benefit 
of  these  reductions — do  not  give  the  people  the  benefit  of  more  appropriations,  do  not 
give  the  people  the  benefit  of  unnecessary  expenses,  do  not  give  the  people  the  benefit 
of  anything  except  what  they  are  entitled  to,  to-wit,  the  benefit  of  lightening  the  burden 
of  those  who  pay  the  taxes  and  have  paid  in  the  past  more  than  their  just  proportion 
thereof. 

So,  Mr.  President,  if  I  may  be  permitted  to  sum  up  in  conclusion,  I  believe  that 
this  is  justified  and  sustained  by  these  facts  and  reasons:  First,  it  will  give  the  work 
of  this  Convention  a  fair  test  before  the  people.  The  reduction  of  the  tax  rate  will 
prohibit  even  a  hostile  Legislature  .from  trying  to  discredit  the  work  of  this  Conven- 
tion. 

Mr.  Meredith:  You  have  given  so  many  figures  that  I  possibly  may  have  missed 
some  of  them.    What  is  the  balance,  after  your  calculations? 

Mr.  Withers.  Taking  the  annual  surplus  revenue  for  six  years,  and  including  the 
increase  from  the  franchise  tax  on  corporations,  as  contained  in  the  report  of  the 
Committee  on  Taxation  and  Finance,  it  would  amount  to  $375,000,  as  against  $437,000 
reduction  of  taxation,  leaving  a  balance  of  $62,000  to  be  accounted  for,  which  I  submit 
will  be  met  by  the  reduction  in  the  expenses  of  the  government  under  the  new  Consti- 
tution, or  by  a  graded  liquor  license.  I  have  not  calculated  those  reductions,  and  I 
have  not  calculated  the  graded  liquor  license  because  it  is  a  matter  of  detail  as  to  one 
and  a  matter  of  calculation  purely  as  to  the  other.  We  ean  get  the  reports  on  the 
judiciary  and  legislative  branches  of  the  government  and  get,  almost  to  a  cent,  what 
the  reduction  will  be  as  compared  with  the  past.  But  I  contend  the  past  is  not  the  pro- 
per criterion,  because  the  new  system  will  bring  about  such  an  administration  of  both 
departments  of  the  government  as  to  produce  a  larger  saving  than  would  appear  from 


2920  DEBATES  OF  THE  COIsTSTITUTION"AL  COlNrVENTION  OF  VIRGIJ^IA. 

past  history.  For  instance,  a  legislative  session  costs  about  $101,000.  It  will  be  cut 
off  one-third.  That  includes  the  increased  cost  of  printing.  I  contend  that  the  item 
of  printing  will  be  decreased  more  than  one-third,  because  the  bulk  of  our  legislative 
reports  are  private  acts.  The  answer  may  be  that  everybody  pays  to  have  his  own  act 
printed.  I  know  that,  but  I  know  that  the  State  pays  for  putting  that  act  into  the 
reports  of  the  General  Assembly,  and  I  believe  that  two-thirds  or  three-fourths  of  the 
printed  acts  will  be  eliminated  by  excluding  private  incorporations  and  private  relief  bills. 

If  you  take  the  three  years'  surplus  revenue  as  a  criterion  you  will  have  $451,-000 
of  revenue  and  surplus,  as  against  $437,000  reduction. 

Mr.  Keezell:  Did  you  take  into  calculation,  in  estimating  the  average  surplus, 
the  fact  that  during  the  last  three  years  the  State  has  purchased  out  of  the  current 
revenue  $500,000  of  securities,  which  are  now  to  the  credit  of  the  sinking  fund? 

Mr.  Withers:  I  knew  it  had  purchased  a  large  amount,  $292,000,  at  one  time,  but 
I  concluded  that  as  regular  outgo. 

Mr.  Keezell:  I  thought  I  would  call  it  to  your  attention  so  that  you  might  take  it 
into  consideration  if  you  had  not  done  so. 

Mr.  Withers:  Undoubtedly.  I  intended  calling  attention  to  it,  and  I  am  exceed- 
ingly grateful  to  my  friend  from  Rockingham,  that  he  has  enabled  me  to  call  this  fact 
to  the  attention  of  the  Convention,  that  out  of  this  outgo  for  the  last  six  or  three 
>ears,  during  which  ever  period  you  choose  to  calculate  it,  there  are  bond  purchasers 
of  half  a  million  dollars,  $292,000  purchased  at  one  time,  in  1899  or  1900,  I  do  not 
recall  which,  and  I  have  included  that  as  an  annual  expense,  so  as  to  make  the  calcu- 
lation of  the  surplus  annual  revenue  by  no  possibility  too  large.  You  can  see,  if  you 
take  $500,000  and  divide  it  by  six  or  by  three  that  you  will  increase  the  surplus  annual 
revenue  by  just  exactly  that  proportion,  in  the  one  instance  $80,000  and  in  the  other 
instance  $166,000. 

Mr.  R.  Walton  Moore:  Does  not  the  gentlem.an  think  that  we  should  retain  that 
policy? 

Mr.  Withers.  Undoubtedly,  sir.  I  do  think  we  should  maintain  that  policy  but  I 
do  not  observe,  in  the  hue  and  cry  to  get  rid  of  the  surplus,  a  solitary  suggestion  to 
purchase  bonds  out  of  it — not  one.  It  may  be  argued — and  I  am  glad  my  attention  has 
been  called  to  it  by  the  gentleman  from  Richmond  (Mr.  Pollard);  and  I  will  say  this 
before  I  sum  up — that  the  school  revenues  will  be  affected  by  reason  of  the  provisions 
of  the  report  of  the  Committee  on  Education.  I  do  not  think  so  because  of  the  fact, 
first,  that  intangible  personal  property  and  banks  are  not  affected;  secondly,  that  if  it 
Is  affected  a  two  and  a  half  per  cent,  rate  can  be  permitted  to  be  taken  from  the  pen- 
sions, because  two  and  a  half  per  cent,  will  pay  all  the  pensions  in  excess  of  the  annual 
appropriations  already  made  that  are  proposed  to  be  paid  under  the  new  bill  and  meet 
the  demands  of  the  Confederate  soldiers;  or  you  can  make  it  two  per  cent,  for  pen- 
sions and  leave  a  three  per  cent,  special  tax  for  schools;  but  my  idea  in  providing  for 
special  taxes  for  such  purposes  is  to  let  the  people  of  Virginia  know  for  what  purposes 
their  taxes  are  levied,  and  when  they  know  exactly  what  they  have  to  pay  for  pensions 
they  will  say  how  much  they  want  to  pay. 

There  is  no  use  in  talking  about  the  Confederate  soldier.  My  father  was  a  Con- 
federate soldier  and  my  childhood  was  hard  upon  the  verge  of  those  tremendous  times. 
My  most  thrilling  recollections  are  the  tales  that  Confederate  soldiers  have  told  me 
of  the  immortal  heroism  and  glory  of  the  men  who  fought  in  gray.  No  man  can 
stand  ahead  of  me  in  admiration  for  that  thin  gray  line  whose  continuity  is  forever 
broken.  No  man  will  be  more  ready  to  bear  a  heavier  burden  of  taxation  in  order  to 
relieve  the  survivors  of  that  war  which  has  put  a  new  page  of  glory  in  the  records  of 
history;  but  I  do  not  believe  that  under  the  guise  of  increased  appropriations  to  pen- 
sions, unnecessary  burdens  should  be  kept  upon  the  people.  I  think  they  should  have 
the  opportunity  to  say  how  much  they  are  willing  to  pay,  and  they  will  deal  most  gen- 
erously with  those  who  put  their  lives  in  danger  and  were  maimed  for  life  for  the 
sake  of  their  country  and  their  State. 


DEBATES  OF  THE  COXSIITUTIOXAL  COXYEXTIOX  OE  VIRGIXIA. 


2921 


Let  me  say  also  that  on  the  subject  of  education  I  yield  to  none  in  the  recognition 
of  the  necessity  for  it,  in  the  recognition  of  the  dire  need  for  it.  I  yield  to  none  in 
my  earnest  desire  to  promote  all  sorts  of  proper  education  for  the  youth  of  this  land. 
I  make  this  statement  without  fear  of  successful  contradiction,  that  while  I  believe  it 
is  a  fact  that  Virginia  appropriates  more  to  her  public  schools  in  proportion  to  her 
wealth  and  ability  than  any  other  State  of  this  Union,  she  gets  as  poor  a  return  therefor 
as  any  of  them,  and  that  what  is  to  be  done  is  to  make  the  public  school  appropriations 
more  efficient  before  they  are  rendered  unnecessarily  larger.  Then  if  there  is  any  need 
for  Ejore,  prepare  to  give  it  to  them. 

So  that,  Mr.  President,  I  respectfully  beg  leave  to  sum  up  the  justifications  and 
reasons  for  this  motion. 

First,  it  will  give  an  opportunity  for  a  fair  test  of  the  work  of  this  Convention. 
It  will  give  an  opportunity  to  its  friends  to  show  the  wisdom  of  it  and  it  will  give  an 
opportunity  to  its  enemies  to  show  its  unwisdom,  if  such  there  be.  You  have  observed 
that  throughout  the  Commonwealth  of  Virginia  before  the  Constitution  v/as  a  perfected 
instrument,  and  before  many  parts  of  it  were  agreed  upon,  there  was  a  systematic  howl, 
from  whom?  The  men  who  fought  it  to  the  death  and  got  whipped  before  it  was 
called,  and  who  now,  without  even  knowing  what  it  is,  want  to  discredit  it.  Nothing 
will  be  a  more  splendid  play  into  their  hands  than  to  put  it  into  their  power  to  dis- 
credit it  without  a  trial,  because  they  are  afraid  to  give  it  a  trial. 

What  they  seek  and  desire  is  to  have  the  work  of  the  Constitutional  Convention, 
the  perfected  instrument,  discredited,  nullified  and  rendered  absurd  before  an  oppor- 
tunity is  given  to  the  people  to  see  it  tested  and  tried,  and  to  see  whether  it  has  the 
mer!t  we  claim,  for  it. 

Therefore,  I  say  that  as  a  first  reason  we  should  put  such  a  brake  upon  these  gen- 
tlemen who  have  never  admitted  they  were  wrong  or  that  we  even  approached  the  sus- 
picion of  being  right  as  will  disable  them  from  discrediting  the  work  of  the  Conven- 
tion by  hostile  legislation,  by  extravagant  appropriations,  by  unnecessary  burdens  fas- 
tened upon  the  people,  and  then  to  turn  and  say:  "Why,  there  is  your  Convention's 
work.  Your  expenses  have  not  been  reduced,  your  taxes  have  not  been  reduced,  but 
both  have  been  increased." 

Secondl3^  it  will  give  to  the  citizens  of  the  State  the  benefit  of  our  work,  if 
the  work  is  good.  It  can  do  them  no  harm  if  it  is  bad.  If  we  have  put  the  burden 
of  taxes  vshere  they  belong,  or  rather  if  we  have  made  corporations  pay  a  just  pro- 
portion of  taxes  which  we  claim  they  have  not  done  before,  and  we  have  a  large  annual 
surplus  revenue  in  the  treasur3^  year  by  jbry,  why  then  we  should  give  to  those  citi- 
zens who  have  borne  more  than  their  share  of  the  burden  at  least  relief  therefrom  and 
we  should  give,  if  we  have  confidence  in  our.  work,  a  substantial  assurance  to  the 
citizens  of  Virginia  that  that  work  is  good. 

Thirdljs  it  will  give  to  those  who  have  borne  more  than  their  share  of  the  bur- 
dens of  government  an  opportunity  to  be  equalized  with  those  who  have  not  borne 
a  just  proportion  of  the  burdens  of  government.  It  is  a  perfectly  just  proposition  that 
if  I,  owning  property  by  the  side  of  and  of  equal  value  with  my  friend  from  Culpeper, 
have  for  years  and  years  escaped  a  proper  assessment  thereof,  while  he  has  had  to  pay 
upon  a  just  assessment,  we  should  be  equalized,  if  such  could  possibly  be  done,  by 
allowing  mine  to  be  kept  up  and  his  to  be  decreased.  Now,  under  the  classification 
theory  and  under  the  report  of  the  Committee  on  Taxation  and  Finance,  exactly  that 
thing  can  be  done  between  those  who  have  paid  more  than  their  just  share  and  those 
who  have  paid  less  than  their  just  share,  and,  therefore,  it  will  relieve  to  some  extent 
the  burdens  of  those  who  have  borne  more  than  their  share  and  make  those  who  have 
borne  less  contribute  a  due  proportion  thereof. 

Fourth.  Whether  or  not  the  plan  of  the  Committee  on  Taxation  and  Finance, 
which  I  heartily  and  cordially  supported,  is  wise  or  unwise,  !t  will  insure  just  corpor- 
ate taxation.  It  will  insure  at  the  end  of  this  period  of  ten  years  either  a  continuance 
184 — Const.  Deb. 


2932 


DEBATES  OF  THE  CONSTITUTIONAL  COasrVENTION-  OF  VIRGINIA. 


of  the  system  we  imposed  or  it  will  insure  a  substitute  equally  effective  and  equally 
just.  Therefore,  I  say,  Mr.  President,  that  reason  should  commend  itself  to  you  who 
do  not  want  to  do  corporations  an  injustice,  but  who  do  want  to  deal  justly  as  be- 
tween citizen  and  citizen,  be  he  natural  or  artificial. 

Fifth,  it  will  prevent— and  this  is  a  weakness  of  human  nature  and  not  of  the  Gen- 
eral Assembly — many  reckless  expenditures  and  will  prevent  fixing  unnecessary  appro- 
priations upon  the  treasury.  That  is  as  human  a  thing  to  do  as  for  a  secret  order  to 
be  not  too  discriminating  in  the  charity  that  it  .  deals  out  to  those  who  claim  they  are 
the  worthy  objects  of  it.  It  is  the  hardest  matter  in  the  world  for  even  a  man  with 
iron  in  his  soul  to  stand  in  a  Legislature  or  General  Assembly  and  refuse  requests 
from  many  worthy  and  excellent  institutions,  organizations,  societies  and  for  many 
admirable  purposes,  though  they  may  be  totally  at  variance,  so  far  as  a  State  appro- 
priation to  them  is  concerned,  with  every  principle  of  sound  government.  It  will 
cause  a  wise  analysis  and  examination  of  such  requests,  and  it  will  prevent  fastening 
on  Virginia  unnecessary  appropriations,  to  get  rid  of  which  will  be  a  heavier  burden 
than  to  obtain  the  consent  of  the  people  to  an  increased  tax  rate  to  meet  it. 

We  stand  in  no  danger  from  the  intelligence  of  the  people  of  this  State.  They  will 
understand  that  this  is  a  brake  upon  any  attempt  to  unfairly  discredit  this  Convention's 
work  before  it  has  had  a  fair  test;  and  if  this  Convention's  work  is  what  we  believe 
it  to  be,  this  reduction  of  taxation  will  not  need  to  be  restored  to  its  former  rate. 

Lastly,  it  will  confuse  and  confound  the  opponents  of  the  Convention  and  its  work, 
who  have  never  contributed  thereto,  who  have  stood  out  howling  against  it  as  of  some 
monster  let  loose  in  the  land  to  seek  and  devour  all  whom  he  might  find,  and  it  will 
show  them  that  we  have  not  only  done  something,  but  that  we  know  we  have,  and 
having  confidence  in  it,  are  willing  to  show  the  fruits  thereof. 

ft,  therefore,  Mr.  President,  commends  itself  to  me  as  a  practical  business  proposi- 
tion, without  sentiment,  without  emotion — I  have  tried  to  discuss  it  as  such—without 
dragging  into  it  the  questions  of  charity  and  benevolence,  the  questions  of  the  unfor- 
tunates in  the  hospitals,  the  Confederate  soldier,  and  the  child  who  is  ignorant  and  un- 
educated. We  all  recognize  the  necessity  for  the  proper  support  and  maintenance  of 
every  one  of  these  particular  charities.  We  acknowledge  it,  but  there  stands  out  this 
principle  of  government,  that  all  unnecessary  appropriations  and  wasteful  extrava- 
gances are  not  merely  unwise,  but  tend  to  corruption.  When  there  was  a  surplus  in 
the  Federal  treasury  the  Republican  party  adopted  the  principle  of  getting  rid  of  it, 
not  by  alleviating  the  burdens  of  the  people,  but  by  spending  the  surplus;  and  I  would 
respectfully  submit  that  when  there  is  a  surplus  in  our  treasury  it  is  not  a  burden,  not 
a  danger,  not  a  disease,  but  it  is  the  means  whereby  we  can  reduce  the  burden  of  our 
interest  by  retiring  more  of  our  debt,  and  it  is  a  guarantee  to  our  creditors  of  the  wis- 
dom and  soundness  of  our  administration  and  managemenmt  of  our  affairs,  and  will 
further  promote  the  financial  credit  and  standing'  of  the  State.  Whatever  else  may  be 
said  of  this  proposition,  so  long  as  we  can  protect  our  interest,  meet  our  other  obliga- 
tions and  administer  our  government  efficiently  and  economically,  only  to  that  extent 
should  we  wring  taxes  from  the  people,  and  from  all  amounts  in  excess  thereof  they 
should  be  relieved. 

I  thank  the  Convention  for  their  attention. 

Mr.  R.  Walton  Moore:  Mr.  President,  as  a  member  of  the  Committee  on  Taxation 
and  Finance  I  desire  to  occupy  the  attention  of  the  Convention  for  a  few  minutes  in 
order  to  refer  to  some  figures  that  have  been  given  by  my  distinguished  friend  from 
Danville  (Mr.  Withers). 

If  I  were  a  member  of  the  General  Assembly  I  would  vote  for  this  proposition 
if  it  were  submitted  there,  or  for  some  similar  proposition,  but  it  does  not  seem 
to  me  it  is  a  proposition  that  ought  to  be  entertained  by  a  constitutional  con- 
vention. It  certainly  is  a  thing  without  precedent  in  the  State  of  Virginia,  for 
a   constitutional   convention  to   fix   a  tax   rate  either  for  five   years,   or  for  ten 


DEBATES  OF  THE  COXSTIT UTIOXAL  COXVEXTIOX  OF  YIEGIXIA.  2923 

3^ears,  or  for  an  indefinite  period.  I  believe  it  is  a  thing  almost  without  prece- 
dent in  any  of  the  States  of  this  Union  for  a  Constitutional  Convention  to  attempt  to 
do  a  thing  of  that  sort.  It  has  been  considered  proper  heretofore  everywhere  to  leave 
the  matter  of  the  tax  rate  to  be  fixed  by  the  General  Assembly,  composed  of  the  repre- 
sentatives of  the  people  in  the  legislative  department  of  the  government. 

What  is  the  proposition?  It  is  that  we  shall  make  a  reduction  of  the  revenue  by  a 
rigid  reduction  of  the  tax  rate,  that  provision  to  last  for  a  period  of  at  least  five 
years.  That  will  result  how?  It  will  admittedly  cut  down  the  revenue  of  the  State 
at  least  $437,000.  The  revenue  is  to  be  diminished  $437,000;  but  the  cut  may  be  even 
greater,  for  in  the  sections  already  adopted  we  have  declared  that  when  we  impose  a 
franchise  tax  upon  the  railroad  and  canal  corporations  the  stock  of  these  companies 
shall  be  exempted  in  the  hands  of  individual  owners.  Who  can  tell  to  what  extent 
that  exemption  may  add  to  the  cut  of  $437,000? 

So  in  the  very  outset  it  is  impossible  for  any  member  of  this  Convention  to  accur- 
ately say  what  will  be  the  loss  of  revenue  if  this  proposition  carries.  But  anyhow  it 
will  be  necessary  to  cover  this  reduction  of  $437,000,  even  if  it  is  limited  to  that  amount. 
How  are  Vve  to  cover  it?  My  friend  from  Danville  says  v/e  will  meet  it  in  part  by 
the  surplus  of  about  $175,000  a  year.  But  here  is  another  doubt.  What  member  of  this 
body,  when  he  considers  the  growing  needs  and  demands  of  a  State  like  Virginia,  the 
increased  expenses  that  are  naturally  and  legitimately  from  time  to  time  imposed 
upon  the  treasury  can  say  that  we  are  going  to  maintain  an  average  annual  surplus  of 
$175,000?  Are  not  expenses  multiplying?  We  look  to  the  penitentiary  and  we  recog- 
nize that  there  must  be  a  heavy  expenditure.  We  look  to  the  Williamsburg  hospital 
and  we  find  a  demand  there  that  must  be  responded  to.  In  various  other  directions 
there  are  calls  for  money  that  cannot  be  allowed  to  go  unheeded.  There  is  nobody, 
I  repeat,  who  has  enough  foresight  to  be  able  to  assert  that  for  the  next  five  years  we 
can  count  upon  an  average  annual  balance  of  $175,000.  I  am  talking  about  the  doubts 
that  environ  this  matter.  So,  Mr.  President,  we  cover  the  $437,000  partly  by  a  shift- 
ing and  uncertain  annual  surplus.  Then  the  gentleman  asks  us  to  rely  on  a  saving 
under  the  new  judiciary  plan.  I  meet  him  with  the  statement  that  so  far  as  fixed 
charges  are  concerned,  there  will  be  a  heavier  burden  upon  the  State  treasury  under  the 
judiciary  article  we  have  adopted  than  there  is  under  the  Constitution  and  laws  in 
force.  Under  the  judiciary  article  we  have  adopted  a  good  deal  of  the  expense  is 
transferred  from  the  cities  and  counties  to  the  State.  The  gentlemmen  of  the  Judiciary 
Committee  will  tell  you,  I  think,  that  so  far  as  the  fixed  charges  are  concerned,  the 
State  will  be  required  to  pay  from  $6,000  to  $10,000  more  hereafter  than  now,  and  this 
estimate  does  not  reckon  with  the  possibility  of  the  organization  of  new  circuits. 

So  there  is  nothing  in  the  judiciary  article  that  will  help  us  out  on  the  loss  of 
$437,000.  The  gentleman  predicts  that  we  will  save  in  the  Legislative  Department. 
I  hope  and  believe  he  is  correct,  but  a.t  this  time  we  cannot  be  certain.  He  predicts 
that  we  will  save  in  other  departments  of  the  government.  I  trust  so,  but  it  is  largely 
conjectural.  So  it  seems  that  against  the  $437,000  leaving  out  of  view  the  estimated 
annual  surplus,  that  we  have  nothing  definite  at  all  to  count  upon  except  the  increased 
revenue  from  the  railroad  and  canal  corporations.  What  is  that?  About  $250,000  we 
estimate.  But  are  we  sure  of  it?  In  what  shape  is  it?  It  is  in  the  shape  of  a  tax 
of  one  per  cent,  upon  the  gross  earnings  of  those  corporations  which  now  amount  in  the 
aggregate  to  something  like  $2G,000.000  in  this  State.  But  when  the  earnings  fall  off 
the  treasury  will  suffer.  That  in. two  or  three  years  the  wave  of  prosperity  we  have 
had  flowing  upon  us  recedes,  and  that  the  earnings  of  these  corporations  are  much  less 
than  at  present.  Then  we  will  not  be  able  to  apply  this  entire  item  of  $200,000  to 
$250,000  that  is  now  set  off  against  the  $437,000  in  reduction. 

Now,  what  more  is  needed  to  show  the  doubt  that  environs  this  whole  subject, 
when  you  have  upon  the  one  hand  a  cut  of  $437,000  and  you  have  upon  the  other  hand 
only  a  conjectural  annual  surplus  of  $175,000,  a  conjectural  increase  from  the  rail- 
road and  canal  companies  and  a  hoped  for  increase  in  other  lines. 


2024 


DEBATES  OF  THE  COXSTITUTIOXAL  COITVEiS'TIOX  OF  VIRGINIA. 


Mr.  President,  I  do  not  find  that  there  is  anybody  v,^ho  is  now  charged  with  the 
responsibility  of  conducting  the  affairs  of  the  State  government  who  thinks  it  wonld 
be  safe  for  the  Constitutional  Convention  to  adopt  this  proposition.  We  have  figures 
from  the  offices  in  the  library  building,  but  no  word  of  approval  from  that  source. 

r.Ir.  Withers:  Did  you  ever  know  any  State  or  National  Government  executive 
officer  who  thought  his  budget  should  be  reduced? 

Mr.  R.  Walton  Moore.  Yes,  sir;  I  have.  Tiie  General  Assembly  some  time  ago 
reduced  the  tax  rate,  and  did  it,  I  think,  v/ith  the  approbation  of  the  basement  officers. 
Those  who  have  a  thorough  familiarity  with  the  financial  condition  of  the  State  are 
admittedly  people  v\^hose  opinion  is  entitled  to  more  or  less  respect. 

Again,  Mr.  President,  this  committee,  whose  report  my  friend  has  done  us  the 
honor  of  commending,  has  unanimously  opposed  this,  proposition.  It  was  considered 
in  the  committee,  and  what  does  the  report  say?  Here  is  the  language:  "It  has  been 
suggested  that  the  article  should  provide  for  the  reduction  cf  the  present  rate  of  taxa- 
tion for  State  purposes,  namely,  40  cents  on  the  $100" — but  the  committee  has  de- 
clined to  thus  invade  what  it  regards  as  the  legitimate  province  of  the  General  As- 
sembly. The  committee,  however,  desires  to  state  with  emphasis  that  the  increased 
revenue  provided  by  the  article  nov/  proposed,  and  the  saving  to  be  made  in  several 
directions  hj  the  new  Constitution,  will  enable  the  General  Assembly  to  very  mate- 
rially reduce  the  tax  rate  and  lighten  the  burdens  which  rest  upon  the  mass  of  the 
people." 

When  I  signed  the  report  I  believed,  and  I  belie^^  now,  that  the  General  Assembly 
will  be  put  in  the  position  by  the  work  of  this  Convention  to  reduce  the  tax  rate;  but 
the  General  Assembly''  is  one  body,  and  this  is  another  body.  If  we  make  a  mistake 
by  adopting  this  proposition  there  is  no  correction  and  no  redress  until  the  period  of 
its  operation  expires.  If  the  General  Assembly  makes  a  reduction  there  is  the  oppor- 
tunity for  correction  at  the  regular  session  of  that  body,  or  at  an  extra  session  in 
the  event  that  a  reversal  or  correction  becomes  necessary. 

Mr.  President,  I  am  not  an  opponent  of  the  Constitution.  My  ardent  desire  is 
that  our  work  shall  succeed  and  bring  blessings  to  the  people  of  the  Commonwealth, 
but  I  do  not  conceive  that  it  is  our  business  to  electioneer  for  the  acceptance  of  the 
Constitution  by  doing  a  thing  which  is  so  obviously  outside  of  our  jurisdiction.  What 
a,re  w^e  here  for?  We  are  commissioned  to  revise  the  organic  law,  to  frame  a  new  Con- 
stitution embracing  fundamental  principles  and  embodying  permanent  policies  which 
we  think  will  be  beneficial.  Having  done  that,  our  duty  is  discharged;  we  have  per- 
formed the  task  entrusted  to  us,  and  the  final  verdict  is  with  others. 

Mr,  President,  it  seems  to  me  that  no  amount  of  elaboration  could  show  how  very 
inexpedient  and  injudicious  it  v^ould  be  to  adopt  this  proposition.  I  do  not  claim  it 
would  bring  ruin.  I  do  not  claim  it  would  necessarily  bring  discredit  upon  the  State 
by  involving  a  repudiation  of  either  principal  or  interest  of  our  obligations;  but  I  do 
claim  that  we  enter  upon  a  dangerous  experiment  when,  depending  upon  estimates  and 
conjectures  and  guesses,  we  propose  to  write  it  into  the  organic  law  that  the  tax 
rs^te  shall  be  reduced.  I  know  there  is  a  charm  in  any  proposition  to  reduce  the  tax 
rate.  There  are  various  considerations  that  press  upon  representative  m_en  v/hen  that 
proposition  is  made,  inclining  them  to  support  it.  It  is  a  thankless  thing,  on  the  other 
hand,  to  resist  a  proposition  of  that  character.  But  whatever  the  consequences,  I 
protest  against  writing  in  the  organic  law  such  a  declaration  as  our  fathers  never 
dreamed  of  writing  into  the  Constitutions  of  1776,  1829-80,  or  1850-51.  I  bass  my  protest 
upon  experience,  and  upon  the  reasons  that  spring  from  the  very  doubtful  case  pre- 
sented by  the  supporters  of  this  measure. 

Mr.  Barbour:  What  is  the  difference  in  principle  between  fixing  the  income  tax 
in  Section  11  and  this  proposition  to  fix  the  tax  on  general  property  in  the  article  pro- 
posed by  the  gentleman  from  Danville? 

Mr.  R.  Walton  Moore:    So  far  as  theory  and  principle  are  concerned,  there  is  not 


DEBATES  OE  THE  COXSTITUTIOXAL  CONVEXTIOIT  OF  VIEGIXIA. 


2925 


one  man  in  this  body  who  has  acted  strictly  upon  any  theory  in  framing  this  Consti- 
tution. The  justification  for  adopting  this  ten-year  plan  was  that  we  immediately  get 
from  the  railroad  companies,  without  waiting  upon  the  action  of  the  Legislature,  from 
$200,000  to  $250,000;  and  there  cannot  be  any  conjectures  about  it;  there  cannot  be  any 
danger  about  it.  It  is.  upon  the  credit  side  of  our  account.  It  is  that  much  money 
that  we  bring  back  into  the  treasury;  but  when  we  say  vv^e  v/ill  reduce  the  tax  rate 
by  a  constitutional  provision,  we  are  unY^^isely  experimenting  with  the  finances  of  the 
State  and  the  interests  of  the  people. 

Mr.  Barbour:  Then  I  understand  the  distinction  in  principle  which  the  gentle- 
man makes  to  be  that  it  is  all  right  to  increase  the  tax  rate  in  the  Constitution,  but 
not  to  decrease  it. 

Mr.  R.  Yv^alton  Moore:  I  do  not  say  so.  I  say  that,  as  far  as  the  railroad  com- 
panies are  concerned,  in  order  to  insure  an  increase  on  the  return  it  was  determined, 
as  has  been  stated  time  and  time  again  here  by  the  gentleman  from  PJchmond  (Mr. 
Meredith)  that  we  Y/ould  put  this  plan  in  as  a  sort  of  compromise;  but  it  would  be 
an  entirely  different  thing  to  put  a  reduction  of  the  tax  rate  in  the  Constitution. 

Mr.  Withers.  In  a  statement  with  reference  to  the  cost  of  the  judiciary,  I  do  not 
think  that  the  minimum  salaries  of  the  circuit  judges  had  been  decreased. 

Mr.  R.  Walton  Moore:  Yes,  sir,  I  did.  I  am  not  a  member  of  the  Judiciary  Com- 
mittee, but  I  think  I  am  safe  in  stating  that  the  judiciary  sj'stem  will  inevitably  cost 
the  State  treasury  under  the  new  Constitution  more  than  the  present  judiciary  system 
costs. 

Mr.  Meredith:  In  so  far  as  the  salaries  of  the  judges  are  concerned,  but  not  the 
incidental  expenses,  which  are  what  the  gentleman  from  Danville  referred  to. 

Mr.  R.  Walton  Moore:  We  all  know  when  v/e  come  to  the  matter  of  incidental  ex- 
penses that  we  are  in  the  clouds.  Yv'e  cannot  tell  what  incidental  expenses  will  be 
gotten  rid  of  by  the  new  Constitution.  We  ought  not  to  found  a  reduction  of  the  tax 
rate  upon  possibilities  or  probabilities.  We  should  ,not  take  this  step  if  there  is  any 
uncertainty. 

Mr.  Keezell:  Mr.  President,  I  do  not  desire  to  detain  the  Convention  but  a  very 
fey/  moments  in  reference  to  this  proposition.  I  must  confess  when  I  look  at  it  I 
necessarily  have  to  look  at  it  from  two  standpoints.  I  believe  it  is  more  properly  a 
legislative  matter  than  a  constitutional  one;  but  when  I  bring  into  consideration  my 
experience  as  a  member  of  the  General  Assembly,  and  know  what  is  almost  sure  to  be 
the  result  in  that  body,  then  my  faith  as  to  v/hether  it  ought  to  be  a  matter  of  legis- 
lation entirely  is  very  much  shaken. 

I  had  occasion  once  before  in  discussion  upon  this  floor  to  state  that  I  did  not 
think  there  was  a  more  dangerous  thing  that  could  confront  the  State  than  a  plethoric 
treasury.  If  gentlemen  of  this  Convention  had  the  time  and  the  inclination  to  attend 
the  meetings  of  the  Finance  Committee  of  the  present  General  Assembly,  I  think  they 
might  be  convinced  of  the  dangers  which  do  attend  a  plethoric  treasury.  From  almost 
every  section  of  this  Commonwealth,  from  every  interest,  there  comes  a  clamor  for 
increased  appropriations,  for  increase  of  salaries,  for  money  out  of  the  treasuiT;  and 
my  experience  is  that  vvhen  this  clamor  comes  to  the  representatives  of  the  people  from 
their  immediate  constituents,  it  is  an  exceedingly  hard  matter  to  turn  down  those 
requests,  if  the  money  is  at  hand  with  which  to  meet  them.  The  danger  is  and  has 
always  been  that  from  a  small  beginning,  apparently,  just  like  starting  a  snov/  ball 
roll  down  a  slope,  these  appropriations  increase  year  by  3'ear,  ever  growing  larger 
and  larger.  It  is  almost  an  impossibility,  in  my  opinion,  and  w-ill  be  very  difScult,,  to 
get  any  General  Assembler  that  will  have  the  nerve  to  vote  for  a  reduction  of  taxation 
in  face  of  and  in  opposition  to  the  clamor  that  comes  up  from  all  sections  of  the  Com- 
monwealth to  the  representatives  of  the  various  constituencies  and  by  influential  con- 
stituents in  favor  of  increased  appropriations,  increased  salaries,  new  offices,  and  all 
that  sort  of  thing. 


2926  DEBATES  OF  THE  COJs^STITUTIONAL  CONVENTION  OF  VIRGINIA. 

I  say  I  believe  it  is  truly  a  legislative  function,  but  at  the  same  time  I  believe  it  is 
one  of  those  functions  which  it  is  more  difficult  for  a  General  Assembly  to  perform  than 
any  other  one  it  has.  I  have  had  some  information,  possibly,  with  reference  to  the  fin- 
ancial condition  of  the  State,  and  I  do  not  believe  there  are  any  men  or  set  of  men 
in  this  Commonwealth  who  have  any  exclusive  knowledge  about  matters  of  that  sort. 
Our  finances  are  public  property.  We  can  go  to  the  records  of  our  State  officials,  and 
any  man  of  intelligence  and  research  can  find  out  just  as  much  about  those  conditions 
as  can  the  Auditor  or  the  Treasurer  or  any  other  official.  You  can  go  back  and  search 
for  years,  and  if  you  are  a  man  of  intelligence,  you  can  come  to  just  as  safe  a  conclu- 
sion as  can  these  officials,  when  you  take  the  official  records  and  reckon  with  them 
year  after  year. 

The  figures  given  by  the  gentleman  from  Danville  are  taken  from  the  official  rec- 
ords of  the  Commonwealth,  a,nd,  so  far  as  my  information  and  knowledge  concerning 
those  figures  go,  they  are  as  absolutely  correct  as  any  figures  which  will  be  submitted 
here  by  any  official  this  State.  There  can  be  no  question  but  that  the  figures  which 
he  has  given  you,  so  far  as  the  revenues  of  the  State  are  concerned,  so  far  as  the 
expenditures  of  the  State  are  concerned,  during  the  years  which  he  has  enumerated, 
are  within  the  realm  of  conservatism,  and  are  certainly  warranted  by  the  reports  of 
your  fiscal  officers. 

Now,  as  to  the  wisdom  or  unwisdom  of  engrafting  this  provision  into  your  Consti- 
tution. There  is  a  question  which  I  think  the  members  of  the  Convention  ought  to 
weigh  and  decide  for  themselves.  So  far  as  I  am  concerned,  I  think  that  in  the  amend- 
ment which  he  has  proposed  to  his  resolution  he  has  guarded  the  only  point  about 
which  much  criticism  could  be  made.  He  has  provided  not  for  a  reduction  of  ten  cents 
on  the  $100,  or  a  reduction  of  from  forty  to  thirty  cents  absolutely,  because  he  has 
given  permission  that  in  case  the  requirements  of  the  State  may  demand  it,  there  may 
be  an  additional  tax  of  five  cents  on  the  $100  levied  for  the  purposes  of  the  needy 
Confederate  pensioners.  The  only  apprehension  this  Commonwealth  need  have,  in  my 
opinion,  is  from  that  very  source,  and  there  can  be  no  question  on  earth  about  the  con- 
servatism of  his  estimates,  so  far  as  the  receipts  and  expenditures  of  the  Common- 
wealth are  concerned,  under  all  the  conditions  which  we  have  gone  through  with  for 
the  last  ten  years,  except  that  one  item;  and  as  to  that  one  item  he  makes  a  provision 
which,  under  the  present  law,  and  under  the  proposed  addition  of  five  cents  (assum- 
ing that  it  would  be  one-half  of  the  reduction  of  $437,000  which  he  contemplated)  would 
leave  a  total  expenditure  for  pensions  of  $353,547.75  per  year  on  present  valuations. 

Mr.  Marshall:    That  includes  the  increase,  though,  of  five  per  cent. 

Mr.  Keezell.  Yes;  that  includes  the  increase  of  five  cents  on  the  $100.  As  I  un- 
derstand, his  provision  now  says  that  if  there  is  any  increase  over  and  above  the  amount 
paid  now,  which  is  $135,000,  it  may  be  provided  by  an  additional  tax  of  five  cents  on 
the  $100,  and  that  additional  tax  of  five  cents  on  the  $100  would  be  just  one-half  of 
the  reduction  of  $437,000  v/hich  he  got  by  his  reduction  of  ten  cents,  and  would  bring 
it  up  to  $353,547.75. 

What  is  the  condition  of  the  State  now,  so  far  as  your  finances  are  concerned? 
It  is  true  we  have  had  during  the  last  three  years  a  surplus  of  $1,095,174.33.  It  is  not 
true  that  all  of  that  money  is  in  the  treasury  for  the  reason  that  during  that  time 
$492,000  of  it  was  taken  to  purchase  securities  of  the  State,  amounting  to  more  than 
half  million  dollars  face  value.  Those  securities  are  in  your  treasury.  The  commis- 
sioners of  the  sinking  fund  have  charge  of  the  securities  of  the  State  to  the  amount 
of  $1,115,000,  which  are  not  dedicated  to  the  sinking  fund  under  the  provisions  of  th© 
settlement,  until  1910.  You  had,  in  addition,  on  the  first  day  of  last  October,  $826,597.96 
of  cash  in  your  treasury,  and  you  had  it  there  after  you  had  paid  the  expenses  of  an 
extra  session  of  the  General  Assembly,  and  after  you  paid  the  expenses  of  the  Consti- 
tutional Convention  up  to  the  first  day  of  October.  After  having  paid  those  extraordi- 
nary expenses  during  the  last  fiscal  year,  which  amounted  to  $91,000  in  round  num- 


£)EBATES  OF  THE  COXSTITniOXAL  COXVEXTIOX  OF  TIEGIXIA. 


292r 


bers,  you  had  $327,276.12  of  surplus  out  of  the  current  revenues  of  last  year,  making, 
all  together,  in  round  numbers  more  than  $400,000  of  surplus  revenue  that  you  would 
have  had  the  last  year  if  it  had  not  been  for  the  extraordinary  expenses  of  an  extra 
session  of  the  General  Assembly  and  the  expenses  of  the  Constitutional  Convention. 

It  is  true  that  there  commenced,  with  the  first  of  last  January,  or  the  first  of  July, 
possibly,  an  extraordinary  expense  over  and  above  what  we  have  had  in  the  years 
passed,  and  that  is  the  increased  rate  of  interest  of  one  per  cent,  on  some  eighteen  mil- 
lion dollars  of  our  debt,  which  incurs  in  round  numbers  an  increased  cost  to  this  Com- 
monwealth of  $180,000 — not  of  $180,000  necessarily,  because  a  considerable  portion  of 
that  $1,115,000  that  we  hold  of  our  own  securities  is  a  part  of  that  eighteen  million 
dollars,  and  you  are  collecting  each  year,  if  you  see  fit  to  do  it,  the  interest  and  pay- 
ing it  upon  a  debt  we  own  ourselves.  I  ought  to  have  the  exact  amount,  but  I  have  left 
it  at  my  room.  I  think,  however,  something  like  half  of  that  $1,115,000  of  the  bonds 
held  by  the  State  are  century  bonds  and  that  increase  of  one  per  cent,  on  that  amount 
comes  to  the  State,  and  the  interest  that  you  are  allowing  each  year  on  the  whole  of 
the  $1,115,000  all  of  it  comes  to  the  State,  if  you  see  fit  to  pay  for  it  or  you  can  reduce 
your  appropriations  by  that  amount,  as  you  may  see  fit.  The  increase  of  one  per  cent., 
instead  of  amounting  to  $180,000,  is  about  169.000  on  the  debt  in  the  hands  of  the 
public. 

It  is  true  that  under  the  action  of  this  General  Assembly  there  has  been  set  aside 
an  increased  amount  for  Confederate  pensions;  btit  the  amendment  of  the  gentleman 
from  Danville  guards  that  point,  so  that  cannot  embarrass  you,  because  if  it  becomes 
necessary  yoti  can  increase  your  levy  above  the  30-cent  mark  in  order  to  provide  for 
whatever  the  General  Assembly  may  do  with  reference  to  that  matter. 

So  that  it  occurs  to  me,  with,  in  round  numbers,  two  million  dollars  of  assets  that 
are  available  in  case  of  an  emergency,  there  can  be  no  danger  in  the  amendment  pro- 
posed by  the  gentleman  from  Danville  to  the  credit  of  our  State  or  impugn  the  inten- 
tion of  the  Commonwealth  to  carry  out  in  good  faith  the  payment  of  the  last  dime 
of  interest  due  her  creditors.  If  there  is  no  danger  from  that  standpoint,  then  it  re- 
solves itself  back  to  the  mere  question  whether  or  not  you  are  going  to  put  the  General 
Assembly  of  Virginia  in  a  position  in  which  they  will  be  able  to  stand  off  the  persons 
who  come  clamoring  to  their  doors  for  increased  appropriations,  as  they  stood  them 
off  in  189 5,  1896,  and  along  in  those  years,  so  that  they  can  say,  "We  have  not  the 
money,  and,  therefore,  we  cannot  yield  to  your  importunities."  or  whether  you  are 
going  to  subject  them  to  the  importunities  which,  as  I  said  before,  it  is  almost  im- 
possible not  to  yield  to. 

Mr.  Braxton:  Has  the  present  Legislature  disposed  of  any  material  part  of  this 
surplus  of  $800,000  on  hand  that  you  refer  to? 

Mr,  Keezell:  I  would  say  that,  so  far  as  that  is  concerned,  I  think  it  is  the  policy 
of  the  General  Assembly,  and  I  believe  it  is  going  to  be  their  act,  not  to  in  any  way, 
shape  or  form  countenance  any  continuing  appropriations  that  will  take  any  more  than 
the  current  revenues  to  be  expended  each  year.  There  are  necessary  some  improve- 
ments to  public  buildings,  and  matters  of  that  sort,  which  will  require  appropriations 
out  of  this  $826,000.  of  revenue  on  hand  at  the  beginning  of  the  fiscal  year,  and,  in  my 
judgment — and  I  only  give  it  as  a  matter  of  my  judgment,  because  all  of  that  matter 
is  yet  unacted  upon — the  State  ought  to  appropriate  possibly  half  of  that  $826,000  for 
certain  improvements  that  ought  to  be  made  in  this  Commonwealth.  Some  of  them 
have  been  mentioned  here  on  this  floor  by  the  gentleman  from  Fairfax  (Mr.  Moore). 
The  question  of  the  penitentiary  improvement,  the  question  of  the  Eastern  State  Hos- 
pital, the  question  of  repairing  your  Capitol,  and  needed  improvements  in  a  number 
of  these  other  institutions  might  possibly  take  anywhere  from  $300,000  to  $400,000  of 
that  surplus. 

Mr.  R.  Walton  Moore.    May  I  ask  the  gentleman  if  that  $826,000  was  not  simply 


2928 


DEBATES  OF  THE  CONSTITUTIOjSTAL  C02n  YENTIOIsT  OE  VIRGINIA. 


the  balance  that  happened  on  that  day  to  be  in  the  treasury?  Can  he  say  that  none 
of  that  balance  was  subject  to  the  operation  of  the  appropriation  laws  then  in  force? 
Is  it  not  true  that  that  just  happened  to  be  the  balance  at  that  time? 

Mr.  Keezell:  Yes;  it  is  true  that  that  happened  to  be  the  balance  just  as  it  is 
true  in  regard  to  what  happened  to  be  the  balance  of  all  the  first  of  Octobers  before 
that.  On  the  first  of  October,  1899,  we  had  a  surplus  of  $791,321.84.  On  the  first  of 
October  before  that  we  had  >?587,397.20;  and  it  is  just  what  happens  every  year  so  far 
as  the  first  day  of  October  is  cuncerned. 

Mr.  R.  Walton  Moore:  If  my  friend  will  allow  me  one  minute  further,  as  show- 
ing how  that  so-called  surplus  varies,  I  find  that  whereas  in  October  it  was  $826,000; 
on  the  4th  of  March,  three  days  ago,  it  was  only  $724,000.  To-morrov\^  it  may  b'e  a  good 
deal  less. 

Mr.  Keezell:  That  Is  easily  explained.  Nobody  contends  that  there  shall  be  in 
the  treasury  the  same  amount  every  day.  There  is  money  being  continually  checked 
out,  and  money  continually  coming  in;  but  I  say  the  history  of  the  last  number  of 
years  has  shown  that  we  have  an  increasing  surplus  each  first  day  of  October  in  the 
treasury,  and  that  it  is  the  policy  of  the  General  Assembly,  and  I  believe  it  vvdll  be 
carried  out,  not  to-  undertake  by  permanent  appropriations  or  continuing  appro- 
priations, to  take  away  one  dollar  of  thnt  S8'^f^.n00  that  was  in  the  treasury  on  the 
first  day  of  October,  but  that  they  will  keep  their  appropriations  within  the  estimated 
receipts  for  the  next  twelve  months. 

At  this  point  Mr.  Flood  took  the  chair  as  presiding  officer. 

Mr.  Withers:  I  desire  to  call  the  attention  of  the  Convention  to  the  fact  that 
the  $100,000  difference  between  the  first  of  October  and  the  fourth  of  March,  I  believe, 
is  accounted  for  by  the  payment  of  the  expenses  of  the  Constitutional  Convention  and 
of  the  session  of  the  Legislature. 

Mr.  Keezell:  I  was  going  to  come  to  that.  We  have  spent  some  extraordinary 
money  since  the  first  day  of  October,  for  the  expenses  of  the  Constitutional  Convention. 
The  expenses  of  the  General  Assembly  are  really  an  ordinary  expenditure,  because  they 
come  at  stated  intervals,  and  the  only  extraordinary  expenditure  during  that  time, 
has  been  for  the  expenses  of  the  Constitutional  Convention.  I  think  I  can  say  with 
perfect  safety  that  the  only  reduction  which  will  be  made  on  that  $826,000  which  was 
on  hand  on  the  first  day  of  October  last  v/ill  be  such  money  as  is  appropriated  for 
permanent  improvements  for  buildings  in  the  Commonv/ealth  and  possibly  what  the 
Constitutional  Convention  may  take  out. 

Mr.  President,  so  far  as  I  am  concerned,  recognizing  the  fact  that  the  people  ex- 
pect us  to  give  them  such  a  Constitution  as  is  going  to  enable  the  General  Assembly 
to  reduce  the  taxation.  I  am  going  to  take  the  risk  of  voting  to  do  it  here,  because 
I  think  there  are  safeguards  enough  around  it  so  that  there  can  be  no  possible  danger 
in  doing  so;  and  vv^hen  I  do  it,  I  say  that  as  a  member  of  the  General  Assembly  I  had 
ten  thousand  times  rather  stand  up  with  an  empty  treasury  and  have  to  look  around 
for  economies  than  to  stand  there  with  a  plethoric  treasury  and  undertake  to  ward  off 
what,  in  my  judgment,  are  improper  raids  upon  the  money  belonging  to  the  peopie. 
It  is  very  much  easier  to  protect  the  money  of  the  people  when  you  do  not  have  it 
in  abundance  than  it  is  when  you  have  it  in  abundance,  and  I  think  it  has  been  well 
said  that  there  can  be  no  greater  danger  to  the  State  than  an  overfiowing  treasury. 

I  think  that  the  General  Assembly  instead  of  considering  the  putting  of  some  such 
limitations  upon  them  as  this,  is  a  reflection  upon  them,  would  rise  up  and  call  you 
blessed,  because  you  would  be  protecting  them  from  importunities  which,  as  was  said 
by  the  gentleman  from  Danville,  few  of  us  even  with  iron  in  our  souls  are  able  to 
withstand.  Yooi  would  be  protecting  them  against  themselves  to  a  very  great  extent, 
and  I  know  that  I,  as  a  member  of  the  General  Assembly  would  thank  you  for  putting 
us  in  a  position  to  be  saved  from  ourselves  in  the  way  of  taking  care  of  the  public 
money.    Yet  if  I  believed  that  in  doing  this  I  was  going  to  attack  the  credit  of  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIEGIXIA. 


2929 


State  in  any  way,  shape  or  form,  or  prevent  a  proper  amount  of  money  teing  appro- 
priated to  every  worthy  institution  in  the  State,  I  would  not  vote  for  it.  But  I  think 
you  are  only  providing  really  for  a  5-cent  reduction  under  this  provision,  and  that 
there  can  be  no  question  in  my  mind,  hut  that  when  this  Constitution  goes  into  effect, 
you  cannot  only  reduce  it  five  cents,  but  you  can  reduce  it  much  more  than  five  cents 
with  perfect  safetj'. 

I^,Ir.  Turnbull.  Mr.  President,  and  gentlemen  of  the  Convention,  I  will  not  occupy 
much  of  your  time  in  the  discussion  of  this  proposed  independent  section.  I  want  to  say, 
in  the  outset,  that,  as  stated  by  my  friend  from  Danville,  we  were  together  as  members 
of  the  Senate  of  Virginia  for  four  years,  at  a  period  of  time,  when  it  became  necessary 
that  every  institution  of  this  State,  every  branch  of  the  government  and  its  manage- 
ment should  be  carefully  investigated,  in  order  to  stop  the  raids  upon  the  treastiry 
that  were  then  being  made,  in  order  that  the  expenses  of  the  State  might  be  reduced. 
I  had  the  honor  to  be  appointed  upon  the  committee  vrith  the  gentleman  from  Danville 
and  the  gentleman  from  Albemarle  to  do  that  work.  We  made  a  thorough  investiga- 
tion into  this  whole  matter  and  became  thoroughly  familiar  with  the  affairs  of  the 
State  and  every  possible  institution  connected  with  it.  And  with  the  aid  of  those 
gentlemen  and  of  the  investigation  made,  we  undertook  to,  and  did,  institute  reforms 
in  the  affairs  of  the  government,  and  caused  bills  to  be  passed  that  put  a  check  upon 
the  outgo  of  the  revenue  that  came  to  the  State.  I  agree  entirely  with  the  gentleman 
from  Rockingham  that,  as  a  member  of  the  Legislature  and  a  citizen  of  Virginia,  I 
would  rather  see  a  deficit  every  year  than  see  an  overflowing  treasury  such  as  we  have 
now.  There  never  was  a  time  in  the  history  of  the  State  of  Virginia  when  a  rigid 
economy  in  the  affairs  of  the  government  would  show^  a  surplus  in  the  treasury  that 
you  did  not  have  raiders  standing  at  the  door  for  the  purpose  of  getting  it.  Just  as 
soon  as  the  fruits  of  these  measures  of  reform,  that  were  adopted  by  the  Legislature, 
became  apparent,  the  raids  began  again  upon  the  treasury,  and  the  laws,  that  we  worked 
so  hard  to  put  in  force,  which  were  not  intended  to  work  an  injury  to  the  State,  but 
were  intended  to  enforce  proper  and  economical  administration  of  the  government 
which  the  people  had  a  right  to  demand,  began  to  be  repealed  at  the  instance  of  those 
people  who  wanted  to  get  out  of  the  treasury  what,  in  my  judgment,  they  were  not 
entitled  to  get  out  of  it. 

I  want  to  call  attention  to  the  fact  that  when  you  make  appropriations  it  is,  in 
nine  cases  out  of  ten,  for  the  benefit  of  the  few  and  at  the  expense  of  the  many.  No 
appropriation  ought  to  be  made  out  of  the  public  treasury  until  it  is  properly  scrutin- 
ized, and  they  will  never  be  properly  scrutinized  as  long  as  you  have  a  surplus  in 
the  treasury,  because  of  the  importunities  and  annoyances  that  the  members  of  the 
General  Assembly  are  subjected  to.  No  man,  who  has  not  been  a  member  of  the 
General  Assembly,  has  any  idea  of  the  extent  of  that  annoyance.  I  have  seen  mem- 
bers of  the  Senate  of  Virginia  stand  up  in  their  places  and  undertake  to  protect  the 
interests  of  the  people  against  these  importunities,  and  I  have  seen  them  hissed  in 
the  Senate  by  the  crowd  of  lobbyists  standing  around  making  applications  for  appro- 
priations, that  those  members  who  opposed  them  did  not  think  they  were  entitled  to. 
The  investigations  that  this  committee  made  satisfied  me  that  Ave  could  stand  a  reduc- 
tion of  taxes  prior  to  the  time  of  the  assembling  of  this  Convention,  by  a  proper  ad- 
ministration of  the  State  government.  I  came  to  this  Convention,  Islv.  President,  for 
two  purposes.  One  was>  to  try  and  enforce,  by  measures  that  we  would  inaugurate 
here  an  economic  administration  of  the  government.  I  have  gone  over  the  meastires 
that  have  been  introduced;  I  have  examined  carefully  the  changes  that  have  been 
made,  and  'I  think  that  purpose  has  in  a  great  measure  been  accomplished  by  what  we 
have  done.  But  that  is  not  all,  gentlemen  of  the  Convention.  I  intend  to  show  my 
faith  in  what  I  believe  we  have  done  and  in  what  we  have  done,  by  voting  for  the 
amendment  offered  by  the  gentleman  from  Danville,  to  show  to  the  people  of  AMrginia 
that  I  came  here  to  try  and  fix  it  so  the  taxes  could  be  reduced  and,  not  only  that,  btit 


2930  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

I  am  going  to  show  my  faith  in  what  we  have  done,  and  let  them  understand  that  I 
have  faith  in  it,  by  voting  for  this  amendment. 

Gentlemen  say  that  this  is  a  legislative  measure.  It  is  not  the  only  legislative  meas- 
ure that  we  have  adopted  in  this  Constitution.  When  I  came  here  I  did  not  ask  the 
question  whether  any  measure  I  advocated  was  a  legislative  measure  or  whether  it 
was  a  measure  strictly  belonging  to  a  constitutional  convention.  I  came  here  to  put 
it,  in  order  that  they  should  have  proper  protection.  I  am  going  to  put  in  here  any 
measure  that  I  think  is  necessary,  so  far  as  my  vote  goes.  I  am  going  to  vote  to  put 
in  every  one  that  I  believe  is  absolutely  necessary.  That  is  where  I  stand  upon  this 
subject.  I  have  said,  in  the  beginning,  that  I  was  not  able  to  discuss  this  matter  and 
go  over  the  figures  that  have  been  introduced  here;  but  I  have  examined  them  care- 
fully enough  to  know  that  they  are  correct,  in  my  judgment,  in  the  presentation  of 
this  matter.  I  am  going  to  vote  to  try  this  experiment.  I  am  going  to  show  my  faith 
in  the  work  we  have  done  by  putting  the  stamp  of  my  own  approval  on  it.  I  am  going 
to  show  to  the  people  I  represent,  that  I,  at  least,  believe  in  what  we  have  done,  I 
have  no  more  doubt  than  that  I  stand  here  to-day  that  when  we  do  that  there  never 
will  come  a  time  when  a  single  member  of  this  Convention  will  regret  what  we  have 
put  here.  I  believe  that  we  will  receive  the  applause  and  the  good-will  of  the  entire 
people  of  the  State,  and  that  no  one  will  thank  us  more  than  the  representatives  of 
the  people  in  the  General  Assembly,  because  it  will  put  them  in  a  position  of  being 
able  to  say  to  those  who  are  now  knocking  at  their  doors  for  appropriations  which, 
in  my  judgment,  they  are  not  entitled  to,  that  the  tax  rate  has  been  reduced  and  they 
cannot  consider  such  propositions. 

Now,  Mr.  President,  these  are  my  views  in  reference  to  this  matter.  I  am  going 
to  support  the  amendment  of  the  gentleman  from  Danville,  and  I  am  going  to  do  it 
with  pleasure,  because  I  believe  it  is  the  proper  thing  for  us  to  do,  to  show  that  we 
have  not  only  done  the  work  the  people  sent  us  here  to  do,  but  that  we  have  confidence 
in  our  work  and  that  we  are  going  to  see  that  it  has  a  fair  show. 

Mr.  Smithers:  Mr.  President,  some  of  the  members  of  the  Convention  have  sug- 
gested what  I  think  is  a  technical  objection;  but  to  meet  it  I  want  to  move  that 
the  words  in  line  4,  "there  shall  be  a  tax"  be  eliminated,  and  that  there  shall  be  sub- 
stituted therefor  the  words,  "rate  of  taxation  shall  be  no  more  than." 

Mr.  Harrison:  Mr.  President,  I  was  very  much  in  favor  of  the  resolution  that 
was  introduced  by  the  gentleman  from  Danville,  until  I  found  out  that  the  Legislature 
had  made  certain  appropriations  which  rendered  it  almost  impossible  for  this  Con- 
vention to  adopt  such  a  resolution.  I  think  it  would  be  a  great  mistake  for  this  Con- 
vention to  go  before  the  people,  when  they  submit  this  Constitution,  with  anything 
that  cannot  be  demonstrated  to  be  true.  I  believe  it  can  be  demonstrated  by  anybody 
who  will  look  at  the  figures,  that  in  view  of  the  action  we  have  taken  in  regard  to 
the  capitation  tax  and  in  view  of  the  action  of  the  Legislature  in  regard  to  appropria- 
tions, that  it  is  absolutely  impossible  to  reduce  taxes.  It  is  a  question  for  the  people 
to  say  whether  they  are  going  to  vote  for  the  reduction  of  taxes  when  it  is  shown  that 
the  revenues  of  the  State  are  unequal  to  meeting  the  appropriations  that  the  Legisla- 
ture has  made.  I  have  said,  again  and  again,  before  this  Convention,  that  so  far  as 
the  people  I  represent  are  concerned,  they  are  more  interested  in  the  question  of  the 
reduction  of  taxes  than  they  are  in  the  question  of  suffrage.  You  will  not  gain  a  vote 
in  my  section  when  you  show  that  it  is  impossible  to  reduce  taxes  without  a  proper 
reduction  in  the  expenses  of  the  State.  I  cannot  see  that  we  have  made  any  reduction 
in  the  expenses  of  the  State,  so  far  as  I  have  been  able  to  investigate.  Therefore,  I 
am  opposed  to  this  resolution. 

The  Presiding  Officer:  The  question  is  upon  the  agreement  olJered  by  the  gentle- 
man from  Danville  as  an  independent  section  24  to  the  report  of  the  Committee  on 
Taxation  and  Finance. 

At  this  point  the  President  resumed  the  chair. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  2931 

The  ayes  and  noes  having  been  taken,  the  result  was  announced — Ayes,  41;  noes,  32, 
as  follows: 

Ayes:  Messrs.  Ayers,  Barham,  Bamam,  Manly  H.  Barnes,  Boaz,  Braxton,  P.  "W.  Camp- 
bell, Davis,  Epes,  Flood,  Gilmore,  Gillespie,  James  W.  Gordon,  R.  L.  Gordon,  Gregor^^  Gwyn, 
Hardy,  Hooker,  Keezell,  Lawson,  Lindsay,  Lovell,  Marshall,  Miller,  Moncure,  Mundy, 
Parks,  Pettit,  Phillips,  Pollard,  Rives,  Stuart,  Summers,  Tarry,  Thornton,  Turnbull,  Wal- 
ter, Withers,  Woodhouse,  Yancey,  and  the  President — 41. 

Noes:  Messrs.  Allen  W.  A.  Anderson,  Thomas  H.  Barnes,  Blair,  Bouldin,  Bristow, 
Brown,  C.  J.  Campbell,  Carter,  Crismond,  Fairfax,  Fletcher,  Hamilton,  Hancock,  Harrison, 
Hatton,  Hunton,  Ingram,  Claggett  B.  Jones,  Mcllwaine,  Meredith,  O'Flaherty,  Pedigo, 
Quarles,  Richmond,  Robertson,  Stebbins,  Thom,  Waddill,  Wescott,  Willis,  and  Wysor— 32. 

The  following  pairs  were  announced:  Mr.  Garnett  with  Mr.  Brooke;  Mr.  Green 
with  Mr.  Cameron;  Mr.  Glass  with  Mr.  R.  Walton  Moore;  Mr.  G.  W.  Jones  with  Mr. 
Kendall;  Mr.  George  K.  Anderson  with  Mr.  Portlock;  Mr.  Earman  with  Mr.  Lincoln. 

The  first  named  gentleman  in  each  instance  would  have  voted  in  the  affirmative. 

The  independent  section  was  adopted. 

Mr.  Fairfax.  Mr.  President,  I  move  that  the  report  of  the  Committee  on  Taxa- 
tion and  Finance,  as  amended,  be  adopted  as  a  whole  and  be  referred  to  the  Committee 
on  Final  Revision  and  Adjustment.  I  ask  unanimous  consent  that  this  be  done  without 
prejudice  to  Section  6,  which  relates  to  the  capitation  tax,  in  which  some  changes  may 
have  to  be  made  after  the  Suffrage  Committee's  report  has  been  considered.  I  trust 
that  will  be  taken  as  the  sense  of  this  body. 

The  President:    Without  objection  that  order  will  be  made. 

On  motion  of  Mr.  Turnbull,  the  Convention  adjourned  until  to-morrow,  Saturday, 
March  8,  1902,  at  10  o'clock  A.  M. 


[From  the  8th  of  March  to  the  29th  the  Convention  did  not  engage  in  any  delib- 
erations. On  each  day,  immediately  after  roll-call,  the  Convention  adjourned,  and  the 
Democratic  members,  who,  with  the  exceptions  of  eleven  members,  constituted  the 
body,  went  into  conference  upon  the  Suffrage  question.  For  these  twenty-one  days 
there  is  an  intermission  of  the  stenographic  report  of  the  proceedings  of  the  Con- 
vention, as  nothing  of  interest  occurred  during  that  period. — Editor.] 


SATURDAY,  March  29,  1902. 
The  Convention  met  at  10  o'clock  A.  M.    Prayer  by  Rev.  Jere  Witherspoon. 

AMENDMENT  TO  RULES. 

Mr.  O'Flaherty:    I  offer  the  following  amendment  to  the  rules: 

After  a  motion  to  rescind  has  been  carried,  the  Convention  shall  have  the  same 
control  of  the  matter  under  consideration  as  if  no  action  had  been  taken. 

Mr.  President,  if  the  Convention  will  give  me  its  attention  a  few  minutes,  I  think 
members  will  agree  that  this  amendment  to  Rule  9  should  be  adopted.  In  the  first 
place,  I  wish  to  call  attention  to  the  fact  that  this  change  of  the  rules  does  not  open 
up  any  question.  I  will  read  it.  I  wish  to  insert  at  the  end  of  Rule  9  the  following 
language : 

After  a  motion  to  rescind  has  been  carried,  the  Convention  shall  have  the  same 
control  of  the  matter  under  consideration  as  if  no  action  had  been  taken. 


2933  DEBATES  OF  THE  COXSTITUTIOXAL  CONVElTTIOlsr  OE  VIEGHSTIA. 

Now,  a  motion  to  rescind  will  have  to  be  carried,  and  if  a  majority  of  the  Conven- 
tion does  not  wish  to  reconsider  or  rescind  a  matter,  they  can  vote  it  down;  but  I  do 
not  want  the  Convention  to  be  put  in  the  position  of  saying  that  if  we  have  made 
mistakes,  we  cannot  correct  them.  I  think  we  ought  to  be  in  the  position  of  a  court 
before  it  adjourns.  Whatever  is  done  in  the  bosom  of  the  court,  and  can  be  corrected, 
I  think  that  was  the  meaning  of  the  word  "rescind;  "  but  under  the  ruling  of  the 
Chair,  which  is  technically  correct,  perhaps,  that  has  not  obtained.  If  I  am  right,  the 
Chair  has  ruled  that  after  a  reconsideration  of  a  matter  there  could  be  no  rescision. 
I  find  that  the  meaning  of  the  word  "rescind,"  as  given  by  Webster— 

The  President.  The  gentleman  does  not  correctly  represent  the  ruling  of  the 
Chair.  The  Chair  intimated,  without  deciding,  therefore,  that  after  a  resolution  was 
carried  to  rescind,  it  might  not  be  in  order  to  reinstate  in  the  place  of  v^hat  had  been 
rescinded  the  proposition  voted  upon  by  the  Convention,  and  voted  down,  when  a 
motion  had  been  made  to  reconsider,  and  then  that  motion  failed. 

Mr.  O'Plaherty:  The  Chair  is  correct.  That  is  what  he  did  state,  and  that  is 
what  I  wish  to  correct.  I  meant  to  convey  that  idea.  I  think  we  are  wrong  in  pen- 
ning ourselves  up. 

The  meaning  of  the  word  "rescind,"  as  given  by  Webster,  is  "to  vacate  an  act  by 
the  enacting  authority  or  by  a  superior  authority."  Now,  If  we  have  the  power  to  va- 
cate this  act,  Y/e  ought  to  have  the  power,  if  we  have  made  a  mistake  to  correct  it; 
but  I  wish  to  call  the  attention  of  the  Convention,  specifically,  to  the  fact  that  if  they 
do  not  want  to  rescind  any  matter,  they  v^^ill  vote  down  the  motion  to  rescind. 

I  want  to  state  frankly  that  there  are  no  things  I  want  to  open  up  myself  except 
the  one  question  of  the  Senate  of  the  State  of  Virginia.  I  was  not  here  when  the 
vote  was  taken  on  that  matter,  but  I  am  frank  to  say  I  would  have  voted  with  the 
majority  of  the  Convention;  and  yet  I  think  v^e  made  a  mistake  there.  Still,  if  the 
Convention,  when  a  motion  is  made  to  rescind  that  action,  thinks  differently,we  can' 
vote  it  dovm  without  any  debate,  and  it  will  take  very  little  time.  I  do  not  want  to 
be  put  in  the  ridiculous  position,  however,  of  going  back  to  my  people  and  saying  we 
made  a  mistake,  and  before  we  adjourned  v/e  found  it  out,  but  we  could  not  correct  it. 
I  think  everything  that  is  done  should  be  in  the  bosom  of  the  court,  so  to  speak,  and 
can  be  corrected  by  the  Convention. 

My  motion  is  simply  that  after  a  motion  to  rescind  has  carried,  then  the  Con- 
vention shall  have  it  in  its  power  to,  insert  other  matter;  not  simply  to  rescind  it  and 
leave  a  blank'.  For  instance,  if  a  motion  to  rescind  the  action  of  the  Convention  in 
regard  to  the  election  of  State  senators  carries,  then  I  want  to  be  in  a  position  to  move 
that  they  be  elected  for  four  years  instead  of  two.  I  think  that  is  a  sensible  position 
and  a  sensible  position  for  the  Convention  to  take.  That  is  all  I  have  to  say.  I  hope 
the  resolution  will  be  carried. 

Mr.  Blair:  It  might  be  that  every  other  member  would  have  something  he  would 
like  to  get  in  the  Constitution  in  the  same  way. 

Mr.  O'Flaherty:    Then  we  will  vote  down  every  motion  to  rescind. 

Mr,  Flood:  Under  the  rules  of  the  Convention  we  now  have  the  right  to  offer 
a  resolution  to  rescind  anything.  The  amendmemnt  of  the  gentleman  from  Warren 
does  not  propose  to  interfere  with  that.  The  only  thing  he  proposes  to  do  is  to  pro- 
vide that  where  the  Convention  decides  to  rescind  its  action,  and  leaves  a  hiatus  in 
the  Constitution,  then  this  Convention  may  unquestionably  have  the  right  to  fill  the 
blank  that  it  left.    It  seems  to  me  it  is  the  only  common-sense  view  to  take  of  it. 

It  V70uld  be  absurd  for  us  to  say,  for  instance,  that  the  action  or  this  body  pro- 
viding for  two-year  senators  could  be  rescinded,  and  nothing  could  be  provided  for  the 
election  of  senators  at  all — that  you  can  rescind  the  two-year  provision  for  senators, 
but  you  cannot  supply  it  by  having  the  senators  elected  for  four  years.  I  do  not 
know  that  the  Chair  will  rule  that  way,  but  the  Chair  has  intimated  that  he  might 
rule  that  way;  and  the  resolution  of  the  gentleman  from  Warren  is  simply  designed 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION"  OF  VIRGINIA. 


2933 


to  meet  that  phase  of  the  question.  If  you  decide  to  rescind,  and  anything  is  left  out 
of  the  Constitution  that  ought  to  be  put  in,  this  resolution  gives  you  the  power  to 
put  it  in.  it  does  not  invite  motions  to  rescind,  because  the  Convention  can  rescind 
now  under  the  rules  just  as  it  could  rescind  under  the  resolution  offered  by  the  gentle- 
man from  "Warren. 

It  seems  to  me,  therefore,  it  is  the  part  of  wisdom  to  adopt  this  resolution,  and 
not  have  our  hands  tied,  if  we  choose  to  rescind  an  action,  so  that  we  cannot  supply 
the  vacancy  in  the  Constitution  that  would  be  left  by  that  rescission. 

Mr.  James  Y7.  Gordon:  What  distinction  do  you  draw  between  the  terms  "recon- 
sider" and  "rescind"  in  the  rule  as  it  now  stands? 

Mr.  Flood:  The  distinction  I  draw  is  this.  "Rescind,"  I  think,  means  the  same 
to  this  body  as  the  povrer  of  repeal  to  the  Legislature.  You  can  reconsider  within  cer- 
tain bounds.  You  can  rescind  as  long  as  this  body  is  in  existence,  just  as  the  Gen- 
eral Assembly  of  "Virginia  can  repeal  any  act  that  is  enacted  at  any  time  while  it  is 
in  session.  I  take  it  that  the  word  "rescind"  in  our  rules  gives  us  the  same  power 
over  what  we  have  done  as  the  power  of  the  General  Assembly  to  repeal  any  act  it  has 
enacted  during  the  session. 

Mr.  YValker:  Mr.  President,  v,dthout  any  reference  whatever  to  any  proposed  changes 
In  any  action  which  has  heretofore  been  taken  by  the  Convention,  I  think  the  proposi- 
tion of  the  gentleman  from  Warren  (Mr.  O'Flaherty)  is  a  sensible  and  wise  one  if  it 
will  have  the  effect  as,  it  certainly  will,  of  removing  any  doubt  as  to  the  power  of  the 
Convention  to  express  its  own  will  as  to  any  matters  which  may  come  before  it,  and  in 
which  we  may  desire  to  make  a  change,  v/ithout  the  cumbersome  method  of  first  re- 
scinding the  action  taken,  and  then  afterwards  changing  a  rule  in  order  to  carry  out 
that  intention.  It  has  the  effect  simply  of  untying  the  hands  of  the  body,  and  allowing 
it  to  express  its  will  in  regard  to  any  measure;  and  it  seems  to  rne  It  would  be  a 
wise  and  proper  thing  to  do, 

Mr.  Lindsay:  I  move  that  the  whole  matter  be  laid  on  the  table.  I  do  that  for  the 
reason  that  I  do  not  think  it  is  fair  and  just  to  members  who  are  absent  to-day  to  vote 
upon  this  question  at  this  time.  There  is  barely  a  quorum  here,  and  it  Is  a  very  serious 
matter,  in  my  judgment,  to  pass  upon  a  resolution  of  this  kind,  which  will  open  up 
every  question.    There  should  be  a  full  vote  upon  it. 

Mr.  O'Flaherty:  I  call  the  gentleman's  attention  to  the  fact  that  I  gave  notice 
yesterday  I  vmuld  bring  this  matter  up  to-day,  so  that  there  would  be  no  snap  judg- 
ment. 

The  President:  The  question  is  upon  the  motion  of  the  gentleman  from  Albemarle 
(Mr.  Lindsay)  that  the  pending  proposition  be  laid  upon  the  table. 

The  question  having  been  taken,  the  result  was  announced — Ayes,  16;  noes,  35. 
The  motion  was  rejected. 

Mr.  Mcllwaine.  Mr.  President,  I  voted  against  laying  the  motion  on  the  table, 
because  I  thought  we  ought  to  settle  this  matter  here  and  now.  I  view  with  the  very 
greatest  concern  the  idea  of  opening  up  any  of  these  questions  which  have  been  settled; 
and  I  must  say  that,  take  it  as  a  whole,  I  am  opposed  to  rescinding  anything  v,re  have 
done  so  far.  There  are  things  that  personally  I  should  like  to  see  corrected.  I  use 
the  word  "corrected"  from  my  point  of  view,  but  there  are  many  other  things  which 
other  gentlemen,  from  their  point  of  view,  would  like  to  see  corrected  which  I  should 
greatly  det)lore.  And  so  it  seems  to  me  that  if  we  open  this  matter  at  all  and  allow  the 
fiood-gates  of  oratory  to  be  spread  before  us,  there  is  no  telling  where  we  are  going 
to  or  to  what  conclusions  we  will  come.  Most  of  these  questions  have  been  amply  de- 
bated, both  in  the  Committee  of  the  Whole,  and  in  the  Convention;  and  now  for  us 
to  go  back  upon  the  deliberate  conclusions  of  the  Convention,  looks  to  me  as  if  it  were 
childish. 

Therefore,  I  do  trust  that  anything  looking  towards  rescinding  will  be  voted  down. 
Mr.  Wysor:    Suppose  there  were  some  matter  in  the  new  Constitution,  as  adopted. 


2934 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


that  the  Convention  would  unanimously  desire  to  rescind — some  error  that  should  be 
corrected? 

Mr.  Mcllv/aine:  If  it  were  unanimous,  I  would  be  found  among  those  voting  for 
rescinding. 

Mr.  Wysor:    But  you  could  not  do  it.    That  is  the  very  point. 

Mr.  Robertson:  Mr.  President,  I  am  as  much  opposed  as  the  gentleman  from 
Prince  Edward  (Mr.  Mcllwaine)  to  staying  here  and  losing  money  and  wasting  time; 
but  it  seems  to  me  that  the  question  that  the  gentleman  from  Pulaski  (Mr.  Wysor) 
asked  him  has  a  great  deal  in  it.  Here  we  are,  a  body  of  men,  making  a  Constitution 
that  may  last  for  thirty  years.  He  talks  about  our  doing  everything  with  great  delib- 
eration. Everybody  knows  that  a  number  of  very  important  questions  have  been  passed 
on  here  when  we  did  not  have  a  full  attendance,  largely  due  to  the  whip  and  spur  that 
has  been  put  upon  this  body  by  gentlemen  who  continually  say,  "We  must  keep  on  at 
work."  I  remember  one  occasion  when  there  were  only  fifty  people  j^resent  when  one 
of  the  most  important  questions  that  came  before  the  Convention  was  decided;  and 
under  the  whip  and  spur  of  gentlemen  who  said,  "We  must  attend  to  business;  we  must 
not  give  people  time  to  deliberate."  It  is  not  so  much  a  question  of  argument,  because 
nobody  listens  to  anybody's  argument  here  (laughter).  It  is  a  question  whether  we 
shall  have  time  to  know  what  we  are  voting  on.  We  sometimes  come  here  in  the  morn- 
ing and  vote  for  one  thing,  and  after  dinner,  after  we  have  gotten  something  to  eat, 
we  come  back  here  and  vote  another  way.  I  do  not  think  ft  is  as  childish  to  change 
what  we  have  done  if,  after  due  deliberation,  and  after  thinking  over  the  matter,  we 
see  that  we  are  wrong,  as  it  would  be  to  stand  by  some  hide-bound  rule  simply  because 
gentlemen  want  to  get  away  from  here. 

My  own  idea  is  that  we  ought  to  trust  to  the  common  sense  of  the  convention.  To 
say  that  you  open  the  flood-gates  here  simply  because  we  change  that  rule  and  enable 
ourselves  to  correct  errors,  if  we  think  they  are  errors,  it  does  seem  to  me  is  going  too 
far.  I 

There  are  a  number  of  things  we  have  had  big  fights  over  and  that  have  been 
thoroughly  discussed,  and  I  doubt  whether  anybody  will  attempt  to  get  them  up  again; 
but  there  may  be  others  that  the  Convention  will,  as  the  gentleman  from  Pulaski  says, 
unanimously  desire,  or  certainly  by  a  very  large  majority  desire,  to  change,  and  it 
would  be  foolish,  as  long  as  we  are  in  session,  to  tie  our  hands  so  that  we  cannot  change 
something  that  we  are  satisfied  is  a  mistake. 

I  do  not  believe  we  are  going  to  open  any  flood-gates  here.  The  disposition  of 
the  Convention  will  not  be  to  reopen  very  many  matters.  There  may  be  a  few,  but 
most  of  them  will  be  voted  down  in  the  first  jump,  because  as  far  as  I  can  see,  the 
temper  of  this  Convention  now  is  to  rush  through  with  everything  and  get  home. 

The  President:  The  question  is  on  agreeing  to  the  proposed  change  of  rule  offered 
by  the  gentleman  from  Warren. 

The  amendment  to  Rule  9  was  agreed  to,  there  being,  on  a  division — Ayes,  33; 
noes,  18. 

Mr.  O'Plaherty:  I  move  to  reconsider  the  vote  by  which  the  amendment  was 
adopted. 

Mr.  Withers:  I  just  want  to  call  attention  to  the  status  of  the  matter,  and  I  start 
by  saying  that  I  am  not  opposed  to  the  amendment  of  the  gentleman  from  Warren  in 
itself;  but  the  gentleman  from  Roanoke  (Mr.  Robertson)  and  one  or  two  other  gentle- 
men, in  arguing  in  support  of  this  resolution,  have  made  the  point  that  we  have  carried 
important  measures  through  here  by  a  bare  quorum;  and  yet  exactly  and  all  we  have 
here  to-day  is  a  bare  quorum  of  this  Convention,  and  they  not  only  propose  to  change 
the  rules,  but  they  make  a  motion  to  reconsider  that  change,  so  that  if  the  majority 
of  the  members  who  are  away — and  I  have  no  apologies  to  offer  for  their  being  away — 
should  at  any  time  desire  to  reconsider  this  very  action  of  the  Convention,  they  are 
hampered  from  so  doing  except  by  a  rescinding  resolution. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIEGIXIA. 


2935 


In  regard  to  the  very  motion  the  gentleman  from  Roanoke  referred  to,  there  was 
a  bare  quorum  voted  that  day,  hut  It  was  afterwards  sustained  by  three  or  four  to  one. 
It  was  on  the  questions  between  judges^  of  county  courts  or  a  double  or  single  system. 
The  vote  was  41  to  9,  and  the  absence  of  the  member  from  Richmond  (Mr.  Newton) 
on  account  of  sickness  made  a  50  an  exact  quorum.  There  are  but  51  here  to-day.  On 
the  very  motion  that  this  amendment  of  the  rules  is  intended  to  pave  the  way  for, 
to-wlt,  the  question  of  hold-over  Senators,  the  vote  was  45  to  28,  and  yet  nothing  is 
accepted  as  the  sense  or  sentiment  of  this  Convention  that  does  not  happen  to  accord 
with  the  majority  of  it. 

So  far  as  I  am  concerned,  I  have  no  objection  to  the  amendment  of  the  gentleman 
from  Warren;  but  it  is  railroading  through  here  a  measure  In  the  Interest  of  a  part  of 
the  Convention  that  has  hitherto  ever  been  in.  the  minority. 

Mr.  Flood:  I  wish  to  call  the  attention  of  the  gentleman  to  the  fact  that  this 
cannot  be  spoken  of  as  being  railroaded  through,  because  It  has  been  pending  a  month. 

Mr.  Withers:  We  all  understand.  The  fight  was  made  by  the  gentleman  from 
Halifax  and  the  gentleman  from  Rockbridge  to  force  this  resolution  and  all  rescind- 
ing resolutions  ahead  of  the  suffrage  discussion,  and  it  was  overwhelmingly  voted 
down.  It  was  started  three  or  four  weeks  ago.  All  I  ask  of  the  gentleman  from  War- 
ren is  this:  As  I  say,  his  resolution  of  itself  is  not  objectionable  to  me,  but  I  do  not 
think  that  a  mere  majority  of  this  Convention,  by  a  vote  of  33  to  18,  should  make  it 
impossible  to  amend'  or  reconsider  that  rule  if  the  other  members  object  thereto.  You 
are  assuming  the  very  position  you  criticise  the  Convention  for  having  assumed  in  the 
past.  I  have  no  earthly  objection  to  the  change  in  the  rule,  but  I  do  object  to  paving 
the  way  to  a  change  in  what  we  have  done  by  a  change  in  the  rules. 

The  only  thing  I  desire  to  ask  of  the  gentleman  from  Clarke  and  Warren  is  that 
he  will  let  the  consideration  of  this  matter  go  over  until  a  full  Convention  can  con- 
sider it. 

Mr.  O'Flaherty:  The  only  reason  I  do  not  is  that  it  will  simply  take  up  time. 
The  same  reasons  that  have  addressed  themselves  to  the  gentlemen  here  will  appeal 
to  others.    I  do  not  want  to  take  up  the  time. 

Mr.  Wysor:  Mr.  President,  I  hope  the  Convention  will  vote  down  the  motion  to 
reconsider,  and  clinch  this  matter.  In  my  humble  opinion,  with  all  due  respect  to 
the  other  members  of  the  Convention,  I  say  the  question  is  not  at  all  debatable.  The 
idea  of  a  great  Convention  of  the  people  undertaking  to  tie  its  hands,  so  that  it  can 
not  open  up  any  matter!  We  are  told  by  the  gentleman  from  Prince  Edward  (Mr. 
Mcllwaine)  that  you  might  open  the  flood-gates  and  let  in  all  kinds  of  motions  to  undo 
what  we  have  already  done.  I  suppose  we  are  a  sensible  body  of  men,  and  we  can 
take  care  of  ourselves  in  that  respect.  Nobody  anticipates  that  we  are  going  to  raise 
any  flood-gates.    There  will  not  be  over  three  or  four  questions  opened  up  again. 

Mr.  Mcllwaine:  I  have  seen  the  statement  in  one  of  the  papers  of  twenty  ques- 
tions. 

Mr.  Wysor:  It  is  ridiculous  for  us  to  say  we  cannot  open  up  a  question.  The 
gentleman  from  Danville  (Mr.  Withers)  says  the  main  purpose  is  to  open  up  the  ques- 
tion as  to  whether  we  shall  have  holdover  senators.  Did  not  the  gentleman  from  Ap- 
pomattox (Mr.  Flood),  more  than  a  month  ago,  make  a  motion  to  rescind,  and  tell 
you  he  was  going  to  open  up  that  question?  It  seems  to  me  it  has  been  six  weeks, 
or  maybe  two  months  ago,  that  he  made  that  motion,  when  we  were  in  the  hall  of  the 
House  of  Delegates,  and  that  motion  has  been  pending  ever  since.  Under  such  circum- 
stances it  is  perhaps  proper  to  reopen  that  matter. 

What  is  the  matter  with  the  gentleman  from  Danville?  He  succeeded  on  one 
occasion  in  getting  a  provision  put  in  the  Constitution,  reducing  the  rate  of  taxa- 
tion on  real  estate  and  tangible  personal  property,  and  he  is  afraid  somebody  will 
make  a  motion  to  rescind  that  provision.  I  do  not  suppose  the  Convention  will  ever 
rescind  it.    Several  of  the  ablest  men  in  this  body  did  not  know  five  minutes  before 


2936 


DEBATES  OF  TflE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


they  voted  how  they  were  going  to  vote  on  that  important  question  j  they  s-aid  they 
wanted  to  hear  Mr.  Keezell,  and  Keezell  came  over  from  the  Legislature  and  made  a 
speech;  and  he  and  Mr.  Boaz  said  the  Legislature  was  going  to  waste  all  the  money; 
and  the  convention  passed  the  Withers  resolution,  reducing  taxation  on  real  estate  and 
on  personal  property,  and  leaving  bonds,  money,  and  all  invisible  property  taxed  40 
cents  on  the  $100. 

Mr.  Lindsay:  Will  the  gentleman  permit  me  to  correct  him?  Mr.  Boaz  was  not 
present  on  that  occasion. 

Mr.  Wysor:  I  know  he  was  not  here,  but  he  was  in  'for  it.  He  and  Keezell  run 
in  the  same  groove  and  trot  the  same  gait.  It  is  the  only  occasion  in  history,  I 
reckon,  where  a  provision  was  put  into  an  organic  law  saying  v/hat  is  perhaps  the 
lowest  rate  of  taxation  should  be  the  maximum  rate.  It  is  unequal,  too.  Lands,  it 
is  claimed,  are  now  assessed  only  about  one-third  of  their  value,  and  tangible  personal 
property  is  also  assessed  at  less  than  its  value,  and  the  rate  is  reduced  to  30  cent&  on 
real  estate  and  tangible  personal  property,  and  left  at  40  cents  on  bonds  and  other  in- 
visible property;  and  when  they  want  to  make  up  the  deficiency,  Keezell  and  Boaz  go 
over  to  the  Legislature  and  try  to  increase,  instead  of  reducing,  taxation  on  telephones. 
(Laughter.) 

I  am  for  reducing  taxation.  Before  I  came  to  this  Convention  I  vvrote  a  letter  to 
my  constituency,  saying  that  was  a  thing  I  hoped  would  be  done;  but  I  did  not  con- 
template putting  the  reduction  in  the  Constitution.  I  wanted  to  fix  it  so  the  Legisla- 
ture could  reduce  taxation.  When  we  set  about  to  make  people  bear  the  burdens  of 
government  unequally,  it  can  hardly  be  said  to  be  a  wise  course  of  action. 

That  is,  however,  not  quite  germane  to  the  question.  I  say  we  ought  not  to  tie 
our  handsi.  I  was  making  the  point  that  the  gentleman  from  Danville  was  afraid  we 
might  move  to  rescind  his  tax-reduction  provision,  because  there  is  some  talk  about 
making  such  a  motion  

Mr.  Flood:  I  would  like  to  ask  the  gentleman  whether,  if  this  resolution  is 
adopted  or  not.  a  motion  to  rescind  that  cannot  be  made,  in  any  event? 

Mr.  Wysor:  I  suppose  it  could,  sir;  but  the  resolution  says  further  the  matter 
shall  stand  as  if  nothing  has  been  done  on  the  subject.  I  think  certainly  the  Con- 
vention ought  not  to  tie  its  hands.  There  is  no  use  in  waiting  for  anybody  to  come 
back  to  vote  on  this  question.  Those  members  who  are  absent  would  not  vote  to  put 
hickory  switches  which  they  could  not  break  around  their  arms  if  they  were  here. 

I  submit  that  the  motion  of  the  gentleman  from  Warren  (Mr.  O'Flaherty)  is  right, 
and  should  be  sustained. 

Mr.  James  W.  Gordon:  Mr.  President,  it  is  impossible  for  this  body  to  tie  its 
hands,  but  it  seems  to  me,  that  all  of  .this  talk,  about  our  tying  the  hands  of  the  Con- 
vention and  placing  it  so  we  cannot  correct  anything  is  not  germane  to  this  question. 
The  whole  thing  hinges  upon  the  present  vote,  which  a  majority  can  carry.  The  rules 
can  always  be  changed  in  the  proper  way;  and  therefore,  as  it  takes  only  a  majority 
to  change  the  rules,  a  majority  can  control  the  will  of  this  body  always. 

The  simple  question  is  whether  the  members  of  this  Convention  believe  it  would 
be  more  politic  and  wise  to  accept  the  work  as  it  has  already  been  done,  and  stand  on 
it,  rather  than,  by  changing  the  rules,  to  open  up  all  the  line  of  discussion  which  we 
have  gone  over  for  the  last  ten  months.  There  are  some  respects  in  which  I  disagree 
with  the  action  which  has  been  taken  in  the  Convention,  and  I  presume  every  member 
of  the  Convention  stands  in  exactly  the  same  relation  to  the  v/ork  that  has  been  done; 
but  viewing  the  whole  matter,  Mr.  President,  I  am  willing  to  accept  it  and  to  let  it  go 
through  and  be  adopted. 

It  seems  to  me  the  question  every  man  here  has  to  present  to  his  own  mind  is: 
Whether  or  not  the  work  of  this  Convention  as  so  far  adopted,  as  a  whole,  is  suffi- 


DEBATES  OF  THE  CON"STITUTIONAL  COXVEXTIOX  OF  VIKGIXIA. 


2937 


ciently  satisfactory  to  my  mind  to  let  me  be  willing  to  stand  by  it,  and  to  refuse  to 
allow  all  of  these  questions,  to  be  opened  up,  as  they  could  be  under  the  resolution 
offered  by  the  gentleman  from  Warren? 

The  President:  The  question  is  on  agreeing  to  the  motion  to  reconsider  the  vote 
by  which  the  change  of  rule  proposed  by  the  gentleman  from  Warren  was  adopted. 

Tlie  motion  was  rejected. 

LIMITATION  OF  DEBATE. 

Mr.  Ayers:    I  offer  the  following  resolution: 

Resolved,  That  debate  upon  every  proposition  to  rescind  shall  be  limited  to  fifteen 
minutes  for  and  fifteen  minutes  against  for  proposition;  and  upon  every  proposition 
to  substitute  other  matter  instead  of  that  rescinded,  debate  shall  be  likevvise  limited  to 
fifteen  minutes  for  and  fifteen  minutes  against  such  proposition. 

The  resolution  was  adopted. 

On  motion  of  Mr.  Robertson,  the  Convention  adjourned  until  Monday,  March  31, 
1902.  at  12  o'clock  M. 


MONDAY,  March  31,  1902. 

The  Convention  met  at  12  o'clock  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

Mr.  James  W.  Gordon:    Mr.  President,  I  offer  the  following  resolution: 

Resolved,  That  on  and  after  Thursday,  April  3,  1902,  the  place  of  meeting  of  the 
Convention  be  changed  from  the  Mechanic's  Institute  Hall  to  the  hall  of  the  House  of 
Delegates,  that  the  Secretary  of  the  Convention  be  instructed  to  make  the  necessary 
arrangements  for  the  change. 

The  resolution  was  agreed  to. 

ELECTIVE  FRANCHISE. 

Mr.  Daniel:  I  ask  leave  to  offer  the  following  resolution  and  to  ask  its  immediate 
consideration  by  the  Convention: 

Resolved,  That  the  follov\ang  article,  relating  to  the  right  of  suffrage,  be  adopted 
as  a  part  of  the  Constitution: 

ARTICLE. 

1.  Every  male  citizen  of  the  United  States,  who  shall  ha.ve  attained  the  age  of 
twenty-one  years,  and  who  shall  have  been  a  resident  of  this  State  for  at  least  two 
years,  of  the  county  or  city  in  which  he  shall  offer  to  vote  one  year,  and  of  the  precinct 
in  which  he  shall  offer  to  vote  thirty  days  next  preceding  the  election  at  which  he  shall 
offer  to  vote,  who  shall  have  been  registered  as  may  be  prescribed  by  law,  and  who 
shall  have  paid  in  person  to  the  State  at  least  six  months  prior  to  the  election  at  which 
he  shall  offer  to  vote  all  poll-taxes  assessed  or  assessable  against  him  for  the  preceding 
three  years,  under  the  provisions  of  this  Constitution,  or  laws  made  pursuant  thereto, 
shall  be  entitled  to  vote  for  members  of  the  General  Assembly  and  all  officers  elected 
by  the  people;  provided,  that  no  person  otherwise  qualified  to  vote  under  the  provisions 
of  this  Constitution  shall  lose  his  right  to  vote  in  the  precinct  from  which  he  has 
removed  to  another  precinct  in  the  same  city  or  county  until  after  the  expiration  of 
thirty  days  from  the  time  of  such  removal;  and  provided  further,  that  the  payment 
of  a  poll-tax,  as  a  prerequisite  to  voting,  shall  not  be  required  at  any  election  held 
prior  to  Januar3'  1,  1904,  after  which  time  the  voter  shall  be  required  to  pay,  as  a  pre- 
requisite to  the  right  of  suffrage,  the  poll-tax  for  the  next  years  preceding,  not  exceed- 
ing three,  for  which  such  tax  shall  have  become  due  or  payable;  but  the  collection  of 
l^o — Const.  Deb. 


2938 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


said  poll-tax  shall  not  be  enforced  by  distress  or  otherwise  until  it  shall  have  become 
three  years  past  due;  provided,  that  no  person  who,  during  the  late  war  between  the 
States,  served  in  the  army  or  navy  of  the  United  States,  or  of  the  Confederate  States, 
or  of  any  State  of  the  United  States,  shall,  at  any  time,  be  required  to  pay  a  poll-tax  as 
a  prerequisite  to  voting. 

2.  Prior  to  the  first  day  of  ,  1902,  and  again  prior  to  the  first  day  of  , 

1902,  and  again  prior  to  the  first  day  of  January,  1904,  there  shall  be  a  general  regis- 
tration of  voters  in  every  county  and  city  of  the  State,  at  which  general  registrations 
no  person  shall  be  listed  as  a  voter  unless.,  when  he  offers  to  register,  he  shall  be: 

First.  A  person  who,  prior  to  the  adoption  of  this  Constitution,  served  in  time  of 
war  in  the  army  or  navy  of  the  United  States  or  the  Confederate  States,  or  of  any 
State  of  the  United  States;  or 

Second.  The  son  of  a  person  who,  prior  to  the  adoption  of  this  Constitution,  served 
in  time  of  war  in  the  army  or  navy  of  the  United  States,  or  of  the  Confederate.  States, 
or  of  any  State  of  the  United  States;  or 

Third.  A  person  who  shall  have  paid  to  the  State  for  the  year  preceding  that  in 
which  he  offers  to  register,  taxes  amounting  to  as  much  as  one  dollar  ($1)  on  property 
owned  by  and  assessed  against  him;  or 

Fourth.  A  person  who  is  able  to  read  any  section  of  this  Constitution  which  may 
be  submitted  to  him  by  the  officers  of  registration  and  give  a  reasonable  explanation 
of  the  same;  or,  being  a  person  who  cannot  for  himself  read  such  section  of  the  Con- 
stitution, shall  be  able  to  understand  and  give  a  reasonable  explanation  thereof  when 
read  to  him  by  the  officers  of  registration.  All  persons  properly  registered  under  any 
provision  of  this  section  shall  remain  permanently  enrolled  as  electors,  unless  subse- 
quently disqualified  by  some  other  provision  of  this  article;  and  a  copy  of  this  permanent 
roW,  sv/orn  to  by  the  officers  of  registration,  shall  be  certified  to  each  county  and  city 
clerk  for  preservation  in  his  offi-ce.  Any  person  who  shall  be  denied  registration  shall 
have  the  right  of  appeal  to  the  Circuit  Court  of  the  county  or  the  Corporation  Cpurt  of 
the  city,  or  to  the  judge  thereof  in  vacation.  On  January  1,  1904,  the  foregoing  require- 
ments as  to  registration  shall  expire  by  limitation. 

3.  After  January  1,  1904,  every  male  citizen  of  the  United  States  who  has  acquired 
residence  in  this  State  in  accordance  with  section  one  (1)  of  this  article,  and  not  prev- 
iously registered  under  the  foregoing  provisions  of  this  Constitution,  shall,  as  a  further 
condition  precedent  to  registration,  have  paid  all  poll-taxes  assessed  or  assessable 
against  him  for  the  next  preceding  three  years,  or,  if  he  come  of  age  during  the  year  in 
which  he  offers,  to  register,  shall  have  paid  to  the  treasurer  of  his  county  or  city,  to 
be  accounted  for  as  other  poll-taxes,  one  dollar  and  fifty  cents  ($1.50)  ^in  lieu  of  the  first 
year's  poll-tax  to  be  assessed  against  him,  and  shall,  unless  he  be  physically  dis.qualified, 
make  application  for  registration  in  his  own  hand  writing,  without  aid  or  suggestion  or 
the  use  of  memorandum,  in  the  presence  of  an  officer  of  registration  of  the  precinct  in 
which  he  resides,  setting  forth  the  names  and  residence  of  his  parents,  his  own  name, 
age,  place  and  date  of  birth,  his  occupation  and  place  of  residence  at  the  time  and  for 
two  years  prior  to  the  date  of  his  application;  and  if  he  has  previously  voted,  then  to 
s.tate  in  what  Sta.te,  county  or  city,  and  voting  precinct  he  last  voted;  and  he  shall 
answer,  on  oath,  any  and  all  questions  propounded  to  him  by  the  registration  officer 
affecting  his  qualification  as  an  elector,  which  said  questions  and  answers  shall  be 
reduced  to  writing;  having  done  which  and  made  oath  to  his  statement,  he  shall  be 
duly  listed  by  the  registrar  of  election.  Every  person  registered  under  this  provision, 
who  is  not  blind  or  otherwise  physically  disabled,  shall  prepare  and  deposit  his  ballot 
without  aid  from  another,  on  sucn  printed  form  as  may  be  prescribed  by  law;  but  any 
voter  registered  prior  to  January  1,  1904,  may  be  aided  in  the  preparation  of  his  ballot 
by  such  officer  of  election  as  he  may  himself  designate.  The  General  Assembly  shall, 
prior  to  January  1,  1904,  provide  by  law  for  such  a  registration  of  voters  as  is  thus  set 
forth  in  Section  3  of  this  article,  to  be  held  at  least  once  in  every  year,  and  shall  enact 
such  other  laws  as  may  be  necessary  to  carry  into  effect  all  the  provisions  of  this  sec- 
tion. 

4.  The  following  persons  shall  be  excluded  from  registering  and  voting: 

(a)  Idiots,  insane  persons  and  paupers. 

(b)  Those  who  have  been  heretofore  disqualified  from  voting  by  conviction  of 
crime,  either  within  or  without  this  State  prior  to  the  adoption  of  this.  Convention  and 
whose  disabilities  shall  not  have  been  removed. 

(c)  Persons  who  have  been  convicted,  either  within  or  without  this  State,  of 
treason,  or  of  any  felony,  bribery,  petty  larceny,  obtaining  money  or  property  under 
false  pretences,  embezzlement,  forging,  perjury. 

(d)  Persons  who,  while  citizens  of  this  State,  after  the  adoption  of  this  Constitu- 
tion, fought  a  duel  with  a  deadly  weapon,  or  sent  or  accepted  a  challenge  to  fight  a 
duel,  either  within  or  without  the  bounds  of  this  State,  or  knowingly  conveyed  a  chal- 


DEBATES  OF  THE  COXSTITUTIOX AL  COXYEXTIOX  OF  VIEGIXIA.  2939 

lenge,  or  aided  or  assisted  in  any  way  in  the  fighting  of  such  a  duel;  but  the  General 
Assembly  may,  by  a  two-thirds  vote  of  each  house,  remove  the  disabilitj^  incurred  by 
any  one  under  this  paragraph  '  d.' 

5.  No  officer,  soldier,  seaman  or  marine  of  the  United  States  army  or  navy  shall 
be  deemed  to  have  gained  a  residence  in  this  State,  or  in  any  county  or  city  thereof, 
by  reason  of  being  stationed  therein;  nor  shall  any  inmate  of  a  charitable  institution, 
or  any  student  in  any  institution  of  learning,  be  regarded  as  having  either  gained  or 
lost  a  residence  by  reason  of  his  location  or  sojourn  in  such  institution, 

6.  All  elections  by  the  people  shall  be  by  ballot,  and  all  elections  by  representative 
bodies  shall  be  viva  voce,  in  which  event  the  vote  shall  be  recorded  in  this  journal  of 
the  proceedings  of  the  record  of  the  election. 

The  ballot-box  shall,  during  all  elections,  be  kept  in  view,  nor  shall  the  same  be 
opened  or  the  ballots  be  canvassed  or  counted  in  secret. 

7.  The  General  Assemibly  shall  provide  by  law  for  ballots  without  any  distin- 
guishing mark  or  symbol  for  use  in  all  State,  county,  city,  and  other  elections  by  the 
people.  All  ballots  shall  contain  the  names  of  the  candidates  and  of  the  officers  to  be 
voted  for,  in  clear  print  and  in  due  and  orderly  succession;  but  Emy  voter  may  erase 
any  name  and  insert  another.  The  General  'Assembly  shall  provide  by  law  for  the  bal- 
lots to  be  used  in  all  elections,  and  the  form  thereof  shall  be  the  same  in  all  places 
where  the  election  is  held. 

8.  No  voter,  during  the  time  of  holding  any  election  at  which  ne  is  entitled  to 
vote,  shall  be  compelled  to  perform  military  service,  except  in  time  of  war  or  public 
danger;  to  work  upon  public  roads,  or  to  attend  any  court  as  suitor,  juror,  or  witness; 
and  no  voter  shall  be  subject  to  arrest  under  any  civil  process  during  his  attendance  at 
election  or  in  going  to  or  returning  therefrom. 

9.  Any  person  who,  in  respect  of  age  or  time  of  residence,  wxuld  be  qualified  to  vote 
at  the  time  of  the  next  election,  shall  be  admitted  to  registration,  notwithstanding  that 
at  the  time  thereof  he  is  not  qualified  with  reference  to  age  or  time  of  residence,  and 
shall  be  entitled  to  vote  if  qualified  at  the  time  of  election  under  the  provisions  of  this 
Constitution. 

10.  Electors  in  county,  town,  and  city  elections  shall  possess  the  qualifications 
and  be  subject  to  the  disqualifications  heretofore  prescribed  by  this  article;  but  the 
General  Assembly  may  prescribe  a  property  qualification  of  not  exceeding  two  hundred 
and  fifty  dollars  for  electors  in  any  county,  town,  or  city  of  the  State  as  a  prerequisite 
for  voting  in  any  election  for  officers' to  be  wholly  elected  by  the  electors  of  such  county, 
city,  or  town,  other  than  m.embers  of  the  General  Assembly.  Such  action,  if  taken,  to 
be  had  upon  the  initiative  of  the  representatives  in  the  General  Assembly  from  the  city, 
town,  or  county  immediately  affected;  provided,  that  the  General  Assembly  in  its  dis- 
cretion may  m.ake  such  lawful  exemptions  from  the  operation  of  said  property  quali- 
fication as  shall  not  be  in  conflict  with  the  Constitution  of  the  United  States  or  the 
State  of  Virginia. 

11.  There  shall  be  in  each  city  and  county  an  electoral  board,  to  be  appointed 
by  the  Circuit  Court  of  the  county,  or  the  judge  thereof  in  va,cation,  or  by  the  Corpora- 
tion or  Hustings  Court  of  each  city,  or  the  judge  thereof  in  vacation;  said  board  to 
be  composed  of  three  members.  Vacancies  which  may  occur  in  said  board  shall  like- 
wise be  filled  by  said  courts  or  the  judges  thereof  in  vacation.  Said  electoral  board 
shall  appoint  the  judges,  clerks  and  registrars  of  election,  and  in  the  selection  of  judges 
of  election  representation,  as  far  as  possible,  shall  be  given  to  each  of  the  two  political 
parties  which,  at  the  general  election  next  preceding  their  appointment,  cast  the  highest 
and  next  highest  number  of  votes.  No  person  nor  the  deputy  of  any  person  holding  any 
elective  office  of  profit  or  trust  in  this  State,  or  in  any  county,  city,  or  town  thereof, 
shall  be  appointed  as  a  member  of  the  electoral  board  or  as  registrar  or  as  judge  of 
election. 

The  General  Assembly  shall  enact  such  lavs's  as  may  be  necessary  to  carry  into 
effect  the  foregoing  provision. 

For  such  registrations  as  may  occur  prior  to  January  1,  1904,  this  Convention  shall 
make  provision  by  suitable  ordinance,  which  shall  provide  for  the  appointment  by  this 
Convention  of  the  necessary  boards  of  registration. 

12.  The  General  Assembly  shall  provide  by  law  for  an  appeal  by  any  person  denied 
the  right  of  registration,  and  shall  also  provide  for  the  correction  of  illegal  and  fraudu- 
lent registration. 

13.  Every  person  qualified  to  vote  shall  be  eligible  to  hold  any  office  of  the  State, 
or  of  any  city,  county,  or  other  local  subdivision  of  the  State,  except  as  otherwise  pro- 
vided in  this  Constitution.  Men  and  women  eighteen  years  of  age  and  over  shall  be 
eligible  to  hold  the  office  of  notary  public,  and  shall  be  qualified  to  execute  the  bonds 
required  of  them  in  that  capacity. 

34.    The  General  Assembly  shall  provide  by  law  for  the  fair  and  orderly  conduct 


2940  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

of  all  elections  by  the  people  in  accordance  with  the  provisions  of  this  Constitution. 

lio.  No  person  shall  vote  at  any  legalized  primary  election  for  the  nomination  of 
any  candidate  for  public  office  unless,  he  is  at  the  time  a  registered  voter  and  qualified 
to  vote  at  the  next  succeeding  election. 

IG.  The  General  Assembly  shall  enact  such  laws  as  are  necessary  and  proper  for 
the  purpose  of  securing  the  regularity  and  purity  of  general  and  primary  elections 
and  preventing  and  punishing  any  corrupt  practices  in  connection  therewith;  and  shall 
have  power,  in  addition  to  other  penalties  and  punishm^ents  now  or  hereafter  prescribed 
by  law  for  such  offences,  to  provide  that  persons  convicted  of  them  shall  lose  the  right 
to  vote  and  hold  office. 

17.  The  treasurer  of  each  county  and  city  of  the  State  shall,  at  least  five  months 
before  any  election,  file  with  the  clerk  of  the  Circuit  or  Corporation  Court  of  his 
county  or  city,  lists  by  magisterial  districts  or  wards,  of  white  and  colored  persons 
separately,  in  alphabetical  order  verified  by  his  oath,  who  have  paid,  not  later  than 
six  months  prior  to  such  election,  the  capitation  taxes  required  by  this  Constitution  or 
the  laws  passed  in  pursuance  thereof.  The  clerk,  v/ithin  ten  days  from  receipt  thereof, 
shall  make  out  as  many  certified  copies  of  the  list  so  furnished  from  each  magisterial 
district  or  ward  as  there  are  voting  places  in  such  districts  or  wards  and  deliver  the 
same  to  the  sheriff  of  the  county,  or  serge?.nt  of  the  city,  whose  duty  it  shall  be  to  post 
one  of  said  copies,  v/ithout  delay,  at  each  voting  place  is  said  district  or  ward.  And 
within  thirty  days  after  such  notice  has  been  posted,  any  person  who  shall  have  paid 
the  capitation  tax,  but  whose  name  is  omitted  from  said  certified  list,  m^ay  after  five 
days'  notice  to  the  treasurer,  apply  to  the  judge  of  the  Circuit  or  Corporation  Court  of 
his  county  or  cit5^  to  have  said  list  corrected  and  his  name  entered  thereupon. 

The  clerk  shall  also,  within  sixty  days  after  the  filing  of  said  list  by  the  treasurer, 
forward  a  certified  copy  thereof,  with  such  correction  as  m.ay  have  been  made  by  order 
of  the  courts,  to  the  Auditor  of  Public  Accounts,  who  shall  charge  the  amount  stated 
in  such  return  against  s.uch  treasurer  in  the  settlement  of  his  accounts,  except  such 
part  as  may  have  been  previously  accounted  for.  And  a  reasonable  time  before  such 
election  the  clerk  shall  forward  to  the  judges  of  election  of  each  precinct  of  his  county 
or  city  a  like  certified  copy  of  the  list  of  those  in  the  magisterial  district  or  ward  in 
which  such  precinct  is  located  who  have  paid  the  capitation  tax  for  the  previous  year, 
which  shall  be  deemed  conclusive  evidence  of  that  fact  for  the  purpose  of  voting. 

Further  evidence  of  the  prepayment  of  the  capitation  taxes  required  by  this  Con- 
stitution as  a  prerequisite  to  the  right  to  register  and  vote  shall  be  Siuch  as  shall  be 
prescribed  by  lavf. 

Mr.  Turnbuli:  Mr.  President,  this  is  jeally  the  question  of  suffrage.  The  reports 
of  the  majorit}^  and  minority  of  the  Committee  on  Elective  Franchise  are  now  pending 
before  the  Committee  of  the  Whole  undei-  the  rules.  I  think  we  should  proceed  in 
order  with  reference  to  this  matter.  I  therefore  move  that  the  rules  be  suspended 
and  that  the  matter  of  suffrage  be  taken  up  in  Convention.  It  will  require  a  two- 
thirds  vote  of  the  members  present  to  vote  in  the  affirmative  to  susipend  the  rules.  I 
think,  if  v/e  do  that,  we  will  then  proceed  in  order  in  reference  to  this  matter,  and 
v/ill  not  have  any  question  raised  as  to  the  parliamentary  status  hereafter. 

Mr.  Brov/n:  I  would  like  to  offer  as  a  substitute  for  the  motion  of  the  gentleman 
from  Brunswick,  that  the  Convention  resolve  itself  into  Committee  of  the  Whole  for 
the  Consideration  of  the  suffrage  matter.  It  does  seem,  to  me  that  after  all  the  elab- 
orate discussions  which  have  been  had  on  every  other  question  it  would  be  strange  pro- 
cedure for  the  Convention  presumably  called  mainly  for  the  consideration  of  the  suf- 
frage question  to  deal  with  that  question  in  a  different  way  from  other  questions.  It 
seems  to  me  that  the  proper  procedure  is  foT  this  body  to  resolve  itself  into  Committee 
of  the  Whole.  Then  the  suffrage  m^atter  can  come  up,  and  this  resolution  can  be 
offered  as  a  substitute  for  the  matters  before  the  Committee  of  the  Whole.  It  seems 
to  me  that  is  the  proper  v^ay,  and  I  offer  that  as  a  substitute  for  the  motion  of  the 
gentleman  from_  Brunswick. 

Mr.  Hamilton:  Mr.  President  and  gentlemen  of  the  Convention,  I  want  to  endorse 
the  motion  of  the  gentleman  from  Bedford.  It  is,  not  right  for  us  to  practically  under- 
take to  cut  off  debate  on  this  question,  no  matter  v/hat  we  may  think.  Even  if  there 
were  only  two  or  three  people  who  differ  from  us,  they  ought  to  be  heard  in  the  Com- 
mittee of  the  Whole.  We  ought  to  give  them  a  fair  hearing  on  the  matter,  and  carry 
it  through  the  Committee  of  the  Whole,  just  as  we  have  done  v\^ith  every  other  impor- 


DEBATES  OF  THE  COXSTITUTIOXAL  CO^VEXTIO^ 


OF  YIEGIXIA. 


294:1 


tant  question.  If  we  choose  to  make  rules  to  govern  us  in  Committee  of  the  Whole 
different  from  what  we  hare  had.  and  which  are  reasonable  and  proper,  let  us  make 
them  before  we  get  into  it.  But  it  is  not  right  to  railroad  this  matter  through,  and 
not  give  these  people  a  fair  chance  to  be  heard. 

Mr.  Daniel:  I  agree  in  all  the  gentleman  from  Petersburg  has  said.  There  is 
no  idea  of  trying  to  railroad  this  matter  through,  cut  anybody  off  or  to  crowd  any- 
one. It  was  only  thought  this  subject  had  been  so  much  debated  that  it  was  not  nec- 
essary to  go  through  the  ordinary  formalities  which  have  been  pursued  as  other  mat- 
ters. No  other  subject  before  this  Convention  has  been  treated  as  this  has  been.  I 
will,  however,  in  view  of  the  objections  which  have  been  made  by  the  minority,  I  ask 
leave  to  withdraw  my  motion. 

Mr.  R.  Walton  Moore:  I  renew  the  motion.  I  think  we 'ought  not  to  spend  time 
unnecessarily  in  Committee  of  the  Whole,  in  the  consideration  of  this  subject.  I  think 
the  assurance  given  by  the  gentleman  from  Campbell,  the  chairman  of  the  Suffrage 
Committee,  that  no  effort  v:ill  be  made  to  unduly  restrict  debate  in  Convention  ought 
to  be  satisfactory  to  all  of  us.  Why  should  we  go  through  the  mill  of  the  Committee 
of  the  Whole  when  we  have  already  discussed  this  matter  up  and  down.  We  will  have 
to  repeat  in  Convention  what  we  do  in  Committee  of  the  Whole.  'Vrh.j  not  go  into 
Convention  now  with  the  understanding  that  the  debate  on  the  matter  will  be  carried 
on  in  a  reasonable  way  and  the  end  reached  as  soon  as  possible? 

Mr.  Pedigo:  I  wish  to  ask  if  you  would  be  willing  to  miake  this  compromise?  If 
you  will  agree  that  this  thing  shall  take  its  regular  course  through  the  Committee 
of  the  Whole  and  give  us  a  fair  chance  to  examine  it,  amend  it  if  we  can,  and  point 
out  its  defects,  we  on  our  side  will  agree  that  when  it  comes  into  the  Convention  we 
will  have  not  one  word  to  say;  that  what  the  Committee  of  the  Whole  reports  we  will 
make  no  further  debate  over  in  Convention. 

Mr.  R.  Waiion  Moore:  Does  not  the  gentleman  think  he  will  accomplish  his  pur- 
pose if  we  have  an  understanding  that  debate  shall  be  without  unreasonable  restric- 
tions in  Convention? 

Mr.  Pedigo:  I  do  not  think  it  will.  I  think  the  Committee  of  the  Whole  should 
consider  it  as  has  been  done  with  every  other  matter.  I  have  no  idea  that  the  mem- 
bers of  this  Convention,  even  those  in  the  majority,  are  entirely  satisfied  with  this 
thing;  and  I  think  by  converting  a  few  of  them  we  can  get  them  to  consider  and  im- 
prove this  resolution  a  little.  I  think  almost  anything  we  could  do  to  it  would  make 
it  better.  I  do  not  doubt  btit  that  we  may  do  some  good,  and  I  ask  that  it  may 
go  through  the  Committee  of  the  Whole. 

Mr.  Walker:  Mr.  President,  I  cannot  see  the  necessity  for  considering  this  ques- 
tion of  suffrage  in  Committee  of  the  Whole  and  afterwards  in  Convention.  The  mem- 
bers of  this  Convention,  except  those  representing  the  minority  party  in  the  State 
have  been  considering  this  question  in  conference  for  many  weeks.  They  have  had 
an  opportunity  to  amend  it  in  any  way  they  saw  it.  They  have  had  all  the  bene- 
fit that  could  be  desired  from  the  consideration  of  it  in  Committee  of  the  Yv^hole 
The  only  purpose  mentioned,  which  vrould  make  it  desirable  to  consider  the  mat- 
ter in  Committee  of  the  Whole  is  that  debate  on  the  report  will  not  be  re- 
stricted. That  could  be  very  easily  accomplished  by  adopting  a  resolution  in  Con- 
vention that  as  to  this  particular  matter  the  pending  question,  or  the  previous  ques- 
tion is  not  to  be  called.  The  whole  thing  could  then  be  settled  without  any  difficulty, 
by  giving  the  fullest  freedom  of  debate,  and  avoiding  the  clumsy  proceeding  of  going 
first  through  the  Committee  of  the  Whole,  and  afterwards  through  the  Convention  I 
call  attention  further  to  the  fact,  Mr.  President,  that,  under  the  rules,  this  resolution 
would  not  be  referred  to  the  Committee  of  the  Whole.  Unless  the  Convention,  by  a 
separate  resolution,  should  determine  to  take  it  up  for  immediate  consideration  the 
proper  disposition  to  make  of  it  would  be  to  refer  it  to  the  Committee  on  Elective 
Franchise.    I  see  no  reason  why  this  Convention  should  not  proceed  immediately  to 


2942 


DEBATES  OE  THE  CONSTITUTIOIs'AL  CONVENTIOIsT  OE  VIRGINIA. 


the  consideratioii  of  this  resolution,  and,  if  it  is  necessary  to  do  so,  adopt  a  rule  that 
will  allow  the  fullest  freedom  of  debate  in  Convention. 

Mr.  Summers:  Mr.  President  and  gentlemen  of  the  Convention,  I  will  state  that 
I  have  read  something  in  the  newspapers  about  this  matter,  but  never,  until  this 
morning,  did  I  read  this  resolution  now  presented  here.  I  know,  gentlemen,  that  I  am 
talking  and  speaking  to  100  liberal,  honorable  gentlemen,  who  have  considered  this 
matter  fully.  I  can  conceive  of  no  reason  why  this  article  on  suffrage  should  not  go 
to  the  Committee  of  the  Whole.  We  can  then  proceed  with  it  in  regular  order.  I 
would  prefer  not  to  go  into  Committee  of  the  Whole  until  Wednesday  or  Thursday; 
but  we  are  at  your  mercy.  I  am  not  one  of  that  chivalric  crowd  who  would  die  before 
asking  a  favor.  If  I  only  represented  50,000  men  here  I  would  raise  no  objection  to 
considering  this  in  Convention  at  once.  But  I  represent,  as  I  conceive,  in  this  body, 
the  liberties  and  rights  of  200,000  men,  and  I  v/ould  be  recreant  in  my  duty  to  the 
country  from  which  I  hail  if  I  did  not  insist  upon  giving  proper  consideration  to  this 
question.  The  most  honorable  man,  the  most  noble  of  the  C^sars,  has  told  us  that 
we  shall  have  our  rights  without  limit,  and  I  knov,^  we  shall  have  them.  It  is  mere  im- 
pudence upon  the  part  of  a  Republican  to  say  that  he  is  ready  to  go  into  the  discus- 
sion of  a  matter  where  the  rights  of  200,000  nien  are  to  be  considered  and  adjusted, 
within  twelve,  tw^enty-four,  fortj^-eight,  or  one  hundred  hours,  or  one  hundred  days. 

Now,  gentlemen,  the  siege  of  Troy  has  commenced.  It  has  commenced  at  this 
hour  and  moment.  The  people  from  my  country  will  never  withdraw  from  this  con- 
flict until  Helen  is  restored  and  the  invader  vanquished  from  this  land  Of  freedom. 
The  tocsin  has  already  sounded  in  my  county,  where  there  are  Democratic  manhood 
suffrage  men,  who  are  raised  above  the  objection  of  the  hour  and  the  day.  They  will 
resist,  as  will  others  in  every  district  in  the  State,  any  attempt  to  invade  what  they 
conceive  to  be  their  rights. 

I  ask  you,  gentlemen,  to  see  to  it  that  the  people  in  niy  mountains,  and  the  people 
of  my  valleys  may  have  a  full  opportunity,  through  their  representatives,  for  the  dis- 
cussion of  this  most  important  matter.  I  appreciate  the  wisdom  of  my  Democratic 
comrades.  I  believe  they  are  v/ise,  but  God  has  so  created  human  beings  that  men 
of  wisdom  have,  at  times,  become  misguided,  especially  in  the  heat  of  passion.  I  ask 
you,  gentlemen,  to  submit  this  matter  to  the  Committee  of  the  Whole,  and  I  ask  you 
further  that  the  discussion  of  it  may  be  postponed  until  next  Wednesday.  I  believe  I 
represent  200,000  voters  of  one  party  and  100,000  in  the  other  to-day. 

It  would  be  impudence  upon  my  part  to  say  that  I  know  anything  about  your 
discussions  in  conference.  I  know  nothing  about  them.  You  may  convince  me  that 
this  measure  is  right  and  proper,  and  is  the  only  proper  one  on  earth,  and  if  you  con- 
vince me  that  it  is  for  the  good  of  the  Commonwealth  I  am  with  you  heart  and  hand. 
Do  not  consider  us  as  being  the  ignoramuses  of  the  State,  but  give  us  the  benefit  of 
your  learning,  and  of  the  light  that  you  have  had  here  during  the  past  nine  months. 

I  ask  of  you,  gentlemen,  this  favor.  The  fact  that  you  have  granted  to  the  minority 
this  privilege,  will  only  make  you  greater  and  mightier  among  your  OYm  people.  I 
ask  only  that  this  matter  may  be  taken  up  in  Committee  of  the  Whole,  and  that  it  may 
not  be  taken       until  next  Wednesday  or  Thursday. 

The  President:  Yes,  sir;  the  question  is  on  agreeing  to  the  amendment  offered 
by  the  gentleman  from  Bedford. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — Ayes,  30;  noes,  31. 

The  amendment  v/as  rejected. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Brunswick, 
accepted  by  the  gentleman  from  Fairfax  (Mr.  Moore)  that  the  Committee  of  the  Whole 
be  discharged  from  the  further  consideration  of  the  reports  on  suffrage. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — Ayes,  29;  noes,  30. 

The  motion  was  rejected. 


DEBATES  OF  THE  COIs^STITUTIOXAL  COXVEIs^TIOX  OF  VIEGIis^IA. 


2943 


Mr.  Glass:  Mr.  President,  I  now  offer  this  article,  and  move  that  the  Convention 
proceed  to  the  immediate  consideration  thereof. 

The  ayes  and  noes  were  ordered,  and  being  taken,  resulted — Ayes,  31;  noes,  29. 
The  motion  was  agreed  to. 

Mr.  Daniel:  Mr.  President,  the  resolution  which  I  had  the  honor  to  offer  a  short 
while  ago  is  a  resolution  prepared  by  a  conference  of  the  Democratic  members  of  this 
body.  It  is  a  composite,  compromise  scheme  of  suffrage,  which  is  the  result  of  their 
deliberations;  and  on  Friday  last  the  delegate  from  Lynchburg  and  myself  were  in- 
structed by  that  conference  to  present  it  to  the  convention,  and  asks  its  immediate 
consideration.  I  will  state,  in  order  that  it  may  be  a  matter  of  record,  that  this  con- 
ference was  not  a  caucus.  It  v/as  simply  a  body  of  consultation,  and  no  one  is  con- 
strained or  forced  to  vote  for  this  resolution  by  any  action  of  that  body.  It  rests 
only  upon  such  moral  force  and  influence  as  their  collective  judgment  may  give  it. 

The  subject  which  is  embodied  in  this  resolution  has  been  discussed  in  this  Com- 
monwealth for  nearly  a  year,  and  in  this  body  it  has  been  accurately  discussed  for  five 
or  six  months.  The  members  of  this  Convention  have  become  saturated  with  the  details, 
and  I  speak  modestly  when  I  say  that  they  are  satiated  with  the  discussion  of  it. 
I  shall  not,  therefore,  Mr.  President,  enter  into  any  general  discussion  of  the  subject 
of  suffrage;  but  shall  feel  that  I  best  perform  the  task  which  the  action  of  the  Demo- 
cratic conference  devolved  on  me  by  stating,  as  clearly  and  as  briefly  as  I  may,  what 
this  scheme  of  suffrage  is  and  the  considerations  which  led  the  majority  of  that  body 
to  recommend  it. 

This  scheme  of  suffrage,  Mr.  President,  has  been  commonly  called  the  Glass  amend- 
ment, being  the  amendment,  in  large  measure,  offered  by  that  distinguished  gentleman 
to  the  minority  report  of  the  Committee  on  Suffrage,  which  was  submitted  to  this  body 
in  September  last,  and  it  follows  also  in  large  measure,  its  fundamental  lines.  It  is 
also  true,  however,  that  many  of  the  features  are  common  to  the  majority  report, 
which  was  also  submitted  in  September  last,  and  that  some  of  the  provisions  as  to 
elections  are  also  taken  therefrom. 

The  first  proposition  of  this  scheme  of  suffrage  is  to  provide  for  residence  in  the 
State  of  two  years,  in  the  county,  city,  or  town  in  which  he  shall  offer  to  vote  for 
one  year,  and  in  the  precinct  where  he  shall  offer  to  vote  for  thirty  days  next  preced- 
ing the  election  in  v^'hich  he  shall  so  offer  to  vote.  This  provision  as  to  residence  was 
recommended  in  the  Constitution  in  order  that  the  voter  may  be  thoroughly  identified 
with  the  community  and  may  have  common  lot  with  the  people  of  the  State,  by  a  fixed 
residence  for  a  definite  period. 

It  is  next  provided  that  he  shall  be  registered  as  may  be  prescribed  by  law,  and 
then  that  he  shall  have  paid,  six  months  prior  to  the  election  at  which  he  shall  offer 
to  vote,  all  poll-taxes  assessed  or  assessable  against  him  for  the  preceding  three  years, 
under  the  provisions  of  this  Constitution  or  the  laws  made  in  pursuance  thereof, 

I  deem  it  proper  to  call  attention  to  the  fact  that  it  does  not  concern  nor  deal 
with  the  poll-tax  which  is  now  levied  upon  each  male  citizen  of  21  years  of  age.  It 
has  to  do  only  with  the  poll-tax  which  is  imposed  by  the  terms  of  this  Constitution, 
which  will  not  go  into  effect  until  this  Constitution  is  adopted. 

The  original  minority  report,  as  at  first  framed,  did  not  accumulate  the  poll-tax 
at  all.  As  afterwards  amended,  in  consultation  with  these  gentlemen  who  joined  in 
the  minority  report,  it  was  accumulated  altogether  in  the  hope  that  it  might  be  a  fair 
basis  of  compromise  for  the  Democratic  members  of  this  committee  to  meet  upon. 
There  are  a  number  of  us  who  are  opposed  to  the  accumulation  of  the  poll-tax;  but  this 
provision,  embodied  at  the  recommendation  of  the  conference,  struck  a  medium  line 
which  found  the  approval  of  its  general  judgment.  It  provides  only  for  its  accumula- 
tion for  the  limited  time  of  three  years. 

The  next  provision  to  which  I  call  attention  is  that  no  person  otherwise  qualified 
to  vote  under  the  provisions  of  this  Constitution  shall  lose  his  right  to  vote  in  the 


2944  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

precinct  from  which  he  has  removed  to  another  precinct,  in  the  same  city  or  county, 
until  after  the  expiration  of  thirty  days  from  the  time  of  such  removal;  and  the  fur- 
ther provision  that  the  paymment  of  a  poll-tax  as  a  prerequisite  to  vote  shall  not  be 
required  to  pay  as  prerequisite  to  the  right  of  suffrage,  the  poll-tax  for  the  years 
preceding,  not  exceeding  three,  for  which  such  tax  shall  have  become  due  and  payable. 

The  next  provision  is  that  the  collection  of  the  poll-tax  shall  not  be  enforced  by 
distress  or  otherwise  until  it  shall  have  become  three  years  past  due.  There  is  then 
an  exemption  of  those  who  have  served  in  the  army  and  navy  of  the  United  States,  or 
of  the  Confederate  States,  or  in  any  State  of  the  United  States,  from  the  payment  of 
this  poll-tax,  as  a  prerequisite  to  voting. 

The  second  section  of  this  scheme  of  suffrage  provides  that  "prior  to  the  first  day 

of  ^  1902,  and  again  pior  to  the  first  day  of   '  ,  1902,  and  again  prior 

to  the  first  day  of  January,  1904,  there  shall  be  a  general  registration  of  voters  in.  every 
county  and  city  of  the  State.  The  dates  are  left  out  until  it  may  be  determined  what 
shall  be  done  with  this  Constitution,  and  they  will  be  filled  in  either  by  the  Com- 
mittee on  Final  Revision  or  by  this  body,  before  this  subject  is  finally  dealt  with. 

This  section  contains  a  statement  of  those  who  shall  hereafter  be  entitled  to  the 
right  of  suffrage  in  this  Commonwealth.  Those  v.^ho  are  put  on  the  permanent  roll 
must  be  registered  prior  to  1904.  After  that  time  a  new  and  different  basis  of  suf- 
frage is  adopted.  This  is  known  as  a  temporary  scheme  of  suffrage.  It  is,  intended 
to  apply  to  the  present  electors  and  those  who  may  be  elected  prior  to  1904.  Those  per- 
sons who  are  thus  given  the  right  of  suffrage  are: 

First.  A  person  who,  prior  to  the  adoption  of  this  Constitution,  served  in  time  of 
war  in  the  army  or  navy  of  the  United  States  or  the  Confederate  States,  or  of  any  State 
of  the  United  States. 

This  provision  was  originally  in  both  the  majority  and  minority  reports.  It  has 
found  no  disfavor  that  I  am  aware  of,  and  I  believe  the  Convention  will  take  pleasure 
in  adopting  it. 

Second.  The  son  of  a  person  who,  prior  to  the  adoption  of  this  Constitution,  served 
in  time  of  war  in  the  army  or  navy  of  the  United  States,  or  of  the  Confederate  States, 
or  of  any  State  of  the  United  States. 

This  provision  was  inserted  in  this  article  as  a  matter  of  compromise.  There 
were  a  number  of  suffrage  schemes,  some  of  which  seemed  to  be  upon  the  eve  of  find- 
ing approval  in  the  conference,  which  provided  that  soldiers  and  their  descendants,  for 
any  generation,  should  be  entitled  to  suffrage.  It  was  strongly  antagonized  by  many 
on  account  of  the  hereditary  principle  which  it  involved,  and  because  "descendants' 
were  considered  to  be  too  remote  from  the  service  which  was  thus  honored.  As  a 
matter  of  compromise,  the  "son"  of  soldiers  was  inserted.  That  compromise  was 
deemed  by  those  who  favor  it  to  rest  on  a  sound  basis.  In  no  State,  Mr.  President, 
could  that  basis  be  sounder  than  in  our  own,  where  so  many  of  our  people  were  in  the 
military  service.  The  whole  State  was  ravaged  by  the  presence  of  two  armies,  by 
reason  of  its  being  the  battlefield  of  the  Civil  War  to  a  greater  extent  that  any  other 
section  of  the  country.  The  sons  of  those  who  are  now  put  upon  the  roll  were,  in 
large  measure,  those  who  were  denied  the  benffits  of  education  and  the  advantages  in 
life  which  others  could  obtain,  because  their  fathers  were  engaged  in  the  war,  and 
many  of  them  are  the  sons  of  fathers  who  fell  in  the  war,  and  who,  of  necessity, 
became,  themselves,  householders  or  heads  of  families  in  their  fathers'  stead.  It  is 
not  thought  that  this  violates  any  principle  of  the  Constitution  of  the  United  States. 
It  has  no  color  in  it,  and  is,  therefore,  not  amenable  to  any  of  the  amendments  of 
the  Constitution  of  the  United  States.  It  is  believed  that  we  can  fairly  and  justlr 
embody  it  in  this  Constitution. 


DEBATES  OF  THE  CONSTITUTIOI^AL  CONVENTION  OE  VIRGINIA.  2945 

Third.  A  person  who  shall  have  paid  to  the  State,  for  the  year  preceeding  that  in 
which  he  offers  to  register,  taxes  amounting  to  as  much  as  one  dollar  ($1.00)  on  property- 
owned  by  and  assessed  against  him. 

This  provision  was  not  in  the  original  draft  of  the  minority  report.  It  was  in- 
serted in  that  report,  and  is  inserted  in  this  report,  as  a  matter  of  compromise.  It 
is  not  a  property  qualification  for  the  right  of  suffrage,  or  rather  to  speak  more  accur- 
ately, it  is  not  a  property  prerequisite  to  the  right  of  suffrage.  It  was  felt  that  some  who 
could  not  come  up  to  the  conditions  of  this  scheme  of  suffrage  and  were  yet  to  such 
a  degree  identified  with  the  permanent  interests  of  the  State  as  to  be  entitled  to  a 
vote  in  the  administration  of  her  affairs  might  be  fairly  and  properly  included  in 
this  roll.  This  is  an  enfranchising  clause  which  may  properly  be  termed  a  collateral 
qualification. 

The  fourth  provision  for  this  temporary  scheme  of  suffrage  is  as  follows: 

Fourth.  A  person  v/ho  is  able  to  read  any  section  of  this.  Constitution  which  may 
be  submitted  to  him  by  the  officers  of  registration  and  give  a  reasonable  explanation  of 
the  same;  or,  being  a  pers^on  who  cannot  for  himself  read  such  section  of  the  Constitu- 
tion, shall  be  able  to  understand  and  give  a  reasonable  explanation  thereof  when  read 
to  him  by  the  officers  of  registration. 

This  clause,  Mr.  President,  is  based  upon  what  is  known  as  the  Mississippi  Con- 
stitution, although  it  has  been  amended  in  some  respects,  and  is  also  an  amendment 
to  the  recommendation  of  tjie  report  of  the  minority  of  the  Committee  on  Suffrage. 

It  is  an  amendment  in  that  it  requires  that  a  person  who  reads  the  Constitution 
shall  also  be  able  to  give  a  reasonable  explanation  thereof;  but  it  is  lilve  the  Missis- 
sippi Constitution  and  like  the  recommendation  of  the  report  of  the  minority  of  the 
Committee  on  Suffrage  in  respect  to  the  provision  that,  although  he  may  not  be  able  to 
read,  he  shall  be  qualified  to  vote  if  he  is  able  to  understand,  and  give  a  reasonable 
explanation  to  the*  officersi  of  registration  of  any  section  of  the  Constitution.  So  that 
any  person  in  this  Commonwealth,  whether  he  can  read  or  no,  whether  he  be  a  prop- 
erty-holder or  no,  whether  he  be  the  son  of  a  soldier  or  no,  whether  he  shall  have  been 
a  soldier  or  no,  shall  be  entitled  to  the  right  of  suffrage  if  he  has  sufficient  intelligence 
to  understand  and  give  a  reasonable  explanation  to  the  officers  of  registration  of  any 
section  of  the  Constitution  of  his  country. 

This  clause  in  the  suffrage  plan,  Mr.  President,  has  led  to  much  controversy.  It 
was  recommended  and  adopted  by  the  conference  out  of  the  necessities  of  the  case. 
Originally,  I  believe,  but  a  single  member  of  the  Committee  on  Suffrage  and  but  two 
members  of  this  body  were  willing  to  recommend  an  understanding  clause.  But  upon 
reflection,  and  after  comparing  it  with  other  clauses  they  have  fi.nally,  both  in  commit- 
tee and  in  conference,  preferred  it  to  the  others:  I  shall  not  take  up  your  time  in 
stating  what  may  be  the  objections  to  this  clause.  Upon  its  face  it  is  ideal.  These 
things,  however,  may  be  said  in  its  favor.  First,  it  is  an  historical  clause  of  suf- 
frage in  the  basic  principle  which  attaches  to  it.  It  embodied  in  this  measure  for 
but  a  brief  period,  and  is  applicable  only  to  the  present  electorate.  It  is  in  no  sense 
invasive  of  any  constitutional  right  of  the  English-speaking  people,  and  it  does  not 
trench,  in  any  particular,  upon  the  Constitution  of  the  United  States.  This  test  of 
suffrage  has,  at  least,  publicity  to  recommend  it.  It  will  be  tested,  not  in  the  corner, 
but  in  the  full  blaze  of  the  midday  sun  with  the  whole  public  as  witnesses.  Public 
opinion  and  publicity  are,  after  all,  the  greatest  of  all  human  guarantees  of  fairness, 
honesty  and  freedom.  Whatever  criticism  may  be  pronounced  upon  this  suffrage  clause, 
it  has,  at  least,  these  recommendations  in  its  favor.  I  will  state  here,  Mr.  President, 
that  the  very  gravity  of  the  condition  of  affairs  in  our  Commonwealth  and  the  very 
great  diversification  of  condition  led  to  the  adoption  of  the  clause. 

There  is  probably  no  State  of  the  American  Union  that  is  environed  by  more 
difficulties  in  this  regard  than  is  the  State  of  Virginia. 


2946  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

If  any  one  in  this  body  had  been  called  upon  to  prepare  a  suffrage  scheme  which 
would  renovate  and  elevate  the  electorate  for  the  three  or  four  States,  North,  East, 
South  or  West — they  could  not  have  encountered  greater  difficulties  than  were  pre- 
sented to  this  body.  There  was  the  difficulty  of  the  Constitution  of  the  United  States, 
which  required  that  there  should  be  no  color  in  any  provision  to  be  adopted.  There 
were  the  platforms  of  the  Democratic  party  and  the  promises  of  those  who  represented 
it,  which  confined  your  action  within  certain  limits.  There  was  a  greater  diversity 
of  local  interest  and  local  situations  than  in  almost  any  other  State.  There  was  the 
general  tendency  to  universal  suffrage  in  the  country,  an  atmosphere  into  which  this 
object  had  to  be  admitted.  The  curriculum  of  qualifications  which  might  be  properly 
required  for  suffrage  were  few — property,  education,  the  payment  of  a  capitation  tax — 
these  and  a  few  others,  comprehended  the  whole  list.  There  were  many  who  were 
opposed  to  any  hereditary  principle  as  a  qualification  for  the  exercise  of  the  right  of 
suffrage.  The  collision  of  those  forces  evolved  the  disposition  which  was  was  made 
of  it. 

We  have  heard,  Mr.  President,  very  many  objections  to  the  constitutionality  of 
this  clause.  So  far  from  being  unconstitutional,  it  is  the  single  clause  respecting  the 
right  to  vote  adopted  by  any  State  of  the  American  Union  which  has  been  dissected 
by  the  Supreme  Court  of  the  United  States  and  come  from  trial  before  that  tribunal 
with  its  unanimous  and  unhesitating  approval.  I  will  call  the  attention  of  the  Con- 
vention to  the  case  of  Williams  against  the  State  of  Mississippi.  It  is  to  be  found  in 
the  117th  volume  of  the  United  States  Reports,  at  page  213.  I  will  read  first  from 
the  syllabus  of  that  report: 

The  provisions  in  Section  241  of  the  Constitution  of  Mississippi  prescribing  the 
qualifications  for  electors;  in  Section  242,  conferring  upon  the  Legislature  power  to 
enact  laws  to  carry  those  provisions  into  effect;  in  Section  244,  making  ability  to  read 
any  section  of  the  Constitution  or  to  understand  it  when  read,  a  necessary  qualification 
to  a  legal  voter;  and  of  section  264,  making  it  a  necessary  qualiflcaMon  for  a  grand  or 
petit  juror  that  he  shall  be  able  to  read  and  write;  and  sections  2358,  3643  and  3644  of 
the  Mississippi  code  of  1892,  with  regard  to  elections  do  not,  on  their  face,  discriminate 
between  the  white  and  negro  races,  and  do  not  amount  to  a  denial  of  the  equal  protec- 
tion of  the  law,  secured  by  the  Fourteenth  Amendment  to  the  Constitution;  and  it  has 
not  been  shown  that  their  actual  administration  was  evil,  but  only  that  evil  was  pos- 
sible under  them. 

There  is  no  suffrage  clause  whatever  invented  by  the  wit  of  a  man,  either  in 
ancient  or  modern  days  under  which  fraud  is  not  possible.  Even  the  old  property 
clause,  which  was  in  fashion  in  this  State  generations  ago,  was  often  made  the  basis 
of  fraudulent  operations.  The  ballot  system,  which  has  found  favor  with  the  whole 
English-speaking  people,  and  which  has  not  been  antagonized  to  any  great  degree  in 
this  body  by  any  one,  is  acknowledged  to  have  been  more  fruitful  of  fraud  than  the 
system  which  it  displaced.  If  we  have  to  contemplate  the  fact,  which  we  shall  not 
blink,  that  there  is  some  possibility  of  fraud  under  this  provision,  I  have  to  say  as 
there  was  no  other  suffrage  provision  we  could  adopt  which  would  not  also  have 
been  open,  in  some  degree,  to  fraud,  and  as  those  which  were  recommended  and  were 
possibly  less  open  to  fraud  were  more  offensive  in  the  principle,  we  felt  that,  not- 
withstanding fraud  might  arise  under  this  provision,  we  should  adopt  it. 

I  think  that  the  opinion  of  the  Supreme  Court  of  the  United  States  as  to  the  ad- 
ministration of  this  clause  has  been  often  extravagantly  stated.  While  I  do  not  wish 
to  prolong  my  remarks,  further  than  may  be  essential  to  the  presentation  of  this  scheme, 
yet  I  may  be  pardoned,  I  hope,  if  I  read  briefly  from  some  portions  of  this  opinion. 

The  President:  The  hour  of  two  o'clock  having  arrived,  the  Convention  will  now 
stand  adjourned  until  to-morrow  at  ten  o'clock  A.  M. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2947 


TUESDAY,  April  1,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  C.  D.  Waller. 

HOURS  OF  MEETING. 

Mr  Glass:    Mr.  President,  I  offer  the  following  resolution: 

\ 

Resolved,  That  commencing  with  to-day,  the  Convention  hold  two  sessions  daily, 
from  10  o'clock  A.  M.  to  2  o'clock  P.  M.  and  from  3  P.  M.  to  6  o'clock  P.  M. 

The  resolution  was  agreed  to. 

The  President:  The  unfinished  business  this  morning  is  the  consideration  of  the 
article  on  suffrage.  The  gentlemon  from  Campbell  (Mr.  Daniel)  is  entitled  to  the 
floor. 

Mr.  Daniel:  Mr.  President,  on  yesterday  when  the  convention  took  a  recess  until 
this  morning  I  was  about  to  read  certain  passages  in  the  case  of  Williams  against 
Mississippi  in  the  170th  volume  of  the  United  States  Reports,  page  222,  with  a 
view  of  showing  the  lucid  opinion  of  that  tribunal  as  to  the  constitutionality  of  an 
understanding  clause  similar  to  that  now^  before  us  in  an  article  on  suffrage.  In  the 
course  of  its  opinion  the  Supreme  Court  quoted  the  following  language  from  the  case 
of  Radcliffe  vs.  Beale,  in  20  Southern  Reports,  865,  as  follows: 

Within  the  fields  of  permissible  action  under  the  limitations  imposed  by  the  Federal 
Constitution,  the  convention  swept  the  field  of  expedients,  to  obstruct  the  exercise  of 
suffrage  by  the  negro  race. 

After  quoting  this  language  and  certain  other  language  of  that  sort  (the  Supreme 
Court  of  Mississippi)  the  Supreme  Court  of  the  United  States  said. 

But  nothing  tangible  can  be  deduced  from  this.  If  weakness  w^ere  to  be  taken 
advantage  of  it  was  to  be  done  within  the  field  of  permissible  action  under  the  limita- 
tion imposed  by  the  Federal  Constitution,  and  the  means  of  it  were  the  alleged  charac- 
teristics of  the  negro  race,  not  the  administration  of  the  law  by  officers  of  the  State. 

Beside,  said  the  court,  the  operation  of  the  Constitution  and  laws  is  not  limited  by 
their  language  or  effects  to  one  race.  The  weak  and  vicious  white  men,  as  well  as  the 
weak  and  vicious  black  men,  and  whatever  is  sinister  in  their  intention,  if  anything 
can  be  prevented  by  both  races  by  the  exertion  of  that  duty  which  voluntarily  pays 
taxes  and  refrains  from  crime. 

This  is  the  sedate  and  luminous  opinion  unanimously  given  by  that  high  court. 
It  further  said: 

It  cannot  be  said  therefore,  that  the  denial  of  the  equal  protection  of  the  laws 
arises  primarily  from  the  Constitution  and  laws  of  Mississippi,  nor  is  there  any  suffi- 
cient allegation  of  an  evil  and  discriminating  administration  of  them.  The  only  allega- 
tion is  *  *  *  by  granting  a  discretion  to  the  said  officers,  as  mentioned  in  the 
several  sections  of  the  Constitution  of  the  State,  and  the  statute  of  the  State  adopted 
under  the  said  Constitution,  the  use  of  which  discretion  can  be  and  has  been  used  by 
said  oflicers  in  the  said  Washington  county  to  the  end  here  complained  of — to  wit,  the 
abridgment  of  the  elective  franchise  of  the  colored  voters  of  Washington  county,  that 
such  citizens  are  denied  the  right  to  be  selected  as  jurors  to  serve  in  the  Circuit  Court 
of  the  county,  and  that  this  denial  to  them  of  the  right  to  equal  protection  and  benefits 
of  the  laws  of  the  State  of  Mississippi  on  account  of  their  color  and  race,  resulting  from 
the  exercise  of  the  discretion  partial  to  the  white  citizens  is  in  accordance  with,  and  the 
purpose  and  intent  of,  the  framer  of  the  present  Constitution  of  said  State.    *    *  * 

To  this  a.ssault  upon  the  constitutionality  of  this  law,  the  court  responded: 


2948  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 

It  will  be  observed  that  there  is  nothing  direct  and  definite  in  this  allegation,  either 
as  to  means  or  time  as  affecting  the  proceedings  against  the  accused.  There  is  no 
charge  against  the  officers  to  whom  is  submitted  the  selections  of  grand  or  petit  jurors, 
or  those  who  secure  the  lists  of  the  jurors.  There  is  an  allegation  of  the  purpose  of 
the  Convention  to  disfranchise  citizens  of  the  colored  race,  but  with  this  we  have  no 
concern,  unless  the  purpose  is  executed  by  the  Constitution  or  laws  by  those  who 
administer  them. 

And  then  the  court  held  that  a  similiar  clause  in  the  Constitution  of  Mississippi 
was  constitutional  if  fairly  administered. 

No  law  which  does  not  give  appeal  protection  to  all  classes  is  constitutional,  in  so 
far  as  it  is  fraudulently,  false,  and  evasively  administered.  With  this  class  of  cases 
I  have  had  some  experience  at  the  bar.  Twenty  years  ago,  in  the  United  States  Court 
at  Lynchburg,  before  the  Hon.  Alexander  Rives,  judge  thereof,  I  had  the.  honor  to 
defend  three  judges  of  Virginia — Judge  Hill,  of  Buckingham;  Judge  Simmons,  of  Bote- 
tourt, and  Judge  Griffin  of  Roanoke. 

They  were  charged  with  a  violation  of  the  fourteenth  amendment  to  the  Consti- 
tution, in  that  they  had  not  put  colored  men  upon  juries.  It  was  a  fact  that  they  had 
not  done  so,  and  the  deduction  was  attempted  to  be  drawn  that  they  had  not  respected 
the  constitutional  amendment,  but  had  violated  it  in  not  so  doing.  The  court,  in  its 
instruction,  took  an  adverse  viev-  to  the  defense  oi  these  judges  and  yet  not  a  single 
one  of  them  was  convicted,  and  one  of  them  was  acquitted  by  a  jury  which  was  largely 
composed  of  the  negroes  themselves — much  to  their  honor. 

I  refer  to  this  case  to  show  that  in  so  far  as  the  law  is  falsely  administered,  and 
so  far  only,  is  it  constitutional. 

The  court,  in  maintaining  the  validity  of  this  law,  maintains  that  it  is  a  law  cap- 
able of  fair  administration.  That  is,  indeed,  the  very  gist  of  its  opinion,  that  upon  its 
face  it  is  a  fair  and  just  law,  and  one  capable  of  fair  administration.  So  that  no 
general  allegation  of  fraudulent  intent,  no  general  allegation  of  fraudulent  execution, 
nothing  but  the  specific  showing  of  a  particular  act  which  was  violative  of  its  intent 
and  spirit  can  impair  any  proceedings  under  it. 

Mr.  Summers:  This  case,  the  Williams  case,  this  great  body  is  familiar  with;  but 
I  suppose  I  am  more  familiar  with  the  case,  as  I  have  a  brief  of  the  counsel  in  the 
case.  I  would  like  to  ask  a  few  questions  of  the  gentleman,  just  for  information.  The 
first  question  is:  If  the  allegations  of  counsel  in  that  bill  had  prevailed,  would  not 
the  decision  of  that  court  in  view  of  the  California  cases  have  been  different?  That 
is  the  first  question.  Then,  if  the  counsel  (Mr.  Jones)  for  the  prisoner,  had  prepared 
his  case  and  proved  that  this  lav\^  had  been  enforced  for  the  purpose  of  illegally  keeping 
from  the  right  of  suffrage  the  negroes  and  a  certain  class  of  whtes,  would  not  the 
decision  have  been  otherwise?  Third,  has  there  ever  been  any  decision  or  intimation 
of  a  decision  but  what  if  the  attorney,  Jones,  or  Williams,  the  negro,  who  was  hung, 
but  what  the  decision  of  the  court  would  have  been  entirely  different.  And  then, 
fourth,  and  this  is  the  last  question,  was  it  not  a  thing  that  was  ever  dreamed  of  by 
counsel  on  the  other  side,  and  was  it  not  love  of  talk  upon  the  part  of  the  court  that 
gave  to  the  v/orld  the  benefit,  or  rather  the  curse,  of  that  decision? 

Mr.  Daniel:  Well,  I  will  not  attempt  to  answer  all  those  questions  at  once.  I 
will  get  the  stenographer  to  read  them  one  by  one  and  answer  them  in  their  turn. 

My  answer  to  the  first  question  is  that  I  think  not,  in  view  of  what  the  court  says: 
"  It  vrill  be  observed,"  says  the  court  in  this  case,  "  that  there  is  nothing  direct  and 
definite  in  this  allegation  either  as  to  means  or  time  as  affecting  the  proceeding  against 
the  accused.    The  court  itself  has  answered  that  question. 
Mr.  Summers:    I  do  not  think  so. 

Mr.  Daniel:  I  have  already  stated  that  if  there  is  a  specific  allegation  of  a  specific 
fraud,  such  as  a  court  can  take  congnizance  of  it,  it  will  hear  that  allegation,  and  if 
it  is  sustained  by  proof  the  court  would  set  aside  anything  that  rested  on  that  fraud. 
"  If  your  right  eye  offend  thee  cast  it  out."    If  it  affected  a  precinct  it  would  cast  out 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


2949 


the  precinct.  Now,  furthermore,  I  will  meet  the  gentleman's  inquiry  in  its  breadth.  If 
it  were  shown  that  the  law  were  such  that  it  were  absolutely  incapable  of  reasonable 
fairness  in  its  administration  of  it  the  court  might  conclude,  as  it  did  in  the  case  of 
Mississippi  against  Williams,  118  U.  S.  Report  to  set  aside  the  whole  act  if  there  was 
a  charge  of  fraud  in  its  administration  and  the  fraud  could  not  be  prevented.  But 
the  court  in  this  case  discriminated  it  from  the  Chinese  case,  and  said  that  they  were 
not  analogous. 

So.  that,  if  the  delegate  from  Washington  had  read  this  opinion  he  would  have 
seen  that  the  court  in  that  opinion  especially  differentiated  such  a  proposition  as  we 
are  maintaining  from  the  one  in  which  was  set  aside  the  law  in  the  Chinese  case,  and 
did  hold  that  this  was  a  law  capable  of  fair  administration. 

Mr.  Summers:  If  it  had  been  proven  as  plainly  as  the  cases  in  California,  that 
there  was  fraud  in  the  administration,  what  v/ould  have  been  the  result  of  it? 

Mr.  Daniel:  It  would  depend  upon  the  nature  and  extent  of  that  fraud.  If  that 
fraud  affected  a  single  precinct  the  court  would  set  aside  the  precinct  in  any  election 
that  turned  upon  the  action  of  that  precinct.  This  case  is  very  similar  to  the  ballot 
system.  We  all  know  the  ballot  system  is  capable  of  maladministration.  Out  of  the 
ballot  system  grows  the  stuffing  of  the  ballot-boxes  before  and  after  the  election;  out 
of  the  ballot  system  grow  all  the  frauds  which  take  place  in  fooling  a  voter  as  to 
marking  his  name;  but  that  does  not  make  the  ballot  system  invalid,  and  neither  does 
some  fraud  which  might  happen  in  this  system  or  in  the  ballot  system  or  in  any  sys- 
tem, invalidate  the  system  itself  unless  the  system  is  proven  to  be  such  that  it  cannot 
be  fairly  administered.  That  is  my  answer  to  the  question  of  the  gentleman  from 
Washington.    I  hope  it  is  satisfactory. 

Mr.  Thom:  The  distinction  which  has  always  appeared  as  conclusive  to  my  mind 
in  this  connection  is  this,  and  I  would  like  to  know  whether  it  meets  with  the  endorse- 
ment of  the  gentleman  now  addressing  us.  That  if  there  is  a  lav/  fair  and  constitu- 
tional upon  its  face  which  is  administered  improperly  and  that  adminstration  deprives 
a  citizen  of  the  United  States  of  the  constitutional  right,  then  the  judgment  of  the 
court  will  be  not  to  hold  the  lav/  unconstitutional,  but  to  rectify  the  unconstitutional 
administration  of  it. 

Mr.  Daniel:  Unquestionably;  that  is  just  what  I  have  been  contending  in  different 
language,  and  I  v/ould  refer  to  this  further  language  in  the  case,  that  in  the  Chinese 
case  it  was  shown  that  the  lav/  in  its  breadth  was  so  unequal  and  oppressive  as  to 
operate  differently  upon  one  class  from  its  operation  on  another  class,  and  amounted 
to  a  practical  denial  by  the  State  of  that  equal  protection  of  the  laws  which  is  secured 
by  the  Constitution. 

In  other  words,  the  court  held  in  the  Chinese  case  that  the  "  denial  of  the  equal 
protection  of  the  laws  was  a  denial  to  all  other  persons."  and  that  such  was  the  neces- 
sary operation  of  it  by  the  fact  disclose'd.  It  also  shows  that  such  a  constitutional 
provision  as  this  does  not  operate  as  a  denial  of  the  equal  protection .  of  the  laws  to 
any  class  of  persons,  but  especially  says  in  so  manj^  words  that  the  provision  of  this 
constitutional  provision  reaches  weak  and  vicious  white  men  as  well  as  weak  and 
vicious  black  men.  So  that  it  differentiated  the  two  cases  in  a  most  luminous  elucida- 
tion of  them,  and  showed  by  a  unanimous  judgment  thereupon  rendered  that  this  was 
a  constitutional  and  fair  enactment. 

Now,  Mr.  President,  if  such  an  opinion  could  be  rendered  upon  the  Mississippi 
case  that  went  before  that  tribunal,  all  the  more  would  it  be  rendered  upon  such  an 
article  of  suffrage  as  that  whch  lias  been  prepared  and  is  now  before  you,  for  in  the 
Mississippi  case  the  right  of  the  voter  was  tested  only  by  the  registration  officers. 
The  rejected  suffragan  had  no  right  of  appeal.  His  case  began  and  ended  at  the 
registration  before  the  final  officers  of  the  State  who  presided  over  the  registration. 

Mr.  Wise:  Senator  George  distinctly  stated  in  the  Senate  of  the  United  States 
that  this  Constitution  gave  the  right  of  appeal.  That  point  was  made  in  the  Senate, 
and  he  called  attention  to  that  clause  of  the  Constitution  in  Mississippi  in  which  the 
right  of  appeal  was  given. 


2950 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


Mr.  Daniel:  I  am  very  glad,  indeed,  to  be  corrected  by  my  friend,  if  he  is  not 
mistaken  in  his  information;  but  I  have  the  speech  of  Senator  George,  and  I  have 
looked  at  it  within  the  last  twenty-four  hours,  and  it  v/as  with  a  view  to  ascertaining 
that  very  fact.  I  also  heard  the  speech  of  Senator  George  when  it  was  delivered. 
Now,  I  do  not  pretend  to  have  read  it  all  over.  It  is  a  very  voluminous  speech — a  book 
turned  into  a  speech — but  I  looked  at  it  last  night  with  a  view  of  finding  that  statement 
but  I  could  not  find  it.  However,  I  do  not  contradict  the  statement  of  my  friend.  This 
article  which  we  are  now  considering  is  all  right.  There  is  no  question  as  to  its  giving 
the  right  of  appeal,  for  it  provides  that  any  person  who  shall  be  denied  registration 
shall  have  the  right  of  appeal  to  the  Circuit  Court  of  the  county  or  to  the  city  or  the 
Corporation  Court  of  the  city  or  to  the  judge  thereof  in  vacation,  and  I  understand  that 
in  the  ordinance  which  is  proposed  to  be  passed  by  this  Convention  that  there  are 
also  elaborate  provisions  securing  the  integrity  and  the  promptness  of  the  right  of 
this  appeal.  So  that  you  may  look  at  this  case  from  any  standpoint  according  to  these 
precedents  which  we  have  before  us  from  which  to  anticipate  any  difficulty  as  to  the 
constitutionality  of  this  provision.  With  these  reflections,  gentlemen  of  the  Conven- 
tion— 

Mr.  Wise:  I  dislike  very  much  to  interrupt  you  in  the  course  of  your  remarks, 
but  I'  have  the  Constitution  of  Mississippi  before  me.  The  clause  in  the  Constitution 
on  this  subject  is  as  follows: 

Remedies  by  appeal  or  otherwise  shall  be  provided  by  law  to  correct  evil  and 
improper  registration,  and  to  secure  the  electing  franchise  to  those  who  may  be  illegally 
and  improperly  denied  the  same. 

Mr.  Daniel:    I  think  perhaps  the  state  of  facts  is  this:    That  at  the  time  Senator 
George  made  his  speech  the  Legislature  had  not  perfected  that  system  of  appeal. 
Mr.  Wise:    You  are  right.    It  had  not  then  been  perfected. 

Mr.  Daniel.  So  this  case  then  differs  from  the  Mississippi  case  in  this,  that  the 
Constitution  which  is  here  gives  the  right  to  appeal  and  does  not  mean  it  to  rest  on 
any  provision  of  law.  It  operates  proprio  vigore,  and  gives  to  the  court  the  right  to 
take  cognizance  of  any  case  of  wrong  in  registration,  and  turns  the  rejected  voter  in 
a  precinct  immediately  into  the  presence  of  a  high  and  honorable  court  to  set  him 
right  if  he  has  been  wronged.  With  this  provision  ends  !he  temporary  scheme  of 
suffrage  provided  by  this  article.  The  capitation  tax  does  not  attach  to  this  temporary 
scheme.  It  simply  consists  of  the  right  to  vote  of  all  the  present  electors  who  are 
duly  registered,  who  have  been  soldiers  of  sons  of  soldiers,  who  have  paid  one  dollar 
tax,  or  who  can  understand  and  explain  a  section  of  the  Constitution.  These  provisions 
expire  on  January  1,  1904,  but  all  who  have  been  registered  under  thfem  become  perma- 
nent electors.  Now,  as  to  the  permanent  scheme  of  suffrage:  After  January  1,  1904, 
every  male  citizen  of  the  United  States  who  has  acquired  the  proper  residence  in  this 
State,  and  who- has  not  previously  registered,  shall,  as  a  condition  precedent  to  regis- 
tration, have  paid  the  poll-tax  assessed  or  assessable  against  him  for  the  next  preced- 
ing three  years,  and  in  addition  to  the  poll-tax,  an  educational  qualification  is  imposed, 
which  appears  in  two  different  aspects.  The  one  is  that  of  registration.  He  must, 
apply  for  registration  in  his  own  hand-writing  without  aid  or  suggestion  or  the  use  of 
memorandum,  in  the  presence  of  an  officer  of  registration  of  the  precinct  in  which  he 
resides.  That  application  in  his  own  handwriting  must  set  forth,  first,  the  names  of 
his  parents;  second,  their  residence;  third,  his  own  name;  fourth,  his  own  age;  fifth, 
the  place  of  his  birth;  sixth,  the  date  of  his  birth;  seventh,  his  occupation,  eighth, 
his  place  of  residence  at  the  time;  and,  ninth,  the  place  of  his  residence  for  two  years 
prior  to  the  date  of  his  application,  and  then  he  must  state  if  he  has  previously  voted, 
in  what  State,  county,  city,  or  voting  precinct  he  last  voted.  In  addition  to  these  ten 
items  of  information  which  must  be  given  by  the  applicant  to  the  registrar  he  shall 
answer  on  oath  any  and  all  questions  propounded  to  him  by  the  registration  officer 
affecting  his  qualification  as  an  elector,  which  said  questions  and  answers  shall  be 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  TIEGIXIA.  2951 

reduced  to  writing;  having  done  which  and  made  oath  to  his  statement,  he  shall  be 
duly  listed  by  the  registrar, 

Mr.  Thorn:    What  qualifications  are  referred  to  there? 

Mr.  Daniel:  The  qualifications  to  make  application  in  writing  and  to  state  these 
facts. 

Mr.  Thorn:    What  I  am  getting  at  is  whether  that  is  in  addition  to  the  capitation 
tax  and  to  the  application  for  registration  which  is  required  to  state  specific  things. 
Mr.  Daniel:    That  is  all, 

Mr.  Thom.    Then  there  is  an  obligation  to  answer  questions  on  oath  as  to  quali- 
fications as  an  elector, 
Mr,  Daniel:    Yes,  sir. 

Mr.  Thorn:  What  does  that  refer  to?  His  capacity  to  understand  the  duties  of 
citizenship  of  anything  of  that  sort,  or  merely  to  those  legal  qualifications — 

Mr.  Daniel:  Merely  to  those  legal  qualifications  required  by  law,  as  to  poll-tax, 
residence,  or  anything  of  that  sort,  of  course. 

Mr.  Parks:  I  would  like  to  say  that  when  the  amendment  was  offered  it  was 
stated  by  the  gentleman  who  offered  it  that  it  was  the  purpose  of  the  amendment  to 
trace  up  parties.  In  a  floating  population,  a  party  offering  himself  for  registration 
might  not  be  known,  and  it  might  be  that  he  is  not  qualified  for  voting  by  reason  of 
a  conviction  of  crime  somewhere  else;  and  this  was  for  the  purpose  of  tracing  up  a 
voter. 

]Mr.  Daniel:  I  would  say  that  it  refers  to  legal  qualifications  as  to  a  voter,  and  his 
right  to  be  registered. 

I  shall  speak  with  entire  candor  about  this  provision.  It  might  be  contended  that 
it  was  a  mandatory  provision  by  which  I  mean  a  provision  in  default  of  compliance 
with  every  term  of  which  the  party  might  be  properly  rejected  as  a  voter.  It  might 
also  be  contended  that  it  was  a  directory  provision  intended  as  a  formality,  and  that 
it  was  not  absolutely  essential  to  the  right  to  vote.  It  seems  to  me  that  if  it  is  not 
directory,  unless  the  voter  has  a  very  long  memory,  it  is  apt  to  produce  confusion  and 
differing  opinions  on  the  part  of  the  administrators  of  the  law.  I  did  not  vote  for  this 
proposition  for  these  reasons.  I  state  it  as  a  part  of  the  judgment  of  the  conference 
which  I  have  the  honor  in  this  particular  to  represent. 

In  addition  to  this  qualification  as  to  applications  for  registration  it  is  provided 
that  every  person  registered  under  this  provision,  not  blind  or  otherwise  physically 
disabled,  shall  prepare  and  deposit  his  ballot  without  aid  from  another,  on  such  printed 
form  as  may  be  prescribed  b^'  law  but  any  voter  registered  prior  to  January  1,  1904, 
may  be  aided  in  the  preparation  of  his  ballot  by  such  officer  of  election  as  he  may  him- 
self designate. 

It  is  also  provided  that  the  General  Assembly  shall  prior  to  January  1,  1904,  pro- 
vide by  law  for  such  a  registration  of  voters  as  is  not  set  forth  in  Section  3  of  this 
article,  to  be  held  at  least  once  in  every  j^ear,  and  shall  enact  such  other  laws  as  may 
be  necessary  to  carry  into  effect  all  the  provisions  of  this  section. 

It  will  be  perceived,  gentlemen,  by  this  statement,  that  education  in  a  double 
form  is  made  the  permanent  basis  of  suffrage,  associated  with  and  plus  an  accumu- 
lated capitation  tax.  I  am  one  of  those  who  believe  that  this  is  an  all-sufficient 
article  of  suffrage.  There  are  two  classes  of  critics  who  have  attacked  it.  One  class 
says  that  it  is  nothing — a  plaster,  a  bread  pill,  a  placebo.  Another  class  declares 
that  it  is  the  most  drastic  and  offensive  article  imaginable. 

I  am  disposed  to  believe  that  where  the  opponents  of  a  propositon  represent  such 
great  extremes  of  opinion,  the  true  line  is  apt  to  lie  exactly  where  the  conference  has 
placed  it,  in  the  middle  way  between  them. 

Mr.  Thom:  As  I  understand  the  statement  made  by  the  gentleman  from  Camp- 
bell (Mr.  Daniel),  it  is  this,  as  applied  to  the  voter  registered  after  1904:  That  that 
voter  has  a  prerequisite  to  the  right  to  vote  the  payment  of  this  cumulative  poll-tax, 


2953  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

with  the  requirement  to  make  out  an  application  for  registration  in  his  own  hand- 
writing and  without  assistance,  and  with  the  requirement  to  make  out  his  own 
ballot. 

Mr.  Daniel:    That  is  correct. 

Mr.  Thorn:  But  that  the  advocates  of  this  proposition  realize  that  the  proper 
interpretation  of  this  act  is  to  make  the  application  for  registration  directory  and 
not  mandatory,  and  that  the  liability  to  make  it  out  will  not  prevent  the  voter  from 
being  registered.    Am  I  right? 

Mr.  Daniel:  Those  are  all  of  the  requirements.  The  article  itself  answers  that 
question.  As  to  the  question  of  law,  which  the  gentlemen  propounds  to  me,  he  is  as 
capable  of  answering  it  as  I  am,  and  I  am  not  particularly  clear  in  my  own  mind 
about  it.    Otherwise,  I  would  give  him  a  perfectly  frank  and  unreserved  answer. 

Mr.  Wise:  It  is  in  connection  with  the  subject  you  are  now  considering  .  You 
are  debating  the  constitutionality  of  our  article  in  all  of  its  particulars,  and  it  is 
well  that  we  should  look  carefully.  You  have  just  called  attention  to  the  fact  that  all 
the  voters  upon  the  permanent  roll  can  be  aided  in  the  preparation  of  this  ballot, 
but  those  registered  after  January  1,  1904,  cannot  receive  aid  or  suggestion  from  any- 
body in  the  preparation  of  their  ballot.  Thus,  it  appears  that  we  will  have  two  rolls 
one  demoninated  the  permanent  roll,  and  the  other  made  after  January  1,  1904  Those 
who  are  upon  the  permanent  roll  can  receive  aid.  In  other  words,  they  are  not 
subjected  to  the  educational  test  required  in  the  preparation  of  their  ballot;  but  those 
who  are  registered  on  the  permanent  roll  can  receive  aid.  Now  my  question  is: 
Suppose  in  the  administration  of  this  law  it  so  happens  that  the  permanent  roll  shall 
contain  almost  exclusively  the  white  voters  of  this  Commonwealth,  and  that  the  roll 
which  is  made  after  January  1,  1894,  shall  contain  principally  the  colored  voters?  It 
would  thus  appear  that  the  whites  will  receive  aid  in  the  preparation  of  their  ballots 
and  that  the  blacks  will  not.  Suppose  that  question  were  to  come  before  the  Supreme 
Court  of  the  United  States,  and  it  should  be  developed  that  such  was  the  result  of 
this  administration  v/hat  would  be  the  decision  of  that  court  as  to  the  question  as 
to  whether  that  race  had  been  been  discriminated  against  on  account  of  the  race,  color, 
or  previous  condition  of  servitude? 

Mr.  Daniel:  Mr.  President,  it  is  impossible  in  an  address  intended  sim.ply  to 
set  forth  plainly  to  the  mind  what  is  provided,  to  follow  all  the  speculations  of  fancy 
as  to  Y/hat  might,  could,  would,  or  should  happen  thereafter.  I  have  no  doubt,  how- 
ever, that  my  learned  friend  from  Richmond  has  pondered  over  that  question, 
for  it  was  one  presented,  and  much  more  closely  presented,  by  the  permanent  under- 
standing clause  which  he  recoijimended  than  by  any  clause  which  we  now  recom- 
mend. There  are  conditions  which  it  is  possible  in  the  course  of  human  events  to 
arise,  which  might  perplex  and  dash  maturest  counsel,  but  it  is  utterly  useless  for 
us  to  attempt  at  this  time  to  follow  out  in  our  fancy  all  the  eccentric  courses  which 
events  map  possibly  take  if  this  matter  is  adopted.  Dealing  with  it  as  it  stands  now 
we  should  be  content  to  know  that  we  are  adopting  a  constitutional  provision  *  which 
has  the  imprimata  of  the  decision  of  the  Supreme  Court  of  the  United  States  behind 
it.  Furthermore,  if  I  may  answer  the  gentleman  in  a  general  w^ay,  I  would  say  that 
there  is  no  possible  test  of  suffrage,  whether  it  be  that  of  service  to  the  country,  of 
intellectual  superiority,  or  v/hat  not  of  personal  attribute  or  property  attachment 
which  would  not  admit  more  white  people  than  it  would  colored  people,  because  the 
one  is  a  long  enduring  and  civilized  race  of  history,  which  has  accumulated  to  itself 
the  virtues  of  refinement,  culture,  and  achievement,  and  advancement;  while  the  other 
is  yet  an  infant  in  the  theatre  of  action.  It  does  not  follow  that  any  man  can  give 
an  answer  to  the  question  which  the  honorable  gentleman  has  propounded  to  me  as 
to  what  would  be  the  decision  of  the  court.  In  the  cases  of  the  judges  who  were 
tried  in  Lynchburg,  not  a  single  negro  had  been  put  upon  a  jury,  and  yet  the 
negroes  themselves  held  upon  their  oaths  that  they  had  not  been  unfairly  and  par- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


2953 


tially  dealt  with,  and  in  one  of  the  cases  which  has  gone  before  the  Supreme  Court 
of  the  United  States  that  tribunal  adverted  to  the  fact  that  although  there  was  no^: 
a  single  man  of  the  colored  race  on  the  jury  it  did  not  follow  that  by  necessity  colored 
men  were  excluded  on  account  of  their  race.  And  so,  in  any  question  of  suSrage 
which  may  hereafter  come  before  any  tribunal  in  the  land,  any  question  as  to  its 
constitutionality  and  integriiy  and  of  the  propriety  of  the  particular  proceeding  in 
question,  cannot  be  considered  or  answered  until  all  the  circumstances  of  the  cases 
are  taken  inio  consideration,  and  a  mere  statement  that  so  many  men  of  the  white 
race  fell  on  one  side  and  so  many  of  the  colored  race  fell  upon  the  other  side  is  not 
in  itself  a  presentation  of  a  full  case,  capable  in  that  attitude  of  judicial  determina- 
nation. 

Xovn-,  :\Ir.  President,  I  go  into  another  branch  of  this  proposition.  It  relates  to 
those  who  are  excluded  fiom  suffrage.  It  is  of  the  usual  character  as  to  idiots,  insane 
persons,  and  convicts.  It  absolves  those  who  have  formerly  fought  duels  from  dis- 
franchisement under  the  new  Contitution.  In  other  words,  it  is  a  year  of  jubilee  as 
to  all  past  offenses  of  duelists.  It  otight  to  be.  And  so  it  v;as.  if  I  remember  aright, 
in  the  former  Constitution  of  this  State,  of  1850,  I  believe  that  this  is  right.  There 
have  been  few  duels  which  were  not  fought  by  men  of  honor  and  character.  They 
have  been  sufficiently  punished  in  the  past,  and  I  would  absolve  them  now  and  let 
them  participate  in  the  suffrage  without  asking  for  pardon  or  appealing  to  the  General 
Assembly. 

Then.  Mr.  President,  follow  detail  provisions  which  relate  to  the'  machinery  and 
to  the  fairness  of  the  election.  The  fifth  section  is  one  that  provides  that  no  officer, 
soldier,  seaman,  or  marine  of  the  United  States  army  or  navy  shall  be  deemed  to 
have  gained  a  residence  in  this  State  or  in  any  county  or  city  thereof,  by  reason  of 
being  stationed  therein;  and  so  on. 

And  then  come  the  provisions  as  to  elections: 

All  elections  by  the  people  shall  be  by  ballot,  and  all  elections  by  representative 
bodies  shall  be  viva-voce. 

Then  as  to  the  fairness  of  elections: 

First.  The  ballot-box  shall,  during  all  elections,  be  kept  in  public  view,  nor  shall 
the  same  be  opened  or  the  ballot  be  canvassed  or  counted  in  secret. 

That  is  a  wholesale  provision. 

Then  again,  the  General  Assembly  shall  provide  by  law  for  ballot  without  any  dis- 
tinguishing mark  or  symbol  for  use  in  all  State,  county,  city  and  other  elections  by  the 
people. 

And  then  there  is  a  just  provision  to  prevent  ballots  being  made  inscrutable  by 
the  voter. 

All  ballots  shall  contain  the  names  of  the  candidates  and  of  the  officers  to  be  voted 
for.  in  clear  print  and  in  due  and  orderly  succession;  but  any  voter  may  erase  any  name 
and  insert  another.  The  General  Assembly  shall  provide  by  law  for  the  ballots  to  be 
used  in  all  elections,  and  the  form  thereof  shall  be  the  same  in  all  places  where  the 
election  is  held. 

Then  it  goes  on  and  says  that  no  voter  shall  be  compelled  to  perform  militry  duty 
except  in  time  of  war.  or  public  danger,  at  the  time  of  holding  an  election. 

Then,  that  any  person  who.  in  respect  of  age  or  time  or  residence  vrould  be  qualified 
to  vote  at  the  time  of  the  next  election,  shall  be  admitted  to  registration,  etc. 

Then  there  is  inserted  a  provision  of  local  self-government.    It  provides  that 
electors  in  county,  town  and  city  elections  shall  possess  the  qualifications  and  be 
subject  to  the  disqualifications  heretofore  prescribed  by  this  article. 
186 — Const.  Deb. 


^yo4:  DEBATES  OF  TELE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

The  article  provides  further  that  the  General  Assembly  may  prescribe  a  property 
qualification  of  not  exceeding  two  hundred  and  fifty  dollars  in  any  county,  town  or 
city  of  the  State,  as  a  prerequisite  for  voting  in  any  election  for  officers  to  be  wholly 
elected  by  the  electors  of  such  county,  city  or  town,  other  than  members  of  the  General 
Assembly,  such  action,  if  taken,  to  be  had  upon  the  initiative  of  the  representatives 
in  the  General  Assembly  from  the  city,  town  or  county  immediately  affected;  provided, 
that  the  General  Assembly  in  its  discretion  may  make  such  lawful  exemptions  from  the 
operations  of  such  property  qualification  as  shall  not  be  in  conflict  with  the  Constitution 
of  the  United  States  or  the  State  of  Virginia. 

It  is  believed  confidently,  indeed  no  doubt  is  entertained  by  the  advocates  of 
this  proposition  that  it  is  entirely  constitutional.  Some  such  system  as  this  has 
already  existed  in  the  old  Commonwealth  of  Virginia  without  any  question  as  to  its 
constitutionality.  Towns  and  cities  have  had  differentiated  systems  of  suffrage,  and 
that  there  may  be  such  differentiated  systems  of  suffrage  is  settled  by  a  decision  of 
the  Supreme  Court  of  the  United  States  to  which  my  attention  was  called  by  the 
gentleman  from  Northampton,  (Mr:  Kendall).  It  is  not  conceived  that  the  insertion  of 
this  proposition  in  the  article  on  suffrage  can  lead  to  any  great  confusion  or  trouble. 
It  could  not  be  begun  in  any  county  or  city  unless  that  county  or  city  send  to  the 
General  Assembly  representatives  to  stand  sponsor  for  it  and  to  advocate  it.  There  is 
not  the  remotest  possible  danger  in  any  of  those  districts,  counties  or  locations  of  the 
State  which  do  not  want  any  such  qualification  that  it  would  ever  be  imposed  upon 
them.  After  the  county  itself  or  the  city  itself  has  appealed  to  the  General  Assembly 
in  the  person  of  its  representative,  who  alone  can  take  the  initiative  to  establish  this 
system,  the  General  Assembly  itself  must  see  and  declare  that  it  is  wise  and  just, 
and  in  pursuance  of  that  condition  adopt  it.  There  are  some  counties  in  this  State 
in  which  it  is  possible  that  such  a  system  as  this  may  be  needed.  It  is  so  safe-guarded 
that  I  cannot  see  that  there  is  any  reasonable  or  sound  objection  to  it. 

The  next  proposition  that  ths  article  deals  with  is  the  subject  of  electoral  boards. 
The  formation  of  these  boards  is  taken  away  from  the  General  Assembly  and  away 
from  the  focus  of  political  agitation.  The  right  to  appoint  these  boards  is  given  to  the 
Circuit  Courts  or  to  the  judges  thereof  in  vacation,  and  to  the  Corporation  or  Hustings 
Court  of  cities.  These  boards  are  to  consist  of  three  members,  and  are  to  have  the 
right  to  appoint  the  judges,  clerks  and  registrars  of  election.  More  than  this,  the 
judges,  clerks,  and  registrars  of  election,  the  officers  who  deal  with  the  people  and 
who  pass  upon  their  qualifications,  are  to  be  composed  of  different  political  parties, 
and  in  the  selection  of  the  judges  of  election  as  far  as  possible  they  shall  be  given  toi 
each  of  the  two  political  parties  which  at  the  general  election  next  preceding  their 
appointment  cast  the  highest  and  next  highest  number  of  votes.  No  person  nor 
the  deputy  of  any  person  holding  any  elective  ofiice  of  profit  or  trust  in  this  State, 
or  in  any  county,  city  or  town  thereof;  shall  be  appointed  as  a  member  of  the  electoral 
board  or  as  registrar  or  as  judge  of  election. 

There  is  also  a  provision  as  to  the  appointment  of  officers  by  the  Convention, 
to  act  prior  to  1904.  There  is  also  an  additonal  assurance  of  the  right  of  appeal.  In 
Section  12  it  is  provided  that — 

The  General  Assembly  shall  provide  by  law  for  an  appeal  by  any  person  denied 
the  right  of  registration,  and  shall  also  provide  for  the  correction  of  illegal  and  fraudu- 
lent registration. 

That  is  as  a  permanent  scheme  of  suffrage,  to  take  place  after  1904,  the  right  of 
appeal  as  to  proceeding  voters  being  already  secured  by  another  provision. 

Then  com.es  eligibility  to  office,  and  it  is  provided  that  every  person  who  has 
the  right  to  vote  should  be  eligible  to  office,  and  no  distinction  is  made  as  to  race, 
color,  or  previous  condition  of  servitude.  ^ 

Then  there  is  a  provision  which  provides  that  men  and  women  of  eighteen  years 
of  age  and  over  shall  be  eligible  to  hold  the  office  of  notary  public. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2955 


We  believe  this  to  be  a  ^'ise  and  just  provision.  The  women  of  the  Common- 
T\-ealth  during  the  last  thirty  or  forty  years  have  been  compelled  by  the  exigencies  of 
our  situation  to  look  out  for  themselves.  They  have  most  nobly  responded  to  that 
exigency,  and  I  am  glad  to  be  the-  member  of  a  Convention  which  shows  that  the  men 
of  Virginia  honor  and  appreciate  the  characteristics  which  have  been  disclosed  in 
Virginia  vromen  and  are  prepared  to  help  them  help  themselves  in  all  worthy  and 
proper  ways.  (Applause.) 

Then  comes  a  provision  that  the  General  Assembly  shall  provide  by  law  for  the 
fair  and  orderly  conduct  of  all  elections  by  the  people  in  accordance  with  the  provisions 
of  this  Constitution. 

Then  comes  a  provision  which  I  did  not  favor,  but  which  the  conference  did,  that — 

No  person  shall  vote  at  any  legalized  primary  election  for  the  nomination  of  any 
candidate  for  public  ofnce  unless  he  is  at  the  time  a  registered  voter  and  qualified  to 
vote  at  the  next  succeeding  election. 

Then  comes  the  sixteenth  section,  that — 

The  General  Assembly  shall  enact  such  laws  as  are  necessary  and  proper  for  the 
purpose  of  securing  the  regularity  and  purity  of  general  and  primary  elections,  and 
preventing  and  punishing  any  corrupt  practices  in  connection  therewith;  and  shall 
have  power,  in  addition  to  other  penalities  and  punishment  now  or  hereafter  prescribed 
by  law  for  such  offences,  to  provide  that  persons  convicted  of  them  shall  lose  the  right 
to  vote  and  hold  office. 

Then  this  article  closes  with  the  seventeeth  section,  which  provides  elaborately 
for  the  printing  by  the  proper  officers  of  the  names  of  those  who  have  paid  their 
capitation  taxes,  and  for  the  posting  of  the  same  in  public  places;  of  its  certfication  to 
the  officers  of  election,  and  also  that  proper  evidence  of  the  prepayment  of  the  capita- 
tion tax  required  by  this  Constitution  as  a  prerequisite  to  the  right  to  register  and  vote 
shall  be  such  as  may  be  prescribed  by  law. 

I  have  thus  occupied,  gentlemen,  a  considerable  portion  of  your  time,  in  order 
to  put  clearly  before  you  in,  your  conventional  character  the  whole  scheme  of  suffrage 
which  the  Democratic  members  of  your  body  hy  a  decided  majority  have  recommended. 
It  is  in  our  opinion  a  schedule  of  suffrage  v\^hich,  while  it  may  contain  something  here, 
something  there,  that  each  one  of  us  opposes  or  did  oppose,  is  the  best  solvent  that 
we  can  devise  for  the  critical  and  burning  issue  which  we  have  come  here  to  meet. 

That  it  was  not  devised  to  secure  white  supremacy  has  been  conceded  by  the 
most  determined  and  enthusiastic  advocates  of  white  supremacy.  In  the  confidence 
of  our  race  we  have  not  questioned  that  the  white  man  would  rule  in  Virginia  what- 
ever were  the  conditions  of  suffrage  and  hov^ever  few  might  be  his  number  as  coin- 
pared  to  those  of  any  other  race.  We  have  155,000  white  electors  registered  in  Vir- 
ginia, and  that  fact  would  disabuse  the  mind  of  any  such  apprehension  if  any  one 
at  any  time  entertained  it. 

Under  an  educational  qualification  comparing  the  illiterate  of  both  races  that 
majority  would  be  increased  to  195,000.  So  that  even  those  of  us  who  are  the  warmest 
advocates  of  this  suffrage  plan  do  not  propose  or  advocate  it  from  any  apprehension 
in  our  minds  that  any  but  the  white  man  will  ever  rule  this  Commonwealth.  But 
those  of  us  who  advocate  it  want  him  to  rule  in  its  supremacy  of  decency  and  with 
the  association  of  that  law  and  order  which  will  command  the  respect  not  only  of 
himself  but  of  the  whole  civilized  world;  and  if  we  are  doing  a  thing  which  must  in 
its  nature  be  ungracious  to  many  of  our  white  citizens  who  reside  in  sections  which 
do  not  feel  the  pressing  nature  of  this  problem  as  to  those  who  lie  in  the  darker 
regions  of  the  Commonwealth,  we  may  content  ourselves  at  least  with  the  reflection 
that  we  have  not  gone  half  as  far,  nay,  not  a  third  as  far  as  the  Republican  party  of 
this  country  has  itself  gone  under  circumstances  not  half  as  afflicting  as  our  own. 
You  have  only  to  look  across  the  Potomac  to  the  Capital  City  of  this  nation,  where 


I 


.2956  DEBATES  OF  THE  CONSTITUTIOXAL  CONVEXTIOX  OF  YIKGIXIA. 

the  Republican  party  with  the  exception  of  eight  years  has  dominated  the  policies 
and  drawn  the  statutes  of  the  country  ever  since  the  Civil  war.  You  have  only  to 
go  to  the  Capital  of  this  country  to  ascertain  how  they  have  dealt  with  such  a  ques- 
tion when  it  came  home  to  them.  In  the  boyhood  days  of  many  of  us  the  city  of 
Washington  was  a  great  municipal  government.  It  had  its  Mayor,  it  had  its  Coun- 
cil, it  had  all  of  its  officers  as  the  city  city  of  Richmond,  of  Baltimore,  of  Norfolk 
has  to-day.  It  chose  them  in  such  manner  as  it  had  the  right  to  do,  by  the  vote 
of  the  people.  Colored  suffrage  came,  and  presto,  change,  the  Republican  party 
found  the  city  of  Washington  in  such  condition  that  it  was  compelled  in  decent  respect 
for  the  opinion  of  other  nations,  and  in  decent  protection  of  the  property  and  lives 
and  characters  of  her  people  who  lived  there  to  make  a  deep  and  fundamental  change, 
and  instead  of  prescribing  a  property  qualification,  or  a  service  qualification,  or  a 
capitation  qualification,  it  cut  the  Gordian  knot  by  taking  away  all  right  of  suffrage 
from  white  men  and  colored  men  alike.  No  oligarchy  of  citizens  rule  in  Washington 
to-day;  no  aristocracy  of  citizenship  rules  in  Washington.  No  citizen  of  any  kind  of 
Washington  rules  at  all  to-day;  and  the  capital  of  this  nation  is  the  most  complete 
exemplification  of  absolute  government  that  anywhere  exists  upon  the  face  of  this 
earth.  It  only  shows,  gentlemen,  the  plain,  naked  truth,  that  whenever  the  Anglo- 
Saxon  is  brought  to  confront  the  real  thing,  and  must  submit  either  to  social  degrada- 
tion or  the  loss  of  liberty,  they  will  accept  tyranny  rather  than  they  will  accept  social 
degradation.    (Great  applause.) 

And  here,  in  this  State  of  Virginia,  dedicated  as  it  was  to  manhood  suffrage  fifty 
years  ago,  with  many  sections  of  it  still  permeated  by  the  feeling  tTiat  the  debate  at 
that  time  engendered,  it  seems  to  me  that  it  is  far  more  manly  to  go  forward  and 
preserve  all  the  liberty  that  we  can  in  old  Virginia  to  white  men  and  to  black  men, 
rather  than  surrender  to  the  inevitable  consequences  of  a  putrid  electorate  and  an 
offensive  administration  of  our  laws.  (Applause.) 

No  body  that  ever  assembled  in  the  State  of  Virginia  was  animated  by  nobler  or 
higher  or  worthier  motives  than  that  which  is  now  assembled  in  this  hall.  No  alloy 
of  personal  ambition  entered  into  the  heart  and  mind  and  aspirations  of  the  people 
of  Virginia  who  advocated  this  Convention.  No  taint  of  the  greed  of  political  aggrand- 
izement entered  into  the  plans  of  the  great  body  which  took  it  up  and  has  brought 
it  so  far  toward  its  fruition.  It  was  as  devoid  of  all  selfishness  as  any  movement  of 
the  human  race  that  ever  took  place.  It  had  patriotism  in  it,  for  it  required  sacrifices 
and  risk,  and  endangered  alike  personal  ambitions  and  party  supremacy,  to  attempt  it; 
but  we  belong  to  a  race  and  a  people  which  never  loses  "  the  good  they  may  win  by 
fearing  to  attempt."  I  am  glad  that  we  have  attempted,  and  I  am  glad  to  see  the 
good  omens  of  our  success.  We  were  inspired  in  coming  to  this  Convention  by 
thoughts  as  noble  as  those  that  animated  the  breast  of  the  great  commander  of  the 
army  of  Northern  Virginia.  Robert  E.  Lee  (Applause),  when  on  one  occasion  Stone- 
wall Jackson  sent  to  him  for  reinforcements.  He  looked  upon  his  thin  line  and  for 
a  moment  reflected:  and  then  he  further  thinned  them  and  sent  reinforcements  to 
Jackson,  saying,  "  We  must  go  to  the  help  of  a  gallant  man  if  we  perish."  (Applause.) 

The  white  people  of  our  State  have  been  animated  by  such  high  and  noble  motives 
as  this,  and  there  are  no  more  gallant,  no  truer  and  no  worthier  people  to  go  to  the 
relief  of  than  those  who  have  fought  the  battle  of  Virginia  in  the  black  region  of  this 
Commonwealth  for  the  last  thirty  years.  (Applause.) 

A  Roman  commander  once  said  to  his  soldiers,  "If  the  arrows  of  the  enemy 
darken  the  sky,  fight  on  in  the  shade."  They  have  been  for  lo,  these  many  days,  in 
the  shadow,  to  a  certain  extent,  of  the  great  civilization  which  is  around  them;  but 
they  have  illumined  that  shade  by  the  stirring  virtues,  and  by  the  most  resolute  and 
indomitable  effort  that  ever  characterized  the  great  race  to  which  they  belong  in  any 
clime,  in  any  age  or  in  any  country. 

And  confident  that  history  loves  the  truth  and  will  in  time  reveal  it  for  the 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


29or 


consideration  and  admiration  of  mankind,  I  have  not  a  doubt  in  my  own  mind  that 
the  day  v^ill  come  when  the  Northern  people  themselves  will  clap  their  hands  in 
praise  and  will  thank  God  that  their  Southern  brethren  were  men  of  the  type  that 
they  were  to  preserve  the  purity  and  honor  and  integrity  and  character  of  the  neigh- 
bors with  whom  they  will  in  future  times  be  indentified.  (Applause.) 

I  have  just  one  word  more  to  say.  I  remember  in  my  boyhood  days  to  have  looked 
at  an  illustrated  history  of  Xapoleon  Bonaparte.  There  was  a  picture  in  it  which 
deeply  impressed  my  childish  mind,  and  which  time  has  not  effaced  from  it.  It  vvas  a 
picture  of  the  great  emperor  after  his  fall  on  the  Isle  of  St.  Helena.  He  was  wiih 
an  elegantly-dressed  lady,  and  was  slowly  descending  the  cliff  that  led  to  the  seashore. 
As  they  passed  down  upon  the  narrow  path  this  fine  lady  and  himself  met  a  poor 
blackamoor,  who,  with  his  body  bent  was  struggling  tmder  a  heavy  burden.  The 
fine  lady  maintained  the  center  of  the  path,  and  did  not  give  way  for  him;  but  the 
great  emperor  stood  aside  and  lifted  his  hat  and  said,  "  Respect  the  burden,  madame.'' 
Gentlemen,  we  must  respect  the  burdens  of  the  people  of  Virginia.  We  must  respect 
it  in  the  black  race,  and  we  must  respect  it  in  the  white  race.  We  are  not  here  as 
enemies  of  the  colored  man.  On  the  contrary  the  good  people  of  Virginia  look  upon 
him  with  deep  interest,  and  with  pity  and  compassion  and  friendship  for  the  condition 
in  which  he  is.  We  must  not  forget  that  he  has  been  the  plaything  of  the  politicians 
of  this  coimtry.  We  must  not  forget  that  considering  his  untutored  condition  he  has 
borne  himself  vrell  during  the  civil  war,  and  as  well  as  the  mean  white  men  would 
permit  him  since  the  war.  (Applause). 

The  evils  that  have  come  out  of  him  in  these  latsr  days  were  not  evils  generate'd 
in  him,  but  it  came  first  from  his  projection  into  a  theatre  of  action  in  which  he  was 
not  prepared  to  officiate,  and  it  came  from  the  inspiration  of  vicious  and  designing 
men  who  desired  him  for  their  purposes.  AVe  must  respect  his  situation  and  we  must 
stimulate  it  and  fortify  it  by  those  previsions  of  law  which  will  not  permit  him  to 
control  when  they  know  he  has  not  the  maturity  of  judgment,  and  character  and  learn- 
ing and  experience  to  control  and  rule.  There  is  no  greater  enemy  of  the  colored 
man  upon  this  earth  than  the  white  man  who  goes  to  him  and  misleads  him  to  opposi- 
tion of  the  white  race  in  their  triumphal  march  of  progress  (Applause). 

Then,  gentlemen,  we  must  have  respect  for  each  other's  burden.  The  mocking 
cries  that  reach  my  ears  from  political  opponents  and  from  some  of  my  ov:ji  party, 
neither  disconcert  nor  discourage  me  in  this  great  effort.  I  do  not  forget  that  there 
were  even  those  who  mocked  at  Christ  as  he  carried  the  heavy  cross  upon  Calvary 
where  he  died  for  the  sins  of  m^ankind,  and  the  burden  which  you  are  to  bear  in  this 
campaign,  and  in  gettmg  this  better  Constitution  for  the  people  of  Virginia  is  a 
burden  which  you  should  be  encouraged  to  bear  by  the  memory  of  the  Master  and 
those  who  taunted  and  perplexed  him  in  His    noble  Work.  (Applause). 

Respect  the  burden,  gentlemen.  e"er  you  utter  idle  and  taunting  speech;  respect 
the  burden  before  you  point  the  finger  of  shame  at  him  who  fights  for  an  understand- 
ing clause  or  for  anything  else  which  helps  to  take  away  from  tis  the  body  of  his 
death.    (Great  applause). 

Mr.  Glass:  :\Ir.  President,  if  no  other  member  of  the  Convention  desires  to 
address  this  body,  in  a  general  wa^'.  I  move  that  we  proceed  to  the  further  considera- 
tion of  this  article,  section  by  section. 

The  motion  was  agreed  to. 

Section  1  was  then  read. 

Mr.  Flood:  I  move  to  amend  by  -striking  out  in  line  10,  the  words,  ''three  years."' 
and  inserting  in  lieu  thereof  the  word  "year;"  in  line  21,  on  page  2.  to  strike  out  the 
words  "years""  and  insert  the  word  "year;"  in  the  same  line  to  strike  out  the  words 
"  not  exceeding  three. "" 

Mr.  President,  I  do  not  care  to  detain  the  Convention  but  a  moment.  I  want  to 
say  that  I  do  not  want  to  have  any  members  of  the  Convention  under  any  misappre- 


2958 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


hension  as  to  what  this  amendment  is.  It  simply  provides  that  there  shall  be  no 
accumulated  poll-tax  beyond  one  year,  and  that  if  a  registered  voter  pays  his  poll-tax 
six  months  prior  to  the  election  in  any  year  in  v\'hich  he  offers  to  vote,  he  can  vote, 
whether  the  poll-tax  for  the  preceding  two  years  has  been  paid  or  not. 

Mr.  Glass:  Mr.  President,  I  do  not  care  to  say  anything  about  the  matter  further 
than  that  vre  have  several  times  considered  this  proposition.  I  hope  the  section  will 
be  allowed  to  remain  as  it  is. 

The  question  having  been  taken  the  result  v/as  announced — ayes  16,  noes  57. 

The  amendment  v,^as  rejected. 

Mr.  Pedigo:  Mr.  President,  I  move  to  amend  by  striking  out  in  line  3,  the  word 
"tY\'o"  and  inserting  the  word  "one;"  and  by  striking  off  the  "s"  at  the  end  of  the 
vv'ord  "years,"  so  that  it  will  read  year,  so  that  the  section  as  amended  will  then  read: 
"  Every  male  citizen  of  the  United  States,  who  shall  have  attained  the  age  of  twenty- 
one  years,  and  who  shall  have  been  a  resident  of  this  State  for  at  least  one  year." 

I  also  move  to  amend  in  line  4  by  striking  out  the  words  "  one  year,"  and  insert- 
ing in  lieu  thereof  the  words  "  six  months." 

The  object  of  this  change  in  the  present  Constitution  is  no  doubt  to  carry  out 
that  article  in  our  bill  of  rights  which  provides  that  every  citizen  must  show  a  per- 
manent interest  in  and  attachment  to  the  government  before  he  is  enrolled  as  a 
voter.  It  it  unquestionably  to  the  interest  of  the  State  of  A^irginia  and  to  all  its  people 
to  increase  the  number  of  white  people  in  Virginia,  as  compared  with  the  negro  race. 
There  is  not  one  man  in  this  Convention  who  will  deny  that.  All  of  the  emigrants 
that  are  likely  to  come  to  the  State  and  make  their  home  here  will  be  white  people 
and  not  negroes.  They  will  consist  of  citizens  of  other  States.  It  has  always  been 
the  policy  of  the  great  States  of  the  West  to  encourage  this  immigration;  and  I  think 
we  could  not  do  better  than  to  receive  them  as  fellow  citizens,  and  accept  them  as 
the  equals,  in  right,  of  all  the  citizens  of  the  State.  We  ought  to  be  glad  to  accept 
those  citizens  who  come  from  Ohio,  Illinois,  Maryland,  and  Pennsylvania,  into  this 
State  to  make  their  homes  here.  It  seems  to  me  we  ought  to  extend  to  them  a  liberal 
hand  of  introduction,  and  make  them  citizens  as  soon  as  they  make  their  home  here. 
I  think  one  year  vrould  be  ample  and  sufficient,  and  that  is  a  provision  of  the  present 
Constitution.  I  think  we  ought  not  to  go  back  on  that  class  of  emigrants  that  may 
come  into  this  State  from  other  States.  These  are  the  grounds  upon  which  I  ask  to 
have  this  change  made. 

The  amendment  was  rejected. 

Section  1  was  adopted. 

The  secretary  read  Section  2. 

Mr.  Thom:  I  move  to  amend  the  Section  2,  just  read,  by  striking  out  beginning  in 
line  20,  on  page  3,  with  the  words  "and  give  a  reasonable  explanation  of  the  same;" 
and  from  there  down  to  the  period  in  line  23.  In  other  words  I  move  to  strike  out  the 
temporary  understanding  clause. 

I  think,  Mr.  President,  that  I  may,  with  some  confidence,  appeal  to  the  sense  of 
justice  of  this  Convention  to  support  me  in  the  statement  that,  while  I  have  been 
opposed  to  many  things  which  have  been  proposed  as  a  part  of  this  Constitution,  I  have 
contented  myself  with  addressing  the  reason  of  the  members  of  this  Convention;  and 
have  never  resorted  to  factious  and  factional  opposition.  It  is  my  purpose  to  deal 
with  this  article  in  the  Constitution  in  the  same  spirit.  I  feel  that  it  is  due  to  my 
life-long  convictions  on  this  subject  that  I  should  place  upon  the  permanent  record  of 
this  Convention  the  reasons  which  in  this  matter  control  my  action. 

I  had  the  honor,  in  the  early  days  of  last  October,  to  present  to  the  Democratic 
conference  on  the  suffrage  question  the  majority  report  of  the  Suffrage  Committee. 
In  doing  so  I  gave  at  length  the  reason  which  appealed  to  my  own  mind,  and  to  the 
minds  of  my  associates,  in  that  majority,  in  favor  of  what  is  known  as  the  permanent 
understanding  clause.    I  shall  not  attempt  to  reiterate  here  in  detail  the  reasons  which 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2959 


I  then  gave;  but.  inasmucli  as  that  permanent  plan  found  no  favor  with  the  conference 
and,  as  any  remarks  which  I  then  made  can  do  no  harm  now  if  inserted  in  the  record 
of  this  Convention,  I  ask  that  the  stenographic  report  which  I  now  hand  to  the  steno- 
grapher may  be  inserted  here  as  a  part  of  the  remarks  I  am  now  making  and  as  a 
statement  of  the  reasons  which  actuated  me  then  and  from  whicli  I  have  seen  no 
reason,  at  any  time,  to  depart. 

Mr.  Chairman  and  Gentlemen  of  the  Conference: 

Speaking  for  myself,  personalh^  Mr.  Chairman,  and,  I  am  sure,  too,  for  every  mem- 
ber of  the  majority  of  this  committee,  I  desire  to  express  my  profound  regret  that  the 
committee  has  not  been  able  to  submit  to  the  Convention  a  unanimous  report.  This 
regret  is  intensified  by  the  fact  that  the  majority  is  deprived  of  the  leadership  of  a 
gentleman  whose  uniform  courtesj^  and  consideration,  during  the  progress  of  our 
deliberations  have  endeared  him  to  every  member  of  that  committee,  and  for  whose 
great  ability  and  distinguished  public  service  we  all  entertain  the  highest  admiration. 
But  we  have  considered,  Mr.  Chairman,  that  the  issue  that  has  been  submitted  to  us  is 
too  great  for  any  personal  consideration.  It  is  a  matter  on  which  each  man  on  that 
committee  has  to  speak  out  and  stand  for  his  honest  convictions.  It  is  a  matter  so 
far-reaching  upon  the  destinies  of  the  people  of  this  State  that  no  one  has  a  right  to 
"jtter  a  sentiment  about  it  that  he  would  not  be  willing  to  stand  in  the  presence  of  his 
Maker  and  be  responsible  for.  It  is  in  this  spirit  of  conviction  that  the  various  reports 
which  are  now  before  this  conference  have  been  agreed  upon  and  submitted.  They  are 
not  the  product  of  acrimonious  debate.  The^-  are  not  the  product  of  personal  differences. 
A.S  honest  and  purposeful  an  effort  was  made  by  every  member  of  that  committee  to 
reach  a  united  conclusion,  without  reference  to  an3'  mere  personal  opinion,  with  a  per- 
fect willingness  to  sacrifice  an^^  preconceptions,  as  it  was  possible  for  twenty  patriotic 
men  to  make.  It  must  be  borne  in  mind,  Mr.  Chairman,  that  the  question  which  the 
Suffrage  Committee  has  been  dealing  with  is  the  greatest  problem  in  all  the  historj^  of 
mankind.  It  is  the  last  sad  trace  of  the  greatest  revolution  in  modern  history.  It  is. 
the  one  thing  that  has  come  upon  this  people  as  the  product  and  result  of  war  from 
which  the  wisest  men  have  not  yet  conceived  any  absolutely"  perfect  method  of  escape. 
It  is  the  last  act  in  the  tragedy  which  put  two  unequal  races  together  in  the  same  land 
and  gave  birth  to  all  the  problems  growing  out  of  that  unequal  association. 

Without  appreciating  the  immensity-  of  the  problem  which  must  grow  out  of  such 
conditions,  there  has  been  exhibited  in  some  quarters  a  spirit  of  flippant  criticism  of 
the  time  which  has  been  consumed  in  considera.tion  of  this  problem.  Mr.  Chairman, 
no  time  has  been  wasted  in  its  consideration.  If  we  can  present  to  you  a  plan  that 
will  strike  the  shackles  from  the  hands  of  the  Virginia  people  the  four  months  vvhich 
have  been  given  to  its  consideration  will  be  the  most  blessed  expenditure  of  time  and 
effort  in  the  history  of  this  State. 

We  are  met  at  the  threshold  with  this  supreme  difficulty  that  we  are  making  an 
effort  to  find,  within  the  limits  of  the  law,  a  method  of  escaping  from  a  constitutional 
policy  exactly  contrary  to  the  purposes  and  to  the  hopes  of  the  Virginia  people.  If 
a  method  has  to  be  adopted,  which  is  not  ideal  in  its  character,  some  reference  must  be 
had  In  the  mind  of  the  critic  to  the  conditions  under  which  that  result  had  to  be 
reached.  Not  only  would  this  problem  be  difficult  in  itself  even  if  applied  to  a  popula- 
tion entirely  homogeneous  in  its  character,  but  it  becomes  doubly  difficult  when  we 
consider  that  we  are  living  in  a  State  where  there  is  an  immense  diversity  of  popula- 
tion and  an  immense  diversity^  of  conditions. 

When  you  remember  that  we  are  living  in  a  State  where  there  are  thirtj^-five  coun- 
ties with  a  black  majority^  and  sixty-five  counties  with  a  white  majority/;  that  we  are 
living  in  a  State  where  the  negro  population  is  practically  condensed  east  of  the  Blue 
Ridge  mountains  and  where  there  are  altogether  different  conditions  of  affairs  existing 
west  of  the  Blue  Ridge  mountains;  that  on  the  border  towards  our  sister  State  of  Mary- 
land an  entirely  different  condition  of  affairs  exists  from  that  which  exists  in  our  border 
counties  next  to  our  sister  State  of  North  Carolina;  and.  when  you  realize  that  the 
problem  is  to  fimd  a  law  universal  in  its  character  and  in  its  application,  that  will  suit 
and  cover  and  give  contentment  to  all  these  various  conditions,  you  gentlemen  of  the 
conference,  will  perceive  the  immensity  of  the  problem  which  has  been  before  us. 
When,  in  committee  we  found  a  suggestion  coming  from  one  section  of  the  State  that 
vs-ould  solve  its  problems,  and  presented  it  to  the  representatives  of  other  sections  of 
the  State,  we  found  in  many  instances  that  it  was  destructive  of  their  interests.  When 
we  found  from  one  part  of  this  Commonwealth  a  suggestion  that  would  entirely  purify 
the  suffrage  there,  we  found  that  its  operation  in  another  section  of  this  Common- 
wealth would  be  exactly  the  reverse.  And  so  it  is.  Mr.  Chairman,  that  the  Herculean 
task  which  has  been  confided  to  us  should  rightfully  relieA'e  us  from  everything  like 


2960 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


criticism  in  reference  to  the  time  that  we  have  consumed  in  maturing  the  plans  which 
we  have  proposed. 

Leaving  for  an  instant  the  question  of  diversity  of  condition  in  the  State,  let  us 
glance  for  a  moment  at  the  condition  of  our  suffrage  which  it  was  our  problem  to  solve 
and  to  relieve.  Many  gentlemen  have  thought  that  the  question  before  Virginia  to-day 
was  the  question  of  white  supremacy.  From  that  proposition  I  most  respectfully  and 
earnestly  dissent.  There  is  no  question,  Mr_  Chairman  and  gentlemen  of  the  con- 
ference, of  white  supremacy  in  any  part  of  tiie  State  of  Virginia.  That  problem  has 
been  solved  by  the  brave  purpose  and  by  the  splendid  genius  of  our  people.  There  is 
no  inferior  race  under  heaven  that  can  rule  or  remain  supreme  over  Virginia  for  a 
period  of  thirty  years.  There  is  no  danger  in  Virginia  of  what  I  may  be  permitted  to 
call  the  physical  domination  of  the  negro  race  in  any  part  of  this  State;  but  the  strug- 
gle which  has  been  necessary  in  order  for  us  to  relieve  ourselves  of  that  curse  has  left 
us  in  a  condition  which  calls  for  relief.  While  the  negro  is  no  longer  a  dominant 
factor  in  the  politics  of  this  State,  so  far  as  the  holding  office  is  concerned,  his  influence 
is  still  a  dominant  factor  here  just  as  the  poison  of  the  Upas  tree  is  a  dominant  factor 
everywhere  its  influence  may  reach.  The  methods  to  which  it  has  been  necessary  to 
resort  in  order  to  eliminate  him  as  a  dominant  factor  have  left  their  traces  deep  upon 
the  moral  and  intellectual  status  of  our  people;  and  it  is  the  high  function  of  this  Con- 
vention not  to  re-establish  the  supremacy  of  the  white  people,  but  to  give  to  them 
moral  and  intellectual  emancipation  from  this  curse  that  is  upon  them. 

To  an  observer  of  political  conditions  in  any  part  of  this  State  where  the  negro  is 
a  factor,  this  condition  of  affairs  will  be  observed,  that,  in  order  to  rid  ourselves  of  his 
domination  in  our  domestic  institutions,  methods  have  had  to  be  resorted  to  which  can- 
not be  justified  on  any  ground  except  that  of  absolute  necessity.  With  what  result, 
Mr.  Chairman!  With  the  result  that  there  comes  up  from  the  good  people  of  this  State 
a  cry  for  a  purification  of  the  political  conditions  that  surround  them,  which  finds 
expression  in  the  presence  here  of  this  Convention  to-day. 

I  shall  cast  no  stone,  Mr.  Chairman,  at  the  men  who  have  used  these  objectionable 
methods.  While  we  may  not  have  personally  participated  in  what  has  been  done,  we, 
in  all  parts  of  Virginia,  have  enjoyed  its  fruits,  and  we  are  not  less  culpable,  even  if 
less  brave,  than  the  men  that  have  done  these  things  in  our  interest,  and  with  our 
approval.  But  the  time  has  come,  Mr.  Chairman,  when  we  are  reaping  the  fruits  of  this 
condition.  The  time  has  come  when  the  canker  is  eating  into  the  hearts  of  this  people, 
and  the  time  has  come  when  some  method  must  be  found  of  freeing  us  from  it.  There 
never  was  a  more  universal  sentiment  going  up  from  any  people  of  this  earth  than 
the  cry  which  goes  up  from  Virginia  to-day  for  emancipation  from  the  conditions  which 
have  absolutely  enslaved  us.  What  has  it  meant  to  Virginia,  Mr.  Chairman?  Where 
is  the  man  within  the  sound  of  my  voice,  where  is  the  man  within  the  broad  limits  of 
this  State,  who  has  felt  in  the  last  thirty  years  a.ble  to  think  or  to  act  v/ithout  refer- 
ence to  this  great  problem?  In  all  that  time  there  has  been  no  vote  cast  in  Virginia 
without  being  influenced  and  controlled  by  this  domestic  question.  What  then,  Mr. 
Chairman,  comes  of  the  intellectual  freedom  of  our  people?  If  there  is  no  intellectual 
freedom,  where  is  the  possibility  of  intellectual  growth; — where  is  the  possibility  of 
intellectual  leadership?  One  of  the  great  curses  that  this  thing  has  put  upon  our 
people  is  that  it  has  reduced  them  from  the  position  of  intellectual  independence  and 
intellectual  leadership,  which  they  once  enjoyed,  down  to  the  level  of  a  people  without 
influence  in  the  councils  of  this  nation. 

I  am  one  of  those,  Mr.  Chairman,  who  can  find  no  satisfaction  in  the  brilliant  his- 
tory of  the  past  if  it  is  in  sad  and  painful  contrast  with  the  conditions  of  the  presenr. 
I  never  go  in  a  gathering  of  Virginia  people,  where  the  name  of  Virginia  is  lauded, 
and  listen  to  our  orators  recount  our  ancient  glory,  without  a  feeling  of  sadness  and 
humiliation  at  the  thought  that  our  present  is  absolutely  without  achievement.  Is  that 
due,  Mr.  Chairman,  to  a  degeneracy  of  our  people  or  to  a  loss  of  power  and  greatne^^s 
among  them?  I  do  not  believe  it.  On  the  contrary,  I  believe  that  it  is  due  to  the 
shackles  that  have  been  put  upon  their  freedom  and  independence  of  action,  which 
prevent  them  from  becoming  leaders  again  in  the  thought  and  in  the  action  of  tne 
nation.  I  think,  then.  Mr.  Chairman,  that  it  is  our  high  duty  and  function  to  emancipate 
the  intellect  of  the  people  of  Virginia. 

But  that  is  not  all.  The  moral  standards  of  our  people  as  regards  public  questions 
have  bpen  degraded  bv  the  conditions  to  which  they  have  had  to  submit,  and  many 
things  have  been  palliated  and  approved  for  which  there  can  be  no  justification  except 
the  justification  of  necessity.  In  many  parts  of  this  State.  Mr.  Chairman,  while  the 
negro  vote  is  no  longer  a  menace  as  a  negro  vote,  it  is  a  fact,  which  m  the  confidence 
of  a  Democratic  conference  we  must  speak  of  and  consider,  that  the  vote,  even  if  never 
cast  is  taken  and  counted  in  whatever  direction  the  political  exigencies  of  the  moment 
may  require  What  will  be  the  end  of  a  condition  such  as  this?  If  permitted  to  con- 
tinue where  will  it  lead  our  people,  and  what  will  be  their  destiny?    An  appreciation  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


2961 


this  danger  is  what  made  Virginia  send  this  Convention  into  this  hall,  and  we  shall 
fail  of  the  highest  moral  duty  that  could  be  placed  upon  us  unless  we  uproot  the  con- 
ditions which  surround  us  and  make  inipossible  a  repetition  or  continuation  of  this 
ruinous  state  of  affairs.  We  people  of  the  Black  Belt  realize  all  this,  Mr.  Chairman, 
in  a  way  that  many  of  you  gentlemen  from  other  sections  of  the  State  find  it  impossible 
to  do.  AVe  know  that  we  must  find  a  remedy  and  an  efficient  remedy  for  this  condi- 
tion. We  shudder  to  think  of  the  destinies  of  our  people  if  we  fail,  and  we  shudder  to 
think  of  the  lost  opportunity  which  would  mean  so  much  to  their  happiness  and  to 
their  welfare  if  we  fail  to  avail  ourselves  of  this  opportunity:  and.  therefore.  Mr. 
Chairman  and  gentlemen  knowing  that  this  is  the  problem,  and  realizing  that  these 
are  the  conditions  which  surround  us,  the  representatives  of  the  Black  Belt  of  Virginia 
have  determined  that  their  duty  is  to  write  the  one  word  "efficient"  on  any  plan  of 
suffrage  that  is  adopted,  and  to  make  everything  else  bend  to  the  accomplishment  of 
that  high  result.  No  plan  can  be  favored  by  us  that  is  not  efficient.  No  plan  can  be 
favored  by  us  that  does  not  remove  from  us  this  great  curse.  Xo  plan  can  be  favored 
by  us  that  does  not  restore  to  Virginia  her  moral  standards  and  her  intellectual  free- 
dom.   We  have  been  wedded  to  no  special  plan. 

Each  one  of  us  has  had  his  different  view  of  how  this  problem  should  be  solved. 
Each  one  of  us  has  made  suggestions  to  the  Suffrage  Committee  of  what  it  would  be 
best  to  do.  but  each  one  of  us  has  felt  that  it  was  an  overwhelming,  moral  duty  to 
sacrifice  whatever  preconceived  ideas  any  of  us  might  entertain  in  order  to  reach  an 
agreement  and  to  find  a  solution  of  this  problem.  We  have  not  expected  to  find  any- 
thing entirely  ideal;  but  we  have  gone  into  this  inqtiiry  with  this  great,  and,  we  think, 
this  patriotic  purpose,  of  finding  an  efficient  remedy  for  the  horrors  of  our  present 
condition. 

Our  objection,  Mr.  Chairman,  to  the  plan  proposed  by  the  minority  is  that  it  is  not 
efficient;  that  it  will  furnish  no  solution  of  this  problem;  that  it  is  based  upon  an 
erroneous  conception  of  what  the  problem  really  is;  that  it  fails  to  realize  where  we 
stand  and  the  necessities  of  our  people,  and  relegates  us  again  to  the  very  condition 
which  the  fond  hopes  of  our  people  believe  we  can  relieve  them  from  in  this  Conven- 
tion. Why  do  we  say  that?  vrha.t  justifies  the  earnest  conviction  of  our  hearts  that 
the  minority  plan  fails  in  this  regard?  It  is  because  the  problem  is  not  the  political 
supremacy  of  the  black  man.  That  Question,  as  I  have  said,  has  been  settled  in  East- 
ern, as  well  as  Western.  Virginia  forever.  The  evidence  that  it  is  settled  exists  right 
here  upon  this  floor.  Members  of  our  race,  of  the  same  party  s:.-mpathie5.  and  of  the 
same  personal  and  political  principles,  come  to  this  convention  from  the  black  cotmtry. 
as  those  that  come  from  the  white  country.  But  the  problem  is  this,  to  take  this  black 
man  out  of  the  suffrage  of  Virginia  as  a  factor  and  remove  him  as  a  disturbing  and 
demoralizing  influence.  We  do  not  fear  his  numbers.  We  fear  his  presence.  As 
long  as  he  is  in  the  suffrage  with  us  in  any  numbers,  our  curse  is  still  upon  us,  we 
will  still  be  in  the  grasp  of  moral  and  intellectual  servitude — servitude  to  the  idea 
that  we  cannot  think,  that  we  cannot  act.  with  independence  upon  any  of  the  great  public 
questions  that  confront  the  citizens  of  this  country,  and  he  will  still  be  a  destroyer  of 
the  morality  of  our  political  standards,  because  there  will  always  be  a  large  faction 
among  the  vrhite  people  of  Virginia  that  VN'ill  continue  to  justify  anything  that  will  keep 
the  black  man  out  and  put  the  white  man  in  political  control. 

The  report  of  the  minority  of  this  committee  is  based  upon  the  idea  that  all  that  is 
necessary  for  us  to  do  is  to  give  a  white  majority.  That  report  by  confession  still 
leaves  the  black  man  with  the  balance  of  power  in  the  State  of  Virginia.  That  report 
leaves  the  problem  with  which  we  are  confronted  as  serious  and  as  deadly  as  it  is 
to-day;  and  it  is  the  deliberate  judgment  of  those  men  of  this  com^mittee  vrho  come 
from  closest  touch  with  this  problem,  that  it  would  be  as  well  for  the  moral  and  intel- 
lectual prosperity  and  happiness  of  this  people  for  this  Convention  lo  adjourn  and  do 
nothing  as  to  adopt  the  minority  report  that  is  presented  to  the  Convention.  And 
why?  I  have  attempted  to  show  you.  Mr.  Chairman  and  gentlemen,  that  the  question 
is  not  the  creation  of  a  white  majority  in  the  State,  but  the  question  is  the  removal 
of  the  black  man  as  a  poisonous  factor  in  the  politics  of  the  State.  What  fault  do  v*e 
find  with  the  minority's  position  as  stated  in  their  report?  We  find  that  the  only 
obstacle  that  is  put  in  the  way  of  the  negro  suffrage  by  the  minority  report  is  in  one 
shape  or  another  an  educational  qualification.  At  first,  and  until  1904.  that  obstacle 
is  expressed  to  be  the  mere  ability  to  read  any  section  of  the  Constitution,  alternative 
with  the  understanding  clause.  After  1904  it  is  only  the  requirement  of  making  out 
an  application  for  registration  in  the  voter's  ovrn  handwriting,  and  making  out  his 
ballot  without  assistance.  That  is  all,  except  the  poll-tax.  Of  course,  in  saying  this. 
Mr.  Chairman,  I  am  not  referring  to  those  ordinary  prerequisites  such  as  age  and 
residence.  But,  except  the  poll-tax.  the  only  deterrent  to  the  vote  of  an  adult  resident 
of  this  State  proposed  and  favored  by  the  minority  of  this  committee  is.  after  1904,  the 
ability  to  make  out  in  the  voter's  own  handwriting,  both  his  application  for  registration 
and  his  ballot  as  a  voter. 


2962  DEBATES  OF  THE  COXSTITUTIOXAL  COJfVEXTIOX  OF  VIRGINIA. 

What  do  these  gentlemen  tell  us  in  reference  to  that  matter?  They  tell  us  that 
one  of  the  advantages  of  their  plan  prior  to  1904,  is,  that  it  removes  from  adminstra- 
tive  operation  of  the  understanding  clause  334,242  citizens  of  the  State  who  can  read, 
of  whom  265,000  are  white  men.  The  difference  between  that  334,242,  the  total 
admitted  under  the  reading  clause,  and  the  265,000  of  them  that  are  white,  is  69,252 
that  are  negroes,  and  these  69.252  negroes  step  into  the  suffrage  the  day  after  this 
proposition  is  adopted.  That  is  one  half  of  the  total  negro  vote  in  the  State  of  Vir- 
ginia. The  whole  negro  vote  in  the  State  of  Virginia  is  146,000,  and  here  are  70,000  of 
them  that  step  into  the  suffrage  the  very  day  that  this  plan  is  adopted,  and  are  entitled 
to  registration.  If  the  problem  is  to  remove  the  negro  as  a  factor  and  to  emancipate 
morally  and  intellectually  the  white  people  of  Virginia,  then  how  is  that  accomplished 
when  you  leave  half  of  the  negroes  entitled  to  suffrage  the  very  day  that  you  ad'^pt  the 
Constitution,  and  hand  over  to  them  at  once  the  whole  balance  of  power  in  the  State. 

Mr.  Daniel:  Before  1904'  the  poll  tax  and  understanding  clause  applies  to  the 
present  electorate  under  the  minority  plan.  In  the  minority  report  the  poll  tax,  the 
reading  and  writing  or  the  understanding  stand  betw^een  the  voter  of  any  kind  and 
the  polls.  Nothing  else  in  the  majority  plan  stands  between  the  voter  except  the 
capitation  tax  and  understanding  the  duties  of  the  offices,  and  to  have  worked  three 
months.  That  would  take  in  every  negro  farm  hand,  every  negro  laborer  of  every 
kind.    What  is  the  difference  in  that  respect  between  them? 

Mr.  Thom:  I  shall  attempt  to  discuss  the  majority  plan  and  its  very  great  dif- 
ference from  the  minority  plan  as  I  proceed.  I  regard  the  difference  as  wide  as  the 
poles,  I  will  say,  Mr  .Chairman,  but  I  cannot  stop  at  this  moment  to  discuss  it,  because 
it  will  naturally  fall  in  with  another  portion  of  my  argument  more  appropriately. 

I  am  arguing,  Mr.  Chairman,  to  shov/  what  the  majority  of  this  committee  feel 
is  the  unsatisfactory  remedy  proposed  by  the  minority;  and  I  say  that,  by  the  very 
terms  of  this  report,  one-half  of  the  present  negro  voters  of  the  State  come  into  the 
suffrage  the  very  moment  that  this  minority  proposition  is  adopted.  Will  that  even 
tend  to  solve  our  problem.  Will  that  raise  one  finger's  weight  from  the  burden  of 
Virginia?  If  the  question  was  simply  to  reduce  the  negro  numerically  in  the  suffrage 
of  the  State,  that  would  be  a  valuable  suggestion,  but  if  the  problem  is  to  remove  the 
negro  as  a  factor  from  the  politics  of  the  State,  then  it  offers  no  shadow  of  relief.  But 
that  is  not  all.  Here  we  have  in  effect  (leaving  out  for  the  moment  the  question  of 
capitation  tax),  throughout  the  whole  of  this  minority  plan,  education  in  one  form  or 
another,  and  education  alone.  Everything  else  in  the  plan  is  alternative  with  educa- 
tion. Every  applicant  for  suffrage  has  a  right  to  go  in  at  that  gap  of  education.  He 
may  also  go  in  at  others,  but,  as  this  is  an  alternative,  he  has  a  right  to  go  in  at  that. 
Sixty-nine  thousand  of  them  march  in  at  once  by  the  concession  of  the  minority;  and 
then  what  takes  place?  What  is  the  condition  of  the  negro,  so  far  as  education  goes, 
in  the  State  of  Virginia?  V/e  are  attempting  with  one  hand  to  erect  a  barrier  in  his 
way  to  the  ballot-box  by  saying  he  must  be  educated,  and  with  the  other  we  are  furnish- 
ing him  v/ith  public  school  facilities,  which  will  give  him  the  very  education  which 
is  made  a  prerequisite  for  him  to  become  a  voter.  We  are  erecting  a  barrier  with  one 
hand;  we  are  destroying  it  with  the  other.  If  our  educational  scheme  succeeds,  our 
suffrage  scheme  fails.  That  educational  system  has  resulted  already,  under  the 
minority  plan,  in  placing  upon  us  one-half  of  the  negro  vote  in  the  State  of  Virginia 
td-day.  We  are  told,  Mr.  Chairman,  that  such  a  plan  as  this  is  not  a  mere  matter 
of  experiment  with  our  people;  that  it  has  already  been  tried  and  found  successful  in 
five  of  the  other  Southern  States;  that  it  has  been  tried  in  Mississippi;  that  it  has 
been  tried  in  Louisiana  and  in  South  Carolina,  and  that  it  has  been  approved  in  North 
Carolina,  and  lately  in  the  State  of  Alabama. 

We  are  pointed  to  these  States  as  illustrations  and  as  demonstrations  of  the  fact 
that  what  suits  them  and  what  is  claimed  to  have  given  them  a  remedy  must  suit  us 
and  give  us  a  rerqedy.  I  challenge  both  propositions.  I  allege  it  to  be  a  fact  that  the 
experiment  has  not  been  satisfactorily  tested  in  any  one  of  the  Southern  States,  and 
I  further  allege  it  to  be  a  fact  that  their  conditions  and  ours  are  entirely  dissimilar 
in  many  essential  particulars. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA.  2963 


When  did  these  suffrage  laws  go  into  effect  in  the  Southern  States?  In  Missis- 
sippi in  1892,  in  Louisiana  in  1898,  in  South  Carolina  in  1898,  in  North  Carolina  in  1902, 
and  they  have  not  yet  been  adopted  in  the  State  of  Alabama.  The  race,  Mr.  Chairman, 
between  the  suffrage  clause  on  the  one  hand  and  the  educational  system  on  tlie  other 
cannot  be  determined  in  the  series  of  years  marking  the  longest  period  that  has 
elapsed  in  any  one  of  these  States,  namely  in  Mississippi.  This  question  is  not  one 
to  be  solved  in  a  day.  It  is  one  the  development  of  which  must  be  watched  during 
the  recurring  years  until  both  the  educational  system  and  the  educational  test  of 
suffrage  have  had  a  fair  opportunity  of  action. 

But  not  only  that.  I  contend  further,  Mr.  Chairman,  that  our  brethern  of  the  State 
of  Virginia  should  take  the  conscientious  convictions  on  this  question  of  those  of  us 
who  are  closest  in  tou.ch  with  our  actual  conditions  here,  sooner  than  follow  the 
example  of  another  State,  the  actual  conditions  in  which  they  cannot  know.  It  is 
the  earnest  and  the  solemn,  and,  I  believe,  the  unanimous  conclusion  of  the  men  who 
are  nearest  to  this  problem  in  the  State  of  Virginia,  that  our  conditions  are  radically 
different  from  those  existing  in  other  Southern  States  of  this  country  on  this  question 
of  the  negro;  that  the  negro  with  us  is  a  different  man;  that  he  is  nearer  to  our  civiliza- 
tion; that  he  is  more  easily  trained  and  more  easily  educated,  and  that  this  expedient 
of  an  educational  restriction  upon  his  suffrage  will  furnish  us  no  adequate  relief  what- 
ever. 

But  that  is  not  all.  There  are  differences  in  conditions  between  us  and  the  other 
Southern  States  absolutely  lying  upon  the  surface  of  this  question.  When  the  State 
of  Mississippi  in  1890  adopted  its  Constitution,  to  go  into  effect  in  1892,  the  illiterate 
negroes  in  that  State  constituted  more  than  60  per  cent,  of  the  negro  population, 
and  to-day  when  we  in  Virginia  are  asked  to  adopt  the  same  policy,  the  illerate  negroes 
in  the  State  of  Virginia  amount  to  less  than  33  per  cent,  of  our  negro  population. 

Mr.  Daniel:    In  Mississippi  the  whole  illiterates  were  138,450,  and  the  black — 

Mr.  Thorn:    What  year  are  you  talking  about? 

Mr.  Daniel:  1892. 

Mr.  Thom:  I  am  talking  about  1890.  I  have  verified  these  figures.  I  have  the 
exact  proportion. 

Mr.  Daniel:  It  gives  them  a  white  majority  in  the  State  of  45,000  amongst  the 
illiterates. 

Mr.  Thom:  I  have  the  exact  figures  taken  from  the  best  authority  that  can  be 
gotten.  In  1890  the  colored  illiterates  in  the  State  of  Mississippi  amounted  to  sixty 
and  ninety-one-hundredths  per  cent,  of  the  negro  population,  and  that  was  when  Mis- 
sissippi adopted  this  plan  of  suffrage  to  go  into  effect  two  years  later. 

Mr.  Daniel:  That  is  true;  but  it  left  ninety-odd  thousand  r-egro  illiterates, 
because  their  population  was  so  vast.  It  gives  us  150,000  white  majority  above  that 
of  Mississippi. 

Mr.  Thom:  That  may  be  true,  but  this  is  not  the  point  I  am  endeavoring  to  make. 
To-da3^  I  reiterate,  if  we  are  asked  to  adopt  the  same  policy,  we  do  it  in  a  condition 
in  our  State  where  the  illerate  negroes  number  less  than  33  per  cent. — in  exact  figures, 
32s2  per  cent,  of  the  negro  population  of  the  State — over  10  years  old.  But  that  is 
not  the  only  consideration,  Mr.  Chairman.  We  are  pointed  also  to  the  State  of 
Louisiana — 

Mr.  Daniel:    The  minority  of  the  committee  has  not  made  any  allusion  to  it. 
Mr.  Thom:    Not  in  the  report. 

Mr.  Daniel:    Only  to  the  two  States  that  have  preceded  on  these  lines. 

Mr.  Thom:  Louisiana  has  done  so  also.  I  regard  that  Louisiana's  system  of  suffrage 
is  based  upon  that  idea.  In  Louisiana,  from  1880  to  1890,  the  last  figures  that  are  avail- 
able to  me,  the  illiteracy  of  that  State  was  reduced  from  78,  according  to  one  authority, 
and  79  according  to  another  authority  down  to  72,  or  6  per  cent.;  while  the  same  years 
from  1880  to  1890,  Virginia's  illiteracy  was  reduced  from  73  and  a  fraction  to  57  and  a 


2964  DEBATES  OF  THE  COXSTITrTIOX AL  CONVENTION  OF  VIRGINIA. 

fraction,  or  16  per  cent.  Now,  in  the  last  decade,  from  1890  to  1900,  Virginia's  illiteracy 
has  been  reduced  from  57  and  a  fraction  to  32  and  a  fraction,  or  25  per  cent.;  and  at  the 
same  rate  of  reduction  another  decade  will  bring  down  the  proportion  of  negro  illiterates 
in  the  State  of  Virginia  to  the  figures  which  the  white  illiterates  now  show  in  reference 
to  the  white  population;  and  in  ten  years  we  will  be  on  the  same  basis  of  illiteracy 
as  to  the  negro  population  that  we  are  now  in  the  State  of  Virginia  as  to  white  illi- 
teracy, or  about  8  per  cent.  And  why  is  this  true?  What  are  the  influences  that  are 
doing  this  work  in  Virginia?  It  is  the  difference  in  our  common  school  systems  as  will 
be  shown  by  the  money  that  is  being  expended  on  the  illiterates  of  Virginia  as  com- 
pared with  that  which  is  being  expended  on  the  illiterates  in  other  States.  I  ask  the 
careful  attention  of  you  gentlemen  of  this  conference  to  the  figures  which  show  the 
immense  energy  that  is  being  put  forth  by  Virginia  to  destroy  illiteracy  in  her  midst, 
overshadowing  many  times  the  efforts  that  are  being  made  in  some  of  the  Southern 
States  and  altogether  in  excess  of  the  efforts  that  are  being  made  in  any  of  the 
Southern  States.  Alabama  was  expending  in  1899  on  her  illiterates  $808,000.  Virginia 
was  expending  during  the  same  year  $1,971,01)0.  Louisana  was  expending  in  1899  on 
her  illiterates  $1,126,000,  as  against  Virginia's  $1,971,000.  Mississippi  was  expending 
in  that  year  $1,165,000  against  Virginia's  $1,971,000.  North  Carolina  was  expending 
in  that  year  $931,000  as  against  Virginia's  $1,971,000,  and  South  Carolina  was  expending 
then  $769,000  as  against  Virginia's  $1,971,000.  Let  us  compare  the  illiterates,  the  num- 
ber in  these  States  according  to  the  latest  data  that  we  have.  The  latest  data  avail- 
able to  me  were  only  for  the  year  1890,  but  this  will  be  sufficient  to  give  their 
relative  proportion.  At  that  time  Alabama  had  438,000  as  against  Virginia's  365,000; 
and  Alabama  was  therefore  expending,  according  to  this  calculation  in  the 
relative  proportion  of  $1.84  per  capita  upon  her  illiterates  as  against  Vir- 
ginia's $5.39  per  capita  upon  her  illiterates.  Louisiana  had  364,000  illiterates  and 
Virginia  365,000  illiterates.  Louisiana  was  expending  $3.09  against  Virginia's  $5.39 
per  capita.  And  so  it  goes  on  through  the  list,  Virginia  expending  in  actual  money 
almost  twice  as  much  as  any  one  of  her  sister  States,  with  her  illiteracy  less  than 
most  of  them — less,  I  believe,  in  actual  numbers  than  any  of  them  except  the  State 
of  South  Carolina,  the  State  of  South  Carolina  with  360,000  illiterates  against 
Virginia's  365,000.  Can  it  be  wondered  at  then,  Mr.  Chairman,  that -illiteracy  is  disap- 
pearing in  the  State  of  Virginia  at  a  rate  vastly  in  excess  of  that  at  which  if  is  dis- 
appearing in  other  Southern  States  of  this  Union?  Is  it  any  longer  to  he  marvelled  at, 
that  between  the  year  1890  and  the  year  1900,  25  per  cent,  of  its  illiterates  have  disap- 
peared, reducing  the  total  number  remaining  to  about  32  per  cent.?  If  these  same 
efforts  are  continued,  and  if  the  same  purpose  of  this  people  is  carried  out  in  the  mat- 
ter of  education,  then  the  illiteracy  of  the  State  of  Virginia  will  be  reduced  so  far  in 
ten  years  as  to  absolutely  destroy  education  as  a  factor  in  the  question  of  suffrage. 

Mr.  Daniel:  May  I  call  my  friend's  attention  to  the  fact  that  for  the  last  decade 
the  figures  show  otherwise,  as  to  white  and  colored  illiteracy  in  the  last  decade.  The 
whites  from  1890  to  1900  increased  in  percentage  of  school  population  from  58  to  59 
and  the  colored  fell  off  from  47  to  43. 

Mr.  Thorn,:  (But,  notwithstanding  that,  we  find  that  within  these  ten  years  the 
illiteracy  among  the  colored  people  was  decreased  at  the  astounding  rate  of  25  per 
cent. — from  57  to  32;  and,  with  that  as  a  fact,  as  it  must  be  if  my  friend  says  it  is  a 
fact  we  find  that  illiteracy  is  an  absolutely  disappearing  factor,  and  it  is  disappearing 
so  fast  that  in  ten  years  it  will  disappear  as  a  matter  of  moment  or  importance — 

Mr.  Hun  ton:    Do  I  understand  that  you  deny  the  correctness  of  the  minority 
report,  which  states  that  there  are  about  half  of  the  negroes  illiterates?    Do  you  deny 
the  accuracy  of  that  statement. 
Mr.  Thom:    No,  sir;  I  do  not. 

Mr.  Hunton:  The  minority  report  states  that  about  50  per  cent,  of  the  negroes 
are  illiterates.  As  I  understand,  you  say  it  is  about  32  per  cent.  I  do  not  understand 
you  mean  to  deny  that  fact. 


DEBATES  OF  THE  CONSTITUTION' AL  COXVEXTIOX  OF  YIRGIXIA. 


2965 


Mr.  Thorn:  No,  sir.  Both  statements  are  true.  The  statement  of  the  minority 
is  based  upon  the  illiteracy  of  the  adult  negro,  21  years  of  age,  and  allowable  to  vote. 
The  illiteracy,  the  basis  of  which  I  am  giving,  is  ten  years  old  and  over,  of  the  whole 
negro  population.  I  am  taking  that  as  a  test  of  the  way  illiteracy  is  disappearing 
in  the  State  of  Virginia. 

All  those  who  are  now  10  years  old  will  be  21  years  old  in  ten  or  eleven  years; 
and  1  am  speaking  now  of  the  efficiency  of  the  public  school  system  of  this  State,  and 
the  result  that  is  being  worked  upon  the  illiterate  masses  of  the  State. 

Mr.  Meredith:  Was  your  $1,971,000  the  entire  State  contribution  to  the  school 
fund  or  State  and  local. 

Mr.  Thorn:    I  cannot  tell  you;  I  think  it  is  State  and  local. 

Several  Members:    State  and  local. 

Mr.  Thom:  But  that  is  what  we  expend.  Now,  what  further  inference  is  there 
to  be  drawn  from  those  figures?  That  in  1880,  which  is  only  twenty  years  ago,  three 
fourths  of  the  negroes  of  this  State  were  illiterate — 73  per  cent,  to  be  exact;  and  in 
1900  less  than  one  third  are  illiterate,  or  32  per  cent,  to  be  exact. 

And  I  desire,  Mr.  Chairman,  to  make  another  point,  and  that  is  that,  accord- 
ing to  the  experience  in  our  part  of  the  State  the  negro  attendance  on 
the  public  schools  is  vastly  greater  than  the  white  attendance  on  the  pub- 
lic schools,  in  the  country  districts.  I  have  heard  a  gentleman  whom  I  now 
see  sitting  before  me  on  this  floor  make  the  statement  of  his  own  experience  in  the 
county  of  Nansemond  since  this  Convention  assembled,  of  how  he  was  driving  along 
the  road  and  met  three  white  children  coming  from  a  white  school,  and  he  was 
absolutely  unable  to  pass  through  with  his  carriage  the  crowd  of  negro  children  that 
were  crowding  the  road  coming  from  the  negro  schools.  And  this  is  not  left  simply 
to  the  testimony  of  gentlemen  on  this  floor.  I  read  the  following  from  a  report  made 
by  Samuel  F.  Barrows,  of  Boston,  and  published  in  the  Educational  Reports  of  the 
United  States  of  one  of  the  recent  years,  1890-1891: 

The  interest  of  negroes  in  education  is  immense. ,  They  have  discovered  that  it 
is  the  ladder  on  which  they  must  rise.  Both  children  and  parents  are  making  great 
sacrifices  to  secure  it.  The  enrollment  of  colored  children  in  the  schools  has  im- 
mensely increased.  In  some  districts  they  literally  fill  the  doors  and  windows  of  the 
school  houses. 

Now  I  say,  Mr.  Chairman,  that  that  is  the  condition  more  especially  in  the  country 
districts  than  in  the  city  districts;  that  the  proportion  of  white  children  being  educated 
in  the  white  schools  of  the  cities  is  larger  than  that  of  the  negroes  being  educated 
in  the  negro  schools,  but,  in  the  country,  the  proportion,  in  my  judgment  and  in  my 
experience,  is  not  preserved,  and  the  most  defenceless  portion  of  our  population,  the 
largest  portion  of  our  population,  the  country  portion  of  our  population,  that  which 
requires  at  our  hands  special  and  most  earnest  efforts  at  relief,  is  the  one  threatened 
quickest  with  the  disappearance  of  illiteracy  among  the  colored  population. 

Mr.  Chairman,  it  is  this  fleeting  and  disappearing  qualification  that  we  people  of 
the  Black  Belt  are  asked  to  accept  as  the  solution  of  our  trouble.  Can  it  be  wondered 
at  that  we  hesitate?  Can  it  for  one  moment  be  wondered  at  that  we  are  unwilling  to 
surrender  the  first  opportunity  that  we  have  had  for  thirty  years  to  escape  from  under 
the  burden  of  this  curse?  Our  people  have  yearned  and  longed  for  this  day  of  their 
deliverance  to  come.  They  looked  forward  to  it  as  the  day  of  their  salvation.  They 
looked  forward  to  this  as  an  opportunity  for  them  to  escape  once  more  into  the  sunlight 
of  intellectual  and  moral  freedom.  Can  we  go  back  to  them,  gentlemen  of  this  con- 
ference, when  they  have  asked  of  us  bread,  and  give  them  this  stone?  Can  we  justify 
ourselves  to  our  people  in  throwing  away  this  opportunity?  Gentlemen,  this  means 
something  to  us  of  the  Black  Belt,  It  means  everything  to  us  of  the  Black  Belt.  It 
means  an  opportunity  for  the  future;  it  means  the  salvation  of  the  present.    Can  we 


2966 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


disappoint  their  hopes?  Can  we  throw  away  this  opportunity?  As  much  as  we  would 
desire  to  reconcile  our  differences,  as  much  as  we  would  desire  to  come  into  harmony 
with  the  other  members  of  this  committee,  as  much  as  we  would  desire  to  remove 
every  element  of  discord  and  difference  between  us,  can  we  give  up  the  chance  of  a 
life  time  and  a  generation;  can  we  go  back  to  the  old  conditions  from  which  we  are 
trying  to  escape,  and  can  we  go  back  to  our  people,  bowed  down  with  disappointment 
and  humiliation  because  v/hat  we  have  brought  them  amounts  to  nothing. 

Mr.  Chairman  and  gentlemen  of  the  Conference,  I  have  attempted  to  outline  the 
negro  problem  as  it  relates  to  the  suffrage  and  to  indicate  how,  in  my  opinion,  the  plan 
suggested  here  by  the  minority  is  constructed  in  utter  disregard  of  the  essential  feat- 
ures of  that  problem. 

I  desire  now  to  enlarge  somewhat  and  to  explain  more  fully  what  I  consider  that 
problem  to  be.  Lest  I  should  be  misunderstood,  I  desire  to  say  that  in  my  opinion 
there  will  never  come  a  time  in  the  history  of  this  State  when  the  Anglo-Saxon  will 
again  submit  to  the  domination  of  the  black  man. 

No  matter  what  it  costs,  no  matter  what  the  method,  this  one  fact  stands  out 
supremely  true,  that  the  Anglo-Saxon  race  is  now  and  will  be  forever  master  where- 
ever  it  exists.  But  the  terrible  consequence  that  the  menance  to  white  supremacy  has 
left  upon  us  remains,  and  that  is,  that  we  have  upon  us  the  curse  of  the  method  by 
which  that  supremacy  has  been  achieved.  It  had  to  be  achieved  by  bloodshed  or  by 
other  means  equally  as  effective.  To  my  personal  regret,  it  has  been  thought  best  by 
our  people  to  adopt  these  other  means;  and  now,  after  thirty  years,  the  cry  goes  up 
from  every  part  of  this  State,  from  the  seashore  and  from  the  mountains,  from  the 
plains  and  from  the  valleys,  for  relief  and  regeneration  from  the  conditions  into  which 
this  thing  has  plunged  us.  The  result  has  not  merely  wrought  familiarity  in  our  midst 
with  corrupt  practices  at  the  ballot-box,  but  it  has  gone  further.  It  has  enchained  and 
enslaved  the  activity  and  the  intellect  of  our  people. 

The  Anglo-Saxon  represents  the  very  aristocracy  of  the  races.  It  is  proud  of 
its  position  It  is  determined  to  maintain  it.  And,  when  its  domination  and  supremacy 
is  questioned  by  any  race,  and  especially  by  an  inferior  race,  it  loses  sight  of  every 
other  question  and  of  every  other  possibility,  and  stands  with  its  face  to  the  front 
until  that  question  is  solved  and  solved  forever.  That  has  been  its  history  everywhere. 
As  is  said  by  the  author  of  "An  Appeal  to  Pharoah": 

Pour  centuries  have  not  elapsed  since  the  v/hite  man  first  set  his  foot  upon  the 
eastern  shore  of  the  New  World.  Every  step  westward  has  been  marked  by  the 
blood  of  the  race  he  found  here  and  drove  before  him.  The  Indian  has  been  nearly 
swept  from  the  face  of  so  much  of  the  North  American  Continent  as  is  especially  con- 
secrated to  the  principles  of  the  equality  and  brotherhood  of  mankind.  And  now,  at 
the  last,  standing  on  the  grave  of  the  Red  man,  and  shutting  the  Western  gate  of  the 
Republic,  without  ceremony,  in  the  face  of  the  Yellow  man,  we  turn  and  proclaim 
anew  to  ourselves  and  to  the  world  that  our  destiny  and  the  destiny  of  the  Black  man 
is  one.    It  is  very  strange. 

It  can  never  be  true. 

That  proposition  is  recognized  not  only  by  us  here  at  the  South,  but  it  Is  recognized 
everywhere  among  the  civilized  people  of  the  earth.  It  was  recognized  by  the  earliest 
statesmen  of  this  Republic;  it  is  recognized  by  the  latest  statesmen  of  the  Republic, 
and  it  is  recognized  and  acted  upon  here  and  everywhere. 

In  the  October  number  of  the  "  Atlantic  Monthly,"  which  has  just  been  received 
from  the  press,  I  find  this  significant  comment  from  one  of  the  able  professors  and 
students  of  this  country: 

During  the  two  generations  of  debate  and  bloodshed  over  slavery  in  the  United 
States,  certain  of  our  statesmen  consistently  held  that  the  mere  chattel  relationship 
of  man  to  man  was  not  the  whole  of  the  question  at  issue.  Jefferson,  Clay  and  Lincoln 
all  saw  more  serious  facts  in  the  background.    But  in  the  frenzy  of  the  war  time, 


DEBATES  OF  THE  COX STITUTIOXAL  CONVENTION  OF  VIRGINIA. 


2967 


public  opinion  fell  into  the  train  of  the  emotionalists,  and  accepted  the  teaching  of 
Garrison  and  Sumner  and  Phillips  and  Chase,  that  abolition  and  negro  suffrage  would 
remove  the  last  drag  on  our  national  progress.  Slavery  was  abolished,  and  reconstruc- 
tion gave  the  freedmen  the  franchise.  But  with  all  the  guarantees  that  the  source  of 
every  evil  was  removed,  it  became  obvious  enough  that  the  results  were  not  what 
had  been  expected.  Gradually  there  emerged  again  the  idea  of  Jefferson  and  Clay 
and  Lincoln  which  had  been  hooted  and  hissed  into  obscurity  during  the  preva- 
lence of  the  abolitionist  fever.  This  was  that  the  ultimate  root  of  the  trouble 
in  the  South  had  been,  not  the  institution  of  slavery,  but  the  coexistence  in  one 
society  of  two  races  so  distinct  in  characteristics  as  to  render  coalescence  impossible; 
that  slavery  had  been  a  modus  vivendi  through  which  social  life  was  possible;  and 
that  after  its  disappearance  its  place  must  be  taken  by  some  set  of  conditions  wnich, 
if  more  humane  and  beneficent  in  accidents,  must  in  essence  express  the  same  fact 
of  racial  inequality. 

This  is  by  Prof.  William  A.  Dunning. 

So  that  I  see,  Mr.  Chairman,  something  more  in  this  problem  than  the  mere  fact 
of  numerical  equality  or  numerical  superiority. 

I  see  there  is  something  deeper  and  more  far-reaching  in  what  is  before  us  than 
the  mere  question  of  whether  we  can  carry  an  election.  I  see  underneath  it  the 
fundamental  problem  of  what  is  to  be  the  relation  of  these  two  unequal  races.  I  see 
to-day  the  first  and  the  only  chance  that  we  have  for  a  generation  had  to  pass  on  and 
determine  that  question.  I  will  not  accept,  Mr.  Chairman,  any  solution  of  it  w^hich  is 
no  remedy.  I  v/ill  stand  in  my  place  and  protest  here  before  the  representatives  of 
my  people  that  whatever  remedy  we  find  must  be  in  the  first  place  and  always  eflicient. 
This  is  no  new  view  to  me,  Mr.  Chairman.  It  has  been  the  earnest  conviction  of  my 
heart  for  many  years.  I  expressed  it,  if  I  may  be  permitted  to  read  a  short  extract 
from  a  letter  that  I  wrote  upon  accepting  the  nomination  to  this  Convention,  in  the 
following  language: 

For  a  whole  generation  we  have  been  patiently  working  at  the  problem  growing 
out  of  the  enforced  legal  equality  of  two  essentially  different  and  unequal  races.  The 
result  of  this  problem  upon  our  people  has  been  most  disastrous.  In  morals  it  has 
resulted  in  the  lowering  of  our  civic  standards;  intellectually  it  has  dwarfed  us  on  all 
public  questions,  for  in  the  presence  of  a  dreadful  menace  to  our  domestic  and  social 
institutions,  we  have  not  felt  free  to  think  independently  on  any  great  economic  or 
governmental  question.  To  the  Convention  about  to  assemble  is  entrusted  the  task 
of  removing,  as  far  as  possible,  this  great  burden  from  the  manhood  of  Virginia.  I  am 
in  profound  S3^mpathy  with  this  effort.  I  regard  the  purity  of  the  ballot  as  the  safe- 
guard of  American  institutions.  When  this  is  corrupted,  the  fountain  is  poisoned  at  its 
source.  I  realize  that  the  necessity  of  ensuring  control  in  the  hands  of  the  properly 
dominant  race  has  caused  offences  against  the  ballot  to  be  at  times  condoned,  if  not 
approved,  by  our  best  people.  Every  repetition  of  this  offense,  however,  weakens  the 
moral  sense  of  the  people  a.nd  is  a  blow  at  the  safety  of  our  institutions.  Moreover, 
at  no  time  during  this  generation  have  our  people  at  home,  or  their  representatives  in 
the  legislative  bodies  of  the  country,  been  able  to  cast  a  vote  uninfluenced  and  un- 
trammelled by  the  menace  of  this  great  social  and  domestic  problem.  Being  thus 
hampered  in  action,  we  have  been  unable  to  think  with  freedom  and  independence  on 
any  great  national  question,  whether  of  economics  or  of  governmental  policy,  and  have 
thus  forfeited  that  position  of  leadership,  for  which,  during  more  than  half  of  our 
national  existence,  we  were  so  justly  pre-eminent.  No  man  who  is  not  free  in  action 
can  be  free  in  thought,  and  no  one  who  is  not  free  in  thought  can  permanently  domi- 
nate or  lead  the  thought  of  his  time.  I  regard  the  present  as  an  opportunity  to  ac- 
complish, in  a  large  measure,  the  moral  and  intellectual  emancipation  of  our  people. 

I  have  said,  Mr.  Chairman,  that  in  my  opinion  the  people  of  Virginia  and  of  the 
South  have  not  been  free  in  political  action  for  the  last  thirty  years.  No  matter  what 
might  be  the  problem  of  economics  before  them,  no  matter  what  might  be  the  question 
that  was  affecting  their  national  destiny,  there  was  one  question  at  their  heartstone  at 
home  which  they  could  never  for  a  moment  forget  or  disregard,  and  which  absolutely  pre- 
vented them  from  casting  a  vote  on  any  question  on  its  merits,  but  made  them  keep 
their  eyes  always,  all  the  time,  on  this  social  problem  that  was  pressing  upon  them. 


2968 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


If  that  controlled  the  freedom  of  their  action,  then  their  minds  could  not  get  beyond 
the  fetters  which  it  imposed.  If  they  had  no  freedom  of  action,  they  had  no  freedom 
of  thought;  and  no  people  ever  attained  or  maintained  any  leadership  who  are  not 
free  in  thought  to  take  whatever  position  the  merits  of  the  case  before  them  might 
suggest. 

Therefore,  while  I  believe  that  upon  our  mountain  sides  and  in  our  valleys  and 
along  our  sea-shores,  we  have  men  of  the  same  intellectual  capacity  that  in  the  early 
part  of  the  history  of  this  government  illumined  the  pages  of  our  history;  while  I 
believe  that  there  are  men  within  the  sound  of  my  voice,  and  on  this  floor,  with  the 
capacity  to  assert  and  maintain  a  new  leadership  of  the  people,  I  look  around  me  upon 
men  who,  for  thirty  years,  have  been  unable  to  take  that  position  because  they  were 
not  free  to  act  and  to  think,  and,  therefore,  they  were  not  capable  of  leadership. 

It  is  the  high  province  of  this  Convention  to  make  a  solution  of  this  problem  and 
to  set  our  people  free.    To  do  that  we  must  get  rid  of  this  domestic  question,  and  to 
do  that  we  must  not  merely  have  a  numerical  majority  over  these  people:   to  do 
it  we  must  remove  them  as  a  disturbing  factor  in  our  public  affairs.    And  it  is  for 
this,  Mr.  Chairman,  that  I  plead  to  you,  I  plead  for  a  new  emancipation,  not  now  of 
the  black  man,  but  of  the  white  man,  whom  the  black  man  has  enslaved  in  turn.  I 
plead  to  you  for  an  opportunity  to  assert  our  natural  power  and  natural  leadership 
among  the  States  of  this  Union,  and  to  come  to  the  front  once  more  in  the  glory  of 
the  earlier  days.    And  I  believe  we  can  do  it.    I  believe  if  v/e  ever  get  rid  of  this 
question,  we  will  spring  to  the  front  again.    I  believe  that  we  will  produce  again 
men  who  can  take  our  banner  and  carry  it  to  the  front  in  all  the  American  nation. 
I  know  that  our  generation  has  been  sacrificed.    I  know  that  none  of  us  can  ever 
attain  the  goal  which  we  fain  would  seek,  but  I  want  to  secure  freedom  for  our 
children  and  our  children's  children,  and  to  give  to  them  that  which  has  been  denied 
to  us  of  the  present  generation.    Peeling  that  way,  Mr.  Chairman,  I  feel  earnestly  upon 
this  point  of  having  an  efficient  remedy  for  our  troubles.    I  feel  that  it  will  not  do  to 
bring  into  our  suffrage  enough  of  the  negro  voters  to  hold  the  balance  of  power.  I 
feel  that  that  is  no  solution  of  what  we  are  here  to  solve;  I  feel  that  any  plan  that 
admits  that  as  its  basis,  starts  out  with  a  false  conception  of  our  problem;  and,  if  it 
were  adopted,  it  would  leave  a  curse  upon  us  forever,  for  now  and  here  is  our  only 
opportunity —  we  have  had  no  other,  for  thirty  years,  and  will  probably  not  have  one 
again  for  thirty  years  to  come.    And,  Mr.  Chairman,  we  men  of  the  Black  Belt  all  feel 
this.    It  is  not  to  be  wondered  at  that  you  men  of  the  white  districts  of  this  State — 
and  by  white  districts  I  mean  where  your  negro  population  is  small,  (and  I  make  this 
explanation  because  it  must  be  remembered  that  65  per  cent,  of  the  white  population 
of  this  State  is  east  of  the  Blue  Ridge  mountans)  I  say  it  is  not  to  be  wondered  at 
that  you  men  where  the  negro  population  is  small,  do  not  understand  our  problem. 
You  do  not  appreciate  what  it  is  we  are  standing  here  and  fighting  for.    You  think 
that  the  only  thing  you  are  called  upon  to  do  is  to  give  us  a  white  majority.  Gentle- 
men, that  is  not  what  we  want.    We  want  freedom  and  independence.    We  want  to 
be  placed  upon  the  same  platform  with  the   other  free  people  of  the  earth.    We  believe 
we  have  the  power  and  genius  among  our  pople  to  give  that  account  of  ourselves 
which  will  be  in  keeping  with  the  grand  history  of  Virginia;  therefore  it  is  that  we 
can  accept  nothing  that  is  insufficient,  and  that  we  ask,  almost  in  the  form  of  a 
respectful  demand,  at  the  hands  of  our  brethren  of  other  sections,  that  you  give  us 
something  that  will  be  efficient  to  liberate  our  people. 

I  have  argued,  Mr.  Chairman,  that  the  plan  of  the  minority  overlooked  what  we 
were  after;  that  it  was  framed  in  disregard  of  the  problem;  that  it  at  one  fell  swoop 
laid  open  the  registration  books  to  one  half  of  the  negro  population;  and  that  by  the 
ratio  of  decrease  of  illiteracy,  which  had  already  been  established,  in  ten  years  there 
would  be  as  little  illiteracy  among  the  colored  population  of  this  State  as  there  is 
among  the  white  population  to-day. 

Since  last  night  I  have  seen  an  article  from  the  pen  of  one  of  our  Virginia  citizens, 


DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OF  VIEGINIA.  2969 

cast  into  the  shape  of  an  address  and  delivered  recently  in  the  city  of  Buffalo,  in 
which  he  said  that  from  all  his  study  and  all  his  investigation,  he  had  found  that 
Virginia  was  giving  a  larger  proportion  of  its  total  receipts  to  education  than  any 
State  in  the  American  Union.  With  these  Herculean  efforts  to  destroy  illiteracy,  and, 
if  that  be  the  obstruction  to  suffrage,  to  destroy  the  obstruction  that  would  exist 
between  the  negro  and  the  ballot-box,  can  we  as  sane,  as  thoughtful,  as  patriotic  men, 
be  content  with  basing  the  whole  of  our  future  upon  such  a  fleeting  and  disappearing 
factor. 

Now,  Mr.  Chairman,  Inasmuch  as  we  stand  here  face  to  face  with  the  fifteenth 
amendment  to  the  Constitution  of  the  United  States,  when  v\''hat  we  want  to  do  is  to 
write  the  one  word  "  white,"  in  the  Constitution,  and  when  we  are  prevented  from  doing 
that  by  this  Constitution  of  the  United  States,  it  must  be  realized  by  every  one  that 
what  we  do  in  this  direction  must  be  at  least  an  expedient;  it  cannot  reach  the 
dignity  of  the  ideal;  it  must  be  simply  the  best  thing  that  we  can  do  under  adverse 
conditions.  If  that  be  the  case,  then  the  proper  way  to  arrive  at  a  conclusion  as  to 
the  best  thing  that  is  available  for  us  is  to  reach  it  by  the  process  of  elimination.  I 
have  already  attempted  to  eliminate  the  suggestion  based  on  an  educp^tional  test.  I 
shall  now,  with  your  permission,  and  as  I  suppose  I  should,  endeavor  to  take  into  the 
confidence  of  the  Democratic  conferences  of  the  Suffrage  Committee  the  Democratic 
conferees  of  the  Convention  itself,  and  attempt  to  show  the  process  of  evolution  by 
which  this  minority  report  and  this  majority  report  have  been  reached. 

When  the  field  was  first  cleared  for  propositions,  there  were  three  competing  sug- 
gestions before  the  committee. 

One  was  based  on  a  property  qualification  with  its  m.odifications  and  exemptions; 
another  was  an  effort  to  divide  the  people  of  Virginia  into  certain  classes  based  on 
occupation,  which  would  take  in  the  white  man  and  eliminate  the  negro;  and  the  third 
was  entitled:  "  Certain  propositions  which  were  printed  for  the  consideration  of  the 
Committee  on  Elective  Franchise,  by  its  order."  From  this  last  I  read  these  two 
alternate  clauses,  persons  coming  within  either  one  of  vrhich  being  entitled  to  vote: 

Any  person  who  can  understand  and  reasonably  explain  any  section  of  the  Consti- 
tution of  the  United  States  or  State  of  Virginia,  or  who  has  paid  taxes  prior  to  the 
first  day  of  February  in  the  year  in  which  he  offers  to  register  on  property,  real  or 
personal,  amounting  to  at  least  $300 — 

One  faction  of  this  committee  was  attempting  to  find  an  automatic  test  for  the 
ballot.  Those  composing  this  section  were  insisting  that  there  should  be  no  plan 
Adopted  that  was  not  based  upon  a  defi.nite  and  automatic  test.  Another  faction  of 
the  committee  was  insisting  that  that  was  impossible;  that  the  understanding  clause 
in  some  shape  must  be  accepted.  It  is  not  to  be  wondered  at,  Mr.  Chairman,  that 
those  men  upon  whom  the  great  burden  of  this  problem  rests  heaviest  have  always 
been  willing,  from  the  necessity  of  their  case,  to  make  the  most  concessions  as  to 
what  should  be  adopted.  They  were  obliged  to  place  themselves  in  the  position  that 
efficiency  must  at  last  be  the  only  ditch  which  they  would  never  abandon.  I  hold  in 
my  hand  here  a  paper  indicating  what  I  was  personally  attempting — I  hold  in  my  hand 
a  resolution  which  I  personally  offered  twice  before  that  committee: 

Resolved,  That  it  is  the  sense  of  this  committee  that  no  plan  of  suffrage  be  adopted 
based  on  the  understanding  clause. 

At  the  instance  of  gentlemen  more  far-seeing  than  I,  that  motion,  when  twice  pre- 
sented, was  twice  withdrawn;  but  the  battle  waged  around  it  during  all  these  months 
that  we  were  in  conference;  it  waged  around  that  proposition  as  Its  great  storm 
center.  That  resolution  expressed  what  we  were  attempting  to  do.  We,  of  the  Black 
Belt,  knew  the  evils  fast  coming  into  the  suffrage.  We  knew  a,ll  that  has  come  upon 
our  people;  and  an  effort  was  made,  then  and  all  the  time,  to  find  some  solution  that 
187 — Const.  Deb. 


2970 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


would  make  a  recnrrence  of  these  conditions  absolutely  impossible— beyond  even  a 
remote  possibility.  We  proposed  the  property  qualification.  We  proposed  to  exempt 
from  it  all  those  persons  who  had  served  in  any  war  of  the  United  States,  and  the 
descendants  of  all  such  persons.  We  argued  that  proposition  for  days,  and  we  con- 
sidered it,  all  tv/enty  of  us  considered  it— with  our  sense  of  responsibility  and  of 
patriotism  fully  aroused,  and  with  an  earnest  purpose  to  reach  some  solution  that 
would  be  satisfactory  to  the  State. 

But  we  found,  Mr.  Chairman,  the  fact  to  be  that  a  property  qualification  for 
suffrage  existed  nowhere  in  the  American  Union.  We  found  that  it  had  existed  in 
several  of  the  Saates,  notably  in  New  England,  and  it  had  been,  in  one  after  another, 
abandoned  there.  We  found  again  that  it  had  existed  once  in  the  State  of  Virginia, 
and,  when  we  read  the  history  of  her  turmoil  and  her  misundestanding,  we  found 
that,  from  the  early  days  the  light  had  been  over  that  one  question,  and  that  in  the 
Convention  for  1829-30  it  had  been  modified  as  a  test  for  the  elective  franchise,  and, 
the  modification  not  bringing  peace  and  tranquility  among  the  people,  the  Convention 
of  1850  had  discarded  it  forever.  We  found  that  in  many  sections  of  the  State  of 
Virginia  the  same  sentiment  exists  now  in  reference  to  that  question  that  existed  in 
1850.  We  found  also,  Mr.  Chairman,  that  it  was  necessary  for  us  to  save  the  white 
vote  of  the  State  of  Virginia.  We  listened  to  our  friends  from  beyond  the  mountains. 
We  heard  them  tell  us  that  the  grandfather  clause  would  not  save  all  their  people.  We 
had  to  recognize  their  claim  upon  our  patriotic  consideraton.  Whenever  the  question 
of  the  sacrifice  of  the  white  votes  of  Virginia  came  before  the  committee,  the  com- 
mittee wheeled  into  line  and  determined  that  none  of  the  white  people  should  be 
sacrificed  if  it  v/as  possible  to  help  it;  and  whenever  we  marched  up  against  the 
probability  of  white  disfranchisement,  whenever  we  came  face  to  face  with  that 
obstacle,  we  retraced  our  steps  and  tried  to  find  some  solution  which  would  not  have 
that  result.  I  remember  the  patriotic  stand  taken  by  the  gentleman  from  Russell.  T 
remember  his  saying  to  us  that  he  was  willing  to  do  everything  that  he  could  to  help 
us  in  our  section,  but  that  he  came  to  this  Convention  with  a  mandate  from  his  peo- 
ple that  this  suffrage  of  the  white  man  should  not  be  interfered  with;  and,  while 
he  was  willing  to  make  some  sacrifices  even  in  that  direction,  his  position  before  t^^e 
committee  was  so  strong  and  so  generous,  that  every  man  upon  it  determined  to  do 
everything  that  was  possible  to  save  his  people.  And  we  found  from  him  and  we 
found  from  others  that  what  is  known  as  the  grandfather  clause  would  not  have 
that  result.  But  we  found  more  than  that.  We  found  that  there  were  at  least  two 
cities  in  the  State  of  Virginia  that  had  been  founded — had  come  into  being — since 
the  war;  that  the  population  of  these  cities  was  largely  newcomers  to  the  State  of 
Virginia;  that  in  these  cities — in  both  Roanoke  and  Newport  News — the  large  part 
of  the  population  of  whites  had  no  relation  to  the  war  by  birth,  inheritance  or  other- 
wise, and  that  a  property  qualification,  with  the  exception  of  the  soldier  and  his 
descendants,  would  have  the  effect  of  practically  disfranchising  the  largest  portion 
of  the  present  voting  population  of  those  cities.  We  found  the  same  thing  true,  but 
not  to  the  same  extent,  in  the  city  of  Richmond  and  the  city  of  Norfolk,  we  found  it 
true  in  every  growing  section  of  this  State;  and  we  found  that  property  as  a  test 
would  have  to  be  abandoned  or  a  large  part  of  the  white  suffrage  of  Virginia  would 
have  to  be  destroyed.    But  we  found  more  than  that. 

We  found  that  such  a  standard,  such  a  test  of  suffrage  as  the  one  I  am  now 
discussing,  would  stand  as  an  impediment  to  newcomers  that  might  seek  to  make 
their  homes  among  us,  to  the  men  who  could  bring  to  us  only  their  labor  and  their 
Industry,  who  might,  if  they  could,  come  here  to  cultivate  our  fields,  to  develop  our 
mines,  to  help  us  in  the  great  work  of  life;  that  such  men  as  these  might  be  kept 
away  if  we  have  here  a  system  of  suffrage  which  would  prevent  them  from  assuming 
the  high  obligations  and  privileges  of  citizenship.  In  this  respect,  and  if  the  test  of 
suffrage  were  property,  the  very  thing  itself  would  stand  as  an  impediment  to  the  progress 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIKGIXIA.  2971 

of  the  state.  Under  these  crcumstances,  Mr.  Chairman,  it  is  not  to  be  wondered  at 
that  this  committee,  anxious  to  do  equal  and  exact  justice  to  all  the  citizens  of  the 
State,  anxious  to  throw  no  obstacle  in  the  way  of  its  growth,  anxious  to  promote  in 
every  way  its  development  and  prosperity,  could  not  feel  itself  justified  in  bringing  in 
and  recommending  the  automatic  test  of  property  as  a  basis  of  suffrage,  even  with  the 
exemption  created  by  the  soldier-and-his-descendant  clause.  These,  gentlemen,  are 
the  considerations  which  prevented  an  agreement  upon  property.  These  are  the  con- 
siderations which  prevented  us  from  coming  before  you  and  presenting  that  as  a 
test  of  suffrage.  They  were  satisfactory  to  the  minds  of  the  Committee,  and  it  was 
absolutely  necessa.ry  therefore,  in  its  opinion,  to  eliminate  property  as  one  of  the 
possible  solutions  of  the  question. 

Then  we  took  up,  Mr.  Chairman,  the  question  of  the  classification  of  the  people. 
We  thought  we  could  properly  divide  them  into  the  property-holder,  who  could  be 
allowed  to  vote  as  one  class,  and  the  man  that  contributed  to  the  State  in  the  shape 
a  license  contribution  as  another  class;  the  mechanic  and  the  skilled  laborer,  the 
salesman  and  the  clerk  as  the  third,  thus  including  everybody  in  the  State  of  Vir- 
ginia, except  the  manual  laborer.  It  was  thought  that  speaking  generally  of  the  class, 
the  manual  laborer  of  the  State  of  Virginia  is  the  black  man  whom  we  want  to 
exclude;  but  the  representatives  of  the  people  from  all  over  the  section  beyond  the 
mountains  and  in  the  valleys,  told  us  that  the  largest  porton  of  their  population,  who 
are  manual  laborers,  are  white  men.  And,  true  to  the  principle  of  saving  the  white 
man's  suffrage,  that  proposition  had  to  be  abandoned.  Then  another  class  was  sug- 
gested to  add  to  that,  namely;  the  laborer  employed  for  a  designated  time  who  should 
have  the  additional  test  of  understanding  the  general  nature  of  the  duties  of  the 
various  officers  for  whom  he  might  be  entitled  to  vote.  But  that  classification  was 
considered  objectionable  as  drawing  an  invidious  distinction  between  a  skilled  laborer, 
mechanic  and  artisan  and  the  farm  laborer  of  the  State,  and  putting  the  former  on 
a  higher  plane;  and  that  had  to  be  abandoned.  And  so  we  were  brought  dovm  to 
these  two  things —  property  gone,  classification  gone — the  tv\^o  things  that  we  had  to 
consider  were  education  and  understanding.  The  whole  field  of  expedients  had  been 
searched  and  every  possibility  examined,  and  these  two  possibilities  alone  remained. 
What  was  the  controlling  principle,  what  was  the  dominant  idea  potential  with  the 
men  on  whom  this  problem  rested  most  especially.  It  was — no  matter  what  might 
have  been  their  previous  opposition  to  a  plan,  no  matter  how  much  or  how  long  they 
might  have  fought  it — it  was  to  accept  the  one  thing  of  these  two  which  would  prove 
an  efficient  remedy  for  their  trouble.  They  believe  that  one  thing  to  be  "  understand- 
ing "  in  the  way  it  is  put  in  this  majority  report.  They  rejected  education  for  the 
reasons  that  I  have  argued  elaborately  before  this  conference.  They  saw  that  educa- 
tion merely  in  the  way  that  it  is  ordinarily  understood  (the  reading  and  writing  test) 
was  not  only  ineffectual  to-day,  but  that  it  was  a  disappearing  test  and  would  soon 
be  gone  forever  as  an  obstacle  between  the  negro  and  the  ballot  box.  And  so.  ready 
to  surrender  anything  for  the  deliverance  of  their  people,  and  considering  this  to  be 
the  opportunity  for  their  deliverance,  they  determined  to  turn  from  personal  preference 
and  predilection,  and  to  present  to  this  Convention  as  their  solution  of  the  problem 
the  only  efficient  thing  that  was  left  to  them. 

And  so  they  have  presented  an  article  here,  Mr.  Chairman,  in  which  they  have 
allov/ed  the  soldier  to  vote  without  the  poll-tax,  without  being  challenged  on  his  way 
to  the  ballot-box  or  to  the  registration-book.  They  have  also  considered  that  there  Is 
another  class  that  can  safely  be  entrusted  with  the  suffrage,  and  that  is  the  man  who 
contributes  from  his  means  to  the  maintenance  of  his  State;  and  they  have  put  the 
test  for  this  class  at  the  low  figure  of  $1.00  per  annum  on  property  owned  by  and 
assessed  against  him  or  his  vnie.  They  present  to  you  as  a  sound  principle,  that  the 
man  who  is  thus  tied  to  the  soil  of  Virginia  is  a  safe  man  to  have  a  voice  in  its  destiny. 
While  there  are  a  few  negroes  that  will  come  in  under  that  test,  they  not  sufficiently 


3972  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

numerous  to  be  a  menace  to  the  welfare  of  the  State.  And,  then,  in  order  to  bring 
in  every  other  worthy  citizen  of  the  State,  they  have  recommended  that,  in  addition  to 
the  foregoing  classes,  any  man  shall  have  the  right  to  vote,  who  has,  for  at  least  three 
months  during  the  preceding  twelve,  been  engaged  in  any  useful  and  lawful  occupation, 
thus  giving  a  pledge  to  the  State  that  he  is  neither  a  vagant  nor  a  shiftless  person, 
and  who,  in  addition,  has  a  sufficient  conception  of  the  duties  of  citizenship  to  be  able 
to  understand  the  general  nature  of  the  duties  of  the  officers  for  whom  he  may  be 
entitled  to  vote.  Such  a  man  is  a  worthy  participant  in  the  suffrage.  The  committee 
isliot  blind  to  the  fact  that  this  is  not  an  ideal  test.  The  committee  does  not  pretend 
that  it  has  brought  here  to  you  a  solution  such  as  will  meet  their  own  highest  aspi- 
ration, but  they  do  say  this,  that  after  four  months  of  earnest  and  patriotic  considera- 
tion, they  have  brought  forv/ard  the  only  possible  efficient  remedy  for  their  troubles 
in  this  proposition  which  they  submit. 

Let  us  consider  this  test  for  a  moment.  In  the  first  place,  Mr.  Chairman,  we 
submit  that  this  test  is  efficient  to  do  this  work.  It  is  alternative  with  nothing  in 
the  plan  that  will  admit  the  negro  vote  to  any  alarming  or  menacing  extent.  The  two 
classes  with  which  it  is  an  alternative  are  the  soldier  class  and  the  property-holding 
class,  and  through  neither  of  these  gateways  will  any  large  number  of  negroes  ever  be 
able  to  approach  the  ballot-box.  So,  that  if  any  considerable  number  of  negroes  come 
into  the  suffrage,  it  must  be  through  this  understanding  clause. 

Now,  will  it  stop  them?  That  is  the  first  question  which  we  ought,  in  justice,  to 
consider.  At  the  outset,  gentlemen,  you  have  the  guarantee  on  that  question,  which 
comes  from  the  unanimous  approval  of  nearly  every  member  of  this  committee  who 
is  in  the  touch  with  the  problem,.  When  you  examine  the  names  that  are  signed  to 
this  majority  report,  you  will  see  who  the  men  are  that  giving  you  their  assurance 
as  to  the  efficiency  of  this  plan,  and  that  they  are  the  ones  that  come  from  the  parts 
of  this  State  where  the  problem  is  the  sorest  and  the  trouble  is  greatest. 

But  that  is  not  the  only  reason  for  believing  that  it  will  be  efficient.  We  think 
that  it  will  be  efficient  because  we  do  not  believe  that  the  negro  can  stand  this 
examination.  We  think  it  is  a  vastly  different  question  from  his  reading  and  writing. 
We  believe  that  the  negro  greatly  differs  in  the  matter  of  understanding  from  what 
he  is  in  the  matter  of  the  acquisition  of  knowledge.  Dr.  J.  T.  Searcy,  in  an  address 
before  the  Alabama  Educational  Association  says: 

In  the  acquiring  department,  as  exhibited  on  the  plantations  and  in  the  schools, 
negroes  are  very  apt  up  to  a  certain  age — that  is,  when  they  begin  to  reach  adult  life. 
In  the  pla7/s  of  childhood,  and  in  the  acquisitions  of  the  primary  schools,  the  negro 
children  show  abilities  which  compare  very  favorably,  and.  taken  as -criteria  of  mental 
abilities  to  come,  they  are  often  misleading.  The  negro  children  who  show  some 
acquiring  abilities  in  childhood,  fall  further  and  further  behind,  as  a  rule,  as  the 
activities  incident  to  adult  life  come  into  play.  They  fall  behind  then  in  acquiring 
ability,  further  behind  in  judgment  and  reason,  and  still  further  behind  in  tenacity  of 
purpose  and  decision  of  character. 

But  it  would  not  be  frank  in  me,  Mr.  Chairman,  if  I  did  not  say  that  I  do  not 
expect  an  understanding  clause  to  be  administered  with  any  degree  of  friendship  by 
the  white  man  to  the  suffrage  of  the  black  man.  I  expect  the  examination  with  which 
the  black  man  will  be  confronted,  to  be  inspired  by  the  same  spirit  that  inspires  every 
man  upon  this  floor  and  in  this  convention.  I  would  not  expect  an  impartial  adminis- 
tration of  the  clause. 

I  would  not  expect  for  the  white  man  a  rigid  examination.  The  people  of  Vir- 
ginia do  not  stand  impartially  between  the  suffrage  of  the  white  man  and  the  suffrage 
of  the  black  man.  If  they  did,  this  Convention  would  not  be  assembled  upon  this 
floor.  If  they  did,  the  uppermost  thoughts  in  the  hearts  of  every  man  within  the 
sound  of  my  voice  would  not  be  to  find  a  way  of  disfranchising  the  black  man  and 
enfranchising   the  white   man.    We   do   not  come   here   prompted   by  an  impartial 


DEBATES  OF  THE  COXSTITUTIOX AL  COXVEXTIOX  OT  VIKGIXIA. 


purpose  in  reference  to  negro  suffrage.  We  come  here  to  sweep  the  field  of  exped- 
ients for  the  purpose  of  finding  some  constitutional  method  of  ridding  ourselves  of  it 
forever:  and  we  have  the  approval  of  the  Supreme  Court  of  the  United  States  in 
making  that  effort.  When,  in  the  Williams  case  going  up  from  Mississippi,  the  point 
was  made  against  the  constitutionality  of  the  Mississippi  suffrage  law,  that  the 
Supreme  Court  of  that  State  had  said,  as  to  the  purpose  of  the  framers  of  the 
suffrage  plan,  that  "  within  the  field  of  premissible  action,  under  the  limitations 
imposed  by  the  Federal  Constitution,  the  Convention  swept  the  field  oi  expedients  to 
obstruct  the  exercise  of  suffrage  by  the  negro  race,"  what  did  the  United  State 
Supreme  Court  reply?    It  was  this: 

If  v,-eakness  were  to  be  taken  advantage  of.  it  was  to  be  done  within  the  field  of 
permissible  action  under  the  limitations  imposed  by  the  Federal  Constitution. 

So,  in  that  high  tribunal,  it  was  said  that,  within  the  limitations  of  the  Federal 
Constitution,  it  is  permissible  for  this  people  to  search  for  expedients  to  exclude  the 
negro  race.  If.  then,  a  rigid  examination  permitted  by  the  Constitution  excluded  the 
negro;  then,  in  law.  he  is  excluded  by  virtue  of  his  failure  to  attain  a  cert-ain  standard, 
and  not  for  the  reason  that  he  is  a  negro;  and,  therefore,  the  law  itself  is  constitutional. 
But,  again.  I  expect  this  clause  to  be  efficient,  because  it  will  act  "'in  terrorem"  upon 
the  negro  race.  They  believe  that  they  will  ha^-e  a  hostile  examination  put  upon  them 
by  the  white  man.  and  they  believe  that  that  will  be  a  preventive  to  their  exei'ci  ■-'■.g 
the  right  of  suff'rage,  and  they  will  not  apply  for  registration.  They  will  know  that 
they  first  have  to  pass  an  examination;  that  then  they  have  to  make  out  their  appli- 
cation for  registration  in  their  own  handvrriting;  that  then  they  have  to  make  out  theii 
ballot  without  assistance;  and  that  then  they  have  to  pay  a  capitation  tax.  These 
impediments  will  be  too  great  for  the  negro,  and  he  will  find  himself,  as  a  practical 
question,  excluded  from  the  suffrage.  But,  suppose,  Mr.  Chairman,  that  he  does  not 
want  to  be  excluded,  and  that  he  is  improperly  excluded  in  any  individual  instance; 
then  the  machinery  established  here,  by  this  very  Constitution,  is  sufficient  for  his 
protection.  If  he  in  reality  possesses  the  necessary-  qualifications,  there  is  no  power 
under  this  Constitution  to  reject  him,  for  the  reason  that  right  here  is  given  to  him 
by  virtue  of  the  Constitution  itself,  an  appeal  to  the  Judge  of  the  Circuit  Court,  who. 
if  he  is  wronged  by  the  registration  officer,  can  at  once  correct  the  wrong:  for  the 
negro,  as  well  as  for  the  white  man.'  We  believe  that  all  this  will  be  an  effective 
impediment  in  the  way  of  the  negro,  because  his  tenacity  of  purpose  will  not  be  suffi- 
cient to  bring  him  into  the  suffrage  as  a  race.  But  there  is,  at  the  same  time  every 
opportunity  provided  by  the  Constitution  itself  for  his  absolute  protection  a?  an 
individual  from  any  wrong  against  his  legal  and  constitutional  rights. 

And  again,  we  think.  Z'-Ir.  Chairman,  that  this  clause  will  not  exclude  any  worthy 
white  citizen  of  this  Commonwealth  from  the  suffrage;  for  the  white  man  is  friendly 
to  the  white  man's  suffrage;  and  the  white  man  will  find  a  friendly  examiner  when  lie 
goes  to  stand  this  examination.  We  believe,  in  addition  to  that,  that,  if  it  is  not  so, 
that  here  stands  the  Circuit  Jugdge,  with  his  chambers  always  open,  to  give  the  white 
man  the  right  which  might  have  been  improperly  denied  him  by  the  registration 
officer. 

But  that  is  not  all.  We  have  the  minority  of  this  committee  agreeing  with  the 
majority  that  this  provision  will  not  exclude  the  white  man  from  the  ballot-box.  We 
have  the  representatives  of  what  may  be  denominated  as  the  white  sections  of  this 
State,  saying  to  the  Convention  that  this  provision  is  adequate  for  the  protection  of 
the  white  man.  This  is  evident  from  the  fact  that  the  minority  proposition  also 
includes  an  understanding  clause.  They  let  in  all  the  members  of  the  white  race 
that  can  read  and  write,  by  virtue  of  their  alternative  clause.  They  say  all  men  shall 
come  into  this  suft'rage  who  can  read  and  write,  or  vrho  can  understand  and  explain 
the  Constitution  when  it  is  read  to  them.  The  understanding  clause  is  not  intended 
as  a  disfranchiser  of  anybody  in  the  minority  plan. 


2974 


DEBATES  OF  THE  COXSTITUTIOJn' AL  CONVENTION  OF  VIRGINIA. 


It  IS  intended  to  open  to  the  illiterate  white  men  of  Virginia  an  avenue  to  the 
ballot-box.  it  is  intended  to  let  into  the  suffrage  the  illiterate  white  men 
whom  these  gentlemen  of  the  minority  more  especially  represent,  as  they 
come  most  largely  from  their  sections  of  the  State,  and  when  these 
gentlemen  with  the  pledge  upon  their  lips  that  they  will  not  disfranchise 
their  white  constituents,  come  before  you  and  recommend  their  plan  as  a  solution  of 
ihe  problem,  they  say  to  you  that  the  understanding  clause  is  the  place  through  which 
Illiterate  white  men  must  approach  the  ballot-box,  if  that  protects  the  white  man  in 
the  minority  plan,  then  the  understanding  clause  in  the  majority  plan  protects  him 
also,  and  equally  as  well.  This  conclusion  is  not  affected  by  the  fact  that  the  minority 
plan  has  the  understanding  clause  only  for  two  years,  for  the  reason  that  within 
those  two  years  they  expect  all  the  present  white  voters  of  the  State  of  Virginia  to 
be  put  upon  the  registration  books  again.  This  is  what  is  the  meaning  in  the 
minority  plan  of  his  undersanding  clause— it  means  that  the  whole  white  voting  popu- 
lation of  the  State  of  Virginia  is  to  walk  into  this  suffrage,  either  through  the  educa- 
tional test  or  through  the  understanding  clause;  and  my  friends  expect  to  go  back  to 
their  constituents  and  to  justify  their  action  towards  the  white  illiterate  voters  of 
their  counties  and  cities  by  the  fact  that  they  have  provided  this  gateway  to  the 
suffrage  for  them  through  the  understanding  clause.  They  have  demanded  that  under- 
standing clause  of  this  Convention  and  of  this  committee,  for  the  purpose  of  protect- 
ing their  white  men.  We  concede  it  to  them,.  We  say  v/e  are  hand  in  hand  with  you 
in  the  purpose  of  bringing  your  white  men  to  the  polls,  but,  at  the  same  time,  we  say, 
forget  not,  gentlemen,  the  problem  that  is  upon  us,  and  concede  the  same  thing  to  us 
for  the  purpose  of  excluding  our  black  man  from  the  polls. 

The  difference  between  the  minority  and  majority  plan  is  not  one  of  principle, 
because  the  minority  have  endorsed  as  efficient  and  proper  an  understanding  clause 
for  two  years — they  have  endorsed  it  as  efficient  and  proper  for  the  purpose  of  saving 
their  own  people;  they  say  it  must  be  left  as  a  part  of  the  suffrage  plan,  so  long  as 
the  exigencies  of  their  people  in  the  mountains  and  in  the  valleys  require.  We  say 
you  shall  have  it.  We  say  we  will  not  stand  in  the  way  of  your  people  at  the  polls; 
but  we  ask  in  return  this  boon;  we  ask  in  return  that  you  v/ill  let  us  keep  it  for  the 
purpose  of  bringing  salvation  to  our  people.  You  endorse  the  principle;  you  are  ready 
to  receive  the  goods;  why  stop  short  of  the  salvation  of  the  suffering  portion  of  the 
State  of  Virginia?  I  have  attempted  to  show  to  you  that,  inasmuch  as  this  is  in 
the  alternative,  it  seems  nothing  as  an  impediment  to  the  ballot-box,  except  education, 
because  one  of  the  alternatives  is  education  alone.  The  educated  negro  can  always 
get  in  through  that  gap.  You  want  to  get  in  the  uneducated  white  man,  and  demand 
the  understanding  clause.  We  say  that  the  negro  does  not  possess  the  necessary 
understanding  of  these  matters,  and  if  you  give  it  to  us  vv^e  will  keep  our  negroes  out 
by  virtue  of  it;  and  you  decline  to  let  us  have  it.  Is  there  any  fairness  or  justice  in 
that  position?  By  it  in  your  bill  you  enfranchise  everybody  that  is  white;  you  dis- 
franchise nobody  that  is  black.  The  meaning  of  this  Convention  is  that  the  great  sore 
upon  the  body  politic  is  the  fact  that  the  black  man  possesses  the  suffrage;  and,  if  you 
are  to  do  nothing  in  the  way  of  throwing  an  impediment  in  his  way,  why  is  this  Con- 
vention assembled?  Your  white  men  are  voting  now.  If  you  are  not  to  disfranchise 
our  black  men,  why  are  we  here?  You  need  do  nothing  to  enfranchise  your  white 
men.  We  grant  to  you  in  our  plan  everything  you  say  is  efficient  for  the  purpose  of 
re-enfranchising  your  white  men.  Why  not  put  something  there  that  will  be  sufficient 
for  us  and  for  our  salvation?  It  is,  gentlemen,  a  difference  only  in  degree.  It  is  a 
difference  only  in  time  of  duration.  Gentlemen,  that  difference  in  degree  and  that 
difference  in  time,  is  all  the  difference  between  a  remedy  and  what  is  not  a  remedy. 
In  two  years  from  the  time  of  the  adoption  of  your  plan,  there  will  be  nothing  between 
the  negro  and  the  ballot-box,  except  merely  the  requirement  as  to  reading  and  writing. 
There  is  nothing  to-day  between  the  negro  and  the  ballot-box,  according  to  your  plan, 
except  reading  and  writing.    That  we  tell  you  does  not  keep  him  away.    We  ask  you 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3975 


to  strengthen  this;  we  ask  you  to  give  us  another  impediment.  We  tell  you  what 
we  will  take.  We  do  not  demand  property,  though  we  in  the  East  are  willing  to  con- 
cede it,  because  we  will  concede  anything  for  the  freedom  and  emancipation  of  our 
people.  We  will  not  ask  property  of  you,  because  we  know  it  will  bear  hard  upon  your 
people  beyond  the  mountain.  We  will  not  ask  the  classification  idea  of  you,  because 
you  tell  us  it  will  bear  hard  upon  your  people  beyond  the  mountains. 

But  we  ask  something — we  ask  you  to  strengthen  your  plan;  we  ask  you  to  give 
us  something  in  addition,  and  something  that  will  be  a  disqualifler  for  suffrage.  You 
tell  us  that  you  will  take  the  principle  of  the  "understanding  clause"  for  your  own 
benefit,  but  you  deny  it  to  us  for  our  salvation.  Is  that  just  and  brotherly,  gentlemen 
of  the  conference.  Is  that  a  recognition  by  you  in  a  fraternal  spirit  of  the  burden 
that  is  upon  us?  I  ask  you  to  pause  and  to  think  in  your  hearts  of  what  you  are  doing 
to  this  people  east  of  the  Blue  Ridge  Mountains.  They  want  something  to  come  out 
of  this  Convention.  They  are  making  to  you  a  Macedonian  cry  for  help.  Will  you 
hear  it  or  will  you  remain  deaf  to  their  entreaties?  Why  do  you  reject  the  under- 
standing prerequisite  after  two  years?  Do  you  consider  it  fraudulent?  If  so,  why 
do  you  adopt  it  for  two  years?  How  can  you  defend  your  position  when  you  go  before 
the  people  of  Virginia  stamping  "fraudulent'  upon  your  own  device?  How  can  you 
plead  guilty  to  that  charge  and  protect  j^ourselves  in  debates  on  this  quetion?  Hov/ 
can  you  ask  it  as  a  temporary  expedient,  and  then  throw  it  away,  because  you  say  it 
is  fraudulent?  Rise  up  and  defend  the  morality  of  that  proposition  gentlemen,  by 
whatever  argument  you  can!  You  plead  guilty  to  the  charge;  can  you  defend  it  after 
your  plea  of  guilty?  In  which  attitude  will  you  be  worse  off  before  the  people  of  this 
State,  in  demanding  and  endorsing  that  principle  for  the  purpose  of  getting  what  you 
want  and  in  the  same  breath  branding  it  as  fraudulent,  and  casting  it  away  at  the 
end  of  two  years,  or  in  getting  up  before  the  people  and  saying  that  w^e  have  put  this 
in  our  Constitution  as  a  just,  sound,  and  righteous  principle  for  the  purpose  of  emanci- 
pating the  white  race  of  the  State  of  Virginia  now  and  forever!  Which  is  the  greatest 
and  strongest  position? — to  use  it  as  long  as  you  find  it  convenient  and  then  to  brand 
it  as  fraud  and  cast  it  away  or  to  stand  up  and  say  to  all  the  world  that,  under  the 
curse  of  the  Fifteenth  amendment,  in  this  only  could  we  find  the  way  to  emancipate 
the  white  people  of  the  State,  and  we  justify  it  on  the  ground  that  it  is  sound  in  prin- 
ciple and  is  necessary  for  that  high  purpose.  Can  you  say  to  yourselves,  to  your  own 
consciences,  and  in  your  own  hearts  that  this  thing  is  just  and  right  for  the  purpose 
of  bringing  into  the  ballot-box  the  white  man — doing  what  is  necessary  for  your  own 
country,  and  not  just  and  right  for  the  purpose  of  doing  what  is  necessary  for  ours. 

But,  gentlemen  this  understanding  clause  is  not  the  horrible  thing  that  it  is 
painted  to  be. 

In  the  first  place,  it  liberates  the  ballot-box  in  Virginia;  under  it  there  is  no 
further  reason  or  opportunity  for  fraud  at  the  ballot-box  in  this  State. 

By  purging  your  electorate  and  making  it,  to  all  intents  and  purposes,  an  Anglo- 
Saxon  electorate,  you  liberate  the  honest  heart  of  the  people  of  Virginia  to  demand 
honesty  in  elections. 

Heretofore  they  had  to  listen,  with  more  or  less  toleration,  to  the  suggestion  that 
fraud  was  necessary  in  order  to  preserve  their  civilization;  but,  when  you  have  taken 
the  black  man  off  the  registration  book,  then  there  is  no  reason  why  the  pure  heart  of 
Virginia  (and  I  believe  that  in  hope,  in  aspiration,  and  in  purpose  it  is  still  pure), 
there  is  no  reason  any  longer  why  this  people  cannot  rise  up  in  its  majesty  and  in  its 
glory,  and  demand  absolute  purity  in  elections;  and  it  will  do  it.  Not  only  will  the 
people  demand  it,  but  in  this  very  article  of  the  Constitution  there  is  a  guarantee  that 
elections  shall  be  honest,  for  the  reason  that  the  article  goes  on  to  provide  that  here- 
after the  ballot-box  shall,  during  elections,  be  kept  in  public  view,  that  the  ballots 
shall  not  be  either  convassed  or  counted  in  secret,  and  that  the  Legislature  must  sup- 
plement this  article  by  everything  that  is  necessary  to  insure  the  freedom  and  purity 


2976 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


of  elections  in  this  State.  The  only  chance  for  honesty  in  elections  in  Virginia  is 
through  the  gateway  of  this  very  proposition.  That  is  the  only  way  of  removing  the 
negro  from  the  suffrage,  and  there  can  never  be  either  honesty  or  freedom  in  elections 
until  he  is  out  of  the  way.  It  is  either  thus  or  force,  and  all  that  force  implies.  The 
very  thing  that  we  are  asking  of  you  is  to  enable  our  people  in  the  black  belt  of  Vir- 
ginia to  be  able  to  realize  their  aspirations  in  favor  of  honesty  of  elections.  But, 
more  than  that.  Under  the  plan  of  the  majority  the  proper  administration  of  this 
clause  is  put  in  the  hands  of  this  Convention  during  all  of  the  time  that  it  will  be  in 
effective  operation,  in  active  operation.  Under  the  suggestion  that  the  majority 
makes,  you  by  ordinance  are  to  appoint  the  registration  boards  that  are  to  register  the 
whole  present  voting  population  of  the  State,  thus  enabling  you,  gentlemen,  to  choose 
the  men  who  will  pass  upon  the  qualification  of  the  voters  of  Virginia  during  all  the 
time  that  the  present  voting  population  is  in  process  of  registration. 

The  administration  of  the  law  will  thus  be,  during  all  that  time,  exactly  what  you 
want  it  to  be.  What  does  it  amount  to  to  leave  the  understanding  clause  in  the  Con- 
stitution after  that  time?  When  the  two  years  were  over,  during  which  you  are  to 
have  charge  of  this  registration,  when  the  two  years  during  which  the  understanding 
clause  is  to  be  in  active  operation  are  over,  then  there  will  be  nothing  left  to  do  in  the 
matter  of  registration  except  to  take  care  annually  as  the  years  come  of  the  annual 
increment  to  the  population.  Our  understanding  clause  will  be  at  work  during  the 
two  years  that  your  understanding  clause  is  in  operation;  and,  when  your  understand- 
ing clause  expires  by  limitation,  ours  will  have  expired  as  an  active  agency  by  reason 
of  the  fact  that  its  work  will  have  been  done  on  the  present  population.  What  then, 
in  our  judgment,  is  the  advantage  of  leaving  it  in  the  Constitution?  It  should  be 
retained  in  the  Constitution  as  an  impediment  to  the  objectionable  voter. 

But  there  is  another  consideration,  gentlemen,  which  is  controlling  in  this  matter; 
it  is  that,  inasmuch  as  the  ballot-box  will  have  been  set  free,  inasmuch  as  there  is  to 
be  honesty  hereafter,  by  reason  of  the  purpose  of  the  people  and  the  requirements  of 
the  Constitution,  in  all  elections,  then,  if  there  is  anything  objectionable  about  this 
clause,  that  objectionable  feature  is  transferred  from  the  ballot-box  to  the  registration 
book.  And  there  is  a  vast  difference  between  these  two  propositions.  Suppose  fraud 
to  be  perpetrated  in  the  election.  In  the  first  place,  it  is  secret,  because  the  man  on 
whom  it  is  perpetrated  never  knows  v/hen  he  loses  his  ballot;  it  goes  into  the  ballot- 
box,  and  what  becomes  of  his  special  ballot  is  something  that  no  man  can  ever  know. 
He  does  not  know  when  he  is  defrauded.  And,  in  the  second  place,  when  a  fraud  is 
committed  at  the  ballot-box,  its  result  is  immediate.  There  is  then,  no  adequate 
opportunity  for  its  corrrection.  The  voter  who  is  defrauded  at  the  ballot-box  does  not 
realize  it,  and  does  not  become  an  agency  for  its  detection,  its  punishment,  and  its 
rectification.  Being  immediate  in  its  character,  there  is  no  adequate  opportunity  for 
its  correction.  But,  suppose,  on  the  other  hand,  that  a  fraud  is  committed  at  the 
registration  (it  is  proposed  to  make  that  registration  at  least  four  months  before  the 
flection),  then  the  man  who  is  denied  registration  knows  it  at  the  very  minute  and 
on  the  very  spot.  He  knows  then  and  there  that  he  is  wronged;  and,  under  the 
majority  plan,  we  throw  open  the  courts  of  this  State  and  put  at  his  command  the 
poYvers  of  this  Commonwealth  for  its  correction  in  time  for  him  to  enjoy  and  to 
ezerciBe  the  right  of  suffrage.  Where  then  is  the  opportunity  for  the  perpetration  of 
fraud  cr  for  the  doing  of  wrong  to  the  voter  in  the  registration?^  If  any  wrong  is 
done  to  him  then,  the  thing  is  done  to  him  in  his  very  teeth  and  with  his  eyes  open; 
he  is  served  with  notice  of  the  wrong  at  the  time  of  its  perpetration,  and  is  given  four 
months'  opportunity  and  the  services  of  the  judges  of  this  Commonwealth  for  his 
protection.  The  situation,  gentlemen,  is  a  vastly  different  situation  in  the  two  cases 
supposed.  Under  our  plan,  I  repeat  that  there  will  be  a  liberation  of  the  ballot-box,  and 
I  say  again,  that  there  will  be  liberation  of  the  honest  purpose  and  heart  of  Virginia 
10  demand  and  insure  purity  in  elections  now  and  forever. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYE^TIOX  OE  VIEGIXIA. 


29rr 


The  plan  of  the  majority  of  the  committee  makes,  in  addition  to  the  prerequisites 
of  residence  and  age,  the  payment  of  a  poll  tax  of  $1.50  for  theTprece'ding  year,  also 
a  prerequisite,  in  every  case  except  one,  and  that  is  in  the  case  of  any  person  who 
has  served  in  time  of  war  in  the  army  or  navy  of  the  United  States,  or  of  the  Con- 
federate States,  or  of  any  State  of  the  United  States. 

In  addition  to  that,  a  voter  must  comply  with  one  or  the  other  of  these  three 
requirements — namely,  he  must  have  served  in  time  of  war  in  the  army  or  navy  of 
the  United  States,  or  of  the  Confederate  States,  or  of  some  State  of  the  United  States, 
or,  as  an  alternative  to  that,  he  or  his  v/ife  must  be  sufficiently  indentified  with  the 
community  by  the  payment  of  as  much  as  $1  in  taxes  on  property  owned  by  and 
assessed  against  him  or  her,  the  theory  of  that  being  that  any  one  so  situated  towards 
the  community  has  in  that  very  fact  a  guarantee  of  his  substantial  interest  in  and 
identification  with  the  community;  or  as  a  further  alternative,  he  must  be  a  person 
who,  if  physically  able,  has  been  engaged  or  employed  in  some  lawful  occupation  for  at 
least  one-third  of  the  previous  twelve  months,  and  who  can  give  a  reasonable  explana- 
tion of  the  general  nature  of  the  duties  of  the  various  officers  for  whom  he  may  be 
entitled  at  any  time  to  vote.    The  voter  is  not  required  to  comply  with  all  of  these 
qualifications;  it  is  sufficient  if  he  complies  with  any  one  of  them;  and  these  qualifica- 
tions remain;  without  addition,  until  the  1st  day  of  January,  1904,  except  that  no  poll 
tax  is  payable  for  any  election  which  o<;curs  prior  to  the  1st  of  January,  1903.  The 
theory  of  this  last  exemption,  or  rather,  the  theory  on  which  the  payment  of  this  poll 
tax  is  postponed  for  one  year,  is  that  during  that  year  it  may  be  that  this  Constitution 
will  be  submitted  to  the  people,  or,  if  not,  there  w^ill,  of  course,  be  important  elections 
of  another  kind,  and,  inasmuch  as  the  payment  of  this  poll  tax  must  be  six  months  in 
advance,  it  cannot  be  expected  that  the  great  mass  of  the  Virginia  people  will  become 
educated  up  to  this  requirement  in  less  time  than  one  year  after  this  Constitution 
goes  into  effect.    It  was  therefore  considered  v/ise  that  the  time  for  the  beginning  of 
this  poll  tax  should  be  postponed  for  one  year.    All  persons  registered  prior  to 
January  1,  1904,  become  lifetime  voters.    After  the  1st  day  of  January,  1904,  there  is 
super-added  to  the  requirements  which  I  have  already  mentioned  the  requirement  that 
every  person  who  shall  register  after  that  time  shall  make  out  his  application  for 
registration  in  his  own  handwriting,  according  to  such  form  as  the  law  may  prescribe, 
and  shall  also  make  out  and  deposit  without  assistance  his  ballot  at  the  election.  By 
these  provisions  two  things  are  attempted  to  be  accomplished.    The  first  is  to  throw 
some  additional  obstacle  in  the  way  of  the  negro  who  shall  attempt  to  vote.  But 
the  second  and  most  important  is  that,  in  the  event  this  understanding  clause  were  to 
be  administered  by  a  party  hostile  to  white  domination  and  partial  to  negro  suffrage, 
there  vvould  still  remain  between  the  negro  and  the  ballot-box  every  impediment  which 
is  offered  at  first  by  the  minority  plan —  to-wit,  the  requirement  that  the  voter  shall 
make  out  his  application  for  registration  in  his  own  handwriting,  and  shall  make  out 
and  deposit  his  ballot  without  assistance.    A  suggestion  has  been  made  to  me,  Mr. 
Chairman,  by  one  of  the  Democratic  members  of  this  Convention,  about  which  I  have 
had  no  opportunity  to  confer  with  those  gentlemen  who  signed  the  majority  report, 
nor,  in  fact,  with  any  member  of  the  committee,  that  it  would  be  well  to  strengthen 
the  plan  after  the  1st  day  of  January,  1904,  by  adding  this  of  some  similar  provision: 
That  any  person  who  has  offered  for  registration  at  any  time  and  has  been  rejected 
shall  not  offer  again  for  a  prescribed  time,  say,  five  years.    The  committee  considered 
this  proposition  to  make  an  application  for  registration  and  a  ruling  upon  it  exclusive, 
as  well  as  inclusive,  for  all  time— that  is  to  say,  that  when  a  man  prior  to  the  1st  day 
of  January,  1904,  was  accepted  for  registration,  he  should  remain  a  lifetime  voter, 
and  if  he' was  refused  registration  he  should  be  forever  excluded  from  registration. 
The  first  part  of  that  proposition  was  accepted  by  the  committee,  and  is  contained  in 
this  report.    The  man,  who,  prior  to  the  1st  day  of  January,  1904,  does  register, 
remains  then  a  lifetime  voter,  unless  disqualified  by  some  other  requirement  of  the 


297i 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Constitution;  the  matter  of  his  registration  has  then  been  passed  upon  and  passed 
upon  finally  in  his  favor;  but,  as  to  making  it  exclusive  forever,  it  was  thought  that 
that  would  produce  dissatisfaction  among  those  men  who,  after  being  once  rejected, 
should  make  themselves  worthy  voters,  if  for  all  their  lives  they  were  disfranchised! 
even  though  they  had  acquired  the  necessary  qualifications.  But  the  suggestion  that 
1"  have  alluded  to  is  a  compromise  between  these  two  propositions.  It  strikes  me 
individually  with  favor.  As  I  say,  I  do  not  know  what  the  members  of  the  committee 
would  do  about  it,  but  it  is  at  least  worthy  of  our  best  consideration. 

It  serves  to  strengthen  this  plan  at  a  point  where  we  have  always  believed  it 
to  be  weak,  and  that  is,  if  the  administration  of  the  understanding  clause  should  get 
into  the  hands  of  a  party,  who  would  undertake  to  admit  negroes  to  the  suffrage  by 
wholesale  and  contrary  to  the  terms  of  the  requirements,  then  there  should  be  some- 
thing substantial  and  efficient  still  left  between  the  negro  and  the  ballot-box.  All 
that  there  would  be  interposed  between  the  negro  and  the  ballot-box  in  that  case, 
according  to  the  plan  as  written,  are  two  educational  requirements.  This  suggestion, 
which  comes  from,  one  of  the  gentlemen  sitting  now  within  my  hearing,  seems  to 
interpose  an  additional  obstacle,  and  strikes  me  personally  with  great  favor. 

Then  the  majority  plan  goes  on  and  provides  that  the  administration  of  this 
suffrage  clause  shall  be  in  the  hands  of  this  Convention  until  the  whole  of  the  present 
voting  population  of  Virginia  has  had  two  years  opportunity  to  be  registered.  In 
other  words,  it  provides  that  the  commissioners  of  registration  for  that  length  of  time 
shall  be  appointed  by  ordinance  of  this  convention,  thus  giving  to  the  Convention 
its  own  guarantee  as  to  the  propriety  and  the  justice  of  the  administration  of  this 
administrative  clause  until  all  the  people  of  Virginia,  who  are  now  voters,  have  had  an 
opportunity  to  register.  We  have  felt  that  the  motives  of  the  members  of  this  Conven- 
tion are  pure  and  high;  that  in  this  provision,  even  if  standing  alone,  there  would 
be  a  guarantee,  satisfactory  to  every  one  of  them,  that  his  ideal  of  the  method  of 
administering  this  provision  shall  be  carried  out,  for  it  would  be  administered  by 
men  of  his  own  selection. 

We  have  provided  further,  that,  if  any  man  is  refused  registration,  he  shall  have, 
by  virtue  of  the  Constitution,  an  immediate  appeal  to  the  purest  tribunal  that  exists 
in  the  State  of  Virginia — to-wit.,  the  courts  of  the  State,  and  that  the  appeal  shall 
lie,  nor  only  in  term  time,  but  in  vacation. 

And  we  have  provided  further  that  the  treasurer  of  each  county  shall  return  to 
the  Auditor  of  Public  Accounts  five  months  before  any  election  a  list  verified  by  his 
oath  of  the  persons  who  have  paid  the  capitation  tax  as  long  as  six  months  before  the 
election;  and  that  a  copy  of  that  certificate  shall  be  sent  to  the  judges  of  election, 
and  shall  be  proof  conclusive  as  to  the  payment  of  this  tax,  meanwhile  an  opportunity 
having  been  provided  for  the  tax-payer  to  have  this  list  corrected  if  he  should  have 
been  improperly  omitted.  And  then  we  have  provided  that  election  sliall  never  be 
in  secret  in  the  State  of  Virginia;  that  the  ballot-box  shall  remain  always,  during 
an  election,  in  sight  of  the  voter,  and  that  the  hand  of  no  judge  of  election  shall  invade 
it,  until  he  is  surrounded  by  witnesses,  and  that  all  votes  are  to  be  not  only  counted, 
but  canvassed  in  public. 

On  the  other  hand,  the  minority  plan  throws  between  the  ballot-box  and  the 
voter  the  capitation  tax  just  as  we  do,  except  that  it  is  by  them  made  cumulative; 
they  providing  that  the  payment  of  it  for  one  year  is  not  sufficient,  if  there  are  other 
years  in  arrear,  and  requiring  the  accumulations  of  the  capitation  tax  to  be  paid.  They 
let  the  first  two  classes  vote  just  as  we  do,  and  in  addition  establish  a  class  of  those 
who  can  read  any  article  of  the  Constitution  of  the  State  of  Virginia,  or  who  can 
understand  and  explain  it  when  read  to  them,  making  it  possible  from  the  start  for 
every  person  in  Virginia  who  can  read  to  become  a  voter,  and  adding  as  an  alternative 
an  understanding  clause,  to  remain  in  force  until  all  the  present  voters  in  Virginia 
have  had  an  opportunity  to  register.    This  opportunity  is  the  same  that  we  give  them. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


29T9 


but  ^^-e  safeguard  it  by  the  registration  to  be  made  under  the  authority  of  this  Con- 
vention itself,  in  which  respect  we  differ  from  the  minority  plan. 

I  have  discussed  before  you,  Mr.  Chairman  and  gentlemen,  whether  that  minority 
plan  is  sufficient.  I  shall  not  repeat  that  discussion,  but  there  was  one  item  of  the 
plan  to  which  I  have  heretofore  paid  no  attention,  and  that  is  the  matter  of  the  poll 
tax.  Many  members  of  the  committee,  Mr.  Chairman,  look  with  apprehension  upon 
this  requirement.  They  feel  that  it  is  impossible  to  forecast  the  result  of  it.  It  is 
no  longer  a  requirement  of  the  prepayment  of  a  poll  tax  up  to  the  day  of  election, 
but  the  poll  tax  must  be  paid  six  months  in  advance,  which  requires  the  payment  to 
be  made  before  any  of  the  enthusiasm  or  interest  in  the  individual  election  has  been 
aroused.  "^Tiether  that  will  strike  harder  on  the  white  suffrage  than  on  the  black  we 
do  not  know,  but  we  know  this,  that  there  is  danger  of  it,  and  we  believe  further 
that,  if  it  is  done,  and  the  prepayment  of  the  poll  tax  be  made  cumulative,  if  the  arrears 
of  the  poll  tax  are  piled  up  upon  the  white  men  of  the  State,  it  may  become  a  most 
serious  sore  upon  the  body  politic,  and  the  source  of  unending  agitation  and  unending 
dissatisfaction. 

We  know  further  that  it  is  characteristic  of  the  negro  race  to  value  his  suffrage 
in  a  different  way,  if  not  to  a  greater  extent,  than  the  white  man  regards  his.  The 
white  man  regards  his  suffrage  as  a  right;  the  negro  regards  his  suffrage  as  a  privi- 
lege; and  the  negro  will  do  a  great  deal  to  preserve  it  that  the  white  man  will  be 
listless  about.  Evidence  has  come  before  this  committee  from  various  portions  of  this 
Commonwealth  that  the  requirement  of  a  pell  tax  prerequisite  will  be,  at  best,  in  those 
communities  a  hardship  upon  the  white  race.  There  are  some  portions  of  the  State 
of  Virginia  in  which  ready  money  is  handled  to  a  larger  extent  by  the  negroes  than  by 
the  white  people.  The  negroes  are  the  small  wage-earners  of  the  country;  they  are 
the  people  that  in  many  communities  receive  the  cash.  They  are  section  hands  upon 
the  railroads;  they  are  day  laborers  upon  the  farms;  they  are  workers  in  the  fac- 
tories in  the  city;  they  are  people  who  have  ready  money  from  day  to  day;  and  the  report 
comes  to  us  from  large,  and  from  diversified,  sections  of  this  State  that  in  many  of 
these  communities  it  will  be  an  exceedingly  problematic  matter  as  to  whether  the  poll 
tax  will  not  strike  harder  upon  the  white  race  six  months  in  advance  than  it  will  upon 
the  negro. 

There  is  another  consideration  which  controls  us  to  a  certain  extent  in  our 
view  about  this  poll  tax,  and  it  is  that  the  negro  race  is  organized  from  one  end  of 
this  State  to  the  other  in  a  way  that  is  impossible  among  the  white  race.  They  are 
organized  everywhere  and  controlled  everywhere  through  the  power  of  their  church. 
You  can  give  notice  of  anything  that  is  to  happen  to-morrow  night  in  almost  any 
county  in  this  Commonwealth,  and  it  will  before  that  time,  be  known  from  one  end  of 
the  county  to  the  other  by  the  negroes.  They  can  communicate  with  each  other  almost 
by  telegraphy — wireless  telegraphy,  as  the  gentleman  from  Appomattox  suggests — and 
it  will  be  an  easy  thing,  when  the  negro  realizes  that  there  is  nothing  except  the  poll 
tax  between  him  and  the  ballot-box  for  the  churches,  to  organize  that  race  six  months 
in  advance,  and,  we  fear,  to  make  the  negroes  pay  the  poll  tax  in  larger  proportion  than 
the  white  people  will.  So  that  this  question  of  poll  tax  is  not  at  all  free  from  difficulty. 
The  committee  is  unanimonus  however  (with  the  exception  of  the  gentleman  from 
Pulaski,  who  makes  it  sufficient  as  to  the  present  voters  of  the  State),  in  declaring 
that  the  prepayment  of  a  poll  tax  alone  is  not  sufficient  to  solve  the  suffrage  problem. 
We  think  there  is  serious  objection  to  making  it  cumulative.  We  think  that  the  result 
is  problematic  upon  the  white  vote  of  using  it  at  all  six  months  in  advance,  and  we 
are  not  willing  to  depend  upon  that  and  that  alone,  for  the  reason  that  we  do  not 
know  where  it  will  strike  nor  what  its  effect  will  be;  but  we  know  this,  we  know  that 
it  has  been  in  force  in  the  State  of  Mississippi;  we  Imow  that  the  white  voters  in  that 
State  number  somewhere  from  130.000  to  150,000,  at  the  very  least,  and  we  know  that 
in  presidential  elections,  in  the  State  of  Mississippi,  it  is  impossible  to  get  more  than 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


59,000  to  the  polls.    We  feel  that  this  falling  off  in  the  vote  may  be  brought  about 
partly  at  least  by  this  poll  tax  requirement. 
Mr.  Portlock:    How  about  Tennessee? 

Mr.  Thorn:  I  don't  know  about  Tennessee.  I  have  tried  to  find  out,  but  can't 
get  the  information. 

Now,  gentlemen,  these  are  the  requirements  of  these  two  bills.  I  was  discussing 
last  night  at  the  hour  of  adjournment  the  understanding  clause  as  contained  in 
them.  I  had  called  the  attention  of  the  conference  to  the  fact  that  the  understanding 
clause,  as  contained  in  our  bill,  is  in  the  first  place,  efficient,  I  gave  the  reasons  and 
invited  attention  to  the  fact  that  this  conference  has  the  guarantee  implied  by  the 
signatures  of  those  members  of  the  Suffrage  Committee  who  come  from  the  sections 
most  nearly  interested  in  and  most  closely  affected  by  the  problem.  I 
then  called  attention  to  the  fact,  that  by  this  majority  report  the  ballot- 
box  is  liberated  from  fraud;  that  this  is  done  first  by  the  purification 
of  the  electorate  of  the  State;  that,  when  you  once  remove  the  negro  from  the  elec- 
torate of  the  State,  the  honest  heart  of  the  people  will  demand  honesty  in  elections. 
It  will  be  no  longer  cowed  by  the  necessity  to  preserve  their  civilization.  The  one 
and  the  only  thing  which  could  possibly  operate  to  make  the  people  of  Virginia  condone 
fraud  at  the  ballot-box  will  have  been  removed;  and  to  say  that  we  would  not  then 
have  honest  elections  would  be  to  question  the  honesty  of  purpose  and  the  honesty  of 
aspiration  of  our  people.  Honesty  in  elections  is  further  guaranteed  by  the  provisions 
of  this  bill  for  the  publicity  of  all  elections,  and  by  a  requirement  that  the  Legislature 
shall  pass  all  necessary  laws  to  carry  this  provision  into  effect. 

Mr.  R.  Walton  Moore:  How  do  you  contemplate  that  the  ignorant  voter  who 
registers  prior  to  January  1,  1904,  shall  be  assisted  in  preparing  his  ballot?  The  plan, 
if  I  understand,  does  not  touch  that  question.    I  want  to  ask  for  your  view. 

Mr.  Thorn:  The  plan,  I  think,  does  touch  it.  I  think  there  is  an  express  pro- 
vision on  the  subject;  but,  whether  it  does  or  not,  he  is  to  have  a  person  of  his  own 
selection. 

I  want  now  to  discuss  again  for  a  few  moments  the  vast  difference  that  there  is 
between  a  fraudulent  election  and  any  impropriety  or  partiality  possible  under  this 
law  in  the  matter  of  registration.  A  fraudulent  election,  as  I  attempt  then  to  show, 
has  this  inherent  vice,  so  far  as  discovery  is  concerned,  that  the  man  who  deposits  his 
ballot  does  not  know  whether  he  has  been  defrauded  or  not.  There  is  nothing  in 
the  conditions  which  surround  him  when  voting  to  give  him  notice  that  he  is  defrauded. 
Not  knowing  that  he  is  defrauded,  he  does  not  become  an  active  agent  for  the  pur- 
pose of  remedying  the  fraud;  whereas,  any  person  wronged  in  registration,  is  to  his 
face  denied  the  right  to  register,  and  knows  it  and  knows  it,  too,  long  enough  in 
advance  to  apply  the  remedy  of  an  appeal.  He  cannot  be  defrauded;  he  cannot  be 
defrauded  without  notice  and  knowledge. 

He  has  the  notice  served  upon  him  on  the  spot,  and,  when  it  is  served  upon  him, 
then  the  laws  of  this  State  throw  open  the  doors  of  its  courts  for  his  protection.  Now, 
in  that,  gentlemen,  is  a  vast  difference,  a  vast  distinction.  It  insures  to  every  man  a 
vote  if  he  wants  it,  and  if  he  is  worthy  of  it.  Whatever  in  the  way  of  obstacle  is 
thrown  in  his  way  is  thrown  in  it  so  far  in  advance  that  he  can  overcome  it  if  he  wants 
to,  and  that  fact  will  have  the  effect  of  enabling  the  people  of  this  State  to  see  that 
the  election  itself  shall  be  free  from  wrong.  It  will  enable  us  once  more  to  be  honest 
in  the  matter  of  elections,  and  will  remove  from  our  people  the  reproach,  as  well  as 
the  degradation,  of  these  fraudulent  practices,  whereas  under  the  plan  of  the  minority, 
that  can  never  be  accomplished.  The  plan  of  the  minority  condemns  our  people  to 
a  continuation  of  these  methods;  it  leaves  the  negro  in  politics  on  the  registration 
books  as  an  efficient  factor;  it  puts  69,000  of  him,  or  50  per  cent,  of  the  total  number, 
on  the  registration  books  the  morning  after  the  adoption  of  this  Constitution.  It  goes 
on  with  accelerated  speed,  and  puts  the  balance  of  him  on  the  registration  books 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA. 


.2981 


T^-ithin  ten  years;  and,  if  it  be  true  that  the  fact  of  the  negro's  presence  in  the  elec- 
torate is  a  sufficient  scarce-crow  to  the  people  in  Virginia  to  cause  them  to  engage 
in  and  to  defend  these  evil  practices,  then  that  condition  remains,  without  remedy 
under  the  minority  plan.  The  hope  that  we  entertain  for  fairness  of  elections  is  to 
get  rid  of  the  negro,  to  purify  the  electorate.  I  am  hopeless  of  it  if  he  remains  as  an 
efficient  factor  in  our  electorate  after  this  Convention  is  dissolved — 

Mr.  Hun  ton:    In  those  figures  you  leave  out  the  capitation  tax  entirely? 

Mr.  Thorn:    Yes,  sir. 

3,Ir.  Kunton:  What  per  cent,  of  that  vote  do  you  believe  the  capitation  tax  will 
take  off? 

Mr.  Thom:  Perhaps  about  the  same  proportion  of  the  negro  as  of  the  white; 
I  am  afraid  of  it. 

Mr.  Glass:  Could  I  interrupt  my  friend  to  ask  him  if  it  is  not  a  fact  that  there 
must  be  deducted  from  the  poll  tax  application,  amongst  the  whites,  every  person 
vrho  has  served  in  the  army  of  the  United  States  or  Confederate  States,  or  any  State 
of  the  Union. 

Mr.  Thom:  Yes,  but  there  are  very  few  of  them,  unfortunately.  There  are  prac- 
tically none  under  50  years  of  age.  If  the  consideration  suggsted  amounts  to  anything 
in  respect  to  the  comparative  numbers  of  the  whites  and  blacks  who  ma.Y  participate 
in  the  suffrage,  it  leaves  still  the  question  unsolved,  for  it  will  affect  merely  the 
matter  of  majorities.  It  does  not  remove  the  problem;  it  leaves  it  still  a  sore  upon  us. 
It  leaves  us  in  the  condition  that  whenever  a  man  steps  out  of  the  ranks  of  his  party, 
asserts  his  independence  and  his  manhood,  and  claims  the  right  to  think  and  to  act 
as  he  sees  best  upon  economic  questions  before  the  country — it  leaves  him  still  in 
the  position  where  he  can  be  pointed  at  by  the  power  and  forces  that  are  surrounding 
him,  and  told  to  get  back  into  the  ranks,  for  fear  that  the  vote  of  that  black  man  stand- 
ing over  there  will  assail  his  domestic  institutions.  There  never  has  been  a  time  in 
my  section  of  the  State,  I  don't  believe  there  has  ever  been  a  time  in  any  section  of 
the  State  within  thirty  j^ears,  when  there  has  been  a  possibility  of  political  independ- 
ence; and  no  people  can  be  great,  no  people  can  remain  good,  unless  there  is  absolute 
independence  of  thought  and  of  action  to  every  man  to  serve  God  and  his  county 
according  to  his  own  views  and  accordng  to  his  own  conscience,  I  saj'  no  people  can 
remain  great;  and  I  point  to  Virginia  and  ask,  what  has  become  of  her  greatness?  I 
sajr  no  people  can  remain  good;  and  I  point  to  Virginia  and  ask,  to  what  low  estate 
has  she  fallen  in  the  matter  of  frauds  in  elections?  I  ask  what  is  the  cause  of  it; 
and  I  find  it  in  this  verj-  fact  of  mixed  suffrage,  which  the  proposition  of  the  minority 
is  to  leave  still  upon  us  in  the  black  countr3\  Gentlemen,  my  plea  is  for  the  liberties 
of  my  people,  for  liberty  to  be  great,  and  for  liberty  to  be  good! 

I  desire  to  call  your  attention  to  another  thing,  and  that  is  to  the  fact,  that,  if 
there  is  anj^thing  objectionable  in  the  administraton  of  the  understanding  clause,  it 
lasts  as  long  and  it  extends  as  far  for  all  practical  purposes  under  the  minority  plan 
as  it  does  under  the  majority  plan.  It  lasts  until  the  present  electorate  of  the  State 
of  Virginia  is  enrolled  under  both  plans;  and,  while  then  it  ceases  under  the  minority 
plan,  its  work,  at  the  same  time,  ceases  as  an  active  factor  under  our  plan,  because 
after  the  present  electorate  is  once  more  registered,  it  will  as  continued  under  our 
plan,  operate  only  on  the  annual  increment  arising  from  persons  coming  of  age  and 
from  the  immigration  to  the  State.  Could  we  stop  it  after  two  years?  Could  we 
abandon  it  then?  If  we  did  ever3^  man  that  had  been  excluded  under  it  during  these 
two  years,  Vvould  make  a  mad  rush  and  get  into  the  suffrage  at  the  expiration  of  that 
time,  and  then  there  would  be  nothing  between  him  and  the  ballot-box  except  this 
slender  educational  provision  and  the  poll  tax.  We  are  obliged  to  keep  it.  We  are 
obliged  to  keep  it  in  order  that  it  may  operate  in  terrorem  for  the  future,  as  we  think 
it  will  have  been  efficient  in  the  past.  If  we  throw  it  away,  if  we  stop  it  at  the  expira- 
tion of  two  years,  why,  the  whole  scheme  will  crumble  into  dust,  the  whole  efficiency 


2dS2 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


of  the  plan  will  be  ruined,  the  whole  opportunity  of  liberating  this  people  will  be  gone. 
Ex  necessitate  rei  if  it  is  to  be  the  guardian  of  the  suffrage,  it  should  be  its  guardian 
not  only  for  two  years,  but  as  long  as  the  danger  to  it  remains.  There  is  but  one 
hope,  I  say,  there  is  but  one  hope  of  getting  rid  of  it,  and  that  is  the  returning  sense 
of  justice  of  the  American  people,  when  the  Fifteenth  amendment  will  be  repealed  and 
the  word  "white"  can  be  written  into  the  Constitution;  for  you,  gentlemen,  must 
remember  that  there  is  one  other  thing  on  which  this  committee  is  unanimous  about, 
and  that  is  that  there  can  be  no  plan  of  suffrage  that  is  not  based,  some  more  and 
some  less,  but  all  in  a  greater  or  less  degree,  on  some  administrative  expedient.  Gen- 
tlemen of  the  minority  come  before  you  with  an  administrative  expedient.  Gentlemen 
of  the  majority  come  before  you  with  an  administrative  expedient.  They  are  unani- 
mous in  bringing  it  to  you ;  they  differ  only  in  the  kind  they  bring.  We  bring  you  one 
which  we  label  as  efficient  to  save  our  people,  and  we  ask  you  this,  which  is  better 
for  the  hope  and  happiness  of  our  children — to  let  them  remain  in  the  filth  of  the 
present  election  methods,  or  to  take  this  administrative  clause  to  free  them  from  it? 

What  is  the  clause  we  present?  We  present  this  test  of  suffrage:  The  man  whO' 
votes  for  one  of  the  officers  of  this  State  shall  know,  in  a  general  way,  what  that 
ofl!icer  is  intended  to  do.  Is  he  or  is  he  not  a  proper  voter  if  he  does  not  know  that? 
What  is  required  of  a  man  authorized  to  choose  an  agent?  The  requirement  is  that 
the  man  shall  know  what  that  agent  has  to  do;  and,  if  he  does  not  know  what  the 
agent  has  to  do,  he  is  not  fit  to  choose  liim.  In  other  words,  this  understanding 
clause  puts  its  finger  directly  on  the  point  in  the  matter  of  suffrage.  It  saj^s  to  the 
voter,  do  you  know  what  the  man  has  to  do  that  you  say  shall  do  it  for  Virginia?  If 
you  do  not,  you  are  excluded  from  the  suffrage;  if  you  do,  you  are  admitted  to  the 
suffrage. 

Mr.  Portlock:  One  question  strikes  me  very  seriously.  It  is  how  far  any  man 
knows  the  duties  of  an  officer  for  which  he  is  voting,  and  how  far  this  provision  is 
intended  to  extend  in  that  direction;  how  far  even  the  candidate  himself  knows  the 
duties  of  his  place?  That  is  to  my  mind  a  very  serious  matter,  and  I  would  like  to 
have  you  consider  it. 

Mr.  Thorn:  If  they  do  not  both  know  in  a  general  way,  one  ought  not  to  be  a 
candidate  and  the  other  ought  not  to  choose  him.  It  is  not  intended  that  there  shall 
be,  any  minute  knowledge  about  the  question;  it  is  intended  that  the  voter  shall  have 
general  information,  reasonable  information,  as  to  the  general  nature  of  the  duties. 
For  Instance,  if  he  is  going  to  vote  for  the  clerk  of  a  court,  he  knows  generally  what 
the  nature  of  that  man's  duties  are.  If  he  is  going  to  vote  for  a  constable,  he  will  know 
generally  v/hat  those  duties  are;  but  it  is  not  intended  that  the  voter  shall  possess  a 
minute  knowledge  of  all  the  duties  of  the  office,  it  is  to  be  reasonable  knowledge  of 
the  general  nature  of  the  duties,  and  this  is  expressed  in  the  article. 

Mr.  Harrison:  I  would  like  to  ask  the  gentlemen  how  that  clause  protects  the 
white  vote.  Why  is  it  that  administrative  clause  cannot  be  turned  against  the  white 
vote  of  this  State? 

Mr.  Thorn:  There  are  two  reasons.  The  first  is,  the  men  who  administer  it  are 
white  men,  and  will  be  friendly  to  the  white  vote;  and  the  second  is,  that,  if  this  is 
not  true,  there  is  an  absolute  guarantee  that  men  holding  as  high  and  as  exalted  a 
position,  as  my  friend  who  asked  this  question,  Judge  of  the  Circuit  Court,  shall  be  at 
the  service  of  that  white  vote,  and  say  whether  he  had  been  improperly  excluded.  The 
clause  provides  that  the  circuit  judges  of  this  State  shall  at  the  call  of  that  white 
voter  say  whether  or  not  he  has  been  improperly  excluded. 

Mr.  Harrison:  I  would  like  to  ask  the  gentleman  if  he  thinks  the  judiciary  of  the 
State  ought  to  be  brought  into  that  matter  and  virtually  to  be  made  registrars  of  the 
State?    He  brings  the  judiciary  into  partisan  politics  of  the  State,  you  might  say. 

Mr.  Thom:  I  think  that  my  friend  signed  the  minority  report.  That  does  the 
same  thing. 

Mr.  Harrison:    That  is  temporary.    That  lasts  for  one  year;   but  there  is  a 


DEBATES  OF  THE  CON-STITUTIOXAL  CONVENTION  OF  VIRGINIA.  2983 

Clause  that  may  be  turned  against  the  white  voters  of  the  State,  and  by  continuing  it 
for  a  year  or  forever,  you  might  say,  you  bring  the  judiciary  virtually  into  partisan 
politics  of  the  State. 

Mr.  Thorn:  It  is  unfortunate  to  bring  the  judiciary  of  this  State  into  touch  with 
political  matters  at  all,  but  if  you  don't  do  that,  what  are  you  going  to  do?  Suppose 
you  alloY/  your  Governor  to  appoint  the  boards.  He  becomes  then  what  no  Governor 
will  want  to  be  and  what  the  people  of  Virginia  will  never  w^ant  their  Governor  to 
be — at  the  head  of  the  most  powerful  machine,  political  machine,  that  could  possibly 
be  established.  Suppose  you  leave  it  to  agents  appointed  by  the  Legislature,  then 
there  would  go  up  from  one  end  of  this  State  to  the  other  the  same  cry  against  a 
public  scandal  that  is  going  up  to-day  and  that  called  this  Convention  into  existence. 
There  is  nothing  else  to  do.  There  is  no  other  tribunal  to  decide  these  questions  but 
a  judicial  tribunal,  for  they  are  judicial  questions. 

Mr,  Hunton:  I  dishke  to  interrupt  you,  but  the  suggestion  of  my  friend  is  one 
of  the  horrors  to  my  mind;  you  answer  that  there  is  nothing  else,  if  one  that  makes 
us  pause.  Hasn't  there  been  a  suggestion  in  your  own  argument  that  might  possibly 
meet  it?  I  understand  from  your  argument  that  you  say  the  temporary  understanding 
clause  of  two  years  is  really  v/hat  does  the  work,  in  both  schemes,  and  that  the  neces- 
sity for  retaining  a  permanent  understanding  clause  was  because,  at  the  end  of  that 
two  years,  all  of  the  voters  who  had  been  excluded  under  it  would  pour  into  the  regis- 
tration, after  the  temporary  understanding  clause  passed  away.  That  was  your 
argument  just  now? 

Now,  you  have  also  said  that,  to  exclude  the  voter  for  five  years  irom  an  attempt 
to  register  again,  would  be  a  great  strengthening  to  this  plan.  Why  would  it  not  do 
to  make  the  re-election  at  registration  a  permanent  matter,  and  never  let  the  rejected 
applicant  apply  again,  relieve  the  judiciary  of  the  horrors  that  have  been  pointed  out 
by  my  friend?  It  seems  to  me  that  might  be  a  bridge  to  bring  together  these  differing 
members  of  this  committee  on  the  suffrage. 

Mr.  Daniel:  Do  you  mean  to  say  that  if  a  man  is  uneducated  to-day  that  he 
should  be  cut  off  for  life  from  ever  being  a  voter? 

Mr.  Hunton:  I  would  infinitely  rather  do  that  than  to  put  the  judiciary  of  the 
State  into  the  mire  of  election — 

Mr.  Green:  Hasn't  the  judiciary  been  in  it  ever  since  the  war?  Is  there  any 
State  in  the  world  where  the  judiciary  isn't  in  it? 

Mr.  Robertson:    We  have  pretty  tough  judges  on  the  bench  also. 

Mr.  Hunton:    I  don't  think  the  circuit  judges  have  been  in  it  altogether,  sir. 

Mr.  Thorn:  That  suggestion  made  by  my  friend  from  Fauquier  is  one  that  has 
received  very  earnest  attention  on  the  part  of  the  Committee  on  Suffrage.  It  has 
been  agitated  by  some,  it  has  been  thoroughly  considered,  and  it  has  been  rejected 
for  this  reason,  that  in  every  tv/enty  years  the  electorate  renev/s  itself  entirely,  and 
that  during  that  twenty  years  the  process  of  renewal  is  progressing  so  fast  that  you 
will  be  dealing  only  temporarily  with  the  problem,  even  if  you  prevent  those  who  have 
once  been  rejected  from  applying  again.  The  future  will  not  take  care  of  itself, 
because  the  electorate  is  constantly  changing,  and  is  changing  so  rapidly  that  in  a 
few  years  the  problem  will  not  be  to  purge  the  present  electorate,  but  to  keep  pure 
the  incoming  electorate 

Mr.  Flood:  I  would  like  to  ask  the  gentleman  if  the  idea  of  the  delegate  from 
Fauquier  was  carried  out,  if  there  would  not  be  some  tribunal  during  those  two  years 
to  which  the  voter  could  appeal,  and  if  the  only  tribunal  is  not  the  courts? 

Mr.  Hunton:    Still  it  would  be  temporary. 

Mr.  R.  Walton  Moore:  I  am  always  sorry  to  differ  from  my  friend  from  Fauquier, 
but,  if  his  suggestion  were  carried  out,  would  not  the  constitutionality  of  the  plan  be 
greatly  weakened. 

Mr.  Thorn:    I  don't  think  it  would  be  as  strong  a  plan  as  ours  from  a  constitu- 


2984  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

tional  standpoint.  But,  outside  of  that,  gentlemen,  even  if  this  be  objectionable,  even 
if  the  injection  of  the  judiciary  into  the  matter  is  objectionable  (and  I  think  it  is — 
T  have  never  thought  otherwise),  it  is  not  so  objectionable  to  me  as  a  continuation 
of  the  status  in  which  we  find  the  population  of  the  State  of  Virginia  to-day  and  the 
question  is  between  a  continuation  of  this  condition  and  permitting  the  courts  to 
review  the  decision  of  the  registration  officers.  Now,  which  will  you  take?  Which 
will  you  take?  Will  you  let  your  judiciary  decide  political  questions,  or  will  you  let 
your  children  grow  up  in  an  atmosphere  that  is  reeking  with  fraud  and  poisoning  their 
honest  natures  every  day  of  their  lives?  Will  you  take  the  chance  of  your  judiciary 
falling  somewhat  from  its  high  estate,  if  you  think  that  may  be  a  possibility,  or  will 
you  make  it  sure  that  not  only  the  judiciary,  but  the  whole  population  of  the  State 
of  Virginia,  shall  be  poisoned  and  made  fraudulent  forever?  Now  that  is  the  question. 
If  there  can  be  any  other  tribunal,  I  would  welcome  it. 

Mr.  Meredith:  I  am  groping  in  this  matter  for  light.  I  am  sorry  to  interrupt  you. 
I  would  likci  to  ask  you  whether  there  is  anything  in  this  suggestion  or  whether  it  was 
considered  by  your  committee,  to  get  rid  of  the  objectionable  feature  of  putting  an 
absolutely  permanent  understanding  clause  in  the  Constitution?  Would  it  be  feasible 
to  specify  that  it  should  last  for  a  certain  time,  and  then  let  the  Legislature  abolish  it, 
with  power  to  reimpose  it  if  necessary? 

Mr.  Thorn:  That  was  suggested,  but  it  would  always  leave  open  the  question  of 
the  control  of  the  I^egislature.  At  any  time  the  Legislature  mJght  in  a  few  years  be 
controlled  in  such  a  way  as  to  destroy  the  very  suffrage  restriction  which  we  are  not 
finding  it  essential  to  impose. 

Gentlemen,  the  solution  we  offer  is  in  itself  unobjectionable;  in  itself  it  is  ideal.  I 
wish  to  read  the  estim^ate  of  it  entertained  by  the  Now  York  Evening  Post:  "  The 
scheme  by  which  it  is  expected  to  keep  most  negroes  frora  the  ballot-box  (referring  to 
our  majority  plan)  is  the  provision  that  any  man  who  is  not  an  ex-soldier  or  a  tax- 
payer, in  order  to  vote,  must,  v/hen  he  offers  to  register,  be  a.ble  to  give  a  reasonable 
explanation  of  the  general  nature  of  the  duties  of  the  various  officers  for  whom  he  may 
at  any  time,  under  the  laws  then  existing,  be  entitled  to  vote;  and,  if  physically  able, 
shall  have  indicated  his  substantial  attachment  to  and  identification  with  the  State,  by 
having  been  regularly  employed  or  engaged  in  a  lawful  trade,  profession,  business,  call- 
ing, v/ork,  oir  service,  for  at  least  one-fourth  of  the  year  next  preceding  tliat  in  which  he' 
shall  offer  to  vote.  Any  State  would  be  benefited  by  an  impartial  application  of  the 
principle^  here  embodied." 

Then  it  goes  on  and  states  the  objections  to  it,  which  are  patent  to  us  all,  and 
which  we  are  now  discussing.  But  in  itself  the  suggested  test  is  ideal.  No  man  ought 
to  be  allowed  to  vote  who  does  not  know  the  general  nature  of  the  duties  of  the  person 
for  whom  he  is  casting  his  ballot.  Now,  it  is  said,  but  you  may  under  that  provision 
impose  such  an  examination  as  you  v/111  unjustly  exclude  an  applicant.  So  you  may, 
under  an  examination  under  the  Constitution  of  the  United  States  or  the  State  of  Vir- 
ginia. 

You  may  ask  catch  questions  about  them,  as  you  can  ask  catch  questions  about  the 
duties  of  an  office.  You  may  ask  questions  which  none  of  us  can  answer  under  either. 
But,  gentlemen,  we  must  have  some  test.  The  test  here  is  an  ideal  one.  It  can  be 
reasonably  and  honestly  administered,  and  will  be  efficient;  and  no  man  need  be  de- 
prived of  his  suffrage;  because,  in  addition  to  the  judges  of  registration,  he  can  go  to 
the  judges  of  the  Circuit  Courts  and  have  his  competency  passed  on. 

Mr.  Meredith:  What  would  be  the  effect  if  the 'first  time  this  law  went  before  the 
people  it  should  be  a  single  congressional  election?  Wouldn't  it  allow  nearly  every 
voter  in  the  State? 

Mr.  Thorn:  No,  sir.  The:  voter  is  not  registered  for  any  special  election;  he  is 
registered  for  all  elections,  and  he  has  to  pass  an  examination  on  any  ofilce  about 
which  he  m.ay  be  questioned,  from  President  down  to  Justice  of  the  Peace.    That  is  to 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


2985 


b3  the  registration  requirement — any  or  all.  The  language  is,  "who  may  be  able  to 
explain,  when  he  offers  for  registration,  the  duties  of  the  various  officers  for  whom  he 
may  at  any  time,  under  the  laws  existing,  be  entitled  to  vote,"  and  it  is  put  in 
that  way  to  coxer  the  very  matter  that  has  been  suggested  by  my  friend  from  RiciL- 
mond. 

Mr.  Dunaway.    I  could  perhaps  form  a  guess,  as  all  other  gentlemen  here  can,  but  I 
woi^ld  like  for  you  to  say  why  the  right  of  appeal  is  given  from  the  Commissioners  of 
Registration  to  the  Judges?    Might  not  your  scheme  remain  without  .  that  feature 
which  seems  to  be  objc?<;tionable  to  so  many  here? 

Mr.  Thom:  I  think  the  constitutionality  of  it  is  very  much  strengthened  by  the 
appeal;  I  think  the  fairness  of  it  is  very  much  strengthened  by  the  appeal.  The  appeal 
is  given  as  a  guarantee  to  the  white  man,  and  to  the  worthy  man  everywhere,  that  he 
shall  hot  be  kept  out  of  the  suffrage  by  any  partisan  board,  if  the  board  should  be- 
come partisan.  It  is  done  in  the  interest  of  honesty  in  elections  and  honesty  in  regis- 
tration. It  is  done  for  the  purpose  of  making  the  plan  invulnerable  from  any  stand- 
point of  constitutional  objection. 

Mr.  R.  L.  Gordon:  Wouldn't  it  be  a  very  easy  matter  for  a  sharp  negro  preacher  or  a 
sharp  negro  lawyer  (and  there  are  a  great  many  of  them  vrho  are  very  smart),  who  felt 
a  great  interest  in  the  question  of  negro  suffrage,  to  hold  schools,  and  go  around  and 
train  them  up,  and  teach  them  enough  to  go  and  stand  this  examination;  while  the 
illiterate  and  ignorant  white  class  would  not  have  the  same  benefit,  because  there 
v.ould  not  be  the  same  amount  of  interest  felt  by  the  white  people  who  might  be  willing 
to  instruct  them  as  to  the  duties  and  obligations  of  the  diffs^ent  officers.  The  negro  is 
quick  at  that  kind  of  thing,  and  would  feel  a  very  lively  interest  in  it.  That  is  a 
difficulty  that  suggests  itself. 

Mr.  Thom:  We  must  run  whatever  risk  is  involved  in  that  suggestion.  We  think 
that  wheh  the  negro  understands  that  that  provision  is  to  be  administered  by  people 
hostile  to  his  vote;  that  in  addition  to  that  he  has  to  make  out  his  own  application  for 
registration :  that  in  addition  to  that  he  has  to  make  out  his  own  ballot,  without  assist- 
ance, and  in  addition  to  that  he  has  to  pay  the  poll-tax,  we  think  that  that  will  keep  him 
from  the  ballot-box;  and,  if  it  will  not,  we  know  nothing  else  practicable  that  will,  and 
would  welcome  suggestions  on  the  subject.  The  people  in  the  black  section  are  willing 
to  take  any  plan  that  is  efficient.  They  are  not  wedded  to  this.  They  will  make  any 
sacrifice  of  their  preconceived  ideas.  They  will  take  property,  they  will  take  anything: 
but  they  have  been  dr^en  to  this  plan  by  the  white  sections  of  the  State  of  Virginia. 

Mr.  Daniel:  There  are  four  hundred  and  forty-odd  thousand  voters  in  Virginia. 
Under  the  bill  of  the  majority  the  whole  body  of  them,  with  the  exception  of  the  soldier 
and  the  man  who  has  paid  one  dollar  tax,  has  got  to  attend  these  examinations— the 
whole  body  of  them  now,  and  the  whole  body  of  them  in  the  future.  What  would  be- 
come of  the  Circuit  courts  under  the  appeals  taken,  if  anybody  were  disposed  to  appeal 
from  such  an  immense  mass  of  people? 

Mr.  Thom:  Just  what  would  become  of  them  if  he  had  registered  under  the  pres- 
ent State  laws. 

Mr.  Daniel:  But  with  the  small  number  of  Circuit  courts  and  the  great  mass  of 
people,  who  would  have  to  go  before  them,  perhaps  350,000— 

Mr.  Thom:  We  do  not  expect  there  will  be  any  such  number  of  appeals  as  to  be 
the  least  embarrassing. 

I  want  now  to  call  the  attention  of  the  gentleman  of  the  conference  to  this  fact, 
that  the  objection  that  is  made  to  this  clause  is  largely  an  objection  exaggerated  by 
ihe  verv  discussion  which  we  are  now  having.  The  principle  of  an  indefinite  suffrage 
qi-lification  exists  in  a  more  intangible  form  than  they  suggested  here  in  two  of  the 
>^orthern  States  of  this  country.  It  exists  in  thei  State  of  Minnesota,  where  no  man  is 
allowed  to  vote  unless  he  is  capable  of  "enjoying  the  rights  of  citizenship,"  and  the 
power  to  determine  whether  he  is  or  not  is  left  to  the  courts. 

188 — Const.  Deb. 


2986  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Daniel:    As  to  Indians. 

Mr.  Thorn:  That  is  in  the  Constitution  of  Minnesota;  and  in  the  Constitution  of 
Vermont  a  man  has  to  be  of  "  peaceable  behavior."  We  have  exaggerated  the  objec- 
tion to  this  administrative  clause  by  the  very  fact  of  what  we  are  doing  here,  of  dis- 
cussing it.  I  tell  you  more,  and  I  ask  you  to  listein  to  this:  It  has  been  exaggerated 
by  the  very  efforts'  of  the  men  who  come  from  the  black  belt  to  find  some  remedy  of  an 
automatic  character.  Prom  the  beginning  of  this  Convention  down  to  the  agreement 
on  this  report,  there  was  a  fight  made  by  the  members  from  the  black  belt  to  have  an 
absolutely  automatic  test  of  suffrage;  and  it  was  thei  very  desire  that  they  had,  com- 
ing from  that  section  of  the  country  especially  abounding  in  objections  to  the  present 
system;  it  was  their  anxiety,  their  prayerful  hope,  that  they  might  find  some  automatic 
scheme  that  would  remove  the  possibility  of  all  administrative  clauses  forever;  their 
effort  to  get  away  from  that  and  to  get  away  from  anything  except  what  would  act 
absolutely  automatically  that  has  caused  this  very  exaggerated  fear  of  what  this  clause 
is  going  to  amount  to  in  actual  operation.  And  why  was  that  hope  disappointed?  Not 
because  our  men  in  the  black  belt  were  not  willing  to  make  sacrifices  of  their  white 
votes  in  order  to  get  an  automatic  system.  They  werd  willing  to  take  property,  or  to 
take  anything,  but  it  was  because  there  came  a  cry  to  us  from  beyond  the  mountains 
that  we  must  do  nothing  to  interfere  with  their  white  vote.  We  thought  it  just,  and 
we  thought  it  right,  that  we  should  give  them  every  opportunity  to  maintain  their  pres- 
ent status.  In  order  to  do  it,  v/e  had  to  give  up  our  cherished  wish  to  get  an  abso- 
lutely automatic  plan.  That  is  the  reason  that  we  find  ourselves  here  to-day,  advocat- 
ing a  clause  with  the  administrative  feature  in  it. 

We  do  it  because  we  do  not  want  to  keep  our  friends  from  beyond  the  mountains 
and  in  the  Valley  of  Virginia,  where  they  are|  not  troubled  with  this  problem  from  hav- 
ing their  white  people  come  to  the  polls.  We  are  ready  to  make  any  sacrifice:  we  are 
ready  to  take  anything.  Are  the  white  districts  of  this  State  ready  to  do  the  same? 
They  tell  us  it  is  impossible.  They  tell  us  it  cannot  be  done.  Then,  what  are  we  to 
do?  Are  v/e  to  remain  under  this  curse  forever?  Or  are  we  to  accept  the  best  thing 
that  we  can  get?  We  do  not  consider  this  administration  clause  half  as  objectionable 
as  the  conditions  under  which  we  arq  suffering  to-day.  V/e  take  it  as  a  choice  between 
the  condition  which  we  are  in  now,  and  which  it  is  impossible  to  endure,  and  the  best 
prospect  of  relief  we  can  get — in  the  hope  that  it  will  mean  for  us  some  relief  and 
some  escape  and  some  opportunity  to  reach  again  a  condition  of  public  purity  and  high 
morality  in  the  matter  of  elections.  My  friendsi  around  me  kno\w  that  that  is  the  his- 
tory of  this  clause.  They  know  that  we  men  of  the  black  belt  have  stood  as  an  assault- 
ing column  upon  it  for  three  months  in  the  Suffrage  Committee.  They  knovv^  the  reason 
that  was  given  against  our  suggestions,  which  was  that  our  plan  would  strike  down  tht? 
v^'hite  vote  of  this  State;  and  we  had  to  respect  it.  And  when  we  gave  them,  our 
brethren  beyond  the  mountains,  every  opportunity  that  there  was  for  saving  the  white 
voter,  when  they  said  that  this  was  their  scheme  for  saving  the  white  vote,  and  they 
would  take  it  temporarily  for  that  purpose,  wei  said  to  them,  we  make  to  you,  gentle- 
men, that  concession,  but  we  must  have  the  concession  from  you  of  enough  to  save  us 
in  the  black  country;  and  the  only  way  that  can  be  suggested  is  that  you  concede  to 
us  the  right  to  keep  that  still  between  the  negro  and  the  ballot-box.  Now,  that  is  the 
history  of  it.    That  is  the  history  of  this  trouble. 

That  is  the  reason  you  find  all  of  us  of  the  black  belt  here  about-face  and  advocat- 
ing an  understanding  clause.  We  do  it  for  the  salvation  of  our  people,  and  we  do  it 
because  we  have  had  to  make  concessions  to  the  people  from  the  white  country  in 
order  to  save  the  white  vote  of  this  State.  Now,  I  want  you  to  remember  that,  gentle- 
men. I  want  you  to  remember  that  that  is  the  explanation  of  what  we  are  doing.  I 
want  you  to  remember  that  the  people  in  the  black  belt  cannot  see  this  Convention 
adjourn  and  give  us  no  relief.    This  is  their  first  opportunity  for  thirty  years;  this  is 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA.  2987 

their  last  opportunity  during  this  generation.  Are  we  to  insist  on  some  other  scheme — 
a  scheme  which  the  people  from  the  white  country  tell  us  they  will  reject  when  it 
comes  to  an  election;  are  we  to  stake  our  hopes  on  something  that  we  can  never 
realize? 

Are  we  to  have  an  automatic  system  which  they  say  their  people  will  never  be 
v/iliing  to  submit  to?  Are  we  to  entertain  for  one  moment  the  thought  of  losing  this 
one  opportunity  for  saving  our  people?  We  must  have  something  practicable;  we  must 
present  a  plan  that  the  people  of  Virginia  will  give  us;  and  we  say,  that,  if  we  give  to 
them  what  theiv"  ask  of  us,  in  order  to  save  their  v/hite  people,  we  can  expect  their  white 
people  to  give  the  same  thing  to  us  for  the  purpose  of  saving  our  white  people.  There 
the  question  with  them  is  the  problem  of  saving  ths^  suffrage  of  their  white  people,  and 
the  question  with  us  is  the  question  of  saving  the  destiny  of  our  white  people.  It  is  no 
small  issue.  The  whole  hope  of  Virginia  rests  upon  it;  the  whole  future  of  this  State 
rests  upon  it.  If  we  do  not  get  it,  v/e  are  gone  forever,  so  far  as  this  generation  goes. 
It  is  our  one  chance.  We  cannot  get  what  we  want,  because  it  v/ill  operate  unfor- 
tunately upon  our  brethren  beyond  the  mountains.  Is  it  fair  to  deny  to  us  for  our  people 
Y^^hat  we  concede  to  them  for  theirs;  and  ara  these  little  suggestions — perhaps  there 
will  be  this  evil  of  administration  or  that  evil  of  administration — are  they  to  be  weighed 
in  the  balance  with  the  great  question  of  saving  the  destiny  of  the  65  per  cent,  of  the 
white  people  of  the  State,  who  reside  east  of  the  Blue  Ridge  Mountains? 

Now,  gentlemen,  that  is  the  question.  That  is  the  sole  question  which  must  go 
home  to  every  heart  in  this  audience  to-night.  That  is  the  question  which  you  must 
answer  to  yourselves,  because  here  and  now  on  you  rests  the  responsibility  of  saving 
our  destiny  for  ages  to  come.  I  trust  to  God  that  you  will  not  allow  this  opportunity 
to  pass  from  you.  It  is  our  only  hope.  What  means  these  differences  from  our  best 
friends?  What  means  the  fact  that  after  four  months  we  cannot  agree?  It  means 
that  we  of  the  east  feel  pressing  down  upon  us  the  great,  horrible,  burden  of  this  curse, 
and  that  they  do  not  feel  and  cannot  feel  and  cannot  realize  it,  and  that  we  want  to  get 
it  off  of  us.  Oh,  gentlemen,  do  not  press  down  upon  us  the  mighty  blight  of  this 
eternal  curse! 

We  are  asking  you  for  life,  for  liberty,  for  the  sunlight.  Don't  say  to  us  that  we 
must  go  back  once  more  to  our  wallowing  in  the  mire!  Do  not  tell  us  that  we  must 
return  to  the  filth  and  darkness  of  our  prison  house  again!  Come  and  help  us!  Oh,  it 
v/as  an  alien  hand  that  put  this  burden  on  us;  will  it  be  a  brother's  that  comes  and 
takes  it  away?  You  have  our  destiny  in  your  keeping.  You  can  loosen  the  cords  that 
bind  this  weight  upon  us  and  take*  it  away  if  you  will.  You  can  unstrap  this  giant  race. 
We  are  no  degenerate  people.  Our  arm  is  not  shortened  that  it  cannot  achieve!  Our 
loins  are  not  weakened  that  w.(  cannot  bring  forth  again  the  giants  of  the  earth!  We 
are  the  same  people,  with  the  same  strength,  the  same  hopes,  the  same  possibilities  as 
we  were  w^hen  we  made  the  history  of  this  nation.  Will  you  unloosen  our  energies 
and  open  for  us  again  the  paradise  of  achievement?  If  you  will,  if  you  do,  then,  Vir- 
ginia, with  her  present  equal  to  her  past  and  with  her  future  well  assured  in  the  pur- 
pose and  patriotism  of  her  people,  will  stand  ready,  at  God's  command,  with  the  other 
States  of  this  Union  to  lend  her  aid  in  the  work  of  developing  His  plans  for  the-  puri- 
fying and  upbuilding  of  the  people,.  Oh,  gentlemen.  I  hope  that  my  eyes  m.ay  see  this 
consummation!  I  hope  that  this  new  light  will  break  upon  my  vision!  If  it  comes — 
when  it  comes,  for  I  believe  it  will  come — then  a  spirit  of  profound  thankfulness  to  God 
will  be  heard  throughout  our  borders,  and  as  our  people  pause  for  a  time  from  their 
labors  in  reverent  gratitude,  and  watch  the  breaking  of  the  new  light,  happy  prayers 
will  ascend  from  every  heart,  and  they  will  realize  that  this  Convention  has  estab- 
lished a  new  Angelus  for  the  nation.  (Applause.) 

These  reasons  that  I  gave  in  the  conference  for  favoring  the  permanent  under- 
standing clause  involved  also  the  question  now  before  this  Convention  on  this  amend- 


2988 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


ment,  which  is  that  the  t.anporary  understanding  clause  be  stricken  out  of  this  article. 
As  I  have  understood  the  purpose  of  this  Convention  it  is  not  to  enfranchise  the  white 
citizens  of  this  State,  but,  by  constitutional  means,  to  disfranchise  the  colored  citizens 
of  the  State.  There  is  no  reason  for  enfranchising  the  whites.  They  aue  enfranchised 
now.  If  any  provision  be  inserted  in  the  plan  of  suffrage  of  the  State,  the  effect  of 
which  is  only  to  caifranchise  the  whites  and  not  to  disfranchise  the  negroes,  then,  in- 
deefi,  have  we  done  a  vain  thing,  and  our  mission  here  is  a  failure.  It  is  not  pretended, 
even  by  the  advocates  of  the  plan  now  engaging  the  attention  of  this  Convention,  that 
the  object  of  the  temporary  understanding  clause  is  to  deal  with  the  negro  question  at 
all ;  but  merely  that  it  shall  be  used  as  an  instrumentality  for  enfranchising  the  whites. 
I  wish  it  to  be  understood  that  the  understanding  clause,  as  put  into  this  article,  is  no 
concession,  either  to  the  interests  or  to  the  views  of  the  members  of  this  Convention 
who  represent  the  intensity  and  horror  of  this  negro  question.  If  there  be  nothing  else 
in  this  article  to  deal  with  their  afflictions,  then  why  place  on  the  pages  of  your  Consti- 
tution a  provision  which  does  not  touch  that  problem,  but  merely  touches  the  matter 
of  reinfranchising  a  race  which  is  already  enfranchised,  as  to  every  member  of  it,  under 
existing  laws. 

Mr.  Daniel:  Why  does  not  this  provision  touch  the  probkm  in  just  the  same  way 
that  the  understanding  clause  in  the  report  of  the  majority  of  the  committee  touches  it? 

Mr.  Thorn:  In  answer  to  the  question  of  my  friend  from  Campbell  I  will  say  this 
clause  extends  only  until  1904.  That  is  but  one  year  from  this  time.  The  permanent 
understanding  clause,  to  which  you  allude  would  exist  during  the  life  of  this.  Constitu- 
tion. If  it  be  the  purpose  of  this  Constitutional  Convention  to  deal  with  this  great 
negro  question  for  one  year,  and  for  one  year  only,  then  it  does  affect  the  question 
during  that  one  year  in  the  way  that  the  permanent  understanding  clause  would.  But 
I  was  not  alluding  to  it  in  any  such  relation,  because  I  did  not  suppose  there  was  a 
man  within  the  hearing  of  my  voice  w^ho  would  bet  content  with  a  remedy  which  lasted 
only  over  two  elections  in  the  State  of  Virginia — namely,  the  congressional  election  in 
the  fall  of  1902,  and  the  legislative  election  in  the  fall  of  1903.  My  feeling  vv^as  that  the 
importance  of  the  main  subject  would  not  permit  me  to  pause  in  the  path  of  my  argu- 
ment to  consider  the  effect  of  this  understanding  clause,  which  expires  within  one  year 
after  this  Constitution  will  go  into  effect.  I  did  not  suppose  there  was  an  advocate 
anywhere  of  a  constitutional  change  on  the  subject,  who  would  be  content  with  a 
remedy  so  transient  and  so  short-lived  as  this  temporary  understanding  clause — a 
remedy  that  would  leave  our  people  eixactly  where  they  are  at  the  present  moment, 
after  the  expiration  of  one  brief  twelve  months. 

So  I  say,  regarding  this  short  period,  covering  one  election  for  Congress  and  one 
election  of  the  General  Asisembly,  that  there  is  nothing  in  this  understanding  clause 
which  appeals  as  a  measure  of  re/lief  to  the  country,  which  I,  in  part,  represent;  and 
that  if  it  is  wanted  at  all,  it  is  wanted  by  other  sections — namely,  by  the  white  sections 
of  the  State.  But  those  sections  are  not  in  ne^sd  of  it,  because  their  voters  are  voting 
to-day.  If  there  be  objection  to  the  way  in  which  this  clause  may  be  administered,  if 
it  is  not  a  proper  or  efRciemt  method  of  dealing  with  this  problem,  why  should  it  be 
adopted  at  all,  when  its  only  effect  can  be  to  maintain  existing  conditions  as  to  the 
white  vote  and  leave  the  great  problems  that  we  ard  here  to  solve  absolutely  untouched? 

I  shall,  therefore,  vote  to  strike  out  this  temporary  understanding  clause. 

Now,  I  wish  to  call  the  attention  of  the  gentlemen  of  this  Convention  to  one  further 
point.  The  answer  to  the  argument  that  I  have  heretofore  been  making,  if  there  is  any 
answer,  must  he  this:  That  there  are  other  provisions  of  this  Constitution  intended  to 
deal  with  the  negro  question  after  1904.  I  shall  now  ask  the  attention  of  ths  Conven- 
tion to  the  question  of  the  value  and  dfRciency  of  those  provisions  applicable  after  Jan- 
uary 1,  1904.  It  isi  proposed,  after  that  time,  to  establish  a  qualification  for  suffrage  of 
poll-tax  cumulative  for  three  years,  and  to  impose  the  obligation  upon  the  voter  to  make 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


2989 


out  Ms  own  application  for  registration,  and,  when  voting,  to  make  out  his  own  ballot. 
Let  us  examine  these  requirements. 

First,  as  to  ths^  poll-tax.  The  efficiency  of  this  cumulative  feature  of  the  poll-tax  is 
more  apparent  than  real.  It  does  not  require  a  man  when  he  proposes  to  vote,  to  pay 
as  much  as  S4.50  at  that  time;  but  it  merely  requires  that  the  proposed  voter  shall  have 
kept  up  his  arrearages  of  poll-tax  for  three  preceding  years.  If  he  has  paid  them,  year 
by  year,  he  has  satisfied  the  requirements  of  this  cumulative  feature.  Now,  what  is 
the  history  of  the  poll-tax  in  the  State  of  Virginia  as  to  the  negro  race.  The  history 
of  that  tax  is  that  now,  when  it  is  in  no  way  related  to  the  matter  of  sufi'rage,  when 
there  is  no  such  obligation  as  that  put  upon  the  voter  in  respect  to  the  poll-tax,  64,000 
negroes  are  paying  it  year  by  year  in  this  State.  Only  126,000  of  them  are  assessed 
with  a  poll-tax,  and  between  50  and  60  per  cent,  of  this  number  are  paying  it  year  by 
year,  and  this,  too,  when  it  stands  absolutely  unrelated  to  the  question  of  suffrage,  and 
when  there  is  no  obligation  on  the  negro  in  respect  to  it  other  than  the  obligation 
which  rests  upon  every  other  citizen  of  the  State  of  Virginia. 

So  I  say  that  when  you  consider  the  question  of  your  poll-tax  you  find  that  more 
than  50  per  cent,  of  the  negroes  are  paying  it  now. 

TMiat  next?  The  next  requirement  is  the  educational  feature.  Let  me  examine 
that.  I  ask  the  attention  of  those  gentlemen  of  the  Black  Belt  who  have  voted  in 
favor  of  this  proposition,  vchile  I  refer  to  some  of  the  things  that  are  staring  their 
people  in  the  face. 

I  wish  to  call  th£  attention  of  this  Convention  to  the  fact  that  neither  in  the  State 
of  ilississippi  nor  in  Louisiana  nor  in  North  Carolina,  has  there  ever  been  a  Republican 
vote  for  President  since  the  year  1S7G,  which  amounted  to  as  many  as  57,000.  I  ask 
that  these  figures  be  borne  in  mind.  Ail  of  the  States  referred  to  have  held  their  Con- 
sticutional  Conventions  to  deal  with  this  question  since  1S76.  In  other  words,  the 
problem  which  'has  called  Constitutional  Conventions  together  in  the  State  of 
Mississippi,  in  the  State  of  Louisiana,  and  in  the  State  of  South  Carolina,  was,  in  each 
case  to  deal  with  a  negro  vote  of  less  than  57,000.  The  existence  of  57,000  negro  voters 
in  those  States  was,  in  their  judgment,  a  sufficient  menace  to  their  civilization  and  to 
the  best  interests  of  their  people,  to  require  the  assembling  of  Constitutional  Conven 
tions  in  order  that  the  matter  of  negro  suffrage  might  be  dealt  with  by  new  constitu- 
tional enactments. 

VTiat  is  proposed  by  xhi  article  that  you  are  now  asked  to  favor  in  Virginia?  It  is 
proposed  to  put  upon  your  registration  books  as  soon  as  the  year  190-1:  comes,  a  negro 
vote  of  at  least  S4,000.  That  is  a  matter  susceptible  of  mathematical  demonstration. 
By  the  report  of  the  minority  of  the  committee,  which  I  held  in  my  hand,  it  is  shown 
that  in  the  year  1900  there  were  in  A'irginia  within  a  fraction  of  70.000  negTo  voters, 
who.  by  the  United  States  Census,  were  literate.  That  fact  was  of  such  a  large  and 
controlling  character  that  my  friend  from  Lynchburg  (Mr.  Glass")  made  a  change  in 
the  minority  plan — and  this  change  is  now  in  his  plan — requiring  not  only  an  educa- 
tional qualification,  but,  in  addition  thereto,  an  understanding  clause.  Ke  saw  the 
weight  of  this  argument.  He  admitted  it  upon  the  floor,  and.  in  order  to  keep  from  the 
registration  books,  on  the  first  registration,  thsse  69,000  negroes,  he  changed  the  propo 
sition  from  an  alternative  educational  and  understanding  qualification,  so  as  to  make 
it  cumulative  and  to  require  the  persons  offering  to  register  to  have  both  the'  educa- 
tional and  understanding  qualification.  But  hou-  far  does  cumulative  qualification  ex- 
tend? 

The  necessity  which  drove  the  gentleman  from  Lynchburg  to  change  the  minority 
report,  that  necessity  which  niade  him  see  that  it  would  never  do  to  have  these  clauses 
in  the  alternative  only,  is.  by  the  suggestion  now  before  you,  made  to  extend  for  the 
brief  period  of  one  year,  and,  as  I  have  said,  only  until  two  elections  are  held  in  the 
State  of  Virginia. 

I  suggest,  for  your  consideration,  this  proposition:    If  the  presence  of  69,000  negro 


2990 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


voters  is  of  controlling  influence,  if  it  has  any  substantial  significance  or  importance, 
then  the  fact  that  these  men  are  kept  away  from  the  ballot-box  for  ona  brief  year  only, 
is  absolutely  at  war  with  the  policy,  admitted  here  to  be  wise  and  patriotic,  that  these 
mem.  of  another  race  should,  as  far  as  our  constitutional  limitations  will  permit,  be  kept 
from  the  ballot-box  in  the  State  of  Virginia. 

I  say  tiiat  it  comes  to  this,  that  although  we  are  sent  into  this  room  to  relieve 
Virginia  of  this  burden,  although  the  destines  and  happiness  of  our  people  di-rpend  upon 
our  properly  performing  that  duty,  yet  we  are  asked  to  end  our  efforts  in  that  regard 
with  the  year  1903,  and,  on  the  first  day  of  January,  1904,  to  replace  upon  the  registra- 
tion books  of  this  State,  not  only  the  69,000  negroes  that  were  literate  in  1900,  but  an 
additional  number,  to  which  I  will  now  call  your  attention. 

The  census,  returns  of  the  United  States  Government  show  that  illiteracy  dis- 
appeared among  the  negroes  from  1890  to  1900  at  the  rate  of  25  per  cent,  of  the  total 
numbeir,  diminishing  from  57  per  cent.,  in  1890,  to  32  percent,  in  1900.  That  means 
that,  during  that  period,  it  diminished  at  the  rate  of  2J  per  cent,  a  year. 

Take  the  four  years  from  1900  to  1904  and  allow  for  a  decrease  of  illiteracy  of  21 
per  cent,  a  year,  and  you  will  have  10  per  cent,  greater  literacy  in  the  State  of  Virginia 
among  the  negroes  in  1904  than  you  had  in  thei  year  1900.  There  were  146,000  negroes 
in  1900.  Ten  per  cent,  of  that  number  is  14,600.  Add  these  14,600  to  the  69,000  and  a 
fraction  literate  in  1900,  and  you  have  negro  voters  that  will  be  placed  on  your  registra- 
tion books  on  the  first  day  of  January,  1904,  amounting  to  84,000  in  number.  We  are 
told,  gentlemen,  that  this  will  give  us  a  majority  in  the  State  of  Virginia.  We  are  told 
that  we  already  have  155,000  white  majority,  and  that  when  this  plan  goes  into  effect 
v/e  will  have  195,000  white;  majority  in  the  State.  Gentlemen,  that  statement  has  no 
meianing  to  me.  That  doesn't  touch  the  problem  as  it  presents  itself  to  my  mind.  We 
are  not  here  in  this  Convention  for  the  purpose  of  establishing  and  m.aintaining  a 
white  majority  in  the  State  of  Virginia.  We  are,  here  for  a  higher  and  nobler  and 
more  perm.anent  purpose.  We  are  here  for  the  purpose  of  relieving  the  State  of  Vir- 
ginia of  this  negro  race  question  as  a  factor  in  our  civilization;  and  for  the  purpose  of 
liberating  the  intelligence  of  the  State  of  Virginia  from  the  serfdom  which  has  bound 
it  for  the  last  thirty  years.  Many  of  us  do  not  look  with  pride  upon  what  Virginia  has 
done  v/ithin  the  last  thirty  years.  We  are  tired  of  having  to  be'  beckoned  back  to  the 
records  and  achievements  of  a  century  ago,  in  order  to  find  Virginians  doing  something 
in  the  history  of  their  country  for  the  purpose  of  advancing  the  destinies  of  civilization. 
We  are  longing  for  an  opportunity  to  strike  from  our  arms  the  shackles  which  these 
unnatural  conditions  have  placed  upon  us.  We  are  anxious  for  an  opportunity  to  think 
free  and  speiak  free  and  act  free  in  the  councils  of  the  nation.  We  da  not  think  there 
can  be  any  effectual  or  permanent  liberty  among  the  people  of  this  land  while  the  minds 
of  our  peiople  have  upon  them  shackles  which  differentiate  them  from  all  other  think- 
ing and  acting  people  of  this  country.  We  are  anxious  to  open  to  our  young  m.en  the 
paths  of  high  statesmanship  an,d  of  true,  untrammelled,  patriotic  action.  We  know  that 
cannot  be  done  when  we  have  at  home  a  cloud  that  is  shadowing  us  even  to  the  infinity 
of  darkness,  and  a  problem  which  is  making  every  white  man  stand  on  one  side  of 
every  question  without  regard  to  its  merits,  and  eivery  colored  man  is  massed  upon  the 
other.  We  know  that  there  can  be  no  intellectual  freedom;  that  there  can  be  no  in- 
telleictual  achievements;  that  there  can  be  no  intellectual  greatness  among  our  people, 
until  their  minds  are  liberated  and  they  are  able  to  take  their  place  as  full-grown  men 
in  the  councils  of  the  people  of  this  country.  Why  is  it  that  we  hear  of  Washington 
and  Jeifferson  and  Madison  and  Monroe?  It  is  because  the  atmosphere  which  they 
breathed  was  an  atmosphere  in  which  they  could  grow;  it  was  an  atmosphere  in  which 
they  could  think  fearless  thoughts;  it  vv^as  an  atmosphere  in  which  they  could  do  fear- 
less deeds,  and  thereby  Virginia  gave  her  sons,  the  possibility  of  a  normal  and  intellect- 
ual expansion  which  made  them  the  founders  of  this  republic.    Let  us  turn  from  that 


DEBATES  OE  THE  COXSIITUTIOXAL  COXTEXTIOX  OE  TIEGIMA. 


•2991 


picture  of  a  hundred  years  ago  and  think  what  we  are  to-day,  TvTiere  is  the  man,  with- 
in the  memory-  of  any  one  upon  this  floor,  where  is  the  man  who,  within  this  generation 
has  been  able  to  contribute  anything   to  the  statesmanship  of  the  time? 

Gentlemen,  it  is  for  this  freedom  and  this  opportunity  that  we  are  yearning.  It  is 
to  make  this  opportunity  for  freedom  that  we  have  assembled  in  this  Convention.  But, 
when  you  leave  upon  us  more  than  one  half  of  the  present  negro  vote;  when  you  leave 
upon  us  more  than  80,000  ready  to  keep  up  the  conditions  that  are  now  disturbing  us; 
when  you  have  84,000  people  that  can  be  added  to  a  small  contingent  of  white  men  to 
keep  us  under  subjection,  intellectually  and  morally,  what  solution  have  you  given  of 
cur  problem?  What  help  have  you  brought  to  our  people?  How  have  you  made  it  pos- 
sible for  our  sons  to  grow  greater  in  the  land  of  their  birth  and  more  useful  in  their 
day  and  generation?    You  have  not  touched  the  problem. 

You  have  left  upon  us  the  incubus  of  this  thing,  and  when  we  go  cut  of  this  hall, 
having  done  nothing  that  will  take  away  these  84,000  votes,  we  go  out  with  a  confession 
of  imbecility  and  of  failure  to  deal  with  the  problem,  and  we  will  be  left  still  enslaved, 
intellectually  and  morally,  for  the  future. 

Gentlemen,  entertaining  these  earnest  convictions,  not  merely  as  the  offspring  of 
temporary  consideration,  but  as  the  result  of  the  thought  of  a  lifetime,  I  hope  that  there 
is  no  patriotic  man  in  this  Convention  that  will  not  realize  the  sorrow  that  is  filling 
my  heart  to-day  when  I  see  the  high  mission  of  this  Convention  about  to  be  surrendered, 
and  when  I  realize  that  the  only  hope  for  Virginia  in  this  generation  is  gone.  The 
proposition  now  under  consideration  is  no  solution.  It  stands  before  us  with  all  the 
blight  and  curse  upon  it  of  the  barren  fig-tree  of  the  Scriptures.  You  may  dig  around 
it;  you  may  dung  it,  but  at  last  the  inexorable  sentence  must  be  "cut  it  down:  why 
cumbereth  it  the  ground?"  Any  proposition  that  leaves  us  face  to  face  with  more  than 
one-half  of  the  vote  of  the  negroes,  any  proposition  which  does  not  realize  the  depth, 
width,  and  immensity  of  this  problem,  but  leaves  us  to  the  same  old  battle,  which  leaves 
us  in  the  same  old  conditions,  that  prevents  us  from  knocking  from  our  arms  the 
shackles  which  have  enslaved  us,  is  to  me  a  horrible  confession  of  weakness  and  im- 
becility on  the  part  of  our  people.  Right  here  I  want  to  thank  the  representatives  of 
what  is  familiarly  known  as  the  white  districts  of  the  State  for  the  sympathy  and  sup- 
port which,  in  the  main,  they  have  given  to  these  hopes  and  aspirations  of  my  oppressed 
people.  If  the  gentlemen  near  our  homes,  if  the  gentlemen  who  are  most  nearly  in 
touch  with  this  problem,  had  given  it  the  same  support  that  has  been  given  to  it  by  those 
gentlemen  from  beyond  the  mountains  we  would  not  have  been  to-day  in  the  humiliat- 
ing and  hopeless  condition  which,  in  m-y  judgment,  confronts  the  people  of  this  State. 
I  know  that  these  gentlemen  from  my  own  sections  have  been  actuated  by  as  high  a 
purpose,  by  as  patriotic  motives  as  I,  myself,  have  been.  I  do  not  believe  that  they  have 
realized  the  greatness  of  this  problem.  I  do  not  believe  that  they  have  known  what 
they  are  doing.  I  do  not  believe  for  a  moment  that  if  they  had  thought 
that  the  problem  was  such  as  I  think  it  is,  and  that  this  remedy  was  as  ineffi- 
cient as  it  appears  to  me,  they  would  have  ever  acted  as  they  have  acted.  But  let  me 
say  to  them  that  this  crisis  in  our  affairs  is  so  great  that  a  blunder  at  this  time  is  a 
crime  against  our  people;  that  a  mistaken  thought,  that  a  mistaken  apprehension  of 
what  we  need,  that  a  mistaken  conception  of  what  we  get.  is  so  fraught  with  woe  to 
the  people  we  represent  that  no  forgiveness  can  be  found  for  them  except  in  the  tri- 
bunal presided  over  by  that  Savior,  who,  when  He  was  crucified  upon  the  cross,  said 
to  His  crucifiers:  "Father,  forgive  them;  they  know  not  what  they  do."  I  cannot  but 
recall,  as  I  stand  here,  that  when  that  Savior  was  crucified  it  was  the  hands  of  His  own 
people  that  nailed  Him  to  the  cross;  that  when  Joseph  was  sold  into  slavery,  it  was  the 
hands  of  his  own  brothers  that  created  his  servitude.  My  hope  and  prayer  is  that  the 
time  will  not  come,  in  connection  with  this  suffrage  matter,  when  old  Virginia,  in  the 
mortal  hour  of  her  hopes,  of  her  aspirations,  and  of  her  destiny,  will  have  to  realize 
that  she  has  received  the  fatal  blow  from  the  hands  of  her  own  beloved  sons. 


2992 


DEBATES  OF  THE  COisTSTITUTIOiSTAL  CONVENTIOI^  OF  VIRGINIA. 


I  have  now  registered  my  prote'st  against  this  inefficient  proposition,  I  have  never 
been  bent  on  any  particular  measure.  There  has  never  been  a  time  v^hen  I  was  not 
willing  to  accept  any  efficient  solution  of  this  question.  But  there  was  one  criterion 
which  I  felt  that  I  must  insist  upon  so  far  as  my  own  support  should  go,  and  that  was, 
that  when  Virginia  assembled  together  for  the  first  time  in  thirty  years  her  represen- 
tatives in  a  Constitutional  Convention,  its  members  ought  to  delal  effectively  and 
finally,  so  far  as  the  Constitution  of  the  United  States  would  permit,  with  this  great 
crime  against  our  civilization  and  against  our  destinies. 

I  feel  that  this  has  not  been  done  in  the,  proposition  which  is  presented,  and  I  shall 
feel  in  honor  bound  to  register  my  dissent  from  the  proposition  to  place  any  such  tem- 
porizing expedient  in  the  Constitution  of  the  Statei  of  Virginia.  (Applause.) 

Mr.  Robertson:    Mr.  President  and  gentlemen  of  the  Convention,  I  do  not  believe 
there  is  any  man  on  this  floor  that  rises  with  more  regret  than  I  do  on  this  occasion. 
I  recognize  as  well  as  any  man  does  the  force  of  a  majority  and  that  force  which 
grows  out  of  the  differences  of  friend  from  friend.    There  is  no  man  who  dislikes  to 
differ  with  his  friend  more  than  I  do;  but  I  am  placed  in  the  imfortunate  position  of 
not  only  differing  from  my  friend  from  Norfolk,  who  has  just  preceeded  me,  but  also 
from  the  distinguished  gentleman  from  Campbell  who  opened  the  debate  on  this  oc- 
casion.   While  I  feel  compelled  to  vote  for  the  amendment  offered  by  the  gentleman 
from  Norfolk,  I  consider  it  due  to  myself  and  to  this  Convention  to  state  my  reasons 
for  doing  so.    I  am  not  a  Republican,  and  I  do  not  desire  to  be  considered  a  Repub- 
lican.   I  believe  that  a  great  many  assumptions  have  been  made  here — honestly  made, 
because  I  give  to  every  man  credit  for  the  honesty  which  I  claim  for  myself — with 
reference  to  what  we  came  here  for.    I  do  not  understand  that  the  people  of  Virginia, 
when  they  called  together  this  Convention,  told  us  in  specific  terms  what  we  were  to 
do.    They  commissioned  us  to  come  here  and  sit,  in  Convention  assembled,  to  decide 
what  was  for  the  best  and  highest  interests  of  this  Commonwealth.    There  was  no 
particular  question,  whether  connected  with  the  suffrage  or  economical,  that  we  came 
here  to  consider.    A  suggestion  was  made  here  the  other  day  which  seemed  to  me  to 
have  a  great  deal  of  truth  in  it.    It  was  made  by  my  colleague  from  Craig.    He  said 
that  we  had  been  here  for  ten  long  months  attempting  to  do  an  illegal  thing  by  some 
legal  method.    I  do  not  believe  that  the  people  of  Virginia  sent  us  here  for  any  such 
purpose.    I,  for  one,  desire  to  enter  my  protest  against  the  representation  that  the 
best  people  of  Virginia  sanction  any  such  thing  as  this  understanding  clause,  whether 
it  lasts  for  a  month,  six  months  or  a  year.    It  is  wrong  in  principle,  and  therefore  it 
ought  to  be  spewed  out  of  our  mouths.    If  we  cannot  get  rid  of  the  negro  vote  except 
by  resorting  to  such  methods  as  this,  I  say  better,  far  better,  \el  us  keep  the  negro 
vote.    I  am  not  going  into  the  history  of  this  question.    It  is  easy  to  appeal  to  race 
prejudice.    It  does  seem  to  me  that  the  very  fact  that  we  recognize  that  we  are  the 
superior  race  ought  to  make  us  hesitate  a  long  time  before  we  decide  to  do  an 
injustice  to  the  inferior  race.    So  far  as  I  am  concerned,  throughout  my  life  I  have 
always  felt  more  impelled  to  be  just  to  the  man  who  is  beneath  me  than  to  the  man 
who  is  my  equal  or  my  superior.    Here  we  have  this  poor,  dull,  docile  race  of  crea- 
tures, who  certainly  did  not  bring  themselves  here.    We  excuse  ourselves  for  having 
them'  by  saying  that  somebody  else  brought  tliem  to  this  country.    Whoever  brought 
them,  our  ancestors  purchased  them..    They  used  them  as  slaves.    During  the  terrible 
conflict  of  the  Civil  War  we  had  these  negroes,  who  were  then  in  slavery,  and  they 
stayed  by  our  women  and  children  and  defended  our  homes  while  our  men  were  at  the 
front.    That  certainly   ought  to  make  us  hesitate   and  pause  before  we  resort  to 
doubtful  means  to  get  rid  of  their  vote.    I  do  not  care  to  go  into  the  merits  of  this 
matter.    You  can  all  see  it  as  plainly  as  I  do.    Whatever  we  may  say  about  it,  we 
know  perfectly  well— and  I  do  not  care  who  hears  me  say  it— that  if  the  negro  race 
did  not  exist  this  so-called  understanding  clause  would  never  have  been  thought  of. 
Now   what  does  that  mean?    I  do  not  believe  there  is  any  man  on  this  floor  who 


DEBATES  OF  THE  COjSTSTITUTIOJs^AL  CO^^VEXTION  OF  VIEGimA. 


2993 


himself  would  be  willing  to  do  dirty  work  for  the  purpose  of  keeping  negroes  off  the 
registration  books.  You  gentlemen  know  what  this  m.eans  as  well  as  I  do.  There  is 
no  use  in  trying  to  disguise  it  in  oratory  or  by  appealing  to  patriotism.  We  all  know, 
in  the  depths  of  our  hearts,  whatever  our  motives  may  have  been,  that  the  reason  we 
have  put  this  understanding  clause  here  at  all  is  that  we  expect  these  registrars  to 
favor  the  white  man  as  against  the  negro. 

The  gentleman  from  Norfolk  complains  of  it  because  he  says  it  has  not  the  word 
"efficiency" .  drawn  across  it.  I  intend  to  vote  to  strike  it  out,  not  because  it  is  not 
efficient,  but  because  I  do  not  think  it  ought  to  be  in  the  Constitution  at  all.  Here  is 
a  body  of  one  hundred  Virginians  in  Constitution  Convention  assembled,  and  this  is 
the  poor,  pitful  result  that  we  present  to  the  world.  The  best  thing  we  can  do  to 
get  around  the  Fifteenth  Amendment  is  to  appoint  men  in  every  county  who  will  use 
favoritism  towards  the  white  man  as  against  the  black  man.  There  are  thousands 
upon  thousands  of  white  men  in  our  mountains  who  can  neither  read  nor  understand 
this  Constitution,  whom  these  gentlemen  are  willing  to  have  vote,  and  who  would  not 
be  eligible  to  vote  under  the  provisions  of  this  Constitution,  if  this  temporary  under- 
standing clause  is  properly  administered.  The  very  gentlemen  who  have  gotten  up 
on  this  floor  and  said  that  we  should  have  more  stringent  laws  v/ith  reference  to 
bribery  say,  in  one  breath,  "  for  God's  sake  do  not  let  us  interfere  with  the  exercise 
of  manhood  suffrage,  and  in  the  next  breath  they  say,  "  We  must  have  more  stringent 
laws  to  keep  these  cattle  from  being  bought.  Now,  gentlemen,  that  is  all  there  is  to 
it.  I  do  not  want  to  say  anything  further  about  this  matter.  I  do  not  want  to  be 
considered  as  impugning  or  attacking  the  motives  of  any  man  who  differs  from  me; 
but  I  would  consider  myself  recreant  to  my  duty  as  a  man,  I  would  consider  myself 
recreant  to  my  duty  as  a  citizen,  and  to  my  duty  to  my  children  and  my  State  if  I  did 
not  say,  in  this  public  way,  what  I  honestly  believe  about  this  measure. 

Gentlemen,  although  I  know  that  nothing  I  will  say  v/ill  change  one  single  vote,  1 
have  said  what  I  say  because  I  want  you  to  understand  that  I  cannot  vote  for  it, 
that  I  will  not  vote  for  it  here  now  nor  anywhere  else.  (Applause.) 

Mr.  Wysor:  Mr.  President,  the  Convention  will  see  that  there  is  qute  a  difference 
between  the  tv/o  gentlemen  who  have  just  addressed  this  body  (Mr,  TEom,  of  Norfolk, 
and  Judge  Robertson,  of  Roanoke).  The  gentleman  from  Norfolk  (Mr.  Thorn)  moves 
to  strike  out  the  understanding  clause,  because  it  is  temporary.  He  wants  a  perma- 
nent understanding  cause.  The  gentleman  from  Roanoke  (Judge  Robertson)  wants 
to  strike  out  the  understanding  clause  because  he  is  against  an  understanding  clause. 
The  gentleman  from  Norfolk  has  at  last  come  to  substantially  the  plan  I  advocated  in 
the  Convention  for  a  long  time.  I  believe  I  originated  the  idea  that  a  difference 
should  be  made  between  the  present  voter  and  the  future  voter.  I  wanted  to  put  a 
capitation  tax  on  the  present  voter  and  a  capitation  tax  and  an  educational  qualifica- 
tion on  the  future  voter,  and  if  the  gentleman  from  Norfolk  succeeds  in  striking  out 
the  .understanding  clause  that  object  will  be  accomplished.  He  v/ill  have  come  sub- 
stantially to  my  plan  then,  which  for  six  or  eight  months  he  has  declared  to  be  alto- 
gether inefficient. 

The  gentleman  from  Norfolk  will  pardon  *me  if  I  say  I  think  he  has  been  very 
much  enamoured  of  his  original  plan,  which  is  called  the  majority  plan.  That  was 
the  plan  imposing  upon  this  State  a  permanent  understanding  clause  a  clause  that 
lasts  as  long  as  the  Constitution  lasts,  a  clause  which  requires  the  voters  to  explain 
.the  duties  of  every  officer  for  whom  they  might  be  called  upon  to  vote,  a  clause  that 
was  capable  of  the  most  fraudulent  administration,  a  clause  which  the  people  of  this 
Commonwealth  repudiate  from  the  mountains  to  the  sea;  and  yet  the  gentleman  from 
Norfolk  (Mr.  Thom)  still  urges  that  as  the  proper  plan  to  be  adopted.  I  stand  here 
to  say  that  the  people  of  his  own  city  do  not  endorse  it,  or  advocate  it.  It  is  true 
that  in  the  last  gubernatorial  election  the  Governor  was  elected,  but  his  majority  would 
have  been  larger  if  that  plan  had  never  been  offered  in  the  Convention. 


2994 


DEBATES  OF  THE  CONSTITUTION'AL  CONVENTION"  OF  VIRGINIA. 


I  want  to  call  your  attention  to  the  inconsistency  of  the  gentleman  from  Norfolk 
city  (Mr.  Thom).  He  says  he  wants  the  permanent  understanding  clause,  one  that  will 
last  as  long  as  the  Constitution  lasts,  and  that  it  is  the  only  plan,  in  his  judgment,  that 
is  efficient.  He  stands  before  this  Convention  and  is  unwilling  to  take  the  tetoporary 
understanding  clause  to  relieve  his  people.  If  the  permanent  understanding  clause  will 
relieve  them  altogether,  then  certainly  the  temporary  understanding  clause  will  relieve 
them  for  a  while.  He  describes  his  people  as  being  in  a  desperate  situation,  and  yet 
he  will  not  hold  out  his  hand  to  give  them  what  he  callsi  efficient  relief,  a  relief  forever, 
he  won't  give  them  any  relief.    Is  not  that  the  positon  he  takes? 

Now,  let  us  review  this  suffrage  matter  a  little  while.  Three  plans  were  reported 
by  the  Suffrage  Committee,  of  which  I  had  the  honor  to  be  a  member,  to  the  Conven- 
tion. The  gentleman  from  Norfolk  (Mr.  Thom)  headed  the  majority  of  the  committee 
T\ith  a  permanent  understanding  clause.  The  gentleman  from  Campbell  (Mr.  Daniel) 
headed  a  large  minority  with  a  temporary  understanding  clause,  and  the  gentleman 
from  Pulaski  was  altogether  by  himself  in  his  report  without  any  understanding  clause. 
After  these  reports  got  to  the  Convention  the  Daniel  plan  was  amendeld  by  Mr.  Glass. 
He  made  a  material  amendment  to  the  understanding  clause.  It  then  became  known 
as  the  Glass  plan.  The  understanding  clause  was  copied  from  the  Mississippi  Consti- 
tution. Senator  George  is  said  to  be  its  author.  All  of  these  different  plans  were  re- 
ferred to  the  Democratic  conference,  where  they  were  discussed.  After  long  discussion 
the  Glass  faction,  as  it  might  be  called,  and  the  Thom  faction,  as  it  might  be  called, 
adjourned  the  conference,  and  got  together  and  appointed  a  joint  committee,  and  that 
committee  brought  into  the  Convention  a  plan  which  was  called  the  compromise  plan. 
It  was  supporteid  by  Mr.  Thom  and  his  faction.  It  was  supported  by  Mr.  Glass  and  his 
faction.  In  this  compromise  plan  the  understanding  clause  extended  to  the  year  1909. 
The  Daniel  plan  as  am.ended  by  Mr.  Glass  had  an  understanding  clause  ending  in  1903, 
and  in  the  compromise  he  extended  the  period  to  m.eet  the  views  of  the  gentleman  from 
Norfolk  up  to  1909. 

Mr.  Thom:  Inasmuch  as  there  is  no-  record  of  the  proceedings  of  the  conference  or 
of  the  committee  in  reference  to  that  compromise  plan,  except  the  record  that  is  now 
being  made,  I  would  like  to  have  the  gentleman  a  little  more  accurate  in  his  statements. 

Mr.  Wysor:    I  will  state  it  accurately. 

Mr.  Thom:  You  stated  that  the  compromise  plan  provided  for  an  understanding 
clause  that  would  continue  until  1909.  That  compromise  plan  also,  however,  contained 
a  provision  that  in  1908  the  Legislature  should  have  the  right  to  submit  to  the  people  a 
question  as  to  whether  it  should  be  continued  or  otherwise. 

Mr.  Wysor:  I  was  just  going  to  state  that;  you  broke  in  on  me  right  in  the  middle 
of  a  sentence.  It  had  a  provision  in  it  that  in  1908  the  Legislature  might  submit  to  the 
people  th^  question  as  to  whether  they  should  continue  the  understanding  clause  in 
force  after  1909. 

I  want  to  explain  my  position.  I  have  never  been  in  favor  of  an  understanding 
clause.  I  think  it  is  due  to  myself  and  the  gentlemen  who  voted  with  me  on  that  occa- 
sion to  explain  my  position  in  this  regard.  Being  confronted  by  what  I  thought  was  the 
greatest  evil  that  could  be  inflicted  upon  this  State,  to-wit:  the  plan  of  the  gentleman 
from  Norfolk  substantially,  I  made  a  motion  in  Convention  to  limit  the  operation  of  the 
understanding  clause  until  1904.  I  do  not  stand  here  to  say  that  I  am  the  author  of  the 
plan  the  Conve(ntion  has  concluded  to  adopt,  but  I  do  say  that  my  amendment  was  the 
death  blow  to  the  compromise  plan  of  the  Thom  and  Glass  factions,  and  I  am  glad  I  in-= 
flicted  it.  I  have  been  against  an  understanding  clause  all  the  time.  I  have  made  argu- 
ments against  it;  but  in  order  to  prevent  the  passage  of  the  compromise  plan,  which 
was  substantially  the  permanent  understanding  clause,  it  was  necessary  for  me  to  make 
that  motion. 

If  I  had  a  list  of  their  names  at  hand,  I  would  be  glad  to  embody  in  this  speech  the 
names  of  m^y  compatriots  who  joined  me  in  saving  the  State  from  the  evils  of  a  per- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


2995 


raanent  understanding  clause;  who  took  the  present  plan  as  the  lesser  of  two  evils,  and 
prevented  the  combined  Thorn  and  Glass  factions  from  fastening  the  compromise  plan 
upon  the  State,  the  evils  of  which  would  have  been  beyond  calculation.  I  told  the  Con- 
ference that  if  it  would  adopt  that  amendment  I  would  support  the  plan  as  amended,  and 
I  intend  to  support  it  in  this  Convention  and  before  the  p?ople.  I  am  merely  stating 
these  facts  because  I  want  it  to  appear  exactly  how  I  stood  in  this  matter. 

Mr.  Glass:  Mr.  President,  inasmuch  as  there  appears  to  be  a  disposition  h:re  to 
tell  everything  that  occurred  in  the  Democratic  Conference,  in  deference,  to  those  gen- 
tlemen who  stood  with  me  in  the  advocacy  of  what  was  known  as  the  Glass  plan,  I  am 
sure  my  frie,nd  from  Pulaski  will  be  willing  to  admit  the  accuracy  of  this  statement — 
that  not  one  of  those  gentlemen  nor  myself  ever  conceded  anything  to  the  permanent 
understanding  clause  until  my  plan  was  loaded  down  with  a  property  qualification,  and 
it  was  a  choice,,  as  we  conceived,  between  the  property  qualification  and  the  permanent 
understanding  clause. 

Mr.  Wysor:  Your  time  to  object  to  what  took  place  In  the  Democratic  conference 
was  when  the  gentleman  from  Norfolk  (Mr.  Thom)  asked  leave  just  now  to  incorporate 
into  the  proceedings  a  speech  made  by  him  in  the  conference,  and  which  it  took  him 
three  nights  to  deliver.  Purtherm.ore,  the  conference  abrogated  the  rule  of  secrecy,  and 
took  the  aye  and  nay  vote,  and  allowed  the  vote  to  be  published.  Everything  done  in 
the  conference  was  made  public  througli  the  paper. 

Mr.  Glass:  My  friend  must  not  think  that  I  am  objecting  to  anything  he  said.  I 
am  not  objecting  to  anything  he  has  said,  but  I  only  want  him  to  say  a  little  more  on 
that  line. 

Mr.  Wysor:  I  say  to  my  friend  that  his  time  to  object  to  disclosure  of  matters  done 
in  conference  was  when  the  gentlem^an  from  Norfolk  asked  leave  and  obtained  it  to  in- 
corporate his  three  nights'  speech  in  the  conference  in  the  proceedings  of  this  Con- 
vention. I  made  a  speech  in  the  conference  v/hich  took  me  two  nights  to  deliver,  but  I 
was  not  V7is9  enough  to  have  a  stenographer  present  to  take  it  down,  as  did  the  gentle- 
man from  Norfolk.  If  I  had  that  "speech  here  I  would  have  it  incorporated  into  the 
proceedings  and  printed  in  the  Dispatch,  so  that  it  might  go  down  to  posterity  with  the 
speech  of  the  gentleman  from  Norfolk. 

The  gentleman  from  Lynchburg  says,  that  he  yielded  for  fear  of  a  property  qualifi- 
cation. He  may  have  done  so;  there  is  no  doubt  about  his  yielding;  he  made  a  speech 
in  favor  of  the  compromise  plan,  and  therefore  against  the  plan  he  now  advocates  along 
with  others  and  myself;  but  I  don't  think  there  was  ever  any  danger  of  a  property 
qualification  being  put  into  the  Constitution.  There  were  a  number  of  men  using  that 
as  a  means  to  accomplish  some  other  purpose  with  reference  to  the  suffrage  question. 
It  was  well  understood  that  members  during  parliamentary  tactics  that  were  taking 
place  in  the  conference  were  not  at  all  times  voting  their  real  sentiments.  Now,  hav 
ing  come  to  that  understanding  clause  under  these  circumstances  I  intend  to  support  it 
in  good  faith.  I  want  to  say  to  the  Convention  that  if  the  plan  of  the  gentleman  from 
Norfolk  city  had  been  adopted  by  the  Democratic  conference,  while  I  cannot  say  what 
niy  vote  would  have  been,  I  would  not  have  gotten  up  in  Convention  and  made  a  speech 
against  it,  because  the  adoption  of  it  by  the  Democratic  conference  would  have  great 
weight  with  me,  though  I  do  not  consider  myself  bound  by  the  action  of  the  conference. 

I  never  did  oppose  an  understanding  clause  t)ecause  I  thought  it  was  unconstitu- 
tional on  its  face,  but  because  I  thought  it  might  be  unfairly  administered,  and  that 
in  its  administration  it  might  be  held  to  be  unconstitutional;  I  opposed  it  because 
I  thought  a  simpler  plan  would  accomplish  the  purpose.  I  thought  a  capitation  tax 
on  the  present  voter  and  a  capitation  tax  and  an  educational  qualification  for  the 
future  voter  would  accomplish  all  that  was  needed  in  the  Black  Belt.  The  gentleman 
from  Norfolk  city  (Mr.  Thom)  is  mistaken  in  saying  that  this  plan  will  not  be  efficient 
in  cutting  off  the  incompetent  vote.  Look  at  it  just  for  one  moment.  It  has  first  a 
residential  clause  of  two  years  in  the  State,  six  months  in  the  county,  and  three 


2996  DEBATES  OE  TlIE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

months  in  the  precinct,  so  that  the  migratory  and  wandering  classes  will  be  excluded. 
It  puts  on  the  permanent  roll  the  soldiers  and  their  sons.  It  puts  on  the  roll  all 
persons  who  have  $333  worth  of  property.  Then  it  says  that,  as  there  are  still  a 
number  of  people  out  of  the  electorate,  those  people  must  read  and  understand  any 
portion  of  the  Constitution  or  if  they  cannot  read  they  must  be  able  to  give  a  reason- 
able explanation  of  any  portion  of  it  when  read  to  them.  I  want  the  Convention  to 
understand  that  up  to  January  1,  1904.  the  plan  under  consideration  is,  substantially 
the  same  as  the  plan  of  the  gentleman  from  Norfolk.  I  want  to  show  you  what  posi- 
tion the  gentleman  from  Norfolk  city  is  in.  Up  to  this  point  the  plans  are  the  same; 
yet  he  will  not  take  the  present  plan  because  it  does  not  in  his  judgment  give  com- 
plete relief.  Then  we  have  an  educational  qualification.  The  voter  has  to  pay  a  poll 
tax,  prepare  his  own  application  and  cast  his  own  ballot.  The  plan  virtually  elimi- 
nates the  incompetent  from  politics.  There  is  no  question  about  it;  and  yet  the 
the  gentleman  from  Norfolk  says  he  will  not  support  this  plan  because  it  is  not 
efficient,  and  because  you  do  not  continue  the  understanding  clause,  though  it  is  a 
plan  that  is  capable  of  fraudulent  administration  that  might  be  used  against  whites 
as  well  as  against  blacks.  I  say  that  is  the  position  the  gentleman  from  Norfolk 
occupies  before  this  body.  His  argument  is  that  he  wants  to  be  liberated  intelligently. 
He  says  that  he  is  not  able  to  think  upon  public  issues  at  present  on  account  of  the 
negro  vote.  Well,  I  can  think.  The  gentleman  from  Norfolk  reminds  me  of  the  old 
woman  who  struck  a  man  in  the  head  with  a  brickbat  and  when  asked  why  she  did 
it  the  only  explanation  she  would  give  for  it  was  that  she  wanted  to  "  ease  her 
mind."  That  is  the  way  of  the  gentleman  from  Norfolk.  He  wants  to  knock  Vir- 
ginia in  the  head  with  a  permanent  understanding  clause,  and  the  only  reason  he 
gives  is  that  he  wants   to  "  erase  his  mind."  (Laughter.) 

I  say  that  we  have  faithfully  tried  to  ease  his  mind.  We  have  given  him  a  plan 
that  will  relieve  the  Black  Belt,  and  we  are  as  satisfied  that  we  have  done  so  as 
well  as  we  can  be  about  anything  not  yet  actually  accomplished.  It  is  patent  to 
every  man  that  the  Black  Belt  will  be  relieved  speedily  and  the  great  majority  of  the 
men  representing  the  Black  Belt  in  this  Convention  have  voted  for  this  plan.  The 
gentleman  from  Norfolk  and  those  gentlemen  who  follow  him  constitute  the  minority 
of  the  representatives  of  the  Black  Belt.  I  want  to  say  something  about  the  white 
section.  We  have  made  a  sacrifice  for  the  Black  Belt.  I  v^ant  the  Black  Belt  to  be 
impressed  with  that  fact.  We  didn't  need  any  understanding  clause,  and  we  didn't 
need  anything  other  than  manhood  suffrage.  We  have  our  people  under  this  under- 
standing clause  for  the  benefit  of  the  Black  Belt.  Is  not  that  making  a  sacrifice  for 
you?  I  think  you  ought  to  appreciate  it;  that  is  what  we  have  done,  and  I  say  it 
will  relieve  you.  But  nothing  will  ever  get  the  gentleman  from  Norfolk  away  from 
his  own  plan.  He  became  enamoured  of  it,  and  he  is  enamoured  of  it  even  after  it 
is  dead.    It  is  beautiful  to  him  even  in  deatli.    It  is  his  beautiful  Annabel  Lee, 

"  And  neither  the  angels  in  heaven  above 
Nor  the  demons  down  under  the  sea 
Can  ever  dissever  his  soul  from  the  soul 
Of  the  beautiful  Annabel  Lee." 

(Laughter  and  applause.) 

Mr.  Mcllwaine:  Mr.  President,  I  differ  very  essentialy  from  both  of  the  under- 
standing plans.  I  am  thankful  that,  as  we  must  take  one  of  them.,  we  have  not  got 
to  take  the  permanent  understanding  clause.  I  regret,  excedingiy,  sir,  that  v/e 
have  to  take  it  at  all.  I  have  given  my  reasons  in  another  arena.  I  intended  to 
have  spoken  somewhat  at  length  at  this  time;  but  if  the  Convention  will  allow  me  to 
furnish  the  stenographer  with  a  copy  of  the  address  which  I  made  before  the  confer- 
ence, and  thus  enable  me  to  put  myself  on  record  I  will  forbear  any  further  remarks. 
The  remarks  of  Mr.  Mcllwaine,  above  referred  to,  are  as  follows: 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


299: 


Mr.  Chairman:  While  I  feel  sure  that  the  views  I  am  about  to  present  will  meet 
with  a  cordial  response  from  many  members  of  the  Convention  and  from  the  great 
mass  of  intelligent  citizens  of  Virginia,  I  fear  they  may  arouse  the  antagonism  of 
gentlemen  who  have  alrea.dy  declared  themselves  hostile  to  the  enactment  of  principles 
which  I  regard  essential  to  the  welfare  of  society  and  fundamental  to  the  moral, 
educational  and  economic  progress  of  the  Commonwealth. 

I  desire,  therefore,  at  the  beginning  of  my  remarks  to  assure  those  v/ho  differ 
with  me  that  the  viev%'s  I  entertain  have  been  arrived  at  after  large  observation,  careful 
investigation,  and  prolonged  and  profound  thought,  and  to  invoke  their  candid, 
patient  and  thoughtful  attention  to  what  I  have  to  say. 

I  shall  endeavor  to  be  entirely  impersonal,  and  treat  each  question  discussed  with 
absolute  fairness.  If  I  err  in  either  respect,  it  will  be  from  oversight,  and  not  with 
design.  I  have  no  object  in  appearing  before  you  but  the  ascertainment  and  enforce- 
ment of  truth,  and  to  aid  in  the  v/ise  and  just  settlement  of  the  suffrage  question. 

I  do  not  stand  here,  Mr.  Chairman,  as  a  theorist,  but  as  a  man  of  practical  affairs, 
who  has  had  large  dealings  vrith  his  fellow-men,  and  who  looks  with  a  keen  eye  at 
conditions  as  they  actually  exist,  and  with  an  earnest  desire  to  see  them  improved. 

It  will  be  readily  granted  by  everj-  member  of  the  Convention  that  the  purpose 
which  has  brought  us  together  is  to  frame  a  Constitution  adapted  to  the  needs  of  the 
people  of  Virginia — an  instrument  which  when  completed  and  adopted  as  the  organic 
law  of  the  Commonwealth,  shall  embody  those  seminal  principles  which  are  fitted 
in  their  effective  application  to  promote  the  welfare  of  every  dweller  within  our 
bounds,  and  to  restore  and  perpetuate  the  honor  and  glory  of  the  old  State. 

It  will  also,  doubtless,  be  conceded,  that  in  order  to  attain  this  high  object,  it  is 
necessary  to  study  the  real  conditions  existing:  not  in  any  one  locality  to  the  exclusion 
of  others:  not  merely  with  reference  to  one  interest  without  regard  for  others;  not 
with  a  narrow  and  sectional  intent,  but  with  a  broad,  enlightened  and  patriotic  spirit, 
infused  and  dominated  by  an  intense  and  supreme  desire  for  the  rehabilitation  of  our 
lost  fortunes,  the  reestablishment  of  our  ancient  renov>-n,  and  the  placing  of  our  old 
Commonwealth  on  an  enduring  foundation  of  virtue,  intelligence  and  economic  strength. 

Let  me  recall  your  attention.  :\Ir.  Chairman  and  gentlemen,  to  the  fact  that  we 
are  here  to  legislate  in  the  interest  of  nearly  two  millions  of  people,  about  two-thirds 
of  whom  are  of  Anglo-Saxon  descent:  that  while  with  inconsiderable  exceptions  they 
are  natives  of  the  soil  they  inhabit  and  inheritors  in  common  of  an  honorable  history, 
they  differ  widely  in  many  respects — some  dwelling  by  the  waters  of  the  sea,  and 
others  in  mountain  fastnesses;  some  inhabiting  cities  and  towns,  and  others  the  rural 
districts;  some  following  agricultural,  other  pastoral,  other  mechanical,  others 
mercantile,  others  professional  pursuits,  while  a  large  portion  of  the  population  live 
by  daily  bodily  toil.  Some  are  educated  and  intelligent,  others  are  ignorant  and 
stupid;  some  are  cultured  and  refined,  others  are  brutal  and  immoral;  some  are  well- 
to-do,  a  few  wealthy,  others  are  poor,  and  the  majority  possess  but  small  means. 

Here,  then,  we  have  briefly  and  imperfectly  the  problem  given  us  for  solution.  We 
are  to  legislate  for  all  these  classes,  and  to  meet  all  these  conditions,  in  such  manner 
that  every  citizen,  of  whatever  locality  or  circumstances,  may  not  only  receive  even- 
handed  justice,  but  find  in  the  organic  law  of  this  State  and  the  civic  and  political 
arrangements  emanating  therefrom  incentive  and  inspiration  to  elevate  his  character, 
enlarge  his  views  of  life  and  improve  his  economic  and  social  status.  Any  lower  appre- 
hension of  th?  work  before  us  is  fatally  defective,  and  destructive  of  the  great  end  to  be 
attained.  Keeping  steadily  in  view  these  high  and  noble  objects  in  tlie  construction  of 
every  portion  of  the  instrument  we  are  now  framing,  we  will  present  to  the  people  of 
Virginia  a  Constitution  adapted  to  their  needs,  and  which,  in  its  operation,  will  prove  a 
benediction  to  all  parts  of  the  Commonwealth. 

It  will  readily  be  gathered  from  what  has  now  been  said  that  I  do  not  stand  here  as 
an  advocate  of  any  particular  section,  or  of  any  sectional  restrictive  measures  in  re- 


2998  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 


gard  to  suffrage.  Restriction  in  suffrage  is  demanded — imperatively  demanded — by  the 
exigencies  of  the  situation  in  the  Southside,  from  which  I  come,  but  no  less  in  Tidewater 
and  the  Piedmont  region  and  the  Valley  and  the  Southwest  and  Northern  Virginia.  The 
need  is  universal,  not  only  in  the  country,  but  in  the  cities  and  towns;  not  only  among 
the  blacks,  but  among  the  whites,  in  order  to  deliver  the  State  from  the  burden  of  illi- 
teracy and  poverty  and  crime,  which  rests  on  it  as  a  deadening  pall,  sapping  its  ener- 
gies, corrupting  the  sources  of  political  and  social  vitality,  and  lowering  it  in  the  eyes 
of  its  own  people  no  less  than  in  the  view  of  those  who  are  without. 

Since  the  assembling  of  this  Convention  it  has  been  acknowledged  again  and  again 
by  gentlemen  from  different  sections  of  the  State  that  politics  in  Virginia  are  corrupt; 
that  there  is  a  large  purchasable  element,  especially  in  the  white  sections;  that  voters 
are  bought  and  sold;  and  that  generally  there  is  no  assurance  that  the  will  of  the  elec- 
tors is  truly  expressed  by  the  election  returns.  In  the  contested  election  case  lately 
ventilated  before  this  Convention  you  have  an  object  lesson  of  how  things,  are  not  in- 
frequently managed,  not  only  in  this,  but  in  other  sections  of  the  Commonwealth.  I  am 
informed  that  in  the  Ninth  Congressional  district  there  has  hardly  been  a  national  elec- 
tion in  twenty  years  in  which  large  fraud  has  not  been  charged.  The  same  thing  is 
perhaps  true,  or  nearly  so,  in  the  Second  district,  the  Ninth  being  in  the  extreme  west- 
ern and  the  Second  in  the  extreme  eastern  portion  of  the  State,  and  each  to  a  greater 
or  less  extent  representing  the  condition  of  things  throughout  the  Commonwealth.  The 
Black  Belt  has  no  monoply  of  wickedness — political,  social,  or  civic — but  it  prevails 
more  or  less  throughout  our  borders;  and  this  being  true,  the  remedy  to  be  applied 
must  be  adapted  to  meet  conditions  and  bring  about  a  cure  wherever  the  evil  is  found. 

Let  us  make  a  more  elaborate  and  thorough  diagnosis  of  the  existing  state  of  things, 
that,  understanding  the  disease,  we  may  know  how  to  adopt  remedial  agencies. 

I  suppose  that  there  is  scarcely  a  member  of  this  Convention  who  is  not  glad  that 
it  holds  its  sittings  in  our  beautiful  capital,  the  city  of  Richmond,  of  which  we  are 
justly  proud,  and  as  we  meet  its.  citizens,  and  are  welcomed  into  their  hospitable  homes, 
and  sit  with  them  in  their  houses  of  Vvorship,  and  visit  their  schools  and  colleges,  and 
see  what  a  great  work  is  being  done  in  education  and  charity,  we  are  fain  to  exclaim: 
"  Surely  this  is  the  abode  of  virture,  of  intelligence,  of  religion  "  and  so  it  is  s.een  from 
the  point  of  view  most  obvious  to  us,  but  let  it  be  noted  that  Richmond,  in  common  with 
other  cities,  has  another  and  a  darker  side,  not  only  a  horde  of  ignorant  and  corrupt 
negroes,  but  no  inconsiderable  mass  of  depraved  and  vicious  whites. 

Go  down  into  the  lower  parts  of  the  city,  and  you  v/ill  behold  a  different  spectacle 
from  that  which  greets,  our  eyes  in  our  usual  perambulations,  for  there  you  will  behold 
not  a  few  specimens  of  our  white  fellow-citizens  that  will  awaken  at  once  your  pity  and 
disgust.  It  is  this  element  which  constitutes  a  menace  to  society,  which,  under  the 
manipulation  of  corrupt  political  leaders,  constitutes  the  balance  of  power  in  elections, 
and  by  which  the  voice  of  intelligent  and  upright  citizens  is  stifled  at  the  polls,  and  in- 
comxpetent  and  bad  men  are  put  into  office.  It  is  not  the  negro  vote  which  works  the 
harm,  for  the  negroes  are  generally  Republicans,  but  it  is  the  depraved  and  incompe- 
tent men  of  our  own  race,  who  have  nothing  at  stake  in  government,  and  who  are  used 
by  designing  politicians  to  accomplish  their  purposes,  irrespective  of  the  welfare  of  the 
community.  No  one,  therefore,  is  surprised  to  learn  that  at  least  one  department  of 
the  city  government  is  in  an  equivocal  position,  that  certain  of  its.  officials  have  been 
accused  in  the  public  prints  of  receiving  bribes,  and  that  some  of  its  thoughtful  and 
leading  citizens  are  unwilling  to  trust  its  people  with  the  poor  privilege  of  electing  their 
own  magistrates. 

But  Richmond  is  not  alone  in  this  condemnation.  The  state  of  things  in  Norfolk  is 
said  to  be  even  and  far  worse,  so  that  the  city  is  now,  and  has  been  for  years,  dominated 
by  a  political  ring  or  rings,  which  have  contributed  to  the  lawlessness  and  violence  of 
the  population  to  an  intolerable  degree.  I  do  not  wonder  that  the  gentleman  from  that 
city  (Mr.  Thom)  cries  out  with  protracted  utterance  and  in  piteous  tones  for  help,  while 


DEBATES  OE  THE  COXSTITrTIOXAL  COXYEXTIOX  OE  TIEGIXIA. 


2999 


I  think  that  he  makes  a  capiial  and  destrucuTe  blunder  in  supposing  that  the  elimina- 
tion of  the  negro  rote  T=rill  bring  relief.  He  is  aiming  to  heal  the  hurt  of  the  daughter 
of  his  people  slightly,  for  there  is  a  mass  of  vicious  and  incapable  ^vhites  which  must 
be  debarred  from  suffrage  before  it  will  be  possible  for  a  better  state  of  things  to  exist. 
TiTiat  is  true  in  this  respect  of  Richmond  and  Norfolk  doubtless  finds  its  counterpart  in 
other  cities.  If  the  concensus  of  opinion  of  delegates  on  this  floor  from  cities  of  the 
first  class  were  gathered,  it  would  probably  be  unanimous  in  support  of  this  view. 

Soon  after  my  election  to  the  position  which  I  hold  among  you,  I  received  a  letter 
from  a  friend — one  of  my  old  pupils — now  a  prominent  lawwer  in  one  of  our  mountain 
counties,  who  wrote  in  substance  as  follows: 

TTe  have,  in   county  an  ignorant  and  vicious  white  element  in  our  population, 

which  is  as  destructive  of  purity  in  politics,  and  as  injurious  to  good  government,  as 
the  negroes  are  in  your  section  of  the  State. 

I  was  not  unprepared  for  this  specific  information,  having  for  the  past  twenty  years 
spent  a  portion  of  every  summer  in  this  region,  not  at  its  health  resorts,  but  among 
the  people  of  its  towns  and  counties,  my  personal  observation  coinciding  with  and  con- 
firming the  testimony  of  my  correspondent.  Moreover,  coming  nearer  home,  and  re- 
ferring to  statements  made  on  this  floor,  before  the  committees  and  in  private  confer- 
ence, the  conclusion  is  inevitable  that  in  some  of  these  counties  there  is  a  degree  of 
poverty,  illiteracy,  and  lawlessness  among  whites  which  must  be  reckoned  with  and  pro- 
vided against  if  our  organic  law  in  its  construction  and  administration  is  to  promote 
and  maintain  the  dignity  of  the  Commonwealth  and  to  accomplish  the  welfare  of  the 
people.  TVe  must  prepare  a  Constitution  equal  and  just  in  its  provisions,  impartial  in 
its  application,  and  which  shall  be  effective,  not  only  in  curtailing  the  evils  we  deplore, 
but  in  enlarging  the  intelligence,  the  virtue,  the  prosperity,  and  the  happiness  of  all  the 
people. 

In  my  honest  judgment,  the  bete  noire  which  has  confronted  this  Convention  from 
the  day  on  which  it  assembled  up  to  the  present  hour,  which  has  palsied  its  energies 
and  made  it  comparatively  inefficient  for  the  purposes  which  called  it  together,  is  the 
contention  that  it  is  our  duty,  as  far  as  possible,  to  disfranchise  every  negro,  and,  at  all 
hazards  to  enfranchise  every  white  man  in  the  Commonwealth. 

This  untenable  proposition  was  evidently  adopted  as  a  truism  by  the  Suffrage  Com- 
mittee of  this  Convention,  was  made  the  basis  of  its  conferences,  and  is  the  probable 
explanation  of  the  unsatisfactory  and  divergent  scheme  proposed  for  adoption.  Gen- 
tlemen have  been  trying  to  do  what,  in  the  nature  of  the  case  and  under  the  Constitu- 
tion of  the  United  States,  cannot  be  done  without  fraud:  and  which,  if  the  inhibition  of 
the  Constitution  did  not  prevail,  ought  not.  under  existing  conditions,  to  be  attempted. 
This  question  of  suffrage  is  broader  and  more  far-reaching  than  the  mere  matter  of 
curtailing  the  negro  vote,  imminent  and  imperative  as  this  is.  It  concerns  the  honor, 
the  welfare,  the  integrity  of  the  State  as  a  whole,  and  must  be  dealt  with  as  such. 

I  beg  now,  Mr,  Chairman  and  gentlemen,  to  ask  your  attention  to  some  specific  facts, 
gathered  not  from  personal  observation  or  from  authenic  rumor,  or  from  oral  testimony, 
but  based  on  authoritative  statistical  reports,  compiled  by  State  officials,  most  of  which 
are  in  the  hands  of  every  member  of  this  Convention,  in  support  of  my  contention  that 
in  order  to  subserve  the  interests  of  the  Commonwealth  and  to  place  its  people  on  a 
basis  of  substantial  and  enduring  prosperity,  conditions  must  be  met  and  provided  for 
in  no  single  section  of  the  State,  but  as  they  exist  throughout  its  borders.  In  order  to 
show  this  conclusively  and  beyond  contradiction.  I  have  selected  for  comparison  the 
Ninth  Congressional  District  as  a  typical  white  district,  and  the  Fourth  Congressional 
District  as  a  typical  negro  district.  I  propose  to  give  you  facts  and  figures,  and  let 
them  answer  the  question  whether  some  common,  effective  remedy  is  not  needed  for 
both,  to  cure  the  evils  found  in  each. 

I  find  the  following  facts  germane  to  this  subject,  in  regard  to  the  Ninth  District: 


DEBATES  OF  THE  COIsLSTITUTIONAL  CONVENTIOJT  OF  VIRGINIA. 


Z^^^^  ^^^^  ^^^^^       ^^^y  Whites  as  negro  voters 

and  write  ^'^  ^^'^^  ^''^^''^  ^^"^        ""^^^  ^""^  "^""^^^  ^'^^^^t  read 

and  write  ^^^"^^  ^""^  '^''^'''^^  '^^'^  ''''''  ""^^"^  ^"""^  ''^'''^^        ''''^         ^^^^^^  read 

not  read  and^write^  ^'^  ^''^^''^  '"^''^^  '^^'^         '^^^"^  ^"""^  "^""'^^  "^^^ 

(5.)  There  was  one  felony  for  the  year  1900  for  every  105  voters 

(6.)  Taxes  are  paid  at  the  rate  of  $6.62  for  every  voter. 

(7.)  Delinquent  taxes  are  due  at  the  rate  of  44  cents  for  every  voter 

(8.)  Allowance  for  jurors  paid  by  the  State  was  19.3  for  every  voter! 

(9.)  Received  into  the  penitentiary,  106;  or  one  in  every  489  voters 
(10.)    Criminal  expenses  were  $38,482.77,  or  74  cents  for  every  voter. 

Corresponding  facts  for  the  Fourth  District  are  as  follows: 

(1.)  There  are  about  1-6  less  white  than  colored  voters — that  is,  for  every  83-100 
of  a  white  voter  there  is  a  negro  voter;  or,  for  every  830  white  voters  there  are  1000 
negro  voters. 

(2.)  There  are  10.8  white  voters  who  can  read  and  write  for  one  who  cannot 
read  and  write. 

(3.)  There  are  1.6  negro  voters  who  can  read  and  write  for  one  who  cannot  read 
and  write. 

(4.)  There  are  2.7  voters  of  both  races  who  can  read  and  write  for  one  who  can- 
not read  and  write. 

(5.)    There  was  1  felony  case  in  1900  for  every  268  voters. 

(6.)    Taxes  were  paid  at  the  rate  of  $3.11  for  every  voter. 

(7.)    Delinquent  taxes  are  due  at  the  rate  of  28  cents  for  every  \oter. 

(8.)    Allowance  for  jurors  paid  by  the  State  was  9.7  cents  for  every  voter. 

(9.)    Received  into  the  penitentiary,  41;  or,  one  in  every  912  voters. 

(10.)    Criminal  expenses  were  $15,841.93,  or  42  cents  for  every  voter. 

Comparing  these  facts  with  one  another,  we  find: 


1st.  That  the  Ninth  District  has  greatly  the  advantage  of  the  Fourth  in  the 
preponderance  of  white  population;  the  proportion  of  the  former  beiag  more  than  nine 
to  one;  in  the  latter,  less  than  a  half  of  the  whole. 

2nd.  That  the  proportion  of  white  voters  who  cannot  read  and  vrite  in  the  Ninth 
district  is  more  than  twice  as  great  as  in  the  Fourth  district. 

3rd.  That  the  proportion  of  negro  voters  who  can  read  and  write  in  the  Ninth 
district  is  33  per  cent,  larger  than  in  the  Fourth  district. 

4th.  That  the  number  of  both  races  who  can  read  and  write  is  50  per  cent, 
greater  in  the  Ninth  than  in  the  Fourth  district,  in  proportion  to  the  voting  population. 

5th.  That  there  are  2i  times  more  felonies  in  proportion  to  voting  population  in 
1900  in  the  Ninth  district  than  in  the  Fourth. 

6th.  That  49  cents  more  taxes  in  proportion  to  voting  population  were  paid  per 
capita  in  the  Fourth  than  in  the  Ninth. 

7th.  That  the  delinquent  taxes  in  the  Ninth  district  are  in  excess  of  those  in 
the  Fourth  at  the  rate  of  16  cents  for  every  voter. 

8th.  That  allowance  for  jurors  paid  by  the  State  is  twice  as  large  in  the  Ninth  as 
in  the  Fourth  district. 

9th.  That  nearly  twice  as  many  in  proportion  to  the  number  of  voters  were 
received  into  the  penitentiary  from  the  Ninth  as  from  the  Fourth  district. 

10th.  That  criminal  expenses  were  nearly  twice  as  large  per  voter  in  the  Ninth 
as  in  the  Fourth  district. 

Now,  let  us  look  at  these  facts  squarely  in  the  face  and  consider  their  significance. 
Remember,  they  are  facts,  and  you  cannot  get  away  from  them.  You  have  the  evidence 
on  which  they  rest  in  your  possession,  and  no  quibbling  or  tergiversation  or  denial  will 
avail.    We  must  accept  them,  reckon  with  them,  provide  against  them. 

There  is  a  bad  state  of  things  in  intelligence,  in  morals,  and  in  economic  conditions, 
in  both  districts,  worse,  on  the  whole  in  the  Ninth  than  in  the  Fourth,  and  in  the  former 
it  is  chiefly  among  the  whites,  while  in  the  latter  mainly  among  the  negroes.  It  is  evi- 
dent that  in  both  there  are  many  who  enjoy  the  privileges  of  suffrage  who  have  no  per- 
manent interest  in  the  community  and  no  intelligent  apprehension  of  the  duties  growing 
out  of  it,  and  who  are  entirely  unfit  for  its  exercise. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


3001 


In  the  Ninth  district,  as  already  shown,  this  is  chiefly  among  the  whites;  while  in 
The  Fourth  it  is  chiefly  among  the  negroes;  but  whether- white  or  black,  they  are  equally 
unqualifitd  for  this  high  function,  and  ought  not  to  possess  it. 

It  is  contended  by  some  that  voting  is  a  right,  and  not  a  privilege;  that  it  is  in- 
alienable and  indefeasible,  and  thai  no  man  can  be  justly  deprived  of  it.  This  posi- 
tion has  been  asserted  on  this  floor;  but  it  is  evident  from  the  history  of  governments — 
the  American  Republic  in  common  with  others — that  it  cannot  be  maintained.  No  man 
ought  to  be  allowed  to  vote  who  has  not  sufficient  intelligence  to  understand  what  he  is 
doing,  and  besides  has  not  some  interest  in  the  government  which  will  induce  him  to 
vote  aright.  As  a  fact,  paupers.  Idiots,  criminals,  duelists,  women  and  minors  are  dis- 
franchised, and  the  reason  which  underlies  these  exceptions  is  the  reason  on  which  I 
insist  as  the  sufficient  ground  for  the  disfranchisement  of  those  who  have  not  some- 
thing at  stake  in  the  maintenance  of  law  and  order,  whether  they  be  of  the  Caucasian 
or  the  African  race. 

A  friend  has  furnished  me  some  extracts  from  The  Outlook,"  an  influential  jour- 
nal published  in  the  city  of  New  York,  on  this  subject,  which  seem  to  me  sound  and 
incontrovertible.    In  the  issue  of  May  24th  last  the  editor  says: 

No  man  has  a  natural  right  to  share  in  the  government  under  which  he  lives.  He 
has  a  right  to  be  protected  in  his  person,  property,  family,  reputation  and  liberty; 
and  if  the  government  afEords  such  protection,  he  has  no  ground  on  which  to  dem^and, 
as  his  right,  permission  to  participate  in  it.  Suffrage  is  a  prerogative  and  responsibility, 
and  who  shall  exercise  that  responsibility  is  to  be  determined  by  the  existing  govern- 
ment.   That  is  a  practice  justified  both  by  philosophy  and  history. 

In  the  issue  of  Juh'  27th  he  wrote  as  follows: 

The  argument  that  suffrage  is  a  natural  right  appears  to  be  specious  rather  than 
sound.  The  argument  may  be  thus  stated:  "  Xo  man  is  wise  enough  and  good  enough 
to  govern  his  fellow-man;  no  class  is  wise  enough  to  govern  another  class;  therefore 
every  man  should  share  in  the  government  of  the  State."  That  conclusion  is  a  non 
sequitur.  The  fact  that  no  man  is  wise  enough  and  good  enough  to  govern  his  fellow- 
man  does  not  warrant  the  conclusion  that  every  man  is  wise  enough  and  good  enough 
to  share  in  governing  his  fellow-man.  Suffrage  is  an  artificial,  not  a  natural  right. 
It  is  created  by,  and  dependent  upon,  law;  a  means  and  not  an  end;  and  the  condition 
upon  which  it  should  be  granted  by  those  who  have  it  not,  to  be  determined  by  the 
consideration  of  the  question.  What  conditions  of  suffrage  will  probably  secure  the 
more  stable,  just  and  free  government? 

These  principles  appear  to  me  unanswerable,  and  emanating  from  Xew  York  city, 
and  the  source  from  which  they  come,  have  special  significance  at  this  time. 

But  it  may  be  said  in  reply  to  this  contention,  that  it  makes  no  distinction 
between  the  white  man  and  the  negro;  that  the  United  States  Government  recognizes 
racial  lines  in  the  disfranchisement  of  Indians  and  Chinese,  and  that  the  negroes  ought, 
as  a  race,  to  be  deprived  of  suffrage. 

In  reply  I  beg  to  say,  that  no  member  of  this  Convention,  and  no  citizen  of  Vir- 
ginia, is  more  profoundly  convinced  than  I  of  the  intellectual  and  moral  superiority 
of  the  Anglo-Saxon  and  the  corresponding  Inferiority  of  the  African  and  American 
negro.  I  believe  that  they  are  separated  by  nature  and  the  God  of  nature  by  an 
impassable  gulf,  and  I  view  with  horror  anything  looking  towards  breaking  down  the 
social  and  domestic  barriers  naturally  and  necessarily  existing  between  them.  On 
the  other  hand,  I  do  not  hesitate  to  say  that  there  are  few  Virginians,  if  any,  who, 
from  childhood  to  mature  years,  in  times  of  slavery,  during  the  war  between  the 
States,  and  since  that  period,  have  lived  on  nearer  terms  of  kindness  and  sympathy 
and  confidence  with  the  negroes  than  I.  I  know  their  good  points;  I  appreciate  their 
weaknesses;  I  have  done,  and  shall  continue  to  do,  all  in  my  power  for  their  welfare. 
I  am  their  friend,  as  I  am  the  friend  of  the  white  man,  devoutly  desiring  the  prosperity 
and  happiness  of  both,  at  the  same  time  recognizing  the  disparity  between  them, 
1S9 — Const.  Deb. 


3002  DEBATES  OE  THE  COXSTITUTIO^TAL  COXVEXTIO^t  OF  VIRGIJsTIA. 

and  the  absolute  social  and  domestic  separation  which  must  continue  to  exist;  but, 
so  far  as  regards  the  matter  in. hand,  as  to  the  right  of  suffrage,  dealt  with  fairly  and 
squarely  under  the  domination  of  the  fourteenth  and  fifteenth  amendments  to  the 
Constitution  of  the  United  States,  there  is  no  difference.  We  may  justly  inveigh  against 
these  amendments.  We  may  denounce  them  as  the  outgrowth  of  passion  and  hate 
and  political  corruption,  but  there  they  are,  a  part  of  the  organic  law  of  the  land, 
recognized  and  sanctified  as  such  by  a  section  of  the  Bill  of  Rights  already  adopted 
by  this  Convention. 

This  being  true  beyond  contradiction,  it  is  in  order  to  ask,  as  I  now  do,  for  your 
candid  consideration,  who  is  the  more  injurious  factor  in  a  community,  an  ignorant, 
immoral,  and  lazy  white  man,  or  an  ignorant,  immoral,  and  lazy  negro?  Who  of  these 
goes  most  readily  from  vice  to  crime,  and  by  his  crime  most  frequently  darkens  the 
fair  escutcheon  of  the  Commonwealth?  Who  contributes  less  to  the  productive  energy 
of  the  State,  and  is  more  apt  to  continue  in  poverty  and  degradation?  Without  paus- 
ing for  a  reply  or  consuming  your  time  in  fine-spun  distinctions,  which  add  nothing  to 
the  elucidation  of  this  subject,  I  reply  emphatically,  and  in  view  of  what  has  already 
been  said,  both;  both  are  "injurious  factors  in  a  community;"  both  "readily  pass 
from  vice  to  crime;"  "neither  contributes  anything  to  the  wealth  and  welfare  of  the 
State."  and  as,  a  corollary,  I  add,  that  both  ought  to  be  eliminated  from  the  sovereign 
and  controlling  element  of  society,  and  have  pressure  and  incentive  brought  to  bear 
upon  them  to  elevate  themselves  and  fit  themselves  for  citizenship,  and  to  see  that  their 
children  attain  a  higher  plane  of  virtue,  intelligence,  and  economic  worth  than  they 
occupy. 

It  is  now  time  to  consider  what  are  the  qualifications  for  suffrage  which  ought 
to  be  laid  down  for  all  classes  of  our  people — in  the  east  and  the  west,  in  the  moun- 
tains and  by  the  sea,  for  whites  and  blacks  alike.  What  are  the  terms  which  are 
believed  to  be  equal  and  just  in  their  application,  and  which  will  probably  prove  effec- 
tive in  eliminating  the  evils  we  deplore,  and  in  promoting  gradually,  but  surely,  the 
permanent  welfare  of  the  people  of  the  Commonwealth? 

This  is  the  question  which  has  been  uppermost  in  the  thoughts  of  many  members 
of  the  Convention  from  the  day  of  its  assembling,  and  which  impends  at  present  and 
authoritatively  demands  a  reply,  and  to  which,  in  my  judgment,  the  gentleman  from 
King  George  (Mr.  Moncure)  has  contributed  the  nearest  approximation  to  a  correct 
answer  yet  submitted  to  the  Convention. 

If  the  facts  heretofore  stated  be  true,  and  the  principles  announced  sound  (and 
they  seem  to  be  incontrovertible),  the  answer  to  this  inquiry  is  not  far  to  seek,  and  it 
is  this: 

Let  those  citizens  of  Virginia,  not  debarred  by  other  sections  of  the  Constitution, 
who  are  assessed  with  a  poll-tax  of  $1.50  and  a  State  tax  on  property  of  the  value  of  at 
least  $150,  be  registered  and  remain  on  the  registration  list  permanently.  Before  they 
are  allowed  to  vote,  require  a  certicate  to  be  presented  to  the  officers  of  election,  show- 
ing that  these  taxes  have  been  paid  six  months  before  election.  After  January  1,  1904, 
require  every  applicant  for  registration,  in  addition  to  the  above  prerequisites,  to  pre- 
sent his  application  in  writing,  done  with  his  own  hand,  in  the  presence  of  the  regis- 
trar. Make  no  exemptions  except  of  soldiers  resident  in  Virginia  who  have  actually 
served  in  time  of  war  in  the  armies  of  some  State  of  the  Union,  or  of  the  Confederate 
States,  or  of  the  United  States.    And  the  viva  voce  vote,  and  stop. 

This  simple  prescription,  equally  administered,  will  give  us  a  clean-cut  franchise 
law,  which  will,  at  one  stroke,  lop  off  a  large  mass  of  the  incompetent  and  corrupt 
voting  population  of  the  State,  and  put  its  government  in  the  hands  of  the  intelligent, 
taxpaying  portion  of  its  citizens.  It  will  be  effective  in  ridding  us  of  the  ignorant 
and  vicious  negroes,  and  of  the  abandoned  and  worthless  whites,  and  will  insure  the 
vote  being  counted,  and  reported  as  cast. 

The  chief  objection  that  I  have  heard  urged  to  this  scheme  of  suffrage  is  that. 


DJlBATZS  of  IHZ  COXSTIiniOXAL  COXVZXTIOX  or  TIEGIXIA. 


3003 


along  with  many  stupid  and  vicious  whiles,  some  worthy  and  good  citizens  will  be 
disfranchised.  And  this  is  doubtless  true;  but  it  must  be  remembered  that  this  is 
one  of  the  necessarj-  incidents  of  organized  society,  and  that  no  citizen  has  a  right 
to  complain  of  such  abridgment  or  to  regard  it  as  a  hardship,  when  it  is  essential  to 
the  welfare  of  the  body  politic.  Every  one  of  us  has  to  yield  many  rights  and  privi- 
leges by  reason  of  our  relations  to  society,  and  whatever  is  necessary  for  the  social 
well-being  must  be  given  up  by  the  individual.  I  will  not  insult  your  intelligence 
and  waste  your  time  in  arguing  or  illustrating  this  proposition.  It  is  self-evidently 
true  and  universally  recognized. 

It  is  also  reasonably  true  that  most  of  those  fit  by  intelligence  and  character  to 
discharge  the  duty  of  suffrage,  and  who  are  disfranchised,  will  not  continue  long  in 
this  position,  but  will  be  incited  to  go  to  work  to  accumulate  something,  and  will  soon 
enter  the  ranks  of  qualified  voters,  who  contribute  to  the  welfare  of  the  State,  to  their 
own  personal  benefit,  and  to  the  exaltation  of  the  dignity  and  prosperity  of  the  Com- 
monwealth. 

Some  of  the  grounds  an  which  this  simple  and  effective  mode  of  dealing  with  this 
important  subject  are  based  are  as  follows: 

1.  It  is  honest  and  just  and  right.  You  need  no  "'understanding  clause"  or  "  grand- 
father provision/'  about  which  thoughtful  men  everywhere  not  only  doubt,  but  from 
which  they  shrink  with  moral  aversion.  You  will  not  be  afraid  of  the  courts.  Con- 
science will  not  torment  you.  You  can  look  into  the  face  of  God  and  feel  that  you 
have  His  approval. 

As  has  already  been  shovN-n.  no  man  is  entitlid  to  the  privilege  of  voting  who  does 
not  value  it  and  know  how  to  use  it.  and  who  has  no  such  interest  in  the  community  as 
will  conduce  to  his  using  it  aright.  Xo  injustice  is  done  any  one  who  has  not  character 
and  industry-  enough  to  accumulate  the  paltry  sum  needed  to  make  him  a  voter,  and  if 
at  first  some  worthy  men  are  debarred,  it  is  not  injustice  to  them,  but  an  incentive  to 
put  themselves  in  a  position  where  they  can  be  admitted  to  suffrage  righteously. 

2.  The  adoption  of  such  a  suffrage  requirement  will  immediately  add  thousands 
and  tens  of  thousands  of  names  to  the  list  of  taxpayers  within  the  State.  AVTio  can 
estimate  the  number  in  Virginia  at  the  present  time  who  exercise  the  right  of  voting 
and  who  have  far  more  than  S150  worth  of  property,  but  who  never  list  or  pay  taxes 
on  their  property?  Such  men  will  be  brought  to  the  book,  and  if  they  wish  to  vote, 
will  hare  to  come  forward  and  bear  some  share  of  the  burden  of  sustaining  the  govern- 
ment. 

3.  Another  desirable  end  that  will  be  accomplished  is  found  in  the  incentive  fur- 
nished the  young  men  of  the  Commonwealth  to  save,  instead  of  squandering,  their 
earnings:  to  accumulate  something,  so  that  they  may  become  and  be  recognized  as 
independent  and  rightful  voters,  with  all  the  privileges  and  immunities  appertaining 
thereto.  At  present  our  young  men  have  no  such  incentive  and  inspiration,  and  too 
many  of  them  not  only  live  up  to  but  squander  their  means  and  acquire  habits  of 
thriftlessness.  and  instead  of  becoming  productive  factors,  grow  into  bummers  and 
incompetents  and  deadheads — an  incubus  on  society.  Xow,  let  our  young  men  learn 
that  in  order  to  occupy  a  reputable  position  among  their  fellows,  they  luust  be  possessed 
of  this  modicum  of  prosperity,  and  they  will  go  to  work  to  acquire  it,  and  having  suc- 
ceeded, the  desire  of  accumulation  will  be  stimulated,  and  the  number  of  thrifty  and 
independent  citizens  will  be  largely  increased.  I  verily  believe  that  if  this  scheme  be 
adopted  more  will  be  done  for  the  financial  progress  of  the  State,  for  its  economic 
strength,  for  its  growth  in  moral  power,  than  by  any  other  means  that  can  be  devised. 
Who  can  doubt  that  within  ten  years  the  number  of  taxpayers  in  old  Virginia  will  be 
at  least  doubled,  and  perhaps  trebled;  that  capable  men  will  be  found  for  positions  of 
importance  in  our  cities  and  towns,  and  that  our  country  regions,  now  being  stripped 
of  population,  will  gradually  fill  up  with  aspiring  and  earnest  men,  who  will  add  to  the 
resources  of  the  Commonwealth  by  increasing  its  productive  capacity,  and  found 
homes,  which  will  be  the  abode  of  comfort  and  happiness. 

4.  The  last  ground  on  which  I  put  the  proposition  I  support  is  that  it  will  do  much 
to  purify  politics  by  purging  and  elevating  the  electorate.  As  at  present  constituted, 
the  voting  population  in  a  portion  of  the  State  consists  largely  of  ignorant  negroes, 
who  have  no  more  intelligent  interest  in  the  result  of  elections  than  so  many  sheep. 


3004 


DEBATES  OF  THE  CO^fSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


In  Other  portions  of  the  Commonwealth  there  is  by  no  means  so  large,  but  an  appre- 
ciable, element  of  white  voters  more  venal  than  the  negroes,  and  in  politics  more 
corrupt.  Both  these  elements  will  be  eliminated,  and,  as  a  consequence,  bossism  and 
ring  rule  will  be  abated;  honorable,  intelligent  gentlemen,  who,  under  the  corruption 
now  existing,  have  withdrawn  from  the  arena,  will  come  forward  as  active  and  con- 
trolling factors  in  the  government,  to  the  manifest  improvement  of  every  interest  held 
dear  by  intelligent  people.  Thus,  instead  of  the  rascality  and  fraud  so  commonly 
practiced,  and  the  consequent  choice  of  incompetent  and  sometimes  of  base  men,  for 
governmental  service,  we  may  expect  to  see  the  return  of  the  day  when  Virginia's 
honored  sons  are  among  the  foremost  in  the  land,  and  the  old  Commonwealth  shall 
take  and  hold  her  rightful  place  in  the  galaxy  of  States. 

But  I  will  be  asked,  "What  about  the  Norfolk  Democratic  Convention  of  1900?  Did 
it  not  promise  that  no  white  man  shall  be  disfranchised?"  To  which  I  reply  by  asking, 
"Did  the  Norfolk  Convention  have  authority  to  make  such  a  promise?  Was  not  its 
action  in  this  matter  ultra  vires?" 

"  If  it  had  power  to  bind  this  Convention  in  this  respect,  does  not  its  power  to  bind 
reach  to  any  and  every  other  point  which  it  chose  to  handle?"  This  is  a  reductio  ad 
absurdum,  and  I  therefore  assert,  without  fear  of  successful  contradiction,  that  the 
dictum  of  that  Convention  has  no  more  legitimate  force  on  this  body  or  on  any  member 
of  it  than  the  pronunciamento  of  the  secret  conclave  of  the  Pope  of  Rome,  or  of  a  circle 
of  mumbling  Buddhist  priests  in  India  or  China.  We  are  here  to  obey  the  behests  of 
r,o  man  or  body  of  men,  but  to  consult  together  and  conclude  v/hat  is  best  for  the  people 
of  Virginia,  and  to  embody  that  in  its  organic  law. 

"  But  what  about  the  promJses  made  before  the  late  election,  on  the  hustings  and  in 
the  newspapers,  by  certain  members  of  this  Convention,  and  other  trustworthy  citizens, 
to  the  effect  that  no  white  man  of  Virginia  shall  be  disfranchised,  as  the  result  of  our 
work?"  To  which  I  reply,  as  I  have  frequently  replied  to  such  inquiries,  that  the  Con- 
vention has  never  made  any  such  pledge,  and  that  the  promise  rests  on  the  responsibility 
ef  those  who  made  it,  and  only  on  that.  It  is  far  from  my  purpose  to  reflect  on  their 
action  or  to  impugn  their  motives.  All  that  I  assert  is  that  their  action  does  not  bind 
miQ  or  this  Convention.  They  are  intelligent,  they  are  upright,  they  knew  what  they 
were  doing,  they  are  responsible  for  what  they  have  done;  but  they  cannot  implicate  me 
or  any  other  person,  for  whom  they  were  not  specifically  authorized  to  speak. 

But  I  am  told  that  "the  statements  were  made  I  that  they  were  made  by  gentlemen 
of  character  and  worth;"  and,  it  is  added,  "that  if  they  were  not  contradicted,  any  man 
who  failed  to  contradict  them  became  responsible  for  them!" 

Were  there  not  such  an  element  of  Jesuitry  and  dangerous  error  in  this  contention 
as  to  render  it  destructive  of  good  morals  and  of  the  very  foundations  of  society,  it  is 
so  silly  as  to  be  amusing  and  mirth-provoking;  that  I,  forsooth,  can  give  to  the  world  an 
opinion  in  regard  to  some  important  matter  within  the  province  of  this  Convention,  and 
an  assurance  that  it  will  be  done  in  order  that  certain  conditions  may  be  brought  about, 
and  that,  as  a  consequence,  any  one  or  all  of  you,  who  become  cognizant  of  the  facts 
and  fail  to  declare  yourselves  to  the  contrary,  put  yourselves  under  obligation  when  the 
matter  comes  before  the  Convention  to  sustain  my  opinion  by  your  vote,  and  to  bring 
to  pass,  the  prophesy  I  have  made,  is  too  ridiculous  to  be  considered. 

If  moral  absurdity  can  rise  higher  than  this,  I  can  recall  no  instance  of  it  in  the 
course  of  history  or  experience. 

We  stand  here,  then,  gentlemen,  as  freemen — intelligent  freemen — with  no  shackles 
on  our  limbs  or  consciences;  not  to  do  what  others  dictate,  but  what  our  intelligent 
judgments  indicate  to  be  right  and  best  for  the  interests  of  the  great  State  we  represent; 
and  I  beg  you  not  to  disgrace  the  "  Mother  of  States  and  statesmen  "  by  putting  such 
equivocal  and  suspicious  provisions  into  her  Constitution  as  the  "  understanding "  and 
the  "  grandfather  "  clauses.  I  assure  you  that  neither  of  these  provisions  m.eets  with 
the  approval  of  the  enlightened  and  God-fearing  people  of  Virginia.  I  have  talked  to 
many  citizens  of  Richmond,  and  of  other  portions  of  the  State,  and  have  met  with  none 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIRGIXIA. 


3005 


Vv-ho  do  not  spev/  these  things  out  of  their  mouths.  The  idea  of  enacting  anything  that 
may  be  repudiated  hy  the  Supreme  Court  of  the  United  States  is  abhorrent  to  them 
and  to  me.  On  the  contrary,  they  demand  that  we  shall  resort  to  the  same  honorable 
and  straightforward  means  used  by  the  fathers  and  founders  of  the  republic,  in  order  to 
rid  the  electorate  of  the  ignorant  and  incompetent  classes.  There  is  no  other  way  of 
doing  it  that  I  have  seen  pointed  out,  or  that  I  can  think  of,  in  accord  with  the  main- 
tenance of  the  honor  and  dignity  of  the  Commonwealth,  or  of  our  own  personal  integi'ity. 

But  there  is  a  knottier  problem  yet  to  be  considered — a  question  of  casuistry — which 
probably  perplexes  and  rests  heavily  on  the  minds  of  some  of  the  members  of  this  Con- 
Tention.  It  may  be  stated  thus:  What  is  the  man  to  do  who  in  his  canvass,  or  as  a 
condition  to  his  election  as  a  member  of  the  Convention,  specifically  stated  that,  so  far 
as  he  is  concerned,  he  would  vote  for  the  disfranchisement  of  no  vv'hite  man?  How  is 
he  to  get  around  this  pledge?  How  is  he  to  retain  his  self-respect  and  the  confidence  of 
his  fellow-citizens,  if  he  votes  for  a  scheme  of  suffrage  which,  in  the  nature  of  things, 
must  disfranchise  some  of  this  class? 

Suppose  that  there  is  a  member  of  this  Convention  who  stands  in  this  attitude,  who 
puts  himself  in  it  believing  that  it  was  possible  to  maintain  it,  and  that  it  was  for  the 
welfare  of  Virginia  that  it  should  be  maintained,  but  who  has  now  become  convinced 
that  it  is  impracticable,  that  the  best  interests  of  the  Commonwealth,  its  honor,  and  its 
dignity,  the  virtue  and  the  well-being  of  its  people,  demand  that,  along  with  the  great 
mass  of  irresponsible  negroes,  some  irresponsible  whites  must  be  debarred  from  suf- 
frage; is  he  bound  to  be  guided  and  governed  in  his  actions  as  a  member  of  this  Con- 
vention by  former  and  immature  impressions,  or  by  later  and  settled  convictions  of  what 
he  deems  right  and  just  and  honest,  and  demanded  by  every  interest  of  enlightened 
statesmanship,  by  every  economic  and  moral  consideration  looking  to  the  prosperity  and 
happiness  of  the  people?  He  is  in  a  dilemma!  V\liich  horn  shall  he  choose?  He  must 
take  one  or  the  other:  If  he  acts  on  former  and  immature,  though  honest,  impressions, 
formed  and  expressed  prior  to  necessary  investigation,  he  violates  present  intelligent 
convictions,  casts  his  vote  against  vrhat  he  believes  to  be  essential  to  the  good  of 
society,  and,  so  far  as  in  him  lies,  does  what  he  can  to  perpetuate  the  degradation  of  his 
people,  acting  as  a  mere  tool  to  carry  out  the  ignorant  and  ill-considered  wishes  of  his 
constituency.  If,  on  the  other  hand,  he  follows  the  leading  of  his  conscience  and  judg- 
ment, enlightened  and  instructed  by  'a  more  thorough  perception  of  the  facts  of  the  case 
and  the  demands  of  his  situation,  he  acknowledges  himself  to  have  been  guilty  of  error 
in  making  a  heedless  pledge,  but  fulfils  his  duty  as  a  representative  of  the  people  by 
obtaining  for  them  a  form  of  government  which  shall  promote  their  best  interests,  and 
in  its  wholesome  and  health-giving  effects  tend  to  crown  the  old  Commonwealth  with 
glory  and  honor. 

Mr.  Chairman,  all  of  us  were  probably  told  in  our  childhood,  by  honorable  and  soli- 
citous parents,  that  "  two  v/rongs  never  make  a  right."  So  far  from  its  being  true  that 
because  a  man  has  been  gtiilty  of  a  wrong  he  ought  to  adhere  to  it,  exactly  the  reverse 
is  true.  Just  so  soon  as  I  am  convinced  that  I  am  wrong  in  thought,  in  feeling,  in  action, 
I  must  forsake  it.  turn  from  it,  and  choose  and  do  the  right.  "  To  thine  o-^m  self  be 
true,  and  it  will  follow  as  the  day  the  night,  thou  canst  not  then  be  false  to  any  man." 

Some  of  you,  I  am  sure,  will  remember  that  pregnant  sentence  which  flowed  from 
the  pen  of  the  immortal  Robert  E.  Lee,  in  a  letter  to  one  of  his  sons,  then  a  cadet  at 
West  Point:  'T3uty,"  says  he,  '-'is  the  sublimest  word  in  the  English  langtiage."  What 
we  ought  to  do,  it  is  our  duty  to  do.  Duty  is  present,  pressing,  imperative — what  the 
great  Kant  called  "  the  categorical  imperative."  It  cannot  be  guiltlessly  shirked,  but 
must  be  unflinchingly  met  and  discharged,  and  the  obligation  resting  on  every  one  of  us 
is  to  meet  our  responsibility  as  we  see  it,  knowing  that  we  must  give  account  to  our 
consciences,  to  our  fellow-men,  and  to  our  God. 

Rev.  Lewis  W.  Green,  D.  D.,  who  was  well  known  in  Virginia  fifty  years  ago  as  one 
of  its  most  learned,  eloquent,  and  useful  citizens,  has  left  on  record  a  sentence  some- 


3006 


DEBATES  OF  THE  CONSTITUTIOXAL  COJfVENTION  OF  VIEGIJSTIA. 


thing  like  the  following:  "Honesty,  honesty,  honesty!  Nothing  but  upright,  down- 
right, straightforward  honesty  will  avail  as  the  basis  of  good  character." 

And  s,o  I  say  that  "honesty — and  nothing  but  honesty,  upright,  downright,  straight- 
forw^ard  honesty  " — will  answ^er  in  the  framework  of  the  fundamental  law  of  an  en- 
lightened Commonwealth! 

I  thank  you,  Mr.  Chairman  and  gentlemen,  for  your  kind  and  patient  attention! 

Mr.  Hancock:  Mr.  President  and  gentlemen  of  the  Convention,  upon  the  question 
of  suffrage  I  have  had  nothing  to  say  up  to  the  present  time.  I  shall  vote  for  the  amend- 
ment of  the  gentleman  from  Norfolk  to  strike  out  this  understanding  clause.  I  shall 
not  vote  for  it,  however,  for  the  reasons  which  have  been  given  by  him.  I  shall  vote  for 
ir  because  I  believe  that  any  understanding  clause  is  of  such  a  nature  that  it  can  be 
easily  administered  in  the  interests  of  fraud,  and  that  such  a  provision  should  not  be 
incorporated  into  the  organic  lav/  of  the  Commonwealth  of  Virginia.  I  believe  that  we 
ought  to  have  a  suffrage  clause  in  the  Constitution  self-executing  in  its  character,  so 
there  can  be  no  fraudulent  administration  of  it  by  the  agents  who  are  required  to 
administer  it.  I  wish  to  say  that  when  the  question  came  up  in  the  Democratic  con- 
ference, I  voted  for  the  temporary  understanding  clause  for  the  purpose  of  destroying 
the  permanent  understanding  clause.  When  the  property  qualification  and  the  grand- 
father's clause  came  up  as  an  amendment  to  tlie  temporary  understanding  clause,  I 
voted  for  each  of  them  for  the  purpose  of  destroying  the  temporary  understanding 
clause.  When  the  proposition  came  up  to  take  away  the  property  qualification  and. the 
grandfather's  clause,  I  voted  to  destroy  thern  both,  because  I  did  not  consider  property 
a.  proper  basis  or  foundation  for  suffrage,  and  I  did  not  believe  that  a  man  should  have 
any  political  right  confoi^red  upon  him  because  of  what  his  father  or  grandfather  was  or 
did.  I  believe  that  manhood  suffrage  should  be  maintained  as  far  as  practicable.  There 
are,  how^ever,  unfavorable  conditions,  confronting  us,  and  some  other  methods  must  be 
resorted  to  in  order  to  preserve  our  civilization.  But  let  us  never  resort  to  any  ex- 
pedient that  is  doubtful,  in  morality,  and  let  us  never  resort  to  any  method  that  is  not 
right  and  just  in  the  public  eye  of  man  and  in  the  light  of  Heaven  itself. 

I  believe  that  one  of  the  greatest  evils  that  has  ever  cursed  this  country,  and  one 
01  the  greatest  crimes  that  has.  ever  been  committed  against  the  white  people  of  this 
great  southern  country  was  committted  when  unlimited  negro  suffrage  was  placed  upon 
her  people  by  the  Government  of  the  United  States.  The  history  of  the  world  from  time 
immemorial  will  show  that  two  races  of  people,  one  superior  and  the  other  inferior, 
cannot  live  together  on  term^s  of  social  and  political  equality.  It  was  therefore  wrong 
and  unwise  for  the  Federal  Government  to  place  the  fourteenth  and  fifteenth  amend- 
ments, with  all  of  their  dire  influences  and  results,  upon  the  people  of  our  southern 
country.  But  these  amendments  having  been  placed  upon  us,  and  we  having  accepted 
them  and  gone  into  the  Union  with  the  promise  to  maintain  and  to  support  them,  I 
shall  never  cast  my  vote  to  violate  the  Constitution  of  the  United  States  directly  or  in- 
directly. If  any  plan  that  is  honest,  any  plan  that  is  just,  any  plan  that  is  within  th3 
scope  of  the  fourteenth  or  the  fifteenth  amendments  can  be  devised,  by  which  the 
negroes  will  not  disturb  the  harmony  and  happiness  of  the  people  of  this  Commonwealth, 
I  will  vote  for  it.  I  will  vote  for  it  because  I  belisve  it  will  be  betTer  for  the  negroes 
themselves  if  the  ignorant  portion  of  their  race  are  disfranchised.  I  will  vote  for  it  be- 
cause I  believe  it  will  be  better  for  the  white  people  of  the  Commonwealth.  I  believe 
that  the  prepayment  of  a  poll-tax,  and  a  reasonable  educational  and  qualification  tax  is 
all  that  is  necessary  to  accomplish  this  object. 

Now,  Mr.  President,  and  members  of  the  Convention,  as  I  conclude  upon  this  sub- 
ject I  wish  to  say  that  the  remarks  I  have  made  have  been  made  from  an  earnest  and 
conscientious  desire  to  do  what  I  think  is  right,  and  to  express  the  reasons  which  in- 
fluence me  to  vote  for  the  amendment  offered  by  the  gentleman  from  Norfolk.  In  say- 
ing this,  I  wish  no  member  of  the  Convention  to  feel  that  I  question  in  the  slightest 
degree  the  purity  of  his  motive  or  the  honesty  of  his  purpose. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIMA. 


30or 


Mr.  Garnett:  Will  the  gentleman  explain  what  reliefs  he  proposes  to  give  us  from 
The  troubles  that  surround  us? 

Mr.  Hancock:  I  have  not  undertaken  to  formulate  any  plan  for  the  relief  of  the 
people  of  Virginia  on  this  matter,  because  I  did  not  come  from  that  portion  of  the  State 
that  demands  that  kind  of  relief.  I  thought  that  those  people  who  live  in  that  part  of  the 
State  where  the  relief  was  demanded  and  where  the  danger  confronted  them  were  the 
people  to  present  the  plans  of  relief,  and  I  would  vote  for  those  plans  if  reasonable  and 
not  contrary  to  the  Constitution  of  the  United  States.  I  would  say,  however,  to  the 
gentleman  from  Mathews,  that  requiring  the  prepayment  of  a  poll-tax  and  reciulring 
every  voter  to  prepare  his  own  ballot  would  bring  all  the  Telief  that  is  needed. 

Mr.  Watson:  I  would  like  to  ask  the  gentleman  if  the  county  of  Powhatan,  which 
he  has  the  honor  of  repres£nting  in  part,  is  not  as  badly  in  need  of  this  relief  as  any 
other  section  of  this  Commonwealth? 

Mr.  Hancock:  I  will  say  that  the  county  of  Powhatan  is  entitled  to  relief,  and  it 
would  get  relief  upon  the  plan  I  have  just  suggested  to  the  gentleman  from  Mathews. 
But  I  would  say  that  if  the  people  of  Powhatan  had  ever  resorted  to  such  fraudulent 
election  methods  as  have  been  adopted  in  some  other  counties  of  this  Commonwealth 
and  detailed  upon  the  floor  of  the  Convention  perhaps  my  righteous  indignation  would 
have  been  raised  to  such  an  extent  that  I  might  have  undertaken  to  prepare  a  plan 
that  would  give  relief  even  to  the  people  of  Powhatan.  But  the  people  of  Powhatan 
that  I  represent  in  part  upon  this  floor,  so  far  as  I  am  informed,  and  I  live  near  them 
and  mingle  with  them,  have  never  resorted  to  such  fraudulent  election  methods  as 
I  have  heard  spoken  of  upon  the  floor  of  this  convention.  But  so  far  as  fraud  is  con- 
cerned, neither  Powhatan.  Chesterfield,  nor  Manchester,  although  they  sent  me  here  as 
their  representative,  wotild  ever  have  sent  me  here  to  represent  fraud.  They  never 
would  have  sent  me  here  to  originate  fraud.  They  never  could  have  sent  me  here  to 
violate  directly  or  indirectly  the  Constitution  of  the  United  States;  and  they  knew  it 
when  they  sent  me  here  by  a  unanimous  vote.  (Applause.) 

Mr.  Keezell:  Mr.  President,  I  do  not  desire  to  delay  the  Convention  but  a 
moment.  I  desire  simply  tO'  state  that  my  vote  upon  the  question  will  be  cast  against 
the  amendment  of  the  gentleman  from  Norfolk  in  favor  of  this  report  as  it  has  been 
presented  in  the  Convention.  I  want  to  say  just  one  word  of  explanation  so  that  my 
position  may  be  fully  understood.  As  I  have  stated  a  number  of  times  in  Democratic 
conference  and  in  Convention,  that  so  far  as  the  people  I  represent  on  this  floor  are 
concerned,  they  are  not  for  themselves  asking  any  change  in  the  suffrage.  They  are 
not  in  the  condition  that  many  of  the  sections  of  this  State  are.  They  do  not  suffer 
from  the  illegal  election  practices  that  have  been  mentioned  here.  So  far  as  those 
people  are  concerned,  they  did  not  send  me  here  to  clamor  for  any  change  in  the 
suffrage  laws.  They  were  very  much  more  interested  in  economic  questions  and 
questions  of  taxation  and  matters  of  that  sort  than  they  were  in  the  question  of  suf- 
rage. 

Mr.  Chairman,  I  recognized  when  I  became  a  candidate  for  this  Convention,  and 
I  so  stated  to  the  people,  that  I  did  not  expect  to  get  everything  as  I  wanted  it,  that 
I  recognized  that  legislation  was  more  or  less  a  matter  of  compromise.  There  are 
two  propositions  to  which  the  people  I  represent  are  intensely  opposed;  one  is  the 
question  of  a  property  qualification,  another  is  the  permanent  understanding  clause. 
Believing  in  the  first  place  that  property  is  not  a  fair  test  of  a  man's  capacity  to 
exercise  the  right  of  suffrage  because  many  of  our  best  qualified  electors  may  from 
the  force  of  circumstances  be  unable  to  meet  this  qualification,  and  believing  that  if  a 
permanent  understanding  clause  were  incorporated  into  our  Constitution,  the  reprehen- 
sible practices  which  we  have  thus  far,  in  my  section,  been  able  to  prevent  from 
creeping  into  our  elections  might,  in  that  event,  come  to  tempt  our  people  to  resort 
to  unfair  methods,  both  as  against  the  opposing  political  party  and  against  factions 
in  our  own  party,  and  recognizing  that  we  are  up  against  one  of  two  propositions — 


3008 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


either  to  fasten  the  odious  property  qualification  upon  suffrage  in  this  State,  or  as 
equally  odious  permanent  understanding  clause — I  intend  to  vote  for  this  compromise 
measure  presented  by  the  gentleman  from  Lynchburg,  and  adopted  by  the  Democratic 
conference,  and  I  intend  to  vote  for  it,  not  because  of  what  it  is,  but  because  it 
gets  rid  of  the  property  qualification  which  is  so  objectionable  to  me  and  my  people,  and 
because  it  gets  rid  of  the  permanent  understanding  clause  which  is  equally  or  more 
objectionable  still,  and  gives  us  a  suffrage  plan,  which,  in  my  opinion,  will  relieve  those 
sections  of  the  State  that  should  be  relieved  from  conditions  that  are  now  existing  there, 
without  imperiling  the  people  that  I  represent  upon  this  floor. 

I  believe  that  under  the  provisions  of  this  article  practically  every  white  man  in 
the  country  from  which  I  come,  and  a  large  majority  of  the  colored  ones  also,  will 
get  on  the  roll,  and  there  will  be,  I  believe,  not  the  least  unfairness  in  the  administra- 
tion of  this  temporary  understandiug  clause. 

I  simply  desire  to  make  this  statement  in  explanation  of  the  vote  which  I  pro- 
pose to  cast. 

Mr.  iBraxton:  Mr.  President,  I  will  not  detain  the  Convention  more  than  a  few 
minutes  to  explain  my  position  in  reference  to  the  pending  amendment.  As  is  well 
known  by  all  of  my  associates  here,  I  have  consistently  and  persistently  opposed  the 
insertion  into  our  Constitution  of  an  "  understanding  clause,"  either  temporary  or  per- 
manent. Personally  I  was  also  opposed  to  a  so-called  "grandfather  clause;"  but  T 
was  willing  to  accept  it  in  preference  to  any  form  of  an  understanding  clause.  I  will 
not  attempt  to  recapitulate  the  reasons  why  I  regard  both  the  grandfather  clause  and 
the  understanding  clauses  as  objectionable;  or  why  I  regard  the  understanding  clause 
as  by  far  the  more  objectionable  of  the  two.  I  have  already  had  the  honor  of  laying 
my  views  on  these  questions  fully  before  the  conference  of  the  Democratic  members 
of  this  Convention.  I  have  ever  thought  and  I  still  think  and  believe  that  the  only 
provisions  which  we  should  make  in  dealing  with  the  negro  question  in  this  State 
are,  in  substance,  the  three  following: 

First,  that  every  voter  should  be  required  to  prepay,  not  less  than  six  months  in 
advance  of  the  election,  all  poll  taxes  assessed  against  him  for  the  four  years  next 
preceding  the  election  at  which  he  offers  to  vote;  such  poll  taxes,  however,  not  to 
be  collectable  by  any  legal  process— leaving  the  man  to  pay  them  or  not  as  he 
chooses,  providing  only,  that  if  he  does  not  pay  them,  he  cannot  vote;  second,  that 
every  man  after,  say,  two  years  from  this  date,  shall  be  required  to  fix  his  own 
ballot,  without  assistance,  unless  he  is  blind  or  physically  disabled— it  being  my 
opinion  that  so  long  as  the  opportunity  of  having  assistance  in  fixing  one's  ballot  is 
permitted  to  remain,  there  can  be  no  effectual  prevention  of  bribery  and  fraud  in  elec- 
tion; and  third,  that  negroes  should  be  excluded  from  the  right  to  hold  office  in  this 
State. 

While  I  believe  that  these  three  provisions  would  suffice  to  solve  the  negro  problem 
in  this  State,  would  be  constitutional,  and  would  tend  greatly  to  purify  our  elections, 
yet  I  was  willing,  in  deference  to  the  wishes  and  views  of  my  associates  to  so  far 
modify  this  plan  as  to  agree,  first,  that  a  small  property  qualification  should  be 
inserted;  or,  second,  that  an  experiment  with  the  so-called  "grandfather  clause"  should 
be  resorted  to;  but  I  did  hope  never  to  see  the  day  when  an  "understanding  clause," 
either  temporary  or  permanent— with  all  of  its  possibilities  of  fraudulent  administra- 
tion and  other  offensive  and  objectionable  features— would  enter  into  the  fundamental 
law  of  this  State.  For  a  long  time  I  believed  that  we  had  escaped  the  danger  of 
adopting  any  such  understanding  clause  as  was  recommended  by  the  majority  report 
of  the  Committee  on  Suffrage;  headed  by  the  gentleman  from  Norfolk  (Mr.  Thorn),  or 
as  was  recommended  by  the  minority  report  of  that  committee,  headed  by  the  gentle- 
man from  Campbell  (Mr.  Daniel) ;  but  about  a  week  ago,  while  the  matter  was  bemg 
earnestly  contended  in  the  conference  of  the  Democratic  members  of  this  body,  the 
gentlemen  representing  the  advocates  of  both  the  temporary  and  permanent  under- 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIliGINIA.  3009 


standing  clause,  in  a  special  conference,  agreed  upon  a  so-called  Glass-Daniel-Thom 
compromise  plan,  in  which  there  was  embodied  an  "understanding  clause"  to  remain 
in  effect  until  1909,  with  the  right  to  be  thereafter  indefinitely  extended  in  the  man- 
ner referred  to  a  few  moments  ago  by  the  gentleman  from  Pulaski. 

Mr.  President,  I  believed  then,  and  I  believe  now,  that  such  an  arrangement  was 
equivalent,  in  every  respect,  to  a  permanent  understanding  clause;  in  short,  that  it  was 
nothing  more  nor  less  than  a  permanent  understanding  clause  in  disguise.  I  will  not 
attempt  to  express  the  horror  with  which  I  was  filled  by  the  possibility,  and  the  appar- 
ent probability,  of  the  success  of  such  a  measure.  Those  of  us  who  opposed  any  under- 
standing clause,  either  temporary  or  permanent,  did  what  we  could  to  prevent  the  suc- 
cess of  this  compromise  measure,  and  two  plans,  one  presented  by  the  gentleman  from 
Richmond  (Mr.  Meredith),  and  the  other  presented  by  myself,  were  laid  before  the 
Democratic  conference  in  the  hope  that  one  or  the  other  of  them  might  be  accepted  in 
lieu  of  the  "compromise  plan" — neither  Mr.  Meredith's  plan,  nor  my  own  having  any 
"  understanding  clause  "  whatever  in  it.  The  result  of  ihe  contest  which  then  ensued 
satisfied  those  of  us  who  were  opposed  to  any  understanding  clause,  that  the  so-called 
"  compromise  plan "  was  almost  certain  of  success  in  the  conference — many  of  the 
m.embers  who  were  not  at  heart  in  favor  of  it  having  been  driven  to  agree  to  it  because 
of  their  despairing  of  the  conference  or  of  the  Convention  being  able  to  agree  upon  anv 
other  plan.  It  was  then  that  the  gentleman  from  Pulaski  (Mr.  Wysor)  offered  his 
amendment  to  the  so-called  compromise  plan,  the  effect  of  which  was  to  terminate 
absolutely  the  operation  of  the  understanding  clause  on  the  first  of  January,  1904.  Be- 
lieving, as  I  then  did,  that  the  only  possible  chance  of  defeating  the  permanent  or  in- 
definite understanding  clause,  as  embodied  in  the  compromise  plan,  was  to  effect  the 
adoption  of  the  Wysor  amendment,  modifying  its  operation  by  limiting  its  duration  to 
1904,  and  bringing  it  then  to  an  absolute  and  final  termination;  and  further  believing 
that  the  only  way,  under  the  circumstances,  to  effect  the  adoption  of  the  Wysor  amend- 
ment was  to  agree  to  support  the  so-called  compromise  plan  as  amended  by  that  amend- 
ment, if  the  amendment  should  be  adopted;  I  stated  then,  in  a  speech  to  the  conference, 
that  if  those  members  who  were  led  to  support  the  compromise  plan  for  fear  that  no 
other  plan  could  be  adopted,  and  for  fear  that  if  this  compromise  plan  was  defeated  it 
would  mean  the  restoration  of  the  chaotic  condition  of  the  entire  suffrage  matter  which 
had  existed  for  ten  months  past — that  if  these  members  would  unite  with  us  in  the 
adoption  of  the  Wysor  amendment — I  would  withdraw  the  plan  I  had  offered,  and,  in  good 
faith,  then,  as  a  matter  of  compromise,  support  the  "  compromise  plan  "  with  the  modi- 
fied understanding  clause  therein,  limiting  it  in  its  duration  to  the  first  of  January, 
1904.  Other  gentlemen,  holding  the  same  views  as  myself,  notably  the  gentleman  from 
Pulaski,  who  offered  the  amendment,  followed  with  similar  statements;  and  I  believe 
that  it  was  largely  due  to  this  position  taken  by  us  that  the  proposition  for  the  indefi- 
nite understanding  clause  was  defeated.  Having,  however,  obtained  this  result  by 
reason  of  my  promise  to  support  the  clause,  as  it  now  exists,  I  feel  in  honor  bound  to 
support  it,  and  I  will  accordingly  do  so  and  vote  against  the  amendment  offered  by  the 
gentleman  from  Norfolk  now  pending  before  this  Convention. 

Mr.  President,  I  deeply  lament  the  presence  of  the  objectionable  understanding 
clause  in  our  Constitution.  I  cannot  but  regard  it  as  a  great  defect  in  our  work;  but  I 
know  it  to  be  an  unavoidable  defect.  I  recognize  the  great  ability,  the  purity  of  motives, 
and  the  patriotism  of  my  associates  who  differ  from  me  on  this  subject.  I  have  fought 
against  any  "  understanding  clause "  in  this  Convention  for  nearly  ten  months,  and 
until  further  resistance  would  not  only  be  useless,  but  would  be  folly,  and  a  wrong,  as 
it  has  been  clearly  demonstrated  that  there  is  no  other  ground  upon  which  the  conflict- 
ing views  of  the  members  of  this  body  can  be  reconciled.  I  feel  that  there  was  pre- 
sented to  me,  and  to  those  of  us  who  oppose  any  understanding  clause,  the  choice  of 
evils,  between  a  temporary  understanding  clause  lasting  a  year,  and  a  permanent  or  in- 
definite understanding  clause,  exaggerating  and  perpetuating,  as  I  verily  believe,  all  of 
the  worst  evils  of  our  present  system. 


3010 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  believe  we  have  chosen  by  far  the  lesser  of  the  two  evils;  and  however  distaste- 
ful it  may  be  to  me  to  accept  it,  I  believe  that,  after  the  long  efforts  we  have  made  in 
this  Convention,  for  nearly  a  year,  to  agree  upon  something  more  satisfactory,  the 
interests  which  we  represent  and  •  the  welfare  of  the  State  at  large  demand  of  us,  as 
patriotic  men,  to  aces'pt  and  adopt  this  present  plan,  as  the  best  that  can  be  gotten  under 
all  the  circumstances  that  surround  us. 

I  hope,  therefore,  it  may  be  the  pleasure  of  this  Convention  to  vote  down  the  amend- 
ment offered  by  the  gentleman  from  Norfolk,  the  adoption  of  which  would,  in  my 
opinion,  throw  everything  into  confusion  and  again  expose  us  to  the  imminent  danger 
of  having  a  permanent  or  indefinite  understanding  clause  put  upon  us. 

Mr.  Brown:  Mr.  President,  I  promise  to  detain  the  Convention  only  a  moment. 
This  seems  to  be  an  experience  meeting  and  I  desire  to  state  my  position  briefly  upon 
the  matter  now  under  consideration.  I  understood  the  gentleman  from  Pulaski  to  state 
that  the  gentlemen  who  voted  for  the  property  qualification  as  an  amendment  to  the 
plan  of  Mr.  Glass  did  so  for  the  purpose  of  destroying  his  plan,  and  of  aiding  in  the 
adoption  of  a  permanent  understanding  clause.  I  desire  to  say  that  I,  for  one,  did  not 
occupy  that  position  on  that  question.  I  came  to  this  Convention  with  the  determina- 
tion to  vote  for  a  suffrage  clause  that  would  be  as  nearly  effective  as  possible  to  accom- 
plish the  purposes  for  which  we  came  and  that  would  be  as  nearly  automatic  as  possi- 
ble and  as  little  dependent  upon  the  administration  of  the  law,  and  also  for  such  pro- 
visions as  would  enable  us  to  have  in  the  electorate  as  few  m-en  as  possible  who  were 
dissatisfied  with  their  title  as  voters.  For  these  reasons  I  have  always  been  opposed  to 
every  form  of  understanding  clause,  because  I  believe  that  in  a  great  measure,  it  depends 
for  its  effectiveness  on  the  administration  of  it.  I  have  alw^ays  been  opposed  to 
the  imposition  of  any  poll-tax,  as  a  prerequisite  to  the  right  to  vote,  because  I  brilieve 
the  imposition  of  a  poll-tax  will  be  considered  by  the  voter  a  tax  upon  his  right  to  vote 
and  I  believe  that  it  will  cut  out  of  the  electorate  of  this  State,  at  least  in  the  moun- 
tain sections  of  the  State,  and  in  the  cities,  as  many  or  more  of  our  white  electors  as  it 
will  colored,  and  will  be  a  constant  source  of  dissatisfaction  and  worry.  I  have  been 
from  the  beginning  in  favor  of  a  property  qualification  with  the  broadest  exemptions 
from  its  operation  under  the  grandfather  clause,  that  could  be  adopted  under  the  Con- 
situation  of  these  United  States.  I  believe  we  should  meet  the  whole  measure  of  our 
responsibility  and  our  duty  here.  It  seems  to  me  that  such  a  provision  as  that  practi- 
cally admits  the  whole  of  the  white  electorate  of  this  State.  It  would  admit  thos'3 
worthy  negroes  who  have  shown  themselves  to  be  identified  with  the  interests  of  the 
Commonwealth,  and  would  encourage  enterprise  and  stability  of  purpose  and  uplift  the 
whole  negro  race  and  at  the  same  time  protect  the  body  politic  from  ignorance  and  vice. 
T  feel  that  I  have  been  defeated  on  all  of  these  points.  There  is  not  one  provision  left  in 
this  compromisiO  plan  that  fills  my  idea;  but  I  am  not  going  to  try  to  destroy  what  is 
the  composite  opinion  of  this  whole  body,  and  I  propose  to  vote  for  this  provision  as  it 
stands.  (Applause.) 

Mr.  Gillespie:  Mr.  President,  and  gentlmen  of  the  Convention,  I  do  not  rise  be- 
fore you  to  make  a  speech  on  this  occasion.  It  would  be  useless  for  me  to  do  so.  When 
we  met  here  on  the  12th  day  of  June,  1901,  we  met,  as  I  believe,  for  the  purpose  of  ris- 
ing above  party  and  partisanship  and  for  the  purpose  of  forming  a  Constitution  founded 
on  the  great  principles  of  justice  and  equity.  I  believed  that  was  the  purpose  of  the 
one  hundred  Virginia  gentlemen  here  assembled.  But  later  I  found  that  was  not  the  pur- 
pose. After  a  while  the  members  of  a  certain  party  shut  the  door  upon  the  members  of 
the  other  party,  and  began  to  consider  these  questions  behind  closed  doors.  They  have 
already  settled  it. 

Therefore  it  would  be  useless  for  me  to  say  anything  in  this  presence  with  a 
view  of  changing  it  or  affecting  it  in  the  least.  But  I  cannot  let  this  question  of  an 
understanding  clause  pass  me  without  my  most  earnest  protest.  We  have  heard  gen- 
tlemen of  the  Democratic  party  stand  upon  this  floor  and  arraign  the  understanding 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIEGIXIA.  3011 

clause.  The  gentleman  from  Roanoke  has  stated  that  he  did  not  oppose  it  for  the  same 
reason  the  gentleman  from  Norfolk  did,  because  it  was  not  efficient;  but  he  opposed  it 
because  it  was  potent  for  both  fraud  and  evil.  He  struck  me  as  a  true  Virginian  when 
he  stood  upon  this  floor  and  said — belonging  as  he  does  to  the  superior  race — that  he 
did  not  have  to  resort  to  fraud  and  deception  in  dealing  with  an  inferior  race. 

Now,  gentlemen,  you  cannot  denounce  in  too  unmeasured  terms  this  understand- 
ing clause.  What  does  it  mean?  The  gentleman  from  Pulaski  says  that  there  have 
been  only  three  reports  filed  by  the  suffrage  Committee.  I  ask  leave  to  correct  him 
and  tell  him  that  there  have  been  four  reports  filed  by  that  committee. 

Mr.  Wysor:  I  want  to  say  to  the  gentleman  that  I  did  not  know  he  had  filed  a 
report.  The  other  report  came  in  months  ago.  He  was  on  the  committee  and  did 
not  file  any.  If  I  had  known  that  he  had  filed  a  report  I  would  surely  have  mentioned 
it. 

Mr.  Gillespie:  I  want  to  say  to  the  gentleman  from  Pulaski  that  if  there  was 
a  man  in  this  Com^ention  of  whom  I  would  have  said  that  under  no  circumstances  would 
he  have  temporized  with  fraud,  it  would  have  been  the  gentleman  from  Pulaski.  I 
was  never  more  surprised  in  my  life  than  when  I  heard  him  stand  upon  the  floor 
this  morning  and  say  that  he  had  gone  over  to  the  opposition  and  had  accepted  this 
proposition,  temporizing  with  fraud. 

Mr.  Wysor:  Suppose  the  gentleman  was  confronted  with  two  propositions,  one 
the  permanent  understanding  clause  and  the  other  a  temporary  understanding  clause 
which  lasted  for  one  year,  which  would  you  expect  him  to  adopt? 

Mr.  Gillespie:  I  would  not  expect  him  to  take  either.  I  would  expect  him  to 
stand  upon  principle  and  go  down  with  it;  I  will  never  accept  fraud. 

I  desire  now  to  read  to  the  Convention  something  which  I  stated  in  my  report  as 
a  member  of  the  Committee  on  Elective  Franchise: 

We  do  not  think  that  any  man  who  now  has  the  right  of  suffrage  should  be 
deprived  of  that  right.  There  is  no  right  which  a  man  has  in  a  government  like  ours 
that  can  be  dearer  to  him  than  the  right  of  suffrage.  It  is  the  right  preservative  of 
all  rights,  and  we  most  earnestly  insist  that  we  have  no  more  right  to  take  away  his 
right  to  vote,  than  we  have  to  take  away  his  property.  To  take  away  his  right  to 
vote  is  in  effect  to  take  aw^ay  his  right  to  protect  his  property,  his  liberty  and  his  life. 
We,  therefore,  must  decline  to  lay  upon  any  of  the  present  voters  of  this  Common- 
wealth a  burden,  as  a  prerequisite  to  voting,  with  which  it  is  impossible  for  them  to 
comply. 

Under  the  majority  and  one  of  the  minority  reports  the  voters  of  the  State  are 
divided  into  the  soldier  class,  the  property  holding  class  and  non-property  holding 
class  is  fo  be  subjected  to  examinations  and  tests  not  laid  upon  the  otliers.  This 
dividing  of  the  voters  into  classes  and  subjecting  one  class  to  burdens  not  laid  upon 
the  others  is  contrary  to  the  nature  and  spirit  of  our  institutions. 

The  first  class  provided  for  is  the  soldier  class.  It  is  but  proper  to  allow  them  to 
retain  a  right  which  they  already  have.  Many  of  them  are  now,  and  doubtless  were 
when  they  rendered  military  services,  non-property  holders.  This  suggests  the  thought, 
is  it  wise  to  discriminate  against  the  non-property  holders  who  furnish  so  many  of 
our  soldiers,  and  thus  destroy,  or  at  least  lessen,  their  love  of  country? 

The  second  class  mentioned  in  these  reports  are  those  who,  or  whose  wife,  shall 
have  paid  to  the  State  taxes  for  the  year  preceding  that  in  which  he  offers  to  vote 
amounting  to  as  much  as  $1  on  property  owned  by  and  assessed  against  him  or  his 
wife.  At  the  present  rate  of  taxation  this  would  require  the  ownership  of  $250  worth 
of  property. 

Under  the  proposed  reduced  rate  of  taxation  he  would  be  required  to  own  $333 
worth  of  property.  If  his  taxes  are  reduced,  as  they  should  be,  his  ownership  of 
property  must  increase  under  this  plan. 

Mr.  Glass:  You  do  not  really  think  so;  do  you?  The  property  qualification,  if  it 
be  a  property  qualification,which  of  course  it  is  not,  does  not  last  longer  than  January 
1,  1904. 

Mr.  Gillespie:  That  is  under  your  proposed  plan.  My  reference,  in  my  report, 
was  to  the  original  majority  report. 


3012 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEi^TiON'  OF  VIRGI^^IA. 


This  property  qualification  would  exclude  perhaps  two-thirds  of  the  present 
voters  of  the  Commonwealth.  We  submit  that  a  property  test  is  not  a  Just  and  proper 
test  for  suffrage.  The  property-holder  does  not  bear  all  the  burdens  of  the  government. 
As  above  suggested,  a  great  number  of  the  soldiers  who  fight  its  battles  are  not 
property-holders.  .  The  laborers  in  the  fields  and  in  the  mines  and  shops,  who  do  so 
much  to  create  the  prosperity  and  wealth  of  the  State,  often  own  but  little  property. 
It  is  their  lot  by  hard  labor  to  create  the  wealth  of  the  State,  yet  they  are  to  have  no 
voice  in  the  making  of  the  laws,  or  in  selecting  those  who  shall  administer  them. 

Under  the  majority  report  the  test  provided  for  the  third  class  of  voters  is  that 
indefinite,  uncertain,  and  immeasurable  thing,  "  a  reasonable  explanation  of  the  general 
nature  of  the  duties  of  the  various  officers  for  whom  he  may  at  any  time  under  the  law 
then  existing  be  entitled  to  vote."  How  many  votersi  will  be  deprived  of  the  right  of 
suffrage  under  that  test  no  one  can  tell.  It  is  as  elastic  as  a  rubber  band  and  can 
be  adjusted  to  any  voter  to  suit  the  desire  of  a  partisan  registration  board.  This 
test  has  now  been  changed  under  the  plan  we  are  now  considering,  and  the  test  now 
suggested  is  that  the  voter  "  shall  be  able  to  understand  and  give  a  reasonable  explana- 
tion on  any  section  of  the  Constitution  when  read  to  him."  But  it  is  equally  as  bad 
and  elastic  as  that  originally  contained  in  the  majority  report.  Under  this  provision 
the  partisan  board  can  deprive  their  fellow-citizens  of  their  right  to  vote  and  then  com- 
fort themselves  with  the  thought  that  the  supremacy  of  their  party  is  necessary  for  the 
salvation  of  the  country,  and  that  their  fellow-citizens  vvere  unworthy  to  vote  because 
they  were  of  a  different  political  party. 

It  will  not  do  to  claim  that  men  will  not  take  advantage  of  a  law  so  loosely  drawn. 
There  will  always  be  those  who  are  ready  to  use  any  advantage  that  may  be  taken  of 
the  law.  We  were  told  of  old  that  "  The  heart  is  deceitful  above  all  things  and 
desperately  wicked.  Who  can  know  it?"  Human  nature  has  not  changed.  Yet  it  is 
proposed"  by  this  law  to  put  at  least  250,000  of  our  voters  at  the  mercy  or  a  registration 
board.  Under  it  the  registration  board  can  discriminate  against  one  voter  and  in 
favor  of  another.  It  is  needless  to  say  that  it  is  susceptible  of  fraudulent  administra- 
tion. In  our  opinion  it  encourages  and  invites  such  fraudulent  administration.  Who 
can  doubt  that  under  it  many  voters  will  be  fraudulently  discriminated  against  and 
deprived  of  their  right  to  vote.  We  cannot  believe  that  we  will  make  better  citizens 
of  any  part  of  the  people  by  unjustly  discriminating  against  them.  To  deprive  a  man 
of  his  right  to  vote  by  unjust  discrimination  must  of  necessity  turn  him  against  the 
State  and  to  that  extent  make  a  worse  citizen  of  him. 

Again,  a  law  so  uncertain  in  its  terms  and  so  suspectable  of  fraudulent  adminis- 
tration cannot  command  the  respect  and  confidence  of  the  people,  and  all  upright  men, 
jealous  of  their  good  names,  v/ill  refuse  to  take  part  in  the  administration  of  such  a 
law.  and  the  administration  of  it  will  fall  into  the  hands  of  unworthy  men.  Men  who 
can  adjust  their  consciences  to  suit  the  emergencies  of  any  case.  That  these  are  the 
kind  of  men  selected  to  administer  such  a  law  has  been  abundantly  illustrated  in  this 
Commonwealth  by  the  men  who  have  in  recent  years  administered  its  election  laws. 

Again,  the  men  who  administer  such  a  law  are  made  worse  by  administering  it. 
In  our  government  every  man  must  necessarily  be  more  or  less  a  partisan,  and  in 
administering  such  a  law  the  temptation  to  serve  partisan  ends  is  always  before  them. 
The  Great  Master  taught  us  to  pray  "  Lead  us  not  into  temptation."  But  under  this 
law  partisans  are  to  be  placed  in  a  position  which  invites  them  by  fraudulent  discrimi- 
nation to  advance  the  interest  of  their  party.  Every  wrong  that  a  man  does  tends  to 
harden  and  make  him  a  worse  man,  and  every  unjust  discrimination  that  these  par- 
tisan boards  shall  make  will  make  worse  men  of  them. 

Again,  all  classes  of  citizens,  seeing  that  the  law  invites  such  fraudulent  discrimi- 
nation, and  seeing  the  officers  of  the  law  engaged  in  such  fraudulent  methods,  will 
despise  the  law,  and  hold  the  law  and  those  who  administer  it  in  contempt. 

On  motion  of  Mr.  Lindsay:    The  chair  was  vacated  until  4  o'clock  P.  M. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIRGIXIA. 


3013 


AFTERNOON  SESSION. 

The  Convention  met  at  the  expiration  of  its  recess. 

Mr.  George  K.  Anderson  took  the  chair  as  Presiding  Officer. 

Mr.  Gillespie:  Mr.  President  and  gentlemen  of  the  Convention,  at  the  time  we 
took  a  recess  I  was  reading  from  my  report.    T  would  like  to  continue  that  reading: 

We  conclude,  therefore,  that  if  the  majority  report  should  be  adopted,  it  will 
demoralize  the  people,  and  work  untold  evil  to  the  State,  because: 

1st.    It  will  cause  those  who  are  discriminated  against  to  despise  and  defy  the 

law. 

2d.  It  will  cause  honest  and  upright  men  to  lose  respect  for  the  law  and  to 
refuse  to  take  part  in  its  administration. 

3d.  Its  fraudulent  administration  will  make  worse  men  of  those  who  administer 
it,  and  bring  the  law  and  those  who  administer  it  into  contempt  with  all  classes. 

We  believe  that  every  citizen  of  the  State  should  be  justly  and  honestly  dealt 
with.  The  law  defining  who  shall  have  the  right  of  suffrage  should  be  as  plain  and 
certain  as  it  can  be  made,  and,  as  far  as  the  ingenuity  of  man  can  devise,  it  should 
be  so  drawn  as  to  prevent  any  partisan  or  fraudulent  administration  of  it.  This  will 
inspire  confidence  in  the  law  and  cause  all  men  to  take  part  in  its  administration — a 
result  greatly  to  be  desired. 

Now,  gentlemen,  under  the  plan  which  is  now  suggested  and  under  consideration, 
the  standard  is  different  from  the  original  plan  but  equallj-  as  elastic.  According  to 
this  plan,  the  standard  is  to  be  the  ability  to  understand,  or  give  a  reasonable  explana- 
tion, when  read  to  him  by  the  officers  of  election,  of  any  section  of  this  Constitution. 
What  kind  of  a  standard  of  measurement  is  that  to  determine  a  man's  capacity  to 
exercise  the  right  of  suffrage?  Will  the  registration  board  understand  the  Constitu- 
tion? Who  knows  whether  they  tmderstand  it  properly,  or  not?  And  yet  the  under- 
standing of  the  voter  is  to  be  measured  by  the  understanding  of  the  registration 
board.  Do  we  not  know,  gentlemen,  that  the  meaning  and  extent  of  this  is  to  vest  in 
the  registration  board  the  absolute  and  arbitrary  power  to  register  whom  they  please, 
and  reject  whom  they  please? 

Will  such  a  measure  as  that  stand  under  the  Federal  Constitution?  In  the  case 
of  Tick  Wb  vs.  Hopkins,  118th  United  States,  page  369,  the  court  comments  upon  a 
similar  power  vested  in  a  board,  and  says: 

When  we  consider  the  nature  and  theory  of  our  institutions  of  government,  the 
principles  upon  which  they  are  supposed  to  rest,  and  review  the  history  of  their 
development,  we  are  constrained  to  conclude  that  they  do  not  mean  to  leave  room  for 
the  play  and  action  of  purely  personal  and  arbitrary  power.  For  the  very  idea  that 
one  man  may  be  compelled  to  hold  his  life,  or  the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of  life,  at  the  will  of  another,  seems  to  be  intolerable 
in  any  country  where  freedom  prevails,  as  being  the  essence  of  slavery  itself.  Fran- 
chise, though  not  regarded  strictly  as  a  natural  right,  but  as  a  privilege  merely  conceded 
by  society  according  to  its  will,  under  certain  conditions,  nevertheless,  it  is  regarded 
as  a  fundamental  political  right,  because  preservative  of  all  rights. 

Though  the  law  itself  be  fair  on  its  face,  and  impartial  in  appearance,  yet.  if  it 
is  applied  and  administered  by  public  authority  with  an  evil  eye  and  an  unequal  hand, 
so  as  practically  to  make  unjust  and  illegal  discriminations  between  persons  in  similar 
circumstances,  material  to  their  rights,  the  denial  of  equal  justice  is  still  within  the 
prohibition  of  the  Constitution. 

So  that  if  this  law  is  to  serve  the  purpose  for  which  it  is  intended,  it  must  be 
administered  with  an  evil  eye,  and  when  administered  with  an  evil  eye  it  is  in  direct 
conflict  with  the  Federal  Constitution. 

On  the  subject  of  this  being  a  mere  temporary  provision,  I  will  like  to  say  that  my 
understanding  of  the  Constitution  is  that  it  should  be  composed  of  fundamental  prin- 
ciples, so  as  to  insure  good  government  for  the  people  for  years.  But  the  measure 
that  we  now  have  under  consideration  is  to  be  only  a  time  server. 


3014 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


It  is  to  last  only  until  the  1st  of  January,  1904.  The  measure  is  so  fraught  with 
wrong,  so  potent  for  evil,  that  even  its  authors  are  afraid  to  allovv^  it  to  hecome  perma- 
nent. Under  it  they  hope  to  enroll  an  electorate  which  will  serve  their  purposes  for 
years  to  come.  The  framers  of  this  article  should  go  down  into  history  as  time- 
servers,  as  makers  of  shifts  for  the  time  being,  and  not  as  framers  of  a  Constitution 
which  is  to  last  for  years. 

The  question  as  to  the  necessity  for  passing  this  measure  was  referred  to  by  me 
this  morning  in  a  reference  made  to  the  remarks  of  the  gentleman  from  Roanoke  (Mr. 
Robertson).  Is  there  any  necessity  for  a  great  race  like  ours,  a  superior  race,  to 
resort  to  such  methods  in  coping  with  an  inferior  race?  Is  there  any  necessity  for 
it,  when  we  consider  the  vast  majority  of  white  people  in  this  Commonwealth,  the 
vast  majority  of  intelligent  white  people,  as  compared  with  this  inferior  race?  I  have 
heard  it  urged  that  the  reason  for  this  provision  is  that  as  long  as  the  negro  has  the 
right  of  suffrage  there  can  be  no  fair  elections  in  Virginia.  It  has  been  admitted  by 
the  Democratic  press  of  this  State,  and  by  Democratic  speakers  almost  all  over  the 
State,  that  the  elections  in  what  is  known  as  the  Black  Belt  are  carried  by  fraud. 

The  remedy  by  which  they  propose  to  correct  this  fraud  is  to  destroy  the  negro 
vote.  Gentlemen,  I  have  been  taught  to  believe  that  where  a  man  was  guilty  of  a 
fraud,  or  of  cheating  another  man,  the  man  who  committed  the  fraud  should  be 
punished,  that  a  man  who  steals  a  vote  should  be  punished.  But  what  is  the  remedy 
suggested  here.  The  remedy  suggested  here  is  to  punish  the  man  who  has.  been 
injured.  It  is  now  proposed  to  right  a  wrong  by  punishing  those  who  have  been 
defrauded  of  their  votes  to  the  extent  of  destroying  their  right  of  suffrage;  in  other 
words,  the  negro  vote  of  this  Commonwealth  must  be  destroyed  to  prevent  the  Demo- 
cratic election  officers  from  stealing  their  votes,  for  it  seems  that,  as  long  as  there  is 
a  negro  vote  to  be  stolen,  there  will  be  a  Democratic  election  officer  ready  to  steal  it. 
We  are  therefore  urged  to  make  this  change  in  the  fundamental  law  of  the  land  for  the 
purpose  of  correcting  election  abuses.  My  idea,  gentlemen,  is  that  the  proper  way 
would  be  to  write  into  this  Constitution  an  absolutely  fair  election  law.  I  have  added 
one,  so  far  as  I  am  able  to,  in  my  report. 

It  is  not  worth  while  for  me  to  argue  this  question  further.  I  only  want  to  enter 
my  earnest  protest  against  this  provision  as  fraught  with  untold  evil'. 

Mr.  Dunaway:  Mr.  President,  we  are  all,  I  suppose,  desirous  of  reaching  a  vote 
upon  this  question.  I  concur  in  that  desire,  and  I  have  made  up  my  mind  that  I  would 
not  occupy  any  of  your  time  before  reaching  a  vote.  I  promise  now  that  I  will  not 
occupy  but  a  few  moments.  The  reason  why  I  take  the  floor  is  that  I  feel  restive  under 
the  imputation  that  has  been,  as  I  think,  cast  upon  me  and  upon  many  of  my  comrades 
here  of  th?  prevailing  party  in  this  Convention. 

The  language  was  not  applied  directly  to  me  by  the  gentleman  who  has  just  spoken. 
It  was  applied  to  the  gentleman  from  Pulaski.  The  gentleman  from  Tazewell  expressed 
great  surprise  that  the  gentleman  from  Pulaski  would  temporize  with  fraud.  Those  were 
his  very  words.  As  I  occupied  in  this  matter  precisely  the  position  that  is  occupied  by 
him,  and  by  others  here,  I  cannot  feel  content  that  his  expression  shall  go  unchallenged. 
T  think  that  it  comes  with  a  very  bad  grace  from  the  gentleman  who  is  one  of  the 
minority  party  of  the  Convention, 

I  suppose  that  he  and  the  other  Republican  members  of  this  Convention  will  vote 
that,  hereafter,  elections  shall  be  by  ballot.  The  gentleman  knows  as  well  as  I  do, 
that  wherever  there  is  a  ballot,  there  is  an  opportunity  for  fraud,  and  if  the  gentleman 
is  so  afraid  of  it,  he  ought  to  vote  to  strike  that  provision  out  of  the  Constitution,  and 
give  us  the  old  system  of  "viva  voce"  vote,  for  it  is  not  only  true  in  Virginia,  but  it  is 
tiue  in  every  State  of  the  Union,  and  it  will  be  true  everywhere,  that  when  the  will  of 
the  people  is  to  be  made  known  by  a  secret  ballot,  there  fraud  will  be  perpetrated. 
Those  who  are  occupying  glass  houses  should  beware  how  they  cast  stones. 

It  is  not  only  in  the  eastern  portions  of  the  Commonwealth  that  the  negroes  are  in 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3015 

the  majority,  and  that  fraudulent  practices  are  committed  in  regard  to  the  counting  of 
ballotsi.  I  think  it  is  true  in  other  portions  of  the  State,  in  portions  of  the  Southwest, 
for  instance,  that  the  ballot  has  not  always  been  properly  cast,  and  has  not  always  been 
counted  as  cast.  Temporizing  with  fraud!  It  is  admitted  on  all  hands  that  frauds  are 
perpetrated  in  the  elections  held  in  the  Commonwealth  of  Virginia.  The  grossest 
frauds  are  committed,  and  if  any  party  in  this  State  is  responsible  for  these 
frauds  it  is  the  Republican  party,  which  has  sought  to  introduce  manhood 
suffrage  into  the  Commonwealth  of  Virginia,  whereby,  in  many  counties  of  this 
State,  white  men,  if  the  will  of  the  Republicans  should  be  fulfilled,  would  be 
absolutely  at  the  tender  mercy  of  the  negroes,  and  would  be  dominated  by  the 
majority  of  black  men  of  those  counties.  It  is  idle  to  talk  to  us  about  the  great  white 
majority  in  the  State.  We  are  not  here  seeking  for  a  white  majority  in  the  Common- 
wealth of  Virginia.  We  want  t^Le  people,  in  their  county  elections),  to  be  free  from 
the  risk  of  having  their  clerk's  oflace  filled  by  a  negro,  and  from  the  risk  of  having  a 
negro  for  Commonwealth's  Attorney,  and  negroes  filling  all  of  the  offices  in  the  county. 
His  remedy  for  fraud  would  be  to  punish  those  who  commit  the  fraud.  He  would  fix 
this  black  domination  upon  the  people  in  the  various  counties  of  this  State,  and  even 
upon  my  own  county,  where  the  negroes  are  in  the  majority. 

When  the  white  men  of  those  counties,  under  the  force  of  indomitable  racial  in- 
stincts, have  felt  themselves  compelled  to  resort  to  measures  they  have  themselves 
abominated,  in  order  to  cast  off  this  black  domination,  the  gentleman  from  Tazewell 
would  say  that  those  who  are  attempting  to  get  rid  of  that  domination  should  them- 
selves be  punished.  Not  only  would- he  put  us  in  the  power  of  the  negroes,  but,  if  by 
some  means,  we  escape  from  that  power,  he  would  have  some  penalty  of  law  imposed 
upon  us  for  the  sake  of  freedom  from  temporizing  with  fraud.  If  all  of  the  negroes  of 
the  Commonwealth  are  to  vote  as  they  would  vote,  for  the  Republicans,  the  same  state 
of  things  that  at  present  exists  will  continue  to  exist  in  this  Commonwealth;  whether  I 
justify  it  or  not,  whether  I  am  able  to  prevent  it  or  not,  and  whether  the  gentleman  from 
Tazewell  would  punish  the  men  who  used  these  improper  means  in  order  to  escape  from 
that  black  domination.    That  is  an  established  fact  that  every  man  knows. 

If  this  so-called  temporary  understanding  clause  was  the  only  thing  that  was  put 
here  as  a  qualification  for  voting,  it  would  be  extremely  obnoxious.  It  is  put  here 
rather  for  the  purpose  of  enlarging  the  number  of  electors  than  for  any  other  purpose; 
as  an  enfranchiser,  and  not  as  a  disfranchiser. 

TherJ  are  many  people  in  the  Commonwealth  who  have  not  served  in  the  army  or 
navy  in  time  of  war,  and  whose  sons  have  not  served  in  time  of  war,  who  do  not  pay  as 
much  as  $1  tax  upon  property,  and  we  desire  that  these  people — and  it  applies  to  the 
blacks  as  well  as  the  whites — should  have  an  additional  opportunity  of  getting  upon  the 
registration  rolls. 

There  is  no  taint  of  fraud  in  this  provision,  and  if  there  was,  we  could  not  be  brought 
to  support  it,  under  any  consideration  whatever.  It  is  a  just  and  reasonable  thing.  It 
is  an  ideal  plan,  if  it  could  be  ideally  administered,  that  people  ought  not  to  vote,  who 
do  not  understand  the  form  of  government  under  which  they  are  living.  I  am  one  of 
those  who  believe  that  it  is  going  to  be  fairly  administered.  I  call  the  attention  of  the 
gentleman  of  the  other  side  to  the  fact  that  the  registrars  who  are  to  administer  this 
understanding  clause  will  be  appointed  by  the  members  of  this  Convention.  I  know 
enough  about  the  members  of  this  Convention,  and  about  every  one  of  them,  to  say  that 
they  will  use  every  means  in  their  power  to  insure  the  appointment  of  registrars  from 
the  most  honest  and  capable  men  in  their  counties.  I  believe  that  the  provision  will  be 
fairly  administered.  If  it  were  to  run  for  a  long  time,  we  might  suspect  that  there 
would  come  a  time  when  it  would  be  fraudulently  administered,  not  only  against  the 
black  men,  but  against  the  white  men,  hut,  as  it  is  to  continue  only  until  1904,  and  is  to 
be  administered  by  men  to  be  appointed  by  the  members  of  this  Convention,  I  believe  it 
will  be  fairly  administered.  On  its  face,  it  is  capable  of  honest  administration,  and  I 
believe  it  will  be  honestly  administered. 


3016 


DEBATES  OF  THE  COJ^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


Having  said  these  things,  let  me  say  a  word  in  regard  to  my  position  upon  this 
subject. 

I  opposed,  as  best  I  could,  from  first  to  last,  any  understanding  clause  whatsoever, 
and  even  after  the  two  sessions  of  our  conference  had  met  in  joint  convention,  and  a 
committee  of  five  from  each  side  had  brought  in  a  compromise  report,  there  were  thirty 
of  us  members  of  this  Convention  who  met  in  a  room  in  this  building,  and  combined  to 
oppose  that  report.  There  was  an  organization  among  us  for  that  express  purpose. 
We  came  into  this  hall  with  our  competing  proposition,  and  we  had  no  understanding 
clause  in  it.  In  the  Convention,  from  first  to  last,  we  had  free  debate  and  untram- 
melled voting.  We  were  in  conference  with  our  brethren.  .  It  very  soon  become  appar- 
ent that  there  was  but  one  plan  of  suffrage  upon  which  the  majority  of  the  Democratic 
members  of  this  body  could  possibly  compromise,  and  that  was  the  plan  which  has  been 
presented  to  this  Convention.  WHien  I  found  that  out,  I  determined  that  I  would  make 
no  factious  opposition.  I  battled  against  this  understanding  clause  until  I  found  that 
the  majority  of  my  brethren  were  in  favor  of  this  clausie  as  it  is,  and  then  I  acceded  to 
it.  I  am  going  to  support  this  plan  right  through,  and  vote  against  every  amendment 
proposed  to  it  that  in  any  material  way  affects  it.  I  was  not  bound  by  the  action  of  the 
conference.  None  of  us  were  bound;  but  I  do  feel,  standing  here  to-day,  that,  as  a  mem- 
ber of  that  conference,  I  should  submit  to  the  decision  that  was  reached  by  it.  We  have 
had  our  opportunity  for  discussion  and  for  debate,  and  I  now  feel  that,  having  agreed  as 
a  body  of  brethren  of  the  same  party  upon  a  specific  plan,  the  best  thing  we  all  of  us 
can  do  in  the  Convention  is  to  stand  by  the  result  that  was  reached  in  conference. 

I  forewarn  you,  gentlemen,  that  if  this  motion  now  pending  prevails,  and  the  tem- 
porary understanding  clause  is  stricken  out,  some  gentleman  will  propose  to  insert  in 
place  of  it  a  permanent  understanding  clause. 

If  that  fails,  another  will  propose  to  insert  a  property  qualification,  and  then  you 
will  be  just  where  you  were  in  the  beginning.  Some  members  of  the  Convention  will 
De-  at  sea  and  others,  in  the  air  and  we  will  bs  likely  to  fail  to  agree  upon  any  plan 
whatsoever. 

I  shall  support  this  plan  because  I  believe  it  is  the  only  plan  upon  which  this  Con- 
vention can  agree.  Whether  it  be  the  best  plan  or  not,  I  heartly  accept  it  as  a  com- 
promise, for  it  is  a  compromise  of  compromises,  a  bundle  of  compromises.  No  gentle- 
man here  can  expect  to  get  all  that  he  wished  for  when  he  came  to  the  Convention; 
and  having  fought  for  what  he  wanted  let  him  take  what  the  majority  has  presented  to 
him. 

Mr.  Watson:  I  would  like  to  ask  the  gentleman  whether  when  the  gentleman  from 
Lynchburg  (Mr.  Glass)  was  asking  his  catechism  as  to  how  the  different  gentlemen  had 
voted  on  this  proposition,  my  friend  from  Lancaster  did  not  tell  him  that  he  preferred 
the  permanent  understanding  clause  to  the  temporary  one. 

Mr.  Dunaway:  I  said  so  in  conference  and  I  was  beaten  in  conference.  The  per- 
manent understanding  clause  was  knocked  out,  as  the  gentleman  from  Pulaski  said,  and 
I  do  not  propose  to  try  to  revive  it  here.  I  state  again  that  I  accept  the  result  that  was 
reached  by  the  conference. 

Mr.  Hatton:  Mr.  President,  I  regret  to  have  to  say  anything  more  to  the  Conven- 
tion on  this  subject;  but  I  feel  that  it  is  due  to  myself  and  it  is  likewise  due  to  my 
brethren  from  the  Black  Belt  that  I  should  at  least  say  something  by  way  of  explanation, 
rot  by  way  of  defence,  because  I  believe  that  their  action  in  relation  to  the  suffrage 
plan  reported  by  the  conference  needs  no  defence.  I  have  not  favored  an  understanding 
cLause,  except  so  far  as  the  acceptance  of  an  understanding  clause  might  have  been 
necessary  to  save  us  from  something  more  distasteful;  and,  to  me  nothing  which  has 
been  presented  for  our  consideration  is  more  distasteful,  save  those  provisions  which 
recognize  certain  hereditary  privileges  and  exemptions,  and  which  may  be  generally 
designated  as  grandfather  clauses.  I  do  not  like  to  designate  anything  here  as  that 
which  I  like  best.    I  prefer  to  take  the  contrary  position  and  designate  those  things 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA.  3017 


which  I  abhor  most,  and  the  first  in  that  category  may  be  designated  as  grandfather 
clauses — those  clauses  which  give  constitutional  recognition  to  the  idea  that  privileges 
or  exemptions  outside  of  and  above  the  general  laws  can  come  to  any  man  only  by  the 
the  accident  of  birth.  So  far  as  it  was  necessary  to  take  an  understanding  clause  in 
preference  to  that  species  of  constitutional  provision,  I  was  willing  to  take  it,  and  to 
take  it  permanently,  if  necessary;  but  I  was  willing  to  take  it  only  under  those  condi- 
tions, only  as  the  drowning  man  catches  at  any  flotsam  that  comes  within  his  reach  and 
which  may  buoy  him  up  until  something  more  substantial  may  come  within  his  reach. 

Mr.  Chairman,  my  distinguished  friend  from  Norfolk  (Mr.  Thom),  who  addressed 
the  Convention  this  morning,  has  seen  fit  to  criticise  those  representatives  from  the 
Black  Belt  who  did  not  favor  the  understanding  clause.  For  them  he  invoked  the  for- 
giveness of  Almighty  God,  because  he  said  they  knew  not  what  they  did.  As  one  of 
thos3  delegates  who  opposed  the  understanding  clause  and  who  comes  from  the  Black 
Belt,  I  stand  here  in  this  presence  and  declare  my  thankfulness  to  the  Almighty  that  I 
and  my  colleagues  from  the  Black  Belt  were  endowed  with  the>  wisdom  and  foresight  to 
oppose  and  defeat  the  permanent  understanding  clause.  I  believe  that  a  permanent 
understanding  clause  would  have  wrought  nearly  as  much  evil  in  the  Black  Belt  as  it 
would  have  cured.  I  am  here  now  to  declare  that  conviction,  and  whatever  responsi- 
bility is  to  come  I  am  willing  to  take  it,  and  take  it  cheerfully.  I  am  not  afraid  to  face 
my  constituents  and  to  declare  that  I  have  opposed  and  will  continue  to  oppose  the  per- 
manent understanding  clause,  under  the  conditions  which  I  have  indicated. 

I  would  suggest  to  my  distinguished  friend  from  Norfolk  that  he  should  first  pluck 
the  beam  from  his  own  eye,  and  then  perhaps  he  may  see  more  clearly,  because  I  be- 
li'9ve  that  the  vision  of  my  friend  is  defective.  It  seems  to  have  become  of  a  triple 
expansion  multiplying  kind,  since  he  has  been  considering  this  suffrage  question.  A 
negro  now  looks*  to  him  as  big  as  an  elephant.  Every  time  he  sees  one  negro  that  one 
is  multiplied  into  a  dozen.  I  believe  he  has  wrought  himself  up  to  such  a  pitch,  and 
that  it  is  he  who  does  not  see  clearly  the  condition  of  things  in  his  own  section  of  the 
State,  and  that  every  difficulty  surrounding  the  question  has  become  magnified  tenfold. 
For  my  own  part  I  would  be  willing  to  strike  from  this  plan  the  temporary  understand- 
ing  clause  and  that  portion  extending  the  privileges  of  the  old  soldier  to  his  son,  and 
would  be  delighted  to  see  both  of  these  provisions  eliminated,  but  I  know  that  if  they 
are  eliminated  the  suffrage  article  as  agreed  upon  in  conference  wull  not  stand  without 
having  inserted  in  it  something  even  more  distasteful  to  me  than  the  provisions  elimi- 
nated, and  no  man  in  this  Convention  can  forsee  the  result  which  may  ensue  from 
eliminating  these  provisions  now.  We  have  reached  an  agreement  in  conference  on 
this  suffrage  article  by  a  compromise  on  every  hand,  every  man  has  given  up  some- 
thing, and  I  shall  not  lift  my  voice  or  hand  against  that  article.  I  believe  that  in  so 
doing  I  would  be  recreant  to  the  trust  which  my  constituents  have  imposed  upon  me. 
If  the  gentleman  from  Norfolk  is  willing  to  go  back  home  to  his  constituents  on  his 
record  in  this  Convention  I  am  willing  to  stand  by  mine,  and  I  have  nothing  to  fear 
from  honest  men.  I  believe  that  a  permanent  understanding  clause  could  not  get  a 
majority  of  the  thinking  voters  in  the  city  of  Norfolk.  I  prefer  a  poll-tax,  cumulative 
forever;  and  in  addition  to  the  poll-tax  would  have  required,  as  a  prerequisite  to  voting, 
that  a  man  should  have  paid  all  taxes  with  which  he  was  legally  assessed.  In  addition 
to  that,  I  would  have  preferred  a  small  property  qualification  or  an  educational  qualifi- 
cation, and  there  I  would  have  been  willing  to  have  rested  my  case.  From  what  I  know 
of  the  conditions  in  the  Black  Belt  I  believe  that  such  a  provision  would  have  been  alto- 
gether efficient,  and  in  addition  it  would  have  been  honest,  simple,  and  easily  under- 
stood. Now,  Mr.  President,  with  this  statement  and  having  gone  on  record  as  to  my 
views  in  this  matter,  I  am  content  to  let  the  question  rest.  I  propose  to  support  this 
plan  in  toto,  for  I  believe  that  it  is  the  best  thing  we  can  get  under  the  prssent  condi- 
tions. (Applause.) 

Mr.  Glass:    Mr.  Chairman,  if  nobody  else  desires  to  speak  upon  this  amendment,  I 
100— Const.  Deb. 


3018 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Simply  want  to  say  to  the  Convention  that  I  shall  not  now  reply  to  the  assaults  that 
have  been  made  upon  this  plan  by  certain  gentlemen  of  the  Convention  of  the  domi- 
nant party  and  certain  other  gentlemen  of  the  Convention  of  the  minority  party.  So 
far  as  I  am  concerned,  I  am  not  restive  under  their  attacks.  Nothing  has  been  said 
against  this  plan  that  has  not  been  said  a  thousand  times  and  met,  answered  and  over- 
thrown. When  I  vote  I  have  no  apologies  or  explanations  to  make  to  anybody  what- 
ever. The  objections  I  had  to  any  material  features  of  this  plan  I  stated  to  an  audiiance 
that  was  called  together  in  brotherly  conference;  and  I  do  not  propose  to  state  them 
now. 

Th^  question  having  been  taken,  the  result  was  announced— Ayes  21,  noes  44— as 
follows: 

Ayes— Messrs.  Blair,  Bristow,  Brooke,  Crismond,  Davis,  Earman,  Gillespie,  Green, 
Hamilton,  Hubard,  Ingram,  Marshall,  Mcllwaine,  Pedigo,  Phillips,  Pollard,  Rives,  Sum- 
mers, Thom,  Waddill,  Watson — 21. 

Noes — Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barbour,  Thomas  H. 
Barnes,  Bouldin,  Braxton,  P.  W.  Campbell,  Carter,  Daniel,  Dunav/ay,  Eggleston,  Fairfax, 
Fletcher,  Garnett,  Gilmore,  Glass,  B.  T.  Gordon,  James  W.  Gordon,  Hardy,  Hatton, 
Hooker,  Hunton,  Claggett  B.  Jones,  Keezell,  Lawson,  Lindsay,  Lovell,  Miller,  Moncure, 
R.  Walton  Moore,  O'Flaherty,  Pettitt,  Quarles,  Smith,  Stuart,  Tarry,  Thornton,  Turn- 
bull,  Walker,  Willis,  Withers,  Wysor,  the  President — 44. 

The  amendment  was  rejected. 

The  President:    The  question  is  on  the  adoption  of  the  section. 

Section  3  was  read. 

The  motion  was  agreed  to. 

Mr.  Braxton:  I  move  to  amend  section  3  by  inserting  at  the  end  of  line  26  these 
words:  "Who  is  blind  or  physically  unable  to  prepare  his  ballot  or*  who  shall  make 
oath  before  the  judges  of  election  that  he  is  unable  to  read."  So  that  the  sentence, 
as  amended,  will  read  as  follows: 

Every  person  registered  under  this  provision,  who  is  not  blind  or  otherwise  phy- 
sically disabled  shall  prepare  and  deposit  his  ballot  without  aid  from  another,  on  such 
printed  form  as  may  be  prescribed  by  law;  but  any  voter  registered  prior  to  January 
1,  1904,  who  .  is  blind  or  physically  unable  to  prepare  his  ballot,  or  who  shall  make 
oath  before  the  judges  of  election  that  he  is  unable  to  read,  may  be  aided  in  the  pre- 
paration of  his  ballot  by  such  officer  of  election  as  he  may  himself  designate. 

The  effect  of  this  amendment  is  merely  to  prevent  a  man  from  getting  aid  in  the 
preparation  of  his  ballot,  when  he  is  able  to  read.  Under  the  provisions  of  this  article 
it  is  probable  that  the  great  bulk  of  the  white  voters  of  the  State,  numbering  in  the 
neighborhood  of  300,000,  will  be  registered.  Of  that  300,000  voters  I  believe  there  are 
only  about  36,000  who  are  unable  to  read.  Those  who  are  blind  or  who  are  physically 
unable  to  prepare  their  ballots  are  of  so  small  a  number  that  they  need  not  be  counted. 
So  that  there  will  be,  in  all  probability,  registered  under  the  temporary  provision  of 
this  section  from  250,000  to  260,000  voters  who  are  neither  blind  or  physically  unable 
to  write  their  own  ballots,  nor  illiterate;  and  yet  every  one  of  these  men  will  be 
authorized  to  have  their  ballots  fixed  for  them,  although  they  may  be  able  to  read 
as  well  as  you  or  I  can. 

Now,  Mr.  President  and  gentlemen  of  the  Convention,  it  has  been  said  again  and 
again  that  the  necessity  of  preventing  bribery  and  corruption  in  elections  is  almost 
as  great  as  that  of  controling  the  negro  vote.  So  far  as  I  see  there  is  practically 
nothing  in  here  that  is  not  in  the  law  to-day  that  will  tend  to  prevent  bribery  in  elec- 
tions. As  has  been  stated  here  so  often  and  so  forcibly  by  the  gentleman  from  Page, 
the  most  efficient,  and  I  may  say  the  only  efficient,  method  of  preventing  the  selling 
of  votes  is  to  prevent  the  man  who  sells  them  from  demonstrating  the  delivery  of 
them.    If  a  man  who  is  neither  blind  nor  physically  disabled  and  who  can  read,  asks 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  Ox  VIEGIXIA. 


3019 


somebody  to  fix  his  ballot  for  him  there  can  be  but  one  motive,  and  that  is  to  show  that 
he  votes  his  ballot  which  he  has  sold,  in  the  way  he  agreed  to  vote  it.  When  you 
have  deprived  him  of  that  you  have  taken  the  greatest  step  towards  preventing  bribery 
in  elections  that  you  can  possibly  take.  It  is  not  proposed,  by  this  amendment,  to 
prevent  any  man  who  cannot  read  from  getting  assistance  in  fixing  his  ballot.  When 
a  man  asks  another  to  fix  his  ballot  for  him  the  only  legitimate  excuse  he  can  make  for 
asking  it  is  that  he  cannot  read.  This  amendment  simply  says  that  if  he  cannot 
read  he  can  have  assistance,  and  if  he  can  read  he  shall  not  have  assistance,  because 
there  is  then  no  legitimate  excuse  for  his  having  assistance. 

Mr.  Keezell:  Don't  you  think  ihat  it  could  sometimes  happen  that  a  man  who 
might  read  very  poorly,  but  vrho  might  still  be  a  man  of  considerable  standing  in  his 
community,  would  feel  himself  unable  to  prepare  his  ballot,  and  wo\ild  want  to  vote, 
but  yet  would  not  be  willing  to  come  up  and  make  oath  that  he  could  not  read. 

Mr.  Braxton:  Xo,  sir.  I  do  not  think  that  could  happen,  but  if  it  did  happen 
it  would  not  be  in  one  time  out  of  fifty  thousand.  A  man  who  can  read  can  certainly 
read  the  names  of  the  candidates  on  the  ticket,  and  if,  notwithstanding  the  fact  that 
he  can  read,  he  has  not  got  sense  enough  to  understand  the  names  he  ought  not  to 
vote.  But  that  would  never  happen,  if  he  is  a  man  such  as  you  have  mentioned,  except 
in  some  very  extraordinary  case. 

I  say  that  when  a  man  asks  another  to  fix  his  ballot  there  can  be  but  one  legiti- 
mate excuse,  for  it  and  that  is  that  he  cannot  read  it,  or  that  he  is  blind  or  physically 
disabled  from  fixing  it  himself. 

By  permitting  a  man  who  can  read  to  have  assistance  in  the  preparation  of  his 
ballot  you  throw  the  door  wide  open  to  practices  of  fraud,  and  you  fail  to  avail  your- 
self of  a  well-lmown  and  thoroughly  tried  experiment  that  can  work  no  hardship  upon 
any  man,  by  saying  to  him  that  if  he  is  able  to  fix  it  himself  you  will  not  allow  any- 
body else  to  fix  his  ballot  for  him.  Xo  man  who  is  registered  after  1904  is  allowed  to 
receive  any  assistance,  whether  he  can  read  or  not,  unless  he  is  blind  or  physically 
disabled  from  the  preparation  of  a  ballot.  I  propose  that  the  only  diiference  betv.-een 
the  members  of  the  present  electorate  and  those  of  the  future  electorate,  shall  be 
that  the  man  of  the  present  electorate  shall  have  assistance  if  he  cannot  read,  but  if 
he  can  read,  he  should  not  have  any  assistance  in  the  preparation  of  his  ballot,  any 
more  than  the  members  of  the  future  electorate  shall  have  that  assistance. 

I^lr.  Dunaway:  Will  the  gentleman  permit  me  to  call  his  attention  to  the  fact 
that  it  is  prescribed  here  that  he  may  get  assistance  from  such  judge  of  election  as 
he  may  designate  and  that  there  will  then  be  no  chance  of  selling  his  vote,  because 
you  have  already  provided  that  none  of  the  judges  shall  be  candidates. 

Mr.  Braxton:  Z^Jy  friend  does  not  understand.  A  man  will  sell  his  vote  for  the 
Republican  ticket  and  in  order  to  show  that  he  votes  the  Republican  ticket,  although 
he  can  read  as  well  as  you  can,  he  will  agree  to  call  on  the  Republican  judge  to  fix 
his  ballot  for  him  and  that  shall  be  the  proof  that  he  voted  as  he  agreed  to  vote,  and 
that  he  delivered  the  goods  which  he  sold.  I  wish  to  limit  the  opportunity  as  far  as 
possible,  for  the  commission  of  fraud  of  this  kind  and  provide  that  a  man  shall  not 
call  in  assistance  In  the  preparation  of  his  ballot,  unless  he  is  unable  to  read.  Then 
a  man  will  not  buy  his  vote  because  there  is  no  way  in  which  he  can  tell  that  the 
vote  has  been  delivered. 

Mr.  Blair:  I  would  like  to  ask  the  gentleman  a  question  for  information  as  I 
want  to  understand  his  proposition.  Is  it  your  proposition  that  no  voter  who  can 
read  can  have  assistance  simply  because  he  can  read? 

Mr.  Braxton:  The  proposition  is  sirnply  this.  It  is  provided  that  those  who 
register  after  1904  shall  not  have  assistance  unless  they  are  blind  or  physically  unable 
to  prepare  their  ballot.  I  propose  now  that  those  who  are  registered  before  1904  shall 
have  assistance  if  they  are  blind  or  physically  imable  to  prepare  their  ballots  or 
unable  to  read;  but  if  they  are  neither  blind  nor  physically  unable  to  prepare  their 


3020 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


ballot  nor  unable  to  read,  they  shall  not  have  assistance,  because  there  is  no  legitimate 
excuse  for  giving  them  assistance. 

Mr.  Blair:  Do  you  not  think  there  is  many  a  man  who  can  read  who  can  not 
mark  his  ballot? 

Mr.  Braxton:  No,  sir.  I  cannot  agree  with  my  friend  on  that  point.  I  think  it 
would  be  a  very  rare  thing  to  find  a  man  who  can  read  his  ballot  and  yet  does  not 
know  how  to  vote  it;  and  I  do  not  think  that  in  order  to  meet  such  a  very  extraordi- 
nary case  as  that  we  should  throw  open  the  doors  to  infinite  corruption  by  permitting 
250,000  voters,  who  may  choose  to  sell  their  votes,  to  avail  themselves  of  this  oppor- 
tunity to  do  so. 

Mr.  Wysor:  Mr,  President,  I  hope  it  will  be  the  pleasure  of  the  Convention  to 
vote  down  the  amendment  of  the  gentleman  from  Augusta  (Mr.  Braxton).  Originally 
I  thought  that  every  man  ought  to  have  aid  in  marking  his  ballot,  but  I  am  willing  that 
it  may  be  applied  to  the  future  voter  only  and  that  he  may  be  required  to  mark  his 
ballot  as  an  educational  qualification  to  voting.  Now  there  are  a  great  many  men  in 
my  county  who  can  read,  but  who  perhaps,  cannot  mark  their  ballots.  When  we  have 
a  great  long  ballot  such  as  the  one  we  have  in  presidential  elections,  I  want  somebody 
to  mark  my  own  ballot.  I  believe  the  men  in  my  county  are  as  intelligent  citizens  as 
uny  in  the  Commonv/ealth,  and  you  may  go  there  and  you  will  find  some  of  the  best 
citizens  in  the  county  cannot  mark  their  ballots  properly.  You  take  an  old  man,  a 
farmer,  a  man  who  is  not  used  to  doing  such  things  as  that,  his  hands  are-  stiff,  and  he 
is  not  accustomed  to  it,  and  he  goes  into  the  dark  booth  with  his  spectacles  on  and 
he  cannot  see  the  names.  He  ought  to  be  allowed  to  have  somebody  to  show  him  how 
to  mark  his  ballot  if  he  wishes.  We  are  interested  in  this  matter  of  the  permanent 
roll,  and  we  want  to  have  men  upon  it  to  cast  their  votes  correctly  and  not  in  such  a 
manner  as  to  allow  a  lot  of  ballots  to  be  thrown  out. 

As  to  fraud,  we  can  have  laws  against  buying  votes  which  will  be  more  or  less 
effective.  The  man  who  sells  his  vote  wants  to  get  his  reward,  and  he  will  have 
to  get  one  of  the  officers  to  mark  his  ballot.  Fraud  will  soon  be  detected,  and  you 
will  soon  catch  a  man  who  is  buying  votes  by  the  men  he  selects  to  mark  his  ballot. 
This  is  the  provision  the  gentleman  from  Augusta  (Mr.  Braxton)  has  been  arguing 
for  heretofore,  and  I  hope  the  Convention  will  vote  it  down  unanimously.  Then  he 
can  console  himself  with  an  incident  which  took  place  out  West,  A  cowboy  was 
killed,  and  the  other  cowboys  erected  a  tombstone  over  his  grave,  and  wrote  on  it 
"  He  has  done  his  damndest.    Angels  could  do  no  more."  (Laughter.) 

Mr.  Pedigo:  I  would  like  to  have  you  explain  how  it  could  be  told  whether  fraud 
had  been  committed  or  not '  by  knowing  who  marked  the  ballot.  I  wish  you  would 
explain  how  you  could  tell  whether  or  not  there  had  been  fraud  by  either  one  of  the 
three  judges? 

Mr.  Wysor:  Well,  when  I  came  to  mark  your  ballot,  I  would  mark  it  Democratic. 
(Laughter.)    That  would  be  the  best  vote  you  ever  cast  in  your  life.  (Laughter.) 

Mr.  Pedigo:  I  ask  you  how  you  could  tell  by  what  judge  of  election  he  was 
asked  to  mark  his  ballot,  and  whether  he  Vv^as  bribed  or  not. 

Mr.  Wysor:  Well,  for  example,  if  I  saw  a  number  of  Republicans  coming  into 
the  election-room  and  selecting  a  Republican  to  mark  their  ballot,  I  v/ould  conclude 
that  some  Republican  on  the  outside  was  buying  tlieir  votes.  (Laughter.J 

Mr.  Pedigo:  If  he  v/as  a  Democrat  would  you  conclude  that  the  Democrats  were 
buying  his  vote? 

Mr.  Wysor:  They  v/ouldn't  do  it  that  way.  They  would  first  select  one  man  and 
then  another  to  mark  their  ballots.  (Laughter). 

Now,  gentlemen  of  the  Convention,  the  gentleman  from  Augusta  (Mr.  Braxton) 
is  stuck  on  this  provision  just  like  the  gentleman  from  Norfolk  Vv^as  stuck  on  his 
plan.    It  is  simply  another  Annabel  Lee  v/itli  the  gentleman  from  Augusta — 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  TIHGIXIA. 


3021 


For  the  moon  never  beams  without  bringing  him  dreams 

Of  the  beautiful  Annabel  Lee. 
And  the  stars  never  rise  but  he  feels  the  bright  eves 

Of  the  beautiful  Annabel  Lee. 
(Laughter  and  applause.) 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  the  amendment  pro- 
posed hy  the  gentleman  from  Augusta. 

The  question  having  been  taken,  the  result  was  announced— ayes  13,  noes  56. 
The  amendment  was  rejected. 

Mr.  Kendall:    I  move  that  in  line  28,  page  5,  after  the  word  '-'designate"  in  line 
28,  there  be  inserted  the  words  "unless  he  is  unable  to  prepare  the  ballot  Eimself." 
The  amendment  was  rejected. 

Mr.  Waddill:  I  move  to  amend  by  adding  after  the  word  "years"  in  line  6  of  this 
section  the  words  "  under  the  provisions  of  this  Constitution  or  laws  passed  pursuant 
thereto."  As  it  stands  it  limits  the  capitation  tax  to  the  tax  imposed  under  this  Con- 
stitution. I  think  this  amendment  will  make  it  as  it  was  intended  to  be,  and  it  makes 
it  conform  to  Section  1. 

Mr.  Glass:  Mr.  Chairman,  I  think  that  is  what  the  section  provides  now.  It 
provides  that  the  poll-tax  as  a  prerequisite  to  voting  shall  not  be  required  by  this 
Constitution  until  after  January  1st,  1904. 

Mr.  Waddill:  I  do  not  think  it  makes  it  clear  enough.  By  this  section  it  says 
he  must  pay  the  capitation  tax  for  the  preceding  three  years;  that  is,  those  who  have 
registered  after  1904.  He  may  have  to  pay  a  capitation  tax  for  the  years  1902,  1903, 
and  1904.    This  will  make  it  clear  as  to  what  you  mean. 

Mr.  Glass:    I  think  it  is  plain  what  is  intended. 

The  amendment  was  rejected. 

Mr.  Braxton:  Mr.  President,  I  move  to  amend  this  section  by  inserting  at  the 
end  of  line  26  these  words:  "  Who  is  blind,  unable  to  read,  or  physically  unable  fo 
prepare  a  ballot." 

It  seems  to  me  and  to  a  number  of  gentlemen  who  agree  with  me,  that  a  man 
who  can  read  ought  not  to  have  assistance,  but  many  of  them  think  it  unwise  to 
require  him  to  make  oath  that  he  cannot  read.  The  effect  of  this  amendment  is  to 
omit  the  matter  of  taking  the  oath,  and  merely  provide  that  those  shall  be  entitled  to 
assistance  who  are  blind,  unable  to  read,  or  physically  unable  to  prepare  their  ballots; 
but  if  he  lias  none  of  those  impediments  that  he  shall  not  be  entitled  to  assistance. 

The  amendment  was  rejected,  there  being,  on  a  division — ayes  18,  noes  36. 

iMr.  Gillespie:  I  move  to  strike  out  the  words  "officer  of  election"  at  the  end 
of  line  27,  and  insert  the  word  "person."  The  clause  would  then  read:  "may  be 
aided  in  the  preparation  of  his  ballot  by  such  person  as  he  may  designate." 

Mr.  Blair:  I  will  state,  gentlemen  that  I  advocate  this  amendment,  and  my 
reasons  for  doing  so  are  these:  That  if  you  accomplish  what  you  claim  this  suffrage 
plan  will  do,  that  is.  to  purify  the  electorate,  then  there  is  no  reason  for  the  method 
that  has  obtained  in  the  State  of  Virginia  for  so  many  years,  of  having  an  election 
officer  to  prepare  the  ballots  of  a  voter  whether  he  wants  them  to  do  so  or  not. 

Unless  you  allow  the  voter,  when  he  comes  to  the  polls,  to  designate  who  shall 
mark  his  ballot,  what  will  be  the  result?  The  dominant  political  part}'-  will  select 
three  judges  of  election,  two  of  them  coming  from  that  party  and  one  from  the  other 
as  we  have  at  present,  and  the  majoritj*  of  the  judges  will  select  who  shall  mark  the 
licket. 

The  question  having  been  taken,  the  result  was  announced — ayes  11,  noes  59. 
The  amendment  was  rejected. 

The  Presiding  Officer:    The  question  now  is  upon  the  adoption  of  Section  3. 
Mr.  R.  L.  Gordon:    Mr.  President  and  gentlemen  of  the  Convention,  I  shall  not 
detain  you  but  a  moment.    I  simply  desire  to  offer  the  same  amendment  that  I  offered 


3032 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


in  the  Conference  on  this  section,  and  that  is  to  insert  in  line  23,  after  the  word 
"  election,"  the  foflowing: 

Provided,  that  he,  his  wife,  or  his  parent,  be  the  bona  fide  owner  of  property 
assessed  for  taxes  to  the  value  of  $200;  and  provided  further,  that  this  property 
qualification  shall  not  apply  to  any  soldier  mentioned  in  Section  2,  or  the  descendant 
of  such  soldier. 

Now,  Mr.  President,  I  shall  not  detain  this  honorable  body  but  a  moment.  I 
desire  only  to  say  that,  while  the  provision  which  is  made  here  for  the  present  voter 
is  ample  and  sufficient,  yet  in  the  mind  of  some  of  us  the  provision  which  is  made 
for  the  future  voter  is  totally  inadequate. 

I  do  not  desire  to  detain  this  body  with  the  arguments  which  I  have  already  ad- 
dressed to  the  Conference.  I  simply  desire  to  put  this  amendment  into  the  record, 
and  give  it  to  the  gentleman  in  this  body  who  believes  that  a  small  property  qualifica- 
tion so  arranged  as  to  affect  the  great  body  of  colored  men  of  this  State  and  very 
few  of  the  white  race  of  this  State  will  be  beneficial  to  the  future  electorate  of  Vir- 
ginia, and  vv^ill  tend  more  to  lift  up  and  purify  elections  and  the  election  methods  than 
any  of  these  little  nostrums  which  gentlemen  have  provided  here  in  the  shape  of 
plasters  and  other  remedies  such  as  making  a  man  swear  that  he  will  not  buy  a  man 
and  making  him  promise  to  be  good.  Let  us,  Mr.  President,  if  we  really  desire  to 
purify  the  elections  of  this  State,  reach  down  to  the  root  of  the  evil.  Tear  up  the  root, 
and  the  growth  that  we  all  regret,  will  be  destroyed  v/hen  you  destroy  the  root. 

I  desire  to  say,  further,  Mr.  President,  that  this  is  an  amendment  with  which 
this  body  is  entirely  familiar,  and  it  needs  no  explanation  here.  I  would  say  for  the 
benefit  of  my  Republican  friends  who  may  desire  to  support  it,  that  its  effect  is  sim- 
ply to  apply  a  property  qualification  to  the  future  voter  of  Virginia,  not  to  the  man 
who  would  be  put  upon  this  permanent  roll,  but  the  future  voter;  and  that  there  is 
exempted  from  its  operation  the  soldier  and  his  descendant.  (But  it  will  apply  to  all 
other  people.  1  desire  further  to  say,  sir,  that,  so  far  as  I  am  individually  concerned, 
I  would  be  perfectly  willing  to  strike  out  the  educational  qualification  for  the  future 
voter  if  this  small  property  qualification  were  admitted.  I  believe  that  the  educational 
qualification  as  to  the  future  voter  is  going  to  affect  some  of  rny  friends  from  some  of 
the  counties  of  this  State  a  great  deal  more  than  a  small  property  qualification  arranged 
as  this  is. 

Mr.  Summers:  Mr.  President,  we  would  like  to  have  the  views  of  the  gentleman 
from  Louisa  on  this  subject.  The  twelve  disciples  of  this  Convention  have  never 
been  posted  as  to  his  views  on  this  question.  We  have  plenty  of  time.  The  generosity 
of  the  Convention  has  given  us  plenty  of  time. 

Mr.  R.  L.  Gordon:  I  am  very  much  obliged  to  my  Republican  friend,  and  I  would 
like  very  much  to  discuss  this  question  if  I  could  do  so  to  the  edification  of  my  Repub- 
lican brethren  without  such  a  tremendous  punishment  of  my  Democratic  brethren. 
But  if  the  gentleman  had  been  in  the  Democratic  Conference  and  had  seen  the  scrap- 
ping and  the  row  that  we  Democrats  have  had  before  we  could  agree  on  this  proposi- 
tion, he  would  not  ask  any  Democrat  to  repeat  his  argument.  Because,  if  those  argu- 
ments were  repeated,  sir,  you  yourself  would  resign  and  go  home  before  you  got 
through  with  the  performance. 

The  Presiding  Officer:  The  question  is  on  agreeing  to  the  amendment  of  the 
gentleman  from  Louisa  (Mr.  Gordon). 

The  question  having  been  taken  by  ayes  and  noes,  the  result  was  announced— 
ayes  14,  noes  57 — as  follows: 

Ayes— Messrs.  Barbour,  Thomas  W.  Barnes,  Boaz,  Brooke,  Brown,  Fletcher.  R.  L. 
Gordon,  Green,  Hardy,  Hubard,  Claggett  B.  Jones.  Moncure,  Watson,  and  Willis— 14. 

Noes— Messrs.  George  K.  Anderson,  W.  A.  Anderson,  Ayers.  Blair,  Bouldm,  Brax- 
ton Bristow,  P.  W.  Campbell,  Carter,  Crismond,  Daniel,  Davis,  Dunaway,  Earman, 
Eggleston,  Fairfax,  Garnett,  Gilmore,  Gillespie,  Glass,  James  W.  Gordon,  Gwyn,  Han- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3023 


cock,  Hatton,  Hooker,  Hunton,  Ingram,  Keezell,  Kendall,  Lawson,  Lincoln,  Lindsay, 
Loveil,  Marshall,  Mcllwaine,  Miller,  R.  Walton  Moore,  Munday,  O'Flaherty,  Pedigo, 
Pettit,  Phillips,  Pollard,  Quarles,  Rives,  Smith,  Stebbins,  Stuart,  Summers,  Tarry, 
Thornton,  Turnbull,  Waddill,  Walker,  Withers,  Wysor,  and  the  President — 57. 

The  amendment  v:b.s  rejected. 

Mr.  Gillespie:  I  move  to  amend  the  section  under  consideration  by  striking  out 
the  words  beginning  in  line  10,  with  the  vrords  "and  shall"  dovrn  to  and  including  the 
v\'ords  "registrar  of  election"  in  line  23,  as  follows: 

And  shall,  unless  he  be  physically  disqualified,  make  application  for  registration  in 
his  own.  handwriting,  without  aid  or  suggestion  or  the  use  of  memorandum,  in  the 
presence  of  an  ofiicer  of  registration  of  the  precinct  in  which  he  resides,  setting  forth 
the  names  and  residence  of  his  parents,  his  own  name,  age,  place,  and  date  of  birth, 
his  occupation  and  place  of  residence  at  the  time  and  for  two  years  prior  to  the  date 
of  his  application;  and  if  he  has  previously  voted,  then  to  state  in  what  State,  county, 
or  city,  and  voting  precinct  he  last  voted;  and  he  shall  answer,  on  oath  any  and  all 
questions  propounded  to  him  by  the  registration  ofiicer  affecting  his  qualification  as  an 
elector,  which  said  questions  and  answer  shall  be  reduced  to  writing;  having  done 
which  and  made  oath  to  his  statement,  he  shall  be  duly  listed  by  the  registrar  of  elec- 
tion. 

The  amendment  vs-as  rejected. 

Mr.  Glass:  Mr.  President,  it  has  been  suggested,  and  if  no  objection  is  offered  from 
any  other  source  I  shall  not  object,  that  the  words  "  the  names  and  residence  of  his 
parents,"  in  line  14,  page  4,  in  the  application  for  registration,  be  stricken  out. 

Mr.  R.  L.  Gordon:  I  am  not  going  to  support  this  article,  but  I  am  going  to 
support  the  Constitution.  (Applause.)  I  would  like  to  support  the  article,  but  there 
are  too  many  precious  things  in  this  Constitution  to  allow  me  to  vote  against  it  just 
because  I  cannot  have  my  own  way  on  the  suffrage  matter.  (Applause.)  But  I  do 
think,  ]Mr.  Chairman,  that  we  ought  not  to  cut  down  the  educational  qualification  one 
iota. 

:\rr.  Stebbins:  Mr.  President,  I  hope  the  Convention  will  vote  down  this  amend- 
ment. I  think  we  have  gone  as  far  as  we  can  in  making  the  requirements  for  the 
future  voter  as  light  as  possible,  and  that  we  can  go  no  further. 

("  Question."    "  Question.") 

The  Presiding  Officer:  The  question  is  on  the  adoption  of  the  amendment  of  the 
gentleman  from  Lynchburg. 

The  question  having  been  taken,  the  result  was  announced — ayes  37,  noes  32,  as 
follows : 

Ayes — Messrs.  W.  A.  Andersen.  Ayers,  Blair.  Braxton,  Bristow.  P.  W.  Campbell, 
Crismond,  Daniel.  Davis.  Dunaway.  Earman.  Fletcher,  Gilmore,  Gillespie,  B.  T.  Gordon, 
Gwvn,  Hancock.  Hooker.  Hunton.  Ingram.  Keezell.  Kendall,  Loveil.  ^larshall.  ^loncure, 
Munday.  O'Flaherty.  Parks,  Pedigo,  Phillips,  Quarles,  Rives,  Stuart,  Summers,  Waddill, 
Walker,  and  Wysor — 37. 

Xoes — Messrs.  George  K.  Anderson,  Barbour,  Thomas  H.  Barnes,  Boaz,  Bouldin, 
Brooke,  Brown,  Eggleston,  Fairfax,  Garnett.  James  W.  Gordon.  R.  L.  Gordon.  Green, 
Hardy,'  Hatton,  Claggett  B.  Jones,  Lawson,  Lindsay,  Mcllwaine.  Miller,  R.  Walton 
Moore,'  Pettit,  Pollard.  Smith,  Stebbins,  TariT-  Thornton,  Turnbull,  Watson,  Willis, 
Withers,  and  'the  President— 32. 

The  amendment  was  agreed  to. 

Mr.  Glass:  Mr.  President,  there  is  an  amendment  suggested  by  the  gentleman 
from  Northampton,  to  vrhich  I  shall  raise  no  objection,  if  nobody  else  does.  On  page  5, 
line  28.  after  word  "designate,"  it  is  proposed  to  insert  these  words:  "So  far  as 
consistent  with  the  provisions  of  this  Constitution  the  absolute  secrecy  of  the  ballot 
shall  be  maintained,  and  to  this  end  the  General  Assembly  may  enact  such  laws  as 
may  be  necessary." 


3024 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  Kendall:  I  will  saj^  gentlemen,  that  there  is  nothing  in  the  article,  as  now 
framed,  as  far  as  I  can  see,  that  requires  that  the  ballot  shall  be  secret,  and  there  is 
no  reason  why  the  ballot  could  not  be  thrown  on  a  table  where  the  ballot-boxes  are 
kept,  and  anybody  could  go  up  and  prepare  a  ballot  there.  That  defeats  the  object 
of  a  secret  ballot,  and  it  gives  the  fullest  opportunity  for  fraud. 

Mr.  Brooke:  Is  there  anything  in  the  article  which  would  prevent  the  Legislature 
from  passing  such  a  law? 

Mr.  Kendall:    No,  sir;  but  I  want  to  make  it  mandatory  upon  them  to  do  it. 

Mr.  Glass:  One  section  of  the  report  says  that  the  General  Assembly  shall  pro- 
vide by  law  for  the  fair  and  orderly  conduct  of  all  elections.  However,  I  raise  no 
objection  to  the  amendment. 

The  Presiding  Officer:  The  question  is  upon  the  adoption  of  the  amendment 
offered  by  the  gentleman  from  Northampton. 

The  question  having  been  taken,  the  result  was  announced — ayes  42,  noes  26. 

The  amendment  was  agreed  to. 

Mr.  Glass:    I  move  the  adoption  of  Section  3,  as  amended. 
The  motion  was  agreed  to. 

On  motion  of  Mr.  Stuart  the  Convention  adjourned  until  tomorrow,  Wednesday, 
April  2,  1902,  at  10  o'clock  A.  M. 


WEDNESDAY,  April  2,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  George  Cooper,  D.  D. 

ELECTIVE  FRANCHISE. 

The  President:  The  unfinished  business  before  the  Convention  this  morning  is 
the  consideration  of  the  suffrage  article. 

Sections  4,  5  and  6  were  read  and  adopted. 
The  Secretary  read  Section  7. 

Mr.  Gillespie:  I  offer  the  following  amendment  to  come  in  at  the  end  of  Section  7: 
At  the  end  of  Section  7  insert  the  following: 

And  a  copy  of  the  ballots  to  be  used  at  anv  election  shall  be  posted  by  the  Sheriff 
of  the  county  or  Sergeant  of  the  city,  for  at  least  ten  days  previous  to  the  election, 
at  each  voting  precinct  of  the  county  or  city  where  the  election  is  to  be  held. 

Mr.  President,  the  object  of  this  amendment  is  to  enable  the  voter  before  the  day 
of  the  election  to  see  the  kind  of  ballot  that  he  has  to  vote. 

Now,  the  past  history  of  this  Commonwealth  shows  that  in  certain  counties  ballots 
have  been  offered  to  the  voters,  that  an  intelligent  man  could  scarcely  prepare  in  five 
minutes,  so  as  to  vote  it.  The  object  of  this  amendment  is  to  avoid  that  kind  of  a 
ballot. 

Mr.  Barbour:  May  I  ask  the  gentleman  if  he  does  not  think  the  Legislature 
will  be  competent  to  enact  that  provision  without  constitutional  authority? 

Mr.  Gillespie:  I  do  think  they  would  be  competent,  but  I  do  not  think  it  will  do 
to  trust  the  Legislature  to  enact  a  law  of  this  kind,  because  the  past  history  of  the 
Legislature  of  Virginia  shows  that  they  have  no  regard  for  fair  elections. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Tazewell  (Mr.  Gillespie). 

The  question  having  been  taken,  the  result  was  announced— ayes  9,  noes  53. 

The  amendment  was  rejected. 


DEBATES  OF  THE  CONSTITUTIOJsTAL  CONVENTION  OF  VIRGINIA.  3025 

Mr.  Robertson:  Mr.  President,  I  desire  to  make  a  motion  to  strike  out  this  entire 
section.  I  do  not  care  to  detain  the  Convention,  Mr.  President,  but  I  do  desire,  briefly, 
to  state  why  I  make  the  motion.  We  have  heard  ever  since  we  came  here  about  our 
corrupt  election  laws.  They  say  we  have  had  them  forced  on  us,  and  that  there  is  no 
chance  of  our  getting  rid  of  them.  Now  they  claim  that  we  are  going  to  have  a  new 
-electorate,  and  that  we  can  have  a  new  election  law.  Nothwithstandlng  that  fact,  v/e 
are  putting  practically  the  Walton  law  into  our  Constitution  and  making  it  a  perma- 
nent institution  as  a  part  of  the  organic  law.  We  are  not  only  resorting  to  this 
understanding  clause,  but  we  are  keeping  alive  the  Walton  law.  I  think  it  ought  be 
-done  away  with,  and  the  Legislature  ought  to  be  left  free  to  repeal  that  law,  if  in  the 
•course  of  time  it  sees  proper  to  do  so. 

The  motion  to  strike  out  was  rejected. 

The  President:    The  question  recurs  to  the  adoption  of  Section  7. 

Mr.  O'Flaherty:  I  move  to  reconsider  the  last  vote  for  that  purpose,  and  I  call 
the  attention  of  the  Convention  to  what  I  want  to  do.  I  do  not  want  to  change  the 
section,  and  I  do  not  v/ant  to  strike  it  out.  I  simply  wish  to  add  to  it,  so  that  it  will 
be  possible  to  vote  on  questions  v\^hich  may  come  up.  For  instance,  if  the  question 
were  to  arise  as  to  whether  we  want  to  issue  bonds  or  not,  or  the  question  of  liquor 
licenses  for  different  men  in  a  town,  county  or  precinct.  I  have  looked  at  this  question 
pretty  carefully  and  I  do  not  think  you  can  put  anything  in  the  ballot  but  the  names 
of  the  officers  and  the  office  to  be  voted  for.  It  does  not  provide  for  a  question  to  be 
voted  for,  and  what  I  wished  to  insert  was  "  or  the  question  to  be  voted  upon." 

The  question  having  been  taken  by  yeas  and  noes,  the  result  was  announced — ayes 
28,  noes  35. 

The  motion  to  reconsider  was  rejected. 

Section  7  was  adopted. 

Sections  8  and  9  were  read  and  adopted. 

The  President:    The  Secretary  will  read  Section  10. 

10.  Electors  in  county,  town,  and  city  elections  shall  possess  the  qualifications  and 
"be  subject  to  the  qualifications  heretofore  prescribed  by  this  article;  but  the  General 
Assembly  may  prescribe  a  property  qualification  of  not  exceeding  $250  for  electors  in 
any  county,  town,  or  city  of  the  State  as  a  prerequisite  for  voting  in  any  election  for 
officers  to  be  wholly  elected  by  the  electors  of  such  county,  city,  or*  town,  other  than 
members  of  the  General  Assembly.  Such  action,  if  taken,  to  be  had  upon  the  initiative 
of  the  representatives  in  the  General  Assembly  from  the  city,  town,  or  county  immedi- 
ately affected;  provided,  that  the  General  Assembly  in  its  discretion  may  make  such 
lawful  exemptions  from  the  operation  of  said  property  qualification  as  shall  not  be  in 
conflict  with  the  Constitution  of  the  United  States  or  the  State  of  Virginia. 

Mr.  Davis:  Mr.  President,  I  move  to  amend  this  section  by  striking  out  in  line 
3,  beginning  with  the  word  "  but,"  the  balance  of  the  section,  so  that  there  v/ill  be  no 
property  qualification  for  electors  for  voting  for  county  and  city  officers. 

Mr.  R.  L.  Gordon:  Mr.  President,  before  the  motion  is  put,  I  desire  to  move  to 
strike  out  in  line  7  of  Section  10,  the  words  "  other  than  members  of  the  General  As- 
sembly." I  hope  the  Convention  will  give  me  its  attention  for  a  moment,  because  I 
think  this  is  an  important  matter,  and  it  is  in  line  with  the  whole  idea  suggested  by 
this  section.  I  trust  the  gentleman  from  Lynchburg  will  find  himself  in  position  not 
to  accept  the  amendment. 

The  Convention  will  observe  that  this  provision  giving  the  counties  which  may 
desire  to  do  so  the  right,  through  the  Legislature,  to  adopt  a  property  qualification 
applies  only  to  county  officers.  I  do  not  see  any  good  reason  for  that.  I  hope,  Mr. 
President,  these  gentlemen  will  give  me  their  a^ttention  for  a  moment.  I  shall  not 
detain  the  Convention  unduly,  but  I  do  desire  that  the  body  shall  understand  what 
I  am  saying,  because  I  know  there  is  a  feeling  here  that  any  amendment  ought  to 
be  voted  down,  a  general  feeling  that  we  are  to  support  this  report,  and  that  any 
amendment  to  it  should  be  defeated;  but  I  think  it  is  fair  and  just  tO'  ourselves  to  know 
what  an  amendment  is  before  we  vote  it  down. 


3026  DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 

By  striking  out  the  words  which  I  have  indicated,  "  other  than  members  of  the 
General  Assembly,"  the  section  will  give  to  the  people  of  any  county,  through  the 
Legislature,  the  right  to  have  such  a  qualification  to  apply  to  county  officers  and 
members  of  the  General  Assembly.  I  would  like  to  know  what  good  reason  there  can 
be  for  applying  one  rule  to  the  election  of  county  officers  and  excluding  therefrom 
the  members  of  the  General  Assembly.  The  very  vote  which  we  are  seeking  to  get 
rid  of  in  this  amendment  is  the  vote  that  troubles  us  in  the  election  of  members  of 
the  General  Assembly.  Whenever  there  is  a  political  question  involved  these  ignorant 
people  that  know  nothing  on  earth  about  the  duties  of  citizenship  come  up  and  vote 
as  one  man  against  what  they  believe  to  be  the  will  of  the  majority  ol  the  white 
people  of  their  section. 

Mr.  Dunaway:    This  v/as  designed  to  apply  to  county  officers. 

Mr.  R.  L.  Gordon:    Yes,  sir. 

Mr.  Dunaway:  It  sometimes  happens  that  the  legislative  district  is  composed 
of  two  counties,.  I  just  want  to  call  your  attention  to  that.  That  is  the  reason,  I  take 
it,  for  that  language. 

Mr.  R.  L.  Gordon:  I  am  very  much  obliged  to  the  gentleman  f?om  Lancaster 
for  his  suggestion.  He  makes  the  suggestion  that  in  some  cases  a  legislative  district 
is  composed  of  more  than  one  county.  My  reply  to  that  is,  that  in  such  counties  the 
law  would  not  apply.  It  would  only  apply  to  those  counties  where  each  county  con- 
stituted a  legislative  district,  unless  they  had  similar  action  in  both  counties.  But 
what  I  want  to  call  to  the  attention  of  this  body  is  that  this  is  an  effort  on  my  part  to 
extend  this  local  provision  so  that  it  will  be  of  some  real  and  material  benefit  to  the 
Black  Belt  of  Virginia.  I  trust  that  the  gentleman  representing  the  more  favored 
sections  of  the  State  will  give  us  the  right,  if  any  county  desires  it,  to  apply  a  property 
qualification,  with  such  exemptions  as  it  may  have  under  the  United  States  Constitu- 
tion. I  hope  it  will  be  the  pleasure  of  this  body  to  give  to  those  unfortunate  counties 
not  only  the  right  to  apply  this  qualification  to  county  officers,  but  that  it  will  give 
them  the  right  also  to  apply  it  to  members  of  the  General  Assembly. 

Mr.  O'Plaherty:  I  think  I  shall  vote  for  jour  amendment;  but  this  constitutional 
difficulty  arises  in  my  mind.  The  Constitution  of  the  United  States  provides  that  the 
qualifications  to  vote  for  Congressmen  shall  be  the  same  as  the  qualifications  required 
to  vote  for  the  most  numerous  branch  of  the  State  Legislature.  Would  not  that  raise 
a  difficulty  when  the  qualification  of  voting  for  the  General  Assembly  in  one  part  of 
the  Congressional  district  was  one  thing,  and  in  the  other  part  it  was  another  thing? 

Mr.  R.  L,  Gordon:  That  is  a  Congressional  provision  with  which  I  submit  we 
have  nothing  whatever  to  do. 

Mr.  O'Flaherty:  I  think  we  do  have  something  to  do  with  it,  because  the  only 
right  a  man  has  to  vote  for  a  Congressman  is  the  right  given  him  to  vote  for  members 
of  the  General  Assembly,  and  that  would  apply  to  most  of  the  electors  in  some  Con- 
gressional districts  perhaps. 

Mr.  R.  L.  Gordon:  I  think,  Mr.  President,  there  is  no  real  difficulty  along  that 
line,  because  that  matter  can  be  governed  by  law.  There  is  no  difficulty  about  provid- 
ing that  this  property  qualification  shall  appy  to  people  voting  for  members  of  the 
General  Assembly,  and  even  if  it  does  apply  to  Congressmen  what  objection  would 
there  be  to  it?  What  objection  would  there  be  to  the  people  of  a  county  applying  a 
property  qualification  to  the  voters  of  that  county  even  if  it  cut  down  the  vote  in  the 
Congressional  election?    It  cannot  do  any  materal  mischief. 

Mr.  Braxton:  May  I  suggest  to  the  gentleman,  in  that  connection,  that  if  his 
amendment  is  adopted  it  would  appply  to  the  county,  provided  only  that  the  county 
alone  elect  the  member  of  the  Legislature?  If  two  or  more  counties  are  in  one  dis- 
trict, it  will  not  apply,  as  I  understand. 

Mr.  R.  L.  Gordon:    Then  it  would  not  apply. 

Mr.  Braxton:    But  that  difficulty  would  not  be  avoided  in  the  election  of  Congress- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


3027 


men  because  in  the  same  Congressional  district,  and  in  the  same  election  to  elect  the 
same  officers,  one  qualification  would  be  applied  to  a  part  of  the  voters  and  another 
qualification  would  be  applied  to  another  part  of  the  voters.  In  other  v\-ords,  it  would 
not  apply  to  the  whole  Congressional  district  while  it  would  apply  to  the  whole  consti- 
tuency.   It  occurs  to  me  that  would  make  a  substantial  difference. 

Mr.  R.  L.  Gordon:  I  appreciate  that,  and  it  vfould  have  the  effect,  perhaps,  of 
cutting  down  the  vote  in  that  county;  but  I  do  not  see  what  objection  the  Congressman 
would  have,  representing  a  white  county  and  a  black  county,  to  have  the  electorate 
whitened  in  the  black  county.  I  do  not  see  how  it  would  make  any  difference  even  if 
one  county  should  cut  dovvm  its  vote  both  as  to  its  representation  in  the  Legislature 
and  as  to  the  Congressman.  It  might  affect  your  representation  in  Congress,  but  there 
is  some  question  as  to  that,  sir,  and  I  do  not  see  that  there  is  any  real  objection  to  it. 

Mr,  Lindsay:  May  I  suggest  before  the  gentlemen  takes  his  seat,  that  the  very 
object  sought  to  be  obtained  in  this  section  will  be  largely  defeated  unless  his  amend- 
ment is  adopted.  I  think  that  a  member  of  the  Legislature  would  be  very  slow  to 
take  the  initiative  in  this  matter,  if  'his  own  election  was  at  stake ;  but  if  his  election 
in  the  future  depended  upon  the  restricted  electorate,  he  would  represent  the  public 
sentiment  in  the  matter  and  give  control  of  these  local  officers.  It  seems  to  me  he 
would  be  very  slow  to  give  the  county  the  right  to  elect  county  officers  when  his  elec- 
tion depends  upon  the  very  people  he  cuts  off. 

Mr.  Kendall:  Mr.  Chairman  and  gentlemen  of  the  Convention,  I  trust  you  will 
give  me  3^our  attention  in  this  matter,  because  it  is  a  thing  absolutelj^  vital  to  my 
people,  and  if  this  provision  is  adopted  you  will  defeat  absolutely  the  whole  purpose 
for  which  this  section  was  drawn.  Apart  from  the  objection  which  was  raised  by  the 
gentleman  from  Warren,  which  it  seems  to  me  is  conclusive,  and  which  was  in  the 
mind  of  those  who  endorsed  this  section  when  it  was  drawn,  there  are  other  objec- 
tions which  go  to  the  whole  question  and  which  show  that  the  purpose  of  this  pro- 
vision from  beginning  to  end.  will  be  defeated  if  it  is  amended  as  the  gentleman  from 
Louisa  desires.  Now.  I  wish  to  ask  you,  gentlemen,  to  give  me  your  ear  and  atten- 
tion upon  that  subject. 

The  only  reason  that  the  members  of  this  Convention  from  the  western  part  of 
this  State  have  consented  to  give  their  endorsement  to  this  provision  is  that  as  it  is 
now  drawn  the}^  know  it  will  not  by  any  possibility  apply  to  the  white  counties. 

The  very  objection  which  was  raised  by  the  gentleman  from  Albemarle  is  the 
reason  which  we  rely  upon  in  appealing  to  the  men  from  the  white  counties  to  give 
us  their  endorsement  here.  It  is  not  desirable  to  restrict  the  electorate  of  Virginia  in 
county  matters  except  where  necessity  requires  it.  It  is  not  desired  that  it  shall  be  done 
in  any  county  where  the  white  people  have  control  of  that  county,  but  it  is  desir- 
able in  those  counties  where  the  white  people  do  not  control,  where  they  are  not 
going  under  the  provision  of  this  article  to  have  control  of  their  affairs.  This  pro- 
vision was  concocted  to  meet  their  necessities.  Now  I  know  the  facts.  It  has  been 
demonstrated  first  in  the  committee  and  then  in  the  conference  and  hy  private  confer- 
ence v/ith  members  of  this  Convention.  I  knovr  the  fact  that  if  the  provision  which 
the  gentleman  from  Louisa  has  asked  to  have  made  here  shall  be  adopted  it  will 
result  inevitably  in  striking  out  the  whole  section,  because  gentlemen  will  not  under- 
take to  saddle  that  provision  upon  their  counties  if  it  could  be,  by  any  possibility, 
thought  that  it  could  ever  be  placed  upon  them. 

Mr.  R.  L.  Gordon:  Does  the  gentleman  think  that  any  gentleman  here  represent- 
ing a  white  county  which  is  not  at  all  afflicted  by  this  negro  vote  has  any  doubt  or  hesi- 
tation or  any  fear  that  the  man  elected  by  the  white  men  of  those  counties  will  under- 
take through  the  Legislature  to  put  a  property  qualification  on  these  people? 

Mr.  Kendall:  It  was  urged  again  and  again  that  it  would  be  stated  that  in  the 
western  part  of  the  State  and  in  the  white  part  of  the  State  that  it  was  the  purpose 
of  this  Convention  in  this  article  to  place  the  counties  in  the  hands  of  the  propertj^ 


3028  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

owners  of  tHe  county,  and  thereby  make  the  Constitution  unsupportable  in  the  Valley 
and  in  the  Southwest;  and  our  reply  to  that  was  that  as  the  member  of  the  Legislature 
was  to  be  elected  from  the  full  electorate  he  could  by  no  possibility  have  any  sympathy 
with  any  such  movement,  and  he  would  not  dare  to  do  it,  and  -for  that  reason  he 
would  see  to  it,  and  the  whole  Legislature  elected  from  the  full  electorate  would  see 
to  it  that  no  provision  of  that  kind  was  placed  upon  any  of  the  white  counties.  It 
had  gone  so  far  in  the  minds  of  some  gentlemen  that  the  motion  of  the  gentleman 
from  Lynchburg  was  deemed  necessary,  that  this  thing  can  only  be  done  on  the 
initiative  of  the  member  from  the  county.  It  was  not  what  I  desired  but  I  accepted  it 
so  it  might  be  stated  to  those  people  it  could  never  be  placed  upon  them  under  any 
condition  except  where  their  member  was  willing  tO'  accept  it.  Now,  nearly  all  the 
colored  counties  of  this  State  are  so  gerrymandered  in  our  representation  in  the  Leg- 
islature that  they  are  elected  along  with  the  white  county  which  gives  them  control, 
so  that  if  a  black  county  was  in  a  condition  as  many  will  be  in  the  course  of  time, 
to  require  them  to  appeal  to  this  provision  for  protection,  they  would  get  it  although 
it  had  to  be  done  through  the  initiative  of  their  member,  for  nearly  all  the  members 
are  elected  from  counties  which,  by  being  gerrymandered,  have  Democratic  represen- 
tation. I  do  not  desire  that  provision,  I  do  not  desire  that  it  be  done  on  this  initative 
of  the  member.  I  desire  it  without  that,  so  that  the  Legislature  could  have  its  hands 
united  to  do  it  without  the  initiative  of  the  member  from  the  county;  but  in  conference 
that  matter  was  discussed  and  it  was  adopted  in  that  way,  adopted  to  please  these 
gentlemen  who  raise  this  objection  in  the  white  counties,  and  I  say  the  result  of 
adopting  the  provision  as  now  suggested  by  the  gentleman  from  Louisa  will  be  to 
defeat  the  whole  section  from  beginning  to  end.  I  trust,  therefore,  that  the  gentlemen  will 
not  give  it  their  endorsement.  I  do  not  propose  to  discuss  the  merits  of  the  provision, 
as  I  have  done  that  in  conference. 

Mr.  R.  L.  Gordon:  Mr.  President,  I  am  very  sorry  to  have  to  take  issue  with 
my  friend  from  Northampton.  I  do  not  think,  Mr.  President,  that  it  will  have  the 
effect  that  he  suggests,  that  the  gentlemen  from  the  white  sections  of  the  State  will 
vote  to  strike  out  this  article  because  it  is  made  more  effective  for  the  black  sections 
of  the  State.  Now,  it  does  seem  to  me  that  there  is  no  reason  in  the  imaginary  evil 
which  the  gentleman  has  depicted  here.  Is  there  any  gentleman  here  from  beyond 
the  mountains,  or  from  any  section  of  this  State,  who  believes  there  will  be  a  demand 
in  a  white  county  for  the  application  of  this  rule;  and  does  any  gentleman  in  the  white 
section  of  the  State  object  to  extending  an  additional  protection  to  the  black  section 
of  the  State,  when  it  does  not  cost  him  anything  to  do  so,  and  does  not  affect  his 
people  directly  or  indirectly? 

On  the  contrary,»Mr.  President,  it  strikes  m.e  that  it  would  make  this  county  provision 
a  great  deal  more  efficient  and  a  great  deal  more  acceptable  to  this  afflicted  portion  of  the 
State.  If  I  thought  for  one  moment  that  the  gentleman  from  Northampton  was  correct  and 
that  the  striking  out  of  these  words  would  endanger  this  provision,  I  would  not  urge 
it,  because  I  do  not  want  the  provision  stricken  out.  I  was  opposed  to  the  provision 
originally,  because  I  was  opposed  to  all  local  provisions,  but  since  our  suffrage  matter 
has  taken  the  form  in  which  it  now  presents  itself  I  am  thankful  even  for  local  pro- 
visions, and  I  do  not  want  to  do  anything  to  jeopardize  this  local  provision.  I  am 
simply  seeking  to  strengthen  that  provision.  Now,  what  is  the  sense  of  applying  a 
property  qualification  to  people  who  give  comparatively  little  trouble  in  the  election 
of  county  officers?  There  is  scarcely  a  county  in  Virginia  that  has  had  any  serious 
difficulty  in  controlling  this  vote  in  county  elections,  but  the  difficulty  in  controlling 
the  vote  is  where  a  political  question  is  involved.  The  very  amendment  offered  by 
the  gentleman  of  the  opposition  here  shows  that  they  want  to  strike  down  this  pro- 
vision because  they  are  opposing  any  restriction  of  that  vote  which  we  are  seeking 
to  restrict.  I  hope  it  will  be  the  pleasure  of  this  body  to  strike  out  these  words  so  as 
to  give  the  Legislature  the  power  to  make  that  provision  apply  to  members  of  the 
General  Assembly  as  well  as  merely  to  county  officers. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIEGIXIA.  302^ 

Mr.  O'Flaherty:  I  v^'ould  like  very  much  to  vote  for  this  provision,  but  the  ques- 
tion which  I  asked  of  the  gentleman  a  while  ago  in  regard  to  the  constitutional  phrase 
of  the  question  is  to  my  mind  insuperable,  and  further  than  that  it  might  jeopardize  the 
whole  suffrage  plan.  It  is  not  worth  while  for  me  to  recite  constitutional  law  to  this 
learned  Convention,  but  we  all  know  the  only  suffrage  part  of  the  Constitution  of  the 
United  States  is  that  which  says  who. shall  be  eligible  as  electors  to  vote  for  Congress- 
men of  the  United  States.  The  Constitutional  Convention  of  1787  left  the  question  of 
suffrage  entirely  with  the  State,  except  in  so  far  as  it  knew  it  would  be  safe  to  say 
that  a  man  could  vote  for  the  most  numerous  branch  of  the  State  Legislature.  It  was 
thought  wise  to  leave  it  all  with  the  State,  knowing  that  they  would  not  hurt  them- 
selves. Now  I  say  that  for  us  to  perscribe  one  qualification  for  electors  in  one  leg- 
islative district  and  another  qualification  for  electors  in  another  would  absolutely 
render  this  unconstitutional,  and  it  would  draw  into  discussion,  and  perhaps  into 
jeopardy  the  whole  of  this  suffrage  law.  If  it  is  ever  attacked  by  its  enemies  they  are 
going  to  attack  it  at  every  weak  point.  I  say  I  would  like  to  vote  for  anything  that 
the  gentleman  from  Louisa  wishes  us  to  vote  for,  which  he  says  will  give  him  relief. 
I  want  him  to  be  in  a  position  so  that  he  can  say  that  the  local  offices  shall  be  con- 
trolled by  the  white  people  and  I  mean  it  when  I  say  that  if  I  did  not  have  these  con- 
scientious constitutional  scruples  I  should  vote  for  it.  There  are  some  cases  which 
have  already  decided  this  question.  I  think,  and  if  I  had  time  I  could  find  them.  I 
recollect  a  discussion  of  this  matter  in  Tucker's  Constitutional  Law,  and  if  I  remem- 
ber aright  he  discusses  this  very  question.  I  know  it  is  wrong  in  law,  and  for  that 
reason  I  shall  vote  against  it. 

The  amendment  was  rejected. 

The  President:  The  question  recurs  on  agreeing  to  the  motion  made  by  the 
gentleman  from  Franklin  (]vlr.  Davis)  to  strike  out  in  Section  10,  the  entire  section 
beginning  with  the  word  "but"  in  line  3. 

The  question  having  been  taken,  the  result  was  announced — ayes  18,  noes  48. 

The  amendment  was  rejected  and  Section  10  was  adopted. 

The  Secretary  read  Secfion  11. 

Mr.  Davis:  Mr.  President,  and  gentlemen  of  the  Convention,  I  should  hate  very 
much  to  see  this  election  law  go  into  the  Constitution;  but  it  seems  to  me  to  be  now 
a  foregone  conclusion  that  it  is  going  into  the  Constitution  practically  unchanged.  It 
has  been  contended  in  this  Convention  that  there  is  now  no  necessity  for  fraud  in 
elections  in  Virginia  in  order  to  suppress  the  negro  vote  and  keep  the  negro  out  of 
office.  This  is  not  a  political  Convention  and  it  ought  not  to  be.  I  desire  to  move 
an  amendment  to  this  section  proA'iding  for  the  appointm.ent  of  a  Republican  member 
on  the  electoral  board  in  e^-ery  county  in  this  State.  At  present  there  is  only  one 
county  in  the  State  having  a  Republican  member  on  the  board,  and  that  is  my  own 
county.  We  desire  to  have  fair  elections,  and  if  we  intend  to  have  them  both  parties 
ought  to  be  represented  upon  these  boards,  and  the  judges  of  election  ought  to  be 
appointed  upon  the  recommendation  of  the  county  organization  in  the  various  counties, 
that  is,  the  organizations  of  the  Republicans  and  Democrats.  There  are  now,  in  many 
sections  of  this  State,  Republican  judges  of  election  so-called,  appointed  hy  these 
electoral  boards,  all  of  whom  are  Democrats,  and  are  not  Republicans  at  all,  and  are 
known  not  to  be  Republicans  of  character  when  they  are  appointed  on  that  board. 
They  are  appointed  there  for  the  specific  purpose  of  carrjang  on  fraud.  If  this  elec- 
tion law  will  do  what  its  advocates  claim  it  will  do,  that  is,  relieve  the  necessity  of 
fraud  in  this  State,  why  not  have  both  parties  represented  on  this  board?  My  motion 
is  to  strike  out  the  words  in  line  8,  Section  11,  beginning  with  the  word  "and"  and 
ending  with  the  word  "votes"  in  line  11,  and  insert  in  lieu  thereof  the  words  "  and 
representation  on  said  board,  as  well  as  of  said  judges  of  election." 

]\Ir.  Wysov:  Mr.  President,  I  vrant  to  say  to  the  Convention  that  I  intend  to 
vote  for  that  amendment.    I  think  the  Republicans  ought  to  have  representation  on 


3030  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

that  board.  We  do  give  them  representation  among  the  judges  of  election.  We  say- 
that  the  board  shall  appoint  judges  of  election,  and  that  both  parties  shall  be  repre- 
sented. I  think  they  ought  to  have  representation  on  the  electoral  board,  so  as  to 
prevent  fraud. 

Mr.  Braxton:-  Mr.  President,  I  hope  the  amendment  will  not  be  adopted.  It  seems 
to  be  that  what  is  now  contained  in  this  provision  with  reference  to  the  political 
faith  of  officers  ought  to  be  stricken  out.  I  agree  with  the  gentlemen  as  a  matter 
of  fact,  that  in  appointing  an  electoral  board,  or  judges  or  officers  of  election,  the 
appointments  should  be  as  non-partisan  as  possible;  but  I  cannot  agree  with  them 
that  the  political  faith  of  a  man  ought  to'  be  made  the  constitutional  test  of  his 
qualification  for  holding  office.  There  is  no  v/ay  to  tell  vvhat  a  man's  politics  are, 
with  absolute  certainty.  He  claims  sometimes  they  are  one  thing,  and  other  people 
claim  they  are  another.  We  have  a  law  now,  which  says,  I  believe,  in  effect,  that 
the  Republicans  shall  have  representation  in  the  electoral  board;  and  yet  it  is  con- 
tended that  those  men  who  were  put  there  to  represent  the  Republican  party  do  not, 
as  a  matter  of  fact,  represent  that  party.  Who  is  to  determine  it?  My  friend  thinks 
it  should  be  determined  by  political  organizations.  My  friend  must  know  that  there 
are  frequently  rival  political  organizations.  Are  the  courts  to  determine  who  is  to 
have  the  right  to  speak  for  any  particular  party  in  any  particular  county  or  district? 
Are  the  courts  to  determine  what  a  man's  politics  are?  I  would  like  to  ask  my  friend, 
and  also  the  gentleman  from  Lynchburg,  with  reference  to  the  language  used  now. 
It  says  that  this  representation  shall  be  given,  as  far  as  possible,  to  each  of  the  two 
political  parties  which,  at  the  general  election  next  preceding  their  appointment,  cast 
the  highest  and  next  highest  number  of  votes.  Do  you  mean  to  say  the  highest  num- 
ber to  votes  cast  in  that  county  or  in  the  State  or  where?  It  may  be  that  the  Repub- 
licans would  cast  the  highest  number  of  votes  in  the  county  while  the  Democrats 
would  cast  the  highest  number  of  votes  in  the  State.  It  seems  to  me  there  is  aii 
ambiguity  there. 

I  must  say  that  I  believe  it  to  be  a  great  mistake  to  introduce  into  the  fundamental 
law  of  this  State  any  question  as  to  political  affiliations.  Notwithstanding  that  I 
agree  with  what  the  gentlemen  say  as  to  the  propriety  of  making  appointments  in  a 
non-partisan  manner,  yet  I  do  not  think  the  provision  ought  to  be  put  into  the  Consti- 
tution. 

Mr.  Glass:  I  will  state  to  my  friend  that  it  is  not  only  a  possible  thing  to  enforce 
this  provision, 'but  it  is  enforced  in  a  number  of  States  of  the  Union,  and  the  language 
employed  here  was  taken  verbatim  from  the  Constitution  of  the  State  of  New  York. 

Mr.  Braxton:  I  understand  that  it  is  only  nominally  enforced,  and  that  it  is  im- 
possible to  be  enforced  anywhere  any  more  than  it  is  enforced  here  to-day. 

Mr.  Pedigo:  Mr.  President,  it  has  often  been  repeated  in  this  Convention  during 
the  last  nine  or  ten  months,  that  the  electoral  boards  in  almost  every  precinct  in  the 
State  of  Virginia  have  been  selected  out  of  the  vilest  and  most  dishonest  partisans  that 
could  be  possibly  found.  Whenever  they  have  given  the  Republicans,  in  my  county, 
representation  on  that  board,  so  called,  they  have  picked  the  very  meanest  Democrat 
there  was  in  the  precinct,  and  called  hini  a  Republican  and  put  him  on  in  order  to  get 
his  consent  to  every  rascally  thing  they  have  done.  That  has  been  the  universal 
practice  under  this  law. 

Now,  how  will  the  judge  know,  when  he  goes  into  a  county,  who  ought  to  be 
appointed  upon  these  boards?  He  probably  does  not  live  there,  and  is  not  acquainted 
in  the  county.  Some  gentlemen  will  go  to  the  judge  and  ask  for  the  appointment  of  the 
men  contained  on  a  list.  They  have  got  a  state  composed  of  partisans,  and  they  are 
all  party  politicans. 

Mr.  Wysor:  I  am  very  anxious  to  have  this  amendment  passed;  and  if  you  don't 
quit  speaking  you  will  kill  it. 

Mr.  Pedigo:  •!  don't  care  if  I  do  kill  it.    I  would  rather  put  myself  right  than 


DEBATES  OF  TPIE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  3031 

have  this  Convention  do  anything.  In  ansv^'er  to  the  gentleman's  question  about  how 
the  judge  would  know,  I  wish  to  say  that  if  a  party  is  strong  enough  to  have  any 
respectability  at  all  it  has  some  official  organization.  I  am  willing  to  provide  that  the 
members  shall  be  selected  from  five  or  ten  persons  who  are  recommended  by  the  party 
organization,  or  that  he  shall  be  selected  from  five  persons  presented  by  the  party 
organization  of  the  county.  We  are  willing  to  accept  anything  that  has  even  a  little 
tincture  of  honesty  in  it.  If  it  has  just  a  little  tincture  of  honesty  in  it  we  are  willing 
to  accept  it  at  present.  But  we  do  not  want  this  old  election  law  which  has  actually 
brought  the  State  of  Virginia  into  disgrace  and  humiliation  to  be  continued.  It  will 
lead  to  trouble  and  disgrace  in  the  State  if  it  is  continued,  and  we  wai;t  hereafter,  no 
matter  how  much  you  may  restrict  the  electorate,  to  have  the  elections  fair  and  decent. 
We  do  not  want  to  put  a  man  in  office  who  may  be  a  forger  or  a  briber  or  dishonest, 
in  order  to  return,  as  elected,  some  man  who  could  not  honestly  be  elected  to  office 
in  this  State.    That  is  all  we  ask. 

Mr.  :\Ieredith:  Mr.  President  and  gentlemen  of  the  Convention,  I  think  we  ought 
to  ignore  any  question  as  to  who  makes  this  motion.  I  think  we  ought  to  recognize 
the  fact,  which  I  believe  is  correct,  that  this  suggestion  was  made  first  in  the  Demo- 
cratic conference  by  the  gentleman  who  represents  this  suffrage  plan,  and  that  there 
was  quite  a  large  vote  in  favor  of  it.  It  was  defeated,  according  to  my  impression, 
by  a  very  small  majority.  I  think  we  ought  to  look  at  the  question  of  what  is  right 
in  this  matter,  without  any  regard  as  to  what  side  it  comes  from  or  who  starts  it. 
The  fact  is  that  you  are  putting  the  appointment  of  these  officers  in  the  hands  of  the 
judges.  I  think  it  is  our  duty  to  remove  the  judges  as  far  as  possible  from  any 
political  influence.  I  think  it  is  our  duty  to  prescribe,  as  far  as  we  can,  the  course 
for  the  judges  to  pursue,  in  order  that  they  may  not  be  subjected  to  earnest  partisan 
appeals,  that  will  be  made  by  party  leaders  to  have  the  board  selected  from  one 
political  party.  We  must  recognize  the  fact  that  the  Circuit  Cotirt  judges  will  be 
appealed  to  most  earnestly  by  the  leaders  of  the  dominant  party  to  have  the  electoral 
board  appointed  from  one  party.  I  call  your  attention  to  the  fact  that  you  have  pre- 
scribed here  that,  as  to  the  judges  of  elections,  the  two  political  parties  shall  have 
representation;  but  when  you  come  to  the  electoral  board  you  make  no  such  require- 
ment. I  respectfully  submit  that  that  is  an  indication  to  the  judges  that  you  do  not 
want  them  appointed  in  that  way.  You  have  prescribed  that  as  to  the  judges  of  elec- 
tion the  two  leading  political  parties  shall  be  represented,  but  you  have  made  no  such 
provision  as  to  the  electoral  board,  which  is  the  real  appointing  power.  That  is  an 
intimation  to  the  circuit  judges  that  they  may  exercise  their  political  preferences  in 
the  appointment  of  members  of  the  electoral  board.  If  you  are  going  to  bring  the 
judges  into  politics,  I  respectfully  submit  that  you  ought  to  make  a  provision  that  will 
relieve  them,  as  far  as  possible,  from  the  temptation  of  yielding  to  party  prejudice. 
The  motion  of  the  gentleman  from  Franklin  is.  to  my  mind,  perfectly  proper,  and  it 
is  along  the  lines  that  we  ourselves  thought  proper  at  one  time.  It  will  relieve  the 
judges  as  far  as  possible  from  any  necessity  for,  and  from  any  opportunity  of,  showing 
party  preferences. 

None  of  us  can  deny  that  the  electoral  boards  ought  to  have  on  them  a  represen- 
tative of  both  parties.  If  we  recognize  that  fact,  why  not  say  it  in  the  Constitution, 
instead  of  drawing  a  distinction  between  the  electoral  board  and  the  officers  of  elec- 
tion? Yoti  require  this  representation  as  to  one  and  leave  it  out  of  the  other.  We 
should  mark  out,  the  path,  so  as  to  relieve  the  circuit  judges  from  the  temptation  of 
yielding  to  party  desires.  The  motion  is  a  fair  one.  an  honest  one,  and  it  is  along  the 
lines  that  we  ourselves  have  been  acting.  Yriihout  regard  to  party  lines,  we  should 
support  the  amendment  of  the  gentleman  from  Franklin. 

Mr.  Cameron:  I  wish  to  say  that  the  chief  inducement  operating  on  my  mind 
towards  participation  in  anything  relating  to  our  suffrage  system  was  .based  upon  the 
hope  that  such  results  be  obtained  as  would  enable  us  to  put  into  our  election  system 


3032 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA, 


such  laws  as  would  guarantee  us  against  the  further  continuance  and  spread  of  the 
corrupting  influences  that  have  sprung  up  in  our  midst,  as  a  result  of  having  in  our 
electorate  the  great  body  of  vice  and  ignorance  which  has  been  represented  by  the 
negro  race.  Such  was  the  keynote  of  the  cry  that  came  from  the  county  of  Nottoway, 
which,  spreading  throughout  the  State,  gave  rise  to  the  assent  to  the  call  of  a  Consti- 
tutional Convention.  Anything  done  by  us  which  would  not  lead  to  the  purification  of 
the  ballot  would  be,  to  my  mind,  an  abject  failure.  I  do  not  agree  at  all  with  the  stand- 
point of  the  gentleman  who  has  just  spoken.  I  do  not  believe  in  universal  suffrage. 
I  believe  that  negro  suffrage  has  been  a  curse,  a  curse  to  the  white  people  and  an 
imminent  threat  to  the  negro.  I  believe  that  the  Fifteenth  Amendment  was  the  crime 
of  this  age.  I  believe  that  the  greatest  evil  flowing  from  negro  suffrage  has  been  that 
it  has  polluted  the  sources  of  governmental  power,  that  the  poison  began  where  the 
evil  was  most  accentuated  and  has  spread  into  every  limb  of  our  body  politic  until,  if 
allowed  to  go  on,  it  would  have  made  a  mass  of  reeking  corruption  of  the  social  and 
political  order  of  this  State.  I  believe  that  if  the  work  we  are  now  engaged  on  will 
accomplish  what  its  advocates  have  claimed  for  it,  a  reformation  of  the  electorate  and 
the  leaving  of  a  minimum  of  dangerous  element  in  that  electorate,  it  is  our  bounden 
duty  as  citizens  and  as  Democrats  to  lay  down  here  the  foundation  rules  which,  so  far 
as  possible,  will  insure  in  the  future  a  removal  from  Virginia  of  the  suspicion  that  our 
people  are  wedded  to  those  practices  which  would  leave  a  stain  and  bring  disaster  upon 
any  people  who  tolerate  them, 

I  shall,  therefore,  support  the  amendment. 

The  gentleman  from  Augusta  says  that  such  provisions  are  not  carried  out.  I 
want  to  say  to  him  that  I  am  familiar  with  the  election  operations  in  New  York,  in 
Illinois,  in  Minnesota,  in  Indiana  and  in  Iowa,  and  I  know  that  in  those  States  both 
political  parties  are  represented  upon  the  election  and  registration  boards,  and  that 
they  are  fairly  represented.  I  know  that  it  would  be  regarded  as  an  outrage  by  the 
people  in  any  of  those  States  where  both  parties  have  a  voice  and  a  supervision  of  the 
processes  of  election,  if  such  representation  were  not  given.  If  our  work  has  been 
well  done — and  I  am  going  to  support  the  work  that  has  been  done  as  to  suffrage — if 
it  does  relieve  us  of  this  incubus  of  vice  and  ignorance,  what  earthly  reason  can  there 
be  why  we  should  not  throw  every  safeguard  possible  around  the  conduct  of  our  elec- 
tions? I  say  I  am  going  to  show  my  faith  in  the  work  of  this  Convention,  my  faith 
in  the  suffrage  clause  that  has  been  recommended  by  these  distinguished  gentlemen, 
and  my  faith  in  their  assertion  that  it  is  going  to  work  the  result  it  was  intended  to 
accomplish  by  voting  to  make  our  election  processes  as  clean  as  the  cleanest  and  as 
pure  as  constitutional  language  can  enforce. 

Mr.  Meredith:  Do  I  understand  that  the  gentleman  from  Franklin  withdraws  the 
amendment  he  first  offered,  and  now  moves  to  amend  by  inserting  in  line  5  the  words 
"  not  more  than  two  of  whom  shall  belong  to  the  same  political  party?" 

Mr.  R.  Walton  Moore:  So  far  as  I  am  concerned,  I  very  much  prefer  the  language 
of  the  amendment. just  offered.. 

The  vote  having  been  taken,  the  result  was  announced— ayes  38,  noes  32— as  fol- 
lows: 

Ayes— Messrs.  W.  A.  Anderson,  Ayers,  Barbour,  Blair,  Bristow,  Cameron,  Daniel, 
Davis,  Earman.  Epes,  Gillespie,  Glass,  B.  T.  Gordon,  James  W.  Gordon,  Green,  Gwyn, 
Hatton,  Kendall,  Lindsay,  Marshall,  Mcllwaine,  Meredith,  Moncure,  R.  Walton  Moore, 
O'Flaherty,  Pedigo,  Pettit,  Phillips,  Portlock,  Quarles,  Rives,  Thornton,  Waddill,  Walker, 
Wise,  Withers,  Wysor,  the  President— 38. 

Noes— Messrs.  George  K.  Anderson,  Thomas  H.  Barnes,  Boaz,  Bouldm,  Braxton, 
Brown   P.  W.  Campbell,  Carter,  Dunaway,  Fairfax,  Fletcher,  Garnett,  Gilmore,  R. 
Gordon,  Hamilton,  Hancock,  Hardy,  Hooker,  Ingram,  Keezell,  Lawson,  Lovell,  Miller, 
Parks,  Robertson,  Smith,  Stebbins,  Turnbull,  Vincent,  Willis,  Yancey— 32. 

The  amendment  was  agreed  to. 

Mr.  Portlock:    I  offer  the  following  amendment: 

Strike  out  in  lines  11,  12,  13,  and  14,  Section  11,  the  following: 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


3033 


Xo  person,  nor  the  deputy  of  any  person  holding  any  elective  office  of  profit  or 
trust  in  this  State,  or  in  any  county,  city,  or  town  thereof,  shall  he  appointed  as  a 
member  of  the  electoral  board  or  as  registrar  or  as  judge  of  election. 

Mr.  President  and  gentlemen  of  the  Convention.  I  know  how  difficult  it  is,  at  this 
stage  of  the  proceedings,  to  obtain  any  amendment  to  this  plan  now  under  considera- 
tion. But  certain  it  is  when  a  mistake  has  been  made  or  a  correction  is  necessary, 
that  mistake  should  be  remedied  and  that  correction  should  be  made. 

I  feel  that  it  is  of  the  utmost  importance  that  the  amendment  which  I  have  sent 
to  the  desk  should  be  adopted  by  this  Convention,  striking  out.  as  it  does,  a  provision 
whereby  the  elective  officers  and  their  deputies  are  not  allowed  to  officiate  on  an 
electoral  board  or  as  judges  or  clerks  of  election. 

I  make  this  motion  for  two  reasons.  The  first  is  that  it  amounts  to  an  unreason- 
able and  unwarranted  discredit  upon  the  officers  of  this  State.  And  secondly,  if  this 
provision  is  adopted  in  this  Constitution,  it  will  occur,  time  and  again,  that  in  a  number 
of  the  precincts  of  this  State  you  will  find  it  impossible,  especially  in  small  election 
precincts,  to  secure  the  services  of  officers  of  election  who  can  intelligently  conduct 
the  election. 

Now,  gentlemen.  I  am  not  of  that  grovelling  kind  who  believe  that  because  a  man 
is  intelligent  and  prosperous  he  must,  as  a  consequence,  be  decrie'd  and  discredited  as 
to  his  honesty  and  integrity.  This  sentiment,  this  debased  view  of  life,  is  unworthy 
of  gentlemen  who  are  themselves  honest  and  who  are  themselves  high  and  broad  in 
their  estimate  of  human  nature  and  human  conduct.  Xor  am  I  one  of  those  who  believe 
that  when  a  man  takes  an  oath  of  office  he  therefore  becomes  necessarily  sordid  and 
depraved  and  unworthy  of  belief  and  becomes  a  man  whose  actions  should  be  viewed 
with  suspicion. 

On  the  contrary.  Mr.  President.  I  believe  that  the  ver^*  fact  that  a  large  number 
of  men  who  take  the  oath  of  office  have  sworn  to  do  their  duty,  are  thereby  rendered  at 
once,  in  view  of  the  responsibility  which  they  feel  upon  them  in  the  discharge  of  their 
duty  under  their  oath  of  office,  more  honest,  if  possible,  by  reason  of  the  responsibilities 
placed  upon  them  and  by  virtue  of  that  solemn  oath  of  office  which  they  have  taken. 
Therefore.  I  can  see  no  reason  for  proscribing  the  officers  in  this  manner,  except  it  be 
to  disparage  them  for  no  other  reason  than  that  they  are  officers.  Surely  the  gentle- 
men of  this  Convention  are  not  willing  to  asstime  this  attitude  towards  the  office- 
holders of  this  State. 

I  think  that  this  is  unwarranted,  that  it  is  without  foundation,  that  it  is  without 
reason,  and  not  based  upon  fact.  I  believe  that  men  who  have  become  officers  and  who 
take  the  oath  of  office,  are  more  capable  from  the  standpoint  of  honesty  to  perform 
these  dtities  than  they  were  before.  The  men  who  were  selected  to  fill  these  offices 
in  this  State  are  selected  because  of  their  capability  to  perform  the  duties  of  those 
offices.  I  believe  that  the  men  who  are  selected  as  the  administrative  officers  of  coun- 
ties must  mark  up  to  a  certain  degree  of  intelligence,  and  they  are  accustomed  to  per- 
form such  clerical  duties  as  to  fit  them  to  act  as  election  officers. 

Now.  :Mr.  President.  I  ask  the  gentlemen  of  this  Convention  to  go  over  their 
respective  counties  and  recall  to  their  minds  certain  small  precincts  in  those  counties, 
where  it  is  extremely  difficult  to  obtain  a  sufficient  number  of  men  to  serve  as  judges 
and  clerks  of  election,  who  are  intelligent  enotigh  to  perform  the  duties  of  that  office, 
and  let  them  recall  how  necessary  it  often  becomes  to  enlist  the  ser^'ices  at  the  polls 
of  the  officers  or  their  deputies.  That  condition  of  affairs  does  not,  fortunately,  exist 
in  a  large  majority  of  the  precincts;  but  when  you  have  a  precinct  in  which  there  is 
but  a  small  number  of  white  people  you  are  to  be  confronted  with  that  condition  of 
affairs,  that  is  to  say.  it  sometimes  becomes  exceedingly  difficult  to  secure  at  such  pre- 
cincts the  requisite  number  of  available  election  officers.  And  this  would  often  result 
in  proper  election  returns.  I  understand  that  this  provision  was  incorporated  here 
more  with  reference  to  the  cities,  it  being  asserted  by  the  supporters  of  this  provision 
191 — Const.  Deb. 


3034 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


that  the  police  officers  in  cities  usually  exerted  considerable  influence  and  are  often 
employed  as  officers  of  election;  and  that  they  did  not,  as  a  rule,  measure  up  to  the 
standard  of  the  officers  who  would  be  disposed  to  conduct  fair  and  impartial  elections 
where  they  were  employed  as  officers  of  election.  I  say  that  while  this  may  apply  to 
certain  classes  of  people  in  the  cities,  I  believe  it  cannot  be  considered  as  characteriz- 
ing the  conduct  of  officers  generally.  I  know  that  when  you  come  down  to  the  prac- 
tical question  involved  in  this  provision,  as  it  relates  to  the  counties  and  to  the  small 
country  precincts,  you  will  find  it  to  be  often  the  case  that  you  will  not  have  officers 
sufficiently  intelligent  to  conduct  an  election  if  you  exclude  those  persons  proclaimed 
against  in  this  provision. 

I  hope,  Mr.  President,  that  the  Convention  will  use  its  authority  of  eliminating  this 
provision  in  this  plan.  I  hope  the  gentleman  from  Lynchburg,  who  is  now  assuming 
the  fatherhood  of  this  suffrage  plan,  may  see  proper  to  agree  to  my  suggestion.  I  want 
to  say  that  I  am  now  supporting  this  plan  although  against  my  most  honest  and  serious 
convictions  as  to  the  understanding  clause  contained  therein.  But  neither  this  nor  any  other 
plan  should  be  finally  adopted  until  all  mistakes  shall  have  been  corrected  and  the 
plan  itself  perfected.  It  is  therefore  for  the  purpose  of  perfecting  this  plan  that  I 
oifer  this  amendment.  This  plan,  this  old  ship,  has  been  ignominiously  abandoned  by 
its  builders,  its  officers,  and  its  crew,  and  the  old  wreck,  while  buffeted  by  the  breakers, 
and  pounding,  humping,  and  grinding  upon  the  beach,  was  rescued  from  its  deserted 
and  foundering  conditions  by  a  small  band  of  life-savers  who  had  always  considered  it  an 
unsafe  and  dangerous  craft,  and  who  took  no  part  in  its  construction.  We  have  placed 
the  gentlemen  from  Lynchburg  again  at  the  helm  and  this  captain  should  assist  us 
in  repairing  the  damages.  This  plan  should  be  so  perfected  as  that  the  smallest  pre- 
cincts as  well  as  the  largest  should  have  proper  and  efficient  election  officers. 

Mr.  Glass:  Mr.  President,  I  very  much  regret  that  I  cannot  yield  to  the  sug- 
gestion of  the  gentleman  from  Norfolk  county.  This  provision  was  insisted  upon  not 
by  members  of  the  cities  alone,  but  by  Judge  Epes  and  others.  Some  of  the  members 
who  wanted  to  put  it  in  wanted  to  make  it  even  broader  than  it  is  now.  I  hope  the 
amendment  of  the  gentlemen  from  Norfolk  county  will  be  voted  down. 

Mr.  Glass:  Mr.  President,  I  have  an  amendment  suggested  by  the  gentleman 
from  Culpeper  which  I  think  ought  to  be  embodied  in  Section  11.  After  the  word 
"party"-  in  line  5,  Section  11,  add  the  v/ords: 

Of  those  first  appointed,  one  shall  be  appointed  for  the  term  of  one  year,  one  for 
the  term  of  two  years,  and  the  other  for  the  term  of  three  years;  and  thereafter  their 
successors  shall  be  appointed  for  the  full  term  of  three  years. 

There  is  no  provision  in  this  section  for  the  terms  of  office  of  the  members  of  the 
electoral  board. 

I  think  this  amendm.ent  should  be  adopted. 
The  amendment  was  agreed  to. 

Mr.  Barbour:  Mr.  President,  at  the  suggestion  of  some  members  of  the  Convention 
who  voted  in  the  negative,  I  now  move  to  reconsider  the  vote  by  which  the  amend- 
m-ent  offered  by  the  gentleman  from  Franklin  was  adopted. 

Mr.  R.  L.  Gordon:  Mr.  President,  I  do  not  want  to  detain  this  body  a  moment. 
I  think,  however,  that  I  may  appeal  to  the  gentlemen  of  this  body,  not  very  gracefully, 
as  I  v'as  one  of  those  irreconcilable  gentlemen  not  satisfied  with  the  work  of  the  con- 
ference, and  tried  my  best  to  alter  it  if  I  could,  but  I  think  I  may  appeal  to  some  of  the 
gentlemen  here  to  stand  by  the  work  of  the  Democratic  conference.  We  have  deliber- 
ately reversed  the  action  of  the  conference  on  a  very  important  matter  and  in  my  hum- 
ble judgment  we  have  erred  in  so  reversing  it. 

We  have,  in  the  first  instance,  placed  the  appointment  of  this  board  in  the  bands 
of  the  judges.  Why  should  we  trammel  the  judges?  When  you  have  given  to  the  judge 
the  right  to  select  this  board,  why  not  give  him  the  right  to  put  upon  it  the  very  best 


4 


DEBATES  OE  THE  COXSTIIUIIOXAL  COXVEXIIOX  OF  VIEGIXIA. 


3035 


men  he  can  get,  regardless  of  their  political  associations?  I  believe  that  the  Judges 
of  Virginia,  in  the  appointment  of  the  electoral  hoards,  are  going  to  act  fairly  and 
justly.  We  must  remember  the  fact,  that  in  some  sections  of  this  State  there  are  a 
great  many  men  belonging  to  the  Republican  party  that  are  good,  honest,  industrious 
citizens;  but  there  are  other  sections  of  this  State  where  the  Republican  party  is  made 
up  of  omce-seekers. 

There  are  men  in  some  sections  of  this  State  who  are  Republicans  for  revenue 
only.  They  have  united  vrith  the  inferior  race  for  the  purpose  of  getting  office,  and 
they  use  the  votes  of  that  race  to  defeat  the  best  elements  in  their  county,  to  defeat 
the  virtue  and  intelligence  of  the  county.  I  say  one  of  those  men,  although  he  may 
be  a  Republican,  is  unworthy  to  sit  upon  this  board. 

I,  Mr.  President,  am  one  who  is  absolutely  willing  to  trust  the  judiciary  of  this 
State.  I  know  that  the  partisanship  that  these  gentlemen  are  now  complaining  of 
never  did  attach  to  judges  of  election  when  they  were  appointed  by  the  courts.  In  the 
old  days,  when  the  courts  appointed  these  officers,  we  never  heard  this  cry  of  partisanry 
and  bad  action.  TTe  are  putting  this  appointment  back  now  into  the  hands  of  the  judges 
of  the  Circuit  Courts  of  the  State.  I  want  to  know  whether  the  E,epublicans  in  this 
body,  and  the  Bemocrat-s  in  this  body,  are  not  willing  to  trust  the  circuit  judges  of 
Virginia  to  appoint  the  best  men  to  these  boards?  In  my  humble  judgment  they  will 
make  such  selection.  Then  why  trammel  them?  "VThy  say  to  the  judge  that  he  must 
appoint  an  unworthy  Republican,  or  an  unworthy  Populist,  or  a  Prohibitionist  or 
what  not  on  that  board?  VTiy  not  leave  it  to  the  court  to  appoint  the  very  best  man 
in  the  community  to  exercise  these  important  functions?  It  seems  to  me  that,  as  we 
have  selected  the  courts  to  do  this  work  that  we  ought  to  trust  the  courts  with  the 
work.  If  they  are  unworthy  of  confidence  we  ought  to  put  responsibility  elsewhere. 
I  believe  that  it  will  greatly  embarrass  the  judges  in  this  State  to  find  a  suitable 
Republican,  in  some  counties,  to  go  upon  that  board;  and  yet  you  desire  to  practically 
compel  him  to  select  one  member  of  that  particular  party. 

Mr.  Blair:  Bo  I  understand  the  gentleman  to  say  that  there  is  a  single  county  In 
Virginia  where  a  Circuit  Court  Judge  could  not  find  one  Republican  who  would  be 
worthy  to  go  upon  this  board? 

:\Ir.  R.  L.  Gordon:  That  is  exactly  what  I  say.  I  want  to  tell  the  gentleman  that 
there  are  some  counties  in  this  State  where  there  is  not  a  white  Republican  who  is 
not  an  office-seeker.  He  knows  that  he  is  flying  in  the  face  of  the  best  sentiment  in  his 
county,  and  the  face  of  the  virtue  and  intelligence  of  his  county  when  he  votes  for  the 
negroes  of  that  county  to  dominate  the  white  man;  and  he  does  it  from  selfish  motives, 
not  from  patriotic  motives.  Some  of  those  men  are  unworthy  to  be  placed  on  these 
boards.  TVe  ought  not  to  say  to  our  circuit  judges  that  they  shall  place  these  men  upon 
electoral  boards  vested  with  these  gi'eat  powers,  when  only  the  best  and  most  con- 
servative men  in  the  community  should  be  intrusted  with  them.  I  hope  that  we  will 
reconsider  this  vote.  I  hope  that  we  will  return  to  the  wisdom  of  the  conference, 
because  I  think  the  conference  decided  it  wisely.  I  hope  this  motion  to  reconsider 
will  prevail  and  that  this  Convention  will  decide  not  to  trammel  the  hands  of  the  judi- 
ciary in  the  selection  of  the  members  of  the  Electoral  Boards. 

Mr.  Meredith:  I  hope  the  Convention  will  stand  by  its  determination  of  a  few 
moments  ago.  VTe  certainly  voted  for  what,  upon  the  face  of  it,  seems  to  be  right  and 
fair.  No  man  can  deny  that  the  proposition  is  a  fair  one.  No  man  can  deny  that  an 
Electoral  Board  ought  to  be  composed  of  men  of  both  political  parties.  The  principle 
is  certainly  right.  For  what  reason  should  we  change  it?  Ought  we  to  vote  against 
a  thing  that  is.  upon  its  face,  fair,  square  and  honest? 

Mr.  E..  L.  Gordon:  Is  it  not  a  wise  and  proper  thing  to  give  to  different  localities 
in  this  State  an  opportunity  to  get  the  best  men  in  those  localities.  TThile,  in  the  city 
of  Richmond,  which  I  fear  bounds  my  friend's  vision,  you  may  be  able  to  get  first-class 
men  on  both  sides,  there  are  some  places  in  the  State  where  you  could  not  possibly 
get  them. 


3036 


DEBATES  OF  THE  CONSTITUTIOA^AL  CONVENTION  OF  VIRGINIA. 


Mr.  Meredith:  Mr.  President,  I  do  not  know  whether  my  vision  is  limited  by  the 
city  of  Richmond  or  not.  I  shall  not  retort,  that  the  vision  of  the  gentleman  who 
preceded  me  is  limited  to  his  own  county.  I  do  not  believe  that  he  is  prompted  by 
any  such  motive. 

But  I  say  that  we  must  recognize  that  the  principle  is  a  fair  and  just  one.  The 
proposition  I  lay  down,  is  that  the  man  who  undertakes  to  overturn  a  proposition  that 
he,  himself,  recognizes  as  fair  and  square  on  its  face,  ought  to  give  some  good  reason 
for  it.  The  argument  is  that  we  should  not  hamper  the  judges.  We  are  not  trying 
to  hamper  the  judges.  We  are  trying  to  keep  the  judges  out  of  temptation.  We  must 
recognize  that  they  are  all  men  and  that  they,  like  all  other  men,  are  subject  to  tempta- 
tion, and  to  being  swayed  by  party  prejudice  and  party  appeal;  and  just  as  certainly 
as  you  allow  them  to  be  subjected  to  it,  some  one  or  more  of  them  are  going  to  yield 
to  it,  I  am  simply  asking  that  you  put  here  a  principle  which  you  must  recognize  as 
fair,  so  that  the  judges  will  be  guided  by  a  just  rule  in  making  these  appointments. 

Mr.  Keezell:  Is  it  not  true  that  the  original  proposition,  as  it  came  to  the  confer- 
ence, was  for  the  judges  themselves  to  appoint  the  election  officers;  and  is  it  not  true 
because  of  the  difficulty  of  a  judge  appointing  in  a  county  like  mine,  for  instance,  100 
or  more  election  officers,  it  was  thought  necessary  to  delegate  that  power  to  somebody 
else?  And  would  not  the  judge,  if  he  had  the  appointing  power,  belong  to  only  one 
political  party  and  therefore  be  subject  to  party  prejudice? 

Mr.  Meredith:  I  have  never  denied  that  proposition.  I  have  never  denied  the 
fact  that  a  man  is  but  a  single  man,  and  that  he  can  belong  to  only  one  party. 

Mr.  Keezell:    You  are  simply  putting  the  electoral  board  in  the  place  of  the  judge. 

Mr.  Meredith:  If  he  belongs  to  one  party,  and  is  liable  to  be  swayed  by  party 
prejudice,  then  it  is  your  duty  to  protect  him.  But  you  are  putting  before  him  this 
temptation,  to  which  he  may  yield.  The  very  fact  that  he  belongs  to  one  party  is  the 
reason  why  we  should  put  him  above  temptation  and  party  prejudice.  Now,  Mr.  Presi- 
dent, this  matter  has  been  sufficiently  discussed.  I  simply  ask  you  to  stand  by  the 
decision  which  you  made  a  few  minutes  ago,  because  it  is  a  fair  and  honest  principle, 
and,  secondly,  because  no  good  reason  has  been  given  why  you  should  change  it,  and 
third,  I  appeal  to  you,  in  the  name  of  the  judges,  not  to  subject  them  any  further  than 
is  absolutely  necessary  to  this  matter  of  party  dictation  and  party  appeal. 

Mr.  Keezell:  Mr.  President,  I  only  desire  to  detain  this  Convention  for  one 
moment.  I  want  to  call  the  attention  of  the  Convention  to  the  fact  that  as  this  pro- 
position came  into  the  conference  it  was  for  the  judges  themselves  to  do  as  they  had 
done  before  we  had  the  present  system — that  is,  appoint  the  registrars  and  judges  of 
election. 

Mr.  Meredith:  That  was  the  way  it  first  came  here;  it  was  afterwards  changed, 
leaving  the  Circuit  judges  only  the  power  to  appoint  the  electoral  boards.  Then  It 
was  proposed  that  the  electoral  boards  should  be  composed  of  not  more  than  two  of 
the  same  political  party. 

Mr.  Keezell:    That  was  not  adopted  in  conference. 

Mr.  Meredith:    It  was  taken  by  a  very  small  vote. 

Mr.  Keezell:  Mr.  President,  the  original  proposition  was  for  the  Judges  themselves 
to  appoint  the  registrars  and  judges  of  election  in  the  various  precincts  in  the  county. 
I  would  be  perfectly  willing  to  have  that  system,  except  for  the  fact  that  it  would  be 
impossible  for  a  Circuit  Court  judge  to  be  familiar  enough  with  men  personally  in 
the  various  counties  to  select  proper  persons  to  be  appointed  election  officers. 

Therefore  it  would  be  necessary  for  him  to  get  his  information  from  some  outside 
source.  The  question  was,  whether  it  is  the  better  plan  to  allow  him  to  pick  out  three 
men  that  he  knows  in  the  county,  in  whom  he  has  the  most  complete  confidence,  to 
do  this  work  for  him,  rather  than  depend  upon  the  chairman  of  the  various  political 
parties  or  the  partisans  who  came  before  him  clamoring  for  their  friends  to  be  ap- 
pointed as  judges  and  registrars. 


DEBATES  OE  TEIE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA.  3037 


Mr.  Keezell:  I  think  it  is,  for  the  reason  I  am  going  to  state.  1  think  the  power 
that  has  the  appointment  of  these  judges  ought  to  be  responsible  for  their  appointment. 
When  you  undertake  to  divide  that  authority,  by  requiring  that  one  of  them  shall  be  a 
Democrat  and  two  Republicans,  or  vice  versa,  you  have  divided  the  responsibility  that 
rests  upon  that  board.  You  are  going  to  have  great  trouble,  in  m^y  opinion,  in  getting 
proper  election  officers  under  that  provision.  So  far  as  my  section  is  concerned,  if  you 
vrere  to  adopt  that  plan,  I,  as  chairman  of  the  Democratic  party  of  mj  county,  would 
feel  that  it  Vvas  my  duty  to  go  before  the  judge  and  urge  upon  him  the  appointment  of 
two  partisan  Democrats,  representing  the  Democratic  party  upon  that  board. 

Mr.  ?>Ieredith:  Would  you  be  satisfied  to  have  the  judge  of  Rockingham  county  ap- 
point an  electoral  board  of  three  Republicans? 

Mr.  Keezell:  I  say  that  I  should  feel  it  was  incumbent  upon  me  to  go  before  that 
judge  and  ask  him  to  appoint  two  partisan  Democrats  to  represent  the  Democratic 
party  on  that  board,  feeling  sure  that  the  Republican  authorities  would  demand  such 
a  Republican  to  represent  them,  and  if  I  did  not  do  that,  I  v\-ould  feel  that  I  was 
neglecting  the  interests  of  my  party.  But  if  he  were  to  make  the  appointments  himself, 
according  to  his  own  judgment,  I  v\-ould  feel  perfectly  easy  about  the  matter,  because 
I  believe  that  he  would  appoint  three  men  who  could  be  trusted  to  do  what  was  right 
vrithout  reference  to  their  partisan  feeling.  I  have  taken  this  position,  and  I  want 
this  Convention  to  understand  it.  So  far  as  the  electoral  board  in  my  county  is  con- 
cerned, I  have  had  elected  three  men  of  the  highest  character  that  can  be  found  in 
my  county,  Democrats,  it  is  true,  but  men  who  are  acceptable  to  everybody.  Having 
done  that,  as  chairman  of  the  Democratic  partj^  in  my  county,  I  have  refrained  from 
making  recommendations  as  to  vs-hom  they  should  appoint  as  judges  of  election  and 
registrars  in  the  various  precincts.  I  have  left  the  matter  in  their  hands,  believing 
that  they  would  do  what  was  right,  proper,  and  fair  between  the  two  political  parties, 
and  in  the  interest  of  a  perfectly  fair  administration  of  the  election  law.  The  very 
moment  that  you  undertake  to  make  bi-partisan  boards  you  are  going  to  find  out  that 
the  representatives  of  the  two  political  parties  will  come  and  clamor  for  their  partisans 
to  be  put  in  as  judges  and  registrars.  Instead  of  a  board  of  judges  made  up  of 
the  highest  class  of  men  that  could  be  found,  who  vrill  be  fair  and  honest,  you  will 
find  your  election  officers  made  up  of  the  most  violent  partisans  that  you  can  get  at 
the  various  precincts.  That  is  the  reason  why  I  object  to  this  amendment.  I  believe 
this  Convention  should  reconsider  this  vote  and  give  the  judge  the  right  to  appoint 
these  officers  without  restriction.  If  he  wants  to  appoint  three  Republicans  let  him 
appoint  them,  and  if  he  oppoints  men  of  as  high  character  as  I  have  undertaken  to 
appoint  in  my  county,  and  men  who  would  be  as  fair  in  the  appointment  of  election 
officers,  and  in  all  the  other  duties  as  these  men  have  been  in  my  county,  I  would  be 
perfectly  satisfied  with  them.    This  is  my  answer  to  your  question. 

Mr.  Turnbull:  Mr.  President,  I  think  the  Convention  has  made  a  mistake  in  chang- 
ing this  article  in  reference  to  this  matter.  My  reason  for  voting  for  the  Circuit  Court 
judges  to  have  the  power  of  appointment  of  the  electoral  boards  was  that  they  would 
be  perfectly  independent  and  have  the  right  to  appoint  such  men  as  they  thought 
proper.  This  action  forces  the  selection  of  a  bi-partisan  board.  I  think  it  is  very 
important  to  leave  this  matter  untrammelled  so  that  the  judges  may  be  left  to  select 
the  best  men  in  the  county  for  the  purpose.  If  j'ou  adopt  this  amendment  you  will 
have  a  constant  source  of  annoyance,  and  3'ou  will  have  a  constant  wrangle  in  every 
county  with  reference  to  the  appointment  of  judges  of  election  and  registrars.  I  do 
hope  that  this  Convention  will  reconsider  its  action. 

The  question  having  been  taken,  the  result  was  announced — ayes  39,  noes  32. 

The  motion  to  reconsider  was  agreed"  to. 

The  President:  The  question  recurs  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Franklin. 

The  question  having  been  taken,  the  result  was  announced — ayes  30,  noes  38. 
The  amendment  was  rejected. 


3038 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


Mr.  Stuart:  Mr.  President  and  gentlemen  of  the  Convention,  I  wish  to  offer  an 
amendment  covering  a  matter  which  I  think  was  unintentionally  omitted  in  this  report, 
the  purpose  of  which  is  to  carry  out  the  spirit  of  the  report  of  the  committee.  I  move 
to  amend,  beginning  in  line  8  with  the  first  words  in  that  line,  in  Section  11,  and.  to 
strike  out  all  the  words  up  to  the  word  "  representation,"  and  insert  in  lieu  thereof 
the  words  "  and  in  their  selection,  representation,  as  far  as  possible,  shall  be  given  to 
each  of  the  two  political  parties,"  etc. 

To  make  the  matter  clearer,  I  will  move  to  amend  by  adding  the  words,  "  and 
clerks."  I  was  one  of  those  who  voted  against  the  amendment  of  the  gentleman  from 
Franklin  because  I  thought  that  having  vested  this  discretion  in  our  Circuit  Court 
judges,  we  could  safely  depend  on  them  to  execute  that  discretion  in  the  same  manner 
that  they  execute  their  other  judicial  functions.  I  thought  that,  having  lodged  that 
discretion  in  the  very  highest  and  most  incorruptible  source,  to  prescribe  that  there 
should  be  limitation  in  the  exercise  of  that  discretion,  or  something  directory  in  the 
way  of  their  making  appointments,  would  have  been,  to  my  mind,  a  reflection  upon 
their  integrity.  Having  once  lodged  this  discretion  v/here  it  will  be  safely  and  honestly 
administered,  I  think  the  less  directions  accompanying  it  the  better.  The  Circuit 
judges  now  stand  fully  empowered  to  appoint  a  Republican  member  of  the  electoral 
board  if  they  choose  to  do  so,  but  they  are  not  obliged  to  do  so.  They  are  not  forced 
to  inquire  into  the  politics  of  the  men  they  appoint.  The  presumption  would  be  that 
they  v/ould  select  good  citizens  and  men  who  would  appoint  good  registrars,  and  good 
clerks.  But  now  we  come  to  a  different  branch  of  the  subject.  The  power  having 
once  been  exercised  by  the  court  by  the  appointment  of  three  good  men,  be  they  Demo- 
crats or  Republican,  as  members  of  the  electoral  board,  the  discretion  is  left  in  the 
electoral  board  as  to  who  they  shall  appoint  judges  of  elections  and  clerks.  The  judges 
and  clerks  are  to  administer  this  law.  It  is  incumbent  upon  them  to  act  fairly  and 
honestly.  Inasmuch  as  we  say  that  the  minority  is  entitled  to  representation  among 
the  judges,  it  can  be  said  with  equal  force  that  they  are  entitled  to  representation 
among  the  clerks. 

I  want  to  point  out  what  good  will  be  accomplished  by  it.  We  will  say  that  a 
Republican  comes  to  vote.  Under  the  law  he  has  a  right  to  ask  any  one  of  the  judges 
or  any  one  of  the  officers  to  mark  his  ballot.  Suppose  there  are  three  judges,  one  of 
whom  is  a  Republican,  and  two  clerks,  both  of  whom  are  Democrats.  The  Republican 
asks  the  Republican  judge  to  mark  his  ballot,  and  then  there  is  no  representative  of 
the  Republican  party  left  at  the  ballot-box.  It  does  seem  to  me  that,  in  all  fairness, 
if  we  mean  what  we  say  in  providing  that  the  judges  of  election  shall  represent  both 
parties,  we  ought  to  provide  that  the  clerks  should  represent  both  parties.  I  am  in 
favor  of  throwing  every  safeguard  around  the  ballot-box.  In  order  to  be  consistent, 
and  to  reply  to  the  inquiry  of  the  gentleman  from  Pulaski,  I  want  to  say  that  I  think 
these  precautions  are  absolutely  unnecessary  in  the  case  of  the  Circuit  judges. 

Mr.  Braxton:  I  hope  the  amendment  will  not  be  adopted.  If  I  am  in  order  I 
would  move  as  an  amendment  to  the  amendment  that  the  words  beginning  in  line  8, 
and  ending  with  the  word  "vote,"  in  line  11,  be  stricken  out. 

In  the  first  place,  that  would  make  it  conform  mth  the  provision  in  regard  to  the 
appointment  of  the  electoral  boards.  In  the  second  place,  it  would  eliminate  the  ques- 
tion of  politics  as  to  the  matter  of  eligibility  to  office  and  take  it  out  of  the  Constitution. 
It  seems  to  me  we  have  confused  questions  of  legal  right  with  mere  questions  of 
propriety.  It  does  not  amount  to  a  row  of  pins  for  us  to  put  all  these  things  in  this 
Constitution.  Any  electoral  board  or  any  other  body  that  appoints  officers  and  does 
not,  of  its-  own  motion,  recognize  the  propriety  of  making  their  oppointees  non-partisan, 
or  of  giving  due  representation  to  the  various  political  parties,  cannot  possibly  be 
forced  to  adopt  them.  The  so-called  Republican  they  will  put  on  the  board  will  prac- 
tically be  no  Republican  at  all.  You  cannot  force  a  question  of  morality  or  propriety 
on  electoral  boards  or  anybody  else  by  statutes  or  constitutional  provisions;  and  you 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3039 

ought  not  to  attempt  to  do  it  in  this  way.  While  it  is  not  so  intended,  the  effect  of  it 
is  a  mere  Pharisaical  pretence  that  you  are  going  to  be  fair  when  you  know,  or  you 
ought  to  know,  that  you  cannot  force  it  on  anybody.  The  question  as  to  the  represen- 
tation that  ought  to  be  given  to  these  various  parties  is  a  matter  which,  after  all,  must 
of  necessity  be  left  to  the  conscience  of  the  appointing  power;  and  if  that  conscience 
does  not  suggest  that  representation  should  be  given  to  both  parties,  then  no  statute 
can  force  it  upon  them.  I  hope  that  all  reference  to  the  political  status  of  men,  for 
holding  this  office,  will  be  stricken  out. 

Mr.  Stuart:  Do  you  want  to  make  the  provisions  of  our  new  election  law  more 
lax  than  those  now  in  existence? 

Mr.  Braxton:  I  think  those  in  existence  are  perfect  dead  letters  and  always  will 
be.  If  thes,e  laws  are  to  be  as  bad  as  they  are  now  it  ought  to  be  put  in  the  Constitu- 
tion. I  think  you  might  as  well  say  in  the  Constitution  that  a  member  of  an  electoral 
board  should  not,  in  making  his  appointment,  be  influenced  by  any  improper  motive. 
Of  course,  he  ought  not  to  be.  But  what  good  is  it  to  put  it  in  the  Constitution.  When 
you  say  that  he  is  to  appoint  a  Republican,  he  is  the  judge  of  the  Republican  who  is 
to  be  put  in.  Does  he  ever  put  in  any  Republican  that  is  satisfactory  to  the  Republican 
party?  He  puts,  in  a  man  whom  the  Republicans  will  say  is  either  an  independent  or 
more  of  a  Democrat  than  a  Republican. 

Mr.  Stuart:  Do  I  understand  that  you  want  to  strike  out  the  provision  which 
requires  that  the  judges  shall  represent  two 'political  parties? 

Mr.  Braxton:    Exactly  so. 

Mr.  Stuart:    Then  the  provision  that  a  voter  may  ask  any  one  of  the  judges  to 
mark  his  ballot  would  be  a  dead  letter  so  far  as  the  minority  is  concerned. 
Mr.  Braxton:    I  do  not  know  that. 

Mr.  Wysor:  Mr.  President,  I  am  not  going  to  make  a  speech.  I  want  it  distinctly 
understood  that  I  am  in  favor  of  the  resolution  offered  by  the  gentleman  from  Russell. 
I  only  interrupted  him  to  show  his  inconsistency.  He  voted  against  putting  Repub- 
licans on  this  electoral  board,  but  he  is  willing  to  have  Republicans  appointed  as 
judges  of  election. 

I  disagree  altogether  with  the  gentleman  from  Augusta.  He  seemed  to  intimate, 
and  I  agree  with  him,  that  you  ought  not  to  put  politics  info  the  Constitution.  But 
they  are  in  the  Constitution.  We  have  said  that  we  are  willing  to  put  Republicans  on 
the  electoral  board.  That  is  putting  politics  into  the  Constitution.  We  have  passed 
that  once;  let  us  pass  it  again.  I  hope  the  Convention  will  pass  the  resolution  of  the 
gentleman  from  Russell. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Russell. 

The  question  being  taken,  the  result  v/as  announced — ayes  18,  noes  51. 

The  amendment  was  rejected 

The  President:  The  question  now  recurs  on  the  amendment  of  the  gentleman  from 
Augusta. 

The  amendment  was  rejected. 

Sections  11,  12,  13  and  14  were  adopted. 

The  President:    The  Secretary  v/ill  read  Section  15. 

15.  No  person  shall  vote  at  any  legalized  primary  election  for  the  nomination  of 
any  candidate  for  public  office  unless  he  is  at  the  time  a  registered  voter  and  qualified 
to  vote  at  the  next  succeeding  election. 

Mr.  Braxton:  Mr.  President,  I  move  to  strike  out  Section  15  for  reasons  which  I 
have  already  given.  I  do  not  think  we  ought  to  undertake  to  regulate  in  a  Constitu- 
tion the  affairs  of  a  political  party. 

The  amendment  was  rejected. 

Section  15  was  adopted. 

The  President:    The  Secretary  will  read  Section  16. 


DEBATES  OF  THE  CONSTITUTIOJsTAL  CONVENTION  OF  VIRGINIA. 


16.  The  General  Assembly  shall  enact  such  laws  as  are  necessary  and  proper  for  the 
purpose  of  securing  the  regularity  and  purity  of  general  and  primary  elections  and  pre- 
venting and  punishing  any  corrupt  practices  in  connection  therewith;  and  shall  have 
power,  m  addition  to  other  penalities  and  punishments  now  or  hereafter  prescribed  by 
law  for  such  offences,  to  provide  that  persons  convicted  of  them  shall  lose  the  riarht  to 
vote  and  hold  office. 

Mr.  James  W.  Gordon:  I  desire  to  offer  an  amendment.  It  is  an  amendment 
which  I  tried  to  have  adopted  in  conference,  and  I  intend  to  offer  it  now  in  convention 
for  what  it  is  worth.  At  the  end  of  Section  16  add  this  language:  ''And  shall  also 
have  power  to  provide  that  no  person  shall  be  excused  from  testifying  in  prosecutions 
for  the  violation  of  any  election  law." 

Under  one  of  the  sections  of  our  Bill  of  Rights  the  Legislature  would  not  have 
the  power,  unless  we  confer  it  upon  them,  to  pass  such  a  law  as  this  to  stop  election 
frauds  in  this  State.  Gentlemen  have  told  us  of  the  grossest  kinds  of  frauds  committed 
not  only  in  the  black  counties  but  in  the  white  counties,  and  yet  we  have  stood  here  and 
consistently  voted  down  provisions  which  were  intended  to  correct  those  evils.  I  say 
that  if  the  Constitutional  Convention  will  not  correct  those  frauds  we  should  place  it 
in  the  power  of  the  General  Assembly  to  do  so. 

Mr.  Turnbull:    I  move  that  the  Chair  be  vacated  until  4  o'clock. 

The  motion  was  agreed  to,  and  the  Chair  was  vacated  until  4  o'clock. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess. 

The  President:  The  pending  question  is  on  the  amendment  offered  by  the  gentle- 
man from  Richmond  city  (Mr.  Gordon). 

Mr.  James  W.  Gordon:  Mr.  President,  for  the  benefit  of  the  minority  members  on 
the  floor  I  desire  to  state  that  this  amendment  only  gives  to  the  General  Assembly 
the  authority  to  provide  that,  in  prosecutions  for  violations  of  any  election  law,  no 
pers.on  shall  be  excused  from  testifying.  In  other  words,  it  allows  the  General  As- 
sembly to  say  that,  where  a  man  is  charged  with  buying  votes,  the  person  who  sold 
them  may  be  compelled  to  testify  or  vice  versa,  so  as  to  have  one  of  the  parties  to  the 
bargain  before  the  court  in  the  capacity  of  a  witness,  qualified  to  testify,  and  who  can 
be  compelled  to  testify  to  the  bargain  with  the  other  man. 

I  believe  this  is  the  only  way  in  which  we  shall  ever  reach  this  evil  and  break  up 
the  bribery  and  corruption  that  has  been  going  on  in  the  politics  of  this  State. 

The  amendment  was  rejected. 

Section  16  was  adopted. 

Mr.  Braxton:  Mr.  President,  with  the  approbation  of  the  gentleman  from  Lynch- 
burg, I  desire  to  offer  an  independent  section  at  this  point,  which  I  hope  will  be  more 
lucky  than  some  of  the  other  amendments  I  have  offered  in  this  connection.  I  under- 
stand that  the  gentleman  from  Lynchburg  not  only  does  not  object  to  it,  but  approves 
of  it.    It  is  in  this  language: 

The  General  Assembly  may  from  time  to  time  enact  laws  providing  for  the  use, 
throughout  the  State  at  large,  or  in  any  one  or  more  counties,  cities  or  towns,  in  any 
election,  of  machines  for  receiving,  recording  and  counting  the  ballots,  cast  thereat; 
provided,  that  the  secrecy  of  the  ballot  be  not  thereby  impaired,  which  said  laws  may 
be  amended  or  repealed  at  the  pleasure  of  the  General  Assembly. 

A  good  many  of  the  members  have  thought  that  the  Legislature  already  has  the 
power  to  do  this,  but  some  think  it  has.  not  the  power.  This  is  intended  to  put  beyond 
question  the  right  of  the  Legislature  to  adopt  the  modern  method  of  receiving  and 
counting  votes.  It  is  a  method  that  has  already  been  adopted  in  a  large  number  of  the 
most  progressive  States  of  the  Union — in  Massachusetts,  Connecticut,  Ohio,  Indiana, 
Michigan,  Minnesota  and  others.    This  section  does  nothing  more  than  confer  a  power 


DEBATES  OF  THE  CONSTITUTIO^taL  CONVENTIOIT  OF  VIRGINIA. 


3041 


upon  the  Legislature,  which  it  probably  already  has.  I  hope  it  may  be  the  pleasure  of 
the  Convention  to  adopt  this  section. 

The  independent  section  was  adopted. 

The  President:    The  Secretary  will  read  Section  17. 

Mr.  Parks:  I  desire  to  offer -an  amendment  to  this  section.  Beginning  on  page 
10,  line  24,  there  occurs  this  language: 

And  a  reasonable  time  before  such  election,  the  clerk  shall  forward  to  the  judges 
of  election  of  each  precinct  of  the  county  or  city  a  like  certified  copy  of  the  list  of 
those  in  the  magisterial  district  or  ward  in  which  such  precinct  is  located  who'  have 
paid  the  capitation  tax  for  the  previous  year,  which  shall  be  deemed  conclusive  evidence 
of  that  fact  for  the  purpose  of  voting. 

I  desire  to  offer  in  lieu  of  that  the  following: 

After  the  word  "and"  strike  out  "a  reasonable  time  before  such  election";  between 
the  words  "the"  and  "clerk"  insert  the  word  "said"  and  after  the  word  "shall"  insert 
the  words  "deliver  or  cause  to  be  delivered  with  the  poll  books";  and  after  the  word 
"to"  insert  the  words  "  one  of." 

As  it  reads  here  it  says  that  the  clerk,  within  a  reasonable  time,  shall  forward 
these  lists  to  the  judges  of  election.  There  are  three  judges  and  they  do  not  live  at 
the  same  place.  You  cannot  forward  one  copy  to  three  judges.  Then  it  is  left  to  the 
clerk  to  say  what  would  be  a  reasonable  time.  The  amendment  I  offer  is  to  lessen  the 
opportunity  of  misplacing  or  losing  this,  list,  and  it  provides  that  the  clerk  should 
deliver  or  cause  to  be  delivered  to  one  of  the  judges  of  the  election  of  each  precinct  this 
list  with  the  poll  book.  The  judge  either  comes  to  the  clerk's  office  with  the  poll  book, 
or  it  is  delivered  by  the  clerk  to  the  secretary  of  the  electoral  board  and  he  delivers  it 
to  one  of  the  judges  and  takes  his  receipt  for  it,  and  with  the  poll  book  this  certificate 
can  be  delivered,  and  it  can  be  done  a  day  or  two  before  election  or  on  the  day  of 
election. 

Mr.  Kendall:  Would  it  not  be  better  to  say  that  the  clerk  shall  olace  it  in  the 
hands  of  the  sheriff,  who  shall  deliver  it  to  one  of  the  judges  of  election? 

Mr.  Parks:  I  use  this  language,  "shall  deliver  or  caused  to  be  delivered"  so  as 
to  leave  it  to  the  Legislature  to  say  who  shall  deliver  it. 

Mr,  Glass:  It  seems  to  me  the  responsibility  for  having  that  list  there  ought  to 
be  upon  the  clerk.  If  he  is  willing  to  trust  one  of  the  judges  to  do  it,  the  responsi- 
bility, at  any  rate,  of  having  the  list  there  ought  to  be  upon  the  clerK. 

The  amendment  was  agreed  to. 

Mr.  Barbour:  I  move  to  further  amend  Section  17  by  striking  out  the  w^ords 
"  made  out,"  in  line  8,  and  insert  the  words  "have  printed"  and  after  the  word  "ward" 
in  line  13,  to  insert  the  words  "  and  shall  keep  in  his  office  at  least  ten  printed  copies 
for  public  inspection,  and  shall  also  cause  the  said  list  to  be  published  in  such  other 
manner  as  may  be  prescribed  by  law." 

I  will  just  explain  briefly  that  the  object  of  this  amendment  is  to  safeguard  this 
list  against  fraudulent  use,  to  require  these  lists  to  be  printed  and  a  limited  number 
of  them  to  be  preserved  in  the  office  of  the  clerk  for  public  inspection,  and  that  they 
shall  be  published  in  such  other  manner  as  the  Legislature  may  prescribe.  The  only 
objection  I  have  heard  urged  is  that  there  would  be  expense  connected  with  the  print- 
ing of  these  lists.  I  call  attention  to  the  fact  that  it  would  cost  much  less  to  have  the 
lists  printed  than  it  would  to  have  a  dozen  or  so  copies  made  by  hand,  as  would  be 
necessary  in  even  the  smallest  county  under  this  provision.  It  would  also  furnish 
every  voter  with  an  opportunity  of  knowing  thirty  days  before  his  opportunity  to 
register  had  expired  whether  or  not  his  name  is  on  the  list,  and  therefore  he  can  have 
no  excuse  for  not  having  his  name  inserted  on  the  list.    It  will  also  enable  him  to  have 


3042  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

his  name  put  on  the  list  if  it  has  been  fraudulently  or  by  design  omitted.  1  hope  the 
amendment  will  commend  itself  to  the  gentleman  from  Lynchburg. 

The  amendment  was  agreed  to. 

Section  17  was  adopted. 

Mr.  Daniel:  Mr.  President,  I  desire  to  offer-  as  an  amendment  to  this  section,. 
Section  17,  to  come  in  after  line  30,  on  page  10,  the  following: 

The  production  to  the  officers  of  election,  by  any  person  duly  registered,  of  his. 
receipt  for  payment  of  the  capitation  taxes  prescribed  as  a  prerequisite  to  the  right  to 
vote  shall  be  evidence  of  such  payment. 

The  receipt  for  any  payment  made  by  any  debtor  to  his  creditor  in  any  matter  of 
business  is  prime  facie  evidence  of  such  payment  all  the  world  over,  and  is  the  most 
just  and  natural  of  all  evidences  of  payment.  It  is  evidence  of  the  payment  of  every 
other  tax  assessed  against  the  tax-payer  by  the  Commonwealth,  but  in  this  case  it  is 
not  made  evidence  to  the  officers-  of  election  of  payment. 

I  do  not  perceive  that  there  is  any  good  or  sufficient  reason  why  it  should  not  be 
such  evidence.  On  the  contrary,  I  believe  that  greater  opportunity  for  fraud  will  arise 
from  not  making  it  evidence  than  from  making  it  so,  and  will  give  opportunity  for 
fraud  upon  a  larger  and  more  disastrous  scale.  As  this  article  now  stands,  the  treas- 
urer of  each  county  or  city  is  required  to  certify  to  the  Clerk  of  the  Circuit  or  Corpora- 
tion or  County  Court,  as  the  case  may  be,  a  list  of  all  who  have  paid  their  capitation 
taxes.  The  clerk,  in  turn,  must,  within  ten  days  from  the  receipt  thereof,  make  out 
and  certify  copies  for  each  voting  place  in  the  magisterial  district,  and  the  Sheriff  of 
the  county  or  Sergeant  of  the  city  must  post  the  list  at  each  voting  place  in  said  dis- 
trict or  ward.  A  reasonable  time,  also,  before  the  election,  the  Clerk  is  to  certify  to  the 
judge  of  the  election  in  each  precinct  of  his  county  or  city  a  like  certified  copy  of  the 
list  of  those  in  the  magisterial  district  or  ward  in  which  such  precinct  is  located.  If 
by  any  accident  or  miscarriage  this  list  is  lost,  the  people  who  vote  at  that  place  are 
disfranchised.  They  may  go  to  the  poll  with  their  receipts  in  their  pockets.  They 
may  have  paid  the  capitation  taxes  for  each  of  the  three  years  as  required  by  law. 
They  may  be  the  most  honorable  and  the  best  citizens  of  this  Commonwealth,  but  if 
any  accident  to  the  mail,  or  otherwise,  has  prevented  that  certified  list  from  being  in 
the  hands  of  the  judges  of  the  election  these  citizens  are  to  stand  around  the  polls 
silent,  eliminated,  extinguished,  and  disfranchised.  I  do  not  think  this  is  just,  and 
I  offer  this  amendment,  hoping  that  the  Convention  will  make  the  receipts  what  they 
naturally  are — evidence  of  the  payment  of  the  capitation  tax  which  corresponds  to  it. 

Mr.  Davis:  This  section  provides  that  the  capitation  tax  shall  be  paid  at  least 
six  months  before  the  election.  If  the  receipt  was  taken  as  evidence  of  its  payment, 
would  the  receipt  have  to  show  that  it  was  paid  six  months  prior  to  the  election? 

Mr.  Daniel:  The  tax-payer  has  got  to  prove  that,  and  the  receipt  ought  to  be  dated; 
and  it  ought  to  carry  on  its  face  the  proof.  If  it  was  not,  it  would  be  an  insufficient 
and  incomplete  receipt. 

Mr.  Lindsay:  The  amendment  which  was  just  adopted  a  few  moments  ago,  offered 
by  the  gentleman  from  Culpeper  (Mr.  B-arbour),  provided  for  ten  additional  lists,  as 
I  understood  the  amendment.  What  would  be  the  difficulty  of  obtaining  another  copy 
from  the  clerk's  office  in  the  event  that  a  list  should  be  misplaced.  Would  not  that 
list  be  prima  facie  evidence  of  the  payment  of  the  tax? 

Mr.  Barbour:    My  amendment  also  requires  an  additional  system  of  publication. 

Mr.  Daniel:  Mr.  President,  we  do  not  know  whether  the  law  will  prescribe  any 
additional  method  or  not,  but  I  insist  that  if  a  man  has  paid  his  taxes  he  ought  to 
be  secured  in  his  right  to  vote.  The  State  has  received  the  consideration  it  asked, 
and  it  ought  to  guarantee  to  him  the  consideration  he  is  entitled  to. 

Mr.  Keezell:    What  would  there  be  to  prevent  a  treasurer  who  saw  fit  to  do  so,. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


3043 


after  having  sent  his  list  to  the  Auditor  showing  all  the  names  of  those  who  had  paid 
the  capitation  tax,  from  issuing  receipts  to  all  the  people  whom  he  wants  to  vote  and 
hack-dating  them  so  that  they  may  come  in  on  the  day  of  election  and  vote  without 
the  county  ever  having  gotten  from  them  a  single,  solitary  cent? 

Mr.  Daniel:  A  treasurer  who  would  do  so  rascally  and  execrable  a  thing  as  that 
vrould  also  conspire  to  commit  fraud  in  other  ways.  Legal  action  ought  to  he  taken  in 
his  case,  and  he  should  be  made  to  answer  for  it. 

And  furthermore,  Mr.  President,  if  an  additional  amendment  such  as  that  offered 
by  the  gentleman  from  Henrico  is  attached  to  this  provision,  requiring  a  daily  record 
to  be  kept  of  the  persons  who  have  paid  their  capitation  taxes  and  making  any  false 
entry  in  or  omission  from  such  record  a  felony,  you  would  have  done  all  that  the  law 
can  do  to  run  dovrn  and  to  punish  such  a  fraud.  The  very  suggestion  that  the  higher 
officers  of  this  Commonwealth  might  be  capable  of  committing  such  a  fraud  upon  the 
public  is,  in  itself,  an  argument  against  taking  away  from  the  citizen  the  right  of  using 
the  evidence  of  the  truth  which  he  has  in  his  pocket. 

Mr.  William  A.  Anderson:  I  w-ish  to  ask  w^hether  under  the  suffrage  article  in 
operation  in  the  State  of  South  Carolina  the  receipt  of  the  tax  collector  is  not  the  only 
evidence  required,  or  rather  the  main  evidence  required? 

Mr.  Daniel:    I  think  it  is.    It  is  in  Mississippi. 

Mr.  William  A.  Anderson:    I  understand  that  it  is  in  South  Carolina. 
Mr.  Daniel:    I  believe  in  South  Carolina  it  is  the  usual  and  general  evidence. 
Mr.  Waddill:    Mr.  President,  I  will  offer  this  amendment  as  an  addition  to  the 
amendment  offered  by  the  gentleman  from  Campbell  (Mr.  Daniel). 

The  Treasurer  shall  keep  a  daily  record  of  the  persons  who  have  paid  the  capita- 
tion taxes,  shall  date  every  receipt  given  for  payment,  and  his  record  shall  be  open  to 
public  inspection.  Any  false  entry  in,  fraudulent  omission  from  or  alteration  of  such 
record,  or  the  false  dating  of  a  poll-tax  receipt  shall  be  a  felony. 

I  think,  Mr.  President,  that  when  a  voter  has  done  all  that  the  law  requires  of  him 
to  entitle  him  to  vote,  and  he  has  the  evidence  of  it  in  his  pocket,  he  ought  to  be  allowed 
to  vote,  without  any  reference  to  the  question  whether  or  not  a  treasurer  may  or  may 
not  issue  fraudulent  receipts.  We  safeguard  that  by  making  the  treasurer  keep  a 
daily  record  of  the  payments  made  to  him.  If  he  antedates  any  receipt  or  makes  a 
fraudulent  entry,  or  alters  the  record  fraudulently,  he  is  guilty  of  a  felony,  and  can  be 
brought  into  court  and  tried  for  it. 

This  remedy,  which  is  offered  by  the  gentleman  from  Campbell,  is  cumulative  upon 
the  right  already  given  by  this  article  of  this  Constitution.  One  acts  as  a  check  and  .  a 
balance  upon  the  other.  By  this  arrangement  you  put  yourself  In  the  hands  of  two 
officers — the  treasurer  and  the  clerk  of  the  court.  If  the  treasurer  fails  to  furnish  to 
the  clerk  a  list  showing  all  the  names  of  those  who  have  paid  their  capitation  taxes, 
the  voter  is  required  to  trot  around  to  the  voting  precinct  to  find  out  whether  he  is  on 
the  list,  and  whether  he  is  disfranchised.  It  may  be  that  the  treasurer,  by  inadvertence 
in  keeping  the  list,  may  omit  something,  or  the  clerk  by  inadvertence  may  omit  some- 
thing, and  yet  if  the  voter  goes  to  the  poll  to  cast  his  ballot  with  his  tax  receipt  in  his 
pocket,  showing  that  he  has  done  all  that  the  law  requires  of  him,  he  is  deprived  of  the 
right  to  vote.  See  what  a  position  you  might  put  the  treasurer  and  the  clerk  in  simply 
by  reason  of  some  mere  inadvertence.  When  a  man  is  deprived  of  the  right  of  suffrage 
by  such  inadvertence  he  could  institute  a  suit  Tor  damages  for  the  action  of  these 
officers  in  leaving  him  off  the  list. 

While  I  am  on  my  feet,  Mr.  President,  I  will  call  attention  to  another  fact  connected 
with  this  article. 

The  article  says: 

The  treasurer  of  each  county  and  city  of  the  State  shall,  at  least  five  months  before 
any  election,  file  with  the  clerk  of  thie  Circuit  or  Corporation  Court  of  his  county  or 
city,  lists,  by  magisterial  districts  or  wards,  etc. 


3044  DEBATES  OF  THE  CON-STITUTIONAL  CONVENTION"  OF  VIRGINIA. 

You  have  made  a  cumulative  feature  in  relation  to  the  poll-tax.  After  this  list 
ceases  to  be  current  the  treasurer  has  nothing  further  to  do  with  It,  and  he  cannot 
collect  for  back  years.  Who  is  to  furnish  a  complete  list  of  the  people  who  have  paid 
their  capitation  taxes?  I  do  not  think  he  can  do  it.  I  certainly  do  hope  that  the 
amendment  offered  by  the  gentleman  from  Campbell,  supplemented  by  the  amendment 
which  I  have  offered,  will  pass  this  house,  because  it  is  an  act  of  justice,  and  one  is  a 
check  upon  the  other.  It  makes,  I  think,  a  proper  system  so  far  as  it  can  be  made 
perfect. 

Mr.  Daniel:    I  accept  the  amendment  offered  by  the  gentleman  from  Henrico. 

Mr.  Waddill:  It  is  a  serious  matter,  gentlemen,  after  the  voter  has  done  all 
that  the  law  requires  him  to  do,  to  require  him  in  addition,  so  many  days  before  an 
election,  to  leave  his  home  and  go  to  the  voting  precinct  to  inspect  the  list  to  see 
whether  his  name  is  on  it  or  not.  And  perchance,  gentlemen,  the  list  may  have  been 
taken  down  just  as  soon  as  it  is  posted,  and  before  the  opportunity  is  afforded  him  to 
see  it.    I  think  there  is  no  objection  hich  can  be  urged  successfully  against  this  plan, 

Mr.  Walker:  Is  it  not  a  fact  that  the  amendment  just  adopted,  offered  by  the 
gentleman  from  Culpeper,  provides  for  the  publication  of  the  list? 

Mr.  Waddill:  Yes  but  how  many  people  in  the  country,  I  would  ask  the  gentle- 
man from  Westmoreland,  ever  see  a  newspaper,  or  ever  take  time  to  inspect  the  list. 
In  addition,  if  he  is  left  off  the  list  you  require  him  to  do  what?  You  require  him  to 
go  and  hunt  up  a  Circuit  judge  and  give  the  treasurer  five  days  notice  before  he  can 
have  his  name  restored  to  the  list,  when  all  the  time  he  has  the  proof  of  payment  in 
his  own  pocket.  If  there  is  anything  wrong,  and  it  is  the  fault  of  the  treasurer,  he 
should  be  confronted  with  the  fact  and  should  suffer  for  it.  He  is  required  by  this 
amendment  to  keep  a  daily  record,  and  if  he  fails  to  keep  it  or  if  he  antedates  any 
receipt  or  otherwise  commits  fraud,  he  stands  a  chance  of  being  sent  to  the  penitentiary, 
and  you  will  find  that  he  will  not  do  it. 

The  ayes  and  noes  having  been  taken  upon  the  amendment,  the  result  was 
announced — ayes  17,  noes  48. 

The  amendment  was  rejected. 

Section  17  was  adopted. 

Mr.  Glass:    Mr.  President,  that  finishes  the  article. 

Mr.  Gilliespie:  Mr.  President,  I  move  as  a  substitute  for  the  article  which  has  been 
perfected  by  the  Convention,  the  article  reported  by  myself  to  the  Convention. 

Mr.  Glass:  I  hope  the  Convention  will  vote  upon  the  s.ubstitute  this  afternoon, 
and  let  these  gentlemen,  who  are  anxious  to  get  into  the  record,  satisfy  their  consti- 
tuents as  to  their  attitude  toward  the  Convention  on  the  main  proposition. 

Mr.  Pedigo:  That  is  the  very  point  we  do  not  wish  to  agree  to.  I  want  to  say, 
in  reply  to  that  proposition,  that  the  few  remarks  I  want  to  make  1  want  to  address 
to  the  substitute  offered  by  the  gentleman  from  Tazewell,  and  if  we  permit  a  vote  on 
that  to  be  taken,  there  will  be  really  nothing  for  us  to  discuss.  We  propose  to  debate 
that  matter,  but  we  do  not  want  to  talk  against  time.  We  are  not  trying  to  hold  you 
here  against  your  will.  It  will  not  take  any  longer  to  talk,  if  we  vote  after  we  have 
finished  the  debate,  than  it  will  if  we  vote  before  the  debate.  There  will  not  be  one 
second  of  time  occupied  by  speeches  that  we  make  before  the  vote  is  taken  more  ihan 
will  be  occupied  after  the  vote  is  taken.  We  want  to  discuss  this  matter.  I  do  not 
know  how  long  it  will  take.  Our  leader  is  sick  in  bed,  and  will  not  be  here.  Colonel 
Summers,  the  delegate  from  Washington,  is  very  sick. 

After  some  discussion  it  was  agreed  that  the  vote  should  be  taken  at  1:30  o'clock 
Friday  afternoon,  or  sooner  if  the  debate  should  have  terminated. 

Mr.  Thom:  On  behalf  of  the  Committee  on  Judiciary,  and  at  the  request  of  the 
chairman,  who  is  not,  himself,  in  accord  with  the  supplemental  report,  I  beg  to  present 
to  the  conference  the  supplemental  report  of  that  committee,  and  ask  that  it  lay  on  the 
table  and  be  printed. 

The  supplemental  report  is  as  follows: 


DEBATES  OE  THE  COXSTITUTIOXAL  CONVEXTIOX  OE  VIRGINIA. 


3045 


REPORT  OF  THE  COMMITTEE  ON  JUDICIARY 

In  Reference  to  the  Judge  of  the  Corporation  Court  in  Cities  Having  Less  than 

Five  Thousand  Inhabitants. 

To  the  Convention: 

The  Committee  on  Judiciary,  to  whom  the  resolution  introduced  by  Mr.  Anderson, 
of  Rocl?:bridge,  in  reference  to  the  judges  of  cities  having  less  than  five  thousand  inhabi- 
tants was  referred,  has  had  that  matter  under  consideration,  and  begs  leave  to  recom- 
mend that  the  following  section  be  adopted  as  an  independent  section,  to  be  incorporated 
in  the  Constitution  by  the  Committee  on  Final  Revision,  in  its  appropriate  place: 

Section  — .  The  Judge  of  the  Corporation  Court  of  any  corporation  having  a  city 
charter,  but  less  than  five  thousand  inhabitants,  may  reside  outside  its  corporate 
limits;  and  the  same  person  may  be  Judge  of  such  Corporation  Court  and  the  Judge 
of  the  Corporation  Court  of  some  other  city  having  less  than  ten  thousand  inhabitants. 

(Signed)  ALFRED  P.  THOM, 

For  Committee. 

Qn  motion  of  Mr.  Wise  the  Convention  adjourned  until  to-morrow,  Thursday,  April 
3d,  at  10  o'clock  A.  M.,  to  meet  in  the  hall  of  the  House  of  Delegates. 


THURSDAY,  April  3,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

Mr.  R.  Walton  Moore:  I  make  this  motion:  That  immediately  after  the  vote  is 
taken  on  the  pending  Suffrage  article  and  the  proposed  substitute  to-morrow  that  the 
Convention  proceed  to  consider  and  dispose  of  the  pending  motions  to  rescind. 

Mr.  Withers:  I  would  suggest  to  the  gentleman  from  Fairfax  that  he  leave  out 
the  word  "pending"  from  his  motion,  because  I  do  not  think  the  rescinding  resolutions 
contemplated  should  be  confined  to  those  simply  which  a  committee  sees  fit  to  report,, 
and  to  exclude  others  that  the  committee  does  not  see  fit  to  report. 

Mr.  R.  Walton  Moore:    I  will  accept  the  suggestion  of  the  gentleman  from  Danville. 

The  President:  The  question  is  on  agreeing  to  the  motion  of  the  gentleman  from 
Fairfax. 

The  motion  was  agreed  to. 

Mr.  Turnbull:    I  move  tnat  the  resolution  in  reference  to  the  rules  be  taken  up 
before  we  take  up  the  matter  of  the  resolutions  to  rescind. 
The  motion  was  agreed  to. 

Mr.  Flood:  Mr.  President,  that  proposition  just  means  that  no  matter  can  be 
rescinded  by  this  Convention  unless  it  receives  a  two-third  vote — that  is,  provided  the 
proposition  of  the  gentleman  from  Wythe  prevails.  If  that  proposition  is  taken  up 
and  prevails,  it  means  that  nothing  can  be  rescinded  by  this  body  unless  it  receives  a 
two-thirds  vote.  It  seems  to  me  that  if  the  majority  of  the  body  wants  to  rescind  action 
which  it  feels  to  be  wrong,  it  ought  to  have  a  right  to  do  it.  The  question  now  is 
whether  the  resolution  of  the  gentleman  from  Wythe  shall  be  taken  up  in  preference  to 
motions  to  rescind. 

I  move  to  reconsider  the  action  of  the  Convention  on  the  motion  of  the  gentleman 
from  Brunswick. 

I  will  state  my  reasons  for  wishing  to  take  up  the  matter  of  rescission  first.  We 
will  go  into  a  great,  long  discussion  here  as  to  changing  the  rules.  I  am  opposed  to- 
changing  the  rules.  I  am  in  favor  of  this  body  rescinding  a  measure  if  a  majority 
of  the  members  desire  to  rescind  it.  I  am  opposed  to  any  handicap  measures  requiring 
two-thirds  majority  to  rescind.    If  we  are  satisfied  that  we  have  made  a  mistake,  let 


3046 


DEBATES  OF  THE  CONSTITUTIOISrAL  CONVENTION"  OF  VIRGINIA. 


the  majority  of  the  Convention  rescind  its  action.  A  majority  of  the  Convention  has 
been  controlling  everything  in  this  body  heretofore,  and  if  we  are  satisfied  that  there 
has  been  a  mistake,  and  a  majority  of  the  members,  of  the  Convention  want  to  correct 
that  mistake,  let  them  do  it.  That  is  the  reason  I  do  not  want  to  have  the  proposition 
up.  I  do  not  see  any  use  in  occupying  the  time  of  the  convention,  when  we  all  want  to 
get  away  in  two  or  three  days,  in  discussing  a  change  of  the  rules  that  v/ill  be  opposed. 
I  do  not  believe  the  majority  of  this  convention  is  going  to  tie  its  hands  so  as  to  say 
that  it  will  take  two-thirds  of  the  Convention  to  correct  any  mistake  which  has  been 
made  here.  The  debate  is  limited  to  fifteen  minutes  upon  the  various  propositions. 
We  can  take  the  propositions  up  and  dispose  of  most  of  them  to-morrow  in  the  time 
which  it  would  take  to  discuss  the  matter  which  the  gentleman  from  Brunswick  wishes 
to  open  up. 

Mr.  William  A.  Anderson:  How  many  propositions  of  this  sort  do  you  suppose  will 
be  submitted.    Are  there  more  than  two  or  three? 

Mr.  Flood:  I  do  not  think  there  are  more  than  two  or  three.  My  position  is.  that 
I  am  going  to  vote  against  rescinding  anything  passed  by  the  Convention  after  due 
and  deliberate  consideration.  The  proposition  which  I  submitted  here  I  think  was 
passed  without  debate  and  without  due  and  deliberate  consideration  by  this  body. 
There  may  have  been  other  propositions  passed  in  a  similar  manner.  I  do  not  know 
of  more  than  two  or  three  propositions  to  rescind  v/hich  are  pending,  and  if  debate 
is  limited  to  half  an  hour  on  each  of  them  we  will  get  through  with  the  matter  in  the 
time  it  would  take  to  discuss  the  proposition  to  amend  the  rules. 

Mr.  Turnbull:  Mr.  President,  I  would  like  to  say  just  a  word.  I  do  not  want  to 
go  into  the  discussion  of  the  question  of  the  rules  now,  but  the  reason  why  I  made  the 
motion  to  rescind  the  action  of  the  Convention  on  Saturday  changing  the  rules,  on 
the  motion  of  the  gentleman  from  Warren,  was  because  the  rules  which  we  now  have 
provide  how  these  things  shall  be  done.  I  think  when  that  is  properly  understood,  and 
I  think  if  members  will  look  into  the  matter  they  will  find  that  it  is  a  fact,  there  will 
be  no  change  in  the  rules.  I  think  in  these  matters  we  ought  to  proceed  under  the 
rules  and  reconsider  any  matter  which  the  Convention  thinks  ought  to  be  reconsidered. 
That  is  the  position  which  I  occupy  in  reference  to  this  matter. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Appomattox 
to  reconsider. 

The  question  having  been  taken,  the  result  was  announced — ayes  26,  noes  44. 
The  motion  to  reconsider  was  rejected. 

The  President:  The  unfinished  business  this  morning  is  the  consideration  of  the 
article  on  Suffrage,  and  the  matter  under  consideration  is  the  substitute  offered  by  the 
gentleman  from  Tazewell  (Mr.  Gillespie). 

Mr.  Pedigo:  Mr.  President,  the  substitute  we  offer  is  simple,  it  Is  just,  it  is  in 
full  accord  with  the  Constitution  of  the  United  States.  It  changes  the  present  Consti- 
tution but  slightly.  It  is  free  from  all  chance  of  misunderstanding;  it  provides  for  a  per- 
fectly honest  election  law,  a  law  that  would  indicate  the  condition  of  public  sentiment 
with  all  the  accuracy  and  fidelity  that  a  therm-ometer  indicates  the  temperature  of  the 
atmosphere  or  a  weather  vane  shows  which  way  the  wind  is  blowing.  These  are  factsr 
that  ought  to  be  known.  We  offer  it  as  a  substitute  for  a  document  that,  to  tell  the  sim- 
ple truth,  is  a  labyrinth  of  pitfalls  dug  artfully  and  ingeniously  in  dark  places  along 
the  footpath  of  the  unsuspecting,  having  unquestionably  for  its  object  to  get  as  many 
of  the  poor  and  illiterate,  and  especially  negroes,  into  a  hole  as,  possible.  It  seems  to 
have  been  aim^ed  at  the  negroes,  but  it  scatters  so  badly  that  lots  of  white  people  will 
be  hurt.  Such  provisions,  in  our  judgment,  are  unworthy  of  a  place  in  the  organic  law 
of  this  or  any  other  State. 

I  feel  it  to  be  a  duty  I  owe  to  my  own  conscience,  to  my  constituents,  to  the  people 
of  the  entire  State,  and  the  United  States,  to  enter  my  earnest  protest  against  any 
and  every  movement  towards  the  disfranchisement  of  any  of  the  citizens  of  the  State, 


DEBATES  OE  THE  COXSTITUTIOXAE  COXVEXTIOX  OE  VIEGIXIA. 


30-iY 


:as  being  wrong  any  unlawful.  We  have  no  more  right,  in  law,  to  rob  a  man  of  his  rights 
as  a  voter,  than  we  have  rob  him  of  his  liberty,  his  property,  or  his  life.  We  may 
have  the  power  to  do  it,  but  it  will  be  a  wrong  and  an  outrage  to  do  it. 

After  many  years  of  diligent  study  1  am  thoroughly  convinced  that  universal  man- 
hood suffrage  is  not  only  right  but  that  it  is  absolutely  necessary  in  any  and  all 
democratic  governments. 

I  cannot  tolerate  the  thought  of  depriving  even  one  of  the  humblest  of  our  citi- 
zens of  his  right  to  vote,  and  to  have  his  vote  counted,  and  honestly  weighed  in  making 
up  the  returns.  No  matter  how  humble,  or  poor,  or  ignorant,  or  black  he  may  be, 
though  the  "  emptiness  of  ages  be  in  his  face,"  and  "  on  his  back  the  burden  of  the 
world/'  yet  I  would  put  and  keep  a  ballot  in  his  hand,  fully  satisfied  that  it  could 
do  me  no  harm  and  might  do  him  some  good,  and  that  it  might  at  least  have  a  tendency 
""to  straighten  up  his  form,"  and  give  back  to  him  an  '"upward  looking  and  a  light"; 
"to  make  right  the  immemorial  infamies,  perfidious  wrongs,  Immedicable  woes"  inflicted 
upon  him  and  his  ancestors  by  us  and  our  ancestors  for  many  generatioqns. 

I  am  abundantly  satisfied  that  it  is  safer,  easier,  and  more  practicable  to  govern 
ignorant  people  as  fellow-citizens  than  as  subjects.  Just  so  long  as  they  feel  them- 
selves full  citizens  they  will  render  willing  obedience  to  the  laws  and  aid  in  their  execu- 
tion. As  soon  as  they  find  themselves  subjects  they  will  become  discontented,  and  will 
do  all  in  their  power  to  hinder  the  execution  of  the  laws.  They  will  look  upon  the  govern- 
ment as  an  enemy  that  is  trying  to  injure  and  oppress  them,  and  will  have  for  it  no 
good  will.  Only  think  for  a  moment  of  the  condition  of  things  in  a  democratic  govern- 
ment, where  one  third  of  the  people  are  in  all  things  political  the  abject  subjects  of 
the  other  two  thirds,  and  the  one  third  feeling  that  the  two  thirds  are  their  enemies, 
doing  all  they  can  to  injure  and  oppress  them.  Such  would  be  the.  condition  in  Vir- 
ginia if  the  white  people  should  disfranchise  the  negroes. 

I  say  the  negroes,  for  it  is  notorious  to  all  that  it  is  not  the  ignorant,  the  vicious, 
or  the  dangerous  vote  that  we  are  trying  to  get  rid  of;  but  the  negro  vote,  and  not 
because  it  is  bad  in  any  other  respect;  but  because  they  are  all  Republicans,  and 
because  they  are  all  non-purchasable.  All  the  money  in  the  world  cannot  buy  them. 
They  stick  to  their  party  allegiance  with  all  the  faith  and  fidelity  that  made  the  early 
Christians  suffer  martyrdom  rather  than  renounce  their  religion.  The  votes  of  vast 
numbers  of  them  have  been  stolen,  but  none  have  been  bought.  They  are  much  more 
intelligent  that  they  have  ever  had  credit  for  being,  and  if  we  drive  them  to  desperation, 
as  this  plan  will  certainly  do  if  it  gets  full  force,  they  will  band  themselves  into  secret 
societies,  just  as  the  people  of  older  countries  have  always  done,  to  protect  themselves 
against  their  tyrants;  and  there  will  be  high  times  in  the  old  State  yet.  Our  peace 
and  our  prosperity  will  be  sacrificed  on  the  altar  of  our  prejudices. 

The  lesson  of  one  generation  of  freedom  teaches  that  the  negroes  work  far  more 
diligently  and  intelligently  as  freemen  than  as  slaves.  The  lightest  crop  of  cotton 
grown  in  the  worst  season  of  the  thirty-five  years  of  free  labor  is  greater  than  the 
heaviest  crop  made  in  the  three  best  seasons  by  slaves. 

In  order  that  I  may  not  be  misunderstood  I  will  here  state  that  I  do  not  consider 
the  negro  as  being  equal  or  anything  near  equal  to  the  white  man  in  intelligence,  or 
learning,  or  capacity  for  self-givernment.  I  do  not  believe  that  they,  if  left  to  them- 
selves, could  carry  on  a  free  republican  government. 

To  say  that  five  or  six  generations  of  slavery  could  take  a  naked  savage  from 
Africa  and  fit  him  for  the  high  duties  and  responsibilities  of  self-government,  would 
be  to  pass  an  encomium  on  slavery  that  I  am  not  prepared  to  assume  the  authorship 
of.  I  am  well  aware  tliat  If  Virginia  is  to  have  even  a  decent  government,  it  must 
be.  in  the  main,  a  governm^ent  by  the  white  people.  But,  the  negro  is  here,  he  is  a  part 
of  us;  we  cannot  do  him"  a  wrong  without,  at  the  same  time,  doing  ourselves  a  wrong. 
We  must  hold  him  up;  we  must  help  him  along;  and,  above  all  things,  we  must  do  him 
justice.    We  are  in  the  same  ship  with  him.    If  that  ship  sinks  we  will  all  be  drowned 


3048  DEBATES  OF  THE  CONSTITUTIOIsTAL  C02s^VENTI0N"  OF  VIRGINIA. 

together.  Providence  deals  with  us  all  alike.  A  few  years  ago  when  an  earthquake 
struck  the  city  of  Charleston;  shook  down  many  of  its  buildings;  killed  some  of  its 
people;  wounded  and  bruised  many  more,  and  greatly  alarmed  them  all,  the  artificial 
lines  that  divided  society  into  its  several  strata  were  completely  obliterated;  and  for 
a  time  at  least, the  people  of  that  stricken  city  were  all  mixed  up  together.  The  same 
thing  again  occured  when  the  most  terrible  scourge  ever  inflicted  by  the  angry  gods 
upon  a  suffering  people,  a  visitation  of  the  yellow-fever,  ravaged  the  cities  and  towns 
around  the  Mexican  Gulf,  and  along  the  Mississippi  river.  Society  lines  were  com- 
pletely obliterated,  and  all  felt  their  helplessness,  and  gave  up  their  pride.  At  a  more 
recent  date  on  one  day  Galveston  was  an  opulent,  proud,  and  flourishing  city;  the  next, 
a  ghastly  heap  of  wrecked  and  ruined  buildings.  Ships  and  merchandise  mixed  and 
commingled  with  the  dead,  the  dying,  the  maimed  and  bruised  bodies  of  the  late  inhabi- 
tants of  that  city.  All  fared  alike.  We  should  give  heed  to  these  lessons.  They  teach 
us  plainly  what  our  duty  is.  To  me  it  looks  plain  that  we  should  forever  abandon  the 
thought  of  having  a  degraded  and  subject  race  amongst  us.  We  should  immediately 
renew  the  ancient  convenant;  we  should  now  place  in  our  ark  of  the  covenant  the 
Declaration  of  Independence,  and  the  Bill  of  Rights,  not  in  their  mutilated  and  crippled 
form,  but  just  as  they  came  from  the  hands  of  their  authors. 

We  should  also  place  in  it  the  Constitution  of  the  United  States;  the  Ten  Com- 
mandments, and  the  Sermon  on  the  Mount,  and  try  to  square  our  conduct  hereafter  to 
the  requirements  of  thes,e  high  authorities. 

I  have  no  doubt  there  are  some  good  Christian  in  this  Convention  and  many  out- 
side of  it,  who,  when  they  get  to  heaven,  will  be  grievously  disappointed,  and  will  be 
sure  to  grumble  if  they  find  that  the  street-cars  that  glide  along  the  golden-paved  streets 
of  the  New  Jerusalem  have  no  Jim  Crow  attachments. 

The  difficulties  that  surround  this  Convention  are  considerable  but  trifling  indeed 
when  compared  to  the  dan:gers  that  surrounded  the  so-called  Underwood  Convention. 
Since  the  time  of  that  Convention  we  have  had  thirty-four  years  of  experience  and 
experiment. 

Then  the  smoke  of  the  greatest  war  of  modern  times  had  hardly  blown  away. 
Then  the  wounds  of  that  war  were  still  bleeding  and  sore.  The  graves  of  hundreds 
of  thousands  of  its  victims  were  still  fresh.  Then  the  government  as  freemen  consist- 
ing of  large  numbers  of  recently  emancipated  slaves  was  an  untried  experiment.  That 
Convention  met  and  deliberated  under  the  authority  of  a  military  government.  Con- 
stituted as  it  was,  I  doubt  whether  it  could  have  gone  through  with  Its  work  without 
the  strong  arm  of  an  army  commander  to  keep  it  in  order.  Nearly  every  member  of 
this  Convention  has  found  occasion  to  fire  a  volley  of  epithets  and  disrespectful  adjec- 
tives across  the  vista  of  more  than  a  third  of  a  century  at  that  unfortunate  gathering 
of  statesmen,  all  of  whom,  so  far  as  I  know,  have  been  gathered  to  their  fathers.  It 
appears  to  fall  naturally  to  my  lot  to  come  to  their  defence  more  in  the  capacity  of  an 
assignee  than  as  an  employed  counsel.  As  regards  the  average  personel  of  that  body 
of  men,  candor  compels  me  to  admit  in  the  language  of  the  Queen  of  Sheba,  who,  after 
viewing  the  splendor  and  magnificence  of  Solomon's  establishment,  said  that  verily  the 
half  has  not  been  told.  In  somber  truth  that  was  the  most  grotesque  gathering  of  men 
ever  assembled  for  legislative  purposes  on  this  or  any  other  continent. 

They  divided  themselves  into  four  groups,  or  factions,  the  most  pictursque  of  which 
was  a  group  of  negroes  just  out  from  under  the  overseer's  lash.  They  stood  bewildered, 
amazed  and  dazed  at  their  sudden  change  of  fortune.  They  had  come  to  help  make  a 
Constitution,  but  they  had  no  idea  what  sort  of  a  looking  thing  a  Constitution  was,  nor 
what  people  had  them  for,  anyway.  But  they  were  ready  to  go  to  work,  if  anybody 
would  show  them  how. 

Then  there  was  a  group  of  northern  men,  camp-followers,  who  had  drifted  here 
either  in  or  after  the  army.  They  cared  nothing  about  it.  They  came  like  a  flock  of 
pigeons,  following  up  the  mast;  they  were  here  for  what  there  was  in  it,  and  nothing 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  oOiJ 

else.  Another,  and  by  far  the  most  dangerous  group,  was  composed  of  natives  who  were 
not  wanting  in  talent  or  ability,  but  who  were  smarting  under  the  humiliation  of 
defeat.  So  far  as  the  reconstruction  of  the  Union  was  concerned,  they  wanted  none  of 
it.  They  Y/ere  perfect  Nihilists.  They  desired  to  make  the  work  of  the  Convention 
so  odious  that  it  v/ould  be  rejected  by  the  people.  In  this  they  would  have  succeeded 
but  for  the  presence  of  the  fourth  group,  which  was  made  up  of  twenty-five  or  thirty 
wise,  learned,  patient,  patriotic  citizens,  who  earnestly  desired  to  give  the  people  of 
the  State  relief  from  the  anomalous  and  distressing  conditions  under  which  they  were 
suffering.  Most  of  them  came  from  the  Valley  and  the  Southwest,  but  some  of  them 
were  from  the  East.  They  v^^orked  in  silence  and  in  earnest.  They  v/ere  not  charged 
with  the  regulation  of  suffrage;  that  was  handed  to  them  by  the  Congress  of  the  United 
States,  and  they  were  required  to  build  upon  it.  Neither  did  they  give  much  attention 
to  the  mere  form  of  government,  but  simply  compiled  it  from  the  Constitutions  of 
other  States,  principally  New  York.  They  had  three  great  problems  to  wrestle  with. 
The  first  was  to  keep  the  negroes  from  being  re-enslaved  or  greatly  wronged  and 
opposed,  as  it  was  plainly  to  be  seen  that  they  would  be  as  soon  as  their  old  masters 
got  back  into  power,  if  some  effectual  protection  were  not  provided  for  them.  What 
was  done  was  to  restrict  poll-taxes  to  one  dollar  for  the  State,  and  fifty  cents  for  the 
counties,  and  to  provide  that  they  should  have  their  full  share  per  capita  of  school 
money.  And  that  the  Constitution  should  never  be  so  altered  as  to  deprive  them  of  their 
rights  to  vote;  the  last  provision  is  also  contained  in  the  act  of  Congress  readmitting 
the  State  to  the  Union. 

The  second  problem  was  to  prevent  the  negroes,  in  their  ignorance  and  inexperi- 
ence, from  electing  unsuitable  persons  to  high  and  important  officers,  where  they  hap- 
pened to  be  in  the  majority,  especially  judges  and  school  superintendents.  This  danger 
was  guarded  against  by  making  these  officers  elected  by  the  General  Assembly. 

The  third  great  danger  was  that  a  spirit  of  agrarianisni  would  show  up  in  a  com- 
munity so  largely  of  non-property-owners.  The  safeguards  placed  around  the  property- 
holders  are  contained  in  Article  X,  which,  so  far  as  I  know,  have  proved  effectual. 
In  fact,  no  spirit  of  agrarianism  has  ever  been  manifested. 

So  the  real  v/orkers  in  that  Convention,  while  the  carpet-baggers  on  the  one  side 
and  the  Nihilists  on  the  other  were  bandying  epithets  and  insults  across  the  hall,  suc- 
ceeded in  presenting  to  the  people  for  ratification  or  rejection  a  Constitution  that  v/as 
accepted  by  a  very  large  majority  of  the  citizens  of  the  State.  One  that,  notwithstand- 
ing the  fact  that  the  number  of  men  as  compared  vdth  total  population  was  much  less 
then  than  now  on  account  of  casualties  of  war,  when  total  population  was  not  more 
than  two-thirds  of  what  it  is  now,  received  a  larger  affirmative  vote  than  any  candi- 
date or  any  measure  has  ever  received  from  that  day  to  this,  and  fully  three  times  as 
many  as  is  claimed  to  have  voted  for  the  calling  of  this  Convention.  Those  votes 
were  all  freely  and  fairly  given,  which  cannot  be  fruitfully  said  of  the  77,3G2  v/ho  have 
lately  taken  the  sovereignty  of  Virginia  into  their  custody. 

It  is  apparent  to  all  that  Virginia  is  now  in  a  miserable  plight.  Something  must 
be  done  for  her.  The  present  state  of  things  cannot  continue.  The  infamous  election 
law  that  now  disgraces  our  statute  books  must  be  abated.  Nearly  all  agree  to  this, 
but  a  part  of  our  people  who  style  themselves  the  best  people  contend  that  they  can- 
not concede  honest  elections  except  on  condition  that  a  very  large  number  of  the  voters 
be  disfranchised.  They  well  know  that  they  are  in  the  minority.  They  confessed  as 
much  when  they  enacted  a  dishonest  election  law  that  intended  to  perpetrate  fraud, 
for  no  body  of  intelligent  men  would  resort  to  such  crookedness  if  they  could  hope  to 
succeed  in  a  decent,  straightforward  way.  They  say  the  negro  has  caused  it  all,  if  he 
has  not  done  it  all;  he  has  irritated  them  and  caused  them  to  sin;  if  he  had  been 
out  of  the  way  they  would  have  behaved  better.  Perhaps  this  is  true;  let  us  hope  it 
is  true.  I  have  heard  the  remark  of  late  so  often  that  the  government  of  Virginia  is 
a  government  of  lawyers  that  I  have  come  to  fully  believe  it.    Charles  Dickens  defines 

192 — Const.  Deb. 


3050 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


and  describes  a  lawyer  as  a  man  skilled  in  finding  a  way  around  the  law,  who  makes 
his  living  by  helping  criminals  and  wrong-doers  to  escape  the  penalities  of  their  viola- 
tions of  the  law.  Hard  as  the  confession  is  for  me  to  make  I  can  see  no  way  to  get 
along  without  them.  If  I  argue  a  case  according  to  the  light  of  a  plain,  blunt  man,  as 
I  am,  I  am  sure  to  be  met  by  some  lawyer  with  a  famous  case  that  grew  out  of  a  lot 
of  goods  lost  in  a  storm  on  the  Persian  gulf  about  200  years  ago  and  adjudicated  in  the 
Persian  courts.  That  settles  the  case  against  me,  and  I  have  no  more  to  say.  He  has 
taken  me  with  what  the  boys  of  my  time  called  a  sockdolager.  Not  feeling  able  to 
cope  with  them  myself,  I  have  consulted  one  of  the  clearest-headed  lawyers  in  the  State 
as  to  the  law  applicable  to  the  subject  now  under  consideration.  He  has  replied  in  a 
letter  which  appears  to  me  to  be  so  unanswerable  that  I  will  read  it  as  a  part  of  my 
speech,  or  if  by  unanimous  consent  I  am  permitted  to  have  it  included  in  the  report  of 
my  speech,  I  will  simply  hand  it  to  the  stenographer  and  save  his  work  and  the  Con- 
vention's patience. 

The  Secretary  read  the  letter  referred  to  as  follows: 

To  the  Hon.  A.  L.  Pedigo,  Member  of  the  Constitutional  Convention  of  Virginia: 

Dear  Sir:  As  one  of  your  constltutents  I  take  the  liberty  of  expressing  my  views 
on  the  most  important  question  now  pending  before  the  Convention,  of  which  you 
are  a  member — that  of  regulating  and  fixing  the  right  of  suffrage. 

I  will  say  first,  that  your  course  in  the  Convention  meets  my  approval,  and,  I 
believe,  the  approval  of  a  majority  of  the  people  of  Henry  county. 

This  question  of  suffrage  is  really  of  paramount  importance,  and  should  be  con- 
sidered by  the  Convention  as  free  from  party  and  race  prejudice  as  possible.  It  is  by 
the  right  to  vote,  only,  that  the  people  can  protect  their  natural,  civil,  and  political 
rights  in  a  republican  form  of  government. 

When  the  Declaration  of  Independence  declared  "that  all  men  are  created  equal; 
that  they  are  endowed  by  their  Creator  with  certain  inalienable  rights,  that  among 
these  are  life,  liberty  and  the  pursuit  of  happiness;  that  to  secure  these  rights  govern- 
ments are  instituted  among  men,  deriving  their  just  powers  from  the  consent  of  the 
governed,"  the  immortal  Jefferson,  who  planned  these  truths,  and  the  Congress  that 
endorsed  them,  did  not  mean  that  all  men  when  created  were  equal  physically  or 
mentally,  but  they  did  mean  in  my  judgment  that  in  a  state  of  nature,  man  as  created 
by  God,  whether  intelligent  or  ignorant,  rich  or  poor,  white  or  black,  had  equal  rights 
to  life,  to  liberty,  equal  right  to  the  pursuit  of  happiness,  and  to  acquire  and  hold 
property.  In  order  to  protect  these  natural  rights,  they  have  by  the  laws  of  nature, 
and  should  have  b3^  the  Constitution  and  laws  of  government,  equal  civil  and  political 
rights,  amongst  which  should  be  included  the  right  to  vote  for  their  agents. 

"When  these  principles  of  liberty  and  equal  rights  were  first  asserted  by  Jefferson 
and  his  compeers,  they  were  not  then  enjoyed  hy  the  people  -of  any  government  in  exis- 
tence, nor  Y/ere  recognized  in  the  government  of  the  United  States,  or  by  the  Consti- 
tutions of  the  several  States  soon  thereafter  adopted.  Not  because  Jefferson  and  other 
advanced  thinkers  did  not  believe  in  their  justice  and  truth,  but  because  the  ruling 
class,  the  educated  and  property-holders  were  not  willing  to  diminish  their  povx-er, 
and  to  trust  the  masses  of  the  people.  Slavery  was  recognized  in  the  Constitution  of 
the  United  States  by  a  Compromise  between  the  friends  of  freedom  and  slavery;  and 
the  first  Constitutions  of  all  the  old  States  restricted  suffrage.  The  Virginia  Consti- 
tution of  1776  confined  the  right  to  vote  to  freeholders.  The  Convention  of  1829  and 
'30  conferred  this  right  of  franchise^,  as  they  called  it,  to  housekeepers  and  heads  of 
families  who  paid  a  revenue  tax,  however  small;  this  they  did  reluctantly,  and  many 
able  men  in  and  out  of  the  Convention  condemned  it,  and  predicted  that  injury  to  the 
State  v/ould  result  from  it,  but  no  harm  seemed  to  have  been  the  result.  The  friends 
of  a  freer  and  more  liberal  Constitution  than  that  of  1829  and  '30,  more  in  accordance 
with  the  principles  of  freedom  and  equality;  asserted  in  the  Declaration  of  Independ- 
ence and  the  Bill  of  Rights,  called  the  Convention  of  1850  and  '51.  Tliis  Convention 
conferred  the  right  of  suffrage  upon  all  white  men  over  twenty-one  years  of  age,  and 
made  all  the  officers  of  the  government,  or  nearly  all,  elective  directly  by  the  people, 
including  legislative,  executive  and  judical  officers.  The  minority  of  the  people  of 
Virginia,  then  called  Conservatives,  predicted  the  most  direful  calamities  from  this 
radical  Constitution,  as  they  called  it.  The  negroes  of  Virginia  v/ere  then  without  prop- 
erty, and,  of  course,  had  to  vote.  The  officers  elected  under  that  Constitution  compared 
favorably  with  those  elected  during  any  other  period  of  our  history,  and  for  ten  years 
the, State  prospered  under  that  Constitution. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA.  3051 

In  1861  another  Convention  was  called.  It  was  called  to  consider  the  question  of 
Union  or  Secession.  A  majority  of  that  Convention  was  elected  as  Union  men,  pledged 
to  the  people  of  Virginia  not  to  secede  from  the  Union,  but  on  the  17th  day  of  April, 
1861,  they  declared  the  withdrawal  of  Virginia  from  the  Union  and  attached  her  destiny 
to  that  of  the  Confederate  States.  From  that  time  until  the  year  1870,  a  period  of  nine 
years,  the  people  of  Virginia  were  under  military  rule  first  under  that  of  the  Confederate 
Government,  from  April  the  17,  1861,  to  the  surrender  of  General  Lee,  in  April,  1865, 
a  period  of  four  years.  This  military  rule  from  my  view,  was  the  most  absolute' 
arbitrary,  despotic  and  oppressive  that  was  ever  felt  by  the  people  of  Virginia.  Every 
able-bodied  male  citizen  of  Virginia,  between  the  ages  of  sixteen  and  sixty,  was  finally 
forced  into  the  army  and  compelled  to  fight  for  the  right  of  secession  and  the  perpetua- 
tion of  slavery,  whether  willing  or  unwilling,  and  this  burden  was  inflicted  upon  them 
without  compensation,  while  the  families  of  many  of  them  suffered  for  fhe  necessaries 
of  life.  When  General  Lee  surrendered  we  passed  under  the  military  rule  of  the 
Federal  Government,  and  whilst  all  military  government  is  arbitrary  and  that  of  the 
United  States  in  Virginia  was  vexatious  and  oppressive  in  some  instances  it,  in  my 
judgment,  was  mild  indeed  when  compared  with  that  inflicted  upon  us  by  the  military 
rule  of  the  government  of  the  Confederate  States.  A  large  majority  of  the  people  of 
Virginia  were  anxious  at  this  time  to  get  back  into  the  Union  upon  the  best  terms 
practicable.  The  government  of  the  United  States  as  the  successful  party  in  the  late 
Civil  War  had  the  power  to  fix  the  terms.  We  were  out  of  the  Union  whether  rightfully 
or  wrongfully.  If  the  right  of  secession  existed  we  were  out  legally  and  rightly.  If 
it  did  not  exist  under  the  Constitution,  we  were  out  by  force  and  wrongfully.  We  were 
in  fact  out,  and  had  united  ourselves  to  a  government  at  war  with  the  United  States. 
To  get  back  we  must  comply  with  the  terms  imposed  by  the  successful  party. 

These  terms  were:  First,  that  we  should  acknowledge  the  abolition  of  slavery, 
which  had  been  accomplished  by  the  13th  amendment  to  the  Constitution. 

Second:  The  further  terms  were  that  these  former  slaves  should  be  recognized 
as  citizens  of  the  United  States  and  of  Virginia,  and  should  possess  all  the  civil  and 
political  rights  of  freemen,  including  the  right  to  vote.  This  right  of  every  citizen 
to  vote  whether  white  or  black,  was  intended  to  be  secured  and  guaranteed  by  the 
14th  and  15th  amendments  to  the  Constitution  of  the  United  States  and  by  these  amend- 
ments to  be  made  perpetual.  These  terms  were  considered  hard  hy  many  of  our  people, 
especially  by  the  leading  men  and  politicians  of  the  State  but  the'y  were  consented  to 
by  a  large  majority  of  the  white  people  of  Virginia  who  had  fought  and  suffered 
heroically  for  the  dogma  of  secession  and  to  perpetuate  human  slavery,  and  for  the  right 
to  carry  those  slaves  into  free  territory  where  slavery  was  not  wanted  by  the  people 
of  the  territories.  The  question  for  the  Convention  to  determine,  is  not  now  whether 
the  terms  imposed  upon  Virginia  are  hard  or  otherwise,  or  whether  or  not  Congress 
should  have  conferred  the  right  to  vote  on  the  negroes,  but  whether,  under  all  the 
circumstances  that  surround  us,  the  right  of  suffrage  should  now  be  restricted.  The 
present  Constitution  of  Virginia  only  complies  with  the  terms  imposed  by  the  Govern- 
ment of  the  United  States,  by  which  Virginia  could  be  restored  to  the  Union,  by  giving 
all  citizens,  white  or  black,  the  right  to  vote  and  by  making  that  right  perpetual. 

We  have  lived  under  this  Constitution  thirty  years,  and  from  my  view,  the  only 
injury  that  has  resulted  to  our  people  from  the  provision  in  this  Constitution,  giving 
universal  suffrage,  is  the  violation  of  it,  and  not  from  the  Constitution  itself.  It  is 
claimed  now  by  the  Constitutional  Convention,  or  a  large  part  of  it,  that  the  conditions 
and  promises  by  vv^hich  Virginia  was  restored  to  the  Union  should  now  be  disregarded, 
and  most  of  the  negroes  disfranchised.  This,  I  think,  will  be  a  mistake  and  blunder, 
second  only  to  that  committed  by  the  Convention  of  1861,  in  attempting  to  withdraw 
from  the  Union  and  attach  Virginia  to  the  Southern  Confederacy. 

In  the  first  place,  suffrage  should  be  free  to  all  men,  because  it  is  in  accordance 
with  our  system  of  free  government  and  necessary  to  protect  the  citizen  in  his  natural 
and  other  civil  and  political  rights.  That  part  of  the  people  of  Virginia  whether  white 
or  black,  that  you  deprive  of  this  great  right  of  franchise,  and  at  the  same  time  require 
them  to  perform,  military  service,  to  pay  taxes,  to  work  the  public  roads  and  streets, 
to  obey  the  laws  and  perform  all  the  burdensome  duties  of  citizens,  are  slaves,  to  the 
ruling  class,  and  are  in  no  better  condition  than  actual  slaves  with  a  good  master  to 
protect  them. 

In  the  second  place,  to  deprive  negroes  of  the  right  to  vote  will  violate  the 
right  conditions  upon  which  Virginia  was  restored  to  the  Union,  and  be  an  act  of  bad 
faith  towards  the  Government  of  the  United  States.  By  an  act  of  Congress  passed 
January  26,  1870,  reciting  that  Virginia  having  adopted  a  Constitution  republican  in 
form,  and  the  Legislature  elected  under  that  Constitution  having  ratified  the  14th  and 
15th  amendments  to  the  Constitution  of  the  United  States,  Virginia  is  entitled  to 
representation  in  the  Congress  of  the  United  States,  but  upon  the  following  conditions: 


3052 


DEBATES  OF  THE  COXSTITUTIOXAL  CONYe^ttioN"  OF  VIRGINIA. 


'  First,  that  the  Constitution  of  Virginia  shall  never  be  so  amended  or  changed  as 
to  deprive  any  citizen  or  class  of  citizens  of  the  United  States  of  the  right  to  vote  who 
are  entitled  to  vote,  by  the  Constitution  herein  recognized,  except  as  a  punishment  for 
such  crimes  as  .are  now  felonies,  at  common  law  whereof  they  shall  have  been  convicted 
under  laws  equally  applicable  to  all  the  inhabitants  of  said  State." 

The  second  condition  provides  that  the  negro  shall  not  be  deprived  of  the  right  to 
hold  office. 

"  Third,  that  the  Constitution  of  Virginia  shall  never  be  so  amended  or  changed, 
so  as  to  deprive  any  citizen  or  class  of  citizens  of  the  United  States  of  the  school  of 
rights  and  privileges  secured  by  the  Constitution  of  said  State."  See  Code  of  Virginia. 
1873,  page  61. 

These  conditions,  whether  considered  hard  or  otherwise,  were  imposed  by  the 
Federal  Government,  which  had  been  victorious  in  the  fight  then  recently  ended,  and 
which  had  the  power  to  prescribe  them,  and  they  were  consented  to  by  the  people  of 
Virginia  in  various  ways.  First,  by  electing  members  to  Congress  upon  the  prescribed 
terms,  they  were  consented  to  by  the  ratifying  of  the  14th  and  15th  amendments  to  the 
Constitution  of  the  United  States,  and  they  were  consented  to  most  positively  and 
•emphatically  when  the  people  of  Virginia  by  a  vote  of  210,585  to  9,136  ratified  the 
Underv,-ood  Constitution,  which  provided  that  the  right  to  vote  of  all  citizens  should 
be  perpetual.  Of  this  210,585  votes  (conceding  that  the  9,136  were  all  whites)  115,998 
white  citizens  of  Virginia  voted  to  ratify  this  Constitution,  and  thus  consented  to  the 
terms  upon  which  Virginia  was  restored  to  the  Union. 

The  politicians  of  the  present  day  say  that  Virginia  was  forced  to  accept  these 
terms,  but  this  is  disproved  by  the  fact  that  9.136  voters  refused  these  terms  by  their 
votes  against  the  ratification  of  the  Underwood  Constitution.  The  fact  is  that  the 
masses  of  the  people  of  Virginia  accepted  these  terms  gladly  and  willingly  in  order  fo 
:get  back  into  the  Union  from  which  they  had  been  forced  by  the  Convention  of  1861. 
Against  their  will,  they  had  felt  the  pressure  of  military  government  for  nine  or  ten 
years,  during  which  time  they  had  suffered  much,  they  had  been  conscripted  into  the 
army  of  the  Confederate  Government  for  three  years  during  that  time  to  fight  for  the 
right  to  secede  from  the  Union  willing  or  unwilling;  a  right,  according  to  the  teachings 
of  Chief  Justice  Marshall,  and  the  other  most  eminent  jurists  and  statesmen  of  the  country, 
which  found  no  warrant  in  the  Constitution  of  the  United  States,  or  in  the  principles 
upon  which  our  Government  was  founded.  They  were  not  only  compelled  to  fight  by 
this  military  government  without  compensation,  but  to  support  the  Confederate  army. 
One-tenth  of  all  that  was  made  by  the  women  and  negroes  left  at  home  was  required  to 
be  delivered  to  the  agents  of  the  Government,  and  that  government  claimed  and 
exercised  the  right  to  take  their  horses,  mules,  work  oxen  and  negroes,  and  this 
despotism  was  continued  until  nearly  the  entire  personal  property  of  the  South  was 
destroyed.  "S^Hien  the  people  of  Virginia  were  relieved  from  this  incubus,  they  passed 
under  the  military  rule  of  the  Government  of  the  United  States,  which  ,  though,  accord- 
ing to  my  view,  was  much  milder  than  that  of  the  Confederacy,  was  still  vexatious  and 
annoying.  This  115,978  white  voters  of  Virginia,  most  of  whom  were  Confederate 
veterans,  and  had  fought  in  the  ranks,  were  anxious  and  willing,  though  probably 
opposed  to  negro  suffrage,  to  return  to  the  Union,  and  voted  cheerfully  and  in  good 
faith,  to  accept  the  terms  proposed,  when  the  only  part  of  these  terms  to  which  they 
could  object,  was  that  making  the  negro  a  citizen,  with  equal  civil  and  political  rights. 
These  Virginians,  were  anxious  to  get  back  into  the  Union,  where  they  had  enjoyed  the 
largest  liberty  before  the  days  of  secession. 

For  the  Constitutional  Convention  of  Virginia,  at  this  late  day,  many  of  whose 
members  never  fought  in  the  Civil  War  or  felt  the  hardships  resulting  from  the  folly 
of  secession,  to  disregard  the  promises  and  acts  of  115,978  white  Virginians,  would  not 
only  be  an  act  of  bad  faith  towards  the  Government  of  the  United  States,  but  would 
impute  hypocrisy  and  bad  faith  in  those  who  consented  to  the  terms. 

There  is  anotheT-  and  most  potent  reason  why  your  Convention  should  not  restrict 
the  right  of  suffrage.  The  14th  amendment  of  the  Constitution  of  the  United  States 
amongst  other  things  provides:  "Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State,  excluding  Indians  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and  Vice-President  of 
the  United  States,  Representatives  in  Congress,  the  Executive  and  Judicial 
Officers  of  a  State  or  the  members  of  the  Legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion  or  other 
crimes;  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion  which 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State  "  and  "  that  the  Congress  shall  have  power  by  appropriate  legislation 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 


3053 


to  enforce  this  article."  This  is  a  plain  provision  of  the  Constitution  of  the  United 
States,  and  if  Virginia  deprives  any  portion  of  her  citizens,  white  or  black,  of  the  right 
to  vote,  her  representation  in  the  House  of  Representatives  will  by  this  article  in  the 
Constitution  be  reduced  to  that  extent.  If  she  takes  from  one-third  of  her  citizens 
the  right  to  vote  her  representation  will  be  reduced  one-third,  and  instead  of  having  ten 
representatives  in  the  Lower  House  of  Congress,  we  v/ill  only  have  six  or  seven.  It 
may  be  claimed  that  this  14th  amendment  would  not  be  enforced  by  Congress,  and  it 
may  not  for  a  time,  but  it  would  be  a  menace  constantly  hanging  over  us,  which  might 
be  made  effective  at  any  time.  It  is  true  that  Massachusetts  and  one  or  tv/o  other 
States  may  have  an  educational  restriction  on  suffrage,  but  these  exclude  so  few  voters 
that  probably  these  States  would  not  lose  a  member  by  enforcing  the  14th  amendment. 
South  Carolina,  North  Carolina,  Alabama,  Mississippi  and  Louisiana  have  deprived 
large  portions  of  their  citizens  of  the  right  to  vote,  and  if  Virginia  follows  their 
example  it  is  not  to  be  expected  that  the  other  States  who  have  no  restriction  on  the 
right  of  suffrage  would  remain  quiet  and  permit  these  States  to  have  fifteen  or  twenty 
more  representatives  in  Congress  than  they  are  entitled  to  under  the  Constitution. 

The  discussion  of  this  matter  in  Congress  would  necessarily  revive  sectional  feel- 
ings and  animosities,  which  it  is  to  our  interest  to  avoid.  We  could  not  reasonably 
expect  the  people  of  the  United  States  to  quietly  remain  satisfied,  that  a  voter  living  in 
the  States  named  should  have  more  weight  in  the  Congress  of  the  United  States  than 
in  other  parts  of  the  Union.  And  if  the  principle  of  basing  representation  upon  popula- 
tion is  carried  out,  whilst  a  large  part  of  the  population  is  excluded  from  any  vofce 
in  the  government,  it  will  produce  injustice  amongst  our  own  people.  If  the  negroes 
are  deprived  of  the  right  to  vote,  the  white  voters  in  a  county  half  white  and  half 
•  black,  would  have  double  the  representation  in  the  House  of  Representatives  of  the 
United  States  and  double  the  representation  in  the  Legislature  of  Virginia,  that  the 
voters  living  in  a  county  all  white  would  have.    This  is  unjust. 

A  further  and  fourth  reason  why  the  Constitution  which  the  Convention  may 
adopt  should  not  deprive  the  negro  of  the  right  to  vote,  is  that  it  would  be  a  plain  and 
palpable  violation  of  the  Constitution  of  the  United  States.  The  15th  amendment  of 
that  instrument  provides  plainly:  "1.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude." 

2.  "  The  Congress  shall  have  power  to  enforce  this  article  by  appropriate  legisla- 
tion." 

This  language  is  plain  and  cannot  be  misunderstood  by  any  sensible  man.  You 
cannot  deprive  the  negro  of  the  right  to  vote  because  he  is  a  negro,  however  unfit  he 
may  be  to  vote.  You  cannot  do  it  directly,  and  vfhat  you  cannot  do  directly,  you  can- 
not honestly  do  by  indirection,  and  if  you  could  it  would  be  unmanly  and  unbecoming 
any  honest  Virginian  to  resort  to  such  a  subterfuge.  If  you  adopt  a  property  qualifica- 
tion and  then  except  from  that  qualification  all  who  fought  in  any  war,  in  order  to  let 
in  a  large  number  of  whites  and  to  exclude  negroes  who  had  no  chance  to  fight  in  the 
Civil  War  on  either  side,  you  violate  this  15th  amendment.  If  you  adopt  an  educational 
qualifi.cation  and  except  all  who  had  a  vote  fn  1861  or  before  that  time  or  whose  ances- 
tors had  such  vote,  it  is  as  plainly  a  violation  of  this  15th  amendment  as  if  you  pro- 
vided that  all  illiterate  white  men  should  vote,  and  no  illiterate  negro  should  have  that 
right.  And  so  with  any  subterfuge  you  may  adopt  to  exclude  the  negro  and  let  in  the 
white  man.  In  construing  your  Constitution,  if  it  should  ever  come  before  the  courts, 
the  court  will  look  to  the  intention  of  the  Convention  in  enacting  the  article  in  question. 
It  is  one  of  the  s.ettled  rules  of  the  courts  in  construing  any  law  to  consider  the  inten- 
tion of  the  law-makers,  and  the  leading  men  of  your  Convention,  and  the  leading  men 
of  the  Democratic  party  in  Virginia  have  proclaimed  that  the  object  of  any  restriction 
of  the  right  of  suffrage  by  the  Convention  will  be  to  disfranchise  the  negro,  without 
depriving  any  white  man  of  the  right  to  vote.  It  will  be  easy,  therefore,  for  any  court 
before  which  the  constitutionality  of  your  suffrage  article  may  come,  to  see  its  inten- 
tion, and  to  brush  aside  the  flimsy  and  hypocritical  exceptions  designed  to  exclude  the 
negro  from  the  polls,  and  let  in  the  white  man.  Your  suffrage  article,  giving  all  white 
men  the  right  to  vote,  and  depriving  the  great  body  of  the  negroes  of  that  right,  v,^ill 
be  absolutely  void,  because  in  violation  of  the  Constitution  of  the  United  States,  and 
will  be  so  declared  by  any  honest  and  intelligent  court  before  which  it  is  adjudicated. 
Every  member  of  your  Convention  has  at  some  time  taken  an  oath  to  support  the  Con- 
stitution of  the  United  States,  and  I  think  they  should  hesitate  long  before  violating 
that  oath.    Hence  I  think  results  the  great  delay  in  agreeing  to  a  suffrage  clause. 

Yours  truly, 

GEORGE  D.  GRAVELY. 


3054  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


The  government  of  Virginia,  as  at  present  constituted,  is  a  government  of  lawyers. 
I  think  I  can  trace  back  through  more  than  a  century  of  our  history  the  causes  that 
have  led  up  to  our  present  degradation.  They  can  all  be  summ_ed  up  in  one  word — 
Slavery!  For  the  first  thirty  or  forty  years  of  our  independence  Virginia  stood  at  the 
very  head  of  the  States  of  the  nation.  In  territory,  in  population,  in  agricultural  and 
mineral  resources  and  commercial  facilities  she  greatly  surpassed  any  of  her  sisters 
of  the  immortal  thirteen.  Her  leading  statesmen  were  also  the  leading  statesmen 
of  the  nation,  and  they  all  looked  upon  sla,very  as  an  evil  which  we  had  inherited  and 
must  get  rid  of  as  soon  as  possible.  No  one  of  them  thought  of  making  it  perpetual. 
As  late  as  1850  the  Legislature  was  evenly  divided  on  a  proposition  to  abolish  it.  It 
was  then  that  the  reaction  set  in  in  favor  of  making  slavery  permanent.  The  perfec- 
tion of  the  cotton  gin  and  the  settlement  of  the  new  cotton  States  opened  up  a  great 
market  for  Virginia  negroes.  Then  our  people  found  out  that  we  could  make  more 
money  raising  negroes  for  market  than  anything  else.  It  was  then  that  Virginia  had 
her  fall.  It  was  then  that  we  forgot  the  grand  lessons  that  Patrick  Henry,  George 
Mason,  Thomas  Jefferson,  and  George  Washington  had  taught.  It  was  then  that  our 
conscience  became  paralyzed  and  torpid,  and  while  they  were  in  that  condition  our 
free  thoughts  were  trampled  upon  and  suppressed.  Unjust  and  despotic  laws  were 
enacted  in  the  interests  of  slavery.  Our  enterprising,  intelligent  young  men  were 
driven  into  exile  and  Virginia  started  on  that  downward  course  that  led  to  the  final 
collapse  in  18G5. 

Carlyle,  starting  to  write  about  the  Slavonians,  exclaims:  "  Slave,  meaning  a  cap- 
tured Slavonian,  what  a  long-drawn  echo  of  bitter  hate  and  rage  lies  in  that  simple 
etymology!" 

Macaulay,  writing  about  slavery  in  America,  says:  "Most  of  the  honorable  and 
intelligent  men  have  stood  aloof  in  prudence  or  disgust  from  the  contest.  In  their 
absence  the  warfare  has  been  carried  on  by  a  race  of  scribblers,  who  like  the  mercenary 
Mohawks  so  often  our  auxiliaries  in  transatlantic  campaigns,  unite  the  indifference  of 
the  hireling  to  the  ferocity  of  the  cannibal,  who  takes  aim  from  ambush  and  desire  vic- 
tory only  that  they  may  have  the  pleasure  of  scalping  and  torturing  the  vanquished. 
The  only  requisite  for  those  who  desire  to  enlist  in  the  cause  are  a  front  of  brass  and  a 
tongue  of  venom.  But  it  is  neither  on  facts  nor  on  arguments  that  slavery  now  depends, 
for  protection.  It  neither  doubles  nor  stands  at  bay.  It  has  neither  the  ingenuity  of 
the  hare  nor  the  intrepidity  of  the  lion.  It  simply  defends  itself  like  the  hunted  pole- 
cat by  the  loathsomeness  with  which  it  taints  the  atmosphere  around  it,  and  hope  to 
disgust  those  it  can  neither  wrong  nor  subdue." 

Such  were  the  defences  of  slavery  for  the  last  thirty  years  of  its  existence  in  Vir- 
ginia. Indeed  some  of  the  rudiments  of  that  defence  are  still  to  be  seen  in  the  gallant 
but  hopeless  fight  the  rear  guard  is  still  making  for  the  reputation  of  the  lost  cause. 
We  have  all  been  made  familiar  with  the  joys  seen  and  felt  around  the  slave-cabin 
doors.  We  have  all  heard  the  testimony  of  the  old  black  mammy,  who,  after  nursing 
and  suckling  two  or  more  generations  of  white  babies,  has  been  dragged  around  for 
thirty  years  as  a  witness  to  prove  what  nobody  has  ever  denied,  that  there  existed 
kindly  relations  between  the  slave  ov/ners  and  the  slaves.  It  is  now  time  this  old 
woman  was  set  free.  There  are  thousands  of  other  witnesses,  scattered  all  over  the 
State,  who  will  hereafter  be  put  upon  the  stand  and  examined.  They  are  witnesses  that 
will  never  die,  lie  or  forget.  They  are  the  old  Code  of  Virginia  laws,  the  acts  and 
resolutions  of  the  Legislatures,  the  records  in  each  of  the  counties  of  the  State,  the 
files  of  the  newspapers  of  the  age,  and  thousands  of  other  musty  documents  that  will 
be  brought  to  light  by  scholars  and  lovers  of  truth,  who  will  rise  up  among  us.  And 
these  witnesses  will  all  testify  with  one  voice  that  slavery  as  it  existed  in  Virginia  was 
unchristian,  barbarous  and  cruel  in  the  extreme. 

Nothing  we  can  possibly  write  in  our  local  literature,  our  school-books,  or  our 
local  histories,  will  have  the  slightest  weight  where  they  come  in  contact  with  this 
irresistible  array  of  testimony. 


DEBATES  OF  THE  CONSTITUTIONAL  COXVEXTIOX  OF  VIRGINIA. 


3055 


It  looks  to  me  as  if  the  best  thing  for  us  to  do  is  to  give  up  this  hopeless  con- 
troversy. All  of  the  old  States  have  been  at  some  time  defiled  with,  the  same  pitch. 
It  was  only  for  the  brief  period  of  thirty-five  years  that  slavery  in  its  worst  form 
existed  here.  Massachusetts  and  Connecticut  tried,  convicted  and  burned  old  women 
for  being  witches  for  a  much  longer  period.  If  we  can  now  give  up  our  prejudices  and 
hatreds  of  the  negro  race,  it  will  take  only  a  few  years  to  put  our  prosperity  on  firm 
ground. 

But  some  of  you  say,  and  strange  as  it  appears  to  me,  seem  actually  to  believe, 
that  the  Democratic  party  v/ill  gain  by  disfranchising  the  great  majority  of  the  negroes, 
and  a  large  block  of  the  humblest  of  the  white  men.  And  this  in  view  of  the  well-known 
facts  that  wherever  illiteracy  is  most  prevalent  the  Democratic  party  is  strongest. 
Wherever  there  are  most  negroes  the  Democratic  party  gets  its  heaviest  majorities. 
Every  Congressional  district  in  this  nation  in  which  the  negroes  have  a  majority  is  and 
has  been,  for  the  last  ten  years,  represented  in  Congress  by  a  Democrat.  Where  the 
people  are  all  white,  and  most  of  them  educated  and  intelligent,  the  Democratic  party 
has  nearly  ceased  to  exist.  Every  single  issue  the  Democratic  party  has  raised  and 
advocated  for  the  last  fifty  years  has  been  settled  by  the  American  people.  They  have 
all  been  settled  right  and  they  have  all  been  settled  against  the  contention  of  the 
Democratic  party. 

In  Virginia,  at  least,  they  now  have  a  platform  for  the  first  time  in  fifty  years  that 
is  entirely  harmless.  It  can  be  carried  out  without  any  serious  detriment  to  the  State. 
Truly  it  is  rather  a  narrow  platform,  but  v»ade  enough  for  the  party.  They  look  well 
upon  it.    I  hope  they  will  stick  to  it. 

This  is  their  platform:  "  Anti-Roosevelt-Booker-Was<hington  dinner."  On  that 
platform  they  are  huddled  like  a  parcel  of  ants  on  a  floating  ship  in  time  of  high  water. 
They  don't  seem  to  know  or  care  which  way  they  are  drifting.  Some  have  argued, 
and  I  am  inclined  to  think  that  a  few  (I  hope  only  a  fevv')  actually  believe  that  an 
undue  portion  of  the  burdens  of  Virginia  are  borne  by  the  white  property-holders  of  the 
State.  They  have  flourished  a  table  prepared  by  the  Auditor  to  justify  their  contention. 
It  is  misleading  and  unreliable.  All  taxes  are  a  charge  on  productive  labor.  It  is  the 
men  who  produce  wealth  v/ho  pay  the  taxes.  The  man  with  the  hoe;  the  men  with 
picks  and  shovels;  the  men  with  hammers  and  tongs.  The  men  who  hanclle  the  tools 
of  productive  industry  have  to  pay  all  taxes.  And  in  Virginia  the  negro  pays  his  full 
share.  The  vvorking-men  produce  the  tobacco.  It  is  sent  to  market  and  sold.  The 
tax  on  the  warehouse  where  it  is  sold  is  first  taken  out,  the  tax  on  the  bank  that 
handles  the  money  is  also  taken  out,  and  the  tax  on  the  railroad  that  hauls  it  is  also 
taken  out,  and  then  the  tax  on  the  land  on  which  it  was  produced.  And  what  is  left, 
if  an3^thing,  is  divided  between  the  grower  and  the  land-owner  according  to  their  con- 
tract. The  same  thing  is  done  in  all  cases,  whether  the  production  be  coal,  or  lumber, 
or  farm  products,  or  manufactured  goods.  All  tax  accounts  have  to  be  pafd  before  the 
producer  gets  anything. 

Then  the  producer  pays  his  poll-tax  if  he  has  anything  to  pay  with,  if  he  is  not 
so  completely  exhausted  by  paying  everybody  else's  taxes  but  his  own,  which  you  law- 
yers and  lawgivers  propose  to  increase  to  such  an  extent  as  to  render  it  impossible 
for  many  of  them  to  pay  it.  You  propose  to  "  plunder,  profane,  disfranchise  and  disin- 
herit him."  I  have  frequently  heard  sneering  remarks  on  this  floor  about  some  of  the 
western  counties  drawing  out  of  the  treasurj^  more  than  they  pay  in.  These  counties 
produce  wealth  but  do  not  retain  and  accumulate  it.  From  their  fields  and  meadows 
the  people  are  fed;  from  their  mines  and  forests  and  furnaces,  foundries  and  other 
iron  works  get  their  raw  material,  and  the  railroads  get  their  employment  and  incomes. 

Let  them  stop  vv'ork  for  just  one  year,  and  see  what  would  happen  in  the  east. 
Your  ability  to  pay  taxes  would  soon  come  to  an  end.  Industry  can  continue  to  live 
without  wealth.  It  would  suffer  but  slight  and  temporary  inconvenience  by  the  loss  of 
v\^ealth,  but  wealth  would  soon  starve  and  die  without  industry. 


3056 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Few  of  us  realize  the  fact  that,  notwithstanding  the  abundance  that  surrounds  us 
now,  and  notwithstanding  the  splendid  prosperity  we  are  now  enjoying,  only  one  year — 
twelve  short  months — lie  between  us  and  starvation,  between  our  business  prosperity 
and  bankruptcy,  panic  and  ruin.  As  our  protection  from  these  terrible  calamities,  we 
can  only  depend  upon  the  great  army  of  toilers,,  which  is  made  up  of  white  men  and 
negroes  in  the  proportion  of  two  whites  to  one  negro.  They  are  all  now  contented, 
or  reasonably  so.  If  they  are  not  disturbed  they  will  continue  to  cultivate  the  fields, 
to  work  the  mines,  to  operate  the  railroads,  to  perform  all  of  the  various  labors  that 
is  absolutely  necessary  to  continue  our  prosperity. 

But  if  we  enter  upon  a  line  of  policy  that  they  will  be  sure  to  look  upon  as  wrong 
and  unjust,  they  will  at  once  become  discontented.  To  take  from  them  their  right  to 
vote  will  be  regarded  as  the  greatest  wrong  and  insult  we  can  inflict. 

By  that  course  we  hazard  much;  we  can  gain  nothing. 

Any  sort  of  a  poll-tax  is  unjust.  All  taxes  should  be  levied  on  property  and  on 
an  ad  valorem  basis.  All  departures  from  this  rule  should  be  as  few  and  small  as 
possible.  A  light  poll-tax,  just  enough  to  constitute  each  man  a  stock-holder  in  the 
Commonwealth,  but  not  enough  to  burden  him,  would  be  unobjectionable,  and  its  pre- 
payment as  a  condition  precedent  to  voting  would  be  reasonable  enough  if  it  can  be 
kept  clear  of  fraud,  but  making  it  payable  by  him  in  person  and  six  months  before  the 
election  is  an  open  door  to  fraud. 

We  cannot  afford  to  make  Virginia  a  worse  place  for  workers  to  live  in  than  it  is 
now.  You  will  drive  them  out.  We  will  be  going  back  to  the  suicidal  policy  that  drove 
out  so  many  of  our  young  men  in  times  past  and  built  up  s,o  largely  at  our  expense  the 
great  Northwestern  States.  To  take  away  from  our  working  people  their  right  to  vote 
would  be  both  an  outrage  and  an  insult.  A  still  grosser  insult  would  be  the  military 
clause,  the  granddaddy  clause,  the  understanding  clause,  and  all  the  other  subterfuges. 
It  would  be  saying  to  the  illterate  "  Whilst  you  are  not  fit  to  vote,  you  are  not  worthy 
to  be  intrusted  v/ith  the  rights  of  free-men."  Y\^e  can  do  without  any  class  of  our 
people  better  than  without  our  working  people.  It  would  do  the  State  far  less  harm  to 
lose  every  lawyer  and  politician  in  it  than  to  lose  a  like  number  of  our  working  people. 
We  could  easily  make  more  lavv^ers,  and  as  to  politicians,  they  just  come,  but  it  takes 
God  to  make  workers.  It  is  no  injustice  to  this  Convention  to  call  it  a  gathering  of 
lawyers.  They  have  been  for  nearly  ten  months  following  their  old  trade  of  trying  to 
find  a  way  around  the  law  that  gives  to  all  the  men  of  the  State  equal  rights.  The 
laws  they  are  trying  to  get  around  are  the  Ten  Commandments,  the  Sermon  on  the 
Mount,  the  Declaration  of  Independence,  the  Virginia  Bill  of  Rights,  and  the  Consti- 
tution of  the  United  States.  Ail  of  these  have  been,  as  a  general  rule,  considered  to  be  in 
full  force.  And  yet  this  article  on  suffrage  repeals  or  violates  them  all.  It  greatly 
increases,  the  burdens  of  the  people  and  takes  from  them  their  rights.  All  of  the  pro- 
posed subterfuges  savor  of  the  old  original  patent  of  selling  a  gingercake  for  a  nickel, 
and  giving  the  whiskey. 

The  people,  or  some  of  them,  were  cajoled  into  voting  for  tliis  Convention  by  the 
promise  that  some  of  their  burdens  should  be  taken  off.  What  is  the  result?  Is  it  not 
true  that  from  very  first  day  of  our  assembling  down  to  the  present  time  the  real 
question  has  been  how  to  raise  money  enough  to  give  easement  to  the  so-called  best 
people  of  the  State,  without  killing  the  goose  that  lays  the  golden  eggs,  or  breaking 
the  camel's  back  with  added  burdens.  The  arts  that  have  been  resorted  to  cannot  be 
too  much  admired.  The  simple  plan  of  taking  th'e  election  of  the  Commissioners  of  the 
Revenue  out  of  the  hands  of  the  people  and  having  them  appointed  will  give  support  to 
not  less  than  one  hundred  of  the  very  best  people  who  could  not  be  elected.  Even  the 
office  of  Justice  of  the  Peace  if  appointed  by  the  judges  would  soon  grow  into  a  lucra- 
tive office.  They  would  argue  that  he  should  be  a  lawyer,  and  his  salary  should  be 
sufficient  to  induce  the  best  men  to  accept  it,  which  would  be  a  little  more  than  the 
weakest  lawyer  could  make  at  the  practice.    Consider  it  as  you  may,  there  is  a  broad 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOis^  OF  VIRGINIA. 


3U5r 


and  rapidly  widening  gulf  between  the  governing  class,  the  self-styled  "best"  people, 
and  the  great  mass  of  the  people  of  the  State.  The  "best"  people  are  trying  to  take  the 
government  out  of  the  hands  of  the  common  people  and  to  organize  a  highly-paid 
governing  aristocracy. 

Christ  Himself  once  exclaimed,  "  Woe  unto  you  lawyers,  for  you  lade  the  people 
with  burdens  grievous  to  be  borne,  yet  you  yourselves  touch  not  the  burdens  with  one 
of  your  fingers." 

Woe  unto  you,  lawyers,  for  you  have  taken  the  key  to  knowledge.  You  enter  not 
in  yourselves,^  but  them  that  would  enter  you  hinder. 

What  have  you  done  for  Virginia?  Our  ballot-boxes  are  surrounded  by  an  atmos- 
phere as  foul  and  loathsome  as  that  which  surrounds  a  den  of  wild  beasts,  and  yet  you 
wonder  that  a  majority  of  the  white  people  of  the  State  stay  away  from  the  elections. 
You  have  been  for  ten  months  working  on  a  Constitution,  and  now  you  propose  to 
begin  operations  under  it  by  violating  it  in  its  most  vital  part;  and,  what  is  still  worse, 
you  propose  to  deceive  the  people  as  to  its  real  meaning,  and  make  them  agree  to  their 
own  degradation. 

The  only  way  the  people  have  ever  had  to  express  their  opinions  and  to  assert  their 
rights  has  been  taken  from  them. 

But  they  will  find  a  way,  "  There  never  yet  w^as  a  human  power  that  could  evade, 
if  unforgiven,  the  patient  watch  and  vigil  long  of  him  who  treasures  up  a  wrong." 
How  or  when  it  will  come  I  confess  that  I  cannot  foresee.  That  it  will  come,  and  at 
no  distant  day,  I  doubt  not. 

Some  time  in  my  life  I  saw  a  rather  scurrilous  picture  entitled  "  Where  w^as  Moses 
when  the  light  went  out?"  Moses  was  represented  in  an  Egj^tian  vault  wath  his  hand 
in  a  box  of  costly  jewels  w^hich  he  yvslS  transferring  to  a  sack  carried  around  his  neck. 
This  scene  was  laid  in  Egypt  just  before  the  departure  of  the  Israelites.  I  have  seen 
several  tMngs  here  to  remind  me  of  that  picture,  notably  the  $50,000  annual  appropria- 
tion to  the  University  through  all  time,  though  all  the  common  schools  were  left  to 
perish.  The  transfer  of  the  free  schools  to  the  colleges  is  an  arrangement  not  more 
healthy  for  the  schools,  than  to  commit  a  family  of  young  rabbits  to  the  guardianship 
of  a  cat  would  be  for  the  rabbits.  In  both  cases  the  wards  will  be  sure  to  be  found  on 
the  inside  of  the  guardian  as  soon  as  hunger  suggests  it.  I  think  I  can  say  with  as 
much  candor  and  sincerity  as  the  gentleman  from  Page  or  the  gentleman  from  Bruns- 
wick have  repeatedly  said  that  they  have  nothing  against  the  negroes.  I  have  nothing* 
against  the  University;  I  do  not  want  to  see  it  injured,  w^ronged,  or  in  any  way 
maltreated.  But  I  do  v/ant  to  see  it  go  oui  of  the  governing  business.  I  w^ant  to  see 
a  fairly  good  common  school  kept  up  for  at  least  five  months  in  every  year  in  reach  of 
every  child  in  the  State,  and  enough  good  normal  schools  to  furnish  competent  teachers 
for  them  all. 

I  am  willing  to  do  what  we  can  for  the  colleges,  but  I  would  let  the  University 
take  w^hat  its  friends  so  contemptously  call  pot-luck  with  the  other  colleges.  I  would 
right  now  give  them  a  quit-claim  deed  to  all  the  property  that  the  State  has  there  and  pay 
every  bond  v/e  have  ever  promised  to  pay  them,  even  though  w^e  have  to  borrow  the 
money.  And  then  I  would  consider  that  w^e  were  even  with  them.  If  under  these  con- 
ditions the  University  could  not  live,  it  ought  to  die,  and  the  great  law  of  the  survival 
of  the  fittest  should  take  its  course. 

Yv^'hen  this  Convention  first  assembled  we  did  little  else  for  the  first  few  weeks  but 
to  pose  to  the  nev/spapers  for  our  pictures.  We  w^ere  vain  enough  to  be  proud  when  we 
were  pronounced  a  good-looking,  well-dressed  and  apparently  intelligent  body  of  men. 
We  committed  the  folly  of  providing  that  every  word  uttered  by  any  of  us,  wise  or 
foolish,  should  be  preserved  in  cold  type  for  the  edification  of  generations  yet  unborn. 
I  think  I  can  now  see  way  down  in  the  bottom  corner  of  the  hearts  of  many  of  us  a 
hope  that  after  all  oblivion  will  kindly  come  and  cover  us  up  with  her  mantle  and  save 
us  from  becoming  the  jest  of  the  schoolboys  of  the  future.    There  is  now  no  longer 


3058  DEBATES  OF  THE  COXSTITUTIOI^AL  COXVENTIOX  OF  VIRGINIA. 

much  doubt  about  the  verdict  in  our  case.  We  have  been  weighed  in  the  balance  and 
found  wanting.    I  hope,  but  do  not  expect,  this  substitute  will  be  adopted. 

I  know  that  if  we  adopt  this  thing,  our  mission  here  has  been  a  hopeless  failure. 
We  will  either  end  in  nothing  or  we  will  end  in  the  beginning  of  a  party  strife  that 
will  never  end  until  we  get  back  to  the  conditions  of  free  republican  government,  for 
if  we  do  not  have,  in  America,  a  republican  government,  we  have  no  government  at  all. 
Everything  else  is  wrong.  If  the  people  of  this  country  cannot,  with  universal  man- 
hood suffrage,  preserve  order  and  defend  themselves,  we  have  got  to  go  through  the 
ordeal  of  revolution.  Military  despotism  is  to  take  the  place  of  a  failure  to  govern 
ourselves  as  a  free  democratic  government. 

I  thank  you,  gentlemen,  for  the  patient  attention  you  have  given  me,  and  I  will 
say  to  you  that  out  of  deference  to  that  attention  I  have  thrown  away  more  than  half 
of  my  speech,  in  order  that  you  might  not  be  kept  here  too  long  listening  to  what  I  had 
to  say. 

Mr.  Davis:  Mr.  President  and  gentlemen  of  the  Convention,  I  did  not  intend 
to  speak  this  morning;  in  fact  I  had  not  intended  to  speak  at  all;  but 
Mr.  Gillespie  and  Colonel  Summers,  who  intended  to  speak  on  this  sub- 
ject on  behalf  of  the  minority,  are  both  away.  I  do  not  feel  that  I 
would  be  doing  my  whole  duty  if  I  should  go  back  to  my  constitutents  without  register- 
ing my  earnest  protest  against  the  adoption  of  this  suffrage  plan  in  the  Constitution 
of  this  State.  I  am  not  here,  gentlemen  of  the  Convention,  to  criticise  your  work 
because  you  may  happen  to  differ  from  me  politically.  I  was  elected  to  this  Convention 
largely  by  the  votes  of  men  belonging  to  your  party.  I  am  here  opposing  this  suffrage 
plan  to  be  adopted  by  this  Convention,  and  in  so  doing  I  feel  that  I  voice  largely  the 
sentiments  of  the  people  of  my  county,  regardless  of  politics  and  regardless  of  race. 

I  do  not  fully  concur  in  or  endorse  the  suffrage  plan  presented  by  the  gentleman 
from  Tazewell  (Mr.  Gillespie).  If  there  were  any  hope  of  its  passing  I  would  move 
to  amend  some  of  the  sections  of  it,  especially  the  section  providing  for  an  educational 
qualification  for  the  future  voters.  But  there  is  no  hope  of  its  passing;  and  as  that  is 
a  foregone  conclusion  I  will  not  take  up  the  time  of  the  Convention  in  offering  useless 
amendments  to  this  minority  report  submitted  by  my  colleague  (Mr.  Gillespie). 

The  plan  adopted  by  the  Democratic  conference,  and  adopted,  section  by  section, 
by  this  Convention,  is  obnoxious  to  me  in  its  main  provisions  and  in  details.  My  prin- 
cipal objection  to  the  plan  proposed  here  is  the  temporary  understanding  clause.  The 
gentleman  from  Roanoke  city,  Judge  Robertson,  a  day  or  two  ago,  on  the  floor  of  this 
Convention,  spoke  my  sentiments  on  that  question  so  thoroughly  that  I  do  not  care 
now  to  take  up  much  time  in  the  discussion  of  that  subject.  I  only  desire  to  endorse 
the  sentiments  he  then  expressed. 

There  is  not  a  member  of  this  Convention  that  will  seriously  contend  that  this 
understanding  clause  was  put  into  the  Constitution  for  any  other  purpose  than  that  it 
should  not  be  administered  fairly  and  squarely.  If  it  is  to  be  administered  fairly  then 
there  is  no  reason  for  it. 

It  can  do  no  good.  It  would  shut  out  white  voters  as  well  as  negro  voters.  I  want 
to  say  here,  while  I  think  of  it,  that  in  my  contention  for  manhood  suffrage,  I  do  not 
speak  from  selfish  motives.  I  represent  a  white  constituency,  and  I  was  sent  to  this 
convention  by  more  white  intelligent  votes  than  the  gentleman  from  Louisa,  who  so 
bitterly  denounced  the  Republican  party  of  this  State,  in  general  terms,  on  yesterday. 
The  people  I  represent  do  not  want  a  restriction  of  suffrage.  The  white  sections  of 
this  State  want  honest  and  fair  elections.  Outside  of  a  poll  tax  as  a  prerequisite  for 
voting,  honestly  and  fairly  administered,  they  do  not  want  any  restriction  of  suffrage. 
For  my  part,  I  do  not  seriously  object  to  a  poll  tax  as  a  prerequisite  to  voting,  so  that 
it  is  not  cumulative;  and  to  be  paid  a  reasonable  time  before  the  election  and  arranged 
so  that  the  voters  may  have  a  fair  chance  and  fair  opportunity,  and  that  no  advantage 
may  be  taken  of  him.    The  principle  of  taxation  of  the  people,  without  allowing  them 


DEBATES  or  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


3059 


the  right  to  vote,  is  no  less  tyranny  now  than  it  was  in  the  days  of  1776.  Your  pro- 
vision says  that  a  man  shall  pay  his  taxes,  and  not  only  that,  but  that  He  shall  pay  his 
taxes  for  three  years  prior  to  1904,  before  he  shall  be  allowed  the  right  to  vote. 

But  you  do  not  say  here  that  when  a  man  pays  this  poll  tax,  which  is  assessed 
against  him,  that  he  shall  have  the  right  to  vote.  You  say  further  that  he  must  have 
sufficient  education  to  answer  any  and  all  questions,  pertinent  and  impertinent,  which 
the  officers  of  election  may  propound  to  him;  and  that  after  1904  he  must  prepare  his 
own  ballot.  There  [exhibiting  a  paper  to  the  Convention]  is  the  ballot  that  has  been 
exhibited  before  in  this  hall,  which  not  a  single  member  of  this  Convention  could  pre- 
pare in  twenty  minutes  if  he  had  never  seen  it  before  and  did  not  know  what  it  con- 
tained.   That  is  a  ballot  which  has  been  used  in  this  State  in  a  recent  election. 

Mr.  ^vleredith:    In  a  state  or  national  election? 

Mr.  Davis:    In  a  national  election  in  the  county  of  Scott. 

The  subject  of  honest  elections  in  this  State  is  one  of  vast  importance.  Some 
one  of  my  colleagues  spoke  a  day  or  so  ago  what  was  being  done  in  Washington. 
You  can  go  to  your  capital  city,  and  when  Virginia  politics  is  mentioned,  the  corrupt 
election  practices  which  prevail  and  have  prevailed  and  predominated  in  this  State  for 
years  is  the  first  thing  that  is  mentioned.  It  is  thrown  up  as  a  reproach  to  Virginians 
in  every  State  and  every  Territory  in  the  Union.  You  say  you  must  purify  the  elec- 
torate. Why.  In  order  to  get  rid  of  the  negro  vote.  There  is  not  a  member  upon  this 
floor  but  would  cast  his  vote  as  quickly  for  a  negro  to  hold  office  in  this  State  as  I  would, 
the  gentleman  from  Louisa  not  excepted.  But,  hear  me,  gentlemen  of  the  Convention — 
hear  the  truth.  'Move  negroes,  in  my  humble  opinion,  haA'e  been  put  up  to  run  for  office 
in  this  State  by  designing  and  scheming  Democratic  politicians  than  have  been 
influenced  by  Republican  politicians. 

I  was  gratified  yesterday  when  the  Convention  voted,  by  a  bare  majority,  to  give 
representation,  b}'  the  appointment  of  one  member  on  the  Electoral  Board,  to  the  oppo- 
site party,  or  in  effect  to  the  Republican  party.  I  must  say  that  I  appreciate  greatly 
and  have  the  greatest  admiration  for  the  members  of  this  Convention  who  stood  up 
on  this  floor  and  advocated  giving  our  party  representation  on  this  board,  and  who  so 
cast  their  vote  in  the  Convention.  But  no  sooner  was  that  vote  cast  than  the  politicians 
in  this  city  and  in  this  Convention  went  to  work  to  undo  what  had  been  done.  And 
why?  Not  tDecause,  as  the  gentleman  from  Lancaster  would  have  the  Convention 
believe,  that  the  Electoral  Board  had  nothing  to  do  with  the  corrupt  practices  in  elec- 
tion. Every  politician  in  this  State,  Democratic  or  Republican,  knows  that  the  Elec- 
toral Board  is  the  fountain-head  of  fraud  not  only  in  this  State,  but  in  every  other 
State  in  this  Union.  I  was  very  much  amused  at  the  course  of  the  gentleman  from 
Rockingham,  who  made  a  long  speech  against  giving  the  Republicans  one  member  of 
this  board,  and  then  turned  around  and  said,  after  awhile,  he  wanted  'pure  and  honest 
elections,  and  wanted  to  give  the  Republican  representation  as  to  the  clerks  of  elec- 
tion— that  is,  to  have  one  Democratic  and  one  Republican  clerk.  He  corrupted  the 
fountain-head,  and  then  went  down  the  stream  and  attempted  to.  pull  out  a  little  of  the 
filth  that  he  purposely  put  in  at  the  fountain.  If  this  scheme,  which  I  am  opposed  to, 
does  what  jou  say  it  v/ill  do,  if  it  will  purify  elections  in  this  State,  if  there  is  no 
longer  any  need  to  restrict  negro  suffrage  on  account  of  keeping  the  negro  out  of  office, 
if  it  is  now  a  white  man's  government  and  a  white  man's  vote,  why,  in  the  name  of 
high  Heaven,  did  not  a  majority  of  this  Convention  vote  to  say  that  other  political 
parties  represented  in  this  State  should  have  representation  upon  the  Electoral  Board? 
VTiy?  It  means  nothing  more  and  nothing  less  than  that  a  majority  of  this  Convention 
has  been  living  in  an  atmosphere  of  election  practices  and  election  frauds  for  so  long 
that  honest  as  they  may  be  and  conscientious  as  they  may  be.  they  could  not,  for  the 
sake  of  obtaining  purity  in  elections,  give  one  single  member  of  this  Electoral  Board  to 
the  Republican  party.  I  would  say  to  the  gentleman  from  Louisa  that  I  am  not  a 
Republican  for  office.    I  come  from  a  Democratic  community  and  a  Democratic  county. 


3060 


DEBATES  OE  THE  CONSTITUTIOi^AL  CONVENTIOjSt  OF  VIRGINIA. 


If  I  were  a  politician  for  the  sake  of  obtaining  office  in  this  State,  I  would  be  a  Demo- 
crat. I  say  to  him  that  his  statement  that  there  are  counties  in  this  State  in  which 
there  could  not  be  selected  one  suitable  man  as  a  member  of  this  Electoral  Board  is 
rather  a  startling  statement.  The  gentleman  is  either  not  well  acquainted  with  the 
conditions  in  his  own  State  and  among  his  own  people,  or  he  is  so  blinded  by  prejudice 
that  he  does  not  think  anybody  who  is  a  Republican  is  capable,  efficient,  and  honest. 

Now,  gentlemen  of  the  Convention,  this  minority  plan  offered  by  the  minority  sug- 
gests honest  election,  it  suggests  fair  election.  It  makes  provision  for  fair  election. 
It  has  in  it,  without  calling  the  attention  of  the  Convention  to  the  details  of  it,  pro- 
visions that  all  elections  shall  be  fair,  shall  be  honest,  and  be  conducted  on  high  and 
honorable  lines. 

There  will  be,  under  the  conference  plan  here  presented,  men  appointed  by  the 
Electoral  Board,  to  represent  the  minority  party  in  this  State  as  judges  of  election, 
whom  the  Republicans  of  character  in  that  county  and  that  community  will  repudiate 
and  whom  they  will  not  regard  as  worthy  to  be  a  Republican  judge  of  election.  They 
will  be  appointed,  because  scheming  politicians  will  mislead  the  most  elevated  and 
honorable  judges  in  this  State  upon  this  subject.  In  justice  to  the  Democrats  of  the 
county  I  represent,  I  want  to  say  to  this  Convention  that  the  Judge  of  our  Circuit 
Court,  when  he  was  a  member  of  the  Legislature,  said  that  it  was  right  and  fair  that 
one  member  of  this  board  should  be  given  to  the  Republican  party,  and  in  the  county 
that  I  represent  a  Republican  is  on  this  Electoral  Board,  and  he  is  the  only  one  in  the 
State. 

Gentlemen,  when  we  fought  the  Revolutionary  war,  our  forefathers  walked  and 
trudged  in  blood  in  order  to  gain  our  independence,  because  we  were  forced  to  pay  taxes, 
and  had  no  right  to  vote.  Patrick  Henry  said  that  taxation  without  representation  was 
tyranny.  You  not  only  require  a  man  to  pay  taxes,  but  in  addition  to  that  you  require 
of  him  an  impossibility.  You  require  of  him  to  have  education.  There  are  a  great 
many  good  men  in  this  State  who  would  shoulder  their  muskets  in  time  of  war,  who 
pay  cash  their  taxes  in  time  of  peace  to  support  the  government,  who  are  as  loyal  as  you 
or  I,  and  yet  who  cannot  prepare  their  ballots,  and  will  not  be  able  to  do  it  if  this  law 
goes  into  effect  in  1904.  For  them  I  speak.  I  can  select  twelve  men  in  the  county  of 
Franklin,  Democrats,  who  cannot  read  and  write,  but  who  would  be  able  to  compose 
as  an  intelligent  a  jury  of  tvN^elve  men  as  the  average  juries  in  this  State  under  our 
present  system  of  selecting  juries.  They  are  capable,  they  are  honest,  they  are  good 
citizens.  Then  why  shut  them  out  from  voting?  I  do  not  care  how  much  property 
they  have,  I  do  not  care  how  much  taxes  they  pay,  I  do  not  care  how  good,  or  fair,  or 
exempla-ry  their  lives  as  citizens  are,  this  Convention  would,  nevertheless,  after  1904, 
deprive  them  of  the  right  of  suffrage.  You  will  require  the  new  voter,  after  1904,  to 
have  sufficient  education  to  fix  ballots  and  to  answer  all  of  the  questions  propounded  to 
him  by  the  registrars  of  election  pertaining  to  registration.  Is  that  right?  It  does  not 
seem  to  me  to  be  right.  Unlike  some  of  the  members  upon  this  iioor,  I  do  not  contend 
that  we  came  here  independent  and  free,  and  that  we  can  act  without  regard  to  the 
people  and  give  them  what  we  think  they  ought  to  have,  regardless  of  what  they  want. 
I  am  here  to  vote  for  what  the  people  of  this  State  and  the  people  of  my  county  want. 
A  great  majority  of  the  voters  in  all  parties  in  this  State  do  not  believe  in  this,  pro- 
vision, and  if  they  had  any  restriction  at  all,  would  have  nothing  more  than  a  reasonable 
poll  tax  as  a  prerequisite  to  voting.  Mr.  President,  this  suffrage  report,  if  adopted, 
as  it  will  be  adopted,  will  drive  labor  and  capital  from  our  State.  It  will  prevent  labor 
and  capital  comiig  into  our  State.  It  will  drive  a  great  many  of  our  workmen 
from  our  boundries.  The  material  interests  of  the  State  will  be  damaged  and  pros- 
trated,  and  the  State  will  be  retarted  in  her  material  growth.  I  was  in  hope  that  the 
Convention  would  frame  a  Constitution  largely  cutting  down  the  taxes  of  the  people  of 
this  State,  and  that  when  it  came  to  the  subject  of  suffrage  it  would  content  itself,  if 
it  put  any  restriction  at  all  upon  the  right  of  suffrage,  with  simply  having  a  poll  tax  as 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3061 


n  prerequisite  to  voting.  I  wanted  to  see  a  Constitution  written  that  would  give  an 
impetus  and  an  inspiration  to  this  old  mother  State,  and  help  to  place  her  in  her 
accustomed  and  ancient  place  in  the  front  ranks  of  the  great  States  of  this  Union.  I 
wanted  to  see  her  placed  in  such  a  condition  and  under  such  circumstances  that  she 
would  develop  men  in  the  future,  and  add  additional  stars  to  her  crown  that  would 
shine  with  as  much  brilliance',  lustre,  and  spendor  as  those  placed  there  in  days 
gone  by. 

]\Ir.  President,  without  detaining  the  Convention  longer,  I  want  to  enter  my  most 
solemn  protest  against  the  adoption  of  this  as  the  suffrage  law  in  this  State.  It  is 
not  right.  It  is  wrong.  It  is  not  justice.  It  is  injustice.  It  is  not  good  government; 
it  is  not  good  legislation.  It  is  bad  government,  and  it  is  bad  legislation.  It  will 
deprive  a  great  many  of  the  white  people,  as  well  as  a  great  many  of  the  negroes  in 
this  State,  of  the  God-given  right  of  suffrage. 

I  think  you  for  your  attention. 

Mr.  R.  L.  Gordon:  Mr.  President  and  gentlemen  of  the  Convention,  I  had  not 
intended  to  detain  you  another  moment  upon  this  great  and  perplexing  suffrage  ques- 
tion, and  if  I  were  so  fortunate  as  to  agree  with  the  majority  of  my  Democratic  brethren, 
I  should  now  be  silent.  I  shall  not  engage  in  any  discussion  of  peanut  politics  with 
the  gentleman  from  Franklin,  because  I  do  not  care  to  take  up  your  time  with  such  a 
discussion.  But,  gentlemen  of  the  convention,  this  is  a  question  of  such  great  moment, 
one  of  such  great  difficulty,  one  in  which  the  people  of  Virginia,  as  I  understand,  are 
so  deeply  interested,  that  I  would  be  unfaithful  to  myself,  I  would  be  unfaithful  to  the 
great  Virginia  constituency  that  I  in  part  represent,  and  I  v/auld  be  unfaithful  to  those 
noble  Democrats  of  my  own  county  who  have  struggled  against  these  outrageous  condi- 
tions for  the  last  thirty  years,  if  I  do  not  give  to  you  some  of  the  reasons  why  I 
cannot  endorse  the  report  of  the  majority  of  this  Convention.  It  is  the  most  painful 
thing  to  me,  gentlemen,  that  has  ever  happened  that  I  cannot  agree  with  the  majority 
of  the  mefnbers  of  the  Democratic  conference  that  has  agreed  upon  this  suffrage  report. 

I  came  to  this  Convention,  gentlemen,  if  you  will  pardon  a  word  of  personal  expla- 
nation, with  my  views  fully  known.  I  told  the  people  of  my  county  before  they  sent 
me  here  that  I  intended  ,  as  far  as  in  me  lay,  to  disfranchise  every  negro  that  I  could 
disfranchise  under  the  Constitution  of  the  United  States,  and  as  few  white  people  as 
possible.  I  disagree  with  this  report  for  far  different  reasons  than  those  which  have 
been  given  by  the  delegates  that  have  assailed  it.  I  pity  the  white  men,  Mr.  President, 
who  have  lived  in  Virginia  for  thirty  years  and  who  now,  after  realizing  the  degrada- 
tion which  negro  suffrage  has  brought  upon  our  grand  old  State,  can  get  up  here  before 
a  body  of  representative  Virginians  and  tell  them  that  if  it  was  an  original  question 

and  he  had  the  power  now,  he  would  give  the  African  the  right  to  kill  the  Saxon  vote. 

(Applause.) 

Mr.  President,  I  cannot  do  justice  to  my  own  feelings  in  this  matter  without,  for 
a  moment,  commenting  upon  that  which  has  been  lauded  in  this  body — that  great  fif- 
teenth amendment.  To  my  astonishment,  there  are  some  of  my  Democratic  brethren 
here  who  seem  to  regard  it  with  reverence,  if  not  with  affection.  For  myself,  I  recog- 
nize it  as  the  supreme  law  of  this  land,  governing  this  people,  because  they  have  not  the 
power  to  resist  it;  but  the  hearts  of  the  Virginia  people  have  never  approved  it,  and 
true  Virginians  can  never  approve  it.  We  do  not  believe  that  the  colored  man  is  the 
equal  of  the  white  man,  and  that  is  what  the  fifteenth  amendment  means.  We  do  not 
believe  that  the  only  difference  between  the  negro  and  the  white  man  is  the  color  of 
his  skin.  It  is  said,  gentlemen,  that  some  Indians  once  captured  a  negro  and  they 
undertook  to  rub  the  black  off  him  with  corn-cobs,  and  they  almost  killed  the  poor 
fellow  rubbing  him  to  get  him  white.  That  is  the  mistake  that  our  northern  brethren 
have  made.  They  think  that  the  only  difference  between  the  African  and  the  Saxon  is 
the  color  of  his  skin.  The  difference  is  deeper  and  more  radical.  The  African  has 
never  as  yet  achieved  his  own  civilization.    He  has  got  behind  him  5,000  years  of 


3062 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


slavery.  What  does  the  record  of  our  country  now  prove?  He  has  been  liberated  for 
thirty-six  years  and  during  that  time  the  white  man  of  the  South  has  been  burdened 
to  educate  him,  to  improve  him,  to  elevate  him,  and  to  make  him  worthy  of  citizenship 
in  this  great  republic.  With  what  results?  Mr.  President,  1  desire  to  call  the  attention 
of  this  honorable  body,  for  a  moment,  to  the  testimony  of  Professor  Walter  F.  Wilcox, 
of  Cornell  University,  now  acting  as  State  Statistician  of  the  Census  of  1900.  He  says 
that  the  records  show  that  crime  is  increasing  much  more  rapidly  among  the  negroes 
than  among  the  whites.  Pie  says  that  the  last  census  of  1890  shows  that  in  the  Southern 
States  there  were  six  white  prisoners  to  every  10,000  whites  and  twenty-nine  negro 
prisoners  to  every  10,000  negroes.  He  says  that  in  the  North  the  census  shows  that  there 
were  twelve  white  prisoners  to  every  10,000  and  sixty -nine  negro  prisoners  to  every 
10,000;  that  in  the  State  of  New  York  there  were  five  negroes  to  evei-y  white  prisoner, 
shov\^ing  that  since  these  people  have  been  made  free,  instead  of  improving,  the  records 
of  crime  shov/  that  they  are  retrograding.  I  do  not  mean  to  say  that  that  is  the  ease 
with  all  the  negro  people,  because,  gentlem.en,  I  am  no  enemy  to  that  race,  I  would 
accord  to  the  negro  every  right  that  is  accorded  to  the  Saxon.  I  would  see  that  he 
was  protected  against  the  Saxon  superior  ability  and  his  superior  courage;  but  I  would 
not  give  him  the  right  to  govern  the  man  of  superior  integrity,  superior  intelligence  and 
superior  v/orth.  This  record  shows,  and  the  records  of  your  own  penitentiary  will  show 
the  same  thing,  that  negro  crime  is  increasing.  Go  there  and  examine  the  inmates  of 
that  institution  and  you  will  find  that  nearly  twice  as  many  of  the  convicts  there  are 
literate  as  are  illiterate.  In  other  words,  the  old  slaves,  the  men  who  had  the  mis- 
fortune, from  the  gentleman's  standpoint  who  has  preceded  me,  of  having  a  master, 
is  not  committing  crime;  but  when  the  restraining  hand  of  the  white  race  was  taken 
from  him,  when  he  missed  the  intimate  association  between  slave  and  mater,  he 
degenerated.  While  he  may  be  an  excellent  laborer,  and  he  is  an  excellent  laborer, 
properly  managed,  he  is  not  a  statesman  and  the  United  States  Government,  sir,  with 
all  its  power,  cannot  make  him  into  a  statesman.  « 

Gentleman  of  the  Convention,  3^ou  will  pardon  me  for  the  brief  allusion  to  the 
amendment  that  I  had  the  honor  to  offer  and  to  advocate  before  you.  I  know  it  will 
worry  you;  but  I  have  had  no  opportunity  to  speak  to  the  people  who  sent  me  here 
on  this  question.  Our  deliberations  have  been,  to  some  extent,  in  the  secret,  and  while 
there  have  been  reports  in  the  daily  press  of  our  proceedings,  those  reports  have  not 
been  satisfactory  and  the  position  of  the  various  gentlemen  upon  this  great  question 
have  been  imperfectly  presented.  I  was  one  of  those  gentlemen  who  believed,  that, 
after  thirty  years  of  experiment,  the  people  of  Virginia  would  be  v\alling  to  accept 
some  sacrifice,  if  need  be,  to  rid  Virginia  of  the  terrible  evil  of  negro  suffrage.  I  wish 
to  put  myself  on  record  here  as  being  opposed  to  what  is  known  as  manhood  suffrage. 
I  believe  that  the  greatest  mistake  that  any  people  ever  made  was  made  when  the 
Convention  of  1850  adopted  manhood  suffrage.  I  believe  that  the  right  to  vote,  as 
it  is  generally  conceived  by  some  ignorant  politicians,  is  not  a  right  but  a  privilege, 
a  trust  and  the  highest  trust  that  a  sovereign  State  can  repose  in  its  citizens.  I  believe 
that  the  duty  oT  that  State  is  to  repose  that  sacred  trust  in  the  hands  of  those  most 
worthy  to  exercise  it  for  the  benefit  of  those  who  vote,  as  well  as  for  the  benefit  of 
those  who  do  not  vote.  Manhood  suffrage!  Aye,  the  same  argument  which  establishes 
manhood  suffrage  would  more  than  establish  womanhood  suffrage.  For  myself  I  believe 
that  the  ladies  are  far  better  than  the  men.  If  a  man  has  got  a  right  to  vote  merely 
because  he  is  a  man  then  a  woman  ought  to  have  a  right  to  vote  merely  because  she  is 
a  woman.  Further,  gentlemen,  I  believe  in  the  virtue  of  a  property  qualification,  as 
contrasted  with  an  educational  qualification.  And  why?  Some  gentlemen  will  ask 
me  if  property  makes  the  man?  I  say  no.  Does  education  make  the  man?  I  want 
to  ask  the  advocates  of  education,  in  this  body,  whether  education  has  fitted  any  negro 
in  Virginia  to  vote?  Is  it  not  a  fact  that  the  young,  partially-educated  negro  is  the 
m.an  you  are  trying  to  disfranchise? 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIMA. 


3063 


Mr.  Dunavi-ay:  Under  the  present  plan,  if  this  provision  is  adopted,  is  not  the 
very  class  of  negro  which  you  describe  the  only  negro  who,  as  a  rule,  can  vote  in  Vir- 
ginia? 

Mr.  Gordon:  I  think  so,  and  thai  is  my  objection  to  the  plan.  He  can  vote  if 
he  pays  his  poll-tax.  ^ 

Gentlemen,  property  does  not  qualify  a  man  to  Tote:  but  the  great  majority  of 
the  white  people  in  Virginia  who  are  worth  a  button  have  S200  worth  of  property  some- 
where in  the  family.  I  was  one  of  those  who  had  hoped  that  we  came  to  this  Convention 
for  the  purpose  of  purifying  the  political  atmosphere  in  Virginia.  I  believed  that  we 
never  could  get  rid  of  the  negro  vote  in  this  State  without  some  sacrifice,  however 
small,  of  the  white  vote.  I  believe,  with  the  utmost  respect  to  this  Convention,  that 
they  have  underestimated  the  patriotism  and  virtue  of  the  people  of  A'irginia,  and 
that  they  have  not  given  to  them  a  remedy  that  will  wipe  forever  from  their  registration 
books  the  great  majority  of  the  negro  vote  in  this  State. 

Gentlemen  of  the  Convention,  the  plan  which  is  proposed  here  was  charged  to  the 
gentleman  from  Campbell  by  the  gentleman  from  Richmond  (Mr.  Meredith).  I  do  not 
think  the  gentleman  from  Campbell  is  in  any  way  responsible  for  it.  I  think,  in 
justice  and  fairness  to  him  it  should  be  stated  that  he  has  done  all  in  his  power  to  give 
to  the  people  of  Virginia  as  mild  a  dose  of  suffrage  as  he  possibly  could.  The  plan  is 
the  plan  of  the  gentleman  from  Lynchburg,  and  if  there  is  glory  he  is  entitled  to  that 
glory.  If  it  should  work  badly  he  is  largely  responsible  for  it.  The  gentleman  from 
Campbell  is  the  only  gentleman  who  has  argued  this  plan  from  a  Democratic  standpoint 
and  he  says  that  "  this  bill  was  not  designed  to  secure  white  supremacy.'"  We  have 
that;  but  to  enable  him,  the  white  man,  to  rule  by  methods  which  command  the  respect 
of  the  eiyilized  world.  I  heartily  agree  with  him.  That  was  my  object;  but  does  this 
plan  accomplish  that  object?  Majority  I  VThy,  the  criticism  that  the  minority  party 
makes  upon  the  Eemocratic  party  is.  co  some  extent,  a  just  criticism.  It  is  :hat  the 
larger  the  negi'o  vote  the"  larger  the  Democratic  majority.  Ve  want  to  correct  that 
state  of  things.  T^Tiat  is  the  bitter  truth?  It  is  this:  That  when  you  come  to  the 
question  as  to  whether  the  Saxon  will  have  his  vote  destroyed  and  his  civilization  domi- 
nated by  an  inferior  and  perhaps  a  corrupt  race,  that  he  will  resort  to  methods  which 
are  indefensible  in  order  to  preserve  white  supremacy.  He  has  preserved  it;  but  he 
has  preserved  it  in  a  waj'  that  we  wish  to  relieve  him  from.  I  ask  this  Convention 
candidly  what  is  this  plan  which  is  to  protect  you  against  the  negro  in  this  State.  It 
is  simply  a  capitation  tax  and  education.  That  is  all.  One  branch  of  this  body  is 
educating  the  negro  with  one  hand,  the  other,  providing  that  as  soon  as  he  is  educated 
he  may  come  into  your  suffrage.  The  only  other  provision  is  the  capitation  tax,  a 
method  which  has  been  tried  once  in  Virginia  and  discarded  because  it  worked  badly. 
Xow.  what  have  you  got?  In  addition  to  that  capitation  tax  you  have  got  a  requirement 
that  it  shall  be  paid  six  months  in  advance.  I  ask  this  body  if  you  are  willing  to  rest 
your  suffrage  plan  upon  that  narrow  thread.  Do  you  not  know  that  the  ingenuity  of 
man  and  the  skill  of  politicans  is  going  to  circumvent,  in  some  way,  your  six  months' 
prerequisite?  I  ask  the  Democratic  members  of  this  Convention  if  they  do  not  believe, 
that  in  a  great  presidential  contest  the  Republican  party,  if  Virginia  is  a  doubtful 
State,  will  send  money  here  to  pay  the  capitation  taxes  of  these  people,  with  the 
absolute  knowledge  that  ninety-nine  out  of  every  hundred  of  them  will  vote  the  Repub- 
lican ticket  after  that  tax  is  paid? 

The  gentleman  from  Lynchburg  said  that  he  was  assailed  by  two  classes  of  critics, 
one  saying  that  the  measure  was  too  drastic  and  the  other  saying  that  it  is  not  drastic 
enough.  I  ask  my  Democratic  brethren,  who  is  saying  that  it  is  too  drastic?  Xo  one 
but  the  Republicans  on  this  floor,  who  have  stated  time  and  again  that  they  want  no 
change  in  the  suffrage.  There  is  not  a  man  here  representing  that  party  that  I  know  of, 
who  desires  any  change  in  the  present  law. 

Mr.  Blair:  Do  you  believe  the  present  plan  will  disfranchise  an\  white  voters  in 
Virginia? 


3064 


DEBATES  OF  THE  CO^tstITUTIOI^AL  CONVENTION  OF  VIRGINIA. 


Mr.  Gordon:  I  think  there  will  be  some.  But,  on  the  other  hand,  the  gentlemen 
who  say  this  provision  is  not  drastic  enough,  point  to  the  fact  that  you  have  got  146,000 
negro  voters  in  your  State  pressing  up  to  vote,  and  that  you  have  nothing  between  the 
future  negro  voter  and  the  ballot-box  but  the  capacity  to  read  and  write  and  to  pay 
$1.50  to  the  State.  That. is  all.  As  to  the  requirement  of  his  oath,  any  man  who  can 
read  and  write,  in  my  humble  judgment,  can  answer  the  questions  to  be  propounded 
to  him  by  the  registrar.  Now,  gentlemen,  I  want  to  say  this  to  the  men  representing 
the  opposite  party  in  this  body,  that  the  Anglo-Saxon,  the  v.^hite  man  of  Virginia,  is 
going  to  continue  to  govern  this  State.  If  you  compel  him  to  get  rid  of  the  negro  vote  by 
indirection,  he  will  get  rid  of  it  by  indirection,  because  he  cannot  allow  negro  control. 
I  had  hoped  that  we  were  going  to  wipe  this  negro  vote  from  the  registration  books 
of  Virginia,  and  liberate  the  white  man's  mind.  I  recognize  the  fact  that  when  you  do 
that  you  strengthen  the  Republican  party  of  this  State,  because,  in  my  humble  judg- 
ment, the  greatest  weight  that  is  hanging  around  the  Republican  party  in  the  South 
is  the  negro  vote.  If  you  once  get  rid  of  the  negro,  and  give  the  white  man  his  God- 
given  privilege  of  thinking  and  acting  for  himself,  you  will  have  more  white  Republicans 
to  contend  with  the  white  Democrats.  Gentlemen,  there  can  never  be  purity  in  election 
when  you  have  but  one  political  party,  and  we  have,  practically,  but  one  political  party 
in  this  State.  As  long  as  you  have  only  one  political  party,  that  is  so  powerful  that 
nothing  in  the  State  can  resist  it,  you  are  going  to  have  practices  in  elections  which 
you  will  regret.  As  it  was  with  the  old  Catholic  Church,  in  the  days  of  the  reforma- 
tion, so  it  is  with  us;  it  is  necessary  for  us  to  divide  and  fight,  if  we  are  to  have  purity 
in  elections. 

The  time  is  coming,  gentlemen,  and  I  regret  it,  when  the  v^hite  people  of  Virginia 
cannot  stand  together.  Then  what  is  your  condition?  Whenever  the  white  men  of  this 
State  divide,  the  negro  will  hold  the  balance  of  power.  Not  only  that,  but  joii  will  have 
the  white  men  of  your  State  bidding  for  the  negro  vote  against  each  other.  What  is 
the  result?  The  result  always  is  that  the  lowest  and  most  mercenary  and  meanest 
element  of  your  society  will  capture  the  negro  vote,  perhaps,  and  it  will  stand  with  them  to 
overcome  the  best  interests  of  the  State.  I  came  to  the  Convention  v\^ith  the  hope  that 
we  Y^ere  going  to  meet  this  suffrage  question  in  a  bold,  manly  way,  and  settle  it.  But, 
gtntlemen,  the  mountain  has  labored,  and  behold,  a  very  little  mouse.  We  have  settled 
the  question  until  1904,  and  the  mouse  must  then  die  a  natural  death.  After  that,  this 
perplexing  question,  which  meets  us  at  the  school-house;  which  meets  us  at  the  rail- 
road station;  which  meets  us  in  the  halls  of  legislation,  and  which  meets  us  in  every 
avenue  of  life,  has  got  to  be  fought  out  slowly  and  painfully,  and,  I  regret  to  say,  with 
degradation  to  my  own  race. 

I  believe,  gentlemen  of  this  Convention,  that  if  joii  could  have  been  induced  to 
accept  the  amendment  which  I  had  the  honor  to  offer,  exempting  all  the  soldiers  and 
their  descendants,  and  then  giving  the  man  a  right  to  vote  who  had  $200,  or  whose  wife 
had  $200  worth  of  property,  or  whose  parents  had  $200  worth  of  property,  you  would 
have  covered  the  great  white  electorate  of  the  State,  and  covered  it  in  an  absolutely 
constitutional  manner.  You  would  not  have  sacrificed  more  than  3  or  4  per  cent,  of 
the  white  voters  of  the  future,  and  comparatively  none  of  the  present.  I  want  to  ask 
the  men  of  Virginia,  what  man  is  there  within  our  borders  who  objects,  to  this  suffrage, 
and  would  not  make  that  sacrifice  to  get  rid  of  this  horrible  burden.  I  want  to  say, 
further,  that  I  was  originally  a  property  man.  I  went  to  "understanding"  when  I  was 
driven,  on  my  committee,  away  from  property,  and  afterwards  I  fully  endorsed  this 
understanding  plan.  The  distinguished  Senator  from  Lynchburg  asked  the  people 
of  Virginia  to  consider  the  burden  that  was  upon  us  before  it  pointed  the  finger  of  scorn 
at  the  understanding  clause.  Gentlemen  of  this  body,  if  there  is  any  odium  attached 
to  it,  I  want  to  gladly  assume  it,  in  order  to  rid  the  people  of  this  burden.  If  there  is 
any  responsibility  attaching  to  it,  let  that  responsibility  be  mine.  My  only  regret  is 
that  you  have  chosen  your  instrument  for  one  year's  work,  and  it  ceases  then,  when  you 
need  it  as  much  as  you  needed  it  before. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEVTIOX  OE  VIEGI^'IA. 


3065 


Genrlemen..  I  shall  only  detain  you  one  momeni  longer  with  what  I  feel  is,  perhaps, 
a  useless  protest  against,  the  judgment  of  this  tody.  If  it  were  a  matter  upon  -vrhich 
I  could  compromise,  I  would  gladly  surrender  my  individual  judgment  and  opinion.  I 
would  think  it  was  the  essence  of  conceit  and  stuhhomess  to  place  my  poor,  weak 
judgment  against  the  collective  judgment  of  this  tody.  It  is  a  question  upon  which 
there  can  te  no  compromise  in  your  representative  capacity.  The  trust  which  has 
teen  given  to  us  is  so  sacred  in  its  nature  that  we  must  be  true  to  it  as  we  see  it,  how- 
ever our  brethren  may  diSer  from  us.  I  believe,  gentlemen,  that  this  is  the  beginning  of 
a  better  day.  I  am  not  a  pessimist.  I  think  that  we  have  thrown  away,  or  that  we 
have  failed  to  meet  the  greatest  opportunity  that  the  people  of  Virginia  have  ever  had 
to  liberate  themselves  from  this  curse.  TTe  have  failed,  in  my  humble  judgment,  to 
measure  up  to  this  gi-eat  responsibility,  and  to  meet  it  as  I  had  hoped  Virginians  would 
meet  it.  I  know  that  this  is  a  patriotic  body  of  men.  I  know  that  they  are  self-sacrific- 
ing, and  devoted  to  what  I  believe  to  be  the  true  interests  of  the  Commonwealth. 

I  only  regret  that  this  su&age  question  was  not  crystallized  in  the  minds  of  the 
people  of  this  State  before  this  body  was  called  together.  Ve  came  here  divided  among 
ourselves.  You  know  that  I  fought  for  property  with  all  the  power  that  God  has  given 
me;  a.nd  I  think,  and  cannot  help  saying,  that  if  my  distinguished  friend  from  PJch- 
mond  TMr.  Meredith)  and  my  distinguished  friend  from  Augusta  (Mr.  Braxton),  and 
my  distinguished  friend  from  Fairfax  (Mr.  Moore)  had  rallied  around  me  and  helped 
me  in  that  struggle,  we  would  to-day  have  had  a  suSrage  clause  which  would  have 
guaranteed  to  the  people  of  Virginia  liberation  from  this  negro  vote,  and  practical 
liberation  from  it  now  and  forever.  But,  gentlemen,  there  are  no  good  impulses  lost  in 
life.  God  has  ordained  that  every  noble  enort,  however  unsuccessful  it  may  be,  must 
meet  its  reward.  I  believe  that  He  still  guides  the  destinies  of  nations,  and  I  fain 
would  hope  that  He  looks  with  peculiar  aSection  upon  the  old  State  of  Virginia.  I 
believe  that  we  have  commenced  this  work,  and  that  the  spirit  of  the  people  behind  us, 
braver,  perhaps,  than  ours,  is  going  to  take  it  up  in  the  future  and  carry  it  on  to  per- 
fection, because  that  same  God  that  made  one  man  white  and  another  black,  we  know 
not  why,  governs  the  destinies  of  men,  and  He  is  going  to  give  to  the  people  some 
way  to  be  rid  of  this  blighting  curse. 

Gentlemen  of  the  Convention,  I  thank  you  most  heartily  for  the  attention  you 
have  given  me.  On  more  than  one  occasion  I  have  been  the  recipient  of  the  utmost 
courtesy  and  consideration  at  the  hands  of  this  body.  I  expect  that  this  is  the  last  time 
that  I  shall  have  the  honor  and  pleasure  of  addressing  you.  I  have  no  doubt  the  body 
joins  in  a  hearty  amen  to  that  sentiment.  But  I  want  to  thank  you  now  for  the  kind 
consideration  you  have  shown  me  in  some  hours  of  serious  excitement,  and  of  somewhat 
bitter  feeling,  bec-ause  this  is  a  question  of  such  wital  importance  that  we  must  feel 
strongly  about  it.  If  I  have,  in  the  heat  of  debate,  wounded  the  sentiments  of  any 
gentleman  in  this  Convention.  I  hope  he  will  attribute  it  to  an  earnest  advocacy  of 
this  cause,  and  not  to  a  lack  of  kindness  or  consideration  on  my  part. 

I  thank  you,  gentlemen.  (Applause.) 

Mr.  TVise:  I  wish  my  position  upon  this  question  to  be  understood,  not  only  by  the 
people  whom  I  represent,  but  by  all  the  people  of  this  State.  I  signed  the  majority 
report,  but  announced  when  doing  so  that  it  would  not  receive  my  vote  in  Convention, 
unless  amended  as  then  suggested  by  myself.  The  amendment  which  I  pro- 
posed was  not  that  the  registrar  should  have  the  right  to  submit  to  any 
person  who  might  appear  for  registration  any  clause  of  the  Constitution 
he  might  select,  thus  giving  him  the  arbitrary-  power  to  submit  to  one  voter  one  test 
and  to  another  voter  another  test,  as  provided  in  the  report  of  the  minority  of  the 
Committee  on  SuSrage.  It  was  that  every  applicant  for  registration  should  be  able  to 
give  a  reasonable  explanation  of  the  general  duties  of  the  officers  to  be  voted  for  at 
the  election  next  ensuing.  I  announced  when  I  signed  the  report  that  I  would  not 
support  the  proposition  unless  that  amendment  should  be  adopted.  Xow,  gentlemen, 
193 — Const.  Deb. 


3066  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

after  long  conference,  we  have  reached  an  agreement,  v/hich  is  embraced  in  the  article 
I  hold  in  my  hand.  While  it  contains  provisions  which  have  not  the  approval  of  my 
judgment,  I  do  not  hesitate  to  declare  that  in  view  of  the  Fifteenth  Amendment  of  the 
Constitution  of  the  United  States,  and  in  view  of  the  conditions  which  confront  us,  I 
do  not  believe  that  the  ingenuity  of  man  could  devise  a  better  plan.  I  congratulate  the 
members  here  assembled  that  we  have  been  able  to  reach  a  conclusion  which,  I  believe, 
will  be  satisfactory  to  the  people  of  our  State. 

It  does  not,  in  my  humble  judgment,  in  any  particular  violate  the  Constitution  of 
the  United  States,  and  it  is  based  upon  the  principles  of  justice  and  of  right.  I  shall 
not  only  give  it  my  vote,  but  my  hearty  support.  I  entertained  the  hope  that  even  the 
Republicans  would  sustain  it.  I  am  sure  that  when  it  is  adopted,  it  will  receive  the 
endorsement  of  the  people  of  Virginia.  (Applause.) 

Mr.  Hamilton:  Mr.  President,  I  beg  the  attention  of  members  of  the  Convention 
for  a  very  few  moments.  With  very  deep  regret  I  have  been  forced  to  reach  the  con- 
clusion that  I  cannot  vote  for  the  plan  submitted  by  this  Convention  by  the  Democratic 
conference.  I  was  and  am  prepared  to  admit  that  there  are  some  improvements  in  it 
over  existing  laws  and  conditions.  I  feel  that  the  effort  is  in  the  right  direction,  and 
is  inspired  by  proper  motives.  I  have  hesitated  whether  I  should  not  overcome  my 
repugnance  to  voting  for  it,  up  to  a  very  short  time  since;  in  fact,  this  morning.  If 
I  could  vote  for  it  without  the  temporary  understanding  clause,  I  would  gladly  do  so, 
because  I  think  there  would  be  some  improvement  over  existing  conditions.  I  do 
believe  that  there  is  some  virtue  in  the  poll-tax  prerequisite.  I  have  always  believed 
so,  notwithstanding  a  difference  on  that  point  with  some  of  my  best-informed  friends. 
I  do  believe  in  an  educational  qualification  at  a  proper  time,  after  people  have  had  a 
reasonable  opportunity  to  prepare  themselves.  But,  taking  it  on  the  whole,  I  am  satis- 
fied that  it  is  a  mere  makeshift — a  mere  whitewashing  of  the  situation — something 
that  does  not  give  real  and  substantial  relief  to  those  portions  of  Virginia  needing 
that  relief,  and  entitled  to  that  relief.  I  therefore  am  not  willing  to  go  upon  record  as 
approving  it  as  the  work  of  a  great  body  called,  in  my  judgment,  chiefly  to  settle  that 
one  great  question. 

Another  objection  I  have  to  it  is  this:  I  signed  the  majority  report  of  the  Suffrage 
Committee  which  approved,  in  substance,  of  a  permanent  understanding  clause.  I 
refused  to  sign  or  to  approve  any  understanding  clause  for  months.  It  was  distasteful 
to  me;  but  I  felt  that  it  was  posisible,  to  say  the  least,  that  such  a  clause  could  be 
honestly  and  fairly  administered,  and  certainly  there  is  notliing  Vs^rong  upon  the  face 
of  such  a  clause,  whether  permanent  or  temporary.  We  will  have  it  administered 
fairly,  because  in  1904  the  Circuit  Judge  will  appoint  the  electoral  boards,  and  it  will 
be  a  judicial  act.    Y\^hat  more  could  we  want?    What  have  we  to  fear? 

Now,  gentlemen  of  the  Convention,  I  wish  to  say  that  this  is  positively  my  last 
appearance  before  you,  as  the  theatrical  people  say.  I  thank  you  sincerely  for  your 
attention.  The  members  of  this  Convention  shall  ever  be  dear  to  me.  I  have  learned 
to  love  every  man  in  this  hall.  I  have  striven  to  do  my  duty,  and  I  concede  that  you 
have.  Wherein  we  have  differed  I  believe  we  have  honestly  differed.  I  trust  that  the 
prayer  of  the  Governor  of  Virginia,  when  he  signed  the  bill  calling  this  Convention. 
"  God  save  the  Commonwealth,"  has  been  answered.  I  believe  that  that  prayer  will  be 
answered  in  the  future,  and  the  answer  will  echo  back  to  the  mountains,  the  hills,  and 
the  dales.  I  believe  that  Virginia,  instead  of  scorning  her  sons,  who  have  labored  for 
this  consummation,  will  some  day  rise  and  call  us  blessed  for  that  which  we  have  done, 
although  it  may  have  been  done  in  weakness,,  in  travail,  and  sometimes  in  storm.  (Ap- 
plause.) 

Mr.  Watson:  Mr.  President,  to  review  the  work  of  the  Convention  on  the  important 
question  now  under  debate,  I  have  tried  sincerely  to  weed  from  my  heart  whatever 
might  yet  remain  of  disappointment,  of  pride,  of  opinion,  or  of  personal  ambition.  To 
many  of  you,  gentlemen  of  the  Convention,  I  am  bound  by  countless  ties  of  courtesy 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIRGIXIA. 


3067 


and  friendship;  to  most  of  you  I  o^-e  the  allegiance  of  a  common  political  faith.  About 
me  are  many  older  and  vriser  heads  than  my  own,  some  grown  gray  in  the  public  service 
in  a  trying  period  of  their  country's  history. 

In  such  situation,  I\Ir.  President,  no  ordinary  cause  could  impel  me  to  separate 
myself  from  them  and  from  you  in  the  closing  days  of  this  assembly.  Such  a  course 
is  one  of  sadness,  and  infinite  regret — come  to  me  only  after  anxious  days  and  sleepless 
nights  of  thought.  But,  sir,  in  the  life  of  men,  as  in  the  life  of  States,  there  are 
moments  when  the  individual  must  resolve  and  act  for  himself  alone.  A  grave  public 
responsibility — duty  to  an  unfortunate,  though  a  brave  and  chivalric  people — com- 
mands me  to  make  the  sacrifice,  and  to  stand  up,  if  need  be  alone,  in  behalf  of  the 
present  peace  and  future  security.  In  the  month  of  January  last,  before  the  Democratic 
members  of  the  Convention,  I  had  the  privilege  of  presenting  at  length  and  in  detail 
the  views  entertained  by  my  constituents  and  by  myself  on  this  important  subject; 
and  I  shall  not  again  reproduce  the  incidents  of  that  discussion.  But,  I  owe  it  to 
myself,  to  the  judgment  of  this  honorable  body,  to  the  people  of  Nottoway  and  of 
Amelia,  who  have  a  right  to  exact  an  account  of  my  stewardship  here,  and  to  the 
opinion  of  mankind,  to  make  a  brief  statement  of  the  reasons  which  have  induced  me  to 
withhold  my  approval  of  the  remedy  which  you  have  prescribed  for  the  evils  which 
afflict  this  Commonwealth. 

Gentlemen,  but  for  the  negro  voter  in  Southside  and  Tidewater  Virginia  there  would 
have  been  no  pressing  need  of  a  new  Constitution;  but  for  him.  in  all  human  proba- 
bility, this  body  would  have  been  unknown.  The  great  imderlying  principle  of  this 
Convention  movement,  the  one  object  and  cause  which  assembled  this  body,  was  the 
elimination  of  the  negro  from  the  politics  of  this  State.  My  complaint  against  your 
suffrage  is  brief  and  simple.  I  do  not  believe — I  cannot  believe — that  you  have  met  the 
just  expectations  and  desires  of  the  Virginia  people  whose  commission  we  bear,  nor 
ihat  in  any  fair  or  lasting  degree,  have  you  eliminated  the  negro  as  a  disturbing  and 
potential  factor  in  public  life.  Mr.  President,  I  do  not  reflect  so  little  as  to  imagine 
that  this  Convention  or  that  this  generation  even,  is  competent  to  deal  with  all  the 
phases  of  this  great  race  problem,  which  has  buried  nearly  a  million  of  my  blood  in 
the  soldier's  grave,  and  which  must  descend  to  our  children  as  a  part  of  the  inheri- 
tance of  this  American  republic.  I  know  full  well  that  after  the  political  status  of 
the  negro  has  been  determined,  there  will  yet  remain  the  still  more  trying  conflict  con- 
cerning his  economic  and  social  rights.  But,  sir,  now  is  the  time,  here  is  the  place, 
and  this  the  tribunal,  to  settle  the  political  phase  of  this  negro  question.  Gentlemen, 
have  you  done  it?  The  distinguished  gentleman  from  Campbell  (Mr.  Daniel),  whom 
I  do  not  see  in  his  seat,  a  chief  sponsor  of  this  scheme  of  suffrage,  has  resolved  the 
question  into  one  of  white  majorities  alone,  and  has  sought  to  allay  our  fears  by  the 
allegation  that  this  plan  will  afford  195.000  white  majority  upon  the  registration  books. 
That  gentleman  was  a  foremost  advocate  of  the  Convention  movement.  In  all  sincerity, 
I  ask  if  the  question  were  only  one  of  white  majorit3^  what  are  we  here  for  and  where 
is  the  problem  for  us  to  solve?  Why,  sir,  on  the  12th  day  of  last  June,  when  this  body 
convened,  two-thirds  of  the  population  of  this  Commonwealth  was  white — 155,000 
registered  white  majority  stood  upon  your  books — and  our  race  outnumbered  the  other 
in  sixty-five  of  the  one  hundred  counties  of  the  Commonwealth.  If  that  were  the  long- 
felt  want,  that  the  desideratum  for  which  the  Convention  was  called,  why  should  we 
not  have  adjourned  on  the  day  of  our  meeting?  We  had  the  majority  then,  w^e  have 
it  now;  if  that  were  all,  nothing  remained  to  do,  and  long  ago  we  should  have  apologized 
to  Judge  Underwood  and  gone  home. 

Mr.  President,  what  is  promised  to  the  people  who  live  southward  from  this  capital, 
in  the  plan  proposed  by  these  gentlemen? 

The  chief  feature,  and  distinguishing  characteristic  is  the  "  understanding  clause,"  the 
old  lady  whom  my  friend,  the  gentleman  from  Pulaski,  and  the  gentleman  from  Staunton 
(Mr.  Braxton)  and  the  gentleman  from  Richmond  (Mr.  Meredith)  has  flirted  with  and 


3068  DEBATES  OE  THE  CONSTITUTIOJTAL  CONVENTION  OF  VIRGINIA. 

jilted  in  turn,  and  which  has  come  at  last  to  celebrate  its  nuptials  with  them  for  one 
year's  lawful  wedlock,  then  to  be  discarded  and  driven  out  with  a  divorce  a  vinculo 
matrimonii.  That  understanding  clause  is  to  last  but  a  few  months  longer  than  the 
time  which  we  have  consumed  in  this  Convention  talking  about  it.  When  my  friend 
from  Danville  (Mr.  Withers)  goes  home  to  file  his  old  almanacs,  which  I  understand  Ee 
is  in  the  habit  of  doing,  and  takes  down  the  one  for  next  year  from  his  mantelpiece, 
the  thing  will  be  done  and  your  Constitution  ended. 

The  gentleman  from  Campbell  (Mr.  Daniel)  compares  it  to  a  tree  cut  down  across 
a  swollen  stream  over  which  the  multitude  may  cross  into  the  "  promised  land,"  leaving 
it  to  be  swept  away  by  the  next  flood  that  comes  along.  It  is  to  expire  by  limitation 
in  twelve  months  by  the  almanac — a  "Constitution  for  the  Year  One" — after  the  style 
of  the  French  revolution.  This,  then  sir,  is  the  respectable  mouse  that  creeps  forth 
from  this  mighty  mountain  in  travail,  which  has  labored  for  long  months  with  the 
destiny  of  a  great  Common v/ealth!  The  distinguished  gentleman  from  Campbell  should 
have  remembered  that,  while  he  was  cutting  down  that  tree  which  was  to  carry  him 
over  the  stream  into  the  "  promised  land,"  with  the  other  hand,  through  a  -poll-tax  and 
educational  test,  he  was  constructing  a  stone  bridge,  to  last  forever,  over  which  the 
Ethiopian  would  march  in  his  wake  on  dry  land  and  dwell  again  in  the  tents  of  his 
people. 

Now,  gentlemen,  after  January  1,  1904,  what  protection  do  these  gentlemen  offer 
to  a  people  situated  as  are  my  constituents,  against  this  population,  with  whom  they 
have  been  waging  fierce  political  battle  during  a  whole  generation?  K  $1.50  poll-tax 
and  an  educational  test — this  is  all.  Having  for  the  past  ten  years  been  familiar  with 
the  negro  as  a  voter,  and  as  a  practical  politician,  I  cannot,  I  do  not  believe  that  offers 
any  adequate  protection  to  my  people. 

We  put  ourselves  in  the  attitude  of  the  negro  on  this  question,  and  what  conclu- 
sion do  we  come  to?  We  must  remember  that  this,  is  his  highest  personal  privilege. 
When  he  sends  his  children  to  school  he  must  send  them  to  a  separate  school-house; 
when  he  goes  to  worship,  it  is  to  a  separate  church;  when  he  takes  the  railroad  to 
travel,  he  must  take  a  separate  coach.  At  all  times  and  in  all  places  he  is  separated — 
subordinated.  It  is  only  at  the  ballot-box  that  he  meets  you  face  to  face  on  terms 
of  absolute  equality.  Is  there  any  man  who  has  spent  his  life  among  those  people, 
any  reasonable  Virginian,  familiar  with  the  characteristics  of  that  race,  who  is  willing 
to  stand  here  and  say  he  believes  in  his  heart  that  the  negro  will  forego  that  privilege 
and  waive  his  highest  claim  of  freedom  and  equality  for  the  paltry  sum  of  one  dollar 
and  fifty  cents? 

I  say,  too,  Mr.  President,  that  there  is  no  educational  test  founded  upon  the 
simple  rudiments  of  mechanical  learning  that  can  keep  him  from  the  ballot-box.  One 
half  of  all  the  negro  electorate  in  this  State  can  read  and  write  at  the  present  day, 
according  to  the  census  returns,  two-thirds  of  all  those,  under  21  years  old,  can  read 
and  write  according  to  the  same,  and  the  gentleman  from  Staunton  (Mr.  Braxton)  in 
offering  his  amendment  in  the  Convention  on  yesterday  or  the  day  before,  showed  that 
he  at  least  knew  enough  about  the  negro  character  to  know  that  the  reading  and  writ- 
ing man  could  fix  the  written  applications  for  registration,  because  he  moved  to  strike 
out  of  this  article  that  clause  which  gave  assistance  to  those  who  could  read  and  write. 
That  is  not  all.  Mr.  President.  While,  with  one  part  of  this  article  you  require  that 
a  man  shall  be  able  to  do  this  reading  and  writing  before  he  can  vote,  by  another  clause 
of  the  same  article  you  tax  the  people  of  this  Commonwealth  to  the  extent  of  one  half 
a  million  dollars  per  annum  to  teach  him  to  read  and  write  so  that  he  can  cast  that 
vote.  At  this  very  hour  this  Commonwealth  is  educating  this  people  whom  you  are 
trying  to  disfranchise,  out  of  the  very  requirements  which  you  provide. 

Why,  sir,  there  are  2,500  school-houses  throughout  this  Commonwealth  to-day  turn- 
ing out  your  voters  by  the  thousand  to  meet  you,  and  to  meet  me,  at  the  ballot-box, 
and  to  confront  us  with  this  same  identical  question  in  a  few  brief  years  to  come. 
Can  a  hous^e  thus  divided  against  itself  stand? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGiXIA. 


3069 


Ah,  Mr.  President,  wliy  erect  this  Chinese  wall  around  Virginia  to  exclude  the 
alien,  and  then,  at  the  public  expense,  provide  the  scaling  ladder  by  which  the  Tartar 
can  climb  back  over  your  barrier  and  return  to  destroy  your  peace? 

But  the  gentleman  from  Lynchburg,  whom  I  regret  is  not  present  to-day,  has 
insisted,  and  perhaps  will  again  insist,  that  it  does  not  follow  that  because  a  man  can 
read  and  write  he  will  be  able  to  make  out  the  application  which  the  article  prescribes. 
I  will  appeal  to  any  lawyer  in  this  body  who  has  ever  examined  a  negro  w^itness  in 
court;  I  appeal  to  any  lawyer  here  who  has  ever  examined  a  negro  witness  in  a  con- 
tested election  case,  to  say  upon  his  conscience  whether,  when  that  witness  has  once 
got  his  lesson  committed  to  memory,  even  a  Philadelphia  lawyer — proverbial  for  skill — 
is  able  to  make  him  change  his  story  or  break  down  the  unerring  precision  of  his 
evidence  when  he  comes  to  testify,  so  great  is  the  capacity  of  the  unlettered  mind  to 
memorize  limited  facts  and  to  make  practical  use  thereof. 

Mr.  Wysor:  I  will  say  that  I  never  had  any  trouble  in  breaking  a  negro  down 
on  cross-examination  if  he  was  not  telling  the  truth,  and  I  do  not  think  he  would  have, 
either. 

Mr.  Watson:  Well,  the  gentleman  from  Pulaski  is  gifted  far  beyond  most  men, 
and  I  am  inclined  to  believe  that  his  majestic  port  and  imposing  demeanor  might  have 
the  effect  of  accomplishing  even  this  feat. 

Mr.  Wysor:  I  want  to  be  just  to  the  negro;  and  I  will  say  that  it  is  only  w^hen 
he  lies  that  I  catch  him.  It  is  only  when  he  tells  the  truth  that  it  is  hard  to  break  him 
down. 

Mr.  Watson:  Now,  sir,  the  gentleman  from  Lynchburg  has  expressed  some  indigna- 
tion that  anybody  should  be  found  in  Virginia  to  suggest  the  "superiority"  of  the  man 
in  black  over  our  own  race  in  any  point  whatsoever.  I  would  say  to  him  the  question 
is  not  one  of  race  superiority,  but  only  one  of  race  characteristic.  It  is  not  reflection 
upon  me  nor  my  race  that  a  negro  is  a  better  jig  dancer  than  I  am;  that  he  is  a  better 
comic  songster,  a  better  mimic;  or  that  he  can  better  carry  in  a  head,  not  charged  with 
reflection,  all  the  small  scraps  and  bits  of  life  that  require  an  exercise  of  mechanical 
memory  alone.  And  I  would  stake  my  life  upon  the  proposition  that  there  is  scarcely 
one  of  them  able  to  read  and  write  within  the  limits  of  this  State  who  cannot  be 
taught,  and  taught  with  ease,  to  memorize  his  name,  his  residence,  his  occupation,  and 
the  precinct  in  which  he  last  voted.  Does  any  reasonable  man  doubt  that  this  is  within 
the  capacity  of  the  men  with  whom  we  are  dealing? 

I  oppose  this  scheme,  because,  in  the  flrst  place,  it  compels  us  to  do  the  rankest 
kind  of  injustice  as  between  the  negroes  themselves.  The  old  negro  who  is  illiterate  is 
disfranchised  forever  under  your  plan,  and  the  young  negro,  who  reads  and  writes, 
walks  into  your  electorate.  The  old-timer,  sir,  the  ex-slave,  that  man  who  has  been 
referred  to  here  as  faithful  in  war  and  friendly  in  peace,  the  smoke  from  whose  hum- 
ble habitations,  ascending  to  the  skies  from  a  thousand  hillsides  in  Eastern  Virginia, 
attests  the  industry  and  frugality  of  a  passing  age,  falls  at  one  cruel  blow — because  he 
cannot  read;  he  can't  understand. 

Mr.  Wysor:  What  would  become  of  that  poor,  old  black  man  under  the  majority 
plan,  which  you  signed? 

Mr.  Watson:  I  will  endeavor  to  answer  that  in  a  moment.  I  would  say  in  passing 
to  the  gentleman  from  Pulaski,  that  I  believe  to-day,  as  I  have  ever  believed,  that  it  is 
to  the  interest  of  both  races  in  this  Commonwealth  that,  the  political  rights  of  the  negro 
should  be  wholly  withdrawm,  and  if  I  had  it  in  my  power,  in  behalf  of  the  negro  him- 
self, I  would  repeal  that  article  in  the  National  Constitution  which  confers  suffrage 
rights  upon  him;  because,  Mr.  President,  the  negro's  ballot  does  him  no  good,  and 
only  increases  the  points  of  conflict  and  of  friction  between  him  and  us  in  this  great 
struggle  which  we  are  waging  for  supremacy  and  for  white  dominion  everywhere.  But, 
when  I  come  to  deal  with  these  people  as  individuals,  I  would  do  them  justice;  I 
would  not  put  a  premium  upon  insolence,  worthlessness,  and  vice,  and  turn  round  to 


3070 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


make  war  upon  the  weak,  the  aged,  the  helpless — those  to  whom  we  are  bound  by  a  past 
honorable  relation,  and  who,  in  large  measure,  have  ceased  to  be  a  menace  to  society. 

Now,  sir,  the  old-time  negro  is  assassinated  by  this  suffrage  plan.  But  this  new 
issue— your  reader,  your  writer,  your  loafer,  your  voter,  your  ginger-cake  school  grad- 
uate, with  a  diploma  of  side  whiskers  and  beaver  hat,  pocket  pistols,  brass  knucks, 
and  bicycles — he,  sir,  is  the  distinguished  civilian  whom  our  statesmen  would  crown  at 
once  with  the  highest  dignities  of  an  ancient  and  respectable  Commonwealth. 

Men  and  brethren,  we  ought  not  to  do  this  unjust  thing.  We  may  forego  to  visit 
the  iniquities  of  the  fathers  upon  the  children,  but  we  cannot  punish  those  who  have 
obeyed  us  and  kept  our  commandments. 

For  one,  I  believe  that  this  man  of  the  future  is  going  to  pay  this  §1.50,  and  is 
^ot  only  going  to  remember  the  name  of  himself,  his  residence,  and  his  occupation; 
out  is  going  to  put  it  down  in  writing,  and  that  in  a  very  much  better  hand  than  that 
of  my  distinguished  friend  from  Hanover  (Mr.  Carter),  who  sits  In  front  of  me. 
(Laughter.) 

Mr.  Carter:    If  he  don't  you  will  not  be  able  to  read  it. 

Mr.  Watson:  I  not  only  think  that  he  is  going  to  do  all  these  things,  but  in  more 
general  compliance  than  our  own  people.  The  white  man  looks,  upon  suffrage  as  an 
hereditary  right,  and  I  believe  the  attempt  to  tax  a  privilege  which  his  ancestors  have 
exercised  for  generations  without  money  and  without  price,  will  be  resented.  Why,  sir, 
with  all  the  aid  of  great  political  machinery  in  recent  years  there  is  great  difficulty  in 
inducing  our  people  to  go  to  the  polls  and  vote.  How  are  they  going  to  behave  when  it 
is  told  that  you  have  taxed  the  right  to  vote,  and  that  you  charge  them  an  entrance  fee 
ol  $1.50  before  they  can  reach  the  polls.  I  know  that  more  than  one  fourth  of  them  in 
this  Commonwealth  now  do  not  pay  the  poll  tax,  and  I  believe  that  number  will  be  greatly 
augmented;  and  the  time  will  come  under  your  cumulative  feature  when  you  will  have 
practically  and  permanently  disfranchised  a  large  proportion  of  the  white  people  of 
Virginia.  You  say  the  white  man  can  fix  this  written  application  for  registration. 
Perhaps  he  can  do  it.  But,  the  question  is,  will  he  do  it?  The  younger  negro  whom 
my  friend  from  Pulaski  wants  to  take  care  of,  has  no  pride  at  stake.  He  Is  going  to 
come  up  and  try  your  written  application,  and  if  he  fails  the  first  time  he  will  come  back 
and  do  it  again,  until  he  does  get  it  right.  But  the  less  literate  portion  of  our  own  popula- 
tion have  pride  at  stake,  Mr.  President,  and  the  result  will  be  that  they  are  not  going 
to  try,  and  there  again  a  disfranchisement  of  the  white  people  is  going  to  operate  in 
this  suffrage  plan.  Doubtless  they  could  succeed  in  making  your  written  application; 
but  they  are  too  proud  to  exhibit  their  want  of  learning  and  will  remain  at  home. 
I  need  appeal  but  to  the  very  fact,  gentlemen,  that  when  the  Walton  law  was  first  put 
in  operation  great  numbers  of  our  white  people  were  too  sensitive  to  go  to  the  polls, 
because  they  had  to  ask  a  judge  of  election  or  constable  to  fix  their  ticket.  The  result 
was  that  all  of  us  had  to  go  by  concerted  action  to  the  election  precincts  and  ask  that 
our  tickets  be  fixed  publicly  in  order  to  relieve  the  sensibilities  of  the  less  fortunate 
part  of  our  population. 

These  things  do  not  show  that  the  negro  is  superior  to  the  white  man,  but  it  does 
show  that  there  are  some  things  which  he  values,  not,  perhaps,  more  justly,  but  in  a 
different  way.  I  happen  to  remember  that  in  the  county  of  Halifax,  which  my  friend 
to  my  left  presents  here,  and  in  the  city  of  Richmond,  and  in  the  county  of  Fairfax, 
in  the  county  of  Fai^ouier,  and  in  the  county  of  Loudoun,  and  numerous  other  sections, 
by  the  report  of  the  State  Superintendent  of  Public  Instruction  for  1899,  the  percentage 
of  school  attendance  on  the  part  of  the  negroes  is  better  than  that  on  the  part  of  the 
white  people.  It  is.  not,  sir,  that  they  appreciate  an  education  more  justly  than  do 
our  own  people;  but  they  value  it  differently,  and  will  make  more  sacrifices  to  obtain 
it.  It  is  a  fetich  with  thqm;  by  it  they  can  live  without  labor;  by  it  they  can  meet 
your  suffrage. 

Mr.  President,  I  have  not  been  left  to  my  own  estimates  as  to  the  efficiency  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  TIRGIXIA. 


3071 


this  suffrage  plan.  Fortunately,  I  have  estimates  upon  it  by  some  of  its  distinguished 
advocates  themselves,  its  formulators,  showing  that  whatever  other  people  might  think 
about  it  they  themselves  do  not  think  it  efficient  to  protect  the  future.  Else,  I  would 
ask,  why  incorporate  that  section  in  the  plan  v»-hich  provides  that  in  any  county  where 
the  representative  may  ask  for  it,  a  property  qualification  may  be  prescribed  for  local 
ouicers.  Does  not  this  show  that  these  gentlemen  fear  that  the  time  will  come  when 
there  will  be  counties  in  this  Commonwealth  turned  over  to  the  tender  mercies  of 
Caliban  voters  and  that  as  a  last  resort  they  will  have  to  come  to  the  Legislature  and 
ask  for  a  property  qualification  in  order  to  save  themselves?  Not  only  do  they  show 
their  faith  for  the  future  in  this,  but  many  of  them,  sir,  here  on  yesterday,  and  I  am 
glad  they  did  it,  voted  that  these  electoral  boards  throughout  the  State  of  Virginia 
should  consist  wholly  and  entirely  of  one  political  party,  and  that  the  other  party  should 
have  no  representation  thereon. 

Now,  if  they  have  settled  this  suSrage  question,  as  they  claim,  and  if  the  negro 
has  been  fixed  so  that  he  is  no  longer  a  menace  to  the  people  of  the  State,  I  would  ask, 
why  it  is  that  these  electoral  boards  could  not  have  representation  from  both  political 
parties,  so  that  a  negro  could  sit  upon  them  if  necessary,  in  order  to  see  that  his  race 
had  fairness  and  justice  done? 

Mr.  R.  L.  Gordon:  The  gentleman  will  pardon  me  for  interrupting  him.  I  merely 
vv^.nt  to  suggest  to  him  that  the  judges  will  appoint  these  boards  in  the  future;  that  it 
is  supposed  that  they  will  do  what  is  right  and  appoint  the  best  men  in  the  county. 

Mr.  Watson:  The  supposition  regarding  the  judiciary  of  this  Commonwealth,  I  am 
sure  is  well  founded;  but  I  cannot  see  that  any  possible  harm  would  come  from  the 
standpoint  of  these  gentlemen  in  not  only  supposing  that  the  judges  Vvould  do  right, 
but  in  making  them  do  right. 

Now,  sir,  if  the  electoral  boards  of  this  State  are  to  be  of  no  political  significance, 
and  are  of  no  special  value  in  this  new  system  of  ours;  if  this  race  question  is  settled, 
and  the  negro  is  no  longer  a  dangerous  factor,  why  not  pull  down  the  bars  and  let  us 
do  justice  as  betY»-een  party  and  party,  and  as  between  man  and  man?  Again,  the  gen- 
tleman./J|f'*om  Staunton  (Mr.  Braxton),  vnth  a  sense  of  hunior,  which  does  not  fail  him 
in  hard  places,  in  order  to  still  further  strengthen  the  scheme,  has  introduced  what,  in 
the  North  they  call  "  Darius  Green  and  his  counting  machine."  It  is  corporated  as 
the  last  article  of  this  plan.  It  discloses  the  fears  of  these  gentlemen  that,  after  all 
their  reading  and  w^riting  has  been  exhausted,  in  order  to  save  the  State,  they  may  yet 
have  to  import  some  "counting  machine"  invented  bj^  the  more  practical  mind  of  New 
England. 

Mr.  President,  one  other  thought,  and  I  shall  have  done.  Serious  effort  has  been 
made  in  this  Convention  to  misname  this  franchise  article.  The  gentleman  from 
Campbell  (Mr.  Daniel)  has  characterized  it  as  a  sort  of  compromise,  as  a  concession 
made  to  the  Black  Belt  of  Virginia.  I  believe  the  gentleman  from  Pulaski  (Mr.  Wysor) 
spoke  of  it  as  something  rather  against  his  grain,  but  which  he,  in  all  the  tenderness 
of  his  compassion,  was  willing  to  concede  to  the  Black  Belt.  For  the  sake  of  history, 
I  want  this  thing  named  properly;  and  I  beseech  you  men  of  the  mountains  not  to  call 
it  a  Black  Belt  measure.  Mr.  Blaine,  in  his  "  Twenty  Years  in  Congress/'  speaks  of 
the  Missouri  compromise  as  a  southern  measure,  forced  upon  the  country  by  Mr.  Monroe 
and  a  Democratic  Cabinet;  but  posterity  has  written  the  history  otherwise,  and  is  united 
in  the  opinion  that  it  was  a  concession  of  southern  patriotism  to  the  capacity  and 
ambition  of  the  northern  section.  I  will  call  your  attention  to  facts  already  published 
in  the  newspapers,  so  that  I  divulge  no  secrets  of  the  Democratic  conference,  and  say 
that  so  far  as  the  Scuthside  of  Virginia  is  concerned,  as  a  part  of  "  the  Black  Belt," 
every  single  representative  from  that  section  east  of  Campbell  and  Charlotte  counties, 
with  the  single  exception,  I  believe,  of  the  gentleman  from  Chesterfield  (Judge  Han- 
cock), voted  for  what  was  known  as  -  the  Gordon  amendment  against  this  suffrage 
article,  and  continued  to  vote  for  it  as  long  as  there  was  a  possibility  for  its  success 


3073  DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OF  VIRGINIA. 

before  that  body.  I  would  remind  you  again  that,  so  far  as  that  particular  section  is 
concerned,  when  it  came  to  a  question  as  to  whether  this  measure  should  prevail,  or 
whether  that  which  was  the  real  compromise  measure,  including  a  six-year  understand- 
ing clause,  should  succeed,  only  nine  of  the  twenty-one  representatives  from  Southside 
Virginia  voted  to  sustain  the  proposition  now  upon  the  table.  So  I  say,  Mr.  Presi- 
dent, that  what  the  Black  Belt  needs,  what  it  wanted  when  it  came  here,  and  what 
it  wants  to-day,  however  distracted  our  councils  may  have  become  in  this  body  over 
ways  and  means  to  obtain  it,  is  not  a  white  majority  in  the  State  of  Virginia,  or  in  any 
county  of  the  State  ,  however  desirable  that  may  be;  but  an  honest,  upright,  political 
life — a  government  in  which  we  can  administer  your  lawsi  faithfully,  without  fraud, 
without  perjury,  and  again  look  the  universe  in  the  face  without  shame  and  without 
reproach.  So  far  as  I  know,  sir,  no  single  representative  in  this  body  from  a  black 
county  has  ever,  as  an  original  choice,  offered  this  suffrage  article  or  any  other  suf- 
frage article  which  dealt  only  temporarily  with  the  question.  I  may  be  mistaken; 
but  I  know  of  no  one  in  this  body,  from  a  single  black  county,  whoi  has  ever  fathered 
a  measure  which  dealt  only  temporarily  with  the  suffrage,  or  who  has  sustained  this 
plan  as  a  matter  of  preference.  The  truth  is,  the  Black  Belt  delegates,  after  wearing 
themselves  to  a  frazzle  contending  for  efficient  remedies,  as  a  last  resort,  and  in  de- 
spair of  anything  better,  suffered  their  line  to  break;  and  in  the  end  many  of  them 
have  consented  to  take  this  in  preference  to  nothing.    This  is  the  whole  story. 

So  that  when  the  Herodotus  of  the  future  comes  to  record  our  annals,  instead 
of  calling  this  a  Black  Belt  suffrage,  will  he  not  rather  say,  that  one  hundred  Vir- 
ginians assembled  at  the  beginning  of  the  twentieth  century,  finding  themselves  un- 
willing, or  unable,  to  deal  efficiently  with  a  great  public  issue,  finally  chose  to  devote 
upon  their  children  a  responsibility  which  belonged  to  them;  and  to  leave  to  time 
and  chance  a  problem  created  by  man,  which  problem,  sooner  or  later,  by  man  must  be 
settled. 

Mr,  President  and  gentlemen  of  the  Convention:  For  these  and  other  reasons 
which  I  will  not  detain  you  to  state,  it  follows  that  I  shall  be  unable  to  give  my  sup- 
port to  the  suffrage  clause  in  your  Constitution;  but  on  the  contrary  I  shall  feel  im- 
pelled to  submit  it  to  the  judgment  of  my  constituents  whom  I  have  served  faithfully, 
if  not  well. 

I  beg  to  return  my  thanks  to  you  again  for  your  courtesy,  and  for  the  uniform 
kindness  and  consideration  extended  to  me  by  you,  one  and  all.  (Applause.) 

Mr.  Davis:  Mr.  President,  in  the  substitute  offered  by  the  gentleman  from  Taze- 
well, as  I  stated  this  morning,  I  would  not  move  to  amend  it,  because  there  is  no  hope 
01  it  being  adopted,  but  I  desire,  sir,  to  strike  out,  and  move  to  strike  out,  Section  3  of 
the  report.  Section  3  requires  the  future  voter  to  prepare  his  own  ballot.  I  move 
to  strike  that  out,  sir. 

The  amendm.ent  was  rejected: 

Mr.  Ingram:  Mr.  President  and  gentlemen  of  the  Convention:  I  desire  to  occupy 
your  time  for  only  a  few  moments,  that  I  may  endeavor  to  put  before  you  my  position 
with  reference  to  this  very  important  matter. 

I  wasi  one  of  those  who  signed  the  majority  plan  presented  to  this  Convention 
by  the  Committee  on  Suffrage,  which  contained  what  is  known  as  the  permanent 
-understanding  clause.  For  that  action  I  have  no  apologies  to  make.  I  have  no  with- 
drawals to  make.  I  did  what  I  thought  was  best  to  conserve  the  political  and  civil 
rights  of  all  the  people  of  Virginia,  and  especially  to  represent  the  county  of  Ches- 
terfield, the  county  of  Powhatan,  and  the  city  of  Manchester,  Vvhich  sent  m,e  as  one  of 
their  representatives  to  this  body.  Throughout  the  long  sessions  of  the  Suffrage 
Committee,  into  the  details  of  which  at  this  time  I  will  not  go,  I  have  a  conscious- 
ness of  standing  always  in  the  forefront  of  those  who  where  willing  to  take  all 
responsibility,  to  eliminate  as  a  political  factor  the  ignorant,  the  corrupt,  and  the 
venal  negro  vote.    It  was  a  question  not  of  what  I  wanted;  it  was  not  a  question  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYENTION  OF  VIRGINIA.  3073 

what  you  wanted;  but  the  impelling  cause  was  to  save  Virginia  in  the  future,  con- 
stitutionally, from  this  blighting  curse  that  had  hung  over  her  for  so  many  years. 
There  are  possibilities  of  maladministration  in  all  laws  intended  to  bring  about  this 
result,  and  there  v^ere  possibilities  of  great  good  in  the  honest  administration  of 
this  law  as  presented  to  this  Convention  by  the  majority  of  the  Committee  on  Suf- 
frage, and  so  far  as  my  people  were  concerned,  and  so  far  as  I  am  concerned,  like  the 
gentleman  from  Culpeper,  I  intended  to  see  that  the  laws  were  honestly  administered. 
But  that  is  neither  here  nor  there.  The  Democratic  members  oi  this  Convention 
in  conference  have  decided  that  they  did  not  choose  to  support  this  plan  of  the 
majority  of  the  Suffrage  Committee.  They  have  presented  instead  that  which  is 
known  as  the  Glass  plan.  That  it  does  not  fully  measure  up  to  the  requirements  of 
the  situation  I  have  no  doubt.  But  that  it  is  preferable  to  the  present  Constitution 
with  regard  to  the  suffrage,  I  have  no  doubt,  and  however  disagreeable  it  is  to  me 
to  part  from  those  gentlemen  on  that  committee  with  whom  I  served,  with  whom  I 
labored  as  best  I  could  during  these  past  months,  I  do,  at  this  time,  part  company 
with  them  on  the  ground  that  I  believe  there  is  more  efficiency  to  bring  about  the 
desired  result  in  the  plan  adopted  by  the  conference  than  they  do,  and  that  it  is 
preferable  to  the  present  law  on  the  subject. 

It  is  proper  that  I  should  make  this  statement  to  this  Convention  to  place  my 
position  clearly  before  you.  The  members  of  the  majority  Committefe  on  Suffrage  are 
aware  of  my  position,  and  have  been  for  some  time  past,  but  I  desire  you  gentlemen 
to  understand  It,  and,  whereas,  I  do  not  believe  that  the  conference  plan  measures 
fully  up  to  the  requirements  of  the  situation,  I  shall  give  it,  and  this  entire  Consti- 
tution from  the  beginning  to  the  end  the  best  support  that  I  am  capable  of  giving  it, 
and  I  hope,  and  I  believe,  that  in  the  adoption  of  this  Constitution  there  is  a  great 
deal  of  good  in  store  for  this  dear  old  Commonwealth. 

I  thank  you,  gentlemen,   for  your  attention.  (Applause.) 

Mr.  R.  Walton  Moore:  I  move  that  the  Convention  adjourn  until  to-morrow 
morning  at  10  o'clock.  I  understand  the  gentleman  from  Lynchburg  (Mr.  Glass) 
will  be  here  to-morrow  morning,  and  while  I  do  not  know,  I  think  it  possible  he  may 
wish  to  address  some  remarks  to  the  Convention. 

The  motion  was  agreed  to  and  the  Convention  adjourned  until  to-morrow,  Friday, 
April  4,  1902,  at  10  o'clock  A.  M. 

1  . 


FRIDAY,  April  4,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

ELECTIVE  FRANCHISE. 

The  President:  The  unfinished  business  before  the  Convention  is  the  further  con- 
sideration of  the  substitute  offered  by  the  gentleman  from  Tazew^ell  (Mr.  Gillespie) 
to  the  suffrage  article. 

Mr.  Hancock:  Mr.  President  and  members  of  the  Convention,  my  position  in 
reference  to  the  Constitution  we  have  been  framing  for  the  past  ten  months  has  been 
misunderstood,  and  even  misrepresented,  of  course,  unintentionally  by  the  public 
press  of  the  State  and  by  members  upon  the  floor  of  this  Convention.  I  have  been 
represented  as  being  opposed  to  any  and  every  change  in  the  present  Constitution, 
indeed  I  have  been  called  the  great  objecter  of  the  Convention,  and  as  such  I  shall 
hereafter  be  known  and  designated.  I  shall  not  attempt  to  defend  myself  against 
these  charges.    My  speeches  and  my  votes  in  the  Convention  will  show  that  I  have  pur- 


3074  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

sued  no  such  course  as  that  indicated.  I  admit  that  I  have  objected  to  and  voted 
against  many  measures  that  have  been  proposed.  But  I  assure  you  that  I  have  never 
made  a  protest  or  cast  a  vote  against  a  proposition  unless  I  believed  it  was  contrary  to 
the  best  interests  of  the  Commonvv^ealth. 

I  came  to  this  Convention  hoping  that  I  might  be  able  in  a  slight  degree  to  aid 
in  framing  a  Constitution  that  would  be  suited  to  the  present  condition  of  affairs  in 
the  State,  and  that  would  be  acceptable  to  the  people  of  the  Commonwealth.  Of 
course,  the  great  question  the  Convention  has  had  to  decide  is  the  suffrage  clause 
of  the  Constitution.  In  comparison  v/ith  this  all  other  questions  have  appeared  insig- 
nificant, indeed.  The  political  condition  in  Virginia  for  the  past  thirty-five  years  has 
been  very  unsatisfactory  to  her  good  people,  and  has  created  the  gravest  apprehen- 
sion among  her  v/isest  and  best  citizens  concerning  her  future  welfare.  As  judge 
of  one  of  the  judicial  circuits  of  this  State,  every  county  of  which  except  one,  located 
in  the  blackest  portion  of  the  Black  Belt,  for  sixteen  years,  I  have  seen  and  known 
personally  and  officially*  what  the  people  of  this  section  have  suffered  and  undergone 
by  reason  of  unlimited  negro  suffrage.  In  many  contested  election  cases  I  have  been 
compelled  to  pass  upon  questions  involving  fraud,  and  sometimes  the  decision  of  this 
question  resulted  in  Democratic  and  sometimes  in  Republican  control  of  a  city  or  a 
county.  I  endeavored  with  the  best  ability  and  in  the  fear  of  God  to  decide  these  cases 
fairly,  justly  and  impartially.  How  far  I  succeeded  my  official  record  must  determine, 
and  the  people  of  my  circuit  must  render  this  verdict.  Of  this  people  I  can  truthfully 
say  that  I  believe  that  they  are  equal  in  every  respect  to  the  best  people  in  Virginia, 
and  that,  of  course,  means  equal  to  the  best  of  the  earth. 

When,  therefore,  I  came  to  this  Convention  I  did  not  come  wholly  uninformed 
in  regard  to  the  political  situation  in  the  State,  but  it  was  not  until  I  had  been  here 
for  several  months  that  I  became  fully  aware  of  the  deplorable  condition  of  political 
affairs  in  the  Commonwealth. 

I  listened  eagerly  to  every  statement  of  fact  and  carefully  considered  every  pro- 
posed measure  of  relief.  When  the  Democratic  members  of  the  Convention  gathered 
in  conference  I  felt  like  I  was  in  a  political  hospital,  where  our  mother  State  had 
gone  for  relief  from  the  terrible  disease  from  which  she  was  suffering,  and  had  called 
her  sons  around  her  for  advice  and  for  help.  For  months  and  months  this  confer- 
vence  has  been  in  session.    Numerous  measures  of  relief  have  been  proposed. 

The  permanent  understanding  clause  has  been  again  and  again  defeated.  A  tem- 
porary understanding  clause  has  met  the  same  fate.  A  grandfather  clause  and  a  property 
clause  have  been  proposed  and  voted  down.  The  prepayment  of  the  poll-tax  and  an  educa- 
tional qualification  have  each  proved  unpopular  and  unsuccessful.  When  nothing 
seemed  feasible  and  no  relief  seemed  possible  from  this  Convention  a  compromise 
w^as  happily  effected  between  the  contending  factions  and  a  suffrage  clause  agreed  upon 
and  reported  to  the  Convention.  This  plan  was  not  acceptable  to  all  of  the  Demo- 
cratic members.  Efforts  have  been  made  to  strike  out  various  provisions  of  this 
plan,  and  in  some  respects  it  has  been  amended.  The  question  is  nov/  upon  its  final 
adoption  and  incorporation  into  the  Constitution. 

The  defeat  of  this  plan  means  the  continuance  of  the  Underwood  Constitution 
in  regard  to  suffrage  and  a  continuation  of  the  fraudulent  election  methods  of  the 
last  thirty-five  years.  The  issne  is  certain  and  definite,  and  must  be  met  fairly  and 
fully.  Is  it  better  to  allow  the  conditions  as  they  now  exist  to  remain,  or  endeavor  to 
improve  them  by  the  methods  proposed  in  this  compromise  plan?  It  is  contended 
that  this  plan  will  be  productive  of  fraud,  but  no  one  is  bold  enough  to  assert  on 
this  floor  that  the  fraud  thereunder  will  in  any  degree  compare  with  that  now  prac- 
ticed in  the  Commonwealth.  It  has  come  to  a  point  where  it  is  a  choice  between  two 
evils,  and  a  decision  must  be  made.  The  compromise  plan  in  many  respects  is  very 
objectionable  to  me,  and  I  have  heretofore  urged  my  objections  to  It  on  the  floor  of 
the  Convention. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3075 

But  I  am  now  confronted  with  the  question,  "Is  this  suffrage  clause  unconstitu- 
tional on  its  face,  or  will  its  constitutionality  depend  upon  its  administration? "  I 
believe  all  the  best  lawyers  of  this  body  consider  the  plan  constitutional  on  its  face. 

As  to  the  administration  of  this  temporary  understanding  clause,  the  members  of 
this  Convention  themselves  have  assiumed  the  responsibility  and  have  agreed  to  select 
the  men  who  are  to  put  it  into  operation.  If  the  memxbers  of  this  body  cannot  b© 
trusted,  then  none  of  the  citizens  of  this  Commonwealth  can  be  relied  upon  to  protect 
her  interests.  Another  question  presents  itself  to  each  one  of  us  for  an  immediate 
answer.  Will  you  sign  this  Constitution  and  support  it  before  the  people  with  this 
suffrage  clause  in  it?  If  you  will,  then  why  not  support  it  now,  and  assume  its 
responsibility  and  increase  the  majority  in  its  favor.  In  answer  to  this  question, 
Mr.  President,  I  most  positively  and  emphatically  answer  that  it  is  my  purpose  and 
mtention  to  sign  this  Constitution  if  this  suffrage  clause  is  placed  in  it,  and  to  support 
it  before  the  people  with  all  the  power  and  influence  I  possess.  (Applause.)  Patrick 
Kenry  in  the  first  Continental  Congress,  when  the  question  of  State  rights  seemed 
about  to  destroy  all  hope  of  a  Federal  union,  exclaimed  in  words  of  inspiration  and 
eloquence,  "The  wrongs,  the  oppression  and  the  tyranny  of  Great  Britain  make  me 
forget  that  I  am  a  Virginian,  and  cause  me  to  glory  in  being  an  American,  in  order 
that'  the  liberties  of  all  the  colonies  may  be  preserved."  When  I  look,  Mr.  President, 
at  the  awful  and  horrible  condition  of  affairs  in  this  Commonwealth  under  the  pres- 
ent Constitution  I  forget  my  prejudices,  I  forget  my  preferences  for  any  plan  or  policy, 
and  rejoice  to  know  that  I  am  able  to  join  hands  with  my  Democratic  brethren  in 
an  effort  to  purify  the  political  atmosphere  of  this  State  and  to  give  peace,  prosperity 
and  happiness  to  all  the  citizens  of  our  beloved  Commonwealth.    (Great  applause.) 

Mr.  Glass:  Mr.  President  and  gentlemen  of  the  Convention,  it  had  been  my 
purpose,  when  this  stage  of  the  suffrage  question  was  reached,  to  make  s.uch  a  general 
and  detailed  defense  of  the  scheme  now  about  to  be  adopted  as  was  made  by  me  before 
the  Suffrage  Conferences  of  the  dominant  political  party  at  the  time  this  plan  of  fran- 
chise was  first  presented,  and  at  a  subsequent  period  of  our  deliberations.  Upon 
reflection  it  has  occurred  to  m'e  that  such  a  discussion  of  the  question  as  I  have 
indicated  would  serve  no  good  purpose  here;  but  might  be  considered  inopportune, 
if  not  injudicious.  To  what  end,  I  may  ask,  is  it  needful  that  I  should  adduce  facts 
and  figures,  reinforced  by  argument  and  illustration,  to  establish  beyond  contraven- 
tion the  efficiency  of  the  plan  of  suffrage  now  to  be  embodied  in  the  Constitution? 
Such  a  presentation  would  not  convince  those  members  of  the  Convention  who'  long 
ago  staked  their  judgment  upon  a  much  more  drastic  scheme  and  who,  from  first  to 
last,  in  conference  and  in  Convention,  have  expended  their  indignation  against  the 
conservatism  that  conceived  and  the  persistence  that  led  to  the  triumph  of  this  plan  over 
theirs. 

Moreover,  Mr.  President,  when  men  of  our  own  race  and  clan,  in  the  bitterness 
of  their  disappointm.ent,  hesitate  not  to  characterize  the  work  of  our  hands  in  terms 
of  opprobium,  charging  upon  the  architects  of  this  franchise  article  a  degree  of  impo- 
tency  verging  on  imbecility,  what  answer  ca.n  be  made  that  will  not  necessarily  exas- 
perate the  feeling  of  resentment  betokened  by  declamation  of  that  lurid  description? 
And  did  we,  by  proof,  seek  once  again  and  in  this  forum,  to  persuade  these  friends 
that  this  plan  of  suffrage,  representing  the  deliberate  judgment  and  indisputable 
patriotism  of  their  Democratic  brethren,  is  sufficient  for  its  purpose  and  skillfully 
adapted  to  afford  them  relief,  how  much  fiercer  would  be  the  assault  of  enraged 
partisans  of  a  different  faith,  and  how  much  surer  and  swifter  organized  litigation? 
We  do  not  need  to  convince  the  friends  and  advocates  of  this  scheme.  (Applause.) 
That  has  been  done  by  patient  investigation  and  months  of  exhaustive  consideration. 
The  allegations  and  the  arguments,  the  statistics  and  the  deductions,  embodied  in 
the  carefully  prepared  address  of  the  delegate  from  Norfolk  (Mr.  Thom),  who  led 
the  opposing  Democratic  forces,  were  heard  with  respect,  examined  with  the  keenest 


3076  DEBATES  OF  THE  CO^v^STITUTIOJ^AL  CONVENTION  OF  VIRGINIA. 

interest,  weighed  and  pondered  seriously  by  those  who  now  espouse  this  plan.  Behind 
them  were  the  character  and  reputation  of  a  man  standing  in  the  van  of  the  con- 
structive  minds   of   the   Convention.    (Applause.)    In   their   presentation  were  the 
force  and  fire  and  eloquence  of  a  patriot  and  polemic.    But  every  assault  on  the 
pending  scheme  was  met,  every  material  argument  against  it  controverted,  belief 
in  its  efficiency  became  settled  conviction;  and  now  it  is  presented  to  the  Convention 
as  the  best  available  expedient  to  free  this  Commonwealth  from  a  political  system 
which  was  devised  by  its  enemies  as  an  instrument  of  tyranny,  and  is  now  utilized  by 
its  own  citizens  for  purposes  of  fraud.    (Applause.)    If  we  may  safely  be  guided 
by  the  light  of  experience,  if  we  may  believe  the  testimony  of  trustworthy  men  who 
have  encountered  and  triumphed  over  difficulties  more  pronounced  than  our  own;  if 
we  may  accept,  with  any  degree  of  confidence,  indis^putable  facts  and  figures  relat- 
ing to  this  very  problem  as  treated  in  other  States,  the  arguments  that  have  been 
offered  in  support  of  this  plan  as  being  thoroughly  well-designed  to  cope  with  adverse 
social  and  political  conditions  in  Virginia  amount  to  an  actual  demonstration.  (Ap- 
plause.)   We  feel  absolutely  certain  of  its  efficiency.    We  believe  it  will,  if  incor- 
porated in  the  Constitution  as  the  article  of  suffrage,  emancipate  the  mind  and  make 
free  the  action  of  the  dominant  race  in  this  State,  restoring  to  us  the  n~atural  right 
and  inestimable  blessing  of  independent  thought  and  conduct  upon  the  great  economic 
and  political  issues  of  our  time.    I  prophesy,  gentlemen  of  the  Convention,  that  not 
ten  years  will  have  elapsed  before  the  people  of  Virginia  will  feel  as  free  as  the 
people  of  any  State  in  the  Union  to  consider  and  decide  public  questions  upon  the 
naked  issues  involved;   and  I  predict,  further,  that  we  shall  not  again  witness  a 
political  campaign  projected  in  Virginia  on  the  question  of  race  domination.  This 
plan  of  popular  suffrage  will  eliminate  the  darkey  as  a  political  factor  in  this  State  in 
less  than  five  years,  so  that  in  no  single  county  of  the  Commonwealth  will  there  be 
the  least  concern  felt  for  the  complete  supremacy  of  the  white  race  in  the  affairs 
of  governmment.    And  next  to  this  achievement  in  vital  consequence  will  be  the 
inability  of  unworthy  men  of  our  own  race,  under  altered  conditions,  to  cheat  their  way 
into  prominence.    Our  politics  will  be  purified  and  the  public  service  strengthened. 

Mr.  President,  the  assaults  upon  this  plan  of  Siuffrage  have  been  of  a  varied  nature. 
It  has  been  attacked  from  one  direction  because  it  does  not  contain  a  permanent 
"understanding  clause,"  and  from  another  side  because  it  does  contain  a  temporary 
"understanding  clause."  Some  gentlemen  assail  it  because  it  makes  prepayment  of 
the  poll-tax  a  prerequisite  to  the  right  of  suffrage,  and  others  because  it  does  not 
exact  the  prepayment  of  all  taxes  as  a  prerequisite  to  the  right  of  suffrage.  Objec- 
tion is  heard  because  ownership  of  property  is  employed  to  enlarge  tho  body  of  voters; 
and,  again,  criticism  is  made  because  property  is  not  used  as  an  exclusive  qualifica- 
tion of  voters.  One  section  wants  manhood  suffrage,  which  for  another  section  would 
mean  either  negro  supremacy  or  continued  revolutionary  control  by  the  whitesi. 
We  are  thus  between  the  cross-fire  of  those  who  protest  that  the  scheme  is  too  drastic 
in  the  elimination  of  the  ne^ro  and  those  who  think  it  is  not  drastic  enough.  But, 
Mr.  President,  in  the  midst  of  dift'ering  contentions  and  suggested  perplexities,  there 
stands  out  the  uncontroverted  fact  that  the  article  of  suffrage  which  tne  Convention 
will  to-day  adopt  does  not  necessarily  deprive  a  single  white  man  of  the  ballot,  but 
will  inevitably  cut  from  the  existing  electorate  four-fifths  of  the  negro  voters.  (Ap- 
plause.) That  was  the  purpose  of  this  Convention;  that  will  be  the  achievement. 
Mr.  Pedigo:  Will  it  not  be  done  by  fraud  and  discrimination? 
Mr.  Glass:  By  fraud,  no;  by  discrimination,  yes.  But  it  will  be  discrimination 
within  the  letter  of  the  law,  and  not  in  violation  of  the  law.  Discrimination!  Why, 
that  is  precisely  what  we  propose;  that,  exactly,  is  what  this  Convention  was  elected 
for — to  discriminate  to  the  very  extremity  of  permissible  action  under  the  limitations 
of  the  Federal  Constitution,  with  a  view  to  the  elimination  of  every  negro  voter  who 
can  be  gotten  rid  of,  legally,  without  materially  impairing  the  numerical  strength  of 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOX  OF  VIEGIXIA. 


3077 


the  white  electorate.  As  has  been  said,  we  have  accomplished  our  purpose  strictly 
within  the  limitations  of  the  Federal  Constitution  by  legislating  against  the  character- 
istics of  the  black  race,  and  not  against  the  "race,  color  or  previous  condition"  of 
the  people  themselves.  It  is  a  fine  discrimination,  indeed,  that  we  have  practiced  in 
the  fabrication  of  this  plan;  and  now,  Mr.  President, "  we  ask  the  Convention  to  con- 
firm our  work  and  emancipate  Virginia.    I  ask  for  a  vote  on  the  article  of  suffrage. 

The  President:  The  question  is  on  agreeing  to  the  substitute  offered  by  the  gen- 
tleman from  Tazewell. 

The  question  having  been  taken,  the  result  was  announced — ayes,  5;  noes,  66 — as 
follows : 

Ayes — Messrs.  Bristow,  Davis,  Earman,  Mundy,  and  Phillips — 5. 

Noes — Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barbour,  Bar- 
ham,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Boaz,  Bouldin,  Braxton,  Brooke,  Brown,  P. 
W.  Campbell,  Cobb,  Crismond,  Dunaway,  Eggleston,  Epes,  Fairfax,  Fletcher,  Garnett, 
Gilmore,  Glass,  B.  T.  Gordon,  R.  L.  Gordon,  Green,  Gregory,  Gwyn,  Hancock,  Hardy, 
Hooker,  Hubard,  Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Keezell,  Kendall,  ^  Lawson, 
Lindsay,  Lovell,  Marshall,  Mcllwaine,  Meredith,  Miller,  Moncure,  R.  Walton  Moore, 
O'Plaherty,  Parks,  Pettit,  Pollard,  Portlock,  Quarles,  Rives,  Smith,  Stebbins,  Tarry, 
Thornton,  Turnbull,  Waddill,  Walker,  Watson,  Willis,  Wise,  Woodhouse,  and  the  Presi- 
dent—66 

The  substitute  was  rejected. 

Mr.  Blair:  Mr.  President  and  gentlemen,  I  congratulate  you,  gentlemen,  upon 
the  near  completion  of  your  arduous  task.  For  nearly  ten  months  you  have  been  en- 
gaged in  a  serious  work,  a  work  of  such  vital  importance  to  our  State's  future  wel- 
fare that  conservative  citizens  will  await  the  result  with  solicitude  and  apprehension. 
Constitutional  revision  is  attended  by  such  grave  consequences  that  it  should  never 
be  undertaken  unless  necessitated  by  existing  conditions  otherwise  incapable  of  being 
remedied. 

The  organic  law  fixes  the  rights  and  limits  the  body  politic.  It  is  the  founda- 
tion stone,  upon  the  stability  of  which  depends  the  safety  and  substantiality  of  the 
whole  political  superstructure.  When  mankind  renounced  his  nomadic  life,  where 
might  made  right,  and  the  weak  were  subservient  to  the  strong,  to  enter  into  a  state 
of  society,  he  was  actuated  by  the  law  of  self-preservation.  To  the  keeping  of  that 
society  he  entrusted  his  God-given  rights  of  life,  liberty  and  the  pursuit  of  happiness, 
and  from  that  prehistoric  period  to  the  present  this  compact  has  never  been  broken, 
or  this  trust  violated  without  causing  Siocial  upheavals  and  political  revolutions. 

It  is,  therefore,  strongly  incumbent  upon  society  to  keep  inviolate  such  sacred  obli- 
gations that  involve  the  very  existence  of  the  whole  social  fabric.  I  do  not,  however, 
stand  here  to-day,  Mr.  President  and  gentlemen,  to  criticise  and  condemn  the  result 
of  your  labors,  or  to  cast  aspersions  upon  the  political  party  whose  members  domi- 
nate and  dictate  the  policies  of  this  Constitutional  Convention.  The  Convention  is 
controlled  by  older  and  wiser  heads  than  mine.  In  fact,  I  must  confess  to  consider- 
able hesitation  before  I  decided  to  undertake  to  express  my  views  on  the  particular 
portion  of  the  Constitution  we  now  have  under  consideration. 

The  rights  of  civil,  political  and  religious  liberty  are  so  intimately  interwoven 
that  it  is  exceedingly  difiicult  to  deny  or  abridge  one  without  affecting  the  other. 
All  are  equally  precious  and  essential  to  an  ideal  citizenship,  and  the  curtailment  of 
any  constitutional  regulation  suggests  tyranny  and  despotism. 

Political  liberty  is  the  boasted  characteristic  of  a  republican  form  of  government, 
and  unfair  discrimination  in  its  exercise,  as  a  rule,  merits  and  meets  with  proper 
rebuke.  At  the  time,  I  was  of  the  opinion  that  this  Constitutional  Convention  was 
convoked  and  convened  for  the  deliberate  and  premeditated  purpose  of  violating  the 
Constitution  of  the  United  States,  the  supreme  law  of  our  land,  and  after  learning 
the  result  of  the  efforts  to  abridge  the  suffrage,  I  am  now  satisfied  that  that  purpose 


3078 


DEBATES  OF  THE  CON"STITUTIO]SrAL  CONVENTIOi^  OF  VIRGINIA. 


bids  fair  to  accomplish  it.  It  only  needs  the  finishing  touches  of  the  administrative 
election  officer  to  launch  it  on  its  course  of  crime  and  corruption.  To  me  the  most 
objectionable  feature  of  the  contemplated  proposition  is  the  so-called  "temporary 
understanding  clause." 

How  any  representative  from  a  white  district  could  have  sanctioned  such  a  meas- 
ure is  bej-ond  my  comprehension.  Did  he  not  realize  at  the  time  that  the  right  to 
vote  of  thousands  upon  thousands  of  the  white  citizens  of  this  Commonwealtli  was  made 
dependent  upon  the  dishonesty  of  the  registrars  of  election?  It  has  also  occurred  to  me 
that  our  distinguished  President  and  several  other  prominent  members  of  this  Convention 
should  also  be  concerned  about  the  sanctity  of  their  promises  to  the  people  of  Vir- 
ginia, given  during  the  heat  and  excitement  of  the  recent  political  campaign,  and 
thereby  causing  a  successful  rally  to  the  Democratic  standard  of  their  disordered 
forces  and  restoring  confidence  to  an  alarmed  constituency. 

How  could  those  honorable  gentlemen  trust  the  inviolacy  of  their  promises  that 
"no  white  voters  would  be  disfanchised"  to  the  dishonesty  of  the  registrars  of  election? 

For  the  sake  of  illustration,  let  us  take  the  opposite  ass.umption  from  that  evi- 
dently taken  by  your  suffrage  caucus,  namely,  that  the  registrars  to  be  appointed  will 
be  men  of  honor  and  of  character,  what  will  be  the  result?  Why,  the  white  voter 
will  be  judged  by  the  same  criterion  as  the  black,  and  in  the  section  from  which  I 
come  the  poor  white  man,  and  not  the  negro,  will  be  the  victim  of  this  vain  and 
abortive  attempt  to  evade  the  Constitution  of  the  United  States. 

I  cannot  but  conclude  from  a  perusal  of  the  proposed  scheme,  that  the  caucus, 
after  many  weary  hours  in  a  hopeless  effort  to  disfranchise  the  negro  and  save  the 
white  man,  finally  recognized  that  hopelessness,  and,  not  being  able  to  accomplish  the 
object  by  constitutional  provision,  decided  to  do  so  by  political  legerdemain,  otherwise 
you  could  not  have  agreed  to  jeopardize  the  rights  of  so  many  illiterate  white  voters. 
In  my  county  many  must  lose  their  right  of  franchise,  if  the  law  is  impartially  ad- 
ministered. And  this  understanding  clause  must  fall  heavily  on  those  who  are  the 
least  prepared  to  bear  it.  The  poor  man  has  no  opportunity  to  acquire  such  required 
understanding.  Besides,  while  education  is  conducive,  it  is  certainly  not  essential,  to 
good  citizenship.  I  do  not  consider  that  it  is  necessary  to  discuss  any  other  demerit 
of  the  suffrage  proposition.  The  understanding  clause  contains  enough  poison  to 
affect  the  whole  body  politic.  It  is  the  lever  by  which  designing  politicians  will  raise 
themselves  to  office  over  the  rights  and  wishes  of  the  people.  Indeed,  it  is  yevy  sug- 
gestive of  force  bills  and  Federal  bayonets,  which  none  of  us  would  like  to  see.  Give 
me  the  registrars  of  election  to  do  my  bidding,  and,  politically  speaking,  I  will  hold 
the  State  of  Virginia  in  the  palm  of  my  hand.  They  will  disfranchise  and  enfran- 
chise to  suit  their  political  ends,  ad  libitum.  The  Democratic  party  must  have  known 
at  the  time  it  pledged  itself  to  preserve  the  franchise  to  the  white  man  and  take  it 
from  the  black,  that  they  were  as  impotent  to  everride  the  Fifteenth  Amendment  to 
the  Constitution  of  the  United  States  as  is  old  ocean  to  overturn  Gibraltar's  famous 
rock.  R  stands,  whether  rightfully  or  wrongfully,  as  a  bulwark  against  constitutional 
discrimination,  and  until  its  repeal  any  attempted  evasion  is  bound  to  prove  abortive. 
You  have,  therefore,  deceived  the  people,  and  upon  you  rests  the  blame.  If  you  will 
allow  a  Republican  to  suggest  a  few  lines  to  your  suffrage  plan  I  would  call  upon 
the  immortal  Scott  to  help  me,  and  at  the  bottom  of  your  suffrage  clause  I  would  add: 

"  Oh,  what   a  tangled  web  we  weave. 
When  first  we  practice  to  deceive." 

Mr.  President,  before  this  measure  is  incorporated  into  our  organic  law  let  us 
pause.  It  is  true  that  the  race  problem  is  assuming  grave  proportions.  But  let  us 
look  at  the  other  States  who  have  been  confronted  by  similar  or  worse  conditions, 
and  what  have  they  done?  Surely,  old  Virginia,  the  mother  of  States  and  statesmen, 
will  not  stoop  to  the  methods,  adopted  by  the  other  States  which  have  had  to  deal 


DZBATZS  or  THE  C0X5IIIUII0XAL  COXVZXIIOX  01  TIEGIXIA. 


3ori> 


■^viih  this  Quesiion.  Mr.  President,  the  eyes  of  the  nation  are  upon  us.  Upon  the 
wisdom  of  our  decision  in  this  matter  depends  the  laudation  or  condemnation  of  the 
country  at  large.  Let  not  the  old  State,  that  has  so  long  been  such  a  jevrel  in  Colum- 
bia's diadem,  stoop  to  artifice  and  subterfuge. 

But  we  are  told  that  the  people  demand  that  vre  take  such  action.  The  people! 
The  people:    How  many  crimes  are  committed  in  their  name! 

The  deceitful  shout  that  echoed  around  the  palace  on  the  day  that  Rienzi,  the  last 
of  the  Roman  patriots,  was  assassinated  was  "Tivol  populi,'"  but  with  the  death  of 
Pdenzi  the  feeble  spark  of  political  freedom  vras  quenched  and  the  sun  of  Rome's 
liberty  set  forever.  YvTiat  the  people  demand  is  a  free  ballot.,  a  fair  count,  and  to  be 
represented  by  candidates  of  their  choice. 

Certainly  the  understanding  clause  will  never  accomplish  the  desired  end. 

Before  you  subject  the  dearest  right  of  our  humble  citizens  to  the  caprice  and 
corruption  of  a  dishonest  election  oScer,  gentlemen  of  the  Convention,  I  ask  you  to 
pause. 

Come  with  me  for  a  moment,  away  from  the  miasma,  peanuts  and  politics  of  East- 
ern Virginia,  to  the  rugged  mountains  of  the  Southwest,,  with  its  bluegrass  hills  and 
fertile  valleys,  watch  the  setting  sun  as  he  paints  his  gorgeous  colors  on  the  distant 
horizon  and  the  blue  skies  turn  to  gold,  truly  the  ideal  home  of  a  free  and  happy 
people.  They  worship  nature  and  nature's  God,  and  rejoice  in  the  freedom  of  a  re- 
publican form  of  government,  and  until  modern  election  methods  invaded  that  favored 
section,  debauching  our  citizenship  and  corrupting  our  young  men,  my  people  were 
allowed  to  designate  their  representatives  uncorrupted,  undefled.  They  have  been 
led  to  expect  a  betterment  of  existing  conditions,  but,  alasl  they  are  doomed  to  be 
dec-eived.  Among  my  people  are  those  who  do  not  come  up  to  your  constitutional  re- 
quirements for  suffrage.    They  are  poor,  humble,  but  honest,  but 

'■"  Let  not  ambition  mack  their  useful  toil, 
Their  homely  virtues  or  destiny  obscure; 
Or  grandeur  hear  with  a  disdainful  smile 
The  short  and  simple  annals  of  the  poor." 

Some  do  not  own  suficient  property.  Some  were  not  soldiers,  and  are  not  sons 
of  soldiers.  Many  will  be  unable  to  meet  the  poll-tax  requirement,  and,  lastly,  hun- 
dreds  will  fail  "'to  understand." 

"Some  time  we'll  understand,"  but  it  won't  be  the  Republican  voter  who  applied 
to  a  Democratic  registrar  of  election  to  construe  the  Constitution. 

But  I  realize,  Mr.  President  and  gentlemen  of  the  Convention,  that  any  attempt 
on  my  part  to  change  or  modify  the  result  will  be  futile.  '•The  hand,  having  written, 
will  not  return  to  erase  the  mark." 

I  will  not  attempt  to  pass  judgment  on  your  action.  Time  will  demonstrate  the 
wisdom  or  the  unwisdom  of  what  you  have  accomplished.  But  I  cannot  help  believ- 
ing that  if  you  place  this  understanding  clause  upon  the  people  of  this  old  Common- 
v-ealth  that  the  hand  of  posterity  will  write  it§~  verdict  on  the  walls  of  the  Temple 
of  Civilization  in  the  words  that  appeared  to  Belshazzar  of  old:  •'■  Mene,  mene,  tekel 
upharsim."  Towards  the  members  of  the  Convention  I  have  only  the  friendliest  feel- 
ings, but  to  some  of  their  politics  I  am  unalterably  opposed. 

TVe  are,  however,  Mr.  President  and  gentlemen,  all  Virginians,  and  I  know  of  no 
better  rs.rting  injunction  than  that  which  Shakespeare  puts  into  the  mouth  of  TTooles- 
ley  to  Cromwell: 

'"Ee  just  and  fear  not.  Let  all  the  ends  thou  aims't  at  be  thy  country's  thy 
God's  and  truth's,  and  then  if  thou  fall'st,  oh,  Cromvrell,  thou  fall'st  a  blessed  martyr." 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  the  suffrage  plan 
proposed  by  the  gentleman  from  Lynchburg  (Mr.  Glass). 

The  question  having  been  taken,  the  result  vcas  announced — ayes,  59;  noes,  20 — as 
follows: 


3080  DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIJs'IA. 


Ayes — Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barham,  Manly 
H.  Barnes,  Thomas  H.  Barnes,  Bouldin,  Braxton,  Brown,  Cameron,  P.  W.  Campbell, 
Carter,  Cobb,  Dunaway,  Eggleston,  Fairfax,  Fletcher,  Garnett,  Gilmore,  Glass,  B.  T. 
Gordon,  James  W.  Gordon,  Gregory,  Hancock,  Hardy,  Hatton,  Hooker,  Hubard,  Hunton, 
Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Keezell,  Kendall,  Lawson,  Lindsay,  Lovell, 
Meredith,  Miller,  R.  Walton  Moore,  O'Flaherty,  Parks,  Portlock,  Quarles,  Rives,  Smith, 
Stebbins,  Tarry,  Thornton,  Tiirnbuil,  Walker,  Willis,  Wise,  Withers,  Woodhouse,  Wysor, 
Yancey,  the  President — 59. 

Noes — Messrs.  Barbour,  Bristow;-  Brooke,  C.  J.  Campbell,  Crismond,  Davis,  Earman, 
Green,  Gwyn,  Hamilton,  Marshall,  Mcllwaine,  Moncure,  Thomas  L.  Moore,  Mundy, 
Phillips,  Pollard,  Summers,  Waddill,  Watson— 20. 

The  article  proposed  by  Mr.  Glass  was  adopted.  (Applause.) 

Mr.  Glass:  I  move  that  the  article  be  printed  and  referred  to  the  Committee  on 
Final  Revision. 

The  motion  was  agreed  to. 

The  next  business  in  order  is  the  consideration  of  the  resolution  offered  by  the 
gentleman  from  Wythe  (Mr.  Blair)  proposing  a  change  of  the  rules.  The  Secretary 
v/iil  read  the  resolution. 

Before  any  action  of  the  Convention  can  be  rescinded  two-thirds  of  the  members 
present  shall  be  recorded  in  affirmative. 

Mr.  Ayers:  I  desire  to  state  to  the  Convention,  Mr.  President,  that  there  is  no 
use  in  adopting  that  provision.  There  is  no  use  in  a  majority  of  this  Convention  tying 
the  hands  of  a  subsequent  majority.  That  is  a  proposition  that  cannot  be  denied. 
Rules  are  merely  directory.  They  cannot,  in  the  very  nature  of  things,  be  mandatory, 
and  being  directory  it  is  in  the  power  of  a  majority  of  the  Convention  at  any  time 
to  disregard  them.  It  would  be  a  waste  of  time  to  discuss  and  pass  this  resolution, 
because  if  a  measure  came  up  which  had  been  passed  upon,  and  the  Chair  feeling 
bound  by  the  rule,  should  refuse  to  consider  it,  an  immediate  appeal  from  that  de- 
cision would  be  decided  by  a  majority,  and  the  Convention  would  then  go  on  as  it  has 
n  right  to  do,  and  determine  by  a  majority  the  question  proposed.  Therefore,  it  is 
idle  for  us  to  waste  time  in  attempting  to  pass  such  a  resolution. 

The  question  having  been  taken,  the  result  was  announced — ayes,  25;  noes,  44. 

The  resolution  was  rejected. 

The  President:  The  Secretary  will  read  the  resolution  offered  by  the  gentleman 
from  Brunswick. 

Resolved.  That  the  action  of  the  Convention  on  Saturday  last  in  changing  rale 
9  be,  and  the  same  is  hereby,  rescinded. 

Mr.  TurnbuU:  Mr.  President,  I  simply  wish  to  explain  in  a  few  words  what  our 
rules  are,  and,  as  best  I  can,  what  I  think  the  effect  will  be  if  we  do  not  stand  by 
those  rules. 

If  the  Convention  will  give  me  its  attention  for  a  few  minutes  I  think  I  can 
explain  the  matter.  Tlie  Convention  will  remember  that  when  the  Committee  on 
Rules  was  appointed  to  fix  rules  for  the  guidance  of  this  body,  the  Convention  took 
a  recess  for  three  days,  in  order  that  opportunity  might  be  given  to  the  members  of 
that  committee  to  frame  those  rules.  I  had  the  honor  to  be  a  member  of  the  commit- 
tee, and  I  spent  two  days,  and  better,  in  examining  into  rules  governing  bodies  such 
as  this.  It  was  the  first  tim.e  I  had  ever  given  attention  to  the  subject,  and  I  knew 
nothing  in  the  world  as  to  thia  matter  of  rules.  But  I  took  the  rules  which  were 
formulated  for  the  government  of  the  Convention  of  1829,  I  took  the  rules  which  were 
formulated  for  the  government  of  the  Convention  of  1850-'51;  I  took  the  rules  which 
had  been  established  for  the  government  of  parliamentary  bodies  of  all  kinds,  and  I 
examined  them  carefully.  The  object  which  the  committee  had  in  view  in  fixing  rules 
for  the  government  of  this  body,  like  the  object  to  be  reached  in  every  other  body  of 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIEGIXIA. 


30S1 


the  same  naiure,  yras  to  give  ample  consideration  to  the  measures  presented  to  the 
Convenrion  for  it  to  pass  upon.  I  want  to  state  that  this  committee  in  fixing  these 
rules  went  far  beyond  anything  ever  done  by  any  other  convention  previously  in  Vir- 
ginia, or  in  any  other  place,  to  give  full  opportunity  for  the  due  consideration  of  all 
matters  presented  before  it;  and  I  want  to  show  ihat  the  committee  had  in  view  the 
utmost  care  in  the  consideration  of  all  measures.  I  want  to  show  thai  the  rules  estab- 
lished by  the  Convention  of  lSoO-"ol  and  by  the  Convention  of  lS29--"30,  were  difierent 
from  the  rules  we  established  in  so  far  as  we  gave  to  this  Convention  the  power  to 
more  carefully  consider  all  matters  than  either  of  those  did.  Now,  what  do  you  estab- 
lish rules  for?  It  is  for  the  government  of  the  body  in  framing  the  measures  that 
are  before  it.  Every  body  that  meets  must  pass  rules  for  its  government,  and  of 
necessity,  the  body  acts  under  those  rules  in  fixing  the  provisions  of  any  instrument 
which  it  is  to  frame.  Now.  Air.  President,  what  are  we  asked  to  do  in  this  matter? 
We  are  asked,  after  we  have  framed  the  Constitution,  article  by  article,  and  section 
b:.  section,  to  frame  another  set  of  rules,  to  do  what?  To  do  away  with  what  we 
have  already  done.  In  other  words,  we  are  asked  by  these  gentlemen,  gravely,  after 
we  have  made  a  Constitution  under  our  rules,  to  go  to  work  and  make  another  set 
of  rules  by  which  to  rescind  and  do  away  with  what  we  have  already  done.  I  say 
that  such  a  proceeding  has  never  been  heard  of  in  any  parliamentary  body  of  any  sort. 

]\Ir.  Walker:  Under  the  rules  which  the  gentleman  helped  to  make  we  could  do 
that  very  thing,  as  I  understand  the  only  difference  being  that  after  we  took  the  matter 
out  of  the  Constitution  we  could  not  put  anything  in  its  place. 

Mr.  Turnbull:  That  is  where  the  gentleman  is  mistaken  in  reference  to  the 
rules,  and  I  want  to  explain  to  this  body  the  methods  which  we  have  provided  by 
which  measures  can  be  reconsidered  if  the  body  thinks  proper.  Under  general  parlia- 
mentary law  where  you  frame  rules  such  as  we  have  fram.ed.  they  cannot  be  sus- 
pended at  all  except  by  unanimous  consent.  In  the  Convention  of  1S29  and  in  the 
Convention  of  1S50.  they  had  no  such  rule.  We  have  a  provision  allowing  the  rules  of 
the  Convention  to  be  suspended  by  a  vote  of  two-thirds  of  the  members  present.  In 
the  Convention  of  lS50-'ol  and  in  the  Convention  of  1529-'30.  they  had  what  was  then 
known  as  Rule  S,  which  read  as  follows: 

A  question  onoe  determined  must  stand  as  the  judgment  of  the  Convention,  and 
shall  not  again  be  drawn  into  debate.  The  committee  which  framed  your  rules  thought 
that  did  not  go  far  enough,  and  they  added  to  that  rule  these  words :  "  Except  on  a 
motion  to  reconsider  or  rescind." 

They  had  another  clause  that  they  added  to  Rule  6.  which  was  different  from  that 
adopted  under  the  convention  herefore  held  in  Virginia,  that: 

All  reports  of  standing  committees  relating  to  changes,  amendments,  alterations, 
or  provisions  of  the  Convention,  shall  be  referred  to  the  Committee  of  the  Whole,  with- 
out debate. 

There  was  no  such  rule  as  that  in  either  the  Convention  of  lS-s^-'30  or  the  Con- 
vention of  1S50-'51.  What  is  the  object  which  we  had  in  view?  It  was,  in  the  first 
place,  to  have  these  various  provisions  of  this  Constitution  carefully  considered  by 
a  committee  appointed  for  that  purpose,  eacn  committee  consisting.  I  think,  of  eleven 
members,  except  the  Committee  on  Suffrage.  Then  they  c-ame  to  the  Convention  and 
referred  the  matter  to  the  Committee  of  the  AMiole,  where  they  could  have  unlimited 
debate,  where,  after  the  question  had  been  acted  on.  a  motion  to  reconsider  could  be 
made,  and  then  a  second  debate  had  upon  that  motion  to  reconsider.  We  went  through 
all  that  procedure,  and  then  when  you  came  to  the  Convention  again,  you  had  another 
careful  consideration  of  the  matter,  and  then  again  an  opportunity  to  debate  on  a 
motion  to  reconsider.  So  that  we  had  the  consideration  of  these  matters  before  the 
committee,  a  consideration  of  these  matters  before  the  Committee  of  the  Whole,  and 
194 — Const.  Deb. 


3082 


DEBATES  OE  TELE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


a  consideration  of  these  matters  before  the  Convention  itself.  What  then  did  the 
rule  say?  If  the  Convention  thought  it  best  to  reconsider  any  matter  which  it  had 
acted  upon,  what  did  the  rule  say?  That  it  should  rescind?  Not  a  bit  of  it,  but  that 
the  only  remedy  was  by  a  motion  to  suspend  the  rules,  in  order  to  reconsider  any 
matter  that  the  Convention  thought  proper  to  reconsider.  Was  not  that  proper?  It 
required  another  thing,  that  a  motion  to  suspend  the  rules  should  require  the  votes 
of  two-thirds  of  the  members  present.  Now,  I  ask  you,  in  justice  to  these  gentlemen 
who  have  framed  the  rules  in  reference  to  this  matter,  and  in  good,  sound,  hard  com- 
mon sense,  is  not  that  rule  a  proper  one  to  go  by  to-day,  and,  after  we  have  given 
consideration  for  ten  months  almost  to  these  important  matters,  should  we,  upon  the 
motion  of  these  gentlemen,  twist  around  what  we  consider  a  motion  to  rescind,  and 
by  simply  twenty-six  votes  reconsider  everything  we  acted  upon  here,  or  should  we, 
where  we  have  a  bare  quorum  of  fifty-one,  as  on  last  Saturday,  require  a  vote  of  two- 
thirds  of  those  present,  which  would  be  thirty-four,  to  reconsider?  I  do  submit,  gen- 
tlemen, that  when  you  go  to  work  as  we  have  here,  and  labor  day  in  and  day  out  for 
the  purpose  of  establishing  this  Constitution  and  of  acting  upon  it  properly,  we  should 
not  reconsider  the  action  we  have  taken  in  reference  to  these  important  matters  unless 
we  have  a  vote  of  two-thirds  of  those  members  present.  In  other  words,  we  should 
not  do  this  thing  without  a  full  attendance.  If  you  do  that  you  can  reconsider  any 
and  everything,  where  you  have  a  mere  bare  majority  of  a  bare  quorum,  upon  twenty- 
six  votes,  which  is  not  a  third  of  the  members  of  the  Convention. 

I  lay  down  the  proposition  that  in  any  legislative  body — it  is  so  in  the  House 
of  Delegates,  in  the  Senate,  and  in  every  body  I  ever  heard  of — where  you  undertake 
to  undo  what  has  been  done  after  careful  consideration,  there  must  be  more  than  a 
bare  majority  of  the  members  present  to  do  it.  It  is  sound  in  principle;  it  is  sound 
as  a  matter  of  right.  If  we  give  permission  to  the  members  of  this  Convention  to 
rescind  these  different  things  which  have  been  carefully  considered  and  adopted,  in 
violation  of  these  rules,  we  will  be  here  another  solid  month  in  undertaking  to  recon- 
sider different  matters.  This  Committee  on  Rules  put  in  here  the  words  "except  on  a 
motion  to  reconsider  or  rescind."  These  gentlemen  seem  to  have  misunderstood  what 
the  committee  meant  by  a  motion  to  rescind.  What  is  meant  by  that  was  to  strike 
entirely  out  of  the  Constitution  any  matter  that  the  Convention  thought  proper  to 
strike  out  entirely,  but  when  you  come  to  change  any  matter,  then  it  should  require 
two-thirds  of  the  members  present.  I  do  submit,  gentlemen  of  the  Convention,  that 
we  should  not  confound  these  two  propositions,  and  that  the  action  taken  on  last  Satur- 
day by  the  Convention  confounds  the  words  "rescind"  and  "reconsider,"  and  thus 
defeats  the  object  which  the  committee  had  in  framing  the  rules.  That  is  wrong. 
The  rule  we  established  was  that,  after  you  rescind  you  can  have  the  thing  just  as 
if  nothing  had  been  done  and  you  can  reinsert  another  law  in  its  place,  but  in  a  case 
of  that  kind  it  reouired  a  two-thirds  vote  to  suspend  the  rules  in  order  to  reconsider 
the  matter.  Is  there  a  precedent  for  that?  The  Convention  of  1850-'51  did  exactly  that 
thing  On  the  last  day  of  the  session,  a  motion  was  made  by  a  gentleman  to  sus- 
pend  the  rules  and  reconsider  a  section  of  the  judiciary  report,  exactly  as  this  Con- 
vention has  done,  and  it  was  done,  and  the  matter  entered  into.  I  do  submit  that 
these  rules  are  reasonable,  they  are  correct,  they  are  right,  and  after  a  careful  con- 
sideration has  been  given  to  matters  under  these  rules  we  should  not  make  a  new  set 
of  rules  to  undo  what  has  been  done  after  so  much  careful  consideration. 

Mr  Keezell-  If  any  other  construction  than  the  one  which  you  have  argued  is 
to  be  put  upon  the  rule,  would  it  not  be  true  that  any  question  passed  by  a  compara- 
tively close  vote  could  be  rescinded,  and  that  the  absence  of  three  or  four  members 
might  bring  about  that  result  so  that  we  would  be  rescinding  and  rescinding  every 

day  in  the  week.. 

Mr  Turnbull-    There  would  be  nothing  in  the  world  to  prevent  it. 

Mr.  Walker:    Mr.  President,  I  do  not  want  to  discuss  this  question  at  any  length. 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTION  OE  VIKGINIA. 


3083 


and  I  shall  not  do  so.  I  simply  desire  to  call  the  attention  of  the  Convention  to  the 
fact  that  the  action  taken  in  the  adoption  of  the  amendment  to  the  rules  proposed  b'y 
the  gentleman  from  Warren  was  taken  deliberately  and  after  full  debate.  I  desire  To 
call  attention  further  to  the  fact  that  we  have  just  now  voted  down  the  proposition 
offered  by  the  gentleman  from  Wythe,  which  would  have  required  a  two-thirds  vote 
in  order  to  rescind  any  action,  and  if  we  should  now  adopt  a  proposition  such  as  that 
proposed  by  the  gentleman  from  Brunswick  it  v-ould  simply  put  us  in  the  position  we 
would  have  been  in  if  we  had  adopted  the  rule  proposed  by  the  gentleman  from 
Wythe. 

The  President:  The  question  is  on  agreeing  to  the  resolution  offered  by  the  gen- 
tleman from  Brunswick  (Mr.  Turnbull). 

The  ciuesticn  being  taken  by  the  ayes  and  noes,  the  result  was  announced — ayes, 
37;  noes,  35. 

The  resolution  was  agreed  to.  (Applause.) 

Mr.  Walker:    Mr.  President,  I  offer  the  following  res.olution: 

Resolved,  That  when  the  Convention  adjourns  to-day,  it  shall  adjourn  to  meet 
again  on  Wednesday,  the  4th  day  of  June,  1902: 

That  the  Committee  on  Final  Revision  and  Adjustment  of  the  Various  Provisions 
of  the  Constitution  that  may  be  agreed  upon,  and  upon  the  Schedule,  be  authorized 
to  sit  during  the  recess,  with  authority  to  print  1,000  copies  of  the  Constitution  as 
finally  revised  by  it,  and  its  members  and  clerk  shall  receive  pay  during  such  time 
as  its  members  actually  attend  its  sessions;  that  the  other  members  of  the  Convention 
and  its  officers  and  emploj^ees"  shall  not  receive  pay,  but  shall  be  entitled  to  mileage. 

Mr.  Barbour:    I  call  for  the  regular  order. 

The  President:  The  Secretary  will  read  the  section  referred  to  in  the  report  of 
the  Committee  on  the  Judiciary,  which  is  next  in  order. 

Section  — .  The  judge  of  the  corporation  court  of  any  corporation  having  a  city 
charter,  but  less  than  five  thousand  inhabitants,  may  reside  outside  its  corporate  limits; 
and  the  same  person  may  be  judge  of  such  corporation  court  and  judge  of  the  corpora- 
tion court  of  some  other  city  having  less  than  ten  thousand  inhabitants. 

Mr.  William  A.  Anderson:  Mr.  President,  the  members  of  the  Convention  will 
observe  that  this  proposition  does  not  involve  the  rescission  of  any  action  that  has 
been  taken,  nor  has  the  Convention  expressed  judgment,  directly  or  indirectly,  upon 
this  proposition. 

This  section,  now  reported  by  the  Committee  on  the  Judiciary,  is.  intended  merely 
to  supply  an  omission,  and  correct  that  omission,  in  the  original  report.  It  relates 
only  to  judges  of  statutory  cities  having  less  than  5,000  inhabitants  and  enables  the 
General  Assembly  to  elect  as  judge  of  one  of  these  cities  some  person  who  is  a  judge 
of  another  city  of  the  second  class  having  not  more  than  fen  thousand  inhabitants. 
It  only  applies,  therefore,  to  the  city  judges  of  Bristol  and  Buena  Vista.  The  reason 
for  it  is  that,  under  the  Constitution,  as  we  have  adopted  it,  these  judges  can  no 
longer  practice  law,  and  it  is  impossible  in  the  nature  of  things,  to  secure  a  compe- 
tent lawyer  in  at  least  two  of  these  cities,  as  I  am  informed,  at  such  salaries  as 
those  communities  are  able  to  pay.  To  enable  them  to  secure  the  services  of  a  com- 
petent lawyer  and  a  competent  judge,  this  section,  if  adopted,  will  empower  the  Gen- 
eral Assembly  to  elect  the  judge  of  some  other  small  city,  as  the  judge  of  one  of  these 
statutory  cities. 

I  do  not  think  there  can  be  any  objection  to  the  proposition,  I  knov-  of  none,  and 
hope  it  will  be  the  pl^^asure  of  this  Convention  to  adopt  this  section. 

The  President:  The  question  is  on  agreeing  to  the  resolution  reported  by  the 
Committee  on  the  Judiciary. 

The  ayes  and  noes  were  ordered  and  being  taken,  the  result  was  announced — ayes, 
63;  noes,  13. 

The  resolution  was  agreed  to. 


3084 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  O'Plaherty:  I  move  to  rescind  the  action  by  which  sub-section  2  of  section  2 
of  the  article  on  suffrage  was  adopted. 

The  President:  The  question  is  on  agreeing  to  the  motion  made  by  the  gentle- 
man from  Warren  to  strike  out  sub-section  2  of  section  2. 

The  motion  was  rejected. 

Mr.  R.  Walton  Moore:  I  move  that  the  Secretary  be  directed  to  read  the  rescind- 
ing resolutions  in  the  order  in  which  the  Convention  is  to  act  upon  them,  at  once, 
except  the  one  relating  to  the  Legislative  Department. 

The  President:  That  will  be  taken  as  the  sense  of  the  Convention  unless  there 
is  objection. 

The  Secretary  read: 

Resolved,  That  Section  5,  article  6,  of  the  pending  Constitution,  as  contained  in  the 
report  of  the  Committee  on  the  Judiciary  Department,  adopted  on  the  8th  day  of  Jan- 
uary, 1902,  be  and  the  same  is  hereby  rescinded. 

Mr.  Withers:  .  This  resolution  has  been  to  committee  and  a  vote  has  been  taken 
on  it.  I  will  move  that  the  committee  be  discharged  from  the  further  consideration 
of  this  matter. 

The  motion  was  agreed  to. 

The  President:  The  question  is  on  the  motion  of  the  gentleman  from  Danville 
(Mr.  Withers)  to  pass  by  temporarily. 

The  vote  being  taken  by  the  ayes  and  noes,  the  result  was  announced — ayes,  41; 
noes,  32. 

The  motion  was  agreed  to. 

The  President.  The  Secretary  will  read  the  report  of  the  Committee  on  Executive 
Department  on  resolution  288. 

Resolved,  That  Section  13,  article  4,  relating  to  the  Executive  Department,  adopted 
by  the  Convention  on  the  26th  of  February,  1902,  be  rescinded,  and  the  following  section 
be  adopted  in  lieu  thereof: 

Section  13.  A  State  Treasurer  shall  be  elected  by  the  joint  vote  of  the  two  houseB 
of  the  General  Assembly  for  the  term  of  four  years. 

Mr.  William  A.  Anderson:  I  offer  as  a  substitute  for  this  proposed  resolution  a 
resolution  to  rescind  this  clause  of  the  section  of  the  article  adopted  by  this  Con- 
vention. 

The  question  having  been  taken  by  the  ayes  and  noes,  the  result  was  announced — 
ayes,  31;  noes,  44. 

The  resolution  was  rejected. 

Mr.  Cameron:  Mr.  President,  the  Committee  on  the  Executive  Department  re- 
ported unanimously  against  resolution  No.  289,  which  I  would  like  the  Secretary  to 
read. 

Resolved,  That  Section  12,  of  Article  IV,  relating  to  the  Executive  Department, 
adopted  by  the  Convention  on  the  26th  of  February,  1902,  be  rescinded,  and  the  fol- 
lowing section  be  adopted  in  lieu  thereof: 

Section  12.  A  Secretary  of  the  Commonwealth  shall  be  elected  by  the  joint  vote 
of  the  two  houses  of  the  General  Assembly  for  a  term  of  four  years.  He  shall  be  com- 
missioned by  the  Governor,  and  shall  receive  a  salary  to  be  fixed  by  law.  He  shall 
keep  a  daily  record  of  the  official  acts  of  the  Governor,  which  shall  be  signed  by  the 
Governor  and  attested  by  the  Secretary,  and  when  required,  he  shall  lay  the  same 
and  any  papers,  minutes  and  vouchers  pertaining  to  his  office,  before  either  house  of 
the  General  Assembly.  He  shall  discharge  such  other  duties  as  may  be  prescribed  by 
law.  All  fees  received  by  the  Secretary  of  the  Commonwealth  shall  be  paid  into  the 
treasury  monthly. 

Mr.  Portlock:  Mr.  President,  I  move  to  rescind  the  action  of  the  committee  re- 
lating to  the  office  of  Secretary  of  the  Commonwealth. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3085 


The  question  is  on  the  adoption  of  the  substitute. 
The  motion  was  rejected. 

The  President:    The  question  is  on  the  resolution  offered  by  the  gentleman  from 
Halifax,  being  resolution  No.  282,  relating  to  the  election  of  the  county  treasurer. 
The  motion  was  rejected. 

The  President:  The  resolution  offered  by  the  gentleman  from  Norfolk  county 
(Mr.  Portlock)   is  now  on  the  table,  and  the  Secretary  will  read  the  resolution. 

Resolved,  That  Section  24  of  the  report  of  the  Committee  on  Taxation  and  Finance, 
as  adopted  by  the  Convention,  and  referred  to  the  Committee  on  Finance  Revision, 
providing  for  the  reduction  of  taxes  on  tracts  of  lands  and  lots  and  the  improve- 
ments thereon  and  tangible  personal  property,  etc.,  be  rescinded. 

Mr.  Portlock:  Mr.  President  and  gentlemen  of  the  Convention,  I  know  how 
extremely  difficult  it  is,  at  this  stage  of  our  proceedings,  to  have  this  body  seriously 
consider  an  attempt  to  make  any  change  in  the  matters  heretofore  passed  upon  by 
the  Convention.  I  know  how  anxious  the  members  of  this  Convention  now  are  to 
reach  a  termination  of  their  labors.  I  am  also  aware,  Mr.  President  and  gentlemen, 
of  the  importance  of  correcting,  if  possible,  any  mistake  which  we  may  have  made  in 
the  past  in  our  deliberation  and  in  our  work  in  this  body.  I  am  all  the  more 
impressed  with  the  necessity  for  correcting  what  I  believe  to  be  one  of  the  gravest  and 
most  serious  errors  which  this  body  has  committed,  an  error  which  affects  the  credit, 
honor  and  integrity  of  this  State;  an  error  which  reduces  to  an  experiment  and  an 
uncertainty  the  ability  of  the  State  to  met  in  the  future,  its  governmental  necessities 
and  its  ability  to  avail  of  the  funds  necessary  to  discharge  the  obligations  incident  to 
the  growth  of  our  public  institutions  and  ever  increasing  population.  I  refer  to  the 
reduction  of  the  State  tax  assessment  from  40  to  30  cents  on  the  $100.  I  know  it  is 
not  a  popular  procedure  on  the  part  of  any  one  to  inveigh  against  any  attempt  to  les- 
son the  rate  of  taxation,  as  a  general  proposition.  But  here  is  a  specific  case  v/hich, 
as  I  have  said,  in  my  opinion  involves  the  credit,  the  honor  and  the  welfare  of  the 
State  of  Virginia,  and  if  we  have  made  a  mistake  in  a  matter  so  serious  as  this  I  believe 
it  would  be  the  desire  of  this  Convention  to  correct  that  mistake.  I  understand,  Mr. 
President,  that  we  have  a  limited  time  for  debating  this  question  and  it  is  therefore, 
impossible  for  me  to  discuss  it  at  any  length,  or  to  even  attempt  to  go  into  the  question 
of  facts  and  figures  with  reference  to  the  financial  situation  of  the  State  of  Virginia. 

I  can  only  say  that  we  cannot  now,  at  this  time,  estimate  the  necessities  of  this 
State  growing  out  of  this  rate  of  taxation  by  a  simple  reference  to  our  present  financial 
condition.  We  have  been  for  some  time  past,  and  are  now,  in  an  extremely  prosperous 
condition.  By  reason  of  the  rate  of  taxation  which  we  now  have,  we  have  been  able 
to  meet  unusual  obligations.  For  instance,  we  have  recently  paid  an  increased  interest 
on  the  public  debt  of  $180,000.  We  have  paid  increased  pensions  of  $165,480  over  and 
above  the  usual  average  expenses  heretofore  paid  by  the  State.  Our  receipts  were 
larger  in  the  year  1901  than  they  have  lj£'en  for  some  years  past  and  very  much  larger 
than  they  will  be  again,  in  my  opinion,  notwithstanding  the  efforts  we  have  made  to- 
wards the  reduction  of  expenses  in  the  State  government  under  the  provisions  to  be 
embodied  in  the  new  Constitution. 

I  think,  Mr.  President  and  gentlemen,  that  it  is  unworthy  of  this  body  to  put  into 
this  Constitution  a  provision  which  will  menace  the  prosperity  of  the  State  of  Virginia, 
and  which  will  tend  to  bring  upon  us  the  deplorable  conditions  of  a  few  years  past, 
involving  the  question  of  readjustment  or  perhaps,  even  worse,  repudiation,  in  order 
that  vv^e  may  say  to  the  people  of  the  State  of  Virginia  that  we  have  reduced  their 
taxes,  we  should  resort  to  any  such  conduct  as  this  as  an  argument  and  an  excuse 
in  calling  upon  the  people  to  adopt  this  Constitution  which  we  have  framed  for  them. 
I  say  that  the  people  of  Virginia  do  not  want  this.  They  have  not  asked  for  it  and  they 
have  no  faith  in  it.    It  is  merely  a  sop,  a  tub  thrown  to  the  whale,  a  species  of 


3056  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

political  buncombe,  whereby  it  is  expected  that  the  people  will  be  induced  to  overlook, 
perhaps,  supposed  deficiencies  in  this  Constitution.  Its  only  object  is  to  hold  out  this 
act  of  the  Convention,  popular  as  it  appears  on  its  face,  as  a  means  of  popularizing 
our  work,  and  as  a  reason  for  accepting  and  adopting  the  same.  We  have  made  a 
good  Constitution  without  the  reduction  of  taxesi,  and  I  believe  the  people  will  accept  it. 

Mr.  Keezell:  Is  it  because  you  want  to  call  their  attention  to  what  you  think  are 
the  deficiencies  of  the  Constitution  and  so  prevent  them  from  adopting  it,  that  you  are 
opposing  this  measure? 

Mr.  Portlock:  The  gentleman  from  Rockingham,  Mr.  Keezell,  must  not  infer  or 
argue  that  because  I  have  declined  to  support  some  of  his  radical  and  populistic  meas- 
ures, that  therefore  I  am  disposed  to  discredit  the  wisdom  and  work  of  this  Convention. 
I  will  say  further  to  the  gentleman,  that  I  give  the  people  credit  to  be  able  to  read  and 
understand  and  for  themselves  the  result  of  the  work  of  this  body,  even  though  the  gen- 
tleman may  not  concede  their  ability  to  do  so.  If  the  gentleman  knows  anything,  he 
must  know  that  I  refer  to  the  people  themselves  and  to  what  some  of  the  members 
of  this  Convention  believe  are  deficiencies  in  the  article  we  have  framed  as.  the  New 
Constitution. 

There  is  no  purpose  on  my  part  to  use  that  as  an  argument,  as  the  gentleman 
from  Rockingham  must  know.  Nor  will  that  gentleman  be  more  loyal  in  his  support 
of  this  Constitution  than  I  myself  will  be. 

Mr.  President,  I  regard  another  proposition  contained  in  this  Constitution  as  an 
indication  of  doubt  on  the  part  of  the  supporters  of  this  provision  as  to  the  sufficiency 
of  this  rate  of  taxation.  They  seek  to  cover  and  remedy  any  deficiency  that  may  be 
brought  about  by  this  reduction  of  the  rate  of  taxation  by  putting  upon  the  Lregislature 
the  necessitj^  of  in  the  future  raising  these  taxes.  How  can  they  say  tfiis  rate  is  suffi- 
cient when  at  the  very  time  of  making  this  reduction,  they  provide  that  the  rate  may 
be  increased  by  the  Legislature.  In  other  words,  we  get  all  the  credit  before  the  people 
and  expect  to  receive  their  encomiums  for  our  work  in  reducing  taxes  and  when  the  need 
for  more  revenue  becomes  apparent  as  they  obviously  think  it  will,  the  Legislature  will 
be  subjected  to  the  unpopular  act  of  putting  these  taxes  back  again.  I  say  that  also  is 
unworthy  of  our  body.  It  is  a  responsibility  which  we  ought  to  assume  and  stand  up 
t<-;  ourselves,  and  not  leave  it  to  the  Legislature  to  undo,  from  an  unpopular  point  of 
view,  what  we  seek  to  do  by  reason  of  the  popularity  involved. 

As  a  matter  of  fact,  this  Constitution  has  nothing  to  do  with  this  question; 
we  could  easily  have  left  it  out.  We  could  easily  have  said  nothing  about  it,  as  other 
constitutions  heretofore  made  and  adopted  by  this  State  have  done.  There  is  nothing 
in  the  present  constitution  and  there  never  has  been  anything  in  any  of  the  constitu- 
tions of  this  State,  relating  to  the  rate  of  assessment  for  taxation,  and  why  should  we 
come  here  and  undertake,  for  the  first  time  in  our  history,  to  assume  this  purely  legis- 
lative function? 

Mr.  Barbour:  Are  you  aware  that  Section  14  of  this  same  article  contains  a  maxi- 
mum tax  on  corporations  for  a  period  of  ten  years? 

Mr.  Portlock:    I  have  made  no  reference  to  Section  14.    I  am  speaking  of  Section 

24. 

Mr.  Barbour.  It  seems  to  me  the  matters  are  connected.  Would  you  be  willing  to 
rescind  both? 

Mr.  Portlock:  Yes,  sir;  I  would  be  perfectly  willing  to  rescind  both,  I  will  say  to 
the  gentleman  from  Culpeper  that  the  tax  on  corporations  is  a  maximum  tax,  and  this 
section,  which  I  am  discussing,  provides  for  a  minimum  tax,  and  it  is  the  extreme 
minimum  that  I  object  to. 

Mr.  Barbour:  The  article  merely  prescribes  the  maximum  rate.  You  cannot  go 
above  it  but  you  may  go  below  it. 

Mr.  Portlock:  The  gentleman  understands  that  the  point  I  make  Is,  that  we  have 
already  gone  too  far  below  the  rate  now  in  force.    I  would  like  to  call  the  attention  of 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3087 


this  Convention  to  anotlier  consideration  in  regard  to  this  matter.  Tliis  report  means 
a  serious  discrimination.  I  am  no  special  advocate  of  one  special  class  of  property- 
holders  over  another.  I  am  disposed,  on  the  contrary,  to  put  them  all  on  the  same  plan. 
I  say  that  this  section  does  not  do  it  and  it  amounts  to  discrimination  in  the  matter  of 
taxes.  In  other  words,  it  provides  that  the  rate  of  taxation  shall  be  reduced  from  40 
cents  to  30  cents  on  the  $100  on  real  estate  and  tangible  personal  property  and  does  not 
seek  to  lower  the  rate  on  intangible  property.  I  say  that  this  section  makes  a  discrimi- 
nation between  real  estate,  tangible  personal  property,  and  intangible  personal  property. 

Mr.  Wysor:  I  thank  the  Convention  for  permitting  me  to  address  it  after  the 
expiration  of  the  time  alloted  to  Judge  Portlock's  side  of  the  question,  upon  which  side 
I  will  speak.  I  want  to  return  the  favor  by  telling  the  Convention  what  I  think  it  ought 
to  do.  It  seems  to  me  that  it  owes  it  to  itself  to  rescind  this  tax  reduction  provision. 
You  have  been  called  the  greatest  body  of  men  on  earth,  and  it  has  pleased  you  very 
much.  I  do  not  believe  you  are  the  greatest  body  of  men  on  earth.  If  3'ou  are  I  am 
satisfied  you  will  rescind  that  provision.  There  is  one  thing  I  do  believe  about  the  Con- 
vention, and  that  is  that  it  is  one  of  the  most  independent  bodies  on  earth;  but  in  this 
article  it  shows  a  lack  of  independence.  This  tax  reduction  provision  savors  of  a  bid 
to  the  people  to  approve  the  Constitution.  It  also  makes  a  bid  to  the  Confederate 
soldier  hy  holding  out  to  him  the  empty  hope  that  the  people  might  vote  a  levy  of  five 
cents  on  the  one  hundred  dollars  for  his  benefit.  He  should  be  provided  for  without 
resorting  to  the  uncertainty  of  an  election.  I  believe  this  is  the  only  Constitution  in 
which  you  will  find  such  a  provision.  It  shows  a  lack  of  confidence  in  the  Legislature, 
and  more  than  that,  it  shows  a  lack  of  confidence  in  the  people.  It  takes  away  from  the 
people  for  four  years  the  right  to  fix  the  rate  of  taxation  on  real  estate  and  tangible 
personal  property.  By  it  you  show  that  you  mistrust  the  people.  If  the  Constitution  is 
submitted  to  the  people  this  provision  will  perhaps  cause  more  votes  to  be  cast  against 
the  Constitution  than  for  it. 

Its  tendency  will  be  to  bring  about  unequal  taxation.  The  gentleman  from  Rock- 
ingham (Mr.  Keezell),  who  just  interrupted  the  gentleman  from  Norfolk  county  (Mr. 
Portlock),  voted  for  this  provision,  and  then  tried  in  the  Senate  to  increase  the  tax 
on  telephone  companies,  which  is  already  excessive  and  unjust,  in  order  to  make  up  a 
deficiency-.  This  tax  reduction  provision  reaches  R,ockingham  farms,  but  there  are 
other  species  of  property  which  do  not  get  the  benefit  of  it.  such  as  telephones,  for 
example.  The  gentleman  from  Rockingham,  I  understand,  as  a  member  of  a  sub-com- 
mittee of  the  Finance  Committee  of  the  Senate,  joined  in  a  report  to  put  in  addition  to 
the  present  excessive  methods  of  taxing  telephone  companies  a  tax  of  two  per  cent, 
on  their  gross  earnings,  and  a  tax  of  two  dollars  a  mile  on  their  lines  of  poles. 

This  would  have  been  confiscation  of  all  the  independent  telephone  companies  of  the 
State.  In  redistricting  the  State  for  Senators,  it  was  said  the  Legislature  was  about  to 
destroy  his  Senatorial  district.  I  would  not  have  wept  if  it  had  been  done,  nor  would 
I  shed  tears  if  he  should  be  defeated  the  next  time  he  runs.  In  these  remarks  about 
the  gentleman  from  Rockingham  I  am  only  semi-serious,  and  I  hope  he  will  not  take 
them  too  much  to  heart.  Peradventure  he  will  get  straight  on  taxation  of  telephone  com- 
panies after  awhile,  and  not  seek  to  tax  them,  as  I  think,  so  excessively.  But  I  insist 
that  this  tax  provision  should  be  stricken  from  the  Constitution.  It  is  a  matter  that  the 
Legislature  and  the  people  have  the  right  to  control.  It  is  the  province  of  the  Legislature 
to  reduce  taxes  and  not  ours.  The  people  have  the  right  to  increase  their  taxes  when- 
ever they  wish,  and  should  not  be  prohibited  by  a  constitutional  provision  from  doing 
so.    T\'e  are  all  willing  for  reduction,  but  let  it  be  done  by  the  proper  tribunal. 

The  gentleman  from  Culpeper  asked  the  gentleman  from  Norfolk  if  there  was  not 
a  maximum  rate  fixed  on  corporations.  There  is,  but  we  have  increased  the  tax  on 
corporations  and  get  $250,000  a  year  more  money  out  of  them  than  we  were  getting 
before,  and  this  provision  reduces  the  State  tax  one-fourth  on  real  estate,  which  it  is 
claimed  is  already  assessed  at  much  less  than  its  value,  and  will  in  all  probability 


3088 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


continue  to  be  assessed  at  much  less  than  its  value,  and  makes  a  like  reduction  on 
tangible  personal  property,  but  makes  no  reduction  on  other  kindsi  of  property. 

Mr.  Barbour:  The  gentleman  speaks  of  real  estate  in  Southwest  Virginia,  I  sup- 
pose? 

Mr.  Wysor:  Out  in  Pulaski  some  lands  are  assessed  at  $25  and  $30  an  acre  and 
more.  Southwest  Virginia  doubtless  pays  her  just  proportion  of  State  taxes.  I  don't 
know  how  it  is  in  Culpeper,  but  I  will  make  a  trip  through  the  Auditor's  office  some 
of  these  days  and  see  how  real  estate  stands  in  Culpeper, 

The  gentleman  from  Danville  seems  to  think  that  it  would  take  a  great  deal  of 
nerve  to  get  up  here  and  oppose  the  tax  reduction  provision.  I  am  willing  to  let  the 
people  know  I  oppose  it.  The  people  will  not  condemn  a  man  if  he  acts  conscientiously. 
But  I  haven't  got  my  ear  to  the  ground. 

I  thank  the  Convention  for  its  attention.  (Applause.) 

Mr.  Keezell:  Mr.  President,  I  desire  to  take  but  a  very  few  minutes  of  the  time  of 
this  Convention.  When  this  matter  was  up  in  Convention  I  was  reluctant  to  speak 
upon  it  at  all.  The  gentleman  from  Danville  gave  some  figures  and  at  the  solici- 
tation of  a  number  of  my  fellow-members  of  the  Convention  I  was  asked  to  give  my 
opinion  about  the  matter.  I  then  stated  I  did  not  propose  to  advise  any  one  how  they 
should  vote,  but  that  from  information  I  had  as  to  the  figures  submitted  by  the  gentle- 
man from  Danville  I  had  no  doubt  they  were  substantially  correct  and  that  I  was 
going  to  vote  to  put  this  provision  in  the  Constitution;  however,  I  desired  everybody 
else  to  vote  just  exactly  as  they  pleased  about  the  matter.  I  told  them  if  they  thought 
it  was  not  proper  matter  to  go  into  the  Constitution  not  to  vote  for  it,  l3ut  that  I,  as  a 
member  of  the  General  Assembly,  believed  it  was  a  wise  thing  to  put  some  limit  on 
the  Legislature  because  it  was  almost  impossible  for  the  members  to  resist  the  impor- 
tunities that  come  to  them  from  special  interests,  when  there  is  a  large  surplus  of 
money  on  hand,  and  that  the  safest  condition  for  the  State  to  be  in  was  to  have  prac- 
tically an  empty  treasury.  I  stated  that  I  had  no  doubt,  in  my  own  mind,  that  every 
just,  reasonable  and  legal  requirement  of  the  State  would  be  met  under  this  reduction 
of  taxation,  and  that  it  was  really,  in  fact,  only  a  reduction  of  five  cents,  instead  of 
ten,  because  there  was  a  provision  there  which  allowed  five  cents  to  be  levied  for  the 
payment  of  pension  claims.  A  resolution  was  offered  in  the  Senate  of  Virginia  for  a 
report  from  the  Finance  Committee  of  that  body  upon  this  question.  A  certain  gen- 
tleman in  that  Finance  Committee  prepared  a  very  lengthy  report,  undertaking  to 
demonstrate  that  this  reduction  could  not  be  safely  made,  and  that  the  Legislature  was 
not  in  a  position  to  advocate  a  five-cent  reduction.  I  want  to  say  now  that  when  that 
report,  more  than  thirty  pages  of  typewritten  matter,  dealing  in  figures  which  were 
said  to  be  figures  from  the  Auditor  of  Public  Accounts,  was  brought  before  the  Com- 
mittee on  Finance  of  the  Senate,  it  was  so  far  from  accurate,  as  was  pointed  out  by  me, 
that  the  gentleman  who  presented  it  withdrew  it,  and  it  never  saw  the  light  of  day  in 
the  Finance  Committee  of  the  Senate.  (Applause.) 

I  say  now  that  there  is  no  question  about  the  rate  of  taxation  fixed  in  this  Consti- 
tution being  sufficient  for  every  legal,  reasonable  and  proper  demand  of  this  Common- 
wealth. If  you  want  to  put  a  rate  of  fifty  cents  on  the  hundred  dollars  into  the  Con- 
stitution, you  will  find  a  Legislature  that  will  spend  every  dollar  of  it. 

Mr.  Wysor:  Did  you  not  sign  the  Finance  Committee's  report,  which  said  that  this 
was  peculiarly  a  matter  for  the  Legislature? 

Mr.  Keezell:  I  said  that  I  did  not  intend  to  advise  other  people  how  to  vote  on 
this  matter;  but  as  a  member  of  the  Legislature  I  wanted  to  be  relieved  from  the  pres- 
sure that  has  been  brought  to  bear  upon  that  body  from  every  section  of  the  Common- 
wealth, which  they  could  hardly  withstand  when  they  had  money  in  the  treasury. 

As'  to  the  statement  of  the  gentleman  from  Pulaski,  I  have  no  desire  to  come 
back  to  the  Senate  of  Virginia.  They  did  not  have  to  abolish  my  Senatorial  district 
to  keep  me  from  coming  back  to  the  Senate,  but  I  have  confidence  enough  in  my  people 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA. 


3089- 


to  think  that  if  I  wanted  to  come  back  I  could  do  so  despite  the  wishes  of  the  gentleman 
from  Pulaski,  and  that  his  objections  could  not  keep  me  from  coming. 

So  far  as  the  taxes  on  telephones  are  concerned,  I  did  not  favor  increasing  the  tax 
on  any  company  and  the  tentative  proposition  of  $2.00  per  mile,  etc.,  was  only  intended 
to  apply  to  those  companies  which  practically  escape  a  transmitter's  tax  and  was  with- 
drawn when  it  was  pointed  out  that  it  would  affect  other  companies  disastrously. 

I  did  not  propose  to  reduce  the  taxes  on  the  Bell  Telephone  Company,  in  the  interest 
of  that  great  monopoly,  which  was  asking  to  be  almost  entirely  relieved  from  taxation, 
and  I  did  stand  up  for  the  farmers  of  this  Commonwealth  and  say  that  they  should 
have  a  just  system  of  taxation  put  upon  them;  and  I  did  succeed  in  relieving  the  purely 
mutual  telephone  companies  of  a  license  tax.  It  was  never  the  contemplation  of  the 
law  to  charge  them,  and  this  was  done  without  increasing  the  tax  upon  any  other  tele- 
phone companies — but  leaving  it  as  at  present. 

Mr.  Meredith:  I  hope  the  resolution  of  the  gentleman  from  Norfolk  county  will 
not  be  adopted.  I  was  in  very  grave  doubt  as  to  what  to  do  about  the  reduction  of 
taxation;  but,  inasmuch  as  this  provision  has  been  adopted  by  the  Convention,  I  think 
we  should  stand  to  it  and  vote  down  the  motion  to  make  any  changes.  I  do  not  think 
we  should  attack  the  provision  of  Section  14  with  regard  to  the  tax  on  railroads.  I 
hope  it  will  be  the  pleasure  of  the  Convention  to  let  the  matter  stand  as  it  is. 

Mr.  Glass:  Mr.  President,  I  was  not  present  in  the  Convention  when  the  vote  upon 
the  reduction  of  taxation  was  taken;  but  had  I  been  here  I  should  have  cast  my  vote 
in  favor  of  the  reduction  with  the  greatest  pleasure.  Had  I  been  here  and  voted  against 
the  reduction  of  taxes,  my  observation  and  limited  experience  in  the  Senate  within  th& 
last  six  weeks  w^ould  make  me  alter  my  attitude,  and  I  intend  to-day  to  vote  against 
this  motion  for  rescision.  I  desire  to  remark  in  a  perfectly  friendly  spirit  that  I  am 
not  so  tender  of  the  feelings  of  the  General  Assembly  as  to  be  afraid  to  exercise  my 
constitutional  right  here  upon  this  matter  of  reducing  taxes;  and  if  members  of  this 
Convention,  however  much  they  may  deplore  friction,  could  have  read  the  assault 
upon  the  work  of  this  body  referred  to  just  now  by  the  delegate  from  Rockingham, 
they  would  not  be  so  effusively  deferential  in  dealing  with  questions  which  the  General 
Assembly  has  been  accustomed  to  handle. 

We  are  not  expected  to  reverse  our  action  here  upon  the  mere  expression  of  belief 
by  the  delegate  from  Norfolk  county  that  the  reduction  of  the  tax  rate  by  the  Con- 
vention was.  not  made  in  a  spirit  of  sincerity,  but  purely  as  a  matter  of  "  bun- 
combe." I  do  not  believe  it  was  done  as  a  matter  of  "buncombe."  I  believe  it 
was  the  deliberate  conviction  of  the  members  of  this  hody  that  they  had  so  performed 
their  work  as  to  reduce  the  running  expenses  of  the  government  of  this  State  and  at 
the  same  time  to  bring  a  large  accretion  to  the  public  revenue;  having  done  which,  it 
was  their  perfect  right  to  challenge  and  repel  the  declaration  that  the  Convention  has 
been  a  useless  and  expensive  luxury.  It  is  our  privilege,  if  not  a  duty  which  we  owe 
ourselves,  to  demonstrate  to  the  people  of  Virginia  that  the  work  of  this  Convention  has 
been  of  such  a  substantial  nature  that  we  may  safely  reduce  the  burden  of  taxation. 

Mr.  Wysor:  You  seem  to  be  unwilling  to  trust  this  matter  of  taxation  to  the 
Senate.  Do  you  not  expect  we  will  always  have  a  Senate  of  A^irginia  and  a  Legislature, 
and  if  you  do,  why  don't  you.  take  the  matter  away  from  the  Legislature  altogether  and 
put  it  into  the  Constitution? 

Mr.  Glass:  Because  conditions  change  and  the  tax  rate  must  be  conformed  to 
circumstances.  An  investigation  of  the  State's  finances  at  this  time,  together  with 
an  examination  of  the  expeditures  and  receipts  of  government  and  the  available  surplus, 
convinces  me  that  it  is  perfectly  safe  to  reduce  the  tax  rate  for  a  period  of  four  years. 
Not  only  do  I  regard  such  reduction  as  feasible,  but  I  think  it  eminently  wise;  moreover, 
I  am  confident  that  our  action  will  not  soon  be  undone  by  the  General  Assembly;  or  the 
increased  revenues  to  be  derived  from  the  taxation  of  corporations,  together  with  the 
reduction  of  administrative  expenses  made  by  this  Convention,  is  going  to  keep  the 


3090  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIEGINIA. 

taxes  of  the  State  down  to  30  cents  on  the  one  hundred  dollars.  Hence  I  repeat  that 
the  reduction  of  the  tax  rate  by  the  Convention  was  not  "  buncombe."  It  was  an 
achievement  that  the  Convention  ought  to  be  proud  of. 

Having  accomplished  such  results  in  the  face  of  attack  and  harassment,  the  Con- 
vention has  a  right  to  make  its  work  secure  and  to  demonstrate  to  the  people  that  their 
representatives  here  have  not  uselessly  frittered  'away  their  time.  The  outcry  against 
tax  reduction  comes  from  the  organized  opposition  to  this  Convention,  and  is  inspired 
by  a  purpose  to  defeat  its  work  before  the  people.  (Applause.)  Tangible  evidences 
are  by  no  means  lacking  of  concerted  effort  to  beat  the  Constitution  that  we  have 
framed.  I  have  repeatedly  heard  bold  and  emphatic  threats  to  that  effect.  We  ought 
to  meet  these  enemies  fearlessly;  vv^e  ought  unhesitatingly  to  repel  their  attacks. 

We  have  evinced  here  quite  as  much  deference  to  the  General  Assembly  as  that 
body  has  to  the  Convention.  The  bitter  hostility  of  certain  members  of  the  Legislature 
to  the  work  of  the  Convention  has  not  been  disguised.  It  has  been  openly  proclaimed 
by  some  and  covertly  demonstrated  by  others;  and  under  the  leadership  of  these  gen- 
tlemen the  General  Assembly  has,  in  less  than  six  weeks,  expended  the  accumulated 
surplus  of  nearly  three  years.  They  have  gone  into  the  treasury  with  lavish  hands. 
Nothing  has  been  denied.  I  do  not  hesitate  to  express  it  as  my  belief  that  this  has 
been  largely  done  to  discredit  the  work  of  this  Convention  by  attempting  to  convince 
the  people  of  Virginia  that  this  tax  reduction  is  a  dangerous  and  disastrous  experiment. 
In  my  opinion  it  is  neither.  It  is  practical  and  safe  and  right.  I  accept  my  full  share 
of  the  responsibility  for  it,  and  shall  vote  against  any  rescission  of  the  action  of  the 
Convention. 

The  President:  The  question  is  on  agreeing  to  the  resolution  offered  by  the  gen- 
tleman from  Norfolk  county. 

The  question  being  taken  on  ayes  and  noes,  the  result  was  announced — ayes,  23; 
noes,  56. 

Mr.  Walker:    I  ask  to  have  my  resolution  reported. 

Resolved,  That  when  the  Convention  adjourns  to-day  it  shall  adjourn  to  meet  again 
on  Wednesday,  22d  day  of  May,  1902,  at  12  o'clock  M.,  and  that  the  "  Committee  on 
Pinal  Revision  and  Adjustment  of  the  Various  Provisions  of  the  Constitution  that  may 
be  agreed  upon  and  upon  the  Schedule"  be  authorized  to  sit  during  the  recess,  with 
authority  to  print  one  thousand  copies  of  the  Constitution  as  finally  revised  by  it, 
together  with  the  schedule  and  report  of  the  committee,  and  its  members  and  clerk 
shall  receive  pay  during  such  time  as  its  members  actually  attend  its  sessions,  as  well 
as  mileage;  that  the  other  members  of  the  Convention,  and  its  officers  and  employees 
shall  not  receive  pay,  but  shall  be  entitled  to  mileage. 

The  resolution  was  adopted. 

The  hour  of  2  o'clock  having  arrived,  the  Chair  was  vacated  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  Mr.  Ayers  in  the  chair. 

The  Presiding  Officer:  The  business  before  the  Convention  is  the  consideration  of 
the  two  resolutions  of  the  gentleman  from  Appomattox  (Mr.  Flood).  The  first  resolu- 
tion v/ill  be  read. 

Resolved,  That  Section  3,  of  Article  5,  of  the  pending  Constitution,  as  contained  in 
the  report  of  the  Committee  on  the  Legislative  Department,  adopted  on  the  7th  day  of 
January,.  1902,  be,  and  the  same  is,  hereby  rescinded. 

Mr.  R.  Walton  Moore:  Mr.  President,  the  gentleman  who  introduced  this  resolu- 
tion is  absent.  I  do  not  know  that  there  is  any  prospect  now  of  his  return  before  the 
adjournment  of  the  Convention,  so  I  suppose  we  might  as  well  take  up  this  matter  and 
dispose  of  it;  I  take  it  for  granted  there  is  no  alternative.    The  Convention  will  recall 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIKGIXIA.  5091 

the  provision,  as  it  now  stands,  is  for  the  election  of  the  entire  Legislature  biennially, 
both  the  members  of  the  House  of  Delegates  and  the  Senate.  If  the  Convention  should 
rescind  that  action,  without  some  understanding  being  reached  in  advance,  it  is  Impossi- 
ble to  tell  whether  we  could  get  a  two-thirds  vote  to  effect  any  substitution  whatever. 
It  has  been  suggested  in  the  last  hour  or  so,  by  gentlemen  who  have  conferred  with  the 
delegate  from  Appomattox,  that  before  taking  a  formal  vote  on  the  rescinding  resolu- 
tion, there  might  be  some  understanding  reached,  to  substitute  for  what  we  have  done 
a  provision  that  would  be  satisfactory  to  all,  and  which  would  settle  the  conflicting 
views  entertained  by  the  gentlemen  of  the  Convention. 

Now,  Mr.  President,  so  far  as  I  am  concerned,  I  am  not  here  in  any  unyielding 
attitude,  and  those  who  have  acted  with  me,  I  am  sure,  are  disposed  to  make  any 
concessions  that  will  relieve  a  situation  which  has  become  somewhat  complicated. 
This  subject  has  been  under  discussion,  in  one  form  or  another,  almost  ever  since  the  Con- 
vention convened  last  summer.  It  has  been  proposed  by  several  gentlemen  that  it  might 
be  possible  to  come  to  an  understanding,  in  a  more  or  less  formal  way,  in  advance 
of  a  vote  upon  the  motion  to  rescind,  to  the  effect  that  all  the  members  of  the  House 
of  Delegates  shall  be  elected  biennially,  and  all  the  members  of  the  Senate  shall  be 
elected  quadriennially.  This  would  provide  for  the  election  of  the  entire  Legislature 
every  four  years,  and  an  intermediate  biennial  election  of  the  House  of  Delegates.  It 
has  seem.ed  to  me,  gentlemen,  that  the  arrangement  suggested  would  give  a  feature  of 
sufficient  conservatism,  and  at  the  same  time  would  facilitate  the  people  in  securing  a 
ready  expression  of  their  opinions  and  wishes  by  the  General  Assembly  of  the  State. 

Now,  I  have  made  this  statement  very  frankly,  because  this  is  no  time  for  strategy 
or  manoeuvring;  and  I  want  to  be  perfectly  candid  with  the  members  of  the  Conven- 
tion. I  can  only  say  that  such  a  disposition  of  the  subject  would  be  very  agreeable 
to  me,  and  I  respectfully  ask  the  Convention  to  take  it  under  consideration  at  once, 
with  a  view  of  determining  whether  we  can  come  to  that  conclusion,  and  be  ready  for 
the  recess,  which  has  already  been  agreed  upon  this  morning. 

Mr.  Carter:  Mr.  President,  I  am  one  of  the  members  of  this  Convention  who  was 
very  much  opposed  to  the  change  that  was  made  in  the  Constitution  of  our  State  Sen- 
ate. I  thought  we  made  a  great  mistake.  I  thought  it  was  done  in  a  hurry,  and 
without  due  consideration.  It  was  the  one  single  thing  that  this  body  has  done  that 
I  was  willing  to  vote  to  rescind.  I  will  say,  speaking  for  myself  alone,  that  I  am 
perfectly  willing  to  take  the  olive  branch  held  out  by  the  gentleman  from  Fairfax 
(Mr.  Moore).  In  the  first  place,  I  think  it  is  exceedingly  important,  in  these  closing 
days  of  our  session,  that  we  should  get  together  upon  as  many  subjects  as  possible,  in 
order  to  adjourn  with  as  much  consensus  of  agreement  upon  all  important  points  as 
it  is  possible  for  us  to  have.  I  am  willing  to  yield  something  of  my  views  upon  this 
question,  as  I  have  been  upon  many  other  questions  which  have  come  before  this  body. 
,  Mr.  George  K.  Anderson:  I  had  the  honor,  Mr.  President  and  gentlemen  of  the 
Convention,  to  introduce  a  resolution  looking  to  the  election  of  all  the  members  of 
the  General  Assembly  for  terms  of  four  years,  with  biennial  sessions.  In  the  same 
spirit  which  has  actuated  the  chairman  of  the  Committee  on  Legisla.tive  Department. 
I  feel  that  the  time  has  come  v/hen  our  extreme  views,  upon  these  questions  should  be 
toned  down  to  some  extent.  I  therefore  give  notice  that  I  shall  offer  an  amendment 
to  the  resolution  proposed  by  the  gentleman  from  .  Appomattox,  to  strike  out  of  his 
resolution  all  of  the  words  contained  in  the  lines  from  5  to  8,  inclusive,  which  will 
leave  us  in  this  position:  That  members  of  the  House  of  Delegates  will  be  elected 
every  two  years,  for  terms  of  two  years,  and  members  of  the  Senate  will  be  elected 
every  four  years  for  terms  of  four  years;  and  when  the  question  comes  up  on  the 
resolution  offered  by  myself,  I  shall  ask  the  Convention  to  vote  it  down  and  take  this 
in  lieu  of  it. 

Mr.  Withers:  Mr.  President,  I  rise  to  a  question  of  personal  privilege.  I  do  so 
with  a  feeling  of  regret  and  apology;  but  with  a  feeling  that  in  justice  to  myself  per- 
sonally three  things  should  be  corrected: 


3093  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

First.  It  has  been  stated  in  certain  newspapers  in  the  State  that  this  motion  was 
offered  in  the  interests  of  a  certain  gentleman's  candidacy  for  a  certain  office  and 
against  the  candidacy  of  a  certain  other  gentleman  for  the  same  office.  Publicity  has 
been  given  to  that  statement.  I  hope  the  Convention  will  bear  with  me,  because 
I  want  the  Convention — and  I  care  very  little  about  the  public,  because  I  do  not  think 
it  is  much  concerned — to  know  that  that  is  not  true. 

I  offered  the  resolution  individually,  without  any  idea  of  that  sort  v/hatsoever,  and 
my  position  in  the  last  campaign  in  this,  State  absolutely  negatives  such  an  idea.  That 
is  correction  No.  1. 

The  same  newspapers  have  stated  that  the  result  was  revolutionary,  destructive, 
and  absolutely  in  defiance  of  all  precedent.  Without  attempting  to  argue  that  point, 
I  want  the  Convention  to  know,  if  it  does  not  already  know,  that  twenty  of  the  States 
of  the  Union,  and  among  them  the  best,  have  exactly  the  plan  that  was  adopted  in 
the  legislative  article. 

The  third  point  to  which  I  wish  for  a  moment  to  ask  your  attention  is, 
that  it  has  been  s,tated  that  it  was  offered  without  the  knowledge  of  any  one;  that  it 
was  put  through  under  a  misapprehension,  without  discussion  and  without  the  knowl- 
edge of  this  Convention  as  to  the  fact  that  such  a  resolution  was  before  it.  That 
charge  has  been  iterated  and  reiterated  in  the  Richmond  Dispatch,  which  publishes 
the  official  proceedings  of  this  Convention.  I  do  not  care,  Mr.  President,  to  be  put 
in  such  a  position  before  any  body  of  which  I  am  a  member.  In  the  Richmond  Dis- 
patch of  January  17th,  which  I  hold  in  my  hand,  and  in  the  official  report  of  the  pro- 
ceedings of  this  Convention,  is  the  notice  given  by  me  two  or  three  times,  which  I  will 
not  take  up  your  time  to  read,  that  on  the  next  day  or  at  such  time  as  a  certain  sec- 
tion was  reached,  I  would  move  to  reconsider  sections  2  and  3,  for  the  purpose  of  doing 
away  with  hold-over  senators.  That  identical  language  was  used  by  me  two  or  three 
times  on  the  16th  day  of  January.  Now,  in  the  Dispatch  of  the  18th  day  of  January 
is  a  full  report  of  the  proceedings  and  discussions  upon  the  motion  of  which 
I  had  given  notice  the  day  prior;  and  there  appears  in  this,  the  same  newspaper,  that 
has  charged  again  and  again  that  there  was  no  opportunity  given  to  discuss  this  mat- 
ter, all  but  a  fraction  of  seven  columns  of  debate  upon  the  subject;  showing  that  no 
trick  was  worked  upon  the  Convention,  that  no  parliamentary  strategy  or  manoeuvre 
was  resorted  to,  but  that  full  notice  was  given,  and  that  the  reason  assigned  was  the 
desire  not  to  have  hold-over  senators,  whether  you  had  quadriennial  or  biennial  elec- 
tions. 

I  want  to  make  this  statement,  Mr.  President,  for  the  reason,  first,  that  I  want  the 
recollection  of  this  body  refreshed  as  to  the  fact  that  due  notice  was  given  of  the 
amendment  I  proposed  to  offer,  the  meaning  of  it,  the  purpose  and  the  intent  of  it; 
and,  secondly,  that  no  trick  was  resorted  to,  but  that,  as  any  member  can  see  by  in- 
specting the  Dispatch  of  January  18,  1902,  there  appears  there  all  but  a  fraction  of 
seven  columns  of  discussion,  in  which  six  or  eight  gentlemen  took  part. 

With  that  explanation,  I  hope  I  have  made  myself  clear  to  the  Convention,  and 
that  is  the  only  body  I  care  to  inflict  the  explanation  upon. 

Mr.  R.  Walton  Moore:  A  little  while  ago,  Mr.  President,  I  read  a  resolution  which 
I  had  prepared,  or  was  in  the  act  of  preparing.  Since  then  my  friend  from  Northum- 
berland has  suggested  that  the  matter  be  put  in  a  little  different  shape,  to  deal  with 
it  a  little  more  simply  than  as  I  had  prepared  it.  So,  instead  of  reading  again  or 
offering  the  resolution  which  I  read,  I  now  read  the  resolution  as  prepared  by  him. 

Resolved,  That  the  Committee  on  Revision  be  and  they  are  hereby  empowered 
and  directed  to  so  amend  the  article  on  the  legislative  department,  as  to  provide  that 
all  the  members  of  the  Senate  be  elected  once  every  four  years  for  a  term  of  four  years, 
and  the  members  of  the  House  of  Delegates  be  elected  biennially  for  a  term  of  two 
years,  as  is  at  present  provided  in  the  said  article. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3093 

The  language  "at  present  provided  in  said  article"  applies  to  the  House  of  Dele- 
gates.   The  change  is  expressed  in  that  portion  of  the  resolution  which  reads: 

Provided,  That  all  the  members  of  the  Senate  be  elected  once  every  four  years  for 
a  term  of  four  years. 

Mr.  Cameron:  Mr.  President,  I  will  not  detain  the  Convention  further  than  to  say 
that  I  am  one  of  those  who  occupy  the  position  of  the  gentleman  from  Hanover  (Mr. 
Carter),  on  the  legislative  proposition,  and  of  the  gentleman  from  Danville,  that  after 
consultation  with  others,  composing  that  element,  I  feel  justified  in  saying  that  this 
compromise  is  one  that  should  be  accepted,  and  I  hope  we  will  find  in  this  a  ground 
of  common  agreement,  and  that  with  practical  unanimity  the  Convention  will  agree  to 
this  resolution.  (Applause.) 

Mr.  Hatton:  Mr.  President,  I  was  one  of  those  who  opposed  on  this  floor  the 
adoption  of  the  clause  of  the  Constitution  relating  to  the  election  of  senators,  and  I, 
of  course,  would  logically  be  in  favor  of  rescinding  the  action  of  the  Convention  as 
it  now  stands.  But  I  am  expected  to  vote  for  the  rescinding  resolution  under  an 
implied  agreement  that  those  who  vote  for  it  will  accept  the  proposed  compromise.  I 
cannot  vote  for  the  rescinding  resolution,  and  will  not  vote  for  it  with  any  such  under- 
standing. The  so-called  compromise  measure  in  no  wise  meets  my  objections,  and 
rather  than  join  in  this  compromise  with  those  who  advocated  such  a  radical  departure 
from  a  fundamental  principle,  which  has  obtained  in  our  government  from  its  founda- 
tion, I  prefer  to  let  those  who  want  it  shoulder  the  responsibility  for  it  without  co- 
operation from  me. 

I  do  not  desire  to  be  considered  arbitrary  or  unyielding,  but  I  must  stand  for  a 
principle  which,  as  I  conceive,  stands  at  the  very  root  of  the  organization  of  the 
legislative  branch  of  our  State  government.  This  is  no  time  for  a  re-argument  of  this 
question,  but  I  think  my  position  requires  this  explanation.  I  oppose  any  change  in 
the  election  of  senators,  because  from  the  beginning  of  this  government  down,  I  be- 
lieve, to  1850,  the  Senate  of  Virginia  was  divided  into  three  classes,  so  that  the  Sen- 
ate represented  public  opinion  in  the  State  at  three  different  and  distinct  periods. 
Since  1850  the  senators  have  been  divided  into  two  classes  so  that  the  Senate  represented 
public  opinion  in  the  State  at  two  different  periods.  The  reason  for  this  is  plain.  It  was 
designed  to  protect  the  people  against  one  of  the  evils  of  popular  government,  against 
hasty  legislation  incident  to  some  great  wave  of  public  sentiment,  which  sometimes 
sweeps  over  a  people  and  causes  them  to  become  unmindful  of  the  possible  consequences 
of  their  acts.  It  was  to  place  in  the  General  Assembly  the  leaven  of  conservatism  and 
to  insure  as  far  as  possible  the  presentation  of  both  sides  of  all  questions  in  times  of 
public  excitement. 

As  the  provision  now  is  in  the  Constitution,  which  we  have  just  framed,  the  Senate 
will  constitute  only  one  class.  Therefore,  they  will  represent  public  opinion  in  the 
State  only  at  one  period,  and  this  so-called  compromise  does  not  change  that  position 
in  any  particular  or  in  any  degree,  whether  the  senators  are  elected  every  two  years, 
or  are  elected  every  four  years.  If  they  are  elected  at  the  same  time  the  main  object 
of  having  two  houses  in  our  General  Assembly,  I  say,  is  defe?tted,  and  when  the  reason 
for  the  existence  of  the  Senate  ceases,  the  logical  consequence  is  the  abolition  of  the 
Senate,  and,  inasmuch  as  economy  is  the  reason  first  assigned  by  the  advocates  of 
this  measure,  they  should  have  been  logical  and  carried  their  reasons  to  their  legiti- 
mate conclusion  and  abolished  the  Senate.  For  these  reasons  I  desire  to  go  on 
record  as  against  any  such  agreement.  It  is  a  one-sided  compromise,  and  therefore,  it 
is  no  compromise  at  all.  With  that  explanation  I  wish  to  say  that  I  shall  vofe  against 
it. 

Mr.  Turnbull:  Mr.  President,  I  simply  wish  to  say  that  while,  as  is  known  to 
all  the  members  of  the  Convention,  I  favor  quadriennial  sessions  of  the  Legislature. 
I  think  the  compromise  spoken  of  by  these  gentlemen  is  a  proper  one,  and  I  shall  sup- 
port it. 


3094  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Brown:  Mr.  President,  I  have  been  one  of  those  who  have  occupied  the  posi- 
tion from  the  beginning  of  the  session  in  favor  of  biennial  elections  of  representatives 
for  terms  of  two  years;  for  biennial  sessions,  and  for  four-year  terms  for  senators — 
one-half  of  the  Senate  to  be  elected  biennially.  Under  that  arrangement  v/e  would  have 
the  exact  state  of  affairs  that  we  have  now.  The  gentleman  from  Portsmouth  has  ex- 
pressed my  views  in  regard  to  the  desirability  of  retaining  the  time-honored  institu- 
tion of  a  hold-over  Senate,  and  has  done  it  more  forcibly  than  I  could  have  done,  and 
I  fully  endorse  everything  he  has  said  as  to  the  superiority  of  the  plan  we  have  al- 
ways had,  and  which  those  who  have  agreed  with  me  throughout  this  whole  contro- 
versy have  consistently  contended  should  be  preserved.  This  Convention,  however,  at 
one  time,  in  the  Committee  of  the  Whole,  adopted  a  resolution  which  provided  for 
quadrennial  elections  of  senators  and  members  of  the  House  of  Delegates,  and  for 
quadrennial  sessions  of  the  General  Assembly.  That  was  very  far  from  my  original 
idea,  or  from  anything  that  I  felt  I  could  support.  After  a  hard  fight,  tffis  position 
was  subsequently  reversed  in  the  Convention,  and  provision  made  for  biennial  election 
for  terms  of  two  years  for  s-enators  and  for  members  of  the  House  of  Delegates,  and 
for  biennial  sessions. 

That  is  tbe  present  status  of  the  matter  in  the  Convention,  and  I  am  equally  un- 
willing to  agree  that  this  provision  should  be  retained.  The  so-called  compromise  plan, 
now  proposed,  provides  for  biennial  elections  of  members  of  the  House  of  Delegates  for 
terms  of  two  years,  and  for  quadrennial  elections  of  s,enators  for  terms  of  four  years — 
the  election  of  all  the  senators  to  take  place  at  one  time  at  each  alternate  election  for 
members  of  the  House  of  Delegates.  It  also  provides  for  biennial  sessions  of  the 
General  Assembly.  I  conclude  that  the  plan  contemplates  that  the  members 
of  the  House  of  Delegates  will  be  elected  at  the  same  time  the  Governor 
is  elected,  and  the  senators  and  a  new  House  of  Delegates  will  be  elected 
at  the  subsequent  biennial  election,  that  takes  place  in  the  middle  of  the  Governor's 
term  of  office.  It  is  true  that  under  this  arrangement  we  do  not  preserve  in  the 
best  form  the  fundamental  principles  which  the  gentleman  from  Portsmouth  has  so 
forf^ibly  shown  to  stand  as  the  very  essence  of  the  organization  of  the  legislative 
branch  of  the  State  government.  The  application  of  the  principle  is  really  diverted, 
and  it  now  appears,  in  this  compromise  measure  in  a  more  exaggerated  and  different 
form.  The  position  of  those  gentlemen  who  have  oppo&ed  the  retention  of  the  original 
system,  and  who  have  advocated  the  radical  changes  contemplated  by  the  Convention  in 
its  action  up  to  this  time,  have  forced  those  of  us  that  have  contended  for  the  reten- 
tion of  the  original  status  to  agree  to  accept  this  so-called  compromise,  that  really 
takes  us  beyond  what  we  would  be  willing,  under  other  circumstances,  to  recognize  as 
a  proper  solution. 

We  will  in  future,  if  this  compromise  is  carried  out,  have  a  Governor  and  House 
of  Delegates  elected  and  going  into  ofRce  together,  and  a  hold-over  Senate  of  forty 
members,  instead  of  a  Governor,  House  of  Delegates,  and  one  half  the  Senate  elected 
and  going  into  office  at  the  same  time,  v/ith  one  half  the  Senate  as  hold-overs,  as 
originally  intended,  to  preserve  the  feature  of  conservatism  in  the  legislative  branch 
of  the  government.  Then,  in  the  middle  of  the  Governor's  term,  there  will  be  an 
election  in  which  all  the  Senate  and  all  the  House  of  Delegates  will  come  up  for  elec- 
tion, and  if  a  wave  of  impulse  sweeps  the  State,  there  will  remain  as  the  element 
of  conservatism  the  Governor,  elected  two  years  previously,  with  his  right  to  exercise 
his  veto  power,  and  with  the  temptation  to  yield  to  temporary  pressure  in  large  meas- 
ure relieved  by  reason  of  his  ineligibility  to  succeed  himself,  though  the  temptation 
to  popularize  himself  with  the  General  Assembly,  with  a  view  to  a  possible  election 
to  the  United  States  Senate,  might  furnish  an  offset  to  the  conservative  influence  of 
his  ineligibility  to  succeed  himself  as  Governor.  This  is  a  remote  contingency,  I  con- 
ceive, and  one  that  would  not  weigh  heavily  with  men  of  the  type  of  those  Virginia 
has  honored  and  will  honor  by  election  to  the  high  office  of  Governor.    The  balance  in 


DEBATES  OF  THE  CONSTITUTIONAL  COXVENTION  OF  VIRGINIA. 


3095 


favor  of  conservatism  and  legislation  is  retained  in  a  measure,  "but  not  in  the  sj^m- 
metrical  manner  of  the  original  system,  for  it  vests  all  the  power  of  controlling  legis- 
lation at  one  session  in  a  full  holdover  Senate,  not  immediately  responsive  to  the  last 
expression  of  the  people,  and  at  the  succeeding  session  places  the  responsibility  of  con- 
servatism in  legislation  upon  the  Governor,  thus  making  him  more  identified  with  and 
responsible  for  legislation  than  he  should  be  as  the  direct  representative  of  the  ex- 
ecutive branch  of  the  government.  I  cannot  recognize  this  proposed  compromise  as  an 
improvement  upon  the  original  system,  as  I  conceive  it  destroys  the  proper  balance 
that  should  obtain  between  the  executive  and  the  legislative  branches  of  the  govern- 
ment. 

It  is,  however,  a  compromise,  in  which  both  sides  gain  something.  Those  who 
stood  with  us  and  won  the  fight  for  biennial  elections  and  sessions,  as  against  quad- 
rennial elections  and  sessions,  retain  biennial  elections  and  sessions.  Those  who 
stood  originally  for  quadrennial  elections  of  Senate  and  House  and  for  quadrennial 
sessions,  and  consequently  for  the  election  of  all  the  Senate  at  one  time,  and  who  suc- 
ceeded in  securing,  in  the  plan  finally  adopted  by  the  Convention,  the  election  of  the 
whole  Senate  biennially  for  terms  of  two  years,  retain  the  principal  feature  of  their 
contention,  which  is  that  the  whole  membership  of  the  Senate  shall  be  elected  at  one 
election  at  the  time  a  House  of  Delegates  is  elected,  thus  giving  the  people  the  oppor- 
tunitj"  to  make  an  entire  change  in  the  legislative  bodies  at  one  election. 

Those  of  us  who  have  contended  for  the  retention  of  the  hold-over  feature  of  the 
Senate  as  a  force  for  conservatism  in  legislation,  can  feel  that  this  object  is  preserved 
to  an  extent  in  this  proposed  plan,  though  in  a  more  objectionable  manner,  from  our 
point  of  view,  I  respectfully  submit,  and  without  the  proper  and  symmetrical  balance 
that  obtains  under  the  original  system,  as.  I  have  attempted  to  explain. 

In  view  of  the  present  temper  and  inclination  of  this  body,  I  feel  that  this  is 
the  best  and  fairest  solution  that  can  be  reached,  and  though  I  cannot  get  my  judg- 
ment to  endorse  it  fully  as  most  wise,  as  an  original  proposition,  still  I  am  glad  to  say 
that  I  shall  support  it  as  the  best  thing  to  do  under  all  the  circumstances. 

Mr.  Watson:  Mr.  President,  having  undertaken  to  speak  for  the  gentleman  from 
Appomattox  this  morning,  in  his  absence,  I  would  ask  the  attention  of  the  Conven- 
tion for  a  moment.  I  suppose  in  his  absence  his  motion  to  rescind  will  have  to  be 
taken  up  by  this  body.  I  want  to  have  the  opportunity,  myself,  of  showing  this  Con- 
vention that  there  is  some  compromise  that  Tcan  agree  to  on  some  subjects  (applause), 
and,  therefore,  speaking  for  myself,  I  will  say  that  I  shall  vote  for  it.  , 

Mr.  Keezell:  Mr.  President,  my  attitude  in  reference  to  this  matter,  I  think,  is 
pretty  generally  known,  as  I  took  some  part  in  the  discussion  at  the  time  when  this 
present  article  was  incorporated  in  the  Constitution.  There  has  been  but  one  trouble 
that  I  have  recognized  in  connection  with  the  action  at  all,  and  that  is  the  difficulty 
which  will  be  experienced  in  large  senatorial  districts  of  getting  suitable  candidates 
to  make  a  canvass  of  three  or  four  counties,  in  order  to  serve  onlj^  in  a  sixty-day 
session  of  the  Senate.  That  has  been  the  only  difficulty  I  have  had  with  reference  to 
the  action  taken  by  the  Convention  at  a  former  time.  I  think  this  compromise  pro- 
posed now  does  away  with  that  objection  in  that  it  gives  the  men  who  stand  for  elec- 
tion to  the  Senate  a  four-year  term,  and  will  probably  tend  to  induce  different  and 
better  men  to  make  the  canvas  for  the  Senate,  from  what  you  would  get  with  the 
sixty-daj^  term.  I  think  a  great  many  of  the  objections  to  the  hold-over  senator  are 
done  away  with  in  this  provision.  It  gives  the  people  an  opportunity  every  four 
years,  if  the  Senate  stands  in  the  way  of  their  wishes,  to  get  rid  of  the  entire  body, 
and  to  put  another  body  there,  which  it  cannot  do  under  the  hold-over  plan,  and  I, 
for  one,  am  perfectly  willing  to  accept  this  compromise  as  a  fair  solution  of  the  whole 
difficulty. 

Mr.  Wysor:  Mr.  President,  I  wish  to  say  that  I  voted  originally  for  this  very  codj 
promise  now  offered.    The  Journal  will  show  it.    (Laughter.)    And  I  hope  it  will  be 


3096 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


adopted.  If  it  turns  out  to  be  a  good  thing,  and  the  people  are  pleased  with  it,  I  will 
claim  the  authorship  of  it.  (Laughter.) 

The  Presiding  Officer:  The  resolution  offered  is  really  not  strictly  in  order,  but 
the  Chair  will  put  it,  in  the  absence  of  objection.    The  Chair  hears  none. 

The  question  having  been  taken,  the  result  was  announced — ayes,  54;  noes,  13. 

The  resolution  was  adopted. 

Mr.  R.  Walton  Moore:  I  move  that  when  the  Convention  adjourns  to-day  to  meet 
on  the  22d  day  of  May,  1902,  it  be  to  meet  at  12  o'clock  meridian  on  that  day,  instead 
of  10  o'clock. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Quarles,  the  Convention  adjourned  until  Thursday,  May  22,  1902, 
at  12  o'clock  M. 

(Cheers  and  applause.) 


THURSDAY,  May  22,  1902. 

The  Convention  met  at  12  o'clock  meridian. 
Prayer  by  Rev.  George  C.  Cooper,  of  Richmond. 

FINAL   REVISION   AND  ADJUSTMENT, 

The  President:  The  regular  order  of  business  is  the  report  of  the  Committee  on 
Final  Revision  and  Adjustment. 

Mr.  William  A.  Anderson:  Mr.  President,  I  am  instructed  by  the  Committee  upon 
Final  Revision  and  the  Schedule,  to  submit  to  the  Convention  their  report,  with 
the  draft  of  the  Constitution  as  revised  by  the  committee.  I  will  not  read  the  whole 
of  the  report,  because  it  cannot  well  be  acted  upon  until  it  has  been  printed,  but  I 
ask  permission  to  read  the  last  paragraph  of  the  report: 

In  the  draft  of  the  instrument  referred  to  this  committee  there  is  no  declaration 
as  to  how  the  Constitution  shall  be  adopted,  or  when  it  shall  go  into  effect.  The 
decision  of  the  mode  by  which  the  Constitution  shall  be  adopted  necessarily  controls, 
largely,  the  determination  of  the  question  as  to  when  it  should  go  into  operation. 
This  is  a  question  which  the  committee  considers  not  to  be  within  its  province  to 
pass  upon.  It  is  one  which  the  Convention  must  decide  before  an  election  ordinance, 
or  other  enactment  necessary  to  carry  out  its  provisions  can  be  satisfactorily  formu- 
lated. Your  committee  therefore  respectfully  recommend  that  the  Convention  shall 
immediately  determine  in  what  manner  the  Constitution  shall  be  adopted — whether 
it  shall  take  effect  after  its  ratification  by  the  vote  of  the  people  or  shall  be  ordained 
by  the  Convention — so  that  your  committee  may  prepare  and  submit  such  ordinance 
or  other  declaration  as  may  be  appropriate  to  give  effect  to  the  will  of  the  Conven- 
tion upon  this  subject. 

I  move,  sir,  that  the  report  and  the  accompanying  documents  may  lie  upon  the 
table,  and  that  the  report  be  printed  for  the  use  of  the  Convention. 
The  report  of  the  Committee  on  Final  Revision  is  as  follows: 

REPORT  OF  THE  COMMITTEE  UPON  FINAL  REVISION  AND  ADJUSTMENT  OF 
THE  VARIOUS  PROVISIONS  OF  THE  CONSTITUTION,  AND  UPON  THE 
SCHEDULE. 

To  the  Honorable  John  Goode,  President  of  the  Convention: 

This  committee  has  carefully  considered  the  various  articles  of  the  Constitution, 
referred  to  it  by  the  Convention,  and  the  provisions  to  be  embodied  in  the  Schedule, 
and  begs  leave  to  submit  herewith  the  draft  of  the  Constitution  as  revised,  and  of 
the  Schedule  as  prepared  by  it. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


3097 


In  discharging  this  branch  of  its  duty  your  committee  has  observed  the  rule  of 
making  no  changes  in  the  articles  as  they  were  adopted  by  the  Convention,  except 
such  as  are  necessary  or  proper  to  give  greater  clearness  and  conciseness  to  the 
expression  of  what  is  believed  to  be  the  true  intent  and  meaning  of  the  Convention. 
Some  changes  were  necessary  to  reconcile  actual  or  apparent  inconsistencies,  to  cor- 
rect occasional  incongruities,  and,  in  a  few  instances,  by  the  introduction  of  sub- 
stantive provisions,  to  supply  palpable  omissions,  in  order  to  give  full  effect  to  the 
evident  purpose  of  the  Convention. 

In  several  cases  provisions,  which  were  deemed  unnecessary,  either  because 
already  embodied,  in  terms,  in  some  other  clause  of  the  Constitution,  or  because  they 
were  substantially  embraced  in  the  language  used  in  other  parts  of  the  instrument, 
have  been  eliminated. 

The  changes  your  committee  has  made  relate  generally  to  punctuation,  diction, 
and  the  arrangement  and  transposition  of  sentences,  paragraphs,  and  sections,  so 
as  to  secure  greater  conciseness  and  perspicuity. 

In  some  instances,  notably  in  the  article  in  reference  to  "The  Elective  Fran- 
chise," and  that  relating  to  "Agriculture  and  Immigration,"  the  text  as  it  was  adopted 
by  the  Convention  has  been  largely  recast  by  the  committee. 

In  those  articles,  as  well  as  in  other  portions  of  the  Constitution,  sections  and 
•sentences  have  been  transposed,  rearranged,  or  consolidated  with  others  relating  to 
the  same  subject,  so  as  to  connect  corelated  subjects,  and  to  preserve  a  proper  asso- 
ciation or  subordination  of  provisions  having  a  common  object.  But  no  substantial 
change  in,  or  addition  to,  the  instrument  has  been  made,  except  when  such  amend- 
ments were  clearly  necessary  to  the  efRcient  operation  of  the  articles  as  they  came 
to  us  from  the  Convention. 

It  would  be  a  tedious  and  unsatisfactory  task  to  attempt  to  point  out  in  detail 
the  various  changes  made.  They  can  be  best  observed,  understood,  and  appreciated 
by  ^  a  critical  comparison  of  the  original  draft  with  this  redraft  of  the  instrument, 
article  by  article,  and  we  respectfully  request  that  such  comparison  be  made  by  the 
members  of  the  Convention. 

^  Schedule. 

The  Schedule  is  designed  to  avoid  the  possibility  of  an  interregnum  in  any  of  the 
essential  departments  of  government,  pending  the  transition  from  the  old  to  the  new 
Constitution,  and  to  so  adjust  the  old  order  of  things  to  the  new  that  the  new  organic 
law  and  the  departments  of  the  government  created  by  it,  may  replace  the  old,  and 
be  put  into  prompt  and  efficient  operation  with  the  least  possible  friction. 

To  do  this  it  is  necessary  to  preserve  substantially  all  existing  rights,  remedies, 
and  rights  of  action,  and  to  adjust  the  terms  of  ofRce,  and  the  operation  of  the 
various  governmental  agencies,  as  they  now  exist,  to  those  established  by  the  new 
Constitution,  so  that  the  new  plan  of  government  may  be  inaugurated  with  as  little 
inconvenience  and  disarrangement  of  public  or  private  interests,  as  is  possible  under 
the  circumstances. 

In  order  to  accomplish  these  results,  the  Schedule  has  been  framed  to  continue 
in  office  the  several  officers  abolished  by  this  Constitution  until  the  new  officers  pro- 
vided for  as  their  successors  can  be  chosen  and  installed,  and,  as  a  rule,  to  provide 
for  the  extension  rather  than  the'  abridgment  of  the  terms  of  the  incumbents  of 
those  offices  which  are  preserved,  or  have  their  counterparts  in  the  new  Constitution. 

It  was  considered  that  this  rule  could  not  be  very  well  applied  under  existing 
conditions,  in  the  case  of  the  clerks  of  the  county  and  circuit  courts  in  the  counties 
m  which  there  are  now  separate  clerks  for  these  courts,  without  unduly  discriminat- 
ing m  favor  of  one  or  the  other  of  the  present  incumbents  of  these  clerkships.  It 
IS  therefore  provided  that  the  people  of  these  thirty-seven  counties  shall  at  the  gen- 
eral election  to  be  held  in  November,  1903,  determine  which,  if  either  of  those  officers 
shall  be  retained  in  their  service,  and  that  the  clerk  so  chosen  shall  go  into  office 
on  the  first  of  February,  1904,  contemporaneously  with  the  inauguration  of  the  court 
of  which  he  is  to  be  ex-officio  clerk. 

It  is  impossible,  in  the  nature  of  things,  to  reorganize  the  departments  of  gov- 
ernment upon  new  and  progressive  lines,  inaugurate  radical  reforms  in  its  frame- 
work, and  in  the  organic  law  of  a  free  people,  without  occasioning  some  friction, 
some  inconveniences. 

This  is  particularly  true  under  the  complex  conditions  of  our  present  State  gov- 
ernment, with  the  large  number  of  offices  and  posts  of  honor  or  profit  created  under 
it,  or  variant  tenures,  and  filled  by  incumbents  who  are  doubtless  generallv  desirous 
of  retaining  the  positions  they  hold 

Your  committee  has  labored  earnestly  to  make  a  Schedule  which  would  minim- 
ize these  difficulties. 

I'Jo — Const.  I^eb. 


3098 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


Great  achievements  in  the  better  government  of  peoples,  as  In  the  career  of 
individuals,  are  rarely,  if  ever,  accomplished  without  some  great  sacrifice;  and  we 
trust  that  the  important  benefits  which  will  enure  to  the  whole  people  of  the  Com- 
monwealth from  the  instalment  of  the  excellent  and  progressive  system  of  govern- 
ment provided  for  by  the  new  Constitution  may  prove  a  satisfactory  recom-pense  even 
to  the  few  who  may  sustain  actual  or  fancied  injuries  from  the  change. 

The  Constitution,  as  revised  by  the  committee,  with  the  accompanying  Schedule, 
is  respectfully  submitted  for  the  careful  examination  and  consideration  of  the  Con- 
vention. 

In  the  draft  of  the  instrument  referred  to  this  committee,  there  is  no  declara- 
tion as  to  how  the  Constitution  shall  be  adopted  or  when  it  shall  take  effect. 

The  decision  of  the  mode  in  which  the  Constitution  shall  be  adopted  necessarily 
largely  controls  the  determination  of  the  question  as  to  when  it  shall  go  into  effect. 

This  is  a  question  which  the  committee  considers  it  is  not  its  province  to  pass 
upon.  It  is  a  question  which  the  Convention  must  decide  before  such  election  ordi- 
nance or  other  enactment  as  may  be  necessary  to  carry  out  its  decision  can  be  sat- 
isfactorily formulated. 

Your  committee  therefore  respectfully  recommend  that  the  Convention  shall  im- 
mediately determine  in  what  manner  the  Constitution  shall  be  adopted — whether  it 
shall  take  effect  after  its  ratification  by  a  vote  of  the  people  or  shall  be  ordained 
by  the  Convent^'on — so  that  your  committee  may  prepare  and  submit  such  ordinance 
or  other  declaration  as  may  be  appropriate  to  give  effect  to  the  will  of  the  Conven- 
tion upon  the  subject. 

Respectfully  submitted. 

Mr.  William  A.  Anderson,  chairman  of  the  Committee  on  Pinal  Revision  and 
Adjustment,  moved  that  the  report  made  by  the  committee  be  printed. 
The  motion  was  agreed  to. 

Mr.  Daniel:  I  am  instructed  by  the  Committee  on  Final  Revision  to  offer  the 
following  resolution: 

Resolved  by  the  Convention: 

That  the  Convention  do  proceed  forthwith  to  consider  the  following  question,  viz.: 
Shall  the  Constitution  framed  by  this  body  be  submitted  to  the  whole  electorate 

as  now  constituted  for  ratification  or  rejection? 

If  this  question  be  decided  in  the  negative,  then  this  body  shall  consider  the 

question : 

Shall  the  Constitution  framed  by  this  body  be  submitted  to  the  electorate  pro- 
vided for  in  said  Constitution  for  ratification  or  rejection? 

If  this  question  be  decided  in  the  negative,  then  the  body  shall  consider  the 
question : 

Shall  the  Constitution  framed  by  this  body  be  ordained  by  this  Convention? 

2.  That  until  —  o'clock  the  —  day  of  May,  debate  shall  be  in  order  upon  the 
three  questions  above  stated,  and  they  shall  be  open  to  amendment;  that  then  debate 
shall  close  and  the  vote  be  taken  upon  each  question  in  the  order  named,  until  an 
affirmative  vote  in  favor  of  one  or  another  of  the  propositions  before  the  Convention. 

3.  That  as  soon  as  the  decision  of  the  Convention  is  reached,  its  action  upon  the 
subject  shall  be  referred  to  the  Committee  upon  Final  Revision,  &c,  and  Schedule, 
which  shall  thereupon  report  as  soon  as  practicable  a  proper  provision  of  the  Con- 
stitution, or  of  Ordinance,  to  execute  the  will  of  the  Convention  as  indicated  by  such 
decision. 

Mr.  President,  I  beg  leave  to  state  that  the  time  for  the  closing  of  the  debate 
in  this  resolution  is  left  blank  in  order  that  suggestions  may  be  heard  from  mem- 
bers of  this  body,  and  a  time  fixed  for  closing  the  debate  to  suit  their  convenience. 
The  complete  work  of  the  Revision  Committee  is,  to  some  extent,  retarded  by  not 
knowing  what  disposition  the  Convention  intends  to  make  of  the  Constitution.  They 
have  the  Constitution  before  them,  with  such  immaterial  changes  as  may  possibly 
be  made  in  the  final  revision  of  its  language,  and  the  body  is  fully  apprised  of  the 
nature  of  the  work  which  is  to  be  dealt  with.  It  was  thought  that  the  Convention 
might  consider  at  once  and  reach  a  conclusion  as  to  what  should  be  done  with  the 
Constitution,  and  provide  for  having  the  debate  close  within  a  reasonable  time.  It 
would  be  very  agreeable  to  me  to  know  the  wishes  of  the  Convention  as  to  the  time 
for  closing  the  debate.    We  thought  by  next  Tuesday  every  gentleman  who  desired 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3099 


to  do  so  would  probably  have  had  an  opportunity  to  express  his  views,  and  that  we 
had  better  close  up  the  matter  promptly. 

It  seems  to  me  the  logical  order  of  procedure  would  be  to  determine  first  whether 
the  Constitution  should  be  proclaimed  or  submitted;  because  if  it  is  determined  in 
one  way  the  language  of  the  preamble  would  be  different  from  what  it  would  be  if 
it  was  determined  in  the  other  way.  Therefore  it  seems  to  me  that  to  determine  the 
preamble  before  3'ou  determine  the  question  of  proclamation  or  submission  would 
be  putting  the  cart  before  the  horse.  I  think  the  report  of  the  Committee  on  Revi- 
sion and  the  resolution  of  the  gentleman  from  Campbell  is  correct,  and  I  hope  the 
resolution  of  the  gentleman  from  Campbell  will  be  adopted. 

Mr.  Pettit:  Mr.  President,  I  agree  entirely  with  the  views  of  the  chairman  of 
the  Committee  on  the  Preamble  and  Bill  of  Rights,  and  the  gentleman  from  Ports- 
mouth (Mr.  Hatton).  No  matter  which  of  the  preambles  shall  be  adopted  by  the 
Convention,  it  is  essential  that  the  Convention  shall  itself  first  determine  v^hether 
the  Constitution  is  to  be  proclaimed  or  voted  upon  by  the  people.  It  is  impossible 
to  complete  the  preamble  until  that  question  is  settled,  and  that  question  can  only 
be  settled  by  the  Convention  I  think,  therefore,  that  it  is  perfectly  proper  to  proceed 
with  the  consideration  of  the  resolution  offered  by  the  gentleman  from  Campbell. 

The  President:  The  question  is  on  agreeing  to  the  motion  submitted  by  the 
gentleman  from  Brunswick  TMr.  Tumbull)  to  lay  upon  the  table  the  resolution  offered 
by  the  gentleman  from  Campbell. 

Mr.  Turnbull:  I  make  that  motion  because  I  think  this  is  one  of  the  most  im- 
portant matters  connected  with  the  Constitution,  and  we  should  not  act  hastily  in 
reference  to  it. 

]\Ir.  Daniel:  The  resolution  is  a  very  brief  one,  ]\Ir.  President,  and  there  should 
be  no  difficulty  in  any  gentleman  understanding  it.  It  is  simply  to  the  effect  that 
the  Convention  proceed  forthwith  to  consider  the  question,  first,  of  submitting  the 
Constitution  to  the  whole  electorate;  second,  to  the  restricted  electorate  and  then  as 
to  ordaining  it,  if  the  previous  questions  are  decided  in  the  negative.  It  then  provides 
that  debate  shall  be  in  order  upon  the  three  questions  just  stated,  for  a  time  to  be 
fixed  by  the  Convention;  and  then  debate  shall  close,  and  a  vote  be  taken  upon  each 
question  in  the  order  named  until  an  affirmative  vote  upon  one  or  the  other  of  the 
propositions  before  the  Convention  is  had;  that  as  soon  as  the  decision  of  the  Conven- 
tion is  reached,  its  action  upon  the  subject  shall  be  referred  to  the  Committee  upon 
Final  Revision,  &c.,  and  Schedule,  which  shall  thereupon  report  as  soon  as  practicable 
a  proper  provision  of  the  Constitution,  to  execute  the  will  of  the  Convention  as  indi- 
cated b}'  its  decision. 

If  it  is  in  order  to  do  so  I  would  move  that  the  27th  day  of  May  be  inserted.  I 
will  make  that  motion  if  the  motion  to  lay  on  the  table  is  withdrawn. 

:\Ir.  Turnbull:  I  move  that  the  resolution  lie  on  the  table  until  to-morrow  morn- 
ing, and  be  printed. 

The  ayes  and  noes  were  ordered,  and  being  taken,  the  result  was  announced — 
ayes,  29;  noes,  37. 

The  motion  was  rejected. 

The  President:  The  question  recurs  on  the  resolution  offered  by  the  gentle- 
man from  Campbell  (:\Ir.  Daniel).    There  are  blanks  to  be  filled  in  the  resolution. 

3Ir.  Daniel:  I  move  to  insert  in  the  first  blank  1:30  o'clock,  and  in  the  second 
the  29th  of  May. 

The  President:  The  question  recurs  on  agreeing  to  the  resolution  offered  by 
the  gentleman  from  Campbell. 

The  resolution  was  agreed  to. 

Mr.  R.  Walton  ^loore:  I  move  that,  beginning  to-morrow,  the  order  be  that  the 
Convention  meet  at  10  o'clock,  to  take  a  recess  at  2  o'clock,  re-convene  at  4  o'clock, 
and  continue  in  session  until  6  o'clock. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Barbour  the  Convention  adjourned  until  to-morrow,  Friday, 
May  23,  1902,  at  10  o'clock  A.  M. 


3100 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIKGINIA. 


FRIDAY,  May  23,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  P.  B.  Price,  of  Richmond. 

The  President:  The  order  of  business  this  morning  is  the  consideration  of  the 
resolution  offered  by  the  gentleman  from  Campbell  (Mr.  Daniel)  fixing  the  method 
of  adopting  the  Constitution. 

Mr.  Daniel:  This  Convention,  Mr.  President,  has  framed,  in  my  opinion,  a  most 
excellent  Constitution.  While  articles  and  provisions  in  it,  here  and  there,  might 
meet  the  dissent  of  every  member  in  this  body — one  or  more  of  them — I  believe  it  is 
the  judgment  of  the  intelligent  people  of  the  Commonwealth  that  this  body  has  labor- 
iously and  faithfully  performed  its  task,  and  that  it  is  their  earnest  and  anxious  desire 
that  their  work  should  be  brought  to  fruition  and  fully  accomplished  by  the  new 
Constitution  becoming  our  fundamental  law.  Such  seems  to  me,  Mr.  President,  to 
be  the  predominant  judgment  of  the  people  of  the  State,  but  I  speak,  perhaps,  largely 
under  the  influence  of  the  sentiment  in  the  town  of  Lynchburg,  where  I  was  born 
and  reared,  and  in  which  I  practiced  my  profession,  and  of  the  county  of  Campbell  in 
which  I  lived,  and  where  I  have  had  familiar  opportunities  to  become  acquainted  with 
the  opinions  of  its  people.  At  the  last  court  day  of  Campbell  court  there  was  a  large 
crowd  in  attendance,  and  I  found  the  pervasive  sentiment  was  a  desire  that  this 
Constitution  should  be  adopted.  Before  I  attended  that  court  I  had  heard  by  letter, 
and  had  in  conversation  also  heard,  expressions  of  sentiment  from  many  of  my  con- 
stituents. But  I  was  surprised  to  find  in  my  attendance  upon  court  how  general  and 
how  deep  seated  was  the  desire  for  the  consummation  of  the  work  of  this  Conven- 
tion. I  should  say  also,  in  perfect  candor,  that  the  larger  predominant  sentiment 
was  in  favor  of  its  proclamation. 

I  did  not  myself  feel,  Mr.  President,  that  in  justice  to  my  own  record,  in  justice  to 
the  record  of  the  party  to  which  I  belonged,  as  I  understood  it,  or  in  justice  to  the 
people  of  the  State,  of  whom  I  have  been  for  many  years  a  representative,  that  I 
could  personally  agree  with  that  sentiment.  I,  therefore,  made  to  the  people  a  plain 
and  as  fair  a  statement  as  I  am  capable  of  making,  recited  the  history  of  the  Con- 
stitution in  its  formation  in  this  Convention,  told  them  of  the  articles  therein  from 
which  I  had  dissented,  applauded  those  in  which  I  agreed,  and  further  informed  them 
that  in  my  judgment  it  was  my  duty  to  vote  to  submit  this  Constitution  to  the  entire 
electoral  body  of  this  Commonwealth.  While  the  largely  predominant  sentiment  of 
my  audience  was  in  favor  of  its  proclamation,  they  did  me  the  honor  to  pass  a  reso- 
lution in  which  they  gave  me  plenary  powers  to  vote  as  I  might  deem  right,  and 
further  did  to  me  the  greatest  honor  which  I  feel  I  have  ever  received  in  my  life 
from  my  constituents — expressed  their  entire  confidence  in  me. 

Grateful  as  I  am  to  that  noble  people  of  Campbell  for  the  man^*'  political  honors 
which  they  have  conferred  upon  me,  I  was  more  deeply  touched  and  feel  more 
grateful  to  them  for  this  than  for  any  other,  although  it  leaves  me  in  the  attitude 
here  of  voting,  as  I  shall  candidly  state,  against  the  majority  sentiment  of  those 
from  whom  I  received  my  commission  as  a  representative  in  this  body. 

Recognizing  the  fact,  Mr.  President,  that  this  is  a  representative  government, 
recognizing,  too,  that  I  am  the  servant  of  the  people  of  Campbell,  and  they  my  mas- 
ter; recognizing,  further,  that  I  am  but  the  agent  and  they  the  principal  in  this  trans- 
action, I  related  to  them  the  circumstances  which  made  me  feel  that  as  a  square, 
honorable  man,  I  should  cast  my  vote  in  this  manner.  I  did  not  beg  or  ask  them  in 
my  address  not  to  instruct  me,  though  in  some  of  the  papers  it  has  been  so  stated. 
I  simply  gave  them  a  history  of  the  matter,  and  of  party  and  personal  expressions, 
and  asked  them  to  consider  them,  and  do  as  they  thought  right.  I  am  both  proud  and 
grateful  for  the  fact  that  they  have  left  me  free  to  do  as  I  deem  right,  without  an- 
tagonism to  them. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


3101 


I  need  hardly  recite  the  circumstances,  Mr.  President,  which  brought  me  to  this 
conclusion,  so  familiar  are  they  to  those  who  have  followed  the  history  of  this  trans- 
action. And  I  might,  perhaps,  say  nothing  upon  the  subject  but  for  the  fact  that  my 
own  position  is  somewhat  peculiar  and  exceptional.  In  the  year  1890  the  General 
Assembly  of  the  State  passed  a  resolution  by  which  it  was  provided  that  the  ques- 
tion should  be  submitted  to  the  people  of  the  Commonwealth,  "Shall  the  Constitu- 
tion be  revised  and  amended?"  Before  that  question  was  put  to  the  people  for  them 
to  pass  upon,  there  was  a  Democratic  conventional  assembly  in  the  city  of  Xorfolk.  The 
people  of  Virginia  were  divided  upon  the  queston.  The  Convention  in  some  degree  was 
divided  also.  I  had  the  honor  in  that  Convention  to  occupy  a  place  upon  the  platform 
committee.  I  did  not  draw  that  platform.  Its  language  is  not  my  own,  but  I  made 
it  mj  own  by  voting  for  its  adoption.  Before  that  convention  met,  on  my  opinion 
being  asked  by  constituents  in  various  parts  of  the  State,  I  wrote  a  letter  which  was 
widely  circulated,  in  which  I  stated  that  I  was  in  favor  of  calling  the  Constitutional 
Convention,  and  was  also  in  favor  of  submitting  its  work  to  the  people  in  the  ordi- 
nary way  for  ratification  or  rejection.  At  the  Convention  I  expressed  myself  to  the 
like  effect,  and  after  the  convention  in  various  speeches  I  made  in  different  parts 
of  the  Commonwealth,  I  so  interpreted  the  action  of  the  convention,  and  so  announced 
my  own  conclusion.  The  work  having  been  done  according  to  the  plan  of  that  con- 
vention and  of  the  General  Assembly,  I  feel  that  it  is  not  for  me  to  unpledge  myself, 
nor  for  any  one  else  to  unpledge  me,  and  that  I  am  bound  in  honor  to  deliver  the 
vote  in  the  manner  that  I  prefigured  it. 

I  have  no  question  of  honor  to  raise  with  any  gentleman  who  differs  from  me.  I 
recognize  the  fact  that  each  of  us  here  is  in  the  presence  of  his  peers,  I  make  no 
claim  for  myself.  On  the  contrary,  I  disclaim  that  I  esteem  myself  to  be  in  the 
least  degree  more  honorable,  more  honest,  or  more  faithful,  than  any  of  the  honorable 
gentlemen  who  are  my  associates  upon  the  floor.  It  is  a  matter  of  conscience,  and 
a  matter  of  interpretation  for  each  gentleman  according  to  the  dictates  of  his  own 
intelligence  and  heart,  I  thus  interpret  my  own  duty,  and  have  submitted  my  inter- 
pretation to  my  constituents,  and  I  liaA'e  their  free  accord  to  my  utterance,  and  my 
action  here  in  accord  with  it. 

I  collected,  Mr.  President,  the  opinion  which  I  thus  express  not  only  from  my 
action,  but  from  the  action  of  the  political  party  of  which  I  am  a  member.  At  the 
convention  in  Norfolk  they  expressed  themselves  in  this  language: 

It  is  the  sense  of  this  Convention  that  in  framing  a  new  Constitution  no  effort 
should  be  made  to  disfranchise  any  citizen  of  Virginia  who  had  a  right  to  vote  prior 
to  1861.  nor  the  descendent  of  any  such  person.  And  that  when  such  Constitution 
shall  have  been  framed  it  shall  be  submitted  to  a  vote  of  the  people  for  ratification 
or  rejection;  and  the  Democratic  party  pledges  that  the  expenses  incident  to  a  con- 
stitutional convention  shall  be  kept  down  to  the  lowest  possible  figure. 

Comment  has  been  made  upon  the  fact  that  in  the  phrase  that  expresses  the 
sense  of  this  convention  a  mere  opinion  is  put  forth,  and  that  in  the  latter  phrase  a 
pledge  is  made.  I  admit  that  critically  and  technically  the  comment  is  correct.  It  was 
but  an  opinion  which  the  Xorfolk  convention  expressed;  but- this,  Mr.  President,  is 
the  usual  manner  in  which  political  bodies  communicate  their  views  to  the  public. 
It  was  a  declaration  of  their  conviction  that  the  Constitution  when  prepared  should 
be  submitted  to  the  people.  It  little  matters  in  what  phraseology  that  conviction  was 
couched.  It  was  received  by  the  people  of  this  Commonwealth — here,  there,  and 
everywhere — as  a  declaration  by  the  Democratic  party,  which  had  paramount  direc- 
tion and  influence  in  the  matter,  that  this  Constitution  should  be  submitted  to  the 
people.  Both  in  the  expression  of  what  should  be  submitted,  and  in  the  expression  of 
whom  it  should  be  submitted  to,  I  think  there  is  fair  and  necessary  implication  that 
the  whole  Constitution  should  be  submitted  to  the  whole  people. 


3102  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

What  was  it  that  the  convention  declared  should  be  submitted?  The  Constitu- 
tion to  be  framed  by  this  body,  and  not  a  part  of  the  Constitution.  To  whom  was  it 
to  be  submitted?  To  the  people,  with  no  expression  of  any  part  or  fragment  of  the 
people.  Whatever  may  have  been  in  the  minds  of  the  gentlemen  who  constituted  that 
convention;  whatever  may  have  been  said  in  any  previous  organization  of  a  portion 
of  those  members;  whatever  may  have  been  the  uppermost  desire  and  intent  and  pur- 
pose of  those  v/ho  constituted  it,  this  is  the  language  which  they  uttered  to  the 
people  of  Virginia,  and  this  is  the  interpretation  which  the  people  of  Virginia,  includ- 
ing myself,  placed  upon  it. 

It  has  been  said,  Mr.  President,  that  the  people  have  changed  their  minds.  In 
large  degree  I  do  not  doubt  that  this  is  true.  In  my  own  section  of  country,  I  know, 
if  I  may  know  anything  which  I  collect  by  communing  with  the  people  in  their 
homes,  upon  the  street,  and  in  the  public  gatherings,  I  do  know  that  the  opinion  has 
changed.  I  believe  that  change  of  opinion  to  have  been  widespread.  What  I  say  and 
what  I  do  know  of  my  own  county  I  hear  from  other  gentlemen  here  from  other  coun- 
ties like  accounts,  which  are  substantially  verified  as  my  own;  and  yet,  Mr.  Presi- 
dent, although  the  people  have  changed,  as  myself  a  party  to  this  matter,  as  one  who 
communicated  their  interpretation  of  this  transaction  to  the  whole  people,  I  do  not 
feel  that  I  am  permitted  in  my  own  conscience  to  change  the  conduct  which  I  pre- 
figured as  that  which  would  be  the  conduct  of  my  party  and  myself.  I  admit  that 
this  is  a  serious  and  a  delicate  question  for  any  gentleman  to  determine. 

I  admit  that,  in  endeavoring  to  clearly  analyze  my  own  duty  and  to  deduce  there- 
from what  was  the  highest  standard  of  public  conduct  and  personal  honor  that  should 
guide  me,  I  have  not  been  without  my  perturbations  of  spirit  in  the  face  of  the  senti- 
ment of  so  many  of  my  constituents;  and  yet,  sir,  this  is  my  conclusion  as  to  what 
is  just  and  right;  for  whatever  may  be  the  appearances  of  public  opinion,  which  are 
often  misleading;  whatever  may  be  the  pronunciation  of  public  opinion  in  this  meet- 
ing or  in  that,  there  is  nothing  more  uncertain  in  human  affairs  than  the  verdict  of 
a  jury  or  the  verdict  of  the  people  at  the  polls.  I  have  been  before  elections  in 
which  I  felt  so  confident  of  the  result  that  I  would  have  given  nothing  to  guarantee 
the  morrow's  results,  and  I  have  seen  the  enunciation  in  the  paper  the  next  morning  the 
other  way.  I  have  been  in  those  contests  in  which  I  contemplated  with  apprehen- 
sion the  result,  and  have  seen  the  people  carry  the  election  as  I  had  hoped  with  over- 
whelming majorities.  I  cannot  measure  my  own  conscience  and  my  own  judgment  as 
to  my  opinions  by  the  sentiment  of  the  people,  commanding  as  it  is  of  the  highest 
authority  in  a  government  which  recognizes  that  all  power  adheres  in  and  is  derived 
from  them. 

I  shall  not,  Mr.  President,  pursue  this  matter  in  its  intricate  details.  I  believe 
the  opinion  of  this  body  has  been  made  up.  I  should  have  not  felt  it  necessary  to 
declare  my  own  but  for  the  peculiar  attitude  in  which  I  find  myself.  As  to  the  power 
of  this  Convention  to  proclaim  the  Constitution,  in  my  own  mind  there  is  no  doubt, 
and  in  speaking  upon  this  subject  I  feel  that  it  is  not  unbecoming  that  I  should  state 
my  own  opinion  upon  the  whole  of  it. 

The  Constitution  of  the  United  States,  under  which  we  live,  and  under  which 
this  country  has  gone  forward  and  progressed  as  the  greatest  republic  of  all  time, 
is  a  Constitution  which  never  received  the  individual  vote  at  the  polls  of  a  single 
one  of  the  enormous  population  over  which  it  is  the  fundamental  law.  Neither  the 
Articles  of  Confederation  nor  the  perfected  Constitution  of  the  government  of  the 
United  States  after  the  War  of  the  Revolution,  nor  any  amendment  to  that  instru- 
ment of  the  fifteen  which  have  been  adopted  ever  received  the  sanction  of  a  single 
suffragant  directly  given  at  the  polls.  This  whole  instrument  was  ordained,  even  as 
it  was  prepared,  by  conventional  authority. 

Of  the  constitutions  of  the  States  of  this  Union,  thirteen  of  which  were  adopted 
about  the  time  of  the  Revolutionary  War,  nearly  all  of  them  were  similarly  ordained. 


DEBATES  OF  THE  CONSTITUTIOISrAL  CONVENTION  OF  VIRGINIA.  310rj 

It  is  true  that  Thomas  Jefferson,  one  of  the  most  profound  constitutional  lawyers  who 
ever  lived  upon  this  earth;  a  man  whom  I  have  always  regretted  was  not  a  member 
of  the  convention  which  framed  the  Federal  Constitution;  a  man  whom  I  have 
always  regretted  was  not  a  member  of  the  Supreme  Court  of  the  United  States  in  the 
formative  days  of  this  Republic,  took  the  ground  that  our  first  Constitution  of  Vir- 
ginia was  like  a  mere  act  of  the  Legislature,  because  of  the  fact  that  it  was  pro- 
claimed and  ordained  without  a  vote  of  the  people;  but  he  wa^^  not  sustained  in  that 
judgment.  The  General  Court  of  Virginia  overruled  it  in  a  case  reported  in  1st  Va. 
Cases  20 — a  pioneer  case  in  v'hich  the  doctrine  of  constitutional  authority  to  ordain 
a  constitution  is  set  forth.  I  have  read  somewhere  tha^  George  Wythe,  the  chancellor 
of  renown,  the  tutor  of  Jefferson,  rendered  the  earliest  or  one  of  the  earliest  decisions 
to  the  like  effect. 

Thus  early,  Mr.  President,  in  the  history  of  this  republic,  both  in  State  and  in 
nation,  the  doctrine  was  laid  down  and  sustained  that  conventional  authority  could 
ordain  and  proclaim  a  Constitution.  And  in  Virginia,  v^hatever  may  be  the  tendency 
of  opinion  in  other  States;  whatever  may  be  the  peculiar  decision  of  a  court  in  any 
particular  State,  where  all  the  facts  do  not  run  in  parallel  lines  with  our  own,  tnis  . 
must  be  esteemed,  in  my  judgment,  to  be  American  constitutional  law.  In  Arkansas, 
in  1836,  in  Florida,  in  1839,  constitutions  were  proclaimed.  In  Mississippi,  in  Louis- 
iana, and  in  South  Carolina  we  have  recent  illustrations  of  a  similar  authority. 

In  our  own  particular  constitutional  history,  Mr.  President,  we  have  this  idea 
constantly  illustrated  and  it  is  set  forth,  in  my  opinion,  in  the  Constitution  under 
which  we  live.  The  Constitutional  Convention  of  1830  in  effect  proclaimed  and  or- 
dained its  suffrage  law  by  extending  the  electorate  to  which  the  Constitution  was 
submitted.  What  was  this  but  ordainment?  In  the  present  Constitution  of  the  State 
we  have  two  methods  for  the  revision  or  the  amendment  of  the  existing  Constitution. 
One  is  by  a  process  throno-^"  which  the  General  Assembly  submits  to  the  people  a 
particular  amendment  which  it  has  itself  matured.  After  another  session  of  the 
General  Assembly  that  amendment  goes  before  the  body  politic  at  the  polls,  and 
they  pass  upon  ii.  There  is  also  another  provision  for  the  amendment  of  the  Con- 
stitution, which  provides  that  the  General  Assembly  shall  submit  to  the  people,  by  a 
particular  process  therein  described,  the  question,  "Shall  a  convention  be  called  to 
revise  and  amend  the  Constitution."  That  term  "amend"  is,  to  my  mind,  conclusive 
in  its  meaning.  This  Convention  has  revised  the  Constitution.  "To  "amend"  it  by  the 
new  one  is  to  ordain  it.  In  Federal  legislation  since  the  foundations  of  the  government  a 
somewhat  analogous  question  has  been  presented.  The  House  of  Representatives 
originates  tax  bills.  The  Senate  has  authority  to  amend  them.  Time  and  again  at 
recurring  sessions  of  Congress,  the  question  is  raised  when  the  Senate  has  framed  an- 
entire  document  totally  dissimilar  from  that  which  it  is  seeking  to  amend,  and  seeks 
to  substitute  it,  that  this  is  not  an  amendment  in  the  sense  of  constitutional  law, 
but  undertaking  to  revolutionize,  upset  and  substitute  the  whole  matter.  But  in- 
variably Congress  has  decided  that  the  term  "amendment"  is  a  broad  and  comprehensive 
term;  that  if  you  can  amend  one  word  you  can  amend  all  words,  that  if  you  can 
amend  one  line  you  can  amend  all  lines,  that  if  you  can  change  and  alter  one  provi- 
sion you  can  change  and  alter  all  provisions.  . 

In  this  broad  general  parliamentary  sense  was  that  term  used,  in  my  opinion,  in 
this  Constitution.  The  amendment  to  the  Constitution  applies  to  all  things  in  the 
Constitution,  and  the  power  to  amend  is  the  power  to  control  and  to  adopt  and  to 
make  the  amendment  of  force  and  effect  in  its  enunciation.  The  Kentucky  case  with 
which  this  body  has  been  made  familiar  by  frequent  citation  in  my  opinion  sustains 
the  view  I  have  presented,  and  I  might  readily  multiply  authorities  to  the  like  effect 
if  I  deemed  it  necessary  to  do  so. 

I  shall  not,  Mr.  President,  for  my  part,  prolong  the  discussion.  I  notice  that 
gentlemen  frequently  deprecate  the  speaking  so  much  by  other  people  while  they  do 


3104  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

not  fail  to  exercise  that  privilege  themselves.  I  am  well  aware  that  the  people  are 
desirous  that  the  Convention  should  conclude  its  labors,  and  I  apologize  for  breaking 
a  good  example  by  so  long  detaining  the  Convention  from  that  conclusion.  But  before 
I  take  my  seat,  sir,  may  I  be  permitted  to  congratulate  my  colleagues  upon  the  noble 
work  which  they  have  accomplished.  While  it  is  due  to  candor  that  I  should  say  there 
are  articles  in  this  Constitution  that  I  would  have  voted  and  spoken  against  had  I 
not  been,  unhappily  to  myself,  detained  from  full  attendance  upon  this  Convention 
by  sickness,  the  Constitution  as  a  whole  is  a  work,  in  my  opinion,  worthy  of  the  time- 
honored  State  for  which  it  has  been  framed,  and  confers  great  credit  upon  the  hon- 
orable gentlemen  who  have  so  patiently  and  ably  worked  to  accomplish  it.  (Great 
applause.) 

Mr.  Harrison:  Mr.  President,  I  had  not  intended  to  submit  the  few  remarks  I 
wish  to  make  upon  this  question  at  this  time,  as  I  only  reached  the  Convention  hall 
this  morning.  But  as  there  seems  to  be  some  indisposition  upon  the  part  of  the  other 
gentlemen  who  will  be  heard  in  this  matter  to  speak  at  the  present  time,  and  as 
what  I  have  to  say  will  be  very  brief,  I  will  not  delay. 

I  heartily  agree  with  the  gentleman  from  Campbell  (Mr.  Daniel)  that  this  Con- 
vention has  done  a  magnificent  piece  of  work.  There  are  some  features  of  the  pro- 
posed Constitution  which  do  not  meet  with  my  hearty  approval,  but  there  are  so 
many  advantageous  provisions  in  it  that  the  advantage  in  favor  of  the  Constitution 
which  do  not  meet  with  my  hearty  approval  but  there  are  so  many  advantageous 
provisions  in  it  that  the  advantage  in  favor  of  the  Constitution,  in  my  judgment,  is 
simply  overwhelming.  I  believe  we  have  a  Constitution  under  which  the  people  of 
this  State  can  live  happily  and  under  which  the  State  will  prosper.  I  do  not,  how- 
ever, agree  v/ith  the  gentleman  from  Campbell  as  to  the  powers  of  this  Convention. 
It  is  a  matter  of  serious  import,  because  if  this  Constitution  is  proclaimed  without 
the  legal  right  so  to  do,  the  whole  work  may  go  for  naught.  In  case  of  proclama- 
tion the  work  of  this  body  cannot  be  made  the  work  of  the  people  of  Virginia  without 
a  contest  before  some  tribunal,  which  will  pass  upon  the  question  of  whether  or  not 
we  have  the  power,  which  we  assume  to  exercise  here.  I  am  as  firmly  convinced  as 
I  am  of  any  legal  proposition,  that,  if  we  assume  to  transgress  the  authority  that  the 
people  have  put  into  our  keeping,  that  the  courts  of  this  land  will  declare  what  we 
attempt  to  do  absolutely  nugatory.  Now  I  ask  attention  first,  to  the  proposition  that 
no  constitution  has  the  power  to  place  any  limitation  upon  the  power  of  the  people 
to  change  or  alter  the  Constitution  when  they  so  please.  The  very  headline  of  the 
Bill  of  Rights  in  the  proposed  Constitution,  in  the  old  Constitution,  in  the  Bill  of 
Rights  as  drafted  by  George  Mason  originally,  in  the  Bill  of  Rights  which  the  blood 
of  heroic  ancestors  has  made  the  fundamental  law  of  this  State  sets  out  that  there 
are  certain  inherent,  inalienable,  and  indefeasible  rights,  which  no  compact  can  take 
away  from  the  people.  Such  is  the  language:  "That  all  men  are  by  nature  equally 
free  and  independent,  and  have  certain  inherent  rights  when  they  enter  into  a  state 
of  society,  of  which  they  cannot,  by  any  compact,  deprive  or  divest  of  their  pos- 
terity." 

And  one  of  these  inherent,  and  inalienable,  and  indefeasible  rights  is  that  which 
is  contained  in  the  provision: 

That  government  is,  or  ought  to  be,  instituted  for  the  common  benefit,  protection, 
and  security  of  the  people,  nation,  or  community;  of  all  the  various  modes  and 
forms  of  government,  that  is  best  which  is  capable  of  producing  the  greatest  degree 
of  happiness  and  is  most  effectually  secured  against  the  danger  of  maladministration; 
and,  Vv^henever  any  government  shall  be  found  inadequate  or  contrary  to  these  pur- 
poses, a  majority  of  the  community  hath  an  indubitable,  inalienable,  and  inde- 
feasible right  to  reform,  alter  and  abolish  it,  in  such  a  manner  as  shall  be  judged 
most  conducive  to  the  public  weal. 

It  is  an  inalienable  right  that  cannot  be  alienated  by  any  representative  body 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA.  3105 

of  the  people.  It  is  an  inalienable  and  indefeasible  right  of  which  the  people  them- 
selves, cannot  deprive  their  posterity.  If  the  people  have  not  the  power  to  alter  and 
amend  their  Constitution  as  their  interests  may  demand,  then  the  sceptre  has  de- 
parted from  Jacob,  and  the  government  under  which  we  live  is  not  a  government  of 
the  people,  by  the  people,  and  for  the  people.  Sovereignty  resides  elsewhere  than  in  the 
people.  It  is  an  inalienable  and  indefeasible  right  which  the  people  of  one  day  and 
generation  cannot  impair  or  deny  to  their  posterity.  It  is  the  birthright  of  liberty, 
of  which  each  succeeding  generation  of  Virginians  is  trustee  for  their  posterity.  Con- 
stitutions may  prescribe  the  methods  of  amendment,  and  this  method  may  be  resorted 
to  if  the  people  will,  but  no  constitution  can  deny  or  impair  the  right  to  alter  or 
amend  as  they  will.  Constitutions  can  confer  no  power  upon  delegates  to  future  con- 
stitutional conventions,  nor  deny  to  the  people  the  right  to  confer  such  powers  as 
they  think  expedient.  This  v^^ould  be  to  confer  powers  to  frame  a  government  not 
founded  on  the  consent  of  the  governed.  If  such  were  possible,  then  the  delegates  to 
a  constitutional  convention  would  not  be  the  agents  of  the  people  who  elected  them, 
but  of  the  existing  Constitution  that  confers  the  power  upon  them.  I,  therefore,  do 
not  agree  v/ith  the  gentleman  from  Campbell,  that  Article  XII,  Section  2,  confers  or 
can  confer  any  power  on  this  Convention.  Such  an  attempt  is  wholly  nugatory  and 
void,  if  any  such  attempt  has  been  made. 

In  the  very  section  in  which  this  Constitution  is  said  to  confer  sovereign  power 
upon  the  representatives  to  the  Constitutional  Convention  is  a  clause  which  says 
that  they  shall  pass  no  law  impairing  the  right  of  suffrage.  Are  you  going  to  look 
for  the  powers  of  the  delegates  to  a  constitutional  convention  which  says  that  they 
shall  have  full  powers  and  claim  full  powers  from  that  provision  in  the  Constitution, 
and  yet  deny  that  the  limitation  which  that  Constitution  puts  upon  those  powers  is 
of  any  effect.  Here  is  a  clause,  Section  2,  Article  XII.,  which  says  a  constitutional 
convention  shall  be  called  to  amend  and  revise  the  Constitution,  and  in  the  same 
clause  says  that  they  shall  not  have  the  power  to  alter  certain  provisions  in  regard 
to  suffrage.  Here  is,  if  you  please,  a  grant  of  authority,  and  here  is  a  limitation  of 
that  authority.  How  can  you  say  that  a  constitutional  convention  can  have  the  power 
to  give  authority  which  the  people  cannot  take  from  them,  and  yet  say  that  the  limita- 
tion which  that  Constitution  itself,  puts  upon  their  powers  is  void  and  of  no  effect? 
I  venture  to  say  there  is  not  a  lawyer  in  this  body  who  will  say  that  that  provision 
in   our  Constitution  which  says: 

Provided,  that  no  amendment  or  revision  shall  be  made  which  shall  deny  or  in 
any  way  impair  the  right  of  suffrage,  or  any  civil  or  political  right  as  conferred  by 
this  Constitution,  except  for  causes  which  apply  to  all  persons  and  classes  without 
distinction  is  valid  and  binding  upon  us. 

And  yet  is  not  that  a  restriction  on  the  powers  of  the  delegates  to  this  Conven- 
tion? And  if  it  is  a  restriction  how  can  you  say  that  the  Constitution  can  give  powers, 
and  yet  ignore  the  limitations  which  have  been  placed  upon  them  by  the  same  Consti- 
tution ? 

Gentlemen,  either  that  Constitution  has  full  powers  or  it  has  no  powers  at  all. 
If  a  Constitution  can  prescribe  the  powers  of  the  delegates  to  future  constitutional 
conventions,  then  you  must  take  the  restrictions  it  imposes.  I  claim  that  it  cannot 
confer  powers  nor  impose  restrictions,  and  that  we  cannot  look  at  the  provisions  of 
the  existing  Constitution  to  see  what  powers  we  have  here;  but  must  look  elsewhere. 

Now,  where  do  we  look?  Where  but  to  the  act  under  which  we  were  elected? 
That  is  our  power  of  attorney.  I  desire,  gentlemen,  to  call  attention,  before  I  go 
into  my  own  views,  upon  this  subject,  to  what  some  able  writers  and  some  able 
judges  have  said.  I  suppose  that  no  man  stands  higher  before  the  courts  in  this 
country  than  Judge  Cooley.  It  is  before  the  courts  that  we  have  got  to  meet  this 
issue,  and  not  by  resolutions  in  this  body. 

Judge  Cooley  says: 


3106  DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

In  accordance  with  universal  practice,  and  from  the  necessity  of  the  case,  amend- 
ments to  an  existing  constitution  or  entire  revisions  of  it,  must  be  prepared  and  ma- 
tured by  some  body  of  representatives  chosen  for  the  purpose.  It  is  obviously  im- 
possible for  the  whole  people  to  meet,  prepare,  and  discuss  the  proposed  alterations, 
and  there  seems  to  be  no  feasible  mode  by  which  an  expression  of  their  will  can 
be  obtained  except  by  asking  it  upon  the  single  point  of  assent  or  disapproval.  But 
no  body  of  representatives,  unless  specially  clothed  with  power  for  that  purpose  by 
the  people  when  choosing  them,  can  rightfully  take  definite  action  upon  amendments 
or  revisions;  they  must  submit  the  result  of  their  deliberations  to  the  people — 
who  alone  are  competent  to  exercise  the  powers  of  sovereignty  in  framing  the  funda- 
mental law — for  ratification  or  rejection.  The  Constitutional  Convention  is  the  repre- 
sentative of  sovereignty  only  in  a  very  qualified  sense,  and  for  the  specific  purpose, 
and  with  the  restricted  authority  to  put  in  proper  form  the  questions  of  amendment 
upon  which  the  people  are  to  pass;  but  the  changes  in  the  fundamental  law  of  the 
State  must  be  enacted  by  the  people  themselves. 

And  Mr.  Cooley  pronounces  the  highest  encomiums  upon  Mr.  Jameson's  work.  He 
says  that  but  little  has  been  left  to  be  said,  and  he  endorses  emphatically  all  that 
Mr.  Jameson  has  said.  I  have  not  Mr.  Jameson's  work  here,  but  it  is  emphatic  that 
the  right  to  amend  the  Constitution,  unless  specific  authority  is  conferred,  rests  with 
the  people  alone. 

Now,  sir,  the  new  edition  of  the  American  and  English  Encyclopedia  of  Law,  in 
its  text,  says: 

A  constitutional  convention  untrammelled  by  conditions  imposed  by  the  authority 
calling  the  convention  has  power  to  enact  a  new  Constitution  to  go  into  effect  with- 
.  out  being  submitted  to  the  people  for  ratification.  But  where  the  act  which  a  con- 
vention derives  its  powers  provides  for  the  submission  of  the  convention's  work  to 
the  people  in  a  specific  manner,  the  convention  has  no  power  to  provide  for  its  sub- 
mission in  a  different  manner,  and  of  course  where  such  act,  or  the  Constitution 
itself,  requires  submission  to  the  people,  it  must  be  so  submitted,  and  only  becomes 
operative  upon  the  approval  of  the  electors. 

Mr.  President,  there  have  been  decisions  in  this  matter,  and  if  I  am  right  in  my 
contention  that  one  constitution  has  not  the  power  to  confer  power  upon  the  dele- 
gates to  a  subsequent  constitutional  convention,  then  this  case  that  I  hold  in  my  hand 
is  on  all  fours  with  the  situation  of  affairs  that  confronts  us. 

It  is  the  case  of  Wells  vs.  Bain,  75  Pa.  State  39.  In  that  case  there  was  a 
preliminary  act  of  June  2,  1871,  to  authorize  a  popular  vote  upon  the  question  of  call- 
ing a  convention  to  amend  the  Constitution — using  almost  the  identical  words  we  have 
here: 

Section  1.  That  the  question  of  calling  a  Convention  to  amend  the  Constitution 
of  this  Commonwealth  be  submitted  to  a  vote  of  the  people  at  the  general  election 
to  be  held  on  the  second  Tuesday  of  October  next,  the  said  question  to  be  voted  upon  in 
the  manner  following — to-wit: 

And  all  votes  cast  as  aforesaid  shall  be  received,  counted  and  returned  by  the 
proper  election  officers  and  return  judges  as  votes  for  Governor  are  received,  counted 
and  returned  under  existing  law. 

In  other  words,  that  the  people  of  this  State  were  to  vote  upon  the  question 
whether  there  should  be  a  convention  to  amend  the  Constitution  of  the  State  of 
Pennsylvania. 

A  subsequent  act,  dated  April  11,  1872,  was  passed,  to  provide  "for  calling  a  con- 
vention to  amend  the  Constitution." 

That  act  provided  that  the  Constitution  should  be  submitted  to  the  people  in  a 
particular  method.  The  Convention  submitted  its  work  to  popular  vote,  but  not  in 
the  prescribed  method.  Its  right  to  do  so  was  contested,  and  the  Constitution  was  de- 
clared void. 

The  court  in  that  case  is  emphatic,  and  I  will  ask  the  pardon  of  the  gentlemen  of 
this  Convention  while  I  read,  at  some  little  length,  from  this  opinion.    It  is  an  opinion 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3107 


-delivered  by  one  of  the  ablest  judges  this  country  has  ever  produced,  Chief  Justice 
Agnew,  and  it  is  so  admirably  and  forcibly  expressed  that  I  use  the  language  of  the 
Judge  in  preference  to  my  own. 

Since  the  Declaration  of  Independence  in  1776.  it  has  been  an  axiom  of  the 
American  people  that  all  good  government  is  founded  in  the  consent  of  the  people. 
This  is  recognized  in  the  second  section  of  the  Declaration  of  Rights  of  the  Consti- 
tution of  Pennsylvania,  which  affirms  that  the  people  "have  at  all  times  an  inalien- 
able and  indefeasible  right  to  alter,  reform,  or  abolish  their  governments  in  such 
manner  as  they  may  think  proper."  A  self-evident  corollary  is,  that  an  existing  law- 
ful government  of  the  people  cannot  be  altered  or  abolished  unless  by  the  consent 
of  the  same  people,  and  this  consent  must  be  legally  gathered  or  obtained.  The 
people  here  meant,  are  the  w^hole — those  who  constitute  the  entire  State,  male  and 
female  citizens,  infants  and  adults.  A  mere  majoritj^  of  those  persons  who  are 
qualified  as  electors  are  not  the  people,  though  when  authorized  to  do  so,  they  may 
represent  the  vvhole  people. 

In  other  words,  this  is  a  constitutional  provision  for  the  benefit  of  all  the  people 
of  the  State,  young  and  old,  male  and  female,  and  the  people  who  are  authorized  to 
speak  for  them  are  the  lawful  and  qualified  electors  of  the  State. 

The  Court  goes  on  to  say: 

The  words  'in  such  manner  as  they  may  think  proper,'  in  the  Decla.ration  of 
Rights,  embrace  but  three  known  recognized  modes  by  which  the  whole  people,  the 
State,  can  give  their  consent  to  an  alteration  of  an  existing  lawful  form  of  govern- 
ment— viz.: 

1.  The  mode  provided  in  the  existing  Constitution; 

2.  A  law.  as  the  instrumental  process  of  raising  the  body  for  revision  and  con- 
veying to  it  the  powers  of  the  people. 

3.  A  revolution. 

The  first  two  are  peaceful  means  through  which  the  -consent  of  the  people  to 
alteration  is  obtained,  and  by  which  the  existing  government  consents  to  be  dis- 
placed without  revolution.  The  governm.ent  gives  its  consent,  either  by  pursuing 
the  mode  provided  in  the  Constitution,  or  by  passing  a  law  to  call  a  convention.  If 
consent  be  not  so  given  by  the  existing  government,  the  remedy  of  the  people  is  in 
the  third  mode — revolution. 

When  a  law  becomes  the  instrumental  process  of  amendment,  it  is  not  because  the 
Legislature  possesses  any  inherent  power  to  change  the  existing  Constitution  through 
a  convention,  but  because  it  is  the  only  means  through  which  an  authorized  consent 
of  the  whole  people,  the  entire  State,  can  be  lawfully  obtained  in  a  state  of  peace. 
Irregular  action,  whereby  a  certain  number  of  people  assume  to  act  for  the  whole 
is  evidently  revolutionary.  The  people,  that  entire  body  called  the  State,  can  be 
bound,  as  a  whole,  only  by  an  act  of  authority  proceeding  from  themselves. 

In  a  state  of  peaceful  government  they  have  conferred  this  authoritv  to  speak 
for  the  whole  only  at  an  election  authorized  by  law.  It  is  only  when  an  election 
K  authorized  by  law,  the  electors  to  represent  the  State  or  whole  pponle  are  bound 
to  attend,  and  if  they  do  not,  can  be  bound  by  the  expression  of  the^will  of  those 
who  do  attend.  The  electors  v/ho  can  pronounce  the  voice  of  the  people  are  those 
alone  who  possess  the  qualifications  sanctioned  by  the  people  in  order  to  represent 
theni  otherwise  they  speak  for  themselves  only  and  do  not  represent  the  people 

If  the  Legislature,  possessing  these  powers  of  government,  be  unwilling  to  pass 
Vj'Zlli    f        f"'^  delegate  to  a  convention  all  the  powers 

fands    tiev  r.'f.T    t''""'"'  ^^'^  '^^1^  delegates,  the  remedy  is  still  in  their  own 
^^^""^  ''^''^  representatives  at  will.    If  their  representatives  are  still 
unfaithful  or  the  government  becomes  tyrannical,  the  right  of  revolution   yet  re- 
mams. 


This  case  was  not  called  up  by  a  convention  undertaking  to  proclaim  a  constitu- 
tion. They  did  not  dare  to  do  it.  But  they  submitted  the  constitution  to  a  vote  in  a 
way  that  was  not  authorized  by  the  Legislature  of  the  State,  and  the  Supreme  Court 
said  that  even  if  the  people  had  voted  to  call  a  convention  to  amend  the  constitution 
the  act  controlled  the  powers  of  the  delegates  to  that  convention,  and  they  were  con- 
cluded by  it.  Why,  sir,  how  can  it  be  said  that  if  the  Legislature  has  disobeved  the 
mandate  of  the  people,  and  has  not  called  the  convention  in  accordance  with  the  con- 


3108  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

ditions  under  which  the  people  commanded  them  to  call  it,  that  thereby  the  delegates 
of  the  Constitutional  Convention  gain  an  authority  which  the  people,  in  electing 
them,  did. not  give  to  them. 

Mr.  Robertson:  I  did  not  quite  understand  whether  that  act  was  passed  after 
the  calling  of  the  convention. 

Mr.  Harrison:  Yes,  sir,  the  first  act  was:  Shall  there  be  a  Convention  to  amend 
the  Constitution— just  as  it  was  in  this  State.  You  will  find  here  later  on,  when  I 
come  to  the  meaning  of  the  word  "amend"  that  this  case  passed  directly  on  that 
question,  and  held  that  a  vote  calling  the  Convention  to  amend  the  Constitution 
did  not  confer  upon  that  Constitutional  Convention  the  right  to  proclaim. 

Mr.  Thom:  Do  I  understand  you  to  say  that,  at  the  time  the  Convention  was 
called  there  was  no  power  in  the  previous  Constitution  under  which  the  Convention 
was  assuming  to  act;  but  that  they  were  assuming  to  act  under  a  call  of  the  Legis- 
lature independently  of  any  constitutional  authority? 

Mr.  Harrison:  That  is  true;  but  I  have  endeavored  to  show  that  the  provision 
in  our  Constitution  is  contrary  to  the  bill  of  rights,  which  says  that  it  is  an  inalien- 
able right  of  the  people  to  call  a  convention  with  such  powers  as  they  please  to 
impose  upon  their  delegates. 

Mr.  Meredith:  You  have  taken  pains  to  prove  as  far  as  you  can,  that  we  can- 
not be  bound  by  a  constitutional  provision.  - 

Mr.  Harrison:    Yes,  sir. 

Mr.  Meredith:  What  I  want  to  ask  is  this:  Are  you  willing  to  admit  that  the 
language  is  broad  enough  to  bind  us,  if  we  could  be  bound? 

Mr.  Harrison:  Oh,  no.  I  am  coming  to  that  presently.  I  am  going  to  show,  by 
the  history  of  the  State,  that  such  has  not  been  the  interpretation  put  upon  that 
language. 

Mr.  Thom:  I  do  not  want  my  friend  to  understand  that  my  question  was,  in 
any  way,  intended  as  an  argument  against  his  position.  I  will  probably  reach  the 
same  conclusion  that  my  friend  does,  but  by  an  entirely  different  process. 

Mr.  Harrison:  I  will  ask  you  this  question:  If  the  Constitution  had  the  power 
to  confer  upon  us  powers  in  controvention  of  the  act  of  the  Legislature  under  which 
we  are  elected,  why  is  not  that  provision  as  to  suffrage  as  binding  upon  us  as  the 
other  provisions? 

Mr.  Thom:  I  have  very  clear  and  distinct  views  upon  that  subject  which  I  will 
undertake,  in  the  progress  of  this  debate,  to  mention,  unless  my  friend  wants  me  to 
answer  now,  for  the  purposes  of  his  argument. 

Mr.  Meredith:  I  understood  the  gentleman  to  say  that  he  would,  in  the  course 
of  his  argument,  show  that  the  language  has  been  construed  contrary  to  the  giving  of 
that  power.  ,  .  ^ 

Mr.  Harrison:  Yes. 

Mr.  Meredith:  That  constitutional  language  of  that  kind  has  been  definitely  con- 
strued otherwise. 

Mr.  Harrison:  I  am  going  to  show  that  the  words  "to  amend  and  revise"  do 
not,  under  the  history  of  the  Constitutions  of  this  State,  include  the  power  to  pro- 
claim. 

Mr.  Meredith:    Not  even  where  the  language  is  constitutional? 
Mr.  Harrison:    I  do  not  see  how  words  get  a  different  meaning  in  the  Consti- 
tution from  what  they  have  in  any  legislative  act. 

I  do  not  think  it  has  ever  been  called  into  question,  to  my  knowledge. 
The  opinion  concludes  as  to  constitutional  conventions: 

The  convention  is  not  a  co-ordinate  branch  of  the  government.  It  exercises  no 
governmental  power,  but  is  a  body  raised  by  law,  in  aid  of  the  popular  desire  to  dis- 
cuss and  propose  amendments,  which  have  no  governing  force  so  long  as  they  remain 
propositions.    While  it  acts  within  the  scope  of  its  delegated  powers,  it  is  not  amen- 


DEBATES  OF  THE  CON'STITUTIONAL  COXVEXTION"  OF  VIRGINIA.  3109 

able  for  its  acts,  but  when  it  assumes  to  legislative,  to  repeal  and  displace  existing 
institutions  before  they  are  displaced  by  the  adoption  of  its  proposition,  it  acts  with- 
out authority,  and  the  citizens  injured  thereby  are  entitled,  under  the  declaration  of 
rights,  to  an  open  course  and  to  redress  at  your  hands. 

These,  gentlemen,  are  the  words  of  a  great  lawyer  considering  almost  the  iden- 
tical questions  that  we  have  submitted  before  us  novv^.  What  a  court  has  once  said, 
may  not  a  court  say  again?  I  beg  of  you,  gentlemen,  to  consider  this  matter.  We 
are  preparing  here  for  a  fight  before  the  courts,  and  you  have  to  look  at  the  authori- 
ties that  influence  courts  and  will  have  a  controlling  influence  on  the  courts,  and  not 
at  what  we,  ourselves,  would  like  to  resolve. 

I  follow  now,  Mr.  President,  the  gentleman  from  Campbell  into  the  history  of 
the  constitutional  conventions  of  this  State.  The  case  he  has  referred  to  as  being  de- 
cided by  Judge  Wythe  I  have  not  by  me,  but  the  General  Court  in  Kamper  vs.  Hawk- 
ins passes  upon  the  validity  of  the  Constitution  of  1776.  Some  of  the  ablest  judges 
who  ever  wore  the  ermine  in  Virginia  delivered  opinions  in  this.  I  ask  you  to  allow 
me  to  read  some  extracts  from  that  opinion. 

Mind  you,  gentlemen,  this  is  a  case  that  went  to  this  court  to  test  the  question 
whether  or  not  the  Constitution  of  1776  was  a  binding  force  upon  the  people,  because 
it  had  not  been  submitted  to  their  vote. 

This  was  the  first  Constitution  that  the  people  of  the  State  of  Virginia  ever 
enacted.  It  was  enacted  amidst  the  throes  and  perils  of  war  and  revolution.  Seven- 
teen years  after  that  Constitution  had  been  in  operation  a  case  was  carried  before 
the  court  antagonizing  its  validity.    What  do  these  judges  say?    Judge  Nelson  says: 

It  is  confessedly  the  consent  of  the  people  which  gives  validity  to  a  Constitu- 
tion. May  not  they,  then,  by  a  subsequent  acquiescence  and  assent,  give  a  Constitu- 
tion, under  which  they  have  acted  for  seventeen  years,  as  much  validity,  at  least,  so 
long  as  they  acquiesce  in  it,  as  if  it  had  been  previously  expressly  authorized?  The 
people  have  received  this  as  a  Constitution.  The  magistrates  and  officers,  down  to 
a  constable  (for  even  the  mode  of  his  appointment  is  directed),  have  been  appointed 
under  it.    The  people  have  felt  its  operation  and  acquiesced. 

Therefore  it  is  valid. 
Judge  Roane  says: 

This  Constitution  is  sanctioned  by  the  consent  and  acquiescence  of  the  people 
for  seventeen  years. 

Judge  Henry  says: 

Accordingly  a  plan  of  government  was  prescribed  and  accepted  by  the  people 
which  has  been  uniformly  acquiesced  in  from  that  day  to  this  time. 

Judge  Tyler  said: 

I  know  it  has  been  the  opinion  of  some  critical  and  speculative  gentlemen  of 
considerable  merit  and  ability,  too,  that  our  form  of  government  was  not  authorized 
by  the  people,  inasmuch  as  no  instructions  were  given  by  the  people  to  the  Con- 
vention at  the  time  the  Constitution  was  established.  To  investigate  this  subject 
rightly  we  need  to  go  back  to  that  awful  period  of  our  country,  when  we  were  de- 
clared out  of  the  protection  of  the  then  mother  country,  and  take  a  retrospective 
view  of  our  situation  and  behold  the  bands  of  civil  government  cut  asunder  and  de- 
stroyed— no  social  compact,  no  system  of  protection,  and  common  defence  against  an 
invading  tyrant — in  such  a  state  of  nature,  without  friends,  allies,  or  resources — in 
such  a  case  what  was  to  be  done? 

Those  eminent  characters  to  whom  so  much  gratitude  is  and  forever  will  be  due, 
whose  names  are  enrolled  in  the  annals  of  America,  recommended  a  convention  of 
delegates  to  be  chosen  for  that  purpose;  who  were  to  meet  together  for  the  express 
design  of  completely  protecting  and  defending  the  rights,  both  civil  and  religious, 
of  our  common  country.    The  delegates  were  so  elected  and  convened.    What  power 


3110 


DEBATES  OF  THE  CONSTITUTIOJ^AL  CONVENTION"  OF  VIEGIAtja. 


had  the  people,  therefore,  that  was  not  confided  to  their  representatives.  All  their 
rights,  all  their  power,  all  their  happiness,  all  their  hopes,  and  prospects  of  success 
were  most  indubitably  entrusted  to  their  care.  They  were  not  betrayed.  The  people 
did  not  say  to  their  representatives  that  so  far  ye  shall  go  and  no  further.  Happy 
indeed  for  this  country,  that  no  such  restraint  was  laid  upon  them.  In  order  to  pro- 
tect and  defend  the  com^mon  cause  then  a  system  of  social  duties  was  formed.  With- 
out this  what  obedience  could  have  been  expected,  how  could  a  regular  defence  have 
been  made?  A  great  variety  of  departments  were  established  and  those  who  were 
to  execute  them  had  been  made  responsible  to  some  regular  power,  and  all  this  was: 
Has  not  this  policy  been  sufficiently  ratified  by  time  and  action?  And  if  it  w;ere 
possible  to  doubt  under  their  circumstances,  has  it  not  been  sealed  with  the  blood 
of  this  wide-extended  empire?  And  shall  its  validity  be  now  questioned?  For  what 
purpose?    To  revert  back  to  our  former  insignificance?    It  cannot  be. 

Judge  Tucker,  the  last  one  to  deliver  his  opinion  in  this,  the  most  celebrated 
case  in  the  State  of  Virginia,  bases  his  opinion  upon  the  ground  that,  necessarily, 
at  that  time,  it  was  impossible  to  confer  a,ny  limited  power  upon  the  delegates  to- 
such  a  Convention.  Our  civil  government  had  been  overturned.  Could  they  stand 
there  and  say,  when  they  were  in  a  state  of  war,  that  they  had  no  further  powers? 
He  says  it  was  a  matter  incident  to  the  overturning  of  the  former  government  that 
they  should  have  the  power  to  establish  a  new  one.  This,  like  all  of  Judge  Tucker's 
opinions,  is  most  clearly  and  forcibly  expressed.    He  says: 

It  will  be  remembered  by  all  of  those  who  are  conversant  with  the  history  of 
the  rise  and  progress  of  the  late  glorious  revolution,  that  the  measures  which  led  to 
the  final  consummation  of  that  important  event,  although  they  originated  in  most 
instances  with  the  legal  and  constitutional  assemblies  of  the  different  colonies, 
made  but  a  small  progress  in  that  channel,  particularly  in  this  State.  The  dissolu- 
tion of  the  constitutional  assemblies,  by  the  Governors  appointed  by  the  Crown, 
obliged  the  people  to  resort  to  other  methods  of  deliberating  for  the  common  good. 
Hence  the  first  introduction  of  conventions:  Bodies  neither  authorized  by  law,  nor 
known  to  the  then  constitutional  government;  bodies  on  the  contrary,  which  the 
constitutional  officers  of  the  then  existing  governments,  considered  as  illegal  and 
treated  as  such.  Nevertheless  they  met,  deliberated,  and  resolved  for  the  common 
good.  They  were  the  people,  assembled  by  their  deputies;  not  a  legal  or  constitu- 
tional assembly,  or  part  of  the'  government  as  then  organized.  Hence  they  were  not 
nor  could  be  deemed  the  ordinary  legislature,  that  body  being  composed  of  the  Gov- 
ernor, Council,  and  Burgesses,  who  sat  in  several  distinct  chambers  and  characters; 
while  the  other  was  composed  of  a  single  body,  having  neither  character  of  governor, 
council-  or  legitimate  representative  among  them.  They  were  in  effect  the  people 
themselves,  assembled  by  their  delearates,  to  whom  the  care  of  the  Commonv/ealth 
was  especially,  as  well  as  unboundedly,  confided.  The  power  of  convening  the  legal 
assemblies,  or  the  ordinary  constitutional  legislatures,  resided  solely  in  the  executive. 
They  could  neither  be  chosen  without  Vv^rits  issued  by  its  authority,  or  assemble  when 
chosen,  but  under  the  same  authority. 

The  Convention  then  was  not  the  ordinary  legislature  of  Virginia.  It  was  a 
body  of  the  people  impelled  to  assem.ble  from  a  sense  of  common  danger,  consult- 
ing for  the  common  good,  and  acting  in  all  things  for  the  common  safety.  It  could 
not  be  the  legitimate  legislature  under  the  then  established  government,  since  that 
body  could  only  be  chosen  under  the  commission  and  assembled  under  the  authority 
of  the  crown  of  Great  Britain. 

Although  the  exercise  of  the  authority  of  the  exocutive  government  und'^r  the 
crown  of  Great  Britain  ceased  altogether  with  the  dissolution  of  that  assembly  in 
June,  1775,  yet  a  constitutional  dependence  on  the  British  government  was  never  de- 
nied, until  the  succeeding  May.  or  dissolved  until  the  moment  of  adopting  the  present 
Constitution  or  form  of  government,  an  event  which  took  effect  by  the  unanimous 
voice  of  the  Convention,  elected  after  the  final  dissolution  of  the  General  Assembly, 
as  above  mentioned,  and  assembled  at  Williamsburg,  on  the  29th  of  June,  1776,  after 
six  weeks  deliberation  thereon,  and  eight  days  before  the  Declaration  of  Independence 
by  the  Congress  of  the  United  States.  This  was  not  then  the  act  of  the  ordinary 
legislature  that  dissolved  the  bonds  of  union  between  us.  It  was  the  voice  of  the 
people  themselves,  proclaiming  to  the  world  their  resolution  to  be  free;  to  be  gov- 
erned only  by  their  own  laws,  to  institute  such  a  government  as,  in  their  own  opin- 
ion, was  most  likely  to  produce  peace,  happiness,  and  safety  to  the  individual,  as 
well  as  to  the  community.    It  seems  to  me  an  observation  of  great  importance,  that 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


3111 


the  Declaration  of  Independence  by  this  State  first  made  m  that  instrument 

which  establishes  our  Constitution.  The  Declaration  .of  Independence  took  eftect,  and 
the  convention  proceeded  no  farther;  the  government,  as  formerly,  exercised  by  tne 
crown  of  Great  Britain,  being  thereby  totallv  dissolved,  there  would  never_  have  been 
an  ordinarv  legislature  or  anv  other  organized  body  or  authority  m  \irginia. 

Everv  man  would  have  been  utterly  absolved  from  every  social  tie.  and  remitted 
to  state  of  perfect  nature.  But  a  power  to  demolish  the  existing  fabric  of  govern- 
ment, which  no  one  will,  I  presume,  at  this  day  deny  to  that  convention  without 
authority  to  erect  a  new  one,  could  never  be  presumed.  A  new  organization  of  the 
fabric,  and  a  new  arrangement  of  the  powers  of  government,  instantly  take  place  to 
prevent  those  evils  whVh  the  absence  of  government  will  infallibly  produce  in  any 
case;  but  more  especially  under  circumstances  so  awful  and  prospects  so  threatening 
as  those  which  surrounded  the  people  of  America  at  that  alarming  period.  It  would 
therefore  have  been  an  absurdity  in  the  extreme,  in  the  people  of  A^irginia.  to  author- 
ize the  Convention  to  absolve  them  from  the  bonds  of  one  government,  without 
the  power  to  unite  them  under  any  other,  at  a  time  when  the  utmost  exertions  of 
government  were  reouired  to  preserve  both  their  liberties  and  their  lives;  but  since 
they  are  both  in  form  and  effect  only  different  clauses  of  the  same  act  and  necessary 
consequences  of  each  other,  to  question  the  validity  of  the  one  is  to  deny  the  effect 
of  the  other.  The  Declaration  of  Independence  and  the  Constitution,  as  to  the  acts  of 
the  people,  must  therefore  stand  or  fall  together. 

This,  gentlemen,  is  the  opinion  of  this  high  court  giving  the  reasons  why  the 
Constitution  of  1776  was  valid,  without  submission,  and  the  opinion  is  based  upon 
the  ground  that  the  condition-  of  the  State  was  revolutionary,  and  that  the  Constitu- 
tion had  received  the  consent  and  acquiescence  of  the  people  for  seventeen  years 
without  being  called  in  question.  What  was  the  fact  about  the  Constitution  of  1S29, 
which  was  the  next  Constitution  enacted  in  this  State? 

So  far.  gentlemen,  from  drawing  any  authority  from  that  Convention  to  pro- 
claim the  Constitution,  it  seems  to  me  that  the  voice  of  the  people  and  the  minds 
of  the  magnificent  representatives  of  the  State,  then  assembled  in  Constitutional 
Convention,  forbids  us  supposing  for  the  moment  that  they  imagined  that  they  had 
the  right  to  proclaim  a  Constitution  or  any  part  thereof.  In  1829  almost  the  identical 
questions  found  in  our  present  Constitution  were  submitted  to  the  people — shall 
there  be  a  Convention  called  to  amend  the  Constitution?  The  people  voted  aye. 
The  Constitutional  Convention,  assembled  under  that  call,  completed  their  work,  and 
did  they  proclaim  the  Constitution? 

Xo.  They  referred  their  Constitution  to  the  General  Assembly,  with  the  request 
that  they  should  pass  a  law  and  submit  it  to  the  people  who  were  authorized  to  vote 
under  its  provisions.  In  accordance  with  that  request,  and  in  obedience  to  the  statute 
of  the  General  Assembly  of  Virginia,  the  Constitution  was  submitted  to  the  people 
who  were  authorized  to  vote  under  the  new  Constitution.  But  to  amend  gives  au- 
thority to  proclaim.  Why  was  it  deemed  necessary  then  to  leave  it  to  the  General 
Assembly  to  sanction  the  submission  of  that  Constitution,  not  to  the  people  as  then 
qualified,  but  to  the  people  whom  the  Legislature  of  Virginia  and  Convention  should 
qualify  to  vote  upon  it? 

:\Ir.  Thom:  May  I  make  to  the  gentleman  a  suggestion  in  connection  with  the 
historical  facts  relating  to  the  Convention  of  1829-1830? 

Mr.   Harrison:    Yes,  sir. 

Mr.  Thom:  I  think  the  fact  is  that  there  was  an  act  of  the  General  Assembly  of 
the  State  authorizing  the  submission  to  any  electorate  that  the  Constitutional  Con- 
vention might  select. 

]\Ir.  Harrison:  But  a  subsequent  act  prescribes  the  electorate  to  which  it  should 
be  submitted. 

I^.Ir.  Thom:  I  understand  that.  I  am  only  making  this  suggestion  because  of  a 
remark  which  you  made  in  the  course  of  your  argument. 

Mr.  Harrison:  What  I  claim  is  that  the  Constitutional  Convention  of  1S29-1S80 
did  not  undertake  to  proclaim  its  work  or  to  submit  its  work,  but  referred  it  to  the 


3112  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 

Legislature,  calling  upon  them  to  pass  enabling  acts,  and  that  it  should  be  submitted 
to  the  people  under  the  terms  of  that  act,  and  should  be  submitted  to  the  people 
who  were  authorized  to  vote  under  the  new  Constitution. 

Mr.  Carter:  Do  you  contend  that  the  Legislature  could  submit  this  question  to 
a  different  electorate;  but  that  the  Convention  cannot  do  so? 

Mr.  Harrison:  Yes,  sir;  I  do.  I  will  come  to  that  presently.  I  claim  that  the 
power  of  the  General  Assembly  is  not  controlled  by  the  suffrage  clause.  How  often 
have  the  Legislature  prescribed  for  the  submission  of  different  questions  to  a  differ- 
ent electorate  under  special  acts. 

Mr.  Barbour:  I  understood  you  to  say  that  the  Legislature  itself  could  submit 
this  to  a  different  electorate. 

Mr.  Harrison:    Yes,  sir. 

Mr.  Barbour:  Do  you  also  admit  that  the  Legislature  could  proclaim  the  Constitu- 
tion, 

Mr.  Harrison:  No;  I  do  not  admit  that,  because  I  think  the  Lrgislature  has  the 
right  to  prescribe  who  are  the  electors,  and  who  have  the  right  to  vote  on  such  ques- 
tions, as  they  have  done  in  innumerable  cases  under  special  acts,  where  freeholders 
have  been  authorized  to  vote,  but  of  course  they  have  no  right  to  proclaim  it.  They 
have  no  right  to  proclaim  because  they  are  obliged  io  designate  those  who  are  au- 
thorized to  speak  for  the  whole  people.  But  it  was  not,  as  I  say,  an  act  on  the  part 
of  the  Convention.  It  was  the  concurrent  act  of  the  Constitutional  Convention  and 
the  Legislature.  The  act  of  the  Legislature  gave  the  assent  of  the  existing  govern- 
ment to  be  displaced  by  the  new.  Had  the  Constitutional  Convention  undertaken  to 
displace  the  old  government  without  its  assent  then  there  would  be  some  force  in 
the  claim  that  the  Convention  had  virtually  proclaimed  its  suffrage  plan.  The  Legis- 
lature was  essential,  as  I  said,  to  give  the  assent  of  the  existing  government.  This 
assent  was  sought  and  obtained,  and  there  was  no  attempt  on  the  part  of  the  Con- 
vention to  set  aside  by  proclamation  the  old  government  without  its  assent. 

I  believe  that  if  the  representatives  of  the  people  ratify  the  act,  and  government 
is  organized  under  the  new  Constitution,  and  all  the  powers  are  put  in  force  by  the 
representatives  of  the  people,  that  there  is  no  power  which  can  call  it  in  question 
because  it  passes  from  a  judicial  question  to  a  political  question. 

When  we  come  to  the  Constitution  of  1849,  we  find  exactly  the  same  situation. 
Under  the  act  of  1851-52,  which  was  prior  to  the  completion  of  the  work  of  the  Con- 
stitutional Convention,  there  was  no  provision  for  proclaiming  the  Constitution  in 
part  or  in  whole.  The  Constitution  did  not  confer  upon  the  Legislature  any  power. 
The  act  was  passsed  before  the  Constitution  had  been  enacted  by  the  Constitutional 
Convention.  In  that  act  it  was  prescribed  that  the  ratification  should  be  by  the  people, 
who  were  authorized  to  vote  under  the  new  Constitution,  as  well  as  those  who  were 
authorized  to  vote  un^der  the  old  Constitution.  Again  there  was  no  attempt  to  pro- 
claim the  Constitution  or  the  suffrage  clause,  but  the  old  and  new  government  joined 
hands  again.  The  existing  government  gave  its  assent  to  the  propositions  of  the 
new,  and  there  was  no  attempt  on  the  part  of  the  Convention  to  remove  the  old  order 
without  its  assent. 

You  will  observe,  gentlemen,  that  under  the  Constitution  of  1849,  the  freeholders 
had  the  right  to  vote,  upon  the  election  of  officers,  in  every  country  in  which  they 
owned  real  estate;  but  upon  the  question  of  whether  or  not  there  should  be  a  Con- 
stitutional Convention,  it  was  always  provided  that  they  should  have  but  one  vote. 
Therefore,  upon  the  question  of  submission  to  the  people  they  restricted  those  v/ho 
should  be  entitled  to  vote.  You  will  observe  that  the  words  in  these  acts  were:  "To 
amend  and  revise  the  Constitution."  Why  should  they  not  have  in  our  Constitution 
the  same  interpretation  they  had  under  those  acts?  It  is  one  of  the  rules  of  inter- 
pretation of  laws  and  statutes  that  v/here  words  have  received  a  certain  interpreta- 
tion by  custom  and  usage  they  have  thereby  been  given  a  legal  significance.  In  this 
Constitution  they  have  taken  the  very  words  that  were  in  the  previous  acts,  which 


DEBATES  OF  THE  COi^STITUTIONAL  CONVENTION  OF  VIRGINIA. 


3113 


were  followed  by  the  submission  to  the  people.  Why  is  it  that  they  do  not  retain 
in  our  Constitution  the  significance  which  the  people  gave  to  them  under  a  legis- 
lative act? 

We  are  all  familiar  with  the  interpretation  given  at  the  time  the  vote  was  taken. 
The  people  were  assured,  in  the  most  emphatic  way,  by  the  Democratic  Convention 
and  by  the  press  of  the  State,  by  the  orators-  on  the  stump,  that  the  interpretation 
of  those  words  was  that  it  should  be  submitted  to  the  people  for  ratification.  That 
is  a  significant  matter,  which  the  courts  will  take  into  consideration  when  they  come 
to  pass  upon  what  meaning  is  to  be  given  to  those  words.  Contemporary  history 
and  past  history  will  show  what  interpretation  was  placed  upon  the  words  "to  amend 
and  revise."  I  say  it  is  one  of  the  canons  of  interpretation,  that  the  meaning  given 
to  v/ords  by  contemporary  history  and  past  history,  is  associated  with  the  words,  when 
they  come  before  the  court  for  determination.  Will  the  court  blindly  close  its  eyes 
to  current  and  notorious  facts,  and  say  that  the  people  meant  in  the  vote  for  the 
call  of  a  convention  to  give  power  to  its  delegates  which  every  one  knows  that  they 
were  assured  they  M^ould  not  give? 

We  now  come  to  what  this  Pennsylvania  case  says  on  this  question: 

The  present  inquiry  is  not  how  much  power  may  be  conferred  by  law,  but  what 
power  was  conferred  on  this  convention?  A  law  must  be  passed  according  to  the 
forms  of  the  Constitution.  One  of  these  is  that  no  bill  shall  contain  "more  than  one 
subject,  which  shall  be  clearly  expressed  and  entitled."  The  title  of  the  Act 
of  June  2,  1871,  is  "an  act  to  authorize  a  popular  vote  upon  the  question  of  calling  a 
convention  to  amend  the  Constitution  of  Pennsylvania."  The  text  of  the  act  is:  That 
the  question  of  calling  a  convention  to  amend  the  Constitution  of  this  Commonwealth 
be  submitted  to  a  vote  of  the  people  at  the  general  election  to  be  held,  &c.  The  one 
subject  of  both  title  and  text  is  the  question  of  calling  a  convention.  That  question 
was  authorized  to  be  submitted  to  a  popular  vote.  In  that  election  each  elector 
expressed  his  individual  opinion  on  that  question,  and  that  alone,  by  voting  "for  a 
convention,"  or  "against  a  convention."  This  question  was  answered  in  the  affirma- 
tive by  a  majority  of  votes,  and  the  people,  answering  the  Legislature,  said:  "You 
may  call  a  convention."  This  was  all  the  vote  expressed.  Each  vote  expressing  the 
opinion  of  the  elector  on  that  question,  the  majority  Vv^as  composed  of  the  sum  total  of 
the  votes  on  that  side. 

Thus  an  analysis  of  the  act,  both  in  its  title  and  its  text,  demonstrates  that  the 
vote  was  not  a  delegation  of  power,  except  to  the  Legislature.  There  is  no  principle 
of  sound  interpretation  which  can  extend  the  voice  of  the  elector  or  the  sum  total  of 
those  voices,  beyond  the  question  each  was  called  to  answer.  The  result  of  that  vote, 
therefore,  was  that  the  Legislature  might  call  a  Convention.  It  was  not  in  itself  a  call, 
nor  did  it  declare  when,  how,  or  on  what  terms  the  call  should  be  made.  That,  the 
very  answer  to  the  question  proposed  to  the  electors,  necessarily  left  to  those  who  asked 
their  judgment  on  the  propriety  of  making  the  call. 

It  was  not  even  a  mandate,  further  than  the  moral  force  contained  in  an  expressed 
desire  of  the  people.  It  is  very  evident,  had  the  matter  dropped  there,  and  the  Legis- 
lature had  made  no  call,  no  convention  and  no  terms  would  ever  have  existed.  Not  a 
line,  nor  a  word,  nor  a  sj^llable  in  this  act  expressed  an  intent  of  the  people  to  make 
the  call  themselves,  or  on  what  terms  it  shall  be  made,  or  what  power  should  be  con- 
ferred. Did  the  people  by  this  act,  without  an  expressed  intent,  and  by  mere  inference 
intend  to  abdicate  all  their  own  power,  their  rights,  their  interests,  and  their  duty  to 
each  other  in  favor  of  a  body  of  mere  agents,  and  to  confer  upon  them,  by  a  blank 
warrant,  the  absolute  power  to  dictate  their  institutions,  and  to  determine  finally 
upon  all  their  most  cherished  interests?  If  the  argument  be  admitted  for  an  in- 
stant that  because  nothing  v/as  said  in  this  law  on  the  subject  of  delegation,  there- 
fore, greater  powers  were  conferred  than  were  granted  in  the  subsequent  act  of 
1872,  then  all  power  belonging  to  the  people  passed,  and  they  did  grant  it  by  the 
enormous  power  stated.  Then,  by  a  covert  intent,  hidden  in  the  folds  of  this  act, 
the  people  delegated  power  to  repeal  all  laws,  abolish  all  institutions,  and  drive 
from  'place  the  Legislature,  the  Governor,  the  judges,  and  every  officer  of  the  Com- 
monwealth, without  submitting  the  work  of  the  delegates  to  the  ratification  of  the 
people. 

This  case  holds  that  the  words  "to  amend"  confer  no  power  to  proclaim,  which 
is  the  very  question  we  now  have  before  us. 
196— Const.  Deb. 


3114  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

It  seems  to  me  that,  when  we  look  at  this  Constitution  itself,  it  carries  on  its 
face  the  refutation  of  any  claim  as  to  the  power  to  proclaim  it.  We  say  to  men  who 
hold  their  commissions  from  the  people,  "Your  commissions  are  void;  step  down 
and  out."  We  say  to  the  people:  "We  will  name  the  legislators  for  two  years  to 
come,  by  extending  their  terms."  We  levy  heavy  taxes  upon  important  interests  in 
this  State,  without  representation  and  without  a  hearing  in  this  body.  We  exercise 
all  of  these  powers  under  an  act,  v/hich,  in  express  terms  say  to  us:  J'You  shall  not 
do  it."  Now,  sir,  if  that  act  is  void  in  part  why  is  it  not  void  altogether?  If  that 
provision  is  void  which  says  to  us,  "You  shall  submit  your  work  to  the  people";  why 
is  it  not  void  in  toto?  What  right  have,  we  to  be  here,  if  the  Legislature  had  no 
power  to  pass  such  an  act?  Then  it  seems  to  me  the  whole  proceeding  here  is  void; 
because  it  has  been  decided,  again  and  again,  in  this  State  that  an  act  cannot  be 
pronounced  invalid  in  part  and  valid  in  part,  except  where  the  various  provisions 
of  the  act  are  so  separable  that  they  can  stand  alone;  and  how  can  an  act  which  pre- 
scribes the  duties  and  powers  of  delegates  stand  separately  from  the  method  of  elect- 
ing them  and  the  duty  of  electing  them? 

Mr.  President,  I  had  no  idea  of  taking  up  as  much  time  as  I  have.  I  do  not  care 
to  what  electorate  the  Constitution  is  submitted,  but  I  stand  here  to  protest  against 
this  body  undertaking  to  put  upon  the  people  whom  I  represent,  a  government  to 
which  they  have  never  consented.  You  have  no  right  to  do  it.  You  are  violating 
your  solemn  pledges  when  you  do  it.  You  are  violating  the  pledges  which  the  party 
electing  you  proclaimed  and  matured.  You  are  saying  to  a  free  white  constituency: 
"We  will  ram  this  Constitution  dovm  your  throat,  whether  you  like  it  or  not."  The 
people  of  this  country  have  fought  for  this  principle.  They  have  fought  for  the  right 
to  say  what  lav«^  shall  govern  them,  and  under  what  government  they  shall  live. 

It  is  preposterous,  that  delegates  vv^ith  their  powers  limited  and  prescribed  by 
the  act  under  which  they  were  elected,  should  dare  to  say  to  the  people,  "We  will 
give  you,  not  what  you  want,  but  what  we  think  in  our  wisdom  is  for  your  good 
whether  you  like  it  or  not."  I,  sir,  protest  against  such  an  assumption  of  authority. 
Shall  the  men  who  hold  their  commissions  from  the  people  be  told  to  throw  their 
commissions  up  and  walk  out  of  their  places  when  they  have  been  elected  by  the 
people  to  perform  certain  duties?  Are  other  men  to  be  installed  in  our  legislative 
halls  when  they  have  never  been  elected?  Are  taxes  to  be  laid  without  representa- 
tion in  this  day  of  grace,  in  the  twentieth  century?  Why,  gentlemen,  it  seems  to 
me  that  the  very  proposition  is  enough  to  rouse  the  indignation  of  every  man  who 
cherishes  the  right  of  free  government.  I,  sir,  will  be  glad  to  see  the  day  come  when 
we  can  see  white  supremacy  in  this  State  of  Virginia  and  in  every  section  of  the 
State.  I  came  here  with  the  sincere  hope  that  not  only  the  Valley,  which  I,  in  part, 
represent,  but  also  that  section  of  sorrowing  Virginia  which  has  suffered  so  much 
should  be  relieved  of  its  burden  and  enjoy  the  blessing  of  good  government.  I  came 
here  with  the  hope  that  the  imperial  race,  which  conquered  this  wilderness  and 
established  an  empire  in  the  midst  of  savages,  should  control  the  destinies  of  the 
dearest  part  of  old  Virginia;  but  I  want  to  get  at  it  according  to  the  doctrines  and 
the  teaching  of  our  fathers.  I  want  no  government  that  is  not  founded  upon  the 
consent  of  the  people.  It  is  a  thing  that  will  come  home.  It  is  a  thing  that  will 
come  home  to  us  to  plague  us  and  that  will  bear  its  bitter  fruit.  This  is  not  the  only 
Constitutional  Convention  that  may  be  called  in  this  State.  There  may  come  a  time 
when  it  will  mean  serious  disaster  to  the  State  to  have  the  recognized  power  in  one 
hundred  men  to  dictate  to  the  people  what  is  best  for  them. 

I  believe  that  this  Constitution  will  be  ratified.  I  believe,  as  sincerely  as  I  be- 
lieve anything,  that  when  the  people  have  its  merits  explained  to  them  they  will 
gladly  accept  our  work,  and  they  will  say  to  us,  "Well  done,  good  and  faithful  ser- 
vant." But  as  much  as  I  would  like  to  see  this  Constitution  go  into  effect,  there  is 
one  thing  that  is  dearer  to  me  than  that,  and  that  is  that  we  shall  hold  tight  to  the 
teachings  of  our  fathers  and  see  to  it  that  no  government  is  in  existence  in  this 


DEBATES  or  THE  COXSTITUTIOXAL  CONVEXTIOX  OF  VIRGIXIA. 


3115 


country  except  by  the  consent  of  the  governed.  I  say  it  makes  no  difference  whether 
you  submit  it  to  the  general  electorate  or  to  the  abridged  electorate.  I  say  there  is 
no  power  for  us  to  submit  it  to  the  abridged  electorate  without  having  legislation 
upon  the  subject.  We  can  refer  this  matter  back  to  the  Legislature,  as  was  done 
in  1829,  with  instructions  to  submit  it.  We  have  no  power  to  ordain  here  who  shall 
be  registrars  and  who  shall  be  entitled  to  vote.  I  will  cheerfully  vote,  if  it  is  deemed 
essential  to  the  success  of  this  measure,  to  refer  the  matter  to  the  General  Assembly 
with  instructions  to  submit  it  by  law.  I  believe  that  the  Legislature  has  that  power 
and  that  it  has  been  recognized  in  this  State  in  years  gone  by.  By  pursuing  such  a 
course  we  would  not  be  establishing  a  dangerous  precedent.  But  if  we  do  the  act 
that  is  now  in  contemplation,  as  I  understand  it,  by  some  of  the  delegates  here,  we  are 
teaching  a  lesson  to  our  children  that  the  fundamental  principles  of  republican  insti- 
tutions are  a  farce  in  old  Virginia.  Are  you  going  to  proclaim  the  Constitution  be- 
cause you  fear  the  people  will  turn  it  down?  If  I  thought  that,  gentlemen,  I  would, 
for  that  very  reason,  vote  against  it,  because  I  will  never  be  a  party  to  giving  the 
people  of  this  State  a  government  they  do  not  want.  It  is  for  them  to  say;  we  should 
let  them  speak,  and  they  will  speak,  as  they  have  ever  done  in  Virginia,  in  the  inter- 
est of  truth  and  of  justice  to  the  people  of  the  State. 

One  matter  has  escaped  my  attention,  to  which  I  desire  to  refer  before  I  close 
my  remarks.  I  was  not  here  when  the  vote  was  taken  upon  the  suffrage  proposition. 
I  was  necessarily  detained  by  attendance  upon  my  court.  If  I  had  been  here  I  would 
most  cheerfully  have  voted  for  the  suffrage  clause.  I  desire  to  call  attention  in  brief 
to  what  I  would  have  said,  if  I  had  been  here,  in  connection  with  a  certain  feature  of 
this  question.  I  know  the  capitation  tax  feature  of  this  suffrage  provision  is  an  un- 
popular move,  but,  for  my  own  part,  I  do  not  believe  that  any  man  in  Virginia  who 
is  unwilling  to  contribute  one  dollar  and  a  half  to  the  maintenance  of  public  schools 
ought  to  have  a  voice  in  the  government.  It  is  little  enough  to  show  his  interest  in 
popular  government  th?-t  he  should  be  required  to  sustain  the  public  schools  to  that 
extent. 

In  regard  to  the  educational  qualifications,  vfhich  applies  simply  to  new  voters,  I 
desire  to  say  that  after  thirty  years  of  public  schools  it  seems  to  me  little  enough 
to  require  that  a  man  should  have  sufficient  education  to  prepare  his  own  ballot. 
That  qualification,  I  understand,  is  made  to  apply  without  distinction  of  race,  color 
or  previous  condition  of  servitude.  It  will  probably  hurt  as  many  white  men  as  it 
will  negroes.  Everyone  is  required  to  measure  up  to  the  standard,  that  they  shall  pay 
$1.50  to  maintain  the  public  schools  which  educated  them;  and  that  voters  register- 
ing after  January  1,  1904,  shall  have  taken  advantage  of  that  education  to  the  extent 
of  being  able  to  prepare  their  own  ballot. 

I  know  that  in  regard  to  the  present  electorate  certain  discriminations  have  been 
made.  But  I  desire  to  call  attention  to  the  fact  that  such  discriminations  have  been 
recognized  and  recommended  by  the  greatest  political  friends  the  negroes  have  ever 
had.  Here  is  a  letter  written  to  the  Convention  called  by  the  Provisional  Governor 
of  the  State  of  Mississippi: 

If  you  could  extend  the  elective  franchise  to  all  persons  of  color  who  can  read  the 
Constitution  of  the  United  States  in  English,  and  write  their  names,  and  to  all  persons 
of  color  who  own  real  estate  valued  at  not  less  than  $250  and  pay  taxes  thereon,  you 
would  completely  disarm  the  adversary,  and  set  an  example  the  other  States  will  fol- 
low. 

That  is  the  recommendation  made  by  President  Andrew  Johnson,  in  which  he 
recognizes  that  the  educational  and  property  qualifications  should  be  the  test  for 
the  negro  voter. 

Here  is  another  letter  written  to  Louisiana: 

I  congratulate  you  on  having  fixed  your  name  in  history  as  the  first  free  State 


3116  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Governor  in  Louisiana.  Now  you  are  about  to  have  a  convention,  which  among  other 
things,  will  define  the  elective  franchise,  I  barely  suggest,  for  your  private  considera- 
tion, whether  some  of  the  colored  people  may  not  be  let  in — as,  for  instance,  the  very 
intelligent,  and  especially  those  who  fought  gallantly  in  our  ranks. 

In  these  two  letters  we  have  the  property  qualification,  the  educational  test,  the 
understanding  clause,  and  the  military  requisition  as  a  discrimination  against  the 
negro. 

This  letter  was  written  by  Abraham  Lincoln.  So  that  so  far  as  the  present 
electorate  is  concerned,  we  are  simply  following  the  suggestions  which  have  been 
made  by  two  of  the  greatest  abolitionists  in  this  country. 

•  On  motion  of  Mr.  Barbour,  the  Convention  adjourned  until  to-morrow,  Saturday, 
May  24,  1902,  at  10  o'clock  A.  M. 


SATURDAY,   May  24,  1902. 

The  Convention  met  at  10  o'clock  A.  M.,  Mr.  Barbour  in  the  chair. 
Prayer  by  Rabbi  E.  N.  Calisch,  of  Beth  Ahaba  Congregation,  Richmond. 
Mr.  Blair:    Mr.  President  and  Gentlemen  of  the  Convention: 

I  ask  your  attention  and  indulgence  to-day  while  I  endeavor  to  present  to  you 
my  views  on  this  most  important  question,  before  us  now  for  our  consideration. 

I  have  listened  to  •  the  eloquence  and  argument  of  the  distinguished  gentlemen 
who  have  spoken  on  the  subject,  and  it  is  with  hesitation  that  I  venture  to  express 
myself  at  all  in  this  connection.  But,  Mr.  President,  when  I  see  the  dearest  rights 
of  the  people  of  this  old  Commonwealth  at  stake,  I  feel  that  I  would  be  recreant  to 
the  trust  placed  in  me  by  the  constituency  I  have  the  honor  to  represent  in  this 
body  should  I  passively  submit  without  raising  my  voice  in  protest.  We  have  reached 
the  finale  of  a  great  political  drama,  the  importance  of  which,  few  of  us  are  able 
to  realize.  We  have  finished  an  epoch  in  Virginia's  history  and  with  the  closing  of 
this  Constitutional  Convention  we  will  inaugurate  a  new  regime  in  her  affairs,  which, 
to  say  the  least,  will  be  speculative  and  problematical.  The  gravity  of  the  situa- 
tion should,  therefore,  justify  care  and  patience  on  the  part  of  the  members  of  this 
body  in  their  final  consideration  of  this,  the  culminating  feature  of  our  great  under- 
taking. 

Consoling  myself  with  the  maxim  that  "Thrice  is  he  armed  that  hath  his  quar- 
rel just,"  I  have  determined  to  submit  to  you  my  views  on  this  question  with  a  col- 
lection of  authorities  to  substantiate  my  position. 

But  in  the  inception  of  my  remarks,  I  wish  it  plainly  understood  that  I  have 
been,  am  now  and  ever  shall  be,  in  favor  of  the  submission  of  constitutional  amend- 
ment or  revision  to  the  people  for  their  ratification  or  rejection. 

We  have,  after  many  weary  months  of  labor,  put  in  proper  form  the  revision  of  our 
organic  law  and  now  v/e  are  called  upon  to  decide  "shall  v/e  promulgate  the  result  of 
our  labors  or  shall  we  allow  the  people  to  pass  upon  it?  "  In  my  opinion,  every  rule  of 
law,  every  rule  of  justice,  and  every  rule  of  honor,  demands  that  we  consult  the  will  of 
the  people.  They  voted  for  the  calling  of  the  Convention  with  that  idea  uppermost  in 
their  minds;  under  the  same  impression,  they  elected  delegates  to  the  Convention,  and 
now  they  expect  that  impression  to  be  verified.  They  were  assured  of  it  by  the  pledge  of 
the  political  party  that  is  responsible  for  its  calling,  that  made  the  question  of  that  call- 
ing a  party  issue,  and  announced,  through  its  campaign  speakers,  that  the  people  should 
pass  final  judgment  on  the  work  if  they  would  only  agree  to  allow  the  Convention 
to  be  called,  and  the  Convention  was  convoked  and  convened  on  the  express  under- 
standing that  the  people  were  to  pass  finally  upon  its  result.  The  gentleman  from 
Lynchburg,  in  his  speech  in  the  early  part  of  the  session,  on  the  subject,  which  so 


DEBATES  OF  THE  CONSTITUTIONAL  CONVEq,-;TION  OF  VIRGINIA.  3117 

delighted  the  friends  of  proclamation,  undertook  to  snow  that  his  party  had  never 
given  any  assurance  to  the  people  that  the  new  instrument,  when  framed,  v/ould  be 
submitted  to  them  and  that  his  party's  platform  did  not  contain  any  such  promise 
or  pledge.  I  quote  the  language  of  the  Norfolk  Convention  and  leave  you  to  judge  for 
yourselves.  Listen: 

Hesolved,  That  it  is  the  sense  of  this  Convention  that  in  framing  a  new  constitu- 
tion, no  effort  should  be  made  to  disfranchise  any  citizen  of  Virginia  who  had  a  right 
to  vote  prior  to  1861,  nor  the  descendants  of  any  such  person,  and  that  it  is  the  sense 
of  this  Convention  that  when  such  constitution  shall  have  been  framed  it  shall  be  sub- 
mitted to  a  vote  of  the  people  for  ratification  or  rejection. 

As  to  whether  the  first  pledge  has  been  kept  or  not,  I  will  not  undertake  to  dis- 
cuss. As  to  the  second  pledge,  the  gentleman  undertakes  to  show  that  it  was  of  no 
effect,  and  had  no  binding  force  on  that  convention.  Indeed,  he  invades  the  realms 
of  logic  and  etymology  to  show  that  the  word  "sense"  does  not  create  a  pledge  as 
used  in  the  second  resolution,  but  that  it  simply  means  the  "opinion"  or  "view"  of  that 
body  and  does  not  commit  them  to  such  a  policy.  I  confess  that  my  mind  is  entirely 
too  obtuse  to  grasp  such  reasoning.  The  gentleman  is  certainly  clever  with  his  logic, 
but  when  he  tries  to  change  the  word  "sense"  from  its  accepted  meaning,  as  used 
by  the  Norfolk  Convention,  into  something  else,  he  evidently  assumes  that  the  people 
of  Virginia  possess  very  little  of  whatever  the  word  does  mean.  But  I  do  not  pro- 
pose to  split  airs  with  the  gentleman  as  to  what  constitutes  a  pledge  or  promise  in 
the  platform  of  his  political  party. 

The  platform  of  the  Democratic  party  has  been  likened  to  the  platform  of  a  rail- 
road car — it  is  made  for  the  purpose  of  getting  aboard  but  not  to  stand  on. 

But  I  must  notice  another  assertion  in  the  gentleman's  speech.  He  attempts  to 
justify  a  proclamation,  or  rather  a  submission  of  the  new  Constitution  to  an  abridged 
electorate  (they  amount  to  the  same  thing),  by  showing  that  there  was  a  great  popu- 
lar demand  for  a  Constitutional  Convention'  throughout  the  State;  that  the  existing 
Constitution  was  so  odious  that  the  people  pined  and  sighed  for  a  change  from  the 
old  to  new  conditions,  and  like  Rachael  mourning  for  her  children,  refused  to  be 
comforted.  Here  is  what  he  says:  "The  demand  for  reformation  came  from  the 
white  people  of  Virginia.'^  Is  this  a  fact  Mr.  President?  Let  us  see.  The  great 
white  section  of  Virginia  did  not  want  and  did  not  vote  for  a  Constitutional  Conven- 
tion and  they  emphasized  their  disapproval  of  such  a  course  by  their  ballots  at  the 
election  to  decide  whether  such  Convention  should  be  called  or  not.  One  county  in 
my  section,  composed  almost  entirely  of  white  voters,  gave  nearly  one  thousand  ma- 
jority against  calling  such  convention,  although,  politically  speaking,  this  county  is 
regarded  as  being  Democratic.  I  refer  to  the  county  of  Carroll.  Then,  where  did 
the  demand  for  the  Convention  and  the  voters  to  call  it  come  from?  I  regret  to  be 
put  to  the  necessity  of  saying  it,  but  we  want  the  true  state  of  facts.  The  great 
popular  demand  referred  to  above  came  by  manipulating  the  negro  vote  in  Eastern 
Virginia,  at  the  election  held  for  the  purpose,  thereby  making  the  negro  vote  to  call 
a  Constitutional  Convention,  the  avowed  object  of  which  was  to  deprive  him  of  his 
right  of  suffrage.  The  election  returns  show  that  a  majority  of  the  white  counties 
were  not  in  favor  of  the  Convention  at  all. 

Let  us  look  at  some  of  the  facts  in  connection  with  that  election.  The  returns 
show  that  77,000  votes  were  cast  in  favor  of  the  Convention,  and  that  60,000  votes 
were  cast  against  it,  making  a  total  of  137,000  votes.  In  Virginia  we  have,  approxi- 
mately, 447,000  voters.  Deduct  137,000  cast  on  the  question  as  to  holding  a  Constitu- 
tional Convention,  and  we  have  left  310,000  voters  who  did  not  go  to  the  polls  or  cast 
their  ballot  in  that  election.  How  are  you  going  to  account  for  those  voters?  Did 
those  310,000  voters  want  a  Constitutional  Convention?  I  state  these  figures  in  refu- 
tation of  the  contention  of  the  gentleman  from  Lynchburg  that  there  was  a  great 
popular  demand  on  the  part  of  the  white  people  for  a  Constitutional  Convention. 


3118 


DEBATES  OE  THE  CC^^TSTITUTIONAL  CONVEJTTION  OE  VIRGINIA. 


Let  US  look  further  at  the^<  returns.  In  Virginia  there  are  one  hundred  counties. 
Of  that  number  forty-eight  voted  for  and  fifty-two  voted  against  holding  the  Con- 
stitutional Convention. 

There  are  thirty-five  counties  in  which  there  are  a  majority  of  negro  voters,  and 
sixty-five  in  which  there  are  a  majority  of  white  voters.  Of  the  sixty-five  white  coun- 
ties, thirty-five  voted  against  and  thirty  in  favor  of  holding  the  Constitutional  Con- 
vention. Of  the  black  counties  seventeen  voted  against  the  Convention  and  eighteen 
for  it;  showing  that  a  majority  of  five  of  the  white  counties  opposed  the  holding  of 
the  Convention  and  a  majority  of  one  of  the  black  counties  favored  it.  The  follow- 
ing black  counties  voted  for  the  Convention:  Cumberland,  Charlotte,  Brunswick, 
Buckingham,  Dinwiddie,  Gloucester,  Greenville,  Halifax,  James  City,  Lunenburg, 
Northampton,  Nottoway,  Prince  Edward,  Prince  George,  Southampton,  Sussex,  York, 
and  Louisa.  Those  voting  against  the  Convention  were  Amelia,  Caroline,  Charles 
City,  Essex,  Goochland,  King  and  Queen,  Lancaster,  Mecklenburg,  Middlesex,  Nanse- 
mond.  New  Kent,  Norfolk,  Powhatan,  Surry,  Warwick  and  Westmoreland.  The  ma- 
jority vote  of  these  thirty-five  counties  against  the  holding  of  the  Constitutional  Con- 
vention was  422.  These  counties  have  a  negro  population  in  excess  of  the  whites  of 
84,759,  and  a  majority  of  negro  voters  over  white  voters  of  16,951.  Yet,  in  an  elec- 
tion called  for  the  avowed  purpose  of  disfranchising  the  negro  with  the  above  men- 
tioned majority  of  16,951  voters  these  counties  only  give  422  majority  against  the 
Convention.  Let  us  take  a  few  samples.  The  county  of  Southampton  gave  a  ma- 
jority of  1,012  in  favor  of  holding  the  Convention,  yet  the  majority  of  blacks  over 
whites  in  that  county  is  4,518.  A  fine  illustration  of  political  prestidigitation.  The 
county  of  Prince  Edward,  whose  representative  is  such  an  earnest  advocate  of  procla- 
mation, gave  it  a  majority  of  64  for  the  Convention,  yet  this  county  has  an  excess 
negro  population  of  4,493.  I  wonder  if  the  gentleman  from  that  county  is  familiar 
v/ith  the  old  proverb  about  walking  into  the  well  while  looking  at  the  stars.  The 
county  of  Charlotte  has  1,847  more  negroes  than  whites,  yet  it  gave  a  majority  for 
the  Convention  of  476. 

Now,  let  us  look  at  the  white  counties.  The  counties  that  voted  in  favor  of  the 
Convention  were  Accomac,  Albemarle,  Amherst,  Appomattox,  Augusta,  Bedford,  Camp- 
bell, Chesterfield,  Clarke,  Craig,  Culpeper,  Fauquier,  Franklin,  Giles,  Greene,  Han- 
over, Henrico,  Henry,  Isle  of  Wight,  Loudoun,  Madison,  Mathews,  Nelson,  Orange, 
Prince  William,  Rappahannock,  Roanoke,  Rockingham,  Warren  and  Pittsylvania. 
These  thirty  counties  have  a  white  population  of  375,039  and  a  black  population  of 
184,139,  or  a  white  majority  of  190,900. 

The  white  counties  voting  against  holding  the  convention  were  Alleghany,  Alex- 
andria, Bath,  Bland,  Botetourt,  Buchanan,  Carroll,  Dickerson,  Elizabeth  City,  Fairfax, 
Floyd,  Fluvanna,  Frederick,  Grayson,  Highland,  King  George,  Lee,  Montgomery, 
Northampton,  Page,  Patrick,  Princess  Anne,  Pulaski,  Richmond,  Rockbridge,  Russell, 
Scott,  Shenandoah,  Smyth,  Spotsylvania,  Stafford,  Tazewell,  Washington,  Wise  and 
Wythe.  These  counties  have  a  white  population  of  416,848,  and  a  black  population 
of  83,174,  or  an  excess  of  whites  of  333,674.  Or,  in  other  words,  there  are  nearly 
three  times  as  many  white  people  in  the  thirty-five  white  counties  voting  against  the 
Constitutional  Convention,  as  there  are  in  the  thirty  counties  voting  for  the  Convention. 
Still  the  gentleman  from  Lynchburg  would  have  us  believe  that  it  was  a  great  popular 
demand  on  the  part  of  the  white  people  of  the  State  that  caused  the  Convention  to  be 
held.  The  majority  against  holding  the  Convention  in  the  sixty-five  white  counties, 
mentioned  was  1,188.  Of  the  thirty-two  counties  west  of  the  Blue  Ridge  mountains  seven 
voted  for  the  Convention,  as  follows:  Clarke,  Warren,  Rockingham,  Augusta,  Roanoke, 
Craig,  and  Giles,  and  twenty-five  voted  against  it  as  follows:  Shenandoah',  Frederick, 
Page,  Rockbridge,  Botetourt,  Floyd,  Montgomery,  Alleghany,  Bath,  Highland,  Patrick, 
Pulaski,  Carroll,  Bland,  Wythe,  Grayson,  Tazewell,  Smyth,  Buchanan,  Russell,  Wash- 
ington, Dickerson,  Wise,  Scott,  and  Lee.    The  number  of  whites  in  these  thirty-two 


DEBATES  OF  THE  CONSTITUTIOIs^AL  CONVENTION"  OE  VIRGINIA. 


3119 


counties  is  459,209,  the  number  of  blacks,  58,599,  or  an  excess  of  whites  of  400,610.  Yet 
the  majority  against  the  Constitutional  Convention  in  the  thirty-two  white  counties  was 
7,392,  showing  conclusively  that  the  great  bulk  of  the  white  people  of  Virginia  were 
opposed  to  calling  this  Convention.  The  vote  in  the  cities  caused  the  Convention  to 
carry.  From  those  premises  he  argued  that  the  white  people  will  be  satisfied  to  see 
the  Constitution  proclaimed.  The  Legislature  recognized  the  fact  that  the  people 
of  the  State  did  not  wish  a  change  in  the  organic  law  when  they  passed  the  act 
taking  the  sense  of  the  voters  on  the  question  of  v/hether  a  Convention  should  be  held 
to  revise  or  amend  the  present  Constitution.  When  you  examine  that  act  you  will 
find  that  the  method  of  voting  on  the  question,  or  rather  the  form  of  the  ballot  by 
which  the  vote  was  to  be  taken,  provided  that  the  words  "for  Convention"  should 
be  printed  on  the  ballot,  but  nothing  was  said  as  to  putting  the  words  "against  Con- 
vention" thereon.  So  that  if  a  voter  wished  to  vote  for  the  Convention  all  that  was 
necessary  for  him  to  do  was  to  deposit  the  printed  ballot  in  the  ballot-box  and  his 
vote  was  properly  cast.  But  on  the  other  hand,  should  he  desire  to  vote  against  the 
Convention,  it  was  necessary  for  him  to  be  either  able  to  read  for  himself  or  to  con- 
sult the  ticket  marker  and  have  the  words  "for  Convention"  erased  from  the  ticket 
and  substitute  the  words  "against  Convention"  thereupon.  Now,  v^^hat  could  have  been 
the  object  in  this  plainly  unjust  piece  of  legislation  except  to  deceive  the  ignorant  and 
illiterate  voter  and  to  force  through  the  measure  providing  for  such  a  Convention?  They 
must  have  known  that  the  negro  would  be  the  one  affected  by  this  unfair  proviso  as  to  the 
preparation  of  the  ballots,  and  that  it  would  result  in  a  large  number  being  counted 
for  the  Convention  by  the  ticket-markers  or  unconsciously  casting  their  ballots  there 
for  themselves. 

Mr.  Flood:  I  wish  to  correct  the  gentleman  as  to  the  statement  just  made  that 
the  ballot  as  provided  for  by  the  act  of  the  Legislature  of  1899-1900  was  unfair.  It 
was  not  unfair.  The  Legislature  was  confronted  with  this  condition  of  affairs:  If, 
under  the  Underwood  Constitution,  there  had  appeared  on  the  ballot  "for  a  Consti- 
tution" and  "against  a  Constitution,"  every  voter  who  went  to  the  polls  and  did  not  do 
the  proper  scratching  would  have  his  vote  counted  against  the  calling  of  a  Constitu- 
tional Convention,  and  that  would  have  given  an  unfair  advantage,  or  at  least 
some  advantage,  to  those  who  were  opposed  to  the  calling  of  a  Convention.  The 
Legislature,  therefore,  which  favored  the  calling  of  a  Constitutional  Convention, 
had,  under  the  Underwood  Constitution,  which  had  been  rammed  dovv'n  the  throats 
of  the  people,  either  to  give  the  advantage  to  those  who  favored  a  Constitutional 
Convention,  or  to  those  who  opposed  it.  The  Legislature  did  not  provide  for  an 
unfair  ballot,  but  simply  gave  the  advantage  to  those  who  favored  the  calling  of  a 
Constitutional  Convention. 

Mr.  Blair:  The  gentleman  ought  to  know,  because  he  was  the  author  of  the  pro- 
vision, and  ought  to  be  familiar  with  the  facts.  Three  hundred  and  ten  thousand 
voters  either  did  not  or  could  not  vote  the  ballot. 

Mr.  Flood:  The  reason  I  correct  the  gentleman  is  because  he  is  not  familiar 
with  the  facts. 

Mr.  Blair:  It,  therefore,  would  appear  that  this  Convention  was  conceived  in 
iniquity  and  brought  forth  in  sin.  If  the  friends  of  proclamation  are  so  anxious  to 
consult  the  views  of  the  people  of  the  Commonwealth  through  the  medium  of  mass- 
meetings,  why  not  submit  to  them  in  a  lav/ful  election  whether  the  Constitution  shall 
be  promulgated  or  submitted  to  the  people?  This  would  certainly  accomplish  the 
object.  Even  in  the  present  case  the  result  was  comparatively  close.  It  is  useless, 
therefore,  to  contend  that  the  white  people  of  this  Commonwealth  demanded  a  Con- 
stitutional Convention.  The  proposition  had  been  continuously  agitated  by  the  poli- 
ticians in  this  State  for  the  last  fifteen  years.  And  if  a  change  was  wanted  at  that 
time,  it  was  not  on  account  of  the  existing  law  being  defective.  We  had  lived  and 
prospered  under  it  for  the  past  thirty  years.    It  vras  due  rather  to  the  maladminis- 


3120  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

tration  of  the  dominant  poliitical  party  who  held  the  reins  of  government  at  the 
time.  It  is  not  always  the  laws  that  are  bad,  indeed  very  seldom,  but  the  manner  in 
which  they  are  enforced  and  construed,  as  a  rule,  is  responsible  for  existing  evils. 
Pope  tells  us: 

For  forms  of  government  let  fools  contest, 
Whate'er  is  best  administered  is  best. 

But,  fortunately  for  the  people,  Mr.  President,  this  question  is  not  dependent  upon 
the  integrity  of  any  political  party.  It  is  the  inherent  right  of  the  people  to  call 
conventions  or  to  otherwise  change  their  laws.  Being  the  repository  of  the  State's 
sovereignty,  they  must  be  consulted  before  they  can  be  bound.  When  conventions 
are  called  to  revise  or  amend  the  laws  of  a  State  or  nation  the  members  of  that 
convention  are  representatives  of  the  people  only  in  a  very  limited  sense.  It  is 
their  function  to  put  in  proper  shape  the  questions  of  revision  or,  amendment,  upon 
which  the  people  are  finally  to  pass. 

To  contend  that  the  Convention  itself  is  sovereign,  is  to  place  the  servant  above 
the  master,  the  agent  above  his  principal,  the  creature  above  the  creator.  To  such 
a  proposition  I  cannot,  I  will  not  consent.  The  people  have  intrusted  us  with  a 
sacred  duty,  and  I,  for  one,  will  not  knowingly  betray  that  trust.  They  were  led  to 
believe  that  they  should  pass  judgment  upon  the  work  as  it  came  from  our  hands, 
and  so  far  as  my  voice  and  my  vote  can  accomplish  it,  they  will  yet  realize  their 
expectations.  Upon  these  principles  I  stand.  With  me  any  other  hypothesis  would 
do  violence  to  my  conception  of  a  democratic  form  of  government,  a  government 
ever  solicitous  for  the  rights  and  privileges  of  its  citizens  and  always  according 
them  a  voice  in  all  questions  relating  to  the  policies  to  be  pursued  therein.  A  demo- 
crat is  supposed  to  favor  government  of  the  people,  for  the  people  and  by  the  people. 
In  fact,  the  etymology  of  the  word  itself  embodies  the  same  idea.  Derived  from  the 
Greek  demos — people — and  catos — power — the  word  democrat  has  ever  been,  from 
the  ideal  republics  of  Socrates  and  Plato  down  to  the  present,  synonymous  with 
the  right  of  the  people  to  rule.  In  a  democratic  republic  (I  use  the  word  in  its 
broadest  sense)  the  right  of  a  majority  of  the  members  of  that  republic  to  prescribe 
its  polity  and  control  its  affairs  is  its  chief  characteristic.  The  sovereignty  of  the 
people  is  the  foundation  stone  which  supports  the  entire  political  superstructure,  and 
upon  which  the  stability  thereof  depends.  Montesquieu  in  his  "Spirit  of  Laws"  dif- 
ferentiates between  a  democracy  and  an  aristocracy  as  follows: 

When  the  body  of  the  people  is  possessed  of  the  supreme  power,  it  is  called  a  demo- 
cracy; when  the  supreme  power  is  lodged  in  the  hands  of  a  part  of  the  people,  it  is 
then  called  an  aristocracy. 

God  knows  what  you  would  call  it  if  the  supreme  power  was  lodged  in  the  hands 
of  a  Constitutional  Convention.  The  great  thinkers  and  writers  on  sociology  and  the 
science  of  government,  Vattel,  Comte,  Herbert  Spencer,  Rousseau,  Hobbes,  Aristotle, 
Fortesquieu,  Grotius  and  others,  in  their  three  grand  divisions  of  government  into 
Monarchies,  Aristocracies  and  Democracies,  never  contemplated  government  by  con- 
stitutional convention.  It  remains  for  the  Virginia  Convention,  in  the  broad  glare 
of  twentieth-century  civilization,  to  evolve  a  fourth  grand  division  of  government. 
When  the  Convention  convened,  the  sentiment,  undoubtedly,  was  in  favor  of  a  sub- 
mission of  our  work  to  the  people  for  their  ratification  or  rejection.  But  a  perceptible 
change  of  feeling  has  been  gradually  going  on,  until  at  the  present  time  I  fear  I  am 
fighting  for  a  hopeless  cause. 

In  fact,  gentlemen,  when  we  look  at  the  question,  as  it  is  to  be  submitted  to  the 
members  of  this  Convention  for  their  vote,  it  is  easily  seen  that  we  will  lose,  on  the 
proposition  to  submit  to  the  people,  many  votes.  The  first  proposition  is:  "Shall 
the  people  be  allowed  to  vote  on  it?"    If  a  voter  wants  to  choose  between  that  propo- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIRGIXIA. 


3121 


sitlon  to  submit  it  to  a  restricted  electorate  or  rather  if  he  favors  submission  to  the 
whole  people  in  preference  to  proclamation,  he  will  not  have  an  opportunity  to  vote 
upon  that  proposition. 

I  would  like  to  know  who  originated  the  proposition  contained  in  the  resolutions 
which  were  adopted  on  Thursday  last.  I  have  understood  that  the  gentleman  from 
Campbell  (Mr.  Daniel)  is  its  author,  but  I  cannot  believe  it.  It  looks  like  the  hand 
of  Esau.  I  cannot  believe  he  originated  it,  and  if  he  did,  it  is  certainly  a  reflection 
upon  his  reputation  as  a  political  leader.  It  appears  that  we  confront  a  cut-and-dried 
affair.  I  may  be  in  the  position  of  counsel  arguing  a  case  to  a  jury  after  the  verdict 
has  been  determined  upon,  when  it  only  needs  the  signature  of  the  foreman  of  the 
jury  to  dispose  of  the  controversy.  But  how  do  you  account  for  this  change?  There 
is  no  more  reason  to  proclaim  the  Constitution  now  than  there  v.^as  one  year  ago. 
We  have  the  same  election  laws  and  the  same  electorate.  The  change  is  attributable, 
in  the  main,  to  two  causes — the  misdirected  zeal  of  the  press  in  the  matter  and  the 
unprecedented  and  unusual  development  of  petticoat  statesmanship,  since  this  Con- 
vention adjourned  for  the  recent  recess.  Those  gentlemen  who  are  shouting  proclama- 
tion from  behind  the  skirts  of  a  trumped-up  constituency  had  better  beware.  Their 
sins  will  surely  find  them  out.  They  remind  us  forcibly  of  the  ostrich,  that  is  said 
to  bury  its  head  in  the  sand  and  then  imagine  that  it  is  entirely  concealed  from  its 
enemies.  But  like  the  ostrich,  they  little  reckon  that  the  most  conspicuous  part  is 
still  exposed. 

What  right,  forsooth,  have  members  of  this  Convention  to  regard  the  so-called 
instructions  from  a  handful  of  people  gathered  together,  presumably  as  a  mass-meet- 
ing? It  is  a  well-known  fact  that  such  meetings  never  convey  the  will  of  the  people 
unless  the  political  leaders  so  desire.  As  a  rule,  three  or  four  men  can  mold  the 
sentiment  of  any  mass-meeting.  And  again,  on  whose  authority  were  these  meetings 
called?    Who  attended,  and  how  many. 

It  would  be  interesting  if  we  could  have  a  roll  of  some  of  these  mass-meetings 
before  us  to  see  who  were  present  to  instruct  the  representative  to  advocate  a  pro- 
clamation. In  several  instances  the  papers  stated  that  only  a  very  small  number  of 
citizens  were  present.  There  are  too  many  seasoned  politicians  in  this  body  to  be 
deceived  by  such  instructions.  It  is  more  than  probable  that  any  member  of  the  Con- 
vention could  have  secured  instructions  to  suit  himself.  All  that  was  necessary  was 
to  call  the  mass-meeting  and  invite  his  sisters  and  his  cousins  and  his  uncles  and 
his  aunts  and  he  would  have  been  properly  instructed.  If  you  will  give  me  one  week's 
time  I  can  go  back  to  my  county  and  get  instructed  to  proclaim  the  Underwood  Con- 
stitution and  then  adjourn  sine  die.  And  still  my  county  is  opposed  to  proclamation. 
No  doubt  if  I  had  felt  the  need  of  any  back-bone  tonic  I  would  have  had  no  trouble  in  se- 
curing the  necessary  medicine  in  the  shape  of  instructions.  Now,  at  regular  elections 
voters  are  compelled  to  attend  or  they  will  be  bound  thereby  and  will  not  be  heard 
to  question  the  result.  But  in  these  so-called  mass-meetings  no  one  is  required  to 
attend  and,  therefore,  such  instructions  should  have  no  more  binding  force  or  virtue 
than  the  infantile  requests  of  a  class  of  Sunday-school  children.  Hov/  gentlemen 
can  ease  their  consciences  or  take  comfort  from  such  a  source  passes  my  compre- 
hension. The  question  then  comes  back  to  our  right  to  proclaim.  Would  any  gentle- 
man vote  to  proclaim  a  Constitution  which,  in  his  opinion,  was  vicious  and  bad?  If 
not,  and  he  favors  proclaiming  the  new  instrument,  he  evidently  assumes  that  it  is 
a  good  one.  He  may  be  right.  But  certainly  that  is  a  matter  of  opinion.  His  con- 
stituents may  think  otherwise.  Then  who  should  prevail,  the  representative  or  the 
represented?  While  I,  doubtlessly,  possess  my  share  of  egotism,  I  cannot  allow  it  to 
carry  me  to  the  extent  of  pronouncing  for  the  4,000  voters  I  represent,  the  instrument 
in  question,  as  being  the  one  and  the  only  one  suited  to  their  w^ants.  I  must  leave 
that  vital  question  to  them.  Should  the  4,000  voters  differ  with  me  regarding  this 
Constitution,  then  I  would  cheerfully  acquiesce  in  their  superior  judgment  and  govern 


3122  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

myself  accordingly.  If,  as  the  gentlemen  who  favor  proclamation  contend,  the  new 
instrument  is  a  good  one,  then  more  the  reason  why  it  should  be  submitted  to  the 
people  for  their  ratification  or  rejection.  If  you  can  convince  them  that  it  is  good 
and  can  demonstrate  its  salient  features,  it  is  more  than  probable  that  you  will  receive 
their  encomiums  of  "Well  done,  thou  good  and  faithful  servant,  we  will  accept  the 
fruits  of  your  labor."  These  gentlemen  v/ould  have  us  believe  that  it  is  the  panacea 
that  will  relieve  all  of  the  ills  of  the  body  politic.  It,  therefore,  should  not  prove 
a  very  disagreeable  remedy.  It  occurs  to  me  that  a  refusal  to  submit  the  Constitu- 
tion to  the  people  would  appear  as  an  exhibition  of  moral  cowardice;  that  we  are 
afraid  of  the  people.  Have  we,  as  yet,  had  any  intimation  that  they  will  reject  our 
work  or  that  they  were  already  prejudiced  against  it?  Have  we  any  reason  to  doubt 
that  they  will  give  it  their  careful  consideration  and  judge  it  according  to  its  merits 
and  demerits?  Then  why  should  these  gentlemen  give  way  to  unnecessary  fears 
when  there  is  no  occasion  for  alarm?  Be  brave  and  fear  not.  "The  wicked  fieeth 
when  no  man  pursueth.  but  the  righteous  are  bold  as  a  lion."  As  the  people  are  the 
ones  affected  by  any  change  in  their  fundamental  law,  surely  they  should  be  allowed 
to  approve  or  disapprove  of  such  a  change.  No  representative  body  has  a  right  to 
say  to  the  people  whom  they  represent,  "We  will  make  the  laws  for  you,  but  you 
must  accept  them,  good  or  bad."  "The  blessing  of  Judah  and  Issachar  will  never 
meet;  that  the  same  people  should  be  both  the  lion's  whelp  and  the  ass  between 
burdens." 

These  are  self-evident  truths.  Jefferson  recognized  them  v/Iien  he  penned  the  im- 
mortal Declaration  of  Independence,  that  great  national  manifesto  of  human  liberty. 
Mason  recognized  them  when  he  framed  his  famous  Bill  of  Rights.  The  writers  in 
the  Federalist  never  lost  sight  of  them  when  they  made  their  powerful  appeals  to 
the  people  to  accept  the  Constitution  intended  for  the  United  States  as  a  whole  and 
which  had  more  to  do  with  their  final  acceptance  than  any  other  influence.  We  find 
in  the  Bill  of  Rights,  section  4  of  the  present  and  section  2  of  the  new  Constitution, 
the  following  language:  "That  all  power  is  vested  in  and  consequently  derived  from 
the  people;  that  magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable 
to  them."  What  has  become  of  the  doctrines  enunciated  by  the  sage  of  Monticello. 
Of  what  virtue  is  the  Bill  of  Rights  when  a  Constitutional  Convention  proposes  to 
arrogate  to  itself  the  very  rights  that  those  instruments  intended  to  invest  absolutely 
in  the  people? 

To  the  idea  of  sovereignty  in  the  Convention,  I  am  unalterably  opposed.  I  came 
here  as  the  servant  of  my  people.  I  left  my  sovereignty  and  my  sovereigns  at  home. 
The  doctrine  of  "nos  sumus  populi"  that  seems  to  obtain  in  this  Convention  would 
find  few  sympathizers  in  the  section  of  country  from  whence  I  come.  There  are 
many  citizens  who  are  favorably  disposed  towards  the  new  Constitution,  but,  at  the 
same  time,  they  believe  the  people)  have  the  right  and  should  pass  upon  it.  The 
mere  fact  that  a  Constitution  is  a  good  one  is  not  sufficient  reason  to  authorize  its 
enunciation,  although  the  friends  of  that  proposition  seem  to  take  that  ground.  Be- 
lieving as  I  do,  in  the  inherent  right  of  the  people  to  accept  or  reject  any  law  in- 
tended for  them,  and  that  this  is  their  sole  prerogative,  I  would  not  vote  to  proclaim 
the  Ten  Commandments  or  the  Sermon  on  the  Mount.  They  claim  that  necessity 
demands  a  proclamation  and  that  we  are  accordingly  justified  in  taking  such  a  step. 
I  presume  they  do  go  on  the  theory  that  "necessity  knows  no  law."  They  certainly 
appear  to  know  very  little  constitutional  law.  When  once  a  man  has  made  up  his 
mind  to  do  wrong  how  easy  it  is  for  him,  from  false  premises,  to  reason  out  some 
degree  of  justification  for  his  act.  Gentlemen  tell  us  that  it  would  be  folly  to  submit 
the  new  Constitution  to  those  who  will  be  disfranchised  thereby;  that  such  voters 
v/ould  certainly  cast  their  ballots  against  the  adoption  of  it,  and  that  they  should 
not,  for  that  reason  be  allowed  any  voice  in  the  matter.  Av^ay  with  such  argument. 
For  the  same  reason,  when  recently  I  refused  to  vote  for  the  great  apostle  of  free 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3133 

silver,  I  should  not  have  been  allowed  to  vote  at  all  in  this  State.  It  is  the  boasted 
characteristic  of  Democratic  government  that  the  humblest  citizen  stands  on  the  same 
footing  with  the  rich  and  the  mighty,  when  viewed  from  a  political  standpoint.  He 
cannot  be  deprived  of  his  right  of  citizenship,  unless  it  be  done  by  due  process  of 
law,  that  is,  by  a  majority  of  the  citizens  who  are  qualified  voters  of  the  State  in 
which  he  holds  his  citizenship.  There  exists  a  contract  between  each  citizen  and 
the  State.  The  citizen  on  the  one  part  agrees  to  obey  the  laws,  pay  tribute  in  the 
nature  of  taxes,  when  able,  perform  military  service,  and  conduct  himself  in  a  proper 
manner.  The  State  on  the  other  hand  guarantees  him  protection  of  life,  liberty  and 
pursuit  of  happiness  and  a  voice  in  the  affairs  of  government.  The  State,  therefore, 
cannot  arbitrarily  abrogate  this  implied  contract  without  impairing  the  obligation 
thereof.  If,  however,  a  majority  of  the  citizens  of  the  State  in  lawful  election  decide 
to  abrogate  the  contract  as  to  a  portion  of  the  citizens  thereof,  then,  as  Vattel,  in  his 
Law  of  Nations,  tells  us,  there  is  nothing  left  for  the  minority  so  affected  to  do,  but 
to  abide  therebj^,  or  to  quietly  remove  from  such  a  State  or  nation  and  seek  citizen- 
ship under  mere  congenial  government.  This  idea,  of  course,  presupposes  that  they 
have  exhausted  every  resource  to  obtain  redress  at  the  hands  of  their  native  State 
and  have  failed,  and  this  last  is  the  only  course  left  for  them  to  pursue. 

If,  Mr.  President,  we  are  to  get  an  intelligent  solution  of  this  most  important 
question,  we  must  lay  aside  partisanship  and  turn  on  the  searchlight  of  reason. 
Reason  is  that  faculty  which  God  Almighty  vouchsafes  to  mankind  to  enable  him 
to  discriminate  right  from  wrong.  By  it  he  may  "instruct  the  planets  in  what  orbs 
to  run,  reform  Old  Time  and  regulate  the  Sun."  Shall  we  submit  the  Constitution, 
and  if  so,  to  whom  shall  we  submit  it?  That  is  the  issue  by  which  we  are  con- 
fronted to-day,  and  that  is  the  issue  which  we,  as  members  of  this  Convention,  will 
soon  be  called  on  to  decide.  Upon  the  wisdom  of  our  decision  may  depend  the 
stability  of  our  whole  social  system.  Let  us  look  at  the  first  part  of  the  question, 
namely,  shall  v\^e  submit  the  Constitution  to  the  people?  In  democratic  government 
congeniality  of  sentiment  in  connection  with  the  governmental  polity  is  the  bond  of 
cohesion  that  insures  the  permanency  of  the  State  or  nation.  Destroy  this  political 
homogenity  and  disintegration  is  bound  to  follow.  And  what  is  the  cause  of  this 
congeniality  of  sentiment. 

It  comes  from  the  security  that  each  citizen  feels  as  regards  his  political  rights 
and  privileges,  as  long  as  he  retains  that  citizenship;  that  he  cannot  be  deprived 
of  them  without  the  sanction  of  a  majority  of  his  fellow-citizens,  after  a  legal  ascer- 
tainment of  that  sanction,  through  the  instrumentality  of  elections,  properly  held 
and  fairly  conducted,  under  the  laws  of  the  State  or  nation  of  which  he,  for  the  time 
being,  is  a  member. 

The  characteristic  necessity  of  democratic  government,  therefore,  is  its  abso- 
lute dependence  upon  majority  rule.  De  Tocqueville,  the  illustrious  French  writer, 
when  he  visited  this  country  in  the  early  part  of  the  last  century  for  the  purpose 
of  studying  our  institutions  of  government,  was  impressed  with  the  ease  by  which 
we  governed  ourselves  through  the  will  of  the  majority,  and  in  his  admirable  treatise 
on  the  subject,  "Democracy  in  America,"  he  says: 

The  very  essence  of  democratic  government  consists  in  the  absolute  sovereignity 
of  the  majority,  for  there  is  nothing  in  democratic  States  Y%^hich  is  capable  of  resisting 
it.  Most  of  the  American  Constitutions  have  sought  to  increase  this  natural  strength 
of  the  majority  by  artificial  means. 

Montesquieu  says: 

In  a  democracy  the  people  are  the  sovereig-n.  There  can  be  no  exercise  of  sover- 
eignty but  by  their  suffrages,  which  are  their  own  will;  the  sovereign's  will  is  the 
sovereign  himself. 


3124  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

And,  Mr.  President,  it  has  ever  been  in  democratic  government  that  sovereignty- 
is  one  of  the  non-delegatable  prerogatives  of  the  people.    Of  course,  they  can  and 
do  confer  the  exercise  of  a  certain  portion  of  it  upon  legislative  bodies,  but  sovereignty 
itself  remains  entirely  with  them.    The  Convention  held  at  Annapolis  in  1786,  ta 
frame  a  Federal  Constitution,  resulted  in  a  total  failure  on  account  of  the  members 
thereof  ignoring  this  inherent  right  of  the  people.    The  Articles  of  Confederation 
could  not  hold  together  the  States  for  a  similar  reason.   iBut  when,  in  1787,  the  Con- 
stitution Convention  met  at  Philadelphia  to  frame  a  Constitution  for  the  United  States, 
they  had  ever  uppermost  in  their  minds  the  constituent  sovereignty  of  the  people. 
The  right  to  institute  and  to  alter  government  was  ascribed  to  the  people  and  the 
ends  of  governments  were  recognized  to  be  for  the  purpose  of  securing  the  natural 
rights  of  its  citizens.    They  did  not  attempt  to  abrogate  to  themselves  the  power  to 
foist  upon  the  people  a  Constitution  of  their  own  selection,  without  first  obtaining 
their  consent   and  approval.    They  contented  themselves  with  a   simple  proposal, 
which  was  not  to  take  effect  until  it  was  sanctioned  by  the  Confederation,  the  State 
Legislatures  and  by  the  people  of  the  several  States,  in  convention  assembled  for 
the  purpose  of  examining  and  passing  upon  it.    As  a  result  of  their  wisdom  and  fore- 
sight, on  the  30th  day  of  April,  1789,  was  consummated  the  work  that  had  its  origin 
in  the  Declaration  of  Independence,  and  a  system  of  government  was  instituted,  such 
as  the  world  had  never  seen.    Like  an  impregnable  rock,  for  more  than  100  years 
it  has  withstood  the  storms  of  political  upheaval  and  the  shock  of  civil  commotion, 
and  to-day  the  land  that  it  shelters  and  protects  is  the  Mecca  for  oppressed  humanity, 
a  city  of  refuge,  a  haven  of  rest.    How,  then,  was  this  mighty  innovation  accom- 
plished?   By  acting  in  the  name  of  the  people  and  by  proceeding  with  their  full  con- 
sent and  approval.    Then,  what  course  shall  we  pursue  in  Virginia?    Shall  we  take 
the  side  of  power  or  shall  we  take  the  side  of  right?    Shall  we  commit  ourselves  to 
the  irresponsible  despotism  of  sovereignty  in  representative  bodies,  or  shall  we  cast 
our  lot  with  the  self-evident  truth  of  the  Declaration  of  Independence.    In  consider- 
ing this  subject  we  must  distinguish  between  two  kinds  of  conventions,  namely, 
Revolutionary  and  Constitutional  Conventions.    I  am  inclined  to  believe  that  sjome 
gentlemen  must  confound  the  two.    I  fear  they  have  confounded  the  rights  of  the 
citizens  in  time  of  peace  with  the  duty  of  the  citizens  in  time  of  war.    The  first,*  as 
its  name  implies,  is  not  called  by  authority  of-  law,  but  is  convened  v/hile  the  law  is  in 
abeyance  and  a  state  of  revolution  exists.   In  fact,  a  revolution  is  defined  to  be  "a  revolt 
against  the  constituted  authority,   successfully  and  completely  accomplished."  Of 
course,  under  such  conditions  a  convention  would  have  a  right  to  proclaim  its  work.  In- 
deed, that  would  be  the  only  way  by  which  it  could  become  operative.    They  are  not 
bound  by  any  rule  of  government  and  are,  therefore,  amenable  to  no  one  but  them- 
selves.   We  have  only  one  instance  of  this  kind  of  convention  in  Virginia,  that  of  1776. 
At  that  time  we  were  in  the  throes  of  the  American  Revolution  and  promulgation  was 
necessary  and  the  only  course  open  to  the  members  of  that  Convention. 

A  constitutional  convention,  on  the  other  hand,  as  contradistinguished  from  a 
revolutionary  convention,  is  one  that  is  called  together,  by  and  under  the  existing 
Constitution  of  the  State  or  nation  in  which  a  change  is  desired,  for  the  purpose  of 
effecting  some  amendment  or  revision  to  that  Constitution,  and  until  such  amend- 
ment or  revision  is  effected  the  old  instrument  remains  in  full  force  and  virtue.  The 
people  have  three  ways,  and  only  three,  by  which  they  can  secure  a  change  in  their 
organic  law.  By  the  method  prescribed  by  the  existing  Constitution.  Where  na 
method  is  provided,  then  by  authority  of  the  law-making  power,  and  lastly,  by  revolu- 
tion. In  our  own  case  the  present  Constitution  provides  h^ow  a  convention  shall  be 
called.  Section  2  of  Article  XII  provides  "at  the  general  election  to  be  held  in  the 
year  1888,  and  in  each  twentieth  year  thereafter,  and  also  at  'such  time  as  the  Gen- 
eral Assembly  may  by  law  provide,'  the  question,  'Shall  there  be  a  convention  to 
revise  the  Constitution  and  amend  the  same?'  shall  be  decided  by  the  electors  quali- 


DEBATES  OF  THE  CONSTITUTIOXAL  COJ^"VEXTION  OF  VIRGINIA, 


3125 


fied  to  vote  for  members  of  the  General  Assembly;  and  in  case  a  majority  of  the  electors 
so  qualified  voting  at  such  election  shall  decide  in  favor  of  a  convention  for  such  purpose, 
the  General  Assembly  at  its  next  session  shall  provide  by  law  for  the  election  of  dele- 
gates t;o  such  Convention:  provided,  that  no  amendment  or  revision  shall  be  made 
which  shall  deny  or  in  any  way  impair  the  right  of  suffrage,  or  any  civil  or  political 
right  as  conferred  by  this  Constitution,  except  for  causes  which  apply  to  all  persons 
and  classes  without  distinction." 

Was  this  Convention  called  under  this  section  of  the  present  Constitution?  If 
so,  we  certainly  cannot  consider  ourselves  a  revolutionary  Convention,  because  we 
were  convened  by  authority  of  law  and  that  law,  through  the  instrumentality  of  the 
Legislature  in  carrying  it  into  effect,  provides  that  we  must  submit  this  work  to  the 
people.  All  text-writers  and  nearly  all  of  the  decisions  hold  that  a  constitutional 
convention  is  absolutely  bound  by  the  provisions  of  the  act  calling  it  into  being. 

The  Constitution  provided  how  the  Legislature  sh-ould  call  the  Convention,  the 
Legislature  passed  the  act  calling  it,  and  another  act  provided  that  the  work  of  the 
Convention,  when  completed,  should  be  submitted  to  the  people  of  this  Common- 
wealth for  their  ratification  or  rejection.  Is  there  anything  revolutionary  about  that? 
On  the  contrary,  has  not  everything  been  done  according  to  law  and  order,  in  every 
instance,  up  to  the  present  time.  Then  why  depart  from  this  time-honored  course 
of  procedure,  so  universally  recognized  in  these  United  States?  Does  any  member 
question  the  principle  .of  the  inalienable  rights  of  man,  do  any  deny  that  the  people 
are  the  only  legitimate  source  of  power  or  that  all  just  powers  of  government  are 
derived  from  the  consent  of  the  governed?  Would  any  member  attempt  to  distort 
this  Convention,  assembled  in  pursuance  of  well-established  rules  of  government  and 
adjudicated  principles  of  law,  into  one  of  a  revolutionary  nature,  dependent  upon 
nothing  except  the  honesty  of  the  members  who  compose  it;  amenable  to  no  one, 
recognizing  no  authority  except  the  dictates  of  their  own  consciences? 

Surely  such  a  proposition  will  not  admit  of  serious  argument.  No,  Mr.  Presi- 
dent and  gentlemen,  we  are  not  a  revolutionary  body.  Peace,  like  a  white-winged 
messenger,  hovers  over  us,  and  happiness  and  contentment  reign  supreme.  We  hear 
it  in  the  busy  hum  of  industry  and  improvement;  we  see  it  amid  scenes  of  pastoral 
elegance  where  the  shepherd  hums  to  his  fair  one  liberty's  beautiful  song.  In  every 
Incident  of  life  the  soothing  rhj^thm  of  peace  delights  the  listening  ear.  Then  how 
can  we  promulgate  this  Constitution  without  trampling  upon  the  imprescriptible 
rights  of  man  and  disregarding  the  transcendent  sovereignty  of  the  people?  And 
where,  forsooth,  shall  we  seek  our  vindication  for  such  a  course  and  how  can  we 
justify  ourselves  at  the  day  of  reckoning? 

I  suppose  the  "instructed  gentlemen,"  with  affected  innocence,  like  Macbeth,  will 
say,  "Thou  canst  not  say  I  did  it;  never  shake  thy  gory  locks  at  me."  But  to  no 
purpose.  I  confess  that  I  am  pledged  to  a  submission  of  our  v/ork  to  the  people. 
When  I  offered  myself  as  a  candidate  for  this  Convention  I  promised  the  people  of 
my  county  that,  if  elected,  I  v/ould  favor  such  a  submission  to  them.  I  quote  from  a 
printed  circular  that  I  issued  in  connection  with  that  candidacy: 

The  Constitutional  Convention  will  be  the  representatives  of  the  people  only  in  a 
very  qualified  sense,  and  for  the  specific  purpose  and  with  the  restricted  authority  to 
put  in  proper  form  the  questions  of  amendment  or  revision,  upon  which  the  people  are 
to  pass,  but  the  fundam.ental  law  of  the  State  must  invariably  be  enacted  by  the  peo- 
ple themselves.  I  should,  therefore,  bitterly  oppose  any  attempt  to  foist  a  Constitution 
upon  the  citizens  of  this  Commonwealth  without  an  actual  and  fair  ascertainment  of 
the  sentiment  of  the  majority  of  the  voters,  qualified  as  such  by  the  present  Consti- 
tution. 

Naturally,  then  I  can  take  no  other  position  without  violating  this  sacred  pledge 
made  by  me  to  my  people  and  acted  upon  by  them. 

But  outside  of  any  such  promises  I  believe  that  it  was  the  only  position,  consistent 


3126  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

with  law  and  equity,  that  I  could  have  taken.  Before  a  constitutional  convention 
can  claim  the  right  to  proclaim  a  new  organic  law  it  must  be  able  to  show  that  it 
is  possessed  of  sovereignty,  the  right  to  make  law.  Now,  let  us  see  what  is  sover- 
eignty. Bouvier  defines  it  as  being  "the  union  and  exercise  of  all  human  power  pos- 
sessed in  a  State;  it  is  a  combination  of  all  power;  it  is  the  power  to  do  everything 
in  a  State  without  accountability."  Abstractly,  sovereignty  resides  in  the  body  of 
the  nation  and  belongs  to  the  people.  Mr.  Tucker,  in  his  work  on  Constitutional 
Law,  defines  it  as  "the  rightful  political  power  vested  in  the  body  politic,  we  call 
sovereignty  or  supremacy  over  men  and  things."  I  mention  in  this  connection  that 
Mr.  Tucker  is  one  of  the  few  writers  on  constitutional  law  who  takes  the  position 
that  a  constitutional  convention  has  the  right  to  promulgate  its  work.  According  to 
Judge  Cooley,  sovereignty,  as  applied  to  States,  imports  the  "supreme,  absolute,  un- 
controllable power  by  which  any  State  is  governed."  Does  the  Virginia  Constitutional 
Convention  possess  such  sovereignty?  Have  we  the  supreme,  absolute,  uncontrollable 
power  to  govern  this  State?  If  s/o,  from  whence  do  we  obtain  such  power?  Have  we 
letters  of  attorney  from  the  people  to  exercise  their  sovereignty?  Have  we  any  war- 
rant to  do  so?  Did  they  clothe  us  with  the  power  to  make  their  organic  law  and  at 
the  same  time  to  put  it  in  force  without  any  further  expression  from  them  on  the  sub- 
ject?   Clearly  ive  have  no  such  right. 

Judge  Cooley,  in  discussing  this  very  point,  says: 

But  no  body  of  representatives,  unless  specially  clothed  with  power  for  that  pur- 
pose, by  the  people  when  choosing  them,  can  rightfully  take  definite  action  upon  amend- 
ments of  revisions;  they  must  submit  the  result  of  their  deliberations  to  the  people, 
who  alone  are  competent  to  exercise  the  powers  of  sovereignty  in  framing  the  funda- 
mental law,  for  ratification  or  rejection. 

I  am  aware  of  the  contention  of  the  friends  of  proclamation,  that  because  the 
people  in  calling  the  Convention  did  not  expressly  prohibit  us  from  the  exercise  of  such 
power,  that  they  thereby  clothed  us  with  it.  To  me,  such  argument  is  exceedingly  fal- 
lacious. The  idea  that  silence  gives  consent  cannot  reasonably  be  applied  to  consti- 
tutional conventions.  We  are  the  agents  or  representatives  of  the  people  for  a  par- 
ticular purpose — namely,  to  put  in  proper  shape  the  new  organic  law,  so  that  the 
people  can  intelligently  pass  upon  it.  The  law,  as  applied  to  principal  and  agent, 
makes  a  decided  difference  between  general  and  special  agents.  Where  a  third 
party  contracts  Vv^ith  a  general  agent,  if  the  principal  does  not  wish  to  be  bound,  he 
must  show  that  the  agent  did  not  possess  the  authority  to  bind  him,  but  in  case  the 
contract  is  made  with  a  special  agent,  the  third  party  must  show  that  he  possessed 
the  authority  to  bind  his  principal.  Then,  if  we  are,  as  I  contend,  special  agents  of 
the  people,  before  we  can  bind  them  under  this  organic  law,  we  must  show  that  we 
possess  the  authority  to  so  bind  them.  But  they  tell  us  that  we  have  precedents  for 
such  a  course.  They  point  to  other  conventions  that  have  proclaimed  their  work 
and  contend  that,  a  fortiori,  we  have  the  right  to  do  likewise.  Let  us  examine  these 
so-called  precedents  they  would  have  us  take  for  our  guidance  in  the  solution  of  this 
great  question.  In  passing,  however,  let  me  observe  that  it  is  one  of  the  characteris- 
tics of  man's  frailty  that  whenever  he  decides  to  deviate  from  the  path  of  rectitude 
he  begins  to  look  for  a  precedent;  to  find  some  other  fellow  who  has  committed  the 
same  sin.  A  clear  conscience  and  a  knowledge  of  duty  done  is  the  only  precedent  we 
need  in  this  case.  With  that  we  need  not  fear  to  go  back  to  the  people  and  by  them 
be  judged  accordingly.  But  let  us  look  at  their  precedents.  The  first  one  they  point 
to  is  the  Virginia  Revolutionary  Convention  of  1776,  and  they  tell  us  that  that  Con- 
vention was  called  when  there  was  no  law  under  which  it  could  be  called.  It 
convened  under  the  recommendations  of  Congress  that  where  the  Colonies  had  not 
a  sufficient  government  to  meet  the  exigencies  of  their  affairs,  that  they  meet  in  con- 
vention and  "adopt  such  government  as  shall  in  the  opinion  of  the  representatives 
of  the  people,  best  conduce  to  the  happiness  and  safety  of  their  constituents  in  par- 


DEBATES  OE  THE  COXSIITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


3127 


ticular,  and  America  in  general."  Tito  primary  object  of  this  ConTention,  Mr.  Jeffer- 
son tells  us,  was  not  to  frame  a  Constitution,  but  to  "call  forth  the  powers  of  the 
State  for  the  maintenance  of  the  opposition  to  Great  Britain.  See  Jefferson's  Notes 
on  Virginia.  It  had  not  the  authority  to  enact  a  fundamental  code,  by  any  law  or 
even  by  the  wish  of  the  people.  It  simply  acted  on  its  own  authority  and  never 
deigned  to  take  the  sense  of  the  people.  But  is  ii  not  a  little  remarkable  that  from 
that  time,  1776,  down  to  the  present,  a  period  of  one  hundred  and  twenty-six  years, 
not  one  other  instance  can  be  shown  where  a  Constitution  or  any  amendment  thereto 
has  ever  been  proclaimed  in  Virginia?  I  ignore  the  anomalous  gatherings  at  Vheel- 
iag,  W.  Va.,  under  the  name  of  Constitutional  Conventions  during  the  period  from 
1S61  to  1864.  Besides,  they  have  no  right  to  take  as  a  precedent  a  revolutionary  Con- 
vention to  justify  the  actions  of  a  Constitutional  Convention. 

Jameson,  in  his  work  on  Constituiional  Conventions,  gives  as  his  reason  for  mak- 
ing such  a  wide  distinction  between  revolutionary  and  Constitutional  Conventions  the 
following: 

If  they  are  truly  revolutionary  bodies,  they  must  be  set  down  as  such,  in  order  that 
their  action  may  not  be  drawn  into  precedent,  as  that  of  normal  Constitutional  Con- 
ventions. If,  with  reference  to  the  Colonial  establishments  founded  by  the  Crown, 
those  conventions  and  the  proceedings  of  those  conventions  were  not  revolutionary, 
then  neither  would  similar  conventions  and  proceedings,  antagonistic  to  the  now  ex- 
isting order,  be  revolutionary,  with  respect  to  that  order. 

And,  Mr.  President,  of  all  the  constitutional  conventions  held  in  the  United  States 
that  have  framed  or  revised  the  organic  law,  beginning  with  the  first  one,  that  of 
New  Hampshire,  in  1775,  down  to  the  present,  one  hundred  and  fifty-seven  in  num- 
ber, one  hundred  and  thirteen  have  submitted  the  result  of  their  labor  to  the  people 
and  forty-four  have  not.  Now,  let  us  analyze  those  fort^'-four.  Among  them  are  in- 
cluded such  as  were  held  during  the  Revolutionary  period,  extending  from  1775  down 
to  the  establishment  of  the  Federal  Constitution  in  17S9.  These  conventions  were  all 
revolutionary  and  they  cannot  be  taken  as  a  precedent  for  a  Constitutional  Conven- 
tion. During  that  period  there  were  eleven  such  conventions  held — ^namely,  Delaware, 
Georgia.  ^Maryland,  New  Jersey,  New  York,  North  Carolina,  Pennsylvania,  Virginia, 
New  Hampshire,  South  Carolina,  and  Vermont.  These  should  be  deducted  from  the 
forty-four  non-submitting  conventions,  leaving  thirty-three.  From  this  number  we 
should  subtract  the  secession  conventions  of  South  Carolina,  Alabama,  Arkansas, 
Florida,  Kentucky,  Louisiana,  Mississippi,  Missouri,  and  North  Carolina,  nine  in  all. 
These  conventions  were  clearly  of  a  revolutionary  nature,  called  to  overturn  the  ex- 
isting government,  and  they  cannot,  therefore,  be  classed  as  Constitutional  Conven- 
tions. Taking  these  nine  from  the  thirty-three  would  leave  twenty-four.  From  this 
number  we  must  take  the  four  Reconstruction  Conventions  of  Alabama,  Florida,  Mis- 
sissippi and  South  Carolina.  These  conventions  were  mostly  called  together  under  the 
President's  proclamation.  This  will  leave  twenty.  All  of  these  conventions  are  in- 
cluded in  the  forty-four  non-submitting  conventions  mentioned  above. 

Lastly,  take  away  the  Convention  held  at  "^Mieeling,  W.  Va.,  for  the  purpose  of 
forming  a  new  State,  and  we  have  left  nineteen  conventions  that  failed  to  submit 
their  work  to  the  people  for  ratification  or  rejection,  during  the  history  of  our  coun- 
try. Of  that  number  only  thirteen  framed  constitutions,  the  other  six  simply  amended 
the  existing  ones.  The  conventions  framing  constitutions  were  those  of  Kentucky  in 
1792,  Tennessee  in  1796,  Ohio  in  1802.  Louisiana  in  1811,  Indiana  in  1816,  Illinois  in 
1818,  Alabama  in  1819,  Missouri  in  1820,  Arkansas  in  1836,  Florida  in  1838,  Mississippi 
in  1890,  South  Carolina  in  1895,  and  Delaware  in  1897.  Those  conventions  that  simply 
revised  are  Georgia  in  1795,  and  again  in  1798,  Delaware  in  1792,  and  again  in  1S31, 
Kentucky  in  1799,  and  New  York  in  1801.  At  the  risk  of  prolixity  I  will  ask  a  little 
closer  examination  of  these  nineteen  conventions.  Of  the  thirteen  framing  constitu- 
tions, all  but  the  three  recent  ones  of  Mississippi,   South  Carolina,  and  Delaware, 


3128 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


were  framed  to  secure  admission  into  the  Union  as  States.  They  were  either  con- 
voked by  the  Territorial  Legislatures  or  by  direct  act  of  Congress.  Being  Territories 
at  the  time  the  conventions  met,  they  had  no  electorate  to  submit  the  constitution  to, 
and  if  they  had  created  such  electorate,  that  very  act  itself  would  have  been  equival- 
ent to  a  proclamation  as  to  that  portion  of  it.  That  then  leaves  three  revising  con- 
ventions that  have  been  called  together  in  time  of  peace  under  an  established  gov- 
ernment or  rather  constitution,  that  have  failed  to  submit  their  work  to  the  people. 
Of  these  it  is  interesting  to  note  that  the  State  of  Delaware  has  held  five  constitu- 
tional conventions,  and  has  proclaimed  all  of  them  but  one.  That  one,  the  one  of 
1853,  submitted  its  work  to  the  people,  and  they  rejected  it  by  a  large  majority.  So 
it  would  seem  that  Delaware  has  no  other  alternative.  I  addressed  a  letter  to  the 
Attorney  General  of  the  State  of  Mississippi,  asking  whether  the  members  of  the  Con- 
stitutional Convention  in  that  State  were  under  any  obligations  to  submit  the  Consti- 
tution to  the  vote  of  th^  people,  and  received  from  him  the  following  letter: 

In  reply  to  your  favor  of  the  5th  instant,  asking  whether  the  members  of  the  Con- 
stitutional Convention  of  1890  were  in  any  wise  bound  to  submit  their  work  to 
the  people,  or  whether  the  act  of  the  Legislature  convening  them  required  such  sub- 
mission, I  beg  to  say: 

The  act  providing  for  the  Convention,  chapter  35  of  the  laws  of  1890,  did  not 
require  the  submission  of  the  Constitution  to  a  vote  of  the  people  for  ratification  or 
rejection,  and  a  proposition  to  that  effect  introduced  in  the  Convention  itself  was 
voted  dov/n,  and  the  Constitution  put  in  force  by  the  Convention. 

(Signed)  MONROE  McCLURY, 

Attorney  General. 

I  also  wrote  to  the  Attorney  General  of  South  Carolina,  but  received  no  reply. 

Of  the  conventions  to  amend,  those  of  Georgia  in  1795-1798,  Delaware,  1792,  Ken- 
tucky, 1799,  were  all  properly  convened  as  constitutional  conventions,  and  they  pro- 
claimed their  work.  But  at  that  early  day  the  law  was  not  at  all  well  settled  as  at 
present.  The  New  York  Convention  of  1801  was  properly  called,  but  it  simply  framed 
five  amendments  to  the  existing  Constitution,  and  then  proclaimed  them.  The  Dela- 
ware Constitutional  Convention,  1792,  however,  was  illegitimate,  it  having  been  called 
contrary  to  law;  the  Constitution  provided  that  five  parts  in  seven  of  the  Assembly, 
and  a  like  vote  of  seven  of  the  nine  members  of  the  Legislative  Council  was  neces- 
sary to  call  a  convention  to  change  the  organic  law,  and  a  sufficient  number  were 
not  had.  See  Jameson's  Constitutional  Conventions,  sec.  225.  Of  the  nineteen  non- 
submitting  conventions  we  have  left  of  those  that  were  regularly  convened  by  orderly 
and  lawful  procedure,  three  of  the  framing  and  four  of  the  amending  conventions 
that  failed  to  submit  their  work  to  the  people.  On  the  other  hand,  one  hundred  and 
thirteen  have  submitted  their  constitution  to  them.  Even  the  much-abused  Under- 
wood Constitution  was  not  forced  on  the  people — it  was  adopted  by  a  popular  vote. 

Now,  Mr.  President,  I  ask  the  friends  of  proclamation,  if  we  are  to  govern  our- 
selves by  precedent,  how  can  v/e  do  otherwise  than  to  let  the  people  pass  upon  the 
present  work?  Nov/,  here  is  some  more  information  for  the  precedent  hunters.  Since 
the  Arkansas  Constitution  of  1836  to  the  present,  a  period  of  nearly  sixty  years,  there 
appears  to  have  been  only  three  instances  of  constitutions  put  into  effect  without 
popular  ratification.  Those  three  are  the  ones  mentioned  above — Mississippi  in  1890, 
South  Carolina  in  1895,  and  Delaware  in  1897.  The  Florida  Constitution  of  1838, 
placed  by  Jameson  among  the  unsubmitted  constitutions,  appears  by  Article  XVII, 
Section  5,  of  the  instrument  itself,  to  have  been  submitted  for  popular  ratification. 
Not  to  weary  you  with  lengthy  quotations,  to  show  that  it  is  almost  the  universal 
rule  in  the  American  States  to  submit  changes  in  the  organic  law  to  the  popular  vote, 
I  call  your  attention  to  the  following  authors,  viz.:  Jameson's  Constitutional  Conven- 
tions, Borgeaud's  Adoption  and  Amendment  of  Constitutions,  Oberholtzer's  The  Ref- 
erendum in  America,  Poore's  Charters  and  Constitutions  of  America.    All  of  these 


DEBATES  OF  THE  COisTSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


3129 


take  the  position,  to  a  greater  or  less  extent,  that  unless  the  convention  be  one  of  a 
revolutionary  nature,  that  the  constitution  framed  by  it  should  be  submitted  by  the 
framers  to  the  people  for  their  ratification  or  rejection.  Then  where,  forsooth,  are 
the  much  talked  of  precedents,  held  up  for  us  to  follow.  Surely  in  the  past  sixty 
years  they  should  be  able  to  cite  us  to  a  precedent  worthy  of  our  emulation.  But 
what  do  we  find?  Mississippi,  South  Carolina,  and  Delaware.  Would  they  have  old 
Virginia,  the  mother  of  States  and  statesmen,  to  copy  after  this  illustrious  trio? 
Should  the  grand  old  mother  go  to  these  degenerate  members  of  an  exalted  state- 
hood, to  be  taught  lessons  of  justice  and  of  right?  God  forbid.  In  this  connection 
it  is  well  to  note  that  few  conventions,  called  together  in  time  of  peace,  have  ever 
usurped  the  right  of  sovereignty  without  entailng  trouble  and  discord  upon  the  people 
they  v/ere  supposed  to  represent.  A  striking  illustration  of  this  is  the  Kansas  Con- 
stitutional Convention  of  1857,  commonly  known  as  the  Lecompton  Convention.  This 
Convention  v/as  an  attempt  on  the  part  of  the  pro-slavery  population  to  force  a  Con- 
stitution upon  the  free  State  men  without  their  consent.  As  a  matter  of  course  it 
resulted  in  a  signal  failure,  but  the  agitation  of  the  question  was  undoubtedly  the 
precursor  of  the  subsequent  four  years  of  civil  strife.  And  it  is  ever  thus.  When 
the  fundamental  law  is  ignored  dire  results  will  surely  follow.  Without  law  we  have 
anarchy  and  the  natural  concomitants  of  anarchy  are  discord,  dissension  and  disin- 
tegration. Therefore,  an  existing  lavvful  government  of  the  people  cannot  be  altered  or 
abolished,  unless  by  their  consent  lav/fully  obtained.  And  I  could  go  on  and  name  other 
instances  similar  to  the  Lecompton  convention.  In  some  conventions  constitutions  have 
been  proclaimed  by  the  framers  thereof  under  authority  from  the  people.  When  they 
were  elected  the  people  expressly  conferred  this  power  on  them  and  under  it  they 
acted.  Of  course,  this  was  perfectly  legitimate.  The  people  are  supreme  and  they 
have  just  as  much  right  to  confer  upon  their  representatives  the  right  to  proclaim 
their  work  as  they  have  to  adopt  it  when  it  is  submitted  to  them.  But  they  must 
first  clothe  the  representative  with  this  power.  It  cannot  arise  by  Implication.  The 
people  cannot  divest  themselves  of  their  inherent  right  of  sovereignty,  but  they  can 
delegate  the  exercise  of  it  to  their  representatives  whenever  they  may  see  fit.  This, 
however,  is  equivalent  to  a  ratification.  It  is  like  the  example  of  a  general  agency 
mentioned  above.  The  idea  of  sovereignty  in  a  constitutional  convention  is  repug- 
nant to  all  of  our  accepted  ideas  of  government.  Our  idea  of  government  implies 
accountability  to  the  governed.  Even  in  monarchial  governments  the  fear  of  assassi- 
nation insures  a  certain  degree  of  responsibility. 

A  despotism  is  none  the  less  such  when  dominated  by  fifty  tyrants  than  when 
limited  to  one.  And  to  contend  that  a  Constitutional  Convention  is  omnipotent  is  to 
contend  that  the  people  have  either  surrendered  or  have  been  dispossessed  of  their 
natural  rights  of  sovereignty  and  that  they  are  impotent  to  protect  themselves  against 
the  aggressions  of  their  self-constituted  rulers.  Clearly  this  cannot  be  true.  Labinius 
tells  us  that  at  Athens,  should  a  stranger  dare  venture  into  the  Council,  he  was  im- 
mediately put  to  death,  because  it  was  thought  that  he  sought  to  usurp  a  portion 
of  the  sovereign  rights  of  Athenian  citizenship.  The  doctrine  that  the  friends  of 
proclamation  will  have  to  proceed  upon  to  accomplish  their  object  is,  that  might 
makes  right.  But  this  has  long  since  been  relegated  to  oblivion.  It  obtained  with- 
primitive  man  and  exists  to-day  in  the  brute  creation,  giving  rise  to  the  law  of  the 
surviva.l  of  the  fittest,  but  since  the  organization  of  mankind  into  society  it  has  ever 
been  obsolete. 

We  find,  Mr.  President,  in  examining  the  subject  of  constitutional  development 
that  the  law  of  coherence  and  continuity  has  never  been  the  field  for  any  serious 
innovations.  A  state  may  secure  a  change  in  its  organic  law  through  the  instru- 
mentality of  revolutionary  methods,  but  it  invariably  returns  to  the  well-beaten  track 
of  constitutional  revision  by  means  of  clearly  defined  rules  of  law  and  order.  It  is 
believed  that  no  State  of  the  American  Union  fails  to  make  constitutional  provision 
197 — Const.  Deb. 


3130 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


for  the  final  action  of  the  people  upon  all  questions  of  revision  or  amendment  to  their 
fundamental  law.    Professor  Woodrow  Wilson,  in  his  work  entitled  "The  Stat,e,"  says: 

In  case  a  general  revision  of  a  State  Constitution  is  sought  to  be  effected,  the 
Legislature  is  empowered  to  propose  the  calling  of  a  popular  convention,  to  be  chosen 
specially  for  the  purpose,  the  question  whether  or  not  such  Convention  shall  be 
called  must  be  submitted  to  the  people;  if  they  vote  for  its  being  summoned,  it  is 
elected  by  the  usual  suffrage;  it  meets  and  undertakes  the  revision,  and  then  sub- 
mits the  result  of  its  labors  to  the  popular  vote,  which  may  either  accept  their  results 
or  reject  them,  and  fall  back  upon  the  old  constitutional  arrangemenit. 

Jameson  on  constitutional  conventions,  unquestionably  the  highest  authority  on 
all  matters  appertaining  to  such  conventions,  in  discussing  the  two  courses  open  to 
conventions  in  putting  their  work  into  effect,  says: 

Of  the  two  courses  indicated,  the  first  (proclamation)  is  wholly  inadmissible  in 
any  case  whatever,  that  alone  excepted  in  which  it  should  be  adopted  under  the 
express  authority  of  law.  The  reason  is,  that  it  would  make  of  the  Convention  a  sim- 
ple despot,  and  if  despotic  authority  is  desired,  it  would  be  far  better  to  have  the 
concentrated  vigor  of  an  absolute  monarch,  whose  rule  is  commonly  "tempered"  if 
not  otherwise,  "by  assassination,"  into  a  sort  of  practical  responsibility  to  the  people, 
or  the  temperate  administration  of  a  Legislature  of  two  houses,  in  which  passion  and 
ambition  would,  by  a  system  of  checks  be  rendered  least  dangerous  to  the  Common- 
wealth. The  history  of  liberty  has  shown,  that  the  most  direct  road  to  ruin  of  a 
free  State  is  to  make  a  single  popular  assembly  the  dissenser  of  its  ordinary  statute 
law.  But  to  intrust  sucli  a  body,  without  check,  with  the  enactment  of  its  fundamental 
law,  would  be  but  to  discount  the  national  life — to  antedate  their  final  overthrow, 
which  history  shows  to  be  in  store  for  all  nations. 

Rather  strong  language,  but  exceptionally  good  authority. 

Those  who  desire  to  go  further  into  detail  in  the  matter  will  find  some  admirable 
discussions  in  the  following,  in  addition  to  those  just  quoted: 

"The  Rise  of  the  Republic  of  the  United  States,"  by  Frothingham;  "History  of  the 
Origin,  Formation,  and  Adoption  of  the  Constitution  of  the  United  States,"  by  Curtis; 
"Development  of  Constitutional  Liberty  in  the  English  Colonies  in  America,"  by  Scott; 
"The  Critical  Period  of  American  History,"  by  Fiske;  Schouler's  "History  of  the 
United  States  Under  the  Constitution";  Van  Hoist's  "The  Constitutional  and  Politi- 
cal History  of  the  United  States,"  Mason's  translation;  Johnson's  History  of  Ameri- 
can Politics";  Thomas  H.  Benton's  "Thirty  Years'  Review";  "The  Theory  of  Our 
National  Existence,"  by  J.  C.  Hurd;  "The  Federalist";  Story's  Com-mentaries  on  the 
Constitution";  De  Tocqueville's  "Democracy  in  America";  "The  American  Common- 
wealth," by  James  Bryce.    Also  the  following  adjudicated  cases: 

Parkei*  vs.  Commonwealth,  6  Barr,  509;  Wells  vs.  Bain,  15  American  State  Re- 
ports, 562;  Kamper  vs.  Hawkins,  1  Virginia  Cases,  28;  Manly  vs.  State,  7  Maryland, 
135;  Brittle  vs.  People,  2  Nebraska,  198;  Luther  vs.  Borden,  7  Howard  (U.  S.)  1; 
In  re  Deckert,  2  Hughes,  183;  Schall  vs.  Bowman,  62  Illinois,  321;  State  vs.  Morgan 
City,  32  Lawyers'  Reports  Annotated,  81. 

These  citations,  Mr.  President,  might  be  indefinitely  multiplied,  for  this  principle 
is  as  true  in  the  law  as  any  physical  fact  in  the  exact  sciences.  I  must  not  overlook 
calling  your  attention  to  the  two  able  articles,  written  by  our  distinguished  young 
member  from  Augusta,  Mr.  Braxton,  in  Vol.  7  of  the  Virginia  Law  Register,  in  which 
he  proves  conclusively  to  my  mind  the  necessity  of  a  submission  to  the  people  of  the 
fruits  of  our  labor,  in  the  present  instance. 

The  argument  that  the  new  instrument  Vv^ill  meet  the  wants  of  the  people  and 
relieve  their  troubles  is  not  sufficient.  While  it  may  be  very  commendable  as  an  act 
of  political  philanthrophy,  still  the  people  have  a  right  to  determine  whether  they 
will  be  the  object  of  it  or  not.  Let  me  illustrate.  My  neighbor,  whom  I  love,  is  pros- 
trated on  a  bed  of  sickness,  where  he  languishes  unable  to  obtain  relief.  I  have  com- 
passion on  him  and  seek  a  remedy  to  effect  his  cure.  I  believe  that  I  have  discovered 
that  remedy  and  go  to  him  with  it.    Now,  if  he  agrees  to  take  my  medicine  and  by 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA.  3131 

it  is  relieved  or  cured,  then  we  are  the  subjects  for  mutual  felicitation.  I  have  gained 
his  consent  to  prescribe  for  him  and  have  effected  his  cure.  But,  on  the  other  hand, 
when  I  go  to  him  should  he  say  to  me,  "Your  good  offices  are  appreciated,  but  I  don't 
care  to  take  your  medicine,"  then  I  must  stop.  I  certainly  have  no  right  to  force  him 
to  take  it,  and  if  he  sees  fit  to  throw  away  a  remedy  that  will  relieve  his  pain  no  one 
has  the  right  to  prevent  him.  Exactly  the  same  rule  applies  to  us.  The  new  instru- 
ment may  be  the  acme  of  perfection,  yet  if  the  people  do  not  wish  it  the  same  can- 
not be  forced  upon  them  without  their  consent.  Should  you  undertake  it  in  this 
State  the  much-talked-of  "water  cure"  by  the  American  army  in  the  Philippines  will 
sink  into  insignificance.  The  above  argument  and  authorities  cited  apply  to  those 
cases  where  constitutional  conventions  are  called  together  and  nothing  is  said  as  to 
how  the  instrument  should  be  put  into  operation.  But  in  the  present  instance  we 
have  additional  reasons  for  allowing  the  people  to  pass  finally  upon  it.  The  act  of  the 
Legislature,  at  its  extra  session  of  1901,  approved  February  16,  1901,  provided,  among 
other  things,  first  in  its  title — 

An  act  to  provide  for  the  selection  of  delegates  to  the  Constitutional  Convention, 
for  the  convening  of  said  delegates,  the  organization  of  the  said  convention  and  for 
the  submitting  of  the  revised  and  amended  Constitution  to  the  people  of  the  State 
of  Virginia  for  ratification  or  rejection. 

This  act  provided  for  the  districts,  the  number  of  delegates,  their  per  diem,  method 
of  voting  and  time  for  voting  for  such  members,  mode  of  publication,  etc.  It  also 
provided  in  Section  12: 

If  said  Convention  shall  agree  upon  a  revised  and  amended  Constitution  on  or 
before  the  5th  day  of  October,  1901,  the  said  revised  and  amended  Constitution  shall 
be  submitted  to  the  qualified  voters  of  the  Commonwealth  as  a  whole,  or  by  separate 
articles  or  sections,  as  the  Convention  may  determine,  for  ratification  or  rejection, 
at  the  general  election,  to  be  held  on  the  o'th  day  of  November,  1901. 

Section  17  further  provided: 

But  if  said  Convention  shall  not  propose  a  revised  and  amended  Constitution 
on  or  before  the  5th  day  of  October,  1901.  it  shall  remain  for  the  next  General  Assem- 
bly to  enact  such  measures  as  it  may  deem  proper  for  submitting  the  said  revised 
and  amended  Constitution  to  the  people  of  this  Comjnonwealth  for  ratification  or 
rejection. 

I  am  familiar  with  the  argument  of  gentlemen  on  the  other  side  that  the  Legisla- 
ture does  not  possess  the  power  to  bind  a  Constitutional  Convention.  I  answer  that 
argument  and  say  that  in  this  case  that  the  Constitutional  Convention  has  never 
possessed  the  power  to  proclaim  the  Constitution  and  that  the  Legislature  was  simply 
defining  the  course  for  the  Convention  in  a  matter  that  said  Convention  could  not  have 
done  for  himself.  For  example,  the  Convention  could  not  provide  for  the  number  of 
members  or  the  districts  from  vv^hich  they  should  come,  because  it  did  not  then 
exist.  Nor  could  it  have  provided  for  the  time  of  convening.  It  did  not  have  the 
power  to  do  these  things.  Neither  did  it  nor  does  it  have  the  power  to  proclaim  its 
work.  Therefore,  the  Legislature  did  not  undertake  to  bind  the  Convention  by  the  Act 
of  February  16,  1901;  it  was  simply  performing  a  necessary  ministerial  function  for  the 
Convention  and  the  Convention  must  follow  these  lines  as  defined  by  the  Legislature 
and  accepted  by  the  people.  This  is  not  a  novel  question  by  any  means.  We  find  it 
ably  discussed  by  Judge  Jameson  in  his  Constitutional  Conventions,  Section  414,  as 
follows : 

As  a  practical  question,  the  right  of  a  Legislature  to  require  a  Convention  to 
submit  its  recommendations  to  a  vote  bt  the  people  has  been  several  times  discussed 
aDd  intimations  have  been  thrown  out  that  the  latter  body  might  disregard  the  re- 


3132 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


quirement,  but  no  attemiDt  lias  ever  been  made,  so  far  as  I  am  aware,  to  carry  that 
supposed  right  into  effect.  In  the  Illinois  conventions  of  1847  and  1862,  it  was  con- 
tended by  a  few  members  that  the  Convention  was,  for  the  purposes  for  which  it 
was  assembled,  sovereign,  and  that,  although  an  act  of  legislation  was  doubtless 
needful  to  bring  the  body  into  existence,  yet,  when  once  born,  its  sovereignty  at- 
tached, and  it  could  disregard  all  the  provisions  of  the  act  at  its  pleasure.  Hence 
it  was  concluded,  that  those  bodies  might  or  might  not  submit  the  result  of  their 
labors  to  the  people,  notwithstanding  the  positive  injunctions  of  the  Legislature,  as 
their  own  viev^^s  of  expediency  should  dictate.  In  reply  to  these  arguments,  I  do 
not  deem  it  necessary  to  adduce  any  considerations  other  than  those  so  often  urged 
in  preceding  pages,  to  refute  their  fundamental  principle — that  of  conventional  sov- 
ereignty. Those  arguments  seem  to  have  had  little  effect  upon  either  of  the  bodies 
to  which  they  were  addressed,  and  possibly  were  propounded  merely  to  pave  the  way 
for  certain  aberrations  in  the  mode  of  submission  to  the  people,  which  will  be  here- 
after discussed;  for  the  constitutions  framed  by  those  conventions  were  each  sub- 
mitted to  the  people  in  substantial  compliance  with  the  acts  under  which  they  were 
assembled,  except  a  few  sections,  which,  for  special  reasons,  and  contrary  to  the 
spirit,  if  not  to  the  letter,  of  those  acts,  were  withheld  from  submission,  or  submitted 
in  an  unusual  and  exceptional  manner. 

So,  Mr.  President,  we  again  come  back  to  the  question  of  sovereignty  in  the  Con- 
vention. If  we  possess  it  we  are  not  bound  by  the  act  of  the  Virginia  Legislature 
of  February  16,  1901;  if  we  do  not  possess  it,  then  most  certainly  are  we  bound.  And 
according  to  nearly  all  of  the  text-v/riters  and  most  of  the  decisions  of  the  courts,  we 
do  not  possess  the  required  sovereignty.  John  Randolph,  in  the  Virginia  Constitutional 
Convention  of  1829,  likened  the  Convention  to  "a  State  physician,  to  propose  remedies 
for  the  State's  diseases."  Of  course  it  rests  with  the  patient  whether  the  remedy  shall 
be  taken  or  not.  The  Legislature  selected  the  physicians  to  heal  the  diseases  of  the 
body  politic,  the  physicians  select  the  remedy,  but  the  patient,  that  is  the  people,  must 
decide  as  to  the  advisability  of  its  taking.  The  people  undoubtedly  had  in  mind  the 
provisions  of  this  act  when  they  voted  for  the  members  of  the  Convention.  They 
thought  they  were  to  receive  the  same  per  diem  as  members  of  the  General  Assembly; 
they  were  to  meet  on  the  12th  day  of  June  of  that  year;  that  the  districts  to  furnish 
delegates  were  to  conform  to  those  of  the  House  of  Delegates  and  lastly  that  they  were 
to  vote  on  the  result  of  the  work  of  the  Convention  when  that  body  should  complete 
its  duties. 

It  is  rather  late  in  the  day  to  say  to  them  now  that  the  Legislature  had  no  power 
to  prescribe  conditions  for  the  regulation  of  the  Convention.  It  should  have  been  said 
at  such  time  to  give  the  people  an  opportunity  to  act  with  that  understanding  before 
them. 

And  had  it  been  said  at  that  time,  the  Virginia  Constitutional  Convention  of  1901, 
instead  of  a  reality,  would  have  remained  the  same  political  ignis  fatuus  as  of  old  and 
theorizing  politicians  would  have  been  forced  to  seek  a  betterment  of  conditions  in  the 
enforcement  and  not  in  the  change  of  the  existing  organic  law. 

Mr.  President,  we  are  making  history.  Can  we  afford  to  establish  as  a  precedent 
in  this  State  the  sovereignty  of  Constitutional  Convention?  Think  of  the  consequences, 
perhaps  inimical  to  our  dearest  rights.  I  had  rather  old  Virginia  should  shine  an 
untarnished  jewel  in  liberty's  crown  than  that  she  should  blaze  in  dazzling  magnificence 
in  the  diadem  of  despotism  and  oppression.  I  had  rather  that  her  government  be 
characterized  by  its  justice  and  equality  than  that  she  should  revel  in  opulence  and 
ease.  I  had  rather  that  she  bequeath  to  posterity  a  legacy  of  freedom  and  independence 
than  a  gift  of  riches  and  power.  Remove  not  the  ancient  landmarks  thy  fathers  have 
set  up  in  the  land. 

The  next  question,  Mr.  President,  is,  "  if  Y<re  are  to  submit  the  Constitution,  to  whom 
shall  we  submit  it?"  I  do  not  propose  to  devote  much  time  to  the  discussion  of  this 
point.  That  a  Constitution  required  to  be  submitted  to  the  people  for  popular  ratifica- 
tion must  be  submitted  to  the  whole  people  is  a  proposition  so  palpable  that  a  way- 
faring man,  though  he  favors  proclamation,  need  not  err  therein.  What  is  meant  by 
the  word  people?    Bouvier  defines  it  as  follows: 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIEGIXIA. 


3133 


T\Tieii  the  term  people  is  made  use  of  in  constitutional  law  or  discussions,  those 
only  are  intended  who  have  a  share  in  the  government  through  being  clothed  with 
the   elective  franchise. 

Judge  Cooley  says: 

As  a  practical  fact  the  sovereignty  is  vested  in  those  persons  who  are  permitted 
by  the  Constitution  of  the  State  to  exercise  elective  franchise. 

Under  the  heading  of  "  To  whom  submission  to  be  made,"  the  American  and 
English  Encyclopedia  of  Law  (second  edition)  lays  down  the  rule  as  follows:  "When 
submission  to  'the  people'  is  required,  this  means  to  the  electors  only."  The  case  of 
Elair  vs.  Ridgely  (Missouri),  97  American  Decisions,  24S,  holds,  that  "the  people  for 
political  purposes  must  be  considered  synonymous  with  qualified  voters."  In  fact,  the 
authorities,  as  far  as  I  have  been  able  to  find,  are  unanimous  on  this  proposition.  And 
rightly  so.  Suppose,  for  the  sake  of  argument,  we  decided  to  submit  the  nevr  Consti- 
tution to  an  abridged  electorate,  what  is  the  result.  The  election  at  which  it  is  sub- 
mitted will  be  a  State  election,  held  under  the  authority  of  the  laws  of  the  State,  con- 
ducted under  the  election  laws  of  the  State  and  paid  for  out  of  the  State  treasury. 
Now,  then,  suppose  the  qualified  voters,  under  the  new  instrument,  who  are  allowed  to 
vote  thereupon,  should  reject  it  and  thereby  refuse  to  change  their  organic  law,  would 
we  not  have  the  strange  anomaly  of  an  instrument,  repudiated  and  rejected  by  the 
electorate  it  attempted  to  create,  and  of  no  force  or  virtue,  accomplishing  the  dis- 
franchisement of  citizens  of  this  Commonwealth  at  a  State  election  when  it  had  never 
been  in  existence  and  we  not  vrorth  the  paper  upon  which  it  was  written?  Would  not 
the  remarkable  precedent  be  established  in  Virginia  that  a  rejected  Constitution  could 
accomplish  that  which  an  accepted  instrument  was  intended  to  accomplish,  namely, 
the  elimination  of  a  certain  portion  of  the  electorate  and  the  changing  of  the  organic 
law? 

How  can  any  cue  contend  seriously  that  this  can  be  done?  The  Penns^^lvania  Con- 
stitutional Convention  of  1872  presents  an  extremely  analogous  case  to  our  own.  The 
title  of  the  act  of  June  2,  1871,  calling  the  Convention  into  existence,  is  as  follows: 
"  An  act  to  authorize  a  popular  vote  upon  the  question  of  calling  a  Convention  to  amend 
the  Constitution  of  Pennsylvania."  Subsequently  an  act  was  passed,  fixing  the  details 
connected  with  the  Convention,  on  April  11,  1872.  This  act  was  entitled  "  an  act  to 
provide  for  calling  a  Convention  to  amend  the  Constitution." 

The  text  of  the  act  is  "  that  at  the  general  election  to  be  held,  etc.,  there  shall  be 
elected  by  the  qualified  voters  of  the  Coinmonwealth  delegates  to  a  Convention  to 
revise  and  amend  the  Constitution  of  the  State."  The  act  then  provides  for  the 
"  election,  the  assembling  of  the  delegates,  their  powers  and  duties  and  the  submission 
of  the  Constitution  or  amendments  agreed  upon  to  a  vote  of  the  people  for  adoption  or 
rejection."  Exactly  the  same  thing  was  done  in  Virginia.  Yet  in  Pennsylvania,  when 
an  effort  was  made  through  legal  proceedings  to  question  the  binding  force  of  this 
second  act  of  the  Legislature  of  April  11,  1872,  Chief  Justice  Agnew,  in  deciding  the 
case,  used  the  following  language  as  a  portion  of  his  opinion: 

When  the  people  voted  under  this  law,  did  they  not  vote  for  delegates  upon  the 
express  terms  that  they  should  submit  their  work  to  the  people  for  approval?  Did 
not  every  man  who  went  to  the  polls  do  so  with  the  belief  in  his  heart  that,  by  the 
express  condition  on  which  his  vote  was  given,  the  delegates  could  not  bind  him 
without  his  subsequent  assent  to  what  the  delegates  had  done?  On  what  principle 
of  interpretation  of  human  action  can  the  servant  now  set  himself  up  against  the 
condition  of  his  master  and  say  the  condition  is  void?  Who  made  it  void?  Not 
the  electors;  they  voted  upon  it.  The  people  required  the  law,  as  the  act  of  the 
existing  government  to  which  they  had  appealed  under  the  bill  of  rights,  to  furnish 
them  legal  process  to  raise  a  Convention  for  the  revision  of  their  fundamental  com- 
pact, and  without  which  legal  process  the  act  of  no  man  could  bind  another.  This 
law,  being  unrepealed,  and  being  acted  upon  by  the  people,  became  their  own  dele- 


DEBATES  OF  THE  COJsTSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


gation  of  authority — the  chart  of  the  delegates  to  guide  and  control  them  in  the 
duties  they  were  elected  to  perform  as  servants  of  the  people.  Without  this  legis- 
Iption,  the  Convention  had  not  existed,  and  to  exist  on  terms  not  found  in  or  contrarv 
to  the  law,  is  to  seek  for  a  grant  of  powers  to  be  found  nowhere  else,  except  in  a  state 
of  revolution,  and,  therefore,  do  not  exist  in  this  peaceful  process  of  amendment. 

And  a  little  further  on  the  same  eminent  jurist  says: 

If,  then,  the  delegates  elected  by  the  people  themselves,  under  the  act  of  1872, 
have  greater  powers  than  are  contained  in  it,  when,  v/here  and  how  did  they  obtain 
them?  It  is  not  in  the  act  of  1871,  for  that,  as  we  have  shown,  decided  but  one  ques- 
tion and  conferred  but  one  power,  to-wit:  That  a  convention  might  be  called,  and 
that  the  Legislature  might  call  it.  There  is  no  other  source  to  which  this  Conven- 
tion can  appeal,  and  not  being  found  there,  it  is  found  nowhere.  See  Wells  vs.  Bain, 
15  American  Reports,  563. 

For  those  who  are  interested  in  the  legality  of  the  contemplated  proclamation  of 
this  new  organic  law  and  who  have  doubts  on  the  subject,  I  most  earnestly  commend 
the  opinion  in  the  above  litigation  for  their  careful  thought  and  consideration.  It 
certainly  covers  the  question  in  which  we  are  interested  better  than  any  other  adjudi- 
cated American  case  in  a  court  of  last  resort. 

Another  striking  case  in  point  is  to  be  found  in  75  Pennsylvania  Reports,  Woods' 
Appeal.  This  was  a  bill  filed  by  Robert  Woods  and  others  against  Matthew  S.  Quay, 
Secretary  of  the  Commonwealth,  and  others,  the  purpose  of  which  was  to  have  an 
article  of  the  new  Constitution  declared  null  and  void  because  it  had  violated  a  provi- 
sion of  the  act  of  the  Legislature  of  April  11,  1872,  prescribing  the  powers  and  limits 
of  the  convention  that  had  been  called  in  that  State,  in  that  it  refused  to  allow  all  the 
qualified  voters  to  vote  at  the  designated  election. 

The  contention  of  the  defendants  was  the  same  old  fallacy  of  sovereignty  in  the  con- 
vention and  their  right  to  abridge  the  electorate  by  proclamation.  The  court,  in 
delivering  the  opinion  and  sustaining  the  decree  of  the  lower  court,  says: 

No  argument  for  the  implied  power  of  absolute  sovereignty  in  a  convention  can 
be  drawn  from  revolutionary  times,  when  necessity  begets  a  new  government.  Gov- 
ernment thus  accepted  and  ratified  by  silent  submission  affords  no  precedents  for  the 
pov/er  of  a  convention  in  a  time  of  profound  tranquility,  and  for  a  people  living 
under  self-established,  safe  institutions.  While  conventions  are  well-known  historical 
modes  of  procedure  in  the  formation  of  constitutions,  they  prove  nothing;  for  history 
does  not  define  their  powers  or  estop  the  people  from  asserting  their  own.  There 
can  be  no  estoppel  by  precedent  against  the  fundamental  rights  of  the  people.  Limits 
must  be  set  to  power.  Libertj^  demands  absolute  security.  No  people  can  be  safe 
in  the  presence  of  a  divine  right  to  rule  or  of  self-imputed  sovereignty  in  their  ser- 
vants to  bind  them  without  ratification.  Nor  is  the  improbability  of  a  wrong  use, 
or  of  an  abuss  of  pov^^er,  a  sound  argument  in  the  light  of  our  knov/ledge.  We  have  seen 
a  public  sentiment  formed  and  an  election  carried  in  a  few  months,  and  yet  the  sub- 
ject of  excitement  was  as  short  lived  as  it  was  sudden.  Men  have  been  proscribed 
for  religion's  sake  and  for  a  foreign  birth.  Moving  like  a  whirlwind,  such  excite- 
ments have  filled  a  Legislature  v/ith  its  partisans.  In  our  day  conventions,  imputing 
sovereignty  to  themselves,  have  ordained  secessions,  dragged  States  into  rebellion 
against  the  weil-knovv^n  v/ishes  of  their  quiet  people,  and  erected  in  the  midst  of 
the  nation  alien  State  governments  and  a  Southern  Confederacy.  *  *  *  Who  can 
foretell  the  next  subject  of  agitation?  The  times  abound  in  contests.  Labor  and 
capital  are  in  strife.  Agriculture  wars  on  transportation.  Communism,  international- 
ism, and  other  forms  of  agitation  excite  the  v/orld.  Let  conventions  in  such  sea- 
sons possess,  by  mere  imputation,  all  the  powers  of  the  people,  and  what  security 
is  there  for  their  fundamental  rights?  Not  the  bill  of  rights,  nor  even  the  particular 
sentiment  that  brings  the  convention  into  existence.  Once  assembled,  a  convention, 
according  to  this  dogma,  is  all  powerful,  and  may  annul  any  declaration  in  the  Bill 
of  Rights  and  proclaim  a  Constitution  without  let  or  hindrance.  Who  will  predict 
what  effects  may  be  produced  by  combinations  foreign  to  the  purpose  which  actuated 
the  call?  The  fundamental  rights  of  the  people,  the  true  principles  of  civil  liberty,  the 
nature  of  delegated  power,  and  the  liability  of  the  people  to  temporary  commotion, 
all  rise  up  in  earnest  protest  against  such  a  doctrine  of  imputed  sovereignty  in  the 
mere  servants  of  the  people. 


DEBATES  OF  THE  CONSTITUTIOXAL  COXVENTIOX  OF  VIRGINIA. 


3135 


Dr.  Van  Hoist,  the  German  writer  on  American  constitutions  and  constitutional 
law,  says  in  discussing  this  subject  in  his  "Constitutional  Law  of  the  United  States:" 

It  has  repeatedly  become  of  the  greatest  political  significance  that  conventions — 
partly  by  appealing  to  precedents  in  the  struggle  of  the  colonies  with  the  mother 
country,  and  partly  in  imitation  of  the  convention  of  the  first  French  revolution,  have 
claimed  to  be  the  bearers  of  the  people's  sovereignty,  a  claim  that  in  its  final  logical 
results  tends  to  a  complete  overturning  of  the  fundamental  principle  of  American 
popular  government,  that  is,  transforms  sovereignty  into  its  very  opposite. 

So,  Mr.  President,  with  very  few  exceptions,  the  authorities  are  together  along 
this  line,  and  when  we  examine  the  text-books,  domestic  and  foreign,  the  consensus 
of  opinion  is  that  sovereignty  does  not  exist  in  representative  bodies,  nor  the  ex- 
ercise thereof,  without  the  express  delegation  of  it  by  the  people.  Prom  the  reason- 
ing set  forth  above  and  the  authorities  cited  in  its  substantiation,  I,  therefore,  deduce 
the  following  corollaries : 

1.  A  constitutional  convention  possesses  no  inherent  rights — it  has  delegated 
powers  only. 

2.  Acts  of  Legislatures  in  prescribing  limits  and  conditions  for  Constitutional 
Conventions  are  reservations  of  rights,  out  of  the  general  powers  belonging  to  the 
people,  for  the  benefit  of  the  people  and  not  a  delegation  of  such  power  to  the  Conven- 
tion. 

3.  A  Constitutional  Convention  is  bound  to  follow  the  rule  that  no  agent  or  repre- 
sentative of  the  people  can  claim  the  powers,  liberties,  or  franchises  of  the  people, 
except  by  their  express  warrant  and  authorization,  properly  and  lawfully  ascertained. 

4.  That  with  the  people  rests  the  right  to  limit  the  power  of  members  of  such 
conventions,  through  the  instrumentality  of  their  representatives  in  the  Legislature, 
as  much  so  as  to  bind  the  pov^ers  of  those  representatives  themselves. 

5.  That  powers  inconsistent  with  the  rights  and  liberties  of  the  people  cannot  be 
conferred  by  the  Legislature,  but  may  pass  limitations  in  favor  of  their  essential 
rights.    And  lastly — 

A  Constitutional  Convention  cannot  deprive  a  sovereign  people  of  their  right  to 
ratify  or  reject  an  organic  law  intended  for  them,  nor  can  it  give  to  its  inanimate 
product  the  requisite  life  and  vigor  until  a  full  and  complete  ratification  by  the  people; 
it  being  an  indispensable  condition  precedent. 

Then,  can  this  old  Commonwealth  afford  to  trample  upon  law  and  order  to  estab- 
lish such  a  precedent?  Remember  that  Jefferson  said  once  that  "one  precedent  in 
favor  of  povv'er  is  stronger  than  a  hundred  against  it."  And  where,  may  I  ask,  do 
those  who  v/ish  to  proclaim  this  instrument  look  for  such  power?  To  the  people,  to 
the  Constitution,  or  to  themselves?  Even  the  first  Napoleon  styled  himself  Emperor 
of  the  French  "by  the  grace  of  God  and  the  Constitution  of  the  empire."  The  friends 
of  proclamation  certainly  do  not  look  to  the  Constitution  for  their  pretended  povv-er, 
and  if  they  lay  claim  to  any  "saving  grace"  I  am  unaware  of  it,  although  it  would 
be  entirely  consistent  vv'ith  their  present  position. 

I  will  now  come  to  a  discussion  of  the  last  phase  of  the  subject — ^namely,  the 
remedy  of  the  people  in  case  this  new  Constitution  is  forced  upon  them. 

One  of  the  strong  arguments  of  the  friends  of  this  measure  is  that  no  one  will 
be  heard  to  question  the  right  of  the  Convention  to  proclaim!  that  acquiescence  is  a 
matter  of  necessity,  because  the  people  will  be  unable  to  help  themselves.  I  confess 
T  can  see  no  argument  in  such  anarchistic  sentiments.  On  the  other  hand,  I  believe 
the  people  will  have  a  sure  and  swift  remedy.  The  Constitution  of  the  United  States 
guarantees  each  State  a  republican  form  of  government,  and  by  a  republican  form  of 
government  I  understand  a  government  in  which  the  people  are  allowed  to  govern 
themselves,  either  assembled  generally  or  by  means  of  representatives  thereunto  law- 
fully empowered,  for  the  purpose  of  making  and  carrying  out  rules  of  action.  Chief 
Justice  Fuller  in  a  recent  case  delivered  the  opinion  as  follows: 

By  the  Constitution  a  republican  form  of  government  is  guaranteed  to  every  State 
in  the  Union,  and  the  distinguishing  feature  of  that  form  is  the  right  of  the  people 


3136  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

to  choose  their  own  officers  for  governmental  administration,  and  pass  their  own 
laws  in  virtue  of  the  legislative  power  reposed  in  representative  bodies,  whose  legiti- 
mate acts  may  be  said  to  be  those  of  the  people  themselves. 

Where,  then,  will  be  the  constitutional  guarantee  of  a  republican  form  of  govern- 
ment if  fifty-one  members  of  a  Constitutional  Convention  can  arbitrarily  enact  the 
laws  of  a  State  ad  libitum,  a  right  generally  supposed  to  be  conferred  by  republican 
forms  of  government  upon  the  people  alone?  And,  Mr.  President,  I  believe  as  firmly 
as  I  believe  any  fundamental  principle  of  the  law  that  when  the  matter  is  properly 
brought  before  the  Federal  courts  they  will  take  jurisdiction  on  the  ground  of  at- 
tempted violation  of  the  Federal  Constitution,  and  they  will  then  hold  the  work  of 
this  body  to  be  null  and  void,  because  it  denies  to  the  people  of  the  State  a  republican 
form  of  government.  Suppose,  for  example,  you  insert  in  your  proclamation  that  the 
present  Constitutional  Convention  is  made  a  fixed  and  permanent  feature  of  the  State 
government,  and  that  the  members  thereof  shall  possess  a  life  tenure.  If  we  have  a 
right  to  proclaim  at  all  we  would  have  the  right  to  do  this.  But  would  not  such  a 
proceeding  be  a  usurpation  of  the  people's  inherent  right  to  govern  themselves,  and 
would  it  not,  therefore,  contravene  all  accepted  ideas  of  a  republican  form  of  gov- 
ernment? 

And  while  I  am  unable  to  cite  any  case  where  the  question  has  been  passed  upon, 
still,  we  have  the  dicta  of  judges  in  several.  In  the  case  of  Wells  vs.  Bain,  75  Penn- 
sylvania State  Reports,  the  Court  in  conclusion,  says: 

The  Convention  is  not  a  co-ordinate  branch  of  the  government.  It  exercises  no 
governmental  power,  but  is  a  body  raised  by  law,  in  aid  of  the  popular  desire  to  dis- 
cuss and  propose  amendments,  which  have  no  governing  force  so  long  as  they  remain 
propositions.  While  it  acts  within  the  scope  of  its  delegated  powers,  it  is  not  amen- 
able for  its  acts,  but  when  it  assumes  to  legislate,  to  repeal,  and  displace  existing 
institutions  before  they  are  displaced  by  the  adoption  of  its  propositions,  it  acts 
without  authority,  and  the  citizens  injured  thereby  are  entitled,  under  the  declara- 
tion of  rights,  to  an  open  court  and  to  redress  at  our  hands. 

If  this  be  sound  law,  and  I  believe  it  is,  in  case  this  Convention  proclaims  its 
work,  every  county  judge,  every  county  clerk,  and  every  other  officer  whose  office 
is  abolished,  would  have  a  right  of  action  to  contest  the  right  to  dispossess  them  of 
their  office,  and  it  is  very  probable  that  they  would  take  advantage  of  that  right.  And 
so  should  they,  because  they  are  not  dispossessed  by  authority  of  law  at  all,  but 
by  the  illegal  promulgation  of  mere  proposals  of  revision  to  the  fundamental  law. 
The  present  Supreme  Court,  up  to  the  time  it  takes  the  oath  to  support  the  new 
Constitution,  will  in  my  opinion  have  full  power  to  hold  the  work  of  this  Convention 
illegal  and  invalid. 

Again,  could  not  Congress  refuse  admittance  to  the  senators  and  representatives 
of  this  State  if  the  Convention  denies  the  people  a  republican  form  of  government? 
But  the  surest  remedy  of  the  people  injured  by  such  proclamation  will  be  at  the 
hands  of  the  Legislature.  The  natural  answer  to  this  is  that  a  Legislature  cannot 
undo  the  work  of  a  Constitutional  Convention.  I  claim  that  it  can  in  cases  where 
it  has  had  the  power  to  prescribe  the  limits  for  that  Convention  and  those  limits  have 
been  over-reached,  then  the  Legislature  has  power  to  nullify  such  acts.  Jameson,  in 
his  work  on  Constitutional  Conventions,  page  416,  says: 

To  deny  to  that  body  the  right  to  hedge  about  the  institutions  in  which  our  lib- 
erties are  embodied,  would  be  to  make  it  adequate  to  the  transitory  and  more  trivial 
subjects  of  legislation,  but  inadequate  to  those  which,  while  they  are  no  less  strictly 
matters  of  legislative  cognizance,  far  transcend  in  importance  all  others  that  can 
arise. 

The  act  of  the  Legislature  requiring  the  work  of  the  Convention  to  be  submitted 
was  one  of  a  purely  legislative  nature,  and  could  not  be  conferred  on  the  Convention. 


DEBATES  OF  THE  COXSTITUTIOXAL  CO^'VEXTIO^'  OE  VTRGIXIA. 


3i3r 


Even  the  people  with  their  right  of  sovereignty  do  not  possess  it  in  our  republican 
form  of  government.  It  is  competent  alone  for  them  to  perform  such  work,  and 
there  is  no  constitutional  authority  by  which  it  can  be  delegated.  The  Convention, 
then,  never  possessed  the  pov.-er  to  decide  whether  it  could  or  could  not  proclaim  its 
work.  Under  the  act  of  the  Legislature  of  1901  it  was  bound  to  submit  that  v,-ork 
for  popular  ratification,  and  when  it  fails  to  do  this  the  Legislature  will  be  empowered 
to  set  it  aside.  Jameson  says,  in  discussing  the  opinion  of  the  court  in  the  case  of 
Rice  vs.  Foster: 

If  weight  is  to  be  given  to  this  and  numerous  other  decisions  of  our  courts,  ac- 
cording v/ith  it  in  principle,  it  is  clear  then  that  the  function,  often  assumed  by  con- 
ventions, of  submitting  to  the  people  the  result  of  their  deliberations,  more  properly 
belongs  to  the  Legislature,  the  latter  being  the  only  body,  which  can  constitutionally 
make  the  requisite  legislative  provisions.  It  follows,  therefore,  that  if  the  provisions 
made  by  a  convention  for  submitting  its  work  to  the  people  are  deemed  to  be  inex- 
pedient, whether  made  with  or  without  authority  of  law,  the  proper  law-making 
authority  of  the  State  may  repeal  or  alter  them  at  pleasure. 

Judge  Joel  Parker,  in  a  speech  before  the  Massachusetts  Convention  of  1S53^ 
used  the  following  strong  language: 

If  the  safety  of  the  State,  endangered  by  treason  in  the  Convention,  seemed  to 
.   -     demand  it,  it  i  snot  easy  to  see  how  a  Legislature  or  a  valid  State  government, 
charged  with  the  defence  of  the  public  liberties,  could  excuse  itself  for  permitting 
the  treason  to  ripen  unopposed.    See  Debates  Massachusetts  Convention,  1853,  Tol.  I, 
page  155. 

And  the  gentleman  from  August  (Mr.  Braxton),  in  his  contribution  to  the  Vir- 
ginia Law  Register  on  the  subject,  uses  this  language  in  discussing  the  acts  of  what 
he  terms  "Cc'nstitutional  Onmipotence" : 

Would  the  government — even  for  a  day — of  such  a  convention,  be  a  republican 
form  of  government,  such  as  the  Constitution  of  the  United  States  guarantees  to  each 
State?  Would  not  the  old  government  be  legally  bound  to  resist  the  usurpation  of 
such  a  Convention,  and  would  not  the  government  of  the  L'nited  States  be  bound  to 
intervene  and  forcibly  put  down  such  a  usurpation? 

And  in  a  foot-note  to  the  above  he  adds: 

Precedents  for  the  putting  down  of  illegal  conventions  by  the  old  government  (as- 
sisted in  one  instance  by  the  Federal  arm),  may  be  found  in  the  proceedings  of  the 
government  of  Maryland  in  1S37,  and  of  Rhode  Island  in  1842.  We  do  not  refer  any- 
where in  this  article  to  any  proceedings  connected  with  the  secession  or  reconstruc- 
tion periods,  which  are  too  revolutionary  and  irregular  to  serve  as  precedents  for  con- 
stitutional doctrines. 

So.  Mr.  President,  we  see  that  this  fear  is  shared  in  by  older  and  wiser  heads 
than  mine.  , 

The  question  of  a  submission  of  a  Constitution  to  the  people  when  so  ordered  by 
the  Legislature  is  one  purely  of  a  ministerial  nature.  The  Convention  has  no  discre- 
tion in  the  matter,  but  they  must  follow  strictly  the  act  defining  the  method  of  such 
submission  to  the  whole  electorate,  and  when  they  attempted  to  change  the  sense 
thereof  and  submit  their  work  to  a  dinerent  electorate  and  in  a  different  way,  the 
court  promptly  held  the  action  of  the  Convention  to  be  null  and  void. 

Certain  serious  consequences  may  flow  from  a  refusal  to  obey  the  act  of  the 
Legislature.  The  writers  on  the  subject  have  never  even  decided  as  to  whether  a 
subsequent  Legislature  may  not  repeal  the  act  of  the  former  Legislature  requiring  a 
submission,  when  the  Convention  refuses  to  obey  it.    Jameson  says: 


If  the  Legislature  has  that  power,  up  to  what  point  of  time  it  continues  to  exist, 


3138 


DEBATES  OF  THE  CONSTITUTIOIstAL  COKVEJsTTION  OF  VIKGI>TIA. 


and  whether  it  may  he  exercised  to  abolish  a  convention  already  in  session,  by  re- 
pealing the  act  calling  it  and  ordering  the  members  of  the  Convention  to  disperse,  is 
one  that  has  never  arisen  practically,  and  upon  which,  therefore,  it  may  be  useless  to 
speculate. 

Now,  if  the  Convention  refuses  to  comply  with  the  act  of  February  16,  1901,  why 
could  not  the  next  Legislature  repeal  such  act,  it  never  having  been  complied  with, 
and  thereby  put  an  end  to  this  high-handed  attempt  to  ride  rough-shod  over  the  con- 
stitutional rights  of  the  people?  I  do  not  believe  that  a  Constitution  proclaimed  under 
such  circumstances  will  have  any  binding  effect  I  do  not  believe  the  people  will 
be  required  to  submit  to  it,  and  I  do  not  believe  that  it  will  be  sustained  when  fairly 
tested  before  the  proper  tribunal,  I  do  not  believe  the  members  of  the  Convention 
will  be  entitled  to  retain  the  per  diem  that  they  received  as  a  compensation  for  per- 
forming their  duties,  as  prescribed  by  law.  The  Legislature  defined  the  work  for  them 
to  do;  that  is,  to  meet  on  the  12th  day  of  June,  1901,  to  revise  and  amend  the  exist- 
ing Constitution,  and  when  so  revised  and  amended  to  submit  the  same  to  the  people 
for  their  ratification  or  rejection,  and  until  they  do  this  they  have  not  complied  with 
the  law  and  they  are  not  entitled  to  the  remuneration  which  that  law  provides,  and 
if  they  do  not  comply  with  the  law  I  believe  a  right  of  action  will  accrue  to  the 
Commonwealth  of  Virginia,  to  demand  and  recover  from  each  member  of  this  Con- 
vention every  single  dollar  that  he  has  so  unlawfully  received. 

In  that  event,  instead  of  crowned  heads  and  sceptred  hands,  we  would  present 
the  pitiful  spectacle  of  a  vain  and  abortive  attempt  to  infringe  the  people's  dearest 
rights,  and  would  go  down  to  posterity  as  an  example  to  deter  other  constitution- 
makers  from  such  unwarrantable  violations  of  the  organic  law. 

The  conditions  that  confronted  Virginia  when  Patrick  Henry  gave  utterance  to 
his  immortal  alternative  of  "liberty  or  death"  were  caused  from  a  desire  to  shake 
off  the  galling  chains  of  tyrannical  oppression.  But  to-day,  surrounded  by  the  civiliza- 
tion and  experience  of  more  than  one  hundred  years  since  that  eventful  period,  we 
are  confronted  by  conditions  that  give  rise  to  an  alternative  almost  as  bad.  Shall 
V7e  have  constitutional  liberty  or  shall  we  have  political  death.  Proclaim  this  in- 
strument and  in  the  language  of  Mr.  Justice  Wilson,  in  Chisholm  vs.  Georgia: 

What  then,  or  where,  a/e  the  people?  Nothing;  nov\^here:  They  are  not  so  much 
as  even  the  baseless  fabric  of  a  vision.  From  legal  contemplation  they  totally  dis- 
appear. 

But,  Mr.  President,  this  can  never  be.  The  people  demand  and  will  have  absolute 
security  in  their  jural  and  forensic  rights.  It  needs  no  Constitution  to  insure  to  them 
the  right  to  govern  themselves.  It  is  found  in  the  lex  non  scripta  of  the  Anglo-Saxon 
race.  It  had  its  origin  at  Runnymede,  where  more  than  800  years  ago,  the  feudal  bar- 
ons extorted  from  King  John  the  provisions  of  Magna  Charta.  It  was  brought  by 
the  Pilgrims  as  an  exotic  when  they  sought  more  congenial  climes  for  its  transplanta- 
tion, and  it  prospered  and  flourished  until  now  it  is  regarded  as  an  indigenous  growth. 
With  it  our  forefathers  kindled  the  fires  of  liberty  in  the  Western  World.  It  per- 
meates our  i?nstitutions;  it  characterizes  our  national  life,  founded  on  justice,  like 
immortality,  "shall  flourish  in  immortal  youth,  unhurt  amidst  the  war  of  elements, 
the  wreck  of  matter,  and  the  crash  of  worlds." 

Mr.  President,  the  world's  history  is  replete  with  examples  of  republics  that  have 
waxed  and  waned.  From  the  days  of  the  Amphictyonic  Councils  to  the  present,  none 
have  been  able  to  withstand  the  disintegrating  influences,  caused  by  a  usurpation  of 
the  people's  rights. 

Rome,  Greece,  Sparta,  Venice,  and  the  rest  have  gone.  Like  meteors,  they  flashed 
for  a  moment  across  the  political  horizon  and  then  disappeared  forever. 

Standing  on  the  lofty  tower  of  civilization  we  can  look  across  the  tempestuous 
waters  of  time  and  see  the  wrecks  of  ages  and  of  empires.    The  Eternal  City,  who 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YiRGIXIA. 


3139 


from  her  seven  hills  waived  her  sceptre  over  the  subjugated  nations  of  earth,  has  been 
torn  asunder  by  faction,  and  where  once  Virgil  turned  his  lyre  to  sing  Aeneas's  fame, 
to-day  the  rude  shout  of  the  Italian  rabble  awake  the  echoes  in  the  morning  sun.  And 
behold  lovely  Greece,  who  stood  like  a  beacon  light  amid  the  gloom  and  superstition 
and  ignorance.  The  night  bird  keeps  vigil  over  the  melancholy  ruins  of  her  former 
grandeur,  and  the  wild  beast  roams  unheeded  where  once  her  refulgent  lamps  of 
learning  illuminated  the  world.  And  so  with  all.  Their  bones  lie  whitening  in  obliv- 
ion's sepulchre,  their  pristine  glory  has  vanished  av/ay.  History,  with  a  fanciful  hand, 
has  written  their  epitaphs  in  indelible  characters  and  posterity  wonders  at  their  pre- 
mature decay. 

Mr.  President,  v/e  have  reached  the  parting  of  the  roads,  but  experience,  that  uner- 
ring teacher,  has  erected  a  signboard  for  our  guidance  so  that  we  need  not  go  astray. 
On  the  one  side  is  written,  "The  Road  of  Power,"  on  the  other,  "The  Road  of  Right." 
One  is  the  straight  and  narrow  path  of  duty  that  leads  upward  to  that  high  plain  of 
governmental  perfection  to  which  all  nations  aspire.  The  other  is  the  broad  road  of 
usurpation.  It  winds  along  the  precipice  of  despotism  and  finally  disappears  in  the 
swamps  of  tyranny  and  oppression.  Mr.  President,  I  love  old  Virginia.  I  love  her  for 
what  she  has  been,  I  love  her  for  what  she  is.  Her  people  are  my  people,  her  govern- 
ment is  my  own.  I  long  to  see  her  shake  off  the  lethargy  of  reminiscence  in  which 
she  has  been  enwrapped  for  so  long,  and,  rejuvenated  and  refreshed,  take  her  place  in 
the  vanguard  of  civilization,  and  reform.  But  I  cannot  see  her  committed  to  this 
measure  vs^ithout  sorrow  and  regret. 

If  you  will  submit  to  the  people  of  this  Commonv/ealth  the  question  as  to  whether 
this  new  organic  law  shall  be  voted  upon  or  proclaimed  and  a  majority  of  the  quali- 
fied voters  give  their  assent  thereto,  then  and  not  until  then  will  I  agree  to  such  a 
proclamation.  (Applause.) 

Mr.  Wise:  Mr.  President,  I  v/ould  like  to  state  that  I  have  just  handed  to  the 
reporter  my  remarks  on  the  suffrage  question,  which  the  Convention  has  already  given 
me  permission  to  have  printed. 

The  Presiding  Officer:  The  Chair  understands  that  the  permission  of  the  Con- 
vention has  already  been  given  to  members  to  print  their  remarks  on  the  suffrage 
question  in  the  record. 

The  remarks  of  the  gentleman  from  Richmond  city  (Mr.  Wise)  on  suffrage  are 
as  follows: 

Mr.  Wise:  Mr.  President,  it  is  with  unfeigned  diffidence  that  I  trespass  upon  the 
attention  and  patience  of  the  Convention,  but  find  suffi-cient  excuse  for  so  doing  in  the 
importance  of  the  subject. 

The  elective  franchise  is  the  question  in  v/hich  the  people  of  Virginia  are  more 
deeply  interested  than  in  any  other,  and  upon  its  proper  solution  depend  largely  the 
welfare  and  prosperity  of  the  State. 

As  our  work  here  v/ill  receive  the  closest  scrutiny,  not  only  of  our  own  constitu- 
ents, but  of  the  citizens  of  all  the  States  of  our  Union,  it  behooves  that  we  should  act 
with  great  circumspection  and  deliberation. 

In  the  discussion  of  this  paramount  question,  let  us  endeavor  to  divest  ourselves 
of  all  unworthy  prejudices  and  partisan  feelings,  and  strive  to  reach  such  conclusions 
as  are  in  conformity  to  the  rules  of  right  in  principle  and  practice. 

Men  misled  by  prejudice  and  passion,  may  be  honest,  but  are  not  generally  wise 
in  counsel  or  prudent  in  action.  In  the  performance  of  the  important  duty  and  sacred 
trust  devolved  upon  us,  we  should  be  inspired  only  by  a  desire  to  establish  the  happi- 
ness and  advance  the  interests  of  all  the  people  of  Virginia;  to  perpetuate  their 
rights  and  liberties;  to  guard  our  institutions  from  danger,  and  to  transmit  the  bless- 
ings of  good  government  to  our  children.  .  . 

The  theory  of  our  political  system  is,  that  the  people  are  sovereign,  and  that  they 
are  the  source  of  all  legitimate  authority.    In  the  Bill  of  Rights,  drawn  by  George 


3140  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

Mason  in  1776,  and  which  was  appended  to  the  first  Constitution  of  Virginia,  this  doc- 
trine was  proclaimed  in  these  words: 

That  all  power  is  vested  in,  and  consequently  derived  from,  the  people;  that  mag- 
istrates are  their  trustees  and  servants,  and  at  all  times  amenable  to  them. 

In  this  basic  principle  is  the  distinctive  and  vital  characteristic  of  our  American 
governmental  institutions.  In  no  part  of  our  wide  domain  have  the  people  been 
more  earnest  and  emphatic  in  the  assertion  of  this  theory,  or  more  active  in  its  de- 
fence, than  those  of  Virginia.  But  in  all  of  the  State  constitutions,  at  the  time  of  and 
subsequent  to  the  Revolution,  restrictions  upon  suffrage  existed,  and  they  still  exist,  al- 
though greatly  changed  and  modified.  In  every  State  some  have  always  been  excluded 
from  participation  in  the  government.  The  political  maxim,  that  government  rests 
upon  the  consent  of  the  governed,  has  always  in  practice  been  subject  to  many  excep- 
tions. In  each  of  the  States,  the  electors  constitute  only  a  limited  number  of  its  in- 
habitants. By  the  organic  law,  they  are  made  the  governing  class,  and  sovereignty 
iF  practically  vested  in  them.  When  we  speak  of  the  people,  all  persons  are  intended 
to  be  included,  women  as  well  as  men,  minors  as  well  as  adults.  There  are  more 
females  than  males  in  this  State,  more  persons  under  than  over  the  age  of  21  years. 
They  are  as  deeply  interested  in  this  government  as  we  are,  and  many  of  them  own 
property  and  pay  taxes.  They  are  all  our  constituents,  and  as  much  entitled  to  the 
broad  segis  of  protection,  as  are  those  who  have  been,  or  shall  be,  designated  to  select 
whomsoever  they  please  to  rule  over  and  shape  the  destinies  of  the  Commonwealth, 
within  the  limitations  of  the  organic  law.  They  are  all  covered  by  the  bill  of  rights^ 
in  the  enjoyment  of  life,  liberty  and  property,  and  yet  they  are  voiceless,  powerless, 
and  defenceless.  Their  interests  are  involved  in  the  regulation  of  suffrage,  and  the 
maintenance  of  the  purity  of  the  ballot-box.  It  thus  appears  that  a  large  number  of 
persons  are  subject  to  laws,  in  the  enactment  of  which  they  have  no  voice;  that  a 
very  large  majority  of  the  people  of  this  and  the  other  States  have  never  been  clothed 
with  the  power  of  the  ballot.  Some  are  excluded  from  the  privilege  because  they 
lack  the  liberty  of  action  essential  to  its  exercise,  others  because  lacking  in  intelli- 
gence and  virtue. 

The  principle  of  restrictions  upon  suffrage  is  not  new,  and  was  recognized  as 
proper  and  necessary  from  the  very  inception  of  constitutional  government  in  America. 
The  right  to  vote  is  a  derivative  or  conventional,  and  not  a  natural  right;  strictly 
speaking  it  should  be  designated  a  privilege  or  trust.  When  we  come  to  determine 
who  shall  have  political  power  over  himself  and  others,  the  safety  of  the  State  and 
the  general  welfare  must  be  considered.  It  is  undeniable  that  those,  who  are  en- 
trusted with  the  power  to  make,  interpret  and  execute  the  laws,  ought  to  be  placed 
under  salutary  restraints  and  be  made  amenable^to  the  people.  Men  are  so  constituted, 
that  self-interest  or  ambition  will  prompt  them  to  use  authority  for  their  own  ag- 
grandizeme-nt,  and  to  disregard  and  trample  upon  the  rights  and  interests  of  others. 

Experience  has  shown  that  when  the  rulers  are  without  a  sense  of  accountability 
to  some  power  in  the  State,  the  tendency  is  towards  aggression  and  usurpation.  With 
whatever  care  their  powers  and  duties  may  be  limited  and  defined,  it  is  certain  that 
abuses  will  sometimes  arise  and  wrongs  be  committed.  The  only  corrective  of  such 
evils  in  administration  can,  in  my  opinion,  be  found  in  the  establishment  of  an  intelli- 
gent and  virtuous  electorate;  and  in  that  is  the  best  guarantee  of  a  stable  and  con- 
servative government.  "The  responsibility  of  the  rulers  to  the  ruled,  through  the 
right  of  suffrage,  is  the  indispensable  and  primary  principle  in  the  foundation  of  a 
constitutional  government." 

But  this  is  not  to  be  understood  as  an  endorsement  of  the  doctrine  of  universal 
suffrage.  I  believe  that  the  admission  of  that  principle  into  our  institutions  would 
prove  alike  dangerous  to  all  regular  government,  and  destructive  of  popular  rights. 
Its  condemnation  is  sanctioned  both  by  reason  and  experience,  and  such  perilous 
experiments  ought  to  be  avofded  especially  in  view  of  existing  conditions. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


3141 


\Miile  the  elective  franchise  is  essential  to  make  the  rulers  sensible  of  their  re- 
sponsibility to  the  people,  to  restrain  them  from  oppression,  and  to  make  them  faithful 
and  efficient  in  the  discharge  of  their  duties.  I  cannot  give  my  assent  to  the  proposi- 
tion that  all  the  citizens  of  a  State  ought  to  participate  in  their  selection. 

Suffrage  is  a  great  and  controlling  poTver  for  good,  vrhen  exercised  by  intelligent 
citizens;  it  is  a  dangerous  power,  in  the  hands  of  the  ignorant,  the  depraved  and 
the  vicious. 

The  vords  of  that  noble  and  gifted  Virginian,  who  was  descended  from  a  long 
line  of  illustrious  ancestors,  and  who  was  worthy  of  his  high  lineage  (I  refer  to  Hon. 
Jchn  Randolph  Tucker),  are  so  appropriate  that  I  will  take  the  liberty  to  insert  them 
here: 

Yv^ho  shall  have  man-right  is  a  question  settled  by  the  divine  title;  but  who  shall 
have  political  power  over  himself  and  others  must  be  a  matter  of  agreement  and  con- 
vention. The  question  is  whether  the  man  is  fitted  by  intelligence  to  perform  the 
function,  for  if  not,  he  cannot  claim  to  have  the  right  to  do  it,  the  second,  has  he  such 
interests  in  the  matters  ccntrolled  through  his  suffrage  as  to  check  the  misuse  of 
power  which  self-interest  always  prompts?  If  he  lacks  intelligence,  it  is  the  greatest 
absurdity  to  give  him  suffrage,  and  the  greatest  wrong  to  the  community.  If  he  lacks 
'Community  of  interest  in  the  laws  which  are  to  govern  the  community,  it  is  not  only 
a  serious  danger,  but  a  false  principle  to  give  it  to  him,  for  thus  you  give  power  to 
thp  hand  which  is  alien  to  the  right  of  others  which  it  controls.  Right  and  its  power 
of  self-defence  should  co-exist,  unless  its  power  through  ignorance  or  want  of  inter- 
est would  be  impotent  for  self-defence  and  potent  for  self-destruction,  and  the  ruin  of 
society. 

I  assume  that  it  will  be  conceded  by  all  thoughtful  men,  who  have  studied  the 
luestion,  that  the  right  of  suffrage  should  be  both  properly  limited  and  safely  guarded; 
that  in  conferring  it,  the  interests  of  the  whole  community  ought  to  be  considered, 
ra.ther  than  those  of  individuals.  The  strictest  professors  of  reason  have  added  the 
sanction  of  their  testimony  to  the  necessity  for  the  exercise  of  this  caution.  I  submit 
that  it  should  only  be  conferred  upon  those  who  have  a  proper  appreciation  of  their 
own  rights,  and  of  the  interests  of  the  community,  and  who  duly  appreciate  the  mo- 
tives and  conduct  of  the  rulers.  If  an  efficient  educational  qualification  can  be  de- 
vised, without  opening  wide  the  door  for  the  admission  of  frauds,  I  will  give  it  my 
most  hearty  support.  The  only  objection  to  such  a  test  lies  in  the  difficulty  of  its  ap- 
plication in  practice.  It  is  hard  to  so  fix  the  qualifications  as  to  conserve  the  best  . 
interests  of  the  State  and  at  the  same  time  to  avoid  injustice  to  some,  and  the  task 
becomes  more  arduous  when  we  attempt  to  enact  such  administrative  provisions,  as 
will  wholly  exclude  fraud  and  corruption. 

Permit  me,  Mr.  President,  to  pause  right  here  to  impress  upon  this  Convention 
and  upon  all  our  constituents,  the  truth  that  safety  lies  in,  ana  progress  must  come 
from,  the  education  and  elevation  of  all  the  peuyic,  white  and  black.  I  commend  to 
your  serious  consideration  these  words  written  by  a  distinguished  southern  student, 
Professor  Dabney: 

If  the  people  of  the  South  would  compete  in  production  with  those  of  other  States 
and  of  the  -^orld — and  they  must  do  so  whether  they  will  or  not — they  must  educate 
all  their  children,  not  only  their  white  children,  but  their  black,  and  they  must  educate 
them  all.  not  poorly  for  a  few  months  in  the  year,  and  a  few  years  In  their  lives,  but  « 
thoroughly  through  a  long  series  of  years.  If  history  teaches  anything  it  is  the  solidar- 
ity of  all  mankind,  that  "no  man  liveth  unto  himself."  and  "no  man  dieth  unto  himself," 
but  that  each  is  his  brother's  keeper. 

'Mr.  President,  history  teaches  no  fact  more  clearly  and  distinctly  than  this,  that 
the  productivity,  or  wealth  producing  power  of  a  State  is  dependent  upon  the  educa- 
tion and  training  of  its  people.  It  is'  easier  and  better  to  eliminate  illiteracy,  than  it 
is  to  formulate  just  rules  for  disfranchisement;  and  we  must  concede  that  there  is 
profound  wisdom  in  the  declaration  of  James  Russell  Lowell  that  "it  is  cheaper  in 


3142  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  long  run  to  lift  men  up  than  to  hold  them  down,  and  that  the  ballot  in  their 
hands  is  less  dangerous  to  society  than  a  sense  of  wrong  in  their  heads."  As  to  the 
kind  and  character  of  education  to  be  provided,  that  is  a  subject  for  the  considera- 
tion of  the  Legislative  Department,  and  not  of  .the  Convention.  With  an  electoral  sys- 
tem based  upon  intelligence,  supplemented  by  proper  provisions  for  education,  there 
will  be  no  cause  for  tear.  In  the  elevation  of  the  standard  of  citizenship  is  the  safety 
of  the  State.  He  commits  a  serious  error,  in  my  opinion,  who  endeavors  to  formulate 
general  fundamental  principles  concerning  the  elective  franchise,  to  be  applicable  to 
all  communities,  without  regard  to  circumstances  and  conditions.  Such  rules  and 
regulations  as  might  be  proper  for  one  community,  would  be  altogether  unsuited  to 
another.  Restraints  and  restrictions,  which  might  be  necessary  in  one  State,  would  in 
another  produce  the  spirit  of  discontent  and  cause  disorders.  The  men  who  pro- 
claimed the  immortal  principles  contained  in  the  Bill  of  Rights,  in  resistance  to 
British  tyranny  and  usurpation,  placed  therein  a  safe  and  wise  rule  for  our  guidance. 
They  declared  ''that  all  elections  ought  to  be  free;  and  that  all  men,  having  sufli- 
cient  evidence  of  permanent  common  interest  with,  and  attachment  to,  the  com- 
munity, have  tne  right  of  suffrage,  and  cannot  be  taxed  or  deprived  of  their  property 
for  public  uses,  without  their  own  consent,  or  that  of  their  representatives  so  elected, 
nor  bound  by  any  law  to  which  they  have  not,  in  like  manner,  assented,  for  the  public 
good." 

That  doctrine,  announced  amidst  the  thunders  of  the  revolution,  was  hailed  with 
the  shouts  and  plaudits  of  freemen  all  over  our  glorious  republic,  and  has  remained 
ever  since  a  cardinal  maxim  in  our  political  system.  The  path  to  the  ballot-box  should 
ever  be  kept  open,  and  that  receptacle  of  the  sovereign  will  should  be  guarded  from 
corruption  and  fraud  as  we  guard  our  lives  and  sacred  honor.  Our  fathers  held,  that 
the  protection  of  life,  liberty  and  property  is  the  chief  object  to  be  accomplished  by 
the  establishment  of  government,  and  that  suffrage  is  the  indispensable  privilege  to  be 
imbedded  in  its  foundation,  but  when  they  came  to  fix  the  rule  they  held  that  the 
electorate  ought  to  be  composed  only  of  land-owners.  Those  who  pay  tte  taxes  cer- 
tainly ought  to  have  a  voice  in  laying  them.  It  will  not  be  denied,  that  in  the  acqui- 
sition of  property,  there  is  not  only  evidence  of  community  of  interest  in  the  affairs 
of  the  State,  but  of  intelligence,  thrift,  and  frugality.  It  gives  assurance  not  only  of 
attachment  to  the  community,  but  of  conservative  action.  Representation  and  taxa- 
tion should  stand  together,  and  not  be  divorced.  The  principle  enunciated  in  the  Bill 
of  Rights,  is  sound,  and  in  consonance  with  reason,  but  in  its  practical  application  the 
fathers  were  too  narrow  and  contracted. 

For  more  than  seventy  years  we  lived,  flourished,  and  expanded  under  a  Consti- 
tution containing  a  property  qualification,  but  those  who  were  excluded  were  restless, 
and  never  ceased  to  utter  their  dissatisfaction  with  the  condition  in  which  they 
were  placed.  They  claimed  that  in  their  exclusion  an  unjust  and  an  unnecessary 
stigma  had  been  put  upon  them.  Then  new  leaders  of  the  people  stepped  upon  the 
stage  of  action,  brave  and  brilliant  as  the  men  of  yore.  They  contended  that  the 
rights  of  persons  are  as  sacred  as  those  of  property;  that  liberty  is  more  precious  than 
gold,  and  demanded  that  the  dollar  should  not  be  accounted  as  of  greater  value  than 
the  man.  The  people  gathered  with  enthusiasm  to  their  standard,  and  the  conservat- 
ism of  the  past  perished  under  the  blows  of  progressive  Democracy. 

It  must  be  conceded  that  there  was  force  and  wisdom  in  the  demand  for  an  en- 
largement of  the  basis  of  suffrage,  and  it  is  certain  that  the  men,  who  accomplished 
it,  v/ere  sustained  in  their  course  by  the  sentiments  of  a  large  majority  of  the  people. 
But  it  must  not  be  forgotten  that  the  changes  proposed  by  them  were  made  applicable 
to  white  men,  many  of  whom  were  the  descendants^^of  those,  who  were  the  founders 
of  our  republican  institutions.  The  privilege  conferred  was  to  be  enjoyed  alone  by  the 
Caucasian  race,  which  had  furnished  indubitable  proof  of  its  predominance,  and  of  its 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVEXTIOX  OE  VIKGIXIA. 


3143 


ability  to  maintain  and  enjoy  civil  and  political  liberty.  All  of  the  inhabitants  of  the 
State,  who  were  considered  in  the  regulation  of  suffrage,  were  of  one  homogeneous 
race,  and  the  dangers  which  now  confront  us  were  not  then  apparent. 

From  1776  to  1850  the  contest  was  maintained,  always  with  vigor,  and  at  times 
with  bitterness,  for  the  extension  of  the  elective  franchise  to  all  white  male  citizens 
of  the  Ccmmonv/ealth,  above  the  age  of  twenty-one  years,  who  were  not  paupers,  and 
who  had  not  been  convicted  of  bribery  in  an  election,  or  of  any  infamous  offence.  The 
long  struggle  culminated  in  complete  victory  for  the  advocates  of  the  liberal  policy, 
and  thus  the  murmurs  of  discontent  heard  in  certain  sections  of  our  State  were  hushed, 
the  bonds  of  amity  were  strengthened  and  tranquility  assured.  Whether  or  not  we 
are  prepared  to  endorse  as  wise  and  wholesome  the  changes  then  made  in  the  organic 
law,  no  evil  consequences  appeared,  and  the  administration  of  public  affairs  proceeded 
without  friction  and  without  disorders. 

Then  came  the  Civil  War,  which  drenched  our  land  with  fraternal  blood,  and  en- 
veloped our  homes  in  consuming  flames.  The  dark  and  angry  v^aves  of  the  fearful 
strife  swept  over  us,  and  we  heard  the  cry  of  Miserere  uttered  by  the  lips  of  wounded 
heroes  stretched  upon  every  bloody  field.  "The  fruits  of  industry  perished  on  the 
spot  v/here  they  were  produced,  or  were  consumed  by  the  foe";  and  there  was  not  a 
roe  left  in  the  wilderness  to  tefl  where  the  garden  had  been. 

Amid  the  thunders  and  smoke  of  artillery,  and  the  clash  of  arms  there  came  the 
dawn  of  the  day  of  freedom  for  the  slave.  The  President  proclaimed  his  emancipa- 
tion, and  the  result  of  the  war  was  its  accomplishment. 

Mr.  President,  I  do  not  allude  to  that  gigantic  conflict,  which  shook  this  continent 
from  centre  to  circumference,  and  upon  which  the  nations  gazed  in  awe  and  with 
trembling,  with  any  purpose  to  invite  criminations  and  recriminations — "Let  the  dead 
past  bury  its  dead."    I  rejoice  that — 

Now  is  the  winter  our  discontent 
Made  glorious  Summer; 

And  all  the  clouds  that  lour'd  upon  our  house 
In  the  deep  bosom  of  the  ocean  buried. 

And  discord,  disunion  and  faction  in  the  deep  bosom  of  the  ocean  buried. 

I  allude  to  it  only  to  bring  us,  in  the  sequence  of  events,  to  the  contemplation  of 
the  present  situation.  The  former  slave  became  a  freeman,  as  I  have  said.  His 
emancipation  was  a  blessing,  no  less  to  his  master  than  to  him,  but  who  will  deny 
that  a  great  mistake  was  committed  in  conferring  upon  him  the  right  to  suffrage,  as 
it  was  done? 

Mr.  President,  I  cannot  think  that  the  expression  will  be  considered  too  harsh  if 
I  characterize  the  act  as  an  outrage.  We  make  no  complaint  against  the  enactment 
of  the  Thirteenth  Amendment  to  the  Constitution,  by  which  it  was  provided  that 
"neither  slavery  nor  involuntary  servitude,  except  as  a  punishment  for  crime  whereof 
the  party  shall  have  been  duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction." 

We  will  go  farther  and  say  that  it  was  right  to  prohibit  slavery  and  all  classes 
of  involuntary  servitude  not  imposed  as  a  punishment — neither  is  there  any  ground 
for  complaint  against  that  clause  in  the  Fourteenth  Amendment,  wherein  it  is  de- 
clared that  "no  State  shall  deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  unto  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  We  may  even  admit  that  there  was  necessity  for  placing  in  the  funda- 
mental law  the  provision  quoted.  R  was  just  to  protect  the  emancipated  slave  in  his 
rights  as  a  free  man.  But  we  must  denounce  as  an  outrage,  without  a  parallel  in  the 
political  history  of  our  country,  except  that  committed  in  the  dismemberment  of  Vir- 
ginia, the  Fourteenth  and  Fifteenth  Amendments,  so  far  as  they  operated  in  conjunc- 
tion with  acts  of  Congress,  to  enfranchise  the  whole  negro  race.    They  were  without 


3144  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

education,  without  the  requisite  intelligence,  and  unfitted  by  training  and  experience 
for  the  exercise  of  that  function.  They  were  unable  to  govern  themselves  wisely  and 
well,  and  hence  ought  not  to  have  been  clothed  v/ith  the  power  to  govern  others,  es- 
pecially the  superior  race.  In  all  the  Southern  States  they  constitute  a  large  propor- 
tion of  the  population,  and  in  some  of  them  the  numerical  majority.  Mr.  Tucker,  in  his 
work  on  the  "Constitution,"  in  speaking  of  the  exercise  of  political  power  by  diverse 
peoples,  says: 

If  the  external  civil  power  must  limit  the  liberty  of  a  savage  to  conserve  social 
order,  for  a  stronger  reason  the  Constitution  of  a  people  should  abridge  the  power  of 
such  savage  in  the  exercise  of  political  functions.  If  he  cannot  control  himself,  and 
therefore,  must  be  controlled  by  others,  why  should  he  have  equal  power  to  govern 
the  State  with  those  Vv^ho  have  perfect  power  of  self-control?  It  may  be  safe  to  give 
suffrage  to  a  perfectly  moral  man  when  it  would  be  wholly  wrong  to  give  it  to  a 
savage  in  ignorance  or  a  savage  in  brutality. 

The  attempt  to  make  tv/o  such  essentially  distinct  and  different  races  equal  in  the 
government  was  certain  to  be  followed  by  such  consequences  as  v*^e  have  witnessed. 
The  elective  franchise  ought  to  be  under  the  complete  control  of  the  people  of  each 
State,  to  be  so  adjusted  as  to  suit  the  varying  conditions.  The  founders  of  the  Re- 
public displayed  the  highest  wisdom  in  leaving  that  question  to  their  management.  In 
taking  from  the  States  absolute  power  over  that  subject,  their  strength  and  dignity 
were  impaired,  and  in  forcing  upon  them  ignorant  and,  in  many  instances,  vicious  suf- 
fragists, disorders,  collisions,  and  at  times  even  violence,  were  inevitable. 

"In  the  safety  of  the  States  is  the  safety  of  the  Union."  In  their  preservation  in 
all  their  original  strength  and  vigor  is  the  glory  of  the  unity.  In  thus  speaking  of 
the  action  of  the  government  in  conferring  suffrage  upon  the  negro,  I  do  not  wish  to 
be  undersood  as  entertaining  unfriendly  feelings  and  sentiments  towards  that  race. 
T  think  that  they  ought  to  be  the  objects  of  the  most  humane  consideration;  that  our 
treatment  of  them  ought  not  only  to  be  fair  but  generous. 

In  view  of  the  constitutional  provision  that  there  shall  be  no  discrimination  in 
the  rule  of  suffrage  on  account  of  race,  color  or  previous  condition  of  servitude,  I 
favor  only  the  exclusion  of  those  vv^ho  are  ignorant  and  debased,  and  who  are  without 
a  proper  appreciation  of  the  duties  and  responsibilities  of  citizenship,  and  disposi- 
tion to  perform  them  conscientiously.  I  am  actuated  only  by  a  regard  for  the  best 
interests  of  our  State,  rather  than  for  those  of  individuals;  by  a  desire  to  preserve 
public  order,  and  perpetuate  the  protection  of  individual  rights.  I  recognize  it  as  a 
sacred  duty  resting  upon  the  superior  race  to  lead  him  to  a  higher  civilization,  and 
t-^  bestow  such  benefits  that  will  make  him  a  ~goo6.  and  useful  citizen. 

I  have  no  fear  of  negro  domination;  that  is  impossible  anywhere  in  the  South. 
The  Caucasian,  v/hen  brought  into  contact  with  any  of  the  inferior  races,  always  has 
ruled,  and  always  will.  Let  us  exhibit  our  superiority  in  the  development  of  our 
intellectual  and  moral  faculties,  and  in  the  cultivation  of  tl^e  graces  and  virtues  v/hich 
marked  the  perfect  man.  In  our  conduct  towards  the  negro  there  is  no  occasion  for 
the  display  of  hate  or  prejudice;  for  the  practice  of  injustice  and  oppression.  Both 
duty  and  policy  prompt  us  to  do  all  in  our  power  to  elevate  him,  and  teach  him  that 
license  is  not  liberty,  and  that  freedom  is  not  secure  unless  regulated  by  law. 

There  are  two  erroneous  opinions  entertained  by  a  large  number  of  the  members 
of  this  Convention.  One  is,  that  we  can  exclude  from  the  right  of  suffrage  all  the 
negroes,  or  a  majority  of  them,  without  at  the  same  time  disfranchising  some  white 
men;  the  other  is — and  I  think  this  the  most  important — that  the  negro  problem — mark 
my  words — that  the  negro  problem  will  be  settled  when  we  have  reached  a  satisfac- 
tory solution  of  the  suffrage  question. 

As  to  the  first — the  disfranchisement  of  all  or  a  majority  of  the  negroes,  without 
including  some  white  men  in  the  exclusion  from  the  privilege  of  suffrage — that  can- 
not be  accomplished,  in  my  humble  opinion,  without  a  violation  of  the  Fifteenth 
Amendment  to  the  United  States  Constitution. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION- OF  VIRGINIA.  3145 

We  may  denounce  it  as  we  will.  I  have  already  denounced  it.  It  was  obtained  by 
fraud.  I  could  utter  no  words  of  denunciation  against  it  and  the  reconstruction  acts 
of  Congress  more  bitter  than  those  uttered  by  an  eloquent  and  able  gentleman,  who 
bore  upon  his  person  many  wounds  received  in  defence  of  the  flag  and  the  Union.  I 
refer  to  General  Francis  P.  Blair,  who  served  during  the  Civil  War  with  great  dis- 
tinction m  the  Union  army. 

The  Senate  having  under  consideration  the  joint  resolution  of  the  Legislature  of 
Indiana  withdrawing  its  assent  to  the  ratification  of  the  Fifteenth  Article  of  Amend- 
ment to  the  Constitution,  he  said,  in  reply  to  the  senator  from  that  State  (Mr.  Mor- 
ton) that — 

The  two  senators  who  sat  here,  from  my  own  State,  neither  of  whom  sit  here  now, 
voted  for  this  amendment  after  the  people  of  Missouri,  in  the  election  immediately 
preceding,  had  voted  down  negro  suffrage  by  thirty  thousand  majority,  and  the  Legis- 
lature elected  by  that  very  vote  ratified  the  amendment,  in  defiance  of  this  over- 
Vvhelming  expression  of  public  sentiment. 

A  similar  state  of  facts  occurred  in  Kansas,  where,  in  the  election  preceding,  negro 
suffrage  had  been  defeated  by  fiftteen  thousand  majority.  In  the  State  of  Ohio  the  ma- 
jority against  negro  suffrage  was  fifty  thousand,  and  yet  her  Republican  senators  and 
representatives  and  her  Republican  Legislature  promptly  disregarded  the  public  will  by 
proposing  and  ratifying  this  amendment. 

In  the  State  of  Michigan  the  people  refused  to  give  suffrage  to  the  negroes  by  a 
majority  of  thirty-four  thousand.  Her  senators  and  representatives  were  equally  re- 
gardless of  the  wishes  of  their  people  and  hastened  to  fasten  upon  them  an  organic 
law  for  which  they  had  proclaimed  their  detestation.  I  could  go  on  and  enumerate 
many  more  of  the  Northern  States  in  which  the  people  had  expressed  their  will  with 
equal  emphasis,  and  were  treated  with  equal  contempt  by  their  Republican  senators 
and  representatives.  Among  the  number  were  the  States  of  New  York,  Connecticut 
and  New  Jersey;  and  indeed,  I  think  that  none  of  the  Northern  States  can  be  ex- 
cepted— not  one.  *   *  * 

If  adopted  at  all,  we  have  seen  that  it  was  adopted  against  the  remonstrance  of 
all  the  people  of  the  North,  and  simply  by  coercion  in  the  States  of  the  South;  and 
yet  that  amendment  is  now  to  be  considered  as  one  of  those  sacred  things  upon 
which  no  man  must  lay  his  hands. 

And  in  speaking  of  the  reconstruction  acts  of  Congress,  he  said: 

You  can  hardly  put  your  hand  on  a  single  sentence  of  these  abominations — mark 
the  word — these  abominations — without  encountering  some  violation  of  the  Constitu- 
tion, in  its  letter  or  principle,  of  the  United  States;  and  the  difficulty  is  to  find  any 
one  of  its  articles  which  they  do  not  violate.  These  gentlemen  themselves  knew  these 
acts  to  be  in  violation  of  the  Constitution.  I  do  not  hesitate  to  say  that  the  conduct 
of  Congress  betrayed  their  own  knowledge  of  the  fact  that  they  were  violating  the 
Constitution. 

I  have  thus  briefly  called  attention  to  the  Fifteenth  Amendment,  and  recited  some 
'historical  facts  in  connection  with  its  adoption  as  a  part  of  the  Constitution. 
The  truth  should  be  known,  and  these  facts  be  kept  fresh  in  the  memories  of  our 
people.  While  I  admit,  that  in  the  discussion  of  this  question  it  is  to  be  accepted  as 
a  part  of  the  organic  law  of  the  Republic,  I  am  free  to  make  the  confession  that  it 
is  not  regarded  by  me  with  any  feeling  of  reverence. 

In  considering  the  question  who  shall  vote,  we  are  forbidden  by  that  amendment 
to  discriminate  on  account  of  race,  color  or  previous  condition  of  servitude.  It  must 
be  observed  and  obeyed,  as  our  acts  may  be  reviewed  by  the  courts.  There  is  no  rule, 
as  I  have  already  said — no  rule  of  which  I  have  any  knowledge — by  which  all  the 
negroes,  or  a  majority  of  them,  can  be  disqualified,  w^hile  all  the  whites  are  permitted 
to  vote,  without  coming  in  conflict  with  that  Fifteenth  Amendment. 

The  second  error  into  which  many  have  fallen,  is,  that  the  negro  problem  will 
be  settled  when  we  have  reached  a  satisfactory  solution  of  the  suffrage  question. 
There  are  here  in  our  midst  two  essentially  distinct  races,  differing  in  color,  physical 
198 — Const.  Deb. 


3146  DEBATES  OF  THE  CONSTITUTIOJ^AL  CONVENTION  OF  VIRGINIA. 

conformation,  characteristics,  habits,  disposition,  aspirations  and  tendencies.  The 
honorable  and  eloquent  gentleman  from  Norfolk,  who  opened  the  discussion  upon  this 
question,  told  you,  and  he  told  you  truly,  that  two  such  essentially  distinct  races  can- 
not exist  together  in  peace  and  happiness,  in  the  enjoyment  of  equal  civil  and  political 
rights.  I  not  only  endorse  what  he  said,  but  go  further.  They  cannot  stay  together  at 
all.  It  is  useless  to  speak  upon  that  subject  to-night.  It  is  no  part  of  our  business 
to  settle  the  problem,  but  as  sure  as  there  is  a  God  in  heaven  the  African  will  have  to 
go.  The  law  of  the  survival  of  the  fittest  will  prevail,  and  when  the  competition  shall 
become  fierce  and  sharp,  the  white  man  will  not  only  rule,  but  wril  drive  out  the 
inferior  race.  That  must  be  and  will  be  the  inevitable  result.  Race  prejudices 
always  have  and  always  will  exist.  Between  the  old  time  negro  and  the  white  man 
there  existed  not  only  the  feeling  of  friendship,  but  of  love.  When  he  shall  have  dis- 
appeared, then  collisions  and  disorders  will  be  more  frequent  and  violent. 

Now,  gentlemen,  to  show  you  that  I  am  not  uttering  new  sentiments,  permit  me 
to  read  to  you  the  words  of  one  of  the  most  gifted  Republicans  in  America — a  man 
whose  fame  has  spread  not  only  throughout  our  own  country,  but  the  world — vigorous 
in  his  prejudices,  strong  in  his  denunciations.  The  man  whose  words  I  am  going  to 
read  to  you  was  foremost  among  those  who  fastened  upon  the  people  of  the  South 
the  Fourteenth  and  Fifteenth  Amendments,  and  all  the  reconstruction  acts  of  Con- 
gress. I  allude  to  the  Hon.  George  E.  Edmunds,  who  recently  represented  the  State 
of  Vermont  in  the  Senate  of  the  United  States.    He  said: 

I  doubt  whether  the  people  of  Massachusetts,  whom  you,  Mr.  President  (Mr. 
Dawes  in  the  chair),  and  your  colleague  so  honorably  represent,  would  desire  that  im- 
migration of  the  people  of  Africa  to  that  great  and  noble  old  Commonwealth  should 
be  encouraged.  The  people  of  Massachusetts — I  speak  of  them  ab  extra,  although  as 
a  senator  of  the  United  States  I  ha:ve  a  right  to  speak  of  them,  if  not  for  them — 
I  do  not  think  would  be  hungry  for  an  irruption  of  a  million  of  the  inhabitants  of  the 
continent  of  Africa  to-day.  or  to-morrow,  or  next  year,  not  because  th'e  people  of  Mas- 
sachusetts have  any  hostility  to  the  African;  not  because  they  do  not  desire  his  devel- 
opment, his  growth,  his  education,  every  amelioration  that  may  belong  to  him,  but 
because  they  believe  by  instinct  or  by  education  that  it  is  not  good  for  two  races  to 
be  brought  into  that  kind  of  contact  in  that  place. 

Perhaps,  I  overstate  it;  perhaps  my  honorable  friend  from  Massachusetts,  speak- 
ing for  that  great  Commonwealth,  will  say  that  after  providing  for  the  war  premium 
men,  the  one  thing  v^hich  the  people  of  Massachusetts  are  hungering  for,  is  a  very 
large  African  immigration.  I  do  not  think  that  can  be  so.  Speaking  in  part  for  the 
people  of  Vermont,  I  am  sure  it  is  not  so  as  to  them.  It  is  not  based,  I  repeat,  on 
any  hostility  to  the  African;  it  is  not  based  on  any  want  of  good  will  to  the  African. 
It  is  based  upon  belief  that  nations  and  races,  as  they  have  been  constituted  by  the 
God  of  Nature  and  by  political  and  geogranhical  divisions  and  arrangements,  get  on 
better  as  separate  families,  with  their  separate  independence  and  their  separate  in- 
stitutions, than  they  do  am.algamated  together,  unless  their  origin,  their  race,  their 
tendency,  their  nature,  is  such,  that  being  together,  they  assimilate  and  become  one 
perfect,  homogeneous  and  prosperous  mass. 

I  do  not  need  to  call  the  attention  of  senators  to  that  fundamental  principle  of 
domestic  government,  that  in  order  to  success,  that  just  success  which  produces  hap- 
piness to  its  people,  no  republic  can  succeed  that  has  not  a  homogeneous  population. 
That  was  what  was  for  so  long  a  time  the  curse  of  our  Southern  sister  States.  It 
was  the  want  of  homogeneity  that  they  thought  v/as  mitigated  and  helped  out  by  the 
fact  that  the  different  races  occupied  different  positions,  one  dominant,  and  the  other 
servile.  It  did  not  accomplish  it  then,  as  they  will  all  tell  you  now,  Mr.  President, 
and  the  one  great  evil  there  now  is,  not  that  the  white  man  is  better  than  the  black 
man,  or  the  black  man  better  than  or  equal  to  the  white  man,  but  it  is  that  there  has 
not  yet  been  time  enough,  if  ever  there  may  be,  that  in  the  real  and  best  sense  of  a 
homogeneous  order  in  a  republic,  these  two  peonies  can  assimilate  and  coalesce  so 
as  to  make  such  a  democratic  state  as  I  am  speaking  of. 

All  this,  Mr.  President,  is  fundamental  in  the  long  reaches  of  historic  observation 
everywhere.  My  learned  friends  from  Massachusetts  may  begin  with  Aristotle  and 
come  down  to  Webster,  and  they  will  find  everywhere  over  that  long  reach  of  human 
experience,  that  the  fundamental  idea  of  a  prosperous  republic  must  be  the  homo- 
geneity of  its  people. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIEGIXIA.  3147 

Yes!  there  has  not  yet  been  time  enough,  and  there  never  will  he,  when  these 
two  peoples  can  assimilate  and  coalesce,  so  as  to  make  such  a  democratic  state  as 
the  gifted  senator  was  speaking  of.  Such  a  consummation  is  impossible.  He  cannot 
fi.nd  in  the  long  reaches  of  human  experience  everywhere  any  justification  for  the 
expectation,  if  he  entertains  it,  that  such  a  wild  dream  will  ever  be  realized. 

These  two  races  will  remain  distinct,  as  they  have  been  constituted  by  the  God 
of  Nature,  and  will  not  become  one  perfect,  homogeneous  and  prosperous  mass. 

No  republic  can  succeed,  no  State  can  be  prosperous  and  happy,  with  two  such 
essentially  distinct  races,  in  the  enjoyment  of  equal  civil  and  political  rights  and 
privileges. 

Settle  the  suffrage  question  as  you  will,  the  negro  problem  will  still  confront  you. 
[  have  already  detained  you  too  long,  but  permit  me  briefly,  before  concluding,  to  com- 
pare and  criticise  the  two  plans  of  suffrage  submitted  for  your  consideration  by  the 
Committee  on  the  Elective  Franchise,  one  signed  by  the  majority,  and  another  signed 
by  the  minority  of  its  members. 

Before  undertaking  that  task,  I  will  give  utterance  to  a  sentiment,  already  made 
prominent,  that  we  do  not  want  an  irruption  of  negroes  from  other  sections  of  our 
country.  The  Southern  States  have,  within  recent  years,  taken  such  action  as  is  cal- 
culated to  cause  many  of  their  negroes  to  come  to  dwell  within  our  borders.  If  we 
do  not  raise  high,  and  make  strong,  the  dykes,  we  will  be  submerged  by  the  waves 
of  ignorance  and  vice  flowing  from  that  quarter.  Something  must  be  done  for  the 
protection  of  our  people  against  this  evil,  and  our  preparations  for  it  should  be  such 
as  the  condition  demands. 

No  temporary  makeshift,  no  temporizing  policy  will  satisfy  our  constituents. 

We  will  first  consider  the  minority  report,  which  has  been  changed  since  its  intro- 
duction, and  is  now  known  as  the  Glass  plan.  After  the  usual  provision  as  to  citizen- 
ship, age,  the  duration  of  residence  in  the  State,  county  or  city,  the  requirement  of 
registration,  and  of  the  payment  of  a  poll  tax  of  one  dollar  and  fifty  cents  ($1.50) 
to  the  State  for  the  preceding  year,  it  provides  that  there  shall  be  two  general  regis- 
trations of  voters  during  the  year  19132,  at  which 

No  person  shall  be  listed  as  a  voter  unless,  when  he  offers  to  register  he  shall  be 
able  to  read  any  section  of  this  Constitution,  which  may  be  submitted  to  him  by  the 
registrars,  and  give  a  reasonable  explanation  of  the  same;  or,  being  a  person  who  can- 
not for  himself,  read  such  section  of  the  Constitution,  shall  be  able  to  understand  and 
give  a  reasonable  explanation  thereof  when  read  to  him  by  the  officers  of  registration; 
provided  that  these  requirements  shall  not  apply  in  the  case  of  any  person  or  the  law- 
ful descendant  of  any  person  vvho  has  served  in  time  of  war  in  the  army  or  navy  of 
the  United  States,  or  of  the  Confederate  States,  or  of  any  State  of  the  United  States, 
nor  to  any  person  who  shall  have  paid  to  the  State  for  1901  taxes  amounting  to  as 
much  as  one  dollar  ($1.00)  on  property  owned  by  and  assessed  against  him.  All  per- 
sons properly  registered  under  this  provision  shall  remain  permanently  enrolled  as 
electors,  unless  subsequently  disqualified  by  some  other  provision  of  this  article.  The 
right  of  appeal  is  reserved  to  every  person  denied  registration  under  this  section,  to 
the  Circuit  Court  of  the  count}'',  or  the  Corporation  Court  of  the  city,  or  to  the  judge 
thereof  in  vacation.  The  payment  of  a  poll  tax,  as  a  prerequisite  to  voting  shall  not 
be  required  at  any  election  held  prior  to  January  1,  1903,  after  which  time  the  voter 
shall  be  required  to  pay  as  a  prerequisite  to  the  right  of  suffrage  the  poll  tax  of  every 
year  for  which  such  tax  shall  have  become  due  and  payable;  but  the  collection  of 
said  poll  tax  shall  not  be  enforced  by  distress  or  otherwise  until  it  shall  have  become 
two  years  past  due.  But  persons  who  have  served  in  time  of  war  in  the  army  or  navy 
of  the  United  States,  of  the  Confederate  States,  or  of  any  State  of  the  United  States 
are  exempted  from  the  payment  of  a  poll  tax  as  a  prerequisite  to  voting. 

I  have  given  the  salient  and  principal  features  of  the  plan,  so  as  to  enable  the 
members  of  the  conference  to  have  them  under  observation,  while  considering  them. 
The  gentleman  from  Augusta  (Mr,  Braxton)  endeavored  to  show  that  that  clause  in 
which  each  of  the  plans,  which  is  commonly  denominated  the  understanding  clause, 
is  in  conflict  with  the  Fifteenth  Amendment  to  the  Constitution  of  the  United  States. 


3148 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


It  is  not,  in  my  opinion,  necessary  to  waste  many  words  upon  that  proposition. 
In  making  this  declaration,  I  do  not  wish  to  be  understood  as  wanting  in  respect  for 
that  gentleman.  I  have  the  highest  admiration  for  him,  and  listened  to  him  with 
:niuch  pleasure  and  interest.  He  is  always  able  and  eloquent.  The  understanding 
'Clause  of  the  Mississippi  Constitution,  which  is  almost  the  same  as  that  contained  in 
the  Glass  plan,  has  already  been  before  the  Supreme  Court  of  the  United  States,  and 
received  its  unanimous  endorsement  in  the  case  of  Williams  vs.  Mississippi,  170  U.  S. 
Reports,  p.  218. 

Mr.  Justice  McKenna,  in  delivering  the  opinion  of  the  court  in  that  case,  said: 

They  (the  Constitution  of  Mississippi  and  its  statutes)  do  not,  on  their  face,  dis- 
criminate between  the  races,  and  it  has  not  been  shown  that  their  actual  administra- 
tion was  evil,  only  that  evil  was  possible  under  them. 

It  will  be  conceded,  I  take  for  granted,  that  the  right  of  citizens  of  the  United 
State  to  vote  is  not  denied  or  abridged  by  our  understanding  clause,  on  account  of 
race,  color  or  previous  condition  of  servitude,  and  the  Fifteenth  Amendment  to  the 
Constitution  gives  to  negroes  no  more  than  impartial  consideration  in  the  law  of  suf- 
frage. If  this  provision,  fair  on  its  face,  shall  be  embodied  in  the  organic  law  of  Vir- 
ginia, and  then  afterwards  shall  be  so  applied  by  public  authority  as  to  amount  prac- 
tically to  prohibited  discrimination  or  the  denial  of  equal  justice,  the  person  thereby  in- 
jured, in  my  opinion,  would  have  the  right  of  appeal  to  the  courts,  and  I  doubt  not 
that  in  a  proper  case  redress  would  be  afforded.  But  it  is  not  likely — I  cannot  conceive 
to  be  possible — that  the  understanding  clause,  as  it  is  called,  which  has  been  pro- 
nounced not  to  be  repugnant  to  the  Constitution,  will  be  declared  to  be  in  conflict  with 
that  instrument.  After  an  earnest  appeal  to  the  members  of  the  conference  not  to 
adopt  any  report  containing  the  understanding  clause,  because  he  considered  that  it 
mJght  be  held  unconstitutional,  the  gentleman  from  Augusta  gravely  proposed  that 
we  should  insert  in  the  organic  law  of  Virginia  a  provision  for  the  registration  of  all 
persons,  who  were  entitled  to  vote  or  own  property  on  the  first  day  of  January,  1850, 
or  at  any  time  prior  thereto,  under  the  laws  of  any  State  of  the  United  States  wherein 
they  then  resided,  and  the  legitimate  lineal  descendants  of  such  persons.  It  will  not, 
I  think,  be  seriously  denied  that  such  a  clause  might  be  applied  and  administered  with 
an  evil  eye  and  an  unequal  hand.  Here  we  have  the  "Grandfather  Clause,"  with  all 
its  most  hideous  features.  Gentlemen,  I  am  not  going  to  insult  your  intelligence  by  de- 
bating the  question  whether  it  is  constitutional.  Its  purpose,  to  take  away  from  the  negro 
the  privilege  of  the  franchise,  on  account  of  race,  color,  or  previous  condition  of  servitude, 
is  written  in  the  largest  letters  right  upon  its  face.  But  its  most  objectionable  feature 
is  the  proposition  to  establish  the  hereditary  qualification  for  the  suffrage,  and  the 
same  feature  appears  in  the  Glass  plan,  v/herein  soldiers  and  their  lawful  descendants 
are  exempted  from  the  requirement  imposed  upon  other  applicants  for  registration, 
that  they  shall  be  able  to  read  any  section  of  the  Constitution  submitted  to  them  by 
the  registrars,  and  give  a  reasonable  explanation  of  the  same;  or  being  unable  to  read, 
shall  be  able  to  understand  and  give  a  reasonable  explanation  thereof,  when  read  to 
them  by  the  officers  of  registration.  Political  rights  and  privileges  are  not  inherited  in 
America.  When  the  colonies  inaugurated  the  revolution,  and  established  free  govern- 
ment here  upon  the  North  American  Continent,  it  was  done  in  resistance  to  the 
odious  doctrine  that  offices  and  privileges  should  descend  from  father  to  son.  The 
Democratic  party  has  denounced  in  unmeasured  terms  the  imperialistic  tendencies  in 
this  country,  manifested  in  territorial  extension  as  a  consequence  of  the  war  with 
Spain,  and  in  the  manner  of  governing  the  provinces  thus  acquired;  but  here  we  are 
asked  in  the  proposition  to  revive  hereditary  privileges,  to  violate  an  essential  principle 
of  our  Democratic  Republic. 

I  have  a  letter  here  from  Hon.  John  Morgan,  Senator  from  Alabama,  one  of  the 
strongest,  bravest  and  most  eloquent  representatives  of  the  South.  It  was  written  to 
a  member  of  the  Constitutional  Convention  of  this  State,  in  reference  to  a  provision 
similar  to  that  which  I  am  considering. 


DEBxiTES  OF  THE  CONSTITUTIOJ^AL  COJfVEKTION  OF.  VIRGINIA. 


3149 


Dear  Captam  Wise:  The  American  Revolution  was  not  so  much  a  redress  of' 
grievances  as  it  was  a  struggle  to  abolish  heredity  in  government.  That  was  the  real 
line  of  division  between  Democratic  and  regal  government  and  the  Church  established 
by  law.  Heredity  disappeared,  with  its  associated  rights  of  perpetuity  in  the  owner- 
ship of  lands,  and  many  minor  hereditaments  of  feudalism,  such  as  titles  and  tenures 
and  servitudes,  when  our  new  Democratic  scheme  of  government  was  instituted. 

Political  heredity,  and  all  its  appurtenances,  such  as  prerogative  and  titular  no- 
bility and  primogeniture,  and  all  its  protecting  lav'S,  such  as  corruption  of  blood,  pre- 
munire  and  excommunication,  perished  and  were  placed  under  the  heel  of  prohibition 
by  our  Constitution.  Whoever  would  restore  any  of  these,  to  that  extent  discredits 
the  cause  of  the  Revolution. 

Without  suffrage  the  new  system  had  no  possible  means  of  expressing  the  sov- 
ereign will  of  the  people  in  laws  and  their  enforcement  by  executive  and  judicial 
authority. 

These  necessary  agents  of  the  government  by  and  for  the  people  can  only  be 
chosen  by  voters;  and  voters  could  only  be  created  by  law,  not  by  inheritance.  These 
voters  are  chosen  representa^tives  to  perform  the  single  function  of  electing  the  lawful 
officers  of  government.  The  trust  confided  in  them  is  personal,  and  can  neither  be 
sold  nor  delegated,  transmitted  by  inheritance  or  by  will  to  any  other  person.  It  is 
this  quality  of  non  transmissibility  that  distinguishes  it  from  the  regal  form  of  inher- 
itable power  and  marks  the  line  of  the  impassable  gulf  between  regal  government 
and  democratic  government:  The  voters,  as  a  class,  or  body,  have  certain  physical 
conditions,  such  as  age  and  sex,  that  are  necessary  qualifications  and  certain  moral  and 
political  qualifications  that  are  personal  and  independent  of  inheritable  blood. 

To  make  blood  the  medium  of  transmitting  the  electoral  power  from  father  to 
son  is  to  uproot  from  its  foundations  the  whole  system  of  Democratic  government 
and  to  reinstate  the  system  and  the  form  of  regal  government. 

The  Fourteenth  and  Fifteenth  Amendments  have  no  more  to  do  with  this  subject 
than  any  other  part  of  the  organic  law. 

The  transmission  of  the  electoral  power  by  the  blood  of  inheritance  from  father 
to  son  would  destroy  all  distinction  between  regal  governm.ent  and  Democracy,  and 
would  throw  the  door  wide  open  for  a  return  to  the  system  that  the  American  Revolu- 
tion abolished.  The  steps  would  be  few  and  would  be  rapidly  taken,  to  the  complete 
restoration  of  monarchy,  so  soon  as  we  give  to  any  class  of  voters  the  power  to  qualify 
their  sons  as  voters  by  inheritance.  In  this  case,  it  is  the  first  step  that  tells  with 
fatal  and  irrevocable  effect.  The  argument  is  irresistable,  that  offices  should  follow 
the  blood  if  the  power  that  creates  them  is  the  blood  of  inheritance;  and  this  is  all 
that  is  meant  in  the  British  system  of  titled  nobility  which  alone  legislation  in  the 
House  of  Lords  and  of  regal  blood  and  prerogative  which  upholds  the  throne,  and  the 
power  of  appointment  to  office,  which  is  an  appanage  of  the  throne,  and  the  pardon- 
ing power  over  which  the  people  have  no  control.  *  *  * 

When  such  a  titled  class  of  voters  is  created  by  the  organic  law  it  will  soon  occur 
to  them  that  no  other  class  should  be  allowed  to  vote,  and  they  will  usurp  all  power. 
It  is  far  from  being  a  comfort  to  me  that  some  negroes  are  included,  and  many  white 
men  are  left  out.  by  the  ordinance  reported  by  the  majority  of  the  Committee  on  Suf- 
frage in  this  ordinance  of  inheritable  blood. 

With  great  respect,  JOHN  T.  MORGAN. 

Warm  Springs,  Va.,  July  6. 

Mr.  Glass:  May  I  interrupt  my  friend  right  there  to  ask  a  question?  Is  it  not  a 
fact  that  notwithstanding  that  letter  from  Senator  Morgan,  the  Alabama  Constitutional 
Convention,  with  great  unanimity,  rejected  his  advice  and  adopted  this  clause? 

Mr.  Wise:  Conventions  very  frequently  do  such  foolish  things.  It  is  true  that 
the  Alabama  Convention  adopted  this  clause.  I  do  not  know  by  what  majority  it  was 
done,  but  do  know  that  four  of  its  ablest  members  denounced  it  as  un-Democratic,  un- 
Republican  and  un-American,  as  their  gifted  senator  had  done.  I  had  the  honor  to 
serve  with  one  of  them  on  the  floor  of  the  House  of  Representatives  in  Washing- 
ton, and  he  was  afterwards  the  Governor  of  Alabama.  He  wears  an  empty  sleeve  as 
the  result  of  his  devotion  to  the  South,  the  Hon.  William  C.  Oates.  I  will  briefly  quote 
the  language  of  the  protest  of  the  four  gentlemen  to  whom  I  allude: 

It  (the  clause  in  question)  establishing  a  permanent  hereditary  governing  class, 
which  is  un-Democratic,  un-Republlcan  and  un-American.  It  is  not  in  keeping  with 
the  dignity  of  a  progressive,  just  and  enlightened  State.    It  insults — I  ask  the  special 


3150  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

attention  of  the  able  and  eloquent  gentleman  from  Lynchburg  to  this — it  insults  the 
v.^hite  men  of  Alabama  and  proclaims  their  inferiority  to  the  negro,  by  requiring  of 
them  as  suffragists  a  lower  standard  of  capacity  and  intelligence  than  that  required 
of  the  negro.    It  is  impracticable  of  administration. 

Mr.  Glass:  Just  there  I  would  say  to  my  friend,  that  the  white  men  of  Alabama 
went  to  the  polls — those  white  men  who  were  insulted — and  endorsed  that  very  clause. 

Mr.  Wise:  Oh!  yes,  sir;  but  it  has  not  yet  been  under  the  inspection  of  the  Su- 
preme Court  of  the  United  States.  The  question  as  to  the  validity  of  a  provision  in 
the  organic  law  cannot  be  determined  by  a  popular  election.  "It  is  impracticable  of  ad- 
ministration, owing  to  the  impossibility  of  tracing  with  any  certainty  descent  from 
remote  ancestors." 

But  I  have  another  serious  objection  to  the  understanding  clause  contained  in  the 
minority  plan.  It  gives  to  the  registrars  the  right  to  select  the  section  of  the  Constitu- 
tion, of  which  the  applicant  for  registration  must  be  able  to  give  a  reasonable  explana- 
tion. 

Mr.  Glass:  Does  not  the  understanding  clause  of  the  majority  plan  give  absolutely 
to  the  Board  of  Registration  the  right  to  decide  the  duties  of  what  office  shall  be  de- 
fined? 

Mr.  Wise:  I  will  say  to  my  friend  that  it  does,  and  I  expected  that  that  question 
would  be  asked.  But  permit  me  right  here  to  say  that  when  I  signed  the  majority  re- 
port, I  announced  that  I  did  not  approve  of  that  clause  as  it  stands,  and  reserved  the 
right  to  offer  an  amendment  at  the  proper  time.  Before  concluding,  I  propose  to  say 
more  in  answer  to  the  question  propounded  by  my  friend,  but  prefer  to  finish  what 
1  have  to  say  concerning  the  understanding  clause  contained  in  the  minority  plan. 

It  clothes  the  registrar  with  the  absolute  power  to  determine  what  clause  of  the 
Constitution  shall  be  submitted  to  the  applicant  for  registration.  Let  us  take  an  illus- 
tration— not  a  negro — discard,  if  you  please,  the  negro  from  your  minds.  Suppose  that 
in  the  midst  of  political  excitement,  when  passion  runs  high  and  partisan  zeal  is  with- 
out proper  restraint,  a  white  man  should  apply  to  the  registrar  tO'  have  his  name  put 
upon  the  rolls.  The  registrar  could  submit  to  him — it  is  absolutely  within  his  power, 
under  the  provisions  of  this  plan,  to  submit  to  him — a  clause  in  the  Constitution,  which 
the  most  learned  and  able  lav/yer  might  find  it  difficult  to  understand  and  give  a  rea- 
sonable explanation  thereof.  The  registrar  might  submit  to  an  unlettered  white  man, 
for  explanation,  a  clause  Avhich  the  judges  of  the  Supreme  Court  of  the  United  States, 
or  of  the  Court  of  Appeals  of  Virginia,  might  not  be  able  to  agree  upon.  It  will  not 
do  to  say  that  an  appeal  is  given  from  the  decision  of  the  registrar  to  the  circuit  judge, 
because  in  that  event  it  would  be  only  within  the  competence  of  the  judge  to  decide 
whether  he  had  given  a  satisfactory  explanation  of  the  clause  submitted  to  him. 

In  this  way,  gentlemen  of  the  conference,  not  only  the  negro,  but  the  white  men 
of  this  Commonwealth,  would  be  put  in  the  power  of  ignorant  and  depraved  registrars, 
so  that  one  applicant  for  registration  might  be  subjected  to  a  test  entirely  different 
from  that  to  which  another  might  be  required  to  conform.  The  doors  are  left  wide 
open  for  discrimination,  and  for  corruption  and  fraud.  It  is  true  that  these  require- 
ments as  to  registration  are  only  temporary,  but  all  persons,  properly  registered  under 
them,  are  to  remain  permanently  enrolled,  unless  subsequently  disqualified.  It  is  ad- 
mitted that  nearly,  if  not  quite,  all  the  white  citizens  of  the  State  v/ould  thus  be  made 
suffragists,  but  what  then  will  remain  for  our  protection  against  an  ignorant  negro  elec- 
torate? My  friend,  a  few  nights  ago,  made  a  beautiful  appeal  to  us  for  the  erection 
of  dykes  to  preserve  us  from  the  dark  floods  of  ignorance  and  vice,  but  those  dykes 
are  to  come  down  at  the  end  of  one  short  year.  What  provision  has  he  made  for  the 
safety  and  welfare  of  the  Commonwealth  after  they  shall  have  been  removed?  Why, 
gentlemen  of  the  conference,  after  January  1,  1903,  the  foregoing  requirements  as  to 
registration  are  to  be  void  and  no  longer  applied,  and  then  every  male  citizen  of  the 
United  States,  who  shall  have  acquired  residence  in  this  State,  as  hereinbefore  speci- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXIIOX  OF  TIEGIXIA. 


3151 


fied,  and  who  shall,  as  a  condition  precedent  to  registration  have  paid  a  poll-tax  of  one 
dollar  and  fifty  cents  ($1.50 J,  and  shall,  unless  physically  disqualified,  make  application 
for  registration  in  his  own  handwriting,  without  aid  or  suggestion  or  the  use  of  a  mem- 
orandum, in  accordance  with  a  prescribed  form,  is  to  be  enrolled  as  a  voter.  And 
every  person  thus  registered,  if  not  blind  or  otherwise  physically  disabled,  is  to  pre- 
pare and  deposit  his  own  ballot  without  aid  from  another. 

Nothing  will  then  remain  for  the  security  of  our  people,  except  the  conditions  that 
the  applicant  for  registration  shall  pay  a  small  poU-tax,  and  be  able  to  read  and  write, 
in  view  of  the  educational  facilities  furnished  by  the  State.  I  do  not  believe  that  the 
plan  will  accomplish  the  object  intended.  I  do  not  think  that  it  will  prove  to  be  effi- 
cient. When  you  come  to  reading  and  writing,  the  negro  is  almost,  if  not  quite,  as  apt 
as  the  white  man.  The  acauisiticn  of  the  ability  to  read  depends  principally  upon  the 
exercise  of  the  faculty  of  memory,  and  writing  is  purely  mechanical.  These  are  not  such 
fences  as  will,  in  my  opinion,  prove  efficacious. 

The  plan  of  the  majority  of  the  Committte  on  the  Elective  Franchise  contains  the 
same  requirements  as  to  citizenship,  age,  residence,  registration,  and  the  payment  to 
the  State  of  a  poll-tax  of  one  dollar  and  fifty  cents  (SI. 50)  for  the  preceding  year,  as 
the  qualifications  of  a  voter;  provided,  he  be  a  person  who  has  served  in  time  of  war 
in  the  army  or  navy  of  the  United  States,  or  of  the  Confederate  States,  or  of  any  State 
of  the  United  States;  or,  he  be  a  person  who,  or  whose  wife,  shall  have  paid  to  the 
Srate  taxes,  for  the  year  preceding  that  in  which  he  offers  to  vote,  amounting  to  as 
much  as  one  dollar  (S'l.OO)  on  property  ov\-ned  by,  and  assessed  against,  him  or  his 
wife;  or,  he  be  a  person  not  embraced  in  either  of  the  two  foregoing  alternatives,  who, 
when  he  offers  to  register,  shall  be  able  to  give  a  reasonable  explanation  of  the  general 
nature  of  the  duties  of  the  various  officers  for  whom  he  may,  at  any  time,  under  the 
laws  then  existing,  be  entitled  to  vote.  And.  provided  further,  that  the  provision  here- 
inbefore contained  as  to  the  payment  of  the  poll-tax,  as  a  prerequisite  to  voting,  shall 
not  apply  to  any  election  held  prior  to  the  first  day  of  January.  1903,  and  that  no  person 
who  has  served  in  time  of  v\-ar  in  the  army  or  navy  of  the  United  States,  or  of  the 
Confederate  States,  or  of  any  State  of  the  United  States,  shall,  at  any  time,  be  required 
to  pay  a  poll-tax  as  a  prerequisite  to  voting. 

These  two  last-mentioned  provisions  are  similar  to  those  contained  in  the  Glass 
plan.  I  think  that  the  committee  exercised  a  vvise  discretion  in  admitting  to  the  privi- 
lege of  suffrage  not  only  those  who  have  performed  conspicuous  public  service  in  time 
of  war,  but  also  those,  who,  or  whose  wives,  shall  have  paid  to  the  State  taxes  on  prop- 
erty owned  by,  and  assessed  against,  them  or  their  wives. 

Those  provisions  are,  in  my  judgment,  just  and  based  on  sound  principles.  All 
agree  that  the  soldiers,  who  have  fought  for  their  State  and  country,  ought  to  be  in- 
cluded in  the  electorate.  Our  fathers  placed  it,  as  a  fundamental  principle  in  their 
declaration  of  rights,  that  "all  men  having  sufficient  evidence  of  permanent  common 
interest  with,  and  attachment  to,  the  community,  ought  to  have  the  right  of  suffrage." 
and  the  people  of  Virginia  have  always  held,  that  they  have  furnished  sufficient  evi- 
dence of  permanent  and  substantial  identification  with  the  State,  vcho  participate  in 
the  public  burdens,  through  ownership  of  property,  subject  to  taxation.  Taxation  and 
representation  ought  to  go  together.  Senator  Daniel,  in  submitting  to  the  Convention 
the  report  of  the  minority,  for  which  the  plan  of  my  friend  from  Lynchburg  has  been 
accepted  as  a  substitute,  used  language,  which  I  will  quote  in  substantiation  of  this 
position,  but  before  doing  so  permit  me  to  express  the  deep  regret  I  feel  that  his  chair 
is  now  vacant;  that  our  distinguished  and  honored  senator  is  detained  at  home  by 
sickness,  and  thereby  we  are  deprived  of  his  wisdom  and  counsel.  I  shall  never  forget 
when  we  first  became  acquainted.  It  was  on  a  warm  and  bright  day  in  June,  some 
thirty  years  ago.  Two  young  fellows  were  marching  under  the  command  of  that  noble 
old  soldier,  Joseph  E.  Johnston,  from  Harper's  Ferry  to  Winchester,  the  beginning  oi 
the  movement  which  culminated  in  glorious  victory  on  the  plains  of  Manassas:  both 


3152 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


bearing  arms  upon  their  shoulders;  both  tired  and  weary,  and  covered  with  the  dust 
of  the  march. 

Our  eyes  were  brighter  then;  our  steps  more  elastic.  Thus,  Mr.  Chairman,  we  met 
by  accident,  and  formed  the  friendship  which  has  bound  us  together  thus  far  in  the 
journey  of  life,  and  will  continue  until  death. 

He  said  in  his  report  that  Jefferson  on  one  occasion  expressed  the  opinion  that 
"the  right  to  vote  should  be  given  to  those  who  pay  and  those  who  fight."  Both  the 
soldiers  and  the  tax-payers  are  represented  in  the  basis  of  suffrage  we  have  recom- 
mended. It  is  certain  that  under  these  two  provisions  a  very  large  proportion  of  our 
\^hite  citizens  would  be  enrolled  as  suffragists,  but  I  call  the  attention  of  the  confer- 
ence to  the  fact  that  the  hereditary  feature  is  absent;  that  the  privilege  is  not,  as  in 
the  substitute,  extended  to  the  descendants  of  soldiers.  But  we  do  not  confine  the 
right  to  vote  to  those  two  classes,  but  confer  it  also  upon  those  who  shall  be  able  to 
give  a  reasonable  explanation  of  the  general  nature  of  the  duties  of  the  various  offi- 
cers for  whom  they  may,  at  any  time,  under  the  laws  then  existing,  be  entitled  to 
vote.  In  the  basis  of  suffrage  proposed  by  the  majority  you  find  no  servile  imitation  of 
that  adopted  by  Mississippi  or  Alabama,  as  in  that  offered  as  a  substitute  by  the  hon- 
orable gentleman  from  Lynchburg.  I  do  not  wish  to  see  Virginia  trailing  in  the  rear 
of  other  States  of  the  Union.  She  was  foremost  in  proclaiming  the  fundamental  prin- 
ciples upon  which  government  ought  to  be  founded,  and  has  alvv^ays  marked  the  way 
v/liich  leads  to  the  safety,  welfare,  and  happiness  of  her  people. 

The  majority  plan,  in  my  judgment,  is  the  best  that  has  been  proposed,  and  I 
pause  to  make  the  acknowledgment,  that  the  honor  of  its  authorship  belongs  to  the 
very  able  and  eloquent  gentleman  from  Norfolk  city. 

Mr.  Thom:  Mr.  Chairman,  I  appreciate  most  highly  the  encomium  which  my 
friend  has  passed  upon  my  connection  with  this  majority  suffrage  plan,  and  while  my 
name  has  become  associated  with  it,  I  feel  that  it  is  but  just  for  me  to  say  that  I 
am  by  no  means  the  only  author  of  it,  but  that  the  other  members  of  the  committee  are 
entitled  to  the  same  credit,  if  there  is  credit,  that  I  am  entitled  to  for  it. 

Mr.  Wise:  Our  understanding  clause  requires  that  the  applicant  for  registration 
shall  be  able  to  give  a  reasonable  explanation  of  the  general  nature  of  the  duties  of  the 
officers,  for  whom  he  may,  at  any  time,  be  entitled  to  vote.  He  cannot  be  called  upon 
to  interpret  a  clause  of  the  Constitution,  which  the  highest  judicial  tribunal  of  the 
State,  or  nation,  might  find  difficulty  in  explaining,  as  provided  in  the  Glass  plan,  and 
we  give  him  an  appeal  from  the  decision  of  the  registrar  to  his  circuit  court. 

We  only  require  that  he  shall  possess  that  degree  of  intelligence  and  education 
which  will  enable  him  to  discharge  properly  the  duties  of  citizenship;  in  the  exer- 
cise of  the  elective  franchise. 

Mr.  Glass:  If  it  would  not  interrupt  my  ;tfriend  too  much,  I  would  like  to  ask 
him  to  address  his  remarks  for  a  little  while  to^  the  distinction  between  the  plan  of 
the  minority,  which  I  desire  to  take  occasion  to  say,  as  Mr.  Thom  did,  with  reference 
to  the  majority  plan,  is  not  my  plan;  it  has  the  best  features,  I  think,  of  all  the  other 
plans  combined,  to  this  distinction;  when  a  man  would  seek  to  be  registered  under 
the  minority  plan,  the  election  officer  would  be  required  to  submit  to  him  a  section  of 
the  Constitution  to  read.  Would  not  every  voter  in  Virginia,  who  seeks  to  be  regis- 
tered under  j^our  plan,  have  to  provide  himself  with  a  Code  of  Virginia,  and  a  copy 
of  the  Constitution  of  the  United  States? 

Mr.  Wise:  In  answer  to  a  former  question,  propounded  by  my  friend,  I  admitted 
that  the  understanding  clause  contained  in  the  majority  plan  gives  to  the  registrar 
the  right  to  require  that  the  applicant  for  registration  shall  define  the  duties  of  any 
officer  he  may,  at  any  time,  be  entitled  to  vote  for,  under  the  then  existing  laws.  As  it 
stands  at  present,  I  confess  that  it  is  subject  to  the  objection,  which  I  urged  against 
the  majority  plan,  that  the  registrar  is  clothed  with  the  power  to  make  it  easy  for  one 
man,  and  difficult  for  another,  to  become  enrolled.    I  then  indicated  that  I  would,  at 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3153 


the  proper  time,  offer  an  amendment,  which,  in  my  opinion,  if  adopted,  will  obviate 
that  objection,  and  make  it  an  educational,  instead  of  an  understanding  clause.  My 
proposed  amendment  is,  that  when  a  person  shall  offer  to  register,  if  not  embraced  in 
the  clause  relating  to  soldiers,  or  in  that  relating  to  tax-payers,  he  shall  be  able  to 
give  a  reasonable  explanation  of  the  duties  of  the  various  officers  for  whom  he  may  be 
entitled  to  vote  at  the  next  general  election  succeeding  the  date  of  his  registration. 

The  chief  distinction  between  the  two  plans  is  this,  that  of  the  majority  is 
not  marred  by  the  hereditary  feature  which  exists  in  that  of  the  minority,  by  which 
the  descendants  of  soldiers  are  exempted  from  submission  to  the  understanding  clause. 
That  our  understanding  clause  is  not  so  severe,  so  unreasonable,  and  so  drastic  as  that 
of  the  proposed  substitute,  and  if  amended,  as  suggested,  that  the  registrar  will  not 
have  the  povv^er  to  require  of  one  person  to  exhibit  a  different  degree  of  intelligence 
and  education  from  that  required  of  another.  But  the  chief  objection  to  the  plan  of 
my  friend,  as  already  pointed  out,  is  that  after  the  1st  of  Januarj^  1903,  there  will  be 
no  protection  for  our  people"  against  the  registration  of  ignorant  negroes,  except  the 
capitation  tax  and  their  ability  to  ma,ke  application  therefor  in  their  own  handwriting, 
and  to  prepare  their  ov/n  ballots.  Yv^e  provide  that  in  addition  to  those  requirements, 
they  shall  be  able  to  give  a  reasonable  explanation  of  the  duties  of  the  officers  they  may 
be  entitled  to  vote  for.  So  far  as  the  ability  to  read  and  write  is  concerned,  we  have 
little  advantage  over  the  negroes,  as  I  have  already  said,  but  when  you  caii  for  the 
exercise  of  that  degree  of  intelligence,  which  is  required  in  this  clause,  then  the  superi- 
ority of  the  Anglo-Saxon  becomes  at  once  apparent.  I  do  not  think  that  the  plan  of 
my  friend  is  efficient,  while  I  do  think  that  that  of  the  majority  will  secure  an  intelli- 
gent electorate,  and  will  preserve  us  from  those  dangers,  vrhich  have  caused  the  as- 
sembling of  this  Convention. 

But,  Mr.  Chairman,  I  v/ish  to  exhibit  to  my  friend  from  Lynchburg,  and  to  the  dele 
gates  from  the  v^-hite  counties  of  this  State,  by  reference  to  the  figures  furnished  by 
the  Census  Bureau  at  Washington,  what  is  the  true  condition  in  the  black  counties  of 
Virginia.  In  the  county  of  Brunswick  there  are  1,874  white  male  citizens  over  the  age 
of  twenty-one  years,  and  2,136  negroes;  the  male  negroes  under  the  age  of  twent>"-one 
years,  who  soon  will  make  application  for  the  right  of  suffrage,  aggregate  3,171;  the 
whites,  1,837.  In  the  county  of  Norfolk  there  are  5,492  v/hites  over  the  age  of  twenty- 
one  years,  and  8,432  negroes;  3,419  whites  under  the  age  of  twenty-one  years,  and 
7,607  negroes.  In  the  county  of  Northampton,  so  ably  represented  by  my  friend, 
Judge  Kendall,  the  Vvhite  males  over  tv;enty-one  years  of  age  exceed  the  negroes  by 
only  twenty-Dine  majority. 

Mr.  Glass:  Are  you  avv-are  of  the  fact  that  1,014  of  those  negroes  did  not  pay  their 
poll-tax  last  year. 

Mr.  Wise:  The  gentleman  will  find  a  large  number  of  the  white  men  delinquent 
also.  When  you  make  the  poll-tax  a  condition  precedent  to  the  right  to  vote,  my  experi- 
ence is  that  the  negro  will  pay  as  readily  as  the  white  man.  But  I  had  not  finished  the 
figures  with  reference  to  the  county  of  Northampton;  there  are  1,493  white  males  under 
the  age  of  twenty-one,  and  2,195  negroes.  There  are  twenty-five  counties,  one-fourth  of 
the  whole  number,  in  which  the  negroes  largely  predominate,  and  fifteen  or  twenty  in 
addition,  in  w^hich  they  constitute  nearly  half  of  the  population.  W^hen  you  take  into 
consideration  the  figures,  w^hich  show  how  the  two  races  will  stand,"  when  those  now 
under  twenty-one  years  of  age  shall  have  passed  that  mark,  you  will  discover  that 
there  are  at  least  fifty  of  the  counties  of  the  Commonwealth,  which  Vvill  soon  be 
dominated  by  the  African,  unless  something  shall  be  done  to  prevent  it.  Are  you  pre- 
pared for  it? 

Gentlemen  of  the  Valley  and  of  the  Southwest,  are  you  v/illing  that  your  brethren 
of  the  black  belt  shall  be  left  in  that  position?  I  appeal  to  you,  and  to  the  delegates 
from  the  Piedmont  and  trans-Alleghany  regions,  Vvith  all  the  earnestness  of  my  nature, 
to  save  us  from  that  affliction.    I  feel  sure  that  the  brave  men  who  followed  in  the  thick- 


3154 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


est  of  the  fight,  with  such  steadfast  devotion  and  courage,  the  proud  standards  of  Lee 
and  Jackson,  will  not  forsake  us  in  the  hour  of  our  trial. 

God  save  the  Commonwealth;  God  bless  Virginia,  our  mother. 

On  motion  of  Mr.  P.  W.  Campbell,  the  Convention  adjourned  until  Monday,  May 
2G,  1902,  at  12  o'clock  M. 


iVlONDAY,  May  26,  1802. 

The  Convention  met  at  12  o'clock  meridian. 
Prayer  by  Rev.  W.  P.  Dunaway,  D.  D. 

METHOD  OF  ADOPTING  CONSTITUTION. 

The  President:  The  unfinished  business  before  the  Convention  is  the  further  con- 
sideration of  the  resolution  offered  by  the  gentleman  from  Campbell  (Mr.  Daniel)  re- 
garding the  method  of  adopting  the  Constitution.  The  gentleman  from  Richmond  city 
(Mr.  Wise)  is  recognized. 

Mr.  Wise:  Mr.  President,  I  dislike  very  much  to  trespass,  even  for  a  moment, 
upon  the  attention  of  the  members  of  the  Convention.  I  know  that  all  are  anxious  to 
dispose  of  the  work  for  which  we  were  convened,  and  to  return  to  their  homes,  but 
in  my  judgment,  this  is  the  most  important  question  that  has  been  submitted  for  our 
decision,  and  our  action  in  reference  to  it  will  hereafter  be  quoted  as  a  precedent. 
When  the  gentleman  from  Prince  Edward  (Mr.  Mcllwaine)  the  other  day  announced 
that  everybody  had  made  up  his  mind  on  this  question,  except  the  gentleman  from  Rich- 
mond, he  was  laboring  under  a  mistake.  He  will  find  out  before  the  gentleman  from 
Fvichmond  concludes,  that  his  mind  is  as  fully  made  up  as  that  of  the  gentleman  from 
Prince  Edward.  It  is  true  that  he  had,  as  a  justification  for  that  remark,  the  statement 
that  T  made,  in  answer  to  the  delegate  from  Nansemond  (Mr.  Barnes),  that  I  was  not 
then  prepared  to  vote,  by  which  I  meant  that  I  desired  to  give  the  members  of  the 
Convention,  and  especially  my  own  constituents,  the  reasons  which  would  control  my 
action. 

It  has  been  from  the  beginning  an  axiom  of  the  American  people,  that  all  just  gov- 
ernment rests  in  the  consent  of  the  people,  and  I  hope,  Mr.  President,  that  the  mem- 
bers of  this  Convention  will  do  nothing  to  weaken  or  diminish  the  respect  in  v/hich  that 
fundamental  principle  has  always  been  held. 

Before  beginning  the  discussion  of  the  question  which  has  been  submitted  to  us 
by  the  resolution  offered  by  the  delegate  from  Cam.pbell,  I  wish  to  say  that  I  am  in 
favor  of  the  Constitution  framed  by  this  body,  and  that  if  it  shall  be  submitted  to  the 
people,  I  will  not  only  vote  for  its  adoption,  but  will  do  all  in  my  power  to  accomplish 
that  result.  I  believe,  Mr.  President,  that  ft  is  the  best  Constitution  ever  framed  for 
the  Commonwealth  of  "Vlirginia.  There  are,  it  is  true,  some  few  of  its  provisions  to 
which  I  am  opposed,  and  against  which  I  voted,  but,  taking  it  all  in  all,  I  think  that  it 
will  promote  the  happiness  and  best  interests  of  our  people.  I  make  this  statement 
because  I  desire  that  no  one  who  hears  me  shall  think  that  my  advocacy  for  submis- 
sion grows  out  of  any  opposition  in  my  heart,  or  in  my  mind,  to  the  instrument  we 
have  formed. 

Now,  the  first  question  I  shall  submit  to  you  is:  Whether  there  is  any  moral  obli- 
gation resting  upon  us,  to  constrain  us  to  reject  the  proposition  to  proclaim  this  Con- 
stitution, as  the  organic  law  of  Virginia,  and  to  give  my  answer  to  it.  I  must  recur 
to  the  facts.    What  are  they? 

On  the  5th  day  of  March,  1900,  an  act  v/as  passed  by  the  General  Assembly,  pro- 
viding for  submitting  to  the  qualified  voters  of  the  State,  at  an  election  to  be  held  on 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA.  3155 

the  fourth  Thursday  in  May,  1900,  the  question,  "Shall  there  be  a  convention  to  revise 
the  Constitution  and  amend  the  same?"  That  question,  and  that  only,  was  submitted 
to  the  electors.  The  act  was  silent  as  to  the  terms  upon  which  the  call  should  be 
made,  and  the  answer  of  the  suffragists  in  the  affirmative  can  be  interpreted  to  mean 
no  more  than  that  the  General  Assembly  might  convene  a  convention  for  the  purpose 
indicated.  It  certainly  cannot  be  so  extended  as  to  include  the  intent  of  an  abdication 
by  the  people  of  all  their  powers,  their  rights,  their  interests,  and  their  duty  to  each 
other  in  favor  of  a  body  of  mere  agents. 

But  prior  to  that  election,  the  Democratic  Convention,  representing  nearly  all  the 
white  citizens  of  this  State,  and  authorized  to  speak  for  them,  met  in  the  city  of  Nor- 
folk, and  there  made  the  solemn  pledge  that  the  Constitutional  Convention,  if  called, 
should  submit  its  work  for  ratification  or  rejection.  Some  gentlemen  upon  this  floor 
liave  endeavored  to  excuse  themselves  from  observance  of  that  pledge  by  the  state- 
ment that  the  Norfolk  Convention  was  not  called  for  that  purpose,  and  had  no  right 
to  bind  us  in  that  manner.  I  will  show  that  those  who  take  that  position  are  mis- 
taken. I  call  their  attention,  and  especially  that  of  my  colleagues  from  the  city  of 
Richmond  to  the  fact,  that  the  people  in  some  of  the  cities  and  counties,  when  as- 
sembled in  mass-meetings  to  choose  their  delegates  to  the  Norfolk  Convention,  both 
spoke  and  acted  upon  the  question  we  are  now  considering. 

Before  showing  that,  permit  me  to  allude  to  a  meeting  held  in  Richmond,  a  week 
ago,  called  by  some  of  the  newspapers,  whose  managers  seem  to  take  a  great  deal  of 
interest  in  this  subject.  It  was  not  the  result  of  a  spontaneous  movement  on  the  part 
of  the  people.  It  was  liberally  advertised,  and  the  announcement  was  made  that  there 
was  to  be  an  outpouring  of  the  masses  to  dem.and  proclamation,  and  to  relieve  the 
representatives  of  this  city  from  their  obligations  and  pledges.  Being  thus  heralded  in 
the  press,  I  expected  to  meet  there  a  large  gathering  of  my  constituents,  but  was  greeted 
by  empty  benches. 

Mr.  Meredith:  Is  the  gentleman  not  mistaken  as  to  facts?  Is  it  not  true  that 
there  was  no  call  made  by  any  newspaper  of  Richmond,  and  no  call  made  by  any  out- 
pouring of  the  people,  but  a  distinct  announcement  that  the  meeting  was  called  by  a 
single  Democratic  club  for  the  voters  of  the  ward  to  vote  on  the  question?  Is  not 
that  the  fact? 

Mr.  Wise:    You  may  be  right. 

Mr.  Meredith;    I  know  I  am,  so  I  call  your  attention  to  it. 

Mr.  Wise:  I  do  not  desire  that  there  shall  be  any  dispute  between  us  as  to  how 
it  was  called.  I  only  know  that  it  was  liberally  advertised,  and  that  every  induce- 
ment to  get  the  people  together  there  was  employed.  I  know  also,  that  the  effort  to 
assemble  a  mass-meeting  was  a  miserable  failure.  It  matters  not  how  it  was  called,  I 
here  assert,  without  the  fear  of  contradiction,  that  it  was  not  such  an  assemblage  as 
was  authorized  to  express  the  will  of  the  people,  whom  I  have  the  honor  to  represent. 
There  were  only  fifty-five  citizens  in  that  meeting — I  counted  them.  Of  the  fifty-five, 
at  least  twenty  belonged  to  other  wards,  and  some  were  Republicans,  who  were  told 
that  they  could  not  vote.  When  I  departed  ten  of  them  went  with  me.  I  do  not 
mean  to  say  that  I  left  as  a  rebuke,  but  having  given,  as  requested,  an  explanation  of 
the  suffrage  clause  of  the  proposed  Constitution,  and  seen  all  that  I  cared  to  see,  I 
concluded  that  it  was  not  necessary  for  me  to  remain  longer.  It  was  late  at  night,  and 
I  was  satisfied  to  await  the  glad  tidings  of  proclamation,  which  I  knev/  would  appear 
in  the  morning  papers. 

I  am  told  by  a  gentleman  who  remained  that  fourteen  persons  attempted  to  repre- 
sent the  Democrats  of  Clay  Ward.  But,  gentlemen,  I  have  only  alluded  to  the  meet- 
ing in  order  to  make  it  plain  that  there  has  been  no  such  expression  of  sentiment 
in  Richmond  as  I  feel  should  control  my  action  here.  But  the  gentleman  who  inter- 
rupted me  a  moment  ago  told  the  Convention  that  it  was  a  proceeding  by  a  single  club, 
to  give  the  Democrats  of  the  banner  ward  of  Richmond  an  opportunity  to  express  their 


3156  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

opinions  and  sentiments.  I  hold  in  my  hand,  and  will  read  to  him,  the  resolutions  of 
the  active  and  energetic  Democrats  of  that  ward,  passed  before  the  assembling  of  the 
Norfolk  Convention,  before  the  calling  of  a  Constitutional  Convention  was  made  a 
party  question,  and  before  the  pledge  to  submit  the  result  of  our  deliberations  was 
given.  They  were  drawn  by  a  distinguished  representative  of  Richmond  in  the  Gen- 
eral Assembly,  and  I  see  that  he  is  present.  He  is  a  Democrat  without  a  spot  on  his 
record.    The  Honorable  George  Wayne  Anderson  offered  them,  and  they  were  adopted: 

Resolved,  by  the  Democrats  of  Clay  Ward,  in  mass-meeting  assembled,  That  the 
Underwood  Constitution,  framed  by  aliens  and  enemies  of  the  Commonwealth  at  a 
time  when  Virginians  were  either  almost  or  altogether  excluded  from  the  exercise  of 
the  rights  of  freedmen,  is  inadequate  to  the  requirements  of  the  present  social  and  poli- 
tical life,  and  should  be  revised. 

Resolved,  further.  That  to  that  end  the  Democracy  of  Clay  Ward  favors  a  Con- 
stitutional Convention,  to  be  composed  of  Virginians  chosen  by  their  fellow  citizens  to 
revise  our  organic  law  in  the  fear  of  God  and  for  the  benefit  of  posterity. 

Resolved,  further,  That  the  delegates  to  the  Democratic  State  Convention,  to  be 
held  at  Norfolk,  chosen  by  this  meeting  be,  and  they  are  hereby  directed  to  vote  and 
use  their  influence  in  favor  of  making  the  question  of  holding  a  Constitutional  Conven- 
tion a  party  question  in  accordance  with  the  earnest  recommendation  of  the  joint  cau- 
cus of  the  Democratic  members  of  the  General  Assembly. 

They  are  also  instructed  to  vote  and  to  urge  that  the  convention  at  Norfolk  shall 
bind  the  party  by  formal  resolution  to  submit  the  Constitution  created  by  the  Conven- 
tion, should  one  be  held,  to  the  good  people  of  this  Commonwealth  for  ratification  or 
rejection  in  accordance  with  immemorial  usage. 

So  it  seems,  that  the  proceedings  at  Norfolk  were  taken  in  obedience  to  the  will 
of  these  people,  fully  and  clearly  expressed,  before  the  delegates  to  that  Convention 
were  elected  and  in  compliance  with  the  earnest  recommendation  of  the  joint  caucus 
of  the  Democratic  members  of  the  General  Assembly.  Who  here  will  rise  in  his  seat, 
and  declare,  in  view  of  these  facts,  that  v^'hen  the  people  voted  for  the  call  of  a  Con- 
stitutional Convention,  they  did  not  do  so  with  the  understanding  that  the  Constitution 
to  be  formed  by  us  v/as  to  be  submitted  to  them  for  ratification  or  rejection? 

Mr.  President,  with  such  facts  staring  us  in  the  face,  have  we  the  moral  right  to 
adopt  the  resolution  in  favor  of  proclamation?  Can  we  justly  make  the  claim  that  we 
are  clothed  with  the  power  to  do  so?  When  this  question  was  first  debated,  in  the  be- 
ginning of  our  sessions  here,  I  understood  the  distinguished  gentleman  from  Peters- 
burg— I  hope  that  he  is  in  his  seat — to  say  that  the  Convention  was  sovereign.  Will 
that  gentleman,  or  any  other,  tell  me  when  and  by  whom  were  we  invested  with  sov- 
ereignty. A  convention  must  derive  its  power  from  the  people.  As  I  have  already 
said,  it  is  an  axiom,  written  in  your  bill  of  rights,  that  the  people  are  the  source  of 
all  power,  and  that  their  government  cannot  be  reformed,  altered,  or  abolished  with- 
out their  consent.  Where  (I  ask  for  information;  gentlemen)  is  the  act  which  conferred 
upon  you  sovereign  power? 

Speaking  for  myself  alone,  and  declaring  it  as  my  sincere  wish  that  my  language 
shall  not  be  construed  as  involving  censure  of  any  member  upon  this  floor,  I  feel 
that,  in  view  of  all  the  surrounding  facts  and  circumstances,  I  should  be  guilty  of  an 
act  of  perfidy  and  treachery,  if  I  voted  for  proclamation.  That  is  my  feeling,  and  I 
will  not  do  it.  I  believe  that  a  moral  obligation  rests  upon  me  to  keep  the  pledges 
made  when  I  was  a  candidate,  and  in  pursuing  that  course,  and  clinging  to  that  de- 
termination, I  am  actuated  only  by  the  desire  to  advance  the  interests  of  my  people, 
and  to  preserve  their  rights  and  liberties. 

After  a  large  majority  of  the  qualified  electors  of  the  State  had  voted  in  favor  of  a 
Constitutional  Convention,  and  after  positive  declarations  had  been  made  by  the  people 
or  their  authorized  agents  on  the  question,  that  its  action  should  not  be  definitive,  the 
General  Assembly,  representing  the  people  of  this  Commonv^ealth,  passed,  on  February 
IG,  1901,  the  act  to  provide  for  the  election  of  delegates  to  this  Convention,  for  its  or- 


DEBATES  OF  THE  COJs^STITUTIOJs'AL  COI^VENTIOX,  OF  VIRGINIA.  3157 

.ganization,  and  for  submission  of  the  revised  and  amended  Constitution,  should  one  be 
agreed  upon,  to  the  qualified  voters  of  Virginia,  for  ratification  or  rejection. 

Had  the  Legislature  the  right  to  pass  that  act?  If  its  members  did  not  exceed  the 
scope  of  their  authority  and  jurisdiction,  then  we  are  at  the  end  of  the  argument,  and 
JIG  one  will  dare  say  that  he  is  not  bound  to  obey  the  mandate  contained  in  the  act 
under  which  we  are  sitting. 

I  unhesitatingly  give  it  as  my  opinion  that  the  General  Assembly  had  not  only 
the  right,  but  that  it  was  its  duty,  to  prescribe  such  restrictions  as  were  placed  upon 
us.  The  popular  will  had,  as  I  have  said,  been  fully  and  distinctly  manifested,  and  in 
requiring  submission  the  Legislature  followed  the  precedents  in  this  and  a  large  ma- 
jority of  the  other  States  of  our  Union.  There  is  not  a  man  in  this  Commonwealth, 
who,  when  he  voted  that  a  Convention  should  be  called  to  revise  and  amend  the  exist- 
ing Constitution,  did  not  do  so  with  the  understanding  that  our  work  was  to  be  sub- 
mitted for  adoption  or  rejection,  I  voted  for  a  Convention  with  that  distinct  under- 
standing, but,  so  help  me  God,  I  would  never  have  given  my  consent  if  I  had  believed 
that  you  would  undertake  to  impose  upon  the  people  of  this  State  a  Constitution  with- 
out regard  to  their  wishes.  I\o  man  is  more  anxious  than  I  that  the  work  of  the  Un- 
derwood Convention  shall  speedily  be  removed  from  sight,  but  so  long  as  I  live,  so 
long  as  I  revere  the  immortal  principles  embodied  in  the  bill  of  rights,  I  will  never 
■consent  that  any  body  of  men,  however  able,  pure  and  patriotic  they  may  be,  shall 
bo  invested  with  the  absolute  power  to  dictate  'the  organic  law  for  this  State.  That 
power  must  be  clearly  conferred.  The  sacred  fire  from  the  altar  of  the  people's 
authority  cannot  be  snatched  by  unhallowed  hands. 

Before  citing  judicial  authority  in  support  of  my  contention  that  the  legislative 
department  of  our  government  had  the  right  to  impose  such  restrictions,  as  are  con- 
tained in  the  act  by  which  we  were  convened,  I  remind  you  that  no  constitutional  con- 
vention ever  held  in  this  State  was  clothed  with  the  power  to  proclaim  the  Constitution 
framed  by  it.  It  will  be  conceded  that  the  Convention  of  1776  was  a  revolutionary 
body,  and  sat  in  defiance  of  the  then  existing  government,  while  we  are  proceeding 
under  the  law  by  which  we  were  originated  and  the  powers  of  the  people  conveyed  to 
us.  I  repeat  that  no  convention  hitherto  assembled  in  Virginia,  in  a  state  of  peace, 
was  authorized  to  act  definitely.  In  1828  the  General  Assembly  submitted  to  the  quali- 
fied voters  the  question  whether  a  Convention  should  be  called,  and  the  answer  being 
in  the  affirmative,  it  then  provided  for  the  election  of  delegates  to  that  Convention, 
and  the  submission  of  their  work  to  whomsoever  they  might  please  to  declare  qualified 
to  vote  for  m.embers  of  the  General  Assembly.  John  Randolph,  of  Roanoke,  denied 
the  right  of  the  Legislature  to  provide  that  the  amended  Constitution  adopted  by  that 
Convention  should  be  submitted  to  any  other  persons  than  those  qualified  to  vote 
under  the  then  existing  Constftution,  and  submitted  a  resolution  to  that  effect,  which 
was  defeated,  both  Chief  Justice  Marshall  and  James  Madison  voting  in  the  negative. 
He  did  not  make  the  claim  that  that  body  possessed  the  power  to  ordain,  nor  did  any 
one  of  its  members  assert  that  the  General  Assembly  had  not  the  authority  to  require 
submission  to  the  people  for  their  approval  or  disapproval.  Their  action  was  in  ac- 
cordance with  the  law  under  which  they  were  elected.  Substantially  the  same  course 
was  pursued  in  reference  to  the  Convention  held  in  1850.  Submission  was  required 
by  the  act  which  called  it  into  being,  and  they  obeyed  it. 

As  to  the  Underwood  Convention,  to  which  I  am  going  to  refer  directly,  it  was 
not  assembled  in  obedience  to  the  voice  of  our  people,  by  any  legislative  act  which 
had  their  sanction.  It  received  its  authority,  if  any  it  had,  from  the  Congress  of  the 
United  States. 

In  Wells  vs.  Bain,  75th  Penn.  St.,  p.  39,  you  will  find  the  doctrine  I  am  contending 
for  clearly  enunciated  by  the  Supreme  Court  of  that  great  State,  in  the  following 
words: 

It  is  not  pretended  that  the  late  Convention  (in  Pennsylvania),  sat  as  a  Revolu- 


S158 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


tionary  body,  or  in  defiance  of  the  existing  government,  and  it  did  not  proceed  in  the 
mode  provided  for  amendment  in  the  Constitution,  that  being  a  legislative  proceeding, 
only.    It  was,  therefore,  the  offspring  of  law.    It  had  no  other  source  of  existence. 

This  Convention,  like  that  in  Pennsylvania,  is  the  offspring  of  law,  and  has  no 
other  source  of  existence.  By  the  law,  the  breath  of  life  was  breathed  into  its  nos- 
trils. The  will  of  our  people  has  been  expressed  in  no  other  form,  and  our  powers  as 
delegates,  therefore,  come  in  no  other  wise. 

The  people  having  adopted  a  proceeding  by  law  as  the  means  of  executing  their 
will,  having  acted  under  it  and  chosen  their  delegates  by  virtue  of  its  authority,  sub- 
mitted themselves  to  it,  as  their  own  selected  and  approved  means  of  carrying  out 
peacefully  their  purpose  of  amendment.  *  *  *  it  will  not  do  to  assert  that  the  whole 
original  power  of  the  people  was  conferred  by  the  election.  This  election  itself  was 
a  part  of  the  instrumental  process  of  the  law,  the  means  provided  by  this  very  law, 
of  selecting  the  delegates.  This  law  was  the  warrant  for  their  election,  and  expressed 
the  very  terms  chosen  and  adopted  by  the  people  under  which  they  delegated  their 
power  to  these  agents. 

These  words  describe  the  situation  in  Virginia.  You  were  selected  as  delegates, 
and  are  sitting  here  and  acting,  under  a  statute,  which  is  your  letter  of  attorney  from 
the  people  themselves. 

No!  Gentlemen,  it  will  not  do  for  you  to  make  the  claim,  that  the  whole  original 
power  of  the  people  was  conferred  by  your  election  to  this  Constitutional  Convention. 
T  denounce,  as  false  and  dangerous,  the  doctrine  that  you  are  invested  with  sovereign 
power.  But  in  another  clause  of  this  able  opinion,  delivered  by  Judge  Agnew,  of  the 
supreme  bench  of  Pennsylvania,  a  man  of  the  highest  character,  and  a  jurist  of  pro- 
found learning,  honored  and  revered  by  all  his  people,  and  whose  decisions  are  recog- 
nized as  sound  everywhere  in  the  American  Union,  the  declarations  are  even  more 
distinct  and  pointed. 

It  follows,  therefore,  that  in  a  state  of  peace,  a  law  is  the  only  means  by  which 
the  will  of  the  whole  people  can  be  collected  in  an  authorized  form,  and  the  powers 
of  the  people  can  be  delegated  to  the  agents  who  compose  the  convention. 

That  was  the  only  means  by  which  the  powers  of  the  people  could  have  been  con- 
veyed to  us,  and  they  w^re  so  conveyed. 

It  may  be  a  law  to  confer  general  authority  or  one  to  confer  special  authority.  It 
may  be  an  invitation  in  the  first  place,  as  was  the  act  of  1789,  under  which  the  Con- 
vention of  1790  was  convened,  and  an  authority  to  the  people  to  meet  in  primary  as- 
semblies to  select  delegates  and  confer  cn  them  unrestricted  powers;  or  it  may  be  a 
law  to  take  the  sense  of  the  people  on  the  question  of  calling  a  convention,  and  then 
a  law  to  make  the  call  and  confer  the  powers  the  people  iiitendi  to  confer  upon  their 
agents.  The  pov/er  to  pass  the  law  carries  with  it  of  necessity  that  to  frame  and  de- 
clare the  terms  of  the  law. 

The  power  of  our  General  Assembly  to  pass  the  law  which  convened  you  here,  car- 
ried with  it  of  necessity  the  power  to  prescribe  the  terms  under  which  you  should  act. 

But,  to  the  same  effect,  and  fuller  and  more  complete,  if  possible,  is  Jameson  on 
Constitutional  Conventions:  "That  a  Legislature  may  always  prescribe  .that  a  conven- 
tion shall  content  itself  with  proposing,  and  that  to  its  propositions  there  shall  be  com- 
municated the  force  of  law  only  by  the  fiat  of  the  people.  If  I  have  not  misconceived, 
then,  the  considerations  bearing  upon  the  question,  it  is  the  duty  of  conventions,  in  all 
cases,  not  even  excepting  that  in  which  they  are  authorized  to  act  definitely,  to  submit 
the  constitution  they  frame  to  the  people;  certainly  to  do  so  whenever  submission  is 
not  dispensed  with  by  the  constitution,  or  by  the  convention  act."  See  Jameson  on  Con- 
stitutional Conventions,  pages  495-'96. 

This  idea  prevades  the  whole  American  political  system,  that  those,  through  whom 
the  people  act,  are  under  the  solemn  obligation  to  obey  their  will,  and  to  keep  them- 


DEBATES  OE  THE  COXSTITETIOXAL  COXYEXTIOX  OF  TIEGIXIA. 


3159 


selves  constantly  in  a  condition  of  perfect  responsibility  to  them,  save  in  the  single  case 
where  a  discretion  has  been  in  terms  given. 

I  challenge  any  member,  vho  is  an  advocate  of  the  doctrine  of  proclamation,  I  chal- 
lenge any  one  of  you,  to  give  me  an  authority  in  support  of  your  position. 

Mr.  Kendall:  You  hold  that  the  Legislature  would  have  such  power  if  the  existing 
constitution  prescribes  to  the  contrary? 

Mr.  Wise:  I  am  glad  you  asked  that  question.  I  was  coming  to  that  in  a  moment. 
You,  it  seems,  depend  for  your  authority  not  upon  the  decisions  of  the  courts,  but  upon 
the  Underwood  Constitution.  I  will  come  to  that  directly.  I  will  endeavor  to  show  that 
it  does  not  prescribe  to  the  contrary.  I  am  glad  that  my  challenge  has  solicited  one 
answer.  I  asked  for  authority,  and  the  honorable  gentleman  from  Northumberland 
points  me  to  the  Underwood  Constitution.  Before  giving  my  answer,  I  will  quote  what 
Judge  Cooley  says  in  his  work  on  Constitutional  Limitations.  His  text  books  are  recog- 
nized as  of  the  highest  authority  in  all  the  courts,  both  State  and  Federal. 

In  accordance  with  universal  practice,  and  from  the  very  necessity  of  the  case, 
amendments  to  an  existing  constitution,  or  entire  revisions  of  it,  must  be  prepared 
and  matured  by  some  body  of  representatives  chosen  for  the  purpose.  *  *  * 

But  no  body  of  representatives,  unless  specially  clothed  with  power  for  that  pur- 
pose by  the  people  when  choosing  them,  can  rightfullj'  take  definitive  action  upon  amend- 
ments or  revisions;  they  must  submit  the  result  of  their  deliberations  to  the  people — 
who  alone  are  competent  to  exercise  the  powers  of  sovereignty  in  framing  the  funda- 
mental lavv — for  ratification  or  rejection.  Unless  you  can  show  that  the  power  was 
expressly  conferred,  says  this  distinguished  judge,  you  have  no  right  to  proclaim,  and 
are  bound  to  submit  the  result  of  your  deliberations  to  the  people  for  ratification  or  re- 
jection. So  far  from  the  power  having  been  conferred  upon  you,  to  proclaim  this  in- 
strument as  the  organic  law  of  this  Commonwealth,  you  are  expressly  forbidden  to 
do  so  in  the  act  of  your  creation. 

Judge  Cooley  also  said  in  his  work  on  "The  Principles  of  Constitutional  Law'"  that 
The  people,  having  adopted  a  proceeding  by  law  as  the  means  of  executing  their  will, 
haA'ing  acted  under  it  and  chosen  their  delegates  by  virtue  of  its  authority,  submitted 
themselves  to  it  as  their  ovrn  selected  and  approved  means  of  carrying  out  peacefully 
their  purpose  of  amendment.  The  delegates  elected  under  the  law  possess  no  inherent 
power,  and  when  convened  under  it,  they  act  under  the  law  as  their  letter  of  authority 
from  the  people  themselves. 

Now,  what  has  been  urged  in  opposition  to  these  positive  and  emphatic  declarations 
by  learned  judges  and  constitutional  lawyers?  My  honorable  friend  from  Northampton 
was  the  only  one  who  answered  the  question,  where  is  your  authorit^^?  None  of  the 
others  ansv-ered.    He  pointed  me  to  the  Underwood  Constitution. 

Gentlemen  are  hard-pressed,  indeed,  when  they  must  appeal  to  that  instrument  for 
their  vindication.  The  Congress  of  the  United  States  ordered  an  election  in  Virginia. 
Many  of  our  wisest  and  best  men  were  excluded  from  participation  in  it,  because  they 
had  been  guilty  of  rebellion.  Under  the  order  of  Congress,  the  Underwood  Convention 
vas  assembled  in  this  capital.  In  the  Convention  of  1829-'30,  John  jlarshall.  Chief- Jus- 
tice of  the  United  States,  and  Nicholas,  another  very  able  and  learned  man,  sat  as  the 
representatives  of  the  character  and  intelligence  of  the  citizens  of  Richmond.  When 
that  body,  to  whose  work  reference  has  been  made  hj  my  friend  from  Northampton, 
came  by  authority  of  Congress  to  dictate  the  law  to  freemen,  Louis  Lindsay  and  Joseph 
Cox,  two  ignorant  negroes,  who  could  not  write  their  names,  or  read  the  Lord's  Prayer, 
occupied  the  seats  of  Marshall  and  Nicholas.  It  was  a  sad  spectacle.  He  appeals  to 
the  instrument  framed  by  them,  as  settling  constitutional  questions  for  Virginia.  I  have 
little  or  no  respect.  I  want  him  to  know,  for  the  Underwood  Constitution.  It  does  not 
bind  me  much.  It  will  never  furnish  a  reason  for  my  action.  But  let  us  examine  it, 
and  see  if  it  confers  the  authority  for  proclamation.  In  the  second  section  of  the  12th 
article — which  I  believe  is  the  one  referred  to  by  my  friend,  and  if  I  am  wrong  I  hope 
h€  will  correct  me — 


3160 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Kendall:  I  do  not  remember  which  article  it  is.  It  is  the  last  article  of  the 
Constitution,  which  prescribed  that  the  Convention  shall  be  called  to  revise  the  Consti- 
tution and  amend  the  same. 

Mr.  Wise:  Well,  I  will  read  it,  and  then  if  I  am  wrong,  or  if  there  is  any  other 
section  to  which  you  wish  to  refer,  I  will  be  pleased  if  you  will  let  me  know: 

At  the  general  election  to  be  held  in  the  year  1888,  and  in  each  twentieth  year 
thereafter,  and  also  at  such  time  as  the  General  Assembly  may  by  law  provide,  the 
question,  "Shall  there  be  a  convention  to  revise  the  Constitution  and  amend  the  same?" 
shall  be  decided  by  the  electors  qualified  to  vote  for  members  of  the  General  Assembly. 

Is  that  the  section? 
Mr.  Kendall:    Yes,  sir, 

Mr.  Wise:    The  gentleman  says  I  am  right. 

Mr.  Kendall:  I  will  say  this  to  the  gentleman;  that  at  the  time  I  interrupted  him 
he  was  arguing  that  there  could  be  no  power  which  could  control  the  convention  except 
that  which  called  it  into  being,  to-wit,  the  Legislature  that  called  it  into  being;  and  he 
was  laying  that  down  as  a  universal  proposition.  I  then  called  his  attention  to  the  ques- 
tion whether  or  not  that  would  be  true  notwithstanding  the  provisions  of  any  existing 
Constitution. 

Mr.  Wise:  I  will  say  to  my  friend  that  if  I  used  the  language  he  imputes  to  me — 
which  I  will  not  now  deny — I  stated  it  more  broadly  than  I  intended,  and  will  take  the 
liberty  of  correcting  the  notes. 

Mr.  Kendall:    Very  well. 

Mr.  Wise:  My  contention  is  that  the  people  are  the  source  of  all  power,  and  that 
they  have  conferred  upon  us  only  the  right  to  propose  for  their  consideration  a  revised 
Constitution,  and  that  that  pov/er  was  conferred  by  the  law  which  called  us  into  being, 
and  that  we  are  bound  to  observe  and  obey  that  law. 

But  I  am  now  devoting  attention  to  that  section  in  the  Constitution,  to  which  you 
referred  me,  and  which  I  was  reading  when  interrupted. 

And  in  case  a  majority  of  the  electors  so  qualified,  voting  at  such  election,  shall 
decide  in  favor  of  a  convention  for  such  purpose,  the  General  Assembly,  at  its  next 
session,  shall  provide  by  law  for  the  election  of  delegates  to  such  convention. 

I  have  not  yet  read  the  whole  section,  and  I  ask  every  member  of  the  Convention 
to  give  me  his  attention.  I  asked  my  friend  from  Northampton  to  say  if  he  is  bound  by 
this  part  of  it: 

Provided,  that  uo  amendm^ent  or  revision  shall  be  made  which  shall  deny,  or  in 
any  way  impair,  the  right  of  suffrage  or  any  civil  or  political  right  as  conferred  by 
this  Constitution,  except  for  causes  which  apply  to  all  persons  and  classes  v/ithout  dis- 
tinction. 

If  that  clause  binds  us,  if  the  entire  section  which  I  have  read,  binds  us,  by  what 
authority  did  you  attempt,  or  did  this  convention  attempt,  to  change  the  suffrage  clause 
that  was  provided  by  the  Underwood  Constitution?  You  have  violated  the  very  section 
of  that  instrument  which  I  have  just  read,  in  the  adoption  of  the  suffrage  clause  in  the 
new  Constitution.  You  are  attempting  not  only  to  deny  to  a  part  of  the  electorate 
created  by  it  the  right  to  vote  on  the  question  of  ratification  or  rejection  of  your  propo- 
sitions, but  to  deny  to  them  the  right  to  vote  at  all,  now  or  at  any  time.  But  does  the 
section,  which  I  have  read,  and  which  simply  provides  that  at  stated  periods,  or  at  such 
times  as  the  Legislature  may  deem  proper,  the  question  shall  be  submitted  to  the  people, 
"  shall  there  be  a  convention  to  revise  the  Constitution  and  amend  the  same?"  confer 
upon  the  convention,  thus  originated,  the  power  to  act  definitely?  Does  it  take  away 
from  the  people  the  right  to  require  submission? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


3161 


That  convention  had  no  right  to  insert  in  the  organic  law  a  provision  that  the 
delegates  in  any  future  convention  should  have  the  power  to  ordain  or  decree;  that 
power  can  only  be  conferred  upon  said  delegates  by  the  sovereign  people  at  the  time 
of  their  selection.  I  deny  emphatically  that  Vv'e  can  reach  the  conclusion  that  the  sec- 
tion in  question  has  such  a  meaning,  except  a  juggle  of  vrords  to  cozen  the  people. 
Such  quirks  and .  quibbles  are  weak,  such  logic  is  vain  and  impotent.  But  where  in 
the  section  under  consideration  is  the  power  conferred  upon  you  to  refuse  to  submit 
your  propositions? 

Now,  I  will  call  you  attention  to  a  provision  in  another  article  in  the  Constitution, 
which  did  not  originate  with  that  Convention.  It  came  to  us  from  the  fathers  of  the 
republic,  and  was  proclaimed  by  the  noblest  and  best  representatives  of  Virginia  in 
her  past  history,  by  that  splendid  galaxy  of  patriots,  who  inaugurated  the  revolution, 
and  established  upon  the  North  American  Continent  free  government,  "that  when  any 
government  shall  be  found  inadequate  or  contrary  to  the  purposes  (before  specined)  a 
majority  of  the  community  hath  an  indubitable,  inalienable,  and  indefeasible  right  to 
reform,  alter,  or  abolish  it  in  such  manner  as  shall  be  judged  most  conducive  to  the 
public  weal."    In  such  manner  as  the  people  shall  deem  proper. 

I  here  to-day  reiterate  the  sentiment  of  that  Bill  of  E.ights,  which  was  proclaimed  by 
those  vrho  proclaimed  the  independence  of  America;  that  only  a  majority  of  our  com- 
munity or  State  have  a  right  to  alter,  abolish,  or  amend  the  Constitution.  The  Under- 
wood Convention  had  no  right  to  put  in  the  Constitution  of  Virginia  any  declaration 
in  conflict  with  that  provision  of  the  Bill  of  Rights,  a.nd  it  did  not  do  it.  If  you  want 
to  be  satisfied  that  the  intent  was  not  in  the  minds  of  its  members  to  disregard  that 
fundamental  principle,  that  the  fiat  of  the  people  is  necessary  to  give  validity  to  any 
alteration  or  amendment  of  the  organic  law,  you  have  only  to  read  the  first  section  of 
the  Article  XII.  of  our  Constitution,  where  it  is  provided  that  amendments  may  be 
proposed  in  the  General  Assembly,  and  if  the  same  shall  be  agreed  to  by  a  majority  of 
the  members  elected  to  each  of  the  two  houses,  such  proposed  amendments  shall  be 
entered  on  their  journals,  with  the  ayes  and  noes  taken  thereon,  and  referred  to  the 
General  Assembly  to  be  elected  at  the  next  general  election,  and  shall  be  published  for 
three  m.onths  previous  to  the  time  of  making  such  choice.  And  if  in  that  next  Gen- 
eral Assembly,  such  proposed  amendments  shall  be  agreed  to  as  before,  then  it  shall 
be  the  duty  of  the  General  A_ssembly  to  submit  such  proposed  amendments  to  the  people, 
and  if  the  people  shall  approve  and  ratify  them,  they  shall  become  a  part  of  the  Con- 
stitution. 

In  this  connection  I  will  recur  again  to  the  decision  of  the  Supreme  Court  of  Penn- 
sylvania, pronounced  by  Justice  Agnew,  where  he  declares  that  the  doctrine  that  govern- 
ment must  have  the  consent  of  the  people  "is  recognized  in  the  second  section  of  the 
Declaration  of  Rights  of  the  Constitution  of  Pennsylvania,  v/hich  affirms  that  the  people 
have  at  all  times  an  inalienable  and  an  indefeasible  right  to  alter,  reform,  or  abolish 
their  government  in  such  manner  as  they  think  proper."  The  language  of  this  declara- 
tion is  almost  the  same  as  that  in  which  ours  was  made. 

NoYv^  listen  to  his  interpretation  of  it. 

A  self-evident  corallary  is  that  an  existing  lawful  government  of  the  people  cannot 
be  altered  or  abolished  unless  by  the  consent  of  the  same  people,  and  this  consent  must 
be  legally  gathered  or  obtained. 

These  are  fundamental  propositions  that  the  Federal  Constitution  contains  a  grant 
of  power  to  the  Federal  government,  and  that  all  power  not  granted  is  reserved  to  the 
States  or  to  the  people;  that  prohibitions  contained  in  it  are  limitations  upon  The  gov- 
ernment created  by  it,  unless  expressly  made  applicable  to  the  States. 

The  State  constitutions  do  not  contain  grants  of  power  to  the  State,  but  they  are 
the  instruments  through  which  governmental  authority  is  apportioned  and  distributed, 
and  by  which  restraints  are  imposed  upon  governmental  action,  for  the  protection  of  in- 
199 — Const.  Deb. 


3162 


DEBATES  OF  TPIE  CONSTITUTIOJ^AL  CO^^VENTIOX  OF  VIRGINIA. 


dividuals  or  for  the  welfare  of  the  people.  And  the  legislative  department  is  pos- 
sessed of  all  legislative  power  not  prohibited  by  the  Constitution  expressly  or  implied, 
or  by  the  restrictions  contained  in  the  Federal  Constitution.  The  calling  of  a  Con- 
stitutional Convention,  and  the  imposing  of  the  requirement  that  its  acts  shall  only  be 
advisory,  is  clearly  a  legislative  power.  It  is  a  familiar  rule  of  construction,  that  the 
whole  instrument  must  be  examined,  to  determine  the  meaning  of  each  part.  You 
cannot  place  upon  one  section  such  a  construction  as  will  make  another  section  useless 
and  valueless.  The  whole  of  a  Constitution  must  be  read  and  so  construed  as  to  give 
effect  to  all  its  sections  and  clauses,  and  make  them  consistent  and  harmonious.  If 
this  rule  be  followed  in  construing  the  second  section  of  the  Article  XII|  of  the  Con- 
stitution of  Virginia,  no  such  meaning  can  be  given  to  it  as  has  been  attempted. 

In  those  dark  days  when  Virginia  was  governed  by  a  military  dictator,  surrounded 
by  armed  soldiers,  the  fundamental  principle,  that  the  people  shall  not  be  deprived  of 
the  inalienable  right  to  pass  upon  any  proposed  Constitution,  saved  a  large  number 
of  our  best  v/hite  citizens  from  disiranchisement,  and  the  whole  State  from  the  horror 
and  humiliation  of  negro  domination.  The  Congress  in  the  reconstruction  acts  violated 
the  Constitution  of  the  Union  in  all  its  sections  and  clauses,  and  sent  here  aliens  and 
enemies  to  make  our  organic  law,  but  paused  when  the  question  was  whether  it  should 
be  imposed  without  our  consent.  It  was  submitted  for  acceptance  or  rejection,  and 
its  disfranchising  clause  was  separately  submitted.  The  recollection  of  this  fact,  so  in- 
delibly impressed  upon  my  memory,  should  cause  you  to  pause,  and  hesitate  before  set- 
ting a  precedent  whi^h  in  the  future  may  rise  up  to  plague  you. 

Gentlemen,  I  have  much  to  my  own  inconvenience,  this  very  warm  day,  detained 
you  longer  than  I  intended.  I  feel  so  deeply  on  this  question,  I  am  so  anxious  tha": 
you  shall  nnake  no  mistake,  that  I  felt  it  to  be  my  duty  to  call  your  attention  to  this 
subject,  and  to  beg  you  not  to  commit  an  error. 

Have  you  read  the  last  clause  of  the  act  under  which  you  are  assembled?  What 
does  it  contain? 

But  if  said  Convention  shall  not  propose  a  revised  and  amended  Constitution  on  or 
before  the  5th  day  of  October,  1901,  it  shall  remain  for  the  next  General  Assembly 
to  enact  such  measures  as  it  may  deem  proper  for  submitting  the  said  revised  and 
amended  Constitution  to  the  people  of  this  Commonwealth  for  ratification  or  rejection. 

You  did  not  complete  your  labors  before  the  5th  day  of  October,  1901.  Under  the 
conditions  of  the  clause,  which  I  have  just  read,  the  Legislature  has  conferred  upon  the 
succeeding  General  Assembly  the  right  to  provide  such  measures  as  it  may  deem  to 
be  proper  for  submitting  your  revised  and  amended  Constitution  to  the  people  of  this 
Commonwealth  for  ratification  or  rejection. 

Suppose,  in  defiance  of  the  opinions  of  the  best  judges  in  America,  you.  undertake 
to  proclaim  this  instrument  as  the  organic  law  of  this  State.  When  next  winter  the 
representatives  of  the  people  of  this  Commonwealth  shall  meet  here,  suppose  they 
shall  declare  your  action  to  be  null  and  void! 

The  condition,  in  v/hich  we  shall  in  that  event  find  ourselves,  will  be  pitiable,  in- 
deed. Serious  conflicts  and  collisions  may  arise  out  of  it.  What  caused  the  trouble  in 
Pennsylvania?  What  brought  that  case,  from  which  I  have  quoted  so  liberally,  before 
the  Supreme  Court  of  that  Commonwealth?  The  Legislature  had  provided,  in  its  act 
convening  the  convention,  for  the  submission  of  the  result  of  its  labors  to  the  people. 
It  had  also  provided  the  day  on  which  the  election  should  be  held,  and  the  method  of 
holding  it.  The  Convention  undertook  by  an  ordinance  to  disregard  the  provisions  of 
the  act,  and  the  result  was  the  decision  of  the  Supreme  Court  of  Pennsylvania  that  the 
Legislature  had  not  exceeded  its  authority,  and  that  the  ordinance  of  the  Convention 
was  null  and  void. 

We  may  have  the  same  experience  in  Virginia,  and  we  will  have  it,  unless  our 
people  are  ready  and  willing  to  surrender  their  rights  and  liberties  to  the  keepmg  of 
this  Convention. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  YIEGIXIA. 


3163 


I  thank  you,  gentlemen,  for  your  courteous  attention.    (Great  applause.) 

:^.Ir.  Walker:    I  move  that  the  chair  be  vacated  until  4  o'clock  this  afternoon. 

The  motion  vs-as  agreed  to,  and  the  Convention  took  a  recess  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  met  at  the  expiration  of  the  recess. 

The  President:  The  regular  order  is  the  consideration  of  the  resolution  offered 
hy  the  gentleman  from  Campbell. 

■  :\Ir.  Bouldin:  Mr.  President  and  gentlemen  of  the  Convention,  the  county  v,-hich 
[  have  the  honor,  in  part,  to  represent,  has  not  seen  fit  to  give  an}*  instructions  to  its 
delegates  in  regard  to  the  important  question  vhich  is  novr  engaging  the  attention  of 
the  whole  State,  but  have  left  to  their  delegates  the  povrer  of  voting  as  they  deem 
btst  for  the  interests  of  the  State.  But  the  sentiment  of  that  people,  gathered  in  various 
vrays,  is  overwhelminglj'  in  favor  of  proclaiming  the  vork  of  this  body,  and  so  far  as 
T  am  concerned,  unless  some  difnculties  are  hereafter  presented  vhich  I  have  not  yet 
foreseen,  which  satisfy  me  that  this  body  has  not  the  power  to  proclaim,  I  shall  cast 
my  vote  in  favor  of  proclaiming  the  work  of  the  Convention.  I  believe,  sir,  that  it  is  the 
right  and  privilege  of  tne  people  of  the  respective  counties  and  cities  of  the  State  to 
have  our  work  submitted  or  proclaimed,  as  the:r  may  desire;  and  thus  believing,  I  shall 
so  vote  as  to  carry  out  the  will  of  my  people,  unless  I  shall  become  convinced  that 
the  good  of  the  Commonwealth  requires  that  this  instrument  which  we  have  nearly  com- 
pleted shall  receive  some  other  disposition. 

Mr.  President,  the  theory  of  our  political  system  that  the  people  are  the  source  and 
fountain  of  all  power,,  and  that  ultimate  sovereignty  rests  with  them  has  become  a 
maxim  of  universal  application  in  the  States  of  the  American  Union;  and  in  no  State  has 
that  doctrine  been  more  uniformly  accepted  and  acted  on  than  in  Virginia. 

While,  however,  this  is  theoretically  true,  it  is  also  true  that  as  a  practical  fact 
the  exercise  of  sovereignty  is  limited  to  those  who  are  clothed  with  the  right  of  suf- 
frage— the  voters  of  the  Commonwealth — who  alone  are  authorized  to  give  expression 
to  the  voice  of  the  people  as  a  body  politic. 

Assuming  the  soundness  of  these  political  axioms,  we  come  to  consider  the  ques- 
tion at  what  time  and  in  what  manner  and  under  what  conditions  can  the  people  as  a 
body  politic,  in  the  exercise  of  their  reserved  sovereign  power,  revise  their  constitu- 
tions and  amend  the  same — exercise  the  right  to  '"reform,  alter,  or  abolish"  their  form 
of  government,  which  the  Bill  of  Rights  declares  to  be  the  "indubitable,  inalienable,  and 
Indefeasible  right  of  a  majority  of  the  community.'' 

With  the  exception  of  the  right  of  revolution,  with  which  fortunately  we  need  give 
ourselves  no  concern,  there  are  but  tv-o  known  methods  whereby  the  whole  people — 
the  State — can  exercise  its  reserved  power  of  reviewing  and  amending  its  Constitution, 
of  reforming,  altering,  or  abolishing  its  form  of  government. 

These  methods  are: 

1st.  The  modes  of  amendment  prescribed  by  the  Constitution  sought  to  be 
amended,  which  are  exclusive  of  all  other  methods;  and, 

2nd.  In  the  absence  of  a  constitutional  provision  for  revision  and  amendment,  an 
act  of  the  General  Assembly,  v.-hich  in  that  event  would  alone  be  authorized  to  give 
expression  to  the  will  of  the  people  as  a  body  politic. 

This.  Mr.  President,  I  understand  to  be  the  limit  that  is  put  upon  the  power  of  the 
people  as  to  calling  conventions. 

:\Ir.  Thom:  Is  it,  in  your  opinion,  necessary  that  there  should  be  no  provision  in 
the  organic  law,  in  order  that  the  people  may  set  on  foot,  through  the  instrumentality 
of  a  statute,  a  method  of  amending  their  Constitution?  or,  in  other  words,  is  it  neces- 
sary that  the  Constitution  should  be  silent  in  order  that  they  may  proceed  otherwise? 


3164 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Bouldin:  I  think  that  the  weight  of  authority  is  that  when  the  Constitution 
provides  a  method  of  its  own  amendment,  or  revision,  that  method  is  an  exclusive  and 
not  a  cumulative  remedy,  and  in  that  event  it  must  be  the  controlling  and  only  mode 
of  peaceable  amendment.  If  the  Constitution  itself  is  silent  on  the  subject  of  amend- 
ment then  the  legislature,  being  the  body  representing  the  people,  the  only  body  legally 
authorized  to  speak  for  the  people,  can  call  a  convention.  I  trust  that  I  have  made 
myself  clear. 

Mr.  Thorn:  Yes,  sir;  I  merely  wanted  your  judgment  on  'that  point,  because  I 
think  it  is  an  interesting  one. 

Mr.  Bouldin:  That,  I  think,  is  perhaps,  one  of  the  pivotal  points  in  the  determina- 
tion of  this  matter,  and  let  me  here  say  that  in  my  judgment,  the  whole  question  now 
under  discussion  is  one  of  the  greatest  importance;  its  consideration  is  reduced  to  a 
narrow  compass;  although  it  is  the  most  important  question  we  have  been  called  upon 
to  consider,  yet  the  scope  of  our  investigation  is  necessarily  a  narrow  one. 

It  is  well  established  by  the  authorities  that  v/hen  the  Constitution  provides  its 
own  method  of  amendment,  that  method  must  be  strictly  pursued. 

In  the  celebrated  case  of  Luther  vs.  Borden  (7th  Howard,  1),  the  Supreme  Court  of 
the  United  States,  amongst  other  things,  decided  that  there  v/ere  but  three  methods 
of  amending  a  constitution,  saying  in  substance  that  "All  political  power  originated 
with  the  people;  but  the  voice  of  the  people  acting  in  their  sovereign  capacity,  can 
only  be  expressed  under  conditions  they  have  prescribed  in  their  constitutions,  or 
pointed  out  in  statutes  consistently  v/ith  the  Constitution,  or  by  revolution." 

That  is  the  announcement  of  the  highest  tribunal  of  the  land,  in  a  well  considered 
case  growing  out  of  Dorr's  rebellion  in  the  State  of  Rhode  Island,  and  the  principles 
announced  in  it  have  never  been  controverted  to  this  day. 

The  next  case  of  importance  in  which  this  subject  has  been  treated  by  the  courts 
arose  in  the  State  of  Massachusetts,  justly  considered  one  of  the  foremost  States  of  the 
Union  on  all  matters  pertaining  to  a  constitutional  government,  in  which  there  is  a 
bill  of  rights  almost  identical  with  our  own.  In  the  celebrated  case  of  the  "Opinion 
of  the  Justices"  (6th  Cushing,  575),  in  which  Chief  Justice  Shaw  delivered  the  judg- 
ment of  the  court,  the  doctrine  is  laid  down  that  when  the  constitution  prescribes  the 
mode  of  amendment,  it  is  the  only  method  of  peaceable  revision  and  amendment.  I 
read  from  the  syllabus  of  the  case: 

Under  and  pursuant  to  the  existing  Constitution,  there  is  no  authority  by  any 
reasonable  construction  or  necessary  implication,  by  which  any  specific  amendment  or 
amendments  of  the  Constitution  can  be  made,  in  any  other  manner  than  that  pre- 
scribed in'  the  9th  article  of  the  amendments  adopted  in  1820. 

If  the  Legislature  should  submit  to  the  people  the  expediency  of  calling  a  con- 
vention of  delegates,  for  the  purpose  of  revising  or  altering  the  Constitution  of  the 
Comm^onwealth,  in  any  specified  part  thereof,  the  people  should,  by  the  terms  of  their 
vote,  decide  to  call  a  convention  of  delegates  to  consider  the  expediency  of  so  alter- 
ing the  Constitution,  the  delegates  would  derive  their  whole  authority  and  commis- 
sion from  such  vote,  and  would  have  no  right,  under  the  same,  to  act  upon  and  pro- 
pose amendments  in  other  parts  of  the  Constitution  not  so  specified. 

Mr.  Harrison:  Is  it  not  a  fact  that,  in  spite  of  that  opinion,  a  Constitutional  Con- 
vention was  held  in  Massachusetts,  in  which  they  completely  ignored  that  decision, 
adopted  the  Constitution,  and  submitted  it  to  the  people  for  ratification  or  rejection? 

Mr.  Bouldin:  I  do  not  know  that  I  can  answer  that  question.  I  could  not  get  hold 
of  the  valuable  book  of  Jameson  which  has  been  so  much  in  demand,  and  which  I  be- 
lieve contains  a  suggestion  to  that  effect;  but  I  will  state  that  the  case  of  Wells  vs. 
Bain,  so  much  relied  on  by  my  friend  for  the  contrary  opinion,  was  utterly  ignored 
by  the  Convention  and  government  of  Pennsylvania,  and  ceased  to  be  operative  in  the 
State,  as  stated  in  the  case  of  Wood's  appeal.  I  am  inclined  to  think  the  gentleman 
has  that  case  in  mind  rafther  than  the  Massachusetts  case. 

Mr.  Harrison:    No,  sir;  I  am  thinking  about  the  Massachusetts  case. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA. 


3165 


Mr.  Eouldin:  In  the  Pennsyivania  case,  which  is  the  only  authority  of  high  re- 
spectability asserting  a  contrary  doctrine,  to  that  laid  down  by  Chief  Justice  Shaw,  the 
court  announced  the  doctrine  asserted  by  my  friend  from  Winchester;  but  in  the  very 
next  reported  case,  that  of  Wood's  appeal,  the  court  said,  speaking  by  Judge  Agnew, 
that  the  government,  having  adopted  the  Constitution,  the  question  in  Wells  vs.  Bain 
ceased  to  be  a  judicial  question,  and  the  court  could  have  nothing  to  do  with  it.  So 
that,  in  spite  of  the  decision  in  Wells  vs.  Bain,  the  Constitution  was  adopted. 

Mr.  Harrison:  I  think  you  are  mistaken  about  the  Pennsylvania  case.  What  hap- 
pened in  regard  to  that  case  was  this:  That  the  Legislature,  after  the  decision  of  the 
case,  gave  validity  to  the  Constitution,  recognized  it,  and  made  it  a  de  facto  government, 
jiist  as  was  done  in  Kentucky. 

Mr.  Bouldin:  I  think  I  have  stated  the  entire  history  of  the  doctrine  of  Wells  vs. 
Bain,  as  stated  by  Justice  Agnew. 

The  doctrine  that  the  voice  of  the  people  as  a  body  politic  must  be  expressed  in 
the  manner  prescribed  in  its  Constitution  vras  announced  in  Rhode  Island  when  the 
opinion  of  the  judges  of  that  State  was  asked  by  the  Convention. 

The  Constitution  provided  its  ovN-n  mode  of  correction,  and  the  court  held  that  no 
other  means  whatever  could  be  resorted  to  for  the  purpose  of  obtaining  an  expression 
of  the  will  of  the  people  as  to  revision  and  amendment.  The  court  held  that  the  ex- 
pression of  the  one  mode  of  amendment  was  the  exclusion  of  the  other,  and  cited  the 
opinion  of  Justice  Shaw  in  the  Massachusetts  case,  that  I  have  just  called  your  atten- 
tion to. 

The  announcement  of  this  doctrine  is  not  confined  to  the  States  of  Massachusetts 
and  Rhode  Island.  In  Nevada  the  same  doctrine  has  been  announced,  and  the  same 
reasoning  relied  on,  and  the  same  ruling  has  occurred  in  Iowa.  Indeed,  Mr.  Presi- 
dent, I  believe  that  you  v\-ill  search  the  books  in  vain  for  any  well-considered  decision 
in  which  it  is  held  that  a  Constitutional  Convention  for  revision  and  amendment  can 
be  called  in  any  other  way  than  that  provided  by  itself. 

The  cases  on  this  subject  are  few,  but  I  have  yet  to  find  any  in  which  it  has  been 
decided  that  any  other  peaceable  mode  of  calling  a  convention  for  revision  and  amend- 
ment can  be  resorted  to  when  the  Constitution  itself  prescribes  the  mode  of  ascer- 
taining the  popular  will  for  that  purpose. 

Jly  able  friend  from  Richmond  this  morning  objected  very  earnestly  to  any  pro- 
vision of  the  Underwood  Constitution  as  furnishing  a  rule  for  our  guidance  here,  and 
demands  higher  and  better  authority.  I  gave  him  the  authority  of  Judge  Cooley,  easily 
one  of  the  ablest  men  of  his  day,  and  an  acknowledged  authority  on  all  questions  of 
constitutional  law.    Hear  what  that  eminent  jurist  says  on  this  subject: 

In  the  original  States,  and  all  others  subsequently  admitted  to  the  Union,  the 
power  to  amend  or  revise  their  constitutions  resides  in  the  great  body  of  the  people 
as  an  organized  body  politic,  who  being  vested  with  ultimate  sovereignty,  and  the  source 
of  all  State  authority,  have  power  to  control  and  alter  at  will  the  law  which  they  have 
made.  But  the  people  in  the  legal  sense  must  be  understood  to  be  those  who,  by  the 
existing  Constitution,  are  clothed  with  political  rights,  and  who,  while  that  instrument 
remains,  will  be  the  sole  organs  through  which  the  will  of  the  body  politic  can  be 
expressed. 

But  the  will  of  the  people  to  this  end  can  only  be  expressed  in  the  legitimate  mode 
by  which  such  a  body  politic  can  act,  and  which  must  either  be  prescribed  by  the 
Constitution,  whose  revision  or  amendment  is  sought,  or  by  an  act  of  the  legislative 
department  of  the  State,  which  alone  would  be  authorized  to  speak  for  the  people 
upon  this  subject,  and  to  point  out  a  mode  for  the  expression  of  their  will  in  the  ab- 
sence of  any  provision  for  amendment  contained  in  the  Constitution  itself. 

Again,  on  page  747,  the  same  distinguished  author  says: 

Although,  by  their  constitutions,  the  people  have  delegated  the  exercise  of  sov- 
ereign power  to  the  several  departments,  they  have  not  thereby  divested  themselves 
of  the  sovereignty.    They  retain  in  their  own  hands,  so  far  as  they  have  thought  it 


3166 


DEBATES  OF  THE  COJTSTITUTIONAL  CONVENTrOK  OF  TIRGINIA. 


needful  to  do  so,  the  power  to  control  the  governments  they  create,  and  the  three  de- 
partments are  responsible  to  and  subject  to  be  ordered,  directed,  changed,  or  abolished 
by  them.  But  this  control  and  direction  must  be  exercised  in  the  legitimate  mode  pre- 
viously agreed  upon.  The  voice  of  the  people,  acting  in  their  sovereign  capacity,  can 
be  of  legal  force  only  when  expressed  at  the  times  and  under  the  conditions  which  they 
themselves  have  prescribed  and  pointed  out  by  the  Constitution,  or  v/hich,  consistently 
with  the  Constitution,  have  been  prescribed  and  pointed  out  to  them  by  statute. 

Now,  Mr.  President,  need  I  go  further  in  the  line  of  authority  for  the  position 
that  when  the  people  speak,  through  their  constitutions,  as  to  the  mode  of  amend- 
ment and  revision  that  mode  alone  can  be  resorted  to  in  the  exercise  of  peaceable  re- 
vision and  amendment?  I  assume  the  doctrine  on  this  subject  as  laid  down  by  Judge 
Ccoley  to  be  true  at  this  day,  and  that  this  Convention  called  pursuant  to  the  terms  of 
the  Constitution,  was  called  in  the  only  legal  manner. 

I  come  now  to  the  consideration  of  the  extent  of  the  powers  of  revision  and 
amendment  conferred  on  this  Convention,  and  especially  with  reference  to  their  power 
to  proclaim  the  Constitution. 

I  do  not  understand,  Mr.  President,  that  the  Convention  possesses,  of  itself,  inher- 
ent powers,  but  that  it  exercises  only  delegated  authority  in  the  nature  of  sovereign 
power.  I  state  this  position  with  diffidence,  for  I  am  aware  that  there  are  able  and 
distinguished  gentlemen  on  this  floor  who  hold  that  the  Convention  does  possess  in- 
herent powers  and  that  when  lawfully  assembled  it  is  "the  incorporate  representative 
-of  the  real  body  politic,  the  sovereign  people."  Such  are  the  views  held  by  that  emi- 
nent constitutional  lawyer  and  writer,  the  late  John  Randolph  Tucker,  who  was  uni- 
versally recognized  as  one  of  the  foremost  constitutional  lawyers  of  his  day. 

From  the  best  information,  however,  that  I  have  been  able  to  gather  from  the 
authorities,  I  believe  it  to  be  the  accepted  opinion  that  "the  Constitutional  Convention 
is  the  representative  of  sovereignty  only  in  a  very  qualified  sense,"  and  for  the  spe- 
cific purpose  for  which  it  is  called  by  the  people.  The  powers  of  the  Convention  are 
delegated  powers,  and  its  members  must  be  able  to  point  to  the  authority  under  which 
they  act,  their  letter  of  attorney  defining  their  powers. 

The  authority  given  to  this  Convention  by  the  sovereign  people  is  to  revise  the 
existing  Constitution  and  amend  the  same,  and  it  was  conferred  by  the  people  them- 
selves when  they  gave  their  affirmative  answer  to  the  question  "Shall  there  be  a  Con- 
vention to  revise  the  Constitution  and  amend  the  same,"  submitted  to  them  in  the 
manner  ordained  by  them  in  their  own  Constitution. 

What  are  the  scope  and  extent  of  the  powers  conferred  on  the  Convention  by  our 
commission,  our  letter  of  attorney  from  the  people?  In  my  judgment,  it  conveys  to 
us  all  the  power  of  the  State  for  the  specific  purpose  for  which  we  are  assembled.  It 
is  broad  enough  to  authorize  submission  to  the  present  electorate,  the  new  electorate, 
or  proclamation  of  the  Constitution,  the  result  of  our  work. 

The  power  of  the  people  to  confer  this  authority  in  advance  is  as  ample  and  com- 
plete as  their  power  of  ratification  of  the  work  when  finished.  The  important  consid- 
eration to  be  justly  determined  is  the  extent  of  the  powers  delegated,  and  it  is  immate- 
rial whether  those  powers  are  given  to  the  Convention  in  advance  of  its  work  or  trans- 
mitted by  ratification  of  the  Constitution  when  framed. 

Judge  Cooley,  in  speaking  of  the  universal  practice  growing  out  of  the  necessity 
of  the  case  of  some  body  of  representatives  chosen  for  the  purpose  framing  and  matur- 
ing amendments,  says: 

No  body  of  representatives,  unless  specially  called  for  that  P^^P°^^  P^^^" 
Pie  when  choosing  them,  can  rightfully  take  definitive  action  upon  amendments  or 
?evisTonTthey  muft  submit  the  result  of  their  deliberations  _  to  the  Pf^^ple-who  alo^ 
I^I  competent  to  exercise  the  powers  of  sovereignty  m  framing  the  fundamental  law 
for  ratification  or  rejection. 

But  if  they  are  specifically  clothed  with  the  power  of  revision  and  amendment  by 
the  people  in  choosing  them,  their  powers  can  only  be  limited  by  a  just  interpretation 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIRGIXIA. 


3167 


of  the  meaning  of  the  words  "revise  and  amend."  If  they  carry  with  them  the  idea  of 
enactment  also,  then  the  power  to  proclaim  is  as  thoroughly  established  as  the  duty  to 
submit  when  no  such  power  of  enactment  is  granted. 

Xovr,  sir,  what  are  the  powers  given  to  this  body  by  the  people  speaking  as  a  body 
politic  in  the  mode  authorized  by  their  Constitution? 

For  the  purpose  of  revision  and  amendment  the  General  Assembly  is  authorized  by 
the  Constitution  to  submit  to  the  people  this  question  and  no  other:  ''Shall  there  be  a 
Convention  to  revise  the  Constitution  and  to  amend  the  same?"  Xot  shall  there  be  a 
Convention  to  discuss  and  propose  amendments,  and  to  advise  the  same,  as  was  the 
case  in  the  call  of  the  Convention  of  1850-1S51:  Not  to  revise  and  amend  the  Consti- 
tution and  submit  the  same  to  the  qualified  voters  of  the  State,  but  the  mandate  is 
simply  to  submit  the  question,  "Shall  there  be  a  Convention  to  revise  the  Constitution 
and  to  amend  the  same?"  The  general  Assembly,  as  it  was  its  obvious  duty  to  do,  sub- 
mitted the  questions  to  the  people  as  prescribed  by  the  Constitution.  Is  it  possible 
to  take  from  the  meaning  of  the  words  '"revise"  and  "amend"  the  idea  of  "enactment"? 
The  accepted  meaning  of  the  word  revise  is  "to  look  at  again  for  detection  of  errors," 
to  "look  with  care  for  correction,"  to  "review,  alter,  and  amend,  as  to  review  statutes." 
The  word  "amend"  means  to  change  or  modify  in  any  way  for  the  better  as  by  simply 
removing  what  is  erroneous,  corrupt,  superfluous,  faulty,  and  the  like,  by  supplying  de- 
ficiencies, by  stibstituting  something  else  in  the  place  of  what  is  removed;  to  rectify. 

The  qtiestion  submitted  to  the  people  was  not  to  call  a  Convention  to  propose  revi- 
sion and  amendment,  but  to  make  it. 

The  Constitution  next  provides  the  duty  of  the  General  Assembly  In  case  the  elec- 
tors shall  decide  in  favor  of  calling  a  Convention.  It  requires  that  the  General  As- 
sembly shall  at  its  next  session  provide  by  law  for  the  election  of  delegates  to  such 
Convention.  The  mandate  of  the  Constitution  is  peremptory,  and  leaves  no  discretion- 
ary powers  in  the  General  Assembly;  that  body  can  neither  extend  nor  diminish  to  the 
peremptory  mandate  of  the  Constitution.  It  can  provide  for  the  assembling  of  the 
Convention  and  when  this  duty  is  discharged,  the  powers  of  the  General  Assembly  in 
this  particular  are  at  an  end.  The  Pennsylvania  doctrine  leaves  the  exercise  of  the 
power  of  calling  the  Convention  discretionary  with  the  General  Assembly;  the  Virginia 
Constitution  makes  it  mandatory  on  that  body  to  provide  by  law  for  the  meeting  of 
the  Convention. 

y^v.  Harrison:  Do  you  contend  that  the  Constitutional  Convention  of  IS 69  could 
confer  powers  upon  the  delegates  to  this  Convention? 

Mr.  Bouldin:  I  do  not,  sir.  I  answer  that  question  more  fully  by  adopting  the 
position  taken  by  Judge  Cooley,  by  Chief  Justice  Shaw,  by  the  Nevada  court,  by  the 
Iowa  court,  and  by  the  courts  in  almost  every  case  in  which  that  question  has  been 
presented,  that  when  a  Constitution  prescribes  the  mode  of  expressing  the  voice  of 
the  people  on  the  question  of  the  Convention  or  no  Convention,  that  method  is  the 
only  peaceable  mode  by  which  the  people  as  a  body  politic  can  lawfully  speak. 

I  contend  that  the  Constitution  has  prescribed  the  peaceable  mode  in  which  the 
great  voice  of  the  people  can  be  heard  to  call  into  being  a  Convention;  and  the  mo- 
ment that  that  Convention,  legally  called  by  the  people,  in  the  mode  prescribed  by  their 
organic  law,  assembles  and  organizes,  it  is  clothed  with  the  powers  of  the  whole  people, 
and  is  not  bound  by  anything  that  was  done  by  a  preceding  Convention.  That  is  my 
attitude  on  that  point.  I  do  not  contend  that  the  Convention  derives  any  power  from 
the  existing  Constitution;  its  power  comes  neither  from  the  Constitution  nor  the  Gen- 
eral Assembly,  but  from  the  people,  the  source  and  fountain  of  all  State  power. 

In  1829  Judge  Thompson,  who,  like  my  friend  from  Winchester,  was  a  strong  advo- 
cate under  the  existing  conditions,  of  the  Pennsylvania  doctrine,  said  the  claim  that 
the  Convention  derived  its  power  from  the  General  Assembly  was  one  of  supereroga- 
tion; and  I  think  the  same  can  be  said  of  any  such  claim  in  behalf  of  a  former  Con- 
vention or  any  General  Assembly  at  this  time. 


3168 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Chapman  Johnson,  when  speaking  of  this  same  Pennsylvania  idea  (which,  in 
my  judgment,  would  never  have  been  suggested  had  the  existing  Constitution  contained 
any  provision  for  its  revision  and  amendment),  admitted  that  the  Legislature  had  no 
inherent  power  to  direct  to  what  electorate  the  Constitution  should  be  submitted,  but 
that  such  powder  could  come  only  from  the  people,  who,  he  claimed,  directed  such  sub- 
mission by  ratifying  and  endorsing  the  act  of  the  General  Assembly  providing  for  the 
election  of  members  of  the  Convention,  which  also  contained  a  provision  prescribing 
to  whom  the  Constitution  should  be  submitted. 

When  the  Convention  of  the  people  assembled,  the  delegates  were  clothed  with 
all  of  the  powers  of  the  principals  and  masters,  the  people,  for  the  purpose  of  vfhich 
they  were  assembled,  which  were  delegated  to  them  by  the  people,  and  which  can 
be  neither  restricted  nor  enlarged,  nor  in  anywise  affected  by  the  provisions  of  a 
former  Constitution  or  General  Assembly.  They  were  invested  with  quasi-sovereign 
povv^ers  directly  deputed  to  them  by  the  people. 

Mr.  Harrison:  If  the  people  v/anted  to  call  a  Constitutional  Convention  with  re- 
stricted powers,  how  Vv^ould  they  do  it? 

Mr.  Bouldin:  They  would  call  the  Convention  in  the  manner  the  Constitution  pro- 
vides, to  revise  and  amend;  and  if  the  restricted  amendments  came  within  the  provi- 
sion of  "revision  and  amendment"  the  Convention  would  have  full  power  to  act  on 
them. 

Mr.  Harrison:  Will  you  allow  me  to  ask  you  one  more  question?  If  the  Constitu- 
tional Convention  of  1869  had  the  right  to  confer  power  on  the  delegates  to  this  Con- 
vention, is  not  the  restriction  they  put  upon  the  powers  of  the  delegates  here  as  bind- 
ing as  the  powers  they  have  conferred? 

Mr.  Bouldin:  I  am  going  to  give  my  attention  to  that  matter  later,  and  will  deal 
with  it  fully  in  two  aspects;  first,  as  showing  the  intention  and  meaning  of  the  Con- 
vention by  the  use  of  these  vt^ords,  "revise  and  amend,"  and,  secondly,  as  to  their 
power  to  make  such  a  provision.  I  w^as  about  to  say,  when  diverted  by  the  last  ques- 
tion, that  the  power  exercised  by  the  people  when,  by  their  affirmative  vote,  they  de- 
termined that  a  Convention  should  be  called,  was  not  the  moral  power  which,  in  the 
Pennsylvania  case,  according  to  Judge  Agnew,  alone  existed.  Judge  Agnew  said,  in 
the  Pennsylvania  case,  that  the  first  vote  of  the  people  simply  put  on  the  Legislature 
such  a  moral  obligation  to  call  a  Convention  as  the  expressed  wish  of  the  people  would 
create;  but  that  there  was  no  mandatory  direction  to  them  to  call  a  Convention;  it  re- 
mained perfectly  discretionary  with  that  body  to  call  the  Convention  or  not.  Here, 
gentlemen,  is  the  great  difference  betvv^een  this  r*ennsylvania  doctrine  and  the  Virginia 
doctrine.  Our  Constitution  provides  that  in  case  the  electors  shall  decide  in  favor  of 
a  Convention  the  General  Assembly,  at  its  next  session,  shall  provide  by  law  for  the 
election  of  delegates  to  said  Convention;  not  that  they  may  provide  by  law  for  such 
Convention.    The  language  is  clear-cut,  direct  and  mandatory,  that  it  shall  call. 

Is  there  any  authority  under  the  provision  to  direct  the  delegates  to  assemble  at 
the  Capitol  in  general  Convention  "to  consider,  discuss,  and  propose  a  new  Constitu- 
tion, or  alterations  and  amendments  to  the  existing  Constitution,"  and  to  direct  that 
the  result  of  the  labors  shall  be  submitted  for  ratification  or  rejection  to  the  people? 

If  any  gentleman  here  feels  that  this  Pennsylvania  doctrine  gives  him  trouble,  I 
beg  of  him  to  draw  the  distinction,  and  carry  it  clearly  with  him  all  the  time,  that 
according  to  the  ruling  of  Judge  Agnew,  in  the  Pennsylvania  case,  there  was  no  man- 
datory direction  to  the  Legislature  to  call  a  Convention.  The  whole  matter  was  left 
discretionary  with  the  General  Assembly.  It  could  either  call  it  or  not,  as  it  saw 
fit.  The  Virginia  Constitution  leaves  no  such  discretion  vfith  the  General  Assembly; 
that  body  is  bound  by  the  mandate  of  the  Constitution  as  long  as  it  exists,  and  that 
mandate  is  that  that  body  shall  provide  by  law  for  the  election  of  delegates  to  such 
Convention,  and  nothing  more.  That  is  the  full  scope  and  power  of  the  letter  of  attorney 
addressed  to  the  Legislature  by  the  sovereign  people,  their  masters,  and  when  it  un- 


DEBATES  or  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA. 


3169 


dertakes  to  take  from  or  add  to  the  terms  of  that  command  it  transcends  its  power; 
and  so  much  of  their  act  as  modifies  or  changes  the  mandate  of  the  Constitution  is, 
in  my  judgment,  absolutely  null  and  void. 

I  recall  here  that  it  was  argued  on  this  floor  by  the  able  gentleman  from  Win- 
chester that  if  one  provision  of  the  act  of  the  General  Assembly  for  the  election  of 
delegates  to  the  Convention  is  void,  necessarily  all  the  remaining  provisions  of  the  act 
must  fall.  I  do  not  so  understand  the  law.  I  understand  it  to  be  a  canon  of  construc- 
tion, universally  recognized  and  admitted  that  if  the  provisions  of  a  statute  are  separate 
and  distinct,  and  are  not  interdependent  the  one  upon  the  other  that  the  legal  pro- 
visions will  stand,  the  illegal  fall,  the  good  will  be  maintained,  and  the  bad  will  be 
rejected. 

When  you  look  to  our  Constitution  for  the  right  and  power  of  the  Legislature  to 
act,  you  will  see  that  it  is  limited  to  providing  by  law  for  the  assembling  of  the 
Convention.  When  they  have  done  that  they  have  exhausted  their  whole  power,  and 
there  is  nothing  left  for  them  to  do;  as  to  this  matter  they  are  "functus  officio."  No 
further  provisions  on  this  subject  by  the  Legislature  will  legally  bind  any  human 
•being  in  the  Commonwealth. 

If  the  Legislature  can  direct  the  submission  of  the  Constitution  they  can  exercise 
any  and  all  other  duties  of  the  Convention,  and  that  body  will  become  a  mere  com- 
mission to  register  the  will  of  the  General  Assembly.  No  other  power  on  earth,  save 
that  from  which  this  Convention  derived  its  authority,  can  direct  the  disposition  to 
be  made  of  the  Constitution  by  this  body. 

My  attention  has  been  called  by  my  friend  from  Winchester  to  a  point  which 
I  had  previously  carefully  determined  should  not  escape  me.  It  is  one  that  is  very 
significant  in  its  bearing  on  the  Question  under  discussion. 

Llr.  Kendall:  Llay  I  ask  the  gentleman  if  he  thinks  we  have  put  anything  into 
this  Constitution  which  violates  that  proviso? 

Mr.  Bouldin:    No,  sir;  we  have  not. 

Mr.  Harrison:  Hovr  about  the  military  exemption,  and  the  capitation  tax  not 
applying  to  soldiers? 

Mr.  Bouldin:  That  proviso,  gentlemen,  is  a  very  significant  part  of  the  provision 
for  amendment.  The  provision  engrafts  the  only  limitation  that  the  former  Conven- 
tion attempted  to  impose  upon  the  power  of  the  delegates  to  future  conventions,  and 
the  proviso  is  as  follows: 

No  amendment  or  revision  shall  be  made  which  shall  deny,  or  in  any  way  impair 
the  right  of  suffrage  or  any  civil  or  political  right  conferred  by  the  Constitution, 
except  for  causes  which  apply  to  all  persons  alike. 

Now,  sir,  this  proviso  goes  a  long  way  to  show  what  the  framers  of  the  Constitu- 
tion understood  by  the  words,  "revise  and  amend."  The  only  limitation  attempted 
to  be  placed  upon  the  power  of  the  conventions  thereafter  called  in  the  manner  pre- 
scribed by  the  Constitution  was  what?  It  was  against  making  any  revision  or  amend- 
ment that  would  impair  the  right'  of  suffrage,  or  any  civil,  political  right  conferred 
by  the  Constitution,  not  considering,  nor  discussing,  nor  proposing  such  revision  or 
amendment.  In  no  other  respecf  did  that  body  attempt  to  restrain  future  conven- 
tions, but  left  them  the  untrammelled  right  to  exercise  all  the  power  that  might  be 
delegated  to  them  by  the  people. 

Had  the  Convention  intended  to  provide  for  the  submission  of  future  constitutions 
to  the  people  for  ratification  or  rejection,  they  would  have  said  so  in  plain  words,  and 
not  left  so  important  a.  matter  to  be  determined  by  the  meaning  of  the  words  revise 
and  amend. 

I  beg  you,  gentlemen,  to  bear  this  proA'iso  in  mind  when  considering  this  important 
question  of  the  extent  of  povrers  delegated  by  the  words  "revise"  and  "amend." 


3170  DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Not  that  the  Convention  of  1869  had  any  power  to  place  such  restrictions  on  future 
conventions,  for  it  had  no  such  power,  but  for  the  purpose  of  throwing  light  on  the  in- 
tention and  meaning  of  the  Convention  in  the  use  of  these  words. 

As  to  whether  we  have  not  already  violated  this  provision  as  suggested  by  the  dis- 
tinguished gentleman  from  Richmond,  by  the  adoption  of  the  suffrage  act,  I  under- 
stand that  as  far  as  the  suffrage  act  is  concerned,  it  was  the  intention  of  this  body, 
that  its  provisions  must  apply  equally  to  people  of  all  races  and  all  colors. 

Mr.  Harrison:    It  doesn't  say  "races,"  it  says  "all  classes." 

Mr.  Thorn:    The  language  is,  "Except  for  causes  which  apply  to  all  persons  and 
classes." 

Mr.  Bouldin:  It  may  be  in  this  latter  that  the  suffrage  article  violates  the  proviso 
contained  in  the  Constitution  of  1869,  but  if  so  this  body  representing  the  people  to-day 
had  the  right  to  adopt  any  suffrage  article  without  reference  to  the  provisions  of  the 
Constitution  of  1869,  for  I  suppose  it  would  not  be  seriously  contended  by  any  one  that 
the  provisions  of  a  former  Constitution  could  bind  the  people  assembled  in  Convention 
to-day.    That  position,  I  believe,  is  held  by  no  one. 

I  come  now  to  further  consideration  of  the  main  proposition — the  theory  of  revision 
and  amendment  in  the  time  of  profound  peace.  As  I  understand  the  theory  of  this 
quasi-revolutionary  and  purely  American  doctrine  of  revision  and  amendment  it  is  this: 
If  the  Constitution  prescribes  its  own  mode  of  amendment  that  mode  must  be  pur- 
sued in  all  cases  of  amendment;  if  no  method  of  amendment  and  provision  is  pre- 
scribed, the  Legislature,  as  the  body  legally  authorized  to  speak  for  the  people,  can 
submit  any  proposition  of  revision  and  amendment  to  the  people  for  its  action. 

In  either  event  the  whole  function  of  the  constitutional  provision  on  the  legislative 
enactment  is  merely  to  ask  and  obtain  the  decision  of  the  people  on  the  question  of  con- 
vention or  no  convention;  and  when  a  convention  is  assembled  under  either  process  it 
derives  its  whole  power  from  the  vote  of  the  people,  and  not  the  act  of  the  Legislature 
or  the  ordinance  of  the  convention.  The  whole  scope,  purpose,  and  object  of  the  legis- 
lative act  and  the  constitutional  provision  is  to  provide  the  means  by  v/hich  the  people 
may  legally  express  their  views,  as  a  body  politic,  and  not  enable  the  Legislature  or  the 
convention  to  control,  in  any  particular,  the  rights  and  powers  of  the  people  in  any 
future  conventions  assembled;  I  understand  it,  sir,  to  be  acknowledged  and  recognized 
law  that  one  General  Assembly  cannot  bind  another  by  any  enactments  except  in  cases 
of  contracts  controlled  by  the  provisions  of  the  Constitution  of  the  United  States.  I  also 
understand  that  one  constitutional  convention  cannot  control  the  subsequent  action  of 
any  other  convention,  and  that  the  whole  extent  to  which  this  system  of  peaceable  revo- 
lution, which  has  sprung  up  in  recent  days,  goes,  is  that  the  people,  acting  in  one  in- 
stance under  the  provision  of  the  Constitution  and  in  the  other  under  a  legislative  enact- 
ment can  determine  the  question  of  convention  or  no  convention,  and  provide  the  means  ^ 
by  which  the  delegates  may  be  assembled  in  convention,  and  when  once  assembled,  they 
as  a  convention  exercise  the  delegated  power  of  the  people,  the  sovereign  power  of  the 
people,  quoad  the  purposes  for  which  they  were  called  together. 

Let  us  look  awhile  to  the  precedents  in  Virginia  on  this  subject.  There  was  no  con- 
stitutional provision  for  calling  the  Convention  of  1829-'30.  The  previous  Constitution 
was  (1776)  the  work  of  revolution,  and  was  proclaimed;  nevertheless  it  was  a  lawful 
and  binding  Constitution,  and  was  so  declared  by  the  General  Courts  about  seventeen 
years  after  its  proclamation.  The  Legislature  in  1829  was  the  only  body  legally  author- 
ized to  give  expression  of  the  will  of  the  people,  and  it  called  the  Convention  of  1829-'30. 

Had  there  been  in  the  Constitution  of  1776  any  provision  for  its  own  amendment, 
this  provision  would  doubtless  have  been  followed  in  1829.  But  notwithstanding  the  fact 
that  there  was  no  other  body  legally  authorized  to  express  the  voice  of  the  people,  ex- 
cept the  Legislature,  the  power  of  that  body  to  submit  the  question  of  revision  and 
amendment  was  bitterly  controverted  in  the  Convention  of  1829,  John  Randolph,  of 
Roanoke  leading  the  assault. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


3in 


The  Convention  of  1S29  did  not  submit  its  work  to  the  electorate  by  whom  they  were 
chosen,  but  to  the  new^  electorate  created  by  it,  thus  practically  proclaiming  their  Con- 
stitution with  respect  to  the  suffrage  article — then,  as  now,  the  most  important  part  of 
the  Constitution.  This  power  was  exercised  under  a  grant  from  the  people,  couched  in 
these  same  words,  "revise"  and  "amend."  If  the  Convention  possessed  the  power  to 
proclaim  the  suffrage  act,  what  hindered  it  from  proclaiming  the  article  with  reference 
to  the  apportionment  of  representation  as  was  asked  in  that  body?  Nay,  more;  if  the 
Convention  had  the  power  to  proclaim  one  article,  why,  I  ask,  could  it  not  proclaim 
every  article  of  the  instrument?  That  Convention  did  what  we  claim  it  is  our  right  to 
do — it  proclaimed  the  most  important  article  of  its  Constitution — the  suffrage  act. 
When  that  was  done,  the  principle  was  acknovrledged. 

;Mr.  Thorn:  Does  not  my  friend  know  that  was  done  under  the  very  terms  of  the 
act  of  1S29?  Does  he  not  know  that  the  extended  electorate  was  mentioned  in  the  terms 
cf  the  act  of  1S29? 

Mr.  Bouldin:  i  know  that  there  was  not  an  advocate  in  the  Convention  of  1S29 — 
neither  Thompson,  nor  Johnson,  nor  Mason — that  ever  claimed  it  was  the  purpose  of  the 
Legislature  to  decide  the  question  to  whom  it  should  be  submitted.  I  refer  especially  to 
Mr.  Mason,  who  said  that  he  was  a  member  of  the  Senate  when  that  act  vras  passed,  and 
that  it  did  not  enter  the  conception  of  that  body  that  they  were  declaring  to  whom  the 
Constitution  should  be  submitted;  but  that  they  did  mean  to  declare,  and  did  declare, 
that  in  the  event  the  Convention  did  not  prescribe  the  electorate  to  which  it  should  be 
submitted,  it  should  go  to  the  then  existing  electorate.  That  was  the  understanding  of 
those  great  men  who  controlled  that  convention.  The  only  difference  between  this  Con- 
vention and  that  of  1829-'30,  as  to  the  power  of  amendment  and  revision,  is,  the  one  was 
called  by  the  Legislature,  when  there  was  no  constitutional  provision  for  amendment, 
and  the  other  was  called  under  a  constitutional  provision. 

Mr.  Wise:  You  are  referring  to  the  action  of  the  Convention  of  lS29-'30,  and  you  are 
speaking  about  the  speech  of  3,Ir.  Mason.  The  resolution  of  Randolph,  of  Roanoke,  was 
that  the  question  of  the  ratification  of  the  Constitution  of  the  Convention  of  lS29-'30 
should  be  submitted  to  the  voters  then  existing  under  the  Constitution. 

Mr.  Bouldin:    The  voters  who  sent  them  to  the  Convention;  yes,  sir. 

^^Iv.  Wise:  Mr.  Thompson,  of  Amherst,  and  Air.  Chapman  Johnson,  of  Augusta,  both 
of  them  among  the  ablest  of  the  members  of  this  State,  took  the  position  that  the  Legis- 
lature had  no  right  to  provide  for  submission  to  any  other  people  than  those  who  were 
electors  under  the  Constitution  then  existing;  but  chey  both  took — 

Mr.  Bouldin:    That  vras  ^Iv.  Randolph's  position. 

Mr.  Wise:  That  was  Mr.  R,andolph's  position.  But  both  Johnson,  of  Augusta,  and 
Thompson,  of  Amherst,  contended  that  the  people  of  Virginia,  having  elected  the  mem- 
bers of  the  Convention  of  lS29-'30  under  the  act  of  the  Legislature,  endorsed  the  act  of 
the  Legislature,  and  that  the  Convention  of  lS29-'30,  assembled  under  the  provisions  of 
that  act,  and  was  bound  by  the  provisions  of  the  act  imder  which  they  were  assembled. 

Mr.  Bouldin:  My  friend  is  right  when  he  says  that  'Mr.  Johnson  and  Judge  Thomp- 
son did  not  claim  that  the  Legislature  had  a  right  to  prescribe  the  electorate  to  which 
the  Constitution  should  be  submitted,  and  he  might  haA'e  added  that  there  was  not  one 
man  in  that  Convention,  so  far  as  its  records  will  show,  who  did  assert  such  a  claim. 
He  is  also  correct  in  saying  that  they  claimed  that,  by  the  subsequent  act  providing  for 
an  election  of  members,  all  the  provisions  of  that  act  regulating  the  powers  of  the  dele- 
gates, when  they  came  into  convention,  were  ratified  by  the  people.  It  v^sls  on  that  point 
that  the  dissension  sprung  up.  There  v«-as  not  a  single  man  who  claimed  the  inherent 
power  of  the  Legislature,  where  the  Constitution  provided  a  different  means,  to  override 
that  of  the  Constitution.  The  claim  for  legislative  power  was  based  on  the  fact  that 
there  was  no  other  legal  mode  of  ascertaining  the  will  of  the  people — no  constitutional 
provision.  The  advocates  of  submission  to-day  are  driven  to  the  same  position  held  in 
1829  by  those  who  favored  submission  to  the  enlarged  electorate — to-wit:    That  the  elec- 


3172  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OP  VIRGINIA. 


tion  of  delegates  by  the  people  was  a  ratification  by  the  people  of  all  of  the  other  pro- 
visions of  the  act  providing  for  the  election  of  delegates  to  the  Convention.  They  for- 
get that  the  conditions  in  1901  are  very  different  from  those  in  1829-'30.  In  1829-'30  the 
Legislature  had  power  to  pass  any  act  on  the  subject  that  it  chose;  in  1903  its  powers 
are  limited  by  the  existing  Constitution  to  providing  by  law  for  the  assembling  of  the 
Convention. 

But  can  there  be  any  force  in  the  argument  that  the  election  of  delegates  by  the 
people  was  an  adoption  and  ratification  by  them  of  all  the  provisions  of  the  act,  consti- 
tutional or  otherwise? 

The  proposition  seems  to  me  to  be  remarkable  indeed.  The  unconstitutional  por- 
tions of  the  act  were  absolutely  null  and  void. 

To  borrow  the  argument  used  in  1829,  what  else  could  the  people  do  when  the  elec- 
tion came?  Were  they  not  "se  defendentis"  compelled  to  elect  their  delegates  to  the 
Convention,  or,  as  the  alternative  allow  a  part  only  of  the  Commonwealth  to  frame  the 
Constitution? 

Suppose  the  people  from  the  western  part  of  the  State  sent  their  delegates  and  those 
from  the  eastern  part  did  not,  or  vice  versa,  how  could  the  people  of  the  whole  State 
secure  protection?  If  it  be  true  that  an  election  held  under  a  legislative  act,  partly 
legal  and  partly  illegal,  is  an  adoption  and  ratification  by  the  people  of  the  illegal  por- 
tions of  the  act,  then  it  would  be  in  the  power  of  the  Legislature,  after  the  people  had 
determined  to  call  a  convention,  to  defeat  their  will  by  engrafting  on  the  act  for  assem- 
bling the  convention  illegal  or  objectionable  measures,  and  thus  compelling  the  people  to 
accept  these  obnoxious  provisions  or  drive  them  from  the  polls.  Surely  such  results 
cannot  legally  follow  the  simple  act  of  the  voter  of  voting  for  his  representative.  I 
undertake  to  say  that  the  people  who  went  to  the  polls  and  elected  delegates  to  this 
Convention  had  no  idea  whatever  that  they  v/ere  not  binding  themselves  to  submission 
or  proclamation;  or  that  they  were  doing  anything  save  sending  their  members  to  the 
Convention  to  exercise  the  powers  conferred  upon  them. 

I  believe  there  was  a  sentiment  in  Virginia  at  the  time  of  the  election  which  has 
always  been  largely  held  in  the  State,  that  a  Constitutional  Convention  possessed  un- 
limited powers,  and  that,  so  far  as  the  practical  understanding  of  the  people  is  con- 
cerned, v/hen  they  voted  for  their  delegates,  their  belief  v/as  that  they  were  sending 
their  representatives  here  clothed  with  the  entire  power  of  the  State  to  do  whatever  they 
chose  v/ith  respect  to  the  work  before  them.  It  was  generally  believed  the  Convention 
represented  the  sovereign  power  of  the  State.  The  people  of  this  State  hold  the  doctrine 
announced  by  Mr.  John  Randolph  Tucker,  that  the  Convention  v/hen  assembled  is  the 
incorporate  representative  of  the  real  body  politic,  the  sovereign  people,  and  that  their 
powers  are  unlimited.  I  do  not  think  that  modern  authorities  go  to  that  extent;  they 
are  to  the  effect  that  the  Convention  exercises  delegated  powers,  but  sovereign  for  the 
purposes  for  which  they  were  delegated,  and  that  there  rests  upon  the  Convention  the 
obligation  to  show  the  commission  under  which  it  acts  and  to  demonstrate  that  it  car- 
ries the  pov/er  which  we  claim.  That  commission  is,  "to  revise  and  to  amend,"  vi^hich, 
in  my  judgment,  means  to  enact  and  proclaim. 

I  come  nov/  to  the  convention  of  1851.  There  can  be  no  comfort  gained  by  my 
friends  who  favor  submission  from  its  action.  The  act  prescribing  the  power  of  the 
Convention  and  the  manner  of  submitting  the  Constitution  to  the  people  was  the  initial 
step  for  the  revision  and  amendment  of  the  existing  Constitution.  The  act  required  the 
Constitution,  when  framed,  to  be  submitted  to  the  people,  who  should  be  declared  elec- 
tors by  the  proposed  Constitution,  and  the  powers  of  the  Convention  were  limited  by  the 
legislative  act,  or  a.ttempted  to  be  limited  to  considering,  discussing,  and  proposing  a 
new  Constitution,  or  alterations  and  amendments,  to  the  existing  Constitution.  The 
section  defining  the  powers  of  the  Convention  is  as  follows: 

The  persons  who  shall  be  elected  in  pursuance  of  this  act  shall,  on  the  second 
Monday  in  October  next,  meet  and  assemble  at  the  Capitol,  in  the  city  of  Richmond, 


DZBATZS  OF  lEE  COXSIIirilOXAL  COXTEyilOy  OF  VIEGIXIA. 


31:3 


In  general  convention,  to  consider,  discuss,  and  propose  a  new  Consiiiution,  or  altera- 
tions and  amendments  to  the  existing  Constitution. 

Conseauentlv  the  Constitution  of  1S51  vras  submitted  to  the  people,  and  as  in  1529- 
'SO,  the  suffrage  act  was  declared  or  proclaimed  by  referring  the  Constitution  to  its  en- 
larged electorate.  As  late  as  1S51  there  was  no  provision  in  our  Constitution  for  peace- 
able amendment.  But  in  the  next  Constitution,  the  ITndervrood  Constitution,  a  provision 
was  engrafted  upon  it  for  its  own  amendment.  The  provision  was  taken.  I  believe,  from 
the  Xew  York  Constitution,  and  was  similar  to  that  existing  in  almost  all  of  the  States 
of  the  ITnion.  It  was  a  provision  which  has  the  sanction  of  the  Supreme  Court  of  the 
United  States,  as  being  the  proper  method  of  giving  expression  to  the  voice  of  the  peo- 
ple as  to  peaceable  revision  and  amendment  of  their  own  Constitutions. 

Xow,  Mr.  President  and  gentlemen  of  the  Convention,  we  come  again  to  the  consid- 
eration of  the  powers  of  the  Convention.  What  are  they?  They  are:  To  revise  and 
amend.  It  is  claimed  that  the  power  does  not  authorize  the  exercise  of  the  power  of 
proclaiming  the  Constitution — ^that  the  Legislature  has  stepped  in  between  the  people 
and  the  Convention,  and  placed  restrictions  and  trammels  upon  t£e  action  of  the  people 
and  reqrdred  the  Constitution  to  be  submitted.  This  extraordinary  claim  is  based  on 
the  alleged  ground  that  the  bill  01  rights  retain  in  the  people  certain  inherent  rights  that 
they  cannot  divest  themselves  of  except  through  the  act  of  the  Legislarure  submitting 
to  the  people  the  Question  of  changing  their  government.  For  this  doctrine  the  Pennsyl- 
^  ania  case  of  "Wells  vs.  Bain  is  referred  to,  forgetful  of  the  lact  that  that  very  case  de- 
clares, in  terms,  that  the  only  known  means  of  revising  and  amending  a  constitution  is 
by  a  provision  contained  in  the  instrument,  or  by  legislative  act,  or  by  revolution,  and 
that  in  Peimsylvania,  at  that  time,  there  was  no  constitutional  provision  for  calling  a 
convention  to  revise  and  amend  the  Constitution,  and  that  every  line  and  syllable  of 
that  opinion  is  limited  to  a  case  where  the  Legislature  exercised  its  power  01  amendment, 
there  being  no  other  provision  for  exercising  such  powers. 

But  in  every  case  that  I  have  been  able  to  find  on  this  subject,  where  there  is  a  con- 
stitutional provision  for  amendment,  it  has  always  been  held  to  be  binding.  If  there  be 
no  such  constitutional  provision  the  legislative  enactment  comes  into  effect. 

And,  as  my  friend  from  Richmond  thinks  that  under  the  Pennsylvania  case  revision 
and  amendment  of  rights  secured  by  the  Bill  01  Rights  can  only  be  effected  by  authority 
of  a  legislative  act,  I  beg  to  read  the  language  of  Judge  Agnew  on  that  point. 

The  Bill  of  Rights  of  Pennsylvania,  as  he  so  well  stated,  is  almost  identically  the 
same  as  our  own.  There  may,  perhaps,  be  a  little  diSerence  in  phraseology,  but  not  a 
particle  in  meaning.  Referring  to  the  rights  secured  in  the  Bill  of  Rights,  the  Judge 
says: 

"The  words  'in  such  manner  as  they  may  think  proper,'  in  the  Declaration  of  Plights, 
embrace  but  three  known  recognized  modes  by  which  the  whole  people,  the  State,  can 
give  their  consent  to  an  alteration  of  an  existing  lawful  frame  of  government." 

The  first  mode  he  mentions  is  that  foimd  in  the  Underwood  Constitution:  "The 
mode  provided  in  the  existing  constitution."  The  second,  "A  law,  as  the  instrumental 
process  of  raising  the  body  for  revision  and  conveying  to  it  the  powers  of  the  people." 
Third.  '"'A  revolution." 

Mr.  Thorn:  I  merely  wish  to  get  the  exact  position  of  my  friend  on  one  subject, 
Mr.  President-,  As  I  understand,  he  does  not  claim  that  this  convention  is  identical  with 
the  people? 

Mr.  Bouldin:    I  think  they  exercise  delegated  powers  conferred  by  the  people. 

Mr.  Thorn:  I  was  about  to  follow  that  with  a  further  question.  You  admit  that  the 
powers  of  this  convention  are  delegated  powers,  and  that  we  are  the  mere  agents  of  the 
people? 

Mr.  Meredith:  T\"liat  is  the  extent  of  the  delegation?  It  is  not  the  supreme  power 
of  the  people. 

Mr.  Bouldin:    The  power  given  us  is  the  power  to  revise  and  amend;  which,  in  my 


3174 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


judgment,  is  to  enact,  and  to  this  end  we  possess  all  the  power  held  by  the  people.  The 
delegation  to  the  convention  is  the  fullest  and  amplest  power  to  frame  a  Constitution, 
and  to  submit  or  proclaim  the  same,  as  the  Convention  may  deem  best.  As  before 
stated,  such  is  the  opinion  of  Mr.  Tucker,  and  he  holds  the  further  view  (which  I  think 
generally  prevails  in  the  State)  that  the  convention,  legally  called  into  being  by  the  in- 
strumentality through  which  alone  the  body  politic  can  speak,  becomes  possessed  of  all 
the  powers  of  the  people  themselves.  If  that  be  the  correct  view  (and  it  is  maintained, 
I  understand,  by  eminent  gentlemen  on  this  floor),  it  does  not  militate  against  anything 
that  I  have  said,  but  strengthens  my  position,  that  we  have  the  power  to  proclaim  the 
Constitution. 

My  friend  from  Richmond  defies  us  to  point  to  any  instance  of  proclamation  of  a 
Constitution.  In  recent  times,  in  Arkansas,  in  Mississippi,  in  Florida,  in  South  Caro- 
lina, and  in  Delaware,  constitutions  have  been  proclaimed,  and  in  the  earlier  days  of 
the  republic  the  constitutions  of  all  of  the  original  States  were  proclaimed;  and  the 
Constitution  of  the  United  States  was  proclaimed  after  it  was  ratified  by  the  Legisla- 
tures of  the  States. 

Mr.  Wise:    You  say  you  will  name  three  States  in  which  proclamation  was  made? 
Mr.  Bouldin:    Pour  or  five,  I  think  I  have  named. 

Mr.  Wise:  In  113  instances,  in  opposition  to  that,  they  have  voted  that  proclama- 
tion could  not  be  made. 

Mr.  Bouldin:    All  of  the  original  States  of  this  Union  proclaimed  their  constitutions. 

Mr.  Blair:  In  reference  to  the  Delaware  Constitution,  I  wish  to  call  the  gentleman's 
attention  to  the  fact  that  it  has  been  the  custom  in  Delaware  to  proclaim  the  Constitu- 
tions, and  it  is  a  fact  that  in  Virginia  laws  are  made  by  custom.  Therefore,  if  it  were 
the  custom  to  proclaim  the  Constitution  in  this  State  we  would  be  justified  in  doing  so 
now;  but  that  is  not  the  case.  I  wish  the  gentleman  to  state  it  has  been  the  custom  in 
Delaware  to  proclaim  their  Constitutions.  Custom  makes  law  just  as  much  as  it  does  a 
written  Constitution. 

Mr.  Bouldin:  The  Constitution  was  proclaimed;  there  never  was  any  objection 
made  to  it,  and  its  validity  is  as  undoubted  as  is  the  validity  of  the  constitutions  of 
other  States  that  were  submitted  to  and  ratified  "by  the  people. 

In  this  connection  I  beg  to  again  cite  the  opinion  of  Mr.  Tucker  when  referring  to 
the  fact  that  in  the  early  history  of  the  country  nearly  all,  and  certainly  all  the  original 
States,  proclaimed  their  Constitutions.  Mr.  Tucker  says  there  is  no  fixed  rule  as  to 
whether  the  Constitution  must  be  submitted  or  proclaimed,  but  that  the  practice  varies 
in  different  States,  and  he  concludes  with  this: 

But  the  practice  has  had  exceptions,  and  it  may  be  safely  stated  that  the  validity 
of  a  Constitution  will  not  be  held  to  depend  upon  its  final  ratification  by  popular  vote. 

This  is  the  opinion  of  a  very  eminent  man,  who  stood,  perhaps,  as  high  as  any  con- 
stitutional writer  in  the  United  States,  and  he  says  the  validity  of  a  Constitution  does 
not  depend  upon  its  ratification.  In  the  early  history  of  the  country  the  Constitutions 
were  proclaimed.  Latterly  the  custom  has  changed;  why  it  has  changed  I  do  not  know, 
sir,  but  it  has  occurred  to  me  that  it  has  been  the  result  of  governmental  rather  than 
judicial  considerations.  The  admission  of  new  territories,  and  difficulties  that  have 
arisen  in  this  connection,  as  to  rival  constitutions,  such  as  the  Le  Compton  trouble  in 
Kansas,  referred  to  by  the  gentleman  from  Wythe,  may  have  caused  a  steady  increase 
in  growth  of  the  sentiment  in  favor  of  submission,  which  during  the  last  half  century 
has  been  the  prevailing  rule  rather  as  a  governmental  than  a  judicial  consideration.  But 
after  all,  behind  and  underlying,  in  my  judgment,  the  question  of  the  power  of  the  con- 
vention is  the  scope  and  extent  of  their  commission.  Their  commission  is  to  revise  and 
amend.  That  revision  and  amendment  may  apply  to  one  clause  or  it  may  apply  to  every 
clause,  and  every  line  in  the  Constitution,  and  carries  with  it  the  power  of  enactment 
The  power  of  enactment  can  be  delegated  as  well  In  advance  as  by  the  adoption  and 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVENTIOX  OE  VIRGINIA.  3175 

ratification  of  our  work,  as  said  by  Judge  Cooley,  and  in  my  opinion  the  whole  power  of 
the  State  to  make  a  new  Constitution  and  to  proclaim  it  as  the  organic  law  of  the  land 
has  been  delegated  to  us  by  the  people.  How,  gentlemen,  are  the  powders  of  this  Con- 
vention sought  to  be  limited  and  confined  and  that  body  required  to  submit  its  Consti- 
tution? By  an  act  of  the  Legislature  which  was  never  submitted  to  the  people,  and  is 
contrary  to  the  provisions  of  the  Constitution,  and  which  legally  could  provide  only  for 
the  election  of  the  delegates.  Now,  sir,  if  there  be  a  conflict  between  the  method  pre- 
scribed by  the  Constitution  and  the  provisions  of  the  legislative  act  providing  for  the 
election  of  the  members,  I  ask  this  Convention:  Which  is  to  prevail?  Shall  the  con- 
stitutional provision  be  set  aside  and  the  legislative  provision  take  its  place?  or  shall 
the  legislative  provision,  in  so  far  as  it  is  in  conflict  with  the  Constitution,  give  way? 
Does  the  Convention  derive  its  powers  from  the  people?  or  from  the  illegal  legislative 
enactment?  The  authorities  are  not  silent  on  this  point.  In  West  Virginia,  just  across 
the  border,  it  has  been  held  that  a  constitutional  convention  lawfully  convened  does  not 
derive  its  powers  from  the  Legislature,  but  from  the  people — that  these  powers  are  in 
the  nature  of  sovereign  powers — and  that  the  Legislature  can  neither  limit  nor  restrict 
the  convention  in  the  exercise  of  those  powers.  The  same  doctrine  was  announced  in 
Mississippi,  and  I  believe  it  prevails  in  all  of  the  States  where  it  has  been  brought  into 
question. 

Mr.  Pedigo:  Do  you  contend  that  this  Convention  could  reduce  the  suffrage  to  one- 
fourth  of  v/hat  it  now  is,  then  proclaim  the  Constitution  and  compel  the  three-fourths  of 
the  people  of  Virginia  either  to  go  into  revolution,  to  get  their  rights,  or  give  them  no 
way  at  all  to  get  their  rights  except  by  the  votes  of  the  one-fourth? 

Mr.  Bouldin:  I  had  not  expressed  any  opinion  in  that  event,  but  I  said,  and  now 
say  that  in  my  opinion  the  Convention  has  a  right  to  make  the  Constitution  and  proclaim 
it,  and  that  if  the  people  object  to  it,  either  in  the  proportion  of  one-fourth  or  of  three- 
fourths,  they  have  their  remedy  in  calling  another  convention. 

Mr.  Pedigo:  How  can  they  call  another  convention,  if  they  cannot  vote? 
(Laughter). 

Mr.  Bouldin:  In  the  manner  provided  by  the  Constitution,  if  there  be  any  provision 
for  that  purpose,  and  in  the  absence  of  such  provision,  by  the  Legislature  or  by  revolu- 
tionary proceedings.  W^hat  I  do  say  is,  that,  in  my  judgment,  the  Convention  has  the 
right  to  make  and  proclaim  the  Constitution. 

In  a  recent  case  in  Mississippi,  the  judge,  in  delivering  the  opinion  of  the  court,  said 
among  other  things: 

The  act  of  the  Legislature  which  provided  for  the  assembling  of  the  Constitu- 
tional Convention  of  1890,  declared  that  the  end  sought  to  be  attained,  the  work  to 
be  done,  was  the  revision  and  amendment  of  the  Constitution  of  1869,  or  the  enact- 
ment ot  a  new  Constitution;  it  did  not  attempt  to  limit  the  powers  of  the  Convention 
by  imposing,  or  seeking  to  impose,  upon  that  sovereign  tribunal  the  mere  legislative 
will  that  the  Constitution  should  be  submitted  to  the  people  for  ratification. 

And  in  speaking  of  the  character  and  nature  of  the  powers  of  Constitutional  Con- 
ventions he  further  said: 

We  have  spoken  of  the  Constitutional  Convention  as  a  sovereign  body,  and  that 
characterization  perfectly  defines  the  correct  view,  in  our  opinion,  of  the  real  nature 
of  that  august  assembly.  It  is  the  Iiighest  legislative  body  known  to  freemen  in  a 
representative  government.  It  is  supreme  in  its  sphere.  It  waelds  the  powers  of 
sovereignty,  specially  delegated  to  it  for  the  purpose  and  the  occasion  by  the  w^hole 
electoral  body,  for  the  good  of  the  whole  Commonwealth.  The  sole  limitation  upon 
its  power  is,  that  no  change  in  the  form  of  government  shall  be  done  or  attempted. 
The  spirit  of  republicanism  must  breathe  through  every  part  of  the  framework,  but 
the  particular  fashioning  of  the  parts  of  this  frame  work  is  confided  to  the  wisdom, 
the  faithfulness,  and  the  patriotism  of  this  great  convocation  representing  the  people 
in  their  sovereignty. 

The  theorizing  of  the  political  essayist  and  the  legal  doctrinaire,  by  which  it  is 


3176  DEBATES  OE  TELE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

sought  to  be  established  that  the  expression  of  the  will  of  the  Legislature  shall  fetter 
and  control  the  Constitution-making  body,  or,  in  the  absence  of  such  attempted  legis- 
lative direction,  which  seeks  to  teach  that  the  Constitutional  Convention  can  only  pre- 
pare the  frame  of  a  Constitution  and  recommend  it  to  the  people  for  adoption,  v/ill  be 
found  to  degrade  this  sovereign  body  below  the  level  of  the  lowest  tribunal  clothed 
with  ordinary  legislative  powers.  This  theorizing  will  reduce  that  great  body,  which, 
in  our  own  State,  at  least,  since  the  beginning  of  its  existence,  except  for  a  single  brief 
interval  in  an  exceptional  period  by  custom  and  the  universal  consent  of  the  people, 
has  been  regarded  as  the  repository  and  executor  of  the  powers  of  sovereignty,  to  a 
mere  commission,  stripped  of  all  power,  and  authorized  only  to  make  a  recommenda- 
tion. 

To  the  same  effect  was  the  decision  in  West  Virginia  before  referred  to. 

Now,  Mr.  President,  this  brings  me  to  the  last  point  to  vvhich  I  will  invite  your 
attention  in  considering  the  conflict  between  the  constitutional  provision  for  amendment 
and  the  legislative  provision.  The  constitutional  provision  requires  the  Legislature  to 
provide  for  the  election  of  members  to  the  Convention,  and  nothing  else.  The  Legisla- 
ture of  Virginia  undertook  to  provide  not  only  for  the  assembling  of  the  Convention, 
which  they  were  commanded  to  do  by  the  Constitution,  but  also  to  limit  the  power  of 
the  Convention  to  the  right  to  consider,  discuss,  and  propose  a  new  Constitution,  or 
alterations  and  amendments  to  the  existing  Constitution. 

Now,  sir,  here  is  a  direct  conflict  between  the  mandate  of  the  Constitution  and  the 
provision  of  the  act  of  the  General  Assembly.  Which  shall  prevail?  Which  shall  gov- 
ern the  people?  Which  shall  define  and  declare  the  powers  of  this  body?  The  Consti- 
tution, which  created  the  Legislature,  or  the  Legislature  which  is  the  creature  of  the 
Constitution.  There  can  be,  sir,  under  the  universal  rules  of  interpretation,  but  one 
answer  to  that  question.  That  is,  that  the  provisions  of  the  legislative  enactment  is 
void,  in  so  far,  and  to  the  full  extent  of  its  conflict  with  the  Constitution,  and  must  yield 
to  the  constitutional  requirement.  The  relative  pov/ers  of  tlie  two  bodies  have  been  so 
well  stated  in  an  early  Pennsylvania  case  that  I  cannot  refrain  from  quoting  to  some 
extent  of  the  able  Judge  Patterson,  who  delivered  the  opinion  of  the  court,  defining  the 
comparative  difference  between  a  Constitutional  Convention  and  a  Legislature. 

What  is  a  Constitution?  asks  the  Judge.  It  is  the  form  of  the  government  delin- 
eated by  the  mighty  hand  of  the  people  in  which  certain  first  principles  of  fundamental 
law  are  delineated.  The  Constitution  is  certain  and  fixed;  it  contains  the  permanent 
will  of  the  people,  and  is  the  supreme  law  of  the  land;  it  is  paramount  to  the  power 
of  the  Legislature,  and  can  be  revoked  or  altered  only  by  the  authority  that  made  it. 
The  life-giving  principle  and  the  death-dealing  stroke  must  proceed  from  the  same 
hand.  Yvhat  are  legislatures?  Creatures  of  the  Constitution;  they  ov/e  their  existence 
to  the  Constitution;  they  derive  their  powers  from  the  Constitution;  it  is  their  com- 
mission, and  therefore  all  their  acts  must  be  conformable  to  it,  or  else  they  will  be 
void. 

The  Constitution  is  the  wov^  of  the  vv^ill  of  the  people  themselves,  in  their  original, 
sovereign,  and  unlimited  capacity.  Law  is  the  work  or  will  of  the  Legislature  in 
their  derivative  and  subordinate  capacity. 

The  one  is  the  work  of  the  creator,  and  the  other  of  the  creature.  The  Constitu- 
tion fixes  limits  to  the  exercise  of  legislative  authority,  and  prescribes  the  orbit  within 
which  it  must  move.  In  short,  gentlemen,  the  Constitution  is  the  sun  of  the  political 
system,  around  which  all  legislative,  executive,  and  judicial  bodies  must  revolve. 

¥7hatever  be  the  case  in  other  countries,  yet  in  this  there  can  be  no  dcJubt  that 
every  act  of  the  Legislature  repugnant  to  the  Constitution  is  absolutely  void. 

The  legislative  act  must  give  away  and  be  rejected  on  the  score  of  repugnance. 

Now,  gentlemen,  such  being  the  relative  situation  of  these  two  bodies,  which  is  to 
control  in  providing  for  the  assembling  of  this  Convention?  The  principles  laid  down 
in  that  early  Pennsylvania  case  are  as  strong  to-day  as  when  they  were  uttered.  When- 
ever it  can  be  ascertained  that  there  is  conflict  between  a  legislative  enactment  and  a 
constitutional  provision,  the  legislative  enactment  must  go  to  the  ground,  and  the  con- 
stitutional provision  must  prevail.    Mr.  President,  I  conclude  where  I  began — that  the 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


3177 


vrhole  question  involTed  in  this  discussion  is,  vrhettier  our  commission,  our  letter  of 
attorney  is  broad  enough  to  embrace  the  poorer  we  claim  for  it,  irrespective  of  the  illegal 
requirement  engrafted  by  the  Legislature  on  the  act  providing  for  the  assembling  of  the 
Convention — vrhether  to  "revise  and  amend"  is  equivalent  to  a  povrer  to  revise,  amend, 
and  proclaim. 

After  the  most  earnest  consideration  that  I  have  been  able  to  give  to  this  subject, 
and  with  an  equally  earnest  desire  to  reach  the  truth,  I  have  come  to  the  conclusion 
that  we  have  the  right  to  proclaim  the  Constitution.  I  recognize,  gentlemen  of  the 
Convention,  the  great  importance  of  this  matter,  and  I  have  formed  this  conclusion 
after  careful  investigation  and  with  much  dilEculty,  and  I  am,  however,  open  to  convic- 
tion as  to  the  correctness  of  my  opinion.  It  is  my  present  intention,  when  this  ques- 
tion comes  up,  to  vote  for  proclamation,  cut  if  those  gentlemen  who  advocate  other 
views  can  show  me  that  the  interests  of  the  people  will  be  jeopardized  by  such  pro- 
clamation, no  man  could  more  promptly  change  his  views  than  I.  If  we  were  a  homo- 
geneous people,  if  there  was  not  such  a  marked  and  distinct  difference  in  the  people  to 
be  affected  by  this  Constitution,  I  would,  in  the  exercise  of  that  custom  that  habitually 
controls  my  actions  in  matters  of  importance,  vote  for  submission;  but  I  believe  that 
the  welfare  of  our  Commonwealth  requires  that  we  should  avoid  the  cost  and  agitation 
of  a  heated  contest  over  the  adoption  of  the  Constitution,  and  it  is  our  highest  duty  tc 
recognize  the  wishes  of  the  people  of  the  State  and  proclaim  the  Constitution.  AVe  have 
the  power  to  do  so.  We  are  throwing  off,  I  trust,  the  last  shackles  of  our  unsuccessful 
revolution  and  entering  upon  a  better  era  of  our  country's  career,  I  do  not  wish  to 
hazard  unnecessarily  the  hopes  of  our  people  by  risking  the  loss  of  our  Constitution, 
which  is  a  good  instrument  and  will  meet  the  growing  wants  of  the  people.  Believing 
that  the  best  interest  of  the  State  requires  the  adoption  of  the  Constitution  we  have 
framed,  I  shall,  in  the  exercise  of  the  power  that  I  believe  we  have  received  directly 
from  the  people,  that  no  legislature  can  fetter,  vote  to  declare  the  supreme  law  of  the 
State. 

I  thank  you.  gentlemen  of  the  Convention,  for  your  kind  attention  to  this  disjointed 
and  rather  rambling  discourse.    (Great  applause.) 

On  motion  of  Mr.  Thom  the  Convention  adjourned  until  to-morrow,  Tuesday,  May  27, 
1902,  at  10  o'clock  A.  M. 


TUESDAY,  May  27,  1902. 

The  Convention  met  at  10  o'clock  A.  IM. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D. 

PETITIONS  AND  RESOLUTIONS. 

Mr.  Thornton:  Mr.  President,  I  offer  the  following  resolution  and  ask  its  imme- 
diate consideration. 

The  President:    The  Secretary  vrill  read  the  resolution. 

Resolved.  That  the  Supreme  Court  of  Appeals  of  Virginia  be.  and  is,  hereby  re- 
quested to  give  its  opinion  in  writing,  at  the  earliest  time  practical,  as  to  the  au- 
thority of  the  Constitutional  Convention  to  proclaim  the  proposed  Constitution. 

IMr.  President,  in  offering  that  resolution  I  desire  to  state  that  I  find,  in  discussing 
the  question  from  a  legal  standpoint,  great  diversity  of  opinion.  Gentlemen  who  possess 
equal  ability  seem  to  differ  widely  as  to  the  legal  right  of  this  Convention  to  proclaim  the 
Constitution,  and  it  seems  to  me,  sir,  that  where  such  diversity  of  opinion  exists  there 
must  be  some  uncertainty.  The  sooner  that  uncertainty  is  disposed  of  the  better.  I 
200 — Const.  Deb. 


3178  DEBATES  OE  THE  CON"STITUTIONAL  CONVENTION  OF  VIRGINIA. 

imagine  that  the  Court  of  Appeals  will  very  cheerfully  comply  with  the  request  of  the 
Convention  for  its  opinion.  I  presumie  that  the  matter  would  ultimately  come  before 
that  court,  anyhow,  and  it  seems  to  me  it  would  be  better  to  have  the  matter  settled 
finally  now  rather  than  to  wait  until  it  may  be  too  late. 

Mr.  Wescott:  Will  the  gentleman  give  some  information  on  the  subject  as  to  what 
reason  he  has  for  making  that  request,  and  what  authority  the  court  has  to  decide  a 
moot  question. 

Mr.  Thornton:  I  will  answer  that  with  pleasure.  I  do  not  think,  In  the  first  place, 
that  this  is  a  moot  question.  If  it  is,  this  convention  has  been  discussing  a  moot  ques- 
tion for  some  time.  Secondly,  as  I  stated,  I  do  not  believe  the  Court  of  Appeals  under 
the  circumstances  would  refuse  a  request  of  this  Convention  if  this  matter  should  be 
submitted  to  it.  After  this  Convention  adjourns  it  will  become  a  very  serious  matter, 
indeed,  Jf  the  court  should  decide  the  Convention  had  not  the  right  to  proclaim  the  Con- 
stitution. I  think  now  would  be  the  proper  time  to  submit  that  question,  and  I  do  not 
believe  the  Court  of  Appeals  would  refuse  the  request,  even  if  they  had  the  right  to  do 
so,  when  it  is  made  by  a  resolution  passed  by  this  Convention.  Ordinarily,  I  know  the 
Court  of  Appeals  would  act,  and  that  they  would  prefer  to  act  now  rather  than 
wait  until  after  this  Convention  has  adjourned.    That  is  the  reason  I  offer  it. 

Mr.  Pedigo:    I  move  that  the  resolution  lie  on  the  table  and  be  printed. 

The  President:    It  will  be  so  ordered  in  the  absence  of  objection. 

METHOD  OF  ADOPTING  CONSTITUTION. 

The  President:  The  unfinished  business  this  morning  is  the  resolution  offered  by 
the  gentleman  from  Campbell  (Mr.  Daniel)  as  to  the  disposition  to  be  made  of  the  Con 
stitution. 

Mr.  Pedigo:  Mr.  President  and  gentlemen  of  the  Convention,  I  have  been  asso- 
ciated with  the  members  of  this  Convention  for  so  long  a  time,  and  have  become  so  y^ell 
acquainted  with  them,  and  have  found  them  to  be  such  genial,  good  fellows,  that  I  do 
not  harbor  a  doubt  that  each  and  every  one  of  them  is  actuated  by  motives  of  honor  and 
patriotism  in  all  their  acts  and  votes.  I  have  learned  to  honor  them  all.  And,  while 
owing  to  my  party  affiliation,  I  have  been  separated  from  the  great  majority  of  them  in 
their  most  exacting,  trying,  and  painful  work,  still  I  have  at  no  time  envied  them  either 
their  exalted  power  or  the  distinction,  fame,  glory,  and  honor  they  have  gained,  or  are 
likely  yet  to  win,  by  the  skilful  manner  in  which  they  have  handled  the  vexed  problems 
it  has  fallen  to  their  lot  to  grapple  with. 

I  beg  you  all  to  bear  in  mind  that  any  seeming  want  of  due  respect  and  reverence 
that  may  slip  out  in  my  renjarks  will  be  intended  and  directed  at  the  structure,  and 
not  at  the  builders. 

I  have  never  regarded  the  pov^ers  of  this  Convention  to  be  god-like  or  even  imperial, 
but,  on  the  contrary,  as  being  in  strict  subordination  to  the  Constitution  of  the  United 
States,  the  Constitution  and  laws  of  Virginia,  and  the  will  of  a  majority  of  the  people  of 
Virginia.  If  we  submit  the  work  of  this  convention  to  a  fair  and  honest  vote  of  the 
people,  and  they  ratify  it,  it  will  cure  all  the  defects  in  our  title  and  authority  to  act 
for  them;  it  will  then  be  the  voice  of  the  people,  and  the  voice  of  the  people  is  the 
voice  of  God.  If  we  attempt  to  proclaim  it,  it  will  have  all  the  appearance  and  all  the 
elements  of  a  conspiracy  to  deprive  the  people  of  their  right  of  self-government — a 
right  conferred  on  them  by  God,  and  secured  to  them  by  the  Virginia  Bill  of  Rights, 
the  Constitution  of  the  United  States,  the  Constitution  and  laws  of  Virginia,  as  well  as 
by  the  Ten  Commandments,  and  the  Sermon  on  the  Mount,  and  every  other  authority 
on  law  and  morality  that  is  known  to  us.  The  right  to  vote  is  so  well  secured  to 
every  law-abiding  citizen  of  the  State  that  they  cannot  be  deprived  of  it,  except  by 
fraud  or  by  revolution.  Fraud  is  lawless,  contemptible,  and  altogether  unworthy  of 
any  people  who  claim  to  be  decent  and  respectable.    Revolution  is  dangerous  and 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTION  OF  VIEGIXIA,  3179 

uncertain,  but  nobody  doubts  the  right  of  any  people  to  resort  to  it,  whenever  their 
safety  demands  it.  Nothing  in  the  situation  in  Virginia  can  be  urged  in  justification 
of  either  the  one  or  the  other.  We  are  at  peace,  our  business  is  going  'on  in 
a  fairly  prosperous  condition,  our  courts  are  abundantly  able  to  preserve  order  and 
to  dispense  justice.  It  would  be  wanton  wickedness  to  start  a  revolution.  If  we 
are  clothed  with  sufficient  power  to  lawfully  deprive  100,000  negroes  of  their  right  to 
vote,  we  also  have  the  power  to  take  from  200,000  white  men  their  right  to  vote;  or  we 
have  the  right  to  restrict  suffrage  just  as  far  as  we  please,  even  to  owners  of  $5,000 
worth  of  real  estate. 

Simply,  we  have  no  such  right  or  povrer,  and  its  attempted  exercise  would  be  a 
gross  usurpation  of  power;  it  would  be  looked  upon  as  revolutionary  and  void,  and 
would  lead  directly  and  immediately  to  discontentment,  strife,  litigation,  and  riot,  and 
probably  to  bloodshed. 

The  so-called  temporary  understanding  clause  is  such  that  I  cannot  define  it  in 
■words  that  would  adequately  express  my  opinion  of  it  without  transgressing  the  rule 
of  this  body,  that  requires  us  to  use  moderate,  discreet,  and  respectful  language  in  all 
our  speeches  on  this  floor.  However,  I  will  go  so  far  as  to  say  that  it  is  bad,  that  it  is 
wicked,  that  it  is  un-Democratic,  that  it  is  un-American — an  exotic  brought  to  the  State 
from  the  swamps  of  Mississippi,  where  the  tree  of  liberty  never  took  root,  or  from 
South  Carolina,  where  that  tree  has  long  since  perished. 

It  clothes  a  registrar  who  is  to  be  appointed  by  a  board,  who  are  to  be  appointed 
by  a  judge,  who  is  to  be  appointed  by  the  Legislature,  with  powers  greater  than  any 
monarch  on  earth  can  now  exercise. 

He  is  given  authority  to  disfranchise  as  many  of  the  freemen  of  Virginia  as  his 
party's  interest  requires.  If  he  happens  to  be  an  ignorant  or  vulgar  man,  as  he  will 
quite  likely  be,  many  citizens  will  avoid  him  in  disgust — as  they  would  not  touch  pitch 
lest  they  be  defiled.  If  he  be  a  violent  partisan,  as  he  is  almost  sure  to  be,  he  will 
discriminate  in  favor  of  his  own  party,  and  against  its  opponents.  As  no  one  is  will- 
ing to  play  against  loaded  dice,  or  to  bet  with  a  juggler  at  his  own  tricks,  it  is  but 
reasonable  to  expect  that  the  number  of  voters  will  be  reduced  to  a  mere  fraction  of 
what  it  now  is— a  consummation,  if  we  can  judge  by  appearances — that  is,  by  many 
of  the  members  of  this  Convention,  devoutly  wished  for.  In  fact,  the  desire  to  reduce 
the  number  of  voters  has  overreached  the  bounds  of  prudence.  This  Constitution  holds 
out  substantial  inducements  to  men  to  refrain  from  registering  and  voting.  It  offers  a 
bribe  of  $1.50  to  every  man  in  the  State  who  will  stay  away  from  the  elections,  and 
it  takes  $1  of  it  out  of  the  children's  money.  If  this  scheme  succeeds,  as  well  as  it 
can  reasonably  be  counted  on,  it  will  hold  off  200,000  voters,  and  bleed  the  school  fund 
to  the  tune  of  $200,000  annually. 

But  some  of  you  say  it  will  only  last  for  three  years,  and  then  we  will  skin  them. 
We  will  make  them  pay  up  in  full,  but  not  let  them  vote.  But  such  persons  have  not 
taken  into  consideration  the  provisions  of  Section  173,  Article  XIII.,  which  provides: 

But  said  State  capitation  tax  shall  not  be  a  lien  upon,  nor  collected  by  legal  process 
from  the  personal  property  vvhich  may  be  exempt  from  levy  or  distress  under  the  poor 
debtor's  law. 

So  that  nearly  all  of  this  consideration  is  secured  to  them  permanently.  And  the 
folly  and  crime  of  depleting  the  revenue  and  recruiting  and  augumenting  by  a  bounty 
the  discontented  and  vicious  class  will  be  indelibly  fixed  upon  this  Convention. 

In  regard  to  other  changes,  all  I  have  to  say  is  that  the  long,  carefully-prepared 
article  on  corporations  may  or  may  not  be  a  good  thing.  It  was  prepared-  with  great 
care.  It  is  experim.ental  at  best;  and  good  or  bad  it  is  in  the  wrong  place.  All  of  it, 
except  the  skeleton,  should  be  among  the  Acts  of  Assembly,  where  it  could  be  easily 
amended  if  it  should  require  amendment. 

Another  encroachment  upon  the  rightful  domain  of  the  Legislature  is  that  which 
fixes  for  four  years  a  rate  of  taxation. 


3180  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

This  was  most  certainly  designed  as  a  sort  of  sugar  coating  to  a  bitter  pill — just 
a  little  sweetening  for  a  nauseousness.  It  is  altogether  out  of  place  in  the  Constitu- 
tion, and  is  also  unworthy  of  a  place  on  any  statute  book;  for  every  session  of  the 
Legislature  should  have  full  power  to  fix  the  tax  rate  so  as  to  meet  the  wants  of  the 
treasury.  But  from  another  and  entirely  different  standpoint,  it  is  unworthy  of  a 
place  in  this  Constitution.  It  was  intended  to  be  used  also  as  a  withys  to  bolster  up 
the  weak  pretense  that  the  new  Constitution  would  be  less  expensive  than  the  old. 
At  a  time  when  there  was  $700,000  or  $800,000  surplus  in  the  treasury,  it  was  deemed 
practicable  to  reduce  the  revenue  slightly  and  to  draw  from  the  surplus  to  make  up  for 
the  deficiency  in  current  income.  This  plan  has  been  pretty  well  thv/arted  by  the  last 
Legislature  cleaning  out  the  treasury. 

The  gentleman  from  Norfolk  (Mr.  Thorn),  in  one  of  the  most  carefully-prepared,  pa- 
triotic, and  scholarly  speeches  that  has  been  delivered  on  the  floor  of  this  Convention, 
speaks  in  sad  and  mournful  words  and  tones  of  the  decadence  of  Virginia's  people 
in  the  councils  of  the  nation.  If  he  does  not  say  it  in  so  many  words,  he  leaves  us 
to  infer  that  in  his  opfnion,  the  fault  lies  with  the  masses,  the  irresponsible  eleciorat(». 

I  am  quite  sure  that  in  this  he  is  mistaken.  The  shortcoming  is  at  the  top,  and  not 
at  the  bottom.  The  foundation  of  the  old  edifice  is  still  sound,  but  the  spire  is  rotten. 
The  sober  truth  is  that  in  Virginia  there  is  a  rising  generation  of  statesmen. 

Those  who  were  intended  by  God  to  be  the  leaders  of  this  and  the  immediate  past 
generation,  and  by  Him  endowed  with  the  requisite  qualities,  were  cut  off  in  the  bloom 
of  their  youth  by  the  ravages  of  war,  and  we  have  been  compelled  to  select  our  repre- 
sentatives from  among  the  people  who  were  designed  by  their  Creator  for  equally  use- 
ful, but  less  conspicuous  and  less  exacting  places  in  society. 

We  have  not  yet,  nor  will  we  for  several  years  to  come,  if  ever,  recover  from  their 
loss.  But  there  is  another  cause  for  our  weakness  in  the  nation's  councils  of  far  greater 
magnitude.  Our  representatives  go  there  with  credentials  stained  and  tainted  with 
fraud.  If  one  of  our  representatives  essay  to  v/in  glory  and  renown  for  himself  and 
his  State  he  is  met  by  the  derisive  shout  from  the  street  urchins,  "Look  out!  the  old 
Virginia  ticket-markers  are  coming  to  the  front  again."  I  can  assure  you  all  that  just 
as  long  as  the  Virginia  elections  are  carried  by  fraud  as  they  now  notoriously  are 
carried,  Virginia  will  neither  have  or  deserve  to  have  any  weight  in  the  nation's  coun- 
cils. We  m.ust  reform.  We  must  purify  our  politics.  We  must  amend  our  election 
law  in  such  a  way  that  the  returns  of  an  election  will  indicate  public  sentiment  and 
not  continue  this  disgraceful  farce. 

The  excuse  for  all  of  this  is  that  it  is  necessary  in  order  to  get  rid  of  the  negro 
\ote,  and  some  have  gone  so  far  as  to  say  that  no  white  man  will  be  disfranchised. 

This  is  simply  to  say  that  the  very  first  thing  to  be  done  under  and  in  pursuance 
of  this  Constitution  is  to  violate  it  in  its  m.ost  vital  part.  No  intelligent  member  of 
this  body  will  contend  that  there  are  no  white  men  in  this  State  who  would  be  found 
unable  to  give  a  reasonably  clear  explanation  of  the  meaning  of  any  of  the  clauses  of 
this  document. 

It  has  been  asserted  by  several  lawyers  on  this  floor,  and  denied  by  none  that  I 
have  noticed,  as  a  principle  of  law:  That  we  cannot  do  by  indirection  or  in  a  round- 
about way  what  it  is  unlawful  for  us  to  do  directly  and  openly.  If  this  is  law  I  am  sure 
it  ought  to  be  the  law.  This  whole  suffrage  article  is  in  direct  conflict  with  the  Con- 
stitution of  the  United  States.  As  to  the  facts  in  the  case  there  will  be  no  conflict  in 
the  testimony.  Every  member  of  this  Convention,  and  every  employee  and  every  page, 
if  placed  on  the  witness  stand  and  questioned,  would  say  that  it  has  been  the  aim  and 
purpose  of  this  Convention  to  disfranchise  as  many  negroes  and  as  few  white  people 
as  possible,  and  that  it  was  in  pursuance  of  that  purpose  that  the  military  clause,  the 
father  clause,  and  the  understanding  clause  were  put  in.  It  will  not  be  pretended  that 
any  of  these  things  were  aimed  at  the  white  voters  of  the  State,  but  on  the  contrary, 
they  were  all  aimed  at  the  negroes,  and  that  the  killing  of  white  voters  was  an  un- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  TIEGIXIA. 


3181 


avoidable  incident  to  the  elimination  of  negro  supremacy  and  domination.  The  doctrine 
laid  dovrn  by  Chief  Justice  Tawney  fifty  years  ago,  that  threw  the  whole  country  into 
an  uproar,  and  consigned  its  author  to  everlasting  fame,  and  as  many  conscientious 
people  still  believe,  to  everlasting  fire — that  the  negroes  have  no  rights  that  the  white 
people  are  bound  to  respect,  seems  to  be  still  in  full  force  in  Virginia.  If  this  Con- 
stitution withstands  the  test  of  the  Supreme  Court,  to  which  it  will  most  certainly 
be  carried,  then  the  Fifteenth  Amendment  to  the  Constitution  will  be  dead  and  gone 
into  "'innocuous  desuetude,"  but  the  Fourteenth  Amendment  will  still  stand  to  vex  us, 
and  as  it  vitally  affects  the  rights  of  all  the  people  of  the  United  States,  it  will  not  be 
given  up.  It  will  never  be  conceded  by  the  representatives  of  the  Dakotas  or  Michigan 
that  one  man  in  South  Carolina  shall  have  as  much  weight  as  three  or  four  men  in  the 
Northwest.  Party  discipline  has  never  been  strong  enough  to  control  men's  voices  on 
the  basic  question — that  questicn  that  in  bygone  days  shook  this  old  Commonwealth 
to  its  very  foundation,  and  started  a  cleft  that  finally  tore  it  in  tvrain.  was  not  a  divi- 
sion on  party  line,  but  directh'  across  party  lines.  We  are  laying  the  foundation  for 
the  renewal  of  the  same  old  quarrel,  and  making  the  United  States  a  party  to  it.  As 
a  result  v:e  are  just  as  sure  to  fail  as  the  indiscreet  animal  that  attacked  the  locomo- 
tive— we  will  be  caught  on  the  cow-catcher. 

The  title  of  each  and  everj^  member  of  this  Convention  to  sit  and  vote  is  clear  and 
unquestionable.  We  v-ere  elected  by  the  people  to  represent  them  in  a  Convention 
they  neither  called  nor  wanted.  The  title  of  this  Convention  to  exist  is  shabby  in 
the  extreme,  it  is  illegitimate;  it  was  conceived  in  fraud  and  iniquity;  the  Legislature 
that  initiated  it  well  knew  that  the  people  of  the  State  did  not  want  a  Constitutional 
Convention,  for  they  had  so  voted  only  three  years  before  for  the  third  time.  They 
also  knew  that  they  could  not  be  persuaded  to  change  their  views.  They  knew  that 
the  only  way  they  could  succeed  was  by  fratid  and  chicanery.  They,  therefore,  fixed 
the  election  at  a  time  when  only  a  few  people  attended  elections,  and  they  provided  a 
shamelessly  fraudulent  ballot,  which  was  deliberately  intended  to  swindle  the  illiter- 
ate negroes  of  the  eastern  counties  into  voting  for  the  calling  of  a  Convention,  the 
avowed  object  of  which  was  to  disfranchise  them.  By  the  use  of  this  infamously,  dis- 
honest and  fraudulent  ballot  they  got  an  affirmative  vote  of  77,261 — if  I  recollect  cor- 
rectly— out  of  a  total  vote  or  registration  of  about  447,000  or  less  than  one-fifth,  and  but 
slightly  over  one-sixth,  and  fully  two-thirds  of  them  from  the  black  belt,  and  pre- 
sumably composed  largely  of  fraudulentl3'-obtalned  negro  votes.  It  would  have  been  a 
sorry  day's  work  for  the  ticket  markers  if  they  reversed  less  than  9,000  votes,  and  that 
number  would  account  for  the  plurality  of  17.000  returned  for  the  Convention — 310,000 
did  not  vote.  These  figures  have  so  often  been  spread  before  this  Convention  that  I  will 
not  repeat  them  here,  but  they  prove  conclusively,  that  the  calling  of  this  Convention 
was  a  fraud  perpetrated  upon  the  people  of  the  State.  The  act  of  the  Legislature  was 
most  disgraceful. 

As  to  the  Democratic  party  platform  pledges,  I  rate  them  but  lightly.  I  have  been 
too  long  acquainted  vrith  them  to  be  deceived.  The  Virginia  Democratic  party  is  im- 
mune to  dishonor  or  disgrace;  it  has  no  character  to  loose.  But  that  is  not  the  case 
with  this  Convention.  We  have  reputations  and  character  at  stake.  My  hope  is  we  will 
preserve  both.  V^e  have  fallen  into  a  pit,  and  there  is  one  and  only  one  safe  way  or 
practicable  way  out.  We  can  submit  our  work  to  a  fair,  free,  untrammelled  vote  of  the 
Virginia  people,  and  if  they  ratify  it,  it  will  be  the  supreme  law  of  the  land;  if  they  re- 
ject it,  the  present  Constitution,  which  has  alwa^'s  been  popular  with  them,  will  remain 
in  full  force  and  virtue,  and  we.  though  turned  down,  will  still  retain  our  .self-respect 
and  the  respect  of  our  constituents,  and  of  all  the  world. 

I  thank  you,  gentlemen,  for  your  kind  attention.  (Applause.) 

Mr.  R.  Walton  :\Ioore:  Mr.  President:  It  is  not  necessary  for  me  to  assure  the 
Convention  that  I  shall  certainly  refrain  from  assailing  the  Constitution  which  we  have 
framed,  and  that  I  shall  venture  no  criticism  of  my  brethren  who  differ  from  me  on 


3182  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  important  question  which  is  now  being  considered.  I  would  not  delay  the  work  of 
the  Convention  to  any  extent  whatever  by  saying  a  single  word,  except  that  it  seems 
to  me  the  proposition  which  is  offered  here — the  proposition  which,  according  to  the 
public  press  is  likely  to  carry — the  proposition  that  the  new  instrument  shall  be  pro- 
claimed instead  of  being  submitted,  is  an  extraordinary  one,  against  precedent,  against 
promises,  and  of  doubtful  legality. 

I  affirm  that  it  is  against  precedent,  and  this  I  do  with  great  respect  for  the  opin- 
ions of  other  gentlemen,  and  particularly  for  the  opinions  of  the  gentleman  from 
Campbell  (Mr.  Daniel)  who  opened  this  debate.  I  understood  him  to  say  that  prece- 
dent overwhelmingly  sanctions  proclamation.  In  that  connection  he  went  to  the  point 
of  citing  the  Federal  Constitution,  and  what  occurred  in  putting  it  into  operation.  Mr. 
President,  what  a  mistake  is  this! 

The  Constitution  was  framed  by  a  Convention  made  up  of  delegates  from  the  thir- 
teen States.  Their  constituents  were  the  States.  There  was  never  any  thought  of 
proclaiming.  The  instrument  was  sent  back  to  the  constituent  bodies,  and  by  every 
one  of  them  it  was  passed  upon  deliberately.  What  occurred  in  Virginia?  The  Legis- 
lature met  and  provided  that  the  people  in  their  cities  and  counties  should  elect  a  con- 
vention to  say  whether  it  should  be  ratified  or  rejected.  That  convention  was  elected 
and  met  in  this  city,  on  Shockoe  Hill,  and  a  great  debate  took  place,  developing  a  great 
diversity  of  sentiment.  Madison  and  Marshall  led  upon  the  one  side,  and  Mason  and 
Henry  upon  the  other  side.  The  delegates  from  Campbell  voted  against  the  Consti- 
tution, and  the  delegates  from  Fairfax  in  favor  of  the  Constitution,  and  finally,  after 
a  lapse  of  some  twenty-five  days,  by  a  narrow  majority  of  less  than  ten,  it  was  rati- 
fied with  amendments.  That,  Mr.  President,  is  a  mighty  precedent  against  the  submis- 
sion view.  In  this  State  the  precedents  are  in  the  same  line,  except  in  1776,  when  the 
first  Constitution  was  adopted.  That  was  on  the  verge  of  revolution,  when  men  were 
arming  for  a  memorable  struggle,  and  there  was  no  opportunity  for  the  people  to  say 
whether  they  approved  or  disapproved.  But  since  1776,  without  variableness  or  shadow 
of  turning,  there  has  been  submission  of  the  State  Constitutions.  During  the  last  sixty 
3^ears  numberless  Constitutions  have  been  framed  by  the  States  of  the  "Union,  and  not 
more  than  six  proclaimed,  including  those  recently  adopted  in  the  States  south  of  us. 
Il  seems  to  me  that  not  the  proclaimers,  but  we,  the  submissionists,  are  standing  by 
the  precedents. 

How  has  this  question  been  regarded  by  statesmen  and  by  the  students  of  our 
system  of  government?  The  other  day  it  was  confessed  here  in  the  outset  of  the  de- 
bate, that  upon  our  side  is  the  authority  of  Jefferson.  Upon  the  same  side  Judge  Cooley 
was  placed.  All  the  foremost  American  writers  were  placed  on  the  same  side,  and 
upon  that  side  -must  be  placed  the  foreigners  who  have  investigated  and  applauded 
our  institutions.  Bryce,  in  his  American  Commonwealth,  describes  a  Constitutional 
Convention  as  an  advisory  rather  than  a  sovereign  body,  and  then  proceeds  to  say: 

A  State  Constitution  is  really  nothing  but  a  law  made  directly  by  the  people,  voting 
at  the  polls  on  a  draft  submitted  to  them. 

That  is  the  impression  universally  received  in  England. 

Cross  the  channel  and  that  is  found  to  be  the  impression  received  in  continental 
Europe. 

I  have  examined  the  recently-published  works  of  Charles  Bourgeand,  a  member  of 
the  law  faculty  of  the  University  of  Paris,  on  the  adoption  and  amendment  of  constitu- 
tions in  Europe  and  America,  in  which  he  discusses  the  matter  elaborately.  He  and 
Bryce  would  be  astonished  that  proclamation  should  be  contemplated  in  a  State  rank- 
ing like  Virginia. 

But  gentlemen  will  say  that  this  is  an  unusual  and  critical  juncture,  and  that  prece- 
dents and  opinions  must  be  discarded.  They  say  we  will  blaze  a  new  course  and  we 
will  proclaim,  whatever  precedents  may  dictate  and  whatever  men  may  think.  To 


DEBATES  or  THE  COXSTITrTIOXAL  COXYEXTIOX  OF  TIEGIXIA. 


31S3 


those  gentlemen  the  legal  right  should  be  clear.  Are  they  sure  thai  -^hen  they  have 
proclaimed  this  Constitution,  the  State  courts  will  uphold  their  action? 

I  lay  this  down  as  a  principle  which  I  believe  to  be  sound  and  as  a  principle  which 
I  believe  the  courts  will  adopt,  when  this  matter  is  presented  to  them.  If  there  has 
been  a  valid  act  of  the  General  Assembly  of  Virginia  providing  for  submission,  that  act 
must  be  obeyed. 

I  state  what  I  believe  cannot  be  controverted:  That  when  the  Legislature  of  a 
State  has  directed  that  the  instrument  be  submitted,  the  instrument  must  be  sub- 
mitted; and  if  it  be  not  submitted,  the  action  of  the  Convention  cannot  stand. 

Says  Oberholtzer  in  his  treatise  on  the  referendum: 

All  the  constitutions  have  not  been  referred  to  the  people,  but  there  seems  to  be 
no  instance  in  which  the  Constitution  was  not  so  referred  vrhen  the  Legislature's  direc- 
tions to  the  Convention  have  been  imperative. 

In  the  case  of  Quinlan  vs.  the  Houston  and  Texas  Central  Railroad  Company,  in 
89th  Texas,  the  court  said: 

We  are  of  opinion  that  when  the  Convention  is  called  to  frame  a  Constitution, 
which  is  to  be  submitted  to  the  popular  vote  for  adoption,  it  cannot  pass  ordinances 
and  give  them  validity  without  submitting  them  to  the  people  for  ratification  as  a  part 
of  the  Constitution. 

That  is  good  and  so-'ond  doctrine. 

It  would  be  monstrous,  Mr.  President,  if  a  valid  legislative  act  reciuiring  submis- 
sion should  be  or  could  be  disregarded. 

But  gentlemen  contend  that  the  act  of  February  16,.  1901,  which  provides  for 
the  stibmission  to  the  people  of  Virginia  of  this  instrument  vrhich  we  have  framed,  is 
not  a  valid  legislative  act.  Let  us  see.  Vhat  is  the  General  Assembly  of  Virginia? 
The  gentlemen  have  argued  this  matter  as  if  you  could  set  the  General  Assembly  of 
Virginia  in  antagonism  to  the  people  of  Virginia.  You  cannot  do  it.  The  people  of 
Virginia,  in  their  legislative  capacity,  are  present  in  the  General  Assembly  when  it 
is  in  session  here  in  this  Capitol.  The  General  Assembly  passed  this  act.  It  passed 
the  act  back  of  that  of  I^.Iarch  5th.  1900,  proposing  to  the  people  for  their  vote  the 
Qtiestion  whether  there  should  be  a  Convention  '"to  revise  the  Constitution  and  to 
amend  the  same."  That  vote  was  taken,  and  there  was  a  majority  in  the  affirmative. 
Then  what?    The  General  Assembly  then  had  many  courses  open  to  it. 

As  was  said  by  the  Pennsylvania  court  of  a  similar  situation,  in  Wells  vs.  Bain, 
(75  Pa.)  it  had  the  right  or  the  power  to  decline  to  take  one  step  further. 

Somebody  suggests  that  inaction  would  have  been  revolution. 

But  can  the  people  revolt  against  themselves?  Can  there  be  any  revolution  of 
that  character.  Yes,  Mr.  President,  the  Legislature  could  have  folded  its  arms  like 
the  white-clad  figure  in  the  picture  which  hangs  in  the  great  hall  at  the  ITniversity, 
looking  neither  to  the  right  nor  the  left,  and  remained  indifferent  and  inactive. 

Mr.  Meredith:  VTould  not  such  an  act  as  that  be  revolutionary,  and  if  not,  how 
would  you  characterize  it? 

Mr.  R.  Walton  Moore:  I  would  characterize  it  as  the  expression  of  the  people  of 
Virginia  in  their  legislative  capacity.  There  might  be  various  reasons  why  the  Legis- 
lature would  deem  it  best  to  decline  to  act. 

I  believe  the  Governor,  in  his  proclamation,  calling  the  Legislature  into  extra  ses- 
sion, the  very  session  which  adopted  the  act  of  February,  1901,  said  that  he  believed 
that  it  was  the  wish  of  the  majority  of  the  people  of  Virginia  that  an  extra  session 
should  be  held.  He  indicated  simply  his  belief,  despite  the  fact  that  a  vote  had  been 
had. 

Suppose  the  General  Assembly  had  been  of  the  opinion  that  there  was  not  a  real 
majority  of  votes  cast  in  favor  of  the  Convention,  or  suppose  it  had  been  of  the  opin- 


3184 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


ion  that  the  vote  was  too  slight  to  justify  a  Convention,  or  suppose  conditions  had 
changed  so  as  to  justify  inaction,  and  to  make  a  convention  undesirable,  who  will  claim 
that  a  refusal  to  provide  for  convention  would  have  been  revolutionary? 

Mr.  Meredith:  I  did  not  refer  to  exceptional  instances,  such  as  you  mention.  But 
suppose  a  convention  is  called  by  the  people,  do  you  claim  that  the  Legislature  can 
say:  "V/e  will  not  call  it" — and  not  be  revolutionary? 

Mr.  R.  Walton  Moore:  Yes,  sir;  and  the  Pennsylvania  court  says  so.  Judge 
Agnew  ,  in  his  opinion  in  the  case  of  Wells  vs.  Bain,  as  I  understand,  says  that,  with- 
out limitation  or  reservation. 

Mr.  Meredith:  Would  you  say,  then,  that  one  department  was  revolutionary  in  its 
acts  towards  the  people? 

Mr.  R.  Walton  Moore:  I  can  imagine  such  a  case,  but  to  fail  or  refuse  to  provide 
for  a  Convention  would  not,  in  my  judgment,  be  such  a  case. 

Mr.  President,  the  Legislature  might  have  done  what  was  done  in  Louisiana,  and 
in  terms  directed  that  the  Constitution,  when  framed,  should  be  proclaimed. 

Or  it  might  have  done  what  was  done  in  Delav/are,  and  contented  itself  with  the 
expression  of  a  desire  that  there  should  be  submission.  Or  it  might  have  done  v/hat 
was  done  in  Mississippi  and  in  South  Carolina  and  left  the  entire  matter  to  the  discre- 
tion of  the  Convention.  But  it  took  none  of  these  courses.  It  is  said  by  statute,  that 
this  Constitution,  when  framed  should  be  submitted  to  the  people  of  Virginia  for  rati- 
fication or  rejection. 

Mr.  Meredith:  Suppose  it  had  said  nothing  upon  the  subject,  what  would  have 
been  the  power  of  the  Convention? 

Mr.  R.  Walton  Moore:  If  it  had  said  nothing,  I  am  not  arguing  that  the  Con- 
vention would  be  without  the  legal  power  to  proclaim.  But  my  proposition  is  that  if 
you  have  a  legislative  act,  and  if  it  be  a  valid  legislative  act,  you  are  bound  to  follow  it, 

Mr.  Green:  Will  the  gentleman  allow  me  to  ask  him  whether,  under  the  act  of 
1901,  this  Convention  would  have  the  right  to  submit?  Does  not  the  act  provide  that 
we  shall  leave  it  to  the  Legislature  to  determine  how  and  when  it  shall  be  submitted? 

Mr.  R.  Walton  Moore:  I  suggest  to  the  gentleman  from  Danville,  with  the  greatest 
respect  and  deference,  that  he  sticks  in  the  bark.  The  substantial  thing  is  that  it 
shall  be  submitted.    It  is  not  so  important  what  tribunal  orders  the  submission. 

Mr.  Green:    You  say  we  are  bound  by  the  acts  of  the  Legislature? 

Mr.  R.  Walton  Moore:  Yes,  we  are  bound  by  the  substantial  provisions  of  the  act 
of  the  Legislature. 

Mr.  Greene:  One  of  the  substantial  provisions  of  that  act  is  that  we  shall  not 
submit  it  at  all,  but  shall  leave  it  to  the  Legislature  to  determine  when  and  where  it 
shall  be  submitted. 

Mr.  R.  Walton  Moore:  That  is  only  in  case  the  Constitution  is  not  ready  for  sub- 
mission at  a  certain  date. 

Mr.  Green:    But  it  was  not  ready  by  that  date. 

Mr.  R.  Walton  Moore:  After  that  date,  according  to  the  act,  it  shall  be  sub- 
mitted at  a  time  and  place  to  be  determined  by  the  General  Assembly;  but  there  is 
no  court  on  earth  that  would  say  it  was  not  properly  submitted  if  the  people  were  al- 
lowed to  vote  upon  it,  whether  the  order  of  submission  were  made  by  the  Convention 
or  made  by  the  General  Assembly.  Whether  that  be  a  good  position  or  not,  it  is  the 
position  I  must  take  in  replying  to  the  question  of  my  honored  friend  from  Danville. 

Now,  Mr.  President,  the  submission  act  of  1901  was  in  accordance  with  Virginia 
precedents. 

The  act  which  preceded  the  Convention  of  1829  proposed  to  the  people  that  they 
should  vote  upon  the  question  as  to  whether  the  Constitution  of  1776  should  be  amended 
or  not.  My  distinguished  friend  from  Campbell  (Mr.  Daniel)  the  other  day  argued 
from  the  language  of  the  question  that  was  propounded  by  the  act  of  1900,  that  you 
must  necessarily  conclude  that  the  instrument  was  to  be  proclaimed,  because  the  ques- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIKGIXIA. 


3185 


tion  was,  "Shall  a  Convention  be  called  to  revise  the  Constiiution  and  amend  the 
same."  He  said  the  word  "amend"  or  proclamation.  And  yet  the  act  of  lS27-'28  pro- 
pounded to  the  people  of  Virginia  the  question  whether  they  should  have  a  Conven- 
tion to  amend  the  Constitution,  and  when  they  said  yes,  the  Legislature  did  not  assume 
that  amendment  meant  proclamation,  but  passed  another  act  calling  the  Convention 
together,  and  providing  that  when  the  Constitution  vv-as  framed  by  that  Convention  it 
should  be  submitted  to  the  people  for  ratification  or  rejection. 

We  are  not  concerned  about  the  question  that  was  propounded  in  1900.  Our  main 
concern  is  about  the  submission  clause  in  the  act  of  the  following  year. 

Was  it  within  the  competency  of  the  General  Assembly  to  write  submission  into 
the  latter  act?  If  it  was  not,  then  the  Convention  is  free.  If  it  was  a  valid  act,  then, 
I  repeat,  we  must  obey  it,  and  send  this  instrument  which  we  have  framed  back  to  our 
constituents.  Vv^hy  was  it  not  a  valid  act?  Was  it  restrained  by  any  provision  of  the 
Underwood  Constitution?  W^hy,  neither  in  1900  nor  in  1901,  did  the  General  Assembly 
in  dealing  with  this  subject  make  any  allusion  to  the  Underwood  Constitution?  I 
deny  that  the  General  Assembly,  in  arranging  for  a  Convention,  was  confined  to  the 
methods  provided  by  that  Constitution.  I  deny  that  those  methods  were  exclusive  and 
exhaustive. 

But  if  this  is  incorrect,  and  if  the  General  Assembly  was  observing  that  Constitu- 
tion strictly,  yet  it  retained  all  the  powers  not  prohibited.  It  retained  the  right  to 
direct  submission. 

Mr.  Wysor:  Was  not  the  act  of  the  General  Assembly  exactly  in  pursuance  of  the 
provision  of  the  Constitution? 

Mr.  R.  Walton  Moore:  I  am  arguing  that  even  if  the  Legislature  was  bound  by 
and  strictly  followed  the  Underwood  Constitution,  there  is  not  one  line  in  that  in- 
strument which  prevented  the  Legislature  from  ordering  submission  to  the  people  of 
Virginia. 

Mr.  Meredith:  I  understood  you  to  say  just  now  that  if  the  act  of  the  General  As- 
sembly had  said  nothing  about  submission,  this  Convention  could  have  exercised  its 
discretion? 

Mr.  R.  Walton  Moore:    Yes,  sir. 

Mr.  Meredith:  The  Constitution  says  nothing  about  submission.  ^Miy  cannot  we 
exercise  the  same  discretion? 

Mr.  R.  Walton  Moore:  Because  the  General  Assembly,  in  which  the  people  speak, 
possesses  the  constitutional  authority  to  order  submission,  and  did  order  it,  and  there 
is  no  escape  from  it.  The  people  sent  you  here  under  that  act.  The  people  sent  you 
here  under  the  act  of  the  Legislature,  v;hich,  if  it  , be  valid,  compels  us  to  submit  this 
Constitution. 

Xow,  Mr,  President,  I  was  about  to  remark  that  there  is  some  authority  upon  this 
point.  There  is  a  very  interesting  case  in  Kentucky — the  case  of  Miller  vs,  Johnson, 
15  L,  R,  A,  524,  In  that  State  the  act  required  submission.  There  were  amendments 
framed  and  proclaimed,  and  as  a  case  was  carried  to  the  highest  Kentucky  court.  That 
court  was  composed  of  four  judges.  Not  a  single  one  of  them  held  that  the  legislative 
act  was  nugatory,  and  could  be  disregarded.  No  judge  in  this  country  has  ever  said 
anything  of  that  sort.    Three  of  the  judges  of  that  court  said  this: 

It  is  a  case  where  a  new  Constitution  has  been  formed  and  promulgated  accord- 
ing to  the  forms  of  the  other.  Great  interests  have  already  arisen  under  it;  impor- 
tant rights  exist  by  virtue  of  it;  persons  have  been  convicted  of  the  highest  crimes 
knovcn  to  law,  according  to  its  provisions;  the  political  power  of  the  government  has 
in  many  wa:rs  recognized  it;  and  under  such  circumstances  it  is  our  duty  to  treat  and 
regard  it  as  a  valid  Constitution,  and  not  the  organic  law  of  our  Commonwealth. 

Incidentally,  let  me  remark  that  I  cannot  understand  the  logic  of  the  gentlemen 
who  tell  us,  if  they  rest  upon  that  decision,  that  the  subsequent  conduct  of  the  political 
branch  of  the  government  can  validate  a  Constitution,  and  yet  that  we  are  not  bound 
by  an  antecedent  act  of  the  political  branch. 


3186 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIKGINIA. 


Mr.  Meredith:  Is  it  not  a  principle  of  law  that  after  a  Constitution  has  been 
recognized  by  the  political  body,  it  ceases  to  be  a  judicial  question,  and  becomes  a 
political  question? 

Mr.  R.  Walton  Moore:  Yes,  sir;  and  that  shows  the  weight  attaching  to  the  action 
of  the  legislative  department  in  our  system  of  government. 

Mr.  Walker:  Was  it  necessary  in  order  for  the  court  to  render  that  decision,  to 
say  whether  the  Constitution  was  valid  or  not? 

Mr.  R.  Walton  Moore:  No;  but  I  will  say  to  my  friend  that  while  there  was  not 
a  judge  who  thought  the  submission  act  should  have  been  ignored,  the  Chief  Justice 
of  that  court,  Judge  Bennet,  delivered  a  dissenting  opinion,  in  which  he  states  the 
views  for  which  I  contend. 

After  adverting  to  the  fact  that  the  old  Constitution  contained  no  provision  giving 
the  Legislature  the  power  to  require  submission  of  its  work  to  the  people,  he  goes  on 
to  say: 

The  fact  that  the  instrument  is  silent  upon  that  subject  means  that  the  people  did 
not  surrender  their  right.  It  is  upon  the  principle  that  the  right  of  the  people  is  in- 
herent, inalienable,  indestructible,  except  as  they  may  surrender  that  right  in  forming 
their  government;  that  when  the  Constitution  is  silent  upon  any  subject  their  right 
has  not  been  surrendered,  and  the  power  of  the  Legislature  is  supreme  in  reference 
thereto.  And  as  said,  the  question  as  to  whether  or  not  right  has  been  surrendered 
should  not  be  made  to  depend  upon  construction  or  uncertain  sound,  but  it  should  be 
expressed  in  unequivocal  terms.  By  the  silence  of  the  Constitution  the  right  of  the 
people  to  require  the  submission  was  not  surrendered,  but  was  reserved  by  them  as 
their  inherent  and  inalienable  right  which  they  could  exercise  directly  by  approving 
or  rejecting  the  instrument  or  by  conferring  that  right  upon  their  delegates  as  agents. 

The  Constitution  being  silent  upon  the  subject  of  submission,  the  povs^er  of  the 
Legislature  as  the  people's  agents,  is  supreme  upon  that  subject;  and  they  had  a  per- 
fect right  to  provide  as  they  did,  that  the  Convention  must  submit  their  work  to  the 
people  for  ratification  or  rejection,  or  they  might  have  provided  that  they  should  have 
the  absolute  power  upon  that  subject.  They  could  do  this  as  said,  because  their 
power  was  supreme  upon  that  subject. 

Now,  if  the  submission  act  of  1901  was  valid — and  I  challenge  authority  to  the 
contrary — are  not  gentlemen  gravely  doubtful,  whether  the  courts  of  the  State  will 
sustain  them  in  proclaiming  the  Constitution?  Are  not  your  apprehensions  aroused  by 
the  attitude  of  able  and  eminent  lawyers?  A  circuit  judge  of  learning  and  experience 
has  risen  here,  and  upon  his  responsibility  as  a  member  of  this  body,  declared  that  he 
considers  proclamation  illegal.  A  most  capable  lawyer,  who  recently  occupied  a  place 
in  the  Supreme  Court  of  Appeals,  has  uttered  a  warning  through  the  newspapers. 

There  are,  I  believe,  delegates  in  this  Convention — accomplished  lawyers — who  in- 
tend to  vote  for  proclamation  under  the  stress  of  what  is  claimed  to  be  a  public  de- 
mand, who  are  oppressed  with  doubt.  Are  we  going  to  take  a  step  that  may  prove 
fatal? 

My  friend  from  Prince  William  this  morning  proposed — and  he  is  a  proclamation- 
ist —  a  resolution  here  to  obtain  a  decision  of  the  highest  court  of  the  State  upon  the 
pending  question. 

If  gentlemen  are  bent  on  proclaiming,  that  might  be  the  safest  and  wisest  course 
to  take. 

I  said  in  the  outset  that  I  should  indulge  in  no  unfriendly  criticism  of  individuals. 
There  are  men  here,  the  latchets  of  whose  shoes  I  am  not  worthy  to  unloose.  I  can 
only  speak  for  myself.  I  must  admit  candidly,  that  even  if  the  highest  court  of  the 
State  held  proclamation  to  be  legal,  I  could  not  vote  that  way.  Was  it  not  Edmund 
Burke,  Mr.  President,  who  said  in  substance  in  his  great  speech  on  "Affairs  in  America:" 
"It  is  not  what  a  lawyer  tells  me  that  I  may  do;  but  it  is  what  my  conscience  tells  me  I 
must  do?" 

In  this  matter  my  conscience  is  bound. 


DEBATES  OP  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIKGIXIA. 


3187 


In  the  "^^-inter  of  1900  there  ^as  agitation  for  a  Constitutional  Convention,  the  Gen- 
eral Assembly  being  in  session.  This  is  a  goTernment  party.  The  General  As- 
sembly v^"as  controlled  by  the  Democratic  party,  and  a  caucus  of  the  members  be- 
longing to  that  party  was  held  in  this  hall,  and  the  Convention  movement  approved. 
Except  for  that  caucus  we  would  not  be  here  novs*.  A  little  later  on,  when  it  was  still 
doubtful  how  the  people  stood,  the  Democratic  party,  embracing  a  great  majority  of 
the  white  men  of  Virginia,  owning  a  great  part  of  the  substance  of  Virginia,  met  in 
Norfolk  and  adopted  a  platform.  At  Norfolk,  so  far  as  I  then  knew,  there  was  no 
such  construction  placed  upon  the  platform  as  has  since  been  attempted.  The  plat- 
form, as  interpreted  by  the  rank  and  file  of  the  delegates  to  that  Convention,  and  by 
the  people  of  the  State  generally,  promised  that  if  the  people  would  vote  for  a  Con- 
stitutional Convention,  the  instrument  framed  by  it  should  be  submitted.  Away  with 
your  delicate,  refined  and  attenuated  construction  of  that  platform! 

It  was  a  solemn  promise.  It  was  a  vital  and  necessary  promise.  You  could  not 
have  come  here  to  this  Capitol  and  worked  your  splendid  will  upon  the  structure  of  our 
government  if  that  promise  had  not  been  made.  It  was  a  general  promise.  It  was  a 
promise  made  either  to  the  State  of  Virginia,  or  to  the  Democrats  of  Virginia,  and  I 
respectfully  urge  that  a  general  promise  to  the  State  cannot  be  released  except  by 
the  general  action  of  the  people  of  the  State,  and  that  a  general  promise  to  the  Demo- 
crats of  the  State  is  incapable  of  being  released  except  by  the  general  action  of  the 
Democratic  party. 

I  suppose  no  man  is  more  fortunate  in  enjoying  good  relations  with  his  friends 
and  his  neighbors  of  his  home  county  than  I  am.  Xo  man,  certainly,  is  more  be- 
"  holden  to  those  among  whom  he  lives,  and  no  man  has  more  respect  and  affection  for 
his  cotmty  people  than  I  have;  but  when  some  of  them,  within  the  last  few  weeks 
advised  they  thought  of  requesting  me,  in  a  formal  wa^',  to  vote  to  proclaim.  I  said 
to  them:  I  cannot  consent  that  local  action  shall  release  me  from  such  general  obli- 
gations as  I  have  assumed.  It  is  impossible  that  the  people  of  Fairfax  shall  release 
me  from  the  promise  I  made  to  the  people  of  Virginia,  or  at  least  to  the  Democrats 
of  Virginia. 

Mr.  Quarles:  If  the  Norfolk  Convention  had  promised  to  proclaim  the  Constitu- 
tion, would  you  vote  to  proclaim,  believing  it  to  be  unlawful? 

Mr.  R.  Valton  Moore:  Entertaining  the  legal  doubts  I  have  upon  that  subject,  I 
could  not  vote  for  it. 

:\Ir.  Wysor:  Do  you  think  there  would  be  a  Constitutional  Convention  if  the  Nor- 
folk Convention  had  not  made  that  promise? 

Mr.  R.  Walton  Moore:  No,  sir.  Everybody  knows  there  would  have  been  no  Con- 
vention. Upon  the  banner  of  the  Convention  movement  was  stamped  the  promise  that 
was  made  at  Norfolk,  and  except  for  that  promise  the  banner  would  have  long  ago 
have  fallen  from  the  hands  of  those  who  were  carrying  it. 

Mr.  Walker:  The  gentleman  says  that  the  Democratic  party  has  made  this  a 
party  issue.  If  they  had  said  nothing  about  proclamation  or  submission,  in  the  legis- 
lative act.  would  it  not  still  have  been  a  party  issue? 

Mr.  R.  Walton  :\Ioore:  I  do  not  think  there  would  have  been  any  Convention.  I 
know  many  men  in  my  own  section,  after  the  Norfolk  Convention  was  held,  voted  for 
this  Convention  upon  my  statement  that  we  had  resolved  in  favor  of  submission,  and 
that  they  would  have  an  opportunity  to  pass  upon  the  Constitution. 

Mr.  Thorn:  Could  the  resolution  making  it  a  party  question  have  been  carried 
through  the  Norfolk  Convention  without  a  pledge  of  submission? 

Mr.  R.  Walton  ^Moore:    It  was  supposed  not. 

Mr.  Zvleredith:  Do  I  tmderstand  you  to  contend  that  where  there  has  been  a 
party  resolution  of  a  party  caucus  that  the  Convention  is  bound  to  follow  that  as  the 
best  assurance  from  the  people  that  they  do  not  want  it  carried  out? 

Mr.  R.  Walton  Moore:  No,  sir;  but  what  legal  method  have  you  taken  to  get  the 
assurance  of  the  people  that  they  want  you  to  proclaim? 


3188  DEBATES  OE  TELE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Meredith:    Do  you  say  we  are  bound  by  the  caucus? 

Whether  I  am  satisfied  as  to  what  my  people  want,  and  whether  you  are  satisfied 
ic  another  question.  But  do  you  contend  that  the  Convention  is  bound  by  a  party 
caucus  when  the  people  have  asked  them  not  to  follow  the  resolution  of  the  caucus? 

Mr.  R.  Walton  Moore:  If  the  people  are  interrogated,  and  answer  so  as  to  avoid 
all  possible  doubt  or  misunderstandings,  I  cannot  say  that  I  would  assert  that  we  are 
still  bound.  But  you  have  not  asked  the  people,  and  you  cannot,  in  a  government 
like  this,  invite  an  expression  of  the  people  except  in  one  way.  You  can  only  get  the 
sense  of  the  people  by  sending  this  Constitution  to  them.  There  have  been  small 
meetings  in  Richmond.  There  have  been  larger  meetings  in  some  other  sections  of 
the  State,  but  most  of  them  have  been  very  small.  The  people  do  not  knov/  what  we 
have  done,  and  yet  it  is  assumed  that  they  have  risen  up  in  solid  phalanx,  and  ap- 
proved of  the  Constitution  to  the  extent  of  clamoring  for  proclamation. 

Now,  Mr.  President,  I  have  gone"  further  than  I  had  intended.  I  hope  it  is  not  neces- 
sary for  me  to  assure  anybody  that  I  am  the  friend  of  the  Constitution,  and  deeply 
interested  in  its  becoming  operative.  It  has  cost  us  too  much  to  be  allowed  to  fail. 
It  has  involved  too  much  outlay  of  the  public  treasure;  it  has  involved  personal  sacri- 
fices of  too  serious  a  nature;  we  have  spent  here  almost  a  solid  year;  we  have  em- 
ployed upon  this  work  "many  a  grim  and  haggard  day,  many  a  night  of  starless  skies." 
The  new  Constitution  is  the  coinage  of  our  energies  and  our  aspirations.  It  is  the 
product  of  our  best  abilities  and  of  our  profoundest  hopes.  I,  for  one,  as  its  friend 
and  its  advocate,  will  v/eep  to  witness  its  defeat  in  any  forum;  but  as  its  friend  and  its 
advocate,  I  will  submit  it  without  any  misgivings  to  the  present  electorate. 
That  electorate  is  not  ideal,  it  is  not  satisfactory;  we  are  here  to  reform  it;  and  yet 
it  is  the  electorate  of  a  long  period  of  years.  It  has  given  to  us  a  body  of  policies  that 
have  repaired  the  ravages  and  wreck  of  a  great  civil  war.  It  has  given  to  us  a  long 
line  of  legislatures  and  governors,  and  senators  and  judges,  measuring  up  to  the  highest 
standards.  Even  the  present  electorate  is  ready,  if  this  Constitution  is  submitted  by 
the  overwhelming  voice  of  its  white  members — Democratic  and  Republicans — to  yield  it 
their  willing  approval. 

Mr.  President,  personally,  it  would  be  much  more  agreeable,  indeed  it  would  be  a 
sort  of  personal  luxury,  if  we  could  proclaim  it.  It  would  save  a  great  deal  of  anxiety, 
trouble  and  effort,  but  we  belong  to  a  race  which  has  never  shirked  anxiety  or  labor — 
to  a  race  that  has  developed  by  contest  upon  all  the  battle-fields  of  human  experience. 
Thus  it  has  been  in  Virginia.  And  now,  if  need  be,  let  there  be  another  strenuous  con- 
test in  Virginia.  Let  it  come,  and  let  us  win,  as  we  will  surely  win,  a  victory  which,  Mr. 
President  and  gentlemen  of  the  Convention,  will  be  unattended  by  any  criticism  or  dis- 
credit, and  unattended  by  any  intimation  or  trace  of  dishonor.    (Great  applause.) 

Mr.  Carter:  Mr.  President  and  gentlemen  of  the  Convention:  In  the  earlier  days 
of  this  Convention  I  took  occasion  to  give  my  views  at  some  length  upon  the  main 
question  now  at  issue  before  us,  that  is,  upon  the  power  and  legal  right  of  this  body 
to  proclaim  its  work,  without  further  reference  to  the  people.  I  do  not  know  that  I 
could  add  anything  fo  what  I  then  said,  if  I  were  to  try.  I  simply  want  to  say,  along 
that  line,  that  since  then,  in  all  that  I  have  heard  and  in  all  that  I  have  read  on  the 
subject,  I  have  heard  and  read  nothing  to  cause  the  slightest  doubt  in  my  mind  as 
to  the  correctness  of  the  position  I  then  took.  I  do  not  think  that  this  is  a  case  in 
which  it  is  necessary  for  those  who  think  as  I  do,  that  we  have  the  right  to  proclaim, 
to  fortify  themselves  by  precedents.  I  do  not  think  it  necessary  to  go  back  to  what  has 
been  done  by  other  conventions  at  other  times,  and  under  different  conditions.  I 
think  the  path  that  is  blazed  for  us,  in  the  light  of  the  act  under  which  we  are  called 
together,  is  a  plain  one,  and  that  the  power  conferred  upon  us  is  so  clear  and  so  plain 
that  it,  of  itself,  contains  all  of  the  authority  we  need.  I  say  this  without  conceding 
that  these  authorities  and  examples  which  the  gentleman  have  cited  here  are  against  us. 
I  do  not  mean  to  differ  from  the  gentleman  from  Campbell,  who  states  that  the  prece- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA.  3189 


dents  in  Virginia  show  that  a  convention  has  the  right  to  proclaim.  We  are  upon  dif- 
ferent sides  of  this  question,  and  yet  he  who  leads  in  the  discussion  of  submission  con- 
cedes the  legal  power  of  this  Convention  to  proclaim.  The  gentleman  from  Fairfax 
(Mr.  ]},Ioore),  who  has  just  closed  his  elociuent  and  able  address,  brings  himself  up 
to  the  point  of  doubting  that  povver;  that  is  all.  He  does  not  say,  sound  lawyer  that 
he  is,  that  the  power  is  not  ours,  but  he  says  there  are  grave  doubts  about  it,  because, 
among  other  things,  a  distinguished  judge  in  our  State  claims  it  does  not  exist.  The 
gentleman  from  TCinchester  (Mr.  Harrison)  is,  I  believe,  the  only  man  having  at  heart 
the  desire  to  see  ihis  Constitution  adopted,  who  has  come  here  and  said  that  we  have 
not  the  power*  to  proclaim  it.  He  makes  that  statement,  and  so  far  as  my  recollection 
goes,  he  is  the  only  one  who  does  make  it,  except  those  v.ho  think  it  is  a  work  of  in- 
iquity, and  ought  to  be  submitted. 

The  gentleman  from  Winchester  reads  from  the  English  Encyclopedia  of  Law  the 
authority  upon  vrhich  he  relies  in  this  case: 

A  Constitutional  Convention  untrammelled  by  conditions  imposed  by  authority  call- 
ing the  Convention  has  power  to  enact  a  nev,"  Constitution  to  go  into  effect,  without 
being  submitted  to  the  people  for  ratification.  But  where  the  act  from  which  a  Con- 
vention derives  its  powers  provides  for  the  submission  of  the  Convention's  work  to  the 
people  in  the  specific  manner,  the  Convention  has  no  power  to  provide  for  its  submis- 
sion in  a  different  manner,  and,  of  course,  where  such  act,  where  the  Constitution  itself 
requires  submission  to  the  people,  it  must  be  so  submitted,  and  only  becomes  operative 
upon,  the  approval  of  the  electors. 

He  then,  Mr.  President,  plants  himself  squarely  and  fairly  upon  the  proposition 
that  unless  the  powers  of  the  Convention  are  restricted  by  the  act  that  called  the  Con- 
vention into  being,  it  has  plenary  and  full  authority.  That  is  more  than  I  need  claim 
iu,,this  controversy.  There  is  the  gentleman  who  first  and  foremost,  and  almost  alone 
in  this  debate,  takes  the  ground  that  this  Convention  has  not  the  legal  right  to  amend 
and  revise  the  Constitution,  admitting  that  it  had  the  right  unless  that  right  was 
taken  from  it  hy  the  act  which  called  the  Convention,  and  reading  authorities  to  sus- 
tain his  position.  The  Constitution  of  Virginia,  now  in  existence — the  Underwood 
Constitution — provides  two  methods  for  changing  the  Constitution.  One  method  is  for 
the  Legislature  to  propose  amendments  in  two  consecutive  sessions  to  the  people,  and 
those  amendments  become  a  part  of  the  Constitution  upon  being  voted  for  by  the 
people. 

The  other — I  want  to  read  from  the  Constitution: 

At  the  general  election  to  be  held  in  the  year  1888,  and  in  each  twentieth  year 
thereafter,  and  also  at  such  time  as  the  General  Assembly  may,  by  law  provide,  the 
question,  "Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the 
same?"  shall  be  decided  by  the  electors  qualified  to  vote  for  members  of  the  General 
Assembly;  and  in  case  a  majority  of  the  electors  so  qualified  voting  at  such  election 
shall  decide  in  favor  of  a  Convention  for  such  purpose,  the  General  Assembly  at  its 
next  session, 

Now,  see  the  language  there — 

shall  provide — 

It  is  mandatory —  ■  ' 

by  law  for  the  election  of  delegates  to  such  Convention. 

Those  are  the  Constitutional  provisions  which  bound  the  Legislature  in  Virginia 
at  the  time  the  initial  acts  were  taken  in  this  case.  "But,"  says  my  friend  from  Fair- 
fax, "no  allusion  is  made  in  the  act  calling  this  Convention  to  the  Constitution";  and 
he  would  have  you  take  the  ground  that  this  act  was  not  passed  in  pursuance  of  that 


3190  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

power  and  under  the  provisions  of  the  Constitution.  Let  us  see.  If  called  under  the 
constitutional  provision  the  Constitution  would  have  to  be  submitted.  Let  us  see,  Mr. 
Chairman  and  gentlemen  of  the  Convention,  whether  or  not  there  is  internal  evidence 
in  this  act  that  It  did  follow  the  Constitution. 

At  the  general  election  to  be  held  in  1888,  and  in  each  twentieth  (20)  year  there- 
after, and  also  at  such  time  as  the  General  Assembly  may  by  law  provide,  the  question, 
"Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?" 

That  was  the  language  used. 

Now  let  us  see  what  the  language  of  the  act  was.  This  is  the  act  of  March  15, 
1900,  which  called  us  into  being: 

Be  it  enacted  by  the  General  Assembly  of  Virginia,  that  at  an  election  to  be  held 
on  the  fourth  Thursday  in  May,  1900,  there  shall  be  submitted  to  the  electors  qualified 
to  vote  for  members  of  the  General  Assembly. 

The  very  electorate  that  the  Constitution  points  out — 
What? 

The  question,  "Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend 
the  same?  " 

Was  it,  "the  question  whether  there  shall  be  a  Convention,"  as  was  submitted  in  the 
Pennsylvania  case?  Not  a  bit  of  it.  It  is  in  quotation  the  very  language  contained  in 
the  Constitution,  "Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend  the 
same?"  Why  this  coincidence?  Why  this  remarkable  similiarly  in  language,  if  the  one 
did  not  follow  the  other?    Why  the  words  in  quotation,  if  that  was  not  the  case? 

The  gentleman  from  Charlotte  yesterday  cited  authorities  to  sustain  his  position, 
which  have  not  been  answered,  that  where  there  was  a  constitutional  method  pointed  out 
for  the  calling  of  a  Convention,  the  Legislature  had  no  legal  right  or  power  to  take  any 
other  method.  I  need  not  resort  here  to  the  question  of  whether  or  not  they  had  the 
legal  right.  I  have  heard  no  answer  to  those  authorities  or  that  argument.  The  fact  is 
that  they  did  follow  the  very  language,  in  quotation  marks,  used  in  the  Constitution 
under  which  they  were  acting.  How  then  can  you  say  it  is  to  be  presumed,  or  how 
could  any  court  presume  that  their  action  was  not  taken  under  that  act?  But,  what 
difference  would  it  make,  Mr.  President,  whether  they  were  acting  under  the  constitu- 
tional provision  or  not?  What  difference  does  it  make?  What  is  it  that  gives  this  Con- 
vention pov/er?  What  confers  upon  it  authority?  It  is  the  will  of  the  people,  expressed 
not  by  its  legislature,  but  by  the  people  themselves  in  their  direct  action  on  the  powers 
of  this  Convention.  Nov/,  v^^hat  did  the  people  vote  on,  when  they  voted?  Did  they  vote 
that  there  should  be  a  Convention?  Was  the  question  submitted  to  them,  "Shall  there 
be  a  Convention;  yes  or  no?"  Not  a  bit  of  it — but,  "  Shall  there  be  a  Convention  to  revise 
and  amend  the  Constitution?"  Was  it  to  be  a  Convention  to  submit  its  amendments  to 
the  people?  No,  sir.  The  Legislature  could  do  that  without  calling  a  Convention.  But 
the  language  v/as,  "Shall  there  be  a  Convention" — it  did  not  stop  there — but  goes  on,  "to 
amend  and  revise  the  Constitution." 

I  say,  Mr.  President,  that  if  there  v/ere  not  a  line  of  constitutional  authority  on  the 
subject,  that  if  we  claim  our  power  not  from  the  Constitution  but  from  the  Legislature 
alone,  supplemented  by  the  vote  of  the  people,  it  would  give  us  sufhcient  authority.  It 
is  not  a  general  authority,  which  would  be  enough,  says  the  gentleman  from  Winchester, 
but  an  express,  special,  and  clear  authority.  This  Convention  shall  be  called  to  revise 
and  amend  the  Constitution. 

Have  you  done  it?  Have  you  done  what  you  were  sent  here  to  do?  Have  you  ful- 
filled your  duty  when  you  adjourn  without  revising  and  without  amending  the  Constitu- 


DEBATES  OE  TSE  COXSTITrXIOXAL  COXTEXTIOX  OE  VIEGIXIA. 


3191 


tion,  leaTmg  it  to  somebody  else  to  say  ^hettier  it  should  be  done  or  not?  If  you  "sub- 
mit this  to  the  people  and  they  ratify  it  by  their  vote,  it  ^ill  be  valid,  not  because  the 
people  voted  for  it,  but  because  you  have  enacted  it  and  made  it  the  la^-  subject  to  their 
approval.  Even  then  it  does  not  get  its  authority  so  much  from  the  vote  of  the  people 
as  it  does  from  your  acts  here. 

Mr.  Robertson:  I  do  not  understand  vrhether  or  not  you  mean  to  say  that  we  have 
no  right  to  submit  it.  Suppose  we  decide  to  submit  the  Constitution  and  the  people  vote 
against  it,  will  it  still  be  the  Constitution? 

Mr.  Carter:  I  think  not,  because  in  that  case  we  would  not  have  enacted  it.  We 
would  enact  it  provisionally.  We  will  have  said  that  this  shall  become  the  law  if  the 
people  approve  of  it,  and  then  when  the  people  approve  of  it  what  we  did  provisionally 
would  become  the  law. 

Mr.  Wysor:  May  I  interrupt  the  gentleman  before  he  goes  on  to  another  point?  I 
promise  not  to  interrupt  him  again.  You  have  argued  that  the  Legislature  could  not 
submit  any  other  question  than  that  found  in  the  Constitution.    Is  that  your  position? 

Mr.  Carter:  I  do  not  take  that  ground.  I  do  not  know  that  it  is  necessary  for  the 
purpose  of  this  discussion  from  my  standpoint,  to  decide  that  question  one  way  or  the 
other,  ^"hat  I  said  was  that  Judge  Bouldin  argued  that  yesterday,  and  that  he  cited 
authority  to  show  you  were  bound  to  pursue  that  method.  I  have  heard  no  answer  to 
that  proposition;  but  for  the  purposes  of  this  discussion,  and  so  far  as  I  am  concerned  I 
am  willing  to  rest  the  authority  either  upon  the  Underwood  Constitution  and  the  act  and 
vote  of  the  people  together,  or,  leaving  out  the  Constitution,  rest  it  upon  the  act  of  the 
Legislature,  voted  on  by  the  people  in  1900. 

Mr.  Thom:  I  would  like  the  gentleman  to  state,  if  he  will,  his  individual  position 
on  the  question  which  has  just  been  asked:  Whether  or  not  when  there  is  a  method  of 
amending  the  Constitution  contained  in  the  existing  Constitution,  that  is  exclusive  of  all 
other  methods  except  that  of  revolution? 

Mr.  Carter:  That  is  a  question  I  would  not  like  to  answer  without  having  made 
fulier  examination  of  the  matter  than  I  have  made.  It  is  entirely  unnecessary,  however, 
in  this  case;  for  whether  we  rest  upon  the  Underwood  Constitution  and  the  act  of  the 
Legislature  and  the  vote  of  the  people,  or  whether  the  foundation  of  this  Convention  be- 
gins with  the  act  of  1900,  it  all  comes  back  to  the  same  point:  What  did  the  people  do? 
What  was  their  mandate  to  this  body  when  they  called  the  Constitutional  Convention 
into  existence?  What  did  they  decide?  They  decided  in  the  affirmative  the  question, 
"Shall  there  be  a  convention  to  revise  the  Constitution  and  to  amend  the  same?" 

But  it  is  said  that  the  act  passed  afterwards  destroyed  and  eliminated  the  power 
that  the  people  had  given  us  by  their  direct  vote.  It  cannot  be  so.  After  the  people  have 
called  a  Constitutional  Convention  by  their  direct  vote,  and  have  by  their  vote  said  that 
"there  shall  be  a  convention  to  revise  the  Constitution  and  amend  the  same,"  it  cannot 
be  that  then,  without  any  new  reference  to  the  people,  without  any  submission  to  them 
for  their  vote  on  the  question  and  without  any  question  being  submitted  to  them,  the 
Legislature,  whose  sole  duty  under  the  Constitution  then  in  force  was  to  provide  for  the 
assembling  of  the  Convention,  can  overstep  their  duties  and  their  powers,  and  put  a  re- 
striction in  the  call  that  the  people  have  made,  which  would  destroy  its  purpose.  ' 

Mr.  Robertson:  Is  not  that  argument  based  on  the  idea  that  the  Legislature  was 
compelled  to  provide  only  for  the  election  of  the  delegates;  and  is  it  not  after  all  your 
idea  that  that  is  the  exclusive  method  the  Legislature  intended  to  follow? 

Mr.  Carter:  Not  at  all.  I  say  that  we  have  the  living  power,  and  that  we  have  it 
from  the  direct  vote  of  the  people.  Whether  it  comes  from  the  fountainhead  of  the  Con- 
stitution or  whether  it  comes  from  that  first  act  of  the  Legislature  is  immaterial.  The 
power  comes  from  the  direct  vote  of  the  people. 

Mr.  R.  Walton  Moore:  The  gentleman  talks  about  pursuing  the  constitutional 
method  in  order  to  call  a  convention,  and  that  you  must  pursue  that  method  rigidly,  as  I 
understand.    Will  you  tell  me  then,  how  it  can  be  possible,  under  the  Underwood  Con- 


319,2  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

stitution,  to  bring  about  a  convention  which  would  be  bound  to  submit  the  Constitution? 
Is  it  in  the  power  of  the  people,  if  your  argument  is  correct,  to  bring  about  a  convention 
which  they  could  compel  to  submit  the  Constitution  to  them? 

Mr.  Carter:  There  are  a  great  many  moot  questions  that  may  be  asked  on  this 
subject,  and  I  think  that  is  one  of  them.  I  do  not  think  it  has  anything  to  do  with  this 
discussion.  However,  I  will  answer  it.  If  that  act  in  1900  had  on  its  face,  and  by  its. 
terms,  required  this  body  to  submit  the  Constitution  which  it  should  frame,  I  think  it 
would  have  been  bound  to  do  it. 

Mr.  R.  Walton  Moore:  Upon  the  theory  that  the  people  were  present  in  the  Gene- 
ral Assembly  when  the  act  was  passed? 

Mr.  Carter:  No;  but  upon  the  theory  that  the  people  voted  on  it;  not  because  they 
were  present  in  the  Legislature,  but  that  the  people  themselves  voted  on  the  question. 

Mr.  Thom:  I  would  like  to  know  whether,  if  the  Constitution  on  its  face  provides 
no  method  for  submission,  and  the  Legislature  may  submit  to  the  people  the  question  of 
whether  a  convention  should  be  called,  and  coupled  with  it  a  condition  that  the  Con- 
stitution should  be  submitted,  and  if  you  admit  that  by  voting  in  favor  of  that  there 
would  be  an  obligation  to  submit,  do  you  not  necessarily  admit  that  the  constitutional 
method  is  not  the  exclusive  method  of  amending  the  Constitution? 

Mr.  Carter:  On  that  question  I  will  have  to  be  like  my  friend  Moore  on  the  ques- 
tion of  power  to  proclaim  and  reply  I  have  grave  doubts.  (Laughter.)  But  that  ques- 
tion has  no  place  in  this  case  at  all,  because  whether  the  source  of  our  power  be  the 
Underwood  Constitution,  or  whether  it  be  the  act  of  1900,  the  living,  vivifying  principle 
of  that  power  was  the  vote  of  the  people,  and  the  people  voted  that  we  should  come 
here  and  revise  and  amend  this  Constitution. 

Mr.  R.  ¥7alton  Moore:  You  say  that  if  the  act  of  the  Legislature  was  the  source  of 
power  and  there  was  no  constitutional  provision  in  operation  at  the  time,  and  the  people 
voted  upon  that  question,  that  would  be  the  finale? 

Mr.  Carter:    I  think  so. 

Mr.  R.  Walton  Moore:  Do  you  mean  to  say  that  a  subsequent  legislature  could  hot 
change  or  amend  the  act  of  the  prior  legislature?  Do  you  mean  to  say  that  it  would  not 
be  competent  by  subsequent  legislation  to  wipe  out  all  that  had  been  done  by  the  legis- 
lative act  of  the  General  Assembly? 

Mr.  Carter:  Yes,  sir.  That  is  what  I  say.  I  say  that  when  a  legislature  has  sub- 
mitted to  the  sovereign  people  the  question  whether  or  not  there  shall  be  a  Constitu- 
tional Convention,  and  the  people  have  voted  that  there  shall  be  a  convention,  and  have 
slated  what  the  powers  of  that  convention  are  to  be,  no  subsequent  legislature  can 
change  those  powers  without  another  referendum. 

Mr.  Robertson:  Suppose  the  Legislature  acted  on  the  proposition  and  the  people 
acquiesced  in  the  action  of  the  Legislature,  and  voted  for  it:  would  that  not  be  decisive? 

Mr.  Carter:  Can  a  man  acquiesce  when  he  has  no  chance  to  do  so.  How  could  the 
people  have  done  anything  else  but  vote  for  members  of  this  body?  Was  there  any  way 
in  which  they  could  express  their  desire  as  to  whether  we  should  come  here  untram- 
melled or  not? 

Mr.  R.  Walton  Moore:  One  further  question,  and  I  promise  not  to  interrupt  the 
gentleman  further.  The  gentleman  takes  the  position,  as  I  understand,  that  where  there 
has  been  a  referendum,  and  the  people  have  voted,  it  is  not  competent  for  a  subsequent 
legislature  to  destroy  the  effect  of  that  vote.  Suppose,  to  use  an  illustration,  the  legis- 
lature passed  a  local  option  law,  and  referred  the  question  of  license  to  the  people  of 
Hanover  county,  the  people  in  that  county  voting  that  under  that  law  they  shall  not 
have  liquor  licenses.  Do  you  mean  to  say  there  has  got  to  be  another  vote  by  the  people 
of  Hanover  before  you  could  change  the  status  there,  or  will  you  admit  that  the  subse- 
quent Legislature  has  the  right  to  destroy  that  status,  without  a  reference  to  the  people? 

Mr.  Carter:  There  is  a  difference  betwen  liquor  licenses  and  Constitutional  Con- 
ventions. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3193 


But,  Mr.  President  and  gentlemen  of  the  Convention,  suppose  the  gentlemen  were 
right;  suppose  it  was  the  law  that  after  this  Convention  had  been  called,  after  its  power 
had  been  fixed  by  the  direct  vote  of  the  people,  another  legislature  could  come  in  and 
without  any  authority  from  the  people  except  the  power  which  a  legislature  ordinarily 
has,  should  assume  to  change  and  take  away  the  powers  conferred  upon  that  Conven- 
tion? Suppose  that  after  this  Convention  had  been  at  enormous  expense  and  cost  and 
labor,  after  the  people  had  voted  that  it  should  come  here,  the  Legislature  which  pro- 
vided for  the  election  of  the  members  had  enacted  a  provision  which  would  have  shorn 
us  of  all  power;  and  suppose  they  had  said:  "All  right,  come,  gather  in  the  capitol  of 
Virginia  to  perfect  the  fundamental  law  of  the  State,  because  the  people  by  direct  vote 
have  said  you  must  come;  but  when  you  get  there  confine  yourselves  to  the  question: 
How  long  shall  a  country  constable  hold  office."  Did  they  have  that  power?  Is  it 
claimed  that  they  had.  And  yet,  if  they  could  limit  us  in  one  respect,  they  could  limit 
us  in  all. 

I  think,  Mr.  President,  and  gentlemen  of  the  Convention,  that  this  Pennsylvania 
case,  which  has  been  so  much  relied  upon  by  gentlemen  on  the  other  side,  illustrates  the 
difference  between  the  conditions  that  then  existed  and  the  conditions  that  existed  when 
this  Convention  was  called. 

The  text  of  the  act  of  the  Pennsylvania  case  was  "that  the  question  of  calling  a 
Convention  to  amend  the  Constitution  of  this  Commonwealth,  be  submitted  to  a  vote  of 
the  people  at  the  general  election  to  be  held  on  the  second  Tuesday  of  October  next." 

Was  that  the  text  of  the  act  of  1900,  here,  that  the  question  of  calling  a  Convention 
be  submitted  to  the  people?  Not  a  bit  of  it.  The  text  of  the  act  here  was:  "Shall 
there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same?" 

Does  that  distinction  cut  any  figure  in  this  decision.  I  think  so.  The  question  in 
the  Pennsylvania  case  was  authorized  to  be  submitted.  What  question?  Now  it 
tells  us: 

This  question  was  ansv/ered  in  the  affirmative  by  a  majority  of  the  votes,  and  the 
people,  answering  the  Legislature,  said:  "You  may  call  a  Convention,"  and  the  Legis- 
lature asked  for  authority. 

The  Legislature  evidently  asked,  "May  we  do  it,  or  not?" 
This  was  all  the  vote  expressed: 

Each  vote  expressing  the  opinion  of  the  elector  on  that  question,  the  majority  ex- 
pressed no  more,  for  the  majority  was  composed  of  the  sum  total  of  the  votes  on  that 
side.  Thus  an  analysis  of  the  act,  both  in  its  title  and  its  text,  demonstrates  that  the 
vote  was  not  a  delegation  of  pov/er,  except  to  the  Legislature. 

The  Legislature  was  the  creator  and  not  the  people.  The  Legislature  got  from  the 
people  authority  which  they  could  exercise  or  not  as  they  pleased,  under  v^^hich  they 
might  or  might  not  call  a  convention. 

Here  the  Legislature  is  commanded  by  the  Constitution,  by  the  vote  of  the  people 
following  the  act  of  1900,  in  terms  as  clear  and  as  explicit  as  the  English  language 
could  make  it,  to  call  a  Convention  to  revise  and  amend  the  Constitution. 

Mr.  Meredith:  May  I  call  the  gentleman's  attention  to  this:  Under  the  language 
of  the  Constitution  all  the  Legislature  has  to  do  is  to  provide  for  an  election  of  mem- 
bers to  the  Convention,  recognizing  the  fact  that  the  Convention  must  be  called? 

Mr.  Carter:  Undoubtedly;  and  the  act  of  1900  makes  no  further  provision.  This 
Pennsylvania  case  rests  upon  the  authority  demonstrating  that  the  vote  was  not  a  dele- 
gation of  poY>^er  except  to  the  Legislature.  Here,  in  the  Pennsylvania  case,  the  Legis- 
lature was  given,  by  the  people,  the  power  to  call  that  Convention  or  not,  as  they 
pleased.    No  such  power  was  given  here.    Again,  on  the  next  page: 

The  result  of  the  vote  on  this  question  declared  the  sense  of  the  greater  number  of 
electors,  that  a  Convention  might  be  called. 
201 — Const.  Deb. 


3194 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Here  the  vote  was  not  that  the  Convention  should  be  called.    That  is  not  all. 

In  the  Pennsylvania  case  "it  vv^as  not  itself  a  call.  It  left  that" — that  is,  the  calling 
of  the  Convention — "to  those  invested  with  the  powers  of  government." 

So  that  every  word  of  this  decision,  which  is  relied  on  by  gentlemen  here,  goes  to 
show  that  the  Legislature  in  Pennsylvania  received  from  the  people  an  authority  which 
they  could  exercise  or  not  as  they  pleased,  to  call  the  Convention.  That  was  all.  And 
having  the  authority,  they  had  the  right  to  annex  such  conditions  as  they  saw  fit. 

Mr.  Thom:  I  would  like  to  ask  this  question,  so  that  I  may  understand  whether  or 
not  I  am  mistaken  in  what  I  thought  I  heard  the  gentleman  say  a  moment  ago:  As  I 
understand  the  Pennsylvania  act,  the  title  of  the  act  was:  An  act  to  authorize  a  popu- 
lar vote  upon  the  question  of  calling  a  Convention  to  amend  the  Constitution  of  Penn- 
sylvania, and  the  text  of  the  act  is: 

That  the  question  of  calling  a  Convention  to  amend  the  Constitution  of  this  Com- 
monwealth be  submitted  to  a  vote  of  trhe  people. 

I  understood  my  friend  to  say  that  the  text  of  the  act  of  the  State  of  Pennsylvania 
did  not  define  the  power  of  the  Convention  to  amend  the  Constitution;  but  merely  gave 
them  the  right  to  call  a  Convention.  Am  I  mistaken  in  my  understanding  of  what  the 
gentleman  said?    You  did  not  claim  that,  did  you? 

Mr.  Carter:    I  did  not  intend  to  do  so. 

Mr.  Thom:  I  thought  you  did  omit  them.  That  is  the  reason  I  asked  the  question. 
Those  words  are  in  both  the  title  and  the  text  of  the  act. 

Mr.  Carter:  But  in  the  act  itself  there  was  no  expression  mandatory  on  the  Legis- 
lature. It  was  simply  power  that  the  Legislature  sought,  and  they  had  the  right  to  call 
the  Convention  or  not,  after  they  received  their  power;  and  having  that  right,  they  had 
a  right  to  annex  conditions  to  it.  They  did  not  undertake  to  do  more,  and  you  will  see 
that  the  Court  there  says  this  "was  not  a  delegation  of  power,  except  to  the  Legisla- 
ture." 

Do  you  mean  to  say  that  the  people  by  the  vote  under  the  act  of  1900,  delegated  to 
the  Legislature  the  power  to  determine  what  should  be  the  powers  of  this  Constitutional 
Convention?  If  so,  how  inapt  was  the  language  v/hich  says,  "Shall  there  be  a  Conven- 
tion to  revise  or  amend  the  Constitution?"  You  interpret  it,  "Shall  there  be  a  Conven- 
tion to  propose  amendments  and  submit  them  to  the  people?" 

Mr.  Thom:  No;  what  I  v/ant  to  call  attention  to  is  this,  if  my  friend  will  permit 
me.  If  you  are  acting  under  the  Constitution  in  calling  this  Convention,  then  the  pro- 
visions of  the  Constitution  making  it  mandatory  apply.  But  in  order  to  assert  that  you 
are  necessarily  acting  under  the  powers  of  the  Constitution  you  must  again  find  yourself 
in  the  position  of  contending  that  that  is  the  exclusive  method. 

Mr.  Carter:  Not  necessarily.  There  may  be  power  to  act  under  the  Constitution, 
That  is  not  all.  As  is  frequently  the  case  in  the  matter  of  titles  to  land,  the  tenant  in 
possession  may  acquire  two  titles  to  land,  with  every  element  of  strength  in  both.  We 
may  base  this  proceeding  under  both  the  Constitution  and  the  act,  independently  of  the 
Constitution.    Why  not? 

I  do  not  know,  Mr.  President,  that  there  is  anything  else  that  I  can  say  on  this 
question.  I  do  not  mean  to  say  that  there  is  not  something  else  that  can  be  said.  I 
have  not  gone  into  the  question  of  the  past  precedents,  but  it  does  seem  to  me  that  upon 
the  question  of  power,  upon  the  question  of  legal  right,  there  ought  not  to  be  any  doubt, 
even  in  the  mind  of  my  friend  from  Fairfax,  who  is  anxious  because  he  feels  in  duty 
bound  to  build  up  barriers,  legal  as  well  as  moral,  against  the  proclamation  of  this  Con- 
stitution. I  do  not  think  that  the  positions  of  these  gentlemen  here  tally  with  each  other. 
We  find  gentlemen  here  arguing  for  submission,  some  of  them  admitting  the  legal  power, 
others  denying  it,  others  doubting  it.  But  I  take  it,  that  whether  the  gentleman  from 
Halifax  be  right,  that  there  is  no  other  method  than  that  which  the  Constitution  pro- 
vides, or  whether  there  might  be  another  method,  the  Legislature  chose,  in  1900,  to  sub- 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OE  YIEGIXIA. 


3195 


mit  to  the  people  of  Virginia  the  question:  "Shall  there  be  a  Conyention  to  revise  and 
amend  this  Constitution,"  and  that  is  your  authority  under  the  Constitution,  under  the 
legislative  act,  and  under  the  direct  vote  of  the  people. 

Now,  what  takes  away  that  power?  After  this  Convention  had  been  called  into 
being,  after  it  had  been  solemnly  resolved  and  enacted  that  there  should  be  a  Conven- 
tion for  that  purpose,  the  Legislature  in  undert-aking  to  provide  for  their  assembly  and 
their  number,  which  was  all  the  Constitution  gave  them  the  right  to  do,  went  further 
and  undertook  to  say  what?  That  when  you  get  here  you  must  not  revise  and  amend 
the  Constitution,  but  you  must  submit  your  work  to  the  people.  That  is  not  all  this  act 
says,  and  that  is  not  all  that  follows  if  you  take  that  view  of  the  power.  It  provides 
that  if  the  convention  shall  not  propose  a  revised  and  amended  Constitution  on  or  be- 
fore the  5th  day  of  October,  1901 — and  that  time  has  come — it  shall  remain  for  the  next 
General  Assembly  to  enact  such  measures  as  it  may  deem  proper  for  submitting  the  said 
revised  and  amended  Constitution  to  the  people  of  this  Commonwealth  for  ratification 
or  rejection. 

If  these  gentlemen  are  right  in  their  view  of  the  question  of  power,  see  where  it 
lands  us.  One  election  by  the  people  to  decide  this  thing?  Not  a  bit  of  it;  not  a  bit  of 
it.    It  is  submitted  to  the  next  Legislature,  in  1904. 

Mr.  Robertson:  Does  that  mean  the  Legislature  elected  at  the  coming  election? 
Could  not  this  present  Legislature  call  an  extra  session  to  consider  the  matter? 

Mr.  Carter:    No,  sir;  it  says  the  next  General  Assembly. 

Mr.  Brooke:  Does  not  that  mean  the  General  Assembly  elected  immediately  after 
that  act  was  enacted — the  one  now  in  power? 

Mr.  Carter:    It  may  mean  that.    I  do  not  know  what  it  means. 

Mr.  Brooke:  Because  it  provides  that  unless  we  get  through  with  our  work  in  time 
we  must  submit  it  to  the  next  General  Assembly. 

I\Ir.  Carter:  There  cannot  be  any  next  General  Assembly  unless  you  make  it  by 
the  Constitution.  Your  power  to  do  anything  is  null  and  void  until  acted  on  as  pro- 
vided for.  How  can  there  be  a  next  General  Assembly  under  this  Constitution  until  it 
goes  into  force? 

Mr.  Robertson:  The  members  of  the  General  Assembly  were  elected  last  fall,  and 
they  could  be  called  in  extra  session  upon  this  matter. 

Mr.  Carter:  It  may  be  so,  and  it  may  not  be  so.  Nobody  knows  what  that  lan- 
guage means:  "The  next  General  Assembly  is  to  enact  such  measure  as  it  may  deem 
proper."  That  is  not  all.  YiTiat  does  it  leave  to  the  General  Assembly?  To  leave  it  to 
the  people?  No;  but  to  enact  such  measures  as  it  may  deem  proper  to  leave  it  to  the 
people.  It  seems  to  me  it  gives  the  next  General  Assembly — and  whether  it  is  the  pres- 
ent one  or  one  to  be  next  elected  is  a  question  about  which  I  am  not  free  from  doubt — 
power  to  enact  such  provisions  as  it  may  deem  proper.  My  friend  from  Winchester  says 
they  have  the  right  to  say  what  electorate  shall  vote,  and  they  may  choose  to  put  in  a 
provision  that  will  leave  it  altogether  to  the  colored  voters.  It  might  be  argued  that  in 
following  this  we  give  them  that  authority. 

Mr.  Harrison:  I  think  the  gentleman  from  Hanover  has  been  misled  somewhat  by 
the  report  in  the  Dispatch.  I  misunderstood  his  question  when  he  asked  it  the  other 
day.  I  understood  that  he  was  speaking  of  the  electorate  to  which  the  preliminary  ques- 
tion, whether  we  should  have  a  Convention  or  not,  should  be  submitted,  and  it  was 
principally  on  that  line  that  I  was  directing  my  answer  to  his  question.  I  did  not  mean, 
I  do  not  contend,  and  I  do  not  think  it  is  necessary  to  contend,  that  the  Legislature  has 
a  right  to  prescribe  the  electorate  to  which  the  Constitution  shall  be  submitted  when 
adopted  by  this  body. 

Mr.  Carter:  I  am  glad  the  gentleman  is  not  as  far  from  the  right  there  as  I  thought 
he  was;  but  it  struck  me  that  was  the  position  he  took  in  answer  to  my  question,  and 
that  he  took  that  position  in  answering  the  question  of  the  gentleman  from  Culpeper 
(Mr.  Barbour). 


3196 


DEBATES  OF  THE  CONSTITUTIOJTAL  CONVENTION'  OF  VIRGINIA. 


Mr.  Harrison:  When  the  gentleman  from  Culpeper  asked  the  question,  I  under 
stood  the  force  of  it,  and  I  said  that  the  legislative  act  was  necessary  to  give  the  assent 
of  the  existing  government  to  the  proposal  of  the  new  government,  and  that  would  make 
it  simply  a  political  question,  which  could  not  be  called  in  question  in  the  courts. 

Mr.  Carter:    Mr.  President,  on  the  other  question,  in  this  case,  I  feel  some  little 
delicacy  in  speaking,  and  I  am  not  going  to  say  much  on  it,  that  is  the  moral  question. 
T  do  not  like  to  be  advising  people,  especially  about  morals,  but  so  much  has  been  said  . 
toy  gentlemen  on  the  other  side,  that  I  think  I  may  speak  with  propriety. 

I  remember  that  the  gentleman  from  Wythe  stated  he  did  not  believe  there  was  a 
noember  in  this  body  who  cam^e  here  with  any  idea,  or  v/hose  constituents  had  any  idea, 
that  he  could  do  aught  but  submit  this  question  for  their  vote.  He  surely  was  not  pres- 
ent when  the  gentleman  from  Lynchburg  argued  this  question.  Why,  the  canvass  was 
made  in  that  city  on  this  very  point.  I  know  of  another  man  in  this  Convention  who 
was  asked  the  question  by  his  constituents  before  his  election,  and  before  his  nomina- 
tion, as  to  what  his  position  would  be  on  this  point.  He  said  to  them  that  if  this  Con- 
vention framed  a  Constitution  that  he  thought  was  good  and  right  and  proper  for  the 
people,  he  would  vote  to  proclaim  it;  and  if  he  did  not  approve  of  it,  he  would  try  and 
get  it  referred  back  to  the  people  and  help  them  to  defeat  it. 

Is  there  a  man  here  who  pledged  himself  to  his  people  to  submit  this  matter?  If  so, 
he  must  keep  that  pledge,  unless  he  has  been  released  from  it.  How  can  he  be  released? 
If  I  thought  the  people  to  whom  I  promised  desired  me  to  do  something  else,  would  not 
I  be  false  to  my  duty  to  them  not  to  do  as  they  desired?  It  is  a  matter  that  I  ought  to 
he  careful  about;  it  is  a  matter  I  ought  to  be  cautious  about;  but  I  say  that  if  a  delegate 
came  here  under  a  promise  to  do  something  that  would  bring  injury  and  ruin  on  his 
people,  it  is  a  bad  promise,  and  it  ought  to  be  broken.  But  much  more  ought  it  to  be 
broken,  if  he  is  satisfied  that  the  very  people  he  promised  desire  him  to  do  something 
else.  I  do  not  want  to  criticise  anybody.  I  am  not  in  a  position  to  criticise  anybody. 
So  far  as  I,  myself,  am  concerned,  I  made  no  promise  but  a  promise  to  vote  to  proclaim 
this  Constitution,  if  I  thought  it  ought  to  be  proclaimed.  But  if  I  had  not  done  it,  know- 
ing as  I  know,  the  sentiment  of  my  people,  I  would  not  hesitate  to  do  so.  That  is  a 
question,  as  the  gentleman  said  who  opened  this  debate,  for  submission,  that  each  man 
must  decide  for  himself. 

The  gentleman  who  opened  this  case  for  submission  admitted,  and  his  admission  is 
entitled  to  great  weight  in  this  discussion,  that  but  for  his  personal  appeal  to  the  people 
in  this  section,  he  would  have  been  instructed  to  vote  for  the  proclamation  of  the  Con- 
stitution, and  I  take  it  he  would  not  have  dared  disobey  those  instructions.  He  also 
admitted  that  the  sentiment  in  the  State — and  he  is  in  a  position  to  hear  and  see  much 
more  than  I  can,  or  some  others  of  you — was  in  favor  of  proclamation. 

I  do  not  put  much  value  upon  my  judgment  as  to  the  sentiment  in  the  State,  but 
I  see  from  the  papers,  and  I  think  it  is  true,  that  the  sentiment  is  in  favor  of  proclama- 
tion. I  do  know  that  in  my  section  that  sentiment  is  almost  unanimous,  and  I  feel 
that  I  would  be  recreant  to  the  duty  I  owe  my  constituents,  and  recreant  to  the  duty 
I  owe  myself,  if  I  did  not  vote  to  proclaim  it,  because  I  think  it  is  best  to  do  so,  be- 
cause my  people  desire  it,  and  because  that  was  the  purpose  for  which  we  were  sent 
here  by  the  people  when  they  voted  for  a  Constitutional  Convention  "to  revise  and 
amend  the  Constitution."    (Great  applause.) 

Mr.  Dunaway:  Mr.  President,  I  move  that  the  Chair  be  vacated  until  4  o'clock 
this  afternoon. 

The  motion  was  agreed  to,  and  the  Chair  was  vacated  until  4  o'clock  P.  M. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


319T 


AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
chair. 

The  President:    The  pending  question  is  as  to  the  disposition  to  be  made  of  th® 
Constitution. 

Mr.  Dunaway:  Mr.  President,  this  Convention  seems  to  be  unwilling  to  deter- 
mine anything  until  the  time  of  taking  the  vote  arises,  and  in  the  meantime  there 
seems  to  be  a  great  hesitation  upon  the  part  of  the  members  of  the  Convention  to 
take  the  floor.  I  rather  suspect  that  there  are  some  gentlemen  here  who  desire  t& 
be  heard  upon  this  question,  but  are  waiting  for  others  to  speak.  I  will  confess  that 
was  my  ov/n  case.  I  have  been  waiting,  not  that  I  might  answer  the  arguments  of 
any  particular  gentleman,  but  for  some  one  upon  this  floor  to  give  reasons  similar 
to  those  that  move  me  to  give  the  vote  which  I  shall  give,  in  favor  of  proclaiming 
this  Constitution.  I  did  not  desire  to  speak  upon  this  subject,  first,  because  I  am 
not  fond  of  public  speaking,  and,  secondly,  because  this  particular  question  is  one  of 
such  grave  import,  and  is  compassed  with  so  much  diflicult3^  But  since  no  one,  here- 
tofore, has  stated  the  grounds  upon  which  I  shall  cast  my  vote,  I  ask  the  attention  of 
the  members  of  the  Convention  for  a  short  time,  while  I  give  the  reasons  that  move 
me  in  reaching  my  decision. 

I  desire  to  sp.y,  first  of  all,  that  submission  to  the  people  is  the  customary  way  of 
disposing  of  Constitutions  in  the  various  Commonwealth  of  America.  If  there  was 
not  something  unusual  in  the  present  case  I  should  certainly  give  my  vote  for  com- 
pliance with  the  ordinary  method  of  framing  Constitutions  in  America.  All  the  Con- 
stitutions we  have  had  in  Virginia  were  submitted  to  the  popular  vote,  except  the  first 
one.  The  Constitution  under  which  we  live  was  submitted  to  a  vote,  not  by  an  aet 
of  the  Legislature,  not  by  the  Convention  itself,  but  by  the  act  of  the  Congress  of  t&e 
United  States.  I  believe  that  it  was  the  intention  of  the  framers  of  that  Constituticss® 
that  future  Constitutions  should  be  submitted,  and  that  they  did  not  have  a  thought  t® 
the  contrary.  Argument  has  been  m.ade  here,  mere  verbal  argument,  upon  a  phrase 
used  in  the  last  article  of  the  Constitution  about  calling  a  Convention  "to  revise  aiiS 
amend."  While  nothing  is  said  there  about  submission,  it  may  be  read  in  the  lines, 
and  was  the  intention,  I  have  no  doubt.  It  surely  was  the  intention  of  the  act  of  the 
General  Assembly  under  which  this  body  was  called,  that  the  new  Constitution  should 
be  submitted  to  the  vote  of  the  people.  Tt  appears  very  plain  from  several  sectiosi;^ 
of  that  act.    In  the  6th  section,  for  instance,  the  following  language  is  used: 

The  persons  who  shall  be  elected  in  pursuance  of  this  act  shall,  on  Wednesday,  the 
12th  day  of  June,  1901,  at  12  o'clock,  meet  and  assemble  in  the  hall  of  the  House  of 
Delegates,  at  the  Capitol,  in  the  city  of  Richmond,  in  general  convention,  to  consider, 
discuss,  and  propose  the  new  Constitution,  or  alterations,  or  amendments  to  the  exist- 
ing Constitution. 

The  12th  section  provides  that  it  shall  be  submitted.  The  last  section,  to  whic^ 
I  call  the  attention  of  the  gentleman  from  Fairfax  particularly,  provides: 

If  said  Convention  shall  not  propose  a  revised  and  amended  Constitution  on  or  he- 
fore  the  5th  day  of  October,  1901,  it  shall  remain  for  the  next  General  Assembly — evi- 
dently the  one  that  is  now  in  existence — to  enact  such  measures  as  it  may  deem  proper, 
for  submitting  the  said  revised  or  amended  Constitution  to  the  people  of  this  CoiiS;^ 
monwealth  for  ratification  or  rejection. 

The  gentleman  from  Fairfax  laid  down  the  proposition  that  if  this  act  fs  a  vaBidf 
one,  this  Convention  is  bound  by  it.  I  do  not  agree  with  that  proposition  at  all;  but 
If  I  did,  I  should  certainly  answer  that  this  Constitution  has  neither  the  power  to 


3198  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

proclaim  nor  the  power  to  submit.  I  ask  the  attention  of  those  who  lay  so  much  stress 
upon  this  act,  under  which  we  were  elected,  to  the  language  of  the  act: 

If  said  Convention  shall  not  propose  a  revised  or  amended  Constitution  on  or  be- 
fore the  5th  day  of  October — just  what  did  not  happen — it  shall  remain  for  the  next 
General  Assembly  to  enact  such  measures  as  it  may  deem  proper  for  submitting  the 
said  revised  or  amended  Constitution  to  the  people  of  this  Commonwealth  for  ratifica- 
tion or  rejection. 

Since  we  have  failed  to  comply  with  that  condition,  and  are  to  consider  ourselves 
bound  by  all  the  terms  of  this  act,  there  is  nothing  this  Convention  can  do  except  to 
give  a  certified  copy  of  it  to  the  Legislature  of  Virginia,  and  allow  them  to  enact  such 
measures  as  they  see  fit,  for  submitting  this  revised  and  amended  Constitution  to  the 
people  of  this  Commonwealth. 

I  make  these  remarks  for  the  consideration  of  those  gentlemen  who  feel  bound  by 
all  of  the  terms  of  this  act  of  the  General  Assembly. 

I,  for  one,  do  not  feel  bound  by  the  terms  of  this  act.  The  General  Assembly  of 
Virginia,  when  there  is  no  Constitutional  Convention  in  session,  is  the  direct  repre- 
sentative of  the  will  and  sovereignty  of  the  people  of  Virginia;  but  when  a  Constitu- 
tional Convention,  under  an  act  passed  by  them,  has  come  into  existence,  it  is  not  sub- 
ordinate to  the  Legislature  of  Virginia,  and  is  not  bound  by  it.  It  is  a  subsequent  ex- 
pression of  the  sovereign  will  of  the  people;  the  last  reflection  and  exponent  of  that 
will,  and  it  cannot  be  bound  by  what  has  been  done  before,  any  more  than  the  Legis- 
lature can  be  bound  by  the  acts  of  a  preceding  Legislature. 

Mr.  President,  there  is  one  great  fact  in  the  present  history  of  Virginia  upon 
which  this  whole  question  hinges,  in  my  judgment,  and  it  has  not  been  mentioned  by 
any  gentleman  speaking  in  favor  of  either  of  the  propositions  that  are  now  before 
this  body.  That  great  fact,  to  which  I  call  attention,  and  to  which  I  bow  submis- 
sively, is  the  altered  will  of  the  people  of  this  State.  It  was  "the  sense"  of  a  certain 
convention  of  Virginians,  about  two  years  ago,  that  this  Constitution  should  be  sub- 
mitted to  the  people,  but  it  does  not  follow  that  they  have  not  obtained  better  sense 
by  this  time.  It  never  did  seem  to  me  to  be  first-class  sense  that  a  body  of  white 
men  should  say  that  there  should  be  no  Constitution  for  the  white  people  of  Virginia 
unless  it  was  ratified  by  the  negroes  of  the  State.  It  never  did  seem  to  me  to  be  first- 
class  sense  that  a  body  of  Democrats  should  say  that  there  should  not  be  a  Constitu- 
tion framed  by  them — although  they  made  it  a  party  question — until  they  had  first 
asked  the  consent  of  the  Republican  party.  But  whatever  may  have  been  the  opinion 
of  Democrats  and  Republicans  two  years  ago,  or  whatever  may  have  been  the  opinion 
of  our  people  twelve  months  ago,  I  stand  here  to  say  that  a  great  political  revolution 
has  swept  over  the  Commonwealth  of  Virginia,  and  that  the  mind  of  the  dominating 
class  of  Virginians  has  changed  within  the  last  twelve  months.  I  shall  not  cast  my 
vote  to  reflect  what  was  the  opinion  and  sense  of  my  people  twelve  months  ago,  but 
to  reflect  what  is  the  sense,  the  opinion,  and  the  wish  of  my  people  at  the  present 
time.  Why  do  I  say  so,  A  great  daily  paper,  established  in  this  city,  has  been  of  that 
opinion  for  a  long  time,  and  has  advocated  it.  The  one  paper  in  the  Commonwealth 
which  may  be  called — if  any  paper  in  the  Commonwealth  may  be  called — the  organ 
of  the  Democratic  party  in  Virginia,  has  swung  into  line,  and  the  old  Dispatch  stands 
side  by  side  with  the  Times  in  advocacy  of  the  proposition  of  proclamation.  Why  so? 
Because  it  is  simply  reflecting,  through  its  editorial  staff,  the  will  of  the  people  of 
Virginia  at  the  present  time,  as  they  believe  it  to  be. 

So  far  as  I  have  heard  expressions  myself,  so  far  as  I  have  information  derived 
from  gentlemen  who  have  come  but  recently  from  their  constituencies,  that  sentiment 
has  grown,  and  it  has  not  yet  reached  its  highest  mark.  It  is  still  gathering  force  in 
the  Commonwealth  of  Virginia.  I  may  be  mistaken  in  my  belief,  but  I  believe  I  reflect 
the  will  of  the  people  of  intelligence,  of  social  worth  in  the  Commonwealth,  by  deliv- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OE  YIEGIMA. 


3199 


ering  my  voie  for  the  proclamation  of  this  instrument,  ^hich  has  "been  devised  after 
so  many  vreary  months  of  labor,  after  taxing  the  patience  and  the  vrisdom  and  the 
patriotism  of  this  body,  one  of  the  finest  bodies  of  men  that  ever  gathered  to  form  a 
Constitution  for  Virginia. 

Mr.  Thom:  I  only  Tvanted  to  know  from  the  gentleman  what  view  he  takes  of 
this  moral  proposition,  because  I  have  great  confidence  in  his  views  on  all  questions, 
especially  those  relating  to  right  and  wrong.  As  I  understand  it,  the  pledge  of  the 
Democratic  party  was  to  obtain  the  votes  of  the  people  of  Virginia  in  favor  of 
the  Constitutional  Convention.    You  will  probably  agree  with  me  on  that  proposition. 

Mr.  Dunaway:  I  am  hardly  prepared  to  ansv-er  that  question  because  I  am  en- 
tirely out  of  politics  myself,  and  know  nothing  as  to  what  was  the  purpose  of  the  Demo- 
cratic Convention,  or  what  its  aim  was  in  doing  that;  but  I  will  say  this  to  the  gen- 
tleman: The  people  of  Virginia,  in  voting  that  there  should  be  a  Constitutional  Con- 
vention, did  believe  that  the  Constitution  would  be  submitted  to  them. 

Mr.  Thom:  What  other  object  could  the  Democratic  party  have  had,  in  making 
the  pledge,  except  to  prevail  upon  the  people  of  the  State  to  vote  in  favor  of  holding 
a  Convention? 

Mr.  Dimaway:    I  do  not  know.    Will  the  gentleman  suggest  one? 

Mr.  Thom:  I  cannot  suggest  any,  because  I  think  that  was  their  object.  I  think 
it  was  their  object  to  obtain  the  votes  of  the  people  of  Virginia  in  favor  of  holding 
a  Convention.  Granting,  now,  that  there  vrere  votes  in  the  State  of  Virginia  obtained 
by  that  pledge,  how  can  a  change  of  sentiment  on  the  part  of  the  people  of  Virginia, 
after  that  time,  be  a  sufficient  cause  for  violating  the  pledge  to  the  people  who  were 
prevailed  upon  to  vote  for  the  Convention  by  that  pledge? 

Mr.  Dunaway:    The  term,  '"people,"  is  a  very  indefinitive  expression. 

Mr.  Thom:  Then,  vrere  not  pledges  offered  to  persons,  and  if  so,  how  can  a  change 
of  sentiment  on  the  part  of  the  people  of  Virginia  relieve  the  party  from  the  obligation 
of  keeping  faith  with  those  persons  whose  votes  were  thus  secured? 

Mr.  Dunaway:  It  is  the  majority  in  America  that  makes  alterations  in  Constitu- 
tions. 

Mr.  Thom:    But  it  is  not  a  majority  that  justifies  the  breaking  of  pledges. 

Mr.  Dimaway:  I  believe  that  a  majority  of  the  people  of  Virginia  have  changed, 
and  they  do  not.  to-day.  care  about  anything  that  you  said  in  Norfolk,  or  about  any- 
thing that  is  said  in  the  act  of  the  General  Assembly  under  which  we  are  elected. 
T  believe  that  the  people  of  Virginia  are  utterly  indifferent  to  both  of  those  things. 

Mr.  Thom:  Suppose  they  do  not  care;  suppose,  on  the  contrary,  that  they  are 
absolutely  determined  that  the  thing  now  to  do  is  to  violate  the  pledge,  my  question  is 
how  can  that  violation  be  justified  to  the  persons  whose  suffrages  were  secured  by  mak- 
ing the  pledge? 

Mr.  Dunaway:  If  I  make  a  pledge  to  my  friend  from  Norfolk,  I  am  in  honor 
bound  to  keep  it,  of  course;  but  if  he  should  say  that  he  does  not  wish  me  to  keep 
the  pledge,  then  I  would  not  have  violated  my  promise  to  him. 

Mr.  Thom:  Would  not  that  require  every  man,  whose  vote  was  thus  secured,  to 
come  to  the  Democratic  party  and  release  them?  Is  it  a  question  of  majority,  when 
you  give  a  pledge,  or  is  it  a  question  of  the  obligation  of  the  pledge? 

Mr.  Dunaway:  I  am  satisfied  to  deal  with  all  the  obligation  there  ever  was  upon 
me,  by  the  reflection  that  the  Commonwealth  of  Virginia  is  represented  by  a  majority 
of  her  best  citizens,  and  does  not  care  anything  at  all  for  your  Norfolk  pledges,  or 
for  specific  statements  in  the  act  of  the  General  Assembly,  and  I  believe  that  the  ma- 
jority of  those  citizens  think  that  this  Constitution  should  be  proclaimed. 

Mr.  Brooke :  May  I  ask  the  gentleman  how  he  gets  the  information  that  a  majority 
of  the  people  do  not  care  to  have  the  Constitution  submitted  to  them? 

Mr.  Dunaway:  I  say  that  it  is  my  opinion,  and  it  is  a  firm  conviction  from  read- 
ing the  papers  and  from  talking  with  the  people.  It  is  a  conviction  that  is  forced 
upon  me  by  talking  with  very  many  members  of  this  Convention. 


3200 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Mr.  Brooke:  Then  do  you  not  put  yourself  in  this  position:  That  if  you  have 
made  a  pledge  to  me  and  you  have  obtained  an  impression,  somehow,  or  somewhere,  in 
some  indefinite  way,  that  I  do  not  care  for  it  to  be  kept,  you  need  not  keep  it? 

Mr.  Dunaway:  No,  sir;  I  will  not  admit  anything  of  the  kind.  I  must  get  my 
release  from  you. 

Mr.  Brooke:  I  ask  you  how  to  get  this  release  from  the  people  whose  suffrages 
have  been  obtained  by  the  pledge,  and  who  do  not  personally  release  you. 

Mr.  Dunaway:  I  have  endeavored  to  answer  that  question  by  saying  that  I  do 
not  think  we  are  bound  to  all  of  the  individuals  of  the  State,  but  to  the  majority,  repre- 
senting the  sovereignty  of  the  State. 

I  never  considered  that  I,  for  one,  was  bound  by  that  pledge.  We  are  discussing 
now  questions  of  moral  obligation,  and  I  feel  that  in  all  good  conscience,  I  could  give 
my  vote  in  this  way.  If  other  gentlemen  have  more  tender  and  better,  and  more 
honest  consciences  than  I  have,  they  must  vote  according  to  their  consciences,  and 
leave  me  free  to  go  by  the  dictates  of  my  own.  I  say  I  believe  this  is  the  sentiment 
of  our  people.  I  do  not  claim  that  any  man  can  be  relieved  from  the  obligation  by  a 
vote  taken  in  his  own  county,  because  it  might  be  the  only  county  in  which  the  senti- 
ment was  in  that  way.  The  honorable  gentleman  from  Fairfax  says  that  if  the  people 
of  Fairfax  voted  to  relieve  him,  he  could  not  consider  that  he  was  relieved.  Neither 
could  I,  if  the  people  of  my  own  county  were  the  only  ones  of  that  opinion,  I  should 
not  feel  that  I  was  relieved  in  that  case.  I  will  say  this,  however,  that  to  the  best 
of  my  knowledge  and  belief,  the  particular  constituency  which  I  represent  here  is  in 
favor,  by  a  large  majority,  of  proclaiming  this  instrument;  and  I  owe  some  deference, 
at  least,  to  those  particular  men  who  gave  me  a  seat  in  this  Convention. 

A  great  deal  has  been  said  here  about  what  was  the  opinion  of  men  of  seventy 
years  ago — about  what  Mr.  Thompson  said,  and  what  Mr,  Johnson  said,  and  what 
other  men  said  in  1829.  What  does  that  weigh  with  me?  I  have  the  greatest  venera- 
tion for  the  men  who  sat  in  that  Convention,  but  the  opinions  they  had  then  cannot  be 
quoted  in  favor  of  anything  that  is  existing  in  the  present  condition  of  things.  If  any 
man  could  be  wise  enough  to  tell  me  what  Mr.  Johnson  and  Mr.  Thompson  would  say, 
now  that  the  twentieth  century  has  come,  when  we  are  assembled  in  Constitutional  Con- 
vention, I  would  hear  what  they  had  to  say.  But  they  were  speaking  in  the  midst  of 
circumstances  that  are  totally  different  from  those  with  which  we  are  encompassed. 

This  discussion  has  been  hinging  around  technical  and  fine  drawn  distinctions, 
the  Pennsylvania  idea,  the  Delaware  idea,  the  opinion  of  Mr.  Justice  Agnew,  and  other 
opinions  of  learned  judges.  We  are  discussing  what  the  word  "amend"  means.  We 
have  been,  so  far,  all  the  time  sticking  in  the  bark,  and  have  not  gotten  to  the  heart  of 
this  matter.  It  is  a  grave  question,  not  a  mere  legal  question,  depending  upon  the  con- 
struction of  words.  It  is  a  great  political  question  in  the  history  of  a  great  people,  and 
cannot  be  decided  by  verbal  discriminations  or  distinctions.  Neither  am  I  careful  as  to 
what  were  the  precedents  in  the  past.  There  is  nothing  in  the  past  history  of  Virginia 
that  is  a  precedent  for  the  present  condition  of  this  State.  Like  things  should  be  done 
in  deference  to  the  past,  when  similar  circumstances  arise.  We  are  under  dissimilar 
circumstances  from  any  that  ever  confronted  the  people  of  Virginia  or  a  Constitutional 
Convention  assembled  in  Virginia  for  the  purpose  of  making  a  new  Constitution. 

The  gentleman  from  Henry  asked  what  there  was  in  the  present  condition  of 
affairs  that  justified  a  departure  from  the  ordinary  rules  of  submission.  He  said  that 
he  did  not  see  anything  that  would  justify  it,  and  I  hardly  expected  that  he  would. 
It  is  not  far  to  seek,  perhaps,  why  it  is  the  honorable  gentleman  desired  that  this  Con- 
stitution should  be  submitted  to  the  people  of  Virginia,  if  he  is  like  a  good  many 
others.  It  has  been  said,  I  know  not  with  what  truth — and  I  refer  to  no  particular 
man  upon  this  floor — that  there  may  be  a  few  of  the  members  of  this  Convention  who 
desire  this  instrument  to  be  submitted  to  the  people  in  the  hope,  at  least,  that  it  will 
be  voted  down.    There  is  a  great  deal  in  the  present  condition  of  Virginia  that  can 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA.  3201 

be  well  met  in  no  other  way,  than  hy  the  proclamation  of  this  Constitution.  What 
have  we  now  that  we  never  had  before?  What  have  we  now  that  our  fathers  of  1829 
and  1850  did  not  have?  In  the  first  place,  we  have  negro  suffrage.  We  have  negro 
suffrage  that  was  forced  upon  the  Commonwealth  of  Virginia  at  the  point  of  the  Fed- 
eral bayonets.    They  did  not  have  that. 

Where  is  the  precedent  in  the  past  history  of  Virginia  for  dealing  with  a  great 
question  of  this  kind?    I  answer  that  there  is  none. 

Now,  let  me  give  you  a  few  figures.  The  white  voting  population  of  Virginia  is 
301,379.  The  negro  voting  population  is  146,122;  making  a  grand  total  of  447,551.  One- 
half  of  that  number  of  223,750.  If  you  take  146,000  from  that  one-half— 223,750— you 
have  a  remainder  of  77,628.  What  does  that  mean?  It  means  that  77,000  Virginians 
can  join  with  146,000  negroes  and  deprive  223,000  of  the  white  voters  of  Virginia  of  a 
Constitution  they  desire,  and  one  that  is  necessary  for  the  altered  conditions  of  the 
Commonv/ealth. 

Now,  you  who  favor  submission,  you  who  cannot  adopt  a  Constitution  without  ask- 
ing the  consent  of  the  146,000  negroes  of  Virginia,  may  go  and  do  that  if  you  will; 
and  that  is  just  v/hat  you  will  do  when  you  vote  to  submit  the  Constitution  to  the 
entire  present  electorate.  I  stand  here  in  opposition  to  that,  reflecting  as  I  believe, 
the  sovereign  will  and  desire  of  the  white  voting  population  of  Virginia.  There  sat  in 
this  hall  some  years  ago  twenty-four  negroes,  in  company  with  native  scallawags  and 
carpetbaggers,  who  came  from  across  the  Potomac,  to  make  a  Constitution  that  was  to 
bind  you  and  me  and  our  children,  and  now  that  I  have  the  opportunity,  I  will  endeavor 
to  correct  that  action.  You  may  call  it  if  you  please,  counter  revolution;  if  it  be  revolu- 
tion, make  the  most  of  it.  Revolution  cannot  be  met,  except  by  revolution.  There 
is  no  disgrace  in  the  term.  It  is  simply  the  great  necessity  of  the  present  condition 
of  the  Commonwealth  of  Virginia,  and  I  feel  bound  by  that  necessity.  A  man  owes  his 
highest  allegiance  somewhere,  and  while  I  have  never  cast  any  vote  in  my  life  that 
was  not  for  a  Democratic  ticket,  and  never  expect  to,  yet  there  is  a  bigger  name  than 
Democracy  with  me,  and  that  is  the  name  of  Virginia.  I  confess  an  allegiance  to  the 
Democratic  party.  I  have  considered  that  the  success  of  that  party  coincided  with  the 
welfare  of  my  State;  but  when  it  seems  to  me  that  the  party  is  going  in  a  different 
way  from  what  the  welfare  of  the  Commonwealth  requires,  I  give  my  allegiance  to  the 
State  before  the  party. 

I  do  not  believe  the  gravity  of  the  present  situation  of  our  people  has  been  prop- 
erly appreciated  by  those  who  are  in  favor  of  submitting  the  new  Constitution,  which 
I  believe  to  be  a  good  one,  to  all  of  the  voters  of  this  Commonwealth.  I  believe  that 
we  can  make  a  good  Constitution  for  the  colored  people  of  Virginia;  I  had  rather  that 
these  one  hundred  men,  assembled  here  in  the  Capitol,  should  say  what  is  to  be  the 
organic  law  under  which  I  and  my  children  are  to  live,  than  to  submit  the  question 
to  an  alien,  hostile,  ignorant,  and  prejudiced  race.  I  do  not  believe  that  those  who 
have  hitherto  spoken  upon  this  subject  have  properly  considered  the  gravity  of  this 
question  and  all  that  is  involved  in  it.  I  feel  that  incasting  my  vote,  as  I  intend 
to  do,  I  am  really  carrying  out  the  wishes  of  the  Democratic  party  and  the  wishes  of 
the  people  of  Virginia,  better  than  are  those  gentlemen  who  wish  to  submit  this  in- 
strument to  all  the  voters  of  the  Commonwealth.  Why  did  you  have  a  Constitutional 
Convention?  What  was  the  uppermost  question  before  the  people  of  Virginia  at  the 
time  the  Convention  was  called?  A  reformation  of  the  suffrage  article.  But  for  that 
I  venture  to  say,  you  would  not  have  had  this  present  Convention  called.  And  now, 
that  this  new  article  has  been  adopted,  you  would  run  the  risk  of  having  the  chief 
purpose  for  which  you  came  here  thwarted,  and  your  work  made  null  and  void,  by 
requiring  submission  to  all  the  voters  of  the  Commonwealth.  I  cannot  consent  to  do 
that.  The  time  has  come  in  the  history  of  Virginia  when  we  need  a  great  change  in 
our  political  methods.  The  gentleman  from  Henry  says:  Let  all  the  negroes  keep  on 
voting.    He  says:  Submit  the  Constitution  to  the  present  electorate.    And  he  says  in 


3202  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

the  same  breath,  with  a  perfectly  honest  intention  and  purpose,  I  have  not  a  particle 
of  doubt,  that  our  election  methods  ought  to  be  purified.  No  man  here  will  take  issue 
with  him  upon  the  subject  that  the  election  methods  ought  to  be  purified.  But  I  stand 
here  in  my  place  and  tell  the  gentleman  from  Henry  that  the  election  methods  in  Vir- 
ginia will  not  be  purified  so  long  as  there  is  no  abridgment  of  the  present  electorate, 
for  the  decree  has  gone  forth;  this  is  a  white  man's  State,  and  shall  be  dominated  by 
the  white  man.  (Applause.)  However  the  white  man  hates  it  in  his  soul,  he  will  use 
fraud  to  carry  an  election  before  he  will  be  dominated  by  the  negro.  You  can  never 
get  purity  of  election  until  you  have  first  changed  the  electorate,  and,  in  my  judgment, 
you  will  never  get  the  altered  electorate  unless  you  proclaim  this  Constitution.  But 
these  gentlemen  will  say:  "We  will  sweep  the  Commonwealth  with  this  new  instru- 
ment." I  say,  no.  Why  do  I  say  so?  In  the  first  place,  is  there  a  man  who  hears 
me,  who  supposes  that  a  single  one  of  the  146,000  negro  voters  in  Virginia  will  vote 
for  the  new  Constitution  that  disfranchises  him,  perhaps,  or  if  it  does  not,  disfranchises 
one  of  his  own  color?  Is  there  any  man  who  supposes  that  there  will  be  a  single  one 
of  them  on  election  day  who  will  stay  away  from  the  polls?  They  have  been  indif- 
ferent about  elections  heretofore  perhaps,  but  if  you  submit  this  Constitution  to  the 
full  electorate,  while  I  am  not  a  prophet,  I  can  tell  you  of  some  people  who  are  going 
to  be  at  the  polls  very  early  in  the  morning,  and  who  will  insist  upon  the  depositing 
and  the  counting  of  their  ballots.  Then,  again,  since  the  Democrats  (unwisely,  in  my 
opinion)  made  this  a  party  question,  I  am  not  at  all  surprised  that  the  Republican 
party  in  Virginia  has  made  it  a  party  question  also;  and  while  I  think  there  are  some 
gentlemen  of  that  party  in  this  Convention  who  so  admire  this  Constitution  that  they 
will  vote  for  it,  and  work  for  it;  yet  I  do  not  believe  that  is  true  of  the  majority  of 
the  white  Republicans  of  Virginia.  I  have  reason  to  think  that  the  masses  of  the 
white  Republicans  of  Virginia  will  vote  against  your  new  Constitution,  Have  they 
not  given  you  warning  of  their  purpose?  I  have  not  a  copy  of  the  platform  that  was 
adopted  in  their  State  Convention  last  year,  when  they  nominated  a  Governor,  but  I 
think  I  remember  reading  in  the  papers,  at  the  time,  that  the  party  in  its  platform  de- 
clared against  this  Convention  and  against  the  new  Constitution.  If  I  am  in  error 
about  that  I  will  thank  any  gentleman  upon  the  floor,  be  he  Republican  or  Democrat, 
to  correct  me.  In  other  words,  the  party  in  the  State  is  committed  against  it.  Then 
you  must  remember  that  there  are  a  good  many  apathetic  Democrats  in  the  State  of 
Virginia  who  will  not  go  to  the  polls;  and  you  must  remember,  also,  that  there  are  a 
great  many  who,  while  they  are  not  apathetic,  will  work  against  this  Constitution  and 
endeavor  to  vote  it  down.    I  have  not  a  doubt  about  that. 

Mr.  Davis:  If  I  understand  you,  you  want  to  proclaim  the  Constitution  because  the 
people  of  Virginia  do  not  want  it. 

Mr.  Dunaway:  I  want  to  proclaim  the  Constitution  because  the  majority  of  the 
-White  men  of  Virginia  want  it.  (Applause.) 

My  friend  from  Winchester  seemed  really  to  be  suffering  the  other  day.  (Laugh- 
ter.) A  spasm  came  over  his  face  when  he  talked  about  ramming  the  Constitution 
down  the  throats  of  an  unwilling  people.  My  friend  from  Wythe  said  the  people  of 
Virginia  did  not  want  it.  He  harrowed  our  sympathies  by  telling  us  of  a  sick  neighbor, 
who  seemed  to  be  just  on  the  point  of  being  forced  to  take  some  very  disagreeable 
medicine  that  he  did  not  want,  and  that  his  neighbor  thought  he  ought  to  have.  In 
regard  to  forcing,  I  want  to  say  this:  It  is  not  in  the  power  of  100  men  to  force  the 
Commonwealth  of  Virginia.  It  took  a  great  many  more  men  than  100  to  force  the 
old  Commonwealth,  and  the  Commonwealth  of  Virginia  cannot  be  forced  by  this  Con- 
vention. I  love  my  State  too  well  to  think  of  the  exercise  of  force  in  this  matter.  I 
am  neither  so  wicked  or  so  foolish  as  to  attempt  to  force  anything  upon  the  people 
I  love,  the  sovereign  people  of  Virginia.  There  is  no  such  thought  as  that  on  the  part 
of  the  proclamationists  in  this  Convention.  The  figure  that  was  used  by  the  gentle- 
man from  Wythe  was  not  a  very  appropriate  one.  I,  too,  might  be  allowed  to  suppose 
a  case.    I  might  come  to  the  gentleman  from  Wythe  without  his  invitation,  with  a 


\ 


DEBATES  OF  THE  COIs^STITUTIOIs^AL  CONVENTION  OF  VIRGINIA.  3203 

beautiful  and  luscious  strawberry,  covered  over  with  sugar,  in  a  silver  spoon,  with  a 
gold  bowl,  and  he  might  say,  "  I  did  not  tell  you  to  bring  me  that."  I  would  say,  "  No, 
you  did  not;  but  here  I  am.  Open  your  mouth."  And  open  his  mouth  flies,  and  he 
takes  it  down.  I  did  not  force  him  to  do  it.  He  opens  his  mouth  wide  because  he 
wants  it.  That  is  just  about  the  way  it  is  with  the  old  Commonwealth  of  Virginia. 
She  will  accept  the  Constitution,  when  proclaimed,  just  because  it  is  what  she  desires. 
(Laughter.) 

While  you  cannot  force  the  people,  there  are  more  ways  to  obtain  the  assent  of 
the  people  than  by  a  popular  vote.  That  is  not  always  a  sure  index  of  the  best  wishes 
of  the  people.  Silence  gives  consent.  Assent  gives  validity  to  an  instrument.  You 
saw  how  it  was  in  1776.  The  people  just  organized  under  it.  I  will  tell  you  what 
will  happen  if  you  proclaim  this  Constitution.  You  will  have  the  schedule  under 
which  the  General  Assembly  will  meet  here  in  November — they  will  not  wait  until 
December;  they  are  just  ready  to  come.  They  will  come  and  proceed  to  put  the  new 
instrument  into  effect,  provide  for  the  election  of  officers,  and  all  that  sort  of  thing, 
and  the  old  State  will  move  off  under  her  new  regime.  The  great  bulk  of  the  better 
class  of  the  people  will  take  it,  and  give  it  validity  by  their  acquiescence.  That  is 
the  only  way  you  can  bind  the  people.  The  people  of  Virginia  to-morrow  might  vote 
to  a  single  man,  white  and  black,  and  they  would  have  this  Constitution.  Are  they 
bound  by  it.  No  longer  than  they  wish.  To  change  it  they  can  call  a  convention  the 
very  next  week,  saying:  "I  have  changed  my  mind.  I  do  not  want  it."  So,  in  regard 
to  laws  and  constitutions,  it  is  the  assent  of  the  people  alone  that  gives  validity  to 
the  instruments,  and  they  can  change  them  whenever  they  will,  but  so  long  as  they 
acquiesce  in  them  they  are  valid. 

I  propose  to  give  them  this  Constitution  because  I  think  they  want  it,  and  because 
I  believe  they  will  go  to  work  under  it,  and  prosper.  They  will  have  under  it  a  degree 
of  material  prosperity  such  as  has  never  been  known  heretofore  in  the  Commonwealth 
of  Virginia. 

Mr.  Thom:  Do  you  base  your  idea  of  the  validity  of  the  Constitution  on  the  idea 
of  the  acceptance  of  the  people  through  the  Legislature,  or  upon  the  power  of  this 
Convention  ? 

Mr.  Dunaway:  Neither  one.  The  bare  fact  of  their  acceptance  of  it  and  organ- 
izing under  it  gives  it  as  much  validity  as  if  every  man,  Vv'oman  and  child  in  the  Com- 
monwealth voted  for  it. 

Mr.  Thom:  But,  do  you  claim  it  would  be  valid  without  the  acceptance  by  the 
Legislature,  or  the  political  arm  of  the  government? 

Mr.  Dunaway:  If  the  gentleman  from  Norfolk  supposes  that  the  present  General 
Assembly  of  Virginia,  if  we  proclaim  this  Constitution,  will  refuse  to  assemble  under 
the  schedule  adopted  by  this  Constitution,  of  course,  the  Constitution  could  not  go 
into  effect  without  legislative  enactment;  but  I  make  no  such  supposition. 

Mr.  Thom:  Suppose  that  prior  to  the  time  of  the  assembling  of  the  General  As- 
sembly the  question  was  properly  raised  in  court.  Do  you  contend  the  court  would 
decide  that  this  Constitution  was  valid  by  the  mere  act  of  proclaiming,  or  are  you 
relying  for  the  validity  of  the  Constitution  upon  its  subsequent  acceptance  by  the 
political  arm  of  the  government? 

Mr.  Dunaway:  The  argument  I  was  making  requires  that  I  should  say,  I  was 
relying  upon  the  acceptance  and  acquiescence  of  the  people.  Upon  the  other  question, 
that  it  would  be  valid  upon  a  mere  promulgation  by  this  body,  I  have  not  expressed 
an  opinion. 

Mr.  Thom:    Do  you  object  to  giving  it? 

Mr.  Dunaway:  I  studied  law  under  an  old  lawyer,  years  ago,  who  had  a  way  of 
saying,  when  he  was  not  positive,  'T  incline  to  think."  I  incline  to  think  it  would 
be  valid. 

I  thank  you,  gentlemen.  (Applause.) 

On  motion  of  Mr.  P.  W.  Campbell  the  Convention  adjourned  until  to-morrow  (Wed- 
nesday), May  28th,  at  10  o'clock  A.  M. 


3204 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


WEDNESDAY,  May  28,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Richard  Mcllwaine,  D.  D, 

METHOD  OF  ADOPTING  THE  CONSTITUTION. 

The  President:  The  unfinished  business  before  the  Convention  this  morning  is  the 
further  consideration  of  the  resolution  offered  by  the  gentleman  from  Campbell  (Mr. 
Daniel)  as  to  the  disposition  to  be  made  of  the  Constitution. 

Mr.  Robertson:  Mr.  President,  I  have  no  intention  of  making  an  argument  with 
reference  to  the  pending  question,  but  as  the  time  is  drawing  near  v/hen,  under  the 
resolution  offered  by  the  gentleman  from  Campbell,  v/e  will  have  to  vote  on  this  ques- 
tion, I  consider  it  due  to  myself  and  to  my  constituents  that  I  should  state  the  reasons 
why  I  intend  to  vote'  for  the  submission  of  the  Constitution  which  we  have  framed  to 
the  entire  electorate  of  this  State.  I  do  not  propose  to  argue  either  the  legal  or  the 
moral  aspect  of  this  matter.  My  experience  in  life  has  taught  me  that  it  is  of  no  use 
to  argue  questions  of  this  sort  before  people  who  have  to  vote  upon  them.  If  two 
men  differ  as  to  a  moral  proposition  to  start  v/ith,  the  more  they  talk  about  it  the  more 
they  differ.  If  two  lawyers  differ  about  a  legal  proposition  in  v/hich  they  have  an  in- 
terest, and  where  they  have  already  made  up  their  minds,  the  more  they 
talk  about  it,  the  more  they  differ.  I,  for  one,  do  not  believe  that  any 
argument  from  any  man  in  this  body,  whatever  may  be  his  intellect,  whatever 
may  be  his  pov/ers  as  an  orator,  will  have  the  slightest  effect  upon  the  determination 
of  this  question.  But  I  do  think  that  it  is  due  to  the  people  of  Virginia,  and  it  is  due 
to  ourselves,  not  to  decide  this  question  without  letting  the  people  know  why  it  is  we 
do  it.  I,  for  one,  am  unwilling  for  the  people  who  live  in  Virginia  now,  and  for  those 
who  come  after  us,  to  see  just  the  naked  act  of  our  voting,  one  way  or  the  other,  and 
not  knov/  why  we  so  voted.  So  far  as  I  am  concerned,  I  will  state  frankly  to  this  Con- 
vention that  I  have  not  followed  the  example  of  my  legal  brethren  in  this  body,  and 
undertaken  to  search  up  authorities  of  law  to  determine  a  judicial  question,  which 
we  cannot  possibly  determine.  As  I  understand  the  proposition  before  us,  it  makes 
no  difference  how  we  determine  this  judicial  question,  our  decision  will  have  no  finality. 
We  do  not  sit  here  as  judges  of  law.  We  sit  here  as  law-makers,  making  the  highest 
kind  of  law,  making  fundamental  and  governmental  law  for  this  people;  and  it  makes 
no  difference  how  we  decide  as  to  our  rights,  because  our  decision  can  have  no  bind- 
ing effect  before  the  court  before  which  this  question  will  have  to  be  decided.  But 
this  debate  has  developed  the  fact,  and  I  believe  every  man  reasoning  with  reference 
to  this  thing  has  developed  the  fact  in  his  own  mind,  that  it  is  a  question  about  which 
there  can  be  an  honest  difference  of  opinion  amongst  the  lawyers  in  this  body.  I  be- 
lieve this  body  contains  some  of  the  best  lawyers  in  the  State  of  Virginia.  They  are 
on  opposing  sides  of  this  question.  Both  sides  are  heated  by  the  controversy  that  has 
been  developed  by  this  debate.  They  differ  honestly,  and  the  fact  is  evident  that 
there  is  necessarily  a  doubt  as  to  how  this  question  v/ill  be  determined  by  the  court, 
if  it  ever  should  come  into  court.  The  distinguished  gentleman  from  Hanover  (Mr. 
Carter),  a  gentleman  for  whose  legal  opinion  I  have  the  highest  regard,  for  there  is 
no  man  in  this  State  whom  I  would  be  more  willing  to  consult  in  reference  to  my  pri- 
vate interests  and  as  to  my  legal  rights,  is  thoroughly  convinced,  in  his  own  mind, 
that  we  have  a  right  to  proclaim  this  Constitution.  But  the  gentleman  from  Hanover 
knows,  and  all  of  us  know,  that  he  has  been  thoroughly  convinced  many  times  in  his 
life  that  he  was  right  about  a  legal  proposition,  and  yet  the  Court  of  Appeals  has  de- 
cided that  he  was  wrong.  I  do  not  suppose  the  gentleman  will  claim  that  he  is  infal- 
lible.   I  am  not  attempting  to  throw  bouquets  to  my  friends  here  in  this  last  speech 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA.  3205 

that  I  shall  make,  but  I  say  in  all  earnestness  that  the  gentleman  from  Winchester, 
who  is  considered  by  everybody  that  knows  him,  as  one  of  the  best  circuit  judges  in 
this  State,  a  man  who  has  one  of  the  finest  legal  minds  I  know,  a  man  whose  con- 
science is  as  clear  and  whose  head  is  as  clear  "'as  that  of  the  gentleman  from  Han- 
over, differs  radically  from  him.  The  gentleman  from  Fairfax  differs  from  him.  Now, 
it  has  been  stated  on  this  floor  by  the  gentleman  from  Fairfax  that  one  gentleman 
who  has  presided  over  our  Court  of  Appeals  has  expressed  an  opinion  about  this  mat- 
ter, and  some  of  these  gentlemen  say  that  fact  makes  no  difference.  I  say  that  is  an 
important  matter  for  us  to  consider  here,  that  a  man  who  has  been  considered  worthy 
to  sit  upon  the  Court  of  Appeals  has  expressed  an  opinion  adverse  to  that  held  by  the 
gentleman  from  Hanover.  I  am  going  to  be  perfectly  frank  with  this  Convention.  I 
do  not  believe  in  a  man  not  being  frank,  because  this  is  too  grave  a  matter  for  us  not 
to  be  frank  with  each  other  in  this  debate,  either  by  parliamentary  tactics  or  other- 
wise, because  this  is  a  matter  the  people  of  Virginia  are  deeply  interested  in,  and 
there  can  be  no  question  we  have  to  consider  which  is  more  important  than  this.  I 
say  I  will  be  perfectly  frank  about  it.  When  I  first  came  to  this  Convention,  and  when 
this  matter  first  came  up  here,  I  was  thoroughly  convinced  that  the  position  taken  by 
the  gentleman  from  Campbell  (Mr.  Daniel),  who  opened  this  debate,  vras  the  correct 
one. 

Mr.  Brooke:  I  think  the  expression  used  by  the  gentleman  just  now  ma^^  have 
created  an  erroneous  impression  on  members  of  the  Convention,  I  think  I  know  what 
the  gentleman  meant.  I  am  referring  to  what  you  just  said  in  regard  to  the  expres- 
sion of  opinion  of  a  judge  of  the  Court  of  Appeals.  You  spoke  of  him  as  being  a  judge 
who  presided  upon  the  bench  of  the  Supreme  Court,  and  in  such  a  way  that  the  im- 
pression may  have  been  made  that  he  was  one  of  the  present  judges  of  the  Court 
of  Appeals.    I  think  you  did  not  intend  to  give  that  impression. 

Mr.  Robertson:  No,  sir.  I  will  correct  that.  I  did  not  like  to  mention  the  gen- 
tleman's name,  because  I  did  not  know  v^hether  or  not  it  would  be  agreeable  to  him. 
However,  I  do  not  believe  that  he  v/ould  object  to  it.  I  refer  to  the  Hon.  A.  A.  Phle- 
gar,  of  Christiansburg.    I  talked  with  him  the  other  day. 

As  I  started  to  say,  when  I  first  heard  the  matter  discussed  I  frankly  admit  that 
r  thought  the  powers  of  this  Convention  v\-ere  complete  as  those  claimed  for  it  by 
the  gentleman  from  Campbell.  I  thought  that  vre  had  a  right  to  proclaim,  or  a  right 
to  submit  to  a  restricted  electorate,  or  a  right  to  submit  to  the  present  electorate.  I 
am  not  prepared  to  say  what  my  opinion  is  now,  because  I  must  confess  the  argu- 
ments that  have  been  made  here  have  shaken  me  very  much  in  regard  to  that  matter. 
I  recognize,  and  this  Convention  ought  to  recognize,  that  the  opinions  of  these  gentle- 
men are  entitled  to  weight;  and  the  arguments  presented  by  them  have  made  me 
doubtful  about  my  judgment  on  this  point.  There  are  very  few  cases  to  be  found  bear- 
ing upon  this  subject.  It  is  a  matter  that  goes  dov,m  into  the  fundamental  principles 
of  government.  I  speak  of  this  because  it  does  seem  to  me  that  we  ought  to  consider 
the  question  from  this  standpoint.  There  is  a  doubt  as  to  our  legal  right  to  proclaim 
this  Constitution.  I  do  not  believe  any  man  can  controvert  that.  I  do  not  care  what 
he  may  say  about  there  being  no  doubt  in  his  own  mind,  there  is  a  doubt  in  the  minds 
of  other  members  of  the  Convention,  and  there  is  doubt  in  the  minds  of  the  people 
of  Virginia.  No  man  can  claim  that  he  knows  how  the  Court  of  Appeals  will  decide 
this  question.  Now,  gentlemen,  should  not  that  make  us  pause?  Is  not  that  a  legiti- 
mate argument  to  address  to  this  Convention?  There  can  be  no  doubt  that  if  this 
Constitution  is  submitted  to  the  people,  and  they  ratify  it,  it  will  then  be  a  valid  Con- 
stitution, which  no  court  can  disregard;  but  if  there  be  a  doubt  as  to  how  the  courts 
will  decide  this  question,  is  it  not  a  proper  matter  for  consideration  even  to  a  man 
w^ho  is  most  deeply  bent  upon  proclaiming?  Is  it  not  a  matter  that  should  make  him 
pause  and  consider  whether  he  may  not  be  throwing  away,  as  the  gentleman  from 
Fairfax  so  eloquently  portrayed,  the  work  that  we  have  been  engaged  in  here  for 


3306 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


nearly  a  year?  Gentlemen,  I  believe  the  people  of  Virginia  desire  to  have  this  Con- 
stitution go  into  effect.  If  we  can  judge  by  the  press,  there  seems  to  be  a  universal 
sentiment  in  favor  of  it.  Nobody  has  heard  of  any  organized  body  of  the  people  op- 
posing  it.  Nobody  has  heard,  so  far  as  I  know,  of  many  individuals  opposing  it.  The 
proposition  I  make  is  that  we  ought  to  trust  the  people  in  reference  to  this  thing.  Do 
the  safe  thing.  Do  not  let  us  do  a  doubtful  thing,  and  lose  the  benefit  of  all  our  labors. 
If  we  have  a  Constitution  ratified  by  the  people  it  is  certainly  valid.  If  we  proclaim  it 
no  man  on  this  floor  can  say  that  he  knows  it  is  certainly  valid.  Now,  that  is  the 
first  reason,  but  by  no  means  the  only  reason,  that  actuates  me  in  opposing  the  pro- 
clamation of  the  Constitution.  If  I  did  not  have  the  slightest  doubt  about  this  matter, 
if  I  was  absolutely  sure,  if  I  knew  the  opinion  of  every  judge  upon  the  bench  of  the 
Supreme  Court  of  Appeals  in  regard  to  this  matter,  and  knew  that  we  had  the  legal 
right  to  proclaim  this  Constitution,  I,  for  one,  would  feel  that  I  was  doing  an  injury 
to  my  beloved  State  if  I  voted  to  do  what  the  gentlemen  in  favor  of  proclamation  are 
asking  us  to  do. 

Mr.  President,  I  said  in  the  beginning  that  I  would  not  make  an  argument.  I  am 
just  stating  my  own  position.  I  am  not  going  to  undertake  to  tell  the  gentleman  in 
this  Convention  what  they  should  do  from  a  moral  standpoint;  but  so  far  as  I  am  con- 
cerned, I  have  been  brought  up  In  the  belief,  and  I  cannot  get  rid  of  it — the  matter  is 
as  deep  in  my  nature  as  anything  that  is  in  any  nature — that  honor  and  honesty  ought 
to  obtain  in  politics  just  as  much  as  in  private  life.  In  private  I  have  been  laughed  at 
by  men  for  whom  I  have  the  highest  regard,  for  uttering  these  sentiments;  but  I  believe 
if  we  wish  the  people  of  Virginia  to  continue  to  prosper,  if  we  wish  to  lift  up  our  people 
and  keep  them  on  a  high  plane  for  the  future,  it  is  our  duty  to  try  to  introduce  into  our 
politics  as  high  a  standard  of  morality  as  we  already  conform  to  in  our  private  lives. 
There  are  no  people  in  the  world  who  have  a  higher  standard  in  private  life  than  Vir- 
ginians, and  I  hope  to  God  the  day  will  never  come  when  in  our  political  life  we  will 
think  we  have  a  right  to  do  things  we  would  not  do  in  private  life.  I  have  been  brought 
up  to  the  view  that  that  cannot  rightfully  be  done.  I  believe  (if  we  care  to  take  a  low 
viev/  of  it)  that  it  is  the  best  policy  in  the  long  run;  but  apart  from  the  matter  of  policy, 
we  ought  to  do  it  anyhow,  because  it  is  right. 

To  my  mind,  we  have  made  a  solemn  pledge.  I  cannot  qualify  that  pledge,  as 
some  gentlemen  have,  by  saying  it  was  made  to  any  particular  part  of  the  people. 
The  Democratic  Convention  in  Norfolk  adopted  a  platform.  A  platform,  if  it  means 
anything,  is  a  pledge  that  if  the  party  prevails  and  comes  into  power  it  will  do  cer- 
tain things.  For  gentlemen,  who  ran  for  this  Convention  in  Democratic  primaries, 
and  who  did  not  state  to  the  people  that  they  would  not  stand  upon  the  platform,  to 
get  up  here,  and  say  that  they  do  not  care  a  snap  of  their  fingers  for  what  that  con- 
vention did,  is  something,  I  confess,  I  cannot  understand.  I  do  not  impugn  the  motives 
of  those  gentlemen.  We  look  at  it  from  a  dilTerent  moral  standpoint — that  is  all. 
But  as  for  ifiyself,  I  would  consider,  if  I  had  never  said  a  word  about  this  question, 
that  if  I  ran  in  a  Democratic  primary  and  kept  silent  about  it,  the  people  would  have 
a  right  to  think  that  I  believed  in  the  party  platform  upon  which  I  ran.  Now,  gentle- 
men, how  about  this  matter  of  being  released  from  the  party  pledge?  While  a  man 
may  feel  under  the  deepest  obligations  to  his  constituents,  I  do  not  consider  that  he 
can  be  released  from  a  previous  pledge  made  to  the  whole  people  of  Virginia  by  the 
political  party  to  which  he  owns  allegiance.  I  say  here,  and  I  say  it  openly,  that 
while  it  would  embarrass  me  to  the  greatest  extent,  and  while  I  would  hate  to  be  put 
in  that  embarrassing  position,  no  constituency  that  I  represent,  would,  in  my  opinion, 
be  able  to  release  me  from  a  pledge  that  I  had  solemnly  engaged  to  fulfill  before  I  was 
elected.  Gentlemen  have  overlooked  the  fact,  too,  I  think,  that  this  pledge  is  not  sim- 
ply a  question  of  our  election  to  this  body.  The  pledge  goes  back  further.  It  was  not 
Bimply  a  pledge  to  this,  that  and  the  other  constituency  in  Virginia.  Every  member  of 
this  body  remembers  that  the  question  of  calling  a  Constitutional  Convention  in  Vir- 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  TIEGIXIA. 


3207 


ginia  has  been  three  times  before  our  Legislature  within  recent  years.  In  the  year 
1888,  the  question  was  submitted  to  the  people,  and  the  people  overwhelmingly  de- 
feated the  calling  of  a  Constitutional  Convention.  If  I  recollect  aright,  there  was  not 
as  many  votes  cast  for  it.  I  think  3,000  and  some  odd  votes  were  cast  for  the  calling 
of  the  Convention,  Time  went  on,  and  in  the  year  1897  the  Legislature  of  Virginia 
again  submitted  to  the  people  of  Virginia  the  question,  shall  we  call  a  Constitutional 
Convention?  and  it  was  again  overwhelmingly  defeated — though  by  not  quite  so  large 
a  majority. 

In  the  Legislature  of  1900,  the  question  was  again  submitted,  and  I  do  not  believe 
that  there  is  any  man  in  Virginia  who  knows  anything  about  the  political  conditions 
then,  who  can  honestly  say  that  this  Convention  would  have  been  called  by  the  people, 
if  the  Democratic  party  at  Norfolk  had  not  taken  it  up,  and  made  it  a  party  issne.  It 
is  a  matter  of  current  knowledge  of  the  times,  and  everybody  knows  about  it.  My 
recollection  is — I  did  not  have  the  misfortune  to  be  even  remotely  connected  with  poli- 
tics in  those  days,  and  I  wish  to  God  I  had  not  gotten  aiij  nearer  since — that  the 
distinguished  gentleman  from  Campbell  (Mr.  Daniel)  who,  by  his  splendid  talents  and 
by  his  great  and  honorable  services  to  the  people  of  Virginia  ever  since  the  close  of 
the  civil  war  deserved  to  be,  and  was  the  leader  of  Democratic  thought  in  Virginia  at 
that  time,  and  still  is  to-day,  espoused  the  cause  of  calling  this  Constitutional  Conven- 
tion, and  that  it  was  on  account  of  his  doing  so,  largely,  that  the  people  of  A^irginia  in 
that  Democratic  Convention,  decided  to  make  it  a  party  issue.  There  was  a  difference 
of  opinion  among  the  people  at  that  time.  There  was  a  large  section  of  the  Demo- 
cratic party  that  thought  it  was  unwise  to  call  this  Convention.  They  thought  that 
having  lived  under  the  Underwood  Constitution — much  as  it  has  been  abused  on  ac- 
count of  the  personnel  of  the  Convention  that  framed  it — for  thirty  years,  we  could 
live  under  it  probably  for  a  few  more  years.  Virginia  had  prospered  under  it.  The 
people  of  Virginia  had  previously  shown  that  they  were  opposed  to  holding  a  Consti- 
tutional Convention,  and  there  was  still  a  great  difference  of  opinion  as  to  whether 
this  Convention  should  be  called  or  not.  It  was  only  by  the  Democratic  party  making 
it  a  party  issue,  and  hedging  it  around  with  provisos  as  to  what  would  be  done  by  the 
party  that  this  Convention,  in  which  we  are  sitting  to-day,  came  into  being.  I  do  not 
believe  any  man  on  this  floor  can  deny  that. 

I  do  not  deny  that  there  are  individuals  here  who,  when  they  ran,  distinctly  stated 
before  the  people  that  they  did  not  stand  on  the  Democratic  platform.  I  believe  the 
gentleman  from  Hanover  is  one,  and  there  are  a  number  of  gentlemen  who  ran  on 
that  understanding.  Those  gentlemen  may  vote,  of  course,  as  they  think  right.  In 
my  opinion,  they  are  at  perfect  liberty  to  vote  as  they  wish;  but  I  submit  to  this  Con- 
vention that  the  vast  majority  of  its  members  either  said  nothing  on  that  subject,  or 
told  the  people  they  would  vote  for  submission  to  the  people.  How,  gentlemen,  can 
we  be  released  from  the  obligations  assumed  to  the  people  of  Virginia  in  that  Nor- 
folk Convention?  By  somebody  afterward  finding,  as  they  imagine,  that  they  have 
sworn  to  their  own  hurt,  as  the  gentleman  from  Lancaster  says,  and  that  they  have 
a  right  to  change?  I  have  been  brought  up,  gentlemen,  to  believe  in  the  noble  sen- 
timent expressed  in  the  Psalms,  that  man  who  "sweareth  to  his  own  hurt  and  changeth 
not"  shall  never  be  moved.  No  argument  ought  to  be  produced  here  to  drive  us  into 
proclaiming  this  Constitution  out  of  our  fears  that  the  people  of  Virginia  will  vote  it 
down,  if  it  is  submitted  to  them.  Gentlemen,  that  is  the  strongest  argument,  to  my 
mind,  why  we  should  submit  the  Constitution  to  the  people.  Are  we  afraid  of  our 
own  people?  Are  we,  one  hundred  men  here,  so  wise  and  great  and  mighty  that  we 
will  arrogate  to  ourselves  all  the  wisdom  and  good  in  this  State,  and  say  that  the 
Democratic  voters,  and  the  great  mass  of  the  white  people  of  Virginia,  are  unable  to 
understand  the  good  that  we  have  done  for  them?  But,  gentlemen,  even  if  the  argu- 
ment that  there  is  danger  of  its  being  defeated  were  true — and  I  absolutely  deny  it, 
for  the  sentiment  for  proclamation  throughout  the  State  shows  that  the  people  are  in 


3208 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


favor  of  it — but  even  if  there  was  a  danger,  even  suppose  that  the  hopes  of  these  gen- 
tlemen who  have  worked  and  labored  here  to  get  this  Constitution  together,  should 
be  doomed  at  the  polls,  is  that  any  argument,  in  a  body  of  Virginias,  why  we  should 
go  back  on  a  solemn  pledge?  The  Democrats  in  Virginia  are  not  the  only  people  in 
Virginia.  We  have  no  right  to  make  any  such  assertion  as  that  a  party  platform  Is 
only  good  for  the  people  M^ho  are  going  to  vote  for  it.  It  is  nonsense.  We  would  not 
have  any  platform  if  we  were  not  appealing  to  everybody.  We  are  trying  to  make 
friends,  we  are  trying  to  get  people  into  our  party,  and  to  say  that  we  made  a  platform 
for  the  purpose  of  getting  Democrats  to  vote  for  Democrats  is  the  most  remarkable 
proposition  I  ever  heard.  No  party  can  arrogate  to  itself  that,  "We  are  the  people." 
There  are  white  Republicans  in  this  State.  Some  of  the  gentlemen  argue  that  we  did 
not  make  this  pledge  to  the  great  horde  of  black  voters  that  we  have  upon  us,  but 
that  we  made  it  to  the  white  people  of  Virginia.  Gentlemen,  there  are  some  very  re- 
spectable white  Republicans  in  this  State.  There  are  a  great  many  white  Republicans 
in  this  State  just  as  good  as  any  Democrat  in  this  Convention,  morally,  whether  they 
be  so  politically  or  not.  Did  we  not  make  the  pledge  to  those  people  as  much  as  we 
did  our  own  people?  Were  we  not  trying  to  get  all  those  people  to  vote  to  hold  this 
Convention?  Why,  in  my  ov/n  city,  and  throughout  Southwest  Virginia,  which,  I  thank 
God,  is  beginning  to  prosper,  the  whole  country  is  filling  up  with  people  from  the 
North.  There  are  Northern  Republicans  in  my  city,  that  vote  the  Democratic  ticket 
on  local  matters  at  every  election,  and  yet  in  national  matters  they  are  Republicans. 
Numbers  of  them  voted  for  this  Convention,  as  I  have  reason  to  believe.  Can  we  get 
together  here,  and  say  that  we,  the  Democratic  party,  as  a  political  party,  constitute 
the  people  of  Virginia? 

Most  of  us  here  are  Democrats,  it  is  true;  still,  there  are  a  large  number  of  people 
not  in  our  party.  Did  we  not  make  the  pledge  to  them?  Did  we  make  it  to  any  par- 
ticular county  in  the  State?  Did  v/e  not  make  it  to  the  State  at  large,  and  was  not 
the  question  submitted  to  the  people  as  an  entirety?  How  can  we  get  out  of  that 
pledge.  That  is  the  question  I  v/ant  gentlemen  to  consider  before  they  vote  on  this 
question.  I  do  not  intend  to  make  the  slightest  attack  on  any  man  who  differs  with 
me.  I  would  not  think  of  doing  it,  because  I  knov/  we  are  all  fallible,  that  we  are  all 
governed  by  what  we  believe  to  be  right,  but  what  we  believe  to  be  right  is  governed 
and  colored  by  our  own  Constitution's  temperaments  to  start  with,  by  our  surround- 
ing circumstances,  and  alas!  also  often  by  our  self-interests.  I  know  I  am  subject  to 
the  same  weaknesses  that  other  men  are;  but  I  do  consider  it  my  right  to  appeal  to 
the  gentlemen  of  this  Convention  who  have  said  they  have  made  up  their  minds  about 
this  matter,  to  gravely  weigh  this  question,  and  see  if  they  cannot  reconsider  it. 

I  do  not  intend,  as  I  said,  to  argue  the  legal  question  involved.  I  want,  further,  to 
state  (and  that  is  what  I  got  up  for  mainly,  but  v/hen  I  get  on  my  feet  I  sometimes 
talk  more  than  I  intend)  that  when  I  became  a  candidate  for  this  Convention,  I  ran 
in  a  Democratic  primary,  where  v/e  had  one  of  the  hottest  little  fights  we  have  ever 
had  in  that  hot  little  town  of  Roanoke.  The  people  of  that  city  called  on  me  for  my 
views  in  regard  to  certain  matters,  and  I  frankly  answered  them.  One  of  the  first 
questions  they  addressed  to  me  was:  Are  you  in  favor  of  standing  upon  the  Norfolk 
platform  with  regard  to  submitting  this  question  to  the  people?  I  said  then,  because 
I  felt  that  the  Norfolk  platform  was  right,  that  I  unquestionably  stood  upon  it. 

Now,  no  man  can  release  me  from  that  pledge.  I  submit  that  if  I  had  said  noth- 
ing of  the  kind,  I  would  stand  in  the  same  position,  because  when  a  party  has  adopted 
a  platform,  if  a  man  keeps  silent  about  it  and  gets  the  benefit  of  it  by  keeping  silent, 
he  cannot  afterwards  get  somebody  else  to  release  him.  I  do  not  know  of  anybody 
that  can  release  me  from  an  engagement  that  I  have  made  whereby  I  get  something, 
after  I  have  gotten  it.  That  is  not  good,  either  in  law  or  morals.  It  will  not  do  for 
you  to  be  released  after  you  have  gotten  what  you  vv^ant. 

We  did  not  hear  anything  of  this  particular  question  when  we  first  came  here; 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGINIA. 


3209 


and  you,  gentlemen,  know  that  we  did  not.  The  question  then  was  between  the  forces 
who  were  discussing  whether  we  should  submit  this  question  to  the  present  electorate 
or  whether  we  should  submit  it  to  the  restricted  electorate. 

You  Y^'ill  remember  that  notable  discussion.  Able  men  took  part  in  it.  The  dis- 
tinguished gentleman  from  Pulaski  (Mr.  Wysor),  and  the  distinguished  gentleman 
from  Appomattox  (Mr.  Flood)  were  among  the  most  notable  and  able  speakers  on  the 
side  of  submission  to  the  entire  electorate.  The  distinguished  gentleman  from  Lynch- 
burg (Mr.  Glass)  made  one  of  the  ablest  speeches  that  has  been  made  in  this  body, 
and,  as  I  understood  him,  he  was  for  submitting  it  to  a  restricted  electorate.  At  that 
time  I  never  heard,  and  I  do  not  believe  anyone  ever  heard  any  discussion  about  pro- 
claiming this  Constitution.  I  will  do  the  gentleman  from  Hanover  (Mr.  Carter)  the 
justice  to  say  that  he  did  argue  the  legal  right  to  proclaim,  but  no  one  spoke  in 
favor  of  doing  so.  I  remember  that  the  distinguished  gentleman  from  Lancaster  re- 
fused to  answer  a  question  asked  him  by  the  gentleman  from  Pulaski,  and  said  that 
he  would  not  tell,  and  that  no  man  knew  how  he  was  going  to  vote.  We  have  found 
out  how  he  wanted  to  vote,  since  we  have  framed  this  Constitution. 

Does  the  character  of  the  instrument  which  we  have  framed  cut  any  figure  upon 
the  question  of  the  moral  obligation  of  this  Convention?  For  my  part  I  would  be 
ashamed  of  Virginia  if  I  thought  it  did.  I  hope  to  God  that  one  hundred  men  will 
never  get  together  in  Virginia  who  think  that  they  can  be  released  from  a  moral  obli- 
gation because  they  find  that  it  may  hurt  them,  or  that  they  may  not  get  through  some 
set  scheme  which  they  think  ver^'  important,  if  they  carry  it  out.  We  have  had  bitter 
discussions  and  rivalries  in  this  Convention.  When  I  say  bitter  discussions  I  do  not 
mean  that  they  have  been  unfriendly,  but  that  they  have  been  heated  and  earnest.  We 
have  differed  widely.  We  have  had  to  make  all  sorts  of  compromises.  Some  things 
have  been  gotten  through  VN^hich  some  of  us  deemed  to  be  fraught  with  danger  to  the 
interests  of  this  State.  This  Convention  of  Democratic  members  has  differed  in  regard 
to  some  of  the  matters  contained  in  the  Constitution.  On  a  large  percentage  of  the 
questions  we  have  been  almost  equally  divided;  and  yet,  on  questions  as  to  which  we 
have  gravelj^  differed,  these  gentlemen  say  we  ought  to  be  willing  to  thrust  it  upon 
the  people  of  Virginia  without  giving  them  any  opportunity  to  judge  of  the  effect  of  it. 
I,  for  one,  apart  from  all  moral  considerations,  have  not  the  courage  to  thrust  upon 
the  people  this  Constitution,  even  if  I  thought  everything  in  it  was  for  their  good.  I 
have  heard  it  said  that  the  people  of  Virginia  are  incapable  of  understanding  the  work 
we  have  done.  I  deny  that  proposition.  The  people  of  Virginia,  as  a  whole,  have  got 
more  sense  than  this  Convention  has.  We  are  a  great  people.  We  have  been  talking 
constitutional  law  ever  since  that  little  battle  at  Lexington,  where  was  fired  the  shot 
that  vvas  heard  around  the  world.  Our  people  know  more  about  constitutional  law 
than  any  other  people  upon  the  face  of  God's  earth.  The  English  people  talk  about 
constitutions,  but  they  really  have  none.  With  them  Parliament  is  supreme.  Our 
people  know  that  their  rights  are  dependent  on  constitutional  law.  It  is  discussed  in 
every  forum.  It  is  discussed  on  every  hustings.  This,  I  submit,  is  a  matter  of  the 
greatest  moment.  It  goes  down  to  the  very  frame-work  of  our  government,  and  apart 
from  pledges  and  apart  from  everj^thing  else,  we  ought  to  have  the  courage  and  the 
manhood  to  trust  our  own  people.  We  ought  to  go  on  the  stump,  with  the  old  Consti- 
tution in  one  hand,  and  the  new  in  the  other,  and  explain  to  our  people  what  we  have 
done  for  them.  It  is  not  hard  to  understand.  There  are  many  members  in  this  Con- 
vention who  have  been  telling  us  that  they  are  not  lawyers — some  of  them  are  preach- 
ers, some  of  them  are  farmers — but  they  seem  to  have  understood  every  question  that 
has  come  up  here.  Some  of  them,  who  are  not  lawyers,  understood  the  legal  ques- 
tions better  than  the  lawyers  did.  I  submit  that  the  people  of  Virginia  can  under- 
stand this  Constitution;  and  if  the  members  of  this  Convention  will  have  the  courage 
and  the  manhood,  and  will  continue  to  serve  their  State  a  while  longer,  we  can  discuss 
this  matter  before  the  people  and  guide  them  in  the  way  they  should  go.  I  differ,  as 
202 — Const.  Deb. 


3210  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

widely  as  the  poles,  from  the  most  of  the  positions  taken  by  the  gentleman  from 
Henry.  I  am  not  a  Republican,  as  he  is.  I  do  not  rejoice  in  the  prossession  of  the  Fifth- 
teenth  Amendment,  and  I  would  not  vote  for  it  if  it  was  in  the  issue  to-day.  But  there 
is  a  good  deal  of  truth,  in  my  opinion,  in  v/hat  he  says.  I  say  that  the  trouble  with 
our  politics  in  this  State  is,  that  instead  of  our  politicians  being  leaders,  and  going 
out,  and  courageously  telling  the  people  the  truth,  they  wait  to  find  out  what  the 
people  say  they  want,  and  then  they  follow  the  people.  If  there  is  trouble  amongst 
our  people,  the  trouble  is  at  the  top  and  not  at  the  bottom.  Down  in  their  hearts  the 
people  of  Virginia  are  sound  as  a  dollar,  and  I  believe  that  if  any  man  has  the  ability, 
the  courage  and  the  nerve  to  tell  the  people  the  truth,  they  will  recognize  it  and  fol- 
low him.  And,  gentlemen,  for  that  reason,  if  for  no  other,  I  would  vote  to  submit  this 
Constitution  to  the  people.  What  are  we  doing?  We  are  not  passing  an  act  of  the 
Legislature.  What  is  a  Constitution?  The  Constitution  is  the  law  which  the  people 
themselves  make,  in  order  to  put  a  limitation  upon  their  own  power.  It  is,  in  a  large 
measure,  a  limitation  on  the  power  of  the  Legislature.  The  Legislature  represents  the 
people,  and  without  a  Constitution  it  would,  like  the  Parliament  of  England,  have 
supreme  power,  so  far  as  the  making  of  laws  are  concerned.  Our  people  have  found  that 
written  Constitutions,  which  should  be  Constitutions  of  the  entire  people  so  far  as  they 
can  be,  are  better  than  leaving  these  matters  to  be  determined  by  custom,  as  they  do 
in  England.  It  was  our  forefathers  who,  practically,  discovered  the  good  of  written 
Constitutions.  There  had  been  some  in  existence  in  the  past,  but  none  had  succeeded. 
In  this  country  we  have  adopted  written  Constitutions,  and  the  whole  theory  upon 
which  they  are  based  is  that  the  people  themselves  make  them. 

I  say  that  Virginia  is  a  Democratic  State.  Upon  her  soil  was  bom  the  great 
leader  and  fou.nder  of  the  Democratic  party.  Virginia  has  always  been  Democratic. 
The  leaders  in  Virginia  have  always  trusted  the  people,  and  the  result  has  shown  that 
they  were  right.  Is  the  Democratic  party,  whose  very  name  implies  that  it  is  the 
party  of  the  people,  going  to  proclaim  to  the  world,  in  this  twentieth  century,  that 
the  government  founded  by  our  fathers,  and  the  principles  on  which  our  government 
was  founded  by  those  fathers,  have  both  been  wrong?  Is  the  Democratic  party  going 
to  proclaim  to  the  world  that  it  is  a  party  of  reaction,  and  that  it  will  trust  not  the 
people  on  the  question  of  whether  they  shall  limit  their  own  powers  or  not? 

There  was  no  general  discussion  of  this  subject  before  we  were  elected.  We  were 
not  elected  here  like  the  Convention  of  1829-'30,  when  a  great  issue  had  been  made, 
and  speeches  had  been  made  on  the  hustings  in  regard  to  it.  This  thing  happened 
almost  in  the  dark.  We  had  an  overwhelming  majority  in  the  Democratic  party  in 
this  State;  but  the  people  did  not  take  much  interest  in  the  election.  The  question 
of  proclaiming  this  Constitution  v/as  never  considered  then  except  by  a  few  men  who 
may  have  told  the  people  they  were  in  favor  of  it.  Are  we  going  to  assume  that  we 
ought  to  do  a  thing  which  we  never  have  been  willing  to  do  but  once  in  the  whole 
history  of  Virginia?  If  the  Democratic  Convention  had  never  met,  and  if  I  had  never 
made  any  personal  pledge,  I,  for  one,  v/ould  say  that  our  duty,  our  fealty  to  the  princi- 
ples of  the  party  to  which  we  belong,  and  to  the  highest  future  interests  of  this  State 
require  that  this  Constitution  should  be  submitted  to  the  people,  because  I  sincerely 
believe,  in  my  heart,  that  if  we  proclaim  this  Constitution  the  people  of  Virginia  are 
going  to  find  out  sooner  or  later,  that  there  are  many  things  in  it  they  did  not  know 
anything  about  and  there  will  be  dissatisfaction  and  discontent.  When  a  man  is 
talking  about  proclamation  he  is  apt  to  talk  about  those  things  which  he  knows  are 
popular  with  the  people,  and  not  about  those  which  are  not.  I  do  not  believe  that 
any  man  has  thoroughly  explained  the  workings  of  this  Constitution.  There  is  going 
to  be  tremendous  dissatisfaction,  there  is  going  to  be  an  organized  attack  upon  the 
Democratic  party.  We  will  be  on  the  defensive  in  every  campaign  for  the  next  ten 
or  fifteen  years,  and  I  think  we  will  have  a  pretty  tough  time  answering  some  of  the 
orators  those  people  have.    I  know  I  would  not  like  to  try  to  answer  them,  and  I 


DEBATES  OF  THE  COKSTITUTIOjSTAL  CONVENTION  OF  VIRGINIA. 


3211 


would  not  try  to  do  it.  I  v/ould  just  say,  "You  will  have  to  go  after  those  other  fellows 
who  voted  that  way;  I  can't  answer  j-ou."  I  would  not  take  the  stump  against  one  of 
those  men.  I  would  hate  to  have  one  of  them  get  after  me  when  I  was  running  for 
some  ofnce.  I  tell  you,  gentlemen,  if  yon  want  to  keep  Democratic  supremacy  in  this 
State  you  had  better  pause.  That  is  a  political  argument,  but  it  is  a  legitimate  one. 
The  gentleman  from  Fairfax  has  depleted  more  eloquently  than  I  can  do  what  the 
Democratic  party  has  done  for  Virginia  since  the  war.  There  may  be  some  men  in 
this  Convention  who  are  getting  tired  of  that  party,  and  who  would  like  to  split  things 
wide  open,  and  go  over  to  the  other  side;  but  I  do  not  think  there  are  many  who  want 
to  do  that.  I  say  that  those  who  think  Democratic  supremacy  in  this  State  is  a  good 
thing^  had  better  pause  before  w^e  put  a  weapon  into  the  hands  of  our  worst  enemies — 
the  people  who  have  tried  to  annihilate  the  civilization  of  this  State,  to  disfranchise 
the  white  people,  and  put  our  slaves  in  possession  of  the  right  to  vote.  And  I  say 
that  if  you  put  the  Vv'-eapon  into  the  hands  of  those  same  people  they  will  use  the 
weapon.  Gentlemen,  the  argument  presented  by  some  of  the  delegates  who  represent 
the  minority  party  in  this  chamber  are  worth  listening  to.  It  will  not  do  to  disregard 
them  because  we  differ  with  them  on  political  questions.  Some  of  those  speeches  will 
be  pretty  good  campaign  literature  hereafter.  I  think  Vv^e  had  better  pause,  on  that 
ground,  if  no  higher  one  can  appeal  to  us. 

Now,  gentlemen,  I  may  have  been  beating  the  air  and  making  myself  hoarse  and 
tired  for  nothing,  but  I  wish  this  Convention,  I  wash  my  people,  my  children,  hereafter 
to  know  how  I  stand  on  this  subject.  I  felt  it  my  duty  to  myself  to  say  something 
about  it^  although  I  really  felt  scarcely  in  condition  to  speak  at  all. 

Thanking  you  for  your  attention,  I  will  resume  m.y  seat.    (Grea,t  applause.) 

On  motion  of  Mr.  James  W.  Gordon  the  Convention  adjourned  until  to-morrow, 
Thursday,  May  29,  1902,  at  10  o'clock  A,.  M. 


THURSDAY,  May  29,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  F.  Dunaway,  D.  D. 

Mr.  Thom:    T\Ir.  President,  I  send  a  resolution  to  the  Clerk's  desk  and  ask  that 
it  be  considered  in  connection  with  the  question  fixed  for  determination  to-day. 
The  President:    The  secretary  will  read  the  resolution. 

Resolved,  That  when  the  Constitution  shall  have  been  completely  revised  and 
amended  by  this  Convention,  it  shall,  in  its  revised  and  amended  form,  be  certified, 
under  the  hand  of  the  President  of  this  Convention,  attested  by  the  Secretary,  to  the 
General  Assembly,  in  order  that  the  General  Assembly  may  enact  such  measures  as  it 
may  deem  proper  for  submitting  the  said  revised  and  amended  Constitution  to  the  peo- 
ple of  this  Commonwealth  for  ratification  or  rejection. 

The  President:  The  unfinished  business  before  the  Convention  is  the  further  con- 
sideration of  the  resolution  offered  by  the  gentleman  from  Campbell  (Mr.  Daniel)  as 
to  the  disposition  of  the  Constitution  when  completed.  The  gentleman  from  Pulaski 
(Mr.  Wysor)  has  the  floor. 

Mr.  Wysor:  Mr.  President  and  gentlemen  of  the  Convention,  I  desire  to  say  a 
few  words  on  the  subject  under  discussion  before  this  body.  I  fear  that  a  sore  throat 
will  prevent  me  from  doing  justice  to  myself,  to  my  audience  and  to  the  cause.  There 
has  been  an  intimation  that  the  discussion  of  the  question  under  consideration  was 
perhaps  prolonged  cn  account  of  my  absence  from  the  Convention.  I  did  not  ask 
that  this  should  be  done,  but  if  my  absence  had  any  weight  with  the  Convention  in 
prolong'ng  the  discussion,  I  desire  here  and  now^  to  express  my  deep  appreciation  of 


3212 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 


the  courtesy  extended  to  me.  I  do  not  wish  to  detain  the  Convention  very  long.  This 
is  not  a  time  for  speech-making. 

The  time  for  final  action  has  arrived. 

The  subject  has  been  worn  thread-bare.  It  begins  to  sound  like  a  thrice-told  tale 
in  the  dull  ear  of  a  drowsy  man.  I  do  not  like  to  speak  to  people  who  are  impatient, 
and  who  are  unwilling  to  listen.  I  do  not  like  to  impose  upon  persons  by  speech  or 
otherwise.  I  do  not  know  that  speaking  can  do  much  good.  I  would  just  as  soon  sing 
Psalms  to  a  dead  horse  as  to  try  to  convince  a  man  who  has  pronounced  himself  in 
favor  of  proclamation  of  the  error  of  his  way.  The  singing  of  the  Psalms  would  be  all 
right,  but  the  dead  horse  is  all  wrong.  The  argument  in  favor  of  submission  is  all 
right,  but  the  gentlemen  who  are  for  proclamation  are  all  wrong. 

There  are  none  so  blind  as  those  who  will  not  see,  and  none  so  deaf  as  those  who 
will  not  hear. 

But  we  are  told  that  there  are  some  doubting  Thomases  here.  Peradventure 
we  might  have  some  effect  upon  them  by  argument.  I  had  hoped  that  the  gentleman 
from  Richmond  and  Lancaster  was  a  doubting  Thomas,  and  that  I  could  catch  him  by 
the  hands  and  put  his  whole  fist  in  the  great  rents  in  the  side  of  the  rights  of  the 
people  inflicted  by  the  members  of  the  Convention  who  are  for  proclamation.  Now,  I 
have  a  great  deal  of  respect  for  the  gentlemen  who  favor  proclamation.  I  believe 
they  are  sincere,  that  they  have  good  motives.  I  want  to  say  that  by  their  arguments 
they  have  created  a  great  big  rational  doubt  in  my  mind.  I  will  tell  you  what  that 
rational  doubt  is  in  a  few  moments,  and  if  you  think  that  I  have  not  it,  I  am  perfectly 
willing  that  the  X-ray  may  be  put  upon  my  brain,  and  if  it  can  discover  a  rational 
doubt,  that  it  be  discovered  and  exhibited  to  you.  I  once  heard  a  story  of  two  judges, 
a  lower  and  upper  judge.  The  lower  judge  decided  that  you  couldn't  commit  a  trespass 
upon  a  dog;  that  a  dog  was  property.  The  upper  judge  reversed  him,  holding  that  as 
the  law  then  stood,  a  dog  was  not  property.  When  the  lower  judge  came  to  comment 
upon  that  decision  he  spoke  of  the  circuit  judge  in  this  way:  "I  have  very  great  res- 
pect for  him;  he  is  a  fine  gentleman;  he  is  an  able  lawyer;  he  is  a  profound  jurist; 
but,  law  me,  he  hasn't  got  any  dog  sense." 

Now,  I  do  not  mean  to  say  that  you  have  dog  sense,  or  that  I  have  any  rational 
doubt  as  to  whether  you  have  dog  sense.  I  mean  to  say  that  I  have  the  utmost 
respect  for  you  and  for  your  opinions;  that  you  are  able;  that  you  are  patriotic  men, 
that  some  of  you  are  able  lawyers  and  profound  judges ;  but  I  v^ish  to  say  that  I  have 
a  rational  doubt,  and  cannot  help  it,  and  am  frank  to  acknowledge  it  as  to  whether 
you  have  any  constitutional  sense. 

The  question  before  this  body  is  whether  we  shall  ordain  or  propose  the  Consti- 
tution. I  offered  a  resolution  last  summer  to  put  in  the  preamble  the  word  "propose" 
in  lieu  of  the  word  "ordain,"  as  reported  by  the  committee.  That  brought  up  the 
whole  question  as  to  whether  we  should  ordain  or  propose  the  Constitution,  and  there 
was  no  necessity  for  any  other  resolution.  I  noticed  in  the  paper  that  the  gentleman 
from  Culpeper  (Mr.  Barbour)  said  that  we  should  have  a  resolution,  and  that  then  the 
preamble  could  conform  to  the  schedule.  That  would  be  a  proper  way  to  dispose  of  it, 
but  if  we  had  disposed  of  the  resolution  which  I  offered  v/e  could  have  had  the  sched- 
ule to  conform  to  the  preamble,  because  there  v/ould  have  been  a  vote  then  as  to 
whether  we  should  ordain  or  propose  the  Constitution.  That  is  the  very  quesMoa  we 
are  discussing  now:  ."Shall  we  ordain  or  shall  we  propose?"  If  that  question  had 
been  decided  last  summer  when  it  ought  to  have  been  decided,  v/e  would  not  be  here 
discussing  it  now,  because  this  Convention  would  have  decided  in  favor  of  submitting 
the  Constitution  to  the  people.  I  said  last  summer  that  these  gentlemen  who  are 
going  contrary  to  w^hat  we  think  are  the  fundamental  rights  of  the  people  would  grow 
in  strength.  We  have  lost  man  after  man;  we  have  lost  the  gentleman  from  Scott;  we 
have  lost  the  gentleman  from  Lee;  we  have  lost  the  gentleman  from  Prince  William, 
and  numbers  of  others,  every  one  of  whom  was  for  submission  of  the  Constitution  to 


DEBATES  OF  THE  COI^STITUTIONAL  CONVENTION  OF  VIRGINIA.  3213 

the  people  for  ratification  or  rejection  last  summer.  Why,  the  gentleman  from  Scott 
used  to  become  bellicose  on  the  subject,  not  on  the  floor  of  the  Convention,  but  off  of  it. 

He  would  declare  that  we  would  submit  it  or  have  war.  Now,  he  is  back  here, 
any  says  his  people  have  instructed  him  for  proclamation.  What  is  the  argument  of 
the  gentleman  who  want  to  proclaim  the  Constitution?  I  want  to  go  over  their  argu- 
ments a  little  while.  Here  is  their  first,  and  perhaps  their  best  argument:  "We  want 
to  proclaim  the  Constitution,  and  we  will  be  darned  if  we  don't  do  it."  Their  next 
argument  is:  "If  we  don't  proclaim  the  Constitution,  and  submit  it  to  the  people,  we 
are  afraid  that  it  will  be  beaten."  In  other  words,  we  frame  a  Constitution  and  we 
are  afraid  to  submit  it  to  anybody  but  ourselves.  They  stand  here  m  a  Republican 
form  of  government,  in  which  the  people  are  the  rulers,  and  from  which  they  derive 
all  their  powers  and  say,  "If  we  submit  this  Constitution  to  the  people  who  sent  us 
jfiere,  of  v/hom  we  are  the  agents,  it  will  be  beaten."  And  then  they  occupy  the  posi- 
tion of  standing  here  as  usurpers  and  crowding  down  the  throats  of  a  brave  and  free 
people  an  instrument  which,  if  they  were  allowed  a  voice  upon,  ihey  would  reject. 
That  is  their  argument.  I  do  not  say  that  the  people  would  reject  the  Constitution. 
They  would  carry  it  by  an  overwhelming  majority,  but  that  is  the  argument  made 
by  the  men  who  are  in  favor  of  proclamation — that  they  are  afraid  the  people  would 
beat  it. 

Their  next  argument — and  I  want  to  show  you  their  consistency — their  next  argu- 
ment is  that  nine  people  out  of  ten  are  for  it.  W^hy,  the  papers,  which  are  advocating 
proclamation,  say  that.  Talk  to  one  of  these  proclamationists,  and  he  will  tell  you 
that  everybody  he  meets  is  for  it,  that  three-fourths  of  the  people  at  his  home  are 
for  it.  They  say  they  can  vvalk  down  the  streets  of  Richmond  and  shake  man  after 
man  by  the  hand  by  the  thousands  v/ho  are  in  favor  of  proclamation.  All  the  people 
are  for  it.  Nine  out  of  ten  are  for  it.  And  yet  they  are  unwilling  to  submit  it  to  the 
people  when  they  say  the  people  are  for  it. 

The  next  argument  is:  "We  knew  v/e  did  not  have  any  power  to  proclaim  it,  but 
we  went  home  during  the  recess  and  got  the  power."  And  some  of  these  proclama- 
tionists are  parading  around  as  if  they  were  the  only  men  who  had  any  backbone. 

They  say:  "You  submissionists  want  it  proclaimed  yourselves,  but  you  are 
afraid  to  say  so.  You  want  it  proclaimed,  but  you  want  somebody  else  to  do  the  job." 
Why,  they  claim  to  have  all  the  backbone  in  the  country.  Sometimes  a  man  has  too 
much  backbone.  I  would  suggest  to  them  that  they  take  some  of  the  starch  out  of 
their  spinal  columns.  But  let  us  see  about  this  question  of  backbone.  Why  didn't  they 
have  the  backbone  before  the  recess  to  say  that  they  wanted  to  proclaim  the  Constitu- 
tion? Who  ever  heard  one  of  them  say  it?  During  the  discussion  last  summer  what 
one  of  them  dared  to  say  it?  There  is  one  man,  I  believe,  I  did  hear  say  he  was  for 
proclamation  when  the  Convention  first  convened.  It  was  Judge  Green,  of  Danville, 
who  has  always  been  a  proclamationist,  and  his  argument  for  it  was  that  he  had  been 
a  good  man  in  his  youth  and  a  conservative,  peaceable,  upright  man  ail  his  life,  and 
he  Yv^as  grov^ing  old,  and  wanted  to  do  something  wild  and  foolish  and  reckless  before 
he  died.    (Laughter  and  applause.) 

I  will  show  you  directly  about  their  backbone,  and  that  they  v\^ould  really  make 
good  contortionists.  There  T\^ere  a  great  many  of  them  for  the  abridged  electorate 
last  summer,  and  some  for  the  unabridged  electorate.  Now  they  are  for  proclamation. 
They  say  they  have  gone  home  and  got  the  power.  They  have  got  the  power  from 
mass-meetings.  What  an  uncertain  source  of  power  is  a  mass-meeting.  Why,  they 
had  the  biggest  mass-meeting  in  Richmond  here  last  night  that  they  ever  had  in  this 
city.  They  had  the  father  of  the  Convention  there,  and  he  made  a  speech.  The  meet- 
ing was  duly  advertised  by  The  Richmond  Times.  They  had  thirty-six  men  there,  and 
sixteen  of  them  were  for  submission  and  twenty  for  proclamation.  (Laughter.)  The 
argument  of  some  of  the  proclamationists  is  that  the  politicians  are  for  submission 
and  the  statesmen  are  for  proclamation.    Well,  I  stand  here  to  say  that  the  politicians 


3214 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


have  some  rights  which  ought  to  be  respected.  Let  us  see  how  fickle  is  this  source  of 
power  that  the  proclamationists  make  profert  of  here.  Many  of  you  were  for  an 
abridged  electorate  last  summer.  None  of  you  said  you  were  in  favor  of  proclamation. 
What  has  become  of  the  abridged  electorate?  Where  is  the  abridged  electorate?  Who 
has  got  that  thing?  Where  is  it?  Mr.  Glass  made  a  speech  here  last  summer,  and  he 
said  that  the  Norfolk  Convention  declared  in  favor  of  the  abridged  electorate.  Every- 
body admitted  that  the  Norfolk  Convention — there  is  a  big  mass-meeting  for  you — 
made  a  pledge.  I  am  not  talking  now  particularly  about  the  party  pledge;  I  am  talking 
about  what  a  fickle  source  of  poY^-'er  you  have.  The  Norfolk  Convention  declared  in 
favor  of  submission,  did  it  not?  I  contend  that  it  declared  in  favor  of  submission  to 
the  present  electorate.  The  gentleman  from  Campbell  says  so,  and  he  v/as  down  there. 
There  is  a  policeman  about  this  building  by  the  name  of  Jenkins,  and  Jenkins  was  there, 
as  a  member  of  the  Convention,  and  he  says  he  knows  positively  that  they  did  declare 
for  submitting  it  to  the  whole  of  the  present  electorate,  and  I  believe  Jenkins  knows 
what  he  is  talking  about.  (Laughter.) 

But  to  come  back  to  your  source  of  power.    You  say  you  had  mass-meetings  of  the 
people.    You  had  a  big  mass-meeting  at  Norfolk  in  1900  in  the  shape  of  a  Democratic 
Convention,  and  it  declared  for  submission.    The  same  party  had  another  convention 
in  1901,  after  Mr.  Glass  had  made  a  speech  here  in  favor  of  submission  to  the  abridged 
electorate.    I  admired  the  speech,  and  I  admired  Mr.  Glass  for  his  ability,  and  espe- 
cially for  his  purity  of  purpose.    He  made  a  fine  speech,  and  that  speech  was  scattered 
all  over  the  State,  and  the  papers,  tl\e  Dispatch,  and  other  papers,  declared  for  an 
abridged  electorate.    Mr.  Glass  went  to  the  Norfolk  Convention  of  1901  to  get  some 
inspiration,  and  called  the  attention  of  the  Convention  to  his  construction  of  the  pledge 
<of  the  Convention  of  1900.    He  said  that  when  he  called  attention  to  the  matter 
.of  the  abridged  electorate  there  went  up  a  great  shout  of  applause  and  approval,  and 
that  this  great  noise  rolled  away  out  on  the  bosom  of  the  ocean.    It  is  said  that 
Juno,  queen  of  the  sea,  was  near  the  shore,  and  the  noise  like  to  scared  her  to 
death.    (Laughter.)    She  left  American  shores,  and  the  old  woman  has  not  been  on 
this  side  of  the  Atlantic  ocean  since.    (Laughter.)    Did  these  conventions  represent 
■the  will  of  the  people?    They  had  some  organization.    They  were  duly  organized.  The 
first  one  made  a  declaration  which  reguired  the  Constitution  to  be  submitted  to  the 
people.    The  second  did  not  make  any  declaration  at  all,  but  it  made  a  great  noise, 
which  was  claimed  to  be  a  noise  in  favor  of  submitting  to  an  abridged  electorate. 
Now,  then,  you  take  a  recess,  and  gentlemen  go  back  to  their  constituencies,  and 
they  say  that  these  same  people  v/ho  had  declared  for  an  abridged  electorate  in  two 
conventions,  tell  them  in  little  mass-meetings:  ''We  don't  want  anything  of  the  sort; 
we  don't  want  that;  we  want  you  to  proclaim  it.    We  didn't  know  v/hat  we  were  talk- 
ing about  when  we  voted  the  first  time;  we  didn't  know  what  we  v/ere  doing  when 
we  made  that  great  noise  in  favor  of  the  declaration  of  the  gentleman  from  Lynch- 
burg."   That  is  their  source  of  power — a  people  that  vibrate  (I  don't  say  this,  remem- 
ber; this  is  what  you  say)  a  people  that  vibrate  like  a  pendulum  of  a  clock,  here  this 
moment  and  yonder  the  next,  and  if  you  catch  them  you  have  got  to  catch  them  while 
they  are  going  or  coming.  (Laughter.) 

Novv^,  I  reckon  that  the  people  have  abandoned  that  matter  of  the  abridged  elec- 
torate altogether.  It  is  gone.  It  is  dead.  Why,  it  has  been  dead  so  long  that  its 
carcass  has  ceased  to  emit  any  odor.  (Laughter.) 

The  Chinese  have  a  custom  that  it  vvould  be  well  to  follow  in  the  case  of  the 
abridged  electorate.  When  one  of  their  citizens  dies  in  a  foreign  country  they  put  his 
body  in  the  ground,  and  it  remains  there  for  three  years.  They  put  money  in  his 
grave  with  him  to  pay  his  ferryage  across  the  river  into  the  other  country.  After  he 
has  been  dead  for  three  years  they  come  and  gather  around  the  grave,  and  one  of  them 
cries  out  in  a  loud  voice:  "Get  up  and  go  home."  And  then  they  open  the  grave  and 
take  up  his  bones  and  perfume  them,  and  send  them  back  to  be  interred  in  the 
Flowery  Kingdom  away  across  the  seas. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIKGIXIA. 


3215 


I  suggest  that  a  committee  be  appointed,  of  which  Mr.  Glass  shall  be  chairman, 
and  I  would  like  to  have  the  President  of  the  Convention  on  the  committee,  because 
he  has  been  for  an  abridged  electorate,  and  I  would  like  to  get  these  tvro  prominent 
e:entlemen  to  gather  around  them,  or  all  the  remaining  men  who  were  for  an  abridged 
electorate,  and  take  them  to  the  grave  of  this  thing,  and  let  Mr.  Glass  proclaim  in  a 
loud  voice,  "  Get  up,  go  home."  Then  they  should  take  up  its  bones  and  perfume  them 
and  put  them  on  a  catafalque,  and  take  them  in  solemn  procession  to  the  city  of 
I.jmchburg,  and  bury  them  in  the  home  of  their  birth.    (Laughter  and  applause.) 

Gentlemen,  I  cannot  pass  over  that  Chinese  custom  without  referring  to  a  beauti- 
ful thought  contained  in  it.  It  shoves  a  great  love  of  country.  A  Chinaman  wants  his 
bones  to  rest  beneath  his  own  soil,  and  we  ought  to  cultivate  such  a  love  for  our  own 
dear  State.  As  for  me,  let  me  stand  on  Virginia  earth  when  I  see  the  sun  for  the 
last  time;  let  me  spend  my  last  night  under  the  canopy  of  her  heavens;  let  me  yield 
my  spirit  in  the  shadow  of  some  great  mountain;  and  let  my  bones  beneath  her  soil 
repose. 

The  next  argument  of  the  proclamationists  is  one  that  they  get  from  the  gentle- 
man from  Stafford  (Mr.  Moncure).  It  is  one  of  the  most  powerful  arguments  that  has 
been  introduced  on  that  side  of  the  case.  The  gentleman  from  Stafford  is  an  old 
man,  but  he  is  a  good  man,  and  I  regard  him  as  an  able,  worthy  member  of  the  Con- 
vention. I  frequentlj^  have  talks  with  him,  and  I  enjoy  his  conversation.  Here  is  his 
argument.  He  says:  "We  want  to  clap  the  Constitution  over  the  people  just  like  you 
clap  a  trap  over  a  mouse.  Don't  give  them  any  show.  Don't  give  them  any  voice. 
Trap   'em.  (Laughter.) 

Why,  these  proclamationists  remind  me  of  the  turkey  gobbler  and  the  grasshop- 
per.   You  have  heard  the  old  song,  or  story,  whatever  you  may  call  it: 

A  grasshopper  was  sitting  on  a  sweet  potato  vine, 
A  grasshopper  was  sitting  on  a  sweet  potato  vine. 
Up  came  a  turkey  gobbler  slipping  up  behind, 
Up  came  a  turkey  gobbler  slipping  up  behind. 
And  bit  him  on  the  snooze. 

—  (Laughter.) 

These  proclamationists  think  that  people  are  like  grasshoppers  sitting  on  a  sweet 
potato  vine,  and  that  up  comes  the  proclamationist,  slipping  up  behind,  and  bites  the 
people  on  the  snooze.  (Laughter.) 

Their  next  argument  is  that  it  will  not  do  to  submit  it  because  there  are  146,000 
negroes  in  the  State.  That  was  the  burden  of  the  argument  of  the  gentleman  from 
Richmond  and  Lancaster  (Mr.  Dunaway).  Oh,  what  a  brave  man  he  is!  He  doesn't 
want  to  submit  because  there  are  146,000  negroes  in  the  State.  Why  he  reminds  me 
of  a  maiden  mentioned  in  one  of  Shakespeare's  plays,  which  occurs  to  me  at  this 
moment: 

She  sa.w  the  lion's  shadow,  e'er  the  lion  himself, 
And  ran  dismayed  awa^^ 

One  hundred  and  forty-six  thousand  negroes  and  850,000  whites,  and  yet  you  say 
you  are  afraid  to  submit  your  Constitution  to  them.  Three  hundred  and  fift^''  thousand 
whites  afraid  of  146,000  negroes,  when  these  350,000  whites  have  all  the  political 
machinery  in  their  hands;  when  they  have  all  the  intelligence;  when  they  have  all 
the  power;  when  these  146,000  people  are  a  poor,  ignorant,  despised  race  of  people. 
Why,  what  can  146,000  negroes  do  with  350,000  whites?  Ah,  the  gentlemen  from  Lan- 
caster has  something  else  in  that  argument.  He  intimates  that  there  are  about  113,000 
bad  white  people  in  the  State.  It  would  take  about  that  number  to  beat  the  Constitu- 
tion. We  frequently  have  it  intimated  here  that  there  are  113,000  bad  white  people  in 
the  State  who  are  willing  to  join  with  the  146,000  negroes  to  defeat  a  good  Constitu- 
tion, to  thwart  the  will  of  their  own  people  and  their  own  race.  I  do  not  believe  it, 
gentlemen.    I  do  not  believe  it. 


3216  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

After  the  people  have  expressed  themselves  decidedly,  unmistakahly,  positively,  at 
the  polls  for  suhmission,  you  go  home,  you  call  up  a  few  people  around  you,  and  you 
reach  out  and  try  to  gather  up  public  sentiment  to  support  you.  You  get  this  senti- 
ment in  no  definite  way;  you  get  it  in  no  way  that  binds  you.  The  people  have  ex- 
pressed their  will  to  us  at  the  polls.  They  have  done  it  in  no  unmistakable  way,  by 
their  ballots.  It  does  not  stand  you  in  hand  to  run  home  and  gather  up  a  little  crowd 
to  tell  you  to  vote  for  proclamation,  and  then  come  back  and  say  that  the  people  for 
submission  have  no  backbone.  I  never  want  to  have  any  backbone  to  take  from  the 
people  the  right  to  pass  upon  their  fundamental  law.  I  never  want  to  have  backbone 
to  usurp  power  when  it  is  not  given  to  me,  and  when  the  people  have  explicitly  told 
me  that  I  did  not  have  it  and  must  not  exercise  it. 

The  argument  that  the  predominancy  of  the  Caucasian  is  in  peril  would  have 
something  in  it  if  true.  If  I  believed  it,  and  thought  it  was  necessary  to  prevent  it,  I 
would  go  with  you.  The  man  is  a  poor  man  who  forgets  himself,  or  his  family,  or  his 
country,  or  his  race.  If  I  thought  that  my  race  was  jeopardized  by  the  black  cloud 
of  an  alien  race,  it  might  be  that  I  would  defy  all  constitutions  and  all  laws  to  prevent 
it.  (Applause.) 

But  I  do  not  think  that  we  are  faced  with  any  such  emergency.  The  Constitution 
is  a  good  instrument,  the  people  are  ready  to  receive  it,  and  it  is  in  the  hands  of  the 
Democratic  party,  which  has  alv/ays  carried  the  State.  I  contend  that  the  gentlemen 
for  proclamation  deal  in  sound  and  fury.  Why,  they  paw  the  dust  and  bellow  like 
the  bull  of  Bashan.  If  I  am  the  only  man  to  do  so,  I  will  stand  on  the  bridge  to 
prevent  a  misguided  crowd  from  entering  the  citadel  of  the  people's  liberty.  They 
may  crov/d  me  off,  like  a  bull  did  crowd  a  man  off  a  bridge  once.  The  man  was  stand- 
ing on  the  bridge,  and  the  bull  came  along  and  hooked  him  off  into  the  stream  below. 
When  this  man  rose  up  the  third  time,  he  looked  up  and  he  saw  the  bull  making  a  big 
basso  prof  undo  tune  v/ith  his  mouth  and  looking  down  at  him,  and  he  just  said:  "None 
of  your  darned  apologies  about  it,  you  did  it  on  purpose."  (Laughter.)  If  the  procla- 
mation bull  pushes  me  off  the  bridge  into  the  stream,  then  just  before  I  go  under  the 
last  time,  if  I  look  up  at  the  animal  and  see  his  horns  and  hear  his  deep  voice,  I  halloa 
back,  "I  don't  want  any  of  your  apologies,  you  did  it  on  purpose."  (Laughter.)  They 
represent  themselves  as  an  army  with  banners.  Well,  some  people  here  are  not  afraid 
of  banners.  This  great  army  is  led  by  two  preachers,  the  gentlemen  from  Prince 
Edward  (Dr.  Mcllwaine)  and  the  gentleman  from  Richm^ond  and  Lancaster  (Dr.  Duna- 
way).  They  have  been  reading  the  Bible,  as  to  how  the  city  of  Jericho  was  taken,  and 
they  have  got  this  great  crowd  following  them,  all  of  them  blowing  rams'  horns.  I  do 
not  want  to  say  anything  that  might  hurt  the  feelings  of  our  preachers,  because  I  am 
fond  of  them.  They  are  upright,  good  men.  In  their  walk  and  daily  conversation  they 
frequently  remind  me  of  some  high  strain  of  music,  every  rippling  wavelet  of  which 
suggests  something  higher  and  nobler  and  brighter,  but  I  want  to  say,  with  all  respect 
to  these  leaders,  that  I  think  they  know  more  about  theology  than  they  do  about  con- 
stitutional law. 

They  have  got  these  rams'  horns  and  they  are  going  around  the  citadel  of  the  peo- 
ple like  the  Israelites  did  around  the  city  of  Jericho.  Honorable  and  distinguished  men 
who  were  for  submission  are  now  blowing  great  big  ram's  horns.  The  Richmond  Dis- 
patch was  for  submission  for  a  long  time,  and  it  saw  this  terrible  army,  with  its  ram's 
horns,  and  it  ran  out  and  got  it  a  great  big  ram's  horn,  and  it  is  blowing  the  biggest 
ram's  horn  of  the  whole  crowd.  The  Richmond  Dispatch  is  a  new  acquisition.  They 
sometimes  stop  and  listen  at  it,  and  make  it  play  a  solo.  You  can  hear  it  now.  (Laugh- 
ter and  applause.) 

They  are  all  following  the  army  with  rams'  horns.  Gentlemen,  there  is  one  thing 
that  is  giving  me  a  great  deal  of  grief.  There  are  two  gentlemen  in  the  Convention 
with  whom  I  associate  a  great  deal.  We  eat  together  at  the  same  table.  Those  gentle- 
men are  Dr.  Barnes  and  Dr.  Lav/son*.    I  am  very  fond  of  them.    I  pray  for  them  every 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3217 

day.  (Laughter.)  Every  time  I  go  into  my  closet  to  say  my  secret  prayers,  I  say, 
"Dear  Jehovah,  please  make  Dr.  Barnes  and  Dr.  Lawson  throw  those  old  rams'  horns 
away."  (Laughter.) 

The  proclamationists  have  no  argument  whatever  for  their  position.  None.  But  want- 
ing the  Constitution  proclaimed,  they  deal  in  every  manner  of  flimsy  sophistry  to  sus- 
tain their  position.  I  lay  down  this  as  a  fundamental  principle,  that  this  is  a  people's 
government,  that  in  this  government  the  people  rule.  I  say  that  the  people  have  no 
dearer  right  than  the  right  to  vote  on  their  fundamental  law,  and  I  lay  this  down  as  a 
sound  legal  proposition  against  which  you  can  array  hut  little  authority.  That  a  Con- 
vention assembled  to  frame  a  Constitution  in  peaceful  times,  or  to  amend  it,  has  limited 
powers  unless  the  people  expressly  give  them  plenary  powers.  So  that  if  there  was 
not  anything  in  the  Constitution,  and  not  a  thing  in  the  act,  in  regard  to  this  Convention, 
and  the  people  had  simply  voted  in  the  affirmative  upon  the  question,  "Shall  v/e  have  a 
Convention?"  and  that  had  been  all,  and  the  Legislature  had  provided  the  method  by 
which  the  Convention  was  to  assemble,  you  could  do  nothing  but  propose  the  Constitu- 
tion to  the  people.  Why?  Because  the  people,  if  you  have  a  right  to  proclaim  it,  must 
expressly  give  you  that  right.  They  cannot  do  it  by  implication.  It  is  parting  with 
their  sovereignty.  They  have  a  perfect  right  to  give  you  their  sovereignty,  but  they 
must  do  it  unambiguously;  they  must  do  it  unmistakably;  they  must  do  it  expressly. 
Everything  is  construed  in  favor  of  the  liberties  of  the  people,  so  that  if  you  just  had  a 
Convention  assembled  under  the  simple  call :  "Shall  there  be  a  Convention,"  you  would 
have  limited  powers,  and  it  would  be  your  duty  simply  to  propose  the  Constitution.  If 
the  people  want  to  give  you  power  to  proclaim  it,  they  must  do  so  expressly. 

Now,  I  ask  this  question:  "If  the  people  wanted  to  limit  your  power,  could  not 
they  do  it?"  Is  there  anybody  here  who  will  deny  that,  any  lawyer,  any  citizen?  If 
the  people  wanted  to  limit  your  power,  could  not  they  do  it?  The  powier  belongs 
to  them.  You  did  not  have  any  until  they  gave  you  that  you  have  got.  When  they 
part  with  their  pov/er,  they  can  part  with  it  all,  or  with  only  a  part  of  it.  It  is  ridicu- 
lous to  contend  that  the  people  cannot  limit  your  power.  No  man  will  contend  it. 
They  say  that  the  people  did  not  give  them  express  power  to  proclaim.  Now,  let 
us  look  at  the  question  in  the  Constitution,  which  was  submitted  to  them:  "Shall 
there  be  a  convention  to  revise  and  amend  the  Constitution?  "  That  is  the  question 
that  was  submitted  to  the  people.  It  was  submitted  in  1900.  What  is  the  argument? 
That  that  means  that  v/e  must  revise  the  Constitution,  that  we  must  amend  it,  and 
that  we  must  proclaim  it. 

Nov/,  suppose  that  was  the  meaning  of  that  provision  in  the  Constitution?  Sup- 
pose it  was.  I  say,  if 'that  is  a  valid  question  in  the  Constitution,  that  is  the  only 
method  by  which  you  can  amend  the  instrument.  This  instrument  provides  for  its 
own  amendment.  Suppose,  then,  that  the  question  meant  proclaim;  as  these  gentle- 
men say,  it  would  be  a  nullity.  A  convention  cannot  tie  up  the  hands  of  succeeding 
generations.  The  people  then  would  have  parted  with  their  power  in  making  funda- 
mental law  altogether.  There  could  be  no  convention  except  a  convention  to  pro- 
claim, and  the  people  could  never  select  a  convention  with  limited  powers,  with 
power^s  only  of  submission.  Is  not  that  true?  So  that  if  what  they  say  be  true,  it 
would  not  be  a  valid  provision  into  the  Constitution.  Suppose  it  meant  this:  That 
you  can  proclaim  or  you  can  submit.  It  would  still  be  invalid.  Why?  Because  it 
would  prevent  the  people  from  limiting  the  powers  of  the  Convention.  If  that  ques- 
tion meant  that  you  can  do  either,  and  it  is  the  only  question  that  you  put  to  the 
people  under  the  Constitution,  it  would  be  invalid.  Why?  Because  the  Convention 
would  have  the  power  of  proclaiming,  and  the  people  have  no  right  to  prevent  it,  and 
never  could  hold  a  constitutional  convention,  which  would  not  have  the  right  to  pro- 
claim or  submit.  We  have  no  right  to  put  such  a  provision  as  that  in  a  Constitution. 
It  would  prevent  the  people  from  requiring  submission.  Judge  Harrison  and  others 
have  argued  that  that  was  the  meaning  of  it,  and  that  if  it  were  that,  it  was  null, 
and  that  you  were  governed  by  the  Legislature.    I  do  not  agree  with  Judge  Harrison 


3318  DEBATES  OF  THE  COInTSTITUTIONAL  CONVENTION  OF  VIRGINIA, 

that  that  question  gives  the  power  to  proclaim.  The  question  means  that  they  must 
propose  the  Constitution  to  the  people,  and  it  means  nothing  else.  When  you  go  to 
construe  the  instrument,  you  must  construe  the  whole  instrument.  You  will  con- 
strue it  under  the  surrounding  facts  and  circumstances.  What  is  the  language  in  the 
Constitution?  "Shall  there  he  a  convention  to  revise  and  amend  the  Constitution?" 
Who  put  it  in  the  Constitution?  The  Underwood  Convention.  What  did  that  Con- 
vention do.  It  submitted  that  Constitution  to  the  people.  Would  a  convention  put 
an  invalid  thing  in  a  Constitution?  It  might  do  it,  but  would  it  do  ;it  intentionally? 
You  call  it  a  black  and  tan  Convention.  That  makes  no  difference.  It  has  all  the 
presumption  in  favor  of  its  action,  that  any  convention  has;  this  one  is  not  excepted. 
How  do  you  frame  amendments  to  it,  when  you  do  not  have  a  convention?  Every 
single  amendment  to  it  is  voted  upon  by  the  people.  So  that  there  was  a  Convention 
which  was  for  submitting  its  own  Constitution,  putting  a  clause  in  there  which  would 
require  all  future  generations  to  proclaim  constitutions,  if  the  view  of  opposing  gen- 
tlemen are  correct. 

Now,  let  us  look  at  it  a  little  further.  It  has  been  construed.  The  great  Conven- 
tion of  1829-'30,  in  which  Chief- Justice  Marshall  sat,  held  that  this  very  language, 
"revise  and  amend,"  meant  to  propose.  That  was  not  a  black  and  tan  Convention. 
That  Convention  had  some  of  the  greatest  statesmen  in  it  that  the  world  has  ever 
produced,  and  that  is  the  construction  put  upon  that  language.  When  the  Conven- 
tion of  1850  met,  the  statute  under  which  it  assembled  used  the  same  language,  "revise 
and  amend,"  and  the  great  Convention  of  1856  held  that  this  language  meant  submit. 
The  Underwood  Convention  had  the  construction  of  this  language  by  Chief  Justice 
Marshall — it  had  the  construction  of  the  language  by  the  great  fathers  of  the  Re- 
public to  the  effect  that  this  language  meant  propose,  and  it  put  this  language  in  the 
Constitution.  What  does  it  mean?  Does  it  mean  to  proclaim?  We  have  had  deci- 
sions that  it  has  no  such  meaning.  In  the  Kentucky  case  referred  to  by  the  gentle- 
man from  Campbell  (Mr.  Daniel)  it  is  held  in  unmistakable  terms  that  that  language 
means  to  propose.  We  have  a  Pennylvania  case,  which  holds  that  this  language  means 
to  propose.  We  have  the  Legislature  of  Virginia,  representing  the  Democratic  party, 
representing  all  the  people  of  the  State,  holding  that  this  language  meant  propose, 
and  it  passed  an  act  saying  that  the  new  Constitution  should  be  submitted  to  the 
qualified  voters  for  their  ratification  or  rejection. 

The  great  fathers  so  construed  it.  The  Underwood  Constitution  so  construed  it. 
The  Legislature  so  construed  it.  The  poets  have  so  construed  it.  Is  that  all?  No,  the 
people  themselves,  the  Democratic  party,  in  convention  assembled,  said  that  it  meant 
submit.  Why  would  the  Democratic  party  say,  "We  want  the"  Constitutional  Conven- 
tion to  submit  its  work  to  the  people,"  if  it  thought  the  language  of  the  Constitution 
meant  that  you  were  bound  to  proclaim  it.  So  then,  we  have  the  Democratic  party 
saying  that  this  clause  of  the  Constitution  meant  to  submit.  We  have  the  language 
so  construed  by  the  fathers  and  by  courts,  and  yet  gentlemen  try  to  support  their 
position  by  every  manner  of  flimsy  sophistry,  that  this  language  means  to  proclaim, 
that  it  gives  the  right  to  proclaim. 

If  we  were  to  admit  the  construction  of  the  gentlemen  for  proclamation,  they 
v/ould  have  to  submit,  because  if  it  means  proclaim,  it  has  deprived  future  genera- 
tions of  the  right  to  am.end  their  Constitution  in  any  way  they  see  fit,  and  is  invalid. 
In  that  event,  the  Legislature  alone  could  frame  and  submit  the  question,  and  it  says, 
"You  must  submit  the  Constitution  to  the  people."  Now,  gentlemen,  let  us  see  what 
your  source  of  power  is.  I  want  to  find  out  whether  you  have  got  power  or  not  to  pro- 
claim the  Constitution.  I  have  just  argued  vfhat  those  words  mean  in  the  Constitution. 
I  have  behind  me,  as  to  the  construction  of  those  words,  the  great  men  of  bygone 
days.  I  have  in  favor  of  that  construction  of  those  words  the  Underwood  Constitu- 
tional Convention,  which  put  them  into  the  Constitution.  I  have  in  favor  of  it  the 
opinion  of  the  Legislature  of  Virginia,  saying  that  that  is  what  it  meant.  I  have  the 
declaration  of  the  Democratic  party  of  Virginia,  saying  that  those  words  mean  to 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  YIEGIXIA.  3219 


submit.  Judicial  decisions  say  that  they  mean  to  submit.  Then,  that  being  the  case, 
if  we  know  anything,  we  know  the  meaning  of  those  words.  We  can  say  that  they 
do  not  mean  it,  we  can  call  night  day  and  day  night;  we  can  do  almost  anything  with 
our  tongues,  and  we  can  believe  almost  anj^thing  in  heaven  or  in  earth  if  we  want  to 
believe  it. 

Now,  we  have  all  this  great  authority  in  favor  of  the  meaning  of  those  v»^ords. 
Where  do  you  get  your  poY«^er?  I  want  to  go  a  little  deeper  into  this  thing.  I  reckon 
you  will  admit  that  you  get  your  power  from  the  people.  The  people  sent  you  here. 
The  people  are  your  masters.  You  did  not  just  come  here  of  your  own  will.  You  did  not 
just  suddenly  burst  into  this  hall  out  of  space,  panoplied  for  proclaiming  the  Con- 
stitution.   You  did  not  do  that.    No,  I  reckon  you  did  not. 

Where  did  you  get  your  power?  Bid  you  not  get  it  from  the  people?  You  did  not 
have  it  before  you  w^ere  elected.  From  whom  did  you  get  it?  I  want  to  see  what 
they  thought  they  were  giving  you.  That  is  the  gist  of  the  whole  matter.  Let  us 
see  what  the  people  thought.  The  Underwood  Convention  put  that  clause  in  the  Con- 
stitution. I  have  shovm  you  w^hat  they  thought  it  means.  I  have  shov>m  you  what 
great  jurists  thought  it  meant.  The  great  Democratic  party  came  forvrard,  and  took 
charge  of  the  matter  and  said:  "We  are  going  to  submit  it  to  the  people."  The  Legis- 
lature of  1900  passed  an  act  saying  it  should  be  submitted. 

Now,  the  people  were  parting  with  their  power.  Under  what  conditions  were 
they  parting  with  it?  You  may  quibble  about  this  language  as  much  as  you  please. 
What  did  they  think  about  it  when  they  were  voting?  They  had  been  unmistakably 
told  that  it  would  be  submitted.  Then  when  they  came  to  part  with  their  power,  they 
were  parting  with  it,  and  giving  it  to  you  under  fhe  express  declaration  that  it  was 
a  limited  power.  How  are  you  going  to  get  cut  of  that  now?  See  if  you  can  g^t  out 
of  it  fairly  and  squarely.  You  come  and  say,  "I  don't  care  what  the  people  thought. 
The  language  means  so  and  so.  I  don't  care  what  the  people  thought.  I  don't  care 
what  they  w^ere  trying  to  do.    We  don't  intend  to  obey." 

There  are  not  more  than  one  or  tvro  men  in  the  Convention,  certainly  not  more 
than  three  or  four,  who  said  anything  about  proclaiming  the  Constitution  until  re- 
cently. No  one  but  Judge  Green  said  anything  about  it  at  the  first  assembling  of  the 
Convention.  I  believe  J.  Thompson  "Album"  Brown  (laughter)  did  say  he  was  for 
submission  to  an  abridged  electorate.  But  I  am  talking  about  the  promises  generally 
held  out  by  the  party,  and  otherwise.  The  party  said  submit.  The  delegates  elected 
by  the  Legislature  said  submit.  Three-fourths  or  more  of  the  delegates  who  ever 
said  anything  about  the  question  at  all,  said  they  were  going  to  submit,  and  the  great 
masses  of  the  voters  of  this  State  were  led  into  the  belief  that  they  intended  to  submit 
the  Constitution,  before  they  cast  their  votes  for  a  Convention.  We  w^ould  not  now 
b<;  sitting  in  the  hall  as  a  Convention  if  3'ou  had  said  you  were  for  proclamation,  if 
you  had  put  such  a  construction  upon  those  words  before  you  were  elected  as  you 
put  upon  them  now.  The  people  would  not  have  elected  you.  They  w^ouid  not  have 
given  you  any  povrer  at  all.  You  would  not  have  had  any  Convention.  But  you  went 
before  the  people  under  all  these  promises,  under  all  these  pledges,  under  this  law 
making  it  your  duty  to  submit,  to  obtain  their  votes.  You  knew  at  the  time  that  they 
expected  you  to  submit  it.  Then  you  come  into  a  Convention,  and  you  picked  up 
words  in  the  Constitution,  and  begin  to  quibble  and  to  construe  away  the  dearest 
rights  of  the  people.  That  is  what  you  are  trying  to  do.  You  ought  not  to  do  it.  If 
you  do,  it  may  turn  out  for  the  best.  I  do  not  know.  But  when  you  do  it,  you  usurp 
a  power  which  was  never  given  you,  and  which  you  are  bound  to  know  you  do  not  have. 
You  have  not  got  it.    You  have  not  a  particle  of  power  to  proclaim. 

Mr.  Meredith  is  to  speak  on  this  subject  presently.  I  call  upon  him  to  answer  the 
point  I  have  just  made.  I  tell  him  that  the  people  of  this  Commonv\'ealth  were  led  to 
believe  before  they  cast  their  votes  that  this  Convention  would  submit  its  work  to 
them.    Having  been  led  to  believe  that,  and  we  having  received  our  commissions  under 


3220  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIKGINIA. 

that  state  of  affairs,  we  are  bound  as  patriots,  we  are  bound  as  honorable  men,  to 
comply  with  our  contract.  How  are  you  going  to  get  around  it?  Here  is  the  way. 
You  say  you  had  a  recess,  and  you  went  home  during  the  recess,  and  had  a  littleJ 
mass-meeting,  and  the  mass-meeting  told  you  to  proclaim  the  Constitution;  therefore 
I  am  going  to  vote  contrary  to  the  will  of  the  people  as  expressed  at  the  polls;  I  am 
going  to  violate  my  commission;  I  am  going  to  exercise  a  pov^^er  never  given  to  me. 
The  people  have  already  given  you  power  to  come  here  and  frame  the  Constitution, 
and  they  have  required  you  to  submit  it.  They  did  that  in  a  legal  way,  in  the  only 
Vv'ay  in  which  they  could  do  it.  During  the  recess  you  go  home,  and  you  fish  around 
through  the  air,  and  you  say,  "What  is  the  public  sentiment;  what  is  it?"  Well,  it 
is  for  proclaiming.  And  you  get  up  a  little  mass-meeting.  You  go  to  two  or  three 
men  of  influence,  and  you  ask  them  about  it,  and  they  say,  "It  is  all  right;  just  go 
on,  and  knock  the  thing  winding."  (Laughter.) 

"It  doesn't  matter  whether  you  have  got  the  power  or  not.  Put  on  your  boots  and 
spread  yourself  in  Richmond.  Take  the  power.  Take  it.  Assume  it.  Assert  it.  Pro- 
claim the  new  Constitution." 

Are  you  going  to  establish  a  precedent  to  the  effect  that  after  the  people  have 
cast  their  votes  and  have  given  you  certain  powers,  that  you  will  go  back  home  and 
have  a  little  bit  of  a  mass-meeting,  and  do  away  with  those  pov/ers? 

I  have  not  been  arguing  very  much  on  the  matter  of  the  pledge  of  the  party.  I 
am  arguing  to  show  you  what  power  you  have.  I  was  not  in  the  Norfolk  Convention, 
but  as  long  as  I  remain  a  votary  of  the  Democratic  party  I  will  try  to  keep  its  solemn 
pledges.  Certainly  every  man  who  did  attend  that  Convention  is  required  to  do  so. 
But  I  am  not  arguing  particularly  that  you  should  submit  the  Constitution  because 
the  Democratic  party  promised  to  submit  it.  I  say  you  ought  to  submit  it.  The  gen- 
tleman from  Prince  Edward  says  the  Democratic  party  had  no  jurisdiction.  In  other 
words,  the  gentleman  from  Prince  Edward  charges  the  Democratic  party  with  exer- 
cising a  jurisdiction  that  it  did  not  have.  Well,  it  exercised  it  whether  it  had  it  or 
not.  It  made  the  promise,  whether  it  had  it  or  not.  I  frankly  admit  that  I  do  not 
very  much  expect  political  parties  to  be  overly  exact  keeping  their  promises. 

But  I  am  arguing  about  what  the  people  thought  v/hen  they  elected  you.  What 
power  did  they  give  you?  They  thought  they  were  giving  you  a  limited  power;  they 
thought  you  v/ould  submit  the  Constitution  to  them. 

When  men  came  to  cast  their  votes  for  me  they  might  have  argued  this  way: 
Everybody  says  the  Constitution  is  to  be  submitted  to  us.  Wysor  himself  says  so. 
This  is  what  Vv^e  understood  when  we  voted  for  the  Convention.  So  they  cast  their 
votes  for  me.  Do  you  reckon  I  am  going  back  on  that  sort  of  a  promise?  I  acted 
under  it.  They  acted  under  it.  That  is  the  kind  of  power  they  gave  me,  and  that  is 
all  the  power  they  have  given  me;  and  I  am  not  going  to  take  any  more. 

Now,  gentlemen,  let  us  pursue  the  argument  a  little  further.  That  is  all  the  power 
the  people  intended  to  give-  you,  and  as  a  m^atter  of  fact,  that  is  all  that  was  given 
to  you.  Let  us  take  up  the  act  of  the  Legislature  for  a  little  while.  The  language  in 
the  Constitution  being  that  you  shall  propose,  is  perfectly  valid.  The  people  can  put 
in  their  Constitution  such  a  provision  as  that,  because  it  leaves  the  people  full  power 
to  act  in  the  matter.  That  being  a  valid  provision  in  the  Constitution,  if  the  Legisla- 
ture acted  in  pursuance  of  it,  then  the  act  of  the  Legislature  is  valid.  What  did  the 
Legislature  in  1900  do?  It  passed  an  act  submitting  the  question,  following  the  lan- 
guage of  the  Constitution.  Vv^hat  did  the  Legislature  of  1901  do?  It  provided  for  the 
election  of  delegates,  and  said  they  should  submit  the  Constitution  to  the  people. 
The  Legislature  of  1901  was  within  the  constitutional  limits.  It  was  doing  what  the 
Constitution  authorized  it  to  do,  and  doing  it  in  pursuance  of  the  Constitution. 

I  want  to  call  your  attention  to  this  point.  The  Constitution  says  that  the  Legis- 
lature shall  provide  for  the  election  of  delegates.  You  say  the  Legislature  could 
not  limit  your  powers.     Who  decided  how  many  of  you  there   should  be  here? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIRGIXIA.  3221 

The  Legislature  could  have  a  Constitutional  Convention  of  twenty  members.  They 
could  have  have  had  a  Constitutional  Convention  of  fifty.  They  could  have  ar- 
ranged it  so  that  my  district  would  have  been  so  large  that  some  more  prominent  man 
would  have  been  elected,  and  I  Y»^ould  not  be  here  at  all.  The  Constitution  gives  them 
the  power  to  fix  the  number  of  delegates.  They  are  acting  within  the  Constitution, 
and  in  pursuance  of  the  Constitution  when  they  tell  you  that  you  shall  submit  it  to  the 
people  for  ratification  or  rejection.  That  is  the  law.  I  am  shov/ing  you  v/hat  you 
promised  the  people,  and  shovs^ing  you  what  the  law  requires  you  to  do.  Yet  you 
come  here  and  you  want  to  violate  all  constitutional  precedent,  and  when  a  Demo- 
cratic Legislature  of  good  men,  representing  all  the  people  of  this  State,  tell  you 
that  you  must  submit  the  Constitution  to  the  people,  you  are  going  to  tell  them  they 
have  nothing  to  do  with  it,  and  that  the  people  behind  them  have  nothing  to  do  with 
it.    That  is  the  position  you  have  taken. 

So,  then,  you  are  bound  to  submit  it  if  you  follow  the  law. 

When  I  speak  of  power  I  speak  of  rightful  power.  You  may  exercise  the  power  to 
proclaim  it,  and  perhaps  you  will  do  it,  but  that  does  not  give  you  the  power.  When 
I  say  you  have  no  power  to  proclaim  it,  I  mean  that  you  have  no  rightful  power.  You 
may  go  ahead  and  do  it,  anyhow.  You  may  do  it  honestly;  but  if  you  have  not  got  the 
power  you  are  usurping  the  power.  To  whom  are  you  going  to  submit  it?  The  law  re- 
quires you  to  submit  it  to  the  electorate.  You  will  have  to  submit  to  the  only  elect- 
orate that  you  have  got,  and  that  is  the  present  one. 

Mr.  Meredith:  Before  you  begin  to  discuss  the  question  as  to  what  electorate  it  is 
to  be  submitted  to,  will  you  state  whether  you  agree  with  the  motion  made  by  the  gen- 
tleman from  Norfolk  this  morning,  that  it  shall  not  be  submitted  to  the  electorate  by  the 
Legislature?   What  is  your  position  on  that? 

Mr.  Wysor:  I  have  not  examined  that  resolution  carefully,  and  I  would  not  like 
to  answer  that  question  without  a  full  examination. 

Mr.  Meredith:  Do  you  propose  to  argue  for  submission  without  knowing  whether 
you  have  got  the  power  to  submit? 

Mr.  Wysor:  I  know  we  have  got  it  under  the  Constitution,  and  under  the  vote, 
and  under  the  legislative  act. 

Mr.  Meredith:  Did  not  the  legislative  act  say  that  if  you  did  not  submit  the  Con- 
stitution by  a  certain  day  in  October,  you  should  not  submit  it,  but  should  send  it  to 
the  Legislature.    That  is  in  the  act  of  the  General  Assembly. 

Mr.  Wysor:    It  may  be  that  is  v/hat  we  ought  to  do  with  it. 

Mr.  Thom:  I  will  say  that  my  friend  unintentionally  misstates,  or  does  not  fully 
state,  the  resolution.  The  resolution  was  not  to  provide  for  sending  it  back  to  the 
Legislature,  but  v^-as  to  send  it  back  to  the  Legislature  in  order  that  they  might  pass 
such  laws  as  were  necessary  and  proper  for  its  submission  to  the  people. 

Mr.  Meredith:  That  is  the  same  thing.  You  have  got  to  send  it  back  to  the  Leg- 
islature. 

Mr.  Wysor:    I  do  not  think  that  it  would  be  improper. 

Mr.  Meredith:  That  is  what  I  am  asking  you.  I  want  to  know  if  you  believe 
that  would  be  necessary,  and  if  you  advocate  it? 

Mr.  Wysor:  I  do  not  knovv^  that  it  would  be  necessary.  I  think  that  the  Conven- 
tion could  submit  it  and  ignore  that  provision  of  the  act,  because  when  they  do  submit 
it,  they  would  do  exactly  the  same  thing  the  Legislature  would  do  when  it  reached 
it,  and  there  could  be  no  complaint  about  it.  The  Legislature  has  already  said  that 
the  Constitution  must  be  submitted  to  the  people.  It  also  said  that  if  you  did  not 
get  through  by  a  certain  time  and  submit  it,  you  should  refer  it  to  another  Legisla- 
ture to  deal  w^ith  the  question  of  its  submission.  I  believe  that  is  the  language  of 
the  act.  But  whenever  you  submit  to  the  people,  whenever  you  go  back  to  the  source 
of  power,  whenever  you  send  the  Constitution  where  it  ought  to  go,  and  where  it 
must  go,  it  dees  not  matter  whether  it  goes  through  you  or  through  the  Legislature. 


3222  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Ycu  have  done  what  you  ought  to  do,  and  you  have  done  what  the  law  requires  you 
to  do. 

The  language  of  the  act  to  which  the  gentleman  from  Richmond  refers  reads: 

But  if  said  Convention  shall  not  propose  a  revised  and  amended  Constitution  on  or 
before  the  5th  day  of  October,  1901,  it  shall  remain  for  the  next  General  Assembly  to 
enact  such  measures  as  it  may  deem  proper  for  submitting  the  said  revised  and  amended 
Constitution  to  the  people  of  this  Commonwealth  for  ratification  or  rejection. 

That  provision  was  no  doubt  passed  as  a  matter  of  convenience.  A  Legislature 
would  meet  soon  after  October,  and  they  thought  it  might  be  necessary  to  have  an 
act  passed  to  submit  it.  The  same  act  provided  for  all  the  machinery  for  submission 
up  to  a  certain  time,  and  it  provided  if  you  did  not  submit  it  during  that  time  that 
you  should  refer  it  to  the  Legislature  to  do  what?    Why,  to  submit  it.    It  says: 

But  if  such  Convention  shall  not  propose  the  revised  and  amended  Constitution  on 
or  before  the  5th  day  of  October,  1901,  it  shall  remain  for  the  next  General  Assembly  to 
enact  such  measures  as  it  may  deem  proper  for  submitting  the  said  revised  and  amended 
Constitution  to  the  people  of  this  Commonwealth. 

Mr.  Flood:  May  I  call  attention  to  the  fact  that,  if  the  Constitution  is  completed 
by  the  5th  day  of  October,  the  act  provides  all  the  machinery  for  the  submission  of  it 
to  the  people,  but  being  doubtful  as  to  whether  or  not  it  could  be  completed  by  that 
date  this  provision  was  put  in,  directing  the  next  General  Assembly  to  provide  the 
machinery  for  submitting  the  Consf.tution  to  the  people?  It  was  done  only  in  order 
to  save  space  and  to  provide  the  machinery  for  submitting  the  Constitution  to  the 
people,  if  the  Constitution  was  not  completed  by  the  5th  of  October. 

Mr.  Wysor:  I  thought  it  was  passed  under  some  such  circumstances  and  with 
some  such  view. 

Now,  I  will  answer  the  gentleman  as  to  what  I  think  about  this  matter.  I  am 
rather  inclined  to  think  we  should  follow  the  act  of  the  Legislature  and  carry  it  out 
T  do  not  say  it  is  illegal  not  to  do  it.  I  do  not  say  it  is  illegal  for  you  to  submit  the 
Constitution  to  the  people,  because  you  are  accomplishing  exactly  what  the  Legis- 
lature will  accomplish  if  it  was  referred  to  them.  There  may  be  reasons  why  we  our- 
selves should  provide  for  its  submission,  and  I  believe  the  Legislature  would  approve 
of  your  doing  so;  but  neither  the  Legislature  nor  the  people  will  ever  approve  of 
your  violating  the  Constitution,  violating  the  legislative  act,  and  violating  your  prom- 
ise, and  assuming  power  that  has  not  been  given  to  you  by  proclaiming  the  Constitu- 
tion. 

I  will  come  now  to  the  question  as  to  the  electorate  to  which  it  should  be  sub- 
mitted. Do  you  want  to  violate  all  legal,  moral  and  constitutional  principles  .because 
there  are  146,000  negro  voters^  in  the  State?  Is  there  a  man  in  this  Commonwealth 
who  will  say  that  if  ours  were  entirely  white  he  would  be  willing  to  proclaim  this 
Constitution?  If  so,  I  want  him_  to  arise  right  now  and  say  so,  and  I  will  pause  a  few 
seconds  to  give  him  an  opportunity  to  do  it.  Suppose  it  was  an  entire  w^hite  electorate, 
without  any  negroes,  would  you  proclaim  it?  None  of  you  answer  that,  and  you  had 
better  not.  If  you  answer  that  question  in  the  affirmative  it  Vv^ould  stick  to  you  and 
burn  you  like  the  shirt  of  Nessus.  You  v/ould  not  dare  to  say  proclaim  unless  you 
had  negroes  in  your  electorate.  The  Fifteenth  Amendment  may  be  bad;  but  it  is  a 
part  of  the  Constitution  of  the  United  States,  and  the  negroes  are  a  part  of  the  elect- 
orate. In  order  to  submit  the  Constitution  you  have  got  to  submit  to  the  whole  elect- 
orate. If  you  can  take  out  146,000  negroes,  you  can  take  away  some  of  the  white  fel- 
lows, some  coopers  who  make  barrels,  and  you  can  say,  "We  don't  want  them;  they 
make  barrels,  and  whiskey  is  put  into  the  barrels,  and  one  thing  and  another,  and 
w-e  won't  let  them  vote."  You  can  exclude  all  of  them.  You  can  cut  out  the  doctors, 
and  you  can  say  you  would  exclude  the  lawyers,  and  you  would  exclude  everybody 
but  a  few  and  submit  the  Constitution  to  them. 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3223 

But  you  must  submit  it  to  the  people,  and  by  the  people  is  meant  the  entire  pres- 
ent electorate.  It  cannot  mean  anything  else.  You  cannot  submit  it  to  anything  else. 
It  has  been  argued  here  that  you  can  submit  it  to  a  restricted  electorate,  and  that 
Virginia  has  heretofore  submitted  her  Constitutions  to  a  restricted  electorate.  I  deny 
it.  I  not  only  deny  it,  but  I  know  that  there  is  not  a  word  of  truth  in  it.  Virginia 
has  never  submitted  any  Constitution  to  a  restricted  electorate.  The  Constitution  of 
1829-'30  was  submitted  to  an  enlarged  electorate.  The  Constitution  of  1850  was  sub- 
mitted to  an  enlarged  electorate.  The  Underwood  Constitution  of  1869  was  submitted 
to  an  enlarged  electorate.  Take  the  Constitution  of  1850,  and  what  does  it  say  about 
that?  Then  the  enlarged  electorate  took  in  every  man  that  was  twenty-one  years  of 
age,  while,  previous  to  that  time,  the  freeholders  only  had  the  right  to  vote.  When 
the  electorate  was  enlarged  gentlemen  say  it  was  a  restricted  electorate,  because  it 
restricted  the  rights  of  the  freeholders.  I  sometimes  get  mad  when  I  talk  to  a  man 
privately,  and  he  argues  to  me  that  an  enlarged  electorate  is  a  restricted  electorate, 
when  he  says  to  go  backward  is  the  same  thing  as  to  go  forward.  The  freeholders 
in  the  Convention  of  1850  were  undertaking  to  give  their  brethren  the  right  of  suf- 
frage which  had  been  improperly  denied  to  them.  The  freehold  right  of  suffrage  had 
been  crammed  down  the  throats  of  the  people  at  the  point  of  the  bayonet.  Honorable 
men  had  been  excluded  from  taking  part  in  their  country's  government  because  they 
did  not  own  a  little  piece  of  land.  They  could  fight  their  country's  battles.  They 
could  charge  the  breastworks  and  die  on  the  battlefield,  but  they  could  not  vote.  The 
Constitutional  Convention  of  1850  was  enlarging,  it  was  progressing,  it  was  advancing, 
it  was  reaching  out  and  taking  within  the  fold  of  the  sovereign  people  a  greater  num- 
ber. Ah,  but  they  say  you  restricted  the  right  of  the  freeholder.  Well,  the  vote  may 
have  cut  down  his  power  to  a  certain  extent,  but  it  was  not  taken  from  him  alto- 
gether. He  was  still  left  to  exercise  the  right  and  privilege  of  suffrage,  in  common 
with  his  brethren. 

But  let  us  come  down  to  that  argument  a  little  closer.  Mr.  Randolph,  when  he 
said,  in  the  Convention  of  1829-'30,  you  must  refer  the  Constitution  to  the  freehold- 
ers— to  the  electorate  that  sent  you  to  the  Convention — was  exactly  right,  and  he 
was  not  held  to  be  wrong  by  the  Convention  in  that  particular,  as  I  will  show  you  in 
a  few  moments.  The  freeholders  were  the  electorate;  there  is  where  he  got  his  power. 
He  could  refer  it  back  to  nobody  else,  without  he  had  authority  to  do  it  from  the 
freeholders.  I  want  to  pause  here  for  a  moment  and  let  you  take  that  argument  in. 
The  present  electorate  is  my  electorate,  and  it  is  your  electorate.  It  is  composed  of 
both  whites  and  negroes.  From  that  electorate  we  are  supposed  to  derive  our  power, 
and  ihat  is  the  only  electorate  to  which  we  can  submit  this  Constitution.  Mr.  Ran- 
dolph was  right.  He  got  up  in  the  Convention  of  1829-'30  and  said:  "Submit  this 
Constitution  back  to  the  freeholders,  because  they  elected  you,  and  from  them  you 
derive  your  power.  There  is  your  source  of  power."  How  was  the  argument  an- 
swered by  Chief  Justice  Marshall  and  others?  It  was  not  answered  on  the  ground 
that  it  was  not  sound  argument,  but  was  answered  in  this  v/ay:  Here  is  an  act  passed 
by  the  representatives  of  the  freeholders,  which  says:  "Submit  this  Constitution  to 
the  enlarged  electorate."  That  is  the  way  that  question  was  decided.  They  had  an 
act  passed  by  the  freeholders  themselves,  saying  that  the  Constitution  was  not  to  be 
submitted  to  them,  but  was  to  be  submitted  to  the  enlarged  electorate,  and  that  is  how 
it  was  done.  The  same  thing  was  done  in  1850.  And  yet  now,  in  the  face  of  these 
facts,  gentlemen  will  stand  up  in  this  Convention  and  argue  that  Constitutions  of  Vir- 
ginia have  been  submitted  to  abridged  electorates.  It  is  not  so.  They  have  been  sub- 
mitted to  enlarged  electorates.  Take  Mr.  Randolph's  position,  which  some  of  you 
have  invoked  here.  What  is  it?  We  have  Mr.  Randolph's  position  stated  by  him, 
that  we  must  refer  it  back  to  the  electorate,  and  that  is  the  present  electorate.  You  do 
not  know  the  new  electorate.  It  does  not  know  you.  It  had  nothing  to  do  with  you. 
You  never  got  any  power  from  it.  You  should  submit  it  back  to  the  electorate  that 
gave  you  the  power.   The  Constitution  says  so,  the  act  of  the  Legislature  under  which 


3224 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


you  were  elected  says  so.  And  yet  you  come  here,  and  without  any  real  excuse,  in  my 
judgment,  you  want  to  violate  the  law,  you  want  to  violate  constitutional  principles, 
you  want  to  violate  promises  and  pledges  made  to  the  people,  and  proclaim  this  Con- 
stitution.   What  do  you  think  about  dealing  in  that  way  with  a  sovereign  people? 

You  f-ay  one  hundred  men  know  more  about  it  than  the  people.  As  a  scientific 
question  I  expect  that  is  so.  But  as  a  political  question  it  is  not  so.  The  people  rule, 
and  the  people  have  the  right  to  pass  upon  their  fundamental  law. 

We  have  as  intelligent  an  electorate  in  Virginia,  if  you  will  exclude  the  colored 
race,  as  you  ever  had,  and  perhaps  a  more  intelligent  electorate  than  you  ever  had. 
Are  you  going  to  stand  here  and  say  they  have  not  got  sense  enough  to  ratify  a 
good  Constitution? 

All  of  the  people  may  not  even  read  the  Constitution,  and  many  of  them  will  not; 
but  they  will  vote,  as  a  rule,  very  intelligently  on  the  subject.  There  are  many  un- 
educated men  who  would  do  it.  I  have  seen  ignorant  men  working  in  a  corn-field  that 
have  more  sense  about  constitutional  government  than  men  who  were  in  banking 
I'ooms,  and  more  than  some  educated  men.  As  a  rule,  that  class  of  men  are  more 
jealous  of  their  rights  than  the  more  intelligent.  They  are  afraid  you  are  going  to 
do  what  Mr.  Moncure  says,  "clap  a  trap  over  them";  and  before  you  put  the  trap 
over  them  they  want  a  little  time  to  look  at  the  trap.  They  will  find  out  whether  the 
Constitution  is  a  good  one  or  not.  You  need  not  be  afraid  of  them.  I  certainly  am 
not  afraid  of  them.  But  look  at  the  inconsistency  of  these  proclaimers.  If  it  was  a 
bad  Constitution  in  your  judgment,  and  would  bring  ruin  upon  the  State,  would  you 
proclaim  it?  No;  you  know  you  wouldn't  do  it.  You  would  submit  it  to  the  very 
people  that  you  are  afraid  to  submit  a  good  one  to.  Suppose  then  they  should  pass  a 
bad  one,  what  sort  of  a  fix  would  you  be  in?  If  it  were  bad,  you  say  you  could  submit 
it  in  order  that  the  people  may  say  whether  it  is  bad  or  not.  You  give  them  credit 
for  sense  enough  to  reject  a  bad  Constitution,  but  say  that  they  haven't  sense  enough 
to  adopt  a  good  one.  That  is  the  position  you  occupy  here  in  this  discussion.  I,  my- 
self, think  we  can  always  trust  the  people.  I  say  if  you  are  going  to  trust  them  at 
all  you  should  trust  them  on  this  fundamental  law.  They  have  got  to  live  under  the 
Constitution,  and  that  is  the  one  thing  of  al]  things  that  they  ought  to  be  allowed  to 
vote  upon. 

This  may  be  a  good  Constitution.  I  believe  it  is  an  excellent  Constitution.  I  do 
not  believe  that  anybody  would  be  hurt  if  it  is  proclaimed,  just  because  you  proclaim 
it.  But  you  set  a  bad  precedent.  You  take  away  from  the  people  the  right  to  vote 
upon  the  fundamental  law.  Take  the  case  of  the  gentleman  from  Richmond  and  Lan- 
caster (Mr.  Dunaway).  He  got  up  here  the  other  day  and  described  the  provisions 
of  the  Constitution  as  great  big,  luscious,  juicy  strawberries,  with  nice  sugar  on  them, 
and  pure,  sweet  cream  on  them,  and  said  they  are  the  things  we  give  to  the  people 
out  of  silver  spoons.  Nov/,  I  like  strawberries,  and  I  like  cream;'  I  like  sugar,  and  I 
like  to  eat  out  of  a  silver  spoon  if  I  can;  but  I  don't  want  any  man  to  cram  straw- 
berries down  my  throat.  (Laughter.) 

Now,  gentlemen,  I  v/ill  conclude  in  a  few  moments.  I  see  that  my  throat  is  in 
such  condition  that  it  will  not  allow  me  to  occupy  much  more  of  your  time.  I  want 
to  say  to  this  Convention  that  wfe  should  be  careful  how  we  violate  the  fundamental 
principles  of  law,  and  promises  and  pledges.  It  will  be  brought  up  against  you  for 
generations.  This  is  one  of  the  finest  Constitutional  Conventions,  take  it  on  the  aver- 
age, that  ever  organized  on  earth.  (Laughter.)  I  mean  that  in  good  faith.  The  Con- 
vention of  1829  had  bigger  men  in  it.  It  had  men  of  bigger  brains.  It  had  bigger 
orators,  and  greater  constitutional  lawyers.  History  shows  it  and  will  continue  to 
show  it;  but  there  were  only  a  few  of  them,  and  they  dominated  the  balance  of  the 
Convention.  I  am  speaking  of  this  Convention  as  an  average.  I  do  not  believe  that 
the  Convention  of  1829  and  1850  were  equal  to  it.  You  have  made  a  good  Constitu- 
tion.   It  is  being  met  with  approval  everywhere.    You  are  being  complimented.  But 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIKGIXIA. 


3225 


now,  right  at  the  end  of  the  matter,  you  are  going  to  put  a  blot  on  your  escutcheon. 

We  cannot  afford  to  violate  our  pledges  and  the  law  because  a  few  people  say  so; 
or  a  great  number,  for  that  matter.  Take  the  little  meetings  they  have  had  in  Rich- 
mond for  the  purpose  of  giving  to  this  Convention  the  power  to  proclaim. 

The  first  meeting  in  Richmond  was  held  in  the  Clay  Ward.  This  meeting  was  a 
frost.  The  newspapers  say  that  3.1r.  Meredith  was  asked  by  a  member  of  the  Revi- 
sion Committee  what  George  D.  Vrise  would  do  if  all  the  wards  of  the  city  should 
endorse  proclamation,  and  he  replied  that  if  the  other  v/ards  were  no  better  at- 
tended than  the  meeting  in  Clay  Ward,  that  Mr.  Wise  could  do  as  he  pleased.  The 
next  meeting  was  held  in  Jefferson  Ward,  and  the  vote  stood  7  to  7,  and  the  chair- 
man cast  the  deciding  vote  in  favor  of  proclamation.  Then  came  Fulton  Ward  with 
thirty  votes  for  submission.  A  representative  of  The  Times  said  that  Madison  Ward 
would  make  a  respectable  shovung.  It  seems  that  he  took  this  ward  particularly  in 
charge.  The  Hon.  Eugene  Withers  addressed  the  meeting,  and  he  was  introduced  as 
the  father  of  the  Convention  movement.  The  result  was  a  vote  of  20  for  proclamation 
and  16  for  submission.  Less  than  200  people  voted,  pro  and  con,  in  the  meetings  in 
the  city  cf  Richmond,  with  a  population  of  85,000  people.  And  yet  Richmond  is 
claimed  to  be  overvrhelmingly  for  proclamation.  That  is  the  way  they  get  their  au- 
thority to  trample  on  constitutional  principles,  to  ignore  the  solemn  acts  of  the  Legis- 
lature, and  to  violate  party  promises  and  pledges. 

I  used  to  think  the  gentleman  from  Danville  (Mr.  Withers)  was  a  great  people's 
m.an.  He  would  get  up  and  vrant  this  officer  to  be  elected  by  the  people,  and  that  officer 
to  be  elected  by  the  people.  You  could  hear  him  crying  aloud,  "The  people,  the  people, 
the  people,"  and  I  thought  he  was  the  biggest  people's  man  in  the  whole  country.  I 
said  "Hurrah  for  father!  "  (Laughter.)  Kow,  what  do  we  find  father  doing?  We  find 
him  in  this  matter  in  v^hich  the  people  are  deeply  interested,  which  concerns  their 
right  to  pass  upon  the  fundamental  law,  a  right  they  have  always  exercised,  we  find 
father  out  here  speaking  to  twenty  men,  telling  them  that  they  must  vote  for  pro- 
clamation.   VrtLj,  old  man,  you  are  a  little  off  your  base.  (Laughter.) 

Now,  gentlemen,  in  conclusion,  I  want  to  say  that  I  believe  this  is  a  good  Con- 
stitution, and  everybody  knows  it.  I  think  if  you  submit  it  to  the  people  their  voice 
in  its  approval  will  be  like  the  sound  of  many  waters.  Virginia  has  waited  for  nearly 
a  third  of  a  century  for  this  blessed  time  of  deliverance  from  the  bondage  resulting 
from  internecine  strife.  "SATien  brother  fights  brother,  ,oh,  how  long  it  takes  the  wounds 
to  heal!  Oh,  dear  brother  of  the  North,  stretch  forth  thy  hand  half-way  across  the 
bloody  chasm,  and  grasp  the  warm  hand  of  the  Sunny  South  extended  unto  thee,  and 
let  her  warm  blood  pulse  through  all  the  regions  of  thy  heart,  and  youv  blood  through 
her's,  and  cement  a  union  that  will  be  indissolvable  forever,  and  let  the  benediction 
come  down  from  heaven:  Whom  God  hath  joined  together,  let  no  man  put  asunder! 
(Applause.) 

This  great  country  is  our  common  country.  Our  ancestors  braved  the  seas  to  find 
it.  Their  blood  defended  it.  They  have  established  a  temple  of  liberty',  the  like  of 
which  the  world  has  never  seen.  In  this  great  work  Virginia  became  the  mother  of 
States  and  of  statesmen.  Arise,  dear  Virginia,  and  weep  no  more  for  thy  fallen  braves. 
Thy  loyal  sons  and  daughters  will  defend  your  cause.  Look  abroad  into  the  great 
world  to  the  character.  Those  two  great  mountain  peaks,  towering  far  above  the 
plain,  with  cr^'stal  streams  laving  their  bases  and  the  sunlight  on  their  summits  like 
benedictions  from  heaven,  are  thy  Jackson  and  thy  Lee.  Those  white-tented  fields, 
stretching  far  and  wide,  are  the  legions  of  Lee  and  Jackson,  who  have  pitched  their 
tents  on  Fame's  eternal  camping  ground.  Arise,  Virginia,  and  take  thy  former  place 
as  the  brightest  jewel  in  the  great  constellation  of  States.  This  great  Union  is  like 
thy  mighty  son,  first  in  war,  first  in  peace,  and  first  in  the  hearts  of  its  citizens. 
May  it  endure  until  the  milky  way  shall  fade  and  the  heavens  be  wrapped  as  a  scroll. 
We  often  look  at  Virginia  as  our  mother.  This  is  a  beautiful  and  tender  figure  of 
speech,  but  there  is  one  that  is  to  me  more  beautiful.  Virginia  is  still  our  Virgin 
203 — Const.  Deb. 


3226  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Queen.  No  prince  or  potentate  can  win  her  hand.  I  would  like  to  pay  her  the  com- 
pliment that  the  great  poet  of  England  paid  to  Queen  Elizabeth,  when,  with  his  eye  in 
a  fine  frenzy  rolling,  he  saw — 

Plying  between  the  cold  moon  and  the  earth, 
Cupid,  all  arm'd:  a  certain  aim  he  took 
At  a  fair  vestal  throned  by  the  west, 
And  loosed  his  love  shaft  smartly  from  his  bow. 
As  it  should  piece  a  hundred  thousand  hearts; 
But  I  might  see  young  Cupid's  fiery  shaft 
Quench'd  in  the  chaste  beams  of  the  watery  moon, 
And  the  imperial  votaress  passed  on, 
In  maiden  meditation,  fancy  free. 

I  thank  you,  gentlemen,  for  your  attention.  (Applause.) 

Mr.  Lindsay:  I  move  that  the  time  for  taking  the  vote  be  extended  from  half- 
past  1  o'clock  until  half-past  5  o'clock  this  afternoon. 

The  ayes  and  noes  were  ordered,  and  being  taken,  the  result  vfas  announced — 
ayes,  52;  noes,  30. 

The  motion  was  agreed  to.  . 

Mr.  Meredith:  Mr.  President,  I  shall  not  undertake  to  follow  the  line  of  thought 
that  has  been  indulged  in  by  the  gentleman  from  Pulaski.  I  could  not  do  so  if  I  de- 
sired. I  have  no  ability  to  tell  anecdotes,  nor  have  I,  on  this  occasion,  any  desire  to 
do  so.  I  feel,  Mr.  President,  that  this  is  certainly  one  of  the  most  important,  if  not 
the  most  important  question  that  has  been  before  this  body.  I  believe  that  because 
of  its  importance  some  members  shrink  from  coming  to  a  conclusion.  I  can  readily 
appreciate,  from  my  own  experience,  the  hesitancy  that  men  might  have  in  making  up 
their  minds  upon  the  momentous  question,  whether  they  shall  vote  to  put  upon  the 
people  the  organic  law  of  the  country.  On  the  other  hand,  Mr.  President,  I  know  of 
no  circumstance  more  injurious  to  calm  thought,  and  to  a  wise  judgment  than  fear. 
And,  surely,  it  is  the  duty  of  each  one  of  us  not  to  let  a  sense  of  fear  affect  us  so 
greatly,  as  to  make  us  shrink  from  a  judgment  or  conclusion  at  which  w^e  would 
otherwise  arrive.  I  appreciate,  however  positive  my  views  may  be  upon  this  subject, 
as  much  as  any  man  the  importance  of  this  question;  but  while  the  importance  of  the 
question  justifies  the  most  careful,  the  most  prudent  and  the  most  patient  considera- 
tion of  it,  its  importance  equally  demands  that  an  opinion  and  a  judgment  should 
be  form^ed,  if  some  conclusion  is  demanded  by  the  circumstances  that  surround  us. 
I  believe  that  the  circumstances  existing  in  this  State  demand  a  decision  as  to  the 
power  of  proclamation.  It  is  my  purpose  this  morning  to  attempt  to  justify  my  con- 
clusion. 

Mr.  President,  it  is  a  little  difficult  to  follow  the  arguments  that  have  been  offered 
by  those  who  are  the  opponents  of  proclamation.  We  have  heard  it  stated  that  the 
Legislature  has  this  power,  and  that  the  Legislature  has  that  power.  But  no  one 
m.ember  who  opposes  proclamation  can  tell  us  what  is  the  extent  and  limit  of  this 
legislative  power,  which  is  claimed  by  them.  On  the  other  hand,  we  declare  that  a 
Constitutional  Convention  is  an  assemblage  of  the  people  in  the  persons  of  their  repre- 
sentatives, and  that  we  have  every  power,  every  sovereign  power,  that  the  people,  In 
their  might,  have,  and  which  they  have  not  expressly  retained  or  prohibited  us  from 
exercising.  You  will  find  it,  sir,  absolutely  impossible  to  say  what  is  the  exact  extent 
of  the  contention  of  those  gentlemen  who  advocate  submission,  under  the  theory  thai 
we  are  governed  by  legislative  acts.  The  gentleman  who  opened  this  debate  for  sub- 
mission announced  two  propositions:  First,  that  a  Constitutional  Convention  is  not  the 
political  embodiment  of  the  people,  that  it  is  not  the  gathering  of  the  representatives 
of  the  people  clothed  with  their  power.  Second,  that^the  Legislature  has  the  power 
to  restrict,  proscribe,  or  enlarge  the  powers  of  such  a  Convention. 


DEBATES  OF  TSE  COIN  STITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


3227 


]\Ir.  President,  even  the  friends  of  the  gentlemen,  who  advocate  submission,  were 
shocked  when  he  said  that  he  believed  that  the  Legislature  could  authorize  a  Consti- 
tutional Convention  to  enlarge  the  electorate.  But,  gentlemen,  when  we  look  at  the 
authorities  upon  this  question,  many  of  which  have  been  produced  here,  the  gentle- 
men are  forced  to  that  position  or  to  admit  sovereign  power  in  a  convention.  They 
cannot  simply  say  that  the  Legislature  can  restrain,  but  they  are  driven  to  the  posi- 
tion that  the  Legislature  can  give.  Gentlemen,  you  must  take  the  whole  proposition. 
You  must  define  the  character  of  this  body.  You  must  let  the  people,  who  come 
after  us,  know,  when  they  elect  a  Constitutional  Convention,  how  far  it  can  be  re- 
strained b3'  a  Legislature,  and  how  far  it  can  be  endowed  with  the  power  of  the 
people. 

Mr.  President,  in  the  language  of  the  gentleman  from  Roanoke,  it  has  been  a 
surprise  to  most  of  us  to  be  told,  that  a  Constitutional  Convention  is  subordinate  to 
legislative  restriction.  It,  sir,  was  a  shock  not  only  to  the  gentleman  from  P^oan- 
oke,  but  I  believe  it  was  a  shock  to  every  intelligent  man  in  this  Commonwealth,  who 
has  read  the  history  of  his  native  State.  Sir.  we  are  told  that  the  judiciary  can  con- 
strue this  question;  that  they  can  say  as  to  what  is  the  limitation  of  power,  and  what 
is  the  extent  of  it.  But,  sir,  this  is  rather  a  governmental  Question,  than  a  legal  one. 
There  is  no  written  statement  as  to  what  power  a  Constitutional  Convention  has. 
There  never  has  been  a  written  statement  as  to  what  is  the  reserved  power  of  the 
people.  It  is  a  gi-eat.  silent,  reserved  power  that  they  keep  unwritten  and  undefined. 
You  can  only  get  an  insight  into  it  through  the  history  of  your  country.  You  cannot 
take  it  and  read  it  like  you  can  a  legal  document,  and  construe  its  language.  You 
cannot  take  the  clauses  of  it,  like  you  can  a  contract,  and  apply  rules  of  construc- 
tion to  its  language.  You  have  got  to  arrive  at  it  by  the  history  of  your  State,  be- 
cause it  exists  only  in  that  history.  If  that  be  so,  then  when  I  am  told  by  the  gentle- 
men tipon  the  other  side,  that  the  Supreme  Court  of  Pennsylvania  has  announced  that 
the  people  never  meant  so  and  so,  I  have  a  right  to  ask  whence  did  that  court  get  its 
information?  It  did  not  get  it  out  of  any  written  law.  It  has  never  yet  been  written, 
except  by  the  hand  of  history.  And  so,  to-day,  how  can  you  find  out  what  was  meant 
by  the  people,  when  it  called  tli:"s  Con^-i-lTutional  Convention?  Will  some  judge,  unsurp- 
ing  power,  undertake  to  say  that  the  people  meant  this  or  that,  unless  he  tries  to  find 
out  what  he  believes  to  be  the  views  of  the  people  now  existing,  and  those  that  ex- 
isted in  the  past? 

'^'hat  vrere  the  views  of  our  fellow-citizens  when  we  were  called  together?  Did 
not  the  gentleman  from  Roanoke  express  what  has  been  almost  the  unanimous  view  of 
this  State,  when  he  said  that  there  had  been  a  belief  upon  the  part  of  the  people  that 
a  constitutional  convention  comes  clothed  with  the  povrer  of  the  people,  and  cannol 
be  restricted  by  legislative  enactment?  If  you  want  history  contemporaneous  witl7 
the  time  of  the  call  of  this  Convention,  look  at  what  is  said  in  the  Democratic  plat- 
form, which  has  been  referred  to,  and  in  the  act  of  the  Legislature,  which  has  been 
cited  as  the  chart  of  our  powers,  and  see  if  the  idea  did  not  exist  in  the  minds  of 
the  people  that  a  convention,  unless  expressly  restricted,  would  have  the  power  to 
proclaim  a  Constitution.  Tell  me  why  that  great  party  saw  fit  to  say  that  it  should 
be  submitted,  if  the  power  to  proclaim  did  not  exist?  I  ask,  I  demand,  that  you  shall 
get  at  the  opinion  and  belief  of  the  people  as  to  their  reserved  rights,  by  their  action 
and  by  their  history.  I  say  that  present  history  teaches  us  that  the  great  white  party 
of  this  State,  embodying,  as  it  does,  the  intelligence,  the  men  of  wealth,  the  men  of 
integrity,  and  the  men  of  power,  saw  that  it  was  necessary  to  put  in  its  platform,  in 
order  to  give  some  assurance  to  the  people,  a  declaration  that  the  Constitution  should 
be  submitted.  Why,  Mr.  President,  was  it  necessary  that  the  Legisture  should  de- 
clare, in  an  act  of  the  General  Assembly,  that  this  Constitution  should  be  submitted 
if  it  was  not  generally  recognized  you  would  have  the  power  to  proclaim?  Are  you 
to  take  the  expression  of  the  opinion  of  the  great  mass  of  the  intelligent  white  people 


3238  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OP  VIKGINIA. 

of  this  state,  in  Democratic  convention  assembled,  and  say  that  they  did  not  "recog- 
nize that  it  was  necessary  to  declare  for  submission,  in  order  to  restrict  the  natural 
power  to  proclaim?  Can  you  take  the  solemn  enactment  of  your  Legislature,  which 
declared  that  the  Constitution  should  be  submitted  to  the  people,  and  then  say  that  the 
people  did  not  believe  that  we  had  the  power  to  proclaim  it?  Why  enact  in  a  legislat- 
ive statute  that  we  should  not  proclaim?  I  demand  again,  that  you  shall  get  the  belief 
and  opinions  and  views  of  the  people  as  to  their  great  reserved  power,  from  their  actions 
and  from  their  history,  and  that  no  man,  judge  or  layman,  shall  say  that  he  thinks  that 
the  people  did  not  so  believe,  without  looking  back  at  the  past  and  construing  it  in  the 
light  of  history,  and  in  the  light  of  contemporaneous  evidence  at  the  time  of  our  election. 
Who  can  say  that  there  was  not  an  almost  unanimous  belief  that,  unless  restricted, 
we  would  have  the  power  to  proclaim?  The  gentleman  from  Roanoke  was  right.  It 
was  a  startling  idea  to  us,  that  we  came  here  "cribbed  and  cabined  and  confined"  by 
legislative  restrictions. 

Sir,  we  have  been  taught  that  a  Constitutional  Convention  was  one  of  an  extra- 
ordinary nature,  infrequent  in  its  meetings,  having  paramount  powers;  having  power 
to  separate  the  different  departments  of  the  government,  and  to  say  to  one,  "This  you 
shall  do,"  and  to  another  "that  you  shall  do";  and  having  power  to  say  to  the  Legis- 
lature itself  "this  you  shall  do,  and  this  you  shall  not  do."  I  say  it  was  startling  when 
they,  in  the  next  breath,  told  us  that  the  Legislature,  which  is  restricted  and  restrained 
by  our  power,  has  the  power  to  restrain  and  restrict  us.  I  cannot  take  any  such  con- 
struction. I  insist  that  there  shall  be  some  plain  path  marked  out.  I  must  see  ex- 
actly to  what  extent  a  legislature  has  the  power  to  restrict  a  Constitutional  Conven- 
tion, which,  itself,  has  the  power  to  say  to  the  Legislature,  "Thus  far  thou  shalt  go 
and  no  farther."  Are  we  at  one  time  the  creator,  and  at  another  the  creature?  First, 
the  Legislature  is  the  creator  and  the  Constitution  the  creature,  and  then  the  Con- 
stitution becomes  the  creator  and  the  Legislature  the  creature.  I  cannot  appreciate 
such  an  anomaly.  My  mind  becomes  entangled  in  the  confusion  that  arises  from 
such  conflicting  and  c  ntradictory  powers.  But,  Mr.  President,  these  gentlemen,  I 
repeat,  were  forced  to  lake  the  position  that  a  Legislature  can  both  restrict  and  en- 
large our  powers,  because  their  only  hope  and  their  only  anchor  of  safety  was  one 
single  decision  from  the  Supreme  Court  of  the  State  of  Pennsylvania.  Upon  that  they 
banked  their  hopes,  and  upon  that  alone  they  claimed  that  the  Constitutional  Con- 
vention of  Virginia  can  be  restrained  and  restricted  by  legislative  enactment.  What, 
sir,  is  the  substance  of  that  decision?  It  is  this:  That  after  the  people  have  spoken 
and  said  that  they  want  a  Constitutional  Convention  to  revise  and  amend  the  Con- 
stitution--that  is,  the  entire  Constitution — the  Supreme  Court  of  Pennsylvania  says 
that  the  Legislature  can  step  in  and  say,  "No,  you  shall  not  touch  that  part  of  it,  or 
this  part  of  it;  and  you  shall  proceed  in  this  way,  and  you  shall  submit  your  work  in 
this  manner."  That,  sir,  is  the  substance  of  that  opinion,  briefly  stated.  Are  we  pre- 
pared to  accept  it?  Are  we  prepared  to  accept  the  doctrine  that,  after  the  people 
have  spoken  and  said  that  they  want  a  Constitutional  Convention,  without  indicating 
any  desire  for  restriction  upon  that  body,  the  Legislature  can  step  in  and  say,  "I  will 
restrict  you?"  Sir,  the  history  of  that  case  is  a  curious  one.  The  Pennsylvania  Consti- 
tutional Convention,  as  I  gather  from  the  report  made  by  the  Judiciary  Committee  of 
the  New  York  Convention,  was  in  session  at  the  time  the  decision  was  delivered. 
As  the  Judiciary  Committee  of  the  New  York  State  Convention  said,  it  was  composed 
of  some  of  the  ablest  lawyers  in  the  State  of  Pennsylvania.  They  brought  in  a  report 
holding  that  such  a  decision  of  the  court  was  an  infringement  of  the  rights  of  the 
people,  and  an  attempt  to  violate  the  powers  of  the  Constitutional  Convention  of  Penn- 
sylvania; and,  to  a  certain  extent,  that  Constitutional  Convention  had  the  courage  of 
its  convictions,  ignored  the  decision  of  the  Supreme  Court  of  Pennsylvania  in  that 
case,  and  adopted  the  Constitution  in  violation  of  certain  legislative  restrictions.  The 
result  was  the  subsequent  case  of  Wood's  appeal,  where  the  lower  court  sustained 
the  Pennsylvania  Convention,  while  the  Supreme  Court,  after  having  had  its  opinion 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGIXIA.  3229 

in  Wells  vs.  Bain  rejected  by  the  Pennsylvania  Convention,  indulged  in  what  is  the 
longest  obiter  dictum  that  vras  ever  delivered  from  a  bench,  while  recognizing  that 
they  could  not  pass  upon  the  case,  yet  ventilates  its  views  and  enters  into  a  long 
dissertation  upon  the  power  of  the  Legislature  to  restrict  a  Constitutional  Conven- 
tion. That,  Mr.  President,  is  the  substance  of  the  case  and  its  history.  Is  it  suffi- 
cient? Is  it  strong  enough  to  make  us  doubt  our  powers.  Does  it  commend  itself 
to  us  sufficiently  to  justify  us  in  giving  up  the  belief  which  we  received  from  our 
fathers?  Yet,  that  is  what  we  are  asked  to  do  upon  this  single  decision.  I  do  not 
mean  to  allude  to  the  text  VN'riters.  They  get,  or  ought  to  get,  their  opinions  from 
the  courts.  I  am  speaking  now  only  of  decisions.  Upon  that  single  decision,  we  are 
asked  to  give  up  the  views  we  have  held  so  dear  to  us  and  so  sacred  through  all 
these  years  of  our  constitutional  government. 

Sir,  is  the  reasoning,  which  is  given  by  the  judge  in  the  opinion  in  that  case, 
sufficient  to  justify  a  change  of  belief?  In  substance,  the  reason  given  by  the  court 
was  this:  That  although  the  Legislature  had  asked  the  people  to  say  whether  or 
not,  they  wished  a  convention  called  to  amend  and  revise  the  Constitution,  and 
although  the  people  had  voted  that  they  desired  one  to  be  called,  yet  the  Legislature 
was  not  obliged  to  call  it — that  it  could  ignore  the  declaration  of  the  people — and 
that  as  it  had  that  power  it  also  had  the  power  to  limit  the  powers  of  the  conven- 
tion, if  called.  In  other  words,  it  failed  to  recognize  that  the  Legislature  would  be 
revolutionary,  if  it  refused  to  obey  the  demand  of  the  people,  and  it  failed  to  recog- 
nize that  it  was  putting  the  Legislature  over  and  above  the  people.  It  looked  upon 
the  Legislature  as  a  Lady  Bountiful,  giving  of  its  own  graciousness,  and  not  out  of 
the  powers  vdiich  had  been  confided  to  it,  as  a  matter  of  trust.  It  looked  upon  the 
Legislature  as  giving  to  the  people  not  what  belonged  to  the  people,  but  what  be- 
longed to  the  Legislature,  and  that,  as  it  was  giving  out  of  its  own  "bounty,  it  could 
limit  its  graciouEness,  and  call  a  restricted  and  limited  convention. 

Mr.  Thom:  I  would  like  to  ask  the  gentleman  from  Richmond,  during  the  course 
of  his  argument,  to  state  whether  he  considered  a  convention  to  be  an  assembly  of 
the  delegates  of  the  people  or  fhe  people  themselves. 

Mr.  Meredith:  I  shall  not  hesitate  to  state  exactly  my  views  about  a  Constitu- 
tional Convention.  I  would  state  them  now,  but  I  think  it  will  come  Tn  better  a  little 
later.  I  am  now  stating  the  position  taken  by  jou  gentlemen,  and  discussing  the 
only  case  which  has  been  cited  to  sustain  your  contention  as  to  the  power  of  the 
Legislature. 

I  say  that  the  whole  basis  and  the  whole  argument  and  all  of  the  reasoning  of 
the  opinions  of  the  Supreme  Court  of  Pennsylvania  was,  that  the  Legislature  had  the 
right  to  say  to  the  people:  "You  shall  have  this  thing  that  you  have  asked  for,  but 
you  must  take  only  what  I  will  give  you  as  an  act  of  grace."  Sir,  if  the  opinion 
as  to  the  power  of  the  Legislature  was  startling,  how  much  more  shocking  is  the 
reason  given  for  that  opinion.  If  the  principle  announced  that  the  Legislature  can 
restrict  and  restrain  a  Constitutional  Convention  is  shocking  to  us,  I  ask  3'ou  how 
much  more  shocking  to  the  sense  of  ever3^  man  who  is  living  in  this  State,  are  rea- 
sons given  by  that  court,  when  it  said,  in  substance,  that  as  the  Legislature  was  not 
obliged  to  give  it  all,  that  being  an  act  of  grace,  the  people  could  only  take  what 
should  be  given  to  them,  and  subject  to  the  restrictions  which  the  Legislature  might 
impose. 

Now,  Mr.  President,  I  do  not  believe  that  I  can  conceive  of  any  man  raised  under 
the  teachings  of  our  forefathers  who  can  accept  such  a  doctrine  as  that,  however  his 
vote  may  be  cast  upon  this  question.  There  will  be  votes  given  here  which  will 
seemingly  support  the  doctrine  that  a  Legislature  can  restrict  and  restrain,  when,  in 
actual  fact,  they  will  be  given  because  the  members  do  not  think  it  wise  to  proclaim. 
I  say  that  is  the  whole  of  that  case,  and  those  are  the  reasons,  in  substance,  that 
were  given  by  the  court.    I  know  it  is  not  put  in  the  language  of  the  court,  but,  Mr. 


3330  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

President,  I  do  not  propose  to  cover  sophistry  with  soft  and  selected  syllables.  The 
question  is  too  great  and  momentous.  The  matter  is  too  important.  The  issues  are 
too  grave  for  us  not  to  look  at  it  in  its  naked  ungliness,  and  we  ought  thus  to 
look  at  it,  in  order  that  we  may  see  it  clearly  and  unmistakably.  I  say  that  is  the 
decision  that  those  were  the  reasons  that  were  given  for  it,  and  that  it  holds  that 
the  people,  when  they  are  called  in  Constitutional  Convention,  can  be  limited  and 
restricted  and  restrained  by  legislature  enactments  imposed  after  the  people  have  au- 
thorized the  call  of  a  Constitutional  Convention. 

Mr.  President,  it  is  hard  for  me  to  conceive,  that  a  court  could  justify  the  exer- 
cise of  an  alleged  power  by  the  Legislature  because  a  Legislature  had  violated  its 
duty;  and  yet  that  was  the  only  basis  of  the  claim  for  the  power  exercised  by  the 
Pennsylvania  Legislature. 

But  my  friends  on  the  other  side  cannot  stop  there.  They  must  not  only  claim 
that  the  Legislature  has  the  pov/er  to  restrain  and  limit  the  powers  of  a  Constitutional 
Convention,  but  they  must  go  one  step  further,  and  say  that  the  Legislature  can  en- 
large the  powers  of  the  Constitutional  Convention,  in  order  to  keep  themselves  v/ithin 
the  authorities  that  have  been  cited  upon  this  floor.  Gentlemen,  you  have  got  to 
allege,  not  only  that  the  Legislature  can  restrict  and  restrain  us,  but  that  we  are 
such  a  creature  of  its  hands,  that  it  can  give,  as  well  as  take  away,  power.  Upon 
what  theory,  Mr.  President,  do  they  explain  the  action  of  the  Constitutional  Conven- 
tion held  in  this  State  in  1829-'30?  Certain  it  is  that  that  Constitution  was  submitted  to 
an  electorate  different  from  that  which  was  existing  at  the  time  the  Convention 
was  called. 

Mr.  R.  Walton  Moore:  Was  not  that  done  in  pursuance  of  the  act  of  the  Legis- 
lature? 

Mr.  Meredith:    No,  sir;  that  was  the  Convention  of  1850. 

Mr.  R.  Walton  Moore:  You  will  find  that  the  act  of  1827-'28  propounds  a  ques- 
tion and  then  it  provides  for  the  election  of  delegates. 

Mr.  Meredith:  I  am  not  speaking  of  the  time  v/hen  the  Convention  was  author- 
ized to  be  called.  That  is  the  Pennsylvania  doctrine,  that  after  the  Legislature  had 
gotten  the  power  which  the  people  had  given  them,  the  only  source  of  power  in  them 
to  call  a  Constitutional  Convention,  they  can  then  turn  around  and  say  to  its  master: 
"I  will  only  give  it  to  you  to  this  extent." 

Mr.  R.  Walton  Moore:  I  think  my  friend  misunderstands  me.  Is  it  not  a  fact 
that  the  submission  of  the  Constitution  to  the  enlarged  electorate  by  the  Convention 
of  1829-1830  was  in  pursuance  of  the  legislative  act  that  directly  and  distinctly  gave 
that  power,  which  act  was  passed  when  the  election  of  delegates  was  provided  for? 

Mr.  Meredith:  But  that  was  passed  after  the  people  had  said  that  they  wanted 
a  convention  to  revise  and  amend  the  Constitution.  I  am  not  denying  that  fact.  I 
say  that  you  are  driven  to  claim  that  by  reason  of  the  course  of  procedure  in  the 
Convention  of  1829,  the  Legislature  can  enlarge  the  powers  of  a  constitutional  con- 
vention. Don't  you  claim  that?  You  are  forced  to  claim  by  reason  of  the  action  of 
the  Convention  of  1829,-  either  that  that  Convention  did  itself  proclaim  the  suffrage 
article,  or  that  it  had  the  power,  given  it  by  a  dictum  of  the  Legislature,  to  submit 
the  Constitution  to  an  electorate  different  from  that  under  the  then  existing  Consti- 
tution. Am  I  not  right?  Now.  gentlemen,  which  horn  of  that  dilemma  will  you  take? 
I  care  not  vrhich.  I  state  it  again:  By  the  action  of  the  Convention  of  1829,  it  appears, 
either,  that  the  Convention  had  the  power,  in  itself,  to  alter  the  electorate,  or  that  it 
got  that  pov/er  by  reason  of  the  legislative  act.  Upon  which  alternative  will  you 
stand?  I  care  not  which.  If  you  undertake  to  embrace  the  Pennsylvania  idea  of 
legislative  power,  you  must  claim  for  the  Legislature,  not  only  the  power  to  restrict 
and  restrain,  but  power  to  enlarge  and  magnify  the  powers  of  a  constitutional  con- 
vention; that  a  legislature  can  give  v/hat  it  never  possessed;  that  the  creature  can 
give  to  the  creator;  that  the  body  whose  hands  are  tied  can  give  strength  and  might 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIRGIXIA. 


Q     O  1 

o4o± 


to  the  body  ^'ho  stands  free  in  every  limb,  endowed  by  the  people  with  all  power  to 
be  exercised  in  its  behalf. 

:\Ir.  President,  along  what  path  are  we  wandering?  I  assert  that  these  gentle- 
men may  be  willing  to  say  that  the  Legislature  can  do  this  and  the  Legislature  can 
do  that;  but  I  cannot  be  satisfied  with  a  declaration  of  power  in  piecemeal.  I  wish 
to  know  the  full  extent  of  this  power  claimed  for  the  Legislature.  I  want  to  know 
the  principle  by  which  I  am  to  be  guided.  I  am  not  willing  to  take  now  the  decision 
of  one  man  and  to-morrow  the  decision  of  another,  to-day  the  decision  of  one  court 
and  to-morrow  the  decision  of  another.  I  want  some  path  marked  out  for  me,  the 
boundaries  of  which  I  can  see. 

Mr.  R.  Walton  Moore:  Ywll  you  please  state  how,  under  the  existing  Constitu- 
tion in  Virginia,  a  Constitutional  Conyention  could  be  brought  about  and  provision 
made  for  submitting  the  new  instrument  to  the  people  for  ratification  or  rejection? 

:\Ir.  Meredith:  I  propose  to  explain  that,  v\'hen  I  discuss  the  language  of  the 
present  Constitution.  I  desire  now  to  discuss  this  question  upon  general  principles, 
and  then  I  will  take  up  the  question  of  powers  under  the  present  Constitution. 

I  have  said,  Mr.  President,  that  these  gentlemen  are  willing  to  say,  that  this 
power  and  that  power  is  in  the  Legislature — this  power  to  restrain  and  this  power 
of  enlargement;  but  that  we  ought  not  to  be  satisfied  with  such  statements.  Particu- 
lar instances  do  not  furnish  general  principles.  A  body,  such  as  th's  is,  a  great  body 
of  the  people,  called  to  create  its  organic  law,  ought  to  know  hj  what  fetters  we  are 
bound,  as  well  as  what  powers  v.'e  have  the  right  to  exercise;  and  vre  can  only  know 
it  when  we  are  told  accurately  to  what  extent  the  Legislature  can  go. 

I  call  upon  my  friend  from  Norfolk,  who  v\-ill  follow  me,  to  tell  us  exactly  what  is 
the  limit  to  this  power,  which  he  claims  for  the  Legislature.  Sir,  he  indicated  this 
morning  how  broad  he  considered  that  power,  when  he  offered  the  resolution  which 
said  that  this  Convention  did  not  even  have  the  power  to  ask  directly  for  the  appro- 
bation of  the  people  upon  this  Constitution;  but  that  it  had  to  send  it  to  the  Legis- 
lature for  the  Legislature  to  submit  it.  Step  by  step  the  old  doctrine  Is  being  taken 
away  from  us.  Encroachment  is  being  allov\'ed  to  take  place  upon  the  power  of  the 
people. 

Mr.  President,  the  height  of  usurpation  was  never  reached  at  one  step.  What 
i?  the  utmost  height  in  the  opinion  of  one  man  is  but  the  first  stepping-stone  to  an- 
other man,  more  ambitious  or  more  tyrannical.  Gradually  it  comes,  step  by  step — 
not  in  some  shocking  tornado — not  in  some  violent  eruption  destroying  the  people 
at  one  fell  blast,  but  by  insiduous  creeping  until  at  last  the  foundations  are  sapped. 
It  began,  at  first,  with  the  doctrine  that  you  cotild  limit  it  as  to  whether  it  could  inter- 
fere with  the  Bill  of  Rights;  secondlrr,  as  to  the  manner  of  submission  to  the  people, 
and  then  it  comes  to  the  point,  that  you  have  no  power  as  to  what  electorate  3^ou 
shall  submit,  but  that  the  Legislature  shall  determine  that.  One  other  step  comes, 
which  says  that  you  shall  not  submit  it  at  all,  but  shall  return  it  to  the  Legislature, 
who  will  have,  as  claimed,  power  to  do  with  it  as  it  may  see  fit. 

Sir,  my  Lady  Bountiful  might  not  be  gracious  to  the  people,  but  might  smother 
the  nev\--born  infant.  Sir,  is  there  any  greater  instance  of  the  danger  of  insiduous 
and  gradual  encroachment,  upon  the  power  of  the  people  than  the  doctrine  advo- 
cated by  those,  who  deny  the  right  to  proclaim. 

I  stop  here  to  say  that  no  man  has  the  right  to  claim  that  he  is  maintaining  the 
rights  of  the  people,  as  do  those,  who  have  spoken  for  submission.  Upon  one  side  of 
their  banner  they  have  written:  "The  rights  of  the  people."  But  if  you  turn  it  you 
will  find  on  the  other  side:  ''Subject  to  legislative  restrictions."  Gentlemen,  put  your 
entire  battle-cry  upon  one  side,  and  let  us  fight  it  out  upon  the  full  issue.  Do  not 
undertake  to  flaunt  your  banner  to  the  breeze,  as  if  it  was  simply  for  the  "Rights 
of  the  people,"  when  there  is  hidden  behind  it  a  danger  far  greater  than  ever  existed 
in  a  Constitutional  Convention. 

Mr.  President,  I  am  departing  a  little  from  the  line  of  argument  I  started  to  pur- 


3232  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

sue.  These  gentlemen  must  take  one  horn  or  the  other  of  the  dilemma,  presented  by 
the  action  of  the  Convention  of  1829.  They  must  either  admit  that  that  Convention 
had  the  power  of  itself  to  proclaim,  or  they  must  admit  that  the  Legislature  had  the 
right  to  say  to  what  electorate  that  Constitution  should  be  submitted — the  one  or  the 
other.  Surely  you  are  not  prepared  to  say  that  the  Convention  had  the  power  to 
determine  the  electorate  itself.  If  you  do,  you  give  your  whole  contention  away.  No 
man  of  any  prudence  will  stand  in  a  body  of  men  like  this,  and  undertake  to  say  to 
them  that  a  Convention  can  submit  one  part  of  a  Constitution,  but  cannot  submit 
any  other  part.  We  know  that  the  right  of  suflrage  has  been  declared  to  be  the  right 
preservative  of  all  rights.  We  know  that  there  is  nothing  about  which  the  people 
are  more  sensitive.  If  you  once  admit  that  a  Constitutional  Convention  has  the  power 
to  proclaim  the  article  upon  suffrage,  surely,  you  will  not  deny  that  it  has  the  right 
to  proclaim  the  article  upon  taxation  and  things  of  minor  importance.  So  you  are 
driven  to  claim  what?  To  claim  that  the  Convention  of  1829,  derived  the  power  to 
submit  the  Constitution  to  an  altered  electorate,  from  the  act  of  the  General  Assembly 
authorizing  the  election  of  its  delegates.  How  will  you  justify  such  a  position?  You 
may  claim  it  in  the  extremity  of  your  position,  but  I  ask  you  to  name  any  man  who 
would  justify  such  a  contention.  I  do  not  mean  Mr.  Jameson's,  but  I  mean,  of  those 
great  men  who  composed  that  great  body.  Which  one  of  them  ever  intimated  that 
the  act  was  valid  or  ever  suggested  that  the  act  was  binding  upon  the  Constitutional 
Convention?  Which  one  of  them  ever  thought,  for  one  moment,  that  the  act  gave 
that  Constitutional  Convention  one  iota  of  power?  There  were  but  few  who  spoke 
upon  the  subject,  so  far  as  we  have  the  records  in  the  present  abridged  form.  You 
recall  that  John  Randolph  of  Roanoke  opened  the  debate,  and  insisted  that  the  Con- 
stitution had  to  be  submitted  to  the  then  electorate.  You  will  recall  that  Mr.  Thomp- 
son followed  him,  and  stated  clearly  and  distinctly  his  views  as  to  that  act.  He  de- 
clared it  a  work  of  supererogation.  What  did  he  mean?  That  it  was  a  needless  work. 
Why?  Because  the  Convention  had  the  power  of  itself.  That  is  what  he  meant  by 
supererogation.  Are  you,  gentlemen,  at  this  late  date,  to  put  a  construction  upon  the 
statute  under  which  the  Convention  of  1829  acted,  different  from  that  put  upon  it  by 
the  great  men  who  sat  in  that  Convention,  and  discussed  it?  You  know  that  Mr. 
Thompson  declared  it  to  be  a  work  of  supererogation.  You  know  that  Mr.  Mason  said 
the  Legislature  never  intended  to  give  any  such  power.  You  know  that  Chapman 
Johnson  stated  in  substance  that  he  had  said  before,  and  that  he  would  say  again, 
that  he  believed  that  the  act  was  void.  Then,  gentlemen,  where  is  the  justification 
for  the  claim  that  the  procedure  of  the  Convention  of  1829-'30  was  because  the  Legis- 
lature had  the  power  to  pass  an  act  enlarging  the  electorate  at  that  time?  You  do 
not  find  one  word  in  these  books  that  will  justify  it.  You  do  not  find  one  thought  there 
to  intimate  that  this  Convention  recognized  any  such  power  in  the  Legislature.  Sir, 
it  was  too  near  to  the  birth  of  constitutional  freedom.  It  remains  for  our  day  to 
entertain  such  ideas  as  that. 

On  the  other  hand,  you  find  that  even  the  men  who  were  insisting  that  the  Con- 
stitution should  be  submitted  to  the  altered  electorate  based  their  position  upon  the 
grounds  that  we  believe  to  be  the  only  true  ones,  that  the  Convention  had  the  power. 
Instead  of  having  the  support  of  that  Convention  upon  your  proposition,  you  will  find 
that  the  only  men  who  held  the  right  to  submit  the  Constitution  to  that  electorate, 
declaimed  against  the  power  of  the  Legislature  to  confer  it.  Are  you  not,  then,  driven 
to  the  conclusion  that  the  submission  by  the  Convention  of  1829  was  an  act  within 
the  power  of  the  Convention? 

Mr.  Blair:  I  would  like  to  ask  you  whether  you  see  any  difference  between  an 
act  of  the  Legislature  and  an  act  of  a  Constitutional  Convention,  one  conferring  a 
right,  and  the  other  taking  away  a  right;  in  other  words,  when  the  Constitutional 
Convention  of  1829  enlarged  the  electorate  it  conferred  a  right,  but  when  this  Con- 
vention abridges  the  electorate  it  takes  away  a  vested  right? 

Mr.  Meredith:    That  is  a  confusion  of  ideas.    It  arises  from  the  use  of  the  word 


DEBATES  OE  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIRGIXIA.  3233 

"right."  I  am  using  the  word  right  in  the  sense  of  power.  I  am  speaking  of  the 
right  of  the  Legislature,  as  distinguished  from  the  right  of  the  people.  And  therefore 
whether  it  enlarges  or  abridges  the  right  of  the  people  is  not  the  question.  The  ques- 
tion is  whether  the  Legislature  had  the  power — that  is  the  word  I  should  have  used, 
and  I  would  not  have  misled  you. 

We  see  that  these  gentlemen  have  been  driven  to  maintain  two  propositions. 
First,  that  this  Convention  is  one  of  limited  powers,  and  that  it  does  not  represent 
the  people  in  their  sovereignty;  and,  second,  that  the  Legislature  can  restrict,  limit, 
enlarge,  abridge  and  extend  its  powers. 

Mr.  President,  I  expect  there  are  others  who  will  find  themselves  very  much  at 
sea  as  to  what  would  be  their  position,  if  it  be  true  that  the  Legislature  has  the 
right  to  confer  these  powers.  Surely,  we  will  not  give  up  that  which  has  been  taught 
us  as  a  general  principle,  that  power  comes  from  the  people,  that  the  members  of 
the  Convention  are  delegates  of  the  people,  and  as  such,  clothed  with  the  powers  of 
the  people. 

To  admit  the  theory  that  the  Legislature  can  also  give  and  take  away  our  powers, 
puts  us  in  the  position  advised  against  in  the  Bible,  that  "a  man  cannot  serve  two 
masters."  Let  us  recognize,  one  or  the  other.  I  prefer  the  people;  but  for  the  future 
guidance  do  not  let  us  use  this  confusing  and  contradictory  idea  that  we  get  power 
from  one  source,  and  also  get  it  from  another.  Let  us  have  it  defined  so  that  we 
will  know  our  future  rights. 

I  have  sho^m,  Mr=  President,,  that  the  Convention  of  1829-'30  does  not  support  the 
claim  that  has  been  made  upon  this  floor,  that  the  Legislature  has  the  right  to  give 
any  power  to  a  Constitutional  Convention. 

Are  there  authorities  needed  upon  such  a  subject  as  that?  Is  it  possible  that 
with  our  ideas  of  the  power  of  the  Legislature  that  we  can  need  any  authority  to 
show  that  the  Legislature  cannot  restrain  or  restrict  the  powers  of  a  Constitutional 
Convention?  I  know  that  my  friend  who  will  follow  me  in  this  debate  will  claim  that 
w^hen  I  assert  this  Convention  has  the  full  power  of  the  people,  that  I  must  point  to 
express  authoritj^  for  that  claim.  I  have  an  equal  right  to  ask  him  v^'hen  he  an- 
nounces that  fact,  as  he  must,  that  the  Legislature  has  the  right  to  restrict  or  to  en- 
large the  powers  of  a  Constitutional  Convention  called  by  the  people,  that  he  should 
put  his  hand  upon  the  authorities  that  would  justifj^  such  a  proposition.  Surely,  we 
do  not  find  it  in  the  Constitution  of  Virginia.  Surel3%  there  is  not  one  line,  or  one 
word,  or  even  a  suggestion  of  a  court,  outside  of  the  Pennsylvania  decision,  that  the 
Legislature  ever  had  such  a  power.  I  respectfully  submit  that  the  obligation  is  on 
our  opponents  to  show  that  the  Legislature  has  been  given  this  power  expressly, 
rather  than  upon  us  to  prove  our  power  by  showing  an  express  mandate  for  it.  Is 
not  the  Legislature  of  Virginia  prohibited  from  touching  the  Constitution?  Does  not 
our  Constitution  declare  that  it  restrains  and  restricts  the  Legislature?  Does  it  not 
declare  that  no  one  Legislature  that  comes  into  existence  in  the  State  of  Virginia 
shall  even  have  the  power  to  submit  an  amendment  to  the  Constitution,  but  that  it 
shall  take  two  General  Assemblies  to  take  such  a  step?  So  careful  were  the  people 
as  to  legislative  power  that  they  put  into  the  Constitution  a  requirement  that  two 
General  Assemblies  should  speak  before  they  would  even  accept  from  its  hands  the 
suggestion  of  an  amendment. 

Is  it  not  incongruous  that  a  body  without  power  can  be  more  powerful  than  the 
body  vrhich  defines  and  limits  its  power?  What  body,  Mr.  President,  can  delegate 
prohibited  powers?  What  principle  of  law  declares  that  a  bodj^  having  been  pro- 
hibited from  altering  or  amending  a  Constitution,  has  the  right  to  delegate  power  to 
a  Constitutional  Convention  to  frame  and  make  a  new  one?  Does  not  such  an  anomaly- 
in  the  law  demand  express  language?  Is  it  not  unnatural?  Is  it  not  unheard  of  as 
to  all  other  matters?  If  so,  have  I  not  the  right  to  say  that  its  anomalous  nature 
demands,  at  the  hands  of  its  friends,  express  authority  in  clear  and  indisputable  lan- 
guage ? 


3234  DEBATES  OF  THE  CONSTITUTIOJTAL  CONVENTION  OF  VIRGINIA. 

The  power  of  the  Legislature,  Mr.  President,  is  confined  to  statute  law.  It  has 
no  power  beyond  that.  One  of  the  needs,  one  of  the  great  needs  of  a  Constitution  is 
to  restrain  the  Legislature.  Otherwise  it  would  be  like  the  English  Parliament,  with- 
out restraint  except  by  general  and  unwritten  principles.  But  we  do  not  desire  that 
our  legislative  body  should  have  such  power,  and  we  have  made  these  Constitutions 
more  for  the  purpose  of  restraining,  controlling,  and  prohibiting  the  Legislative  action. 

Imagine,  Mr.  President,  a  Constitutional  Convention  called  into  being  at  the  de- 
mand of  the  people,  and  yet  when  it  gets  here  it  finds  its  hands  tied  by  legislative 
restrictions.  Would  such  a  body  represent  the  people?  Could  such  a  body  be  claimed 
to  be  representing  the  people  in  their  sovereign  power,  for  the  purpose  of  amending 
and  revising  the  v/hole  Constitution,  if  the  Legislature  has  the  right  to  say  that  you 
shall  not  touch  this  provision  of  it,  or  that  provision  of  it?  Sir,  the  power  to  limit, 
as  was  said  by  Chief  Justice  Marshall,  carries  within  it  the  power  to  destroy. 

I  do  not  believe,  Mr.  President,  that  the  Legislature  can  have  such  a  power  to  re- 
strain a  Constitutional  Convention,  because  it  would  be  power  grov/ing  out  of  weak- 
ness, might  out  of  nothingness,  sovereign  power  out  of  constitutional  imbecility.  Since 
the  Legislature  is  prohibited  from  touching  the  Constitution,  it  has  no  power  over  it, 
and  yet,  suddenly,  when  a  Constitutional  Convention  is  called,  it  is  claimed  to  suddenly 
spring  into  power,  as  if  it  had  been  released  from  all  restraint,  and  given  authority 
to  restrain  the  Convention.  I  submit,  Mr.  President,  that  whatever  restraint  there 
be  upon  us,  whatever  limitation  there  may  be,  however  small  our  powers  may  be,  our 
power  does  not  come  from  the  Legislature,  but  it  must  come  from  some  other  source. 
I  have  explained,  as  far  as  I  was  able,  the  case  upon  which  these  gentlemen  depend 
for  the  doctrine  that  they  are  so  earnestly  advocating,  the  Pennsylvania  case.  I 
have  shown  you  the  history  of  that  case.  I  have  shown  you,  as  far  as  I  am  able,  the 
reasons  upon  which  it  was  based.  I  now  respectfully  submit,  that  if  you  will  give 
them  due  consideration,  you  will  refuse  and  reject  them  as  absolutely  antagonistic  to 
your  views  as  to  the  power  of  the  people,  and  as  to  the  festriction  of  power  put  upon 
the  Legislature.  I  do  not  believe  that  we  could  ever  get  the  Supreme  Court  of  this 
State  to  tie  itself  to  a  doctrine  that  is  so  abhorrent  to  all  of  the  views  and  ideas  of 
the  people  of  Virginia.  To  my  mind,  this  idea  of  danger  from  the  courts  is  one  that 
we  ought  to  give  the  least  consideration  to,  if  we  are  able  to  satisfy  ourselves  that 
we  are  right.  The  doctrine  that  has  been  announced  here  by  these  gentlemen  is  one 
that  is  contradictory  to  the  beliefs  of  the  Virginia  people,  to  their  history,  their  teach- 
ings, their  conduct,  and  their  Constitutions. 

I  come,  then,  to  insist  that,  if  the  theory  of  implied  power  in  the  Legislature  is  in- 
defensible, then  history,  precedents,  and  the  decisions  show  that  the  members  of  a 
Constitutional  Convention,  authorized  to  be  called  by  unrestricted  language,  are  the 
people,  present  in  the  persons  of  their  representatives.  My  position  is  that  there  can 
be  no  justification  for  the  doctrine  of  implied  powers  in  the  Legislature  to  restrain 
and  restrict  a  Constitutional  Convention;  that  history,  precedents,  and  the  decisions 
all  hold  that  when  a  Constitutional  Convention  is  called  without  express  restrictions 
upon  it,  it  comes  clothed  with  all  the  power  of  the  people.  I  hold  that,  if  the  call  of 
the  people  is  silent  as  to  what  shall  be  the  powers  to  be  exercised  by  that  Constitu- 
tional Convention,  and  simply  authorizes  them  to  amend  and  revise  the  Constitution, 
that  language  gives  them  all  the  power  that  the  people  would  have. 

Mr.  Thorn:  Do  I  understand  my  friend  that  this  would  not  be  dependent  upon  the 
constitutional  provision,  but  that  if  there  was  no  constitutional  provision  the  power 
would  still  exist  in  a  convention,  called  under  the  act  of  a  General  Assembly? 

Mr.  Meredith:  I  claim  this  to  be  the  nature  of  a  Constitutional  Convention — 
that  if  it  is  called  by  the  people,  without  language  restricting  it  at  the  time  the  Con- 
vention was  authorized,  it  comes  clothed  with  all  the  power  of  the  people,  no  matter 
whether  it  is  called  under  constitutional  authority  or  legislative  enactment.  I  do  not 
contend,  Mr.  President,  that  the  people  cannot  limit  this  power.  I  hold  that  they  can. 
T  hold  that  the  people  have  the  right  to  say  to  a  Constitutional  Convention,  at  the 


DEBATES  OE  THE  COXSTIIUTIOXAL  COXVEVTIOX  OE  VIBGIXIA. 


3235 


proper  time:  •■Thus  far  you  may  go  and  no  farther,"  that  ■•!  will  give  you  this  power, 
but  you  shall  not  have  that."  I  believe  in  the  power  of  the  people  to  restrain;  but  it 
must  be  by  the  express  language  of  the  people,  and  under  circumstances  allowing 
them  specifically  to  express  themselves.  It  must  be  like  the  act  of  1S49,  where  the 
Legislature  submitted  to  the  people  the  question  as  to  whether  a  convention  should  be 
called,,  and  to  draft  a  Constitution,  and  to  submit  the  same  to  the  people  for  accept- 
ance or  rejection. 

It  was  expressed  at  the  time  when  the  people  were  called  upon  to  say  whether 
they  wanted  a  Constitutional  Convention.  It  was  said  at  the  time  when  the  people 
w^ere  to  decide  the  question  as  to  the  expediency  of  a  Constitutional  Convention.  They 
had  the  right,  at  that  time,  to  say:  We  will  call  you  into  assembly;  but  we  call  you 
with  the  distinct  understanding  that  you  are  to  come  here  with  this  restriction,  and 
this  limitation  put  upon  you — that  you  must  refer  it  back  to  us.  I  say  the  people 
have  that  power,  but  I  say  it  must  be  exercised  at  the  proper  time.  It  must  be  exer- 
cised at  the  time  the  people  express  their  views  as  to  the  necessity  for  a  Constitu- 
tional Convention,  at  the  time  they  declare  what  kind  of  convention  they  wish  to  be 
called,  and  that  it  cannot  be  afterwards  put  upon  the  convention  by  any  power. 

Mr.  President,  I  understand  from  the  debate  here,  and  from  the  language  of  the 
Pennsylvania  decision,  that  it  is  insisted  that  if  the  convention  did  claim  the  right 
to  proclaim  or  ordain  the  Constitution,  it  must  show  express  authority.  I  understand 
that  to  be  the  doctrine  of  the  Pennsylvania  decision.  I  understand  it  to  be  the  doc- 
trine of  those  gentlemen  who  have  argued  for  submission.  Is  that  true?  If  it  can  be 
shown  that  it  is  virtually  universally  recognized,  that  when  a  convention  is  called 
without  restriction,  it  has  the  power  of  the  people,  then  it  must  be  admitted  that  I 
nped  not  show  express  authority. 

If  it  is  recognized  by  authority,  by  precedent,  by  history,  and  by  Constitutional 
Conventions,  that  when  a  convention  is  called  without  express  limitation  or  restric- 
tion put  tipon  it  by  the  people,  it  then  has  that  power,  I  submit  that  there  can  be 
no  burden  upon  us  to  show  any  power  by  express  language:  but  that  the  burden  is 
transferred  to  those  gentlemen  opposing  us.  and  that  they  must  show  express  limita- 
tion, in  order  for  us  not  to  have  that  power.  I  want  to  make  that  idea  clear.  I  say 
that  if  it  be  generally  recognized  that  a  Constitutional  Convention,  called  without  ex- 
press restrictions  put  upon  it  by  the  people,  comes  naturally  clothed  with  sovereign 
powers,  then  there  is  no  necessity  for  me  to  shovs-  any  express  atithority  in  this  con- 
vention; but,  on  the  other  hand,  that  the  burden  is  shifted  to  the  other  side  to  show 
that  there  has  been  an  express  restriction.  I  think  that  proposition  a  fair  one  to  both 
sides. 

When  I  say  '■recognized,''  ^.Iv.  President.  I  do  not  mean  to  refer  to  sreculative 
writers,  with  a  good  or  with  a  bad  object;  whether  they  had  the  reputation  of  Mr. 
Jameson,  who  is  spoken  of  in  the  report  of  the  Judiciary  Committee  of  the  Xew  York 
Constitutional  Convention  as  a  man  who  wrote  his  book  "with  an  object,"  and  who  has 
been  denounced  on  this  floor  as  a  man  who  wrote  it  with  an  evil  object.  I  care  not 
whether  his  object  is  good  or  bad.  When  I  say  recognized.  I  do  not  mean  hy  specti- 
lative  theorists,  but  I  mean  recognized  by  court  decisions,  recognized  by  historic  prece- 
dents, recognized  by  the  statements,  beliefs,  and  doctrines  held  by  those  men  from 
whose  brains  constitutions  sprung. 

Sir,  I  have  said  that  this  question  is  more  of  a  governmental  than  a  legal  one. 
and  that  it  must  depend  for  its  solution,  not  upon  the  construction  that  a  court  may 
arbitrarily  put  upon  it,  because  it  believes  so  and  so. 

It  is  a  governmental  question,  a  question  of  fact,  which  depends  on  historic  prece- 
dence alone,  and  its  truth  or  its  error  can  only  be  determined  by  the  facts  of  history. 
If  any  court  from  Pennsylvania  or  elsewhere  undertook  to  declare  as  to  what  was 
meant  by  the  people  in  the  call  of  the  Constitutional  Convention  without  recognizing 
the  history  of  the  past.  I  submit  that  there  would  be  a  failure  of  duty  in  not  recog- 
nizing the  only  source  of  truth  upon  the  question. 


3236  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

In  order  then,  Mr.  President,  to  show  that  a  Constitutional  Convenfion  has,  in- 
herently or  naturally  these  powers,  as  soon  as  created,  unless  it  is  expressly  re- 
stricted, I  will  try  to  ascertain  what  is  the  nature  of  a  constitutional  convention. 
Bear  with  me  if  I  undertake  to  trace  the  history  of  them.  The  magnitude  of  the  ques- 
tion justifies  any  length  of  time  that  you  may  devote  to  it.  In  looking  at  the  history 
of  a  matter  of  that  kind  is  it  prudent  or  fair,  to  take  modern  text  writers,  or  shall  we 
go  back  to  the  sources  of  constitutional  government?  Is  it  not  wiser  that  we  should 
go  back  to  the  language  of  those  who  created  constitutions,  than  to  take  the  lan- 
guage of  theorizers  of  the  present  day,  who  wrote  with  or  without  a  good  purpose, 
biased  one  way  or  the  other,  and  declare  from  them  what  is  the  purpose  and  power 
of  a  Constitutional  Convention?  I  prefer,  sir,  the  other  course.  I  prefer  to  go  back 
and  trace,  as  far  as  I  can,  what  were  the  original  ideas,  how  they  have  been  modified, 
to  what  extent  have  they  been  adopted,  how  they  have  been  recognized  by  our  State. 
If  I  can  satisfy  myself  that  I  stand  with  the  fathers  of  this  Republic,  I  prefer  to  be 
v\'ith  them  along  the  lines  of  constitutional  liberty  than  to  follow  the  dictates  of  any 
speculative  writer  of  a  modern  text-book.  Now,  Mr.  President,  I  call  your  attention 
to  the  case  of  Kamper  vs.  Hawkins,  which  was  referred  to  by  the  gentleman  from 
Frederick;  but  I  respectfully  submit  that  it  was  referred  to  by  him  with  unfortunate 
failure  to  present  it  in  its  fullness.  This  case,  Mr.  President,  was  decided  in  1792. 
The  first  Constitutional  Convention  of  this  Union  practically  sprang  into  existence  on 
this  soil  in  1776.  The  language  and  the  voices  of  the  judges  who  decided  this  case 
were  so  close  to  the  first  Virginia  Constitutional  Convention  that  they  may  be  almost 
claimed  to  be  the'  echoes  of  the  Convention  itself.  So  closely  connected  with  it  in 
point  of  time  that  they  could  fully  appreciate  the  views  of  the  men  who  made  that 
Constitution,  and  could  speak  with  authority  in  describing  its  powers.  Surely,  they 
speak  with  higher  authority  than  any  modern  writer,  because  they  spoke  near  the 
very  birth  of  constitutional  liberty.  I  know,  Mr.  President,  what  has  been  said,  and 
the  idea  comes  from  this  text  writer,  Mr.  Jameson,  that  we  must  discard  these  old 
Constitutions;  that  they  were  made  in  times  of  excitement;  that  they  were  the  out- 
bursts of  popular  agitation;  that  the  people  did  not  have  time  for  thought,  and  they 
had  to  accept  what  they  could  get;  that  they  took  them  without  undertaking  to  ascer- 
tain what  were  the  rights  and  powers  of  the  body  that  framed  them.  Sir,  the  mem- 
ber who  is  acquainted  with  the  history  of  his  own  State,  v/ill  find  that  that  is  not  true 
as  to  Virginia.  We  know  that  there  had  been  a  convention  in  this  State  as  early  as 
1774,  when  there  was  an  English  Governor  sitting  at  Williamsburg,  shortly  after  he 
dissolved  the  Plouse  of  Burgesses,  because  it  passed  resolutions  in  regard  to  the 
power  of  England  to  tax.  There  was  then  called  a  convention  of  the  people  of  this 
State,  which  met  in  1774,  and  they  appointed  one  of  its  members,  with  power  to  call 
that  convention  into  existence  whenever  he  saw  fit.  We  know  that  there  was  a  sub- 
sequent convention  held  in  1775,  just  before  the  time  that  Lord  Dunmore  left  Wil- 
liamsburg to  take  refuge  on  board  of  a  man-of-war.  We  know  that  fighting  in  this 
State  began  as  early  as  the  fall  of  1775,  and  that  there  was  hardly  a  foot  of  soil  in 
this  State  that  was  occupied  by  British  soldiery,  except  the  extreme  eastern  portion 
of  it.  Virginia  vv^as  in  the  hands  of  her  own  people.  She  had  two  conventions  before 
that  of  May,  1776.  Therefore,  I  submit,  no  man  can  explain  away  the  weight  of  this 
precedent  upon  the  theory  of  haste  as  to  this  one.  It  was  not  born  prematurely.  It 
was  born  after  due  and  intelligent  consideration,  and  was  accepted  with  full  confi- 
dence, because  it  met  the  will  of  the  people.  Mr.  President,  this  idea  of  casting  aside 
the  precedents  of  1776,  upon  the  theory  of  haste,  is  one  of  the  main  arguments  sug- 
gested by  these  modern  text  writers.  Let  us  see  what  is  the  description  of  a  Consti- 
tutional Convention  given  by  Virginia  judges  as  early  as  1792.  I  ask  you  once  more 
to  let  me  stop  and  say  that,  in  this  case,  there  was  no  question,  as  the  gentleman 
from  Frederick  seemed  to  think,  as  to  whether  the  promulgation  of  the  Constitution 
by  the  Convention  was  within  its  powers.    No  such  question  as  that  was  ever  raised. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


3237 


The  only  question  in  the  case  was  whether  the  third  convention,  which  met  in  1776, 
was  an  ordinary  Legislature,  or  vchether  it  was  called  with  the  power  to  be  a  Consti- 
tutional Convention.    That  is  the  only  question  in  this  case. 

Mr.  President,  the  statement,  to  which  reference  has  been  made,  that  Thomas  Jef- 
ferson held  that  a  Constitutional  Convention  cannot  proclaim  a  Constitution,  is  an 
error.  All  that  Mr.  Jefferson  claimed  was  that  the  Constitution  of  1776  could  not  be 
regarded  as  a  Constitution,  because  it  was  enacted  by  a  body  of  the  nature  of  a  legis- 
lative assembly,  and  not  by  a  Constitutional  Convention.  That  is  the  extent  to  which 
he  ever  went,  and  that  is  the  extent  of  the  question  in  this  case.  Now,  what  is  the 
language  of  the  Virginia  judges  who  stood  at  the  cradle  of  constitutional  governments 
in  this  State?  Let  us  see  v-hat  they  regarded  as  the  powers  of  a  Constitutional  Con- 
vention. 

Judge  Roane  said: 

But  admitting  for  a  moment  that  the  old  government  was  not  then  at  an  end,  I 
assert  that  the  people  have  a  right,  by  a  convention  or  otherwise,  to  change  the  ex- 
isting government,  while  such  existing  government  is  in  actual  operation  for  the  ordi- 
nary purposes  thereof. 

This  Convention  was  not  chosen  under  the  sanction  of  a  former  government;  it 
was  not  limited  in  its  powers  by  it,  if  indeed  it  existed;  but  may  be  considered  as  a 
spontaneous  assemblage  of  the  people  of  Virginia,  under  a  recommendation  of  a 
former  convention,  to  consult  for  the  good  of  themselves  and  their  posterity. 

That  is  the  .description  given  by  Judge  Roane  of  a  Constitutional  Convention.  I 
now.  ask  your  consideration  of  the  language  of  Judge  Henry: 

The  deputies  seem  to  have  been  complete  representatives  of  the  people,  and 
vested  with  the  most  imlimited  authority.   *  *  * 

The  people  in  convention  have  ordered  that  a  Legislature  shall  be  chosen,  a  Gov- 
ernor and  Council  shall  be  chosen,  judges  shall  be  appointed — all  these  different  char- 
acters are  servants  of  the  people,  have  different  duties,  and  are  amenable  to  them. 

Let  me  also  read  to  you  the  language  of  Judge  Tyler: 

Vhat  power  had  the  people,  therefore,  that  was  not  confided  to  their  representa- 
tives? All  their  rights,  all  their  power,  all  their  happiness,  all  their  hopes  and  pros- 
pects of  success,  were  most  indubitably  entrusted  to  their  care. 

Where  can  I  get  stronger  language  than  I  have  read  to  3'ou?  The  men  who  ex- 
pressed those  views  ought  to  know  what  they  are  speaking  of. 

Let  me  read  to  you  from  the  same  case  the  language  of  Judge  Tucker: 

The  Convention  then  was  not  the  ordinary  Legislature  of  Virginia,  it  was  the 
body  of  the  people,  impelled  to  assemble  from  a  sense  of  common  danger,  consulting 
for  the  common  good,  and  acting  in  all  things  for  the  common  safety. 

Thus  you  see  that  wherever  you  put  your  hand  upon  an  expression  of  opinion  by 
one  of  those  who  created  the  Constitutions  of  the  early  days  you  have  a  declaration 
that  a  convention  is  an  assemblage  of  the  people  in  the  person  of  their  representa- 
tives, and  that  the  people  entrust  to  it  all  their  power. 

That  they  came  with  unlimited  authority  is  the  language  of  construction,  almost 
contemporaneous  with  the  Convention.  It  is  simply  the  expression  of  the  same  idea 
in  different  words,  but  all  recognize  the  Convention  as  being  an  assemblage  of  the 
people. 

Sir,  if  you  will  let  me  step  outside  of  our  own  State.  I  will  read  you  the  language 
of  some  of  the  great  men  of  other  States. 

In  the  New  York  Convention  of  1S21,  Mr.  Livingstone  said: 


3238  DEBATES  OF  THE  CONSTITUTIOXAL  CONVENTION  OF  VIKGINIA. 

They  are  here  themselves,  they  are  here  by  their  delegates.  No  restriction  limits 
our  proceedings.    We  are  standing  upon  the  foundations  of  society. 

In  1836  George  M.  Dallas,  a  Vice-President  of  the  United  States,  declared  a  Con- 
stitutional Convention  to  be: 

The  provided  machinery  for  peaceful  revolution.  When  ours  shall  assemble  it 
will  possess,  within  the  territory  of  Pennsylvania,  every  attribute  of  absolute  sover- 
eignty, except  such  as  may  have  been  jaelded  and  are  embraced  in  the  Constitution  of 
the  United  States.  What  may  it  not  do?  It  may  reorganize  our  entire  system  of 
social  existence,  terminating  and  prescribing  what  is  deemed  injurious  and  establish- 
ing what  is  preferred. 

In  the  Illinois  Convention  of  1847  Mr.  Peter  said: 

We  are  the  sovereignty  of  the  State.  We  are  what  the  people  of  the  State  would 
be,  if  they  were  congregated  in  our  stead. 

Are  these  unanimous  views  to  be  cast  aside  for  modern  thought  because  a  text- 
writer  and  a  texv  judges  wish  to  take  from  the  people  the  power  that  they  have  in 
every  Constitutional  Assemblj^  and  to  put  it,  as  Mr.  Jameson,  the  pioneer  of  this  mod- 
ern idea,  wants  to  put  it,  in  the  Legislature.  These  are  the  unanimous  expressions  of 
men  who  built  Constitutions.  I  ask  for  some  reason  why  we  should  discard  them — or 
some  reason  why  we  should  be  forced  to  give  them  up.  Show  me  a  greater  danger  in 
such  power  being  in  a  Constitutional  Convention,  than  would  be  in  those  claimed  ,  for 
the  Legislature,  and  I  v/ill  agree  with  you. 

On  the  other  hand,  if  a  Legislature  can  restrain  a  Constitutional  Convention,  then 
by  delay,  long  drawn  out  and  other  devices,  it  can  defeat  its  v/ork.  If  we  do  VN^hat  has 
been  suggested  by  the  gentleman  from  Norfolk,  turn  over  this  Constitution  to  the  Legis- 
lature of  Virginia,  we  will  put  it  in  the  power  of  the  Legislature  to  say  it  will  not  submit 
our  work  to  the  people.  Who  can  tell  then  what  they  will  do?  It  may  remain  a  mere 
broken  promise  to  the  people. 

Mr.  President,  the  man  who  asks  us  to  give  up  the  view  so  clearly  expressed  in 
the  opinions  I  have  just  read,  views  so  patriotic  and  high  as  to  the  rights  of  the  people, 
should  offer  strong  reason  for  the  request.  Are  we,  sir,  justified  in  throwing  aside  these 
early  expressions  and  views? 

I  call  your  attention  to  the  fact  that  it  v/ill  not  do  to  say  these  Constitutions  were 
first  promulgated  in  the  early  period  of  our  revolutionary  history.  South  Carolina  pro- 
claimed her  Constitution  in  1790.  There  was  no  revolutionary  war  then.  Her  first 
Constitution  had  been  rejected  by  the  Supreme  Court  of  that  State  upon  the  ground 
that  the  body  which  passed  it  was  not  a  Constitutional  Convention.  A  Constitutional 
Convention  was  called,  it  proclaimed  the  Constitution,  and  it  was  accepted.  In  1792 
and  as  late  as  1831  Delaware  spoke  along  the  same  lines  that  these  old  fathers  spoke; 
Tennessee  in  1796;  Indiana  in  1816.  Sir,  I  do  not  know  where  the  era  of  modern  thought 
begins.  Tell  me  what  year  marks  it.  When  shall  I  say  I  v/ill  accept  this  thought  be- 
cause it  belongs  to  modern  times,  and  reject  that  because  it  is  ancient.  Indiana  pro- 
mulgated her  Constitution  in  1816,  Missouri  in  1820,  New  York  in  1801.  Not  in  haste- 
not  in  revolution — there  v/as  no  emergency,  but  it  was  simply  an  exercise  in  times  of 
peace  of  the  power  admitted  to  be  possessed  at  the  time.  Georgia  in  1798,  Ohio  in  1802, 
Illinois  in  1818,  Arkansas  in  1836— surely,  we  are  stepping  near  to  the  boundary  of  mod- 
ern times.  Pennsylvania  in  1790,  Kentucky  in  1792  and  1799,  Louisiana  in  1812,  Ala- 
bama in  1819,  Florida  in  1839. 

Is  nothing  modern  that  occurs  before  the  Civil  War?  I  presume  not,  because  the 
gentleman  from  Wythe,  who  discussed  this  question  a  day  or  two  ago,  cast  aside  the 
Secession  Conventions  of  the  Southern  States  as  though  they  were  unworthy  of  con- 
sideration. Will  the  gentleman  who  will  follow  me  adopt  such  a  line  of  evasion  as 
that? 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  VIEGIXIA. 


Sir,  Avere  not  those  conventions  called  by  as  high  a  class  of  men  as  ever  lived  in 
any  portion  of  our  country?  Did  they  not  know  constitutional  law  as  well  as  we  do? 
Were  they  not  moved  by  as  high  and  patriotic  motives  as  3'ou  and  I?  Did  they  not 
feel  that  the  question  before  them  was  one  of  the  most  momentous  that  had  ever  been 
presented  to  the  consideration  of  a  body  of  men — certainly  as  momentous  as  the  one 
you  are  noxv  deciding? 

Mr.  R.  Walton  Moore:  The  gentleman  has  cited  a  great  many  cases  in  which  Con- 
stitutions have  been  proclaimed.  I  want  to  ask  him  if,  in  any  one  of  those  cases,  the 
proclamation  was  in  disregard  of  a  legislative  act,  or  if  there  Vvas  a  legislative  act  in 
any  of  those  cases  providing  for  proclamation? 

Mr.  Meredith:  So  far  as  I  recall,  it  is  possible  that  some  of  them  were  in  contra- 
vention of  the  act  of  Congress  which  declared  that  Constitutions  should  be  submitted, 
but  I  am  not  certain  about  that,  and  I  will  not  assert  it.  I  will  simply  say  that  I  have 
come  across  none  that  acted  in  contravention  of  a  legislative  act. 

Mr.  R.  Walton  Moore:  Can  you  cite  a  single  case  in  which  a  legislative  act  pro- 
vided for  submission  and  was  disregarded? 

Mr.  Meredith:  I  can  recall  one  in  this  State,  a  little  before  your  time,  when  a 
man  stood  upon  the  floor  of  a  Constitutional  Convention  of  this  State,  and  said  that  an 
act  of  the  Legislature  undertaking  to  give  power  to  a  Constitutional  Convention  was 
supererogatory.    I  refer  to  Mr.  Thompson  in  the  Convention  of  1829. 

Mr.  R.  Walton  Moore:  Is  that  not  begging  the  question?  Did  not  that  very  Con- 
vention follow  the  language  of  that  act  and  comply  with  its  provisions? 

Mr.  Meredith:  Certainly;  because  it  had  the  power  in  itself.  After  declaring  that 
the  act  was  supererogatory,  it  followed  the  line  suggested  by  the  act,  and  did  what  it 
wanted  to  do,  because  it  claimed  the  power  to  do  it,  of  itself.  That,  sir,  is  a  better 
precedent  than  I  could  get  from  other  States.    I  prefer  the  teachings  of  our  own  people. 

Mr.  R.  Walton  Moore:  Was  there  a  resolution  in  that  Convention  declaring  that 
the  act  of  the  Legislature  was  surplusage? 

Mr.  ]\ieredith:  You  are  as  familiar  with  that  ConstitutionaL  Convention  as  I  am. 
There  was  no  such  resolution. 

Mr.  President,  I  was  discussing  the  fact,  that  it  had  been  said  here  that  the  seces- 
sion conventions  are  to  be  disregarded.  The  members  of  those  conventions  were  able 
and  patriotic  men.  They  were  doing  a  great  work,  having  a  momentous  question  to 
settle.  If  they  v/ere,  why  should  they  be  disregarded,  cast  aside,  as  of  no  weight?  Is 
It  because  of  the  failure  of  their  v.^ork?  No  other  excuse  can  be  given.  That  excuse 
may  do  for  the  gentleman  from  Wythe,  but  I  respectfully  submit  it  will  not  receive 
approbation  from  the  body  of  this  Convention.  Why,  Mr.  President,  if  there  ever  was 
a  time  v^hen  a  Constitutional  Convention  should  have  submitted  its  work,  it  was  when 
the  people  of  the  Southern  States  were  about  to  step  beyond  the  limits  of  the  Union, 
v/hen  they  were  severing  the  national  ties,  and  stepping  into  a  fraternal  war — a  civil 
war — with  all  the  horrors  that  came  with  it.  And  yet  those  men,  as  high  and  as  hon- 
orable men  as  ever  lived,  claimed  that  they  had  the  power,  even  upon  so  momentous 
a  question,  to  proclaim,  and  they  did  proclaim  their  work.  In  Louisiana,  South  Caro- 
lina, Mississippi,  North  Carolina,  Alabama,  Arkansas,  and  Florida  the  works  of  the  seces- 
sion conventions  proclaimed.  Were  they  proclaimed  in  the  days  of  revolution? 
The  doctrine  of  secession  did  not  admit  of  the  idea  of  revolution.  Was  there 
war  along  the  borders  of  an^'  of  those  States?  It  is  true  that  upon  the  seacoast 
of  South  Carolina  lay  Fort  Sumter:  but  within  the  limits  of  her  own  State  peace 
reigned.  Amidst  their  ovvn  people  there  was  peace.  Yet,  upon  a  momentous  question 
like  that  of  secession,  without  any  excuse  that  it  was  necessary,  because  the  people 
coLild  not  be  consulted,  those  conventions  exercised  this  power.  Hence,  when  we  come 
down  to  a  time  as  late  even  as  1861,  we  find  that  this  power  was  exercised  by  men 
who  were  as  able  and  as  patriotic  as  we  are,  and  who  knew  that  they  risked  all  upon 
the  die  they  cast. 

T  come  down  now  to  a  still  later  time,  and  call  3^our  attention  to  the  conventions 


3240 


DEBATES  OF  THE  CONSTITUTIOlvrAL  CONVENTION"  OF  VIRGINIA. 


of  Mississippi  and  South  Carolina,  which  in  the  last  ten  years  proclaimed  their  con- 
stitutions. 

Let  me  step  hack  once  more  to  the  Dark  Ages,  the  days  of  men  who  were  ignor- 
ant, as  is  claimed,  of  the  safeguards  necessary  for  the  people,  and  ask  your  consid- 
eration of  the  language  of  Chief  Justice  Marshall.  He  surely  stands,  even  in  the  eyes 
of  the  opponents  of  this  measure,  as  high  as  Judge  Agnew,  who  decided  the  Pennsyl- 
vania case.  In  the  case  of  McCulloch  vs.  Maryland,  4th  Wheaton,  on  page  403,  Chief 
Justice  Marshall,  speaking  of  the  adoption  of  the  Constitution  of  the  United  States, 
said  that  that  "instrument  was  submitted  to  the  people."    He  then  added: 

They  acted  upon  it  in  the  only  manner  in  which  they  can  act  safely,  effectively, 
and  wisely  on  such  a  subject,  by  assembling  in  convention. 

Thus  we  see  what  that  eminent  jurist  thought  was  the  nature  of  a  convention. 

Here  is  one  of  the  old  Constitution-making  patriarchs,  who  tells  you  that  a  Consti- 
tutional Convention  is  a  gathering  of  the  people,  and  that  convention  the  only  way  in 
which  it  is  safe  and  wise  to  adopt  a  Constitution. 

Sir,  if  these  gentlemen  will  not  be  persuaded  by  the  views,  upon  constitutional  ques- 
tions, of  so  great  an  expounder  of  the  Constitution,  whose  anniversary  was  celebrated 
from  one  end  of  this  land  to  the  other  a  fev/  months  ago,  I  fear  that  whatever  I  may  say 
will  fall  upon  deaf  ears. 

But  was  he  not  right?  Sir,  this  Constitution  consists  of  many  abstract  principles.  It 
doesn't  pertain  to  one  subject.  It  is  not  a  mere  question  of  the  referendum  of  a  statute. 
But  it  consists  of  the  many  subjects  that  are  comprised  in  the  Constitution,  with  all  their 
subdivisions.  What  would  the  people  be  allowed  to  do?  They  will  not  vote  on  each  pro- 
position or  on  each  article.  They  could  not  vote  for  the  article  for  taxation,  or  the  article  on 
corporations,  or  the  article  on  suffrage,  or  the  article  on  city  government,  or  the  article 
on  county  government,  or  public  institutions;  but  they  would  only  be  allowed  to  vote 
for  it  as  a  whole,  or  they  would  have  to  vote  against  all  of  it.  That  is  the  proposition 
that'is  contained  in  the  theory  that  they  can  exercise  no  choice  as  to  the  subjects,  but 
that  they  are  simply  to  say  that  they  will  take  the  whole  or  refuse  the  whole.  The 
reason  you  would  vote  against  it,  might  be  the  very  reason  which  would  induce  me 
to  vote  for  it.  Why  I  should  vote  for  it  might  be  the  very  reason  which  would  induce 
you  to  vote  against  it.  And  so  we  are  asked  to  give  the  people,  under  the  circum- 
stances which  exist  around  us  now,  an  opportunity  to  say:  I  will  take  the  whole  Con- 
stitution, or  I  will  not  take  any  of  it.  I  respectfully  submit  that  Chief  Justice  Mar- 
shall, no  matter  how  far  back  in  the  past  he  may  have  lived,  was  right  vfhen  he  said 
that  the  only  safe  and  wise  way  for  a  people  to  adopt  a  Constitution  was  by  assembling 
in  convention. 

Now,  Mr.  President,  I  desire  to  call  your  attention  to  a  few  authorities  which  I  sub- 
mit to  support  the  proposition  that  a  convention  can  proclaim  a  Constitution.  In  Mis- 
souri vs.  Neal,  42  Mo.,  on  page  123,  the  Supreme  Court  said: 

The  Convention  might  (if  it  had  been  deemed  proper  to  do  so)  have  declared  the 
Constitution  framed  by  it  in  full  force  and  effect  without  making  provision  for  its  sub- 
mission. 

The  only  ground  upon  which  they  attempt  to  get  rid  of  that  language  is  that  it  is 
obiter  dictum.  What  is  obiter  dictum  depends  very  much  on  what  you  want  it  to  be. 
One  man  will  say  that  a  statement  is  a  decision  upon  a  material  question  at  issue,  if 
he  wants  it  to  be,  while  another  man  will  pay  that  it  has  nothing  to  do  with  the  ques- 
tion, and  Vv^as  not  in  the  case.  Here  v/as  a  question  before  the  Missouri  court  as  to 
whether  the  line  of  procedure  that  had  been  taken  by  the  Constitutional  Convention  was 
within  its  power,  and  the  Supreme  Court  of  Missouri  said  it  could  have  proclaimed  the 
Constitution  if  it  had  wanted  to. 

I  now  v/ant  to  call  your  attention  to  the  decision  of  the  Supreme  Court  of  West 
Virginia  in  the  case  of  Williams  vs.  Jackson. 


DEBATES  OE  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  TIEGIXIA. 


3241 


Mr.  Harrison:  Will  you  allovr  me  to  call  your  attention  to  the  fact  tliat  that  was 
not  a  decision  of  the  Supreme  Court  of  West  Virginia.  It  was  simply  a  contested  elec- 
tion case  before  a  special  court. 

Mr.  Meredith:  I  will  take  your  statement.  It  appears  in  the  West  Virginia  re- 
ports, and  I  took  it  for  granted  it  was  a  decision  of  the  Supreme  Court.  But  whatever 
may  have  been  the  composition  of  the  court,  here  is  its  language: 

I  have  had  no  difficulty  in  reaching  the  following  conclusions  upon  the  constitu- 
tional questions  presented  in  this  specification,  viz.: 

First.  That  a  Constitutional  Com'ention,  lawfully  convened  does  not  derive  its 
powers  from  the  Legislature,  but  from  the  people. 

Second.  That  the  powers  of  a  Constitutional  Convention  are  in  the  nature  of  sov- 
ereign powers. 

Third.  That  the  Legislature  can  neither  limit  nor  restrict  them  m  the  exercise  of 
these  powers. 

You,  gentlemen,  are  aware  of  the  decision  in  Sproule  vs.  Fredericks,  69th  Missis- 
sippi, 898.  I  know  what  has  been  said  about  that,  that  it  was  a  case  where  there  was 
no  legislative  statute.    But  look  at  the  language  of  the  court  in  that  case: 

In  support  of  this  view  of  the  invalidity  of  the  Constitution  two  propositions  are 
asserted: 

First.  That  a  Constiiutonal  Convention  has  power  only  to  prepare  or  frame  the 
body  of  a  Constitution,  and  that,  when  prepared  or  framed,  the  instrument  is  of  no 
force  or  effect  until  ratified  by  a  popular  vote  of  the  people,  and  the  Constitution  of 
1890,  having  never  been-  submitted  to,  or  ratified  by,  the  people,  is  invalid. 

Second.  That  the  changes  made  by  the  Constitution  in  the  basis  of  suffrage  are 
violative  of  the  act  of  Congress  readmitting  the  State  of  Mississippi  into  the  Union  in 
the  year  1870,  and  invalidate  that  instrument. 

With  confidence  we  reject  both  propositions  as  unsound.    *    *  * 

We  have  spoken  of  the  Constitutional  Convention  as  a  sovereign  body,  and  that 
characterization  perfectly  defines  the  correct  view,  in  our  opinion,  of  the  real  nature 
of  that  august  assembly.  It  is  the  highest  legislative  body  known  to  freemen  in  a 
representative  government.  It  is  supreme  in  its  sphere.  It  wields  the  powers  of  sov- 
ereignty speciallj^  delegated  to  it  for  the  purpose  and  the  occasion  by  the  whole  elec- 
toral body,  for  the  good  of  the  whole  Commonwealth.  The  sole  limitation  upon  its 
powers  is,  that  no  change  in  the  form  of  government  shall  be  done  or  attempted. 

I  want  also  to  call  your  attention  to  the  case  of  Quinlan  vs.  Railroad  Co.,  89  Texas, 
on  page  377,  where  the  Supreme  Court  said: 

The  Convention  which  passed  the  ordinance  which  was  held  valid  in  Grigsby  vs. 
Peak,  was  called  by  virtue  of  the  proclamation  of  President  Johnson.  This  proclama- 
tion did  not  require  an:'  part  of  the  work  of  the  Convention  to  be  submitted  to  the 
vote  of  the  people,  and  in  our  opinion  that  Convention,  therefore,  had  the  power  to 
pass  ordinances  without  submitting  them  for  adoption  to  a  popular  vote. 

I  will  call  your  attention  to  one  other  case,  and  then  I  shall  leave  this  branch  of 
the  subject.  My  friend  from  Fairfax  (a  day  or  two  ago)  referred  to  the  decision  in 
:^Jiller  vs.  Johnson,  92  Kentucky  5S9,  and  contended  that  the  language  of  the  dissent- 
ing judge  in  that  case  ought  to  have  a  great  influence  with  us,  because  of  its  strong 
and  forcible  reasoning.  I  submit  to  my  friend  that  there  is  a  part  of  that  decision 
which  he  omitted  to  consider.    It  is  the  part  of  the  decision,  where  the  judge  said  this: 

But  it  is  said  that  the  Convention  of  lS49-'50,  after  submitting  their  work  to  the 
people,  made  material  amendments  to  that  Constitution  as  ratified  by  the  people. 

The  judge  then  added: 

That  is  true,  but  the  Convention  of  1849-'o0  had  that  power  because  their  agency 
was  unlimited;  the  people  did  not  restrict  them  in  their  agency. 
204 — Const.  Deb. 


3242 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 


It  is  worthy  of  notice  that  he  did  not  say  that  it  had  express  power  given  to  it,  but 
that  it  was  elected  without  restriction  upon  it.  When  you  come  to  examine  the  Ken- 
tucky act  under  which  the  Convention  of  1849-'50  was  called,  you  will  find  that  the  act 
never  submitted  to  the  people  the  question  of  calling  a  convention,  but  simply  sub- 
mitted to  them  the  election  of  delegates.  It  was  when  commenting  upon  that  act  that 
the  dissenting  judge,  who  was  holding  that  the  proclamation  of  the  additions  to  the  last 
Kentucky  Constitution  was  void,  because  the  Convention  had  been  required  by  the 
act  calling  it  to  submit  the  Constitution,  said  that  the  same  line  of  conduct  had  been 
pursued  in  1849-'50,  but  declared  those  additions  to  the  Constitution  of  1849-,50  were 
valid  upon  the  ground  that  there  had  been  no  express  restriction  put  upon  the  former 
Convention. 

In  the  light  of  the  above  decisions,  I  submit  that  we  have  a  right  to  insist  that 
the  courts  recognize  that  a  convention  called  without  restriction  has  a  right  to  pro- 
claim a  Constitution.  I  come  now  to  our  own  Constitution.  I  shall  have  but  little  to 
say  upon  the  language  of  that  instrument.  That  has  been  thoroughly  discussed.  My 
friend  from  Hanover,  upon  two  occasions,  has  shown  you  so  clearly  what  is  meant  by 
the  provisions  of  our  Constitution  that  I  submit  that  what  I  shall  say  will  be  almost 
repetition.  I  will  not  take  up  the  time  of  this  Convention  to  read  to  it  the  two  sec- 
tions of  the  Constitution  bearing  upon  this  question.  You  are  all  familiar  with  them. 
But  I  want  to  say  this:  Upon  what  theory  can  it  be  claimed  that  a  Constitutional  Con- 
vention of  this  State  has  not  the  power  to  proclaim  a  Constitution,  but  is  obliged  to 
submit  it,  when  you  look  at  those  two  provisions  of  the  Constitution,  and  see  how  they 
widely  differ  in  their  requirements?  How  one,  as  to  specific  amendments,  goes  into 
detail  as  to  the  method  of  proceedure;  how  it  labors  to  protect  the  ^ate  against  legis- 
lative acts;  how  it  requires  that  the  amendments  be  spread  upon  the  journal;  how  the 
votes  shall  be  recorded,  and  how  two  Legislatures  shall  act  before  an  amendment  shall 
be  submitted  for  approval.  It  seems  to  struggle  to  prevent  anything  from  being  left  to 
implication. 

As  Mr.  Justice  Cooley  said  in  his  work  on  "Constitutional  Limitations": 
We  impute  to  the  people  a  want  of  due  appreciation  of  the  purpose  and  proper 
province  of  such  an  instrument,  when  we  infer  that  such  directions  are  given  to 
any  other  end;  especially  when,  as  has  been  already  said,  it  is  fair  to  presume  that 
the  people  in  their  Constitution  have  expressed  themselves  in  careful  and  measured 
terms,  corresponding  with  the  immense  importance  of  the  powers  delegated,  and 
with  a  view  to  leave  as  little  as  possible  to  implication. 

In  our  present  Constitution  w^e  find  that  as  to  specific  amendments  the  action  of 
two  Legislatures  is  required,  but  that  when  it  comes  to  speak  of  a  convention,  although 
its  mind  has  been  drawn  to  the  subject  of  submission,  and  although  it  has  expressed 
itself  as  to  the  necessity  of  submission,  of  specific  amendments,  not  one  single  word 
is  said  about  it,  when  it  specifies  what  action  is  to  be  taken  to  revise  and  amend  the 
entire  Constitution.  If,  as  Mr.  Justice  Cooley  says,  we  are  to  regard  these  instruments, 
as  drawn  so  carefully,  and  in  such  measured  terms  as  to  correspond  with  the  immense 
powers  delegated  by  the  people,  as  evidently  intended  to  leave  as  little  as  possible  to 
implication,  then  tell  us  what  it  is  in  our  Constitution  that  justifies  you  in  saying  that 
an  implication  from  its  language  that  we  cannot  proclaim,  but  must  submit,  the  Consti- 
tution for  ratification.  Are  you  not  denied  the  right  to  support  your  contention  by  im- 
plication? Can  you  draw  an  implication  as  to  so  great  and  important  a  matter  when 
the  Constitution  particularizes  as  to  specific  amendments,  when  the  Constitution  pro- 
vides that  there  shall  be  submission  of  specific  amendments,  but  is  silent  when  the 
entire  instrument  is  to  be  revised  and  amended. 

Mr.  President,  it  was  said  by  the  gentleman  from  Frederick  that  one  Constitu- 
tional Convention  could  not  bind  another,  and  that  such  a  provision  as  is  contained  in 
our  Constitution  must  be  void. 

Mr.  President,  there  is  undoujbtedly  a  difference  between  a  restriction  of  the  pow- 
ers of  the  people  and  the  specification  as  to  the  manner  of  exercising  them.   You  must 


DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3243 


have  some  form  of  government;  you  cannot  live  in  chaos.  You  must  prescribe  some 
manner  in  which  a  thing  shall  be  done — not  that  you  are  restrained  from  doing  the 
thing;  not  that  any  power  is  taken;  not  that  the  exercise  of  the  power  is  prevented; 
but  that  you  must  prescribe  some  way  of  exercising  the  power,  in  order  that  there  may 
not  be  confusion,  in  order  that  we  may  have,  as  Dallas  said,  "The  machinery  of  peace- 
able revolution."  If  you  do  not  prescribe  a  method  of  procedure  you  have  to  resort  to 
dangerous  revolution,  to  revolution  without  order  and  to  revolution  without  control, 
for  the  people  will  demand  the  right  to  change  and  alter  their  form  of  government,  as 
an  indefeasible  and  inalienable  right.  So,  I  call  my  friend's  attention  to  the  fact  that 
this  is  simply  a  wise  provision  as  to  the  exercise  of  power,  and  not  a  single  restric- 
tion upon  the  power  itself  to  alter  and  amend  this  Constitution  or  form  of  government. 
When  my  friend  refers  to  the  fact  that  in  the  same  section  of  the  Constitution  there  is 
a  restricticn  upon  us  as  to  a  change  in  the  article  on  suffrage,  I  respectfully  submit  to 
him  that  that  was  an  attempt  to  abridge  the  power  of  the  people,  and  that  therefore 
it  was  void.  I  call  his  attention  to  the  fact  that  where  the  language  of  the  Constitu* 
tion  is  that  the  Legislature  may  provide  for  the  election  of  delegates  to  a  Convention, 
tut  does  not  give  it  any  other  power,  then  upon  the  principle  of  "expressio  unius  exclu- 
sio  alterius,"  the  Legislature  is  not  authorized  to  exercise  any  power  of  putting  any 
restriction  upon  the  Convention  so  called  by  the  people. 

My  friend  from  Fairfax  asked  me  how  the  people  could  exercise  the  right  of  call- 
ing a  Constitutional  Convention,  subject  to  the  restraint  of  submission.  Sir,  it  has 
ample  power.  It  has  the  power  of  submitting  a  specific  amendment  to  the  Constitu- 
tion authorizing  such  a  submission.  But  until  the  Constitution  should  be  so  amended, 
I  do  not  believe  it  would  have  the  power  to  submit  any  proposal  except  in  the  man- 
ner prescribed  by  this  Constitution.  Along  that  line  the  member  from  Halifax  cited  a 
number  of  authorities  holding  that  where  there  is,  in  the  Constitution,  a  prescribed 
method  of  procedure  for  amendment  of  the  Constitution  that  the  prescribed  method 
be  followed,  and  the  court  had  the  power  to  declare  amendments  void  if  that  method 
was  not  properly  followed.  I  desire  simply  to  add  a  few  additional  and  later  authori- 
ties to  those  cited  by  him,  as  some  of  the  members  seem  to  believe  only  in  modern 
cases.  I  ask  their  attention  to  the  doctrine  announced  in  the  case  of  State  vs.  Foraker, 
46  Ohio,  p.  681,  in  v^^hich  the  court  said: 

Constitutions  are  solemn  instruments.  They  are  not  to  be  altered,  changed,  re- 
vised, or  amended,  except  in  strict  compliance  with  the  method  wiiich  the  instru- 
ment itself  suggests. 

I  alEO  call  their  attention  to  the  case  of  Edwards  vs.  Lesueur,  132d  Missouri,  on 
p.  433,  where  it  is  said: 

It  is  true  that  the  General  Assembly  can  only  propose  amendments  under  the  pov/er 
delegated  to  it  by  the  people.  This  power  must  be  construed  according  to  the  general 
principles  that  govern  courts  in  the  construction  of  delegated  powers.  In  the  exercise 
of  such  power  every  substantial  requirement  must  be  observed,  and  followed,  or  there 
can  be  no  valid  amendment.  In  respect  to  the  mode  of  proposal  and  submission,  the 
provisions  of  the  Constitution  must  be  regarded  as  absolute.  The  courts  should  not 
hesitate  to  see  that  the  Constitution  is  obeyed  in  these  particulars. 

Along  the  same  line  of  thought  I  ask  permission  to  read  an  extract  from  the  deci- 
sion in  Inre  Denny,  156  Indiana,  where  the  principle  is  thus  stated: 

It  is  only  by  virtue  of  the  Constitution's  command  to  that  body  that  the  proposed 
amendment  may  be  submitted  by  a  legislative  act.  Prior  to  the  time  designated  there 
is  no  constitutional  power  in  any  General  Assembly  to  speak  authoritatively  on  the 
subject  of  the  submission  of  proposed  amendments. 

I  refer  you  also  to  the  case  of  Livermore  vs.  Waite,  in  102d  California,  on  p.  117, 
where  the  court  said: 

It  can  be  neither  revised  nor  amended  except  in  the  manner  prescribed  by  itself. 


3244 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


and  ihe  power  which  it  has  conferred  upon  the  Legislature  in  reference  to  proposed 
amendments,  as  well  as  to  calling  a  Convention,  must  be  strictly  pursued.  Under  the 
vention  i^ethods  the  entire  sovereignty  of  the  people  is  represented  in  the  Con- 

Mr.  Thom:  Will  my  friend  state  whether  he  regards  the  constitutional  method, 
the  one  which  is  inserted  in  the  old  Constitution,  as  the  exclusive  method  for  the 
amendment  of  the  Constitution? 

Mr.  Meredith:  I  do,  until  the  present  Constitution  be  amended,  as  I  have  already 
suggested.  I  believe  that  where  there  has  been  prescribed  a  method  of  procedure,  all 
they  have  got  to  demand  is  that  their  Legislature  shall  offer  appropriate  and  specific 
amendment,  amending  that  provision  of  the  Constitution.  They  can  thus  change  it,  if 
they  so  desire.  The  people  are  not  bound,  any  longer  than  they  are  willing  to  be 
bound.  They  have  an  ample  remedy  in  that  method  described  as  peaceable  revolu- 
tion. The  Legislature  might  submit  a  call,  asking  the  people  if  they  desire  a  Conven- 
tion in  a  method  different  from  that  prescribed  in  the  Constitution,  and  I  believe 
that  if  the  people  act  upon  it,  the  call  would  become  valid,  because  of  the  action  of  the 
people.  But  before  the  people  acted,  the  call  would  be  invalid.  It  would  be  the  action 
of  the  people,  which  would  put  life  in  it.  Outside  of  that  I  say  the  people  have  a  rem- 
edy, because  they  have  the  right,  under  the  provisions  of  the  Constitution,  to  have  sub- 
mitted an  amendment  of  the  specific  nature  desired. 

Why,  sir,  if  you  look  at  the  modern  Constitutions  you  will  find,  in  many  of  them,  a 
statement  made  that  a  convention  called  to  amend  and  revise  the  Constitution  shall 
submit  said  Constitution  to  the  people.  Were  their  hands  tied?  Can  you  tie  them  one 
way  and  not  tie  them  the  other?  Had  they  thereby  surrendered  power,  or  merely 
prescribed  a  method  of  procedure — which  they  can  change  at  any  time  in  the  proper 
manner. 

Mr.  Thom:  If  the  constitutional  method  of  amendment  is  exclusive,  and  the  Con- 
stitution contained  an  unlimited  power  in  the  Constitutional  Convention,  how  can  the 
people,  if  they  desire  to,  limit  a  Constitutional  Convention. 

Mr.  Meredith:  I  have  already  answered  that.  I  have  stated  that  they  can  do 
it  by  specific  amendment.  They  could  change  that  very  feature,  as  they  can  change 
any  other  feature  of  the  Constitution  by  specific  amendment.  It  was  wise  to  have 
these  two  lines  of  procedure,  because  they  could  get  rid  of  the  necessity  of  a  Constitu- 
tional Convention,  and  would  have  specific  amendments  made.  If  they  wanted  a  Con- 
stitutional Convention  they  could  first,  by  specific  amendment,  provide  what  should 
be  the  nature  of  the  Convention.  But  in  this  State  they  have  never  intimated,  except 
hy  the  act  of  1849,  that  it  was  necessary  that  a  Constitution  should  be  submitted  to 
the  people.  That  act  not  only  asked  the  people  whether  they  desired  a  Convention, 
but  also  specified  that  the  Convention,  if  called,  should  submit  the  Constitution. 

The  language  in  our  present  Constitution  as  to  the  calling  of  a  convention,  is 
almost  v/ord  for  word  that  contained  in  the  Iowa  Constitution.  The  Supreme  Court 
of  Iowa  has  declared  what  would  be  the  nature  of  a  convention  called  under  the  pro- 
vision of  the  Constitution  of  that  State.  In  the  case  of  Koehler  et  al.  vs.  Hill,  69  Iowa, 
on  page  555,  the  court  said: 

We  deem  it  sufiicient  to  say  that  if  there  is  any  provision  of  the  Constitution 
which  should  be  regarded  as  mandatory,  it  is  where  the  Constitution  provides  for  its 
own  amendment  otherwise  than  by  means  of  a  convention  called  for  that  purpose.  The 
powers  of  a  convention  are,  of  course,  unlimited.  The  members  thereof  are  the  repre- 
sentatives of  the  people,  called  together  for  that  purpose. 

Hence  we  have  a  construction  of  the  language  of  a  Constitution  similar  to  our 
own. 

Mr.  President,  the  hour  for  adjournment  has  nearly  arrived.  I  wish  to  thank  this 
body  for  its  kind  attention  to  my  remarks.  I  have  felt  earnestly  -  on  this  subject,  be- 
cause I  have  appreciated  the  gravity  of  the  question.    I  believe  that  a  Constitutional 


DEBATES  OF  THE  COXSTITUTIOXAL  CONVENTION  OE  VIRGINIA.  3245 

Convention,  called  without  any  express  restriction  of  its  power,  is  the  gathering  of 
the  people,  and  with  sovereign  power.  But,  Mr.  President,  the  having  of  a  power 
and  the  exercising  of  it,  are  two  different  things.  I  am  like  the  gentleman  from 
Lancaster  in  that  regard.  I  should  unhesitatingly  submit  any  and  every  Constitution, 
unless  I  thought  that  the  circumstances  that  surrounded  me  justiSed  a  different  course 
of  procedure.  We  are  told  that  the  constitutions  of  the  Revolutionary  period  were 
not  submitted,  because  of  the  emergency  then  pressing  upon  the  people.  Sir,  have  we 
not  equal  justification?  What  brought  us  here?  What  brought  us  here  but  a  desire 
to  get  relief,  as  far  as  we  lawfully  can,  from  the  provisions  of  the  Constitution  of  the 
United  States  as  to  negro  suffrage?  What  called  us  here,  I  say,  except  that  we  should 
lift  from  our  people  the  burden  of  that  wrong?  Who  more  eloquently  depicted  those 
wrongs  than  my  friend  from  Norfolk,  when  he  said  that  we  were  living  in  mental 
restriction  and  moral  degredation?  And  he  begged  that,  to  the  uttermost  limit  of 
our  power,  Vv^e  should  act  so  that  we  could  keep  future  generations,  at  least,  from 
similar  sin  and  shame.  Sir,  can  any  emergency  be  greater  than  that  that  now  presses 
upon  this  State?  Is  an  emergency  that  was  created  by  a  three  pence  tax  on  a  pound 
of  tea,  although  it  may  involve  a  great  question  of  taxation,  as  great  as  the  circum- 
stances that  tend  to  produce  the  moral  degradation  of  a  people,  and  which  press  down 
upon  us  the  mental  restraint  and  lack  of  freedom  of  thought  under  which  we  have 
struggled  and  suffered.  Is  the  great  question  of  States'  rights  a  higher  one  than  a 
man's  moral  character  and  the  character  of  the  children  that  will  come  after  him? 
Shall  we  take  any  risk  under  such  circumstances?  The  people  of  South  Carolina  and 
Louisiana  and  Mississippi  could  have  carried  their  secessional  constitutions  before  the 
people,  if  they  had  not  thought  that  there  should  be  immediate  action.  My  friend  from 
Pulaski  said  that  he  would  vote  to  proclaim  if  it  was  necessary.  Sir,  let  the  question 
be  decided  by  those  of  us  who  have  struggled  under  it,  and  who  have  suffered.  We 
tell  you  that  we  know  the  danger  of  submitting  this  instrument  to  148,000  negroes, 
backed  and  encouraged  by  the  power  of  the  v^^hite  men  of  this  Stare,  organized  and 
unorganized,  who  may  be  affected  by  it.  We  know  that  if  it  is  defeated  we  must  re- 
main in  the  slavery  that  comes  from  being  prevented  to  exercise  freedom  of  thought. 
Is  not  the  emergency  sufficient?  Can  there  be  anything  that  could  more  fully  justify 
men  to  take  any"  risk  in  order  to  be  relieved  from  the  conditions  under  which  we  now 
live,  the  desire  to  save  our  people  from  fraud  by  which  they  have  been  surrounded  for 
years,  and  lift  up  this  old  State  to  a  condition  of  mental  freedom  which  once  made  it 
the  vanguard  of  the  nation?    Sir,  I  ask  for  our  children's  sake  that  we  take  no  risk. 

Sir,  for  years  Vv^e  have  been  saying  to  the  people  that  we  were  struggling  under 
a  Constitution  forced  upon  us  by  the  Underwood  Convention.  For  years  we  have  been 
justifying  everything  by  the  plea  of  the  fear  of  negro  supremacy.  The  people  sent  us 
here  to  work  out  our  salvation — to  relieve  this  State  of  all  chance  of  such  an  evil. 
What  shall  we  say  to  them  if  we  now  fail?  In  proclamation  lies  absolute  safety.  Any 
other  cburse  will  be  surrounded  by  danger.  We  can  bring  relief,  if  we  will,  to  the  old 
State.  The  people,  appreciating  the  necessity,  vs^ill  justify  our  course.  For  these  rea- 
sons I  am  for  proclamation.    (Great  applause.) 

Mr.  Flood:  Mr.  President,  I  send  to  the  Clerk's  desk  a  resolution  which  I  desire 
to  have  read. 

The  Secretary  read  as  follovv's: 

That  the  Constitution  framed  by  this  body  be  submitted  to  such  electorate  as  this 
body  may  determine  for  ratification  or  rejection. 

If  this  question  is  decided  in  the  affirmative,  then  this  body  shall  consider  the 
question : 

"Shall  the  Constitution  framed  by  this  body  be  submitted  to  the  whole  electorate 
as  now  constituted  for  ratification  or  rejection?" 

If  this  last  qT:iestion  is  decided  in  the  negative,  then  this  body  shall  consider  the 
question: 

"Shall  the  Constitution  framed  this  body  be  submitted  to  the  electorate  pro- 
vided for  in  said  Constitution  for  ratification  or  rejection?" 


3246  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

If  the  first  question  is  decided  in  the  negative,  then  this  body  shall  consider  the 
question: 

"Shall  the  Constitution  framed  by  this  body  be  ordained  by  this  Convention?" 

Mr.  Keezell:    Mr.  President,  I  offer  the  following  resolution. 
The  President:    The  Secretary  will  report  the  resolution. 
The  Secretary  read  as  follows: 

Resolved,  That  the  roll  shall  be  called,  and  as  each  member's  name  is  called  he 
shall  announce  his  vote  either  for  submission  to  the  present  electorate,  for  submission 
to  the  electorate  provided  under  the  proposed  new  Constitution,  or  for  proclamation, 
as  he  may  elect. 

If  at  the  conclusion  of  the  roll  call  neither  of  these  propositions  receive  the  voies 
of  a  majority  of  all  the  members  elected  to  the  Convention,  then  the  proposition  re- 
ceiving the  least  number  of  votes  shall  be  dropped,  and  the  vote  shall  be  taken  as  be- 
tween the  remaining  two  propositions,  the  one  receiving  the  votes  of  a  majority  of  all 
elected  to  prevail. 

The  President:    The  resolutions  will  lie  on  the  table  and  be  considered  in  con- 
nection with  the  resolution  offered  by  the  gentleman  from  Campbell. 
The  Chair  was  thereupon  vacated  until  4  o'clock. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  the  President  in  the 
Chair. 

The  President:  The  pending  question  is  as  to  the  disposition  to  be  made  of 
the  Constitution  after  it  has  been  completed,  and  the  gentleman  from  Norfolk  city 
toas  the  floor. 

Mr.  Thorn:  Mr.  President  and  gentlemen  of  the  Convention,  I  make  my  most 
s-ncere  acknowledgement  for  the  courtesy  of  a  hearing  upon  this  question.  I  realize 
that  I  had  no  right  to  expect  that  the  time  allotted  for  debate  would  be  extended,  and 
I  would  not  now  accept  the  concession  were  it  not  for  my  profound  interest  in  the 
question  and  my  profound  appreciation  of  its  far-reaching  importance.  As  many  and 
as  great  as  have  been  the  problems  v/e  have  considered  and  determined,  I  regard  the 
one  that  is  to  be  decided  to-day  as  transcending  them  all  in  importance,  and  as  by  far 
the  mightiest  in  its  influence  upon  the  destinies  of  Virginia.  The  principles  vv^hich  we 
have  engrafted  upon  the  Constitution  of  the  State  may  be  retained  or  omitted  from  fu- 
ture Constitutions;  but  what  we  do  to-day  upon  this  question  will  furnish  an  endur- 
tng  precedent  upon  the  question  of  the  power  of  conventions,  and  v/ill  project  its  light 
or  its  shadow  upon  all  the  future. 

I  trust  I  approach  its  consideration  v/ith  a  due  appreciation  of  its  miportance  and 
Vfith  a  true  rsalization  of  my  own  solemn  responsibilities,  as  one  of  the  representa- 
tives of  my  people.  I  shall  discuss  first,  the  legal  power;  second,  the  moral  right,  and 
third,  the  political  expediency  of  proclamation.  I  shall  not  make  large  reference  to 
authority.  I  have  not  the  time  at  my  disposal,  nor  do  I  consider  this  a  favorable 
forum  for  the  critical  examination  of  authorities  and  the  careful  exposition  of  them.  I 
shall  attempt  to  refer  back  the  conclusion  at  vv^hich  I  have  arrived  to  a  few  certain 
and  simple  principles,  which  I  hope  will  address  themselves  to  the  approval  of  this 
Convention  and  easily  meet  with  its  acceptance. 

At  the  very  threshhold  of  the  discussion,  I  must  pause  to  express  my  dissent  from 
the  conclusion  reached  by  the  gentleman  who  just  preceded  me,  whose  splendid  pre- 
sentation of  his  side  of  this  question  challenges  the  admiration  of  every  man  in  this 
Convention.  But  the  apparition  which  has  such  terrors  to  his  mind  possesses  no  dread 
for  me.  He  founded  his  argument  upon  the  proposition  that  the  liberties  of  the 
people  are  in  greater  danger  from  the  legislative  branch  of  this  government,  hemmed 
about  as  it  is,  by  strict  limitations,  that  they  are  from  the  unrestricted  and  unre- 
strained power  which  he  asserts  belong  to  this  Convention.  I  cannot  bring  my  mind 
to  the  acceptance  of  any  such  proposition.  To  me  danger  lurks  in  unrestrained  power. 
It  is  not  to  be  found  to  the  same  extent  in  the  restricted  power  of  the  Legislature. 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OP  VIEGIXIA. 


3247 


If  we  are  able  here  to  work  our  own  will  unrestrained  by  any  limitation  upon 
the  form  of  our  government  for  all  time,  or  during  the  life  of  the  Constitution,  then 
truly  we  are  in  the  presence  of  the  greatest  power  which  could  work  good  as  well  as 
of  the  greatest  power  that  could  work  evil  upon  our  people.  If  we  are  here,  able  to 
make  a  good  Constitution,  and  to  put  it,  without  limitation,  upon  the  people,  we  are 
here  able  to  make  a  bad  Constitution  and  likewise  enforce  it  upon  an  unwilling  people. 
If  we  are  here  able  to  enlarge  the  charter  of  our  people's  liberties,  we  are  likewise 
here  with  the  power  to  destroj^  them.  If  we  are  able  to  find  new  principles  which  shall 
make  for  our  people's  welfare,  we  likewise  possess  the  power  to  abolish  the  ancient 
charter  of  their  freedom.  If  we  possess  any  such  power  as  is  claimed  for  us  by  the 
gentleman  from  the  city  of  Richmond  (Mr.  Meredith),  then,  by  one  stroke  of  our  pen, 
we  are  able  to  abolish  trial  by  jury  and  to  wipe  out  the  Bill  of  Rights  of  Virginia. 

If  he  be  right,  we  have  no  limit  to  our  power,  except  such  as  is  established  by 
the  Constitution  of  the  United  States.  The  apparition  then,  if  there  are  apparitions 
In  this  case,  which  makes  me  pause,  is  not  the  power  of  the  Legislature,  which  says 
that  we  shall  submit  our  work  to  our  masters  for  approval  or  rejection;  but  it  is  the 
power  that  claims  for  us  the  right  to  put  manacles  upon  the  people  who  sent  us  into 
this  hall. 

If  it  be  true,  as  I  think,  that  danger  to  our  people  is  most  to  be  feared  from  un- 
restrained power,  then  every  intendment  must  be  made  in  favor  of  the  restricted  power 
of  this  Convention.  That  intendment  would  then  be  in  favor  of  the  liberties  of  the 
people,  and  not  in  favor  of  the  power  of  this  Convention  to  oppress  and  destroy. 

This  brings  me  to  say  to  the  gentleman  from  Hanover  that  I  could  not  appreciate 
the  an^aignment  which  he  made  here,  in  the  argument  he  presented  on  day  before 
3'esterday,  of  the  position  taken  by  the  gentleman  from  Fairfax.  He  said  that  the 
gentleman  from  Fairfax  had  worked  himself  up  to  the  position  of  claiming  that  there 
v»"as  no  doubt  upon  the  question  of  the  powers  of  this  Convention,  and  he  assumed  he 
had  destroyed  the  argument  which  the  gentleman  from  Fairfax  presented,  because  the 
latter  had  not  been  willing  to  go  beyond  the  assertion  of  a  doubt  as  to  the  power 
of  this  Convention.  If  the  power  of  this  Convention  to  put  a  new  government  upon  the 
people  of  Virginia  is  doubtful,  then  the  fight  of  the  submissionists  is  won,  because  it 
Is  impossible  to  reconcile  to  any  conscientious  mind  upon  this  floor  the  exercise  of 
a  doubtful  power  to  put  a  new  government  upon  the  people  of  our  State.  The  man 
who  asserts  conventional  omnipotence  has  the  burden  upon  him,  not  only  of  establishing 
the  power,  but  of  removing  all  reasonable  doubts  as  to  its  exercises,  because  I  take  it 
to  be  true  that  no  patriotic  and  no  wise  statesman  in  this  body  will,  for  an  instant,  con- 
sent to  the  exercise  of  a  doubtful  power  in  putting  a  new  fundamental  law  upon  the 
people  of  Virginia.  Once  teach  me  that  our  power  is  doubtful,  and  you  have  made 
it  my  conscientious  duty  to  withhold  my  hand  from  its  exercise.  In  order  to  persuade 
me  to  change,  by  our  own  unratified  act,  the  ancient  institutions  of  the  State,  to  thus 
create  conditions  here  that  shall  make  or  mar  the  future  of  our  people,  you  must  show 
me  that  I  am  exercising  no  doubtful  povver,  but  that  my  charter  to  exercise  it  is  writ- 
ten strong  and  clear  in  the  authority  which  I  get  from  my  people.  That  being  the 
principle  which  addresses  itself  to  the  conscientious  acceptance  of  my  ovrn  mind,  it 
marks  the  parting  of  the  ways  between  myself  and  those  who  agree  with  me  on  the 
one  side,  and  the  gentleman  from  Richmond  and  those  who  agree  with  him  on  the 
other.  I  shall  walk  along  the  pathway  pointed  out  to  me  by  a  certain  commission 
from  my  people,  and  will  not  walk  along  the  pathway  that  may  lead  me  into  a  tyrran- 
rous  exercise  of  power  the  people  of  Virginia  never  intended  to  grant.  I  will  accept  no 
doubtful  commission  to  put  a  new  form  of  government  upon  the  people  of  the  State. 
The  gentleman  from  Richmond  finds  terrors  only  in  that  provision  of  the  statute  of 
Virginia  which  says  that  before  a  new  government  is  put  upon  the  State  the  people 
of  Virginia  must  say  vrhether  or  not  they  will  adopt  or  reject  it.  Before  we  go  into  the 
discussion  of  the  legal  principles  of  this  case,  let  me  invite  your  minds  to  reflect  upon 
the  question  which  is  the  most  patriotic  attitude,  that  of  the  gentlemen  in  this  Con- 


3248  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


vention  who  would  put  the  work  of  their  own  hands  upon  the  people  whether  they 
will  it  or  not,  or  that  policy  of  the  Legislature  of  this  State  which  says:  When  you 
have  made  a  new  form  of  government  for  Virginia  you  shall  submit  it  to  the  people  to 
say  whether  or  not  it  pleases  them,  I  have  not  been  able  to  agree  with  many  of  the 
gentlemen  upon  this  floor  upon  what  they  call  the  recognition  of  the  rights  of  the 
people.  To  them  the  all-important  matter  for  the  people  was  the  question  whether  or 
not  the  people  should  have  the  right  to  elect  justices  of  the  peace  or  a  judge  of  a 
court,  or  a  corporation  commissioner.  To  me  these  are  small  considerations  in  com- 
parison with  the  question  whether  the  people  shall  have  the  right  to  say  what  shall 
be  the  form  of  government  under  which  they  shall  live  for  thirty  years.  I  give  way 
to  no  man  in  my  respect  for  the  just  rights  of  the  people.  I  yield  to  no  one  in  my 
purpose  to  retain  a  republican  form  of  government  in  all  its  sense  and  all  its  power 
in  Virginia;  and  I  am  willing  to  put  the  record  of  saying  that  the  people  shall  speak 
as  to  what  shall  be  their  fundamental  law  against  the  record  of  those  gentlemen  who 
deny  the  people  the  right  tO'  say  what  shall  be  their  fundamental  law,  and  yet  make  a 
bitter  fight  upon  this  floor  in  order  to  obtain  for  them  the  right  to  elect  their  justices  of 
the  peace.  Now,  gentlemen,  for  a  few  moments  I  ask  your  consideration  of  the  legal 
propositions  bearing  upon  this  question.  What  is  the  attitude  in  which  we  stand  to 
the  people  of  Virginia.  Are  we  the  people  or  are  we  the  representatives  of  the  people? 
Is  the  sovereignty  of  the  people  resident  in  us,  or  are  we  merely  the  agents  of  the 
people  of  Virginia,  to  whom  we  must  look  for  the  source  and  for  the  scope  of  our  power? 
Gentlemen  will,  I  presume,  endorse  the  proposition  that  if  we  possess  all  the  power  of 
the  people,  the  man  who  asserts  it  must  feel  it  incumbent  upon  him  to  show  that 
such  is  the  fact.  The  man  who  contends  that  the  members  of  this  Convention  have 
confided  to  them  all  the  powers  of  the  people  of  Virg'inia  has  the  burden  on  him  to  point 
to  the  authority  for  that  most  exceptional  condition  of  affairs.  The  people  of  Vir- 
ginia can  confer  upon  us  all  their  sovereignty,  or  they  can  confer  upon  us  only  a  lim- 
ited portion  of  their  sovereignty,  I  see  in  this  hall  to-day  members  of  the  General 
Assembly  of  Virginia.  They  stand  before  you  as  living  illustrations  of  the  fact  that 
.the  people  may  confer  upon  their  agents  only  a  part  of  their  sovereignty,  for  the  Legis- 
lature of  this  State  enjoys  only  a  limited  sovereignty.  I  see  before  me  a  distinguished 
Senator  of  the  United  States  from  the  State  of  Virginia.  He  stands  before  you  as  another 
embodiment  of  the  proposition  that  the  people  may  confer  a  limited  portion  only  of 
their  sovereignty.  All  of  the  illustrations  known  to  us  in  government  are  illustra- 
tions of  the  limited  authority  in  the  agents  of  the  people.  If  this  Convention  is  omnipo- 
tent, it  is  the  only  instance  in  which  the  whole  power  of  the  people  is  surrendered 
and  put  into  the  hands  of  their  agents. 

In  that  condition  of  affairs,  I  say  that  I  lay  it  down  as  an  incontrovertable  propo- 
sition that  the  man  who  asserts  that  we  have  all  the  power  of  the  people  has  placed 
upon  him  the  burden  of  showing  the  chart  under  which  we  obtain  it.  The  whole  trend 
of  scientific  thought  is  against  any  such  propositions.  All  the  best  considered  deliv- 
erances of  the  judiciary  of  the  country  is  against  any  such  proposition.  The  critical 
text  writers  who  have  written  upon  this  subject  condemn  any  such  proposition,  and 
the  whole  legislative  history  of  Virginia  is  against  it.  Mr.  Cooley,  in  his  work  on 
Constitutional  Limitations,  repudiates  it.    He  says: 

But  no  body  of  representatives,  unless  specially  clothed  with  power  for  that  pur- 
pose by  the  people  when  choosing  them,  can  rightfully  take  definite  action  upon 
amendment  or  revision;  they  must  submit  the  result  of  their  deliberations  to  the  peo- 
ple— who  alone  are  competent  to  exercise  the  powers  of  sovereignty  in  framing  the 
fundamental  laTv — for  ratification  or  rejection. 

When  Mr.  Cooley  penned  that  passage,  in  a  work  which  received  this  morning  at 
the  hands  of  the  gentleman  from  Richmond  an  enconium,  and  which  v/as  quoted  by 
him  as  authority,  he  had  before  him  all  the  range  of  judicial  utterances  in  this  country 
from  the  beginning  of  our  history  until  now,  and  his  critical  mind  standing  not  in 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXTIOX  OE  VIEGIXIA. 


3249 


the  llerce  conflict  upon  this  floor  where  povrer  is  to  be  seized  and  exercised,  but  in  the 
serenity  of  calm  and  non-partisan  surroundings  in  commenting  on  them  all,  sums 
them  up  in  the  proposition  that  a  Constitutional  Convention  brought  together  for  the 
purpose  for  which  we  have  been  brought  together,  stands  not  in  the  position  of  abso- 
lute sovereignty,  able  to  work  its  will  for  good  or  ill  upon  the  whole  people  of  the 
State  during  generations;  but  that  it  consists  of  men  with  limited  authority,  whose 
pov/er  is  to  formulate  and  propose  to  the  people  what  they  think  should  be  the  funda- 
mental law,  and  then  submit  the  v%-ork  to  the  people  for  their  ratification  or  rejection. 

I  say,  gentlemen,  that  it  is  necessary  for  us  to  look  at  our  letter  of  attorney.  It 
is  necessary  for  us  to  examine  the  source  of  the  authority  that  has  been  committed  to 
us.  It  is  necessary  for  us  to  look  at  the  commission  which  we  bear,  from  the  people. 
We  must  examine  the  title  deeds  under  which  we  exercise  this  great  power  which  has 
been  entrusted  to  us.  Yv'e  must  see  what  the  limitations  are  that  they  have  placed 
upon  us. 

There  can  be  but  two  sources  of  lawful  power.  Some  gentlemen  say  that  there 
can  be  but  one.  My  friend  from  Richmond  Olr.  Meredith)  argued  this  morning  that 
the  only  source  of  legal  authorit:--  to  change  a  Constitution  of  a  people,  when  the  in- 
strument to  be  changed  has  in  it  a  power  for  its  own  amendment,  is  that  instrument 
itself,  and  that  every  other  power  of  amendment  finds  its  sanction  only  in  revolution. 
In  that  he  disagrees  with  the  great  weight  of  authority.  In  that  he  repudiates  a 
great  principle  v^■hich  lies  at  the  foundation  of  our  State  government — to-wit:  that 
every  power  not  surrendered  in  a  State  Constitution  by  a  people,  is  reserved  to  them, 
and  may  be  exercised  through  their  Legislature. 

If  there  be  a  power  in  a  Constitution  for  its  ovrn  amendment,  then  that  must  be 
only  one,  and  not  the  exclusive  method  of  amendment.  For  example:  Suppose  the 
Constitution  of  Virginia  contained  a  power  that  a  Convention  assembled  under  an  act 
of  assembly,  should  have  the  power  to  make  a  new  Constitution  and  should  have  the 
power  to  proclaim  it;  that  it  need  not  be  submitted  back  to  the  people  for  their  ratifi- 
cation or  rejection.  Suppose  it  provided  further,  that  that  povrer  of  amendment  went 
to  the  extent  of  power  to  change  the  whole  instrument.  Is  it  possible  for  us  to  hold 
for  a  moment  that  the  people  of  this  State  would  not  still  have  the  power  to  send 
a  convention  of  limited  powers  into  this  hall,  which  should  not  possess  the  power 
of  proclamation,  which  should  not  possess  the  povrer  of  destroying  the  Bill  of  Rights; 
which  should  not  possess  the  power  of  abolishing  trial  by  jurj',  but  which  should  be 
bound  by  such  limitations  as  the  Legislature  of  Virginia  should  propose  and  the  people 
of  the  State  should,  by  their  vote,  endorse?  I  say  is  it  possible  to  conclude  that, 
because  a  Constitution  contains  unlimited  power,  that  thereby  it  is  for  all  time,  bind- 
ing upon  the  people  and  upon  their  children  and  their  children's  children  forever, 
that  there  is  no  peaceful  right,  that  there  is  no  legal  power  for  the  people  in  a  peace- 
ful and  legal  way,  assemble  a  convention  with  limited  power  to  make  certain  and 
restricted  change  in  their  Constitution?  My  friend  this  morning,  when  he  was  brought 
face  to  face  with  that  proposition,  said:  There  is  a  power  to  make  limited  changes 
in  the  previous  section  of  this  Constitution.  That  is  merely  begging  this  question. 
For  my  supposition  is  this:  Suppose  there  is  a  Constitution  containing  nothing  but 
unrestricted  power?  Would  it  be  possible  for  a  moment  to  contend  that  there  resides 
nowhere  in  the  people  a  legal  right  to  put  a  restriction  upon  the  agency,  the  men  who 
are  to  change  their  Constitution?  Suppose,  on  the  other  hand,  that  the  only  power 
contained  in  a  Constitution  is  a  ver^*  limited  and  inadequate  one.  Would  there  be  still 
no  power  in  the  people  by  a  peaceful  and  legal  method,  to  assemble  a  Constitutional 
Convention  with  powers  large  enough  for  the  needs  that  might  develop  in  the  judg- 
ment of  these  people?  I  say  in  the  nature  of  things  the  power  contained  in  a  Consti- 
tution for  its  own  amendment  must  be  only  one  of  the  methods  by  which  the  people 
may  act.  It  is  not  the  exclusive  method  by  which  they  must  do  so.  It  is  not  neces- 
sary to  relegate  them  to  revolution  in  order  that  the?'  may  make,  under  the  reserved 
powers  which  they  have,  any  changes  in  the  fundamental  law  which  they  may  find 
necessary  for  their  interest  and  welfare. 


3250  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

If  that  be  so,  then  let  us  see  what  those  two  methods  are.  In  the  first  place,  there 
Is  the  method  which  is  contained  in  their  Constitution. 

The  people  always  have  a  right  to  adopt  that  method.  Any  effort  on  the  part 
of  the  Legislature  to  abridge  it  or  to  destroy  it  is  unquestionably  null  and  void.  That 
power  is  preserved  to  them  as  one  of  the  covenants  which  they  make  with  each  other, 
and  is  available  to  them  for  all  the  time  that  the  Constitution  lasts.  From  a  for- 
getfulness  of  that  proposition,  from  a  failure  to  realize  exactly  the  position  in  which 
we  stand,  seems  to  me  to  grow  much  of  the  confusion  of  thought  which  has  been 
apparent,  at  least  to  my  mind,  in  the  discussion  of  this  question.  If  the  people 
undertake  to  exercise  a  constitutional  method  of  amendment,  then  it  is  beyond  the 
legislative  competency  to  limit  or  destroy  the  constitutional  method.  But  suppose' 
they  do  not  do  that.  Suppose,  that  for  some  reason  in  coming  generations,  that  power 
is  objectionable  to  the  people;  suppose  in  their  changed  condition  it  is  necessary  for 
them  to  exercise  an  enlarged  or  a  restricted  power  of  constitutional  amendment. 
How  do  they  do  that?  They  do  that  by  raising,  through  a  law  proposed  by  the  Legis- 
lature, acquiesced  in  and  ratified  by  the  people,  a  convention  or  some  other  method 
of  constitutional  amendment  and  revision. 

Mr.  Meredith:  I  do  not  know  that  I  exactly  understand  you.  I  think  I  do,  but  I 
wish  to  make  certain.  Do  I  understand  you  to  contend  that  while  there  may  be  in  a 
Constitution  a  prescribed  method  of  procedure  of  amendment  or  revision  by  a  Con- 
stitution, that  that  does  not  limit  the  Legislature  as  to  its  method  of  procedure;  but 
simply  that  if  it  does  take  that  method  it  must  meet  the  prescribed  form?  Is  that 
your  argument?  If  so,  I  v/ould  like  to  ask  this:  Do  you  contend  that  under  the  pres- 
ent Constitution,  that  as  the  Legislature  has  rights  outside  of  that  Constitution  to 
take  such  methods  as  it  may  see  fit,  that  any  Legislature  can  submit  an  amendment 
to  a  Constitution,  and  if  that  effort  is  made,-  could  it  not  be  enjoined  previous  to  its 
adoption?    I  do  not  mean  after  its  adoption,  but  previous  to  its  adoption. 

Mr.  Thorn:  I  do  contend,  Mr.  President,  that  notwithstanding  the  power  in  a 
Constitution  for  its  ov/n  amendment,  the  Legislature  may  inaugurate  steps  for  an 
amendment  by  another  method.  Avxd  I  am  glad  to  be  reminded  by  the  question  of 
tli8  gentleman,  of  a  fallacy  v/liich  it  seems  to  me,  exists  in  his  argument  to-daj^  and 
which,  if  he  had  not  interrupted  me,  I  might  have  overlooked. 

Mr.  Meredith:  Before  you  go  on  v.'ith  that  point,  v/ould  you  mind  answering 
that  part  of  the  question  which  I  put.  Do  you  contend  that  the  Legislature  of  Vir- 
ginia can  submit  an  amendment  to  the  Constitution  when  it  is  only  recommended 
by  one  Legislature,  and  not  by  two? 

Mr.  Thorn:  I  thought  I  had  answered  that.  I  will  say  that  I  think  they  could. 
The  fallacy,  which  seems  to  me,  exists  in  the  gentleman's  position  is  this:  He 
speaks  of  what  the  Legislature  may  do.  He  speaks  as  if  it  were  a  question  of  legis- 
lative interference.  The  question  is  not  what  the  Legislature  may  do,  but  what  the 
people  may  do  through  their  Legislature.  When  the  question  arises  between  the 
Convention  on  the  one  hand  and  the  Legislature  on  the  other,  the  tendency  of  my 
friend's  mind  is  always  to  array  together  the  Convention  and  the  people,  with  the 
Legislature  alone  on  the  other  side. 

Mr.  Glass:  Does  he  mean  to  contend  that  the  people  may  do  anything  the  people 
please  to  do  through  the  Legislature,  notwithstanding  the  fact  that  it  may  be  in  con- 
travention of  the  express  terms  of  the  Constitution? 

Mr.  Thom:  No,  sir;  not  anything  they  may  please  to  do,  but  anything  they  may 
please  to  do  about  the  making  of  their  Constitution;  and  I  will  say  to  my  friend  that 
the  most  striking  argument  I  have  heard  to  show  that  fact,  is  one  which  he  presented 
in  the  first  two  days  in  this  Convention  on  that  very  subject,  and  on  this  very  line. 

My  friend  here,  aroused  to  the  finest  of  his  frenzy,  read  that  clause  in  the  Under- 
wood Constitution,  which  says: 

Provided,  that  no  amendment  or  revision  shall  be  made  which  shall  deny  or  in 


DEBATES  OE  TELE  COXSTITUTIOXAL  COXYEXTIOX  OE  VIEGIXIA. 


3251 


any  way  impair  the  right  of  suffrage  or  any  civil  or  political  right  as  conferred  by 
this  Constitution,  except  for  causes  which  apply  to  all  persons  and  classes  without 
distinction. 

And  my  friend  said  that  he  stood  here  upon  this  floor  superior  to  that  provision, 
and  if  he  was  hound  to  accept  it  and  it  should  he  carried  out,  that  he  would  resign 
his  commission,  and  go  back  to  his  people. 

Mr.  Glass:  My  friend  will  allow  me  to  interrupt  him.  The  point  I  made  there 
was  that  one  Constitutional  Convention  should  not  bind  another  Constitutional  Con- 
vention, and  not  that  a  Constitutional  Convention  could  not  bind  the  action  of  a 
Legislature.    They  are  two  very  different  and  distinct  propositions. 

Mr.  Thorn:  It  is  not  a  Constitutional  Convention;  it  is  a  Constitution,  and  every 
act  of  a  people  in  one  generation  or  at  one  time,  which  attempts  to  fetter  or  destroy 
the  power  of  a  people  to  change  their  government  in  eluj  way  they  see  fit,  is  ultra 
vires  and  void.  If  the  gentlemen  accepts  as  binding  the  provision  of  the  Constitution 
to  which  he  alludes,  he  must  give  up  a  provision  of  the  Bill  of  Rights.  The  Bill  of 
Rights  declares  that  it  is  an  inalienable  right  of  the  people  to  alter  or  amend  or 
change  their  government  in  any  way  they  see  fit. 

Mr.  R.  Walton  3.Ioore:  May  I  say  to  the  gentleman  that  the  proposition  he  is 
now  announcing  is  a  proposition  laid  down  with  great  emphasis  by  the  Mississippi 
cotirt  in  the  authority  relied  on  this  morning  by  the  gentleman  from  Richmond. 

Mr.  Thorn:  Yes,  sir.  It  is  not  only  laid  down  by  the  court  of  Mississippi,  but 
laid  down  by  other  courts  in  the  best-considered  cases  in  this  country. 

Mr.  President,  I  promised  not  to  refer  much  to  authorties;  therefore,  I  am  not 
wearying  you  by  doing  so.  The  authorities  exist  for  these  propositions  I  am  announc- 
ing, but  they  are  so  deeply  set  upon  the  bedrock  foundation  of  truth  and  justice 
and  the  rights  and  just  powers  of  the  people,  that  it  is  unnecessary  to  adduce  any 
authority  in  their  support. 

I  claim,  Mr.  President,  that  no  one  Constitution  has  a  right  lo  fetter,  to  impair, 
or  to  destroy  the  power  of  the  people  to  change  their  constitutional  government  in 
any  way  they  see  proper.  If  that  be  not  true,  then  it  is  time  to  abolish  your  Bill  of 
Rights,  and  to  abandon  the  great  foundation  principles  of  our  government.  We  then 
may  look  for  the  letter  of  attorney  of  this  Convention,  to  one  of  two  sources.  Either 
to  the  Constitution  which,  in  this  case,  contains  a  power  of  its  own  amendment,  or  if 
that  be  not  applicable,  then  we  may  look  to  the  other  possible  source  of  attornerv — • 
an  act  of  the  General  Assembly  ratified  by  the  people.  It  is  not  because  it  is  an  act 
of  the  General  Assembly,  but  because  the  people  have  voted  for  it  and  ratified  it — it  is 
an  act  of  the  people  and  no  longer  an  act  of  the  General  Assembly — we  must  forget 
the  idea  that  the  statute  which  the  people  have  voted  on  and  approved  finds  its  only 
ratification  and  authority  in  the  act  of  the  General  Assembly;  it  becomes  as  soon  as 
voted  on  and  approved  the  act  of  the  people,  as  powerful  and  as  supreme,  as  the  Con- 
stitution of  the  State,  which  springs  only  from  the  same  great  source. 

Now,  let  us  look  at  those  two  possible  sources  of  pov>-er,  and  see  what  our  au- 
thority is. 

First,  the  Constitution.  The  Constitution  provides  that  the  General  Assembly 
shall  submit  to  the  people  of  this  State  the  question,  "Shall  there  be  a  Convention  to 
revise  the  Constitution  and  amend  the  same?"  What  does  that  mean?  What  au- 
thority does  it  confer,  if  any? 

I,  at  one  time,  was  of  the  opinion  that  that  language  conferred  definite  povrer  to 
deal  with  the  Constitution  and  make  it  the  completed  instrument  and  binding  upon 
the  people.  In  that  position,  I  have  been  shaken  hj  study  and  reflection.  The  argu- 
ment in  favor  of  it  is  that  in  the  preceding  section  a  method  is  created  which  is  re- 
quired to  be  submitted  to  the  people,  and  this  section  of  the  Constitution  is  silent  as 
to  whether  the  Constitution  shall  be  submitted  or  not.  That  is  the  argument  in  favor 
of  it.    The  argument  against  it  is  that  it  has  been  construed  to  the  contrary  during 


3252  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

the  whole  legislative  history  of  the  State  of  Virginia.  It  has  been  twice  in  the  history 
of  this  State,  and  at  four  different  terms  of  the  Legislature,  construed  to  have  no 
such  meaning.  In  the  General  Assembly  which  met  in  1827-'28,  the  question  was  sub- 
mitted to  the  qualified  voters  of  the  State:  "Shall  there  be  a  Convention  to  amend 
the  Constitution  of  this  Commonwealth?"  If  the  language  in  our  Constitution — "Shall 
there  be  a  Convention  to  revise  the  Constitution  and  amend  the  same" — confers  the 
power  of  completing  the  instrument  and  making  it  the  final  act  of  the  people,  then 
that  question  submitted  in  1828  vt^as  just  as  final  and  confers  the  power  to  amend  the 
Constitution  and  make  th©  amendment  the  completed  instrument. 

But  what  was  done?  At  the  very  next  session  of  the  Legislature  it  was  pro- 
vided that  the  Convention  which  v^^as  to  assemble  should  consider,  discuss,  and 
propose  a  new  Constitution,  and  that  the  Constitution  that  vv^as  so  adopted  should 
be  submitted  to  the  people  for  ratification  or  rejection.  And  what  did  the  Constitu- 
tional Convention  do? 

Mr.  Robertson:  Will  the  gentleman  please  sta.te  Vv^hether  that  was  done  after  the 
election  had  been  held? 

Mr.  Thorn:  At  that  time  it  vv^as  after  the  election  authorizing  the  call  of  a  con- 
vention, but  before  the  actual  call  was  made.  I  am  speaking  of  the  Convention  of 
1829  novf. 

Mr.  Robertson:  The  second  act  was  passed  after  the  Convention  had  been  called, 
as  I  understand. 

Mr.  Thorn:  What  did  that  Constitutional  Convention  do?  Its  final  act  was  to 
resolve: 

That  the  President  of  this  Convention  do  certify  a  true  copy  of  the  amended 
Constitution  to  the  General  Assembly  now  in  session,  and  that  the  General  Assembly 
be,  and  they  hereby  are,  requested  to  make  any  additional  provisions  by  law  which 
may  be  necessary  and  proper  for  submitting  the  same  to  the  voters  thereby  quali- 
fied to  vote  for  members  of  the  General  Assembly. 

The  very  act  v/hich  required  the  submission,  authorized  the  submission  to  the 
extended  electorate.    And  what  was  done  in  1849-'50? 

Mr.  Glass:  Do  you  contend  that  the  act  was  binding  upon  the  Constitutional 
Convention. 

Mr.  Thorn:  The  point  I  am  arguing  now  is  that  there  has  been  twice  in  the  his- 
tory of  this  State  a  legislative  interpretation  of  whether  the  power  to  amend  was  a 
final  and  definite  power  to  complete  the  amended  instrument  and  not  submit  it  to  the 
people.  And  I  say  that  it  is  again  interpreted  in  the  act  of  1850,  which  provided  that 
"the  question  shall  be  submitted,  'Shall  there  be  a  Convention  to  amend  the  Consti- 
tution of  the  Commonwealth? ' "  and  in  the  very  same  act  which  submitted  that 
question,  it  is  provided  that  "the  persons  who  shall  be  elected  shall  meet  in  conven- 
tion" to  "consider,  discuss,  and  propose  a  new  Constitution,"  and  that  the  work  of 
that  Convention  should  be  submitted  to  the  people. 

So  that  tv/ice  in  the  legislative  history  of  this  State  that  power  to  amend  has 
been  construed  as  not  conferring  final  and  definitive  power,  but  as  being  equivalent 
merely  to  the  pov/er  to  propose  and  submit.  I  will  borrow,  for  this  occasion,  an  argu- 
ment presented  by  the  distinguished  member  of  this  Convention  from  Staunton,  in 
giving  an  illustration  of  what  these  words  mean  when  there  is  a  commission  ap- 
pointed to  revise  and  amend  the  Code.  Such  language,  in  the  connection  just  referred 
to,  is  never  construed  to  give  to  the  commission  appointed,  the  power  to  act  finally 
upon  the  revision  and  amendment,  but  merely  to  submit  their  work  back  to  the  Gen- 
eral Assembly. 

Mr.  Barbour:  In  the  case  just  cited  is  not  that  true  because  the  Legislature 
has  no  pov\^er  to  delegate  its  legislative  authority? 

Mr.  Them:  But  that  does  not  create  the  meaning  of  the  words  "to  revise  and 
amend."    It  is  a  question  of  definition  of  terms,  and  not  a  question  of  power.  Why 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3253 

are  these  same  words  used  in  the  statute  appointing  a  commission  to  revise  and 
amend?  What  do  they  mean?  They  meant  a  restricted  power  when  applied  to  a 
commission  from  the  Legislature.  They  meant  a  restricted  power  in  1829,  when  they 
were  applied  to  a  convention  of  the  State,  and  they  meant  a  restricted  power  in  1850, 
when  likewise  applied  to  a  convention  of  the  State. 

Mr.  Meredith:  Is  it  not  a  rule  of  construction  that  the  language  used  as  confer- 
ring power  in  the  Constitution  would  be  construed  differently  with  the  Legislature 
conferring  it  upon  a  subordinate  body? 

Mr.  Thorn:    I  do  not  think  so. 

Mr.  Meredith:    I  can  give  you  references  on  that  subject. 

Mr.  Thom:  I  do  not  believe  in  the  authority  of  your  references.  I  think  that 
language,  whether  used  in  a  statute  or  in  a  Constitution,  means  the  same  thing,  and 
that  it  will,  if  there  is  any  difference,  be  construed  more  strictly  in  the  Constitution, 
which  is  intended  to  confer  the  great  power  of  life  and  death  of  the  people's  govern- 
ment, than  it  would  be  as  used  in  the  Legislature  of  a  State,  which  is  a  mere  tem- 
porary expedient,  and  can  be  easily  changed  by  the  people. 

But  this  very  language  has  been  interpreted  by  one  of  the  highest  courts  in  this 
country,  where  there  was  one  act  submitting  to  the  people  the  question  of  "whether 
there  should  be  a  Convention  to  amend  their  Constitution,"  and  after  that  question 
had  been  answered  in  the  affirmative,  in  the  next  act,  providing  for  the  election  of 
members  a  requirement  that  the  work  of  the  Convention  should  be  submitted.  The 
language  in  this  first  act  was  held  to  confer,  not  a  definite  and  final  power,  but  simply 
a  power  to  "propose."  Now,  that  being  the  case,  is  there  not  a  doubt,  a  rational  and 
a  reasonable  doubt,  as  to  whether  our  Constitution  confers  a  power  to  finally  act  upon 
these  amendments  which  we  shall  propose.  But,  irrespective  of  that,  I  contend  that 
we  have  cut  ourselves  off  from  following  the  power  contained  in  the  Constitution  by 
the  fact  that  we  have  solemnly  determined  not  to  qualify  under  this  Constitution  by 
taking  the  oath.  The  gentleman  from  Danville  (Mr.  Green),  for  whose  acute  mind 
every  man  in  this  Convention  has  the  highest  respect  and  admiration,  stated  that 
there  was  no  escape  from  the  obligation  to  take  that  oath,  but  to  repudiate  the  au- 
thority of  the  Constitution,  rise  above  it,  and  to  rely  simply  upon  the  reserved  rights 
of  the  people.  I  shall  not  elaborate  that  point.  I  simply  throw  it  out,  as  it  has  been 
already  argued  upon  this  floor.  But  I  say  to  you  that  in  my  judgment  the  refusal  of 
this  Convention  to  take  the  oath  when  they  came  here,  and  to  qualify  under  this  in- 
strument, cut  us  off  from  the  right  to  use  any  of  the  powers  of  this  Constitution,  and 
make  us  look  elsewhere  for  the  legal  powers  which  we  may  exercise. 

Where  does  that  put  us?  It  throws  us  back  upon  the  action  of  the  people  in 
ratifying  the  action  of  the  General  Assembly,  and  the  limits  of  that  action  of  the  people 
is  found  in  the  act  w^hich  originated  this  Convention.  The  first  of  these  acts  sub- 
mitted the  question:  Whether  there  should  be  a  Convention  to  revise  the  Constitution 
and  amend  the  same,  and  as  that,  if  my  argument  is  sound,  does  not  confer  the  power 
to  definitely  act  upon  the  Constitution,  we  must  also  consider  the  next  act,  which  lim- 
ited the  powers  which  we  might  exercise.  The  people  accepted  and  ratified  that  act, 
with  its  limitations  upon  it.  When  we  look,  then,  to  the  source  of  our  authority  and 
find  that  there  has  been  put  into  the  series  of  acts  upon  which  as  a  whole,  we  have  to 
rely  for  our  presence  in  this  chamber,  and  for  our  power,  a  restriction  upon  our  pov/- 
ers.  I  claim  that  it  is  a  most  doubtful  question  whether  we  possess  the  power  of  life 
and  death  to  all  the  highest  rights  of  the  people  and  the  power  by  our  own  arbitrary 
will,  to  destroy  the  form  of  government  of  the  state.    But  I  must  hurry  on. 

There  is  another  point  which  I  want  to  discuss.  I  have  merely  had  an  oppor- 
tunity of  throwing  out  a  general  line  of  thought  on  the  question  of  this  legal  power. 

I  come  now  to  Tvhat  is,  to  me,  a  more  solemn  and  a  more  imperative  considera- 
tion than  any  question  of  la,w.  I  come  now  to  whether  or  not  we  have  the  moral 
right  to  proclaim  this  Constitution.  Gentlemen,  large  powers  have  been  claimed  by 
this  body  as  the  representatives  of  Virginia.    We  have  been  told  that  we  represent 


3254  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

her  sovereignty.  I  cannot  acquiesce  in  that  proposition  except  to  a  limited  degree. 
But  there  can  be  no  question  that  we  represent,  on  this  proposition,  the  morality  of 
the  State.  Our  conception  of  moral  principle  is  going  to  be  the  measure  of  the  public 
standard  of  morality  in  the  State  of  Virginia.  The  morality  of  our  State  should  reach 
its  high-water  mark  in  this  Convention.  If  we  have  a  low  conception  of  what  our 
moral  duty  is,  then  we  cannot  expect  a  high  moral  standard  from  those  people  that 
look  up  to  us,  and  will  follow  in  our  footsteps.  We  find  that  out  of  the  one  hundred 
members  there  are  eighty-eight  Democrats  in  this  Convention.  We  find  that  we  not 
only  have  the  power,  but  the  responsibility,  of  the  work  of  this  Convention.  How 
were  we  sent  into  this  chamber?  Did  we  accept  the  Democratic  nomination?  Did  we 
accept  the  Democratic  help  in  our  election?  If  we  did,  and  if  the  Democratic  party 
has  made  a  pledge,  through  whom  is  that  pledge  to  be  kept  or  broken?  In  whose 
hands  is  it.  Whatever  pledge  the  Democratic  party  has  made,  to  whom  is  it  at  last 
confided.  Who  can  keep  that  pledge  if  we  violate  it?  Who  can  violate  it,  if  we  keep 
it?  A  solemn  responsibility  rests  upon  us.  Let  me  see  whether  one  was  made,  and 
what  that  pledge  is. 

In  Convention  at  Norfolk,  after  two  unsuccessful  attempts  to  secure  from  the 
people  of  Virginia  a  Constitutional  Convention,  these  resolutions  were  adopted: 

Whereas,  the  General  Assembly  of  Virginia  has  submitted  to  a  vote  of  the  people 
the  question  of  the  calling  of  a  Constitutional  Convention,  and  whereas,  it  is  the  evident 
desire  of  the  white  people  of  Virginia  to  amend  and  revise  the  present  Constitution. 

Resolved,  That  the  Democratic  party  in  Virginia,  in  Convention  assembled,  en- 
dorses the  action  of  the  General  Assembly,  and  earnestly  urges  the  people  of  Vir- 
ginia to  vote  on  the  fourth  Thursday  in  May  for  calling  a  Constitutional  Convention. 

Resolved,  That  it  is  the  sense  of  this  Convention  that  in  framing  a  new  Constitu- 
tion no  effort  should  be  made  to  disfranchise  any  citizen  of  Virginia  who  had  a  right 
to  vote  prior  to  1861,  nor  the  descendant  of  any  such  person,  and  that  when  such 
Constitution  shall  have  been  framed  it  shall  be  submitted  to  a  vote  of  the  people 
for  ratification  or  rejection,  and  the  Democratic  party  pledges  that  the  expenses 
incident  to  a  Constitutional  Convention  shall  be  kept  down  to  the  lowest  possible 
figures. 

The  language  "the  people"  is  used  four  times  in  these  resolutions.  In  the  first 
place,  it  recites  that  the  General  Assembly  of  Virginia  has  submitted  to  a  vote  of 
"the  people"  the  question  of  calling  a  Constitutional  Convention.  To  what  people 
was  that  vote  submitted?  To  the  whole  people.  And  in  the  very  next  clause  there  is  a 
distinction  drawn  between  "the  people"  to  whom  it  was  then  submitted,  and  the  "white 
people"  of  this  State,  by  reciting  that  "it  is  the  evident  desire  of  the  white  people 
of  Virginia  to  amend  and  revise  the  present  Constitution." 

In  other  words,  "the  people  had  been  defined  once  as  those  who  had  the  right 
to  vote  on  the  question  of  calling  a  Convention,  and  that  is  immediately  contrasted 
in  the  very  same  sentence  with  the  "whit©  people,"  who  are  thus  defined  as  being 
different  from  the  people  who  were  then  entitled  to'  vote. 

Then  the  resolution  goes  on  to  urge  "the  people"  of  Virginia  to  vote  for  the  call- 
ing of  this  Convention,  meaning  all  the  people  of  Virginia,  and  finally  pledges  that 
the  Constitution,  when  framed,  shall  be  submitted  to  a  vote  of  "the  people"  for  ratifi- 
cation or  rejection — meaning,  at  least  technically,  the  people  to  whom  the  call  had 
been  submitted,  the  people  who  were  invited  to  vote  for  a  Convention,  and  the  people 
who  were  contradistinguished  from  the  white  people  of  the  State. 

So  that,  technically,  I  claim  the  pledge  is  to  submit  this  Constitution  to  the  whole 
people;  but  I  can  well  understand  the  argument  made  here  by  the  gentleman  from 
Lynchburg,  that  it  was  not  intended  to  submit  that  to  the  146,000  negroes.  I  have  no 
quarrel  with  people  who  take  the  other  view  from  myself  on  that  question.  But  I 
say  this:  The  pledge  was  to  submit  the  Constitution  to  some  people,  whether  they 
be  white  people,  or  all  the  people  of  Virginia,  and  the  pledge  was  that  it  should  not 
be  proclaimed.    Whatever  may  be  the  difference  of  opinion  between  us  as  to  the  con- 


DEBATES  OP  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  VIEGimA.  3255 

stituency  to  whom  it  was  to  be  submitted,  it  is  certain  that  there  was  a  pledge  to 
submit  it  to  somebody,  and  that  it  should  not  be  proclaimed.  There  was  then  a  dis- 
tinct pledge  made  by  the  Democratic  party  against  proclamation.  We  may  differ  as 
to  the  constituency  to  whom  the  Constitution  is  to  be  submitted,  but  we  cannot  differ 
on  the  question  that  there  was  a  pledge  against  proclamation. 

Now,  gentlemen,  what  was  the  object  of  that  pledge?  What  Y\^as  the  object  of  put- 
ting it  into  the  resolution?  It  was  to  obtain  the  votes  of  the  people  of  this  State  in 
favor  of  holding  a  Constitutional  Convention.  It  was  put  into  the  platform  under 
which  the  Democrats  of  Virginia  went  into  that  campaign,  and  it  was  put  there  for 
the  purpose  of  securing  the  votes  of  the'  people  of  Virginia  in  favor  of  holding  a  Con- 
stitutional Convention.  And  not  only  that.  It  was  not  put  there  by  chance.  It  was 
not  put  there  by  a  Convention  called  for  some  other  purpose.  In  this  connection  I  invite 
attention  to  the  language  of  the  call  under  which  that  convention  was  assembled.  I 
quote  from  a  speech  delivered  on  this  floor  by  the  gentleman  from  Lynchburg  (Mr. 
Glass) : 

The  chairman  of  the  Democratic  party  in  Virginia  issued  his  official  call,  author- 
ized by  the  State  Central  Commttee,  for  a  convention  to  assemble  at  Norfolk,  and 
in  that  call  he  set  out  two  distinct  propositions.  That  that  convention  was  called: 
for  what  purpose?  For  the  purpose,  first,  of  sending  delegates  to  the  National  Demo- 
cratic Convention  at  Kansas  City;  next,  to  determine  whether  or  not  the  Democratic 
party  should  make  the  call  for  a  Constitutional  Convention  a  party  issue,  and  that 
was  all;  and  that  was  all  the  authority  that  Convention  had  when  it  assembled  at 
Norfolk, 

Therefore,  it  is  impossible  to  claim  that  what  was  done  in  that  Convention  was 
a  matter  beyond  its  power.  It  was  called  for  the  purpose  of  making  this  Convention 
a  party  issue,  and  when  it  was  called  for  that  purpose,  the  Democratic  party  had  a 
right  to  say  upon  what  terms  it  would  make  it  a  party  issue.  The  terms  were  that 
after  the  Convention  assembled  and  completed  its  work,  that  work  should  be  sub- 
mitted to  somebody — either  the  abridged  or  the  unabridged  electorate — but  that  it 
should  be  submitted  to  somebody  for  ratification  or  rejection. 

Now,  gentlemen,  let  me  put  to  you  this  proposition  in  morals:  Many  men  in  your 
State,  perhaps  many  Republicans,  were  persuaded  to  vote  for  the  calling  of  this  Con- 
vention by  the  fact  that  that  promise  had  been  made  by  the  Democratic  party.  Vv^e 
have  got  the  goods.  We  have  got  the  power  which  we  asked  at  the  hands  of  the 
people  of  Virginia.  We  are  in  this  Convention  by  virtue  of  this  pledge.  We  have  had 
delivered  to  us  the  authority  v\^hich  we  asked  upon  condition,  and  if  we  now  break 
that  pledge,  we  can  find  no  justification  in  the  forums  of  morals  or  of  right.  (Ap- 
plause.) Where  is  the  power  to  release  us  from  that  pledge?  Individuals  all  over  the 
State  of  Virginia  were  persuaded  to  deliver  their  voice  in  favor  of  a  Constitutional 
Convention  by  that  promise — not  only  individuals,  but  communities  v/ere  persuaded 
to  cast  their  votes  to  put  this  power. in  our  hands.  Where  is  the  power  to  release  us 
from  our  pledge  to  those  individuals  and  communities?  Gentlemen  claim  that  they 
can  have  their  constituents  meet  in  their  separate  localities  and  that  those  constitu- 
ents can  release  them.    Let  us  examine  that  proposition. 

Suppose  the  county  of  Mecklenburg  (represented  here  by  my  friend  sitting  near  me) 
and  the  city  of  Norfolk  constituted  the  whole  of  the  State  of  Virginia.  Suppose  that 
the  city  of  Norfolk  had  been  consistently  trying  to  have  a  Constitutional  Convention, 
and  that  the  county  of  Mecklenburg  had  been  consistently  opposing  it,  because  it 
feared  the  power  that  harm  might  be  done  by  the  Convention  when  assembled.  Sup- 
pose, under  these  circumstances,  that  Norfolk  and  Mecklenburg  should  meet,  and  Nor- 
folk should  say  to  the  county  of  Mecklenburg:  "If  you  will  vote  for  a  Constitutional 
Convention,  I  pledge  you  that  the  result  of  its  work  shall  be  submitted  to  our  joint 
vote  for  ratification  or  rejection.  Suppose  then,  that  the  county  of  Mecklenburg  did 
vote,  under  that  pledge,  for  a  Constitutional  Convention,  and  after  the  Convention 


3256  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

was  held  the  city  of  Norfolk  were  to  meet  and  attempt  to  violate  its  pledge.  I  ask 
you  if  the  city  of  Norfolk  does  not,  under  these  circumstances,  have  an  obligation  to 
the  county  of  Mecklenburg  which  the  city  of  Norfolk  cannot  relieve  itself  of  without 
the  consent  of  the  county  of  Mecklenburg_  I  go  further  than  that.  I  say  there  are 
individuals  all  over  the  State  of  Virginia  whose  votes  were  obtained  by  that  promise. 
Men  in  the  county  of  Prince  William,  men  in  the  county  of  Fairfax,  men  in  the  county 
of  Appomattox,  and  everywhere,  were  persuaded  to  vote  for  this  Constitutional  Con- 
vention in  reliance  on  that  pledge.  I  say  further,  gentlemen,  that  there  is  no  political 
power  resident  in  any  part  of,  or  in  the  whole  party,  after  obtaining  votes  under  that 
pledge  to  meet  and  repudiate  it,  and  after  they  have  gotten  the  goods  to  decline  to  pay 
the  price  they  promised.  Gentlemen,  this  is  a  solemn  pledge,  and  neither  a  man  nor 
a  party,  nor  a  people,  can  do  anything  but  one,  with  a  pledge,  and  that  is  to  keep  it. 
(Great  applause.) 

Mr.  Meredith:  Since  you  have  undertaken  to  discuss  the  moral  question  I  would 
like  to  say  this:  It  was  stated  by  the  gentleman  from  Pulaski  when  we  were  in 
the  building  across  the  way  that  he  had  on  several  occasions  asked  you  as  to  whether 
you  were  in  favor  of  submitting  or  proclaiming  the  Constitution,  and  that  you  de- 
clined to  answer  until  after  the  passage  of  one  of  the  articles  of  the  Constitution — I 
forget  which  article  it  was — and  that  then  for  the  first  time,  you  expressed  your  views 
that  it  was  wrong  to  submit  it.    Is  that  correct? 

Mr.  Thom:  You  had  better  ask  the  gentleman  from  Pulaski  for  the  explanation 
he  gave  me.  He  said  that  I  went  to  him  and  consistently  said  from  the  beginning 
that  there  was  neither  a  legal  nor  a  moral  right  to  proclaim.  I  do  not  remember  the 
details  of  the  conversations  at  all;  .but  I  do  remember  this:  That  I  said  in  the  early 
part  of  the  sessions  of  this  Convention  when  there  was  a  question  between  the  two 
electorates,  that  I  was  not  ready  to  consider  or  determine  the  question  at  that  time, 
and  that  I  would  not  take  up  or  consider  the  powers  of  the  Convention  until  I  had 
seen  the  Constitution.  I  would  not  be  willing  to  proclaim  except  under  one  condition — 
under  the  condition  that  would  justify  me,  in  my  opinion,  in  taking  my  musket  on 
my  shoulder,  raising  a  new  flag,  and  making  a  revolution  in  this  country.  (Applause.) 

Mr,  Meredith:  But  what  I  wish  to  know  is  whether  there  has  been  a  change  of 
view  on  your  part  in  regard  to  submission,  as  stated  by  the  gentleman  from  Pulaski. 

Mr.  Thom:    Not  at  all.    There  has  been  no  change. 

Mr,  Glass:  Would  the  gentleman  be  kind  enough  to  tell  me  what  he  meant  by 
this  language  which  he  employed  in  discussing  the  oath  question  in  the  early  stages 
of  the  Convention: 

When  the  members  have  qualified  the  Convention  is  a  competent  body  without 
restriction  on  its  powers  to  change  the  present  Constitution, 

Mr.  Thom:  That  is  just  what  I  explained  a  few  moments  ago  when  I  said  that 
at  one  time  I  thought  the  Constitution  conferred  the  power  to  proclaim;  but  that  sub- 
sequent investigation  and  consideration  led  me  to  believe  that  it  did  not.  I  explained 
that  a  moment  ago. 

Mr,  Glass:  I  beg  the  gentleman's  pardon.  I  knew  that  in  the  early  stages  of  the 
Convention  he  took  the  contrary  view,  and  I  went  to  the  records  just  now  to  get  his 
exact  language.    I  was  out  of  the  hall  v/hen  he  made  his  explanation, 

Mr.  Westcott:  I  v/ish  to  ask  the  gentleman  a  question,  and  as  interruptions  have 
taken  up  so  much  of  his  time,  I  will  move  to  grant  him  an  extension  of  his  time. 

Mr.  Thom:    I  will  soon  be  through,  and  I  will  be  glad  to  hear  your  question. 

Now,  gentlemen,  I  have  nearly  finished.  I  want  it  to  be  understood  that  I  have 
arraigned  no  man  who  differs  from  me  on  this  moral  question,  I  do  not  undertake 
to  be  the  keeper  of  my  brother's  conscience,  I  have  lived  with  the  members  of  this 
Convention  now  for  more  than  ten  months.  I  know  that  they  are  high-minded  men. 
I  know  that  they  have  high  and  patriotic  purposes.    There  are  men  on  the  other  side 


DEBATES  OF  THE  COXSTITrTIOXAL  COXTEXTIOX  OE  YIEGIXIA. 


3257 


of  this  moral  question  for  Tvhose  honor  I  would  stake  my  life.  I  may  illustrate  by 
one  man  particularly,  a  man  near  vrhom  I  ^ras  bom,  who  was  the  companion  and 
friend  of  my  childhood  and  my  early  manhood,  and  my  friend  to-day,  and  who  has 
never  had  a  dishonest  thought.  He  thinks  differently  on  this  question  from  the  views 
which  I  entertain.  I  bow  before  his  splendid  character,  and  do  not  arraign  him  for 
that  difference.  But,  gentlemen,  this  is  a  question  so  plain  to  me,  so  absolutely  within 
the  region  of  plain  morality,  so  far  as  I  am  concerned,  that  I  cannot  help  being  actuated 
by  the  considerations  which  I  have  expressed.  I  cannot,  for  myself,  accept  that  view 
of  morality,  which,  at  any  time  or  anywhere,  will  result  in  the  violation  of  a  sacred 
pledge,  and  one  for  which,  as  in  this  case,  a  valuable  consideration  has  been  given. 

I  want  to  warn  this  Convention  that  the  time  may  come  when  other  people  than 
ourselves,  and  with  less  high  purposes  than  ours,  may  assemble  in  constitutional  con- 
vention in  this  State.  The  very  fact  that  we  have  made  a  wlolation  of  this  pledge  may 
be  used  as  an  argument  by  others  who  may  one  day  be  in  power.  They  may  claim 
that  they  have  the  right,  which  we  are  now  claiming  for  ourselves,  to  proclaim  a 
Constitution  ruinous  to  our  civilization.  TVhat  answer  shall  we  make  to  them  when 
they  exercise  that  power,  and  they  say  to  us,  ■■You  not  only  exercised  that  power,  but 
you  wiolated  a  sacred  pledge  in  order  to  do  it."  Lei  us  remember,  gentlemen,  that 
we  must  set  a  high  example  to  the  young  men  in  this  State  in  the  matter  of  our 
morality,  in  the  matter  of  sacred  regard  for  our  pledges.  Let  us  not  for  one  moment 
violate  them.  Let  us  not  go  out  of  this  hall  with  what  some  of  us  believe,  the  blight 
and  curse  of  broken  pledges  on  us,  but  when  we  come  to  vote,  as  we  are  now  about 
to  do,  let  us  reflect  that  righteousness  exalteth  a  nation,  but  that  the  sin  of  wiolated 
faith  is  a  reproach  to  any  people.    f.Great  applause.) 

Mr.  Glass:  Mr.  President,  I  know  it  is  the  order  of  this  Convention  that  we  shall 
proceed  to  take  a  vote  upon  this  question  at  half  after  five  o'clock,  and  if  the  members 
of  the  Convention  insist  upon  the  observance  of  that  order  I  shall  not  interrupt  at 
this  stage.  But  if  I  may  be  permitted  for  the  space  of  five  minutes  to  indicate  to 
this  Convention  briefly  what  my  attitude  is  upon  this-  question,  I  would  be  obliged  to 
the  Convention  for  the  courtesy. 

'Mt.  President,  it  was  not  my  purpose  to  say  one  word  upon  this  question, 
as  I  have  stated  my  views  fully  some  months  ago,  when  the  subject  was  first 
brought  to  the  attention  of  the  Convention.  I  would  not  now  say  anything  except 
that  within  the  last  few  days  gentlemen  have  risen  here  and,  while  disclaiming  any 
purpose  to  be  critical  in  what  they  should  say,  have,  as  a  matter  of  fact,  arraigned 
those  of  us  who  differ  with  them  from  a  moral  standpoint.  Gentlemen  who  now  see 
so  plainly  their  line  of  duty  that  they  stand  amazed  that  anybody  here  may  differ  from 
their  conception  of  morality,  said  months  ago:  """^ait  until  I  can  see  your  Constitution 
before  I  determine  whether  I  shall  vote  for  proclamation  or  submission."  (Applause.) 

So  far  as  I  am  concerned,  it  will  be  recalled  that  I  stated  in  the  very  beginning 
that  I  did  not  want  to  see  your  Constitution  in  order  to  determine  my  attitude  on  the 
question  of  submission.  I  declared  then  that  no  body  of  Virginia  gentlemen  could 
frame  a  Constitution  so  obnoxious  to  my  sense  of  right  and  morality  that  I  would  be 
willing  to  submit  its  fate  to  146,000  ignorant  negro  voters  (great  applause)  whose 
capacity  for  self-government  we  have  been  challenging  for  thirty  years  past.  I  said, 
furthermore,  that  I  would  never  frame  a  Constitution  that  any  Virginian  might  rea- 
sonably desire  to  submit  to  the  arbitrament  of  such  an  electorate. 

Now,  Mr.  President,  when  I  was  elected  a  member  of  this  Convention  there  was 
no  mistake  about  the  issue.  My  able,  distinguished  and  popular  competitor  stated  his 
position.  He  gave  to  the  Xorfolk  pledge,  so-called,  the  same  interpretation  that  my 
friend  Rere  (Mr.  Thoml  now  gives  it.  I  took  issue  with  him  squarely,  and  telegraphed 
from  my  bed  of  sickness  in  the  State  of  Xew  York,  that  I  would  not  desire  to  represent 
a  constituency  which  would  commission  me  to  come  to  Richmond  for  the  avowed  pur- 
pose of  disfranchising  a  people  whose  enfranchisement  we  had  denoiinced  as  the 
20.5 — Const.  Deb. 


3258 


DEBATES  OF  THE  CONSTITUTIOiSrAL  CONVENTION  OF  VIRGINIA. 


crime  of  the  century  for  thirty  years,  and  then  require  me  to  submit  the  work  of  this 
body  to  their  arbitrament. 

Mr.  Thom:  My  friend  is  referring  to  me  as  putting  an  interpretation  on  this 
pledge.  Did  he  hear  me  say  that  I  had  no  quarrel  with  any  man  who  chose  either  one 
of  the  electorates,  but  that  I  was  opposed  to  the  views  of  anybody  who*  supposed  when 
we  said  "submit"  to  the  people  we  meant  proclaim? 

Mr,  Glass:    I  did  not  hear  my  friend  when  he  made  that  statement. 

Mr.  President,  my  five  minutes  have  expired.      ("Go  on!    Go  on!  ") 

The  President:  The  Secretary  will  read  the  amendment  offered  by  the  gentle- 
man from  Rockingham. 

Resolved,  That  the  roll  shall  be  called,  and  as  each  member's  name  is  called,  he 
shall  announce  his  vote,  either  for  submission  to  the  present  electorate,  for  submis- 
sion to  the  electorate  provided  under  the  proposed  new  Constitution,  or  for  proclama- 
tion, as  he  may  elect. 

If  at  the  conclusion  of  the  roll  call,  neither  of  these  propositions  receive  the 
votes  of  a  majority  of  all  the  members  elected  to  the  Convention,  then  the  proposi- 
tion receiving  the  least  number  of  votes  shall  be  dropped,  and  the  vote  shall  be  taken 
as  between  the  remaining  two  propositions,  the  one  receiving  the  votes  of  a  majority 
of  all,  elected  to  prevail. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Rockingham  (Mr.  Keezell.) 

Mr.  Flood:  I  accept  the  amendment  offered  by  the  gentleman  from  Rockingham 
as  a  substitute  for  my  own,  and  withdraw  mine. 

The  President:  The  question  is  on  agreeing  to  the  amendment  offered  by  the 
gentleman  from  Rockingham  (Mr.  Keezell). 

The  question  having  been  taken,  the  result  was  announced — ayes,  41;  noes,  47 — as 
follows: 

Ayes — Messrs.  Allen,  Anderson,  Manly  H.  Barnes,  Blair,  Bolen,  Braxton,  Bristow^ 
Brooke,  Cameron,  Campbell,  C.  J.;  Campbell,  *P.  W.;  Chapman,  Davis,  Earman,  Eggles- 
ton,  Flood,  Gilmore,  Gwyn,  Hancock,  Harrison,  Ingram,  Keezell,  Lincoln,  Marshall, 
Moncure,  Moore,  R.  Walton;  Moore,  Thomas  L.;  O'Flaherty,  Pedigo,  Pettit,  Phillips, 
Richmond,  Rives,  Robertson,  Smith,  Summers,  Thom,  Thornton,  Waddill,  Wise,  and 
Wysor — 41. 

Noes — Ayers,  Barbour,  Barliam,  Thos.  H.  Barnes,  Boaz,  Brown,  Carter,  Cobb,  Cris- 
mond,  Dunavv^ay,  Epes,  Fletcher,  Garnett,  Glass,  Gordon,  B.  T.;  Gordon,  James  W.;  Gor- 
don, R.  L.;  Green,  Gregory,  Hardy,  Hatton,  Hooker,  Jones,  Clagget  B.;  Jones,  G.  Wj 
Kendall,  Lawson,  Lindsay,  Lovell,  Mcllwaine,  Meredith,  Mundy,  Orr,  Parks,  Pollard, 
Portlock,  Quarles,  Stebbins,  Tarry,  Turnbull,  Walker,  Walters,  Watson,  Willis,  Withers, 
Woodhouse,  Yancey,  and  the  President — 47. 

The  following  pairs  v/ere  announced: 

Mr.  George  K.  Anderson  with  Mr.  Miller;  Mr.  Hamilton  with  Mr.  Westcott. 

The  first-named  gentleman  in  each  instance  v/ould  have  voted  in  the  affirmative. 

Mr.  Gillespie:  On  the  main  question  under  consideration  I  am  paired  with  the 
gentleman  from  Russell  (Mr.  Stuart).  I  voted,  and  I  ask  leave  to  withdraw  my  vote 
under  the  circumstances. 

Mr.  Daniel:  I  have  a  general  pair  with  the  gentleman  from  Fauquier  (Mr.  Hun- 
ton)  ;  and  I  withdraw  my  vote  for  similar  reasons  to  those  given  by  the  gentleman 
from  Tazewell  (Mr.  Gillespie). 

The  amendment  was  rejected. 

The  President:  The  question  recurs  on  the  first  proposition  stated  in  the  resolu- 
tion offered  by  the  gentleman  from  Campbell  (Mr.  Daniel),  which  the  Secretary  v/ill 
read.  ^ 

Shall  the  Constitution,  framed  by  this  body,  be  submitted  to  the  whole  elect- 
orate, as  now  constituted,  for  ratification  or  rejection. 


The  following  pairs  were  announced: 


DZBAIZ5  or  THE  COXSIIirilOXAL  COXVZXIIOX  or  YIECtIXIA. 


3259 


:Mr.  Daniel  vith.  Mr.  Hunton;  Mr.  R.  WalTon  Moore  with  Mr.  Fairfax;  Mr.  TVaddill 
with  Mr.  Bouldin;  Mr.  Hooker  with  Mr.  Vincent;  Mr.  George  K.  Anderson  with  Mr. 
Miller;  Mr.  Gillespie  with  Mr.  Stuart;  Mr.  Hamilton  with  Mr.  Westcott. 

The  first-named  gentleman  in  each  instance  would  have  voted  in  the  affirmative. 

The  question  having  been  taken,  the  result  was  annotmced — ayes,  33;  noes,  52 — as 
follows: 

Ayes— Allen.  Anderson,  W.  A.;  Blair.  Bolen,  Bristow,  Brooke,  Campbell,  C.  J.; 
Campbell,  P.  W.;  Chapman,  Crismond,  Davis,  Earman,  Flood,  Gilmore,  Gwyn,  Hancock, 
Harrison,  Keezell,  Lincoln,  Marshall,  Moore,  Thomas  L.;  O'Flaherty,  Pedigo,  Pettit, 
Phillips,  Portlock,  Rives.  Robertson.  Smith,  Summers,  Thom,  Y^ise,  Wysor — 33. 

Xoes — ^Ayers,  Barbour,  Barham,  Barnes,  Manly  H.;  Barnes,  Thomas  H.;  Boaz, 
Braxton,  Brown,  Cameron,  Carter,  Cobb,  Dunaway,  Eggleston,  Epes,  Fletcher,  Gar- 
nett,  Glass.  Gordon,  B.  T.;  Gordon,  James  Vr.;  Gordon.  R.  L.;  Green,  Gregory,  Hardy, 
Hatton,  Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Kendall.  Lawson,  Lindsay,  Lovell, 
Mcllwaine,  Meredith,  Moncure,  Mundy,  Orr.  Parks.  Pollard.  Quarles.  Richmond.  Steb- 
bins,  Tarry,  Thornton,  Turnbull,  Walker,  TTalter,  TVaison,  Willis,  Withers,  Woodhouse, 
Yancey,  and  the  President — 52. 

The  first  branch  of  the  resolution  was  rejected. 

The  President:  The  question  is  now  on  the  second  proposition  contained  in  the 
resolution. 

Shall  the  Constitution,  framed  by  this  body,  be  submitted  to  the  electorate  pro- 
vided for  in  said  Constitution  for  ratification  or  rejection. 

The  Question  hawing  been  taken,  the  result  was  annoimced — ayes,  24;  noes,  5S — as 
follows: 

Ayes — Manly  H.  Barnes.  Bolen.  Brooke,  Cameron.  C.  J.  Campbell.  Chapman,  Epes, 
Glass.  Gwyn,  Hancock,  Harrison.  Hooker,  Ingram,  Lovell.  Moncure,  Pettit,  Pollard, 
Portlock,  Rives.  Smith.  Thom.  Thornton.  Watson,  and  Wise — 2-i. 

Xoes — Allen,  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barham.  Thomas  H. 
Barnes.  Blair,  Boaz,  Braxton.  Bristow,  Brown.  Campbell,  P.  W.:  Carter.  Cobb,  Cris- 
mond. Davis,  Dunaway,  Eggleston.  Fletcher.  Flood,  Garnett,  Gilmore,  B.  T.  Gordon, 
James  W.  Gordon,  R.  L.  Gordon,  Green.  Hattcn.  Claggett  B.  Jones.  G.  W.  Jones.  Kee- 
zell, Kendall.  Lawson,  Lincoln.  Lindsay.  Marshall,  Mcllwaine.  Meredith,  Thomas  L. 
Moore,  Mundy,  O'Flaherty.  Orr,  Parks.  Phillips,  Quarles,  Richmond.  Robertson.  Steb- 
bins.  Tarry,  Turnbull.  Waddlll.  Walker,  Walter,  Willis.  Withers,  Woodhouse,  Wysor, 
Yancey,  and  the  President — 5S. 

The  following  pairs  were  announced: 

Mr.  Barbour  with  Z\Ir.  Vincent:  :Mr.  Hunton  with  Mr.  Daniel;  Mr.  Gregory  with 
Mr.  Bouldin;  Mr.  R.  Walton  Moore  with  Mr.  Fairfax;  Mr.  Hamilton  with  Mr.  Westcott. 

The  first-named  gentleman  in  each  instance  would  have  voted  in  the  affirmative. 

Mr.  Gillespie:  I  desire  to  say  that  upon  this  question,  if  Mr.  Stuart  were  pres- 
ent, he  would  vote  ''nay."  He  is  paired  with  me.  but  I  decline  to  vote  upon  the  ques- 
tion at  all.    Therefore,  I  suppose  neither  vote  should  be  counted. 

The  second  proposition  of  Mr.  Daniel's  resolution  was  rejected. 

The  President:  The  vote  wiU  now  be  taken  upon  the  third  proposition  contained 
in  the  resolution,  which  the  Secretary  will  read. 

Shall  the  Constitution,  framed  by  this  body,  be  ordained  by  this  Convention? 

The  question  having  been  taken,  the  result  was  annotmced — ayes,  47;  noes,  3S — as 
follovrs: 

Ayes — Ayers.  Barbour,  Barham.  Thomas  H.  Barnes,  Boaz.  Braxton.  Brown.  Camp- 
bell. P.  W. :  Carter,  Cobb,  Dunaway,  Eggleston.  Fletcher,  Garnett.  Gordon,  B.  T.;  Gor- 
don. James  W. :  Gordon.  R.  L.:  Green,  Gregory.  Hardy.  Hatton.  Ingram.  Jones,  Clag- 
gett B,:  Jones,  G.  W.;  Kendall.  Lawson,  Lindsay,  Lovell,  Mcllwaine,  Meredith,  Mundy, 


3260 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


Orr,  Parks,  Pollard,  Quarles,  Richmond,  Stebbins,  Tarry,  Thornton,  Turnbull,  Walker, 
Walter,  Willis,  Withers,  Woodhouse,  Yancey,  and  the  President — 47. 

Noes — Allen,  W.  A.  Anderson,  Manly  H.  Barnes,  Blair,  Bolen,  Bristow,  Brooke, 
Cameron,  Campbell,  C.  J.;  Chapman,  Crismond,  Davis,  Earman,  Epes,  Flood,  Gilmore, 
Gwyn,  Hancock,  Harrison,  Hooker,  Keezell,  Lincoln,  Marshall,  Moncure,  Moore,  Thomas 
L;  O'Flaherty,  Pedigo,  Pettit,  Phillips,  Portlock,  Rives,  Robertson,  Smith,  Summers, 
Thorn,  Watson,  Wise  and  Wysor — 38. 

The  following  pairs  were  announced: 

Mr.  George  K.  Anderson  with  Mr.  Miller;  Mr.  Hun  ton  with  Mr.  Daniel;  Mr.  Stuart 
with  Mr.  Gillespie;  Mr.  Fairfax  with  Mr.  R.  Walton  Moore;  Mr,  Bouldin  with  Mr. 
Waddill;  Mr.  V/estcott  with  Mr.  Hamilton. 

The  first-named  gentleman  in  each  instance  would  have  voted  in  the  aflSirmative. 

The  third  proposition  of  Mr.  Daniel's  resolution  was  agreed  to. 

Mr.  R.  Walton  Moore  offered  the  following  resolution  which  was  referred  to  the 
Committee  on  Final  Revision: 

Resolved,  That  as  it  has  been  determined  to  proclaim  the  Constitution,  provision 
should  be  made  for  its  recognition,  when  adopted,  by  the  political  departments  of  the 
government,  and  to  that  end  the  General  Assembly  should  be  convened  at  an  early  date. 

On  motion  of  Mr.  Withers,  the  Convention  adjourned  until  to-morrow.  May  30,  1902, 
at  10  o'clock  A.  M. 


FRIDAY,  May  30,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  Jere  Witherspoon,  D.  D.  ' 

LIMITATION  OF  DEBATE. 

Mr.  Barbour:  Mr.  President,  I  offer  the  following  resolution,  and  ask  its  immedi- 
ate consideration: 

Resolved,  That  in  considering  the  draft  of  the  new  Constitution  as  reported 
from  the  Committee  on  Revision  and  Schedule,  speeches  be  limited  to  three  minutes. 

The  resolution  was  agreed  to. 

FINAL   REVISION   AND  ADJUSTMENT. 

Mr.  William  A.  Anderson:  Mr.  President,  T  move  that  the  report  of  the  Commit- 
tee on  Final  Revision  and  Adjustment  of  the  Various  Provisions  of  the  Constitution, 
and  upon  the  Schedule,  with  the  accompanying  redraft  of  the  Constitution  reported 
by  that  committee,  be  taken  from  the  table  and  considered  by  the  Convention,  section 
by  section,  and  article  by  article. 

(At  this  point  Mr.  Walker  took  the  Chair.) 

The  Presiding  Officer:  The  Chair  understands  that  the  report  of  the  Committee 
on  Final  Revision,  being  a  report  of  one  of  the  standing  committees,  would,  under 
the  rules,  go  before  the  Committee  of  the  Whole.  Does  the  gentleman  move  to  sus- 
pend that  rule? 

Mr.  William  A.  Anderson:  Yes,  sir;  for  this  purpose  I  move  to  suspend  the  rules. 
The  motion  was  agreed  to. 

Mr.  William  A.  Anderson:  Mr.  President,  I  have  but  a  few  Vv^ords  to  say  in  pre- 
senting this  report  to  the  Convention.  The  Convention  has  wisely  adopted  an  order 
limiting  the  debate,  and  I  shall  endeavor  not  to  transcend  the  limJts  prescribed  in 
that  resolution. 


DEBATES  or  THE  COXSTITL'TIOXAL  COXVEXTIOX  OF  VIEGIXIA. 


3261 


The  vrork  v>-hicli  was  devolved  upon  the  Committee  on  Revision  by  the  Conven- 
tion involved  careful,  painstaking  and  exhaustive  examination  of  the  text  of  the  Con- 
stitution as  adopted  by  the  Convention.  I  may  say  for  that  committee  that  with  the 
utmost  diligence  and  earnestness  it  devoted  itself  to  that  duty  and  that  its  work, 
I  hope,  will  speak  for  the  fidelity  and  carefulness  of  the  examination  which  they 
gave  to  the  language  of  the  Constitution  as  adopted  by  the  Convention.  It  proved 
to  be  a  much  more  serious  and  laborious  undertaking  than  was  supposed  by  any 
member  of  the  committee,  or  perhaps  by  any  member  of  the  Convention. 

Xo  more  valuable  service  can  well  be  done,  in  connection  with  formulating  ordi- 
nary legislation,  and  still  more  in  connection  with  the  formulation  of  the  organic 
law  for  a  Commonwealth  than  that  which  is  devolved  upon  a  Committee  upon  Har- 
mony. Revision  and  Adjustment.  The  proper,  the  clear,  the  concise  expression  of 
the  will  of  the  Convention  is  what  is  to  be  desired,  and  what  can  rarely  ever  be 
accomplished  by  any  deliberative  body  where  the  different  propositions  are  amended, 
perhaps,  in  the  heat  of  debate  without  due  consideration  as  to  the  language  of  the 
provision,  and  sometimes  by  reason  of  the  want  of  such  consideration  the  harmony 
of  the  instrument  is  disturbed  and  ic  fails  to  express  the  real  sentiment  of  the  body 
that  adopted  it. 

In  the  discharge  of  its  duty  the  committee  had  presented  to  them  as  a  model 
that  wonderful  achievement  of  the  human  intellect  and  human  genius,  the  Constitu- 
tion of  the  United  States,  perhaps,  not  only  in  its  substance  but  in  its  form,  the 
most  admirable  instrument  that  ever  came  from  finite  minds.  We  could  not  hope 
to  achieve  any  such  great  success  in  the  discharge  of  the  duty  devolved  upon  us  as 
was  accomplished  by  the  Committee  on  Revision  and  on  Harmony,  appointed  by 
the  Convention  which  sat  in  Philadelphia,  and  framed  the  Constitution  of  the  United 
States.  Many  of  us  supposed,  and  I  supposed  until  comparatively  recently,  that 
James  Madison,  Alexander  Hamilton.  John  Jay.  and  James  Wilson,  and  other  great 
jurists  and  statesmen  and  lawyers  in  that  Convention  formulated  that  instrument. 
But  while  it  was  largely  the  product  of  the  minds  of  those  great  men,  its  language 
and  style  are  largely  the  work  of  Gouverneur  ]\Iorris. 

When  you  take  the  original  draft  of  the  Constitution  as  it  went  to  that  Com- 
mittee upon  Revision,  and  compare  it  with  the  draft  as  it  came  from  that  commit- 
tee, at  a  glance  you  can  realize  the  enormous  service  that  has  been  done  to  the 
States  of  this  Union  and  to  the  world  by  the  faithful  and  able  discharge  of  its  duty 
by  the  Committee  on  Revision,  of  which  Gouverneur  ]\Iorris  was  the  most  efficient 
member. 

Your  committee  had  this  illustrious  example  before  them,  as  an  incentive  to 
earnest  efforts  to  accomplish  similar  results.  They  could  not  hope  to  attain  any 
such  degree  of  perfection  as  was  achieved  by  their  distinguished  exemplars,  but 
my  colleagues  on  the  committee,  to  whom  we  are  indebted  for  whatever  of  improve- 
ment has  been  accomplished  in  the  text  or  style  of  the  instrument,  have  labored 
sedulously  to  make  its  language  as  clear,  as  concise  and  as  truly  expressive  of  the 
purposes  of  the  Convention  as  possible. 

Without  further  words  of  introduction.  Mr.  President,  I  beg  leave  to  submit  the 
report  of  the  committee  and  revised  draft  of  the  Constitution  to  the  Convention, 
which  I  ask  may  now  be  read,  article  by  article  and  section  by  section. 

The  Bill  of  Rights  was  then  taken  up  and  read  section  by  section  by  the  Secre- 
tary. 

The  sections  down  to  and  including  Section  38  were  read.  Slight  verbal  changes 
were  made,  and  unimportant  amendments  adopted,  in  certain  instances  without  mate- 
rially changing  the  report  of  the  committee. 

PERSONAL  PRIVILEGE. 

'Mr.  Thom:  ^.Ir.  President,  I  rise  to  a  question  of  personal  privilege.  I  under- 
stand that  in  the  remarks  I  made  on  yesterday,  I  woimded  the  sensibilities  of  some 


3262  DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

of  the  gentlemen  upon  this  floor.  I  greatly  regret  that  any  such  impressions  have 
arisen  from  anything  I  said.  Certainly  it  was  not  my  intention.  I  attempted  to  im- 
press upon  my  fellow-members  the  fact  that  I  intended  to  neither  question  or  to 
arraign  anybody's  motives,  character  nor  patriotism.  I  was  presenting  the  views 
which  were  controlling  on  me,  and  expressly  stated  that  I  did  not  intend  to  reflect 
on  those  who  differed  from  me. 

While  adhering  to  my  own  views  of  the  question,  so  far  as  it  affects  and  relates 
to  myself  and  my  action,  I  wish  to  emphasize  the  fact  that  I  did  not  intend  to  im- 
peach the  morality  or  high  character  of  any  one  of  my  fellow-members,  or  to  ques- 
tion the  sincerity  or  honesty  of  his  conclusions. 

I  have  reviewed  the  stenographic  notes  of  my  remarks,  and  while  I  think  they 
fully  exculpate  me  from  any  invidious  criticism  of  my  fellow-members,  I  have  taken 
the  liberty  of  modifying  some  of  the  language  so  as  to  remove  any  possibility  of  a 
construction  that  might  be  personally  offensive  to  any  one.  My  feelings  towards  the 
members  of  this  Convention  are  those  of  great  personal  cordiality  and  high  personal 
regard,  and  I  shall  be  greatly  pained  if  I  have  wounded  them,  or  any  of  them,  in 
any  way.  (Applause.) 

Mr.  Glass:  Mr.  President,  on  yesterday,  when  the  final  vote  upon  the  question 
of  proclaiming  or  submitting  the  Constitution  was  taken,  owing  to  a  misunderstand- 
ing with  a  member  of  the  Convention  as  to  how  he  and  I  should  vote  upon  that 
question,  I  asked  and  was  granted  leave  to  withdraw  my  vote.  After  a  subsequent 
conference  with  that  member  I  am  at  liberty  to,  and  do  now  ask  that  my  name  be 
recorded  upon  the  official  record  as  having  voted  in  favor  of  proclamation.  (Ap- 
plause.) 

The  hour  of  2  o'clock  having  arrived,  the  Chair  was  vacated  until  4  o'clock  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  Mr.  Walker  in  the 
Chair. 

When  the  hour  for  adjournment  came,  the  various  sections  down  to  Section  55 
had  been  considered. 

The  Convention  then  adjourned  until  to-morrow.  May  31,  1902,  at  10  o'clock  A.  M. 


SATURDAY,   May  31,  1902. 

The  Convention  met  at  10  o'clock  A.  M. 
Prayer  by  Rev.  W.  T.  Derieux,  D.  D. 

The  Secretary  called  the  roll  and  sixty-one  delegates  answered  to  their  names. 

HOUR  OF  MEETING. 

Mr.  Barbour:    I  move  that  when  the  Convention  adjourn  to-day  at  2  o'clock,  it 
adjourn  to  meet  at  12  o'clock  on  Monday. 
The  motion  was  agreed  to. 

The  remainder  of  the  day's  session  was  taken  up  with  a  consideration  of  the 
report  of  the  Committee  on  Pinal  Revision  and  the  discussion  of  immaterial  amend- 
ments to  the  various  sections. 

The  hour  of  adjournment  having  come,  the  Convention  adjourned  until  Monday, 
June  2,  1902,  at  12  o'clock  M. 


The  report  of  the  Committee  on  Final  Revision  and  Adjustment  was  considered  in 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIKGINIA. 


3263 


Convention  June  2,  3,  4,  5  and  6,  and  various  amendments  to  the  report  were  discussed 
and  adopted. 

The  Committee  on  Printing  and  Reporting  v/ere  authorized  to  revise  and  print  the 
debates  of  the  Convention. 

The  Constitution,  as  revised,  was  adopted  as  the  organic  law  of  the  State,  June  6, 
by  the  following  vote: 

Ayes — Messrs.  Allen,  George  K.  Anderson,  W.  A.  Anderson,  Ayers,  Barbour,  Bar- 
ham,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Boaz,  Bolen,  Bouldin,  Braxton,  Brooke, 
Brown,  Cameron,  C.  J.  Campbell,  P.  W.  Campbell,  Carter,  Chapman,  Cobb,  Crismond, 
Daniel,  Dunaway,  Eggleston,  Epes,  Fairfax,  Fletcher,  Flood,  Garnett,  Gilmore,  Glass, 
B.  T.  Gordon,  James  W.  Gordon,  R.  L.  Gordon,  Green,  Gregory,  Gv/yn,  Hamilton,  Han- 
cock, Hardy,  Harrison,  Hatton,  Hooker,  Hubbard,  Hun  ton,  Ingram,  Claggett  B.  Jones, 
G.  W.  Jones,  Keezell,  Kendall,  Lawson,  Lindsay,  Lovell,  Marshall,  Mcllwaine,  Meredith, 
Miller,  Moncure,  R.  Walton  Moore,  Mundy,  O 'Flaherty,  Orr,  Parks,  Pettit,  Pollajd, 
Portlock,  Quarles,  Richmond,  Rives,  Robertson,  Smith,  Stebbins,  Stuart,  Tarry,  Thorn, 
Thornton,  Turnbull,  Vincent,  Waddill,  Walker,  Walter,  Watson,  Wescott,  Willis,  Wise, 
¥/ithers,  Woodhouse,  Wysor,  Yancey  and  the  President — 90. 

Noes — Messrs.  Blair,  Bristow,  Davis,  Earman,  Gillespie,  Lincoln,  Thomas  L.  Moore, 
Pedigo,  Phillips  and  Summers — 10. 

Mr.  Lindsay:    Mr.  President,  I  desire  to  offer  the  following  resolution. 

Resolved,  That  a  copy  of  the  specially  bound  Constitution,  and  also  a  copy  of  the 
debates  of  the  Convention,  should  they  be  printed  by  the  Convention,  be  presented  to 
each  of  the  newspaper  reporters  who  have  regularly  reported,  for  their  respective 
papers,  the  proceedings  of  the  Convention. 

The  resolution  was  agreed  to. 

Mr.  Quarles:  I  move  that  the  Constitution,  as  adopted,  be  referred  to  the  Com- 
mittee on  Enrollment. 

The  schedule  Vv^as  completed  and  adopted,  after  which  the  Convention  adjourned 
until  June  7.  r 

At  the  session,  June  7,  the  Convention  considered  the  ordinance  providing  for 
registration  of  voters  under  the  new  Constitution,  and  prior  to  1904.  After  consider- 
able discussion  it  was  adopted,  when  the  Convention  adjourned  until  June  25,  1902. 


WEDNESDAY,  June  25,  1902. 

The  Convention  met  at  12  o'clock,  meridian. 
Prayer  by  Rev.  W.  R.  L.  Smith,  D.  D. 

Mr.  Hunton:    Mr.  President,  I  offer  the  following  resolution. 

Resolved,  That  the  members  of  the  Committee  on  Printing  and  Reporting  are 
hereby  appointed  as  revisers  of  the  proceedings  of  the  Convention  and  are  empowered 
to  hereafter  take  such  steps  as  may  be  necessary  to  carry  out  such  revision  as  was 
authorized  by  the  resolution  of  the  Convention  adopted  on  Thursday,  June  5th,  and  to 
make  such  contracts  as  are  therein  authorized. 

2d.  That  the  Treasurer  of  the  State  is  hereby  instructed  and  required  to  pay  such 
warrants  as  may  be  drawn  upon  him  for  the  payment  of  the  work  so  authorized. 

The  resolution  was  agreed  to. 

TESTIMONIAL  TO  PRESIDENT. 

Mr.  Cameron:  Mr.  President,  I  desire  to  ask  that  you  vacate  the  chair  for  a  few 
moments,  and  invite  the  gentleman  from  Rockbridge  to  assume  your  functions. 
(Laughter.) 


3264  DEBATES  OP  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

Mr.  Cameron:    I  take  great  pleaure  in  offering  the  following  resolution,  which 
I  desire  may  be  read  from  the  clerk's  desk. 
The  Secretary  read  as  follows: 

Resolved,  That  the  thanks  of  the  Convention  are  hereby  extended  to  the  Honorable 
John  Goode,  president  of  this  body,  for  the  great  ability,  fairness,  and  efficiency  which 
he  has  exhibited  in  the  discharge  of  his  duties,  with  our  hearty  good  wishes  for  his 
health,  happiness,  and  prosperity. 

Mr.  Daniel:  Mr.  President,  there  is  no  need  for  any  individual  member  of  the  con- 
vention to  second  the  resolution  which  has  just  been  offered,  for  I  am  quite  sure  that 
it  truly  interprets  the  sense  of  every  member  of  this  body,  to  whatever  party  he  may 
belong.  This  is  probably  the  last  time  that  I  shall  have  the  honor  to  address  the  Chair 
during  the  continuance  of  the  session  of  the  Constitutional  Convention,  and  in  doing 
so,  it  is  very  grateful  to  me  to  recognize  the  pleasing  part  I  have  to  perform,  and  for 
which  I  take  this  to  be  a  suitable  opportunity. 

I  rise,  sir,  on  behalf  of  my  colleagues  of  this  body  to  present  to  the  president  of 
this  Convention  a  token,  which  I  hold  in  my  hand.  It  is  a  gold  watch  and  chain.  Upon 
the  watch  is  inscribed.  "  To  the  Honorable  John  Goode,  President  of  the  Constitutional 
Convention  of  Virginia,  of  1901-'2;  With  the  Affection  and  Esteem  of  His  Colleagues." 

The  decorum  of  this  convention,  Mr.  President,  has  not  been  exceeded  by  that  of 
any  legislative  body  that  ever  assembled  in  this  Commonwealth.  No  stings  have  been 
implanted  here  in  any  heart  which  were  not  instantly  withdrawn.  Whatever  untimely 
word  may  have  been  uttered  by  any  member  in  the  heat  of  debate,  has  long  since  been 
like  the  clouds  which  pass  over  us,  and  are  remembered  no  more.  While  xMz-  result  is 
due,  and  must  be  attributed  to  the  high  character  of  the  gentlemen  who  are  members 
of  this  body,  we  must  also  recognize  the  reinforcement  which  we  have  had  in  our  happy 
choice  of  a  presiding  officer;  and  in  paying  my  poor  tribute  to  the  ability,  the  fairness, 
the  courtesy  and  the  unfailing  sense  of  duty  which  has  characterized  him,,  I  know  that 
I  express  not  only  the  thought  of  his  colleagues,  but  that  of  the  people  of  this  State, 
who  have  witnessed  their  labors. 

Mr.  Goode,  it  is  my  privilege,  sir,  to  hand  you  that  token  of  esteem  and  affection 
of  your  colleagues.  You  have  been  our  timekeeper  while  we  have  been  here,  and  we 
hope  that  this  type  of  our  regard  may  long  be  yours.  You  have  had  a  long  life,  in  which 
you  have  borne  the  character  which  Virginia  most  esteems — that  of  an  honest  man 
who  sought  only  to  do  his  duty.    (Great  applause.) 

We  are  glad  to  know  and  to  receive  the  assurance  in  your  own  vigorous  form  and 
pleasing  countenance,  that  your  labors  may  be  yet  extended  for  many  years;  certainly 
it  is  the  devout  wish  of  those  who  have  shared  them  here  that  such  may  be  the  case. 
And  vv^hen  the  years  have  more  and  more  thickened  upon  you,  we  trust  that  your  re- 
ference to  this  token  may  revive  sweet  memories  of  your  service  here,  and  that  you 
,may  then  find  an  old  age  serene  and  bright  and  lovely  as  an  arctic  night.  (Great  ap- 
plause.) 

The  Acting  President:  The  Question  is  on  agreeing  to  the  resolution  offered  by  the 
gentleman  from  Petersburg. 

The  resolution  was  unanimously  agreed  to. 

Mr.  Goode:  Gentlemen  of  the  Convention,  I  am  unable  to  find  words  with  which 
adequately  to  express  my  sincere  and  unaffected  thanks  for  the  resolution  of  com- 
mendation and  approval  which  you  have  just  been  pleased  to  adopt.  Nothing  should  be 
more  gratifying  to  any  public  officer  in  any  capacity  than  to  receive  the  approbation  of 
those  whom  he  has  been  called  upon  to  serve. 

When  I  had  the  honor  to  be  chosen  to  preside  over  your  deliberations  it  was  my 
highest  ambition  to  meet  all  your  just  expectations  and  to  measure  up  fully  to  all  the 
requirements  of  the  responsible  position.  In  the  administration  of  the  duties  of  the 
Chair,  I  am  fully  ^ware  that  I  have  committed  errors;  but  you  have  kindly  overlooked 
them  all,  and  if  I  have  achieved  any  measure  of  success  as  your  presiding  officer  it  has 


DEBATES  OF  THE  COXSTITUTIOXAL  COXVEXTIOX  OF  YIEGIXIA. 


3265 


been  due  more  to  your  generous  support  than  to  any  merit  of  my  own.  From  the 
commencement  of  your  sessions  to  the  present  hour  I  have  received  nothing  but  kind- 
ness and  courtesy  at  your  hands.  To  have  presided  acceptably  over  a  body  like  this 
is  an  honorable  distinction  of  which  I  am  very  proud,  and  I  shall  cherish  it  until 
memory  shall  cease  . to  perform  its  functions.  In  the  discharge  of  the  delicate  and 
responsible  duties  devolved  upon  you  by  a  confiding  people,  you  have  encountered  many 
difficult  problems,  but  you  have  addressed  yourself  to  the  task  of  their  solution  with  a 
resolute  spirit,  a  patriotic  purpose,  and  an  eye  single  to  the  prosperity  and  welfare 
of  the  State.  While  engaged  in  the  discussion  of  great  questions  involving  the  most 
momentous  interests,  well  calculated  to  call  into  action  the  highest  energies  of  human 
nature  and  the  noblest  powers  of  the  human  intellect,  you  have  not  only  exhibited 
extraordinary  research  and  consummate  ability,  but  you  have  uniformly  extended  to 
your  adversaries  in  debate  the  most  knightly  courtesy.  As  I  have  not  participated  in 
the  debates,  I  may  be  permitted  to  say,  without  violating  the  proprieties  of  the  oc- 
casion, that  in  learning,  ability,  and  eloquence,  I  have  never  known  them  to  be  sur- 
passed in  any  deliberative  assembly  with  which  I  have  been  acquainted. 

It  is  true  that  you  have  not  escaped  altogether  from  adverse  criticism  (laughter)  — 
nor  was  that  to  be  expected.  In  a  country  like  ours  and  under  institutions  such  as  we 
enjoy,  the  freest  and  fullest  discussion  of  public  men  and  public  measures  always 
exerts  a  wholesome  and  salutary  influence.  But  unawed  by  threats  and  unseduced  by 
blandishments,  you  have  moved  forward  fearlessly,  courageously^  and  faithfully  in  the 
path  of  duty,  and  the  people  of  Virginia,  always  just,  fair-minded,  and  tolerant,  will 
make  the  due  allowances  for  the  Intrinsic  difficulties  of  the  situation,  and  Vvill  not  be 
swift  to  condemn  their  own  chosen  representatives,  who  have  shown  a  willingness  to 
make  personal  sacrifices  in  their  behalf. 

And  now,  gentlemen,  permit  me  to  congratulate  3'ou  most  cordially  upon  the  suc- 
cessful termination  of  your  long  and  arduous  labors,  and  the  accomplishment  of  a  great 
work,  not  only  for  yourselves,  but  for  your  children  and  your  children's  children.  Under 
our  revised  and  amended  Constitution  I  confidently  believe  that  this  ancient  and  re- 
nowned Commonwealth  will  enter  upon  a  new  career  of  prosperity  and  glory — that  not 
unmindful  of  the  traditions  of  the  past  she  will  turn  her  face  toward  the  morning  of 
a  new  existence,  a  morning  that  betokens  a  dSLj  of  strenuous  life,  of  industrial  growth, 
of  material  development,  of  commercial  greatness,  of  political  purity,  and  peace  and 
happiness,  now  and  forever.    (Great  applause.) 

And  now,  gentlemen,  what  shall  I  say''  What  can  I  say  in  appropriate  recognition 
of  the  beautiful  gift  just  presented  to  me?  I  prize  it  nor  only  on  account  of  its  intrinsic 
value,  but  for  the  kindly  sentiment  it  represents,  and,  permit  me  to  say,  that  I  am 
especially  gratified  by  the  gracious  words  that  have  fallen  from  the  lips  of  the  spokes- 
man, the  gifted  and  patriotic  delegate  from  Campbell,  the  silver-tongued  orator  of  Vir- 
ginia, the  idol  of  his  people,  and  an  ornament  to  his  State,  which  he  has  served  so  long 
in  peace  and  war.  (Great  applause.)  Approbation  from  Sir  Hubert  Stanley  is  praise 
indeed.  (Applause.) 

And  now,  gentlemen,  in  taking  leaA'e  of  you  (the  time  has  not  yet  come,  but  it  will 
soon  come  when  we  must  part  for  a  time  at  least,  it  may  be  forever) ,  in  taking  my  leave, 
I  desire  to  express  the  sincere  prayer  and  heartfelt  wish  that  3'ou  may  one  and  all 
return  in  safety  to  your  homes  and  your  customary  avocations;  that  the  remainder  of 
your  lives  upon  earth  may  be  attended  with  health  and  happiness;  and,  finally,  that  you 
may  enjoy  that  perfect  peace  vrhich  remaineth  for  the  people  of  God.    (Great  applause.) 

The  President  here  resumed  the  chair. 

RESOLUTION  OF  THANKS. 

l\lv.  Thorn:  Mr.  President,  I  ask  leave  to  offer  the  following  resolution,  which  I 
will  take  the  liberty  to  read: 

Resolved.  That  the  thanks  of  this  Convention  be,  and  the  same  hereby  are,  tendered 
to  Colonel  Joseph  Button,  the  Secretary  of  the  Convention,  for  his  uniform  courtesy 


3266  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION"  OF  VIRGINIA. 

and  for  bis  fidelity  and  ability  in  the  performance  of  his  exacting  and  honorable  duties,' 
with  the  request  that  he  receive  from  the  Convention  its  assurance  of  the  affectionate 
regard  and  esteem  of  all  its  members. 

The  resolution  was  unanimously  agreed  to. 

The  Committee  on  Enrollment  made  its  report,  which  was  amended  slightly  and 
agreed  to. 

On  motion  of  Mr.  Lindsay  the  members  of  the  Convention  were  requested  to  sign 
the  engrossed  copy  of  the  Constitution. 

On  motion  of  Mr.  Fairfax  the  Convention  adjourned  until  to-morrow,  Thursday, 
June  26,  1902,  at  10  o'clock  A.  M. 


THURSDAY,  June  26,  1802. 

The  Convention  met  at  10  o'clock,  A.  M. 

Mr.  Turnbull:    I  offer  the  following  resolution: 

Resolved,  That  the  thanks  of  the  Convention  be  and  they  are  hereby  tendered  to 
F.  B.  Watkins,  the  Sergeant-at-Arms,  and  A.  O.  Sullivan  and  P.  E.  Lipscomb,  Door- 
keepers of  the  Convention,  for  the  efficient  manner  in  which  they  have  discharged  the 
duties  of  theiir  res°pective  positions. 

The  resolution  was  adopted. 

Mr.  Meredith:  Mr.  President,  it  will  be  remembered  that  before  the  adjournment 
of  the  Convention  for  the  purpose  of  having  the  Constitution  enrolled,  I  offered  a  reso- 
lution in  reference  to  the  adjournment  of  the  Convention. 

Owing  to  the  change  of  circumstances,  I  ask  that  the  following  resolution  may  be 
substituted  for  the  resolution  which  I  offered  at  that  time,  and  I  ask  for  its  immediate 
consideration. 

Resolved,  That  when  the  Convention  adjourns  to-day  it  shall  adjourn  subject  to  the 
call  of  the  President  of  the  Convention,  or  in  case  of  his  inability,  subject  to  the  call 
of  the  President  pro  tempore,  or  in  case  of  the  inp^bility  of  both,  the  President  and  the 
President  pro  tempore,  subject  to  the  call  of  the  Governor  of  the  State  of  Virginia,  if 
in  the  opinion  of  the  officer  making  such  call  the  reassembling  of  the  Convention  be 
necessary  in  order  to  put  in  more  perfect  operation  the  Constitution  proclaimed  by 
this  Convention  as  of  the  10th  day  of  July,  1902,  or  for  any  other  important  matter 
which  may  arise  thereunder;  provided,  however,  that  if  no  such  call  be  made  prior  to 
the  first  day  of  January,  1903,  this  Convention  shall  then  stand  adjourned  sine  die. 

Mr.  President,  it  may  be  recalled  that  when  the  first  draft  of  that  resolution  was 
offered  it  was  just  a  few  hours  before  the  adjournment  of  the  Convention  for  its  recess. 
I  stated  then  that  I  would  call  it  up  at  the  proper  time.  I  further  stated  that  while  I 
was  aware  that  such  a  resolution  as  that  might  be  liable  to  criticism  by  some,  who 
would  undertake  to  say  that  we  were  expressing  a  doubt  or  intimating  a  fear  that  our 
views  as  to  our  power  of  proclamation  were  not  very  confident,  we  did  not  think  that 
we  should  be  guided  by  views  of  that  kind,  and  that  a  thing  so  immaterial  as  that 
ought  not  to  affect  our  determination  in  voting  upon  a  question  of  so  much  importance. 

I  will  say  merely  a  word  or  two,  Mr.  President,  in  regard  to  the  resolution.  1 
think  it  is  extremely  desirable  that  we  should  do  everything  possible  to  carry  out 
the  object  for  which  we  were  called  here.  Many  of  us  have  absolute  confidence  in 
the  views  that  we  expressed  as  to  our  power  to  proclaim  the  Constitution. 

Mr.  T.  L.  Moore:  Will  the  gentleman  permit  me  to  interrupt  him?  I  would  like 
'to  offer  a  substitute  for  his  resolution,  so  that  he  can  discuss  them  both  at  the  same 
time. 

The  President:    The  Secretary  will  read  the  proposed  substitute. 
Resolved,  That  when  the  Convention  adjourn  to-day  it  adjourn  sine  die. 


DEBATES  OF  THE  COXSTITrTIOXAL  COXVEXTIOX  OE  VERGIXIA. 


326; 


Mr.  iMerediili:  That  states  the  issue,  ]\Ir.  President.  The  question  is  \vhether 
or  not  it  is  v."ise  for  us  to  do  as  I  suggest. 

We  certainly  have  precedents  set  us  by  the  conventions  of  another  State  at  least, 
if  not  more  than  one.  We  know  that  Kentucky,  in  its  last  two  conventions,  took  exactly 
the  course  now  suggested  of  keeping  the  Convention  assembled  until  the  people  had 
voted  on  the  Constitution. 

^Ir.  Wise:  In  the  case  of  Kentucky,  did  not  the  act  of  the  Legislature  provide 
that  it  might  do  that? 

]\Ir.  Meredith:  That  may  be  so.  sir.  It  is*  perfectly  immaterial  to  me  what  the 
act  of  the  Legislature  provided.  My  colleague  from  Richmond  seems  to  give  ver^- 
great  force  to  the  act  of  the  Legislature  in  regard  to  the  powers  of  a  Constitutional 
Convention.  I  differ  with  him  so  widely  upon  that  point  that  it  seems  to  me  I  need 
not  be  affected  by  that  question  whether  it  be  answered  yes  or  no.  I  do  not  believe  it 
would  be  necessary  for  the  Legislature  to  pass  any  act  in  relation  to  the  powers  of  a 
Constitutional  Convention.  I  say  that  it  does  not  make  any  difference  whether  the 
Legislattire  or  the  Convention  saw  the  wisdom  of  that  course.  As  a  matter  of  prac- 
tical v>-isdom.  the  last  two  conventions  of  the  State  of  Kentucky  were  kept  in  existence 
and  being  until  the  people  had  voted  upon  and  ratified  the  Constitution,  and  after  that 
the  Convention,  seeing  that  there  had  been  some  omission  or  some  error  committed, 
saw  fit  to  modify  and  change  that  Constitution  in  both  instances.  It  may  not  be 
necessary  for  us  to  do  that:  it  may  not  be  necessary  for  us  to  reconvene;  but  I 
respectfully  submit  that,  as  we  are  taking  a  course  as  to  our  powers  of  proclamation, 
which  has  been  so  earnestly  combated  here  by  able  men,  that  it  is  simply  a  practical 
view  to  take  of  it.  that  we  should  still  keep  onrselves  in  position  to  do  what  we  were 
sent  here  to  do — to  give  a  Constitution  to  the  people  of  this  State. 

I  do  not  myself  fear  the  result  of  any  litigation  of  that  kind.  but.  Mr.  President, 
there  is  no  telling  what  difficulty  we  may  find  otirselves  in.  There  is  no  telling  what 
view  the  L'nited  States  conrts  may  take  about  the  matter,  and  therefore  I  say  that 
simply,  as  a  matter  of  wisdom,  we  should  take  such  a  course  as  will  protect  the  people 
of  the  State. 

Mr.  0 "Flaherty:  Do  you  not  think  if  the  Republican,  or  any  one  inimical  to  this 
Constitution,  saw  fit  to  test  the  validity  of  the  ordinance  or  provision  as  to  the  suffrage 
law,  knowing  that  we  will  be  adjourned  by  limitation  on  the  1st  day  of  January,  1903, 
will  simply  defer  action  until  that  time? 

]\Ir.  Meredith:  I  do  not.  I  think  aftei  a  Constitution  has  been  in  force  and  effect, 
and  in  operation,  recognized  by  all  the  departments  of  the  State  Government  for  six 
months,  and  under  the  operation  of  which  members  of  Congress  shall  have  been 
elected,  it  will  be  a  little  too  late  for  any  effort  to  be  made  to  upset  that  Constitution. 
Therefore,  I  think,  in  fixing  the  1st  of  January,  1903,  as  the  day,  we  have  given  ourselves 
sufficient  time  to  afford  an  opportunity  to  see  whether  any  difficulty  will  grow  out  of  it. 
or  whether  any  eft'ort  will  be  made  to  defeat  it.  I  fixed  that  date  for  the  reason  that 
I  did  not  think  it  wise  that  we  should  go  too  far  into  the  future,  but  that  we  should  fix 
a  reasonable  time  within  which  we  should  declare  ourselves  adjourned  sine  die.  I 
think  six  months  will  give  us  ample  time  to  ascertain  what  is  going  to  be  done. 
At  the  same  time,  i^.Ir.  President,  if  it  should  turn  out  that  in  the  mind  of  yourself,  or 
in  the  mind  of  the  officer  who  should  see  fit  to  call  the  Convention  together  again,  any 
danger  should  be  seen  lurking  in  the  future,  we  could  be  reconvened  and  adjourn  after 
another  six  months,  and  if  we  thought  necessary,  we  should  have  the  power  to  remain 
longer  in  session.  The  mere  fact  that  I  have  fixed  the  1st  day  of  January,  1903,  does 
not  prevent  us  from  continuing  our  existence  for  another  six.  or  another  twelve, 
months,  if  necessity  shotild  arise.  I  do  not  think  it  wise  that  we  should  now  fix  the 
date  so  far  in  the  future  as  to  render  ourselves  liable  to  comment  as  existing  too  long. 
I  think  the  date  is  a  reasonable  one.  because  it  gives  sufficient  time  to  ascertain 
whether  an  effort  to  defeat  the  Constitution  will  be  made,  and  at  the  same  time  we  will 
have  the  opportunity  to  continue  in  existence,  so  that  if  in  the  future  any  such  danger 
should  arise  we  can  remedy  it. 


3268 


DEBATES  OF  TPIE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


I  wish  to  say  one  word  more,  Mr.  President,  and  then  I  shall  have  finished.  I  do 
not  believe  there  is  a  lawyer  within  the  sound  of  my  voice  who  in  the  practice  of  his 
profession  would  hesitate  to  follow  just  this  line  of  conduct  in  order  to  protect  a  private 
client.  A  lawyer  would  never  risk  an  important  action  simply  upon  one  line  of  defence, 
however  confident  he  might  be  as  to  the  facts,  or,  in  his  opinion,  of  the  law.  If  he 
had  an  opportunity  to  pursue  a  course  that  would  render  doubly  certain  the  chances 
of  success  of  his  client,  he  would  unhesitatingly  pursue  it. 

I  respectfully  submit,  Mr.  President,  in  a  matter  of  this  importance  it  is  even 
more  our  duty  to  pursue  such  a  line  of  conduct  than  it  would  be  in  private  affairs.  It  is 
our  duty  to  see  that  under  no  circumstances  shall  this  Constitution  be  defeated,  and' 
we  should  take  any  course  to  avoid  that,  no  matter  what  sneers  others  may  indulge 
in  upon  the  theory  that  we  are  afraid  of  what  we  have  done.  We  should  take  such  a 
course  as  will  render  absolutely  certain  that  the  people  will  get  this  Constitution  one 
way  or  another. 

Mr.  Dunaway:  Let  me  ask  you  whether  you  are  contemplating  danger  coming  to 
the  Constitution  on  account  of  its  proclamation  or  from  some  other  source? 

Mr.  Meredith:  In  any  way,  sir.  There  may  be  something  that  may  arise  and  be 
apparent  in  the  operation  of  it,  that  would  be  bad.  There  may  be  something  that 
would  arise  in  the  mean  time.  The  suffrage  clause  might  be  declared  unconstitutional 
by  the  United  States  courts,  and  you  would  then  have  an  opportunity  of  framing  another 
clause.  I  believe  it  to  be  our  duty  to  remain  in  session  here,  so  that  we  could  take  what 
action  might  become  necessary. 

Mr.  Dunaway:  Mr.  President,  in  regard  to  this  matter,  there  are  just  two  or  three 
things  I  wish  to  say.  In  the  first  place,  I  believe  that  the  instrument  that  has  been 
framed  by  this  body  is  an  impregnable  one,  and  that  if  this  resolution  should  be 
adopted  we  will  ourselves  be  expressing  an  unnecessary  fear  in  regard  to  the  soundness 
of  the  instrument  itself,  and  in  regard  to  the  action  of  the  Convention  in  proclaiming 
the  Constitution.  I  feel  perfectly  satisfied  that  the  Constitution  which  we  have 
adopted  is  not  obnoxious  to  any  provision  of  the  Constitution  of  the  United  States. 
I  will  not  discuss  that  question  at  large.  It  is  unnecessary.  I  believe  there  was 
full  power  in  this  body  to  proclaim  this  Constitution,  and  I  have  no  fear  from  either 
one  of  these  sources.    Therefore,  I  feel  that  the  proposed  action  is  unnecessary. 

Then,  again,  in  regard  to  the  time  that  is  fixed — the  1st  of  next  January — I  submit, 
if  we  are  to  pass  this  resolution  at  all  it  ought  to  be  for  a  longer  time.  If  I  were  an 
enemy  of  this  Constitution  (as  I  am  a  friend  of  it)  I  would  put  off  any  attack  that  I 
desired  to  make  against  this  Constitution,  provided  this  resolution  is  adopted,  until 
after  that  time  had  expired. 

If  this  body  is  to  perpetuate  its  own  existence  in  order  that  it  may  continue  to 
look  after  the  well-being  of  the  Constitution,  the  time  ought  to  be  extended,  not  simply 
to  next  January,  but  for  a  term  of  years. 

But  my  chief  objection  to  the  resolution  is  this: 

I  do  not  believe  that  this  Convention  has  the  legal  rights  and  authority  to  adopt 
the  resolution,  and  I  cannot  vote  for  it  unless  some  gentleman  here  can  remove  the 
legal  objection  that  is  in  my  mind.  That  objection  is  this:  The  Constitution  is  to 
go  into  effect  on  the  19th  day  of  next  month.  When  it  is  gone  into  effect  it  is  a  per- 
fected instrument,  and  it  binds  the  members  of  this  Convention  as  much  as  it  does  any 
other  citizen  in  the  Commonwealth.  We  have  the  authority  to  amend  and  revise  the 
old  Constitution,  but  I  submit  that  we  cannot  put  a  new  instrument  into  effect,  place 
it  beyond  our  powers  by  so  doing,  and  still  attempt  to  retain  a  power  that  has  never 
been  given  us  by  the  people  of  Virginia — the  power  to  revise  and  amend  a  Constitu- 
tion that  has  already  gone  into  effect.  If  this  does  go  into  effect,  then  whatever  may 
come  of  it,  it  will  be  for  the  people  of  Virginia,  by  calling  another  convention,  to  repair 
any  wrongs  or  to  resist  any  attacks  that  may  be  made  upon  it.  But  this  is  just  as  if 
you  should  attempt  to  launch  a  new-made  vessel,  and  still  retain  it  on  the  stocks.  It 
gets  beyond  our  power,  I  submit,  just  as  soon  as  it  goes  into  full  effect  arid  virtue, 


DEBATES  OF  THE  COXSTITUTTOXAL  COXTEXTIOX  OE  VLRGIXIA. 


and  we  have  no  further  control  over  it.  I  will  not  attempt  to  amplify  my  remarks 
upon  this  subject,  and  to  go  fully  into  the  discussion  of  it,  but  that  is  the  legal  objec- 
tion in  my  mind,  and  I  cannot  vote  for  this  resolution  unless  some  gentleman  will 
kindly  remove  it  from  my  mind. 

Mr.  Wise:  Mr.  President,  I  care  very  little  whether  the  resolution  offered  by  my 
colleague  shall  be  adopted  or  not.  I  do  not  propose  to  detain  the  Convention  in  the 
discussion  of  the  question,  but  simply  to  state  that  I  shall  vote  against  the  resolution, 
because  I  th-nk  we  have  no  right  to  perpetuate  our  existence  as  a  Constitutional  Con- 
vention. The  gentleman  has  made  the  statement  that  there  was  a  precedent  for  such 
action.  I  call  his  attention  to  the  fact  that  the  States  to  which  he  referred  had  pro- 
vided that  the  conventions  in  those  States  might  do  that  very  thing.  There  is  no  such 
provision  in  the  act  which  called  us  into  existence. 

But  this  is  not  the  reason  why  I  oppose  this  resolution.  The  gentleman  from 
Richmond  stated  it  himself,  and  that  is  that  we  were  called  here  for  a  specific  purpose, 
which  purpose  was  to  irf.me  a  Constitution  for  Virginia.  We  have  framed  it  and  we 
liave  proclaimed  it.    Our  work  is  done,  and  we  are  functus  officio. 

Mr.  Meredith:  Suppose  it  should  be  held  that  the  suffrage  clause  was  unconsti- 
tutional, have  we  done  our  vrork  then?  Suppose  it  should  be  held  that  we  had  no 
power  to  proclaim,  would  we  have  done  our  work? 

3.1r.  Wise:  I  do  not  think,  sir,  you  have  a  right,  after  proclaiming  the  Constitution, 
to  make  another  Constitution  for  Virginia,  whatever  may  be  the  decisions  of  the  courts 
in  the  future. 

Mr.  Meredith:    My  question  was,  whether  we  had  done  our  work  in  that  event? 

Mr.  Vise:  You  have  not  done  it.  You  have  done  it  improperly.  You  have  made 
a  mistake  and  that  is  exactly  the  difficulty  here.  The  gentlemen  who  proclaimed  the  Con- 
stittition  are  doubtful  a?  to  whether  they  had  the  power  to  do  so.  and  now  they  vrant 
to  wait  and  see  what  will  be  the  action  of  the  court.  But  as  I  say  I  do  not  want  to  go 
into  the  discussion  of  this  question.  I  vrish  simply  to  say  that  I  shall  vote  against 
the  resoltition.  because  in  my  opinion  this  Com-ention  has  no  right  to  perpetuate  itself. 
As  said  by  the  gentleman  from  Richmond  himself,  although  he  had  specified  the  1st  of 
January.  1903.  it  did  not  necessarily  follow  that  there  was  to  be  an  adjournment  sine  die 
on  that  day.  He  said  we  might  prolong  ourselves  six  months  after  that.  Yes,  and 
after  that  you  might  prolong  yourselves  for  six  months  more.  Yoti  may  prolong  your- 
selves for  ten  years  or  twenty  years.  Where  is  your  right  to  do  that?  You  have 
performed  the  work  for  which  you  were  commissioned  to  act  for  the  people  of  this 
Commonwealth  and  it  is  your  dtity  now  to  adjourn  sine  die. 

Mr.  Wescott:  Mr.  President,  it  is  with  unfeigned  diffidence  and  reluctance,  which 
I  could  ill  conceal,  that  I  prestime  to  differ  with  the  distingtiished  lawyer  who  is  the 
patron  of  the  resolution  tmder  consideration.  But  I  am  unalterably  opposed  to  that 
resoltition,  and  feel  that  I  would  be  recreant-  to  myself,  recreant  to  the  obligations 
which  I  owe  to  my  constituency  and  to  the  people  of  Virginia  were  I  to  withhold  an 
expression  of  my  A^iews  upon  this  question. 

Let  me  ask  the  patron  of  this  resolution  for  what  purpose  were  we  segregated  from 
the  great  mass  of  Virginia's  people,  and  commissioned  to  assemble  in  this  city  June 
12,  1901,  if  it  were  not  to  revise  and  amend  our  Constitution,  and  when  that  shall  have 
been  answered  then  let  me  further  say  we  ought  to  propound  to  ourselves  and  to  give 
an  answer  satisfactory,  not  only  to  ourselves,  but  to  the  people  of  this  State,  as  to 
whether  or  not  we  have  fulfilled  the  purpose  for  which  we  were  convoked  in  Constitu- 
tional Convention?    If  so,  then  why  this  proposed  adjournment? 

Have  we  revised  and  amended  the  Constitution?  Have  we  consummated  the 
work  for  which  we  were  convoked  m  convention?  Are  our  labors  finished?  If  so, 
I  ask.  what  need  is  there  of  a  hundred  guardian  angels  over  the  work  of  this  Conven- 
tion for  another  eighteen  months? 

Have  we  done  the  work  for  which  v\-e  were  assembled?  If  we  have,  then  there 
is  no  excuse,  there  is  no  justification,  there  is  no  reason  for  our  remaining  in  session. 


3270  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

If  we  have  written  a  Constitution  and  have  assumed  the  power  of  the  sovereign  people 
of  the  State  to  promulgate  that  Constitution  and  to  breathe  into  it  vitality  and  thereby  to 
supersede  the  hitherto  fundamental  law  of  this  land,  by  what  stretch  of  reason  can  we 
arrogate  unto  ourselves  the  power  after  the  tenth  day  of  July,  1902,  when  we  say  that 
that  instrument  shall  become  the  fundamental  law  of  this  State  of  ours,  to  alter,  amend 
or  revise  in  the  slightest  any  provision  of  that  finished  and  completed  work? 

Is  there  any  analogy  in  the  Kentucky  cases?  I  deny  it.  The  gentleman  has  well 
said  that  the  purpose  for  which  we  were  assembled  v^^as  to  revise  and  amend  the  Con- 
stitution. I  claim  we  have  assumed,  we  have  arrogated  unto  ourselves,  and,  whether 
correctly  or  incorrectly,  it  has  been  the  dominant  sentiment  of  this  body  that  we  have 
the  power,  when  we  have  agreed  upon  v^^hat  that  fundamental  law  should  be,  to  put  it 
into  operation;  and  we  have  acted  upon  that  assumption.  And  I  submit  to  you,  gen- 
tlemen, that  to  hold  this  Convention  in  session  for  any  length  of  time  after  the  tenth 
day  of  July,  1902,  would  be,  of  the  righteousness  of  our  course,  a  confession  of  doubt. 
It  throws  suspicion  upon  our  own  confidence  in  what  we  have  said  to  the  people  of 
the  State.  It  would  show  that  we  question  the  right  and  authority  to  do  what  we 
have  assumed  the  power  and  authority  to  do,  and  that,  in  my  opinion,  would  be  greatly 
to  be  deprecated. 

I  say,  there  is  no  analogy  in  the  cases  of  the  Constitutional  Conventions  of  Ken- 
tucky. And  why?  Says  the  gentleman  who  proposes  this  resolution.  "Were  we 
not  assembled  here  to  give  the  people  a  Constitution?"  When  the  people  of  Kentucky 
who  wrote  their  Constitution  answered  that  question  they  did  not  presume  to  consum- 
mate that  work  and  to  proclaim  it,  but  submitted  it;  and  until  after  the  people  had 
passed  upon  it  and  accepted  it  their  work  was  not  complete,  because  they  had  not 
given  their  people  a  complete  vitalized  fundamental  law. 

We  assumed  the  contrary — that  we  had  the  right  to  promulgate  it,  and  we  have 
promulgated  it.  Now,  by  what  authority,  by  what  course  of  reasoning,  by  what 
stretch  of  the  sovereign  power  we  have  arrogated  unto  ourselves,  can  we  at  any  day 
after  the  10th  day  of  July  next,  when  this  fundamental  law,  by  our  vote,  shall  super- 
sede the  old  Underwood  Constitution,  undertake  to  alter  one  jot  or  tittle  of  the  work 
we  have  done.    There  must  be  some  limit  to  our  delegated  powers. 

Have  we  not  provided  how  amendments  shall  be  made?  Have  we  not  said  that 
this  Constitution  which  we  have  given  to  the  people  as  an  entity,  as  a  completed 
task,  shall  be  altered  or  amended  in  the  future  by  either  of  two  well-defined  and  well- 
recognized  methods?  And  dO'  we  not  now  undertake  to  say,  should  we  adopt  this  reso- 
lution, that  that  which  we  in  another  breath  say  is  the  fundamental  law  of  this  land, 
providing  how  and  how  only  it  shall  be  amended  or  altered,  can  be  amended  and 
altered  by  another  method — to-wit,  by  its  authors  themselves? 

I  wish  to  propound  this  question:  If  we  have  the  power  to  perpetuate  our  guar- 
dianship over  the  work  of  this  body  for  eighteen  months  more,  why  have  we  not  equal 
power  to  continue  that  guardianship  for  five  years,  and  if  for  five,  why  not  for  twenty- 
five  years  further? 

Why  have  not  v/e  the  right  to  assume  that  any  mistakes,  any  oversights,  any 
blunders,  which  may  henceforth  be  discovered  in  the  result  of  our  deliberations  shall 
be  corrected  as  well  five  years  or  twenty-five  years  hence  by  this  Convention,  as 
within  eighteen  months?  How  are  you  to  draw  any  such  distinctions?  Where  is  the 
limit  of  the  sovereign  power  of  these  hundred  men  to  be  fixed?  When  are  we  to 
attain  the  end  of  it?  When,  I  ask  you,  if  not  on  the  10th  day  of  July,  1902,  shall  these 
one  hundred  delegates  go  back,  shorn  of  the  extraordinary  power  conferred  upon  them, 
into  that  body  whence  they  were  drawn,  and,  thenceforth,  renounce  and  cease  to 
assume  or  to  exercise  any  powers  whatsoever  other  than  those  which,  as  private  indi- 
viduals, they  possessed  and  exercised  prior  to  their  selection  to  discharge  this  most 
important  work?    Gentlemen,  there  must  be  a  finality  to  our  labors  and  our  authority. 

Aside  from  that,  gentlemen,  let  me  offer  you  another  practical  suggestion.  Much 
has  been  said  upon  the  floor  of  this  body  upon  the  question  whether  or  not  we  have 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3271 


a  legal  right  to  proclaim  the  fundamental  law  of  Virginia.  I  have  never  doubted  the 
possession  of  that  right;  and  whatever  doubts  may  exist  in  the  mind  of  any  man 
who  has  ever  given  to  its  investigation  the  experience  of  a  trained  lawyer  must 
assuredly  be  swept  away  when  in  the  near  future,  as  v/e  have  provided,  the  Governor 
and  the  General  Assembly  shall  have  recognized  it.  It  unquestionably  becomes,  then, 
not  a  judicial,  but  a  political  question  under  all  the  authorities. 

But  assuming  that  that  is  incorrect,  would  not  the  adoption  of  this  resolution 
be  an  invitation  to  attack  by  the  enemies  of  the  new  Constitution?  Suppose  the 
question  of  the  right  to  exercise  power  we  have  arrogated  to  ourselves  shall  arise 
in  appropriate  proceedings  before  the  court  of  last  resort  of  this  State?  Is  there  a 
gentleman  here  who  will  not  admit  that  when  that  tribunal  whatsoever  may  be  its 
views  upon  this  question,  shall  come  to  pass  upon  it,  if  we  vote  for  this  resolution 
of  the  gentleman  from  Richmond  and  adjourn  this  body  over  and  say  thereby  that 
vv^e  have  not  yet  completed  our  work,  but  still  have  the  power  to  submit  it,  if 
that  court  shall  be  inclined  to  say  we  ought  to  have  submitted  it,  we  will  by  this 
step  have  taken  from  their  shoulders  more  than  half  of  the  responsibility  they  will 
be  conscious  of  being  under  to  the  people  of  Virginia,  in  passing  upon  that  momen- 
tous question? 

If  there  were  no  other  reason,  gentlemen;  if  the  question  were  purely  of  ex- 
pediency (and  I  cannot  view  it  in  that  light  at  all)  instead  of  being  rather  one  of 
power  or  authority,  it  seems  to  me  that  objection  should  outweigh  every  possible 
consideration  in  its  favor. 

Not  wishing  to  detain  you  longer,  gentlemen,  permit  me  to  say,  in  conclusion, 
that  after  mature  reflection  I  cannot  see  how  it  is  possible  to  reconcile  our  action 
in  proclaiming  the  new  Constitution  with  the  course  proposed  by  the  resolution  under 
consideration,  we  cannot  "blow  hot  and  cold;"  we  cannot  "play  fast  and  loose"  with 
the  people  of  this  great  Commonwealth. 

By  our  action  in  proclaiming  the  Constitution  have  we  not  said  to  the  sovereign 
people  of  Virginia:  "We  have  accepted  your  commission  to  revise  and  amend  your 
Constitution,  our  labors,  though  arduous  and  protracted,  have  at  length  terminated,  we 
have  finished  our  task;  take  this  as  your  new  fundamental  law  as  an  entity,  a  symmetri- 
cal whole,  providing  two  methods  as  the  only  ones  by  which  it  can  be  amended  or  al- 
tered in  the  slightest  degree,  and  shall  we  now  say,  by  adopting  this  resolution,  that  not- 
withstanding all  this  we  arrogate  unto  ourselves  the  extraordinary  and  illogical  povv^er  for 
eighteen  months  longer,  to  remain  here  in  session  for  the  purpose  of  correcting  and  set- 
ting right  any  mistakes,  blunders,  oversights,  or  omissions  which  the  future  may  develop 
in  our  work,  in  defiance  and  disregard  of  the  very  provisions  of  that  instrument  itself? 
No,  gentlemen,  let  us  adjourn  sine  die;  our  labors  and  our  responsibilities  have  ended; 
leave  the  issue  with  the  people  of  this  proud  old  Commonwealth  to  be  met  and  dealt 
with  by  them,  whensoever  they  may  arise  and  whatsoever  form  they  may  assume 
as  they  in  their  aggregate  wisdom  deem  best. 

Mr.  Hancock:  Mr.  President  and  members  of  the  Convention,  I  am  in  favor  of 
this  resolution.  We  were  sent  here  by  the  people  of  Virginia  to  frame  a  new  Consti- 
tution, to  amend  and  revise  it,  and  to  proclaim  it  as  the  law  of  the  land,  or  to  have 
it  ratified  by  the  people. 

In  the  early  sessions  of  this  Convention  I  took  the  position  that  proclamation 
was  within  the  power  of  this  Convention,  but  that  it  was  contrary  to  good  policy  and 
good  faith  to  exercise  such  a  power.  But  we  have  proclaimed  it;  and  I  believe  the 
power  this  Constitution  has  exercised  is  a  power  that  it  possesses,  and  I  have  no 
fear  for  the  Constitution  in  the  courts,  either  State  or  Federal. 

But  there  is  a  large  minority  in  this  Convention  that  does  not  believe  in  proclama- 
tion; and  there  are  a  great  many  people  in  the  State  of  Virginia  and  a  great  many 
lawyers  who  do  not  believe  that  the  power  of  proclamation  exists.  Now,  if  the  povv^er 
of  proclamation  does  not  exist,  when  we  proclaimed  the  Constitution  we  did  a  vain 


3272  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

thing;  we  did  a  void  thing;  we  have  not  accomplished  the  work  for  which  we  were 
sent  here,  and,  therefore,  we  owe  it  to  the  people  never  to  adjourn  until  we  have 
accomplished  the  work  that  they  imposed  upon  us. 

I  say  that  we  have  two  plain,  simple  propositions  before  us.  It  was  our  duty  to 
come  here  and  to  revise  and  amend  the  Constitution  and  to  submit  it  to  a  vote  of  the 
people,  or  it  was  our  duty  to  proclaim  it. 

I  have  always  advocated  the  former  course,  and  have  voted  to  submit  to  the 
people.  But  a  large  majority  of  the  Convention  decided  otherwise,  and  I  submit  to 
their  superior  judgment,  and  I  am  now  heartily  in  favor  of  the  admirable  instrument 
that  has  been  made  by  this  Convention,  notwithstanding  it  has  been  proclaimed. 

If  we  had  the  right  to  proclaim,  then  we  have  accomplished  our  work,  and  the 
new  Constitution  will  be  in  effect  on  the  10th  day  of  July.  But  suppose  we  do  not 
possess  this  power  of  proclamation.  Suppose  the  minority  on  this  floor  is  right, 
and  we  do  not  possess  it?  If  the  courts  of  the  land  say  that  proclamation  is  not 
within  the  power  of  the  Convention,  then  her  action  in  proclaiming  it  has  been  null 
and  void.  All  the  oaths  taken  by  the  Supreme  Court  of  Appeals  and  other  judges,  all 
the  oaths  taken  by  the  members  of  the  General  Assembly,  and  all  the  oaths  taken  by 
all  the  other  officers  in  the  Commonwealth  to  support  it  are  void,  and  the  people  are 
left  without  any  Constitution,  except  our  present  Constitution.  But  if  this  power  to 
reassemble  is  reserved,  then  if  the  courts  say,  "You  have  no  power  to  proclaim,"  we 
will  still  have  power  to  reconvene,  and  can  fulfill  the  trust  and  perform  the  duty  which 
the  people  imposed  upon  us — to-wit,  to  revise  and  amend  the  Constitution,  and  to 
submit  it  to  a  vote  of  the  people. 

I  am  not,  however,  in  favor  of  coming  back  here,  and  amending  and  revising 
this  Constitution;  but  I  am  in  favor,  if  the  courts  decide  we  had  no  right  to  proclaim 
it,  of  coming  back  here  and  saying,  "We  will  submit  it  to  the  people  and  let  them  vote 
upon  it."  This  Constitution  will  be  of  great  value  to  the  State  of  Virginia  if  it 
shall  become  the  supreme  law  of  the  land. 

Let  us  place  safeguards  about  it.  It  is  a  pearl  of  great  price  to  the  people 
of  this  Commonwealth.  It  is  the  result  of  over  twelve  months'  labor  of  a  hundred 
of  the  best  nien  of  the  Commonwealth,  and  it  has  cost  hundreds  of  thousands  of 
dollars  to  the  State  of  Virginia.  Let  us  reserve  the  great  power  which  has  been 
given  us,  and  retain  possession  of  it  until  the  State  has  a  Constitution  about  which 
there  is  no  doubt.  If  proclamation  is  legal,  then  the  power  of  this  Convention  ends 
to-day,  and  the  resolution  is  of  no  value,  and  is  void.  If  proclamation  is  not  legal, 
then,  by  retaining  the  power  to  reassemble,  the  Convention  will  be  able  to  reconvene 
and  submit  this  Constitution  to  the  people  for  ratification. 

The  simple  question  presents  itself:  Will  you  take  this  Constitution  and  say 
that  proclamation  is  all  right,  and  place  no  safeguards  around  it?  When  we  hear 
threats  that  there  is  going  to  be  an  effort  to  test  this  question  of  proclamation, 
when  there  is  doubt  in  the  minds  of  lawyers  in  regard  to  it,  when  you  have  the 
power  to  protect  the  people,  when  you  have  the  power  to  save  the  Constitution,  when 
you  have  the  power  to  come  back  here  and  submit  it  to  the  people,  will  you  be  so 
forgetful  and  so  unmindful  of  your  duty  as  to  adjourn  sine  die,  and  leave  it  possible 
for  our  labor  of  more  than  one  year  to  be  declared  null  and  void  by  the  Supreme 
Court  of  the  United  States? 

Mr.  Wysor:  Mr.  President,  the  gentleman  who  has  just  addressed  the  Conven- 
tion said  he  was  heartily  in  favor  of  the  resolution.  I  desire  to  say  to  the  Conven- 
tion that  I  am  heartily  opposed  to  it. 

In  the  first  place,  the  resolution  will  accomplish  no  good  purpose  whatever.  It 
provides  for  the  reconvening  of  the  Convention  in  January,  1903;  and  no  question 
relative  to  the  proclamation  of  the  Constitution  or  any  other  important  question  con- 
cerning it  could  be  finally  settled  by  that  time.  So  that  there  will  be  no  necessity 
for  then  reconvening  the  Convention. 

It  also  gives  to  the  president  a  power  which  I  am  unwilling  to  give  to  him.  It 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA.  3273 

transfers  all  the  powers  of  the  Convention  to  the  president,  and  allows  him  to  judge 
of  the  exigency  of  the  occasion,  and  to  determine  whether  or  not  this  body  that  has 
been  declared  to  be  sovereign  shall  be  called  together  again. 

I  like  the  president  very  much;  and  I  appreciate  very  much  the  beautiful  com- 
pliments paid  him  the  other  day  by  the  gentleman  from  Campbell  (Mr.  Daniel).  The 
President  reminds  me  of  Moses  (laughter),  at  threescore  and  ten,  with  his  eye  un- 
dimmed  and  his  natural  force  unabated.  If  you  put  the  power  in  the  president  to  de- 
termine whether  you  shall  reconvene  or  not,  in  three  or  four  months,  he  will  begin 
to  think  about  the  trip  down  the  James;  he  will  begin  to  think  about  the  delightful 
occasions,  the  delightful  times  he  has  had  here  in  Richmond.  (Laughter.)  He  will 
think  of  the  divine  light  of  your  countenances;  and  he  will  perhaps  say,  "The  exigency 
has  arisen  (laughter) ;  the  occasion  has  come  to  pass,"  and  he  will  reconvene  the 
Convention  and  bring  you  all  back  here  again. 

So,  I  am  opposed  to  putting  that  power  in  the  president. 

If  v/e  come  back  here  in  January,  I  do  not  w^ant  to  come  back  upon  the  call  of 
the  president.  If  you  are  going  to  adjourn  until  January,  why,  adjourn  until  January, 
and  let  the  Convention  then  come  back  and  adjourn  sine  die.  If  you  cannot  all  get 
back,  certainly  a  quorum  can  come  back. 

I  think  we  ought  not  to  look  at  this  Constitution  as  an  old  hen  looks  at  one 
chicken.  You  know  how  a  hen  is  with  one  chicken.  She  is  the  biggest  fool  about  it 
in  the  world.  She  will  raise  up  that  chicken  until  it  is  nearly  grown,  and  ready  to 
lay  eggs  and  hatch  chickens  of  its  own  (laughter),  and  yet  will  run  out  and  pick  up 
a  worm  and  call  the  chicken,  "Cluck,  cluck!  " 

This  is  not  the  only  Constitution  that  has  ever  been  made.  It  is  a  good  Constitu- 
tion. It  is  a  Constitution  that  I  say  is  now  full  grown,  and  does  not  need  our  fos- 
tering care. 

The  gentlemen  favoring  this  resolution  want  to  hold  the  Constitution  in  terrorem 
over  somebody,  like  an  old  scarecrow.  When  I  was  a  boy  I  used  to  put  a  scarecrow 
in  a  corn-field  to  keep  off  the  crows.  It  would  do  all  right  for  a  while,  but  the  crows 
would  finally  get  familiar  with  it.  (Laughter.)  After  a  while  they  would  light  on  it 
(laughter),  and  then  they  would  roost  on  it  at  night.  (Laughter.)  That  is  just  the 
way  with  your  Constitution.  If  you  undertake  to  hold  it  in  terrorem  over  anybody,  it 
will  scare  them  for  a  while,  and  then  the  people  will  roost  on  it  and,  like  birds  of  prey, 
will  pick  its  eyes  out.  You  cannot  hold  it  in  terrorem  over  the  people;  it  would  amount 
to  nothing. 

You  have  no  power,  I  think,  to  adjourn  until  January.  It  is,  therefore,  very 
clear  to  me,  as  said  by  the  gentleman  from  Accomac,  and  by  the  gentleman  from 
Lancaster,  and  also  by  the  gentleman  from  Richmond  city,  that  when  you  proclaim 
the  Constitution  to  go  into  effect  on  July  10th,  and  it  does  go  into  effect  the  very  fact  of 
its  going  into  effect  of  itself  dissolves  this  body.  You  have  no  further  power  to  recon- 
vene. You  go  back  among  the  people;  you  become  part  of  the  people;  you  live  under 
the  organic  law,  and  are  as  much  controlled  by  it  as  anybody  else,  without  any  power 
on  your  part  to  amend  it  or  to  change  it. 

What  power  will  you  have?  Do  3^ou  expect  to  sit  here,  to  be  still  in  Convention, 
and  allow  the  Supreme  Court  of  the  land  to  pass  upon  the  Constitution,  and  then 
come  back,  and  say,  "Well,  we  will  correct  it?  "  If  you  have  no  right  to  proclaim 
it,  if  that  is  the  question  that  is  to  be  litigated,  and  your  act  is  null  and  void,  and 
the  Supreme  Court  should  so  hold,  that  would  be  the  end  of  it;  but  it  would  not 
give  you  any  power  to  reconvene  and  adopt  a  new  Constitution. 

The  gentleman  from  Accomac  (Mr.  Westcott)  made  a  strong  point  when  he  said, 
"If  you  can  adjourn  until  January,  1903,  after  you  have  completed  your  Constitution,  and 
put  it  into  operation,  you  can  adjourn  for  two  years,  you  can  adjourn  for  three 
years,  you  can  adjourn  for  twenty  years,  and,  under  a  republican  form  of  govern- 
ment, absolutely  perpetuate  yourselves  forever." 

Would  you  not  be  usurpers?  Undertake  it  once,  and  if  there  were  no  other  way 
206 — Const.  Deb. 


3374 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


to  stop  you  the  people  would  come  here  with  cords  and  whip  you  out  of  the  capitol. 
It  is  contrary  to  a  republican  form  of  government;  it  is  contrary  to  republican  in- 
stitutions.   You  cannot  do  it. 

You  have  proclaimed  the  Constitution.  I  did  not  believe  in  that;  but  I  am  per- 
fectly willing-  to  submit  to  the  majority  of  the  Convention,  and  to  take  that  as  the 
rule;  because  that  is  the  only  way  we  can  settle  questions  about  which  there  is  an 
honest  difference  of  opinion. 

Mr.  Robertson:  I  simply  wish  to  call  your  attention  to  the  question— I  do  not 
want  to  discuss  the  matter,  but  I  would  be  glad  if  you  would  consider  it — whether  or 
not  we  can  have  any  Constitution  at  all  unless  we  adjourn  sine  die?  In  other 
words,  as  long  as  we  are  a  body  constituted  as  a  convention  have  we  not  a  right 
to  change  it? 

Mr.  Wysor:    I  think  so. 

Mr.  Robertson:  And  is  it  not  necessary  that  we  should  adjourn  in  order  that 
this  Constitution  shall  take  effect? 

Mr.  Wysor:  Certainly  it  is;  it  is  necessary  that  we  should  adjourn  in  order  to 
give  finality  to  our  work.  Have  you  a  Constitution,  as  the  gentleman  suggests,  as 
long  as  you  are  in  Convention,  as  long  as  it  is  a  matter  still  under  your  considera- 
tion, a  matter  which  you  may  at  any  time  change?  A  Constitution  is  something  that 
is  firm;  it  is  something  that  is  stable;  it  is  something  that  is  established  to  be 
enduring,  and  something  that  is  final.  And  yet  we  are  told  that  we  can  proclaim 
it;  that  we  can  put  it  into  effect  on  July  10th;  that  we  can  convene  the  Legislature 
in  extraordinary  session  to  adopt  and  to  ratify  it,  and  still  that  we  are  here  to  be 
guardians  over  it,  with  power  to  reconvene  here  and  make  any  changes  in  the  or- 
ganic law  that  we  please! 

You  have  a  provision  in  this  very  Constitution  that  every  twenty  years  the  people 
can  call  another  Constitutional  Convention,  and  submit  to  it  any  questions  of  amend- 
ment that  may  arise.  How  can  they  call  another  one  if  you  are  going  to  remain  in 
session  forever?  If  you  can  adjourn  one  year,  you  can  adjourn  twenty,  and  this 
could  be  the  only  Constitutional  body  that  Virginia  could  ever  have;  and  the  only  way 
to  get  rid  of  it  would  be  by  death  or  by  banishment  of  its  members.  That  is  the 
only  way  you  could  get  rid  of  the  Convention,  according  to  the  argument  of  the  gen- 
tlemen on  the  other  side. 

Whatever  may  be  the  decision  of  the  courts,  we  must  adjourn,  we  must  com- 
plete our  work,  or  we  have  no  Constitution.  Why,  take  the  franchise  clause;  you  will 
have  people  registering  under  the  new  Constitution.  You  will  be  disfranchising  people 
under  the  new  Constitution  before  it  has  been  enacted  into  a  finality,  while  the  Con- 
vention is  still  in  session,  and  still  has  power  to  deal  with  the  instrument. 

We  have  played  a  good  part  here.  We  have  enacted  a  good  Constitution.  Let 
us  not  end  up  with  a  miserable  farce.  I  like  to  see  a  fine  play  on  the  stage,  and  I 
like  a  good  farce  at  the  end  of  it;  but  this  would  be  a  miserable  farce,  and  would 
make  us  lose  much  of  our  reputation  as  law-makers  among  the  citizens  of  the  State, 
and  among  people  all  over  the  Union.  The  new  Constitution  is  a  good  one;  and  I 
hope  it  will  stand  any  test  to  which  it  may  be  subjected. 

Now,  I  hate  to  leave.  If  you  give  me  what  I  prefer,  personally,  I  would  like  to 
meet  with.,  you  always.  There  would  be  no  end  of  it.  I  would  just  keep  coming  back, 
and  I  would  lengthen  our  lives;  none  of  us  should  ever  die.  We  would  meet  and 
debate  and  enjoy  one  another's  society.  But  it  is  an  old  song  that  "I've  got  to  leave 
you,  my  honey;  good-bye,  my  honey,  I've  got  to  leave  you."  (Laughter.) 

Now,  gentlemen,  I  think  we  ought  to  adjourn.  While  it  is  a  ,  hard  thing  to  say 
farewell,  we  have  to  say  it;  and  "if  forever,  still  forever,  fare  thee  well!  "  (Great 
laughter  and  applause.) 

Mr.  Green:  Mr.  President,  I  hardly  feel  physically  able  to  address  the  Conven- 
tion, and  I  certainly  would  not  undergo  the  labor  myself,  or  impose  upon  the  Con- 
vention, except  for  my  serious  conviction  that  to  adopt  the  resolution  proposed  by 


DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


3275 


the  distinguished  gentleman  from  Richmond  would  be  a  very  great  mistake.  I  know, 
sir,  this  is  a  resolution  that  relies  for  its  strength  in  the  doubts  which  afflict  man. 
I  know  that  from  the  days  of  the  Apostles  to  the  present  time,  you  could  not  possibly 
assemble  twelve  men  together  that  you  would  not  find  some  fellow  who  would  say,  "I 
doubt  about  that  now,  and  you  had  better  take  care." 

But,  sir,  I  know  also,  as  well  as  I  know  anything  under  the  sun,  that  the  Con- 
vention which  has  framed  this  Constitution  has  not  exceeded  its  powers  in  any  re- 
spect, and  I  know  as  well  as  I  know  anything  that  I  could  possibly  undertake  to 
argue  that  they  have  not  only  not  exceeded  their  powers,  but  that  every  provision  in 
this  Constitution  will  be  sustained  and  maintained  by  the  courts.  Of  that,  sir,  I  feel 
convinced.  I  would  not  have  voted  for  this  Constitution  if  I  had  not  felt  convinced 
that  every  single  line  contained  in  it  was  not  only  strictly  within  the  power,  but 
within  the  just  and  legal  power  of  this  Convention.  I  would  not,  under  any  cir- 
cumstances, condemn  myself  and  my  vote  by  saying  that  I  would  adjourn  over  and 
let  somebody  else  examine  our  v/ork,  and  if  they  expressed  any  doubts  about  it  that 
it  should  be  considered. 

Sir,  we  have  done  our  work.  We  have  made  a  Constitution  against  which  the 
gates  of  hell  cannot  prevail.  (Laughter.)  I  am  not  afraid  of  any  court.  I  cannot 
help  ■  it  that  certain  gentlemen  are  afflicted  with  doubts  on  this  question.  I  cannot 
help  it  that  certain  gentlemen  in  this  body  have  a  constitutional  disposition  to  fear, 
to  shrink  from  responsibility.  I  wish  to  say  that  in  using  that  language  I  do  not 
refer  to  the  gentleman  from  Richmond,  because  the  only  objection  I  have  to  him  is 
that  he  assumes  too  much  responsibility.  (Laughter.)  He  is  daring  and  aggressive. 
I  do  not  refer  to  him.  But  I  know  that  his  resolution  appeals  to  certain  minds  in 
this  Convention,  (and  you  cannot  get  one  hundred  men  together  without  finding 
those  minds),  that  are  afflicted  with  fears  and  doubts  and  trembling,  and  who  never 
trust  their  own  work  until  somebody  else  has  put  their  imprimatur  upon  it. 

Now,  sir,  I  ask  this  Convention  to  go  straight  forward.  It  has  accomplished  its 
work.  I  agree  with  the  suggestion  of  the  gentleman  from  Roanoke,  accepted  by  the 
gentleman  from  Pulaski,  that  there  must  be  a  finality  even  to  this  Convention,  and 
that  we  must  necessarily  surrender  in  the  end. 

I  believe  personally,  that  we  have  not  a  legal  right  to  continue  ourselves  after 
the  day  when  the  Constitution  goes  into  effect  under  our  proclamation,  and  that  the 
Convention  is  then  functus  officio.  It  Is  a  body  of  delegated  powers.  Its  purpose 
has  been  accomplished;  the  end  for  which  it  was  assembled  has  been  reached,  and  I 
believe  that  if  it  undertakes  to  go  a  step  beyond  that,  its  act  is  without  authority, 
and  null  and  void.  I,  therefore,  think,  sir,  that  our  duty  to  ourselves,  our  duty  under 
the  directions  which  the  people  gave  us  when  we  were  sent  to  fill  these  places;  our 
duty  to  the  State,  and  above  all,  our  duty  to  the  Constitution  which  we  have  framed, 
requires  us  to  stand  by  it  now,  and  send  it  out,  and  say  to  these  men,  who  are  going 
to  oppose  and  resist  it,  if  any  such  men  there  are,  "Do  your  worst.  This  is  our 
work.    Fight  it  as  best  you  can." 

One  other  word,  sir.  This  is  a  Constitution  of  the  people.  Even  those  gentle- 
men who  oppose  proclamation,  even  those  among  us  who  believe  that  there  are 
many  things  in  the  Constitution  which  are  objectionable,  will  admit  when  they  think 
a  minute,  that  the  people  of  Virginia  are  behind  this  Constitution.  They  are  in 
favor  of  it.  Every  man,  whether  for  the  Constitution  or  opposed  to  it,  knows  well 
enough  in  his  heart  and  mind  that  the  great  body  of  the  people  of  Virginia,  the  men 
whose  government  if  is,  stand  behind  it  and  intend  to  try  it  and  enforce  it 

The  gentlemen  who  hold  office,  and  whose  probable  opinions  are  held  up  as 
bugbears  and  scarecrows  to  us,  know  that  as  well  as  I  do  and  as  you  do.  Every 
representative  man  in  Virginia  feels  that  the  people  of  his  county  and  the  people 
of  the  entire  State  desire  at  least,  to  try  this  Constitution,  and  to  see  whether  it  is 
going  to  benefit  them.  No  man  will  dare— I  do  not  care  now  whether  he  is  a  legis- 
lator or  a  judge— to  array  himself  against  the  people,  and  to  attempt  to  defeat,  by  any 


3276 


DEBATES  or  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 


means  m  the  world,  their  right  to  try  the  Constitution  in  which  they  believe  Men 
are  guided  to  a  great  extent  by  selfish  interests,  and  those  men  will  realize  if  they 
think  a  minute  that  the  man  who  obstructs  this  Constitution,  if  he  succeeds  will  be 
everlastingly  damned  in  the  opinion  of  the  people  of  Virginia.  Why  should  he  not 
be?  Whether  it  be  a  good  Constitution  or  a  bad  Constitution,  if  it  is  obstructed  and 
defeated  by  citizens  of  Virginia  holding  office  in  this  State,  the  people  will  always 
believe  that  they  would  have  prospered,  and  if  these  people  defeat  it,  they  will  be 
condemned  as  enemies  of  the  State  to  eternal  ignominy. 

Mr.  O'Flaherty:    Mr.  President,  I  never  have  spoken  with  so  much  reluctance 
because  I  know  very  well  the  time  has  come  when  we  ought  to  adjourn.    I  have  not 
arisen  to-day  to  speak  without  the  greatest  reluctance.   I  have  been  giving  this  sub- 
ject much  thought  and  much  of  my  attention  for  the  last  few  weeks,  that  I  might 
know  how  to  vote  intelligently.    We  have  not  cast  a  vote  in  the  last  year  that  was 
more  important  than  is  the  one  we  are  called  upon  to  cast  to-day.    I  voted  for  the 
submission  of  the  Constitution  to  the  people.    I  did  not  raise  my  voice  on  any  ques- 
tion in  that  last  debate,  because  I  did  not  agree  with  the  gentlemen  who  voted  with 
me,  who  thought  we  did  not  have  the  power  to  proclaim.    I  agreed  with  the  gentle- 
man from  Richmond  in  his  learned  argument,  and  I  believe  he  was  legally  correct 
when  he  said  this  Convention  had  the  legal  power  to  proclaim  the  Constitution;,  but 
he  based  it,  and  so  did  all  these  gentlemen — and  they  were  right — upon  the  fact  that 
the  civil  authorities  of  the  State  would  afterwards  recognize  it;  that  it  would  have 
recognition  by  the  executive,  by  the  judicial  department,  and  by  the  Legislature. 
Now,  when  the  Legislature  comes  here  on  the  15th  day  of  July,  let  us  look  at  this  in 
a  practical  way,  and  see  what  will  occur.    Vv'hen  a  member  of  the  Legislature  is  re- 
pleasure  and  honor  of  signing — he  takes  an  oath  to  support  that  Constitution.  And 
yet  he  knows  that  this  body  is  in  existence,  and  that  whatever  we  have  done  is  in 
fieri,  and  what  we  have  done  is  not  certain  to  be  the  finality  of  it,  and  he  may  be 
taking  an  oath  to  support  a  Constitution  the  last  of  which  he  does  not  know.  Let 
us  take  an  example.    Suppose  the  Legislature  comes  here,  and  enacts  laws  to  carry 
into  effect  our  suffrage  law,  and  suppose  voters  register  under  our  ordinance,  and 
before  the  election  this  fall  the  Convention  comes  in  and  changes  the  suffrage  plan, 
and  makes  a  man  eligible  to  vote  under  the  registration  act  ineligible  to  vote.  You 
would  have  the  power  to  do  that  if  the  Convention  should  have  the  power  to  meet. 
What  an  inconsistent  position  we  would  be  in!    I  do  not  presume  to  speak  for  all  the 
lawyers  of  this  Convention,  but  from  a  legal  standpoint,  it  looks  to  me  as  if  the  sug- 
gestion of  the  gentleman  from  Lancaster  was  right,  and  that  on  the  10th  day  of  July, 
1902,  when  this  Constitution  goes  into  effect,  it  is  an  entirety,  and  that  we  are  functus 
officio,  and  we  cannot  meet  in  Convention  any  more. 

Let  us  see  now,  if  that  is  not  right?  Suppose  the  Legislature,  after  this  Con- 
stitution goes  into  effect,  calls  a  new  Convention,  as  it  will  have  the  power  to  do,  on 
the  11th,  and  submits  it  to  the  people  of  Virginia,  and  they  should  vote  to  call  an- 
other Constitutional  Convention  of  Virginia,  and  they  should  say,  "Y^e  are  the  Con- 
stitutional Convention  of  Virginia."  Which  one  of  those  bodies  would  be  the  legal 
body?  Now,  I  say,  gentlemen,  this  is  a  matter  of  great  and  momentous  importance. 
The  effect  upon  the  people  of  Virginia  is  going  to  be  bad.  Every  time  I  go  home  the 
people  say,  "When  are  you  going  to  adjourn?"  and  I  wouldn't  answer  all  the  ques- 
tions I  would  have  to  answer  between  now  and  January  for  any  amount  of  money. 
The  people  would  say,  "Are  you  a  Convention,  or  are  you  not  a  Convention?  Are 
you  going  back?  "  and  you  would  have  to  explain  what  you  are  going  back  for.  We 
say,  "We  are  going  back  lest  the  Federal  court  decide  our  suffrage  law  is  not  a  good 
one  and  a  legal  one."  Suppose  that  some  Republican  comes  to  me,  and  advises  with 
me,  or  with  any  lawyer,  as  to  what  he  should  do?  I  would  simply  say,  "Hold  off  until 
January,  1903."  Suppose  you  have  a  case  in  court.  You  cannot  get  any  decision  of 
the  Supreme  Court  of  the  United  States  before  1903.    Everybody  knows  the  United 


Dii3A_zs  Ox  i^z  co^~siimi02^Ai.  coxTTviio^'  or  tiegixia. 

States  Supreme  Court  is  congested  -wiih  cases,  and  it  is  a  Repubiican  court,  ix  tiiere 
are  any  politics  in  the  "Cnited  States  Supreme  Court.  Tken,  do  you  Thitils,  "^ould 
they  rusii  a  decision  througli  in  order  tliat  you  mighi  be  called  into  existence,  and 
come  here  and  correct  your  "vrork?  Tliey  would  not  do  it.  The  lasers  —  r"ld  hold 
it  back.  They  vrotild  wait  with  patience  until  the  time  when  you  have  v.:  _ri  sizie 
die.  The  effect  would  be  bad,  Mr.  President,  "z:-  Lrr:=".?,t^ire.  They  -rcild  say: 
'"You  are  holding  this  as  a  threat  over  us,  z:  :;l_i;v'  i;  vilars,  to  take  the  oath 
to  support  this  Constirution."  Once  they  take  the  oath  they  take  the  oath  to  support 
the  present  Constitution,  and  if  they  do  not  take  the  oath  they  have  not  any  right 
to  come  into  this  hall,  because  they  come  here  by  vlme  of  the  Constitution.  There 
will  be  no  trouble  about  their  taking  the  oath.  I  want  to  say,  in  regard  to  the  case 
in  Kentucky,  that  my  distinguished  friend  referred  to,  and  I  submit  with  the  greatest 
deference  and  humility  my  views,  in  contradiction  to  his,  that  they  took  the  view 
that  they  had  to  follow  the  legislative  act  which  called  them  into  existence,  and 
which  reauired  them  to  submit  the  Constitution  back  to  the  people,  and  required 
them  to  stay  in  existence  until  they  had  a  determination  of  that  matter.  We.  in 
Virginia,  do  not  take  that  view  ci  it,  TVe  take  the  view  that  we  have  a  right,  once 
we  get  in  existence,  to  do  whatever  we  please,  regardless  of  the  enaohng  act  of  the 
Legislature  of  Tirginia.  I  think  we  are  right,  but  our  school  of  political  economy 
diSers  from  that  of  Kentucky,  in  that  particular.  Their  court  has  taken  that  view  of 
it-  The  gentleman  from  Richmond  repudiated  that  idea  long  ago,  and  he  was  right 
in  doing  it.    Now,  you  fall  back  upon  it,  and  adjure  it  to  assist  you  in  this  matter. 

My  distinguished  friend  from  Chesterfield,  with  whom  I  generally  agree,  says 
that  if  the  courts  were  to  say  that  we  had  not  the  power  to  proclaim,  that  then  we 
could  submit  it  to  the  people.  Let  me  tell  you,  if  the  courts  of  this  land  ever  decide 
that  we  have  not  the  power  to  proclaim,  the  people  of  Virginia  will  never  ratify  any 
Constitution  we  might  make.  They  would  say,  "You  did  not  have  sense  enotigh  to 
make  a  Constitution  that  was  legal,  and  we  are  going  to  repudiate  it,"  It  will  have 
a  bad  efcect  upon  the  people.  As  far  as  I  am  concerned,  I  would  never  rev-irn  here 
if  the  courts  decide  that  this  is  xmcensti:  ::i:n?J  cn  the  grotmd  of  proclamation,  which 
I  say  they  will  not  do.  I  would  not  c  iiiir  l.Tte  to  help  to  make  a  Constitution  to  sub- 
mit to  the  people,  because  I  would  stand  before  a  cotirt,  and  the  highest  tribunal  of 
the  State — ^the  people — condemned.  I  would  resign  my  position,  and,  I  believe,  my 
term  as  a  member  of  this  Constitutional  Conventim  -  exp'ire  by  Kmitatim  :n  :he 
very  day  we  have  fixed  for  this  Constitution  to  enect.    Then,  gentlemen,  I 

am  willing  to  stand  by  this  Constitution,  I  am  willing  to  do  all  I  can  to  sustain  it  in 
the  court  and  in  the  forum,  for  I  love  the  people  of  Virginia,  and  I  love  the  men 
here  who  made  this  Constitution.  I  am  willing  to  say  to  you  people  as  was  said  in 
that  meadow  by  the  mystic  margin  of  the  sea  3,000  years  ago,  by  Ruth  to  Xaomi,  that 
• 'Whithersoever  thou  goest,  I  will  go;  wheresoever  thou  lodgest  I  will  lodge:  thy 
people  shall  be  my  people,  and  thy  God  my  God." 

But,  gentlemen,  let  us  have  an  end  of  this  thing,  p.ni  let  :=  have  a  finality.  We 
have  finished  our  work.  Let  us  quit  the  scene,  and  tl.^  :  '  ::  Virginia  will  think 
more  of  us  for  it. 

I  thank  you  for  your  attention. 

Mr.  T,  K  Moore:  Mr.  President  as  I  offered  the  substitute  to  the  resolution 
oSered  by  the  gentleman  from  Richmond,  to  perpetuate  this  Convention  for  a  term 
of  months,  I  desire  to  be  heard,  however,  briefly,  upon  the  subject. 

I  would  say  first,  that  it  occurs  to  me  the  splendid  legal  arguments  made  by  the 
gentleman  from  Accomac.  the  gentleman  ;  ?  nlaski.  and  the  gentleman  from  Dan- 
viUe,  are  unanswerable.  But  there  are  other  reasons  why  I  think  this  Convention 
should  now  adjourn. 

Mr.  President,  the  people  of  Virginia  were  told  th:.-  ::  '.lis  Convention  should  be 
called  together  here  to  make  a  Constitution,  it  would  ni.tite  :ne.  They  did  not  antici- 
pate that  we  would  perpetually  continue  ourselves  in  session.    It  will  be  a  disap- 


3278  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

pointment  to  the  people  of  Virginia  if  we  now  adopt  a  resolution  by  which  we  may 
perpetuate  ourselves  indefinitely  in  power  as  a  Constitutional  Convention. 

In  order  that  no  man  may  be  deceived,  I  will  say  that  other  and  stronger  rea- 
sons influence  me.  Gentlemen,  I  am  opposed  to  the  Constitution  that  has  been  made 
by  this  Convention.  I  believe  that  a  majority  of  the  people  of  Virginia  are  opposed 
to  it.  I  want  this  Convention  to  adjourn  sine  die,  so  that  in  the  event  this  Consti- 
tution is  declared  null  and  void  in  the  courts  of  the  land,  a  Constitutional  Convention 
may  then  be  assembled,  if  it  shall  be  deemed  necessary,  that  will  make  a  Constitution 
more  nearly  in  accordance  with  the  sentiments  of  the  majority  of  the  people  of  Vir- 
ginia. The  gentleman  from  Richmond,  who  proposes  my  resolution,  may  use  that  as 
an  argument  in  support  of  his  resolution.  I  am  here  to  say,  Mr.  President,  that  it  is 
my  fondest  hope  that  should  this  instrument  be  carried  to  the  courts,  and  especially 
into  the  Federal  courts,  that  they  will  hold  that  this  Constitution  is  in  contravention 
of  the  Constitution  of  the  United  States,  and  it  will  declare  that  it  is  null  and  void. 
I  want  this  Convention  out  of  the  way,  so  that  in  the  event  such  a  decision  as  that 
may  be  rendered,  there  may  be  in  the  future  a  fair  expression  by  the  people  of  Vir- 
ginia upon  this  subject. 

Now,  I  say  this  Convention  is  not  a  representative  body  of  the  people  of  Virginia, 
because  such  a  small  number  of  the  people  of  Virginia  called  it  into  being.  I  agree 
to  everything  the  gentleman  from  Pulaski  has  said  about  the  hen  and  one  chicken, 
and  about  its  being  necessary  to  feed  it  on  worms,  and  all  that  kind  of  thing.  My 
opinion  is  that  it  will  be  necessary  to  feed  and  to  support  this  Constitution  on  some- 
thing. Why,  the  gentleman  from  Danville  says  the  gates  of  hell  cannot  prevail  against 
this  Constitution.  Mr.  President,  this  Constitution,  having  been  made,  as  in  my  opin- 
ion, it  has  been  made,  by  filching  from  the  people  their  dearest  rights,  the  principal 
of  self-government,  if  it  should  knock  at  the  gates  of  hell  they  would  swing  wide 
open  to  receive  it.    Of  course,  they  would  not  prevail  against  it. 

It  has  not  been  made  according  to  republican  principles,  and  I  hope  and  trust 
that  when  the  courts  come  to  pass  upon  it  they  will  so  declare,  according  to  the  dis- 
senting opinion  in  the  Kentucky  case.  If  that  decision  be  reached,  if  this  body  is  out 
of  the  way,  and  if  a  majority  of  the  people  of  Virginia  should  then  be  of  the  opinion 
that  a  Constitutional  Convention  is  necessary,  let  us  call  together  then  another  Con- 
vention that  can  and  will  make  a  Constitution  in  accordance  with  the  laws  of  this 
land. 

So,  Mr.  President,  I  believe,  when  we  adjourn  to-day,  we  should  adjourn  sine  die, 
and  launch  this  work  for  all  it  is  worth,  and  if  it  is  worthless,  let  us  know  it. 

Mr.  Watson:  Mr.  President  and  gentlemen  of  the  Convention,  the  gentleman 
from  Danville  has  characterized  the  resolution  of  the  gentleman  from  Richmond  as 
appealing  to  the  fears  and  doubts  of  this  Convention.  He  might  have  added,  sir,  that 
it  also  appeals  to  the  vanity  of  the  Convention.  From  the  very  earliest  times  the 
longing  of  the  soul  of  man  to  be  immortal  has  been  one  of  the  strongest  character- 
istics of  his  nature,  and  I  would  not  sir,  at  this  late  day,  find  it  my  heart  to  con- 
demn members  of  a  Constitutional  Convention  if  they  were  afflicted  by  that  disease 
oi  which  so  many  of  mankind  have  always  borne  the  burden.  It  is  a  most  flattering 
thing  to  suggest  to  the  members  of  this  body  that  on  the  26th  day  of  June,  1902,  in- 
stead of  retiring  from  the  seats  of  the  mighty,  and  returning  again  to  the  body  of 
the  people,  they  shall,  by  an  act  of  power,  and  by  an  exercise  of  their  authority,  make 
themselves  perpetual  and  immortal  in  the  annals  of  this  Commonwealth. 

Now,  Mr.  Chairman,  if  there  were  any  sound,  practical  reason  for  this  proposi- 
tion, if  I  could  get  myself  to  believe  that  this  Constitution  hung  in  the  balance,  and 
that  it  needed  some  such  prop  from  outside  authority  not  inherent  in  its  merits,  then 
rather  than  give  up  all,  sir,  I  should  be  willing  to  try  the  experiment,  and  to  put  the 
Constitution  in  a  plaster  of  Paris  cast,  and  not  subject  it  to  time  and  fate  to  past 
upon  its  good  or  its  evil  effects. 

There  are  but  two  sources  from  which  I  can   apprehend  any   danger  to  this 


DEBATES  OF  THE  COXSTITUTIOXAL  COXTEXTIOX  OF  VIRGIXIA.  3279 

instrument,  and  I  must  say  for  myself  there  is  but  one  from  which  I  apprehend 
any  danger.  We  all  realize  that  if  we  can  run  the  gauntlet  of  the  State  courts, 
and  the  gauntlet  of  the  Federal  courts,  there  are  none  to  stay  our  hands  or  to 
make  us  afraid.  Gentlemen  must  have  discounted  and  discredited  the  work  of 
their  own  hands  to  a  large  extent  if  they  think  that  in  the  situation  in  which 
we  find  ourselves  there  is  any  danger  to  be  apprehended  from  the  State  au- 
authorities  of  this  Commonwealth.  By  the  fifteenth  day  of  June,  sir,  they  will  all 
have  sworn  allegiance  to  the  Constitution  under  which  we  are  to  live.  When  the 
General  Assembly  of  this  Commonwealth  shall  have  recognized  this  Constitution, 
representing,  as  they  do,  the  political  arm  of  its  government,  so  good  a  lawyer  as  my 
friend  from  the  city  of  Richmond  v>'ill  not  maintain  that  there  is  any  longer  any 
judicial  question  to  be  settled  on  this  subject.  I  would  say  to  him  in  that  connection 
that  if  the  recognition  of  the  work  of  this  body  by  the  General  Assembly  of  this 
State  be  an  important  or  essential  matter,  that  we  should  proceed  slowly  along  the 
line  of  putting  ourselves  in  the  attitude  of  undertaking  to  coerce  that  recognition, 
and  to  compel  it  whether  it  be  given  willingly  or  not. 

Mr.  President,  I  undertake  to  say  that  the  General  Assemblj^  of  this  Common- 
wealth, representative  as  they  are  of  the  great  body  of  the  people,  will  not  willingly 
or  readily  put  themselves  in  antagonism  to  what  is  so  manifestly  the  public  senti- 
ment of  the  State,  and  we  may  reasonably  expect  that  upon  their  assembling  they 
vrill  recognize  this  instrument  as  the  organic  law  of  the  State,  and  put  it  beyond  the 
question  by  the  State  courts.  But,  sir,  I  fear  the  action  of  the  Federal  courts.  It 
has,  to  my  mind,  been  pointed  out  absolutely  and  conclusively  that  there  is  no 
twelve  months'  limitation  to  be  put  upon  the  Supreme  Court  of  the  United  States. 

Xobody  could  suppose  that  the  Republican  elements  of  this  Commonwealth,  com- 
posed in  part  of  able  men,  and  ably  led,  would  go  to  work  immediately  to  test  the 
legality  of  this  question  in  the  Federal  courts,  when  there  stands  in  their  faces  the 
knowledge  that  you  could  reassemble  here  in  twelve  months  and  undo  your  work. 
Why,  Mr.  President,  if  a  case  were  put  upon  the  docket  now,  within  all  human  proba- 
bility, there  would  be  no  adjudication  of  it  before  the  expiration  of  these  twelve 
months. 

But,  Mr.  President,  assuming  that  the  Federal  courts  will  undertake  to  undo 
what  we  have  done  here,  assuming  that  there  are  articles  in  our  Constitution  which 
contravene  the  Federal  authority,  what  hope  have  we,  sir,  that  by  reassembling  here  we 
will  remedy  that  matter,  and  bring  about  the  solution  of  our  difficulties?  Suppose  a 
Federal  court  says  the  understanding  clause  of  your  suffrage  article  is  unconstitu- 
tional? Does  am'body  within  the  sound  of  my  voice  believe  that  this  Constitution  is 
going  to  disfranchise  36,000  white  people  of  this  State  who  cannot  read  and  write, 
and  who  can  be  put  upon  your  registration  books  only  by  virtue  of  some  such  device, 
as  the  understanding  clause?  Then,  sir,  if  the  Federal  coarts  knock  that  out,  what  is 
there  left  in  our  hands,  what  weapon,  what  instrumentality,  by  which  we  can  deal  ef- 
fectively with  the  situation?  Suppose,  sir,  that  they  should  saj-  that  your  "son  of  a  sol- 
dier," who  is  invested  with  the  right  of  suffrage,  is  a  proposition  against  the  Federal 
Constitution.  Is  there  any  other  device  that  occurs  to  this  Convention  by  which  we 
can  meet  that  situation?  Or,  suppose  they  say  that  the  exemption  of  the  Confederate 
soldier  from  the  poll  tax  is  unconstitutional.  Would  there  be  any  disposition  in  this 
body  to  put  the  poll  tax  upon  the  Confederate  soldiers  of  this  Commonwealth? 

So,  I  say,  Mr.  President,  after  mature  reflection,  that  we  have  done  the  best  we 
can;  and  if  the  Federal  courts  shall  decide  that  what  we  have  done  is  unconstitutional, 
we  will  have  reached  the  end  of  our  rope,  and  it  will  be  beyond  the  power  of  this 
b>ody  to  deal  with  the  situation  that  will  confront  it. 

The  proposition  of  the  gentleman  from  Richmond  (i\Ir.  Meredith)  is  practically 
to  confer  dictatorial  powers  upon  him  who  hath  presided  with  so  much  impartiality 
and  dignity  over  the  deliberations  of  this  body.    If  the  public  emergency  required 


3280  DEBATES  OE  TEIE  CONSTITUTIONAL  CONVENTION  OE  VIRGINIA. 

that  there  should  be  a  dictator  within  this  Commonwealth,  I  know  none  at  whose  feet 
I  would  place  the  insignia  of  office  with  more  confidence  than  the  honorable  gentle- 
man who  is  designated  by  this  resolution.  His  public  services  date  back  to  times 
beyond  memory — to  times  when  the  law  was  silent,  when  he  represented  the  rights 
of  the  people,  and  when  the  public  sanction  came  from  the  cannon's  mouth;  and  he 
has  never  yet  betrayed  a  public  trust. 

But  it  has  been  remarked,  sir,  by  a  wise  student  of  human  nature  that  unlim- 
ited power  is  a  thing  that  no  woman  and  very  few  men  are  fit  for.  That  was  the 
philosophy  of  an  olden  time  which,  I  think,  might  be  revised  in  the  light  of  modern 
experience  with  the  proposition  that  unlimited  power  is  a  thing  that  nobody  is  fit  for. 

Why,  sir,  in  the  darkest  days  of  the  Revolution,  when  our  people  trembled  in 
the  balance  to  know  whether  they  should  be  a  new  nation  or  British  subjects,  when 
the  proposition  was  made  in  this  Commonwealth  to  confer  upon  a  governor  the  power 
to  suspend  the  rights  of  the  people,  it  was  from  the  county  of  Chesterfield,  repre- 
sented by  my  friend  who  has  just  spoken,  that  a  noble  patriot  by  the  name  of  Archi- 
bald Cary  sent  the  Governor  of  the  State  Avord  that  the  moment  he  assumed  such 
authority  a  dagger  would  be  buried  in  his  heart. 

But  now,  sir,  in  a  time  of  profound  peace,  when  no  emergency  exists,  we  pro- 
pose that  this  body  shall  continue  in  potential  existence,  and  discretion  shall  be 
vested  in  the  hands  of  a  single  man  to  determine  what,  Mr.  President?  To  deter- 
mine, sir,  whether  every  function  of  the  State  government  shall  cease.  To  determine 
whether  the  Governor  and  the  executive  officers  of  this  Commonwealth  shall  ad- 
minister the  laws.  To  determine  whether  the  Legislature,  the  representatives  of  the 
public  authority,  shall  exercise  its  functions.  To  determine  whether  the  judges  upon 
the  bench  shall  longer  sit  in  judgment  and  construe  the  laws  of  the  Commonwealth. 

I  say,  sir,  that  there  is  no  emergency  which  justifies  the  vesting  of  such  power 
in  the  hands  of  any  single  individual. 

Mr.  President,  this  is  no  new  proposition.  This  is  not  the  first  time  that  men 
have  thought  that  the  work  of  their  hands  required  extraordinary  propping,  and 
should  be  made  immortal  by  extraneous  means.  Why,  away  back  yonder,  in  one  of 
the  early  republics,  a  law-giver,  after  swearing  all  the  people  that  they  would  main- 
tain the  Constitution  until  his  return,  went  into  voluntary  exile  and  never  returned, 
in  order  to  fie  up  the  hands  of  the  people  forever. 

The  perpetuation  of  unlimited  authority  in  the  hands  of  any  one  man,  or  any 
set  of  men  comes,  I  think,  sir,  with  exceedingly  poor  grace  from  this  Commonwealth 
of  Virginia,  where  the  liberty  of  the  citizen  has  always  been  regarded  as  a  cardinal 
doctrine  of  political  faith,  and  where  no  usurpation  has  heretofore  stained  the  annals 
of  our  public  history. 

I  say,  gentlemen,  that  this  resolution  ought  not  to  pass,  in  view  of  the  fact  that 
it  is  an  unprecedented  thing  to  vest  in  the  hands  of  a  single  man  an  unlimited  dis- 
cretion like  this;  in  view  of  the  fact  that  the  time  selected  is  too  brief  to  accomplish 
the  object  these  gentlemen  have  in  view,  and  in  view  of  the  additional  fact  that,  if 
you  pass  it,  no  matter  who  exercises  or  wields  the  authority,  whenever  differences 
arise  as  to  this  instrument  which  you  have  promulgated,  whenever  anything  gets  into 
court,  and  the  people  of  the  Commonwealth  become  dissatisfied  with  this  instrument, 
they  will  be  beseeching  the  presiding  officer  of  this  body  to  call  this  Convention  back 
into  existence  in  order  to  amend  and  revise  it,  so  as  to  suit  the  passing  whim  or 
the  popular  idea  of  the  moment. 

Mr.  President,  I  am  willing  to  have  the  work  of  this  body  stand  upon  its  merits. 
I  am  willing  that  this  Convention  should  deal  fairly  and  sincerely  with  the  people  of 
this  State,  and  that  its  members  should  go  back  and  tell  their  constituents  that  they 
have  done  the  best  they  could  for  them;  that  they  have  drafted  an  instrument  which, 
in  their  judgment,  fulfils  the  legal  requirements,  and  that  after  having  done  that,  they 
are  unwilling  to  put  themselves  in  the  undignified  and  ungracious  attitude  (if  I  may 


DEBATES  OE  THE  COXSTITUTIOXAL  COXVEXIIOX  OE  VIEGIXIA. 


3281 


be  permitted  to  say  it)  of  extending  their  brief  authority  for  a  period  beyond  that 
which  they  were  commissioned  to  exercise  it,  and  of  adding  to  the  history  of  this 
State  an  attempt  on  the  part  of  the  representatives  of  the  people  to  continue  them- 
selves  in  authority  beyond  the  public  expectation — and  I  believe,  sir,  beyond  the  pub- 
lic good. 

Mr.  Meredith:  Mr.  President,  if  no  one  else  desires  to  speak  on  the  resolution 
I  have  offered,  I  am  prepared  to  make  my  remarks  at  this  time.  Of  course,  if  any- 
one else  desires  to  oppose  it,  I  think  I  should  be  granted  the  privilege  of  replying. 

Mr.  Chairman,  the  pending  resolution  has  been  characterized  by  the  gentleman 
from  Danville  (Mr.  Green)  as  having  been  bom  in  doubt.  It  may  be  so,  Mr.  Chair- 
man; but  the  question  is  as  to  whether  it  is  a  wise  doubt.  But  whether  that  be  true 
or  not,  surely,  it  is  very  evident  that  the  opposition  that  comes  to  it  has  been  born 
in  fear. 

You  have  had  portrayed  before  you  the  possibilities  of  a  permanent  convention.  The 
extremity  of  such  an  idea  must  show  you  its  fantastic  nature.  You  have  had  sug- 
gested to  you  here,  as  one  of  the  reasons  why  you  should  not  vote  for  this  resolution, 
the  possibility  that  the  President  of  this  Convention  may  exercise  the  power  given 
him  for  personal  reasons.  Xeed  I  reply  to  such  an  argument?  And  yet  does  it  not 
show  the  extremity  of  the  gentlemen  who  propose  to  antagonize  this  resolution  when 
they  are  willing  to  offer  that  as  a  reason  why  it  should  be  defeated? 

Why,  if  this  were  true,  if  it  were  possible  that  such  a  thing  should  happen,  is  it 
not  evident  that  it  would  be  a  useless  and  a  vain  effort  on  the  part  of  the  presiding 
officer  to  please  himself,  when  we  all  know  that  if  he  should  call  us  into  convention 
uselessly,  and  against  our  wishes,  we  would  immediately  adjourn?  So,  what  could 
be  the  effect  of  such  an  idle  effort  on  the  part  of  the  President?  And  yet  that  has 
been  gravely  suggested  here  by  two  gentlemen  as  one  of  the  reasons  why  we  should 
not  pass  this  resolution. 

I  have  said,  Mr.  Chairman,  that  in  addition  to  that,  fears  have  been  offered  as 
reasons  why  we  should  not  pass  this  resolution.  It  has  been  said  that  there  is  a 
possibility  of  our  making  ourselves  a  permanent  power.  Does  any  one  for  one  moment 
believe  that  there  is  any  possibility  of  such  a  thing?  Then  why  should  we  consider 
that  as  a  reason  against  taking  a  step  that  appeals  simply  to  our  common  sense,  in- 
stead of  our  wisest  fears? 

Why,  Mr.  Chairman,  we  must  all  recognize  the  nature  of  a  Constitutional  Conven- 
tion. It  is,  in  my  opinion,  a  body  of  supreme  power  of  command,  but  virtually  of  no  power 
of  putting  into  operation.  And  if  it  should  ever  come  to  pass  that  we  should  remain 
in  existence  so  long  that  the  people  of  this  State  should  become  tired  of  us,  and 
the  Legislature  should  call  another  convention,  and  we  should  undertake  to  antag- 
onize it,  do  vre  not  all  know  that  otir  efforts  would  be  useless  and  vain,  and  without 
power,  and  that  simply  by  the  order  of  the  Governor  we  would  have  to  leave  this 
hall,  and  that  we  could  not  protect  ourselves,  because  we  would  have  behind  us  none 
of  the  power  of  the  State? 

We  are,  as  I  repeat,  simply  a  body  to  command,  and  not  to  enforce;  and  the 
result  of  all  our  efforts  depends  entirely  upon  the  power  of  the  other  departments 
of  the  State  in  carrying  into  effect  our  commands. 

Do  we  not  know  that  that  was  the  result  of  the  convention  that  met  in  Rhode 
Island,  which  gave  rise  to  what  is  called  Dorr's  rebellion?  As  to  its  having  behind 
it  at  one  time  the  majority  of  the  people  there  was  no  doubt.  But  it  did  not  have 
behind  it  the  power  of  the  government,  the  recognition  of  the  government,  and  there- 
fore, it  was  without  power  to  exist,  or  to  carry  into  effect  any  of  its  commands. 

So  I  say  to  my  friend  from  Warren  (i\Ir.  O'Flaherty)  that  if  this  thing  should 
come  to  pass  (which  he  must  admit  is  purely  a  dream,  and  nothing  in  the  world 
but  a  fanciful  fear)  it  would  result  simply  in  our  being  turned  out  at  the  hands  of 
tbe  executive  power  of  the  State,  because  we  could  not  protect  ourselves. 


3282  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

I  therefore  say,  Mr.  Chairman,  that  when  we  look  at  a  question  of  this  kind  we 
ought  not  to  meet  it  with  extreme  boldness,  as  my  friend  from  Danville  is  inclined 
to  do;  because  I  want  to  say  to  him  that  the  man  who  deliberately  goes  farther  than 
is  necessary  is  not  bold,  but  is  rash.  All  we  ought  to  do  is  to  go  as  far  as  neces- 
sary to  secure  what  we  believe  to  be  the  rights  of  the  people,  and  the  benefits  we 
propose  to  confer  upon  them  by  this  Constitution. 

Is  there  any  reason  why  we  should  not  take  every  step  to  carry  into  effect  what 
we  believe  to  be  a  good  Constitution  for  this  people?  Are  we  to  say,  sir,  because, 
in  our  opinion,  whether  as  members  of  the  legal  profession,  or  as  laymen,  we  have 
the  power  of  proclamation,  that  therefore,  we  can  count  on  what  other  people  be- 
lieve? Have  you  not  had  raised  in  this  body  the  voice  of  warning,  when  the  gentle- 
man from  Montgomery  told  you  that  he  had  not  only  altered  his  resolution  because 
he  did  not  believe  this  thing  ought  to  be  done,  but  that  he  did  it  in  the  hope  that 
the  Federal  power  in  this  country,  through  its  judiciary,  would  be  exercised  to  de- 
clare its  works  null  and  void? 

Mr.  Chairman,  I  might  make  use  of  the  remarks  of  the  gentleman  from  Mont- 
gomery to  stir  your  fears;  but  I  do  not  propose  to  do  it.  If  you  do  not  yourselves 
appreciate  the  danger  that  lies  in  the  wishes  of  the  party  the  gentleman  from  Mont- 
gomery represents,  it  would  be  useless  for  me,  and  I  should  regard  it  as  beneath  my 
dignity,  to  undertake  to  influence  you  by  your  fears.  I  shall,  in  this  case,  appeal 
only  to  your  judgment  and  to  your  common  sense. 

Sir,  there  is  no  man  in  this  body,  I  care  not  who  he  be,  who  believes  more  earn- 
estly than  I  do,  in  the  power  of  this  Convention  to  proclaim  its  work.  I  earnestly 
urged  it,  and  I  voted  for  it.  But  I  am  not  so  conceited  as  to  believe  that  in  that  as 
in  other  things,  I  may  not  be  grievously  mistaken;  and  recognizing  the  possibility 
of  mistake,  recognizing  the  possibility  that  my  judgment  in  that  matter  may  be 
wrong,  propose  to  take  every  step  that  I  can  that  common  sense  dictates  to  protect 
the  people  from  the  evil  effect  of  a  mistake  that  I  may  have  made.  And  I  believe  it 
to  be  the  duty  of  every  one  of  us  to  take  the  same  line  of  action. 

What  harm  can  be  done  by  this  resolution?  Where  can  we  do  any  injury  to 
the  State  by  passing  this  resolution?  There  is  but  one  suggestion  that  has  been  made, 
and  that  was  made  in  response  to  an  inquiry  made  by  the  gentleman  from  Roanoke 
(Mr.  Robertson)  as  to  whether  our  work  would  not  be  so  incomplete  that  the  Con- 
stitution would  not  be  in  effect  until  we  do  adjourn.  I  respectfully  submit  that  the 
gentleman  can  ask  a  question  of  that  kind,  but  he  will  find  it  extremely  difficult  to 
support  the  affirmative  of  it. 

Can  it  be  that  this  body  is  obliged  to  adjourn  before  the  Constitution  can  go  into 
effect?  Upon  what  principle?  Upon  what  authority?  Where  is  the  reason  a  Con- 
stitution cannot  go  into  effect  while  the  Constitutional  Convention  is  in  existence? 
If  it  has  the  power  to  declare  what  shall  be,  if  it  has  the  power  to  proclaim,  where  is 
the  limit,  except  the  limit  of  common  sense,  of  justice  and  of  fairness? 

Mr.  O'Plaherty:  Did  you  take  the  position  that  the  legality  of  this  Constitution 
would  depend  upon  its  recognition  by  the  political  department  of  this  government? 

Mr.  Meredith:    Yes,  sir. 

Mr.  O'Plaherty:  If  that  is  the  case,  then,  how  can  they  recognize  a  thing  when 
they  do  not  know  what  it  is  going  to  be  in  full?    That  is  my  point  about  it. 

Mr.  Meredith:  That  is  not  the  question.  Cannot  the  gentleman  see  the  distinc- 
tion between  changing  a  Constitution  and  the  present  existence  of  a  Constitution? 
If  we  tell  them  that  this  is  the  Constitution  now,  do  they  not  know  that  is  the  Con- 
stitution that  is  to  be  obeyed  and  to  be  recognized? 

Mr.  O'Plaherty:  Just  take  the  example  I  gave  a  while  ago.  Suppose  we  change 
the  suffrage  article  after  the  Legislature  has  convened,  and  after  its  members  have 
sworn  to  support  the  Constitution  with  the  article  as  it  is  now.  Will  they  be  swear- 
ing to  support  the  Constitution  which  we  may  make  hereafter,  when  we  come  back 
here,  at  some  indefinite  period,  or  the  one  that  we  have  now? 


DEBATES  or  THE  COXSIITUTIOXAL  COXVEXTIOX  OP  YIRGIXIA. 


3283 


Mr.  Meredith:  I  presume  no  man  swears  to  support  what  is  going  to  happen 
In  the  future.  But  that  does  not  prevent  the  power  of  changing.  The  gentleman 
seems  to  think  that  inconvenience  is  a  proof  of  lack  of  power.  I  respectfully  submit 
that  it  is  not. 

Mr.  James  AV.  Gordon:  As  I  understand,  this  Convention  was  called  to  revise 
and  amend  the  Underwood  Constitution.  We  have  already  provided  that  this  Con- 
stitution which  has  been  framed,  and  which  is  a  new  and  amended  and  revised 
Constitution,  shall  go  into  effect  on  the  10th  of  July,  If  this  Convention  were  to  re- 
main in  session,  and  come  back  here  in  the  fall  and  attempt  to  exercise  any  powers, 
what  Constitution  would  its  members  then  be  amending  and  revising? 

Mr.  Meredith:  They  would  be  carrying  out  the  power  that  was  given  them  when 
they  were  called  of  amending  the  Constitution  that  they  had  suggested  as  an  amend- 
ment, but  which  they  deemed  it  necessary  to  further  amend.  That  would  be  the 
result,  in  my  opinion. 

It  is  contended  here  that  because  the  power  of  amendment  in  the  future  exists, 
as  we  claim,  therefore  the  Governor  and  the  departments  of  the  State  could  not 
recognize  and  carry  out  the  Constitution  as  it  has  now  been  promulgated.  Why,  Mr. 
Chairman,  do  v:e  not  know  that  acts  of  Assembly  are  passed  at  every  session  and 
put  in  force  and  effect,  although  they  may  be.  and  sometimes  are.  repealed  during 
the  session?  And  yet,  is  there  any  difficulty  in  recognizing  that  as  long  as  they  are 
in  existence  they  are  to  be  obeyed,  but  that  there  is  a  power  in  the  Legislature  to 
change  them  when  they  see  fit? 

I  call  attention,  Mr.  President,  to  the  fact  that  all  these  fears  of  the  gentlemen 
are  of  the  fantastic  nature  that  I  have  portrayed;  that  they  are  not  apt  to  take  place, 
that  they  are  the  extreme  instances  and  illustrations  that  these  gentlemen  take,  and 
that  they  are  of  such  a  nature  that  they  ought  not  for  one  moment  to  affect  us,  if 
we  believe  we  are  pursuing  a  wise  and  a  safe  course. 

Xow.  are  we  doing  this?    Is  this  a  wise  measure? 

It  is  certain,  Mr.  Chairman,  that  there  is  a  great  diversity  of  opinion  in  this 
State  as  to  the  power  of  the  proclamation.  It  is  certain,  Mr.  Chairman,  that  the  Re- 
publican party  of  this  State  proposes  to  make  a  fight  to  have  this  Constitution  de- 
clared null  and  void.  It  is  certain,  Mr.  Chairman,  that  one  of  the  grounds  upon  which 
they  will  make  that  fight  will  be  that  the  Convention  had  no  power  to  proclaim  the 
Constitution.  You  are  aware  of  that.  You  have  been  warned  as  to  that.  You  have 
been  told  here  deliberately  that  the  fight  will  be  made;  and  one  of  the  grounds  of  the 
fight  will  be  that  yoti  have  no  power  to  proclaim.  What  do  you  propose  to  do?  To 
disband  ourselves?  That  is  what  you  are  asked  to  do.  You  are  asked  to  deliberately 
put  yourselves  in  a  position  where  yoti  cannot  meet  that  new  situation. 

What  do  we  ask  you  to  do?  We  say  that  having  been  warned,  we  say  that  having 
been  told,  we  say  that  believing  without  having  been  told  that  a  fight  may  be  made 
upon  that  ground,  it  is  simply  the  wise  course  to  pursue  to  keep  yourselves  in  a  posi- 
tion to  meet  the  new  issue. 

Xow.  what  appeals  to  your  common-sense — not  to  your  fears,  not  to  your  dreams, 
not  to  your  extreme  views  of  illustrations,  but  what  appeals  to  your  common-sense 
as  lawyers  or  laymen  as  the  proper  course  to  pursue? 

I  respectfully  submit  that  you  ought  to  keep  yourselves  in  a  situation  where  you 
can  remedy  the  evil  if  you  have  done  the  evil;  and  1.  for  one,  no  matter  what  argu- 
ments may  be  offered  (as  they  have  been  offered  here)  that  we  are  doubting  what 
we  said  we  believed,  propose  to  pursue  the  path  of  safety  for  my  people  without 
regard  to  the  sneers  that  may  be  thrown  at  my  personal  judgment  or  wisdom;  and  I 
propose  to  take  that  course  which  will  give  my  people  safety  if  I  am  able  to  do  so. 

Sir,  suppose  we  have  this  power;  what  is  the  result?  When  we  adjourn  we  ad- 
journ. When  the  Constitution  was  proclaimed  it  became  the  Constitution;  and  we 
cannot  meet  again.  The  extent  of  the  evil  is  that  we  have  passed  a  resolution  that 
vre  cannot  carry  into  effect. 


3284  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIEGINIA. 

On  the  other  hand,  suppose  it  should  turn  out  that  we  did  not  have  the  power 
of  proclamation.  Have  we  done  the  work  the  people  called  us  to  do?  Have  we  ex- 
ercised the  power  that  was  given  us?  Have  we  become  functus  officio  because  we 
have  done  our  work,  when  the  fact  is  that  we  have  not  don©  it?  Why,  gentlemen,, 
are  you  to  reason  in  a  circle?  Are  you  to  say  that  you  are  disbanded  because  you 
have  done  your  work,  when  it  may  be  directed  by  the  decree  of  a  court  that  you 
have  not  done  it? 

Why,  Mr.  Chairman,  one  of  the  most  remarkable  things  in  this  Convention  is  to 
see  gentlemen  like  my  friend  from  Pulaski  (Mr.  Wysor),  who  argued  against  pro- 
clamation, and  denied  the  power  to  proclaim,  and,  I  believe,  my  friend  from  Not- 
toway (Mr.  Watson),  who  voted  against  proclamation,  stand  here  on  this  floor  and 
say  that  we  have  exercised  our  power  along  the  strict  lines  of  our  authority,  and 
that  our  work  is  complete.    When  did  they  come  over  to  such  a  faith? 

Mr.  Watson:  The  gentleman  has  stated  correctly  my  attitude  on  the  question 
of  proclamation.  I  voted  against  proclamation,  not  because  I  ever  doubted  the  power 
to  proclaim,  but  merely  the  wisdom  and  the  good  faith  of  the  exercise  of  that  power. 

Mr.  Meredith:  Then  I  am  glad  that  the  gentleman  is  not  of  the  new-born  in  the 
faith.  But  as  to  my  friend  from  Pulaski  (and  I  presume  there  are  others  here),  let 
us  notice  the  vote  that  is  cast  in  this  Convention,  and  see  how  many  votes  will  be 
cast  against  the  resolution  by  men  who  stood  on  this  floor  and  said  we  did  not  have 
the  power  to  proclaim.  And  yet  when  we  are  trying  to  protect  ourselves  from  the 
possible  danger  that  may  come  from  an  error  of  judgment,  these  gentlemen  are  the 
men  who  are  now  arising  and  telling  us  that  we  are  perfectly  safe,  that  we  have  only 
pursued  the  lines  of  authority  that  were  given  us,  that  the  Constitution  has  been 
adopted  in  a  proper  way,  and  that  there  is  no  necessity  for  this  resolution! 

On  the  other  hand,  Mr.  Chairman,  we  who  have  fought  for  proclamation,  we  who 
have  fought  believing  in  proclamation,  stand  here  to-day  and  say  to  you  that  while 
that  may  be  the  earnest  belief  and  the  strong  faith  on  our  part,  yet  we  believe  it 
to  be  only  wise  that  we  should  protect  the  people  from  a  possible  error  of  judgment. 

Mr.  Watson:  Will  the  gentleman  have  any  apprehension  on  the  question  of  pro- 
clamation when  the  General  Assembly  of  this  Commonwealth  shall  have  recognized 
the  instrument  as  proclaimed? 

Mr.  Meredith:  I  have  no  fears  as  to  the  power  of  a  Constitutional  Convention  to 
proclaim.  I  believe  that  it  has  the  power  to  proclaim,  and  that  recognition  by  the 
Legislature  and  the  executive  departments  simply  makes  assurance  doubly  sure  as 
to  that  power;  and  having  been  recognized  by  them  it  ought  not  to  be  a  judicial 
question.  But  who  can  tell  what  will  be  done  by  the  court  to  which  my  friend  will 
appeal,  when  the  United  States  Court  attempted  to  prevent  the  Constitutional  Con- 
vention of  South  Carolina  from  even  meeting?  How  can  you  tell  what  will  be  the 
exercise  of  the  power  of  those  courts.  Right  or  wrong,  it  makes  no  difference;  if 
it  has  the  power,  having  once  taken  the  step  of  trying  to  enjoin  a  Constitutional  Con- 
vention from  even  meeting,  do  you  not  presume  that  by  some  reason  it  can  get  up 
an  opinion  in  which  it  can  say  that  this  action  on  our  part  is  void?  It  may  under- 
take to  put  itself  behind  the  constitutional  provision  that  there  must  be  a  republican 
form  of  government,  and  maj  say  that  under  that  provision  the  people  must  vote 
upon  the  Constitution. 

I  say  it  is  a  wild  dream;  but  who  can  tell  to  what  extent  the  court  may  go,  espec- 
ially on  a  question  that  involves  a  party  measure? 

Now,  Mr.  Chairman,  you  have  had  the  warning.  This  body  has  been  told  what  it 
is  proposed  to  do.  This  body  has  an  opportunity  to  prevent  the  evil  that  may  result 
from  it.  It  is  simply  a  question  of  the  exercise  of  your  common-sense  to  protect  your- 
selves from  a  possible  danger.  It  is  along  that  line  alone,  sir,  not  designing  to  be 
over-bold,  but  simply  to  be  wisely  cautious,  that  I  have  offered  this  resolution,  so  as 
to  protect  us  as  far  as  possible  from  an  error  of  judgment;  and  I  earnestly  hope  that 
this  resolution  will  be  adopted. 


DEBATES  OE  THE  CONSTITUTIONAL  CONVENTION"  OE  VIRGINIA. 


3285 


Before  I  take  my  seat,  Mr.  President,  I  want  to  say  that  it  was  at  the  request 
of  several  members  of  this  Convention  that  I  asked  that  the  change  be  made  in  the 
resolution  so  that  it  would  read  "the  first  day  of  January,  1903." 

I  want  to  say,  Mr.  Chairman,  that  I  put  it  at  the  first  day  of  January,  1903,  for  the 
purpose  of  meeting,  as  far  as  I  could,  the  arguments  made  here  by  gentlemen  who 
claim  that  we  want  to  perpetuate  ourselves.  My  friend  from  Nottoway  went  so  far 
as  to  intimate  that  it  would  flatter  the  vanity  of  this  body  to  think  that  it  was  a 
permanent  institution.  Surely,  he  was  joking.  He  could  not  have  so  bad  an  opinion 
of  his  associates  as  to  think  they  for  one  moment  would  be  ready  to  vote  for  a  resolu- 
tion of  this  kind  through  any  such  motive.  He  must  feel  that  the  men  who  vote  for 
it  do  so  simply  in  the  interests  of  the  State,  men  who  do  not  want  to  come  back 
again,  men  who  have  suffered  by  reason  of  being  here,  but  who  are  willing  to  suffer. 

Mr.  Watson:  I  will  say  to  my  friend  that  I  do  not  have  so  bad  an  opinion  of 
my  associates  in  this  body,  because  I  do  not  believe  they  are  going  to  vote  for  it. 

Mr.  Meredith:  It  is  not  a  question  of  voting,  but  as  to  whether  you  think  they 
will  be  influenced  by  the  motives  you  have  ascribed  to  them.  I  have  said  all  I  wish 
to  say  on  this  measure.  I  have  offered  it  in  the  interests  of  the  State,  as  a  wise 
policy  to  pursue.  In  doing  so  I  have  pursued  the  same  line  I  would  pursue  as  a  lawyer 
for  a  private  client.  I  would  not  risk  any  man's  case  simply  upon  one  line  of  de- 
fense, when  I  have  two  before  me,  and  I  do  not  propose  in  this  case  to  risk  the  in- 
terests of  the  State  simply  upon  my  judgment,  which  may  be  in  error. 

The  President:  The  question  is  on  agreeing  to  the  adoption  of  the  resolution 
offered  by  the  gentleman  from  Richmond  city. 

The  question  having  been  taken,  the  result  was  announced — ayes,  20;  noes,  45 — as 
follows: 

Ayes — Messrs.  Allen,  W.  A.  Anderson,  Manly  H.  Barnes,  Thomas  H.  Barnes,  Bris- 
tow,  Brown,  Cobb,  Crismond,  Epes,  Fairfax,  B.  T.  Gordon,  Gregory,  Hancock,  Hardy, 
Mcllwaine,  Meredith,  Mundy,  Parks,  Richmond,  Tarry — 20. 

Noes — Messrs.  George  K.  Anderson,  Barbour,  Barham,  Blair,  Boaz,  Bouldin,  Brooke, 
C.  J.  Campbell,  P.  W.  Campbell,  Davis,  Dunaway,  Eggleston,  Fletcher,  Gilmore,  James 
W.  Gordon,  Green,  Gwyn,  Hunton,  Ingram,  Claggett  B.  Jones,  G.  W.  Jones,  Keezell, 
Kendall,  Lawson,  Lincoln,  Lindsay,  Lovell,  Marshall,  Miller,  Moncure,  Thomas  L. 
Moore,  O'Flaherty,  Pettit,  Phillips,  Pollard,  Portlock,  Quarles,  Rives,  Robertson,  Smith, 
Stebbins,  Stuart,  Thorn,  Thornton,  Turnbull,  Vincent,  Waddill,  Watson,  Westcott,  Willis, 
Wise,  Withers,  Woodhouse,  Wysor — 54. 

The  following  pairs  were  announced: 

Mr.  Daniel  with  Mr.  Flood;  Mr.  Garnett  with  Mr.  Hubard;  Mr.  R.  Walton  Moore 
with  Mr.  Harrison;  Mr.  Boaz  with  Mr.  Hatton;  Mr.  R.  L.  Gordon  with  Mr.  Carter. 

The  first-named  gentlemen  in  each  instance  would  have  voted  in  the  affirmative. 
The  resolution  was  rejected. 

Mr.  Withers:    Mr.  President,  I  offer  the  following  resolution: 

Resolved,  That  this  Convention  desires  to  express  and  put  on  record  its  apprecia- 
tion of  and  thanks  for  the  hospitality,  courtesy,  and  kindness  of  the  citizens  of  Rfch- 
mond,  so  cordially  and  universally  extended  to  this  body  and  every  member  thereof. 

The  resolution  was  agreed  to  unanimously. 
Mr.  Waddill:    I  offer  the  following  resolution: 

Resolved,  That  the  thanks  of  this  Convention  be  and  the  same  are  hereby  tendered 
to  the  stenographers  and  pages  of  the  Convention  for  their  faithful  and  efficient  ser- 
vices. 

The  resolution  was  adopted. 

Mr.  Thom:  Mr.  President,  yesterday,  by  the  unanimous  voice  of  this  Convention, 
a  vote  of  thanks  was  tendered  to  our  Secretary  for  his  most  courteous  attention  and 


3286  DEBATES  OE  THE  CONSTITUTIOi^AL  CONVENTION  OF  VIRGINIA. 

efficient  service.  It  was  our  purpose  then,  and  it  is  our  pleasure  now,  to  confer  upon 
him  a  somewhat  more  substantial  token  of  our  respect  and  esteem. 

For  more  than  one  year  he  has  performed  the  duties  of  the  recording  officer  of 
this  Convention.  During  the  whole  of  that  period  he  has  impressed  himself  upon  us 
by  his  fine  capacity  and  his  great  executive  ability  in  dealing  with  his  exacting  duties. 
His  official  administration  has  been  above  criticism  and  beyond  praise. 

But  it  is  not  on  that  side  alone  or  chiefly,  if  I  may  be  permitted  to  say  so,  that  he 
presents  himself  to  us.  By  his  courtesy,  by  his  kindness,  by  his  sincerity,  and  by  all 
those  qualities  that  go  to  make  up  a  lovable  man,  he  has  appealed  to  the  tender  side 
of  this  Convention,  and  has  made  each  member  of  it  his  life-long  friend.  Each  one  of 
us,  Mr.  President,  within  the  realm  of  friendship  between  man  and  man,  has  his  John 
Anderson,  his  Joe  John,  and  we  hereafter  will  realize  that  for  us,  our  John  Anderson 
is  "Our  Joe."  (Applause.) 

We  beg  that  he  will  accept  at  our  hands  this  token  of  our  respect  and  esteem  for 
him  as  an  officer,  and  of  our  friendship  and  affection  for  him  as  a  man.  (Great  ap- 
plause.) 

Colonel  Button:  Mr.  President,  officers,  and  members  of  the  Convention:  Your 
draft  upon  my  gratitude  has  bankrupted  my  vocabulary.  (Laughter.)  How  shall  I 
express  my  gratification  that  this  long  personal  and  official  fellowship  should  be 
crowned  at  its  close  with  this  expression  of  appreciation  and  kindly  feeling.  I  have  not 
words  adequate  to  disclose  the  emotions  that  swell  in  my  bosom.  The  kind  and  cour- 
teous treatment  that  I  have  received  at  the  hands  of  the  members  and  officers  of  this 
Convention,  the  pleasant  associations  and  the  delightful  friendships  formed  will  ever 
remain  green  and  unfaded  in  my  grateful  memory.  The  sincere  sentiment  of  my  heart 
for  each  one  of  you,  gentlemen,  is  that  your  pathway  through  life  may  be  strewn  with 
flowers,  flowers  that  are  ever  fresh  and  fragrant.    (Great  applause.) 

PERSONAL  EXPLANATION. 

Mr.  Lincoln:  Mr.  President,  may  I  be  allowed  just  a  word  of  personal  explanation? 
The  President:    The  gentleman  may  proceed. 

Mr.  Lincoln:  It  seems  to  me,  Mr.  President,  that  I  differ  in  my  views  from  the 
gentleman  who  voted  with  me  on  the  final  vote  on  the  adoption  of  this  Constitution, 
as  to  the  propriety  of  signing  the  Constitution  as  adopted.  I  simply  wish  to  say  that 
I  consider  the  signing  of  the  Constitution  the  equivalent  of  the  vote  that  was  cast  this 
morning  on  the  resolution  of  the  gentleman  from  Fairfax,  a  resolution  against  which 
1  heard  no  negative  vote,  and  which  was  that  the  enrolled  and  signed  copy  of  this 
Constitution  be  certified  as  the  result  of  the  work  of  this  Convention,  whether  each 
member  who  signed  it  endorsed  all  that  was  in  that  instrument  or  not.  I  wish  to  say 
that  originally,  when  the  election  was  held  for  the  purpose  of  calling  a  Constitutional 
Convention  to  revise  and  amend  the  Constitution  of  this  State,  I  voted  against  the 
proposition.  I  did  it  not  because  I  did  not  feel  that  in  many  respects  the  Constitution 
needed  amendment,  but  because  of  certain  pledges  and  Issues  made  in  the  Convention 
of  a  certain  political  party  in  this  State,  I  feared  that  it  was  called  with  a  partisan 
purpose  in  view,  and  for  that  reason  I  voted  against  the  calling  of  the  Convention. 
I  was  beaten  in  that  vote,  the  result  of  which  was  that  the  people  of  Virginia  called 
this  Convention;  afterward  the  people  in  the  county  which  I  represent  called  on  me 
to  represent  them  in  this  Convention.  They  elected  me  to  this  body,  and  I  came  here 
as  a  part  of  this  Convention.  I  came,  hoping  that  a  Constitution  would  be  adopted 
that  would  be  an  improvement  on  the  present  Constitution.  I  took  part  in  the  delib- 
erations— a  small  part,  I  must  sslj — but  I  was  present,  and  cast  my  vote  on  the  various 
propositions  that  have  come  up,  voting  against  a  great  many  of  them,  not  for  the  pur- 
pose of  preventing  the  adoption  of  a  new  Constitution,  but  in  getting  a  new  one  that 
we  might  have  a  better  one.    I  did  not  vote  for  the  propositions  for  the  purpose  of 


DEBATES  OF  THE  CONSTITUTIONAL  COXYEXTIOX  OF  YIEGIXIA.  3287 

loading  down  or  making  odious  the  instrument  that  was  adopted,  so  that  the  people 
would  vote  it  dow^n  when  it  was  submitted  to  them.  When  I  voted  against  a  proposi- 
tion I  did  so  because  I  hoped  something  better  would  be  submitted. 

When  the  final  vote  was  taken,  along  with  a  number  of  others,  I  voted  no,  not  be- 
cause I  wanted  to  defeat  the  adoption  of  a  new  Constitution  for  the  State,  but  because 
I  thought  that  if  that  Constitution,  as  proposed,  were  defeated,  this  Convention  would 
pass  in  its  stead  other  sections,  and  another  Constitution  that  would  be  more  satis- 
factory to  myself  and  those  I  represent. 

I  voted  with  that  hope,  Mr.  President — a  faint  hope,  it  may  seem,  when  the  result 
of  the  vote  is  remembered,  ninety  to  ten.  But  the  principle  is  just  the  same.  If  there 
had  been  forty  to  sixty,  as  forty-nine  to  fifty-one,  my  vote  would  have  been  just  the 
same,  in  the  hope  that  if  it  was  defeated  there  would  be  another  Constitution  adopted 
in  its  stead. 

I  believe  I  may  say  that  my  votes  in  this  Convention  have  not  been  cast  according 
to  the  tally  sheets — that  is,  for  or  against  the  proposition  as  the  majority  or  the 
minority  seemed  to  be  voting  for  or  against  it.  Whatever  may  have  been  the  majority 
against  the  Constitution,  I  voted  in  the  minority  lor  the  purpose  of  preventing  the 
adoption  of  the  instrument  that  w^as  adopted,  in  the  hope  that  another  would  be  sub- 
stituted in  its  stead,  and  that  the  State  would  have  an  improved  and  better  Constitu- 
tion. The  question  of  casting  my  vote  here  against  the  Constitution  is  a  very  differ- 
ent question  from  casting  a  vote  against  it  for  submission  to  the  people.  That  was  a 
bridge  I  did  not  attempt  to  cross  until  we  came  to  it,  and  as  I  was  prevented  from 
coming  to  that  bridge,  I  have  not  been  bothering  myself  as  to  whether  if  we  had  come 
to  it,  I  should  have  crossed  it,  swam  the  river,  or  decided  that  it  made  no  difference 
which  side  of  the  river  I  was  on. 

And  now,  in  saying  that  I  did  not  vote  for  or  against  the  various  propositions  to 
make  the  Constitution  odious  and  to  weigh  it  down,  I  do  not  wish  to  say  that  any  of 
the  nine  members  who  voted  with  me  against  the  Constitution  or  voted  against  the 
various  provisions,  ever  voted  with  that  purpose  in  view,  but  I  have  heard  it  charged 
that  some  of  them  did  so;  and,  in  fact,  have  heard  the  same  charge  made  against  some 
of  the  most  eminent  members  of  the  majority  of  the  Convention.  I  voted  against  it; 
but,  Mr.  President,  I  think  I  know  when  I  am  beaten.  This  Convention  has  adopted  a 
Constitution.  I,  this  morning,  exercised  my  privilege  of  signing  it.  I  signed  it  to  cer- 
tify it  as  the  result  of  the  work  of  this  Convention;  and  I  would  say,  that  if  I  am  con- 
vinced hereafter  that  it  is  unconstitutional — if  I  may  apply  such  a  term  to  a  Constitu- 
tion— or  if  it  contravenes  the  Constitution  of  the  United  States,  which,  I  think,  we  all 
acknowledge  is  the  higher  authority;  I  say  if  I  am  convinced  in  the  future  that  any 
section  or  the  whole  of  it  contravenes  that  Constitution  I  shall  not  consider  that  the 
fact  of  my  having  signed  my  name  to  this  instrument  precludes  me  from  doing  what 
I  can  to  establish  that  fact. 

I  deem  it  proper  to  myself  that  I  should  make  this  explanation  of  my  vote  against 
the  final  adoption  of  the  Constitution,  and  of  my  signing  the  instrument  as  adopted. 

Mr,  Stebbins:  Mr.  President,  I  desire  to  make  a  few  remarks  of  a  personal  na- 
ture, and  I  deem  this  to  be  the  best  time  I  shall  have  to  do  so. 

I  suppose  in  a  very  short  time  the  gavel  will  fall,  declaring  the  Constitutional 
Convention  adjourned  sine  die.  We  should  feel  profoundly  grateful  to  a  kind  Provi- 
dence which  has  mercifully  spared  the  lives  of  all  of  us  to  see  the  completion  of  our 
labors. 

I  am  sure  I  voice  the  sentiments  of  every  member  of  this  body  when  I  say  that 
we  are  extremely  gratified  that  our  long  and  arduous  labors  are  at  an  end;  the  im- 
portant mission  which  called  us  together  has  been  accomplished;  and  we  leave  to  the 
tribunal  of  public  opinion  to  decide  whether  our  work  measures  up  to  the  hopes  and 
expectations  of  those  by  whose  partiality  and  kindness  we  were  sent  here. 

"When  w-e  assembled  here  on  that  bright  June  day,  now  more  than  a  year  ago, 


\ 

3288  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

none  of  us  realized  the  difficulties  which  lay  before  us,  or  the  magnitude  of  the  work 
we  had  undertaken.  Only  as  we  progressed  in  our  work  did  it  dawn  upon  us  that 
outside  of  the  difficult  and  perplexing  subject  of  suffrage,  to  adjust  the  State  in  her 
organic  law  to  present  economic  conditions  was  a  task  the  magnitude  of  which  the 
people  of  Virginia  had  never  before  undertaken.  Speaking  for  my  colleagues,  I  can 
say  that  never  was  responsibility  met  in  a  more  patriotic  and  courageous  way.  Pri- 
vate interests  have  been  subordinated  to  a  supreme  desire  to  promote  only  the  wel- 
fare and  glory  of  the  Commonwealth,  and  the  happiness  and  prosperity  of  her  people. 
The  personal  sacrifice  of  each  member  cannot  be  computed.  That  we  have  made  mis- 
takes no  one  will  deny,  for  imperfection  is  written  on  everything  that  is  human;  but 
v/e  can  return  to  our  homes  with  an  approving  conscience,  realizing  that  we  have  done 
our  duty  to  the  full  measure  of  the  ability  with  which  we  are  endowed,  and  believing 
an  enlightened  public  sentiment  will  approve  what  we  have  done. 

Before  we  disperse  to  our  homes  and  resume  our  ordinary  vocations  I  wish  to  bear 
my  humble  testimony  to  the  absolute  fairness  and  impartiality  which  has  character- 
ized the  rulings  of  our  distinguished  President,  and  the  dignity  and  propriety  with 
which  he  has  presided  over  the  deliberations  of  this  body. 

When  I  came  here  my  personal  acquaintance  with  him  was  but  slight.  I  knew  of 
him  as  one  who,  for  half  a  century,  had  been  prominent  in  the  councils  of  the  State, 
and  in  shaping  her  policy  in  some  of  the  most  critical  periods  of  her  history.  A  Vir- 
ginian by  birth,  imbued  in  his  very  nature  with  her  history  and  traditions,  a  loyal,  de- 
voted son,  he  brought  as  an  equipment  for  this  position  exalted  character,  mature 
judgment,  ripe  experience,  reverence  for  the  past,  a  firm  and  intelligent  grasp  of  the 
present  and  a  hopeful  outlook  for  the  future.  Although  the  frosts  of  many  winters 
adorn  his  brow,  his  eye  is  undimmed,  his  natural  strength  is  unabated,  and  within  his 
bosom  beats  a  heart  as  warm  and  as  tender  as  when  in  young  manhood's  prime. 

I  know  of  no  more  appropriate  title  to  ascribe  to  him  than  that  which  has  been 
applied  to  England's  great  premier  and  untitled  lord;  and  I  hail  him  as  Virginia's 
"grand  old  man."    In  honoring  him  for  this  position  we  have  honored  ourselves. 

I  cannot  let  this  opportunity  pass  without  saying  something  of  the  courtesy  and 
kindness  that  has  characterized  the  conduct  of  all  the  members  during  these  delibera- 
tions, the  patience  and  kindness  which  the  older  and  more  experienced  have  exhibited 
toward  those  who  were  novices  in  a  deliberative  body,  the  mutual  helpfulness  extended 
each  other,  and  the  deference  and  respect  shown  for  each  other's  opinions.  While  the 
debates  have  been  marked  by  earnestness  and,  at  times,  with  warmth,  the  uniform 
courtesy  displayed  has  obliterated  all  personal  feeling,  and  left  no  scars;  and  each  one 
leaves  here  feeling  that  each  of  his  colleagues  is  his  personal  friend. 

I  should  be  remiss  in  my  duty  if  I  should  omit  to  bear  testimony  to  the  fidelity  and 
efficiency  of  the  clerks  of  the  Convention,  and  of  the  various  committees,  and  the 
pages,  and  other  employees  of  the  Convention,  whose  labors  have  added  greatly  to 
our  comfort  and  convenience. 

A  realization  of  mutual  trials  shared  and  mutual  burdens  borne  in  a  common  work 
has  created  in  our  breasts  a  spirit  of  fellowship  and  comradeship,  and  ties  of  friend- 
ship have  been  formed  which  only  death  can  sever.  Often  in  our  quiet  hours  will  our 
minds  revert  to  those  with  whom  we  have  been  so  pleasantly  associated  in  the  Conven- 
tion of  1901-1902,  and  in  after  years  as  we  may  meet,  we  will  delight  to  recall  the  days 
passed  here  together. 

I  shall  carrj'-  with  me  from  this  hall  feelings  of  the  most  profound  respect  and  af- 
fectionate regard  for  each  one  of  you.  We  part;  each  one  will  take  up  the  thread  of 
his  daily  life;  some  of  us  will  never  meet  again  in  this  world.  God  grant  that  all  of 
us  may  meet  in  "the  general  assembly  and  church  of  the  first-bom  in  heaven."  (Great 
applause.) 

Mr.  Waddill:    Mr.  President,  I  beg  leave  to  offer  the  following  resolution: 


DEBATES  OF  THE  COXSTITUTIOXAL  COXYEXTIOX  OF  YIEGIXIA.  3289 


Resolved,  That  the  thanks  of  this  Convention  be  and  they  are  herebj'  tendered 
the  assistant  secretaries,  Messrs.  George  Lindsaj^  and  J.  N.  Brennaman,  and  other  offi- 
cers and  employees  of  the  Convention  not  embraced  in  the  resolutions  heretofore 
offered,  for  the  faithful  manner  in  which  they  have  discharged  their  respective  duties. 

The  resolution  vras  adopted. 

Mr.  Garnett:    Mr.  Chairman,  I  offer  the  following  resolution: 

Resolved,  That  the  thanks  of  this  Convention  be  tendered  to  the  ministers  of  the 
Gospel  who  have  opened  the  sessions  of  this  Convention  with  prayer. 

The  resolution  was  adopted. 

On  motion  of  Mr.  Westcott  a  recess  was  taken  until  4  o'clock  P. 

AFTER  RECESS. 

The  Convention  reassembled  at  the  expiration  of  the  recess,  Mr.  Thom  in  the  chair. 

The  Acting  Chairman:  The  Chair  understands  that  the  gentleman  from  Roanoke 
(Mr.  Robertson)  has  the  floor. 

Mr.  Robertson:  The  Chair  insists  upon  the  gentleman  from  Roanoke  getting  on 
the  floor.  As  I  do  not  know  of  any  way  of  disobeying  the  Chair,  I  will  have  to  take 
the  floor. 

I  suppose  this  is  as  good  a  time  as  any  to  rise  to  a  question  of  personal  privilege. 

It  seems  that  nearly  every  member  here  desires  to  have  expunged  from  the  record 
anything  that  is  disagreeable  to  other  people,  and  I  therefore  desire  to  ask  this  Con- 
vention, if  in  any  of  the  few  arguments  that  I  have  had  the  honor  and  pleasure  of 
making  before  this  body  I  have  said  anything  disagreeable  to  any  gentleman  upon  this 
floor,  that  it  be  expunged  from  the  record.  (Laughter.)  I  am  not  conscious  myself 
of  having  said  anything  of  the  kind;  but  people's  tastes  differ  about  what  is  agreeable 
and  what  is  disagreeable.  Very  often  a  joke  is  very  agreeable  to  the  joker  when  it  is 
very  disagreeable  to  the  jokee.  (Laughter.) 

I  desire  that  if  any  gentleman  upon  this  floor  feels  that  he  has  been  aggrieved 
by  anything  I  have  said,  either  by  way  of  pleasantry,  or  by  serious  condemnation,  or 
appeal  to  conscience,  or  anything  of  that  ki.nd,  he  will  consider  it  not  in  the  record, 
because  I  desire  to  part  from  this  Convention  with  a  feeling  of  love  and  respect  in 
my  heart  for  every  member  of  it. 

I  can  say,  in  all  seriousness,  I  have  never  been  with  a  body  of  men  who  appealed 
more  to  my  heart  than  the  gentlemen  who  constitute  this  Convention.  I  have  not 
only  renewed  the  friendships  of  my  youth,  but  I  have  formed  new  ties  here  that  I  will 
consider  the  most  valuable  possessions  of  my  life. 

If  I  have  accomplished  nothing  else — and  you  gentlemen  know  that  I  have  occa- 
sionally been  in  the  minority  in  this  body  (laughter) — I  have  formed  friendships  here 
that  I  know  will  do  me  good,  whether  we  have  done  the  State  of  Virginia  any  good  or 
not.  (Laughter.)  I  believe  though,  gentlemen,  in  all  seriousness,  that  we  have  done 
the  State  a  great  deal  of  good.  We  have  discussed  everything  on  the  face  of  the  earth, 
on  the  face  of  the  waters  under  the  earth,  and  everything  above  the  earth.  (Laughter.) 
We  have  turned  everything  upside  down,  discussed  it  and  rediscussed  it  and  considered 
it.  And  if  there  be  any  wrong  in  the  Commonwealth,  the  people,  who  will  certainly 
read  the  reports  of  our  speeches  as  soon  as  we  get  them  thoroughly  edited  and  pub- 
lished, will  find  out  about  it,  and  I  have  no  doubt  they  will  call  another  Constitutional 
Convention  inside  of  a  very  few  years  to  discuss  the  few  matters  that  we  have  not 
disposed  of  in  this  body.    (Greai  daughter  and  applause.)  ' 

Mr.  O'Flaherty:    Mr.  President,  I  have  a  resolution  here  which  I  wish  to  offer: 

Resolved,  That  the  thanks  of  the  Convention  be  tendered  to  C.  A.  Boyce,  Andrew 
Joyner,  Horace  A.  Hawkins,  A.  H.  Taylor,  Walter  E.  Harris,  E.  D.  Chesterman,  and  E. 
207 — Const.  Deb. 


3290  DEBATES  OF  THE  CONSTITUTIONAL  CONVENTION  OF  VIRGINIA. 

G.  Walker,  of  the  Washington  Post,  the  fair  and  gentlemanly  correspondents,  who  have 
so  faithfully  and  ably  reported  the  proceedings  of  this  Convention;  and  that  a  copy  of 
this  resolution  be  furnished  each  of  these  gentlemen  by  the  Secretary  of  the  Convention. 

Mr.  President,  I  think  it  is  not  necessary  to  say  anything  in  reference  to  that 
resolution.  I  believe  every  gentleman  here  will  very  gladly  vote  for  it,  as  a  just 
compliment  to  the  gentlemen  who  have  so  ably  reported  the  proceedings  of  the  Con- 
vention. 

The  resolution  was  adopted. 

Mr.  R.  Walton  Moore:  I  move  that  the  unfinished  business  be  now  taken  up,  and 
:hat  we  dispense  with  the  reading  of  the  ordinance.  I  understand  the  only  changes 
that  have  been  made  are  in  respect  to  some  names  of  members  of  the  registration 
boards  of  some  of  the  counties.  I  do  not  conceive  that  it  is  necessary  to  have  the  ordi- 
nance read  at  length.    I  move  that  the  ordinance  as  now  reported  be  adopted. 

The  ordinance  was  adopted. 

Mr.  R,  Walton  Moore:    I  move  that  the  Convention  do  now  adjourn  sine  die. 

Mr.  Lindsay:  One  moment.  Ordinance  No.  2  has  not  been  adopted  by  the  Con- 
vention. That  ordinance  was  referred  to  the  Committee  on  Enrollment.  It  is  in  refer- 
ence to  the  charters.    I  move  the  adoption  of  that  ordinance  without  reading. 

The  ordinance  was  adopted. 

Mr.  R.  Walton  Moore:  Mr.  President,  unless  there  is  some  other  business  which 
the  Convention  desires  to  transact,  I  wish  to  have  the  honor  of  making  the  motion 
that  the  Convention  adjourn  sine  die.  Of  course,  if  there  is  other  business  that  ought 
to  be  attended  to,  the  motion  will  be  withdrawn  for  that  purpose. 

Mr.  T.  L.  Moore:  Mr.  President,  I  would  like  to  suggest  to  the  g!entleman  from 
Fairfax  that  I  think  that  is  my  motion.  (Laughter.)  I  think  I  am  entitled  to  the 
privilege  of  now  having  that  resolution  taken  from  the  desk.  (Laughter.) 

The  President:  The  gentleman  from  Fairfax  (Mr.  Moore) — and  he  is  reinforced 
by  the  gentleman  from  Montgomery  (Mr.  Moore) — moves  that  the  Convention  do  now 
adjourn  sine  die. 

The  motion  was  agreed  to. 

The  President:  Gentlemen  of  the  Convention,  it  only  remains  now  for  me  to  de- 
clare this  Convention  adjourned  sine  die.    (Cheers  and  applause.) 

The  Convention  thereupon  (at  4  o'clock  and  45  minutes  P.  M.)  adjourned  sine  die. 


I  N  13  X 


A 

Adjournment:    To    what   time,  debate, 

3266-85;  sine  die,  3290. 
Adoption  of  Constitution:      Method  of, 

3100-3260. 

Agriculture  and  Immigration:  Report  of 
committee.  2040;  amendments  and 
debate,  2040-96. 

Allen,  Otway  S.:  Election  to  succeed 
Virginius  Newton,  1425. 

Amendments  to  Constitution:  How  may 
be  proposed,  2610-24,  2752-9. 

Amendment  to  rules,  2931-6. 

Anderson,  George  K.:  On  oath,  16;  ma- 
jority verdict,  420-28,  908;  judiciary, 
1474-6;  judges'  salaries,  1731-5;  cor- 
porations, 2846-8. 

Anderson,  William  A.:  Majority  verdict, 
419-20;  superintendent  of  public  in- 
struction, 1114-6;  judiciary,  1522-4; 
corporations,  2392-4,  2395-2403,2805-6. 

Appeal:    Right  of,  393-6,  917. 

Appropriations:  To  sectarian  institu- 
tions, 783-818;  schools,  1244-8;  Uni- 
versity of  Virginia,  1712-21. 

Assassination  of  President  McKinley: 
Remarks  by  W.  E.  Cameron,  John 
W.  Daniel  and  R.  W.  Blair,  318-9; 
resolutions  of  respect,  415;  commit- 
tees under  resolutions,  435;  memorial 
exercises,  471-87;  resolutions  acknow- 
ledged, 687. 

Auditor  of  public  accounts,  2741-3. 

Ayers,  Rufus  A.:  On  oath,  29;  bill  of 
rights,  243-55;  quadrennial  sessions, 
513-5;  abolishing  treasurers,  876-8; 
executive  department,  1044-6;  peni- 
tentiary, 1249-53,  1263-6;  state  hospi- 
tal boards,  1289-90;  corporations, 
2813-4,  2829-31. 

B 

Barbour,  John  S.:  Bill  of  rights,  174- 
83;  smaller  juries,  364-5,  898;  ma- 
jority verdict,  431-5;  trial  without 
jury,  890-91;  executive  department, 
1039-40;  judiciary,  1358,  1419-21; 
intoxicating  liquors,   2137-9,  2578-86. 

Barnes,  M.  H.:  Quadrennial  sessions, 
556-9;  abolishing  treasurers,  877-8; 
commissioners  of  revenue,  958-61; 
State  hospital  boards,  1294. 

Barbour-Quarles  Resolution:  (See  "In- 
toxicating Liquors.") 

Blair,  R.W.:  Assassination  of  McKinley, 
319;  McKinley  memorial,  485-7;  board 
of  education,  1095-6;  corporations. 
2404-6;  suffrage,  3077-9;  method  of 
adopting  constitution,  3116-39. 

L 


Board  of  Education:    Composition,  1791- 
1815;    powers    and    duties,  1815-27. 
Board  of  Public  Works:    Abolition  of, 
2501.      (See   "Corporation  Commis- 
sion.") 

Board  of  Supervisors:  Their  duties,  982- 
1010,  1786-90;  power  to  create  bonded 
debt,  2891-2. 
Boaz,  William  A.:  Quadrennial  sessions 
of  legislature,  491-3,  561-2;  commis- 
sioners of  revenue,  925-27;  board  of 
supervisors,  997,  1003;  Univ.  of  Va. 
appropriation,  1713. 
Bouldin,  Wood:  Majority  verdict,  906-7; 
board  of  supervisors,  991-3;  judiciary, 
1607-9;  board  of  education  1801-2; 
method  of  adopting  constitution, 
3163-77. 

Braxton,  A.  C:  Against  taking  oath,  4, 
7,  56-71;  trial  without  jury,  381-9; 
majority  verdict,  396-404,  446-55; 
abolish  committee  of  whole,  831-35; 
term  of  treasurers,  840-44;  trial  with- 
out jury,  880-82,  895;  majority  ver- 
dict, 900-904;  freedom  of  speech,  910- 
16;  board  of  education,  1065-66;  judi- 
ciary, 1458-66,  1477-9,  1583-6;  muni- 
cipal franchises,  1974-7;  corporations, 
majority  report,  2140-71,  2228-34,  2419- 
53,  2487-9,  2559-63;  taxation,  2696- 
2700;  suffrage,  3008-10. 
Brooke,  D.  Tucker:  Trial  without  jury, 
884-6;  board  of  education,  1165-6; 
judiciary,  1415-19;  municipal  corpora- 
tions, 1888-99;  franchises,  2038-40; 
corporations,  2209-19. 
Brown,  J.  Thompson:  Quadrennial  ses- 
sions, 578-80;  special  legislation,  658, 
669,  676;  abolish  committee  of  whole, 
827-29;  board  of  education,  1074-5, 
1125-8;  state  penitentiary,  1273-5; 
judiciary,  1652-5;  agriculture  and  im- 
migration, 2056-62. 

C 

Cameron,  William  E.:  On  oath  71-78; 
bill  of  rights,  194-204;  personal  state- 
ment, 205;  assassination  of  McKinley, 
318;  executive  department  report, 
1025,  1030;  judiciary,  1421-25,  1629-31. 
Campbell,  C.  J.:  Bill  of  rights,  256-259; 
board  of  super^'isors,  1005-6;  board  of 
education,  1073-4,  1087-8;  judiciary, 
1492-1503. 

Campbell,  P.  W.:  Personal  explanation, 
230;  judiciary,  1476-7;  Univ.  of  Va. 
appropriation,  1718-9;  intoxicating 
liquors,  2605. 
Cardwell,  Richard  H.:  McKinley  memo- 
rial, 476-7. 

3291  1 


3292 


INDEX 


Carter,  Hill:  Bill  of  rights,  164-173; 
condemning  property,  707-11;  judi- 
ciary, 1376-80;  intoxicating  liquors, 
2114-6;  method  of  adopting  constitu- 
tion, 3188-97. 

Commissioners  of  the  Revenue:  How  ap- 
pointed and  term  of  office,  924-73; 
re-election,  1780-6. 

Compulsory  Education,  1232-7,  1835-8. 

Commonwealth  Attorney,  1772-8. 

County  Officers:  See  specific  heads,  as 
"Board  of  Supervisors;"  Treasur- 
ers;" etc.;  mode  of  election.,  1769-82. 

County  Organization:  Report  of  commit- 
tee, 683-4;  minority  report,  684-5; 
consideration  of  majority  report, 
818-825,  835-1010,  1013,  1024;  county 
officers,  1764-90;  adoption  of  report, 
1790. 

Committee  of  Whole:  Discussion  of,  319, 
825-35;  votes  to  abolish,  458-9,  835. 

Committees:  On  organization,  25;  privi- 
leges and  elections,  25;  rules,  25;  re- 
porting and  publishing,  25;  standing 
committees,  26-27,  89;  death  of  Presi- 
dent McKinley,  435;  on  auditing,  641- 
51. 

Common  Carriers:  Control  of,  2196-2219; 
rates,  2219-43,  2257-2512;  statistics, 
2257-66,  2274-2305,  2383-92;  negligence 
of,  2358-9;  charters,  2505-8;  right  of 
way,  conflict  with  telegraph  and  tele- 
phone companies,  2513-32;  abolition 
of  free  pass,  2532-3;  abridgment  of 
state's  right  to  control,  2534;  lia- 
bility of  employee  of,  2572-3.  (See 
"Corporation  Commission;"  "Cor- 
porations;" "Telegraph  and  Tele- 
phones.") 

Constitution  of  United  States:  Supre- 
macy of,  310-16. 

Contested  Election  Case:  Argued,  683, 
686;  vote  on  same,  686. 

Corporation  Commission:  Need  of,  2270; 
power  of  convention  to  create,  2315- 
20,  2329-33;  how  appointed,  2337-39, 
2340-48;  powers  in  general,  2376-82, 
2429-35,  2436-44;  sec.  4,  A.  B.,  2454-5, 
2459-2571;  power  to  fix  rates,  2459-71; 
-relation  to  supreme  court,  2468;  ap- 
peal from  action  of,  2471-2,  2475-84; 
right  of  individual  to  present  suit  to, 
2484-98;  recommendations  to  gover- 
nor, 2500-1;  power  of  general  assem- 
bly to  amend  sections  governing 
authority  of,  2501-2;  annual  reports  of 
2534;  sections  governing,  2536-65; 
political  affiliation  of  members  of, 
2565-7;  salaries  and  terms,  2567-9, 
2780-93;  members  of  convention  ineli- 
gible, 2854-6. 

Corporation  Courts:    Abolition  of,  1722-4. 

Corporations:  Reports  and  debates,  2140- 
2579;  majority  report,  2140-71; 
minority  views,  2172-96;  control  of 
common  carriers,  2196-2209;  regula- 
tion of  rates,  2219-43;  state's  power, 


2221;  state's  duty,  2227;  fixing  of  rate 
a  legislative  function,  2233;  review 
by  supreme  court,  2234;  railway 
passes,  2253;  rate  statistics,  2257-66; 
Baxter's  defense  of,  2268;  corpora- 
tion commission,  2270;  rate  discrimi- 
nation, 2274-2305;  Hotchkiss'  state- 
ment, 2311-13;  power  of  convention 
to  create  commission,  2315-20,  2329- 
33;  carriers  and  telegraph  companies, 
2357-9;  negligence  of  carriers,  2358-9; 
demand  for  legislation  regarding, 
2365-8;  powers  of  corporation  com- 
mission in  general,  2376-82;  Lums- 
den's  statement,  2383-5;  general  de- 
bate, 2386;  sec.  4  of  report,  2454; 
sec.  4,  subsec.  B,  2454-5;  amend- 
ments adopted,  2455;  further  amend- 
ments and  debate,  2456-65;  sub- 
sec.  C,  2466-71;  subsec.  D,  2471-5; 
subsec.  E,  2475-6;  subsec.  F,  247^-9; 
subsec.  G,  2479-84;  subsec.  H,  2484- 
2500;  subsecs.  I,  J,  K,  L,  2500-5;  sec. 
5,  2505-8;  sees.  6-20,  2508-34,  sees.  2, 
3,  2534-69;  sec.  18,  2570-1;  sec.  11, 
2572-8;  legislature's  power  to  amend 
sections  named,  2501-2;  foreign  cor- 
porations, 2533-4;  revocation  of 
charters  of  domestic  corpora- 
tions, 2534;  extension  and  amend- 
ment of  charters,  2534-6;  issue 
of  stocks  and  bonds  by,  2570-1;  lia- 
bility of  employees  of,  2572-3;  defini- 
tion of,  2573-7;  report  as  amended, 
2578;  common  carriers,  2775-6;  con- 
sideration of  various  subsections, 
2794-2835;  fellow  servants,  2835;  con- 
tributory negligence,  2835-54;  mem- 
bers of  convention  not  eligible  to  cor- 
poration commission,  2854-6;  report 
referred  to  committee  on  final  adjust- 
ment, 2856. 

D 

Daniel,  John  W.:  On  oath,  9,  43-47;  as- 
sassination of  McKinley,  318;  ma- 
jority verdict,  418-19;  quadrennial 
sessions,  517-22;  suffrage,  2943-57; 
■iiethod  of  adopting  constitution, 
3100-4. 

Davis,   B.   A.:    On  oath,   84;  judiciary, 

]  557-8;  suffrage,  3058-61. 
Debate:    Limiting,    615,    879;    vote  on 

same,  924. 

Division  of  govermental  powers,  2097. 
(See  "Preamble  and  Bill  of  Rights.") 

Dunaway,  W.  F.:  Bill  of  rights,  160-164; 
special  legislation,  666-7 ;  to  incorpor- 
ate churches,  744-55;  appropriations 
to  sectarian  institutions,  795-806; 
term  of  sheriffs,  820-21;  compulsory 
education,  1232;  state  penitentiary, 
1253,  1278-9;  judiciary,  1405-8,  1428- 
31,  1504-7;  school  bonds,  2021-3,  in- 
toxic-ating  liquors,  2602-5;  suffrage, 
3014-6;  method  of  adopting  consti- 
tution, 3197-3203;  adjournment, 
3268-9. 


INDEX 


3293 


E 

Education:  Report  of  committee,  1018-9, 
1050-1195,  1197-1248,  16G2-1704;  main- 
tenance of  University  of  Virginia, 
1712-21,  1751-64;  state  board  of  educa- 
tion, 1791-1827;  school  trustees,  1828- 
30;  election  of  superintendent  of  pub- 
lic instruction,  1830-2;  literary  funds, 
1832-3;  free  text-books,  1834-5;  com- 
pulsory education,  1835-8;  state  in- 
stitutions. 1838-42;  boards  of  visitors, 
1842-4;  Univ.  of  Va.  appropriation, 
1995;  school  bonds,  2005-2024;  adop- 
tion of  report,  2024. 

Eggleston,  D.  Q. :  Quadrennial  sessions, 
586-98;  commissioners  of  revenue, 
936-7,  957;  board  of  supervisors,  1009; 
board  of  education,  1202;  state  hospi- 
tal boards,  1295-7;  judiciary,  1598- 
1601,  1631-4;  school  funds.  1663-5; 
board  of  education,  1791-93,  1806-9. 

Elective  Franchise:  Report  of  commit- 
tee, 599-603;  minority  report,  603-6, 
620-8;  the  suffrage  article,  2937-40; 
proposed  amendments  and  debate  on 
suffrage  article,  2940-3080. 

Employer's  Liability:  Section  govern- 
ing, 2572-3. 

Executive  Department:  Report  of  com- 
mittee, 1011-13,  1025,  1050;  election 
of  governor,  1872-3;  duties  of  gover- 
nor, 1873-4;  governor's  veto,  1874-9; 
lieutenant-governor,  1879-81;  secre- 
tary of  the  commonvi^ealth,  1881-7, 
2727-33;  public  printer,  2734-7;  state 
treasurer,  2739-41;  auditor  of  ac- 
counts, 2741-3,  2744. 

F 

Fairfax,  Henry:  Commissioners  of  re- 
venue, 929-30;  Univ.  of  Va.  appropria- 
tion, 1760. 

Final  revision  and  adjustment,  3096-9; 
schedule,  3097-8,  3260-1. 

Flood,  H.  D.:  Bill  of  rights,  278-290; 
parliamentary  rules,  546,  549;  board 
of  education,  1210-12;  state  peniten- 
tiary, 1269-70;  corporations,  2785-9. 

Foreign  corporations:  Powers  in  Vir- 
ginia, 2533-4.    (See  "Corporations.") 

Franchise  tax,  2641-3,  2856-60. 

Freedom  of  speech,  910-16. 

Free  Pass:  Abolition  of,  2532-3.  (See 
"Common  Carriers.") 

G 

Garnett,  G.  T.:  Board  of  education,  1139- 
40;  intoxicating  liquors,  2116-9. 

Gillespie,  A.  P.:  Taxation  and  finance, 
2651-2;  suffrage,  3010-4. 

Glass,  Carter:  On  oath,  13;  bill  of  rights, 
291-307;  to  incorporate  churches,  767- 
71;  board  of  education,  1081-3,  1101-3, 
n40-4;  school  funds,  1218-21;  judi- 
ciary, 1540-2;  education,  1677-8; 
Univ.  of  Va  appropriation,  1715-7, 
1761-2;  method  of  adopting  constitu- 
tion, 3257-8. 


Goode,  John:  Address  as  president,  19- 
22;  McKinley  memorial,  471-3;  appro- 
priations to  sectarian  institutions, 
787-9;  acceptance  of  testimonial, 
3264-5. 

Gordon,  James  W..  Bill, of  rights,  231-3; 
majority  verdict,  444-6,  board 
of  education,  1174-6;  judiciary,  1533-4, 
1740-1,  1743-4;  cit^  treasurers,  1931-3. 

Gordon,  R.  Lindsay:  Abolishing  treasur- 
ers, 859-61;  commissioners  of  re- 
venue, 935-6;  state  charities,  1236; 
agriculture  and  immigration,  2048-9, 
2076-8;  suffrage,  3021-2,  3061-5. 

Governor:  Election  of,  1872-3;  duties, 
1873-4;  veto  power,  1874-9. 

Green,  Berryman:  On  oath,  7;  bill  ot 
rights,  100-107;  smaller  juries,  373-5; 
trial  without  juries,  889-90;  corpora- 
tions, 2812-3;  adjournment,  3274-6. 

Gregory,  Roger:  University  of  Virginia 
appropriation,  1717-8. 

H 

Hamilton,  Alexander:  On  oath,  5;  quad- 
lennial  sessions,  536-40;  auditing  com- 
mittee, 641-2;  appropriations  to  sec- 
tarian institutions,  789-91;  term  of 
treasurer,  977-8;  board  of  education, 
1130-1,  1802-4 ;  j  u  d  i  ci  a  r  y,  1655-6 ; 
school  bonds,  2016-21;  corporations, 
2329-59,  2513-6;  taxation,  2625-8;  suf- 
frage, 3066. 

Hancock,  B.  A.:  Bill  of  rights,  234-242; 
committee  of  whole.  326-328;  smaller 
juries,  368-73;  quadrennial  sessions, 
567-78;  special  legislation,  663-5; 
abolishing  treasurers,  863-7 ;  commis- 
sioners of  revenue,  937-44,  970-3; 
term  of  treasurers,  978;  board  of 
supervisors,  997-9;  board  of  educa- 
tion, 1149-50;  state  hospital  boards, 
1297-8;  judiciary,  1356-8;  school  funds, 
1678-81;  corporations,  2521-3;  suf- 
fraa-e,  3006-7;  3073  6;  adjournment, 
3271-2. 

Hardy,  L.  A.:  State  penitentiary,  1272-3; 
state  hospital  boards,  1297. 

Harrison,  T.  W.:  Bill  of  rights,  155-160; 
quadrennial  election  house  of  dele- 
gates, 459-60,  488-91;  commissioners 
of  revenue,  965-6;  term  of  treasurers, 
979;  board  of  education,  1077-9;  judi- 
ciary, 1403-1405,  1641-4;  city  councils, 
1934;  corporations,  2314-20;  how 
amendments  to  constitution  to  be 
proposed,  2611-3;  method  of  adopting 
constitution,  3104-16. 

Hatton,  Goodrich:  Bill  of  rights,  113- 
6;  quadrennial  sessions,  583-6;  con- 
demning property,  720-22;  judiciary, 
1525-7;  taxation,  2628-32;  suffrage, 
3016-7. 

Heirs  of  property,  slaves,  etc.,  2108.  (See 
"Preamble  Bill  of  Rights.") 

Hospitals  for  the  Insane:  Board  of 
directors  of,  1288-1304. 


3294 


INDE  X 


House  of  Delegates:  Who  are  eligible, 
616;  pay  of  members,  618;  time  of 
meeting,  618;  powers  and  privileges, 
618-19. 

Hubard,  E.  W.:  Agriculture  and  immi- 
gration, 2063-4;  intoxicating  liquors, 
2593-4. 

Hunton,  Eppa:  Right  of  appeal,  393-5; 
majority  verdict,  436-44;  county  offi- 
cers, 1008;  state  penitentiary,  1261-2, 
1270-2;  judiciary,  1306-12,  1362-4, 
1432-9,  1534-40,  1723-4,1735-6;  corpora- 
tions, minority  report,  2171-2196;  cor- 
porations, 2311-4. 


Impeachment:  Proceedings,  634;  what 
officers  liable  to,  637-641. 

Inauguration:  State  officers,  1707;  ad- 
dress of  President,  1708-9;  inaugural 
address,  1709-11. 

Industrial  and  Manufacturing  Interests: 
(See  "Agriculture  and  Immigration.") 

Ingram,  J.  H.:  On  oath,  47-50;  McKinley 
memorial,  482-4;  condemning  prop- 
erty, 714-20;  judiciary,  1390-93;  legis- 
lative department,  1845-8;  corpora- 
tions, 2196-2209;  suffrage,  3072-3. 

Interstate  Commerce  Act:  Corporation 
committee's  minority  report  based 
upon,  2217;  interstate  commerce  com- 
mission, 2218,  2228-30,  2235-7,  2241-2, 
2252,  2274-6,  2295-8,  2315.  (Seq  "Com- 
mon Carriers;"  "Corporation  Commis- 
t3ion;"  "Corporations.") 

Intoxicating  Liquors:  Sale  of,  2108-39; 
dispensary,  amendment  proposing, 
2137;  debate  on  same,  2137-9,  2578- 
2610;  motion  to  strike  out  dispensary 
clause,  2598,  2748-52. 

J 

Judiciary:  Debate  on  report,  1306-1662; 
system  of  courts,  1306-1450;  com- 
position of  circuits,  1451-1543;  selec- 
tion of  judge,  1543-73;  salaries  of 
judges,  1573-1612,  1725-39;  supreme 
court  jurisdiction,  1613-35;  arrange- 
ment of  circuits,  1635-62,  1721;  cor- 
poration court,  1722-4;  justices  of  the 
peace,  1740-7;  adoption  of  report, 
1750;  supreme  court  judges,  1888; 
additional  section  reported,  3045; 
corporation  court  judges,  3082. 

Judicial  Circuits:  Composition,  1504, 
1721. 

Jury:  Trial  without,  331-54,  879-97,  381- 
393;  number  to  compose,  355,  456-7, 
899;  majority  verdict,  396-455,  900- 
909. 

Justices  of  the  Peace:  Statutory  pro- 
visions, 1740-6. 

K 

Keezell,  George  B.:  Bill  of  rights,  183- 
188;  auditing  committee,  647-9;  spe- 
cial legislation,  662-3,  681-2;  term  of 


treasurers,  838-40;  abolishing  treas- 
urers, 861-63;  commissioners  of 
revenue,  930-32;  board  of  supervisors, 
9S7-S,  1009-10;  term  of  treasurer, 
1019-22;  board  of  education,  1067-71, 
1088-93,  1134-5,  1180-1;  state  peniten- 
tiary, 1275-7 ;  judiciary,  1468-74, 
1520-2;  Univ.  of  Va.  appropriation, 
1714-5,  1755-7;  re-election  of  treasur- 
ers, 1767-9;  school  bonds.  2008-15; 
suffrage,  3007-8. 
Kendall,  Gilmor  S.:  Quadrennial  ses- 
sions, 507-9;  special  legislation,  676-7; 
abolishing  treasurers,  875-6;  com- 
missioners of  revenue,  957-8;  board  of 
education,  1136-7;  corporations,  2219- 
28,  2234-43;  intoxicating  liquors, 
2599-2600;  corporations,  2783-4. 

L 

Legislative  Department:  Report  of  com- 
mittee, 188-194;  minority  reports, 
204,  355;  quadrennial  sessions,  459-71, 
488-615;  members  free  from  arrest, 
628;  how  committees  are  discharged, 
629;  how  laws  are  enacted,  629-30; 
standing  committee,  631;  title  of 
laws,  631;  when  laws  take  etfect,  634; 
method  of  impeachment,  634-5;  ap- 
portionment for  members  of  con- 
gress, 635;  private  laws,  651;  biennial 
sessions,  1845-55;  adoption  of  report, 
1871. 

Lieutenant-Governor:  Election,  1879-80; 
duties,  1880-1. 

Lindsay,  J.  H.:  Term  of  treasurers, 
844-45;  board  of  education,  1057-8, 
1702-3;  agriculture  and  immigration, 
2093;  intoxicating  liquors,  2110-1, 
2597-8. 

Local  Option:  (See  "Intoxicating  Li- 
quors ; "  "Preamble  and  Bill  of 
Rights.") 

M 

Marshall,  James  W.:  Bill  of  rights,  259; 
quadrennial  sessions,  493-5;  board  of 
education,  1113-4;  judiciary,  1481-3; 
Univ.  of  Va.  appropriation,  1720-1. 

Mason  Law  (Corporations) :  Compared 
with  corporation  committee's  minor- 
ity report,  2204-7,  2249;  ineffective- 
ness of,  2271;  history  of,  2435-6. 
(See  "Common  Carriers;"  "Corpora- 
tion Commission;"  "Corporations.") 

Members  of  Convention,  1-3. 

Memorial  Exercises:  Death  of  President 
McKinley,  471-87. 

Meredith,  Charles  V.:  Smaller  juries, 
456-7;  quadrennial  elections,  540-5; 
condemning  property,  725-31;  appro- 
priations to  sectarian  institutions, 
806-13;  executive  department,  1046-7, 
superintendent  of  public  instruction, 
1105-9,  1119-21;  board  of  education, 
1214-16;  compulsory  education, 
1234-6;  state  penitentiary,  1266-8, 
1284-5;     judiciary,     1351-6,  1393-7, 


INDEX 


3i:95 


14SS-91,  1594-6,  1624-6;  Univ.  of  Ya. 
appropriation,  1712-3;  board  of  educa- 
tion, 1795-7.  1804-5;  municipal  cor- 
porations, 1952-7;  municipal  fran- 
chises, 1992-4;  agriculture  and  immi- 
gration, 20S2-5;  corporations,  23 60-52"; 
taxation,  2632-40,  2661-6;  corpora- 
tions, 2S3S-41;  method  of  adop^^ng 
constitution..  3226-45;  adjournment, 
3266-S,  32S1-5. 

Moore.  R.  TValton:  On  oath,  11,  S5-S7; 
against  committee  of  whole,  319;  for 
smaller  juries,  355;  quadrennial  elec- 
tions, 460-71;  parliamentary  rule, 
548;  auditing  committee,  643;  special 
legislation,  679-Sl;  condemning  prop- 
erty, 724;  to  incorporate  churches, 
771-7;  term  of  treasurers,  845-6; 
county  accountant.  1024;  board  of 
education.  1098-1101;  judiciary, 
1359-62.  1527-32;  method  of  adopting 
constitution.  31S1-S. 

Moore,  Thomas  L.:  Bill  of  rights.  226- 
230;  McKinlev  memorial.  42S-5; 
board  of  education  10S3-7;  adjourn- 
ment. 3277-S. 

Montague.  A,  J.:  Inaugural  address, 
1709-11. 

Municipal  Corporations:  Organization 
and  government,  1888-99;  charters, 
1899-1903;  corporation  court  judge, 
1903-9;  clerk  of  court,  1909-1910; 
commissioner  of  revenue,  1910-17; 
treasurer.  1917-34;  city  councils, 
1934-52.  2024-32:  mayor,  power  of  veto. 
1952-60;  franchises,  1960-85,  1991-5. 
2002-5.  2032-40:  form  of  government, 
2760-75. 

Mcllwaine.  Richard:  Bill  of  rights.  242; 
McKinlev  memorial,  479-S2;  limiting 
debate,  615;  special  legislation.  673; 
to  incorporate  churches,  755-9;  public 
instruction,  1050-6,  1071-3;  board  of 
education.  1181-4;  compulsory  educa- 
tion. 1333-4;  judiciary,  1431-32;  school 
funds,  1667-70;  Univ.  of  Va.  appropria- 
tion. 1713-4.  1719-20:  city  treasurers, 
1921-3;  suffrage,  29^6-3006. 

N 

Xewion.  Virgirius:  Quadrennial  session, 
550-6,  562-3,  606-12;  commissioners  of 
revenue,  928-29;   resignation  of,  956. 

O 

Oath:    The  debate  thereon,  3-17,  29-87; 

vote  on  question.  17,  88. 
Oyster   Legislation:    Retention  of  beds 

by  state,  2SS0-1.    (See  "Taxation  and 

Finance.'") 

OTlaherty,  D.  C:  Bill  of  rights.  132- 
142;  against  smaller  juries,  359-362;  i 
majority  verdict,  428-31;  quadrennial  ; 
sessions,  529-36;  auditing  committee. 
644-5;  special  legislation,  677-9;  right 
of  appeal.  917-19;  commissioners  of 
revenue,  963-5;  board  of  supervisors, 
1007;    board   of   education,  106D-64, 


1128-30,  1697-1702;  judiciary,  1380-90; 
1544-8;  Univ.  of  Ya.  appropriation, 
'  1751-3;  agriculture  and  immigration, 
2074-5;  intoxicating  liquors,  2108-11, 
2119-20;  corporations,  2540-2;  ad- 
journment, 3276-7. 

P 

Parks,  R.  S.:  Bill  of  rights.  142-151; 
smaller  juries,  457;  eligibility  for 
legislator,  616-17;  special  legislation, 
653-4;  condemning  property,  711-14; 
board  of  supervisors.  1006;  judiciary 
1556-7;  agriculture  and  immigration, 
2047-S;  corporations,  2516-20;  intoxi- 
cating liquors.  2600-2; 

Parliamentary  Rules:  Discussion  of.  546- 
550;  change  of,  687. 

Fedigo.  A.  L.:  Bill  of  rights,  210-213; 
suffrage,  3046-58;  method  of  adopting 
constitution,  3178-81. 

Pensions:    Special  tax  for,  2913-31. 

Pettit,  William  B.:  Temporary  chair- 
man, 1;  bill  of  rights.  10S-il3;  ma- 
jority verdict,  404-10.  907-08;  abolish- 
ing treasurers,  876-7;  trial  without 
jury.  8S2-4:  commissioners  of  revenue. 
932-34;  board  of  education,  112S. 
1145-7. 

Pollard.  John  Garland:  On  omitting 
word  '■■Christian"  from  bill  of  rights, 
S2S-30:  judiciary,  1426-S. 

Portlock,  Y'illiam  X.:  Special  legisla- 
tion, 659-60.  670-3;  term  of  sheriffs, 
822-23;  abolishing  treasurers,  868-72; 
commissioners  of  revenue,  961-63; 
executive  department,  1047-8;  board 
of  education.  1176-9; ,  state  peniten- 
tiary, 1257-61;  state  hospital  boards, 
1298-1300;  judiciary.  1507.  1517; 
judges'  salaries.  1737-9;  agriculture 
and  immiarration.  2049-50;  stiffrage, 
3032-4. 

Preamble  and  Bill  of  Rights:  Report  of 
committee,  91;  amendments  pro- 
posed. 95-97.  99;  debate  on.  100-188, 
194-307;  motion  to  strike  out  art.  11. 
310;  speeches  on  same.  311-316;  home- 
stead exemption.  2098.2107;  stay  laws. 
2107;  heirs  of  property.  2108;  sale  of 
intoxicating  liquors,  2108-2139;  sec.  1 
and  amendment  proposed,  2108-ll; 
debate  on,  2112-2139;  licensing 
saloons.  2578-2610;  amendments  to 
constitution,  how  proposed.  2610- 
2624;  exemptions  from  execution  and 
attachment,  2745-8;  local  option  laws, 
2748-52:  changes  in  constitution, 
2752-9. 

Preamble:  Amendments  to.  95.  99:  dis- 
cussion of.  100-188.  194-307. 

Proclamation:  Right  of,  117-307.  3100- 
3260. 

Property:  Condemning  for  public  use, 
687-732;  right  of  churches  to  hold, 
732-782;  heirs  of.  2108;  exempt  from 
execution  or  attachment.  26S1-2700. 
2860-80,  2882-9;  assessments  of, 
2902-7. 


3296 


INDE  X 


Public  debt  of  Virginia,  2892-2902;  litiga- 
tion withi  West  Virginia  over,  2892- 
2901;  sec.  22  of  taxation  committee's 
report  withdrawn,  2902.  (See  "Taxa 
tion  and  Finance.") 

Public  Institutions  and  Prisons:  Report 
of  committee,  1196-7;  state  peniten- 
tiary, 1249-1288;  adoption  of  report, 
1871. 

Public  Instruction:     (See  "Education.") 
Q 

Quarles,  J.  M.:  On  oath,  78-84;  commit- 
tee of  whole,  821-326;  majority  ver- 
dict, 410-14;  term  of  treasurers,  837-8; 
board  of  education,  1058-60,  1157-62; 
judiciary,  1408-15,  1451,  1458,  1466-8, 
1517-9,  1723;  intoxicating  liquors, 
2586-93. 

R 

Railroads:  (See  "Common  Carriers;" 
"Corporations.") 

Railroad  Commissioners:  Abolition  of, 
2501.  (See  "Corporation  Commis- 
sion.") 

Recess  of  Convention,  2465. 

Reduction  of  Expenses:  Reports  of  com- 
mittee, 94,  98,  108,  116,  131,  255-256. 

Resignation  of  Mr.  Newton,  956. 

Richmond,  J.  B.:  Bill  of  rights,  205-210; 
smaller  juries,  375-9;  quadrennial 
sessions,  509-13,  559-61;  board  of 
education,  1147-9;  judiciary,  1601-3. 

Roads:  Public,  appropriation  for, 
2889-92.  (See  "Taxation  and  Fi- 
nance.") 

Robertson,  W.  Gordon:  Smaller  juries, 
366-8;  trial  without  jury,  391-3; 
majority  verdict,  415-18;  quadrennial 
sessions,  522-28;  special  legislation, 
651-3;  condemning  private  property, 
687-96,  722-24;  to  incorporate  churches, 
733-44;  appropriations  to  sectarian 
institutions,  792-4;  board  of  super- 
visors, 988-91;  county  treasurers, 
1016-8;  state  hospital  boards,  1302; 
judiciary,  1313-28,  1343-6;  county  offi- 
cers, 1765-7;  city  councils,  1934-6; 
corporations,  2243-54;  amending  con- 
stitution, 2614-6,  2619-21;  method  of 
adopting  constitution,  3204-11. 

S 

Salaries:    Judges,  1725-39. 
Schedule,  3097-8. 

School  Trustees:  Election  and  term, 
1828-30.  ■ 

Secretary  of  the  Commonwealth:  Elec- 
tion, 1881;  duties,  1882-7;  how  elected, 
2727-33. 

Senate:    Election  of  members,  3093-6. 

Sheriff:  Term  of,  818;  do  work  of  treas- 
urer, 846-878,  1778. 

Smith,  Francis  L.:  Special  legislation, 
654;  bill  of  rights,  920-23;  V.  M.  I. 
appropriation,  1986-91. 


State  Charities,  1237-1244,  1304-5. 
State  Library:    Management,  1186-93. 
State  Treasurer:    How  elected,  2739-41 
2744. 

Stebbins,  Joseph:  Bill  of  rights,  151-155; 
quadrennial  sessions,  580-3;  to  incor- 
porate churches,  759-67;  board  of 
education,  1173;  corporations,  2254-69, 
2382-92;  personal  privilege,  3287-8. 
Stuart,  Henry  C:  Special  legislation, 
669-70;  abolishing  treasurers,  875; 
board  of  supervisors,  994-5;  board  of 
education,  1168-70;  agriculture  and 
immigration,  2040-7,  2064-6;  personal 
privilege,  2453-4. 
Suffrage:  Right  of,  2937-3080;  the  suff- 
rage article.  2937-40;  method  of  con- 
sideration, 2940-3;  presentation  of  re- 
port and  general  discussion,  2943-57; 
sec.  1  and  amendnrents,  2957-8;  sec.  2, 
temporary  understanding  clause, 
2958-3018;  sec.  3,  preparation  of  bal- 
lot, 3018-24;  sees.  4,  5,  6,  adopted, 
3024;  sec.  7,  kind  of  ballot,  3024-5; 
sees.  8,  9,  adopted,  3025;  sec.  10,  elec- 
tors, 3025-9,  sec.  11,  electoral  board, 
3029-39;  sees.  12  to  16  inclusive, 
adopted,  3039-40;  independent  section, 
balloting  machines,  3040-1;  sec  17, 
lists,  3041-4;  substitute  for  suffrage 
article,  3044-77;  adoption  of  article 
and  reference  to  committee  on  final 
revision,  3080. 

Summers,  John  C:  Bill  of  rights,  213- 
226;  smaller  juries,  379-81;  judiciary, 
1347-8,  1548-56,  1574-6;  intoxicating 
liquors,  2594-7;  taxation,  2649-51. 

Superintendent  of  Public  Instruction: 
(See  "Education.") 

Supreme    Court:    Jurisdiction,  1613-35, 
1721;  election  of  judges,  1888;  power 
over  corporation  commission,  2468. 
T 

Taxation  and  Finance:  Report  of  com- 
mittee, 2624;  discussion  and  amend- 
ments, 2624-2727 ;  taxation  in  general, 
2625-30;  reassessment  of  real  estate 
and  special  assessment,  2630-41, 
2643-6;  .  income  tax,  and  licenses, 
franchises,  etc.,  2641-3 ;  capitar 
tion  tax,  2646-53;  running  of 
statute  of  limitations  against  taxa- 
tion, 2653-60;  com.mon  carriers, 
2661-70;  franchise  tax  on  carriers, 
2670-1;  report  of  state  (corporation 
commission  of  property  liable  to  tax, 
2671;  mode  of  relief,  2672-3;  fran- 
chise tax,  2673-82;  property  exempt 
from  taxation,  2681-2700;  contracting 
of  state  debt,  2701-2;  collection  and 
disbursement,  2702-4;  amendment  to 
and  discussion  of  miscellaneous  sec- 
tions, 2704-27;  sec.  3,  2856-60;  sees. 
4,  5,  6,  7,  2860-80;  sees.  8  lo  15,  2880-2; 
sees.  16  to  23,  2882-92;  reconsideration 
of  sec.  22,  2892-2902;  reversiofi  to  sec. 
2,  assessments  of  real  estate,  2902-7; 


INDEX 


3297 


independent  sections,  2907-31;  ref- 
erence to  committee  on  final  adjust- 
ment, 2931.  (See  "Pensions;"  "Pub- 
lic Debt;"  "Property;"  "Oysters;" 
"Roads.") 

Telegraplis  and  Telephones:  Regula- 
tions, 2513-32;  conflict  with  common 
carriers,  2515-32;  rights  of  cities  and 
towns  in  regard  to,  2520-25;  fixtures, 
2525-7;  negligence,  2530-2.  (See  "Cor- 
porations.") 

Testimonial  to  President,  3263-5. 

Thorn,  A.  P.:  On  oath,  15,  30-42;  to  incorpo- 
rate churches,  777-82;  appropriations 
to  sectarian  institutions,  794-5;  com- 
missioners of  revenue,  925;  board  of 
education,  1094-5;  judiciary,  1348-50, 
1397-1402;  municipal  franchises, 
1964-9;  corporations,  2406-19,  2459-62, 
2794-8,  2841-5;  suffrage,  2958-93; 
method  of  adopting  constitution, 
3246-57;   personal  privilege,  3261-2. 

Thornton,  J.  B.  T.:  Auditing  committee, 
G49-50;  term  of  sheriffs,  821-22; 
abolishing  treasurers,  855-59;  board 
of  education,  1136-9,  1152-3. 

Treasurers:  Term  of,  836;  to  abolish 
office  of,  846-878;  vote  to  abolish, 
878;  ineligibility  after  second  term, 
973-81,  1019-23;  re-election,  1767-9. 

Tudor,  Rev.  W.  V.,  D.  D.:  Praj^er  and 
address  McKinley  memorial,  473-5. 

Turnbull,  Robert:  Quadrennial  sessions, 
495-507;  parliamentary  rule,  547; 
auditing  committee,  642;  special 
legislation,  655-6.  660-61,  673-6;  appro- 
priations to  sectarian  institutions, 
813-15;  trial  without  jury,  886-9; 
board  of  supervisors,  982-7,  999-1003; 
e.vecutive  department,  1031-2,  1036-8; 
state  hospital  boards,  1295,  1300-1; 
judiciary,  1613-15;  school  funds, 
1671-7;  intoxicating  liquors,  2111-4, 
2122-4. 

Tyler,  .J.  Hoge:  Address,  23-24;  McKinley 
memorial,  475-6. 

U 

University  of  Virginia:  Appropriation 
for,  1712-21,  1751-64,  1838-42. 

V 

Virginia  Military  Institute:  Appropria- 
tion for,  1751-64,  1838-42,  1986-91. 


Waddill,  S.  P.:  Personal  statement,  233; 
trial  without  jury,  389-91,  892-95; 
special  legislation,  661;  board  of  su- 
pervisors, 9096;  state  hospital  boards, 

i  1302-3;  board  of  education,  1681-9. 

Walker,   C.   Harding:    Right  of  appeal, 
917-18;    state    penitentiary.  1280-2; 
judiciary,  1439-40. 
Watson,  Walter  A.:    Term  of  treasurers, 

I  836-7,  973-7;  board  of  education,  1131- 

I  34,  1198-1200,  1798-1800;  school  funds, 

I  1221-8;  state  hospital  board,  1291-2; 

■  agriculture  and  immigration,  2070-3; 

I  suffrage,  3066-72 ;  adjournment, 

I  3278-81. 

j     West  Virginia   and   Virginia:  So-called 

j  "public  debt,"  2892-2902. 

I  Westcott,  N.  B.:  Against  smaller  juries, 
362-364;  condemning  property,  696- 
707;  board  of  education,  1809-10:  in- 
toxicating liquors,  2126-37,  2605-10; 
adjournment,  3269-71. 
Wicidiam,  Henry  T.:  McKinley  memo- 
rail,  477-9. 

Wise,  George  D.:  Smaller  juries,  365-6; 
j  quadrennial  sessions,  612-14;  eligible 

for  legislator,  617-18;  abolish  commit- 
tee of  whole,  829-31;  superintendent 
of  public  instruction,  1110-1;  suffrage, 
3065-6;  method  of  adopting  constitu- 
tion, 3139-63. 
I  Withers,  Eugene:  Quadrennial  sessions, 
I  515-17,   563-7;    to  abolish  committee 

i  of  whole,  825-27;  to  abolish  office  of 

i  treasurers,  846-55,  872-74;  commission- 

ers of  the  revenue,  944-55,  966-70; 
term  of  treasurer,  1023;  board  of 
education,  1097-8;  judiciary.  1328- 
1340,  1371-6,  1440-50,  i485-7;  executive 
department,  1882-85;  corporations, 
2269-2311. 

Wysor,  J.  C:  On  oath.  6.  50-56;  bill  of 
rights,  117-130,  260-277;  term  of 
sheriffs.  818-19;  compulsory  educa- 
tion, 1234;  city  treasurers,  1925-8; 
corporations,  2320-9;  amendments  to 
constitution,  2618-9;  taxation.  2706-13; 
corporation,  2836-8;  suffrage.  2993-6; 
method  of  adopting  constitution, 
3210-26;  adjournment,  3272-4. 


V1 rgtnla.  Const  1  tut  1 onal  

Convention,  1901, 

Report  of  the  proGeedlng.q  and 
debates. . .  . 

 vol  .  2  ^  

DATE        I  ISSUED  TO 

1  

lo  -4-  u,  \  \  ^  -  ■   -  t'^"'^ 


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